Hall v. Hall

• Decision Date: 19 June 2018
• Docket Number: AC 38834
• Court: Connecticut Court of Appeals
• Parties: Hugh F. HALL v. Deborah HALL

182 Conn.App. 736

191 A.3d 182

Hugh F. HALL

v.Deborah HALL

AC 38834

Appellate Court of Connecticut.

Argued December 6, 2017

Officially released June 19, 2018

Barbara M. Schellenberg, Orange, with whom, on the brief, was Richard L. Albrecht, Bridgeport, for the appellant (plaintiff).

Lavine, Sheldon and Bear, Js.

LAVINE, J.

In this amended appeal, the plaintiff, Hugh F. Hall, appeals from the trial court's judgment of civil contempt rendered against him because he, in violation of an order of the court, unilaterally withdrew funds from a joint bank account and deposited them into his personal savings account, and because the parties placed the funds in an account that did not meet the requirements of the court order. On appeal, the plaintiff claims that the court (1) improperly held him in contempt although he allegedly relied on the advice of counsel when he withdrew the funds, and (2) improperly denied the parties' joint motion to open and vacate the judgment of contempt. We affirm the judgment of the trial court.

The following undisputed facts and procedural history provide the context for this appeal. The parties were married on August 10, 1996, and have three children together. On February 3, 2014, the plaintiff commenced a dissolution action. The parties subsequently entered into a pendente lite stipulation on October 27, 2014, which provided in relevant part: "The funds currently being held in escrow [by a law firm] in the approximate amount of $533,588 shall be released to the parties for deposit into a joint bank account requiring the signature of both parties prior to any withdrawals...." The court, Colin, J. , approved the parties' stipulation and made it a court order. After this order, the parties set up a joint account and transferred the escrow funds into it.

Approximately one year later, on September 23, 2015, the defendant, Deborah Hall, filed a motion for contempt. She alleged that on September 22, 2015, the plaintiff committed a wilful violation of the October 27, 2014 court order when he withdrew the sum of $70,219.99 from the joint account—the balance of the account at the time—and placed it into a separate, personal account.¹ Following an evidentiary hearing, the court, Tindill, J. , on December 7, 2015, granted the defendant's motion for contempt. Thereafter, the plaintiff, who then was self-represented, filed a motion for reconsideration, which the court denied without issuing a written decision.

Subsequent to the court's judgment of contempt; see footnote 1 of this opinion; on January 27, 2016, the parties entered into a separation agreement. That same day, the court, Hon. Stanley Novack , judge trial referee, accepted the parties' separation agreement and incorporated it into its judgment of dissolution. Section 10 of the separation agreement provided in relevant part as follows: "The parties stipulate and agree that they will file a joint motion to open and vacate the findings of contempt in that they believe such findings could interfere with the parties' future employment.... The parties understand that this motion must be filed within four (4) months of each of the orders and it is within the discretion of the Court to act thereon." Also on January 27, 2016, the plaintiff filed an appeal from the court's contempt judgment² and its denial of his motion for reconsideration.

Five days later, on February 1, 2016, the parties filed a joint motion to open and vacate the judgment of contempt requesting that the court vacate its order of contempt. The parties specifically relied on § 10 of their separation agreement in support of their joint motion to open and vacate. Judge Tindill denied the joint motion to open and vacate on March 9, 2016, without issuing a written decision. The plaintiff then filed an amended appeal on March 29, 2016, challenging the denial of the motion to open and vacate. The plaintiff's amended appeal is now before this court. Additional facts and procedural history will be set forth as necessary.

I

The plaintiff's first claim is that the trial court improperly held him in contempt of court. He argues that a court should not find that a litigant wilfully violates a court order when he or she reasonably acts in reliance on counsel's advice. According to the plaintiff, his attorney "advised him" to withdraw the funds from the joint account in violation of the October 27, 2014 court order, and the court failed to address "the evidence on advice of counsel, despite the fact that [he] testified about this repeatedly." He also claims that the court "compounded its error by denying reconsideration" because it overlooked the evidence demonstrating that he in fact relied on counsel's advice in withdrawing funds from the joint account. We are unpersuaded.

The record and the court's written memorandum of decision on the defendant's motion for contempt reveal the following undisputed facts and procedural history. After the parties set up the joint bank account pursuant to the court's October 27, 2014 order, they knew that the account did not comply with that order "the very first day" they opened it. More specifically, the joint account they set up permitted online access and, therefore, did not require signatures from either party, as required by the order, prior to the withdrawal or transfer of funds. The plaintiff testified that banks no longer require dual signatures on accounts. Nonetheless, the court order mandating that the funds be placed in an account "requiring the signature of both parties prior to any withdrawals" was not modified before the defendant filed her motion for contempt.

At some point thereafter, the plaintiff became concerned that the defendant was unilaterally withdrawing funds from the joint account and spending them on alcohol and drugs. Therefore, according to the plaintiff, on September 22, 2015, he withdrew the $70,219.99 from the joint account, without seeking the court's approval, in an attempt to preserve the remaining marital assets contained in that account. He then placed the withdrawn funds into a separate account solely in his name that the defendant could not access. On November 2, 2015, he testified: "I felt I was complying with the terms of the court order by moving the funds and wanting to put them into an account that did comply with the court order. And I demanded that [the defendant] meet me at a bank where we could set up such an account that did comply with the order." Immediately after making this statement, the following examination took place regarding the September 22, 2015 withdrawal of the $70,219.99 from the joint account:

"The Court: Were you represented by counsel at that time ?

"[The Plaintiff]: Yes, I did consult with counsel .

"[The Defendant's Counsel]: Yes. And so is your testimony, Mr. Hall—because I'm hearing you say two different things—is your testimony today [that] the reason why you moved the account, the money from the account, was because it didn't comply with the original court order or was it because you had a concern that [the defendant] was becoming drug-dependent at that point in time?

"[The Plaintiff]: The reason I felt action had to be taken was because I had recently learned about her drug abuse. The reason I felt that it was justified in acting to move the funds at that time was in order—so that I could comply with the court order." (Emphasis added.)

The court then adjourned for the day, and the parties did not appear in court again in connection with the contempt proceeding until December 1, 2015. During the December 1, 2015 hearing, the parties revisited the plaintiff's September, 2015 withdrawal of the $70,219.99. The plaintiff again testified that he withdrew the $70,219.99 from the joint account because the defendant was withdrawing funds from that same account and "spending it on cocaine binges." The court then asked the plaintiff, "And when was it that you removed the money, September what?" In response, the plaintiff testified, "Sometime in September after consulting with my counsel about the situation ." (Emphasis added.)

At various times during the proceeding, the plaintiff testified that he withdrew funds from the parties' joint account after consulting with counsel, but did not testify that he was advised by counsel to withdraw the $70,219.99 before he did so.³

When the plaintiff's counsel asked him why he should not be held in contempt, the plaintiff testified: "I believe that what I was doing was in order to comply with Judge Colin's orders from October, 2014. And that I was not utilizing the funds in any way in violation of the spirit of that agreement and that I took steps to try and work with her to comply with the order, set up a compliant account but at that point in time, there was no further cooperation on her side. Furthermore, I would say throughout the entireprocess, I was consulting with counsel about what was the proper course of action ." (Emphasis added.)

The court completed the evidentiary portion of the hearing on December 1, 2015. The parties agreed that the record contained sufficient evidence for the court to rule on both motions for contempt; see footnote 1 of this opinion; and waived argument.

In its December 7, 2015 memorandum of decision, the court found that the plaintiff wilfully had violated the court's October 27, 2014 order. The court first found that, on April 28, 2015, the plaintiff "unilaterally and without the defendant's consent, withdrew $237,643.11 and deposited it into his own ... savings account."⁴ It also found that, "[o]n September 22, 2015, the plaintiff wilfully violated the order a second time when he moved $70,219.99 from the joint account to that same savings account. Unlike the account into which the escrow funds were originally deposited pursuant to the court order, the defendant did not have access to the account into which the money was transferred." The court further found that the plaintiff acknowledged that his conduct violated the court order, but that he...