Fiddelman v. Redmon
| Decision Date | 24 June 1993 |
| Docket Number | No. 10798,10798 |
| Court | Connecticut Court of Appeals |
| Parties | Donald FIDDELMAN v. Popcorn REDMON. |
Arnold H. Rutkin, with whom, on the brief, was Kathleen A. Hogan, Westport, for the appellant-appellee (plaintiff).
Richard L. Albrecht, Bridgeport, for the appellee-appellant (defendant).
Elizabeth T. Sharpe, Greenwich, for the minor children.
Before DALY, LAVERY and SCHALLER, JJ.
In this dissolution of marriage action, the plaintiff appeals and the defendant cross appeals from various orders of the trial court. The plaintiff claims that the trial court improperly entered orders regarding (1) the disposition of the marital home and (2) an allegedly indefinite custody arrangement. 1 The defendant claims that the trial court improperly denied her motion to open and set aside the judgment as it pertains to custody and visitation. We affirm the judgment of the trial court. 2
The parties to this appeal were married on July 2, 1984. They have two children, born in 1986 and 1987. In 1989, the plaintiff brought this action for dissolution of the marriage. The case proceeded to trial as a fully contested matter in the spring of 1991. Following a fifteen day trial, the trial court issued its memorandum of decision on June 13, 1991, and rendered judgment accordingly. The plaintiff appealed.
On November 22, 1991, the defendant filed a motion to open and set aside the judgment claiming that a conflict of interest involving a prior attorney-client relationship had tainted the court's judgment. After a hearing, the court denied the defendant's motion. The defendant brought a cross appeal challenging the court's denial of the motion. 3
THE PLAINTIFF'S APPEAL
The plaintiff first contends that the trial court's order regarding the disposition of the marital home did not reflect a valid stipulation between the parties. In the course of trial, the parties entered into a stipulation describing a process by which they would sell their marital home. Pursuant to the stipulation, the parties agreed to list the house for sale immediately at a price of $1.9 million, and "if they both agree, it could be at a price higher than $1,900,000." The stipulation also stated that "the court would maintain continuing jurisdiction to solve any disputes with respect to the listing or selling price." The court accepted the stipulation, and the parties opted not to adduce testimony concerning the value of the property.
In its memorandum of decision, the trial court ordered the parties to list the house for immediate sale with a mutually acceptable listing broker at an initial price of $1.9 million. The order did not, however, include a term allowing the parties to agree on a price exceeding $1.9 million. The judgment further provided that "in the event the property shall be listed for more than ninety days at a specific listing price and there shall be no acceptable offer made, the parties shall endeavor to agree upon a lesser listing price, and in the event the parties cannot so agree, this court shall retain continuing jurisdiction to order a diminished listing price."
"A judgment rendered in accordance with ... a stipulation of the parties is to be regarded and construed as a contract." Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Zivic v. Zivic, 26 Conn.App. 5, 7, 596 A.2d 475 (1991). We review a trial court's construction of such an agreement as an issue of fact subject to the clearly erroneous standard. Barnard v. Barnard, supra; Zivic v. Zivic, supra, 26 Conn.App. at 7-8, 596 A.2d 475. " 'A contract is to be construed as a whole and all relevant provisions will be considered together.' " Barnard v. Barnard, supra, quoting Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976). "In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties." (Internal quotation marks omitted.) Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983).
In this case, the plaintiff maintains that the trial court improperly deviated from the stipulation by omitting a provision allowing for an increased listing price. Although the defendant argues that this matter is moot, she consents "to a correction in the Judgment in this regard." Because the issue is not moot 4 and because the parties consent to a correction in the judgment, we remand this matter to the trial court. Ultimately, the amended order must reflect the terms of the stipulation and allow for a listing price that exceeds $1.9 million.
The plaintiff also challenges the court's order that the parties return to the court every ninety days in the event that they cannot agree on a reduced price. The plaintiff posits that, contrary to the stipulation, the order requires a reduced price every ninety days. We disagree.
The plaintiff ignores the language in the stipulation that grants the "court continuing jurisdiction to solve disputes with respect to the listing or selling price." (Emphasis added.) Under this term, the parties authorized the court further to refine the agreement as it pertained to the setting of a listing or selling price. The order does not, as the plaintiff suggests, require a reduced price every ninety days. Rather, if the parties cannot agree on a reduced price after ninety days, then the court will conduct a hearing on the matter to determine the value of the property for purposes of listing and sale. We do not read the order as requiring a reduced price if, after a hearing on the matter, evidence conclusively establishes a market value of the property at or above the existing price. We conclude that this aspect of the court's order is not clearly erroneous but rather reflects a proper interpretation of the parties' stipulation.
The plaintiff next asserts that the trial court improperly ordered the parties to continue a so called birdnesting arrangement. Under this birdnesting plan, "each party shall have the exclusive use and occupancy of [the marital home] during such period of time that the children are residing with that party." The order expressly stated that the arrangement would last "[u]ntil the sale and closing on the ... property, or until the defendant wife elects to vacate said premises, whichever event shall first occur...."
We note initially that a trial court is accorded wide discretion in domestic relations cases. "In order to conclude that a trial court abused its discretion in a domestic relations case we must find that the court either incorrectly applied the law or could not reasonably conclude as it did." (Internal quotation marks omitted.) Watson v. Watson, 221 Conn. 698, 712, 607 A.2d 383 (1992). A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court's action to determine ultimately whether the court could reasonably conclude as it did. Gallo v. Gallo, 184 Conn. 36, 44-45, 440 A.2d 782 (1981). This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position " 'to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.' " Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982).
In this case, the trial court did not abuse its discretion in ordering the temporary continuation of the bird nesting arrangement. The plaintiff attacks this aspect of the court's order as (1) indefinite in its duration and (2) inconsistent with public policy. Both challenges, however, are unavailing. First, the plaintiff's indefiniteness argument ignores the fact that the sale of the property necessarily will terminate the birdnesting plan. We are satisfied that, by its order, the court has endeavored to play an active role in expediting the disposition of the property. While we cannot conclude that the birdnesting arrangement is certain to expire on any specific day, it is clear that it will be shortlived.
Moreover, the public policy concerns offered by the plaintiff are inapplicable in this case. Particularly, the plaintiff points to the stated policy behind dissolution orders that the state "only permits a divorce to be granted when ... conditions are found to exist, in respect to one or the other of the named parties, which seem to the legislature to make it probable that the interests of society will be better served and that parties will be happier, and so better citizens, separate, than if compelled to remain together." (Emphasis added.) Casale v. Casale, 138 Conn. 490, 492, 86 A.2d 568 (1952). According to the plaintiff, the trial court's order of dissolution cannot be squared with its order requiring the parties temporarily to share the same residence. This argument is specious.
The plaintiff fails to note that under the terms of the order the parties will not be residing in the same residence together. Rather, the order expressly states that each party "shall have exclusive use and occupancy of said premises." This exclusive use and occupancy coincides with the period of time that each party will reside with the children according to the custody orders. The bottom line is that the court has not ordered the parties to live together. We therefore conclude that the temporary birdnesting arrangement is not the product of an abuse of discretion.
THE DEFENDANT'S CROSS APPEAL
Turning to the defendant's cross appeal, we address the issue whether the trial court improperly denied the defendant's motion to open and set aside the judgment. The defendant's cross appeal is predicated on an alleged conflict of interest that purportedly tainted the trial court's custody and visitation orders. The following facts...
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