Lewis v. Lewis ( 2014 )


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    SANDRA LEWIS v. LESLIE A. LEWIS III
    (AC 36220)
    Lavine, Sheldon and Bishop, Js.
    Argued October 15—officially released December 16, 2014
    (Appeal from Superior Court, judicial district of
    Danbury, Doherty, J. [dissolution judgment]; Winslow,
    J. [amended motion for order].)
    Marianne J. Charles, with whom was Jaime S.
    Dursht, for the appellant (plaintiff).
    George J. Markley, for the appellee (defendant).
    Opinion
    LAVINE, J. This appeal concerns the postdissolution
    order of the trial court, Winslow, J., regarding the distri-
    bution of the net proceeds of the sale of the marital
    home. On appeal, the plaintiff, Sandra Lewis, claims that
    the court improperly (1) calculated the net proceeds of
    the sale, (2) construed the dissolution judgment, and
    (3) modified the dissolution judgment. We affirm the
    judgment of the trial court.
    The following procedural history is relevant to the
    appeal. The marriage of the plaintiff to the defendant,
    Leslie A. Lewis III, was dissolved by the trial court,
    Doherty, J., in a memorandum of decision issued on
    January 13, 2003.1 In its memorandum of decision, the
    court stated in relevant part that the evidence permitted
    it ‘‘to find the conduct of the defendant was the signifi-
    cant cause of the breakdown of the marriage. To the
    extent that there is any discrepancy in the distribution
    of assets, that is the reason.’’ The court found, among
    other things, that the defendant established his own
    business, which was lucrative due to his hard work
    and business acumen. The defendant’s business success
    permitted the parties to enjoy the benefits of wealth.
    The court stated that because ‘‘the business profits are
    largely attributable to the defendant, the court finds
    that its fair market value under new management would
    be somewhat less than its current value under the defen-
    dant’s ownership. That fact is important as it impacts
    the global asset distribution in this case and for the
    reason that the defendant’s continued control of that
    business is the best assurance that the parties’ income
    stream would not suddenly be reduced to a fraction
    of what it had been during the marriage. The other
    significant marital asset is the parties’ equity in the
    marital residence’’ in Redding.
    The court acknowledged the plaintiff’s proposed
    orders that she be awarded the marital home, or its
    value, in lieu of her interest in the defendant’s business.
    She, however, expressed ‘‘concern that the defendant
    might walk away from or ‘tank’ the business and render
    the financial orders unrealistic.’’ The court found that
    ‘‘the plaintiff does not have the financial ability, absent
    alimony, to pay the debts and expenses of the marital
    residence. It is equally obvious that if the defendant
    were to no longer have the income he has been able
    to generate through his business, his equitable interest
    in the marital residence would be lost through foreclo-
    sure or bankruptcy. The only equitable way to reason-
    ably maintain the viability of both is to award fractional
    interests of each asset.’’2 The court found the fair market
    value of the marital home to be $635,000 and title to
    the home was encumbered by approximately $280,000
    in debt.
    In its distribution of the marital assets, the court
    ordered that the defendant transfer his title and interest
    in the marital home to the plaintiff and that the plaintiff
    ‘‘hold the defendant harmless from the first mortgage
    and the home equity debt and . . . except as follows,
    all other obligations associated with said property
    including taxes, insurance and utilities. The defendant
    shall be responsible for all other mortgages or encum-
    brances on said property at the time of this judgment
    . . . .’’ (Emphasis added.) The court also ordered that
    the plaintiff had the right to sell the marital home, but
    if the home is sold, ‘‘the plaintiff shall pay to the defen-
    dant a sum equal to 35 [percent] of the net proceeds’’
    of the sale. The court secured the plaintiff’s obligation
    to pay the defendant his 35 percent interest by way of
    a lien on the title.
    The plaintiff subsequently filed a motion for articula-
    tion and clarification regarding the mortgages that
    encumbered the marital home, among other things.3
    Judge Doherty denied the plaintiff’s motion for articu-
    lation.
    On March 17, 2003, the plaintiff filed a motion for
    contempt postjudgment in which she stated, in relevant
    part, that ‘‘[she] was ordered to pay the first mortgage
    and equity line of credit. . . . The defendant was
    ordered to pay all other mortgages on the real estate,
    which includes a mortgage to his mother . . . and a
    commercial loan for his business . . . .’’ (Emphasis
    added.) The plaintiff alleged that the defendant had
    failed to pay the mortgage for which he was ‘‘currently
    obligated.’’ (Emphasis added.) On March 21, 2003, the
    defendant, too, filed a motion for articulation and/or
    clarification regarding his interest in the home.4
    On June 3, 2003, Judge Doherty issued a supplemental
    memorandum of decision ‘‘in response to a motion for
    articulation of the court’s decree.’’ The court ordered,
    in relevant part: ‘‘The plaintiff shall have exclusive use
    and possession and legal title of and to the marital
    residence . . . . The defendant is ordered to transfer
    all of his right, title and interest in and to said real
    property to the plaintiff forthwith. . . . The plaintiff is
    to be solely responsible for and shall indemnify the
    defendant against payment of the current mortgage,
    property taxes, insurance, utilities and the current
    home equity debt. The defendant shall be solely respon-
    sible for all other mortgages or encumbrances on said
    property in existence at the time of this judgment
    including any obligation owed to [his mother]. . . .
    The defendant shall have an equitable lien against
    said property in the amount of [35 percent] of its fair
    market value. . . . The plaintiff shall have the right to
    sell said real property at any time. . . . When and if
    said real property is sold by the plaintiff, and after
    payment of the mortgage(s), broker’s fees, attorney’s
    fees and other usual and customary closing expenses,
    the net proceeds shall be divided [65] percent to the
    plaintiff and [35] percent to the defendant within
    [sixty] days of such sale. Each party shall be responsible
    for any taxable gain in said proportion. . . .’’5 (Empha-
    sis added.)
    On June 12, 2003, the plaintiff filed a motion for
    clarification postjudgment in which she identified evi-
    dence of four mortgages on the marital home that was
    presented at trial.6 The plaintiff quoted the following
    language from Judge Doherty’s memorandum of deci-
    sion: ‘‘[T]he plaintiff is to be responsible for and hold
    the defendant harmless from the first mortgage and
    home equity debt and, all other obligations associated
    with said property including taxes, insurance, and utili-
    ties. Except that the defendant shall be responsible for
    all other mortgages on said property at the time of
    this judgment including the obligation owed to [his
    mother].’’ (Emphasis in original.) The plaintiff repre-
    sented that she had made timely payments on the first
    mortgage and home equity line of credit held by People’s
    Bank. She also represented that the defendant had
    failed to pay the commercial loan secured by a mortgage
    in favor of People’s Bank, which was then threatening
    foreclosure. The plaintiff requested that the court clar-
    ify that ‘‘all other mortgages’’ refers to the commercial
    loan related to the defendant’s business. In ruling on
    the plaintiff’s motion for clarification, Judge Doherty
    stated that his order ‘‘all other mortgages’’ applies to
    the ‘‘defendant’s commercial loan, secured by a home
    equity mortgage in the amount of $90,313.39.’’
    On July 12, 2013, the plaintiff sold the marital home
    for $700,000. The closing statement prepared by her
    closing attorney stated that the net proceeds of sale
    were $326,030.65, after the expenses of sale and two
    mortgages in the amounts of $186,974.45 and
    $147,367.90 were deducted from the sale price. The
    closing statement indicated that the defendant was due
    $111,967.16. On July 15, 2013, the defendant filed a
    motion for order regarding the distribution of the equity
    in the marital home, claiming that he was due
    $177,923.59 from the proceeds of the sale. On Septem-
    ber 6, 2013, the defendant filed an amended motion for
    order regarding the distribution in which he claimed
    he was due $231,130.55. Prior to the resolution of the
    defendant’s motions for order regarding the distribu-
    tion, the parties agreed that they each would take a
    $100,000 distribution from the net proceeds. Judge
    Winslow ordered the balance of the funds placed in
    escrow pending her resolution of the defendant’s
    motions for order.
    The parties appeared before Judge Winslow on Sep-
    tember 3 and October 21, 2013. The court acknowledged
    that there were factual disputes about the existing mort-
    gages on the marital home. The parties agreed, however,
    that defendant had paid the mortgages for which he
    was responsible. When asked if the plaintiff had paid
    the first mortgage, the plaintiff’s counsel represented
    that the plaintiff had refinanced the marital home a
    number of times.
    After reviewing Judge Doherty’s memorandum of
    decision dissolving the marriage of the parties and his
    supplemental memorandum of decision, Judge Winslow
    stated that ‘‘they’re not substituting for each other.
    They’re to be taken together. It’s a supplemental memo-
    randum of decision. It’s not a correction or a clarifica-
    tion. It’s a supplemental memorandum of decision. So
    you have to take them both together.’’
    The dispute between the parties centered on para-
    graph 5 of the supplemental memorandum of decision,
    which stated in part ‘‘if the real property is sold by the
    plaintiff, and after payment of the mortgage(s), broker’s
    fee, attorney’s fees and other usual and customary clos-
    ing expenses, the net proceeds shall be divided [65]
    percent to the plaintiff and [35] percent to the defendant
    . . . .’’ Judge Winslow found that the only mortgages
    Judge Doherty could have been referring to were the
    ones known to exist at the time of dissolution.
    When the plaintiff refinanced the mortgage and home
    equity loan for which she was solely responsible, she
    received cash from the equity in the property. During
    the hearing before Judge Winslow, the plaintiff argued
    that, on the basis of paragraph 5 of the supplemental
    memorandum of decision, the refinanced mortgages
    were to be paid out of the proceeds of sale before the
    parties’ respective shares were calculated and distrib-
    uted. The court reformulated the argument stating to
    the plaintiff’s counsel: ‘‘So, your position is, she could
    take any amount of money that she wanted out of the
    equity in the house, and pocket that or use it for what-
    ever purpose, if she wished, and that . . . any money
    she took out would otherwise have been 35 percent his
    had she not taken it out. So, your claim is that she was
    entitled to take equity out of the house, essentially.’’
    The plaintiff’s counsel stated, ‘‘yes,’’ in response. The
    court rejected the plaintiff’s argument, stating that ‘‘it
    is ludicrous to suggest that [Judge Doherty] intended
    that [the plaintiff] could take any additional equity out
    of the property, and then restrict [the defendant’s 35]
    percent to what was left after she’s already taken equity
    out of the property. It’s frankly, not in any way contem-
    plated by the judge, nor can we possibly read logically,
    into this judgment.’’
    The court provided the formula by which the parties’
    respective distributions were to be calculated. Applying
    the court’s formula to the facts produced the following
    results. The marital home was sold for $700,000; the
    net proceeds, after deducting allowable costs, was
    $656,032.50. The plaintiff’s 65 percent of the net pro-
    ceeds is $426,421.12 out of which she is to pay any
    mortgage or home equity line of credit encumbering
    the home. The defendant’s 35 percent share of the net
    proceeds is $229,611.38. The court further ordered that
    given that each party had taken $100,000 from the
    escrow account, the remaining sum of $125,977.65 was
    to be released to the defendant, and the plaintiff is
    to pay the defendant $3633.73 for the shortfall of the
    defendant’s 35 percent share. The plaintiff thereafter
    appealed to this court.
    On appeal, the plaintiff claims that the court (1)
    improperly calculated the net proceeds of the sale, (2)
    misconstrued the judgment of dissolution, and (3) modi-
    fied the dissolution judgment. Each of the plaintiff’s
    claims addresses the following question: What did
    Judge Doherty intend with respect to the distribution
    of the proceeds of sale. We, therefore, have consoli-
    dated our analysis of the plaintiff’s claims.7
    The plaintiff bases her claim on paragraph 5 of Judge
    Doherty’s supplemental memorandum of decision,
    which states: ‘‘When and if said real property is sold
    by the plaintiff, and after payment of the mortgage(s),
    broker’s fee, attorney’s fees and other usual and cus-
    tomary closing expenses, the net proceeds shall be
    divided [65 percent] to the plaintiff and [35 percent] to
    the defendant within [sixty] days of such sale.’’ (Empha-
    sis added.) The plaintiff argues that the mortgages that
    existed at the time of the sale were to be paid from the
    proceeds of sale, along with fees and costs of sale, prior
    to distributing to the parties their respective shares. We
    find this argument wholly unpersuasive. The plaintiff’s
    claim fails because she views paragraph 5 in isolation,
    rather than in the context of the whole judgment of
    dissolution, which includes the supplemental memoran-
    dum of decision, and the encumbrances on the marital
    home at the time it was sold.
    Resolution of the plaintiff’s claims requires us to con-
    strue Judge Doherty’s January 13, 2003 judgment of
    dissolution, as supplemented by the memorandum of
    decision he issued on June 3, 2003. ‘‘The construction
    of a judgment is a question of law for the court. . . .
    We review such questions of law de novo.’’ (Citation
    omitted; internal quotation marks omitted.) Robaczyn-
    ski v. Robaczynski, 
    153 Conn. App. 1
    , 4–5, 
    100 A.3d 408
    (2014). ‘‘As a general rule, judgments are construed in
    the same fashion as other written instruments. . . .
    The determinative factor is the intention of the court
    as gathered from all parts of the judgment. . . . The
    judgment should admit of a consistent construction as
    a whole. . . . To determine the meaning of a judgment,
    we must ascertain the intent of the court from the
    language used and, if necessary, the surrounding cir-
    cumstances.’’ (Citation omitted; internal quotation
    marks omitted.) Burke v. Burke, 
    94 Conn. App. 416
    ,
    421, 
    892 A.2d 964
     (2006). ‘‘Effect must be given to that
    which is clearly implied as well as to that which is
    expressed.’’ (Internal quotation marks omitted.) Schade
    v. Schade, 
    110 Conn. App. 57
    , 64 n.5, 
    954 A.2d 846
    , cert.
    denied, 
    289 Conn. 945
    , 
    959 A.2d 1009
     (2008).
    On appeal, the plaintiff complains that Judge Winslow
    improperly made her solely liable for the mortgages
    on the marital home at the time of the sale. In his
    memorandum of decision, Judge Doherty ordered the
    plaintiff to be responsible for the first mortgage and
    home equity debt and that the defendant was responsi-
    ble for the remaining mortgage and home equity loan
    at the time of the dissolution judgment. In the supple-
    mental memorandum of decision, Judge Doherty
    ordered the plaintiff to be responsible for the current
    mortgage and current home equity loan and to indem-
    nify the defendant for the same. Moreover, the court
    ordered an equitable lien in favor of the defendant in
    the amount of 35 percent of the home’s fair market
    value. Pursuant to the judgment, the plaintiff had the
    right to sell the marital home at any time and the pro-
    ceeds of sale were to be divided in accordance with
    the court’s distribution of the assets after the mortgages
    were paid. We agree with Judge Winslow’s construction
    of the judgment that the only mortgages to which Judge
    Doherty possibly could have been referring to were
    those known at the time of dissolution, not any future
    mortgages on the property. The parties agree that all
    mortgages in existence at the time of dissolution were
    paid prior to the time the marital home was sold. Para-
    graph 5, therefore, cannot be applicable to the circum-
    stances regarding the mortgages on the home at the
    time it was sold. Although Judge Doherty’s judgment
    permitted the plaintiff to sell the marital home, the
    judgment cannot reasonably be read to mean that he
    intended either of the parties to further encumber the
    equity in the premises, which the plaintiff did when she
    refinanced the first mortgage and home equity loan.
    The reason the plaintiff received less money from the
    sale of the home was due to the fact that she refinanced
    the mortgages in an amount greater than the debt for
    which she was responsible at the time of the judgment
    of dissolution.
    In her brief, the plaintiff relies on the case of Billings
    v. Billings, 
    54 Conn. App. 142
    , 144–147, 
    732 A.2d 84
    (1999), to support her argument. Billings, however,
    is factually distinguishable from the present case. In
    Billings, both parties were responsible for the mort-
    gages on the subject property, and the plaintiff wife
    was to be given a credit for the principal payments
    she made while she resided in the house. 
    Id., 146
    . The
    manner of calculating the respective proceeds from the
    sale of the Billings’ marital home are not applicable to
    the present case, in which Judge Doherty ordered the
    parties to be responsible for separate and distinct
    encumbrances on the marital home at the time of disso-
    lution.
    Moreover, the memorandum of decision ordered the
    plaintiff to be solely responsible for the first mortgage
    and the home equity loan at the time the judgment of
    dissolution was rendered and that she was to indem-
    nify the defendant in that regard. To indemnify means
    to ‘‘save harmless; to secure against loss or damage.’’
    (Internal quotation marks omitted.) Vibert v. Board of
    Education, 
    260 Conn. 167
    , 173, 
    793 A.2d 1076
     (2002).
    The plaintiff’s argument that the defendant was entitled
    to 35 percent of the net proceeds of the sale of the
    marital home after the two mortgages were deducted
    is contrary to the indemnification order. It also is con-
    trary to the 35 percent lien the defendant has on the
    marital home pursuant to the judgment of dissolution.
    The plaintiff contends that the practical effect of
    Judge Winslow’s postjudgment order was to distribute
    to her much less than Judge Doherty intended. She
    correctly notes that the judgment of dissolution did not
    allocate certain sums of money to the parties, but rather
    percentages of interest in the parties’ assets on the basis
    of undeterminable future events. She notes that the
    defendant was to receive 35 percent of the fair market
    value of the marital home if it was not sold in fifteen
    years from the date of judgment or 35 percent of the
    net proceeds of the sale if the home were sold within
    fifteen years. The plaintiff argues, however, that the
    judgment of dissolution intended the parties to be
    jointly responsible for all of the mortgages on the mari-
    tal home at the time of sale. The plaintiff’s argument
    fails because Judge Doherty ordered that the plaintiff
    was solely responsible for the first mortgage and home
    equity loan on the home at the time of dissolution and
    that she was to indemnify the defendant with respect
    those mortgages. Judge Doherty also ordered that ‘‘the
    defendant shall be responsible for all other mortgages
    or encumbrances on said property at the time of this
    judgment . . . .’’ The mortgages on the marital home
    at the time it was sold did not encumber the property
    ‘‘at the time of [the dissolution] judgment.’’
    The defendant paid the mortgage held by his mother
    and the home equity loan for his business. Those former
    debts no longer encumbered the title to the marital
    home at the time of the sale. The defendant’s 35 percent
    interest in the marital home was free of debt. Although
    the plaintiff paid off the first mortgage and home equity
    loan, she refinanced those mortgages, which increased
    the amount of debt for which she was obligated. If the
    plaintiff received less than Judge Doherty intended, it is
    because she refinanced the mortgages, which increased
    her debt obligation to an amount greater than that which
    existed at the time of the dissolution judgment. We
    agree with Judge Winslow that the plaintiff’s claim is
    not logical given the facts of this case and conclude
    that the court did not miscalculate the distribution of
    the proceeds of sale or misconstrue the judgment of dis-
    solution.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    Only Judge Doherty’s orders regarding the proceeds of the sale of the
    parties’ marital home are at issue in this appeal.
    2
    The court ordered the defendant to pay the plaintiff alimony and child
    support in the amount of $2500 per week until his obligation to pay child
    support ended. Thereafter the defendant was ordered to pay the plaintiff
    alimony in the amount of $2000 per week for fifteen years from the date
    of judgment.
    3
    The plaintiff’s motion for articulation/clarification concerned the mort-
    gages encumbering the marital home. The motion stated in relevant part:
    ‘‘Plaintiff is solely responsible for the mortgages in the [one] and [two]
    position and Defendant for [three] and [four]. Plaintiff seeks clarification
    in that if she refinances mortgages [one] and [two] in her name alone the
    Defendant will have to refinance [three] and [four] in his name alon[e].
    Failure to do so would prevent the Plaintiff from refinancing at more favor-
    able interest rates.’’ (Emphasis added.)
    4
    The defendant’s motion for articulation stated that Judge Doherty
    ordered that the defendant ‘‘have a lien against’’ the marital home in the
    ‘‘amount of 35 [percent] of its current fair market value.’’ The defendant
    requested that the court issue an order ‘‘to create, memorialize, give notice
    of and establish priority of the [l]ien, as to third parties.’’ Judge Doherty’s
    supplemental memorandum of decision addressed the defendant’s request
    for articulation in paragraph 7. The first six paragraphs of the supplemental
    memorandum of decision appear to be the court’s response to the plaintiff’s
    motions for contempt, although not so stated.
    5
    The court also ordered in paragraph 7 that ‘‘[t]he recording of the Memo-
    randum of Decision and the Supplemental Memorandum of Decision in this
    matter shall create, memorialize, give notice of and establish priority of the
    defendant’s equitable lien as to third parties.’’
    6
    The four mortgages encumbering the marital home at the time of the
    dissolution judgment were a first mortgage held by People’s Bank, a home
    equity line of credit secured by a mortgage held by People’s bank, a loan
    from the defendant’s mother secured by a mortgage, and a commercial loan
    for the defendant’s business secured by a mortgage in favor of People’s
    Bank. The parties agree that all of the mortgages that were on the marital
    home at the time of the dissolution judgment were paid prior to the sale
    of the home.
    7
    As a consequence of our conclusion that Judge Winslow properly con-
    strued the judgment of dissolution and correctly gave effect to its terms,
    there is no need for us to address the plaintiff’s claim that Judge Winslow
    improperly modified Judge Doherty’s martial dissolution judgment.
    

Document Info

Docket Number: AC36220

Filed Date: 12/16/2014

Precedential Status: Precedential

Modified Date: 12/9/2014