4 August 1998 Agreement, see, ~ February 8, 2011 SMF 1145, 61, 67, 71, 74, the court is
not bound by those assertions but must reach its own conclusions. The interpretation of
a contract is an issue of law. Moreover, the court concludes that the Agreement is a
partially integrated contract, and the parol evidence rule therefore precludes Dale from
offering evidence that contradicts or varies the express terms of the Agreement. ~
ME 146114, 956 A.2d 104, 108.
The core facts that the court finds to be undisputed for purposes of summary
judgment are that both parties duly executed the August 1998 Agreement, that both
parties were represented by counsel in the negotiation, drafting, and execution of that
Agreement, 6 that the Agreement specified that Dale would pay child support of $280.00
per week with certain provisions purporting to prevent any modifications of that child
support amount, and that the Agreement also provided, as noted above, that Dale
would pay for Abby's college education. The latter obligation is not one that a court
could impose but is permissible as part of a contractual agreement between divorcing
spouses. See Hawkins v.GilbQ- 663 A.2d 9 (Me. 1995).
Other significant provisions of the August 1998 Agreement are the following:
• As previously stated, the Agreement provides that it shall be enforced "as a binding contract between the parties independent of their divorce case" (§ 12). It also provides that the obligations set forth in the Agreement"shall be enforced only in an action separate and distinct from their divorce action." Agreement § 10.
• The Agreement states that the $280 child support obligation "shall not be increased or decreased by court order or otherwise" except as provided in sections 5 and 6. Those sections provide for modifications if Dale's taxable income drops below $70,000 or Dale becomes the primary custodial parent. Agreement §§ I, 5-6.
6See Plaintiff's January 19, 2011 SMF err 4. Dale responded to that paragraph with a qualified admission but the qualification relates only to the fact that he never saw any version of Exhibit A to that agreement.
5 • The Agreement provides that both parties agree not to initiate any court action to increase or decrease child support except as set forth in sections 5 and 6. Agreement § 7. It further provides that if Faye initiates court action to modify child support, Dale's obligation to pay Abby's college expenses will be reduced according to a specified formula, Faye will have to repay certain amounts to Dale, and Faye will be responsible for Dale's attorneys fees. Id. § 7(a). If Dale initiates court action to modify child support, Dale's obligation to pay for Abby's college expenses will be immediately accelerated pursuant to a specified formula, Faye will hold those amounts as trustee for the initial college payments due, and Dale will be responsible for Faye's attorneys fees. Id.
• Section 7(a) of the Agreement also contains a provision that if either party initiates court action to modify child support, "this Agreement shall not be entered into evidence" except as to the obligation of the party initiating court action to pay the other party's fees.
The Agreement also provides (§ 10) that the parties' divorce judgment and
related orders will not be modified by the Agreement "except to the extent of a
stipulated modification incorporating an Amended Child Support Order of the form
attached hereto as Exhibit A." Notwithstanding the "attached hereto" language, it
appears that no Exhibit A was in fact attached when Dale and Faye signed the
Agreement. In his affidavit, which is unrebutted for purposes of summary judgment,
Dale states that he never saw any draft or final version of Exhibit A; Faye also does not
recall seeing it. Defendant's February 8, 2011 SMF ~~ 10, 11.
The original signed Agreement was forwarded to the court with a cover letter by
counsel for Faye which stated that it was enclosing the Agreement "for filing with the
court." That letter indicates that it was copied to Dale's counsel without the enclosure.
No Exhibit A was attached to the Agreement when it was submitted to the court.
Although the Agreement was duly placed in the court file, the court never approved the
Agreement nor did it enter any child support order after the original February 7, 1997
order accompanying the Divorce Judgment. That order had required Dale to pay
$196.00 in weekly child support.
6 It is undisputed that Dale paid $ 280.00 per week in child support from the date
of the August 1998 Agreement until Abby turned 18 and that neither Faye nor Dale ever
sought any judicial modification of child support.
The summary judgment record leaves open the following issues among others:
(1) which party was responsible for inserting the anti-modification provisions; (2)
whether Exhibit A was inadvertently omitted or whether one or both counsel were
aware that it had been omitted; (3) whether the failure to have the court approve the $
280.00 per week child support obligation was inadvertent or whether one or both
counsel chose not to seek such approval; and (4) whether Faye, her counsel, or Dale's
counsel were aware that the anti-modification provisions were or that Dale's $ 280.00
child support obligation was unenforceable because it had never been approved by the
court. 7
3. Law of the Case
At the outset, the court does not agree with Faye's argument that its December 7,
2010 attachment order constitutes the law of the case. Trial court rulings (as opposed to
appellate court rulings) are always subject to reconsideration, and this is particularly
true of preliminary rulings. See C. Wright, A. Miller & E. Cooper, E~deTIlLPractice &
Procedure: Iurisdiction 2d § 4478.1 at 692-93, 698 (2002). The December 7 order was
based on the record before the court at that time, and the court is not bound by that
ruling if additional facts are presented at the summary judgment stage or if additional
legal authority persuades the court that its legal conclusions should be revised.
7 For purposes of summary judgment the court accepts Dale's assertion that he was unaware that any portion of the 1998 Agreement was unenforceable. Defendant's February 8, 2011 SMF
7 4. Dale's Arguments as to Indefiniteness, Lack of Mutual Assent, Lack of Consideration, and Violation of Contact and Visitation Rights
The first two arguments raised by Dale are that, because Exhibit A to the
Agreement is missing, the Agreement is too indefinite to be enforced and there was no
mutual assent. Those arguments do not preclude summary judgment for Faye. Mutual
assent is plain on the face of the Agreement, and the Agreement is sufficiently definite
to be enforced and is not missing any essential terms. Compar~ Ault v. Pakulski, 520
A.2d 703, 704-05 (Me. 1986). Moreover, Dale has not identified any significant gaps in
the Agreement that Exhibit A was intended to fill. Indeed, if either party were to offer
testimony that Exhibit A was intended to be anything but a proposed child support
order setting weekly child support at $280, that testimony would be precluded by parol
evidence.
In addition, although Dale claims that the Agreement is void for failure of
consideration, the reciprocal promises contained in the Agreement constitute adequate
consideration, as the Agreement expreSSly states on page 2. 8
Dale also argues that he has been released from his obligations because of Faye's
alleged violations of the contact and visitation provisions in the Divorce Judgment. The
problem with this argument is that the Agreement states on its face that it is intended to
be a contract independent of the divorce judgment. Language in the Agreement stating
that the Agreement "does not supersede either the second or fourth paragraphs of the
said Referee's Report and Divorce Judgment" (Agreement § 10) does not have the effect
8To the extent that Dale is arguing that there is a failure of consideration once the unenforceable provisions are deleted, unenforceable contract provisions may constitute adequate consideration. Restatement Second Contracts § 78.
8 of incorporating the Referee's Report and Divorce Judgment into the Agreement. Dale
had a separate remedy for any breaches by Faye of the visitation and contact provisions
in the divorce judgment, and the August 1998 Agreement does not condition Dale's
obligations on Faye's adherence to the divorce judgment.
5. Enforceability on Public Policy Grounds
Dale's major remaining argument is that, because agreements not to modify child
support are unenforceable as against public policy and because child support
agreements are only enforceable if approved by the court, the entire 1998 Agreement
should be declared unenforceable, thereby releasing him from his obligation to pay for
Abby's college education.
The court agreed in its December 7, 2010 order that the provisions in the 1998
Agreement that purport to preclude any modifications of the parties' child support
obligations would have been unenforceable as against public policy. December 7, 2010
order at 1; see Holbrook v. Holbrook, 2009 ME 80
enforceable, child support agreements must also be judicially approved. However, in its
December 7, 2010 order the court did not agree that the anti-modification provisions
and the absence of court approval of the $280 child support figure necessarily rendered
Dale's promise to pay college expenses unenforceable, particularly if Dale was the party
who had requested or benefitted from the anti-modification provisions. The court
retains that view despite the additional authority cited by Dale.
Specifically in Court v. Kiesman, 2004 ME 72
Law Court held that it would not enforce an agreement between parents relieving a
father from his child support obligations for three years in exchange for a 10 year old
truck. The court stated that it "would not enforce a contract that contravenes public
9 policy." Id. <]I 11, 850 A.2d at 333. Court v.Kiesman did not involve a situation where
there were additional provisions of the agreement between the parents that did not
contravene public policy. Court v.Kiesman was also a case where a parent was seeking
to avoid his obligation to pay child support and thereby to frustrate the legislative goal
of protecting the economic welfare of children whose parents are divorced. See id. <]I 9,
850 A.2d at 332.
In the case at bar Faye is not seeking to avoid paying child support; she is instead
seeking to enforce a separate provision of the agreement that does not violate public
policy. This case would only be comparable to Court v. Kiesman if the agreement in
that case had contained a provision requiring the father to pay college expenses and if
the father were arguing that because the mother had agreed to accept a truck in lieu of
child support, she was therefore barred from seeking the college expenses that she had
been promised.
Similarly, in Fisco v. Department of Human Services, 659 A.2d 274 (Me. 1995), a
father opposed the collection of child support on the ground that he had agreed with
the child's mother to forego any visitation in exchange for a release of his child support
obligation. The court ruled that the father was not entitled to rely in such an agreement.
659 A.2d at 275-76. The instant case is distinguishable in that Faye is not seeking to
frustrate the legislative policy of ensuring post-divorce child support and is not seeking
to enforce a contractual provision that is against public policy.
From a review of the August 1998 Agreement, it can be inferred that the
contractual provision precluding any modification of child support was designed to
benefit Dale 9 and that Faye agreed to that provision (and potentially accepted a lower
9One of the recitals of the Agreement states that since the divorce, Dale's income "has increased considerably more substantially than Faye's income."
10 amount of child support) in exchange for Dale's promise to pay college expenses in the
future. If so, the court would find that Dale cannot escape his obligation to pay Abby's
college expenses by arguing that the anti-modification provisions of the Agreement
violated public policy.
However, the court is not able to grant summary judgment to Faye on this issue
because, on a motion for summary judgment, it must draw all inferences in favor of the
party opposing summary judgment. The existing summary judgment record does not
establish beyond dispute that Dale should be required to pay Abby's college expenses.
For instance, the summary judgment record does not establish that the anti
modification provisions were sought by Dale, that those provisions were designed to
benefit him, or that they did in fact benefit him. The summary judgment record also
does not establish the circumstances under which Exhibit A to the 1998 Agreement was
omitted and the circumstances under which no court approval of the amended child
support figure was ever obtained. The court concludes that the parties are entitled to
offer evidence on these issues before it can finally rule on whether Dale's college
obligations are enforceable.
6. Dale's Unjust Enrichment Claim
In his cross motion for partial summary judgment, Dale seeks summary
judgment on an unjust enrichment claim for all amounts he paid in child support in
excess of the $ 196.00 child support order entered by the court in February 1997. The
short answer to this argument is that unjust enrichment is an equitable claim, and on
this record Dale has not established that it is "inequitable for [Faye] to retain the
benefit" of those payments, see Platz Associates v. Finl~ 2009 ME 55 1 27, 973 A.2d
743, 750, simply because the court never approved the $280.00 weekly child support
11 amount Dale paid after July 1998. Whether Dale is entitled to any recovery on this claim
will depend, inter alia, on the relative incomes of the parties during the time on
question and may be affected by the relative responsibility of the parties for the failure
to obtain court approval.
7. College Application and Dorm Room Supplies
Dale objects to Faye's request for reimbursement of Abby's SAT class expenses,
tutoring costs, application fees, and dorm room supplies. Faye has not offered any
reason why the court should not resolve the issue of whether those expenses are
recoverable by looking to the language of the August 1998 Agreement. That agreement
limits Dale's obligation to "all expenses incurred by Abby for tuition, room, board,
books and activity fees for up to four (4) academic years." Agreement § 3. The
additional expenses sought by Faye do not fall within the language of the Agreement
and are not recoverable.
The entry shall be:
Plaintiff's motion for partial summary judgment is denied. Defendant's cross motion for partial summary judgment is granted in part with respect to the dismissal of plaintiff's claims for SAT class expenses, tutoring costs, application fees, and dorm room supplies. In all other respects defendant's cross-motion for partial summary judgment is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: June 2.1, 2011
Thomas D. Warren Justice, Superior Court
12 FAYE B SANDLER VS DALE T LALONE UTN:AOCSsr -2010-0093670 CASE #:PORSC-CV-2010-00443
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