Opinion
NNHFA094038302S
03-21-2017
Aimee Rochler v. Jeffrey Rochler
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT No. 403
Kenneth L. Shluger, J.
The parties have been actively engaged in classic, toxic pre and postjudgment litigation from July 2009 when the case was commenced until the present time when this motion, the 303rd was presented. It should be noted that the file is now housed in a large cardboard banker's box with four individual accordion style manila folders.
The parties appeared before the undersigned on March 17, 2017. The Plaintiff was represented by counsel and the Defendant was self-represented. The Defendant claims that he is due a reimbursement of medical expenses, the overpayment of child support, the payment of tax obligations and that the plaintiff has failed to foster visitation and communication between the father and child.
The Court has fully considered the criteria of the Connecticut General Statutes as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments in reaching the decisions reflected in the orders that issue in this decision.
FACTUAL FINDINGS
The Court finds that the following facts were proven by a preponderance of the evidence:
1. The parties were divorced after a trial pursuant to a Memorandum of Decision dated January 20, 2011.
2. The Plaintiff Wife was awarded alimony for a period of 10 years which was terminated upon her remarriage on January 2, 2016.
3. There are three children, issue of the marriage, one of whom has reached the age of majority. The female minor child resides primarily with the mother and the male minor child resides primarily with the father.
4. The Defendant Father, representing himself, offered no evidence regarding the payment of tax obligations and so the Court deems that claim abandoned.
5. Both parties introduced massive amounts of documents and evidence to support their claims. The Plaintiff claims that she is due an arrearage in the amount of $245. The Defendant claims that he is due overpayments in the amount of $1, 981.
6. The Plaintiff also claims that she should be reimbursed attorneys fees in defending this contempt motion in the amount of $2, 610.
7. In addition, the Defendant claims that the Plaintiff is interfering with his ability to have any communication or interaction with their 13-year-old daughter who lives with the mother. The parties acknowledge that the last time the father and the child had any meaningful interaction was August 2016, at which time the father took the daughter for a vacation to the Outer Banks, N.C. The mother claims that the child was treated poorly by the father, left alone, and given no spending money or a bicycle to ride. The father claims that the visit went well and that the mother is simply turning the child against him. The father claims that the child refuses to accept any of his telephone calls or respond to any of his texts.
8. The parenting plan dated March 9, 2010 requires that " the parties shall use every effort to encourage and foster feelings of affection between the children and the other parent." The father claims that the mother interferes with his visits.
9. Clearly, there is no love lost between either parent and neither parent is doing anything to foster or encourage a healthy parent-child relationship between the children and the other parent. Neither is that a ground for a finding of contempt; they simply cannot get along or tolerate the other.
10. The father's present visitation schedule with the daughter is either Saturday or Sunday each week at the child's election. For whatever reason, no visits have taken place since August. The Court finds that a regular and non-flexible visitation schedule would be more suitable for this fractured family so everyone knows exactly what to expect. For that reason, the Court will order that the father's visitation will take place each Sunday from 2 P.M. until 6 P.M.
11. The accounting between the parties regarding the payments made and the payments due is an accounting nightmare. There are clearly periods of time when the father overpaid (e.g., after January 2016, his alimony terminated but the wage withholding order did not adjust for some time). Nonetheless, both parties have spreadsheets, documentation, receipts and other proof to support their respective positions. The Court cannot find, by clear and convincing evidence that the Defendant is owed money. Neither can the Court find that the Plaintiff owes the Defendant for any overpayment; the evidence is simply conflicting.
LEGAL DISCUSSION
Civil contempt in family matters is governed by Practice Book § 25-27. " Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). The movant has the burden of proof to show . . . the existence of a court order and noncompliance with that order." Issler v. Issler, 50 Conn.App. 58, 66-69, 716 A.2d 938 (1998). " Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 787 A.2d 50 (2001). Moreover, " a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995).
In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt. The court must find that there was a violation of said order and that the violation was willful. Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding. In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).
Findings of indirect civil contempt must be supported by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 302-03, 105 A.3d 887 (2015).
" To constitute contempt, a party's conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt." (Internal quotation marks omitted.) Gina M.G. v. William C., 77 Conn.App. 582, 590, 823 A.2d 1274 (2003). A finding that a person is or is not in contempt of a court order depends on the facts and circumstances surrounding the conduct. The fact that an order has not been complied with fully does not dictate that a finding of contempt must enter. See Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985). " [It] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn.App. 75, 82, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).Adamo v. Adamo, 123 Conn.App. 38, 49, 1 A.3d 221 (2010).
In applying the law to the facts which the court finds, as proven in the facts which the court finds not proven by the high standard of clear and convincing evidence, the court is unable to find that the plaintiff is in contempt. Nonetheless, the court cannot find that the defendant filed this motion frivolously or without basis; it is just that the evidence on both sides is strong and conflicting. For that reason, no attorneys fees will be awarded.
ORDERS
1. The Motion for Contempt is denied.
2. The Court finds that there is no arrearage owed to the Plaintiff nor is there an overpayment owed to the defendant.
3. The father's access with his daughter shall be every Sunday from 2 p.m. to 6 p.m. The father shall provide the transportation. The father shall arrive at the home of the mother and park at the end of the driveway. He shall send a text to the mother indicating that he is present and the mother shall promptly respond acknowledging receipt. If, in the mother's opinion, there is a legitimate reason why the visit cannot take place, she shall text the father within 24 hours and that visit will be rescheduled at a time within the next 14 days.
4. All other orders not inconsistent with these orders shall remain in full force and effect.