Brody v. Brody, 34183.

145 Conn.App. 654

77 A.3d 156

Felicia Pierot BRODY

v.Cary BRODY.

No. 34183.

Appellate Court of Connecticut.

Argued May 16, 2013.

Decided Sept. 10, 2013.

M. Caitlin S. Anderson, with whom, on the brief, was Steven D. Ecker, Hartford, for the appellant (defendant).

Gary I. Cohen, Greenwich, for the appellee (plaintiff).

GRUENDEL, BEACH and SULLIVAN, Js.

GRUENDEL, J.

The defendant, Cary Brody, appeals from two of the trial court's judgments granting the motions filed by the plaintiff, Felicia Pierot Brody, for contempt for his failure to comply with support and propertydistribution orders, and from an order of compliance issued by the trial court. ¹ Specifically, the defendant claims that (1) on December 9, 2011, the court improperly found him in contempt because it erroneously found that his noncompliance with the court's support and property distribution orders entered in connection with the parties' marital dissolution was wilful; (2) on March 5, 2012, the court failed to make the necessary finding of wilfulness to support its judgment of contempt; and (3) his appeal of the court's March 12, 2012 order of compliance should be dismissed as moot. We reverse the March 5, 2012 judgment of contempt and affirm the judgments in all other respects.

The following facts, as set forth by this court in a prior appeal, are relevant to the resolution of the defendant's appeal. “The parties met in 1997 and started dating shortly thereafter. The plaintiff was a securities trader and was engaged in the business of ‘flipping’ initial public offerings of securities. The defendant had worked for two different hedge funds, and, in 1998, he started his own hedge fund, named Colonial Fund, LLC (fund)....

“In April, 2000, the parties decided to marry. The parties negotiated and signed a prenuptial agreement, under which they retained their separate assets as disclosed on financial statements that were attached to the prenuptial agreement. At the time of their marriage, the defendant's net worth was approximately $46 million and the plaintiff's net worth was approximately $29 million. On April 29, 2000, the parties were married in Provence, France....

“In 2002, the parties ... jointly purchased a home on Husted Lane in Greenwich (Husted Lane property) for $5,950,000. Their first child was born in September, 2002. The defendant expressed to the plaintiff that he did not want her to be employed because, as the president of his company, it ‘did not look good’ for her to be so employed. Furthermore, the defendant stated that he did not want the plaintiff's employees walking through the parties' home and that it was ‘no longer an option’ for the plaintiff to continue working. Accordingly, the parties agreed that the plaintiff would close her business and focus on raising the children and maintaining the household and that the defendant would pay the family's expenses....

“After acquiring the Husted Lane property, the defendant voluntarily funded essentially all of the household's common expenses. The parties enjoyed a comfortable lifestyle fueled by the defendant's successes at work, and they had a second child....

“During this time, however, the parties began discussing what the plaintiff perceived as the excessive spending of the defendant. Between 2005 and 2008, the plaintiff expressed to the defendant her unhappiness with his purchases of two airplanes, a wine cellar costing in excess of $100,000 and Ferrari automobiles. The defendant was drinking alcoholic beverages more than he had earlier in the marriage, and he was becoming verbally abusive of the plaintiff. From 2007 to 2008, the defendant continued to be verbally abusive of the plaintiff and started to become aggressive sexually with her. The plaintiff made it clear to the defendant that she was unhappy with his behavior, but the defendant was unreceptive to her concerns.

“Unknown to the plaintiff, the defendant's income had started to decline in 2005. In 2007, the defendant's partner in the fund called the plaintiff to inform her of significant losses in the fund and of hidden trades engaged in by the defendant. In October, 2007, the plaintiff learned, when it was announced publicly, that the Securities and Exchange Commission was prosecuting the fund and the defendant personally. The defendant had been aware of this investigation since July, 2003, but he had not told the plaintiff about it. The defendant assured the plaintiff that she did not have to worry, and the plaintiff continued to support the defendant. In May, 2008, the defendant accepted delivery of a new Ferrari.” (Footnote omitted.) Brody v. Brody, 136 Conn.App. 773, 776–78, 51 A.3d 1121, cert. granted in part, 307 Conn. 910, 53 A.3d 998 (2012).

“The defendant was served with divorce papers on July 1, 2008.... [After a trial], [i]n a memorandum of decision issued March 12, 2010, the court, Munro, J., ordered, among other things, the dissolution of the parties' marriage. In connection with the dissolution judgment, the court ordered the defendant to pay the plaintiff $2,500,000 in lump sum alimony, to be paid as follows: $1 million on or before June 1, 2010, $1 million on or before June 1, 2011, and $500,000 on or before June 1, 2012.” (Footnote omitted.) Id., at 779, 51 A.3d 1121. The court also ordered, inter alia, that the defendant pay to the plaintiff child support of $7500 per month, $15,000 in health care expenses, and $250,000 representing the plaintiff's share of the proceeds from a joint loan made to a third party (Lewis loan) and certain of the plaintiff's attorney's fees.

“On July 7, 2009, the [Securities and Exchange Commission (commission) had] obtained a judgment in the amount of $1,330,054.32 against the defendant in New York federal district court. See Securities & Exchange Commission v. Colonial Investment Management, LLC, 659 F.Supp.2d 467, 503 (S.D.N.Y.2009), aff'd, 381 Fed.Appx. 27 (2d Cir.2010). This judgment was disclosed to the court during the dissolution proceeding. On September 3, 2010, the court, Malone, J., granted the plaintiff's postjudgment motion for an ex parte restraining order. The order provided in relevant part: ‘That the [d]efendant is enjoined and restrained from spending, giving away, dissipating, pledging or in any other way, impairing his interest in any asset disclosed on his September 2, 2010 financial affidavit, including, but not being limited to, interests in investment accounts ... private placement partnerships, jewelry, wine, or other personal property or any other asset whatsoever, unless the [d]efendant first secures the permission of the [p]laintiff or an order of the court permitting him to invade or dispose of an interest in any such asset.’

“On October 12, 2010, the plaintiff filed a postjudgment motion for contempt. The motion alleged that, in response to the judgment in favor of the commission, the defendant transferred approximately $250,000 from his personal account in the fund to an account for Colonial Investment Management, LLC. After a hearing, the court, Munro, J., granted the motion for contempt in a written order issued November 29, 2010. The order stated in relevant part: ‘[T]he court finds that the defendant violated the restraining order by transferring funds to facilitate the payment of his court ordered obligation to the ... [c]ommission pursuant to a judgment entered against him. The defendant argues that his conduct was not contemptuous. Indeed it was. The defendant was subject to a clear and unambiguous order that he could comply with by doing nothing. Instead he made a transfer to facilitate the payment of a creditor he deemed more of a priority than the plaintiff. While one could argue it was a [Hobson's] choice that the defendant faced, it was still in clear and wilful violation of the injunctive order issued by Judge Malone. Whichever burden of proof is applied, the plaintiff has satisfied it: by clear and convincing evidence this contempt is proven.’ ” Brody v. Brody, supra, 136 Conn.App. at 797–98, 51 A.3d 1121.

“As a remedial measure for its November 29, 2010 finding of contempt, the court provided: ‘The plaintiff is entitled to a reasonable attorney's fee for prosecuting this motion and shall submit an affidavit for the same within [twenty-one] days. Within [twenty-one] days, the defendant shall inventory all of the watches and all of the wine at his residence, or in his possession or control, and turn over the inventory to the plaintiff. The defendant shall cause all of the same to be delivered to such location as the plaintiff designates at his cost for her to safe keep [pending] appeal; said sum shall be held as security for sums due her under the court's decision until further order of the court.’

“In [another] postjudgment motion for contempt dated January 27, 2011, the plaintiff alleged that, while retrieving the parties' children from the defendant's home, she observed that the defendant was wearing a gold A. Lange & Sohne watch. The plaintiff's motion asserted that the defendant previously had testified, in connection with the court's November 29, 2010 finding of contempt ordering him to turn over his watches to a third party custodian, that he no longer had possession of this watch. The plaintiff maintained that the court should find the defendant in contempt for his failure to deliver this watch to the custodian designated by the plaintiff. After a hearing on this motion, the court, Wenzel, J., found the defendant in contempt in an order issued April 28, 2011.” Id., at 800–801, 51 A.3d 1121. The defendant appealed from the dissolution judgment and these findings of contempt, which this court affirmed.²Id., at 776, 51 A.3d 1121.

On December 9, 2011, the court, Munro, J., found the defendant in contempt for failure to pay by the established due dates (1) the first two lump sum payments of alimony totaling $2 million, (2) $15,000 in health care expenses, and (3) $175,000 of the proceeds from the Lewis loan....