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Becue v. Becue

Court of Appeals of Connecticut

November 6, 2018

JULIE BECUE
v.
MARK BECUE

          Argued May 29, 2018

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Hon. Stanley Novack, judge trial referee; judgment dissolving the marriage and granting certain other relief; thereafter, the court, Shay, J., granted the plaintiff's motion for order and motions for attorney's fees, denied the plaintiff's motions for contempt, granted the defendant's motion for modification, and denied the defendant's motions for contempt, motions for attorney's fees, motions for order, and motions to compel; subsequently, the court, Hon. Michael E. Shay, judge trial referee, issued a corrected memorandum of decision, and the defendant appealed and the plaintiff cross appealed to this court; thereafter, the court, Hon. Michael E. Shay, judge trial referee, granted the defendant's motion for articulation. Reversed in part; further proceedings.

          John H. Van Lenten, for the appellant-cross appellee (defendant).

          Richard W. Callahan, for the appellee-cross appellant (plaintiff).

          Alvord, Prescott and Pellegrino, Js.

          OPINION

          PELLEGRINO, J.

         In this post dissolution matter, the defendant, Mark Becue, appeals from the judgment of the trial court, resolving several of the parties' post judgment motions. The defendant claims that the court improperly: (1) determined the amount of his child support and his arrearage obligations due to four specific errors; (2) ordered him to pay $50, 000 toward the attorney's fees of the plaintiff, Julie Becue; (3) declined to hold the plaintiff in contempt; and (4) held him in contempt for failing to make certain child support payments. The plaintiff, Julie Becue, cross appeals from the court's judgment. Specifically, she claims that the court erred when it denied her motion for contempt, number 157, in which she alleged that the defendant improperly had engaged in self help by repeatedly modifying or withholding his child support payments. We disagree with all of the defendant's claims, and we agree with the claim raised in the plaintiff's cross appeal. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

         The following procedural history, although complicated, is relevant. The court dissolved the parties' marriage on March 16, 2010. At that time, the parties had three minor children, the oldest of whom was eleven. The court found that the parties' marriage had broken down irretrievably, and it accepted, as fair and equitable, the parties' written separation agreement and parenting plan (agreement), which the court incorporated by reference into the dissolution judgment. The agreement provided that the parties would share joint legal and physical custody of their minor children and that the defendant would pay to the plaintiff $260 per week in child support, which the court recognized was a deviation from the presumptive amount of $451 as calculated using the child support guidelines.[1] The court also found that this deviation would not negatively impact the children.[2]

         Approximately two years later, the parties began to file a seemingly endless stream of motions. On February 2, 2012, the plaintiff filed a postjudgment motion for contempt, number 157, alleging that, as of January 1, 2012, the defendant had failed to comply with the court's order that he pay $260 per week in child support. The plaintiff also filed a motion for attorney's fees, number 158, on the same date.

         On February 7, 2012, the defendant filed a motion for modification, number 159.01, on the ground that there had been a substantial change in circumstances. He alleged that he no longer was employed at the rate of $205, 000 per year, and, in accordance with paragraph 5.1 of the parties' agreement; see footnote 1 of this opinion; he, therefore, was not required to pay child support. The defendant also sought, inter alia, to have the plaintiff pay child support to him.[3]

         On April 5, 2012, the defendant filed a motion for contempt, number 166, on the ground that the plaintiff had violated the parenting plan contained in the parties' agreement, and, on April 17, 2012, he filed a motion, number 169, for attorney's fees. On July 19, 2012, the defendant filed three additional motions for contempt, numbers 181, 182, and 183, on the ground that the plaintiff had violated the parenting plan contained in the parties' agreement, and that she had failed to provide an itemized accounting. On August 3, 2012, the defendant filed another motion for contempt, number 190, on the ground that the plaintiff was in violation of the parenting plan. Also on August 3, 2012, the plaintiff filed a motion for contempt, number 188, on the ground that the defendant had failed to comply with discovery, and a motion for order, number 189, requesting that the court set the percentages that the parties must pay for the children's summer camp.

         On January 25, 2013, the defendant filed a motion for order, number 193, requesting that the court grant to him the final authority on all major decisions affecting the minor children. On April 30, 2013, the defendant filed three additional motions for order, numbers 194, 195, and 196, requesting that the court order the plaintiff to sign authorizations for the defendant to obtain several years of her federal and state tax returns. On May 31, 2013, the defendant filed another motion for contempt, number 197, on the ground that the plaintiff again had violated the parenting plan contained in the parties' agreement.[4] On November 18, 2013, the defendant filed a motion for order, number 200, requesting that the court direct the plaintiff to comply with various provisions of the parties' agreement regarding health insurance for the children.[5] On December 9, 2013, the defendant filed another motion for contempt and motion to compel, numbers 201 and 202, regarding the plaintiff's tax returns. On December 31, 2013, the plaintiff filed a motion for contempt, number 203, regarding the defendant's child support obligation.[6]

         On December 29, 2014, and January 5, 2015, the defendant filed two more motions for contempt, numbers 213 and 214, the first alleging that the plaintiff was in violation of the parenting plan set forth in the parties' agreement, and the second alleging that the plaintiff was in violation of an aspect of the agreement concerning her tax returns, and a motion to compel, number 215. On January 26, 2015, the plaintiff filed a motion for attorney's fees, [7] number 216, and, on April 27, 2015, the defendant filed a motion for attorney's fees, number 223.

         Following a four day hearing involving more than twenty motions, and the submission of proposed orders and financial affidavits by each of the parties, the court, on August 27, 2015, issued a memorandum of decision. Shortly after the court rendered judgment, the plaintiff filed a motion to reargue/reconsider, asking the court to correct certain findings and mathematical calculations contained in the original memorandum of decision. The court granted that motion and, on February 23, 2016, issued some corrections to its August 27, 2015 memorandum of decision. Taking into consideration the original and the corrected memoranda of decision, the court made the following rulings on the relevant motions of the parties.

         Regarding the plaintiff's postjudgment motion for contempt, number 157, her motion for attorney's fees, number 158, and the defendant's motion for modification, number 159.01, the court denied the motion for contempt, granted the motion for attorney's fees, and granted the motion for modification. The court found that the defendant's position that, on the basis of paragraph 5.1 of the parties' agreement, he could reduce his child support unilaterally, without court intervention, if his earnings were less than $205, 000 per year, was ‘‘completely unreasonable and without merit.'' Nevertheless, the court found that the defendant's unilateral actions, ‘‘under all the facts and circumstances . . . do not amount to wilful contempt in that he had, in good faith, relied upon professional assistance in the preparation of the child support guidelines worksheets that formed the basis of his modified child support payments.'' The court also determined that a substantial change in circumstances had arisen in that the defendant had become unemployed at the time he filed his February 7, 2012 motion for modification. After calculating the amount of support due during the various periods of changing income, the court concluded that the defendant had an arrearage, as of June 30, 2015, in the amount of $59, 254. It also concluded that the defendant's share of support for the parties' minor children, as of June 30, 2015, was $539 per week. Additionally, the court also concluded that the plaintiff was entitled to reasonable attorney's fees because the defendant had breached the agreement of the parties.

         Regarding the defendant's April 5, 2012 motion for contempt, number 166, and his motion for attorney's fees, number 169, the court denied both motions, finding that the defendant had not met his burden of proof on the contempt allegation.

         Regarding the defendant's motions for contempt, numbers 181, 182, and 183, and the plaintiff's motion for contempt, number 188, the court denied those motions, finding that any violation of the parenting plan by the plaintiff was de minimus, and that each of the parties had failed to establish contumacious behavior on the part of the other party.

         Regarding the plaintiff's motion for order, number 189, requesting that the court set the percentages that the parties must pay for summer camp, the court found that the parties' agreement was silent on this issue and that the children would be best served if each party contributed to the activities on a predetermined basis such as they do for reasonable medical expenses.

         Regarding the defendant's motions for contempt, numbers 190 and 213, alleging that the plaintiff was in violation of the parenting plan, the court found that the defendant had failed to meet his burden of proof and that the plaintiff had attempted to address these issues with the defendant, but that the defendant had failed to respond in a good faith manner.

         Regarding the defendant's motion for order, number 193, requesting that the court grant to him final authority on all major decisions affecting the minor children, the court found that giving the defendant such authority would not be in the best interest of the children because the defendant had ‘‘exhibited a pattern of rigidity, close-mindedness, and vindictiveness in his dealings with the [plaintiff] . . . .''

         Regarding the defendant's motions for order, numbers 194, 195, and 196, requesting that the court order the plaintiff to sign authorizations for the defendant to obtain several years of her federal and state tax returns, the court denied those motions, concluding that, although the evidence supported a finding that the plaintiff inadvertently overpaid her taxes, the order requested by the defendant was unnecessary and unwarranted.

         Regarding the defendant's motion for contempt, number 197, again alleging that the plaintiff violated the parenting plan, the court denied this motion concluding that the ‘‘testimony and evidence clearly support a finding that the [plaintiff] has not interfered with the exercise of the [defendant's] parenting rights . . . [that] the [defendant's] position is supported by neither law nor logic nor the facts . . . and [t]hat the [defendant's] claim is both mean-spirited and without merit . . . .''

         Regarding the defendant's motion for order, number 200, requesting that the court direct the plaintiff to comply with various provisions of the parties' agreement regarding health insurance for the children, the court found that the basis of the defendant's motion did not involve any alleged failure by the plaintiff to maintain the children on her health insurance, but, rather, that it was about the defendant wanting control of the plaintiff's health savings debit card. The court found the defendant's position on this issue both ‘‘farfetched'' and ‘‘unsupportable by law.'' As to the plaintiff's motion for contempt, number 203, the court determined that the plaintiff had withdrawn this motion.

         Regarding the defendant's motions for contempt and to compel, numbers 201, 202, 214, and 215, alleging that the plaintiff was in violation of an aspect of the agreement concerning her tax returns, the court found that the defendant had failed to meet his burden of proof.

         Regarding the plaintiff's motion for attorney's fees, number 216, and the defendant's motion for attorney's fees, number 223, the court found that the plaintiff was entitled to reasonable attorney's fees due to the defendant's breach of the parties' agreement, but that the defendant was not entitled to attorney's fees.

         This appeal followed. Additional facts will be set forth as necessary. We first consider the plaintiff's cross appeal, followed by each of the issues raised by the defendant in his appeal.

         I

         THE PLAINTIFF'S CROSS APPEAL

         The plaintiff claims in her cross appeal that the court erred when it declined to hold the defendant in contempt for engaging in self-help by repeatedly modifying his child support payments without an order of the court. She argues that the evidence demonstrates that the defendant wilfully violated the child support order on multiple occasions and that there is nothing in the record to support the court's conclusion that the defendant's repeated self-help should be excused because of a good faith dispute or a misunderstanding. On the basis of the evidence and the court's factual findings, we agree.

         The record reveals that at the time of the dissolution in March, 2010, the defendant had received an offer of employment with a salary of $205, 000, but he had not yet started his new job. Initially, the defendant met his child support obligation of $260 per week, but in late 2011 he became unemployed. Thereafter, on January 1, 2012, the defendant ceased paying child support, and, on February 2, 2012, the plaintiff filed a motion for contempt and a motion for attorney's fees. The defendant, on February 7, 2012, filed a motion for modification of the child support order on the ground that his unemployment constituted a substantial change in circumstances. As set forth extensively in our overview of the procedural history of this case, many more motions were filed by both parties.

         Before these motions were heard by the court, the defendant repeatedly modified or withheld his child support payments. In response to changes in his income, the defendant recalculated his child support obligation on the basis of his then present income, using a deviation factor, and he offset what he calculated he owed against what he calculated he had overpaid to the plaintiff during the early period of his unemployment.

         The court explained the defendant's position as follows: ‘‘[I]f at any time he is not earning $205, 000 [per] year, he has the right to arbitrarily recalculate child support on a fluctuating basis depending upon his [then] present income.'' The court specifically found that the language in paragraph 5.1 was clear and unambiguous, and that the defendant's position was ‘‘both completely unreasonable and without merit.'' The court also found that although ‘‘the [bracketed] phrase [in the agreement] taken by itself (the brackets are in the original) would appear to support [the defendant's construction], he has taken that phrase completely out of context.'' Nevertheless, the court found that the defendant's unilateral modifications of his child support obligation were not wilful because ‘‘he had, in good faith, relied upon professional assistance in the preparation of the child support guidelines worksheets that formed the basis of his modified child support payments.'' The plaintiff claims that this was error. We agree.

         ‘‘Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . A contempt judgment cannot stand when, inter alia, the order a contemnor is held to have violated is vague and indefinite, or when the contemnor, through no fault of his own, was unable to obey the court's order. . . .

         ‘‘Consistent with the foregoing, when we review such a judgment, we first consider 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. . . . A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [party] were in contempt of a court order. To constitute contempt, a party's conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.'' (Citation omitted; internal quotation marks omitted.) Hirschfeld v. Machinist, 181 Conn.App. 309, 318-19, 186 A.3d 771, cert. denied, 329 Conn. 913, 186 A.3d 1170 (2018).

         We first consider whether the order at issue is clear and unambiguous. Accordingly, we begin with the language of paragraph 5.1 of the parties' agreement, which was incorporated into the judgment of dissolution: ‘‘[T]he Husband shall during his lifetime pay the Wife the sum of $260.00 per week as and for child support pursuant to the child support guidelines [provided he is employed at the rate of Two Hundred and Five Thousand ($205, 000.00) Dollars per year]. The Husband's obligation with respect to each child shall terminate when the child attains age eighteen (18), or if a child is still attending high school when he or she attains age eighteen (18)[8] and graduates high school, whichever event shall first occur.'' (Footnote added.)

         The plaintiff argues that the trial court correctly found this provision to be clear and unambiguous in requiring the defendant to pay a weekly child support obligation of $260, based upon his anticipated annual income of $205, 000. We agree. The provision clearly sets forth that the defendant, on the basis of his anticipated income of $205, 000, will pay to the plaintiff child support in the amount of $260 per week ‘‘pursuant to the child support guidelines.'' There is nothing in the agreement that would permit the defendant to stop paying support or to change the amount of support, unilaterally, if his income later changed.

         We next consider whether there is clear error in the court's finding that the defendant's disobedience of the court's child support order and his failure to seek a subsequent court order before repeatedly modifying his child support payments was wilful or was otherwise excused by a good faith dispute or misunderstanding. The plaintiff argues that the defendant's construction of the agreement, as one permitting him to engage in self-help whenever his income changed, specifically and pointedly was found by the court to be‘‘both completely unreasonable and without merit.'' She contends that these findings demonstrate wilfulness, and that the court's later finding that the defendant's actions were not wilful is clear error. We agree.

         In this case, the court specifically found that the defendant breached the order of the court. It further found that the defendant's position that he unilaterally or without leave of the court could recalculate and change or withhold his child support payments on the basis of his changing income was ‘‘both completely unreasonable and without merit.'' The court also explained: ‘‘While the phrase [in paragraph 5.1] taken by itself . . . would appear to support [the defendant], he has taken that phrase completely out of context. . . . [W]hen taken in context, the clear meaning of the phrase is that the initial amount of support is tied to that level of income [($205, 000)], and does not preclude a modification by either party in the event of a substantial change of circumstances or substantial deviation from the child support guidelines.'' (Citations omitted; internal quotation marks omitted.) Despite finding that the defendant was in breach of the court's order, that his construction of the bracketed language in that order was ‘‘completely unreasonable and without merit, '' and that he had taken the language out of context, the court went on to find that the defendant's ‘‘actions [did] not amount to wilful contempt in that he had, in good faith, relied upon professional assistance in the preparation of the child support guidelines worksheets that formed that basis of his modified child support payments.''

         That the defendant may have relied on professional financial assistance to facilitate the preparation of child support guideline worksheets in December, 2014, [9]sheds no light on whether his decision to engage in self-help beginning in January, 2012, was wilful or was based on a good faith dispute or misunderstanding. The professional advice sought by the defendant was limited to recalculating his child support obligation on the basis of his changes in income. There is no evidence in the record that the defendant sought appropriate legal advice regarding his right to unilaterally modify his support obligation.

         In this matter, the court specifically found that the defendant's construction of the child support order was ‘‘both completely unreasonable and without merit, '' and that he had taken the bracketed language in that order completely out of context. We conclude that these findings evince a wilful decision by the defendant to engage in selfhelp, a decision that this court cannot and will not condone, and that the trial court's later finding that the defendant, in good faith, sought assistance in preparing new child support guidelines worksheets does not excuse his decision not to seek the guidance of the court rather than engage in self-help. See Behrns v. Behrns, 80 Conn.App. 286, 292, 835 A.2d 68 (2003) (‘‘[W]e will not countenance one party's interpreting the term and undertaking unilateral action to the detriment of the other party. In such a circumstance, the party seeking to alter payments must seek the assistance of the court.''), cert. denied, 267 Conn. 914, 840 A.2d 1173 (2004). The evidence clearly demonstrates that the defendant stopped paying child support in January, 2012, and did not resume any type of child support payment for an entire year, despite new gainful employment, that he thereafter changed whatever amount he decided to pay, apparently on the basis of some fluctuation in his income, [10] and that he did not seek advice from Mitchell, the financial advisor, until late December, 2014, nearly three years after he first engaged in self-help. Furthermore, the defendant's hiring of Mitchell to facilitate the preparation of child support guideline worksheets, even if done sooner, would not excuse his decision to engage in selfhelp. It is undeniable that the defendant made these modifications to his court-ordered child support without the permission of the court. There can be no dispute, our law is quite clear: ‘‘An order of the court must be obeyed until it has been modified or successfully challenged.'' (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998). Although a good faith dispute or the inability of a party to obey an order of the court; see id., 532; may be raised as a defense to a contempt allegation, in this case, the evidence supports but one conclusion; the defendant chose not to comply with the court's child support order, and he wilfully engaged in self-help in breach of that order. Accordingly, we conclude that the court abused its discretion when it declined to find the defendant in contempt for engaging in selfhelp.

         II

         THE DEFENDANT'S APPEAL

         In his appeal, the defendant claims that the court improperly: (1) determined his child support and his arrearage obligations; (2) ordered him to pay $50, 000 toward the attorney's fees of the plaintiff; (3) declined to hold the plaintiff in contempt; and (4) held him in contempt for failing to make certain payments of child support. We consider each of these claims in turn.

         A

         The defendant claims that the court ‘‘improperly determined the defendant's child support, arrearage, and expense obligations.'' The defendant raises four specific arguments in support of his claim: (1) ‘‘The trial court's admission that it used the Family Law Software program, combined with its inability to articulate the figures it relied upon to arrive at the net numbers, confirms that the trial court used an improper source (post-trial, nonevidentiary tax calculations) to arrive at the net incomes''; (emphasis in original); (2) the court improperly failed to consider the defendant's request for a deviation from the presumptive amount of child support, (3) the court impermissibly modified its decision in ...


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