Opinion
FSTFA114028929S
12-02-2016
Beth Keller v. Richard Keller
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO REARGUE AND INTRODUCE ADDITIONAL TESTIMONY RE MOTION #680, DEFENDANT'S MOTION FOR SANCTIONS
Barbara M. Quinn, Judge Trial Referee.
On Friday, August 26, 2016, this court, in its role as judicial discovery master, first heard testimony and argument on the defendant's Motion for Sanctions #680 to secure full and fair discovery compliance prior to a scheduled hearing on two postjudgment motions; the defendant's motion for an educational support order and the plaintiff's motion for modification of alimony. The discovery compliance the court has patiently been monitoring since July 2016, concerns itself only with the time period from the date of the entry of the decree in July 2014 to the present time, and with the matrimonial litigation. Motion #680 relates to allegations against the plaintiff's attorney, Attorney Neal Rogan, for his willful failure to provide proper discovery. It sought sanctions against him and the plaintiff as the court deemed just and equitable. Subsequently, the plaintiff filed and the court granted a motion to reargue and present additional testimony as the motion did not give full notice of what transpired at the hearing on August 26, 2016.
The allegations against Attorney Rogan were not demonstrated by the testimony and evidence introduced at the hearing in August 2016. This court found that the true problems surrounding discovery then were occasioned by the strange and convoluted arrangements the plaintiff has chosen to make concerning the conduct of her financial affairs in the dissolution action and in the postjudgment period. That opinion has not changed with the plaintiff's introduction of new evidence, the testimony by Attorney Timothy Rastello, an attorney licensed in Colorado and previously unknown to the plaintiff in 2014 when she granted a full power of attorney to him to act in her stead with respect to all matters. Specifically, he undertook to manage the appeal of the dissolution action. He apparently also acted as her attorney at law.
1. The Previous Findings of Fact
The plaintiff, Beth Keller, did not testify at the reopened hearing. The court therefore restates the facts found concerning her testimony from its decision of September 8, 2016 as those findings remain undisturbed. The plaintiff's testimony revealed the details about how she came to provide to Attorney Timothy Rastello a full power of attorney to act in her stead. That power of attorney was signed on September 19, 2014, some months after the memorandum of decision was issued, following a long contested dissolution trial. The court accepts the plaintiff's explanation that she was emotionally not able to handle her affairs at that time and has since recovered to some extent. What is not fully credible is her need to hire an out-of-state attorney with whom she is not acquainted to receive the grant of such power over her affairs. The court acknowledges that legally she may do so, but that her decision brings with it some legal consequences as well.
The crux of the defendant's complaint in this motion is that representations made to him by local counsel as well as in an affidavit signed by Mr. Rastello indicated that Mr. Rastello had only acted for Mrs. Keller twice: once to take care of all appellate matters for her and once to attend the defendant's deposition as her representative earlier this summer in Connecticut. Recent disclosures from other sources demonstrate that more steps were taken by Attorney Rastello on the plaintiff's behalf than had been previously disclosed pursuant to the discovery ordered by this court. Again, counsel's explanations that that those steps are related to additional appellate matters are correct, but regardless of how characterized, those additional steps and the documents connected to those actions were not disclosed. In addition and more damaging, Mrs. Keller's testimony at the hearing on August 26, 2016 suggests that there are additional matters which have not yet been disclosed.
When questioned about why she had retained Attorney Rastello, an individual whom she did not know, Mrs. Keller's responses were vague and unclear, and in some requests unconvincing. In response to questions about what Mr. Rastello had done for her, she was also unclear. She did not know what he had been paid or charged for his services, but she was sure he had been paid. Given the known and uncontested facts of this case, such sums would have been advanced on her behalf by her brother, T.J. Heyman, a resident of Boulder, Colorado or her father, Arnold Heyman, M.D., now resident in California. Mrs. Keller verified that it is her relatives who introduced her to Attorney Rastello, with whom they are closely acquainted and whose business interests this attorney has represented. When questioned about whether or not a private investigator had been retained, her negative testimony was not credible in view of other responses she gave.
Mr. Rastello is the plaintiff's agent under the full power of attorney she has granted to him and he stands in her shoes. She has the authority and power to direct him and his conduct on her behalf, although he remains outside of the jurisdiction of this court, and has so indicated to the defendant. By his choice, he remains not subject to the court's jurisdiction or orders.
The court finds that the reasonable implications of the plaintiff's testimony, supported by several sources, are that measures have been taken to allow the plaintiff to claim to be unaware of the details of her financial affairs. The sources supporting this conclusion are her credible evidence at the hearing, the plaintiff's conduct in providing a full power of attorney to a person not known to her, as well as the substantial sums loaned to her by her brother and father. The court finds that the strange and convoluted measures taken to insulate her financial affairs from close scrutiny were taken on her behalf, with her full awareness and with her acquiescence.
Despite her vagueness about her financial affairs, the plaintiff is adequately informed and concerned to invoke the powers of this court to both secure the substantial discovery she desires and more alimony from her former husband. To support her need for funds, the plaintiff freely disclosed copies of the promissory notes she had signed for sums advanced to her by her brother and father, such notes purporting to be secured. She, however, remained unable to say what security had been given for these promissory notes or even who had prepared the notes she had signed or how the money had been spent except generally.
The total amount of the purported promissory notes signed since the date of the dissolution decree, as best the court can determine, is well over one million ($1,000,000) dollars. Additionally, amendments were signed to previously existing promissory notes, obligating the plaintiff to pay seven thousand ($7,000) dollars monthly commencing in 2017 and another one thousand ($1,000) dollars a month in 2018. A considerable number of the new loans for which no monthly payments are required are due in full three years from the date of their execution. All purport to be secured by the plaintiff's portion of the marital estate.
Exhibit D contains all the promissory notes and their amendments.
2. The Additional Findings of Fact
The reopened hearing was held on November 10, 2016 and Attorney Rastello did subject himself to the jurisdiction of the court and testified. He described the circumstances surrounding the decision to form a common interest agreement in this matter, previously detailed in another memorandum of decision by this court. Much of the testimony was not relevant, due to the fact that agreement was reduced to writing in February 2014 and is before this court. The agreement was not at issue in the hearing conducted on Motion #680 on August 26, 2016, in which the defendant inquired into how the plaintiff had chosen to conduct her financial affairs during the course of this postjudgment litigation. In this regard and on this reopened motion hearing, it is also not now an issue.
Attorney Rastello testified as to the circumstances surrounding his representation of Mrs. Keller, and that he thought he had met the plaintiff once before September 2014, but was mistaken. He had represented Mrs. Keller's brother, T.J. Heyman, for twenty years and her father as well. He testified he had a close acquaintance with the plaintiff's relatives. He is a civil litigator with no claimed expertise in matrimonial law. He is not licensed in the State of Connecticut. He testified he saw no conflict of interest in his continued representation of T.J. Heyman, the plaintiff's brother, Dr. Arnold Heyman, her father, as well as the plaintiff, Beth Keller. In this regard he prepared promissory notes on behalf of his clients, T.J. Heyman or Arnold Heyman, for his client Beth Keller to sign. His justification was that her Connecticut attorney, Attorney Neal Rogan, protected her interests. Just how she received independent and zealous representation from either Attorney Rogan or Attorney Rastello under these circumstances remains unclear. Add to this the fact that all payments for legal services to both counsel were made directly by the plaintiff's brother and on occasion her father. There appear to be no third-party payment agreements in existence. The plaintiff's financial circumstances are such that neither her assets nor her income make it all possible that she could repay these " loans." The marital estate, as it existed at the time of the entry of the decree of dissolution, also could not support such " loans." None of the additional testimony explains any more cogently than the plaintiff's earlier testimony why these arrangements, which are admittedly legal, were either appropriate or required.
In making its findings, the court may consider not only the direct facts before it, but also the reasonable inferences which can be drawn from those facts. In Kroll v. Curran, 303 Conn. 845, 856, 37 A.3d 700 (2012), the court notes " When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable." Further, our Supreme Court in another context has noted:
proof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypotheses. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable . . . In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred. (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 338-40, 746 A.2d 761 (2000).
The facts in this case are that a Connecticut party to a dissolution case chose to grant a full power of attorney to conduct her affairs to a Colorado attorney whom she did not know and had never before met. That person is a close acquaintance of her brother's and his expertise lies in civil litigation. His task was to deal with her appellate attorneys in Connecticut. Certainly there should be many attorneys available in Connecticut, conveniently located to her, to whom she could have entrusted her personal affairs. Neither she nor her Colorado attorney-in-fact and also attorney-at-law have provided a cogent explanation for this remarkable arrangement.
It would appear that the only plausible and logical reason for setting up these convoluted arrangements was to permit the plaintiff's relatives to exert significant direct control of the litigation and to make it extraordinarily difficult to secure full and fair discovery in the postjudgment matrimonial litigation as no one lawyer is in possession of all the facts. Each can claim not to know. The plaintiff freely admits that she does not keep track of her financial affairs and claims not to understand them. The defendant's arguments and claims as to the purpose of this arrangement are not far-fetched.
In the meantime, the court notes that the discovery orders which were part of its orders on September 8, 2016, had apparently been complied with fully on November 15, 2016, when the court vacated the last of the temporary stays it had issued. The court does find that the extraordinary resistance to discovery compliance on the part of the plaintiff's attorneys and/or agents for many months and these convoluted representational arrangements warrant these findings. They should be considered in future proceedings concerning these parties.
The court has now learned that the defendant has filed on December 1, 2016 a Motion for Sanctions for the plaintiff's alleged failure to abide by the restricted discovery order regarding the out-of-state deposition and the subpoena which accompanied it. That restricted discovery order was allegedly not complied with by plaintiff's New York counsel or apparently Attorney Rogan. While the court appreciates it has no jurisdiction over New York counsel, the court does have jurisdiction over the plaintiff and her local counsel. The court refers that matter to the court hearing the substantive motions for its consideration. Given the extraordinary resistance to proper discovery compliance on the part of the plaintiff and her counsel up to this point, sanctions, if the pending claims are proven, could include suspending her right to proceed on her motions until discovery orders have complied with and/or economic sanctions.