Suzanne M. Dembroski v. Luc A. Despins (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR RELIEF FROM AUTOMATIC ORDERS DATED NOVEMBER 12, 2010 (# 160.00)

The defendant, having appeared by counsel of record in this dissolution of marriage action, seeks relief from the automatic orders of P.B. § 25–5(1) and (2) by filing Defendant's Motion for Relief from Automatic Orders dated November 12, 2010 (# 160.00) so that the defendant could purchase a single-family residence in Connecticut for his occupancy using a portion of cash for the down payment and incur the liability of a first mortgage on the Connecticut real property.   The defendant's motion contained these representations.   Although the defendant did not have a specific property in mind, the defendant testified at the hearing on the motion the general parameters for the purchase:  located in the State of Connecticut within a certain purchase price range with a first mortgage designed to take advantage of the current favorable mortgage rates.   A hearing on said Motion for Relief from Automatic Orders was held on December 17, 2010.   The defendant testified and was cross-examined.   Both counsel offered argument.

The court hereby grants the Defendant's Motion for Relief from Automatic Orders dated November 12, 2010 (# 160.00) and enters the following Orders:

1.  The defendant shall be permitted to use One Million Five Hundred Thousand ($1,500,000) Dollars from cash for the purchase of a single-family house of defendant's choice.   Title to this real property shall be only in the defendant's name.

Although the court has not limited the location of the real property to Connecticut and makes no mention of the state or country in which the house was to be located in its oral decision issued from the bench immediately after the motion was argued, the defendant has so limited the requested order by stating in his motion and stating in his testimony that he wanted the court to permit a Greenwich, Connecticut real property purchase.   The Greenwich, Connecticut location was contemplating purchasing.   It may have been preferable for the court to have included a condition that the real property be located in Connecticut in its oral decision, but the court is of the opinion that the defendant is bound by his representations and testimony that limit the house purchase to Connecticut.1

2. The court permits the defendant to obtain a first mortgage on said single-family house provided that the mortgage payments of principal and interest do not exceed Twelve Thousand Five Hundred ($12,500) Dollars per month and that the mortgage be a fixed rate.

3. The fair market value of the real property at the time of the decree of dissolution will be the purchase price of the real property at the time of the defendant's purchase in the event that the real property loses fair market value after its purchase.

4. The fair market value of the real property at the time of the decree of dissolution will be the fair market value of the real property at the time of the decree of dissolution in the event that the real property increases fair market value after its purchase.

5. The risk of loss of this real estate investment, including the general real estate market will be sustained by the defendant.   The risk of loss of this real estate investment including the general real estate market will not be sustained by the plaintiff.

6. The defendant shall be permitted to pay from his own earnings, in addition to cash of One Million Five Hundred Thousand ($1,500,000) Dollars set forth in paragraph 1, whatever costs are necessary for his purchase of the property in the usual course of a real estate closing, including but not limited to real estate tax adjustments, usual closing adjustments between buyer and seller, escrow real estate taxes, escrow insurance, title insurance premiums, attorneys fees, usual and routine closing costs, and any costs related to applying for and obtaining said first mortgage.

7. This order is the mere conversion of one asset, cash on hand, to another asset, real property.   This newly purchased real property shall be subject to distribution to either party at the time of the decree of dissolution of marriage.   This order is not a conveyance, transfer or distribution of any asset to the defendant.

8. The defendant's request to purchase furniture is denied.

9. The defendant's request that the plaintiff receive the sum of One Million Five Hundred Thousand ($1,500,000) Dollars in cash is denied.

10. This order is effective December 17, 2010.

BY THE COURT

Hon. Kevin Tierney

FOOTNOTES

FN1. See O'Brien v. Davis, 49 Conn. 474 (2005) for a decision on interpreting a court's oral decision rendered from the bench immediately after the conclusion of the hearing.   The court is mindful that the plaintiff has appealed the court's December 17, 2010 order and no doubt would have additional grounds for appeal if this court permitted the defendant to remove cash and invest in real property outside of Connecticut.   The preliminary draft of this written order stated in paragraph 1 that the house be “located in the State of Connecticut.”   The preliminary draft copy was furnished to both counsel for comment and the plaintiff requested that that phrase be eliminated from this court's written memorandum of decision since the court in its oral decision from the bench made no reference to limiting the real estate to Connecticut.   It may appear that the plaintiff by requesting the removal of the phrase “located in the State of Connecticut” in paragraph 1 hereof has invited this court to commit error.   This court believes otherwise.   This court has consented to the plaintiff's request and has deleted the phrase “located in the State of Connecticut” from paragraph 1 since the defendant by limiting his motion to the purchase of Connecticut real property and his testimony to the purchase of Connecticut real property, has limited the court's power to only permit a Connecticut real property..  FN1. See O'Brien v. Davis, 49 Conn. 474 (2005) for a decision on interpreting a court's oral decision rendered from the bench immediately after the conclusion of the hearing.   The court is mindful that the plaintiff has appealed the court's December 17, 2010 order and no doubt would have additional grounds for appeal if this court permitted the defendant to remove cash and invest in real property outside of Connecticut.   The preliminary draft of this written order stated in paragraph 1 that the house be “located in the State of Connecticut.”   The preliminary draft copy was furnished to both counsel for comment and the plaintiff requested that that phrase be eliminated from this court's written memorandum of decision since the court in its oral decision from the bench made no reference to limiting the real estate to Connecticut.   It may appear that the plaintiff by requesting the removal of the phrase “located in the State of Connecticut” in paragraph 1 hereof has invited this court to commit error.   This court believes otherwise.   This court has consented to the plaintiff's request and has deleted the phrase “located in the State of Connecticut” from paragraph 1 since the defendant by limiting his motion to the purchase of Connecticut real property and his testimony to the purchase of Connecticut real property, has limited the court's power to only permit a Connecticut real property.

Tierney, Kevin, J.T.R.