Cook v. Cook

Citations: 38 Conn. App. 499; 661 A.2d 1043; 1995 Conn. App. LEXIS 333Docket: 14097

Court: Connecticut Appellate Court; July 18, 1995; Connecticut; State Appellate Court

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In the dissolution action, the defendant appeals postjudgment orders from the trial court that denied her motions for contempt and for a restraining order against the plaintiff. The defendant argues that the court incorrectly denied her contempt motion by concluding the separation agreement did not mandate the plaintiff to pay off an equity credit line, and that it wrongly denied her request to prevent the plaintiff from further encumbering the marital residence. The appeal was ultimately deemed moot and dismissed.

Key facts include the dissolution of the parties' 24-year marriage on May 31, 1989, with a separation agreement incorporated into the dissolution decree. This agreement specified the sale of the marital residence, allocating two-thirds of the net proceeds to the defendant and one-third to the plaintiff, after deducting certain expenses. The marital home was encumbered by a mortgage and an equity credit line at the time of dissolution. Additionally, provisions were made for an investment property jointly owned by the plaintiff and his business partner, including the use of its sale proceeds to pay the equity credit line on the marital property.

In 1994, the defendant filed a motion for contempt, asserting that the plaintiff had improperly further encumbered the investment property and taken additional advances from the equity credit line on the marital residence. She also sought a restraining order to prevent further encumbrances. During hearings, it was revealed that the investment property had been sold, but the proceeds were insufficient to fully satisfy the equity credit line due to the plaintiff's additional borrowing, which reduced the net proceeds available for distribution. The trial court indicated that calculating the net proceeds from the marital home sale was premature, given that it had not yet been sold, although the issue of regular payments on the equity credit line was acknowledged.

The plaintiff testified that he had to cover monthly payments on an equity credit line from his own funds after tenants vacated the investment property, resulting in no rental income. He withdrew additional funds from the equity line to reimburse himself for these payments. A $25,000 loan against the investment property was also necessary to complete construction and support ongoing payments on the equity line tied to the marital residence. During the proceedings, the plaintiff's counsel notified the court of a letter from the defendant that had frozen the bank account. The trial court clarified that the only issue at hand was the parties' responsibilities concerning the home equity loan, with the distribution of proceeds and liability from the equity line to be addressed upon the marital home's sale. On September 30, 1994, the court denied the defendant's motions, noting that the equity line was not frozen by any court order and that the plaintiff could not be held in contempt for using those funds. Additionally, a clause in the separation agreement prohibiting debt incursion was not part of the dissolution decree. Following the sale of the marital residence on March 31, 1995, the equity line was fully paid, and proceeds were distributed. The court highlighted that appellate jurisdiction requires an actual controversy for relief; since the equity line was resolved and there was no potential for practical relief, the appeal was dismissed as moot.

On April 12, 1995, parties were notified to address mootness at oral argument. The defendant's counsel argued that a contempt motion concerned the plaintiff's failure to pay off an equity credit line upon selling investment property. However, the trial court limited the contempt motion to the use of funds from the equity credit line prior to the sale of the marital residence. The court clarified that the obligation to pay the equity credit line upon the marital residence's sale would be decided later. The trial court focused on whether the plaintiff could withdraw from the equity credit line, explicitly stating that the distribution of liability would be determined post-sale. The defendant could file a contempt motion after the sale if dissatisfied with the proceeds' distribution.

The court acknowledged an exception to the mootness doctrine for cases that are "capable of repetition, yet evading review," citing criteria from *Loisel v. Rowe*. To qualify, a moot question must: (1) involve a limited duration action likely to become moot before appellate resolution, (2) have a reasonable likelihood of recurrence affecting the same party or a surrogate group, and (3) possess public importance. The court concluded the defendant's appeal did not meet these criteria, as the marital residence was sold and the equity credit line paid, reducing the likelihood of the issue arising again. Furthermore, the defendant did not represent a class of litigants or present a matter of public importance warranting appellate review. Thus, the appeal was dismissed as moot.