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Krahel v. Czoch

Court of Appeals of Connecticut

November 6, 2018

WIOLETTA KRAHEL
v.
MARIUSZ CZOCH

          Argued May 14, 2018

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford and tried to the court, Gould, J.; judgment dissolving the marriage and granting certain other relief, from which the defendant appealed to this court; thereafter, the court, Gould J., granted the plaintiff's motion for an order to effectuate the judgment, and the defendant filed an amended appeal with this court. Reversed in part; further proceedings.

          Jeffrey D. Ginzberg, for the appellant (defendant).

          Yakov Pyetranker, for the appellee (plaintiff).

          DiPentima, C. J., and Keller and Elgo, Js.

          OPINION

          ELGO, J.

         The defendant, Mariusz Czoch, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Wioletta Krahel. On appeal, the defendant claims that the court improperly (1) sanctioned him for violating a discovery order that precluded him from testifying about his current financial condition and business, (2) entered orders for arbitration and mediation relative to personal property leaving the dispute unresolved at the time of judgment, and (3) awarded a chose in action and obligation to repay a debt. We agree in part with the defendant's second claim and, accordingly, reverse in part the judgment of the trial court.

         The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. The parties, who both immigrated to the United States from Poland, married in Stamford on January 26, 2005. There are two minor children born issue of the marriage. Neither child support nor custody of those children is at issue in this appeal.

         Before emigrating from Poland, the plaintiff was employed as an attorney. At the time of dissolution, she was employed by International Fund Services, LLC, with an annual salary of $106, 217. The defendant, at that time, was self-employed in the construction industry. The name of his business is Champion Development, LLC (Champion). Fifty percent of Champion is owned by the defendant's son from a previous relationship. According to the defendant's April 11, 2017 financial affidavit, his net weekly income is $1, 597.73, which includes income from Champion, ‘‘side work, '' and weekly rental income from one of the two marital properties.

         Those two properties are both located on Soundview Drive in Stamford. At the time of trial, the plaintiff resided at 72 Soundview Drive and the defendant, along with tenants, resided at 80 Soundview Drive. The plaintiff was the sole owner of both properties. The72 Sound-view Drive property had a fair market value of $525, 000 and was encumbered by a mortgage of $351, 414.20. The 80 Soundview Drive property had a fair market value of $625, 000, subject to a $436, 742.60 mortgage. The plaintiff also owned property in Poland valued at $150, 000, and the defendant owned property in Poland that was valued at $200, 000.

         In March, 2015, the plaintiff filed the present dissolution action, claiming that the parties' marriage had broken down irretrievably. Following a trial, the court, on May 18, 2017, dissolved the marriage. The court found that the defendant was more at fault for the breakdown of the marriage and that the plaintiff was more credible regarding the reasons for its breakdown.

         In its memorandum of decision, the court issued several financial orders related to property distribution and assignment of debt.[1] The parties agreed on a shared parenting plan, which the court approved and incorporated by reference into the judgment of dissolution. The court did not award alimony to either party. The court awarded the two Soundview Drive properties to the plaintiff and awarded each party their respective properties in Poland. The plaintiff also was awarded a 2010 BMW 750IL motor vehicle, her jewelry, and her 401(k) accounts.[2]

         In addition, the court awarded the defendant ‘‘the asset listed [on his financial affidavit] as money due to defendant from father-in-law'' and his interest in Champion. According to the financial affidavits submitted by the defendant, $495, 000 was due to the defendant for work and improvements that he performed on his father-in-law's property in Poland. The defendant was also awarded a 2003 Dodge Ram motor vehicle, a 2005 Sea Ray Sundancer vessel, a 2008-2009 Sea Ray 340 Sundancer vessel, a Polaris snowmobile, a 2006 Bennington catamaran, and two pianos.[3]

         Each party was awarded the balance of their separate bank accounts, as reflected on their respective financial affidavits. In addition to the aforementioned financial orders, the court ordered that, if the parties were unable to divide their personal property by agreement, they were to submit to binding arbitration with a mutually agreed upon arbitrator.[4] On June 6, 2017, the defendant filed the present appeal from the judgment of dissolution. The plaintiff subsequently filed a motion for an order to effectuate the judgment, in which she requested a referral of the remaining personal property issues to mediation. In response, the court amended its order to state that ‘‘[t]he parties shall divide their personal property by agreement, and, if they are unable to do so, shall participate in mediation before a family relations counselor in the absence of such agreement.'' The court also ordered that the parties would be equally responsible for certain loans they had obtained from the plaintiff's father, which totaled $135, 000. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the court improperly sanctioned him for violating a discovery order that precluded him from testifying about his current financial condition and business. Specifically, the defendant argues that the discovery order was not violated, the remedy of preclusion was disproportionate to the harm, and the court's preclusion adversely affected the result of the trial.[5] In response, the plaintiff argues that the defendant committed a clear violation of the court's order, that the preclusion order was proportionate to the failure to comply with the court's order, and that no harm resulted from the preclusion. We agree with the plaintiff.

         The following additional facts are relevant to this issue. On June 13, 2016, the plaintiff served a supplemental request for disclosure and production on the defendant. Prior to trial, the plaintiff, on March 21, 2017, filed a motion for order of compliance pursuant to Practice Book §§ 13-14 and 25-32A, due to the defendant's failure to comply with the plaintiff's supplemental request. That motion identified numerous outstanding discovery requests including, most notably, his 2014, 2015, and 2016 individual income tax returns and those of Champion. In addition, the defendant failed to produce a current sworn financial affidavit, any general ledgers for Champion, any profit and loss statements for Champion, bank statements, and several other financial statements.

         On April 10, 2017, the court held a hearing on those discovery issues. At that hearing, the plaintiff requested an order precluding the defendant from offering any evidence at trial that would be within the scope of the document request with which he had failed to comply. Although the defendant was not present for the hearing, his counsel represented that ‘‘the defendant had an accountant who fired him right around the time that this action started. I believe it was . . . in 2015 or 2016. At that point in time [the defendant] had not filed any tax returns. The last return he had filed was 2013. He's found a new account[ant] who has had to play catch up for the last three years in putting all of these documents together.'' The defendant's counsel then assured the court that the defendant would furnish the documents in question by Monday, April 17, 2017. The defendant's counsel stated that ‘‘it is [her] understanding from [the defendant] . . . that those documents are being prepared and should be ready by Monday to be provided . . . to [her] so that [she] can in turn provide to the plaintiff.''[6]

         At the conclusion of the hearing, the court ordered production of the outstanding documents by Monday, April 17, 2017, and reserved the issue of sanctions for the trial judge.[7] The defendant, however, failed to produce the requested financial documents by the April 17 deadline.[8] The plaintiff thus filed a motion to preclude and for sanctions, which sought to preclude the defendant from offering any testimonial or documentary evidence with respect to the substance of those financial matters.

         On the first day of trial, April 18, 2017, the court heard from the parties regarding the motion to preclude. The plaintiff represented that the defendant's compliance with the order was wholly inadequate and that the plaintiff did not receive any documents related to the defendant's income, the defendant's business, or the defendant's bank statements. The defendant's counsel then stated: ‘‘[M]y client's position is that the accountant failed him. The accountant was supposed to get it done. She said that . . . she was going to get it done and then Monday came and the accountant didn't get it done.'' In response, the court noted that the defendant was obligated to provide the requested financial information and emphasized that the discovery request had been pending since June, 2016.

         The court then asked the plaintiff to identify the particular documentation that she had not received in contravention of the court's production order. The plaintiff at that time detailed several missing documents, including (1) the personal income tax returns of the defendant for tax years 2014, 2015, and 2016; (2) Champion's income tax returns for tax years 2014, 2015, and 2016; (3) 1099 tax forms for tax years 2015 and 2016; (4) Schedule K-1 tax forms for the defendant or Champion for years 2014, 2015, and 2016; (5) a general ledger for Champion for years 2014, 2015, and 2016; (6) a profit and loss statement for Champion for years 2014, 2015, and 2016; (7) account statements for a Bank Polski account; (8) account statements from a People's United Account associated with Champion from July 1, 2015, to the present; (9) any documents related to the defendant's properties in Poland; (10) any documents related to wire transfers sent to or received from Poland; and (11) receipts from travel expenses and expenses associated with their children. The plaintiff thus asked the court to preclude the defendant ‘‘from offering any evidence, by way of his testimony, or through records'' with respect to those matters. The court granted the plaintiff's motion to preclude any such evidence as to accounts, statements, and records listed by counsel as related to those matters.

         Days later, during trial, the defendant's counsel asked the defendant about Champion's hiring practices without giving a specific time frame. The plaintiff objected to the question, claiming that any testimony regarding the years for which the defendant failed to produce the company's financial information was precluded. The court sustained the plaintiff's objection. The defendant's counsel nevertheless continued to ask questions about the defendant's business during the 2014 to 2016 time period and attempted to provide an offer of proof. In response, the court continued to sustain the plaintiff's objections on the basis of its outstanding preclusion order and, as a result of that conduct, ultimately entered a further order of sanctions against the defendant preventing him from offering testimony related to matters referenced by the preclusion order. The defendant now challenges the propriety of the preclusion order.

         In Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 776 A.2d 1115 (2001), our Supreme Court set forth the legal standard governing appellate review of a court's order of sanctions for a discovery order violation. ‘‘In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.'' Id., 17-18.

         We first address whether the discovery order was reasonably clear. On appeal, the defendant does not contest the clarity of the discovery order. He also has not suggested that he was uncertain regarding the fact or nature of his obligations. Having failed to address the first prong of Millbrook, the defendant effectively concedes that the order was reasonably clear. See Yeager v. Alvarez, 302 Conn. 772, 785, 31 A.3d 794 (2011).

         Under the second prong of the Millbrook test, we examine the record to determine whether the discovery order was violated. ‘‘If an appellate court is called upon to review the findings of the trial court we apply our clearly erroneous standard, which is the well settled standard for reviewing a trial court's factual findings. . . . 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.) Faile v. Stratford, 177 Conn.App. 183, 200, 172 A.3d 206 (2017).

         The defendant claims that he did not violate the court's discovery order because the documents that he failed to produce did not exist, as his accountant had not created them yet and ‘‘[o]ne cannot produce what does not exist.'' The defendant, therefore, argues that violating the discovery order was impossible. At trial, however, his counsel duly admitted that it was the defendant's duty to provide the requested information:

‘‘The Court: Whose responsibility is it to talk to the accountant, your client, right?
‘‘[The Defendant's Counsel]: Obviously, I mean, you know.
‘‘The Court: Whose responsibility is it to provide the information, your client, right?
‘‘[The Defendant's Counsel]: Yes.
‘‘The Court: Okay.''

         Moreover, during the discovery hearing, the defendant's counsel repeatedly represented that the defendant would produce the requested documents in accordance with the court's discovery order. It nonetheless is undisputed that the defendant failed to produce several documents by the deadline set forth in that order. We, therefore, cannot conclude that the court's finding that the defendant violated its discovery order was clearly erroneous.

         We next address the third prong of the Millbrook test, under which we utilize the abuse of discretion standard to determine whether the sanction imposed was proportional to the violation. ‘‘In reviewing a claim that [the] discretion [of the trial court] has been abused, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the court could reasonably conclude as it did.'' (Internal quotation marks omitted.) Id., 201. When reviewing the reasonableness of a trial court's imposition of sanctions for violation of a discovery order, we employ the following factors: ‘‘(1) the cause of the [disobedient party's] failure to respond to the posed questions, that is, whether it is due to inability rather than the willfulness, bad faith or fault of the [disobedient party] . . . (2) the degree of prejudice suffered by the opposing party, which in turn may depend on the importance of the information requested to that party's case; and (3) which of the available sanctions would, under the particular circumstances, be an appropriate response to the disobedient party's conduct.'' (Internal quotation marks omitted.) Yeager v. Alvarez, supra, 302 Conn. 787.

         An analysis of the three factors set forth in Yeager supports the court's decision to preclude the defendant's testimony. With respect to the first factor, the defendant claims that the failure to produce the requested documents was ‘‘not due to willfulness; but rather inability to comply.'' The defendant repeatedly asserts throughout his brief that the documents did not exist because his accountant ‘‘failed'' him and his new accountant ‘‘had not had time to prepare the defendant's tax returns or his profit and loss statements.'' The plaintiff, by contrast, argues that the defendant's conduct in failing to produce the requested documents was wilful or, at the ...


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