O'Connell-Starkey v. Starkey

*20Dooley, J.,

¶ 23. dissenting. The majority holds that the parties here unambiguously intended to preserve defendant’s previously agreed obligation to fund a portion of the child’s college education despite their subsequent agreement that defendant is “not the biological father of the parties’ minor child” and “as a result . . . has no legal or physical rights and responsibilities with respect to the parties’[] minor child.” This conclusion is supported by neither the language of the agreement nor the evidence surrounding its execution, which demonstrate — at a minimum — a patent ambiguity concerning the parties’ meaning and intent. Rather than affirm, therefore, the Court should reverse the judgment and remand for the factual findings that the law and the record here require. Accordingly, I respectfully dissent.

¶ 24. The main deficiency in the majority opinion, apart from its conclusion, is that it barely acknowledges, and fails to address, defendant’s argument. This case is not primarily about paragraph 3 of the 1999 order, as the majority states; it is about paragraph 1. That paragraph states that “as of the date of this stipulation, [defendant] has no legal or physical rights and responsibilities with respect to the parties’ minor child.” If that paragraph contained nothing else, I believe that the resolution of this case would be obvious. The provision that defendant has no “legal . . . responsibilities” would clearly preclude any child support obligation, and related financial obligations, such as the higher education payment responsibility that is at issue in this case. It would cover those financial responsibilities even though they were specified in earlier orders.

¶ 25. The issue then is whether the other language of paragraph 1, striking paragraph 2 of the original divorce order and vacating “[o]nly Paragraphs 1, 6 and 7 of the stipulated modification order dated March 24, 1998” makes the last sentence of the paragraph inoperative as a matter of law. The family court held that the opening language necessarily trumped the later language, because the obligation that plaintiff is enforcing is in the 1998 agreement and the paragraph containing it is not “1, 6, [or] 7.” That logic is appealing, but we should be suspicious of labeling as unambiguous language that is internally inconsistent. For a number of reasons, the internal inconsistency is strong here, and the superficial logic *21of the family court analysis should not prevail. Bad drafting has made the language hopelessly ambiguous, and to the extent the language is not ambiguous, it favors defendant’s result, not plaintiffs.

¶ 26. The majority’s main general response to this dissent is that it is based on an assumption of defendant’s intent that is a “basic, harsh philosophy” that defendant does not want to continue “to love and provide for that child.” Ante, ¶ 14. If defendant wanted to continue to “provide for that child,” he never would have contested the obligation to pay or brought this appeal. The essential disagreement between this dissent and the majority is that I would consider and act on the evidence of defendant’s intent, whereas the majority has refused to consider it and ignores it. Defendant testified that he “was certainly not inclined to accept any financial responsibility at that point in time” and had an objection to “future or past payments of child support and/or expenses for” the child. The majority displays its disapproval of this position by calling it a harsh philosophy when stated in this dissent and suggesting that his financial argument means that he does not love the child, comments that are neither supported by the record or relevant to the appeal issue. Nonetheless, there is no question that this is the position defendant took before this Court and, according to his testimony, his position at the time of the negotiation of the agreement. This dissent makes no assumptions concerning defendant’s position. The majority, on the other hand, assumes his position must be to the contrary of what defendant states because it reflects a harsh philosophy, and that assumption is inconsistent with the undisputed evidence.

¶ 27. With that general background in mind, I address the specific reasons why we should reject the family court’s reasoning. The first and foremost reason becomes apparent when we examine the substance of the agreement the parties reached in 1999. As set out above, paragraph 1 strikes or vacates four provisions of orders arising from the parties’ divorce. The first is paragraph 2 of the divorce order of 1994. This paragraph specifies the parties’ parental rights and responsibilities with respect to the child; striking this paragraph is entirely consistent with defendant’s intent to give up all rights and responsibilities with respect to custody of the child.

¶ 28. The other three provisions, all from the 1998 order, are related to parental rights and responsibilities, and all involve *22relinquishment of defendant’s rights. Paragraph 1 of the 1998 order provided joint access to the child’s health, school, and counseling records. Paragraph 6 of the 1998 order required plaintiff to pay child support of $209 per month until the child reached the age of eighteen or completed secondary education. Paragraph 7 of the order required plaintiff to pay her portion of the child’s documented uninsured health care costs to defendant.

¶ 29. The remaining provisions of the 1998 order, not mentioned specifically in the 1999 agreement, all involved defendant’s financial responsibilities. Paragraph 2 of the 1998 order required defendant to maintain medical insurance for the child and each party to pay a portion of the child’s medical expenses not covered by defendant’s medical insurance. Paragraph 3 of the 1998 order, the paragraph involved in this case, required defendant to pay 60% and plaintiff to pay 40% of the child’s college education costs. Paragraph 4 specified that neither party was required to maintain the child as a beneficiary under any retirement program that either might have. Paragraph 5 required each party to maintain insurance on the life of the child until she completed college or reached the age of twenty-two.

¶ 30. Under the family court’s reasoning, the 1999 agreement meant that defendant relinquished full parental rights, but retained full financial obligations as if there had been no relinquishment. This reasoning makes the 1999 agreement entirely one-sided. More importantly, despite the fact that paragraph 1 of the 1999 agreement says that defendant has no legal responsibilities with respect to the child, in fact he retained the most important of his legal responsibilities: those involving money. The effect then is that the 1999 agreement is internally inconsistent, and the family court and majority of this Court have given no effect to the final sentence of the first paragraph, effectively reading it out of the agreement.

¶ 31. Second, despite the fact that the last sentence of paragraph 1 of the 1999 agreement has no effect when it comes to defendant’s legal responsibilities, it is the only provision left giving plaintiff parental rights. Rather than substituting a provision with respect to custody of the child, the parties struck all agreements and orders, leaving only the general statement in paragraph 1 that father has no rights and responsibilities with respect to the child. Thus, plaintiff is in the position of giving effect to the sentence to retain custody of the child, but denying its effects *23when they involve elimination of defendant’s responsibilities. More importantly, the majority decision necessarily means that part of the last sentence of the last paragraph of the 1999 agreement is in effect — the part that gives rights to the mother — while part is not in effect — where it eliminates responsibilities of defendant — a parsing of the language that belies any characterization that it is unambiguous.

¶ 32. Third, we are entitled to consider context evidence in determining ambiguity, and the context evidence here demonstrates ambiguity. Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 578, 556 A.2d 81, 83-84 (1988) (in determining whether an agreement is clear and unambiguous, we are not bound by the “four corners” of the agreement but may admit extrinsic “evidence as to the circumstances surrounding the making of the agreement as well as the object, nature and subject matter of the writing”); accord Kipp v. Chips Estate, 169 Vt. 102, 107, 732 A.2d 127, 131 (1999). Although the child of the parties was fourteen years old when the 1999 agreement was entered into and although the family court’s reasoning necessarily means that defendant retained all financial responsibilities, not just participation in college expenses, four years went by with no demand for such participation. The available evidence from a 1998 affidavit was that defendant made about $100,000 per year and plaintiff about $20,000 per year; yet, plaintiff made no claim for child support. In fact, the 1999 agreement suggested that there would be no child support order because plaintiff was “entitled to claim the parties’ minor child as a dependent for income tax purposes on her 1999 tax return and thereafter.” Any child support order based on the parties’ income would mean that defendant would pay the majority of the child’s expenses and be entitled to the tax deduction. See In re Marriage of Moore, 719 N.E.2d 326, 328 (Ill. App. Ct. 1999) (child support tax “exemption has historically been tied to consideration by the Internal Revenue Service of which parent would contribute the majority of the child’s support following the parent’s divorce”).

¶ 33. The general child support situation until the child reached the age of majority and went to college is also informative. The original child support order was established on a temporary basis in November 1993, when the parties continued living in the same house despite their separation and therefore no payment of child support was appropriate. Recognizing that this status quo would *24not continue, the court ordered father to file an affidavit of income and assets with the understanding that a monetary order would result. It did not occur right away, apparently because the parties continued to live in the same house. Once plaintiff moved to Virginia, however, and defendant had sole custody, he sought a child support order and finally obtained one in 1998. Based on this history, the clear expectation was that if plaintiff obtained custody, there would be a child support order under which defendant would have to pay substantial amounts. That plaintiff never returned to the family court throughout the child’s minority, as the 1993 temporary order contemplated, is a clear indication that she believed she could not obtain general child support in light of the 1999 agreement.

¶ 34. Fourth, the parties’ agreement to vacate certain provisions of the 1998 order without replacement language suggests that defendant was to have no future financial obligation. For example, the 1998 order required defendant to maintain the child on his health insurance with the parties sharing uncovered costs 40% (plaintiff), 60% (defendant). Because defendant had custody of the child, in order to implement that agreement, paragraph 7 of the 1998 order required plaintiff to pay her share of those costs within thirty days. Although the 1999 agreement switched custody to plaintiff, and according to the majority’s analysis retained the cost-sharing arrangement, it struck plaintiff’s time limit for making payments without substituting a time limit for defendant. This omission suggests that defendant had no further obligation to pay uncovered medical expenses, and there is no evidence that mother sought such amounts from plaintiff.

¶ 35. Similarly, paragraph 1 of the 1998 order gave defendant access to records of the child including “law, school, health and counseling records.” The 1999 agreement specifically eliminated that right, although under the family court and majority holding, defendant remained liable for college expenses, and medical expenses as well. That defendant is now denied access to these records is an indication that he does not have to pay for the services documented in those records. Under the majority’s result, he has cut himself off from the very information that enables him to determine that the expenses he pays are valid.

¶ 36. Fifth and finally, I reach paragraph 3 of the 1999 agreement, the focus of the family court and the majority. This paragraph says that all the issues related to defendant’s financial *25responsibilities “are not waived by either party.” The family court, and the majority, are clear that the language of this paragraph does not give defendant a right to contest any of his financial obligations in an enforcement proceeding. Beyond that, the meaning of the language is unexplained, or it is explained in terms directly contrary to the holding.

¶ 37. The family court says that paragraph 3 means that “child support issues, including college expenses, can be disputed in the future,” a phrase repeated further in the decision. The majority embraces an equally cryptic, but different meaning: the language “reserves to each party the right to continue to litigate” but “puts each party on notice that he or she might still be called to account for those provisions.” Ante, ¶ 9. The majority suggests that the problem is the title to defendant’s motion, as a motion to strike, rather than a motion to modify. Ante, ¶ 22 n.4. A motion to strike part of an order is a motion to modify the order.

¶ 38. In the words of the family court, this is “the future,” and defendant seeks to litigate whether he any longer owes college expense reimbursement in light of the language of paragraph 1. Neither the majority nor the family court explains why he cannot litigate the issue in this proceeding or how he can litigate it. Despite the vague suggestions that there is some alternative way to litigate, I read the majority as imposing exactly the waiver result that the language of paragraph 3 denies. That is, by failing to get into the 1999 agreement that the college expense obligation was vacated, defendant has waived any defense to a demand to pay. In effect, the.language of paragraph 3 is being interpreted exactly the opposite of its wording.

¶ 39. An agreement is ambiguous if “reasonable people could differ as to its interpretation.” Trustees of Net Realty Holding Trust v. AVCO Fin. Servs. of Barre, Inc., 144 Vt. 243, 248, 476 A.2d 530, 533 (1984). The majority holds that the only reasonable interpretation of the 1999 agreement between the parties is that they modified parts of their divorce order, but not the requirement that defendant pay part of the minor child’s college expenses. The more likely interpretation is that the parties agreed in 1999 that defendant would have no further legal responsibility for the minor child but could not agree to the specific consequences of that general agreement with respect to defendant’s financial responsibilities. Under that interpretation, defendant can litigate his financial obligations in this proceeding.

*26¶ 40. For the many reasons cited in this dissent, the 1999 agreement is at least ambiguous. I would reverse and remand to the family court to reach an interpretation in light of the evidence that it heard.

¶ 41. I am authorized to state that Justice Johnson joins this dissent.