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 ...