Brian Yomtov v. Sally Yomtov (2013)

MEMORANDUM OF DECISION

The plaintiff-appellant filed a notice, in accordance with Practice Book § 64–1(b), indicating that this court has not filed a memorandum of decision in relation to the denial of the plaintiff's motions for sanctions and mistrial.   In response, this court sent counsel of record a notice indicating that said motions were denied on the grounds that they were pendente lite and came within the exception set forth in § 64–2(a) of the Practice Book. Upon retrospect, after reviewing the file, it is apparent that this notice was erroneously dispatched as the underlying matters are postjudgment in nature.   In response to the Appellate Court's May 22, 2013 order, indicating that this court has not filed a memorandum of decision pursuant to Practice Book § 64–1(a)(6), the following constitutes the court's memorandum of decision.   Before the court proceeds, however, it should be noted at the onset that the court read the parties' post-trial briefs but did not afford any weight to either briefs in rendering its decision.

Now the court directs its attention to its memorandum of decision.   While the plaintiff-appellant claims that the defendant-appellee's post-trial brief includes several factual assertions not offered in evidence during the hearing on the defendant's motion for order and, as a result, detrimentally impacted his right to a fair trial, the court reiterates that neither brief was used as a basis for the court's February 1, 2013 memorandum of decision.   Further, the court is well aware that, as a general rule, statements by counsel not under oath, are not evidence.

“Our Supreme Court and this court have repeatedly held that representations of counsel are not evidence.”  Irizarry v. Irizarry, 90 Conn.App. 340, 345, 876 A.2d 593 (2005);  see also Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985) (counsel's representations “ ‘are not evidence’ and certainly are not ‘proof’ ”).

With respect to the plaintiff-appellant's motion for mistrial and motion for sanctions, the court will address the main thrusts of the plaintiff-appellant's arguments in his motion for mistrial exclusively as the factual basis for his motion for sanctions is essentially identical to and predicated on the allegations contained in his motion for mistrial.   However, it should be noted that this court denied the plaintiff-appellant's motion for sanctions because the court did not find the representations made by the defendant-appellee were made in bad faith under the circumstances.   In his motion for mistrial, the plaintiff-appellant alludes to the defendant-appellee's failure to submit her brief “with transcript references.”   Because the words within the parenthesis are highlighted in bold, the court assumes the plaintiff-appellant is placing some emphasis on this omission or is treating it as substantive and relevant to the issue at bar and will, therefore respond to the same accordingly.

“The trial court has wide discretion in deciding a motion for mistrial.   Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990).   The denial of a motion for mistrial will be reversed only if the trial court abused its discretion by denying the motion.  Id. “While the remedy of a mistrial is permitted under the rules of practice, it is not favored.  [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that is apparent to the court that because of it a party cannot have a fair trial ․ and the whole proceedings are vitiated ․ If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided ․ On appeal, we hesitate to disturb a decision not to declare a mistrial.   The trial judge is the arbiter of the many circumstances which may arise during the trial in which his [or her] function is to assure a fair and just outcome ․ The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the [appellant] and, if so, what remedy is necessary to cure that prejudice.”   (Internal quotation marks omitted.)  State v. Gary, 273 Conn. 393, 413, 869 A.2d 1236 (2005).  “In reviewing a claim of abuse of discretion, we have stated that [d]iscretion means legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice ․ In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors ․ Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.”   (Citations omitted;  internal quotation marked omitted.)  Id., at 416, 857 A.2d 808.

While the court did indeed require the parties to submit post-trial briefs to the court and exchange said briefs simultaneously with each other as the transcript accurately reflects, the plaintiff-appellant had not demonstrated how the defendant-appellee's failure to incorporate transcript references prejudiced his right to a fair trial or tainted the entire proceedings.   The transcript references requested by the court were simply for ease of convenience for the court's use in non-substantive, non-material, non-evidentiary fashion.   The plaintiff-appellant did not offer any proof to substantiate that the omission by the defendant-appellee in completely and absolutely adhering to such an order in the strictest sense caused him harm or prejudice to such an extent that his right to a fair trial was vitiated or that the whole proceedings were tainted.

Next the court turns to the second basis for the plaintiff-appellant's motion for mistrial in which he makes several claims.   The plaintiff-appellant contends that the defendant-appellee repeatedly makes references in her brief to the following facts not evidence:  a) that the definition of gross annual income from employment was carefully drafted by the plaintiff's counsel and not subsequently changed by the defendant's counsel b) asserting in a footnote that the defendant-appellant would have testified to such facts were she to have taken the witness stand again c) raising defendant-appellee's purported concerns about the plaintiff-appellant's unreported or misreported income and d) suggesting that the plaintiff-appellant's support payments go toward extracurricular activities for the parties' children.   The court will respond to each of these contentions individually.

The legal basis upon which the court's February 1, 2013 decision rested squarely on a certain aspect of the law of contract construction inasmuch as the crux of the controversy between the parties involved the interpretation of a defined term in the parties' separation agreement.   The parties were at odds about whether the agreement's definition of the term “gross annual income from employment,” as set forth in section 3.2 of the parties' separation agreement, was clear or was ambiguous as it related to the plaintiff-appellant's obligation to pay the defendant-appellee alimony and child support pursuant to section 3.1 of said agreement.   At the hearing on the underlying dispute, the parties' neutral accountant auditor, testified that he was confused at the beginning of his engagement about whether customary business expenses should be deducted from the plaintiff-appellant's “gross annual income from employment” because he did not see any language in section 3.2 that allowed for said deductions to be taken.   Despite his communication with the plaintiff-appellant and the defendant-appellee's previous counsel, the neutral accountant auditor testified that he remained confused at the conclusion of the hearing.

Once the court reviewed the credible and relevant evidence, and found that the definition of “gross annual income from employment” under section 3.2 of the separation agreement to be clear and unambiguous, there was no need to ever consider which counsel, either counsel for the plaintiff-appellant or defendant-appellee, drafted the separation agreement.

“Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact ․ [w]here there is definitive contract language, the determination of what the parties intended by their contractual communications is a question of law ․ In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together ․ The contract must be construed to give effect to the intent of the contracting parties ․ This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained ․ [I]n ․ is to be ascertained ․ by a fair and reasonable construction of the written words and ․ language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ [Where] ․ there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law.”  (Citations omitted;  internal quotation marks omitted.)  Schwartz v. Family Dental Group, P.C., 106 Conn.App. 765, 771, 943 A.2d 1122, cert. denied, 288 Conn. 911, 954 A.2d 184 (2008).

“When there is ambiguity, [the court] must construe contractual terms against the drafter.”  (Internal quotation marks omitted.)  Cameron v. Avonridge, Inc., 3 Conn.App. 230, 233, 486 A.2d 661 (1985).

Thus, in deciding that the expressed terms of section 3.2 of the agreement were unambiguous, the court never reached the issue of draftsmanship or drew any positive or negative inference therefrom.   Consequently, the plaintiff-appellant's objection to the defendant-appellee's statement to such effect in her post-trial brief was of no moment.

Another one of the plaintiff-appellant's claims is that he was harmed when counsel for the defendant-appellee stated in a footnote in her post-trial brief that the defendant-appellee “would have testified to these facts as part of the intent and understanding of the parties to this Agreement.”   Once again, in restating the previously mentioned rule, the court will simply reiterate that representations made by counsel are not evidence.   The plaintiff-appellant also raises a claim of prejudice because defendant-appellee mentioned her concerns about the supposed unreporting or misreporting of income by the plaintiff-appellant.   During the hearing on defendant-appellee's motion for order, the court twice sustained the plaintiff-appellant's objection on the grounds of relevance.   Again, this court was presented with a narrow question that turned on the court's interpretation of one particular section of the parties' separation agreement while reading said agreement in the larger context as an integrated whole.   Whether the plaintiff-appellant underreported or misreported income was immaterial to the issue presented to the court for review and was of no consequence.   Likewise, the matter of extracurricular activities was wholly immaterial to the defendant's motion for order relative to the question of whether the definition of term “gross annual income from employment” allowed the plaintiff-appellant to deduct business deductions from said income in relation to his support obligations to the defendant-appellee and, thus, making the plaintiff-appellant's claim of prejudice inconsequential.

For the foregoing reasons, this court denied the plaintiff-appellant's motions.

BY THE COURT,

SYBIL V. RICHARDS, JUDGE

Richards, Sybil V., J.