Walden v. Lattarulo
| Decision Date | 21 March 1969 |
| Docket Number | No. CV,CV |
| Citation | 268 A.2d 250,6 Conn.Cir.Ct. 118 |
| Court | Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division |
| Parties | Nesta E. WALDEN v. Daniel E. LATTARULO. 9-6612-3806. |
William P. Lage, Madison, for appellant (plaintiff).
Norman Sivin, Old Saybrook, for appellee (defendant).
The complaint, which was in two counts, sought to recover weekly support payments claimed to be due since June, 1966, under a contract entered into by the parties on December 31, 1965, when they were husband and wife, and to recover the plaintiff's legal expenses in this action. The court rendered judgment for the defendant on each count. On the first count the court concluded that the separation and property settlement agreement omitted several important items and, therefore, did not adjust and dispose of all the related property interests of the parties; that the agreement was not designed nor entered into for the sole purpose of settling amicably the property affairs of the parties; that the confrontation between the plaintiff and the defendant on December 27, 1965, and the rapid sequence of events between the 27th and the 31st, including the execution of the mentioned agreement, were all part of a plan to facilitate the plaintiff's 'quickie' divorce, which followed eleven days later in Juarez, Mexico; and, therefore, that the agreement was void and unenforceable as against public policy. As to the second count, the court concluded that there was no legal or equitable justification for awarding counsel fees.
With such corrections as were made by the court and those warranted by the motion to correct, the following facts were found.
The plaintiff and the defendant were married on September 14, 1940. For some years prior to their separation on December 27, 1965, the parties did not live as man and wife. Over an unspecified period of time the parties owned and operated the New Deal Laundry. Because of serious illness, the defendant ceased to be active in the business and the plaintiff carried on alone for one year and then closed out the business. The plaintiff's mother gave her two parcels of land in Chester, with a house located on one of them. The mother retained life use of the property. Between 1947 and 1962, the plaintiff acquired four additional parcels of residential property, all of which were purchased by the plaintiff with her own money, but the legal title to three of them was mistakenly placed in the joint names of the plaintiff and the defendant. The defendant executed notes and mortgages jointly with the plaintiff at the time title to the property was transferred. On August 21, 1962, at the instigation of the plaintiff, the defendant went to her lawyer's office and quitclaimed to her his interest in the said three properties. The mortgage payment books were transferred into the plaintiff's name anone but, through oversight, the defendant was not released from the mortgage notes. The tax assessments on these properties, at 50 percent of market value, totaled approximately $53,000.
The plaintiff claims that she decided to divorce the defendant about seven years before initiating the proceedings because of his improper advances toward the plaintiff's niece and ward, a minor child. The plaintiff's subsequent discovery of repetitions of such improper advances by the defendant came after August 21, 1962. On December 27, 1965, the parties were dwelling separately in one of the houses acquired by the plaintiff. As of that date the plaintiff had been working for some years at G. Fox and Company, a department store in Hartford. The defendant, who had left school in the eighth grade, was employed in Bill Hahn's Restaurant at $115 per week. On this date, or shortly prior thereto the plaintiff consulted Attorney William P. Lage Regarding a divorce. She made a partial disclosure of her financial situation and of the related property interests of the parties. On December 27, at above 8:30 p.m., the plaintiff came home, accompanied by a friend, Mrs. Ann Foggitt, a nurse. In her presence she informed the defendant that he would have to leave the house that night and that she had thought over their marital situation and had decided to divorce him. The plaintiff informed the defendant that he would need legal representation in Mexico, that he could have his own Connecticut attorney select a Mexican lawyer, in which event he would have to pay his own counsel, or he could have the plaintiff's attorney make the selection, in which case the plaintiff would bear the expense of the Mexican attorney. The defendant chose the latter alternative. On or about December 29, 1965, the parties met at the office of Harry Archambault, an insurance agent and notary public, and the defendant executed a special power of attorney appointing Oscar Gutierrez as his attorney to represent him in the divorce proceedings, based on incompatibility of temperament, in the state of Chihuahua, republic of Mexico. On December 31, the parties met at the office of the plaintiff's attorney and the defendant read and executed with the plaintiff a separation and property settlement agreement prepared by the plaintiff's attorney. On January 11, 1966, the plaintiff was granted a divorce in the First Civil Court, Bravos District, state of Chihuahua, republic of Mexico, on the ground of incompatibility of temperament. In accordance with the provisions of the agreement, it was offered in evidence in the divorce action and the court confirmed, ratified, and incorporated the contract by reference into the divorce decree and expressly declared it not to be merged in the decree and to survive it; and the parties were ordered to comply with all the terms and conditions of the agreement. The court was held in Juarez during the plaintiff's stay there of about twenty-four hours.
The separation and property settlement agreement provided that the defendant, during his lifetime, pay to the plaintiff the sum of $30 weekly for life or until her remarriage. It also provided for a contemporaneous assignment by the defendant to the plaintiff of all his interest in an indenture of trust known as Commonwealth Fund. The agreement also provided for the mutual division of 107 shares of jointly held stock of Fundamental Investors to be registered in their individual names with 54 shares registered to the plaintiff and 53 shares to the defendant. The plaintiff agreed to transfer and did transfer to the defendant a 1958 Dodge station wagon then registered in her name. Nothing was mentioned in the agreement concerning 39 shares of Kaman Aircraft stock which had been purchased by the plaintiff and registered in the defendant's name, or some Hartford Electric Light Company stock. These together were divided amicably between the parties following the execution of the contract. The plaintiff later sent the defendant his Provident Mutual Life Insurance policy.
In paragraph seven, the parties released each other from all claims except those contained expressly in the agreement. In paragraph ten, the agreement provided that each party shall at any time and from time to time take any and all steps and execute, acknowledge and deliver to the other party any and all further instruments and assurances that the other party may reasonably require for the purpose of giving full force and effect to the agreement. Provision was also made that no modification or waiver shall be valid unless in writing and signed and acknowledged by both parties, and that the agreement was binding on the parties, their heirs at law, next of kin, distributees, executors, administrators and other personal representatives. Before executing the agreement, the defendant made no mention of the real property, and there is no evidence to show that he contributed toward its purchase, nor did he ever make a payment on any of the mortgages; on the contrary, he had frequently expressed a marked distaste for having anything to do with the real estate, its maintenance, upkeep or management. Prior to executing the property settlement agreement, the defendant read its provisions, stated that he did not want to consult his own attorney, and signed and acknowledged the document.
As stated above, the court concluded, for the reasons noted, that the agreement was void and unenforceable as against public policy. It also concluded on the second count that the plaintiff had retained her counsel's services to enforce her claim to support payments under the terms of the separation and property settlement agreement and that there was no legal or equitable justification for the award of counsel fees.
The defendant has placed his maximum reliance on Rifkin v. Rifkin, 155 Conn. 7, 8, 229 A.2d 358, 359, in which the validity and enforceability of a property settlement and separation agreement were the decisive issue, and the judgment of the trial court holding the agreement void and unenforceable as against public policy was affirmed on appeal. In that case, the decision was substantially, if not entirely, based on the admitted fact 'that the agreement was not examined, approved or adopted by any court of this state or by the Arkansas court which granted' the divorce. Id., 9, 229 A.2d 359.
The situation in the case before us differs from Rifkin in many essential respects which in our opinion render the rule followed by the court inapplicable. The parties here had been separated as man and wife for several years before the ouster of the defendant from the plaintiff's house actually occurred. Admittedly, the decision to seek a divorce was actuated significantly by the defendant's improper advances toward the plaintiff's niece and ward, who was then a minor. We cannot obliterate that fact in order to arrive at a consistent conclusion that the sole purpose of the agreement was to facilitate a 'quickie' divorce, thus rendering the agreement void and unenforceable as against public policy. The transcript...
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