Opinion
(3470)
The plaintiff, who had been awarded, as part of the judgment dissolving her marriage to the defendant, 60 percent of the parties' jointly owned residence, moved to modify that portion of the award concerning the sale of the property when the parties' minor child attained the age of eighteen. Because, by statute ( 46b-81), the Superior Court does not have continuing jurisdiction over that portion of a dissolution judgment which assigns property of one party to another, held that the trial court did not err in denying the motion.
Argued June 17, 1985
Decision released August 6, 1985
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Nigro, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court denied the plaintiff's motion to modify the judgment, and the plaintiff appealed to this court. No error.
Peter H. Culhane filed a brief for the appellant (plaintiff).
Harold E. Stuart, for the appellee (defendant).
A decree of dissolution was rendered by the trial court on October 3, 1980, and, on December 11, 1980, a supplemental judgment was filed concerning custody, visitation, alimony, child support and the division of the parties' respective assets.
The judgment of December 11, 1980, provides that the plaintiff has the right to occupy jointly owned real property located at 276 Park Street in New Canaan, with the parties' minor child until the minor child attains age eighteen, or residential custody of the minor child is transferred to the defendant, or the death or remarriage of the plaintiff or her cohabitation with another person under circumstances which would warrant the modification of periodic alimony pursuant to the provisions of General Statutes 46b-86, or the plaintiff elects to vacate the premises.
On May 24, 1984, the plaintiff filed a motion to open and modify the supplemental judgment insofar as the sale of the property was concerned, requesting an additional year so that the child, who became eighteen in May, 1984, could finish high school. This motion was denied without opinion although the parties agree that the court stated it did not have the power to modify the judgment. The sole issue on this appeal is whether the court had continuing jurisdiction to modify a judgment providing for the assignment of property under General Statutes 46b-81.
The motion claimed that "[t]he minor child of the parties will be eighteen at the end of May, 1984 which in accordance with the supplemental judgment of December 11, 1980 would require the property at Park Street in New Canaan, Connecticut to be sold, but the child at that time will have only finished his junior year in school. With the sale of the premises, the child will be unable to finish school in New Canaan. He will be uprooted from his peers and friends which would work an injustice on the child and as such, the plaintiff asks that the sale be postponed until the minor child has graduated from high school."
General Statutes 46b-86 (a) provides: "Unless and to the extent that the decree precludes modification any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. This section shall not apply to assignments under 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law." As stated in Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980): "This provision confers on the court continuing jurisdiction, except where precluded by the decree, to modify orders for the periodic payment of permanent or pendente lite alimony or support upon a showing of a substantial change in the circumstances of either party. See Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976). By its terms, the statute deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes 46b-81." See also Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983).
The supplemental judgment provides that upon the sale of the property "the proceeds remaining after the payment of expenses and costs resulting from the sale, shall be distributed 60 percent to the plaintiff and 40 percent to the defendant." Thus, the judgment, in effect, assigned 10 percent of the defendant's interest in the property to the plaintiff under the authority of 46b-81 and is therefore nonmodifiable. See Bunche, v. Bunche, supra.
We note that the plaintiff was found in contempt on July 23, 1984, for failure to list the property for sale and that no appeal was taken from that finding which is still in effect. It would appear that this appeal was taken solely for the purpose of delay and it has accomplished that purpose.
The court's handwritten decision on the motion for contempt provides: "The foregoing [contempt] motion having been heard, it is hereby GRANTED. The plaintiff and Defendant are to comply forthwith [with] the court order of 12/11/80 no later than 8/4/84 re sale of property.
"The plaintiff is to make the house available for inspection by the defendant and his broker on July 28 or 29, 1984.
"If the plaintiff's broker and the defendant's broker can't agree on a price a 3rd broker is to be nominated to set the price."
In view of the fact that the plaintiff was and still is in contempt, the court would have been justified in dismissing the appeal sua sponte. Greenwood v. Greenwood, 191 Conn. 309, 313-14, 464 A.2d 771 (1983).