Opinion
No. FA 03-0405979S
June 3, 2009
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO ENJOIN, POSTJUDGMENT (281.00)
At issue is whether the court should grant the plaintiff's motion to enjoin the defendant from dissipating the funds he obtained from the sale of his interest in a family trust and order him to place $96,000 in escrow as security for future child support pending the outcome of the appeal.
FACTS
The following facts have been alleged in the pleadings of the parties. The marriage between the plaintiff, Camy Tunick, and the defendant, Stephen Tunick, was dissolved on November 28, 2005. As part of the financial orders entered by the court, the defendant was ordered to pay $2,600 per month as support for the three minor children. Subsequently, this support order was modified downward to $2,000 per month and is the current order. In accordance with the parties' prenuptial agreement, the defendant was to pay the plaintiff $150,000 as property division. The defendant claimed that his only source of income came from a 1/3 interest in a family trust. The court ordered his support payments to be made directly from the trust fund. On September 14, 2006, as a result of the defendant's failure to pay the $150,000 the court modified that portion of the order and required the defendant to pay $4,000 per month until the outstanding balance of $150,000 was paid in full. In December 2008, the defendant was able to sell his interest in the trust for $2.4 million. This amount was sufficient for the defendant to pay the outstanding balance due on the $150,000. The payment was not made. The plaintiff believed that the defendant's attorney would hold the funds from the trust until the balance owed on the property division was paid in full. The funds, however, were released to the defendant.
The plaintiff became concerned about receiving future child support payments because the defendant's financial affidavit included a large amount of debt. She filed a motion asking the court to secure future support payments. On January 21, 2009, the court, Owens, J., ordered the defendant to secure four years worth of child support or $96,000. The defendant filed a motion to reargue and one to reconsider the court's decision and the plaintiff filed a motion for contempt. The motion for contempt was denied without prejudice. The defendant's two motions were also denied on February 26, 2009, from which he filed an appeal on March 12, 2009.
On April 8, 2009, the plaintiff filed a motion to enjoin the defendant from receiving, distributing, and/or dissipating the funds he obtained from the sale of his interest in the trust in order for her to secure these funds for future child support. She sought to secure $96,000 into an escrow account, pending the outcome of the defendant's appeal. The defendant filed a memorandum of law in opposition.
DISCUSSION
In support of her motion, the plaintiff argues that the court has authority to provide security to protect its orders pursuant to General Statutes §§ 46b-82 and 46b-86 and that the equitable authority of the court requires it to protect the integrity of its judgments in dissolution cases. Specifically, the plaintiff maintains that the court can enter orders to secure the funds for future child support "where there has been some action on the part of the payor indicating a threat to the integrity of the court's judgment." In response, the defendant agrees that the court can order a party to provide security for financial awards under §§ 46b-82 and 46b-86. The defendant counters, however, that there is no authority to enjoin him from spending his own funds and that the plaintiff is asking for "a taking of the defendant's funds." The defendant argues that the plaintiff has provided no evidence that the funds will be dissipated other than testifying that "he spends a lot of money." Next, the defendant contends that since Judge Owens already denied the plaintiff's motion for contempt with respect to setting up "a child support security account," the plaintiff is "attempting to find a back door way to have the defendant's funds held in escrow when the Connecticut Appellate Court has jurisdiction over the matter and there is an automatic stay in place of Judge Owen's Order." As a result, the defendant maintains that "[t]he matter now before the Court is barred by the doctrine of res judicata."
Section 46b-82(a) provides in relevant part: "At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable . . ." Section 46b-82(b) provides: "Any postjudgment procedure . . . shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of alimony."
The court in Bisson v. Bisson, 5 Conn.App. 67, 68-69, 496 A.2d 543 (1985), examined subsection (a) of § 46b-82. At the conclusion of the dissolution proceeding, the trial court had ordered the defendant "not to sell, pledge, transfer, or encumber his corporate stock in Hartford Tape Label Incorporated or in the real estate owned by it without the consent of the plaintiff; or, failing such consent, upon the order of the court." The defendant appealed "the propriety of the security order." Id., 69. Interpreting the language in subsection (b) of § 46b-82, the Appellate Court stated: "The use of the word `may' in the statute clearly invokes the discretionary power of the trial court . . . Our review is thus limited to ascertaining whether the order for security constituted an abuse of the trial court's discretion . . . For us to conclude that the trial court abused its discretion, we must ultimately discern whether the court could reasonably conclude as it did . . .
"Security for the payment of alimony may appropriately be required where the court reasonably anticipates that the obliger spouse's extravagant disposition of property may render the enforcement of the order difficult. 24 Am.Jur.2d, Divorce and Separation 771. The amount of security which a court may order depends upon the evidence in the particular case. Id. Because of the trial court's unique opportunity to observe the appearance and attitude of the parties and to evaluate the evidence firsthand, we accord great weight to its judgment when financial awards in a dissolution are challenged on appeal . . .
"The record and the transcript in this case are replete with instances reflecting the inclination of the defendant to engage in financial manipulation. We therefore conclude that the trial court's decision to require security for its financial awards finds full support in the evidence elicited at the trial." (Citations omitted.) Bisson v. Bisson, supra, 5 Conn.App. 69-70.
In Stein v. Hildebrand, 240 Conn. 35, 688 A.2d 1317 (1997), the Supreme Court also interpreted subsection (a) of § 46b-82. The issue involved "the statutory authority of [the] trial court, in a dissolution of marriage action, to order the execution of a mortgage on real property as security for future alimony and child support payments." Id., 36. The court explained that "the statutory language authorizing security `on such terms as the court may deem desirable' underlines the legislature's intent to confer `broad judicial discretion' on a dissolution court to frame a remedial order that takes account of all the resources available to the parties . . . This statutory language is, on its face, inconsistent with a legislative intent to limit the forms of property to which a court may look as security for the obligations it imposes." (Citation omitted.) Id., 41. The court further stated that "the legislative history reveals that these provisions were adopted in response to concerns that former spouses were frequently avoiding their alimony and support obligations. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1973 Sess., pp. 233-37, remarks of Barbara Lifton. To interpret the security language in § 46b-82 to exclude real property would, therefore, defeat the remedial purpose of this legislation by removing a stationary, valuable, and ascertainable form of property from the class of available security. This we decline to do." Id.
In addition, the legislature has provided in the Family Support Magistrate's Act, General Statutes § 46b-231 et seq., family magistrates with the authority to require security for financial support orders. Section 46b-231(m) sets forth the powers and duties of the family magistrates and subsection (9) specifically provides that if an "order is not secured by income withholding, the family support magistrate may require the obligor to execute a bond or post other security" in an amount sufficient to pay the support order "provided [the court] finds that such a bond is available for purchase within the financial means of the obligor." General Statutes § 46b-231(m)(9). The court may order an obligor to provide a cash deposit not exceeding four times the current monthly support and arrearage obligation if an obligor is delinquent on his or her payment of child support, and future support payments are in jeopardy or the obligor expresses or exhibits an intention not to pay; the amount is held in escrow. General Statues § 52-362i.
Section 46b-82(b) provides this court with the authority to secure the defendant's obligation for future child support payments. Therefore, there is no taking by the court as the defendant argues. Moreover, the defendant has provided no law for his position. On the other hand, the plaintiff has presented evidence that she has filed numerous motions for contempt regarding the court's orders as to the financial awards with which the defendant has not complied.
The defendant next argues that the judge's denial of the plaintiff's motion for contempt with respect to his placing $96,000 into an escrow account as security for future child support payments bars the plaintiff under the doctrine of res judicata from relitigating this claim in her motion to enjoin the defendant from dissipating the funds and to secure funds for future child support. The defendant states: "The plaintiff cannot have a `second bite at the apple' with a new judge requesting the same relief." In support of his argument, the defendant cites to Powell v. Infinity Ins. Co., 282 Conn. 594, 922 A.2d 1073 (2007). In Powell, the court stated that "[t]he doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made." (Internal quotation marks omitted.) Id., 600. The denial of a motion for contempt is a final judgment for purposes of appeal. Pritchard v. Pritchard, 281 Conn. 262, 273, 914 A.2d 1025 (2007). In addition, "the party asserting the affirmative defense of res judicata bears the burden of establishing its applicability." Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195, 629 A.2d 1116 (1993).
While some of the facts from which these two claims arise are similar, the issues on which the motion for contempt was resolved by the trial court were not on the merits. The court denied the motion for contempt without prejudice. Thus, the motion was decided on a procedural ground, namely, that the time period for filing an appeal had not yet run and "once the appeal was filed the court's order would be automatically stayed in accord with [the appellate rules of procedure] [§ ]61-11." Since the first action was not decided on the merits there can be no res judicata of the second one.
CONCLUSION
The court grants the plaintiff's motion to secure funds for future child support. The amount to be secured shall be $65,000.