Opinion
No. FA 09-4011001-S
March 30, 2011
MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT AND MOTION FOR SANCTIONS
The defendant, a self-represented party, brought this post-judgment motion for contempt (Docket No. 132.00) against the plaintiff, her former husband. The motion was scheduled to be heard by the court on January 10, 2011. The hearing was continued after the start of evidence because the defendant and a witness, Mikka Tracey, failed to produce documents in response to subpoenas duces tecum served upon them by the plaintiff in connection with the contempt hearing. The court ordered the defendant and the witness to produce all subpoenaed documents to the plaintiff's counsel by January 13, 2011 and continued the hearing until January 31, 2011.
On January 18, 2011, the plaintiff filed a motion for sanctions (Docket No. 134.00) against the defendant alleging that neither the defendant nor the witness had fully complied with the subpoenas as previously ordered by the court. The plaintiff's motion seeks sanctions against the defendant and an award of attorneys fees. The plaintiff also filed a motion for continuance seeking to continue the contempt hearing until such time as the defendant and the witness complied with the subpoenas duces tecum. The court granted the continuance. Thereafter, the hearing was held and concluded on March 7, 2011. Following the contempt hearing, the court heard argument on the plaintiff's motion for sanctions. The plaintiff subsequently filed an affidavit of attorneys fees (Docket No. 137.00) in support of the sanctions motion.
I. Motion for Contempt
"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 noncompliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001). "Noncompliance alone will not support a judgment of contempt." (Internal quotation marks omitted.) Prial v. Prial, 67 Conn.App. 7, 14, CT Page 8137 787 A.2d 50 (2001). "[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, 661 A.2d 621 (1995); Niles v. Niles, 9 Conn.App. 240, 253-54, 518 A.2d 932 (1986) (sufficient factual basis to explain plaintiff's failure to obey order). However, "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. Such court action, however, must be supported by competent evidence." (Internal citations omitted.) Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988); see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988) (although party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).
The marriage of the parties was dissolved by the court (Petroni, J.) on August 31, 2010. The parties entered into a marital settlement agreement which was incorporated into the judgment. In the settlement agreement, the parties agreed that each would be responsible for fifty (50%) of the qualified daycare expenses incurred for their minor son. The agreement provided further that "[t]he parties shall account to one another on a monthly basis for said expenses and any cost advances shall be reimbursed to the other parent on a monthly basis."
The defendant claims that the plaintiff acted in contempt of the court's order by failing to reimburse her for their son's daycare expenses as required by the divorce decree. At the time the motion for contempt was filed, the defendant sought reimbursement from the plaintiff of $562.50, one-half of the $1,125 she claimed to have paid for daycare services from September 1, 2010 through December 6, 2010. On the second day of the contempt hearing, the defendant amended her claim and sought reimbursement of $787.50 for daycare expenses through January 11, 2011. In response, the plaintiff contends that he was not required to reimburse the defendant because she had not actually paid for the daycare services as of the date the motion for contempt was filed. Both parties presented testimony and evidence to the court during the hearings.
The defendant testified that during the period from approximately September 1, 2010 through January 11, 2011 she made various payments to Tracey totaling $1,575 for daycare services provided on behalf of the parties' minor son. She testified further that she sought reimbursement from the plaintiff for half of the daycare expenses as provided in the marital settlement agreement but that the plaintiff refused to pay her. As a result of the plaintiff's refusal to pay, the defendant filed the instant motion for contempt.
The plaintiff testified that he did not reimburse the defendant because he did not believe that she had actually made any payments to Tracey for daycare services. The plaintiff testified further that he asked the defendant to supply him with copies of any cancelled checks made payable to Tracey but that the defendant refused to do so. The plaintiff contends that he is not in contempt of the divorce decree because he is only required to reimburse the defendant for daycare expenses actually paid by her and that the defendant had not paid Tracey for her services.
At the conclusion of the parties' testimony, the plaintiff called Tracey to testify. Tracey had been subpoenaed by the plaintiff and was sequestered during the parties' testimony. Tracey testified that she provided daycare services to the parties' minor son and that the defendant agreed to pay her for those services at the rate of $25 an hour. Tracey testified further that she knew the defendant was having financial difficulties so she agreed not to receive payment for the daycare services she provided until after the defendant refinanced her house. Consequently, Tracey testified, she did not actually receive any payments from the defendant until January 2011, shortly after the defendant's house refinancing had closed. According to Tracey, the defendant would write the checks to Tracey at or about the time the daycare services were provided, but the defendant kept those checks in her possession and did not deliver them to Tracey until sometime in early January 2011 whereupon Tracey deposited the checks into her bank account.
Tracey's January 2011 bank statement and copies of eighteen cancelled checks were introduced into evidence. An examination of these records reveals that each check was dated during the period from September 1, 2010 through January 11, 2011; however, seventeen checks totaling $1450 were deposited in Tracey's bank account on January 5, 2011 and one check in the amount of $25 was deposited on January 13, 2011, for a total amount made payable to and deposited in Tracey's bank account of $1,475.
No evidence was introduced to account for the discrepancy between the amount the defendant claimed she paid Tracey ($1,575) and the amount Tracey claimed she was paid ($1,475).
Based upon the foregoing facts, and upon all of the credible evidence before the court, the court finds that the defendant has not established by a fair preponderance of the evidence that the plaintiff willfully disobeyed the court's orders. To the contrary, the evidence establishes that as of December 7, 2010, the date the defendant filed the contempt motion, the plaintiff was under no obligation to reimburse the defendant for daycare expenses because the defendant had not actually paid for those daycare services during the period from September 1, 2010 through December 7, 2010. Rather, the court finds that the defendant did not pay Tracey until January 2011, several weeks after the contempt motion was filed.
The court's analysis does not end with this finding however. As noted above, the evidence in this case establishes that although the defendant did not pay Tracey for daycare services during 2010, she did pay Tracey $1,475 in early January 2011. Accordingly, and consistent with the terms of the divorce decree, the court hereby exercises its discretionary authority and finds that the plaintiff is required to reimburse the defendant in the amount of $737.50 which is one-half of the daycare expenses paid by the defendant to Tracey in January 2011.
In cases where no contempt is found, Conn. Gen. Stat. § 46b-87 allows the court to award attorneys fees to the respondent to cover the cost of defending against the contempt motion. "The award of attorneys fees in contempt proceedings is within the discretion of the court . . . In making its determination, the court is allowed to rely on its familiarity of the legal issues involved. Indeed, it is expected that the court will bring its experience and legal expertise to the determination of the reasonableness of attorneys fees . . . Moreover, because the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the defendant's behavior as an additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award." (Citations omitted; emphasis added.) Esposito v. Esposito, 71 Conn.App. 744, 748-50, 804 A.2d 846 (2002). See also Kravetz v. Kravetz, 126 Conn.App. 459, 471-72 (2011) (trial court did not abuse its discretion in awarding attorneys fees where the plaintiff was the prevailing party with respect to the defendant's motion for contempt).
The court finds that an award of attorneys fees in favor of the plaintiff is warranted in this case. As noted above, the plaintiff is the prevailing party in this contempt proceeding. Of greater significance, however, is the defendant's conduct in these proceedings. First, the defendant failed to comply with a duly served subpoena duces tecum in connection with the January 13, 2011 contempt hearing which forced a continuance of the hearing to a second day. Subsequently, the defendant failed to comply with this court's order to produce all subpoenaed documents to the plaintiff's counsel by January 13, 2011. Finally, the defendant filed the instant motion for contempt without good cause and thereafter testified at the contempt hearing that she paid for daycare services prior to the filing of the motion for contempt when in fact she had not.
The plaintiff filed an affidavit of fees evidencing that his counsel expended 3.0 hours in connection with the truncated January 10, 2011 hearing and that her billing rate is $250 per hour. The court finds that the hourly rate is fair and reasonable and that the time devoted to the referenced matter is appropriate. The court further finds that but for the conduct of the defendant in failing to respond to a duly served subpoena duces tecum, the plaintiff would not have incurred these fees.
II. Motion for Sanctions
Turning next to the plaintiff's motion for sanctions, the plaintiff's request that the defendant be ordered to comply fully with the subpoena duces tecum served upon her in connection with the contempt hearing is moot. The subpoenaed documents were produced by the defendant at the March 7, 2011 hearing. With respect to the plaintiff's request for an award of attorneys fees for prosecuting the motion for sanctions, the court finds that the defendant's conduct has been addressed adequately by the court's order awarding attorneys fees to the plaintiff in connection with the defendant's motion for contempt.
III. Orders
Accordingly, the court hereby orders that:
1. The defendant's motion for contempt against the plaintiff (Docket No. 132.00) is denied.
2. The plaintiff shall pay to the defendant the sum of $737.50 for daycare expenses in accordance with the divorce decree, such payment to be made on or before April 29, 2011.
3. The defendant shall pay to the plaintiff the sum of $750 for attorneys fees pursuant to Conn. Gen. Stat. § 46b-87, such payment to be made on or before April 29, 2011.
4. The plaintiff's motion for sanctions against the defendant (Docket No. 137.00) is denied.
SO ORDERED.