Zilkha v. Zilkha

182 Conn.App. 459

189 A.3d 686

Karen ZILKHA

v.David ZILKHA

AC 39832

Appellate Court of Connecticut.

Argued April 12, 2018

Officially released June 5, 2018

Edward N. Lerner, with whom, on the brief, was George Kent Guarino, for the appellant (defendant).

DiPentima, C.J., and Lavine and Elgo, Js.

LAVINE, J.

The defendant, David Zilkha, has brought multiple postjudgment appeals in this exceedingly bitter and protracted dissolution litigation. His present appeal arises out of this court's judgment, holding that the trial court was without authority to disburse funds owned by the defendant that were being held in a court-ordered escrow account. See Zilkha v. Zilkha , 159 Conn. App. 167, 175, 123 A.3d 439 (2015).¹ On appeal, the defendant claims that by denying his "motion to turn over—post-judgment," the trial court disregarded an order of this court by failing to effectuate the return of his funds to the escrow account. We affirm the judgment of the trial court.²

The following facts, as set forth in Zilkha , are relevant to our resolution of the present appeal. The marriage of the defendant and the plaintiff, Karen Zilkha, was dissolved by the court, Abery–Wetstone, J. , on May 31, 2005. Zilkha v. Zilkha , supra, 159 Conn. App. at 169, 123 A.3d 439. On November 14, 2008, the plaintiff filed a motion to open and set aside the dissolution judgment in which she alleged that during the dissolution litigation, the defendant fraudulently failed to disclose a claim that he had against his former employer. Id. At the time the plaintiff's motion to open was filed, the defendant had received $1,400,000 as part of the settlement he had obtained from his former employer. Id. The former employer was to make a final payment of $700,000 to the defendant in April, 2009. Id. On April 9, 2009, the plaintiff amended her motion to open the judgment, requesting that the court order the defendant to place the $700,000 settlement proceeds in escrow. Id., at 169–70, 123 A.3d 439. Following an April 30, 2009 hearing, the court, Shay, J. , ordered the defendant to place $250,000 of the settlement proceeds in an escrow account pending the outcome of an Oneglia hearing.³

Id., at 170, 123 A.3d 439. Judge Shay held an Oneglia hearing in February, 2010, and thereafter concluded that there was more than a mere suspicion that the defendant had committed fraud.⁴ Id., at 170–71, 123 A.3d 439. See footnote 3 of this opinion.

On September 10, 2012, the attorney for the minor children filed a "postjudgment motion for fees and replenishment retainers" to compel the parties to pay him, the guardian ad litem, and the custody evaluator (experts) for the services they had rendered and retainers for costs to be incurred by the ongoing litigation.⁵ Following a hearing, and in accordance with the criteria set forth in General Statutes §§ 46b–62 and 46b–82, Judge Shay ordered the plaintiff and the defendant each to pay $500 to the attorney for the minor children, $1500 to the guardian ad litem, and $500 to the custody evaluator. Id., at 172, 123 A.3d 439. The court also ordered the following payments to be made from the defendant's funds in the escrow account: $40,000 to the attorney for the minor children, $62,577.95 to the guardian ad litem, $9000 to the custody evaluator, and an additional $15,000 each to the attorney for the minor children and to the guardian ad litem as retainers for future services related to the litigation.⁶ Id.

The defendant appealed from the court-ordered disbursement of funds from the escrow account, claiming that the court "lacked authority to distribute the escrow funds because the judgment of dissolution had not been opened."⁷ Id. He argued that the court's ruling at the end of the Oneglia hearing only permitted the plaintiff to conduct limited discovery after which the court was required to consider the plaintiff's motion to open. Id., at 173, 123 A.3d 439. This court agreed with the defendant that the trial court lacked authority to order the distribution of the defendant's funds in the escrow account to pay the experts. Id., at 174, 123 A.3d 439.

In reaching our conclusion, this court stated: " General Statutes § 46b–81 (a) provides in relevant part: At the time of entering a decree ... dissolving a marriage ... the Superior Court may assign to either spouse all or any part of the estate of the other spouse. The court can redistribute assets pursuant to a motion to open.... Nevertheless, [u]ntil a motion to open has been granted, the earlier judgment is unaffected.... In this case, although the court was free to order that the defendant pay some or all of the fees to the [experts], it lacked the authority to direct that these payments be made from the escrowed funds." (Citations omitted; internal quotation marks omitted.) Id., at 174–75, 123 A.3d 439. A court is not authorized to decide which of a party's assets must be used to pay a party's share of fees. Id., at 175, 123 A.3d 439. "[T]he court could not make orders for funds to be disbursed from the escrow account because those funds belonged solely to the defendant, until and unless, the court opened the judgment and distributed the escrowed funds, if at all." Id. This court reversed the judgment as to the order to disburse escrow funds to the experts and vacated that portion of the order. Id. This court made no further orders with respect to the escrow funds that had been disbursed.⁸

On October 20, 2015, the defendant filed his motion to turn over the funds and an application for order to show cause why the plaintiff and the experts should not be ordered to appear and show cause why the defendant's motion to turn over should not be granted. The court, Nastri, J. , granted the order to show cause and ordered the plaintiff and the experts to appear.

The hearing was held before the court, Hon. Lloyd Cutsumpas , judge trial referee, on November 3, 2016. During the hearing, counsel for the defendant represented that after all the payments ordered by Judge Shay had been made, the parties stipulated that the funds remaining in the escrow account should be disbursed to the plaintiff and the defendant.⁹ The defendant did not dispute that the funds that were in the escrow account were disbursed according to Judge Shay's orders and the accounting with respect to the disbursements was proper. Counsel for the defendant acknowledged that the fees were proper but argued that Judge Shay would not conduct a visitation hearing until the fees that were owed were paid. The court summarized the issue as the defendant wanting the court to "clawback" fees Judge Shay had approved and ordered paid to the experts.

On November 10, 2016, the court issued an order denying the defendant's motion to turn over, stating in part that the holding in Zilkha "clearly stated that the [trial] court was without authority to disburse funds from the named escrow account to the three court-appointed experts. That portion of the order was simply vacated by the Appellate Court. There was no remand or further direction on what this court was to do.... [E]quity does not permit the relief requested in the [defendant's] motion, i.e., the return of court-approved fees paid to court-appointed experts. There is no practical relief which can be afforded to the defendant." The defendant thereafter appealed to this court.

On appeal, the defendant argues that the trial court erred by not using its equitable powers to effectuate the return of the funds disbursed from the escrow account to pay the experts. The defendant contends that the court ignored an order of this court in Zilkha providing for recoupment of his funds. The flaw in the defendant's argument is that this court did not order the trial court to recoup or effectuate the return of his funds in the escrow account that were used to pay the three experts who had rendered services to the parties' children and the trial court. The rescript merely stated that the order to pay was to be vacated, nothing more. See Zilkha v. Zilkha , supra, 159 Conn. App. at 180, 123 A.3d 439.

"Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion.... [T]his is the guiding principle that the trial court must observe.... The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.... These principles apply to criminal as well as to civil proceedings.... The trial court cannot adjudicate rights and duties not within the scope of the remand.... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered...." (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Brundage , 320 Conn. 740, 747–48, 135 A.3d 697 (2016). Significantly, in Zilkha , this court ordered only that the trial court's order to disburse funds from the escrow account be vacated. This court did not order a remand for any purpose. We, therefore, disagree with the defendant's claim that the trial judge ignored the precedent of an appellate court when he denied the motion to turn over.

The defendant also argues that the court should have used its equitable powers to order the experts to return the funds from the escrow account that were used to compensate them for services that they had rendered. Despite his argument, the defendant has not cited any legal or equitable authority supporting it, and we know of none. Notably, the defendant does not contend that the experts were not entitled to be paid for their services, nor does he argue that the court-ordered fees were improper in amount. In Zilkha , this court determined that Judge Shay improperly ordered the disbursement of the escrow...