Opinion
FA134024747S
02-15-2017
Melissa M. Thomson v. Todd S. Thomson
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael E. Shay, Judge Trial Referee.
The marriage of the parties was dissolved by decree of this court on August 4, 2015, following a lengthy trial. The court issued a Memorandum of Decision (#270.00) of even date therewith, and it later issued a Corrected Memorandum of Decision (#272.00) on August 28, 2015. The matter comes to this court by way of the plaintiff wife's Amended Motion to Open Judgment and Contempt, Postjudgment (#278.00) dated November 16, 2015. For his part, the defendant husband has filed a Motion for Contempt, Postjudgment (#277.00) dated October 9, 2015. Subsequent to the filing of the plaintiff's Amended Motion, the parties entered into a Stipulation to Open Judgment (#283.00) dated February 11, 2016, ostensibly resolving two outstanding issues, which was approved and made an order of the court (#285.00) on March 4, 2016. The plaintiff claims a breach of this Stipulation by the defendant, and she seeks relief by way of a further Motion for Contempt (#286.00) dated August 24, 2016, alleging inter alia a breach of the orders set forth in the Stipulation and a failure to pay the plaintiff her full share of the Deutsche Bank escrow. Each party seeks an award of attorneys fees.
At the time of the hearing, several issues were reported as moot. No arrearage having accrued, and payment having been made on a regular basis, the plaintiff chose not to pursue the issue of the timing of alimony and child support payments (TR 10/20/2016 @ p. 120). In addition, the parties represented that the issues relating to the transfer of the Yellowstone Club Membership and bill, as well as the outstanding bill for Propane had been resolved. (TR 10/20/2016 @ p. 34.) The defendant filed a Motion to Open the Record (#287.00) dated October 27, 2016. The court granted same and permitted the defendant to introduce additional evidence (Exhibits #14 and #22) as to his contribution to the Citibank overdraft, and the plaintiff conceded that the defendant had paid his share. That issue is now moot.
The matter was heard over the course of two days, including final argument on January 12, 2017. Subsequent to final argument, the court gave counsel an additional two weeks to update and file their respective Affidavits of Attorneys Fees, and the evidence closed on January 26, 2017.
GENERAL FINDINGS
The court hereby makes the following findings of law:
1. That a finding of contempt must be based upon a willful failure to comply with a clear and unequivocal order of the court. Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001); that " a judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper hearing." Kelly v. Kelly, 54 Conn.App. 50, 60, 732 A.2d 808 (1999); that " a finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony." Dickinson v. Dickinson, 143 Conn.App. 184, 190, 68 A.3d 182 (2013); and that indirect civil contempt " should be proven by clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 319, 105 A.3d 887 (2015).
2. That " where a person is found in contempt of an order of the Superior Court . . . the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation; " and that " if any such person is found not in contempt of such order, the court may award a reasonable attorneys fee to such person." General Statutes § 46b-87.
3. That, pursuant to General Statutes § 46b-62, where there is a breach of a court order, but no finding of contempt, it is within the discretion of the court to award reasonable attorneys fees, so long as a party against whom they are assessed is given an opportunity to challenge the reasonableness of the fees. Dobozy v. Dobozy, 241 Conn. 490, 499-500, 697 A.2d 1117, (1997); Sardilli v. Sardilli, 16 Conn.App. 114, 546 A.2d 926 (1988); Nelson v. Nelson, 13 Conn.App. 355, 536 A.2d 985 (1988) .
4. That " when a court is presented with a claim for attorneys fees, the proponent must present to the court at the time of trial or, in the case of a default judgment, at the hearing in damages, a statement of the fees requested and a description of the services rendered, " to which the court " may apply its knowledge and experience in determining the reasonableness of the fees requested." Smith v. Snyder, 267 Conn. 456, 479-80, 839 A.2d 589 (2004).
5. That an award of reasonable attorneys fees is within the sound discretion of the court; and that in making such a determination, the court shall take into account the financial circumstances of the parties, including previous financial orders and awards. General Statutes § 46b-82; Hornung v. Hornung, 323 Conn. 144, 168-81, 146 A.3d 912 (2016).
6. That " the weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court." Stearns v. Stearns, 4 Conn.App. 323, 327, 494 A.2d 595 (1985); Schoenborn v. Schoenborn, 144 Conn.App. 846, 851, 74 A.3d 482 (2013).
SPECIFIC FINDINGS
The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes § § 46b-62, 46b-81, and 46b-87, hereby makes the following findings:
1. AS TO THE LIFE INSURANCE TRUST
That the plaintiff was the Trustee of a certain life insurance trust entitled " Todd Thomson Life Insurance Trust" established by the defendant; that pursuant to Paragraph 8 of the ORDER at page 19 of the Memorandum of Decision, the plaintiff as Trustee was ordered to decant a certain life insurance policy from said trust and to transfer it to the defendant; that the wife failed and neglected to comply with said order for approximately one year (Exhibit #21); that said order was clear and unequivocal; that the effect of said order was ultimately to inure to her benefit, in that it would be maintained by the defendant as security for his financial obligations to the plaintiff and their children; that during said time, in good faith, the defendant offered a proposal to effectuate the disposition of said policy (Exhibit #20); that the parties have reached an agreement regarding same and have resolved their differences and the issue is moot; that the delay in effectuating the order of the court was due primarily to the plaintiff's failure to act; that while the plaintiff's inaction amounted to a breach of the court order, the court does not find her in contempt, nor does the court find the defendant in contempt.
2. AS TO THE ROWAYTON PROPERTY
That pursuant to Paragraph 9, subsection A at page 20 of the Memorandum of Decision, the defendant was ordered to transfer his interest in the jointly-owned real property at 18 Yarmouth Road, Rowayton, Connecticut, by means of a fully-executed Quit Claim Deed, within thirty days from the date of the Memorandum of Decision (August 4, 2015); that the order was clear and unequivocal; that counsel of the defendant prepared a Quit Claim Deed (Exhibit #13) which the defendant executed on October 9, 2016; that defendant's counsel delivered said deed to plaintiff on or after October 27, 2016; that there is no clear and convincing credible evidence that any delay or failure in the execution of and timely delivery of the deed was due to the willful refusal or neglect of the defendant; that any breach was minimal and not detrimental to the plaintiff (TR 1020/2016 @ p. 69); and that therefore contempt does not lie.
3. AS TO THE CORDIA BANKCORP STOCK
That Section 10.G.2 at page 25 of the Memorandum of Decision dated August 4, 2015, divided the Cordia Bankcorp stock 30% to the defendant and 70% to the plaintiff, said division to take place within 30 days following the date of said Memorandum of Decision; that the order of the court was clear and unequivocal; that the transfer was ultimately made on October 18, 2015 (Exhibit #2); that there is no clear and convincing credible evidence that any delay or failure in the execution and timely delivery of the deed was due to the willful refusal or neglect of the defendant; that any breach was minimal and not detrimental to the plaintiff; that contempt does not lie; and that there is insufficient good cause to open the judgment.
4. AS TO THE DEUTSCHE BANK ESCROW RE CABO PROPERTY
That Section 10.A at page 26 of the Memorandum of Decision dated August 4, 2015, provides that within two weeks from the date thereof, from the proceeds from the sale of the first Cabo condominium, then being held in escrow at Deutsche Bank, amounting to in excess of $1,000,000.00, were to be paid, the then current balance of the home equity line secured by the premises at 18 Yarmouth Road, Rowayton, in addition to " any outstanding real estate taxes thereon; " that order was unspecific as to the date to be used to determine the balance of the outstanding real estate taxes; that prior to said distribution there were outstanding real estate taxes in the amount of $32,018.61, which sum was advanced by Citibank under the terms of the first mortgage on or after June 5, 2015 (Exhibit #3); that the defendant refused to agree to the disbursement from the escrow of any real estate taxes in excess of $26,682.19; that the plaintiff agreed to the defendant's terms in order that the disbursement be made; that the disbursement from the escrow was made on October 21, 2015 (Exhibit #4); that Citibank added the sum of $2,668.21 per month to the mortgage payment commencing August 15, 2015; that the plaintiff made two payments to Citi in the amount of $2,668.21 each (TR 10/20/2015 @ p. 90); that the defendant was not immediately aware that the plaintiff had made these payments; that said payments should have been paid from the escrow account on October 21, 2015; that on or about November 16, 2015, the defendant reimbursed the plaintiff the sum of $2,668.21 (Exhibit #15) after he learned of the plaintiff's payments; that there is no clear and convincing credible evidence that any delay or failure to pay was due to the willful refusal or neglect of the defendant; and that contempt does not lie.
5. AS TO THE $160,000.00 ESCROW
That Section 10D. of the Memorandum of Decision dated August 4, 2015, as corrected on August 28, 2015, provides that upon the sale of 93 Lower Cedarview Drive, Big Sky, Montana, that the $160,000.00 escrow would be divided by the parties 70% to the plaintiff and 30% to the defendant; that the property sold on or about July 18, 2016, and the escrow in the amount of $160,010.00 became available for disbursement; that the plaintiff's share thereof is $112,007.00; that the order was clear and unequivocal; that on or about October 12, 2016 the defendant paid to the plaintiff the sum $46,492.00 (Exhibit #11), which represented the plaintiff's share in the amount of $112,007.00 less certain sums determined by the defendant as proposed offsets (Exhibit #12); that one such sum in the amount of $2,647.00 represented the plaintiff's share of accounting services to divide the remaining tax loss carryforward (Exhibit #17); that the court finds that to be a legitimate offset (TR 10/20/2016 @ pp. 152-53); that the defendant had a good faith but mistaken belief that the plaintiff had agreed to the all of the proposed offsets which he claimed were in accordance with an established pattern (TR 10/20/2016 @ p. 146-50); that although the defendant is in breach of the court order, there is no clear and convincing credible evidence that any delay or failure to pay was due to the willful refusal or neglect of the defendant; and that it is equitable and appropriate that the defendant pay to the plaintiff the sum of $62,868.00 ($112,007.00 minus $46,492.00 minus $2,647.00) together with simple interest at the rate of 6% per annum on the balance due and owing from July 18, 2016 to and including the date of payment in full.
6. AS TO THE INCOME FROM YELLOWSTONE RENTALS
That Section 9.0 of the Memorandum of Decision dated August 4, 2015, provides in relevant part that, while both properties remain unsold, any net rental payments received for either property are to be maintained in a joint account, and that each party is entitled to withdraw up to 50% of the balance no more frequently than once a month to be applied toward the carrying expenses for the property for which they have exclusive possession; that upon the sale of the last of the properties, any balance is to be divided equally; that it was the intention of the court that this provision apply prospectively; that prior to date of the Memorandum of Decision, the rental account had accrued the sum of $19,950.00 for total of three rentals between June 29, 2015, and August 2, 2015 (Exhibits #5, #6, and #7); that prior to August 4, 2015, said monies had been used by the defendant to help offset carrying charges for the properties and other monthly family expenses (TR 10/20/2016 @ pp. 125-27); that the defendant reimbursed the plaintiff for one-half of the net rental income for 93 Lower Cedarview for the period July 31, 2015 to August 2, 2015 (TR 10/20/16 @ pp. 32-33 and p. 69) in the amount of $1,925.00; that there is no clear and convincing credible evidence of any willful breach of or refusal to comply with the order of the court by the defendant; and that therefore contempt does not lie.
6. AS TO THE CITIBANK INVESTOR ACCOUNTS
That Section 10.G.3 at page 25 of the Memorandum of Decision dated August 4, 2015, divided the two Citibank Investor Accounts (#xxx5768 and #xxx6000) 25% to the defendant and 75% to the plaintiff; that subsequent thereto, on February 11, 2016, the parties entered into a Stipulation to Open the Judgment (#283.00) for purposes of modifying the mechanics of the distribution; that the Stipulation (Exhibit #8) was approved and made an order of the court on March 14, 2016; that, in brief, the order provided that in lieu of a division of the Citi Investor Accounts as set forth in the Memorandum of Decision, the defendant would retain full title to the Investor Accounts in return for a cash payment to the plaintiff representing the value of her share of said assets; that the plaintiff's share was to be made in two instalments; that the first installment in the amount of $45,529.67 was paid in full; that the second installment in the amount of $295,914.33 was to be made by the husband from his share of the proceeds from the sale of the premises at 93 Lower Cedarview, Big Sky, Montana " simultaneously" with his receipt of same; that there was a further provision that if payment was not made prior to January 1, 2017, it was the intention of the court that simple interest at the rate of 6% per annum would run commencing on January 1, 2017 on the balance until paid; that said property was sold on July 18, 2016; that payment in full of the balance was made by the defendant on September 12, 2016 (TR 10/20/2016 @ pp. 56-58 and 183); that any delay or failure in the execution of and timely delivery of the funds was not due to the willful refusal or neglect of the defendant; that any breach was minimal and not detrimental to the plaintiff; and that therefore contempt does not lie.
8. ATTORNEYS FEES
That this court has given consideration to the fact that given the volume and complexity of the marital assets to be equitably distributed herein, compliance with the court's order couldprove difficult to implement by the parties when based on a strict timetable; that effective communication between the parties remains problematic; that the defendant was not in strict compliance with the orders of the court; that the plaintiff herself has failed to fully comply with the order of the court, in particular with regard to the insurance trust; that by and large, the defendant has made good faith efforts to comply with the various portions of the court order (Exhibit #2); that both parties have sufficient assets to pay their own attorneys fees, particularly in light of the financial orders of the court; that in any event, an award of attorneys fees should be reasonable and in proportion to the situation; that under all the circumstances, the court does not find that an award of such fees to either party is appropriate; and that the court has fashioned appropriate relief under all the circumstances.
ORDERS FOR THE FOREGOING REASONS IT IS HEREBY ORDERED THAT
Plaintiff's Motion for Amended Motion to Open Judgment and Contempt (#278.00) dated November 16, 2015, is HEREBY DENIED.
The defendant's Motion for Contempt (#277.00) dated October 9, 2015, is HEREBY DENIED.
The plaintiff's Motion for Contempt (#286.00) dated August 24, 2016, is HEREBY DENIED. However, as a result of the defendant's breach regarding the Deutsche Bank escrow, within thirty (60) days from the date hereof, the defendant shall pay to the plaintiff the sum of $62,868.00, together with simple interest thereon at the rate of 6% per annum commencing July 18, 2016 until the balance due shall be paid in full.