Rosner v. Rosner, FA064019316

Barry Rosner v. Elisa Rosner

No. FA064019316

Superior Court of Connecticut, Judicial District of New Haven, New Haven

April 14, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO RECONSIDER AND REARGUE

Kenneth L. Shluger, J.

The parties appeared before the undersigned on October 16, 2015 and then on December 14, 2015, relative to the plaintiff's Motion for Modification (117) defendant's Motion for Contempt (125) and defendant's Motion for Modification (126). Both parties were represented by counsel and submitted memoranda and proposed findings of facts which the court considered in its memorandum of decision dated December 17, 2015.

The plaintiff filed a Motion to Reconsider and Reargue (147) which was heard on April 12, 2016. Although the motion had five claims, plaintiff's counsel abandoned claim number two and four and pressed only claims one, three and five which will be addressed in this decision.

Claims number one and three address the Court's finding that the plaintiff was in contempt for his failure to pay " additional alimony" pursuant to paragraph 5 of the separation agreement. Essentially, the wife was to receive 50% of the gross amount of any gross rental income which the husband receives for his . . . property in excess of $12, 600 per year."

In its Memorandum of Decision, the court found that between 2008 and 2013, the husband owed to the wife the sum of $32, 583. The plaintiff argues that the court should not have considered 2008 and 2009 since the motion for contempt addresses only 2010, 2011, 2012 and 2013. Plaintiff also argues that in any event, the court committed a mathematical error for 2008 in assessing $5, 333 for that year, rather than $4, 000.

The underlying Motion for Contempt (125) states at paragraph 2 that the defendant was to receive additional alimony " from April 2008 until May 1, 2013." Paragraph 3 of said motion then claims that " the plaintiff violated the court order by failing to pay . . . for the time periods May 2010 to May 2013." Based on a reading of paragraph 2 in conjunction with paragraph 3, the plaintiff was on notice that at issue was the unpaid additional alimony as it related to gross rental income from the plaintiff's property for the entire period of 2008 through and including 2013. Moreover, the plaintiff was well aware that he had paid his ex-wife no share of the rental income for any of those years. At the hearing of October 16, 2015, the defendant offered to the court a document captioned " Defendant's Computations of Alimony Contempt" (142), which summarized the claim for the years 2008-2013. The document even contained a calculation of interest for the years 2008-2013 in the event that the court awarded interest. Moreover, the court and both attorneys engaged in a colloquy on the record regarding the calculation of the unpaid additional alimony. While plaintiff's counsel was careful to avoid conceding that anything was due, she conceded that if the court found that the sums were due, the actual computation totaled $32, 583 consisting of the period of 2008-2013. At no time did the plaintiff object to the introduction of references to 2008 and 2009. Thus, it was clear to the plaintiff early on the first day of hearings that the claimed unpaid additional alimony included the entire period from 2008 through 2013. Both attorneys asked questions regarding the issue of the additional alimony for 2008 and 2009 at the Oct. 16, 2015 hearing. The plaintiff's own attorney asked him to state the amounts of rental income he received for those very years. It was the amount of rental income which formed the basis for the additional alimony amount.

In his motion to reargue, the plaintiff claims that he was denied due process and an opportunity to address the claim for additional alimony for 2008 and 2009 however, this is simply not the case. Moreover, the parties returned to court on a subsequent date in December to conclude the hearing and any such arguments or claims could have been addressed at that time.

The plaintiff next argues that if the court is to include 2008 and 2009, it committed a mathematical error and that it should have found the arrearage for 2008 to be $4, 000 rather than the $5, 333 it in fact utilized. This ignores the fact that the parties stipulated in open court that if there is an arrearage at all then the figure shall be $32, 583 ($5, 300 from 2008). Since the parties stipulated on the record that $32, 583 was the figure to be used if the court concluded that the additional alimony was due, it would be an error for the court to ignore the stipulation...