Puff v. Puff ( 2020 )

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CLAUDIA PUFF v. GREGORY PUFF
(SC 20058)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to the Appellate Court from certain postjudgment
orders of the trial court modifying alimony, finding her in contempt for
her wilful violation of a court order, and awarding, inter alia, attorney’s
fees to the defendant. After the trial court granted the plaintiff’s motion
for modification of alimony, increased the amount of monthly alimony
and extended the duration of those payments, the plaintiff moved to
open and vacate the judgment on the ground that the defendant had
failed to disclose a pending employment offer at considerably higher
compensation. The trial court granted the motion and opened the judg-
ment for the purpose of hearing new evidence. Thereafter, the parties
and their counsel appeared before the court, requesting to place on the
record an oral stipulation regarding alimony payments and other terms
that they had negotiated. The stipulation required the defendant to
increase his alimony payments, with a provision that the plaintiff could
assign those payments to a special needs trust, under which the defen-
dant was to be a residuary beneficiary. The stipulation obligated the
plaintiff to draft the special needs trust and to secure or endeavor to
secure a legal opinion that the trust arrangement would not affect the
defendant’s right to deduct the alimony payments from his federal tax
obligations. Following the trial court’s canvass of the parties, the court
approved and ordered the stipulation, and, subsequently, the defendant
moved for an order, asking the court to approve a written embodiment
of the oral stipulation prepared by his counsel, to which the plaintiff
objected. The plaintiff claimed, among other things, that the parties
were unaware when they drafted the stipulation that it was impossible
to create a legally valid special needs trust or to afford the defendant
a tax deduction for the alimony according to the terms of the stipulation
and, therefore, that the defendant’s motion for order should be denied
and the stipulation should be vacated. The plaintiff then filed a motion
to open and vacate the court’s order approving the stipulation, to which
the defendant objected. In support of her motion, the plaintiff asserted
that she had received an opinion from an accountant who had deter-
mined that the defendant’s alimony payments would not be deductible
under the terms of the stipulation. Following several hearings, the court
presented the parties with its memorandum of decision on the postjudg-
ment motions resolved by stipulation, which reduced the oral stipulation
to writing. The plaintiff objected on the ground that the decision did
not reflect her counsel’s statement that, if the parties were unable to
obtain an opinion that confirmed that the alimony payments were
deductible and that the plaintiff would receive those payments as con-
templated, the plaintiff would not agree to the stipulation. The trial court
responded that a binding agreement had been approved and ordered
and that it was not contingent in nature. The plaintiff declined to with-
draw her motion to open, and the court declined to deny it because
there had not yet been a hearing on the merits but stated that the
motion was procedurally defective. The defendant then filed a motion
for sanctions and for contempt, claiming that, after settling years of
litigation by stipulating to the modification, the plaintiff failed to meet
her obligations under that stipulation and contested her own settlement
through improper procedural mechanisms. In connection with his
request for sanctions, the defendant sought an award of attorney’s fees
and expert fees incurred for defense against the plaintiff’s motions, and
he asked that the court find the plaintiff in contempt for her wilful
failure to create the special needs trust and to seek the legal opinion
required by the order approving the stipulation, as well as for intention-
ally not acting in good faith to implement that order. He requested that
the order of contempt include an award of expenses he had incurred
in defending against the plaintiff’s motion to open and in employing an
expert to draft the special needs trust that the plaintiff had failed to
produce. The trial court thereafter granted the defendant’s motion for
contempt and for sanctions, finding by clear and convincing evidence
that the plaintiff had wilfully violated the trial court’s order approving
the stipulation. The court awarded the defendant attorney’s fees and
expert fees in an amount corresponding to all litigation expenses
incurred by the defendant after the date on which the trial court entered
the order approving the stipulation. On appeal to the Appellate Court,
that court upheld the trial court’s decision on the postjudgment motions
resolved by stipulation but reversed its decision with respect to the
contempt order, concluding that, in light of the undisputed fact that the
plaintiff made at least some effort to obtain the legal opinion she was
required to secure or endeavor to secure, it was left with a definite and
firm conviction that the trial court’s finding of contempt was clearly
erroneous. In light of that conclusion, the Appellate Court did not address
the reasonableness of the award of attorney’s fees and expert fees.
From the Appellate Court’s judgment, the defendant, on the granting of
certification, appealed, claiming that the plaintiff did not comply with
the legal opinion requirement but that, in any event, the trial court’s
award was based on a broader course of conduct than the failure to
secure the legal opinion. After oral argument, and in response to a
request from this court, the trial court issued an articulation, stating,
inter alia, that its order was based both on the plaintiff’s wilful contempt
of its order approving the stipulation and on the plaintiff’s subsequent
litigation misconduct, which caused undue delay and expense to the
defendant. As the basis for its finding of wilful contempt, the trial court
noted, inter alia, that the plaintiff violated three provisions in the parties’
stipulation, the first prohibiting the parties from disparaging each other,
the second requiring the plaintiff to obtain the legal opinion, and the
third limiting the parties’ disclosure or publication of the settlement.
The court cited, as an additional basis for its finding of wilful contempt,
the parties’ representation at the hearing on the order approving the
stipulation that the parties would work together to reduce the stipulation
to writing and that, in the event of a dispute, the parties would seek
the court’s involvement. Held:
1. The trial court’s order of contempt must be reversed, as none of the bases
on which the court relied for that order supported it, and, accordingly,
this court upheld the Appellate Court’s reversal of the contempt order:
with respect to the plaintiff’s purported violation of the nondisparage-
ment and nonpublication provisions of the stipulation, the defendant
did not advance either ground in his motion for contempt or at the
hearing on that motion, the articulation did not identify any particular
statement that violated either provision, and to allow the order of con-
tempt to rest on either basis would contravene the plaintiff’s due process
rights; moreover, the trial court’s reliance in its articulation on the
undisputed fact that there was no letter from an accountant in the court
file or submitted into evidence as proof of the plaintiff’s wilful violation
of the stipulation’s provision requiring the plaintiff to secure or endeavor
to secure a legal opinion was problematic, as there was a draft written
opinion by an accountant appended to one of the plaintiff’s motions,
the court’s requirement that the plaintiff prove the existence of the letter
misallocated the burden of proof because the defendant had the burden,
as the party moving for the contempt order, to prove by clear and
convincing evidence that the plaintiff wilfully violated this provision,
and the defendant offered no testimony regarding the availability of, or
the plaintiff’s failure to undertake good faith efforts to obtain, the legal
opinion; furthermore, the court’s finding of contempt on the basis of
the parties’ representation that they would work together to reduce the
oral stipulation to writing was also problematic, as the defendant did
not seek a contempt order on this ground, thereby raising due process
concerns, the defendant did not offer any evidence to prove contempt
on this basis and therefore could not meet his burden of proof, and the
pleadings did not support the trial court’s conclusion, as the defendant’s
motion for order did not allege that the defendant’s counsel made any
effort to work with the plaintiff or her counsel to memorialize the
stipulation before the defendant filed his motion for contempt, and,
insofar as the stipulation obligated the parties to bring disputes over
its wording to the trial court’s attention, the record clearly revealed that
the plaintiff did so.
2. Insofar as the trial court’s award of attorney’s fees and expert fees was
based on litigation misconduct, it lacked the requisite findings, and,
accordingly, this court remanded the case for further proceedings on
the defendant’s motion for sanctions; although attorney’s fees generally
are not awarded to the successful party in the absence of a contractual
or statutory exception, a court has inherent authority to award attorney’s
fees when the losing party has acted in bad faith, but the trial court in
the present case failed to make the findings necessary to support its
award for litigation misconduct, that is, that the plaintiff acted in bad
faith and did not advance any colorable claims.
Argued February 19, 2019—officially released January 14, 2020
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Grogins, J.,
rendered judgment dissolving the marriage and granting
certain other relief in accordance with the parties’ sepa-
ration agreement; thereafter, the court, Emons, J.,
granted the plaintiff’s motion for modification of ali-
mony; subsequently, the court, Emons, J., granted the
plaintiff’s motion to open; thereafter, the court, Heller,
J., issued certain orders in accordance with the parties’
stipulation; subsequently, the court, Heller, J., denied
the plaintiff’s motion to reargue or reconsider, and the
plaintiff appealed to the Appellate Court; thereafter, the
court, Tindill, J., granted the defendant’s motion for
sanctions and for contempt, and the plaintiff filed an
amended appeal with the Appellate Court, DiPentima,
C. J., and Beach and Bishop, Js., which reversed the
trial court’s judgment only as to the finding of contempt
and remanded the case with direction to deny the
motion for contempt, and the defendant, on the granting
of certification, appealed to this court. Affirmed in
part; reversed in part; further proceedings.
Edward M. Kweskin, with whom, on the brief, was
Sarah Gleason, for the appellant (defendant).
Samuel V. Schoonmaker IV, with whom, on the brief,
was Wendy Dunne DiChristina, for the appellee (plain-
tiff).
Opinion
McDONALD, J. This postdissolution matter stems
from the parties’ oral stipulation following a motion for
modification of alimony, the trial court’s adoption of
that stipulation as a court order, and subsequent litiga-
tion efforts by the defendant, Gregory Puff, on one
hand, to carry the order into effect, and by the plaintiff,
Claudia Puff, on the other hand, to challenge the order.
At issue is the trial court’s decision granting the defen-
dant’s motion for sanctions and for contempt and
awarding him more than $169,000 in attorney’s fees
and expert fees, i.e., all the litigation expenses he had
incurred following the entry of the order adopting the
stipulation. In his certified appeal, the defendant chal-
lenges the Appellate Court’s judgment reversing the
judgment of contempt. See Puff v. Puff, 177 Conn. App.
103, 129, 171 A.3d 1076 (2017). He contends that the
award was based on a broader course of conduct than
the one part of the order considered by the Appellate
Court and that the trial court’s award was proper. On
the basis of the trial court’s articulation ordered by this
court, we conclude that, insofar as the award is based
on contempt, it cannot stand on any of the grounds
articulated by the trial court. Insofar as the award is
based on litigation misconduct, it lacks the requisite
findings. We therefore affirm the Appellate Court’s judg-
ment but direct that court to remand the case to the
trial court for further proceedings on the defendant’s
motion for sanctions for litigation misconduct.
I
The record reveals the following facts, either found
by the trial court or otherwise undisputed. The parties’
fourteen year marriage was dissolved in 2002. The judg-
ment of dissolution incorporated a separation agree-
ment, under which the defendant was obligated to pay
periodic alimony of $5900 per month for a period of
ten years, plus biannual payments totaling an additional
$10,000 for that same period.1 In 2009, three years before
those obligations were to terminate, the plaintiff filed
a motion seeking to modify the alimony related orders.
The grounds alleged for the modification were an
increase in the defendant’s income and the plaintiff’s
deteriorating health due to a recent diagnosis of a seri-
ous medical issue. The trial court, Emons, J., granted
the motion, increasing the monthly alimony to $6100
and extending the duration of those payments to Febru-
ary, 2016, with both the amount and the duration not
subject to further modification. Weeks after that deci-
sion was issued, the plaintiff filed a motion to open and
vacate the judgment on the ground that the defendant
had not disclosed to the court an imminent offer of
employment at considerably higher compensation,
which became final days after the modification was
ordered. The court granted the motion in April, 2013,
opening the judgment for the purpose of hearing new
evidence.2
A
Entry of an Oral Stipulation as a Court Order
In February, 2014, the parties and their counsel
appeared before the court, requesting to put an oral
stipulation on the record that they had negotiated. The
defendant was represented by Edward M. Kweskin, and
the plaintiff was represented by Norman Roberts.
Kweskin made prefatory remarks about the agreement
before stating the particulars on the record. He stated
that it was the parties’ intention to have the court enter
the stipulation as an order if the court were to approve
it. He explained that this process was intended to con-
firm the terms on which the parties had agreed before
the defendant returned to his foreign residence.
Kweskin stated that the parties’ intention was to distill
the agreement into writing, after experts had been con-
sulted on certain mechanics of the agreement still to be
determined, and to have any disputes about the writing
brought to the court for resolution consistent with the
oral stipulation. He made clear, however, that the par-
ties intended for the stipulation to be an enforceable
order that was not conditioned on the execution of the
written agreement.
Kweskin then recited the twelve paragraphs that com-
prised the stipulation, while Roberts weighed in with
any clarifications that he thought necessary. The princi-
pal substantive terms of the stipulation were as follows.
The defendant was required to pay, along with certain
other obligations, $10,000 per month for a period of
ten years, as alimony taxable to the plaintiff and tax
deductible by the defendant. The plaintiff had the right
to assign those payments to a special needs trust.3 The
defendant would be made a residual beneficiary of the
trust, in the same proportion to the payments that he
had made to the trust. In order for the defendant to be
secure in his right to a tax deduction under present law
or in the event of changes to the law, should any tax
deduction be disallowed, he had the right to recoup
from the trust the value of that deduction and any penal-
ties assessed if sufficient offsets could not be made
from pending payment obligations to the plaintiff.
The defendant also was obligated to make a specific
contribution toward the attorney’s fees of a designated
special needs trust attorney. His counsel had the right
to review the terms of the trust before it was executed
by the plaintiff to ensure that the trust conformed to
the terms of the oral stipulation.
The stipulation obligated the plaintiff to ‘‘immediately
. . . secure or endeavor to secure a legal opinion that
the deductibility by the defendant of the alimony is not
impacted by any action taken by the plaintiff to assign
the alimony to the trust.’’ Counsel acknowledged that
the mechanics of transferring the alimony by means
that would ensure the deduction had not yet been deter-
mined, but the stipulation further provided that, ‘‘in
order to accomplish the deductibility . . . the parties,
through counsel, will work in good faith to achieve [that
method], with the result that the defendant shall have
the right [under federal tax law] to deduct the ali-
mony . . . .’’
Roberts informed the court that he had been told
that the tax deduction would not be a problem and that
they were in the process of getting an opinion letter.
Roberts explained that ‘‘the linchpin of this whole deal
is that [the defendant] wants the income tax deduction
on the $10,000 a month . . . and that [the plaintiff]
wants to actually receive the $10,000 a month. You can
imagine that the delta between those two things, given
what the financial affidavits look like, is somewhere in
the neighborhood of 40, 45 percent. So it’s really, really
important to each of these people to have the tax treat-
ment that we believe, and have both been advised,
exists. In order [to] sign off on paragraph 10 [allowing
the defendant to recoup disallowed deductions and pen-
alties], [the plaintiff], in an, I don’t even think it’s abun-
dance of caution, just some, in prudent practice, is going
to get an opinion letter from a special needs and a
tax person, who will opine that, yes, [the defendant’s]
deductibility is not impacted at all by the scheme that
we contemplate.’’ (Emphasis added.) Just before
Kweskin put the recoupment, or safety net, provision
on the record, Roberts stated that this provision ‘‘is the
reason that we are going to need the opinion letter
before this can be done.’’ (Emphasis added.)
After the stipulation was read into the record, the
court canvassed the parties. It inquired whether their
counsel had discussed the terms of the stipulation with
them, whether they understood the terms, and whether
they agreed that the terms were fair and equitable. The
parties gave affirmative responses to each question. The
plaintiff asked only one question, obtaining confirma-
tion that she would be receiving $10,000 per month for
ten years. The court then approved and ordered the
stipulation. The court suggested that the parties ‘‘proba-
bly should have the full agreement with the terms of
the trust . . . also so ordered by the court.’’
B
The Defendant’s Motion for Order and the
Plaintiff’s Objection Thereto
In April, 2014, approximately two months after this
order was entered, Roberts sought permission to with-
draw as the plaintiff’s counsel, which the court granted
the following month. In May, 2014, the defendant filed
a motion for order, asking the court to approve a written
embodiment of the oral stipulation prepared by his
counsel, a copy of which had been provided to the
plaintiff on that date. The day before a June hearing
on the motion, the plaintiff, through new counsel, Amy
J. Greenberg, filed an objection. Although the objection
addressed the defendant’s proposed draft, asserting
that it contained certain additions or omissions that
rendered it nonconforming to the oral stipulation, its
principal thrust was numerous arguments as to why
the stipulation itself was not binding or could not be
enforced. The plaintiff claimed that, unbeknownst to
the parties when they drafted the stipulation, it was
impossible either to create a legally valid special needs
trust or to afford the defendant a tax deduction for the
alimony under the terms of the stipulation.4 She further
contended that the stipulation was too ambiguous and
contained too many unknowns to result in an enforce-
able agreement, that these uncertainties precluded the
parties’ knowing consent, that the terms were uncon-
scionable,5 and that the canvass of the plaintiff had been
insufficient. The plaintiff asserted that the defendant’s
motion for order should be denied and that the stipula-
tion should be vacated.
The trial court held a hearing on the defendant’s
motion for order in June, 2014. Greenberg argued,
among other things, that viability of the stipulation was
dependent on the availability of the tax deduction and
that, after the oral stipulation was made, Roberts had
obtained an expert opinion from an accountant that
the alimony would not be deductible under the oral
stipulation’s terms. In response to Kweskin’s claim that
he had never seen this opinion, Greenberg countered
that Kweskin had been made aware of it, claiming that
Roberts’ records reflected communications between
counsel regarding the opinion and whether the defen-
dant would be willing to forgo the residuary benefit to
save the tax deduction. The court declined to address
this matter, concluding that it was probably necessary
to address the issues before the court in two steps, first
determining whether the defendant’s written stipulation
accurately reflected the oral stipulation and then con-
sidering arguments as to why the agreement could not
be carried out. The court acknowledged that the plain-
tiff’s objection had included arguments as to discrepan-
cies between the oral stipulation and the defendant’s
written stipulation and indicated that those concerns
would be considered. The court scheduled another
hearing on the matter for a later date.
C
The Plaintiff’s Motion To Open and
Vacate the February, 2014 Order
The day after the June hearing, the plaintiff filed a
motion to open and vacate the February, 2014 order
approving the oral stipulation. The grounds for the
motion mirrored those enumerated in her objection
to the defendant’s motion for order, including mutual
mistake and impossibility. One difference was that the
motion to open acknowledged the parties’ expectation
that they would receive an ‘‘opinion from a tax expert’’
that the defendant’s ability to deduct the payments
would not be impacted by the scheme that they contem-
plated, and asserted that such expert—identified as cer-
tified public accountant Ryan C. Sheppard—had deter-
mined that the payments would not be deductible under
the stipulation’s terms.
The defendant objected to the motion to open and
vacate on procedural and substantive grounds. He
claimed that the motion was defective because it was
not accompanied by a memorandum of law in violation
of the rules of practice.6 He also claimed that the plain-
tiff’s ‘‘scattershot challenge’’ sought to undo a carefully
reviewed agreement to which she had consented in an
effort to renegotiate terms more favorable to her. He
further asserted that, if, as the plaintiff contended, the
agreement contains a provision benefitting him that
jeopardized creation of a valid special needs trust; see
footnote 4 of this opinion; it was within the defendant’s
power to waive that provision in order to eliminate
any infirmity.
The parties appeared again before the court for an
August, 2014 hearing. The defendant submitted to the
court a revised draft memorializing the oral stipulation,
aimed at addressing the plaintiff’s earlier objections.
The plaintiff argued that the court should not sign off
on the draft because the terms are unenforceable under
the law for the reasons set forth in her objection and
motion to open, and because the draft did not incorpo-
rate the terms of the special needs trust. She further
argued that the defendant’s draft did not include a criti-
cal term—Roberts’ statement that the plaintiff would
not sign off on the agreement if the expert’s opinion
did not confirm the expectations of the parties. Because
these expectations could not be fulfilled, there was no
agreement, according to the plaintiff. In response, the
court stated: ‘‘I think [that] what the parties believed
at the time may not be what they believe today.’’ The
court explained that it first would turn the stipulation
into a written order and then would deal with any pur-
ported problems in carrying out that order. The plaintiff
reiterated concerns about two matters omitted from the
defendant’s draft, which the court agreed to consider.
Another hearing was scheduled for November, 2014.
Shortly before that hearing, each of the parties dis-
closed a special needs tax attorney as an expert witness
who would offer an opinion in support of their respec-
tive views as to whether a legally valid trust, rendering
the alimony payments tax deductible to the defendant,
could be created under the terms of the oral stipulation.
The plaintiff filed a motion in limine seeking to preclude
the defendant’s expert from offering such an opinion
predicated on adding or deleting terms to the oral stipu-
lation. At this time, the plaintiff also filed a memoran-
dum of law in support of her motion to open, which
the defendant objected to on the grounds that it was
untimely and a ‘‘sham’’ that merely mirrored her motion.
See footnote 6 of this opinion.
At the November, 2014 hearing, both parties had their
expert witnesses present. At the commencement of the
hearing, the court, apparently unexpectedly, presented
the parties with a ‘‘Memorandum of Decision on Post-
judgment Motions Resolved by Stipulation Approved
and So Ordered on February 19, 2014,’’ which distilled
the oral stipulation into writing.7 The court announced
that the decision was intended to resolve the defen-
dant’s motion for order. The plaintiff objected that the
decision did not reflect Roberts’ uncontested statement
setting forth a ‘‘condition precedent,’’ namely, that, if
they were unable to obtain an opinion confirming the
linchpin of the agreement—that the defendant would
get the deduction and the plaintiff would get the con-
templated payments—the plaintiff would not ‘‘sign off’’
on the stipulation. In response to these arguments, the
court stated its view that a binding agreement had been
approved and ordered in February, 2014, and that it
was not contingent in nature.
After the plaintiff further argued that the parties’ erro-
neous belief that these conditions could be fulfilled
gave rise to a mutual mistake of law, the court sought
clarification of the plaintiff’s position. The court ques-
tioned whether the plaintiff was claiming that there was
a condition precedent to the existence of an agreement
or, alternatively, that a term of the contract could not
be performed. The court explained that, if the former,
the plaintiff’s argument would mean that the February,
2014 order never was effective because the condition
precedent would never occur. Only if the plaintiff’s
claim was the latter would she move to open an
approved order on the ground that the agreement can-
not be performed. The court acknowledged that the
plaintiff could argue in the alternative.
Greenberg explained that she had filed the earlier
motion to open without having reviewed all of the facts
and the record, filing it as a ‘‘protective mechanism’’
because she had inherited the case near the four month
deadline for filing a motion to open. She characterized
the motion as unnecessary and ‘‘superfluous.’’ Green-
berg stated that the plaintiff’s position was that there
was no final judgment triggering the four month period
to move to open because no notice of judgment had
been sent out after the oral stipulation was ordered and
because the stipulation was too indefinite and left too
many things open to render it final.
Before ascertaining whether the plaintiff was with-
drawing the motion to open, the court inquired whether
any of the terms of the agreement had been carried
out. Kweskin represented that the defendant had been
making the $10,000 monthly alimony payment and had
provided funds to his counsel to hold in escrow for
some of the other payments due. When the court stated
to Greenberg that the defendant’s alimony payments
suggested that he believed that there was a final order,
Greenberg characterized the payments as ‘‘gratuitous.’’8
Greenberg declined to withdraw the motion to open
and, instead, attempted to recast it as a motion to vacate
the oral stipulation rather than to open and vacate the
February, 2014 order. The defendant challenged the
recast motion as procedurally improper. The court
declined to deny the motion to open because there had
not yet been a hearing on the merits and it was unclear
what direction the plaintiff was taking. The court none-
theless stated that the motion was procedurally defec-
tive for various unspecified reasons and advised that
the plaintiff could not reclaim it.
The plaintiff requested that, because the parties’
experts were present, the court hear their testimony
regarding whether the alimony was tax deductible and
whether a valid special needs trust could be formed
under the terms of the stipulation. The court rejected
the request in the absence of a proper pending motion.
In bringing the hearing to a close, the court stated
that it interpreted the plaintiff’s position to be that noth-
ing that was legally binding occurred on February 19,
2014, that the plaintiff does not need to do anything,
and that the defendant is paying $10,000 a month gratu-
itously. The court then stated: ‘‘It does seem the ball
is probably in your court, Attorney Greenberg. Unless
[the defendant] and his counsel decide that they want
to take steps to enforce the stipulation—then, of course,
Attorney Kweskin would file the appropriate motion,
presumably for contempt. But, I think that’s where we
are.’’ Greenberg responded: ‘‘I don’t think there was
anything that my client probably even had to do at
this point.’’
D
The Plaintiff’s Motion To Reargue or Reconsider the
Decision Adopting the Oral Stipulation
The plaintiff thereafter filed a motion to reargue or
reconsider the court’s November, 2014 order memorial-
izing the oral stipulation. She asked the court to vacate
both that decision and the oral stipulation, thereby
reinstating the case to its position prior to the stipula-
tion. The plaintiff contended that she had been denied
a due process hearing on all of the issues that she had
raised in her objection to the defendant’s motion for
order. The defendant objected to the motion principally
on the ground that it reiterated arguments from the
motion to open that the plaintiff had been given the
opportunity but declined to pursue. The court denied
the motion to reargue or reconsider.
E
Motion for Sanctions and for Contempt
Concurrently with his objection to the plaintiff’s
motion to reargue, the defendant filed a motion for
sanctions and for contempt. Broadly stated, the factual
premise of the defendant’s motion was that, after set-
tling five years of litigation by stipulating to a modifica-
tion, the plaintiff failed to meet her obligations under
that stipulation and instead contested her own settle-
ment through improper procedural mechanisms. In the
request for sanctions, the defendant sought an award
of attorney’s fees and expert fees incurred for defense
against (1) the plaintiff’s motion to open and vacate,
which was not accompanied by the memorandum of
law required by the rules of practice and thereby shifted
the burden of legal research to the defendant, and which
the plaintiff ultimately did not pursue in the form pre-
sented to the court, and (2) the plaintiff’s motion to
reargue or reconsider, on the ground that the motion
raised the same claims as the motion to open, despite
the court’s instruction that the plaintiff could not
reclaim the latter motion after she had ‘‘withdrawn’’ it.
The defendant further asked the court to find the
plaintiff in contempt for (1) her wilful failure to seek
the legal opinion required by the order, i.e., an opinion
from a lawyer, (2) her wilful failure to cause the special
needs trust to be drafted, and (3) intentionally not acting
in good faith to implement the order. The defendant
requested that the order of contempt include an award
of legal fees for expenses incurred in defending against
the motion to open and costs incurred in having a spe-
cial needs trust expert draft the trust that the plaintiff
had failed to produce.
At the hearing on the motion for sanctions and for
contempt, neither party presented testimony. The only
documentary evidence submitted, other than the par-
ties’ financial affidavits, was an affidavit from Kweskin
‘‘in support of the defendant’s request that the court
order that . . . the plaintiff pay all or a significant por-
tion of the defendant’s legal fees and costs as part of
the sanctions against the plaintiff for the proliferation
of unnecessary, inconsistent, and oppressive litigation
which unfairly has driven up the [defendant’s] litigation
expenses incurred since the parties stipulated to a post-
judgment alimony modification order on February 19,
2014 . . . .’’
With a limited exception that we will discuss later,
the hearing was largely a colloquy between the parties’
counsel and the trial court, Tindill, J. In comments to
the parties, the court emphasized that the parties had
been canvassed as to their understanding of, and agree-
ment to, the oral stipulation. The court took issue with
inconsistencies in the plaintiff’s legal positions, charac-
terizing the plaintiff’s position as: ‘‘It was an order, it
wasn’t, it was contingent, it wasn’t.’’ The court pointed
to the fact that the plaintiff had accepted the $10,000
monthly alimony payments while at the same time
arguing that the court order wasn’t valid, and stated:
‘‘She doesn’t get to pick and choose, counsel. You can-
not have it all kinds of ways. It doesn’t work that way.’’
The court also pointed to the plaintiff’s failure to go
forward on her motion to open, which would have pro-
vided evidence from both sides’ experts regarding the
crux of the plaintiff’s position.
After the court renewed concerns about the plaintiff’s
litigation efforts that took the position that the agree-
ment was unenforceable, Greenberg argued that the
plaintiff had ‘‘a good faith basis for raising all of the
issues that she did. And saying it was . . . too many
contingencies in that February 19th stipulation to make
it a final, viable, definitive order. And that’s what you
need for contempt. You need something that’s . . . a
good faith belief, which I think she had, that this was
not a final order, and was not something that she had
to follow. And she did come through with an . . . opin-
ion from an attorney, Lisa Davis.’’9
The only discussion that addressed the defendant’s
specific grounds for contempt related to the plaintiff’s
obligation to obtain a ‘‘legal opinion’’ that the tax deduc-
tion was available under the terms of the agreement.
In discussing the impossibility argument, Greenberg
mentioned that the plaintiff had sought an opinion letter
from a tax person that revealed that the special needs
trust would have been illegal under the terms of the
order. The court inquired where the letter was, and
Greenberg replied that she did not have it with her but
would attempt to find it on her computer. The court
then asserted that, even if it assumed that the letter
existed, ‘‘[t]he problem with the whole thing is that [the
plaintiff] agreed to what was made a court order and
then she decided [that] she didn’t like the agreement.’’
Greenberg attempted to rebut this view by bringing
to the court’s attention an e-mail exchange between
counsel in which Roberts informed Kweskin that
research suggested that the deductibility of the alimony
would be put in jeopardy if the defendant were a residu-
ary beneficiary and inquired whether it would be a
problem for the defendant not to be a residuary benefi-
ciary of the trust. Kweskin questioned whether it was
proper for Greenberg to read this e-mail to the court,
to which the court replied: ‘‘Probably not.’’ Nonetheless,
Greenberg continued, noting that Kweskin indicated
that the defendant would not agree to relinquish residu-
ary benefits.
Kweskin’s response on this subject was that the plain-
tiff was required to obtain a legal opinion from a law-
yer, not an accountant. He pointed out that the letter
that Greenberg referred to was ‘‘a draft letter for dis-
cussion purposes only from an accountant.’’ Presum-
ably in response to Greenberg’s impossibility argument,
Kweskin argued that the defendant had brought a spe-
cial needs trust attorney to the hearing on the plaintiff’s
motion to open and vacate who came prepared to offer
an opinion that the defendant’s payments to the trust
would be tax deductible.
After these exchanges, the court posed questions
directly to the parties, who had been sworn in at the
court’s direction at the outset of the hearing. The only
questions directed to the plaintiff related to her income,
expenses, and needs. The questions directed to the
defendant addressed whether he had made any of the
payments required under the order (yes); whether he
had done so because he believed that he was obligated
to do so (yes); and whether the special needs trust
drafted by his expert afforded him the tax deduction
for the alimony (‘‘it did’’) and the residual benefits (‘‘I
think it did’’; ‘‘[y]es’’). At the close of the hearing, the
court informed the parties that it would take judicial
notice of the ‘‘entire file’’ to decide the motion.
The court thereafter issued an order, stating in rele-
vant part: ‘‘The court, having reviewed relevant portions
of the court file, considered the parties’ respective
financial affidavits, testimony of the parties, argument
of counsel, and the criteria set forth in [General Stat-
utes] § 46b-82, hereby grants the defendant’s postjudg-
ment motion for sanctions and for contempt. The court
finds by clear and convincing evidence that a court
order was entered on February 19, 2014, that the plain-
tiff violated that court order, and that the plaintiff’s
violation of the order was wilful.
‘‘The defendant is awarded attorney’s [fees] and
expert fees, postjudgment, in the amount of $169,225.61
. . . .’’ This award corresponded to the amount
Kweskin provided to the court at the hearing for all
litigation expenses the defendant incurred after the date
on which the oral stipulation was entered as an order.
After the plaintiff appealed from the judgment of
contempt to the Appellate Court, the defendant filed a
motion for an articulation. He asserted that the court’s
order could be construed as making the award based
on contempt, on litigation misconduct, or on both, and
asked the court to clarify this matter. The trial court
denied the request, and the defendant did not seek
review of that decision.
F
Appellate Proceedings
Before the Appellate Court, the plaintiff challenged
(1) the decision on postjudgment motions resolved by
stipulation, both as to whether the underlying stipula-
tion was enforceable and as to whether it was proper
to issue that decision, and (2) the order of contempt,
both as to the merits and the reasonableness of the
award. See Puff v. Puff, supra, 177 Conn. App. 103. The
Appellate Court affirmed the judgment with respect to
the decision on postjudgment motions and reversed the
judgment with respect to the contempt order. See id.,
105–106. In reversing the order of contempt, the Appel-
late Court apparently assumed that the only basis for
the award was the purportedly wilful violation of the
plaintiff’s obligation to ‘‘secure or endeavor to secure
a legal opinion that the deductibility by the defendant
of the alimony is not impacted by any action taken by
the plaintiff to assign the alimony to the trust.’’ (Internal
quotation marks omitted.) Id., 114. In rejecting that
basis, it reasoned: ‘‘It is undisputed that the plaintiff
made some effort to secure such a letter. Relying on the
draft opinion letter [from a certified public accountant],
she contends that it was impossible to obtain a correct
opinion that the defendant’s tax deductibility was not
jeopardized by his putative status as residual benefi-
ciary. The defendant counters that not only was it possi-
ble to obtain such a letter, but that he had obtained
such an opinion. In light of the undisputed fact that the
plaintiff made at least some effort to secure the opinion
letter, we are left with a definite and firm conviction
that the court’s finding of contempt was clearly errone-
ous.’’ Id., 128–29. In light of its reversal on the merits,
the Appellate Court did not address the reasonableness
of the award.
This court denied the plaintiff’s petition for certifica-
tion to appeal from the Appellate Court’s judgment inso-
far as it upheld the trial court’s decision on postjudg-
ment motions; see Puff v. Puff, 327 Conn. 994, 175 A.3d
1245 (2018); but granted the defendant’s petition to
appeal from that judgment insofar as it reversed the
contempt order. See Puff v. Puff, 327 Conn. 994, 175
A.3d 1245 (2018). In his certified appeal, the defendant
contends that the plaintiff did not comply with the legal
opinion requirement but that, in any event, the trial
court’s award was based on a broader course of conduct
beyond the failure to obtain that opinion.
After oral argument, this court issued an order to the
trial court, Tindill, J., directing it to provide this court
with an articulation as to five matters: (1) whether the
court’s order granting the defendant’s motion for sanc-
tions and for contempt was based solely on contempt
or also on litigation misconduct; (2) which part(s) of
the February 19, 2014 order provided the basis for the
finding of contempt; (3) what facts supported the find-
ing of contempt for each such part; (4) what competent
evidence those factual findings rested on; and (5) the
basis for the $169,225.61 award. See Practice Book § 61-
10 (b) (permitting reviewing court to order articula-
tion); see also Practice Book § 60-2 (permitting review-
ing court to order judge to take any action necessary
to complete record for proper presentation of appeal).10
In response, the trial court issued an articulation stat-
ing that its order was based both on the plaintiff’s wilful
contempt of the February, 2014 court order and her
subsequent litigation misconduct, which caused undue
delay and expense to the defendant. The trial court
identified the parts of the February, 2014 order that
were the bases for the court’s finding of wilful con-
tempt: (1) paragraph 8, which prohibits either party
from disparaging the other personally or professionally;
(2) paragraph 9, which requires the plaintiff to endeavor
to secure a legal opinion; and (3) paragraph 11, which
limits the parties’ disclosure or publication of the settle-
ment. An additional basis for the contempt, as explained
by the trial court, was ‘‘the representation on February
19, 2014, that the parties would subsequently work
together to reduce the agreement to writing consistent
with the agreement read into the record. In the event
of a dispute over the wording requiring the court’s
involvement, the parties asked that the court resolve
the dispute consistent with the expressed oral agree-
ment.’’ The articulation set forth seven facts,11 without
assigning them as support for any particular violation
of the order or designating them as applicable to con-
tempt or litigation misconduct and cited generically to
the following evidence in support of its factual findings:
the parties’ ‘‘testimony’’ and their financial affidavits
filed at the contempt hearing; various transcripts or
recordings of hearings; and thirty-two pleadings filed
by the plaintiff between March, 2009, when she filed
her motion for modification, and February, 2014, when
the court adopted the stipulation as an order of the
court. The basis of the court’s award of litigation costs
was not explained in relation to either contempt or
litigation misconduct but as resting on ‘‘representations
of counsel,’’ the defendant’s testimony at the hearing
on the motion for sanctions and for contempt, and the
affidavit of fees submitted by Kweskin.
We are compelled to conclude that the trial court’s
judgment of contempt must be reversed, although our
decision is necessarily based on different and broader
grounds than the one adopted by the Appellate Court
in reaching the same conclusion. We further conclude
that the sanction for litigation misconduct must be
reversed.
II
The following principles are material to our review
of the contempt order. ‘‘Contempt is a disobedience to
the rules and orders of a court which has power to
punish for such an offense.’’ (Internal quotation marks
omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d
1021 (2007); see also Blaydes v. Blaydes, 187 Conn. 464,
467, 446 A.2d 825 (1982) (‘‘[c]ourts have inherent power
to coerce compliance with their orders through appro-
priate sanctions for contemptuous disobedience of
them’’). The present case involves allegations of indirect
civil contempt. ‘‘A refusal to comply with an injunctive
decree is an indirect contempt of court because it
occurs outside the presence of the trial court.’’ (Internal
quotation marks omitted.) Brody v. Brody, 315 Conn.
300, 317, 105 A.3d 887 (2015).
‘‘[C]ivil contempt is committed when a person vio-
lates an order of court which requires that person in
specific and definite language to do or refrain from
doing an act or series of acts.’’ (Emphasis omitted;
internal quotation marks omitted.) Gabriel v. Gabriel,
324 Conn. 324, 333, 152 A.3d 1230 (2016); see also Pow-
ell-Ferri v. Ferri, 326 Conn. 457, 468, 165 A.3d 1124
(2017) (civil contempt may be founded only on clear
and unambiguous court order). In part because the
contempt remedy is ‘‘particularly harsh’’; Blaydes v.
Blaydes, supra, 187 Conn. 467; ‘‘such punishment
should not rest upon implication or conjecture, [and]
the language [of the court order] declaring . . . rights
should be clear, or imposing burdens [should be] spe-
cific and unequivocal, so that the parties may not be
misled thereby.’’ (Internal quotation marks omitted.)
Parisi v. Parisi, 315 Conn. 370, 382, 107 A.3d 920 (2015).
To constitute contempt, it is not enough that a party
has merely violated a court order; the violation must
be wilful. See, e.g., Eldridge v. Eldridge, 244 Conn. 523,
529, 710 A.2d 757 (1998); Connolly v. Connolly, 191
Conn. 468, 483, 464 A.2d 837 (1983). ‘‘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).’’ (Internal quotation marks omitted.) Eldridge
v. Eldridge, supra, 532.
It is the burden of the party seeking an order of
contempt to prove, by clear and convincing evidence,
both a clear and unambiguous directive to the alleged
contemnor and the alleged contemnor’s wilful noncom-
pliance with that directive. See, e.g., Norberg-Hurlburt
v. Hurlburt, 162 Conn. App. 661, 671, 133 A.3d 482
(2016); Marshall v. Marshall, 151 Conn. App. 638, 651,
97 A.3d 1 (2014); Statewide Grievance Committee v.
Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001);
see also Latino Officers Assn. City of New York, Inc.
v. New York, 558 F.3d 159, 164 (2d Cir. 2009). If the
moving party establishes this twofold prima facie case,
the burden of production shifts to the alleged contem-
nor to provide evidence in support of the defense of
an inability to comply with the court order. See, e.g.,
Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 397,
985 A.2d 319 (2009); Eldridge v. Eldridge, supra, 244
Conn. 532; Leslie v. Leslie, 174 Conn. 399, 403, 389 A.2d
747 (1978); see also Gascho v. Global Fitness Holdings,
LLC, 875 F.3d 795, 800 (6th Cir. 2017), cert. denied,
U.S. , 138 S. Ct. 2576, 201 L. Ed. 2d 294 (2018); Combs
v. Ryan’s Coal Co., 785 F.2d 970, 984 (11th Cir.), cert.
denied sub nom. Simmons v. Combs, 479 U.S. 853, 107
S. Ct. 187, 93 L. Ed. 2d 120 (1986).
The question of whether the underlying order is clear
and unambiguous is a legal inquiry subject to de novo
review. See, e.g., In re Leah S., supra, 284 Conn. 693.
If we answer that question affirmatively, we then review
the trial court’s determination that the violation was
wilful under the abuse of discretion standard. See id.,
693–94.
In conducting this review, we must be mindful of
due process concerns that arise in cases of indirect
contempt, i.e., where the court has not personally
observed the contempt. In the absence of an admission
of contempt, indirect contempt must be proven by clear
and convincing evidence. See Brody v. Brody, supra,
315 Conn. 318–19; see also Edmond v. Foisey, 111 Conn.
App. 760, 771, 961 A.2d 441 (2008) (‘‘A finding of indirect
civil contempt must be established by [clear and con-
vincing evidence] that is premised on competent evi-
dence presented to the trial court and based on sworn
testimony. . . . A trial-like hearing should be held if
issues of fact are disputed.’’ [Emphasis omitted; internal
quotation marks omitted.]). ‘‘A judgment of contempt
cannot be based on representations of counsel in a
motion, but must be supported by evidence produced
in court at a proper proceeding.’’ (Internal quotation
marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 60,
732 A.2d 808 (1999); accord Edmond v. Foisey, supra,
772; see also Baker v. Baker, 95 Conn. App. 826, 832–33,
898 A.2d 253 (2006).
In applying these standards to the record in the pres-
ent case, we are compelled to conclude that the order
of contempt must be reversed. Insofar as the articula-
tion cites paragraphs 8 and 11 of the oral stipulation,
respectively setting forth nondisparagement and non-
publication obligations, as bases for contempt, the
defendant did not advance either ground in his motion.
The record does not indicate that either ground was
belatedly advanced at the hearing on the motion. Nor
does the articulation identify any particular statement
that violates either provision. It is evident that to allow
the order of contempt to rest on either basis would
contravene the plaintiff’s due process rights. ‘‘[D]ue
process of law . . . requires that one charged with con-
tempt of court be advised of the charges against him,
have a reasonable opportunity to meet them by way of
defense or explanation, 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.)
Brody v. Brody, supra, 315 Conn. 317.
The articulation also relies on paragraph 9 of the oral
stipulation, which obligated the plaintiff to ‘‘secure, or
endeavor to secure, a legal opinion that deductibility
by the defendant is not impacted by any action taken
by the plaintiff to assign the alimony to the trust.’’12
The articulation recites as proof of the plaintiff’s wilful
violation of this provision the ‘‘undisputed’’ fact that
there was no letter from a certified public accountant
in the court file or such a letter submitted into evidence.
There are two problems with this reasoning. First, the
accountant’s draft written opinion was in the court file;
a copy is appended to the plaintiff’s motion to reargue
and reconsider the court’s November, 2014 memoran-
dum of decision memorializing the parties’ oral stipula-
tion.13 Second, and more fundamental, the court misallo-
cates the burden of proof to the plaintiff. It was the
defendant’s burden, as the moving party, to prove by
clear and convincing evidence that the plaintiff had
wilfully violated this obligation. An allegation contained
in the defendant’s motion for contempt does not suffice.
See Kelly v. Kelly, supra, 54 Conn. App. 60. The defen-
dant offered no testimony regarding the availability of
the written opinion despite the plaintiff’s claim of
responsibility, or the plaintiff’s failure to undertake
good faith efforts to obtain the opinion letter. The only
documentary evidence he submitted relevant to con-
tempt, his counsel’s affidavit in support of the request
for attorney’s fees, did not address this obligation.
Even if the trial court could have viewed statements
by Greenberg asserting that the plaintiff had obtained
the accountant’s opinion to meet her legal opinion obli-
gation as a judicial admission that relieved the defen-
dant of his burden of production; see Kanopka v.
Kanopka, 113 Conn. 30, 39, 154 A. 144 (1931) (noting
that judicial admission, which ‘‘may be made by a party
as well as by his counsel,’’ does away with need for
evidence to prove fact admitted); see also Brye v. State,
147 Conn. App. 173, 178, 81 A.3d 1198 (2013) (‘‘Judicial
admissions are voluntary and knowing concessions of
fact by a party or a party’s attorney occurring during
judicial proceedings. . . . They excuse the other party
from the necessity of presenting evidence on the fact
admitted and are conclusive on the party making them.’’
[Internal quotation marks omitted.]); the judicial admis-
sion would not suffice as proof of the fact admitted.14
The last basis on which the court’s articulation rested
its finding of contempt was the parties’ representation
to the court that they would subsequently work together
to reduce the agreement to writing consistent with the
oral stipulation put on the record and that, in the event
of a dispute over the wording, they would ask the court
to resolve the dispute consistent with the expressed
oral agreement. There are at least three problems with
a finding of contempt on this basis. First, this too was
not a ground on which the defendant sought an order
of contempt, raising the same due process concerns
previously cited.15 Second, presumably because this
ground was not included as part of his contempt motion
or related pleadings, the defendant did not offer any
evidence to prove contempt on this basis, and, there-
fore, he could not meet his burden of proof. Third, the
pleadings do not support the conclusion that the trial
court reached. The defendant’s motion for order does
not allege that his counsel made any effort to work
with the plaintiff or her counsel to memorialize the
stipulation prior to filing that motion. The motion indi-
cates that the defendant’s draft was provided to the
plaintiff for the first time on the same day that the
defendant filed the motion. Insofar as the stipulation
obligated the parties to bring disputes over wording to
the court’s attention, the record clearly reveals that the
plaintiff did so. The court’s finding of contempt on this
basis also cannot stand.
None of the bases relied on by the trial court for its
order of contempt supports that order. Although there
were two other bases advanced in the defendant’s
motion that the court did not cite in its articulation,
we must infer that the trial court rejected them. See
footnote 2 of this opinion (applying similar inference
to court’s failure to address plaintiff’s unclean hands
defense). Therefore, the order granting the defendant’s
motion for contempt must be reversed.
III
This leaves the ground of litigation misconduct as a
purported basis for the court’s $169,225.61 award of
attorney’s fees and expert fees. The trial court’s order,
even as supplemented by the articulation, is fatally
flawed.
An exception to the common-law rule that attorney’s
fees are not allowed to the successful party in the
absence of a contractual or statutory exception ‘‘is the
inherent authority of a trial court to assess attorney’s
fees when the losing party has acted in bad faith, vexa-
tiously, wantonly or for oppressive reasons. . . . [A]
litigant seeking an award of attorney’s fees for the bad
faith conduct of the opposing party faces a high hurdle.
. . . To ensure . . . that fear of an award of [attor-
ney’s] fees against them will not deter persons with
colorable claims from pursuing those claims, we have
declined to uphold awards under the [bad faith] excep-
tion absent both clear evidence that the challenged
actions are entirely without color and [are taken] for
reasons of harassment or delay or for other improper
purposes . . . and a high degree of specificity in the
factual findings of [the] lower courts. . . . Whether
a claim is colorable, for purposes of the [bad faith]
exception, is a matter of whether a reasonable attorney
could have concluded that facts supporting the claim
might be established, not whether such facts had been
established. . . . To determine whether the [bad faith]
exception applies, the court must assess whether there
has been substantive bad faith as exhibited by, for
example, a party’s use of oppressive tactics or its wilful
violations of court orders; [t]he appropriate focus for
the court . . . is the conduct of the party in instigating
or maintaining the litigation. . . .
‘‘[Our case law] makes clear that in order to impose
sanctions pursuant to its inherent authority, the trial
court must find both that the litigant’s claims were
entirely without color and that the litigant acted in bad
faith.’’ (Citations omitted; emphasis altered; internal
quotation marks omitted.) Berzins v. Berzins, 306
Conn. 651, 661–63, 51 A.3d 941 (2012); see Maris v.
McGrath, 269 Conn. 834, 846–47, 850 A.2d 133 (2004);
CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375,
394, 685 A.2d 1108 (1996), overruled in part on other
grounds by State v. Salmon, 250 Conn. 147, 154–55, 735
A.2d 333 (1999); see also Lederle v. Spivey, 332 Conn.
837, 848 n.8, 213 A.3d 481 (2019) (concluding that,
although subordinate findings must have high degree
of specificity, trial court need not separately indicate
which factual findings relate to which prong, colorabil-
ity or bad faith, because subordinate factual findings
that support bad faith could also support lack of color-
ability).
In the present case, even after the court was afforded
an opportunity to articulate the basis of its award, it
not only failed to support its decision with a high degree
of specificity, it failed to make the two critical findings
necessary to support its award for litigation miscon-
duct—that the plaintiff acted in bad faith and failed to
advance any colorable claims.16 Perhaps the trial court
operated under the misimpression that no such findings
are required when litigation misconduct arises in con-
nection with contempt. Such an approach, however,
clearly would be in tension with our case law not only
as to litigation misconduct, but also as to contempt,
which directs parties to resort to the courts rather than
to self-help to obtain relief from court-ordered obliga-
tions. See, e.g., Sablosky v. Sablosky, 258 Conn. 713,
720, 722, 784 A.2d 890 (2001); see also In re Leah S.,
supra, 284 Conn. 700 (court’s contempt case law
enforces ‘‘important public policy against resorting to
self-help tactics’’). The defendant did allege facts in
support of such findings. In other cases in which the
trial court has failed to make the essential findings due
to the application of an incorrect legal standard, we
have reversed and remanded for further proceedings.
See, e.g., Berzins v. Berzins, supra, 306 Conn. 663
(reversing and remanding for further proceedings when
trial court had failed to make finding of bad faith). Cf.
Rinfret v. Porter, 173 Conn. App. 498, 510, 513–16, 164
A.3d 812 (2017) (when trial court made twenty-eight
factual findings but did not state ‘‘which of those facts
supported its finding of ‘entirely without color’ and
which supported its finding of ‘bad faith conduct,’ ’’
reviewing court considered various theories under
which facts could support both litigation misconduct
prongs).
We conclude that it is appropriate to remand this
case for further proceedings on the defendant’s motion
for sanctions and that such proceedings should be con-
ducted by a new judge. At that time, the court is free
to consider postappeal matters that the plaintiff has
raised in this court regarding the defendant’s purported
judicial admission that the parties were mutually mis-
taken that the oral stipulation would provide the parties
with their intended benefits.17
The judgment of the Appellate Court is affirmed inso-
far as that court reversed the trial court’s finding of
contempt, remanded with direction to deny the defen-
dant’s motion for contempt, and affirmed the trial
court’s rulings on postjudgment motions; the judgment
of the Appellate Court is reversed with respect to the
trial court’s ruling on the defendant’s motion for sanc-
tions on the basis of litigation misconduct, the award
of attorney’s fees and expert fees is vacated, and the
case is remanded to the Appellate Court with direction
to remand the case to the trial court for further proceed-
ings on the defendant’s motion for sanctions in accor-
dance with this opinion.
In this opinion the other justices concurred.
1
Upon the termination of alimony payments, the defendant also was
obligated to pay the mortgage encumbering the marital residence until the
mortgage was paid in full.
2
The plaintiff has characterized the court’s ruling as resting on fraud
because the defendant had claimed that his earnings were expected to
decrease during the hearing on the motion to modify. The defendant disputes
this characterization, contending that he was unaware of his obligation to
disclose a pending offer of employment that had not been formally offered
and that the trial court made no express finding of fraud, just a violation
of the defendant’s duty to disclose. The basis of the ruling was not stated
on the record. Although the plaintiff cited this purported fraud as a basis
of an unclean hands defense to the defendant’s motion for contempt, the
trial court did not address this defense in its order finding the plaintiff in
contempt. In the absence of an articulation, which the plaintiff did not
request, we interpret that omission as an implicit rejection of that defense.
3
Roberts explained that the purpose of the special needs trust was to
keep the plaintiff’s income and assets below the threshold necessary to
qualify for government disability benefits.
4
The plaintiff contended that the defendant’s ability to invade the trust as
a residuary beneficiary and as a means of recovering disallowed deductions
rendered the trust invalid because the law requires the plaintiff to be the
sole beneficiary and the government provider of disability benefits to be
named as a beneficiary. She further contended that the provision making
the defendant a residuary beneficiary of the trust into which he was to
deposit the alimony payments prevented him from claiming those payments
as a deduction under tax law.
5
The plaintiff argued that the application of the provision that permitted
the defendant to recoup any tax deduction disallowed plus any penalties
assessed could result in the plaintiff’s receiving less than she had before
the modification, or even nothing.
6
The plaintiff’s motion was, as the trial court recognized, more comprehen-
sive than a typical motion, and it provided legal analysis and authority in
support of its mistake of law and impossibility grounds. The defendant
contested the propriety of treating the submission as a hybrid motion and
memorandum of law, and pointed out that it did not provide legal analysis
for all of the plaintiff’s claims.
7
The same day as the hearing, the plaintiff filed a motion to dismiss
and/or to strike the defendant’s motion for an order approving his draft
stipulation, which was dated the day before the trial court presented them
with the written stipulation. In the plaintiff’s motion, she argued that the oral
stipulation was not viable because of the failure of the condition precedent
of obtaining a tax opinion that the alimony would be tax deductible under the
terms of the stipulation. Two months later, the defendant filed an objection,
challenging the motion on procedural, jurisdictional (mootness), and sub-
stantive grounds. The court thereafter denied the plaintiff’s motion.
8
Although not expressly stated, we interpret Greenberg’s characterization
of the payments as ‘‘gratuitous’’ to refer to the amount in excess of the
defendant’s obligation under the court’s orders in place before the February,
2014 stipulation was ordered.
9
Davis is the special needs trust lawyer who was designated as the plain-
tiff’s expert in support of her motion to open and vacate.
10
We concluded that an articulation was necessary not merely because
the court’s order failed to identify what acts provided the basis for the
finding of contempt. It also was necessary because the court indicated that
its decision rested on undesignated, ‘‘relevant portions’’ of the entire judicial
file for the protracted litigation in the case and because the amount of the
award and the court’s comments at the hearing focusing on the plaintiff’s
litigation efforts raised the distinct possibility that the court had rested the
award in part on litigation misconduct. Moreover, this is not a case that
could be conclusively resolved if we were to determine that there was one
proper basis for making an award because that determination could be
insufficient to address the open question of whether the amount of the
award is reasonable.
11
We will discuss these facts as they become relevant to the discussion
that follows.
12
The defendant conceded at oral argument before this court that a legal
opinion that the deductibility would be impacted if the alimony were
assigned to the trust would meet this obligation.
13
The thirteen page document, dated March 1, 2014, is stamped ‘‘Draft—
For Discussion Purposes Only.’’ It opines that payments by a former spouse
to a third party (i.e., the special needs trust) could qualify as tax deductible
alimony but that such payments would be disqualified if the payor (the
defendant) is a residuary beneficiary of the trust. The draft cites various
federal tax code provisions and related agency regulations/rulings, applica-
ble case law, and a trust treatise in support of its opinion. It is unclear
whether the document’s stamp for ‘‘discussion purposes only’’ was related
to a footnote appended to the section heading entitled ‘‘Conclusion’’ that
stated: ‘‘The advice was not intended or written by the practitioner to be
used, and that it cannot be used by any taxpay[er], for the purpose of
avoiding penalties that may be imposed on the taxpay[er].’’ Comments from
Kweskin during the hearing on the motion for sanctions and for contempt
reflect that he had seen this opinion letter.
This opinion letter also was referenced in the plaintiff’s earlier filed motion
to open and vacate, which indicated that the opinion was ‘‘annexed’’ to that
motion. We did not find a copy of the opinion appended to this motion and
have no way of knowing whether it never was included or whether it was
included but became separated from the motion after it was filed.
We agree that the opinion letter was never submitted into evidence. When
Greenberg attempted to state the contents of the opinion letter at the Novem-
ber, 2014 hearing on the motion to open and vacate, the defendant objected.
The court, Heller, J., sustained the objection and noted that the plaintiff
could introduce the letter later. She did not do so in that proceeding. When
the location of the letter was raised at the subsequent contempt hearing, the
trial court, Tindill, J., effectively conveyed that the opinion was immaterial
because, even if it assumed that the letter existed, ‘‘[t]he problem with the
whole thing is that [the plaintiff] agreed to what was made a court order
and then she decided [that] she didn’t like the agreement.’’ Nonetheless, it
would have been the better practice for the plaintiff to formally submit this
document into evidence.
14
We observe that the trial court’s reliance on the absence of the accoun-
tant’s opinion from the record necessarily implies that it disagreed with the
defendant that the ‘‘legal opinion’’ required was one from an attorney. The
accountant’s opinion would otherwise be immaterial. The record does not
reflect the reason for the court’s disagreement. It may be that the court
concluded that the term ‘‘legal opinion’’ did not plainly and unambiguously
mean one from an attorney and reasonably could mean an opinion on tax
law from a professional qualified to provide that opinion for the purpose
for which it was given. That determination would have permitted the court
to consider Roberts’ statement when the oral stipulation was put on the
record, referring to the parties’ intention to seek advice from ‘‘a special
needs trust and a tax person.’’ See Afkari-Ahmadi v. Fotovat-Ahmadi, supra,
294 Conn. 390 (‘‘[b]ecause a stipulation is considered a contract, [o]ur inter-
pretation of a separation agreement that is incorporated into a dissolution
decree is guided by the general principles governing the construction of
contracts’’ [internal quotation marks omitted]); see also Parisi v. Parisi,
supra, 315 Conn. 382–83 (agreement incorporated into dissolution judgment
is construed under contract principles, under which clear and unambiguous
language renders parties’ intent question of law, and extrinsic evidence is
admissible to explain ambiguity in instrument). Alternatively, the court may
have relied on estoppel. At the hearing on the defendant’s motion for order,
when the plaintiff first brought the accountant’s opinion to the court’s
attention, the defendant argued that the plaintiff had never provided him
with that opinion, as she was required to under the stipulation. This state-
ment clearly implied that an opinion from an accountant could meet that
obligation. The plaintiff’s assumption that this was the case is reflected in
two court filings prior to the defendant’s moving to hold her in contempt.
See, e.g., Shanahan v. Dept. of Environmental Protection, 305 Conn. 681,
708, 47 A.3d 364 (2012) (‘‘[t]here are two essential elements to an estoppel—
the party must do or say something that is intended or calculated to induce
another to believe in the existence of certain facts and to act upon that
belief; and the other party, influenced thereby, must actually change his
position or do some act to his injury which he otherwise would not have
done’’ [internal quotation marks omitted]). Whether an accountant’s letter
is sufficient demonstrates an ambiguity, making contempt inappropriate. In
other words, it was a reasonable interpretation to believe that an accoun-
tant’s letter was enough.
15
The defendant did include in his allegations of fact that the trial court’s
memorandum of decision memorializing the oral stipulation ‘‘became neces-
sary as a result of the plaintiff’s refusal jointly to submit in writing the terms
the parties had orally agreed to on February 19, 2014. However, the defendant
never claimed that the plaintiff’s conduct in this particular regard consti-
tuted contempt.
16
Certain comments by the court at the hearing on the motion for sanctions
imply that the court may have held this view, including the court’s complaint
that the plaintiff had accepted the $10,000 monthly alimony payments while
disputing the validity of the agreement. The implication is not a necessary
one, however, and we will not supply it by inference in the present context.
17
The plaintiff filed a motion for a supervisory order that informed us
that, after oral argument before this court, the defendant successfully moved
to open and vacate the order on which the contempt rested on the ground
of mutual mistake. She contends that the defendant’s position in the motion
was consistent with her position during litigation and that he should be
judicially estopped from claiming otherwise. In his motion to vacate, the
defendant admitted that the parties had mistakenly believed that the terms
of the oral stipulation would allow the tax deduction and would provide
the basis for a valid special needs trust, and contended that the parties
could have rectified these concerns by adding and deleting certain terms,
but the plaintiff would not agree to execute a trust that would afford him
the benefits intended.