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Brody v. Brody

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

August 11, 2015

Felicia Pierot Brody
v.
Cary Brody

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT FOR NONPAYMENT OF CHILD SUPPORT, POSTJUDGMENT

Erika M. Tindill, J.

The Plaintiff's Motion for Contempt for Non-Payment of Child Support, Post Judgment (#631) was filed on June 24, 2015 and came before the Court on the July 27, 2015 short calendar. The Defendant appeared in court at approximately 4:15 p.m. on that day and the Court did not have sufficient time to conduct the hearing. The matter was rescheduled for an evidentiary hearing.

Both parties were present and represented by counsel at the hearing held on July 29, 2015. The Court has considered the testimony of both parties, reviewed and considered relevant case law and statutory provisions, and has taken into account the argument of counsel to make its findings.

Ironically, it was an appeal to the Connecticut Supreme Court brought by this Defendant that established the three-pronged determination required of the Court in deciding contempt motions. See Brody v. Brody, 315 Conn. 300, 105 A.3d 887 (2015).

1. The Existence of Clear Court Orders

The Plaintiff has met her burden of proving that a clear and concise court order existed. At the hearing, the Court took judicial notice of the March 12, 2010 memorandum of decision (J. Munro) and the parties' April 6, 2015 " terms agreement" which was approved and made a court order (J. Novack) on April 9, 2015. The April 9, 2015 order purported to resolve all outstanding issues between the parties and is relevant to the instant motion in that it set forth a number of conditions precedent to a decrease in the Defendant's child support obligation from $7, 500 to $5, 750 per month.

2. Violation of Court Orders

The conditions precedent in the April 9, 2015 order--namely the provision of documents by the Defendant regarding the Sovereign Hybrid fund and the Knapp Road, LLC net operating losses (NOLs), [1] the delivery by April 19, 2015 of a quitclaim deed to the 106 Husted Lane, Greenwich property to the Plaintiff, [2] and the payment to the Plaintiff of $960, 000 by the Defendant[3] by May 9, 2015--did not occur. While there is some dispute regarding the execution of the prefatory paragraph, it is undisputed that the quitclaim deed was not delivered and the $960, 000 was not paid to the Plaintiff. Paragraph 7 of the April 9, 2015 order reducing the Defendant's monthly child support payment, therefore, did not come into effect. The Plaintiff has met her burden of proving that the Defendant's failure to continue paying child support in the amount of $7, 500 per month violated the court order. The Defendant testified (and the Plaintiff's testimony corroborated) that he paid $7, 500 in child support for the month of April 2015 and $5, 750 for May, June, and July 2015. The Court finds this to be a violation of the March 12, 2010 court order.[4]

3. Willfulness

Based on the Defendant's own testimony, the Court finds he was aware that the March 12, 2010 order required him to pay $7, 500 per month for child support, and that he had the ability to pay. It is well-established, however, that non-compliance alone is not sufficient to find willful contempt.[5] The Court is required to consider the surrounding circumstances in order to determine the willfulness of the Defendant's violation.[6] In this case, the Defendant believed that he had complied by providing the documentation referred to in the prefatory paragraph of the parties' April 9, 2015 terms agreement. The Plaintiff failed to confirm or refute his compliance by not responding until May 21, 2015, when she filed (pursuant to paragraph 14 of the agreement) a demand for binding arbitration.[7] However, if the Defendant believed he complied, the Court is left to wonder what prevented him from performing in accordance with paragraphs 1 and 5.[8] Even if the Court believes that the Plaintiff refused to respond to the Defendant's request for confirmation of compliance, the fact remains that the Defendant 1) failed to deliver the quitclaim deed that he testified he signed on April 7, 2015 and gave to his attorney, and 2) failed to pay the Plaintiff the $960, 000, both of which were required in order to trigger paragraph 7 (the reduction of his child support obligation). This constitutes clear and convincing evidence of willfulness on the part of the Defendant. He could have, for example, tendered the quitclaim deed[9] and put the $960, 000 in escrow as a showing of good faith. The Court finds that the Defendant's violation of the March 12, 2010 order was willful.

ORDERS AND FINDINGS

1. The Defendant is found to be in willful contempt of order #4 of the March 12, 2010 memorandum of decision (J. Munro).

2. The Court finds a child support arrearage in the amount of $5, 250 as of July 29, 2015.

3. The Defendant is ordered to pay $5, 250, plus any amount short of $7, 500 he paid to the Plaintiff for the month of August for child support, within ...


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