Opinion
FSTFA144028560S
09-16-2016
Hilda Streitz v. Paul Streitz
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT/APPELLEE'S MOTION TO TERMINATE STAY (#125) DEFENDANT/APPELLEE'S MOTION FOR ATTORNEY FEES (#122)
Irene P. Jacobs, J.
Following a four-day trial, the parties' marriage was dissolved by this court's December 22, 2015 Memorandum of Decision. The parties' only substantial shared asset was their marital residence. The court's memorandum of decision ordered the parties to list the marital home for sale immediately. It also ordered the plaintiff/appellant to vacate the marital home by January 15, 2016 and to pay the mortgage until the time of the sale.
On January 11, 2016, the plaintiff/appellant took the present appeal, and an automatic stay was entered. The defendant/appellee moved to partially terminate the automatic stay as it applied to the orders concerning the marital home, and filed a motion for attorney fees. On May 31, 2016, the court heard testimony and argument on the defendant/appellee's two motions. Both parties were represented by counsel and testified. Both parties submitted financial affidavits.
The defendant/appellee testified as to his current difficult financial situation and health challenges. He testified that since the time of the trial, he has had two surgeries, his salary from his part-time job has decreased, and his attorneys fees have increased. He testified that he has been living in transient housing. He testified that he has $3,000.00 in a savings account and lives on his social security benefits, his pension, and his salary from part-time employment at a gym. At the time of the trial, according to his financial affidavit, the defendant/appellee's net weekly income was $1,112.00 [annual income of $57,824.00]. His current financial affidavit indicates a net weekly income of $936.00 [annual income of $48,672.00]. He testified that he is unable to afford counsel to defend the appeal. He testified that it would result in extreme financial hardship if the house were not sold.
The plaintiff/appellant has continued to live in the marital home and receives rental income from a boarder in the home. She has paid the mortgage on the marital home since 2014. At the time of trial, the plaintiff's net weekly income, as disclosed on her financial affidavit, was $1,476.38 [$76,771.76 annual income]. The plaintiff/appellant's current financial affidavit indicates a net weekly income of $1,072.43 [annual income of $55,766.36]. She has $4,800.00 in two checking accounts and current balances or values in IRA and 401K accounts totaling $218,834.75. She testified that if the marital home were to be sold, she would have no other place to live.
The original purpose of the court's orders concerning the marital home was to equitably distribute the parties' sole substantial shared asset and to provide both parties with the means to secure adequate housing. At the time of trial, the plaintiff/appellant's financial situation was somewhat better than that of the defendant/appellee. The disparity between the two parties' financial situations and residences remains. The credible evidence presented at the hearing of the motions indicates that the plaintiff/appellant is able to afford to continue paying the mortgage.
Stays of execution in family matters are governed by Connecticut Practice Book § 61-11(c) which sets forth 6 factors for the court to consider in making its determination. The court has taken judicial notice of the contents of the file, has considered the testimony of the parties, the parties' financial affidavits, and the evidence in light of the six factors set forth in Connecticut Practice Book § 61-11(c), and finds as follows:
1. The needs and interests of the parties, their children and any other persons affected by such order: Both parties need to have adequate housing. There are no other persons affected by the order. The parties have no minor children. The continuance of the stay as it pertains to the sale of the marital residence would undermine the original purpose of the pertinent part of the court's December 22, 2015 order.
2. The potential prejudice that may be caused to the parties, their children, and any other persons affected if a stay is entered not entered or terminated: The plaintiff/appellant's rights would not likely be adversely affected if the court granted the motion to terminate the stay, even in the event that she is successful on appeal. She is gainfully employed, she receives income from a boarder, and she has substantial assets. The rights of the defendant/appellee, on the other hand, would likely be adversely affected if the court continued a stay regarding the sale of the marital home in that it would impact his ability to secure adequate housing.
3. The need to preserve, pending appeal, the mosaic of orders established in the judgment: The mosaic of orders would not be affected if the court terminated the stay as to as to the sale of the marital residence.
4. The need to preserve the rights of the party taking the appeal to obtain effective relief if the appeal is successful:
In considering this factor, the court examines the likelihood of the plaintiff/appellant's success on appeal. Connecticut General Statutes § Section 46b-81(a) provides in relevant part: " At the time of entering a decree annuling or dissolving a marriage [t]he court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect." Connecticut General Statutes § 46b-81(a). The statute explicitly empowers the court to order the sale of the marital property. Furthermore, " trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings." (Internal quotation marks omitted.) Falkenstein v. Falkenstein, 84 Conn.App. 495 Id., at 503, 854 A.2d 749 (2004).
The standard of review on appeal is whether the trial court abused its discretion. Falkenstein v. Falkenstein, 84 Conn.App. 495, 502-03, 854 A.2d 749, cert. denied, 271 Conn. 928, 859 A.2d 581 (2004). " . . . [G]reat weight is given to the trial court's decision and every reasonable presumption is given in favor its correctness." (Internal quotation marks omitted.) Lappostato v. Terk, 143 Conn.App. 384, 401, 71 A.3d 552 (2013). Thus, in order to prevail on appeal, the plaintiff would have to show that the court abused its discretion when it concluded that the most equitable means of distributing the asset, the marital home, was to order it sold on the open market. In Martin v. Martin, 99 Conn.App. 145, 913 A.2d 451 (2007), the Connecticut Appellate Court affirmed a trial court's order to sell the marital home. This court considers the likelihood that the plaintiff/appellant will prevail in her appeal to be slight.
5. The effect, if any of the automatic orders under Connecticut Practice Book § 25-5 on any of the foregoing considerations: There is no effect of the automatic orders under Connecticut Practice Book § 25-5 on any of the foregoing considerations.
6. Any other factors affecting the equities of the parties: The court's reasons for its decision are more fully set forth above.
The defendant/appellee requests an award of $20,000.00 for attorneys fees in order for the defendant/appellee to defend the plaintiff/appellant's appeal. In its memorandum of decision, the court ordered each party to be responsible for his or her own attorneys fees. In granting the defendant/appellee's motion for termination of stay, it is the court's intention that the defendant/appellee have the ability to arrange to pay counsel to defend the appeal.
The defendant/appellee also requests that court address his claims that the instant appeal has been brought solely for the purpose of delaying the effectuation of this court's orders. Pursuant to Connecticut Practice Book § 61-11(d), such an analysis would be appropriate if subsection (c) did not govern this case. Having determined that this case is governed by subsection (c) of Connecticut Practice Book § 61-11, the court declines the defendant/appellee's request to address said claims.
Orders
1. The defendant/appellee's motion to partially terminate automatic stay is hereby granted as to the marital home orders specifically contained in Property distribution, Paragraph a. of this court's December 22, 2015 Memorandum of Decision.
2. The husband's motion for counsel fees is hereby denied.