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Stabile v. Stabile9/6/2002
Essex.
December 14, 2001
Divorce and Separation, Modification of judgment. Contempt. Contract, Construction of contract.
We are asked to interpret a portion of the parties' modified divorce decree, which provides that the former husband maintain a college fund for each of the minor children. We vacate the judgment below that the husband was not in contempt of the modified decree and remand to the trial court for further action consistent with this opinion.
Background. The parties, Kathie Stabile and Gerald Stabile, Jr., were divorced on December 10, 1993. At a later point, they agreed to a modification of the divorce decree by the addition of terms contained in a stipulation signed by them and their attorneys. On December 18, 1996, the Probate and Family Court entered a modified judgment of divorce that incorporated by reference the signed stipulation, which read, in pertinent part, as follows:
"Beginning in 1997, the Defendant [Gerald] will use his best efforts to maintain a college and/or trust fund for each of the parties' minor children, and shall contribute $10,000.00 annually to each fund by December 31st of that year" (emphasis added).
On July 27, 1998, Kathie filed a contempt complaint alleging, among other things, that Gerald had failed to maintain a fund for the future education of either minor child as called for by this provision. At the contempt hearing, Kathie asserted that Gerald's income had more than doubled since the modified order entered, but that he had nonetheless failed to set up any type of fund for their children's higher education. Gerald responded that he had hoped to exercise certain stock options, which ultimately failed to materialize, to establish those funds. He acknowledged that he had not yet established a college fund for either child.
The judge concluded that Gerald was not in contempt, stating that the terms of the stipulation relating to the maintenance of college funds were not "clear and unequivocal as to the duties and obligations of the defendant." Consequently, Kathie "did not meet her burden of proving a clear and undoubted violation of a clear and unequivocal order of" the court. The court subsequently denied Kathie's motion for reconsideration and clarification, in which she asked the court to specify how the contested provision was not "clear and unequivocal." This appeal followed.
Discussion. Kathie asserts on appeal that the provision requiring Gerald to maintain college funds for each of their minor children was neither unclear nor equivocal. Moreover, she contends that Gerald made no effort whatsoever to comply with its terms despite his obligation to do so. Gerald, on the other hand, claims that his obligations are unclear, and the order ambiguous, due to the substitution of the phrase "will use his best efforts to" for the word "shall" with respect to the maintenance of college funds. Specifically, he claims that an inconsistency exists between the requirement that he shall pay $10,000 annually into each fund and the provision that he use his "best efforts" to maintain the funds.
We discern no ambiguity or inconsistency here. Looking no further than the express language of the parties' stipulation adopted by the court, we conclude that the command of the modified divorce decree was sufficiently clear and unequivocal to support a claim for contempt against Gerald. The modified order requires Gerald not only to use his best efforts to maintain college funds for each of the parties' minor children, but also to contribute $10,000 annually to each child's fund. In order to discharge those responsibilities, he is necessarily under an obligation fi
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