Valentine v. Valentine

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NORA LYNNE VALENTINE v. JOEL
ROBERT VALENTINE
(AC 37286)
Keller, Mullins and Lavery, Js.
Argued November 18, 2015—officially released April 5, 2016
(Appeal from Superior Court, judicial district of
Middlesex, Regional Family Trial Docket at
Middletown, Pinkus, J.)
John F. Morris, for the appellant (plaintiff).
Joel R. Valentine, self-represented, the appellee
(defendant).
Opinion
KELLER, J. The plaintiff, Nora Valentine, appeals
from the judgment of the trial court, rendered following
proceedings that occurred in accordance with a remand
order of this court, in which it entered financial orders
in the parties’ dissolution action. The plaintiff claims
that the trial court erred: (1) in fashioning its orders
regarding the ownership, refinance, and sale of the mari-
tal home; (2) in basing its alimony and child support
orders on gross, rather than net income; and (3) in
retroactively modifying prior court orders for mortgage
arrearages and fines for noncompliance with discovery
by the defendant, Joel Valentine. We reverse the judg-
ment of the trial court, in part, with respect to the
plaintiff’s third claim relative to fines that possibly had
accumulated for the defendant’s noncompliance with
discovery. We affirm the judgment in all other respects.
The following facts and procedural history are rele-
vant to this appeal. The parties to this matter were
married on July 8, 1990, in Malibu, California. They had
two children during their marriage, born on December
21, 1995, and on May 3, 2003. The parties originally tried
the issues before the court, Gould, J., and a judgment
dissolving their marriage entered on May 20, 2013.1 This
court reversed Judge Gould’s judgment in 2014, and
remanded this matter for a new trial on all financial
issues. Valentine v. Valentine, 149 Conn. App. 799, 808,
90 A.3d 300 (2014).
On remand, the court, Pinkus, J., conducted a trial
on all financial issues over the course of four days,
beginning on September 9, 2014, and concluding on
September 16, 2014. In its memorandum of decision of
September 26, 2014, the court set forth the following
findings of fact. ‘‘The parties resided in California from
the time of the marriage until 2004. The plaintiff was a
screen writer with limited success.2 The defendant was
a sound effects designer. In addition, the parties
attempted to develop websites and online content.
These ventures were not very profitable. The parties
relied primarily on the defendant’s income. All of their
earnings were either deposited into their joint accounts
or a corporate account, to which they both had access.
‘‘The parties moved to Connecticut in 2004 and
bought their current residence shortly thereafter. They
paid $440,000 for the house, which included at least
two rental units. They used $100,000 in savings and a
$10,000 gift from the plaintiff’s grandmother as a down
payment. The balance was by way of a bank loan
secured by a mortgage. The house is currently assessed
at $330,000, with an appraised value of $476,000 by
the Woodstock [tax] assessor. The current mortgage
balance is listed as $330,000 on the plaintiff’s financial
affidavit. The mortgage is currently subject to a modifi-
cation due to a delinquency. The plaintiff pays interest
only for the next several years and has a balloon pay-
ment of $76,000 due in 2035.
‘‘While living in Connecticut, the defendant continued
to provide services as a sound effects designer and
during periods without work utilized savings and an
inheritance from his father to pay bills. The plaintiff
pursued various ventures including unsuccessfully run-
ning for first selectman of Woodstock, editing online
content, and speaking at conferences. Little if any
income was derived from these sources. In 2011, the
defendant obtained his current employment at Lane
Construction Company. In 2013, he earned a gross
[income] of $75,135 from Lane Construction. He also
worked briefly as a [limousine] driver. The plaintiff
derives her income from the rental units and by board-
ing students from . . . Woodstock Academy. Although
she has not filed income tax returns for 2011, 2012
and 2013, it appears that she can earn at least $30,000
annually from these sources. In addition, she is applying
for jobs and should be able to earn at least minimum
wage for a thirty-five hour week for an additional
$15,000 annually.
***
‘‘The plaintiff accused the defendant of being abusive.
The defendant accused the plaintiff of being unfaithful.
There is no support for either of these allegations and
the court does not find either party more responsible
than the other in the breakdown of the marriage.
‘‘The plaintiff started this action on September 27,
2011. Immediately prior to the commencement of the
action, the plaintiff removed at least $10,000 from vari-
ous accounts. The plaintiff also removed the china,
silver, and her personal jewelry from the family home.
The plaintiff returned to her mother a 1958 Corvette
that had been in the [parties’] possession for a few
years, without the defendant’s permission. The plaintiff
also returned to her mother deeds to property that
had not been recorded. The plaintiff removed items of
furniture from storage and had them transported out
of state without the defendant’s permission. The defen-
dant removed the plaintiff’s name from some accounts,
changed the beneficiary on his life insurance to his
sister, and did not keep the bills current.’’ (Footnote
added.)
The court issued new financial orders after indicating
that it had considered the testimony and exhibits pre-
sented at trial, the statutory criteria pertaining to prop-
erty division and awards of alimony and child support
as expressed in General Statutes §§ 46b-81, 46b-82, and
46b-84, as well as other pertinent statutes, including
the child support and arrearage guidelines regulations.
The court ordered the defendant to pay $300 per
week in child support for the parties’ two children to
the plaintiff, retroactive to May 20, 2013, in accordance
with the child support guidelines. This amount was to
be adjusted to $215 per week effective June 27, 2014,
when the defendant was obligated to pay child support
for only one child. The court found that the defendant
had ‘‘an arrearage for pendente lite support in the
amount of $928, which shall be paid at the rate of $10
per week.’’ The court also ordered that ‘‘[f]rom the date
of judgment, the parties shall be equally responsible for
the minor children’s extracurricular activities, provided
that they are agreed to in advance by the parties in
writing, which agreement shall not be unreasonably
withheld . . . [but that n]either shall be responsible
for more than $1250 per year [for such] expenses.’’ The
court ordered that the defendant would ‘‘be responsible
for the children’s health insurance, for so long as they
are eligible, provided it is available to him through his
employer at reasonable expense.’’ Further, the court
ordered that ‘‘[u]nreimbursed medical and dental
expenses for the minor children shall be paid 46 percent
by the plaintiff and 54 percent by the defendant.’’ The
court retained ‘‘jurisdiction for educational support of
the party’s children pursuant to General Statutes § 46b-
56c,’’ but it did not enter a current order because there
was no evidence that the requirements of § 46b-56c (d)
and (e) had been met.
With respect to the marital home, the plaintiff was
awarded all right, title and interest in that property. She
was ordered to be solely responsible for the mortgage,
taxes, insurance, and all other expenses related to the
home. She also was ordered to ‘‘attempt to remove the
defendant from any obligation due on the mortgage on
at least an annual basis, and if not accomplished within
eight years of the date of [the] judgment, [she would
be ordered] to immediately place the property for sale.’’
Further, the court ordered that ‘‘[a]ny proceeds realized
from [such a] sale shall belong to the plaintiff.’’
The defendant was ordered to pay $250 per week in
alimony to the plaintiff, retroactive to May 20, 2013.3
This alimony obligation is modifiable and will terminate
only upon the death of either party, the remarriage of
the plaintiff, or, pursuant to General Statutes § 46b-86
(b), cohabitation by the plaintiff. The defendant also
was ordered to ‘‘maintain whatever life insurance he
[had] available through his employer, naming the plain-
tiff as beneficiary, so long as he [had] an alimony or
child support obligation to her.’’
The court allowed the plaintiff to ‘‘retain any interests
she may have to real property transferred to her by her
mother’’ and her interest in a pending personal injury
claim. She also was allowed to retain two of the parties’
three cars, as well as ‘‘any interest she has in the
1958 Corvette.’’
The defendant was allowed to retain his retirement
account and one of the parties’ three cars, a Ford Focus.
The parties were allowed to retain their respective bank
accounts, intellectual property, and personal belong-
ings in their possession without any claim by the other.
Each party was ordered to be responsible for debts
listed on their respective financial affidavits and their
own attorneys’ fees. This appeal followed. Additional
facts and procedural history will be set forth as nec-
essary.
We first note the relevant and well settled standard
of review in domestic relations cases. ‘‘An appellate
court will not disturb a trial court’s orders in domestic
relations cases unless the court has abused its discre-
tion or it is found that it could not reasonably conclude
as it did, based on the facts presented. . . . The trial
court’s findings are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . [T]o conclude
that the trial court abused its discretion, we must find
that the court either incorrectly applied the law or could
not reasonably conclude as it did.’’ (Internal quotation
marks omitted.) Keenan v. Casillo, 149 Conn. App. 642,
644–45, 89 A.3d 912, cert. denied, 312 Conn. 910, 93
A.3d 594 (2014). ‘‘In determining whether a trial court
has abused its broad discretion in domestic relations
matters, we allow every reasonable presumption in
favor of the correctness of its action.’’ (Internal quota-
tion marks omitted.) Von Kohorn v. Von Kohorn, 132
Conn. App. 709, 713, 33 A.3d 809 (2011). ‘‘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 convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Tracey v. Tracey, 97 Conn. App.
122, 125, 902 A.2d 729 (2006).
‘‘In reviewing the trial court’s decision under [an
abuse of discretion] standard, we are cognizant that
[t]he issues involving financial orders are entirely inter-
woven. The rendering of judgment in a complicated
dissolution case is a carefully crafted mosaic, each ele-
ment of which may be dependent on the other.’’ (Inter-
nal quotation marks omitted.) Kunajukr v. Kunajukr,
83 Conn. App. 478, 481, 850 A.2d 227, cert. denied, 271
Conn. 903, 859 A.2d 562 (2004).
I
The plaintiff’s first claim is that the court abused its
discretion in awarding her the marital home, but then
ordering her to attempt to refinance the mortgage on
the home at least once a year for eight years to eliminate
the defendant’s obligation on the mortgage, and to sell
the home and keep the proceeds in the event that she
could not refinance after eight years. The plaintiff main-
tains that there was no evidence that she would be
able to refinance the home. Furthermore, the plaintiff
contests the court’s order because the evidence shows
that she cannot obtain employment and has a poor
credit rating, and she claims that the order offends the
long settled principle that the ability to comply is a
material consideration in formulating financial awards.
The defendant argues that if the plaintiff has bad
credit, it was due to her own admitted actions in over-
drafting marital accounts and abusing the use of jointly
held credit cards. The defendant notes, however, that
the plaintiff’s representation that she will be unable to
restore her creditworthiness and refinance the marital
home over the next eight years is exaggerated, as she
has been able to pay the mortgage since it was modified
pursuant to a pendente lite agreement of the parties
approved and made an order of the court on September
4, 2012. Apart from the plaintiff’s own testimony, the
defendant argues, she failed to submit sufficient docu-
mentary evidence showing that she will be unable to
obtain credit for a lengthy period of time.
In Greco v. Greco, 275 Conn. 348, 363, 880 A.2d 872
(2005), cited by the plaintiff, our Supreme Court held
that financial orders that left the defendant destitute,
while giving the plaintiff all significant marital assets
as well as the defendant’s entire salary, reflected an
abuse of discretion. The court stated: ‘‘Under the trial
court’s order, the defendant was forced to the brink of
abject poverty by his obligations to pay the required
alimony and insurance premiums, and then stripped of
any means with which to pay them by the disproportion-
ate division of the marital assets. Such an order consti-
tutes an abuse of discretion in light of the defendant’s
age, poor health and compromised ability to work.’’ Id.;
see also Valentine v. Valentine, supra, 149 Conn. App.
805 (court abused discretion in setting excessive finan-
cial orders and failing to take into consideration party’s
ability to pay). Similarly, in Michel v. Michel, 31 Conn.
App. 338, 341, 624 A.2d 914 (1993), also cited by the
plaintiff, this court held that a trial court’s order that
required the plaintiff to purchase life insurance
reflected an abuse of discretion because there was no
proof of the funds required to obtain it or any proof of
the plaintiff’s insurability.
Contrary to the plaintiff’s argument, the defendant
argues that the present case is not analogous to either
Greco or Michel because the court’s order neither forces
the plaintiff to bear any additional, burdensome costs
nor drives her to the brink of financial destitution. We
agree with the defendant that the court did not abuse
its discretion in determining that the plaintiff should
either attempt to refinance the mortgage during the
next eight years or, at the end of eight years, sell the
home and keep any proceeds realized. The court’s inten-
tion was to ensure that the defendant eventually would
no longer remain liable on the mortgage when he was
being awarded no share of the marital home, the parties’
most significant asset, and the court did not abuse its
discretion in determining that within eight years, the
plaintiff must choose between refinancing the marital
home or selling it and keeping the proceeds.
In making its determination on the distribution of the
marital property, of which the marital home was the
parties’ only substantial asset, the court found that the
appraised value of the home was $476,000 and the mort-
gage balance was $330,000, as listed on the plaintiff’s
financial affidavit. Thus, the plaintiff, as sole owner of
the home, was awarded equity of nearly $146,000. The
court, in its decision, indicated that in determining the
distribution of the marital assets, it considered the
length of the marriage, the causes for the dissolution,
the age, health, station, occupation, amount and sources
of income, vocational skills, employability, estate, liabil-
ities and needs of each of the parties, as well as the
opportunity of each for future acquisition of capital
assets and income. See General Statutes § 46b-81 (c).
The court found that the plaintiff was in ‘‘reasonably
good health,’’ and that although she had a personal
injury claim pending, ‘‘it [did] not appear to affect her
earning capacity.’’ As we noted earlier, the court also
made reference to the plaintiff’s actions that suggested
her attempts to reduce the assets in the marital estate,
including the following: ‘‘Immediately prior to the com-
mencement of the action, the plaintiff removed at least
$10,000 from various accounts; [she] . . . removed the
china, silver, and her personal jewelry from the family
home; [she] returned to her mother a 1958 Corvette
that had been in the parties’ possession for a few years,
without the defendant’s permission; [she] also returned
to her mother deeds [conveying] to [her] property that
had not been recorded.’’
In considering whether the court had a reasonable
basis for its orders as to the marital home, we have
reviewed undisputed evidence pertaining to the factors
that the court considered in crafting its financial orders.
The plaintiff’s undisputed testimony showed that
although the plaintiff, who is fifty-two years old,
attempted to describe herself as someone who always
had been a ‘‘stay at home’’ mother, she earned a college
degree in communications from Pepperdine University
and had consistently employed her writing and speaking
talents throughout the marriage, as the parties
attempted to write, film, and produce online programs,
and create websites and online magazines. She testified
that she believed she would begin to make money build-
ing websites and continuing with her publication of
an online magazine. The defendant testified that the
plaintiff’s communication skills were such that she was
nominated to run for election as first selectman,
although she did not win. Woodstock Academy also
contracted with her to serve as a host mother for inter-
national students, and in 2013, she had earned a gross
of $18,000 from this contract.
On the basis of her communication skills and experi-
ence, which reflect a talented and responsible person,
the court reasonably concluded that in addition to the
rental income the property awarded to the plaintiff can
produce4 and the income for housing foreign students,
the plaintiff could, over the next few years, at least be
able to obtain weekly income equivalent to thirty-five
hours of employment at minimum wage. The plaintiff
also testified that although she currently had poor
credit, she had checked out ways to reestablish her
credit and she acknowledged that one way to build
credit was to regularly pay on a house loan, which she
had been doing. Her only documented evidence of a
denial of credit was a 2011 letter of rejection of her
application for a credit card from Chase Bank. She did
not provide any evidence that she had inquired into
refinancing the mortgage and had been rejected or any
documentation that she was denied a student loan for
her older son because her ‘‘credit was so poor.’’5 The
plaintiff also testified that she was expecting some com-
pensation from a lawsuit she had filed in 2013 as a
result of being rear ended in an automobile accident
and already had been offered a settlement that she had
rejected, an asset that the court permitted her to retain.
The plaintiff’s mother was paying her attorney’s fees.
The court also augmented her income by awarding her
$250 per week in periodic alimony.
Despite the court’s finding that the defendant had
been the primary wage earner during the marriage, and
had utilized savings and an inheritance of stock worth
$50,000 from his father to pay bills, as well as evidence
that the defendant also had contributed to the upkeep
of and improvements to the marital home, the court
awarded the defendant no interest in the home, but did
determine that it was fair to remove him from liability
on the mortgage after no more than an eight year period
of time. In sum, there was a reasonable basis in the
evidence for the court to conclude that in eight years’
time, the plaintiff would be capable of continuing to
pay the mortgage payments and improving both her
income and credit circumstances in order to refinance
the mortgage loan and relieve the defendant, who was
not awarded any part of the parties’ only significant
marital asset, from any liability on the loan. If the plain-
tiff is unable to do this after eight years, she will have
to sell the home, but at that time the parties’ youngest
child, born in 2003, will have attained majority and she
will be able to keep any proceeds from the sale. We
therefore conclude that the court’s order was fair and
equitable and that it did not constitute the imposition
of a financial obligation on the plaintiff that she cannot
possibly meet or that rendered her destitute. The court’s
orders with respect to the marital home do not offend
the basic elements of fairness in light of the plaintiff’s
age, education, talents, good health, sources of unsala-
ried income, and ability to seek gainful employment.6
She has not been ordered to refinance the home during
the next eight years, but only to make an attempt to
do so. She can choose not to participate in a refinancing
and elect to sell the home, in which the court deter-
mined she had substantial equity, pay off the mortgage
and keep any proceeds of the sale. In view of financial
orders and a property division where she obtained a
greater share of the marital assets, we conclude that
the court’s division of the parties’ sole significant asset
was not disproportionately unfavorable to the plaintiff.
II
The plaintiff’s next claim is that the court erred by
ordering child support and alimony based on gross,
rather than net income.7 In its memorandum of decision,
the court stated, ‘‘[t]he order entered by this court takes
into account the net income of the parties.’’ The court
then cited to several cases that indicate that a court
must base child support and alimony orders on the
available net income of the parties. Therefore, we con-
clude that there is no basis for the plaintiff’s claim that
the court based its child support or alimony award on
gross income.
‘‘[A] court must base its child support and alimony
orders on the available net income of the parties, not
gross income. . . . Whether . . . an order falls within
this prescription must be analyzed on a case-by-case
basis. Thus, while our decisional law in this regard
consistently affirms the basic tenet that support and
alimony orders must be based on net income, the proper
application of this principle is context specific. . . .
[T]he trial court is not required to make specific refer-
ence to the criteria that it considered in making its
decision. . . . [T]he mere notation by the court of a
party’s gross earnings is not fatal to its support and
alimony orders so long as its orders are not based on the
parties’ gross earnings.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Szynkow-
icz v. Szynkowicz, 140 Conn. App. 525, 530–31, 59 A.3d
1194 (2013).
In the present case, the court had before it the parties’
financial affidavits, reflecting their net incomes,8 and it
specifically stated that it had considered the ‘‘amount
and sources of income,’’ and had taken ‘‘into account
the net income of the parties’’ in fashioning periodic
alimony and child support orders. The court further
indicated that its award of $300 per week in child sup-
port, retroactive to May 20, 2013, and reduced to $215
per week as of the date the oldest child graduated from
high school, June 27, 2014, was ‘‘in accordance with the
child support guidelines,’’ which would have required a
consideration of the parties’ net incomes. Although the
court made passing references to the parties’ gross
incomes, it never stated that it was relying solely on
their gross incomes. Facially, the court’s consideration
of alimony and child support included evidence of the
parties’ net incomes. The court was not required to
make explicit findings as to net income. See Hughes v.
Hughes, 95 Conn. App. 200, 207–208, 895 A.2d 274, cert.
denied, 280 Conn. 902, 907 A.2d 90 (2006). ‘‘[W]e allow
every reasonable presumption . . . in favor of the cor-
rectness of [the trial court’s] action.’’ (Internal quotation
marks omitted.) Kelman v. Kelman, 86 Conn. App. 120,
122, 860 A.2d 292 (2004), cert. denied, 273 Conn. 911,
870 A.2d 1079 (2005). Thus, in light of the foregoing,
we conclude that the court did not improperly fashion
its alimony and child support orders based on the par-
ties’ gross incomes and find no abuse of discretion.
III
The plaintiff’s final claim is that the court erred in
retroactively modifying prior court orders for payment
by the defendant of mortgage arrearages and fines. Spe-
cifically, the plaintiff claims that the court failed to
order the defendant to pay $31,992 in mortgage pay-
ments that he previously had been ordered to pay during
the pendency of the dissolution action. The plaintiff
relies on, inter alia, a pendente lite order entered by
the court, dos Santos, J., on November 2, 2011. She
also claims that the court failed to award her the sum
of $16,200 as fines for the defendant’s noncompliance
with discovery. The plaintiff relies on a pendente lite
order issued by Judge dos Santos on November 28,
2012, wherein the defendant was held in contempt and
was assessed the sum of $150 a day for every day after
December 10, 2012, on which he continued to fail to
comply with the plaintiff’s discovery requests contained
in interrogatories and requests for production that she
had filed on Feburary 8, 2012.9
In Nowell v. Nowell, 157 Conn. 470, 482, 254 A.2d 896,
cert. denied, 396 U.S. 844, 90 S. Ct. 68, 24 L. Ed. 2d 94
(1969), our Supreme Court held that ‘‘[i]n a divorce or
separation action, a husband cannot be punished for
his civil contempt arising from noncompliance with
preliminary injunctions after a final judgment has been
rendered unless the final judgment itself awards dam-
ages for the civil contempt. . . . The defendant cannot
be punished for violating these preliminary injunctions
because final judgment has been rendered with no pro-
vision in that judgment for damages arising from the
civil contempt.’’ (Citation omitted.) Later, in Tobey v.
Tobey, 165 Conn. 742, 745, 345 A.2d 21 (1994), our
Supreme Court agreed with the ruling in Nowell and
held that ‘‘where a final decree of divorce has been
rendered, (any orders regarding pendente lite alimony
are merged in the final decree) and thereafter, no inde-
pendent action for contempt based on the temporary
alimony order can be properly brought.’’ The court,
however, did not preclude a court from assessing and
including in its final judgment an order ensuring pay-
ment of a financial obligation that had accrued as a
result of noncompliance with pendente lite orders. In
this regard the court stated: ‘‘Review may be made,
however, of that part of a final order which fails to cite
a defendant for contempt or which fails to incorporate
an accumulated arrearage of pendente lite alimony.
. . . [T]he question is whether the court was in error
in refusing to impose punishment for the alleged non-
compliance with its pendente lite order.’’ Id., 745–46.
We observe that, during the proceedings on remand
before Judge Pinkus, the plaintiff argued that the court
should order the defendant to pay her a mortgage
arrearage in the amount of $31,992, which she claimed
had accumulated over nine months, as well as fines for
discovery noncompliance in the amount of $16,200. The
plaintiff argued that the court was bound to enforce
orders previously issued by Judge Gould following the
first dissolution trial, which orders, she argued, had
been upheld by this court during the prior appeal.10
On the basis of our review of this court’s decision
in Valentine v. Valentine, supra, 149 Conn. App. 799,
however, we conclude that on remand, the court was
not bound by any orders issued by Judge Gould with
respect to a mortgage arrearage to be owed by the
defendant or to the cumulative fines he assessed against
the defendant for noncompliance with discovery. In
Valentine v. Valentine, supra, 149 Conn. App. 800 n.1,
we stated: ‘‘The defendant additionally claims that the
court improperly: (1) determined that he was responsi-
ble for the mortgage arrearage on the marital home and
improperly calculated the amount and form of such
payment . . . (4) violated the stay of appeal in ordering
him to pay various fines and fees; and (5) entered duplic-
itous orders with respect to the mortgage arrearage. In
view of our decision on the two dispositive claims, it
is not necessary to consider these other claims.’’ We
held that Judge Gould had violated the defendant’s right
to due process when it granted in part the plaintiff’s
motion for reconsideration and clarification without
affording the defendant adequate notice and an oppor-
tunity to object and to be heard,11 and further, that the
court abused its discretion by entering financial orders
that exceeded the defendant’s weekly income. Id., 805.
This court concluded in its previous decision that it
did not need to address the defendant’s claims as to
the mortgage arrearage and the payment of fines and
fees because, as a result of its reversal based on several
of the defendant’s claims, the defendant would have an
opportunity to address these issues pursuant to our
remand order, which required ‘‘a new hearing on all
financial issues.’’ (Emphasis added.) Id., 808. This court
noted that our review of financial orders entered by a
trial court in a dissolution matter is governed by the
‘‘ ‘mosaic doctrine,’ ’’ which views financial orders as a
seamless collection of interdependent elements, and
concluded that because ‘‘at least two of the defendant’s
claims challenging the court’s financial orders ha[d]
merit, the entire set of them must fall, and a new hearing
[must] be held regarding [all of] them.’’ Id., 803. Accord-
ingly, any reliance by the plaintiff on orders previously
issued by Judge Gould is unavailing.
A
We first consider the plaintiff’s argument that the
court erred in failing to award her $31,992 for nine
monthly mortgage payments that the defendant did not
pay between November 2, 2011 and September 4, 2012,
despite a pendente lite order that required him to do
so. The plaintiff maintains that an order issued by Judge
Graziani on September 4, 2012, ‘‘specifically provided
that the defendant was to remain responsible for the
mortgage arrearage.’’ We disagree with the plaintiff’s
characterization of that order.
The following additional facts are relevant. Just prior
to hearing closing arguments, Judge Pinkus indicated,
‘‘I’m going to take into account what Judge dos Santos
ordered, what Judge Munro ordered, what . . . every
judge in the file ordered. I’ll look at all of the orders.
I’ll take all of those orders into account. . . .’’
A pendente lite order issued by Judge dos Santos on
November 2, 2011, of which the court took judicial
notice, required the defendant to pay the monthly mort-
gage payment on the marital home. During the plaintiff’s
testimony, her attorney called another pendente lite
order to the court’s attention dated September 4, 2012,
based on an agreement of the parties approved by Judge
Graziani, in which the plaintiff assumed responsibility
for the mortgage payments effective that date. The Sep-
tember 4, 2012 agreement noted that a mortgage modifi-
cation process had been initiated by the defendant and
that it was still in progress at that time. It indicated
that ‘‘[t]he defendant will continue to be responsible
for the mortgage arrearage, with any sum that may be
due adjusted by the mortgage modification process
if approved.’’ (Emphasis added.) It also provided that
although the plaintiff was responsible for the mortgage
payments after September 4, 2012, she could allow them
to accrue as an arrearage pending the mortgage modifi-
cation process. The agreement further directed that the
defendant, the sole obligor on the mortgage, was to
negotiate as low a monthly payment as possible.
Judge Pinkus did not address the plaintiff’s claim
as to the mortgage arrearage in his memorandum of
decision, and the plaintiff did not seek any articulation
on that subject from the court. We can, however, derive
from the trial transcript the court’s factual findings rele-
vant to the plaintiff’s claim for the mortgage arrearage.
Cf. Murcia v. Geyer, 151 Conn. App. 227, 230, 93 A.3d
1189 (record inadequate to review defendants’ claim
because court did not issue written or oral decision,
defendants did not file notice pursuant to Practice Book
§ 64-1 or seek articulation, and no portion of trial tran-
script encompassed court’s factual findings with
respect to defendants’ claim), cert. denied, 314 Conn.
917, 100 A.3d 406 (2014).
At trial, in presenting the plaintiff’s claim that the
defendant should be found to still owe her the amount
of mortgage payments that he failed to make between
November 2, 2011 and September 4, 2012, the plaintiff’s
counsel indicated that on September 4, 2012, the parties
agreed that the marital home would be transferred to
the plaintiff, she would assume the mortgage payments
and collect rents on the property, and ‘‘we would defer
to another day the issue about [the defendant’s] nonpay-
ment of the mortgage. That’s part of my claim for mort-
gage arrearages in the proposed orders.’’ Plaintiff’s
counsel further represented that the marital home had
been transferred to the plaintiff prior to the May 20,
2013 judgment of dissolution in order to ‘‘finalize the
mortgage modification process prejudgment.’’ The
defendant indicated that he had transferred his interest
in the marital home to the plaintiff shortly after May
20, 2013. Upon hearing these representations, the court
concluded that both parties had agreed to the mortgage
modification as a means of addressing the mortgage
payment arrearage, and that the defendant had trans-
ferred his interest in the marital home to the plaintiff
either at the time of the mortgage modification or
shortly after the decision of Judge Gould on May 20,
2013.12 The court concluded, ‘‘Oh, okay, so there’s no—
so the arrearage . . . is taken care of.’’13
On appeal, the plaintiff does not reference or dispute
this finding by the court.14 She only maintains that Judge
Pinkus, just as she argues Judge Gould had done after
the first dissolution trial, should have honored Judge
Graziani’s September 4, 2012 order, which she claims
clearly held the defendant liable for the mortgage pay-
ments that he missed between November, 2011 and
August, 2012.
That order, however, did not state what the plaintiff
claims it did. It did not set forth an arrearage amount,
it did not hold the defendant in contempt for failure to
pay the mortgage, and it stated that any arrearage owed
would be subject to adjustment upon the mortgage
being modified. The interpretation of the court’s order
presents a question of law. See Ottiano v. Shetucket
Plumbing Supply Co., 61 Conn. App. 648, 651, 767 A.2d
128 (2001). We conclude that Judge Pinkus reasonably
construed the order as the adoption of a joint agreement
of the parties that, once the mortgage modification to
the lowest possible monthly payment was accom-
plished, any arrearage accrued by either party during
the time when the party was responsible for mortgage
payments would be eliminated by the fresh start that
the mortgage modification provided.
A similar issue arose in Papa v. Papa, 55 Conn. App.
47, 52, 737 A.2d 953 (1999), in which a defendant hus-
band claimed that a pendente lite order requiring him
to make certain mortgage payments merged into the
judgment of dissolution and terminated his obligation
under that order. This court disagreed, and it noted that
the parties in Papa had entered into a pendente lite
agreement that the defendant would make the mortgage
payments on the marital home which remained in effect
until the time of dissolution. Id., 53. Papa is distinguish-
able from the present case because the trial court in
Papa, in its decision, determined that the defendant
owed an approximate aggregate amount of mortgage
payments that the defendant, despite a court order, had
neglected to pay. Id., 49, 52–53. This court concluded
that the unpaid mortgage obligations ordered by the
trial court in Papa were, in effect, debt payments that
could not be taken away from the plaintiff wife when
the final dissolution decree was rendered. Id., 53–54.
This court reasoned: ‘‘Indeed, it would be error for a
trial court . . . to fail to incorporate an accumulated
arrearage of pendente lite alimony in a final order grant-
ing dissolution.’’ (Internal quotations marks omitted.)
Id., 55.
We conclude that the court in the present case reason-
ably could have determined that the record, including
the September 4, 2012 order of Judge Graziani, that the
parties’ agreement to a mortgage modification process
had eliminated the defendant’s and the plaintiff’s obliga-
tion for any mortgage payments for which either party
was responsible prior to the date on which the mortgage
modification was completed. The court ultimately
awarded the plaintiff all right, title, and interest in the
marital home, thus depriving the defendant of any legal
or equitable interest in the parties’ only significant asset.
Thus, an abuse of discretion has not been shown in the
court’s refusal to award an arrearage amount to the
plaintiff for the period of time in which the defendant
failed to pay the monthly mortgage.15
B
Next, we address the plaintiff’s claim that the court
should have awarded her $16,200 for the defendant’s
violation of a pendente lite order concerning compli-
ance with her discovery requests. We agree with the
plaintiff that the court should have awarded an amount
to the plaintiff as a sanction for the defendant’s discov-
ery noncompliance, but we do not find any support in
the record for the exact amount that the plaintiff claims.
Hence, we reverse the judgment in part and remand
the matter with respect to this claim solely for a hearing
to determine the amount of sanctions that should have
been awarded to the plaintiff and the method by which
the defendant must pay them.
We have undertaken an extensive review of the
record and begin by setting forth the procedural history
of the parties’ discovery saga.16 At the time that the
plaintiff filed her complaint seeking a dissolution, she
also filed a ‘‘Mandatory Disclosure and Production
Request’’ dated September 27, 2011.17 The plaintiff
alleged that on February 8, 2012, she propounded inter-
rogatories and requests for production to the defendant,
which he received on February 10, 2012. She also
alleged noticing a deposition of the defendant for March
6, 2012, on February 9, 2012, which she served on the
defendant on February 10, 2012. The defendant did not
file any objections to the plaintiff’s requests. On April
11, 2012, the plaintiff filed a motion to compel the defen-
dant to respond to her interrogatories, requests for pro-
duction, and deposition notice, in which she sought
counsel fees and other sanctions. This motion to compel
was heard on September 4, 2012, and Judge Graziani,
pursuant to an agreement of the parties, ordered both
parties to comply with all discovery requests within
thirty days.
On October 26, 2012, the plaintiff filed a motion for
contempt with multiple counts. The fourth count sought
to have the defendant held in contempt for his failure
to respond to her February 8, 2012 interrogatories and
requests for production in accordance with the order
entered by Judge Graziani on September 4, 2012.18 On
November 13, 2012, the plaintiff filed a request for pro-
duction with the court, seeking a variety of documents
dated back to January 1, 2011. A hearing was held on
the plaintiff’s October 26, 2012 motion for contempt
before Judge dos Santos on November 28, 2012. In her
proposed orders, the plaintiff alleged that ‘‘the defen-
dant has never responded to the interrogatories and
never provided a single document’’ in compliance with
her February 8, 2012 production requests.
On November 28, 2012, after a hearing, the court
found the defendant in wilful contempt with respect to
the allegations contained in the fourth count of the
plaintiff’s October 26, 2012 motion for contempt. The
court ordered the defendant to ‘‘respond fully to all
questions in the plaintiff’s interrogatories and comply
with all discovery requests by December 10, 2012.’’ The
court indicated that if the defendant failed to answer
all of the interrogatories and to provide all of the items
listed in the requests for production by December 10,
2012, the defendant was to be sanctioned $150 for each
day until the defendant was in compliance. The defen-
dant also was ordered to pay attorney’s fees incurred
by the plaintiff in the amount of $3250.19 The court
continued the matter to December 19, 2012, to monitor
compliance with its orders. On December 19, 2012,
Judge dos Santos again found the defendant in wilful
contempt of the court’s November 28, 2012 order for his
failure to respond fully to all questions in the plaintiff’s
interrogatories and to provide all items listed in her
requests for production, and noted that pursuant to the
court’s prior order, the defendant would be sanctioned
$150 for each day from December 10, 2012 until he was
in compliance.20
On January 4, 2013, the defendant filed an appeal from
the order of December 19, 2012. This appeal resulted in
a per curiam opinion in Valentine v. Valentine, 146
Conn. App. 907, 77 A.3d 215 (2013), released on October
29, 2013, in which this court summarily upheld the
order, finding no error. Accordingly, that portion of the
order now at issue, which assessed the defendant a fine
of $150 a day for every day beyond December 10, 2012,
that he remained in noncompliance with the plaintiff’s
discovery requests of February 8, 2012, was upheld.21
We find nothing in the record, however, subsequent to
December 19, 2012, to reflect that the court determined
the exact number of days during which the defendant
remained in noncompliance with plaintiff’s discovery
requests after December 10, 2012.
On January 24, 2013, the plaintiff filed another motion
for contempt alleging the defendant’s continuing non-
compliance with discovery.
On March 13, 2013, the court, Munro, J., issued the
following order with respect to the defendant’s provid-
ing the plaintiff with discovery:
‘‘The defendant will provide the plaintiff discovery
as follows:
‘‘a. Bank records for all existing accounts, including
statements, canceled checks and deposit tickets/
records for the past three years (2010, 2011 and 2012)
will be produced within fourteen days. Defendant will
provide a statement under oath that no other accounts
exist within seven days.
‘‘b. Income records, including W2s, 1099, copies of
any checks received for work done and tax returns, for
the past three years will be produced within fourteen
days. Defendant will provide a statement under oath
that no other income records exist within seven days.
‘‘c. Credit card statements for the past three years
(2010, 2011 and 2012) will be produced within four-
teen days.’’
We cannot determine from the record whether the
March 13, 2013 order was an attempt to resolve all
issues pertaining to discovery noncompliance or only
the issues raised in the plaintiff’s January 24, 2013
motion for contempt. There is no mention of any fines
owed by the defendant in the March 13, 2013 order.
Rather, the order states that ‘‘outstanding motions will
be addressed at trial.’’ On April 5, 2013, the plaintiff filed
another motion for contempt alleging that the defendant
had not paid the fines imposed on December 10, 2012,
by Judge dos Santos and that he had failed to fully
comply with the discovery order issued by Judge Munro
on March 13, 2013, although plaintiff alleged that the
defendant had sent the plaintiff, at some undesignated
time, 978 pages of ‘‘largely duplicative information.’’
On April 30, 2013, however, the plaintiff, in her
amended proposed orders, did not list as outstanding
motions either her January 24, 2013 motion for con-
tempt or her April 5, 2013 motion for contempt, both
of which addressed the defendant’s discovery noncom-
pliance. She did, however, claim that $16,200 in fines
for discovery noncompliance remained outstanding and
unpaid by the defendant pursuant to the orders of Judge
dos Santos on November 28, 2012.
On the second day of trial, September 10, 2014, the
plaintiff testified that she was owed $16,200, without
specifying how that sum had been derived. She admitted
that she was ‘‘not sure of the amount.’’ The plaintiff’s
attorney advised the court that the claim for $16,200 in
fines was based on the November 28, 2012 order of
Judge dos Santos and that the court should honor the
finding of Judge Gould that the defendant owed $16,200
because it had been affirmed on appeal. The court
advised counsel for the plaintiff that it doubted if any
judge ever actually had found what the accumulated
amount of fines for discovery noncompliance would
be. The court then indicated that, to resolve the issue,
it would have to make a finding that the plaintiff never
received the information requested in discovery, but
that once it was clear that she did receive the informa-
tion, either from the defendant or through her own
efforts, for example, through the use of subpoenas,
there was ‘‘no additional reason for the penalty’’ of $150
per day.
Ultimately, the court appeared to suggest that the
plaintiff was overreaching on this claim, as it advised
plaintiff’s counsel that it would not award the plaintiff
$150 per day. Furthermore, the court stated that ‘‘[i]f
it cost you money and time to go do that yourself,
maybe you can get that money and time paid for, but
you’re not going to get both.’’22 In its memorandum of
decision, in considering the plaintiff’s claim for the fines
that had accrued pursuant to the November 28, 2012
order of Judge dos Santos, the court stated that it was
‘‘not entirely clear from the court [record] when the
plaintiff did in fact receive discovery, and [accordingly]
the court [was] not inclined to impose fines on the
defendant for his failure to comply.’’23
Although, as stated previously, we conclude that the
court was not bound by Judge Gould’s finding that the
defendant owed the plaintiff fines in the amount of
$16,200, we do agree with the plaintiff that the court
should not have ignored the prior finding of contempt
by Judge dos Santos and the sanctions that he ordered
on November 28, 2012, as a result of the defendant’s
failure to comply with the plaintiff’s February 8, 2012
discovery requests.24 As we noted earlier, the court indi-
cated that in order to assess any discovery fines, it
would have to make a finding that the plaintiff never
received the information requested in discovery, but
that once it was clear that she got the information,
either from the defendant or through her own efforts,
there was no reason for any penalty to be imposed.
Ultimately, the court declined to find that the defendant
owed any of the $16,200 in fines claimed by the plaintiff.
The court found that ‘‘[t]he parties’ finances were not
at all complicated,’’ that the defendant never attempted
to hide anything from the plaintiff, that ‘‘the plaintiff
had equal access to most of the accounts that existed
prior to the commencement of the action,’’25 and that
‘‘the plaintiff was able to obtain all necessary discovery
herself, or from the defendant, or by subpoena from
the various financial institutions.’’ The court also found
that the ‘‘plaintiff was not prejudiced by any nondisclo-
sure by the defendant.’’ As a result, the court impermis-
sibly ignored the series of contempt findings and orders
of Judge dos Santos in November and December, 2012,
and shifted the burden of proving noncompliance with
plaintiff’s discovery requests back to the plaintiff, when
she already successfully had met that burden in late
2012 by persuading the court to hold the defendant
in contempt.
‘‘The interests of orderly government demand that
respect and compliance be given to orders issued by
courts possessed of jurisdiction [over] persons and sub-
ject matter. One who defies the public authority and
willfully refuses his obedience, does so at his peril.’’
(Internal quotation marks omitted.) Edmond v. Foisey,
111 Conn. App. 760, 767, 961 A.2d 441 (2008). The court’s
actions, in refusing to consider calculating and
assessing the previously imposed fines, based on a
determination of how long the defendant remained non-
compliant with the orders of Judge dos Santos, ignored
the importance of compliance with the court’s orders
and effectively endorsed the defendant’s continuous
disregard for them.26
The type of contempt found in the present case is
civil contempt. ‘‘[C]riminal contempt is conduct . . .
directed against the dignity and authority of the court,’’
whereas ‘‘civil contempt is conduct directed against the
rights of the opposing party.’’ Board of Education v.
Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d
1080 (1977). ‘‘A contempt is considered civil when the
punishment is wholly remedial, serves only the pur-
poses of the complainant, and is not intended as a
deterrent to offenses against the public. . . . Sanctions
for civil contempt may be either a fine or imprisonment;
the fine may be remedial or it may be the means of
coercing compliance with the court’s order and com-
pensating the complainant for losses sustained.’’ Id. The
purpose of the $150 daily sanction imposed in the pre-
sent case was to coerce compliance with the court’s
prior orders. Subsequent to Judge dos Santos’ findings
and sanctions that were ordered on November 28, 2012,
the defendant retained the right either to comply or to
demonstrate that all or part of his noncompliance was
excusable.27 He failed to take either of these actions
proactively, although for some period of time he still
was represented by counsel. To toll the accumulation
of the daily $150 fine imposed, the defendant needed
to establish, in a measured way, that he had complied
or was unable to do so. The ascertainment of what
fines, if any, were owed pursuant to the court’s order
required evidence, and not mere representations of
counsel or a self-represented defendant while not under
oath or subject to cross-examination. See Kelly v. Kelly,
54 Conn. App. 50, 60, 732 A.2d 808 (1999) (‘‘[a] judgment
of contempt cannot be based on representations of
counsel in a motion, but must be supported by evidence
produced in court at a proper proceeding’’ [internal
quotation marks omitted]). Unfortunately, at trial, much
of the presentation of the plaintiff’s claim for the fines,
and the defendant’s responses thereto, were argumenta-
tive, not evidentiary.
In the dissolution case of Ramin v. Ramin, 281 Conn.
324, 915 A.2d 790 (2007), our Supreme Court concluded
that the trial court had abused its discretion in refusing
to consider a plaintiff’s motion for contempt and request
for sanctions based on a defendant’s repeated failure
to comply with discovery orders. Id., 336, 345. One of
the improper reasons that the trial court had considered
to excuse the defendant’s noncompliance is similar to
a reason expressed by the court in the present case for
its not assessing any sanctions: the fact that the plaintiff
had obtained some of the information that she needed
on her own at her own expense, for example, through
the use of subpoenas. Id., 343. Such a ruling, that a
party’s noncompliance with discovery may be excused
if the other party manages to obtain the requested infor-
mation in some other manner, illustrated ‘‘precisely
how a court’s abdication of its responsibility to oversee
the discovery process, when confronted with a consis-
tently noncompliant party, benefits the wrongdoer and
encourages him to persist in his noncompliance.’’ Id.,
344.
In sum, we conclude that the court erroneously
absolved the defendant from his obligation to pay any
fine arising from his noncompliance with the plaintiff’s
discovery requests. It did so without justification. The
court ignored a previously adjudicated pendente lite
contempt motion—which sought to provide the plaintiff
with discovery information that she appropriately had
requested and had claimed to never have fully
received—and the sanctions that had resulted. Granting
such wholesale leeway to the defendant ‘‘encourage[s]
spouses to delay [abiding by a pendente lite order] until
the time of dissolution, hoping that the [pendente lite]
order . . . would be forgiven or changed at that time.’’
Elliott v. Elliott, 14 Conn. App. 541, 545, 541 A.2d 905
(1988). Placing the burden on the plaintiff rather than
on the defendant, who was found to have failed to
comply fully with the court’s orders, would be inconsis-
tent with the decision in Billington v. Billington, 220
Conn. 212, 595 A.2d 1377 (1991), in which our Supreme
Court articulated the requirement of full and frank
mutual disclosure in marital cases. Id., 219–22. In doing
so, the court analogized the marital relationship, even
in the context of a dissolution case, to ‘‘the special
relationship between fiduciary and beneficiary,’’ insofar
as the requirement of disclosure is concerned. Id., 221.
In the present case, the defendant, after having been
found in contempt for noncompliance with discovery,
should have been required to specifically establish, with
evidence, if and when he fully complied with the plain-
tiff’s February 8, 2012 discovery request subsequent to
December 10, 2012, the day on which the $150 daily
fine began to accrue.28 Having previously established
her entitlement to relief, it was not the plaintiff’s burden
to demonstrate, once again, the defendant’s failure to
comply with discovery.
Accordingly, we conclude that the court abused its
discretion in declining to determine the amount of an
award to the plaintiff for the amount of fines that had
accumulated pursuant to the November 28, 2012 order
of Judge dos Santos between December 10, 2012 and
May 20, 2013. The court first should have determined
what answers to interrogatories and what documents
were sought by the plaintiff in her February 8, 2012
interrogatories and requests for production, as well as
what remained outstanding as of November 28, 2012. It
was then the defendant’s responsibility to demonstrate,
with evidence, that he either had provided the plaintiff
with answers to those interrogatories and the docu-
ments requested or that it was impossible for him to
fully comply through no fault of his own.
Finally, we turn to a consideration of a proper rem-
edy. ‘‘We previously have characterized the financial
orders in dissolution proceedings as resembling a
mosaic, in which all the various financial components
are carefully interwoven with one another. . . .
Accordingly, when an appellate court reverses a trial
court judgment based on an improper alimony, property
distribution, or child support award, the appellate
court’s remand typically authorizes the trial court to
reconsider all of the financial orders. . . . We also have
stated, however, that [e]very improper order . . . does
not necessarily merit a reconsideration of all of the trial
court’s financial orders. A financial order is severable
when it is not in any way interdependent with other
orders and is not improperly based on a factor that is
linked to other factors. . . . In other words, an order
is severable if its impropriety does not place the correct-
ness of the other orders in question.’’ (Citations omitted;
internal quotation marks omitted.) Maturo v. Maturo,
296 Conn. 80, 124–25, 995 A.2d 1 (2010). We conclude
that in the present case, a remand for a rehearing on
the issue of the plaintiff’s claims for accrued fines as
a result of the defendant’s being held in contempt for
discovery noncompliance, pendente lite, is a severable
issue that requires factual findings by the trial court.
The contempt sanctions sought by the plaintiff are unre-
lated to the other financial orders regarding alimony,
child support, and property division. If the defendant
owes any amount of accumulated fines to the plaintiff,
such a finding would not call into question any of the
court’s other financial orders, and it would unfairly
reward the defendant if the accrued fines possibly were
considered as grounds to adjust other financial awards
made to the plaintiff.29
The judgment is reversed in part and the case is
remanded for a new hearing to determine the specific
amount of fines owed to the plaintiff in connection
with the court’s finding and order of contempt dated
November 28, 2012, and for a determination of an appro-
priate order for payment thereon. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
At the time of the first judgment, the parties had resolved issues of
custody and visitation by way of a parenting agreement that the court,
Adelman, J., previously had approved. See Valentine v. Valentine, 149 Conn.
App. 799, 801 n.2, 90 A.3d 300 (2014).
2
In fact, the plaintiff testified she had last sold a screenplay in 1990, the
year that the parties were married.
3
In the order pertaining to alimony, the court indicated that ‘‘[i]n the
event any adjustments are required due to prior orders, credits or payments
shall be at the rate of $25 per week.’’
4
In fact, the home also has a third rental unit, which the plaintiff was
occupying as her bedroom.
5
Apart from bad credit, the plaintiff’s lack of a salaried income and her
failure to file tax returns for the past three years also may have negatively
affected any loan or credit applications.
6
The plaintiff testified that she had looked ‘‘for all kinds of jobs,’’ but
that at the time of trial she had only one application pending for a job at
the Woodstock Academy. She testified that she still believed that what was
really going to make her money was doing what she had done in the last
few years, which included building websites and continuing to run her online
magazine despite the fact that these ventures had not generated much
income and she had no clients as a website manager. During the plaintiff’s
closing argument, subsequent to plaintiff’s counsel describing the plaintiff’s
‘‘ventures’’ during the marriage to help produce income as ‘‘worthwhile to
her,’’ the court stated, ‘‘[y]eah, but if she instead of renting the house out
to those kids that she has to feed, if she could move back into the house,
rent that third apartment and get a job, she may be able to do better.’’
7
The plaintiff also disputes the court’s findings as to gross income as
inaccurate, but because we conclude the court based its award of child
support and alimony on the parties’ net incomes, we need not address this
claim, which was not part of the plaintiff’s revised preliminary statement
of issues.
8
Both parties had submitted financial affidavits depicting their claimed
net incomes after mandatory deductions. The plaintiff claimed a net weekly
income of $739.96 and the defendant claimed a net weekly income of
$1021.94. The plaintiff also submitted a child support guidelines worksheet,
which reflected the amounts she claimed the defendant should be ordered
to pay for child support. In her testimony, the plaintiff requested that the
court award her $215 per week for one child, and $300 per week for the
period of time when both children were under the age of eighteen. The
court’s child support order granted her request. She further requested $375
per week in alimony for fourteen years. In closing argument, the plaintiff
requested a child support order in accordance with the guidelines, which
the court granted to her, and she requested an unspecified amount of alimony
for fourteen years. The court awarded her alimony in the amount of $250
per week without any durational limit.
9
Although the record reflects that the plaintiff also claimed she was owed
accumulated fines for the defendant’s failure to attend a parenting education
course and payment of $3250 in attorney’s fees ordered by Judge dos Santos
on November 28, 2012, and again by Judge Munro on March 13, 2013,
plaintiff’s counsel conceded during trial that the $3250 had been paid. As
to the claim for fines relevant to the failure of the defendant to attend a
parenting education course, the plaintiff has not briefed that claim and we
deem it abandoned.
10
We emphasize, however, that there is nothing in the record before this
court that indicates, prior to the issuance of financial orders pursuant to
the judgment of dissolution on May 20, 2013, all of which were reversed
and remanded for a new hearing as a result of the defendant’s appeal, that
any judge, including Judge Gould, ever indicated the basis for the calculation
of the specific amounts of mortgage arrearages and discovery noncompli-
ance fines that the plaintiff claimed were owed to her by the defendant.
11
In granting the plaintiff’s motion for reconsideration after the first disso-
lution trial, Judge Gould, without affording the defendant an opportunity
to object or to be heard, ordered the defendant to pay a mortgage arrearage
amount that included all mortgage payments due on the marital home from
November, 2011, until such time as the defendant, subsequent to the May
20, 2013 dissolution orders, deeded the property to the plaintiff. This order
was in complete derogation of a pendente lite order issued by Judge Graziani
pursuant to the parties’ agreement, on September 4, 2012, which made the
plaintiff responsible for mortgage payments due on the marital home effec-
tive that date and exceeded the amount claimed by the plaintiff. In her brief,
the plaintiff concedes that if the defendant owes any mortgage arrearage,
it is only for nine months of missed mortgage payments.
12
We note that the deed from the defendant to the plaintiff is not in
evidence.
13
Subsequent to the first judgment of dissolution issued by Judge Gould,
the plaintiff filed a motion for reconsideration and clarification in which she
admitted that there is an ‘‘ambiguity . . . because the parties participated in
mortgage modification, which altered the mortgage payment for the home by
re-capitalizing unpaid mortgage payments which added them to the principal
balance. This theoretically eliminates any ‘past due payment,’ and thus
arguably relieves the defendant of the order to pay the unpaid mortgage
payments.’’
14
Subsequent to the September 4, 2012 agreement, the plaintiff filed a
comprehensive motion for contempt dated October 24, 2012, which con-
tained a number of counts seeking contempt findings and fines, but it did not
seek payment of any mortgage arrearage allegedly owed by the defendant; it
only sought confirmation of the progress of the mortgage modification
process. On January 24, 2013, the plaintiff filed a motion for contempt
regarding payment of the mortgage, pendent lite in which she claimed a
fourteen month arrearage ‘‘totaling in excess of $32,000’’ and made no refer-
ence to the September 4, 2012 order of Judge Graziani, which obligated
the plaintiff to pay the mortgage commencing in September, 2012, or the
November 2, 2011 order of Judge dos Santos, which only obligated the
defendant to pay the mortgage payment commencing November, 2011. Just
before the first trial before Judge Gould, the plaintiff asked the court to
rule on this pending motion. By that time, the mortgage had been modified.
The defendant was never held in contempt for failure to pay the mortgage
during the period for which he was obligated pursuant to the order of
November 2, 2011.
15
Further, we note that the plaintiff never presented any evidence to the
court that calculated the exact amount that was unpaid during that nine
month period, an amount which also should have taken into account the
defendant’s prior payments on the mortgage arrearage as a result of Judge
Gould’s orders. Despite the automatic stay imposed after the defendant’s
second appeal, these orders secured $200 or $400 per week by way of a
wage garnishment for an undisclosed time period after the first judgment
of dissolution was entered on May 20, 2013. See Valentine v. Valentine,
supra, 149 Conn. App. 802 n.3. At trial, the plaintiff admitted to receiving
$800 a month for mortgage arrearage payments, but she stated that she did
not use the money to pay down the mortgage principal. The defendant also
claimed that even if he owed payments for the mortgage arrearage, the
amount that the plaintiff was claiming was too high.
16
Family practitioners would be well advised to consider avoidance of
the tortuous process of filing and refiling nondescript contempt motions,
which occurred in the present case to compel discovery, and consider
utilization of §§ 25-32A and 25-32B of the Practice Book. Practice Book § 25-
32A, which took effect on August 15, 2011, states: ‘‘If a party fails to comply
with a discovery request or a discovery order in any manner set forth in
Section 13-14 (a), the party who requested such discovery or in whose favor
the discovery order was made may move to compel compliance with the
request or order. The moving party shall specify in a memorandum in support
of his or her motion the discovery sought and the remedy sought. The
party to whom the discovery request or order was directed shall, in a
memorandum, specify why the discovery has not been provided or why
such party has not complied with the discovery order. If the party to whom
the discovery request or order was directed claims that the discovery has
been provided or order has been complied with, he or she shall detail
with specificity what discovery was provided and how compliance with the
discovery order was made.’’ Practice Book § 25-32B provides: ‘‘The judicial
authority may appoint a discovery special master to assist in the resolution
of discovery disputes. When such an appointment is made, the judicial
authority shall specify the duties, authority and compensation of the discov-
ery special master and how that compensation shall be allocated between
the parties.’’
In the present case, informing the court and the defendant in writing
as to what items were specifically required for discovery compliance and
providing the defendant with an opportunity to specifically respond in writ-
ing may have led to an earlier, and less costly, resolution of the issue. In
the alternative, the court could have enlisted the assistance of a special
master to resolve the issue as opposed to imposing the accumulation of
fines and subsequently paying scant attention to the achievement of a timely
and satisfactory resolution of the discovery dispute.
17
See Practice Book § 25-32.
18
This motion did not seek to have the defendant held in contempt for
failing to attend a deposition.
19
Because the court’s order also addressed other contempt issues, it is
not clear on what the attorney’s fees had been expended. The court did not
rule on a motion to compel filed by the plaintiff on November 28, 2012,
seeking sanctions for the defendant’s failure to comply with the request for
production served on the defendant and filed with the court on November
13, 2012. Such a ruling would have been premature, as the defendant had
thirty days to comply with any discovery request. See Practice Book §§ 13-
7 and 13-10. Thus, the daily fine imposed by Judge dos Santos did not pertain
to the defendant’s lack of compliance, if any, with the plaintiff’s November
13, 2012 discovery requests.
20
Practice Book § 13-14, applicable to family matters pursuant to Practice
Book § 25-31, provides in relevant part: ‘‘(a) If any party has failed to answer
interrogatories or to answer them fairly . . . or has failed to respond to
requests for production . . . the judicial authority may, on motion, make
such order as the ends of justice require. . . .’’
21
It would not appear that enforcement of the $150 per day fine was
stayed as a result of the defendant’s appeal from the December 19, 2012
order, due to the fact that the prior contempt finding and orders of November
28, 2012, in which the daily fine was first imposed, were not the subject of
the defendant’s appeal. The plaintiff did move to terminate the automatic
stay, but there is no record of any ruling on that motion.
22
The plaintiff also was seeking an award of attorney’s fees for, inter alia,
time spent in trying to enforce the defendant’s compliance with discovery.
The court did not award the plaintiff any attorney’s fees.
23
The plaintiff claimed, through her counsel, that Judge Gould made a
finding that the defendant was in compliance with discovery at the com-
mencement of the first trial, but we find nothing in the record to confirm
such a finding was ever made.
24
The plaintiff also filed additional discovery requests on November 13,
2012, immediately prior to Judge dos Santos’ order of November 28, 2012.
We observe that due to the fact that the defendant would have to have been
allowed thirty days to comply with the subsequent request, it could not
have been the subject of the contempt proceeding held on November 28,
2012. See Practice Book §13-10. It also is not clear whether Judge dos Santos’
December 19, 2012 order also found the defendant to be noncompliant with
the plaintiff’s November 13, 2012 discovery requests.
25
The defendant maintained at trial that the plaintiff violated a November
2, 2011 order of Judge dos Santos by not providing the defendant access
to his business computer, which he claimed impaired his ability to comply
with discovery, The plaintiff admitted to removing some of the computers
in the marital home and taking them to Ohio on September 27, 2011.
26
We acknowledge the court’s concern, as expressed to plaintiff’s counsel,
that the defendant, due to his financial situation and the plaintiff’s other
requested financial orders, might have had difficulty paying the amounts
claimed for the mortgage arrearage and fines. The court indicated, ‘‘I under-
stand you want to get paid, but you have to show me the pile of money I’m
supposed to pay it from because I don’t see it.’’ As noted previously, however,
upon the defendant’s appeal to this court of the finding of contempt and
the sanctions ordered, this court upheld them, signifying that they were
found not to be coercive, punitive, or absolute.
27
There is always the question of whether the contemnor indeed has
the ability to purge himself when there has been a punishment imposed.
Otherwise, the sanction imposed would cease to be remedial and become
wholly punitive in actual operation. As the order of per diem fines until
purged entered in this case does not specify precisely what discovery the
defendant had to provide to the plaintiff in order to purge himself, it may
be that on remand he can show that he met all those requirements which
were reasonably within his power to meet. See Mays v. Mays, 193 Conn.
261, 266–67, 476 A.2d 562 (1984). In addition, the defendant may be able to
claim credit for $200 weekly payments that were deducted from his paycheck
by means of a wage withholding order issued by Judge Gould, after the first
dissolution trial, and that were designated to satisfy, inter alia, fines that
the court found he owed to the plaintiff due to his noncompliance with
discovery requests.
28
Minimally, because the court, on December 19, 2012, found that the
defendant had not fully complied with discovery pursuant to its November
28, 2012 order, he would owe nine days of fines at the rate of $150 per day.
29
We note that in Elliott v. Elliott, supra, 14 Conn. App. 548, we reversed
the trial court’s judgment and remanded the case with direction only to
modify the judgment to include the pendente lite alimony arrearage and to
reinstate the wage execution order securing payment on the arrearage. All
other financial orders were affirmed.