CHARLES ILL v. ELLEN MANZO-ILL
(AC 42735)
Appellate Court of Connecticut
Argued May 13, 2021-officially released February 1, 2022
Prescott, Alexander and Suarez, Js.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgments of the trial court finding him in contempt and awarding the defendant attorney‘s fees. On appeal, the plaintiff claimed, inter alia, that the court improperly found him tо be in contempt, awarded the defendant attorney‘s fees, and improperly limited his defense at the contempt hearing and at the attorney‘s fees hearing. Held that the trial court abused its discretion in limiting the plaintiff‘s defense at the contempt hearing: the defendant was afforded the opportunity to establish her prima facie case over a period of four days, whereas the plaintiff was allowed, as a consequence of the court‘s scheduling order, only one day to call witnesses on his behalf, his defense was largely limited to the introduction of exhibits, and, given the lengthy postjudgment procedural history of the case related to the court‘s property distribution orders and the complexity of the issues before the court, affording the plaintiff one day to present his defense resulted in аn unfair hearing in deprivation of the plaintiff‘s due process rights; moreover, the court‘s scheduling order appeared to be arbitrary and not based on the complexity of the issues before it or on the reasonable needs of the parties to present their case, the court, over repeated objections by the plaintiff‘s counsel, having limited the plaintiff‘s case before he had an opportunity to present any evidence, indicating that the cout‘s scheduling order could not have been based on a determination that some or all of the plaintiff‘s evidence was not relevant or inadmissible on some other grounds; accordingly, the judgments on both the motion for contempt and the award of attorney‘s fees were reversed and a new contempt hearing was ordered.
Procedural History
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the the court, Shay, J., rendered judgment dissolving the marriage and granting certain other relief; thereafter, the court, Hon. Michael E. Shay, judge trial referee, granted in part the defendant‘s motion for contempt, and the plaintiff appealed to this court and the defendant filed a cross appeal; thereafter, the court, Hon. Michael E. Shay, judge trial referee, awarded the defendant attorney‘s fees and costs, and the plaintiff amended his appeal; subsequently, the defendant withdrew her cross appeal. Reversed; further proceedings.
Norman A. Roberts II, with whom, on the brief, was Anthony L. Cenatiempo, for the appellant (plaintiff).
Opinion
SUAREZ, J. In this postdissolution matter, the plaintiff, Charles Ill, appeals from the judgment of the trial court finding him in contempt and subsequently awarding interest and attorney‘s fees to the defendant, Ellen Manzo-Ill. On appeal, the plaintiff claims that the court improperly (1) found him to be in contempt, (2) ordered him to pay the defendant the value of certain shares of a private corporation, (3) awarded the defendant postjudgment interest, (4) awarded the defendant attorney‘s fees, and (5) by virtue of its scheduling order, limited his defense at the contempt hearing and the attorney‘s fees hearing. We agree with the plaintiff‘s fifth claim and reverse the judgments of the court and remand the case for a new contempt hearing.
The following undisputed facts and procedural history are relevant to this appeal. On August 19, 2008, following a trial that took place over the course of five days, the court, Shay, J., dissolved the marriage of the parties and entered orders related to alimony and the division of the parties’ marital property. These orders, which were clarified by the court on October 3, 2008, provided in relevant part that “[t]he following investment accounts, whether in sole or joint names shall be divided as follows: Within two . . . weeks from the date of this order, the parties shall divide the stocks, bonds, and cash in the Glenmede CLI account (standing in the sole name of the [plaintiff], less that portion attributed to the inherited IRA in the approximate amount of $72,000); Glenmede CLI/EMI account (joint); Wachovia Securities account ([standing in the sole name оf the plaintiff]); Avaya/Sierra Holdings ([plaintiff]/sole); Gabelli CLI/EMI account (joint); Assets Plus Investment account; and Deutsche Bank Alex Brown (joint BEA stock) on a pro-rata basis 60 [percent] to the [defendant] and 40 [percent] to the [plaintiff]. Any fractional shares shall be sold and the net proceeds divided in the same proportion.” (Emphasis omitted.) The court further ordered that “[t]he parties shall cooperate in the preparation and filing of the 2007 state and federal income tax returns. Any tax due, including interest and penalties for late filing, shall be paid from joint funds, and any refunds shall be divided equally.” (Emphasis omitted.)
Neither party was satisfied with the terms of the dissolution judgment. This led to extensive postjudgment litigation. Much of this litigation was detailed in an earlier appeal, Ill v. Manzo-Ill, 166 Conn. App. 809, 142 A.3d 1176 (2016). For example, on October 23, 2008, the plaintiff filed a direct appeal from the judgment of dissolution, which later was withdrawn on June 8, 2010. Id., 813. On September 19, 2008, the defendant filed a motion to open the judgment of dissolution, which the court denied on April 20, 2010. Id. The defendant filed a motion to reargue the court‘s denial of her motion to open the judgment, which the court denied on May 24, 2010. Id. On June 14, 2010, the defendant filed a motion for extension of time to file an appeal from the court‘s denial of her motion to the open the judgment of dissolution, but she subsequently withdrew the motion on June 24, 2010, and did not bring an appeal from the court‘s denial of that motion. Id.
On April 6, 2010, while her motion to open the judgment was pending, the defendant filed a motion for modification of alimony on the basis of a substantial change
Following a protracted course of litigation with respect to the motion for modification, on May 14, 2014, the trial court, Heller, J., granted the plaintiff‘s second motion to dismiss the motion for modification, noting that “[t]he defendant has failed to show good cause for her delay in prosecuting [the motion] . . . . Under
Against this backdrop of postdissolution litigation between the parties, we turn to the litigation underlying this appeal. On December 2, 2017, the defendant filed an amended motion for contempt requesting “that the court enter an order finding the plaintiff in contempt for his refusal to transfer assets to the defendant in violation of a court order . . . .” The defendant claimed that “[t]he plaintiff did not pay to the defendant her 60 [percent] share of the Glenmede CLI account (standing in the sole name of the plaintiff, less that portion attributed to the inherited IRA in the approximate amount of $72,000) until July 30, 2015 . . . [t]he plaintiff did not cooperate in the payment to the defendant [of] her 60 [percent] share of the Glenmede joint account and thus prevented distribution to her until July 30, 2015 . . . [t]he plaintiff did not cooperate in the payment to the defendant [of] her 60 [percent] share of the Deutsche Bank Alex Brown joint account and thus prevented distribution to her until October 20, 2015 . . . [t]he plaintiff did not cooperate in the payment to the defendant [of] her 50 [percent] share of the 2007 federal and state income tax refunds until July 30, 2015 . . . [and] [t]he plaintiff did not cooperate in the sale of the marital hоme causing the defendant a significant loss of value.”
The defendant further claimed that, “[a]s of the date of this motion, the plaintiff has failed and/or refused to transfer to the defendant the following funds/assets . . . [the] defendant‘s full 60 [percent] of the plaintiff‘s sole Wachovia accounts . . . [i]ncome generated by the defendant‘s 60 [percent] of the plaintiff‘s sole Wachovia accounts from the date of the dissolution through the entry of judgment through the date of partial distribution and the present . . . [i]ncome generated by the defendant‘s 60 [percent] of the plaintiff‘s sole Glenmede account . . . from the entry of judgment to July 30, 2015 (the date of distribution to [the] defendant) . . . [i]ncome generated by the defendant‘s 60 [percent] of the parties joint Glenmede account . . . from the entry of judgment to July 30, 2015 (the date of distribution to [the] defendаnt) . . . [i]ncome generated by the
The plaintiff argued in his written objection that “the defendant is not credible,” and addressed her claims with respect to each account or asset at issue. With regard to the Avaya/Sierra Holdings shares, the plaintiff argued that “the defendant‘s claim . . . must fail because (1) the defendant is mostly at fault for the failure of the transfer to occur . . . (2) there is no evidence of even a theoretical transaction that could have taken place, and the assertion that there was a transaction available is pure, unsupportable speculation that is contrary to all admitted evidence . . . and (3) there is no evidence of the fair market value of the shares.” (Footnotes omitted.) With regard to the Glenmede, Gabelli, and Deutsche Bank accounts, the plaintiff argued that because these accounts “were jointly held by the parties . . . [i]t was always . . . within the defendant‘s power to effectuate the judgment related to these accounts . . . .” The plaintiff went on to state that “[o]ver [eight] years ago, the plaintiff attempted to get the defendant to sign authorizations to transfer the amounts due from these accounts. He did so on multiple occasions . . . .” With regard to the Wachovia account, the plaintiff argued that he “was precluded by a court ordеr . . . from distributing the Wachovia funds earlier than he did,” that “the amount [he] paid [to the defendant] was in excess of the amount due,” and that no interest should be awarded to the defendant because she “was to a great extent responsible for the delay in implementing the orders . . . .” With regard to the sale of the marital home, the plaintiff argued that the defendant “offered no real evidence in support of this claim,” and that she failed to make a prima facie case. Finally, the plaintiff argued that “[t]he defendant was unresponsive to seemingly anything involving the implementation of the property orders in the judgment.”
The plaintiff then concluded by stating that, “[b]ecause of the defendant‘s refusal to participate in a meaningful way, the implementation of some of the property orders contained in the judgment was delayed.” According to the plaintiff, he “did everything he was supposed to do,” and “[t]he defendant‘s motions seek to retroactively place [him] in an impossible situation—on the one hand, he would have had to circumvent or otherwise compensate for the defendant‘s lack of participation . . . and implement the judgment on his own; or on the other hand, face claims of contempt and interest.” It was the plaintiff‘s position that the defendant‘s motion should be denied because he “is not at fault for any delays in implementation of the judgment, but the defendant is.”
The court held an evidentiary hearing on the defendant‘s motion for contempt over five nonconsecutive days beginning on December 14, 2017, and continuing on December 15, 2017, and August 1, 2, and 3, 2018. On March 8, 2019, the court issued a memorandum of decision in which it granted in рart the defendant‘s motion for contempt. In its memorandum of decision, the court found by clear and convincing evidence that the judgment of dissolution clearly “provided for, among other things, the division of marital property including bank accounts, investment accounts, and stock . . . as well as tax refunds and the proceeds from the sale of the marital residence.” The court found that the plaintiff failed to comply in a timely manner with the division of the Wachovia, Deutsche
On October 24, 2019, the court held a hearing on the reasonableness of the defendant‘s claimed attorney‘s fees. The hearing continued on October 29, 2019, and December 18, 2019. On February 19, 2020, the court issued a memorandum of decision in which it concluded that, “having found the [plaintiff] in contempt as to the Wachovia accounts, Deutsche Bank-Alex Brown account, Glenmede accounts, Gabelli account, and the 2007 state and federal income tax refunds, it is equitable and appropriate to award [the defendant] attorney‘s fees . . . .” The court further concluded that, although it “did not make a finding of contempt as to the [plaintiff‘s] actions concerning the transfer of the Avaya Stock, it did find him in breach of the court order . . . that it was equitable and appropriate to take into account the [plaintiff‘s] behavior and the resulting economic loss to the [defendant] . . . [and that] under all the circumstances, including the [plaintiff‘s] demonstrably dilatory behavior in complying with the court‘s orders, it would be manifestly unjust to require the [defendant] to pay all of the attorney‘s fees and costs incurred by her during the protracted litigation, and that it is equitable and appropriate to award her fees . . . .” Thereafter, the court ordered that the plaintiff “shall pay . . . the sum of $1,206,825.10, as and for the legal fees and costs of suit incurred by [the defendant] in connection with this case.”
The plaintiff filed an amended appeal from the court‘s judgment on the motion for contempt and its judgment awarding attorney‘s fees.2 Additional facts and procedural history will be set forth as necessary.
We begin our analysis by considering the plaintiff‘s claim that, by means of its scheduling order, thе court improperly limited his defense at the contempt hearing.3
Specifically, the plaintiff argues that, “[a]s a result of the trial court‘s [sсheduling] order [that limited the contempt hearing to five days], [he] was forced to condense his case into less than one day after the [defendant] tried her case over four days. The [defendant] had unfettered discretion to craft her presentation in a manner she saw fit to best support her claims. [He] was not afforded the same opportunity.” According to the plaintiff, “[g]iven the heightened evidentiary standards and rigorous due process requirements for indirect civil contempt proceedings . . . the trial court‘s limitation of the [plaintiff‘s] case constitutes reversible error.” (Citation omitted; internal quotation marks omitted.) The plaintiff also argues that the court (1) “erred in limiting [his] presentation of his defense at the contempt hearing,” (2) “erred when it prohibited [him] from cross-examining witnesses and otherwise limited [him] from presenting his case and perfecting the record,” and (3) that, “in the aggregate, the . . . court‘s procedural irregularities and rulings constitute an impermissible departure from the . . . court‘s proper role as a neutral arbiter of disputes raised by the parties.”
We next set forth the applicable standard of review and the relevant legal principles that govern our resolution of this claim. It is well settled that “[m]atters involving judicial economy, docket management [and control of] courtroom proceedings . . . are particularly within the province of a trial court. . . . Connecticut trial judges have inherent discretionary powers
In reviewing the court‘s exercise of its discretion, we are mindful that “[d]iscretion imports something more than leeway in decision-making. . . . It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . In addition, the court‘s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2001).
In order to put the court‘s ruling in the present case in necessary context, we note the nature of the contempt matter that was before the court and the burden that shifted to the plaintiff once the defendant proved her prima facie case. Mindful that the plaintiff argues that the court‘s exercise of discretion resulted in a violation of his due process right to present a defense, we also set forth some basic principles related to the due process rights of the plaintiff to his day in court. “Contempt is a disobedience to the rules and orders of a court which has powеr to punish for such an offense. . . .”
“[C]ivil 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. . . . In part because the contempt remedy is particularly harsh . . . such punishment should not rest upon implication or conjecture, [and] the language [of the court order] declaring . . . rights should be clear, or imposing burdens [should be] specific and unequivocal, so that the parties may not be misled thereby. . . .”
“To constitute contempt, it is not enough that a party has merely violated a court order; the violation must be wilful. . . . The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt. . . .”
“It is the burden of the party seeking an order of сontempt to prove, by clear and convincing evidence, both a clear and unambiguous directive to the alleged contemnor and the alleged contemnor‘s wilful noncompliance with that directive. . . . If the moving party establishes this twofold prima facie case, the burden of production shifts to the alleged contemnor to provide evidence in support of the defense of an inability to comply with the court order. . . .”
“In the absence of an admission of contempt, indirect contempt must be proven by clear and convincing evidence. . . . A judgment of contempt cannot
“[D]ue process of law . . . requires that one chаrged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses [o]n his behalf, either by way of defense or explanation.” (Citations omitted; emphasis added; internal quotation marks omitted.) Puff v. Puff, 334 Conn. 341, 364-67, 222 A.3d 493 (2020).
“A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved . . . . Generally, when the exercise of the court‘s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to presеnt evidence and to cross-examine adverse witnesses. . . . It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose rights will be affected by a court‘s decision are entitled to be heard at a meaningful time and in a meaningful manner. . . . Whe[n] a party is not afforded an opportunity to subject the factual determinations underlying the trial court‘s decision to the crucible of meaningful adversarial testing, an order cannot be sustained.” (Citations omitted; internal quotation marks omitted.) Szot v. Szot, 41 Conn. App. 238, 241-42, 674 A.2d 1384 (1996). Accordingly, a court does “not have the right to terminate [a] hearing before [the parties have] had a fair opportunity to present evidence on the contested issues.” Id., 242.
In the present case, as we will explain in greater detail, the defendant was provided an opportunity to establish her prima facie case over a period of four days. When the burden of production thereafter shifted to the plaintiff to provide evidence of an inability to comply with the court orders that were the subject of the defendant‘s motion, however, he was allowed, as a consequence of the court‘s scheduling order, only one day to call witnesses on his behalf, and his defense was largely limited to the introduction of exhibits. Given the lengthy postjudgment procedural history of this case related to the court‘s property distribution orders, and the complexity of the issues before the court, we conclude that affording the plaintiff only one day to present his defense was an abuse of the court‘s discretion that resulted in a hearing that was unfair to the plaintiff, depriving him of his due process rights.
The following facts are relevant to our analysis. The hearing on the defendant‘s motion for contempt originally was scheduled for four days. On the first day of evidence, the plaintiff‘s counsel, Norman Roberts, expressed his reservations over the time limitations given the lengthy postjudgment history of the case. He repeatedly asserted that he would not have sufficient time to present the plaintiff‘s defense to the defendant‘s allegations. As early as the morning of the first day of evidence, Roberts argued to the court that “it does appear we‘re going to need more dates . . . I didn‘t think that we would be halfway through the first day and be where we are.” Later during the first day of evidence, Roberts renewed his concern that “[w]e‘re going to need more time,” and again expressed his apprehensions that a hearing lasting only four days was not
At the end of the second day of evidence, Roberts again argued that the plaintiff would not be able to have a meaningful hearing without additional time: “[G]iven that we‘re two days in and we‘re still on . . . witness number one, can we get extra dates . . . because we‘re nоt going to finish. . . . I mean, there‘s just no possible way we‘re going to finish this.” The court reassured the parties that they would be afforded “plenty of time . . . .”
Like Roberts, the court also expressed its concerns with the pace of the defendant‘s case-in-chief. On the second day of evidence, the court admonished the defendant‘s counsel on her prosecution of the motion. It stated: “[A]nd now we‘ve got a problem. All right. On something that should have taken a very short time, probably thirty minutes on one side, thirty on another, if that, and done. And now we‘re doing it here, it‘s 10:30 in the morning, we haven‘t called our first witness, we‘re in the middle of a witness.” Once again, on the morning of the last scheduled day, the court began by expressing its expectation that the defendant would finish her case-in-chief that day, despite noting that “this is our fourth day,” as well as that “[w]e have just а limited number of days assigned.” The court conveyed its frustration by noting: “[O]ne of the things that I‘ve experienced in this job for almost nineteen years now, is that oftentimes one party basically sucks all the oxygen out of the case. And there is no time for the opposing counsel to defend their client . . . . One of the functions that a trial judge has is to take charge of the case, balance the interest of the parties, and get the case done as expeditiously as possible. So we plowed the same row for a while yesterday. And that just can‘t happen. So, we need to be more economical with our presentations, and focus on what is really important. And then we‘ll have this case, basically, wrapped up tomorrow.” The court further stated: “I just want people to understand that this is a system that is under extreme stress. And I expect counsel to focus on what is important, and what is relevant, and what is going to get us from point A to point B. Particularly the judge—you know—educating me in terms of the facts.”
At the conclusion of the fourth day, after the defendant rested her case-in-chief, the court allowed for an additional day in which the plaintiff could present his defense. The court, however, preemptively placed restrictions on the plaintiff‘s ability to present his case. Specifically, after Roberts stated that he intended to call four witnesses in presenting the plaintiff‘s defense, the court responded by saying: “So, I think that—you know—a lean, spare examination, so that we‘re not plowing that same old furrow again there. You know—just let‘s—you know—you‘ve got tonight to think about it. You know—sit down with [co-counsel], and just figure out what is important to you.” Roberts expressed his frustration with the court‘s decision to limit the plaintiff‘s case-in-chief to one day, arguing that “I don‘t see the possibility of closing evidence tomorrow. I really, really don‘t.” The court admonished the plaintiff‘s counsel by saying: “This case has gone on way too long. A ten year old case is—you know—it‘s reached its shelf life, folks. It‘s expired. All right? So, for everybody‘s sake—for the system—the least of our worries, but the system, and for these
Alternatively, in light of the plaintiff‘s objections to the truncated scheduling оrder, the court threatened to declare a mistrial. Specifically, the court said: “So, one of the options that I have is—and I—I could—I‘ve probably done it twice in my career, is to [mistry this proceeding], because this is not going to go—I am not carrying this case over to October.” Thereafter, in compliance with the court‘s scheduling order, the plaintiff limited the presentation of his defense by introducing exhibits and limiting the testimony of witnesses to one day.4
In his appellate brief, the plaintiff asserts that he was prejudiced by the restrictions that the court placed on him because he “was required to submit numerous documents as exhibits without the benefit of testimony to explain and illuminate the salient portions . . . [and] to limit the number of his witnesses, and limit their testimony.” Furthermore, the plaintiff‘s counsel asserted at oral argument before this court that the plaintiff was prejudiced by the restrictions placed on his defense because he was forced to reformulate his entire presentation in order to attempt to get all of his exhibits admitted into evidence, he was forced to focus on putting documents into evidence to support his trial brief instead of using witnesses to explain or to give context to the evidence for the benefit of the court, and because his ability to call and to examine witnesses was severely circumscribed.
The court‘s scheduling order does not appear to have been based on the complexity of the issues before the court in ruling on the defendant‘s motion or the reasonable needs of the parties to present their case. Indeed, the record reflects that, over the rеpeated objections of the plaintiff‘s counsel, the court limited the plaintiff‘s case-in-chief before he even had an opportunity to present any evidence. Thus, the court‘s scheduling order could not have been based on a determination that some or all of the plaintiff‘s evidence was not relevant or that it was inadmissible on some other ground, such as its being cumulative in nature or likely to waste time. See, e.g.,
Although the court appears to have been frustrated with the pace of the defendant‘s presentation of her case, it did not use the tools at its disposal to confine hеr case-in-chief to relevant matters and to prevent her from presenting what it believed to be cumulative evidence. Instead, in an effort to bring the hearing to a conclusion, it truncated the plaintiff‘s presentation of his defense. The court‘s dissatisfaction
We are persuaded that the court effectively terminated the hearing at the end of the fifth day and “before the plaintiff had a fair opportunity to present evidence on the contested issues.” Szot v. Szot, supra, 41 Conn. App. 242. Although the court did allоw for the parties to file briefs after the conclusion of the hearing, it is worth noting that the court also expressed its dissatisfaction with lengthy briefs, stating early in the proceedings that “[a] blizzard of paper is not going to be helpful.” Moreover, allowing for the filing of a posthearing brief is not a substitute for an effective presentation of evidence, during which the court is able to assess the credibility of witnesses, particularly in a case involving numerous and complex issues that occurred over several years, and when the opposing party was nearly unfettered in her ability to present her case.
All of these factors, considered together, make clear that the court‘s scheduling order reflected an abuse of its discretion, the plaintiff was not afforded a fair opportunity to present evidence on the contested issues, and the hearing was fundamentally unfair. Therefore, it is reasonable to conclude, as the plaintiff argues, that he was hampered in his ability to present testimony and to refute the defendant‘s evidence generally. The record is abundantly clear that the plaintiff‘s counsel went to great lengths to express his concern to the court that, as a result of its arbitrary decision to limit his presentation of evidence, the plaintiff would not have sufficient time to adequately present his defense and explain to the court why he could not comply with its orders. Under these facts and circumstances, the proper remedy is to reverse the judgments of the trial court and remand the case for a new hearing.
The judgments are reversed and the case is remanded for a new hearing.
In this opinion the other judges concurred.