Wethington v. Wethington

309 A.3d 356

223 Conn.App. 715

Esther WETHINGTON

v.Joshua WETHINGTON

(AC 45824)

Appellate Court of Connecticut.

Argued October 16, 2023

Officially Released February 13, 2024

Dante R. Galiucci, Fairfield, for the appellant (defendant).

Christopher T. Goulden, Bridgeport, with whom, on the brief, was Barbara M. Schellenberg, for the appellee (plaintiff).

Moll, Seeley and Prescott, Js.

MOLL, J.

[1] ₇₁₇The defendant, Joshua Wethington, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Esther Wethington. On appeal, the defendant claims that the court improperly (1) granted several motions for contempt pendente lite filed by ₇₁₈the plaintiff, (2) distributed the parties’ assets, and (3) denied several of his postjudgment motions to reargue. We reverse the judgment of the trial court only with respect to the court’s (1) denial of one of the defendant’s motions to reargue and (2) grants of two of the plaintiff’s contempt motions, in whole or in part, insofar as the court adjudicated the defendant in contempt of the automatic orders pursuant to Practice Book § 25-5 (b)¹ for actions that he committed before the automatic orders had become effective against him. We affirm the judgment in all other respects.

The following facts, which are not in dispute, and procedural history are relevant to our resolution of this appeal. The parties were married in 2010. One child was born of the marriage in 2012. On November 21, 2019, the plaintiff com- menced the present dissolution action against the defendant on the ground that the parties’ marriage had broken down irretrievably. On December 20, 2019, the plaintiff filed her operative amended complaint.

The matter was tried to the court, Egan, J., over the course of four total days in September, 2021, and March, ₇₁₉2022. The court heard testimony from the parties and admitted several full exhibits. At the outset of the first day of trial, the court asked the parties to "confirm the motions going forward." The plaintiff's counsel cited six motions for contempt pendente lite that the plaintiff had filed, namely, (1) two contempt motions filed on March 11, 2020, (2) one contempt motion filed on September 11, 2020, (3) two contempt motions filed on December 11, 2020, and (4) one contempt motion filed on June 22, 2021.² On April 11, 2022, each party filed posttrial proposed orders.

On July 29, 2022, the court issued a memorandum of decision dissolving the parties’ marriage.³ The court found that the primary causes of the breakdown of the marriage were (1) the defendant’s drinking, which the court found to be "excessive," and (2) the defendant’s behavior toward the plaintiff, which included verbal and physical abuse. In addition, the court repeatedly stated that it deemed the defendant’s testimony at trial to be not credible. The court entered several financial orders as part of the dissolution judgment, including awarding the plaintiff 60 percent of the net proceeds from the sale of the parties’ marital residence in Southport. The court also granted the plaintiff's six motions for contempt identified previously in this opinion.⁴ In granting relief as to three of the contempt motions, the court ordered the defendant to pay the plaintiff a total of $76,895 out of his share of the net proceeds from the sale of the marital residence. The court additionally ₇₂₀awarded the plaintiff $25,000 in attorney’s fees with respect to the contempt motions.

Between August 16 and 17, 2022, the defendant filed several motions to reargue, to which the plaintiff objected. The court summarily denied the defendant’s motions to reargue and summarily sustained the plaintiff's objections.⁵ This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

We begin with the defendant’s claims concerning the trial court’s (1) grants of four of the plaintiff's motions for contempt, namely, (a) the two contempt motions filed on March 11, 2020, (b) the contempt motion filed on September 11, 2020, and (c) one of the contempt motions filed on December 11, 2020, and (2) denial of one of the defendant’s motions to reargue.⁶ We address each claim in turn.

A

[2] We first turn to the defendant’s claims regarding the court’s (1) grants of the plaintiff's motions for contempt filed on March 11, 2020, docket entries ##110.00 and 111.00 (contempt motion #110.00 and contempt motion #111.00, respectively), and (2) denial of one of the defendant’s motions to reargue, docket entry #214.00 (motion to reargue #214.00), which concerned the court’s adjudication of contempt motions ##110.00 and 111.00. With regard to the court’s grants of contempt motions ##110.00 and 111.00, the defendant asserts that the court improperly adjudicated him in contempt of the court’s ₇₂₁automatic orders because his conduct occurred before the automatic orders had become effective against him. As to the court’s denial of motion to reargue #214.00, the defendant contends that, in granting contempt motions ##110.00 and 111.00, the court overlooked that, as a matter of law, he could not be held in contempt of the automatic orders until they had become effective against him. We conclude that the court (1) improperly granted contempt motions ##110.00 and 111.00 insofar as the court adjudicated the defendant in contempt of the automatic orders for his conduct prior to the effective date of those automatic orders against him, and (2) overlooked that, as a matter of law, the defendant’s actions in October, 2019, could not constitute contempt of the automatic orders and, therefore, abused its discretion in denying motion to reargue #214.00.

The following additional procedural history is relevant to our resolution of this claim. The state marshal’s return of service filed in the present action reflects that, on November 21, 2019, the state marshal served an attorney representing the defendant with, inter alia, the summons, the plaintiff's original complaint, and notice of the automatic orders. See Practice Book § 25-5 (service of automatic orders is "made with service of process of a complaint for dissolution of marriage").

On March 11, 2020, the plaintiff filed contempt motions ##110.00 and 111.00. In contempt motion #110.00, the plaintiff asserted that the defendant violated the automatic orders in failing to deposit certain income into the parties’ joint checking account, including $15,000 in monthly disability payments that the defendant began receiving in October, 2019. In contempt motion #111.00, the plaintiff contended that the defendant violated the automatic orders in transferring, between October 23 and 28, 2019, a total of $196,000 from the parties’ joint bank accounts into a personal bank account "in contemplation of divorce and while ₇₂₂the parties’ marriage was in serious jeopardy and under-going an irretrievable breakdown." The court determined that the defendant’s actions violated the automatic orders and granted both contempt motions. The court did not order any specific relief vis-à-vis those contempt motions. It awarded, however, the plaintiff $25,000 in attorney’s fees in relation to the plaintiff's various contempt motions.

On August 16, 2022, the defendant filed motion to reargue #214.00. The defendant sought reargument on the basis that, as a matter of law, he could not be held in contempt of the automatic orders for his actions in October, 2019, which predated the effective date of the automatic orders against him.⁷ The defendant further ar- gued that the $25,000 attorney’s fees award had to be reduced to account for the court’s erroneous contempt adjudication. The court summarily denied motion to reargue #214.00.⁸

On appeal, the defendant claims that the court’s grants of contempt motions ##110.00 and 111.00 cannot stand insofar as the court adjudicated him in contempt of the automatic orders for his actions in October, 2019, which occurred prior to service of the automatic orders on him in November, 2019. He contends that the automatic orders were not in effect in October, 2019, and ₇₂₃that he "could not possibly have had notice of the automatic orders" at that time. The defendant further claims that the court abused its discretion in denying motion to reargue #214.00, in which he asserted that the court overlooked that, as a matter of law, he could not be adjudicated in contempt of the automatic orders for his conduct in October, 2019. We agree.

[3–9] At the outset, we set forth the following relevant legal principles and standards of review. "Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. … [C]ivil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts. … In part because the contempt remedy is particularly harsh … such punishment should not rest upon implication or conjecture, [and] the language [of the court order] declaring … rights should be clear, or imposing burdens [should be] specific and unequivocal, so that the parties may not be misled thereby. … To constitute contempt, it is not enough that a party has merely violated a court order; the violation must be wilful. … It is the burden of the party seeking an order of contempt to prove, by clear and convincing evidence, both a clear and unambiguous directive to the alleged contemnor and the alleged contemnor’s wilful noncompliance with that directive. … The question of whether the underlying order is clear and unambiguous is a legal inquiry subject to de novo review. … If we answer that question affirmatively, we then review the trial court’s determination that the violation was wilful under the abuse of discretion standard." (Internal quotation marks omitted.) Scott v. Scott, 215 Conn. App. 24, 38–39, 282 A.3d 470 (2022).

[10] Whether the automatic orders were clear and unambiguous is not at issue; rather, the question before us ₇₂₄is...