Susan M. Banville v. Paul A. Banville (2010)

MEMORANDUM OF DECISION

After a trial the court, Caruso, J., issued a memorandum of decision dated November 7, 2008, which dissolved the marriage.   Pursuant to the memorandum, the defendant was awarded two pieces of real property:  261 Kenyon Street, and 39-41 Oxford Street.   The defendant was also ordered to hold the plaintiff harmless from any liens or encumbrances on the properties.   The court also found the defendant in contempt for failure to pay court ordered expenses, and ordered him to pay attorneys fees in connection with that contempt finding.

The defendant filed an appeal of the court's decision and the plaintiff filed at least six motions for contempt based upon the defendant's alleged willful non-compliance with court orders.   On October 13, 2009, the parties entered into a post-judgment stipulation in which the defendant agreed to withdraw his appeal and also agreed that he owed the plaintiff for certain expenses, and that he would refinance properties that he owned in order to remove the plaintiff from the existing mortgages on them and to satisfy the debts he owed to her.

The stipulation further provided as follows:  “The defendant, through counsel, shall provide the plaintiff with written reports regarding his ability to refinance said mortgages within thirty (30) days from the date hereof, and every thirty (30) days thereafter, until his obligations as aforesaid are satisfied.   In the event that the defendant does not obtain an unconditional commitment by December 1, 2009, time is of the essence, with a closing schedule no later than December 31, 2009 time is of the essence both properties shall be placed upon the market for sale.   Upon sale, any sums due pursuant to paragraph six (6) shall be paid before any disbursement to the defendant.   The Court shall retain jurisdiction over the issue of sale including listing price, acceptance of offers, etc.”

The original hearing date for this was on April 26, 2010.   Due to a family tragedy, defense counsel was not able to attend the hearing, however another attorney was there to assist the defendant but the defendant was not present because he had flown to Nebraska with one of the children on a college tour.   This court issued a capias to assure his appearance.

The hearing finally began on May 7, 2010.   Both parties were represented by counsel and both testified.

The court finds the plaintiff was credible and the defendant was not.   The court finds that the defendant willfully failed to comport with many of the court orders, such as failure to make payments per the October 13, 2009 stipulation, willfully failed to keep the plaintiff informed about the refinancing, willfully failed to place the properties on the market for sale and failed to hold her harmless.   Therefore, the court finds that the defendant was in contempt.

By the end of the hearing the defendant had paid to the plaintiff virtually everything that was owed to her and had finally listed the Webster Street property for sale and was securing refinancing for the Kenyon Street property.   It is clear to this court from the evidence before it and a review of the file that this was done only because of the impending court action, and it is also clear to the court that it caused the plaintiff to incur significant and unnecessary legal expenses.   The court finds that the plaintiff's attorneys fees of $9,110.00 are reasonable and the defendant is ordered to pay that sum plus $151.60 in costs to the plaintiff's attorney within sixty days of the issuance of this decision.

SO ORDERED.

BY THE COURT,

J. Fischer, J.

Fischer, Jack W., J.