Opinion
No. FA 07-4032327
December 3, 2009
CORRECTED MEMORANDUM OF DECISION
I BACKGROUND
The plaintiff, Janet Perri, has filed several motions for contempt after the parties' marriage was dissolved by agreement in 2008. See Separation and Property Distribution Agreement, dated February 26, 2008 (Dissolution Agreement). The defendant has previously been found in contempt by the court (Abery-Wetstone, J.), on June 10, 2009, for making derogatory comments directed to the plaintiff in writing, in violation of the dissolution agreement. As a result of this finding of contempt, the defendant was ordered to pay attorneys fees in the amount of $300.
A subsequent motion for contempt, No. 133, was filed on August 5, 2009, claiming the same violation, as well as additional violations of financial and other court orders. The parties appeared in court on September 1, 2009 for a hearing on this new contempt; however, all motions were continued for three weeks by agreement, during which time the defendant was to provide, inter alia, financial information one week in advance of the next court date. On September 17, 2009, plaintiff filed another motion for contempt, No. 137, for the defendant's failure to comply with the September 1, 2009 agreement to provide financial information. On September 22, 2009 the plaintiff's motion for contempt, No. 133, as well as her motion to modify, No. 134, were continued for one week by agreement, and as ordered by the court, Fischer, J., with the plaintiff reserving the right to retroactivity and attorneys fees. On September 29, 2009, the parties reached a partial agreement on several financial matters, as ordered by the court, Fischer, J., and the case was continued until November 5, 2009, with the plaintiff, again, reserving the right to seek attorneys fees.
Subsequent to the September 29, 2009 agreement, the plaintiff filed an additional motion for contempt on October 29, 2009, No. 150, alleging violations of the September 29, 2009 agreement. The defendant has also filed a motion for contempt, No. 139, alleging the plaintiff's violation of the dissolution agreement's requirement that she pay one-half of reasonably agreed upon extracurricular activities. A hearing was held regarding these matters on November 5, 2009.
II DISCUSSION AND FINIJINGS A. Contempt
Connecticut procedure authorizes motions for contempt. See Practice Book § 25-27. "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 . . . Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt because the contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court." (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). "To constitute contempt a parties' conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt." (Citation omitted; internal quotation marks omitted.) Detels v. Detels, 79 Conn.App. 467, 470, 830 A.2d 381 (2003). "The burden of establishing a prima facie showing of contempt . . . falls upon the [moving party]." (Footnote omitted; external citation omitted.) Lawson v. Lawson, Superior Court, judicial district of New Haven at New Haven, Docket No. FA00 0434443 (February 14, 2006, Dewey J.).
B. Findings
Based upon these legal standards, and as applied to the facts found by the court in this case, neither party is found to be in willful contempt of court orders. The court nonetheless finds the defendant to have been in repeated violation of many court orders. These violations include Section 2 of the dissolution agreement, prohibiting negative or derogatory comments in communications between the parties, which are limited to e-mails and text messages by order of the court, due to a history of derogatory communications made to the plaintiff by the defendant. These violations were egregious and occurred in text messages while a similar motion for contempt was pending. These derogatory communications also continued several days after a finding of contempt was made by the court, Abery-Wetstone, J., requiring this additional motion for contempt. These derogatory communications have, however, entirely discontinued, in part because further text messages from the defendant have been blocked by the plaintiff after consulting with her attorney.
The court further finds the defendant to have been in repeated noncompliance with other court orders. The court finds he has been noncompliant with paragraphs one, two and three of the September 29, 2009 order of the court, Fischer, J., by his 1) untimely payment of an order to pay a child support arrearage of $1,800 by October 29, 2009; 2) untimely payment of an order to pay a health insurance contribution arrearage of $1,317 by October 15, 2009; and 3) untimely delivery of his 2008 tax return by the same date. In addition, the court finds the defendant to be in violation of a longstanding order to provide timely financial affidavits and "appropriate back up documentation for same," upon notification of a claim for child support. See Dissolution Agreement at p. 10. Although the court finds the "backup documentation" provision is not specific, the defendant nonetheless failed to provide a financial affidavit for approximately two months after the plaintiff filed a motion to modify child support, No. 134, on August 5, 2009, while several court appearances were continued, in part, for this reason. In fact, for back-up documentation to support the financial affidavit, the defendant provided his 2008 tax return on the eve of this hearing, requiring additional time to prepare for an efficacious hearing on the pending matter of support. The court notes that the return was signed on October 15, 2009 and provided to the plaintiff on November 4, 2009.
The court finds these orders generally relate back to the dissolution agreement and the provision for the payment of attorneys fees.
The defendant is also in violation of section six of the dissolution agreement, requiring that he pay half of the minor children's unreimbursed medical expenses within fourteen days. Unreimbursed medical expenses were presented to the defendant in late September and remain unpaid in violation of the court order. However, upon a review of the plaintiff's "Memo on Perri Bills," summarizing expenses and copies of bills presented to the defendant in Exhibit 3, the court finds this compilation to be unclear, and in some cases unjustified. The correlation between many of the expenses listed on the Memo on Perri Bills and the underlying documentation of bills and checks presented is difficult to determine. For example, in many instances, the amounts due and dates of the invoices and checks do not correlate and the bills are not always sequential. In addition, bills presented include claims prior to the date of dissolution, not incorporated into the final judgment. The bills presented also included the cost of gym memberships, confirmation classes, school photos and other expenses which may or may not be related to extracurricular activities, but which are not the subject of this motion. Although the court finds that many of the claims for medical expense reimbursement are clearly documented, the plaintiff's demand for $547.32, or one-half of the expenses claimed, was unclear and was not fully justified.
The plaintiff additionally claims the defendant violated an order that he file his 2006 and 2007 state and federal tax returns in a timely manner and to hold the plaintiff harmless for any liability on those returns. See Dissolution Agreement p. 18. The court finds the defendant in violation of this order. The result of his noncompliance was an IRS intercept of $1,685.90 in finds otherwise due to the plaintiff, who is now awaiting reimbursement pursuant to an innocent spousal claim. If the plaintiff has not received the full amount of $1,685.90 by February 1, 2010, she must notify the defendant, who is ordered to immediately reimburse her for any amount due at that time, in part or in whole. In the event the plaintiff receives an additional reimbursement from the government, subsequent to being made whole by the defendant, she shall immediately reimburse him for any overpayment she has received from either source.
Although the court finds that insufficient evidence has been presented to show the defendant's violations constitute willful and intentional violations of court orders, "[i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with the court order." (Emphasis in the original; citation omitted; internal quotation marks omitted.) Clement v. Clement, 34, Conn.App. 641, 647, 643 A.2d 874 (1994). The defendant is therefore ordered to pay half of the unreimbursed medical expenses presented to him at the September 29 and November 5, 2009 hearings within 14 days, exclusive of expenses prior to the dissolution, expenses not related to medical or dental expenses and claims not supported by documentation provided by the plaintiff. If the defendant fails to pay a bill claimed or presented by the plaintiff, he shall specifically state in writing the reason for his refusal to pay within the same fourteen-day period.
The defendant counters that the plaintiff is in violation of section 4 of the dissolution agreement concerning extracurricular activities, in that she has unreasonably withheld her consent concerning approval of activities and the payment of related costs. There was no evidence of written agreements between the parties concerning extracurricular activities, as required by the extracurricular activities order. Although not specifically required by order of the court, there was no written evidence of proposals concerning extracurricular activities made or rejected by the parties. Therefore, the court has insufficient evidence to determine whether consent was or was not unreasonably withheld by the plaintiff. Further, it is important to note that the court precluded a hearing on the plaintiff's claims for costs associated with extracurricular activities because no motion for contempt had been filed by her on this subject. Therefore, based upon the testimony presented, the court has insufficient evidence to determine whether the costs of extracurricular activities undertaken to date by the minor children and paid for by either party, have been agreed upon, unjustifiably refused, or nonetheless divided equally by the parties.
C. Attorneys Fees
Due to the defendant's repeated violations of court orders, the plaintiff seeks attorneys fees, based upon section 13 of the dissolution agreement, requiring attorneys fees and costs upon a finding of noncompliance with the terms of the agreement. The specifically negotiated and edited language of the agreement is as follows: "Each party shall pay his or her own legal fees in connection with this action. If either party [fails or refuses] is found to have failed to comply with the terms of this agreement, necessitating a return of this matter to court by the other party, the [non-complying] party [shall be responsible for all] bringing the matter to court shall be entitled to claim attorneys fees and costs of the party who [was required to seek relief from the court] was found to have failed to comply." (Bracketed language was removed from the original document and italicized language was handwritten and initialed by the parties.) In support of her claim for attorneys fees, the plaintiff presented an itemized bill of $5,506.25 in attorneys fees and $315.80 in costs, totaling $5,822.05.
In a contempt proceeding brought to enforce dissolution orders, General Statutes § 46b-87 provides in relevant part that, a trial court "may award to the petitioner a reasonable attorneys fee . . . to be paid by the person found in contempt." Once a contempt has been found, § 46b-87 establishes a trial court's power to sanction a non complying party through the award of attorneys fees. See Ullmann v. State, 230 Conn. 698, 709, 647 A.2d 324 (1994). Furthermore, pursuant to § 46b-87, that sanction may be imposed without balancing the parties' respective financial abilities.
In contrast, for purposes of an action brought to enforce trial court orders, and absent a finding of contempt, General Statute § 46b-62 empowers a trial court to award attorneys fees to make a financially disadvantaged party whole for pursuing a legitimate legal claim. Dobozy v. Dobozy, 241 Conn. 490, 497-99, 697 A.2d 1117 (1997). In Dobozy, the Supreme Court held that it would not "preclude a financially disadvantaged parent from recovering attorneys fees from a recurrently recalcitrant former spouse [who] complies with family support orders at, or immediately prior to, the time of the contempt proceeding and persuades the trial court that his compliance, although belated, militates against a finding of contempt. In effect, it would give considerable leverage to the recalcitrant former spouse to undermine the effectiveness of court orders for the protection of children." Id. at 48. However, our courts have held that under Dobozy and the compensatory authority of General Statutes § 46b-62, an award of attorneys fees must be reasonable and subject to an ability to pay and the court may not exercise this compensatory power without first ascertaining that the prospective recipient lacks funds sufficient to cover the cost of his or her legal expenses. Blake v. Blake, 211 Conn. 485, 488-89, 560 A.2d 396 (1989).
The court finds that neither the standard of § 46b-62 nor that of § 46b-87 specifically apply under the language of the dissolution agreement. Instead, a fair reading of the provision is that noncompliance with the dissolution agreement results in a claim for attorneys fees, which inherently penalizes the party found noncompliant, although the court is not exercising its contempt authority under § 46b-87, as no contempt has been established by the evidence presented in this case. Similarly, because the court is not exercising its authority under § 46b-62, a hearing on the defendant's ability to pay is not necessarily warranted, based upon the court's interpretation of the language of the dissolution agreement.
The defendant's repeated and delayed disclosure of financial information has precluded a timely hearing on this issue. Nonetheless, the violations of the dissolution agreement, to which the attorneys fee provision attaches, includes continued derogatory comments made to the plaintiff and repeated delay of financial information, requiring additional motions and court hearings, resulting in substantial attorneys fees and costs.
The amended language of the agreement entitles a party to "claim attorneys fees." Specific language was removed from the agreement making the noncompliant party "responsible for all" attorneys fees. Instead, the court finds it must exercise its discretion and determine the award of attorneys fees based upon 1) those fees and costs reasonably related to ensure compliance with court orders, and 2) to so penalize the recalcitrant party, as determined by the court under the facts and circumstances of the "claim" for attorneys fees.
In this case, the court has sufficient evidence to determine the basis for penalizing the defendant for his repeated noncompliance with the dissolution agreement and related orders of the court, requiring multiple court appearances and time for preparation. Further, there is sufficient evidence for the court to determine the reasonableness of the plaintiff's claim of attorneys fees, as they relate to the need for these proceedings, by introducing into evidence an affidavit of attorneys fees. The court therefore awards $4,000 in attorneys fees and $315.80 in costs, totaling $4,315.80. $828.95 shall be paid to the plaintiff's attorney on or before December 1, 2009, followed by monthly payments of $871.71 on the first of each month thereafter until fully paid.
This last sentence, involving the calculation of monthly payments, was corrected based upon a motion for clarification, which was granted by the court.
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