The defendant, Corey Kupersmith, appeals from the judgment of the trial court denying his motion to vacate execution, injunction, exemption and other relief (motion to vacate) and granting an award of attorney’s fees to his former wife, the plaintiff, Tara Kupersmith. On appeal, the defendant claims that: (1) General Statutes §§ 52-350a and 52-350f prohibit a court from ordering a postjudgment property execution to enforce a family support judgment; (2) the court improperly lifted the temporary suspension it had imposed on implementation of the writ of execution because the 2004 dissolution judgment is void because it did not comply with the child support guidelines, was based upon an inaccurate accounting of the plaintiffs assets, and contained a contractual penalty for failure to pay child support in violation of public policy; and (3) the court abused its discretion in awarding the plaintiff attorney’s fees for defending the defendant’s motion to vacate.
The record reveals the following facts and procedural history. On June 4, 2004, the court rendered a judgment dissolving the parties’ marriage. In the judgment, the court incorporated by reference both a joint parenting plan relative to the parties’ four children and a separation agreement; both documents were signed by the parties and their respective counsel. The separation agreement provided, inter alia, that the defendant would
Many postjudgment motions were filed by both parties pertaining to compliance with the terms of their separation agreement and joint parenting plan. On July 5, 2007, the parties entered into a stipulation (2007 stipulation), pursuant to the plaintiff’s motion for contempt, in which they agreed that the defendant owed the plaintiff one million dollars in satisfaction of two provisions in their separation agreement. After the 2007 stipulation, the plaintiff filed multiple motions for orders and motions for contempt, claiming that the defendant had not complied with the terms of the separation agreement. On July 19, 2010, the plaintiff filed a motion to enjoin the defendant’s use of his assets, as she claimed that the defendant had significantly reduced his liquid assets since May, 2009, consistently avoided meeting his support obligations, and was nearly $200,000 in arrears for periodic support payments and payments for the children’s education. Pursuant to the plaintiffs motion, the court, Malone, J., issued an order enjoining the defendant from transferring, selling, pledging, placing a hen on, or encumbering (1) any assets received from the repayment of a loan he made to Christina Wilkenson,
Thereafter, the defendant filed a motion for order and a motion for modification, and the plaintiff filed two motions for order and a motion for contempt. On February 23, 2011, the parties entered into a stipulation (2011 stipulation) resolving their five outstanding motions. The 2011 stipulation provided that the defendant owed the plaintiff a total sum of $1,050,000, which included: $850,000 for child support arrearage through February, 2011; education expenses arrearage, shared children’s expenses arrearage and interest; attorney’s fees to prosecute those claims of unpaid obligations; and $200,000 in future education expenses for the period of March 1, 2011, to June 30, 2012. The terms of the 2011 stipulation further provided that “time is of the essence,” and it set forth a payment schedule, an interest rate for late payments, and a monetary incentive for the defendant to make timely all payments. In the 2011 stipulation, the defendant offered security for the $1,050,000 owed in the form of a pledge of assets from a hedge fund, a mortgage deed or judgment lien encumbering his Greenwich residence, continuation of the injunction granted by Judge Malone, and a mortgage deed or judgment hen encumbering his real property on Martha’s Vineyard.
On November 23, 2011, the plaintiff filed motions for contempt and order, claiming that the defendant had violated the payment terms of the 2011 stipulation. One week later, the court, pursuant to the plaintiffs motions, ordered a property execution in the amount of $300,000 in favor of the plaintiff. On December 15, 2011, the defendant filed a motion to vacate—the motion from which this appeal arises—in which he claimed that “the execution is grounded on a void or voidable
In response, the plaintiff filed an objection to the motion to vacate and sought reimbursement for the attorney’s fees she incurred defending the motion. On April 30, 2012, the court heard argument from both parties and testimony from the defendant with regard to the motion to vacate. At the conclusion of that hearing, the court stated that it was going to “suspend the execution of the writ of execution on a temporary basis until . . . the court rule[d] on th[e] jurisdictional [matter]” concerning its ability to issue a writ of execution in this case. The plaintiff then filed an amended affidavit of attorney’s fees, and the court gave the defendant one week to challenge the amount or reasonableness of the plaintiffs fee request. The defendant never filed a motion objecting to the reasonableness of the claimed
I
The defendant first claims that the court improperly denied his motion to vacate because a writ of execution is an improper remedy for enforcement of a child support order pursuant to the postjudgment procedures detailed in chapter 906 of the General Statutes. Specifically, the defendant claims that “execution is not available for enforcement in a family law proceeding” pursuant to the plain language of two statutes within chapter 906, §§ 52-350a
This case presents an issue of statutory construction, which is a “[question] of law, over which we exercise plenary review.” (Internal quotation marks omitted.) Gianetti v. Rutkin, 142 Conn. App. 641, 650, 70 A.3d 104 (2013). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the
“In construing two seemingly conflicting statutes, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... Accordingly, [i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both.” (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 32, 818 A.2d 37 (2003). “[I]n the absence of a construction that harmonizes the two, both statutes can be given effect only when they do not conflict.” State v. Tabone, 292 Conn. 417, 433, 973 A.2d 74 (2009). When two statutes conflict, however, “[i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . . Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or
We begin by setting forth the relevant statutory provisions. The statutes pertaining to postjudgment procedures are set forth in chapter 906 of the General Statutes. Section 52-350f, which became law in its current form as part of No. 83-581 of the 1983 Public Acts (P.A. 83-581), provides in relevant part that a property execution may be used to secure a “money judgment.” In P.A. 83-581, the legislature also promulgated § 52-350a, which defined “money judgment” as an “order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment . . .” and a “family support judgment” as “a judgment, order or decree of the Superior Court or a family support magistrate for payment of a legal obligation for support or alimony to a spouse, former spouse or child and includes any such order for periodic payments whether issued pendente lite or otherwise.” (Emphasis added.) General Statutes § 52-350a (13) and (7); P.A. 83-581.
The statutes governing family law are set forth in title 46b of the General Statutes. In 2003, § 46b-84 (a) was amended by No. 03-130 of the 2003 Public Acts to include the sentence: “Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in
Having determined, as directed by § l-2z, that § 46b-84 (a) is not plain and unambiguous because it facially conflicts with § 52-350a (7) and (13), we follow the further direction of § l-2z and look for interpretive guidance to the legislative history and circumstances surrounding the enactment of § 46b-84 (a), to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter. Because, pursuant to §§ 52-350aand 52-350f, the general language that seems to prohibit utilization of chapter 906 enforcement procedures for family support judgments was already the law when the legislature promulgated the 2003 amendment to § 46b-84 (a), which added the language allowing “[a]ny postjudgment procedure afforded by chapter 906 ... to secure the present and future financial interests of a party in connection with a final order for the periodic payment of child support,” we look to the intent of the legislature in promulgating the subsequent legislation related to the enforcement of final child support orders.
The language in question was added as an amendment to Senate Bill No. 859, 2003 Sess., and it was debated
Representative Robert M. Ward clarified that the intention of the amendment was to facilitate the payment of the support obligations of one who has defaulted, rather than to speculate about future obligations: “[T]he court has discretion. ... If an individual defaults on a payment, I agree with what Representative Fox indicates that it is appropriate, once you’ve defaulted on an order, that there be a right to secure . . . .” Id., pp. 3473-74. Representative Ward continued: “[I]f it’s a postjudgment procedure . . . you could lien for the entire amount, but the indication here is that’s only when somebody is defaulted . . . .” Id., p. 3474.
Representative Fox then addressed a hypothetical scenario posed by Representative Robert Farr, stating: “Can the person [who is owed money stemming from a defaulted payment of a dissolution judgment] go into court and seek a motion for contempt? I think the answer to that is yes. If, in fact, this [amendment]
The legislative history makes it clear that the amended language of § 46b-84 (a) was enacted with the intention that it would enable a party to address the default of a final order for child support, or alimony; see footnote 8 of this opinion; through utilization of the postjudgment procedures set forth in chapter 906. The intention behind the promulgation of § 46b-84 (a), therefore, clearly conflicts with the language in §§ 52-350a and 52-350f restricting family support judgments.
Following our established principles of statutory interpretation, we attempt to reconcile conflicting statutes in a manner that allows for their coexistence. See Rainforest Cafe, Inc. v. Dept. of Revenue Services., 293 Conn. 363, 377-78, 977 A.2d 650 (2009). The 2003 amendment to 46b-84 (a) was promulgated decades after the general restrictive language in §§ 52-350a and 52-350f was existing law. Also, the 2003 amendment is more specific. Number 03-130 of the 2003 Public Acts addressed a postjudgment collection of alimony or child support after a dissolution judgment, as does § 52-350a. Section 46b-84 (a), however, is within the specific title of the General Statutes reserved for an evolving compendium for family law, as opposed to § 52-350a, which governs the postjudgment procedures for all civil actions. Because § 46b-84 (a) is more specific and was promulgated later, we conclude that where the language of § 52-350a and § 46b-84 (a) conflicts, § 46b-84 (a) must prevail.
The foundation of the property execution in this case is the monetary terms of the 2011 stipulation judgment and, therefore, a sum certain.
The defendant next claims that the court improperly lifted the temporary suspension it placed on implementation of the plaintiffs writ of execution because the 2004 dissolution judgment was flawed. Specifically, the defendant argues that (1) the judgment deviated from the child support guidelines without providing justification for the deviation, (2) it was based upon an inaccurate accounting of the plaintiffs assets that did not include the $11,700,000 lump sum alimony payment that the plaintiff was awarded, and (3) the agreed upon language of the judgment contained a monetary penalty for failure to pay in violation of the public policy and the laws of Connecticut.
“The judgment rendered in an action for dissolution of a marriage is final and may not be opened or set
The defendant here does not argue that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake, but rather he argues that his collateral attack on the 2004 dissolution judgment is an exception to the aforementioned well established procedural precedent. Referring to our Supreme Court’s decision in Maturo v. Maturo, 296 Conn. 80, 92, 995 A.2d 1 (2010), the defendant argues that the court, in 2004, used an incorrect standard for computing the amount of support to award in a situation where the parties’ annual income exceeded the income range set forth in the schedule of basic child support obligations. We are not persuaded that the court used the improper standard,
Ill
The defendant next claims that the court abused its discretion in awarding the plaintiff a portion of the
“It is well established that we review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did. . . .
“[T]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorney’s fee from the loser.
“[A] litigant seeking an award of attorney’s fees for the bad faith conduct of the opposing party faces a high hurdle. ... To ensure . . . that fear of an award of attorney’s fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of [the] lower courts. . . . Whether a claim is colorable, for proposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. ... To determine whether the bad-faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example,
In this case, both the plaintiff and the defendant requested attorney’s fees with respect to the motion to vacate. The court found the following facts with regard to each party’s claim. “The [defendant] has offered no evidence of the amount of attorney’s fees claimed or incurred, and that under all the facts and circumstances, he has provided the court with no basis to make such an award. On the other hand, the [plaintiff] has provided the court with an amended affidavit of fees. The court gave the [defendant] ample opportunity to review and request a hearing. The court finds that a portion of the attorney’s fees incurred by the [plaintiff] are fair and reasonable under the circumstances, in large measure due to the [defendant's motion to vacate] which was so lacking in a reasonable basis in fact and law, so that the court draws the conclusion that it was interposed for-purposes of delay and was not made in good faith."
The court found generally both that the defendant’s motion was entirely without color and that he acted in bad faith, yet the court did not support that finding with factual specificity. Cf. Maris v. McGrath, 269 Conn. 834, 848, 850 A.2d 133 (2004); Richter v. Richter, supra, 137 Conn. App. 233-35. The sole factual finding on
The judgment is reversed only as to the award of attorney’s fees and the case is remanded with direction to vacate that award. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
In his statement of issues, the defendant also claims that the trial court abused its discretion by concluding that the writ of execution was constitutionally enforceable despite mathematical discrepancies on its face. The defendant does not, however, discuss this claim in his brief. “It is well settled that [w]e are not required to review claims that are inadequately briefed.” (Internal quotation marks omitted.) Nowacki v. Nowacki, 129 Conn. App. 157, 163, 20 A.3d 702 (2011). Accordingly, we do not review this claim.
The record does not reveal the nature of the creditor relationship between the defendant and Wilkenson.
The plaintiff also claimed that the 2011 stipulation was invalid because he was “suffering from several serious debilitating illnesses” and did not have the capacity to enter into the 2011 stipulation, his counsel at the time of the 2011 stipulation did not disclose to him pertinent aspects of his financial situation, the 2011 stipulation was inconsistent with the 2004 dissolution judgment, and the court did not properly consider the child support guidelines before entering orders pursuant to the 2011 stipulation. On appeal, the defendant does not advance these or any other arguments about the validity of the court’s judgment accepting the parties’ 2011 stipulation.
General Statutes § 52-350a, which defines the terms used in chapter 906, provides in relevant part: “(7) ‘Family support judgment’ means a judgment, order or decree of the Superior Court or a family support magistrate for payment of a legal obligation for support or alimony to a spouse, former spouse or child and includes any such order for periodic payments whether issued pendente lite or otherwise. . . .
“(13) ‘Money judgment’ means a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment. Money judgment includes any such money judgment of a small claims session of the Superior Court, any foreign money judgment filed with the Superior Court pursuant to the general statutes and in IV-D cases, overdue support in the amount of five hundred dollars or more accruing after the entry of an initial family support judgment. . . .”
General Statutes § 52-350f provides: “A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under section 52-352a, 52-352b, 52-352d or 52-361a or any other provision of the general statutes or federal law. The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorney’s fees allowed pursuant to section 52-400c.”
The defendant relies on dicta in Barber where this court stated in passing that, pursuant to § 52-350a (13), “most family support judgments” are exempt from § 52-350f. Barber v. Barber, supra, 114 Conn. App. 165. This court in Barber, however, limited its consideration to whether the trial court properly “conclud[ed]that a former spouse may not enforce a judgment incorporating a stipulated agreement for child support without introducing evidence of the arrearage allegedly outstanding and unpaid.” (Emphasis added.) Id., 165-66. Such is not the case here, nor is the holding in Barber relevant to any of the defendant’s claims on appeal.
We note that the language “or family support magistrate” was added to § 52-350a (7) in No. 96-268 of the 1996 Public Acts. This language does not affect our analysis, and we therefore conduct our analysis referencing the promulgation of § 52-350a (7) and (13) in P.A. 83-581.
Number 03-130 of the 2003 Public Acts contained similar language pertaining to the postjudgment procedures available in chapter 906 and the enforcement of alimony payments. It amended General Statutes § 46b-82 by adding subsection b, which provides: “Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of alimony.” General Statutes § 46b-82 (b).
We note that a “money judgment” for chapter 906 purposes must be a sum certain. Cooke v. Cooke, 99 Conn. App. 347, 351-52, 913 A.2d 480 (2007).
The subject of this appeal, the denial of the defendant’s motion to vacate, is based on the 2011 stipulation, which was an agreement by the parties, made with the assistance of counsel, with regard to the amount the defendant owed the plaintiff in delinquent payments from the 2004 dissolution judgment. The defendant now, after executing both the 2007 stipulation and the 2011 stipulation, argues that the 2004 settlement agreement contained an improper penalty clause rather than a liquidated damages clause.
The court found that the parties, in 2004, agreed to a “nontaxable default penalty,” just as the parties had in Dougan v. Dougan, 301 Conn. 361, 364, 21 A.3d 791 (2011). In Dougan, our Supreme Court held that the nontaxable default penalty was enforceable by judicial estoppel. The court’s rationale for that holding is wholly applicable to this case: “First, both the [defendant] and his attorney were aware of and understood the terms of the interest provision at the time that they presented the stipulated agreement to the court, represented to the court that the agreement was fair and reasonable and asked the court to incorporate the agreement into the judgment of dissolution. Second, by now asking that the court refuse to enforce the provision, the [defendant] is taking a position clearly inconsistent with his previous position. Third, if the [defendant] were allowed to ask the court to invalidate this particular provision of the agreement that entitles the [plaintiff] to a substantial sum of money as interest for the [defendant’s] failure to make a timely payment under the agreement, the [defendant] would derive an unfair advantage from this change of position.” Id., 374—75.
In its memorandum of decision, the trial court concluded that the 2004 dissolution judgment complied with the child support guidelines at the time,
The court also noted that the defendant did not submit a child support guidelines worksheet at the time of the dissolution. “[A] party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines and ... we will not review such a claim.” (Internal quotation marks omitted.) Gentile v. Carneiro, 107 Conn. App. 630, 655, 946 A.2d 871 (2008).
The plaintiff does not address this claim in her appellate brief.
“[T]he common law rule in Connecticut, also known as the American Rule, is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . One such statutory exception, codified at General Statutes § 46b-62, provides in relevant part that the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in [General Statutes §] 46b-82. Section 46b-82, in turn, permits the court to take into consideration such factors as the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes § 46b-81],
“We interpreted these statutory provisions in Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992), to mean that an award of attorney’s fees in a marital dissolution case is warranted only when at least one of two circumstances is present: (1) one party does not have ample liquid assets to pay for attorney’s fees; or (2) the failure to award attorney’s fees will undermine the court’s other financial orders. ... In the present case, the trial court made no finding that the plaintiff either lacked ample liquid assets to pay for attorney’s fees, or that failure to award attorney’s fees [would]
The standard definition of bad faith is the absence of good faith. Habetz v. Condon, 224 Conn. 231, 236-37, 618 A.2d 501 (1992).