Opinion
No. MMX-FA-06-4006014-S
September 22, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT, POST-JUDGMENT
A hearing on the defendant's Motion for Contempt filed June 11, 2009 was held on September 8, 2009. An agreement of the parties, dated December 10, 2007, and made an order of the court, addressed issues raised in said motion. The defendant and the plaintiff testified.
In reaching its conclusions, the court has fairly and impartially considered all the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, measured the probative force of conflicting evidence, applied relevant statutory criteria and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.
The defendant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and non-compliance with that order. Issler v. Issler, 50 Conn.App. 58, 66-69 (1998), rev'd on other grounds, 250 Conn. 226 (1999). "The contempt remedy is particularly harsh and may be founded solely upon some clear and express direction of the court." Eldridge v. Eldridge, 244 Conn. 523, 529 (1998). "Non compliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7 (2001). The court may not find a person in contempt "without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, 38 Conn.App. 263, 275-76 (1995). In addition, "A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed." Gina M.G. v. William C., 77 Conn.App. 582, 592 (2003).
However, "in a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." Nelson v. Nelson, 13 Conn.App. 355, 367 (1988). In addition, the court has general remedial discretion. Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553 (1988).
Paragraph 5 of the December 10, 2007 court order states, inter alia that:
Plaintiff agrees to set up both mortgages on 87 Leesville Rd, Moodus, Connecticut, to be automatically withdrawn from her account each month. Parties agree this is to be done by February 1, 2008.
Although the court credits the testimony of the defendant that plaintiff has yet to comply with this order, the court finds that the defendant has failed to establish such noncompliance was wilful. Nonetheless, as Nelson and Fitzgerald, supra instruct, the court is not without the means to address said non-compliance. The court is mindful that both plaintiff and defendant have incurred credit issues ancillary to their dissolution. Each in their own way contributed to said issues. The credit problems of each one interrelated. After consideration of the relevant statutory criteria, the evidence, case law, and financial affidavits of the parties, the court orders:
1. The plaintiff shall furnish proof in the form of written applications and documents to counsel for the defendant of all efforts to have funds automatically withdrawn from her checking account each month to satisfy the mortgages described in the December 10, 2007 court order. Plaintiff is ordered to immediately institute said automatic withdrawal.
2. Plaintiff is further ordered to provide to counsel for the defendant by Friday of each week a written list of a minimum of five banking institutions where efforts as described above have been made by the plaintiff to institute automatic withdrawal as described above.
Therefore, the defendant's Motion for Contempt is denied.
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT, POST JUDGMENT
A hearing on the plaintiff's Motion for Contempt filed June 29, 2009 was held on September 8, 2009. Three agreements of the parties, dated September 24, 2007, December 10, 2007, and May 12, 2009 and made orders of the court, addressed the issues raised in said motion. The defendant and the plaintiff testified.
In reaching its conclusions, the court has fairly and impartially considered all the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, measured the probative force of conflicting evidence, applied relevant statutory criteria and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.
The plaintiff has the burden of establishing, by a preponderance of the evidence, the existence of a court order and non-compliance with that order. Issler v. Issler, 50 Conn.App. 58, 66-69 (1998), rev'd on other grounds, 250 Conn. 226 (1999). "The contempt remedy is particularly harsh and may be founded solely upon some clear and express direction of the court." Eldridge v. Eldridge, 244 Conn. 523, 529 (1998). "Non compliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7 (2001). The court may not find a person in contempt "without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, 38 Conn.App. 263, 275-76 (1995). In addition, "A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed." Gina M.G. v. William C., 77 Conn.App. 582, 592 (2003).
Ambiguity is a factor the court can consider when making a determination of wilfulness. Sablosky v. Sablosky, 258 Conn. 713, 720-21 (2001). "There may be circumstances in which ambiguity in an order may preclude a finding of contempt" . . . (internal quotations omitted.) Berglass v. Berglass, 71 Conn.App. 771, 777 (2002).
However, "in a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." Nelson v. Nelson, 13 Conn.App. 355, 367 (1988). In addition, the court has general remedial discretion. Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553 (1988).
The September 24, 2007 order reads in relevant part as follows:
1) The parties agree that Mr. Kenneth Larrick will contact Liberty Bank by September 28, 2007. Mr. Larrick will speak with Kathy Chapold bank representative regarding a personal loan in both Lee and Kenneth Larrick's name . . .
2) Mr. Larrick will set up automatic payments for Harley Davidson and Ford Credit by October 15, 2007 . . .
The December 10, 2007 order reads in relevant part as follows:
5) Defendant will pay Harley Davidson Credit and Ford Credit by electronic fund transfer from his bank on the dates set up automatically by the bank.
6) Plaintiff agrees that no further action is requested with regard to the Liberty Bank loan.
The May 12, 2008 order reads in relevant part as follows:
3) Kenneth Larrick agrees to be responsible for the remaining loan balance Liberty Mutual loan #640390031 and to hold Lee Larrick harmless from the debt.
Although the court credits the testimony of the plaintiff that the defendant was tardy fulfilling his obligation with respect to the court's order as to the Harley Davidson, the court finds that the plaintiff has failed to establish such non-compliance was wilful. The court credits defendant's testimony that automatic withdrawals from his bank to ensure payment on the Harley Davidson have been in place since January 2008.
The plaintiff's claims with respect to the Liberty Bank orders are more difficult to address in view of the nature of the orders and the testimony at the hearing. The defendant testified that said loan repayment is now subject to automatic withdrawal by his bank. It is apparent that both the plaintiff and defendant have incurred credit issues ancillary to their dissolution. Each in their own way has contributed to the credit issues that now exist. The credit problems of each are interrelated. However, the court finds that with respect to the "Liberty Bank" orders, the plaintiff has failed to establish that said orders are sufficiently clear and unambiguous to merit a contempt finding, not that the defendant's conduct was wilful. Nonetheless, as Nelson and Fitzgerald, supra instruct, the court is not without the means to address the matters raised by the plaintiff.
After consideration of the relevant statutory criteria, the evidence, case law, and financial affidavits of the parties, the court orders:
1. The defendant shall furnish proof in the form of written documents from the bank involved in the Harley-Davidson loan repayment, to counsel for the plaintiff demonstrating that funds are being automatically withdrawn from the defendant's account toward payment. Proof shall be furnished within 30 days of this order.
2. The defendant shall furnish proof in the form of written documents, to counsel for the plaintiff, from the bank(s) involved in the Liberty Bank loan repayment as to the automatic withdrawal plan now in place to address said loan. Proof shall be furnished within 30 days of the order.
Therefore, the plaintiff's Motion for Contempt is denied.