Susan Gaudet v. Robert Gaudet (2013)

MEMORANDUM OF DECISION REGARDING MOTION FOR CONTEMPT (# 120)

A review of the record reveals that the parties were divorced February 25, 2010 pursuant to a marital separation agreement.   The defendant husband filed a motion for contempt on March 19, 2012 (# 116) alleging that the plaintiff wife was in arrears on the mortgage for the former marital residence in violation of the court order.   The motion was denied on April 16, 2012 (Vasington, J.).   The defendant filed a motion to reargue and filed a motion for clarification claiming that the motion for contempt had been denied by the court “without admitting any evidence, hearing any testimony or making any formal findings for the record.”   The defendant filed a second motion for contempt on December 18, 2012 (# 120) again alleging that the plaintiff was in contempt and “is currently in arrears on the mortgage for the real property ․ the arrearage is $4,391.74.”   The parties appeared before the court on January 22, 2013 and entered into an agreement that the plaintiff would bring the mortgage current.   The parties appeared before the court on February 19, 2013 wherein the plaintiff was found in contempt, ordered to bring the mortgage current and ordered to pay counsel fees.   The defendant was ordered to authorize the mortgage company to speak with and cooperate with the plaintiff.   The matter was continued until April 22, 2013 at which time the plaintiff was ordered to provide proof of mortgage payments, pay additional attorneys fees and the matter was continued until May 28, 2013.   On May 28, 2013, the parties entered into an agreement wherein the motion for contempt would be continued until June 10, 2013, the plaintiff would provide verification of a repayment plan, which she claimed she had entered into with the bank, and the plaintiff agreed to continue to make timely mortgage payments.   The parties returned to the court on June 18, 2013 at which time the defendant requested that the court take more drastic measures including ordering that the marital residence be sold.

At the hearing conducted before the undersigned on June 18, 2013, the plaintiff testified that the mortgage continues to be in arrears and that she is unable to bring the mortgage current or to effectuate a refinance in her own name.   She argued that the defendant husband should be obligated to enter into a mortgage modification with the bank which would effectively take the present arrearage and place it at the end of the mortgage thus making the mortgage technically current at this time.   The husband objected to this request and argued that there is nothing in the divorce agreement requiring him to take on further and greater obligations pertaining to this mortgage.

The operative language in the dissolution agreement is contained in paragraph 5 as follows:

Wife will have the right to sole possession and assume the financial responsibility for real property located at 60 Nelkin Road, Colchester, Connecticut.   The husband shall quitclaim his interest in said property in consideration of $50,000 to be paid by the wife no later than six years from the date of this instrument ․ wife will also refinance the aforementioned ․ mortgages within the next six years and have husband's name removed from the mortgages and his obligations of said mortgage is terminated.   Wife shall indemnify and hold husband harmless from any claim or action arising from, or in connection with, the nonpayment of their respective obligations herein.

LEGAL DISCUSSION

The court in Danehy v. Danehy, 118 Conn.App. 29 (2009), held that “Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts.”   Cushman v. Cushman, 93 Conn.App. 186, 191, 888 A.2d 156 (2006).  “When the language is clear and unambiguous ․ the contract is to be given effect according to its terms ․ [N]o room exists for construction.”  Greenburg v. Greenburg, 26 Conn.App. 591, 596, 602 A.2d 1056 (1992).   A court simply cannot “disregard the words used by the parties or revise, add to, or create a new agreement.”  Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973).

The court in Isham v. Isham, 292 Conn. 170, 180 (2009), held that:

[I]t is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as a contract and construed in accordance with the general principles governing contracts.  Issler v. Issler, 250 Conn. 226, 234–35, 737 A.2d 383 (1999).”

The court in Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991), held that “strong policy that the private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.”   Negotiated settlement of these affairs conserves judicial resources and encourages private resolution of family issues.   Additionally, the government has an interest in preserving and enforcing orders that were entered by the courts in dissolution proceedings after a determination that the judgment is fair and equitable.

Finally, it is well and firmly established that “[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”  Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984);  accord Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005);  Krafick v. Krafick, 234 Conn. 783, 806, 663 A.2d 365 (1995);  Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993);  Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989);  Picton v. Picton, 111 Conn.App. 143, 149–50, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009);  Chyung v. Chyung, 86 Conn.App. 665, 668, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005);  Quindazzi v. Quindazzi, 56 Conn.App. 336, 339, 742 A.2d 838 (2000);  Cordone v. Cordone, 51 Conn.App. 530, 533, 752 A.2d 1082 (1999);  Puris v. Puris, 30 Conn.App. 443, 449, 620 A.2d 829 (1993);  Watson v. Watson, 20 Conn.App. 551, 557, 568 A.2d 1044 (1990), rev'd in part on other grounds, 221 Conn. 698, 607 A.2d 383 (1992);  Daly v. Daly, 19 Conn.App. 65, 70, 561 A.2d 951 (1989);  Cuneo v. Cuneo, 12 Conn.App. 702, 710, 533 A.2d 1226 (1987).   Although these cases concern appeals from dissolution judgments crafted by the court, the principle they reiterate is no less true when the parties have negotiated an agreement.   Indeed, stipulations for judgment often include very delicately balanced and carefully negotiated terms in the resolution of important family issues.  General Statutes § 46b–66(a) recognizes this delicate balance and requires courts either to accept or to reject those agreements in their entirety.   When the court approves of a stipulated judgment, it cannot later be set aside “unless the parties agree to do so or it is shown that the judgment was obtained by fraud, accident or mistake.”  Bernet v. Bernet, 56 Conn.App. 661, 666, 745 A.2d 827, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000).

There is nothing in the agreement entered into by the parties requiring the defendant husband to do anything whatsoever.   The request of the wife that he enter into a mortgage modification which obligates him to a greater obligation than he is already under, is simply not required by either the facts or the law in this instance.   While it was clearly the intention of the parties that the wife would maintain the marital residence for the benefit of the minor children and that she would be able to assume the financial obligations associated therewith, it appears that she is not able to do so.   While the husband may, in his discretion, agree to additional terms and conditions, there is nothing in the law to require him to do so.

For the foregoing reasons, the parties are ordered to select a mutually agreeable realtor and place the home on the market for sale within the next three weeks.   The court will retain continuing jurisdiction regarding the terms and conditions of the sale and the parties may return to court if they are unable to agree as to any terms and conditions.

Shluger, J.

Shluger, Kenneth L., J.