Judith Kudrak v. James Kudrak (2011)

MEMORANDUM OF DECISION RE MOTIONS TO ENFORCE POSTJUDGMENT COURT ORDERS

The defendant filed a postjudgment motion (Docket No. 129.00) against the plaintiff, his former wife, seeking to enforce certain provisions of the divorce judgment entered by the court (Calmar, J.) on February 5, 2010.   The plaintiff filed a separate postjudgment motion (Docket No. 130.00) against the defendant seeking to enforce other provisions of the divorce judgment.   The court conducted an evidentiary hearing on the motions on April 25, 2011.   Prior to the commencement of evidence, counsel for the parties stipulated that a joint tax refund check in the amount of $238.43 would be cashed and divided equally between the parties.   The court accepted the parties' stipulation.   At the conclusion of the first day of evidence, the hearing was continued to enable the parties to exchange documents in an effort to narrow or resolve some of the outstanding issues raised by the pending motions.   The parties were unable to resolve the outstanding issues and a second evidentiary hearing was conducted and completed on September 19, 2011.

I. The Defendant's Motion to Enforce Court Order, Postjudgment

The defendant seeks the following relief in his postjudgment motion to enforce court order:  (1) that the plaintiff be ordered to turn over to the defendant all personal property as provided in Article VI of the divorce decree, or, in the alternative, that the plaintiff be ordered to pay the defendant the equivalent cash value of the personal property the defendant did not receive;  (2) that the plaintiff be ordered to deliver to the defendant half of the family photographs in the plaintiff's possession as provided in Article VI of the divorce decree;  (3) that the plaintiff be ordered to transfer to the defendant two side-by-side burial plots as provided in Article VII, paragraph A.6.D. of the divorce decree;  and (4) that the plaintiff be ordered to purchase from the defendant his one-half interest in the 1993 Fleetwood Prowler 29S Camp Trailer and attachments for an amount equal to fifty percent of the fair market value of same as provided in Article X, paragraph C of the divorce decree.

At the hearings, the parties resolved several of the issues raised by the defendant's motion.   First, the parties agreed that the 1993 Fleetwood Prowler 29S Camp Trailer and attachments had a fair market value of $1,200, that the defendant's one-half interest in the trailer and attachments was therefore valued at $600, and that the defendant would transfer title to the trailer and attachments to the plaintiff upon the plaintiff's payment to the defendant of the sum of $600.   As of the date of the second hearing, the parties had consummated this transaction.   Secondly, the plaintiff provided documentation to the defendant at the first hearing evidencing that the two side-by-side burial plots had been transferred to the defendant.   Thirdly, the plaintiff agreed at the second hearing to scan all family photographs in her possession onto a computer disc and to deliver the disc to the defendant.

One issue the parties were unable to agree upon involves the defendant's personal property.   Article VI of the divorce decree provides in relevant part as follows:

The parties hereby agree that they have already divided their personal property to their mutual satisfaction.   The Husband shall receive all tools, his books, clothing and personal effects, personal papers, records and computer discs, located at home or at trailer.   The Wife shall receive the remaining items at the house ․ Both parties shall be allowed to remove their personalty from the house prior to its sale.

The defendant testified at the first hearing that he did not receive his tools as provided in the divorce decree and that the value of those tools was $8,500.   In support of his claim, the defendant offered into evidence a list of items he claims were “tools” as he believed that term was used in the divorce decree.   In addition to items such as screwdrivers, hammers, sockets and levels, the defendant's list includes a pressure washer, snow blower, lawn mower, wheelbarrow, air compressor with accessories and two ladders.   At the second hearing on September 19, 2011, the defendant offered into evidence a second, more comprehensive list of “tools” and testified that the value of the items identified on the second list was $16,700.

The divorce decree does not define the term “tool” nor does it contain an itemized listing of the tools to be received by the defendant.   The plaintiff testified that she did not understand the term “tool” to include the pressure washer, snow blower, lawn mower, wheelbarrow, air compressor with accessories or ladders.   Rather, she interpreted the term “tools” to mean hand tools.   She also testified that she left the defendant's hand tools, tool chests, work benches, saws and the like in the garage of the marital residence for the defendant to retrieve.   A restraining order that had been entered against the defendant was modified prior to the sale of the house so that the defendant could go to the marital residence and retrieve his personalty which had been boxed and left for him in the garage.   As for the pressure washer, snow blower, lawn mower, wheelbarrow, air compressor with accessories or ladders, the plaintiff testified that several of the items were broken or in disrepair and that she either sold them for a nominal sum or gave them away during the course of the divorce.

The word “tool” is defined in the Merriam–Webster dictionary as “a handheld device that aids in accomplishing a task.”   Using this definition, items such as screwdrivers, hammers, sockets and levels constitute tools, but items such as a pressure washer, snow blower, lawn mower, wheelbarrow, air compressor with accessories or ladders do not.   Accordingly, the court finds that the pressure washer, snow blower, lawn mower, wheelbarrow, air compressor with accessories and ladders are not “tools” as that term is used in Article VI of the divorce decree.   Rather, those items fall within the general catch-all category of “the remaining items at the house” which the plaintiff was to receive under Article VI of the divorce decree.   Therefore, the court finds that the plaintiff is not required to pay the defendant the cash value of the pressure washer, snow blower, lawn mower, wheelbarrow, air compressor with accessories or ladders identified on the defendant's lists of “tools.”

As for the remaining items on the defendant's “tools” lists, there is no evidence before the court from which it could be found that the plaintiff is in possession of the defendant's personalty or that she disposed of any of the defendant's property (other than the items referenced above).   At the second hearing, the parties' son testified that the plaintiff did not have any of the defendant's tools at her house nor did he ever see the plaintiff dispose of any of the defendant's personal property other than the items the plaintiff identified in her prior testimony.   The plaintiff also testified at the second hearing that some of the defendant's tools and other personal property were stored in their camp trailer and that the defendant removed items from the trailer in Spring 2010.   The defendant offered no credible evidence to contradict this testimony.

Based upon all of the credible evidence before the court, the court finds that the plaintiff is not in possession of the defendant's personal property and that the plaintiff did not dispose of the defendant's tools or other personalty other than the items specifically referenced above.   Accordingly, the plaintiff is not required to compensate the defendant for any of the items identified on the defendant's “tools” lists which he claims he did not receive.

II. The Plaintiff's Motion to Enforce Court Order, Postjudgment

The plaintiff seeks the following relief in her postjudgment motion to enforce court order:  (1) that the defendant be ordered to reimburse her for one-half of various amounts that she paid to third parties for expenses that the parties were required to divide equally pursuant to the divorce decree;  (2) that the defendant be ordered to sell to the plaintiff his one-half interest in the 1993 Fleetwood Prowler 29S Camp Trailer and attachments for an amount equal to fifty percent of the fair market value of same as provided in Article X, paragraph C of the divorce decree;  and (3) that the plaintiff be awarded attorneys fees and costs for bringing the pending motion.

At the first hearing, the parties resolved several of the issues raised by the plaintiff's motion.   First, the defendant agreed to pay to the plaintiff one-half of the 2002 joint IRS tax obligation which was paid by the plaintiff in full in the amount of $416.85.   Secondly, the defendant agreed to pay to the plaintiff one-half of the homeowners' insurance payment to One Beacon which was paid by the plaintiff in full in the amount of $252.04.   Thirdly, the defendant agreed to pay to the plaintiff one-half of the Wesleyan Hills Resale package which was paid by the plaintiff in full in the amount of $75.00.   In addition, as noted above, the parties consummated the transaction wherein the defendant sold to the plaintiff his one-half interest in the 1993 Fleetwood Prowler 29S Camp Trailer and attachments for the amount of $600.

The open items to be resolved at the second hearing were payment of various household bills, a bulky waste permit, attorneys fees for closing on the marital home and the March 2010 mortgage payment for the marital home.   After due hearing, the court finds that the defendant is obligated to reimburse the plaintiff the following sums:  (1) $209.74 representing payment of one-half of various household bills (cable, electric and trash) in February and March 2010;  (2) $37.50 representing payment of one-half of a bulky waste permit;  and (3) $369.27 representing payment of one-half of the March 2010 mortgage payment for the marital home.   The court finds further that the defendant is not required to reimburse the plaintiff for attorneys fees in the amount of $350.00 which she paid to Brown, Paindiris & Scott, LLP.

III. Orders

As to the defendant's motion to enforce court order, postjudgment (Docket No. 129.00), the court hereby orders that:

1. the defendant's request that the plaintiff turn over to the defendant all tools as provided in Article VI of the divorce decree, or, in the alternative, that the plaintiff be ordered to pay the defendant the equivalent cash value of said tools, is denied;

2. the plaintiff shall scan all family photos onto a computer disc and deliver the disc to the defendant on or before December 2, 2011;

3. the defendant's request that the plaintiff transfer to the defendant two side by side burial plots as provided in Article VII, paragraph A.6.D. of the divorce decree is moot as the burial plots have already been transferred to the defendant;  and

4. the defendant's request that the plaintiff purchase the defendant's one-half interest in the 1993 Fleetwood Prowler 29S Camp Trailer and attachments is moot as this transaction has already been consummated by the parties.

As to the plaintiff's motion to enforce court order, postjudgment (Docket No. 130.00), the court hereby orders further that:

1. the defendant shall pay to the plaintiff on or before December 2, 2011 the sum of $988.45 which sum comprises the following:  (1) $208.42 for the 2002 joint IRS tax obligation;  (2) $126.02 for homeowner's insurance;  (3) $37.50 for the Wesleyan Hills Resale Package;  (4) $209.74 for household bills;  (5) $37.50 for the bulky waste permit;  and (6) $369.27 for the March 2010 mortgage payment;  and

2. the plaintiff's request for attorneys fees and costs is denied.

SO ORDERED.

LISA KELLY MORGAN, JUDGE

Morgan, Lisa K., J.