Zilkha v. Zilkha

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KAREN ZILKHA v. DAVID ZILKHA
(AC 39832)
DiPentima, C. J., and Lavine and Elgo, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
denying his motion to return certain escrow funds that the trial court
had ordered be dispersed to pay the fees of the guardian ad litem,
the attorney for the parties’ minor children and the custody evaluator.
Following the dissolution of the parties’ marriage, the plaintiff filed a
motion to open the dissolution judgment, alleging that, during the pen-
dency of the dissolution action, the defendant fraudulently had failed
to disclose a claim that he had against his former employer. At the time
the motion to open was filed, the defendant had received a certain
amount of money pursuant to a settlement with his former employer
regarding this claim, and the defendant was anticipating receipt of the
final installment payment from that settlement. The trial court thereafter
ordered the defendant to place a certain amount of the final installment
payment in escrow pending the outcome of a hearing to determine
whether the plaintiff could sustain her allegations of fraud by more than
a mere suspicion. Following that hearing, the court concluded that there
was more than a mere suspicion that the defendant had committed
fraud. Thereafter, the attorney for the minor children filed a motion to
compel the payment of present and future fees for himself, the guardian
ad litem and the custody evaluator. The court granted that motion,
approved certain fees and ordered the disbursement of funds from the
escrow account to pay those fees. The defendant then appealed to this
court, which reversed the judgment as to the order disbursing the escrow
funds and vacated that portion of the order, concluding that the trial
court lacked authority to order the disbursement of the funds without
first opening the judgment. Thereafter, the defendant filed a motion to
return the disbursed funds to the escrow account. The trial court denied
the motion, concluding that it could not afford the defendant any practi-
cal relief because equity did not permit the return of the court-approved
fees. On appeal, the defendant claimed that, in denying his motion, the
trial court disregarded an order of this court by failing to effectuate the
return of the funds to the escrow account. Held that the trial court
properly denied the defendant’s motion to return the escrow funds:
contrary to the defendant’s claim, the trial court did not ignore an order
of this court that provided for the recoupment of the subject funds, as
this court in the prior appeal did not remand the case with direction
that the funds be returned to the escrow account, the rescript having
stated only that the trial court’s order to disburse the funds from the
escrow account be vacated; moreover, the defendant’s assertion that
the trial court erred by not using its equitable powers to effectuate the
return of the funds disbursed from the escrow account was unavailing,
as the court properly concluded that it could not afford the defendant
any practical relief because there was no way to recoup funds that
properly were awarded and paid for services rendered by the guardian
ad litem, the children’s attorney and the custody evaluator, and the
defendant failed to cite any equitable or legal basis requiring the return
of the funds.
Argued April 12—officially released June 5, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Abery-
Wetstone, J.; judgment dissolving the marriage and
granting certain other relief in accordance with the
parties separation agreement and stipulation; there-
after, the plaintiff filed a motion to open the judgment;
subsequently, the court, Shay, J., issued an order direct-
ing the defendant to place certain settlement proceeds
in escrow; thereafter, the court, Shay, J., granted the
motion filed by the attorney for the minor children for
fees and retainers for the guardian ad litem et al. and
ordered, inter alia, the disbursement of certain escrow
funds, from which the defendant appealed to this court;
subsequently, the matter was transferred to the judicial
district of Waterbury; thereafter, this court reversed the
judgment in part and vacated the judgment in part;
subsequently, the court, Hon. Lloyd Cutsumpas, judge
trial referee, denied the defendant’s motion to return
the dispersed escrow funds, and the defendant appealed
to this court. Affirmed.
Edward N. Lerner, with whom, on the brief, was
George Kent Guarino, for the appellant (defendant).
Opinion
LAVINE, J. The defendant, David Zilkha, has brought
multiple postjudgment appeals in this exceedingly bitter
and protracted dissolution litigation. His present appeal
arises out of this court’s judgment, holding that the trial
court was without authority to disburse funds owned
by the defendant that were being held in a court-ordered
escrow account. See Zilkha v. Zilkha, 159 Conn. App.
167, 175, 123 A.3d 439 (2015).1 On appeal, the defendant
claims that by denying his ‘‘motion to turn over—post-
judgment,’’ the trial court disregarded an order of this
court by failing to effectuate the return of his funds to
the escrow account. We affirm the judgment of the
trial court.2
The following facts, as set forth in Zilkha, are relevant
to our resolution of the present appeal. The marriage
of the defendant and the plaintiff, Karen Zilkha, was
dissolved by the court, Abery-Wetstone, J., on May 31,
2005. Zilkha v. Zilkha, supra, 159 Conn. App. 169. On
November 14, 2008, the plaintiff filed a motion to open
and set aside the dissolution judgment in which she
alleged that during the dissolution litigation, the defen-
dant fraudulently failed to disclose a claim that he had
against his former employer. Id. At the time the plain-
tiff’s motion to open was filed, the defendant had
received $1,400,000 as part of the settlement he had
obtained from his former employer. Id. The former
employer was to make a final payment of $700,000 to
the defendant in April, 2009. Id. On April 9, 2009, the
plaintiff amended her motion to open the judgment,
requesting that the court order the defendant to place
the $700,000 settlement proceeds in escrow. Id., 169–70.
Following an April 30, 2009 hearing, the court, Shay,
J., ordered the defendant to place $250,000 of the settle-
ment proceeds in an escrow account pending the out-
come of an Oneglia hearing.3 Id., 170. Judge Shay held
an Oneglia hearing in February, 2010, and thereafter
concluded that there was more than a mere suspicion
that the defendant had committed fraud.4 Id., 170–71.
See footnote 3 of this opinion.
On September 10, 2012, the attorney for the minor
children filed a ‘‘postjudgment motion for fees and
replenishment retainers’’ to compel the parties to pay
him, the guardian ad litem, and the custody evaluator
(experts) for the services they had rendered and retain-
ers for costs to be incurred by the ongoing litigation.5
Following a hearing, and in accordance with the criteria
set forth in General Statutes §§ 46b-62 and 46b-82, Judge
Shay ordered the plaintiff and the defendant each to
pay $500 to the attorney for the minor children, $1500
to the guardian ad litem, and $500 to the custody evalua-
tor. Id., 172. The court also ordered the following pay-
ments to be made from the defendant’s funds in the
escrow account: $40,000 to the attorney for the minor
children, $62,577.95 to the guardian ad litem, $9000 to
the custody evaluator, and an additional $15,000 each
to the attorney for the minor children and to the guard-
ian ad litem as retainers for future services related to
the litigation.6 Id.
The defendant appealed from the court-ordered dis-
bursement of funds from the escrow account, claiming
that the court ‘‘lacked authority to distribute the escrow
funds because the judgment of dissolution had not been
opened.’’7 Id. He argued that the court’s ruling at the
end of the Oneglia hearing only permitted the plaintiff
to conduct limited discovery after which the court was
required to consider the plaintiff’s motion to open. Id.,
173. This court agreed with the defendant that the trial
court lacked authority to order the distribution of the
defendant’s funds in the escrow account to pay the
experts. Id., 174.
In reaching our conclusion, this court stated: ‘‘Gen-
eral Statutes § 46b-81 (a) provides in relevant part: At
the time of entering a decree . . . dissolving a marriage
. . . the Superior Court may assign to either spouse all
or any part of the estate of the other spouse. The court
can redistribute assets pursuant to a motion to open.
. . . Nevertheless, [u]ntil a motion to open has been
granted, the earlier judgment is unaffected . . . . In
this case, although the court was free to order that the
defendant pay some or all of the fees to the [experts],
it lacked the authority to direct that these payments be
made from the escrowed funds.’’ (Citations omitted;
internal quotation marks omitted.) Id., 174–75. A court
is not authorized to decide which of a party’s assets
must be used to pay a party’s share of fees. Id., 175.
‘‘[T]he court could not make orders for funds to be
disbursed from the escrow account because those funds
belonged solely to the defendant, until and unless, the
court opened the judgment and distributed the
escrowed funds, if at all.’’ Id. This court reversed the
judgment as to the order to disburse escrow funds to
the experts and vacated that portion of the order. Id.
This court made no further orders with respect to the
escrow funds that had been disbursed.8
On October 20, 2015, the defendant filed his motion
to turn over the funds and an application for order to
show cause why the plaintiff and the experts should
not be ordered to appear and show cause why the
defendant’s motion to turn over should not be granted.
The court, Nastri, J., granted the order to show cause
and ordered the plaintiff and the experts to appear.
The hearing was held before the court, Hon. Lloyd
Cutsumpas, judge trial referee, on November 3, 2016.
During the hearing, counsel for the defendant repre-
sented that after all the payments ordered by Judge
Shay had been made, the parties stipulated that the
funds remaining in the escrow account should be dis-
bursed to the plaintiff and the defendant.9 The defen-
dant did not dispute that the funds that were in the
escrow account were disbursed according to Judge
Shay’s orders and the accounting with respect to the
disbursements was proper. Counsel for the defendant
acknowledged that the fees were proper but argued
that Judge Shay would not conduct a visitation hearing
until the fees that were owed were paid. The court
summarized the issue as the defendant wanting the
court to ‘‘clawback’’ fees Judge Shay had approved and
ordered paid to the experts.
On November 10, 2016, the court issued an order
denying the defendant’s motion to turn over, stating in
part that the holding in Zilkha ‘‘clearly stated that the
[trial] court was without authority to disburse funds
from the named escrow account to the three court-
appointed experts. That portion of the order was simply
vacated by the Appellate Court. There was no remand
or further direction on what this court was to do. . . .
[E]quity does not permit the relief requested in the
[defendant’s] motion, i.e., the return of court-approved
fees paid to court-appointed experts. There is no practi-
cal relief which can be afforded to the defendant.’’ The
defendant thereafter appealed to this court.
On appeal, the defendant argues that the trial court
erred by not using its equitable powers to effectuate
the return of the funds disbursed from the escrow
account to pay the experts. The defendant contends
that the court ignored an order of this court in Zilka
providing for recoupment of his funds. The flaw in the
defendant’s argument is that this court did not order
the trial court to recoup or effectuate the return of his
funds in the escrow account that were used to pay the
three experts who had rendered services to the parties’
children and the trial court. The rescript merely stated
that the order to pay was to be vacated, nothing more.
See Zilkha v. Zilkha, supra, 159 Conn. App. 180.
‘‘Well established principles govern further proceed-
ings after a remand by this court. In carrying out a
mandate of this court, the trial court is limited to the
specific direction of the mandate as interpreted in light
of the opinion. . . . [T]his is the guiding principle that
the trial court must observe. . . . The trial court should
examine the mandate and the opinion of the reviewing
court and proceed in conformity with the views
expressed therein. . . . These principles apply to crim-
inal as well as to civil proceedings. . . . The trial court
cannot adjudicate rights and duties not within the scope
of the remand. . . . It is the duty of the trial court
on remand to comply strictly with the mandate of the
appellate court according to its true intent and meaning.
No judgment other than that directed or permitted by
the reviewing court may be rendered . . . .’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Brundage, 320 Conn. 740, 747–48,
135 A.3d 697 (2016). Significantly, in Zilkha, this court
ordered only that the trial court’s order to disburse
funds from the escrow account be vacated. This court
did not order a remand for any purpose. We, therefore,
disagree with the defendant’s claim that the trial judge
ignored the precedent of an appellate court when he
denied the motion to turn over.
The defendant also argues that the court should have
used its equitable powers to order the experts to return
the funds from the escrow account that were used to
compensate them for services that they had rendered.
Despite his argument, the defendant has not cited any
legal or equitable authority supporting it, and we know
of none. Notably, the defendant does not contend that
the experts were not entitled to be paid for their ser-
vices, nor does he argue that the court-ordered fees
were improper in amount. In Zilkha, this court deter-
mined that Judge Shay improperly ordered the disburse-
ment of the escrow funds without first opening the
judgment of dissolution in violation of § 46b-81 (a), but
this court did not conclude that Judge Shay improperly
ordered the experts to be paid. See Zilkha v. Zilkha,
supra, 159 Conn. App. 175.
Although the defendant asked the trial court to use
its equitable powers to effectuate the return of the funds
that had been in the escrow account, on appeal, he has
failed to cite any equitable basis requiring the experts
to return the funds that Judge Shay found they were
owed. The record discloses that after the Oneglia hear-
ing, Judge Shay determined that there was more than
a mere suspicion that the defendant had committed
fraud. Thereafter, the attorney for the minor children
filed a motion ‘‘for fees and retainers in order to compel
the payment of present and future fees for himself,
as well as for the guardian ad litem and the custody
evaluator.’’ (Emphasis added.) Id., 171. We are
reminded of the premise of equity. ‘‘One who seeks
equity must also do equity and expect that equity will
be done for all.’’ LaCroix v. LaCroix, 189 Conn. 685,
689, 457 A.2d 1076 (1983). Judge Shay ordered the defen-
dant to pay the debt he owed the experts, which he
was unwilling do by himself. For the sake of argument,
even if the court had granted the defendant’s motion
to turn over, the defendant still would be obligated
pursuant to court order to pay the fees he owed the
experts.
We do not minimize the error Judge Shay made in
ordering the experts to be paid with the defendant’s
funds in the escrow account prior to opening the judg-
ment of dissolution. As the court, however, stated in
its order denying the defendant’s motion to turn over,
the defendant’s success in his appeal in Zilkha ‘‘clarified
somewhat the law regarding court established escrow
accounts,’’ but equity does not permit the return of the
court-approved fees.
For the foregoing reasons, we agree with the court
that that it could not afford the defendant any relief–
there is no way to recoup funds that properly were
awarded and paid for services rendered by the experts.
More importantly, in Zilkha, this court did not remand
the case with direction that the funds be returned to
the escrow account. The court, therefore, properly
denied the defendant’s motion to turn over.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In Zilkha, the defendant appealed, in part, from the judgment of the trial
court, Shay, J., claiming that the court improperly dispersed ‘‘escrow money
held from settlement funds received [by the defendant] from his former
employer to pay postjudgment fees to the guardian ad litem, the attorney
for the minor children, and a custody evaluator.’’ Zilkha v. Zilkha, supra,
159 Conn. App. 168–69.
2
The plaintiff, Karen Zilkha, failed to file an appellee’s brief as ordered
by this court. This court, therefore, ordered the appeal to be considered on
the basis of the defendant’s brief and the record as defined by Practice
Book § 60-4.
3
‘‘Under Oneglia v. Oneglia, 14 Conn. App. 267, 269, 540 A.2d 713 (1988),
a party seeking to open a judgment of dissolution on the basis of allegations
of fraud does not have a right to conduct discovery based only on its filing
of a motion to open. Instead, a hearing is held to determine if the party can
substantiate the allegations of fraud beyond a mere suspicion. . . . If so,
the court opens the judgment for the limited purpose of discovery, and
later issues an ultimate decision on the postjudgment motion to open after
discovery is completed and another hearing is held.’’ (Citation omitted.)
Zilkha v. Zilkha, supra, 159 Conn. App. 170 n.4.
4
The record reflects that the plaintiff withdrew her motion to open the
judgment subsequent to Zilkha.
5
The ongoing dispute between the parties concerns custody and visitation.
6
At the present time, there are more than 850 entries on the trial court
docket sheet for this matter.
7
The defendant did not challenge the court’s order that he pay the experts
or the amount of the fees that the court ordered him to pay.
8
The rescript stated: ‘‘The judgment is reversed only as to the disburse-
ment of funds from the escrow account and that portion of the order is
vacated. The judgment is affirmed in all other respects.’’ Zilkha v. Zilkha,
supra, 159 Conn. App. 180.
9
The court summarized the stipulation as follows: ‘‘The parties stipulate
that $44,566 shall be paid to the plaintiff and the balance of $42,657 shall
be paid to [counsel for the defendant trustee].’’ The disbursement to the
plaintiff was for a child support arrearage.