Kupersmith v. Kupersmith

78 A.3d 860, 146 Conn. App. 79, 2013 WL 5275819, 2013 Conn. App. LEXIS 457
CourtConnecticut Appellate Court
DecidedSeptember 24, 2013
DocketAC 34849
StatusPublished
Cited by12 cases

This text of 78 A.3d 860 (Kupersmith v. Kupersmith) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kupersmith v. Kupersmith, 78 A.3d 860, 146 Conn. App. 79, 2013 WL 5275819, 2013 Conn. App. LEXIS 457 (Colo. Ct. App. 2013).

Opinion

[81]*81 Opinion

ALVORD, J.

The defendant, Corey Kupersmith, appeals from the judgment of the trial court denying his motion to vacate execution, injunction, exemption and other relief (motion to vacate) and granting an award of attorney’s fees to his former wife, the plaintiff, Tara Kupersmith. On appeal, the defendant claims that: (1) General Statutes §§ 52-350a and 52-350f prohibit a court from ordering a postjudgment property execution to enforce a family support judgment; (2) the court improperly lifted the temporary suspension it had imposed on implementation of the writ of execution because the 2004 dissolution judgment is void because it did not comply with the child support guidelines, was based upon an inaccurate accounting of the plaintiffs assets, and contained a contractual penalty for failure to pay child support in violation of public policy; and (3) the court abused its discretion in awarding the plaintiff attorney’s fees for defending the defendant’s motion to vacate.1 We affirm the judgment of the trial court with respect to the motion to vacate, but reverse the court’s award of attorney’s fees.

The record reveals the following facts and procedural history. On June 4, 2004, the court rendered a judgment dissolving the parties’ marriage. In the judgment, the court incorporated by reference both a joint parenting plan relative to the parties’ four children and a separation agreement; both documents were signed by the parties and their respective counsel. The separation agreement provided, inter alia, that the defendant would [82]*82pay the plaintiff alimony in the form of a lump sum payment of $11,700,000 and monthly periodic payments of $30,000; $1500 per child per month in child support; and 85 percent of the expenses incurred in the children’s private school education, extracurricular activities, sports, lessons, camp, or any other activity agreed upon pursuant to the joint parenting plan. It further provided that such payments would be subject to accruing interest if they were not timely paid.

Many postjudgment motions were filed by both parties pertaining to compliance with the terms of their separation agreement and joint parenting plan. On July 5, 2007, the parties entered into a stipulation (2007 stipulation), pursuant to the plaintiff’s motion for contempt, in which they agreed that the defendant owed the plaintiff one million dollars in satisfaction of two provisions in their separation agreement. After the 2007 stipulation, the plaintiff filed multiple motions for orders and motions for contempt, claiming that the defendant had not complied with the terms of the separation agreement. On July 19, 2010, the plaintiff filed a motion to enjoin the defendant’s use of his assets, as she claimed that the defendant had significantly reduced his liquid assets since May, 2009, consistently avoided meeting his support obligations, and was nearly $200,000 in arrears for periodic support payments and payments for the children’s education. Pursuant to the plaintiffs motion, the court, Malone, J., issued an order enjoining the defendant from transferring, selling, pledging, placing a hen on, or encumbering (1) any assets received from the repayment of a loan he made to Christina Wilkenson,2 (2) any assets that he previously had used as security to prevent foreclosure on the property owned by Wilkenson, and (3) his coin cohection, gun collection and life insurance policy. On [83]*83November 23, 2010, Judge Malone, pursuant to the plaintiffs application, issued an order for a prejudgment remedy in favor of the plaintiff in the amount of $760,000.

Thereafter, the defendant filed a motion for order and a motion for modification, and the plaintiff filed two motions for order and a motion for contempt. On February 23, 2011, the parties entered into a stipulation (2011 stipulation) resolving their five outstanding motions. The 2011 stipulation provided that the defendant owed the plaintiff a total sum of $1,050,000, which included: $850,000 for child support arrearage through February, 2011; education expenses arrearage, shared children’s expenses arrearage and interest; attorney’s fees to prosecute those claims of unpaid obligations; and $200,000 in future education expenses for the period of March 1, 2011, to June 30, 2012. The terms of the 2011 stipulation further provided that “time is of the essence,” and it set forth a payment schedule, an interest rate for late payments, and a monetary incentive for the defendant to make timely all payments. In the 2011 stipulation, the defendant offered security for the $1,050,000 owed in the form of a pledge of assets from a hedge fund, a mortgage deed or judgment lien encumbering his Greenwich residence, continuation of the injunction granted by Judge Malone, and a mortgage deed or judgment hen encumbering his real property on Martha’s Vineyard.

On November 23, 2011, the plaintiff filed motions for contempt and order, claiming that the defendant had violated the payment terms of the 2011 stipulation. One week later, the court, pursuant to the plaintiffs motions, ordered a property execution in the amount of $300,000 in favor of the plaintiff. On December 15, 2011, the defendant filed a motion to vacate—the motion from which this appeal arises—in which he claimed that “the execution is grounded on a void or voidable [84]*84agreement.” Specifically, he claimed that provisions of the 2004 dissolution judgment were void because it contained a nonmodifiable term of agreed upon child support, the support award deviated from the child support guidelines without providing justification for the deviation, the support award did not consider as part of the plaintiffs assets $11,700,000 in lump sum alimony, and the separation agreement contained a monetary penalty for failure to pay in violation of the public policy and laws of Connecticut.3 Further, the defendant claimed that “the execution is improper pursuant to Connecticut statute,” and he argued that a postjudgment property execution is an improper remedy for family support judgments pursuant to § 52-350a.

In response, the plaintiff filed an objection to the motion to vacate and sought reimbursement for the attorney’s fees she incurred defending the motion. On April 30, 2012, the court heard argument from both parties and testimony from the defendant with regard to the motion to vacate. At the conclusion of that hearing, the court stated that it was going to “suspend the execution of the writ of execution on a temporary basis until . . . the court rule[d] on th[e] jurisdictional [matter]” concerning its ability to issue a writ of execution in this case. The plaintiff then filed an amended affidavit of attorney’s fees, and the court gave the defendant one week to challenge the amount or reasonableness of the plaintiffs fee request. The defendant never filed a motion objecting to the reasonableness of the claimed [85]*85attorney’s fees. On July 10, 2012, the court issued a memorandum of decision, in which it denied the defendant’s motion to vacate and ordered the lifting of the temporary suspension on execution of the writ of execution. The court also ordered the defendant to pay $7500 of the plaintiffs attorney’s fees incurred defending the motion to vacate within sixty days of the judgment. On July 30, 2012, the defendant filed this appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
78 A.3d 860, 146 Conn. App. 79, 2013 WL 5275819, 2013 Conn. App. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kupersmith-v-kupersmith-connappct-2013.