M. B. v. S. A. ( 2019 )

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M. B. v. S. A.*
(AC 42237)
DiPentima, C. J., and Lavine and Bishop, Js.
Syllabus
The plaintiff, who previously had filed an application for joint custody of
his minor child with the defendant, to whom he was never married,
appealed to this court from orders of the trial court granting certain
postjudgment motions for contempt filed by the defendant and awarding
her attorney’s fees. After the trial court awarded sole legal and primary
physical custody of the parties’ minor child to the defendant and ordered
the plaintiff to pay child support to the defendant, the plaintiff filed a
separate appeal from that judgment. While that appeal was pending, the
trial court granted multiple postjudgment motions for contempt filed
by the defendant for the plaintiff’s failure to make, inter alia, child
support payments, and ordered the plaintiff to pay attorney’s fees
incurred by the defendant in litigating her motions for contempt. On
appeal, the plaintiff claimed that the trial court erred in finding him in
contempt for nonpayment of support orders while those orders were
on appeal, prioritizing the resolution of motions for contempt over a
pending motion pertaining to visitation, failing to consider his financial
affidavits, awarding attorney’s fees to the defendant and accepting the
defendant’s affidavits of fees with incorrect docket numbers. Held:
1. The trial court did not abuse its discretion in granting the defendant’s
postjudgment motions for contempt against the plaintiff for his failure
to make timely support payments; the plaintiff having failed to file a
motion for a stay of the support orders during the pendency of the
appeal, his weekly support payments were still due as scheduled.
2. The trial court did not abuse its discretion in scheduling and adjudicating
the defendant’s postjudgment motions for contempt before resolving
the defendant’s motion for modification of visitation; that court had
broad discretion to manage its docket and resolve cases as it saw fit,
and the record did not reveal, nor did the plaintiff point to, any evidence
establishing that the court’s decision was unreasonable, as it was reason-
able for the court to dispose of motions in the manner it considered to
be most efficient, especially given the number of motions filed by both
parties throughout this case.
3. The plaintiff could not prevail on his claim that the trial court erred in
not considering his financial affidavits in ruling on the defendant’s
motions for contempt; it was plain from the record that the court did
consider the evidence the plaintiff presented but found his affidavits
and testimony to be not credible, and that he had the ability to pay his
portion of ordered child care expenses, and because the court had the
sole discretion to assign weight to the evidence, it was free to make
that credibility determination, and it did not abuse its discretion in
finding the plaintiff in contempt for failing to make support payments.
4. The trial court did not abuse its discretion in ordering the plaintiff to
pay attorney’s fees incurred by the defendant in connection with her
postjudgment contempt motions; although the plaintiff claimed that a
ruling of the court regarding arrearages had the effect of vacating the
contempt orders underlying the arrearages, the court’s order vacating
any findings of arrearages, which was made in accordance with this
court’s decision in the plaintiff’s separate appeal, did not trigger a retro-
active vacation of the underlying contempt orders or the related sanc-
tions, and, thus, the contempt orders stayed intact.
5. The trial court did not abuse its discretion by accepting certain financial
affidavits that had been filed by the defendant under incorrect docket
numbers; a scrivener’s error such as an incorrect docket number consti-
tutes a circumstantial defect and does not deprive the trial court of juris-
diction.
Argued October 10—officially released December 10, 2019
Procedural History
Application for custody of the parties’ minor child,
brought to the judicial district of Stamford-Norwalk and
transferred to the judicial district of New Haven, where
the court, Tindill, J., rendered judgment in favor of the
defendant; thereafter the court granted the defendant’s
motions for contempt and awarded her attorney’s fees,
and the plaintiff appealed to this court. Affirmed.
M. B., self-represented, the appellant (plaintiff).
David M. Moore, for the appellee (defendant).
Opinion
BISHOP, J. The self-represented plaintiff, M. B.,
appeals from the trial court’s orders, rendered in a child
custody action, granting certain postjudgment motions
for contempt filed by the defendant, S. A., and awarding
her attorney’s fees as a sanction against the plaintiff.
Specifically, the plaintiff contends that the court erred
in (1) finding him in contempt for nonpayment of sup-
port orders when the support orders were on appeal,
(2) prioritizing the resolution of motions for contempt
over a simultaneously pending motion pertaining to
child visitation (3) failing to consider financial affidavits
he had submitted, (4) awarding the defendant attorney’s
fees in connection with the granted contempt motions,
and (5) accepting the defendant’s affidavits of fees with
incorrect docket numbers. We affirm the judgment of
the trial court.
The following facts, as evidenced by the record, and
procedural history are relevant to this appeal. The plain-
tiff and the defendant are an unmarried couple who are
the parents of their minor child, born in June, 2014. After
the child’s birth, the plaintiff filed an action seeking joint
legal custody of the child. By way of a memorandum
of decision issued on September 7, 2016, the trial court,
Tindill, J., awarded sole legal and primary physical
custody to the defendant. The award provided for the
plaintiff to have parenting time on weekends, restricted
entirely to the town of Greenwich. The plaintiff, who
resided in New York City at the time, thereafter rented
an apartment in Greenwich solely to exercise parenting
time with his child. The award further ordered the plain-
tiff to pay $253 per week to the defendant in child
support payments. Additionally, the court granted a
number of motions for contempt filed by the defendant
that were predicated on the plaintiff’s failure to pay
unreimbursed medical expenses and work-related child
care, as ordered pendente lite, and the court calculated
an arrearage. On November 18, 2016, the court issued
a corrected memorandum of decision in which, inter
alia, it corrected various grammatical and calculation
errors.
Prior to the issuance of the corrected memorandum
of decision on November 18, 2016, the plaintiff filed
an appeal on September 22, 2016, asking this court to
consider whether the trial court erred in not considering
how its orders impacted his rental expenses for the
Greenwich apartment that he is required to maintain
to have parenting time with his child.
During the pendency of that appeal, between Octo-
ber, 2016 and June, 2017, the defendant filed multiple
postjudgment motions for contempt against the plaintiff
for failing to make both arrearage payments and child
support payments as required by the September 7, 2016
support orders. On June 16, 2017, the court ordered the
defendant to submit an affidavit regarding attorney’s
fees she had incurred in pursuing her postjudgment
motions for contempt.
On December 11, 2017, the court granted one of the
defendant’s motions for contempt, filed on October 17,
2016, finding that the plaintiff had failed to pay his
required share of the work-related child care expenses.
Following the plaintiff’s failure to pay the arrearage by
the date set by the court, January 31, 2018, the court
ordered the plaintiff to be incarcerated, setting a purge
amount of $15,000. The plaintiff paid the purge amount
that same day and was released from custody. On April
16, 2018, the court granted four more of the defendant’s
postjudgment motions for contempt, two of which were
filed on December 21, 2016, and two others that were
filed on March 9, 2017, determining that the plaintiff
had failed to pay work-related child care costs, unreim-
bursed medical expenses, child support payments, and
child support arrearages.
In May, 2018, this court issued its decision in the
prior appeal. This court determined that the trial court
had abused its discretion in failing to analyze whether
the plaintiff’s significant visitation expenses warranted
a deviation from the child support guidelines and
remanded the matter for a new hearing on this issue.
This court otherwise affirmed the judgment of the
trial court.
Also in May, 2018, the trial court issued an order
vacating its findings of arrearages with respect to the
expenses underlying the defendant’s postjudgment
motions for contempt.1 On October 15, 2018, the trial
court ordered $9825 in attorney’s fees to be paid by the
plaintiff in connection with expenses incurred by the
defendant for litigating those same motions for con-
tempt. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
We first set forth the applicable standard of review.
‘‘The well settled standard of review in domestic rela-
tions cases is that this court will not disturb trial court
orders unless the trial court has abused its legal discre-
tion or its findings have no reasonable basis in the facts.
. . . As has often been explained, the foundation for
this standard is that the trial court is in a clearly advanta-
geous position to assess the personal factors significant
to a domestic relations case, such as demeanor and
attitude of the parties at the hearing. . . . In determin-
ing whether there has been an abuse of discretion, the
ultimate issue is whether the court could reasonably
conclude as it did. . . .
‘‘[Further, in] determining [whether there has been
an abuse of discretion] the unquestioned rule is that
great weight is due to the action of the trial court and
every reasonable presumption should be given in favor
of its correctness. . . . [W]e do not review the evi-
dence to determine whether a conclusion different from
the one reached could have been reached.’’ (Citations
omitted; internal quotation marks omitted.) Stewart v.
Stewart, 57 Conn. App. 335, 336–37, 748 A.2d 376, cert.
denied, 253 Conn. 918, 755 A.2d 216 (2000).
I
On appeal, the plaintiff claims that the court abused
its discretion by granting the defendant’s postjudgment
motions for contempt against him for failing to make
required support payments, as set forth in the Septem-
ber 7, 2016 support orders, while the plaintiff’s appeal
of the support orders was pending. We disagree.
It is well established in our case law that filing an
appeal from a family support order does not automati-
cally stay the order’s payment requirements. See Woly-
niec v. Wolyniec, 188 Conn. App. 53, 55 n.2, 203 A.3d
1269 (2019); see also Practice Book § 61-11.2 Therefore,
if a party in a family matter wishes the court to stay a
family support order during an appeal, that party must
file a motion to stay the order pursuant to § 61-11 (c).
Here, the support orders at issue were entered on
September 7, 2016, and the plaintiff filed his appeal
from the support orders on September 23, 2016. The
plaintiff never moved for a stay of the court’s support
orders and, as a result, his weekly support payments
were still due as scheduled. Accordingly, the court did
not abuse its discretion in granting the defendant’s post-
judgment motions for contempt against the plaintiff for
his failure to make timely support payments.
II
The plaintiff’s second claim is that the court abused
its discretion when it scheduled and adjudicated the
defendant’s postjudgment motions for contempt before
resolving the defendant’s motion for modification of
the visitation schedule. Specifically, the plaintiff claims
that because the court appeared to prioritize the resolu-
tion of the motions for contempt over the motion to
modify the visitation schedule, the court abused its
discretion. This claim is baseless.
It is well recognized that ‘‘[t]he trial court has a
responsibility to avoid unnecessary interruptions, to
maintain the orderly procedure of the court docket, and
to prevent any interference with the fair administration
of justice. . . . In addition, matters involving judicial
economy, docket management [and control of] court-
room proceedings . . . are particularly within the
province of a trial court.’’ (Internal quotation marks
omitted.) Yuille v. Parnoff, 189 Conn. App. 124, 128,
206 A.3d 766, cert. denied, 332 Conn. 902, 208 A.3d 659(2019). ‘‘The court inherently holds reasonable control
over its schedule.’’ Lane v. Lane, 84 Conn. App. 651,
654, 854 A.2d 815 (2004).
Here, the plaintiff claims that the court abused its
discretion when it held hearings to resolve the defen-
dant’s numerous contempt motions filed immediately
following the court’s November 18, 2016 corrected
memorandum of decision, but prior to the resolution
of the defendant’s motion for modification of visitation.
The guardian ad litem filed a motion for contempt
against the plaintiff on December 20, 2016. The defen-
dant’s postjudgment motions for contempt at issue were
filed on December 21, 2016, and March 9, 2017. The
defendant’s motion for modification, filed January 30,
2017, was first scheduled for a hearing on March 20,
2017, and was thereafter continued to May 8, 2017, and
then to November 27 through 29, 2017. On November
27, 2017, the defendant filed a motion for a continuance,
and the court reassigned the hearing on the motion for
modification to December 27 through 29, 2017.
In the meantime, the court scheduled a hearing on
May 11, 2017, to hear the postjudgment motions for
contempt filed against the plaintiff by the defendant
and the guardian ad litem. The hearing relevant to the
guardian ad litem’s motion for contempt concluded on
June 16, 2017, and the motion was granted on December
3, 2017. The hearing relevant to the defendant’s motions
for contempt at issue concluded on July 14, 2017, and
the motions were later granted on December 11, 2017,
April 16, 2018, and April 17, 2018.
As we have noted, the court has broad discretion to
manage its docket and resolve cases as it sees fit. See
Yuille v. Parnoff, supra, 189 Conn. App. 128. In this
instance, the court scheduled and concluded its hear-
ings on the motions for contempt prior to scheduling
a hearing on the motion for modification. However, the
record does not reveal, nor has the plaintiff pointed to,
any evidence establishing that the court’s decision to
manage the docket in this manner was unreasonable.
Indeed, given the number of motions filed by both par-
ties throughout this case, it is reasonable for the court
to dispose of motions in the manner it considers to be
most efficient. Therefore, although we acknowledge
that some of the motions for contempt chronologically
were filed after the motion for modification, the trial
court nevertheless had broad discretion to hear pending
motions in the order it deemed most appropriate in this
case. Accordingly, the court did not abuse its discretion.
III
The plaintiff’s third claim is that the court erred in
‘‘not considering [the plaintiff’s] financial affidavit[s]’’
in ruling on the defendant’s motions for contempt. Spe-
cifically, the plaintiff claims that, had the court consid-
ered properly his affidavits, it could not have reasonably
concluded that his nonpayment of the required support
payments was wilful because his finances were insuffi-
cient to afford his support obligations. We disagree.
‘‘It is well established that [i]n a case tried before a
court, the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific
testimony . . . and the trial court is privileged to adopt
whatever testimony [she] reasonably believes to be
credible. . . . On appeal, we do not retry the facts or
pass on the credibility of witnesses.’’ (Internal quotation
marks omitted.) Bay Hill Construction, Inc. v. Water-
bury, 75 Conn. App. 832, 837–38, 818 A.2d 83 (2003).
Despite the plaintiff’s urgings, there is no necessary
correlation between the plaintiff’s disagreement with
the court’s orders and the question of whether the court
considered the plaintiff’s affidavits in framing its orders.
Also, at various points the court stated that, while it
did review the evidence submitted on the plaintiff’s
behalf, it found the plaintiff’s affidavits and testimony
to not be credible. In the court’s October 6, 2016 memo-
randum of decision issued in response to a motion for
articulation filed by the plaintiff regarding the court’s
determination of the plaintiff’s minimum net annual
earning capacity, the court found that, at trial, ‘‘(1) the
[plaintiff’s] testimony regarding his current earnings,
living expenses, debts and liabilities, financial resources
and assets was neither forthcoming nor honest, and
(2) the information on the [plaintiff’s] sworn financial
affidavits regarding his income from employment and
expenses was not truthful.’’ Additionally, in ruling on
the defendant’s motions for contempt on December 11,
2017, the court affirmed its finding that the plaintiff
had the ability to pay his portion of ordered child care
expenses.3 The court stated: ‘‘The [p]laintiff’s testimony
and evidence regarding his personal and business
income, profit, business expenses, accounting, debts,
and liabilities are not credible. . . . There is no credi-
ble evidence before the [c]ourt regarding how the
[p]laintiff meets his monthly personal and business
expenses.’’
Because it is plain from the record that the evidence
the plaintiff presented was, indeed, considered by the
court, though not necessarily credited, and because the
judge had the sole discretion to assign weight to the
evidence, the court here was free to find the plaintiff’s
testimony and evidence not to be credible. Accordingly,
the court did not abuse its discretion in finding the
plaintiff to be in contempt for failing to make sup-
port payments.
IV
The plaintiff’s fourth claim is that the court erred in
awarding the defendant attorney’s fees in connection
with the granted contempt motions. Specifically, the
plaintiff asserts that the court’s May 15, 2018 ruling
regarding arrearages had the effect of vacating the con-
tempt orders underlying the arrearages assigned by the
court on April 16, 2018. The plaintiff therefore claims
that the court abused its discretion when it ordered
him to pay the legal fees incurred by the defendant in
connection with her postjudgment contempt motions
filed between October 31, 2016, and September 10, 2018.
We disagree.
The plaintiff’s contention that the court vacated its
contempt orders is simply incorrect. The court’s May
15, 2018 order provides: ‘‘In light of the Appellate Court
decision . . . the court hereby vacates any findings
of arrearages of child support, childcare expenses, and
unreimbursed medical expenses with respect to defen-
dant’s postjudgment motions for contempt # 258.01, #
258.02, # 263, and # 266.’’ (Emphasis added.) The vaca-
tion of the arrearage amount in this instance does not
trigger a retroactive vacation of the underlying con-
tempt orders or the related sanctions. Therefore, while
the arrearage amounts owed by the plaintiff were
vacated pursuant to the order, the contempt orders
themselves remained intact, along with the attorney’s
fee sanctions subsequently imposed on October 15,
2018. Accordingly, the court did not abuse its discretion.
V
The plaintiff’s fifth and final claim on appeal is that
the court ‘‘erred in accepting affidavits of fees with
incorrect docket number[s].’’ We disagree.
General Statutes § 52-123 provides: ‘‘No writ, plead-
ing, judgment or any kind of proceeding in court or
course of justice shall be abated, suspended, set aside
or reversed for any kind of circumstantial errors, mis-
takes or defects, if the person and the cause may be
rightly understood and intended by the court.’’
‘‘Furthermore, our Supreme Court has held that the
use of an incorrect docket number is a circumstantial
defect. In Plasil v. Tableman, 223 Conn. 68, 612 A.2d
763 (1992), our Supreme Court reviewed whether a trial
court had subject matter jurisdiction to grant prejudg-
ment remedies in a case in which an incorrect docket
number that referred to a previously dismissed case
was used. The court held that [t]he failure to collect
an entry fee for the re-served complaint or to assign
it a new docket number did not deprive the court of
jurisdiction or presumptively prejudice the defendants.
To strip the plaintiff of her prejudgment remedies would
neither facilitate the business of the court nor advance
justice, but rather would serve merely to exalt technical-
ities above substance.’’ (Internal quotation marks omit-
ted.) State v. Gillespie, 92 Conn. App. 143, 152–53, 884
A.2d 419 (2005).
Here, the plaintiff argues that because the defendant
misfiled three affidavits of fees under incorrect docket
numbers, the court ‘‘abused its power’’ in accepting
those affidavits in connection with the present case. It
is clear that a scrivener’s error such as an incorrect
docket number will not deprive the court of jurisdiction,
as it constitutes merely a circumstantial defect. See
General Statutes § 52-123. Therefore, the court did not
abuse its discretion by accepting the financial affidavits
submitted by the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The order provides as follows: ‘‘In light of the Appellate Court decision
. . . the court hereby vacates any findings of arrearages of child support,
childcare expenses, and unreimbursed medical expenses with respect to
defendant’s postjudgment motions for contempt # 258.01, # 258.02, # 263,
and # 266.’’
2
Practice Book § 61-11 (c) provides in relevant part: ‘‘Unless otherwise
ordered, no automatic stay shall apply to . . . orders of periodic alimony,
support, custody or visitation in family matters brought pursuant to chapter
25 . . . . The automatic orders set forth in Section 25-5 (b) (1), (2), (3),
(5) and (7) shall remain in effect during any appeal period and, if an appeal
is filed, until the final determination of the cause unless terminated, modified
or amended further by order of a judicial authority upon motion of either
party.’’
3
The court supported this determination by explaining that the evidence
established that ‘‘[t]he [p]laintiff’s business . . . of which he is 100 [percent]
owner, president, and only employee, loaned him $242,789 according to his
April 28, 2017 financial affidavit ([p]laintiff’s exhibit 4). Further, the [p]laintiff
has paid for discretionary, noncourt-ordered debts and liabilities in full since
September, 2016.’’