George Rozsa v. Ellen Rozsa (2010)

MEMORANDUM OF DECISION de DEFENDANT'S AMENDED MOTION FOR CONTEMPT, POST-JUDGMENT (199) AS AMENDED BY AMENDED MOTION DATED MARCH 25, 2010(219)

This motion, as amended, alleges that the plaintiff has failed to transfer “$312,810 due to the defendant.”   It is an IRA account in the plaintiff's name awarded to the defendant.   Fidelity's monthly statements (De.Ex. A) appear to list taxes paid on withdrawals, early withdrawal penalties as well as funds received by the plaintiff alleged to be as follows:

$40,000 January 24, 2008

$20,000 March 3, 2008

$25,000 June 10, 2008

$22,500 March 2, 2009

The court is unable to determine the exact responsibility of the plaintiff without further evidence.   In particular the responsibility of either party for tax liability arising from the court order awarding the account to the defendant as well as the partial releases while the appeal was pending requires a further hearing.

Also alleged is the plaintiff's failure to pay 50% of the Nordstrom Visa credit card, $12,000 for defendant's expert witness fees and $30,000 awarded the defendant to defend the dissolution action.

A final claim alleging rents collected by the plaintiff claimed by the defendant for properties transferred to the defendant is also claimed to be a contempt.   The appellate decision was officially released on September 8, 2009.   The plaintiff testified that he transferred the four parcels of real estate a few days after the appellate decision with all expenses paid to date.   The rents due for September, if payable on the first of the month, were collected by the plaintiff who was still the owner and landlord of the parcels.   The court finds no basis for the claim of contempt made by the defendant in these circumstances.

While the appeal was pending neither party sought interim orders.   The plaintiff continued to conduct his business activities believing he would prevail on the appeal.   The court cannot characterize the appeal as frivolous as the defendant's attorney claims.

Contempt is found when a party is in wilful disobedience of the court's order although that party was capable of complying, usually by payment of the money ordered but is wilfully failing to do so.   The inability to obey an order of the court, without the party's fault, is a good defense to a charge of contempt, Tobey v. Tobey, 165 Conn. 742, 746.   The plaintiff made several decisions in the conduct of his business and commercial affairs that has placed him in a position of an inability to meet certain orders due to these decisions.

His withdrawals from the IRA account, knowing that it was awarded to the defendant in the judgment, without court permission and now without an ability to replace the funds is found to be a contempt of the court's order.   As noted above, however, without an analysis of the tax consequences of the withdrawals by each party in this case, the court is unable to fix a purge.   The other orders concerning other payments that he has failed to make must be cleared up as part of his purge.   The contemnor must be provided with the key to his release as so aptly put by Mays v. Mays, 193 Conn. 261, 266-67.

The motion is assigned for an additional hearing at which time the plaintiff shall present to the court his proposal of how he intends to meet the court's orders.

THE COURT

HARRIGAN, J.T.R.

Harrigan, Dennis F., J.T.R.