Kathleen Lalikos v. Michael Lalikos (2012)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION FOR CONTEMPT (140)

A review of the record reveals that the parties were divorced pursuant to a marital separation agreement (hereinafter “agreement”) dated April 15, 2011.

Now comes the plaintiff, alleging that the defendant is in contempt for his failure to convey to her a certain mutual fund.   The parties appeared before the undersigned on July 30, 2012.   The defendant was represented by counsel and the plaintiff was self-represented.

The plaintiff argues that the agreement allocates to her two separate accounts at the brokerage firm known as T. Rowe Price.   The defendant argues that the agreement allocates to her only her IRA account at T. Rowe Price and that a second, jointly held account, was not allocated to either party pursuant to the agreement.

FINDINGS OF FACT

1. The parties were divorced pursuant to a marital separation agreement (hereinafter “agreement”) dated April 15, 2011.

2. The agreement in section 8 entitled “Pension/401K/IRA/SEVERANCE PACKAGE” listed all of the retirement type accounts owned by the parties.   Section 8c entitled “ROTH/IRAs:” reads as follows:

i) T.   Rowe Price IRA:  Husband shall be entitled to retain all right title and interest in and to his T. Rowe Price IRA in the approximate amount of $62,420.00 with no further claim by the wife.

ii) T.   Rowe Price:  Wife shall be entitled to retain all right title and interest in and to her T. Rowe Price account in the approximate amount of $84,028.00 with no further claim by the husband.

iii) Morgan Stanley IRA:  Wife shall be entitled to retain all right title and interest in and to the Morgan Stanley IRA in the approximate amount of $248,986 with no farther claim by the husband.

3. At the time of dissolution, there existed a T. Rowe Price mutual fund portfolio, in joint names, valued at $84,028.57 comprised of a non-retirement fund known as “Science and Technology” valued at $12,446.17 as of December 31, 2010 and a retirement fund known as “New Horizons” valued at $71,582.40 as of December 31, 2010.   Together, the portfolio was valued at $84,028.57 as of December 31, 2010 and summarized on one statement (Exhibit 1).

4. At the time of dissolution, the wife listed on her financial affidavit in the section for “nonretirement stocks, bonds, mutual funds” the following entry:  “T. Rowe Price mutual funds $84,028.00.”

5. The wife testified credibly that she believed that the portfolio in question was one account belonging solely to her and that her receiving that asset was the true intent of the parties.

6. The husband testified that prior to the dissolution, the parties discussed this portfolio but were unable to reach an agreement as to its allocation.   The husband's argument necessarily fails as the matter was presented to the court as a full agreement in all respects and no one pointed out to the court that there was this one unsettled issue.

7. It is undisputed that the retirement portion of the portfolio held in the New Horizons fund valued at $71,582.40 at the time of dissolution is solely owned by the wife as her IRA account.

8. The husband argues that the nonretirement portion of the portfolio, held in the Science and Technology fund, was a jointly held asset at the time of the dissolution valued at $12,446.17 and since it was not specifically referenced in the dissolution agreement, it is beyond the power of the court to divide at this time as such action would constitute an impermissible postjudgment modification of a property award.   Moreover, the husband argues that section 8 of the dissolution agreement dealt with retirement accounts and section 9 of the dissolution agreement dealt with bank accounts/stocks, bonds/mutual funds as a further argument that the nonretirement portion of this portfolio should have been contained in section 9 and since it was not, it is beyond the court's jurisdiction to divide.

9. Interestingly, section 8i references his “T. Rowe Price IRA,” section 8iii references her “Morgan Stanley IRA” and section 8ii simply references “T. Rowe Price,” suggesting that notwithstanding the fact that it is in the retirement accounts section, it refers to nonretirement accounts in the aggregate amount of $84,028.

10. The husband further argues that even if the wife is correct in her claim that the dissolution judgment allocated to her the entire portfolio, then worth $84,028, she should not receive the entirety of the joint account at issue because it had increased in value as of the date of dissolution.   In support of his argument, the husband presented a mutual fund statement from T. Rowe Price dated March 31, 2011 (Exhibit 13), which he obtained postjudgment, showing that the funds had both increased in value between the December 31, 2010 valuations until the date of judgment.   The court rejects this argument because said exhibit was not in the possession of the parties at the time of dissolution and the most recent valuations, upon which the parties relied, was the statement dated December 31, 2010 (Exhibit 1).

11. The husband testified that following the dissolution, he contacted T. Rowe Price and requested that it liquidate the Science and Technology fund and forward a check to his attention.   He testified that upon receipt of that check, he deposited it into a bank account and thereafter, has utilized said funds for his sole benefit.

LEGAL DISCUSSION

As the Supreme Court recently observed in Sosin v. Sosin, 300 Conn. 205 (2011), “the trial court has jurisdiction to clarify an ambiguous judgment at any time (citations omitted).   The trial court has no jurisdiction however to open a judgment and to affect the property assignment in a marital dissolution action except within four months after the original judgment (citations omitted).”  Id., 218.

In the instant case, the defendant husband argues that the separation agreement is clear and unambiguous while the plaintiff wife argues that it is replete with ambiguities.   The court finds that the wife is correct in several regards.   Section 8c of the agreement is captioned “Roth/IRAs” but then refers to the account in question as “T. Rowe Price” without the “IRA” designation.   The fund in dispute is not a retirement account.   Moreover, it refers to “her T. Rowe Price account in the approximate amount of $84,028,” when in fact the account was jointly held.   Finally, it refers to the account in the singular when it is in fact, two accounts contained in one portfolio.

The court in Bauer v. Bauer, 130 Conn.App. 185 (2011) recently addressed a similar issue.   In that case, the trial court was reversed when it granted a motion for clarification concluding that there was an ambiguity in the court's original memorandum of decision that the court had to clarify, ordering the defendant to split his pension and annuity plan.   The appellate court held that this was an improper modification of a property distribution order rather than a mere clarification.   In its factual recitation of the various marital assets, the trial court had recognized that the parties agreed to split the defendant's pension but none of the enumerated orders of the court addressed the defendant's retirement accounts.   In other words, the appellate court found that the trial court issued an order dividing a marital asset that had not been divided in its original judgment.

Writing for the majority, Judge Bishop wrote “motions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment ․ and we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification.”  Id., 188, 189.  Mickey v. Mickey, 292 Conn. 597, 603–05 (2009).

In the instant case, however, the separation agreement stated “T. Rowe Price:  wife shall be entitled to retain all right title and interest in and to her T. Rowe Price account in the approximate amount of $84,028 with no further claim by the husband.”   That the separation agreement granted to her the account reflecting the precise amount contained in the portfolio at the time of dissolution (Exhibit 1) which tracked the precise amount which she listed valuing the portfolio on her financial affidavit leads one to conclude that it was the intent of the parties that the entirety of the T. Rowe Price portfolio in that precise amount was allocated to her and only ambiguous drafting lead to this situation.   Moreover, the facts in the Bauer, supra, case are easily distinguishable.   In that case, the orders made no reference whatsoever to the pension fund in dispute.   In the instant case, the orders distributed the asset in question but somewhat ambiguously, identified it as “hers” instead of “theirs” and used the singular instead of the plural.   These ambiguities can and should be clarified so that the true intent of the parties' agreement is reflected in the court orders.   It is illogical and incredible that the parties intended that their agreement not address the allocation of this valuable asset, known about, discussed and specifically identified on the wife's financial affidavit particularly when it was presented to the court as a full and final settlement of all issues.   Civil contempt in family matters is governed by Practice Book § 25–27.

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.”  In re Leah S., 284 Conn. 685, 692 (2007).   The movant has the burden of proof to show, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.  Isler v. Isler, 50 Conn.App. 58, 66–69 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 1 (2001).   Moreover, “a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful.”   Wilson v. Wilson, 38 Conn.App. 263, 275–76 (1995).

In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt.   The court must find that there was a violation of said order and that the violation was willful.   Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding.  In re Leah S., 284 Conn. 685, 693–94 (2007).

“Even in the absence of a finding of contempt, a 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.”  Fuller v. Fuller, 119 Conn.App. 105, 115 (2010);  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988).   Even though a party's actions did not constitute contempt, a court's remedial orders are well within its general remedial discretion.  Fitzgerald v. Fitzgerald, 16 Conn.App. 458, 553 (1988).

Under the present circumstances, the court order was not clear and unambiguous and in fact, was so ambiguous that it required clarification.   The motion for contempt is denied but the court concludes that the wife was entitled to the entirety of that portfolio.   The husband is ordered to pay to her the sum of $12,446.17, the value of the nonretirement account, as it was known to the parties on the date of dissolution within 30 days.

Shluger, J.

Shluger, Kenneth L., J.