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Donshik v. Donshik
KAREN DONSHIK v. DANIEL DONSHIK
(AC 46983)
Suarez, Westbrook and Wilson, Js.
Syllabus
The plaintiff appealed from the trial court’s judgment dissolving her marriage to the defendant and finding in his favor as to her claims of conversion and statutory (§ 52-564) theft. The plaintiff, who was a joint holder with the defendant of certain brokerage accounts, claimed, inter alia, that the court improperly determined that the torts of conversion and statutory theft did not apply to moneys misappropriated by joint account holders. Held:
The trial court did not abuse its discretion when it precluded the plaintiff’s expert witness from testifying about the value of the defendant’s business enterprise, as the expert was not disclosed until the middle of trial even though the case had been pending for more than three years, the defendant’s prior responses to the plaintiff’s discovery requests were sufficient for an expert to offer an opinion on the value of the business, and the court’s preclusion order was a proportionate sanction for the plaintiff’s noncompliance with prior disclosure requirements and a reasonable exercise of the court’s inherent authority to manage its docket.
This court declined to review the plaintiff’s unpreserved, conclusory claim that the trial court’s limitation of her counsel’s direct examination of the defendant at trial constituted a violation of the plaintiff’s right to procedural due process, as the claim was inadequately briefed.
The plaintiff’s contention that the trial court applied an improper legal standard in awarding her only nominal damages on her claim of negligent infliction of emotional distress was unavailing, as the court effectively compensated the plaintiff through its financial orders when dissolving the marriage, virtually all of the evidence to support the negligent infliction of emotional distress claim had been presented in the dissolution portion of the trial and was relevant to the factors the court was required to consider in making its financial orders, and the court recognized that an award of damages on the negligent infliction of emotional distress claim would violate the common-law rule precluding double recovery.
The trial court improperly rendered judgment for the defendant on the plaintiff’s claims of conversion and theft in violation of § 52-564 relative to the parties’ jointly held brokerage accounts, as the court made no factual findings regarding the accounts but, instead, improperly relied on the statute ((Rev. to 2019) § 36a-290) governing joint bank and credit union accounts in determining, as a matter of law, that the defendant could not be held liable for the conversion of funds in the brokerage accounts; accordingly, the judgment was reversed as to those claims and the case was remanded for further proceedings on those counts of the plaintiff’s complaint.
Donshik v. Donshik
This court declined to review the plaintiff’s claim that the trial court summarily denied her motion to stay the trial proceedings without first balancing the interests of the parties, nonparties, the public and the court, as the plaintiff’s failure to seek an articulation of the trial court’s reasoning rendered the record inadequate for review, and, in the absence of an indication to the contrary, it was presumed that the court applied the correct legal standard in declining to stay the proceedings.
Argued September 18, 2025—officially released September 29, 2026
Procedural History
Action for, inter alia, the dissolution of a marriage,
and for other relief, brought to the Superior Court in the
judicial district of Hartford and tried to the court, Klau, J.; thereafter, the court granted in part the defendant’s
motion to preclude certain evidence; judgment in part
for the plaintiff, from which the plaintiff appealed to
this court. Reversed in part; further proceedings.
Igor G. Kuperman, for the appellant (plaintiff).
Brandon B. Fontaine, with whom was Kathleen E.
Scelfo, for the appellee (defendant).
Opinion
SUAREZ, J. In this dissolution action, the plaintiff,
Karen Donshik, appeals from the judgment of the trial
court dissolving her marriage to the defendant, Daniel
Donshik, and rendering judgment in favor of the defendant on certain civil tort counts raised in her amended
complaint. On appeal, the plaintiff claims that the court
improperly (1) precluded her expert witness from testifying at trial, (2) limited her direct examination of the
defendant, (3) awarded only nominal damages on her
claim of negligent infliction of emotional distress, (4)
rendered judgment for the defendant on her claims of
conversion and statutory theft, and (5) denied her motion
to stay the proceedings. We conclude that the trial court
erred only with respect to the plaintiff’s counts alleging
conversion and statutory theft concerning certain of the
parties’ joint accounts and, accordingly, reverse in part
Donshik v. Donshik
the judgment of the court and remand the case for further
proceedings on those counts consistent with this opinion.
The following facts, which were either found by the
trial court or are otherwise undisputed, and procedural
history are relevant to the resolution of this appeal. On
March 24, 2020, the plaintiff commenced the present
action, seeking, inter alia, a dissolution of marriage,
child support, alimony and an equitable division of assets.
On March 22, 2021, the plaintiff, in a self-represented
capacity, filed a separate civil action against the defendant in the Superior Court. See Donshik v. Donshik,
Superior Court, judicial district of Hartford, Docket No.
CV-XX-XXXXXXX-S (civil action). In a three count complaint sounding in conversion, civil theft, and forgery,
she alleged that “the defendant had stolen the plaintiff’s
share of jointly owned marital assets and had forged the
plaintiff’s name to various documents, including credit
card applications.” On June 17, 2021, the defendant filed
a motion to dismiss the civil action in which he alleged
that “the same underlying rights involving the same parties are at issue in a dissolution action currently pending in Connecticut Superior Court . . . . Accordingly, [the
civil action] should be dismissed pursuant to the prior
pending action doctrine.”
A trial in the present dissolution action commenced
before the court, Klau, J., on February 1, 2022. On March
16, 2022, the court, Rosen, J., issued a memorandum of
decision dismissing the civil action. In its memorandum
of decision, the court in the civil action concluded that
the dissolution action and the civil action were “virtually alike” and that trying the civil claims separately
from the dissolution claims would result in unnecessary,
duplicative litigation. Specifically, the court stated that all “counts of the [civil] action require adjudication of
the same underlying rights at issue in the dissolution
action, namely, the parties’ property rights.” The plaintiff timely appealed to this court from the judgment
rendered in the civil action.
Donshik v. Donshik
While the dissolution trial was pending, the court,
Klau, J., “invited the plaintiff to file an amended complaint in family court asserting the marital dissolution
and civil tort claims. The court’s invitation required the
plaintiff to agree to withdraw her appeal and both parties
to waive their right to a jury trial on the plaintiff’s civil claims. The parties accepted the court’s invitation and its terms.” (Footnote omitted.) Subsequently, the plaintiff
withdrew her appeal from the judgment rendered in the
civil action, and the parties entered into a stipulation in the present case in which the plaintiff agreed to waive
her right to a jury trial on her tort claims, and both parties agreed to try the issues presented in the dissolution
action and the civil action simultaneously.1 The court
accepted the stipulation.
On October 24, 2022, the plaintiff filed a second
amended complaint, the operative complaint, seeking a
dissolution of the parties’ marriage and asserting several
civil tort claims, including conversion, statutory theft,
forgery, intentional infliction of emotional distress,
negligent infliction of emotional distress, identity theft, common-law fraudulent conveyance, fraudulent conveyance pursuant to the Uniform Fraudulent Transfer Act,
General Statutes § 52-552a et seq., and fraud.2
In the second count of her operative complaint, the
plaintiff alleged that the defendant had converted
assets belonging to her in whole or in part. Specifically,
the plaintiff alleged that she and the defendant were
1
The parties also agreed that the claims alleged in the civil action were subject to the same claims and defenses in the dissolution action that would have applied in the civil action such as any applicable statutes of limitations and laches defenses. Additionally, the parties agreed that trying the issues presented in the two actions after the trial in the dissolution action had begun would not give rise to any grounds for a mistrial.
2
After dissolving the parties’ marriage and entering orders of custody, child support, alimony and division of assets, the trial court rendered judgment for the plaintiff on the negligent infliction of emotional distress and forgery counts. The court, however, awarded nominal damages on both counts. The court rendered judgment for the defendant on the remaining counts.
Donshik v. Donshik
co-owners of at least two Schwab brokerage accounts,
the defendant wrongfully liquidated the investments
in the accounts without her knowledge, authorization
or permission by forging her signature, and that the
defendant had concealed “excessive cash withdrawals
from the jointly held accounts into bank accounts exclusively controlled by the defendant, including at least
$135,000 wired into the bank account of Rollcage Technology, Inc. [(Rollcage)] . . . .” Additionally, the plaintiff alleged in the second count of her operative complaint
that the defendant withdrew funds from other jointly
held accounts3 that were paid “directly to bank accounts
and other financial accounts under the sole control of
the defendant.” Moreover, the plaintiff alleged that the
defendant had secretly withdrawn the cash value from a
Pacific Life Company whole life insurance policy (insurance policy), of which she was the sole beneficiary, with
all proceeds paid to bank accounts controlled exclusively
by the defendant for his sole personal use. The plaintiff
sought compensatory and punitive damages.
In the third count of the operative complaint, the
plaintiff, asserting the same factual allegations that
she made in count two, claimed that the defendant, with
the intent to deprive her of property or to appropriate
the property to himself or a third person, wrongfully
took, obtained and withheld such property from her.
The plaintiff sought treble damages pursuant to General
Statutes § 52-564.4
In the sixth count of the operative complaint, the plaintiff asserted, inter alia, that, as a result of the defendant’s secret dissipation of funds and the accumulation
of substantial credit card debt and other debt, she sustained severe emotional distress. She further alleged
that the defendant intended to inflict emotional distress
3
The plaintiff does not specifically identify these other bank accounts by either their account numbers or the names of the applicable institutions in the operative complaint.
4
General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”
Donshik v. Donshik
or that he knew, or should have known, that emotional
distress was the likely result of his conduct. The plaintiff claimed that she sustained actual damages as a result
of the defendant’s actions.5 According to the plaintiff,
the defendant acted recklessly, thereby entitling her to
recover punitive damages.
On January 11, 2023, at the beginning of the seventh
day of trial, the court bifurcated the marital dissolution count of the amended complaint from the civil tort
counts. The court concluded evidence on the dissolution
count on January 25, 2023. The court heard evidence on
the civil tort counts on May 18 and 19, 2023. All evidence
submitted on trial dates before May 18, 2023, was part
of the trial record on the tort counts but not on the dissolution count.6
On September 27, 2023, the trial court issued a memorandum of decision in which it found that the parties
were married on April 20, 1997, and had three issue of
the marriage, two of whom had reached the age of majority. The court also found that the marriage had broken
down irretrievably.
The trial court further found that the plaintiff was
approximately fifty years old and a graduate of Amherst
College and the University of Connecticut School of Law.
She also earned an LLM degree in elder law and estate
planning. After passing the bar examination in 1996,
she was employed as an adjunct professor “teaching
paralegals until December, 1999, several months before
the parties’ eldest child was born. From that time until
May, 2020, the [plaintiff] was the primary caretaker of
the home and the children. She worked ‘a few hours a
week’ as a tutor, including for students preparing to take
5
Specifically, the plaintiff alleged that she suffered from an inability to sleep, extreme anxiety, crying daily, constant worry, a sense of betrayal, an inability to obtain loans and credit cards in her name, a constant threat of cancellation of health insurance, and additional health issues with their children.
6
The trial was held on eleven nonconsecutive days over the course of fifteen months.
Donshik v. Donshik
the [Law School Admission Test]. Her annual earnings
from such work were approximately $2500.”
The trial court found that, at the time of the dissolution
trial, the plaintiff was working as a contract attorney
for a law firm in Vernon. “She bills approximately ten
hours per week, for which she is paid $50 per hour plus
a commission on work that she brings to the firm. She
also works an additional ten hours per week on business
development. She is not paid for that time. Her financial
affidavit (dated October 25, 2022) shows gross weekly
income of $484.61 and gross annual income of $20,213
for 2022. Her net weekly income is $410.46.” The court
noted that the plaintiff testified that, “for all intents
and purposes, she is a new attorney trying to develop a
book of business, her current income reflects her earning
capacity now, and she hopes that her business development efforts will result in higher earnings in the future.” The court agreed with the plaintiff’s testimony that she
was in essence a new attorney trying to develop her business; however, it disagreed with her testimony that her
current income reflects her earning capacity. Rather,
the court found that the plaintiff “is a highly educated
individual who is capable of earning at least a minimum
wage income now. She has decided to forgo that level of
income now in the hope that her business development
efforts as an attorney will result in substantially greater income in the coming years. Exactly how much more she
can earn, however, is difficult for the court to ascertain
with reasonable certainty. Neither party presented an
earning capacity expert, and the [plaintiff] does not
have a significant earning history.” The court concluded
that the plaintiff had at least a minimum wage earning
capacity.
As to the defendant, the trial court found that he was
fifty years old and had significant physical and mental health conditions. The defendant was being treated
for anxiety, alcohol, and substance abuse disorders. He
was taking multiple medications. The court further
found that the defendant had an undergraduate degree
Donshik v. Donshik
in history from Columbia University and a master’s
degree in business administration from the University
of Connecticut. The court found that the defendant had
started his own business, Rollcage, which “provided
enterprise support for clients around PeopleSoft software.” The court further found that Rollcage had filed
for bankruptcy protection in 2022 but that, historically,
the defendant had drawn an annual salary of $185,000
to $225,000 from Rollcage.
The defendant’s income varied significantly since Rollcage filed for bankruptcy. The trial court found that,
despite the defendant’s persistent job-seeking efforts,
the defendant was unemployed for many months, and he
had been unable to find full-time employment as of the
last day of trial. The court further found that, “[i]n late 2022, he obtained temporary employment for ten weeks,
at a rate of approximately $3000 weekly (gross).” The
court noted that it was “confident that the [defendant]
[would] find permanent employment and that he [would]
earn between $150,000 to $200,000 annually.” On that
basis, the court found that the defendant had an earning
capacity of $150,000.
With respect to the marriage, the trial court noted that
the parties had agreed to a “traditional division of labor” in which the defendant was the primary breadwinner and
the plaintiff was the primary caretaker of the children
and the home. As to the breakdown of the marriage, the
court found that the failure of Rollcage and the steps
the defendant took to save the company had devastating
financial consequences for the parties and their family.
Rollcage had grown from its creation in 2000 into a
successful business by 2017. “In late 2017, a salesman
. . . Shaun White . . . presented the [defendant] with a
proposal to significantly increase Rollcage’s business by
expanding its customer base.” The defendant decided to
follow White’s proposed business plan. The defendant
hired White and additional employees, made large capital
expenditures and leased significant additional computer
server capacity. White’s plan was not successful. By the
Donshik v. Donshik
summer of 2019, Rollcage was experiencing significant
financial problems, including its inability to make payroll. The defendant was reluctant to fire employees7 so
he began to use personal credit cards and other family
assets to finance the business.
“When Rollcage ceased operations, it still had several
customers under contract. The value of those contracts
at the time was approximately $600,000.” The trial court
noted that the plaintiff repeatedly pointed to those contracts as irrefutable evidence that Rollcage was a viable
company. Moreover, the court stated that the plaintiff
maintained that the defendant had fraudulently transferred those remaining contracts to a new company,
and she speculated that he was secretly operating a new
company and hiding his income from that company. The
court, however, specifically rejected that speculation.
The court also credited the defendant’s testimony that
Rollcage’s expenses and liabilities far exceeded the value
of those remaining contracts and found that, by April
2022, Rollcage was no longer a viable company.
Additionally, the trial court noted that “[t]he [plaintiff] contended throughout the trial that she left all financial
decisions to the [defendant]” and that the defendant “was
less than transparent with [the plaintiff] about family
and business finances.” The court, however, found that
the plaintiff’s testimony that she did not know anything
about the parties’ finances was not credible. Instead, the
court found that the plaintiff “often spoke with Rollcage
employees, and she was aware of the problems Rollcage
was having meeting payroll in 2019.” Specifically, the
court found that, “although she may not have appreciated the severity of Rollcage’s financial problems and
their impact on family finances, she cannot credibly
claim complete ignorance.”
The trial court further found that, in the midst of
Rollcage’s financial problems, the parties had decided
7
In its memorandum of decision, the trial court noted that Rollcage’s former chief operating officer testified credibly that the plaintiff also opposed laying off two particular employees.
Donshik v. Donshik
to purchase a second home in Florida. The parties began
to look at possible properties in April 2019 and made an
offer of $760,000 on a five bedroom home. The defendant
withdrew $200,000 from an IRA to use toward the purchase price of the Florida home; however, the parties were
unable to secure a mortgage loan to finance the home, so
the defendant entered into a “draconian lease”8 instead.
In January 2020, after returning to Connecticut from
Florida, the parties received a notice of foreclosure on
their Connecticut home, and the plaintiff received a telephone call from USAA Federal Savings Bank inquiring
about certain credit cards that the plaintiff did not know
existed. The plaintiff ran a credit report that showed
many credit cards with large balances. The plaintiff confronted the defendant, and he acknowledged responsibility for the financial situation that existed and vowed to
fix it. The defendant left the family home permanently
on March 14, 2020.
In its memorandum of decision, the trial court noted
that the plaintiff placed “100 percent of the blame for
the breakdown of the marriage on the [defendant].” The
court, however, “[did] not share that view.” Instead, the
court found that “the parties had a troubled marriage
for many years, well before 2019, when they began to
experience serious financial challenges. The [defendant]
made what turned out to be a bad business decision when
he hired . . . White and pursued a new business strategy
that failed. The [defendant] tried to keep Rollcage afloat
by borrowing excessively against credit cards and using
other family finances. The parties made a bad situation
worse by trying to buy a second home in Florida. The
[plaintiff] learned the full extent of the parties’ financial situation in January 2020.” Although the court did not
find the defendant at fault for making a bad business
8
At trial, the defendant testified that he had commenced an action to recover the $200,000 he paid for the lease on the property but that he lacked the money to pursue the action. The court noted that the status of the action was unclear but, to the extent a viable legal action still existed, the court indicated that it addressed any possible recovery in its property division orders.
Donshik v. Donshik
decision, the court did find him responsible for failing
to communicate clearly and openly with the plaintiff
about the deteriorating financial situation and the steps
he was taking to save the business. Likewise, the court
found that the plaintiff “shares responsibility for the
breakdown of the marriage by, among other things,
insisting that the parties buy a second home in Florida
when she knew Rollcage was experiencing financial difficulties.” The court concluded that, while both parties
bore responsibility for the breakdown of the marriage,
“[o]n balance . . . the [defendant] is primarily at fault
for the breakdown.”
With respect to the parties’ financial situation at the
time of the dissolution of the marriage, the trial court
noted that the parties had “little left by way of marital
assets, and much left by way of debt.” The court noted
that the plaintiff’s financial affidavit dated October
25, 2022, listed assets totaling $122,134 and liabilities
of $165,000. The defendant’s financial affidavit dated
January 11, 2023, listed cash assets of $94,558 and total
liabilities of $1,165,654. The court noted that, from
the plaintiff’s perspective, the most important asset
was Rollcage, which she claimed had a value of at least
$4.5 million, and she was seeking a payment to her of
50 percent of that value. On the other hand, the court
noted that the defendant maintained that Rollcage had
no value. The court credited the defendant’s position
and found that Rollcage had no value. The court based
its valuation of Rollcage on the defendant’s credible
testimony, the fact that the plaintiff never disclosed an
expert witness with an opinion as to the value of Rollcage
to rebut the defendant’s opinion of its value,9 and the
plaintiff’s “nonexpert evidence of value, including her
personal opinion and the arguments of counsel based on
9
In its memorandum of decision, the trial court noted that “[i]t is well settled that the owner of property is competent to testify to its value. . . . The weight to be accorded such testimony is for the trier to decide. . . . Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 35, 664 A.2d 719 (1995).” (Internal quotation marks omitted.)
Donshik v. Donshik
miscellaneous business records,” which the court found
to be “neither persuasive nor credible.”
Before issuing its financial orders, the trial court noted
that the “[t]he distance between the parties’ proposed
financial orders borders on the infinite; their proposals
reflect fundamentally different views of the world. The
[defendant’s] proposed orders are rooted in a fact based
reality in which Rollcage is defunct and he is struggling
to find permanent employment. The [plaintiff’s] are
rooted in a view of the world in which Rollcage is worth
millions of dollars, and the [defendant’s] earning capacity is more than double what he ever earned from Rollcage
in two decades.”
In issuing its property orders, the trial court noted that
it considered all of the statutory factors under General
Statutes § 46b-81 (c)10 and gave particular weight to the
defendant’s primary responsibility for the extraordinary
marital debt. The court also noted that it gave significant weight to each party’s ability to pay the marital debt.
It ordered that the defendant be solely responsible for
the credit card debt, tax debt and other liabilities listed on his financial affidavit. It further ordered that the
plaintiff be solely responsible for the debts listed on her financial affidavit, “provided that the [defendant] shall
indemnify the [plaintiff] for any liability imposed by
the final judgment of a court concerning the Citibank
credit card debt . . . but only if the judgment is based on a finding that the [defendant] fraudulently opened the
account in [her] name.”
10
General Statutes § 46b-81 governs the assignment of property in a dissolution action and provides in relevant part: “(c) . . . [T]he court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
Donshik v. Donshik
With respect to alimony, the trial court likewise considered all of the statutory factors set forth in General
Statutes § 46b-82.11 The court stated that the plaintiff
was in need of alimony and that, if “the parties had limited debt, the court would be inclined to order that the
[defendant] pay alimony (combined with child support)
in an amount equal to 35 to 40 percent of the parties’
combined net incomes, based on their earning capacities.
However, equity requires an adjustment in consideration
of the marital debt. The court shall order the [defendant]
to pay $200 in weekly alimony. When the minor child is no
longer eligible for child support, the alimony obligation
shall increase to $500 per week. These amounts are subject to a motion to modify based on substantial changes
in the parties’ financial circumstances, including the
discharge in bankruptcy of either party’s personal debts.”
After issuing its orders of custody, child support,
property division, and alimony in the dissolution claim,
the trial court addressed the tort claims. With respect to
the conversion count, the court noted that the plaintiff
had alleged that she and the defendant were co-owners
of the Schwab brokerage account12 (Schwab brokerage
accounts), which raised “the question of whether a coowner of a bank account can ‘steal’ it from the other
11
General Statutes § 46b-82 governs the award of alimony in a dissolution action and provides in relevant part: “(a) . . . In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”
12
We note that the plaintiff’s operative complaint alleges that the defendant converted “at least two large accounts” with Schwab. In addition, the defendant’s January 2022 financial affidavit lists two brokerage accounts with Schwab, in addition to one IRA account with Schwab. Accordingly, it appears that the court’s reference to the Schwab brokerage account as a singular account was a scrivener’s error. For clarity, all references in this opinion to the Schwab brokerage accounts are to the joint brokerage accounts the parties held with Schwab only and not to the defendant’s IRA account, which the court held was solely owned by the defendant.
Donshik v. Donshik
owner by making withdrawals without the other coowner’s knowledge or consent.” The court noted that
General Statutes (Rev. to 2019) § 36a-29013 provides that
joint owners of a bank account have an undivided interest
in the entire account. The court concluded that, under
Connecticut law, “a co-owner of an account cannot be
held liable for conversion of the funds in the account.”14
As to the plaintiff’s claim of negligent infliction of
emotional distress, the trial court stated that “it [had]
13
General Statutes (Rev. to 2019) § 36a-290 provides in relevant part: “(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. Any such payment constitutes a valid and sufficient release and discharge of such bank, Connecticut credit union or federal credit union, or its successor, as to all payments so made.
“(b) The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds. . . .”
All references in this opinion to § 36a-290 are to the 2019 revision of the statute.
14
With respect to the plaintiff’s remaining allegations in the second count of the operative complaint, the trial court found that the defendant had borrowed against the insurance policy for legitimate family and business purposes. The court further found that, “[w]hile the divorce proceedings were pending, and after the [defendant] moved out of the marital home, a bill for the annual policy premium came to the marital home. Unaware of the bill, the [defendant] did not pay the annual premium. Nor did the [plaintiff]. The failure to pay the premium resulted in the policy lapsing. . . . These facts do not support a claim for conversion.” Regarding the plaintiff’s allegations of money taken from the family safe, from the other bank accounts, and from the defendant’s IRA, the court found that the plaintiff was not the owner of the IRA, and, therefore, she did not hold legal title to that account and, furthermore, that she failed to prove by a preponderance of the
Donshik v. Donshik
serious concerns about turning distressing conduct during a marriage into an emotional distress claim. . . .
However, nothing in Connecticut state law categorically
bars such a claim between married persons.” The court
concluded that the plaintiff “has proved the elements
of negligent infliction of emotional distress by a preponderance of the evidence. The court finds: (1) that the
[defendant] should have realized that his efforts to save
Rollcage by depleting family assets and running up large
credit card debts without the [plaintiff’s] knowledge
created an unreasonable risk of causing the [plaintiff]
emotional distress; (2) the [plaintiff] did, in fact, suffer, and continues to suffer, severe emotional distress, including overwhelming anxiety and persistent sleeplessness;
(3) and the emotional distress was so severe that it might
have resulted in illness.” The court, however, found
that “the evidence [the plaintiff] presented to support
her negligent infliction claim was also presented during
the divorce trial as relevant to the statutory factors in
. . . §§ 46b-81 and 46b-82, particularly the requirement
that the court consider the causes for the dissolution of
the marriage. On the basis of this evidence, the court
has found [the defendant] primarily at fault for the
breakdown of the marriage. The court gave significant
weight to this factor in its financial orders. To award [the plaintiff] significant general damages for her negligent
infliction claim would penalize [the defendant] twice,
and reward [the plaintiff] twice, for the same underlying conduct.” Accordingly, the court held that the
plaintiff could not recover more than nominal damages
with respect to this claim.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The plaintiff first claims that the trial court improperly
precluded her expert witness from testifying concerning
evidence that she alone owned the funds in the family safe and the remaining bank accounts from which the defendant withdrew moneys without her knowledge or consent. The plaintiff does not challenge these findings on appeal.
Donshik v. Donshik
the value of Rollcage. Specifically, the plaintiff argues
that the court relied on a “purported ruling . . . that
does not appear to exist in the record. This nonexistent
ruling formed the foundation of the court’s exercise of
its discretion. Consequently, the trial court could not
have ‘reasonably concluded as it did’ because it unreasonably relied on an order or ruling that was not part of the
case.” The defendant argues that the plaintiff’s claim is
without merit because “(1) she has an inadequate record
and/or inadequate briefing to raise this issue; (2) she did not properly preserve this issue in the trial court; [and]
(3) the court acted within its discretion to limit the testimony of the plaintiff’s expert . . . .” In her reply brief, the plaintiff asserts that the record is adequate for review because the error is evident from the transcript of the
proceedings and that “there is no need for this court ‘to
guess at possibilities’ or to ‘speculate as to the reasoning of the trial court or to presume error from a silent
record.’ ” We conclude that the plaintiff’s unfounded
assertion, which finds no support in the record, has no
basis in fact or law.
The following additional facts and procedural history
are relevant to this claim. The record reflects extensive
and contentious discovery disputes during this protracted litigation. On September 1, 2021, the court,
Hon. Constance L. Epstein, judge trial referee, appointed
a discovery special master pursuant to Practice Book
§ 25-32B.15 In its order, the court indicated that “[a]ll
pending and future discovery issues shall be presented
to the special master, who shall have authority to recommend resolution of any discovery disputes. The special
master’s recommendations may be accepted and adopted
as orders of the court without further hearing.” On
December 8, 2021, the defendant filed a request for a
15
Practice Book § 25-32B provides: “The judicial authority may appoint a discovery special master to assist in the resolution of discovery disputes. When such an appointment is made, the judicial authority shall specify the duties, authority and compensation of the discovery special master and how that compensation shall be allocated between the parties.”
Donshik v. Donshik
status conference to address outstanding discovery matters that may need court intervention, and a hearing was
held on January 12, 2022. After the hearing on January
12, 2022, the court issued a written order in which it
noted that, “[a]s of the date of today’s hearing, the parties were still in the midst of exchanging documents,
some just a short time prior to the commencement of the
hearing . . . .” It then ordered that “[t]he effect of any
claimed deficit in pretrial disclosure will be left to the
trial judge, if any, when such deficit is claimed during
the course of trial.”
On February 1, 2022, the first day of trial, the plaintiff’s counsel, Timothy J. McGuire, filed a motion in
limine seeking an order precluding the defendant from
entering financial evidence at trial and for attorney’s
fees for failing to comply with discovery. In the motion,
McGuire asserted, inter alia, that, at the defendant’s
deposition, the defendant testified that he did not produce large amounts of discovery that he was obliged
to produce and made little to no efforts to provide the
outstanding production. On February 1, 2022, the court
addressed the plaintiff’s motion as a preliminary matter, and McGuire represented that counsel had met with
Judge Epstein “off the record” a few times prior to the
January 12, 2022 order. He further argued that, “when
there’s substantial noncompliance with discovery that
materially [a]ffects a litigant’s ability to present her
case . . . then the remedy would be either, in a civil case, a nonsuit or a directed verdict.” He maintained that, “[i]n a case such as this, I think the only remedy the court can
fashion that’s reasonable would be to exclude the defendant from offering any evidence on financial matters.”
During arguments on the motion, the court noted that
the most significant asset that it had to address, aside
from the marital home,16 was the defendant’s business,
and it further noted that there had never been a disclosure of a business valuation expert by the plaintiff.
McGuire conceded that he had never disclosed a business
16
The marital home was sold during the pendency of this action, and the distribution of the asset is not subject to this appeal.
Donshik v. Donshik
valuation expert but maintained that it had been premature because the information necessary to create even a
very “footnoted” appraisal was not made available until
January 7, 2022. After arguments on the motion, the
court determined that it was not going to decide the
plaintiff’s motion in limine but, instead, indicated that
it would take the motion under advisement.
The plaintiff thereafter hired new counsel, Shawna
Hamilton Doster and Charles D. Houlihan, Jr. At a hearing on June 14, 2022, the trial court noted that it “still
remain[ed] nervous . . . about an issue that has been
central to the case and on which the parties have very,
very different positions, and it has to do with the valuation of the business. And here we are in the middle of the
trial, and it’s still very much an open issue.” The court
further stated that the defendant’s counsel “[has] consistently represented that the business is for all intents
and purposes . . . defunded and has no meaningful value.
And [the plaintiff’s] prior counsel has repeatedly insisted that, two things, they don’t have enough independent
information in the form of access to the books and records
of the business to come to their own conclusions. And
therefore . . . there’s a big question mark in their view
as to whether the company has any value.” The court
inquired of the defendant’s counsel as to the status of
Rollcage’s books. The defendant’s counsel represented
that the defendant was working with an accountant to
complete unfiled tax returns for Rollcage. The plaintiff’s
counsel argued that the plaintiff “should get equal access
to all of those documents so that we can form our own
valuation” and that they had “zero” information, “not
even from QuickBooks,”17 to perform an evaluation of
Rollcage.
On July 1, 2022, the plaintiff filed a motion to compel
production of Rollcage’s QuickBooks records. In her
motion to compel, the plaintiff alleged that the defendant “continues to refuse to produce his company’s
QuickBooks despite repeated properly filed requests
17
The record reflects that QuickBooks is a brand of accounting software.
Donshik v. Donshik
and demands by a special master and judge.” (Emphasis
omitted.)
On July 12, 2022, the trial court held a hearing on,
inter alia, the plaintiff’s motion to compel. At the hearing, the court stated that “the representation by [the
defendant] has always been the business has no value.
It was a dying business, and now it’s a dead business.
And it has no value. And why would we spend any time
at trial or in discovery trying to value a dead business
. . . . How is looking at QuickBooks going to help . . . ?” The court further noted that it was “willing to consider
[the request] if you have an expert . . . authorizing the
expert to inspect electronically the QuickBooks. . . . But
if there’s no expert, then this is just . . . the most classic fishing expedition that I can . . . imagine.” Moreover, the court noted that, “if you’re willing to file a document on
the docket that says . . . [James] Russell is your expert,
but if we’re going to file . . . develop an opinion, he needs to review . . . QuickBook[s] materials, then, subject to
hearing objections from [the defendant’s counsel], I
would be inclined to grant him access.”
On July 14, 2022, the plaintiff disclosed Russell as an
expert witness. In her expert disclosure, the plaintiff
indicated that Russell “is a certified public accountant
retained . . . to provide his expert opinion to aid the
court on (1) the valuation of the defendant’s business,
Rollcage . . . (2) assess the viability of the defendant’s
business; (3) assess the validity of its claimed/intended
bankruptcy; and (4) evaluate the credibility of the reason
for the dissolution of the company.” Additionally, on
July 14, 2022, the plaintiff filed an amended motion to
compel production of the defendant’s QuickBooks and
other documents requested by her expert.
On August 9, 2022, the plaintiff filed a motion for
contempt in which she sought an order for sanctions for
the defendant’s failure to comply with discovery. The
court summarily denied the motion. On August 9, 2022,
the court issued a separate order in which it ordered the
Donshik v. Donshik
defendant to designate Russell as an “authorized accountant on the Rollcage QuickBooks accounts.”
On October 5, 2022, the plaintiff served the defendant
with a new set of interrogatories, requests for production, and requests for admission. On October 20, 2022,
the defendant filed a notice of compliance with the plaintiff’s October 5, 2022 discovery request.
On October 22, 2022, the defendant filed a motion in
limine seeking to preclude any testimony from Russell
on the ground that the plaintiff’s expert disclosure did
not comply with Practice Book § 13-4.18 Specifically, the
defendant alleged that the plaintiff’s disclosure informed
him “of the subjects upon which the expert is expected
to testify but does not put the defendant on notice of
the actual opinions reached by the expert. . . . Rather,
18
Practice Book § 13-4 provides in relevant part: “(a) A party shall disclose each person who may be called by that party to testify as an expert witness at trial . . . .
“(b) A party shall file with the court and serve upon counsel a disclosure of expert witnesses which identifies the name, address and employer of each person who may be called by that party to testify as an expert witness at trial, whether through live testimony or by deposition. In addition, the disclosure shall include the following information:
“(1) . . . [T]he field of expertise and the subject matter on which the witness is expected to offer expert testimony; the expert opinions to which the witness is expected to testify; the substance of the grounds for each such expert opinion; and the written report of the expert witness, if any. . . .
“(3) . . . [T]he party disclosing an expert witness shall, upon the request of an opposing party, produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case within fourteen days prior to that expert’s deposition . . . .
“(c) (1) Unless otherwise ordered by the judicial authority upon motion, a party may take the deposition of any expert witness disclosed pursuant to subsection (b) of this section . . . .
“(h) A judicial authority may, after a hearing, impose sanctions on a party for failure to comply with the requirements of this section. An order precluding the testimony of an expert witness may be entered only upon a finding that: (1) the sanction of preclusion, including any consequence thereof on the sanctioned party’s ability to prosecute or to defend the case, is proportional to the noncompliance at issue, and (2) the noncompliance at issue cannot adequately be addressed by a less severe sanction or combination of sanctions. . . .”
Donshik v. Donshik
the plaintiff only has identified, in cursory fashion, the
subject matter of her expert’s alleged opinions.”
On October 25, 2022, the trial court heard arguments
on the defendant’s motion to preclude. At the outset,
the court noted that the “main issue . . . is that the disclosure of . . . Russell as an expert doesn’t identify any
opinions.” The plaintiff’s counsel conceded that they were
in possession of the business’ QuickBooks; however, their
expert did not have an opinion on the value of Rollcage
but, rather, had an opinion as to “how the books were
prepared.” The court indicated that it was going to take
the parties’ arguments into consideration and issue its
decision the next day.
On October 26, 2022, the trial court issued an oral
ruling on the defendant’s October 22, 2022 motion in
limine in which it granted the motion in part and denied
it in part. The court ordered that the motion is “granted
to the extent that . . . Russell might, if given more time, [be] in a position to offer an opinion on the value of Rollcage, there will be no testimony from . . . Russell on the
value of Rollcage. And the court finds that the factors
set forth in [Practice Book §] 13-4 (h) are satisfied here.
“This case has been pending [f]or a very long time.
We all understood that the . . . value of Rollcage has
been a disputed issue . . . from the inception of this case. This court previously made a ruling that prior counsel,
that’s counsel before . . . Houlihan [and] Hamilton Doster
became involved in this case, had responded to—had
adequately responded to discovery requests for books
and records of Rollcage, and it’s the court’s [firm] opinion that the discovery that was—it had—the court has
found was sought for and produced, was sufficient for
an expert to provide an opinion on value if an expert was
going to do so.
“So, at this point, the preclusion of an opinion of value
from . . . Russell is proportional to the noncompliance
at issue. There’s simply no credible excuse in the court’s
Donshik v. Donshik
opinion for not having an opinion of value at this time,
by this time.
“And as to whether or not the noncompliance could be
addressed by a less severe sanction . . . this trial started almost a year ago, nine months ago. We’re deep into the
heart of the trial, and . . . I will not tolerate any further delay on this issue, and I do not believe that the noncompliance could be addressed by a sanction less severe than
the one I imposed.”
In its memorandum of decision, the trial court noted
that the present action had been pending for more than
three years. One of the contributing factors for the delay
was that “five different law firms represented the plaintiff at different times during this case, including a change in counsel after three days of trial in February 2022. . . . At times, she even represented herself. But every time
she changed counsel, the new counsel appeared in the
case without the in-depth knowledge of the case history,
including discovery, that prior counsel had acquired.
This led to delays and to motions and arguments by new
counsel19 that the defendant had not fully complied with
the plaintiff’s discovery requests. The court repeatedly
determined that the defendant had substantially complied with all discovery requests.” (Footnote altered.)
Moreover, the court noted that, “[a]lthough the [plaintiff], through the different counsel that represented
her during trial, complained that the [defendant] had
not provided her with access to Rollcage’s books and
records for the purpose of forming an opinion of value,
the court squarely rejected that complaint during trial
on multiple occasions.”
We begin with our standard of review. “It is well
accepted that we . . . [review] the action of the trial court in imposing sanctions for failure to comply with its orders regarding discovery under a broad abuse of discretion
standard. . . . As with any discretionary action of the
trial court, appellate review requires every reasonable
presumption in favor of the action, and the ultimate
19
New counsel were McGuire Family Law, LLC, and Hamilton Doster.
Donshik v. Donshik
issue for us is whether the trial court could have reasonably concluded as it did. . . . In reviewing a claim that
the court has abused this discretion, great weight is
due to the action of the trial court and every reasonable
presumption should be given in favor of its correctness
. . . . The determinative question for an appellate court
is not whether it would have imposed a similar sanction
but whether the trial court could reasonably conclude
as it did given the facts presented. Never will the case
on appeal look as it does to a [trial court] . . . faced with the need to impose reasonable bounds and order on discovery. . . . Under an abuse of discretion standard, a
court’s decision must be legally sound and [the court]
must [have] honest[ly] attempt[ed] . . . to do what is right and equitable under the circumstances of the law, without the dictates of whim or caprice.” (Citations omitted;
internal quotation marks omitted.) Gianetti v. Neigher,
214 Conn. App. 394, 437–38, 280 A.3d 555, cert. denied,
345 Conn. 963, 285 A.3d 390 (2022).
“Practice Book § 13-4 (h) provides a trial court with the
authority to impose sanctions on a party for [the party’s]
failure to comply with the disclosure requirements set
forth in § 13-4, such as the requirement that a party
must disclose the expert witnesses it may call to testify
at trial . . . or the requirement that a party must file an expert disclosure identifying, inter alia, the expert witness, the subject matter on which the expert is expected
to testify, and the substance of the grounds for each
expert opinion. . . . An order precluding the testimony of
an expert witness, [however] may be entered only upon
a finding that: (1) the sanction of preclusion, including
any consequence thereof on the sanctioned party’s ability to prosecute or to defend the case, is proportional
to the noncompliance at issue, and (2) the noncompliance at issue cannot adequately be addressed by a less
severe sanction or combination of sanctions. . . . As our
Supreme Court has reiterated, the sanction imposed must
be proportional to the violation. This requirement poses
a question of the discretion of the trial court that we will review for abuse of that discretion. . . . In considering
Donshik v. Donshik
whether the sanction was proportional to the plaintiff’s
failure to comply with the disclosure requirements set
forth in § 13-4 and his discovery abuse, we are guided by
the factors [our Supreme Court] . . . ha[s] employed when
reviewing the reasonableness of a trial court’s imposition
of sanctions: (1) the cause of the [party’s] failure to [comply with the disclosure rules and the party’s discovery
abuse], that is, whether it [was] due to inability rather
than the [wilfulness], bad faith or fault of the [party] . . . (2) the degree of prejudice suffered by the opposing party
. . . and (3) which of the available sanctions would, under the particular circumstances, be an appropriate response
to the disobedient party’s conduct.” (Citations omitted;
internal quotation marks omitted.) Id., 438–39.
Additionally, “[a]s a general matter, it is incumbent on
the appellant to provide an adequate record for review.
See Practice Book § 61-1020 . . . . To the extent that the
court’s decision is ambiguous . . . it [is] [the appellant’s] responsibility to seek to have it clarified. . . . [O]ur appellate courts often have recited, in a variety of contexts,
that, in the face of an ambiguous or incomplete record,
we will presume, in the absence of an articulation, a trial court acted correctly, meaning that it undertook a proper
analysis of the law and made whatever findings of the
facts were necessary.” (Citations omitted; emphasis in
original; footnote added; internal quotation marks omitted.) Doe v. Bemer, 215 Conn. App. 504, 517, 283 A.3d
1074 (2022). “It is well established that [a]n articulation is appropriate where the trial court’s decision contains
some ambiguity or deficiency reasonably susceptible of
clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court
rendered its decision, thereby sharpening the issues on
appeal. . . . In other words, an articulation elaborates
upon, or explains, a matter that the trial court decided. . . .
20
Practice Book § 61-10 (a) provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire record is complete, correct and otherwise perfected for presentation on appeal. . . .”
Donshik v. Donshik
A motion for rectification, by contrast, is appropriate
when the record must be modified or augmented in some
fashion. A motion for rectification can be used to make
(1) additions to the record, (2) corrections to the record
or (3) deletions from the record. The motion cannot be
used to add new matters to the record that were not presented at trial.” (Citations omitted; internal quotation
marks omitted.) State v. Walker, 319 Conn. 668, 680,
126 A.3d 1087 (2015).
In the present case, we disagree with the plaintiff’s
argument that the trial court relied on a purported ruling that does not appear to exist in the record because we
conclude that she has provided an inadequate record for
our review. It is clear that the plaintiff’s alleged missing order is not amenable to articulation because it does
not exist in the record and, therefore, cannot be clarified. Any alleged deficiency in the record may have been
remedied by a motion for rectification. The record could
have been augmented to include matters that occurred
off the record. Under such circumstances, rectification
is the appropriate method of perfecting the record, and
the plaintiff failed to do so.
To the extent the plaintiff argues that the record is
adequate for review because the error is evident from
the transcripts of the proceedings, we conclude that the
record does not lack the factual or legal basis on which
the trial court rendered its ruling granting in part the
defendant’s October 22, 2022 motion in limine, and
we further conclude that the court did not abuse its
discretion in precluding her expert from testifying as
to the value of Rollcage. The record does reflect that,
on February 1, 2022, the first day of trial, the plaintiff
conceded that she did not have an expert on the valuation
of Rollcage. On June 14, 2022, after new counsel became
involved during the middle of trial, the court explained
that it “still remain[ed] nervous . . . about an issue that has been central to the case and on which the parties have
very, very different positions, and it has to do with the
valuation of the business.” On July 12, 2022, the court
Donshik v. Donshik
noted its willingness to order the disclosure of Rollcage’s QuickBooks if the plaintiff disclosed an expert. On July
14, 2022, the plaintiff disclosed Russell as an expert to
provide an opinion of the value of Rollcage. On August
9, 2022, the court ordered the defendant to designate
Russell as an authorized accountant on the Rollcage
QuickBooks account.
On October 26, 2022, the trial court granted in part
the defendant’s October 22, 2022 motion in limine seeking to preclude Russell from testifying as to the value
of Rollcage. In doing so, the court considered and found
that the factors set forth in Practice Book § 13-4 (h) had
been satisfied. The court noted that the present case had
been pending for a “very long time” and that the value
of Rollcage had been in dispute from the inception of
the case. The court further noted that it had previously
ruled that the defendant had adequately responded to
the plaintiff’s discovery requests for books and records
of Rollcage and that those disclosures had been sufficient for an expert to provide an opinion on the value
of Rollcage if an expert was going to do so.21 The court
concluded that its sanctions order precluding Russell
from testifying as to the value of Rollcage was proportionate to the noncompliance with the disclosure. The
court stated that “[t]here’s simply no credible excuse in
the court’s opinion for not having an opinion of value
at this time, by this time.” We conclude that the court’s
sanctions order was a reasonable exercise of the court’s
inherent authority to manage its own docket.
Accordingly, on the basis of our review of the record,
we cannot conclude that the trial court abused its broad
21
In stating that it previously ruled that the defendant had adequately responded to the plaintiff’s discovery requests, the trial court did not specify the specific ruling to which it was referring. As noted previously, however, in its memorandum of decision, the court stated that it had “repeatedly determined that the defendant had substantially complied with all discovery requests.” As one example, the court pointed to its denial of the plaintiff’s motion for contempt for alleged discovery violations, in which she sought voluminous documents from the defendant. Among other things, the plaintiff’s motion for contempt sought additional records concerning Rollcage, including QuickBooks records.
Donshik v. Donshik
discretion in precluding testimony from the plaintiff’s
expert witness concerning the value of Rollcage.
II
The plaintiff next claims that the trial court improperly limited her direct examination of the defendant.22
Specifically, the plaintiff claims for the first time on
appeal that the court violated her procedural due process
rights. We conclude that the plaintiff’s due process claim
was not adequately briefed, and, therefore, we decline
to review it.
The following additional procedural history is relevant
to this claim. On January 11, 2023, at the commencement
of the seventh day of trial, the court informed the parties that it was considering bifurcating the dissolution
count in the plaintiff’s amended complaint from the civil
tort counts because it was concerned that the parties
had not concluded evidence on the dissolution count.
As a preliminary matter, the court asked the plaintiff’s
counsel to identify the remaining witnesses she intended
to call on the dissolution count, and counsel indicated
that she wanted to continue with her direct examination
of the defendant. A colloquy ensued between the court
and counsel for both parties as to whether the plaintiff’s
counsel had concluded her direct examination of the
defendant. The court agreed with the plaintiff’s counsel that she had not completed her direct examination
of the defendant on the dissolution count and inquired
of counsel how much time she needed to complete her
examination of the defendant, to which she responded,
“I actually don’t know. A day.” The court noted that, “on
the 26th of October . . . [the defendant testified] all day, [as] the only witness . . . .” The court then stated: “I am going to give you three more hours with [the defendant]
to complete your direct examination in the divorce case
. . . .” The plaintiff’s counsel responded that she did not “think that’s equitable, given that my client was on the
[witness] stand for two and [one-half] days on her direct
22
The plaintiff called the defendant as an adverse witness.
Donshik v. Donshik
[examination].” In response, the court stated: “You’ll
have had more than a day or so with [the defendant] in
the divorce case. I’m giving you another three hours.”
The plaintiff’s counsel then promptly objected, noting
that “I think that is prejudicial to [the plaintiff].”
In her principal appellate brief, the plaintiff argues
that the trial court violated her “constitutionally protected right to present evidence on contested factual
issues” by placing “an arbitrary limit of three hours on
any further direct examination [of the defendant].” The
defendant maintains that the plaintiff did not preserve
her due process claim, and, therefore, it is unreviewable.
We decline to review this claim because it is inadequately
briefed.
“It is well settled that [m]atters involving judicial
economy, docket management [and control of] courtroom
proceedings . . . are particularly within the province of
a trial court. . . . Connecticut trial judges have inherent discretionary powers to control proceedings, exclude
evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. . . . The [trial] court has wide latitude in docket control and
is responsible for the efficient and orderly movement
of cases. . . . The trial court has inherent authority to
control the proceedings before it to ensure that there
[is] no prejudice or inordinate delay. . . .
“In reviewing the court’s exercise of its discretion, we
are mindful that [d]iscretion imports something more
than leeway in decision-making. . . . It means a legal
discretion, to be exercised in conformity with the spirit
of the law and in a manner to subserve and not to impede
or defeat the ends of substantial justice. . . . In addition, the court’s discretion should be exercised mindful of the
policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant
his day in court.” (Citations omitted; internal quotation
marks omitted.) Ill v. Manzo-Ill, 210 Conn. App. 364,
374–75, 270 A.3d 108, cert. denied, 343 Conn. 909, 273
A.3d 696 (2022).
Donshik v. Donshik
“A fundamental premise of due process is that a court
cannot adjudicate any matter unless the parties have
been given a reasonable opportunity to be heard on the
issues involved . . . . Generally, when the exercise of the court’s discretion depends on issues of fact which are
disputed, due process requires that a trial-like hearing
be held, in which an opportunity is provided to present
evidence and to cross-examine adverse witnesses. . . . It
is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States
constitution and article first, § 10, of the Connecticut
constitution that persons whose . . . rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. . . . Whe[n] a
party is not afforded an opportunity to subject the factual determinations underlying the trial court’s decision to
the crucible of meaningful adversarial testing, an order
cannot be sustained. . . . Accordingly, a court does not
have the right to terminate [a] hearing before [the parties have] had a fair opportunity to present evidence on the
contested issues.” (Citation omitted; internal quotation
marks omitted.) Id., 376–77. This court has further clarified that “[a] party’s constitutionally protected right to
present evidence [however] is not unbounded. . . . To the
contrary, we previously have determined that the court
reasonably may limit the time allowed for an evidentiary
hearing.” (Internal quotation marks omitted.) Dicker v.
Dicker, 189 Conn. App. 247, 265, 207 A.3d 525 (2019).
In the present case, the plaintiff’s counsel objected to
the trial court’s order limiting her examination of the
defendant. Counsel’s objection, however, was based on
prejudice. The plaintiff’s counsel did not argue before
the court that its decision to restrict her direct examination of the defendant violated the plaintiff’s due process
rights, or any other constitutionally protected rights. In
her reply brief, the plaintiff acknowledges that her trial
counsel did not use the words “due process” as part of her
objection; however, she maintains that trial counsel’s
assertion that the court’s limitation was “prejudicial
Donshik v. Donshik
to her client” was sufficient to make clear that she was
invoking due process principles.
The plaintiff devotes two pages to this claim in her
principal appellate brief. Therein, the plaintiff does not
attempt to demonstrate, by reference to the trial court
record, why the court’s ruling amounted to an abuse of
its discretion, let alone a constitutional violation, in light of the principles previously set forth. Instead, she asserts in a conclusory fashion that the ruling deprived her of
her right to due process. “[W]e are not required to review
claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue
by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error
raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse
the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without
analyzing the relationship between the facts of the case
and the law cited.” (Internal quotation marks omitted.)
Paoletta v. Anchor Reef Club at Branford, LLC, 123
Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298
Conn. 931, 5 A.3d 491 (2010). For the foregoing reasons,
we decline to review this claim.23
III
The plaintiff next claims that the trial court improperly
awarded only nominal damages on her claim of negligent
infliction of emotional distress. The plaintiff argues that the court’s decision was improperly “premised on the
court’s property division orders in the marital dissolution 23
Because we conclude that the claim is not adequately briefed, we need not consider whether it is reviewable under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015); see State v. Abramovich, 229 Conn. App. 213, 219, 326 A.3d 593 (2024) (“[w]e will not engage in Golding . . . review on the basis of . . . an inadequate brief” (internal quotation marks omitted)).
Donshik v. Donshik
count of the plaintiff’s complaint.” The defendant argues
that “the trial court acted within its sound discretion
when awarding nominal damages to the plaintiff for her
claim of negligent infliction of emotional distress.” The
defendant further argues that nominal damages were
appropriate “if the court felt that it fully compensated
the plaintiff for her harm through its dissolution orders”
because “it would have been error to award damages a
second time for the [negligent infliction of emotional
distress] claim” under the common-law rule precluding
double recovery. For the reasons that follow, we reject
the plaintiff’s claim.
The following additional facts and procedural history are relevant to the resolution of this claim. In its
memorandum of decision, the trial court found that the
plaintiff “has met her burden of proving, by a preponderance of the evidence, that she suffered severe emotional
distress when, in January 2020, she learned the full
extent of the family’s rapidly deteriorating financial
situation. Although the court questions her credibility on many other issues, it does not on this point. The
[defendant’s] failed decision to expand Rollcage, and
his efforts to save the company by running up credit
card debt and depleting other assets, have forced the
parties to sell the marital home, left the [plaintiff] and
younger children living in an apartment in Simsbury,
left the [plaintiff] with limited financial support, and
jeopardized two of the children’s college education.” The
court noted that “[p]arties to a marriage often say or do
things that are hurtful to each other. They may make
poor choices—have an affair, gamble, abuse alcohol or
drugs—that cause serious emotional and financial harm
to a partner. Any court should think long and hard before
setting a precedent that would transform many divorce
cases into emotional distress tort claims.”
With respect to the plaintiff’s negligent infliction of
emotional distress claim, the trial court noted that “a
plaintiff must show ‘that the defendant should have
realized that [his] conduct involved an unreasonable risk
Donshik v. Donshik
of causing emotional distress and that [the] distress, if
it were caused, might result in illness or bodily harm.’ ”
(Emphasis in original.) The court reiterated that “it
has serious concerns about turning distressing conduct
during a marriage into an emotional distress tort claim.
Too many marriages involve conduct that satisfies the
element of a negligent infliction of emotional distress
claim.” The court, however, determined that “nothing
in Connecticut state law categorically bars such a claim
between married persons.”
Accordingly, the trial court concluded that the plaintiff had proved the elements of negligent infliction of
emotional distress by a preponderance of the evidence.
The court noted that “[t]his conclusion gives rise to a
dilemma of sorts. Having found in favor of the [plaintiff]
on her negligent infliction claim, she is entitled to an
award of general damages for the emotional distress.24
Yet, virtually all of the evidence that the [plaintiff] presented to support her negligent infliction [of emotional
distress] claim was also presented during the divorce
trial as relevant to the statutory factors in . . . §§ 46b-81 and 46b-82, particularly the requirement that the court
consider the causes for the dissolution of the marriage.
On the basis of this evidence, the court has found the
[defendant] primarily at fault for the breakdown of the
marriage. The court gave significant weight to this factor
in its financial orders. To award the [plaintiff] significant general damages for her negligent infliction [of emotional
distress] claim would penalize the [defendant] twice, and
reward the [plaintiff] twice, for the same underlying
conduct.” (Footnote in original.)
The court further noted it was “mindful that,
‘[a]lthough in a dissolution action, the trial court must
24
“The [plaintiff] also seeks an award of actual damages based primarily on the amount of time that she spent dealing with credit card companies to repair her credit history. However, the [plaintiff] failed to prove her claim that the [defendant] fraudulently opened credit cards in her name. Thus, her alleged actual damages are tied to conduct that is not the basis of the court’s liability ruling on the negligent infliction claim. Accordingly, the [plaintiff] has not proved that she is entitled to actual damages.”
Donshik v. Donshik
consider the conduct of the parties, the judgment in a
dissolution action does not provide direct compensation
as such to a party for injuries suffered during the marriage.’ Delahunty v. Massachusetts Mutual Life Ins.
Co., [236 Conn. 582, 593, 674 A.2d 1290 (1996)]. ‘A tort
action, the purpose of which is to redress a legal wrong by an award of damages, is not based on the same underlying
claim as an action for dissolution, the purpose of which
is to sever the marital relationship, to fix the rights of
the parties with respect to alimony and child support,
and to divide the marital estate.’ Id., 592.”
The trial court concluded that, “[u]nder the admittedly
unique circumstances of this case . . . the [plaintiff] cannot recover more than nominal damages for her emotional
distress claim. She made a tactical choice to argue that
the [defendant] was primarily at fault for the breakdown
of the [marriage] and the accumulation of marital debt on
the basis of the same conduct underlying her negligent
infliction claim. The court found that the [defendant] was
primarily at fault for most of the reasons the [plaintiff]
asserted. The court has taken that fault into account in
fashioning its financial orders, which are far more favorable to the [plaintiff than] they would have been had fault not been an issue. Having effectively compensated the
[plaintiff] through its financial orders in the dissolution case, the court will award only nominal damages for the
negligent infliction claim.”
In her principal brief, the plaintiff argues that the
trial court improperly awarded her only nominal damages “because it treated its alimony award to her (and
possibly the allocation of marital debts) as an effective
substitute for damages in civil tort. . . . In making its
equitable orders, the trial court limited itself to the
factors and purposes set forth in our marital dissolution statutes. It did not consider the broader policies of
tort compensation, such as ‘deterrence of wrongful conduct’ and ‘admonition of the wrongdoer.’ ” Additionally,
she maintains that, “in crafting its dissolution orders,
the trial court was limited by what it believed to be the
Donshik v. Donshik
marital estate of the parties and the defendant’s ability
to pay. . . . By substituting the equitable distribution
orders for an award of damages on the plaintiff’s [negligent infliction of emotional distress] claim, the trial
court impermissibly limited the amount the plaintiff
could recover on her tort claim by what the tortfeasor
was able to pay. Thus, the trial court’s decision to award
the plaintiff only nominal damages is legally erroneous.”
(Citation omitted.) We are not persuaded.
We begin with the standard of review that governs
our resolution of this claim. The parties disagree over
the proper standard of review that applies to this claim.
The plaintiff contends that the “court’s award of nominal damages was premised on its misapprehension of
the law and should therefore be subjected to plenary
review.” The defendant counters that a court “is vested
with broad discretion in determining whether damages
are appropriate” and that the court’s award of nominal
damages should be reviewed under the abuse of discretion
standard. (Internal quotation marks omitted.) Although
we agree with the defendant that a challenge to an award
of damages is generally governed by the abuse of discretion standard of review, we understand the plaintiff’s
claim to be that the trial court applied an improper legal
standard in determining damages. A claim that the trial
court applied an improper legal standard in its damages
determination presents a question of law over which we
exercise plenary review. See, e.g., AGW Sono Partners,
LLC v. Downtown Soho, LLC, 343 Conn. 309, 342, 273
A.3d 186 (2022).
In its memorandum of decision, the trial court made
clear that it was mindful that, in a dissolution action, a
court must consider the conduct of the parties and that
the judgment in a dissolution action does not provide
direct compensation to a party for injuries suffered
during the marriage. It made clear that the purpose of
a tort action was to redress a legal wrong by an award of
damages and that the purpose of a dissolution action was
to fix the rights of the parties with respect to alimony,
Donshik v. Donshik
child support and to divide the marital estate. After
correctly articulating the distinction between a dissolution action and a tort action, the court concluded
that, “[h]aving effectively compensated the [plaintiff]
through its financial orders in the dissolution case, the
court will award only nominal damages for the negligent
infliction claim.”
As discussed previously in this opinion, the parties
entered into a stipulation in which the plaintiff agreed
to waive her right to a jury trial on her tort claims, and
both parties agreed to try the issues presented in the dissolution action and the civil action simultaneously. There
is no claim before us that this procedure was improper,
and such a claim would be undermined by the parties’
own conduct at trial. We note, however, that trying these
distinct causes of action simultaneously, one equitable
in nature and the other legal in nature, presents challenges and unique considerations of which trial courts
should be aware.
These challenges are reflected in our Supreme Court’s
decision in Delahunty, in which the court considered
whether the doctrine of res judicata bars a party to
a dissolution action from bringing a postdissolution
action against a former spouse for damages incurred as
a result of conduct that occurred during the marriage.
Our Supreme Court concluded that “the policy considerations commonly advanced to justify the doctrine of
res judicata are not compelling in this context and that
it would be an inappropriate application of the principles
of res judicata to require tort actions based on claims
arising between married persons to be litigated in a dissolution proceeding. Furthermore, because there are
significant differences between a tort action and a dissolution action, the maintenance of a separate tort action
will not subject the courts and [the parties] to the type
of piecemeal litigation that the doctrine was intended
to prevent.” Delahunty v. Massachusetts Mutual Life
Ins. Co., supra, 236 Conn. 592.
Donshik v. Donshik
In so concluding, the court reasoned that, “[i]f claim
preclusion were applied to a postdissolution tort action,
there would be a strong incentive to parties in a dissolution action to raise and litigate every marital grievance
that might later form the basis of a possible tort action,
for fear of forfeiting the ability to do so later in the form of a tort action. In other words, if we were to hold that
claim preclusion bars the assertion of a postdissolution
tort action based on conduct that had occurred during
the marriage on the ground that it could have been raised
during the dissolution action, the clear message to lawyers and parties would be to raise in the dissolution action all such claims for fear of forfeiting any future cause of
action. This, in turn, would tend to make contested dissolution actions even lengthier and more acrimonious
and expensive than they already are. Such a decision
by this court could also tend to discourage settlement
of dissolution actions, because it would send the same
message to the parties. All this, in turn, would further
harm families, including the children, who are already
experiencing extraordinary emotional pain from the dissolution actions, and would be contrary to our established
policy to foster amicable marital dissolutions whenever
possible.” Id., 594.
In Delahunty, our Supreme Court favorably quoted a
decision of the Wisconsin Supreme Court that explained,
“ ‘[i]f an abused spouse cannot commence a tort action
subsequent to a divorce, the spouse will be forced to
elect between three equally unacceptable alternatives:
(1) Commence a tort action during the marriage and
possibly endure additional abuse; (2) join a tort claim
in a divorce action and waive the right to a jury trial on
the tort claim; or (3) commence an action to terminate
the marriage, [forgo] the tort claim, and surrender the
right to recover damages arising from spousal abuse. To
enforce such an election would require an abused spouse
to surrender both the constitutional right to a jury trial
and valuable property rights to preserve his or her wellbeing. This the law will not do. Although joinder is permissible, the administration of justice is better served
Donshik v. Donshik
by keeping tort and divorce actions separate.’ ” Id., 595
(quoting Stuart v. Stuart, 143 Wis. 2d 347, 352, 421
N.W.2d 505 (1988)).
Delahunty is distinguishable from the present case,
however, in that it involved a postdissolution action
brought by a former spouse. The court in Delahunty held
that “the doctrine of res judicata does not require all
issues between spouses to be litigated in the dissolution
proceeding” and that, to the extent the trial court in that case relied on the doctrine of res judicata to grant summary judgment foreclosing the plaintiff from litigating
her claim that the defendant had perpetrated a fraud,
such reliance was improper. Delahunty v. Massachusetts
Mutual Life Ins. Co., supra, 236 Conn. 598. Although
Delahunty reflects a preference that dissolution and tort
actions brought against a spouse be litigated separately,
the present case does not raise the concerns that the court addressed in Delahunty when joining a tort action with
a dissolution action. As we previously noted, the plaintiff commenced a tort action at the time the dissolution
action was pending, agreed that the tort action could be
joined with the dissolution action and elected to waive
her right to a jury trial in the tort action.
The trial court having permitted the dissolution and
tort actions to be tried simultaneously, we are now faced
with having to determine whether the court’s judgment,
which includes financial orders and equitable distribution of marital property pursuant to §§ 46b-81 and
46b-82, and an award of nominal damages on certain of
the tort counts, in which the court took into account its
financial orders when awarding such damages to avoid
double recovery, was proper. In awarding the plaintiff
nominal damages, the court reasoned: “Having found in
favor of the [plaintiff] on her negligent infliction claim, she is entitled to an award of general damages for the
emotional distress. Yet, virtually all of the evidence
that the [plaintiff] presented to support her negligent
infliction claim was also presented during the divorce
trial as relevant to the statutory factors in . . . §§ 46b-81
Donshik v. Donshik
and 46b-82, particularly the requirement that the court
consider the causes for the dissolution of the marriage.
On the basis of this evidence, the court has found the
[defendant] primarily at fault for the breakdown of the
marriage. The court gave significant weight to this factor
in its financial orders. To award the [plaintiff] significant general damages for her negligent infliction [of emotional
distress] claim would penalize the [defendant] twice, and
reward the [plaintiff] twice, for the same underlying
conduct.” (Footnote omitted.) The court’s award in this
case presents additional unique challenges with respect
to the issue of damages, particularly the application of
the common-law rule against double recovery when a dissolution action and tort action are tried simultaneously.
As our Supreme Court explained in Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71, 557 A.2d 540 (1989),
the “simple and time-honored maxim [is] that [a] plaintiff may be compensated only once for his just damages
for the same injury.” (Internal quotation marks omitted.) The court further stated that “[d]ouble recovery is
foreclosed by the rule that only one satisfaction may be
obtained for a loss that is the subject of two or more judgments.” (Citations omitted; internal quotation marks
omitted.) Id., 72.
Although there is no appellate authority on the application of the rule against double recovery when a dissolution action and a tort action are tried jointly, our
research has revealed one Superior Court decision that
addressed the issue. The court in that case stated that
“[t]he danger of double recovery by the victim spouse
arises . . . because economic awards in divorce judgments
incorporate principles of compensation similar to those
considered by juries in making personal injury awards.
For example, Connecticut’s equitable distribution statute
requires the divorce court to consider the following factors in determining how to distribute marital property:
the future financial circumstances of each party; the
‘age and health of both parties’; ‘causes for dissolution’; [and] ‘liabilities and needs of the parties.’ See General
Donshik v. Donshik
Statutes [§] 46b-81. The potential overlap between tort
compensatory damages and divorce economic awards is
even more evident when the factors a Connecticut court
must consider in setting an alimony award to the victim
spouse are listed: the ‘age and health of both parties’;
‘the present and future earning capacity of both parties’;
and ‘any other factor which the court shall expressly
find to be just and proper.’ ” Hutchings v. Hutchings,
Superior Court, judicial district of Litchfield, Docket
No. 054449-S (February 22, 1993) (8 Conn. L. Rptr.
433, 437).
Decisions from other jurisdictions that have addressed
this issue are instructive. In Twyman v. Twyman, 855
S.W.2d 619 (Tex. 1993), the Texas Supreme Court reasoned that, “[w]hen a tort action is tried with the divorce . . . it is imperative that the court avoid awarding a
double recovery. . . . [A] spouse should not be allowed to
recover tort damages and a disproportionate division
of the community estate based on the same conduct.
Therefore, when a [fact finder] awards tort damages to
a divorcing spouse, the court may not consider the same
tortious acts when dividing the marital estate. . . . [A]n
award for tortious conduct does not replace an analysis
of the remaining factors to be considered when the trial
court divides the marital estate. . . . The court may still award a disproportionate division of the property for
reasons other than the tortious conduct. To avoid the
potential problem of double recovery, the [fact finder]
should consider the damages awarded in the tort action
when dividing the parties’ property.” (Citations omitted;
emphasis added; footnote omitted; internal quotation
marks omitted.) Id., 625.
In Maharam v. Maharam, 177 App. Div. 2d 262, 264,
575 N.Y.S.2d 846 (1991), the Appellate Division of the
New York Supreme Court, in a case involving marital
dissolution and a tort claim between spouses, agreed
that the trial court properly permitted both actions
to be tried jointly but modified the court’s order. The
Appellate Division stated that “the court should not
Donshik v. Donshik
have left unresolved the order of the determinations
to be made at trial . . . . It is clear that before making
an equitable distribution award, the court will have to
take into account the resolution of the plaintiff’s tort
claims, as a substantial award thereunder would have
a significant impact upon the probable future financial
circumstances of each party. . . . Accordingly . . . the
jury shall first render a verdict upon [the] plaintiff’s
tort claims, and the court shall thereafter determine the
plaintiff’s equitable distribution and support claims. We
recognize that if [the] plaintiff is successful in her tort action, the defendant would be paying damages to the
plaintiff with funds that later may be determined to have
been, in part, marital property. However, as a joint trial
has been ordered, the court will have the opportunity to
take this factor into account when rendering an equitable
distribution award.” See also Christians v. Christians,
637 N.W.2d 377, 386 (S.D. 2001) (Konenkamp, J., concurring specially) (“[T]ort actions should not be used as
a method to augment divorce awards. Trial courts must
scrupulously forestall double recoveries. A spouse should
not reap tort damages on the same misconduct that generated an alimony award. To avoid a double recovery, a
court should factor the alimony awarded in the divorce
action when considering damages. On the other hand, in
the tort action, an award to one spouse from the other
should not add to the marital estate, making the tort
award ‘self-offsetting.’ ” (Footnote omitted.)).
The plaintiff argues that the trial court improperly
substituted its equitable distribution orders for an
award of damages on her negligent infliction of emotional distress claim. This claim is belied by the court’s
decision, in which the court explained that, in recognition of its financial orders on the dissolution count, it
awarded nominal damages on certain of the tort counts
to avoid a double recovery by the plaintiff. The plaintiff
has not persuaded us that the court improperly applied
the rule against double recovery in the present case,
which involved a claim for marital dissolution and a tort
claim for negligent infliction of emotional distress. By
Donshik v. Donshik
awarding nominal damages with respect to the plaintiff’s
tort claim, the court properly recognized that it would
be improper for the plaintiff to recover twice for the
same injury. For the foregoing reasons, the plaintiff’s
claim is unavailing.
IV
The plaintiff next claims that the trial court improperly
rendered judgment for the defendant on her conversion
and statutory theft claims.25 More specifically, she argues that the court incorrectly concluded, as a matter of law,
“that [the] torts of conversion and statutory theft do not
apply to moneys misappropriated by joint account holders.” The defendant counters that “the court’s factual
findings support its judgment in favor of the defendant
on each of those claims.” We agree with the plaintiff.
The following standard of review and legal principles
are relevant to the resolution of this claim. The plaintiff’s claim requires us to apply § 36a-290, which the court
relied on exclusively in concluding that the defendant
could not be liable for conversion or statutory theft as
a matter of law. Accordingly, our review of this issue
is plenary. See, e.g., Durso v. Vessichio, 79 Conn. App.
25
In her principal appellate brief, the plaintiff limits her specific claim of error to the trial court’s legal conclusion that a joint bank account holder cannot be held liable in conversion to another joint account holder for withdrawing funds from an account. The court reached this conclusion only in support of its judgment as to the Schwab brokerage account funds and did not rely on it in disposing of the remainder of the plaintiff’s conversion allegations, namely, her assertions that the defendant wrongfully had converted other bank accounts and assets. Accordingly, we need not address the court’s disposition of the plaintiff’s conversion claim relating to the other assets, as the plaintiff has not challenged the court’s conclusions with respect to those specific arguments on appeal. Accordingly, to the extent the plaintiff intended to challenge the court’s judgment with respect to all of her conversion claims, we conclude that these claims, apart from her claim relating to the Schwab brokerage accounts, are inadequately briefed and we decline to review them. See, e.g., Sicignano v. Pearce, 228 Conn. App. 664, 692, 325 A.3d 1127 (2024) (concluding that, by failing to address dispositive bases for court’s conclusion that plaintiff failed to establish that he was likely to prevail on merits of his complaint, his brief was inadequate for review), cert. denied, 351 Conn. 908, 330 A.3d 881 (2025).
Donshik v. Donshik
112, 116, 828 A.2d 1280 (2003); see also E & M Custom
Homes, LLC v. Negron, 140 Conn. App. 92, 103, 59 A.3d
262 (2013) (“[t]he application of a statute to a particular set of facts is a question of law to which we apply a plenary standard of review” (internal quotation marks omitted)),
appeal dismissed, 314 Conn. 519, 102 A.3d 707 (2014).
“Our Supreme Court has defined conversion as some
unauthorized act which deprives another of his property
permanently or for an indefinite time; some unauthorized
assumption and exercise of the powers of the owner to
his harm. The essence of the wrong is that the property
rights of the plaintiff have been dealt with in a manner
adverse to him, inconsistent with his right of dominion
and to his harm. . . . To establish a prima facie case of
conversion, the plaintiff ha[s] to establish that (1) the
deposit given to the defendant belonged to the [plaintiff], (2) the defendant deprived the [plaintiff] of [her]
funds for an indefinite period of time, (3) the defendant’s conduct was unauthorized and (4) the defendant’s conduct harmed the [plaintiff].” (Citation omitted; internal
quotation marks omitted.) Durso v. Vessichio, supra, 79
Conn. App. 125.
“The elements of a claim of statutory theft under
§ 52-564 provide that [a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.
[Our Supreme Court] has explained that [s]tatutory
theft under . . . § 52-564 is synonymous with larceny
[as defined in] General Statutes § 53a-119 . . . . Section
53a-119 provides in relevant part: A person commits
larceny when, with intent to deprive another of property
or to appropriate the same to himself or a third person,
he wrongfully takes, obtains or withholds such property
from an owner. . . .
“Because statutory theft is synonymous with larceny . . .
a good faith belief that one owns the property at issue
will negate the required intent. One who takes property
in good faith, under fair color of claim or title, honestly believing that . . . he has a right to take it, is not guilty of
Donshik v. Donshik
larceny even though he is mistaken in such belief, since
in such case the felonious intent is lacking.” (Citation
omitted; footnote omitted; internal quotation marks
omitted.) AAA Advantage Carting & Demolition Service,
LLC v. Capone, 221 Conn. App. 256, 278–79, 301 A.3d
1111, cert. denied, 348 Conn. 924, 304 A.3d 442 (2023),
and cert. denied, 348 Conn. 924, 304 A.3d 442 (2023).
“Conversion can be distinguished from statutory theft
as established by § 53a-119 in two ways. First, statutory
theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed
by a defendant’s conduct. Therefore, statutory theft
requires a plaintiff to prove the additional element of
intent over and above what he or she must demonstrate
to prove conversion.” (Internal quotation marks omitted.) Id., 289.
In the present case, the trial court noted in its memorandum of decision that “[§] 36a-290 provides that joint
owners of a bank account have an undivided interest in
the entire account. . . . Under Connecticut law, a joint
account holder has a property interest in the entire balance of a deposit account. [In re King, 214 B.R. 69,
83 (Bankr. D. Conn. 1997)]. Citing the predecessor to
§ 36a-290, the court [in In re King] explained that [t]his
statute has been interpreted to mean that co-holders of
a joint account are each considered owners of the entire
account, with access to the entire [amount] therein.”
(Footnote omitted; internal quotation marks omitted.)
The trial court concluded that “a co-owner of an account
cannot be held liable for conversion of the funds in the
account. Accordingly, the claim that the [defendant]
converted the Schwab account[s] fails.” With respect to
the plaintiff’s statutory theft claim, the court concluded
that, “[b]ecause the [plaintiff] has failed to prove her
conversion claim, her statutory theft/treble damages
claim necessarily fails.” We conclude that the court
misapplied the law.
This court has previously held that § 36a-290 serves to
protect banks and does not determine an account holder’s
Donshik v. Donshik
rights as to the moneys between holders.26 See Durso v.
Vessichio, supra, 79 Conn. App. 112. In Durso, this court
noted that, “[i]n Fleet Bank Connecticut, N.A. v. Carillo,
240 Conn. 343, 691 A.2d 1068 (1997), a case concerning
§ 36a-290 in the context of a third party creditor’s setoff rights, our Supreme Court touched on the meaning of
§ 36a-290 (a) with respect to an account holder’s property
rights. The court stated that § 36a-290 provides that,
when an account is created in the names of two or more
people, such account is deemed a joint account, and any
part or all of the balance of such account, including any
and all subsequent deposits or additions made thereto,
may be paid to any of such persons during the lifetime
of all of them. . . . Thus, under this statute, a bank is
authorized to release up to the entire balance of a joint
account to each and any coholder who so demands. In
our view, this authorization not only provides protection
for payor banks but also recognizes a sufficient property
interest in each coholder to warrant characterizing all
such deposits as a debt due to each coholder sufficient to
trigger a third party creditor’s statutory right to execute against the entire balance of the joint account. . . . The
court recognized that the two sentences in § 36a-290
(a)27 should be read together and that they jointly serve
to express the legislature’s intent to protect banks by
allowing banks to release any amount of funds to any
joint account holder without subsequent liability. The
court also recognized the right of each account holder to
withdraw any or all of the money on deposit in the account
and that the provision giving that right to withdraw
codified a sufficient property interest in each account
holder to substantiate a debt due.” (Citation omitted;
26
We note that, although the parties have not raised this issue, it is also unclear whether § 36a-290 properly applies to the Schwab brokerage accounts in the present case because § 36a-290 applies by its terms to joint bank accounts and share accounts established at credit unions. See General Statutes (Rev. to 2019) § 36a-290 (a) (“[w]hen a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union” (emphasis added)); see also footnote 13 of this opinion.
27
See footnote 13 of this opinion.
Donshik v. Donshik
emphasis in original; footnote added; internal quotation
marks omitted.) Durso v. Vessichio, supra, 116–17. This
court further noted in Durso that § 36a-290 “recognizes
the account holder’s right to the moneys as a debt due
by the bank. It does not recognize an account holder’s
rights to the money as between holders.” (Emphasis
added.) Id., 117.
Subsequently, our Supreme Court was tasked with
determining “whether a party who is named as a joint
holder of a bank account necessarily is a joint owner of
the funds deposited in that account and, therefore, may
not be criminally prosecuted for the wrongful withdrawal
of those funds.” State v. Lavigne, 307 Conn. 592, 593,
57 A.3d 332 (2012). In Lavigne, our Supreme Court
reviewed the “long-standing jurisprudence concerning
§ 36a-290 or its predecessor provision and other cases in
which the ownership of joint bank accounts was at issue”
and likewise concluded that § 36a-290 does not recognize
account holders’ rights to the moneys as between account
holders. Id., 601. The court noted that, “[i]n Grodzicki v. Grodzicki, 154 Conn. 456, 226 A.2d 656 (1967), the plaintiff, who was the defendant’s former husband, prevailed
in an action alleging conversion against the defendant
for her withdrawal of funds from a jointly held account
that she had opened and to which she had been the sole
contributor. This court reversed the judgment, in part
because it disagreed with the plaintiff’s argument that
General Statutes (Rev. to 1962) § 36-3, the predecessor
to § 36a-290, created a conclusive presumption that the
defendant wife intended to vest an undivided one-half
interest [in the account] in the plaintiff as of the time
she put his name on the account and that his right to this
interest continued even after the defendant withdrew
the funds from the account. . . . Reviewing the statutory
language, the court considered it obvious that the provision was intended to protect banks by authorizing, in the
case of a joint account, payment by the bank to any of the
codepositors during the lifetime of all of them or to the
survivor or survivors after the death of one or more of
them . . . . The court explained further that, although the
Donshik v. Donshik
statute creates a presumption, upon the death of a joint
account holder, that the intent of all parties was to vest
ownership of the account in the survivor or survivors,
that presumption has no application to an action between
the parties when all of them are alive. . . . In short, the statute does not determine the respective rights of the
parties inter vivos. . . . Rather, for a determination of
those rights, we must look to our common law . . . .
“The common law referenced is equally clear in establishing that the ownership of a jointly held bank account,
while the account holders are still living, is a question
of fact to be determined by examining the intent of the
account holders and the totality of the circumstances
surrounding the creation and maintenance of the joint
account. Stated otherwise, in the case of a joint holder
who has not herself contributed any of the funds to the
joint account in which she claims an ownership interest,
the factual question is whether the other joint holder and
sole contributor of the funds, by creation of the joint
account, intended to effect an immediate, inter vivos
transfer or gift of the funds to the noncontributing joint
holder.” (Citations omitted; footnotes omitted; internal
quotation marks omitted.) State v. Lavigne, supra, 307
Conn. 601–604.
In the present case, the trial court grounded its reasoning for concluding that the plaintiff could not prevail
on her conversion or statutory theft claims vis-à-vis the
funds in the Schwab brokerage accounts solely on its
interpretation and application of § 36a-290. Specifically,
relying on § 36a-290, the court held as a matter of law
that the defendant, as an account owner, could not be held
liable for conversion of the funds in the Schwab brokerage accounts. As explained previously in this opinion,
§ 36a-290 is a statutory provision that protects banks.
See id., 603. Although this court and our Supreme Court
have noted that § 36a-290 recognizes a property interest
in each coholder with respect to funds in a joint account;
see Fleet Bank Connecticut, N.A. v. Carillo, supra, 240
Conn. 350; Durso v. Vessichio, supra, 79 Conn. App.
Donshik v. Donshik
117; § 36a-290 does not determine the ownership rights
of account holders inter vivos. Durso v. Vessichio, supra,
121. The ultimate conclusion as to whether a party has
converted funds or committed statutory theft is one of
fact, to be determined by the trier. See, e.g., Papallo
v. Lefebvre, 172 Conn. App. 746, 758, 161 A.3d 603
(2017) (determination of issue of intent for purposes of
statutory theft is question of fact); Durso v. Vessichio,
supra, 125 (“[a] determination by the court as to whether
the defendant converted . . . funds necessarily would
involve a finding of fact”). The court in this case, however, did not make any factual findings with respect to
the Schwab brokerage accounts but, rather, concluded
that the plaintiff’s conversion and statutory theft claims
failed as a matter of law on the basis of § 36a-290. We
therefore conclude that the court improperly relied on
§ 36a-290 in rendering judgment for the defendant on the
plaintiff’s conversion and statutory theft claims concerning the Schwab brokerage accounts, and, accordingly,
that portion of the court’s judgment must be reversed
and the case remanded for further proceedings on those
counts of the amended complaint alleging conversion and
statutory theft as to the Schwab brokerage accounts.
See, e.g., McDermott v. State, 316 Conn. 601, 611–12,
113 A.3d 419 (2015) (remanding case for new trial when
trial court failed to apply correct legal standard because
it did not make requisite factual findings to support its
conclusion).
V
Finally, the plaintiff claims that the trial court improperly denied her motion for a stay of the proceedings.
Specifically, the plaintiff asserts that the “court denied
the plaintiff’s motion without engaging in the mandatory
balancing analysis” pursuant to United Public Service
Employees Union, Cops Local 062 v. Hamden, 209 Conn.
App. 116, 123–25, 267 A.3d 239 (2021). The defendant counters that the plaintiff has failed to provide an
adequate record for review and has inadequately briefed
her claim. We agree with the defendant that the plaintiff
Donshik v. Donshik
has failed to provide an adequate record for review and
therefore decline to review this claim.
The following additional procedural history is relevant
to the resolution of this claim. On January 3, 2023, the
plaintiff filed a motion to stay the proceedings, asserting that Rollcage had filed a chapter 7 bankruptcy petition
in the United States District Court for the District of
Connecticut in October 2022. In her motion, the plaintiff
argued that the Bankruptcy Court was investigating
“suspect[ed] fraud” perpetrated by Rollcage and that
continuing with the pending trial in the present case
“would be unfairly prejudicial, result in reversible error
and be a waste of resources for this honorable court and
the parties.” The court summarily denied the motion.
The plaintiff did not move to reargue and did not seek
an articulation of the court’s reasoning.
In her opening brief to this court, the plaintiff claims
that the trial court’s denial of her motion for a stay was
based on an incorrect application of relevant law, and,
therefore, we should apply plenary review. Specifically,
she maintains that the court denied her motion without
engaging in the mandatory balancing analysis articulated
in United Public Service Employees Union, Cops Local
062 v. Hamden, supra, 209 Conn. App. 123–25.
It is well settled that, “[i]n determining whether to
impose a stay . . . the court must balance the interests of the litigants, nonparties, the public and the court itself. . . . The factors a court should consider include: [1] the interests of the plaintiff in an expeditious resolution and the
prejudice to the plaintiff in not proceeding; [2] the interests of and burdens on the defendants; [3] the convenience
to the court in the management of its docket and in the
efficient use of judicial resources; [4] the interests of
other persons not parties to the civil litigation; and [5]
the interests of the public in the pending civil and criminal actions. . . . In the absence of a statutory mandate,
the granting of an application or a motion for a stay of
an action or proceeding is addressed to the discretion
of the trial court . . . . [T]he power to stay proceedings
Donshik v. Donshik
is incidental to the power inherent in every court to
control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and
maintain an even balance.” (Citation omitted; internal
quotation marks omitted.) Id., 124–25.
In the present case, the plaintiff does not challenge the
trial court’s application of the balancing test articulated in United Public Service Employees Union, Cops Local
062, but, rather, its alleged failure to apply the balancing test in the first instance. The court’s order summarily
denying the plaintiff’s motion to stay did not articulate
its reasoning. The plaintiff did not move the court for
an articulation of its reasoning in denying her motion
to stay the proceedings. Without an articulation of the
trial court’s reasoning, it is impossible for this court
to determine whether the trial court, in fact, failed to
engage in the required balancing analysis, as the plaintiff claims. Accordingly, in the absence of any indication to
the contrary, it can be presumed that the trial court in
the present case applied the correct legal standard in
declining to stay the proceedings. See Deroy v. Estate of
Baron, 136 Conn. App. 123, 129–30, 43 A.3d 759 (2012).
The judgment is reversed only as to the counts of the
amended complaint alleging conversion and statutory
theft with respect to the parties’ Schwab brokerage
accounts and the case is remanded for further proceedings on those counts consistent with this opinion; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.