sorrentino federal complaint against judge mark gould

8/9/2019 Sorrentino Federal Complaint Against Judge Mark Gould

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C. NATURE OF CASE

Plaintiff asserts that the following facts are documented court records at the

Bridgeport Superior Court in the case

of

Saverio A. Sorrentino

v

Kathryn M

Sorrentino, Docket No. FBT-FA-06-4015691-S in which the trial court judge,

Mark T. Gould, presided over a a series of hearings from October 15, 2009 to

May 20, 2010, in which he violated Kathryn M Sorrentino's Constiutional Rights

and incarcerated her.

D CAUSE OF ACTION

CLAIM I: THE TRIAL COURT MARK T. GOULD ERREDNIOLATED

KATHRYN M. SORRENTINO'S CONSTITUTIONAL RIGHT TO DUE PROCESS

WHEN HE FAILED: A) TO ADVISE KATHRYN M. SORRENTINO OF HER

RIGHT TO APPOINTMENT OF COUNSEL

AND

B) FAILED TO APPOINT

COUNSEL IN A CONTEMPT HEARING IN WHICH SHE FACED POTENTIAL

INCARCERATION,

AND

IN DOING SO VIOLATED HER CONSTITUTIONAL

RIGHT TO DUE PROCESS.

STANDARD FOR REVIEW:

Plain Error Doctrine.

Kathryn

M

Sorrentino relies on the facts as presented above and

supported by the transcript of the October 15, 2009, hearing and the December

15, 2009 hearing to support her assertion that Mark T Gould's failure to timely

appoint counsel presents extraordinary circumstance as reasoned

in tate

v

Go/ding supra 2 3 Conn. 239, . In addition, the plain error doctrine is reserved

for truly extraordinary situations where the existence of the error is so obvious

that it affects the fairness and integrity

of

public confidence in the judicial

proceedings.

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Kathryn M Sorrentino was denied her Constitutional right to due process

when Mark

T

Gould failed to advise Kathryn

M

Sorrentino of her right to

appointment of counsel and failed to appoint counsel t the commencement of

the hearing/trial on the motion for contempt. Therefore the first issue

of

this case

presents the straightforward and relatively simple rule that a defendant can be

put to trial only after the application of his or her due process right to counsel,

and that when the trial court fails to provide said right, all subsequent

ruling/orders are not upheld. Constitutional right to due process guarantees every

accused individual has a right to effective assistance of counsel.

The due process clause of the fourteenth amendment of the United Sates

Constitution guarantees the right to appointed counsel to any indigent civil

contemnor who might be incarcerated, Ridgeway v. Baker, 720 F.2d 1409, 1413

5

th

Gir. 1983)

1 Kathryn M. Sorrentino's Fourteenth Amendment Right to Counsel

Attaches in her Hearing/Tria l on Plaintiff's Motion for Contempt.

It is the defendant's interest in personal freedom, and not simply the

special Sixth and Fourteenth Amendment right to counsel in criminal cases,

which triggers the right to appointed counsel.

Lassitel} v

Dept.

o f

Social

ServicesorDurham

County, 45

U.S 18 1981). It would be absurd to

distinguish criminal from civil incarceration; from the perspective of the person

incarcerated, the jail is just as bleak no matter what the label used. In addition,

the line between criminal and civil contempt is a fine one, and is rarely as clear

as the state would have us believe.

The right to counsel, as an aspect

of

due process, turns not on whether a

proceeding may be characterized as criminal or civil , but on whether the

proceeding may result in a deprivation of liberty. Ridgeway v Baker, 720F.2d

1409 1413 1

Cir. 1983).

U.S. Supreme Court has long held that the Sixth Amendment grants as

indigent defendant the right to state-appointed counsel

in

a criminal case.

GIdeon v Wainwdght,

37

U.S 335

1963). And the U.S. Supreme Court has

held this same rule applies to criminal contempt proceedings (other than

summary proceedings. United

States

v

Dixon,

509 U. S 688 (1993).

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Although the Sixth Amendment (A1 does not govern civil cases, both the Fifth

Amendment (A1 and the Sixth Amendment (A

1

are incorporated into and

thereby enforced by the Fourteenth Amendment. The United States Supreme

Court and the Connecticut Supreme Court have looked to the analysis of the

Fifth and Sixth Amendments by the Courts, to establish the process for

application o the Fourteenth Amendment to civil cases, including civil contempt

cases.

The U.

S.

Supreme Court

in

Turner

v

3 U 2507 2011) fully

analyzed the application o the constitutional amendments regarding due process

with the State

o

South Carolina's tradition/law that does not provide counsel for

defendants

in

a hearing/trial for civil contempt.

In

the United States Supreme

Court's decision, the trial court's ruling was overturned but not based on South

Carolina's failure to proved counsel. It was overturned because

in Turner

v

Rogers,

the trial court failed to provide, at a hearing/trial for contempt,

constitutional due process right

in

accordance to/enforced by state statutory

law/ safeguards

requiring the very literatim

o

a finding that the contempt

was willful The United States Supreme Court thus identifying exception to right

to counsel that exists but only i f trial court adheres to the statutory structure o a

contempt hearing/trial which mandates that any finding o contempt must be

supported by the fact that the contempt was willful. Allowing no legal support for

judicial presumption: or appearance , nor any judicial discretion based on

capability. Simply put, the defendant must be shown/proved by the

plaintiff/evidence submitted, to have the ability to comply with

an

order. Thus

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The right to counsel is merely a logical extension

of

the right to counsel

in criminal cases in which an accused is incarcerated. The court's recognition of

a

due

process right to counsel in civil contempt cases in which the contemnor

might be imprisoned reflects a judgment that it is the defendant's interest in

personal freedom, and not simply the special Sixth and Fourteenth Amendments'

right to counsel in criminal cases, which triggers the right to counsel. .. Mastin

v

Fel/erhoff, supra; Ridgeway

v

Baker, supra; Thus cases discussing the nature

of the Sixth Amendment right to counsel in criminal cases are instructive

regarding the scope

of the

Fourteenth Amendment right to counsel in civil cases

in which a litigant might be incarcerated The trial court has an obligation to

inform the potential contemnor

of

his right to appointed counsel to ensure that

any waiver

of

the right to counsel is intelligent and competent. In re Jessen, 738

F

Sup.

960 963

WO.N.C.

1990);

see

Johnson v Zerbst 304 US 58

S CI 8 LEd.

1461 (1938); The constitutional right to an accused to be

represented by counsel invoke, of itself, the protection of a trial court, on which

the accused ... whose life or liberty is at stake ... is without counsel. This protecting

duty imposes the serious and weighty responsibility upon the trial judge of

determining whether there is an intelligent and competent waiver

of

the accused.

While an accuse may waive the right to counsel, whether there is a proper waiver

should be clearly determined by the trial court, and it would be fitting and

appropriate for that determination to appear on the record, Jonson

v

Zerbst

supra.

In Sorrentino

v

Sorrentino, as in Emerick, the trial court Mark

T

Gould did not

advise Kathryn

M

Sorrentinio of either her right to be represented by

counselor

her

right to appointed counsel

in

the event that she was indigent, and

in

Sorrentino, like wise, Judge Mark

T

Gould failed to state on the record that he

had eliminated incarceration as a possible penalty in the event that Kathryn M.

Sorrentino was adjudicated in contempt. Thus Mark

T

Gould's failure to advise

of

right to counsel and then upon finding

of

indigence to appoint counsel for

Kathryn

M

Sorrentino ran afoul of the Sixth and Fourteenth Amendment to the

United States Constitution, as well as, CT. Practice Book Sec. 25-63.

2. Kathryn M.Sorrentino's Right to Counsel Attached at the Commencement of

the HearinglTrial on Saverio A. Sorrentino's Motion for Contempt.

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Kathryn M. Sorrentino appeared before Mark T. Gould on December 15,

2009 for a hearing on Save rio Sorrentino's motion for contempt (filed September

18 2009

see entry 196.88). Upon being duly sworn

in,

the two issues

of

the

motion for contempt were presented Kathryn

M.

Sorrentino for her testimony

a

the listing

of

the Curtis Terrace property by Kathryn

M.

Sorrentino, for which Mark

T Gould found her not in contempt at the time of the hearing and, b) the payment

of

the Curtis Terrace mortgage by Kathryn

M.

Sorrentino, pursuant to the parties'

settlement agreemenUdivorce decree. The record clearly shows and it

is

undisputed that Mark

T

Gould did not advise the Kathryn

M.

Sorrentino

of

any

right to appointment

of

counsel, nor was counsel appointed to here at this time.

The United

States Supreme Court in

Kirby

v

Illinois 4 6

U S 682 1972)

has determined right to counsel, Attaches upon commencement of adversarial

judicial proceedings against the defendant. Whether by way of formal charges,

preliminary hearing, indictment, information or arraignment.

In Crist v. Bretz, 437 U.S.28 (1978) the U.S. Supreme Court determined

(although

in

Bretz analyzing the attachment

of

double jeopardy) Fourteenth

Amendment protections include right to counsel and therefore Bretz

is

properly

used by the Defendant to support her argument that right to counsel attaches at

the start of a hearing/trial, and not as

in

the Defendant's case at the tail end of

what turned into a trial spread out over the course of six months. The Crist Court

determined, The federal rule that jeopardy attaches in a jury trial when the jury

is

empaneJled and sworn, a rule that reflects and protects the defendant's interest

in retaining a chosen jury,

is

an integral part of the 5

th

Amendment guarantee

against double jeopardy made applicable to the States by the Fourteenth

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Amendment. Hence, a Montana statute providing that jeopardy does not attach

until the first witness is sworn cannot constitutionally be applied in a jury triaL

Here, the Crist Court although addressing the issue

of

attachment

of

right to

Fourteenth Amendment/double jeopardy by ruling that attachment of right

precedes the swearing in

of

witness, allows reasoning

of

due process violation to

support Defendant's argument that defendant's right to counsel attached [at

least] upon her being sworn in .

3. The Reviewing Court Need Not Determine Whether the Error Was Ha rml ess.

In Emedck, Where a trial court has failed to inform a defendant of his

constitutional right to appointed counsel, WE WILL NOT ATIEMPT TO

DISCERN WHETHER THE ERROR WAS HARMLESS. SUCH FAILURE IS

REVERSIBLE ERROR. See

Johnson v Zerbst, supra, In

Re

Jessen, supra,

GIdeon v Waindght, supra (no harmless error analysis where a criminal

defendant was deprived

of

his constitutional right to counsel).

The failure

to

advise the defendant properly is fatal

not

only

to

the finding of contempt,

but

also to the orders related thereto:

the order for

the payment of counsel

fees

arising

out

of

the

finding

of

contempt the

finding that

an arrearage

existed and the order to

pay

the

arrearage.

Emenckcontinues, Finally, the risk

of

an erroneous deprivation

of

liberty by

refusing to appoint counsel for the indigent petitioner is high. The courts have

long recognized the importance of a lawyer in protecting the right to liberty. See

Gideon

v

Wainright, 372

US

supra; the presence

of

counsel goes to the very

integrity of the fact-finding process. As the Supreme Court has noted:

Even the intelligent and educated layman has small and sometimes no skill in

the science

of

law ... he lacks both the skill and knowledge adequately to prepare

his defense, even though he have a perfect one. He requires the guiding hand

of

counsel at every step

in

the proceeding against him. Without it though he be not

guilty, he faces the danger of conviction because he does not know how to

establish his innocence.

Powell v Alabama, 287 U

S

45 69 53

SeT

55 64

77 L Ed 158 (1932).

CLAIM 2: THE TRIAL COURT

MARK

T. GOULD RULED WITHOUT

JURISDICTION/ERREDNIOLATED THE KATHRYN M. SORRENTINO'S

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CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN HE FAILED/REFUSED

TO RULE ON THE KATHRYN M. SORRENTINO S STATED OBJECTION TO

HEARING ON CONTEMPT MOTION FOR HER FAILURE TO PAY

MORTGAGE AND ARREARAGE AND

N

DOING SO OVERRULED THE

KATHRYN M. SORRENTINO S OBJECTION TO HEARING

ON

ISSUE OF

MORTGAGE AND ARREARAGE PAYMENTS.



Kathryn M. Sorrentino claims plain error doctrine

in

that Mark T. Gould is

without jurisdiction to refuse to rule

on

a motion presented. Defendant relies

on

CT.G.S.

Sec. 4b-81 (a), where cited

in

Bunche

v.

Bunche, 180 Conn. 285 (1980), it was

reasoned,

... the statute that enables the trial court to transfer property

in

a marital

dissolution action, the court does not retain continuing jurisdiction over any

portion o the judgment that constitutes an assignment o property.

1. Kathryn M. Sorrentinoi Statement Advising Mark T. Gould that the Issue o Her

Payment o the Mortgage for the Marital Property has Been Heard and Ruled

Upon Before by a Court o Competent Jurjsdiction was a Legally Sufficient

Objection to Hearing on Said Issue and Constitutes Preservation

o

a Claim

o

Error and is Therefore Subject to Review by Appeal.

In

amar

Rowe v Supedor Court; Judicial Distr ict ofNewHaven

The plaintiff-appellant was found guilty on two counts of contempt o

court.

In

his writ o error, the plaintiff contended that the second finding of

contempt violated the common law, as well as his constitutional rights to due

process and to protection against

double jeopardy. Before the Trial Court rendered its second finding o contempt,

the attorney for the plaintiff stated the following objection: I understand that the

likelihood

is

that the court will find us

in

contempt, but I think that.

..

this question

basically, it's essentially the same fact scenario and it is just rewording the

question, and under the circumstances I would ask the court not to impose a

sentence that is consecutive because its all one set

o

circumstances that's being

questioned about. .. The appeal court reasoned, Although the objection was not

stated artfully ... the

plaintiff did assert the narrowest theory o the claim that he

raises

in

his writ

o

error-namely that he could not be punished for multiple

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contempt's ... Because the trial court appeared to have understood and rejected

this argument, the appeal court found that the plaintiff had preserved the issue

of

double jeopardy.

Kathryn

M.

Sorrentino declared to Mark

T

Gould that the issue of the

payment

of

the mortgage had been heard and ruled upon before by the Trial

Court (Pinkus, J.) and that the Trial Court (Pinkus, J.) had found that Kathryn

M.

Sorrentino as not

in

contempt of court (Transcript: March 26, 2009, pg.16, lines

3 4

5). The Trial Court (Gould, J.) responded by stating, All right. I

understand what your claims are. (Transcript: December 15, 2009, pg. 22, lines

9 -15). This on top

of

what transpired at the hearing on October 15, 2009,

wherein Judge Gould referred the issues of the motion for contempt back to

Judge Pinkus, is evidence, on the record, that Judge Gould understood that

issue of the mortgage payments had been heard and ruled upon. Here, like in

Rowe though presented not artfully, Kathryn M. Sorrentino did assert her

objection to the issue of the payment of the mortgage on the grounds that she

had already been found to have not been

in

contempt for the same charge.

2. Trial Court Mark T. Gould's Failure/Refusal to Rule on Kathryn M. Sorrentino's

Objection to Contempt Hearing

on

Issue of her payment of Mortgage

as

Denial.

In

Ahneman v Ahneman, 243 Conn. 47 Conn. Supreme Court 1998)

The trial court's decision not to consider the defendant's motions was the

functional equivalent of a denial of those motions. Like a formal denial, the effect

of

the court's decision refusing to consider the defendant's motions during

pendency of the appeal was to foreclose the possibility

of

relief from the court on

those issues, unless and until the resolution

of

the appeal required further

proceedings. Indeed, the refusal to consider a motion is more deserving of

appeal review than a formal denial, because the defendant not only has been

denied relief; she has been denied the opportunity even to persuade the trial

court that she is entitled to that relief ..

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.. We next consider whether the trial court had the discretion to refuse to

consider the defendant's post judgment motions concerning financial issues. We

consider this issue because it is inextricably linked to the nature of our remand.

Normally, when we conclude that the Appellate Court has improperly failed to

reach an issue concerning a decision by the trial court, we remand the case to

that court for consideration

o

the merits

o

that issue. Under our supervisory

powers over proceedings on appeal, however, this court also has the authority to

address the subject

o

the trial court's decision. See Practice book Sec. 4183;

Matza

v

Matza,

226 Conn. 66

(1993).

In the present case, our review o the propriety o the trial court's

decision is warranted because a remand to the Appellate Court for review in the

normal fashion would engender significant confusion. On the one hand, we have

characterized the decision

o

the trial court as the functional equivalent of a

formal denial o the motions at issue here, which suggests that, on remand, the

Appellate Court should perform its function in accordance with its normal scope

o

review, see e.g., Crowley v Crowley 46 Conn. App. 90 699

A d

1029

(1997).

( Orders [of trial court

in

domestic relations cases] will not be reversed

unless its finding have no reasonable basis in fact or it has abused its discretion,

or unless, in the exercise o such discretion, it applies the wrong standard o

law. ) On the other hand, however, because the trial court has not rendered any

factual or legal basis conclusions regarding the defendant's motions, the

Appellate Court cannot perform a review. Therefore, in order to avoid confusion,

we will review the propriety o the trial courts decision ourselves.

In

addition

invoking our supervisory powers to reach the merits

o

their claim concerning the

decision

o

the trial court in this present case will avoid the necessity of

inordinate further delay.

O Bymachow

v

O Bymachow, 10

Conn. App

521 A d

599.

The CT Supreme Court having considered the issue decided: Turning to

the merits, we agree with the defendant's assertion that the trial court's decision

to refuse to consider her motions on financial issues was improper. The simple

reason for that conclusion is that the trial court lacked the authority to refuse to

consider the defendant's motions.

CLAIM

3:

TRIAL COURT JUDGE MARK

T

GOULD ERRED/RULED WITHOUT

JURISDICTIONNIOLATED KATHRYN M. SORRENTINO S CONSTITUTIONAL

RIGHT TO DUE PROCESS WHEN IT HELD JURISDICTION OVER RULED ON

AN ISSUE THAT WAS ALREADY HEARD AND RULED UPON BY A COURT

OF COMPETENT JURISDICTION

STANDARD OF REVIEW:


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Kathryn

M.

Sorrentino relies on the plain error doctrine. Kathryn

M.

Sorrentino relies on the facts as presented above and supported by the transcript

of

the October 15, 2009, hearing and the December 15, 2009 hearing to support

her assertion that Mark

T.

Gould's refusal to hear and thereby over-ruling her

objection constitutes a violation

of

her due process rights thereby presenting

extraordinary circumstance as reasoned

in State v Golding supra

213

Conn.

239, .. . In addition, the plain error doctrine is reserved for truly extraordinary

situations where the existence

of

the error is so obvious that it affects the

fairness and integrity

of

public confidence in the judicial proceedings.

Additionally, in Golding, .. under second prong

of

the analysis

we

must

determine whether the consequences

of

the error are so grievous as to be

fundamentally unfair or manifestly unjust.. .only

if

both prongs

of

the analysis are

satisfied can the appealing party obtain relief.

1. Kathryn M. Sorrent ino is Entitled

to

Claim the Fourteenth Amendment Double

Jeopardy Clause.

Kathryn M. Sorrentino appeared before the Trial Court Judge Mark T.

Gould on October 15, 2009 in a hearing on Saverio A Sorrentino's motion for

contempt (filed September 18, 2009). Judge Gould heard the issue

of

the listing

of the property

t

212 Curtis Terrace and upon attempting to consider the issue

of

the claim that Kathryn M. Sorrentino failed to pay the mortgage

for

same, she

stated (Transcript:

11/15/2009

P9. 5

lines 20-27, and

P9.

6

lines 1-5) that the

issue regarding the payment

of the

mortgage had already been heard by Judge

Pinkus and he had ruled that she was not

in

contempt. Judge Gould referred

Saverio A Sorrentino's motion for contempt back to Judge Pinkus. A hearing

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ensued

on

November 12, 2009, attended Saverio A. Sorrentino where the sole

issue presented was the listing of the property at 212 Curtis Terrace. Kathryn M.

Sorrentino was not present and because the motion was not in the file, Judge

Pinkus refused to hear the motion. Scheduled for December 15, 2009, for a

hearing on Save rio A. Sorrentino's motion for contempt (filed September 18,

2009).

Upon being duly sworn

in,

the two issues of the motion for contempt were

presented to Kathryn M. Sorrentino for her testimony a the listing of the property

by Kathryn

M.

Sorrentino, for which the Trial Court Judge Mark

T.

Gould found

Kathryn

M.

Sorrentino not

in

contempt and,

b

the payment

of

the Curtis Terrace

mortgage by Kathryn

M.

Sorrentino, pursuant to the parties' settlement

agreement/divorce decree (DS-131 and 143. Kathryn

M.

Sorrentino

on

the record

(Transcript

12/15/2009

pg. 22, lines 9-15) advised the Court that the issues of

Saverio A. Sorrentino's motion for contempt were already heard AND RULED

ON by the Court (Pinkus, J.) Transcript March 26, 2009, P9.1, lines 3,4&5}.

Kathryn M. Sorrentio's argument is well proved in the reasoning and decisions of

the United States Supreme Court.

In

Smalis

v

Pennsyvania

7

U.S. 140

(1986) the Court reasoned:

... Whether the trail

is

to a jury or, to the bench, subjecting the defendant to post

acquittal fact finding proceedings going to guilt or innocence violates Double

jeopardy Clause. The constitutional prohibition against double jeopardy was

designed to protect an individual from being subjected to the hazards of trial and

possible conviction more than once for an alleged offense .

..

through out most

of

our history, this clause was binding only against the Federal Government. In

Palko v Connecticut 302 U.S.

319 (1937), the Court rejected an argument that

the Fourteenth Amendment incorporated all the provisions

of

the first eight

Amendments as limitation on the States and enunciated the due process theory

under which most of those Amendments do now apply to the States. Some

guarantees in the Bill

of

Rights, Justice Cardozo wrote, were so fundamental

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they are of the very essence

of

the scheme

of

ordered liberty and neither liberty

nor justice would exist if they were sacrificed. But the double jeopardy clause,

like many other procedural rights of defendants, was not so fundamental; it could

be absent and fair trials could still be had.

Of

course, a defendant's due process

rights, absent double jeopardy consideration per se, might be violated if the State

created a hardship so acute and shocking as to be unendurable, but that was

not the case

in

Palko.

In

Benton

v.

Maryland 395

US.

784,

794-95 (1969),

however, the Court concluded that the double jeopardy prohibition ... represents

a fundamental ideal in our constitutional heritage ... once it is decided that a

particular Bill

of

Right guarantee is fundamental to the American scheme of

justice,

'

the same constitutional standards apply against both the State and

the Federal Governments. Therefore, the double jeopardy limitation now applies

to both federal and state governments and state rules on double jeopardy, with

regard to such matters as when jeopardy attaches, must be considered in the

light of federal standards.

In doctrine

of Benton v. Maryland

395 US. 784, puts the issues in the

present case

in

a perspective quite different from that which the issues were

perceived in Hoag

v.

New

Jersey Supra. The question is no longer whether

collateral estoppel is a requirement of due process, but whether it is part of the

Fifth Amendment's guarantee against double jeopardy, and if collateral estoppel

is embodied

in

that guarantee, then it's applicability

in

a particular case is no long

a matter to be left for a state court determination within the broad [397 U.S.436,

443] bounds

of

fundamental fairness, 'but a matter of constitutional fact we must

decide through an examination

of

the entire record. Cf.

New York Times

Co.

v.

Sullivan

376 US. 254, 285,

728-729d; Nemotko v. Maryland 340

US 268, 271,

327; Collateral estoppel is an awkward phrase, but it stands for an extremely

important principle in our adversary system of justice. It means simply that when

an

issue

of

ultimate fact has once been determined by a valid and final judgment,

that issue cannot again be litigated between the same parties

in

any future

lawsuit.

'Although first developed

in

civil litigation, collateral estoppel has been an

established rule

of

federal criminal aw at least since this Court's decision more

than 50 years ago

in United States

II:

Oppenhiemer

4

U W 85

As Mr. Justice

Holmes put the matter

in

that case. It cannot e that the safeguards

of

the

person, so often and so rightly mentioned with solemn reverence, are less than

those that protect from liability in debt.

'242

US at 87, 37 S Ct. at

69.7.

As a

rule

of

federal law, therefore, '(I) t is much too late to suggest that this principle is

not fully applicable to a former judgment in a criminal case, either because of

lack

of

'mutuality' or because the judgment may reflect only a belief that the

Government had not met the higher burden

of

proof exacted

in

such cases for

the Government's evidence as a whole although not necessarily as to every link

in the chain.' United States II: Kramer 89 F 2d 909 913 The ultimate question

to be determined, then, in the light of Benton II: Maty/and supra is whether this

established rule of federal law is embodied in the Fifth Amendment guarantee

against double jeopardy. We do not hesitate to hold that it is. For whatever else

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IMPLICATION AND CONJECTURE barred when considering contempt appeal.

Id 460

Kathryn M. Sorrentino's failure to pay mortgage as per settlement

agreement/divorce decree is due to Save rio A. Sorrentino's breach

of

settlement

agreement/divorce decree regarding monies that were to be paid to Kathryn M

Sorrentino. Saverio A. Sorrentino has, via court order, modified amount

of

money

paid to Kathryn

M

Sorrentino does not remove her dependency on sum total

of

settlement agreement/divorce decree, but rather it shows that Saverio A.

Sorrentino is responsible for Kathryn M Sorrentino's inability to pay mortgage,

and that through no fault

of

her own has been unable to adhere to settlement

agreement/divorce decree and that Kathryn M. Sorrentino's failure to adhere to

settlement agreement/divorce decree IS

NOT

WILLFUL.

.. the contemnor, through no fault

of

his own, was unable to obey the court's

order.

Tobey v Tobey 65 Conn 742, 746, A d2 1974)

The Trial Court (Pinkus J.) found as much at the contempt hearing stating

(to the

Plaintiff), 1don't have the tools to fix your problems. I don't have the tools, [to]

have you

go

back to

what

you may heave been, earned at one time, get the

houses valued at

what

they were at one time, and sold. I don't have the ability to

do that. ... For the record your motion for contempt is Lcan't find that

there is any willful violation of a court order. (Transcript:

3/2/2009

P9 15, lines

5-10 and P9 , 1, lines 3-5) See: Schedule 8 (t) ,

CLAIM

5: THE

TRIAL

COURT

MARK

T.

GOULD ERREDNIOLATED

KATHRYN M. SORRENTINO S CONSTITUTIONAL RIGHT TO DUE PROCESS

WHEN IT

HELD

JURISDICTION ON

AN

ISSUE INVOLVING A

MARITAL

ASSET ALREADY

DISPOSED OF AT THE DISSOLUTION OF THE

MARRIAGE AND WHEN

HE ORDERED KATHRYN M. SORRENTINO TO

TRANSFER

(QUITCLAIM) PROPERTY TO

SAVERIO A.

SORRENTINO

PREVIOUSLY DISPOSED IN THE DIVORCE DECREE.

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STANDARD OF REVIEW:


Kathryn M. Sorrentino relies on the plain error doctrine. Asserting that Mark T

Gould erred/violated her due process rights when he held jurisdiction

on

a marital

asset that was disposed at the time of the parties divorce. For that issue Kathryn

M. Sorrentino believes review is plenary and must be decided by the application

of correcUlegallaws governing the issue.

Appellate review under the clearly erroneous standard is a two-prong

inquiry. [W] e first determine whether there is evidence to support the finding. If

not, the finding is clearly erroneous. Even if there is evidence to support it

however, a finding is clearly erroneous if

in

view of the evidence and pleadings

in

the whole record {this court} is left with the definite and firm conviction that a

mistake has been committed.

Buddenhagen

v

10

Conn 4

(1987),

quoling Doyle

v

Kulesza,

197,

Conn

101

(1985).

The courts judgment in an action for dissolution of a marriage is final and

binding upon the parties, where no appeal is taken there from, unless and to the

extent that the statutes, in common law or rules of court permit the setting aside

or modification of the judgment.

Bunche

v

Bunche, 180 Conn.

285

On May 27 2007 the Kathryn M. Sorrentino and Saverio

A.

Sorrentino

signed a settlement agreement that was incorporated into the divorce decree

on

November 29, 2007. Stipulated therein the disposition of the marital property.

The Trial Court, Judge Gould, at a hearing on April 7 2010, ordered Kathryn

M.

Sorrentino to quitclaim her portion of property to Saverio

A.

Sorrentino, property

that had already been disposed of in a settlement agreemenUdivorce decree.

Kathryn

M.

Sorrentino claims that

in

so ordering, Mark

T

Gould violated her due

process rights which resulted in Kathryn M. Sorrentino's incarceration (May 10

2010) for refusing to sign quitclaim and loss of property rights protected by

Fourteenth Amendment.

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1

Trial Court Judge Mark T Gould had no Jurisdiction Over the Issue of the

Marital Assets (Property Divisiont

The agreement was ordered incorporated ... into the dissolution decree. A

judgment rendered

in

accordance with such a stipulation

of the

parties

is to

be

regarded and construed

as a contract. (Internal quotation marks omitted).

Issler v

IssIe ; 250 Conn. 22fi

234-34

737A 2d

383 (1999). See also

Miha/yak

v Mtha/yak, supra 30 Conn. App., 522 Judgment that incorporates

separation

agreement

to be regarded as

contract and construed

pursuant

to

contract

law). [I] nterpretation of an agreement

is

a search for the intent of

the parties.

Lavigne

v

Lavigne, supra,

427-29. A judgment rendered

in

accordance with the stipulation of the parties is to be construed and regarded as

a binding contract. Caracansi

v

Caracansi. 4 Conn. App. 645. 650. 496 A

2d

225.

celt

denied. i97 Conn. 805. 499 A

2d

6 1985).

Construction of such

agreement

is an

issue of fact to be resolved by the trial court as the trier of fact,

and subject to our review under the clearly erroneous standard. See

Lavigne v

Lavigne.

3

Conn. App.

423 (1985)

It is not disputed that the parties settlement agreement was incorporated into the

dissolution judgment.

Therefore,

as In

Pasquariello

v

Pasquariello. 168 Conn. 579.

584 362

A2d 835 (1975). The ultimate issue for this court

is

whether the trial court, could

have concluded

as

it did. Accordingly, [o]ur resolution

of

the [Plaintiff's] claim

is

gUided

by the

gO-neral

principles

governing

the

construction of

contracts A contraot must

be

construed to effectuate the Intent

of the parties.

which is determined from the language used interpreted

in

the

light of the situation

of

the parties and the circumstances connected with the

transaction. (Internal quotation markes omitted).

Issler v Issler, supra.

250

Conn. 235

In Passamano v Passamano,

228

Conn. 85

CT

Supreme Coun (1993)

Under CT. General Statues Sec. 4b-81 (a), the statute that enables the trial

court to transfer property

in

a marital dissolution action, the court does not retain

continuing jurisdiction over any portion of the judgment that constitutes

an

assignment

of

property,

Bunch v 180 Conn. 284

429

A

2d 874

(1980). Therefore, a property division order generally cannot be modified by the

trial court after the dissolution decree is entered, subject only to being opened

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within four months from the date the judgment is rendered under General Statues

Sc. 52-212a. The trial court does retain continuing jurisdiction to modify or

terminate alimony and child support orders, unless the orders are based on a

stipulated agreement that expressly bars future modification. General Statues

Sec. 46b-86; Bernard v

Bernard, 214 Conn. 99 1990).

Although the court has jurisdiction to assign property in connection with

46b-81, that assignment is not modifiable. See Taylor II. Taylor,

57

Conn. App.

528,

533,

752

A.

2d 3

2000).

Moreover, property distributions

.

. cannot be

modified to alleviate hardships that may result from enforcement

of

the original

dissolution decree in the face of changes in the situation of either party. (Internal

quotation marks omitted.) Simmons v Simmons, 244 Conn.158, 183-84, 708 A.

2d 949 (1998).

Because the original decree required the plaintiff to pay the defendant for her

interest in the property prior to July 23, 1998, and he has not made a single

payment noncompliance on the part of the parties made strict adherence to the

terms

of

the [decree] impossible.

Niles v Ni/es,

9

Conn App

240, 245-4, 518

A. 2d 932 (1986)

It's undisputed that the issue

of

the Parties marital property was disposed

at the time of the dissolution of the marriage (See: settlement agreement,

paragraph 2

a,

b,

c,

and d) Therefore the Trial Court Judge Mark T Gould had

no jurisdiction to essentially order a modification

of

said agreement. For that

reason Mark T Gould's order should be reversed.

CLAIM 6: THE

TRIAL

COURT JUDGE

MARK

T. GOULD ERRED/ABUSED ITS

DISCRETION WHEN IT FAILED TO FIND

SUBSTANTIAL

CHANGE OF

CIRCUMSTANCE WHEN ISSUING AN ORDER TO MODIFY THE PARTIES

SETTELEMENT AGREEMENT/DIVORCE DECREE.

STANDARD OF REVIEW:

Kathryn

M.

Sorrentino believes review is plenary and must be decided by

the application of correct/legal laws governing the issue.

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In

Borkowski v. Borkowski, 228 Conn. 729, 738,38 A. 2d 100 (1994), The

CT. Supreme Court explained that the power of the trial court to modify an

existing order does not include the power to retry issues already decided. Thus

the court's inquiry is necessarily confined to a comparison between the current

conditions and the last court order. The court continued: Applicable to

dissolution actions . .is the principle that

and

adjudication by a court

having jurisdiction

of the

subject matter

and

the parties is

final and

conclusive not

only as to matters actually determined, but as

to

matters

which

the parties

might have litigated as incident thereto and coming

within

the

legitimate

purview

of the

subject matter of

the

action . Id.,

39.

1 Modrtication of Settlement Agreement Must be Supported by SUbstantial

Change of Circumstance.

In Grino/d

v

172 Conn.

192 197) the plaintiff was estopped from

seeking a modification

of

the parties' settlement agreement, the trial court found

that the plaintiff failed to establish by the evidence a substantial change

in

circumstances. The short answer to this is that our law permits modification

of

support obligations when circumstances of the parties change.

Turner

v

Turner.

219

Conn. 7 3 1991).

CLAIM

7: THE TRIAL COURT

JUDGE

MARK T.

GOULD

ERRED/ABUSED ITS

DISCRETION WHEN

IT

FOUND THAT

KATHRYN

M. SORRENTINO HAD

APPARENTLY

AGREED

TO THE FORMULATED

PLAN

FOR PURGE

SUBMITTED TO THE COURT.


Kathryn M Sorrentino believes review is plenary and must be decided by

the application of correct/legal laws governing the issue.

1 Kathryn M. Sorrentino Did Not Agree To The Formulated Plan And

Therefore Mark T Gould Had No Authority To Order The Plan Into his

Judgment.

The facts of this case clearly show, evidenced above and

in

transcripts,

that Kathryn

M

Sorrentino refused to sign the quitclaim, which was part

of

the

formulated plan devised submitted for the purge by Saverio

A

Sorrentino,

because inter alia, it was a conflict of the parties court ordered settlement

agreement, wherein it was stipulated that marital properties would be sold and all

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debt

listed on the parties affidavits would be paid from the proceeds of the sale.

The Mark T Gould stated in his articulation that there was apparently

an

agreement. Kathryn M. Sorrentino asserts that there is nothing on record to

support that finding.

An Agreement unwritten means nothing; but rather intentlactions/admittings, of

the parties.

anni v Dina Corporation

7Conn

App. 2009).

Here, the

record (Transcript: May 7 2010 and April

7

2010) clearly shows that at no time

did Kathryn

M.

Sorrentino agree to the formulated plan, expressly, at no time did

Kathryn M. Sorrentino agree to quitclaim her property. As on record, and as

presented above, Mark

T

Gould's colloquy with Kathryn

M.

Sorrentino shows a

clear declaration by Kathryn M. Sorrentino that it was not her plan and that she

did not fully understand it. Additionally, the formulated plan when reduced to

writing as ordered by Judge Gould, was not signed by Kathryn M. Sorrentino, as

asserted by her court appointed attorney and ultimately she was incarcerated for

refusing to sign the plan, which apparently had been reduced sua sponte by

Judge Gould to a single stipulation/oral order to quitclaim her portion of the

marital property in Newtown to Saverio A. Sorrentino. Here, it could be

reasonably argued that, on top of it all, Kathryn M. Sorrentino refusal to sign

quitclaim was justified under the Transparently Invalid Order exception.

In

re:

Providence Journal Company, 809 F.2d 63 (1st cir.1986), the court

addressed an order entered by a court clearly without jurisdiction,

.

. Nonetheless, court orders are not sacrosanct. An order entered by a court

clearly without jurisdiction over the contemnors or the subject matter is not

protected by the collateral bar rule. Were this not the case, a court could wield

power over parties or matters obviously not within its

authority a

concept

inconsistent with the notion that the judiciary may exercise only those powers

entrusted by law.

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CLAIM

8:

APPEAL:

THE

TRIAL

COURT

MARK

T GOULD

VIOLATED KATHRYN M SORRENTINO S CONSTITUTIONAL

RIGHT

TO A

SPEEDY

TRIAL WHEN HE FAILED/REFUSED TO

HEAR

AND RULE UPON THE

MOTIONS

SHE

FILED.

STANDARD FOR REVIEW

Plain Error Doctrine

Abuse of Discretion

Mark T to hear and rule upon the motions filed by Kathryn

M. Sorrentino and thereby violated her right to a speedy trial as provided for her

in the sixth amendment of the United States Constiution.

The Speedy Trial Clause of the Sixth Amendment to the United States

Constituion proveds that (i)n all criminal prosecutions, the accused shall enjoy

the right to a speedy triaL The Clause protects the defendant from delay

between the presentation

of

the indictment or similar charging intrument and the

beginning of trial.

In

Barker

v

Wingo (1972), the Supreme Court developed a four-part test

that considers the length

of

the delay, the reasons for the delay, the defendant's

assertion

of

his right to a speedy trial, and the prejudice to the defendant. A

violation of the Speedy Trial Clause is cause for dismissal with prejudice of a

criminal case.

The abuse

of

discretion standard applies to a trial court's decision on a motion

for contempt.

Sablowsky

v

Sablosky, 58 Conn.

713,

721

, 784 A 2d

890 2001).

The facts

of

this case, however, present to question

of

whether a trial court has

the discretion to refuse to consider a party's motion for contempt. We have

already squarely addressed this issue, concluding that, in the absence of an

extreme, compelling situation, a trial court that has jurisdiction over an action

lacks authority to refuse to consider a litigant's motions.

Ramin

v

Ramin,

281

Conn.

324

2007)

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Connecticut Practice Book Sec. 11-19

February 2010 to September 2010 the trial court judge Mark T. Gould) failed to

hear and rule upon the properly filed and served motions of Kathryn Sorrentino

(with the exception of denying her motions for articulations and stay concerning

her appeal). Most importantly, two Motions (OS-206.80 and OS-227.50) should

have been heard because they directly related to the eight-month, on going

hearing. Motions OS-206.80 and OS-227.50 are Motions For Contempt for

Saverio A. Sorrentino's failure to pay the mortgage on the property located at 27

Plumtrees Road, Newtown, Connecticut. Wherein they: a) counter Save rio

A

Sorrentino's Motion for Contempt alleging Kathryn M. Sorrentino's failure to pay

the mortgage on their property in Fairfield, Connecticut, thus giving credence to

Kathryn

M.

Sorrentino's claim that Saverio A. Sorrentio's claim is

equitably

estopped. This illustrates the legal maxim: IIhe who seeks equity, must do

equity

. I

And

b) it would have

shown

the evidence that proved Kathryn

M.

Sorrentino was not responsible for paying the mortgage unless she received

$1,000.00 weekly from the Save rio A. Sorrentino (See transcript dated January

24,2008, pg. 4, lines 10-14) in which he swears under oath:

I

had

a-the

plaintiff had a $1,000.00 per week obligation, and the defendant was supposed,

out of that, pay the mortgage. The facts and transcripts prove that Judge Gould

had Kathryn

M.

Sorrentio's Motion (206.80 and later re-filed

as

227.50)

in

front of

him at several hearings and f iledl refused to hear and rule upon them.

According

to Ramin v. Ramin, 281 Conn. 324 (2007), Mark T. Gould lacked the

authority to do so. And according to the Connecticut Practice Book Sec. 11-19

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(A 12) Judge Mark T Gould had a time limit for deciding short calendar matters.

He took papers for Defendant's Motion for Clarification (214) twice from the

short calendar and did not rule

on it

Mark T. Gould left the Bridgeport Court

house in September 2010 without hearing or ruling on Kathryn

M

Sorrentino's

motions.

Settled law dictates that Judge Gould lacked the authority to not hear and

rule Kathryn

M

Sorrentino's motions (See FBT FA-06-4015691-S docket entry

numbers: 203.89, 206.80, 214, 227.50 and 250).

Atty. McGuiness: Briefly, it came to my attention through my client that

there were other certain motions down, not that I'm involved

in

any

of

this.

The Court:

Mm-hmm.

Atty. McGuiness: I was court-appointed specifically for the motion for

contempt.

Atty. McGuiness: But there are other outstanding motions that she has that

she wanted to be heard on. I know the Court doesn't have time today but I

don't know what the Court - the plan was, because she has a number

of

motions

of

contempt that pretty much

dovetail-

The Court: I understand that. Atty.

McGuiness-the

motion that the Court's

hearing now.

The Court: ... 1will have a report-back date

of

next Monday, and at that

time when we have the report-back date we will take care

of

the other

outstanding motions. (Transcript date: May 10, 2010, pg. 14, lines 1-25).

Mark

T

Gould court failed to hear Kathryn M. Sorrentino's motions on the

next Monday as promised and thus violated her right to a speedy trial as

provided for her

in

the sixth amendment

of

the federal Constitution (See

Transcript date: May 17, 2010).

CLAIM

9: THE

TRIAL

COURT JUDGE

MARK

T

GOULD ABUSED ITS

DISCRETION/ERRED WHEN IT RULED THA T KATHRYN M. SORRENTINO

HAD THE

ABILITY

TO PAY THE MORTGAGE

AND

A $50,000.00

ARREARAGE

BASED

ON HER GOOD HEALTH, INTELLIGENCE,

AND

BACKGROUND

IN

EDUCATION AND TEACHING.

STANDARD FOR REVIEW

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Plain Error Doctrine

Mark T. Gould failed to find a substantial change in circumstances as

required by Connecticut General Statutes 46b-86 et seq.

Kathryn M. Sorrentino asserts that the Trial Court Judge Mark T. Gould

abused its discretion when it determined she had an ability to pay/earning

capacity with which she should have paid the monthly mortgage and a

$50,000.00 arrearage. Mark

T.

Gould's Response to Order for Articulation filed

10/29/2011, Ordered sua sponte, states his reason for finding Kathryn M.

Sorrentino in contempt for failure to the mortgage and arrearage: The court

... found that the defendant, in good health, intelligent and with a background in

education and teaching, had an ability to make payments under a plan as

requested by the plaintiff

.

. The transcripts

o

December 15, 2010 show that

Saverio A. Sorrentino presented no evidence to Mark T. Gould

or

otherwise to

support the Court's finding. Kathryn M. Sorrentino's own testimony that was

accepted by Mark

T.

Gould indicated that she had never been a teacher, nor

does she

hold a teaching certificate, nor does she have a background in

education, nor had she worked in 18 years. Mark

T.

Gould accepted Kathryn

M.

Sorrentino's testimony: I have not ordered a payment schedule for you because

o

your testimony and your indication that you have not worked and do not have

a job .. (Transcript pg. 12, lines 3-5). The Trial Court (Gould, J.) abused its

discretion when it ruled on the Kathryn

M.

Sorrentino's ability to pay/earning

capacity when the Court has on record multiple financial affidavits

o

Kathryn

M.

Sorrentino filed with both the Superior Court and the Magistrate Court proving

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her to be indigent due to being a displaced homemaker o 18 years and solely

reliant on child support and alimony from Saverio A Sorrentino.

E OTHER L WSUITS

The Plaintiff has no other lawsuits in statae or federal court dealing with

the same facts involved in this action.

F

REQUEST FOR RELIEF

Wherefore Plaintiff prays this Court issue equitable relief as follows:

1 Issue injunctive relief commanding Defendant to reverse his Order.

2 Issue declaratory relief as this Court deems appropriate and just.

3

Issue other relief as this Court deems appropriate and just.

4 Award Plaintiff her costs o litigation.

G

JURY DEM ND

The Plaintiff requests a jury trial.

Respectfully submitted

Suf\NVV\J

Kathryn M.Sorrentino Pro se

212 Curtis Terrace

Fairfield CT 06825

Tel: 203400-3712

Email: [email protected]

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DECL R TION UNDER PEN LTY OF PERJURY

The undersigned declares under penalty

o

perjury that she is the plaintiff

in the above action that she has read the above complaint and that the

inofmration contained in the complaint is true and correct. 28 U.S.C Sec. 1746;

18 U.S.C. Sec. 1621.

Executed at 915 Lafayette Boulevard Bridgeport Connecticut on March 13

2013.

Kathryn M Sorrentino

CERTIFIC TE

OF

SERVICE

THIS IS TO CERTIFY that a copy o the foregoing was mailed this date

postage prepaid to:

MARK

T

GOULD Judge

235 Church Street

New Haven CT

203 503-6800

80f\ MMJ

Kathryn M Sorrentino Pro se

212 Curtis Terrace

Fairfield CT 06825

Tel: 203400-3712

E-mail: [email protected]

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sorrentino federal complaint against judge mark gould

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