Walzer v. Walzer

209 Conn.App. 604

268 A.3d 1187

Carol WALZER

v.Roy WALZER

AC 44313

Appellate Court of Connecticut.

Argued November 17, 2021

Officially released January 4, 2022

Roy S. Walzer, self-represented, the appellant (defendant).

Stephanie M. Weaver, for the appellee (plaintiff).

Alvord, Prescott and Clark, Js.

ALVORD, J.

In this marital dissolution action, the self-represented defendant,¹ Roy Walzer, appeals from the trial court's postdissolution judgment in favor of the plaintiff, Carol Walzer, finding the defendant in contempt. On appeal, the defendant claims that the court improperly (1) found that his admitted failure to make property settlement payments to the plaintiff in accordance with the dissolution judgment was wilful, and (2) ordered the sale of the former marital home.² We affirm the judgment of the court.

The following facts, as found by the court or as stipulated by the parties, and procedural history are relevant to this appeal. The marriage of the parties was dissolved by the court, Danaher, J. , on February 19, 2014. The parties’ separation agreement (agreement), executed on the same date, was incorporated into the judgment of dissolution. Article II of the agreement provides in part that the defendant would retain title to the real property located at 141 5 ½ Mile Road in Goshen. Article IV of the agreement, titled "Cash to the [Plaintiff]," provides: "4. The [defendant] shall pay to the [plaintiff] as additional property settlement, Two Million, Five-Hundred Eighty Thousand ($2,580,000) Dollars, in installments as follows:

"4.1 One million dollars ($1,000,000) during calendar year 2014 as follows:

"1.) One hundred fifty thousand dollars ($150,000) on or before March 1, 2014;

"2.) Two hundred fifty thousand dollars ($250,000) on or before June 1, 2014;

"3.) Three hundred thousand dollars ($300,000) on or before September 30, 2014;

"4.) Three hundred thousand dollars ($300,000) on or before December 31, 2014;

"4.2 One Million, Five-Hundred and Eighty Thousand ($1,580,000) Dollars payable in quarterly installments over ten years beginning in 2015 as follows: On or before February 15, 2015, and every quarter of a year thereafter (on May 15, August 15, and November 15) for calendar years 2015, 2016, 2017, and 2018 the [defendant] shall pay to the [plaintiff] quarterly installments of forty two thousand five hundred dollars ($42,500) totaling $170,000 each year to the [plaintiff]. On or before February 15 and every quarter of a year thereafter (on May 15, August 15, and November 15) for calendar years 2019, 2020, 2021, 2022, 2023 and 2024, the [defendant] shall pay to the [plaintiff] quarterly installments of thirty seven thousand five hundred dollars ($37,500) totaling $150,000 each year to the [plaintiff].

"4.3 Said two million five hundred eighty thousand dollars ($2,580,000) shall be secured with a mortgage deed in the amount of two million five hundred eighty thousand dollars as provided in paragraph 4.1 above in favor of the [plaintiff] against the [defendant's] real property located at 141 5 1/2 Mile Road, Goshen, Connecticut [former marital home]. Said amount owed by the [defendant] to the [plaintiff] shall bear no interest. The [defendant] shall provide the [plaintiff] with legally sufficient evidence that he has title to said real property located at 141 5 1/2 Mile Road, Goshen, and that said real property bears no encumbrances other than the presently existing first mortgage in the amount of three million dollars owed to Hudson City Savings Bank. The [plaintiff] shall provide the [defendant] a yearly release for the amount that has been paid off by the [defendant]. If the [defendant] sells said real property at 141 5 1/2 Mile Road, Goshen, or otherwise wishes to substitute security to the [plaintiff] for his obligation herein, he shall provide sufficient substitute security to the [plaintiff] for any unpaid balance at that time."

On January 21, 2020, the plaintiff filed a motion for contempt. On August 19, 2020, the plaintiff filed a supplemental motion for contempt,³ alleging that the defendant had failed to make property settlement payments as set forth in article IV of the agreement. Specifically, the plaintiff alleged that the defendant owed an arrearage of $10,000 at the time of her January 21, 2020 motion for contempt and that the defendant had not made any of the quarterly payments due on February 15, May 15, and August 15, 2020. With respect to the former marital home, the plaintiff alleged that it was the subject of two foreclosure actions. The plaintiff represented that the defendant's counsel had indicated that the former marital home would be placed on the market for sale but that it was off the market. The plaintiff maintained that the defendant had overpriced the home when listing it in the past.

The plaintiff requested that the court find the defendant in contempt, order the defendant to pay all arrearages and current amounts owing, and order the former marital home be placed on the market for sale with a licensed broker and with a "realistic" listing price commensurate with other listings in the area. She further requested that, in the event an agreement establishing the listing price could not be reached, the listing broker mutually selected should set the price. The plaintiff requested sufficient substitute security for the amounts owed her under the dissolution judgment and sought attorney's fees.

On September 1, 2020, the court, Shaban, J. , held a hearing at which the parties were both represented by counsel. The defendant submitted a financial affidavit dated September 1, 2020. On September 28, 2020, the court issued its memorandum of decision. The court first found, in accordance with the parties’ stipulation offered at the hearing, that the defendant owed an arrearage of $112,000.⁴ The court then recited the following additional facts, to which the parties had stipulated. "The property distribution payments due the plaintiff were secured by a lien on the parties’ marital home .... The fair market value of the property is estimated to be $11,000,000. At the time of the agreement, there was a mortgage encumbering the property that now has a balance due of approximately $3,000,000. Following the mortgage is the plaintiff's lien securing the property settlement payments. The balance of the lien is presently $740,000. Subsequent to the filing of the plaintiff's lien, the defendant secured a second mortgage on the premises for approximately $3,000,000. Both mortgages are now under foreclosure. From 2018 to February, 2020, the defendant marketed the property for sale through a broker. The property had been listed at a price of $13,900,000. The defendant is now attempting to sell the property himself."

The court noted that, during the hearing, the defendant requested permission to market the property without professional assistance through November 1, 2020, and that, if he were unable to find a buyer, requested that he then be permitted to choose a broker and a " ‘reasonable’ " selling price. With respect to the listing price, the court referenced the defendant's position that "the unique premium nature of the property is such that a comparative analysis could not realistically be done by a broker." (Internal quotation marks omitted.) The court also noted the defendant's representation that there remained sufficient equity in the property to secure the payments due to the plaintiff and his offer to pay interest on any amount in arrearage.

The court found by clear and convincing evidence that the defendant had wilfully failed to make the payments due. It further found that the order was clear and unambiguous. Thus, the court found the defendant in contempt.

The court reviewed the defendant's financial affidavit, which revealed that the defendant had "significant real and personal property assets that could be used to make payment of the amounts due either through financing or liquidation." Specifically, the court identified the defendant's full ownership in Litchfield Equities, Ltd., which owns two properties valued at $600,000 and $550,000 with no encumbrances. The court further noted that the defendant had identified on his financial affidavit personal property assets valued at $468,775, including an art collection, Oriental rugs, antiques, a wine cellar, furniture, tools, equipment, and miscellaneous items.

On the basis of the foregoing, the court ordered the defendant to bring current all payments due on or before November 15, 2020. The court ordered the former marital home "be immediately listed for sale through a mutually agreed upon licensed real estate broker. In the event the parties cannot agree on a broker, each shall select a broker of their choosing and the two brokers shall choose a third broker who shall market the property. The selection of the broker and the execution of a listing agreement shall be done within ten days of this order. The list price shall be set by the broker and the parties shall thereafter abide by the recommendations of the broker as to the frequency and amount of any alterations in the list price for the property. Any offer for purchase within 5 percent ... of the list price shall be accepted by the parties."⁵ This appeal followed.

I

We first address the defendant's claim that the trial court improperly granted the plaintiff's motion for contempt. Specifically, he contends that no evidence was presented that his failure to make property settlement payments in accordance with the dissolution judgment was wilful. The plaintiff responds that the record before the court, including the defendant's financial affidavit, which showed significant assets at his disposal and available to satisfy the judgment, was sufficient for the court to find that his nonpayment was wilful. We agree with the plaintiff.

The applicable principles of law and standard of review are well settled. "Contempt is a disobedience to the rules and orders of a court which has power to...