162 Conn.App. 661
Conn. App. Ct.2016Background
- Parties divorced in 2009; dissolution judgment incorporated a settlement agreement requiring the defendant to pay the plaintiff $400/week alimony and the plaintiff to assume the marital home (mortgage, taxes, insurance, maintenance).
- Agreement defined cohabitation as "a relationship similar to that of husband and wife" and permitted modification of alimony on that ground; it also treated obligations as nondischargeable in bankruptcy.
- Plaintiff moved to New Jersey and filed Chapter 7 bankruptcy in December 2013; she received a discharge in March 2014.
- In July 2014 the defendant filed postjudgment motions: (1) contempt for plaintiff’s failure to pay mortgage, taxes, maintain the home, and (2) termination of alimony alleging plaintiff cohabited with Russell Brown.
- At the July 21, 2014 hearing the plaintiff did not appear; the court proceeded, admitted defendant’s evidence (testimony and photographs, and a newspaper article showing engagement), found contempt, awarded limited attorney’s fees, and terminated alimony based on cohabitation and an adverse inference from plaintiff’s absence.
- Plaintiff filed a motion for reargument with proffered testimony; the court dismissed it. Plaintiff appealed, claiming the court erred by not allowing her to testify on financial inability and cohabitation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contempt finding was improper because plaintiff was not allowed to testify about financial inability | Norberg-Hurlburt: court prevented her defense by not permitting her to testify about inability to pay, so contempt is not willful | Hurlburt: he proved noncompliance; burden was on plaintiff to prove inability to pay and she offered no evidence | Court: affirmed contempt; plaintiff failed to meet burden to show inability to pay; counsel statements are not evidence and post‑hearing affidavits not in record |
| Whether alimony termination for cohabitation was improper without plaintiff’s testimony | Norberg-Hurlburt: court lacked sufficient evidence; denial of reargument deprived her chance to testify; proffer should be considered | Hurlburt: produced testimony and an exhibit (newspaper article showing engagement); plaintiff’s absence allows adverse inference | Court: affirmed termination; evidence of engagement plus adverse inference supported finding of cohabitation and modification under the agreement |
Key Cases Cited
- Tobey v. Tobey, 165 Conn. 742 (recognizing inability to obey a court order without fault is a defense to contempt)
- Grasso v. Grasso, 153 Conn. App. 252 (standard of review and factfinding for contempt and inferences)
- Marshall v. Marshall, 151 Conn. App. 638 (burden on obligor to prove inability to pay in civil contempt)
- In re Samantha C., 268 Conn. 614 (adverse inference may be drawn from failure to testify after prima facie case)
- Dionne v. Dionne, 115 Conn. App. 488 (representations of counsel are not evidence)
- Brody v. Brody, 315 Conn. 300 (indirect civil contempt requires clear and convincing evidence)