Opinion
No. FST FA 05-4007079 S
April 20, 2007
This court has been confronted with an egregious and continuous violation of the Rules of Procedure by the defendant who insists on proceeding in a pro se capacity in a contested dissolution of marriage case involving significant assets. The defendant refuses to file a financial affidavit in conformity to the requirements. The court makes the following findings of facts and legal conclusions:
The plaintiff commenced this action seeking a dissolution of marriage returnable to the Superior Court on October 25, 2005. The defendant was served by return of service on October 14, 2005. October 14, 2005 was the effective date of the automatic orders pursuant to Practice Book § 25-5 entered as against the defendant. The automatic orders in P.B. 25-5(a)(3) state: "The parties shall each complete and exchange sworn financial statements substantially in accordance with a form prescribed by the chief court administrator within thirty days of the return date." The defendant failed to comply with the automatic orders by submitting a financial affidavit. Practice Book § 25-30 requires the filing of financial affidavits in dissolution matters within a prescribed time and requires that: "Each party shall file, where applicable, a sworn statement substantially in accordance with a form prescribed by the chief court administrator, of current income, expenses, assets and liabilities." In accordance with the automatic orders and Practice Book § 25-30 the chief court administrator has published on the Judicial Branch website, www.jud.state.ct.us in printable and internet usable form a financial affidavit form JD-FM-6 Rev. 5-06. This is similar to the former Practice Book Form 501.1 and JD-FM-6 Rev. 2-04. Any of the three preprinted forms, filled out and signed under oath, satisfy the requirements of P.B. § 25-5(a)(3) and 25-30.
On November 1, 2005 the plaintiff served the defendant with a Request for Production of Documents, which required the defendant to file a financial affidavit. The defendant did not object to the Request for Production. No financial affidavit was filed by the defendant in compliance with the Request for Production. The plaintiff filed a Pendente Lite Motion to Compel dated January 4, 2006 (#107.10) requesting compliance with the November 1, 2005 Request for Production of Documents. After a duly assigned hearing the undersigned ordered that said motion be granted and ordered the defendant to comply by January 31, 2006.
The defendant filed a purported financial affidavit dated January 30, 2006. In that January 30, 2006 affidavit filed on Form JD-FM-6 Rev. 2-04 he reported weekly income as; "records not available." As to weekly expenses he reported: "records not available." As to the real property in Greenwich, Connecticut, he placed the value as: "do not know" without any equity value. As to real property in New York City, he stated that the value is: "do not know" without equity value. As to real property in Kalamazoo, Michigan, he stated that the value is: "do not know" without equity value. There were two motor vehicles reported with a value of: "do not know." Other personal property was described as: "do not have records." Stocks, bonds and mutual funds were described as: "do not have records" and no value was placed in that section of the financial affidavit. Insurance was described as: "do not have records." All other assets were described as: "do not have records." There was no summary figures placed on the second page of the purported financial affidavit and the total cash value of all assets was left blank.
The defendant filed a Motion for Modification dated January 28, 2006, (#111.00), which outlined reasons for not having certain records: two Bankruptcy Court cases pending in Bridgeport, CT and inability to obtain some records because of the difficulty created in moving his office in December of 2005 and January of 2006. The defendant attached a series of letters that he wrote to various financial institutions on January 26, 2006 requesting copies of credit card, bank brokerage, tax returns and other records for the period of January 1, 2001 through December 31, 2005. The defendant never prosecuted this Motion for Modification.
In response to the defendant's purported January 30, 2006 financial affidavit and his January 28, 2006 Motion for Modification, the plaintiff filed Plaintiff's Pendente Lite Motion to Compel and for Sanctions on February 13, 2006 (#114.00 and #115.00). This motion was first assigned for a hearing on May 15, 2006, continued to May 22, 2006 and finally heard before the undersigned on June 5, 2006. After a contested hearing in which both parties were heard the court entered the following order: "The defendant is to produce his financial affidavit by the date of the next hearing, June 13, 2006 or face a $1,000 fine. This fine will reoccur on each subsequent Monday that the financial affidavit has not been produced."
The day after that hearing the defendant filed a purported financial affidavit on Form JD-FM-6 Rev. 2-04 dated June 6, 2006. This form was not acknowledged. In this document the defendant was able to list his $6,831.00 expenses in considerable detail. The income from his principal employment was listed as: "none." His sources of income were social security at $435.00 per week and loan repayments listed at: "various sums." The Greenwich, Connecticut real property was valued between 7 to 10 million dollars without a mortgage for a total equity of 7 to 10 million dollars. The New York real property was valued at $700,000 less a $240,000 mortgage for a net equity of $460,000. The third parcel of real property was described as: "misc." which this court takes to be the Kalamazoo, Michigan. It was valued at "TBD" and equity was "TBD." This court determines "TBD" to mean "to be determined." The two automobiles were listed with the values and the equity at "TBD." Other personal property was stated: "no knowledge of value." Bank accounts had a value of "TBD." Stocks, bonds and mutual funds were noted as: "no records available." Insurance was described as: "no record available" and all other assets "TBD, when records are available." There was no number in the "Total Cash Value of Assets" section of the financial affidavit. The summary section on the second page did indicate that the "Total Cash Value of Assets" was "TBD."
On May 22, 2006 the plaintiff filed Plaintiff's Pendente Lite Motion to Compel Production of Financial Affidavit (#124.00). This motion was also granted by this court's June 5, 2006 order.
On June 6, 2006 the defendant filed a motion claiming a statutory exemption and an automatic stay pursuant to § 14-1 and 14-2 of the Practice Book (#127.00). The defendant failed to prosecute this motion.
In accordance with its June 5, 2006 order, this matter next came before this court on June 13, 2006. This court reviewed the two purported financial affidavits, already referenced, January 30, 2006 and June 6, 2006, and determined that neither complied with Form 501.1, the Request for Production of Documents, P.B. § 25-30, P.B. 25-5(a)(3) and the form approved by the chief court administrator. The court determined on June 13, 2006 that both failed to adequately list the defendant's income, expenses, assets and liabilities. The court then imposed the $1,000 per week sanction with the first payment due on Monday, June 20, 2006 and each Monday thereafter until a proper financial affidavit was filed. The defendant was ordered to file a proper financial affidavit immediately.
The defendant failed to file any further financial affidavits after June 13, 2006. Plaintiff's Pendente Lite Motion for Contempt and to Compel was filed on August 23, 2006 (#128.00 and #129.00). This motion was assigned for a hearing on September 18, 2006, continued to October 16, 2006 and finally continued to November 8, 2006, when both parties were heard. After hearing, this court issued a written Memorandum of Decision dated November 8, 2006 (#141.10). The court found: "That the defendant Peter Gould has failed to file a financial affidavit that complies with the Practice Book and the defendant is found in contempt. Sanctions against the defendant as ordered by the court on June 13, 2006 in the amount of $1,000 per week totaling $21,000 through and including November 7, 2006 shall be payable by the defendant immediately to the plaintiff." "The defendant shall immediately file a proper financial affidavit with the plaintiff and sanctions as ordered by the court of $1,000 per week on June 13, 2006 shall continue to accrue until the defendant files a proper financial affidavit." "The court reserves decision on the issue of plaintiff's request for counsel fees. The court assigns a status conference for November 20, 2006 on the issues of sanctions. The pretrial is scheduled for November 29, 2006 at 9:30 am. and the trial is scheduled for January 17, 18 and 19, 2007 at 9:30 a.m."
The defendant failed to comply with this order by either making the payments or filing a financial affidavit. The pretrial on November 29, 2006 was attended by the plaintiff. The defendant failed to attend. The trial commenced on January 17, 2007 as ordered by the November 8, 2006 Memorandum of Decision. On the first day of trial on January 17, 2007 a purported financial affidavit was filed by the defendant dated January 17, 2007. It was notarized. The defendant used the financial affidavit form JD-FM-6 Rev. 2-04. In that purported affidavit the defendant indicated that he's a businessman employed by Copac International, Inc. at 50 Morton Street, East Rutherford, NJ 07073. The prior two affidavits indicated that he was self-employed. The income reported consisted of social security, loan repayments of a various amount and other income of $200 per week. The defendant itemized his expenses but failed to total them. The real property in Greenwich, Connecticut was valued at "TBD" with zero mortgage and equity value: "TBD." The New York City real property was valued at $700,000 plus a $240,000 mortgage for equity of $460,00. The miscellaneous real property, which this court considers to be the Kalamazoo, Michigan real property, was valued at "TBD" with equity of "TBD." The two automobiles were valued at "TBD" with an equity of "TBD." The defendant's other personal property was valued at "TBD." His stocks, bonds and mutual funds were reported: "no records available" and had a value of "TBD." All other assets were stated as: "TBD when records are produced." There was no cash value of all assets. The summary section on the purported affidavit's second page indicates that his net weekly income was "varies" and his total cash value of assets was "TBD." He further indicated "Total Liabilities" of approximately $270,000 on the summary section but failed to indicate any liabilities in the first page on Section 3.
The plaintiff claims attorney fees sanctions but she failed to provide proof sufficient to satisfy Smith v. Snyder, 267 Conn. 456, 479 (2004); Ramin v. Ramin, 281 Conn. 324 (2007). The plaintiff did not seek the sanction of incarceration thus this court did not consider the factors of P.B. 25-63 and 25-64. No doubt the plaintiff believed the defendant would invoke his right to a continuance to obtain counsel under the Practice Book provisions, further delaying the resolution of the proceedings.
The trial convened on January 17, 2007 and has continued on the following dates, all with the defendant appearing pro se without a proper financial affidavit; January 18, 2007, February 18, 2007 and March 6, 2007. The next scheduled trial dates are May 2, 3 and 4, 2007.
This is a discovery violation issue. The court must apply the standards of Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 17-18 (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 . . . 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 parties to litigation have an obligation to furnish a full and complete disclosure of all financial matters to the court so the court and the parties can perform their respective duties. Monroe v. Monroe, 177 Conn. 173, 184 (1979). "This court has recognized the need for a full and fair disclose of information contained in a financial affidavit." Niles v. Niles, 9 Conn.App. 240, 251 (1986); Grayson v. Grayson, 4 Conn.App. 275, 286 (1985).
We do not condone the cavalier attitude of the plaintiff toward his obligation to file an accurate financial affidavit with the court. Nor do we condone the manner in which his attorney at that time prepared and filed the affidavits. This court has consistently recognized the need for a full and fair disclosure of information contained in a financial affidavit. Niles v. Niles, 9 Conn.App. 240, 251, 518 A.2d 132 (1986); Grayson v. Grayson, supra, 286. Furthermore it is fundamental that copies of such affidavits be exchanged by the parties. See Jackson v. Jackson, supra 188. We reiterate that the sworn financial statements of the parties under Practice Book § 463 have great significance in domestic disputes.
Gelinas v. Gelinas, 10 Conn.App. 167, 175 (1987).
The defendant claims that he cannot produce the financial affidavits because the two bankruptcy proceedings have sealed all his files and he has no access to any financial information. He states that he has applied to the Bankruptcy Court but has not received the necessary relief. The defendant has failed to produce any documents used to obtain these documents from the Bankruptcy Court. This dissolution file contains evidence that Mr. Gould's personal bankruptcy was resolved and a plan of distribution was entered discharging the bankruptcy stay. All assets have been transferred back to Mr. Gould in the bankruptcy proceedings. No satisfactory explanation was furnished by the defendant as to why the disposition of a bankruptcy case satisfactory to Mr. Gould prevents his completion of a financial affidavit.
Three pieces of real property are located in Greenwich, Connecticut, New York City, New York and Kalamazoo, Michigan. Public records are available for review. According to his June 6, 2006 financial affidavit, the defendant has a net worth in excess of $10,000,000. It defies belief that a multi-millionaire businessman who has survived bankruptcy and owns valuable real estate in three states, does not possess or have access to sufficient information to complete a financial affidavit. The defendant has continuously explained in his pleadings the financial affidavits filed and his testimony that he is prevented from filing a financial affidavit because somehow there are some legal restrictions on the possession of his property contained in some third-party storage area. The defendant has failed to sustain his burden of proof that he has insufficient information upon which he can file a more accurate and complete financial affidavit. This court cannot find any legal authority for the defendant's position and no legal authority has been furnished by the defendant.
The only legal authority that this court has been able to find in similar circumstances is Chico Marx: "Well, who you gonna believe, me or your own eyes." Duck Soup (1933), movie by Burke Kalmar and Harry Ruby.
This court finds that the defendant is in contempt of the previously mentioned orders of this court as well as the automatic orders by reason of his continued failure to file a financial affidavit in conformity with Connecticut law. The court finds that the three purported financial affidavits; January 30, 2006, June 6, 2006 and January 27, 2007, are inadequate and fail to comply with the automatic orders and the orders of this court. The court entered four separate orders and the defendant has failed to comply with each of these four separate orders.
The court therefore finds:
1) The defendant is in contempt;
2) The order of $1,000 per week, payable each Monday as a sanction for failure to file a financial affidavit, is continued until a financial affidavit is filed in form and content satisfactory to the undersigned;
3) The total arrears on the sanctions of June 13, 2006 from June 20, 2007 through and including Monday, March 5, 2007 are found to be $38,000;
4) Said sum of $38,000 is payable immediately;
5) The defendant is ordered to file a financial affidavit immediately with the original to the Clerk of the Court, a courtesy copy to the undersigned, delivered to the Judges' Secretaries and a copy served upon the plaintiff in accordance with the Rules of Procedure;
6) Since the presentation of this motion to the court the defendant has hired counsel who submitted a purported financial affidavit to the court at the short calendar hearing on April 9, 2007. That hearing has been continued to April 25, 2007 before the undersigned. This court will conduct a hearing on the issue of whether the defendant's April 9, 2007 filing satisfies the court orders as to the filing of a financial affidavit;
7) The orders 1 through 5 are effective immediately;
8) The court continues the plaintiff's pendente lite Motion to Compel and for Sanctions dated February 13, 2006 (#114.00 and #115.00) and plaintiff's pendente lite Motion for Contempt and to Compel dated August 23, 2006 (#128.00 and #129.00) to April 25, 2007 for further proceedings to determine if said April 9. 2007 filing is a financial affidavit and further sanctions, if need be;
9) The motions already scheduled for the April 25, 2007 hearing before the undersigned will proceed as scheduled.