Carmela Violi f/k/a Carmela Ceci v. Louis Ceci (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (# 236);  DEFENDANT'S MOTION TO DISMISS (# 239) AND DEFENDANT'S MOTION TO DISMISS (# 247)

These three motions all arise as part of postjudgment proceedings between the parties.   The parties were divorced by the court (Shay, J.) on October 24, 2008, after trial.   The first two of the pending Motions to Dismiss (# 239 & # 247) concern very similar motions to reopen, plaintiff's Motion to Reopen Judgment (# 234) and plaintiff's Amended Post-Judgment Motion to Open Judgment (# 246) and will be discussed together.

Defendant's Motion To Dismiss (# 239) and Defendant's Motion To Dismiss (# 247)

In paragraph 17D of the court's Memorandum of Decision (# 181.10) dated October 24, 2008, (hereinafter the “Decree”) the court directed that “All joint bank accounts, including savings, checking, and money market, shall be closed two (2) weeks from the date of this order and the proceeds divided equally between the parties.”   On June 4, 2010, plaintiff filed a Motion to Open Judgment (# 234) claiming that although an account at the Bank of America was in the name of both parties, in the time period leading up to and including the date of judgment, only one party, the plaintiff, had been utilizing the joint bank account and it was being used as an individual account into which pendente lite alimony and child support payments from the defendant were being deposited.   Plaintiff also claims she deposited her share of a tax refund into this account and that certain linked savings accounts belong to the minor children of the parties.   Notwithstanding that the division was ordered within two weeks from October 24, 2008, plaintiff averred she was not aware of the dispute regarding division of this account until February 2010.   Plaintiff asked the court to reopen the judgment and receive evidence regarding utilization of the BOA account for the purpose of redividing said account.

On June 21, 2010, plaintiff filed an Amended Post-Judgment Motion to Open and for Clarification (# 246) the substance of the amendment appears to be that plaintiff now additionally asks the court “to clarify whether it was the intention of the Court for the parties' to equally divide Bank of America accounts.”

The defendant's motions, Defendant's Motion to Dismiss (# 239) and Defendant's Motion to Dismiss (# 247), seek to have each of the plaintiff's two motions to reopen dismissed on the basis that they are neither proper motions to open the judgment nor a proper request for clarification.   The principal argument advanced is that the court no longer has jurisdiction to grant the relief requested.   Defendant argues that the period that within which judgments may be reopened, four months following the date of notice, has long since expired and that a property allocation, unlike provisions concerning alimony or support, are not subject to the continuing jurisdiction of the court.   As to the request for clarification, defendant argues this is not a proper request.

A review of the court file indicates that notice of the court's Decree was given on October 24, 2008.   There is no claim that notice was not received in this case.   Rather it appears from the plaintiff's motions that plaintiff never appreciated the impact of the court's decision until sometime in February of 2010.   It appears to the court that plaintiff's motions come outside the four months allowed under Connecticut Practice Book § 17-4 and Conn. Gen.Stat. §§ 52-212 and 52-212a.   Indeed CGS § 52-121a prohibits reopening judgments more then four months following the issuance of notice.   The exceptions to this rule are few and the plaintiff has not invoked any of them.

The court also agrees with defendant that paragraph 17D is a property division, not a support or alimony provision which may be subject to the continuing jurisdiction of the court.

Finally, it appears that insofar as plaintiff is requesting “clarification” of the relevant language, it does not appear that such a request is proper.   Here the language in the court's Decree was already clear.   All joint accounts were to be closed and divided equally.   It was not the language of the Decree which lacked clarity, it was plaintiff's understanding of the impact of that language on a particular asset.   In short, it appears that plaintiff's request for clarification is simply a request for the court to rewrite the Decree in a way that would now be more just and equitable in the eyes of the plaintiff.   Mindful of the inherent danger in trying or retrying these matters on a piecemeal basis, the court is reluctant to sanction that approach.

While the court agrees with the substance of the defendant's arguments contained within the memorandum offered in support of defendant's respective motions to dismiss, it notes that the Connecticut Supreme Court has found Conn. Gen.Stat. § 52-212a and by implication, P.B. § 17-4, to limit the authority of the court rather then it's jurisdiction.   See Kim v. Magnotta, 249 Conn. 94, 101-04 (1999).   Accordingly, the court treats defendant's motions to dismiss as objections to the respective motions to reopen the judgment and sustains the objections and denies Plaintiff's Motions to Reopen Judgment, (# 234 and # 246).

Defendant's Motion To Dismiss (# 236)

In Defendant's Motion to Dismiss (# 236), the defendant seeks to dismiss Plaintiff's Motion to Enjoin (# 233) and consideration of defendant's motion must begin with a description of plaintiff's motion.   On May 28, 2010 plaintiff filed her “Post Judgment Motion to Enjoin.”   In plaintiff's motion, plaintiff recites that as part of the court's October 24, 2008 Decree dissolving the marriage, the defendant was awarded property known as 543 Stanwich Road located in Greenwich, Connecticut.   The defendant was given exclusive possession but also held responsible for payment of all “mortgages, liens, taxes and insurance” and to indemnify the plaintiff from “any further liability” therefore.   The court, in paragraph 11 of the Decree, also ordered the defendant to refinance all existing mortgages within twenty-four (24) months following the decree of dissolution.   Plaintiff in her motion, claimed that since the time of trial, the defendant has drawn down a home equity line of credit from approximately $266,000 to $700,000.   Plaintiff argued she was unable to refinance her own properties due to the amount of debt outstanding on 543 Stanwich Road. Plaintiff also argued that given defendant's ability to further draw down substantial sums on the home equity line of credit defendant could well put himself in a position where he would be unable to refinance the property by the October 2010 deadline and the plaintiff would remain liable for these debts.

In opposition to this motion, the defendant has filed its Motion to Dismiss together with a Supporting Memorandum (# 237).   Defendant's argument is, in essence, that plaintiff's motion is an attempt to modify a property allocation order of the court and that this court lacks subject matter jurisdiction to do so.   Defendant also argues that the plaintiff has cited no order of the court within the Decree which would permit the court to issue an injunction in this case.   In the absence of such a provision, defendant argues, there is no subject matter jurisdiction or power for the court to grant an injunction.

The court notes that both the plaintiff's motion to enjoin and the defendant's motion to dismiss have been marked off the short calendar on multiple occasions and as recently as November 8, 2010.   The motion to dismiss was then submitted to the court, on the papers.   Insofar as the motion before this court is defendant's challenge to the court's subject matter jurisdiction over a pending motion by the plaintiff, the court will address the defendant's motion.

While the relevant language pulled from the Decree of the court largely concerns an allocation of specific real property it also clearly imposes upon the defendant ongoing obligations “for the payment of all mortgages, liens, taxes, and insurance, and [to] indemnify and hold the wife harmless from any further liability thereunder.”   The continuing obligation on the part of the defendant goes beyond a mere allocation of property, and this court has jurisdiction to enforce its orders.   While the defendant argues that “Nothing in the Court's order precluded Defendant from further borrowing against the second mortgage home equity line of credit,” (see defendant's Memorandum of Law in Support of Defendant's Motion to Dismiss (# 237) at 2) analysis of the language in the Decree shows it may well prohibit the conduct which defendant allegedly performed.

The Decree here orders the defendant to “hold the wife harmless from any further liability” on any mortgages.   Webster's defines the word “further” to include “in addition” and “to a greater degree or extent.”   See, Webster's Ninth New Collegiate Dictionary (1990).   Random House includes among the definitions, “more extended” and “additional;  more.”   The Random House Dictionary of the English Language (2d. ed.1987).   As an increase in the balance of a home equity line of credit could well create additional, more extended or greater liability on the part of the plaintiff, the conduct alleged in plaintiff's motion may well constitute a violation of the Decree.¹

The court thus determines the argument advanced by defendant, that the court lacks jurisdiction over plaintiff's motion, is infirm and defendant's motion to dismiss is denied.

Done this 30th day of December 2010.

BY THE COURT

WILLIAM WENZEL

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. The court has not yet heard argument on Plaintiff's Post-Judgment Motion to Enjoin (# 233).   It also notes that because the requirement that the defendant refinance the applicable liens and mortgages has now matured, the particular relief sought by the plaintiff in the form of an injunction might now be rendered moot by the passage of time.   Accordingly, the court determines that it should not now adopt any final understanding as to the scope of conduct precluded by the applicable language in the court's Decree.   Suffice it to say that for the purposes of determining the defendant's motion to dismiss based on an attack of the court's subject matter jurisdiction, the court feels there is more then sufficient bases to deny said motion based on the language in the Decree..  FN1. The court has not yet heard argument on Plaintiff's Post-Judgment Motion to Enjoin (# 233).   It also notes that because the requirement that the defendant refinance the applicable liens and mortgages has now matured, the particular relief sought by the plaintiff in the form of an injunction might now be rendered moot by the passage of time.   Accordingly, the court determines that it should not now adopt any final understanding as to the scope of conduct precluded by the applicable language in the court's Decree.   Suffice it to say that for the purposes of determining the defendant's motion to dismiss based on an attack of the court's subject matter jurisdiction, the court feels there is more then sufficient bases to deny said motion based on the language in the Decree.

Wenzel, William, J.