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 ...