Ill v. Manzo-Ill

210 Conn.App. 364

270 A.3d 108

Charles ILL

v.Ellen MANZO-ILL

AC 42735

Appellate Court of Connecticut.

Argued May 13, 2021

Officially released February 1, 2022

Norman A. Roberts II, Stamford, with whom, on the brief, was Anthony L. Cenatiempo, for the appellant (plaintiff).

Kenneth J. Bartschi, with whom were Brendon P. Levesque, Hartford, James H. Lee, Fairfield, and, on the brief, Maria McKeon, for the appellee (defendant).

Prescott, Alexander and Suarez, Js.

SUAREZ, J.

In this postdissolution matter, the plaintiff, Charles Ill, appeals from the judgment of the trial court finding him in contempt and subsequently awarding interest and attorney's fees to the defendant, Ellen Manzo-Ill. On appeal, the plaintiff claims that the court improperly (1) found him to be in contempt, (2) ordered him to pay the defendant the value of certain shares of a private corporation, (3) awarded the defendant postjudgment interest, (4) awarded the defendant attorney's fees, and (5) by virtue of its scheduling order, limited his defense at the contempt hearing and the attorney's fees hearing. We agree with the plaintiff's fifth claim and reverse the judgments of the court and remand the case for a new contempt hearing.

The following undisputed facts and procedural history are relevant to this appeal. On August 19, 2008, following a trial that took place over the course of five days, the court, Shay , J. , dissolved the marriage of the parties and entered orders related to alimony and the division of the parties’ marital property. These orders, which were clarified by the court on October 3, 2008, provided in relevant part that "[t]he following investment accounts, whether in sole or joint names shall be divided as follows: Within two ... weeks from the date of this order, the parties shall divide the stocks, bonds, and cash in the Glenmede CLI account (standing in the sole name of the [plaintiff], less that portion attributed to the inherited IRA in the approximate amount of $72,000); Glenmede CLI/EMI account (joint); Wachovia Securities account ([standing in the sole name of the plaintiff]); Avaya/Sierra Holdings ([plaintiff]/sole); Gabelli CLI/EMI account (joint); Assets Plus Investment account; and Deutsche Bank Alex Brown (joint BEA stock) on a pro-rata basis 60 [percent] to the [defendant] and 40 [percent] to the [plaintiff]. Any fractional shares shall be sold and the net proceeds divided in the same proportion." (Emphasis omitted.) The court further ordered that "[t]he parties shall cooperate in the preparation and filing of the 2007 state and federal income tax returns. Any tax due, including interest and penalties for late filing, shall be paid from joint funds, and any refunds shall be divided equally." (Emphasis omitted.)

Neither party was satisfied with the terms of the dissolution judgment. This led to extensive postjudgment litigation. Much of this litigation was detailed in an earlier appeal, Ill v. Manzo-Ill , 166 Conn. App. 809, 142 A.3d 1176 (2016). For example, on October 23, 2008, the plaintiff filed a direct appeal from the judgment of dissolution, which later was withdrawn on June 8, 2010. Id., at 813, 142 A.3d 1176. On September 19, 2008, the defendant filed a motion to open the judgment of dissolution, which the court denied on April 20, 2010. Id. The defendant filed a motion to reargue the court's denial of her motion to open the judgment, which the court denied on May 24, 2010. Id. On June 14, 2010, the defendant filed a motion for extension of time to file an appeal from the court's denial of her motion to the open the judgment of dissolution, but she subsequently withdrew the motion on June 24, 2010, and did not bring an appeal from the court's denial of that motion. Id.

On April 6, 2010, while her motion to open the judgment was pending, the defendant filed a motion for modification of alimony on the basis of a substantial change in the parties’ circumstances. Id., at 813–14, 142 A.3d 1176. Specifically, the defendant alleged that, "[s]ince the date of the [judgment of dissolution], the circumstances concerning this case have changed substantially in that the plaintiff is currently employed and earning an income, while the defendant is not currently employed, and that a substantial amount of time has elapsed since the judgment was entered and that as a result of the plaintiff's appeal of the judgment, the defendant has been denied access to the funds necessary to support herself." (Internal quotation marks omitted.) Id., at 814, 142 A.3d 1176.

Following a protracted course of litigation with respect to the motion for modification, on May 14, 2014, the trial court, Heller , J ., granted the plaintiff's second motion to dismiss the motion for modification, noting that "[t]he defendant has failed to show good cause for her delay in prosecuting [the motion] .... Under Practice Book § 25-34 [(f)], the defendant's motion for modification is stale, it has not been diligently prosecuted, and it will not be considered by the court." (Internal quotation marks omitted.) Id., at 819, 142 A.3d 1176. Following an appeal by the defendant, this court rejected her claim that the trial court lacked the authority to dismiss the motion for modification. Id., at 825, 142 A.3d 1176. This court also rejected the defendant's claim that the trial court incorrectly determined that she failed to show good cause to avoid dismissal and that she had failed to prosecute her motion with reasonable diligence. Id., at 828–30, 142 A.3d 1176.

Against this backdrop of postdissolution litigation between the parties, we turn to the litigation underlying this appeal. On December 2, 2017, the defendant filed an amended motion for contempt requesting "that the court enter an order finding the plaintiff in contempt for his refusal to transfer assets to the defendant in violation of a court order ...." The defendant claimed that "[t]he plaintiff did not pay to the defendant her 60 [percent] share of the Glenmede CLI account (standing in the sole name of the plaintiff, less that portion attributed to the inherited IRA in the approximate amount of $72,000) until July 30, 2015 ... [t]he plaintiff did not cooperate in the payment to the defendant [of] her 60 [percent] share of the Glenmede joint account and thus prevented distribution to her until July 30, 2015 ... [t]he plaintiff did not cooperate in the payment to the defendant [of] her 60 [percent] share of the Deutsche Bank Alex Brown joint account and thus prevented distribution to her until October 20, 2015 ... [t]he plaintiff did not cooperate in the payment to the defendant [of] her 50 [percent] share of the 2007 federal and state income tax refunds until July 30, 2015 ... [and] [t]he plaintiff did not cooperate in the sale of the marital home causing the defendant a significant loss of value."

The defendant further claimed that, "[a]s of the date of this motion, the plaintiff has failed and/or refused to transfer to the defendant the following funds/assets ... [the] defendant's full 60 [percent] of the plaintiff's sole Wachovia accounts ... [i]ncome generated by the defendant's 60 [percent] of the plaintiff's sole Wachovia accounts from the date of the dissolution through the entry of judgment through the date of partial distribution and the present ... [i]ncome generated by the defendant's 60 [percent] of the plaintiff's sole Glenmede account ... from the entry of judgment to July 30, 2015 (the date of distribution to [the] defendant) ... [i]ncome generated by the defendant's 60 [percent] of the parties joint Glenmede account ... from the entry of judgment to July 30, 2015 (the date of distribution to [the] defendant) ... [i]ncome generated by the defendant's 60 [percent] of the parties’ joint Gabelli account from the entry of judgment to July 30, 2015 (the date of distribution to [the] defendant) ... [t]he defendant's 60 [percent] of the Avaya/Sierra Holdings shares ... [and] [i]ncome generated by the defendant's 60 [percent] of the Avaya/Sierra Holdings shares from the entry of judgment to the present."

The plaintiff argued in his written objection that "the defendant is not credible," and addressed her claims with respect to each account or asset at issue. With regard to the Avaya/Sierra Holdings shares, the plaintiff argued that "the defendant's claim ... must fail because (1) the defendant is mostly at fault for the failure of the transfer to occur ... (2) there is no evidence of even a theoretical transaction that could have taken place, and the assertion that there was a transaction available is pure, unsupportable speculation that is contrary to all admitted evidence ... and (3) there is no evidence of the fair market value of the shares." (Footnotes omitted.) With regard to the Glenmede, Gabelli, and Deutsche Bank accounts, the plaintiff argued that because these accounts "were jointly held by the parties ... [i]t was always ... within the defendant's power to effectuate the judgment related to these accounts ...." The plaintiff went on to state that "[o]ver [eight] years ago, the plaintiff attempted to get the defendant to sign authorizations to transfer the amounts due from these accounts. He did so on multiple occasions ...." With regard to the Wachovia account, the plaintiff argued that he "was precluded by a court order ... from distributing the Wachovia funds earlier than he did," that "the amount [he] paid [to the defendant] was in excess of the amount due," and that no interest should be awarded to the defendant because she "was to a great extent responsible for the delay in implementing the orders ...." With regard to the sale of the marital home, the plaintiff argued that the defendant "offered no real evidence in support of this claim," and that she failed to make a prima facie case. Finally, the plaintiff argued that "[t]he defendant was unresponsive to seemingly anything involving the implementation of the property orders in the judgment."

The plaintiff then concluded by...