Opinion
No. CV 04-4000982 S
June 15, 2007
MEMORANDUM OF DECISION ON MOTION TO ENFORCE SETTLEMENT AGREEMENT
On the eve of trial on this case, the parties reached a Settlement Agreement settling this case as well as related litigation Docket No. CV05-4002538 S. The detailed agreement is in eight pages, was accepted by the court and required the withdrawal of the above reference cases; which were in fact withdrawn. The underlying litigation, which included an Appeal from Probate Court, arose in connection with property in which the late Russell C. Zwingman and Carmen Zwingman had interests. The disputes primarily concern real property located at 9 Christian Hill Lane and 113 Christian Hill Lane in Higganum, Connecticut. The settlement called for the sale of such real property and a 50/50 division of the net proceeds of each sale subject to adjustments as set forth in the agreement.
The two properties have been sold and have realized net proceeds of $321,909.45. (This figure as of April 30, 2007. The parties have agreed to distribute any additional interest equally between the parties.)
At a hearing on the Motion, the defendants through counsel, initially challenged the validity of the agreement as it did not contain a court endorsement. This claim was abandoned by the defendants as they have not set forth such claim in writing though afforded an opportunity to do so within one week of the hearing date. The court finds that the agreement has in fact been accepted by the court as it was the basis of the withdrawal of this action and the other pending case.
The court, pursuant to the authority of Audubon Assoc. Ltd. Partnership v. Barclay Stubbs, Inc., 225 Conn. 804, 811 (1993), has the power to enter orders enforcing such settlement agreement. The agreement is clear enough that the court is able to enter enforcement orders.
The parties are in agreement as to adjustments that are to be made in accordance with the agreement, but dispute the manner in which the adjustments are to be applied to reach the payout figures.
The provision respected the distribution of the proceeds from the sales of the real property are set forth in paragraph 7 of the Settlement Agreement. The plaintiffs are entitled to an adjustment in their favor for repairs at both properties pursuant to subparagraphs 7(b) and (d) in the agreed upon amount of $5,031.89. The defendants are entitled to a credit in their favor in the amount of reimbursement for a home equity loan and other costs at 9 Christian Hill Lane pursuant to subparagraph 7(c) in the agreed upon amount of $40,460.00. There are also fees for the administration of the Estate of Carmen L. Zwingman, which are to be divided between the parties pursuant to subparagraph 7(e) in the amount of $10,000.00; and cost for the administration for the Estate of Carmen L. Zwingman, which is to be divided pursuant to paragraph 7(e) in the amount of $20,000. There is an adjustment pursuant to paragraph 13 of the agreement to the plaintiffs from the defendants in the amount of $7,958.00, for gift tax for which the defendants are responsible. There is an adjustment to the defendants for $650.00, which is one-half of the rental received on one of the properties. There is an adjustment to the plaintiff for 50% of the probate fees advanced by the plaintiff. This is a charge to the defendants in the amount of $634.33.
The plaintiffs proposed distribution is $30,000.00 for the attorney fees and cost for the administration of the estate and that the remaining $291,909.45 to be distributed, $231,504.21 to the plaintiffs, and $60,405.24 to the defendants.
Plaintiffs arrive at this distribution by subtracting from the $321,909.45 in escrow the $30,000.00 due for attorney fees and administration of the estate, plus the $5,031.89 due to plaintiffs pursuant to paragraphs 7(b) and (d), and the $40,460.00 payment to the defendants for pursuant to paragraph 7(c). The balance of $246,417.56 is divided in half the plaintiff then goes on to add to the plaintiff's half the $95,321.21 for the mortgage adjustment and subtract that same figure $95,321.21 from the defendants' half. This is an error which creates great disparity in the distribution proposed by the plaintiffs.
In order to accomplish the adjustment provided for in the settlement agreement, the $95,321.21 must be added back into the proceeds. This results in a net proceed figure of $341,738.77, divided equally, leaves plaintiff's and defendant's shares of $170,869.38, subtracting from the plaintiff's share the $95,321.21 leaves a balance of $75,548.17 due to defendants. Adding the $75,548.17 to the balance due the plaintiffs of $170,869.38, leaves the figure of $246,417.55, which was the balance after the adjustments for provisions 7(b), (c) and (d), and attorney and administration fees.
The further adjustments for gift taxes, advances of probate fees and rent are property adjusted by adding to one parties column and subtracting from the other parties column. The adjustments in favor of the plaintiff or in the amounts of $7,958.00 for gift tax reimbursed to the estate, and $634.33 for probate fees paid by Rita Lyman. The adjustment in favor of the defendants is for the $650.00 for rent due. The adjusted figures are thus due to the plaintiff $178,811.71, due to the defendants $162,927.05. The plaintiffs are also entitled to the $5,031.89 adjustment (7(b) and (d)) $178,811.71 and $5,031.89 = $183,843.60.
The defendants are entitled to an adjustment of $40,460.00 7(c) and negative $95,321.21 7(a), $162,927.05 and $40,460.00 = $203,387.05 — $95,321.21 = $108,065.84.
The payments from the $321,909.45 in escrow are to be as follows: To the plaintiffs, $183,843.61; to the defendants; $108,065.84; $10,000.00 for the attorney fees for the administration of the estate of Carmen L. Zwingman; and $20,000.00 for the administration of such estate.
The proceeds of the sale of the real estate at 9 Christian Hill Lane and 113 Christian Hill Lane, Higganum; are to be distributed in this fashion in accordance with the parties' agreement and by order of this court.