Argued
December 4, 2018
Procedural
History
Action
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Hartford and tried to the court, Gruendel,
J.; judgment dissolving the marriage and granting
certain other relief; thereafter, the court, Albis,
J., granted in part the plaintiff's amended
motion for contempt, granted the plaintiff's amended
motion for modification of alimony and issued certain orders,
and the defendant appealed to this court.
William Nappo, self-represented, the appellant (defendant).
Lavine, Keller and Bishop, Js.
OPINION
KELLER, J.
The
self-represented defendant, William Nappo, appeals from the
judgment of the trial court granting postdissolution motions
filed by the plaintiff, Lucille Nappo, for modification of
alimony and for con-tempt.[1] The defendant claims that the court
erred in (1) granting the plaintiff's motion for
modification, thereby increasing his monthly alimony
payments, [2] and (2) imposing certain sanctions and
fashioning additional orders directed to the defendant upon
finding him in contempt and/or not in compliance with several
court orders. We affirm the judgment of the court.
The
following facts and procedural history are relevant to this
appeal. The parties' marriage endured for forty-seven
years. After a contested trial, a judgment of dissolution was
entered on May 6, 2004. Since the date of the judgment of
dissolution, postjudgment proceedings have continued
unabated.
At the
time of the judgment, both of the parties were sixty-five
years old with limited incomes. The dissolution court,
however, noted that during the course of the marriage, the
defendant had enjoyed significant business success and a
lavish lifestyle and had provided generously for his four
children without providing for the plaintiff's future. It
concluded that it was ‘‘satisfied that [the
defendant] can again make a good or even extraordinary
income.[3] Although he is sixty-five, his health is
good, his experience is broad, and his ability to understand,
create, and manage business opportunities is
brilliant.'' (Footnote added.) The alimony order
provided in pertinent part: ‘‘The [defendant]
shall pay the [plaintiff] as alimony [one] half of his
monthly benefit from his Mobil [Corporation] pension
immediately and so much of his social security benefit as
will equalize the parties' income, taking into account
the $149 per week that the [plaintiff] receives in social
security. As additional alimony, the [defendant] shall pay
the [plaintiff] $1 per year and the [plaintiff's] medical
insurance premium until the death of either of them or the
[plaintiff's] remarriage, which shall be nonmodifiable as
to term. Each party shall notify the other of any changes in
income or employment within two weeks of the same occurring.
The [defendant] shall, by April 15th of each year, provide
the [plaintiff] with all tax returns, including 1099s and
K-1s, for himself, any corporation in which he holds an
interest of more than [15] percent . . . and any partnership,
sole proprietorship, or other entity in which he holds an
interest or from which he derives any financial benefit
whatsoever.''[4]
On
January 18, 2006, the alimony order was modified by agreement
of the parties, and the defendant was required to pay alimony
at the rate of $170 per week, payable in biweekly payments of
$340. The alimony order was modified again on February 20,
2007, which effectively reinstated the original alimony order
contained in the judgment of dissolution. As the language of
that judgment indicates, the calculation of the alimony
payment due from the defendant to the plaintiff requires
periodic recalculation as changes occur in the parties'
respective monthly social security benefits. Although a later
order was entered on January 13, 2012, it did not change the
operable alimony order but required the parties to attend a
status conference to discuss further payments due under the
2004 dissolution judgment. The status conference was held on
February 9, 2012, and the parties reached an agreement about
the proper computation of alimony due under the 2004
dissolution judgment as reinstated in the February 20, 2007
order. Under that agreement, the defendant began to pay
monthly alimony in the amount of $609.15.[5]
The
judgment of dissolution also ordered that the parties equally
divide the proceeds of a bond in the amount of $375, 000 that
the defendant had posted in conjunction with starting his own
business after he retired from Mobil Corporation. The
defendant was ordered to seek ‘‘to be repaid for
the bond and to divide the proceeds'' with the
plaintiff.
On June
15, 2015, the plaintiff filed a motion for contempt, which
she amended on February 23, 2017 (amended motion for
contempt), alleging that the defendant had failed: (1) to
provide her with proof of tax returns and 1099, K-1, and W-2
forms as ordered by the court; (2) to pay her one half of the
value of the bond, or to comply with a court order of
November 16, 2009, relative to proof of his efforts to obtain
release of the bond; (3) to pay alimony on a timely basis;
(4) to provide verification of the amounts that the federal
government was deducting from his income; (5) to disclose
information concerning his American Express credit card on
his financial affidavit as ordered by the court on December
9, 2015; and (6) to produce a copy of his passport, also
ordered by the court on December 9, 2015.
On June
15, 2015, the plaintiff also filed a motion for modification
of alimony, which she amended on February 23, 2017 (amended
motion for modification), claiming a substantial change of
circumstances based on the financial situations of the
parties. On January 27, 2016, the plaintiff filed another
motion for contempt (second motion for contempt), alleging
that the defendant had failed to provide a true and accurate
copy of his credit report as ordered by the court on January
15, 2016.[6] On February 3, 2016, the defendant filed a
motion for attorney's fees for the defense of the
plaintiff's pending motions. On February 5, 2016, the
plaintiff filed a motion for attorney's fees incurred in
pursuing her contempt motions and her motion for
modification.[7]
On June
15, 2017, after three days of hearings, the court rendered a
decision on the February 23, 2017 amended motion for contempt
and the January 27, 2016 second motion for contempt regarding
the credit report, as well as the February 23, 2017 amended
motion for modification of alimony. The court noted that
during the course of the hearing, the plaintiff had
determined that she was no longer pursuing certain claims she
had alleged in her amended motion for contempt, and it issued
the following findings and orders: ‘‘As to the
plaintiff's claim that the defendant failed to make all
alimony payments in a timely manner under the terms of the
applicable order, the court finds that some payments were
made late but that the defendant generally made the payments
within a relatively short time after they were due. As to
this ground, the court finds that the plaintiff has not
proven by clear and convincing evidence that the defendant
wilfully violated the court order, and it does not find the
defendant in contempt. No remedial orders are entered with
respect to this claim.
‘‘With
respect to the plaintiff's claim that her alimony
payments were improperly reduced by bank wire charges, the
court finds that the defendant made [twenty-five] monthly
payments during the period between November, 2013, and
February, 2016, by wire transfer. Each of those payments by
the defendant via wire transfer was reduced by a wire
transfer fee charged by the defendant's sending bank and
by a further fee imposed by the plaintiff's receiving
bank. As a result of these charges, the amount actually
credited to the plaintiff's bank account for each of the
months in question was less than the monthly alimony payment
of $609.15 due under the applicable order.
‘‘The
payment of the alimony by wire transfer was not a requirement
of the judgment but, rather, was agreed to by the parties
informally. Nevertheless, the order required the defendant to
pay $609.15 to the plaintiff. Even though the parties may
have agreed to the wire transfer method, it was incumbent
upon the defendant to pay his bank's wire transfer fee
rather than have it deducted from the amount due to the
plaintiff. The court finds that during the relevant period a
total of $391.50 in wire transfer fees charged by the
defendant's bank should have been paid by the defendant
and not passed on to the plaintiff. However, the court
concludes that the defendant is not responsible for the fees
charged by the plaintiff's chosen banking institution to
receive the funds which she agreed to have paid to her in
that manner.
‘‘As
to this ground, the court finds that the plaintiff has not
proven by clear and convincing evidence that the defendant
wilfully violated the court order. However, the court finds
that there was a violation of the order insofar as the
defendant did not pay the full amount of alimony due from
him, and the court enters the remedial orders below to make
the plaintiff whole and prevent the defendant's [wire]
transfer charges from being passed on to her in the
future.''
As to
the alleged failure of the defendant to transfer to the
plaintiff one half of the $375, 000 bond pursuant to the 2004
dissolution judgment, the court found that
‘‘[t]he bond funds had not yet been recovered by
the defendant or paid to the plaintiff on November 16, 2009,
when the court ordered the defendant to provide the plaintiff
with a written report every six months thereafter on the
status of the bond and his efforts to comply with the order
to share the proceeds of it with her. . . .
‘‘As
to the first of [the plaintiff's] claims, the court finds
that the defendant has not yet obtained the bond funds from
the bonding company due to certain legal impediments that
have arisen. The cash collateral for the bond in question is
held by International Fidelity Insurance Company (bonding
company). The bonding company was not required to release the
funds which were posted to secure the issuance of the bond
until the expiration of the statute of limitations on the
liabilities which the bond was intended to protect against, a
period which apparently expired on or about April 16, 2016.
Since the passage of that date, the release of the funds has
been further delayed due to a technical error in the
statement, in a related bankruptcy proceeding, of the legal
name of the entity controlled by the defendant which posted
the collateral funds with the bonding company and to which
the refund of the funds is payable. As to this claim of
contempt, the court finds that the plaintiff has not proven
by clear and convincing evidence that the defendant has
wilfully violated the order to pay [one] half of the proceeds
of the bond to her. However, the order has not been complied
with, and the court enters remedial orders intended to secure
such compliance.
‘‘As
to the second claim, the court finds that the plaintiff has
proven the following elements of contempt by clear and
convincing evidence. The defendant had notice of the
court's order of November 16, 2009, requiring him to
provide the plaintiff with a written report every six months
on the status of the bond and his efforts to comply with the
order to share the proceeds of it with her. . . . His
noncompliance was wilful. The court therefore finds the
defendant in contempt of the order . . . . The award to the
plaintiff of attorney's fees and travel expenses as
hereinafter set forth is attributable, in part, to this
finding of contempt.''
The
court then found the defendant in contempt for failing to
provide the plaintiff with copies of his annual income tax
returns, 1099 forms and K-1 forms by April 15 of each
calendar year, as well as for failing to provide the
plaintiff with a copy of his passport. The court noted that
its award to the plaintiff of attorney's fees and travel
expenses is also attributable, in part, to these additional
findings of contempt. The court did not find the defendant in
contempt relative to the plaintiff's claims that he
failed to disclose an American Express credit card or that he
failed to provide her with a credit report.
As part
of its ruling on the February 23, 2017 amended motion for
contempt, the court ordered the defendant to pay to the
plaintiff within thirty days the sum of $391.50 in
reimbursement of the defendant's wire transfer charges
that had reduced the amount of alimony the plaintiff
received. It also ordered the defendant to provide the
plaintiff's attorney with a detailed monthly written
statement of his efforts to collect the cash collateral held
by the bonding company until he has paid one half of the bond
proceeds as required by the 2004 dissolution judgment. The
court also ordered that ‘‘[i]f for any reason the
defendant has not paid the plaintiff in full for her [one]
half of the bond proceeds . . . on or before October 31,
2017, then the unpaid portion due to the plaintiff shall
accrue interest at the rate of [5 percent] . . . per annum
commencing on November 1, 2017, and continuing until the
unpaid portion plus accrued interest has been paid in full,
with any partial payments after November 1, 2017, to be
applied first to interest and then to principal.''
Finally, the court ordered the defendant to pay the plaintiff
within thirty days the sum of $2000 in attorney's fees
plus $1000 toward the plaintiff's travel expenses to
attend the hearing.[8]
With
respect to the amended motion for modification of alimony,
the court reviewed the financial affidavits filed by each
party at the time of the entry of the February 20, 2007 order
and found by a preponderance of the evidence that the
defendant's circumstances had improved substantially
since that date in two ways. First, the defendant had
remarried, and his current wife provides the bulk of his
financial support. Second, since February 20, 2007, there had
been a significant increase in the defendant's net worth.
His assets had increased in value by over $400, 000, and his
liabilities had decreased by almost three million, from $5,
371, 775 to $2, 393.818. The court noted that it found the
defendant ‘‘to be significantly lacking in
credibility, '' particularly as to the nature of the
financial support that his current wife provides him. The
defendant claimed that sums contributed to his legal expenses
and deposited into his bank account were loans from his
current wife, but the court, noting the lack of any
promissory note or evidence of any repayment, found that they
were gifts, and that such gifts were continuing regularly. In
addition, the court found that the defendant's current
wife paid for the bulk of the couple's expenses,
including the mortgage, taxes and other expenses for two
condominium units, one in Connecticut and one in South
Carolina; country club memberships; and travel and dining
out, beyond that which the defendant could afford on his
reported income.
The
court found that the defendant's net weekly income was
therefore comprised of four elements: his reported weekly
income of $586 on his financial affidavit, the average weekly
amount he has received from his current wife for ongoing
legal fees in the amount of $263, the average weekly amount
of gifts of cash provided to him by his current wife for
deposit into his bank account in the amount of $90, and $254
in excess weekly expenditures for which the only payment
source in evidence is the defendant's current wife, as
the defendant's weekly expenses and liability ...