BETSY SCALORA v. JEFFREY SCALORA
(AC 40641)
Connecticut Appellate Court
Argued December 4, 2018-officially released May 7, 2019
Lavine, Keller and Bishop, Js.
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Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court, and the plaintiff cross appealed, from the judgment of the trial court resolving several of the parties’ postdissolution motions. The dissolution judgment had incorporated a settlement agreement of the parties, which contained a nonwaiver clause and required the defendant to pay the plaintiff periodic alimony, to pay for certain expenses related to the education and activities of the parties’ children, and to maintain at his own expense an insurance policy on his life for the benefit of the plaintiff and the children. The plaintiff filed a motion for contempt, alleging, inter alia, that the defendant had failed to pay the court-ordered alimony and to maintain a life insurance policy, and sought reimbursement for, inter alia, certain expenses incurred for the benefit of the parties’ children. The defendant filed three special defenses, alleging that the motion for contempt was barred by the doctrines of laches and equitable estoppel, and that the plaintiff had waived her right to proceed with the motion. Subsequently, the defendant filed a motion for contempt, alleging that the plaintiff had improperly claimed their younger daughter as a dependent for federal income tax purposes, in violation of the settlement agreement. The defendant also filed a motion for an order requesting that the court give him credit toward any sums found owing to the plaintiff for one half of the cost he previously had paid in connection with the wedding of the parties’ older daughter. Following a hearing on the motions, the trial court issued a memorandum of decision rejecting the defendant‘s defenses and granting in part the plaintiff‘s motion for contempt with respect to the defendant‘s nonpayment of alimony and failure to maintain life insurance. The court denied the remainder of the plaintiff‘s motion for contempt but issued remedial orders requiring the defendant to reimburse the plaintiff for, inter alia, the cost incurred to maintain life insurance coverage on the defendant and for certain expenses related to the education and activities of the parties’ children. The court granted in part the defendant‘s motion for contempt and held the plaintiff in contempt for improperly claiming the dependency exceptions, but denied the defendant‘s motion for an order claiming credit for one half of the cost of the wedding. Held:
1. The defendant could not prevail on his claim that the trial court abused its discretion in rejecting his defenses of laches, equitable estoppel, and waiver without first fully considering the elements of each; that court properly determined that the nonwaiver provision in the parties’ separation agreement, which provided that either party‘s failure to seek enforcement of the agreement would not constitute a waiver of his or her right to do so at any later time, barred all of the defendant‘s defenses, as that provision entitled the plaintiff to file her motion for contempt at any time without regard to the issue of delay, and the defendant failed to make any claim that the nonwaiver provision was unenforceable or that the parties either occupied unequal bargaining positions or engaged in sharp dealing.
2. The trial court improperly took judicial notice of the reasonable cost of clothing in ordering the defendant to reimburse the plaintiff for expenses she had incurred relating to the parties’ younger daughter; although the approximate price range of various categories of clothing may be common knowledge and the actual price of specific articles of clothing may be readily ascertainable, the reasonableness of an allowance for the periodic purchase of such items cannot be deemed so well known that evidence to prove it is unnecessary, as the reasonableness of an allowance for clothing depends on a wide range of factors and is subject to reasonable dispute, and, therefore, whether a particular clothing allowance is reasonable is not within the knowledge of people generally in the ordinary course of human experience and was not the proper
subject matter of judicial notice, especially without giving the parties an opportunity to be heard; moreover, even if it was improper for the court to take judicial notice of the cost of a meal plan at the university attended by the parties’ daughter at a point in time outside of her attendance dates, that fact played no role in the court‘s determination of the defendant‘s food expense arrearage and could not have prejudiced the defendant.
3. The trial court did not abuse its discretion in denying the defendant‘s motion for an order seeking credit toward the claimed arrearages for one half of the cost of the wedding of the parties’ older daughter; that court‘s finding that the plaintiff lacked substantial income and therefore had not agreed to share the cost of the wedding was not clearly erroneous, as the plaintiff testified that she had been struggling with significant debt around the time of the wedding and that she was in no position to pay for one half of the cost of the wedding given her annual income at the time, which was the same amount as the cost of the wedding venue alone, and the defendant‘s claim that the plaintiff induced him to believe that she would credit her share of the wedding toward what the defendant owed her was contradicted by the plaintiff‘s testimony that she never agreed to allow the defendant to do something else in lieu of making support payments and never agreed to waive any of the defendant‘s obligations under the separation agreement.
4. The trial court abused its discretion in finding the defendant in contempt for failing to maintain a life insurance policy at his own expense in accordance with the parties’ settlement agreement; although the evidence demonstrated that the plaintiff had purchased, with the defendant‘s consent, an insurance policy on his life when the defendant‘s own policy had lapsed in 2010, the record was not clear whether the defendant also had maintained his own life insurance policy during the relevant postjudgment period or whether the policy purchased by the plaintiff had supplemented or replaced the defendant‘s own policy, the trial court expressly acknowledged in its memorandum of decision that there were unanswered questions with regard to the defendant‘s maintenance of a life insurance policy, and, therefore, the court could not have properly concluded that the plaintiff had sustained her burden of proving by clear and convincing evidence that the defendant had failed to maintain a life insurance policy at his own expense in violation of the settlement agreement.
5. This court declined to review the defendant‘s claim that the trial court abused its discretion by establishing a schedule for making payments on the arrearage without first obtaining evidence regarding his ability to pay; the parties focused almost entirely on the merits of the motions at the hearing and did not present any evidence regarding their financial circumstances at that time, and neither party filed an updated financial affidavit or made any objection at the time of the orders that the court had not considered their financial circumstances.
6. The defendant could not prevail on his claim that the trial court abused its discretion in declining to award him attorney‘s fees in connection with his motion for contempt; the defendant‘s sole argument was that he should be awarded attorney‘s fees if the plaintiff prevailed in her cross appeal on her claim for attorney‘s fees, and his claim necessarily failed in light of this court‘s determination that the plaintiff‘s claim was not reviewable.
The plaintiff‘s claims, raised in her cross appeal, that the trial court abused its discretion in declining to award her attorney‘s fees in connection with her motion for contempt and challenging the trial court‘s interpretation of a certain provision of the parties’ separation agreement were not reviewable, the plaintiff having failed to brief the claims adequately.
Argued December 4, 2018-officially released May 7, 2019
Procedural History
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Hon. John D. Brennan, judge trial referee; judgment dissolving the marriage and granting certain other relief in accordance with the parties’ separation agreement; thereafter, the court, Hon. Gerard I. Adelman, judge trial referee,
granted in part the plaintiff‘s motion for contempt and issued certain remedial orders, and granted in part the defendant‘s motion for contempt and motion for order, and the defendant appealed and the plaintiff cross appealed to this court. Reversed in part; further proceedings.
John A. Barbieri, with whom was Claudia R. Barbieri, for the appellant-cross appellee (defendant).
Jeremiah J. Morytko, for the appellee-cross appellant (plaintiff).
Opinion
The plaintiff cross appeals from the court‘s judgment, claiming that the court (1) abused its discretion in declining to award her attorney‘s fees and costs in relation to her motion for contempt and (2) improperly implied a reasonableness standard into the parties’ separation agreement, which had been incorporated into the judgment of dissolution. We agree with the defendant‘s second and fourth claims and decline to address the merits of the plaintiff‘s claims due to her failure to brief them adequately. Accordingly, we affirm in part and reverse in part the judgment of the trial court.
The following procedural history is relevant to our resolution of the appeal and cross appeal. The court, Hon. John D. Brennan, judge trial referee, dissolved the parties’ marriage on February 8, 2008. At the time, the parties’ two daughters were eighteen and fifteen years old, respectively. The court found that the parties’ marriage had broken down irretrievably and accepted, as fair and equitable, their written separation agreement, which it incorporated by reference into the dissolution judgment.
Pursuant to the separation agreement, the defendant was required, inter alia, to pay the plaintiff periodic alimony in a prescribed amount, to pay for the plaintiff‘s medical insurance premiums for a period of time, to pay for certain activity and education related expenses for the children, and to maintain, at his own expense, an appropriate life insurance policy on his life for the benefit of the plaintiff and the children. The agreement also contained a nonwaiver clause providing that either party‘s failure to seek enforcement of the agreement would not constitute a waiver of his or her right to do so at any later time.
On September 16, 2015, the plaintiff filed a motion for contempt alleging that the defendant had failed to satisfy his obligations under the separation agreement.2 As clarified in her posthearing brief, the plaintiff
claimed, inter alia, unpaid alimony for the period from 2010 up until her remarriage in 2015, reimbursement for her medical insurance premiums, reimbursement for life insurance premiums for a policy she had taken out on the defendant‘s life from 2010 through 2014, and reimbursement for various activity and education related costs she had incurred for the benefit of the children between 2010 and 2014.
On November 29, 2016, the defendant filed three defenses to the plaintiff‘s motion for contempt. First, the defendant alleged that the plaintiff was guilty of laches by inexcusably waiting until 2015 to file a motion for contempt for arrearages that had begun to accrue in 2010, thereby prejudicing him. Second, the defendant alleged that the plaintiff was equitably estopped from pursuing her contempt motion because he had relied to his detriment on the
The matter was heard by the court, Hon. Gerard I. Adelman, judge trial referee, over the course of four days between February and May, 2017. Also, on April 20, 2017, the defendant filed a motion for contempt alleging that the plaintiff had improperly claimed the younger daughter as a dependent for federal income tax purposes for the years 2009, 2011, and 2013.3 The defendant also filed a motion for an order requesting, inter alia, that the court give him credit for one half of the cost of the older daughter‘s 2014 wedding toward any sums found owing to the plaintiff. By consent of the parties, the court heard the defendant‘s two motions as part of the proceeding on the plaintiff‘s motion for contempt on May 9, 2017.
On June 27, 2017, the court issued a memorandum of decision responding to all of the parties’ pending motions. The court rejected the defendant‘s defenses and granted the plaintiff‘s motion for contempt with respect to the defendant‘s nonpayment of alimony and failure to maintain life insurance. The court denied the remainder of the plaintiff‘s motion but issued remedial orders requiring the defendant to reimburse the plaintiff for the cost of her medical insurance premiums, certain education related expenses for the younger daughter, and the children‘s activity related expenses. As to the defendant‘s motions, the court found the plaintiff in contempt for improperly claiming the dependency exemptions. The court denied his claim for credit for one half of the cost of the older daughter‘s wedding.
This appeal and cross appeal followed. Additional procedural history will be set forth as necessary.
I
THE DEFENDANT‘S APPEAL
The defendant first claims that the court abused its discretion in rejecting his defenses without having fully considered the elements of each. Because the court properly determined that the defendant‘s defenses were barred by the nonwaiver clause of the parties’ separation agreement, any inadequacy in the court‘s consideration of the elements of each defense is inconsequential to our analysis. We therefore reject this claim.
Initially, we set forth the applicable standard of review. Ordinarily, the determination of whether a plaintiff‘s claim is barred by the doctrines of laches, equitable estoppel, or waiver is a question of fact and, therefore, subject to the clearly erroneous standard of review. See Kasowitz v. Kasowitz, 140 Conn. App. 507, 513, 59 A.3d 347 (2013); Culver v. Culver, 127 Conn. App. 236, 244-45, 17 A.3d 1048, cert. denied, 301 Conn. 929, 23 A.3d 724 (2011); Ford v. Ford, 72 Conn. App. 137, 141-42, 804 A.2d 215 (2002). In the present case, however, the court relied on the legal effect of the nonwaiver clause of the parties’ separation agreement in rejecting the defendant‘s defenses. The parties do not claim, and we do not find any basis for concluding, that this clause is ambiguous. Consequently, our standard of review is plenary. See Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 119 Conn. App. 703, 711-12, 989 A.2d 1075 (2010)
Before discussing the legal effect of the nonwaiver clause in the present case, we briefly review the law governing the defenses of laches, equitable estoppel, and waiver. “Laches is an equitable defense that consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.” (Internal quotation marks omitted.) Kasowitz v. Kasowitz, supra, 140 Conn. App. 513. “Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct. . . . [E]stoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” (Citation omitted; internal quotation marks omitted.) Culver v. Culver, supra, 127 Conn. App. 244. “Waiver is the intentional relinquishment of a known right. . . . Waiver need not be express, but may consist of acts or conduct from which
a waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Carpender v. Sigel, 142 Conn. App. 379, 388, 67 A.3d 1011 (2013).
In the present case, not only did the parties’ separation agreement expressly foreclose waiver by the mere passage of time, it affirmatively granted to each party the right to enforce the dissolution judgment at any later time. Pursuant to paragraph 15.1 of the agreement, “[n]o failure to assert any right, or to enforce any provision of [the] [a]greement shall operate as a waiver of such right or provision, and either party shall be fully privileged to assert or enforce such right or provision at any later time.” (Emphasis added.) On the basis of the parties’ express agreement, the plaintiff was entitled to file her motion for contempt at any time without regard to the issue of delay. Consequently, the defendant‘s defense of laches necessarily fails.
The defendant‘s equitable estoppel and waiver defenses similarly must fail. As this court has observed, albeit in the context of commercial agreements, an enforceable nonwaiver clause “bar[s] the application of waiver and estoppel defenses unless a party establishes the existence of unequal bargaining positions or ‘sharp dealing.’ See Christensen v. Cutaia, 211 Conn. 613, 619-20, 560 A.2d 456 (1989); S.H.V.C., Inc. v. Roy, 188 Conn. 503, 507, 450 A.2d 351 (1982); see also Webster Bank v. Oakley, 265 Conn. 539, 549-51, 830 A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d 244 (2004).” Milford Paintball, LLC v. Wampus Milford Associates, LLC, 137 Conn. App. 842, 853 n.8, 49 A.3d 1072 (2012). The defendant does not contend that the nonwaiver clause in the present case is unenforceable or that the parties either occupied unequal bargaining positions or engaged in “sharp dealing,” and the court made no such findings.4 Consequently, the
B
The defendant next claims that the court improperly took judicial notice of certain facts in ordering him to reimburse the plaintiff for education related expenses incurred for the benefit of the younger daughter.5 We agree.
We begin by stating our standard of review. “A trial court‘s determination as to whether to take judicial notice is essentially an evidentiary ruling, subject to an abuse of discretion standard of review. . . . In order to establish reversible error, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse. . . . In reviewing a trial court‘s evidentiary ruling, the question is not whether any one of us, had we been sitting as the trial judge, would have
exercised our discretion differently . . . Rather, our inquiry is limited to whether the trial court‘s ruling was arbitrary or unreasonable.” (Citation omitted; footnote omitted; internal quotation marks omitted.) In re Natalie J., 148 Conn. App. 193, 207, 83 A.3d 1278, cert. denied, 311 Conn. 930, 86 A.3d 1056 (2014).
“The doctrine of judicial notice excuses the party having the burden of establishing a fact from introducing formal proof of the fact. Judicial notice takes the place of proof.” (Internal quotation marks omitted.) Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 730 n.24, 652 A.2d 496 (1995). “There are two types of facts considered suitable for the taking of judicial notice: those [that] are common knowledge and those [that] are capable of accurate and ready demonstration. . . . Courts must have some discretion in determining what facts fit into these categories. It may be appropriate to save time by judicially noticing borderline facts, so long as the parties are given an opportunity to be heard.” (Citation omitted; internal quotation marks omitted.) Ferraro v. Ferraro, 168 Conn. App. 723, 732, 147 A.3d 188 (2016); see
The following additional procedural history is relevant to our resolution of the defendant‘s claim. Pursuant to paragraph 3.3 of the separation agreement, the defendant was required to pay for “the post-secondary education in college or for any further learning and training beyond high school for each child, including tuition, room, board, books, fees, clothes and necessary transportation and travel costs.” During the proceeding on her motion for contempt, the plaintiff argued that this provision clearly and unambiguously required the defendant to pay, without limitation, for any and all of the children‘s food and clothing expenses incurred while they were at college or graduate school. The court disagreed and, instead, imported the notion that such expenses, if subject to reimbursement, must have been reasonable when incurred.
As to food expenses, the court first determined that, in light of the fact that the younger daughter had been enrolled in a meal plan offered by her university, the provision was ambiguous as to whether the use of the term “board” encompassed food purchased outside the meal plan. The court concluded that, “construing the
language of the separation agreement in a ‘sensible manner’ . . . the [defendant] should not be required to reimburse the [plaintiff] for each and every grocery purchase.” (Citation omitted.) The court further noted, however, that there may have been instances where, although at university, the younger daughter was not able to utilize her meal plan and therefore required funds with which to purchase food elsewhere, such as while traveling to and from school or when her commitments as part of the university‘s soccer team prevented her from accessing the campus dining hall. The court found that, “[i]n these situations, it would appear that the [defendant] could reasonably be expected to pay for [her] food pursuant to the terms of the separation agreement.”
As to clothing expenses, the court determined that paragraph 3.3 was ambiguous as to whether the “clothes” referenced therein were limited to items normally associated with college living, as opposed to, for example, formal wear to attend family weddings. Construing the relevant contract language in a “fair and reasonable” manner, the court concluded that the defendant‘s obligation was limited to providing each child “with a reasonable wardrobe for her educational needs.”
Having construed paragraph 3.3 as limiting the defendant‘s obligation to reasonable food and clothing costs, the court next sought to determine what such costs would be. The court first noted that the plaintiff had not offered any evidence on this issue; rather, she had only presented invoices for what she had actually spent.8 The record reflects, as well, that neither
Regarding the younger daughter‘s food expenses while on campus, the court took judicial notice of the cost of a typical meal plan for the 2016-17 academic year at the University of Pennsylvania,11 which she had attended from 2010 to 2014.12 As to her food expenses when off campus, such as when traveling to and from school or while engaged in soccer related activities, the court found that “the sum of $75 weekly as a supplement is reasonable . . . .” As to food expenses when she remained on campus between semesters for athletics, the court found that “perhaps another $600” would be reasonable. As for clothing expenses, the court found
that “a clothing allowance of $200 per month [for each child] is . . . more than adequate
On the basis of these judicially noticed “facts,”13 the court calculated the younger daughter‘s annual food expenses beyond her meal plan to be $3900 and her annual clothing expenses to be $1680.14 Crediting the defendant for funds he had provided directly to the younger daughter,15 the court determined the defendant‘s arrearage for food and clothing expenses from 2010 through 2015 to be $13,915.16
The defendant first claims that the court abused its discretion in taking judicial notice of the cost of a meal plan at the University of Pennsylvania. The defendant argues that it was improper for the court to take judicial notice of the dining cost during the 2016-17 academic year because the younger daughter had attended the university between 2010 and 2014, when such costs were lower.17 The defendant also argues that it was improper for the court to have taken judicial notice of this fact without first affording the parties an opportunity to be heard. This claim requires little discussion.
The defendant also claims that the court abused its discretion in taking judicial notice of the reasonable
cost of clothing.18 The defendant argues that the court improperly and arbitrarily found, as a matter of judicial notice, that a reasonable monthly clothing allowance for a college student is $200. He also argues that it was improper to notice such a “fact” without affording the parties notice and an opportunity to be heard.19 We agree with the defendant‘s arguments in this regard.
C
The defendant next claims that the court abused its discretion in denying his motion for an order seeking credit for one half of the cost of the older daughter‘s wedding toward the claimed arrearages. We disagree.
We begin by stating our standard of review. “[O]ur courts have recognized that the decision to allow or disallow credit lies within the sound discretion of the trial court.” (Internal quotation marks omitted.) Rostad v. Hirsch, 148 Conn. App. 441, 464, 85 A.3d 1212 (2014), appeals dismissed, 317 Conn. 290, 116 A.3d 307 (2015); accord Culver v. Culver, supra, 127 Conn. App. 248. “An appellate court will not disturb a trial court‘s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Furthermore, [t]he trial court‘s findings [of fact] are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Merk-Gould v. Gould, 184 Conn. App. 512, 516-17, 195 A.3d 458 (2018).
The following additional procedural history is relevant to our resolution of this claim. At trial, the defendant testified that the plaintiff had told him that “she would be responsible for half of the wedding“-whatever the total cost was-and that she had offered to give him credit for this amount toward his obligations under the separation agreement. The plaintiff, however, testified that she never agreed to pay for any portion of the wedding, let alone share the cost of it with the defendant, and that she never agreed, whether in writing or otherwise, to waive any of the terms of the agreement. Moreover, the plaintiff testified that she had explicitly told the defendant that she could not afford to share the cost of the wedding. Specifically, she testified that, after she and the defendant met with the manager of a prospective wedding venue, which was projected to cost approximately $25,000,21 she told the defendant that there was “no way [she could] contribute to this.” According to the plaintiff, the defendant responded, “I‘ve got this. Don‘t worry. I just need to know how much.”
In his posthearing brief, the defendant argued that the plaintiff had acknowledged responsibility for one half of the wedding expenses and that, had he known that the plaintiff planned to file a motion for contempt after the wedding, “he would have bargained [for] a
reduction in the alimony and child support arrearage in lieu of payment for [the] plaintiff‘s share of the wedding.”22
On appeal, the defendant first claims that the court‘s finding that the plaintiff lacked “substantial” income is clearly erroneous. We disagree. The plaintiff testified that she had been “struggling with significant debt” around the time of the wedding, having had to resort to credit cards and loans from her parents in order to meet the children‘s needs after the defendant‘s support payments became sporadic.23 The plaintiff further testified that her annual income at the time had been only about $25,000 and that, consequently, she had not been in a position to pay for half of the wedding. Given this testimony and the fact that the cost of the wedding venue alone was anticipated to be $25,000, the court‘s finding that the plaintiff lacked “substantial” income to share the cost of the wedding is not clearly erroneous.24
The defendant also claims that the court abused its discretion “by making the assumption that [the] plaintiff could not credit” him for a share of the wedding costs. The defendant argues that the plaintiff had “intended to induce [him] to believe that she would credit [these costs toward] what he owed her, and [that he had] acted on that belief, to his detriment.” We are not persuaded.
Preliminarily, we note the lack of any apparent connection between the defendant‘s argument and his particular abuse of discretion claim. Even if this connection were readily discernable, however, the claim still fails. Integral to the defendant‘s argument is his assertion that his “testimony, which was undisputed by the plaintiff, clearly articulate[d] that the plaintiff would allow a credit for the wedding expenses . . . .” (Emphasis added.) This assertion is belied by the record. The plaintiff testified that she never agreed to allow the defendant to do “something else in lieu
D
The defendant next claims that the court abused its discretion in finding him in contempt for failing to maintain a life insurance policy at his own expense. The defendant argues that the court improperly determined that the plaintiff had sustained her burden of proof where the court noted in its memorandum of decision
that the plaintiff‘s claim was “not entirely clear” and that there remained certain “unanswered questions” regarding the claim. We agree with the defendant.
“[O]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court‘s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.
“The abuse of discretion standard applies to a trial court‘s decision on a motion for contempt. . . . A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. . . . To constitute contempt, a party‘s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . A finding of indirect civil contempt must be supported by clear and convincing evidence. . . .
“[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful. . . . [A] contempt finding is not automatic and depends on the facts and circumstances underlying it. . . . [I]t is well settled that the inability of [a] defendant 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. . . . It is [then] within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure.” (Citations omitted; internal quotation marks omitted.) Bolat v. Bolat, 182 Conn. App. 468, 479-80, 190 A.3d 96 (2018).
The following additional procedural history is relevant to our resolution of this claim. Paragraph 6.1 of the separation agreement provides in relevant part: “By way of additional support, the [defendant] shall obtain and maintain in full force and effect, at his own expense, life insurance on his life in the amount of [$250,000], with the [plaintiff] as the primary beneficiary. The beneficiaries of this policy shall be designated as follows: $125,000 for the [plaintiff]; and $125,000 to a trust for the children with each child to receive an equal share of the life insurance benefit. Upon the youngest living child of the parties reaching the age of twenty-three . . . or completing a college education . . . whichever
is the first to occur, the [defendant] may change the beneficiary of $125,000 of the total policy value. Upon the [defendant‘s] alimony obligation terminating, then the [defendant] may change the
During the hearing on her motion for contempt, the plaintiff testified that the defendant had failed to maintain his own life insurance policy, as required by paragraph 6.1 of the separation agreement, for the years 2010 through 2014. She testified that the defendant had admitted to her that he had not complied with this requirement and that, consequently, she took out her own policy on the defendant‘s life, with his consent.25 According to the plaintiff, she paid $165.72 for a partial year of coverage in 2010 and then $662.88 annually for the succeeding four years, and the defendant never reimbursed her for any of it. The plaintiff also testified that she had taken out a loan in order to pay for the policy and that she had paid $375 per year in interest on the loan.
During cross examination, the defendant initially appeared not to dispute that he had failed to maintain his own life insurance policy. When asked whether he had maintained the $250,000 policy specified in the separation agreement, the defendant responded that this had been the plaintiff‘s responsibility and that he had cooperated with her in obtaining the policy by allowing his blood to be drawn. After later conceding that it had been his responsibility under the agreement to maintain an appropriate policy, the defendant appeared to reverse course and suggest that he had, indeed, purchased such policy. More specifically, when again asked whether he recalled ever having purchased the requisite $250,000 policy, the defendant responded, “[g]reater than that.”
In its memorandum of decision, the court found that “the defendant [had] acknowledged that the policy he had at the time of the dissolution of the marriage lapsed in 2010, and that the plaintiff [had] purchased a substitute policy at her expense.” The court further found, however, that the plaintiff‘s claim was “not entirely clear,” noting that the defendant had testified that he had “maintained life insurance above the required amount throughout the postjudgment period”26 but had “offered no specifics [and had admitted that] he allowed the plaintiff to purchase a policy on his life as well.” More specifically, the court stated: “It is not entirely clear from the testimony and evidence whether [the plaintiff‘s] policy supplemented [the defendant‘s] coverage or was a replacement. If it was a replacement policy, for how long was it necessary if the defendant also had life insurance coverage?” The court then concluded that, “[g]iven some of the unanswered questions on this issue, [the] reduced amount [claimed in the plaintiff‘s posthearing brief of $2817.24] is a fair claim.”27 Without
any further discussion,
We agree with the defendant that the court improperly concluded that the plaintiff had met her burden of proof. Although the plaintiff‘s motion for contempt did not specify the manner in which the defendant had allegedly violated paragraph 6.1, it is apparent from her testimony that her theory of the case was that, during the period at issue, the defendant had failed to maintain any life insurance coverage whatsoever.28 Consequently, the plaintiff, as the party seeking a finding of indirect civil contempt, had the burden of establishing by clear and convincing evidence that the defendant had not had his own life insurance policy in effect during the relevant timeframe. See Brochard v. Brochard, 185 Conn. App. 204, 221, 196 A.3d 1171 (2018). Although the court credited the plaintiff‘s testimony that she had purchased her own policy on the defendant‘s life, it was unable to determine whether her policy replaced a policy that the defendant had allowed to lapse-which would be consistent with her testimony that the defendant had not maintained his own policy during the period in question-or merely “supplemented [the defendant‘s] coverage“-which, contrary to the plaintiff‘s testimony, would imply that the defendant had indeed maintained his own coverage during the relevant period, although perhaps not in the amount required by the separation agreement. By characterizing this issue as an “unanswered question,” the court, in effect, acknowledged that it was not persuaded by the plaintiff‘s testimony that the defendant had entirely failed to maintain a life insurance policy of any kind. In light of this implicit acknowledgment, the court could not properly have concluded that the plaintiff had sustained her burden of proving by clear and convincing evidence that the defendant had failed to maintain a life insurance policy at his own expense. The court, therefore, abused its discretion in finding the defendant in contempt for noncompliance with paragraph 6.1 of the agreement. Accordingly, the judgment of contempt must be reversed with respect to the issue of life insurance coverage, and the resultant remedial order must be vacated.
E
The defendant next claims that the court abused its discretion by crafting an arrearage payment schedule “without obtaining any evidence of his current or future ability to pay.” We decline to review this claim.
The following additional procedural history is relevant to our resolution of the defendant‘s claim. The court found the defendant in contempt for nonpayment of alimony and failure to maintain life insurance and awarded the plaintiff $80,042 in unpaid alimony and $2817.24 as reimbursement for the expenses she
incurred in maintaining her own insurance policy on the defendant‘s life. The court denied the remainder of the plaintiff‘s motion but found that the defendant owed her $2929 as reimbursement for the plaintiff‘s medical insurance premiums, $13,915 as reimbursement for the younger daughter‘s food and clothing expenses, and $4676.60 as reimbursement for the children‘s activity related costs. As to the defendant‘s motions, the court found the plaintiff in contempt for improperly claiming the dependency
“As a general rule, the financial awards in a marital dissolution case should be based on the parties’ current financial circumstances to the extent reasonably possible.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 846, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). Thus, this court has held it to be an abuse of discretion for a trial court to issue financial orders in a marital dissolution case without considering the parties’ financial circumstances where the parties had submitted evidence on the subject; see id. (trial court erred in failing to consider defendant‘s financial affidavit in ruling on plaintiff‘s postdissolution motion to terminate, reduce, or modify his alimony obligation to defendant); Cuneo v. Cuneo, 12 Conn. App. 702, 709, 533 A.2d 1226 (1987) (trial court erred in refusing to consider defendant‘s updated financial affidavit in issuing orders regarding unallocated alimony and support and division of parties’ assets and liabilities); or had been denied the opportunity to do so. See Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 435, 759 A.2d 1050 (2000) (where court had led parties to believe that it would not make any financial orders in ruling on certain postdissolution motions, it was abuse of discretion to issue financial orders without having before it parties’ financial affidavits).
In the present case, neither party filed an updated financial affidavit or offered any evidence of his or her financial circumstances at that time.29 Nor did the parties make any objection at the time of the orders that
the court had not considered their financial conditions. Thus, both parties effectively invited the court to focus solely on the merits of their motions without reference to their current finances. “If counsel has full knowledge of improper conduct (or what he perceives to be improper procedure) he cannot remain silent, hoping for a favorable ruling, and then be heard to complain when the order is unsatisfactory.” (Internal quotation marks omitted.) Bielen v. Bielen, 12 Conn. App. 513, 515, 531 A.2d 941 (1987). Under these circumstances, we decline to review the defendant‘s claim.30 See Tufano v. Tufano, 18 Conn. App. 119, 124-26, 556 A.2d 1036 (1989) (declining to review plaintiff‘s claim, that trial court erred in imposing contempt sanctions given her lack of financial ability to purge herself by payment, where she offered no evidence regarding her current financial condition and did not object to court proceeding without such evidence); Bielen v. Bielen, supra, 515 (declining to review defendant‘s claim that court improperly refused to consider parties’ current financial positions in ruling on postdissolution motion for attorney‘s fees because, although this normally would constitute error, neither party offered evidence thereon or objected to court proceeding without such evidence).
F
Finally, the defendant claims that the court abused its discretion in declining to award him attorney‘s fees in relation to his motion for contempt. The defendant‘s sole argument in support of this claim is that he should be awarded attorney‘s fees if the plaintiff prevails in her cross appeal on her claim for attorney‘s fees. Because we decline to review the plaintiff‘s claim; see part II of this opinion; the defendant‘s claim necessarily fails.
II
THE PLAINTIFF‘S CROSS APPEAL
In her cross appeal, the plaintiff claims that the court (1) abused its discretion in declining to award her attorney‘s fees and costs in relation to her motion for contempt and (2) improperly implied a reasonableness standard into paragraph 3.3 of the parties’ separation agreement.31 We decline to review these claims because they are inadequately briefed.
Regarding attorney‘s fees, the plaintiff argues that, absent some showing by the defendant that he had been unable to pay the full amount of alimony due, “the plaintiff should have been made whole for having to bring this action to recover alimony . . . .” The plaintiff addresses this claim in less than one page of her appellate brief, provides no citation to authority, and provides no analysis of the claim.
Regarding the interpretation of paragraph 3.3 of the separation agreement, the plaintiff first challenges the court‘s determination that this provision was ambigu-
ous. Rather than explicate why the court‘s underlying reasoning was erroneous or engage in any meaningful analysis of the language of paragraph 3.3, the plaintiff simply cites to the text of the provision, acknowledges the correctness of the court‘s recitation of the boilerplate law of contract interpretation, and asserts in a conclusory fashion that the agreement clearly and unambiguously made the defendant “responsible [for] virtually every
The plaintiff also challenges the court‘s construction of the separation agreement as limiting the defendant‘s responsibility to reasonable food and clothing expenses. The plaintiff argues that, even if the agreement is ambiguous, the court erred in failing to consider evidence that the defendant had paid every bill received from the plaintiff from the date of dissolution until 2010. According to the plaintiff, this evidence demonstrates that the intent and expectation of the parties was that the defendant was required to perform his obligations “without limitation on the reasonableness of expenses . . . .” The plaintiff devotes one paragraph to this argument and cites no legal authority to support it.
In sum, the plaintiff has failed to brief adequately the claims raised in her cross appeal, and, consequently, we deem them abandoned. “Claims are inadequately briefed when they are merely mentioned and not briefed beyond a bare assertion. . . . Claims are also inadequately briefed when they . . . consist of conclusory assertions . . . with no mention of relevant authority and minimal or no citations from the record . . . .” (Internal quotation marks omitted.) Estate of Rock v. University of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016). “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Citation omitted; internal quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016). Accordingly, we affirm the judgment of the trial court with respect to the issues raised by the plaintiff‘s cross appeal.
The judgment is reversed in part with respect to the arrearage order attributable to clothing expenses and the case is remanded for further proceedings consistent with this opinion; the judgment of contempt is reversed in part as to the defendant‘s failure to maintain a life
insurance policy, and the resultant remedial order is vacated; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
this opinion, but determined that many of these expenditures were unreasonable.
be $25,000, it was reasonable for the court to deem it unlikely that she would have agreed to split the cost of the wedding. Moreover, “[t]he trial judge, as the finder of fact in this case, was the sole arbiter of credibility. [I]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court‘s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed.” (Internal quotation marks omitted.) Levinson v. Lawrence, 162 Conn. App. 548, 561-62, 133 A.3d 468 (2016).