DocketNumber: AC 22187
Citation Numbers: 77 Conn. App. 582, 823 A.2d 1274, 2003 Conn. App. LEXIS 277
Judges: Dranginis
Filed Date: 6/24/2003
Status: Precedential
Modified Date: 10/19/2024
Opinion
This matter has been the subject of extensive, unnecessary litigation in which a minor child has been the pawn in a parental conflict in the court system. The plaintiff mother, Gina M. G., appeals from the postjudgment orders of the trial court concerning
The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. The plaintiff and the defendant have one daughter, bom in 1996 in California. The parties’ three year extramarital relationship ended soon after the birth of their daughter.
Beginning in 1999 and continuing to the present time, the parties have inundated our legal system with multi
The plaintiff subsequently alleged that the defendant had sexually abused their child. The child’s pediatrician, the Yale-New Haven Sexual Abuse Clinic, the department of children and families, a forensic pathologist, a licensed clinical investigator, and a counselor and the court listened to and examined the child, as well as viewed a video and audiotape of the child with the defendant, and all ultimately concluded that the defendant had not sexually abused the child.
In January, 2001, the plaintiff denied the defendant visitation with their child due to the child’s illness, even though he had arrived from California. The plaintiff again denied the defendant access in February, this time claiming that she thought that the guardian ad litem had to supervise the visits even though the other authorized facilitator, Skane Services, was present. The court held that the plaintiff knew, or should have known, that the order required either a facilitator or the guardian ad litem to be present.
On April 20, 2001, the plaintiff left a note on the front door of her home for the defendant, who again had flown from California, ordering the guardian ad litem and the defendant off the premises and stating that visitation would cease until a pending motion to remove the guardian ad litem was heard. The plaintiff was aware, however, that a party could disregard an order of the court only if the order had been modified or vacated. The order had not been modified or vacated prior to the April, 2001 visit.
This current segment of the never ending saga concerns the plaintiffs appeal from the July 12, 2001 order of the court, Sheedy, J., which provided, among other things, that commencing in July, 2001, the defendant would have unsupervised visitation with the child. The court found that the child was loving and affectionate with the defendant during his visits, and that unsuper
Additionally, the plaintiff was found in contempt of the July 14, 2000 court order for refusing to permit the defendant to visit with the child on April 20, 2001. The court order had been clear and unambiguous, and the court found that the plaintiff wilfully violated the order. The plaintiff was fined $1000 for the preparation and argument of the contempt motion, which was to be paid to the defendant’s attorney. Pursuant to General Statutes § 52-256b (a), the court, furthermore, awarded the defendant reasonable attorney’s fees of $11,010 to be paid, as well, to the defendant’s attorney. Additional facts will be provided as necessary.
I
The plaintiff claims that the court’s order allowing the defendant to have unsupervised overnight visitation with the child was improper. The plaintiff asserts that the evidence did not support that modification to the original visitation order. The plaintiff argues that the court failed to weigh the evidence properly concerning the credibility of the child and the criminal charges against the defendant. We disagree.
The authority of a court to render custody, visitation and relocation orders is set forth in General Statutes § 46b-56.
“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion ... we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 775, 804 A.2d 889 (2002); Prial v. Prial, 67 Conn. App. 7, 9-10, 787 A.2d 50 (2001).
“An appellant who seeks to reverse the trial court’s exercise of judicial discretion assumes a heavy burden. . . . Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case. . . . Trial courts have a distinct advantage over an appellate court in dealing with domestic rela
The following additional facts are relevant to the plaintiffs claim. The defendant filed a motion, dated April 6, 2001, to terminate supervised visitation and begin unsupervised visitation with his child. On July 12, 2001, the court entered an order permitting the defendant to have unsupervised and overnight visitation with the child. The court previously had afforded a full evidentiary hearing on the motion, heard conflicting evidence from the parties and their witnesses regarding prior visits, and considered criminal allegations made against the defendant and the child’s interaction with him. The court reviewed the credibility of the plaintiff, the defendant, and the experts and witnesses concerning the child’s statements and conduct by both parties.
On the basis of our review of the record, files and transcripts, we conclude that there was ample evidence demonstrating that the court properly applied the best interest of the child standard to its ruling on the motion to modify the visitation order. The court’s findings were not clearly erroneous and, thus, the court did not abuse its discretion. See generally McGinty v. McGinty, supra, 66 Conn. App. 41. Accordingly, we reject the plaintiffs first claim.
II
The plaintiff next claims that the court improperly concluded that she wilfully violated the order of the court providing the defendant access to their child and that the court improperly imposed fines and awarded unreasonable attorney’s fees for her contempt. We are not persuaded.
A
The plaintiff asserts that her actions on April 20,2001, were not wilful. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [plaintiff] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Citation omitted; internal quotation marks omitted.) Prial v. Prial, supra, 67 Conn. App. 14.
The plaintiff argues that the court improperly found that her conduct was wilful when she denied the defendant access to their child on April 20, 2001. In support of the plaintiffs claim that her actions were not wilful, she refers to her testimony before the court in May, 2001, in which she stated that she believed the filing of the motion to remove the guardian ad litem stayed the defendant’s visitation until the issue was resolved. The plaintiff also testified that even if she understood that she had to follow the court’s order while waiting for the motion to be heard, she did not have any other choice but to deny the visitation because the guardian ad litem was biased and did not perform her job effectively. The plaintiff did not trust the defendant to be with the child, considering his past and pending criminal charges, especially if the guardian ad litem was not performing her duties sufficiently. The plaintiff alleged
“[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.” Wilson v. Wilson, supra, 38 Conn. App. 275-76. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot refry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Id., 273.
We conclude that the findings of the court were not clearly erroneous. The court’s order of July 14, 2000, was clear and unambiguous, and stated that the defendant was to receive visitation rights. The modifications made subsequently were also plain and unequivocal. Nowhere in the order did it state that access to the child could be suspended while motions were pending in the court concerning the same. The plaintiff was not a newcomer to the family litigation process.
“It is axiomatic that a person may not pick and choose which court orders he will obey. ... A party’s opinion concerning the necessity for a particular order does not excuse his disobedience.” (Citation omitted.) Meehan v. Meehan, 40 Conn. App. 107, 110, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996). “There is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid . . . [or] should not be obeyed. A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.” (Internal quotation marks omitted.) Wilson v. Wilson, supra, 38 Conn. App. 275 n.8.
In its order of July 12, 2001, the court concluded that the plaintiff could not possibly have believed that she
It is necessary for the court, not the plaintiff, to interpret the court’s order and to determine when the defendant is allowed access.
B
The plaintiff next asserts that the court improperly fined her for contempt and awarded the defendant’s attorney both the fine and his legal fees. The plaintiff claims that the fees were unreasonable because they encompassed not only the hearing and the motion for contempt, but work performed on other motions. “Sanctions for civil contempt may be either a fine or imprisonment; a fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. . . . The fine imposed for a civil contempt may be payable to the complainant as compensation for [the party’s] loss.” (Internal quotation marks omitted.) In re Brianna B., supra, 66 Conn. App. 707; Lord v. Mansfield, 50 Conn. App. 21, 34, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). “Because a compensatory fine may be imposed as part of a civil contempt, our sole remaining inquiry is whether the trial court abused its discretion.” Lord v. Mansfield, supra, 34. After reviewing the record and transcripts, we conclude that the court did not abuse its discretion by fining the plaintiff as a civil punishment for her contempt of the court’s order.
As for the award of attorney’s fees for the defendant, “[o]rdinarily, courts in this country do not award attorney’s fees to the prevailing party unless . . . the payment of such fees is provided for by statute. . . . The authority of the trial court to award attorney’s fees following a contempt proceeding is well settled. Once a contempt has been found, [§ 52-256b (a)]
The plaintiff contends that even if attorney’s fees should have been awarded, the court improperly deprived her of a hearing on the matter. We have, previously, “upheld an award of attorney’s fees despite the fact that the trial court did not hold an evidentiary hearing on the subject. In upholding the award of attorney’s fees over [a party’s] argument that such an award was improper in the absence of a hearing, we relied on our Supreme Court’s statement that courts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” (Internal quotation marks omitted.) Id., 747-48. In this action, the court had been familiar with counsel’s preparation and presentation of the case. Both parties were made aware that the court would be considering attorney’s fees at the end of the trial. The plaintiff did not submit any evidence concerning the attorney’s fees, nor did she object to the defendant’s presentation of evidence regarding the same. Accordingly, the court did not need to hold an evidentiary hearing on the subject of attor
The plaintiff, finally, assumes that the reasonableness of the attorney’s fees is determined solely with reference to the amount of time the attorney actually spent working on the contempt motion. The plaintiff claims that the attorney’s fees improperly included the preparation and argument of various other motions heard on July 12, 2001, and, thus, were not limited to the motion for contempt. The determination of reasonableness, however, takes into consideration a range of factors, of which time and labor expended are one consideration. See id.; Tufano v. Tufano, 18 Conn. App. 119, 125, 556 A.2d 1036 (1989).
It was within the discretion of the court to determine whether the effort expended was reasonable under the circumstances and to rely on its familiarity and expertise with the complex legal issues involved to determine the reasonableness of the attorney’s fees. In this case, the attorney’s fees represented the time and expense the defendant incurred for the preparation of the numerous postjudgment motions and proceedings, including but not limited to the contempt motion, in an effort to enforce the July 14, 2000 postjudgment order and modifications thereto. Although the attorney’s fees included the preparation of motions other than the contempt motion, all of the motions and their preparation stem from the plaintiffs refusal to allow the defendant access to the child, which inevitably led to her contempt. Due to the number of contempt motions filed by the defendant in an effort to require the plaintiff to comply with the court’s order of access to the child, the length of the trial and the violations found by the court, we cannot maintain that the award of attorney’s fees was an abuse of discretion. See, e.g., Tufano v. Tufano, supra, 18 Conn. App. 121-26; see also Friedlander v. Friedlander,
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs first and third claims have been distilled into the first claim discussed in this opinion in light of the fact that both the plaintiffs claims concern evidentiary findings.
The plaintiff was not married at the time of the affair and has not married. The defendant was married at the time of the affair and remains married.
The criminal charges against the defendant are still pending.
The August 16, 2000 order for supervised visitation was ordered, on October 20, 2000, to remain in full force and effect until further order of the court.
Attorney Barbara Binford and Skane Services were the two authorized facilitators agreed on by the parties and the court to accompany the defendant on his supervised visits.
General Statutes § 46b-56 provides in relevant part: “(a) In any controversy before the Superior Court as to the custody or care of minor children ... the court may at any time make or modify any proper order regarding the education and support, of the children and of care, custody and visitation ....
“(b) In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference . . . .”
By denying the defendant access, the plaintiff improperly acted as a gatekeeper to the defendant’s visitation. “[I]t is incumbent upon the parties to seek judicial resolution of . . . the language of judgments.” (Internal quotation marks omitted.) Berglass v. Berglass, supra, 71 Conn. App. 778. “It is inappropriate for the custodial parent in a high conflict case to be given decision-making control over the noncustodial parent’s access to minor children.” Id.
General Statutes § 52-256b (a) provides in relevant part: “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”