Peggy J. Daily v. Jack L. Daily (2013)

MEMORANDUM OF DECISION RE POSTJUDGMENT

The defendant pursuant to Practice Book Section 11–11 moves for reargument (# 202.00) as relates to this Court's Memorandum of Decision dated July 25, 2012.

The Court after hearing the parties on the motion granted the motion but limited argument to the following:  (1) counsel fees that had been awarded by the Court (2) proof of the defendant's claim that he had tendered money to the plaintiff from the date of dissolution to May 2008 (i.e. Checks, money orders, etc.) (3) any issue related to the tax lien.   Oral argument and testimony were taken on January 11, 2013 and appropriate and careful memoranda were submitted subsequent thereto.   The Court heard testimony from four witnesses, including the respective parties and attorneys Berlin and VonKohorn and examined several exhibits that were submitted.   The defendant claimed that this Court's memorandum of July 25, 2012 was inaccurate in its finding that the defendant had not tendered any alimony or arrearage since the dissolution of marriage decree, that the plaintiff was responsible for the $37,600 legal fee to Levitt Rockwood, Esquires, that the defendant had been reducing his income based on the extent of the tax liens filed by the United States of America, that appellate counsel fees were required by the plaintiff and that the Court findings that defendant's motion to modify alimony and life insurance orders failed to comport with the rules of Court in that he did not adequately present his claim, and that he failed to provide a financial affidavit at the filing of the claim or prior to the hearing.

This case has a long history.   On September 6, 1995 the parties agreed (118) that the plaintiff would remain in the parties' marital home for so long as the property was not foreclosed upon and no ejectment was commenced.   If foreclosure or ejectment commenced and the plaintiff vacated the marital home alimony would increase from 1,250 per month to 2,500 per month.   One year after the dissolution the defendant returned to Court as part of the plaintiff's contempt proceeding.   She was again required in 2006 to reinstate contempt proceedings.   At the time of the proceeding the defendant had paid no alimony and owed $201,250.00.   Since she remained in the house her alimony order remained at $1,250.00 per month.   The defendant agreed to pay $50,000 immediately and consented to a $125,000 lien against the real estate but no date was set for payment.   However, when asked by Pinkus, J. as to the date of payment the defendant's attorney responded “upon the sale of the residence.”   It was never mandated that the plaintiff was required to wait until the house was actually sold to receive her arrearage or that she might never receive the sums that were owed to her.   She testified that she was unaware of that she was required to pay Attorney Nevas the sum of $36,700.   From an arrearage of $201,250. and a settlement of $50,000. that has not been paid she has received only $12,400.00.   A examination of the record bears out that from June of 2011 through September of 2011 the defendant continued a pattern of filing dilatory pleadings and failing to comply with the many motions filed by the plaintiff.   Plaintiff was required to return to Court on several occasions to attempt to obtain compliance.

When the defendant returned to the United States after a very lengthy stay in Hawaii he suggested that plaintiff could open an account at Peoples United Bank so that he could make direct deposits to plaintiff's account.   Defendant never made the deposits to said account.   The pattern of egregious misconduct through the filing of pleadings continued in August of 2012 and continued steadily thereafter.   He filed on two successive days motions to reargue that were summarily denied.   He filed an appeal with the Appellate Court and withdrew it after the plaintiff was required to engage appellate counsel.

An examination of the files, pleadings and memoranda makes it clear that all the elements of egregious litigation misconduct have been met.  Berzins v. Berzins, 306 Conn. 651 (2012).

In Berzins, supra, the Court clarified the scope of its holding Ramin v. Ramin, 281 Conn. 324, 251 (2007).   In the present case the Court makes a finding that the defendant has acted in bad faith as defined in Maris v. McGrath, 269 Conn. 834, 845–46, 2004.   Generally, attorney fees and ordinary expenses and financial burdens of litigation are not allowed to a successful party unless one party does not have ample liquid assets to pay for attorney fees or the failure to award attorney fees will undermine the Court's other financial orders but § 46b–62 is not implicated in the present case.   An exception to the common-law rule is the inherent authority of the trial court to assess attorney fees when the losing party has acted in bad faith, vexatiously, want only, or for oppressive reasons.  Schoomaker v. Lawrence Grunoli, Inc., 265 Conn. 210, 253 (2003).   In the present matter the Court finds that the defendant testified untruthfully and in bad faith.

The Court orders entered on July 25, 2012 stand.

OWENS, J.

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