Opinion
FSTFA124024258S
11-18-2016
Eileen Sullivan-Zannini v. John Zannini
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR CONTEMPT, POSTJUDGMENT
Donna Nelson Heller, J.
On July 25, 2016, the plaintiff Eileen Sullivan-Zannini moved by order to show cause to have the defendant John Zannini held in contempt for his failure to satisfy certain of his obligations pursuant to the judgment of dissolution entered on February 26, 2014 (#124.00; #124.01). The defendant was served by certified mail, return receipt requested, on August 2, 2016 (#125.00). He was also served in hand on August 11, 2016 (#126.00).
The court held an evidentiary hearing on the plaintiff's motion for contempt, postjudgment, on October 11, 2016. The plaintiff appeared and was represented by counsel. The defendant did not appear at the hearing. The court found that the defendant had notice of date, time, and place of the hearing, and the hearing proceeded in the defendant's absence. The court heard the testimony of the plaintiff, reviewed the exhibits that were admitted into evidence, took judicial notice of the contents of the court file, and considered the arguments of the plaintiff's counsel. For the reasons set forth below, the plaintiff's motion for contempt, postjudgment (#124.01) is granted.
I
The plaintiff and the defendant were divorced on February 26, 2014. They are the parents of three children, two of whom are adults. Their daughter Annabella Zannini, born on December 10, 1999, has not reached the age of majority. Their adult children are Zachery Zannini, born on August 26, 1992, and Sophia Zannini, born on August 26, 1994.
The judgment of dissolution incorporated by reference the parties' separation agreement, also dated February 26, 2014 (the February 2014 separation agreement) (#119.00). The plaintiff contends that the defendant has not paid certain expenses and has otherwise failed to meet certain obligations under the February 26, 2014 separation agreement, as follows:
Annabella's extracurricular activities : Article 6.4 of the February 2014 separation agreement provides in pertinent part that " [t]he parties shall equally pay for extra-curricular activities for the minor child, with mutual consent of both parties. Said consent shall not be unreasonably withheld. The party who paid in advance shall submit the bills to the other party and shall be reimbursed within one week of receipt of the bill."
The plaintiff paid a total of $7, 475.76 for Annabella's extracurricular expenses. She submitted the bills to the defendant for reimbursement of one-half of the amount. The defendant has not reimbursed the plaintiff in accordance with Article 6.4 of the February 2014 separation agreement.
Medical insurance and unreimbursed medical and dental expenses: Article 7.1 of the February 2014 separation agreement provides in pertinent part that " [t]he parties shall continue to provide medical insurance for the benefit of the children for as long as they are eligible or until they attain the age of 26 four until they attain separate coverage. The parties will share equally the costs of any medical and dental insurance and unreimbursed medical and dental expenses, including co-pays for the children."
The plaintiff paid a total of $5, 606.96 for the children's medical insurance and unreimbursed medical and dental expenses. She submitted the bills to the defendant for reimbursement of one-half of the amount. The defendant has not reimbursed the plaintiff in accordance with Article 7.1 of the February 2014 separation agreement.
Taxes, homeowners' insurance, and cost of repairs for 42 Valley Road, New Canaan, Connecticut (the Valley Road property): The Valley Road property was the parties' marital residence prior to the dissolution. Article 3.1a of the February 2014 separation agreement provides in pertinent part that " [t]he Husband and Wife are joint owners with right of survivorship of the real property located at 42 Valley Road, New Canaan, CT. As of the date of the judgment, the parties shall equally split the monthly cost of the mortgage, and taxes on the said real property . . . The Wife shall pay the first $200 of any repair, and thereafter the parties shall share equally in the cost of all necessary repairs to the property for purposes of its sale or listing, including capital repairs and necessary work to ready the property for sale, which repairs shall be mutually agreed upon in advance and in writing."
The plaintiff paid a total of $83, 106.12 for the mortgage and taxes and $20, 867.58 for repairs, less the initial $200, for the Valley Road property prior to its sale. She submitted the bills to the defendant for reimbursement of one-half of the amount. The defendant has not reimbursed the plaintiff in accordance with Article 3.1a of the February 2014 separation agreement.
On August 19, 2016, the Valley Road property was sold. The net sale proceeds of $193, 632.04, plus any accrued interest, are currently held in escrow by Lampert, Toohey & Rucci, LLC, as trustees. Pursuant to Article 3.1b of the February 2014 separation agreement, the net sale proceeds are to be divided equally between the parties, subject to subsection (e), which provides that " [i]n the event one party owes the other party money paid on their behalf for mutually agreed to repairs, or any other shared obligation associated with the Marital Residence the party owing the money shall pay the other party from their share of the sale proceeds."
The parties agreed in Article 3.1d of the February 2014 separation agreement that the court " shall retain jurisdiction regarding any issues pertaining to the sale of the New Canaan property."
Taxes and homeowners' insurance for 10 Tar Barrel Road (a/k/a Deer Meadow Road), Martha's Vineyard, Massachusetts (the Tar Barrel Road property) : Article 3.2 of the February 2014 separation agreement provides in pertinent part that " [w]ithin 5 days of the dissolution, the husband shall quitclaim one-half of his share of this property to the Wife. The parties shall then satisfy the mortgage on this property . . . and full title to the property [shall] be immediately transferred, assigned and/or passed to the Wife. The parties shall equally share the cost of the taxes and insurance on this property until it is transferred to the Wife." The plaintiff paid a total of $2, 783.93 for taxes and $2, 594.00 for homeowners' insurance on the 10 Tar Barrel Road property prior to the defendant's transfer of full title to her. She submitted the bills to the defendant for reimbursement of one-half of the amount. The defendant has not reimbursed the plaintiff in accordance with Article 3.2 of the February 2014 separation agreement.
The Fiat: Article 4.2a of the February 2014 separation agreement provides in pertinent part that " title to the Fiat . . . will be transferred to the Wife within 5 days of the dissolution. The defendant has not transferred title to the Fiat to the plaintiff in accordance with Article 4.2a of the February 2014 separation agreement, despite her requests that he do so.
II
" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Citation omitted; internal quotation marks omitted.) Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992). " 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 . . . Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). At the time of entry of the dissolution judgment, the court (Novack, J.T.R.) found the February 2014 separation agreement to be fair and equitable and incorporated it by reference into the February 26, 2014 dissolution judgment. This court further finds that the defendant had notice of the provisions of the 2014 separation agreement and that such provisions are clear and unambiguous.
If a court order is found to be sufficiently clear and unambiguous, the court must then determine whether a violation of the court order was wilful or excused by a good faith dispute or misunderstanding. See Eldridge v. Eldridge, 244 Conn. 523, 526-27, 710 A.2d 757 (1998). Indirect civil contempt, as is alleged here, must be proven by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015). The court credits the plaintiff's testimony. The court finds by clear and convincing evidence that the plaintiff notified the defendant of the expenses that she had paid on his behalf and asked him to reimburse her in accordance with the terms of the February 2014 separation agreement, and that the defendant failed to respond to her telephone calls and emails. The court further finds by clear and convincing evidence that the plaintiff asked the defendant many times to transfer the title to the Fiat to her, as provided in Article 4.2a of the February 2014 separation agreement, but he did not do so.
The court finds that the defendant's violations of the February 2014 separation agreement were wilful. They are not excused by a good faith dispute or misunderstanding. The plaintiff testified credibly that the defendant ignored her telephone calls and emails; she said that " he just went underground." The court finds the defendant in contempt because he has wilfully failed to comply with Articles 3.1a, 3.2, 4.2a, 6.4, and 7.1 of the February 2014 separation agreement.
" In a civil contempt proceeding, judicial sanctions are generally either compensatory or coercive . . . Nonetheless, a compensatory fine must be based upon evidence of complainant's actual loss . . . [I]t is well settled . . . that [a] court may, in a proceeding for civil contempt, impose [a] remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damages he may have sustained by reason of the contumacious conduct of the offender . . . [S]uch a compensatory fine must necessarily be limited to the actual damages suffered by the injured party as a result of the violation of [a court order]." (Citations omitted; internal quotation marks omitted.) Allen v. Allen, 134 Conn.App. 486, 500-01, 39 A.3d 1190 (2012). In view of the defendant's failure to reimburse the plaintiff for his share of the expenses itemized above, the court finds that such a compensatory fine is appropriate here. Accordingly, the defendant shall pay $66, 562.74 to the plaintiff, representing the total of the amounts paid by the plaintiff on his behalf, together with attorneys fees and costs, as discussed below.
The plaintiff asks that the defendant be ordered to pay the compensatory fine and attorneys fees from his equitable distribution share of the net proceeds from the sale of the Valley Road property, currently held in escrow. Article 3.1b of the February 2014 separation agreement expressly provides that if one party is obligated to reimburse the other party for his or her share of payments made for repairs or other shared obligations relating to the Valley Road property, " the party owing the money shall pay the other party from their share of the sale proceeds." While Article 3.1b is not directly applicable to the plaintiff's other claims for reimbursement of expenses that she paid on the defendant's behalf, such as for Annabella's extracurricular activities or the children's unreimbursed medical or dental expenses, the court may nonetheless assess the compensatory fine and attorneys fees against the defendant's equitable distribution share of the net sale proceeds. See Allen v. Allen, supra, 134 Conn.App. at 500-01; See Shaulson v. Shaulson, 125 Conn.App. 734, 736, 9 A.3d 782 (2010), cert. denied, 300 Conn. 912, 13 A.3d 1102 (2011).
III
General Statutes § 46b-87 provides in pertinent part that " [w]hen any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt . . ." General Statutes § 46b-87. " Once a contempt has been found, § 46b-87 establishes a trial court's power to sanction a noncomplying party through the award of attorneys fees . . . Pursuant to § 46b-87, that sanction may be imposed without balancing the parties' respective financial abilities." Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (Conn. 1997).
Counsel for the plaintiff requested an award of attorneys fees and costs for the preparation and prosecution of the plaintiff's motion for contempt, postjudgment. On October 11, 2016, the plaintiff's attorney submitted an affidavit of counsel fees which reflected attorneys fees in the amount of $4, 000.00, billed at an hourly rate of $400 per hour, and costs in the amount of $297.62 incurred from July 15, 2016 to October 6, 2016. The plaintiff's attorney also represented to the court that her additional fees for the hearing were $1, 980.00, which she requested be included in the attorneys fees award. The court finds that the attorneys fees and costs sought on behalf of the plaintiff, in the total amount of $6, 277.62, are reasonable.
The February 2014 separation agreement also contains a provision for the award of attorneys fees and costs to the prevailing party. Article 8.2 provides in pertinent part that " [i]n the event that it shall be determined by a court of competent jurisdiction that either party shall have breached any of the provisions of this agreement or of any court decree incorporated by reference otherwise this agreement or portions thereof, the offending party shall pay to the other party reasonable attorneys fees, court costs, and other expenses incurred in the enforcement of the provisions of this agreement and/or judgment or decree incorporating any or all the provisions hereof."
An award of reasonable attorneys fees and costs pursuant to General Statutes § 46b-87 and the February 2014 separation agreement is appropriate here. The court awards attorneys fees and costs to the plaintiff in the amount of $6, 277.62. This award of attorneys fees shall also be paid from the defendant's share of the escrowed proceeds from the sale of the Valley Road property.
IV
The court has fully considered the applicable statutes, the relevant case law, the evidence, the demeanor and the credibility of the plaintiff, the argument of her counsel, and the court records judicially noticed, in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.
It is hereby ORDERED as follows:
1. The plaintiff's motion for contempt, postjudgment (#124.01) is GRANTED.
2. The plaintiff is awarded $66, 562.74 as a compensatory fine assessed against the defendant to compensate the plaintiff for the damages that she incurred by reason of the defendant's violation of the terms of the February 2014 separation agreement, incorporated by reference in the dissolution judgment.
3. The plaintiff is awarded attorneys fees and costs in the amount of $6, 277.62.
4. The compensatory fine in the amount of $66, 562.74 and the attorneys fees and costs in the amount of $6, 277.62 shall be paid to the plaintiff from the defendant's equitable distribution share of the funds currently held in escrow from the sale of the Valley Road property.
5. On or before November 30, 2016, the escrowed funds shall be distributed to the parties as follows: $169, 656.38 to the plaintiff (which shall include the compensatory fine and the attorneys fees and costs set forth above) and $23, 975.66 to the defendant. Any funds remaining shall be divided equally between the parties.