Opinion
WWMCV154017848S
01-11-2016
Richard K. Wilson v. Bucky Squires
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Harry E. Calmar, J.
This motion for contempt between the plaintiff, Richard Wilson, and the defendant, Bucky Squires, came before the court by a motion for contempt #105.00 dated August 31, 2015. The matter was tried to the court on October 22, 2015. The plaintiff was represented by Attorney Andrew Ewalt and the defendant was represented by Attorney Douglas Stearns. Post trial memoranda were filed through November 23, 2015. Both parties submitted proposed findings of fact and proposed remedies. The court has considered the credible evidence, the parties' arguments and the proposed orders. Additionally, the court had the opportunity to observe the demeanor of the parties and the witnesses at the time of trial. The court has also carefully examined the exhibits admitted during the hearing.
The plaintiff, Richard Wilson, and the defendant, Buckland Squires, reside separately at 40 Creasy Road in Brooklyn, Connecticut. The long term owner of the property, which apparently is a junkyard of sorts, is deceased. The plaintiff lives in a mobile trailer and the defendant above a garage. Both live without cost at the pleasure of the owner's heir Donna Vargas. Both operate salvage businesses out of their respective areas: selling, trading and bartering property on the premises. In that environment their relationship has soured, so much so, that the plaintiff sought and obtained a civil order of protection ex parte against the defendant on June 25, 2015. The court, Dos Santos, J., affirmed the order of protection after a hearing on July 7, 2015. The order established, for the period of one year, a full no contact, residential stay away protective order that specifically ordered the defendant to stay away from " trailer and vehicles that the plaintiff owns." The motion for contempt asserts that since the date of the order, the plaintiff, on nearly a daily basis, has observed the defendant riding an ATV vehicle " on the property in which his home is located . . . and on July 21, 2015 the plaintiff observed four-wheel vehicle tracks around his storage trailer located about 50 feet behind his house." The plaintiff introduced photographic exhibits of some of the trampled grass near his home, personal property around his trailer, assorted aluminum rims, trailers and scrap metal on the property. During cross-examination the plaintiff asserted that he had photographs of the defendant taking his property. However, the photographs were never presented in court. The motion also asserts that the plaintiff's aluminum tire rims were missing, that on July 24, 2015, the defendant stated to the plaintiff " not only are you a nigger, but you're a stupid nigger, you need to smarten up. Don't you know you're in a white man's world" and that on numerous occasions since the date of the order, the plaintiff observed the defendant and/or his wife taking pictures or videotaping him in and around his house. The plaintiff also contends that approximately two weeks after the date of the order the plaintiff overheard the sound of gunshots 200 feet behind the defendant's house alarming the plaintiff that the defendant may not have surrendered or transferred his firearms and ammunition, as required by the order. Since the date of the order the plaintiff contacted state police on numerous occasions, met with them at Troop D in Danielson, Connecticut, and provided written statements. Nevertheless, the plaintiff contends the state police have taken no known action against the defendant.
At the October 22, 2015, contempt hearing the plaintiff testified to the actions described above, all of which he attributed to the defendant, as well as other damage to his personal vehicles and property. He testified that the defendant's actions made him feel discouraged, scared and threatened.
The defendant testified that he engaged in none of the alleged behaviors and did not make the statements attributed to him by the plaintiff. The defendant noted that when the police were called to the property, by the plaintiff, on several occasions they were unable to find any evidence that the defendant possessed guns, damaged the plaintiff's vehicles or in any way caused harm to the plaintiff. He acknowledged that as of the July 7, 2015, order protection hearing he continued to possess a black powder long gun, which he did not realize he was required to surrender when the initial ex parte order was issued on June 25, 2015. He immediately surrendered possession of the rifle and had no other firearms or ammunition. The defendant acknowledged actively cutting up firewood and disassembling old trailers, but denies the wood or the trailers belonged to the plaintiff. The defendant introduced receipts from Ms. Vargas documenting ownership of trailers which he cut up for scrap metal.
Donald Merritt, a witness called by the defendant, testified that he and Chris Gorgoglioni were on the property shooting guns during the time period in question. Merritt testified that he lived with defendant for approximately three months after the protective order was issued and was with the defendant almost every single day during the period in question. He testified that he never witnessed defendant committing any of the acts or making any of the statements alleged by the plaintiff. To the contrary, he noted that there were often many individuals on the property, some guests of the plaintiff, including a group on ATVs who had the opportunity to commit the acts complained of by the plaintiff.
DISCUSSION
The defendant asserts that the motion for contempt is not available for a violation of an order of protection granted pursuant to General Statutes § 46b-16a, arguing that the statute spells out the application process for the order protection and the terms under which the order may be granted. The defendant argues that because there is no provision for any contempt proceeding, or even a mention of contempt, the legislature limited the remedy for violation of an order of protection to General Statutes § 53a-223c. The remedy, therefore, is to contact the police if the protected person believes there has been a violation of the order and if the police believe a violation has occurred they can pursue criminal charges. The defendant points out that a similar statute, General Statutes § 46b-15, the statute that applies to an " application for relief from abuse, " provides that a violation of the order may be remedied by filing a motion for contempt. See § 46b-15(i). Accordingly, the defendant argues that if the legislature intended for a violation of the order protection to be remedied by a motion for contempt then language for such a remedy would have been inserted in the statute as it was with § 46b-15(i). While it is true that § 46b-16a does not specifically mention contempt as a remedy, the authority granted in this section is very broad. The court may make such orders as it deems appropriate to protect the applicant if it finds reasonable grounds to believe that the respondent " will continue to commit such an act or acts designated to intimidate or retaliate against the applicant . . . An action under this section shall not preclude the applicant from subsequently seeking any other civil or criminal relief based on the same facts and circumstances." Public Acts 2014, No. 14-217, § 186-90.
Section 46b-15 applies to the family members, household members and those in a romantic relationship.
" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense . . . Contempt may be civil or criminal in character . . . Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992). Our case law classifies civil contempt as conduct directed against the rights of the opposing party . . . In re Jeffrey C., 261 Conn. 189, 197, 802 A.2d 772 (2002). Civil contempt involves the wilful violation of an applicable court order . . . Campbell v. Campbell, 120 Conn.App. 760, 767, 993 A.2d 984 (2010)." (Emphasis in original; internal quotation marks omitted.) Print Source, LTD v. Lighthouse Litho, LLC, Superior Court, judicial district of New Haven, Docket No. CV-12-6029052 (July 3, 2013, Zemetis, J.) (56 Conn. L. Rptr. 422, 423, *8).
" A contempt is considered civil when the punishment is wholly remedial, serves only the purpose of the complainant, and is not intended as a deterrent to offenses against the public . . . Sanctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court's order and compensating the complainant for losses sustained." Town of Woodbridge v. Weiss, Superior Court, judicial district of New Haven, Docket No. CV-09-4036946-S, (August 20, 2015, Wilson, J.). " Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts . . . To constitute contempt, a party's conduct must be willful. Noncompliance alone will not support a judgment of contempt . . ." (Internal citation omitted; internal quotation marks omitted.) McBurney v. Paquin, Superior Court, judicial district of Hartford, Docket No. X04-CV-014027736-S, (September 25, 2015, Sheridan, J.) Accordingly, this court is authorized by common law and statutory law to grant the plaintiff's requested relief.
" Civil contempt, as opposed to criminal contempt, lies in cases where a party to an action is in willful breach of one or more provisions of a court order without sufficient justification . . . Recent Appellate Court decisions provide a clear roadmap for courts to follow in such cases. First and foremost, the party must be given fair notice and an opportunity to be heard. Failure to do so is a denial of due process . . . A finding of contempt is a question of fact . . . To constitute contempt, a party's conduct must be willful . . . Noncompliance alone will not support a judgment of contempt . . . A finding of contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court." Taccogna v. Turner, Superior Court, judicial district of Litchfield, Docket No. CV-12-5007399-S, (March 20, 2013, Danaher, J.).
" Our state's Supreme Court has decided recently that a court must find in an indirect civil contempt proceeding that a party committed a contemptuous act by clear and convincing evidence. In the recent decision of Brody v. Brody, 315 Conn. 300, 316, 318-19, 105 A.3d 887 (2015) the court held: Contempts of court may also be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court . . . A refusal to comply with an injunctive decree is an indirect contempt of court because it occurs outside the presence of the trial court . . ." (Internal quotation marks omitted.) Town of Woodbridge v. Weiss, supra, Superior Court, Docket No. CV-09-403 6946-S.
" Recently our Supreme Court ruled that contempt must be proven by clear and convincing evidence, stating: Following a review of persuasive indirect civil contempt case law, we ultimately conclude that, under Connecticut law, such proceedings should be proven by clear and convincing evidence . . . This heightened standard of proof adequately characterizes the level of certainty appropriate to justify civil contempt sanctions, especially when those sanctions may include incarceration . . . Moreover, within our state's existing legal framework for indirect civil contempt proceedings, a clear and convincing standard of proof is consistent with the threshold substantive requirement that the directives of the underlying court order be clear and unambiguous . . . Our rigorous due process requirements for indirect civil contempt proceedings likewise demand a heightened evidentiary standard." (Internal quotation marks omitted.) Simmons v. Simmons, Superior Court, judicial district of Fairfield, Docket No. FA-14-4046362-S, (October 16, 2015, Adelman, J.) (citing Brody v. Brody, 315 Conn. 300, 318-19, 105 A.3d 887 (2015).
The court is hard pressed, weighing the evidence presented, to draw any firm conclusions concerning the activities and behaviors which have occurred at 40 Creasy Road. When the owner was alive the parties were likely civil with each other. Now that they are attempting to live off the same land and resources, the relationship is no longer civil. The plaintiff was unable to provide clear and convincing evidence of the defendant's contemptuous conduct. The court finds both parties likely contributed to the breakdown of their relationship. Moreover, even if the defendant could be held more culpable or responsible than the plaintiff, based on the record, the court is unable to find the defendant committed contemptuous acts by clear and convincing evidence. On these facts, the plaintiff has not established, and certainly not by clear and convincing evidence, the defendant willfully disobeyed the court's order of July 7, 2015.
Motion #105.5 is denied.
The objection Motion #107 is sustained.