Opinion
NNHFA144064115S
09-23-2019
Beth MCDANIEL v. Eric MCDANIEL
UNPUBLISHED OPINION
OPINION
Daniel J. Klau, Judge
The defendant asks the court to find the plaintiff in civil contempt for failing to pay the mortgage on the former marital home and allowing it to be foreclosed. As set forth below, the court finds that the plaintiff violated a clear and unambiguous court order to pay the mortgage, but does not find the plaintiff in wilful contempt. However, pursuant to its inherent authority to impose remedial sanctions for a non-wilful violation of a court order, the court orders the plaintiff to indemnify the defendant for attorneys fees he paid to his law firm in connection with the foreclosure proceedings. The court also grants the defendant’s request for attorneys fees.
I. FINDINGS OF FACT
Pursuant to a Marital Settlement Agreement ("Agreement"), the court entered a final judgment of dissolution on January 20, 2016. Paragraph 6.1 of the Agreement addressed the marital home, title to which the parties held jointly. The Agreement provided that the plaintiff would have exclusive use and possession of the marital home postjudgment, but gave the plaintiff three options: (1) list the property for sale by February 1, 2016; (2) remove the defendant from the existing mortgage by refinancing the property no later than January 20, 2021; or (3) sell the property by that date. Under all of these options, the plaintiff was solely responsible, postjudgment, for paying the mortgage, property taxes and other expenses associated with the property.
The plaintiff did not list the property for sale by February 1, 2016. Instead, she continued to pay the mortgage for about one year, until January 2017. The plaintiff was gainfully employed at the time, but testified that other expenses increased and made paying the mortgage impossible.
In February or March 2017, the plaintiff asked the defendant to sign a listing agreement for the property. He refused to do so unless she brought the mortgage current. Several months later the property went into foreclosure. See Docket No. NNH-CV17-6071067-S, Wells Fargo Bank, N.A. v. Eric McDaniel et al. The plaintiff, through counsel, requested financial information from the defendant as part of an effort to persuade the bank to modify the existing mortgage. The modification would not have released the defendant from the mortgage. The defendant declined to provide the requested information.
The court takes judicial notice of the docket in the foreclosure action. Judgment of strict foreclosure entered on July 23, 2018. The judgment lists the debt, including attorneys fees, as $109,553.75, and the fair market value of the property as $115,000.00. Notably, the defendant does not claim loss of his share of the equity as damages resulting from the plaintiff’s alleged contempt.
The defendant incurred legal expenses in the foreclosure proceedings. Specifically, he paid $1,120 to Cohen & Wolf to represent his interest in that action.
The court will set forth other findings of fact as necessary.
II. DISCUSSION
A.
Under Connecticut law, a finding of civil contempt requires proof that a party wilfully violated a clear and unambiguous court order. See Gabriel v. Gabriel, 324 Conn. 324, 333-34, 152 A.3d 1230 (2017). Further, the court must find that the alleged contemnor wilfully violated the order by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015).
Paragraph 6.1 of the Agreement is clear and unambiguous in its requirement that the plaintiff "shall be solely responsible for all costs and expenses associated with the property; including the mortgage, taxes, insurance, and utilities" and that "[s]he shall indemnify and hold the Husband harmless from liability associated with said costs and expenses." The court finds, by clear and convincing evidence, that the plaintiff violated paragraph 6.1 by failing to pay the mortgage and allowing the property to go into foreclosure.
The question remains whether the violation was wilful. Our Supreme Court has long defined wilfulness as more than an intention to perform an act proscribed by law ..."We have held that wilful conduct ‘must encompass both the physical act proscribed by the statute and its injurious consequences. ’" (Emphasis added.) Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 138-39, 479 A.2d 231 (1984) (citing DeMilo v. West Haven, 189 Conn. 671, 679, 458 A.2d 362 (1983)); Alteiri v. Colasso, 168 Conn. 329, 362 A.2d 798 (1975); Rogers v. Doody, 119 Conn. 532, 178 A. 51 (1935)). "Not only the action producing the injury but the resulting injury must be intentional." DeMilo v. West Haven, 189 Conn. 679.
The court does not find that the plaintiff’s failure to pay the mortgage was wilful as defined above. The court credits the plaintiff’s testimony that although she was able to pay the mortgage for a year after the divorce, the cost of owning and maintaining the marital property ultimately proved to be more than she could afford alone. She did not stop paying the mortgage with the intent to cause financial harm to the defendant. Indeed, as noted above, the defendant does not claim "loss of equity" damages.
B
Although the court does not find the plaintiff in wilful contempt, the court possesses the inherent authority to impose remedial sanctions for the non-wilful violation of a court order. "It has long been settled that a trial court has the authority to enforce its own orders. This authority arises from the common law and is inherent in the court’s function as a tribunal with the power to decide disputes." O’Brien v. O’Brien, 326 Conn. 81, 96, 161 A.3d 1236 (2017). "In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party’s failure to comply with a court order ... Because the trial court’s power to compensate does not depend on the offending party’s intent, the court may order compensation even if the violation was not willful." (Emphasis added; citations omitted.) Id., 98-99.
The court finds that the plaintiff’s failure to pay the mortgage caused the defendant to suffer a loss of $1120 in the form of attorneys fees paid to Cohen & Wolf to represent him in the foreclosure action. The court orders the plaintiff to indemnify the defendant for that loss within 30 days of notice of the court’s decision.
C
The defendant also seeks an award of attorneys fees for prosecuting his contempt motion. The nature and extent of a court’s legal authority to award attorneys fees in the civil contempt context warrants some discussion.
General Statutes § 46b-87 authorizes a court to award reasonable attorneys fees "when any person is found in contempt of an order of the Superior Court ..." The implication of this language is that a court lacks the legal authority under § 46b-87 to award attorneys fees absent a finding of contempt, i.e., absent a finding of a wilful violation of a court order. This implication is consistent with the view that an award of attorneys fees under § 46b-87 is punitive, rather than compensatory. Gil v. Gil, 110 Conn.App. 798, 807, 956 A.2d 593 (2008) (citing Esposito v. Esposito, 71 Conn. 744, 750, 804 A.2d 846 (2002)); see also Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997) ("Once a contempt has been found, § 46b-87 establishes a trial court’s power to sanction a noncomplying party through the award of attorneys fees") (emphasis in original).
In contrast to § 46b-87, General Statutes § 46b-62 authorizes a court to award attorneys fees in certain family matters absent a finding of contempt. Section 46b-62 provides in relevant part that "[i]n any proceeding seeking relief under the provisions of this chapter [pertaining to dissolution of marriage] ... the court may order either spouse ... to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82 ..." (Emphasis added.) General Statutes § 46b-62. In Dobozy, supra, the Supreme Court held that § 46b-62 authorized a trial court to award attorneys fees to a party who proved a violation of a child support order even though the obligor was not found in contempt. Dobozy v. Dobozy, 241 Conn. 499.
The alleged contemnor in Dobozy avoided a finding of contempt by satisfying his support obligation at the hearing on the contempt motion.
There is a third source of legal authority to award attorneys fees for the non-wilful violation of a court order: a Superior Court’s inherent power to enforce its own orders. To reiterate, in O’Brien v. O’Brien, the Supreme Court reaffirmed that this includes the power to award an injured party compensatory damages resulting from non-wilful violations of court orders. The question is whether "compensatory damages" includes attorneys fees. The Supreme Court’s decision in DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 471 A.2d 638 (1984), which the court repeatedly cited with approval in O’Brien, is instructive.
DeMartino involved a claim that the defendants violated an injunction which imposed certain restrictions on little league play at baseball fields in the Town of Monroe. The defendants relied on the advice of counsel in engaging in the activities that allegedly violated the injunction. The trial court nonetheless found that the defendants had violated the injunction, held them in civil contempt and ordered them to pay court costs and a reasonable attorneys fee.
On appeal, the defendants argued that the trial court’s remedy was punitive in nature and not justified based on a finding of civil contempt. The Supreme Court disagreed. "The trial court’s memorandum of decision indicates that it determined this was a civil contempt, and in fashioning its remedial order it was correctly concerned about compensating the plaintiffs for having been put to the expense of this proceeding because of the contumacious actions of both defendants. The trial court properly awarded the plaintiffs their court costs plus reasonable attorneys fees and, in doing so, confined its ‘compensation’ to them to their actual losses." (Emphasis added.) Id., 280.
Significantly, the Supreme Court also stated, "[t]he United States Supreme Court aptly has observed that the absence of wilfulness does not relieve from civil contempt ... Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act." Id., 279. Thus, although DeMartino involved an award of attorneys fees based on a finding of "civil contempt," it is evident from the Supreme Court’s decision that the trial court’s authority to award fees did not require a finding of wilful contempt. That is, the defendants’ advice of counsel defense did not negate their responsibility for violating a court order, i.e., the injunction.
The Connecticut Supreme Court cited McComb with approval in DeMartino v. Monroe Little League, Inc., supra, 192 Conn. 271, which discussed the differences between civil and criminal contempt and held that a party’s intent in violating a court order "does not relieve from civil contempt." (Internal quotation marks omitted.) Id., 279. Notwithstanding DeMartino, however, the Supreme Court began to describe wilfulness as a necessary element of civil contempt. E.g., Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998) ("In order to constitute contempt, a party’s conduct must be willful") (quoting Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983)). However, Connolly was decided one year before DeMartino and only mentioned wilfulness in passing. Connolly v. Connolly, supra, 191 Conn. 468. As noted above, the Supreme Court cited DeMartino with approval in O’Brien, supra, to support its holding that, even without a finding of civil contempt, a trial court has the authority to compensate a party for damages suffered as a result of another party’s violation of a court order. Although the Supreme Court did not formally abandon wilfulness as an element of civil contempt in O’Brien, the logic of the O’Brien decision strongly suggests that wilfulness should no longer be an element of civil contempt under Connecticut law. Of course, until the Supreme or Appellate Court so holds, Superior Courts are bound to require proof of wilfulness as an element of civil contempt. The court notes that Connecticut law is currently at odds with federal law on this issue, but it has not always been so. The United States Supreme Court has long held that wilfulness is not an element of civil contempt. "The absence of wilfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance ... Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act." (Citations omitted.) McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949). McComb remains the law in the federal courts, including the Second Circuit. See, e.g., Canterbury Belts Ltd. v. Lane Walker Rudkin, Ltd., 869 F.2d 34 (2d Cir. 1989) ("We note, however, that sanctions for civil contempt can be imposed without a finding of willfulness") (quoting McComb v. Jacksonville Paper Co., supra, 336 U.S. 191).
In short, DeMartino recognizes a Superior Court’s authority to award a reasonable attorneys fee as compensation for injuries resulting from a non-wilful violation of a court order. And the Supreme Court’s repeated citations in O’Brien to DeMartino confirm that the earlier decision remains not only valid but sound precedent.
Federal case law on this issue is conflicted. "While willfulness may not necessarily be a prerequisite to an award of fees and costs, a finding of willfulness strongly supports granting them." Weitzman v. Stein, 98 F.3d 717, 719 (2d Cir. 1996). Accord John Zink Co. v. Zink, 241 F.3d 1256, 1261 (10th Cir. 2001) (showing of willfulness not required in Second, Third, Fifth, Sixth, Seventh, Ninth, Eleventh, and District of Columbia Circuits). But see King v. Allied Vision Ltd., 65 F.3d 1051, 1063 (2d Cir. 1995) (holding, one year before Weitzman v. Stein, that "[i]n order to award fees, the district court had to find that [the defendant’s] contempt was willful"); N. Am. Oil Co. v. Star Brite Distrib., Inc., 14 F.App’x 73, 75 (2d Cir. 2001) (noting but declining to resolve apparent conflict between Weitzman and King).
Given the conflicting precedents, only the Connecticut Supreme Court can provide a definitive position on whether proof of wilfulness is a necessary requirement under Connecticut law for an award of attorney fees when a court exercises its inherent authority to remedy violations of court orders. Based on the weight of authority, however, this court adopts the Second Circuit’s view expressed in Weitzman v. Stein, 98 F.3d 719, to wit, wilfulness is a consideration weighing in favor of an award of attorneys fees, but it is not an absolute precondition to an award. This position seems most consistent with O’Brien and DeMartino.
D
Because the court did not find the plaintiff in wilful contempt for failing to pay the mortgage, only two of the three sources of authority for awarding attorneys fees are relevant in this case: General Statute § 46b-62 and the court’s inherent common-law power to enforce its orders. The court determines that both sources of authority support an award of attorneys fees to the defendant.
It is reasonable to ask whether § § 46b-62 and 46b-87 limit or constrain a Superior Court’s inherent powers as described above. The Supreme Court expressly declined to address this question in Dobozy v. Dobozy, 241 Conn. 494, and n.4. This court answers that question in the negative. Nothing in the text of either statute or their legislative histories suggests that the General Assembly intended to constrain the Superior Court’s ancient, common-law authority to enforce its own orders through the award of compensatory damages which, according to DeMartino, may include a reasonable attorneys fee.
First, given the court’s finding that the defendant suffered $1,120 in damages in the form of fees paid to Cohen and Wolf in the foreclosure action, failing to award the defendant a reasonable attorneys fee for the cost of prosecuting his contempt motion would undermine the court’s damages award; after paying his attorney for prosecuting that motion, the defendant would be left with nothing, making the damage award meaningless. Thus, a reasonable fee award is proper under § 46b-62. Pena v. Gladstone, 168 Conn.App. 141, 159, 144 A.3d 1085, 1096-97 (2016) (award of attorneys fees under § 46b-62 warranted when failure to award fees would undermine court’s other financial orders).
Second, acting pursuant to its inherent powers, the court determines that a reasonable attorneys fee should be awarded to the defendant as part of the compensation for damages resulting from the plaintiff’s failure to comply with the court order to pay the mortgage. DeMartino v. Monroe Little League, Inc., 192 Conn. 280. Although the court does not find a wilful violation, the court concludes that an award of attorneys fees is appropriate, indeed necessary, to fully compensate the defendant for his loss resulting from the plaintiff’s failure to pay the mortgage. Like the court’s reasons for awarding fees under § 46b-62, not awarding a reasonable attorneys fee would render the compensatory damages based on the Cohen & Wolf fees illusory.
E
The defendant introduced evidence that he incurred approximately $10,000 in attorneys fees to prosecute several motions heard simultaneously at the contempt hearing. He specifically requests an award of $5000 in fees for the motion at issue. The court denies that request. Instead, the court finds that a reasonable attorneys fee for the time spent prosecuting the present motion is $1,500. The plaintiff shall pay that sum to the defendant within 60 days of notice of this decision.
SO ORDERED.