Loretta Polvere v. James V. Polvere (2011)

MEMORANDUM OF DECISION RE MOTIONS # # 144.00, 145.00, 147.00, 149.00, 152.00, 160.00, 178.00. 179.00, 180.00, 181.00, AND 182.00, POSTJUDGMENT

The marriage of the parties was dissolved by decree of this court on September 9, 2008.   At that time, the parties, who were self-represented, as a result of mediation, submitted a Separation Agreement (# 110.10) (“Agreement”) dated September 8, 2008, to the court, which approved same and incorporated it in the decree by reference.   Since that time, numerous differences have arisen between them, many of which were related to discovery, most relating to the execution and enforcement of the Agreement, which have slowly made their way through court.   The court heard the parties over several days, spread out over time, the final hearing taking place on December 15, 2010.   At that time, the court gave the defendant husband's (“husband”) counsel one week in which to file Proposed Orders.   The husband did so on December 21, 2010, and the pleadings closed.

The court heard testimony regarding numerous motions;  denied two from the Bench, to wit:  Defendant's Motion for Contempt (# 146.00) re indemnification, and Plaintiff's Motion for Contempt (# 158.00) re automobile expenses for a child.   The court reserved judgment on the remainder of the motions, to wit:  Defendant's Motion for Contempt (# 144.00) re equity loan, Defendant's Motion for Contempt (# 145.00) re school information and medical costs, Defendant's Motion for Contempt (# 147.00) re filing of tax returns, Defendant's Motion to Compel and Sanctions (# 149.00), Plaintiff's Motion for Contempt (# 160) re sharing college costs, Plaintiff's Motion for Order (# 179.00) re note and mortgage, Plaintiff's Motion for Protective Order (# 180.00), Plaintiff's Motion to Quash Subpoena (# 181.00), and Plaintiff's Objection to Request to Produce (# 182.00).   In addition, the court heard testimony and argument regarding Plaintiffs Motion for Modification (# 178.00) regarding the sale of the former marital home, and Plaintiffs Motion for Contempt (# 152.00) re the loan payments for the Chevy Suburban.   The court considered the “practical effect” of the wife's motion for modification to be a motion for order implementing the underlying order of the court.  Jaser v. Jaser, 37 Conn.App. 194, 201–02 (1995).   The court gave the parties two weeks to file proposed orders regarding the real estate, at which time the pleadings would close.

FINDINGS

1. That a finding of contempt must be based upon a wilful failure to comply with a clear and unequivocal order of the court.  Sablosky v. Sablosky, 258 Conn. 713, 718 (2001);  Blaydes v. Blaydes, 187 Conn. 464, 467 (1982).

2. That “in a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Sardilli v. Sardilli, 16 Conn.App. 114, 120 (1988);  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988).

3. That the husband offered evidence regarding the joint income tax liability and the filing of tax returns for the period 2005 through and including 2007;  and that “the weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court.”  Stearns v. Stearns, 4 Conn.App. 323, 327 (1985).

4. That “a judgment rendered in accordance with ․ [an agreement] ․ of the parties is to be regarded and construed as a contract.”  Barnard v. Barnard, 214 Conn. 99, 109 (1990);  Issler v. Issler, 250 Conn. 226, 235 (1999).

5. That Article 8(c) of the Agreement provides in relevant part that within two weeks following such time as the wife receives her distribution of $300,000.00 from the husband's IBM § 401(k) Plan pursuant to Articles 10(c)(2) and 10(c)(3) of said Agreement, the parties shall each pay $6,000.00 toward the home equity loan (“HELOC”) balance to cover agreed-upon college expenses, and that the wife would pay off the balance of said account;  that thereafter, the husband had limited use of said home equity loan as set forth in Article 8(c);  that at the time of the signing of the Agreement, there was a balance due on the HELOC of $40,000.00;  and that Article 8(c) constitutes a clear and unequivocal order of the court.

6. That the evidence demonstrates that the wife has received the distribution pursuant to Article 10 of the Agreement;  that as of the date hereof, the husband has not yet made his required $6,000.00 payment;  that the wife has paid $12,000.00 toward said balance;  that she has not paid her share of the balance amounting to $22,000.00;  that subsequent to the signing of the Agreement, the wife lost her job involuntarily;  and that while she is in breach, her actions are not wilful and lacking in good cause, and they do not rise to the level of contempt.

7. That Article 5(h) and Article 5(I) of the Agreement provide for each parent to have access to medical and academic information for each of the children;  that Article 5(a) of the Agreement provides that the parents shall share joint legal and physical custody of the minor children;  that therefore, by law, each parent has equal access to said information;  that the Agreement of the parties does not clearly and unequivocally require either parent to provide such information to the other party in that they are independently entitled to the same information from each source;  and that therefore, there has been no breach by the wife of Article 5 of said Agreement.

8. That Article 11(c) of the Agreement provides that:  “Within 60 days post day of dissolution, the parties shall file joint taxes through 2007 and share equally in any funds due.;” that in viewing the Agreement as a whole, in particular Article 11, it is clear that the parties are to share equally in the financial burden and that each must make full and fair disclosure regarding any audits or tax deficiencies;  and that the order is clear and unequivocal.

9. That the evidence demonstrates that joint state and federal income tax returns for the years 2005, 2006, and 2007 had not been filed as of the date of the dissolution;  that said returns were not filed within sixty (60) days therefrom;  that the wife has filed individual tax returns for said period;  that at a hearing before this court on September 13, 2010, regarding Motion # 147.00, the husband through his counsel indicated on the record that it was, in essence, withdrawing the Motion for Contempt, in that he was not seeking to have the parties file jointly, but rather simply to have copies of the wife's tax returns as filed, in order to compare them with his prior to filing that there would be no duplication of deductions, etc.  (TR, 9/13/10, 1–3 and 7);  that the evidence supports a finding that the wife complied with Judge Malone's order to produce;  and that the relief sought in Motion # 147.00 is therefore moot.

10. That Article 7 of the Agreement provides that the parties shall “equally pay the cost of college education for the children until each reaches the age of 23;” that the limitations of that responsibility and definitions of “college education” and “education expenses” therein conform to General Statutes § 46b–56c and it is therefore an educational support order within the meaning of the statute;  that under other provisions of Article 7 the parties agreed to cooperate as to choice of school and financial assistance;  that said provisions are not a condition precedent for the basic obligation to share financial responsibility for the cost of the education of any child;  that, in fact, the husband testified that as to education of the children from grammar school on, he left those decisions to the wife, and that his “cooperation came by my encouraging her to get student loans.”  (TR, 12/15/10, 1103–105);  and that the failure of the parties to cooperate on either or both issues may, however, be mitigating factors in the finding of contempt.

11. That Article 7 of the Agreement is a clear and unequivocal order of the court;  that the wife has incurred the sum of $10,432.00 as and for the first semester tuition, room and board, fees, etc., for the academic year 2010–2011 for their son James to attend the University of Connecticut;  that, in addition, she has obligated herself to pay an additional sum of $3,731.00 for student loans for said period;  that the husband's share of same is $7,081.00;  that the evidence demonstrates that the husband is in breach of his obligation thereunder, in that he has made no payment toward same;  that the evidence demonstrates that the parties have an inability to communicate and/or cooperate in a civil and productive manner;  and that the court finds that this mitigates against a finding of contempt.

12. That on March 1, 2010, the parties entered into a Stipulation (# 135.00) which became an order of the court, and which provided, among other things, that the husband would make monetary payments to the wife in accordance with a schedule set forth therein, with the balance secured by a note and mortgage deed;  that said Stipulation also provided that if the husband failed to comply in full, then the wife could seek an accelerated payment schedule;  that the wife has done so by way of Motion dated April 7, 2010 (# 138.00);  and that the wife seeks an enforcement of same by way of Motion # 179.00 dated November 3, 2010.

13. That the evidence demonstrates that the husband would not have the present ability to comply with an order accelerating payment of the note executed per Stipulation dated March 1, 2010;  that the only practical relief, under all the circumstances, would be payment from the husband's share of the net proceeds of a sale of the former marital residence or from the refinancing thereof;  and that therefore, the relief sought should be denied at this time.

14. That pursuant to Article 8 of the Agreement, among other things, the husband had the right to exercise an option to buy out the wife's interest in the former marital home, for terms specified therein, within two years of the execution of said Agreement, provided closing of title took place within 90 days from the notice of the exercise of his option;  that upon the failure of the husband to exercise said option, the property was to be listed for sale pursuant to said Agreement;  and that more than two years have elapsed and the husband has failed to exercise said option.

15. That pursuant to Article 9(c) of the Agreement, the parties agreed “to sell the 2003 Chevy Suburban and to share equally in any gain or loss associated with this vehicle” and “they shall share equally in the monthly payments until it is sold;  that the monthly payment is $468.00 and the husband's share is $234.00;  that the husband is in breach of said Agreement in that for the period March through December 2010 inclusive he has made one payment;  that there is therefore an arrearage of $2,106.00 as of December 15, 2010” (TR, 12/15/10, 181–83);  that under all the facts and circumstances, the husband's breach was wilful and without good cause and he is therefore found to be in contempt.

ORDER

The court having heard the testimony of the parties and considered the evidence, IT IS HEREBY ORDERED THAT:

1. Motions # 149.00, # 180.00, # 181.00, and # 182.00 are HEREBY DENIED as moot;

2. Motion for Contempt (# 144.00) is HEREBY DENIED for the reasons set forth herein;

3. Motion for Contempt (# 145.00) is HEREBY DENIED for the reasons set forth herein;

4. Motion for Contempt (# 147.00) is HEREBY DENIED for the reasons set forth above;

5. Motion for Contempt (# 152.00) is HEREBY GRANTED for the reasons set forth herein, and that commencing April 1, 2011, the husband is hereby ordered to repay the arrearage to the wife in the amount of $2,106.00 in increments of $50.00 per month, without interest, until paid in full.   In the event that there is a balance due and owing thereon at the time of the sale or refinance of the former marital home, said balance shall be paid in full from the husband's share of the net proceeds or the proceeds from the refinance, as the case may be;

6. Motion for Contempt (# 160.00) is GRANTED IN PART for the reasons set forth above, and that commencing April 1, 2011, the husband is hereby ordered to repay to the wife the sum of $7,081.00 in increments of $500.00 per month, without interest, until paid in full.   In the event that said there is a balance due and owing thereon at the time of the sale or refinance of the former marital home, said balance shall be paid in full from the husband's share of the net proceeds or the proceeds from the refinance, as the case may be.   The preceding order applies to the balance due for tuition, room and board, etc. for James's first semester for the academic year 2010–2011.   The court will reserve jurisdiction regarding the implementation of this order;

7. Motion for Modification (# 178.00) is HEREBY GRANTED IN PART for the reasons set forth herein.   IT IS HEREBY ORDERED THAT the husband shall have 45 days from the date of this order in which to apply for and to obtain a firm commitment to provide sufficient financing to purchase the wife's interest in the former marital home.   In the event that he has not obtained such a commitment within said period, the house shall be immediately listed for sale under the same terms and conditions as set forth in Article 8(d)3 of the Agreement.   The husband shall have the right to exercise his option to purchase at any time prior to receipt of a bone fide offer to purchase, with no unusual conditions attached, consistent with the provisions of Article 8(d)3 of the Agreement.   The husband shall cooperate fully in the listing and sale process, including but not limited to, the signing of a listing agreement, the execution of any deeds, affidavits, and contract of sale;  maintaining all areas of the premises, inside and outside, in optimal condition for showing to prospective purchasers, as may be recommended by the listing broker, securing any pets in crates or off premises, and the installation of a lock box.   The court will reserve jurisdiction regarding the implementation of this order, including the applicable provisions of Article 8 of the Agreement regarding the sale and division of the net proceeds therefrom, as well as its power to enter appropriate orders pursuant to General Statutes § 46b–66a if necessary to enforce its orders;  and

8. Motion for Order (# 179.00) is HEREBY DENIED for the reasons set forth herein.

Shay, J.

Shay, Michael E., J.