Keller v. Keller ( 2015 )

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KELLER v. KELLER—DISSENT
PRESCOTT, J., concurring in part and dissenting in
part. I agree with part I of the majority opinion and, on
the basis of the reasons set forth therein, concur that
the present appeal is not moot. I do not agree, however,
with the majority’s conclusion in part II of the opinion
that the orders at issue were sufficiently clear and
unambiguous to support a finding of contempt under
the circumstances presented. Because I would reverse
the judgment of the court, I respectfully dissent.
The majority opinion accurately sets forth the facts
and procedural history as well as the law that guides
our review of the court’s finding of contempt. It is
important, however, to emphasize the following: ‘‘Civil
contempt is committed when a person violates 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. . . . Whether an order is sufficiently
clear and unambiguous is a necessary prerequisite for
a finding of contempt because [t]he contempt remedy
is particularly harsh . . . and may be founded solely
upon some clear and express direction of the court.
. . . One cannot be placed in contempt for failure to
read the court’s mind. . . . It is also logically sound
that a person must not be found in contempt of a court
order when ambiguity either renders compliance with
the order impossible, because it is not clear enough to
put a reasonable person on notice of what is required
for compliance, or makes the order susceptible to a
court’s arbitrary interpretation of whether a party is in
compliance with the order.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) In re
Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). It is
with these principles in mind that I depart from the
majority’s conclusion in the present case that there was
a sufficiently clear and unambiguous order to support
a finding of contempt.
The automatic order in Practice Book § 25-5 (a) (2),
by its very terms, applies to a ‘‘party vacating the family
residence,’’ in other words, a move from the marital
home. Although it may make sense as a matter of policy
to construe that order as also pertaining to subsequent
moves, the ambiguity regarding whether it does apply
to later moves prevents the plaintiff from being held in
contempt under the circumstances of the present case.
With respect to the June, 2012 order, the order is
ambiguous in several significant regards. First, it does
not indicate whether notice of a change in address must
be given in writing or whether an oral or electronic
notification is permissible. Second, the order provides
no definitive time frame in which notice must be given.
In this case, the record is clear that the plaintiff, Beth
Keller, had told the defendant, Richard Keller, where
she was living, and that, prior to the filing of the motion
for contempt, he had gone to her new residence to drop
off the children. In fact, it was undisputed that the
defendant had driven to the plaintiff’s new residence
twice on the day immediately following the plaintiff’s
move. Additionally, the plaintiff could not have violated
the obligation to provide the defendant with a new
telephone number because her number had not
changed.
In concluding that the plaintiff could not be held in
contempt under the circumstances presented and with
respect to these ambiguous orders, I do not want to
minimize the obligation of a divorcing parent to work
cooperatively with the other parent so as to meet the
best interest of their children. Nevertheless, a finding
of contempt cannot be justified in circumstances in
which the plaintiff either attempted to comply or was
subject to an ambiguous order. Accordingly, I respect-
fully dissent.