Kimberly Blanchette v. Gary Tremblay (2013)

MEMORANDUM OF DECISION

Plaintiff seeks enforcement of an alleged Separation Agreement dated June 26, 1998, particularly with respect to language concerning defendant's pension benefits and whether plaintiff should share in those benefits.

Following a full trial, the court finds that the parties were married to each other from October 3, 1983, through August 26, 1998, when their marriage was dissolved in proceedings before the late Judge Michael Conway.   The court has taken judicial notice of the dissolution file, captioned “Kimberly Tremblay v. Gary Tremblay ” and bearing docket number WWM FA 98 0057777.   That file contains a handwritten separation agreement with provisions for custody of the parties' two minor children, child support, and related matters, a copy of which has been made exhibit 1 in this case, which they executed on June 13, 1998, before a notary.   Neither party was then represented by counsel.   On August 26 of that year they appeared for a dissolution hearing, still representing themselves, and presented that agreement to the court.   Judge Conway reviewed the document, canvassed the parties as to its meaning and their intentions that the decree embody its provisions, and then entered orders consistent ¹ with that agreement;  exhibit 3.

The court did not, however, incorporate the agreement into the judgment.   The agreement is handwritten on two sides of one sheet of paper.   The first page includes the items described in the paragraph above, and at the foot of that page the parties affixed their signatures.   Beginning on the bottom of page 1, and continuing onto the back of that page, was an additional paragraph which is at the heart of this suit—namely, a provision that the plaintiff would share in a defined percentage in the pension benefits payable to defendant at the time of his retirement.   That agreement specified exactly ² that:

¶ 9:  Other:  Husband (Defendant) has agreed that upon his retirement that 25% of his pension shall be paid to wife (plaintiff) ․ Regarding pension 50% payment to wife (defendant) (sic) upon husband's death shall remain active, with remaining 50% paid to children.   If husband has remarried pension shall be split upon his death equally between plaintiff and current spouse.

The transcript of the proceedings before Judge Conway (exhibit 8) make it clear that while he reviewed page 1 and fashioned his orders in response to all of its other provisions, no mention was made relative to the now-contested issue of pension distribution;  apparently that portion of the text was overlooked, and neither party brought this oversight to his attention.

Exhibit 2 is a copy of the same separation agreement, but it includes some additional language added as of August 17, 2000, which amends the provisions of the original.   The main purpose of the amendment was to alter some details relating to defendant's listing the parties' two then-minor children as beneficiaries on his life insurance policy.   No substantial alteration was made relative to the pension issue.

In 2011, defendant was injured on the job.   As he convalesced, retirement became his best option and he did in fact retire effective May 1, 2011.   At that time, plaintiff became aware that the 1998 dissolution decree was silent as to the pension, and that no qualified domestic relations order sufficient to insure her share in the pension had ever been prepared (nor, in light of the extent of the court orders, could have been).   She filed a motion to “clarify” the judgment by adding a provision relative to the pension, but the court (Graziani, J.), denied her motion due, in part, to defendant's vigorous objection to its being granted.   For twenty-five months beginning on May 1, 2011, defendant received monthly benefits of $1,175.50, and totaling $29,387.50.   Upon satisfaction of technical requirements within the pension documents, the monthly benefit went up to $1,694 per month effective with the payment due June 1, 2013, and will continue at the higher rate as long as defendant lives.   From June 1 through October 1, he has received an additional $8,470, bringing total payments thus far to $37,857.50.   Twenty-five percent of what he has received to date is $9,464.38.

Defendant has paid plaintiff none of that amount.   His answer to her complaint in this action admits the complaint's allegations as to the marriage and the dissolution, and as to his receipt of the pension and refusal to make any payments to her.   The answer denies the existence and effect of the separation agreement, denies the allegation that the agreement was modified by the parties in 2000, and denies that plaintiff has any entitlement to a share in the pension.   He filed no special defenses.

Lucisano v. Lucisano, 200 Conn. 202 (1986), establishes that a judgment of dissolution of marriage does not extinguish rights a party might have under a separation agreement merely because a court failed to incorporate certain provisions of such agreement within the final decree.   In that case, the parties had executed an agreement on the date of their hearing on a legal separation (which the court later modified to a decree of dissolution).   Neither the original nor the subsequent decree incorporated a provision of the agreement relating to New York real estate owned by the parties.   The Supreme Court held that the agreement remains a valid contract between the parties, enforceable outside the family court, unless the court has previously determined that its provisions are invalid.   Defendant has offered no authority to contradict that holding or distinguish its applicability to the facts of this case.

As to whether the agreement is enforceable today, the court has applied the test set forth in McHugh v. McHugh, 181 Conn. 482 (1980).   Although McHugh involved an agreement entered into by the parties prior to the marriage, the criteria it established regarding enforcement of antenuptial agreements have been used in evaluating the validity of separation agreements entered into after a marriage but in anticipation of a divorce.   See, Weiss v. Weiss, Docket No. FA99 0071672S, Superior Court, Tolland judicial district (2003;  Scholl, J.);  Wilmot v. Wilmot, Docket No. FA95 0147844, Superior Court, judicial district of Stamford/Norwalk (1998;  Tierney, J.).   The McHugh court stated that agreements relating to the rights of the parties to marital property upon the dissolution of the marriage are generally enforceable where:  (1) the contract was validly entered into;  (2) its terms do not violate statute or public policy;  and (3) the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work injustice.

Defendant contends that he did not validly enter into the contract, but this court finds that premise wholly unsupported by the credible evidence.   Plaintiff reported that the parties jointly discussed the terms of their agreement, which she then drew up in her own handwriting.   The court notes that the parties signed it at a location different from their own home, in the presence of a notary who indicated that they acknowledged their signatures to be their free act and deed.   Defendant now claims that he was “too distraught” and “had no clue” as to the provisions of the document.   Though he was unrepresented by counsel in 1998, so was his then-wife.   He was a union member and had the right to free counsel as a benefit of that status.   Because unnamed “guys” told him at the time that a free lawyer would do nothing for him, he did nothing to obtain counsel.   He signed the agreement in June and had ten weeks in which to obtain answers to any questions about it before it was submitted to the dissolution court in August, yet he allowed that time to pass without in any way educating himself as to the meaning of a document which no reasonable person would deem to be insignificant.   He accepted the provisions of the agreement which benefitted his interests.   Furthermore, he entered into a modification agreement two years later, again without availing himself of counsel and without in any discernible manner protesting the existence or the terms of the document.

In addition, the court notes that the specific provision challenged here is unlike the complicated terms of the separation agreement present, for instance, in Issler v. Issler, 250 Conn. 226 (1999), as to the meaning of which even judges disagreed.   The agreement between the parties here is patently simple to understand;  no person of moderate intelligence can deny knowing what “25% of my pension” means, and the court is satisfied that defendant has at all times understood precisely what that language means.   Also, its subject matter is a standard topic for discussion in a dissolution proceeding.   Viewed objectively, no one familiar with family court standards could conclude upon the facts of this case that an award to one spouse of 25% of the other's pension after a marriage of fifteen years was not normal, foreseeable, or fair.

This court finds that defendant's testimony that he did not enter into the agreement with full knowledge of its terms is incredible, and that the plaintiff's version of what transpired between the parties is the more truthful rendition of their bargain.

There was no argument made, nor that could have been made, that the agreement's term at issue violates statute or public policy.   Also, the court finds that the circumstances of the parties at the time the marriage was dissolved were substantially identical to those which existed at the time the agreement was signed, and so no argument is available that the enforcement of the contract at the time of dissolution would work an injustice due to some change beyond the contemplation of the parties that had occurred between June and August.   Thus neither the second nor the third prongs of the McHugh test present any impediment to the enforcement of this agreement.

This court has not overlooked defendant's claim of being “distraught” throughout the 1998 proceedings.   This challenge suggests duress, a defense which ought to have been raised by special defense in this action.³  Because defendant's testimony supporting this defense came in without objection, however, this court has evaluated that testimony in light of Jenks v. Jenks, 232 Conn. 750 (1995).   The Jenks case holds that if a party in a family matter seeks to avoid an obligation backed by a stipulated judgment—or, as applies to this case, the stipulation or agreement upon which a judgment might have been entered—on the basis of duress, that litigant must persuade the finder of fact that the misconduct of one party induced the party seeking to avoid the stipulation to manifest assent thereto, not as an exercise of that party's free will but because that party had no reasonable alternative in light of the circumstances as that party perceived them to be.   At the core of defendant's testimony is a claim that plaintiff told him that if he did not sign the agreement she would call the police and report his abusive behavior to them.   Assuming, arguendo, that plaintiff made such a threat (which she denies), it might suffice as proof of duress if there were no abuse to report, if the plaintiff were a clearly dominant figure in the relationship, if the agreement had not been signed before a notary with defendant's indication that he had signed it freely and voluntarily, if he had not had ample opportunity to consult with an attorney as to his concerns before the document saw the light of day when presented to the trial court in August, and if the defendant had not voluntarily engaged in a modification transaction two years following the allegedly distressful events of 1998.   This court heard no evidence of spousal abuse by or against either party during the marriage, but its observation of their size and demeanor revealed no basis upon which to conclude that defendant could not stand up to plaintiff if he chose to do so;  the remaining conditions outlined are also at odds with the factual findings already discussed above.

Defendant stands before this court in a position somewhat similar to that of Baleslaw Majkowski, a defendant in the interpleader case of McCarthy v. Taniska, 84 Conn. 377 (1911).   That case is cited favorably by the Jenks court.   Mr. Majkowski was named as the father of Ms. Taniska's unborn child, and was arrested on a bastardy ⁴ warrant.   To obtain his release, he tendered $320.70 as a bond refundable to him if he married the young woman within the next ninety days.   Despite subsequently deciding not to give up his bachelor status, he argued that the bond should nevertheless be returned to him as the circumstance that he had posted it solely to get out of jail constituted duress.   Not so, the Supreme Court held.   The fact that a party enters into a contract under difficult circumstances does not mean that that party was thereby deprived of the free exercise of his will, which would thus vitiate the enforceability of his agreement.   The test is whether he remained free to exercise his own will.   While the conduct of paternity proceedings may have changed dramatically in the past century, the McCarthy court's definition of the law of duress appears intact.   In the present case, the court finds that nothing defendant attributes to the plaintiff amounts to behavior so illegal, deceptive, or oppressive on her part as to substantiate his implicit claim that he acted under duress.

While I have no doubt that plaintiff has proven her right to an order providing her with the benefits to which the separation agreement entitles her, I remain concerned whether “what she is entitled to” is as clear as she asserts, and particularly whether any orders I enter will fully insure her receiving those benefits.   Only the dissolution court can enter a qualified domestic relations order directed to the pension plan administrator;  since a qualified domestic relations order is not an option available to this court, what form ought a judgment in this case to take?   Secondly, is the agreement's provision regarding post-mortem increase in the former spouse's pension benefit (25% to 50%) allowable under defendant's plan, or allowable retroactively now that the pension is in pay status?   Thirdly, is the provision regarding post-mortem payment to the children issue of the marriage allowable under the plan?  (These last two questions, frankly, would apply to any known plan, or to any review by a court of this type of agreement).

This last concern explains an omission within the orders entered below of any provision with respect to the children sharing in defendant's pension plan;  it is a deliberate omission.   I doubt that any pension plan has provisions entitling children of a pensioner to share in their deceased parent's pension;  I raised this doubt with plaintiff in these proceedings, but was not provided with any authority or evidence to the contrary.   Further, I note that these third-party beneficiaries of their parents' marital dissolution agreement are now of the age of majority but were conspicuously absent from this case in all respects.   If they believe themselves entitled to a share of their father's pension they can raise that concern on their own as they in their discretion determine.

With these considerations in mind, it is hereby ORDERED:

1. Judgment shall enter for the plaintiff.

2. Defendant shall pay to plaintiff the sum of $9,464.38, together with interest at the rate of ten per cent per annum from October 1, 2013 through date of payment as allowed by C.G.S. § 37–3a;

3. Thereafter, on the first day of each subsequent month commencing November 1, 2013, and throughout the remaining life of both parties, he shall pay to her the sum of $423.50 per month.   This order may be deemed satisfied in full upon the acceptance by defendant's pension plan administrator of a qualified domestic relations order issued by the family court requiring that administrator to make monthly payments to plaintiff equal to 25% of defendant's monthly pension award.

4. If defendant should predecease plaintiff, his estate will remain indebted to her for the balance of her natural life in the amount of $847 monthly payable on the first day of the month following his death.   This order may be deemed satisfied in full upon the acceptance by defendant's pension plan administrator of a qualified domestic relations order issued by the family court requiring that administrator to make monthly payments to plaintiff equal to 50% of defendant's monthly pension award during her lifetime following his death.

5. Costs may be taxed to defendant.

Boland, J.

FOOTNOTES

FN1. As used here, this adjective merely denotes that the court orders covered the same subject matter as the parties had in their agreement.   In one significant respect the court did not accept their terms.   They had agreed that defendant would pay plaintiff child support in the amount of $50 weekly.   The State of Connecticut, which was involved on account of plaintiff's receipt of state assistance, objected on the basis that child support guidelines showed presumptive support to be $150 per week, and no reason for deviation was evident.   The court entered an order of $150 per week, apparently on public policy grounds.   That aspect of the dissolution court proceedings was not challenged by either party.   Its relevance to the present controversy is that it demonstrates that Judge Conway did in fact review the agreement of the parties at the time of the hearing, and confirms the impression that he simply missed the content that is at issue today..  FN1. As used here, this adjective merely denotes that the court orders covered the same subject matter as the parties had in their agreement.   In one significant respect the court did not accept their terms.   They had agreed that defendant would pay plaintiff child support in the amount of $50 weekly.   The State of Connecticut, which was involved on account of plaintiff's receipt of state assistance, objected on the basis that child support guidelines showed presumptive support to be $150 per week, and no reason for deviation was evident.   The court entered an order of $150 per week, apparently on public policy grounds.   That aspect of the dissolution court proceedings was not challenged by either party.   Its relevance to the present controversy is that it demonstrates that Judge Conway did in fact review the agreement of the parties at the time of the hearing, and confirms the impression that he simply missed the content that is at issue today.

FN2. This court has omitted language relating to life insurance coverage for the parties' children, a subject not at issue in this case..  FN2. This court has omitted language relating to life insurance coverage for the parties' children, a subject not at issue in this case.

FN3. Note Practice Book § 10–50, which provides that “[n]o facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus ․ duress ․ must be specially pleaded ․” (emphasis added)..  FN3. Note Practice Book § 10–50, which provides that “[n]o facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus ․ duress ․ must be specially pleaded ․” (emphasis added).

FN4. Thus captioned, in 1911..  FN4. Thus captioned, in 1911.

Boland, John D., J.