Wolosoff v. Wolosoff

• Decision Date: 13 September 2005
• Citation: Wolosoff v. Wolosoff, 880 A.2d 977, 91 Conn.App. 374 (Conn. App. 2005)
• Court: Connecticut Court of Appeals
• Parties: JAMES WOLOSOFF v. DOROTHY WOLOSOFF.

91 Conn. App. 374

880 A.2d 977

JAMES WOLOSOFF v. DOROTHY WOLOSOFF.

(AC 25407), (AC 25478).

Appellate Court of Connecticut.

Argued April 25, 2005.

Officially released September 13, 2005.

Dranginis, Flynn and Bishop, Js.

Eric R. Posmantier, with whom, on the brief, was Andrew P. Nemiroff, for the appellant (defendant).

Edward M. Kweskin, with whom, on the brief, were John A. Farnsworth and Natalie Shteyngarts, for the appellee (plaintiff).

Opinion

BISHOP, J.

The defendant, Dorothy Wolosoff, appeals from the judgments of the trial court rendered in favor of the plaintiff, James Wolosoff, on the defendant's post-judgment motions for contempt and for attorney's fees in this dissolution action. On appeal, the defendant argues that the court improperly (1) failed to provide her with an evidentiary hearing, (2) refused to mark a proffered document for identification, (3) denied her motion for contempt and (4) denied her request for attorney's fees under the parties' separation agreement. We agree with the defendant as to her first and second claims and reverse the judgments of the trial court.¹

The following facts and procedural history are relevant to the defendant's appeals. On April 28, 1988, the court rendered judgment dissolving the parties' marriage and incorporating into the judgment their written stipulation. As part of the dissolution, the plaintiff agreed to pay the defendant $125,000 per year in alimony and to provide certain security for its payment. In conjunction with the security arrangement, the plaintiff further agreed to provide a financial statement from his accountant to the defendant each year.² The defendant filed a motion for contempt on September 12, 2003, arguing, inter alia, that the defendant had failed to provide financial statements since 1995. On October 27, 2003, prior to a hearing regarding the motion, the plaintiff's attorney, Edward M. Kweskin, showed the defendant's attorney, Andrew P. Nemiroff, the plaintiff's 2002 financial statement (October statement), which purportedly detailed his assets and liabilities. The parties entered into a stipulation on that day, in which they agreed that "the plaintiff shall forthwith tender to defendant's counsel a current financial statement in accordance with [paragraph six] of the judgment." Because Kweskin did not have a copy of the statement, he told Nemiroff that he would forward him a copy. Later, when Kweskin discovered that Nemiroff intended to allow the defendant to review the statement, he refused to turn it over and, on November 19, 2003, the plaintiff filed a motion for a clarification or modification of the judgment. On November 20, 2003, the defendant responded with a motion for contempt and sanctions on the basis of the plaintiff's failure to submit the financial statement to her in accordance with the terms of the judgment and their October 27, 2003 stipulation.

The court, Hon. Stanley Novack, judge trial referee, held a hearing on February 20, 2004, regarding the plaintiff's motion for clarification. At the hearing, the court denied the plaintiff's motion for clarification and modification, and ruled that the defendant must submit the October statement to the defendant through counsel. The court stated: "Now that I have clarified that there is no reason why you can't supply him with the statement and you should do so forthwith. . . . The motion for clarification is denied. . . . What I said is what I've also ordered that twenty-one days from now or earlier, [the plaintiff] should furnish the last financial statement to Mr. Nemiroff to share with his client." Following the court's order, the plaintiff submitted a revised 2002 financial statement (April statement), which differed from the October statement shown to Nemiroff. Simultaneously, the plaintiff also submitted a statement for the calendar year 2003. Significantly, both statements were in summary form. Unlike the October statement, which initially was proffered but then withdrawn by the plaintiff, the later offered statements indicated gross values for the plaintiff's assets and liabilities without any indication of the identification of any of the claimed assets.

Upon receipt of the summary statement, the defendant renewed her motion for contempt, claiming that the April statement and the 2003 statement did not comport with the terms of the judgment or the October, 2003 stipulation. On April 5, 2004, the court, Winslow, J., heard oral arguments on the defendant's motion for contempt. During the argument, the defendant made an offer of proof regarding the facts and circumstances surrounding the signing of the October, 2003 stipulation. The defendant also attempted to introduce documentary evidence in the form of financial statements submitted by the plaintiff prior to 2002. The record reflects that the court concluded that the judgment and October, 2003 stipulation were unambiguous and that the plaintiff had complied with their terms as a matter of law.

The court stated: "The document that was called for to be provided is set forth in paragraph six of the judgment, and it speaks for itself. Financial statement from his accountant within thirty days of the completion of the annual statement by the accountant here, that the defendant is entitled to receive said $125,000. . . . It simply is a financial statement from the accountant prepared within thirty days of the annual financial statement. There's no specificity. It does not say substantially in the form of whatever prior financial statement that has been produced. . . . The—the court finds that the form presented to the defendant in this matter satisfies the judgment and the order of this court, and for that matter, the order if it was one, from Judge Novack, although I have to question whether it was an order from Judge Novack based on the transcript. . . . [The April statement] meets the requirements of the judgment on its face." The court later stated: "I've made a ruling essentially that is a matter of law at this point as to whether a particular document complies with the rule of the court, so you can—the essential question is does the financial statement that has been proffered comply with the order of the Court that such a financial statement be proffered."

After the ruling, the defendant attempted to call Kweskin to testify regarding the circumstances surrounding the October, 2003 stipulation and attempted to have the October statement marked for identification. The court denied both of the defendant's requests. Subsequently, the court, Hon. Stanley Novack, judge trial referee, heard the defendant's motion for attorney's fees and, on the basis of Judge Winslow's ruling on the defendant's motion for contempt, denied the motion. The defendant has appealed from each of the judgments.

I

At the outset, we note that the plaintiff claims on appeal that the issues raised by the defendant are moot. He makes that claim on the ground that because it is now calendar year 2005 and the financial statements for the calendar years 2002 and 2003 were intended to assure adequate security for the payment of alimony in the years following the submission of each of the financial statements for those years, there is no practical relief this court can presently afford the defendant.

"Mootness presents a circumstance wherein the issue before the court has been resolved or [has] lost its significance because of a change in the condition of affairs between the parties. . . . Since mootness implicates subject matter jurisdiction . . . it can be raised at any stage of the proceedings. . . . The test for determining mootness of an appeal is whether there is any practical relief this court can grant the appellant.. . . If no practical relief can be afforded to the parties, the appeal must be dismissed." (Internal quotation marks omitted.) Hartney v. Hartney, 83 Conn. App. 553, 565-66, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004). If we assume that each financial statement was to provide security for the payments due for each calendar year, then we agree that the question of whether the October statement or the April statement complied with the judgment has become moot. The defendant claims that the security requirement as set forth in the dissolution judgment need not be read as relating only to each year, but rather that it can be viewed as a cumulative responsibility.

The defendant asserts, additionally, that even if the issue is moot, the court has subject matter jurisdiction because the issue she raises is capable of repetition and yet likely to evade review. We agree.

"We note that an otherwise moot question may qualify for review under the capable of repetition, yet evading review exception. To do so, however, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." (Internal quotation marks omitted.) Concetta v. Stamford, 246 Conn. 281, 295-96, 715 A.2d 756 (1998).

The facts presented by these appeals are apt for application of the exception to the mootness doctrine. Although the plaintiff has an annual alimony obligation and a concomitant security requirement, it is apparent from the date of the judgment on the defendant's motion for contempt that unless we decide the issue raised on appeal, the parties will not be able to obtain...