Robert Rousseau v. Madeleine Perricone (2011)

MEMORANDUM OF DECISION

I

MOTION TO QUASH

On March 11, 2011, the plaintiff filed motion No. 135 to quash the deposition of a non-party witness.   The notice of deposition was directed to the headmaster of the Renbrook School, where the plaintiff's children are enrolled as students, but who are not issue of this marriage.   He claims the deposition is in contravention of the scope of discovery permitted under Practice Book § 13–5 in that the deposition is for the purpose of embarrassing and annoying school personnel and, thereby, his children who normally feel safe and protected from this high conflict dissolution.

During a hearing before the court on April 20, 2011, the plaintiff testified that he is committed to the philanthropic assistance of both public and private schools and that, in addition to tuition payments, he has donated substantial funds to the Renbrook School.   He further testified that the defendant expressed her desire to depose Renbrook officials in retaliation for noticing a deposition of her paramour.   In his testimony, he claims the defendant was specifically interested in the money he was donating to the school.

In response, the defendant points to the plaintiff's unfiled financial affidavit, which shows substantial assets of over $19,000,000;  however, no gross income, and yet the plaintiff admits he has donated many thousands of dollars to the Renbrook School, among others.   Although the plaintiff has agreed to provide his financial records as a part of discovery, she seeks verification of these and other payments to the school.   The defendant also claims she has reason to believe the plaintiff has made payments to the Renbrook School on behalf of other individuals.   She further claims she has reason to believe that payments have been made to the school by at least one individual with whom the plaintiff does business, who has no direct association with the school other than through the plaintiff.   More importantly, the defendant claims that some or all of these donations may have come from financial resources she has provided to the family.

“Practice Book 13–5 permits a court, for good cause shown, to make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense ․ Such orders may provide that discovery be had only on specified terms and conditions, that discovery be conducted with no one present except persons designated by the judicial authority, and that a deposition after being sealed be opened only by order of the judicial authority.   Good cause has been defined as “a sound basis or legitimate need to take judicial action ․ Good cause must be based upon a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements ․” (Citations omitted;  internal quotation marks omitted.  Welch v. Welch, 48 Conn.Sup. 19, 20, 828 A.2d 707 (2003) [34 Conn. L. Rptr. 171].   Further, the party seeking to bar a deposition bears the burden of showing that there is good cause why the protective order should be issued.   See Practice Book § 13–5;  Babcock v. Bridgeport Hospital, 251 Conn. 790, 848–49, 742 A.2d 322 (1999).

Although the plaintiff seeks to quash the deposition in its entirety, Practice Book § 13–5 provides for more nuanced protection from limitless inquiry into matters which are either confidential or serve no legitimate purpose aimed at the discovery of relevant evidence.   In determining whether to grant a motion for protective order, “[t]he extent of discovery and use of protective orders is clearly within the discretion of the trial judge.”   Verderame Sr. v. Pryor, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 99–0496040 (January 24, 2001, Kocay, J.).   Although “[t]he granting or denial of a discovery request rests in the sound discretion of the court ․ that discretion is limited ․ by the provisions of the rules pertaining to discovery ․ especially the mandatory provision that discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57–59, 459 A.2d 503 (1983).   See Pavlo v. Slattery, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 03–0083541 (Feb. 20, 2004, Bear, J.) [36 Conn. L. Rptr. 557].

Based upon the facts of this case and applicable law, the court finds good cause has been shown by the plaintiff to limit the scope of the deposition noticed by the defendant in this case by granting the motion to quash in part and by issuing the following protective order:

The defendant's notice of deposition and any associated subpoena may be directed to Dr. Armistad Webster, who may designate, in lieu of himself, any appropriate school official who has direct knowledge of financial matters regarding the Renbrook School, including revenue received by any fund associated with the school.   The questions posed to any such school official shall be limited to funds received from or on behalf of the plaintiff, Mr. Robert Rousseau.   The deposition may include questions concerning other funds received from the plaintiff's known business associates, so long as they are specifically identified by the defendant at least seven (7) days in advance of the deposition.   The inquiry into such matters at the deposition may include questions regarding the purpose to which funds were directed by the donor or applied by the school, such as for tuition, the annual fund or other purpose specified by the donor.

At the hearing, the defendant further claimed an interest in deposing other school personnel regarding the plaintiff's relationship with officials at the school, including reasons he may have invited members of the staff to tour his cosmetics business facility.   The court finds there was no reasonable foundation shown that this particular line of inquiry would lead to the discovery of relevant evidence.

The court further orders that neither the notice of deposition nor the deposition itself be disclosed by either party to the plaintiff's children.   It is further ordered that the deposition shall occur at a time and location at which the plaintiff's children shall not reasonably be expected to be present.

II

ALLOCATION OF DEBT

On March 23, 2011, the plaintiff filed a motion for the allocation of debt, No. 138.   With regard to this motion, the parties do not contest the following relevant facts:  The plaintiff seeks to accelerate his repayment of a $750,000 loan in the defendant's name, which is secured by her home, the title to which is also exclusively held in her name.   This loan was taken by the defendant in the form of a home equity line of credit at the annual interest rate of 5.5% and the proceeds of the loan were transferred to the plaintiff for his use.   The loan is current and, while it is being repaid by the plaintiff, the defendant appears to have the use of the interest deduction for income tax purposes, although no documentary evidence was presented in support of this conclusion.

This motion arises under unusual facts.   Instead of avoiding the repayment of a liability owed by a spouse, the plaintiff desires to accelerate the repayment of the debt immediately, to which the defendant objects.   The plaintiff claims that he seeks to accelerate the repayment of this loan because he is able to secure more favorable terms on substituted collateral.   The defendant counters that the court lacks jurisdiction to allocate debt, pendente lite, because it is a part of the marital estate of the parties, allocable only at the time of judgment pursuant to General Statutes § 46b–81.¹  The court disagrees, as there is no such statutory prohibition.

“While there is no express provision in General Statutes § 46b–81 authorizing a court to order that sole liability for the debts of the parties be imposed upon one of the parties, § 46b–81 confers broad powers upon the court in the assignment of property.   It provides, in part, that the court ‘may assign to either the husband or wife all or any part of the estate of the other.’   Among the factors to be considered in any order entered under § 46b–81 are the ‘estate, liabilities and needs of each of the parties.’   “ Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).

“[The Supreme Court has] repeatedly held that the trial court, in a dissolution action, has wide discretion in the type and amount of alimony to be awarded;  ․ and property to be transferred ․ Such judicial discretion, however, is always a legal discretion exercised according to the recognized principles of equity ․” Id., 191–92 (1980);  see Simms v. Simms, 927 A.2d 894, 902, 283 Conn. 494 (2007).

Although the allocation of debt by the Superior Court is not specifically authorized by General Statute § 46b–81 at the time of judgment, it has been interpreted by our courts to be included in the marital estate, so that liabilities may be allocated along with assets at the time of dissolution.   To hold otherwise would lead to an incomplete and potentially inequitable allocation of the marital estate.   The defendant asserts that because marital liabilities are included by interpretation into the marital estate for purposes of the equitable distribution of property at the time of judgment, the court should be prohibited from allocating liabilities, pendente lite, as it is prohibited regarding property.   The court disagrees, especially under the facts of this case.

As to the threshold issue of jurisdiction, the court finds there is no statutory prohibition on the allocation of liability, pendente lite.   Further, the effect of a prejudgment allocation of debt on the marital estate may be taken into consideration by the trial court at the time of judgment, at which time the allocation of assets may properly be considered by the court.   Similarly, the effect of the allocation of a liability on income may be taken into account in an order of alimony, pendente lite, to preserve the status quo.

The court finds that there is an appropriate purpose for the repayment of this debt.   The loan is not being repaid, for example, for the purpose of repaying a preferred creditor from limited marital resources.   Instead, the purpose of this acceleration of the repayment of this debt is to reduce an interest payment.   In addition, this liability of $750,000 represents less than 4% of the plaintiff's reported assets of $19,000,000 and, therefore, significant assets appear to be available to the plaintiff to apply to this debt.   Although this may collaterally result in the defendant's loss of an interest deduction, the underlying debt is owed by the plaintiff who seeks to reduce his costs and to, perhaps, claim a deduction for himself for his own payments.

Under the facts of this case as set forth at the hearing, the court finds this to be an equitable and appropriate purpose.   The plaintiff's motion is therefore granted, provided he complies with the following conditions at least seven (7) days in advance, unless otherwise agreed to the parties.   The plaintiff is required to disclose any collateral substituted as security for a loan to repay this $750,000 debt to the defendant.   He shall also disclose the terms and conditions of any such loan, which must be more favorable than the terms and conditions of the existing loan secured by the defendant's home.

Further, regardless of his obtaining any loan to repay this debt, the plaintiff shall disclose the source of any funds used to repay this debt to the defendant or any loan substituted therefore.

SO ORDERED.

BY THE COURT

Mark H. Taylor, J.

FOOTNOTES

FN1. General Statute § 46b–81 provides:  “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b–45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other.   The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. (b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52–500.   When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties. (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”  (Emphasis added.).  FN1. General Statute § 46b–81 provides:  “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b–45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other.   The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. (b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52–500.   When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties. (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”  (Emphasis added.)

Taylor, Mark H., J.