Opinion
No. FA 98 0165911 S
December 30, 2004
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO EFFECTUATE ORDERS — POST-JUDGMENT DATED JUNE 8, 2004 (#502.00)
After hearing the court makes the following findings of fact and legal conclusions:
After a lengthy trial at the Regional Family Trial Docket the court (Frazzini, J.) issued a 42-page Memorandum of Decision on April 23, 2003. The defendant has appealed and the appeal is still pending before the Appellate Court. Judge Frazzini, as the trial court, issued five other trial decisions; July 24, 2003, March 25, 2004, April 7, 2004, April 13, 2004 and April 14, 2004. The plaintiff was given the option of retaining the marital home at 67 Mayo Avenue, Greenwich, Connecticut. On August 20, 2003, the plaintiff exercised that option by selecting the "First Alternative" set forth in the July 24, 2003 Memorandum of Decision: "Plaintiff may subtract the gross, pre-tax amount of the value of the assets, as set forth in defendant's November 2002 financial affidavit, from that portion of the equity in the marital home that she must transfer to the defendant pursuant to the court's orders."
Because of the pending appeal, the plaintiff moved to terminate the stay of execution. The trial court (Frazzini, J.) held two days of hearing on the Motion to Terminate the Stay and made two findings: (1) the foreclosure action pending against the marital home has now gone to judgment with a sale date scheduled for June 2004 and (2) it is in the children's best interest to preserve the home for the children. The trial court then terminated the stay as to the marital home in its April 7, 2004 Memorandum of Decision.
In the original Memorandum of Decision dated April 23, 2003 the trial court allocated the equity of the marital home two-thirds to the plaintiff and one-third to the defendant and found that "Defendant's one-third share, before any adjustments, is $554,000." This instant Motion to Effectuate Orders, Post-Judgment intends to put into effect the "First Alternative" and the plaintiff is seeking an order of the court: (1) Transferring the title to 67 Mayo Avenue, Greenwich, Connecticut to her free of any claims the defendant has on said home, (2) Determining the adjustments that are due the plaintiff from the $554,000 amount and (3) Requiring the plaintiff to pay to the defendant the balance due from the $554,000 after adjustments.
The defendant objects arguing: (1) the plaintiff's motion is seeking a post-judgment modification of property distribution, which is not permitted by Connecticut law, (2) the plaintiff's motion cannot be granted due to the appellate stay in effect, (3) the adjustments proposed by the plaintiff do not take into consideration the tax effect of said distribution, and (4) the results of the appeal may change the property distribution. The plaintiff counters by stating: (1) the motion does not seek a modification of property distribution; it intends to effectuate the existing court orders, (2) the stay has been terminated and (3) the court has continuing jurisdiction to further adjust the property division to reflect the tax impact as well as any orders after the appeal is concluded.
Connecticut courts have repeatedly recognized both explicitly and implicitly that an order for the sale of property in a dissolution judgment is a nonmodifiable assignment. Lucisano v. Lucisano, 200 Conn. 202, 206, fn 4 (1986). This court has no jurisdiction to modify a property disposition order. "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Roberts v. Roberts, 32 Conn.App. 465, 470 (1993). "Thus, if the plaintiff's motion for order can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation." Id. 470.
A modification is [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. Santoro v. Santoro, 70 Conn.App. 212, 217, (2002). If a party's motion can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation. Similarly, when determining whether the new order is a modification, we examine the practical effect of the ruling on the original order. Roos v. Roos, 84 Conn.App. 415, 422-23 (2004).
It is within the equitable powers of the trial court to fashion whatever orders are required to protect the integrity of the original judgment. Connecticut Pharmaceutical Association, Inc. v. Milano, 191 Conn. 555, 563-64 (1983). "The purpose of a property division pursuant to a dissolution proceeding is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of the dissolution." Smith v. Smith. 249 Conn. 265, 275 (1999). "A dissolution of marriage is an equitable proceeding and (that) the division of the marital estate is to be done equitably." Falkenstein v. Falkenstein, 84 Conn.App. 495, 504 (2004).
The following cases are instructive as to whether the relief requested is a modification of property division or an effectuation of the original judgment. Clement v. Clement, 34 Conn.App. 641, 646 (1994) (Non payment of mortgage by husband, causing wife to lose house, undermined integrity of court's judgment; therefore, court properly ordered husband to pay wife value of loss.) Roberts v. Roberts, 32 Conn.App. 465 (1993). (Order to auction property effectuated original judgment despite fact that original judgment did not call for sale at auction.) Falkenstein v. Falkenstein, 84 Conn.App. 495 (2004). (Order to sell marital house at a set price not modified by post-judgment motion preventing either party from purchasing the house at that set price "46b-81 grants the court discretion to render such an order to carry the dissolution decree into effect . . ." Id. 496); Roos v. Roos, 84 Conn.App. 415 (2004). (Order that each party will hereafter not incur debt did not prevent court from finding one party in contempt for debt incurred after judgment and ordering the payment of that debt. The court held that the contempt orders are not modifications but orders effectuating the original judgment.) Bunche v. Bunche, 180 Conn. 285, 289 (1980). (Original order giving plaintiff the option to buy the marital home by paying 40% of the fair market value less the outstanding mortgage, was held to have been improperly modified by post-judgment order providing for a specific purchase price in installment payments.) Roos and Roberts involves judgments based on separation agreements incorporated into the dissolution judgment.
"No automatic stay shall apply . . . to orders of periodic alimony, support, custody or visitation in domestic relation matters brought pursuant to chapter 25 or to any later modification of such orders." P.B. § 61-11(b). The trial court applied the criteria for terminating a stay as set forth in P.B. § 61-11(c) and acted "because of the best interests of the minor children and in order to preserve the full value of the parties' most significant asset, the marital home." April 7, 2004 Memorandum of Decision on Motion To Terminate Stay, page 2. "Lifting the stay on orders regarding equitable distribution of the marital home would permit the plaintiff to maintain the marital home." Id. 7 The trial court in reaching this conclusion determined that "the defendant's appeal in this action faces an uphill battle." Id. 7. Further discussing the effect of this order terminating the stay on the defendant's appeal, the court stated: "The order terminating the stay here has ordered the plaintiff to preserve enough equity in the premises to protect the one-half interest in equity in the marital home that the defendant sought at trial in his claims for relief, plus any additional amounts that may be credited to him because of the court's orders regarding preservation of the equity." Id. 7.
Applying these principles of law as well as the findings and conclusions of Judge Frazzini, the trial judge, to the facts of this case, this court finds: (1) the essence of the April 23, 2003 judgment was the preservation of the marital home for the children, (2) the pending foreclosure, caused by the defendant's failure to keep the mortgage current, could destroy that essence, (3) in the event the defendant's appeal is successful the marital home will still be owned by the plaintiff and will be subject to future orders of distribution, (4) any adjustments in the court orders by reason of the tax effects of the distribution the plaintiff seeks or upon the successful conclusion of the defendant's appeal can be readily made since the largest asset of the family, the marital home, is being preserved, (5) the orders set forth in this Memorandum of Decision are necessary to preserve the marital home for the children, and (6) the orders set forth in this Memorandum of Decision are necessary to effectuate the orders of the trial court (Frazzini, J.) and are not modifications of property distribution. The court grants the Plaintiff's Motion To Effectuate Orders Post-Judgment dated June 8, 2004 and ORDERS that:
(1) The defendant shall immediately execute a quit claim deed to the plaintiff of all his right, title and interest in and to 67 Mayo Avenue, Greenwich, Connecticut:
(2) Upon receipt of said quit claim deed the plaintiff shall pay to the defendant the sum of $554,000 representing the one-third of the equity in the marital home found by the trial judge subject to the following adjustments in favor of the plaintiff; (a) $362,011 representing one-half of the stocks, options and deferred compensation set forth in the defendant's November 4, 2002 financial affidavit, (b) $5,976.49 attorney fees incurred by plaintiff to defend the pending foreclosure on the marital home, (c) $59,000 in unallocated alimony and child support as per the June 9, 2004 Memorandum of Decision, on the Motion For Contempt, issued by the undersigned, and (d) $40,554.50 as per paragraph (b)(2) on page 38 of the trial court's April 23, 2003 Memorandum of Decision. These four adjustments total $467,541.99. The remaining balance due the defendant from his $554,000 one-third equity interest in the marital home after these four adjustments is $86,458.01.
(3) The plaintiff is claiming that the defendant owes or may owe the plaintiff additional sums including unpaid unallocated alimony and child support. The defendant has filed and argued a Motion for Modification dated July 2, 2003 addressed to that situation claiming that he is no longer employed. That Modification motion has been decided of even date herewith. This court has previously found the arrears through May 31, 2004 to be $59,000 and has already ordered those arrears to be paid by adjustment (2)(c) in this Memorandum of Decision. No further payments appear to have been made and the arrears accruing at $11,000 per month may exceed the remaining $86,458.01. The plaintiff has filed a Motion For Security, Post-Judgment dated June 8, 2004 and has requested similar relief in paragraph 23 of this instant motion. The court orders that the plaintiff pay the sum of $86,458.01 to Fitzmaurice Siegel and the Law Office of Gary I. Cohen as escrow agents for the defendant, David Wasson, to be paid in accordance with an order issued by this court of even date herewith on motion #523.00.
BY THE COURT
KEVIN TIERNEY JUDGE OF THE SUPERIOR COURT