Gail Galazan v. Antony Galazan (2013)

MEMORANDUM OF DECISION ON DEFENDANT'S POSTJUDGMENT MOTION TO REARGUE (255) AND PLAINTIFF'S MOTION TO TERMINATE ANY AUTOMATIC APPELLATE STAY (256)

With respect to both pending motions the court makes reference to and incorporates herein by reference the facts set forth in the memorandum of decision of August 26, 2013 (254.50).

As to Motion 255:  After hearing argument, the court ruled from the bench on defendant's second request for relief made in his motion to reargue.

As to the request that the court reconsider its denial of the defendant's request for attorneys fees (which was a component of motion 242), the court after reconsideration and reargument confirms its orders as set forth in its Memorandum of Decision dated August 26, 2013 (245.40).

The court notes that as the offer to purchase the marital home for $1,900,000 was withdrawn prior to the conclusion of the hearing on the sundry motions ruled upon by the court on August 26, 2013, the court did not need to reach a determination as to whether the offer was reasonable (the clear position of the defendant) and if the defendant should have been compelled to accept the same.

The court, as the defendant notes in his pending motion, previously found that the plaintiff acted in “excessive zeal” in filing her motions to compel acceptance of the offers to purchase the marital home.   The court also found that the timing of the filing of the motions was unreasonable.

The court notes that prior to and during the hearing on the motions to effectuate the judgment as filed by both parties, the defendant did not engage in any discussion with the plaintiff to make a counter offer to the purchaser;  this may have been because he was willing to effectuate the judgment by providing proceeds to the plaintiff in an amount equal to what she would have received if the property was sold at a price less than the pending $1,900,000 offer.

In the August 26, 2013 memorandum, in addition to the findings the defendant relies upon in his pending motion, the court found that “their [the parties'] lack of communication and cooperation has resulted in a total and complete failure” to negotiate with each other and with a prospective purchaser.   There is no evidence that there has been any improvement in the parties' abilities and their animus appears to have continued unabated.

The agreement of the parties that was incorporated into the judgment is to be interpreted as a contract.   See Greenburg v. Greenburg, 26 Conn.App. 591 (1992).   The language of the agreement requires that “[i]n the event that either party is found to have unreasonably interfered with the sale of the home, then such party shall be liable to the other” for attorneys fees (emphasis added).   The language further requires the parties to (i) immediately list the home for sale and (ii) accept any reasonable offer.

“Interference” is defined as “the act or process of interfering.” ¹  Interference is defined as “to come in collision:  to be in opposition:  to run at cross-purposes.” ²

Due process allows for the ability of the plaintiff to file such motions as she deems necessary and proper to effectuate the judgment.   The timing was such that it gave the defendant the ability to respond through the court process instead of through negotiation with the plaintiff and/or the potential purchaser.³

The plaintiff, based on the history of this case, was not unreasonable in her concern that the parties would be unable to reach an agreement on the terms for the sale of the home.   They did not do so.

Her actions were done to further the sale and not to interfere with the sale of the home.   She and the defendant have been ordered to sell the house.   She cannot be in contraposition to the defendant in terms of the ultimate goal—the house must be sold.   She engaged in a motion practice to accomplish that end.

The court finds that the plaintiff did not unreasonably interfere with the sale of the home.   She did nothing to meddle with the contract or the potential purchaser—she sought to compel the defendant to act.

The motion to reargue was granted but the court reaffirms its prior order denying the award of attorneys fees as requested in motion 242.

As to the motion to terminate the automatic stay:  The defendant in oral argument on the motion appeared to accede to the request that any stay that would be imposed be terminated with respect to the order requiring the sale of the property as such order was included in the judgment and no appeal was taken from the judgment.

Nonetheless, at issue is the request of the court to terminate any stay that would arise in the event the defendant appeals the orders of the court to effectuate the sale of the marital home which orders were entered on August 26, 2013.

With regard to the plaintiff's motion, the termination of a stay of execution of a judgment pending appeal is governed by Practice Book § 61–11(c).  Pursuant to Practice Book § 61–11(e) the motion may be filed before judgment or after judgment but prior to an appeal.

No appeal has been filed in this matter.

The plaintiff argues that the due administration of justice requires the termination of the stay in the event an appeal is filed.

“[W]hether due administration of justice requires a termination of an automatic stay must involve an analysis in which the following principles are considered:  (1) the likelihood of success on appeal;  (2) the irreparability of injury to be suffered if the stay is lifted;  (3) the effect of the stay on other parties to the proceedings;  and (4) the public interest.”  Griffin Hospital v. Commission of Hospitals, 196 Conn. 451, 456–57 (1985).

Considering these factors, the court finds that the equities tip in favor of granting the plaintiff's motion.

With respect to the likelihood of success on appeal, the court is mindful of the realities of litigation which make accurately predicting the future outcome of a case difficult.

The standard on appeal puts a difficult burden on the defendant to succeed.   “The standard of review in family matters is well settled.   An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.”  Weinstein v. Weinstein, 104 Conn.App. 482, 487, rev'd on other grounds, 280 Conn. 764, after remand, 104 Conn. pp. 482 (2007), cert. denied, 285 Conn. 911 (2008).

After considering applicable law and the facts in this case, if the defendant appeals the orders entered on August 26, 2013, the court does not find that there would be a likelihood of success on appeal.

With regard to irreparable injury and the effect of the stay on other parties, the court finds that if a termination of the automatic stay is not entered, the parties would be unable to effectuate the judgment in accordance with the orders of the court.   An appeal would likely serve only to delay the sale of the property (due to the stay of the orders requiring price reductions intended to expedite the sale of the marital home) which would cause disproportionate harm to the plaintiff.

Lastly, the court does not find a public interest in maintaining the stay on the facts of this matter.

Accordingly, after carefully weighing all of the Griffin Hospital factors, the court grants the plaintiff's motion.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. Webster's Third New International Dictionary of the English Language Unabridged..  FN1. Webster's Third New International Dictionary of the English Language Unabridged.

FN2. Ibid..  FN2. Ibid.

FN3. It was the timing of the motion that the court found unreasonable..  FN3. It was the timing of the motion that the court found unreasonable.

Olear, Leslie I., J.