author: Palmer, J.

text:
    Northeast Savings, F.A. v. Plymouth Commons Realty Corporation et al.
    (14731)
    Peters, C. J., Berdon, Norcott, Katz and Palmer, Js.
    Argued November 30, 1993—
    decision released June 14, 1994

      Robert A. Ziegler, for the appellants-appellees (named defendant et al.).

      Michael Feldman, with whom, on the brief, were Lori J. Kremidas and Susan I. Hamilton, for the appellee-appellant (plaintiff).
   Palmer, J.

This appeal and cross appeal from a judgment of foreclosure requires us to decide whether the trial court properly: (1) imposed sanctions against the defendants Joan C. Ursini and Plymouth Commons Realty Corporation (Plymouth Realty) because their codefendant, Louis M. Ursini, refused to answer questions at his deposition; and (2) denied the plaintiffs motion to strike the defendants’ jury claim. We conclude that the trial court properly denied the plaintiff’s motion to strike the jury claim, but that it improperly imposed sanctions against Joan Ursini and Plymouth Realty.

The facts may be summarized as follows. On February 21, 1990, the plaintiff, Northeast Sayings, F.A., initiated a foreclosure action against Louis Ursini, Joan Ursini and Plymouth Realty, alleging that Plymouth Realty had defaulted on a $1,000,000 note guaranteed by Louis Ursini and Joan Ursini and secured by a mortgage on certain rental property located in Plymouth. The defendants filed an answer and asserted six special defenses and a counterclaim. The counterclaim alleged that the plaintiff had: (1) breached its obligation to deal with the defendants in good faith by conspiring with another bank to terminate the lending relationship between the plaintiff and the defendants; (2) committed unfair and deceptive trade practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; (3) negligently failed to collect and manage the property’s rental income as had been agreed by the parties; and (4) breached its fiduciary duty to the defendants by failing properly to collect and manage the property’s rental income. The defendants filed a jury claim, which the plaintiff moved to strike on the ground that the defendants’ counterclaim raised issues of law that required determination by a jury. On July 3,1991, Judge Satter denied the plaintiff’s motion to strike the defendants’ jury claim in accordance with Practice Book § 308.

The plaintiff thereafter filed a motion for default, sanctions and judgment of dismissal of the defendants’ counterclaim (motion for sanctions), alleging that Louis Ursini, while under oath at his deposition on July 9, 1991, had refused to answer certain of the plaintiff’s questions and had responded to other questions in a false, misleading and evasive manner. On December 11, 1991, after a hearing on the motion, the trial court, Maloney, J., issued the following order: “Motion for default against [the] defendant Louis Ursini and non-suit on the counterclaim is granted for failure to respond to questions at deposition.” Louis Ursini filed a timely motion to set aside the default and nonsuit, and the court, after a hearing on January 27, 1992, denied the motion. At the conclusion of that hearing, the trial court, on the request of plaintiff’s counsel for a clarification of its December 11,1991 order, explained that the nonsuit and default applied to Joan Ursini and Plymouth Realty as well as to Louis Ursini. The plaintiff thereafter filed a motion for strict foreclosure. On July 29, 1992, Judge Satter rendered a judgment of foreclosure by sale. This appeal and cross appeal followed.

I

The defendants Joan Ursini and Plymouth Realty claim that the trial court improperly rendered a judgment of default and nonsuit against them for Louis Ursini’s refusal to respond to questions posed to him at his deposition by the plaintiff’s counsel. We agree.

Practice Book § 231 provides in relevant part: “If any party has failed to . . . appear and testify at a deposition duly noticed pursuant to this chapter . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following: (a) The entry of a nonsuit or default against the party failing to comply . . . .” Although the trial court has broad discretion to fashion and impose sanctions for failure to comply with the rules of discovery; see Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 48, 634 A.2d 870 (1993); Eslami v. Eslami, 218 Conn. 801, 805-806, 591 A.2d 411 (1991); Practice Book § 231 authorizes the entry of a default or nonsuit against the party failing to appear or testify at a duly noticed deposition. Thus, Joan Ursini and Plymouth Realty may be held responsible for the conduct of Louis Ursini, and sanctioned accordingly, only if the evidence demonstrated that Louis Ursini was acting on behalf of Joan Ursini and Plymouth Realty when he refused to testify at his deposition. See Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 147, 470 A.2d 246 (1984) (because administrator of decedent’s estate acted as agent for estate’s beneficiaries, dismissal of beneficiaries’ action was appropriate due to administrator’s refusal to respond to deposition questions); see also Securities & Exchange Commission v. Wencke, 577 F.2d 619, 622 (9th Cir. 1978) (court had authority to impose sanctions against one defendant for actions of another where record supported conclusion that latter had acted on behalf of former); Atlantic Cape Fisheries v. Hartford Fire Ins. Co., 509 F.2d 577 (1st Cir. 1975) (sanctions properly imposed against corporation for conduct of corporate president where corporation failed to demonstrate that it could not control president’s conduct). Kidd Pipeline & Specialties, Inc. v. Campagna, 712 S.W.2d 238, 242 (Tex. App. 1986) (sanctions properly imposed against corporation for deposition conduct of corporation’s president).

The trial court, however, made no finding as to whether Louis Ursini’s deposition conduct was properly attributable to Joan Ursini and Plymouth Realty. Rather, the court concluded that the imposition of a default and nonsuit against Joan Ursini and Plymouth Realty was the only way to vindicate the plaintiff’s right to depose Louis Ursini in preparation of its defense to the claims raised by Joan Ursini and Plymouth Realty. We disagree. The fact that Louis Ursini might be called as a trial witness by Joan Ursini and Plymouth Realty is not alone a sufficient reason to impute to them the deposition conduct of Louis Ursini. In the absence of a determination by the trial court, supported by the evidence, that the conduct of Louis Ursini was attributable to Joan Ursini and Plymouth Realty, the imposition of sanctions against Joan Ursini and Plymouth Realty for Louis Ursini’s conduct was improper.

The plaintiff contends that the trial court acted within its discretion in entering a default and nonsuit against both Joan Ursini and Plymouth Realty because Louis Ursini was Joan Ursini’s husband and the president of Plymouth Realty. The trial court, however, made no finding that Louis Ursini was married to Joan Ursini or that he was the president of Plymouth Realty, and there is insufficient evidence in the record of the hearings on the plaintiff’s motion for sanctions to support such a conclusion. Moreover, even if the record of the proceedings below supported a finding by the trial court that Louis Ursini was Joan Ursini’s husband and the president of Plymouth Realty, the court would have been required to determine whether, in these circumstances, Louis Ursini’s relationship to Joan Ursini and Plymouth Realty warranted a further finding that his deposition conduct was properly attributable to them. The trial court made no finding, however, that Louis Ursini’s conduct was attributable to Joan Ursini and Plymouth Realty, and the record does not provide a sufficient factual basis to conclude that the trial court impliedly made such a determination.

Accordingly, we conclude that the case must be remanded for an evidentiary hearing so that the trial court may determine whether Louis Ursini’s conduct at his deposition was properly attributable to Joan Ursini and Plymouth Realty. If the trial court so finds, the court must then determine what sanctions, if any, should be imposed against Joan Ursini and Plymouth Realty.

II

The plaintiff claims that the trial court improperly denied its motion to strike the jury claim. We disagree.

Plymouth Realty and Joan Ursini concede that foreclosure actions are equitable in nature and, therefore, do not give rise to a right to a jury trial under article first, § 19, of the Connecticut constitution. See Skinner v. Angliker, 211 Conn. 370, 374, 559 A.2d 701 (1989); Texaco, Inc. v. Golart, 206 Conn. 454, 458, 538 A.2d 1017 (1988); Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). They claim, however, to have raised in their counterclaim issues of law that require determination by a jury. “When legal and equitable issues are combined in a single action, whether the right to a jury trial attaches depends upon the relative importance of the two types of claims. ‘Where incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers. Doris v. McFarland, 113 Conn. 594, 608, 156 Atl. 52 [1931]. Where, however, the essential basis of the action is such that the issues presented would be properly cognizable in an action of law, either party has a right to have the legal issues tried to the jury, even though equitable relief is asked in order to give full effect to the legal rights claimed; Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 618, 7 Atl. (2d) 847 [1939]; LaFrance v. LaFrance, 127 Conn. 149, 152, 14 Atl. (2d) 739 [1940] . . . .’ National Bank of Commerce v. Howland, 128 Conn. 307, 310, 22 A.2d 773 (1941). Because a counterclaim is an independent action; see Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985); the question presented is whether the defendants’ counterclaim is essentially legal or essentially equitable. See Franchi v. Farmholme, Inc., [191 Conn. 201, 211, 464 A.2d 35 (1983)]; Flanigan v. Foley, 20 Conn. Sup. 12, 13, 119 A.2d 741 (1955). This analysis must be performed in the context of the pleadings when read as a whole. Franchi v. Farmholme, Inc., supra. The form of the relief demanded is not dispositive. Fitzgerald v. Sullivan, 12 Conn. Sup. 206, 206-207 (1943).” United States Trust Co. v. Bohart, 197 Conn. 34, 45, 495 A.2d 1034 (1985).

The trial court, on application of these principles, determined that the defendants’ counterclaim is essentially legal in nature and, therefore, gives rise to a right to a jury trial. The plaintiff does not seriously contest the trial court’s determination that the defendants have asserted several legal issues in their counterclaim. Indeed, the defendants’ counterclaim seeking damages for breach of contract, breach of fiduciary duty and negligence is indisputably legal in nature. The plaintiff argues, rather, that the defendants are not entitled to a jury trial on their counterclaim because the foreclosure action is an equitable one. This argument, however, misapplies the test set out in United States Trust Co. v. Bohart, supra, 197 Conn. 45, for determining when a legal counterclaim may be tried to a jury. We conclude that the trial court properly applied that test in determining that the defendants’ legal counterclaim is triable to a jury and, therefore, that the court properly denied the plaintiff’s motion to strike the defendants’ jury claim.

The judgment is reversed and the case is remanded for an evidentiary hearing on the plaintiffs motion for sanctions against Joan Ursini and Plymouth Realty.

In this opinion the other justices concurred.

       Louis M. Ursini has not appealed from the judgment of default and non-suit and is not, therefore, a party to this appeal. The following defendants were also defaulted and are not parties to this appeal: Shared Development Limited Partnership; Linda J. Albert; Chin Ki Cheng; Denise Sturgeon; EWR, Inc.; Chun Kun Lee; Charles Kapros; George Kapros; Chris Sullivan; Timothy Sullivan; Thomas J. Makara; David Smith; and Pauline Demora. Hereinafter, we will refer to Plymouth Realty, Joan Ursini and Louis Ursini as the defendants.

       Practice Book § 308 provides: “cases presenting both legal and EQUITABLE ISSUES
      “A case presenting issues both in equity and law may be claimed for the jury list, but, unless the court otherwise orders, only the issues at law shall be assigned for trial by the jury. Whenever such an action has been placed upon the docket as a jury case, no determination of the equitable issues raised by the pleadings shall prevent a jury trial of the claim for damages, unless both parties agree in writing to waive a jury, or unless the determination of the equitable issues has necessarily adjudicated all the facts upon which the claim for damages rests.”

       Neither Joan Ursini nor Plymouth Realty challenge the trial court’s finding that Louis Ursini had failed to respond to the plaintiff’s questions at his deposition.

       On October 5,1992, the trial court, Maloney, J., issued an articulation of his order of default and nonsuit against the defendants.

       Plymouth Realty and Joan Ursini appealed and the plaintiff cross appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal and cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The plaintiff argues that Joan Ursini and Plymouth Realty did not properly raise this claim before the trial court and, therefore, that they should not be permitted to seek review of this issue on appeal. The plaintiff did not, however, specifically allege that Louis Ursini’s deposition conduct was attributable to Joan Ursini and Plymouth Realty until the January 27,1992 hearing on Louis Ursini’s motion to vacate the sanctions imposed against him. The defendants immediately requested the opportunity to brief the issue, prior to the trial court’s ruling, but their application to do so was denied. In these circumstances, we cannot say that Joan Ursini and Plymouth Realty have waived their right to raise this claim.

       The plaintiff concedes that the only suggestion in the record that Louis Ursini was married to Joan Ursini is the sheriffs return of service of the summons and complaint, which notes that Louis Ursini and Joan Ursini had been served at the same address. Similarly, the only indication that Louis Ursini was the president of Plymouth Realty consists of the sheriff’s return, which states that Louis Ursini had been served in his individual capacity and as president of Plymouth Realty, along with certain loan documents, attached as exhibits to the complaint, which bear Louis Ursini’s signature as president. None of these documents, however, was introduced into evidence or was, as far as the record shows, relied on by the trial court at any of the proceedings on the plaintiff’s motion for sanctions. Finally, the record is devoid of any other evidence as to whether Louis Ursini was married to Joan Ursini or was president of Plymouth Realty at the time of his deposition.

       The plaintiff claims that we may affirm the decision of the trial court on the alternate ground that each of the defendants’ six special defenses is deficient as a matter of law. Although the plaintiff filed a motion to strike three of the defendants’ special defenses, the plaintiff did not challenge the legal sufficiency of the remaining special defenses in the trial court. We therefore do not address the plaintiff’s claim. Practice Book § 4185; see Passamano v. Passamano, 228 Conn. 85, 90-91 n.8, 634 A.2d 891 (1993).

       The plaintiff raises this issue pursuant to Practice Book § 4013 (a) (1) (B), which provides that any appellee may present for review adverse rulings or decisions of the court that should be reviewed in the event that a new trial is ordered.

       The plaintiff relies on dictum in Savings Bank of New London v. Santaniello, 130 Conn. 206, 211, 33 A.2d 126 (1943), for the proposition that the defendants, by raising their legal claims as a counterclaim in the plaintiff’s equitable action rather than filing a separate suit, have waived their right to a jury trial. To the extent that our dictum in Savings Bank of New London is inconsistent with the principles set forth in our subsequent cases; see, e.g., Texaco, Inc. v. Golart, supra, 206 Conn. 458-59; United States Trust Co. v. Bohart, supra, 197 Conn. 44-45; we decline to follow it.

       Of course, the defendants are entitled to a jury trial only on their legal counterclaim and not on the foreclosure action. In the event of a new trial, therefore, the trial court must determine whether to conduct the trial of the legal and equitable claims jointly or separately. We note that as a general matter, a joint trial of the legal and equitable claims will often serve the interest of judicial economy. That interest, however, must be weighed against the parties’ interest in an expeditious determination of the foreclosure action. See General Statutes § 52-192 (“foreclosure cases . . . shall have precedence over all other civil actions in respect to the order of trial”).

       Because we vacate the judgment of default entered against Joan Ursini and Plymouth Realty, we do not address the issues raised by the plaintiff on its cross appeal concerning the trial court’s rulings on the plaintiff’s motion for judgment of strict foreclosure.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Mary-Anne Mulholland v. James C. Mulholland
    (14821)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued March 22—
    decision released June 14, 1994

      James C. Mulholland, pro se, the appellant (defendant).

      Mary-Anne Ziewacz Mulholland, pro se, the appellee (plaintiff).
   Borden, J.

The sole issue in this appeal is whether, after a child support order has been reversed on appeal, a trial court may render a judgment of civil contempt for wilful failure to pay that support order if the acts constituting the contempt occurred prior to the reversal. The defendant appeals, upon our grant of certification, from the judgment of the Appellate Court affirming the judgment of the trial court that held the defendant in civil contempt of court.

The defendant claims that the Appellate Court improperly affirmed the trial court’s contempt judgment because the intervening appellate reversal of the underlying order rendered that order void and without effect. We disagree and affirm the judgment of the Appellate Court.

The opinion of the Appellate Court states most of the pertinent facts and procedural history. “The parties’ marriage was dissolved by order of the trial court [Barall, J.,] on January 16,1991. There were two minor children issue of the marriage, Colin born September 28,1984, and Rachel born November 5,1986. The issue of custody of the two minor children and all financial matters were reserved for trial at a later date. In March and April of 1991, a trial was held on the reserved issues. On April 23,1991, the trial court rendered its oral decision. The court ordered that the parties would have joint custody of the minor children and that their primary residence was to be with the plaintiff. The court ordered the defendant to pay $260 per week for the support of Rachel and $100 per week for the support of Colin. There had been no pendente lite support orders. The defendant was also ordered to pay one half of any substantial expenses incurred by the plaintiff for ‘day care, summer camp, cultural or athletic enrichment programs, educational enhancement, private schooling or other similar services.’ The defendant was also ordered to pay one half of ‘the cost of [medical] insurance for the minor children as well as [one half] of any unreimbursed medical, dental, orthodontic, prescriptive, optical, mental health or other health related expenses of the minor children.’

“The defendant immediately appealed to [the Appellate Court] from the April 23 orders of the trial court. On May 3, 1991, the defendant sought a stay of the orders of child support from the trial court. On June 11, 1991, the trial court denied the stay. The defendant filed no further applications for a stay of execution, nor did he seek review from [the Appellate Court] of the denial of the stay.

“The defendant made the child support payments as ordered through late November or early December of 1991. He then stopped making payments. On December 30, 1991, the plaintiff filed a motion for contempt in the trial court. This motion was filed while the defendant’s appeal from the trial court’s order of April 23, 1991, was pending before [the Appellate Court]. Oral argument on the defendant’s appeal was heard by [the Appellate Court] on December 6, 1991.

“On January 14, 1992, the trial court [Norko, J.,] began its hearing on the plaintiff’s motion for contempt. No orders were entered at that time, although the trial court warned the defendant that he was risking a judgment of contempt, and ordered him to make the payments. On February 11, 1992, [the Appellate Court] reversed the trial court’s decision regarding the financial orders, and remanded the case for a new hearing on all financial issues. Mulholland v. Mulholland, 26 Conn. App. 585, 602 A.2d 1054 (1992) [Mulholland I]. On March 5, 1992, the trial court again took up the contempt motion. It found that there was an arrearage of $6175 as of the date of [the Appellate Court’s] reversal of the underlying order and found the defendant to be in contempt of court. The trial court ordered the defendant incarcerated until he purged the contempt by paying the sum of $6175 to the plaintiff. On the following day, the defendant purged his contempt and was released from incarceration.” Mulholland v. Mulholland, 31 Conn. App. 214, 216-17, 624 A.2d 379 (1993) (Mulholland II).

The following evidence supported the trial court’s adjudication of contempt. The defendant, who was a lawyer in private practice, unilaterally had stopped making child support payments since December, 1991. Except for one payment, the defendant had not made any of the required payments toward the health care benefits for the children for approximately one year. From July, 1990, through February, 1991, the defendant had received approximately $16,000 from his law firm. Further, in early May, 1991, the defendant’s law firm had settled a personal injury case for approximately $1.2 million, of which the defendant received approximately $130,000 as his portion of the fee. Out of that draw, he paid approximately $60,000 in past and current taxes. From the funds remaining, he voluntarily paid his new wife’s premarital debts in the amount of approximately $9000 and paid approximately $2000 for his wedding and honeymoon. The trial court rejected the defendant’s claim that his failure to meet the court’s order had not been wilful, and found instead that he had chosen to ignore the order. Consequently, the trial court rendered the judgment of contempt at issue in this case.

The defendant appealed to the Appellate Court. That court, with one judge dissenting, affirmed the judgment of the trial court, reasoning that the trial court’s judgment was based on “our rules of practice, our case law and . . . sound considerations of public policy.” Mulholland II, supra, 31 Conn. App. 216. This appeal followed.

The defendant, relying principally on the reasoning and authorities advanced by Judge Lavery’s dissent in the Appellate Court, claims that, once the Appellate Court reversed the underlying child support order on February 11, 1992; see Mulholland II, supra, 31 Conn. App. 225; that order became “completely void.” Therefore, the defendant argues, the parties were put “back in the position they occupied before the original [dissolution] action was brought,” so that on March 5,1992, when the trial court held the defendant in contempt, “there no longer existed a court order with which the defendant was to comply.” Although the defendant’s argument has a certain metaphysical appeal, and has some support in the general law of contempt, under the circumstances of this case we disagree with it.

We first note that the trial court’s judgment of contempt was based solely on the defendant’s failure to make the court-ordered payments only until February 11,1992, the date of the Appellate Court’s reversal in Mulholland I, supra, 26 Conn. App. 585. The plaintiff did not seek, and the trial court did not render, a judgment of contempt for any conduct of the defendant after that date. As the Appellate Court properly noted, “[bjecause the original child support order was no longer enforceable as a judicial decree after [that] court’s reversal of the order on February 11, 1992, there could be no contempt for the nonpayment of child support under that order occurring after that date.” Mulholland II, supra, 31 Conn. App. 219-20.

In Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985) (Cologne II), we considered a question similar to that posed by this case. On March 2, 1983, the trial court in Cologne II had enjoined the defendants from prohibiting the plaintiffs access to the defendants’ shopping mall for specified purposes. The defendants appealed from that judgment. While the judgment was on appeal, on April 22, 1983, the trial court held the defendants in civil contempt for violating the injunction. Id., 145. The defendants, although thereafter complying with the injunction by permitting the plaintiffs access to the mall, also appealed from the judgment of contempt. Id., 142. Thereafter, on January 17, 1984, this court reversed the March 2, 1983 injunction of the trial court and remanded the case “with direction to render judgment for the defendants.” Cologne v. Westfarms Associates, 192 Conn. 48, 66, 469 A.2d 1201 (1984) (Cologne I).

In Cologne II, we considered the validity of the trial court’s April 22, 1983 judgment of contempt. The defendants argued that “because the injunction upon which their contempt was based was held in [Cologne I], to have been erroneously issued, the court could not hold them in contempt for failing to obey its injunctive order.” Cologne II, supra, 197 Conn. 147. We rejected that argument, stating that an order entered by a court with proper jurisdiction “must be obeyed by the parties until it is reversed by orderly and proper proceedings.” (Internal quotation marks omitted.) Id. We noted that a party has a duty to obey a court order “however erroneous the action of the court may be . . . .” (Internal quotation marks omitted.) Id. We registered our agreement with the “long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed . . . .” (Internal quotation marks omitted.) Id., 148. Finally, we emphasized that “court orders must be obeyed; there is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid.” Id.

Cologne II, is both similar to and different from this case. It resembles this case in that: (1) it involved a civil contempt; and (2) we affirmed the judgment of civil contempt even though we had previously reversed the underlying order. Nonetheless, it is different from this case because, when the trial court rendered the judgment of contempt at issue in Cologne II, the underlying order was still on appeal and had not yet been reversed.

There is considerable authority for the proposition that, with respect to civil contempt as opposed to criminal contempt, appellate reversal of the underlying order subsequent to a judgment of contempt for violation of that order also mandates reversal of the contempt judgment. See, e.g., United States v. United Mine Workers, 330 U.S. 258, 294-95, 67 S. Ct. 677, 91 L. Ed. 884 (1947) (“It does not follow . . . simply because a defendant may be punished for criminal contempt for disobedience of an order later set aside on appeal, that the plaintiff in the action may profit by way of a fine imposed in a simultaneous proceeding for civil contempt based upon a violation of the same order. The right to remedial relief falls with an injunction which events prove was erroneously issued.”); see also Maness v. Meyers, 419 U.S. 449, 458, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975) (“[pjersons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect”); Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 86 F.2d 727 (2d Cir. 1936).

Our decision in Cologne II, supra, 197 Conn. 141, however, has foreclosed drawing a distinction between the effect of an appellate reversal on a judgment of civil contempt and a judgment of criminal contempt if, as in Cologne II, the contempt judgment preceded the appellate reversal of the underlying order. We need not decide in this case whether the reasoning of Cologne II would apply in every case in which the judgment of contempt followed the appellate reversal. The special considerations that attend an order of child support are sufficient to persuade us, however, as they did the Appellate Court, that the same reasoning should apply to this case.

Our cases have recognized that the special concerns that arise in the context of family cases may sometimes justify a departure from the rules that ordinarily apply to other civil disputes. See, e.g., Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991) (party seeking to open marital judgment on basis of fraud need not establish diligence in attempting to discover fraud); Monroe v. Monroe, 177 Conn. 173, 182-83, 413 A.2d 819, appeal dismissed, 444 U.S. 810, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979) (“Analogies drawn from commercial litigation fail to respond adequately to the situation of emotional trauma commonly associated with the irretrievable breakdown of a marriage. . . . [Ljawyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client’s rights and interests.”); see also Baker v. Baker, 187 Conn. 315, 445 A.2d 912 (1982); O’Bymachow v. O'Bymachow, 12 Conn. App. 113, 118-19, 529 A.2d 747, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987); Grayson v. Grayson, 4 Conn. App. 275, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987). Similar justifications are present in this case.

As the Appellate Court recognized in upholding the trial court’s authority to hold the defendant in civil contempt, “a result different from that reached by us today would . . . frustrate clearly defined public policy regarding the parental obligation to support minor children. Both state and national policy has been, and continues to be, to ensure that all parents support their children and that children who do not live with their parents benefit from adequate and enforceable orders of child support. Turner v. Turner, 219 Conn. 703, 713-20, 595 A.2d 297 (1991); 42 U.S.C. § 651 et seq. (Part D of Title IV of the Social Security Act). Child support is now widely recognized as an essential component of an effective and comprehensive family income security strategy. See generally A. Houseman, ‘Poverty Law Developments and Options for the 1990s,’ 24 Clearinghouse Review 2, 5-7 (1990); P. Roberts, ‘Child Support and Beyond: Mapping a Future for America’s Low-Income Children,’ 22 Clearinghouse Review 594 (1988). As with any income source, the effectiveness of child support in meeting the needs of children is, of necessity, increased when payments are made regularly and without interruption.” Mulholland II, supra, 31 Conn. App. 224.

As the Appellate Court aptly stated: “The failure of a marital relationship often has profound effects on the parties and their children and may, as well, affect society in general. Where the need for child support is established and ordered by the court, it is of the utmost importance for the welfare of the child that such payments be made in a timely fashion. It is also in the interest of society that the child be supported by those obligated to support the child and that the child not be required to seek public assistance to satisfy those needs unless otherwise necessary.” Id., 218.

These strong public policies are reflected in Practice Book § 4046. That section provides that an order of child support is not stayed by an appeal unless specifically ordered to be stayed pursuant to Practice Book § 4047. Thus, the pendency of an appeal does not disturb the income stream necessary for support of a minor child, unless the court has stayed the effect of its order.

Furthermore, requiring a parent who has been ordered to pay child support to continue to make those payments pending an appeal, upon pain of civil contempt even if the parent ultimately prevails on the appeal, serves another important function that is unique to family litigation. As our jurisprudence recognizes; see Billington v. Billington, supra, 220 Conn. 222; and as any judge and family practitioner will acknowledge, the area of marital dissolution litigation offers the opportunity for a degree of friction between the parties far greater than in many other areas of civil litigation. Therefore, a bright line rule requiring compliance with a child support order, regardless of the eventual outcome of an appeal of that order, will reduce the possibility of the increased friction that could arise from a real, or perceived, manipulation by an alleged contemnor of the timing of the hearing on a motion for contempt.

The defendant concedes that, if the Appellate Court’s decision in Mulholland I had succeeded rather than preceded the trial court’s contempt judgment in this case, that judgment would have been unassailable under Cologne II. Under the bright line test that we adopt in this case, both parties will know that the motion for contempt of court will be addressed on its merits, unaffected by the fortuity of the timing of the Appellate Court’s decision on any pending appeal of the trial court’s contempt judgment.

We are not persuaded by the defendant’s reliance on such cases as Reilly v. State, 119 Conn. 217, 220-21, 175 A. 582 (1934), Brennan v. Berlin Iron Bridge Co., 73 Conn. 412, 415-16, 47 A. 668 (1900), Woodruff v. Bacon, 35 Conn. 97, 102 (1868), and Allen v. Adams, 17 Conn. 67, 73 (1854). Although each of those cases does state, in varying forms, the general proposition that an appellate reversal of a judgment returns the parties to the status quo before the trial, none of them involved an intervening contempt judgment, and none of them involved an order of child support.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       We certified the following issue for appeal: “May the trial court render a judgment of civil contempt for failure to comply with an order of the court after an appellate court has revised the underlying order?” Mulholland v. Mulholland, 227 Conn. 905, 632 A.2d 693 (1993). In view of our conclusion that the trial court may do so if, as in this case, the trial court’s order involves child support, we need not answer the certified question in the broad terms in which it is framed.

       In Mulholland I, supra, 26 Conn. App. 585, the Appellate Court reversed the financial orders of the trial court because the court improperly had entered the child support orders for the purpose of balancing the incomes of the parties, in violation of this court’s holding in Battersby v. Battersby, 218 Conn. 467, 473, 590 A.2d 427 (1991).

       Although, based on this reasoning, we rejected the defendants’ challenge to the judgment of contempt, we nonetheless reversed that judgment because it had been rendered without a proper evidentiary basis. Cologne II, 197 Conn. 149-57. Furthermore, because the defendants had continued to comply with the trial court’s injunction from April 23, 1983, until that injunction had been vacated by this court in Cologne I, supra, 192 Conn. 48, we deemed the purpose of the civil contempt to have been satisfied, and therefore perceived no need for further trial court proceedings. Cologne II, supra, 157.

       Practice Book § 4046 provides in relevant part: “[automatic stay of EXECUTION]-IN GENERAL
      “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced . . . . This section shall not apply to actions concerning . . . periodic alimony and support orders, as well as to custody or visitation orders in domestic relations matters brought pursuant to chapter 17 . . . .” (Emphasis added.)

       Practice Book § 4047 provides in relevant part: “[stay of execution] -APPLICATION IF STAY NOT AUTOMATIC
      “In non-criminal matters in which the automatic stay provisions of Sec. 4046 are not applicable and in which there are no statutory stay provisions, application for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the application may be made to any judge of the superior court.”

       We emphasize that we do not hold that, in a case such as this, the trial court is required to hold the alleged contemnor in contempt. That determination remains within the sound discretion of the court.


author: Katz, J.

text:
    Vincent T. McManus, Jr., et al. v. Commissioner of Environmental Protection
    (14836)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.
    Argued March 30—
    decision released June 14, 1994

      PatriciaA. Horgan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin and Robert B. Teitelman, assistant attorneys general, for the appellant (defendant).

      Patrick M. Noonan, for the appellees (plaintiffs).
   Katz, J.

The sole issue in this certified appeal is whether, under the circumstances of this case, the defendant, the commissioner of environmental protection, was permitted to issue an administrative order to abate a violation of the wetlands laws pursuant to General Statutes § 22a-44 (a) after maintaining, for three years, a civil action pursuant to § 22a-44 (b) that was subsequently withdrawn without prejudice. We agree with the Appellate Court that the defendant was not authorized to issue such an order under the circumstances of this case. Therefore, we affirm the judgment of the Appellate Court, although we do so on different grounds.

The following facts are undisputed. In April, 1985, the named plaintiff, Vincent McManus, contacted the state department of environmental protection (department) concerning the excavation of a farm pond in a wetland located on property owned by his wife, the plaintiff Patricia McManus. An environmental analyst from the department made a preliminary on-site determination that the proposed farm pond was not likely to have a significant adverse impact on the wetland and therefore was “no big deal.” In September, 1985, the department informed the plaintiffs that the farm pond could be excavated without a permit pursuant to the exemption provided under General Statutes § 22a-40 (a) (1), but that the creation of a “pasture or other fast land in wetlands adjacent to the pond [was] not exempt.” Thereafter, the plaintiffs filed, but subsequently withdrew, an application for a permit to excavate a farm pond and deposit the excavated material on the surrounding area.

In the spring of 1987, the plaintiffs excavated a farm pond on their property and deposited the removed material on the surrounding wetlands. On May 4,1987, the defendant filed a civil action pursuant to § 22a-44 (b) against Patricia McManus seeking the removal of the fill from the wetlands adjacent to the farm pond, the restoration of the wetlands to their prior condition, and the payment of a civil penalty and various costs. Pursuant to General Statutes § 22a-42, on July 1, 1988, the department transferred jurisdiction over the inland wetlands and watercourses of the town of Wallingford to the newly created Wallingford inland wetlands commission (commission). The department, however, informed the commission that it was retaining jurisdiction over enforcement activities that were already underway.

On March 6,1990, the defendant issued an administrative order to both plaintiffs directing removal of the fill and restoration of the wetlands. Two days later, after almost three years of extensive pleadings, motions and depositions, the defendant withdrew the civil action against Patricia McManus, leaving the administrative order in place. The plaintiffs appealed from the administrative order pursuant to General Statutes § 22a-6 (e). After a hearing, an administrative hearing officer from the department issued a “Final Decision and Order” upholding the administrative order. Pursuant to General Statutes § 22a-43 (a), the plaintiffs appealed to the trial court, which upheld the decision of the department’s administrative hearing officer. The plaintiffs then appealed to the Appellate Court.

The Appellate Court concluded that § 22a-44 prohibited the defendant from issuing an administrative order pursuant to subsection (a) after having initiated a civil action pursuant to subsection (b). McManus v. Commissioner of Environmental Protection, 31 Conn. App. 105, 623 A.2d 1041 (1993). The Appellate Court therefore reversed the judgment of the trial court and remanded the case with direction to sustain the plaintiffs’ appeal. We granted the defendant’s petition for certification to appeal and now affirm the judgment of the Appellate Court on different grounds.

The defendant argues that the Appellate Court’s decision should be reversed. The defendant reasons that because subsections (a) and (b) of § 22a-44 provide independent, alternative remedies, the initiation of a civil action does not bar the subsequent issuance of an administrative order. We need not address this issue, however, because we conclude that even if the initiation of a civil action does not bar the subsequent issuance of an administrative order, the defendant did not have jurisdiction to issue the March, 1990 order.

In 1987, the legislature amended the Inland Wetlands and Watercourses Act (act); General Statutes §§ 22a-36 through 22a-45; “to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.” General Statutes § 22a-42 (a); see Public Acts 1987, No. 87-533, §§ 5, 14. Each municipality was required to “establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of” the act. General Statutes § 22a-42 (c). We held in Samperi v. Inland Wetlands Agency, 226 Conn. 579, 591-92, 628 A.2d 1286 (1993), that, pursuant to the amendments, “[t]he local inland wetlands agency was given the sole authority to license and regulate wetland activities .... The legislature, in effect . . . placed the initial and principal responsibility for striking the balance between economic activities and preservation of wetlands in the hands of the local authorities.” (Emphasis added.) As previously noted, on July 1, 1988, the department transferred jurisdiction over local inland wetlands matters to the commission.

Before both the department’s administrative hearing officer and the trial court, the plaintiffs claimed that the defendant could not properly issue the March 6, 1990 administrative order because jurisdiction had been transferred to the commission. Both the department’s administrative hearing officer and the trial court rejected this claim, on the basis of: (1) § 22a-42 (f), which provides that “the commissioner shall retain authority to act on any application filed with said commissioner prior to the establishment or designation of an inland wetlands agency by a municipality”; and (2) the fact that the letter sent by the department to the commission transferring jurisdiction explicitly retained jurisdiction over “enforcement activities currently underway.” Both the department’s hearing officer and the trial court construed § 22a-42 (f) to apply to enforcement activities as well as permit applications. In addition, both concluded that, because the defendant had filed the civil action in 1987, there had been an enforcement activity underway when jurisdiction was transferred in 1988, and therefore the defendant had retained jurisdiction over the plaintiffs’ alleged violation and could properly have issued the March 6,1990 order. We disagree.

We assume, for purposes of this appeal, that § 22a-42 (f) applies to enforcement activities as well as permit applications, and that it authorized the defendant to maintain the § 22a-44 (b) civil action against Patricia McManus after jurisdiction over wetlands matters had been transferred to the commission. Notwithstanding this assumption, subsections (a) and (b) of § 22a-44 provide independent, alternative remedies that are procedurally distinct. Conservation Commission v. Price, 193 Conn. 414, 421, 479 A.2d 187 (1984). A civil action pursuant to subsection (b) proceeds like any other judicial action, with the trial court acting as fact finder and decision maker. In contrast, if the defendant issues an administrative order pursuant to subsection (a), the aggrieved party’s recourse is a hearing before an administrative hearing officer of the department who acts as both fact finder and decision maker. While a further appeal to the trial court is allowed, the court acts as an appellate court and must defer to the agency’s findings of fact and conclusions. Furthermore, although to enforce the order it may be necessary for the defendant to initiate a civil action after an administrative order is issued, the converse is not true. An administrative order is not needed to enforce a civil judgment and cannot provide a greater remedy. Therefore, by issuing the administrative order three years after commencing the civil action, and then withdrawing the civil action, the defendant did not merely pursue an enforcement activity to its logical conclusion. Rather, the defendant abandoned the enforcement activity that had been underway and commenced a different enforcement vehicle in a different forum.

We do not believe that, in enacting § 22a-42 (f), the legislature intended to authorize the defendant to abandon a civil action pursuant to § 22a-44 (b) and initiate administrative proceedings against the plaintiffs almost two years after jurisdiction had been transferred to the commission. We recognize that environmental statutes are remedial in nature and should be construed liberally to accomplish their purposes. Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 382, 627 A.2d 1296 (1993). We note, however, that the broad construction given to § 22a-42 (f) by the department and the trial court is unnecessary to accomplish the purposes of the act, because the defendant could have enforced the act fully through the § 22a-44 (b) civil action. We therefore decline to construe the statute to authorize the issuance of an administrative order against the plaintiffs almost two years after jurisdiction had been transferred to the municipality.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 22a-44 provides in part: “(a) If the inland wetlands agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of sections 22a-36 to 22a-45, inclusive, or of the regulations of the inland wetlands agency, the agency or its duly authorized agent may issue a written order by certified mail, to such person conducting such activity or maintaining such facility or condition to cease immediately such activity or to correct such facility or condition. Within ten days of the issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect. The agency shall consider the facts presented at the hearing and within ten days of the completion of the hearing notify the person by certified mail that the original order remains in effect, that a revised order is in effect, or that the order has been withdrawn. The original order shall be effective upon issuance and shall remain in effect until the agency affirms, revises or withdraws the order. The issuance of an order pursuant to this section shall not delay or bar an action pursuant to subsection (b) of this section. The commissioner may issue orders pursuant to sections 22a-6 to 22a-7, inclusive, concerning an activity, facility or condition which is in violation of said sections 22a-36 to 22a-45, inclusive, if the municipality in which such activity, facility or condition is located has failed to enforce its inland wetlands regulations.
      “(b) Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense. Each violation of said sections shall be a separate and distinct offense, and, in the case of a continuing violation, each day’s continuance thereof shall be deemed to be a separate and distinct offense. The superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney’s fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. The moneys collected pursuant to this section shall be used by the commissioner of environmental protection, to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible.”

       General Statutes § 22a-40 (a) provides in relevant part: “The following operations and uses shall be permitted in wetlands and watercourses, as of right:
      “(1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less . . .

       General Statutes § 22a-42 provides: “(a) To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.
      “(b) Any municipality may acquire wetlands and watercourses within its territorial limits by gift or purchase, in fee or lesser interest including, but not limited to, lease, easement or covenant, subject to such reservations and exceptions as it deems advisable.
      “(c) On or before July 1,1988, each municipality shall establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of sections 22a-36 to 22a-45, inclusive. Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits. The ordinance establishing the new board or commission shall determine the number of members and alternate members, the length of their terms, the method of selection and removal and the manner for filling vacancies in the new board or commission. No member or alternate member of such board or commission shall participate in the hearing or decision of such board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. In the event of such disqualification, such fact shall be entered on the records of such board or commission and replacement shall be made from alternate members of an alternate to act as a member of such commission in the hearing and determination of the particular matter or matters in which the disqualification arose. For the purposes of this section, the board or commission authorized by the municipality or district, as the case may be, shall serve as the sole agent for the licensing of regulated activities.
      “(d) Any municipality, pursuant to ordinance, may act through the board or commission authorized in subsection (c) of this section to join with any other municipalities in the formation of a district for the regulation of activities affecting the wetlands and watercourses within such district. Any city or borough may delegate its authority to regulate inland wetlands under this section to the town in which it is located.
      “(e) Municipal or district ordinances or regulations may embody any regulations promulgated hereunder, in whole or in part, or may consist of other ordinances or regulations in conformity with regulations promulgated hereunder. Any ordinances or regulations shall be for the purpose of effectuating the purposes of sections 22a-36 to 22a-45, inclusive, and, a municipality or district, in acting upon ordinances and regulations shall give due consideration to the standards set forth in section 22a-41.
      “(f) Nothing contained in this section shall be construed to limit the existing authority of a municipality or any boards or commissions of the municipality, provided the commissioner shall retain authority to act on any application filed with said commissioner prior to the establishment or designation of an inland wetlands agency by a municipality.”

       General Statutes § 22a-43 (a) provides in relevant part: “The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8 from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district.”

       We granted certification limited to the following issue: “Does General Statutes § 22a-44 (a) prohibit the commissioner of environmental protection from issuing an administrative order to abate a violation of the wetland laws once the commissioner has initiated an action for injunctive relief, even if the civil action for injunctive relief has been withdrawn without prejudice?” McManus v. Commissioner of Environmental Protection, 227 Conn. 904, 904-905, 632 A.2d 692 (1993).

       We recognize that although this precise claim was raised and briefed before the trial court, it was neither considered by the Appellate Court nor explicitly briefed before this court. Nevertheless, this court may consider claims that fall within the scope of the certified question. Rozbicki v. Huybrechts, 218 Conn. 386, 389, 589 A.2d 363 (1991); see footnote 5.
      Moreover, it is the defendant’s own brief that has prompted our consideration of jurisdiction. Footnote 9 of the defendant’s brief states that “when this enforcement action began, Wallingford did not have a municipal inland wetlands agency and jurisdiction rested with the Commissioner. When jurisdiction was transferred to the Wallingford Inland Wetlands Commission on July 1, 1988, the Department of Environmental Protection retained authority over ongoing enforcement activities, of which this case was one. . . . When [the administrative order] was issued on March 6, 1990, it was issued by the Commissioner because it related to wetlands violations initiated prior to the existence of the Wallingford wetlands agency.” This footnote suggests that the defendant’s jurisdiction to issue the administrative order was predicated on the fact that the civil action had been initiated prior to July 1,1988. Predicating jurisdiction to issue the administrative order on the existence of the civil action appears to be inconsistent with the defendant’s other claims that subsections (a) and (b) of § 22a-44 provide independent, alternative methods of enforcing the act, and that dismissing a civil action without prejudice “leaves the parties free to litigate the matter in a subsequent action, as though the dismissed action had not been commenced. ” (Emphasis in original.) These factors have led us to decide as a threshold question whether the defendant had jurisdiction in March, 1990, to issue the order.

       General Statutes § 22a-44 (a) provides in part that the “commissioner may issue orders . . . concerning an activity, facility or condition which is in violation of said sections 22a-36 to 22a-45, inclusive, if the municipality in which such activity, facility or condition is located has failed to enforce its inland wetlands regulations.” The defendant does not claim, however, that Wallingford has failed to enforce its regulations. Therefore, the defendant cannot predicate jurisdiction to issue the administrative order on this provision.

       General Statutes § 22a-6 (e) provides: “Whenever the commissioner issues an order to enforce any statute, regulation, permit or order administered or issued by him, any person or municipality aggrieved by such order may, except as otherwise provided by law, request a hearing before the commissioner within thirty days from the date such order is sent. Such hearing shall be conducted in accordance with the procedures provided by chapter 54.” Chapter 54 of the General Statutes is the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq.

       For a discussion of the scope of judicial review under the Uniform Administrative Procedure Act, see Pet v. Dept. of Health Services, 228 Conn. 651, 660-61, 638 A.2d 6 (1994).