Opinion
FA176031321S
10-10-2017
Christopher Clarke v. Kimberly Clarke
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S PENDENTE LITE MOTION FOR SUMMARY ENFORCMENT OF PREMARITAL AGREEMENT (#134.00) AND RELATED OBJECTIONS FILED BY EACH PARTY (#145.00/#160.00)
Thomas D. Colin, Judge.
Introduction
The parties and their counsel appeared in court on August 28 and September 12, 2017 for a hearing on the following pendente lite motions and objections: (1) plaintiff's motion for summary enforcement (#134.00) dated July 18, 2017; (2) defendant's amended objection to plaintiff's motion for summary enforcement (#160.00) dated August 28, 2017; and (3) plaintiff's objection (#145.00) to defendant's motions for pendente lite awards of alimony, counsel fees and expert fees. Neither party presented any witnesses. One document was submitted into evidence: the restatement of premarital agreement dated October 21, 2011 (plaintiff's exhibit 1). The court has considered the evidence presented, arguments made and relevant law.
Background
This dissolution action was returnable to this court on March 28, 2017. The plaintiff filed his complaint on March 1, 2017. In that complaint, the plaintiff alleges that the parties were married on February 12, 2010 and that they executed a premarital agreement on February 8, 2010 and a restatement of the premarital agreement on October 21, 2011. The parties have no children of their marriage but they each have children from their prior marriages. The plaintiff seeks enforcement of the premarital agreement and restatement.
The defendant thereafter filed an answer and cross complaint on June 30, 2017. The defendant makes the same allegations as the plaintiff regarding the premarital agreement and restatement and also seeks enforcement of both.
The plaintiff has filed a motion for summary enforcement dated July 18, 2017. In that motion, the plaintiff moves that the parties' restatement of the premarital agreement dated October 21, 2011 be summarily enforced because neither party seeks to avoid its enforcement and that both parties, in their pleadings, consent to its validity and enforceability.
The defendant objects to the motion for summary enforcement and claims that the court does not have the authority to summarily enforce a premarital agreement absent a finding that the terms of the agreement are fair and equitable under the circumstances and clear and unambiguous. The objection further states: " The Defendant is not contesting that the Restatement should be enforced; it is how the Restatement is interpreted and enforced that is at issue along with her inability to maintain the jointly owned marital residence; legal representation and expert fees without access to funds from the Plaintiff."
The defendant has also filed pendente lite motions that seek alimony (#138.00); counsel fees (#139.00) and expert fees (#140.00) for a forensic evaluation of the plaintiff's business interests and net worth. The plaintiff has filed an objection (#145.00) to these three motions. The basis for the plaintiff's objection is his claim that the restatement of the premarital agreement, which both parties seek to enforce, by its terms prohibits awards of pendente lite alimony, counsel fees and expert fees.
Discussion
The restatement of the premarital agreement dated October 21, 2011, at paragraph (i) on page 17, provides as follows: " Except as provided otherwise in this Section 9, neither CHRIS nor KIMBERLY shall have the right to receive support, maintenance or alimony (including temporary or post-decree) from the other . . ." As previously noted, both parties seek enforcement of this agreement. The defendant cannot, on the one hand, seek enforcement of a contract that prohibits temporary alimony yet, on the other hand, seek an award of temporary alimony; such a position defies common sense. By seeking enforcement of a premarital agreement (that the plaintiff also seeks to have enforced) that expressly prohibits temporary alimony, the defendant has waived her right to seek such relief. It is significant to emphasize again that, in this case, enforcement of the premarital agreement/restatement is not an issue in dispute; both parties are seeking its enforcement. The plaintiff's objection to the defendant's motion for temporary alimony is sustained; the motion should be denied.
The court reaches a different conclusion on the plaintiff's objection to the motions for temporary counsel and expert fees. Paragraph (1) on page 18 of the restatement states: " Each party shall be responsible for his or her attorneys fees and expenses in connection with a Dissolution of Marriage, the interpretation or enforcement of this Restatement, and any post-decree modification of any court order for Dissolution of Marriage." This provision does not by its terms prohibit an award of temporary counsel and expert fees. It does, however, provide that each party shall be responsible for his or her fees. Thus, in the event that the defendant is successful in obtaining a pendente lite award of counsel and/or expert fees, she will still be ultimately responsible for those fees and the full amount of any fees awarded will necessarily have to be credited against any other financial payments to which the defendant is entitled under the terms of the premarital agreement/restatement. The restatement seems to provide the defendant with a substantial monetary award. The plaintiff's objections to the motions for temporary counsel and expert fees are overruled.
As previously stated, each party seeks enforcement of the premarital agreement/restatement. Thus, there appears to be no good reason to postpone enforcement until a later date. The obvious intent of the parties in entering into the premarital agreement and restatement was to avoid a protracted and costly lawsuit in the event that either of them pursued a divorce action. The Connecticut Premarital Agreement Act supports the immediate and summary enforcement, in this case, of the parties' premarital agreement/restatement.
Specifically, section 46b-36e of the general statutes provides that a premarital agreement becomes effective upon marriage unless otherwise provided in the agreement. Section 46b-36f provides that an amendment to the premarital agreement shall also be enforceable without consideration. Section 46b-36g provides that a premarital agreement and amendment shall not enforceable if the party against whom enforcement is sought establishes one or more of a number of defenses. Significantly, in this case neither party will be seeking to establish any one of the statutory defenses because they each seek enforcement. Thus, the agreement is effective and enforceable until proven otherwise.
Section 1-1(a) of the general statutes sets forth a basic principle of statutory construction. It provides, in relevant part, as follows: " In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . ." Sec. 1-2z of the general statues sets forth the plain meaning rule: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." These principles of statutory construction support the summary enforcement of the premarital agreement in this case.
The premarital agreement is now " effective." A common meaning of " effective" is " actually in operation or in force." See dictionary.com. Put another way, " effective" means " being in effect" or " operative." See merriam-webster.com. Thus, the premarital agreement/restatement in this case is now in effect and operative. The Connecticut legislature has allocated the burden of proving that the agreement is unenforceable on the party seeking to attack a premarital agreement. In this case, neither party is making any attack on the enforceability of the premarital agreement/restatement. The arguments made by the defendant in opposition to the motion for summary enforcement are not persuasive because any disputes about the implementation and effectuation of the terms of the restatement can still be addressed by the court, if necessary, on a future date.
As a result, the plaintiff's motion for summary enforcement is granted and the defendant's objection is overruled.
ORDERS
1. The plaintiff's motion for summary enforcement (#134.00) is granted except as otherwise provided by the Connecticut General Statutes. The defendant's amended objection (#160.00) is overruled. It is worth noting, however, that this ruling does not necessarily mean that the parties are in complete agreement on the precise implementation of the terms of the premarital agreement/restatement. It is entirely possible that the parties may have different views on how the restatement will be implemented that may require judicial intervention. This ruling does mean, however, that the premarital agreement/restatement is to be enforced according to its terms, subject to the court's approval of the agreement at the time of the entry of final judgment.
2. The plaintiff's objection (#145.00) is overruled in part and sustained in part as follows. The objection to the defendant's motion for temporary alimony is sustained and that motion (#138.00) is denied. The objections to the defendant's motions for counsel fees (#139.00) and expert fees (#140.00) are overruled; any award of counsel and/or expert fees shall be credited in favor of the plaintiff against any funds that are to be paid to the defendant under the terms of the restatement.
3. Counsel for the parties shall forthwith contact case flow to schedule a final trial date to resolve the implementation of the terms of the premarital agreement and restatement. All discovery and expert witness disclosures shall be concluded at least 60 days prior to the trial date.