Opinion
FSTFA030195891S
06-19-2018
Lorraine KEOGH v. William KEOGH
UNPUBLISHED OPINION
OPINION
HELLER, J.
On October 5, 2017, the court (Heller, J.) issued a memorandum of decision (the October 2017 memorandum of decision) (# 245.00) with respect to the following postjudgment motions: the motion of the defendant William Keogh for modification of alimony and support orders, postjudgment (# 195.01); the motion of the plaintiff Lorraine Keogh for contempt, postjudgment, relating to the property distribution under the dissolution judgment (# 198.00); the plaintiff’s motion for counsel fees, postjudgment (# 199.00); the plaintiff’s motion to modify alimony, postjudgment (# 200.00); the plaintiff’s motion for contempt, postjudgment (# 210.00); and the defendant’s motion for attorneys fees, postjudgment (# 227.00). On October 16, 2017, the plaintiff filed a motion to clarify judgment, postjudgment (# 251.00) addressed to certain of the orders in the October 2017 memorandum of decision. The plaintiff filed a supplemental motion to clarify judgment, postjudgment (# 253.00) on October 18, 2017.
The parties and their counsel were before the court on December 15, 2017 for a status conference regarding the plaintiff’s motions for clarification, postjudgment, and further proceedings on the defendant’s motion for attorneys fees, postjudgment. Counsel reported at that time that the parties agreed or were close to an agreement on some of the requested clarifications, but certain issues remained to be determined by the court. On February 6, 2018, the plaintiff filed a third motion to clarify judgment, postjudgment (# 257.00), regarding distribution of the remaining balance of the defendant’s E*Trade brokerage account.
On February 7, 2018, the plaintiff filed an objection to the defendant’s claim for attorneys fees, postjudgment (# 258.00). The plaintiff filed a proposed clarification on February 13, 2018 and a revised proposed clarification on February 20, 2018 (# 259.00; # 260.00).
The parties and their counsel were before the court on February 21, 2018 for a hearing on the plaintiff’s motions for clarification, postjudgment, the defendant’s motion for attorneys fees, postjudgment, and the plaintiff’s objection thereto. The court heard testimony from Clifford Mollo, the plaintiff’s disclosed accounting expert, considered the parties’ stipulated clarifications of the October 2017 memorandum of decision and the arguments of counsel, and reserved decision on the remaining issues at that time.
I
The court will begin with the parties’ stipulated clarifications of the October 2017 memorandum of decision. Counsel represented to the court on February 21, 2018 that the parties agreed to the following:
1. "[T]he defendant shall pay to the plaintiff half of the funds that the defendant withdrew from his E*Trade brokerage account ... The total amount of the funds that the defendant withdrew from his E*Trade brokerage account was $239,685. The defendant shall pay one-half of this amount- $119,842.50- to the plaintiff.
The quoted text is from the October 2017 memorandum of decision.
2. "[T]he defendant shall pay to the plaintiff half of the funds that the defendant withdrew from ... his E*Trade IRA ..." The total amount of the funds that the defendant withdrew from his E*Trade IRA was $147,400. The defendant shall pay one-half of this amount- $73,700- to the plaintiff.
3. "[T]he defendant shall pay to the plaintiff half of the ... remaining balance in the E*Trade IRA ..." The total amount of the funds remaining in the E*Trade IRA as of February 20, 2018 was $54,741.13. The defendant shall pay one-half of this amount- $27,370.56- to the plaintiff
4. "[T]he defendant shall pay to the plaintiff half of the ... value of the SBC shares." The total amount of the funds from the sale of the SBC shares was $12,468. The defendant shall pay one-half of this amount- $6,234- to the plaintiff from the funds that are deposited in the E*Trade brokerage account.
5. The value of the E*Trade brokerage account as of February 20, 2018 was $7,209.67. After subtracting the $6,234 payment to the plaintiff for her share of the funds from the sale of the SBC shares, the balance remaining in the E*Trade brokerage account is $975.67. The defendant shall pay one-half of this amount- $487.84- to the plaintiff
In accordance with the parties’ stipulated clarifications, the total amount due from the defendant to the plaintiff is $227,634.90.
II
The court turns next to the issues that remain in dispute between the parties.
Alimony termination date : The plaintiff requests that the court clarify the date on which the defendant’s alimony obligation terminated. In the October 2017 memorandum of decision, the court ordered the plaintiff to "repay to the defendant in full the alimony that he paid to her from and after April 1, 2014, [the] date upon which his alimony obligation to her terminated pursuant to the dissolution judgment." The plaintiff asks that the October 2017 memorandum of decision be clarified to provide that the order for repayment shall be effective as of September 5, 2014, the date of the defendant’s motion for modification, postjudgment (# 195.01). The defendant maintains that April 1, 2014- the date in the October 2017 memorandum of decision- is the correct date.
In the October 2017 memorandum of decision, the court found the decision of our Supreme Court in Nation-Bailey v. Bailey, 316 Conn. 182, 193, 112 A.3d 144 (2015), to be directly controlling. The court determined that the defendant had established both prongs of the cohabitation standard under General Statutes § 46b-86(b). The court further found that the plaintiff had engaged in cohabitation as defined by § 46b-86(b) since April 1, 2014; therefore, the defendant’s alimony obligation to the plaintiff automatically terminated as of April 1, 2014, pursuant to the dissolution judgment.
The court’s prior ruling will stand. The plaintiff’s motions for clarification are denied to the extent that they seek to change the effective date of the order for repayment. The effective date of the plaintiff’s alimony repayment obligation is April 1, 2014.
Set-off and amounts to be paid : The plaintiff offered the expert testimony of Mr. Mollo in support of her position that she should pay the defendant, by way of a set-off against his payment obligation to her, the sum of $103,200, representing an amount equal to 80 percent of her total alimony repayment obligation, in order to adjust for the taxes that she paid on the alimony received from the defendant. While the defendant agrees that the plaintiff’s alimony repayment obligation of $129,000 may be set-off against his payment obligation of $227,634.90, as stipulated above, he does not agree that a payment of 80 percent will satisfy the plaintiff’s alimony repayment obligation to him. According to the defendant, Mr. Mollo’s analysis was based on flawed assumptions regarding the defendant’s projected future income. The court agrees.
The court declined to order a set-off in the October 2017 memorandum of decision. Counsel for the plaintiff has called the court’s attention to dicta in the decision of our Appellate Court in Tarbox v. Tarbox, 84 Conn.App. 403, 853 A.2d 614 (2004), which noted that the trial court set-off a child support arrearage against a property distribution. The court has determined to permit the set-off here in accordance with the agreement of the parties.
Therefore, the full amount of the plaintiff’s alimony repayment obligation to the defendant shall be set-off against the full amount of the defendant’s payment obligation to the plaintiff. Each party may address separately the impact of the alimony repayment on his or her personal tax situation, including the issue of whether to file amended returns for the tax years in question.
Defendant’s claim for attorneys fees: In the October 2017 memorandum of decision, the court found that the defendant was entitled under Practice Book § 13-25 to recover the attorneys fees and expenses that he incurred to prove the plaintiff’s cohabitation. As directed by the court, the defendant submitted a supplemental affidavit of attorneys fees on November 6, 2017 (# 254.00). The attorneys fees and expenses billed to the defendant by his counsel through June 30, 2017 totaled $78,215.49. Of that amount, the defendant attributes $37,004.32 in attorneys fees and expenses to proving the plaintiff’s cohabitation.
"Practice Book § 13-25 ... like its federal counterpart, Fed.R.Civ.P. 37(c)(2), is in essence a sanction." Krasowski v. Fantarella, 51 Conn.App. 186, 194-97, 720 A.2d 1123 (1998), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999). The plaintiff objects to the full amount of the attorneys fees sought by the defendant because some of the fees were incurred in a four-day hearing in March and June 2016 after which a mistrial was declared (Tindill, J.). According to the plaintiff, the defendant may recover fees only for the hearing before this court in May 2017. The court does not agree.
In Krasowski, our Appellate Court cited and quoted the advisory committee notes to the 1970 amendment to Rule 37 of the Federal Rules of Civil Procedure: "Rule 37[c] provides a sanction for the enforcement of Rule 36 dealing with requests for admission ... [and] is intended to provide posttrial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial."
The legal fees and expenses incurred to prove the plaintiff’s cohabitation prior to and during the hearing before Judge Tindill in March and June 2016 became part of the preparation for presenting the defendant’s case and making that proof before this court. See Ruiz v. Cole, Superior Court, judicial district of Waterbury, Docket No. CV-96-01322883-S (Aug. 12, 1999, Leheny, J.) (25 Conn.L.Rptr. 291) (trial court awarded attorneys fees pursuant to Practice Book § 13-25 for legal services rendered to prove liability when defendant unreasonably failed to admit liability; legal services included preparation for and attendance at deposition and efforts to locate fact witness). Pursuant to Practice Book § 13-25, the defendant may recover the attorneys fees and expenses that he incurred to prove the plaintiff’s cohabitation, in the amount of $37,004.32. This amount may also be set-off against the plaintiff’s alimony repayment obligation to the defendant.
III
For the reasons set forth above, the plaintiff’s motions to clarify judgment, postjudgment (# 251.00; # 253.00; # 257.00), are GRANTED IN PART and DENIED IN PART, and it is hereby ORDERED as follows:
1. The defendant shall pay to the plaintiff the total amount of $227,634.90, comprised of the following: $119,842.50, representing one-half of the funds that the defendant withdrew from his E*Trade brokerage account; $73,700, representing on half of the funds that the defendant withdrew from his E*Trade IRA; $27,370.56, representing one-half of the remaining balance in the E*Trade IRA; $6,234, representing one-half of the funds from the sale of the SBC shares; and $487.84, representing one-half of the balance remaining in the E*Trade brokerage account after subtracting the $6,234 payment to the plaintiff for her share of the funds from the sale of the SBC shares.
2. The plaintiff shall repay to the defendant the total amount of alimony paid by the defendant to the plaintiff for the period commencing April 1, 2014.
3. By agreement of the parties, the defendant’s payment obligation to the plaintiff may be set-off against the plaintiff’s alimony repayment obligation to the defendant.
It is further ORDERED that, in accordance with the October 2017 memorandum of decision, the defendant is awarded attorneys fees and costs pursuant to Practice Book § 13-25 in the amount of $37,004.32. This amount may also be set-off against the plaintiff’s alimony repayment obligation to the defendant, leaving a balance due from the defendant to the plaintiff of $61,630.58.
The defendant shall pay the balance due of $61,630.58 to the plaintiff by delivering the funds to the office of the plaintiff’s counsel of record, David N. Rubin, Esq., on or before July 19, 2018.