Caroline Hirschfeld v. Robert B. Machinist (2010)

MEMORANDUM OF DECISION RE MOTION # 292, POSTJUDGMENT

The marriage of the parties was dissolved by decree of this court on February 2, 2007.   At that time, the parties filed with the court a Separation Agreement (# 167.10) (“Agreement”) of even date therewith, which the court approved and incorporated in its decree by reference.   Among other things, the Agreement provided for the listing, sale, and distribution of the proceeds from the sale of the three real properties owned by the parties, namely:  9 Lauder Way, Greenwich, Connecticut;  39 High Meadow Road, Winhall, Vermont;  and Kir Royal, St. Barthelmy, French West Indies (“St.Barth's”).  The parties filed numerous postjudgment motions, and following hearing on August 24, 2009, the court filed a Memorandum of Decision (# 254.10) and a Correction (# 260.10) thereto dated October 13, 2009, which disposed of many of these outstanding motions.   These orders are presently the subject of an appeal, and, initially, a mandatory stay.

Later, the husband asked the court to lift the stay as to all three real properties.   Following a hearing on October 19, 2009, the court lifted the stay as to the Greenwich and Vermont properties, but left in place the stay regarding the property at St. Barth's.   As a part of its order terminating the stay, the court delayed implementation so as to allow the wife time to ask for a review.   She did so within the time allotted, on October 29, 2009, after which the Appellate Court granted the motion but denied the relief requested.   Thereafter, on January 7, 2010, the husband renewed his motion to terminate the stay as to the St. Barth's property, which the court granted on February 23, 2010, after a hearing.   The wife, in turn, filed a Motion for Review dated March 2, 2010, and on April 21, 2010, with permission, filed a Revised Motion for Review.   The Appellate Court again granted the motion, but it denied the relief sought.   Therefore, all stays regarding the sale of the three marital properties have now been terminated.

This matter has come before the court by way of the defendant's Motion to Modify the present order as it relates to the property on St. Barth's.   Specifically, the defendant seeks an order permitting the husband to lower the listing price to $2,200,000.00 (U.S.) and other relief, including the transfer of title to the property to him.   The property is currently listed at $2,900,000.00 (U.S.).   In addition to the parties, the court heard from Tony Smythe from St. Barth's Properties, whose agency has always handled listing and rental of the property.   Mr. Smythe told the court that, in addition to his expertise regarding the island real estate in general, he had a unique perspective on this particular property, since it had been originally owned by his family.   He also testified that the property should be listed for sale at $2,200,000.00 (U.S.), that there was a current offer to purchase the property, and that the current offer is reasonable.

Mrs. Hirschfeld testified that she had not visited the property for about fourteen months.   Mr. Machinist told the court that the property is held in the name of a French corporation, Anniversary Holdings, in which he and his former wife each own a one-half interest.   He also testified that the current offer is subject to a mortgage contingency, which has been extended at least once, and which expires at the end of May.

The court heard testimony and argument over the course of two days.   At the time of final argument, the defendant asked the court to terminate any stay.

FINDINGS

1. That the parties continue to exhibit a demonstrable inability to work together, which has occasioned an unreasonable delay selling the property known as Kir Royal, St. Barth's, French West Indies;  and that it is equitable and appropriate to modify the court's previous order as the only practicable way in which to protect the integrity of and to implement the provisions of the original decree of this court.  Roberts v. Roberts, 32 Conn.App. 465, 471 (1993);

2. That the evidence supports a finding that the listing price of said property should be reduced to $2,200,000.00 ($U.S.), effective immediately;

3. That the current offer to purchase is reasonable under all the circumstances;  and

4. That effective immediately, the defendant should have exclusive possession of said property, as well as the exclusive power to execute a new listing agreement for sale or rental, negotiate and sign a contract of sale or a rental.

ORDER

IT IS HEREBY ORDERED THAT:

Effective upon the filing of this Order, the court order of August 24, 2009 as to the real property known as Kir Royal, St. Barthelmy, French West Indies is hereby modified to read as follows:

1. The defendant, Robert Machinist, shall have exclusive possession of said property, as well as the exclusive power to execute a new listing agreement for sale or rental, and to negotiate and sign a contract of sale or for a rental.

2. At the sole option of the defendant, he may reduce the listing price of said property to a sum no lower than $2,200,000.00 ($U.S.);   that he may accept the present offer or any other reasonable offer to purchase within 15% of $2,200,000.00 (U.S.), and that further reductions in the listing price shall be made only with the approval of the court;

3. Within three (3) business days of the full execution of any rental contract or contract of sale, the defendant shall provide a copy of same to counsel for the plaintiff.

4. Any fully executed contract of sale for said property shall be subject to approval by this court.

5. The net proceeds, if any, from the sale of the property shall be held in escrow by the firm of Rutkin, Oldham and Needle, LLC as trustees, to be disbursed only by agreement of the parties or upon further order of the court.

6. Any net rental income, after the deduction of normal fees and expenses, shall be held by St. Barth Properties until agreement of the parties or order of the court.

7. The defendant shall be entitled to recover the reasonable legal fees and costs incurred in the preparation and argument of this motion, and counsel for the defendant shall file an affidavit of fees, after which the plaintiff may be heard thereon.

The Court

Shay, J.

Shay, Michael E., J.