Opinion
FSTFA155014481S
01-11-2019
Alexander M. LEVY v. Alexis B. LEVY
UNPUBLISHED OPINION
OPINION
HELLER, J.
The plaintiff Alexander M. Levy and the defendant Alexis B. Levy were before the court on August 27, 2018 for a hearing on the plaintiff’s motion for contempt, postjudgment (# 186.00), and the defendant’s motion for order, postjudgment (# 187.00). The hearing concluded on September 17, 2018. The plaintiff was represented by counsel. The defendant represented herself. The court heard testimony from the parties, reviewed the exhibits admitted into evidence, and took judicial notice of the contents of the court file. The court reserved decision at the conclusion of the hearing.
I
The marriage of the parties was dissolved on June 21, 2018 after a multi-day trial (# 185.00). In its memorandum of decision (# 184.00), the court (Heller, J.) ordered that the marital residence located at 200 Drum Hill Road in Wilton, Connecticut (the Drum Hill Road property) be listed for sale within thirty days of the date of entry of the dissolution judgment. The parties were ordered to "cooperate in the sale of the Drum Hill Road property, with the intent of selling the property as quickly as possible." The court further ordered that "[t]he plaintiff shall have exclusive possession of the Drum Hill Road property until it is sold. The defendant shall vacate the Drum Hill Road property within ten days of the date of entry of the dissolution judgment. The plaintiff shall maintain the house in good condition, reasonable wear and tear excepted, and he shall use reasonable efforts to keep the house clean and orderly for showing to potential purchasers."
Primarily at issue in the motions before the court is the disposition of the parties’ personal property, including the furnishings and furniture in the Drum Hill Road property. In the June 21, 2018 memorandum of decision, the court ordered that "[e]ach party is awarded his or her own clothing, jewelry, and personal items such as photographs, books, and memorabilia. The parties shall equally divide the family photographs, and they shall share equally the expense of copying any photographs that are selected by both parties." The court further ordered that "[t]he plaintiff is awarded the items on his list with the exception of the couch from the great room and the round belt buckle mirror, which are awarded to the defendant. The parties shall divide all remaining household furniture and furnishings and other personal property to their mutual satisfaction on or before August 1, 2018. If the parties are not able to agree on the disposition of specific items, those items shall be sold at fair market value on or before November 1, 2018. All costs of sale and the net proceeds shall be shared equally between the parties." (Footnote added.)
The plaintiff provided a list of the personal property that he asked be awarded to him as an attachment to his proposed orders in connection with the dissolution trial.
In his motion for contempt, postjudgment, the plaintiff contends that "the defendant unilaterally and systematically stripped the marital residence of substantially all personal property, including, but not limited to, paintings, books, knick-knacks, artwork, photographs, furniture, wall sconces, fixtures, mirrors, and throw carpets. The defendant did so without discussing the division of property with plaintiff. The defendant upon information and belief, has also secreted various items in her bedroom." The plaintiff further alleges that "[w]hile removing items of personal property affixed walls, the defendant damaged the walls of the marital residence."
The plaintiff testified that the defendant had removed much of the personal property from the Drum Hill Road property, including items that had been awarded to him, within days of entry of the dissolution judgment. Although he demanded in writing that she return his belongings, the defendant did not respond.
The plaintiff claimed that the defendant had taken the two white chairs from the great room; the sapphire earrings that had been given to her by his father; the silver frame with the underwater photograph; two silver square table lamps; and the Salvatore Dali "Don Quixote" print. The plaintiff said that he was missing one-half of the parties’ china and the books that were located on bookshelves on the downstairs level of the Drum Hill Road property. He had not obtained his share of the parties’ wedding gifts that were still in storage at the home of the defendant’s parents.
The plaintiff believed that the defendant took or concealed other items that he cannot find in the Drum Hill Road property. He discovered the "Manhattan" movie poster print in the boxes of personal property that the defendant had packed to remove from the Drum Hill Road property. He indicated that the defendant had packed the parties’ photo albums and the children’s keepsake clothing in those boxes as well.
The plaintiff testified that he and the defendant had not reached an agreement on the disposition of the remaining personal property, including furniture and other artwork that had not been specifically awarded to one of them, as required by the dissolution judgment. He thought that they were going to do so, but the defendant just took whatever she wanted or packed it to remove from the Drum Hill Road property at a later date. The plaintiff testified that the defendant claimed that any memorabilia in the home belonged to her. He said, "So she’ll put a memory to every piece of art or piece of furniture or anything and just declare that it’s all hers." The plaintiff maintained that the defendant removed items that had been awarded to him and took other personal property that he did not agree she could retain.
Testimony of Alexander Levy, August 27, 2018 transcript at 18:9-11.
According to the plaintiff, the defendant did not vacate the Drum Hill Road property within ten days pursuant to the dissolution judgment. When she moved out a few days later, she left behind much of her clothing, toiletries, and office equipment and supplies. Her former bedroom and home office were filled with her belongings. She also left several boxes sealed with tape in the bedroom. The plaintiff said that he moved all of the defendant’s belongings that were located elsewhere in the house into her former bedroom since that time.
The plaintiff testified that the defendant damaged the Drum Hill Road property when she removed four sconces from the house. Two sconces were removed from the bathroom used by the parties’ daughters, leaving the bathroom with no light. The plaintiff said that he had to purchase replacement sconces and have them installed. One of the new sconces is not working because the electrical connection was damaged, presumably when the original sconce was removed. In addition, a five-foot mirror was removed from a wall in the master bedroom, damaging the wall by causing large holes in the process.
The plaintiff said that he knew that the defendant threw things from the loft on to the floor below. He mentioned that someone had eaten cherries in the house and left pits all over the place, although he noted that he did not know whether it was the defendant who did so. The plaintiff testified that he is spending a lot of time and effort to clean, paint, and repair the house to make it presentable for sale.
The plaintiff had the locks changed when the defendant moved out. He agreed to allow her to return in early July 2018 so that she could remove the rest of her property. He asked his sister to remain at the Drum Hill Road property while the defendant was there to make sure that she did not take anything or cause additional damage to the house. The plaintiff testified that he asked the defendant not to remove anything else from the walls.
The plaintiff described an altercation between the defendant and his sister that occurred when his sister arrived to monitor the defendant’s actions. He said that the defendant would not allow his sister to drive onto the driveway.
The defendant arrived on July 6 with friends to remove her remaining items. At approximately 4:30 p.m. that day, the plaintiff received a photograph from his sister of the defendant’s friend taking his Roger Moore "Shaken not Stirred" print off of the wall. He called the police to report that property belonging to him was being removed from the house. The police retrieved the print from the defendant’s friend’s car. After that, the plaintiff would not allow the defendant to return to the Drum Hill Road property.
The plaintiff testified that he had already provided the police with a copy of the list of personal property that was awarded to him in the dissolution judgment.
The defendant challenged the plaintiff’s testimony. She said that she did not have the items that the plaintiff claimed were missing. According to the defendant, they were somewhere in the house. She offered to help the plaintiff find everything if he let her in. The defendant denied removing the sapphire earrings. She said they were in the bedroom the last time that she was in the Drum Hill Road property. She said that she did not have the silver picture frame. She testified that she had a frame that looked just like it in her rental house in New Canaan, but it was not the silver frame from the house. She said that she took the two white chairs by agreement with the plaintiff. She did not have the Salvador Dali print. She saw it in the house on July 6. She did not know what the plaintiff was talking about regarding the wedding gifts.
The defendant testified that she removed much of her property within the initial ten-day period under the dissolution judgment, but that was not enough time to take the majority of her clothing, jewelry, and toiletries. She explained that the person who tried to take the Roger Moore print did not know that it had been awarded to the plaintiff. She said that she was not trying to take anything that belonged to plaintiff, and she did not remove any items that were not on her personal list.
The plaintiff testified that he wanted the defendant to remove her remaining belongings from the Drum Hill Road property. He was willing to have her come to the Drum Hill Road property with an off-duty police officer to make sure that she complied with the court’s orders. He also asked that the defendant return all of the items that he was awarded in the dissolution judgment.
The defendant questioned how the plaintiff would know that she was the person who took all the items that he said she had taken. She speculated that it could have been anyone who came into the house. She suggested that the missing items had been removed from the Drum Hill Road property when the house was being shown to prospective buyers.
II
"Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Internal quotation marks omitted.) Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992). "Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts ... Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt ..." (Emphasis in original; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). "In a civil contempt proceeding, the movant has the burden of establishing ... the existence of a court order and noncompliance with that order ..." (Internal quotation marks omitted.) Marshall v. Marshall, 151 Conn.App. 638, 651, 97 A.3d 1 (2014). Indirect civil contempt, as is alleged here, must be proven by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015).
"To constitute contempt, a party’s conduct must be wilful ... Noncompliance alone will not support a judgment of contempt." (Citations omitted; internal quotation marks omitted.) Oldani v. Oldani, 132 Conn.App. 609, 625-26, 34 A.3d 407 (2011), abrogated in part on other grounds by Brody v. Brody, supra, 315 Conn. at 316. "[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995).
The court finds that the plaintiff has met his burden of proving by clear and convincing evidence that the defendant had notice of the court’s June 21, 2018 memorandum of decision and the orders regarding the parties’ personal property contained therein, and that such orders are clear and unambiguous. The court further finds by clear and convincing evidence that the defendant has failed to comply with such orders. The court credits the plaintiff’s testimony regarding the defendant’s removal and concealment of items awarded to him in the dissolution judgment and other personal property that was to be divided between the parties. The court finds the defendant’s testimony not credible in material respects. Accordingly, the court finds that the defendant has wilfully violated the court’s orders relating to the disposition of the parties’ personal property, and it holds the defendant in contempt.
"In a civil contempt proceeding, judicial sanctions are generally either compensatory or coercive ... Nonetheless, a compensatory fine must be based upon evidence of complainant’s actual loss ... [1]t is well settled ... that [a] court may, in a proceeding for civil contempt, impose [a] remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damages he may have sustained by reason of the contumacious conduct of the offender ... [S]uch a compensatory fine must necessarily be limited to the actual damages suffered by the injured party as a result of the violation of [a court order]." (Citations omitted; internal quotation marks omitted.) Allen v. Allen, 134 Conn.App. 486, 500-01, 39 A.3d 1190 (2012).
In view of the damage caused by the defendant in removing four sconces and a large mirror from the Drum Hill Road property, and the costs that the plaintiff has incurred and will incur to repair the damage and prepare the house for sale, the court finds that such a compensatory fine is appropriate here. Accordingly, the defendant shall reimburse the plaintiff for the costs that he incurred or will incur to replace the four missing sconces, to repair the electrical connection so that all sconces are working, and to patch and repair the damage to the wall caused by the removal of the mirror in the master bedroom. The plaintiff shall advise the defendant of the total costs within ten days prior to the closing of the sale of the Drum Hill Road property. The defendant shall pay the compensatory fine from her equitable distribution share of the net proceeds from the sale of the Drum Hill Road property. See Allen v. Allen, supra, 134 Conn.App. at 500-01; Shaulson v. Shaulson, 125 Conn.App. 734, 736, 9 A.3d 782 (2010), cert. denied, 300 Conn. 912, 13 A.3d 1102 (2011).
In addition to payment of the compensatory fine ordered above, the defendant shall, at her sole expense, deliver the following items to the plaintiff on or before February 8, 2019: the two white chairs from the great room; the sapphire earrings; the silver frame with the underwater photograph; two silver square table lamps; the Salvatore Dali "Don Quixote" print; china in excess of one-half of the place settings; the books that were located on bookshelves on the downstairs level of the Drum Hill Road property; one-half of the parties’ wedding gifts stored at the home of her parents; any photo albums and keepsake clothing that she has removed from the Drum Hill Road property; and any other property that she removed from the Drum Hill Road property without the consent of the plaintiff.
III
The court turns next to the defendant’s motion for order, postjudgment, styled as "defendant’s emergency motion to retrieve personal items from marital residence." The defendant seeks an order requiring the plaintiff to give her immediate access to the Drum Hill Road property so that she can remove her remaining personal property from the house. She asks for up to three full days to pack and/or move items from Drum Hill Road property. The plaintiff appears to have no objection, at least in principle, to the defendant’s motion, provided that she does not remove anything belonging to him and an off-duty police officer is present, at the defendant’s sole expense, while she is in the house.
The defendant asks that her access to the Drum Hill Road property take into consideration her parenting time and her work schedule. In her motion, she states that she should not be expected to pack and move during her parenting time or on days that she is scheduled to work.
The court agrees that the defendant must have an opportunity to remove the rest of her belongings from the Drum Hill Road property. This does not, however, mean that the defendant can simply take whatever else she wants from the property, including items that belong to the plaintiff or which the plaintiff would also like to keep. As to the latter items, the parties have yet to "divide all remaining household furniture and furnishings and other personal property to their mutual satisfaction," notwithstanding the court’s order that this task be accomplished on or before August 1, 2018.
Therefore, the plaintiff and the defendant shall schedule a mutually convenient date on or before February 8, 2019 for the defendant to return to the Drum Hill Road property to finish packing her personal property. The defendant shall be accompanied by an off-duty police officer from the Wilton police department, at her sole expense. She may also bring one other person with her to help her pack her belongings. The plaintiff shall permit the defendant to spend up to six uninterrupted hours in the house on that date, provided that the off-duty police officer is present at all times. If the defendant is able to remove her remaining personal property at that time, she shall do so. Otherwise, the parties shall schedule a mutually convenient date thereafter for the defendant to remove her remaining personal property from the Drum Hill Road property.
Prior to the date on which the defendant is to return to the Drum Hill Road property to finish packing her personal property, the plaintiff may inspect and examine all items that the defendant previously packed for removal from the house. The plaintiff may open all boxes and other containers, irrespective of whether they are sealed, to determine whether they contain any property belonging to him or any property that he has not agreed the defendant may take from the Drum Hill Road property, such as the parties’ china, books, photo albums, and keepsake clothing that had been worn by the children. The plaintiff may remove any items that are in dispute from the packaging and retain them until the parties have discussed the disposition of such items. If the parties are unable to reach agreement on the disposition of specific items, the items shall be sold in accordance with the dissolution judgment.
IV
The plaintiff seeks an award of attorneys fees pursuant to General Statutes § 46b-87 for prosecuting the motion for contempt, postjudgment. General Statutes § 46b-87 provides in pertinent part that "[w]hen any person is found in contempt of an order of the Superior Court entered under section 46h-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person." General Statutes § 46b-87. "Once a contempt has been found, § 46b-87 establishes a trial court’s power to sanction a noncomplying party through the award of attorneys fees ... Pursuant to § 46b-87, that sanction may be imposed without balancing the parties’ respective financial abilities." Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997).
The plaintiff’s counsel submitted an affidavit of attorneys fees on September 17, 2018 reflecting attorneys fees in the amount of $ 5, 110. Her hourly rate is $ 325 per hour. The hourly rates of other professionals at the firm of Ferro, Battey & MacNamara, LLC who provided services to the plaintiff on this matter are $ 475 per hour and $ 195 per hour.
The court finds that the hourly rates and the attorneys fees incurred by the plaintiff are reasonable. An award of attorneys fees pursuant to General Statutes § 46b-87 is appropriate here. The plaintiff is awarded attorneys fees in the amount of $ 5, 110.
V
The court has fully considered the applicable statutes, the relevant case law, the evidence, the demeanor and the credibility of the parties, the arguments of counsel and the self-represented defendant, and the contents of the court file judicially noticed in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.
1. The plaintiff’s motion for contempt, postjudgment (# 186.00) is hereby GRANTED. The defendant is found to be in contempt of the clear and unambiguous orders of the court. It is further ORDERED as follows:
(a) As a compensatory fine for contempt of the court’s orders, the defendant shall reimburse the plaintiff for the costs that he incurred or will incur to replace the four missing sconces, to repair the electrical connection so that all sconces are working, and to patch and repair the damage to the wall caused by the removal of the mirror in the master bedroom. The plaintiff shall advise the defendant of the total costs within ten days prior to the closing of the sale of the Drum Hill Road property. The defendant shall pay these costs from her equitable distribution share of the net proceeds from the sale of the Drum Hill Road property.
(b) The defendant shall, at her sole expense, deliver the following items to the plaintiff on or before February 8, 2019: the two white chairs from the great room; the sapphire earrings; the silver frame with the underwater photograph; two silver square table lamps; the Salvatore Dali "Don Quixote" print; china in excess of one-half of the place settings; the books that were located on bookshelves on the downstairs level of the Drum Hill Road property; one-half of the parties’ wedding gifts stored at the home of her parents; any photo albums and keepsake clothing that she has removed from the Drum Hill Road property; and any other property that she removed from the Drum Hill Road property without the consent of the plaintiff.
2. The defendant’s motion for order, postjudgment (# 187.00) is hereby GRANTED. It is further ORDERED as follows:
(a) The plaintiff and the defendant shall schedule a mutually convenient date on or before February 8, 2019 for the defendant to return to the Drum Hill Road property to finish packing her personal property. (b) The defendant shall be accompanied by an off-duty police officer from the Wilton police department, at her sole expense, when she returns to the Drum Hill Road property to finish packing her personal property. She may also bring one other person with her to help her pack her belongings. (c) The plaintiff shall permit the defendant to spend up to six uninterrupted hours in the house on that date, provided that the off-duty police officer is present at all times. (d) If the defendant is able to remove her remaining personal property at the time she returns to the Drum Hill Road property to complete her packing, she shall do so. Otherwise, the parties shall schedule a mutually convenient date thereafter for the defendant to remove her remaining personal property from the Drum Hill Road property. (e) Prior to the date on which the defendant is to return to the Drum Hill Road property to finish packing her personal property, the plaintiff may inspect and examine all items that the defendant previously packed for removal from the house. The plaintiff may open all boxes and other containers, irrespective of whether they are sealed, to determine whether they contain any property belonging to him or any property that he has not agreed the defendant may take from the Drum Hill Road property, such as the parties’ china, books, photo albums, and keepsake clothing that had been worn by the children. The plaintiff may remove any items that are in dispute from the packaging and retain them until the parties have discussed the disposition of such items. (f) If the parties are unable to reach agreement on the disposition of specific items, the items shall be sold in accordance with the dissolution judgment.
3. The plaintiff is awarded attorneys fees in the amount of $ 5, 110 pursuant to General Statutes § 46b-87. It is hereby ORDERED that the defendant shall pay the attorneys fees and costs awarded to the plaintiff, in the amount of $ 5, 110, on or before March 1, 2019.