Opinion
HHDFA166071507S
06-25-2018
Karen A. KEOUGH v. Richard D. KEOUGH
UNPUBLISHED OPINION
OPINION
Leslie I. Olear, J.
Before the court is plaintiff’s motion to enforce a settlement agreement entered on the record on January 25, 2018. The court conducted a hearing on the motion on April 20, 2018 and May 1, 2018. Both parties were represented by counsel who vigorously represented their client’s interests.
I
PROCEDURAL HISTORY AND PRELIMINARY FINDINGS OF FACTS
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the factfinder to reject or accept certain evidence ..." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. at 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 763 A.2d 199 (2001).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible ... It is the trier’s exclusive province to weigh the conflicting evidence and determine the credibility of witnesses ... The trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what- at all, none, or some- of a witness’ testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
The trial court’s function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
Thus, in reaching its conclusions, the court has fairly and impartially considered all of the evidence received at the hearing, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence, reviewed all exhibits, relevant statutes, and case law, and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical.
Unless otherwise specified, all facts are found by a fair preponderance of the evidence.
The plaintiff commenced the dissolution action by complaint filed on September 26, 2016, with a return date of October 2016. According to court records, the case was set for an uncontested divorce on December 8, 2016. That did not occur and the matter has been the subject of many pendente lite filings and proceedings.
The court cannot help but note that the case was set to proceed under the provisions of General Statutes § 46b-67(b), which allows the parties to waive the ninety-day waiting period. As of May 1, 2018, the case had been pending for five hundred and seventy-four days.
The parties were married on June 13, 2009. No children have been born during the marriage.
The parties at 4:10 p.m. on Friday afternoon January 25, 2018, as a write-in matter, appeared before the court for the purpose of memorializing the agreement of the parties to the general terms of the divorce; the parties had been in the midst of a deposition of the plaintiff at the office of the defendant’s counsel prior to calling the court and asking to appear to enter the settlement on the record. In court, defendant’s counsel set forth the "general terms of the agreement on the record."
The time is noted from the For the Record program (FTR), Courtroom B-1, January 25, 2018.
Transcript of January 25, 2018, p. 2, lines 20 and 21.
The general terms are summarized in the transcript on pages 2 and 3. Of particular note are the following terms: (i) "neither party will pay any monies to the other"; (ii) the plaintiff would quitclaim her interest in the marital home to the defendant; (iii) the defendant would within sixty days refinance the mortgage on the marital home to have the plaintiff’s name removed therefrom; (iv) the parties would file a separate tax return for 2017 and the defendant would claim all of the household deductions for that tax year; (v) the parties would keep their own assets and be responsible for their own debts as during the marriage the parties kept their assets separate except for the house and a joint checking account with no monies or a miniscule amount of monies in it; and (vi) there would be some untangling of insurance policies and insurance coverage.
Transcript of January 25, 2018, p. 2, line 27 and p. 3 lines 1-17.
Plaintiff’s counsel agreed defendant’s counsel’s recitation accurately reflected the agreement of the parties.
Both counsel indicated a written document would be prepared and they would appear before the court the next day to finalize the matter.
Defendant’s counsel indicated that putting the terms on the record was a "step towards an enforceable agreement" and further stated "that us being here this afternoon isn’t just speaking for the sake of speaking." Plaintiff’s counsel then indicated both counsel had discussed the fact that the terms of the settlement agreement would be subject to an enforcement hearing in the event the divorce was not finalized the next day.
Transcript of January 25, 2018, p.5, lines 2-3 and 5-7.
The same night, or the next day, the defendant advised plaintiff’s counsel that he was not willing to sign a settlement agreement "along the lines of that [which] was discussed yesterday." The defendant then acknowledged the fact that "this is the second time a situation like this has arisen ..."
Exhibit 2, p. 1.
Exhibit 2, p. 1.
As the plaintiff claims the defendant has twice elected not to proceed to judgment on agreed upon terms, the plaintiff filed the instant motion to enforce the settlement.
II
APPLICABLE LAW AND ADDITIONAL FINDINGS OF FACT
The seminal case setting forth the standards to enforce a settlement agreement is Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993), wherein the Supreme Court held the "trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous." Id., 811. Summary enforcement of a settlement agreement is "not only essential to the efficient use of judicial resources, but also preserves the integrity of settlement as a meaningful way to resolve legal disputes. Id., 812.
When parties contest the existence or the terms of an alleged settlement agreement, the court, in conducting an Audubon hearing, is required to hear evidence and make factual findings in order to resolve the following issues: (i) whether a settlement agreement exists; (ii) if so, whether its terms are undisputed, clear and unambiguous; and (iii) whether the nature of the parties’ dispute allows for summary enforcement. "The narrow evidentiary inquiry of an Audubon hearing is solely to determine whether there is any dispute about the existence, terms and enforceability of a clear and unambiguous agreement, not to resolve such disputed facts if they exist." Westphal v. Heon, Superior Court, judicial district of New Haven, Docket No. CV16-6059378-S, 2017 WL 715726 at *4 (Jan. 11, 2017, Wilson J.) (citing Scappatura v. G & D Acquisitions, Inc., Superior Court, judicial district of Danbury, Docket No. CV-075003116-S (February 11, 2010, Agati, J.) (internal quotations omitted).
Our Appellate Court in Matos v. Ortiz, 166 Conn.App. 775, 803, 144 A.3d 425, explained there are "two limits on a court’s power to resolve factual disputes en route to summarily enforcing a release of claims, namely, that the agreement at issue must: (1) be an agreement to settle the litigation; and (2) clearly and unambiguously set forth all of its material terms."
The court makes the following additional findings in support of the elements described above.
(i) Whether a Settlement Agreement Exists
"A settlement agreement is a contract among the parties ... It is well settled that [w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms ... Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact ... [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law ... The court’s determination as to whether a contract is ambiguous is a question of law ..." (Citation omitted; internal quotation marks omitted.) Amica Mutual Ins. Co. v. Welch Enterprises, Inc., 114 Conn.App. 290, 294, 970 A.2d 730 (2009).
"[T]o have a valid contract, the parties must have a meeting of the minds." Moore v. State, Superior Court, judicial district of Hartford, Docket No. CV-950553888-S (August 31, 2000, Berger, J.). " ‘Meeting of the minds’ is defined as ‘mutual agreement and assent of two parties to contract to substance and terms. It is an agreement reached by the parties to a contract and expressed therein, or as the equivalent of mutual assent or mutual obligation.’ Black’s Law Dictionary (6th Ed. 1990)." Sicaras v. Hartford, 44 Conn.App. 771, 784, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). "Parties must have agreed on terms at the time they entered into the agreement." DAP Financial Management Co. v. Mor-Fam Electric, Inc., 59 Conn.App. 92, 97-98, 755 A.2d 925 (2000).
"It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties ... The parties’ intentions manifested by their acts and words are essential to the court’s determination of whether a contract was entered into and what its terms were ... Whether the parties intended to be bound without signing a formal written document is an inference of fact for the trial court that we will not review unless we find that its conclusion is unreasonable." (Internal quotation marks omitted.) MD Drilling & Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, at 454-55, 889 A.2d 850 (2006). "In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met ... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Internal quotation marks omitted). Id., 456.
The defendant, who is an attorney at a life insurance company, heard the description of the terms of the agreement as recited by his counsel. He was advised as to the nature of an Audubon hearing by his counsel during the canvass by the court on January 25, 2018. On January 25, 2018, when the defendant was asked by the court if the terms were fair and equitable, he responded that he was "completely agreeable" to them. When asked at the hearing on April 20, 2018 if he believed at the time (i.e., on January 25, 2018) the terms were fair and equitable, he replied "the general terms, yes."
Transcript, p. 7, lines 22-23.
FTR, Courtroom B-2, April 20, 2018, 12.27:12.
As aptly stated by the defendant’s counsel, the terms as outlined constituted his [counsel’s] "understanding of the terms of the agreement and the meeting of the minds."
Transcript, p. 3, lines 18-19.
"The test of disputation ... must be applied to the parties at the time they entered into the alleged settlement. To hold otherwise would prevent any motion to enforce a settlement from ever being granted." DAP Financial Management Co. v. Mor-Fam Electric, Inc., 59 Conn.App. 92, 97-98, 755 A.2d 925 (2000).
There was assent by the parties to the terms put on the record on January 25, 2018 and the court finds a meeting of the minds by the parties. The court concludes that the plaintiff did intend the January 25, 2018 agreement to be an agreement to settle the litigation. Similarly, the court concludes the defendant did intend the January 25, 2018 agreement to be an agreement to settle the litigation.
(ii) Whether All Essential Terms Were Included and If the Terms Are Clear and Unambiguous
The defendant in Exhibit 2 and at the Audubon hearing raised several points that he claims are material to an enforceable agreement. The court does not agree.
While protesting the lack of enforceability of the oral agreement, the defendant’s demeanor was hurtful to his position. His testimony was not credible.
The court finds that the points raised by the defendant are not persuasive.
The defendant claims a provision requiring the wife to terminate a life insurance policy on his life is a material term of a dissolution agreement and the failure to include the same renders the agreement unenforceable under the Audubon standards. As found above, the defendant is a lawyer for a life insurance company. He acknowledged at the Audubon hearing that the plaintiff, after the divorce, would no longer have an insurable interest on his life; thereby rendering moot the issue of her retaining a policy on his life. The court finds the provision with respect to life insurance is not material.
The defendant asserts that a provision prohibiting one party from disparaging the other is a material provision omitted from the oral agreement. This is not convincing, as the defendant testified at the Audubon hearing that he did not think it was necessary to include such a clause as a general term of the settlement. Additionally, in the third full paragraph on the third page of Exhibit 2, the defendant acknowledged "I am not looking for an anti-disparagement clause as part of the agreement ..." This is a red herring.
The failure of the oral agreement to include a tax deficiency clause to assign responsibility for potential, and speculative, tax deficiencies is raised by the defendant in support of his claim that the agreement lacks an essential term and therefore lacks such definition as to make it enforceable. In the event the plaintiff wife is determined to owe taxes due to her failure to disclose all of her income or her falsely claiming or inflating deductions she has taken, the defendant attorney has his remedies at law and need not rely on the terms of a dissolution agreement to afford him redress. The court finds a provision to address a speculative tax deficiency is not an essential term for a divorce settlement agreement.
The general terms of the oral agreement recited by defendant’s counsel included a statement that there needed to be some "untangling" of insurance policies and he did not anticipate any problems in connection therewith. In addition, it was noted that a joint checking account remained in existence. These are topics which may require future discussion- or perhaps even negotiation. Further, the defendant argues the fact the parties agreed on January 25, 2018 that a dissolution agreement would be finalized and signed the next day renders the oral agreement unenforceable.
Transcript, page 3, lines 25-26.
Our Appellate Court in Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn.App. 234, 907 A.2d 1274 (2006), addressed an analogous argument to the defendant’s claim that the terms put on the record on January 25, 2018 is not a settlement agreement because the terms suggested the parties’ execution of additional documents. In addition, in Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, supra, 240, the Appellate Court addressed whether a settlement agreement "could not have become a binding agreement because the parties made further changes to it after that date." The Appellate Court held "[t]he fact that parties engage in further negotiations to clarify the essential terms of their mutual undertakings does not establish the time at which their undertakings ripen into an enforceable agreement ... [The Appellate Court has] found [no authority] that assigns so draconian a consequence to a continuing dialogue between parties that have agreed to work together. [Furthermore, the court knows] of no authority that precludes contracting parties from engaging in subsequent negotiations to clarify or to modify the agreement that they had earlier reached ... Under the modern law of contract, if the parties so intend, they may reach a binding agreement even if some of the terms of the agreement are still indefinite ... [General Statutes § ]42a-2-204 expressly recognizes that, if the parties so intend, they may reach a binding agreement [e]ven though one or more terms are left open ..." (Citation omitted; internal quotation marks omitted.) Id., 240-41.
Untangling insurance coverage and closing out a joint checking account having little or no money in it are not material considerations. The court finds untangling such property amounts to loose ends, similar to the termination of the life policy on the defendant’s life, and such loose ends do not preclude the court from finding the settlement agreement of January 25, 2018 as being enforceable. Likewise, the fact the parties’ agreement to enter into a dissolution agreement the next day on the general terms recited on the record does not preclude the enforcement of the January 25, 2018 oral agreement.
The court finds the defendant is grabbing at illusory straws to find issues to raise to defend his decision to walk away from the terms of the oral agreement of January 25, 2018. After, once again, reaching an agreement where no party would make any payment to the other, the defendant simply changed his mind and decided to renege.
The court finds the essential terms of a divorce settlement agreement were included in the terms outlined on January 25, 2018 and such terms are clear and unambiguous.
(iii) Whether the Nature of the Parties’ Dispute Allows for Summary Enforcement
The issue is whether the court could enter a judgment dissolving the parties’ marriage at the time it grants the plaintiff’s motion to enforce the settlement agreement.
As a threshold matter, the court finds a due process concern if the court were to entertain entering a judgment dissolving the parties’ marriage based upon the January 25, 2018 agreement. The record is unclear whether the parties clearly and unambiguously were provided with notice on January 25, 2018, when canvassed by the court about the agreement, that if either party asked the court to enforce that agreement at an Audubon hearing, the court would then be entering a judgment of marital dissolution solely upon the terms of that agreement. Accordingly, the court declines to summarily enforce the settlement agreement and enter a judgment of dissolution.
The court, while declining to summarily enforce the agreement and enter a judgment of dissolution, nonetheless finds the parties orally agreed to settle the pending dissolution matter on the terms memorialized before the court on January 25, 2018. The settlement agreement contains all essential and material terms and such terms are clear and unambiguous; the agreement is enforceable.
III
PLAINTIFF’S REQUEST FOR A FINDING OF CONTEMPT AND REQUEST FOR ATTORNEYS FEES
The plaintiff in the motion to enforce settlement requests the defendant to be held in contempt due to his actions and refusal. The court does not find such failure and refusal to be a violation of what was, at the relevant time, a clear and unambiguous court order. The request for a finding of contempt is denied.
The plaintiff also seeks attorneys fees to reimburse her for costs and fees incurred in pursuance of the enforcement of the January 25, 2018 agreement. The plaintiff characterizes her claim for attorneys fees as "equitable costs" however, the claim is essentially for sanctions in the form of an award of attorneys fees in connection with the proceedings following the date on which the settlement payment was to have been concluded. The court recognizes that the Supreme Court in Audubon affirmed the trial court’s denial of an award of attorneys fees in an action to enforce a settlement agreement. The court denies the plaintiff’s request.
SO ORDERED.