Ruth Perry v. Stephen C. Perry (2014)

MEMORANDUM OF DECISION

Before the court is the defendant's motion for order re real estate, post judgment (# 379/# 380).¹  In his motion, the defendant alleges that the plaintiff failed to comply with the court's order to list and sell the parties' former marital home (“marital home”).   As this case has a long history in this court, there is no need to rehash its details at length.   Therefore, the court's recitation of the procedural and factual background of this case will be brief and be limited to the pertinent aspects of such history in order to provide a general overview of how the instant action came to the court's attention for disposition.

Facts of the Case

Based upon the relevant and credible evidence presented, and the court's observation of the demeanor of the witnesses, the court makes the following findings.   The parties were married on August 22, 1992 in Los Angeles, California.   There are two minor children who are the issue of the parties' marriage, to wit:  Katherine Perry, born on August 2, 1996, and Claire Perry, born on September 30, 1998.   The parties' marriage was dissolved on November 26, 2008 (Gordon, J.).   In its memorandum of decision, the court ordered, inter alia, that the marital home be sold, that it be immediately listed for sale with a mutually agreed upon listing broker and price, that the parties shall accept any offer which is in an amount equivalent to or greater than 95% of the then listing price, provided all other terms of sale are reasonable and that the net proceeds of sale be divided equally between the parties.   Additionally, the court awarded exclusive possession of the marital home to the plaintiff until such time as the marital home is sold.   On January 23, 2013, this court (Emons, J.) ordered the parties to list the marital home for sale “as-is” with a listing price of $1,550,000.00, to use Coldwell Banker, their agreed upon listing agent, to market the marital home for sale and that both parties be advised of all offers.   On February 20, 2013, Laurie Balestrino, a Coldwell realtor, prepared a listing contract that was executed by the defendant on that same day.   From that point forward, it was all downhill.   Although the defendant's counsel notified Balestrino that he, the defendant and all parties should be copied on correspondence relating to offers tendered, the defendant ² subsequently instructed Balestrino not to communicate with the plaintiff.   Initially, both parties were scheduled to participate in a walk-through of the marital home together with a Coldwell agent named Alice Jennings.   But the defendant changed his mind because of the parties' lingering animosity.³  To avoid any conflicts that may arise between the parties' given their past, the defendant proposed that his secretary serve as his proxy.   The plaintiff objected to this alternative arrangement because the secretary “was not a real estate professional.”   When the walk-through proceeded as planned, the defendant was not present.   Jennings notified both parties of her recommendation that certain repairs be undertaken to maximize the sale potential of the marital home, which she considered to be dated and in need of repairs.   The plaintiff agreed with Jennings' recommendations, but the defendant disagreed and did not cause any such repairs to be performed.   In the opinion of the defendant, the marital home could be more marketable as a tear down.   Balestrino shared the same opinion as the defendant and made reference to a recent tear down located behind the marital home that sold for $1.2 million dollars during her testimony.   Balestrino received 6 offers that included the defendant's removal of the marital home's underground oil tank as a condition of sale and a counteroffer made by the defendant.   Balestrino notified the parties' attorneys and the defendant separately whenever she received an offer.   The offers made were in the following denominations (in millions):  $1.1, $1.2, $1.35, $1.35, $l.375 and $1.4 (up to $1.45) million dollars.⁴  Of the 6 offers, Balestrino testified that 4 were from builders and 2 came from prospective homeowners.   According to Balestrino, the defendant responded to only 3 of the 6 offers and would not always rapidly respond to said offers within a 24–hour window.   As an example, Balestrino testified that she did not receive a timely response from the defendant regarding the $1.35 million dollar offer and, in relation to an all cash offer of $1.4 (up to $1.45) million dollars, the response provided by the defendant addressed the issue of the removal of the underground oil tank (“tank”) but not the price.   The defendant disputed her testimony and testified that he is not inclined to assume an “unquantifiable risk” by bearing the burden of remediation as a condition of sale if an offer was less than $1.45 million dollars.   According to Balestrino, the plaintiff was cooperative throughout the listing and showing of the marital home.   Balestrino further testified that she informed the parties' attorney and the parties that $1,550,000 listing price was too high and needed a price reduction after 30 days.   The defendant disagreed with this recommendation by Balestrino.   On August 20, 2013, the listing contract expired and the marital home is not listed for sale.   The defendant made a formal written proposal to purchase the plaintiff's interest in the marital home, but the plaintiff rejected the defendant's offer.   The defendant testified that he left the marital home 8 years ago and does not visit it because the plaintiff makes accusations against him and calls the police on him.   The defendant further testified that he wishes to return to the marital home because of its convenience.   In his request for relief, the defendant is seeking exclusive possession, to buy out the plaintiff's interest and assume payment of the mortgage and homeowner's insurance premium and a termination of the court's order granting exclusive possession to the plaintiff.   Beginning on September 17, 2013, a two-day hearing was held by the court.

Statement of Law

The applicable law that controls the equitable division of property is governed by General Statutes § 46b–81.  “At the time of entering a decree ․ dissolving a marriage ․ the Superior Court may assign to either the husband or wife all or any part of the estate of the other ․” § 46b–81(a).  “Accordingly, the court's authority to divide the ․ property of the parties, pursuant to § 46b–81, must be exercised, if at all, at the time that it renders judgment dissolving the marriage.”  Rathblott v. Rathblott, 79 Conn.App. 812, 819 (2003).  “[T]he statute ․ enables the trial court to transfer property in a marital dissolution action, [but] does not [provide for the court to] retain continuing jurisdiction over any portion of the judgment that constitutes an assignment of property ․ Therefore, a property division order generally cannot be modified by the trial court after the dissolution decree is entered ․” (Citations omitted;  internal quotation marks omitted.)   Blaisdell v. Blaisdell, Superior Court, judicial district of New London at Norwich, Docket No. FA 00 0121221 (October 3, 2001, Swienton, J.) (30 Conn. L. Rptr. 543, 543–44).  “Connecticut courts have repeatedly recognized both explicitly and implicitly that an order for the sale of property in a dissolution judgment is a nonmodifiable assignment.”  Roberts v. Roberts, 32 Conn.App. 465, 469 (1993).  “Although the court does not have the authority to modify a property assignment, a court, after distributing property, which includes assigning the debts and liabilities of the parties, does have the authority to issue postjudgment orders effectuating its judgment.”  (Internal quotation marks omitted.)  Fewtrell v. Fewtrell, 87 Conn.App. 526, 531 (2005).   Arenholz v. Arenholz, Superior Court, judicial district of Fairfield, Docket No. FA 00 0377731 (January 10, 2013, Owens, J.T.R.) (“court lacks authority under General Statutes § 46b–81 to issue postjudgment orders regarding the modification of the distribution of property, unless the party's postjudgment motion seeks to effectuate a term of the dissolution judgment”).   “Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged ․ Thus, if the ․ motion can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation.”  (Internal quotation marks omitted.)  Fewtrell v. Fewtrell, supra, at 532;  see Santoro v. Santoro, 70 Conn.App. 212, 217, 797 A.2d 529 (2002) (“[i]f a party's motion ‘can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, [the] court must favor that interpretation’ ”);  Jacobs v. Jacobs, Superior Court, judicial district of Hartford, Docket No. FA 95 0710220 (October 9, 2012, Olear, J.) (54 Conn. L. Rptr. 785, 786) (“[b]y filing a motion to effectuate judgment, the plaintiff cannot attempt to modify the property division as set forth in the judgment”).

“It is ․ within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [the] [original] judgment.”   (Internal quotation marks omitted.)  Santoro v. Santoro, supra, 70 Conn.App. at 217.  “The purpose of a property division pursuant to a dissolution proceeding is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution.”  Smith v. Smith, 249 Conn. 265, 275 (1999).  “[T]he trial court has the authority, short of modifying the property distribution, to take steps to protect the integrity of the financial orders in the face of changed circumstances.  Bruno v. Bruno, 146 Conn.App. 214, 76 A.3d 725 (2013), citing Clement v. Clement, 34 Conn.App. 641, 645–46, 643 A.2d 874 (1994) (authority to protect integrity of equitable distribution permitted court to order plaintiff to compensate defendant for the value of family residence lost to foreclosure as result of plaintiff's failure to pay mortgage).

Discussion

In analyzing the facts presented, the court finds that the defendant's allegations and his testimony lack credibility.   Contrary to his claim that the plaintiff's action hampered the sale of the marital home, the credible testimony of both the plaintiff and Balestrino contradict his allegations regarding the plaintiff's part in marketing the marital home for sale.   Rather, it was the defendant's conduct that played a large role in hindering the process.   For example, it was the defendant who agreed to attend the walk-through at first, changed his mind and then proposed that his secretary stand as his substitute and go in his place.   It was the defendant who ultimately decided not to participate in the walk-through.   It was the defendant who did not respond to all 6 of the offers tendered and failed to reply to Balestrino within 24 hours.   It was the defendant who was seeking to reduce any potential exposure he may have had resulting from the tank remediation efforts as long as the plaintiff assumed the possible risks together with him.⁵  The defendant's actions and inactions had consequences and those consequences impacted the potential sale of the marital home.   What also contributed to the debacle concerning the efforts to sell the marital home is that the term “as-is” appears to have been overlooked by everyone involved.   After the walk-through, the plaintiffs agreed with the walk-through agent that repairs should be made even though neither court order requires, expressly or implicitly, the defendant to perform any repairs to make the marital home more marketable.   So, basically, there was no legitimate reason for the plaintiff to broach this topic with the defendant in connection with the court orders pertaining to the sale of the marital home.   The fact that the agent sent all offers, including those requiring the defendant to perform the remediation, to the defendant and the parties' attorneys, is of no moment because the agent was responsible for doing so under the court order.   However, the assumption of remediation was not up for consideration by the defendant, regardless of his hesitancy in taking on this obligation, because the court order requires the marital home to be sold “as-is.”   Now, despite two court orders, the marital home languishes as the last remaining vestige of the equitable distribution of the former marital estate.

Turning back to the defendant's motion, and applying our case law to the defendant's claims and the relevant and credible evidence presented, the court concludes that the defendant failed to sustain his burden of proof.   Further, the court concludes that an examination of the defendant's requests for relief in said motion shows that no forms of relief can be reasonably construed as a request to effectuate the existing orders regarding the sale of the marital home.   Instead, the only fair conclusion the court can reach is that the defendant is seeking to have control over the marital home and compensation the plaintiff for her interest in said home.   In analyzing this matter, the court further concludes that it lacks the requisite jurisdiction to issue the type of post-dissolution relief the defendant is seeking.   This is because the defendant is basically asking for a modification that benefits his own self-interest and not to effectuate a sale to comply with the order entered at the time of the dissolution judgment.   Our case law interprets the word “sale” in the context of an equitable distribution of the marital estate in a dissolution action to mean the sale should be consummated with a third party and that neither the plaintiff nor the defendant should acquire the interest of the other in contravention of the court's distribution order.

For the foregoing reasons, the court denies the defendant's motion (# 379, # 380) and all relief requested therein.   However, with the protection of the integrity of the original equitable distribution order in mind, and to put an end to this protracted matter, the court is hereby exercising its discretionary power to issue the following additional orders.

Orders

1. The former marital home shall be sold “as-is,” in its present physical condition inclusive of, but not limited to, the presence of the tank, with an initial selling price of $1,550,000 (“initial price”).⁶  Neither party shall undertake any repairs to or demolish the marital home strictly for the purpose of maximizing its sale potential.   No later than one (1) calendar month from the date of this decision, a listing contract shall be executed and a copy shall be forwarded to the plaintiff, defendant and their respective attorneys.   All offers shall be communicated to the plaintiff, the defendant and their respective attorneys in writing.   Each such offer shall be replied to by the plaintiff, defendant and their respective attorneys as the needs may dictate, as determined by counsel.   Each party and, as the case may be, their attorney's reply on their behalf their client, shall be in writing, directed to the listing agent (or as otherwise directed by the listing agent or the listing contact) and said reply said be dispatched within the timeframe designed by the listing agent (or as otherwise directed by the listing contract).   The listing agent shall be selected upon the mutual agreement of the parties.   If the parties fail to reach such an agreement, then each party shall identify a listing agent of his or her own choosing and those two listing agents, who have been selected by the plaintiff and defendant, shall decide upon a third listing agent and such third listing agent shall be deemed to be listing agent chosen by the parties for the marketing of the marital home.   The initial listing price of $1,550,000 shall be reduced by three percent (3%) each month until the marital home is sold.

2. In the event the listing agreement expires prior to the marital home being sold, then the marital home shall be sold by auction.   The parties shall follow the identical process outlined in the preceding section 1 in order to sell the marital home using an auction company.

3. Except as otherwise provided herein, the original order and the current order remain unchanged.

By the Court

SYBIL V. RICHARDS, J.

FOOTNOTES

FN1. This pleading was corrected by motion # 380..  FN1. This pleading was corrected by motion # 380.

FN2. The defendant is the sole owner of the marital home..  FN2. The defendant is the sole owner of the marital home.

FN3. The parties' method of communication is limited to only electronic exchanges..  FN3. The parties' method of communication is limited to only electronic exchanges.

FN4. None of the offers received by Coldwell is in an amount equivalent to or greater than 95% of the $1,550,000 listing price..  FN4. None of the offers received by Coldwell is in an amount equivalent to or greater than 95% of the $1,550,000 listing price.

FN5. The plaintiff rejected this request..  FN5. The plaintiff rejected this request.

FN6. The court finds the evidence before the court is insufficient with respect to determining the current value of the marital home particularly as the 3 offers the defendant responded to contained varying contingencies such as a counteroffer from the defendant asking the prospective purchaser to cause the removal of the tank or offers requiring the defendant to do so when the current order expressly provides that the marital home shall be sold “as-is.”.  FN6. The court finds the evidence before the court is insufficient with respect to determining the current value of the marital home particularly as the 3 offers the defendant responded to contained varying contingencies such as a counteroffer from the defendant asking the prospective purchaser to cause the removal of the tank or offers requiring the defendant to do so when the current order expressly provides that the marital home shall be sold “as-is.”

Richards, Sybil V., J.