Opinion
FSTFA176033279S
08-06-2018
Ronita DAS v. Tamojit DAS
UNPUBLISHED OPINION
SOMMER, J.
I. INTRODUCTION AND FINDINGS OF FACTS
This action for dissolution of marriage was commenced by the service of a Writ, Summons, Complaint and Notice of Automatic Orders on the defendant on September 6, 2017.
At the time of service the parties were residing together at the marital residence at 486 Hope Street, Stamford, CT which they own. They also own two condominiums located in India.
On December 12, 2017, this matter was scheduled for a hearing before the court, on plaintiff’s motion (# 105.00). At that time the court approved a stipulation signed by the parties which stated:
The defendant shall vacate the marital residence at 486 Hope Street, no later than January 31, 2018.
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Commencing February 1, 2018, the defendant shall pay the plaintiff $2200 per month alimony pendent lite based upon their combined gross incomes of approximately $230,000.00. The plaintiff shall be responsible for costs of the marital residence commencing February 1, 2018 provided the defendant is current with his alimony obligation. The defendant shall be responsible for all the usual and customary expenses of the house through January 31, 2018 regardless of when received.
The parties did not file financial affidavits when they submitted the subject stipulation to the court for approval on December 12, 2017. In addition, the "costs of the marital residence" as referenced in the second full paragraph of the stipulation cited above, dated December 12, 2017, are neither defined nor enumerated in the stipulation and court order.
At the hearing before this court, the defendant husband testified that he left for India the evening of December 12, 2017, the same day that the parties entered the subject stipulation and the court entered orders based on their stipulation. He further testified that he did not tell the plaintiff wife that he was going to be leaving for India that night. The defendant also acknowledged that while he was in India, he arranged for an exterior lock to be placed on one of the two condominiums which the parties acquired during the marriage, without the prior knowledge, consent or permission of this court or the plaintiff. When questioned about his actions, the defendant testified without credibility that the reason he had locks placed on the doors was that he did not want the plaintiff’s sisters to enter the premises. He made this incredible claim although the plaintiff’s sisters had keys to the condominium for many years prior without any issues.
The plaintiff testified that after the defendant returned from India, she arranged to go to India to have the two condominiums acquired by the parties during the marriage appraised for purpose of this dissolution action. The plaintiff emailed the defendant on three occasions, January 16, 2018, January 17, 2018 and January 18, 2018, each time advising of her intention to travel to India and the purpose of her travel. In each email, she asked him to confirm that she would have access to the condominiums and that he had not changed the locks while he was in India. She specifically told him in her email dated January 18, 2018, that the purpose of her travel to India to have the condominiums appraised. The defendant claimed that he did not receive her emails because the defendant had blocked the plaintiff’s access to his email account without telling her. This action is either untrue or was deliberately done for the purpose of preventing any communication between the parties at a time immediately following the defendant’s actions installing the locks. Regardless of the defendant’s motives, the plaintiff travelled to India unaware that he had blocked her communication to him. The defendant’s claim that he was unaware that the plaintiff was travelling to India is also contradicted by the plaintiff’s uncontradicted testimony that she had independent knowledge that her counsel had also sent an email to the defendant’s counsel, asking for confirmation that she would have access to the condominium in India upon her arrival. The plaintiff testified that no response was received to this email either.
When the plaintiff arrived in India, she found that there were locks on both of the condominiums acquired during the marriage. As a result, she could not access either condominium. The plaintiff had anticipated staying in one of the condominiums during her trip to India as was her customary practice and utilizing her clothing and personal effects which she kept there. As a consequence of the defendant’s placing locks on the condominiums the plaintiff was unable to have either condominium appraised for purpose of this action. The Plaintiff spent $1,300.00 on the ticket to travel to India, to have both condominiums appraised.
When the plaintiff returned to the United States from India, on February 5, 2018, the defendant had vacated the marital residence at 486 Hope Street, Stamford, CT taking with him numerous items which had not been agreed by the parties. The plaintiff described with specificity the items which were missing and the conditions of the unit as the defendant left it. In addition to installing a lock on the closet in the marital bedroom, the defendant has prevented the plaintiff from accessing the security system at the marital residence. The security system has online access which the defendant acknowledged only he currently can access. The defendant’s testimony that only one person at a time can have online access to the account is not credible. He can notify the security company that the plaintiff is authorized to access the account and system. The court finds that the defendant’s actions leave the plaintiff vulnerable to third parties and his unauthorized entry to the premises. The defendant also dismantled the security system which has surveillance cameras. The defendant has refused to give the plaintiff the garage door opener. Thus he continues to have access to the property. Although the parties did not have an agreement as to division or removal of any personalty from the marital residence, the Defendant while the plaintiff was in India, the defendant not only vacated the martial residence, but removed the items which he selected, including perishable food items.
Plaintiff’s Motion for Contempt (120.00), dated March 8, 2018
The essence of this Motion for Contempt is that the defendant has concealed access to two (2) condominiums in India acquired during the marriage by placing locks on the exterior doors. The plaintiff alleges this is a violation of the Automatic Orders by "concealing" these properties and their content. The defendant acknowledged placing a lock on one (1) condominium in India during the pendency of this action and locking the master bedroom closet.
In Parrotta v. Parrotta, 119 Conn.App. 472 (2010), the Appellate Court stated: "the purpose of the Automatic Orders in marital dissolution cases is simply to maintain the status quo while the action is pending." Id. at 479. More recently, in O’Brien v. O’Brien, 326 Conn. 81 (2017), the Connecticut Supreme Court held that trial courts have inherent authority to make a party whole after the violation of the Automatic Orders. In this case, without a court order or with the plaintiff’s written consent, much less even her advance knowledge, the defendant unilaterally caused a lock to be placed on at least one of two condominiums in India, acquired by the parties in India, during the marriage. The plaintiff credibly testified that when she went to India in January 2018, there were locks on both condominiums precluding her access and ability to obtain her clothes and personal effects, or to have a place to stay. Only the defendant husband has keys to one of the two condominiums. The defendant’s deliberate, unauthorized actions, installing the locks precluded the plaintiff from having access to the condominiums for purpose of appraisals as well as lawful use of the property and her personal items. The appraisals, in particular, are necessary to a fair distribution of property and were the sole reason the plaintiff went to India and incurred the flight expense of $1,300.00.
The Case Management Agreement, which the parties signed, filed and executed in counterparts, pleadings, 125.00 and 126.00 has a deadline of May 30, 2018 for real property to be appraised. As a result of the defendant’s actions, the plaintiff was unable to have the two condominiums in India appraised by May 30, 2018.
"Conceal" is defined in Black’s Law Dictionary to mean: "to hide, secrete, or withhold from the knowledge of others. To keep from sight or prevent discovery of ..." See Black’s Law Dictionary, ed. The Court agrees with the plaintiff that placing a lock on the door of a condominium concealed the plaintiff’s access and takes the interior out of her and/or an appraiser’s sight and beyond either’s access. In effect, the defendant "hid" the marital property from the plaintiff. Rather than request relief from the Automatic Orders the defendant secretly traveled to India to arrange for locks to be placed on the properties which would effectively conceal the property from the plaintiff in December 2017.
Plaintiff’s Motion for Contempt (121.00)
In her Motion for Contempt the plaintiff asserts that the defendant removed personal property from the marital residence in violation of the Automatic Orders. The defendant acknowledged that he took the items on the list prepared by his attorney without the plaintiff’s consent or court order. Based on the defendant’s testimony he intends to keep these items of personal property for use in his new residence. The defendant did not testify that he removed the items temporarily during the case. By both his conduct and throughout his testimony, the defendant conveyed an attitude of entitlement to the property and disregard for the Automatic Orders.
Conn. Gen. Stat. § 46b-81 permits the division of property at the time the court enters a decree dissolving the marriage. By statute, property in Connecticut is not susceptible to being divided prior to the dissolution of the parties’ marriage, without the written consent of both parties. That did not happen in this case because the defendant prevented it without telling the plaintiff. The defendant’s unilateral actions in removing the personal property items on Exhibit 3, from the marital residence without a court order or the plaintiff’s consent are per se violations of the Automatic Orders. The defendant acted intentionally unlawfully locking the plaintiff out of marital property and removing items of personal property for himself prior to the judgment of divorce. The Automatic Orders are clear and unambiguous.
It is fundamental that in an action for dissolution, neither party can impede the other side’s access to joint property. The contents of the marital residence constitute joint property. Locking the master bedroom closet door contravenes the Plaintiff’s access to this space, conceals its contents and wrongfully deprives the Plaintiff of her property rights. Unquestionably, this action by the Defendant violates the Automatic Orders as well.
II. APPLICABLE LAW- CONTEMPT
In O’Brien, supra, 36 Conn. 81 (2017), the Supreme Court also noted that absent a finding of contempt, a remedial award does not require contempt. "Irrespective of whether a violation is willful, the party violating a Court Order may be responsible for the consequences of the violation. To hold otherwise would shift the cost of the violation to the innocent party."
Despite the Defendant’s arguments the Automatic Orders are clear and unambiguous. They apply in all cases and are intended to preserve the status quo and rights of the parties pending a final disposition of the case.
The court finds that the plaintiff has sustained her burden of proof by clear and convincing evidence that the defendant intentionally and willfully violated clear and unambiguous Automatic Orders in this case by the following actions:
1. Installing at least one lock on the condominium in India;
2. Removing personal property from the marital residence, including perishable food items;
3. Locking the master bedroom closet door in a house he agreed to vacate;
4. Refusing to give the garage door opener to the plaintiff;
5. Dismantling the security surveillance camera;
6. Refusing to disclose and authorize plaintiff’s access to the online code for the security system.
The defendant engaged in the above six (6) actions constitutes deliberate violation of the Automatic Orders.
Plaintiff’s Motion to Compel (122.00)
The relief sought by plaintiff in Motion # 122.00 is addressed in the court orders above.
Defendant’s Motion for Contempt (119.00)
The defendant alleges that the plaintiff’s failure to pay the Home Equity Line of Credit in paragraph 5 of his Motion for Contempt, dated March 7, 2018, violates the terms of the Stipulation of the parties and Order of the Court, of December 12, 2017. The defendant has failed to meet the burden of proof by the required standard of clear and convincing evidence that the plaintiff willfully failed to pay the Home Equity Line of Credit, in violation of a clear and unambiguous court order. Brody v. Brody, 136 Conn.App. 773 (2012). The December 12, 2017 stipulation does not define the "costs of the marital residence." In light of the ambiguity in the language of the Stipulation of the parties, dated December 12, 2017 during the hearing, the court noted that the record reflected that the parties disagree as to the meaning of "costs of the marital residence" in the Stipulation. In light of this ambiguity, as found by the Court during the hearing, the court permitted parol evidence to be offered to explain what the parties meant by "costs of the marital residence." The plaintiff testified that she understood from the meeting between the parties and their counsel, immediately prior to the approval by the Court of the stipulation that the "cost of the marital residence" included only, the mortgage, electric, garbage, water bill and oil bill. The plaintiff’s testimony was credible and uncontradicted that the Home Equity Line of Credit was executed as a personal expense of the defendant. The defendant confirmed the HELOC is his personal liability only. Both parties testified that the plaintiff signed a waiver at the time that the defendant secured the Home Equity Line of Credit, in 2007 or 2008, according to the Husband’s testimony. The defendant has been responsible for the payment of the Home Equity Line of Credit. The stipulation of December 12, 2017 did not reallocate the financial responsibility for this expense to the plaintiff. The plaintiff testified that she was unwilling to obtain the Home Equity Line of Credit for a separate real estate investment and agreed only upon the defendant’s representation to her that he would not ask her to make payments. The defendant did not contradict or refute the plaintiff’s testimony in this regard. Therefore, following the applicable principles of law, the court finds that the defendant has failed to meet his burden of proof that the Plaintiff is in contempt.
ORDERS
The court hereby orders the defendant to immediately, but no later than 5 days from the decision (1) Confirm removal of the subject locks from the condominium properties in India, (2) Provide the key to the master bedroom closet, the garage door opener and access by the Plaintiff to the security system, (4) pay the cost of reinstalling the security camera, (4) reimburse the Plaintiff the sum of $1,300.00 for airfare to India in December 2017.
The plaintiff seeks attorney fees from the defendant in connection with her two (2) motions for contempt. The court has reviewed the affidavit of fees which was filed with the court (# 131.00) itemizing time spent prosecuting the two motions for contempt filed by the Plaintiff including the hearing. The court finds that the fees are reasonable and orders the defendant to pay to the plaintiff attorney fees in the amount of $3,000.00 no later than August 31, 2018.