Kendall v. Pilkington

• Decision Date: 23 May 2000
• Docket Number: (SC 16082)
• Citation: 750 A.2d 1090,253 Conn. 264
• Court: Connecticut Supreme Court
• Parties: RUTH A. KENDALL v. MICHAEL PILKINGTON

253 Conn. 264

750 A.2d 1090

RUTH A. KENDALL v. MICHAEL PILKINGTON

(SC 16082)

Supreme Court of Connecticut.

Argued March 21, 2000.

Officially released May 23, 2000.

Borden, Norcott, Katz, Vertefeuille and Peck, JS. Richard L. Albrecht, with whom were Richard G. Kent and, on the brief, Vincent M. Marino, Edward Nusbaum and Thomas P. Parrino, for the appellant (defendant).

C. Michael Budlong, with whom were Campbell D. Barrett and David S. Allen, for the appellee (plaintiff).

Opinion

KATZ, J.

The issue in this certified appeal is whether the Appellate Court properly dismissed the defendant's appeal from various contempt and pendente lite orders based upon his alleged contemptuous conduct. We reverse the judgment of dismissal.

This case has a brief but complicated history.¹ On March 23, 1998, the plaintiff, Ruth A. Kendall, commenced this action for the dissolution of her marriage to the defendant, Michael Pilkington. Although the writ, summons and complaint were served by abode service on March 24, 1998, an order for notice and hearing and a subpoena duces tecum seeking voluminous documents for a court appearance on April 3, 1998, were served in hand on the defendant on March 31, 1998. Nevertheless, the defendant, a British national, left the United States and drove to Canada where he boarded a plane for Great Britain, remaining there for approximately five months.

On April 3, 1998, the court, Sferrazza, J., issued a capias with a $5,000,000 cash appearance bond against the defendant for having failed to appear pursuant to the subpoena, and ordered him to pay the plaintiff $50,000 per month alimony pendente lite and $20,000 in counsel fees. The order of counsel fees was without prejudice. Additionally, the trial court granted the plaintiff exclusive use and possession of the family dwelling and entered other orders ancillary to this appeal.

Days later, the plaintiff filed a series of motions, specifically: a motion for contempt for the defendant's failure to comply with the alimony and counsel fees orders; a motion to encumber the marital real property; a motion for a turnover order of tax refunds; and a motion to liquidate the defendant's personal property to satisfy the earlier court orders. On April 20, 1998, the trial court, Booth, J., based upon the defendant's wilful violation of the April 3 orders, granted the plaintiffs motion for contempt, sanctions and counsel fees and awarded her $1000 (first contempt). The court also granted the plaintiffs motion to liquidate the defendant's personal property, her motion for a turnover order of tax refunds and her motion to sell the marital real property, with the money from the sale of the property to be held in escrow.

On May 4, 1998, Judge Booth, acting on motions filed by the plaintiff, entered additional orders, one of which pertained to loan repayment proceeds and another to an award of additional counsel fees of $500 generated in connection with these additional motions. On May 18, 1998, Judge Booth granted the plaintiffs motion for sanctions in the amount of $2000 per day based upon the defendant's failure to comply with the various earlier financial orders. The court also ordered the liquidation of the defendant's securities portfolio in the amount of $100,000, without prejudice, and ordered the payment of counsel fees in the amount of $1000.

On June 15, 1998, in response to the plaintiffs motion for partial release of the funds from the sale of marital real property in which she outlined the alimony arrearage of $140,450, the counsel fees arrearage of $22,500, the costs of the recovery of the defendant's automobile and the $56,000 owed based upon twenty-eight days of sanctions at $2000 per day ($220,565.70 in total), the trial court granted the partial release of funds as requested, "reduced by [the] $58,000 fee."

Thereafter, on July 20, 1998, pursuant to a request by the defendant, Judge Booth reduced the capias to $500,000, but denied the defendant's motion to vacate the contempt order, the monetary sanctions and the counsel fees order of April 20, 1998. The defendant also unsuccessfully requested that the court vacate the alimony and counsel fees ordered on April 3, 1998. The court did, however, reduce the daily sanction amount to $500. Finally, on the same day, the court granted the plaintiff's motion to compel the defendant's compliance with outstanding discovery requests.

On August 6, 1998, the defendant filed an appeal with the Appellate Court from the July 20, 1998 orders. On August 10, 1998, he filed a motion with that court requesting permission to file a late appeal from the April 3 and 20, 1998 orders. That motion was denied on November 18, 1998.

On August 17, 1998, based upon the defendant's failure to pay periodic monthly alimony, the trial court, Sferrazza, J., granted the plaintiffs motion for contempt and imposed counsel fees of $1000 in connection with that motion (second contempt). Additionally, the court granted the plaintiffs motion for release of $111,025 being held in escrow to satisfy the court-ordered monthly alimony and sanctions. On August 24, 1998, the court vacated the $500 daily sanction penalty order of July 20, 1998, effective as of that date.

On September 3, 1998, the trial court, Kocay, J., denied the defendant's motion for a protective order, dated August 5, 1998, regarding the disclosure of information requested in the plaintiff's first set of interrogatories and request for production. On that same date, the court also granted the plaintiff's motion for counsel fees of $2400 to defend the aforementioned appeal of the July 20, 1998 orders.

On September 8, 1998, the court, Kocay, J., granted the plaintiffs motion for contempt for failure to comply with the July 20, 1998 discovery order, and gave the defendant twenty days within which to comply (third contempt).² Additionally, the court awarded the plaintiff $3000 in counsel fees in connection with that motion. The court also granted the plaintiffs motion for the additional release of $3500 in escrow funds to satisfy the monetary sanctions that were still outstanding as of August 24, 1998, the date on which the court vacated the daily sanction penalty order. Finally, the court granted the plaintiff's motion for a protective order, staying certain activity in the case until such time as the defendant had complied with the plaintiffs discovery requests.

On September 14, 1998, the defendant filed an amended appeal from the two orders of September 3, 1998, and the orders from September 8, 1998, granting the plaintiffs motion for a protective order and motion for contempt.³ On September 21, 1998, the trial court, Sferrazza, J., vacated the $50,000 weekly alimony order, having "heard evidence ... [that] casts doubt and uncertainty on the true status and amount of the defendant's trust income." Following motions for articulation filed by both parties, in a revised memorandum dated September 28, 1998, the court clearly stated that no other orders were being vacated and that no sums already disbursed were to be returned. "The order vacat[ing] the alimony order is retroactive to April 3, 1998, however, the plaintiff need not return any sums received but rather the defendant shall be credited with such sums against any [pendente lite] or permanent alimony order issued upon rehearing."

On October 29, 1998, the trial court, Kocay, J., granted the plaintiffs motion for counsel fees in the amount of $25,000, from which the defendant filed an amended appeal on November 12, 1998. Then, on November 23, 1998, Judge Kocay ordered the defendant to pay the plaintiff $4000 per week as alimony pendente lite. The court added that "[a]ll credits for prior payments are deferred until the final awards at trial. This order is retroactive to the date of the initial award." The defendant filed an amended appeal from this order on December 3, 1998.

According to counsel for the defendant, on December 7, 1998, Judge Kocay indicated that he had not intended to create an immediate arrearage owing for the period from April 3, 1998, to September 30, 1998. Nevertheless, the court found that the defendant owed an alimony arrearage of $38,857 for the period from October 1, 1998, to that date, ordered that he pay $19,000 by December 17, 1998, found the defendant in contempt for nonpayment of alimony, and awarded $7000 to the plaintiff for attorney's fees (fourth contempt). Finally, the court denied the defendant's motion for a stay of the December 3, 1998 alimony order. The defendant complied by depositing the $19,000 with the plaintiff's counsel, and on December 15, 1998, the defendant filed an amended appeal from the orders of December 7, 1998. All together, the defendant filed one appeal, which he amended four times, incorporating the aforementioned challenges.

On December 11, 1998, the plaintiff filed a motion to dismiss the defendant's appeal on the basis that the defendant had not complied with the trial court's order of November 23, 1998, nor purged himself of the contempt order of December 7, 1998, at which time it was determined that there was an alimony arrearage from October 1 through December 7, 1998, of $38,857.14. Citing to the lengthy procedural history of the case and the three other occasions on which the defendant had been held in contempt by the court, the plaintiff argued that the defendant was not entitled to obtain appellate relief because he had failed to comply with the various trial court orders.

On December 24, 1998, the plaintiff filed a second motion to dismiss the defendant's appeal, adding new facts in support of the motion. Specifically, the plaintiff related that, despite being served in hand with the plaintiffs subpoena duces tecum on December 19, 1998, for a scheduled court appearance on December 21, 1998, the defendant failed to appear. His counsel, however, did appear, and reported to the court that the defendant had attempted suicide by ingesting...