Carol Pinto v. Anthony J. Pinto (2010)

MEMORANDUM OF DECISION RE PLAINTIFF'S REQUEST FOR RULE TO SHOW CAUSE

An evidentiary hearing on plaintiff's request for rule to show cause, filed on June 21, 2010, was held on July 19, 2010.   At issue is the dissolution agreement of the parties, dated February 3, 2009, and made an order of the court (Gordon, J.).   Paragraph 2f., of said agreement states in relevant part as follows:

The parties own a residence at 157 Shore Road, Clinton, CT (presently titled in the plaintiff wife's name).   Said asset shall continue to be listed for sale, with both parties agreeing to cooperate with the choice of a listing agent ․ and to adhere to said listing agent's recommendations on any reduction in sales price.   The property cannot be sold without the defendant husband's consent ․ In the event that the parties cannot agree on a listing agent, or reducing the listing price as recommended by the listing agent, or the sale price, this court shall reserve jurisdiction concerning the same.

In reaching its conclusions, the court has fairly and impartially considered all of the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, measured the probative force of conflicting evidence, applied relevant statutory criteria and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.

A principle of contract law relevant to the issue before the court was enunciated as follows:

Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms ․ Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact ․ [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.  ARB Construction, LLC v. Pinney Construction Corp., 75 Conn.App. 151, 154 (2003).

Further, “the court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity ․ [the] mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.”  United Illuminating Co. v. WisVest-Connecticut, LLC, 259 Conn. 665, 670 (2002).  “The contract must be construed to give effect to the intent of the contracting parties ․ intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained.”   Greenburg v. Greenburg, 26 Conn.App. 591, 596 (1992).

The plaintiff, at all times relevant to the court's determination, has been the sole owner of record of 157 Shore Road in Clinton.   As a result, inasmuch as the plaintiff owned said property and could thus effect a sale at any time without the defendant's prior knowledge, the agreement required the plaintiff to attempt to obtain the defendant's consent as to the sale price of the property prior to any sale.   The sale of 157 Shore Road was part of the court order and intrinsic to accomplishing all of the financial directives of the separation agreement.   Thus, the defendant merely had to be made aware of any proposal for the sale of the property in order to obtain his input, and if the parties could not agree on the sales price, the agreement provided that the court retained jurisdiction to determine an appropriate sales price.

Although the parties collaborated on a listing agent (chosen by the defendant), and agreed to several price adjustments consistent with the present real estate market, the defendant now refuses to “consent” to a sale of the property pursuant to the terms described in plaintiff's exhibit 2. Plaintiff's exhibit 2 is a purchase and sales agreement for 157 Shore Road. The proposed purchase price is $1,450,000.   The parties' agent, Collette Harron, recommended its adoption, and the manager of Ms. Harron's office at William Pitt Sotheby, Jack Conant also concluded that the offer was consistent with the fair market value for the property.   Although the plaintiff testified that the defendant had previously given his “consent” to sell at that price, and that she signed the purchase and sale agreement as a result of said consent, the defendant now claims a lack of “consent” as evidenced by a lack of a written record of same.   However, the agreement does not require the defendant's consent to be in writing.   Even if the court were to find a lack of “consent,” as defined by the defendant to sell the property for $1,450,000., the defendant's recalcitrance does not operate under the terms of the court order to thwart the sale.   If the court were to adopt the defendant's interpretation of paragraph 2.f., it would enable the defendant in essence to indefinitely prevent the sale of the property, in contravention of the rest of the agreement and therefore render meaningless those provisions of the agreement which describe the appropriate division of proceeds from said sale, as well as the order maintaining the court's jurisdiction over the sale.   The language of paragraph 2f must be read in context.   While the defendant must be notified of the potential sale of the property and given the opportunity to have input with regard to the sales price, his lack of “consent,” or acquiescence to the proposed sale price, does not end the process.   The agreement specifically permits the court to resolve any dispute with regard to an appropriate sales price in the event the parties cannot agree.   The defendant's refusal to agree to the sales price is undoubtably related to the property execution described in plaintiff's exhibit 3, which would severely impact his net gain from the sale of the house.   Nevertheless, the defendant cannot hold the property hostage indefinitely in the hope that eventually a revitalized real estate market would improve his personal financial posture.   It is for the circumstance now presented that the agreement provided for the retention of jurisdiction by the court, and for an ultimate determination by the court of an appropriate sales price in the event the parties could not reach an agreement.

The court has considered and credits the testimony Jack Conant regarding the current fair market value of the property.   The defendant is in arrears on the other obligations related to the agreement, and has been the subject of prior contempt proceedings.   The property is subject to action by the Town of Clinton for non-payment of property taxes.   The court finds that the current fair market value of the property is $1,450,000., and therefore the proposed sales price is fair and equitable under all of the circumstances.   As a result, the following orders shall enter:

1.  The plaintiff may accept the offer of the purchase and sale agreement, plaintiff's exhibit 2, and make such other and further decisions concerning the sale of the property as commercially reasonable.

2. The plaintiff is entitled to a set-off, as described in the schedule of arrears detailed in plaintiff's exhibit 5, from the sums due defendant from the sale of 157 Shore Road.

3. The order of February 3, 2009 requiring that sums be paid to the former counsel of the parties is hereby vacated.

4. The request for sums to defer the costs to the plaintiff for filing an action for interpleader is denied;  the court was not provided with any statutory or other authority for said request.

5. The request for attorneys fees in connection with the prosecution of the instant motion is denied;  there is an insufficient basis on the record, pursuant to law, to fashion such an award.

VITALE, JUDGE

Vitale, Elpedio N., J.