Aufrichtig v. Aufrichtig - 34909 ( La. App. 2 Cir 08/22/01), 796 So. 2d 57

Rule:

A stipulation entered into by and between parties to a lawsuit and later incorporated into a consent judgment in the lawsuit is a transaction or compromise between the parties for the purpose of preventing or putting an end to the lawsuit in the manner in which they agree. La. Civ. Code Ann. art. 3071. A consent judgment is in effect a bilateral contract by which the parties adjust their differences by mutual consent-an essential element of every contract. La. Civ. Code Ann. art. 2046 provides that when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. Whether a contract is ambiguous is a question of law. 

Facts:

Robert and Sandra entered into a consent judgment of divorce on July 3, 1990. Incorporated into the judgment were the parties' stipulation to mutual fault and agreement that Robert would pay Sandra $ 300 per week in nonmodifiable contractual alimony for 520 weeks, terminable only upon the death of either party or Sandra's remarriage or open concubinage. The judgment also provided that Robert would provide health insurance for Sandra until her remarriage and make payments of $ 350 per week for 520 weeks representing an equalizing payment regarding the community property settlement. On October 18, 1996, Robert sought to terminate the contractual alimony obligation on the grounds of Sandra's open concubinage. On January 24, 1997, the parties again entered into a consent judgment in which Robert agreed to pay Sandra $ 100 per week in contractual alimony for a period of 172 weeks terminable only upon the death of either party. The judgment further ordered that all other provisions of the July 3, 1990 judgment were to continue "in full force and effect."

On May 31, 2000, Sandra instituted a rule to accrue past due sums pursuant to the January 24, 1997 judgment, contempt and attorney fees. Therein, she alleged that Robert remained in arrears for a total sum of $ 5,850, representing $ 1,300 in alimony and $ 4,550 in equalizing payments. She also alleged that Robert had ceased providing her medical insurance in May, 2000 in violation of the July 3, 1990 agreement. However, on April 26, 2000, and May 1, 2000, Robert had forwarded Sandra the total sum of $ 3,711 which represented the full arrearage amount less $ 2,139, for which he claimed Sandra owed him reimbursement. After considering the evidence offered, the trial court declined to hold Robert in contempt of court but assessed him with $ 1,864 in arrearages and attorney fees and ordered that he maintain health insurance on behalf of Sandra pursuant to the July 3, 1990 judgment. 

Issue:

Did the trial court err in ruling that Robert must maintain paying health insurance on behalf of Sandra pursuant to the July 3, 1990 judgment?

Answer:

No.

Conclusion:

In separate paragraphs, the July, 3, 1990 agreement provided that Robert pay contractual nonmodifiable alimony of $ 300 per week for a period of ten years, terminable only upon the end of the period, the death of either party, remarriage of Sandra or her living in open concubinage. The next paragraph of the agreement ordered Robert to pay for health insurance until Sandra's remarriage. The January 24, 1997 judgment provided that the contractual alimony set forth in the July 3, 1990 judgment be terminated and ordered Robert to instead pay contractual alimony of $ 100 per week for a period of 172 weeks. The judgment continued in full force and effect "all other provisions" of the July 3, 1990 judgment. Under the clear and unambiguous terms of the July 3, 1990 consent decree, the parties intended to exclude from the definition of "contractual alimony" the health insurance premiums. This intent is clear, not only from the placement of the health insurance provisions in a separate paragraph of the agreement which does not refer to contractual alimony, but also from the different restrictions placed upon the termination of each obligation, i.e., termination of health insurance upon Sandra's remarriage only as opposed to death, remarriage or open concubinage in the case of contractual alimony. Accordingly, it follows that when the January 24, 1997 agreement terminated the contractual alimony provision of the July 3, 1990 judgment, the parties did not intend to modify or terminate the health insurance premiums but rather continued in full effect that provision of the earlier judgment. Accordingly, under the clear import of the agreements, Robert is bound to pay the health insurance premiums until Sandra's remarriage.