Walzer v. Walzer, 209 Conn. App. 604 (2022) (inability to pay & contempt; remedial order to sell former marital residence)
Officially released January 4, 2022
In Short: (1) Where inability to pay is raised as a defense to contempt, the burden of proving that defense is on the contemnor; (2) orders to sell the former marital residence and specifying the terms and condition for sale were proper remedial orders in light of use of the residence as security for the property settlement.
The parties were divorced in 2014 by separation agreement. Per the separation agreement, inter alia, Husband retained title to the marital residence, was to pay Wife a settlement of $2,580,000 in installments, and the property settlement was to be secured with a mortgage in the same amount on the marital residence.
In January and August 2020 Wife filed motions for contempt alleging that Husband had failed to make property settlement payments. Wife sought orders that Husband pay the arrearages, that the marital home be placed on the market with a licensed broker and a “realistic” price, that substitute security be ordered for the remaining amounts owed and counsel fees.
A hearing was held at which both parties were represented by counsel. The parties stipulated that Husband owed $112,000 at time of the hearing. The trial court found by clear and convincing evidence that Husband had wilfully failed to make the payments due and that the order was clear and unambiguous and found Husband in contempt. The trial court ordered Husband to bring all payments current and ordered that the marital home be immediately listed for sale and put in place parameters for such sale including selection of broker, list price and a formula for acceptance of offers.
Husband appealed claiming that the trial court improperly (1) found that Husband’s admitted failure to make property settlement payments to Wife in accordance with the Judgment was wilful, and (2) ordered sale of the former marital home.
Husband argued that no evidence was presented that his failure to make the property payments was wilful, further arguing that his assets were illiquid. Wife argued that the record, including Husband’s financial affidavit, showed significant assets available to satisfy the judgment sufficient to support a finding of wilfulness. The Appellate Court noted that the burden to demonstrate the inability pay defense to contempt rests upon the obligor. The Appellate Court found that there was substantial evidence that Husband could have liquidated or financed payment based on the assets Husband disclosed.
With regard to the sale of the marital residence, Husband argued that (1) the trial court lacked jurisdiction to enter an order related to the sale of the former marital home and that it constituted an improper modification of the final property division, (2) that the trial court abused its discretion in entering such order regarding the broker selection process, list price, and acceptance of offers, and (3) that the sale violated his right to due process.
The Appellate Court noted the trial court’s authority to issue postjudgment orders effectuating its judgment and to protect the integrity of the original judgment. The construction of an order as effectuating or modifying a judgment is a question of law subject to plenary review. The Appellate Court found that the parties had tied the property to the property settlement via the security provision. It also noted that Husband had not opposed selling the residence at the hearing, only that he had wanted additional time to do so and control over the terms. The Appellate Court found that the court’s remedial orders were justified and appropriately tailored to the violations and did not violate Husband’s right to due process.
The Judgment was affirmed.