Giordano v. Giordano

203 Conn.App. 652

249 A.3d 363

Renee GIORDANO

v.Carl V. GIORDANO

AC 42737

Appellate Court of Connecticut.

Argued January 7, 2021

Officially released April 6, 2021

Carl V. Giordano, self-represented, the appellant (defendant).

Steven R. Dembo, Hartford, with whom were Caitlin E. Kozloski, Hartford, and, on the brief, P. Jo Anne Burgh, Glastonbury, for the appellee (plaintiff).

Prescott, Moll and Suarez, Js.

MOLL, J.

In this dissolution matter, the defendant, Carl V. Giordano, appeals from the judgment of the trial court granting two postjudgment motions filed by the plaintiff, Renee Giordano. On appeal, the defendant claims that the court improperly granted the plaintiff's (1) motion for contempt and (2) motion for appellate attorney's fees.

We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The parties were married in 1992. In 2004, the plaintiff commenced the present dissolution action against the defendant. In October, 2005, the trial court, Solomon, J ., rendered a judgment of dissolution, which incorporated a separation agreement executed by the parties. Under article VI of the separation agreement, titled "Property Settlement," the defendant was required to pay the plaintiff $425,000, in various installments, in exchange for retaining his ownership interests in certain commercial properties. In addition, article VI provided that, "[i]f the [defendant] sells, transfers or otherwise divests himself of any of his interest in [the commercial properties], he shall immediately pay the [plaintiff] any funds due her at that time so that she is paid in full."

In 2009, the plaintiff filed a postjudgment amended motion for contempt, asserting that the defendant had sold the commercial properties in a "like-kind" exchange; see generally 26 U.S.C. § 1031 (2018) ; and, as a result, he was obligated to make immediate payment of the sums owed to the plaintiff in accordance with article VI of the separation agreement. The trial court, Frazzini, J. , granted the motion for contempt, and this court affirmed the judgment of contempt on appeal. See Giordano v. Giordano , 127 Conn. App. 498, 499, 14 A.3d 1058 (2011).

Following this court's decision in Giordano v. Giordano , supra, 127 Conn. App. 498, 14 A.3d 1058, the parties entered into an agreement, dated May 5, 2011, for the purpose of "settling all of the claims and demands which each may have against the other arising from the [j]udgment dissolving their marriage and all subsequent court matters as it relates to the property settlement." The agreement was entered as a court order on June 1, 2011 (June, 2011 order). Pursuant to the June, 2011 order, the defendant was required to "satisfy his obligations to pay to the [p]laintiff a property settlement per [a]rticle IV of the [j]udgment of [d]issolution, by payments to the [p]laintiff as outlined herein, totaling $350,000." The June, 2011 order provided that $175,000 of the $350,000 owed to the plaintiff would be paid from the sale of the defendant's interest in certain real estate in East Windsor. That particular payment is not at issue in this appeal. The June, 2011 order further provided that the remaining $175,000 would be paid to the plaintiff as lump sum alimony. Such alimony was ordered to be paid at a rate of $200 per week for one year commencing upon the termination of the periodic alimony orders in place at the time, which was expected to occur in April, 2012, and, thereafter, at a rate of $300 per week until the sum was paid in full. The defendant was also required to make payments toward the foregoing lump sum alimony obligation in the event he received certain monies described in the June, 2011 order.

On February 8, 2019, the plaintiff, representing herself, filed the postjudgment motion for contempt at issue in this appeal.¹ The plaintiff contended that the defendant (1) owed her a balance of $62,510 in lump sum alimony and (2) had failed to remit to her the prior three $300 weekly payments owed under the June, 2011 order. On March 12, 2019, following an evidentiary hearing at which both parties were self-represented, the court orally granted the motion for contempt. The same day, the court issued a written order setting forth its decision. As relief, the court ordered the defendant to pay the plaintiff (1) $2745 on or before March 15, 2019, and (2) $1300 per month starting on April 1, 2019, continuing until the outstanding lump sum alimony due to the plaintiff was paid off on February 1, 2023. On March 26, 2019, the defendant filed this appeal from the judgment of contempt.

On April 3, 2019, the plaintiff, represented by counsel, filed a motion for appellate attorney's fees. On April 4, 2019, the defendant, representing himself, filed an objection. On May 1, 2019, following an evidentiary hearing, the court orally granted the motion, awarding the plaintiff $10,000 in attorney's fees to be paid by the defendant at a rate of $100 per week.² On May 9, 2019, the defendant amended this appeal to encompass the court's award of attorney's fees. Additional facts and procedural history will be set forth as necessary.

I

The defendant's first claim is that the trial court improperly granted the plaintiff's postjudgment motion for contempt. We disagree.

"Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. ... Our review of a trial court's judgment of civil contempt involves a two part inquiry. [W]e first consider the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. ... Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court's determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding. ... Whether a party's violation was wilful depends on the circumstances of the particular case and, ultimately, is a factual question committed to the sound discretion of the trial court." (Citations omitted; internal quotation marks omitted.) Hall v. Hall , 335 Conn. 377, 391–92, 238 A.3d 687 (2020). "[T]his court will not disturb the trial court's orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... [E]very reasonable presumption will be given in favor of the trial court's ruling, and [n]othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference." (Internal quotation marks omitted.) Casiraghi v. Casiraghi , 200 Conn. App. 771, 787, 241 A.3d 717 (2020).

The following additional facts are relevant to our resolution of the defendant's claim. During the evidentiary hearing on the plaintiff's motion for contempt, the court heard testimony from the parties. In addition, the court admitted into evidence an accounting offered and prepared by the plaintiff, which reflected payments made by the defendant against the $175,000 in lump sum alimony owed to the plaintiff under the June, 2011 order (plaintiff's accounting). The plaintiff's accounting indicated that the defendant (1) made a $12,090 payment to her in 2013, and (2) made payments to her from April, 2012, through 2018, in either $200 or $300 weekly increments in accordance with the June, 2011 order, but paid her only $900 in 2019, leaving an outstanding balance of $62,510 in lump sum alimony.

The court also admitted into evidence several exhibits offered by the defendant, including (1) two letters, dated January 24, 2019, and February 5, 2019, respectively, which the defendant had mailed to the plaintiff, and (2) an accounting prepared by the defendant (defendant's accounting). In the January 24, 2019 letter, the defendant wrote, inter alia, that he was "about 95 [percent] certain" that he had overpaid the plaintiff by approximately $22,190, and he asked the plaintiff to review an attached accounting that he had prepared that purportedly supported his calculations. He further wrote that "[o]f course it is also possible that I am wrong and if that is the case of course I would resume paying you what I owe you ... but I do not plan to pay you if indeed I have already overpaid as I have stated herein." In the February 5, 2019 letter, the defendant wrote, inter alia, that he was "98 [percent] sure" of the data he had provided to the plaintiff in the prior letter, and he asked the plaintiff to respond indicating whether she agreed with his claim. It is undisputed that the plaintiff received, but did not reply to, the letters.

The defendant's accounting³ reflected various payments made by the defendant, including some that predated the June, 2011 order, which he credited against the lump sum alimony owed to the plaintiff. According to his calculations, the defendant either overpaid the plaintiff by $22,190 or owed her $2810, depending on whether a certain $25,000 payment could be credited against the lump sum alimony award.

In granting the plaintiff's motion for contempt, the court determined that (1) the June, 2011 order was clear and unambiguous in requiring the defendant, starting in April, 2013, to pay the plaintiff $300 per week until the $175,000 lump sum alimony award was paid in full, and (2) the defendant wilfully violated the order. In addition, the court found that (1) the defendant was not credible, (2) the defendant had the ability to pay, and (3) the plaintiff was credible and the plaintiff's accounting was correct.

The defendant does not challenge the court's conclusion that the June, 2011 order was clear and...