Opinion
No. FA 03-0477510 S
January 12, 2006
MEMORANDUM OF DECISION MOTION FOR CONTEMPT AND ORDER ( MOTION 171 DATED AUGUST 3, 2005) MOTION FOR MODIFICATION ( MOTION 176 DATED SEPTEMBER 8, 2005)
The parties presented evidence relating to the plaintiff's motion for contempt dated August 3, 2005 and the defendant's motion for modification dated September 8, 2005.
The initial hearing for these matters concluded in a mistrial. The parties returned to court in December 2005 in order to present evidence.
The plaintiff claims that her husband violated a series of court orders. In particular she alleges:
(a) He failed to pay court-ordered alimony and child support as of the date of the dissolution judgment (paragraph 1);
(b) He failed to pay the plaintiff monies due beyond the terms of the court ordered income withholding (paragraph 2);
(c) He failed to make timely payments in such a manner as exposed the plaintiff to late fees or other consequences (paragraph 3);
(d) He failed to cooperate in the plaintiff's efforts to secure COBRA for her medical expenses (paragraphs 4-5);
(e) He failed to confirm his attendance at postjudgment therapy (paragraph 6);
(f) He denigrated the plaintiff in the presence of their children (paragraph 7);
(g) He failed to divide the family's personal property in accordance with the existing court order; and
(h) A pro se litigant, he has been unwilling to discuss the above issues.
In his motion for modification the defendant alleges "rent increase; financial difficulties, substantial change in circumstances."
I. Facts of the Case
On April 22, 2005, after a twelve-day trial, the trial court (Frazzini, J.) dissolved this couple's marriage. On that date, the trial court entered, among others, the following orders:
B. Parenting orders . . .
(j) Neither party shall disparage the other party in the presence of the children. The parents shall exert every reasonable effort to promote and foster feelings of love and affection between the children and the other parent. Each parent shall exert his and her best efforts to refrain from doing anything to estrange the children from the other parent or to disparage the opinion of the children as to their mother or father, or to act in such a way as to hamper the free and natural development of love and respect between the other parent and the children . . .
C Financial Orders
1. Child Support
a. Mr. La Fontaine shall pay Ms. La Fontaine child support of $220 per week, plus 42% of unreimbursed medical expenses exceeding one hundred dollars per year per child and the same percentage of qualifying childcare expenses.
b. Mr. La Fontaine shall continue to provide health insurance for the minor children so long as available to him at a reasonable cost through his employer. If comparable medical insurance is available for the minor children to the mother through her employer at a lesser cost, she shall provide it . . .
2. Alimony
a. Mr. La Fontaine shall pay Ms. La Fontaine periodic alimony of $100 per week.
b. As additional alimony, Mr. La Fontaine shall contribute toward the cost of health insurance for Ms. La Fontaine in an amount equal to what his employer charges under COBRA for a single person for the insurance covering Ms. La Fontaine at the time of dissolution. He shall also cooperate with her obtaining COBRA coverage through his employer . . .
3. Property Distribution . . .
a. Ms. La Fontaine is awarded the exclusive right of occupancy and tenancy to the marital premises. Mr. La Fontaine shall vacate the same within thirty days of this judgment. Until he vacates the premises, the pendent elite nesting arrangement shall continue . . .
f. Property in the marital home shall be divided equally by the parties . . . If the parties cannot agree on the division of the other personal property, they shall seek the mediation services of family relations. If they still cannot agree, each shall submit a list to the court of the items of personal property that each party wants with a brief summary of why the party believes it should be awarded that article of property. The court retains jurisdiction over distribution of personal property.
D. Counseling and therapy
a. Mr. La Fontaine will enter into therapy with the goals of identifying why he so often castigates his wife and ending that behavior and stay in such therapy until further order of the court.
In response to the Defendant's request for articulation, by memorandum dated June 7, 2005 the trial court stated:
a. Mr. La Fontaine shall notify Ms. La Fontaine in writing of the cost of the COBRA benefits he is paying for on her behalf and of the charges in such costs.
b. If Ms. La Fontaine obtains her own health and or dental insurance, Mr. La Fontaine shall no longer be required to pay for COBRA coverage for her but shall instead contribute to any payments she must make for such insurance in an amount not to exceed what his employer would charge for COBRA benefits for her.
c. If Ms. La Fontaine qualifies for health insurance from her employment that would cost less than the COBRA coverage, she shall obtain such insurance and Mr. La Fontaine shall no longer be required to pay for COBRA coverage for her, but if such health insurance does not cover medical services or procedures that had been covered by the COBRA insurance or has higher co-pays, Mr. La Fontaine shall also pay for such uninsured services or procedures or co-pays, but his total monthly contribution shall not exceed what he would have paid under COBRA.
The trial court that entered the dissolution began a hearing on the above contempt and modification motions in September 2005. While the hearing was pending, on September 22, 2005 the trial court entered the following order:
1. The defendant, SCOTT LA FONTAINE, shall provide the plaintiff, DONNA LA FONTAINE, with half of the family photos or copies thereof.
2. If the defendant chooses to make copies of the photos, he must provide the plaintiff's counsel with a bill of costs and the parties shall split the cost equally.
Unfortunately, after several days of hearings, the court declared a mistrial. See court order dated October 28, 2005 (Frazzini, J.).
A second hearing was scheduled by this court for December 2005. On the first day of testimony the defendant left the courthouse. His motion for modification is dismissed.
Although the defendant had filed a motion for modification, he refused to complete an updated financial affidavit. The court recessed in order to allow the defendant to complete the same. The defendant initially refused to return to court. He soon after relented.
The plaintiff's counsel called the defendant as her first witness. In order to accommodate the defendant's need to review proposed exhibits, the court again recessed. Before the court re-convened the defendant left the building. He did not return to court that day.
The only individual under subpoena was a payroll clerk from the defendant's employer.
Turning to the plaintiff's motion for contempt, the plaintiff provided the following evidence:
Pursuant to court order, the plaintiff secured a wage execution in order to receive postjudgment alimony and child support. At the present time the alimony and child support are immediately withdrawn from the defendant's earnings. At issue are the defendant's alleged failures to pay alimony and child support from April-May 2005 as well as his failure to pay during two weeks in July.
There is a court order that the defendant attend therapy sessions until further order of the court. Although the plaintiff alleges that the defendant failed to comply with court-ordered therapy, and believes that he has not, she offered no proof to support this conjecture. Speculation is not proof.
Turning to the plaintiff's complaint concerning co-parenting issues, the plaintiff alleges that the defendant continues to disparage her in the presence of their children. This court agrees that the defendant has acted in a hostile and belligerent matter. Indeed the court issued a temporary restraining order August 25, 2005 wherein the court ordered the defendant to refrain from, inter alia, threatening, assaulting or harassing the plaintiff. The court also ordered the defendant to vacate his residence, part of a duplex owned by the defendant's family. The plaintiff resides in the second portion of that same duplex.
That restraining order contains the number 030477510. It should not be included in the dissolution file but, rather, should be a separate matter.
With respect to this allegation, the plaintiff is understandably frustrated. The court is convinced that the defendant discusses the plaintiff in the presence of their minor children. The court is further convinced that the discussions do not place the plaintiff in a flattering light. Apparently the plaintiff calls local police on a regular basis. There was no evidence that there have been any arrests. The plaintiff wants the police to take her calls more seriously.
The plaintiff also testified that the defendant does not consult with her prior to initiating activities with the children. The plaintiff's motion for contempt does not have any allegations that would address this conduct.
Finally the plaintiff testified credibly that the defendant has failed to provide her with the requisite portion of their children's photographs and personal memorabilia.
II. Motion for Contempt
Through her motion for contempt the plaintiff has asked the court to find that the plaintiff willfully violated a series of court orders.
Connecticut procedure authorizes motions for contempt, one of the few vehicles available to enforce compliance with court orders. Acknowledging the broad equitable powers of this court, ". . . a finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases." (Citations omitted; internal quotation marks omitted.) Sgarellino v. Hightower, 13 Conn.App. 591, 595-96, 538 A.2d 1065 (1988). The burden of establishing a prima facie showing of contempt, in this case the willful disobedience of a court order, falls upon the plaintiff.
To enforce the agreement the plaintiff seeks invocation of the court's contempt power, an especially harsh remedy. "To constitute contempt, a party's conduct must be willful . . . Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001) (internal quotations marks omitted). A good faith dispute or legitimate misunderstanding can preclude a finding of willfulness. Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001).
This court should decline to hold the defendant in contempt if the facts are not "established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases." (Internal quotation marks omitted.) Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994). Also, this court may, in its sound discretion, "deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." Gilbert v. Gilbert, 73 Conn.App. 473, 486, 808 A.2d 688 (2002) (internal quotation marks omitted). In the present case the burden is on the defendant to establish that he could not comply with the existing court order. Court orders must be obeyed until modified or successfully challenged. Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994); Lawrence v. Lawrence, 92 Conn.App. 212, 215 (2005).
This court must turn first to the issue of court orders. In order that the defendant be held in contempt, he must violate a clear and unambiguous court order. The non-compliance must be willful.
The plaintiff first alleges that the defendant failed to pay the requisite court-ordered alimony and child support from April-May 2005. It is true that the original trial court ordered alimony and child support, as well as other monetary obligations. See Section C.2 of the trial court memorandum. However, under section four (4)(a) of that same decision, the court ordered: "Ms. La Fontaine is awarded the exclusive right of occupancy and tenancy to the marital premises. Mr. La Fontaine shall vacate the same within thirty days of this judgment. Until he vacates the premises, the pendente lite nesting arrangement shall continue . . ."
There is no dispute that the defendant did not pay the $330 per week from April 22-May 22, 2005. The dispute involves his obligation. There is further no dispute that the defendant did not pay alimony or child support for the weeks ending July 18 and July 25, 2005. Again, the dispute is the defendant's obligation.
Under the above-referenced "nesting" arrangement, the defendant was ordered to pay all household and childcare expenses, an obligation that is, on its face, inconsistent with the provisions upon which the plaintiff now relies. In short, there is a serious question concerning the defendant's obligations during that initial thirty-day period, one that cannot be resolved absent clarification from the original trial court. Neither party sought such clarification. Thus the request for a finding of contempt fails.
The plaintiff also alleges that the defendant has failed to pay alimony and child support due the weeks of July 18, 2005 and July 25, 2005. Apparently the plaintiff was unsuccessful in her initial efforts to secure these funds through wage withholding. There is no question that the amounts are due. The plaintiff established a court order and non-compliance by the defendant.
The plaintiff alleges in her motion for contempt that the defendant's "willful retention of child support and alimony" exposed her to potential late rental fees. She provided no evidence to support this allegation.
The court next turns to the question of insurance coverage. The plaintiff alleges that the defendant "was to cooperate with the plaintiff in obtaining COBRA coverage through his employer." She further alleges that as a result of the lack of communication, she was forced to secure individual insurance through her employer. She finally alleges "plaintiff believes she is presently uninsured."
The original dissolution decree provided:
Mr. La Fontaine shall continue to provide health insurance for the minor children so long as available to him at a reasonable cost through his employer. If comparable medical insurance is available for the minor children to the mother through her employer at a lesser cost, she shall provide it . . .
In response to the Defendant's request for articulation, by memorandum dated June 7, 2005 the trial court established the defendant's obligation. The evidence presented by the plaintiff established that the defendant had maintained a COBRA policy through his employer. Thus there was no foundation for the plaintiff's belief that she was uninsured. The contrary is true.
Furthermore, the evidence presented indicated that the plaintiff could secure insurance through her employer. There was no evidence that she had done so. When the plaintiff establishes that she has medical insurance, she can request that the defendant cancel the costly COBRA and thereafter reimburse her for the cost of medical insurance in accordance with the judgment of dissolution. The motion for contempt is denied as premature.
The plaintiff's next request for a contempt finding is based on the allegation: "Although verification of the therapy was requested, to date the defendant has failed to confirm that he is attending therapy." The relevant court order provides:
Mr. La Fontaine will enter into therapy with the goals of identifying why he so often castigates his wife and ending that behavior and stay in such therapy until further order of the court.
Although the plaintiff suspects that the defendant is not attending therapy, there is no evidence to support this belief. The court recognizes that the plaintiff wishes to confirm the defendant's therapy. Unfortunately there is no court order requiring verification. Absent a court order, a contempt allegation must fail.
In her next allegation of contempt the plaintiff states that the defendant "calls the plaintiff bad names and screams and yells at the plaintiff in front of the minor children." This would be in direct contravention of the court order requiring that the parties not disparage each other in the presence of the children.
The evidence presented does establish that the children have been exposed to a toxic environment. The defendant is patently hostile. The hostility, alone, is not violative of the dissolution order.
The level of anger that permeates this matter is troubling. Unfortunately this is a problem which cannot be solved through a contempt petition. Indeed, the plaintiff failed in the petition to indicate what remedies she seeks, remedies that would both allow the defendant to purge himself of the contempt and also would provide compliance with the spirit of the court order.
During the instant hearing the plaintiff suggested that the court was responsible for the defendant's future conduct. She also stated that she needed immediate protection. She complained that police officials ignore her calls for assistance and demanded that the court intervene immediately. She demanded action before the defendant seriously injured her.
The court is convinced that the plaintiff wants her former spouse incarcerated. This court already noted that there is currently in effect a temporary restraining order. If the defendant violates that order, there is a recognized process to address the violation. This court cannot act as a substitute for the criminal process.
Contrary to the plaintiff's belief, under the law the power of a court to issue a contempt finding is delineated and controlled. So are the remedies available thereafter. Those remedies are designed to secure cooperation with court orders. They are extraordinary remedies, limited to secure compliance not punishment.
The court is a neutral arbiter of fact. It is an adjudicator not law enforcement agency. Recognizing the plaintiff's frustration, the court cannot monitor these litigants twenty-four hours a day, seven days a week. The court issued a restraining order. If there is a violation of the restraining order, the plaintiff's remedy is to secure a criminal warrant.
Next the plaintiff alleges that the defendant has failed to divide personal property in accordance with the judgment of dissolution. The evidence presented establishes this allegation. The evidence also establishes the allegation that the defendant has refused to mediate this issue with family relations.
Although there was an order for division of personal property in September 2005, it is not clear whether that order survived the mistrial of this matter. This court repeats that order in its entirety. Compliance is mandated on or before March 1, 2005. Accordingly the motion for contempt is denied.
Finally the plaintiff alleges that postjudgment negotiation has been unsuccessful because of the defendant's violent and obstreperous conduct. The plaintiff provided a series of correspondence indicating apparent negotiations between the parties' counsel. The purpose of the offer was to establish that the defendant was in willful violation of court orders. The documents establish, at best, that the defendant's counsel was aware of the plaintiff's concerns.
The defendant's only objection to the documents was that the proceedings were corrupt and should not continue.
The plaintiff is right. The defendant is uncooperative. Nevertheless, this court cannot compel mediation and resolution. The defendant can insist on trial. Therefore, there cannot be a contempt finding.
The question before the court is quite narrow. This court is required to examine the court orders and determine whether the defendant has complied. From the foregoing, it is evident that the plaintiff failed to meet her burden in a number of her allegations. Where the court orders were not clear and unambiguous, contempt cannot lie. Acknowledging the broad equitable powers of this court, ". . . a finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases." (Citations omitted; internal quotation marks omitted.) Sqarellino v. Hightower, 13 Conn.App. 591, 595-96, 538 A.2d 1065 (1988).
Unfortunately these individuals cannot resolve any matter without extensive litigation. Where most citizens would either comply with the spirit of an order or, at a minimum seek clarification, these immediately turn to court. This method of resolution is both costly and ineffective. It is, however, their right to pursue this avenue of resolution.
Although the plaintiff's situation is unfortunate, this court cannot grant the bulk of the relief requested. The defendant failed to pay alimony and child support for the weeks of July 18 and July 25, 2005. He is in contempt of existing court orders. He is therefore ordered to pay the plaintiff an additional $15 per week toward that arrearage.
Indeed it is unclear what relief is requested. The motion contains the following:
Wherefore, the plaintiff requests that the defendant be found in willful contempt and ordered to pay the plaintiff's attorneys fees and costs associated with the prosecution of this motion.
In light of this evidentiary deficiency, the remaining portions of the plaintiff's motion must be denied.
III. Attorneys Fees and Costs
Connecticut General Statutes § 46b-87 provides that once contempt for failure to comply with orders has been found in a family matter, the court may sanction a noncomplying party through the award of attorney fees. See Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). In considering whether to award attorneys fees in this matter, this court has reviewed the evidence relating to all the motions that were the subject of this hearing, including the parties' financial affidavits and other evidence relating to actual income and earning capacity. In light of the foregoing, the requests for attorneys fees and costs are denied.