Appellate Court Holds that Order Awarding Wife Rental Income from Former Marital Residence Constituted Impermissible Post Judgment Property Assignment

In a decision released on September 11, 2012, the Connecticut Appellate Court held that a post judgment trial court order permitting an ex-wife to rent the parties’ former marital residence, and use the proceeds to pay the mortgage, constituted an unauthorized post judgment property assignment.  Pursuant to the original dissolution judgment, the wife was awarded exclusive use and possession of the former marital residence.  The judgment also provided that the home would remain on the market for sale, with each party responsible for one-half of the monthly mortgage payments until it was sold.

Following the parties’ divorce, the ex-husband stopped paying his one-half share of the monthly mortgage obligation.  The ex-wife filed a motion for contempt, and after a hearing, the court found that the husband was in fact in willful violation of the court’s orders.  The ex-wife subsequently filed a post judgment motion for modification requesting permission to rent the home so she could use the proceeds to pay the mortgage.  According to the wife, the husband was still in default, and since she was unable to pay the entire amount, the home would likely be foreclosed upon.  The court granted the ex-wife’s request.

Years later the wife once again moved for a finding of contempt against the husband for failing to pay one-half of the mortgage, and prevailed.  The husband appealed, claiming that by requiring him to contribute toward the monthly payment, despite the fact that the rental income covered the monthly payments in full, the court effectively awarded the wife his one-half share of the rental proceeds.  According the husband, the court’s order constituted an impermissible post judgment property assignment.

The Appellate Court agreed.  In reaching its decision, it noted that, “The court’s judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment..”  Buehler v. Buehler, 138 Conn. App. 63 (2012).  Although C.G.S. § 46b-86(a) allows for the modification of periodic alimony and child support (unless the order specifically precludes modification) the statute does not apply to property assignments under C.G.S. § 46b-81.  As the Court in Buehler explained, “The statute, therefore, deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of  property of one party to the other party under General Statutes § 46b-81.”  “Although the court has jurisdiction to assign property in connection with C.G.S. § 46b-81, that assignment is not modifiable.”  Buehler, supra.

By: Michael D. DeMeola, Esq.

Should you have any questions regarding matrimonial matters, please feel free to contact Attorney Joseph Maya  He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.
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