Ciottone v. Ciottone ( 2015 )

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ANGELA D. CIOTTONE v. JONATHAN CIOTTONE
(AC 36530)
Lavine, Sheldon and Bishop, Js.
Argued October 15, 2014—officially released January 20, 2015
(Appeal from Superior Court, judicial district of
Hartford, Prestley, J. [motion to modify]; Bozzuto, J.
[motion for contempt])
Angela D. Ciottone, self-represented, the appellant
(plaintiff).
Keith Yagaloff, for the appellee (defendant).
Opinion
BISHOP, J. In this appeal from the trial court’s judg-
ment of contempt and its attendant order of counsel
fees, the plaintiff, Angela D. Ciottone, claims that,
because the terms of her marital dissolution judgment
and pertinent postjudgment orders were not clear and
unambiguous, the court’s finding of contempt and its
allied remedial orders were not legally warranted. We
affirm the judgment of the trial court.
The plaintiff’s marriage to the defendant, Jonathan
Ciottone, was dissolved on January 19, 2007, on terms
based on the parties’ written agreement. Relevant to
our present consideration, the parties’ agreement
included a multipage parenting plan regarding their son,
Jonathan, Jr., then nearly three years old. The parties
returned to court in 2011, both seeking modifications
of the dissolution judgment. Following a hearing, the
court, Prestley, J., issued extensive written orders,
dated May 25, 2012, which provided specific contours
to the parties’ continuing shared custody of Jonathan,
Jr. The court’s orders included, inter alia, the following
provision: ‘‘The mother shall schedule nonemergency
medical appointments for the child. She shall provide
adequate and immediate notice to the father with
enough time to allow for him, at his option, to attend.
The mother shall inquire in writing as to the father’s
availability for appointments in advance of any schedul-
ing or rescheduling. Emergency appointments may be
scheduled by either parent subject to immediate notifi-
cation to the other.’’ Elsewhere, the court’s order fur-
ther included a provision regarding summer vacation
and camp for Jonathan, Jr., that modified the existing
order for each parent to have two nonconsecutive
weeks of vacation with Jonathan, Jr. The order stated:
‘‘Absent mutual written agreement as to the child’s
attendance at summer camp, the mother may first select
a summer camp for the child. The father may then select
a second camp. . . . Absent mutual written agreement,
the child shall not attend more than two (2) camps in
the summer, and neither camp shall exceed three (3)
weeks. Beginning in 2013, the summer vacation sched-
ule shall be exchanged by March 1; the summer camp
selections shall be exchanged by May 1.’’
On August 1, 2012, by agreement of the parties,1 the
court, Carbonneau, J., issued the following written
order: ‘‘The mother and father shall alternate attending
nonemergency medical and dental appointments for
Jonathan, Jr., per the scheduling requirements in . . .
the 5/25/12 orders. If the child becomes sick in the care
of either parent, that parent shall be responsible for
obtaining appropriate treatment or making appoint-
ments. Absent an emergency, both parents shall not
attend medical or dental appointments together.’’ Addi-
tional written orders were issued by Judge Prestley on
November 16, 2012, pursuant to motions filed by the
plaintiff. There, the court denied the plaintiff’s motion
to modify child support and made detailed orders
regarding reimbursements for Jonathan, Jr.’s extracur-
ricular and health care expenses. As to the latter, the
court ordered: ‘‘Although the original judgment pro-
vided that the plaintiff would provide health insurance
for the child, the defendant’s wife’s policy currently
provides health insurance for the child’s benefit. The
defendant shall not be responsible for any portion of the
extraordinary cost of the plaintiff’s health [insurance]
premium. The defendant may continue to pay unreim-
bursed expenses out of his wife’s flexible spending
account without any credit for this due to the plaintiff.’’
Additionally, the court ordered: ‘‘Insurance information
on all insurance maintained that covers the child’s
health care expenses shall be given to the child’s provid-
ers. It is presumed that the health care providers will
submit claims first to the primary carrier and then to
the secondary carrier. The parties shall then divide
unreimbursed medical expenses or co-pays equally.’’2
Following the court’s November 16, 2012 order, the
plaintiff, by motion dated December 4, 2012, sought:
‘‘Clarification, Reconsideration, and Reargument.’’
Through this motion, the plaintiff sought a further order
as to whether ‘‘a child medical expense covered under
the mother’s health care plan with the exception of a
co-pay can then also be claimed to be an unreimbursed
medical expense under father’s plan.’’ After a hearing,
this motion was denied by the court by order dated
April 25, 2013.3
Thereafter, the defendant filed a motion for contempt
dated April 26, 2013, and the plaintiff filed a motion for
contempt dated May 21, 2013, a motion for compensa-
tion dated October 2, 2013, a motion for attorney’s and
expert’s fees dated October 20, 2013, and a motion to
modify child support dated November 4, 2013. It is the
court’s response to the defendant’s motion for contempt
that is the subject of this appeal.4
In his motion for contempt, the defendant made the
following claims: (1) that the plaintiff had failed to reim-
burse him for certain expenses incurred on behalf of
Jonathan, Jr., including expenses for his activities as
well as for certain health care expenses, in accordance
with the provisions of the dissolution judgment and
subsequent orders; (2) that the plaintiff had failed to
utilize the defendant’s employment-related health insur-
ance as secondary insurance coverage for Jonathan,
Jr.; (3) that the plaintiff had violated the court’s orders
regarding the obligation of each parent to notify the
other of his and her preferred dates of summer vacation
with Jonathan, Jr., and the intended dates for his camp;
(4) that the plaintiff had failed to adhere to the court’s
order that the parties alternate taking Jonathan, Jr., to
his medical appointments; (5) that the plaintiff had
failed to keep to the parenting schedule; and (6) that the
plaintiff, by her conduct, had undermined his parental
rights and failed to adhere to the judgment’s co-parent-
ing provisions.
Over the course of several days, the court, Bozzuto,
J., heard testimony regarding the parties’ respective
motions. The court orally rendered its decision from
the bench on January 27, 2014. Judge Bozzuto began
by making the following observation: ‘‘The issues sub-
ject of the defendant’s motion for contempt have been
addressed and adjudicated by the court extensively on
prior dates, to no avail. Preliminarily, the court would
note that it found the plaintiff’s testimony and presenta-
tion to the court riddled with distortions and exaggera-
tions.’’ Judge Bozzuto continued: ‘‘It’s the mundane that
the plaintiff distorts and manipulates into something it
is not. The plaintiff also manipulates the plain language
[of] orders in an effort to exert control and/or diminish
the defendant.’’ The court concluded: ‘‘As to defendant’s
motion [for contempt], the court finds that the defen-
dant has met his burden of proof, and the court finds
the plaintiff in wilful violation of the court’s orders.’’
As to the defendant’s specific contempt allegations,
the court made the following findings and orders: ‘‘[T]he
plaintiff has failed, without excuse, to comply with the
court’s order to pay to the defendant $951.50 and also
failed to reimburse the defendant for winter basketball,
a medical bill . . . an orthodontic retainer, and another
bill for medical services. All totaled, the court finds
the plaintiff owes the defendant $296.98, which is in
addition to the $951.50. Further, the plaintiff misused
and manipulated the summer camp and vacation sched-
ule. Additionally, the plaintiff, through her tortured
reading, has clearly violated the court’s order to alter-
nate all nonemergency medical appointments of the
minor child. Also, the plaintiff has failed to submit any
remaining unreimbursed medical expenses through the
defendant’s insurance as secondary insurance for the
minor child.’’
In addition to making a finding of the plaintiff’s wilful
violation of its orders, the court entered the following
remedial orders: ‘‘One, the sum of $296.91 plus $951.50
shall be paid by the plaintiff to the defendant by way
of the defendant being relieved of his $300 quarterly
payment to the plaintiff for the next four full payments.
Additionally, the fifth quarterly payment shall be
reduced by $48.48.5
‘‘Two, the plaintiff shall, within fourteen days, notify
in writing, with a certified copy to defendant’s counsel,
all of the child’s medical providers that her insurance,
with all appropriate information, is the primary insur-
ance for the child and that the defendant’s insurance,
with all appropriate information, is the secondary insur-
ance for the minor child, to be processed in accordance
therewith. The plaintiff shall take whatever additional
steps are necessary to effectuate the intent of the court’s
order dated November 16, 2012. To be clear, all of the
child’s medical and dental expenses are to be submitted
to the plaintiff’s insurance first, then to the defendant’s
insurance second. Any amount left over shall be split
between the parties 50-50.
‘‘Three, as for summer camp and vacation, the court
orders that the defendant provide the plaintiff with his
choice of summer vacation by March 1, 2014. There-
after, and not before, the plaintiff shall make her sum-
mer vacation selection by no later than April 30,
2014. . . .
‘‘The defendant shall have first choice for summer
vacation and summer camp for 2014 and 2015 in accor-
dance with the process set forth above. The plaintiff
shall have first choice for summer vacation and summer
camp for 2016, in accordance with the process set forth
above. The parties shall alternate thereafter in accor-
dance with the same schedule.
‘‘Four, as instruction to both parties, the court reiter-
ates the court’s order of August 1, 2012, regarding alter-
nating all nonemergency [medical] appointments. An
emergency [medical] appointment, which is the only
appointment not subject to the alternation, is an
appointment that is scheduled for the minor child no
more than three hours in advance. All other medical
and dental appointments shall be alternated consistent
with the court’s existing order.
‘‘Five, the court further orders the plaintiff to pay
attorney’s fees in the amount of $1500 to Attorney Yaga-
loff, such sum to be paid as follows: $750 within 60
days, and the remaining $750 to be paid within 90 days of
today’s date.’’ (Footnote added.) This appeal followed.
On appeal, the plaintiff claims, generally, that Judge
Prestley’s orders that formed the foundation of the
defendant’s motion for contempt were ambiguous and
unclear and, therefore, not amenable to enforcement
through the mechanism of the court’s contempt power.
She claims, as well, that the evidence presented to Judge
Bozzuto was insufficient to conclude that she wilfully
violated the court’s orders regarding unreimbursed
health care expenses, submission of claims to the defen-
dant’s health insurance, the vacation and camp sched-
ule, and nonemergency medical appointments.
With respect to her obligation to pay certain unreim-
bursed health care expenses, the plaintiff claims that
the term ‘‘unreimbursed health care expenses’’ is
unclear and imprecise. Additionally, she claims that the
trial court failed, improperly, to clarify whether she was
entitled to deduct overpayments made by the defen-
dant’s insurance carrier for which she believes she is
entitled to credit. Further, the plaintiff claims that the
order that the defendant’s health insurance serve as
secondary coverage is ambiguous, and, moreover, that
she did not wilfully violate that order. As to issues
relating to Jonathan, Jr.’s attendance at summer camp
and the parties’ respective summer vacation schedules
with Jonathan, Jr., the plaintiff appears to claim that the
court issued its remedial orders on this topic without
affording her due process. She fails, however, to brief
the manner in which she believes her due process rights
were violated. As to alternating nonemergency visits to
medical care providers, the plaintiff claims that the
evidence adduced at the hearing on this topic was insuf-
ficient to warrant the court’s contempt finding. In large
measure, the plaintiff’s brief consists of a rehashing of
issues presented to the court during extensive eviden-
tiary hearings that culminated in the subject contempt
findings and associated orders.6
Our Supreme Court, in the case of In re Leah S., 284
Conn. 685, 935 A.2d 1021 (2007), set forth the parame-
ters of our review of a trial court’s finding of contempt
in a civil matter. The court stated: ‘‘[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 constituted 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 suffi-
ciently clear and unambiguous, we must then determine
whether the trial court abused its discretion in issuing,
or refusing to issue, a judgment of contempt, 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.)
Id., 693–94.
As to the first prong of our analysis, the record makes
it apparent that the orders that underlie the defendant’s
motion for contempt were clear and unambiguous. Sec-
ond, the record amply supports the court’s finding that
the plaintiff’s failure to abide by the court’s orders
was wilful.
The first part of the defendant’s motion for contempt
deals with the plaintiff’s failure to pay her share of
unreimbursed health care expenses incurred on behalf
of Jonathan, Jr. Our review of relevant transcripts
reveals that the claim of ambiguity advanced by the
plaintiff on review was previously raised by her and
was fully, and repeatedly, resolved by the court at hear-
ings in January, April and November of 2013. For exam-
ple, the court made plain at a hearing on January 28,
2013, that unreimbursed health care expenses for Jona-
than, Jr., means those expenses not paid for by the
parties’ available insurance and that the defendant was
entitled to utilize funds in his present wife’s flexible
spending account to pay his portion of unreimbursed
health care expenses.7 As to the definition of the unreim-
bursed health care expenses, as previously noted
herein, Judge Prestley made that term amply clear to
the parties on January 28, 2013. See footnote 2 of this
opinion. For a reasonably educated and attentive liti-
gant, the court’s explanation on the record should have
been sufficient to make the order regarding unreim-
bursed health care expenses clear and unambiguous.8
The plaintiff claims that she did not wilfully violate
this order because she believed she was entitled to
certain ‘‘set offs.’’ In regard to the specific amounts the
court found owing by the plaintiff, the sums of $951.50
and $296.91, the plaintiff’s obligation to pay the sum of
$951.50 was based on a previous computation by the
court. At a hearing on April 29, 2013, Judge Prestley
had made an initial finding that the plaintiff owed the
sum of $985.50 to the defendant based on her obligation
to share unreimbursed health care expenses for Jona-
than, Jr., and the court ordered that it be paid at the
rate of $100 a month. Later, in the same hearing, Judge
Prestley reduced the figure to $951.50, giving the plain-
tiff a credit of $34 toward this obligation as a result of
a net sum owed to the plaintiff by the defendant.9 Thus,
the sum of $951.50 was fixed and definite. Indeed, on
a subsequent hearing date on the defendant’s motion
for contempt, the plaintiff acknowledged this obliga-
tion. She explained that she did not pay this amount
because she felt entitled to set off against it certain
sums she later claimed to have become due to her from
the defendant. In determining that the plaintiff’s failure
to pay the sum of $951.50 was wilful, the court needed
to look no further than the transcripts of prior hearings
in which the plaintiff had acknowledged her awareness
of Judge Prestley’s computation, the order that she pay
it, and her failure to do so based on her claim of justifi-
cation.
Judge Bozzuto’s finding that the plaintiff wilfully
withheld the additional sum of $296.91 finds support
in the record as well. At the continued hearing on the
contempt motion on January 9, 2014, the defendant
testified that the plaintiff owed him an additional
$376.50, beyond the sum of $951.50, based on his calcu-
lation of the amounts that the plaintiff should have paid
to him for her share of Jonathan, Jr.’s unreimbursed
health care and activity expenses. After testimony and
argument, the court found that the sum of $296.91 was
due on the basis of its previous orders. There is ample
evidentiary support for the court’s determination in
this regard.
We now turn to the plaintiff’s obligation to utilize
her health care insurance as the primary coverage for
Jonathan, Jr.’s health related needs and the defendant’s
health insurance as secondary coverage. The record
reflects that, in spite of the clarity of the order, the
plaintiff continued to object to it and failed repeatedly
to comply with its dictates. At the November 19, 2013
hearing on the defendant’s motion for contempt, he
testified that health care providers’ bills were not being
submitted to his insurance carrier for secondary cover-
age because the plaintiff had informed the providers
not to use the secondary coverage. Judge Bozzuto, of
course, was entitled to credit this testimony and to find,
on the basis of the testimony, that the plaintiff had
violated the court’s order in this regard. This order
suffers from no ambiguity. The court’s finding that the
plaintiff wilfully violated it is supported by the record.
Next, with respect to the court’s orders regarding the
obligation of the parties to notify each other of their
intended summer vacation dates by March 1, 2013, and
of their desired weeks for enrolling Jonathan, Jr., in
summer camp by May 1, 2013, the court heard evidence
that, instead of complying with this order, the plaintiff
notified the defendant in January, 2013, of the dates of
both her intended vacation as well as the summer camp
dates before he had the opportunity to indicate his
preferred vacation dates.10 The defendant testified that
he protested to the plaintiff that, although she had the
first choice for vacation dates in 2013, the order
required her to permit him then to choose his vacation
time before dates were selected for Jonathan, Jr.’s
camp. The defendant testified that, when the plaintiff
responded ‘‘not in a nice way,’’ he decided to work
around the plaintiff’s dates, accommodating his vaca-
tion dates and his selection of Jonathan, Jr.’s camp dates
to the plaintiff’s declared schedule, and he notified the
plaintiff of the dates he had selected. The defendant
testified that, thereafter, the plaintiff unilaterally
changed her vacation schedule, and that change
encroached on the defendant’s summer schedule. The
court found that the plaintiff wilfully violated the rele-
vant order regarding summer vacation and camp.
The plaintiff claims that the order was subject to
reasonable interpretation. She argues that the require-
ment that the parties notify each other by March 1st of
their vacation schedules, with her having first choice
in 2013, and by May 1st of their summer camp selections
for Jonathan, Jr., means that those are the latest dates
by which to make these elections. She argues that the
order, by its terms, does not preclude her from notifying
the defendant of her selected dates, all at once, months
ahead of time. Additionally, she claimed before the trial
court that the late change in her summer plans for
herself and for Jonathan, Jr.’s camp was justified by
the late dismissal of students due to having to make
up snow days.
Contrary to the plaintiff’s claim, this order suffers
from no ambiguity. On review, we find no fault with
the court’s assessment of this claim as a mere distortion
of a plain order. Similarly, the court’s determination
that she wilfully violated this order finds ample support
in the record. The plaintiff’s patent disregard of this
order well warranted the court’s finding of contempt.
Although not set forth as a distinct claim, the plaintiff
also appears to claim that the court’s remedial orders
upon finding her in contempt, in some undefined fash-
ion, deprived her of due process. In this claim, she is
wide of the mark. Faced with a party in contempt of
court, it is within the court’s province to fashion appro-
priate remedial orders. ‘‘Courts have in general the
power to fashion a remedy appropriate to the vindica-
tion of a prior . . . judgment. . . . Having found non-
compliance, the court, in the exercise of its equitable
powers, necessarily ha[s] the authority to fashion what-
ever orders [are] required to protect the integrity of [its
original] judgment.’’ (Internal quotation marks omit-
ted.) Behrns v. Behrns, 124 Conn. App. 794, 821, 6 A.3d
184 (2010). In the case at hand, the court’s remedial
orders were justified and appropriately tailored to
the violations.
In enunciating its orders, the court also found that
the plaintiff attempted to distort the requirement that
the parties alternate taking Jonathan, Jr., to nonemer-
gency medical appointments and, as a result, the plain-
tiff was in contempt of those orders. During the hearing
on his motion for contempt, the defendant provided
the court with an evidentiary basis for its finding that
the plaintiff failed, wilfully, to alternate taking Jonathan,
Jr., to his scheduled medical appointments. The follow-
ing exemplifies how the plaintiff distorts the court’s
order. The plaintiff argued at trial, and persists in claim-
ing on appeal, that because the parent then with physi-
cal custody of Jonathan, Jr., has the right to take him
for medical care should he be sick, that provision per-
mits her, unilaterally, and without notifying the defen-
dant, to take Jonathan, Jr., to medical care visits to
treat certain chronic conditions. The court’s response
to this claim was apt. The court acted within its discre-
tion in finding that the plaintiff had distorted the com-
mon sense meaning of this obligation in order to create
a nonexisting ambiguity.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Neither party filed a motion to modify the May 25, 2012 orders. The
guardian ad litem, however, requested a status conference, noting: ‘‘Despite
the [May 25, 2012] orders being clear and concise, conflict between the
parties continues; although, the level and source of conflict, depending on
which party you speak with, is different.’’
2
Although, historically, the parents’ relative obligations to maintain health
insurance coverage for Jonathan, Jr., changed due to the parties’ changed
circumstances, at all times relevant to any of the issues presently on appeal,
the court’s order has been that the plaintiff’s employment-related health
care insurance would provide primary coverage for Jonathan, Jr., and the
defendant’s employment-related health care insurance would provide sec-
ondary coverage.
3
A review of the extensive trial court file reveals that, in response to the
plaintiff’s motion for clarification, the court held a hearing on January 28,
2013, during which Judge Prestley made her order regarding health care
insurance amply clear. There, in response to a claim that the court’s order
was ambiguous as to the meaning of unreimbursed health care expenses,
the court stated: ‘‘I believe my order said that there was a primary insurer,
there was a secondary insurer. The primary would file the claims, get that
paid. Secondary would kick in. Whatever’s remaining after that would be
called an unreimbursed expense.’’ Subsequently, the plaintiff renewed her
motion for clarification, which the court denied on April 25, 2014.
4
The record reflects that when the court, Bozzuto, J., granted the defen-
dant’s motion for contempt on January 27, 2014, the court denied all of the
plaintiff’s motions. The court’s response to the plaintiff’s motions is not a
subject of this appeal.
5
After an earlier postjudgment hearing, and in order to resolve a dispute
between the parties regarding their respective obligations to pay for Jona-
than, Jr.’s extracurricular activities, the court, Prestley, J., had ordered the
defendant to pay $300 quarterly to the plaintiff.
6
As to the court’s award of counsel fees, the plaintiff makes no argument
that the amount ordered was improper; rather, her claim appears to be
limited to an argument that because the court erroneously found her in
contempt, there should not have been any ensuing order for counsel fees.
To be sure, the court received an affidavit from the defendant’s counsel
setting forth his hourly rate of $250 and the time encompassed in his repre-
sentation of the defendant on his contempt motion. The court found the
hourly rate to be reasonable and took judicial notice of the amount of time
spent in the hearings leading up to the court’s findings and orders. Because
we affirm the court’s contempt order there is no basis to disturb the award
of counsel fees.
7
For all time periods relevant to any of the issues on appeal, the existent
court order has been that the plaintiff’s health insurance would provide
primary coverage for Jonathan, Jr., and the defendant’s insurance would be
secondary. In addition to his employment related health insurance, the
defendant has the benefit of a flexible spending account in his present wife’s
name. This account is funded by pretax distributions of the present wife’s
earnings. The court repeatedly explained to the plaintiff that the defendant’s
use of this fund to meet his obligation toward payment of unreimbursed
health care expenses was entirely appropriate.
8
The record reflects that both parties are attorneys.
9
In her brief, the plaintiff points out that the court’s finding of $951.50
was made on April 29, 2013, after the defendant had filed his motion for
contempt. In our view, however, the determination by the court on April
29, 2013, was simply a computation of amounts due from the plaintiff to
the defendant on the basis of the existing court order for unreimbursed
health care expenses and activities reimbursement. That the amount then
presently due was crystallized after the defendant had filed his motion for
contempt is of no avail to the plaintiff because, even if the court relied on
the prior finding of $951.50 due, the court’s contempt finding was based on
the plaintiff’s failure to comply with the court’s prior orders that she pay
one half of the unreimbursed health care expenses incurred for Jonathan,
Jr., and her proportionate share of expenses for his activities.
10
The record indicates that the parties agreed, through their marital disso-
lution agreement, that each would have two nonconsecutive weeks of vaca-
tion with Jonathan, Jr., in the summer time until he turned eight years old.
The record also indicates that on May 25, 2012, the court issued extensive
written orders that included the following order regarding summer vacations
and camp: ‘‘Summer camp shall not be considered an extracurricular activity.
Absent mutual written agreement as to the child’s attendance at summer
camp, the mother may first select a summer camp for the child. The father
may then select a second camp. No camp shall be more than twenty-five
(25) miles from the other parent’s residence unless mutually agreed upon
in advance and in writing. Either party may elect that the child not go to
any camp during their selection period. Absent mutual written agreement,
the child shall not attend more than two (2) camps in the summer and
neither camp shall exceed three (3) weeks. Beginning in 2013, the summer
vacation schedule shall be exchanged by March 1; the summer camp selec-
tions shall be exchanged by May 1.’’