Brody v. Brody ( 2015 )

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FELICIA PIEROT BRODY v. CARY BRODY
(SC 19037)
Rogers, C. J., and Palmer, Zarella, Eveleigh and Robinson, Js.
Argued September 15, 2014—officially released January 13, 2015
Kenneth J. Bartschi, with whom were Brendon P.
Levesque, and, on the brief, M. Caitlin S. Anderson,
for the appellant (defendant).
Gary I. Cohen, for the appellee (plaintiff).
Opinion
ROBINSON, J. The defendant, Cary Brody, appeals,
upon our grant of his petition for certification,1 from
the judgment of the Appellate Court affirming the judg-
ment of the trial court dissolving his marriage to the
plaintiff, Felicia Pierot Brody, and awarding her a $2.5
million lump sum alimony payment, and likewise
affirming the trial court’s postjudgment order finding
the defendant in contempt for failing to turn over certain
property to a third party bailee. Brody v. Brody, 136
Conn. App. 773, 776, 51 A.3d 1121 (2012). On appeal, the
defendant claims that the Appellate Court improperly
concluded that: (1) the alimony award was not based
on a finding that he had committed adultery; (2) the
alimony award did not violate the parties’ prior written
stipulation releasing the defendant from ‘‘any and all
claims’’ arising from certain financial misconduct he
allegedly committed during the marriage; and (3) a pre-
ponderance of the evidence standard of proof governs
indirect civil contempt proceedings.2 We disagree with
the defendant’s claims challenging the Appellate Court’s
decision to uphold the trial court’s alimony award, but
agree with his claim regarding the standard of proof
governing indirect civil contempt proceedings. Specifi-
cally, we conclude that the defendant is entitled to a
new hearing with respect to the trial court’s April 28,
2011 postjudgment order because findings of indirect
civil contempt must be supported by clear and convinc-
ing evidence. Accordingly, we affirm in part and reverse
in part the judgment of the Appellate Court.
The Appellate Court’s opinion aptly sets forth the
following relevant facts and procedural history. ‘‘The
parties met in 1997 and started dating shortly thereafter.
. . . [I]n 1998, [the defendant] started his own hedge
fund, named Colonial Fund, LLC (fund). The plaintiff
assisted the defendant in establishing the fund, making
an initial investment of $250,000 . . . [and] loaning the
fund $600,000 for working capital . . . .
‘‘In April, 2000, the parties decided to marry. . . . At
the time of their marriage, the defendant’s net worth
was approximately $46 million and the plaintiff’s net
worth was approximately $29 million. . . . Their first
child was born in September, 2002. . . .
‘‘The parties enjoyed a comfortable lifestyle fueled
by the defendant’s successes at work, and they had a
second child. Between 2003 and 2004, the plaintiff made
investments totaling $2,650,000 in the fund on behalf
of herself and her children.
‘‘During this time, however, the parties began dis-
cussing what the plaintiff perceived as the excessive
spending of the defendant. Between 2005 and 2008, the
plaintiff expressed to the defendant her unhappiness
with his purchases of two airplanes, a wine cellar cost-
ing in excess of $100,000 and Ferrari automobiles. The
defendant was drinking alcoholic beverages more than
he had earlier in the marriage, and he was becoming
verbally abusive of the plaintiff. From 2007 to 2008,
the defendant continued to be verbally abusive of the
plaintiff and started to become aggressive sexually with
her. The plaintiff made it clear to the defendant that
she was unhappy with his behavior, but the defendant
was unreceptive to her concerns.
‘‘Unknown to the plaintiff, the defendant’s income
had started to decline in 2005. In 2007, the defendant’s
partner in the fund called the plaintiff to inform her
of significant losses in the fund and of hidden trades
engaged in by the defendant. In October, 2007, the plain-
tiff learned, when it was announced publicly, that the
Securities and Exchange Commission was prosecuting
the fund and the defendant personally. The defendant
had been aware of this investigation since July, 2003,
but he had not told the plaintiff about it. The defendant
assured the plaintiff that she did not have to worry,
and the plaintiff continued to support the defendant.
In May, 2008, the defendant accepted delivery of a new
Ferrari.’’ Id., 776–78.
The record further reveals that, in May, 2008, the
plaintiff first learned that the fund was freezing its inves-
tor accounts in order ‘‘to ensure that [it] held enough
in its reserves to meet the potential . . . litigation
expense.’’ This freeze prevented investors, like the
plaintiff, from receiving more than 30 percent of their
balances. Meanwhile, as the managing member of the
fund, ‘‘the defendant redeemed money of his own funds
without any apparent holdback.’’ The plaintiff would
later bring a demand for arbitration against the fund
and the defendant personally, claiming that their mis-
feasance jeopardized her investments.
‘‘In June, 2008, the plaintiff discovered unused con-
doms in the defendant’s toiletries bag when he returned
from a five day trip to California. According to the
[plaintiff] . . . the defendant had not used condoms in
the marriage for the past three years. . . . [The defen-
dant asserted] that he used the condoms in the marriage
when his sexually transmitted disease was active and
that he used the condoms for comfort when he had
ingrown hairs.’’ Brody v. Brody, supra, 136 Conn.
App. 779–80.
‘‘The defendant was served with divorce papers on
July 1, 2008. . . . In a memorandum of decision issued
March 12, 2010, the court, Munro, J., ordered, among
other things, the dissolution of the parties’ marriage.
In connection with the dissolution judgment, the court
ordered the defendant to pay the plaintiff $2,500,000 in
lump sum alimony . . . .’’ (Footnote omitted.) Id., 779.
Before the trial court’s judgment was rendered in this
dissolution action, the parties had entered into a sepa-
rate settlement agreement regarding the alleged mis-
handling of the fund.
Subsequently, on November 29, 2010, the trial court,
Munro, J., issued a remedial order requiring the defen-
dant to, inter alia, inventory his watch collection and
then turn all of the watches over to a third party bailee as
security for amounts owed to the plaintiff.3 The plaintiff
filed a postjudgment motion for contempt on January
27, 2011, alleging that, while she was picking up the
children from the defendant’s home a few days prior,
she had observed him wearing a valuable watch. After
hearing conflicting testimony regarding this encounter,
the court, Wenzel, J., issued an order dated April 28,
2011, which found the defendant in contempt for failing
to comply with Judge Munro’s remedial order. In mak-
ing this contempt finding, Judge Wenzel applied a pre-
ponderance of the evidence standard of proof.
The defendant appealed from the trial court’s dissolu-
tion judgment and postjudgment orders to the Appellate
Court. With respect to the issues that are the subject
of this certified appeal,4 the Appellate Court rejected
the defendant’s claims that the trial court improperly:
(1) based its alimony award on a finding that the defen-
dant committed adultery; id., 783; (2) based its alimony
award on conduct that was subject to a prior written
stipulation between the parties; id., 787; and (3) applied
a preponderance of the evidence standard of proof to
the indirect civil contempt proceeding. Id., 801. This
certified appeal followed. See footnote 1 of this opinion.
Additional relevant facts and procedural history will be
provided as necessary.
I
ALIMONY AWARD
We pause to underscore that ‘‘a judgment in a compli-
cated dissolution case is a carefully crafted mosaic,’’
which this court is reluctant to disturb without adequate
cause. (Internal quotation marks omitted.) Grimm v.
Grimm, 276 Conn. 377, 386, 886 A.2d 391 (2005), cert.
denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815
(2006). ‘‘As we have repeatedly noted, trial courts have
a distinct advantage over an appellate court in dealing
with domestic relations, where all of the surrounding
circumstances and the appearance and attitude of the
parties are so significant.’’ (Internal quotation marks
omitted.) Hardisty v. Hardisty, 183 Conn. 253, 260, 439
A.2d 307 (1981). ‘‘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.’’ (Internal quota-
tion marks omitted.) Misthopoulos v. Misthopoulos, 297
Conn. 358, 366–67, 999 A.2d 721 (2010).
A
Adultery Finding
We begin with the defendant’s claim that the Appel-
late Court improperly concluded that the trial court’s
alimony award was not based on a finding that he had
committed adultery. The defendant contends that the
trial court did make an adultery finding against him,
‘‘explicitly and repetitively,’’ and improperly awarded
the plaintiff alimony on that basis because the evidence
of adultery was insufficient. In support of his argument,
the defendant directs our attention to four specific pas-
sages in the trial court’s memorandum of decision. The
first such passage is the following: ‘‘The court finds that
the presence of condoms in [the defendant’s toiletries
bag] was a sufficient basis for the plaintiff to presume
he was unfaithful to her. Further, the court having found
him not credible on this regarding a substantial statu-
tory factor, cause of the breakdown of the marriage,
which the court must consider in weighing alimony
claims. Further, the court considers this lack of credibil-
ity a substantial adverse factor where it is weighing the
differing testimony of the parties and credibility is an
issue.’’ In a second passage, the trial court stated that
‘‘[t]he marriage between the parties has broken down
irretrievably, in large part because of the defendant’s
dishonesty, probable infidelity and his increasingly abu-
sive behavior towards the plaintiff.’’ Later, in a third
passage, the trial court ‘‘[found] that the defendant
[was] responsible for the breakdown of the marriage
for conduct described herein.’’ In a fourth passage, the
trial court remarked that ‘‘[t]he sanctity of an oath of
honesty is apparently of little importance to the defen-
dant. The marital vow of fidelity proved no more binding
on [him].’’ The defendant insists that these four pas-
sages clearly illustrate that the trial court made an adul-
tery finding against him and, moreover, that the adultery
finding had a material effect on the amount of alimony
awarded to the plaintiff. The defendant argues that the
Appellate Court improperly concluded otherwise and,
further, that he is entitled to a new trial because the
trial court’s findings were not supported by sufficient
evidence to satisfy the legal standard for adultery find-
ings that was articulated in such cases as Turgeon v.
Turgeon, 190 Conn. 269, 278–79, 460 A.2d 1260 (1983).
In response, the plaintiff argues that the Appellate
Court properly concluded that the trial court did not
actually find that the defendant committed adultery
and, further, did not award her alimony on that particu-
lar basis. The plaintiff contends that the trial court’s
judgment instead was grounded in the defendant’s ‘‘con-
sistent lack of credibility.’’ That is, the trial court identi-
fied the defendant’s dishonesty ‘‘on a plethora of
matters’’ as a significant cause of the marital break-
down. The plaintiff argues that this overall credibility
problem led the trial court, in passing, to likewise ques-
tion the veracity of defendant’s proffered excuse regard-
ing the condoms discovered in his toiletries bag.
According to the plaintiff, however, the trial court did
not take the additional step of making an affirmative
infidelity finding. Turning to the four specific passages
cited by the defendant, the plaintiff responds that the
trial court’s language merely notes ‘‘[the plaintiff’s]
belief in the [defendant’s] probable infidelity,’’ without
making such a finding for itself. The plaintiff then adds
that ‘‘[t]here is nothing else . . . to support the claim
of error that the court made the [defendant’s] alleged
infidelity a factor in the award of alimony.’’ We agree
with the plaintiff’s broader view of the trial court’s
judgment—namely, that it actually dissolved this mar-
riage due to irreconcilable differences, fueled in large
part by the defendant’s persistent lack of trustworthi-
ness—and conclude that, to the extent that any subordi-
nate passages regarding infidelity are ambiguous, they
should be read in favor of upholding the trial court’s
alimony award.
Upon closer examination, we are unpersuaded by the
defendant’s argument that the four relevant passages
from the trial court’s memorandum of decision show
that it made a conclusive finding of infidelity which, in
turn, affected its alimony award. At best, the challenged
language sends mixed signals. Consider, for example,
the first passage: ‘‘The court finds that the presence
of condoms in [the defendant’s toiletries bag] was a
sufficient basis for the plaintiff to presume he was
unfaithful to her. Further, the court having found him
not credible on this regarding a substantial statutory
factor, cause of the breakdown of the marriage, which
the court must consider in weighing alimony claims.
Further, the court considers this lack of credibility a
substantial adverse factor where it is weighing the dif-
fering testimony of the parties and credibility is an
issue.’’ (Emphasis added.) The introductory sentence
acknowledges that an evidentiary basis exists for the
plaintiff’s subjective belief that the defendant was
unfaithful to her. The middle sentence is either incom-
plete or in need of grammatical reconstruction. The
concluding sentence is somewhat circular, but speaks
to the trial court’s general view that the defendant
lacked credibility. Taken individually and together, the
sentences within the first disputed passage are thus, to
quote the defendant, ‘‘obliqu[e]’’ on the issue of whether
an infidelity finding was actually made and whether
such a finding would have affected the trial court’s
alimony award. Contrary to the defendant’s arguments,
this passage is reasonably read as being consistent with
the trial court attributing the breakdown of this mar-
riage to the defendant’s overall issues concerning trust-
worthiness. The second and third passages are similarly
inconclusive. The fourth passage amounts to judicial
admonishment, but not a clear factual finding—much
less one that was used in calculating alimony.
Importantly, the four passages invoked by the defen-
dant should not be read in isolation, absent the overall
context of the trial court’s memorandum of decision.
See In re Jason R., 306 Conn. 438, 453, 51 A.3d 334
(2012) (‘‘an opinion must be read as a whole, without
particular portions read in isolation, to discern the
parameters of its holding’’ [internal quotation marks
omitted]). This is especially necessary given the consid-
erable breadth and depth of the memorandum, which,
without accounting for the accompanying financial
orders, spans thirty-eight pages. Upon a full review of
the memorandum, the fleeting mentions of infidelity
are eclipsed by the trial court’s flood of findings that
the defendant acted dishonestly. To provide a demon-
strative, but nonexhaustive list, we observe here that
the trial court determined that the defendant: (1) lied
under oath about taking the plaintiff’s jewelry during
the pendency of a prior dissolution action—which was
withdrawn after the parties reconciled; (2) concealed
his troubles at work and declining income from the
plaintiff, despite her expressed concerns; and (3) was
not forthcoming about a multitude of financial matters,
both before and after the present dissolution action
commenced. This rampant dishonesty was identified
by the trial court as a driving cause of the marital break-
down, and is amply supported by the record. Indeed,
the trial court expressly dissolved the marriage because
it had broken down irretrievably, and not because of
adultery. See General Statutes § 46b-40 (c) (‘‘[a] decree
of dissolution of a marriage . . . shall be granted upon
a finding that one of the following causes has occurred:
[1] [t]he marriage has broken down irretrievably . . .
[3] adultery’’).
Having fully considered the defendant’s claim, we
decline his invitation to engage in syntactic exercises
with the four isolated and ambiguous passages and,
instead, read them to support the trial court’s alimony
award.5 See D’Ascanio v. Toyota Industries Corp., 309
Conn. 663, 686, 72 A.3d 1019 (2013) (McDonald, J.,
concurring) (ambiguous statements read in light most
favorable to sustaining trial court decision); In re Jason
R., supra, 306 Conn. 453 (‘‘[w]e read an ambiguous trial
court record so as to support, rather than contradict,
its judgment’’ [internal quotation marks omitted]). This
approach is consistent with our more holistic reading
of the trial court’s memorandum of decision, which
was replete with findings that the defendant generally
lacked credibility and, in turn, was responsible for the
irretrievable breakdown of the marriage. Moreover,
this comports with our well established principles
according due deference to complex dissolution judg-
ments. See, e.g., Grimm v. Grimm, supra, 276 Conn.
386. Accordingly, we conclude that the Appellate Court
properly determined that the trial court’s alimony award
was not based on a finding that the defendant had
committed adultery.
B
Prior Written Stipulation
We next turn to the defendant’s claim that the Appel-
late Court improperly concluded that the trial court did
not improperly award alimony based on conduct that
had been subject to a prior written stipulation between
the parties. Specifically, the defendant argues that, as
part of an arbitration settlement, the plaintiff released
‘‘ ‘any and all claims’ arising from her investment in the
[fund].’’ (Emphasis added.) The defendant emphasizes
that the release in question broadly encompasses ‘‘any
and all claims’’ relating to the fund, and was not limited
to the arbitration context, ‘‘as so easily could have been
done . . . .’’ Citing, for example, Felton v. Felton, 123
Conn. 564, 196 A. 791 (1938), the defendant contends
that ‘‘[a] demand for alimony is a ‘claim,’ ’’ and that ‘‘the
trial court subsequently held that [the] plaintiff had not
released a claim for alimony based on the identical
allegations of misconduct involving [the] plaintiff’s
[fund] investments.’’ (Emphasis in original.) This was
improper, the defendant argues, because ‘‘[t]he trial
court was not at liberty to compensate [the plaintiff]
. . . in connection with her investment in [the fund].’’
In response, the plaintiff agrees that she released, by
written stipulation, ‘‘ ‘any and all claims’ arising out of
[her] investment in the fund in consideration of . . .
being paid what was due’’ from her fund accounts. The
plaintiff contends, however, that the released arbitra-
tion claims arose from the defendant’s ‘‘mismanage-
ment and failure to return . . . funds, as a matter of
contract and property law.’’ She argues that those
claims were ‘‘clearly independent of [her] claim for
dissolution of the marriage’’ and ‘‘for alimony and child
support . . . .’’ (Emphasis omitted.) Put differently,
she contends that the stipulation ‘‘was a property
release relating to a nonmarital right.’’ (Emphasis in
original.) The trial court was aware of the distinction,
the plaintiff argues, as evidenced by its refusal to award
her any attorney’s fees in connection with her pursuit
of the fund related arbitration. The plaintiff contends
that all of this is consistent with the concept that ‘‘[t]he
alimony award is not a property right that compensates
the payee for a lost property right or claim; it is compen-
sation for the loss of spousal support.’’ We agree with
the plaintiff and conclude that the parties’ prior written
settlement did not preclude the trial court from consid-
ering the plaintiff’s investment in the fund when fashion-
ing the alimony award.
‘‘Trial courts . . . are afforded wide discretion in
awarding alimony, provided that they consider all of
the criteria enumerated in General Statutes § 46b-82.’’6
Greco v. Greco, 275 Conn. 348, 360, 880 A.2d 872 (2005).
‘‘The generally accepted purpose of . . . alimony is to
enable a spouse who is disadvantaged through divorce
to enjoy a standard of living commensurate with the
standard of living during marriage.’’ 24A Am. Jur. 2d
117, Divorce and Separation § 662 (2008). ‘‘A decree for
the payment of alimony, therefore, does not constitute:
(1) a debt in the traditional sense; (2) a decree for the
payment of damages; or (3) a decree for the imposition
of a penalty.’’ (Footnote omitted.) Id., § 573, pp. 24-25;
see also Greco v. Greco, supra, 361 (‘‘alimony is not
designed to punish, but to ensure that the former spouse
receives adequate support’’). ‘‘Although in a dissolution
action, the trial court must consider the conduct of the
parties, the judgment in a dissolution action does not
provide direct compensation as such to a party for
injuries suffered during the marriage.’’ Delahunty v.
Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 593,
674 A.2d 1290 (1996).
Turning our attention to the settlement stipulation,
we first observe that ‘‘a stipulation is considered a con-
tract’’ and that a ‘‘determination of what the parties
intended by their . . . commitments is a question of
law [over which our review is plenary].’’ (Internal quota-
tion marks omitted.) Ahmadi v. Ahmadi, 294 Conn.
384, 390, 985 A.2d 319 (2009). The parties’ stipulation
states: ‘‘[The] plaintiff hereby releases . . . [the fund
and the defendant] from any and all claims arising out
of [the] plaintiff’s investment in [the fund] prior to July
17, 2009.’’ We conclude that nothing in this language
would constrain the trial court’s equitable discretion
with respect to alimony. The settlement merely released
the defendant from the plaintiff’s threatened claims for
damages in connection with the fund. As observed, the
nature of alimony is categorically distinct from dam-
ages, in that it is a forward-looking means of providing
economic support for a former spouse. Cf. Delahunty
v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn.
592 (‘‘[a] tort action, the purpose of which is to redress
a legal wrong by an award of damages, is not based on
the same underlying claim as an action for dissolution,
the purpose of which is to sever the marital relationship,
to fix the rights of the parties with respect to alimony
and child support, and to divide the marital estate’’).
Moreover, following a discussion of the fund contro-
versy, the trial court in the present action expressly
found ‘‘that the plaintiff fully released the defendant
from any claims arising out of her ownership in the
fund in their settlement agreement.’’ The trial court
went on to distinguish the truly unique function of an
alimony claim from that of an ordinary claim, finding
‘‘that the defendant did engage in conduct that jeopard-
ized the ability of the plaintiff to realize her assets.
While this cannot result in an order granting her reim-
bursement of [arbitration related] attorney’s fees . . .
it must be factored in by the court in the consideration
of alimony (falling within the [statutory] factors)
. . . .’’ This illustrates that the trial court’s discussion
of the plaintiff’s jeopardized assets was appropriately
linked to a statutory factor under § 46b-82 (a) used to
determine her alimony award, namely, her amount and
sources of income. The trial court, beyond being vested
with broad discretionary powers to fashion the alimony
award generally, had a specific statutory imperative
under § 46b-82 (a) to consider the plaintiff’s reduced
income sources—regardless of whether the reduction
was attributable to the defendant or someone else. See
Greco v. Greco, supra, 275 Conn. 360; see also General
Statutes (Supp. 2014) § 46b-82 (a) (‘‘[i]n determining
whether alimony shall be awarded, and the duration
and amount of the award, the court shall consider . . .
amount and sources of income’’). Accordingly, we con-
clude that the Appellate Court properly upheld the deci-
sion of the trial court to fashion the alimony award on
this basis.
II
INDIRECT CIVIL CONTEMPT PROCEEDING
We now turn to the defendant’s claim that the Appel-
late Court improperly concluded that Judge Wenzel
properly applied a preponderance of the evidence stan-
dard of proof to his indirect civil contempt proceeding.
The defendant acknowledges that certain Appellate
Court cases indicate that civil contempt should be
proven by a preponderance of the evidence; e.g., Grav-
ius v. Klein, 123 Conn. App. 743, 749, 3 A.3d 950 (2010);
but argues that this court should use the present appeal
as an opportunity to hold that civil contempt must
instead be proven by ‘‘ ‘clear and convincing evidence
. . . .’ ’’ The defendant argues that this heightened stan-
dard of proof is appropriate because civil contempt
proceedings: (1) are quasi-criminal and carry the threat
of incarceration if there is a compliance failure; (2) may
have important collateral consequences; and (3) are
governed by the clear and convincing evidence standard
in a majority of other jurisdictions, including the fed-
eral system.
In response, the plaintiff does not appear to challenge
substantively the defendant’s three proffered reasons
for changing the law to require a heightened standard
of proof for civil contempt proceedings. Rather, the
plaintiff contends that the Appellate Court’s decision
is consistent with Connecticut case law—citing cases
in which the Appellate Court determined that a prepon-
derance standard should govern civil contempt pro-
ceedings; e.g., Dickinson v. Dickinson, 143 Conn. App.
184, 189, 68 A.3d 182 (2013); Campbell v. Campbell, 120
Conn. App. 760, 767, 993 A.2d 984 (2010); as well as
cases in which this court determined that a rather amor-
phous ‘‘sufficient proof’’ standard should govern indi-
rect civil contempt proceedings more specifically. E.g.,
Cologne v. Westfarms Associates, 197 Conn. 141, 151–
52, 496 A.2d 476 (1985); Potter v. Board of Selectmen,
174 Conn. 195, 197, 384 A.2d 369 (1978). The plaintiff
goes on to argue that, even if this court does adopt a
clear and convincing evidence standard, that height-
ened standard would be met here. We disagree, and
adopt the clear and convincing evidence standard of
proof for indirect civil contempt proceedings. We fur-
ther conclude that a new contempt hearing is required
with regard to the incident underlying the trial court’s
April 28, 2011 postjudgment order.
‘‘As we have often recognized, contempts may be
characterized as civil or as criminal.’’ Cologne v. West-
farms Associates, supra, 197 Conn. 149. ‘‘[A] court’s
power to hold a party in civil or criminal contempt is
not limited by the nature of the offense. Rather, it is
the nature of the relief itself that is instructive in
determining whether a contempt is civil or criminal. A
contempt fine is civil if it either coerce[s] the defendant
into compliance with the court’s order, [or] . . . com-
pensate[s] the complainant for losses sustained.’’ (Inter-
nal quotation marks omitted.) New Hartford v.
Connecticut Resources Recovery Authority, 291 Conn.
489, 499, 970 A.2d 570 (2009). ‘‘Contempts of court may
also be classified as either direct or indirect, the test
being whether the contempt is offered within or outside
the presence of the court. . . . A refusal to comply
with an injunctive decree is an indirect contempt of
court because it occurs outside the presence of the trial
court.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Cologne v. Westfarms Asso-
ciates, supra, 150.
In the present appeal, neither party challenges the
Appellate Court’s characterization of the contempt find-
ing as civil and indirect in nature. See Brody v. Brody,
supra, 136 Conn. App. 801. In any event, the underlying
trial court order was inarguably injunctive because it
directed the defendant to, inter alia, inventory his watch
collection and then turn all of the watches over to a
third-party bailee as security for amounts owed to the
plaintiff. A compliance failure associated with this order
would constitute indirect civil contempt. We therefore
proceed to the narrow question of what standard of
proof should govern indirect civil contempt pro-
ceedings.
In Cologne v. Westfarms Associates, supra, 197 Conn.
150, this court recognized ‘‘that there are constitutional
safeguards that must be satisfied in indirect contempt
cases. It is beyond question that due process of law
. . . requires that one charged with contempt of court
be advised of the charges against him, have a reasonable
opportunity to meet them by way of defense or explana-
tion, have the right to be represented by counsel, and
have a chance to testify and call other witnesses in
his behalf, either by way of defense or explanation.’’
(Internal quotation marks omitted.) The due process
requirements articulated in Cologne continue to be
instructive. See also New Hartford v. Connecticut
Resources Recovery Authority, supra, 291 Conn. 500–
501 (notice deficiency in indirect civil contempt pro-
ceeding).
In Cologne, this court further broached the topic of
which standard of proof is most appropriate for indirect
civil contempt proceedings. In surveying the historic
common law, it determined that ‘‘in the absence of
an admission of contempt, [such a finding] had to be
prove[n] by sufficient competent evidence . . . .’’7
Cologne v. Westfarms Associates, supra, 197 Conn. 151.
As applied to the action then at hand, the court con-
cluded that the sufficient evidence standard was not
met because the trial court relied ‘‘entirely upon
unsworn statements of [a party’s] counsel’’ to reach its
contempt finding. Id., 154. We conclude that Cologne’s
standard for indirect civil contempt proceedings war-
rants clarification, for indeed any claim must be proven
by ‘‘sufficient’’ evidence—whether the overarching
standard of proof requires a mere preponderance of
evidence, clear or convincing evidence, or otherwise.8
Following a review of persuasive indirect civil con-
tempt case law, we ultimately conclude that, under
Connecticut law, such proceedings should be proven
by clear and convincing evidence. This determination
is aligned with the courts of our sister states; e.g., In re
Birchall, 454 Mass. 837, 852–53, 913 N.E.2d 799 (2009);
Coventry v. Baird Properties, LLC, 13 A.3d 614, 621
(R.I. 2011); as well as federal courts. E.g., Southern
New England Telephone Co. v. Global NAPs Inc., 624
F.3d 123, 145 (2d Cir. 2010); Goya Foods, Inc. v. Wallack
Management Co., 290 F.3d 63, 77 (1st Cir. 2002). This
heightened standard of proof ‘‘adequately characterizes
the level of certainty appropriate to justify civil con-
tempt sanctions, especially when those sanctions may
include incarceration.’’ In re Birchall, supra, 852; see
also General Statutes § 46b-87 (civil contempt finding
may potentially lead to incarceration in certain family
law matters). Moreover, within our state’s existing legal
framework for indirect civil contempt proceedings, a
clear and convincing standard of proof is consistent
with the threshold substantive requirement that the
directives of the underlying court order be ‘‘clear and
unambiguous.’’ In re Leah S., 284 Conn. 685, 693, 935
A.2d 1021 (2007). Our rigorous due process require-
ments for indirect civil contempt proceedings likewise
demand a heightened evidentiary standard. See Cologne
v. Westfarms Associates, supra, 197 Conn. 150. In sum, a
civil contempt finding should not attach to an individual
just because it is more likely than not that an injunction
was disobeyed beyond the eyes of a court. Accordingly,
we hold that the Appellate Court improperly concluded
that a preponderance of the evidence standard of proof
governs indirect civil contempt proceedings.
The plaintiff argues, however, that even if this court
adopts a clear and convincing evidence standard for
indirect civil contempt proceedings, the evidence in
the present case would rise to meet that heightened
standard of proof. She does not cite to any legal author-
ity in support of her contention that, here, the improper
application of a lower standard of proof by the trial
court would be harmless error. We conclude that it is
not the province of an appellate tribunal to make her
requested evidentiary assessment in the first instance.
See Brown v. Villano, 49 Conn. App. 365, 369–70, 716
A.2d 111 (new hearing required where trial court
improperly applied preponderance standard, rather
than clear and convincing standard), cert. denied, 247
Conn. 904, 720 A.2d 513 (1998). This type of appellate
abstention is especially appropriate in the present
action, given that the trial court’s contempt finding cen-
tered on conflicting testimony regarding the defendant’s
alleged possession of a watch. See Schaffer v. Schaffer,
187 Conn. 224, 227, 445 A.2d 589 (1982) (‘‘[n]othing in
our law is more elementary than that the trier is the
final judge of the credibility of witnesses and of the
weight to be accorded their testimony’’ [internal quota-
tion marks omitted]).
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to vacate the trial court’s April 28, 2011 judgment
of contempt and to remand the case to the trial court
with direction to hold a new contempt hearing in accor-
dance with this opinion; the judgment of the Appellate
Court is affirmed in all other respects.
In this opinion the other justices concurred.
1
We granted the defendant’s petition for certification for appeal limited
to the following issues: (1) ‘‘Did the Appellate Court properly determine
that the trial court’s judgment was not based upon a finding of adulterous
conduct on the part of the defendant?’’; (2) ‘‘Did the Appellate Court properly
determine that a contractual release of ‘any and all claims arising out of the
plaintiff’s investment in [Colonial Fund, LLC]’ did not include the plaintiff’s
claims for alimony arising from the plaintiff’s investment in Colonial Fund,
LLC?’’; and (3) ‘‘Did the Appellate Court properly determine that the standard
of proof in civil contempt proceedings was the ‘preponderance of the evi-
dence’ standard?’’ Brody v. Brody, 307 Conn. 910, 910–11, 53 A.3d 998 (2012).
2
The defendant requests that we address a fourth claim relating to a
postjudgment order of contempt by the trial court, Munro, J., dated Novem-
ber 29, 2010. We decline to address the matter because it is outside the
scope of the certified issues. See Practice Book § 84-9 (‘‘[t]he issues which
the appellant may present are limited to those raised in the petition for
certification, except where the issues are further limited by the order grant-
ing certification’’). Notably, the Appellate Court addressed the claim in
question and the defendant failed to raise it in his petition for certification.
See Brody v. Brody, supra, 136 Conn. App. 797–99. Moreover, we do not
see any unique justification that would favor granting the defendant’s belated
request that we exercise our supervisory powers to consider the claim. Cf.
Ahneman v. Ahneman, 243 Conn. 471, 481–82, 706 A.2d 960 (1998) (invoking
supervisory powers to evaluate claim that was not certified, rather than
remanding case to Appellate Court to consider for first time, because reach-
ing merits of claim was beneficial as matter of judicial economy).
3
The defendant challenges Judge Munro’s November 29, 2010 remedial
order. We do not, however, reach that claim. See footnote 2 of this opinion.
4
The Appellate Court also rejected the defendant’s other claims, namely,
that the trial court improperly: (1) ‘‘used an award of alimony to effectuate
an improper distribution of property in violation of the parties’ prenuptial
agreement’’; (2) ‘‘calculated the alimony award on the basis of cash flow
rather than available net income’’; and (3) ‘‘found him in contempt on the
basis of his compliance with a prior federal court order . . . .’’ Brody v.
Brody, supra, 136 Conn. App. 776.
5
Although the defendant filed a motion for articulation in this case on
July 13, 2010, that motion did not request any clarification regarding the
alleged infidelity finding. ‘‘[A]n articulation is appropriate where the trial
court’s decision contains some ambiguity or deficiency reasonably suscepti-
ble of clarification. . . . [P]roper utilization of the motion for articulation
serves to dispel any . . . ambiguity by clarifying the factual and legal basis
upon which the trial court rendered its decisions, thereby sharpening the
issues on appeal.’’ (Internal quotation marks omitted.) Grimm v. Grimm,
supra, 276 Conn. 389.
We acknowledge that Practice Book § 61-10 (b) provides in relevant part:
‘‘The failure of any party on appeal to seek articulation pursuant . . . shall
not be the sole ground upon which the court declines to review any issue
or claim on appeal. . . .’’ (Emphasis added.) Although a trial court articula-
tion might have been helpful in the present case, this court has afforded
meaningful review of the defendant’s claim and concludes that his desired
reading of the four passages contained in the trial court’s memorandum of
decision is myopic.
6
General Statutes (Supp. 2014) § 46b-82 (a) provides in relevant part: ‘‘At
the time of entering the decree, the Superior Court may order either of the
parties to pay alimony to the other . . . . In determining whether alimony
shall be awarded, and the duration and amount of the award, the court shall
. . . consider the length of the marriage, the causes for the annulment,
dissolution of the marriage or legal separation, the age, health, station,
occupation, amount and sources of income, earning capacity, vocational
skills, education, employability, estate and needs of each of the parties and
the award, if any, which the court may make pursuant to section 46b-
81 . . . .’’
We note that, although § 46b-82 was amended subsequent to the com-
mencement of this dissolution action; see Public Acts 2013, No. 13-213, § 3;
the changes enacted by the legislature are not relevant to the issues presently
on appeal. Therefore, for convenience, we refer to the 2014 supplement of
the statute.
7
In Cologne, this court observed, however, ‘‘that in the federal system
the burden of proof in civil contempt cases is the ‘clear and convincing
evidence’ standard.’’ Cologne v. Westfarms Associates, supra, 197 Conn.
152 n.11.
8
We acknowledge that this vagary of Cologne may have led to a number
of Appellate Court determinations that civil contempt findings should be
proven by a preponderance of the evidence. E.g., Dickinson v. Dickinson,
supra, 143 Conn. App. 189; Oldani v. Oldani, 132 Conn. App. 609, 626, 34
A.3d 407 (2011); Gravius v. Klein, supra, 123 Conn. App. 749; Campbell v.
Campbell, supra, 120 Conn. App. 767; Statewide Grievance Committee v.
Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001). Under the Appellate
Court’s well established policy, its three judge panel in this case was bound
to apply such precedent. See, e.g., Boccanfuso v. Conner, 89 Conn. App.
260, 285 n.20, 873 A.2d 208 (‘‘[T]his court’s policy dictates that one panel
should not, on its own, reverse the ruling of a previous panel. The reversal
may be accomplished only if the appeal is heard en banc.’’ [Internal quotation
marks omitted.]), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).