Opinion
LLIFA155007830
02-01-2017
David J. Killiany v. Darlene F. Bouchard
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S POSTJUDGMENT MOTION FOR CONTEMPT (#162); PLAINTIFF'S POSTJUDGMENT MOTION FOR CONTEMPT (#164); PLAINTIFF'S POSTJUDGMENT MOTION FOR ORDER (#165)
Kari A. Dooley, Judge.
Preliminary Statement
The parties were divorced by judgment of the court on September 9, 2016. The dissolution judgment incorporated the terms of the parties' Separation Agreement of the same date. The Separation Agreement contained various provisions regarding the distribution of the parties' personal property as well as provisions regarding the marital residence, the details of which will be discussed infra . By motion dated October 20, 2016, the defendant claims that the plaintiff is in contempt of certain provisions of the dissolution judgment. By motion dated October 27, 2016, the plaintiff claims that the defendant is in contempt of certain provisions of the dissolution judgment. By motion dated October 28, 2016 the plaintiff asks this court to order the defendant to compensate him for significant and intentional damage done to the marital residence by the defendant in advance of her vacating the home. A hearing on all of these motions was held on November 29, 2016. The court heard from multiple witnesses and received multiple documents and photographs into evidence. The court has reviewed all of the evidence submitted, the testimony of the witnesses, the applicable statutory and appellate court authority and renders the following decision based thereupon.
The court does not attempt to include in this decision all of the evidence relied upon in the court's factual findings. The court has considered all of the evidence admitted and the reference to any subset of the evidence presented should not be construed as identifying the exclusive basis for the court's finding. Nor should the court's failure to identify or mention specific evidence give rise to an inference that such evidence has not been considered.
The court makes the following factual findings by clear and convincing evidence. During the pendency of the dissolution action, the parties engaged in protracted and oft times contentious negotiations regarding the financial and property issues attendant to the divorce. There was consensus at the hearing that the issues related to the personal property located within the marital home were a substantial part of the negotiated settlement. As a result, the Separation Agreement set forth in detail the items to which the defendant was entitled and the items to which the plaintiff was entitled. The Separation Agreement provides in pertinent part:
Personal Property . The Wife shall leave the following personal property in the marital home:
a. A bear print of a mother bear and two cubs
b. A stuffed white albino squirrel that was in the living room
c. Any lumber remaining in the home.
In addition, the Wife shall retain her clothing, personalty, and personal property. The Husband will receive the remainder of the contents of the home, including the remaining furniture, furnishings, major appliances, and the Husband's tools. There will be no adjustments or reductions in the amounts due the Wife and no claims for monetary compensation by the Husband from the Wife with respect to the house contents.
Although this provision of the Separation Agreement prohibits monetary claims related to the personal property, the defendant did not argue that this provision either barred the plaintiff's motion or was license to damage the property inside the marital residence.
While the matter was pending and at the time of the dissolution judgment, the defendant had exclusive possession of the marital residence in which the vast majority of the items awarded to the plaintiff were located.
The provision regarding the marital residence pertinent to the pending motions reads as follows.
13. Real Property . The Wife shall quit claim the real property located at 426 Platt Hill Road, Winchester, CT 06098 to the Husband, in exchange for the sum of Thirty-Eight Thousand ($38, 000.00) Dollars. Husband shall indemnify and hold the Wife harmless on the mortgage and all liens with respect to the property. The Husband shall be responsible for all liabilities on the property with the following exception: The Wife shall be responsible for the utilities she was ordered to pay, including any that currently have balances due from the date of the court order through the date she vacates the premises. The Wife shall vacate the premises on or before October 15, 2016. The Quit Claim Deed and the funds shall be exchanged on or before October 15, 2016, but no later than the date she vacates the premises. The Wife shall purchase 600 gallons of fuel oil for the residence when she vacates.
Approximately three weeks prior to the entry of Judgment, on August 18, 2016, the plaintiff, accompanied by his lawyer, inspected the marital property and its contents. He took multiple photographs of the interior of the home. Neither the plaintiff, nor his counsel, Attorney Robert Salerno, observed any damage or disrepair to the home or its contents. The home appeared well kept and clean.
At that time, the matter was scheduled for a trial on September 9, 2016. As indicated, the parties reached an agreement and proceeded with an " uncontested" hearing in lieu of trial on that date.
On the morning of October 16, 2016, the defendant vacated the marital residence. Prior to doing so, she purchased 500 gallons of fuel oil for the tank, which already held 125 gallons. On October 16, 2016, the plaintiff arrived at the marital residence with his ex-wife from a previous marriage, with whom he enjoys a close friendship. It was immediately apparent that significant and substantial damage had been purposefully done to many of the items of personal property contained in the marital residence. In addition, the home was littered with mice droppings and generally filthy.
As a result, the plaintiff, believing the defendant responsible for the damage, withheld a portion of the $38, 000.00 owed to the defendant under the Separation Agreement. Those funds are presently held in escrow by counsel.
The instant motions were filed shortly thereafter. The defendant seeks a finding of contempt for the plaintiff's failure to pay the full $38, 000.00 upon her tender of the quitclaim deed. She seeks an order directing the plaintiff to pay the remaining portion of the debt as well as costs and attorneys fees. Plaintiff's motion for contempt seeks an order that the defendant purchase an addition 100 gallons of fuel oil, reimburse him for utility bills which he paid but were her responsibility, and an award of costs and attorneys fees. Plaintiff's motion for order seeks recompense for the damage done to the marital home and the property inside.
At the conclusion of the hearing, the court denied the plaintiff's motion for contempt with respect to the oil. The court found the agreement to be ambiguous as to this particular obligation and the defendant had already agreed to furnish an additional 100 gallons, which the court ordered be done within 30 days of the hearing date.
Based upon the better and more credible evidence, the court finds that the defendant is responsible for the damage done as well as the filth and disarray left behind when she vacated the premises. She admitted to a few of the acts of destruction or damage, but denied the vast majority. Her testimony was not credible. The damage, as described and/or photographed, includes the following:
The bear print was defaced by the defendant, which she admits. She wrote several statements across the print, crossed out a portion of the image and replaced it with the phrase " Dave sucks."
The wiring to the alarm system was cut.
The defendant left behind two handwritten notes, which she admitted. The first reads " Dave Killer[, ] God Bless your next victim[.] I'll pray for her[.] God knows what you did you sociopath narssist (sic) liar Fake Phony Fuck[.] Enjoy your life[.] wish you well[.]" The court credits the plaintiff's testimony that this note was found beneath couch cushions adjacent to a torn or cut and otherwise damaged fabric portion of the couch. The plaintiff testified, again credibly, that the couch did not have this damage on August 18, 2016. The second note was located on top of a box spring, beneath a cut and urine soaked mattress. It read " Dave Killer[, ] Sleep Well[.] God knows what you did you sociopath narsisst (sic) liar Fake Phony Fuck[.] Wish you well"
The defendant's testimony that she left both notes in a box full of pictures was not credible.
The glass top range and oven, which was pristine on August 18, 2016, had numerous scratches to the surface, was not operational and appeared to have had some foreign substance, plastic or the like, baked onto the racks and the floor of the oven.
The refrigerator, which was also very clean on August 18, 2016, had rancid food inside, as well as what appeared to be mice feces. Although the plaintiff testified that it was not working properly, no explanation or reason was provided, and the evidence is inadequate for this court to find that the defendant's determination to leave the refrigerator in a fairly disgusting state, rendered the refrigerator unusable once properly cleaned.
The wastebasket had a big dent. Two screens had been cut. A wooden carved Indian head was defaced with the words " Dave's Killer stuff indian giver." Similarly, a kitchen pan was scratched with the words " Fuck Face Dave" and what appears to be the word " liar."
The bricks which surround the outdoor fire pit, which were clean and clear of damage or debris on August 18, 2016, appeared to have melted plastic or some other damaging substance on the majority of the bricks.
The plaintiff's standalone freezer had been thawed to the point where the meat inside was rancid and maggot infested. The freezer had then been turned back on and the rancid meat, maggots and all, were refrozen.
The plaintiff had an area of the home referred to as his workshop. Therein, he found food on the shelves and mice feces. The court finds that the defendant is also responsible for the extensive presence of mice feces in the home. Although she claimed to have set traps for the mice and denied any responsibility for the presence of feces, she posted on the internet a picture of a mouse drinking out of a water bowl on September 29, 2016. She included the caption " My little friend Mickie is thirsty." The workshop also contained many photographs which had been taken down and torn and/or cut into pieces. The outdoor grill, which was fine on August 18, 2016, was damaged beyond repair.
The plaintiff claimed damage to a leather chair which the court finds not proven. The plaintiff claims wrongdoing on the part of the plaintiff to the extent she left piles of miscellaneous items which had to be taken to the dump at his cost. However, the defendant was to remove whatever of her own personalty as she wanted and the plaintiff was to receive the remainder of the contents of the home. That she left behind items that he did not want either is of no significance with respect to the pending motions. In addition, the plaintiff claims that certain items are missing. These claims are barred under the express terms of the Separation Agreement. Indeed, the plaintiff was canvassed on this precise issue at the time of the dissolution. In any event, the evidence is insufficient for this court to infer that the defendant took the items claimed to be missing.
The fireplace, its damper control and its heating unit were also damaged. The heating unit pipes were melted, the hearth had significant scorching and the heating unit had to be discarded. The court notes that the difference between the scorching on the hearth on August 18, 2016 and October 16, 2016 is not significant, but it is visible. It is unclear however how the pipes came to be melted or whether regular and frequent use would result in wear and tear on the unit with the same result. The fireplace, with the unit in place, was observed on August 18, 2016 but the workings of the unit were not inspected on that date. The evidence does not support the inference or the conclusion that the defendant intentionally damaged the heating unit of the fireplace. Additional factual findings will be made as necessary.
Plaintiff's Motion for Contempt
Contempt is a disobedience to the rules and orders of a court which has the power to punish for such an offense. Wilson v. Cohen, 222 Conn. 591, 596 n.5., 610 A.2d 1177 (1992). Before a determination of civil contempt may be made, the movant must demonstrate that there exists a clear court order proscribing the conduct under scrutiny. Dowd v. Dowd, 96 Conn.App. 75, 79, 899 A.2d 76 (first inquiry on review of judgment of contempt for failure to abide by separation agreement was whether agreement was clear and unambiguous), cert. denied, 280 Conn. 907, 907 A.2d 89 (2006); McCarthy v. Custom Design Services, Inc., 126 Conn.App. 274, 280, 11 A.3d 1094 (2011) (Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts). However, " noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 787 A.2d 50 (2001). " 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, 661 A.2d 621 (1995). Willful contempt must be proven by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015).
Judicial sanctions in civil contempt proceedings may be used to coerce the defendant into compliance with the court's order, to compensate the complainant for losses resulting from the contempt or both. DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278, 471 A.2d 638 (1984). Even in the absence of a finding of contempt, the court has broad discretion to make whole any party who has sustained a loss as a result of another party's failure to comply with the court's orders. Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988).
Plaintiff seeks a finding of contempt with respect to the utilities which the defendant was ordered to pay. The court heard conflicting testimony and was presented with conflicting records as to the payment of utilities by the defendant. With respect to the trash collection, it appears to the court that the invoice submitted as " unpaid" as of October 1, 2016, is an invoice for the six-month period beginning on October 1, 2016. Therefore, the defendant would only be responsible for 1/12th of the amount sought because she vacated the premises on October 16, 2016. It is unclear whether the defendant ever received or had knowledge of the trash hauling invoice. Therefore, no willful violation of the court's order is proven. However, by way of remedial order, the defendant is ordered to pay $13.00 to the plaintiff as her portion of this bill.
With respect to Frontier and Eversource, the records reflect that both the plaintiff and the defendant paid the outstanding invoices around the same time. Either the plaintiff now has a credit with these providers, or the records are irreconcilable. In any event, the court cannot conclude by clear and convincing evidence that the defendant is in contempt of these obligations.
The final utility invoice claimed is for Direct TV. The plaintiff offered evidence that the defendant failed to pay the February 2016 invoice, in the amount of $174.23. The evidence is insufficient however for this court to conclude that such failure was a willful violation of the court's orders. By way of remedial order the court directs the defendant to pay this amount to the plaintiff. No costs or attorneys fees are awarded.
Defendant's Motion for Contempt
The defendant seeks an order of contempt for the plaintiff's failure to provide the entire $38, 000.00 upon her tender of the quit claim deed to the marital residence. The plaintiff acknowledged that he purposefully withheld $2, 482.27 of these funds notwithstanding the dissolution judgment. He testified that he felt justified in so doing in light of the damage to the property in the home. While this court discourages such self-help methods, it would be inequitable to issue a finding of contempt under the unique circumstances of this case. The defendant's motion is therefore denied. The plaintiff is ordered to pay the defendant the remainder of the funds due under the dissolution judgment. However, the funds are to be held in escrow by plaintiff's counsel and accessible to satisfy the defendant's obligations as set forth herein. No costs or attorneys fees are awarded.
Plaintiff's Motion for Order
Lastly, the plaintiff seeks compensation for the damage and destruction done to the marital residence and its contents. As discussed at oral argument, the plaintiff did not proceed by way of motion for contempt because the Separation Agreement did not clearly and unambiguously prohibit the defendant from doing what she did. However, such a prohibition is certainly implied.
" It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is to be regarded and construed as a contract." Hirschfeld v. Machinist, 151 Conn.App. 414, 418-19, 95 A.3d 1167 (2014). It is axiomatic that a duty of good faith and fair dealing is a covenant implied into this contract. See, Id. at 421, n.2. In other words, every contract carries an implied duty " requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted. Internal citations omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2004). See also 2 Restatement (Second), Contracts § 205 (1979) ([e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement); Landry v. Spitz, 102 Conn.App. 34, 42, 925 A.2d 334 (2007).
To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. Alexandru v. Strong, 81 Conn.App. 68, 80-81, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004), citing Gupta v. New Britain General Hospital, 239 Conn. 574, 598, 687 A.2d 111 (1996). Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose. (Citation omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., supra, 269 Conn. at 433. See also, Hirschfeld v. Machinist, 151 Conn.App. 414 n.2, 95 A.3d 1167 (2014) (On post-dissolution motion for order, doctrine of good faith and fair dealing was not applicable where the defendant did not allege bad faith.).
With these principles in mind, it is manifest that the defendant breached the covenant of good faith and fair dealing implied into the Separation Agreement and that she did so in bad faith and with an improper or sinister motive. By her actions she has impeded to a substantial degree the plaintiff's right to receive the benefits that he reasonably expected to receive under the contract.
This court has the authority to issue postjudgment orders designed to effectuate its judgment. Lawrence v. Cords, 165 Conn.App. 473, 483-84, 139 A.3d 778 (2016). " It is . . . within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment." Id. at 484. " [A]n order effectuating an existing judgment allows the court to protect the integrity of its original ruling by ensuring both parties' timely compliance therewith." Id.
The court enters the following Orders:
The defendant shall reimburse the plaintiff for the cost of a replacement stove/oven in an amount not to exceed $1, 769.85 payable within 15 days of her receipt of the paid invoice for same.
The defendant shall reimburse the plaintiff for the cost of a replacement outdoor grill, in an amount not to exceed $900.00, payable within 15 days of her receipt of the paid invoice for same.
The defendant shall reimburse the plaintiff for the cost of a professional cleaning/exterminating service at the marital residence in an amount not to exceed $500.00, payable within 15 days of her receipt of the paid invoice for same.
The defendant shall reimburse the plaintiff for the cost of fixing or replacing the two cut screens, in an amount not to exceed $180.00, payable within 15 days of her receipt of the paid invoice for same.
The defendant shall be responsible for these reimbursements even if they exceed the amount held in escrow. However, any funds which remain in escrow as of January 31, 2018, shall be turned over to the defendant.
The plaintiff may elect to proceed with some, none or all of the items for which he would be entitled to reimbursement under the court's order. His determination in this regard must be made within the next calendar year.
As noted above, the plaintiff did not meet his burden of proof with respect to the refrigerator and the freezer. And although it was clearly established that the defendant caused additional damage to various items of personal property, i.e. the kitchen trash can, the court is without evidence as to the cost or value of these items. Similarly, the court has no equitable remedy to address those items of sentimental value which were defaced or destroyed.
The freezer was working when he took possession of the home. It was filthy but functional. It is unclear why it couldn't be adequately cleaned. If the plaintiff chose or chooses to discard the freezer, that is not an expense which will be visited upon the defendant.
SO ORDERED.