Edmond v. Foisey

Decision Date23 December 2008
Docket NumberNo. 29077.,29077.
PartiesJohn EDMOND III v. Dawn FOISEY et al.
CourtConnecticut Court of Appeals

Andrew Brand, with whom was Bryan P. Fiengo, New London, for the appellant (named defendant).

Beth A. Steele, Norwich, for the appellee (plaintiff).

DiPENTIMA, McLACHLAN and LAVINE, Js.

DiPENTIMA, J.

The defendant Dawn Foisey1 appeals from the judgment of contempt rendered in favor of the plaintiff, John Edmond III. Specifically, the defendant claims that the trial court (1) violated her right to due process when it failed to afford her a full hearing on the issues raised in the plaintiff's motions for contempt, (2) imposed a punitive sanction in violation of Practice Book § 1-21A,2 (3) improperly found her in contempt and (4) improperly enforced the parties' stipulated judgment by a sanction for contempt.3 We agree with the defendant's first and second claims and accordingly, reverse the judgment of the trial court.4

A discussion of the unfortunate and extensive factual and procedural history is necessary. The plaintiff is an owner of property located in Griswold known as 15 Juniper Lane. In April, 2004, the plaintiff transferred an interest in this property to the defendant. Specifically, he and the defendant held the property as joint tenants with rights of survivorship, each holding an undivided half interest therein. At some point subsequent to this transfer, the relationship between the parties broke down.

On March 17, 2006, the plaintiff commenced the present action, seeking a judicial determination of the respective rights and interests of the parties with respect to the property. In his amended complaint, dated November 8, 2006, the plaintiff sought a partition of the property and set forth claims of conversion, property damage and unjust enrichment. On December 18, 2006, the court granted the defendant's motion to bifurcate the partition action from the remaining claims.

On December 20, 2006, prior to trial, the parties executed an agreement with respect to the partition action. First, the plaintiff agreed to sell his title and interest in the property to the defendant for $200,000. With those proceeds, the plaintiff would pay off the approximately $140,000 mortgage. The sale was to take place within ninety days, which would be March 20, 2007. Second, the December, 2006 mortgage payment, which had not been made, was to be made by the defendant after receiving funds for one half of the payment from the plaintiff. Third, the defendant was required to "pay in full all mortgage payments due for the property up until the day of closing and hold the plaintiff harmless for the same." Fourth, the defendant retained exclusive possession of the property until the closing. Fifth, the plaintiff was awarded access to the premises on January 6, 2007, to retrieve certain personal items. The court, Hon. Robert C. Leuba, judge trial referee, incorporated the agreement into its judgment.

On January 8, 2007, the plaintiff filed a motion for contempt, alleging that the defendant had failed to comply with the terms of the agreement. Specifically, he claimed that the defendant had neglected to make the December, 2006 mortgage payment and refused to allow him access to retrieve his belongings. On January 19, 2007, the defendant filed an objection, averring that she had tendered the required payment and that the plaintiff had retrieved his items from the property.

On February 13, 2007, the court, Hon. D. Michael Hurley, judge trial referee, held a hearing on the plaintiff's contempt motion. At the hearing, counsel for the plaintiff acknowledged that both the December, 2006 and January, 2007 mortgage payments had been made by the defendant. The plaintiff's counsel argued, however, that the payments were untimely and therefore negatively affected the plaintiff's credit. In response, counsel stated that the defendant "didn't know the date that she had to pay." The court expressly rejected the defendant's assertion that she was unaware of the date that the mortgage payments were due and found the defendant in contempt.5 The parties then agreed to stay the proceedings for contempt with respect to the issue of the plaintiff's belongings at the property. The court continued the plaintiff's request for attorney's fees6 and ordered the defendant to pay the February, 2007 mortgage payment, including any late fees, by February 20, 2007. Counsel for the plaintiff stated for the record that the monthly mortgage payments were due on the first day of the month with a grace period in which payment must be received by the fifteenth of the month.

On March 21, 2007, the plaintiff filed a second motion for contempt, alleging that the defendant had failed to pay the February and March, 2007 mortgage payments in a timely manner, failed to permit him access to retrieve his items from the property and failed to take the steps necessary to finalize the sale of the property.

On April 30, 2007, the court held a hearing on the plaintiff's second contempt motion. The plaintiff testified that timely mortgage payments had not been made in December, 2006 and January, February and March, 2007. Additionally, there was evidence that the April mortgage payment had not been made at all. The plaintiff then stated that if the defendant could not obtain financing to purchase the property, he preferred that it be sold on the real estate market. The plaintiff's counsel then called Keith Wilcox, a mortgage lender, as a witness. Wilcox testified that the defendant first applied for a mortgage loan on March 12, 2007. This was only eight days before the closing was to occur on March 20, 2007. Wilcox testified that the defendant's application had been denied. He also indicated that there was a 50 percent chance that the defendant would be able to obtain a mortgage loan.

The defendant then testified that she did not make the April, 2007 mortgage payment because that was not part of the agreement. She also stated that she had believed that the payments were due by the twentieth of each month and that she was aware of her obligation to make the monthly payments until a closing had occurred.

At the conclusion of the testimony, the plaintiff's counsel requested various court orders. During further discussion, counsel for the parties acknowledged that an appraisal had been completed in December, 2006, and that the value of the property was $230,000. The court ordered that if an offer to purchase the property was $225,000 or greater, the parties were required to accept it. The court then stated that the defendant did not explain why the February, 2007 mortgage payment had not been made on February 20, as the defendant previously had agreed.7 The court found the defendant in contempt8 and stated: "I am also going to order, just so it's clear, that she make the April, [2007] payment immediately and that she is responsible for any subsequent payments until the house is paid for. And they must be made in a timely manner, that is, on the first of the month, otherwise [the plaintiff's] credit is affected and that's not fair. As to the agreement, I'm going to—or rather, the order of the court, I'm going to go along with what counsel suggested, that the sale be arranged for by [a Realtor], that the defendant is ordered to sign the listing agreement within three days of when it's presented.... She must allow access to the property [and] that the minimum payment or minimum sale price will be $225,000." The court also awarded the plaintiff attorney's fees in the amount for $500.

On May 7, 2007, the plaintiff filed his third motion for contempt. He alleged that the defendant had failed to make the April and May, 2007 mortgage payments and that she had failed to sign the listing agreement or to return the calls of the Realtor. On May 10, 2007, the defendant filed an objection to the motion for contempt and a request to modify the court's orders with respect to the second contempt order. The plaintiff filed a fourth motion for contempt, dated May 15, 2007, claiming that the defendant refused to list the property, to allow a "for sale" signed to be placed on the property and to permit the property to be shown to potential buyers. Finally, a fifth contempt motion was filed by the plaintiff, alleging that the defendant failed to make the June, 2007 mortgage payment.

On July 30, 2007, the court held a hearing on all three pending motions. The plaintiff's counsel requested another finding of contempt and that the defendant be incarcerated. As an alternative to incarceration, counsel asked that the defendant be ordered to vacate the property and to execute a deed to the property in favor of the plaintiff.9 The defendant's counsel argued that his client was entitled to half of the proceeds from the sale and that an evidentiary hearing was required before the property could be transferred solely to the plaintiff. The plaintiff's counsel responded that the defendant was not entitled to anything from the property because she had enjoyed its use for the past three and one-half years.10

After hearing further argument and without conducting an evidentiary hearing, the court ordered the defendant to vacate the property and to convey the property in its entirety to the plaintiff.11 The court also stated that the defendant could file an action if she wanted to recover her financial interest from the sale of the property. Furthermore, the court again found the defendant to be in contempt. Title to the property ultimately was conveyed by judicial order to the plaintiff, and the defendant was given approximately two weeks to vacate the property. This appeal followed.12 Additional facts will be set forth as necessary.

At the outset, we stress the importance of compliance with court orders and note that we in no way endorse the defendant's continual disregard for the court's orders. "The interests of orderly government...

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    ...remainder interest in the property because the types of issues involved herein may arise on remand. See Edmond v. Foisey, 111 Conn.App. 760, 773 n. 14, 961 A.2d 441 (2008) (reviewing court may resolve claims that are not necessary for resolution of appeal but may arise during proceedings on......
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    ...rules and orders of a court which has power to punish for such an offense." (Internal quotation marks omitted.) Edmond v. Foisey, 111 Conn.App. 760, 769, 961 A.2d 441 (2008). Nonetheless, "[n]oncompliance alone will not support a judgment of contempt." (Internal quotation marks omitted.) Pr......
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    ...is offered within or outside the presence of the court." (Citation omitted; internal quotation marks omitted.) Edmond v. Foisey , 111 Conn.App. 760, 769, 961 A.2d 441 (2008). The plaintiff in this case alleged in her motion for contempt that the defendant failed to comply with the court's o......
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