John A. Welch, Jr. v. Mary T. Welch (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT

A review of the record reveals that the parties were divorced pursuant to a marital settlement agreement dated December 26, 2012.   Under paragraph 1, pg. 12, captioned “Division of Assets and Liabilities,” the parties agreed that the plaintiff, Mr. Welch, “shall transfer 70% of the value as of the date of dissolution of his retirement account.   The value as of the date of dissolution shall be computed to include the total value of the account as if Mr. Welch, had fully paid back any outstanding loans against this account.   Any costs associated with the preparation of a qualified domestic relations order or domestic relations order necessary to effectuate this order shall be shared equally by the parties.   Mr. Welch shall retain free and clear from any claim by Ms. Welsh the pre-marital pension listed on his affidavit.”

FINDINGS OF FACTS

The defendant, through her attorney filed a motion for order seeking that the court find the plaintiff in contempt and to compel, postjudgment the transfer of seventy (70%) of the value as of the date of the hearing.   The value of the retirement account had increased in value from $48,849.25 on December 31, 2012 to $55,594.86 on October 16, 2013.

The parties appeared before the undersigned on January 22, 2014.

The plaintiff was to transfer seventy (70%) of the value of his retirement account as of December 26, 2012, the date of the dissolution of the marriage, to the defendant.   The defendant had mailed an excess of thirteen (13) letters to the plaintiff over the course of time after the dissolution of the marriage, until the time the parties appeared before the undersigned with a motion for contempt on January 22, 2014.   Some of the thirteen (13) letters were by certified mail, requesting the retirement account transfer be done.

LEGAL DISCUSSION

The trial court has no inherent power to transfer property from one spouse to another but rather, that power must rest upon the statute.   The court's authority to transfer property pursuant to a dissolution proceeding rests on C.G.S. § 46b–81.  “The court's authority to divide the personal property of the parties must be exercised at the time it renders judgment dissolving the marriage.”   A postjudgment modification of a property distribution is not permitted.  “A court, therefore, does not have the authority to modify the division of property once a marital dissolution becomes final ․ Although the court does not have the authority to modify a property assignment, a court does have the authority to issue post judgment orders effectuating its judgment.”   Stechel v. Foster, 125 Conn.App. 441, 446–7 (2010).   The court was presented with no facts or law suggesting an exception to this rule.

Under C.G.S. Sec. 37–3a, Rate Recoverable as Damages (a) “Except as provided in sections 37–3b, 37–3c and 52–192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.”

“The trial court has the discretion to decide whether to make an award of interest under Sec. 37–3a.   The question of whether interest is a proper element of recovery ordinarily rests upon whether the detention of money is or is not wrongful.   When a former spouse is not justified in failing to pay sums due ․ the award of interest is proper.”  (Internal quotation marks omitted.)  Picton v. Picton, 111 Conn.App. 143, 155–56, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009).  “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 ․ Factual findings, such as those determinations, are reviewed under the clearly erroneous standard of review.”  Behrns v. Behrns, 124 Conn.App. 794, 818, 6 A.3d 184, 200 (2010);  See also, Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 31, 830 A.2d 240 (2003);  and Picton v. Picton, supra, at 155, 958 A.2d 763.

“The 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.”   (Internal quotation marks omitted.)  Berzins v. Berzins, 306 Conn. 651, 661, 51 A.3d 941 (2012).  “This rule does not apply, however, where the opposing party has acted in bad faith ․ It is generally accepted that the court has the inherent authority to assess attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons ․ This bad faith exception applied, not only to the filing of an action, but also in the conduct of the litigation ․ Moreover, the trial court must make a specific finding as to whether counsel's [or a party's] conduct ․ constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers to impose attorneys fees for engaging in bad faith litigation practices.”  (Internal quotation marks omitted.)  Munro v. Munoz, 146 Conn.App. 853, 857–58 (2013).   See also, Maris v. McGrath, 269 Conn. 834, 844–45, 850 A.2d 133 (2004).

“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.

ORDERS

1. The plaintiff is found in contempt.

2. The plaintiff shall transfer seventy (70%) percent of the value as of the date of dissolution of his retirement account or $34,194.00 plus $3419.40 as interest for a total of $37613.40 to the defendant and shall provide the QDRO forms at his sole expense.

3. The plaintiff shall pay the sum of $1,257.70 to the defendant for her counsel fees but receive a credit of 1/2 of whatever fees he incurs to prepare the QDRO.

BY THE COURT

Kenneth L. Shluger, Judge

Shluger, Kenneth L., J.