Opinion
NNHFA166061997
09-29-2017
Mohan Sreenivasan v. Alicia Sreenivasan
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION PLAINTIFF'S MOTION FOR CONTEMPT (#188)
Karen Goodrow, J.
I. Procedural History and Facts
This dissolution action went to judgment on March 7, 2017. The Court (Emons, J.) incorporated the parties' separation agreement into the judgment. The parties were represented at the dissolution hearing by counsel. Multiple postjudgment motions have been filed. On September 22 and 25, 2017, a hearing was held on the plaintiff's Motion for Contempt (#188). The parties were represented by counsel, and each party presented evidence. The plaintiff alleges that the defendant is in contempt for her wilful violation of the court's order of April 18, 2017 that neither party take the child out of the State of Connecticut. The defendant concedes that the court order is clear, and that she violated the order by taking the child to the State of New Jersey. She asserts, however, that her conduct was not wilful. The plaintiff asserts that the defendant willfully violated the court's order. For the reasons stated below, the court denies the Motion for Contempt.
II. Facts
On April 18, 2017 this Court ordered that neither party take the child outside of the State of Connecticut until further order of the court. The defendant took the minor child from the State of Connecticut to the home of the defendant's parents in New Jersey. The defendant's conduct violated the court's order of April 18, 2017.
On April 30, 2017, the defendant vacated the former marital home. Pursuant to the dissolution agreement and judgment, the plaintiff had the right to reside at the former marital home commencing May 1, 2017. At the time that the defendant left the residence, she was exercising her parenting time with the minor child. Two police officers and the plaintiff were present at the home when the defendant vacated with the child. The defendant, along with the minor child and the maternal grandmother, stayed in a hotel in Guilford, Connecticut with the minor child until May 2, 2017. On May 2, 2017, contrary to the Court's order, the defendant took the child to the State of New Jersey with the maternal grandmother. The defendant went to her parents' home with the child because she felt she and the child would be safe there, and because there were already accommodations there for the child. The defendant and the minor child stayed at the home of the maternal grandparents for a few days, when the defendant returned the child to the State of Connecticut, upon receiving a phone call from the police. The defendant was aware of the court order requiring that neither party take the child out of the State of Connecticut, however, the defendant believed that she had no other option in order to provide a safe and appropriate living environment for the minor child. Prior to April 30, 2017, the plaintiff made the defendant aware that his parents had offered for the defendant to live with them upon vacating the former marital home. However, the defendant did not feel comfortable availing herself of the offer because she felt that it was a " trap" set by the plaintiff. The defendant testified credibly that in the past, the plaintiff had lied to her, " faked" having cancer in order to get the defendant to move back to Connecticut, and threatened her that his parents would testify against her in court.
At the time of the offer, the defendant did not enjoy a particularly close relationship with the paternal grandparents.
The parties had a court date scheduled for May 1, 2017, however, the hearing had been rescheduled. Prior to leaving for New Jersey on May 2, 2017, the defendant went to the New Haven Judicial District courthouse, and inquired of the clerk's office of what she should do in light of the court's prior order. She had attempted to reach her attorney for advice, but was unsuccessful. Believing she had no other option, the defendant took the child to New Jersey with her mother. Although the defendant testified that she was afraid of the plaintiff, the Court does not credit the defendant's testimony that, for years, the plaintiff was violent. However, the Court credits the defendant's testimony that the plaintiff exhibited a " short fuse" and had a temper, causing the defendant concern. The defendant perceived the plaintiff's actions towards the defendant as harassing, and escalating in nature. The Court credits the defendant's testimony that in taking the child to New Jersey, the defendant did not intend to violate the court's order. The Court shall set forth additional facts as is necessary to its analysis.
III. Discussion
" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Internal quotation marks and citation omitted.) Brochard v. Brochard, 165 Conn.App. 626, 637, 140 A.3d 254 (2016). Civil contempt may be direct (conduct occurring in the presence of the court) or indirect (conduct occurring outside of the presence of the court). Cologne v. Westfarms Associates et al., 197 Conn. 141, 150, 496 A.2d 476 (1985). Prior to a finding of contempt, the alleged contemnor is entitled to the benefit of certain constitutional protections.
In 1985, the Connecticut Supreme Court, relying on U.S. Supreme Court precedent, articulated the following constitutional safeguards that must be satisfied in indirect contempt cases: the individual charged with contempt must be advised of the charges against him and have a reasonable opportunity to meet the charges by way of defense or explanation; have the right to be represented by counsel, and have counsel appointed if he is indigent; and have a chance to testify and call other witnesses by way of defense or explanation. Cologne v. Westfarms Associates et al., 197 Conn. at 150-51. In 2011, The United States Supreme Court held that " the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year)." (Emphasis in original.) Turner v. Rogers et al., 564 U.S. 431, 448, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011). Deciding a contempt matter without an evidentiary hearing is an abuse of discretion. Brochard v. Brochard, supra .
" 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. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both." (Citations and internal quotations omitted.) Gil v. Gil, 94 Conn.App. 306, 310-11, 892 A.2d 318 (2006), citing Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982).
In order for the court to conclude that a party is in contempt, the court must find that there existed a sufficiently clear and unambiguous order for which the party had notice, that the party did not comply with the order, and that the non-compliance was willful. Mettler v. Mettler, 165 Conn.App. 829, 140 A.3d 370 (2016); Brody v. Brody, 145 Conn.App. 654, 77 A.3d 156 (2013); Pace v. Pace, 134 Conn.App. 212, 215-16, 39 A.3d 756 (2012); Celini v. Celini, 115 Conn.App. 371, 380-81, 973 A.2d 664 (2009), citing In re Leah, 284 Conn. 685, 935 A.2d 1021 (2007). The moving party bears the burden of proof by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 105 A.3d 887 (2015).
" To constitute contempt, a party's conduct must be willful . . . Noncompliance alone will not support a judgment of contempt . . . Scott v. Scott, 90 Conn.App. 883, 889, 879 A.2d 540 (2005). 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." (Internal quotations omitted; citation omitted; internal quotation marks omitted.) Brody v. Brody, 145 Conn.App. at 662, citing Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998). " Although it [is] the [plaintiff's] burden to demonstrate that the [defendant] was not in compliance with the court's orders, . . . it [is] the [defendant's] burden to demonstrate that her noncompliance was not wilful." (Citation omitted; internal quotation marks omitted.) Norberg-Hurlburt v. Hurlburt, 162 Conn.App. 661, 671, 133 A.3d 482 (2016), citing Marshall v. Marshall, 151 Conn.App. 638, 651, 97 A.3d 1 (2014).
" It is undisputed that a judgment of civil contempt is improper if the contemnor, through no fault of his own, was unable to obey the court's order . . . It is, however, equally undisputed that, if a finding of willful misconduct is based on a court's determination of the credibility of relevant testimony at trial, we will overturn it only if the record demonstrates a manifest abuse of discretion. [T]he trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Pace v. Pace, supra at 216, citing LaBossiere v. Jones, 117 Conn.App. 211, 224, 979 A.2d 522 (2009). " [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 and citations omitted.) Giordano v. Giordano, 127 Conn.App. 498, 506, 14 A.3d 1058 (2011), citing Sablosky v. Sablosky, 72 Conn.App. 408, 423-24, 805 A.2d 745 (2002).
" A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court's discretion. '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.' Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985)." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).
There is no dispute that the defendant violated a clear court order; the question for the court is whether or not the defendant's violation was wilful. " Wilful" conduct in the context of a civil contempt proceeding requires more than mere non-compliance. Trial courts are afforded great discretion in determining whether conduct is wilful. A reviewing court will utilize a two-step inquiry in determining whether the trial court has abused its discretion: " First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt . . . Second, . . . we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court's determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding." (Internal quotation marks and citation omitted.) Brochard v. Brochard, supra .
Connecticut case law does not provide a clear and unequivocal definition of the term " wilful" in the context of civil contempt. " Black's Law Dictionary (6th Ed. 1990) demonstrates the varied ways that wilful has been defined ranging from 'voluntary; knowingly; deliberate . . . [i]ntending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary' to [p]remediatated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences.'" Doe v. Marselle et al., 236 Conn. 845, 675 A.2d 835 (ftnt. 8) (1996).
Courts have defined the term wilful differently, depending upon the context. For instance, in the Marshal case, the Appellate Court affirmed the denial of contempt where the trial court credited the plaintiff's testimony that he had not intended to violate the court order. In Eldridge, the finding of contempt was affirmed where the alimony obligor terminated payments based upon his good faith belief that he was justified in suspending payments because he had over-paid. " The general rule was properly stated by the trial court in this case. An order of the court must be obeyed until it has been modified or successfully challenged." (Internal quotations and citations omitted.) Eldridge v. Eldridge, 244 Conn. at 529. In Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985), the denial of contempt was affirmed, where the trial court found that the failure to comply with the court order was not an intentional violation but rather " an act based on a mistaken perception that the parties' later [private] agreement had modified the court's earlier action." In O'Brien v. O'Brien, the trial court found that the sale of stocks and exercise of stock options constituted a violation of the automatic orders (Practice Book 25-5). However, the court found that the violation was not wilful, in essence, because the conduct was motivated by the party's desire to limit potential loss in value of the marital assets. O'Brien v. O'Brien, 161 Conn.App. 575, 128 A.3d 595 (2015), reversed on other grounds, 326 Conn. 81, 161 A.3d 1236 (2017).
The plaintiff/payor had calculated an over-payment in excess of $225,000. The court found an over-payment, albeit substantially less. The trial court rejected the plaintiff's good faith argument, finding that the plaintiff was required to file a motion for modification before he was entitled to any credit.
The Court finds that the defendant's conduct in taking the child to the State of New Jersey on May 2, 2017 was a violation of the Court's order. However, the Court finds that the defendant's conduct was not wilful as it was motivated by a desire to provide the minor child with a temporary safe and appropriate living environment, and not with the intention of violating the Court's order. The defendant had not secured alternative living arrangements upon leaving the former marital home on April 30, 2017. She stayed in a hotel with the minor child and her mother for two days without adequate accommodations for the child. When she left the former marital residence, the police were present, and the plaintiff had expressed his intention to resume living at the home. Before leaving for New Jersey, the defendant attempted to seek advice from both her attorney and the court clerk's office. When she went to New Jersey, she did so temporarily, with the desire of providing a safe and appropriate living environment for the minor child. She was accompanied by her mother, stayed in her parents' home, and returned the child to Connecticut to father at the start of his parenting schedule. Although the defendant subsequently moved in with the paternal grandparents in Bristol, Connecticut, she did not avail herself of the original offer because she felt that the plaintiff was setting her up for a " trap."
The plaintiff has proven by clear and convincing evidence that the defendant violated a clear court order. However, the defendant has established that the violation was not wilful. The defendant's action in taking the minor child temporarily to the State of New Jersey was a violation of this Court's order, but it was not a wilful violation.
IV. Order
The Plaintiff's Motion for Contempt is denied.