KARIN LAWRENCE v. MANUEL CORDS
(AC 37323)
Appellate Court of Connecticut
May 17, 2016
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DiPentima, C. J., and Prescott and Mullins, Js.
Argued February 4—officially released May 17, 2016
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Gregory T. Nolan, with whom, on the brief, was Patsy M. Renzullo, for the appellant (defendant).
Regina M. Wexler, with whom, on the brief, were Mark H. Swerdloff and Ileen P. Swerdloff, for the appellee (plaintiff).
Opinion
PRESCOTT, J. In this marital dissolution action, the defendant, Manuel Cords, appeals from the trial court‘s postdissolution judgment in favor of the plaintiff, Karin Lawrence, finding the defendant in contempt and ordering him to pay the plaintiff $246,000 plus interest in several installments. On appeal, the defendant claims that the court improperly (1) terminated the automatic appellate stay of execution of a prior order of contempt and (2) modified the division of property pоstdissolution. We affirm the judgment of the trial court.
The following facts, as found in the record or as stated by this court in Lawrence v. Cords, 159 Conn. App. 194, 196–98, 122 A.3d 713 (2015) (Lawrence I), and procedural history are relevant to our consideration of the defendant‘s claims. “The marriage of the parties was dissolved on November 19, 2013. Pursuant to that judgment, the court, Gallagher, J., issued various orders regarding the parties’ marital property. With respect to their real property, the court ordered, inter alia:
“‘7. Upon payment of $246,000 by the defendant to the plaintiff as set forth herein, the plaintiff shall quitclaim all her right, title аnd interest in 61 [Phelps]1 Road [(property)] to the defendant. The defendant shall hold the plaintiff harmless on all notes and mortgages regarding the Colebrook properties.2
“‘8. The defendant shall pay to the plaintiff the sum of $246,000 within 60 days of notice of this decision. Should the defendant fail to pay the sum of $246,000 to the plaintiff in the time period allotted, the defendant shall take whatever steps necessary to remove the cloud on the title he caused to be placed in the name of Sibling Associates, and the parties shall immediatеly thereafter cause 61 Phelps Road to be placed on the market. The sales price will be determined by the real estate broker. Upon sale of the subject property, the proceeds shall be paid out as follows: payment in full of the Webster Bank mortgage; $246,000 plus interest on said sum at the legal rate to the plaintiff; remainder to the defendant. Said interest begins running sixty days from the date of this decision.’
“On January 27, 2014, the plaintiff filed a motion for contempt on the ground that the defendant had failed to comply with the abоve-referenced orders of the court. Specifically, she alleged that more than sixty days had passed since the date of the dissolution judgment, but that the defendant had not paid her the ordered sum of $246,000, nor had the defendant taken any steps to list the subject property for sale. She claimed that the defendant failed to hold her harmless for the mortgage on the
“The court, Gallagher, J., held a hearing on the plaintiff‘s motion for contempt on February 10, 2014, at which both parties testified. Following that testimony and oral argument by attorneys for both parties, the court ruled from the bench, finding the defendant in contempt because he did not pay the mortgage on the property or put the house on the market. . . . The court ordered that the house be put on the market within seven days and that the defendant pay the property taxes on the property. The court held: ‘Now, he has assets to pay her; he can either do that or he—he can do one of two things in seven days. He can either pay her the $246,000 plus the money that he owes on the mortgage payments that she made or he can start paying—he can put it on the market within seven days, and he can also pay the taxes that are owed and pay the monthly payments on the mortgage.’ The court also ordered the defendant to pay attorney‘s fees in the аmount of $800 for the plaintiff‘s attorney.” (Footnotes added.) Id.
The defendant appealed to this court from the court‘s finding of contempt, arguing that the court improperly modified the property distribution order by requiring him to pay the mortgage on the property and found him in contempt for not paying the mortgage. On August 11, 2015, this court held that the court‘s order effectuated, rather than modified, its dissolution order regarding the payment of the mortgage, but because the dissolution order had been ambiguous concerning the mortgage payment, the defendant‘s noncompliance was not wilful, and, thus, the court‘s finding of contempt was improper. Id., 200, 202.
While Lawrence I was pending before this court, on March 20, 2014, the plaintiff filed a second motion for contempt on the ground that the defendant continued to fail to pay the mortgage on the property and the property taxes. On July 21, 2014, the plaintiff also filed a motion to terminate the automatic stay of execution of the February 10, 2014 order that was in place as a result of the filing of the appeal in Lawrence I. The plaintiff alleged that the appeal in Lawrence I had been taken only for the purpose of delay, and, thus, the automatic stay of execution should be terminated.
On August 5 and 11, 2014, a hearing on the motions was held. After hearing testimony from both parties and the defendant‘s real estate broker, Marshall Cohen, the court, Trombley, J., issued an oral ruling from the bench on August 11, 2014. The court explicitly declined to terminate the automatic stay with regard to the February 10, 2014 order that the defendant pay the property taxes and attorney‘s fees. The court then found the defendant in contempt for failing to make the mortgage payments and for failing to pay the plaintiff for her share of the property or to put the property on the market. The court ordered the defendant “to reimburse the [plaintiff] $16,783.68, which is the mortgage [that] she paid . . . and [to] make monthly payments, commencing with the September payment, of the principal and interest to Webster Bank [the mortgager] until the [property] is sold or until the [plaintiff] is paid her $246,000 plus interest.
“Second, the [defendant] shall make the $246,000 payment to the [plaintiff] in installments, each to include the [10] percent accumulated intеrest. First installment of
I
The defendant first claims that the court improperly terminated the automatic stay of execution of the February 10, 2014 order that was triggered, pursuant to
If the defendant here believed that the effect of the court‘s ruling was a termination of the automatic stay of execution, he was obligated to file a motion for review. Having failed to do so, he is precluded now from raising this issue on direct аppeal. Accordingly, we decline to review the claim.
The defendant also claims that the court improperly modified postdissolution the property distribution order. Specifically, he argues that the court improperly reallocated the property distribution by ordering the defendant to pay the plaintiff $246,000 for her share in the property from his personal assets, rather than from the proceeds from the sale of the property. The plaintiff responds that the court‘s order did not modify the dissolution judgment but effeсtuated it. We agree with the plaintiff that the court‘s order properly effectuated the property distribution of the judgment of dissolution.
The following additional facts are relevant to this claim. The relevant portions of the judgment of dissolution provide that:
“3. The plaintiff‘s interest in [her mutual bonds and trusts] is hers and hers alone.
“4. The defendant‘s interest in Sibling Associates [a limited partnership that he entered into with his siblings] is his and his alone.
“5. The plaintiff‘s retirement account and all bank accounts in her name are hers and hers alone.
“6. The defendant‘s retirement account and all bank accounts in his name are his and his alone.
“7. Upon payment of $246,000 by the defendant to the plaintiff as set forth herein, the plaintiff shall quitclaim all her right, title and interest in [the property] to the defendant. The defendant shall hold the plaintiff harmless on all notes and mortgages regarding the Colebrook properties.
“8. The defendant shall pay to the plaintiff the sum of $246,000 within 60 days of notice of this decision. Should the defendant fail to pay the sum of $246,000 to the plaintiff in the time period allotted, the defendant shall takе whatever steps necessary to remove the cloud on the title he caused to be placed in the name of Sibling Associates, and the parties shall immediately thereafter cause 61 Phelps Road to be placed on the market. The sales price will be determined by the real estate broker. Upon sale of the subject property, the proceeds shall be paid out as follows: payment in full of the Webster Bank mortgage; $246,000 plus interest on said sum at the legal rate to the plaintiff; remainder to the defendant. Said interest begins running sixty days from the date of this decision.”
During the hearing on the second motion for con-tempt, the court found that the defendant had not paid the plaintiff the $246,000 owed to her pursuant to paragraphs 7 and 8 of the dissolution judgment but that he had the assets to do so. The court stated: “Does [the defendant] have assets or the wherewithal to pay the $246,000. You bet. He‘s got $217,500 equity in the very real estate that‘s being marketed. He‘s got $120,000 in a stock account. . . . Of his $404,000 in liability, [$]363,000 is listed to . . . Cords and Sibling Associates.” The court also found that the defendant hаd not placed the property on the market and noted that the defendant had gone out of his way to make the property unmarketable by drafting a listing agreement6 that included a listing price that was more than the court appraised price and an eleven page addendum, detailing every potential defect in the
“[O]ur statutes give the court the authority to dispose of and to distribute the marital estate in a dissolution proceeding. See
“It is equally well settled . . . that . . . . [t]he court‘s authority to transfer property appurtenant to a dissolution proceeding rests on
“Although the court does not have the authority to modify a property assignment,8 a court, after distributing
“If a party‘s motion can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation. . . . Similarly, when determining whether the new order is a modification, we examine the practical effect of the ruling on the original order.” (Citation omitted; internal quotation marks omitted.) Roos v. Roos, supra, 84 Conn. App. 422-23.
“In order to determine the practical effect of the court‘s order on the original judgment, we must examine thе terms of the original judgment as well as the subsequent order. [T]he construction of [an order or] judgment is a question of law for the court . . . [and] our review . . . is plenary. As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The [order or] judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Schneider v. Schneider, 161 Conn. App. 1, 7, 127 A.3d 298 (2015).
The defendant argues that the dissolution judgment granted him the choice between paying the plaintiff the $246,000 within sixty days or paying the plaintiff for her interest in the property from the proceeds of the sale of the property. The defendant contends that because he chose to pay the plaintiff from the proceeds of the sale of the property, the court improperly modified the property distribution by requiring him to pay thе plaintiff from his personal assets, which the judgment of dissolution awarded to him and him alone, prior to the sale of the property. We conclude, however, that the court‘s consideration of, and decision on, the plaintiff‘s motion for contempt did not alter the
The judgment of dissolution provided that the plaintiff would receive $246,000 for the value of her interest in the property. If the defendant failed to pay this sum to the plaintiff within sixty days from the date of dissolution, the property would be placed on the market and the plaintiff would be paid the $246,000 from the proceeds of the sale. Contrary to the defendant‘s argument, this provision does not provide him with a choice between paying the plaintiff from his personal assets or from the proceeds of the sale of the property. Rather, this provision seeks to ensure that the plaintiff receives the sum owed to her by the defendant. The court found that there was substantial equity in the prоperty. Thus, in the event that the defendant failed to pay the plaintiff within sixty days, the court in the judgment of dissolution inserted a safety valve to guarantee that the plaintiff received $246,000 by ordering the property to be placed on the market.
The defendant had almost nine months between the date of dissolution and the August 11, 2014 order to either pay the plaintiff or work with the plaintiff to place the property on the market. The defendant did neither. Additionally, the court found that the defendant hindered the sale of the property by attaсhing an eleven page addendum to the proposed listing agreement, detailing every potential defect to the property. The defendant not only failed to comply with the judgment of dissolution, but also acted to impede the sale of the property, and, thus, “noncompliance on the part of the parties [has] made strict adherence to the terms of the [judgment of dissolution] impossible.” (Internal quotation marks omitted.) Santoro v. Santoro, supra, 70 Conn. App. 218. The only option left to the court to enforce the judgment was to fashion “an appropriate remedy to protect the integrity of the original judgment.” Id. That is precisely what the court did.
The court‘s order that the defendant pay to the plaintiff $246,000, plus interest, in three installments over the course of a year is analogous to the effectuation of the judgment of dissolution in Santoro v. Santoro, supra, 70 Conn. App. 212. In Santoro, the judgment of dissolution ordered the plaintiff to pay the defendant $30,000 as a lump sum within five years from the date of dissolution, which the plaintiff failed to do. Id. The trial court subsequently found the plaintiff in contempt and ordered the plaintiff to pay to the defendant $5495 up front and $24,505 over the coursе of thirty-two years to effectuate the original judgment. This court upheld that determination on appeal because it was an order effectuating, not modifying, the original judgment. Id. This court held that once strict adherence to the terms of the judgment of dissolution is impossible, the court may fashion an appropriate remedy to effectuate the orders of the judgment. Id.; see also Simes v. Simes, 95 Conn. App. 39, 41, 44–45, 895 A.2d 852 (2006) (“[T]he plaintiff had paid only $5000 of his $9500 monthly obligation . . . . The plaintiff, therefore, needed to make up the $4500 deficiency for each month. We accordingly conclude that the court‘s order permitting the $4500 monthly shortfall to be paid out of the plaintiff‘s equitable share of the residence did not alter the terms of the original order, but rather fashioned an appropriate remedy to protect the integrity of the original award.“).
In the present case, sixty days from the date of dissolution had passed and the court found that the defendant had prevented
Furthermore, the court did not directly order the defendant to pay the plaintiff from his personal assets. In other words, the defendant was not necessarily required to liquidate his рersonal assets, like his retirement account, to make the installment payments, because the court also ordered the parties to place the property on the market, without the eleven page addendum. The court left open the possibility that the property would be sold and that the defendant then could pay the plaintiff from the proceeds of the sale. Given the defendant‘s reticence in complying with the court‘s orders, however, the court ensured that the plaintiff would receive the sum owed to her within a specified span of time one way or another.
In sum, the defendant‘s contemptuous actions rendered strict compliance with the judgment of dissolution impossible, and, thus, the court crafted an appropriate remedy to effectuate the judgment. Accordingly, we conclude that the court did not improperly modify the property distribution postdissolution.
The judgment is affirmed.
In this opinion the other judges concurred.
PRESCOTT, J.