Maria McKeon v. William Lennon (2010)

CORRECTED MEMORANDUM OF DECISION

The present matter comes before this court by virtue of a motion for contempt filed by the plaintiff on June 1, 2010, postjudgment.   On September 10, 2010, the court heard testimony from the Plaintiff and the Defendant and exhibits were introduced on the motion for contempt.

The June 1, 2010, postjudgment motion for contempt alleges, inter alia, that the Defendant was in willful violation of a court order in that:

1) The Court entered final orders on December 31, 2007 requiring that “Husband shall name Wife as the irrevocable, primary beneficiary of all stock options, restricted stock, common stock, phantom stock, participation units or any other stock related benefit in which she has an interest, and as her interests arise.”

2) The Court approved and ordered a stipulation on September 2, 2009 in which the Defendant agreed to name the Plaintiff as the irrevocable beneficiary of the awards.   The stipulation provides, “Proof of such testamentary provision shall be provided to the Plaintiff through counsel within 60 days of today's date.”

3) The Defendant submitted a page from his Last Will and Testament, but the provision did not name the Plaintiff as the irrevocable beneficiary of the assets in accordance with the court orders.

4) The Plaintiff requested that it be corrected and the Defendant provided an altered copy but again the document did not name the Plaintiff as the irrevocable beneficiary of his assets.

5) To date, the Defendant has willfully failed to name the Plaintiff as irrevocable beneficiary of such assets in violation of the orders asserted in the Memorandum of Decision.

DISCUSSION AND FINDINGS

A. Contempt

In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001).   Civil contempt may be found only upon a clear and unambiguous court order.  Dowd v. Dowd, 96 Conn.App. 75, 79, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).   Contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts.  In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007).   A contempt remedy is particularly harsh and it may be founded solely upon some clear and expressed direction of the court.  Id. “Noncompliance alone will not support a judgment of contempt.”  Bowers v. Bowers, 61 Conn.App. 75, 81, 762 A.2d 515 (2000).   A court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful.  Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995).   The inability of the defendant to obey an order of the court, without fault on his part, is a good defense to a charge of contempt.  Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974).   It is the non-movant's burden to prove his inability to comply with a valid court order.

B. Findings

The court makes the following findings of fact:

On December 31, 2007, after a fully contested hearing, the court, Shluger, J., issued a written memorandum of decision dissolving the marriage of the parties.   It is clear from the court's memorandum of decision that the parties shared a complicated financial picture.   The court found that the Defendant was a Vice President at Electric Boat “earning substantial wages and generous benefits including a base salary of $225,420, annual bonus, stock options, restricted stock awards and a pension.”   The Plaintiff was a freelance corporate attorney.

In fashioning its financial orders, the court awarded the Plaintiff alimony and a division of property.   In part, the court awarded the Plaintiff a portion of the Defendant's incentive stock options, future options, restricted stock, future restricted stock, and non-statutory stock options.   The court then ordered that the Defendant designate the Plaintiff as the beneficiary of said options.   Specifically, the court ordered in Section 3.6 of its memorandum of decision, that the:

Husband shall name Wife as the irrevocable, primary beneficiary of all stock options, restricted stock, common stock, phantom stock, participation units or any other stock-related benefit in which she has an interest, and as her interests arise.   Notwithstanding the forgoing, if the establishment of a separate account (as provided for above), into which the options and/or shares allocated to Wife will be transferred, allows Wife to designate a beneficiary of the choice for her separate account, then Husband shall be relieved of the requirements of this Section 3.6 as they relate to any options and/or shares that have been transferred into Wife's separate account.

Subsequent to the December 31, 2007, memorandum of decision, the parties filed numerous post-judgment motions.   On September 2, 2009, the parties reached a post-judgment stipulation resolving said motions, (hereinafter “the Stipulation”).   The Stipulation was presented to the court;  the court, Shluger, J. reviewed the Stipulation, and accepted it.

Paragraph 9 of the Stipulation is entitled “Beneficiary Designation Forms for Plaintiff's Restricted Stock and Stock Options.”   It states:

In compliance with the December 31, 2007 decision, Defendant agrees to name Plaintiff as the irrevocable beneficiary of all the Restricted Stock, Restricted Stock Units and Stock Options awarded to her and to give her copies of such executed forms.   Defendant shall execute these forms and give them to Plaintiff within five days of notification that the forms are available.   Presently the plan does not permit or offer beneficiary designation forms.   Accordingly, until such times as beneficiary forms are permitted and available, the defendant shall name the plaintiff as the irrevocable beneficiary of the Restricted Stock, Restricted Stock Units and Stock Options awarded to her pursuant to the judgment of December 31, 2007.   Proof of such testamentary provision shall be provided through counsel within 60 days of today's date.   In the event that such testamentary provision is not made, the plaintiff shall have a valid claim against the defendant's estate for the full benefit of all such Restricted Stock, Restricted Stock Units and Stock Options awarded to her pursuant to the judgment as of the date of defendant's death.

On December 14, 2009, the Plaintiff contacted the Defendant seeking the testamentary documents showing her as the irrevocable beneficiary of her stock options and restricted stock awarded to her in the December 31, 2007, Memorandum of Decision.   On December 18, 2009, the Defendant's attorney forwarded to the Plaintiff's attorney a copy of the Defendant's Last Will and Testament executed December 17, 2009, (hereinafter the “December 17, 2009, Will” or “Will”), naming the Plaintiff as the irrevocable beneficiary of certain restricted stock, restricted stock units and stock options.

On January 4, 2010, the Plaintiff notified the Defendant that the December 17, 2009, Will did not comply with the court orders and the Plaintiff requested the Will be corrected.   On January 28, 2010, the Defendant notified the Plaintiff that his attorneys were revising the Will and that he would forward the corrected Will when it was completed.   On February 7, 2010, the Plaintiff requested a draft of the Will so that she could make sure it was accurate.   On February 23, 2010, the Defendant's attorney forwarded to the Plaintiff's attorney a revised Last Will and Testament executed on February 20, 2010, (hereinafter “the February 20, 2010, Will”).

On February 24, 2010, the Plaintiff notified the Defendant that, according to her, the language of the February 20, 2010, Will did not comply with the court's orders.

The Defendant's February 20, 2010, Will designates the Plaintiff as “the irrevocable, primary beneficiary of all stock options, restricted stock, common stock, phantom stock, participation units or any other stock related benefits in which Maria McKeon has an interest, and as her interests may arise.”   The Plaintiff wants to insert after “participation units” the terms “Restricted Stock Units, Stock Appreciation Rights, Dividends, Dividend Equivalents.”   The February 20, 2010, Will language mirrors the court's December 31, 2007, paragraph 3.6 language.   The terms “Dividends” and “Dividend Equivalents” do not appear in paragraph 3.6 of the December 31, 2007, memorandum of decision and they do not appear in paragraph 9 of the Stipulation.

The Plaintiff also wants the February 20, 2010, Will to be changed by removing the word “primary” from “irrevocable, primary beneficiary.”   However, the court's December 31, 2007, Memorandum of Decision in paragraph 3.6 uses the term “irrevocable primary beneficiary.”   The September 9, 2009, Stipulation uses the term “irrevocable beneficiary.”

Lastly, the Plaintiff wants the February 20, 2010, Will to include the following language;  “and a copy has been delivered to Maria F. McKeon naming her as the irrevocable beneficiary as follows.”   Said language is not found anywhere in paragraph 3.6 of the December 31, 2007, Memorandum of Decision and it is not found anywhere in paragraph 9 of the Stipulation.

The court finds that there are two court orders that need to be read together in order to find the Defendant in contempt of court.   It is clear that the Defendant must designate the Plaintiff as the beneficiary of certain stock options in his last will and testament.   The Defendant has done that.   The Plaintiff wishes to include specific language in the Defendant's last will and testament.   The two orders do not contradict each other;  however, there lacks specific and definite language to be included in the last will and testament.   The Plaintiffs proposed changes can not be clearly found in paragraph 3.6 of the December 31, 2007, Memorandum of Decision.   Likewise, Plaintiffs proposed changes can not be clearly found in the September 9, 2009, Stipulation.

The court does find that the Defendant did not finalize his last will and testament within the sixty days required by the September 9, 2009, Stipulation.   However, the court finds that given the circumstances, the delay in finalizing the Defendant's last will and testament is not a willful violation of a court order.

1. Plaintiff's June 1, 2010 motion for contempt is:

DENIED.

2. Plaintiff's request for attorney's fees is:

DENIED.

SUAREZ, J.

Suarez, José A., J.