Lawrence v. Cords

• Decision Date: 17 May 2016
• Docket Number: No. 37323.,37323.
• Court: Connecticut Court of Appeals
• Parties: Karin LAWRENCE v. Manuel CORDS.

165 Conn.App. 473

139 A.3d 778

Karin LAWRENCE

v.Manuel CORDS.

No. 37323.

Appellate Court of Connecticut.

Argued Feb. 4, 2016.

Decided May 17, 2016.

Gregory T. Nolan, with whom, on the brief, was Patsy M. Renzullo, Winsted, for the appellant (defendant).

Regina M. Wexler, with whom, on the brief, were Mark H. Swerdloff and Ileen P. Swerdloff, West Hartford, for the appellee (plaintiff).

DiPENTIMA, C.J., and PRESCOTT and MULLINS, Js.

PRESCOTT

, J.

In this marital dissolution action, the defendant, Manuel Cords, appeals from the trial court's postdissolution judgment in favor of the plaintiff, Karin Lawrence, finding the defendant in contempt and ordering him to pay the plaintiff $246,000 plus interest in several installments. On appeal, the defendant claims that the court improperly (1) terminated the automatic appellate stay of execution of a prior order of contempt and (2) modified the division of property postdissolution. We affirm the judgment of the trial court.

The following facts, as found in the record or as stated by this court in Lawrence v. Cords, 159 Conn.App. 194, 196–98, 122 A.3d 713 (2015)

( Lawrence I ), and procedural history are relevant to our consideration of the defendant's claims. “The marriage of the parties was dissolved on November 19, 2013. Pursuant to that judgment, the court, Gallagher, J., issued various orders regarding the parties' marital property. With respect to their real property, the court ordered, inter alia:

“ ‘7. Upon payment of $246,000 by the defendant to the plaintiff as set forth herein, the plaintiff shall quitclaim all her right, title and interest in 61 [Phelps]¹ Road [ (property) ] to the defendant. The defendant shall hold the plaintiff harmless on all notes and mortgages regarding the Colebrook properties.² ...

“ ‘8. The defendant shall pay to the plaintiff the sum of $246,000 within 60 days of notice of this decision. Should the defendant fail to pay the sum of $246,000 to the plaintiff in the time period allotted, the defendant shall take whatever steps necessary to remove the cloud on the title he caused to be placed in the name of Sibling Associates, and the parties shall immediately thereafter cause 61 Phelps Road to be placed on the market. The sales price will be determined by the real estate broker. Upon sale of the subject property, the proceeds shall be paid out as follows: payment in full of the Webster Bank mortgage; $246,000 plus interest on said sum at the legal rate to the plaintiff; remainder to the defendant. Said interest begins running sixty days from the date of this decision.’

“On January 27, 2014, the plaintiff filed a motion for contempt on the ground that the defendant had failed to comply with the above-referenced orders of the court. Specifically, she alleged that more than sixty days had passed since the date of the dissolution judgment, but that the defendant had not paid her the ordered sum of $246,000, nor had the defendant taken any steps to list the subject property for sale. She claimed that the defendant failed to hold her harmless for the mortgage on the property and that she had paid it for the months of December, 2013, and January, 2014. She thus asked the court to find the defendant in contempt, ‘together with appropriate orders, including a reasonable attorney fee necessitated by the requirement that she file this motion.’

“The court, Gallagher, J., held a hearing on the plain-tiff's motion for contempt on February 10, 2014, at which both parties testified. Following that testimony and oral argument by attorneys for both parties, the court ruled from the bench, finding the defendant in contempt because he did not pay the mortgage on the property or put the house on the market.... The court ordered that the house be put on the market within seven days and that the defendant pay the property taxes on the property. The court held: ‘Now, he has assets to pay her; he can either do that or he—he can do one of two things in seven days. He can either pay her the $246,000 plus the money that he owes on the mortgage payments that she made or he can start paying—he can put it on the market within seven days, and he can also pay the taxes that are owed and pay the monthly payments on the mortgage.’ The court also ordered the defendant to pay attorney's fees in the amount of $800 for the plaintiff's attorney.” (Footnotes added.) Id.

The defendant appealed to this court from the court's finding of contempt, arguing that the court improperly modified the property distribution order by requiring him to pay the mortgage on the property and found him in contempt for not paying the mortgage. On August 11, 2015, this court held that the court's order effectuated, rather than modified, its dissolution order regarding the payment of the mortgage, but because the dissolution order had been ambiguous concerning the mortgage payment, the defendant's noncompliance was not wilful, and, thus, the court's finding of contempt was improper. Id., at 200, 202, 122 A.3d 713

.

While Lawrence I was pending before this court, on March 20, 2014, the plaintiff filed a second motion for contempt on the ground that the defendant continued to fail to pay the mortgage on the property and the property taxes. On July 21, 2014, the plaintiff also filed a motion to terminate the automatic stay of execution of the February 10, 2014 order that was in place as a result of the filing of the appeal in Lawrence I. The plaintiff alleged that the appeal in Lawrence I had been taken only for the purpose of delay, and, thus, the automatic stay of execution should be terminated.

On August 5 and 11, 2014, a hearing on the motions was held. After hearing testimony from both parties and the defendant's real estate broker, Marshall Cohen, the court, Trombley, J., issued an oral ruling from the bench on August 11, 2014. The court explicitly declined to terminate the automatic stay with regard to the February 10, 2014 order that the defendant pay the property taxes and attorney's fees. The court then found the defendant in contempt for failing to make the mortgage payments and for failing to pay the plaintiff for her share of the property or to put the property on the market. The court ordered the defendant “to reimburse the [plaintiff] $16,783.68, which is the mortgage [that] she paid ... and [to] make monthly payments, commencing with the September payment, of the principal and interest to Webster Bank [the mortgager] until the [property] is sold or until the [plaintiff] is paid her $246,000 plus interest.

“Second, the [defendant] shall make the $246,000 payment to the [plaintiff] in installments, each to include the [10] percent accumulated interest. First installment of $82,000 is to be paid on or before December 1, 2014, plus interest; second installment is to be paid, $82,000, on or before July 1, 2015, plus interest; and the final installment of $82,000 is to be paid by December 31, 2015, plus interest.” This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly terminated the automatic stay of execution of the February 10, 2014 order that was triggered, pursuant to Practice Book § 61–11(a)

,³ by the filing of the appeal in Lawrence I. Specifically, the defendant argues that by ruling on issues that were before the Appellate Court—namely, whether the defendant was required to pay the mortgage on the property—the court improperly terminated the automatic stay of execution of the February 10, 2014 contempt order.⁴ We decline to review this claim because it is not presented properly for resolution on appeal.

Practice Book § 61–14

provides in relevant part: “The sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under [Practice Book § ] 66–6.⁵ Execution of an order of the court terminating a stay of execution shall be stayed for ten days from the issuance of notice of the order, and if a motion for review is filed within that period, the order shall be stayed pending decision of the motion, unless the court having appellate jurisdiction rules otherwise....” (Footnote added.) Thus, “[i]ssues regarding a stay of execution cannot be raised on direct appeal. The sole remedy of any party desiring ... [review of] ... an order concerning a stay of execution shall be by motion for review....” (Internal quotation marks omitted.) Santoro v. Santoro, 33 Conn.App. 839, 841, 639 A.2d 1044 (1994) ; see also JP Morgan Chase Bank v. Gianopoulos, 131 Conn.App. 15, 23, 30 A.3d 697 (“[t]he trial court's decision to terminate an appellate stay is subject to review only pursuant to a timely motion for review”), cert. denied, 302 Conn. 947, 30 A.3d 2 (2011)

; Housing Authority v. Morales, 67 Conn.App. 139, 140, 786 A.2d 1134 (2001) ( “[i]ssues regarding a stay of execution cannot be raised on direct appeal” [internal quotation marks omitted] ).

If the defendant here believed that the effect of the court's ruling was a termination of the automatic stay of execution, he was obligated to file a motion for review. Having failed to do so, he is precluded now from raising this issue on direct appeal. Accordingly, we decline to review the claim.

II

The defendant also claims that the court improperly modified postdissolution the property distribution order. Specifically, he argues that the court improperly reallocated the property distribution by ordering the defendant to pay the plaintiff $246,000 for her share in the property from his personal assets, rather than from the proceeds from the sale of the property. The plaintiff responds that the court's order did not modify the dissolution judgment but effectuated it. We agree with the plaintiff that the court's order properly effectuated the property distribution of the judgment of dissolution.

The following additional facts are relevant to this claim. The relevant portions of the judgment of dissolution provide that:

“3. The plaintiff's...