SUSAN CUNNIFFE v. MARK CHARLES CUNNIFFE
(AC 34940)
Appellate Court of Connecticut
May 27, 2014
Beach, Sheldon and Keller, Js.
Argued November 15, 2013—officially released May 27, 2014
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(Appeal from Superior Court, judicial district of Stamford-Norwalk, Emons, J. [motion for contempt; motion
David V. DeRosa, with whom was Paul Greenan, for the appellant (plaintiff).
Karen L. Dowd, with whom were Brendon P. Levesque and, on the brief, Melissa J. Needle, for the appellee (defendant).
Opinion
KELLER, J. In this amended appeal, the plaintiff, Susan Cunniffe, appeals following the judgment of the trial court dissolving her marriage to the defendant, Mark Charles Cunniffe.1 The plaintiff claims that the court improperly (1) allowed dissolution proceedings to advance in violation of an appellate stay, (2) failed to hold the defendant in contempt for violating a discovery order, and (3) granted a motion for a protective order that prevented the plaintiff from obtaining copies of relevant financial records. We disagree and affirm the judgment of the trial court.
The following facts, which either were found by the court or are undisputed in the record, and procedural history are germane to our resolution of the plaintiff’s claims. The plaintiff and the defendant married in 2002. During the marriage, the plaintiff was employed in a variety of positions with small investment management firms, earning as much as $70,000 annually. The defendant was employed in companies owned by his father, Maurice Cunniffe, who has significant personal wealth and real estate holdings. The defendant’s reported annual earnings during the marriage never exceeded $25,000.
In October, 2009, the plaintiff commenced this action to dissolve the parties’
In October, 2010, the plaintiff filed a motion to compel discovery in which she asked the court to order the defendant to sign an Internal Revenue Service form 4506 release (IRS releases) for ‘‘each and every entity in which the defendant holds a financial interest,’’ thereby authorizing the IRS to release tax returns for those entities directly to the plaintiff. The plaintiff argued in her motion that she needed the tax returns because the defendant allegedly had failed to disclose fully all of his financial interests with respect to a number of trusts created by the defendant’s mother, Jane M. Cunniffe, prior to her death in 2008. In addition to seeking the IRS releases for six trusts specifically identified in the motion to compel, the plaintiff also sought releases covering the federal and state tax returns of the mother’s estate.
The plaintiff’s motion to compel was heard by the court, Malone, J., on November 8, 2010, along with the plaintiff’s motion for an award of pendente lite alimony.3 With respect to the motion to compel, the court indicated on the record that it was uncertain whether the defendant was authorized to sign all of the IRS releases sought by the plaintiff. Without deciding that particular issue, the court instructed the plaintiff to obtain whatever IRS releases that she believed were appropriate for the defendant’s signature and to provide those forms to the defendant’s counsel; counsel was instructed ‘‘to provide them to [the defendant] for signing.’’4
On February 2, 2012, the plaintiff filed a motion for contempt, in which she argued that the defendant’s counsel and/or the defendant had refused to comply with the court’s November 8, 2010 orders with respect to the IRS releases. On May 7, 2012, the parties appeared before the
The plaintiff did not object to the court continuing the motion for contempt to the following week, but indicated that the defendant’s attendance would be necessary for the court properly to make a finding of wilfulness. The court decided that although it was necessary to resolve the continuing dispute over the production of the IRS releases prior to trial, the contempt aspect of the motion—namely, whether the defendant was in wilful violation of an existing court order—could be bifurcated from the discovery dispute. It ordered that it would take up the discovery aspect of the motion when it heard the parties’ other outstanding discovery issues at the May 17, 2012 hearing, but that the contempt issue could be heard later as part of the upcoming dissolution trial. The plaintiff filed an appeal, AC 34588, on May 16, 2012, challenging the court’s ruling continuing to a later date its consideration of the motion for contempt.
On May 17, 2012, the parties appeared as scheduled before Judge Emons, who heard arguments from the parties on a multitude of discovery related motions. At the beginning of that hearing, the plaintiff notified the court that she had filed an appeal from what the plaintiff characterized as the court’s refusal to hear her motion for contempt. The court observed that it had not denied the plaintiff the ability to present her motion, but, rather, had only postponed a final hearing as to the contempt issue until trial. When the plaintiff suggested that the current hearing regarding discovery matters could not go forward because an appellate stay of execution was in effect, the court stated that it was lifting any such stay.
The discovery motions included several motions for a protective order filed by third party witnesses, including the defendant’s father and brother.6 The defendant’s father and brother sought protective orders limiting their obligations to produce personal financial documents that the plaintiff had subpoenaed for production at their depositions, including copies of the disputed family trusts. The parties also
Judge Emons conducted an in camera review of the disputed documents, which were provided to her by the parties and by the third party witnesses.8 At a subsequent hearing on June 28, 2012, the court identified on the record the documents that it had reviewed, ultimately ruling on the basis of that review that it had not found anything pointing to the existence of a divisible asset for the purposes of marital dissolution. The court stated: ‘‘My order is that I am not going to order any IRS authorizations for any of these documents, and I am not going to order that [the plaintiff] be given a copy of any of those documents. I’ll state it again that you have in your possession copies of four of those documents—unsigned on a couple of occasions.
‘‘The reason for my ruling is that . . . I have had the opportunity to carefully review all of the documents and that even though [the defendant’s] name appears in some of those documents, it appears to this court that he does not have a present interest in anything from any of these documents. All of his interests, if they become real at all, are purely speculative, totally contingent. It is clear that he does not have a present interest in anything with any of these documents. So that is my ruling.’’ On July 2, 2012, the plaintiff filed her second amended appeal in AC
The dissolution trial commenced on July 23, 2012, before the court, Adelman, J. The court began by addressing a few preliminary matters. First, it addressed a notice of automatic stay filed by the plaintiff on July 17, 2012. The plaintiff argued that the dissolution trial could not go forward because automatic stays of execution had arisen as a result of the filing of her appeal and the two amended appeals, and that although Judge Emons had ordered the lifting of any stay that might be in effect, a motion for review of that order remained pending before the Appellate Court. The defendant argued that because the plaintiff had not appealed from a final judgment, no stay had ever come into effect, and that the plaintiff simply was trying to delay the trial. The defendant also argued that even if there was a stay, it was only a stay of proceedings to carry out the orders from which the plaintiff had appealed, not a stay of all dissolution proceedings, as the plaintiff appeared to be suggesting. The court ruled on the basis of its review of all relevant transcripts, motions and our rules of practice that there was no stay in place and that the matter could go forward.
The court next indicated that it was ready to proceed on the plaintiff’s February 2, 2012 motion for contempt. Both the plaintiff and the defendant provided testimony. The plaintiff’s position was that Judge Malone had ordered the defendant to sign all IRS releases provided to him with respect to the various trusts and that, as a beneficiary of those trusts, the defendant was authorized to sign the releases, but failed to do so as ordered. The defendant’s position was that Judge Malone had issued his ruling without looking at the IRS release form, that in signing the IRS release form the defendant had to certify, under penalty of perjury, that he was a party authorized to obtain the relevant tax returns, and that, accordingly, he only had signed the one IRS release he believed he was authorized to sign.9 The following day, the court issued an oral decision, denying the motion for contempt and sustaining the objection of the defendant. Although the court found that the plaintiff had proven that the defendant had not signed all of the IRS releases provided to him, it also found that the original order to sign the releases was not clear and unambiguous, and that ‘‘[t]here certainly exists a sufficient conflict between the perjury warning on the IRS authorization form, and the language offered by the plaintiff in
On July 25, 2012, this court granted a motion filed by the defendant to dismiss AC 34588 as amended for lack of a final judgment and, accordingly, ordered that no action was necessary on the plaintiff’s motion for review of Judge Emons’ order lifting any appellate stay that may have been in effect. The plaintiff filed a new appeal on August 13, 2012, challenging the court’s July 24, 2012 denial of her motion for contempt. See footnote 1 of this opinion. The court issued a memorandum of decision on August 31, 2012, in which it rendered a final judgment dissolving the parties’ marriage. This amended appeal from the judgment of dissolution followed.
The plaintiff first claims that Judge Emons and Judge Adelman improperly exercised jurisdiction by allowing dissolution proceedings to advance forward in violation of an appellate stay. The defendant counters that the court could not have acted in violation of an appellate stay because no valid appellate stay was ever in effect, and, even if an appellate stay was in effect, it would not have stayed further proceedings before the court. We agree with the defendant.
Whether an appellate stay of execution was in effect during the underlying dissolution proceedings requires us to consider our rules of practice and case law concerning appellate stays. ‘‘The interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation. . . . The interpretation and application of a statute, and thus a Practice Book provision, involves a question of law over which our review is plenary.’’ (Citations omitted; internal quotation marks omitted.) Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010).
Except in certain limited circumstances not relevant to our analysis,10 a valid final judgment is required to invoke this court’s jurisdiction. See
All the appeals and amended appeals relevant to the plaintiff’s claim that the trial court acted in violation of an appellate stay were taken from interlocutory orders of the court. ‘‘[C]ertain otherwise interlocutory orders may be final judgments for appeal purposes, and the courts may deem interlocutory orders or rulings to have the attributes of a final judgment if they fit within either of the two prongs of the test set forth in State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983)]. . . . Under Curcio, interlocutory orders are immediately appealable if the order or ruling (1) terminates a separate and distinct proceeding, or (2) so concludes the rights of the parties that further proceedings cannot affect them.’’ (Citations omitted; internal quotation marks omitted.) State v. Fielding, 296 Conn. 26, 37–38, 994 A.2d 96 (2010). ‘‘The first prong of the Curcio test . . . requires that the order being appealed from be severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding.’’ (Internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474, 496, 857 A.2d 893 (2004), cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed 2d 723 (2005). Satisfaction of the second prong of the Curcio test ‘‘requires the parties seeking to appeal to establish that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal. . . . An essential predicate to the applicability of this prong is the identification of jeopardy to [either] a statutory or constitutional right that the interlocutory appeal seeks to vindicate.’’ (Citation omitted; internal quotation marks omitted.) Id., 497.
AC 34588 was taken from Judge Emons’ May 7, 2012 order postponing to a later date the consideration of the motion for contempt, which alleged a failure to comply with discovery orders. The court’s May 7, 2012 order, which was issued on the basis of a pleading filed in the context of an ongoing dissolution action, certainly did not terminate a separate and distinct proceeding so as to satisfy the first prong of Curcio. The order also did not conclude any presently held statutory or constitutional rights of the parties vis-a-vis the motion for contempt. The court clearly indicated its intent to adjudicate that motion at a later date, thus signaling that further proceedings with the potential to affect any rights of the parties would be necessary. The May 7, 2012 order also is readily distinguishable from the situation before the court in Ahneman v. Ahneman, 243 Conn. 471, 706 A.2d 960 (1998), a case relied on by the plaintiff.
In Ahneman, our Supreme Court determined that a court’s outright refusal to consider a party’s postdissolution motion for contempt was the functional equivalent of a denial of that motion and, thus, immediately appealable. Id., 480. The court in the present case, however, did not refuse to rule on the motion altogether. Rather, it chose to put off consideration of the motion to a later time—a decision that was well within the court’s discretion to make. See Marshall v. Marshall, 71 Conn. App. 565, 575, 803 A.2d 919 (‘‘matters of judicial economy, docket management and control of courtroom proceedings are particularly within the province of a trial court’’), cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). ‘‘Because a matter by definition cannot be simultaneously continued and concluded, it is dubious that a continuance would constitute a final judgment.’’ Harvey v. Wilcox, 67 Conn. App. 1, 6, 786 A.2d 533 (2001).
Further, our consideration of the nature of the motion for contempt at issue in AC 34588 also aides us in distinguishing that appeal from the appeal before the court in Ahneman. In Ahneman, the defendant wife sought to hold the plaintiff husband in contempt over financial issues. Ahneman v. Ahneman, supra, 243 Conn. 474–75. Our Supreme Court noted that financial rulings in divorce proceedings often are immediately appealable whether made pendente lite, as part of the judgment of dissolution, or postjudgment. Id., 479. By contrast, the motion for contempt at issue in AC 34588 involved a discovery order. It is well established in our case law that interlocutory rulings on motions related to discovery generally are not immediately appealable. See Presidential Capital Corp. v. Reale, 240 Conn. 623, 628, 692 A.2d 794 (1997); Melia v. Hartford Fire Ins. Co., supra, 202 Conn. 255; Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980). This is because such interlocutory rulings ordinarily do not terminate separate and distinct proceedings, and any discovery abuses or errors can be remedied, if necessary, by ordering a new trial following an appeal by the aggrieved party from a final judgment. In sum, the original appeal in AC 34588 was not taken from an appealable final judgment and therefore resulted in no appellate stay.
The plaintiff later filed amended appeals in AC 34588 that challenged additional interlocutory orders concerning discovery, including the court’s June 28, 2012 decision not to order the production of the documents reviewed in camera. See footnote 7 of this opinion. Those discovery orders also were not immediately appealable under the Curcio test pursuant to the rationale set forth regarding the original appeal in AC 34588. Accordingly, the filing of the amended appeals in AC 34588 does not change our analysis of whether an appellate stay of execution existed that would have limited the court’s jurisdiction.
Finally, during the pendency of the dissolution trial, the plaintiff filed her initial interlocutory appeal from the court’s denial of her motion for contempt. See footnote 1 of this opinion. Again, because the motion for contempt was filed as a pleading in an ongoing dissolution action and the merits of the motion related to discovery in that ongoing matter, the court’s action on the motion was not severable from the central cause of action, nor did it terminate a separate and distinct proceeding. Accordingly, that interlocutory ruling failed to satisfy the first prong of the Curcio test.
Here, once a judgment of dissolution was rendered, the plaintiff would have had an opportunity to challenge the trial court’s ruling that the defendant was not in contempt. See, e.g., Quasius v. Quasius, 87 Conn. App. 206, 866 A.2d 606 (whether party in dissolution action violated automatic orders reviewed on appeal after judgment of dissolution rendered), cert. denied, 274 Conn. 901, 876 A.2d 12 (2005). The plaintiff, in fact, has done so in the present amended appeal. Thus, the court’s denial of the motion for contempt did not threaten the preservation of any cognizable right that would be irretrievably lost absent an immediate appeal, and, therefore, does not satisfy the second
The plaintiff next claims that the court improperly denied her motion for contempt in which she alleged that the defendant had violated Judge Malone’s November 8, 2010 order by failing to sign all IRS releases provided to the defendant’s counsel by the plaintiff. In particular, the plaintiff argues that the court erroneously found that the November 8, 2010 order was ambiguous and that the defendant had not acted in wilful violation of the order. We are not persuaded that Judge Malone’s order was clear and unambiguous, and, therefore, conclude on that basis that the court properly declined to hold the defendant in contempt.
‘‘Guided by the principles that limit our review, our analysis of a 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 discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.’’ (Citations omitted; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 693–94, 935 A.2d 1021 (2007).
‘‘Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts. . . . Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt because [t]he contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind. . . . It is also logically sound that 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 compliance with the order.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 695
The plaintiff argues that the court’s November 8, 2010 ruling can only be read as requiring the defendant to sign every IRS release provided to him and as having left it to the IRS to determine if he properly was authorized to request a given tax return. The defendant, on the other hand, argues that the court only intended that he sign releases for those tax returns that he was authorized to receive. On the basis of our de novo review of the November 8, 2010 transcript, we conclude that Judge Malone’s instructions to the parties did not amount to a clear and unambiguous order of the court and, thus, could not be the basis for a finding of contempt.
The relevant motion before the court at the November 8, 2010 hearing was the plaintiff’s motion to compel. The relief requested was a court order requiring the defendant to sign IRS releases for each
The court never granted the motion to compel outright, which it could have done if it had intended to order the defendant simply to sign all the releases. It also did not use specific and direct language ordering the defendant to sign each and every one of the IRS releases that was provided to him. The court’s order reasonably could be read as merely reassuring the plaintiff that the defendant’s counsel would present any releases provided to her by the plaintiff to the defendant. Because we have determined on the basis of our plenary review that, when read in the context of the full hearing, the court’s oral ruling is ambiguous as to whether the defendant was obliged to sign all releases provided by the plaintiff or only those which he was authorized by law to sign, we conclude that the court did not err in denying the motion for contempt.
III
Finally, the plaintiff claims that, following the Judge Emons’ in camera review, she improperly granted a protective order in favor of the defendant and his father regarding their need to disclose certain trust documents or to sign IRS releases for related tax returns. On the basis of our own review of those documents viewed by the court in camera, we are not convinced that the court’s decision was in error.
The plaintiff first argues that, procedurally, it was improper for the trial court to have conducted an in camera review of the disputed documents, all of which she claims were not privileged and thus discoverable. The plaintiff did not make that argument before the court prior to learning of the outcome of the in camera review. In fact, the plaintiff agreed with the court’s decision to review the documents in camera. We therefore decline to review in this appeal any claim of error related to the procedure employed by the court, in which the plaintiff acquiesced. ‘‘The court shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial. . . . The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court . . . to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Nweeia v. Nweeia, 142 Conn. App. 613, 618, 64 A.3d 1251 (2013). Accordingly, we limit our review to the plaintiff’s argument that the court improperly decided not to order the release of the documents examined by the court in camera as part of discovery or to require the defendant to sign additional IRS releases.
Having reviewed the sealed documents contained in the court file, we conclude that the court did not abuse its discretion by declining to order the defendant and the third parties to produce copies of the various disputed trust documents to the plaintiff or to execute related IRS releases. We agree with the court’s finding that nothing in those documents suggests the existence of any divisible marital
The original appeal is dismissed for lack of a final judgment; the judgment in the amended appeal is affirmed.
In this opinion the other judges concurred.