209 Conn.App. 604
Conn. App. Ct.2022Background
- Marriage dissolved (Feb 19, 2014); separation agreement (incorporated into judgment) required Roy Walzer to pay Carol Walzer $2,580,000 in installments secured by a mortgage on the former marital home (141 5 1/2 Mile Road, Goshen).
- Payment schedule included large 2014 lump disbursements and quarterly installments through 2024; plaintiff’s security was a mortgage lien on the house.
- Plaintiff moved for contempt in Jan. 2020 (supplemented Aug. 2020) alleging missed quarterly payments in 2020 and other arrears; parties stipulated at hearing that defendant owed roughly $112,000–$112,500.
- Stipulated facts: fair market value of the property ≈ $11,000,000; existing first mortgage ≈ $3,000,000; plaintiff’s lien balance ≈ $740,000; defendant obtained another ~$3,000,000 encumbrance; both mortgages in foreclosure; defendant previously listed the property at $13,900,000 and later marketed it himself.
- Defendant submitted a financial affidavit showing unencumbered real property (two parcels valued $600,000 and $550,000) and personal property (~$468,775, including art, rugs, antiques), but offered no evidence he was unable to pay.
- Trial court found the nonpayment wilful, held defendant in contempt, ordered him to cure arrears by Nov. 15, 2020, and required immediate listing of the former marital home with a licensed broker (broker-selection mechanism, broker-set list price, acceptance of offers within 5% of list price); appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether the contempt finding was proper (was nonpayment wilful?) | Walzer’s defaults were admitted; financial affidavit showed assets available; defendant offered no proof of inability to pay. | Defendant had insufficient liquid funds/income at the time; assets do not prove ability to finance or liquidate; no evidence of wilfulness. | Affirmed. Defendant conceded default and arrearage; affidavit showed significant liquidatable/financeable assets; burden on obligor to prove inability to pay. |
| 2. Whether ordering sale of the former marital home improperly modified the property division | The separation agreement secured the settlement with a mortgage on the home; ordering sale effectuates, not modifies, the judgment to protect plaintiff’s security. | No provision required sale; court’s order changed the final property division by forcing sale and inserting terms. | Affirmed. The agreement tied plaintiff’s interest to payment; sale was an effectuation/remedy to protect the judgment, within the court’s equitable contempt powers. |
| 3. Whether the court’s sale terms/process violated defendant’s due process rights | Sale terms were tailored to ensure timely payment and prevent further delay/overpricing; remedial orders were appropriate. | Court improperly inserted plaintiff into broker selection and pricing, mandated acceptance rules, and limited defendant’s property rights. | Affirmed. Terms were justified and appropriately tailored given defendant’s prior two‑year marketing delay, refusal to use a broker, and unreasonable listing price; no due process violation. |
Key Cases Cited
- Giordano v. Giordano, 203 Conn. App. 652 (Conn. App. 2021) (standards for civil contempt review and wilfulness).
- Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384 (Conn. 2010) (burden on contemnor to prove inability to pay).
- Kirwan v. Kirwan, 187 Conn. App. 375 (Conn. App. 2019) (inability-to-pay is a defense to contempt; obligor bears burden).
- Lawrence v. Cords, 165 Conn. App. 473 (Conn. App. 2016) (distinguishing modification of a judgment from orders that effectuate it; principles for construing postjudgment orders).
- Ciottone v. Ciottone, 154 Conn. App. 780 (Conn. App. 2015) (trial court’s equitable power to fashion remedial orders to vindicate judgments).
- Santoro v. Santoro, 70 Conn. App. 212 (Conn. App. 2002) (noncompliance can render strict adherence to decree impossible).
- Behrns v. Behrns, 124 Conn. App. 794 (Conn. App. 2010) (upholding restraints on encumbering assets to secure obligations).
- Scalora v. Scalora, 189 Conn. App. 703 (Conn. App. 2019) (party cannot complain on appeal about procedures or evidence they invited or failed to present below).