Welsh v. MartinezWelsh v. Martinez
***********************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
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.
***********************************************
D’ANNA WELSH v. WILLIAM V. MARTINEZ
(AC 41115)
Lavine, Prescott and Elgo, Js.
Syllabus
The defendant, W, appeals from the judgment of the trial court holding him in contempt for violating the terms of an asset standstill order. The plaintiff had brought an action against W seeking to recover damages for, inter alia, tortious invasion of privacy. The matter was tried to a jury, which returned a verdict in favor of the plaintiff in the amount of $2 million, and the court awarded punitive damages in the amount of $360,000. Thereafter, the court ordered that W was enjoined from voluntarily transferring or encumbering any assets except business assets in the ordinary course of business and personal assets for ordinary living expenses, including court-ordered alimony and child support, and also granted the plaintiff’s application for a prejudgment remedy. The plaintiff subsequently filed a motion for contempt alleging that W transferred more than $2 million to his then-wife, C, by depositing all of his wages directly into her bank account for the purpose of defeating the asset standstill order. The trial court granted the motion for contempt and imposed a compensatory fine of $2.2 million payable to the plaintiff in the amount of $25,000 per month. From the judgment rendered thereon, W appealed to this court. Held:
1. W’s claim that the trial court improperly found him in contempt because the asset standstill order lacked sufficient clarity and was ambiguous was unavailing: the plain language of the order prohibited W from depositing the entirety of his income to C’s bank account over several years, after his own bank account into which his wages previously were deposited was frozen, for the purpose of shielding those assets from the reach of a judgment creditor, the asset standstill order provided sufficient notice to a reasonable person that the wholesale transfer of wages to the account of a third party was not permitted, and evidence in the record supported the court’s determination that W wilfully had violated the order, including evidence that C’s bank account was opened for the express purpose of placing the entirety of W’s wages outside the reach of a judgment creditor; accordingly, the trial court did not abuse its discretion in holding W in contempt.
2. W could not prevail in his claim that the trial court failed to consider his ability to pay in imposing a compensatory fine: that court found that W had sufficient income and other assets that rendered him financially able to pay the monthly amount ordered, and that finding was substantiated by evidence in the record, which included W’s testimony that he earned a gross annual income of $1.2 million and that he had no other long-term debt aside from monthly mortgage payments and certain divorce related obligations, and statements from individual retirement accounts held by W were admitted into evidence as full exhibits, and, therefore, the court reasonably could have concluded that W had not proven a financial incapacity to comply with its fine, and its finding that W possessed sufficient income and other assets to pay that fine was not clearly erroneous.
3. Although the trial court properly concluded that the plaintiff was harmed by W’s contemptuous conduct, the court abused its discretion in imposing a compensatory fine without the necessary factual basis: even though the court properly found that the principal loss sustained by the plaintiff was the inability to employ statutory collection procedures against W, including the remedy of attachment as to the $2,220,400.67 in wages that W deposited into C’s bank account, compensatory fines must be confined to actual losses sustained as a result of noncompliance with a court order, the ability to attach an asset is distinct from the ability to execute on an attachment to satisfy an outstanding judgment, and the court failed to furnish an adequate factual basis to support its determination that the plaintiff had proven $2.2 million in actual pecuniary losses, as an attachment merely provides security for a judgment creditor, who may execute on the attachment depending on a number of
factors, including the extent to which the judgment has been satisfied and the existence of other attachments on the assets of the judgment debtor, the court made no findings, apart from finding that the plaintiff’s ability to attach such assets was impaired, to provide the requisite factual basis for its compensatory fine and, in the absence of such findings, could not ensure that the fine was confined to actual losses sustained; accordingly, the case was remanded to the trial court for a new hearing limited solely to the issue of damages to determine the measure of loss that occurred as a result of W’s contemptuous conduct in violation of the court’s order.
Argued February 4—officially released August 20, 2019
Procedural History
Action to recover damages for, inter alia, the defendant’s alleged invasion of privacy, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Robaina, J.; verdict and judgment for the plaintiff, from which the defendant appealed to this court, which affirmed the judgment; thereafter, the plaintiff filed a motion to prevent fraudulent transfer of property; subsequently, the court, Graham, J., entered an order enjoining the defendant from transferring certain assets; thereafter, the court, Robaina, J., granted the plaintiff’s application for a prejudgment remedy; subsequently, the court, Moll, J., granted the plaintiff’s motion for contempt and rendered judgment thereon, from which the defendant appealed to this court; thereafter, the court, Moll, J., denied the defendant’s motion for articulation; subsequently, the defendant filed a motion for review with this court, which granted the defendant’s motion for review but denied the relief requested. Reversed in part; further proceedings.
Irve J. Goldman, with whom, on the brief, was Timothy G. Ronan, for the appellee (plaintiff).
Opinion
ELGO, J. The defendant, William V. Martinez, Jr.,1 appeals from the judgment of the trial court holding him in contempt for violating the terms of an asset standstill order. On appeal, the defendant claims that the court improperly (1) found him in contempt because that order lacked sufficient clarity and was ambiguous, (2) failed to consider the defendant’s ability to pay in imposing a compensatory fine, and (3) abused its discretion in imposing that fine. We affirm in part and reverse in part the judgment of the trial court.
In 2010, the plaintiff, D’Anna Welsh, commenced a civil action (underlying action) against the defendant, in which she alleged tortious invasion of privacy, negligence per se, intentional infliction of emotional distress, and negligent misrepresentation. At trial, the jury was presented with ‘‘undisputed evidence’’ that the defendant ‘‘conducted extensive covert surveillance of the plaintiff over the course of several years. That surveillance included intimate video transmissions from her bedroom and shower, daily reports as to every notation made on her computer, and GPS monitoring of her vehicle. The jury also had before it evidence that although the defendant swore under oath before the [Superior Court] at [an] accelerated rehabilitation hearing . . . that the plaintiff ‘had
After the jury returned a verdict in her favor, the plaintiff filed a motion with the trial court seeking punitive damages in the amount of her attorney’s fees. The trial court, Robaina, J., granted that motion over the defendant’s objection and awarded ‘‘the sum of $360,000 as punitive damages in favor of the plaintiff.’’3 As a result, the plaintiff had an outstanding judgment against the defendant in the amount of $2,360,000 as of December, 2012.4
On the same day that the jury delivered its verdict, the plaintiff filed two pleadings relevant to this appeal.
The first was an application for a prejudgment remedy.5 In the second, which was titled ‘‘Plaintiff’s Motion to Prevent Defendant’s Fraudulent Transfer of Property,’’ the plaintiff alleged that she had ‘‘a reasonable belief that [the] defendant will attempt to fraudulently transfer property in violation of [
On July 9, 2012, the court, Graham, J., held a hearing on the latter motion. At its conclusion, the court entered an order that stated: ‘‘The [defendant] is enjoined from voluntarily transferring or encumbering any assets except business assets in the ordinary course of business and personal assets for ordinary living expenses, including court-ordered alimony and child support’’ (asset standstill order).6
Weeks later, on July 31, 2012, Judge Robaina granted the plaintiff’s application for a prejudgment remedy. In so doing, the court ordered: ‘‘[The] plaintiff is allowed to attach up to $2 million of the defendant’s property and [the] defendant is to provide a disclosure of assets by
On May 2, 2017, the plaintiff filed a postjudgment motion for contempt and an accompanying memorandum of law. In that motion, the plaintiff alleged that the defendant voluntarily had transferred more than $2 million to Cristina Martinez (Cristina) ‘‘by depositing his monies directly into her bank account for no valid purpose but for the purpose of defeating [the] asset standstill order.’’ The plaintiff also alleged that the defendant had ‘‘concealed and refused to disclose his personal property, financial bank and trading accounts, and debts due and owing to him’’ in violation of the asset disclosure order. The defendant filed an objection to the plaintiff’s motion, to which the plaintiff filed a reply.
The court, Moll, J., held an evidentiary hearing on the plaintiff’s motion for contempt on August 2, 2017. The plaintiff called three witnesses: David Baker, the vice president of corporate security at Farmington Bank; Jamie Cook, the custodian of records at People’s United Bank; and the defendant.8 At that hearing, the court received undisputed documentary and testimonial evidence indicating that, at the time that the verdict was rendered in the underlying action in 2012, the defendant was the sole holder of an account with Farmington Bank, into which he regularly deposited his wages. When that account became frozen in October, 2012, as a result of collection actions undertaken by the plaintiff, the defendant began depositing his wages in their entirety into an account with People’s United Bank held solely by his then-wife, Cristina.9 By his own admission,
the defendant made those deposits in a deliberate attempt to avoid the freezing of those funds. The court found, and the defendant does not dispute, that he deposited $2,220,400.67 into Cristina’s account between October, 2012, and March, 2016.
In his testimony, the defendant confirmed that, at all relevant times, he was employed as a heart surgeon. His gross annual income at the time of the contempt hearing was $1.2 million; after taxes, the defendant earned approximately $700,000. With respect to his liabilities, the defendant testified that he made monthly mortgage payments of $7500 and monthly payments of $14,000 for his ‘‘divorce-related obligations.’’ Beyond that, the defendant acknowledged that he had no other long-term debt. The defendant further testified that, after depositing his wages into
In its memorandum of decision, the court concluded that the defendant’s failure to disclose certain assets—namely, a retirement account, a $50,000 promissory note, three motor vehicles and a gun collection—did not constitute a wilful violation of the asset disclosure order. At the same time, the court found that the defendant’s conduct in ‘‘depositing the entirety of his wages into Cristina’s People’s United Bank account for the period October 30, 2012 through March 24, 2016, constitutes a series of wilful violations of the asset standstill order. Because the entirety of his income was deposited to an account held in the name of Cristina alone, he is deemed to have ‘voluntarily transferr[ed] or encumber[ed]’ his income (i.e., a personal asset) beyond what was necessary ‘for ordinary living expenses, including court-ordered alimony and child support.’ [The defendant] engaged in such conduct knowingly, with full knowledge of the asset standstill order, and for the express purpose of placing the entirety of such funds outside the reach of the plaintiff (i.e., with the intention of depriving the plaintiff of significant statutory postjudgment procedures authorized by chapter 906 of the General Statutes). The court therefore finds [the defendant] in civil contempt.’’ (Emphasis in original.) The court thus imposed a ‘‘compensatory fine’’ of $2.2 million ‘‘payable directly to [the plaintiff] in an amount of $25,000 per month, until such fine is paid in full,’’ which amount the court found represented ‘‘the plaintiff’s proven, actual losses as a result of [the defendant’s] wilful violations of the asset standstill order.’’ From that judgment, the defendant appealed to this court.
The defendant subsequently filed a motion to stay enforcement of the $2.2 million compensatory fine pending resolution of the present appeal. In denying that request, the court clarified that the compensatory fine was not intended to supplement the $2,360,000 award that the plaintiff had received in the underlying
action. Rather, the court explained that ‘‘[a]ny payment [the defendant] makes to the plaintiff in compliance with the contempt order serves to offset the amount of the judgment due.’’
I
The defendant contends that the court abused its discretion in holding him in contempt because the asset standstill order lacked sufficient clarity and was ambiguous. We disagree.
Before addressing the merits of the defendant’s claim, we set forth certain general principles that govern our review. ‘‘[O]ur analysis of a [civil] judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal
‘‘As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of an [order or] judgment may involve the circumstances surrounding [its] making . . . . Effect must be given to that which is clearly implied as well as to that which is expressed.’’ (Internal quotation marks omitted.) State v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010). Furthermore, it is a fundamental tenet of construction that the question of ambiguity is resolved by considering the language in question as applied to the particular facts of the case. See, e.g., Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc., 327 Conn. 467, 473, 174 A.3d 791 (2018) (concluding that statute in question ‘‘is ambiguous as applied to the facts of the present case’’); State v. Crespo, 317 Conn. 1, 10 n.10, 115 A.3d 447 (2015) (‘‘[a] statute may be clear and unambiguous as applied in one context but not in another’’); Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, 42, 84 A.3d 1167 (2014) (language in contract must be construed in circumstances of particular case and cannot be found ambiguous in abstract).
With those principles in mind, we begin by noting the context in which the asset standstill order arose. Weeks prior to its issuance, a jury returned a $2 million
verdict against the defendant. Immediately thereafter, the plaintiff filed a ‘‘Motion to Prevent the Defendant’s Fraudulent Transfer of Property,’’ in which she averred in relevant part that she had ‘‘a reasonable belief that [the] defendant will attempt to fraudulently transfer property . . . .’’ Following a hearing, the court issued the asset standstill order, stating in relevant part that the defendant ‘‘is enjoined from voluntarily transferring or encumbering any assets except . . . personal assets for ordinary living expenses, including court-ordered alimony and child support.’’
The plaintiff concedes that the defendant initially complied therewith, as his wages were deposited into his Farmington Bank account in the months subsequent to the issuance of the asset standstill order.11 When that bank account was frozen in October, 2012, the defendant began depositing all of his wages into the People’s United Bank account held solely by Cristina in an effort to shield them from a judgment creditor.12 That undisputed fact
In its memorandum of decision, the court acknowledged that the asset standstill order permitted the defendant to utilize his personal assets to make payments on ordinary living expenses and to satisfy family court judgments. The court nevertheless held that the plain language of that order prohibited the defendant from depositing the entirety of his income to Cristina’s bank account over the course of several years. We agree.
As our Supreme Court has explained, ‘‘[c]ivil 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. . . . One cannot be placed in contempt for failure to read the court’s mind. . . . [A] person must not be found in contempt of a court order when ambiguity either renders compliance with the order impossible, because it is not clear enough to put a reasonable person on notice of what is required for compliance, or makes the order susceptible to a court’s arbitrary interpretation of whether a party is in compliance with the order.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Leah S., supra, 284 Conn. 695.
On appeal, the defendant argues that the asset standstill order ‘‘may fairly be read to mean that [he] was permitted to transfer or encumber personal assets for ordinary living expenses and court-ordered alimony and support payments.’’ We do not quarrel with that contention. To the extent that the defendant made any voluntary transfers of his personal assets to pay such expenses, including ones made from funds contained in his Farmington Bank account in 2012, those transfers certainly complied with the terms of the asset standstill
order. This case, however, is not about transfers of the defendant’s personal assets to pay qualifying expenses. Rather, this case is about the transfer13 of the defendant’s wages (1) in their entirety, (2) into the bank account of a third party, (3) subsequent to the freezing of the defendant’s own bank account into which his wages previously were deposited, (4) for the purpose of shielding those assets from the reach of a judgment creditor. We reiterate that ambiguity is determined by considering the language in question as applied to the particular facts of the case. Guided by that precept, we agree with the trial court that the voluntary transfer of the defendant’s wages in their entirety into Cristina’s account contravened the plain intent of the asset standstill order, irrespective of how those funds later were dispersed.
Ambiguity arises if the language in question, when read in context, is susceptible to multiple reasonable interpretations. See, e.g., Francis v. Fonfara, 303 Conn. 292, 300, 33 A.3d 185 (2012). In the context of the facts of this case, we
We further conclude that the court’s determination that the defendant wilfully violated the asset standstill order is supported by the evidence in the record before us. The defendant testified that his Farmington Bank account became frozen in October, 2012, at which time the defendant and Cristina responded by opening a People’s United Bank account solely in Cristina’s name. The court found, and the evidence reflects, that her account was opened for the express purpose of placing the entirety of the defendant’s wages outside the reach of a judgment creditor. By so doing, the court found that the defendant ‘‘engaged in a gross exercise of self-help, which the law disallows, and wilfully disobeyed the asset standstill order by depositing the entirety of his wages . . . into Cristina’s bank account, outside the reach of the plaintiff.’’ The court thus concluded that ‘‘[t]o exonerate [the defendant’s] wages-related conduct would be an undue inducement to litigants’ exercise of self-help.’’ (Internal quotation marks omitted.) We concur with that assessment.
In rendering a judgment of contempt, the court recognized that contempt is a drastic measure, but emphasized that ‘‘this case, which does not involve the collection of a ‘routine debt,’ falls well outside the parameters of ‘normal circumstances,’ where the defendant has gone to great lengths to deprive the plaintiff of the ability to use statutory collection procedures. The court
concludes that extraordinary circumstances warrant the court’s use of the contempt power in the present case.’’ We agree and, therefore, conclude that the court did not abuse its discretion in holding the defendant in contempt.
II
The defendant claims that the court failed to consider the defendant’s ability to pay in imposing a compensatory fine. We do not agree.
In Ahmadi v. Ahmadi, 294 Conn. 384, 397, 985 A.2d 319 (2009), our Supreme Court addressed a similar claim, as the defendant in that case argued that ‘‘the trial court’s contempt order was improper because the court failed to elicit evidence of the defendant’s financial ability before crafting a payment order.’’ In response, the court clarified that it was the defendant who bore the burden ‘‘to prove any financial incapacity.’’ Id., 397. The court then articulated the standard applicable to appellate review of such claims, stating: ‘‘Whether the defendant established his inability to pay the order by credible evidence is a question of fact. Questions of fact are subject to the clearly erroneous standard of review. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence . . . we give great deference to its findings.’’ (Internal quotation marks omitted.) Id., 397–98.
After finding the defendant in contempt of the asset standstill order, the court in the present case imposed a compensatory fine of $2.2 million ‘‘payable directly to [the plaintiff] in an amount of $25,000 per
That finding is substantiated by the evidence in the record before us. At the contempt hearing, the defendant testified that he continued to earn a gross annual income of $1.2 million from St. Francis Hospital, which resulted in a net income after taxes in excess of $700,000, or almost $60,000 per month.14 Also admitted into evidence as full exhibits were statements from certain individual retirement accounts held by the defendant. A statement from an account with Charles Schwab & Co., Inc., specifies an ‘‘account value’’ of
$802,888.19 as of May 31, 2017. A statement from an account with American Funds, administered by Capital Group, specifies an ‘‘[e]nding value’’ of $464,910.48 as of June 30, 2017. Furthermore, with respect to his liabilities, the defendant testified that he made monthly mortgage payments of $7500 and monthly payments of $14,000 for his ‘‘divorce-related obligations.’’ Beyond those obligations, the defendant testified that he had no other long-term debt.
In light of the foregoing, the court reasonably could conclude that the defendant had not proven a financial incapacity to comply with the court’s fine of $25,000 per month. The court’s finding that the defendant possessed ‘‘sufficient income and other assets’’ to pay that fine is supported by evidence in the record and, therefore, is not clearly erroneous.
III
The defendant also claims that the court abused its discretion in imposing the $2.2 million compensatory fine. Although we agree with the court’s conclusion that the plaintiff was harmed by the defendant’s contemptuous conduct, we disagree with its measure of the resulting damages. A new hearing on damages, therefore, is warranted in the present case.
As this court recently observed, ‘‘[w]e review the propriety of the fines imposed [for civil contempt] pursuant to an abuse of discretion standard.’’ Medeiros v. Medeiros, 175 Conn. App. 174, 202, 167 A.3d 967 (2017). With respect to subordinate findings of fact, ‘‘we review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. . . . A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.’’ (Internal quotation marks omitted.) Wethersfield v. PR Arrow, LLC, 187 Conn. App. 604, 653, 203 A.3d 645, cert. denied, 331 Conn. 907, 202 A.3d 1022 (2019).
The following additional facts are relevant to this claim. In its memorandum of decision, the court found that the defendant wilfully deposited a total of $2,220,400.67 into Cristina’s bank account in contravention of the asset standstill order
factual findings with respect to the plaintiff’s actual pecuniary losses.
In response, the defendant filed a motion to reargue, in which he alleged that the plaintiff had failed to present ‘‘evidence of what particular damages she sustained as a result’’ of his noncompliance with the asset standstill order. The defendant further alleged that the court ‘‘without explanation, apparently used as a basis for the amount of the fine of contempt the total amount deposited into the subject account. This amount is not the proper measure of damages to be used in an order of contempt. Rather, the amount must be specifically related to the damages caused by the purported contempt of the asset standstill order.’’ By order dated November 30, 2017, the court denied that motion, stating: ‘‘The [defendant] has failed to demonstrate that the court overlooked a controlling decision or legal principle, that the court misapprehended the facts, that the court’s decision contains inconsistencies, and/or that the court failed to address a legal claim raised previously.’’
After commencing the present appeal, the defendant filed a motion for articulation with the trial court, in which he sought, inter alia, an articulation of the factual basis of the court’s finding that the compensatory fine ‘‘represents the plaintiff’s proven, actual losses as a result of [the defendant’s] wilful violations of the asset standstill order.’’ In denying that motion, the court stated that it had ‘‘re-reviewed the memorandum and order. Based on that review, the court concludes that the requested articulations are not necessary for the proper presentation of the issues.’’ The defendant then filed a motion for review with this court, in which he requested appellate review of the court’s denial of his motion for articulation. In its March 21, 2018 order, this court granted review, but denied the relief requested therein.
Our analysis begins with the well established principle that ‘‘a trial court possesses inherent authority to make a party whole for harm caused by a violation of a court order, even when the trial court does not find the offending party in contempt.’’ O‘Brien v. O‘Brien, 326 Conn. 81, 96, 161 A.3d 1236 (2017). As this court recently observed, ‘‘it has long been settled that a trial court has the authority to enforce its own orders. This authority arises from the common law and is inherent in the court’s function as a tribunal with the power to decide disputes. . . . [I]n a contempt proceeding . . . a trial court has broad discretion to make whole a party who has suffered as a result of another party’s failure to comply with a court order.’’ (Citation omitted; internal quotation marks omitted.) Nappo v. Nappo, 188 Conn. App. 574, 596, 205 A.3d 723 (2019).
A close reading of its memorandum of decision indicates that the court endeavored to do precisely that. The
contemptuous conduct in this case involves a deliberate attempt on the part of the defendant to thwart the plaintiff’s ability to utilize statutory collection procedures by depositing the entirety of his wages into the account of a third party in contravention
We nevertheless disagree with the measure of damages set forth in the court’s memorandum of decision. Under our law, compensatory fines must be narrowly circumscribed, and must be ‘‘confined’’ to the actual losses sustained by a contemnee as a result of noncompliance with a court order. DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 279–80, 471 A.2d 638 (1984). As our Supreme Court explained, ‘‘[j]udicial sanctions in civil contempt proceedings may, in a proper case, be employed . . . to compensate the complainant for losses sustained. . . . Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of [the] complainant’s actual loss . . . . Civil contempt proceedings are not punitive—i.e., they are not imposed for the purpose of vindicating the court’s authority—but are purely remedial. . . . [I]t is well settled . . . that the court may, in a proceeding for civil contempt, impose the remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damages he may have sustained by reason of the contumacious conduct of the offender. . . . [S]uch a compensatory fine must necessarily be limited to the actual damages suffered by the injured party as a result of the violation . . . .’’ (Citations omitted; emphasis altered; internal quotation marks omitted.) Id., 278–79. Moreover, the court must furnish an adequate factual basis to substantiate its actual loss determination. See Medeiros v. Medeiros, supra, 175 Conn. App. 203–204; DPF Financial Holdings, LLC v. Lyons, 129 Conn. App. 380, 387, 21 A.3d 834 (2011).
The facts of this case plainly indicate, and the court so found, that the principal loss sustained by the plaintiff was the inability to employ statutory collection procedures against the defendant, and the remedy of attachment in particular.15 See
The writ of attachment is an instrument intended to
secure the assets of a judgment debtor. See Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 557, 944 A.2d 329 (2008) (‘‘[t]he purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiff’s judgment’’ [internal quotation marks omitted]); Rhode Island Hospital Trust National Bank v. Trust, 25 Conn. App. 28, 40, 592 A.2d 417 (Foti, J., dissenting) (‘‘remedy of attachment provides necessary security for the creditor by protecting it from the uncertainties of future events’’), cert. granted, 220 Conn. 904, 593 A.2d 970 (1991) (appeal withdrawn July 10, 1992); Cerna v. Swiss Bank Corp., 503 So. 2d 1297, 1298 (Fla. App.) (‘‘a writ of attachment . . . serves as a lien upon property which may
At the same time, a properly served writ of attachment does not, in and of itself, establish a judgment creditor’s entitlement to liquidate or possess the asset in question, but rather ‘‘enables a creditor to gain priority over any subsequent claim to the attached property,’’ and impairs the judgment debtor’s ability to dispose of the asset. Mac‘s Car City, Inc. v. DiLoreto, 238 Conn. 172, 179–80, 679 A.2d 340 (1996). As our Supreme Court explained long ago, an attachment ‘‘has no effect but to take the [asset in question] into the custody of the law, to secure it against the alienation of the debtor, and the attachment of other creditors, and to hold it to be levied upon by an execution . . . .’’ Lacey v. Tomlinson, 5 Day 77, 80 (1811); accord Camp v. Bates, 11 Conn. 50, 54 (1835) (when asset is attached ‘‘the hand of the law is upon it’’). Furthermore, as with any prejudgment remedy, a defendant whose assets are the subject of an attachment is entitled to a hearing, at which the court must take into account ‘‘any defenses, counterclaims or set-offs’’ asserted by the defendant. See
We agree with the plaintiff that, had the defendant deposited his wages into an account like the one he maintained with Farmington Bank, she very likely would have been able to avail herself of the collection procedures codified in our General Statutes. For that reason, the court properly found that the plaintiff was deprived of the ability to utilize statutory collection procedures as a result of the defendant’s contemptuous conduct. The court found, and the record substantiates,
that the plaintiff lost the ability to attach $2,220,400.67 in wages that the defendant deposited into Cristina’s bank account.
The court nevertheless failed to furnish an adequate factual basis to support its determination that the plaintiff had proven $2.2 million in actual pecuniary losses as a result thereof. An attachment merely provides security for a judgment creditor; whether that judgment creditor ultimately may execute on the attachment, in whole or in part, to obtain satisfaction of an outstanding judgment is an altogether different question, and one that is dependent on a number of factors, including the extent to which the judgment has been satisfied and the existence of other attachments on the assets of the judgment debtor.16 Furthermore, a judgment debtor who
Apart from impairing the plaintiff’s ability to attach such assets, the court made no findings that provide the requisite factual basis for its $2.2 million compensatory fine, such as the amount of attorney’s fees expended by the plaintiff in pursuing the contempt motion. Absent such findings, the court could not ensure that its compensatory fine was confined to the actual loss sustained by the plaintiff, as required under Connecticut law. See DeMartino v. Monroe Little League, Inc., supra, 192 Conn. 279–80; DPF Financial Holdings, LLC v. Lyons, supra, 129 Conn. App. 386–88.
It is axiomatic that this court, as an appellate tribunal, cannot find facts. See State v. Edwards, 314 Conn. 465, 478, 102 A.3d 52 (2014). ‘‘[T]his appellate body does not engage in fact-finding. Connecticut’s appellate courts cannot find facts; that function is, according to our constitution, our statute, and our cases, exclusively assigned to the trial courts.’’ (Internal quotation marks omitted.) Hogan v. Lagosz, 124 Conn. App. 602, 618, 6 A.3d 112 (2010), cert. denied, 299 Conn. 923, 11 A.3d 151 (2011). We therefore are not at liberty to resolve the question of precisely what actual pecuniary losses the plaintiff suffered as a result of the defendant’s contemptuous conduct.
Because the court’s finding that the plaintiff sustained an actual loss of $2.2 million lacks the necessary factual basis, we conclude that the court abused its discretion in imposing a compensatory fine in that amount. The parties thus ‘‘are entitled to a hearing on damages to determine [the precise measure of the loss that] occurred as a result of the defendant’s contemptuous
conduct in violation of the court’s order.’’ DPF Financial Holdings, LLC v. Lyons, supra, 129 Conn. App. 388. Accordingly, a remand to the trial court for a new hearing limited solely to the issue of damages is necessary.
The judgment is reversed only as to the order of damages and the case is remanded for a hearing on damages with respect to the court’s judgment of contempt. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.