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Brochard v. Brochard

Court of Appeals of Connecticut

May 24, 2016


          Argued February 9, 2016

         Appeal from Superior Court, judicial district of New Haven, Regional Family Trial Docket, Gordon, J. [dissolution judgment]; Gould, J. [motion for contempt, motion to reargue].)

          Britt Brochard, self-represented, the appellant (defendant)

          Thomas Brochard, self-represented, the appellee (plaintiff).

          Beach, Keller and West, Js.


          WEST, J.

         The defendant, Britt Brochard, appeals from the postdissolution judgment of the trial court denying her motion for contempt. In her motion for contempt, the defendant claimed, inter alia, that the plaintiff, Thomas Brochard, had failed to provide her with an authorization form in compliance with the order of the court, Gordon, J. The defendant claims that the court, Gould, J., denied her motion based on the incorrect belief that it had already been ruled on. We reverse the judgment of the trial court.

         The record reveals the following relevant facts and procedural history. In a memorandum of decision dated July 6, 2011, the court, Gordon, J., dissolved the parties’ marriage. In doing so, it set forth the following facts. The parties were married on August 27, 1995, in Ridge-field. They have two children. The plaintiff instituted the divorce action in 2008 following the parties’ separation. The court found their marriage had irretrievably broken down. The court issued a number of orders, ruling that the plaintiff, who was employed, would pay alimony to the defendant, who was a homemaker. It ordered that the defendant would be awarded all right, title, and interest in the marital home and would be responsible for all costs associated with the home.

         On July 20, 2011, the defendant filed a postjudgment motion for an order, alleging that the plaintiff had not made payments on the mortgage on the family home since March, 2011. The mortgage was solely in his name. The defendant requested that ‘‘the plaintiff be required to bring the mortgage current, including all attorney’s fees and other charges. In the alternative, the defendant moves that the plaintiff be required to immediately provide the bank with authorization to speak directly to the defendant, timely file all necessary paperwork in the foreclosure action to allow the parties to participate in the foreclosure mediation, that the plaintiff attend the foreclosure mediation sessions along with the defendant, and that the plaintiff agree to any resolution the defendant comes to with the bank.’’

         Judge Gordon held a hearing on the defendant’s motion for an order on August 12, 2011.[1] At the hearing, the plaintiff’s attorney presented an authorization, claiming that the proffered authorization would satisfy the defendant’s motion. The court ruled that in order to effectuate a modification of the mortgage, the authorization ‘‘has to say more than converse and negotiate. It has to say that she’s his authorized agent for conversing, negotiating, entering into an agreement, all that kind of stuff. I mean, they’re not going to let her-they-I mean, it’s got to be specific that she has the authority . . . .’’[2]

         On November 13, 2013, the defendant filed a motion for contempt, claiming that the plaintiff had violated Judge Gordon’s August 12, 2011 order by, inter alia, failing ‘‘to execute an authorization allowing the defendant to speak with and represent the plaintiff with the mortgage loan holder, Wells Fargo, as the mortgage has been in the name of the plaintiff solely; said authorization to make [the] defendant the plaintiff’s ‘authorized agent for conversing, negotiating, entering into an agreement, all that kind of stuff’ with Wells Fargo to modify the mortgage loan to avoid foreclosure. Said authorization was ‘to be specific that she has the authority.’ ’’

         The defendant’s motion for contempt was heard by the court, Munro, J., on November 14, 2013. Judge Munro examined an authorization agreement drafted by the defendant’s attorney and asked if the plaintiff consented to it. The plaintiff’s attorney replied that he did not, due to language that stated that the defendant would ‘‘have full and complete authority to negotiate, agree and execute proposed settlements with said mortgages.’’ The plaintiff was concerned that this language would permit the defendant to extend the term of the mortgage, thereby further tying up his ability to obtain a new mortgage for a house of his own. The court subsequently told the defendant that ‘‘if he signs something that allows you to negotiate, it should not be something that puts him on the hook for any more liability than he has now. Do you understand that?’’ The defendant replied that she believed that the intent of Judge Gordon’s order was to allow modification of the loan, and that Judge Munro should consult the full transcript containing Judge Gordon’s order. Thereupon, Judge Munro stated: ‘‘I’m going to stop. I hear you. This is a complicated problem. It’s not going to be dealt with on short calendar with an audience full of people waiting. I’m going to give you a three day hearing, and this will be rolled into the three day hearing.’’ Following the short calendar hearing, on November 26, 2013, the plaintiff filed an objection to the defendant’s motion for contempt, attaching an authorization form and asserting that ‘‘Judge Munro has already told the defendant that Judge Gordon did not intend that the defendant could expand the plaintiff’s exposure under the new mortgage.’’

         The case subsequently was transferred to the regional family trial docket. At a hearing on February 6, 2014, regarding the transfer, Judge Munro asked, ‘‘[a]ll right, and the motions I sent to regional are motions regarding modification of custody. Any financial motions at all?’’ The defendant replied: ‘‘A number of financial motions, there’s a motion outstanding for contempt on not paying half the children’s expenses; contempt on medical expenses; contempt on alimony; [and] contempt on not signing the authorization for me to be able to modify the home.’’ Judge Munro stated, ‘‘I remember that.’’ The parties then began discussing the plaintiff’s financial disclosure and did not mention the contempt motions further.

         The court, Gould, J., held a hearing on various matters on June 10, 2014. After concluding the custody and visitation portion of the hearing, Judge Gould indicated that he intended to turn to financial issues. The defendant stated that she wished to proceed to the authorization issue. The plaintiff objected stating that he needed a few days to prepare. Judge Gould queried whether the authorization issue was before him or in the foreclosure court. The defendant replied that it was before him, after which Judge Gould stated that they would proceed with outstanding motions on financial issues at a later date.

         The defendant filed a motion for an emergency hearing on August 1, 2014, in which she asserted that the court never returned to the authorization issue. This motion was heard by Judge Gould on September 11, 2014. Judge Gould stated that it was his understanding that there was a ruling that the authorization did not have to be provided.[3] The defendant protested that Judge Munro’s ruling indicated otherwise. Judge Gould then stated, ‘‘I’m not indicating [Judge Munro] ruled on [the authorization]. I’m indicating it was ruled on previously; it did not have to be provided.’’

         The defendant filed a motion to reargue on October 3, 2014, [4] asserting that Judge Gould’s ruling of September 11, 2014, was based on a misapprehension of fact. She contended that Judge Gould incorrectly believed that the motion for contempt regarding the authorization had previously been ruled on. She attached an order from the foreclosure court, Ecker, J., extending the sale date and noting that ‘‘the record in this matter does not indicate that [the plaintiff] has made any efforts whatsoever in this proceeding to resist foreclosure or assist his ex-spouse’s ongoing attempts to save the home through mediation or negotiation.’’

         Judge Gould considered the defendant’s motion to reargue on November 6, 2014. He stated that ‘‘[t]his court said there was a prior ruling the authorization for modification of the mortgage would not have to be provided, and I have a specific recollection for issuing that order.’’ The plaintiff asserted that the issue had been decided by three judges, and offered to quote from Judge Munro; Judge Gould told the plaintiff’s attorney, ‘‘[y]ou don’t have to . . . I recall this specifically.’’ The defendant asserted that the transcripts demonstrated that the issue had not been ruled on. The plaintiff quoted the statement by Judge Munro that the plaintiff should not be on the hook for more liability. Judge Gould then denied the defendant’s motion to reargue with prejudice, noting that she could take an appeal if she chose.

         The defendant filed the present appeal on November 24, 2014. She claims two grounds, but the essence of both is that Judge Gould’s ruling on the motion for contempt for the plaintiff’s failure to provide an authorization was an abuse of discretion because it was based on an incorrect understanding of the procedural history. In response, the plaintiff asserts that Judge Munro’s statements at the November 14, 2013 hearing constituted a denial of the defendant’s motion. Prior to oral argument before this court, on October 19, 2015, the defendant filed an amended appeal form amending the appeal to include a decision by Judge Gould from September 28, 2015.

         The September 28, 2015 memorandum of decision recounts that hearings on a number of postjudgment motions were held on June 3, 4, and 10, 2014, and April 20, 21, and 22, 2015. Among other issues, it discusses the defendant’s motion for contempt from November 13, 2013, stating that the motion claimed that the plaintiff was in contempt because ‘‘the plaintiff was ordered to bring the outstanding mortgage on the family home, where the defendant resides with the two children, current from March, 2011 through July, 2011, that the plaintiff would be responsible for any attorney’s fees, interest and/or penalties relating to foreclosure actions on the subject home, that the plaintiff was ordered to execute an authorization permitting the defendant to speak with the mortgage loan holder, and that the plaintiff was to provide the defendant with any and all communications received from the bank.’’ (Emphasis added.) The decision does not reference the statements by Judge Gordon related to the authorization, but it does state that the plaintiff alleged that ‘‘the court, Munro, J., has previously ordered that the plaintiff did not have the duty to agree to a mortgage modification that would substantially increase the length of indebtedness to the bank.’’ It also states that ‘‘[i]n his objection, the plaintiff further alleges and provides evidence of a September 1, 2011 letter from his attorney to the defendant [that] enclosed the requested authorization referred to above, and further alleging that the defendant has been directly and actively dealing with the lender since September, 2011.’’ The decision concludes that ‘‘the recitation of the court’s orders and findings made by the plaintiff to be accurate. The undersigned also finds that the plaintiff provided the subject authorization to the defendant.’’ The court then denied the motion for contempt.[5]

         At oral argument before this court on February 9, 2016, the parties discussed the impact of the September 28, 2015 decision. The defendant maintained that Judge Gould had not provided her with a chance to argue her case before issuing the decision.[6] She conceded, however, that she had not filed transcripts of subsequent hearings, which would demonstrate that she was not afforded an opportunity to argue her position. The plaintiff asserted that the September 28, 2015 decision was based on Judge Munro’s decision. The plaintiff did not claim, despite this court’s questioning of the defendant, that a hearing had been held between November 6, 2014 and September 28, 2015, at which both parties were given sufficient opportunity to be heard regarding the authorization issue.

         The defendant claims that Judge Gould abused his discretion when he determined that the authorization issue raised by the defendant’s motion for contempt was already decided, and when he purported to decide the issue in his September 28, 2015 memorandum of decision. We agree.

         We begin by setting forth our standard of review and the relevant legal principles. ‘‘Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.’’ (Internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). Our Supreme Court recently clarified that we should utilize a two step inquiry when analyzing a judgment of contempt: ‘‘First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.’’ (Citations omitted.) Id., 693–94. ‘‘A finding of . . . contempt [occurring outside the presence of the court] must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony. . . . A trial-like hearing should be held ...

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