Lawrence v. Cords , 165 Conn. App. 473 ( 2016 )

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KARIN LAWRENCE v. MANUEL CORDS
(AC 37323)
DiPentima, C. J., and Prescott and Mullins, Js.
Argued February 4—officially released May 17, 2016
(Appeal from Superior Court, judicial district of
Litchfield, Gallagher, J. [dissolution judgment];
Trombley, J. [contempt motion; motion to terminate
automatic stay].)
Gregory T. Nolan, with whom, on the brief, was Patsy
M. Renzullo, for the appellant (defendant).
Regina M. Wexler, with whom, on the brief, were
Mark H. Swerdloff and Ileen P. Swerdloff, for the appel-
lee (plaintiff).
Opinion
PRESCOTT, J. In this marital dissolution action, the
defendant, Manuel Cords, appeals from the trial court’s
postdissolution judgment in favor of the plaintiff, Karin
Lawrence, finding the defendant in contempt and order-
ing him to pay the plaintiff $246,000 plus interest in
several installments. On appeal, the defendant claims
that the court improperly (1) terminated the automatic
appellate stay of execution of a prior order of contempt
and (2) modified the division of property postdissolu-
tion. We affirm the judgment of the trial court.
The following facts, as found in the record or as
stated by this court in Lawrence v. Cords, 159 Conn.
App. 194, 196–98, 122 A.3d 713 (2015) (Lawrence I),
and procedural history are relevant to our consideration
of the defendant’s claims. ‘‘The marriage of the parties
was dissolved on November 19, 2013. Pursuant to that
judgment, the court, Gallagher, J., issued various orders
regarding the parties’ marital property. With respect to
their real property, the court ordered, inter alia:
‘‘ ‘7. Upon payment of $246,000 by the defendant to
the plaintiff as set forth herein, the plaintiff shall quit-
claim all her right, title and interest in 61 [Phelps]1 Road
[(property)] to the defendant. The defendant shall hold
the plaintiff harmless on all notes and mortgages regard-
ing the Colebrook properties.2 . . .
‘‘ ‘8. The defendant shall pay to the plaintiff the sum
of $246,000 within 60 days of notice of this decision.
Should the defendant fail to pay the sum of $246,000
to the plaintiff in the time period allotted, the defendant
shall take whatever steps necessary to remove the cloud
on the title he caused to be placed in the name of Sibling
Associates, and the parties shall immediately thereafter
cause 61 Phelps Road to be placed on the market. The
sales price will be determined by the real estate broker.
Upon sale of the subject property, the proceeds shall
be paid out as follows: payment in full of the Webster
Bank mortgage; $246,000 plus interest on said sum at
the legal rate to the plaintiff; remainder to the defen-
dant. Said interest begins running sixty days from the
date of this decision.’
‘‘On January 27, 2014, the plaintiff filed a motion for
contempt on the ground that the defendant had failed to
comply with the above-referenced orders of the court.
Specifically, she alleged that more than sixty days had
passed since the date of the dissolution judgment, but
that the defendant had not paid her the ordered sum
of $246,000, nor had the defendant taken any steps to
list the subject property for sale. She claimed that the
defendant failed to hold her harmless for the mortgage
on the property and that she had paid it for the months
of December, 2013, and January, 2014. She thus asked
the court to find the defendant in contempt, ‘together
with appropriate orders, including a reasonable attor-
ney fee necessitated by the requirement that she file
this motion.’
‘‘The court, Gallagher, J., held a hearing on the plain-
tiff’s motion for contempt on February 10, 2014, at
which both parties testified. Following that testimony
and oral argument by attorneys for both parties, the
court ruled from the bench, finding the defendant in
contempt because he did not pay the mortgage on the
property or put the house on the market. . . . The
court ordered that the house be put on the market
within seven days and that the defendant pay the prop-
erty taxes on the property. The court held: ‘Now, he
has assets to pay her; he can either do that or he—he
can do one of two things in seven days. He can either
pay her the $246,000 plus the money that he owes on
the mortgage payments that she made or he can start
paying—he can put it on the market within seven days,
and he can also pay the taxes that are owed and pay
the monthly payments on the mortgage.’ The court also
ordered the defendant to pay attorney’s fees in the
amount of $800 for the plaintiff’s attorney.’’ (Footnotes
added.) Id.
The defendant appealed to this court from the court’s
finding of contempt, arguing that the court improperly
modified the property distribution order by requiring
him to pay the mortgage on the property and found
him in contempt for not paying the mortgage. On August
11, 2015, this court held that the court’s order effectu-
ated, rather than modified, its dissolution order regard-
ing the payment of the mortgage, but because the
dissolution order had been ambiguous concerning the
mortgage payment, the defendant’s noncompliance was
not wilful, and, thus, the court’s finding of contempt
was improper. Id., 200, 202.
While Lawrence I was pending before this court, on
March 20, 2014, the plaintiff filed a second motion for
contempt on the ground that the defendant continued
to fail to pay the mortgage on the property and the
property taxes. On July 21, 2014, the plaintiff also filed
a motion to terminate the automatic stay of execution
of the February 10, 2014 order that was in place as a
result of the filing of the appeal in Lawrence I. The
plaintiff alleged that the appeal in Lawrence I had been
taken only for the purpose of delay, and, thus, the auto-
matic stay of execution should be terminated.
On August 5 and 11, 2014, a hearing on the motions
was held. After hearing testimony from both parties
and the defendant’s real estate broker, Marshall Cohen,
the court, Trombley, J., issued an oral ruling from the
bench on August 11, 2014. The court explicitly declined
to terminate the automatic stay with regard to the Feb-
ruary 10, 2014 order that the defendant pay the property
taxes and attorney’s fees. The court then found the
defendant in contempt for failing to make the mortgage
payments and for failing to pay the plaintiff for her
share of the property or to put the property on the
market. The court ordered the defendant ‘‘to reimburse
the [plaintiff] $16,783.68, which is the mortgage [that]
she paid . . . and [to] make monthly payments, com-
mencing with the September payment, of the principal
and interest to Webster Bank [the mortgager] until the
[property] is sold or until the [plaintiff] is paid her
$246,000 plus interest.
‘‘Second, the [defendant] shall make the $246,000 pay-
ment to the [plaintiff] in installments, each to include
the [10] percent accumulated interest. First installment
of $82,000 is to be paid on or before December 1, 2014,
plus interest; second installment is to be paid, $82,000,
on or before July 1, 2015, plus interest; and the final
installment of $82,000 is to be paid by December 31,
2015, plus interest.’’ This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that the court improperly
terminated the automatic stay of execution of the Feb-
ruary 10, 2014 order that was triggered, pursuant to
Practice Book § 61-11 (a),3 by the filing of the appeal
in Lawrence I. Specifically, the defendant argues that by
ruling on issues that were before the Appellate Court—
namely, whether the defendant was required to pay
the mortgage on the property—the court improperly
terminated the automatic stay of execution of the Feb-
ruary 10, 2014 contempt order.4 We decline to review
this claim because it is not presented properly for reso-
lution on appeal.
Practice Book § 61-14 provides in relevant part: ‘‘The
sole remedy of any party desiring the court to review
an order concerning a stay of execution shall be by
motion for review under [Practice Book §] 66-6.5 Execu-
tion of an order of the court terminating a stay of execu-
tion shall be stayed for ten days from the issuance of
notice of the order, and if a motion for review is filed
within that period, the order shall be stayed pending
decision of the motion, unless the court having appel-
late jurisdiction rules otherwise. . . .’’ (Footnote
added.) Thus, ‘‘[i]ssues regarding a stay of execution
cannot be raised on direct appeal. The sole remedy of
any party desiring . . . [review of] . . . an order con-
cerning a stay of execution shall be by motion for review
. . . .’’ (Internal quotation marks omitted.) Santoro v.
Santoro, 33 Conn. App. 839, 841, 639 A.2d 1044 (1994);
see also JP Morgan Chase Bank v. Gianopoulos, 131
Conn. App. 15, 23, 30 A.3d 697 (‘‘[t]he trial court’s deci-
sion to terminate an appellate stay is subject to review
only pursuant to a timely motion for review’’), cert.
denied, 302 Conn. 947, 30 A.3d 2 (2011); Housing
Authority v. Morales, 67 Conn. App. 139, 140, 786 A.2d
1134 (2001) (‘‘[i]ssues regarding a stay of execution
cannot be raised on direct appeal’’ [internal quotation
marks omitted]).
If the defendant here believed that the effect of the
court’s ruling was a termination of the automatic stay of
execution, he was obligated to file a motion for review.
Having failed to do so, he is precluded now from raising
this issue on direct appeal. Accordingly, we decline to
review the claim.
II
The defendant also claims that the court improperly
modified postdissolution the property distribution
order. Specifically, he argues that the court improperly
reallocated the property distribution by ordering the
defendant to pay the plaintiff $246,000 for her share in
the property from his personal assets, rather than from
the proceeds from the sale of the property. The plaintiff
responds that the court’s order did not modify the disso-
lution judgment but effectuated it. We agree with the
plaintiff that the court’s order properly effectuated the
property distribution of the judgment of dissolution.
The following additional facts are relevant to this
claim. The relevant portions of the judgment of dissolu-
tion provide that:
‘‘3. The plaintiff’s interest in [her mutual bonds and
trusts] is hers and hers alone.
‘‘4. The defendant’s interest in Sibling Associates [a
limited partnership that he entered into with his sib-
lings] is his and his alone.
‘‘5. The plaintiff’s retirement account and all bank
accounts in her name are hers and hers alone.
‘‘6. The defendant’s retirement account and all bank
accounts in his name are his and his alone.
‘‘7. Upon payment of $246,000 by the defendant to
the plaintiff as set forth herein, the plaintiff shall quit-
claim all her right, title and interest in [the property]
to the defendant. The defendant shall hold the plaintiff
harmless on all notes and mortgages regarding the Cole-
brook properties.
‘‘8. The defendant shall pay to the plaintiff the sum
of $246,000 within 60 days of notice of this decision.
Should the defendant fail to pay the sum of $246,000
to the plaintiff in the time period allotted, the defendant
shall take whatever steps necessary to remove the cloud
on the title he caused to be placed in the name of Sibling
Associates, and the parties shall immediately thereafter
cause 61 Phelps Road to be placed on the market. The
sales price will be determined by the real estate broker.
Upon sale of the subject property, the proceeds shall
be paid out as follows: payment in full of the Webster
Bank mortgage; $246,000 plus interest on said sum at
the legal rate to the plaintiff; remainder to the defen-
dant. Said interest begins running sixty days from the
date of this decision.’’
During the hearing on the second motion for con-
tempt, the court found that the defendant had not paid
the plaintiff the $246,000 owed to her pursuant to para-
graphs 7 and 8 of the dissolution judgment but that he
had the assets to do so. The court stated: ‘‘Does [the
defendant] have assets or the wherewithal to pay the
$246,000. You bet. He’s got $217,500 equity in the very
real estate that’s being marketed. He’s got $120,000 in
a stock account. . . . Of his $404,000 in liability,
[$]363,000 is listed to . . . Cords and Sibling Associ-
ates.’’ The court also found that the defendant had not
placed the property on the market and noted that the
defendant had gone out of his way to make the property
unmarketable by drafting a listing agreement6 that
included a listing price that was more than the court
appraised price and an eleven page addendum, detailing
every potential defect in the property. The court then
ordered the defendant to ‘‘make the $246,000 payment
to the [plaintiff] in installments, each to include the [10]
percent accumulated interest.’’ The court also ordered
the parties to place the property on the market, without
the eleven page addendum, with an initial listing price
of $795,000, which should be reduced by 3 percent every
ninety days but not less than $625,000.
‘‘[O]ur statutes give the court the authority to dispose
of and to distribute the marital estate in a dissolution
proceeding. See General Statutes § 46b-66 (a) (authority
to incorporate separation agreement dealing with dispo-
sition of property); General Statutes § 46b-81 (authority
to assign property and to allocate liabilities and debts
of parties). Additionally, [General Statutes] § 46b-1
gives the court the jurisdiction to entertain, as family
matters, all matters affecting or involving: (1) [d]issolu-
tion of marriage . . . and (17) all such other matters
within the jurisdiction of the Superior Court concerning
children or family relations as may be determined by
the judges of said court.
‘‘[I]t is equally well settled . . . that . . . . [t]he
court’s authority to transfer property appurtenant to a
dissolution proceeding rests on § 46b-81.7 . . .
Accordingly, the court’s authority to divide the personal
property of the parties, pursuant to § 46b-81, must be
exercised, if at all, at the time that it renders judgment
dissolving the marriage. . . . A court, therefore, does
not have the authority to modify the division of property
once the dissolution becomes final. . . .
‘‘Although the court does not have the authority to
modify a property assignment,8 a court, after distribut-
ing property, which includes assigning the debts and
liabilities of the parties, does have the authority to issue
postjudgment orders effectuating its judgment.’’ (Cita-
tions omitted; footnotes added; internal quotation
marks omitted.) Roos v. Roos, 84 Conn. App. 415, 421–
22, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d
510 (2004). ‘‘[I]t is . . . within the equitable powers of
the trial court to fashion whatever orders [are] required
to protect the integrity of [its original] judgment.’’ (Inter-
nal quotation marks omitted.) Santoro v. Santoro, 70
Conn. App. 212, 217, 797 A.2d 592 (2002). ‘‘This court has
explained the difference between postjudgment orders
that modify a judgment rather than effectuate it. A modi-
fication is [a] change; an alteration or amendment which
introduces new elements into the details, or cancels
some of them, but leaves the general purpose and effect
of the subject-matter intact. . . . In contrast, an order
effectuating an existing judgment allows the court to
protect the integrity of its original ruling by ensuring
the parties’ timely compliance therewith.’’ (Internal
quotation marks omitted.) Callahan v. Callahan, 157
Conn. App. 78, 89, 116 A.3d 317, certs. denied, 317 Conn.
913, 914, 116 A.3d 812, 813 (2015).
‘‘If a party’s motion can fairly be construed as seeking
an effectuation of the judgment rather than a modifica-
tion of the terms of the property settlement, this court
must favor that interpretation. . . . Similarly, when
determining whether the new order is a modification,
we examine the practical effect of the ruling on the
original order.’’ (Citation omitted; internal quotation
marks omitted.) Roos v. Roos, supra, 84 Conn. App.
422–23.
‘‘In order to determine the practical effect of the
court’s order on the original judgment, we must exam-
ine the terms of the original judgment as well as the
subsequent order. [T]he construction of [an order or]
judgment is a question of law for the court . . . [and]
our review . . . is plenary. As a general rule, [orders
and] judgments are to be construed in the same fashion
as other written instruments. . . . The determinative
factor is the intention of the court as gathered from all
parts of the [order or] judgment. . . . The interpreta-
tion of [an order or] judgment may involve the circum-
stances surrounding [its] making. . . . Effect must be
given to that which is clearly implied as well as to that
which is expressed. . . . The [order or] judgment
should admit of a consistent construction as a whole.’’
(Internal quotation marks omitted.) Schneider v.
Schneider, 161 Conn. App. 1, 7, 127 A.3d 298 (2015).
The defendant argues that the dissolution judgment
granted him the choice between paying the plaintiff the
$246,000 within sixty days or paying the plaintiff for
her interest in the property from the proceeds of the
sale of the property. The defendant contends that
because he chose to pay the plaintiff from the proceeds
of the sale of the property, the court improperly modi-
fied the property distribution by requiring him to pay the
plaintiff from his personal assets, which the judgment of
dissolution awarded to him and him alone, prior to the
sale of the property. We conclude, however, that the
court’s consideration of, and decision on, the plaintiff’s
motion for contempt did not alter the terms of the
judgment of dissolution, but rather fashioned a remedy
appropriate to protect the integrity of its original
judgment.
The judgment of dissolution provided that the plain-
tiff would receive $246,000 for the value of her interest
in the property. If the defendant failed to pay this sum
to the plaintiff within sixty days from the date of dissolu-
tion, the property would be placed on the market and
the plaintiff would be paid the $246,000 from the pro-
ceeds of the sale. Contrary to the defendant’s argument,
this provision does not provide him with a choice
between paying the plaintiff from his personal assets
or from the proceeds of the sale of the property. Rather,
this provision seeks to ensure that the plaintiff receives
the sum owed to her by the defendant. The court found
that there was substantial equity in the property. Thus,
in the event that the defendant failed to pay the plaintiff
within sixty days, the court in the judgment of dissolu-
tion inserted a safety valve to guarantee that the plaintiff
received $246,000 by ordering the property to be placed
on the market.
The defendant had almost nine months between the
date of dissolution and the August 11, 2014 order to
either pay the plaintiff or work with the plaintiff to
place the property on the market. The defendant did
neither. Additionally, the court found that the defendant
hindered the sale of the property by attaching an eleven
page addendum to the proposed listing agreement,
detailing every potential defect to the property. The
defendant not only failed to comply with the judgment
of dissolution, but also acted to impede the sale of the
property, and, thus, ‘‘noncompliance on the part of the
parties [has] made strict adherence to the terms of the
[judgment of dissolution] impossible.’’ (Internal quota-
tion marks omitted.) Santoro v. Santoro, supra, 70
Conn. App. 218. The only option left to the court to
enforce the judgment was to fashion ‘‘an appropriate
remedy to protect the integrity of the original judg-
ment.’’ Id. That is precisely what the court did.
The court’s order that the defendant pay to the plain-
tiff $246,000, plus interest, in three installments over
the course of a year is analogous to the effectuation of
the judgment of dissolution in Santoro v. Santoro,
supra, 70 Conn. App. 218. In Santoro, the judgment of
dissolution ordered the plaintiff to pay the defendant
$30,000 as a lump sum within five years from the date
of dissolution, which the plaintiff failed to do. Id. The
trial court subsequently found the plaintiff in contempt
and ordered the plaintiff to pay to the defendant $5495
up front and $24,505 over the course of thirty-two years
to effectuate the original judgment. This court upheld
that determination on appeal because it was an order
effectuating, not modifying, the original judgment. Id.
This court held that once strict adherence to the terms
of the judgment of dissolution is impossible, the court
may fashion an appropriate remedy to effectuate the
orders of the judgment. Id.; see also Simes v. Simes,
95 Conn. App. 39, 41, 44–45, 895 A.2d 852 (2006) (‘‘[T]he
plaintiff had paid only $5000 of his $9500 monthly obli-
gation . . . . The plaintiff, therefore, needed to make
up the $4500 deficiency for each month. We accordingly
conclude that the court’s order permitting the $4500
monthly shortfall to be paid out of the plaintiff’s equita-
ble share of the residence did not alter the terms of
the original order, but rather fashioned an appropriate
remedy to protect the integrity of the original award.’’).
In the present case, sixty days from the date of disso-
lution had passed and the court found that the defen-
dant had prevented the property from being placed on
the market. Strict adherence to the terms of the judg-
ment of dissolution was impossible, and, thus, the court
fashioned an appropriate remedy to protect the integrity
of the judgment. The original judgment awarded the
plaintiff $246,000 for her share in the property to be
paid from either the defendant’s personal assets or from
the proceeds of the sale of the property. This is precisely
what the August 11, 2014 order seeks to effectuate.
Furthermore, the court did not directly order the
defendant to pay the plaintiff from his personal assets.
In other words, the defendant was not necessarily
required to liquidate his personal assets, like his retire-
ment account, to make the installment payments,
because the court also ordered the parties to place
the property on the market, without the eleven page
addendum. The court left open the possibility that the
property would be sold and that the defendant then
could pay the plaintiff from the proceeds of the sale.
Given the defendant’s reticence in complying with the
court’s orders, however, the court ensured that the
plaintiff would receive the sum owed to her within a
specified span of time one way or another.
In sum, the defendant’s contemptuous actions ren-
dered strict compliance with the judgment of dissolu-
tion impossible, and, thus, the court crafted an
appropriate remedy to effectuate the judgment. Accord-
ingly, we conclude that the court did not improperly
modify the property distribution postdissolution.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that in its judgment of dissolution, the court referred to the
property as 61 Phelps Road initially, but later identified the property as 61
Colebrook Road. Our review of the record shows that the property in ques-
tion is located at 61 Phelps Road in Colebrook.
2
In addition to 61 Phelps Road, the defendant was the sole legal owner
of additional land near 61 Phelps Road.
3
Practice Book § 61-11 (a) provides in relevant part: ‘‘Except where other-
wise provided by statute or other law, proceedings to enforce or carry out
the judgment or order shall be automatically stayed until the time to file
an appeal has expired. If an appeal is filed, such proceedings shall be stayed
until the final determination of the cause. . . .’’
4
We note that to the extent that the defendant argues in his brief that
the court improperly violated the automatic stay of execution, rather than
terminated it, such a claim was waived by the defendant on appeal. At oral
argument to this court, the defendant’s counsel specifically stated that the
claim being raised is that the court improperly terminated the automatic
stay, not that it improperly violated it.
5
Practice Book § 66-6 provides in relevant part: ‘‘The court may, on written
motion for review stating the grounds for the relief sought, modify or vacate
. . . any order made by the trial court concerning a stay of execution in a
case on appeal . . . . Motions for review shall be filed within ten days from
the issuance of notice of the order sought to be reviewed. . . .’’
6
Although the parties did not place the property on the market, the
defendant did draft a listing agreement with his real estate broker. The
property, however, never was listed because the plaintiff would not sign
the listing agreement on the ground that the eleven page addendum and
high listing price were unreasonable.
7
General Statutes § 46b-81 (a) provides: ‘‘At the time of entering a decree
annulling or dissolving a marriage or for legal separation pursuant to a
complaint under section 46b-45, the Superior Court may assign to either
spouse all or any part of the estate of the other spouse. The court may pass
title to real property to either party or to a third person or may order the
sale of such real property, without any act by either spouse, when in the
judgment of the court it is the proper mode to carry the decree into effect.’’
8
We recognize that there are conflicting decisions of this court regarding
whether the modification of a property distribution postdissolution impli-
cates the court’s subject matter jurisdiction or merely its statutory authority.
Compare McLoughlin v. McLoughlin, 157 Conn. App. 568, 575–76 n.5, 118
A.3d 64 (2015) (‘‘we note that the distribution of personal property postdisso-
lution does not implicate the court’s subject matter jurisdiction but, rather,
its statutory authority’’), and Roos v. Roos, 84 Conn. App. 415, 421–22, 853
A.2d 642 (noting that distribution of personal property postdissolution is
question of statutory authority, not subject matter jurisdiction), cert. denied,
211 Conn. 936, 861 A.2d 510 (2004), with Forgione v. Forgione, 162 Conn.
App. 1, 6–7, 129 A.3d 766 (2015) (stating that court lacked subject matter
jurisdiction to modify property distribution postdissolution), and Sousa v.
Sousa, 157 Conn. App. 587, 596, 116 A.3d 865 (‘‘by subsequently [postdissolu-
tion] modifying the order dividing the plaintiff’s pension benefits equally
between the parties, the court acted outside of its jurisdictional authority’’),
cert. granted, 317 Conn. 917, 118 A.3d 61 (2015). See also Bunche v. Bunche,
180 Conn. 285, 289, 429 A.2d 874 (1980) (‘‘[b]y its terms, the statute deprives
the Superior Court of continuing jurisdiction over that portion of a dissolu-
tion judgment providing for the assignment of property of one party to the
other party under . . . § 46b-81’’); Smith v. Smith, 249 Conn. 265, 273,
752 A.2d 1023 (1999) (‘‘[T]he statutory scheme regarding financial orders
appurtenant to dissolution proceedings prohibits the retention of jurisdiction
over orders regarding lump sum alimony or the division of the marital
estate . . . [and] confers authority on the trial courts to retain continuing
jurisdiction over orders of periodic alimony, but not over lump sum alimony
or property distributions pursuant to § 46b-81.’’ [Citations omitted; internal
quotation marks omitted.]). These cases, however, do not address the distinc-
tion made by our Supreme Court in Amodio v. Amodio, 247 Conn. 724, 728,
724 A.2d 1084 (1999), that ‘‘the court’s authority to act pursuant to a statute
is different from its subject matter jurisdiction.’’ Because we find that the
court’s August 11, 2014 order effectuated, rather than modified, the judgment
of dissolution, we need not address this issue.