185 Conn. App. 204
Conn. App. Ct.2018Background
- Marriage dissolved July 6, 2011; two minor children; judgment incorporated a March 25, 2011 parenting agreement allocating joint legal custody and splitting unreimbursed medical and extracurricular expenses 50/50 with notice/trigger procedures.
- Judgment awarded marital home to defendant (Britt); mortgage remained in plaintiff’s (Thomas) name; defendant sought authorization from plaintiff to negotiate/assume/modify the mortgage to avoid foreclosure and sought reimbursement for fees, interest, penalties and missed payments.
- Multiple postjudgment motions (contempt, modification, motions to compel) were litigated before several judges; disputes included (a) unpaid share of children’s medical and activity expenses, (b) mortgage authorization and alleged missed mortgage payments, (c) sharing of 2010 tax refund, (d) allocation of guardian ad litem fees, (e) modification of child support, and (f) past-due provisional alimony for 2012.
- This court previously decided an appeal (Brochard I) reversing the trial court’s disposition on the mortgage-authorization issue and remanding for an evidentiary hearing limited to whether the plaintiff supplied an authorization meeting the dissolution court’s order.
- On remand and in subsequent proceedings the trial court (Gould, J.) denied most of defendant’s contempt and modification claims, modified child support downward (later adjusted), and corrected a past-due alimony award; the defendant appealed. The appellate court affirms in all respects reached on this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Contempt for failure to pay 50% of unreimbursed nonemergency medical expenses | Plaintiff contended parenting agreement required notice/consultation before incurring nonemergency expenses; he had not willfully violated any clear order | Britt argued plaintiff owed specific sums ($242.50 medical) and parenting agreement did not require prior consent for nonemergency care | Court: parenting agreement unambiguous — defendant had to consult before incurring nonemergency medical expenses; contempt denied for medical expenses. |
| 2) Contempt for unpaid extracurricular expenses | Plaintiff disputed amounts and whether notice/consent procedures were followed | Britt claimed $2,129.13 owed for activities | Court: facts unclear as to notice, agreement, and which expenses are unpaid; contempt denied without prejudice (defendant may return with clearer proof). |
| 3) Mortgage authorization and arrearages (contempt) — authorization subclaim | Plaintiff relied on Brochard I resolution and prior proceedings; asserted matter already decided | Britt claimed plaintiff failed to provide proper authorization so she could negotiate/assume mortgage and is entitled to costs/penalties | Court: issue already litigated on prior appeal (Brochard I); res judicata bars relitigation here (remand in Brochard I limited to evidentiary hearing on authorization). Court declines to relitigate the authorization claim in this appeal. |
| 4) Mortgage arrearages (April–July 2011) contempt | Plaintiff argued Judge Gordon denied request to make him pay the missed mortgage payments | Britt argued Judge Gordon ordered plaintiff to bring mortgage current for April–July 2011 | Court: review of August 12, 2011 transcript shows judge denied request to require plaintiff to pay the missed mortgage/interest; plaintiff cannot be in contempt of a non‑existent order. |
| 5) Contempt for failing to share 2010 tax refunds | Plaintiff noted dissolution order required sharing only a refund resulting from a jointly filed 2010 return; amended joint return produced tax due | Britt argued plaintiff benefited from separate filings and owes half of net positive refund | Court: order was clear and limited to refunds from a jointly filed 2010 return; postjudgment facts produced tax due, so contempt denied. |
| 6) Motion to modify guardian ad litem fee allocation (reduce defendant’s 20%) | Plaintiff maintained original 80/20 allocation was proper given retainer payments and both parties’ finances | Britt argued substantial change in circumstances (unemployed/insufficient assets) warranted reduction | Court: no sufficient evidence of a substantial adverse change for defendant; assets remained large and court did not abuse discretion in denying modification. |
| 7) Plaintiff’s motion to modify child support and defendant’s cross-motion for increase | Plaintiff sought downward modification as oldest child reached majority and on updated income; defendant sought upward modification but did not secure timely hearing | Britt claimed court erred by not hearing her cross-motion | Court: trial court found substantial change (older child majority) and reduced support; defendant failed to preserve/press her motion at hearing dates and acquiesced to posttrial briefing procedure—no reversible error. Court later adjusted support calculation on reconsideration without abuse of discretion. |
| 8) Contempt for unpaid provisional alimony (2012) amount | Plaintiff’s partial payment was disputed; after stipulation parties agreed on figure owed | Britt sought full $1,802.40; plaintiff disputed amount paid | Court: initial oversight corrected on reconsideration; judge awarded the stipulated past‑due amount ($796.85) — no error. |
Key Cases Cited
- Brochard v. Brochard, 165 Conn. App. 626 (Conn. App. 2016) (prior appellate decision reversing trial court re: mortgage‑authorization procedural rights)
- Dowd v. Dowd, 96 Conn. App. 75 (Conn. App. 2006) (two‑part standard for contract interpretation and contempt based on incorporated agreements)
- Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479 (Conn. 2000) (contract interpretation principles: give effect to parties’ intent and ordinary meaning)
- Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1 (Conn. 2007) (when contract language is definitive, interpretation is question of law)
- Eckert v. Eckert, 285 Conn. 687 (Conn. 2008) (ambiguity must arise from contract language, not subjective perceptions)
- Brody v. Brody, 315 Conn. 300 (Conn. 2014) (party seeking civil contempt bears burden of clear and convincing proof)
- Honan v. Dimyan, 63 Conn. App. 702 (Conn. App. 2001) (res judicata and finality principles; transactional test for claim preclusion)
- In re Leah S., 284 Conn. 685 (Conn. 2007) (de novo review whether an underlying order is sufficiently clear to support contempt)
- Lamacchia v. Chilin sky, 79 Conn. App. 372 (Conn. App. 2003) (trial court discretion in awarding guardian ad litem fees)
- Zahringer v. Zahringer, 124 Conn. App. 672 (Conn. App. 2010) (retroactivity in child support modification requires examining interim income/needs)