Lynn v. Lynn

130 Conn.App. 319

23 A.3d 771

Iris S. LYNN

v.Roderick A. LYNN.

No. 32060.

Appellate Court of Connecticut.

Argued Feb. 16, 2011.Decided July 26, 2011.

Roderick A. Lynn, pro se, the appellant (defendant).Jonathan D. Chomick, for the appellee (plaintiff).

DiPENTIMA, C.J., and LAVINE and SULLIVAN, Js.LAVINE, J.

The self-represented defendant, Roderick A. Lynn, appeals from the postdissolution judgment of contempt, claiming that the court, Dolan, J., improperly (1) found him in contempt ¹ and (2) awarded attorney's fees to the plaintiff, Iris S. Lynn. We agree that the court improperly found the defendant in contempt and therefore reverse the judgment of the trial court. ²

The record reveals the following facts that are relevant to this appeal. The plaintiff, who married the defendant in 1991, commenced an action to dissolve the marriage in December, 2001. On February 20, 2008, the court, Prestley, J., rendered a judgment of dissolution in a memorandum of decision, wherein she found, among other things, that in 1993, the parties moved into the marital home, a two-family residence, which was owned by the defendant. The parties resided in one of the apartments on the premises and rented the other. In the spring of 2007, the marital home was appraised at a value of $276,000. At the time of trial, title to the marital home was encumbered by an outstanding first mortgage of approximately $92,000. Just prior to the commencement of the dissolution action, the defendant had encumbered the marital home with a $30,000 seven year balloon mortgage held by his father, Jack E. Lynn (defendant's father).³

Judge Prestley also found that “the plaintiff currently lives in the family home, collects the rent of $900 per month on the other apartment, pays out-of-pocket an additional $200 and pays the mortgage of $1100 per month. The plaintiff has received the rental income from that property since September, 2003. She has taken the home mortgage deduction, which may have resulting negative tax consequences to both parties.”

In dissolving the parties' marriage, Judge Prestley issued the following orders, among others. “The marital home at 28–30 Washington Street in Plainville ... shall be listed for sale by a realtor agreed upon by the parties. If they cannot agree, Attorney [Jennifer E.] Davis ⁴ shall select a realtor. The proceeds of the sale, after closing costs are paid, shall be held in escrow .... The proceeds shall be divided [fifty-fifty]. The defendant is 100 [percent] responsible for the mortgage debt owed his father and brother. If the closing costs include and result in a pay off of the mortgage notes to the defendant's father and brother, the defendant's share of the proceeds shall be reduced by that amount.” (Emphasis added.) A special master, attorney Scott A. Sandler, was appointed to facilitate the sale of the marital home, which was in foreclosure and sold in September, 2009.

The defendant subsequently filed numerous motions regarding the sale of the marital home. On December 16, 2008, the defendant filed a postjudgment motion for order regarding the sale of marital residence.⁵ On June 25, 2009, the defendant filed a motion for contempt for failure to pay sewer taxes.⁶ On October 6, 2009, the defendant filed a motion for order regarding the distribution of the proceeds from the sale of the marital property.⁷ Our review of the docket sheet discloses that none of those motions was ruled on by the trial court.

On October 13, 2009, the plaintiff filed a motion for contempt. ⁸ The defendant filed an objection to the contempt motion on November 2, 2009.⁹ On December 22, 2009, the parties appeared before Judge Dolan pursuant to the plaintiff's motion for contempt. At the commencement of the proceeding, the defendant represented himself. The transcript reveals that at some prior proceeding, the court had ordered the proceeds of the sale of the marital home disbursed.¹⁰ The following colloquy transpired between the court and the plaintiff's counsel:

“[The Plaintiff's Counsel]: What Your Honor told [the defendant] at that hearing .... that if he paid his father the full amount ... he is going to

“The Court: That he was going to have problems.

“[The Plaintiff's Counsel]: ... incur your wrath.... He paid his father the full amount, and I have the document.... May I pass that up to the clerk?

“The Court: Sir, [to the defendant] get in here with a lawyer, because you run the risk of—you run the serious risk of going to jail. Get a lawyer.

“[The Defendant]: I don't have the funds to get a lawyer.

“The Court: Then I'm going to appoint a lawyer, because I'm going to put you in jail today, and then your father will give you back the money tomorrow, and then we'll all live happily ever after. It's going to be the same story that we did the last time, and you want to do this the easy way, or the hard way.

“[The Defendant]: The funds were not distributed to me, your Honor. I have no ability to pay this.”

[23 A.3d 775 , 130 Conn.App. 324]

The court then heard representations from the plaintiff's counsel and calculated roughly the amount of money it believed that the defendant owed to the plaintiff. The defendant represented to the court that it was the plaintiff who caused the marital home to be foreclosed and that she had realized her share of the equity in the marital home and that was the basis of the defendant's motions that he wanted to be heard. The court stated: “I'm not dealing with that.”

The court appointed attorney Robert Sussdorff to represent the defendant. In appointing Sussdorff, the court stated that the defendant “runs an absolute risk of going to jail today. Under the terms of the divorce judgment, he was to ... be responsible to pay his father $48,000, approximately. He, of course, did not pay it. He gave the $48,000 to his father and claims that he has no control over the situation. We're going to have a hearing, and if I find that he's in contempt, I am going to put him in jail today unless he comes up with a bank check for $20,000. You know what? I'm going to give you [the plaintiff's counsel] $2500 for counsel fees, too.”

Thereafter the plaintiff's counsel made specific representations of fact to the court as to the amount of money the defendant owed to the plaintiff. The court found that the amount owed to the plaintiff plus attorney's fees totaled $21,671. The court told the defendant that he would go to jail that day unless he produced the funds. Sussdorff interjected that he had not yet had an opportunity to meet with the defendant. The defendant spoke up stating: “I have five motions here that are relevant, which he didn't even meet with me yet.” The court again stated that it would not hear the motions. The defendant also informed the court that the plaintiff had received rental income from the marital home. The court stated: “Sir, I'm not interested in any of this. All I want to know is ... why you paid your father, when you were ordered not to pay your father, and then I'll decide whether or not I'm going to put you in jail.” Sussdorff then asked for time to speak to the defendant. Although the court initially refused to give Sussdorff time to speak to the defendant, it later permitted him to do so during the luncheon recess. Sussdorff also asked to see the court file.

When the proceeding reconvened at 2 p.m., counsel represented to the court that the defendant had not paid the mortgage owed to the defendant's father. The court asked if the defendant should be put on the stand or whether there was an agreement. Sussman stated: “Your Honor, I would like to see the contempt [motion]. I haven't seen the contempt motion.” The court informed Sussdorff that all the court was interested in was whether the defendant had paid his father and that he was not hearing any of the defendant's motions. Sussdorff informed the court that the defendant literally never received any of the funds from the sale of the house and that he could not have paid his father with those funds. The court asked Sussdorff if he wanted to offer the defendant's testimony. The defendant then stated that he had not had time to prepare and that he was being denied due process of law. The court found that the defendant had “all the time in the world to prepare. We're doing this right now.” It also came to light that Sussdorff had not been given the complete court file, which consisted of five volumes, to review. At Sussdorff's request, the court ordered the plaintiff's counsel to show Sussdorff the contempt motion. The matter was passed briefly by the court.

When the matter came before the court again, the plaintiff's counsel sought to have the defendant stipulate to certain facts. The court interrupted, stating that the defendant would not stipulate to anything. The following colloquy then transpired:

“[Sussdorff]: [T]he payment to pay off the mortgage was not—that money was never in [the defendant's] hands. He never had that $48,000. It wasn't his. He didn't disburse that funds to his father.

“The Court: What do you mean, he didn't? All right. Never mind. Go ahead You're in an impossible position, counsel....

“[Sussdorff]: [The defendant] did not have that $48,000 in his hand, and if he had it ... it went to pay off that mortgage. It did not go through his hands ... according to the settlement statement.

“The Court: All right. I'm going to hold him in deliberate contempt, and I'm going to order him incarcerated. I'll give you your choice, sir. I'll give you until 10 o'clock tomorrow morning, or I'll lock you up now. It's your pleasure. If you don't show up here at 10 o'clock tomorrow, I'm going to hold you in jail longer. Do you want to go right now, or would you rather wait and clean up whatever affairs you have to clean up and be here tomorrow morning at 10 o'clock?

“[The Defendant]: Tomorrow morning at ten is fine.

“The Court: That's fine. Okay, and the purge amount is $21,671.19, and if you are not here...