Aliano v. Aliano

• Decision Date: 18 February 2014
• Docket Number: No. 34830.,34830.
• Citation: 148 Conn.App. 267,85 A.3d 33
• Parties: Terry ALIANO v. Michael ALIANO.
• Court: Connecticut Court of Appeals

148 Conn.App. 267

85 A.3d 33

Terry ALIANO

v.Michael ALIANO.

No. 34830.

Appellate Court of Connecticut.

Argued Oct. 16, 2013.

Decided Feb. 18, 2014.

John F. Morris, Hartford, for the appellant (plaintiff).

Timothy P. Lenes, for the appellee (defendant).

DiPENTIMA, C.J., and SHELDON and FOTI, Js.

DiPENTIMA, C.J.

The plaintiff, Terry Aliano,¹ appeals from the denial of her postdissolution motion for contempt filed against the defendant, Michael Aliano. On appeal, she claims that the court improperly found that the defendant's failure to pay a lump sum financial award was not wilful noncompliance with the terms of the parties' dissolution judgment. We disagree, and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion. The parties were married on February 24, 2007. In March, 2010, the plaintiff commenced an action seeking a dissolution of the marriage. On November 2, 2011, following a bifurcated trial, the court issued two memoranda of decision; one addressing custody and access regarding the parties' minor child and one addressing the various financial issues.² The court found that the defendant was the president and chief executive officer of a number of family businesses founded by his deceased father, Ronald Aliano (decedent). The estate of the decedent was the subject of a probate dispute involving a woman who claimed to be an heir of the decedent. Nevertheless, the defendant was expected to “inherit a significant portion of the estimated $10 million estate.” The court issued a number of financial orders, including awarding alimony to the plaintiff for a limited time period and dividing the parties' property. With respect to the defendant's expected inheritance from the decedent's estate, the court ordered in paragraph 12 of its decision: “The [defendant] shall make a payment to the [plaintiff] in the amount of $100,000 within 30 days of his receiving his inheritance so long as such receipt is in excess of $250,000.”

On June 21, 2012, the plaintiff filed a motion for contempt, alleging that the defendant had wilfully failed, refused or neglected to pay her the $100,000 as required by the court's judgment. She further claimed that “[o]n March 30, 2012, the Norwich Probate Court distributed the business known as American Ambulance Service, Inc., in equal parts between [the defendant] and ... Rhonda Aliano Quinn (the [d]efendant's sister). The said distribution was the major asset of the estate valued in excess of $4,700,000.” In addition to seeking a finding of contempt and payment of the $100,000, the plaintiff requested that the court order the defendant to pay statutory interest pursuant to General Statutes § 37–3a and attorney's fees related to the prosecution of her contempt motion.³

The court held a hearing on July 16, 2012, where the plaintiff called as a witness Andrew Messier, the executor of the decedent's estate and the trustee for two of the trusts associated with the estate. Messier testified that the defendant received 50 percent of the shares of stock of an ambulance company owned by the decedent. The value of the stock received by the defendant was $2,350,000. This was the only distribution from the estate to the defendant.

The plaintiff testified that she had not received the $100,000 payment and that the defendant had not informed her of his receipt of a portion of his inheritance. The defendant testified that he had not received any cash or negotiable instruments from the decedent's estate and that a trial was pending in the Probate Court regarding all of the other assets of that estate. The defendant stated that he anticipated receiving a substantial amount of cash from the decedent's estate. During cross-examination, in response to a question about whether he had ever made an effort to communicate with the plaintiff about the inheritance issue, the defendant stated: “It's my understanding I did not have to pay that until which time I got all my inheritance, and it was cash. [My attorney] was aware I would be paying [the plaintiff] when I got the liquid assets to pay her. I don't have the money to pay her right now.” He then iterated that he had not received his total inheritance, and the portion that he had was in the form of stock.

At the conclusion of the hearing, the court stated: “This was an interesting legal argument ... but I don't think it goes to what the court's intention was in paragraph [12] of the judgment. It was the court's intent that [the defendant] would pay that sum of cash when he received cash. And the court knew that he was going to receive real estate; the court knew he was going to receive stock in a closely held corporation, but the court specifically used as the trigger point when he received in excess of $250,000, and he hasn't yet done that. So, I don't find he is in contempt. And I don't find the trigger has been pulled yet. Frankly, if he received $250,000 in negotiable securities, in marketable securities, in a publically traded company that could be sold on the open market, I would read the situation differently. I don't view he has the liquid money from his inheritance yet.... It says in excess of $250,000. That was my intent. And it is not my intent that, [the defendant], in case you are thinking that all of your inheritance has to be complete, but when you receive $250,000 of liquid assets, marketable securities, you should pay [the plaintiff] $100,000. That contempt, if there is one, would be viewed differently.”

Counsel for the plaintiff inquired whether the court was clarifying the dissolution judgment so that the $100,000 obligation would be triggered only if the defendant received an inheritance of cash. The court responded: “I'd rather not do that because there isn't a motion to clarify. If and when he receives something that is readily convertible to cash, I would certainly entertain your motion for contempt if it wasn't effectuated, but if it is a building that might be sold, might not be sold, that is probably in that gray area that I won't go that far. When there is cash, when there is stock in a publically traded corporation, that I consider to be readily available cash.” The plaintiff's counsel then questioned whether the court was altering the terms of the dissolution judgment, to which the court responded, “[t]hat's not what I am doing.” The following colloquy then occurred between the plaintiff's counsel and the court:

“[The Plaintiff's Counsel]: I understand you are not doing that, and I am troubled because it sounds like it is going in that direction, because he is involved with litigation with a [person claiming to be an heir of the decedent] that could be going on for years. We could be sitting here for years waiting for the [probate] litigation to finish as it goes through the appellate process. Your order is simple and one sentence; as long as it is more than $250,000. I claim we have to satisfy that hurdle. For Your Honor to add to the record marketable securities or cash, it changes the nature and that becomes an issue.

“The Court: There is no motion to clarify. The court has not clarified, modified or changed the judgment. It is what it is. I think I was suggesting to [the defendant] that if and when he receives the ability to pay, he should pay [the plaintiff], but I am not ruling on a motion that is not before me, and I am not changing the judgment.

“[The Plaintiff's Counsel]: I can't get a ruling on the fact that he has received more than two and one-half million dollars of assets so far? I am trying to figure out how to justify that.

“The Court: To the extent that I have muddied the order sufficiently, I will vacate the order that I just made. I will vacate the findings that I just made. I am going to vacate the dicta which I just made. The motion for contempt is denied.”

The plaintiff then filed the present appeal, arguing that the court's order was clear and unambiguous and that the court abused its discretion by modifying the property order and by failing to find the defendant in contempt. Because the trial court had vacated all of its findings underlying the order, vacated the order, and then denied the motion for contempt without providing the reasoning for doing so, we issued the following order on November 5, 2013: “Pursuant to Practice Book §§ 61–10(b) and 60–5, the trial court ... is hereby sua sponte ordered to articulate, within thirty days of this order, the factual findings and legal basis underlying its denial of the motion for contempt.” ⁴

On November 21, 2013, the court issued its articulation regarding the denial of the plaintiff's motion for contempt. The court stated that “[t]he defendant had inherited stock in a closely held family business. He inherited no dollars. Stock in a closely held family business is not dollars.” The court also articulated that the defendanthad not received any other distribution from the Probate Court, he did not possess $100,000 of cash at the time of the hearing on the contempt motion and therefore was unable to pay that sum to the plaintiff, and the plaintiff presented no evidence that the defendant had inherited any cash or that “the stock in a closely held family business was liquid or otherwise readily convertible into dollars or that there existed a market for said shares.” The court also determined that its order was ambiguous because it did not state whether the $250,000 trigger to pay $100,000 to the plaintiff must be in “actual dollars or other assets valued at $250,000.” It further concluded that “[t]he defendant's failure to pay to the plaintiff $100,000 upon receiving shares of stock in his family business was not a wilful disobedience of a clear and understandable order; rather, it illustrates a good faith disagreement as to what was meant in that court order. The defendant had a good faith belief that his receipt of stock in the family business was not the condition...