Zilkha v. Zilkha , 182 Conn. App. 459 ( 2018 )


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    KAREN ZILKHA v. DAVID ZILKHA
    (AC 39832)
    DiPentima, C. J., and Lavine and Elgo, Js.
    Syllabus
    The defendant, whose marriage to the plaintiff previously had been dis-
    solved, appealed to this court from the judgment of the trial court
    denying his motion to return certain escrow funds that the trial court
    had ordered be dispersed to pay the fees of the guardian ad litem,
    the attorney for the parties’ minor children and the custody evaluator.
    Following the dissolution of the parties’ marriage, the plaintiff filed a
    motion to open the dissolution judgment, alleging that, during the pen-
    dency of the dissolution action, the defendant fraudulently had failed
    to disclose a claim that he had against his former employer. At the time
    the motion to open was filed, the defendant had received a certain
    amount of money pursuant to a settlement with his former employer
    regarding this claim, and the defendant was anticipating receipt of the
    final installment payment from that settlement. The trial court thereafter
    ordered the defendant to place a certain amount of the final installment
    payment in escrow pending the outcome of a hearing to determine
    whether the plaintiff could sustain her allegations of fraud by more than
    a mere suspicion. Following that hearing, the court concluded that there
    was more than a mere suspicion that the defendant had committed
    fraud. Thereafter, the attorney for the minor children filed a motion to
    compel the payment of present and future fees for himself, the guardian
    ad litem and the custody evaluator. The court granted that motion,
    approved certain fees and ordered the disbursement of funds from the
    escrow account to pay those fees. The defendant then appealed to this
    court, which reversed the judgment as to the order disbursing the escrow
    funds and vacated that portion of the order, concluding that the trial
    court lacked authority to order the disbursement of the funds without
    first opening the judgment. Thereafter, the defendant filed a motion to
    return the disbursed funds to the escrow account. The trial court denied
    the motion, concluding that it could not afford the defendant any practi-
    cal relief because equity did not permit the return of the court-approved
    fees. On appeal, the defendant claimed that, in denying his motion, the
    trial court disregarded an order of this court by failing to effectuate the
    return of the funds to the escrow account. Held that the trial court
    properly denied the defendant’s motion to return the escrow funds:
    contrary to the defendant’s claim, the trial court did not ignore an order
    of this court that provided for the recoupment of the subject funds, as
    this court in the prior appeal did not remand the case with direction
    that the funds be returned to the escrow account, the rescript having
    stated only that the trial court’s order to disburse the funds from the
    escrow account be vacated; moreover, the defendant’s assertion that
    the trial court erred by not using its equitable powers to effectuate the
    return of the funds disbursed from the escrow account was unavailing,
    as the court properly concluded that it could not afford the defendant
    any practical relief because there was no way to recoup funds that
    properly were awarded and paid for services rendered by the guardian
    ad litem, the children’s attorney and the custody evaluator, and the
    defendant failed to cite any equitable or legal basis requiring the return
    of the funds.
    Argued April 12—officially released June 5, 2018
    Procedural History
    Action for the dissolution of a marriage, and for other
    relief, brought to the Superior Court in the judicial dis-
    trict of Stamford-Norwalk and tried to the court, Abery-
    Wetstone, J.; judgment dissolving the marriage and
    granting certain other relief in accordance with the
    parties separation agreement and stipulation; there-
    after, the plaintiff filed a motion to open the judgment;
    subsequently, the court, Shay, J., issued an order direct-
    ing the defendant to place certain settlement proceeds
    in escrow; thereafter, the court, Shay, J., granted the
    motion filed by the attorney for the minor children for
    fees and retainers for the guardian ad litem et al. and
    ordered, inter alia, the disbursement of certain escrow
    funds, from which the defendant appealed to this court;
    subsequently, the matter was transferred to the judicial
    district of Waterbury; thereafter, this court reversed the
    judgment in part and vacated the judgment in part;
    subsequently, the court, Hon. Lloyd Cutsumpas, judge
    trial referee, denied the defendant’s motion to return
    the dispersed escrow funds, and the defendant appealed
    to this court. Affirmed.
    Edward N. Lerner, with whom, on the brief, was
    George Kent Guarino, for the appellant (defendant).
    Opinion
    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. 169
    . 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 defen-
    dant fraudulently failed to disclose a claim that he had
    against his former employer. 
    Id. At the
    time the plain-
    tiff’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., 169–70. Following
    an April 30, 2009 hearing, the court, Shay,
    J., ordered the defendant to place $250,000 of the settle-
    ment proceeds in an escrow account pending the out-
    come of an Oneglia hearing.3 
    Id., 170. 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., 170–71. 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 retain-
    ers 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 evalua-
    tor. 
    Id., 172. The
    court also ordered the following pay-
    ments 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 guard-
    ian ad litem as retainers for future services related to
    the litigation.6 
    Id. The defendant
    appealed from the court-ordered dis-
    bursement 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., 173. 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., 174. In
    reaching our conclusion, this court stated: ‘‘Gen-
    eral 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., 174–75. 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., 175. ‘‘[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 repre-
    sented 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 dis-
    bursed to the plaintiff and the defendant.9 The defen-
    dant 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 practi-
    cal 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 Zilka
    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. 180
    .
    ‘‘Well established principles govern further proceed-
    ings 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 crim-
    inal 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 ser-
    vices, nor does he argue that the court-ordered fees
    were improper in amount. In Zilkha, this court deter-
    mined that Judge Shay improperly ordered the disburse-
    ment of the escrow funds without first opening the
    judgment of dissolution in violation of § 46b-81 (a), but
    this court did not conclude that Judge Shay improperly
    ordered the experts to be paid. See Zilkha v. 
    Zilkha, supra
    , 
    159 Conn. App. 175
    .
    Although the defendant asked the trial court to use
    its equitable powers to effectuate the return of the funds
    that had been in the escrow account, on appeal, he has
    failed to cite any equitable basis requiring the experts
    to return the funds that Judge Shay found they were
    owed. The record discloses that after the Oneglia hear-
    ing, Judge Shay determined that there was more than
    a mere suspicion that the defendant had committed
    fraud. Thereafter, the attorney for the minor children
    filed a motion ‘‘for fees and retainers in order to compel
    the payment of present and future fees for himself,
    as well as for the guardian ad litem and the custody
    evaluator.’’ (Emphasis added.) 
    Id., 171. We
    are
    reminded of the premise of equity. ‘‘One who seeks
    equity must also do equity and expect that equity will
    be done for all.’’ LaCroix v. LaCroix, 
    189 Conn. 685
    ,
    689, 
    457 A.2d 1076
    (1983). Judge Shay ordered the defen-
    dant to pay the debt he owed the experts, which he
    was unwilling do by himself. For the sake of argument,
    even if the court had granted the defendant’s motion
    to turn over, the defendant still would be obligated
    pursuant to court order to pay the fees he owed the
    experts.
    We do not minimize the error Judge Shay made in
    ordering the experts to be paid with the defendant’s
    funds in the escrow account prior to opening the judg-
    ment of dissolution. As the court, however, stated in
    its order denying the defendant’s motion to turn over,
    the defendant’s success in his appeal in Zilkha ‘‘clarified
    somewhat the law regarding court established escrow
    accounts,’’ but equity does not permit the return of the
    court-approved fees.
    For the foregoing reasons, we agree with the court
    that that it could not afford the defendant any relief–
    there is no way to recoup funds that properly were
    awarded and paid for services rendered by the experts.
    More importantly, in Zilkha, this court did not remand
    the case with direction that the funds be returned to
    the escrow account. The court, therefore, properly
    denied the defendant’s motion to turn over.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    In Zilkha, the defendant appealed, in part, from the judgment of the trial
    court, Shay, J., claiming that the court improperly dispersed ‘‘escrow money
    held from settlement funds received [by the defendant] from his former
    employer to pay postjudgment fees to the guardian ad litem, the attorney
    for the minor children, and a custody evaluator.’’ Zilkha v. 
    Zilkha, supra
    ,
    
    159 Conn. App. 168
    –69.
    2
    The plaintiff, Karen Zilkha, failed to file an appellee’s brief as ordered
    by this court. This court, therefore, ordered the appeal to be considered on
    the basis of the defendant’s brief and the record as defined by Practice
    Book § 60-4.
    3
    ‘‘Under Oneglia v. Oneglia, 
    14 Conn. App. 267
    , 269, 
    540 A.2d 713
    (1988),
    a party seeking to open a judgment of dissolution on the basis of allegations
    of fraud does not have a right to conduct discovery based only on its filing
    of a motion to open. Instead, a hearing is held to determine if the party can
    substantiate the allegations of fraud beyond a mere suspicion. . . . If so,
    the court opens the judgment for the limited purpose of discovery, and
    later issues an ultimate decision on the postjudgment motion to open after
    discovery is completed and another hearing is held.’’ (Citation omitted.)
    Zilkha v. 
    Zilkha, supra
    , 
    159 Conn. App. 170
    n.4.
    4
    The record reflects that the plaintiff withdrew her motion to open the
    judgment subsequent to Zilkha.
    5
    The ongoing dispute between the parties concerns custody and visitation.
    6
    At the present time, there are more than 850 entries on the trial court
    docket sheet for this matter.
    7
    The defendant did not challenge the court’s order that he pay the experts
    or the amount of the fees that the court ordered him to pay.
    8
    The rescript stated: ‘‘The judgment is reversed only as to the disburse-
    ment of funds from the escrow account and that portion of the order is
    vacated. The judgment is affirmed in all other respects.’’ Zilkha v. 
    Zilkha, supra
    , 
    159 Conn. App. 180
    .
    9
    The court summarized the stipulation as follows: ‘‘The parties stipulate
    that $44,566 shall be paid to the plaintiff and the balance of $42,657 shall
    be paid to [counsel for the defendant trustee].’’ The disbursement to the
    plaintiff was for a child support arrearage.
    

Document Info

Docket Number: AC39832

Citation Numbers: 189 A.3d 686, 182 Conn. App. 459

Filed Date: 6/5/2018

Precedential Status: Precedential

Modified Date: 1/12/2023