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An appellate court may dismiss a civil appeal when the appellant is in contempt of a trial court order, the New Hampshire Supreme Court held on March 8. DeMauro v. DeMauro, No. 2000-147. The court let stand an order awarding an ex-wife $35 million in marital assets and $20,000 alimony per month for five years. Annette B. DeMauro had filed a libel for divorce in state court, claiming her husband, Joseph M. DeMauro, systematically concealed assets accumulated during their two-decade marriage. She also filed a complaint in federal court, alleging that Joseph had racketeered with the intent to defraud her. That case was stayed pending a decision in the divorce case. Joseph refused to answer questions or provide documents necessary to determine his financial status, citing his right against self-incrimination, but the trial court ruled that the privilege was inapplicable. On appeal, the state supreme court held that Joseph could assert his Fifth Amendment right, but it also said that the assertion of privilege could not be used to deprive Annette of her rights. The high court said the trial court could “order the defendant to execute consent waivers consistent with those permitted in federal cases for discovery of assets” and “fashion an equitable distribution based on all information then available and all reasonable inferences to be drawn therefrom.” When Joseph still refused to cooperate on remand, the trial court found him in contempt and valuated the marital estate using extrapolations prepared by Annette’s expert, based on incomplete bank records. Appealing the divorce decree, Joseph argued that the trial court’s valuation was erroneous because it relied on remote and speculative evidence. But the state’s high court said it would not permit him “to seek the assistance of the judicial process while he refuses to comply with its orders.” Writing for the court, Justice Linda S. Dalianis wrote, “in limited circumstances, an appeal in a civil case may be dismissed if the appellant has failed to comply with an order of the trial court that relates directly to the issues raised … on appeal, and the issue of contempt is not being appealed.” Distinguishing a 1992 1st U.S. Circuit Court of Appeals case, United Elec., Radio and Machine Workers of America v. 163 Pleasant Street Corp., the court said that case involved an appellant who was challenging the contempt ruling as well as the underlying decree. One of Annette’s lawyers, Stephen L. Tober of the Tober Law Offices in Portsmouth, N.H., said, “I’m pleased we’re able to bring closure after all these years.” Asked if he thought Joseph could bring another appeal if he later cured the contempt, Tober responded, “This ruling doesn’t mean that. There’s no invitation to keep coming back.” But one of Joseph’s lawyers, Lawrence M. Edelman of Sanders & McDermott in Hampton, N.H., said he is still working on the case. He declined to elaborate, but he said filing a motion for rehearing under court Rule 22 was a possibility. That rule gives Joseph 10 days to file a motion asking the court to review points of law or fact it may have previously overlooked or misapprehended.

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