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Automatic Orders and Motions for Contempt
All Family law practitioners filing complaints for dissolution and custody must deal with the Automatic Orders which became effective in 2000, and which impose certain restrictions on the parties in connection with transfer, disposition, sale and/or removal of marital assets. The Court's interpretation of these orders regarding motions pertaining to this provision is inconsistent. Further, the remedy awarded by the Court often seems inappropriate and woefully inadequate.
Most often, a motion for contempt is the vehicle chosen for enforcement of this order. In Bartels v. Bartels, Judge Bassick found that the defendant removed personal property items (furnishings, rugs) from the parties' residence. The Court found a willful and intentional violation of the Automatic Orders and ordered that the offending party pay the plaintiff's attorney's fees in connection with the motion for contempt in the amount of $4,500.00. In Cunningham v. Cunningham, Judge Novak held that on three different occasions the plaintiff exercised stock options in varying amounts totaling proceeds to him, after taxes, of approximately $350,000.00 in violation of the Automatic Orders. The Court found that the plaintiff "compounded" his violation when he thereafter used much of the funds to "enjoy a lavish lifestyle for himself and his adult children." Further, he incurred a federal excise tax liability in the amount of $278,000.00. After a hearing, the Court found the plaintiff to be guilty of contempt and ordered that he pay $500.00 towards counsel fees and the sum of $500.00 for each violation totaling $1,500.00. The Court further ordered that the payment of counsel fees and fines pursuant to the motion would not be payable to the defendant until the time the assets of the parties were distributed pursuant to the judgment of dissolution. In Marfo v. Hagan, Judge Axelrod decided that the defendant committed a willful contempt when he withdrew the sum of $28,000.00 from his deferred compensation/profit sharing plan. The defendant attempted to justify the withdrawal claiming that the automatic orders were no longer in effect. (The matter had gone to judgment but there was an appeal pending.) The defendant used the funds to pay personal debts and bills. Judge Axelrod ordered the defendant to pay counsel fees to the plaintiff of $360.00.
Based on Marfo and Cunningham, it hardly seems worth the effort the parties took to have their motions for contempt heard. Certainly, the punishment levied by the Court seems disproportionate when compared to the amounts wrongfully used by the offending parties. In Bartels, the Court did not even order that the items which had been removed were to be returned the martial premises. Instead, the Court punished the defendant with an order of counsel fees to cover the cost of having the motion heard. The decision does not reveal the value of the items removed from the martial premises.
An interesting question was raised by the case of Lavariere v. Lavariere. The plaintiff wife filed a divorce action against the defendant on August 29, 2000. Counsel for the defendant filed an Appearance in that action on August 29, 2000. Prior to the filing of the divorce, on August 15, 2000, the defendant exercised a durable Power Of Attorney to his daughter from a prior marriage in the presence of counsel for the defendant. Thereafter, on November 13th, the defendant executed a Quit Claim Deed resulting in the parties becoming tenants in common. (They had previously owned the marital premises as tenants in survivorship.) The Quit Claim Deed was executed by the defendant's daughter pursuant to the Power Of Attorney. The defendant died on November 16, 2000. The plaintiff filed a motion for contempt for the violation of the Automatic Orders. Judge Caruso denied the motion for contempt and concluded that the more appropriate forum to resolve the issue was the Probate Court.
In Comtois v. Comtois, Judge Kocay found that when the defendant executed a $30,000.00 mortgage secured by real estate that had been jointly owned by the parties, it was a violation of the Automatic Orders. The defendant had retained an attorney and paid a $15,000.00 retainer for her representation. Subsequent to the payment of the retainer, she executed a $30,000.00 mortgage for the same purpose. The execution of the mortgage occurred after the service of the Automatic Orders. The Judge specifically found that the mortgage in the sum of $30,000.00 was beyond the terms of the exclusion in the Practice Book Rule in the payment of attorney's fees. The Court found that there was a contempt and as a result, ordered that the defendant's attorney release the mortgage immediately. Finally, the Court awarded $1,000.00 as reasonable attorney's fees regarding the contempt.
In Pawlicki v. Pawlicki, the plaintiff's attorney, at the time of the filing of dissolution, notified one or more financial institutions that "pursuant to automatic orders of the Court, any monies, funds, accounts, lines of credit, etc., included but not limited to account numbers . . . held in the name of either of the above referenced parties . . . are hereby frozen". The letter went on to reference a copy of the Automatic Orders which were enclosed and contained a notice that they were prohibited from making any payments without challenge. Defendant moved for an order requiring the plaintiff to notify the aforesaid financial institutions that there was no "freeze" on the defendant's accounts. Judge Pickard concurred and granted the defendant's motion. The Court interpreted the plaintiff's letter to imply that a court order existed restraining the financial institutions from permitting the defendant to have access to the funds on deposit. This was an improper interpretation of the Automatic Orders and was tantamount to a prejudgment garnishment without a hearing, in violation of the defendant's rights to due process of law. The plaintiff was ordered to send letters within seven days to all the financial institutions who had received plaintiff's letters.
It is clear that the Court seems to find contempt easily enough when there has been an obvious violation of the Automatic Orders. What remedy the Court fashions however, can lead one to believe that the existence of Automatic Orders are irrelevant, or that seeking enforcement is certainly not worth the effort.
Connecticut requires a pure "equitable distribution" of the property. This means that all property of the parties is subject to distribution. This includes property that was acquired before the marriage. When dividing property, the court considers the length of the marriage, the cause for the divorce and whether either party is at fault, the age, health, occupation, and employability of each party, the needs of each of the parties, and the contribution of each of the parties in the acquisition, preservation or appreciation value of the property.
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