Rebecca Green v. Daniel Green (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR CONTEMPT DATED DECEMBER 6, 2010 (No. 117);  PLAINTIFF'S PL MOTION FOR ATTORNEY FEES UPON FINDING OF NO CONTEMPT DATED JUNE 5, 2011 (No. 117.20);  PL MOTION FOR ATTORNEY FEES DATED JUNE 6, 2011 (No. 117.25);  and DEFENDANT'S MOTION FOR SANCTIONS DATED JUNE 6, 2011 (No. 117.30)

These matters come before the court by virtue of plaintiff's and defendant's pendente lite motions referenced above.   The court conducted a hearing on the motions on July 5, 2011.   Each party was represented by counsel at the hearing.

A. Defendant's Motion for Contempt dated December 6, 2010 (No. 117)

The defendant requests the court find the plaintiff in contempt for violation of the automatic orders in that she disposed of numerous farm animals, including horses and goats.

The plaintiff initiated the proceedings by a complaint dated January 31, 2011 having a return date of February 15, 2011.   Accordingly, she was in receipt of the automatic orders which she had served on the defendant on February 1, 2011.

The credible evidence is the plaintiff by February 3, 2011 had found homes for certain farm animals, including a horse, the “minis” (miniature horses), and some goats—i.e., she gave them away.   The farm animals may have been rescue animals and/or given to the parties, but they nonetheless constitute marital property which have some value—whether intrinsic value or cash value, particularly the goats as they are income producing property.

The automatic orders are clear and unambiguous.   The plaintiff knowingly and willfully gave away marital property in violation of the automatic orders.

The defendant's motion is granted.   The court finds the plaintiff in contempt for failure to follow court orders.

The plaintiff testified that the goats and Celia the horse have been returned to the farm.   The plaintiff is ordered to provide to defendant's counsel, within thirty days of the date of this order an accounting of all of the property she transferred, disposed of or gave away and of the property returned to the farm in any manner.   She is further enjoined from disposing, transferring or selling any additional property in violation of the orders of the court.

B. Plaintiff's PL Motion for Attorney Fees Upon Finding of No Contempt (No. 117.20)

The foregoing motion is denied.

C. Defendant's Motion for Sanctions (No. 117.30)

The defendant has moved the court to enter sanctions against the plaintiff for forging his name on the 2010 IRS form 8879 which authorized the e-filing of the parties' joint 2010 federal tax return.

The plaintiff testified, credibly, the defendant authorized her to arrange for the preparation of the parties' 2010 joint tax return and to use the accountant the parties had used in the past.   The plaintiff did so.   She also, admittedly, signed his name to the 2010 IRS form 8879 without his explicit instructions or authorization to do so.

The defendant testified, credibly, that he had not authorized the plaintiff to sign form 8879.

The court does not find the plaintiff acted in willful derogation of the defendant's instructions to handle the 2010 filing of the tax return:  the tax return was prepared using information the defendant had supplied to the plaintiff and it was prepared by the accountant customarily used by the parties in the past.   The court does not find the plaintiff exercised good judgment in signing the defendant's name to a federal income tax form—particularly during the pendency of dissolution of the marriage.

The motion for sanctions is denied.

D. Plaintiff's PL motion for Attorney Fees (No. 117.25)

The plaintiff admitted to signing the defendant's name to the IRS form in question.   The defendant did not authorize her to do so.   Nothing in those facts supports a determination that the motion filed by the defendant was frivolous.

The motion is denied.

SO ORDERED.

BY THE COURT,

Olear, J.

Olear, Leslie I., J.