Perricone v. Perricone, No. FA-03-0481765 (CT 9/12/2005)

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Unpublished Opinion

Nicholas Perricone v. Madeline Perricone Opinion No.: 90283

No. FA-03-0481765

Superior Court of Connecticut

Judicial District of New Haven at New Haven

September 12, 2005

MEMORANDUM OF DECISION REGARD1NG MOTIONS #291, MOTION TO ADJUDGE DEFENDANT IN CONTEMPT AND FOR ORDER POST-JUDGMENT DATED MARCH 24, 2005; AND #302, MOTION TO ADJUDGE DEFENDANT IN CONTEMPT POST-JUDGMENT DATED APRIL 29, 2005; AND MOTION #298, MOTION FOR CONTEMPT—POST-JUDGMENT

LYNDA B. MUNRO, JUDGE.

These parties were divorced on September 8, 2004 after an uncontested hearing. The judgment of dissolution incorporated and ordered a written agreement of the parties which provided in salient part:

Until September 1, 2009 the Husband shall have the right to use the Florida premises as a vacation home for a minimum of 90 days per calendar year. The dates of the Husband's use shall be with the Wife's prior consent which shall not be unreasonably withheld or delayed. During his use of the property, the Husband shall have exclusive use and occupancy of the premises.

In Motion #291, dated and filed March 24, 2005, the plaintiff alleges that the defendant has violated that court order by denying his usage of the property in three separate locations, and, has refused to pay utilities and maintain pool service for the property to frustrate his intended usage. The plaintiff seeks a finding of contempt and further financial orders as a result thereof. In Motion #302, the plaintiff seeks a similar finding regarding the same clause of the judgment, this time in reference to an April 2005 request by the plaintiff to use the property. For the reasons stated hereinafter, Motions #291 and 302 are granted. Motion #298, dated and filed April 25, 2005 is a post-judgment motion for contempt filed by the defendant against the plaintiff regarding the very same clause of the judgment. In this motion, the defendant asserts the plaintiff has violated the action by conduct of his regarding the use of the property in five (5) separate ways. For the reasons stated hereinafter, Motion #298, Motion for Contempt is denied.

The property at the center of all of these motions is 325 Ocean Shore Boulevard, Ormond, Florida. This improved real estate is in a beachfront community on the Atlantic Ocean. It is improved with, inter alia, a home and a swimming pool. Pursuant to terms of the judgment this marital asset was awarded solely to the defendant, subject however to the plaintiff's right of possession, stated infra. At the time of the dissolution, September 8, 2004, the asset's value was assigned a gross value of $3,500,000 by the defendant.

I. Law of Contempt

"In order to constitute contempt, a party's conduct must be wilful. Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983). "The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind." (Citations omitted; internal quotation marks omitted.) Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court's discretion. "It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985)." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).

"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." Bunche v. Bunche, 36 Conn.App. 322, 324, 650 A.2d 917 (1994). "To constitute contempt, a party's conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt." Bowers v. Bowers, 61 Conn.App. 75, 81, 762 A.2d 515 (2000), cert. granted on other grounds, 255 Conn. 939, 767 A.2d 1211 (2001)." Prial v. Prial, 67 Conn.App. 714, 787 A.2d 50 (2001).

"Similarly, in the present case, we conclude that where there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather than resort to self-help." Sablosky v. Sablosky, 258 Conn. 713, 720, 784 A.2d 890 (2001).

". . . [O]ur Supreme Court has held that "there may be circumstances in which an ambiguity in an order may preclude a finding of contempt . . . when there is an adequate factual basis to explain the failure to honor the court's order." (Internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 721, 784 A.2d 890 (2001). Nonetheless, "where there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather than resort to self-help. The appropriate remedy for doubt about the meaning of a judgment is to seek a judicial resolution of any ambiguity; it is not to resort to self-help." Id., 720. Thus, our Supreme Court has held that "even if the court determines that because of such an ambiguity contempt would not be warranted, it may nonetheless enter an appropriate order . . . based on its interpretation of the judgment. Id., 723." Berglass v. Berglass, 71 Conn.App. 771, 777-8, 804 A.2d 889 (2002).

II. Plaintiff's Motions for Contempt

A. January 2005

The plaintiff sought defendant's permission to utilize the Ormond Beach property over Martin Luther King weekend (around January 17) 2005. The defendant denied the request. He made other arrangements for accommodations in Florida. After the accommodations had been arranged and while the plaintiff was already staying at the Villas of Grand Cypress (his alternate accommodations), the defendant telephoned plaintiff on his cell phone to let him know that she would not be using the property and he was free to use it. He did not go to the home for he had already paid for his accommodations. The accommodations cost plaintiff $7,201.45.

The defendant had denied plaintiff's request to utilize the Ormond Beach property because she wanted to go herself that weekend but she was not sure her fiance would be able to come with her. By Tuesday of the week preceding the Martin Luther King Day weekend, she knew she was not going. On Friday, she emailed plaintiff that she was not going, though she knew it was likely he had already arrived in Florida. Defendant never had airline reservations for the weekend.

The court finds that the defendant unreasonably withheld her consent to the plaintiff's use of the property in January 2005. The decision she made was to say "No" as long as there was some chance she would use the property. Also, once she knew she was not going to use the property, she did not communicate its availability to the plaintiff in an expedient manner. That is not reasonable, especially in light of all of the evidence surrounding the property. The defendant clearly resents the intrusion on her ownership of the plaintiff's 90-day minimum per year use of the property. She sees that, as well as other parts of the parties' judgment as an inappropriate exertion of control over her. While the court finds the structure and contempt of the provisions extremely problematic in light of the parties' relationship and attitude towards each other, it is the bargain they struck and is part of a very intricate mosaic of financial orders.

B. February 2005

By letter of February 4, 2005, the plaintiff requested use of the Ormond Beach property for the period of February 16 to February 25, 2005. He received no response to his letter. The letter had indicated that in the absence of a denial he would be utilizing the property. He arrived on Thursday, February 16, 2005 and on the 18th the defendant became aware that he was at the premises and made it known to him that the defendant wanted him out. He vacated and went to Miami where he stayed at Mandarin Oriental Hotel for three nights at a cost of $18,391.56.

Defendant was in Orlando, Florida while the plaintiff was at the Ormond house and in Miami. She was vacationing with a family and friends (including the minor child) and wanted the ability to go to her house on that vacation (1 1/2 hours driving time). The defendant knew she was staying in Orlando at least to February 21. The defendant gives no reason for the denial of the non-overlapping time the plaintiff requested other than that the parties were not communicating at the time.

Neither party stayed at the Florida home that week after the plaintiff left it. The minor child became ill and the plaintiff, defendant, and the child returned to Connecticut on the 22nd of February 2005 (Wednesday).

March and April 2005

On March 2, 2005, the plaintiff sent a fax request to utilize the Ormond Beach home on March 23-25, April 1-4 and April 13-22, 2005. The defendant did not provide a response. As a result, instead, the plaintiff rented a home in the Daytona area for a week in April at a total cost of $4,797.50 (of which $500) was a security fee. The plaintiff and the minor child stayed there.

The court having found the plaintiff to have violated the Ormond Beach provision, must consider whether that judgment provision was sufficiently clear that the court must conclude that the...