D'Egidio v. D'Egidio
D'Egidio v. D'Egidio
2023 WL 8094928 (Conn. Super. Ct. 2023)
July 18, 2023
Kowalski II, Ronald E., Judge
Summary
The plaintiff filed a motion for contempt and sanctions against the defendant for not fully complying with a court order regarding discovery. The defendant also stopped depositing her compensation into the joint account, leading to the plaintiff's motion for an order regarding household expenses. Both parties have submitted financial affidavits and the defendant has made transfers and withdrawals from the joint account without providing sufficient information. The court granted both of the plaintiff's motions.
Note: This is an unpublished decision. Check your jurisdiction’s rules about citing unpublished decisions before citing this case to a court.
Joseph D'EGIDIO
v.
Kathleen D'EGIDIO
v.
Kathleen D'EGIDIO
DOCKET NO. FST-FA-22-6058986-S
Superior Court of Connecticut, J.D. OF STAMFORD/NORWALK. AT STAMFORD
July 18, 2023
Kowalski II, Ronald E., Judge
MEMORANDUM OF DECISION
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
*1 The present action is a dissolution of marriage action that was filed on November 16, 2022, with trial scheduled to commence on February 13, 2024. Before the court are two pendente lite plaintiff's motions that were the subject of an evidentiary hearing on July 17, 2023, at which both parties were represented by counsel, testified, and documents were admitted into evidence. The plaintiff's motion for contempt and sanctions re: discovery, pendente lite (#129.00), seeks a finding of contempt and the imposition of sanctions against the defendant for her failure to comply fully with order #118.01. The plaintiff's motion for order re: contribution to household expenses, pendente lite (#120.00), seeks the issuance of financial orders which he claims are necessary to maintain the status quo during the pendency of this action. For the reasons set forth herein, both motions are GRANTED.
I. FINDINGS OF FACT
The court makes the following findings of fact, having had an opportunity to consider the credibility of the witnesses, the evidence before it and the contents of the court file. On October 30, 2022, the defendant was served with process in this action, including the summons, complaint, and automatic orders. Prior to the commencement of the action, and to this day, the parties have resided together at the marital residence with their minor children, who are nine and six years old, respectively.
On November 22, 2022, the plaintiff served a request for mandatory production, pendente lite, on the defendant. By February 24, 2023, the defendant had not produced the required documents, and the plaintiff filed a motion for order of compliance, pendente lite (#109.00), which was granted by order #109.01 on March 14, 2023. Said order provided that “[t]he defendant shall produce all documents that are responsive to the plaintiff's request for mandatory production no later than March 31, 2023.” On April 6, 2023, the defendant served partial compliance on the plaintiff. By May 31, 2023, the defendant had still not produced the required documents, and the plaintiff filed a second motion for order of compliance, pendente lite (#118.00), which was granted by order #118.01 on July 6, 2023. Said order provided that “[t]he defendant shall produce all outstanding discovery no later than 5:00 p.m. on July 12, 2023.” On July 11, 2023, the defendant served additional partial compliance on the plaintiff, but had still not substantially complied with order #118.01, resulting in the plaintiff's filing of motion #129.00.
Both parties are employed. Since prior to the commencement of this action and continuing until April 2023, the parties handled the payment of household bills as follows. The plaintiff would have his compensation from employment deposited into an account at Santander bank ending in 6906 which is in his sole name, and the defendant would have her compensation from employment deposited into the parties’ joint account at Chase bank ending in 6765. The plaintiff would then pay the mortgage on the marital residence from the Chase account ending in 6765 and would pay the balance of the household expenses, including but not limited to utilities, home equity line of credit, the payment on windows that had been installed at the marital residence, pest control, insurance, and credit cards from the Santander account ending in 6906. In April 2023, without the plaintiff's consent, the defendant stopped depositing her compensation from employment into the Chase account ending in 6765. The plaintiff remains ready, willing, and able to continue to effectuate the payment of the mortgage and household expenses as he did prior to April 2023, provided the defendant resumes depositing her compensation from employment into the account at Chase bank ending in 6765.
*2 The plaintiff's financial affidavit (#127.00) is dated July 12, 2023 and reflects a total gross weekly income of $2,423, total net weekly income of $1,845, total weekly expenses and liabilities of $2,494, total cash value of assets of $544,015 and total liabilities of $94,373. The defendant's financial affidavit (#116.00) is dated April 13, 2023 and reflects a total gross weekly income of $3,391, total net weekly income of $2,417, total weekly expenses and liabilities of $2,642, total cash value of assets of $185,782 and total liabilities of $98,000.
Since the commencement of this action, the defendant has made the following transfers and withdrawals totaling $48,231.69 from the Chase account ending in 6765: (1) ATM withdrawals totaling $7,715.60; (2) Venmo transactions totaling $948.43; (3) Cash App transactions totaling $9,950; (4) transfers to Chase bank account ending in 9540 totaling $27,367.66; and (5) transfers to Chase bank account ending in 3962 totaling $2,250, for a grand total of $48,231.69. The defendant testified that she made these transactions but could not provide details regarding same. To date, the defendant has not provided the plaintiff with discovery compliance which would permit him to determine whether some, or all, of such transactions are appropriate.
With respect to the defendant's conduct regarding discovery compliance, the defendant testified that around the time of the commencement of this action, she opened a Chase bank account ending in 9540 but that she did not know whether she produced copies of all statements from that account to her attorney so that they could be produced to the plaintiff. That account is not listed on the defendant's financial affidavit. Also, the defendant's financial affidavit (#116.00) reflects a Chase bank account ending in 3962 that is solely in her name, although during her testimony she disclaimed any knowledge of that account. The defendant further testified that since the commencement of this action, she has both invested in cryptocurrency and has given funds to a third-party with whom she has a romantic relationship. The defendant also gave conflicting testimony at the hearing as to whether she currently held any account containing cryptocurrency.
Additional findings of fact will be set forth herein, as necessary.
II. DISCUSSION RE: MOTION FOR CONTEMPT #129.00
Our Supreme Court has set for the legal standard to be applied when deciding a motion for contempt as follows:
To constitute contempt, it is not enough that a party has merely violated a court order; the violation must be wilful. See, e.g., Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998); Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983). “The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt. Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988).” (Internal quotation marks omitted.) Eldridge v. Eldridge, supra, at 532, 710 A.2d 757.It is the burden of the party seeking an order of contempt to prove, by clear and convincing evidence, both a clear and unambiguous directive to the alleged contemnor and the alleged contemnor's wilful noncompliance with that directive. See, e.g., Norberg-Hurlburt v. Hurlburt, 162 Conn. App. 661, 671, 133 A.3d 482 (2016); Marshall v. Marshall, 151 Conn. App. 638, 651, 97 A.3d 1 (2014); Statewide Grievance Committee v. Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001); see also Latino Officers Assn. City of New York, Inc. v. New York, 558 F.3d 159, 164 (2d Cir. 2009). If the moving party establishes this twofold prima facie case, the burden of production shifts to the alleged contemnor to provide evidence in support of the defense of an inability to comply with the court order. See, e.g., Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 397, 985 A.2d 319 (2009); Eldridge v. Eldridge, supra, 244 Conn. at 532, 710 A.2d 757; Leslie v. Leslie, 174 Conn. 399, 403, 389 A.2d 747 (1978); see also Gascho v. Global Fitness Holdings, LLC, 875 F.3d 795, 800 (6th Cir. 2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 2576, 201 L. Ed. 2d 294 (2018); Combs v. Ryan's Coal Co., 785 F.2d 970, 984 (11th Cir.), cert. denied sub nom. Simmons v. Combs, 479 U.S. 853, 107 S. Ct. 187, 93 L. Ed. 2d 120 (1986).
*3 Puff v. Puff, 334 Conn. 341, 365, 222 A.3d 493 (2020).
The plaintiff has established, by clear and convincing evidence, that order #118.01 is clear and unambiguous, that the defendant had notice of said order, and that the defendant has failed to substantially comply with said order. The defendant testified regarding health issues that have prevented her from focusing on the present action, but given the length of time that the plaintiff has been pursuing discovery compliance and the defendant's continued lack of compliance with order #118.01 even up to the date of the hearing, the court finds that the defendant has failed to prove a valid defense to a finding of contempt by a preponderance of the evidence. Accordingly, having fully considered the applicable statutes and rules of practice, the relevant case law, the evidence, the demeanor and the credibility of the parties, the contents of the court file and the argument of counsel, the court finds the defendant's violation of order #118.01 to be wilful, the motion for contempt is GRANTED and the court issues the following orders.
III. ORDERS ON MOTION FOR CONTEMPT #129.00
A. On or before August 25, 2023, the defendant shall produce to the plaintiff and file with the court a complete and accurate financial affidavit.
B. Or before August 25, 2023, the defendant shall produce to the plaintiff all documents required to be produced by Practice Book § 25-32, including but not limited to the following and bearing in mind the defendant's continuing duty to disclose:
- all paystubs from December 23, 2022 forward;
- detailed Cash App statements and transactions records from November 22, 2020 forward;
- detailed Venmo statements and transaction records from November 22, 2020 forward;
- for Chase bank account ending in 3962, statements (or a transaction history if statements are not available) from November 22, 2020 or the date the account was opened, whichever is later, forward;
- for Chase bank account ending in 9540, statements (or a transaction history if statements are not available) from November 22, 2020 or the date the account was opened, whichever is later, forward;
- for Amazon Prime credit card account ending in 6123, statements (or a transaction history if statements are not available) from November 22, 2020 or the date the account was opened, whichever is later, forward; and
- To the extent the defendant has previously provided certain of the aforementioned documents, said documents need not be provided again.
C. The defendant shall file and serve upon the plaintiff a notice upon complying with this order.
D. If the plaintiff contends that the defendant has not made substantial compliance, he may seek further relief.
E. If the defendant fails to comply with this order in a timely fashion, beginning on August 26, 2023, the defendant shall pay to the plaintiff a fine of $100 per day as a sanction, until the date on which substantial compliance is made, or until the first day of trial, whichever is later. The total amount of the fine shall be determined at trial and shall be taken into account by the court when fashioning the financial orders in the judgment.
*4 F. The remote judicial pretrial schedule for August 10, 2023 is continued to September 6, 2023 at 2:00 p.m.
G. Order Unsealing Financial Affidavits. Because financial issues were in dispute at the hearing on this motion, the automatic sealing of the parties’ sworn statements of income, expenses, assets, and liabilities filed with the court pursuant to Practice Book § 25-30 is terminated in accordance with Practice Book § 25-59A(h) with respect to all such sworn statements now on file with the court.
H. The balance of the relief requested in the motion is denied.
IV. DISCUSSION RE: MOTION FOR ORDER #120.00
The facts found herein raise serious concerns as to the defendant's conduct with respect to finances since the commencement of this action. During that time, the defendant has withdrawn or transferred over $48,000 from the parties’ joint account at Chase bank ending in 6765, has sent money to a third party with whom she has a romantic relationship, and has failed to comply with court orders regarding discovery that have resulted in her being found in contempt on motion #129.00. In April 2023, the defendant unilaterally stopped depositing her compensation from employment into the parties’ joint account from which the mortgage on the marital residence has been paid since before the commencement of this action. At least some of the foregoing conduct may have been violative of the automatic orders.
As noted by Judge Winslow in Strich v. Strich, 47 Conn. Supp. 530, 532-33, 812 A.2d 216 (2002), “[t]he official commentary for Practice Book § 25-5 [Automatic Orders upon Service of Complaint or Application] states that the purpose of the rule is ‘to assist families in transition in maintaining, to the greatest extent possible, the status quo at the commencement of an action for dissolution of marriage.’ ... The freezing of assets, as provided by the first automatic order, should effectively allow for current family support, while preserving assets, avoiding waste and preventing fraud.” (Citations omitted.)
Our Supreme Court has observed that “[t]he status quo at the commencement of the litigation and the parties’ usual course of business will vary significantly from case to case.... [and] is best treated as a question of fact to be decided by the trial court, unfettered by rules or guidelines that may or may not be appropriate under the unique circumstances of a particular case.” O'Brien v. O'Brien, 326 Conn. 81, 116, 161 A.3d 1236 (2017).
Having fully considered the applicable statutes and rules of practice, the relevant case law, the evidence, the demeanor and the credibility of the parties, the contents of the court file and the argument of counsel, the motion for order is GRANTED and the court issues orders as set forth herein.
V. ORDERS ON MOTION #120.00
A. The defendant shall deposit all compensation from employment into the Chase bank account ending in 6765.
B. Neither party shall withdraw any funds from the Chase bank account ending in 6765 except as follows:
- the parties may withdraw funds in accordance with the automatic orders, except as limited by this order;
- the plaintiff may transfer money to his Santander bank account ending in 6765 in amounts not greater than necessary to pay the customary and usual household expenses as routinely paid from said account; otherwise, neither party may withdraw more than $100 per week without advance written consent of the other party; and
- neither party shall pay more than the monthly minimum payment due on any debt, including but not limited to credit card accounts, mortgages, and lines of credit, without advance written consent of the other party.
C. The plaintiff shall effectuate the timely payment of all household bills.
D. The balance of the relief requested in the motion is denied.