Murray v. Crawford

• Decision Date: 12 February 2010
• Docket Number: Civil Action No. 08-cv-02045-KMT-KLM.
• Parties: Sandra MURRAY, an individual, Plaintiff, v. Donald B. CRAWFORD, Jr., an individual, Defendant.
• Court: U.S. District Court — District of Colorado

689 F.Supp.2d 1289

Sandra MURRAY, an individual, Plaintiff, v. Donald B. CRAWFORD, Jr., an individual, Defendant.

Civil Action No. 08-cv-02045-KMT-KLM.

United States District Court, D. Colorado.

February 12, 2010.

Barry Alan Schwartz, Kamlet Reichert, LLP, Denver, CO, for Plaintiff.

Peter Joseph Moyson, Hall & Evans, LLC, Denver, CO, for Defendant.

ORDER

KATHLEEN M. TAFOYA, United States Magistrate Judge.

This matter is before the court on Defendant Donald B. Crawford, Jr.'s Motion for Partial Summary Judgment" (hereinafter "Motion") Doc. No. 36, filed August 31, 2009. The Plaintiff, Sandra Murray, filed her "Response in Opposition to Motion for Partial Summary Judgment" Doc. No. 40 (hereinafter "Response") on September 18, 2009 and the Defendant filed his "Reply Brief in Support of the Motion for Partial Summary Judgment" Doc. No. 43 (hereinafter "Reply") on October 15, 2009. The matter is ripe for review and ruling.

Defendant seeks dismissal of the plaintiff's Second Cause of Action, Breach of the Termination Agreement (Compl., Doc. No. 1) on the bases that: 1) the oral agreement between the parties in July 2007 was an unlawful modification of the Cohabitation Agreement; 2) the Termination Agreement was not executed by all parties and therefore has no effect; 3) the offer from the defendant contained in the Termination Agreement was rejected by a counteroffer from the plaintiff; 4) the plaintiff did not accept the offer represented by the Termination Agreement in a timely fashion and the offer therefore expired, and; 5) the plaintiff did not comply with the requirements for acceptance of the Termination Agreement because no Certificate of Counsel was provided.

BACKGROUND

The following facts are taken from Plaintiff's Complaint and the parties' submissions with respect to the pending Motion.

After being together as a couple since 1999, the defendant and the plaintiff, in 2002, changed their relationship by agreeing to terminate the plaintiff's employment outside the home and agreeing that the defendant would become financially responsible for her and her young daughter. (Compl., Exh. A, Cohabitation Agreement at ¶ A.) They later entered into a written Cohabitation Agreement providing, in part, that Defendant would pay Plaintiff monthly a certain percentage of his income if their relationship ended before 2010. (Id. at 17(b).)

On January 30, 2007, Defendant sent Plaintiff written notice he was terminating their relationship under the terms of the Cohabitation Agreement. (Compl.) From February 11, 2007 until approximately August 2007, the parties entered into communications about the possibility of a reconciliation, adjustments to an annuity to which Defendant was contributing for Plaintiff's benefit, the specific manner of execution of paragraph 17(b) of the Cohabitation Agreement, and various issues related to separating the former joint household.

Paragraph 17 provides, in part

a) Commencing the month this agreement is executed, Donald shall contribute the sum of $2,000 per month, into an annuity (or other such investments as agreed to by Sandra and Donald), that will be established for the benefit of Sandra. Said investment, will be the sole and separate property of Sandra. Donald will be obligated to pay this sum, into the annuity or investment, each and every month thereafter and for so long as this agreement is in effect and not terminated by either party. Donald's obligation to make said monetary payments shall cease (1) at such time as Donald becomes involuntarily unemployed, or (2) upon leaving his employment for "good cause." If and when Donald is reemployed, Donald shall be obligated to pay 4% of his gross income into said investment/annuity on a monthly basis until termination of the agreement.

b) In addition, should either party terminate this agreement prior to 2010, Donald shall be obligated to pay Sandra 22.5% of the gross salary and commission that he is earning at the time of payment, for a period of 30(thirty) consecutive months. Should this agreement remain in full force and effect through 2010, but terminate prior to 2015, Donald shall be obligated to pay Sandra 28% of his gross salary and commission that he is earning at the time of payment, for a period of 30 (thirty) consecutive months. Should this agreement be terminated after 2015, Donald shall be obligated to pay Sandra 36% of his gross salary and commission that he is earning at the time of payment, for a period of 30 (thirty) consecutive months.

(Mot., Exh. A.)

It is undisputed that close in time to the January 30, 2007 notice from the defendant terminating his relationship with Plaintiff, the defendant became an owner of certain radio stations and began receiving compensation as an owner, rather than deriving his income from salary and commissions. This change began a dispute about how to effectuate paragraph 17(b).

Between February and July 2007, Defendant performed in part pursuant to the Cohabitation Agreement and assured the plaintiff, "know that you will surely receive your monies, and then some, fair and square; perhaps sooner than later, if possible." (Mot., Exh. B, email to plaintiff from defendant, dated February 11, 2007, at 3.) The defendant also stated, "the agreement payments started last month." (Id.) The parties also discussed the annuity referenced in paragraph 17(a) and monies which Defendant still owed under that provision. (Mot., Exh. D, email from the defendant to the plaintiff dated February 26, 2007, at 4.) The plaintiff and defendant negotiated over whether or not the plaintiff would assume payments on an automobile, who would pay for the automobile insurance, whether a life insurance policy would remain intact, responsibility for various other household bills and the agreement of the defendant to allow plaintiff to continue her health insurance with defendant paying the premiums. (Mot., Exh. C, email from plaintiff to defendant dated February 22, 2007.) While agreeing on many of their separation responsibilities, the parties continued to negotiate over the meaning of paragraph 17(b) of the Cohabitation Agreement and what monies would be payable to the plaintiff from the defendant given his new compensation arrangement. (Mot., Exh. D at 3-4.) At one point the defendant proposed to pay plaintiff the sum of $4,302.00 per month under the terms of the agreement, based upon his calculation of his present likely income of $234,000 per year (Id. at 5) and acknowledged that the parties were considering items and amounts which were "not required under the agreement." (Id.) The plaintiff did not agree to the monthly payment proposed by the defendant, objecting that the amount was not what the parties contemplated when the agreement was originally signed. (Mot., Exh. E, letter to defendant from plaintiff dated March 9, 2007, at 2.) The parties continued to dispute the monthly amount owed by the defendant to plaintiff during April and May 2007. (Mot., Exh. F, email string with dates of April 25-30, 2007.)

The negotiations became increasingly hostile between the parties regarding the payments due under paragraph 17(b) of the Cohabitation Agreement. In an email from plaintiff to defendant dated May 31, 2007, plaintiff stated

your income will be based completely on imputed income, meaning what the business have (sic) made in the past, not your supposed current salary. That is per California & Colorado law—this I have already ascertained with several different attorneys. There is plenty of case law to substantiate this; right now it seems obvious that you are acting in a fraudulent manner by coming up with a salary that is a quarter of what you used to make; not to mention the timing of service. Now you own several stations that will produce a lot more income than what you have recently stated."

(Mot, Exh. G, email with string attached dated May 31, 2007 from Plaintiff to Defendant, at 1.) The defendant responded, in part, "Your attorneys have my number, the ones who will be the only veritable winners in the end, and that is a long ways away." (Id. at 6.)

Finally, in July 2007, the parties appeared to come to an agreement concerning the remaining issues between them and the defendant's obligations pursuant to the Cohabitation Agreement. In an email dated July 30, 2007 to the plaintiff, the defendant referenced a twenty minute telephone call between the two, and stated,

I will commence the construction of the agreement Wednesday after I return. I would say that should take a week or so, then you and yours can look at it for final agreement. I am reviewing the tax matter to see how much we are talking in terms of you declaring it as income or for me as a write-off. That may stall things since it is more-less money for both of us. We will see. Compromise may be the only way to go on this one as well, such as half-way, whatever that is."

(Mot., Exh. H.) Further, the defendant agreed to maintain health insurance for the plaintiff for "another month." (Id.) On August 31, 2007, the defendant sent another email concerning the parties oral agreement. The plaintiff alleges the email stated

The good news is that I have now secured the $278,000 that we have agreed to that would be my paymentgift to you to permanently resolve our concern. It is ready to be transferred to you once you sign the release form. Susan Larsen is working on that and should have it for your review next Friday."

Resp., Exh. A, Affidavit of Sandra Murray at ¶ 13.¹

On September 25, 2007, the defendant sent an email and the document at issue in the Second Claim for Relief, the Termination Agreement², to the plaintiff requesting, "if there are no changes, then print two copies, mail to me both originals with the blanks filled in; your signature and date; your attorney's signature and date." The defendant then promised that after he sent the signed and notarized Termination Agreement to his attorney, the attorney would send a fully executed...