Zivic v. Zivic, 9615

• Decision Date: 24 September 1991
• Docket Number: No. 9615,9615
• Citation: 596 A.2d 475,26 Conn.App. 5
• Court: Connecticut Court of Appeals
• Parties: Shirley ZIVIC v. Frederick J. ZIVIC.

Page 475

596 A.2d 475

26 Conn.App. 5

Shirley ZIVIC v. Frederick J. ZIVIC.

No. 9615.

Appellate Court of Connecticut.

Argued June 5, 1991.

Decided Sept. 24, 1991.

George A. Silvestri, with whom, on the brief, was Edward J. Daly, Jr., Hartford, for appellant (defendant).

Neil A. McPhail, with whom, on the brief, was Aaron L. Gersten, Hartford, for appellee (plaintiff).

Before SPALLONE, FOTI and CRETELLA, JJ.

SPALLONE, Judge.

This is an appeal from the decision of the trial court denying the defendant's postjudgment motion to compel.

The parties' marriage was dissolved on November 22, 1976. The judgment of dissolution incorporated a stipulation of the parties that contained the following provision: "There's a lien of approximately a quarter of a million dollars against the wife's property located on Gunn Mill Road in Bloomfield. When that lien is released by the Charter Oak Bank then and in that event the wife will quitclaim all of her right title and interest in and to her undivided half interest in real estate in St. Thomas, Virgin Islands. Husband will further agree that any interest he owns in real estate located in Simsbury, Canton and the Virgin Islands will first be exhausted to pay that Charter Oak lien before the Charter Oak Bank commences any action against the wife's property."

The defendant's interest in the Canton and Simsbury properties was exhausted in bankruptcy. The defendant paid all but $40,000 of the $250,000 Charter Oak Bank lien against the plaintiff's Gunn Mill Road property. The Charter Oak Bank subsequently received a judgment against the plaintiff for the remaining $40,000 and the plaintiff sold the Gunn Mill Road property to extinguish that judgment.

On May 31, 1989, the trial court, Steinberg, J., ordered the defendant to reimburse the plaintiff the $40,000. On August 24, 1989, the defendant filed a motion entitled, motion to compel and for contempt and modification, requesting the court to order one or more of the following: (1) compel the plaintiff to furnish the defendant with authority to sell the St. Thomas property with whatever safeguards were necessary to ensure that the plaintiff would be paid $40,000 from the proceeds of the sale; (2) find the plaintiff in contempt for refusing to furnish the defendant with the aforementioned authority; and (3) modify the judgment to require the $40,000 due to be paid six months after the plaintiff furnished the aforementioned authority.

On August 22, 1990, the plaintiff filed a motion for contempt for the defendant's failure to obey the court's May 31, 1989 order that the defendant pay the $40,000. On October 2, 1990, the court found the defendant in contempt for failing to make that payment.

On October 9, 1990, the trial court denied the defendant's motion to compel and, in response to a motion by the defendant, stayed its enforcement of the plaintiff's motion for contempt pending this appeal. The defendant claims that the trial court improperly interpreted the judgment of dissolution in denying his motion to compel. He also claims that the court improperly found him in contempt.

"A judgment rendered in accordance with a stipulation of the parties is to be regarded and construed as a contract. See Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Albrecht v. Albrecht, 19 Conn.App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). The construction of such an agreement by the trial court is subject to our review under the clearly erroneous standard. Albrecht v. Albrecht, supra; see Lavigne v. Lavigne, 3 Conn.App. 423, 427, 488 A.2d 1290 (1985)." Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990).

The trial court construed the language of the original dissolution decree to require, as a condition precedent to the plaintiff's obligation to quitclaim her one-half interest in the St. Thomas property, that the defendant pay the Charter Oak lien before the bank took any action against the Gunn Mill Road property. ¹

The defendant asserts that this provision of the dissolution decree should have been construed to mean only that the husband's interest in the Simsbury, Canton and Virgin Islands properties must have been extinguished before the Charter Oak Bank took any action against the wife's property and, because his interest in the Simsbury and Canton properties had been extinguished in bankruptcy, the language of the decree has been satisfied. As to the St. Thomas property, the husband asserts that he cannot sell that property under Virgin Islands law without the written consent of the plaintiff. According to the defendant, the refusal of the plaintiff to consent prevented the defendant's compliance with the order to pay the plaintiff.

The defendant concedes that it would be unreasonable to construe the judgment as permitting him simply to alienate his interest in the Simsbury, Canton and St. Thomas properties with no corresponding obligation to pay the...