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Nappo v. Nappo

Court of Appeals of Connecticut

March 19, 2019

LUCILLE NAPPO
v.
WILLIAM NAPPO

          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 ...


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