Opinion
No. FA 05-4102006
November 14, 2006
MEMORANDUM OF DECISION
I. STATEMENT OF THE CASE
Plaintiff and defendant filed motions for contempt for alleged violations of court orders entered in the State of Rhode Island. Counsel represented both parties. The parties presented evidence during a two-day trial.
II. ISSUES
Did defendant wilfully violate valid court orders permitting plaintiff's access to the minor child on the following dates: Memorial Day, 2005 and 2006; July 4, 2005; August 24, 26, 27 and 28, 2005; November 23, 2005; December 16 through 18, 2005; December 22 and 23, 2005; December 28, 2005 though January 1, 2006; February 10 though 12, 2006; February 22 through February 26, 2006; May 24, 2006; May 29, 2006; July 5 through July 9, 2006; July 13 through July 21, 2006 and; August 17 through August 30, 2006? Did plaintiff wilfully violate valid court orders by not providing health insurance coverage for the minor child? Did plaintiff violate valid court orders by denying defendant access to the minor child for the defendant's July 4, 2005 family function?
III. STATEMENT OF FACTS
The court finds the following facts proven by a preponderance of the evidence. Rhode Island Family Court entered orders in the above-captioned matter on September 2, 1998; October 10, 2000; July 13, 2001; and October 25, 2004. The 2004 order mandated that all future actions be filed in the State of Connecticut. Each of the three orders entered after 1998 required that all previous orders not inconsistent with the most recent order remain in full force and effect. [Defendant's Exhibit 1, Plaintiff's Exhibits 2 and 3.]
Plaintiff's motions for contempt allege wilful violations of access orders for holidays, midweek visits, weekends, and school vacations. Defendant's motion alleged a wilful violation of an order requiring health insurance coverage for the minor child. Defendant's motion also alleged a denial of access by plaintiff on the July 4, 2005 family function day. The following are the relevant orders for which violations are alleged:
September 2, 1998 order. (Order number four.)
4. That both parties shall place the minor child on any medical insurance plan which they may have at their places of employment.
October 10, 2000 order. (Orders 2, 12, 13 and 14, as follows:)
2. The plaintiff shall have visitation each and every Thursday from 10:00 a.m. to 7:00 p.m. and at any other times as the parties shall agree.
12. The defendant shall have the child for her family function day on the 4th of July weekend.
13. The plaintiff shall have a day with the child during the 4th of July weekend to celebrate with his family.
14. Each party is awarded one full week of uninterrupted visitation during summer vacation.
July 13, 2001 order. (Orders 3a, 3h and 3j, as follows:)
3. Custody of the minor child is hereby awarded jointly to the parties, physical possession to be with defendant/mother; plaintiff/father to have the following visitation:
a. Every other weekend from Friday at 6:00 p.m. until Sunday at 5:00 p.m.
h. The parties shall alternate the holidays: the holidays being Fourth of July, Labor Day, Veteran's [sic] Day, New Year's Day and Memorial Day. Commencing with the Fourth of July 2001, the child shall spend same with plaintiff father. In the event the holiday shall fall on the day following plaintiff/father's visitation, he shall keep the child overnight until the next day involving the holiday.
j. Each of the parties shall be allowed to have (2) weeks of vacation time with the minor child, be it continuous or non-continuous at the option of the parties, weeks [sic] during the course of the year. In 2001, the parties shall notify each other which two weeks they will be exercising their right of visitation on or before June 30th. In subsequent years, commencing in 2002, the parties shall notify one another which two weeks they want the child for vacation on or before April 30th of each and every year.
October 25, 2004 order. (Orders 2, 3 and 5.)
2. That physical placement of the minor child shall be with the defendant/mother during the school year and the plaintiff/father during the summer months and school vacations.
3. That the plaintiff/father shall continue to have the visitation that he presently has and the defendant/mother shall not unduly deny the plaintiff free access to the minor child and other visitation with due notice.
5. That each party shall have a fourteen (14) day uninterrupted vacation with the minor child during the summer months and vacations and the defendant/mother shall notify plaintiff/father of her choice of weeks no later than May 31st of each year.
The alleged violations are many. For clarity's sake, this opinion will address the alleged violations of holiday access, vacation access, midweek access and weekend access.
Memorial Day 2005 and 2006 (holiday)
Plaintiff worked on both days. Defendant did not provide access to minor child and offered no evidence of her inability to grant access.
July 4, 2005 (holiday)
Defendant told plaintiff that plaintiff could pick up the child in the morning if he wanted, but that she could not bring the child to the plaintiff because she had "previous plans." Defendant offered no evidence that she was unable to transport the minor child. Defendant worked on the 4th and declined to pick up the minor child.
August 24, 26 and 28, 2005 (summer vacation)
Defendant did not return minor child to plaintiff on August 24, 26 or 28, 2005. She testified that she relied on a previous understanding that the child should resume living with her a week before school began to prepare her for school. The defendant described the arrangement as an agreement reached prior to September 2004 which is before the October 2004 entered.
December 22, 23, 28, 2005 through January 1, 2006/school vacation
Defendant acknowledged the 2004 order required the child spend the school vacations with plaintiff. Defendant claims the parties' attorneys agreed in September 2004 and in October of 2004 or 2005 that she could have vacation access whenever she could get vacation time from work. Plaintiff claimed she notified defendant, in writing, by May 31, 2005 that she would take vacation time with the minor child in December 2005.
Defendant did not produce the document nor offer it into evidence.
Defendant kept the minor child on December 22 and 23 because she did not want the minor child to attend the funeral of plaintiff's grandfather. She kept the child until January 1, 2006.
February school vacation 2006
Defendant kept the minor child on the first two days of the February school vacation, February 21 and 22. Defendant claims the plaintiff agreed to forego the 21st and part of the 22nd and told defendant to bring the minor child later in the day on Tuesday, February 22. Defendant brought the child to plaintiff later in the day on the 22nd. Plaintiff and defendant commonly attempted to agree on deviations from court orders. Sometimes the agreements did not hold.
July 5 through 7, 2006/school vacation
Plaintiff agreed to defendant's access of July 4 and for the return of the child on the evening of July 5. Defendant did not return the child between July 5 and 7 (summer vacation days). Defendant claimed minor child was supposed to spend part of the holiday with her for an annual family function pursuant to the order of October 10, 2000. Defendant's access by agreement began on July 7. CT Page 21057
Week beginning August 17 (summer vacation) and last week before school began 2006
Defendant kept minor child for these two weeks. Defendant claims these weeks constituted her vacation and that, per the 2001 order and by agreement, she should have had access two weeks per year whenever her job allowed vacation time.November 23, 2005 (Wednesday/midweek)
Defendant kept the minor child and offered plaintiff another day. Plaintiff did not accept and told defendant he would "hold her in contempt."
February 1 and 8, 2006 (Wednesday/midweek)
Defendant kept the child home asserting the minor child was ill on February 1. On February 8, defendant kept the minor child and offered plaintiff another day, which he refused. Defendant believed February 8 was a snow day and that travel was dangerous.
May 24, 2006 (Wednesday/midweek)
Defendant testified she could not remember the reason she did not allow access.
December 16 through 18, 2005 (weekend)
Defendant testified she could not remember the reason she did not allow plaintiff access.
February 10 through 12, 2006 (weekend)
Defendant told plaintiff the child was ill and the child could not visit on February 10. Plaintiff sought access on the 11th but defendant told him the child was still sick. Minor child attended a basketball game later that day.
In October 2005, plaintiff arrived at defendant's home to pick up the minor child. Defendant and plaintiff disagreed about the time at which plaintiff would return the minor child. After the child entered the car, defendant and her husband approached plaintiff's car. Defendant's husband blocked plaintiff's exit from the driveway. Defendant began to pound on the car window demanding plaintiff let the minor child out of the car. Plaintiff let her out but was able to leave defendant's home with the minor child in the car. Plaintiff drove to Burger King, a short distance from defendant's home. Defendant and her husband pulled behind plaintiff, blocking his exit. Defendant took minor child out of plaintiff's car and defendant's husband began yelling at plaintiff. The minor child re-entered plaintiff's car and plaintiff left. During the incident, the child became visibly upset.
On August 9, 2006, the minor child met with the guardian ad litem (GAL). The child told the GAL she did not feel like crying. She explained that the defendant's husband encouraged her to cry and "carry on" on previous occasions. The GAL testified that the child told her that the defendant's husband said the GAL was trying to get rid of mommy (defendant). The GAL further testified that the child said the defendant's husband stated they would get rid of the GAL.
In her motion for contempt, defendant alleged plaintiff failed to provide health insurance coverage for the minor child. The first order in 1998 required plaintiff and defendant to provide such coverage. No subsequent order modified the original order. Defendant testified that the reason for dual coverage was to allow plaintiff to provide secondary benefits. Plaintiff initially included minor child on his policy but dropped the coverage after he and defendant separated. Defendant also alleged contempt based on plaintiff's failure to allow defendant to take the minor child to her annual family function during the Fourth of July holiday in 2006.
IV. PRINCIPLES OF LAW
"Where . . . the dispute is between private litigants and the purpose for judicial intervention is remedial, then the contempt is civil, and any sanctions imposed by the judicial authority shall be coercive and nonpunitive, including fines, to ensure compliance and compensate the complainant for losses." Connecticut Practice Book Sec. 1-21A. "In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and non-compliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001). "In order to constitute contempt, a party's conduct must be wilful . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind . . . [I]t is axiomatic that, to the extent that one subject to the court's orders does not fully understand his or her obligation pursuant to the orders, it is incumbent on that person or entity to seek clarification . . ." In re Leah S., 96 Conn.App. 1, 9 (2006) (internal citations omitted) (internal quotation marks omitted).
"The court's authority to impose civil contempt penalties arises not from statutory provisions but from the common law . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders . . . [T]he court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both." Keeney v. Buccino, 92 Conn.App. 496, 513 (2006). "The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt . . . The contemnor must establish that he cannot comply, or was unable to do so." Id.
V. ANALYSIS A. Midweek Access
The most recent and controlling court order of October 25, 2004 permits plaintiff visitation not only on specific days, but on other days with due notice. In two out of the four incidents in which defendant kept the minor child against court orders, (November 23, 2005 and March 24, 2006) the defendant offered plaintiff other visitation days to which plaintiff did not agree. Plaintiff's refusal to acquiesce to substitute days does not invoke reference to the order of October 10, 2001 allowing visitation by agreement. The offer of substitute days is a request to deviate from the court order. After plaintiff declined, defendant kept the minor child. She offered no evidence that she was unable to grant defendant access. On November 23, therefore, she wilfully violated the court order.
On February 1, the child was sick and defendant kept the child. There was no wilful violation of a court order. Plaintiff's next scheduled midweek visit was February 8. The plaintiff refused defendant's proposal for a substitute day. Defendant offered sufficient evidence to show that weather conditions may have prevented plaintiff's access. The violation, therefore, was not wilful.
Defendant kept the minor child on May 24, 2006, but could not remember the reason she did not allow plaintiff access. Defendant did not offer evidence of her inability to comply. The court, therefore, concludes a wilful violation.
B. Memorial Day Access
On Memorial Day 2005 and 2006, plaintiff worked in the morning. The most recent order of July 13, 2001 addressing Memorial Day visitation required alternating access each Memorial Day. Defendant had minor child on Memorial Day 2005. Plaintiff was supposed to have access on Memorial Day 2005. Plaintiff worked in the morning of Memorial Day 2006. The parties made no arrangements for pickup or drop off in the afternoon on either day. There was insufficient evidence to conclude that defendant wilfully denied plaintiff access on either Memorial Day holiday.
C. Fourth of July and Summer Vacation (2005)
The last order addressing Fourth of July access was the July 13, 2001 order. That order required each party to alternate Fourth of July access. On July 4, 2005, defendant told plaintiff that plaintiff could pick up the child but defendant could not bring her to plaintiff because defendant had other plans. Again, defendant offered no evidence of an inability to comply. Defendant, therefore, wilfully violated the court order of July 13, 2001.
The October 25th orders allowed plaintiff physical custody during the summer months and allowed defendant two weeks uninterrupted vacation during the same months. The order required the parties to notify each other by May 31st about which two weeks they had selected. Defendant claimed the last two weeks of August (beginning August 17) as her vacation weeks entitling her to access of the minor child. However, defendant failed to notify plaintiff by May 31 according to the 2004 order. Although defendant committed a technical violation of the notice requirement, she did not wilfully violate the order allowing two weeks vacation with the minor child. Defendant's understanding of the order's allowance for two weeks of vacation time with the minor child was reasonable.
Defendant kept the child from plaintiff on December 22 and 23, 2005 because she did not want the child to attend a funeral. Defendant could have attempted to make arrangements for plaintiff not to take the child into the viewing room itself in order to lessen the child's potential fears. Defendant offered no evidence that the child would suffer harm by attending the funeral. She offered no evidence that she was unable to comply with plaintiff's access. Thus, defendant wilfully violated the court order.
During the school vacation from December 28, 2005 through January 1, 2006, defendant kept the minor child from plaintiff. She kept the child between December 28, 2005 and January 1, 2006 based on an agreement between the attorneys. The 2004 order required plaintiff to have access for school vacations. The parties' agreements, though permitted in an earlier order, do not trump the most recent orders. Neither do the private agreements become orders. However, confusion over the role of agreements mitigates against a finding of wilful contempt.
D. Weekend Access
Defendant kept the child on the weekend of December 16 through 18, 2005. She testified she could not remember the reason. Plaintiff testified that defendant called and told him that he could not see the minor child. She offered no evidence of her inability to provide access. The court concludes a wilful violation.
On February 10, 2006, defendant kept the child and told plaintiff the child was ill.
Plaintiff sought access on the 11th, but the defendant told plaintiff the child was still sick. The child attended a basketball game later in the day. The court concludes a wilful violation for February 11 and 12, 2006.
F. Family Function for July 4, 2005
The July 2001 order required alternating yearly access for the July 4th holiday. It did not require family function time for either plaintiff or defendant. Access began with the father in 2001. He had a right to access on July 4, 2005. The defendant did not. Therefore, plaintiff did not wilfully violate a court order when he denied access to defendant on July 4, 2005.
F. Health Insurance Coverage
The 1998 order required both parties to provide health care coverage for the minor child. Initially, the plaintiff complied. He dropped coverage after he and defendant separated.
The plaintiff offered no evidence that he is unable to provide health insurance coverage through his employer. The plaintiff therefore, wilfully violated the 1998 order requiring he provide health care coverage for the minor child.
VI. CONCLUSIONS OF LAW
Defendant wilfully violated court orders on July 4, 2005; November 23, 2005; December 16 through 18, 2005; December 22 and 23, 2005; February 11 and 12, 2006; and May 24, 2006. Plaintiff wilfully violated the court order requiring that he provide health insurance coverage for the minor child.
VII. JUDGMENT
Defendant is ordered to pay $1,000.00 in attorneys fees to plaintiff's counsel for the prosecution of plaintiff's contempt motions. The plaintiff is ordered to immediately provide health insurance coverage through his employer for his minor child, at reasonable cost, no later than January 15, 2007.
IT IS SO ORDERED.