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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.