Opinion
No. FA05-4006102S
September 23, 2010
MEMORANDUM OF DECISION RE MOTION #181.00, POST-JUDGMENT
The marriage of the parties was dissolved by decree of the Superior Court at the Regional Family Trial Docket on December 5, 2008, at which time the court (Gordon, J.) issued a Memorandum of Decision. In relevant part, the decree awarded the jointly-owned family home at 11 Queens Lane, Darien, Connecticut, to the plaintiff wife ("wife"), and called for the defendant husband ("husband") to vacate the premises, in a "broom clean" condition, no later than March 31, 2009. To this day, the husband remains in the premises. In addition, the home was ordered sold, and the wife was to have sole discretion regarding the listing price, and upon sale, the net proceeds, were to be divided equally by the parties. The wife seeks relief by way of a Motion for Contempt (#181.00) dated March 25, 2010. The husband has countered with Special Defenses (#183.00) dated June 25, 2010, to wit: equitable estoppel, laches, waiver, and unclean hands.
In addition to the relief requested in her Motion for Contempt dated March 25, 2010, the wife has asked the court to order the husband to execute a quit claim deed of his interest to her. The court has declined to do at this time, since it was beyond the relief asked for in the motion.
In addition, the husband argues that the market value of the property is so low at present that equity dictates that enforcement of the order should not take place. To that end, the husband offered expert testimony from Mike Colburn, of Trumbull, Connecticut, a real estate appraiser, who had performed appraisals of the property on September 6, 2008 (shortly before the judgment) (Exhibit G), and again on June 15, 2010 (Exhibit F). During this period of time, while the husband occupied the premises, he opined that market value had dropped from $815,000.00 to $650,000.00. The wife countered with the testimony of Ginger Borgman, who performed an appraisal of the property on September 16, 2010 (Exhibit #10). She testified that the market value of the property is $930,000.00. Having listened to both parties and reviewed the exhibits, the court finds that the appraisal and testimony of Ms. Borgman was more credible.
Moreover, the court found it significant that the September 2008 appraisal specifically found the "subject property to be in average condition for the neighborhood. No apparent repairs, deterioration or renovations noted or needed." By contrast, the June 2010 appraisal found that during the husband's occupancy and control, the "subject property suffers from some deferred maintenance in the form of damaged/rotted wood roof, damaged/rotted wood siding, peeling paint, mold/mildew damage, worn interior floors." It is clear to the court that, other than the payment of the mortgage and the replacement of the furnace, the husband has not been a faithful steward of the jointly-owned property.
The wife has asked the court to enforce the judgment of the court as set forth in the Memorandum of Decision dated December 5, 2008. For his part, the husband has asked the court to find that the wife no longer has the power to exercise her rights thereunder, and, moreover, that her actions have resulted in a de facto modification of the underlying judgment leaving him in possession and control of the property. The court heard from the parties and their witnesses over the course of two days.
DISCUSSION:
The authority of a court to equitably divide real and personal property in a family matter in general derives from General Statutes § 46b-1, and more specifically, General Statutes 46b-81. As such, the court must act at the time that the decree dissolving the marriage enters, otherwise it lacks jurisdiction to do so in the future. Rathblott v. Rathblott, 79 Conn.App. 812, 819 (2003). Absent an agreement of the parties, this preclusion extends to any modifications of the underlying award. "An order of the court must be obeyed until it has been modified or successfully challenged." Eldridge v. Eldridge, 244 Conn. 523, 530 (1998). However, a court is permitted to enter appropriate orders which seek an "effectuation of the judgment rather than a modification" and "to protect the integrity of its original judgment." Roberts v. Roberts, 32 Conn.App. 465, 470-71 (1993).
The wife has moved for contempt, and asks the court to execute the underlying judgment. Contempt is an equitable remedy the purpose of which is to enforce a decree. German v. German, 122 Conn. 155, 163-64 (1936). Like a three-legged stool, the remedy is based upon a finding that:(1) there was a clear and unequivocal order of the court; (2) which order was not complied with; and (3) that the non-compliance was wilful and without good cause. Sablosky v. Sablosky, 258 Conn. 713, 718 (2001). For contempt to lie, all three elements must be present. "Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel and have a chance to testify and call witnesses in his behalf." (Emphasis added.) Bryant v. Bryant, 228 Conn. 630, 637 (1994); Practice Book § 25-27.
The court finds that the evidence established the first two prongs of the test for contempt, in that there was a clear and unequivocal order by the court, and the fact that the husband was not in compliance with said order. The court having made these findings, the burden then shifted to the husband to demonstrate that his failure to comply with Judge Gordon's order was not wilful and without good cause. To that end, he has offered four special defenses: equitable estoppel, laches, waiver, and unclean hands. While the Practice Book does not specifically allow the use of special defenses in an action for contempt, nevertheless, the court can, in the exercise of its discretion, consider the "practical effect" of the pleading. Jaser v. Jaser, 37 Conn.App. 194, 202 (1995). Thus, although the court is aware of the admonition of the Appellate Court in Zirinsky v. Zirinsky, 87 Conn.App. 257, 273 (2005) [lack of authority for use of a post-judgment motion to strike] regarding its duty to follow the rules of practice, nevertheless, as a practical matter, the husband's pleading is simply his "defense or explanation" in response to the wife's contention that his failure to comply with the order of the court amounts to contempt.
With that said, however, the court will treat each defense in turn, beginning with equitable estoppel. By definition, "equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse." Brock v. Cavanaugh, 1 Conn.App. 138, 141-42 (1984). There is simply no credible evidence that the husband has changed his position for the worse. Quite the contrary, the evidence supports a finding that, in fact, his position has remained unchanged. He has made no reasonable effort to comply with Judge Gordon's order that he vacate the jointly-owned premises, nor is there any evidence that he has made any effort to make it ready for listing and sale.
Next, the husband has asserted the defense of laches. "The mere lapse of time does not constitute laches," rather there must be a showing that the delay was "inexcusable" and resulted in prejudice to the other party, such as to lead him to change his position. Fromm v. Fromm, 108 Conn.App. 376, 385-86 (2008). The facts clearly do not establish laches on the part of the wife. First, the court can find no evidence of inexcusable delay. In brief, the wife had vacated the marital home in 2004, which the husband has continued to occupy. Shortly after the decree, the husband proposed a modification of the order that would allow him to remain in the home, provided that he refinance the existing mortgage. The wife, promptly filed a motion for contempt dated April 2, 2009 (#177.00). For a variety of reasons this was not pursued to a decision, primarily because of some serious issues involving the parties' minor child, for which the wife assumed primary responsibility, including financially. Later, the wife renewed her motion (#181.00), which has taken more than six months to be heard. More important, the husband has failed to demonstrate prejudice to his position. In fact, the evidence is quite clear that he has not changed his position in reliance upon the actions of the wife. Quite the contrary, he has maintained the same position all along (i.e., he wants to remain in the home). In addition, his payment of any carrying costs (e.g. mortgage, taxes, etc.) are tax deductible and potentially serve to increase his net income, thus providing a benefit to him. Laches does not lie.
"Waiver involves an intentional relinquishment of a known right. . . . Whether conduct constitutes a waiver is a question of fact." Ford v. Ford, 72 Conn.App. 137, 141-42 (2002). Once again, the facts are clear. While there was some testimony that the parties discussed the possibility of the husband refinancing the mortgage and taking title, and that this past spring the husband prepared an application to a lending institution, he has not successfully followed through with the plan. In addition, even if the wife at some point seemed to acquiesce, the wife has clearly withdrawn her consent, if any, and has asked the court to enforce the decree. She even testified that she has made tentative plans to make the premises suitable for listing and sale, and that she has the wherewithal to do so given her income and some financial assistance from her family. The husband has failed to establish a waiver on the part of the wife.
"He who seeks equity, must do equity," is an ancient legal maxim which encapsulates the essence of the doctrine of unclean hands. Judge Gordon ordered the husband to vacate the property no later than March 31, 2009. He has flouted that order. Judge Gordon has ordered the property sold and the proceeds divided. During his occupancy, he has made no serious effort to do so. There is evidence that the property is in need of substantial repairs and suffers from "deferred maintenance." Again, there is no credible evidence that, during his occupancy, he has expended any significant sums to remedy these problems, other than to replace the furnace. In fact, the evidence is clear that the property has deteriorated during the husband's occupancy. If anything, it is the husband who has unclean hands. As such, equity dictates that his plea should fail.
Equitable defenses are not to be construed by this court as a means for modification of the underlying property division, which would be impermissible. "Decrees in a dissolution cannot be modified by acts of the parties without further decree or order by the court." Albrecht v. Albrecht, 19 Conn.App. 146, 151 (1989). This is so for several reasons, not the least of which is principle of the finality of judgments, where to open or modify same, there should be a "strong and compelling reason." Martin v. Martin, 99 Conn.App. 145, 156 (2007). Were the court to find in favor of the husband, we would be left with the anomalous result of a valid decree which could not be enforced by one of the parties, which, in turn, under the fact and circumstances herein, would result in a de facto modification of a property award. The issue is not as the husband suggests, that is, who should keep the property. Rather, it is who is more likely to or be in a better position to implement Judge Gordon's fundamental order to sell the property and divide the net proceeds. The husband has had ample opportunity to do so during his long, wrongful occupancy since March 31, 2009, and he has failed, without good reason to do so. There is no valid reason why a listing and sale cannot and should not be accomplished, even now. The court has heard the testimony and considered the evidence and finds, as did Judge Gordon, that the wife is more likely and is in a better position to do so.
Accordingly, the court finds that the husband has failed to meet his burden of proof, and that he is in wilful noncompliance with the order of this court, and as such, he is in contempt of court. Where a party has been found in contempt, the court may award reasonable attorneys fees. General Statutes § 46b-87; Mallory v. Mallory, 207 Conn. 48, 58-59 (1988).
ORDER
For the foregoing reasons, the Motion for Contempt is HEREBY GRANTED, and it is FURTHER ORDERED THAT on or before CT Page 18677 October 31, 2010, the husband shall vacate the premises known as 11 Queen's Way in Darien, Connecticut, and that he should leave the premises in a "broom clean" condition. The other provisions of the decree of this court, including but not limited to, the transfer of title, fix-up expenses, carrying costs, listing, sale, and division of the net proceeds, shall remain in full force and effect, and the court shall retain jurisdiction to enter any appropriate order. AND IT IS FURTHER ORDERED THAT, pursuant to General Statutes § 46b-87, the wife shall be entitled to reasonable attorneys fees associated with the prosecution of this motion, which shall be determined by the court upon motion of the wife duly made and filed, together with an affidavit of fees in the proper form submitted by counsel.