Buehler v. Buehler

• Decision Date: 11 September 2012
• Docket Number: No. 33356.,33356.
• Citation: 138 Conn.App. 63,50 A.3d 372
• Court: Connecticut Court of Appeals
• Parties: Richard BUEHLER v. Lilach BUEHLER.

138 Conn.App. 63

50 A.3d 372

Richard BUEHLER

v.Lilach BUEHLER.

No. 33356.

Appellate Court of Connecticut.

Argued May 31, 2012.

Decided Sept. 11, 2012.

Campbell D. Barrett, with whom were Jon T. Kukucka, and, on the brief, C. Michael Budlong, for the appellant (plaintiff).

Charles W. Fleischmann, Shelton, for the appellee (defendant).

BEACH, ALVORD and ESPINOSA, Js.

ALVORD, J.

In this domestic relations matter transferred to the Regional Family Trial Docket at Middletown from the Stamford–Norwalk judicial district, the plaintiff, Richard Buehler, appeals from several post-judgment orders of the trial court rendered in favor of the defendant, Lilach Buehler. Specifically, he claims that the trial court improperly (1) acted without subject matter jurisdiction by entering a postjudgment order awarding the defendant the rental income generated by the former marital residence, (2) found him in contempt of court after he ceased making mortgage payments following the court's decision to allow the parties to place the marital residence on the rental market, and (3) denied his motion to modify and to order that the former marital residence immediately be placed back on the market.¹ We affirm the decision of the trial court denying the plaintiff's motion to modify, however, we agree with the plaintiff that the trial court acted without subject matter jurisdiction by improperly assigning property postjudgment when it awarded the defendant all of the rental income generated by the marital residence. Therefore, we determine that the court improperly found the plaintiff in contempt with respect to his failure to make monthly mortgage payments because the mortgage was being paid out of the rental income generated by the marital residence.² Accordingly, we reverse in part the judgment of the trial court, vacate the arrearage finding of April 7, 2011, and remand the case for a new determination of the arrearage consistent with this opinion.

The following facts, as stated in this court's decision affirming the judgment of dissolution rendered by the trial court; Buehler v. Buehler, 117 Conn.App. 304, 306–308, 978 A.2d 1141 (2009); are relevant to our disposition of the plaintiff's current, postjudgment appeal. “The parties were married on September 7, 1997, and have three minor children.... On November 14, 2006, the plaintiff initiated dissolution of marriage proceedings by service of summons and complaint on the defendant. On June 4, 2008, the court, Gordon, J., rendered judgment dissolving the parties' marriage on the ground that it had broken down irretrievably and that reconciliation was not a possibility. After a lengthy discussion of its factual findings, the court issued the following orders: ‘[T]he defendant wife ... shall have sole legal and physical custody of the minor children. She shall have sole decision-making power regarding all matters affecting the health, education and welfare of the children, which is to be read broadly.... All parenting time between [the plaintiff] and the children shall be supervised....

“ ‘[The defendant] is awarded $400 per week as child support.... [The defendant] is awarded alimony in the amount of $25,000 per year.... [The plaintiff] shall pay approximately $196, or one half, of the COBRA ³ cost for [the defendant's] health insurance.... Until the [marital home] is sold, each of the parties shall be responsible for one half of the mortgage payment, which is to be paid promptly on the first of each month.... The court retains jurisdiction regarding the sale of the house ....

“ ‘The marital home ... currently on the market, shall continue on the market. The coordination of the sale, the broker, etc., shall be [the defendant's] responsibility. Each of the parties is ordered to cooperate regarding the sale of the property and the asking price for the property and to cooperate with the broker. If there is any dispute, [the defendant] can select the broker and set the price after consultation with [the plaintiff]. Until the property is sold, [the defendant] shall have sole possession and exclusive use of the property. Upon the closing, there will be deductions for all of the normal and customary closing costs.... Then, it shall be divided as follows from the joint proceeds: to [the defendant], the first $95,000 to repay the loan which saved the house. Then, to [the defendant], $12,000 to pay off the balance on her car. Then, to [the defendant] an amount equal to the credit card debt which she incurred from the time of the separation to February 27, 2007. Then, the fees for the guardian ad litem and the attorney for the guardian ad litem. These amounts are to be paid off of the top of the proceeds. Then the balance is to be divided between the parties equally. But from [the plaintiff's] side, shall first be subtracted $65,000 to be paid to [the defendant], which represents her share in the funds which he appropriated out of their accounts before filing this action.’ ” (Emphasis in original.) Id.

On June 13, 2008, the defendant filed a motion for contempt arguing that the plaintiff failed to make timely mortgage, alimony and support payments in accordance with the June 4, 2008 order of the court. The court held a hearing on June 24, 2008, and found the plaintiff in wilful contempt of court. The court also passed title in the marital home to the defendant to preserve the asset and to effectuate its sale. Id., at 309–10, 978 A.2d 1141. The plaintiff appealed the court's orders to this court, however, this court determined that the plaintiff did not appeal timely the issues relating to the sale of the home and dismissed the appeal with regard to those issues. Id., at 310–11, 978 A.2d 1141.

On August 27, 2008, the defendant filed a postjudgment motion for modification with respect to renting the marital residence. In her motion for modification, the defendant alleged the following: “The defendant represents that there has been a significant change in circumstances in that there have been no offers made on the home, the plaintiff has failed and refused to pay his share of the monthly mortgage payments for the months of July and August, 2008, and the September mortgage payment is soon approaching, and that the defendant's financial situation is deteriorating in that she can no longer afford to pay all of the aforementioned mortgage payments, and will face a foreclosure action once again.

“Wherefore, the defendant moves that the aforementioned order be modified so that the former marital residence may be placed on the market for rent, so that the anticipated monthly rent will be sufficient to pay the monthly mortgage payments, which will alleviate the financial stress and prevent the marital residence from being placed once again into foreclosure, dissipating all of the assets of the defendant.” The court heard the parties on the motion for modification on September 23, 2008, and, at the hearing's conclusion, the court stated: “The motion for modification regarding the sale is granted.”

On May 3, 2010, the plaintiff filed a motion for modification requesting “[t]hat the court order [the] defendant to pay [the] plaintiff his equitable one half share of the rental income, retroactive to May 25, 2009, and any deposits or other payments received related to the rental of the marital residence less [the] plaintiff's one half portion of mortgage payments ... [and][t]hat the defendant be ordered to place the marital residence back on the market immediately.”

On June 11, 2010, the defendant filed a motion for contempt alleging, inter alia, that the plaintiff failed to: pay one half of the defendant's expense for COBRA, set up a direct deposit so that payments for the benefit of the children could be made electronically, pay one half of the children's unreimbursed medical expenses, pay one half of the expenses of the children's extracurricular activities, provide a copy of his 2006 tax return to the defendant and to pay to the defendant one half of the 2006 tax refund, maintain life insurance with the defendant as the trustee beneficiary and pay in full his one half of the outstanding mortgage payments and taxes.

A hearing on these motions was held ten months later on April 6 and 7, 2011.⁴ In a ruling from the bench, the court granted the defendant's motion for contempt with regard to the COBRA expenses, the children's extracurricular activities, the direct deposit account and the mortgage payments, finding an arrearage in the amount of $69,172 plus judgment interest. The court ordered that the plaintiff pay an additional $1660 per month on the arrearage subject to wage withholding. Additionally, the court awarded the defendant $1000 in sanctions due to the plaintiff's failure to appear at a deposition. The court also awarded the defendant $32,197 in attorney's fees, which would “come off [the plaintiff's] share that is due and payable at the time of the closing [after sale of the marital residence].” The court denied the plaintiff's May 3, 2010 motion for modification, stating: “When you come into this court and tell me that you are paying one half of the mortgages on the property that's rented [and] stand ready to contribute, then and only then should you be entitled to share in anything. But certainly, given the fact that you have wilfully not paid it, without any permission from the court, you don't stand here with (a) clean hands or (b) on equitable grounds, because as I said before, the only reason anybody's in this pickle is because of your wilful contempt, and I'm not going to allow you to profit by it.” This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first contends that the court improperly acted without subject matter jurisdiction by entering a postjudgment order on April 7, 2011, awarding the defendant the rental income generated by the former marital residence. We agree.

Our Supreme Court recently has restated the well settled rule that “[t...