Adamo v. Emilio Adamo., No. 29645.

• Decision Date: 03 August 2010
• Docket Number: No. 29645.
• Citation: 123 Conn.App. 38,1 A.3d 221
• Court: Connecticut Court of Appeals
• Parties: Lee ADAMO v. Emilio ADAMO.

123 Conn.App. 38

1 A.3d 221

Lee ADAMO

v.Emilio ADAMO.

No. 29645.

Appellate Court of Connecticut.

Argued Jan. 12, 2010.

Decided Aug. 3, 2010.

James H. Lee, Fairfield, for the appellant (defendant).

George J. Markley, Fairfield, for the appellee (plaintiff).

GRUENDEL, ALVORD and WEST, Js.

WEST, J.

In this marital dissolution matter, the defendant, Emilio Adamo, appeals from the trial court's rulings on various postjudgment motions filed by both him and the plaintiff, Lee Adamo. The defendant claims that the court (1) applied an incorrect legal standard in determining the extent of the plaintiff's liability for damage and deferred maintenance to the marital home during her court-ordered exclusive possession, (2) improperly denied his motion for contempt and (3) improperly granted the plaintiff's motion for attorney's fees. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history provide the necessary backdrop for our resolution of the defendant's appeal. The parties were married on May 7, 1994. Prior to the marriage, the defendant owned three pieces of real estate. He owned a commercial property on Magee Avenue in Stamford, a residence in Westport and another residence in Amagansett, New York. During their marriage, the parties resided in the Westport residence. On November 26, 2001, the defendant vacated that residence. On June 4, 2003, the plaintiff commenced the dissolution action. The plaintiff filed, on August 5, 2003, a motion for exclusive use and possession of the Westport residence pendente lite. The court granted that motion on August 18, 2003.

On July 7, 2005, the court rendered judgment dissolving the parties' marriage by way of a memorandum of decision. The parties sought an order of property distribution on the basis of the appreciation of the three pieces of real estate that the defendant had owned prior to the marriage. After the court considered the plaintiff's age, lack of assets, lack of vocational skills, health, estate, liabilities and needs in comparison with those of the defendant, it awarded her a lump sum payment of $374,705.24, equal to 35 percent of the appreciation of the properties. ¹ The court ordered the defendant to pay the plaintiff by October 7, 2005. The court also ordered that until the lump sum payment was paid in full, the plaintiff would continue to reside in the Westport residence and that the defendant would continue to pay the mortgage and taxes due on the residence. It further ordered that the plaintiff immediately would vacate the residence when the lump sum was paid in full. Also, the court incorporated by reference into the judgment the parties' November 16, 2004 stipulation concerning personal property.

On July 20, 2005, the plaintiff filed a motion for reconsideration in which she sought, inter alia, a recalculation of her lump sum payment, alleging that the court miscalculated the appreciation of the Westport residence. By memorandum of decision filed March 2, 2006, the court found that it had miscalculated the appreciation of the Westport residence and that the correct amount that the residence had appreciated was $635,000. Therefore, it ordered a recalculated lump sum payment to the plaintiff in the amount of $562,450. The plaintiff also requested that the court reconsider its order for the payment of the lump sum because it did not afford her any security to collect and gave her no funds in order to relocate from the Westport residence. The court concluded that, in the original order, it should have provided the plaintiff with an advance of moneys from the lump sum payment in order to assist in her relocating from the Westport residence. As a result, the court ordered the defendant to deposit $562,450, the entire lump sum payment, with a third party escrow agent mutually agreeable to both parties on or before March 24, 2006. The court further ordered that the plaintiff could draw money from the account for a down payment on a new residence and that upon receipt of the total funds in escrow, the plaintiff would have thirty days to relocate from the Westport residence.

Subsequent to the revised financial orders, the parties filed several postjudgment motions, their resolution forming the basis of this appeal. On May 17, 2006, the plaintiff filed a motion seeking reimbursement for the attorney's fees she incurred pursuing her motion to reconsider the original financial orders. Then, on June 20, 2006, the plaintiff filed a motion seeking postjudgment interest pursuant to General Statutes § 37-1 on the revised financial orders from the date of the dissolution judgment. On July 3, 2006, the defendant filed a motion for contempt, alleging the plaintiff's wilful refusal to comply with the parties' stipulation concerning the division of their personalty that was incorporated into the dissolution judgment. On July 11, 2006, the parties entered into a stipulated order so as to resolve the remaining issues concerning the disbursement of the parties' personalty. That stipulated order provided that it represented the complete, final and satisfactory disposition of all personalty. On November 2, 2007, the defendant filed a motion for contempt for the plaintiff's wilful failure to comply with the stipulated order.

On July 10, 2006, the defendant because of the previous motion filed a motion for reimbursement for damages caused and maintenance deferred by the plaintiff while she resided at the Westport residence pursuant to the dissolution judgment. ² In that motion, the defendant requested that the court order that $100,000 of the lump sum payment be retained in escrow in order that funds would be available for the plaintiff to compensate the defendant for the alleged damages and deferred maintenance. Subsequently, the court ordered $50,000 to remain in escrow. On July 20, 2007, the defendant filed a motion seeking the disbursement of the funds in escrow in order to compensate him for the damages and deferred maintenance alleged in his July 10, 2006 motion. See footnote 2 of this opinion. Next, on September 27, 2007, the plaintiff filed a motion seeking attorney's fees incurred in responding to the defendant's various motions filed subsequent to the court's entering the revised financial orders.

The court held hearings on those motions on January 25 and 29, 2008, during which testimony was heard and exhibits were entered into evidence. On January 29, 2008, the court ruled from the bench and issued written orders on the motions. The court denied the plaintiff's May 17, 2006 motion for attorney's fees incurred in pursuing her motion to reconsider the original financial orders. In response to the plaintiff's June 20, 2006 motion for postjudgment interest on the revised financial orders, the court declined to order interest dating back to the dissolution judgment. The court, however, ordered statutory interest only on that portion of the $50,000 that had been held in escrow that eventually was paid to the plaintiff. Next, finding that the defendant had failed to carry his burden of proof, the court denied his July 3, 2006 and November 2, 2007 motions for contempt concerning the return of his personalty. The court, however, granted the plaintiff's motion for attorney's fees and ordered the defendant to make a $10,000 contribution toward the plaintiff's counsel fees. Last, the court ordered $4427 to be deducted from the escrow and paid to the defendant for the damages for which, the court determined, the defendant had proven the plaintiff was liable, with the balance, plus interest, to be disbursed to the plaintiff. ³ We address each of the defendant's claims on appeal in turn. Further facts will be set forth as necessary.

I

The defendant first claims that the court applied an incorrect legal standard in determining the extent of the plaintiff's liability for damage and deferred maintenance to the marital home during her court-ordered exclusive possession. We disagree.

The following additional facts aid in our resolution of the defendant's claim. The court, in its January 29, 2008 written order, concluded that the plaintiff had a duty not to wilfully damage the property. It also found that there was normal wear and tear that had occurred during the marriage that was not the responsibility of the plaintiff. The court addressed in its oral ruling the defendant's motions regarding the alleged damage and deferred maintenance to the Westport residence but did not state the legal standard on which it determined the plaintiff's liability. The court, however, found that the plaintiff was responsible for $4427 of damage that had occurred during her exclusive possession of the Westport residence. ⁴ It ordered that amount deducted from the escrow account with the remainder, plus interest, to be paid to the plaintiff. On February 15, 2008, the defendant timely filed this appeal. On March 24, 2008, the defendant filed a motion for articulation in which he requested, among other things, that the court articulate what legal standard it used to determine the plaintiff's liability. The court granted the motion and, on May 9, 2008, articulated that it “looked to housing law, at [General Statutes] § 47a-24, as instructive for damages beyond reasonable wear and tear.” On September 25, 2008, the defendant filed, with this court, a motion for permission to file a late motion for further articulation with the trial court, in which he noted that “the pertinence of [ § 47a-11] is not readily apparent” This court granted that motion on December 10, 2008. On January 7, 2009, the trial court articulated that its previous citation to § 47a-24 was an inadvertent scrivener's error. It went on to state that the court “looked for guidance at housing law, specifically, the case law emanating from [General Statutes] § 47a-11, the statute on tenant's responsibilities and landlord's actions for the recovery of damages, as instructive...