Summary
disagreeing with defendant's argument "that a release of the mortgage releases the underlying debt"
Summary of this case from In re Canal Asphalt, Inc.Opinion
No. FA89-0090247S
March 1, 2006
MEMORANDUM OF DECISION
The issue presented to the court is by the plaintiff's postjudgment motion (#113), dated August 13, 2005, claiming that the defendant is in contempt of his February 28, 1990 court-ordered obligation to pay the plaintiff the sum of $37,500 and also to pay counsel fees to the plaintiff in the amount of $1,750.
The marriage of the parties was dissolved on February 28, 1990, and among other things, the court (Harrigan, J.) entered the following orders: (1) the defendant husband shall give the plaintiff wife a mortgage, in the amount of $37,500, for those premises known as 67 Columbia Boulevard, Waterbury, Connecticut, without interest, payable on or before March 1, 1992. The order further provided that if said mortgage was not paid by said date, the interest would be payable at the statutory rate, plus the usual cost of collection, etc., and (2) the defendant husband shall pay the plaintiff wife's attorney, Arnold M. Potash, counsel fees in the amount of $1,750 on or before June 1, 1990.
A number of events occurred subsequent to the date of dissolution. The plaintiff filed a motion for contempt (#107, dated May 13, 1990), alleging that the defendant had failed to comply with the same provisions of the judgment that are contained in motion #113, namely that the defendant did not provide the plaintiff with a mortgage for 67 Columbia Boulevard and that he did not pay the attorneys fees. That motion was marked "off by agreement" on June 18, 1990. It should be noted that on June 4, 1990, the defendant did execute a note obligating himself to pay to the plaintiff the sun of $37,500 on or before March 1, 1992, providing further that in the event payment was not timely made, the debt would accrue interest at the then statutory rate. The defendant also signed and recorded the mortgage deed securing his obligation under the note with property he owned at 67 Columbia Boulevard in Waterbury. Also, the defendant filed a motion to modify the financial orders entered at the time of dissolution (#109, dated June 4, 1990) alleging a reduction in his income. That motion was marked "off" on July 2, 1990.
The defendant then filed a motion to reopen and modify the judgment (#110, dated December 6, 1991) alleging that he had become the primary custodial parent for the children and requesting that the order that he pay alimony and support be terminated. In response to that motion, a stipulation was submitted to the court on December 23, 1991, which provided that the children would reside with the defendant with visitation to the plaintiff. The parties further agreed that the issues of contempt, custody and visitation would be continued to "May 1992." On March 16, 1992, the plaintiff executed a release of the mortgage deed for 67 Columbia Boulevard. The defendant utilized the services of his attorney in preparing said note, mortgage deed and release of mortgage. The plaintiff did not utilize the services of her attorney when she signed the release of mortgage, but rather signed said release at the defendant's office at the defendant's request. It does not appear that any further court action was pursued on that motion or on any other matter until motion #113 was filed with the court.
On August 31, 2005, the plaintiff filed motion #113, a motion for contempt, alleging that the defendant had not complied with the court order to pay the plaintiff $37,500 by March 1, 1992, and that the defendant had not paid the plaintiff's counsel fees in the amount of $1,750 on or before June 1, 1990. On December 1, 2005, oral argument was held on the matter. The plaintiff now claims that the sums due by virtue of the judgment are as follows: 1) $37,500 together with statutory interest accruing at the rate of $312.00 per month, and 2) counsel fees of $1,750 together with statutory interest accruing at the rate of $14.50 per month.
In his post-hearing brief concerning the plaintiff's motion for contempt (dated December 28, 2005), the defendant argues that the plaintiff's motion for contempt is barred on the grounds that: (1) the parties entered into an oral agreement wherein the defendant agreed not to seek child support from the plaintiff if she agreed to give up her rights to the aforesaid monetary orders; (2) the plaintiff released the defendant from his obligations by signing the release of mortgage; (3) the doctrines of equitable estoppel and laches both preclude the plaintiff from obtaining relief as a result of her thirteen-year delay in seeking enforcement of the court orders; and (4) the defendant did not willfully violate a court order that could support a finding of contempt.
In her reply memorandum, the plaintiff maintains that: (1) the parties cannot modify property orders issued by the court; (2) the defendant cannot waive child support as that is a benefit of the children; (3) the release of mortgage was not a release of the indebtedness but rather only a release of the security; (4) that the release of mortgage and the plaintiff's failure to enforce the orders of the court before this time were a result of threats of the defendant to leave the jurisdiction with the children and to deprive the plaintiff of her right to see them; and (5) the reason she is now pursuing her rights is that the youngest child is now of majority age and the defendant can no longer leave the jurisdiction with the children.
The defendant argues that the release of mortgage executed by the plaintiff released his obligation under the February 28, 1990 court order. "The court's judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment . . . General Statutes § 46b-86(a) provides in relevant part: Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court . . . This section shall not apply to [property] assignments under section 46b-81 . . . The statute, therefore, 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." (Citation omitted; internal quotation marks omitted.) Santoro v. Santoro, 70 Conn.App. 212, 216, 797 A.2d 592 (2002). The court lacks authority under § 46b-81 to issue postjudgment orders regarding the parties' property division. Rathblott v. Rathblott, 79 Conn.App. 812, 817, 832 A.2d 90 (2003).
The obligations of the defendant, pursuant to the orders of the court, have never been released or modified. The orders entered at the time of the dissolution of marriage that are the subject of this motion were property orders and, as such, they are not subject to modification. The defendant was well aware of the need to seek a modification when circumstances required a change in the court orders, as evidenced by his motion #110 and his appearance before the court on December 23, 1991, seeking a change in the custody orders and a termination of his support obligation. In fact, the defendant admitted to insisting that the 1991 change of custody be done before the court.
The defendant further claims that he waived the support of the children in exchange for the plaintiff's waiver of her rights pursuant to the dissolution judgment. "The parents of a child cannot waive the child's independent right to child support." Rhone v. Geraldi, Superior Court, judicial district of Waterbury, Docket No. FA 80 0053033 (Dranginis, J., May 17, 1995). See Burke v. Burke, 137 Conn. 74, 75 A.2d 42 (1950); Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985). "A husband and wife cannot make a contract with each other regarding the maintenance or custody of their child which the court is compelled to enforce." Guille v. Guille, 196 Conn. 260, 264, 492 A.2d 175 (1985).
Child support was ordered for the benefit of the three children of the parties. The financial orders that are the subject of this motion were made for the benefit of the plaintiff. Even if the court were able to find that the defendant had a right to waive child support in exchange for a release of his obligation to the plaintiff (which it is not under the unique circumstances of this case), it is virtually impossible for the court to determine what that support obligation would have been over the past thirteen years. Consequently, the court finds this claim of the defendant to be unsupported in the law or by the evidence and testimony presented.
Next, the defendant argues that the release of mortgage released the underlying debt. "[A] note and a mortgage given to secure the note are separate instruments executed for different purposes . . ." Federal Deposit Insurance Corp. v. Owen, 88 Conn.App. 806, 811, 873 A.2d 1003 (2005).
The defendant offers no support for his proposition that a release of the mortgage releases the underlying debt and there is not sufficient evidence that the plaintiff released her rights to the court's order. The release executed by the plaintiff merely released the security interest in the 67 Columbia Boulevard property. The release of mortgage was recorded without the defendant paying the underlying indebtedness. The defendant admits that he never paid any part of the note or the attorneys fees ordered by the court as part of the dissolution agreement. He offers no excuse to the non-payment of the attorney fee order, but claims that the plaintiff released her rights to the $37,500 order by virtue of the fact she signed the release of mortgage. The release of the mortgage released the effect of the lien on the 67 Columbus Boulevard property; it did not release the underlying obligation. Consequently, the court finds that the underlying indebtedness was not satisfied by the execution of the release of mortgage document.
Next, the defendant argues that the plaintiff's claim is barred by laches. "The burden is on the party alleging laches to establish that defense." Burrier v. Burrier, 59 Conn.App. 593, 596, 758 A.2d 373 (2000). "Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." Sablosky v. Sablosky, 72 Conn.App. 408, 413, 805 A.2d 745 (2002) "The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question." Burrier v. Burrier, 59 Conn.App. 593, 596, 758 A.2d 373 (2000).
The plaintiff's thirteen-year delay in filing this notion was not an inexcusable delay. Her failure to enforce the orders of the court was a direct result of defendant's threats, namely, that he would leave the jurisdiction with the children and deprive the plaintiff of her right to see them if she enforced the order. Consequently, she waited until her youngest son was eighteen years old to seek enforcement of the court order. Said threats by the defendant were admitted by him and were taken seriously by the plaintiff. The plaintiff has had multiple surgeries over the past several years and has had psychiatric issues, which she has been hospitalized for on numerous occasions. The defendant also physically assaulted the plaintiff's subsequent husband (since deceased) putting him in the hospital with multiple injuries, something the defendant seems to take some degree of pride in. Given all the facts presented, it is clear that the parties were not on a "level playing field" and that the course of events from the date of judgment were largely dictated by the intimidation of the plaintiff by the defendant.
Further, the delay did not prejudice the defendant. As stated above, the defendant was aware of the proper procedure to terminate an obligation. Although the statutory interest accrued to the defendant's detriment, the defendant was aware of the statutory interest provision and he was well aware of the need to seek a modification when circumstances required a change in the court orders, as evidenced by his motion #110 seeking a change in the custody orders and a termination of his support obligation. The court is also mindful of the fact that the plaintiff exercised questionable diligence in pursuing the rights that were granted to her by the court's judgment. Although this does not excuse the obligations of the defendant, this fact creates an equitable concern over the defendant now being obligated to pay the plaintiff over double the original amount awarded. The court is also aware of the circumstances presented by the defendant's financial affidavit and has duly considered those facts as well into the following orders.
The defendant further argues that the doctrine of equitable estoppel precludes the plaintiff from obtaining relief as a result of her delay of thirteen years in seeking enforcement of the court orders. "Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Sablosky v. Sablosky, 72 Conn.App. 408, 414, 805 A.2d 745 (2002).
Neither party has presented credible evidence indicating that the plaintiff did or said anything to induce the defendant to believe that the judgment was fulfilled. On the contrary, the plaintiff testified that she was induced by the defendant to sign the release of mortgage based on her belief that if she did not sign the release, that the defendant would remove the children from the state. The plaintiff further testified that she did not show the release of mortgage to a lawyer and that she did not know what she was signing. Based on these facts, there is no credible evidence that the plaintiff induced the defendant to believe that they had reached an agreement to terminate the court-ordered obligations of the defendant.
Finally, it is virtually impossible for the court to determine what the personal and financial circumstances of the parties was for the past thirteen years. Neither party asked the court to modify the orders entered nor did either of them formalize any agreement in writing. The parties differ in their understanding of the events leading to the presentation of this motion and, since it is the defendant who is seeking relief from the clear orders of the court, his claim for relief must fail.
The court has considered the credibility of the parties, their respective testimony and evidence and the statutory and case law relevant to the issues before this court, and in consideration thereof hereby enters the following orders:
1. The defendant shall make an earnest effort to refinance his property located at 67 Columbia Boulevard in Waterbury, or otherwise borrow such funds as are necessary to pay the principle amount of $37,500 to the plaintiff within 30 days from the date of this order. The parties are ordered to appear before this court on Monday, March 27, 2006 to report on the status of this payment.
2. The interest accruing on said obligation (found to be $53,028 as of March 1, 2006) shall be paid to the plaintiff at the rate of $100 per week until said obligation has been paid in full.
3. The defendant shall pay to the plaintiff the court-ordered attorneys fees in the amount of $1,750 within 60 days of the date of this order. If said payment is not made within 60 days, the defendant shall pay interest on the unpaid amount at the statutory rate until said amount is paid in full.
4. The court does not make a finding of contempt at this time, but will defer that finding to the continuance date of March 27, 2006.