Sreenivasan v. Sreenivasan

Mohan Sreenivasan v. Alicia Sreenivasan

No. NNHFA166061997

Superior Court of Connecticut, Judicial District of New Haven, New Haven

September 29, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION PLAINTIFF'S MOTION FOR CONTEMPT (#188)

Karen Goodrow, J.

I. Procedural History and Facts

This dissolution action went to judgment on March 7, 2017. The Court (Emons, J.) incorporated the parties' separation agreement into the judgment. The parties were represented at the dissolution hearing by counsel. Multiple postjudgment motions have been filed. On September 22 and 25, 2017, a hearing was held on the plaintiff's Motion for Contempt (#188). The parties were represented by counsel, and each party presented evidence. The plaintiff alleges that the defendant is in contempt for her wilful violation of the court's order of April 18, 2017 that neither party take the child out of the State of Connecticut. The defendant concedes that the court order is clear, and that she violated the order by taking the child to the State of New Jersey. She asserts, however, that her conduct was not wilful. The plaintiff asserts that the defendant willfully violated the court's order. For the reasons stated below, the court denies the Motion for Contempt.

II. Facts

On April 18, 2017 this Court ordered that neither party take the child outside of the State of Connecticut until further order of the court. The defendant took the minor child from the State of Connecticut to the home of the defendant's parents in New Jersey. The defendant's conduct violated the court's order of April 18, 2017.

On April 30, 2017, the defendant vacated the former marital home. Pursuant to the dissolution agreement and judgment, the plaintiff had the right to reside at the former marital home commencing May 1, 2017. At the time that the defendant left the residence, she was exercising her parenting time with the minor child. Two police officers and the plaintiff were present at the home when the defendant vacated with the child. The defendant, along with the minor child and the maternal grandmother, stayed in a hotel in Guilford, Connecticut with the minor child until May 2, 2017. On May 2, 2017, contrary to the Court's order, the defendant took the child to the State of New Jersey with the maternal grandmother. The defendant went to her parents' home with the child because she felt she and the child would be safe there, and because there were already accommodations there for the child. The defendant and the minor child stayed at the home of the maternal grandparents for a few days, when the defendant returned the child to the State of Connecticut, upon receiving a phone call from the police. The defendant was aware of the court order requiring that neither party take the child out of the State of Connecticut, however, the defendant believed that she had no other option in order to provide a safe and appropriate living environment for the minor child. Prior to April 30, 2017, the plaintiff made the defendant aware that his parents had offered for the defendant to live with them upon vacating the former marital home. However, the defendant did not feel comfortable availing herself of the offer because she felt that it was a " trap" set by the plaintiff.^[1] The defendant testified credibly that in the past, the plaintiff had lied to her, " faked" having cancer in order to get the defendant to move back to Connecticut, and threatened her that his parents would testify against her in court.

The parties had a court date scheduled for May 1, 2017, however, the hearing had been rescheduled. Prior to leaving for New Jersey on May 2, 2017, the defendant went to the New Haven Judicial District courthouse, and inquired of the clerk's office of what she should do in light of the court's prior order. She had attempted to reach her attorney for advice, but was unsuccessful. Believing she had no other option, the defendant took the child to New Jersey with her mother. Although the defendant testified that she was afraid of the plaintiff, the Court does not credit the defendant's testimony that, for years, the plaintiff was violent. However, the Court credits the defendant's testimony that the plaintiff exhibited a " short fuse" and had a temper, causing the defendant concern. The defendant perceived the plaintiff's actions towards the defendant as harassing, and escalating in nature. The Court credits the defendant's testimony that in taking the child to New Jersey, the defendant did not intend to violate the court's order. The Court shall set forth additional facts as is necessary to its analysis.

III. Discussion

" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Internal quotation marks and citation omitted.) Brochard v. Brochard, 165 Conn.App. 626, 637, 140 A.3d 254 (2016). Civil contempt may be direct (conduct occurring in the presence of the court) or indirect (conduct occurring outside of the presence of the court). Cologne v. Westfarms Associates et al., 197 Conn. 141, 150, 496 A.2d 476 (1985). Prior to a finding of contempt, the alleged contemnor is entitled to the benefit of certain constitutional protections.^[2]

" The court's authority to impose civil contempt penalties arises not from statutory provisions but from the common law . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both." (Citations and internal quotations omitted.) Gil v. Gil, 94 Conn.App. 306, 310-11, 892 A.2d 318 (2006), citing Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982).

In order for the court to conclude that a party is in contempt, the court must find that there existed a sufficiently clear and unambiguous order for which the party had notice, that the party did not comply with the order, and that the non-compliance was willful. Mettler v. Mettler, 165 Conn.App. 829, 140 A.3d 370 (2016); Brody v. Brody, 145 Conn.App. 654, 77 A.3d 156 (2013); Pace v. Pace, 134 Conn.App. 212, 215-16, 39 A.3d 756 (2012); Celini v. Celini, 115 Conn.App. 371, 380-81, 973 A.2d 664 (2009), citing In re Leah, 284 Conn. 685, 935 A.2d 1021 (2007). The moving party bears the burden of proof by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 105 A.3d 887 (2015).

" To constitute contempt, a party's conduct must be willful . . . Noncompliance alone will not support a judgment of contempt . . . Scott v. Scott, 90 Conn.App. 883, 889, 879 A.2d 540 (2005). The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt . . . The contemnor must establish that he cannot comply, or was unable to do so." (Internal quotations omitted; citation omitted; internal quotation marks omitted.) Brody v. Brody, 145 Conn.App. at 662, citing Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998). " Although it [is] the [plaintiff's] burden to demonstrate that the [defendant] was not in compliance with the court's orders, . . . it [is] the [defendant's] burden to demonstrate that her noncompliance was not wilful." (Citation omitted; internal quotation marks omitted.) Norberg-Hurlburt v. Hurlburt, 162 Conn.App. 661, 671, 133 A.3d 482 (2016), citing Marshall v. Marshall, 151 Conn.App. 638, 651, 97 A.3d 1 (2014).

" It is undisputed that a judgment of civil contempt is improper if the contemnor, through no fault of his own, was unable to obey the court's order . . . It is, however, equally undisputed that, if a finding of willful misconduct is based on a court's determination of the credibility of relevant testimony at trial, we will overturn it only if the record demonstrates a manifest abuse of discretion. [T]he trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Pace v. Pace, supra at 216, citing LaBossiere v. Jones, 117 Conn.App. 211, 224, 979 A.2d 522 (2009). " [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." (Internal quotation marks and citations omitted.) Giordano v. Giordano, 127 Conn.App. 498, 506, 14 A.3d 1058 (2011), citing Sablosky v. Sablosky, 72 Conn.App. 408, 423-24, 805 A.2d 745 (2002).

" 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).

There is no dispute that the defendant violated a clear court order; the question for the court is whether or not the defendant's violation was wilful. " Wilful" conduct in the context of a civil contempt proceeding requires more than mere non-compliance. Trial courts are afforded great discretion in determining whether conduct is wilful. A reviewing court will utilize a two-step inquiry in determining whether the trial court has...