Dranow v. Gluck

Dranow v. Gluck (99-042); 171 Vt. 530; 758 A.2d 776 

[Filed 21-Jul-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-042

                               MAY TERM, 2000


John T. Dranow	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Washington Family Court
                                       }	
Louise E. Gluck	                       }
                                       }	DOCKET NO. 444-10-95WnDmd

                                                Trial Judge: Edward J. Cashman
         

             In the above-entitled cause, the Clerk will enter:


       Husband appeals from a family court order, on remand from this Court,
  granting wife's  motion to enforce the terms of a divorce decree.  He
  contends the court again erred in finding that the  parties intended, by
  their stipulation, that husband would unconditionally guarantee a monthly
  sum  of money to wife.  We affirm.

       The parties are part owners of the New England Culinary Institute
  (NECI).  The second  paragraph of their stipulated divorce order provided
  that husband was to cause NECI to pay wife  certain monthly sums until NECI
  is sold.  The agreement further stated that the "services rendered or  to
  be rendered" for compensation were to be worked out between wife and one of
  the NECI   principals, Fran Voigt.  The parties stipulated that payments
  were to be guaranteed by husband  should NECI fail to pay "for any reason
  whatsoever." 

       NECI made a few payments while learning of the arrangement, but
  refused to pay after three  months, and wife filed an enforcement action
  against husband.  Husband claimed that payment was  not due because wife
  failed to negotiate an agreement in good faith with NECI.  Enforcement was 
  granted by the court on the ground that the provision imposed an
  unconditional obligation to pay on  the part of husband.  Husband appealed. 
  We reversed and remanded because we found the  agreement to be ambiguous,
  and therefore, the court should have heard evidence and decided the 
  question of the intent of the parties, or more specifically, whether
  payment was conditioned upon the  further negotiation of an agreement
  between wife and NECI.  See Dranow v. Gluck, 710 A.2d 172,  172 (1998)
  (unpublished disposition).  

       On remand, the court held an evidentiary hearing in December 1998. 
  The court concluded  that the parties intended that wife would receive
  monthly payments from NECI, that NECI's  involvement was a device to avoid
  an order for alimony that would be modifiable in the future,  and  that the
  payments were not necessarily linked to work "rendered or to be rendered." 
  Therefore, 

 

  whether wife negotiated in good faith over the work that was to be valued
  in the past or in the future  was not relevant to the husband's ultimate
  obligation to pay.  The court ordered enforcement of the  agreement and
  husband again appealed.

       On appeal, husband makes a wholesale attack on the findings that
  amounts to asking this  Court to adopt his theory of the case and reject
  his wife's.   First, he quarrels with the family court's  view of the
  evidence by insisting that the parties intended that a further agreement
  would be  negotiated before husband's obligation to pay would come into
  play.  The court's view that no further  negotiation was needed is
  supported by the testimony of wife, as well as the other NECI 
  stockholders, Fran and Ellen Voigt.  The court found that at the time the
  parties made the agreement,  wife required additional monthly income to
  meet her needs and husband did not want to pay this  money in the form of
  alimony, precisely because it is modifiable.  Wife did not insist on the
  money  being paid in a form that would be modifiable, as long as she
  received it.  Therefore, she agreed that  NECI could pay her the money, as
  long as she could be sure that the money would, in fact, be paid. 

       It was husband's scheme to get NECI to pay wife for services, even if
  the services had been  rendered in the past.  The court found, with support
  in the record, that the husband proposed this  scheme without consulting
  NECI and that after NECI realized what was happening, the Board of 
  Directors refused to continue paying.  To the extent that husband set forth
  a different theory of the  case, i.e., that he had NECI's support for the
  arrangement and that it was wife who caused the deal to  fail by refusing
  to negotiate in good faith, the court rejected it as not credible.  The
  family court is  entitled to weigh the evidence and decide the credibility
  of witnesses, as well as draw all reasonable  inferences from the
  testimony. "Given its unique position to assess the credibility of
  witnesses and  weigh the evidence, we will not set aside the court's
  findings if supported by the evidence, not its  conclusions if supported by
  the findings."  Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 
  (1998).  Despite husband's numerous claims that the findings or inferences
  are unreasonable or do  not appear in the evidence, a review of the
  transcript reveals that the material elements of the court's  view of the
  evidence are supported.

       All of husband's claims of error would require us first to accept his
  premise that the court's  view of the evidence is erroneous.  Because we
  affirm the court's conclusion that the parties intended  NECI's involvement
  to be only a mechanism for the payment of a non-modifiable sum, the other 
  claims of error on appeal are without merit.

       Affirmed.

                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice                   	

 


                                       _______________________________________
                                       James L. Morse, Associate Justice                  	

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice                  	

                                       _______________________________________
                                       Jane G. Dimotsis, District Judge,
                                       Specially Assigned