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Stabile v. Stabile9/6/2002
ald's responsibilities under the order.
Gerald also claims to espy an ambiguity when the requirement that he use his "best efforts" to maintain college funds is juxtaposed with the provision that he "shall contribute $10,000.00 annually to each fund" (emphasis supplied). Yet there is an inconsistency between these provisions only if they are read as suggested by Gerald: that he must contribute $10,000 annually to a fund that he may choose not to establish. The command that Gerald contribute $10,000 annually presupposes, at a minimum, the existence of the college funds. As we have noted, the specification in the order that he use his "best efforts" to maintain such funds does not relieve him of his duty to provide college funds for the minor children. Rather, the phrase clearly and unequivocally indicates the measure of exertion that he is to apply to the task at hand. The provision that he use his "best efforts" comprehends the establishment of such funds. Rather than give rise to an ambiguity, the requirement that he deposit $10,000 annually into each account further confirms that he is to establish such funds in the exercise of his "best efforts."
We conclude that the terms to which Kathie and Gerald stipulated in 1996 were clear and unambiguous when they agreed to them, and that they are no less so now. The modified order clearly and unequivocally requires Gerald to establish a "college and/or trust fund" for each of his minor children and to contribute $10,000 to each fund annually while maintaining each account with the use of his "best efforts."
Accordingly, we conclude that Kathie satisfied her burden of proof that the provision in issue was "clear and unequivocal," and we vacate the judgment below. We also remand the matter for a determination whether or not there was a "clear and undoubted disobedience" of the modified decree and of what relief, if any, shall be granted.
So ordered.
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