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Downey v. Downey

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

August 16, 2016

Robert Downey
v.
Catherine Downey

          MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT (#127) AND PLAINTIFF'S MOTION FOR CONTEMPT

          Robert Nastri, Jr., Judges.

         The defendant's July 1, 2016 motion for contempt (#127) and the plaintiff's August 4, 2016 motion for contempt came before the court on August 8, 2016.[1] The plaintiff and defendant appeared and testified; the plaintiff was represented by counsel. The defendant claims the plaintiff is in contempt because on June 20, 2016 he stopped paying $50 per week toward an arrearage as required by their July 26, 2013 Separation Agreement. The plaintiff responded that when given appropriate credit for various items, he overpaid the arrearage by $1.46.

         The parties' July 26, 2013 Separation Agreement (#119) incorporated into the judgment of the court on the same day, required the plaintiff to pay the defendant $235 per week as alimony, plus $50 per week toward an arrearage. The plaintiff stopped paying $50 per week on June 20, 2016. The plaintiff argued he is entitled to a credit for half the 2012 state and federal tax refund, the cost of renting a truck to clean out the marital home after the defendant left it, the cost of certified letters notifying the defendant she was required to vacate the marital home and a Notice to Quit, as well as a tax preparation fee. Based on the plaintiff's calculations, when those credits are applied to the $7, 900 he paid toward the arrearage since the date of dissolution, he overpaid by $1.46.[2]

         The plaintiff seeks to hold the defendant in contempt for failing to vacate the family home in a timely manner as required by section four of their separation agreement. He claims he incurred expenses as a result of her failure to leave the home after the defendant was notified of an imminent foreclosure. He also asserts the defendant is in contempt for failing to notify him of the sale of tools and machinery and for failing to deduct half the proceeds of the sale from his arrearage obligation. He acknowledged he retrieved his hand tools from the house but claims there was $8, 000 worth of machinery in the basement. The plaintiff is seeking half the alleged value of the machinery as a credit toward his future arrearage obligations to the defendant.

         There are three sections of the separation agreement relevant to the parties' current dispute. First, the agreement provided: " the wife shall keep all the items in the house with the exception of the Husband's hand tools . . . The parties agree to sell all the Husband's tools and all the machinery with the exception of his hand tools, and all profits will be split with the Husband[']s share applied toward his alimony arrears." July 26, 2013 Separation Agreement at 2, § 3. The agreement also provided that the defendant " shall remain in the marital home until a short sale foreclosure is commenced. Husband shall immediately notify wife of any foreclosure filing in order for her to vacate the home in a timely manner." Id. at 2-3, § 4. Finally, the agreement provided " The Parties filed a joint tax return for the 2012 tax year; they agree to split any refund equally. The Wife shall keep the Husband's share of the refund and she has applied it as a credit to his alimony arrears." Id. at 3, § 6.

         The agreement makes it clear that at the time of their divorce, the state and federal tax returns had already been filed. It is also abundantly clear that when the parties entered into their agreement, the tax refunds had already been applied to the plaintiff's arrearage. The plaintiff testified his lawyer told him he would get a $79 credit for the tax preparation fee. At the time of their agreement the tax preparation fee had already been incurred but the separation agreement is silent regarding that fee.

         The plaintiff testified he notified the defendant in June 2014 that she had to vacate the marital home so the bank could take possession of it. The plaintiff was not served with the foreclosure lawsuit until July 8, 2014. Plaintiff's Exhibit 1. He sent the defendant a certified letter notifying her of that fact on July 9, 2014. Id. The defendant received the notice on July 11, 2014. Id. The plaintiff served the defendant with a Notice to Quit dated August 18, 2014. Plaintiff's Exhibit 3. The defendant testified she left the marital home by August 19, 2014, shortly after she received the Notice to Quit. According to the plaintiff, he had to rent a box truck to clean out the marital home after the defendant left. He claimed the defendant left behind a TV, futon and washing machine, among other items.

         The court finds the defendant left the marital home in a timely manner. The period from July 11, 2014 to August 19, 2014 was not unreasonably long. Moreover, and most importantly, the plaintiff offered no explanation for his two-year delay in asserting this claim. In light of such a delay, the court declines to address the issue.

         The plaintiff filed this action for the dissolution of his marriage in September 2012. It defies credulity to believe the plaintiff would allow $8, 000 worth of machinery to go unclaimed for nearly four years. It is also difficult to believe that when he cleaned out the marital home in anticipation of the foreclosure two years ago and saw the machinery was not there, he would not have addressed the issue then.

         The defendant testified she sold some of the machinery for $1, 000 and provided receipts to Attorney Cummings, the plaintiff's attorney at the time of the divorce. There is no evidence she applied the plaintiff's share of the machinery sale proceeds--$500--toward his arrearage. The plaintiff filed a motion for contempt on November 15, 2013 seeking his hand tools and " receipts of sold mach[in]ery." (#123.) That motion was denied with prejudice, Murphy, J., on December 16, 2013. The plaintiff is precluded from pursuing further information about the sale of the machinery.

         The motions for contempt are denied. " Contempt is a disobedience to the rules and order of a court . . ." (Internal quotation marks omitted.) DPF Financial Holdings, LLC v. Lyons, 129 Conn.App. 380, 385, 21 A.3d 834 (2011). The court cannot find by clear and convincing evidence that either party wilfully violated a clear and unambiguous court order. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887, 897 (2015).

         The court has remedial discretion to make whole a party who has been harmed by a violation of a court order, even a violation that was not willful. " [A] trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988); see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387 (1988). In light of the defendant's testimony regarding her sale of some of the machinery, the court finds the plaintiff is entitled to a credit toward his arrearage of $500. The court finds the arrearage after the credit to be $530. The plaintiff is ordered to pay $50 per week toward the arrearage starting with his next alimony payment.

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