244 Conn. 523 | Conn. | 1998
Lead Opinion
Opinion
The plaintiff husband appeals from the Appellate Court’s affirmance of an order of contempt for his failure to pay weekly alimony. We conclude that it was not an abuse of the trial court’s discretion to hold the plaintiff in contempt but that it was an abuse of its discretion to award the defendant attorney’s fees of $15,067.50. Accordingly, we reverse that part of the Appellate Court judgment.
In addition, the trial court ordered that, in the event that the defendant’s gross annual earnings exceeded $25,000, one half of the amount by which her earnings exceeded $25,000 should be deducted from the periodic unallocated alimony. Specifically, the divorce decree provides in relevant part: “It is contemplated at this time that the defendant will continue her present part-time employment and that in the future she will be employed full-time, however, such employment shall not be considered a change of circumstances until her gross annual income from earnings shall exceed $25,000. One half of the amount by which her earnings exceed $25,000 shall be deducted from the periodic unallocated alimony and support hereinbefore awarded.” The plaintiff appealed from that judgment, which was affirmed by the Appellate Court in Eldridge v. Eldridge, 4 Conn. App. 489, 495, 495 A.2d 283 (1985).
Thereafter, in 1987, the defendant began to earn in excess of $25,000 annually as a teacher in the New York city school system. Nevertheless, it was not until July, 1994, that the plaintiff, as a result of his request for information, first learned of this fact. The defendant never informed the plaintiff of this change in circumstances despite the fact that it would have enabled the plaintiff, under the terms of the dissolution judgment, to seek a modification of alimony.
The plaintiff appealed from the trial court’s orders, which were affirmed by the Appellate Court in a per curiam opinion. Eldridge v. Eldridge, 45 Conn. App. 904, 692 A.2d 1320 (1997). We granted the plaintiffs petition for certification as to the following issue: “In the circumstances of this case, did the Appellate Court properly affirm the contempt judgment rendered against the plaintiff for his failure to pay alimony to the defendant even though the alimony payments previously made by the plaintiff exceeded his liability to
We conclude that the trial court properly determined that the plaintiff was able to obey the court order and that his failure to meet the court ordered obligation was wilful. Although we affirm the trial court’s finding of contempt, we, nevertheless, conclude that the trial court abused its discretion with regard to the issue of the defendant’s counsel fees, and, therefore, reverse that part of the judgment and remand the case to the trial court for a new determination of counsel fees.
I
In reviewing the plaintiffs claimed improprieties concerning the finding of contempt, we are guided by standards that limit our review. “[O]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power
“ ‘Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.’ ” Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 666, 594 A.2d 958 (1991), quoting Dunham v. Dunham, supra, 217 Conn. 29-30; see Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 658-59, 646 A.2d 133 (1994).
The plaintiff argues first that his conduct was not contemptuous of the court’s orders because he held a good faith belief that he was justified in suspending periodic alimony payments. Second, the plaintiff argues that he should not have been held in civil contempt because civil contempt requires that the contemnor be able to purge himself and, in light of the credit he was due, he had no means by which to purge himself. We find neither of the plaintiffs claims to be persuasive.
The trial court found that the plaintiff had decided to terminate his alimony payments “based on his belief that Judge Levine’s order entitled him to total alimony credits from the defendant’s credits of $225,195.”
The general rule was properly stated by the trial court in this case: “An order of the court must be obeyed until it has been modified or successfully challenged. See Fox v. First Bank, 198 Conn. 34, 40 n.3, 501 A.2d 747 (1985).” Jaconski v. AMF, Inc., 208 Conn. 230, 234-35, 543 A.2d 728 (1988). It is true that there may be some orders that are self-executing, either by their terms (“the plaintiff shall pay to the defendant as child support for each child the sum of $15,000 per year until the child’s eighteenth birthday when said support shall cease”) or by operation of law (terminating alimony upon remarriage). This case does not, however, involve such an order.
“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.” Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988). “The contemnor must establish that he cannot comply, or was unable to do so.” Bunche v. Bunche, 36 Conn. App. 322, 325, 650 A.2d 917 (1994), citing Zivic v. Zivic, 26 Conn. App. 5, 10, 596 A.2d 475 (1991). This is not a case in which the defendant did not have the ability to comply. Rather, he chose not to. The fact that the plaintiff ultimately was proven correct in his calculations of the various debits and credits between him and the defendant does not mean, as the plaintiff argues, that the court was precluded from finding him in contempt as a matter of law. Whether to find a party in contempt is ultimately a matter within the trial court’s discretion. The trial court could have exercised its discretion so as not to find the plaintiff in contempt. The fact that the plaintiff exercised self-help when he was not entitled to do so, however, by disobeying the court’s order withoutfirst seeking a modification was a sufficient basis for the trial court’s contrary exercise of discretion. The court was entitled to determine that to exonerate the plaintiff would be an undue inducement to litigants’ exercise of self-help.
II
The authority of the trial court to award attorney’s fees following a contempt proceeding is well settled. “Once a contempt has been found, § 46b-87 establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees. See 31 S. Proc., Pt. 4, 1988 Sess., p. 1308, remarks of Senator Anthony V. Avallone (purpose of attorney’s fees provision in § 46b-87 is ‘to put an additional onus’ on delinquent parties); see also Ullmann v. State, [supra, 230 Conn. 709]. Pursuant to § 46b-87, that sanction may be imposed without balancing the parties’ respective financial abilities.” Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997). The award of attorney’s fees in contempt proceedings is within the discretion of the trial court. Friedlander v. Friedlander, 191 Conn. 81, 86-87, 463 A.2d 587 (1983); Champagnes. Champagne, 43 Conn. App. 844, 850, 685 A.2d 1153 (1996); Tatro s. Tatro, 24 Conn. App. 180, 189, 587 A.2d 154 (1991). We conclude, under the circumstances of this case, that the award of attorney’s fees constituted an abuse of discretion.
Our law regarding judicial discretion is equally well settled. “Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity. . . . The action of the trial court is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.”
As part of its judgment dissolving the parties’ seventeen and one-half year marriage, the trial court entered certain financial orders. See footnote 5 of this opinion. Thereafter, although the defendant in 1987, began to earn in excess of $25,000 annually as a teacher in the New York city school system, she never bothered to inform the plaintiff of this change in circumstances despite the fact that it would have entitled him, under the terms of the dissolution judgment, to seek a modification of alimony. Indeed, it was not until July, 1994, that the plaintiff, as a result of his request for information, first learned of this change in circumstances.
Believing that he was due a credit, the plaintiff began withholding alimony payments on August 7, 1994, and on November 1, 1994, he filed a motion for order to determine the extent of the credit owed him by the defendant. The defendant then moved to have the plaintiff held in contempt, and the plaintiff moved for a modification of alimony. During the hearing on the motions in June, 1995, the defendant asked the court to order the plaintiff to pay alimony while the motions were pending, which the trial court declined to do. Thereafter, the trial court determined that the defendant owed the plaintiff $57,765.28. Nevertheless, the trial court, on the basis of its determination that the plaintiff wilfully had failed to pay alimony beginning in August, 1994, awarded $15,067.50 in attorney’s fees to the defendant. Under the circumstances of this case, and applying the appropriate standard of review to the
According to the dissolution decree, it was expressly contemplated that the defendant would engage in full-time employment, and that once her gross annual income from earnings exceeded $25,000, the amount of the alimony would be reduced.
We do not suggest that the defendant’s conduct excused the plaintiffs noncompliance with the dissolution court’s order. The fact that the plaintiffs position was ultimately vindicated, however, is not irrelevant to the question of whether the trial court properly awarded the defendant attorney’s fees when her motion for contempt resulted, at least in part, from her own failure for over seven years to comply with the dissolution decree. Although the decision to award attorney’s fees rests within the court’s discretion, this discretion must be exercised according to equitable principles. See DiPalma, v. Wiesen, supra, 163 Conn. 298-99. “It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with ‘clean hands.’. . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court. ... It is applied not by way of punishment but on considerations that make for the advancement of right and justice.” (Citations omitted.) Pappas v. Pappas, 164 Conn. 242, 245-46, 320 A.2d
Unlike Friedlander and Tatro, in which the reviewing courts concluded that the trial court did not abuse its discretion in awarding attorney’s fees to a party because he or she had been forced to go to court many times to assert his or her rights; Friedlander v. Friedlander, supra, 191 Conn. 86-87;
The plaintiffs transgression in this case was of limited duration. He stopped paying alimony in August, 1994, sought court intervention first in November, 1994, and then again in January, 1995, and obviously would
Under the totality of these circumstances, we conclude that the trial court’s award of attorney’s fees of $15,067.50 constituted an abuse of discretion. The defendant initially asked for attorney’s fees in the amount of $33,731.25 and a sheriffs fee for service of $67.60, based upon “computer printouts for all services rendered and the time spent on these motions between August 11, 1994 through August 30, 1995.” The trial court determined that the fees were reasonable and awarded attorney’s fees of $15,067.50, plus the sheriffs fee. There was no showing by the defendant, however, what portion of the services had been generated in connection with the plaintiffs motions and what portion was attributable to the issue of contempt. Even after this evidentiary lapse was brought to the court’s attention in the plaintiffs “motion to reopen and set aside, clarify, correct, articulate and reargue,” the trial court merely reiterated that it found the attorney’s fees reasonable. In the absence of any evidentiary relationship to the efforts expended by the defendant’s counsel on the issue of contempt, we will not presume that the plaintiff was ordered to pay the defendant’s attorney’s fees solely in connection with the contempt motion, particularly where the facts underlying the contempt were not in dispute. At most, the defendant would be entitled to those attorney’s fees incurred for the time needed to establish the allegations of contempt, which, from our review of the record, was not considerable.
The judgment of the Appellate Court is affirmed as to the issue of contempt and reversed as to the issue of attorney’s fees and the case is remanded to the Appellate Court with direction to remand the case to the
In this opinion CALLAHAN, C. J., and BORDEN, NOR-COTT and PALMER, Js., concurred.
At the time of the trial proceeding in the present appeal, both children had attained the age of majority. Eldridge v. Eldridge, supra, 4 Conn. App. 490.
General Statutes § 46b-87 provides in relevant part: “When any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt . . . .”
In the plaintiffs petition for certification, he requested that we certify the following issue: “As a matter of law, may a court hold an alimony payor in contempt for failing to pay alimony when the court simultaneously concludes that the payee owes the payor a credit for prepaid alimony exceeding the amount of the alimony arrearage?” We rephrased the certified question to read as follows: “In the circumstances of this case, did the Appellate Court properly affirm the contempt judgment rendered against the plaintiff for his failure to pay alimony to the defendant even though the alimony payments previously made by the plaintiff exceeded his liability to the defendant?” Eldridge v. Eldridge, supra, 241 Conn. 928. Therefore, although the question does not expressly include the propriety of the attorney’s fees award, we read the question broadly so as to embrace this issue as part of “the circumstances of this case.” Id.; see Schult, v. Schult, 241 Conn. 767, 776 and n.8, 699 A.2d 134 (1997) (this court may rephrase certified questions in order to render them more accurate in framing issues that case presents); Stamford Hospital v. Vega, 236 Conn. 646, 648-49 n.1, 674 A.2d 821 (1996) (same); Newman v. Newman, 235 Conn. 82, 87, 663 A.2d 980 (1995) (same).
The figure of $225,195 was the amount of credit claimed by the plaintiff. He arrived at this figure based upon his assessment of the defendant’s “gross income” derived from a variety of sources, including her employment income, voluntary payments into her pension and retirement plans and gifts from her father.
The trial court’s judgment in the dissolution action stated in relevant part: “The plaintiff is to pay to the defendant as periodic, unallocated alimony and support for herself and the minor children, the sum of $65,000 per year in twelve equal monthly installments on the tenth day of the month, beginning November 10, 1983. On the eighteenth birthday of each child, the annual amount shall be reduced by $15,000. . . .
“It is contemplated at this time that the defendant will continue her present part-time employment and that in the future, she will be employed full-time, however, such employment shall not be considered a change of circumstances until her gross annual income from earnings shall exceed $25,000. One half of the amount by which her earnings exceed $25,000 shall be deducted from the periodic unallocated alimony and support hereinbe-fore awarded.”
Although the order in the dissolution action was not as clear as it could have been, the use of the term “change of circumstances” should have alerted the plaintiff and his counsel to Hie fact that a court ordered modification was necessary. Cases interpreting that term and what is required to demonstrate that such a change has occurred are legion. See Borkowski v. Borkowski, 228 Conn. 729, 735-36, 638 A.2d 1060 (1994), and cases cited therein.
Had the plaintiff filed a motion to modify when he first learned of the defendant’s change in circumstances and had he continued to make the alimony payments, that motion could have been granted, retroactive to the date of service. See General Statutes § 46b-86 (a). Consequently, there would have been no financial disincentive in filing the motion.
The dissent would conclude that the plaintiff did not act in contempt of court largely based upon three factors: the order in the original dissolution action was self-executing, thereby eliminating the need for a motion for modification; the defendant’s July 29, 1994 letter to the plaintiff authorized him to a<Jjust his alimony payments to her; and the credit awarded to the plaintiff by the trial court implicitly recognized that the original order was self-executing because, had it not been, the credit would have been tantamount to an impermissible retroactive modification of the order. As we have stated in this opinion, we do not agree with the dissent’s characterization of
Finally, we recognize the well established legal principle that alimony may not be modified retroactively; Favrow v. Vargas, 231 Conn. 1, 38-40, 647 A.2d 731 (1994); and therefore, we also appreciate that, by treating the support order in the original dissolution action as an order requiring the court’s permission to modify, the trial court in this case should have discerned that the plaintiffs failure to file a motion to modify meant that he was not entitled to the credit for the alimony he had paid for seven years. Unlike the dissent, however, we do not interpret the order from the dissolution action to be self-executing merely to conform to the questionable award of a credit by the trial court in this case. Had the trial court characterized the order as self-executing and awarded a credit, as the dissent suggests was actually done, it would not have found the plaintiff in contempt. Obviously, the trial court did not recognize that by awarding the credit, it was functionally retroactively modifying the support order, probably because no one, including the defendant who was aggrieved by the credit, brought this matter to the court’s attention. Likewise, the assertion of an improper retroactive modification of a support order was not raised before the Appellate Court or this court, despite the representation of both parties by well respected competent counsel. Therefore, we address only the issue properly before the court and conclude that, because the order in the dissolution action was not self-executing, the trial court acted within the proper exercise of its discretion in finding that the plaintiff was in contempt of court.
The trial court relied on this change in the defendant’s circumstances to reduce her annual alimony income from $35,000 to $15,000.
In Friedlander v. Friedlander, supra, 191 Conn. 86-87, the plaintiff had to file five contempt motions in order to enforce an earlier court order. Three of 1hose motions resulted in fines, but nevertheless, the defendant continued to violate the court’s orders. An award of counsel fees of $300 was upheld. Id., 87.
Dissenting Opinion
dissenting. The majority, by affirming the trial court’s finding of contempt against the plaintiff, Stephen C. Eldridge, for failing to comply with an alimony order, condones the invocation by the defendant, Phyllis Eldridge, of the court’s power of contempt as a trial tactic. In my view, the plaintiffs failure to pay the defendant alimony under the circumstances of this case did not amount to contempt of court.
The clear language of the alimony order in this case provides that it was self-executing — that is, the plaintiff could reduce his alimony obligation to the defendant without returning to court. The trial court memorandum of decision by Hon. Irving Levine, judge trial referee, and the judgment file of November 14, 1983, provide that “ [t]he plaintiff shall pay to the defendant as periodic unallocated alimony and support for herself and the minor children the sum of $65,000 per year in twelve equal monthly installments on the tenth day of each month beginning November 10,1983. On the eighteenth birthday of each child, the annual sum shall be reduced by $15,000.” (Emphasis added.) It further provides “[o]ne half of the amount by which [the defendant’s] earnings exceed $25,000 shall be deducted from the periodic unallocated alimony and support hereinbefore awarded.” (Emphasis added.) This order with respect to earnings, like the order in the judgment reducing the plaintiffs unallocated alimony and support obligation when each child reached the age of eighteen, contains essentially the same mandatory language that it “shall” be reduced. No one questions that the order with
The majority mistakenly relies on dicta from the Appellate Court’s decision in Eldridge v. Eldridge, 4 Conn. App. 489, 493-94, 495 A.2d 283 (1985), that the order was not self-executing in order to conclude that the plaintiff could not reduce his periodic alimony payments to the defendant until he sought judicial modification of the judgment. The Appellate Court stated that the defendant’s “entitlement to alimony under the initial award would be subject to modification upon motion by the plaintiff’ when the defendant’s earnings exceeded $25,000. Id., 494. The issue before the Appellate Court, however, was not whether the order was self-executing, but, rather, whether the trial court had the power to preclude modification of the order in the future.
Moreover, the facts underlying this appeal clearly establish that the plaintiff did not act in contempt of court. It came to the attention of the plaintiff in July, 1994, that, since 1987, the annual earnings of the defendant exceeded $25,000, a fact she never disclosed to the plaintiff. The plaintiff, in a letter to the defendant dated July 10,1994, advised her that he would be reducing his periodic alimony payments and that he needed copies of her tax returns or other information so he could establish the amount of his overpayment.
The trial court’s underlying finding that the plaintiff was entitled to a credit of $57,765.78 is consistent with the characterization that the order was self-executing and is inconsistent with the determination that it was an order requiring modification. First, the trial court’s own interpretation of Judge Levine’s order was that the reduction was mandatory. The trial court found that “Judge Levine clearly stated that when the defendant’s earnings from employment exceed $25,000, one half of that amount shall be deducted . . . from the alimony order.”
Furthermore, even if the alimony reduction provision in the judgment could be construed as not being self-executing, I would still conclude that the trial court’s finding of contempt was an abuse of discretion and should be vacated. A party’s “good faith dispute or
Furthermore, it would appear to me that the majority confuses civil contempt with criminal contempt when analyzing the trial court’s order of contempt. “[A] criminal contempt is conduct that is directed against the dignity and authority of the court. In contrast, civil contempt is conduct directed against the rights of the opposing party.” Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). “[I]t is the nature of the relief itself that is instructive in
“In criminal contempt the sanction is punitive in order to vindicate the authority of the court.” (Internal quotation marks omitted.) Id. “Authority [of the court] can be and has been said to mean the [r]ight to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. . . . [It is] [o]ften synonymous with power.” (Internal quotation marks omitted.) Banks v. Thomas, 241 Conn. 569, 587, 698 A.2d 268 (1997). The majority argues that the trial court was entitled to hold the plaintiff in contempt because to exonerate him “would be an undue inducement to litigants’ exercise of self-help.” In other words, the trial court could punish the plaintiff in order to deter other litigants with alimony obligations from exercising self-help in contravention of the court’s authority. This contempt order can only be classified as criminal,
Accordingly, I dissent.
The Appellate Court identified the issue as follows: “The third claim of error raised by the plaintiff is that the trial court erred in circumscribing the discretion of a later court in determining what constitutes a substantial change of circumstances.” Eldridge v. Eldridge, supra, 4 Conn. App. 493.
“Phyllis M. Eldridge 15 Vineyard Lane Westport, Conn. 06880
July 10, 1994
Dear Phyllis,
Pursuant to our divorce decree, alimony payments to you are automatically reduced by one-half of the excess of your earnings over $25,000.
In view of the fact that you have not volunteered to inform me of the amount of your earnings, I have in good faith reasonably estimated that your present earnings are approximately $50,000 per annum. Thus, my alimony obligation is automatically reduced from $35,000 to $22,500 per annum, or from $2,916.67 to $1,875 per month. Enclosed is my check in the amount of $1,875 for July.
Please advise me (with supporting documentation) of the correct exact amount of your income for 1994 (including the remainder of the year). Only then will I be able to refine the calculation and I will immediately remit a balance due to you, if any.
Please provide me with copies of your tax returns for any prior year in which your earnings exceeded $25,000.
For your information, I am and have been unemployed for several months. Respectfully,
Stephen C. Eldridge
My Way
Weston, Ct. 06883”
“July 29, 1994
Mr. Stephen C. Eldridge
My Way
Weston, CT 06883
Dear Stephen:
I have received your July 10 letter.
First of all, you are and have been aware that I have been teaching for many, many years. In fact, the only time you raised the issue is after the children’s education has been completed. You and I have shared the educational expenses for your children equally over these many years. The reason that I was able to divide those expenses equally with you was because I was teaching and it was implicit that such contributions by me were in lieu of you receiving any credits on the payments of tax deductible alimony. Accordingly, I relied upon the same in making those voluntary and significant payments for our children’s education, which, according to my records, total $108,607.75.
Our children’s education is now almost concluded. My gross annual earnings in 1993 was $35,415. I anticipate my earnings for 1994 would be approximately the same. You are free to make the necessary computations and adjustments consistent with the provisions of the agreement for the year 1994.
Very truly yours,
Phyllis M. Eldridge”
The trial court rejected the defendant’s claim as follows: “The court finds no agreement between the parties as to payment of these college expenses nor did the plaintiff ever agree to waive his alimony credit. The court finds the defendant paid one half of two children’s college expenses voluntarily . . . .”
The trial court held: The defendant “also knew or should have known the alimony order provided a one-half credit to the plaintiff when her earnings exceeded $25,000 from her full-time employment. The court has the duty to interpret Judge Levine’s order as a matter of law. It finds an alimony credit of $57,765.78 in the plaintiff’s favor. Judge Levine clearly stated that when the defendant’s earnings from employment exceed $25,000 one half
See footnotes 2 and 3 of this dissent.
The trial court’s intention to punish the plaintiff by awarding attorney’s fees becomes clear upon reviewing its memorandum of decision. The trial
The majority also recognizes that the trial court awarded attorney’s fees to punish the plaintiff. At the end of part II of the majority opinion, in which it reverses the judgment of the Appellate Court regarding the amount of the award of attorney’s fees, the majority concludes that because the amount awarded was substantially in excess of the amount necessary to compensate the defendant, it “will not presume that the plaintiff was ordered to pay the defendant’s attorney’s fees solely in connection with the contempt motion . . . In other words, the excess attorney’s fees awarded to the defendant must have been, according to the majority, punishment.