Christine Carollo v. Joseph Carollo (2011)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR CONTEMPT, PENDENTE LITE DATED JANUARY 26, 2011(168);  PLAINTIFF'S MOTION FOR ORDER, POST–JUDGMENT, DATED MARCH 8, 2011(174);  PLAINTIFF'S MOTION TO COMPEL, POST–JUDGMENT, DATED MARCH 30, 2011(176);  PLAINTIFF'S MOTION FOR CONTEMPT, POST–JUDGMENT, DATED APRIL 4, 2011 (176.10);  PLAINTIFF'S MOTION FOR CONTEMPT, POST–JUDGMENT, DATED APRIL 7, 2011 (176.30);  PLAINTIFF'S MOTION FOR ORDER, POST–JUDGMENT, DATED APRIL 7, 2011 (176.40);  and DEFENDANT'S MOTION FOR CONTEMPT, POST–JUDGMENT, DATED APRIL 22, 2011 (176.50)

The above motions were filed after the completion of a limited contest dissolution trial held on January 11, 13 and 14, 2011 before the court.   The court incorporates by reference the factual findings made after the conclusion of the trial as set forth in the Memorandum of Decision dated February 16, 2011(170).

The court conducted a contested hearing on the motions on May 11, 2011.   The plaintiff was represented by counsel.   The defendant was self represented.   After concluding his presentation of evidence in his defense of the plaintiff's motions and in his case in chief on his motion, he asked the court to continue the hearing to permit him to obtain counsel.   The plaintiff objected.   The court, in its discretion, denied the motion.

The court is compelled to comment on the credibility and conduct of the defendant.   His credibility is suspect, at best.   As noted in the February 16, 2011 memorandum of decision, neither party has acquitted themselves well during the pendency of the proceedings.¹  The court finds, in general and as will be set forth below with some particularity, he has taken every opportunity presented to him to thwart the orders of the court.

Additional facts will be set forth below as necessary.

A. Plaintiff's Motion for Contempt, Pendente Lite dated January 26, 2011(168)

Plaintiff alleges the defendant is in contempt for failing to pay the expenses as ordered by J. Fischer, J. on April 21, 2010(122) for which the defendant was held in contempt by Adelman, J. on November 20, 2010(154).   The defendant is alleged to have failed to pay expenses, including the car payments on the Saab and the bills for the Rhode Island home.

The court in the February 16, 2011 decision found the defendant had “in violation of pendente lite orders, failed to pay alimony and household bills on time resulting in, among other consequences, the homeowner's insurance on the Rhode Island home being cancelled, a lapse in car insurance, and a repossession notice being sent on the Saab.” (Page 5.)

The defendant still has not complied with the orders of Judges Fischer and Adelman.   The plaintiff is the obligor under the Saab loan which the defendant was ordered to pay.   In the February 16, 2011 memorandum, the defendant was ordered to hold the plaintiff harmless from debt secured by the Saab. The plaintiff received a default and repossession notification dated April 28, 2011.  (Exhibit 3.) The defendant believed the loan had been paid in full at some point after February 16, 2011;  apparently it was not.

“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).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263, 271, 661 A.2d 621 (1995).  “The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court ․ One cannot be placed in contempt for failure to read the court's mind.”  Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).   “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.”  Wilson v. Wilson, supra, 38 Conn.App. 275–76;  Niles v. Niles, 9 Conn.App. 240, 253–54, 518 A.2d 932 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).

The court finds the existence of a valid court order dated April 21, 2010.   The court further finds the language requiring the payment of the “non-discretionary bills that are customary, including but not limited to, mortgages, utilities, real estate taxes, quarterly taxes, insurances, car payment (Saab)” to be clear and unambiguous.  (Order 122, page 2.) Judge Adelman, on November 19, 2010, further ordered the parties to equally share the cost of third-party security retained to accompany the plaintiff while she removed her personal belongings from the Glastonbury home.   The credible evidence is the defendant did not keep the Saab payments current, did not pay the fourth quarter of the Rhode Island taxes, failed to pay an AT & T bill resulting in an early termination charge and failed to pay his share of the police escort utilized during the time the plaintiff removed her property.   The court, accordingly finds the defendant violated the terms of a valid, clear and unambiguous court order.

The defendant established, through the testimony of his assistant, he intended to pay the Saab loan.   The court finds the defendant's failure to pay the Saab loan (in this instance) not a willful violation of a court order.   Notwithstanding such finding, the court, in the exercise of its remedial discretion, orders the balance due on the Saab to be paid in full.

The court finds the defendant willfully failed to pay the sum of $158 for the AT & T early termination fee;  $119 for the police escort and $1,724 for the fourth quarter of the Rhode Island taxes for a total of $2001.   The defendant is found to have the ability to have paid the same.

The court finds the defendant in contempt of the court's orders and the Plaintiff's motion is GRANTED.

B. Plaintiff's Motion for Order, Post-judgment dated March 8, 2011(174)

The plaintiff filed a motion requesting the court enter an order that all student loans obtained by the parties be equally shared.   The defendant disclosed on his financial affidavit at the time of the dissolution trial two loans for Jennifer he had co-signed, for an aggregate liability of approximately $46,000.   The court's memorandum of decision, in dividing all assets and liabilities of the parties known to the court, ordered the parties to share such loans to the extent Jennifer does not pay the same.

The plaintiff, in September 2010, months before the dissolution trial, co-signed another student loan for Jennifer in the approximate amount of $32,500.   She, however, did not disclose the same on her financial affidavit.²

As evidence in the dissolution trial has closed and judgment has entered, the motion for order, post-judgment is DENIED.

C. Plaintiff's Motion for Contempt, Post-judgment dated April 4, 2011 (176.10)

The plaintiff requests the court hold the defendant in contempt for failure to pay $10,000 to the plaintiff when due.   The February 16, 2011 memorandum requires a payment of $10,000 on April 1, July 1 and October 1, 2010(sic) and the balance to be paid on December 30, 2011.   The court takes this opportunity to fix a scrivener's error—the installment payments of $10,000 are due April 1, 2011, July 1, 2011 and October 1, 2011.

The credible testimony is the defendant previously stated the $10,000 check was mailed on or about April 1, 2011.   That was not true.   The defendant had his assistant hand the plaintiff a check in the amount of $8,738.90 on or about April 4th or 5th, 2011.

As noted above, the check delivered by the defendant was not for the full amount of the required installment.   The defendant used self help and deducted sums therefrom for amounts he claims the plaintiff owes him for her failure to pay expenses.

The order of the court for the payment of the $10,000 was clear and unambiguous.   There was no provision for the defendant to offset therefrom any amount he believes to be payable by the plaintiff.   He may exercise the remedies available to him at law;  he may not take matters into his own hands and make his own deductions from court ordered payments.   The court finds the defendant had the ability to comply with the orders of the court and chose not to do so.

The defendant is in contempt for failure to pay the $10,000 installment of lump sum alimony.   The plaintiff's motion is GRANTED.

D. Plaintiff's Motion for Contempt, Post-judgment dated April 7, 2011 (176.30)

In the February 16, 2011 memorandum the court ordered the sale of the parties' Glastonbury home.   The defendant, who maintains his accounting office in a portion of the home, was awarded the exclusive right to occupy the home.   He testified the parties' daughters are returning to live in the home;  Jennifer is going to work in his accounting office (and presumably will then be able to pay her student loans—including the loan co-signed by the plaintiff) and Cassandra will be living there during the summer break from school.

The home was listed for sale in early March 2011 in an effort to take advantage of the spring selling season.   The credible evidence is the defendant is continuing his pattern of obstructionism.   The court ordered the parties to “actively participate in the sale of the property with the intent of selling the property as quickly as possible.”   The defendant has not maintained the property in a condition that is at all acceptable with respect to the property being shown for sale.   The home requires a good spring cleaning, the clutter needs to be picked up, and the driveway, yard and paddock area need to be placed in presentable condition.   He needs to treat the sales associate trying to sell the home with civility.

The plaintiff, a real estate associate, prepared the listing agreement.   In an effort to accommodate the defendant (and presumably to allow time for the property to be placed in show worthy condition) required twenty-four hours notice before sale and set only one open house per month.   The executed contract was not presented as evidence, but there was no testimony that there is a time is of the essence clause contained therein.   The defendant has refused to show the property when less than twenty-four notice has been given—on one occasion he refused a showing because only twenty-two hours notice has been given.   He is quick to point out that he is within his rights to refuse a showing unless twenty-four hours notice is given.   It does not go unnoticed by the court that he is unbending when it comes to deadlines being met that he believes are for his benefit, but he is unwilling or unable to meet deadlines imposed by the court for the benefit of others.

The court finds the defendant has failed to work cooperatively in an effort to sell the home as quickly as possible.   There is a clear and unambiguous court order.   There was nothing preventing the defendant from complying with the order.   His noncompliance was willful.   The defendant is in contempt for failing to comply with the court's order to work cooperatively to have the home sold.   The plaintiff's motion is GRANTED.

E. Plaintiff's Motion for Order, Post-judgment dated April 7, 2011.

The plaintiff's attorney continues to hold, in escrow, the sum of $3,463 following the orders of Judge Fischer (122).   The court orders the proceeds be released from escrow and applied as follows:  the amounts necessary to satisfy the obligations of the defendant to pay off the Saab and to pay unpaid motor vehicle taxes shall be transmitted by the plaintiff's attorney to the lender and to the appropriate tax collector.   Any remaining sums shall be shared equally by the parties.   The motion for order is GRANTED.

F. Defendant's Motion for Contempt, Post-judgment dated April 22, 2011 (176.50)

The defendant seeks to have the court hold the plaintiff in contempt for failing to pay for homeowner's and flood insurance on the Rhode Island property;  failing to turn over the title to the Saab to him and failing to pay her portion of Jennifer's student loans allocated to her in the February 16, 2011 memorandum of decision.

The February 16, 2011 memorandum requires the plaintiff to pay the homeowner's insurance and taxes on the property from and after the date of the order.   To the extent taxes and insurance premiums accrued prior to February 16, 2011, the defendant, pursuant to the pendente lite orders of Judge Fischer is responsible for the same—no matter when payable.   To the extent the same accrue after February 16, 2011 and are, of necessity therefore payable after February 16, 2011, the plaintiff is responsible for the same.

The credible evidence at the hearing was the plaintiff experienced difficulty in obtaining insurance on the Rhode Island property due to the lapse in coverage during the period for which the defendant was to maintain the insurance and due to the number of automobile accidents by the defendant or others while driving his motor vehicles.

There is a clear and unambiguous court order requiring the plaintiff to maintain homeowner's insurance;  there is no clear and unambiguous order requiring the payment of flood insurance nor was there proof proffered that flood insurance is required for the property.   The defendant did not produce evidence of a willful violation of the court order by the plaintiff.   Further, the defendant, by failing to pay the insurance premiums pendente lite has unclean hands and militates against a finding that the plaintiff is in contempt.  “[F]or a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with ‘clean hands.’   “ Pappas v. Pappas, 164 Conn. 242, 246 (1973).

The claim the plaintiff is in contempt for failure to deliver the title to Saab merits little discussion;  the evidence established the loan secured by the Saab has not been satisfied and therefore it is elemental the title to the Saab remains with the lender.   The plaintiff is unable to comply with a valid court order by virtue of the defendant's failure to pay off the Saab—despite his mistaken belief that he had done so.

As to the claim the plaintiff has not paid any amount toward Jennifer's student loans which were shared by the parties, the court order requires the parties to share the loan equally to the extent Jennifer is not paying the same.   There was no evidence offered as to whether Jennifer is paying the loans and further the plaintiff testified she had not been provided with the information to make the payments.

The court does not find the plaintiff to have willfully and intentionally violated the orders of the court.

The defendant's motion for contempt is DENIED.

ORDERS

1. The defendant is to pay to the plaintiff the sum of $2,001 on or before June 15, 2011.

2. On or before June 15, 2011, the defendant is to pay the sum of $950 to the plaintiff for legal fees incurred in connection with the following motions:  168, 176.10 and 176.30.

3. The defendant is ordered to pay to the plaintiff the sum of $1,261.10, representing the amount of the deductions wrongfully taken from the $10,000 installment payment due to the plaintiff on April 1, 2011.   The payment is to be made on or before June 15, 2011.

The defendant is ordered to pay the remaining installments of lump sum alimony when due and without deduction.   Due to the habitual failure of the defendant to make payments when due (witness, among other things, the contempt finding by Judge Adelman), the court orders in the event the defendant fails to pay any installment, in full, on or before the date when due, a penalty of $50 a day shall be assessed and payable for every day or part thereof until the installment has been paid in full.

4. The defendant is ordered to maintain the Glastonbury home in good, clean and clutter-free condition.   He is ordered to have the potholes fixed in the driveway—to the extent they have not already been so.   The pool is to be opened and maintained.   The plaintiff is allowed to go on the property from time to time to fix the fencing and to maintain the barn and paddock area of the property;  he is not to interfere with her doing so.

The court orders the defendant to permit the selling associate, Ms. Mattison, or her designee on the property and into the house, including all areas thereof, and the barn and other outbuildings, provided not less than twelve hours notice is given, to inspect the house and the property to determine if it is in good, clean, clutter-free and saleable condition.   Ms. Mattison or her designee may inspect the house and property from time to time, but not more than two times per week.   If Ms. Mattison reports to the parties that the property is not in such condition, either party may, but is not required to, request the court to schedule a date for the parties to report back to the court the findings of Ms. Mattison.   In the event the court finds, based on credible evidence, the defendant has failed to put and maintain the house and surrounding property in good, clean, clutter-free and saleable condition, the court may order an appropriate reduction in the sales price of the home which shall be attributable to the defendant and deductible from his proceeds.   The court may order further and future inspections of the home and if the defendant continues to fail to maintain the property and cooperate with the efforts of the sales associate in selling the property the court may order the defendant to vacate all areas of the home, except for his office.   In the event such an order issues, and until further order of the court or until the sooner sale of the property, the defendant will thereafter be entitled to only enter and occupy his office area and only through the separate entrance to the office area.³  He will remain responsible for all expenses incurred in connection with the operation and maintenance of the house and property until the sale thereof.

5. The past due motor vehicle property taxes and the balance due on the Saab shall be paid by the plaintiff's attorney from the $3,463 held in her escrow account.   The balance shall be shared equally between the parties and disbursed to them.

6. The plaintiff upon receipt of the Saab title from the lender is ordered to deliver the same to the defendant within ten days of receipt.

7. The defendant shall deliver to the plaintiff's attorney the information necessary for the plaintiff to timely pay her share of Jennifer's student loans as and to the extent Jennifer does not pay the same.   The plaintiff is ordered to pay the same in accordance with the February 16, 2011 memorandum.

SO ORDERED.

BY THE COURT,

OLEAR, J.

FOOTNOTES

FN1. As to the plaintiff's conduct, the court finds credible the testimony of the defendant's assistant that the plaintiff, during a break in the proceedings, whispered to the defendant something akin to “HD Vest—IRS” which the defendant interpreted as a threat to call the IRS on one of his entities.   The court does not condone such conduct.   The defendant claims the plaintiff has also failed to comply with court orders, but other than his motion for contempt captioned above, he has not brought such failures before the court..  FN1. As to the plaintiff's conduct, the court finds credible the testimony of the defendant's assistant that the plaintiff, during a break in the proceedings, whispered to the defendant something akin to “HD Vest—IRS” which the defendant interpreted as a threat to call the IRS on one of his entities.   The court does not condone such conduct.   The defendant claims the plaintiff has also failed to comply with court orders, but other than his motion for contempt captioned above, he has not brought such failures before the court.

FN2. The court acknowledges there were errors and omissions in both parties' affidavits but does not find that a sufficient basis to grant the motion for order..  FN2. The court acknowledges there were errors and omissions in both parties' affidavits but does not find that a sufficient basis to grant the motion for order.

FN3. The defendant is encouraged to be seeking office space in which to relocate his business as it is the intention of the court that the property be sold—which will, in all likelihood, necessitate the relocation of his business..  FN3. The defendant is encouraged to be seeking office space in which to relocate his business as it is the intention of the court that the property be sold—which will, in all likelihood, necessitate the relocation of his business.

Olear, Leslie I., J.