Rousseau v. Perricone

• Decision Date: 25 March 2014
• Docket Number: No. 34957.,34957.
• Court: Connecticut Court of Appeals
• Parties: Robert ROUSSEAU v. Madeleine PERRICONE.

148 Conn.App. 837

88 A.3d 559

Robert ROUSSEAU

v.Madeleine PERRICONE.

No. 34957.

Appellate Court of Connecticut.

Argued Nov. 19, 2013.

Decided March 25, 2014.

Daniel J. Klau, Hartford, for the appellant (defendant).

Daniel D. Dwyer, Essex, with whom were Robert Rousseau, self-represented, Jon L. Schoenhorn, Hartford, and, on the brief, Timothy J. Fitzgerald, Glastonbury, for the appellee (plaintiff).

BEACH, BEAR and WEST, Js.

BEACH, J.

In this marital dissolution action, the defendant, Madeleine Perricone, challenges certain property distribution and orders entered by the trial court in its judgment dissolving her marriage to the plaintiff, Robert Rousseau. The defendant claims that the court erred (1) by failing to strike the testimony of a certain witness after he refused to answer certain questions on cross-examination; (2) by not ordering the plaintiff to repay to her $500,000 that the defendant had transferred to him; (3) in ordering her to releasethe plaintiff and to hold him harmless from a pending civil action she had commenced in the trial court; and (4) in imposing a sanction on her for a discovery violation that her attorney allegedly committed. We affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. The parties met in November, 2006, through a dating service and married in July, 2007. They did not commingle assets during the marriage except for investments in various cosmetics companies located in California.

The plaintiff had multiple business interests that predated his marriage to the defendant. His principal business was Preferred Display Incorporated (Preferred Display), which manufactured displays for the cosmetics industry and had a worldwide customer base. The parties initially resided in a modest four bedroom ranch style home in Glastonbury. The defendant later purchased a larger home on Drumlin Road in Glastonbury.

Prior to their marriage, the parties traveled to California and had business discussions with various persons in the cosmetics industry, including Harry Haralambus. The defendant invested approximately $2 million and the plaintiff invested approximately $2.5 million in California cosmetics companies. As of the last day of trial, neither the plaintiff nor the defendant had seen a return on their investments.

The court did not find any merit to the defendant's claims that she made investments in the California cosmetics companies because of fraud, duress or undue influence on the part of the plaintiff. The court found that the investments were risky and that both the plaintiff and the defendant voluntarily made what turned out to be bad investments. The court also imposed a $25,000 sanction on the defendant for failure to comply with discovery orders. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court erred in failing to strike the testimony of Haralambus after he refused to answer certain questions on cross-examination. We disagree.

Haralambus testified on direct examination that he had interests in cosmetics companies in California. The plaintiff and the defendant had invested in at least one of the same companies. Haralambus wanted to enhance the value of the companies by combining them into a holding company. He testified that “[t]he holding company had been set up. However, the problem was that in order to complete the process, we had to have this discussion with each individual shareholder and get a decision from them as to whether they wanted to swap their stock in an individual entity with the appropriate amount of stock in the holding company.... [I]t was important to have everybody interested in the holding company, because that way, we could act in unity.” Haralambus testified that other investors in California were “on board” with the holding company idea. He stated that both the plaintiff and the defendant delayed making decisions. Haralambus indicated that he was “frustrate[d]” by being “put in this hold pattern by two very important shareholders.” He testified that the plaintiff damaged his chance of recovering on his investment when “he failed to vote ... to move forward.” He also testified that the defendant harmed her chance of recovering on her investment by failing, as did the plaintiff, “to move forward with what was agreed and arranged upon.”

On cross-examination, the following colloquy occurred:

“[The Defendant's Counsel]: Do you have documents concerning the consolidation or merger of these entities?

“[Haralambus]: The proper final consolidation has not occurred, because it's being held up by two shareholders or more. Correctly speaking, one shareholder, Madeleine, LLC.¹ ...

“[The Defendant's Counsel]: Can you tell me which ones have?

“[Haralambus]: It's confidential information.

“[The Defendant's Counsel]: Your Honor, I—the witness has to be instructed to answer.

“The Court: You need to answer the question.

“[Haralambus]: I'd be breaching confidentiality agreements if I did.”

The defendant's counsel argued that “[t]his is all about the decision by [the plaintiff] to call [Haralambus] to testify that because of [the defendant's] refusal to cooperate and become part of a roll up into a holding company, that the whole thing is now unprofitable and that now ... Haralambus is in trouble. And I have an opportunity here ... to check [Haralambus'] credibility to see whether or not what he's saying to the court is credible.” The court suggested that Haralambus answer the following question: “Out of all the shareholders and investors that you have that you wanted to consolidate into this holding company, has everybody signed agreements to do so, but the two people sitting in the courtroom?” To which Haralambus answered in the negative. The court then asked: “So, it would be fair to say that the failure to consolidate everything into this holding company and the impact that it's had on the business isn't solely the result of these two people in this courtroom?” Haralambus answered: “That may well be so, Your Honor.” The defendant's counsel informed the court that he wanted to know how many companies voted against consolidation into a holding company and which ones. Haralambus explained that those questions place him in a difficult position in which he is “losing the ability to defend myself and those companies from legal assault.” The defendant's counsel agreed to address the question of the confidentiality agreement at a later date.

At his next court appearance, Haralambus was represented by counsel. Haralambus' counsel requested that the court conduct an in camera review of the confidentiality agreement. The court did so. The defendant's counsel again stated that he wanted to question Haralambus regarding the identity of the entities that had not wanted to consolidate, because such testimony “impeaches the witness' testimony further.” The court stated: “He's already said that there are other entities or people that did want to roll up. You've made your point.” The court concluded that the agreement was “between people who are not part of this case, not present in this courtroom, and they're entitled to their confidentiality. Additionally, the court's going to make a finding that there is no relevance of this to the present case.” The defendant's counsel orally moved for a mistrial and to strike Haralambus' testimony. He argued that the court's ruling that the confidentiality agreement barred Haralambus from disclosing the identities of the other entities involved in the consolidation effort adversely affected his ability to cross-examineHaralambus. The court denied both motions.²

The defendant argues that “[b]eyond the parties themselves, there is no witness more central to the financial shenanigans in this case than ... Haralambus.... The plaintiff offered the testimony of Haralambus to shift blame for the defendant's loss of her investment away from Haralambus' and the plaintiff's financial shenanigans and onto the defendant for refusing to participate in the consolidation or ‘roll up’ of the individual companies into a single holding company, which allegedly would have enhanced the overall value of the companies.... Haralambus testified on direct examination that all of the investors had agreed to the consolidation of the cosmetic companies into a holding company except the defendant, and that her refusal was responsible for the lack of financial success of the enterprise.” ³ (Emphasis omitted.) The defendant argues that the court's failure to permit cross-examination on a “critical issue” was erroneous and deprived her of her due process rights.

“In determining whether a defendant's right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.... Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate inquiry constitutes an abuse of discretion.” (Internal quotation marks omitted.) Corriveau v. Corriveau, 126 Conn.App. 231, 236–37, 11 A.3d 176, cert. denied, 300 Conn. 940, 17 A.3d 476 (2011).

The court did not abuse its discretion in not permitting inquiry into the identity of other investors in the California cosmetics companies venture. Testimony was elicited from Haralambus that there were persons or entities other than the parties that did not agree to consolidate, and Haralambus agreed that it “may well be” that the failure to consolidate was not solely the result of the parties' actions. The identity of the other investors that were not in favor of consolidation was not material to the issue of the defendant's...