Sosin v. Sosin

• Decision Date: 12 August 2008
• Docket Number: No. 27829.,No. 27633.,27633.,27829.
• Citation: 952 A.2d 1258,109 Conn.App. 691
• Court: Connecticut Court of Appeals
• Parties: Howard B. SOSIN v. Susan F. SOSIN.

952 A.2d 1258

109 Conn.App. 691

Howard B. SOSIN v. Susan F. SOSIN.

No. 27633.

No. 27829.

Appellate Court of Connecticut.

Argued March 11, 2008.

Decided August 12, 2008.

Wesley W. Horton, with whom were Daniel J. Krisch, Hartford, and Mark R. Soboslai, for the appellant-appellee (plaintiff).

Charles D. Ray, Hartford, with whom was Frederic J. Siegel, Stamford, for the appellee-appellant (defendant).

BISHOP, HARPER and PETERS, Js.

HARPER, J.

The plaintiff, Howard B. Sosin, appeals from the judgment of the trial court following a postdissolution contempt proceeding initiated by his former wife, the defendant, Susan F. Sosin. The court ordered the plaintiff to pay the defendant $3,828,081, calculated as the unpaid portion of moneys awarded to the defendant in a modified judgment of dissolution, as well as postjudgment interest. The plaintiff claims that (1) the court's order that he pay the defendant $3,828,081 was improper because it contradicted the court's earlier distribution of marital assets and (2) the court improperly awarded the defendant interest after finding that he had not withheld payment from the defendant wrongfully. The defendant filed a cross appeal related to the court's award of interest. The defendant claims that the court improperly (1) awarded her interest under General Statutes § 37-1 instead of General Statutes § 37-3a and (2) failed to award such interest on all of the moneys to which it applied from the date that the defendant was obligated to have made payment to her. We disagree with the claims raised by the plaintiff. We agree with the claims raised by the defendant and, accordingly, reverse the judgment of the trial court and remand the case to that court to consider the claim for postjudgment interest in accordance with this opinion.

The following facts and procedural history are relevant to the appeal and cross appeal. By memorandum of decision issued March 22, 2005, the court dissolved the parties' marriage and distributed the parties' assets, which the court valued at approximately $147 million. The court awarded the plaintiff exclusive possession of seventeen bank-brokerage accounts totaling $89,039,617.68. The court awarded the defendant one bank-brokerage account totaling $6,171,803. The court also awarded the defendant a lump sum cash award of $24 million. With regard to this award the court stated: "The plaintiff shall choose to pay this amount from any of his seventeen accounts. This sum shall be paid within thirty (30) days of this decree." April 21, 2005, fell thirty days following the court's decree.

On April 11, 2005, the plaintiff filed a motion to reargue on the ground that the court improperly had allocated and valued specific assets and that these improprieties were material to its distribution of assets. The court granted the motion and conducted a hearing on the motion.¹ On September 8, 2005, the court issued an order modifying its earlier distribution of assets. The court agreed with the plaintiff that it had overstated the value of certain assets awarded to him. The court stated in relevant part: "The overstatement of value to the plaintiff is $459,700, one half of which ($229,850) should be credited to the plaintiff. It was the court's intention to award the defendant the lump cash award of $24 million so the sum of $229,850 should be deducted from the cash award and credited to the plaintiff." The court also awarded certain items to the plaintiff and ordered that "$64,750 in cash should be credited to the defendant." Consequently, the court's September 8, 2005 order affected the original cash award made to the defendant; the court's modified judgment obligated the plaintiff to pay the defendant $23,834,900.

On November 3, 2005, the defendant filed a motion for contempt, citing the plaintiff's failure to pay any of the moneys due her by virtue of the court's modified judgment, from which the plaintiff had not appealed. The defendant also asked the court to award her interest until such time as the plaintiff complied with the court's judgment. By memorandum of law dated February 24, 2006, the defendant represented that on November 10, 2005, she received payment from the plaintiff in the amount of $20,006,819 but that a balance of $3,828,081 was still unpaid. The defendant asked that the plaintiff be held in contempt, for an award of counsel fees and for an award of interest under § 37-3a, on the entire monetary award from April 21 through November 10, 2005, as well as an award of interest on the unpaid balance of $3,828,081 from November 10, 2005, through February 24, 2006.

On March 23, 2006, the court issued an order denying the defendant's motion for contempt, stating in relevant part: "An examination of the transcript and record makes it clear that the defendant was awarded the sum of $24 million. By order dated September 8, 2005, the court made slight modifications and reduced the $24 million by $165,100 leaving a balance due of $23,834,900. The plaintiff unilaterally deducted $3,828,081 from the sum due the defendant. There was no escrow of funds pending a judicial determination. The plaintiff shall pay to defendant the sum of $3,828,081 within ten days of the date of this order. Interest at the legal rate is ordered on said sum from September 8, 2005 (date of modification of decision). The court has some doubt as to whether the plaintiff's conduct was wilful and deliberate. The present motion for contempt is denied."

Thereafter, both parties challenged the court's award of interest. On April 11, 2006, the plaintiff filed a motion to reargue the court's March 23, 2006 order. The plaintiff represented that on April 3, 2006, he paid the defendant an additional $4,001,760.21, in compliance with the court's judgment. The plaintiff nevertheless challenged the propriety of the court's award of interest on the ground that the court had not rendered a final judgment concerning the payment to the defendant until after the September 8, 2005 judgment became final on October 11, 2005, and that interest should not begin to accrue prior to this date. The court denied the plaintiff's motion on April 19, 2006. Also, on April 11, 2006, the defendant filed a motion to reargue the court's March 23, 2006 order. The defendant challenged the court's award of interest, arguing that she was entitled to interest at the rate of 10 percent beginning on April 21, 2005, instead of September 8, 2005. The court denied the defendant's motion on June 22, 2006.

Additionally, on April 11, 2006, the defendant filed a motion for contempt on the ground that the defendant had not paid her interest in compliance with the court's judgment. Specifically, the defendant represented that the defendant had paid her interest on $3,828,081 as of September 8, 2005, but that he improperly calculated the interest at a rate of 8 percent rather than at the rate of 10 percent per § 37-3a, as was required by the court's order.

On May 8, 2006, the plaintiff filed an appeal, AC 27633, from the court's March 23, 2006 order. On May 16, 2006 the defendant filed a cross appeal from the March 23, 2006 order. On June 28, 2006, following the court's denial of her motion to reargue the March 23, 2006 order, the defendant filed an amended cross appeal. On July 7, 2006, following the court's denial of his motion to reargue, the plaintiff filed a second appeal, AC 27829. On October 11, 2006, this court consolidated the pending appeals under AC 27633 and AC 27829.

On November 27, 2006, the court issued the following order concerning the motion for contempt: "The court has carefully considered the claims of the parties and finds that § 37-3a of the Connecticut General Statutes is applicable and that 10 percent is the correct rate of interest. Upon payment of the balance due, the defendant shall release the judgment lien certificate dated March 9, 2006. The motion for contempt is denied, without prejudice." On December 18, 2006, the plaintiff filed an amended appeal from this order.

On December 13, 2006, this court ordered the trial court to articulate the statutory basis for its March 23, 2006 award of interest. By articulation filed February 9, 2007, the court stated: "The rate of interest is 8 percent and is based on Connecticut General Statutes § 37-1." The court subsequently granted the defendant's motion to reconsider this order and, on June 8, 2007, issued an order stating as follows: "The motion to reconsider is granted. While there were inconsistent orders as they related to the amount of interest, the court articulated on February 9, 2007, that the rate of interest is 8 percent and is based on Connecticut General Statutes § 37-1. The articulation is rearticulated and remains the order of the court." On June 25, 2007, the defendant filed a second amended cross appeal from this order. Additional facts will be set forth as necessary.

I

THE APPEAL

A

The plaintiff first claims that the court's March 23, 2006 order that he pay the defendant $3,828,081 was improper because it contradicted the court's March 22, 2005 distribution of marital assets. We disagree.

The plaintiff argues that in its March 22, 2005 judgment, the court plainly evidenced its intent "to award [him] accounts and funds with a total value of $89,039,617.69" by listing seventeen accounts, specifying the value of each of the accounts and awarding those accounts, with a specified total value of $89,039,617.69, to him. Stated otherwise, the plaintiff asserts that the court awarded him a lump sum cash award in this amount. The plaintiff argues that the court's subsequent order of March 23, 2006, that he pay the defendant $3,828,081, rendered the court's prior distribution of those accounts "a mathematical impossibility" and, thus, modified the prior distribution. The plaintiff posits that although the court in March, 2006, possessed the authority to clarify its earlier judgment, it was without jurisdiction to modify the earlier...