Lionell Worrell et al. v. Winston Rattray et al. (2013)

MEMORANDUM OF DECISION

I

PROCEDURAL HISTORY IN CIVIL PROCEEDING

This civil action was commenced by a writ dated March 9, 2011 and the original summons and complaint filed March 28, 2011 by Dorothy Worrell and Lionel Worrell against defendants, Joan Escoffery–Rattray (Escoffery) and Winston Rattray (Rattray).   Dorothy Worrell died during the course of the proceedings and the plaintiff Lionell Worrell was substituted as fiduciary of her estate.   An amended complaint was filed on May 2, 2011.

The plaintiffs' complaint seeks, inter alia, to foreclose a mortgage deed dated April 25, 2008 and recorded on May 22, 2008 in Vol. 1486, Page 52 of the Bloomfield Land Records, which mortgage secures a promissory note in the stated principal amount of $11,584.14, with provisions for an increase thereon on terms set forth in the note and payable on demand.   Said note and mortgage were executed by Rattray.   The property encumbered thereby is known as 40 Sharon Street (referred to by all parties and the court as 40 Sharon Road).   The Sharon Road property is owned by Escoffery and Rattray.

A notice of lis pendens was recorded in the Bloomfield Land Records in Vol. 1624, Page 129 and filed with the court on March 29, 2011(102).

On May 18, 2011, the defendant Escoffery, then a self-represented party, filed an answer to the complaint;  a disclosure of defenses;  and a cross complaint.   The cross complaint alleges the plaintiffs, in concert with Rattray, have committed fraud against her.

On June 3, 2011, Dorothy Worrell and Lionell Worrell filed a reply and an answer to the cross complaint.

The action was companionized with the dissolution case between Escoffery, as the plaintiff, and Rattray.

The court heard evidence in both cases on July 25 and 26, 2013 and September 19, 2013.   Additional evidence on the pending dissolution case alone was heard on September 20, 2013.

The parties in the civil action requested the court's permission to file briefs:  the plaintiffs' brief was filed October 7, 2013 and the defendant Escoffery's brief was filed November 7, 2013 (but on October 30, 2013, the defendant Escoffery provided her brief to the court).

II

PRELIMINARY FINDINGS OF FACTS

The following findings of facts are made after the court's observance of the demeanor of the parties and consideration of all credible evidence;  the findings of fact have been made by a fair preponderance of evidence, except the court has made the findings of fact with respect to the counterclaim and cross complaint made by Escoffery by clear and convincing evidence, as set forth below.   Dorothy Worrell was the mother of Rattray.   Lionell Worrell was the husband of Dorothy Worrell and stepfather of Rattray.

Dorothy Worrell resided and Lionell Worrell continues to reside in Canada.   Dorothy Worrell held a power of attorney for Rattray and Lionell Worrell currently holds a power of attorney for Rattray;  and, both Dorothy Worrell and Lionell Worrell acted (and Lionell Worrell continues to act) as Rattray's agents to manage his rental properties in Canada and his financial affairs in Canada.

Prior to the marriage between Rattray and Escoffery, Rattray also lived in Canada and he owned two pieces of property known as Cardiff Hall in Jamaica and three pieces of rental property in Canada—Kips Lane, Acorn Place and Springbank Road.

On or about December 13, 1993, Escoffery and Rattray purchased 40 Sharon Road for approximately $126,000.   They jointly signed a note and mortgage in the amount of $100,000 at the time of the purchase.   The source of the down payment on the property was provided by Rattray.

On or about October 24, 2003, Escoffery, as mortgagor, executed a mortgage deed, with GreenPoint Mortgage Funding, Inc. (GreenPoint), as mortgagee, to secure a note in the stated principal amount of $94,000 (the “October note”).   Escoffery testified that she believes the principal balance of the mortgage paid off during the 2003 refinance was approximately $80,000.   There is no evidence any proceeds of the October note in excess of the note paid off were used for anything other than household expenses.   The GreenPoint mortgage contained the standard mortgage covenants and purported to convey a mortgage interest in the entirety of the 40 Sharon Road property and not only on the undivided one-half interest legally held by Escoffery.

Escoffery is a lawyer who works as a pension investigator for the federal government.

Rattray had no knowledge of the execution of the October note.

The marriage of Escoffery and Rattray was in serious jeopardy by the summer of 2007.

Escoffery moved out of 40 Sharon Road on or about August 2007.

Escoffery had customarily made the mortgage payments as during the marriage Rattray was rarely gainfully employed.

The GreenPoint mortgage was not paid for the months of August and September 2007.   Escoffery knew of such non-payment.

On or about September 2007, Dorothy Worrell advanced the sum of $5,460.54 to make the GreenPoint mortgage payments due for August and September 2007 and to provide funds for the mortgage payments coming due in October and November 2007.   The funds were wired to an account of Escoffery.

Dorothy Worrell continued to advance funds on a monthly basis to pay the mortgage on 40 Sharon Road through May 2009.   The total so advanced was $28,280.15.

On or about April 25, 2008, Rattray, as mortgagor, signed a note (the “April note”) and a mortgage to Dorothy Worrell, as mortgagee, in the face amount of $11,584.14 to secure funds already advanced and future advances.   Escoffery did not sign the same.

By letter to Dorothy Worrell dated September 24, 2009 (CV Exhibit 13), Escoffery acknowledged that funds advanced by Dorothy Worrell in the approximately amount of $30,000 constituted a loan.

On or about July 10, 2010, Dorothy Worrell wired funds from her retirement account (which funds, as set forth below, were made available to her by virtue of Rattray providing the same to her as repayment of prior loans to Dorothy Worrell made to Rattray) to pay off the balance of the loan originally held by GreenPoint (the payoff statement was provided by Bank of America).   The amount so paid was $60,490.41.

Capitalizing on the payoff of her debit to GreenPoint, Escoffery by a complaint dated July _ 2010(sic) and summons dated August 5, 2010 commenced the dissolution action against Rattray.   The return date on the complaint is August 31, 2010.

Escoffery has disavowed any obligation to repay any of the funds advanced by Dorothy Worrell to pay off Escoffery's indebtedness—despite the earlier acknowledgment of the advancement of funds by Dorothy Worrell.

On March 4, 2011, Dorothy Worrell and Lionell Worrell, through their attorney, sent a demand letter to Escoffery and Rattray.

On March 7, 2011, while the automatic orders in the dissolution proceedings were in effect, Rattray signed a note in the amount of $108,024.78 which is secured by a mortgage on 40 Sharon Road.

Escoffery acknowledged the demand letter by a letter responding to the plaintiff's attorney.   Escoffery in such letter alleged that:  (i) the claimed indebtedness is an attempt to commit fraud upon her;  (ii) by virtue of providing legal assistance to the plaintiffs and attempting to collect on the debt, counsel for the plaintiffs' plaintiffs is a coconspirator;  and (iii) all parties, including plaintiff's counsel, would be prosecuted civilly and criminally.

In her cross complaint, Escoffery failed to produce evidence that the funds advanced by Dorothy Worrell were other than funds from her retirement account.   It was not proven that Dorothy Worrell was a conduit for funds generated by the income received from the operation of Rattray's rental properties in Canada.

During the term of the marriage, Rattray was engaged in a poorly advised, futile development of a guest house on one of the Cardiff Hall sites in Jamaica.   The guest house has not been finished and there is litigation between Rattray and his contractor.

There is a history of loans from Dorothy Worrell to Rattray.   Dorothy Worrell loaned Rattray approximately $122,000 for the development of the guest house in Jamaica—which includes the approximately $104,000 which was loaned in installments between 2002 and 2004.

During the term of the marriage, Rattray sold two of the pieces of Canadian rental property:  Kips Lane and Acorn Place.

The court finds that the sales proceeds realized sometime around 2002 by Rattray from his sale of the Kips Lane property in the approximate amount of $114,000 were invested into the Cardiff Hall property.

Acorn Place was sold at the end of 2008 or early 2009.   The net proceeds realized by Rattray were approximately $130,000.   Even though he received the money from the sale of such property, instead of taking over the payments on the mortgage, he allowed Dorothy Worrell to continue to pay the mortgage on the marital home.   Rattray thereafter made two installment payments to Dorothy Worrell and Lionell Worrell to repay indebtedness—sometime around July 2009 he repaid approximately $61,000 and in August 2010 he repaid approximately $66,000.   Shortly after Dorothy Worrell received the return of the principal she had earlier advanced to Rattray for the Jamaican development, Dorothy Worrell transferred money to pay off the mortgage on Sharon Road in Bloomfield.

Lionell Worrell acknowledged that neither he nor Dorothy Worrell asked Rattray for a mortgage on the Canadian or Jamaican properties to secure funds loaned.   The court does not, however, find that to be unreasonable or unjustifiable as the latest loan advancements made by Dorothy Worrell were used to satisfy an indebtedness of Escoffery which was secured by property owned by Escoffery and Rattray.

Dorothy Worrell's expert, Mr. O'Connell, valued the marital home at $130,000 as of July 3, 2013.   Mr. O'Connell's interior and exterior inspection revealed the home to be in need of significant repair and improvement and found the home to be comparable to homes that are the subject of short sales or to those homes that are owned by the prior mortgagee.

Escoffery's expert, Mr. Budkofsky, valued the marital home at $180,000 as of July 8, 2013 while also acknowledging the need for repairs at the home.   Mr. Budkofsky was critical of the format of the report prepared by Mr. O'Connell and his appraisal report also set forth the need for the repair of the property.

“It is well settled that the trier of fact can disbelieve any or all of the evidence proffered ․ including expert testimony, and can construe such evidence in a manner different from the parties' assertions.”  (Internal quotation marks omitted.)  State v. Alvarado, 62 Conn.App. 102, 112, cert. denied, 256 Conn. 907 (2001).

The court finds the value of the 40 Sharon Road property to be $180,000.

The outstanding principal balance of the latest mortgage on property is $108,028.74;  pursuant to the Affidavit of Debt (exhibit CV 19) the principal amount loaned by the plaintiffs, Dorothy Worrell and Lionell Worrell, is $106,996.92.   The plaintiffs are seeking the interest due under the note.   The March 7, 2011 note executed by Rattray provides for no interest to accrue for the first five years and provisions for a late payment fee of 5% of the unpaid amount.   The plaintiffs further claim additional interest and attorneys fees are due from the defendants.

The court notes that it did not find the testimony of either Escoffery or Rattray to be compelling, persuasive or particularly credible.   The testimony of Lionell Worrell was the more persuasive.

III

APPLICABLE LAW AND ADDITIONAL FINDINGS OF FACTS

In counts one and two, the plaintiffs allege breach of contract against the defendants and seek collection on money owed pursuant to a promissory note and to foreclose on a mortgage deed.  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).  “To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ․ [A]n agreement must be definite and certain as to its terms and requirements ․ A contract requires a clear and definite promise.”  (Internal quotation marks omitted.)   Cruz v. Visual Perceptions, LLC, 136 Conn.App. 330, 335, 46 A.3d 209, cert. granted in part, 306 Conn. 903, 52 A.3d 730 (2012).

“A contract is express if its terms are stated by the parties, either orally or in writing, and it is implied if its terms are not so stated.   In other words, an implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words, while an express contract is one in which the parties arrive at their agreement and express it in words, either oral or written.”  (Internal quotation marks omitted.)  Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 738, 901 A.2d 1277 (2006).  “Whether [a] contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent ․ A true implied [in fact] contract can only exist [however] where there is no express one.”   (Citation omitted;  internal quotation marks omitted.)  Janusauskas v. Fichman, 264 Conn. 796, 804, 826 A.2d 1066 (2003).  “Although both express contracts and contracts implied in fact depend on actual agreement ․ [i]t is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations.”  (Citation omitted;  internal quotation marks omitted.)  Id., 805.

In the present case, Dorothy Worrell and Lionell Worrell have provided sufficient evidence to demonstrate that Rattray breached a contract with the plaintiffs.   On or about April 25, 2008, Rattray executed the April note in favor of the plaintiffs for $11,584.14 secured by a mortgage on 40 Sharon Road. The April note represents the funds advanced from Dorothy Worrell to Rattray since August 2007 and allows for future advances.   From September 2007 through May 2009, Dorothy Worrell advanced $28,280.15 on a monthly basis to pay the mortgage on 40 Sharon Road. On or about July 10, 2010, Dorothy Worrell provided $60,490.41 to pay off the balance of the loan on 40 Sharon Road. At the time Rattray signed the April note, there was a mutual understanding between Rattray and the plaintiffs and the terms of the note were definite and certain.   The April note required Rattray to pay equal monthly installments due on the first of every month.   Rattray has failed to make payments on the April note.   Therefore, Rattray has breached an express contract and the plaintiffs are entitled to contractual relief.

Dorothy Worrell and Lionell Worrell, however, have not provided sufficient evidence to demonstrate that Escoffery entered into nor consequently breached a contract with the plaintiffs.   Although Escoffery wrote a letter to the plaintiffs acknowledging that approximately $30,000 advanced by Dorothy Worrell constituted a loan, the writing lacked sufficient terms to form a binding contract.   Also, Escoffery writing a letter to the plaintiffs without further action does not rise to the level of conduct necessary to support a finding that an implied contract between the parties was established.   Additionally, assuming arguendo that the letter manifested a clear intent by Escoffery to repay the defendants, the funds were given before the acknowledgment of the loan and therefore cannot be legal consideration in support of a contract.   See Fuchs v. Norton, 32 Conn.Sup. 523, 527–28, 341 A.2d 433 (1975);  see also Dick v. Dick, 167 Conn. 210, 224, 355 A.2d 110 (1974) (“[I]f the contract were to be governed by Connecticut law, it would not be valid in that the consideration is ‘past consideration’ which will not support a promise”).   Therefore, Escoffery has not breached an express or implied contract with the plaintiffs.

IV

UNJUST ENRICHMENT

In counts three and four Dorothy Worrell and Lionell Worrell allege unjust enrichment against the defendants and seek money damages and/or equitable relief in the form of a constructive trust on 40 Sharon Road. “In distinction to an implied [in fact] contract, a quasi [or implied in law] contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation ․ It is based on equitable principles to operate whenever justice requires compensation to be made ․ With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary ․ to examine the circumstances and the conduct of the parties and apply this standard.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Yale Diagnostic Radiology v. Estate of Fountain, 267 Conn. 351, 359, 838 A.2d 179 (2004).  “An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party ․ Accordingly, an implied in law contract is another name for a claim for unjust enrichment.”  (Internal quotation marks omitted.)  Auto Glass Exp., Inc. v. Hanover Ins. Co., 293 Conn. 218, 224 n.7, 975 A.2d 1266 (2009).

“Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract.”  (Internal quotation marks omitted.)   Russell v. Russell, 91 Conn.App. 619, 637, 882 A.2d 98 (2005).  “Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff ․ The doctrine's three basic requirements are that (1) the defendant was benefitted, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment.”  (Citation omitted.)  Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001).

In the present case, the plaintiffs have provided sufficient evidence to demonstrate that Escoffery was unjustly enriched by the plaintiffs.   On or about October 24, 2003, Escoffery unilaterally refinanced her indebtedness when she signed the GreenPoint mortgage on 40 Sharon Road to secure the October note in the stated principal amount of $94,000.   In August 2007, Escoffery moved out of 40 Sharon Road and stopped payments on the October note.   Beginning in September 2007, Dorothy Worrell paid the monthly mortgage payments on the October note.   In July 2010, Dorothy Worrell paid off the balance of the mortgage held by GreenPoint in the amount of $60,490.41.   On September 24, 2009, Escoffery wrote a letter to the plaintiffs acknowledging that the plaintiffs had loaned the defendants approximately $30,000;  however, the conduct of Escoffery and the contents of the letter do not create a contract between the parties.  “The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment ․” (Internal quotation marks omitted.)  BHP Land Services, LLC v. Seymour, 137 Conn.App. 165, 169, 47 A.3d 950, cert. denied, 307 Conn. 927, 55 A.3d 569 (2012).   Even though a contract between Escoffery and the plaintiffs does not exist, evidence of unjust enrichment is clear:  (1) Escoffery benefitted from the monthly mortgage payments by the plaintiffs;  (2) Escoffery acknowledged that, at a minimum, a portion of the money used to pay the October note was a loan but did not repay the plaintiffs;  (3) the plaintiffs have satisfied the mortgage on 40 Sharon Road without receiving repayment.   Therefore, Escoffery has been unjustly enriched and the plaintiffs are entitled to equitable relief.

V

FRAUDESCOFFERY'S COUNTERCLAIM & CROSS CLAIM

In Escoffery's one-count counterclaim and cross claim against Dorothy Worrell, Lionell Worrell and Rattray, respectively, she alleges fraud.   Escoffery asserts that the plaintiffs and Rattray are in “an elaborate scheme” to deny her legal interest in 40 Sharon Road. Escoffery further claims that Rattray, Dorothy Worrell and Lionell Worrell conspired to have Dorothy Worrell pay off the mortgage held by GreenPoint with assets belonging to Rattray and then cause a “frivolous” foreclosure proceeding to be instituted in the name of the plaintiffs.   Escoffery alleges that the purpose of this scheme was for the plaintiffs to hold title to 40 Sharon Road, keeping it out of the marital assets, until the divorce case between Escoffery and Rattray resolved, at which point the plaintiffs would then pass title to 40 Sharon Road back to Rattray.

“[T]he party alleging fraud bears the burden of proving it with clear, precise, and unequivocal evidence.”  (Internal quotation marks omitted.)   Garrigus v. Viarengo, 112 Conn.App. 655, 665, 963 A.2d 1065 (2009).  “The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury ․ [T]he party to whom the false representation was made [must claim] to have relied on that representation and to have suffered harm as a result of the reliance.”  (Internal quotation marks omitted.)  Simms v. Seaman, 308 Conn. 523, 548, 69 A.3d 880 (2013).  “In law, collusion is a species of fraud ․ Thus, collusion may be defined as [a]n agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”  (Citations omitted;  internal quotation marks omitted.)  Black v. GooDorothy Worrellin, Loomis & Britton, Inc., 239 Conn. 144, 163, 681 A.2d 293 (1996).

In the present case, Escoffery has failed to prove the elements of fraud through clear and convincing evidence.   Specifically, there has been insufficient evidence to establish that:  (1) a false representation was made to Escoffery as a statement of fact;  (2) it was known to be untrue by Rattray, Dorothy Worrell and Lionell Worrell;  (3) it was made to induce Escoffery to act upon it;  and (4) Escoffery did act upon that false representation to her injury.   In fact, Escoffery derived a benefit by the advancement of funds by Dorothy Worrell to pay off the mortgage.   The theories presented by Escoffery are unsubstantiated and lack evidence to sufficiently prove fraud.   Therefore, Dorothy Worrell, Lionell Worrell and Rattray have not colluded to commit fraud against Escoffery.

VI

DAMAGESA. Count One—Foreclosure;  Count Two—Collection

The plaintiffs have proven that they are owed damages from Rattray because he has breached a contract in failing to make payments pursuant to a signed promissory note.   Rattray owes the principal amount of $106,996.92 together with interest thereon at 4% per annum (pursuant to the March 7, 2011 note).   In addition to collection pursuant to a promissory note, the plaintiffs have requested foreclosure of the mortgage deed for 40 Sharon Road. “[A] foreclosure action is an equitable proceeding ․ [and][t]he determination of what equity requires is a matter for the discretion of the trial court.”  (Internal quotation marks omitted.)  Citibank, N.A. v. Lindland, 310 Conn. 147, 166, 75 A.3d 651 (2013).  “In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done.”  (Internal quotation marks omitted.)  Moasser v. Becker, 78 Conn.App. 305, 324, 828 A.2d 116, cert. denied, 266 Conn. 910, 832 A.2d 70 (2003).   Therefore, as a remedy to the amount owed, a judgment for foreclosure on the mortgage deed for Rattray's undivided interest in 40 Sharon Road is granted.

B. Count Three—Unjust Enrichment;  Count Four—Constructive Trust

Dorothy Worrell and Lionel Worrell have proven that they are owed repayment in the amount of $106,996.92 from Escoffery because she has been unjustly enriched at the plaintiffs' detriment.   The plaintiffs have requested that a constructive trust on 40 Sharon Road be created.  “The issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched.”   Cadle Co. v. Gabel, 69 Conn.App. 279, 295, 794 A.2d 1029 (2002).  “Our appellate courts have upheld the imposition of a constructive trust on a defendant's interest in real property when, although the written documentation indicated that a defendant held an interest in real property, the facts and circumstances adduced by the evidence presented demonstrated that the defendant was under an equitable duty to relinquish that interest.”  Mitchell v. Redvers, 130 Conn.App. 100, 113, 22 A.3d 659 (2011).  “The proper amount of a constructive trust imposed to remedy unjust enrichment is a question of fact for the trier, akin to a determination of damages.”  Giulietti v. Giulletti, 65 Conn.App. 813, 862, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 96, 97 (2001).   Here, the plaintiffs are not granted a constructive trust on 40 Sharon Road. The evidence presented at trial requires that the plaintiffs receive an award of damages for Escoffery's unjust enrichment, but Escoffery is not under an equitable duty to relinquish her interest in 40 Sharon Road.

C. Prejudgment Interest & Attorneys Fees

1. Prejudgment interest

The plaintiffs have requested additional relief in the form of prejudgment interest.  “It has long been recognized that there is no right to interest on a disputed demand unless a contract or a statute so provides.”  Paulus v. LaSala, 56 Conn.App. 139, 147, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000).  “If, however, it is determined that a defendant has breached a contract, the detention of money that became due as a result of the breach, plus interest thereon, may be awarded at the discretion of the trier of fact.”  Flynn v. Kaumeyer, 67 Conn.App. 100, 104, 787 A.2d 37 (2001).  “The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted ․ The determination is one to be made in view of the demands of justice rather than through the application of an arbitrary rule.”  (Internal quotation marks omitted.)  Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005).

“It is well established that [§ ]37–3a provides a substantive right [to prejudgment interest] that applies only to certain claims ․ [I]nterest [under § 37–3a] ought to be allowed only ․ where there is a written contract for the payment of money on a day certain, as on bills of exchange, and promissory notes;  or where there has been an express contract ․” (Citation omitted;  internal quotation marks omitted.)  DiLieto v. County Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 49 n.11, 74 A.3d 1212 (2013).   Furthermore, “an award of interest under § 37–3a does not require proof of wrongfulness in addition to proof of the underlying legal claim ․ [I]nterest may be awarded in the discretion of the trial court even when the liable party's failure to pay the judgment was not blameworthy, unreasonable or in bad faith.”  DiLieto v. County Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 53 n.13, 74 A.3d 1212 (2013).  “A trial court must make two determinations when awarding compensatory interest under § 37–3a:  (1) whether the party against whom interest is sought has wrongfully detained money due the other party;  and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.”  Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 735, 687 A.2d 506 (1997).

In the present case, the court finds that plaintiff's award of damages against Rattray shall include interest of 4%. Under the contract, Rattray was obligated to make payment on a certain day and has been in default of payment since March 11, 2011.   The March 11, 2011 promissory note signed by Rattray includes a provision for 4% interest on the unpaid amount due.   There have been 1,025 days from and after March 11, 2011 to and including December 31, 2013. $106,996.92 x .04 = $4,279.8768 which divided by 365 equals $11.7257 per day. $11.7257 x 1,025 = $12,018.84.

The plaintiffs are awarded $12,018.84 in interest from Rattray.

Given all of the circumstances of this case, the court declines to award further prejudgment or postjudgment interest against Rattray.

No award of prejudgment or postjudgment interest is made against Escoffery.

2. Attorneys fees

The plaintiffs have requested additional relief in the form of attorneys fees.  “[T]he common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.”   Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 695, 945 A.2d 464 (2008).  “Where a contract provides for the payment of attorneys fees by a defaulting party, those fees are recoverable solely as a contract right.”  (Internal quotation marks omitted.)  N.E. Leasing, LLC v. Paoletta, 89 Conn.App. 766, 778, 877 A.2d 840, cert. denied, 275 Conn. 921, 883 A.2d 1245 (2005).

Our Supreme Court has held that there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing ․ [It also has] noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described ․ Even though a court may employ its own general knowledge in assessing the reasonableness of a claim for attorneys fees, [our Supreme Court] also [has] emphasized that no award for an attorneys fee may be made when the evidence is insufficient.

Accordingly, when a court is presented with a claim for attorneys fees, the proponent must present to the court at the time of trial ․ a statement of the fees requested and a description of services rendered.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)

Id., 779.

The trial court has the ability to assess “the reasonableness of the fees requested using any number of factors, including its general knowledge of the case, sworn affidavits or other testimony, itemized bills, and the like ․ [T]he value [of reasonable attorneys fees] is based upon many considerations.”  (Internal quotation marks omitted.)  Id., 780.

In the present case, the plaintiffs are contractually entitled to the reasonable cost of attorneys fees from Rattray pursuant to the April note.   The April note provides in relevant part:  “If the holder incurs collection costs, including court fees and attorneys fee [sic] in collecting on this obligation, the maker shall be liable to the holder for said fees and costs as long as they are reasonable and related to the collection of this obligation.”   Additionally, the plaintiffs have submitted into evidence an attorneys fee affidavit and billable costs associated with collection on the April note.   The affidavit has not been challenged.   Therefore, the plaintiffs are entitled to reasonable attorneys fees from Rattray iDP1⌑The plaintiffs are not entitled to attorneys fees from Escoffery

VII

CONCLUSION

Based on the foregoing, judgment shall enter (i) in favor of the plaintiffs against the defendant Rattray on counts one and two;  (ii) in favor of the plaintiffs against the defendant Escoffery on count three;  (iii) in favor of the defendant Escoffery on count four;  and (iv) against the counterclaim plaintiff, Escoffery.

Accordingly, judgment of foreclosure is entered in favor of the plaintiffs Dorothy Worrell and Lionell Worrell as to the defendant Rattray's interest in 40 Sharon Road. Further action by the court awaits the filing of appropriate motions in connection therewith.

Damages are awarded on the several counts of the complaint as against defendants Rattray and Escoffery in the amount of $106,996.92.   The court also orders attorneys fees payable by defendant Rattray in the amount of $28,950.09.   The court orders interest payable by Rattray in the amount of $12,018.84 as of December 31, 2013.   Interest under the note will continue to accrue and be payable at 4% per annum.

The court does not award any prejudgment or postjudgment interest or attorneys fees against the defendant Escoffery.

* * * *

PROCEDURAL HISTORY IN DISSOLUTION PROCEEDING

This action seeks the dissolution of the parties' ten-year marriage.   The action was commenced by a complaint dated July _ 2010(sic) which was returnable to the court on August 31, 2010.

The court considered all of the evidence presented, applicable common and statutory law, including without limitation, General Statutes §§ 46b–56, 46b–56a, 46b–56c, 46b–81, 46b–82, 46b–84, and 46b–215a, and the provisions of the Child Support and Arrearage Guidelines (guidelines).   The court also took judicial notice of the court orders in the file.

Pursuant to the order of April 12, 2011, the plaintiff was ordered to pay spousal support to the defendant in the amount of $50 a week.

The court again notes that it did not find the testimony of either Escoffery or Rattray to be compelling, persuasive or particularly credible.

In addition to the findings made above with respect to the civil action, the court makes the following findings of fact by a fair preponderance of the evidence.

II

FINDINGS OF FACTA. Relevant Facts1. Initial Findings

Escoffery and Rattray were married on September 3, 1993 in Hartford, Connecticut.   Both have lived in the State of Connecticut for at least one year before the filing of the dissolution complaint.   All statutory stays have expired.

Three children were born to Escoffery and Rattray during the term of the marriage:  Nina born February 25, 1995, Marcus born September 3, 1996 and Michael born August 18, 1999.

Escoffery and Rattray entered into a final parenting and custody agreement which was approved and ordered by the court on June 2012 pursuant to which they agreed that Escoffery would have sole legal and physical custody of the minor children, Marcus and Michael and, as Nina was at the time a minor, Rattray would have sole legal and physical custody of Nina.

Escoffery suffers from hypertension and low iron/anemia.   She is 52 years old.

Rattray is 63 years old.   He attended high school in Jamaica and attended some college classes while living in United States.   When he first came to the United States he did not have the necessary documents to work in this country.   He has them now.

The parties do not have any joint accounts.

There was little credible evidence as to the bank accounts held by Rattray in Canada.

The credible evidence is that Escoffery paid the household bills while the parties were residing together, including the mortgage payments.

2. Stipulations of Facts by the Parties

The parties stipulated that the Jamaican properties owned by the defendant had the following values (expressed in U.S. dollars):  Lot 216 Cardiff Hall—$39,052 and Lot 262 Cardiff Hall—$126,918 for a total value of both properties of $165,970.

The parties stipulated to the admission of the following reports with respect to the retirement assets of the parties:  (i) the reports by James Russell for the plaintiff and for the defendant;  and (ii) the reports by James Gobes for the plaintiff and for the defendant.

3. Escoffery's and Rattray's Earnings and Retirement Assets

As set forth above, Escoffery works as a pension investigator for the U.S. government.   She works out of Boston, Massachusetts and Hartford.   According to her financial affidavit, she receives a weekly gross income of $2,170.   On the financial affidavit, she deducted the amount she pays for union dues, for health and life insurance, as a contribution to a CHET account and a garnishment by the IRS to arrive at a net income of $1,231.   The court finds her net income, for purposes of determining child support and spousal support, if any, to be $1,478 a week.

Escoffery has worked in the same job throughout the marriage and has been the parent primarily providing financial support to the family.   Rattray, upon his arrival to this country, contributed the funds necessary for the down payment on the marital home.

During the marriage, other than a short stint as a carpenter's apprentice and a part-time job at UPS, Rattray did not work outside the home.

During the course of the proceedings Rattray was ordered by the court to conduct a job search (order 141 on October 11, 2011).   He has failed to do so.   He has not worked for years.   There is no reason for Rattray not to be working.

Escoffery seeks to have the court impose an earning capacity on Rattray.   The court finds it appropriate to determine that Rattray has an earning capacity at this time and attributes to him a minimum wage earning capacity of $330 a week gross and $289 net.¹

Prior to the marriage, as set forth above, Rattray owned three pieces of rental property in Canada known as Kips Lane, Acorn Place and Springbank Lane and two parcels of land in Jamaica known as 216 and 262 Cardiff Hall;  during the marriage Rattray sold Kips Lane and Acorn Place.

Also during the term of the marriage, as set forth above, Rattray engaged in the development of a guest house on one of the Cardiff Hall sites in Jamaica.   Escoffery has acknowledged that she knew the defendant was engaged in the development of a guest house on his property and that she was unaware of the source of funds for the same.

Rattray continues to own the Springbank Lane rental property in Canada.   Lionell Worrell manages the property for Rattray.   Lionell Worrell testified, credibly, that (i) the property generates approximately $16,000 a year in rental income;  (ii) there is no mortgage on the property;  (iii) the tenant(s) pay their own utilities;  (iv) some of the rental income goes for repairs;  and (v) the taxes on property are about $300 a month (or $3,600 a year).   The court finds Rattray to receive, directly or indirectly, net rental income, after taxes, from the Springbank property in the approximate amount $12,400.   There was no evidence of the amount spent a year on repairs/improvements to the property.

Escoffery has a Federal Employee Retirement System (FERS) pension and a Thrift Savings Plan (TSP).  Despite the requirement that she provide updates of the same as a part of the mandatory disclosure under Practice Book § 25–32(b), she failed to do so.   The date of the last provided statement for the TSP was January 1, 2012.   Mr. Russell, the expert retained by the defendant, stated in his report dated July 30, 2013, that there would typically have been earnings from January 1, 2012 through July 31, 2013.   Indicative of the possibility for earnings, Mr. Russell's report stated that the S & P index rose from 1257 to 1687 over that period which equates to a 34% increase.   Based on the report prepared by Mr. Gobes, the date of the last statement provided to him for his valuation of the plaintiff's FERS pension was, likewise, January 1, 2012.

Escoffery's testimony that she was unable to obtain the information necessary to provide an update of the value of her FERS pension and TSP was simply not credible.

During the pendency of these proceedings, Escoffery was permitted by court order to withdraw funds from her FERS account.   On June 7, 2011, she was permitted to withdraw $5,000 to pay the guardian ad litem for the children, and $10,000 to defend the then pending civil suit.   Pursuant to an order of the court on July 20, 2012, the plaintiff was permitted to withdraw from her TSP account an amount necessary to net $2,202 and “said sum will be credited to her at the time of trial.”   The funds were to be paid over to Rattray's counsel to satisfy an arrearage in child support and contributions due for household support due from Escoffery to Rattray in the amount of $1,827 and $375 for legal fees.   There is additional credible evidence that in total more than $30,000 was withdrawn from the TSP in 2011.

Mr. Russell valued the marital portion of Escoffery's FERS pension to be $322,391 which was determined based on a net present value of $354,276 reduced by a marital covertures fraction of 91%.  (Exhibit P.) Mr. Russell noted in his report that there was an additional balance of $283,449.62 in the TSP as of January 1, 2012.

If the same marital covertures fraction of 91% is applied to the TSP balance as of January 1, 2012, the marital portion of the TSP as of such date would be approximately $258,000.

Mr. Gobes valued the marital portion of Escoffery's FERS pension to be $304,506 as of January 1, 2012.

Rattray has a pension from Rio Tinto Alcan from his employment in Canada.

Rattray also failed to provide updated information with respect to the value of his pension.   The statement provided was dated April 1, 2011.

Mr. Russell determined the net present value of Rattray's pension, in U.S. dollars, as of August 1, 2013 to be $54,742.   He found the marital covertures fraction applicable thereto to be 29%.   Accordingly, the marital portion of Rattray's pension was determined to be $15,875.   His pension is not in pay status.

Mr. Gobes valued Rattray's pension as of July 15, 2013 to be $59,661.   He did not convert the same from Canadian to U.S. dollars nor did he assign a marital portion to the amount (as he did not have the date of Rattray's hiring).   Assuming the same coverture fraction of 29%, the court finds the marital portion of Rattray's pension as found by Mr. Gobes to be $17,301, and assuming the same conversion rate used by Mr. Russell of $1 CAD equals $0.97 USD, the value would be approximately $16,783.

It is within the court's discretion to accept or reject the opinions of expert witnesses.  Evans v. Taylor, 67 Conn.App. 108, 113 (2001).

The court finds the marital portion of Escoffery's FERS to be $322,391 and of the TSP to be $258,000.

The court finds the marital portion of Rattray's pension to be $15,875 USD.

Rattray has no life insurance at this time.   Escoffery has life insurance with a death benefit of $500,000.

Escoffery has not filed a tax return for 2011 or 2012 because she believes she owes taxes.

Escoffery at one time had three CHET accounts with funds set aside for each of the children's higher education.   Approximately three years ago she cashed in the account that was in Nina's name and used the money for household expenses.   She did not cash in the CHET accounts held for the boys that live with her.

4. The marital residence, other parcels of real property and personal property

The value of the home has been found to be $180,000 subject to a principal indebtedness of $106,996.92.   Rattray alone owes interest thereon of 4% per annum.   The equity of the marital home is found to be approximately $73,000 after deducting the principal of $106,996.92.

The value of the Springbank Drive property owned by Rattray is found to be $165,785.   The defendant testified that he thought he paid $60,000 CAD for the property sometime around 1983;  there was no evidence of the exchange rate in effect at the time.

There are lawsuits pending in Jamaica with respect to the development of the guest house on the Cardiff Hall property.   The contract price for the construction of the guest house was $10,000,000.   He has paid $8,000,000 and has not paid the balance.

As noted above, the parties stipulated that the total value (in U.S. dollars) of the two parcels in Jamaica, with improvements thereon, is $165,970.   In 1988, according to the land registry records, Rattray paid $115,000 for lot 216 and $120,000 for lot 262.  (Exhibits V and U, respectively.)   An exchange rate chart was introduced as Exhibit 6. The exchange rate in 1988 on average was 5.49 to 1. Accordingly, $235,000 was on average equivalent to approximately $42,885 USD. Therefore, the premarital value is approximately $42,885 which subtracted from the total current value of $165,970 results in a difference of $123,085.   The court finds a marital value of approximately $123,085 USD for the Jamaican property.

Rattray failed to produce any recent Canadian bank statements.   The court draws a negative inference due to this failure to provide the requested information.

Where a party through his own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award.  Palazzo v. Palazzo, 9 Conn.App. 486, 488–89 (1987).

5. Breakdown of the Marriage

The parties married after a brief and long-distance courtship.   They had the children shortly after the marriage.

The court finds that Rattray was satisfied to stay home and be a caregiver for the children while Escoffery worked, but that Escoffery became dissatisfied with that arrangement and wanted Rattray to obtain employment.   The court finds credible Escoffery's claim that while Rattray was the parent home and primarily responsible for the children, he did not do much of anything else in the house and that she would come home from work to find dishes undone and the house a mess.   Resentment grew.

Escoffery testified the marriage was over in 2001 and that the parties have not engaged in a sexual relationship since 1999 or 2000.

The court does not find that testimony entirely credible.   Escoffery, after Rattray's arrest in 2006 for solicitation of oral sex from a minor, did not believe the same and did not require Rattray to leave the house despite the request from the department of children and families that she do so—the cost she incurred for such belief was the removal of the children from her home by the department of children and families.   After Rattray removed himself from the home in 2006, the children were returned.   Escoffery testified that she now believes the allegations.

It is clear that the marriage has broken down irretrievably.

While both Escoffery and Rattray bear some blame for the breakdown of the marriage, it is clear that Rattray bears the much greater fault.

6. Relationship of the Parties with the Minor Children

The relationship between the minor children and the defendant is broken at this time.   The parties have agreed that it is in the children's best interest that the plaintiff has sole custody of the minor children at this time.

Nina continues to reside with Rattray in the marital home;  she is over the age of majority and attends college.

III

ADDITIONAL FINDINGS AND ORDERS

The court makes the additional findings and enters the following orders:

A. Jurisdiction and Dissolution

The court has jurisdiction in this matter which has been pending for more than ninety days.

The allegations of the complaint have been proven to be true.   The marriage has broken down irretrievably.   A decree of dissolution may enter.

B. Child Custody and Parenting Plan

The Final Parenting and Custody Agreement (the parenting agreement) as ordered by the court is incorporated herein by reference and made a part of the judgment.

C. Post–Majority Education

Under the parenting agreement, the court reserved jurisdiction to determine educational support pursuant to the provisions of General Statutes § 46b–56c and the same is incorporated herein.

D. Child Support

Escoffery's net income is $1,478 and Rattray's net income equals $482 ($289 of the $482 is based on the net income available due to his earning capacity and the difference of $193 as the net income from his rental income).

Based on the income of the parties as found above, the court finds, under the guidelines, the presumptive support payable by Rattray for two children with Escoffery having residential custody of the children to be $103 a week.

After considering the credible testimony and reviewing the financial affidavits, the earnings of the respective parties, and the deviation criteria set forth in Section 46b–215a–3(b)(6) of the guidelines, the court finds the application of the guidelines to be appropriate and orders Rattray to pay child support in the amount of $103 per week.   The court orders the child support payments to be made by immediate wage withholding.

The court orders Rattray to pay 19% of the costs of unreimbursed medical, dental, optical, pharmaceutical, psychological, psychiatric, and orthodontic expenses, including any deductibles, as incurred for the minor children.   Escoffery shall be responsible for the balance of such costs.

The defendant is ordered to search for employment.

E. Alimony and Pendente Lite Spousal Support

The purpose of General Statutes § 46b–82 is to recognize the obligation of support that spouses assume toward each other by virtue of the marriage.   Smith v. Smith, 249 Conn. 265, 275 (1999) (“the purpose of both periodic and lump sum alimony is to provide continuing support”).  Mickey v. Mickey, 292 Conn. 597, 615–6, (2009).

Based upon the facts of this case, and after consideration of applicable law, including without limitation, the statutory factors set forth in General Statutes § 46b–82, the court orders that Rattray shall pay $1.00 per year alimony to Escoffery, modifiable as to amount only if Escoffery is called upon to pay any portion of the indebtedness payable to Lionell Worrell whether said debt(s) are discharged in bankruptcy or not.   Said alimony shall terminate when he satisfies his obligations to Lionell Worrell as set forth herein.

Except as set forth above, the court does not award alimony to either party.

The plaintiff failed to pay the pendente lite support of $50 a week.   She has made no payment of the same since August 9, 2013.   The plaintiff is ordered to pay the arrearage to the defendant (which amount shall be determined by counsel and if they are unable to agree, the court retains jurisdiction to determine the same).   The payment is to be made in full within ninety days of the date of judgment.

F. Medical Insurance for the Parties and the Children

The plaintiff shall continue to provide medical insurance for the minor children so long as the cost is reasonable.

If medical insurance for the minor children is not available to either party at a reasonable cost, which is defined as an amount not to exceed 7.5% of their respective net income, then the plaintiff shall enroll the child in the HUSKY program or its equivalent.

The parties shall maintain, at their own expense, medical and dental insurance coverage for themselves.

G. Division of Property and Liabilities

“The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well ․ General Statutes § 46b–81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property.”  (Citations omitted;  internal quotation marks omitted.)  Roos v. Roos, 84 Conn.App. 415, 420, cert. denied, 271 Conn. 936, (2004);  see Clark v. Clark, 115 Conn.App. 500, 505 (2009);  also see General Statutes § 46b–81.

1. Damages owed to Dorothy Worrell and Lionell Worrell

Rattray shall assume the obligation to pay all of the damages awarded to Dorothy Worrell and Lionell Worrell under Docket No. HHD CV 11–6020188–S.

Rattray shall indemnify and hold Escoffery harmless from liability for all of the damages so awarded to Dorothy Worrell and Lionell Worrell.

2. Marital home

The court awards the marital home to Rattray.   Escoffery shall transfer her interest in the home to Rattray and Rattray shall assume all debts and liabilities related thereto.   Rattray shall indemnify and hold Escoffery harmless from any and all liability associated with the home, including all mortgages, taxes and other costs related thereto.

3. Real property and personal property

(a) Rattray shall retain the property at Cardiff Hall, Jamaica.   He shall retain any proceeds awarded from his lawsuit.   Rattray shall indemnify and hold Escoffery harmless from any and all liability associated with the property.

(b) Rattray shall retain the property at Springbank Lane. He shall retain any and all rental income from the property—past, present and future.   Rattray shall indemnify and hold Escoffery harmless from any and all liability associated with the property.

(c) Each party is awarded their own jewelry and clothing.

(d) Rattray shall retain the furnishings and fixtures in the marital home.

(e) Escoffery shall retain the furnishings in her apartment.

(f) Rattray shall retain the 2004 Ford Windstar and Escoffery shall retain the 200 Nissan and the 2012 Honda.   Escoffery shall be solely responsible for the loan secured by the Honda.   Each party shall execute such transfer documents as shall be required to effectuate the foregoing orders and each shall indemnify and hold the other harmless for all liability associated with the vehicle(s) awarded to them.

4. Bank accounts

(a) The plaintiff and defendant shall retain as her/his sole property free and clear of any claim by the other their respective bank accounts as shown on their financial affidavits.

(b) Escoffery shall retain the CHET accounts held by her for the benefit of the minor children.   The amount in said accounts shall be first applied to the children's tuition prior to any contribution by both/either parent for any remaining amount payable under § 46b–56c.

5. Retirement accounts

(a) The defendant Rattray is awarded 33% of the marital portion of Escoffery's FERS pension, together with any costs of living adjustments.

It is contemplated that the marital portion, or his coverture share of the plaintiff's FERS retirement, shall be calculated as follows:

Benefit amount x number of months married while earning the pension x 33% divided by total number of months earning the pension.

To the extent Escoffery must elect a former spouse survivor annuitant at the time of her retirement to effectuate this order, she must do so, provided the plan and the law allow.

The parties shall execute a domestic relations order and/or other documents necessary to effectuate the transfer.   The parties shall utilize Attorney Elizabeth McMahon to prepare the required documents and each shall pay one-half of the costs and fees incurred in connection therewith.

The court shall retain jurisdiction over the award of the portion of the pension.

(b) Escoffery shall retain her TSP up to the amount of $283,449 (that is she is to retain her premarital value of approximately $25,449 and the marital portion of $258,000).   To the extent there is an increase in the value of the TSP since January 1, 2012 to the date of this memorandum, then 33% of the increase is awarded to Rattray.   Escoffery shall cause the amount to be awarded to Rattray to be withdrawn from the TSP and she shall pay all taxes and penalties associated with the withdrawal.  (For example, if the TSP is valued as of the date of this memorandum at $310,000, then the difference between $310,000 and $283,449 or $26,551 shall be shared with Rattray and Rattray shall receive 33% or $8,761.83 thereof.   Rattray shall receive the sum of $8,761.83 and Escoffery shall pay the taxes and penalties associated with the withdrawal and transfer of the same.)   The Court shall retain jurisdiction to effectuate the above orders.

(c) Rattray shall retain his pension with Rio Tinto Alcan.

6. Life insurance

To the extent available at a reasonable cost, each party shall maintain life insurance in an amount of not less than $100,000, naming the children the irrevocable beneficiaries thereon, so long as each such child is a full-time student or until such child reaches twenty-three years of age, whichever is first to occur.

These amounts are further modifiable, based upon a change in income and the remaining eligibility of the child(ren) for support under General Statutes §§ 46b–84 and 46b–56c.

To the extent the same is available, the parties shall provide proof of maintenance of said policies and the payment of applicable premiums therefore to the other party on or before September 30 of each year.   The parties shall also notify the insurance companies to send to the other party duplicate notices of any potential lapse or cancellation for non-payment of premium for such policies.

7. Debts

Each party shall be responsible for the debts shown on their respective financial affidavits, except that Rattray shall be solely responsible for payment of the real estate taxes due on the Sharon Road property.

H. Income Tax Filings and Tax Exemptions

For the past tax years, the parties may elect to file joint or individual tax returns.   If the parties file joint returns, each party shall indemnify the other for any liability resulting from a failure to accurately disclose their respective income, earnings, distributions or dividends.   If the parties file joint federal and state income tax returns, the parties shall share any refund—67% to Escoffery and 33%—Rattray and any liability equally.   From and after the 2013 tax year, and for so long as the minor children are eligible to be taken or claimed as a tax exemption, Escoffery shall claim such child(ren).   To the extent Nina is eligible to be taken or claimed as a tax exemption, Rattray shall claim such exemption.

I. Tax Indemnification

Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that party's income or deductions.

J. Tax Information

For so long as Rattray has an obligation to pay child support, the parties will annually exchange their W–2s, 1099s, K–1 and similar forms by February 15 each year and will provide each other with their income tax returns within five days of filing.

K. Fees

Each party shall be responsible for the payment of their respective attorneys fees and costs incurred in connection with the prosecution and defense of the dissolution proceeding.

L. Effectuation of Orders

Each party is ordered to sign whatever documents are necessary, and as presented to them by the other party, to effectuate these orders within ten days of presentment.

Unless otherwise specifically set forth herein, these orders are effective immediately.

IV

PENDING MOTIONSPlaintiff's motions for contempt 149, 194 and 198 and Defendant's Motion for Order 192

When an allegation of contempt is made our courts have noted that “[i]n a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263, 271 (1995).  “The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court ․ One cannot be placed in contempt for failure to read the court's mind.”  Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).  “Noncompliance alone will not support a judgment of contempt.”   Parlato v. Parlato, 134 Conn.App. 488 (2009).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful (sic).”  Wilson v. Wilson, supra, 38 Conn.App. 275–76;  Niles v. Niles, 9 Conn.App. 240, 253–54 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).

“[E]ven 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.”  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988);  see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, cert. denied, 210 Conn. 802 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).

“It is elementary that court orders must be complied with until they are modified by a court or successfully challenged.”  Eldridge v. Eldridge, 244 Conn. 523, 530 (1998).

The following additional facts have been found by a fair preponderance of the evidence and are necessary to address the pending motions.

1. As to plaintiff's motions 149 and 198

The automatic orders went into effect upon service of the complaint and a copy of the orders on Rattray which occurred on August 6, 2010.

There is no dispute that while the automatic orders were in place Rattray executed a note and mortgage deed dated March 7, 2011 to secure the loans from Dorothy Worrell and Lionell Worrell and that the mortgage encumbers the marital property.   Doing so is a violation of a clear and unambiguous court order.

Rattray transferred approximately $120,000 to Dorothy Worrell to repay loans Dorothy Worrell had made to him (and for the benefit of Escoffery).   The first payment of approximately $61,000 was sent in July 2010, prior to the automatic orders being effective.   The second transfer was made on or about August 11, 2010 after the orders were served.

The funds for the second transfer came from the sale of an asset that Rattray owned prior to the marriage.

The motions are granted.

The court finds Rattray in contempt for violation of the automatic orders and orders Rattray to pay $2,000 in attorneys fees to the plaintiff on or before March 31, 2014.

2. As to plaintiff's motion 194

On June 13, 2013, Rattray was ordered by the court, Ficeto, J., to sign an authorization within forty-eight hours to permit Escoffery to withdraw money from her TSP. There is a clear and unambiguous court order.   Rattray did not sign the authorization within such time period.

The court does not, however, find the contempt to be willful based on the evidence presented.

The motion is denied.

3. As to defendant's motion 192

The defendant seeks an educational support order directing Escoffery and Rattray to share the cost of the college education of their daughter Nina.

As found above, the plaintiff had a CHET account for Nina but the funds were withdrawn therefrom and used to pay household expenses for the plaintiff and the children.

The court finds it is more likely than not that the parents would have provided support to Nina for higher education if the family had remained intact.

It is clear and unfortunate that the plaintiff and Nina do not have a good relationship at this time.

The court finds that the defendant has not satisfied the conditions set forth in 46b–56c for the entry of an order sharing the costs of Nina's college expenses as there was no evidence that the plaintiff was consulted before Nina enrolled in Western Connecticut State College and the evidence was that the plaintiff had no idea of the cost of such tuition or how Nina's tuition was being paid.

The motion is denied.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. See Tanzman v. Meurer, 309 Conn. 105 (2013)..  FN1. See Tanzman v. Meurer, 309 Conn. 105 (2013).

Olear, Leslie I., J.