Grabowski v. Grabowski

• Decision Date: 13 November 1980
• Docket Number: No. 79-447,79-447
• Citation: 422 A.2d 1040,120 N.H. 745
• Parties: Dorrine M. GRABOWSKI v. Daniel J. GRABOWSKI.
• Court: New Hampshire Supreme Court

Page 1040

422 A.2d 1040

120 N.H. 745

Dorrine M. GRABOWSKI v. Daniel J. GRABOWSKI.

No. 79-447.

Supreme Court of New Hampshire.

Nov. 13, 1980.

Concemi & Wight, Lawrence, Mass. (Stephen W. Wight, Lawrence, Mass., orally), for Dorrine M. Grabowski.

Edward W. Richards, Nashua, by brief and orally, for Daniel J. Grabowski.

KING, Justice.

The questions raised in this appeal are whether the superior court has authority to reform property settlements in marital cases on the basis of mutual mistake and whether the evidence supported such a decree in this case. We answer both questions affirmatively.

The parties were divorced in 1974. Both parties signed "Permanent Stipulations" which were incorporated as part of the decree. Paragraph 4 of the stipulation reads as follows:

"4. That the equity of each party in the real estate located at 8 Loren Road, Salem, New Hampshire, shall be determined forthwith, the Libelee (defendant) to convey his interest to the Libelant, and the Libelant to give a mortgage and note to the Libelee. The Libelee shall receive said equity upon the sale of said read estate or in the event that the Libelant remarries." (Emphasis added.)

Despite this provision, the parties never exchanged the note and mortgage for the defendant's interest in the real estate. The plaintiff continued to reside in the house with the parties' two minor children until her remarriage in April of 1979.

After her remarriage the plaintiff contracted to sell the real estate and requested the defendant to execute a joint deed to the buyer. At that time, the plaintiff indicated that under the terms of paragraph 4, the defendant would receive approximately $5,000, which was one-half of the parties' equity in 1974, while the plaintiff would retain approximately $17,000. The defendant responded that the stipulation did not reflect the parties' agreement, and the defendant demanded one-half the net proceeds from the sale of the real property. Because the parties could not agree to a mutually acceptable distribution of the proceeds, they placed the fund in escrow pending the outcome of this litigation.

The plaintiff filed a petition for clarification and, shortly thereafter, the defendant filed a petition for declaratory judgment which was treated as an answer to the plaintiff's petition. After a hearing, the Trial Court (Randall, J.) found that the parties intended to divide equally the net proceeds from the sale of the real estate and that paragraph 4 of the stipulation should not be enforced due to the parties' mutual mistake in putting their agreement in writing.

The first issue before us is whether courts have the authority to grant reformation of property settlements for mutual mistake. Reformation based on mutual mistake must be distinguished from modification based on changed circumstances. This court has consistently refused to allow modification of property settlements due to a change in circumstances. See Twardosky v. Twardosky, 113 N.H. 438, 439, 309 A.2d 217, 217 (1973); Lawton v. Lawton, 113 N.H. 429, 431, 309 A.2d 150, 151 (1973); Mamalis v. Bornovas, 112 N.H. 423, 429, 297 A.2d 660, 663 (1972); Douglas v. Douglas, 109 N.H. 41, 43, 242 A.2d 78, 80 (1968). This rule does not, however, deprive courts of their common-law power to correct their decrees under proper circumstances. See Erdman v. Erdman, 115 N.H. 380, 381, 341 A.2d 271, 272 (1975). Thus we have ruled that a decree relating to a property settlement can be modified upon a showing that the parties entered into the stipulation due to fraud, duress, undue influence, deceit, or misrepresentation. See Durkin v. Durkin, 119 N.H. 41, 42, 397 A.2d 304, 304 (1979).

It is well established that courts may grant reformation in proper cases where the instrument fails to express the intentions which the parties had in making the contract. E. g., Erin Food Servs., Inc. v. 688 Props., 119 N.H. 232, 236-37, 401 A.2d 201, 204 (1979); Gagnon v. Pronovost, 97 N.H. 58, 60, 80 A.2d 381, 383 (1951); Tilton v. Tilton, 9 N.H. 385, 392 (1838). We see no reason to treat marital decrees incorporating mistakes in property settlements differently in this regard.

The plaintiff argues that the court's determination that the parties were mutually mistaken when they signed the "Permanent Stipulations" lacked adequate support in the record. Courts may grant reformation only when the evidence is clear and convincing that the written instrument does not express the true agreement of the parties. See, e. g., Erin Food Servs., Inc. v. 688 Props., supra 119 N.H. at 237, 401 A.2d at 204; Gagnon v. Pronovost, supra 97 N.H. at 60, 80 A.2d at 383; J. Calimari & J. Perillo, The Law of Contracts § 9-31 at 312 (2d ed. 1977). Although the plain meaning rule bars consideration of parol evidence to vary or contradict the meaning of a writing, parol evidence may establish that, due to a mutual mistake, the writing does not reflect the agreement of the parties. Ekco Enterprises, Inc. v. Remi Fortin Constr., Inc., 118 N.H. 37, 41-42, 382 A.2d 368, 371 (1978); Gagnon v. Pronovost, supra 97 N.H. at 60, 80 A.2d at 383. Furthermore, the mere fact that the evidence is conflicting and solution of the...