Opinion
No. FA-01-0085536 S
December 10, 2003
MEMORANDUM OF DECISION
This case came before the court Nov. 14, 2003 on five separate postjudgment motions.
1. Defendant's motion to modify alimony, child support, and van payments dated June 4, 2003.
2. Plaintiff's motion for Contempt date August 26, 2003 Re Non-payment of child support and alimony.
3. Defendant's motion for Contempt dated August 27, 2003 Re Visitation.
4. Defendant's motion for Contempt dated August 27, 2003 Re Subdivision of a building lot.
5. Plaintiff's motion for contempt dated Sept. 16, 2003 Re failure to deed over real property.
Background
The parties were divorced on November 8, 2002. Pursuant to the separation agreement entered into that day and made a part of the judgment the Defendant husband agreed to pay alimony in the amount of $300.00 per week for 13 years non-modifiable as to term, child support for two children, one of which has cerebral palsy and is confined to a wheelchair in the amount of $250.00 per week and make the monthly payment on a van owned by the plaintiff in the amount of $456.50.
The defendant is a self-employed Master Electrician, who primarily works for one builder, identified as Heritage Builders. The defendant father was also to have three overnight visitations per week, and the ability " until June 1, 2003 to attempt" to subdivide the real property which included the family home at 183 Spencer Hill Road, Winsted, CT.
Connecticut General Statutes Section 46b-86 (a) provides that "unless and to the extent that the decree precludes modification" any final order for the periodic payment of support "may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party . . . In order to invoke the Court's authority to modify periodic alimony [and child support], the statute requires a `showing of a substantial change in the circumstances of either party.' " Rutkin, Family Law and Practice with Forms, Connecticut Practice Series, Section 35.2. The change must also be subsequent to the date of the original decree. Id. The courts have indicated that a court must first determine whether there has been a substantial change in the financial circumstances. If the court finds a substantial change, it may properly consider the motion and, on the basis of the statutory criteria, make an order of modification. Borkowski v. Borkowski, 228 Conn. 729 (1994). The court would then review the parties' situations as they exist at the time of hearing on the motion for modification. Milot v. Milot, 174 Conn. 3 (1977). To meet the threshold requirement, the change must only be "substantial," and need not be "dramatic." Crowley v. Crowley, 46 Conn. App. 87 (1997). "The general principal to be applied is that the change must be so significant that it would be improper and unfair to continue the original order in effect, even though it may have been proper based upon the circumstances that existed at the time it was originally entered. Noce v. Noce, 181 Conn. 145, (1980); Wingerd v. Wingerd, 3 Conn. App. 261 (1985)." Rutkin, supra, at Section 35.10. A decrease in the payer's earnings has formed the basis for motions seeking a reduction in alimony and child support. An inability to pay must be excusable and not brought about by the payer's own fault. Sanchione v. Sanchione, 173 Conn. 397 (1977). In the present case, the defendant bears the burden of showing that there has been a substantial change in the circumstances since the time the judgment was entered. Benson v. Benson, 187 Conn. 380 (1982).
As to the defendant's motion to modify alimony, child support and the van payment the court finds the following. On the date of the dissolution the defendant's sworn financial affidavit stated a weekly income of $1,058.00. On his financial affidavit dated Nov. 14, 2003, he lists $715.76 as his weekly income. The defendant testified both these amounts are averages, as an independent contractor the amount varies, some weeks it is more and some weeks it is less, depending when he is paid by the builders. At the hearing the defendant did not produce any documentation to verify this reduction, such as bank statements, tax returns, invoices or other documents to substantiate his reduced income. The defendant did testify however the amount of work he had in 2003 was about the same as 2002. The court finds the evidence presented by the defendant on a substantial change of circumstance to be severely lacking and the motion to modify the alimony, child support and van payment is denied.
The second motion is, Plaintiff's Contempt motion for nonpayment of alimony and child support. The court finds the following. The plaintiff testified the defendant was in arrears the sum of $3,450.00 as of Nov. 14, 2003. The defendant did not dispute this amount and in fact during the luncheon recess produced a check in the amount of $3,450.00 to bring himself current. The defendant argues his excuse and justification for not abiding by the court orders is his reduced income and the court hearing date having being set for November, where the amount of the payments would be contested somehow gave him a license to withhold any payments until the hearing date. The court finds the defendant willfully did not pay the alimony and child support and is found in contempt. The court further finds the defendant had the ability to pay. Had the court granted his motion for a modification he could have received credit back to the date of the motion, for the defendant to withhold payment on the hope the court would act favorably on his motion was misguided. The court having found the defendant in contempt awards Attorney Fees on this motion to the plaintiff in the amount of $350.00.
The third motion is defendant's motion for contempt alleging interference with the overnight visitation by the plaintiff, the court finds the following. The defendant testified that when he sought the overnight visitation he met resistance from his wife which resulted in an argument so he didn't pursue it. He further testified that since August 2003, he has had six overnight visits the last one in October. The plaintiff testified she has not denied visitation, but that the defendant has not until recently sought visitation. From the evidence presented the court can not find the plaintiff has willfully denied visitation. The defendant's motion for contempt dated August 27, 2003 is denied.
The fourth motion is the defendant's motion for contempt in reference to the defendant's right to attempt to subdivide the real property at 183 Spencer Hill Road, Winsted, CT. The fifth motion is the plaintiff's motion for contempt for the defendant's failure to deed over the real property at 183 Spencer Hill Road to the plaintiff. This was the most hotly contested motion the court heard. The separation agreement of Nov. 8, 2002 which was incorporated into the judgment in paragraph 13, in part reads as follows:
The husband shall transfer all of his right title and interest in the real estate located at 183 Spencer Hill Road, Winsted Ct. to the wife. However, the husband shall have the right until June 1, 2003 to attempt to subdivide the real estate in order to divide the property into two lots, the house and acreage and, in addition thereto, another lot with a minimum amount of acreage necessary to obtain subdivision approval through the Town of Winsted. The lot will be the husband's sole property. If the lot cannot be created the entire parcel stays the residence.
The parties differ on the intent of the June 1, 2003 date. The plaintiff's position is that the subdivision of the property must have been fully completed by June 1. The defendant's position is that as long as a good faith attempt had been made by June 1, he would be allowed a reasonable period of time to complete the process. The defendant testified that in January 2003, he obtained a copy of the land use regulations from the Town of Winsted as evidenced by (Defendant's Exh. 3) a receipt from the building department. His understanding of the process was as follows: 1) He first needed a variance from the Zoning Board of Appeals (ZBA) to create a rear lot. 2) That if the variance was obtained he then needed approval of the wetlands commission. 3) Once those two were completed then he had to present an A-2 survey, along with a subdivision application to the Planning and Zoning Commission. The defendant further testified he had a preliminary subdivision map completed (Def's Exh. 2), done by Berkshire Engineering dated May 9, 2003. He then filed a variance application with the Town of Winchester ZBA on May 30, 2003 (Def's Exh. 6). The ZBA scheduled the hearing on the variance for June 24, 2003 at which time the variance was approved (Def's Exh. 4). The defendant then obtained a wetlands evaluation from George T. Malia, Jr., Certified Soil Specialist dated July 5, 2003 (Def's Ext. 8). The defendant testified that when he sent someone to do further site work on the property they were told by the plaintiff to leave and to date nothing further has been done to finish the lot split. He contends that by the plaintiff's interfering with the process she is in contempt. The defendant testified all there is left to do is to obtain wetlands approval, an A-2 survey and Planning and Zoning Approval. He estimates this could take up to one year.
The plaintiff's position is the defendant's time is up and the defendant knew June 1, 2003 was a final date, and by not transferring title to her for the entire parcel at 183 Spencer Hill Road the defendant is in contempt. To support her argument that June 1, 2003 was a final date, she points to a letter from Atty. Garrity on behalf of the defendant dated May 19, 2003 requesting an extension of the time to obtain approval. (Plaintiff's Exh. 6.)
The issues left for the court to determine is, 1) Does the court have jurisdiction to modify paragraph 13 of the agreement, due to it being a property settlement? And if it does, 2) what was the intent of the parties as to the significance of the June 1, 2003 date and what was meant by the phrase " until June 1, 2003 to attempt to subdivide"?
Property assignments in a divorce cannot later be modified or set aside by a court. See Rutkin, Sec. 30.1. Connecticut General Statutes Section 46b-81 authorizes the division of real and personal property at the time of entering a decree annulling or dissolving a marriage or for a legal separation. In general, the court has no continuing jurisdiction over that portion of the judgment providing for a property assignment. See Bunche v. Bunehe, 180 Conn. 285 (1980), Smith v. Smith, 249 Conn. 265 (1999), and Ammirata v. Ammirata, 5 Conn. App. 198 (1985). However, in the case at bar, it is necessary to distinguish between permissible changes to the orders relating to the manner in which the property distribution is to be carried out and impermissible changes to the essential terms of the distribution order. See e.g., Niles, supra; Roberts v. Roberts, 32 Conn. App. 465 (1993) (such an order of auction would be properly effectuating the original judgment, rather than modifying its terms, notwithstanding that the original judgment did not provide for a sale at auction); Clement v. Clement, 34 Conn. App. 641 (1994) (in the view of the Appellate Court the nonpayment of the mortgage and the resulting loss of the house undermined the integrity of the original judgment and requiring the husband to pay the wife the value of the loss caused by his nonpayment was a proper means of preserving the integrity of the original judgment). In those cases, the Court determined that it had authority to enter postjudgment orders as to the distribution of real or personal property where the effect is not to modify the orders, but to effectuate the judgment and protect the integrity of the original orders.
When an interest in real property is assigned as a property distribution pursuant to . . . 46b-81, the enforcement measures necessary to effectuate that decree will depend in part upon the specific terms of the order . . . 46b-81 (a) empowers the court to pass title to real property to either party or to a third person without any act by either the husband or the wife. When an order directly passing title has been made, no further enforcement action is necessary. The party receiving the interest in real property need only record the decree on the land records of the town where the property is situated and that decree will serve to transfer the title as it if were a deed of the parties. 46b-81 (b) . . . Even if the decree awarding the property to one of the parties does not include an order for the direct transfer of the . . . real property, it may be possible to obtain such an order in a post judgment enforcement proceeding if the necessary transfer has not taken place . . . [ 46b-66a (b)] provides that when any party is found to have violated an order of the court to convey title to real property to the other party or to a third person, the court may, by decree, pass title without any act by either party when, in the judgment of the court, it is the proper action to take.
A slightly more difficult enforcement problem is presented if the original order called for the sale of the property rather than a direct transfer . . . If a party refuses to cooperate in the sale or obstructs the process so that no reasonable sale can be concluded, any remedy which is to be genuinely useful will require the court to take the sale process out of the control of the obstructive party. In one instance the court achieved this result by ordering the property sold at auction. Roberts [citation omitted]. This was seen as an allowable means of effectuating the original order, and not an improper modification of the property judgment . . . An order in lieu of deed transferring the property to one spouse for the express purpose of carrying out the other terms of the order for the disposition of the property would generally be one to effectuate the original order and not an improper modification, based upon the analysis in the Roberts decision . . .
Rutkin, supra, Section 30.4.
In the case at bar there is not to be a simple transfer of the real estate from the husband to the wife. The transfer is conditioned upon the happening of a future event. This case revolves around a determination as to the application and interpretation of the order in light of the subsequent events.
Orders relating to transfers of real property and payments in connection with said transfers frequently include dates or time limits by which a transfer and/or corresponding payment must be accomplished. Technically, one might expect that observation of such time limits would be strictly enforced in light of the court's lack of authority to modify orders relating to property distributions. However, strict compliance as to time limits may not be enforced where it appears that time was not of the essence under the judgment, at least where there has been substantial performance and delays were not attributable to a party's own fault or wrongdoing. Mihalyak v. Mihalyak, 11 Conn. App. 610 (1987).
Rutkin, supra, 30.5.
In the Mihalyak case, the trial court found that performance within a reasonable time after a fixed date was sufficient. 11 Conn. App. 610, at 615-16. See also Miller v. Bourgoin, 28 Conn. App. 491, at 498-99 (1992) (Because delays are typical in transactions involving real property . . . time is ordinarily not of the essence in these contracts . . . The resolution of whether it is part of the contract involves a question of the intent of the parties, to be determined, as a matter of fact, from the language of the contract, the circumstances attending its negotiation, and the conduct of the parties in relation thereto. (Quotation marks and internal citations omitted.)).
The defendant argues the terms as to the lot split were ambiguous. The plaintiff contends the language is clear and unambiguous. If the plaintiff intended a certain meaning she could have ensured that language was used, since her attorney drafted the agreement. In Mihalyak, supra, at 616-17, the court held:
A judgment rendered in accordance with the stipulation of the parties is to be construed and regarded as a binding contract. Construction of such an agreement is an issue of fact to be resolved by the trial court as the trier of fact . . . The construction and interpretation of the agreement necessarily depends upon the intent of the parties as manifested by the language of the agreement . . . Where the language of the agreement is unclear, the trier of fact must look to other factors to determine the parties' intention . . . The defendant alleges that the language of the agreement is clear and unambiguous . . . Where a time for performance is stated in an agreement, a party's tender of performance within a reasonable time thereafter will be considered substantial performance unless the parties intended that time for performance be of the essence. Where the agreement does not specifically state that time is of the essence, it is presumed not to be unless the parties have expressed a contrary intent. [Internal citations omitted.]
See also Breiter v. Breiter, 34 Conn.L.Rptr. 36, and AC 22132 (decision released December 2, 2003). "A contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. Moreover the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." Dretels v. Dretels, 79 Conn. App. 467 (2003) (internal citations omitted). In the present case, "attempt" is an understandable and clear term. The date was a target date, and time was not stated to be of the essence.
The court finds that it does have jurisdiction, due to the ambiguity of the language in the separation agreement. The court finds the defendant made a bona fide attempt to accomplish the lot split in the time allotted. The court notes the winter of 2002-2003 was unusually harsh, making outdoor work very difficult. The court finds the language used by the parties to be ambiguous and unclear. Therefore to effectuate the judgment and protect the integrity of the original orders the court orders the following.
The defendant is to complete the lot split by midnight May 31, 2004. This means he must have the A-2 survey completed, he must have obtained the approvals of all the necessary Boards and Commissions, and have filed the approved map with the Town Clerk.
If the lot split is not completed in its entirety by midnight on May 31, 2004, the defendant shall immediately transfer the property by deed to the plaintiff. The plaintiff shall not interfere with the defendant's attempt to complete the lot split. The court finds the plaintiff did not intentionally interfere with the defendant's attempt to effectuate the lot split. The court also finds due to the ambiguity in the language the defendant did not intentionally fail to transfer the property.
Accordingly the defendant's motion for contempt dated August 27, 2003 is denied. The plaintiff's motion for contempt dated September 16, 2003 is denied.
BRUNETTI, JUDGE.