Opinion
KNOFA084107935S
01-10-2018
Petricia S. WEAVER v. Scott A. SENA
UNPUBLISHED OPINION
OPINION
Shluger, J.
A review of the record reveals that the parties, never married, are the parents of one minor child, Matthew Weaver, born May 6, 2007. The plaintiff mother initiated this action originally seeking an order of sole custody.
The parties entered into an agreement dated July 24, 2008, which called for joint custody with primary residence with the mother and for the father to be permitted a five-hour visit, once per week, in the mother’s home.
Since that time, the father has been seeking to expand his visits and the mother has been seeking to limit those visits. On March 1, 2011, the father filed a Motion for Modification to expand his visitation and on April 18, 2011, the father was ordered to undertake a large number of actions to familiarize himself with the needs of his young son all of which he accomplished. A Guardian ad litem was appointed and the parties returned to court on August 21, 2012 for a hearing regarding the modification of the father’s access.
At that time, the Guardian ad litem testified that " she (the mother) would like to terminate Mr. Sena’s parental rights." The Guardian ad litem further testified that " Ms. Weaver has been diagnosed with post-traumatic stress disorder and the way that that manifests itself is with a tremendous amount of anxiety, the symptom of that is frequently extreme efforts to control all situations. That’s the manner in which she copes with the anxiety and I see that in every aspect of her parenting and her relationships with caregivers for Matthew, educators, therapists, with me, with Mr. Sena, and I also witnessed, or through my investigation discovered information that her moods can be very volatile, and I attribute that- in discussions with Ms. Reddick (the mother’s therapist) and attribute that also to her illness."
In its memorandum of decision dated August 29, 2012, the court found:
The mother is overly controlling and manipulative and seeks to undermine or sabotage the father’s attempts to have a relationship with his child. She has rescheduled doctor’s appointments for the child at the last minute, knowing that the father intended to attend those appointments, she has prohibited the doctor’s office and day care facility from disclosing information to the father, and she has kept the child home from daycare on occasions when she knew the father was intending to visit the day care facility. Her proposed orders allocate not one holiday for the father. Perhaps most disturbing, the mother has brought the child into her therapy sessions wherein one of the principal issues involves custody and visitation of the child. In sum, the mother has engaged in behaviors resulting in alienating the child from the father.
During these recent proceedings, the court finds that the mother’s behaviors and conduct have worsened.
The father lives in Plymouth, Massachusetts, and the mother lives in Groton, Connecticut, approximately 2-1/2 hours apart. The current order provides that the father will have access with the child on alternating weekends and for all but three weeks during the summer.
The plaintiff has filed a plethora of motions for contempt including Motion for Contempt dated September 15, 2017 (267) alleging 10 violations (with sub parts), Motion for Contempt dated October 9, 2017 (268) in 6 parts (with sub parts), Motion for Contempt dated October 23, 2017 (267.2) in 3 parts (with sub parts), Motion for Contempt dated November 10, 2017 (270) in 7 separate parts (with sub parts), Motion for Contempt dated November 27, 2017 (270.25) in 3 parts (with sub parts) and Motion for Contempt dated November 27, 2017 (270.75) in 2 parts.
The defendant filed a Motion for Attorneys fees and Sanctions (269) and submitted an Affidavit of Fees in the amount of $5,175.00 (277).
After the December 8, 2017 hearing, the plaintiff filed another Motion for Contempt in 16 parts with numerous sub-parts but testified at the hearing on January 5, 2018 that she has no proof to sustain these claims.
The court conducted an all-day hearing on December 8, 2017 and then a half-day hearing on January 5, 2018, wherein the plaintiff, representing herself examined the defendant in great detail. It should be noted that during her presentation, the plaintiff, at numerous times, was sobbing and weeping, and would frequently murmur to herself in an apparent effort to calm herself. Despite the court’s frequent invitations for her to take a break to compose herself, she declined.
The plaintiff frequently involves various police departments in the visitation schedule and involves the child in this police interaction. The plaintiff brought the 10-year-old child to court on January 5, 2018.
The sum and substance of the contempt complaints arise out of a number of issues which the court will address separately.
1. The plaintiff claims that the defendant, who provides the medical insurance for the child through his employer, failed to grant her access to said policy. The court finds this claim to be unproven. The defendant sent three separate insurance cards to the plaintiff, which she readily admits she has in her possession. Her complaint is that she has not been given online access to some financial information regarding the billing. The defendant admits this, but explains that it is simply to keep the plaintiff from accessing his own personal financial information, and that the plaintiff has full access and ability to process insurance claims for the child and does so without problem. The court finds proven by clear and convincing evidence that the plaintiff has had the cards, and access to all necessary insurance information since April 7, 2017. The court further finds that the plaintiff receives all of this information with paper explanation of benefit forms which arrive in the mail sometime after the visit. Moreover, the plaintiff testified on January 5, 2018 that no medical services for the child were ever denied as a result of the defendant’s actions.
2. The plaintiff claims that the defendant did not partake fully in his access with the child on the weekend of April 22, 2017. The defendant readily agrees that he did not complete his access on that weekend and explains that at the beginning of his access, he was bringing the child to a baseball game in the hometown of the mother and child, when he noticed that the mother was present at the baseball game. Given the toxic history between the parties, the defendant did not want to be present at the child’s ball game when a scene would likely develop, and so he dropped off his son and voluntarily relinquished his visit, so as to avoid any confrontations from the mother. The court finds this explanation altogether understandable and finds that the father’s actions were in fact, in the child’s best interest.
3. The plaintiff claims that the defendant sometimes fails to text her that they have arrived safely at his home in Massachusetts. The defendant testified credibly that on occasion, they arrive late or are otherwise occupied, and he has, on occasion, failed to send the required text. The court finds this explanation to be understandable and finds no contempt.
4. The plaintiff claims that the defendant interferes with her telephone calls with the child when the child is in the father’s care. The court finds that the defendant permits the child to have unfettered access to cell phones and computers to communicate with his mother as frequently as he desires. There have been occasions when the father discontinues a call between the mother and the child when the mother is upset or otherwise in an agitated state. The court finds this explanation to be understandable and finds no contempt.
5. The plaintiff claims that the defendant is in contempt for having failed to pay his share of a week of summer camp during the summer of 2017. The court finds that this particular week was for an additional week which the mother fought for and won and then placed the child in a summer camp on her watch without the father’s consent. The court can find no clear and understandable order that the defendant is compelled to pay a share of this summer camp and thus, finds no contempt.
6. The plaintiff claims that the child is permitted to play video games for hours at a time in the father’s care despite an order limiting screen time to 15 minutes per day. The court agrees that this is a clear and understandable order and that its violation is willful and thus, the court finds that defendant is in contempt for this and only this conduct. Other than this complaint involving video game use, the court finds that these voluminous claims of contempt are brought in bad faith and entirely without color of law.
For example, in the Motion for Contempt dated September 15, 2017, at paragraph 6, the plaintiff claims " the defendant is in contempt of the specific court order that neither party is to use disparaging comments about the other party. While the minor child resided entirely in Lakeville, Massachusetts with his paternal grandparents, as stated above on 7/17/17 within earshot of the minor child to paternal grandfather verbally assaulted the plaintiff stating that ..."
It is axiomatic that the defendant cannot be in contempt for something said by his father.
By way of another example, in the Motion for Contempt dated September 15, 2017 at paragraph 10, the plaintiff claims " the defendant chose to allow the minor child to be the sole passenger in a car driven by a newly licensed teenager ... the defendant’s girlfriend’s son." The plaintiff could point to no court order prohibiting such conduct and as a result, there cannot possibly be a contempt of court.
By way of another example, in the Motion for Contempt dated October 9, 2017 at paragraph 4 the plaintiff claims " the plaintiff thinks that the defendant misreported his financials on the affidavit, which was presented during the 5/25/17 hearing to rerun the percentages for child support according to the guidelines." Even assuming arguendo that the defendant did in fact misreport his financial condition, that would not constitute a contempt of court.
By way of another example, in the Motion for Contempt dated October 23, 2017 at paragraph 2, the plaintiff claims " on 10/23/17 defendant did not bring the minor child into the police station. He got out of his car, handed the overnight bag to the minor child, got in his car and began to drive away ..." The parties conduct their drop-offs and pickups at a police station midway between their homes. The plaintiff could point to no court order prohibiting such conduct and as a result, there cannot possibly be a contempt of court.
By way of another example, in the Motion for Contempt dated November 10, 2017 at paragraph 1 the plaintiff claims " during the court hearing on 10/26/17 the defendant committed perjury under oath in reference to his compliance to court order 435698 ..." As stated above, perjury, even if it occurred, is not the same as contempt of court.
By way of another example, in the Motion for Contempt dated November 10, 2017 at paragraphs 2 and 3, the plaintiff seeks to hold the defendant’s attorney in contempt. It is axiomatic that a non-party who is not subject to these court orders, cannot be in contempt for failing to comply with a court order.
By way of another example, in the Motion for Contempt dated November 10, 2017 at paragraph 5, the plaintiff alleges that " upon arriving at school to pick up the minor child on 10/26/17, the plaintiff was notified that the defendant stopped by unannounced and sought a visit with the minor child during after school care." There being no court order prohibiting such conduct, it cannot be a contempt to so act.
On January 5, 2018 the plaintiff acknowledged that " we are here because I was forced to spend several hours with Aetna to access the coverage between May and November 2017."
All of these examples demonstrate by clear and convincing evidence that the plaintiff has filed motion after motion entirely without color of law and meant to harass, embarrass, frustrate and inconvenience the defendant. As a result, the court finds it appropriate that the plaintiff reimburse the defendant a portion of his attorneys fees; only one minor contempt involving video game usage was proven.
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 (2007). The movant has the burden of proof to show ... the existence of a court order and noncompliance with that order." Isler v. Isler, 50 Conn.App. 58, 66-69 (1998). " Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 1 (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 (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 (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).
The defendant has requested an award of attorneys fees from the plaintiff.
" As a substantive matter, [t]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys fee from the loser ... That rule does not apply, however, where the opposing party has acted in bad faith ... It is generally accepted that the court has the inherent authority to assess attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." (Citations omitted; internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. at 844, 850 A.2d 133. " [A] litigant seeking an award of attorneys fees for the bad faith conduct of the opposing party faces a high hurdle." Berzins v. Berzins, 306 Conn. 651, 662, 51 A.3d 941 (2012). " To ensure ... that fear of an award of attorneys fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes ..." (Internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. at 845, 850 A.2d 133. Thus, " Maris makes clear that in order to impose sanctions pursuant to its inherent authority, the trial court must find both [1] that the litigant’s claims were entirely without color and [2] that the litigant acted in bad faith." (Emphasis in original; footnote omitted.) Berzins v. Berzins, supra, at 663, 51 A.3d 941.
Significantly, our appellate courts have " declined to uphold awards under the bad-faith exception absent ... a high degree of specificity in the factual findings of [the] lower courts." (Internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. at 845, 850 A.2d 133.
For instance, in Kupersmith v. Kupersmith, 146 Conn.App. 79, 78 A.3d 860 (2013), this court concluded that the trial court " found generally both that the defendant’s motion [to vacate] was entirely without color and that he acted in bad faith, yet the court did not support that finding with factual specificity ... The sole factual finding on which the court determined that the defendant’s motion to vacate was made in bad faith was its conclusion that the motion was lacking in a reasonable basis in fact and law ... [W]e do not agree with the court that the defendant’s motion to vacate was entirely without color. Because the court made no specific findings of fact to support its conclusion that the defendant filed his motion in bad faith, we conclude that the court [improperly awarded] attorneys fees ..." (Citations omitted; internal quotation marks omitted.) Id., at 98-99, 78 A.3d 860. Moreover, our Supreme Court’s holding in Berzins makes clear that the two required findings must be separate from each other. Berzins v. Berzins, supra, 306 Conn. at 663, 51 A.3d 941 (" although the court found that the [defendant’s] actions were entirely without color and supported that finding with a high degree of specificity in its factual findings, the court did not make a separate finding that the [defendant] acted in bad faith." Rinfret v. Porter, 173 Conn.App. 498, 508-10, 164 A.3d 812, 818-19 (2017).
In addition, the Court maintains in its equitable powers to award attorneys fees from one party to the other. For all of the reasons stated above, the Court finds that an award of attorneys fees to the father is warranted. For the foregoing reasons, the defendant is found in contempt for permitting the child to play video games in excess of the time permitted by previous court orders with no sanction being imposed. All other claims of contempt are found to be unproven. As a result, the plaintiff is ordered to pay counsel fees to the defendant in the amount of $2,000 at the rate of $50 per week commencing February 1, 2018. She is cautioned to file no further frivolous motions unsupported by facts.