Tanya Zappola v. Dominick Zappola (2014)

Memorandum of Decision

This postjudgment matter is before the court on the plaintiff's motion for contempt.   The matter was initially heard by Judge Schofield.   When she became unavailable to complete the hearing, counsel agreed that another judge could complete the hearing after review of the transcripts and exhibits.   The court has also had available to it the FTR recording system to sample the witnesses' recorded testimony who appeared before the prior judge.

Based upon the evidence, the court makes the following findings of fact and process.

The parties were divorced in New York after a contested hearing in which both parties participated.   The New York judgment was domesticated here in Connecticut.   Therefore it is treated in the same manner as a judgment in Connecticut.  Gen.Stat. § 46b–71.   In the New York judgment the court entered a money judgment in favor of Tanya Zappola against Dominick Zappola, Jr. for $352,500.00 and $27,041.00 which latter sum is comprised of an award of legal fees.   That therefore is treated as a judgment here.

Along with the instant contempt motion, on June 30, 2010, the plaintiff filed an Application for Charging Order.   The plaintiff seeks a charging order pursuant to Gen.Stat. § 34–171 for the unpaid orders of the New York divorce judgment against the interests of defendant in Camola, LLC. On April 27, 2011 pursuant to an agreement of the parties, the court found that the judgment remains unsatisfied and agreed that a charging order should issue as requested by the plaintiff against the defendant's interest in Camola, LLC. As a part of the agreement regarding the charging order, the defendant agreed to turn over to the plaintiff the monthly bank statements and copies of the cancelled checks of Camola, LLC.

After the present motion for contempt (# 103) was filed, on September 30, 2009 the defendant moved to dismiss claiming the court lacked jurisdiction over him.   He is a New York resident who was served in hand in Connecticut.   On September 8, 2012, the court (Kenefick, J.) held a hearing on the motion to dismiss and determined that the Connecticut court has personal jurisdiction over the defendant.

On September 25, 2013, the defendant filed a renewed motion to dismiss before this court.   After considering the same, the court deems it to be a re-hash of the motion and facts that were before Judge Kenefick in 2010.   The court finds that the defendant has sufficient minimum contacts to satisfy notions of due process.   Accordingly, this motion is DENIED.

The defendant also asserts that these proceedings should be held in U.S. Bankruptcy Court because the plaintiff has filed for Chapter 7 protection in Florida, where she lives.   Because the judgment is an asset of the debtor estate, defendant argues that the matter should be pursued in bankruptcy court.   The plaintiff's counsel represented that he has the authority of the Bankruptcy Trustee to pursue this matter in Connecticut.   To that end, he filed a pleading (# 128) entitled, “Filing Bankruptcy Orders” on October 26, 2012.   In the pleading it states, “Attached is copy of Order of Bankruptcy Court authorizing employment of the undersigned, Robert K. Walsh, to represent the Plaintiff in the above entitled case.”   Apparently inadvertently, he did not attach the Order of Bankruptcy Court.   In accepting the representations of Attorney Walsh as commissioner of the superior court that such authority has been granted, the court notes that the defendant has not offered any evidence to the contrary.   Therefore, the defendant's seeking of a dismissal or stay of these proceedings in favor of adverse proceedings in Bankruptcy Court is denied.

In the contempt motion, the plaintiff seeks a finding of contempt for the failure of the defendant to satisfy the judgment amounts stated above, in whole or in part.   She seeks an attachment of any property interests of the defendant in Connecticut to satisfy the judgment of New York, including the charging order that issued on April 27, 2011.  (Other claims regarding certain time shares that are averred in the motion are not before this court as a result of prior proceedings between the parties and the representations of their counsel).

The defendant is a member of Camola, LLC which is a property management company in New Haven, Connecticut.   While it previously owned three properties, it currently owns and manages two rental properties which collectively have 18 apartment units;  one property is located at 728–732 Quinnipiac Avenue and the other at 315–317 Winthrop Avenue.   Camola, LLC also owns a minivan.   The City of New Haven has filed a foreclosure action regarding one or both of these real properties.   The defendant believes that an arrangement regarding the back taxes will be worked out with the City.

The defendant collects the rent, maintains the checkbook and performs the maintenance of the Camola, LLC properties.   The checkbook discloses that since the issuance of the charging order, from April 27, 2011 through December 14, 2012, the defendant took $4,050 in checks from Camola, LLC made out to him personally.   During that same time Camola paid legal fees for the defendant in this family matter in the amount of $2,000 (plus $1,000 before the charging order) and legal fees for a criminal charge he had arising out of a dispute with two tenants in the amount of $1,150.

The defendant owns a 2010 Harley Davidson Softtail model motorcycle valued by him at $14,000.   He claimed that this really is a vehicle of Camola, LLC but it was in his personal name because he could not put it in the LLC name when it had a loan on it.   Camola, LLC has paid all of the maintenance on the motorcycle.   The payments made by Camola for the motorcycle care during the period from the beginning of the charging order to the end of 2012 was $8,022 (rounded).   The court finds that the motorcycle is the property of the defendant individually.

The defendant has had two motorcycle accidents since the date of the New York judgment, one in Tennessee and one in Ontario.   In both instances he was injured and collected personal injury settlements of undisclosed amounts.   He turned none of that money over to the plaintiff to satisfy the New York judgment.

The defendant has made no payments toward the discharge of the New York judgment.   He lives at a property in New York State owned by his parents, having lived there since 2007.

In Motion for Order (# 119) dated April 4, 2011, the defendant seeks an order of this court declaring the validity a pre-nuptial agreement entered into between the parties in Connecticut.   The court denies this request.   The parties have a New York divorce judgment which remains valid and has been domesticated here.   There is no case or controversy pending before this court which requires the court to declare the rights of the parties under that pre-nuptial agreement.   Any that may have existed at some point in time have been mooted by the New York judgment.   If there is any vitality to a claim regarding the pre-nuptial agreement, it must be brought in New York. Motion for Order (# 119) is DENIED.

The court finds that the defendant has had funds with which to pay down on the judgment owed to the plaintiff and has failed to do so.   The court finds the defendant in contempt of court.   The court finds that Camola, LLC has failed to redirect all of the funds paid to the defendant or on his behalf to Brothers Harley Davidson and to his attorneys as required by the charging order on April 27, 2011.

Further, the court finds that the defendant knew and understood the court order at all relevant times and chose to wilfully disregard it and not comply with its terms.   He remains convinced that he should not have to pay the New York judgment.   In his testimony the defendant has stated that the plaintiff will never receive “a dime” of the money ordered.   Indeed, he stated that he could become another Timothy McVeigh and also that he would burn down the Camola, LLC buildings rather than the plaintiff receiving funds from the buildings owned by the LLC. The court finds that the defendant's noncompliance with the terms of the judgment is willful.

The defendant is found in contempt of court.   The charging order issued previously is continued.¹  It shall be served on Camola, LLC by the plaintiff with return of service to the court.   The plaintiff claims attorney fees, costs and interest.   Given the willful nature of the defendant's contemptuous behavior the court orders interest at the rate of 5% per annum on that portion of the judgment that remains unpaid from October 28, 2009 (the date this contempt matter was before the Connecticut court) until payment in full.   The court will permit the plaintiff's counsel to file an affidavit of fees and costs and submit them for a subsequent hearing on the third Wednesday after the filing of this decision, to be heard at 9:30 that date.   Other relief sought by the plaintiff is an order transferring or attaching the defendant's ownership interest in Camola, LLC to the plaintiff toward satisfaction of the judgment.   The plaintiff has not provided the court with any legal authority for either action and therefore has a final opportunity to do so at the above-mentioned hearing.   Finally, the plaintiff seeks incarceration of the defendant.   Incarceration on a contempt matter is a coercive remedy and not a punitive act.   The plaintiff has not laid a proper foundation for the former and the court will not order it for the latter reason.   Therefore, this relief request is denied.

Munro, J.

FOOTNOTES

FN1. Because of the defendant's failure to honor the charging order, the plaintiff should consider whether or not to pursue the matter through a request for a receiver to be appointed to run the affairs of the LLC. Based upon the testimony of the defendant, the court further finds that he solely identifies himself personally as the LLC and vice versa.   This sense of the LLC being his alter ego can be explored in appropriate proceedings and is not precluded by the instant action..  FN1. Because of the defendant's failure to honor the charging order, the plaintiff should consider whether or not to pursue the matter through a request for a receiver to be appointed to run the affairs of the LLC. Based upon the testimony of the defendant, the court further finds that he solely identifies himself personally as the LLC and vice versa.   This sense of the LLC being his alter ego can be explored in appropriate proceedings and is not precluded by the instant action.

Munro, Lynda B., J.