Debra A. Trainor v. David L. Trainor (2011)

MEMORANDUM OF DECISION REGARDING PERSONAL PROPERTY, PJ (119)

A review of the record reveals that the parties were divorced on June 1, 2011 pursuant to a separation agreement.   Paragraph 4 of said agreement, relevant to the instant issue, pertains to personal property and states:

“The wife will move all personal property of the husband's to the garage located at the marital home.   The husband's representative shall be granted two day's access to the garage within six weeks of the final agreement to remove all items from the premises.   A list of said personal property is attached hereto and made a part of the judgment.   Each party shall immediately sign all documents necessary to effectuate the other party having sole title to the personal property assigned to that other party by order of this court.   Disputed items on attached list to be arbitrated by mutually acceptable attorney on or before June 30, 2011.”

The parties appeared before the undersigned on August 1, 2011 to argue the defendant husband's motion for modification (119).   In said motion, the defendant claims “I have only pick-up (sic) what she aloud (sic) my people to retrieve.   I would like my friends and family to be able to return to her home to pick up the rest of my belongings, clean, complete and undamaged.”

The court heard testimony from both parties as well as legal argument and they entered into evidence certain documents regarding the property that was retrieved and the property that the husband argues should have been retrieved.   The wife introduced into evidence photographs of the property in her garage prior to their retrieval (Exhibit 3).

The court finds proven by a fair preponderance of the evidence the following facts:

1. The parties were divorced on June 1, 2011 pursuant to a separation agreement.

2. Paragraph 4 of said agreement, relevant to the instant issue, pertains to personal property.

3. The parties engaged attorney Tim Lenes to arbitrate their post-judgment property disputes pursuant to their agreement.

4. The plaintiff testified credibly that she made the defendant's property available to him pursuant to the judgment and subsequent arbitration and that it was in good condition (see Exhibit 3–photographs).   She testified further that if the property was later damaged, said damage was caused by either the movers or by the defendant's friends and family.

5. The defendant testified that there is a large number of items missing or damaged.   He was unable to attach a dollar figure to those items but a review of the claimed missing items (Exhibit A) leaves one with the impression that they are not of significant monetary value.   In fact, the defendant's financial affidavit from the date of dissolution only lists under “personal property” tools valued at $2,500, car trailer valued at $2,000, two Ski Doos valued at $3,000 and a landscaped trailer valued at $500, none of which are contained on his list of missing items (Exhibit A) with the possible exception of some tools.

6. The court will construe the defendant's motion essentially as a motion for contempt alleging that the plaintiff has failed to comply with the court order regarding personal property.   The defendant has failed to sustain his burden of proof required under the law to prove a motion for contempt;  that there was a clear and understandable order, that the order was violated and that the violation was willful.

Wherefore, the defendant's motion is denied.

Shluger, J.

Shluger, Kenneth L., J.