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Welsh v. Martinez

Court of Appeals of Connecticut

August 20, 2019

D'ANNA WELSH
v.
WILLIAM V. MARTINEZ

          Argued February 4, 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.

          Jeffrey J. Mirman, with whom were David A. DeBassio and, on the brief, Thomas J. Farrell, for the appellant (defendant).

          Irve J. Goldman, with whom, on the brief, was Timothy G. Ronan, for the appellee (plaintiff).

          Lavine, Prescott and Elgo, Js.

          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 nothing to worry about' and that no further surveillance equipment remained in the plaintiff's home, the transmissions from her bedroom thereafter continued and the defendant continued to receive daily e-mail reports from the spyware on the plaintiff's computer. The jury also was presented with evidence that despite her request for the defendant to leave her alone, he continued to appear unannounced and uninvited at her home. His behavior terrified the plaintiff, particularly when he informed her that ‘I can hear you from outside your house.' In addition, the defendant's angry and violent conduct left the plaintiff scared for her life.''[2] Welsh v. Martinez, 157 Conn.App. 223, 241, 114 A.3d 1231, cert. denied, 317 Conn. 922, 118 A.3d 63 (2015). The jury thereafter returned a verdict in favor of the plaintiff on all counts and awarded her $2 million in damages, the propriety of which this court affirmed on appeal. See id., 240-46.

         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 [the Uniform Fraudulent Transfer Act, General Statutes § 52-552a et seq.].''

         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 August 10, 2012. No wage garnishment to be sought at this time.'' On June 24, 2013, in response to a motion by the plaintiff, the court entered an additional order requiring the periodic disclosure of assets by the defendant (asset disclosure order).[7]

         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 Cristina's account, those funds later were used to pay ordinary living expenses, including court-ordered alimony and child support.[10]

         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 post-judgment 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 inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court's determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.'' (Citations omitted.) In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).

         ‘‘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 ...


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