Opinion
No. FA-06-4024421 S
September 30, 2009
MEMORANDUM OF DECISION
This is a post-judgment proceeding.
At the outset, the plaintiff who has been the target of horrific abuse by the defendant, is found by the court to be intelligent, strong, resourceful and credible.
BACKGROUND
The abusive and contemptuous behavior by the defendant throughout these proceedings was set forth in the trial court's Memorandum of Decision dated July 2, 2008 (Simon, J.) (hereinafter, dissolution memo). Therein, the trial court made the following factual findings:
During the marriage the parties purchased 29 South Washington Avenue, Niantic Connecticut. Both signed the real estate contract. The wife testified that she paid the initial deposit of $1,000 and that the parties contributed $8,000 from marital assets for the balance of the initial deposit. The purchase price was $180,000. The wife withdrew $30,000 from her personal account, which represented a portion of the funds from the sale of her Cheshire property, to pay the balance of the deposit at the time of the purchase. The mortgage and deed are solely in her name. The wife testified that this was done because she wanted this property to be a place for her and the children. She sold her home after failing to convince the defendant to relocate to Cheshire, where she lived with the children, so as not to disrupt their lives. She had reluctantly moved to South Windsor hopeful that she could find a vacation home for her family. The defendant through counsel had an exhibit introduced that stated the only reason the home was in the wife's name was due to business liability reasons.
As stated previously, the defendant did not testify during trial due to a pending criminal matter. After the filing of the dissolution, the court, Solomon, J, entered orders pursuant to an agreement between the parties, allowing the defendant access and use of the Niantic property the weekend of March 2, 2007. On Monday morning, March 5th, the East Lyme police and fire departments were called to the property due to a structural fire. When the police arrived the defendant and his dogs were rescued from the roof of the first floor porch. The house was totally destroyed along with all of the wife's personal belongings and furniture which had been placed in storage after she sold her home and then moved to the summer cottage following its purchase. On May 10, 2007, after an investigation, the defendant was arrested on charges of Arson in the first degree and reckless endangerment in the first degree. With the assistance of family he posted a $550,000 bond.
The Niantic property is presently the subject of numerous lawsuits and claims as to who is the rightful recipient of the insurance claims. For the purposes of these proceedings the property was appraised by Francis J. Buckley III from Buckley Appraisal Services, Inc. He testified that as of February 16, 2007, the lot and house were valued at $380,000. As of March 14, 2008, the lot was valued at $181,000. There is a mortgage of $50,000 that the wife continues to pay. Although the wife's testimony concerning the purchase of the Niantic property was somewhat embellished, over all her testimony was credible.
Dissolution memo at 8-9.
The trial court's dissolution memo also made certain court orders which provide, in pertinent part:
1. Wife shall retain sole title and ownership to property at 29 South Washington Street, East Lyme, Connecticut, free from any claims of the husband. Wife shall be entitled to any and all proceeds from the pending insurance loss claim that may be made under the terms of the policy. The court also awards the wife all of the husband's interest in said policy, if any exists. Should husband receive any proceeds from the pending litigation brought against the carrier as to any and all claims that may be made under the policy, including husband's claim of bad faith, the same shall be deemed to be the property of the wife. This order is an assignment to the wife of any interest the husband may have in any litigation involving this property. Wife shall remain solely responsible for the taxes, insurance and currently existing mortgage encumbering referenced property.
4. Each party shall retain sole ownership of all personal property currently in their respective possessions except that wife shall also receive the following property currently at 96 Tumblebrook Drive, South Windsor, Connecticut:
Lennox china, 12 piece setting — value $2,000
Antique French armoire — value $5,000
Dining room table and six chairs — value $1,000
Two sewing machines — value $500
Diamond ring from first marriage — value $5,000
Teak table and bookcase — value $400
Turntable and album collection — value $900
If any of the above items are missing or have been destroyed, husband shall be responsible to wife for the listed value.
5. Husband shall pay wife the sum of $7,289.60 which represents the proceeds from the insurance claim the husband received for the wife's engagement ring.
10. Husband shall be solely responsible for the debt to Connecticut Veterinarian Center of West Hartford for treatment of the parties' dog Molly, in the amount of $7,000. Husband shall indemnify and hold the wife harmless therefrom.
12. Wife shall cooperate with husband to exercise his COBRA rights available through her work-related health care coverage. Any costs or premiums associated with same shall be the sole responsibility of the husband.
14. Husband shall be solely responsible for his legal fees and costs associated with this dissolution as well as other legal proceedings, including, but not limited to his businesses, all debts and creditors, former employees, criminal proceedings and foreclosures. Husband shall indemnify and hold wife harmless therefrom.
15. Pursuant to Connecticut General Statute § 46b-62, the husband shall pay the wife the sum of $90,000 towards her legal fees and costs.
16. To ensure the payments of the following specific obligations owed to the wife from the husband, (a) her personal property listed herein; (b) $7,289.60 for the engagement ring; and $90,000 in legal fees — pursuant to Connecticut General Statutes §§ 46b-81 and 46b-66a, title to 96 Tumblebrook Drive, South Windsor, Connecticut shall pass immediately to the wife solely. Wife shall immediately place property for sale using the appraisal submitted during trial to establish a fair market price. After payment of reasonable expenses associated with the sale of the property, mortgages and taxes, legal fees involved with the resolution of the pending foreclosure action, and payment of priority liens, including sums owed to her from these orders, the wife shall pay to the husband the remaining amounts. Husband shall vacate the premises at 96 Tumblebrook Drive, South Windsor, within thirty days of this decision.
Dissolution memo at 15-19.
Thereafter, the defendant filed an appeal and retained additional counsel to prosecute the appeal. The plaintiff filed a motion to terminate the automatic appellate stay, which after a hearing, the trial court, Simon, J., granted. See Memorandum of Decision on Motion to Terminate Stay Pending Appeal dated October 8, 2008 (Simon, J.) (hereinafter, termination memo).
The defendant filed a Motion for Review of the trial court's decision to terminate the appellate stay. By order dated January 29, 2009, the Appellate Court granted the motion for review but denied the relief requested therein.
Thereafter, the plaintiff filed several motions for contempt alleging that the defendant was disobeying the trial court's order to vacate the family home within thirty days of the order and noting that even though the automatic stay had been lifted, the defendant continued to reside at the family home.
Regarding the plaintiff's motion for contempt, the trial court, Epstein, J., entered the following order on June 16, 2009:
1. The Court finds that the July 2, 2008 judgment in this case, specifically paragraph 16, is clear, that the defendant willfully violated these orders and that the defendant is in contempt of court orders.
2. The defendant must vacate the marital home within two weeks of today.
3. The case is continued for compliance until July 7, 2009.
The compliance hearing was never held for the reasons that are set forth, infra.
On July 7, 2009, the Appellate Court affirmed the decision of the trial court. See Tyler v. Shenkman-Tyler, (A.C. 30812) 115 Conn.App. 521 (2009).
On July 17, 2009 the defendant filed a petition for certification for review of the Appellate Court's decision which is currently pending before the Supreme Court.
Additional Facts Adduced at the Hearing
The plaintiff filed several post-judgment motions. A hearing was held on those motions on September 8, 2009, at which both parties appeared and were represented by counsel. As noted, the plaintiff testified at the hearing, and the court finds her credible. The defendant invoked his rights against self-incrimination and did not testify. The court draws an adverse inference against the defendant; see Libutti v. United States, 102 F.3d 110, 121 (2d Cir. 1997); and makes the following findings of fact.
On July 7, 2009, the defendant, who was out on bond and subject to a full criminal protective order that he have no contact with the plaintiff, accosted her at her place of employment while wielding a gun. He threatened her life and forced her back into her car and made her drive both of them to the Windsor house where he imprisoned her. Over many hours, the defendant continued to threaten to kill her and take his own life, vowing not to vacate the house. The defendant claimed that the house was rigged with explosives and the plaintiff saw wires strung throughout the house. The plaintiff also had the presence of mind to notice that the house was still completely furnished with the defendant's belongings. Eventually, the plaintiff was able to escape and in the ensuing standoff, the house was burned to the ground and the plaintiff's car was destroyed.
The defendant was able to escape the fire and was placed under arrest. According to the representations of counsel, he is currently being held for trial without bond.
This court finds that under the automatic orders, the defendant was required to keep the South Windsor house insured and to keep up with the mortgage payments and taxes. The court further finds that the defendant willfully failed to comply with these orders.
THE MOTIONS CURRENTLY BEFORE THE COURT
As noted, the plaintiff, who was self-represented at the time, filed the following post-judgment motions, some of which overlap each other and make identical claims of contemptuous conduct and claims for relief. They may be summarized as follows:
Motions #272, #272.01 — Identical motions for contempt dated June 22, 2009, alleging that the defendant had disobeyed a court order to withdraw the following lawsuits: Shenkman-Tyler v. Central Mutual Insurance Company, CV08-5009740-S and Tyler v. Central Mutual Insurance Company and Nancy P. Tyler, CV07-4007115-S and pay costs, interest, and fees the Wife had incurred as a result of cases; return personal belongings and make payment per paragraph 12 of the court's order of 7/2/08.
Motions #274, #274.01 — Identical motions for contempt dated August 13, 2009, alleging that the defendant had disobeyed court orders to return property or pay ordered obligations, vacate residence to allow sale or pay attorneys fees, cooperate with payment of insurance on already destroyed property, and pay for health insurance.
Motion #275 — A motion for modification dated August 13, 2009, stating that the trial court issued an order dated July 2, 2009, directing the defendant to pay certain amounts or sign over a residence to allow it to be sold, and stating that the residence had been destroyed and that the plaintiff had incurred substantial additional charges as stated in an attached memorandum, and asking the court to enter a modification of the order to allow for reimbursements incurred since July 7, 2009.
Motion #276 — Plaintiff's motion for costs, asking for the costs and attorneys fees incurred in defense of the defendant's appeal of the judgment of dissolution.
Court's Decision on Motions #272, #272.01 The Plaintiff's Motions Regarding the Insurance Lawsuits.
As noted earlier, the defendant commenced several lawsuits directed at the insurance claims on the loss of the Niantic house. The plaintiff points to the orders in the dissolution memo that gave the plaintiff not only title to the Niantic property, but any and all interests in the lawsuits regarding the insurance claims to the property. Essentially, the plaintiff claims that the defendant is in contempt of these orders because he has not withdrawn the lawsuits. She claims that the defendant should pay the costs, interest and fees associated with the case. The plaintiff also asked the court to take judicial notice of the two files. In the alternative, the plaintiff asks that if this court does not think that the defendant is in contempt, she asks this court modify the trial court's order and order that those cases be withdrawn or dismissed.
The defendant's counsel argued that in these cases, the plaintiff has already filed a motion for summary judgment that was denied by the trial court, and that, essentially, the plaintiff is asking this court to overrule that decision.
This court has taken judicial notice of the files, both of which are still pending, and has reviewed them thoroughly. The files reveal that on November 11, 2008, the trial court, Peck J., denied the plaintiff's motion for summary judgment on the grounds that it was "Premature for the reasons stated in open court."
On June 26, 2009, the plaintiff filed a motion to dismiss and on July 22, 2009, she filed a supplemental motion to dismiss. Neither of those motions have been ruled on as of this writing.
It may be that under the trial court's orders, the defendant is no longer the real party in interest in those cases, especially in light of the Appellate Court's affirmation of the trial court's decision, but the court cannot grant the plaintiff's motion for contempt because the trial court's order did not place any affirmative duty on the defendant to withdraw those cases. Thus, the defendant has not violated any order in that regard. Furthermore, the court cannot grant the plaintiff's motion to modify because the order is a property order and once a judgment is entered, the court is without authority to make any further orders regarding property. See Bunche v. Bunche, 180 Conn. 285, 289 (1980).
2. Return of Personal Property
The court finds from the prior factual findings in this case, the testimony of the plaintiff, the adverse inference against the defendant, the length of time that has gone by since the termination of the stay, and from the e-mails from the defendant that were entered into evidence, that the defendant still retains possession and control over the items listed under paragraph 4 of the dissolution memo, that the orders are clear and that the defendant has wilfully refused to turn them over to the plaintiff. Therefore the court finds him in contempt.
The court further finds that the defendant has the ability to pay. This court notes that the trial court found that the defendant has a minimum earning capacity of $75,000 per year, and that he has always owned lucrative and profitable businesses and that the businesses had hundreds of thousands of dollars in equipment. See dissolution memo at 12. Moreover, the trial court noted that the defendant had the plaintiff deposed three times and had "rented hotel rooms and hired court reporters to pursue his own personal depositions, in addition to those completed by his attorneys, all of this as he claims to be without assets and in need of town assistance to pay his fuel bill." Dissolution memo at 13. The trial court also noted that the defendant, although still claiming to be unemployed and without assets "is able to retain new counsel to pursue his appeal." Termination memo at 3.
In addition, this court finds based on the evidence presented here that the defendant still retains a large amount of equipment and possessions, indeed, such an amount that it requires two warehouses, one of which is a 9,000 square foot warehouse, to hold them. Plus, it is clear to the court that the defendant has the assets to retain private counsel who continue to prosecute his civil cases in New London, defend him on contempt motions in family court, defend him in his criminal matters, and pursue a petition for certification to the Supreme Court. Therefore, the defendant is ordered to pay, immediately, the total value of the items listed in the dissolution memorandum, which is $14,800.00. If the defendant does not comply, interest will accrue to said sum at the rate of eight (8) percent per year. The court, as noted, also finds the defendant has the ability to pay.
In addition, and mindful of the defendant's defiant and contemptuous conduct throughout these proceedings, and the many chances given by the court to the defendant to comply with these orders, the court finds that it must impose more coercive measures against the defendant than before. See Papa v. New Haven Federation of Teachers, 186 Conn., 724, 737-38 (1982). Therefore, he is to be held in custody until he has purged himself by paying to the plaintiff the full sum of the aforementioned amounts, and he has signed any and all documents needed to effectuate the orders of the dissolution memo.
3. The COBRA Orders
The court also finds that the defendant has wilfully failed to comply with the court's orders to pay for his portion of the COBRA health benefits. The court further finds the amount that he owes is $4,180.60. The defendant is ordered to pay, within thirty (30) days of the issuance of this decision, the amount of $4,180.00. If the defendant does not comply, interest will accrue to said sum at the rate of eight (8) percent per year. The court finds the defendant has the ability to pay.
In addition, and mindful of the defendant's defiant and contemptuous conduct throughout these proceedings, and the many chances given by the court to the defendant to comply with these orders, the court finds that it must impose more coercive measures against the defendant than before. See Papa v. New Haven Federation of Teachers, supra. Therefore, he is to be held in custody until he has purged himself by paying to the plaintiff the full amount of the aforementioned amounts and he has signed any and all documents needed to effectuate the orders of the dissolution memo.
Court's Decision on Motions #274, #274.01
The court also finds that the defendant has wilfully failed to comply with the court's orders to pay to the wife the sum of $7,289.60 for the engagement ring. The court finds that the defendant has wilfully failed to pay that amount and he is ordered to pay it immediately. If the defendant does not comply, interest will accrue to said sum at the rate of eight (8) percent per year. The court finds the defendant has the ability to pay.
In addition, and mindful of the defendant's defiant and contemptuous conduct throughout these proceedings, and the many chances given by the court to the defendant to comply with these orders, the court finds that it must impose more coercive measures against the defendant than before. See id. Therefore, he is to be held in custody until he has purged himself by paying to the plaintiff the full amount of the aforementioned amount and he has signed any and all documents needed to effectuate the orders of the dissolution memo.
The court also finds that the defendant has wilfully failed to comply with the court's orders to pay the debt to the Connecticut Veterinarian Center in the amount of $7,000.00. The court finds that the defendant still owes that amount and he is ordered to pay it in full, immediately. If the defendant does not comply, interest will accrue to said sum at the rate of eight (8) percent per year. Again, the court finds that the defendant has the ability to pay.
In addition, and mindful of the defendant's defiant and contemptuous conduct throughout these proceedings, and the many chances given by the court to the defendant to comply with these orders, the court finds that it must impose more coercive measures against the defendant than before. See id. Therefore, he is to be held in custody until he has purged himself by paying to the plaintiff the full amount of the aforementioned amounts and he has signed any and all documents needed to effectuate the orders of the dissolution memo.
The court also finds that the defendant has wilfully failed to comply with the court's orders to pay the plaintiff's legal fees in the amount of $90,000.00. The court finds that the defendant still owes that amount and he is ordered to pay it in full, immediately. If the defendant does not comply, interest will accrue to said sum at the rate of eight (8) percent per year. The court finds the defendant has the ability to pay.
In addition, and mindful of the defendant's defiant and contemptuous conduct throughout these proceedings, and the many chances given by the court to the defendant to comply with these orders, the court finds that it must impose more coercive measures against the defendant than before. See id. Therefore, he is to be held in custody until he has purged himself by paying to the plaintiff the full amount of the aforementioned amounts and he has signed any and all documents needed to effectuate the orders of the dissolution memo.
Court's Decision on Motion #275
As noted, the court has found that the defendant wilfully failed to comply with the automatic orders concerning the insurance, mortgage and taxes on the South Windsor property. The court, therefore, finds the defendant in contempt and orders him to pay to the plaintiff $25,590.00 in clean-up expenses, and $31,082.00 for the back taxes. The defendant must pay these amounts in full, immediately. If the defendant does not comply, interest will accrue to said sum at the rate of eight (8) percent per year. Again, the court finds that the defendant has the ability to pay.
The court has not been presented, however, with sufficient evidence as to the costs and fees associated with the defendant's failure to make the mortgage payments so as to make a finding as to what the defendant should pay in that regard.
In addition, and mindful of the defendant's defiant and contemptuous conduct throughout these proceedings, and the many chances given by the court to the defendant to comply with these orders, the court finds that it must impose more coercive measures against the defendant than before. See id. Therefore, he is to be held in custody until he has purged himself by paying to the plaintiff the full amount of the aforementioned amounts and he has signed any and all documents needed to effectuate the orders of the dissolution memo.
Court's Decision on Motion #276
The plaintiff's motion asks for cost and attorneys fees to defend the appeal of the dissolution of judgment. See Mitchell v. Mitchell, 24 Conn.App. 343 (1991). This court after considering the relative financial positions of the parties and the criteria set forth in Connecticut General Statutes §§ 46b-62 and 46b-82, has determined that the defendant should pay the costs and fees associated with the plaintiff's defense of the judgment. Therefore, the defendant is ordered to pay to the plaintiff $5,000.00 for the attorneys fees and $608.62 in costs within thirty (30) days of the issuance of this decision.
SO ORDERED.