Opinion
No. FST CV 08 5006821 S
June 5, 2008
MEMORANDUM OF DECISION
The parties to this action may or may not be husband and wife. The plaintiff seeks a prejudgment remedy allowing the attachment of the defendant's residence at 116 Princess Pine Lane, Fairfield. That property is owned by the defendant and occupied by her and the parties' minor child. The plaintiff alleges that he is entitled to a prejudgment remedy to secure his claim to recoup overpayments he allegedly made to the defendant following a 2004 judgment of the Superior Court (Winslow, J.) in a matrimonial action. That judgment dissolved the parties' marriage, declared a prenuptial agreement to be enforceable and ordered the plaintiff to make payments to the defendant by way of alimony and property distributions.
On appeal, the Supreme Court in Friezo v. Friezo, 281 Conn. 166 (2007) found the prenuptial agreement to be enforceable, reversed the judgment and remanded the case for further proceedings consistent with its decision. At the hearing on the plaintiff's application for a prejudgment remedy on May 5, 2008, the parties both testified that the reversal of the Superior Court judgment left the parties in their prior status as legally married spouses. In oral argument, the plaintiff's counsel stated that he believed that the parties' marriage was still legally in effect. Nevertheless, in his post-hearing brief the plaintiff's counsel claims that his client's testimony that the parties' marriage had not yet been dissolved was "erroneous." As noted below, the court finds that the marital status of the parties may well be relevant to the issues presented by the plaintiff's application for a prejudgment remedy. However, that issue must be determined by the remand court and not in these collateral proceedings.
At the May 5, 2008 hearing, the defendant appeared pro se, while the plaintiff was represented by counsel. At the hearing the plaintiff testified and produced evidence including a pre-nuptial agreement signed by the parties and dated November 12, 1998 (Ex. 1, Tab 10), a copy of the memorandum of decision of the Superior Court (Winslow, J.) dated August 27, 2004 (Ex. 1, Tab 6), the decision of the Supreme Court dated February 6, 2007 (Ex. 1, Tab 9), and the plaintiff's evidence of and calculations regarding the payments made by the plaintiff to or for the benefit of the defendant between August 27, 2004 and February 6, 2007 which the plaintiff now considers to be overpayments (Ex. 1, Tabs 1-5). The plaintiff testified briefly in support of his claim, verifying his documentary evidence and explaining his claim. He claims to have paid the defendant $1,286,736.84 and asserts that under the provisions of the prenuptial agreement he was required to pay only $400,000.00 to her. He is seeking a prejudgment remedy in the amount of $886,736.84 to attach the defendant's residence which she has listed for sale.
The plaintiff also called the defendant wife as a witness to verify her receipt of the amounts paid to her by the plaintiff. The plaintiff did not testify or offer proof as to what payments, if any, he had made to the defendant by way of support for their minor child either before or after the decision of the Supreme Court.
Counsel for the plaintiff argued that Article Third of the Prenuptial Agreement limited the amount of any award which could be made to the defendant by way of a property settlement to $400,000. However, the language of Article Third deals exclusively as to the amount to which the defendant would be entitled to if the parties' marriage was terminated by the plaintiff's death. A schedule included in Article Fourth provides that the defendant would be entitled to increasing amounts depending on the number of years which passed between the date of the marriage and the date of the plaintiff's death. The schedule provides for a minimum payment of $150,000 up to a maximum payment of $3 million. The maximum payment was subject to increase based on increases in the consumer price index if the plaintiff died after January 2009.
Article Fifth of the Prenuptial Agreement imposes limitations on the defendant's right to receive a property settlement in the event that the parties' marriage is terminated by annulment, divorce or dissolution. The amount that the defendant would be entitled to receive is set forth in Article Sixth (A). In relevant part that provision states:
The Husband shall pay to the Wife the amount set forth in the table in paragraph (A)(1) of Article FOURTH, above, as adjusted by the percentage increase, if any, in the Consumer Price Index and as limited by paragraph (A)(2), of Article FOURTH, above, and for which "the Period" as shown in such table shall mean the length of time beginning with the date of the marriage of the parties and ending with the date on which the parties no longer live together as husband and wife.
This provision is perplexing and difficult to interpret. It is unclear whether the effect of Article Sixth is to measure the amount to be paid to the defendant by time elapsed from the date of the marriage until the date the parties ceased living together for the purposes of Article Fourth (A)(1) and Article Fourth (A)(2). This seems to be the interpretation urged by the plaintiff. However, this interpretation would eliminate entirely any relevance of the number of years which the plaintiff lived after the date of the marriage. If the drafter of the prenuptial agreement had intended the result urged by the plaintiff, simpler, more-straight forward language could have been employed to that effect.
An alternative reading of Article Sixth (A) would make the determination of a substitute period relevant only for purposes of applying adjustments based upon the Consumer Price Index (under Article Fourth (A)(2) to amounts to which the defendant is entitled based on the provisions of Article Fourth (A)(1). However, this interpretation might require a court enforcing the provisions of the agreement, to determine the plaintiff's life expectancy as of the date of the decree in order to award a property settlement to the defendant in the proper amount.
In addition to the property settlement provided in Article Sixth (A), Article Sixth (B) requires the plaintiff to make a residence having a value of no less than $750,000 available to the defendant until the minor children of the parties reach the age of twenty-one or the earlier death or remarriage of the defendant. Under Article Sixth (C), the plaintiff's obligations included the responsibility of paying taxes, mortgage interest and amortization, and all repair costs for the residence provided to the defendant. The plaintiff presented no evidence that he either provided such a residence to the defendant, or credited the value of such living accommodations against his claim.
Other provisions of the prenuptial agreement cast doubt on the plaintiff's claim. Article Seventh provides, in part, that "all Property acquired or earned solely or principally (as between the parties) by either the Husband or the Wife during the marriage shall be and remain the separate property of the party acquiring or solely or principally earning such Property . . ." Because the decision of the Supreme Court appears to set aside the judgment of the Superior Court in all respects, the plaintiff and the defendant may well remain married. Accordingly the payments made by the plaintiff which he now seeks to recover from the defendant could be considered property "acquired . . . during the marriage" which the plaintiff is barred from claiming under the provisions of Article Seventh.
Article Seventh further provides that "each party, during his or her lifetime, shall retain sole ownership, control and enjoyment of all Property now owned or hereafter acquired or solely or principally earned by him or her, free and clear of any and every claim by the other party . . ." This provision could be construed as barring the plaintiff from seeking to attach the residential real estate which is the subject of the plaintiff's application for a prejudgment remedy.
Prenuptial Agreements are contracts and are subject to the ordinary principles of contract law. McHugh v. McHugh, 181 Conn. 482, 486 (1980). One principle of contract construction requires that ambiguous language be construed against the drafter of the contract. Cantonbury Heights Condominium Ass'n., Inc. v. Local Land Development, LLC, 273 Conn. 724, 735 (2005). The statement of facts set forth in the decision of the Supreme Court in Friezo, supra, makes it clear that the plaintiff in this case must be considered to be the drafter of the prenuptial agreement.
The Supreme Court has held the prenuptial agreement to be enforceable. It is now the task of the remand court to construe the terms of that agreement and apply them in light of all relevant facts and circumstances. By bringing this application for a prejudgment remedy prior to instituting a civil action seeking to recover excess amounts alleged paid to the defendant, the plaintiff is asking the court to make a determination of his rights and obligations under the prenuptial agreement prior to a full hearing before the remand court.
A party seeking a prejudgment remedy must establish probable cause both as to his entitlement to the prejudgment remedy and as to its amount. Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 557-58 (2008). In this case the court is satisfied that the plaintiff has shown probable cause that he will be able to show that he paid the defendant the amounts shown on Exhibit 1, Tabs 1 through 5. The plaintiff has not shown, with any precision, the amount that he will be required to pay the defendant if and when the remand court grants the parties a dissolution of their marriage and enforces the provisions of the prenuptial agreement.
Even if the terms of the prenuptial agreement were clear and unambiguous, it is not clear that the court would be empowered to grant a prejudgment remedy for a claim that has yet to mature. In Cahaly v. Benistar Property Exchange Trust Co., Inc., 268 Conn. 264 (2004), the Supreme Court reversed a decision of the Appellate Court granting a prejudgment remedy to a plaintiff who claimed that he would be entitled to a judgment in Connecticut once he had obtained a judgment against the defendant in Massachusetts. The court pointed out that until the final disposition of the of Massachusetts action the plaintiff could not have a viable cause of action against the defendant in Connecticut. 268 Conn. at 278. The court also observed that prejudgment remedy statutes are in derogation of the common law and, must be strictly construed. 268 Conn. at 270. In this case the plaintiff is seeking a prejudgment remedy based upon a judgment that he anticipates the remand court will issue in his favor. The evidence presented by the plaintiff fails to establish probable cause that the judgment of the remand court will result in an award to the defendant which will not exceed amounts already paid to her. Accordingly, the court finds that the plaintiff has failed to establish his right to the prejudgment remedy he requests.