O'Connell v. O'Connell

922 A.2d 293

101 Conn.App. 516

Richard O'CONNELL v. Dawn O'CONNELL.

No. 26816.

Appellate Court of Connecticut.

Argued December 12, 2006.

Decided June 5, 2007.

Dawn O'Connell Llaser, pro se, the appellant (defendant).

FLYNN, C.J., and DiPENTIMA and LAVINE, Js.

LAVINE, J.

The pro se defendant, Dawn O'Connell,¹ appeals from two postdissolution judgments of the trial court. The defendant appealed first from the judgment of the court finding her in contempt for wilful failure to comply with various orders with respect to child support and medical expenses of the parties' child. The defendant claims that the court abused its discretion by finding her in wilful contempt because (1) the contempt finding was based on ambiguous financial orders, (2) the motion for contempt filed by the plaintiff, Richard O'Connell, failed to comply with Practice Book § 25-27, (3) the court denied her repeated requests for a continuance and (4) the plaintiff intentionally misled the court. The defendant later amended her appeal to include the judgment of the court rendered when it denied her motion to vacate an order it issued on April 15, 2005.² We affirm the judgments of the trial court.

We begin our resolution of this appeal by setting forth the relevant facts and procedural history. The marriage of the defendant and the plaintiff was dissolved on September 25, 1992. The parties had one minor child during their marriage. The judgment of dissolution awarded the parties joint custody of the child and provided that the child's principal residence would be with the defendant, with the plaintiff paying her child support. The judgment of dissolution also provided that the parties would share equally the cost of all unreimbursed medical expenses for the child.

On February 4, 2004, the court, Hon. John R. Caruso, judge trial referee, granted the plaintiff's motion to modify the custody arrangement and ordered the child's primary residence to be with the plaintiff, temporarily suspending his child support obligation. On March 10, 2004, the parties stipulated that the defendant was to pay the plaintiff $86 per week in child support. Also on that date, the defendant filed a motion for contempt, claiming that the plaintiff had failed to pay child support for some of the time that the child had resided with her. On April 20, 2004, she filed a similar motion updating the amount she claimed was owed to her.

On May 10, 2004, Judge Caruso held a hearing on various motions, including the defendant's contempt motions.³ On November 18, 2004, Judge Caruso issued a memorandum of decision resolving the issues raised at the May 10, 2004 hearing, in which he made three findings relevant to this appeal. First, he found that "the defendant should have paid and should be paying as current support $134 per week." Second, he found that "[i]f the defendant has continued to pay the plaintiff $86 per week, the child support arrearage due the plaintiff through the payment date November 17, 2004, amounts to $2532, and after deducting the arrearage due the [defendant] of $1845, there is a net due the plaintiff of $659,⁴ which the defendant is ordered to pay the plaintiff $27 per week in addition to the current order of $134 per week." Third, Judge Caruso ordered the defendant to pay the plaintiff $295 at a rate of $25 per week for unreimbursed medical expenses.

On July 8, 2005, the plaintiff filed a motion for contempt, claiming that the defendant had violated Judge Caruso's November 18, 2004 orders, as she had failed to pay (1) $27 per week, as ordered on the child support arrearage of $659, (2) $25 per week, as ordered on the unreimbursed medical expense arrearage of $295 and (3) some of her child support payments of $134 per week. The plaintiff also claimed that the defendant had violated the original judgment of dissolution because she had failed to pay one half of the child's unreimbursed medical expenses that had accrued subsequent to Judge Caruso's orders.

On July 19, 2005, the court, Hon. Herbert Barall, judge trial referee, held a hearing on the plaintiff's contempt motion. At the hearing, the plaintiff testified that the defendant had paid neither of the arrearages ordered by Judge Caruso. He also testified that she had not paid an additional $655 for unreimbursed medical expenses or five and one-half weeks of child support since Judge Caruso's order. The defendant appeared pro se at the hearing. She asked several times throughout the hearing for a continuance, as she wanted to present additional evidence to the court. Judge Barall denied her requests.

Judge Barall found the defendant in contempt of both Judge Caruso's November 18, 2004 order and the judgment of dissolution. With regard to the November 18, 2004 order, Judge Barall found that the defendant wilfully had failed to pay (1) the child support arrearage of $659, (2) the unreimbursed medical expense arrearage of $295 and (3) five and one-half weeks of her child support obligation of $134 per week, totaling $737. As to the judgment of dissolution, Judge Barall found that the defendant wilfully had failed to pay one half of the child's recent unreimbursed medical expenses, amounting to $655. The defendant appealed from the judgment of contempt to this court on August 5, 2005. On November 8, 2005, the defendant filed a motion for articulation of the contempt finding. Judge Barall filed an articulation on November 16, 2005. Additional facts will be set forth as necessary.

Before turning to the merits of the defendant's claims, we set forth the legal principles that guide our resolution of this appeal and identify the applicable standard of review. "A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [alleged contemnor] 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 . . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did." (Internal quotation marks omitted.) Gil v. Gil, 94 Conn.App. 306, 311, 892 A.2d 318 (2006). We now address each of the defendant's arguments in turn.

I

The defendant's first claim is that the court abused its discretion in finding her in wilful contempt of the November 18, 2004 order because that finding was based on Judge Caruso's allegedly ambiguous financial orders. First, the defendant claims that the child support arrearage order was ambiguous because Judge Caruso miscalculated the amount due. Second, the defendant claims that Judge Caruso ordered her to pay the plaintiff $295 for unreimbursed medical expenses at a rate of $25 per week, but never specified when the arrearage was to be paid. We conclude that the court's finding of contempt was not an abuse of discretion.

In Sablosky v. Sablosky, 258 Conn. 713, 784 A.2d 890 (2001), our Supreme Court held that a finding of wilfulness as a predicate to a judgment of contempt of court is not barred, as a matter of law, by the fact that the terms of the judgment involved are ambiguous. Id., at 715, 784 A.2d 890. The court stated that "[s]uch ambiguity is merely one of the factors for the trial court to take into consideration in exercising its discretion regarding a finding of wilfulness." Id., at 723, 784 A.2d 890. Moreover, the court reiterated the well established principle that "where there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather than resort to self-help." Id., at 720, 784 A.2d 890; see also Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994) ("a party has a duty to obey a court order however erroneous the action of the court may be" [internal quotation marks omitted]). "A different conclusion would not only frustrate clearly defined public policy regarding the parental obligation to support minor children . . . but it also would encourage parties to refrain from seeking clarifications of ambiguous court orders. The doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments." (Citation omitted; internal quotation marks omitted.) Sablosky v. Sablosky, supra, at 722, 784 A.2d 890.

Moreover, "[t]he fact that [a party] exercise[s] self-help when he was not entitled to do so . . . by disobeying the court's order without first seeking a modification [is] a sufficient basis for the trial court's contrary exercise of discretion. The court [is] entitled to determine that to exonerate the [contemnor] would be an undue inducement to litigants' exercise of self-help." (Emphasis in original; internal quotation marks omitted.) Id., at 719-20, 784 A.2d 890.

Judge Barall set forth in detail the grounds for the contempt finding in his articulation of the July 19, 2005 judgment. In finding the defendant in contempt for failure to pay the child support arrearage order of $659, the court stated that "the defendant's testimony as well as . . . a letter from the defendant to the plaintiff clearly indicated that she knew what the order was but did not pay it because she disagreed with Judge Caruso's decision on her claim that the plaintiff actually owed her money." (Emphasis added.) Likewise, as to the order that the defendant pay the plaintiff $134 per week in child support, Judge Barall stated that the "defendant clearly knew her obligation but held back money, intentionally claiming again money due her in opposition to Judge Caruso's finding. The $134 per week support amount was an agreed figure. ... [The defendant] acknowledged two weeks arrearage in testimony, and three and...