Lisa Love v. Robert Corroon (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT (# 137)

In plaintiff's Motion for Contempt (# 137), dated January 13, 2011, the defendant admitted that as of the hearing date he had not transferred all of the retirement funds to the plaintiff as required.   This applied to both the Vanguard Account as well as the Merrill Lynch account.   Despite the plaintiff's exhortations the defendant simply refused to comply.   It should be noted that the separation agreement and judgment was entered more than five and one-half (5 1/2) years ago.   Without offering any credible excuse the wilfulness of his contempt is borne out by his testimony.   On direct examination the defendant testified that he didn't transfer the Merrill Lynch 401(k) to the plaintiff “because the loan had not been paid off and I assumed that the loan had to be paid off before I could transfer it.”   The date of the dissolution judgment is November 21, 2005.   This testimony was given in March of 2011.   The first time the defendant submitted the paperwork to transfer his interest in his 401(k) to the plaintiff was some three weeks prior to this court's hearing on March 25, 2011.   The willfulness of his contempt for this court's orders is beyond dispute.   On cross-examination, when asked if he ever went to the offices of the Vanguard funds to make sure those transfers occurred, he responded:  “It was not necessary for me to go.”   When pressed further for a direct response to the simple question whether he ever went to the offices of Vanguard to make sure he had complied with this court-ordered obligation, he answered:  “Absolutely not.”   This indicates an intentional non-compliance and disregard for this court's judgment.

The defendant's attitude toward his obligations under this court's order was further demonstrated earlier in the proceedings before this court.   As Paragraph 8.1b of the judgment indicates, “the Wife shall retain the following assets free and clear of any claim by the Husband” including, in particular, “the marital home located on Cross Highway, Fairfield, CT.” On direct examination the plaintiff testified that the defendant had failed to transfer title to that property right after the divorce.   Consistent with his pattern of non-compliance the defendant did not transfer the title to the real property on Cross Highway until five and a half (5 1/2) years after the date of divorce and only after the plaintiff had sold the home and pressed him to transfer title.

There is no dispute regarding the defendant's failure to transfer all of the retirement funds to the plaintiff as required pursuant to the dissolution judgment and the evidence as a whole clearly shows that his non-compliance is willful.   The plaintiff has incurred substantial counsel fees.   This court shall reserve jurisdiction until after the plaintiff has possession of all of those retirement funds to determine whether further sanctions should issue to make the plaintiff whole.   See Sardilli v. Sardilli, 16 Conn.App. 114, 120 (1988);  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988) (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).

Motion for Contempt (# 132)

The Court finds that the defendant has failed to pay his share of the expenses for the Vermont property.   Exhibit 16 shows that the total of expenses that the plaintiff has paid through the past several years without any contribution from the defendant.   The defendant stopped paying his share of the Vermont expenses in 2008.   At the hearing the defendant claimed that he did not “remember” instructing the property manager to send all bills for the Vermont expenses to the plaintiff.   It was only after he was shown the property manager's letter that he admitted instructing the property manager in October of 2008 to stop sending any bills for Vermont to him and send all those bills to the plaintiff.

Regarding his failure to pay any expenses throughout the past several years, the defendant argues that the plaintiff didn't give him the bills.   This argument is disingenuous particularly because the defendant simultaneously seeks a finding of contempt against the plaintiff because he was deprived of the use of that property.   He admitted that he completely stopped paying any of the expenses for that property in 2008.   He admitted that he voluntarily stopped using or attempting to use that property as of 2008.   The evidence demonstrates that the plaintiff relied upon the defendant's decision to waive and relinquish his right to further use of the Vermont property.   In this regard, the plaintiff sent numerous emails to the defendant confirming that she was expecting a document confirming that fact.   The plaintiff solely paid all of the expenses for that property from 2008 to the present date.

Toward the end of the two-day hearing, the defendant admitted that he “chose not to use the Vermont property” and that “I would be willing to pay for the period of time where I chose specifically not to go.”

In conclusion, with respect to the issues raised in the plaintiff's Motion for Contempt (# 132), the Court makes the following finding:

1. The total amount that the plaintiff has paid solely throughout the past several years is $52,181.02.

2. The total owed from the defendant to the plaintiff for his share of the Vermont expenses is $26,090.51 which is one-half of that total.   The defendant is ordered to pay $26,090.51 within three weeks of the date of this Court's judgment.

Motion for Contempt (# 131):  Motion in Limine Re Interpretation of Judgment

On November 21, 2005, this Court ordered in Paragraph 8.1b of the Dissolution Judgment that:  “The husband shall remove himself as a co-trustee on the Vermont property so that the wife shall remain as sole custodian.”   Judgment, Paragraph 8.1b. As the record indicates, three full years after the date of that judgment, the defendant caused to be prepared and recorded a deed whereby he took title as a “joint tenant with rights of survivorship.”  (Exhibit 12.)   The evidence further established the plaintiff repeatedly sent emails requesting his compliance with the judgment.   The evidence also reveals that, at times, the defendant told the plaintiff that he had signed all of the deeds necessary to comply with the terms and provisions of the judgment.  (Tr. 3/24/11, p. 126–27.)   Exhibits 9, 10, and 11 show the plaintiff's repeated attempts throughout the year immediately following the divorce to get the various deeds and documents that the Court ordered the defendant to sign.   The plaintiff retained other attorneys and returned to court on a prior occasion in an effort to secure the defendant's compliance.   Exhibit 9, an email from 2006, shows the numerous items that the plaintiff had not yet received from the defendant, including:  transfer of the title to the Cross Highway property;  the Vermont property;  the retirement funds, etc.  (Ex. 9).   Likewise Exhibit 10 reflects her efforts nearly one year after the date of this court's judgment to secure the defendant's compliance with the judgment.

The plaintiff testified that she had absolutely no knowledge of the defendant's scheme to obtain a substitute deed for the Vermont property.   She had no knowledge before the deed was prepared and she had no knowledge prior to the deed being recorded on the Vermont land records.   The defendant kept secret all of this activity resulting in creation and recording of a substitute deed.   As the plaintiff testified, the first time that she learned that the defendant had created and recorded a substitute deed for the deed that was in effect as of the date of the divorce was during the defendant's deposition a few weeks before this court's hearing.  (Tr. 3/24/11, p. 131–32.)

After this court ordered that the defendant shall remove himself from that property so that the wife shall remain as sole custodian, the defendant unilaterally engaged in a scheme that resulted in his ownership of that property as a “joint tenant” three years after the date of that court order.   The defendant knew that this court had rendered a judgment and he was fully aware that he was obligated to comply with that judgment.   Under these circumstances engaging in a transfer of this nature with knowledge of the Dissolution judgment is a fraudulent transfer.  Molitor v. Molitor, 184 Conn. 530 (1981).

The plaintiff opted to enforce her rights by filing a Motion for Contempt (# 131) dated 11/29/10.   The sole issue in this case is whether the defendant has complied with the judgment or not.   This is a question of enforcement of a court order pursuant to the plaintiff's Motion to Contempt (# 131).

On cross examination, the defendant initially refused to admit the simple fact that the Vermont property is not listed anywhere in Paragraph 8.1a of the judgment.   That paragraph begins with the words:  “The husband shall retain the following assets ․” but the Vermont property is not listed under “his” assets.   After extensive examination the defendant admitted that the Vermont property is not listed amount “his” assertion Paragraph 3.1a (Tr. 3/15/11, p. 64.)

Paragraph 8.1b of the judgment required the defendant to “remove himself” as co-trustee of the Vermont property for the specific purpose of leaving the plaintiff as the sole custodian of that property.   Paragraph 8.1b begins with the statement:  “The wife shall retain the following assets free of any claim by the husband.”   Judgment, Para, 8.1b. The Vermont property is listed among those.   It is also beyond question that the attorneys drafted the separation incorporating verbatim from the warranty deed the exact language that described the ownership status of the parties pursuant to that warranty deed.  (Exhibit 8.) In her Memorandum of Law Re:  Contract Interpretation dated March 24, 2011, the plaintiff presented the governing case law and the arguments related to that law as applied to the facts of this case.   In particular the law clearly provides that unless the language of a contract is ambiguous, it is not legally appropriate to look beyond that language.  Isham v. Isham.  Id. Courts do not rewrite contracts.  Id.

It is important to note that the defendant has previously made the same arguments to Judge Winslow that he is currently making.   For example, he attempted to argue that this judgment is “unenforceable.”   In response, referring specifically to the contract language “the defendant shall remove himself.”   Judge Winslow asked:  “Whether it's enforceable or not, what do you think it's meant to accomplish?   Why is it in there?”  (Tr. 1/27/11, p. 5.) When Judge Winslow pressed the defendant's counsel for an answer to the question regarding whether his client was “on the deed in some manner” he replied:  “He is on the deed now as a joint tenant with rights of survivorship ․” He also asked how his client could possibly comply with that provision now that his client unilaterally and secretly changed his status on the deed.  (Tr. 1/27/11, p. 5.)

Judge Winslow's question to the defendant's counsel is the question that our Supreme and Appellate Courts would ask, namely, “What does this mean?  ․ What does it mean that he's to remove himself?   Why is the reason it's in here?   What's its purpose?   What's it supposed to accomplish?”   Our law requires courts to interpret contracts so that no term is rendered meaningless or superfluous.

“The mere fact that parties advance different interpretations of the language in question does not necessitate the conclusion that the language is ambiguous.”  Eckert v. Eckert, 285 Conn. 687, 692 (2008).  “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  Id. “In construing contracts, we give effect to all the language included therein, as the law of contract interpretation ․ militates against interpreting a contract in a way that renders a provision superfluous,” O'Connor v. Waterbury, 286 Conn. 732, 743.   Quoted in Isham v. Isham, 292 Conn. 170, 182 (2009).

In that same colloquy with Judge Winslow, the Court eventually ruled:  “We're not going to have an interpretation that renders that sentence meaningless and your argument is it's meaningless;  that's not going to happen.”  (Tr. 1/27/11, p. 9–10.)   That is a correct statement of the law and it is no less correct today than it was when Judge Winslow made that ruling or on the numerous occasions when our Supreme and Appellate Courts rendered judgment to that same effect.   See, e.g. Isham v. Isham, 292 Conn. 170–82 (2009).

Regarding the threshold question whether the language of this contract is ambiguous, Judge Winslow ruled:

THE COURT:  Frankly, I don't see any ambiguity in the document itself.

THE COURT:  It's a question of law;  it's not going to require any evidence.  (Tr. 1/27/11/ p. 7.)

To circumvent the rulings of the court (Winslow, J.) The defendant now relies upon a claim based on the law of the Trusts, which is inapplicable to this case.   When he made that same claim before Judge Winslow, namely, that there was “no trust,” Judge Winslow responded, “There doesn't have to be a trust agreement in writing for there to be a trust.   You know that.”  (Tr. 1/27/11, p. 3.)

In his Memorandum of Law, the defendant has misconstrued and erroneously applied the law of this state relative to trusts.   As Justice Bordon wrote in Palozie v. Palozie, 283 Conn. 538, 545 (2007), “one owning property can create an enforceable trust by a declaration that he holds the property as trustee for the benefit of another person.”   In the present case there are two such “declarations.”   First, the warranty deed (Exhibit 8) satisfies this test.   And, second, Paragraph 8.1b of the Separation Agreement satisfies this test.   As both documents clearly state, the parties intended to hold the Vermont property as “Co–Trustees” for the benefit of the children.   If there was no such “trust,” then it would be unnecessary for the Separation Agreement to state that the defendant “shall remove himself as Co–Trustee.”

The law regarding interpretation of trust instruments is similar to the law concerning interpretation of contracts.  “To determine whether [the Settlor] manifested an intent to create a trust and to impose upon herself the enforceable duties of a trustee, we begin with the language of the trust instrument.”  Palozie v. Palozie, 283 Conn. At 546;  citing Heferman v. Freedman, 177 Conn. 476, 481 (“The issue of intent ․ is to be determined by examination of the trust instrument itself and not by extrinsic evidence of actual intent”).

A review of the specific language of Paragraph 8.1b of the Separation Agreement combined with the exact same language of the warranty deed in existence when the parties drafted their separation agreement indicates that they intended to hold the Vermont property in trust for the benefit of the children.   Whether some other document entitled “Trust” existed in trust for the benefit of the children is irrelevant.   The intention of the parties is evident from the Separation Agreement and the Warranty Deed upon which that agreement was drafted is irrelevant.   The intention of the parties is evident from the Separation Agreement and the Warranty Deed upon which that Agreement was drafted.

This situation is analogous to a trust created under a will.   It is common practice for a will to provide that certain property will be held in trust after the testator's death and it is commonplace for trustees and courts to adopt and enforce that language without any separate document labeled “trust.”   Likewise, trustees create accounts pursuant to wills under which trusts are created notwithstanding the lack of any additional or separate “trust” document.   The only question for this court involves the plain language of thee documents, namely, this Separation Agreement and the Warranty Deed upon which that Agreement was based, both of which express the intention of the parties.   In the present situation as in the case of a trust created under a will, there is no need for a separate document with the title of “Trust.”   The defendant's suggestion of “ambiguity” is simply incorrect and erroneous as a matter of law.

The language of the contract is not ambiguous.   Because the defendant opened that door, the plaintiff in rebuttal offered testimony that the reason why paragraph 8.1b of the Separation Agreement list the Vermont property among “her assets” was that the plaintiff's mother gave her the funds with which to purchase that Vermont property.  (Tr. 3/25/11, p. 5.) That evidence was not refuted or disputed.   The plaintiff also testified without contradiction that after she obtained the money from her mother for that purchase, she gave the money to the defendant who went to the closing.  (Tr. 3/2/11, p. 69–70.)   Importantly, both parties testified that the original deed from the closing was incorrect and they both contacted the closing attorney in Vermont to obtain the deed that referred to them as “co-trustees” for the benefit of the children.   (Tr. 3/25/11, p. 70;  Tr. 3/25/11, p. 54–55.)   The resulting deed, namely, referring the parties as “co-trustees” was created pursuant to the intentions and instructions of the parties to the Vermont closing attorney.  (Tr. 3/25/11, p. 70;  Tr. 3/25/11, p. 54–55.)   This court rejects this defendant's newfound “claim” underlying either the original 1998 Warranty Deed or the 2005 Separation Agreement.

Consistent with all of the evidence, the equitable distribution of the Vermont property is reflected in paragraph 8.1b which states in pertinent part that:  “The wife shall retain the following assets free of any claim by the husband” and the husband “shall remove himself” and “the wife shall remain as sole custodian.”   Judgment, para. 8.1b. As Judge Winslow has already correctly concluded, this language is clear and unambiguous.

As the Supreme Court's decision in Isham v. Isham establishes, courts do not interpret contract terms in a manner that would render any term “superfluous.”  Id. In this regard, it is obvious that the terms and provisions in paragraph 8.1b was intended to accomplish the purposes of:  (a) untangling the ownership rights of the parties subsequent to this divorce;  and (b) eliminating the defendant from legal title “so that the wife shall remain as the sole custodian.”   If this court were to find that the defendant somehow retained “legal title” to the Vermont property, both of these purposes would be rendered superfluous and meaningless.   Based on the defendant's fraudulent conduct, he is now seeking to defeat both of these purposes.   First, by causing a new deed to be drafted and signed, he has defeated the purpose of separating or untangling the ownership right of the parties.   And, second, by this means he has also defeated the purpose of the provision whereby the wife “shall remain as sole custodian.”

The result that the defendant seeks also frustrates the intention of the Agreement whereby the plaintiff retained the right to list and sell the Vermont property as the Judgment clearly provides.   To address and rectify that problem, the plaintiff filed a Motion for Contempt (# 133).

With regard to the instant Motion for Contempt, (# 131), the Court finds that the defendant is in contempt and orders that:

1. The defendant shall immediately execute a deed conveying to the plaintiff any and all of his right, title and interest in and to the Vermont property.

2. The defendant shall pay any and all fees, costs or expenses associated with creating and recording that deed as well as fees and expenses necessary to obtain the defendant's compliance with this Court's judgment.

Motion for Contempt (# 133) Obstruction of Plaintiff's Right to Sell Vermont Property

The plaintiff testified that she had made efforts to list and sell the Vermont property however, those efforts were thwarted because the defendant never transferred legal title to her.   Moreover, she was informed that the Realtors in Vermont could face sanctions if they proceeded with a listing at this time because of the present status of the deed, i.e., reflecting the defendant as a “joint owner with rights of survivorship.”   In addition, as a direct consequence of the defendant's frustration of her efforts over the years to list and sell that property, it has decreased in value by $200,000 to $300,000.  (Tr. 3/25/22, p. 50.)

Thus, because he did not comply with the judgment and because he is now a joint owner, the plaintiff's efforts to list and sell the property have been frustrated.

The plaintiff has filed a Motion for Contempt (# 133) dated 12/2/10 in which she has presented her claims for sanctions arising from the defendant's obstruction of her ability to sell the Vermont property.

Attorneys Fees

The plaintiff claims to have incurred attorneys fees in excess of $29,000 up to and including the date of the hearing as well as additional fees related to the post-hearing briefs.   Plaintiff's Affidavit of Attorneys Fees claims the totals for the current representation as well as the representation provided by lawyers in Connecticut and Vermont related to this matter.   Absent objection the Court shall enter an order awarding attorney fees to the plaintiff unless the defendant notifies the court within 10 days from the date of this judgment that he wants to be heard.

Based on all of the evidence, the defendant's failure to comply with numerous court orders in this Court's judgment is willful and intentional.   The plaintiff seeks an Order directing the defendant to reimburse her for all of the attorneys fees, costs and expenses that she has incurred in her efforts to secure the defendant's compliance with this court's judgment.   Because the defendant has not yet transferred the retirement assets, the Court orders compliance and reserves judgment to determine if further sanctions should issue.   This Court reserves jurisdiction to determine the extent to which the plaintiff shall be awarded damages arising from the defendant's obstruction of her right to sell the Vermont property.

Defendant's Motion for Contempt

The record in this case demonstrates that the defendant's testimony in support of his Motion for Contempt is not credible and an abundance of evidence demonstrates that the plaintiff relied to her detriment upon the defendant's words and conduct throughout the period from February of 2008 to the present date.   The plaintiff acted in reliance upon the words and conduct of the defendant and the evidence demonstrates there was no evidence of her interest to disobey the Court's order.

The plaintiff testified that around October of 2008 when she was facing an outlay of $20,000 for the taxes and expenses associated with the Vermont property, the defendant told her that his lawyer was drafting a document that confirmed he was relinquishing his rights, he was no longer interest in using the property, and he was no longer going to pay the bills.  (Tr. 3/24/11, p. 67.)   The Court finds credible her claim that she kept asking for that document because that was a lot of money and she was “going out on a limb” paying that entire amount herself.  (Tr. 3/24/11, p. 67–68.)   Eventually, she hired an attorney who told her that when the defendant stopped paying any of the Vermont expenses in March of 1998 and told the plaintiff that he was “out,” the defendant had relinquished his rights and the contract was broken.  (Tr. 3/24/22, p. 68.)   In reliance upon that advice, she went forward on that basis and paid all of the expenses on her own.  (Tr. 3/24/22, p. 69.)

The Court finds the plaintiff fully believed that the defendant had, in her words, “signed off” on further use of the Vermont property.  (Tr. 3/24/11, p. 83.)   This claim is not intended to establish that he actually “signed” anything.   Rather, all of this evidence was presented to show her state of mind.   Based on all of this testimony coupled with her numerous emails showing that she had asked repeatedly for him to follow through and send the document from his lawyer combined with her payment of all the expenses in reliance upon legal advice she had received, it is clear that the plaintiff had absolutely no intent to refuse to comply with thus Court's orders.   The defendant himself admitted that he thought he had relinquished his right to use that property.   His conduct including his failure to pay any of the expenses after 2008 and his voluntary decision to stop using that property further corroborates her belief and her state of mind.   The Court noted as much when ruling that this “kind of conduct on her part ․ Would be evidence of her lack of willfulness.”  (Tr. 3/24/11, p. 94.)   The plaintiff's additional emails from September 23, 2008, (Ex. 6–7) reflect her state of mind, namely, her expectation that she would be receiving a document from his lawyer confirming that he had relinquished his right to use the Vermont property.  (Tr. 3/24/11, pp. 96–96.)   From February of 2008 up to and including the fall of 2010, when she was served with the defendant's Motion for Contempt, the plaintiff had a good faith belief that the defendant had relinquished his right to use the Vermont property.  (Tr. 3/24/11, p. 106–08.)

She also testified that it was the defendant who was first to change the locks.   Prior to the time when he changed the locks, she had not changed them.  (Tr. 3/24/11, p. 110.)   The evidence clearly shows that the defendant voluntarily stopped using that property for several years.   The defendant has testified that the property should be sold and the plaintiff has been attempting to sell the property for several years.

The plaintiff is seeking an order whereby the defendant shall be precluded from any further use of the Vermont property.   The defendant has voluntarily absented himself from that property;  the ongoing conflict between the parties over the use of this property has caused irreparable damage to their ability to continue to share the use of it;  and the best interest of the children requires that the judgment be modified to preclude any further shared use of the property, particularly because the property will be listed for sale and sold.

The defendant has acted intentionally and wilfully.   The defendant is ordered to reimburse the plaintiff for his share of all of the Vermont expenses.   He is also ordered to reimburse her for all of her attorneys fees after hearing, if necessary.   He is also ordered to rectify immediately any outstanding problems related to the transfer of “all retirement accounts” to the plaintiff and this court shall reserve jurisdiction to determine additional sanctions if necessary.   The defendant is ordered forthwith to sign a deed transferring all of this right, title and interest in the Vermont property to the plaintiff and this court reserves jurisdiction to determine additional sanctions to be applied as a result of his obstruction of her efforts to sell the Vermont property.   Finally, the court should find that the plaintiff has acted in reasonable reliance upon the defendant's words and conduct and that under all of the facts and circumstance of this case, the judgment modified so that the plaintiff shall have exclusive use of the Vermont property pending its sale.

OWENS, J.T.R.

Owens, Howard T., J.T.R.