Opinion
FSTFA030195891S
10-05-2017
Lorraine Keogh v. William Keogh
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON POSTJUDGMENT MOTIONS
This memorandum of decision addresses motions #195.01, #198.00, #199.00, #200.00, #204.00. #210.00 and #227.00. Motion #211.00, relating to discovery issues, was also on the calendar, but it was not pursued by the parties.
Donna Nelson Heller, J.
The marriage of the plaintiff Lorraine Keogh and the defendant William Keogh was dissolved following a contested trial on September 30, 2004 (Harrigan, J.T.R.) (#168.10; #169.55). The court issued orders clarifying and modifying its decision on November 10, 2004 (#173.00). As discussed more fully below, the orders set forth in the dissolution judgment relating to (i) the defendant's alimony obligation to the plaintiff and (ii) the equitable distribution of certain marital assets are at issue in the motions presently before the court.
On September 9, 2014, the defendant moved by order to show cause for modification of the existing alimony and support orders, postjudgment (#195.01). On October 14, 2014, the plaintiff filed a motion for contempt, postjudgment, relating to the property distribution under the dissolution judgment (#198.00), and a motion for counsel fees, postjudgment (#199.00). The plaintiff filed a motion to modify alimony, postjudgment, on October 24, 2014 (#200.00). On March 5, 2015, the plaintiff filed a motion for contempt, postjudgment (#210.00). The defendant filed a motion for attorneys fees, postjudgment, on February 29, 2016 (#227.00).
The parties were before the court on May 9, 2017 for a hearing on these postjudgment motions. The hearing continued on May 10, 2017 and concluded on May 11, 2017. Both parties were represented by counsel. The court heard testimony from four witnesses, including the parties. The court reviewed the exhibits that were admitted into evidence, took judicial notice of the contents of the court file, and reserved decision at that time.
The court set a briefing schedule for the parties to file post-hearing memoranda. The plaintiff filed a post-hearing memorandum and an affidavit of attorneys fees on June 6, 2017 (#241.00; #242.00). The defendant filed a post-hearing memorandum and an affidavit of attorneys fees on June 7, 2017 (#243.00; #244.00).
I
The court will begin with the defendant's motion for modification of alimony and support, postjudgment (#195.01). The dissolution judgment provides in pertinent part that " [t]he defendant shall pay unallocated periodic alimony of $3,000 monthly due on the first day of each month until the death of either party, the remarriage of the plaintiff or her cohabitation as defined by Sec. 46b-86(b) Conn. Gen. Statutes and relevant case law. This order is modifiable as to amount." The defendant contends that the plaintiff has been cohabiting with other individuals since April 1, 2014, and, therefore, his alimony obligation to her has terminated pursuant to the dissolution judgment.
A
The plaintiff testified that she has resided in a variety of rental properties since the sale of the marital residence pursuant to the dissolution judgment. Her first rental was a property on Myrtle Street in Norwalk, Connecticut, for which she paid $2,300 per month in rent, plus utilities and insurance. She then moved to a rental property on Williams Street in Norwalk. The rent was approximately $2,000 to $2,100 per month, plus utilities (including cable and cell phone service).
Beginning on April 15, 2011, the plaintiff rented the upstairs apartment in a two-family house located at 9 Guyer Road in Westport, Connecticut (the Guyer Road property). The landlord resided in the downstairs apartment. The plaintiff paid $2,000 each month, plus utilities, cable, Internet, and insurance. The plaintiff said that the parties' three children--Danielle, Nicole, and Jackson --also resided with her in the Guyer Road property in 2011. The plaintiff was the only person obligated on the lease for the Guyer Road property at that time. The plaintiff testified that she paid all of the rent and utilities in 2012 and 2013 as well, when the rent increased to $2,400 per month.
Nicole and Danielle are twins. They were born on January 24, 1989. Jackson was born on March 29, 1994.
On April 1, 2014, Nicole was added as a tenant on the lease for the Guyer Road property. Nicole paid $850 to the landlord as her share of the rent. When the landlord vacated the downstairs apartment, Nicole and her dog moved downstairs. Danielle and her then-boyfriend Ray (he is now her husband) moved into the upstairs unit with the plaintiff. Danielle paid the plaintiff $1,150 for their share of the rent. Nicole and Danielle both contributed to the utilities for the Guyer Road property. The plaintiff, Nicole, and Danielle split the utilities three ways, but the plaintiff paid the cable bill and the insurance.
The plaintiff left the Guyer Road property in May 2015. She moved to another rental located at 7 Glenwood Avenue in Norwalk (the Glenwood Avenue rental), which she shared with an individual named Judie Szuets. Beginning May 1, 2015, she paid rent in the amount of $1,000 per month. She also spent $192 a month to store her belongings.
On May 1, 2016, the plaintiff rented an apartment on Cove Road in Norwalk (the Cove Road apartment). Her rent is $1,100 per month. She continues to pay rent there. The plaintiff testified that she has furnished the apartment with secondhand items from Craig's List. She does not have a bed in the Cove Road apartment. She uses a chaise lounge instead. She said that she gave most of her furniture away to Freecycle or to her children.
The plaintiff is in a relationship with an individual named Thomas Lee (Mr. Lee). She testified that she has been seeing Mr. Lee on and off for three years. She said that she first met him in the late summer of 2013 or 2014. She was living in the Guyer Road property at the time.
Mr. Lee has lived in a three-building condominium complex on Gregory Boulevard in Norwalk (the Gregory Boulevard complex) for the last ten to twelve years, according to the plaintiff. He owns his one-bedroom unit--Apartment G-7 (Mr. Lee's condominium). Mr. Lee's condominium is located in the middle building of the Gregory Boulevard complex.
The plaintiff testified that she stays at Mr. Lee's condominium a few times a month; otherwise, she said that she spends the night in the Cove Avenue apartment. She said that her schedule is different every week, and she does not have a set day to stay at Mr. Lee's condominium. She acknowledged that she might have stayed there two to four times a week, but she could not recall the exact days.
Wendy Kleinknecht, a licensed private investigator retained by the defendant, testified regarding her surveillance of the plaintiff between February 2016 and June 2016. She said that the defendant provided her with the plaintiff's photograph, information regarding plaintiff's vehicles--a Toyota RAV-4 (the Toyota) and a Volkswagen Beetle --and the addresses of the Glenwood Avenue rental and Mr. Lee's condominium in advance of the surveillance.
The plaintiff testified that the Volkswagen Beetle works from time to time. She drives the Toyota predominantly in the winter months. In the summer she lives to drive the Volkswagen Beetle.
The defendant first supplied Ms. Kleinknecht with the wrong street number for the Glenwood Avenue rental, but he subsequently provided the correct information.
Ms. Kleinknecht testified that she began the surveillance assignment in the first week of February 2016 by visiting the locations and identifying the property entrances and exits. She said it was her usual practice to go to the location a minimum of twice a day for several weeks. Mr. Kleinknecht was familiar with the Gregory Boulevard complex because she had friends who lived there.
Ms. Kleinknecht began the actual surveillance on February 9, 2016. She located the Toyota in the parking lot of the Gregory Boulevard complex at 7:21 a.m. that day. When she returned at 9:12 a.m., the Toyota was in the same location, next to a dumpster at the far end of the parking lot. Ms. Kleinknecht noted that one could easily have missed seeing the Toyota due to where it was parked.
Ms. Kleinknecht continued the surveillance on February 18, 2016. She observed the Toyota in the parking lot of the Gregory Boulevard complex at 8:05 a.m. that day. She also saw the Toyota there at 11:15 a.m. on February 19, 2016. On February 20, 2016, Ms. Kleinknecht observed the Toyota in the Gregory Boulevard complex parking lot at 2:15 p.m. and at 7:00 p.m. On February 21, 2016, she saw the Toyota in the parking lot at 6:00 p.m. and at 10:30 p.m. On February 22, 2016, she observed the Toyota in the parking lot at 8:26 a.m. and at 11:30 p.m. She saw the Toyota there on February 23, 2016 as well.
Ms. Kleinknecht observed the Toyota in the Gregory Boulevard complex parking lot at 12:08 a.m. on February 24, 2016. She saw the Toyota when she returned to the Gregory Boulevard complex at 8:08 a.m. She also noted the silhouette of a female person in the window of Mr. Lee's condominium at that time. At 5:16 p.m., Ms. Kleinknecht saw a female person through the shades of Mr. Lee's condominium. She located the Toyota in the Gregory Boulevard complex parking lot at 9:20 p.m.
On February 25, 2016, Ms. Kleinknecht observed the Toyota in the parking lot at 8:06 a.m. and 3:51 p.m. She also saw the Toyota there on February 26, 2016 at 9:09 a.m. and on February 27, 2016 at 6:19 p.m. Ms. Kleinknecht observed the Toyota in the Gregory Boulevard complex parking lot on February 28, 2016 at 4:26 p.m. and at 11:45 p.m., and on February 29, 2016 at 5:41 p.m.
On March 1, 2016, Ms. Kleinknecht located the Toyota in the Gregory Boulevard complex parking lot at 7:20 a.m. Later that day, she delivered flowers for the plaintiff to Mr. Lee's condominium in order to verify that the plaintiff was residing there.
Ms. Kleinknecht said that this exercise is called " pretexting" in the investigations business.
Ms. Kleinknecht testified that at approximately 3:30 p.m. on March 1, 2016, she arrived at the G entrance to the building in which Mr. Lee's condominium was located. She pressed a neighbor's doorbell. The neighbor let her in and pointed her to the door of Mr. Lee's condominium. Ms. Kleinknecht knocked on the door, and a woman answered. Ms. Kleinknecht said that she had a flower delivery for Lorraine St. John, and the woman on the other side of the door said that she was Lorraine St. John. Ms. Kleinknecht engaged the plaintiff in a conversation, and she asked the plaintiff if she lived in the apartment. The plaintiff responded, " Yes." She asked Ms. Kleinknecht to wait a moment. Ms. Kleinknecht quickly left because she assumed that the plaintiff was going to tip her.
Ms. Kleinknecht identified the plaintiff in the courtroom as the woman who opened the door to Mr. Lee's condominium.
Ms. Kleinknecht returned to the Gregory Boulevard complex on April 3, 2016 and located the Toyota in the parking lot at 4:07 p.m. The last time she went to the Gregory Boulevard complex was on June 1, 2016. She observed the Toyota in the parking lot at 3:08 p.m. that day.
Ms. Kleinknecht also went to the Glenwood Avenue rental on three occasions. She did not see the Toyota or the plaintiff's Volkswagen Beetle at that location. She said that she only visited the Glenwood Avenue rental three times because, in her professional experience, the Toyota was located in the parking lot at the Gregory Boulevard complex. The court credits Ms. Kleinknecht's testimony.
The court finds that the plaintiff has been living with another person since her daughter Nicole was added to the lease for the Guyer Road property on April 1, 2014. The plaintiff lived with Nicole and Danielle and Danielle's boyfriend Ray from April 2014 to May 2015, when the plaintiff moved into the Glenwood Avenue rental as Ms. Szuets's roommate.
At some point prior to February 2016, while the plaintiff still maintained the Glenwood Avenue property as her residence address, the plaintiff began living with Mr. Lee in Mr. Lee's condominium in the Gregory Boulevard complex. The plaintiff has continued to live with Mr. Lee despite changing her residence address to the Cove Road apartment on May 1, 2016. The court finds that the plaintiff lives in Mr. Lee's condominium in the Gregory Boulevard complex, as she told Ms. Kleinknecht on March 1, 2016.
B
The plaintiff's rent obligation for the Guyer Road property was reduced significantly on April 1, 2014 when Nicole was added to the lease and began to pay part of the rent. Danielle's $1,150 contribution to the rent, beginning on May 1, 2014, also benefited the plaintiff financially. The plaintiff continued to have the benefit of paying a lower rent when she moved to the Glenwood Avenue rental on May 1, 2015 and shared an apartment with Ms. Szuets.
The plaintiff's living arrangement with Mr. Lee also benefits her financially, but in a somewhat different respect. Mr. Lee did not and does not pay part of the plaintiff's rent--whether for the Glenwood Avenue rental or the Cove Road apartment--but he affords her a nicer place to live, with more space and better amenities, at no cost to her at all. The plaintiff can maintain a barely furnished apartment for her occasional use--otherwise, it functions a mail drop--while she lives in Mr. Lee's condominium without being obligated to pay any of the condominium expenses.
In addition, the plaintiff's relationship with Mr. Lee provides her with a more comfortable lifestyle. When she travels with him to Florida, she does not pay for her plane tickets (if they fly) or for gas and tolls (if they drive in Mr. Lee's vehicle). The plaintiff does not pay her own travel expenses when she and Mr. Lee go on vacation; Mr. Lee pays them on her behalf. When the plaintiff stays in Mr. Lee's Florida time share, in his Florida condominium, or on his boat, she does not pay any of their expenses. The plaintiff does not pay for rental cars or restaurant dinners when she is with Mr. Lee in Florida or on vacation. She said that she buys groceries and cooks on occasion.
The court finds that the plaintiff's living arrangements with her daughters and with Ms. Szuets caused such a change of circumstances as to alter her financial needs because another person or persons was paying part of her housing expenses--effectively cutting them in half. The court also finds that the plaintiff's living arrangement with Mr. Lee has changed her financial needs and circumstances even more significantly because the plaintiff is residing in Mr. Lee's condominium and traveling with him at his sole expense and at no cost to her.
C
General Statutes § 46b-86(b) provides in pertinent part that " [i]n an action for divorce, dissolution of marriage, legal separation or annulment brought by a spouse, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other spouse, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party." General Statutes § 46b-86(b). The statute does not define, or even include, the word " cohabitation, " but it is consistently referred to as " the cohabitation statute." Knapp v. Knapp, 270 Conn. 815, 817, n.1, 856 A.2d 358 (2004); see Kaplan v. Kaplan, 185 Conn. 42, 45-46, 440 A.2d 252 (1981), appeal after remand, 186 Conn. 387, 441 A.2d 629 (1982) (noting that the " General Assembly chose the broader language of 'living with another person' rather than 'cohabitation' . . .").
Citing the decision of our Supreme Court in Nation-Bailey v. Bailey, 316 Conn. 182, 112 A.3d 144, 151 (2015), the defendant contends that his alimony obligation to the plaintiff has terminated pursuant to the express language of the dissolution judgment, which provides that the defendant is to pay alimony of $3,000 per month to the plaintiff until the death of either party, the remarriage of the plaintiff or her cohabitation as defined by General Statutes § 46b-86(b) or relevant case law. In Nation-Bailey, the court held that where a separation agreement incorporated into a dissolution judgment provided that alimony was to be paid until, inter alia, the plaintiff's cohabitation as defined by § 46b-86(b), the defendant's obligation to pay alimony terminated automatically--and permanently--upon such cohabitation.
In accordance with § 46b-86(b), the term " cohabitation" is to be construed " to include the financial impact of the living arrangement on the cohabiting spouse . . ." DeMaria v. DeMaria, 247 Conn. 715, 720, 724 A.2d 1088 (1999). In determining whether a party has engaged in cohabitation as defined by § 46b-86(b), the court is to consider all of the facts and circumstances and whether they show that the party receiving alimony is living with another person, and that such living arrangement has altered the financial needs of that party. Id. at 717.
To satisfy the first prong of General Statutes § 46b-86(b), the defendant must show that the plaintiff is living with another individual. For the defendant to prevail, however, he must further demonstrate that the plaintiff's financial needs have been changed by virtue of this living arrangement. " If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient's financial needs have been altered as a result of the cohabitation." (Citation omitted.) Lehan v. Lehan, 118 Conn.App. 685, 695, 985 A.2d 378 (2010). The alteration in the financial needs of the recipient need not be substantial. Blum v. Blum, 109 Conn.App. 316, 324, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).
The court finds that the defendant has established both prongs of the cohabitation standard under General Statutes § 46b-86(b). The plaintiff has engaged in cohabitation as defined by § 46b-86(b) since April 1, 2014, when her daughter Nicole was added as a tenant on the lease for the Guyer Road property and began to contribute $850 to the rent each month. Accordingly, the defendant's alimony obligation to the plaintiff automatically terminated as of April 1, 2014, pursuant to the dissolution judgment.
The dissolution judgment was entered on September 30, 2004, more than ten years before the decision of our Supreme Court in Nation-Bailey . The parties have not suggested that the court should construe Judge Harrigan's ruling differently because it predates Nation-Bailey, or because it did not incorporate a separation agreement between the parties unlike the dissolution judgment in Nation-Bailey . The court has found Nation-Bailey to be directly controlling authority and has ruled accordingly.
II
In the alternative, the defendant claims that there has been a substantial change in the parties' financial circumstances, thus warranting a downward modification in his alimony obligation to the plaintiff. As the court has found that the defendant's alimony obligation to the plaintiff terminated automatically upon her cohabitation, the court does not need to reach this issue. So that there is no question with respect to the merits of this argument, however, the court will address it briefly below.
A
The plaintiff was not employed outside of the home at the time of the trial of this dissolution action. Her June 4, 2004 financial affidavit (#154.10) reflected no earned income from employment. She reported monthly living expenses in the amount of $23,861, liabilities of $10,000, and assets valued at $478,235 on her financial affidavit.
The defendant was the principal of Novaworks Computer Corporation, a Subchapter S corporation, at the time of the dissolution trial. According to his May 18, 2004 financial affidavit (#155.10), his gross monthly income from employment was $6,250, he earned dividends of $100 a month, and his net monthly income was $5,008. The defendant reported total monthly expenses in the amount of $19,162, liabilities (exclusive of the mortgage on the marital residence) of $24,517, and assets valued at $1,010,200.
Both parties' financial circumstances changed in the years following the divorce. The plaintiff's March 23, 2015 financial affidavit (#215.00) reflected gross weekly income of $319, not including alimony received in the amount of $692 a week. The plaintiff was employed at Super Office/Online River, LLC at that time, earning a gross weekly salary of $205. She reported total weekly expenses of $1,768. She had assets valued at $22,780, and liabilities of $708.
According to the plaintiff's current financial affidavit, filed in court on May 9, 2017, her gross weekly income from employment is $404. The plaintiff testified that she worked at Online River, LLC and at Hole-In-Won. She also receives alimony in the amount of $692 per week. Her net weekly income is $683. She has total weekly expenses and liabilities of $1,684. Her assets are valued at $5,849, and her liabilities total $58,995. In addition, Mr. Lee pays many of the plaintiff's living expenses. She lives in Mr. Lee's condominium and she travels and vacations with him at his expense.
The defendant's February 17, 2015 financial affidavit reflected gross weekly income in the amount of $169, comprised of a $100 weekly distribution from Novaworks and $69 in wages from 32-36 Wall St., Inc. The defendant reported net weekly income of $161, total weekly expenses and liabilities of $2,107, assets valued at $538.291, and liabilities totaling $73,876.
The defendant's current financial affidavit, filed in court on May 9, 2017, reflects no weekly income. Novaworks is not in business, although it remains a legal entity. The defendant is not employed outside of the home. He is primarily responsible for the care of his eleven-year-old daughter Ava. The defendant reports total weekly expenses and liabilities of $1,806, assets valued at $382,787, and liabilities totaling $139,412. His debts include $100,000 due on Novaworks' Chase line of credit for which he is personally liable.
The defendant suffers from severe spinal stenosis, vision problems, and mental health issues. He has applied for Social Security disability benefits. As of the last hearing date, the defendant had not heard from the Social Security Administration regarding his application. He said that he had looked into applying for unemployment compensation, but that business owners were not eligible for unemployment if the business is still in existence.
The defendant's partner Amy John is employed full time and pays the household expenses. The defendant testified that half of the expenses that Ms. John pays are deducted from his share of the equity in their house.
B
Pursuant to General Statutes § 46b-86(a), " [u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party . . . No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50. If a court, after hearing, finds that a substantial change in circumstances of either party has occurred, the court shall determine what modification of alimony, if any, is appropriate, considering the criteria set forth in section 46b-82." General Statutes § 46b-86(a).
" As to the substantial change of circumstances provision of § 46b-86(a), [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and . . . make an order for modification . . . A party moving for a modification of [an alimony] order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances." (Internal quotation marks omitted.) Light v. Grimes, 156 Conn.App. 53, 64-65, 111 A.3d 551 (2015).
The court finds that there has been a substantial change in the financial circumstances of both parties since the entry of the dissolution judgment that warrants modification of the existing alimony award pursuant to General Statutes § 46b-86. The plaintiff is now employed; the defendant's business has collapsed; he is not working outside of the home; and the plaintiff has cohabitated with another person or persons since April 1, 2014.
" Essentially, subsection (b) of § 46b-86, following a finding that a party is living with another individual, allows the court to modify, reduce, suspend or terminate the payment of alimony if there is a corresponding change in financial circumstances." Gervais v. Gervais, 91 Conn.App. 840, 853, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).
III
The plaintiff filed a motion for modification, postjudgment (#200.00) in which she seeks an upward modification of alimony award due to a substantial change in the circumstances of the parties. In view of the court's finding that the defendant's alimony obligation to the plaintiff terminated as of April 1, 2014 pursuant to the dissolution judgment, the plaintiff's motion for modification, postjudgment is denied.
IV
The plaintiff has moved for an order holding the defendant in contempt, postjudgment, for his failure to provide the plaintiff with her share of certain marital assets pursuant to the dissolution judgment (#198.00). The trial court ordered that " [t]he following shall be divided equally: E*Trade brokerage account; the defendant's IRA account, [and] . . . shares in SBC . . ." The plaintiff claims that she has not received half of the E*Trade brokerage account, the defendant's IRA, or the SBC shares, as ordered by the court, since the date of entry of the dissolution judgment. In response, the defendant maintains that he has been unable to carry out the court's orders because the plaintiff failed to establish her own brokerage account and IRA so that she could receive her share of these marital assets.
In her motion for contempt, postjudgment, the plaintiff also alleges that the defendant had failed to provide her with one-half of the net proceeds from the sale of the property located at 525 West 23rd Street, New York, New York and one-half of his shares in Marathon Oil as ordered in the dissolution judgment. The plaintiff did not prosecute these claims during the hearing, and it appears that both are now moot.
A
The two accounts at issue are both E*Trade accounts: the defendant has an E*Trade brokerage account and an E*Trade IRA. At the time the dissolution judgment was entered, the E*Trade brokerage account had a value of $31,678.45 and the E*Trade IRA had a value of $25,808.92. The defendant testified that he did not deposit additional funds into either account following the divorce but he reinvested the dividends earned into the accounts. The court credits his testimony that he attempted, without success, to transfer one-half of each account to the plaintiff, in accordance with the dissolution judgment, but was unable to do so because the plaintiff did not set up her own accounts on a timely basis.
The defendant began to make withdrawals from the E*Trade brokerage account in July 2013. He withdrew a total of $239,685 from the E*Trade brokerage account between July 2013 and June 2014. He deposited the SBC shares into the E*Trade brokerage account a year later.
The defendant initiated withdrawals from the E*Trade IRA in September 2015. He made the last withdrawal in November 2016. He withdrew a total of $118,900 from the E*Trade IRA between September 2015 and November 2016. The balance in the E*Trade IRA is $78,946 according to the defendant's current financial affidavit.
On June 24, 2015, the defendant transferred the SBC shares (which were AT& T shares at that point as a result of the merger of SBC and AT& T) to the E*Trade brokerage account. He sold the SBC shares for $12,468. He withdrew half of this amount and left the balance in the E*Trade brokerage account. Those funds remain in the E*Trade brokerage account.
B
" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Citation omitted; internal quotation marks omitted.) Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992). " Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts . . . Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt . . ." (Emphasis in original; citations omitted; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). " In a civil contempt proceeding, the movant has the burden of establishing . . . the existence of a court order and noncompliance with that order . . ." (Citation omitted; internal quotation marks omitted.) Marshall v. Marshall, 151 Conn.App. 638, 651, 97 A.3d 1 (2014). Indirect civil contempt, as is alleged here, must be proven by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015). " To constitute contempt, a party's conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt." (Citations omitted; internal quotation marks omitted.) Oldani v. Oldani, 132 Conn.App. 609, 625-26, 34 A.3d 407 (2011), abrogated in part on other grounds by Brody v. Brody, supra, 315 Conn. at 316. " A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).
The court finds that the plaintiff has not met her burden of proving by clear and convincing evidence that the defendant is in wilful violation of a clear and unambiguous court order. Although the plaintiff established that the defendant had notice of the orders set forth in the dissolution judgment, and that the orders are clear and unambiguous, she has not shown that the defendant wilfully failed to comply with such orders, particularly where she did not open her own brokerage account and IRA so that the defendant could effectuate the court's orders.
C
While the court declines to hold the defendant in contempt for failing to transfer half of his E*Trade brokerage account, half of his E*Trade IRA, and half of the SBC shares to the plaintiff, the fact remains that the plaintiff has not yet received her share of these marital assets more than thirteen years after the dissolution judgment was entered. The defendant contends that the plaintiff is only entitled to receive half of the E*Trade brokerage account and the E*Trade IRA, valued as of the date of entry of the dissolution judgment, and the remaining SBC shares. The plaintiff argues that she should receive half of the total amount of the funds that the defendant withdrew from each account, together with half of the remaining balance in the E*Trade IRA and half of the amount that the defendant received when he sold the SBC shares.
The plaintiff was vested with the ownership of half of the defendant's E*Trade brokerage account, his E*Trade IRA, and the SBC shares upon the entry of the dissolution judgment. From that date forward, those assets--and the capital gains or losses attributable to those assets--belonged to her. See Gay v. Gay, 70 Conn.App. 772, 780, 800 A.2d 1231 (2002), aff'd in part on other grounds, 266 Conn. 641, 835 A.2d 1 (2003). Therefore, the plaintiff is entitled to half of the funds that the defendant withdrew from the E*Trade brokerage account. The plaintiff is also entitled to half of the funds that the defendant withdrew from the E*Trade IRA, half of the funds remaining in the E*Trade IRA, and half of the net proceeds of the sale of the SBC shares.
Although the defendant testified that he incurred some tax liability as a result of capital gains in the E*Trade brokerage account, he offered no testimony regarding the tax implications of his withdrawing funds from his E*Trade IRA. The parties did not address the issue of whether the amounts due to the plaintiff should be adjusted so that any tax liability from capital gains and/or the tax penalty for the defendant's early withdrawal of funds from an IRA are shared equally. Accordingly, the court will not enter any orders in this regard.
D
The defendant asks that any amount that he owes to the plaintiff for her half of the E*Trade brokerage account, the E*Trade IRA, and the SBC shares be set off against the sum that the plaintiff owes to him for the alimony that he paid her after the alimony terminated by reason of her cohabitation on April 1, 2014. Under the circumstances of this case, however, a set off is neither appropriate nor permissible. The plaintiff is seeking to obtain the assets that were distributed to her in the dissolution judgment. If the court were to permit the defendant to set off his obligation to her against the amount that she owes to him, it would constitute an improper postjudgment modification of a property distribution. Accordingly, the parties' obligations to each other pursuant to the orders entered below shall be satisfied separately.
E
The plaintiff also contends that the defendant comes before the court with unclean hands because he has failed to provide the plaintiff with her share of these marital assets as required by the dissolution judgment. She claims that the defendant is, therefore, barred from proceeding on his motion for modification, postjudgment, by the unclean hands doctrine. " For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands." Hill v. Raffone, 103 Conn.App. 737, 745, 930 A.2d 788 (2007). " [I]t is axiomatic that he who seeks equity must do equity." Friedlander v. Friedlander, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-FA-05-4005194-S (Feb. 15, 2010, Shay, J.). The court finds that the defendant does not have unclean hands so as to bar him from prosecuting his motion for modification, postjudgment.
V
The defendant had a Transamerica ten-year $1,000,000 term life insurance policy at the time of the parties' divorce. The dissolution judgment provided that " [t]he defendant's $1,000,000 term life insurance policy shall designate the plaintiff and each of the three children as primary beneficiaries of 25%. The defendant may amend each child's interest when § 46b-56c no longer applies and he may amend the plaintiff's interest upon any termination or change in his alimony obligation. This order is modifiable under appropriate circumstances."
The defendant testified that he complied with these orders and maintained the Transamerica policy until it expired in 2011. The plaintiff contends that the defendant was required to renew the policy and keep it in effect. She asks the court to hold the defendant in contempt for his failure to do so.
The court finds that the plaintiff has not sustained her burden of proving by clear and convincing evidence that the defendant wilfully failed to comply with a clear and unambiguous order of the court when he did not renew his Transamerica life insurance policy upon the expiration of its ten-year term. In view of the orders set forth above terminating the defendant's alimony obligation to the plaintiff, the defendant shall not be required to reinstate or replace the life insurance policy now.
VI
Both parties have filed motions for attorneys fees, postjudgment, pursuant to General Statutes § 46b-62 (#199.00; #227.00). Having reviewed the parties' respective financial abilities and the relevant statutory criteria, however, the court has determined that each party should pay his or her attorneys fees, except as set forth below.
In her response to the defendant's request to admit, dated October 31, 2014, the plaintiff denied the request that asked her to admit the following: " The plaintiff, LORRAINE KEOGH, (a/k/a LORRAINE ST. JOHN), is living with Tom Lee, or another person, as the phrase 'is living with' is used in Connecticut General Statutes Section 46b-86(b)." The defendant contends that he is entitled to recover his attorneys fees because he has proven that the plaintiff has cohabited with another person or persons since April 1, 2014.
Practice Book § 13-25 provides that " [i]f a party fails to admit the genuineness of any document or the truth of any matter as requested herein, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, such party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorneys fees. The judicial authority shall make the order unless it finds that such failure to admit was reasonable." Practice Book § 13-25. The plaintiff denied this request to admit. She further stated that " [t]he plaintiff's 2 adult daughters reside at her home, but the plaintiff does not consider this to be cohabitation under the statute." As set forth above, the defendant proved that the plaintiff was cohabiting as defined by General Statutes § 46b-86(b).
The defendant has not submitted an affidavit limited to the attorneys fees and expenses that he incurred to prove the plaintiff's cohabitation. Therefore, the record shall be opened for the defendant to submit an affidavit of the attorneys fees and expenses that he seeks pursuant to Practice Book § 13-25. Further proceedings will be scheduled thereafter.
VII
The court has fully considered the applicable statutes, the relevant case law, the evidence, the demeanor and the credibility of the parties, and the contents of the court file, including the dissolution judgment, in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.
1. The defendant's motion for modification of the existing alimony and support orders, postjudgment (#195.01) is hereby GRANTED. It is further ORDERED that the plaintiff shall repay to the defendant in full the alimony that he paid to her from and after April 1, 2014, that date upon which his alimony obligation to her terminated pursuant to the dissolution judgment.
2. The plaintiff's motion for contempt, postjudgment, relating to the property distribution under the dissolution judgment (#198.00), is hereby DENIED. It is further ORDERED that the defendant shall pay to the plaintiff half of the funds that the defendant withdrew from his E*Trade brokerage account; half of the funds that the defendant withdrew from his E*Trade IRA; half of the remaining balance in the E*Trade IRA; and half of the value of the SBC shares.
3. The plaintiff's motion for attorneys fees, postjudgment (#199.00), is hereby DENIED.
4. The plaintiff's motion to modify alimony, postjudgment (#200.00) is hereby DENIED.
5. The plaintiff's motion for contempt, postjudgment (#210.00) is hereby DENIED.
6. The defendant's motion for attorneys fees, postjudgment (#227.00) is hereby DENIED except to the extent that the defendant seeks to recover the attorneys fees and expenses that he incurred to prove the plaintiff's cohabitation, as to which the court reserves decision. It is further ORDERED that the record is opened for the defendant to submit an affidavit of the attorneys fees and expenses he seeks pursuant to Practice Book § 13-25. The affidavit shall be filed on or before November 6, 2017. Further proceedings will be scheduled thereafter.