Welsh v. Martinez ( 2019 )

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D’ANNA WELSH v. WILLIAM V. MARTINEZ
(AC 41115)
Lavine, Prescott and Elgo, Js.
Syllabus
The defendant, W, appeals from the judgment of the trial court holding him
in contempt for violating the terms of an asset standstill order. The
plaintiff had brought an action against W seeking to recover damages
for, inter alia, tortious invasion of privacy. The matter was tried to a
jury, which returned a verdict in favor of the plaintiff in the amount of
$2 million, and the court awarded punitive damages in the amount
of $360,000. Thereafter, the court ordered that W was enjoined from
voluntarily transferring or encumbering any assets except business
assets in the ordinary course of business and personal assets for ordinary
living expenses, including court-ordered alimony and child support, and
also granted the plaintiff’s application for a prejudgment remedy. The
plaintiff subsequently filed a motion for contempt alleging that W trans-
ferred more than $2 million to his then-wife, C, by depositing all of his
wages directly into her bank account for the purpose of defeating the
asset standstill order. The trial court granted the motion for contempt
and imposed a compensatory fine of $2.2 million payable to the plaintiff
in the amount of $25,000 per month. From the judgment rendered
thereon, W appealed to this court. Held:
1. W’s claim that the trial court improperly found him in contempt because
the asset standstill order lacked sufficient clarity and was ambiguous
was unavailing: the plain language of the order prohibited W from depos-
iting the entirety of his income to C’s bank account over several years,
after his own bank account into which his wages previously were depos-
ited was frozen, for the purpose of shielding those assets from the reach
of a judgment creditor, the asset standstill order provided sufficient
notice to a reasonable person that the wholesale transfer of wages to
the account of a third party was not permitted, and evidence in the
record supported the court’s determination that W wilfully had violated
the order, including evidence that C’s bank account was opened for the
express purpose of placing the entirety of W’s wages outside the reach
of a judgment creditor; accordingly, the trial court did not abuse its
discretion in holding W in contempt.
2. W could not prevail in his claim that the trial court failed to consider his
ability to pay in imposing a compensatory fine: that court found that
W had sufficient income and other assets that rendered him financially
able to pay the monthly amount ordered, and that finding was substanti-
ated by evidence in the record, which included W’s testimony that he
earned a gross annual income of $1.2 million and that he had no other
long-term debt aside from monthly mortgage payments and certain
divorce related obligations, and statements from individual retirement
accounts held by W were admitted into evidence as full exhibits, and,
therefore, the court reasonably could have concluded that W had not
proven a financial incapacity to comply with its fine, and its finding that
W possessed sufficient income and other assets to pay that fine was
not clearly erroneous.
3. Although the trial court properly concluded that the plaintiff was harmed
by W’s contemptuous conduct, the court abused its discretion in impos-
ing a compensatory fine without the necessary factual basis: even though
the court properly found that the principal loss sustained by the plaintiff
was the inability to employ statutory collection procedures against W,
including the remedy of attachment as to the $2,220,400.67 in wages
that W deposited into C’s bank account, compensatory fines must be
confined to actual losses sustained as a result of noncompliance with
a court order, the ability to attach an asset is distinct from the ability
to execute on an attachment to satisfy an outstanding judgment, and
the court failed to furnish an adequate factual basis to support its deter-
mination that the plaintiff had proven $2.2 million in actual pecuniary
losses, as an attachment merely provides security for a judgment credi-
tor, who may execute on the attachment depending on a number of
factors, including the extent to which the judgment has been satisfied
and the existence of other attachments on the assets of the judgment
debtor, the court made no findings, apart from finding that the plaintiff’s
ability to attach such assets was impaired, to provide the requisite factual
basis for its compensatory fine and, in the absence of such findings,
could not ensure that the fine was confined to actual losses sustained;
accordingly, the case was remanded to the trial court for a new hearing
limited solely to the issue of damages to determine the measure of loss
that occurred as a result of W’s contemptuous conduct in violation of
the court’s order.
Argued February 4—officially released August 20, 2019
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged invasion of privacy, and for other relief,
brought to the Superior Court in the judicial district of
Hartford and tried to the jury before Robaina, J.; verdict
and judgment for the plaintiff, from which the defendant
appealed to this court, which affirmed the judgment;
thereafter, the plaintiff filed a motion to prevent fraudu-
lent transfer of property; subsequently, the court, Gra-
ham, J., entered an order enjoining the defendant from
transferring certain assets; thereafter, the court,
Robaina, J., granted the plaintiff’s application for a
prejudgment remedy; subsequently, the court, Moll, J.,
granted the plaintiff’s motion for contempt and ren-
dered judgment thereon, from which the defendant
appealed to this court; thereafter, the court, Moll, J.,
denied the defendant’s motion for articulation; subse-
quently, the defendant filed a motion for review with
this court, which granted the defendant’s motion for
review but denied the relief requested. Reversed in part;
further proceedings.
Jeffrey J. Mirman, with whom were David A. DeBas-
sio and, on the brief, Thomas J. Farrell, for the appel-
lant (defendant).
Irve J. Goldman, with whom, on the brief, was Timo-
thy G. Ronan, for the appellee (plaintiff).
Opinion
ELGO, J. The defendant, William V. Martinez, Jr.,1
appeals from the judgment of the trial court holding
him in contempt for violating the terms of an asset
standstill order. On appeal, the defendant claims that
the court improperly (1) found him in contempt because
that order lacked sufficient clarity and was ambiguous,
(2) failed to consider the defendant’s ability to pay
in imposing a compensatory fine, and (3) abused its
discretion in imposing that fine. We affirm in part and
reverse in part the judgment of the trial court.
In 2010, the plaintiff, D’Anna Welsh, commenced a
civil action (underlying action) against the defendant,
in which she alleged tortious invasion of privacy, negli-
gence per se, intentional infliction of emotional distress,
and negligent misrepresentation. At trial, the jury was
presented with ‘‘undisputed evidence’’ that the defen-
dant ‘‘conducted extensive covert surveillance of the
plaintiff over the course of several years. That surveil-
lance included intimate video transmissions from her
bedroom and shower, daily reports as to every notation
made on her computer, and GPS monitoring of her
vehicle. The jury also had before it evidence that
although the defendant swore under oath before the
[Superior Court] at [an] accelerated rehabilitation hear-
ing . . . that the plaintiff ‘had nothing to worry about’
and that no further surveillance equipment remained
in the plaintiff’s home, the transmissions from her bed-
room thereafter continued and the defendant continued
to receive daily e-mail reports from the spyware on the
plaintiff’s computer. The jury also was presented with
evidence that despite her request for the defendant to
leave her alone, he continued to appear unannounced
and uninvited at her home. His behavior terrified the
plaintiff, particularly when he informed her that ‘I can
hear you from outside your house.’ In addition, the
defendant’s angry and violent conduct left the plaintiff
scared for her life.’’2 Welsh v. Martinez, 157 Conn. App.
223, 241, 114 A.3d 1231, cert. denied, 317 Conn. 922, 118
A.3d 63 (2015). The jury thereafter returned a verdict
in favor of the plaintiff on all counts and awarded her
$2 million in damages, the propriety of which this court
affirmed on appeal. See id., 240–46.
After the jury returned a verdict in her favor, the
plaintiff filed a motion with the trial court seeking puni-
tive damages in the amount of her attorney’s fees. The
trial court, Robaina, J., granted that motion over the
defendant’s objection and awarded ‘‘the sum of
$360,000 as punitive damages in favor of the plaintiff.’’3
As a result, the plaintiff had an outstanding judgment
against the defendant in the amount of $2,360,000 as
of December, 2012.4
On the same day that the jury delivered its verdict,
the plaintiff filed two pleadings relevant to this appeal.
The first was an application for a prejudgment remedy.5
In the second, which was titled ‘‘Plaintiff’s Motion to
Prevent Defendant’s Fraudulent Transfer of Property,’’
the plaintiff alleged that she had ‘‘a reasonable belief
that [the] defendant will attempt to fraudulently transfer
property in violation of [the Uniform Fraudulent Trans-
fer Act, General Statutes § 52-552a et seq.].’’
On July 9, 2012, the court, Graham, J., held a hearing
on the latter motion. At its conclusion, the court entered
an order that stated: ‘‘The [defendant] is enjoined from
voluntarily transferring or encumbering any assets
except business assets in the ordinary course of busi-
ness and personal assets for ordinary living expenses,
including court-ordered alimony and child support’’
(asset standstill order).6
Weeks later, on July 31, 2012, Judge Robaina granted
the plaintiff’s application for a prejudgment remedy. In
so doing, the court ordered: ‘‘[The] plaintiff is allowed
to attach up to $2 million of the defendant’s property
and [the] defendant is to provide a disclosure of assets
by August 10, 2012. No wage garnishment to be sought
at this time.’’ On June 24, 2013, in response to a motion
by the plaintiff, the court entered an additional order
requiring the periodic disclosure of assets by the defen-
dant (asset disclosure order).7
On May 2, 2017, the plaintiff filed a postjudgment
motion for contempt and an accompanying memoran-
dum of law. In that motion, the plaintiff alleged that
the defendant voluntarily had transferred more than $2
million to Cristina Martinez (Cristina) ‘‘by depositing
his monies directly into her bank account for no valid
purpose but for the purpose of defeating [the] asset
standstill order.’’ The plaintiff also alleged that the
defendant had ‘‘concealed and refused to disclose his
personal property, financial bank and trading accounts,
and debts due and owing to him’’ in violation of the
asset disclosure order. The defendant filed an objection
to the plaintiff’s motion, to which the plaintiff filed
a reply.
The court, Moll, J., held an evidentiary hearing on
the plaintiff’s motion for contempt on August 2, 2017.
The plaintiff called three witnesses: David Baker, the
vice president of corporate security at Farmington
Bank; Jamie Cook, the custodian of records at People’s
United Bank; and the defendant.8 At that hearing, the
court received undisputed documentary and testimo-
nial evidence indicating that, at the time that the verdict
was rendered in the underlying action in 2012, the defen-
dant was the sole holder of an account with Farmington
Bank, into which he regularly deposited his wages.
When that account became frozen in October, 2012, as
a result of collection actions undertaken by the plaintiff,
the defendant began depositing his wages in their
entirety into an account with People’s United Bank held
solely by his then-wife, Cristina.9 By his own admission,
the defendant made those deposits in a deliberate
attempt to avoid the freezing of those funds. The court
found, and the defendant does not dispute, that he
deposited $2,220,400.67 into Cristina’s account between
October, 2012, and March, 2016.
In his testimony, the defendant confirmed that, at all
relevant times, he was employed as a heart surgeon.
His gross annual income at the time of the contempt
hearing was $1.2 million; after taxes, the defendant
earned approximately $700,000. With respect to his lia-
bilities, the defendant testified that he made monthly
mortgage payments of $7500 and monthly payments of
$14,000 for his ‘‘divorce-related obligations.’’ Beyond
that, the defendant acknowledged that he had no other
long-term debt. The defendant further testified that,
after depositing his wages into Cristina’s account, those
funds later were used to pay ordinary living expenses,
including court-ordered alimony and child support.10
In its memorandum of decision, the court concluded
that the defendant’s failure to disclose certain assets—
namely, a retirement account, a $50,000 promissory
note, three motor vehicles and a gun collection—did
not constitute a wilful violation of the asset disclosure
order. At the same time, the court found that the defen-
dant’s conduct in ‘‘depositing the entirety of his wages
into Cristina’s People’s United Bank account for the
period October 30, 2012 through March 24, 2016, consti-
tutes a series of wilful violations of the asset standstill
order. Because the entirety of his income was deposited
to an account held in the name of Cristina alone, he is
deemed to have ‘voluntarily transferr[ed] or encum-
ber[ed]’ his income (i.e., a personal asset) beyond what
was necessary ‘for ordinary living expenses, including
court-ordered alimony and child support.’ [The defen-
dant] engaged in such conduct knowingly, with full
knowledge of the asset standstill order, and for the
express purpose of placing the entirety of such funds
outside the reach of the plaintiff (i.e., with the intention
of depriving the plaintiff of significant statutory post-
judgment procedures authorized by chapter 906 of the
General Statutes). The court therefore finds [the defen-
dant] in civil contempt.’’ (Emphasis in original.) The
court thus imposed a ‘‘compensatory fine’’ of $2.2 mil-
lion ‘‘payable directly to [the plaintiff] in an amount of
$25,000 per month, until such fine is paid in full,’’ which
amount the court found represented ‘‘the plaintiff’s
proven, actual losses as a result of [the defendant’s]
wilful violations of the asset standstill order.’’ From
that judgment, the defendant appealed to this court.
The defendant subsequently filed a motion to stay
enforcement of the $2.2 million compensatory fine
pending resolution of the present appeal. In denying
that request, the court clarified that the compensatory
fine was not intended to supplement the $2,360,000
award that the plaintiff had received in the underlying
action. Rather, the court explained that ‘‘[a]ny payment
[the defendant] makes to the plaintiff in compliance
with the contempt order serves to offset the amount
of the judgment due.’’
I
The defendant contends that the court abused its
discretion in holding him in contempt because the asset
standstill order lacked sufficient clarity and was ambig-
uous. We disagree.
Before addressing the merits of the defendant’s claim,
we set forth certain general principles that govern our
review. ‘‘[O]ur analysis of a [civil] judgment of contempt
consists of two levels of inquiry. First, we must resolve
the threshold question of whether the underlying order
constituted a court order that was sufficiently clear and
unambiguous so as to support a judgment of contempt.
. . . This is a legal inquiry subject to de novo review.
. . . Second, if we conclude that the underlying court
order was sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s deter-
mination of whether the violation was wilful or excused
by a good faith dispute or misunderstanding.’’ (Citations
omitted.) In re Leah S., 284 Conn. 685, 693–94, 935 A.2d
1021 (2007).
‘‘As a general rule, [orders and] judgments are to be
construed in the same fashion as other written instru-
ments. . . . The determinative factor is the intention
of the court as gathered from all parts of the [order
or] judgment. . . . The interpretation of an [order or]
judgment may involve the circumstances surrounding
[its] making . . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.’’
(Internal quotation marks omitted.) State v. Denya, 294
Conn. 516, 529, 986 A.2d 260 (2010). Furthermore, it is
a fundamental tenet of construction that the question
of ambiguity is resolved by considering the language
in question as applied to the particular facts of the
case. See, e.g., Corsair Special Situations Fund, L.P.
v. Engineered Framing Systems, Inc., 327 Conn. 467,
473, 174 A.3d 791 (2018) (concluding that statute in
question ‘‘is ambiguous as applied to the facts of the
present case’’); State v. Crespo, 317 Conn. 1, 10 n.10,
115 A.3d 447 (2015) (‘‘[a] statute may be clear and unam-
biguous as applied in one context but not in another’’);
Lexington Ins. Co. v. Lexington Healthcare Group,
Inc., 311 Conn. 29, 42, 84 A.3d 1167 (2014) (language
in contract must be construed in circumstances of par-
ticular case and cannot be found ambiguous in
abstract).
With those principles in mind, we begin by noting
the context in which the asset standstill order arose.
Weeks prior to its issuance, a jury returned a $2 million
verdict against the defendant. Immediately thereafter,
the plaintiff filed a ‘‘Motion to Prevent the Defendant’s
Fraudulent Transfer of Property,’’ in which she averred
in relevant part that she had ‘‘a reasonable belief that
[the] defendant will attempt to fraudulently transfer
property . . . .’’ Following a hearing, the court issued
the asset standstill order, stating in relevant part that
the defendant ‘‘is enjoined from voluntarily transferring
or encumbering any assets except . . . personal assets
for ordinary living expenses, including court-ordered
alimony and child support.’’
The plaintiff concedes that the defendant initially
complied therewith, as his wages were deposited into
his Farmington Bank account in the months subsequent
to the issuance of the asset standstill order.11 When
that bank account was frozen in October, 2012, the
defendant began depositing all of his wages into the
People’s United Bank account held solely by Cristina
in an effort to shield them from a judgment creditor.12
That undisputed fact lies at the heart of the court’s
decision in the present case.
In its memorandum of decision, the court acknowl-
edged that the asset standstill order permitted the
defendant to utilize his personal assets to make pay-
ments on ordinary living expenses and to satisfy family
court judgments. The court nevertheless held that the
plain language of that order prohibited the defendant
from depositing the entirety of his income to Cristina’s
bank account over the course of several years. We
agree.
As our Supreme Court has explained, ‘‘[c]ivil con-
tempt is committed when a person violates an order of
court which requires that person in specific and defi-
nite language to do or refrain from doing an act or
series of acts. . . . One cannot be placed in contempt
for failure to read the court’s mind. . . . [A] person
must not be found in contempt of a court order when
ambiguity either renders compliance with the order
impossible, because it is not clear enough to put a
reasonable person on notice of what is required for
compliance, or makes the order susceptible to a court’s
arbitrary interpretation of whether a party is in compli-
ance with the order.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) In re Leah
S., supra, 284 Conn. 695.
On appeal, the defendant argues that the asset stand-
still order ‘‘may fairly be read to mean that [he] was
permitted to transfer or encumber personal assets for
ordinary living expenses and court-ordered alimony and
support payments.’’ We do not quarrel with that con-
tention. To the extent that the defendant made any
voluntary transfers of his personal assets to pay such
expenses, including ones made from funds contained
in his Farmington Bank account in 2012, those transfers
certainly complied with the terms of the asset standstill
order. This case, however, is not about transfers of the
defendant’s personal assets to pay qualifying expenses.
Rather, this case is about the transfer13 of the defen-
dant’s wages (1) in their entirety, (2) into the bank
account of a third party, (3) subsequent to the freezing
of the defendant’s own bank account into which his
wages previously were deposited, (4) for the purpose
of shielding those assets from the reach of a judgment
creditor. We reiterate that ambiguity is determined by
considering the language in question as applied to the
particular facts of the case. Guided by that precept, we
agree with the trial court that the voluntary transfer of
the defendant’s wages in their entirety into Cristina’s
account contravened the plain intent of the asset stand-
still order, irrespective of how those funds later were
dispersed.
Ambiguity arises if the language in question, when
read in context, is susceptible to multiple reasonable
interpretations. See, e.g., Francis v. Fonfara, 303 Conn.
292, 300, 33 A.3d 185 (2012). In the context of the facts
of this case, we conclude that the defendant’s interpre-
tation of the asset standstill order is not a reasonable
one. The asset standstill order provided sufficient
notice to a reasonable person that the wholesale trans-
fer of wages to the bank account of a third party was
not permitted. We therefore reject the defendant’s claim
that the asset standstill order, as applied to the facts
of this case, lacked sufficient clarity or was ambiguous.
We further conclude that the court’s determination
that the defendant wilfully violated the asset standstill
order is supported by the evidence in the record before
us. The defendant testified that his Farmington Bank
account became frozen in October, 2012, at which time
the defendant and Cristina responded by opening a
People’s United Bank account solely in Cristina’s name.
The court found, and the evidence reflects, that her
account was opened for the express purpose of placing
the entirety of the defendant’s wages outside the reach
of a judgment creditor. By so doing, the court found
that the defendant ‘‘engaged in a gross exercise of self-
help, which the law disallows, and wilfully disobeyed
the asset standstill order by depositing the entirety of
his wages . . . into Cristina’s bank account, outside
the reach of the plaintiff.’’ The court thus concluded that
‘‘[t]o exonerate [the defendant’s] wages-related conduct
would be an undue inducement to litigants’ exercise
of self-help.’’ (Internal quotation marks omitted.) We
concur with that assessment.
In rendering a judgment of contempt, the court recog-
nized that contempt is a drastic measure, but empha-
sized that ‘‘this case, which does not involve the collec-
tion of a ‘routine debt,’ falls well outside the parameters
of ‘normal circumstances,’ where the defendant has
gone to great lengths to deprive the plaintiff of the
ability to use statutory collection procedures. The court
concludes that extraordinary circumstances warrant
the court’s use of the contempt power in the present
case.’’ We agree and, therefore, conclude that the court
did not abuse its discretion in holding the defendant
in contempt.
II
The defendant claims that the court failed to consider
the defendant’s ability to pay in imposing a compensa-
tory fine. We do not agree.
In Ahmadi v. Ahmadi, 294 Conn. 384, 397, 985 A.2d
319 (2009), our Supreme Court addressed a similar
claim, as the defendant in that case argued that ‘‘the
trial court’s contempt order was improper because the
court failed to elicit evidence of the defendant’s finan-
cial ability before crafting a payment order.’’ In
response, the court clarified that it was the defendant
who bore the burden ‘‘to prove any financial incapac-
ity.’’ Id., 397. The court then articulated the standard
applicable to appellate review of such claims, stating:
‘‘Whether the defendant established his inability to pay
the order by credible evidence is a question of fact.
Questions of fact are subject to the clearly erroneous
standard of review. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . Because it is the trial
court’s function to weigh the evidence . . . we give
great deference to its findings.’’ (Internal quotation
marks omitted.) Id., 397–98.
After finding the defendant in contempt of the asset
standstill order, the court in the present case imposed
a compensatory fine of $2.2 million ‘‘payable directly
to [the plaintiff] in an amount of $25,000 per month,
until such fine is paid in full.’’ On appeal, the defendant
submits that ‘‘[t]here is no mention in the trial court’s
memorandum of decision that suggests, let alone finds,
that [the defendant] has an ability to pay the contempt
fine.’’ He is mistaken. On page sixteen of its memoran-
dum of decision, the court plainly states: ‘‘The court
finds that [the defendant] has sufficient income and
other assets that render him financially able to pay the
monthly amount ordered herein.’’
That finding is substantiated by the evidence in the
record before us. At the contempt hearing, the defen-
dant testified that he continued to earn a gross annual
income of $1.2 million from St. Francis Hospital, which
resulted in a net income after taxes in excess of
$700,000, or almost $60,000 per month.14 Also admitted
into evidence as full exhibits were statements from
certain individual retirement accounts held by the
defendant. A statement from an account with Charles
Schwab & Co., Inc., specifies an ‘‘account value’’ of
$802,888.19 as of May 31, 2017. A statement from an
account with American Funds, administered by Capital
Group, specifies an ‘‘[e]nding value’’ of $464,910.48 as
of June 30, 2017. Furthermore, with respect to his liabili-
ties, the defendant testified that he made monthly mort-
gage payments of $7500 and monthly payments of
$14,000 for his ‘‘divorce-related obligations.’’ Beyond
those obligations, the defendant testified that he had
no other long-term debt.
In light of the foregoing, the court reasonably could
conclude that the defendant had not proven a financial
incapacity to comply with the court’s fine of $25,000 per
month. The court’s finding that the defendant possessed
‘‘sufficient income and other assets’’ to pay that fine is
supported by evidence in the record and, therefore, is
not clearly erroneous.
III
The defendant also claims that the court abused its
discretion in imposing the $2.2 million compensatory
fine. Although we agree with the court’s conclusion that
the plaintiff was harmed by the defendant’s contemptu-
ous conduct, we disagree with its measure of the
resulting damages. A new hearing on damages, there-
fore, is warranted in the present case.
As this court recently observed, ‘‘[w]e review the
propriety of the fines imposed [for civil contempt] pur-
suant to an abuse of discretion standard.’’ Medeiros v.
Medeiros, 175 Conn. App. 174, 202, 167 A.3d 967 (2017).
With respect to subordinate findings of fact, ‘‘we review
the court’s factual findings in the context of a motion
for contempt to determine whether they are clearly
erroneous. . . . A factual finding is clearly erroneous
when it is not supported by any evidence in the record
or when there is evidence to support it, but the
reviewing court is left with the definite and firm convic-
tion that a mistake has been made.’’ (Internal quotation
marks omitted.) Wethersfield v. PR Arrow, LLC, 187
Conn. App. 604, 653, 203 A.3d 645, cert. denied, 331
Conn. 907, 202 A.3d 1022 (2019).
The following additional facts are relevant to this
claim. In its memorandum of decision, the court found
that the defendant wilfully deposited a total of
$2,220,400.67 into Cristina’s bank account in contraven-
tion of the asset standstill order and with the intent to
deprive the plaintiff of statutory collection procedures.
As the court found, ‘‘[b]y directing the deposit of his
wages [into Cristina’s bank account], [the defendant]
made it impossible for the plaintiff to attach’’ those
assets. On that basis, the court held the defendant in
contempt and imposed a compensatory fine of $2.2
million. In so doing, the court found that ‘‘[t]he amount
of the fine represents the plaintiff’s proven, actual
losses as a result of [the defendant’s] wilful violations
of the asset standstill order.’’ The court made no other
factual findings with respect to the plaintiff’s actual
pecuniary losses.
In response, the defendant filed a motion to reargue,
in which he alleged that the plaintiff had failed to pres-
ent ‘‘evidence of what particular damages she sustained
as a result’’ of his noncompliance with the asset stand-
still order. The defendant further alleged that the court
‘‘without explanation, apparently used as a basis for
the amount of the fine of contempt the total amount
deposited into the subject account. This amount is not
the proper measure of damages to be used in an order
of contempt. Rather, the amount must be specifically
related to the damages caused by the purported con-
tempt of the asset standstill order.’’ By order dated
November 30, 2017, the court denied that motion, stat-
ing: ‘‘The [defendant] has failed to demonstrate that
the court overlooked a controlling decision or legal
principle, that the court misapprehended the facts, that
the court’s decision contains inconsistencies, and/or
that the court failed to address a legal claim raised pre-
viously.’’
After commencing the present appeal, the defendant
filed a motion for articulation with the trial court, in
which he sought, inter alia, an articulation of the factual
basis of the court’s finding that the compensatory fine
‘‘represents the plaintiff’s proven, actual losses as a
result of [the defendant’s] wilful violations of the asset
standstill order.’’ In denying that motion, the court
stated that it had ‘‘re-reviewed the memorandum and
order. Based on that review, the court concludes that
the requested articulations are not necessary for the
proper presentation of the issues.’’ The defendant then
filed a motion for review with this court, in which he
requested appellate review of the court’s denial of his
motion for articulation. In its March 21, 2018 order, this
court granted review, but denied the relief requested
therein.
Our analysis begins with the well established princi-
ple that ‘‘a trial court possesses inherent authority to
make a party whole for harm caused by a violation of
a court order, even when the trial court does not find
the offending party in contempt.’’ O’Brien v. O’Brien,
326 Conn. 81, 96, 161 A.3d 1236 (2017). As this court
recently observed, ‘‘it has long been settled that a trial
court has the authority to enforce its own orders. This
authority arises from the common law and is inherent
in the court’s function as a tribunal with the power to
decide disputes. . . . [I]n a contempt proceeding . . .
a trial court has broad discretion to make whole a party
who has suffered as a result of another party’s failure to
comply with a court order.’’ (Citation omitted; internal
quotation marks omitted.) Nappo v. Nappo, 188 Conn.
App. 574, 596, 205 A.3d 723 (2019).
A close reading of its memorandum of decision indi-
cates that the court endeavored to do precisely that. The
contemptuous conduct in this case involves a deliberate
attempt on the part of the defendant to thwart the
plaintiff’s ability to utilize statutory collection proce-
dures by depositing the entirety of his wages into the
account of a third party in contravention of the asset
standstill order over the course of several years. In
addition, the compensatory fine that the court imposed
was intended to offset, rather than augment, the plain-
tiff’s recovery in the underlying action, as the court
made clear in its ruling on the defendant’s motion for
stay. The court, in short, sought to make the plaintiff
whole in the present case. Its decision to do so was
both a proper exercise of the court’s discretion and
understandable given the facts of this case.
We nevertheless disagree with the measure of dam-
ages set forth in the court’s memorandum of decision.
Under our law, compensatory fines must be narrowly
circumscribed, and must be ‘‘confined’’ to the actual
losses sustained by a contemnee as a result of noncom-
pliance with a court order. DeMartino v. Monroe Little
League, Inc., 192 Conn. 271, 279–80, 471 A.2d 638 (1984).
As our Supreme Court explained, ‘‘[j]udicial sanctions
in civil contempt proceedings may, in a proper case,
be employed . . . to compensate the complainant for
losses sustained. . . . Where compensation is
intended, a fine is imposed, payable to the complainant.
Such fine must of course be based upon evidence of
[the] complainant’s actual loss . . . . Civil contempt
proceedings are not punitive—i.e., they are not imposed
for the purpose of vindicating the court’s authority—
but are purely remedial. . . . [I]t is well settled . . .
that the court may, in a proceeding for civil contempt,
impose the remedial punishment of a fine payable to
an aggrieved litigant as compensation for the special
damages he may have sustained by reason of the contu-
macious conduct of the offender. . . . [S]uch a com-
pensatory fine must necessarily be limited to the actual
damages suffered by the injured party as a result of the
violation . . . .’’ (Citations omitted; emphasis altered;
internal quotation marks omitted.) Id., 278–79. More-
over, the court must furnish an adequate factual basis
to substantiate its actual loss determination. See Med-
eiros v. Medeiros, supra, 175 Conn. App. 203–204; DPF
Financial Holdings, LLC v. Lyons, 129 Conn. App. 380,
387, 21 A.3d 834 (2011).
The facts of this case plainly indicate, and the court
so found, that the principal loss sustained by the plain-
tiff was the inability to employ statutory collection pro-
cedures against the defendant, and the remedy of
attachment in particular.15 See General Statutes § 52-
279 et seq. Nonetheless, the ability to attach an asset
is both conceptually and procedurally distinct from the
ability to execute on an attachment to satisfy an out-
standing judgment.
The writ of attachment is an instrument intended to
secure the assets of a judgment debtor. See Bernhard-
Thomas Building Systems, LLC v. Dunican, 286 Conn.
548, 557, 944 A.2d 329 (2008) (‘‘[t]he purpose of the
prejudgment remedy of attachment is security for the
satisfaction of the plaintiff’s judgment’’ [internal quota-
tion marks omitted]); Rhode Island Hospital Trust
National Bank v. Trust, 25 Conn. App. 28, 40, 592 A.2d
417 (Foti, J., dissenting) (‘‘remedy of attachment pro-
vides necessary security for the creditor by protecting
it from the uncertainties of future events’’), cert.
granted, 220 Conn. 904, 593 A.2d 970 (1991) (appeal
withdrawn July 10, 1992); Cerna v. Swiss Bank Corp.,
503 So. 2d 1297, 1298 (Fla. App.) (‘‘a writ of attachment
. . . serves as a lien upon property which may be the
subject of execution upon a later-obtained judgment’’),
review denied, 513 So. 2d 1060 (Fla. 1987); Northwest-
ern National Ins. Co. v. William G. Wetherall, Inc., 267
Md. 378, 384, 298 A.2d 1 (1972) (‘‘[a]n attachment on a
judgment is a tool by which a judgment creditor can
reach the assets of a judgment debtor in the hands of
a third party’’).
At the same time, a properly served writ of attach-
ment does not, in and of itself, establish a judgment
creditor’s entitlement to liquidate or possess the asset
in question, but rather ‘‘enables a creditor to gain prior-
ity over any subsequent claim to the attached property,’’
and impairs the judgment debtor’s ability to dispose of
the asset. Mac’s Car City, Inc. v. DiLoreto, 238 Conn.
172, 179–80, 679 A.2d 340 (1996). As our Supreme Court
explained long ago, an attachment ‘‘has no effect but
to take the [asset in question] into the custody of the
law, to secure it against the alienation of the debtor,
and the attachment of other creditors, and to hold it
to be levied upon by an execution . . . .’’ Lacey v.
Tomlinson, 5 Day 77, 80 (1811); accord Camp v. Bates,
11 Conn. 50, 54 (1835) (when asset is attached ‘‘the
hand of the law is upon it’’). Furthermore, as with any
prejudgment remedy, a defendant whose assets are the
subject of an attachment is entitled to a hearing, at
which the court must take into account ‘‘any defenses,
counterclaims or set-offs’’ asserted by the defendant.
See General Statutes § 52-278d; TES Franchising, LLC
v. Feldman, 286 Conn. 132, 141, 943 A.2d 406 (2008)
(‘‘it is well settled that, in determining whether to grant
a prejudgment remedy, the trial court must evaluate
both parties’ evidence as well as any defenses, counter-
claims and setoffs’’).
We agree with the plaintiff that, had the defendant
deposited his wages into an account like the one he
maintained with Farmington Bank, she very likely
would have been able to avail herself of the collection
procedures codified in our General Statutes. For that
reason, the court properly found that the plaintiff was
deprived of the ability to utilize statutory collection
procedures as a result of the defendant’s contemptuous
conduct. The court found, and the record substantiates,
that the plaintiff lost the ability to attach $2,220,400.67
in wages that the defendant deposited into Cristina’s
bank account.
The court nevertheless failed to furnish an adequate
factual basis to support its determination that the plain-
tiff had proven $2.2 million in actual pecuniary losses
as a result thereof. An attachment merely provides secu-
rity for a judgment creditor; whether that judgment
creditor ultimately may execute on the attachment, in
whole or in part, to obtain satisfaction of an outstanding
judgment is an altogether different question, and one
that is dependent on a number of factors, including the
extent to which the judgment has been satisfied and
the existence of other attachments on the assets of
the judgment debtor.16 Furthermore, a judgment debtor
who believes that a particular attachment constitutes
an excessive levy may petition for relief from the court.17
As a result, a judgment creditor’s ability to execute on
an attachment remains a possibility, not a certainty.
We therefore fundamentally disagree with the plaintiff’s
contention that her actual losses are ‘‘equivalent to the
total amount of deposits that were redirected by [the]
defendant to [Cristina’s] account’’ and rendered
immune from attachment.
Apart from impairing the plaintiff’s ability to attach
such assets, the court made no findings that provide the
requisite factual basis for its $2.2 million compensatory
fine, such as the amount of attorney’s fees expended
by the plaintiff in pursuing the contempt motion. Absent
such findings, the court could not ensure that its com-
pensatory fine was confined to the actual loss sustained
by the plaintiff, as required under Connecticut law. See
DeMartino v. Monroe Little League, Inc., supra, 192
Conn. 279–80; DPF Financial Holdings, LLC v. Lyons,
supra, 129 Conn. App. 386–88.
It is axiomatic that this court, as an appellate tribunal,
cannot find facts. See State v. Edwards, 314 Conn. 465,
478, 102 A.3d 52 (2014). ‘‘[T]his appellate body does not
engage in fact-finding. Connecticut’s appellate courts
cannot find facts; that function is, according to our
constitution, our statute, and our cases, exclusively
assigned to the trial courts.’’ (Internal quotation marks
omitted.) Hogan v. Lagosz, 124 Conn. App. 602, 618, 6
A.3d 112 (2010), cert. denied, 299 Conn. 923, 11 A.3d
151 (2011). We therefore are not at liberty to resolve
the question of precisely what actual pecuniary losses
the plaintiff suffered as a result of the defendant’s con-
temptuous conduct.
Because the court’s finding that the plaintiff sustained
an actual loss of $2.2 million lacks the necessary factual
basis, we conclude that the court abused its discretion
in imposing a compensatory fine in that amount. The
parties thus ‘‘are entitled to a hearing on damages to
determine [the precise measure of the loss that]
occurred as a result of the defendant’s contemptuous
conduct in violation of the court’s order.’’ DPF Finan-
cial Holdings, LLC v. Lyons, supra, 129 Conn. App.
388. Accordingly, a remand to the trial court for a new
hearing limited solely to the issue of damages is nec-
essary.
We are mindful of our Supreme Court’s admonition
that ‘‘a trial court in a contempt proceeding may do
more than impose penalties on the offending party; it
also may remedy any harm to others caused by a party’s
violation of a court order.’’ O’Brien v. O’Brien, supra,
326 Conn. 99. In determining whether a compensatory
fine is warranted, the trial court on remand must con-
sider the question of actual pecuniary loss resulting
from the defendant’s contemptuous conduct, such as
attorney’s fees. The court should also consider the
impairment of the plaintiff’s ability to utilize statutory
collection procedures and fashion whatever relief that
the court, in its discretion, deems appropriate under the
facts of this case. Such relief may include the issuance
of an order requiring the defendant to return the
$2,220,400.67 in deposited funds to an account that may
be attached by the plaintiff.
The judgment is reversed only as to the order of
damages and the case is remanded for a hearing on
damages with respect to the court’s judgment of con-
tempt. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
William V. Martinez, Jr., was the sole defendant in the underlying civil
action commenced by the plaintiff in 2010. See Welsh v. Martinez, 157 Conn.
App. 223, 114 A.3d 1231, cert. denied, 317 Conn. 922, 118 A.3d 63 (2015).
The plaintiff subsequently commenced a fraudulent transfer action against
Martinez’s then-wife, Cristina Martinez (Cristina), and other family members
in the fall of 2016, which later was consolidated with the underlying civil
action by order of the court in 2017. Because the contempt motion at issue
in this appeal pertains solely to William V. Martinez, Jr., for purposes of
clarity, we refer to him as the defendant in this opinion.
2
For a more detailed account of the conduct that gave rise to this litigation,
see Welsh v. Martinez, supra, 157 Conn. App. 225–34.
3
The defendant did not challenge the propriety of that supplemental award
on appeal.
4
On April 23, 2013, the trial court granted the plaintiff’s motion for post-
judgment interest and ordered that ‘‘interest at the rate of 3.5 percent per
annum is awarded as of December 25, 2012.’’
5
We note that ‘‘[d]espite the apparent contradiction in terms, a prejudg-
ment remedy may be granted after the entry of judgment but before appellate
disposition in order to protect assets to satisfy the judgment.’’ Tadros v.
Tripodi, 87 Conn. App. 321, 335 n.9, 866 A.2d 610 (2005); see also Gagne
v. Vaccaro, 80 Conn. App. 436, 454, 835 A.2d 491 (2003) (‘‘a prejudgment
remedy is available to a party who has prevailed at the trial level and whose
case is on appeal’’), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004).
6
We refer to the court’s July 9, 2012 order as the ‘‘asset standstill order’’
both for convenience and because that is the nomenclature employed by
the parties and the trial court in this case.
7
The asset disclosure order required the defendant to provide quarterly
asset disclosures to the plaintiff under penalty of false statement. In those
disclosures, the defendant was obligated to identify: ‘‘(a) Any and all real
property, personal property, title, rights, and thing of value whatsoever, in
which [the defendant] has an interest from the period of July 9, 2012 through
the date of the disclosure; (b) Any and all wages paid to [the defendant],
including amounts, formulas, and their scheduled dates of disbursement,
from the period of July 9, 2012 through the date of the disclosure; (c) The
financial institution, location, account number, and monthly balances of all
bank or trading accounts ever held by, in the name of, or for the benefit of
[the defendant] from the period of July 9, 2012 through the date of the
disclosure; and (d) Any and all debts due and owing to [the defendant] from
the period of July 9, 2012 through the date of the disclosure.’’
8
The defendant did not call any witnesses during the contempt hearing.
9
At the contempt hearing, the defendant testified that although the
account was in Cristina’s name alone, she provided him with full access to
the account, including an ATM card with her name on it and her password
information to access the account online.
10
The evidence adduced at the contempt hearing includes statements
from Cristina’s account at People’s United Bank. Although those statements
provide specificity as to certain transactions, such as utility payments, they
provide no explanation for numerous other transactions. For example, the
November 27, 2014 statement includes a withdrawal of $6660 on October
28, 2014, for ‘‘Check 387,’’ a withdrawal of $13,382 on October 31, 2014, for
‘‘Check 389,’’ a withdrawal of $48,867.47 on November 3, 2014, for ‘‘Check
390,’’ a withdrawal of $851.01 on November 6, 2014, for ‘‘Check 392,’’ a
withdrawal of $1550 on November 7, 2014, for ‘‘Check 393,’’ a withdrawal
of $1484.45 on November 18, 2014, for ‘‘Check 398,’’ and a withdrawal of
$2217.76 on November 18, 2014, for ‘‘Check 399.’’
11
The court found, and the parties do not dispute, that the defendant’s
wages constituted ‘‘personal assets’’ as that term is used in the asset standstill
order. (Internal quotation marks omitted.)
12
The record before us includes a copy of a writ and attachment that the
plaintiff served on the main office of People’s United Bank for the purpose
of attaching Cristina’s bank account in connection with the present litigation.
The record also includes a copy of the January 2, 2014 letter that Norma
Jurnack, a legal service of process representative at People’s United Bank,
sent to the plaintiff’s counsel, in which she stated: ‘‘This letter is in response
to the Writ and Attachment . . . served on People’s United Bank . . . .
We have researched our records and found that [the defendant] [does] not
maintain accounts at [People’s] United Bank.’’
13
In construing the asset standstill order, we accord the language con-
tained therein its common meaning. See Barnard v. Barnard, 214 Conn.
99, 115, 570 A.2d 690 (1990). To ‘‘transfer’’ ordinarily means ‘‘to convey from
one person, place, or situation to another.’’ Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2003) p. 1328; see also Black’s Law Dictionary (9th Ed.
2009) p.1636 (defining ‘‘transfer’’ as ‘‘[t]o convey or remove from one place
or one person to another; to pass or hand over from one to another, esp.
to change over the possession or control’’). Application of that common
meaning compels the conclusion that the defendant transferred personal
assets when he deposited his wages into a third party’s bank account in
which he concededly had no legal interest.
14
A copy of the defendant’s December 26, 2015 pay stub was admitted
into evidence at the contempt hearing. That document reflects a net annual
income of $707,522.83. The record also contains the defendant’s July 3, 2017
affidavit, in which he averred in relevant part that he currently was ‘‘paid
one hundred thousand ($100,000) dollars per month.’’
15
As the court found in its memorandum of decision, ‘‘[b]y directing the
deposit of his wages [into Cristina’s People’s United Bank account], [the
defendant] made it impossible for the plaintiff to attach’’ those assets.
16
The court’s memorandum of decision contains no finding as to whether
the plaintiff had attached any other assets of the defendant besides his
Farmington Bank account. For example, the court made no finding as to
whether the plaintiff had filed an attachment on the defendant’s real property
known as 92 Northgate in Avon, despite the fact that Judge Robaina, in
granting the plaintiff’s application for a prejudgment remedy on July 31,
2012, ordered that the plaintiff was ‘‘allowed to attach property of the
defendant to the amount of $2 million including, but not limited to property
located at 92 Northgate, Avon, Connecticut . . . .’’ The defendant’s quarterly
disclosures of assets were admitted into evidence as full exhibits at the
contempt hearing. Exhibit 10 (Q) is his July, 2017 disclosure, in which
the defendant acknowledged his 100 percent interest in the 92 Northgate
property. That disclosure also included a copy of his separation agreement
with Cristina, which was incorporated into the judgment of dissolution
rendered by the Superior Court on May 5, 2017, and which provides in
relevant part that the defendant ‘‘shall retain the marital home located at 92
Northgate, Avon, Connecticut, free and clear of any claim by [Cristina]. . . .’’
The court also made no factual findings as to whether the plaintiff had
obtained any recovery on the underlying judgment in the five years that
had passed since the jury rendered a verdict in her favor, or the specific
amount thereof. In its memorandum of decision, the court found that Farm-
ington Bank notified the plaintiff on October 22, 2012, that it ‘‘was holding
$26,717.83’’ in response to the attachment filed by the plaintiff. The court
nevertheless made no finding as to whether the plaintiff recovered those
funds in the years between that attachment and the contempt hearing.
17
See, e.g., Glanz v. Testa, 200 Conn. 406, 411 n.3, 511 A.2d 341 (1986)
(‘‘[a] defendant who perceives that an attachment is excessive is free’’ to
bring claim to court’s attention); E. J. Hansen Elevator, Inc. v. Stoll, 167
Conn. 623, 629, 356 A.2d 893 (1975) (discussing case involving ‘‘an application
for the reduction or dissolution of a claimed excessive attachment made in
an action brought to the Superior Court’’); Hodgen v. Roy, 169 P. 1143, 1144
(Kan. 1918) (‘‘[a] court has authority to protect a defendant . . . by pre-
venting an excessive levy’’ in attachment of property); 6 Am.Jur.2d 700,
Attachment and Garnishment § 286 (2019) (‘‘[a] debtor is entitled to relief
from an excessive levy upon proper application to the court’’).