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 ...