DeMauro v. DeMauro

794 A.2d 112, 147 N.H. 478, 2002 N.H. LEXIS 15
CourtSupreme Court of New Hampshire
DecidedMarch 8, 2002
DocketNo. 2000-147
StatusPublished
Cited by5 cases

This text of 794 A.2d 112 (DeMauro v. DeMauro) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeMauro v. DeMauro, 794 A.2d 112, 147 N.H. 478, 2002 N.H. LEXIS 15 (N.H. 2002).

Opinion

Dalianis, J.

In this divorce proceeding, the defendant, Joseph M. DeMauro, appeals an order of the Superior Court {Murphy, J.) awarding the plaintiff, among other things, thirty-five million dollars in marital assets and alimony of twenty thousand dollars per month. He argues that the superior court’s valuation of the marital assets was erroneous because it relied upon remote and speculative evidence. The plaintiff moves to dismiss the appeal on the ground that the defendant remains in contempt of various superior court orders relating to the divorce action. Having carefully considered the parties’ arguments and the circumstances involved, we dismiss the defendant’s appeal.

This is the second time this case has reached us on appeal. See DeMauro v. DeMauro, 142 N.H. 879 (1998) (DeMauro I). In summarizing the relevant facts of this case, we incorporate by reference the facts detailed in DeMauro I.

In DeMauro I, we held that the defendant had the right to assert his privilege against self-incrimination relative to certain questions regarding his financial condition, and remanded the case for further proceedings. Id. at 886. We noted that “[t]he defendant’s assertion of privilege, however, cannot be used as a means of preventing the orderly resolution of civil matters and deprive the plaintiff of her rights.” Id. at 887 (quotation and brackets omitted). Thus, we stated that the trial court, among other things, could order the defendant to execute consent waivers or authorizations consistent with those permitted in federal cases for the [480]*480purpose of discovering his assets. See id. at 888; Doe v. United States, 487 U.S. 201, 215-16 (1988).

In Doe v. United States, the Supreme Court held that a court order requiring a defendant to execute consent forms directing banks to release any records regarding assets he may hold did not violate his right against self-incrimination protected by the Fifth Amendment. See Doe, 487 U.S. at 219. The Court reasoned that executing the form did not violate his constitutional rights because it was not testimonial in nature since “neither the form, nor its execution, communicates any factual assertions, implicit or explicit, or conveys any information to the Government.” Id. at 215.

On remand, the trial court ordered the defendant to produce records and to execute authorizations for the purpose of discovering assets, but he refused to do so. Eventually, the trial court appointed a receiver to execute the waivers in an attempt to ascertain the defendant’s actual financial situation. The receiver was, however, unable to verify many of the defendant’s assets, including assets believed to be kept in foreign financial institutions.

At a hearing on the merits, given the lack of current information regarding the defendant’s financial status, the plaintiff was allowed to introduce, over the defendant’s objection, an extrapolation of historical data together with projections of the defendant’s then current financial situation. This extrapolation, prepared by her expert, was based upon bank records the plaintiff had in her possession.

In its divorce decree, dated February 4, 2000, the trial court noted that the defendant was found to be in contempt for, among other things, failing to produce court-ordered authorizations to determine his financial status, and for failing to provide temporary support to the plaintiff. As a result, warrants were issued for the defendant’s arrest. In addition, the court found that

the defendant ha[d] indicated to the plaintiff that unless she acceded to his offers for the payment of alimony and division of marital property, she w[ould] never receive anything from him and that he would continue, with the aid of his vast financial resources, to avoid service of process and arrest, a threat which has proven to be all too accurate to date.
The defendant ha[d] been engaged in a continuing and calculated effort to conceal the true extent of his business and personal assets by investing monies in off-shore accounts and in various foundations formed in foreign jurisdictions.

[481]*481The trial court awarded the plaintiff thirty-five million dollars, which it determined was no more than fifty percent of the value of the marital assets and represented a “fair and equitable division of the parties’ marital property to the extent that the marital assets are known in light of defendant’s refusal to disclose their extent,” In addition, the trial court awarded the plaintiff alimony in the amount of $20,000 per month for five years.

On appeal, the defendant argues that the trial court’s valuation of the marital assets was erroneous because it relied upon evidence that was remote and speculative. He also argues that the trial court penalized him for exercising his right to remain silent. The plaintiff argues, however, that the defendant’s appeal must be dismissed because he continues to stand in contempt of trial court orders, specifically, his failure to pay spousal support or to comply with the court’s order to execute authorizations for financial records. For the reasons discussed below, we dismiss the appeal.

The issue of whether an appellate court may dismiss a civil appeal when the appellant is in contempt of a trial court order is a question of first impression for this court. We have, however, addressed the issue in the context of criminal appeals, see State v. Patten, 134 N.H. 319 (1991), holding that “when a defendant escapes from confinement and remains a fugitive from justice, he or she has forfeited the right to appellate review.” Id. at 321. A number of jurisdictions that have addressed this issue as to civil matters have held that an appellate court may dismiss an appeal by a party who has refused to comply with a trial court order. See, e.g., TMS, Inc. v. Aihara, 83 Cal. Rptr. 2d 834, 834-35 (Ct. App. 1999); Schmidt v. Schmidt, 610 A.2d 1374,1376-77 (Del. 1992); Keidaish v. Smith, 400 So. 2d 90, 91 (Fla. Dist. Ct. App. 1981); Prevenas v. Preverías, 227 N.W.2d 29, 29-30 (Neb. 1975). The rationale underlying these decisions is that “it violates the principles of justice to allow a party who flaunts the orders of the courts to seek judicial assistance.” D’Aston v. D Aston, 790 P.2d 590, 593 (Utah Ct. App. 1990).

For example, in Schmidt, the court dismissed an appeal challenging a trial court’s division of property where the appellant failed to comply with a trial court order to place a specified sum of money in escrow pending the division of property. See Schmidt, 610 A.2d at 1375-76. In its discussion, the court noted that the appellant was in defiance of a trial court order and a fugitive from justice, avoiding enforcement of the contempt finding and capias outstanding against him. See id. at 1376. Under the circumstances, the court held that because the appellant did not challenge the contempt finding or purge his contempt, he would not be allowed to contest the merits of the underlying case. See id. at 1377.

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Cite This Page — Counsel Stack

Bluebook (online)
794 A.2d 112, 147 N.H. 478, 2002 N.H. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demauro-v-demauro-nh-2002.