Michelle Martucci v. Anthony Martucci (2011)

MEMORANDUM OF DECISION ON MOTION FOR CONTEMPT RE DISCOVERY COMPLIANCE DATED NOVEMBER 4, 2010 (# 137.00)

This motion seeks sanctions for the defendant's failure to comply with Plaintiff's First Set of Interrogatories dated December 11, 2009 (# 126.00, Exhibit A) and Plaintiff's Request for Production dated December 11, 2009 (# 126.00, Exhibit A) in this contested dissolution of marriage action.   This court has applied the standards and procedures set forth in Millbrook Owners Association, Inc. v. Hamilton Standard et al., 257 Conn. 1 (2001).  “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, not withstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning ․ Second, the record must establish that the order was in fact violated ․ Third, the sanction imposed must be proportional to the violation.”  Id. 17-18.

The court heard testimony, reviewed the documents on file, considered the exhibits offered at the January 11, 2011 hearing at which both parties were represented and appeared and applied the law of discovery.   The court makes the following finding of facts and legal conclusions.

The plaintiff, wife, commenced this action seeking a dissolution of marriage against the defendant, husband, returnable April 28, 2009.   Trial has been scheduled to commence in July 2011.   At the commencement of this litigation both parties resided in Stamford, Connecticut.   The plaintiff continues to reside in Stamford and the defendant has since moved to the State of New York.

The defendant filed two financial affidavits with this court;  September 21, 2009 (# 113.10) unsealed by court order on September 13, 2010 (# 136.00) and January 11, 2011 (no computer number has yet been assigned).   The January 11, 2011 financial affidavit is sealed.   The defendant's income comes from his wholly owned business located in Bronx, New York as well as rental and other investment income.   The defendant's annual gross income before taxes has been reported by the defendant in documents on file with this court as follows:  $426,768 in his unsealed September 21, 2009 financial affidavit (# 113.10);  $165,464 in his January 11, 2011 sealed financial affidavit (not yet assigned a computer number by the clerk);  $896,835 in a federal income tax return filed by the plaintiff and defendant jointly for 2007 (Exhibit 1, January 11, 2011 hearing), $554,304 in a federal income tax return filed by the defendant married filing separately for 2009 (Exhibit 2, January 11, 2011 hearing) and $157,201 in a Profit and Loss Statement from the defendant's wholly owned equipment rental business located in Bronx, New York for the period of January 1, 2010 through December 8, 2010 (Exhibit 4, January 11, 2011 hearing).   The gross income from the defendant's wholly owned equipment rental business, Tucci Equipment Rental Corp., was reported to be $5,755,233.03 for the period of January 1, 2010 through December 8, 2010 (Exhibit 4, January 11, 2011 hearing);  $7,043,036 on Form 8903 (Exhibit 2, January 11, 2011 hearing) and $4,942,082 on Form 8903 (Exhibit 1, January 11, 2011 hearing).

The plaintiff claims that she needs the supporting documents and information requested in the December 11, 2009 discovery in order to accurately determine the defendant's gross and net income.   She claims that the above listed sources are inconsistent, unreliable and unverified.

The defendant failed to file a financial affidavit within the time required by P.B. Section 25-30.   As a result the plaintiff was required to file Plaintiff's Motion to Compel Financial Affidavit, Pendente Lite dated July 10, 2009 (# 108.00).   Without the defendant's financial affidavit, the plaintiff was required to assign her Motion for Alimony and Child Support Pendente Lite dated April 29, 2009 (# 103.00/# 104.00) for fifteen separate short calendar dates.   On August 17, 2009 the court (Shay, J.) ordered that all financial orders on motions # 103.00/# 104.00 would be retroactive to August 17, 2009 (# 103.00/# 104.00).   On September 8, 2009 the court (Schofield, J.) ordered that the pendente lite alimony and child support motions (# 103.00/# 104.00) be assigned for “the short calendar on 9/21/09.   If defendant fails to show he will be ordered to pay $12,000/month in unallocated alimony and child support.”

On September 21, 2009, the pendente lite motions # 103.00/# 104.00 were heard and the defendant filed his financial affidavit (# 113.10).   The parties stipulated to pendente lite alimony and child support and the court, Shay, J. so ordered (# 114.10).   That order on motions # 103.00/# 104.00 stated in paragraph 4:  “Wife shall no longer be an employee of Tucci Equipment, Inc., and shall waive any claim to unemployment as a result hereof.”

From a comparison of both financial affidavits submitted to the court for the September 21, 2009 hearing (# 112.10 and # 113.10) and eliminating duplicate references, the court concludes that those financial affidavits disclose that the net joint assets of the parties are over $3,500,000.   In addition three assets were disclosed on the plaintiff's affidavit (# 112.10) with no value:  Tucci Equipment Rental Corporation, value to be determined, Tucci Company, value to be determined and Martucci Development, value to be determined.   The defendant's September 21, 2009 financial affidavit (# 113.10) makes no mention of these three assets.   The court notes that one or both of the Tucci entities have gross annual income of between $4,942,082 and $7,043,036 yet neither party submitted any valuation for these business entities.

On September 13, 2010 the court, Wenzel, J., ordered that the defendant “file an updated financial affidavit with the court and plaintiff by September 30, 2010.” (# 135.00).   The defendant failed to comply with this September 13, 2010 financial affidavit discovery order.   The plaintiff filed a Motion for Contempt Re:  Failure to Provide Updated Financial Affidavit Pendente Lite dated November 23, 2010 (# 144.00) claiming that the defendant still had not filed an updated financial affidavit.   Motion # 144.00 was assigned and partially heard by the undersigned on December 10, 2010.   As of December 10, 2010 the defendant had not filed an updated financial affidavit.   Not all motions were heard on December 10, 2010 and the hearing was continued to January 11, 2011.   At the commencement of the January 11, 2011 hearing the defendant filed an updated financial affidavit with the court and presented a copy to the plaintiff in open court.   That January 11, 2011 financial affidavit is sealed in the file.

The defendant did not file any objections to the two December 11, 2009 discovery requests filed by the plaintiff.   The defendant filed a Motion for Extension of Time, Pendente Lite dated January 18, 2010 (# 124.00) requesting until February 11, 2010 or thirty days in order to answer and/or object to the two discovery requests.   The motion contains a court order “Compliance by March 16, 2010 (Shay, J.).”   After February 16, 2010 the defendant filed no objections to either discovery request.   On March 17, 2010 the plaintiff filed a Motion for Order Pursuant to P.B. § 13-14 (# 126.00), which requested “that the court enter an order finding the defendant, Anthony Martucci (‘defendant’) in contempt for violating the Orders of the Court (Shay, J.) dated February 16, 2010 ordering that full compliance with outstanding discovery be made on or before March 16, 2010.”   The March 17, 2010 Motion for Order Pursuant to P.B. § 13-14 (# 126.00) was heard on March 29, 2010 and the following order entered:  “GRANTED and it is further ORDERED:  By April 16, 2010 documents to be provided.   If not provided $100.00 per diem to the moving party.”  (Malone, J., # 126.00.) The above order was in Judge Malone's handwriting and was signed by Judge Malone on page 8 of motion # 126.00. The March 29, 2010 transcript on file quotes the following March 29, 2010 order by Judge Malone on motion # 126.00:  “You have until April 16th to provide the documents.   If not, there will be $100 per diem to the moving party.”  (Exhibit 3, January 11, 2011 hearing.)   Prior to March 29, 2010 the defendant had not provided a single document in discovery.

On April 16, 2010 at 4:00 p.m. the defendant delivered to plaintiff's counsel a box of documents.   The plaintiff's counsel reviewed the box of documents and wrote a detailed letter with a list of incomplete items dated April 19, 2010.   The list of incomplete items included ten bank accounts, five credit cards and a listing of six other business statements and reports.   No records of real estate holdings were provided.   Plaintiff's counsel wrote to defendant's counsel to resolve the discovery matters on July 14, 2010, August 19, 2010, September 1, 2010 and October 18, 2010.   No further documents were provided in response to these four letters.

On November 4, 2010 this instant Motion for Contempt Re:  Discovery Compliance (# 137.00) was filed.   In that Motion the plaintiff requested the following relief:  (1) a finding of contempt;  (2) $100.00 per day retroactive to April 16, 2010 as per the March 29, 2010 order of Malone, J.;  (3) a preclusion of the defendant from offering earnings evidence;  (4) a negative inference;  (5) pendente lite alimony and support increase to $25,000 per month based on the documents provided;  and (6) attorney fees and costs.

The court finds that the two December 11, 2009 discovery requests (# 126.00) are orders of this court pursuant to Practice Book § 13-6, 13-9, 25-31 and 25-32.   The court finds that the court has ordered the defendant to comply with the two December 11, 2009 discovery requests (# 126.00) on January 19, 2010 (Shay, J.);   February 16, 2010 (Shay, J.) and March 29, 2010 (Malone, J.).   The court finds that the order to be complied with was reasonably clear.

The court finds that the documents provided to the plaintiff on April 16, 2010 were incomplete and failed to minimally respond to the income, assets and financial matters addressed in the two December 11, 2009 requests (# 126.00).   The court finds that the defendant's attempted compliance after April 16, 2010 did not correct the deficiencies noted in plaintiff's April 19, 2010 list. (# 137.00, Exhibit F.).   The court finds that the defendant is in violation of the two December 11, 2009 discovery requests as ordered by the Practice Book and by the three separate court orders.

Practice Book Section 25-31 incorporated the discovery sanction sections of the Practice Book for family matters.   Among the sanctions that may be imposed are:  “The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.”  P.B. § 13-14(b)(3) and “The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence.”   P.B. § 13-14(b)(4).   Due to the defendant's continuing failure to provide financial discovery both as to the filing of an updated financial affidavit and complete compliance with the two December 11, 2009 discovery requests, the court finds that sanctions in proportion to the violation must be imposed including two orders under P.B. § 13-14(b)(3) and (4) as to the defendant's income.   This court finds that three court sanctions have already been imposed:  January 19, 2010 for compliance, February 16, 2010 for compliance by a date certain and March 29, 2010 for compliance by a new date certain coupled with a per diem charge for failure of compliance beyond that new date certain.

On November 22, 2010 the court, Malone, J. appointed Attorney Jessica Esterkin as a Special Discovery Master.   The order further stated:  “She should meet with the parties by Dec. 3rd, 2010 to go through discovery issues.”   Attorney Esterkin attended the two court hearings presided over by the undersigned on December 10, 2010 and January 11, 2011.   Despite her efforts, the defendant failed to comply with the two December 11, 2009 requests for discovery.   The court finds that progressive sanctions have been imposed on the defendant.

ORDER

1. The court finds that the defendant is in violation of the two discovery requests dated December 11, 2009 (# 126.00) and these requests have been ordered by the court to be complied with.

2. The court hereby orders the defendant to comply completely, fully, accurately and timely with the two December 11, 2009 requests (# 126.00) by Wednesday, February 23, 2011 at 4:00 p.m. at the office of the plaintiff's counsel of record.

3. The court hereby assigns this instant Motion for Contempt Re:  Discovery Compliance dated November 4, 2010 (# 137.00) for a short calendar hearing on Monday, February 28, 2011 at 9:30 a.m. in Courtroom 3A, Superior Court, 123 Hoyt Street, Stamford, Connecticut, 06905.   Both parties and their counsel shall be present.

4. The defendant is to pay the attorney fees and disbursements incurred by the Special Discovery Master, Attorney Jessica Esterkin, by Wednesday, February 23, 2011 at 4:00 p.m. Attorney Esterkin shall submit to the defendant's counsel with a copy to the plaintiff's counsel, a statement of fees and costs requested on or before February 1, 2011.   This statement shall not be filed with the court.   Any issues concerning the fees and costs of Attorney Jessica Esterkin and the payment of these fees and costs will be heard by the court on the February 28, 2011 hearing, including but not limited to whether the defendant paid these fees and costs to Attorney Esterkin by Wednesday, February 23, 2011 at 4:00 p.m.

5. On March 29, 2010 J. Malone ordered:  “If not provided $100.00 per diem to the moving party.”   The plaintiff is the moving party.   The discovery was due on April 16, 2010 as per Judge Malone's March 29, 2010 order.   As of January 11, 2011 the defendant had not complied with the discovery orders.   The court hereby continues J. Malone's order as an order of this court.

6. This court orders that the defendant pay to the plaintiff the sum of $27,000 for the 270 days from April 17, 2010 through and including January 11, 2011.   That $27,000 shall be delivered by Wednesday, February 2, 2011 at 4:00 p.m. at the office of the plaintiff's counsel of record by personal check, bank check, certified check or money order.   No cash or cash equivalent shall be delivered.

7. If said payment of $27,000 is not so delivered, by Wednesday, February 2, 2011 at 4:00 p.m. the plaintiff may file the appropriate motion and request further sanctions.   Those further motions and/or requests are also assigned for a hearing on Monday, February 28, 2011 at 9:30 a.m. in Courtroom 3A, Superior Court, 123 Hoyt Street, Stamford, Connecticut, 06905.

8. The court finds that the last federal income tax return filed by the defendant prior to the commencement of this dissolution of marriage action was the 2007 Form 1040.  (Exhibit 1, January 11, 2011 hearing.)   The court notes that a portion of the W-2 income set forth in that income tax return was paid to the plaintiff, Michelle Martucci, and the September 21, 2009 court order prevented the plaintiff from receiving any further employment remuneration from her former employer, Tucci.   Therefore all of the income sources set forth in that 2007 income tax return are now available to the defendant.  (Exhibit 1, January 11, 2011 hearing, $896,835 “total income.”)   In accordance with P.B. § 13-14(b)(3) the court finds that the plaintiff sought discovery as to the defendant's income.   Since the defendant has failed to provide such discovery so the plaintiff could more accurately determine his income, the court finds that an order in accordance with P.B. § 13-14(b)(3) is a measured appropriate sanction.

The court finds that the defendant's current annual income from his salary, wages, business profits, rents, royalties, partnerships, S corporations, etc. is established at $896,835.   Said $896,835 shall be used by this court and future courts as the defendant's current annual income for all purposes in this instant dissolution of marriage action.

9. In the event the defendant complies with the two December 11, 2009 discovery requests, the defendant shall be permitted to file a Motion with this court in order to modify and/or eliminate order # 8 that the defendant's current income for all purposes is established at $896,835 annually.

10. The defendant is prohibited from introducing any evidence regarding his income, earnings, and earning capacity for so long as order # 8 remains in effect pursuant to P.B. § 13-14(b)(4).

11. The plaintiff's request for attorney fees will be considered at the February 28, 2011 hearing.

12. The court will determine at the February 28, 2011 hearing if the defendant should be found in contempt.

13. The court retains jurisdiction for further discovery sanctions pursuant to this November 4, 2010 Motion for Contempt Re:  Discovery Compliance (# 137.00).

14. This court has entered sanctions pursuant to P.B. § 13-14(b)(3) and P.B. § 13-14(b)(4) solely as to the defendant's current annual income.   The court reserves the right to enter further sanctions as to any other financial or factual issues including but not limited to assets, liabilities income and expenses.

BY THE COURT

Hon. Kevin Tierney, J.T.R.

Tierney, Kevin, J.T.R.