Argued March 10, 2015
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant filed a cross complaint; thereafter, the matter was tried to the court, Frankel, J.; judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; subsequently, the court, Hon. Howard T. Owens, Jr., judge trial referee, denied the plaintiff's motion for contempt, and the plaintiff appealed to this court.
The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the trial court denying her postjudgment motion for contempt. Pursuant to a separation agreement of the parties that had been incorporated into the dissolution judgment, the defendant was obligated to pay the outstanding real estate taxes on the former marital residence as of November 9, 2010, the date of the dissolution judgment. The plaintiff claimed that the defendant had failed to pay the full amount of the real estate taxes and that the trial court's failure to enforce that provision of the separation agreement amounted to an impermissible modification of a nonmodifiable property distribution. Although the defendant had made a payment to the town of Stratford in November, 2010, the plaintiff alleged that there was a balance due and owing for outstanding real estate taxes in the amount of $6478.81, plus interest to date. Held that the trial court did not abuse its discretion in denying the plaintiff's motion for contempt, the defendant having complied with the separation agreement: pursuant to the clear and unambiguous language of the separation agreement, the defendant was obligated to pay the outstanding real estate taxes on the former marital residence as of the date of the dissolution judgment and the plaintiff was obligated to pay the taxes, assessments, insurance and utilities thereafter because she had been awarded the exclusive use and possession of the former marital residence, and given that the defendant had paid all taxes due and payable through December 31, 2010, and that the town tax collector had testified that no outstanding taxes were due and owing as of the date of the defendant's payment, the taxes were current at that time; accordingly, contrary to the plaintiff's claim, the trial court's denial of the motion for contempt did not impermissibly modify a nonmodifiable property distribution.
Christopher DeMarco, for the appellant (plaintiff).
Thomas J. Weihing, with whom, on the brief, was Dana P. Lonergan, for the appellee (defendant).
DiPentima, C. J., and Alvord and Bishop, Js.
[157 Conn.App. 813] The plaintiff, Eliana Nassra, appeals from the trial court's denial of her postjudgment motion for contempt, in which she claimed that the defendant, George A. Nassra, wilfully failed to comply with a provision of the separation agreement that had been incorporated into their dissolution judgment. On appeal, the plaintiff claims that the court's failure to enforce the defendant's obligation to pay " the full amount" of real estate taxes on the former marital property impermissibly modified a nonmodifiable property distribution. We disagree and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are relevant to this appeal. The plaintiff and the defendant were married on July 4, 1993, in Tripoli, Lebanon. On November 9, 2010, the court, Frankel, J., dissolved the marriage and incorporated the terms of the parties' separation agreement and parental responsibility plan for their two minor children into the dissolution judgment. See Nassra v. Nassra, 139 Conn.App. 661, 663, 56 A.3d 970 (2012). Paragraph 6.7 of the separation agreement, which is the provision at issue in this appeal, provides in relevant part: " The [defendant] is the owner of a [life insurance policy] with a cash surrender value of $67,995.53. The following [obligation] shall be paid out of the cash surrender value . . . the sum of . . . $30,286 to the Town of Stratford [town] for outstanding real estate taxes on the Marital Residence. . . ."
On November 29, 2010, the defendant paid the town $23,814.73, which represented payment of taxes in full [157 Conn.App. 814] for the 2008 grand list year and payment of taxes for the first half of the 2009 grand list year. The next payment of taxes, due in January, 2011, would be for the second half of the 2009 grand list year. The January, 2011 payment was not timely made. On January 19, 2011, the plaintiff filed a postjudgment motion for contempt, claiming, inter alia, that " there is a balance due and owing for outstanding real estate taxes in the amount of $6478.81, plus interest to date" and that the defendant " has willfully and intentionally violated the terms of the Separation Agreement because [he] has failed to pay the amount due and owing to the [town] as set forth in the Agreement."
The court did not rule on that motion because, at a hearing scheduled on February 24, 2011, the parties advised the court that the issue of the real estate taxes had been resolved. As set forth in a letter from the plaintiff's counsel to the defendant's counsel dated February 18, 2011, the parties had discussed and agreed that if there was a zero balance due on the 2010 property taxes, the extra amount set aside was to be transferred to Dr. David Israel to be applied to his " long overdue bill" for counseling services provided to the parties' children. The defendant's counsel subsequently mailed a trustee's check in the amount of $7494.20 to Dr. Israel.
On October 5, 2012, the plaintiff filed another postjudgment motion for contempt that again claimed that [157 Conn.App. 815] the defendant wilfully violated paragraph 6.7 of the separation agreement by failing to pay the outstanding real estate taxes on the former marital residence. In that motion, the plaintiff sought " an order of willful contempt" and additionally sought " the defendant's incarceration until such time as all sums due and payable under Paragraph 6.7 have been paid to the Town of Stratford." A hearing was held on August 22, 2013, at which time the parties submitted exhibits and presented the testimony of witnesses, including the town's tax collector. The parties filed posthearing briefs in September, 2013.
The court issued its memorandum of decision on January 9, 2014. After referencing the applicable sections of the parties' separation agreement, the court quoted from the transcript of the dissolution proceeding. In the dissolution proceeding on November 9, 2010, the plaintiff affirmed that she was to have exclusive use and occupancy of the former marital residence and was to " be responsible for the taxes, assessments, insurance and utilities." She further affirmed that the defendant was to make a payment to the town " to cover the outstanding real estate taxes that are due and owing" on the former marital residence. The court noted in its decision the amount the defendant paid the town, the fact that a motion for contempt on this same issue previously was filed by the plaintiff, and the parties' representation to the court on February 24, 2011, that the real estate tax issue had been resolved. The court further stated that the tax collector's testimony, as acknowledged by the plaintiff, confirmed that the defendant could not have paid any additional real estate taxes when he made the November 29, 2010 payment because the next tax bill would not be generated until January, 2011. On the basis of the foregoing, the court determined that the language of paragraph 6.7 was clear and unambiguous with respect to the defendant's obligation [157 Conn.App. 816] to pay " outstanding real ...