Perricone v. Perricone

• Decision Date: 23 June 2009
• Docket Number: No. 17683.,17683.
• Citation: 292 Conn. 187,972 A.2d 666
• Court: Connecticut Supreme Court
• Parties: Nicholas PERRICONE v. Madeleine PERRICONE.

972 A.2d 666

292 Conn. 187

Nicholas PERRICONE v. Madeleine PERRICONE.

No. 17683.

Supreme Court of Connecticut.

Argued January 15, 2009.

Decided June 23, 2009.

Anne C. Dranginis and Proloy K. Das, Hartford, with whom, on the brief, was Shannon C. Kief, for the appellant (defendant).

Daniel J. Krisch, with whom were Wesley W. Horton, Hartford, Jean L. Welty, New Haven and, on the brief, Kimberly A. Knox, Hartford, for the appellee (plaintiff).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

ROGERS, C.J.

This appeal arises from a postdissolution proceeding to enforce a confidentiality agreement between the defendant, Madeleine Perricone, and the plaintiff, Nicholas Perricone. The defendant appeals¹ from the order of the trial court enforcing the confidentiality agreement and restraining her from disseminating any information pertaining to her divorce from the plaintiff or any derogatory or defamatory information about the parties. The defendant claims that: (1) the parties' separation agreement was fully integrated and, therefore, it nullified the confidentiality agreement; (2) even if the confidentiality agreement was not nullified, the trial court's order constitutes an unconstitutional prior restraint on her freedom of speech in violation of the first amendment to the United States constitution;² (3) even if the order does not violate the first amendment, it violates article first, §§ 4 and 5, of the constitution of Connecticut;³ (4) the confidentiality agreement is void as violating public policy; and (5) the confidentiality agreement is void for indefiniteness. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff brought the underlying action to dissolve his marriage to the defendant in September, 2003. In November, 2003, the parties entered into a confidentiality agreement pertaining to the production of discovery material and dissemination "of any information related to this litigation or ... obtained during pretrial discovery...." The confidentiality agreement provided that both parties "fully understand that the plaintiff and his business interests may be severely harmed by the public dissemination of defamatory or disparaging information related to the parties. Accordingly, neither [of] the parties ... shall disseminate or cause to be disseminated to the public and the press any such disparaging or defamatory information." The confidentiality agreement further provided that "[t]he terms of this [a]greement shall survive the entry of judgment in the dissolution of marriage action or the settlement or withdrawal of the dissolution action." The trial court, Kenefick, J., approved the confidentiality agreement and made it an order of the court.

When the parties' marriage was dissolved in September, 2004, the judgment of dissolution incorporated the parties' written separation agreement, which provided that "it is the intention and desire of the parties that there be a complete, final and effective settlement of their respective rights and holdings, and that provision be made for the support of the [defendant] and minor children, custody and visitation of the minor children, as well as relinquishment of all rights, interest and claims, which one party might have upon the property of the other...." It further provided that "[t]he [plaintiff] and [the defendant] have incorporated in this [a]greement their entire understanding and no oral statement or prior written matter extrinsic to this [a]greement shall have any force or effect.... This [a]greement supersedes any and all prior agreements between the [plaintiff] and [the defendant]."⁴

On December 1, 2005, the plaintiff filed a motion for a restraining order alleging that he had received information that the defendant was planning to appear on a nationally broadcast television program to discuss the plaintiff, their marriage and a pending custody matter. The plaintiff sought an order prohibiting the defendant from disseminating any information about the plaintiff or the dissolution proceeding to any person. The plaintiff also requested an ex parte restraining order pending a hearing on the motion. The trial court, Dewey, J., granted the ex parte restraining order and ordered a hearing the following day. That hearing was postponed due to unforeseen circumstances and the trial court, Frazzini, J., ultimately conducted a hearing on December 5 and December 7, 2005.

Thereafter, the trial court issued its memorandum of decision in which it concluded that the separation agreement did not supersede and nullify the confidentiality agreement because the separation agreement and the confidentiality agreement "covered two distinct areas of the parties' rights and interests." The court stated that "[n]othing in the separation agreement shows any intent on the part of the parties to address the subjects governed by the confidentiality agreement." The court also concluded that, even if the separation agreement nullified the confidentiality agreement, it could not nullify the court order embodying the confidentiality agreement. Rather, that order could be nullified only by another court order. The court rejected the defendant's argument that its enforcement of the confidentiality agreement would violate her first amendment right to free speech because she had cited no authority for the proposition that "parties may not waive their constitutional rights and agree to impose on themselves certain restrictions of those rights or that a court may not enter an order adopting those restrictions." Accordingly, the court ordered the defendant to cease and desist from "disseminating to the media or to any person, other than to her counsel in this litigation or to others duly authorized by the [c]onfidentiality [a]greement, the protective order, or further court order (i) any information pertaining to the dissolution action between the parties or to post-judgment proceedings between them, (ii) any `discovery material' or `confidential discovery material,' as those terms are defined in the confidentiality agreement and protective order of November 3, 2003, or (iii) any derogatory or defamatory information about the parties...." The court further ordered the defendant to cease and desist "[f]rom appearing on radio or television for such purposes." This appeal followed.

I

We first address the defendant's claim that the trial court improperly determined that the separation agreement did not supersede and nullify the confidentiality agreement. The defendant contends that because the separation agreement was a completely integrated agreement, it nullified all prior agreements between the parties related to the dissolution action. She further contends that the confidentiality agreement was not enforceable as a collateral agreement outside the scope of the separation agreement because the separation agreement addressed the same subject matter as the confidentiality agreement.⁵ The plaintiff concedes that the separation agreement is an integrated agreement, but contends that the confidentiality agreement was not affected by the separation agreement because the subject matter of the confidentiality agreement was separate and distinct from the subject matter of the separation agreement, and the confidentiality agreement did not contradict the separation agreement or vary its terms. We agree with the plaintiff.

The parties agree as to the legal standard to be applied in determining whether a collateral agreement is outside the scope of an integrated agreement, but disagree as to whether the confidentiality agreement met that standard. Specifically, they disagree as to whether the confidentiality agreement addressed the same subject matter as the separation agreement. This is a question of fact involving the intent of the parties that is subject to reversal only if the trial court's finding was clearly erroneous. See Levine v. Massey, 232 Conn. 272, 290, 654 A.2d 737 (1995).

"[W]hen the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing." (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 502, 746 A.2d 1277 (2000). Under this rule, "the unambiguous terms of a written contract containing a merger clause may not be varied or contradicted by extrinsic evidence." Id., at 503, 746 A.2d 1277.

There are, however, several exceptions to this rule. Specifically, evidence extrinsic to an integrated contract may be introduced: "(1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud.... These recognized exceptions are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract's terms, or (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud." (Internal quotation marks omitted.) Palozie v. Palozie, 283 Conn. 538, 548 n. 8, 927 A.2d 903 (2007); see also Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. at 503 n. 14, 746 A.2d 1277 (proof of integrated agreement does not bar proof of collateral oral agreement that does not vary terms of writing); 2 Restatement (Second), Contracts § 213(2), p. 129 (1981) ("[a] binding completely integrated agreement discharges prior agreements to the extent that...