Aliano v. Aliano , 148 Conn. App. 267 ( 2014 )

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TERRY ALIANO v. MICHAEL ALIANO
(AC 34830)
DiPentima, C. J., and Sheldon and Foti, Js.
Argued October 16, 2013—officially released February 18, 2014
(Appeal from Superior Court, judicial district of New
London at Norwich, Shluger, J.)
John F. Morris, for the appellant (plaintiff).
Timothy P. Lenes, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Terry Aliano,1 appeals
from the denial of her postdissolution motion for con-
tempt filed against the defendant, Michael Aliano. On
appeal, she claims that the court improperly found that
the defendant’s failure to pay a lump sum financial
award was not wilful noncompliance with the terms
of the parties’ dissolution judgment. We disagree, and,
accordingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our discussion. The parties were married on
February 24, 2007. In March, 2010, the plaintiff com-
menced an action seeking a dissolution of the marriage.
On November 2, 2011, following a bifurcated trial, the
court issued two memoranda of decision; one
addressing custody and access regarding the parties’
minor child and one addressing the various financial
issues.2 The court found that the defendant was the
president and chief executive officer of a number of
family businesses founded by his deceased father, Ron-
ald Aliano (decedent). The estate of the decedent was
the subject of a probate dispute involving a woman who
claimed to be an heir of the decedent. Nevertheless,
the defendant was expected to ‘‘inherit a significant
portion of the estimated $10 million estate.’’ The court
issued a number of financial orders, including awarding
alimony to the plaintiff for a limited time period and
dividing the parties’ property. With respect to the defen-
dant’s expected inheritance from the decedent’s estate,
the court ordered in paragraph 12 of its decision: ‘‘The
[defendant] shall make a payment to the [plaintiff] in
the amount of $100,000 within 30 days of his receiving
his inheritance so long as such receipt is in excess
of $250,000.’’
On June 21, 2012, the plaintiff filed a motion for
contempt, alleging that the defendant had wilfully
failed, refused or neglected to pay her the $100,000 as
required by the court’s judgment. She further claimed
that ‘‘[o]n March 30, 2012, the Norwich Probate Court
distributed the business known as American Ambu-
lance Service, Inc., in equal parts between [the defen-
dant] and . . . Rhonda Aliano Quinn (the [d]efendant’s
sister). The said distribution was the major asset of the
estate valued in excess of $4,700,000.’’ In addition to
seeking a finding of contempt and payment of the
$100,000, the plaintiff requested that the court order the
defendant to pay statutory interest pursuant to General
Statutes § 37-3a and attorney’s fees related to the prose-
cution of her contempt motion.3
The court held a hearing on July 16, 2012, where
the plaintiff called as a witness Andrew Messier, the
executor of the decedent’s estate and the trustee for
two of the trusts associated with the estate. Messier
testified that the defendant received 50 percent of the
shares of stock of an ambulance company owned by
the decedent. The value of the stock received by the
defendant was $2,350,000. This was the only distribu-
tion from the estate to the defendant.
The plaintiff testified that she had not received the
$100,000 payment and that the defendant had not
informed her of his receipt of a portion of his inheri-
tance. The defendant testified that he had not received
any cash or negotiable instruments from the decedent’s
estate and that a trial was pending in the Probate Court
regarding all of the other assets of that estate. The
defendant stated that he anticipated receiving a sub-
stantial amount of cash from the decedent’s estate. Dur-
ing cross-examination, in response to a question about
whether he had ever made an effort to communicate
with the plaintiff about the inheritance issue, the defen-
dant stated: ‘‘It’s my understanding I did not have to
pay that until which time I got all my inheritance, and
it was cash. [My attorney] was aware I would be paying
[the plaintiff] when I got the liquid assets to pay her. I
don’t have the money to pay her right now.’’ He then
iterated that he had not received his total inheritance,
and the portion that he had was in the form of stock.
At the conclusion of the hearing, the court stated:
‘‘This was an interesting legal argument . . . but I don’t
think it goes to what the court’s intention was in para-
graph [12] of the judgment. It was the court’s intent
that [the defendant] would pay that sum of cash when
he received cash. And the court knew that he was going
to receive real estate; the court knew he was going to
receive stock in a closely held corporation, but the
court specifically used as the trigger point when he
received in excess of $250,000, and he hasn’t yet done
that. So, I don’t find he is in contempt. And I don’t find
the trigger has been pulled yet. Frankly, if he received
$250,000 in negotiable securities, in marketable securi-
ties, in a publically traded company that could be sold
on the open market, I would read the situation differ-
ently. I don’t view he has the liquid money from his
inheritance yet. . . . It says in excess of $250,000. That
was my intent. And it is not my intent that, [the defen-
dant], in case you are thinking that all of your inheri-
tance has to be complete, but when you receive $250,000
of liquid assets, marketable securities, you should pay
[the plaintiff] $100,000. That contempt, if there is one,
would be viewed differently.’’
Counsel for the plaintiff inquired whether the court
was clarifying the dissolution judgment so that the
$100,000 obligation would be triggered only if the defen-
dant received an inheritance of cash. The court
responded: ‘‘I’d rather not do that because there isn’t
a motion to clarify. If and when he receives something
that is readily convertible to cash, I would certainly
entertain your motion for contempt if it wasn’t effectu-
ated, but if it is a building that might be sold, might not
be sold, that is probably in that gray area that I won’t
go that far. When there is cash, when there is stock in
a publically traded corporation, that I consider to be
readily available cash.’’ The plaintiff’s counsel then
questioned whether the court was altering the terms of
the dissolution judgment, to which the court responded,
‘‘[t]hat’s not what I am doing.’’ The following colloquy
then occurred between the plaintiff’s counsel and the
court:
‘‘[The Plaintiff’s Counsel]: I understand you are not
doing that, and I am troubled because it sounds like it
is going in that direction, because he is involved with
litigation with a [person claiming to be an heir of the
decedent] that could be going on for years. We could
be sitting here for years waiting for the [probate] litiga-
tion to finish as it goes through the appellate process.
Your order is simple and one sentence; as long as it is
more than $250,000. I claim we have to satisfy that
hurdle. For Your Honor to add to the record marketable
securities or cash, it changes the nature and that
becomes an issue.
‘‘The Court: There is no motion to clarify. The court
has not clarified, modified or changed the judgment. It
is what it is. I think I was suggesting to [the defendant]
that if and when he receives the ability to pay, he should
pay [the plaintiff], but I am not ruling on a motion that
is not before me, and I am not changing the judgment.
‘‘[The Plaintiff’s Counsel]: I can’t get a ruling on the
fact that he has received more than two and one-half
million dollars of assets so far? I am trying to figure
out how to justify that.
‘‘The Court: To the extent that I have muddied the
order sufficiently, I will vacate the order that I just
made. I will vacate the findings that I just made. I am
going to vacate the dicta which I just made. The motion
for contempt is denied.’’
The plaintiff then filed the present appeal, arguing
that the court’s order was clear and unambiguous and
that the court abused its discretion by modifying the
property order and by failing to find the defendant in
contempt. Because the trial court had vacated all of its
findings underlying the order, vacated the order, and
then denied the motion for contempt without providing
the reasoning for doing so, we issued the following
order on November 5, 2013: ‘‘Pursuant to Practice Book
§§ 61-10 (b) and 60-5, the trial court . . . is hereby sua
sponte ordered to articulate, within thirty days of this
order, the factual findings and legal basis underlying
its denial of the motion for contempt.’’4
On November 21, 2013, the court issued its articula-
tion regarding the denial of the plaintiff’s motion for
contempt. The court stated that ‘‘[t]he defendant had
inherited stock in a closely held family business. He
inherited no dollars. Stock in a closely held family busi-
ness is not dollars.’’ The court also articulated that the
defendant had not received any other distribution from
the Probate Court, he did not possess $100,000 of cash
at the time of the hearing on the contempt motion and
therefore was unable to pay that sum to the plaintiff,
and the plaintiff presented no evidence that the defen-
dant had inherited any cash or that ‘‘the stock in a
closely held family business was liquid or otherwise
readily convertible into dollars or that there existed a
market for said shares.’’ The court also determined that
its order was ambiguous because it did not state
whether the $250,000 trigger to pay $100,000 to the
plaintiff must be in ‘‘actual dollars or other assets valued
at $250,000.’’ It further concluded that ‘‘[t]he defendant’s
failure to pay to the plaintiff $100,000 upon receiving
shares of stock in his family business was not a wilful
disobedience of a clear and understandable order;
rather, it illustrates a good faith disagreement as to
what was meant in that court order. The defendant had
a good faith belief that his receipt of stock in the family
business was not the condition precedent triggering
his obligation to pay to the plaintiff $100,000. . . . The
defendant’s interpretation of the court order was rea-
sonable and made in good faith. Any violation was
excused by what can only be a good faith dispute or
misunderstanding.’’
We begin our analysis by setting forth the relevant
legal principles and our standard of review. ‘‘Contempt
is a disobedience [of] the rules and orders of a court
which has power to punish for such an offense. . . .
Contempt may be civil or criminal in character. . . .
A civil contempt is one in which the conduct constitut-
ing the contempt is directed against some civil right of
an opposing party and the proceeding is initiated by
him. . . . [T]he punishment [for civil contempt] is
wholly remedial, serves only the purposes of the com-
plainant, and is not intended as a deterrent to offenses
against the public.’’ (Citation omitted; internal quotation
marks omitted.) Hardy v. Superior Court, 305 Conn.
824, 834, 48 A.3d 50 (2012); see also Eric S. v. Tiffany
S., 143 Conn. App. 1, 9, 68 A.3d 139 (2013).
‘‘[O]ur analysis of a judgment of contempt consists
of two levels of inquiry. First, we must resolve the
threshold question of whether the underlying order con-
stituted a court order that was sufficiently clear and
unambiguous so as to support a judgment of contempt.
. . . This is a legal inquiry subject to de novo review.
. . . Second, if we conclude that the underlying court
order was sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.’’
(Citations omitted.) In re Leah S., 284 Conn. 685, 693–
94, 935 A.2d 1021 (2007); Przekopski v. Zoning Board
of Appeals, 131 Conn. App. 178, 191, 26 A.3d 657, cert.
denied, 302 Conn. 946, 30 A.3d 1 (2011); Lynn v. Lynn,
130 Conn. App. 319, 327, 23 A.3d 771 (2011); see also
Martocchio v. Savoir, 130 Conn. App. 626, 630, 23 A.3d
1282, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).
In the present case, the court articulated that its order
requiring the defendant to pay $100,000 to the plaintiff
after he received $250,000 of his inheritance ‘‘was
ambiguous because it did not specify whether the inher-
itance of $250,000 must be in actual dollars or other
assets valued at $250,000.’’ We are not bound by the
trial court’s assessment of the clarity of the order at
issue; rather, that presents a legal question subject to
de novo review by this court. See In re Leah S., supra,
284 Conn. 693–94; Przekopski v. Zoning Board of
Appeals, supra, 131 Conn. App. 191. Nevertheless, we
need not resolve this issue in the present case.5 Even
if we assume, without deciding, that the order was clear
and unambiguous, we conclude that the court did not
abuse its discretion in denying the plaintiff’s motion
for contempt.
In its articulation, the court stated that at the time
of the hearing on the plaintiff’s motion, ‘‘the defendant
did not possess $100,000 of cash and so was unable to
pay that sum, even if it had been due.’’ It also stated
that the defendant ‘‘had a good faith belief that his
receipt of stock in the family business was not the
condition precedent triggering his obligation to pay to
the plaintiff $100,000’’ and therefore, was a good faith
disagreement as to what was meant by the order, and
was not wilful disobedience. It concluded that ‘‘[a]ny
violation was excused by what can only be a good faith
dispute or misunderstanding.’’
At the outset, we note that ‘‘[t]he fact that an order
has not been complied with fully does not dictate that a
finding of contempt must enter.’’ Auerbach v. Auerbach,
113 Conn. App. 318, 326, 966 A.2d 292, cert. denied, 292
Conn. 901, 971 A.2d 40 (2009). ‘‘A finding of contempt
is a question of fact, and our standard of review is to
determine whether the court abused its discretion in
[finding] that the actions or inactions of the [alleged
contemnor] were in contempt of a court order. . . .
To constitute contempt, a party’s conduct must be wil-
ful. . . . Noncompliance alone will not support a judg-
ment of contempt. . . . [T]he credibility of witnesses,
the findings of fact and the drawing of inferences are
all within the province of the trier of fact. . . . We
review the findings to determine whether they could
legally and reasonably be found, thereby establishing
that the trial court could reasonably have concluded as
it did.’’ (Internal quotation marks omitted.) Quaranta
v. Cooley, 130 Conn. App. 835, 840–41, 26 A.3d 643(2011); see also Adamo v. Adamo, 123 Conn. App. 38,
49–50, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d
830 (2010).
The court articulated that the defendant lacked the
ability to pay $100,000 to the plaintiff. At the hearing,
the defendant testified: ‘‘I don’t have the money to pay
[the plaintiff] right now.’’ The court’s finding, as set
forth in its articulation, was based on the evidence and
was not clearly erroneous. In making the finding of
the defendant’s inability to pay, the court credited the
defendant’s testimony. We defer to the court’s assess-
ment of the credibility of the defendant. See Behrns v.
Behrns, 124 Conn. App. 794, 811, 6 A.3d 184 (2010) (trial
judge sole arbiter of credibility and reviewing court
unable to pass on credibility of witness). This finding
also provides us with a basis to conclude that the court’s
denial of the motion for contempt did not constitute
an abuse of discretion. ‘‘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.’’ (Internal quotation
marks omitted.) Auerbach v. Auerbach, supra, 113
Conn. App. 328; see also Ahmadi v. Ahmadi, 294 Conn.
384, 398, 985 A.2d 319 (2009) (‘‘The contemnor must
establish that he cannot comply, or was unable to do
so. . . . It is [then] within the sound discretion of the
court to deny a claim of contempt when there is an
adequate factual basis to explain the failure.’’ [Internal
quotation marks omitted.]); Brody v. Brody, 145 Conn.
App. 654, 662, 77 A.3d 156 (2013).
The court also stated in its articulation that it found
that the defendant’s interpretation of the court order
was reasonable and made in good faith, and thus did
not amount to wilful disobedience. ‘‘The contempt rem-
edy is particularly harsh . . . and may be founded
solely upon some clear and express direction of the
court. . . . A good faith dispute or legitimate misun-
derstanding of the terms of an alimony or support obli-
gation may prevent a finding that the payor’s
nonpayment was wilful. This does not mean, however,
that such a dispute or misunderstanding will preclude
a finding of wilfulness as a predicate to a judgment of
contempt. Whether it will preclude such a finding is
ultimately within the trial court’s discretion.’’ (Internal
quotation marks omitted.) Behrns v. Behrns, supra, 124
Conn. App. 808; see also Martocchio v. Savoir, supra,130 Conn. App. 630.
At the hearing, the defendant testified: ‘‘It’s my under-
standing I did not have to pay that until which time I
got all my inheritance, and it was cash. [My attorney]
was aware I would be paying [the plaintiff] when I got
the liquid assets to pay her.’’ The court was free to
credit that testimony and to determine that the nonpay-
ment was based on the defendant’s good faith dispute or
legitimate misunderstanding of the terms of the court’s
order. As such, we cannot say this constituted an abuse
of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff is now known as Terry McDonald.
2
This court has not been provided with the transcripts of the underlying
dissolution action.
3
‘‘Our law for awarding attorney’s fees in contempt proceedings is clear.
General Statutes § 46b-87 provides that the court may award attorney’s fees
to the prevailing party in a contempt proceeding. The award of attorney’s
fees in contempt proceedings is within the discretion of the court. . . . In
making its determination, the court is allowed to rely on its familiarity with
the complexity of the legal issues involved. Indeed, it is expected that the
court will bring its experience and legal expertise to the determination of
the reasonableness of attorney’s fees.’’ (Internal quotation marks omitted.)
Kravetz v. Kravetz, 126 Conn. App. 459, 471, 11 A.3d 1141 (2011).
4
Practice Book § 61-10 (b) provides in relevant part: ‘‘If the court deter-
mines that articulation of the trial court decision is appropriate, it may
remand the case pursuant to Section 60-5 for articulation by the trial court
within a specified time period. After remand to the trial court for articulation,
the trial court may, in its discretion, require assistance from the parties in
order to provide the articulation. Such assistance may include, but is not
limited to, supplemental briefs, oral argument and provision of copies of
transcripts and exhibits.’’ The official commentary to § 61-10 provides in
relevant part: ‘‘Subsection (b) was adopted to effect a change in appellate
procedure by limiting the use of the forfeiture sanction imposed when an
appellant fails to seek an articulation from the trial court pursuant to Section
66-5 with regard to an issue on appeal, and the court therefore declines to
review the issue for lack of an adequate record for review. In lieu of refusing
to review the issue, when the court determines that articulation is appro-
priate, the court may now remand the case to the trial court for an articulation
and then address the merits of the issue after articulation is provided.
The adoption of subsection (b) is not intended to preclude the court from
declining to review an issue where the record is inadequate for reasons
other than solely the failure to seek an articulation, such as, for example,
the failure to procure the trial court’s decision pursuant to Section 64-1 (b)
or the failure to provide a transcript, exhibits or other documents necessary
for appellate review.’’
Practice Book § 60-5 provides in relevant part: ‘‘If the court deems it
necessary to the proper disposition of the cause, it may remand the case
for a further articulation of the basis of the trial court’s factual findings or
decision. . . .’’
5
For this court to determine whether the order requiring the defendant
to pay $100,000 to the plaintiff following his receipt of the stock portion of
his inheritance was clear and unambiguous, we would examine the relevant
memorandum of decision that dissolved the marriage of the parties and
contained the financial orders of the court. See, e.g. McCarthy v. Custom
Design Services, Inc., 126 Conn. App. 274, 280–81, 11 A.3d 1094 (2011). The
following course of action would be our guide: ‘‘[T]he construction of a
judgment is a question of law for the court. . . . As a general rule, judgments
are to be construed in the same fashion as other written instruments. . . .
The determinative factor is the intention of the court as gathered from all
parts of the judgment. . . . The interpretation of a judgment may involve
the circumstances surrounding the making of the judgment. . . . Effect
must be given to that which is clearly implied as well as that which is
expressed.’’ (Citations omitted; emphasis added; internal quotation marks
omitted.) Lashgari v. Lashgari, 197 Conn. 189, 196–97, 496 A.2d 491 (1985);
see also Christiano v. Christiano, 131 Conn. 589, 592–93, 41 A.2d 779 (1945);
Lynn v. Lynn, supra, 130 Conn. App. 328 (‘‘[i]n [interpreting a judgment],
it assists a reviewing court to keep in mind the theory on which the case
was tried and on which the trial court decided it’’ [emphasis added; internal
quotation marks omitted]). As stated in footnote 2 of this opinion, we have
not been provided with the transcripts of the proceedings underlying the
two memoranda of decision that dissolved the parties’ marriage and con-
tained the attendant child custody and financial orders. Without these tran-
scripts, we are precluded from examining the circumstances surrounding
the making of the court’s judgment and the order at issue.