Cunniffe v. Cunniffe

150 Conn.App. 419

91 A.3d 497

Susan CUNNIFFE

v.Mark Charles CUNNIFFE.

No. 34940.

Appellate Court of Connecticut.

Argued Nov. 15, 2013.

Decided May 27, 2014.

David V. DeRosa, with whom was Paul Greenan, for the appellant (plaintiff).

Karen L. Dowd, with whom were Brendon P. Levesque, Hartford, and, on the brief, Melissa J. Needle, for the appellee (defendant).

BEACH, SHELDON and KELLER, Js.

KELLER, J.

In this amended appeal, the plaintiff, Susan Cunniffe, appeals following the judgment of the trial court dissolving her marriage to the defendant, Mark Charles Cunniffe.¹ The plaintiff claims that the court improperly (1) allowed dissolution proceedings to advance in violation of an appellate stay, (2) failed to hold the defendant in contempt for violating a discovery order, and (3) granted a motion for a protective order that prevented the plaintiff from obtaining copies of relevant financial records. We disagree and affirm the judgment of the trial court.

The following facts, which either were found by the court or are undisputed in the record, and procedural history are germane to our resolution of the plaintiff's claims. The plaintiff and the defendant married in 2002. During the marriage, the plaintiff was employed in a variety of positions with small investment management firms, earning as much as $70,000 annually. The defendant was employed in companies owned by his father, Maurice Cunniffe, who has significant personal wealth and real estate holdings. The defendant's reported annual earnings during the marriage never exceeded $25,000.

In October, 2009, the plaintiff commenced this action to dissolve the parties' marriage.² For more than two and one-half years, the parties engaged in extensive and heated litigation. Throughout the dissolution proceedings, the plaintiff asserted her belief that the defendant and his father have conspired to hide millions of dollars in marital assets in various family trusts.

In October, 2010, the plaintiff filed a motion to compel discovery in which she asked the court to order the defendant to sign an Internal Revenue Service form 4506 release (IRS releases) for “each and every entity in which the defendant holds a financial interest,” thereby authorizing the IRS to release tax returns for those entities directly to the plaintiff. The plaintiff argued in her motion that she needed the tax returns because the defendant allegedly had failed to disclose fully all of his financial interests with respect to a number of trusts created by the defendant's mother, Jane M. Cunniffe, prior to her death in 2008. In addition to seeking the IRS releases for six trusts specifically identified in the motion to compel, the plaintiff also sought releases covering the federal and state tax returns of the mother's estate.

The plaintiff's motion to compel was heard by the court, Malone, J., on November 8, 2010, along with the plaintiff's motion for an award of pendente lite alimony.³ With respect to the motion to compel, the court indicated on the record that it was uncertain whether the defendant was authorized to sign all of the IRS releases sought by the plaintiff. Without deciding that particular issue, the court instructed the plaintiff to obtain whatever IRS releases that she believed were appropriate for the defendant's signature and to provide those forms to the defendant's counsel; counsel was instructed “to provide them to [the defendant] for signing.” ⁴

On February 2, 2012, the plaintiff filed a motion for contempt, in which she argued that the defendant's counsel and/or the defendant had refused to comply with the court's November 8, 2010 orders with respect to the IRS releases. On May 7, 2012, the parties appeared before the court, Emons, J., for a hearing on the motion for contempt.⁵ The defendant was not present. See footnote 3 of this opinion. The defendant's counsel suggested that the court mark the motion over until May 17, 2012, when the parties were scheduled to appear for a hearing on discovery related matters. The defendant's counsel also explained that the defendant already had signed an IRS release with respect to his personal tax returns, but that he could not sign the releases for the various trusts because the IRS releases contained instructions that they could be signed only by a person authorized to receive the tax returns, and he was not so authorized.

The plaintiff did not object to the court continuing the motion for contempt to the following week, but indicated that the defendant's attendance would be necessary for the court properly to make a finding of wilfulness. The court decided that although it was necessary to resolve the continuing dispute over the production of the IRS releases prior to trial, the contempt aspect of the motion—namely, whether the defendant was in wilful violation of an existing court order—could be bifurcated from the discovery dispute. It ordered that it would take up the discovery aspect of the motion when it heard the parties' other outstanding discovery issues at the May 17, 2012 hearing, but that the contempt issue could be heard later as part of the upcoming dissolution trial. The plaintiff filed an appeal, AC 34588, on May 16, 2012, challenging the court's ruling continuing to a later date its consideration of the motion for contempt.

On May 17, 2012, the parties appeared as scheduled before Judge Emons, who heard arguments from the parties on a multitude of discovery related motions. At the beginning of that hearing, the plaintiff notified the court that she had filed an appeal from what the plaintiff characterized as the court's refusal to hear her motion for contempt. The court observed that it had not denied the plaintiff the ability to present her motion, but, rather, had only postponed a final hearing as to the contempt issue until trial. When the plaintiff suggested that the current hearing regarding discovery matters could not go forward because an appellate stay of execution was in effect, the court stated that it was lifting any such stay.

The discovery motions included several motions for a protective order filed by third party witnesses, including the defendant's father and brother.⁶ The defendant's father and brother sought protective orders limiting their obligations to produce personal financial documents that the plaintiff had subpoenaed for production at their depositions, including copies of the disputed family trusts. The parties also eventually returned to the issue of the IRS releases. The defendant again suggested that he was in compliance with Judge Malone's order because he had provided the plaintiff with a release for everything that he was authorized to release. The plaintiff argued that she still needed releases for the tax returns of the various trusts in which she maintained the defendant had a beneficiary interest. In resolving the various motions for a protective order and the issue of the IRS releases, the court assured the plaintiff that it intended to order production of all documents pertaining to anything in which the defendant had a financial interest, but that it would not require the disclosure of financial documents or the signing of releases for anything unrelated to some identified interest of the defendant. To that end, the court indicated that it would conduct an in camera review of all contested trust documents to determine whether they pertained in any way to a financial interest of the defendant, whether the trust or other related financial documents should be disclosed to the plaintiff, and whether the plaintiff was entitled to additional IRS releases. The plaintiff later amended AC 34588 to include a challenge to several of the court's May 17, 2012 discovery orders.⁷ The plaintiff also filed a motion with this court for review of the trial court's ruling with respect to any appellate stay that might have been in effect as a result of the filing of AC 34588. At a status conference on June 6, 2012, the trial court reiterated its intent to conduct an in camera review of documents in order to resolve the parties' continuing dispute over the disclosure of trust documents and IRS releases. The plaintiff never objected to the proposed in camera review procedure, either at the May 17, 2012 hearing or the June 6, 2012 status conference, nor did she raise it as an issue in her amended appeal.

Judge Emons conducted an in camera review of the disputed documents, which were provided to her by the parties and by the third party witnesses. ⁸ At a subsequent hearing on June 28, 2012, the court identified on the record the documents that it had reviewed, ultimately ruling on the basis of that review that it had not found anything pointing to the existence of a divisible asset for the purposes of marital dissolution. The court stated: “My order is that I am not going to order any IRS authorizations for any of these documents, and I am not going to order that [the plaintiff] be given a copy of any of those documents. I'll state it again that you have in your possession copies of four of those documents—unsigned on a couple of occasions.

“The reason for my ruling is that ... I have had the opportunity to carefully review all of the documents and that even though [the defendant's] name appears in some of those documents, it appears to this court that he does not have a present interest in anything from any of these documents. All of his interests, if they become real at all, are purely speculative, totally contingent. It is clear that he does not have a present interest in anything with any of these documents. So that is my ruling.” On July 2, 2012, the plaintiff filed her second amended appeal in AC 34588 from the court's June 28, 2012 orders.

The dissolution trial commenced on July 23, 2012, before the court, Adelman, J. The court began by addressing a few preliminary matters. First, it addressed a notice of automatic stay filed by the plaintiff on July 17, 2012. The plaintiff...