Medeiros v. Medeiros

 CHRISTINA MEDEIROS v. DAVID D. MEDEIROS
(AC 38070)
Keller, Prescott and Harper, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court finding
him in contempt for having violated a postjudgment order providing the
plaintiff with access to the parties’ minor child. The dissolution judgment
incorporated the parties’ parental responsibility plan, which provided
that the parties were to share joint legal and physical custody of the
child. Thereafter, the dissolution judgment was modified, awarding the
defendant sole legal custody of the child and requiring that the plaintiff’s
visitation with the child be supervised, but a later modification order
restored the parties’ joint legal custody and afforded the plaintiff with
unsupervised and overnight visits. During one of the child’s visits with
the plaintiff, there was an incident in which the plaintiff disciplined the
child. When the child returned to the defendant’s house, they discussed
what had occurred during that visit. Subsequently, the plaintiff filed a
motion for contempt alleging that the defendant had refused to allow
her access to the child in violation of the court’s order. At the hearing
on the contempt motion, the court sustained, on the ground of hearsay,
three separate objections by the plaintiff to the admission of testimony
regarding statements that the child had made to the defendant regarding
what had occurred during his visit with the plaintiff. Thereafter, the
trial court granted the plaintiff’s motion for contempt, finding that the
plaintiff had acted appropriately in disciplining the child and that the
defendant was in wilful contempt of its previous modification order
because his denial of access to the plaintiff was without justification.
The court then imposed sanctions, including fines, and that the defendant
be incarcerated for ten days and that he pay the plaintiff attorney’s fees
and marshal fees, but it stayed the order of incarceration pending the
defendant’s compliance with the court-ordered visitation. The court later
vacated the stayed incarceration order upon the defendant’s compliance
with it. On appeal, the defendant claimed, inter alia, that the trial court
committed error in failing to allow him a fair opportunity to present a
defense to the plaintiff’s motion for contempt by preventing him from
testifying as to statements made to him by the child concerning his visit
with the plaintiff. Held:
1. Although the trial court improperly precluded the defendant, on the ground
of hearsay, from testifying regarding statements made to him by the
child concerning what had occurred during the subject visit with the
plaintiff, the error was harmless, as it was unlikely to have affected the
outcome of the trial; although the challenged testimony should have
been admitted under the state of mind exception to the hearsay rule,
the exclusion of the statements did not rise to the level of substantial
prejudice or injustice to the defendant, as the record revealed that
the court, without objection, heard testimony from the defendant that
effectively conveyed the substance of the subject statements, but that
it found more credible the plaintiff’s testimony that she had appropriately
disciplined the child, and it found that the defendant was without justifi-
cation in denying the plaintiff access to the child.
2. The defendant could not prevail on his claim that the trial court failed
to determine that the evidence establishing its finding of contempt met
the required clear and convincing standard of proof; neither the court’s
oral decision nor its written order indicated what standard of proof the
court had applied, and because the defendant did not seek an articulation
or reargument of the court’s decision, it was not otherwise clear from
the record that an improper standard had been applied and this court
presumed that the trial court had applied the correct standard of clear
and convincing evidence.
3. Although the defendant’s claim challenging, as punitive, the trial court’s
imposition of the stayed incarceration order was moot given that the
court had vacated that order, the claim was reviewable because it quali-
fied for the capable of repetition yet evading review to the mootness
doctrine, as the challenged action was by its very nature of a limited
duration so that there was a strong likelihood that the substantial major-
ity of cases raising a question about its validity would become moot
before appellate litigation could be concluded, there was a reasonable
likelihood that the question presented would arise again in the future,
and the issue of whether a court appropriately may employ a stayed
incarceration order to monitor ongoing future compliance with a visita-
tion order that has been violated was a matter of sufficient public
importance; nevertheless, the stayed incarceration order was not
improper, as the order never reached a point where it became punitive
in that the court gave the defendant the ability to purge himself of the
threat of incarceration by complying with the visitation order for a
limited duration, and the order accomplished its purpose of obtaining
the defendant’s compliance with the visitation order.
4. The defendant could not prevail on his claim that the trial court abused
its discretion by failing to consider his ability to pay the plaintiff attor-
ney’s fees and marshal fees, he having waived his right to raise that
claim on appeal, as he failed to bring that objection to the attention of
the court at the time that it considered the plaintiff’s request for attor-
ney’s fees and marshal fees, and he did not raise any objection to the
plaintiff’s request for fees; nevertheless, the court erred in imposing
compensatory fines on the defendant without any evidence as to actual
damages suffered by the plaintiff, as the court failed to provide a factual
basis for the amount of its award of compensatory damages to the
plaintiff, nor was there any evidence presented that the plaintiff, apart
from her claimed attorney’s fees and costs of marshal service, incurred
any other pecuniary loss as a result of the defendant’s contumacious
conduct.
Argued January 9—officially released August 1, 2017
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Windham at Putnam and tried to the court,
Graziani, J.; judgment dissolving the marriage and
granting certain other relief; thereafter, the court, A.
dos Santos, J., denied the defendant’s motion to modify
visitation and granted the plaintiff’s motion for con-
tempt, and the defendant appealed to this court.
Reversed in part; judgment directed.
David A. Golas, for the appellant (defendant).
Andrew S. Knott, with whom, on the brief, was Robert
J. Santoro, for the appellee (plaintiff).
Opinion
KELLER, J. In this postdissolution proceeding, the
defendant, David D. Medeiros, appeals from the judg-
ment of the trial court finding him in contempt for
violating an order providing the plaintiff, Christine Med-
eiros, with access to their minor child. The defendant
claims that the court committed error in (1) failing to
allow him a fair opportunity to present a defense to the
plaintiff’s motion for contempt; (2) failing to require
that the evidence establishing its finding of contempt
met the required clear and convincing standard of proof;
(3) preventing the defendant from testifying as to state-
ments made to him by the minor child about events
occurring during a visit with the plaintiff; and (4) impos-
ing certain sanctions, including monetary fines. We
agree with the defendant that the monetary fines
imposed on him by the court were improper, accord-
ingly, we reverse that part of the judgment of the trial
court. The judgment is affirmed in all other respects.
The following facts, as determined by the trial court
in its oral decision of June 3, 2015,1 and procedural
history are relevant to this appeal. The parties were
divorced on February 28, 2013. There is one child issue
of the marriage, who was born in 2007. A parental
responsibility plan, agreed to by the parties, was incor-
porated into the judgment of dissolution. That plan
awarded joint legal custody and shared physical cus-
tody of the child to the parties. Subsequent to the date
of the judgment of dissolution and prior to the contempt
hearing that is the subject of this appeal, there were
five separate modifications of the judgment affecting
the orders pertaining to custody and access to the child.
The first two of these subsequent modifications
awarded the defendant sole legal custody of the child
and required that the plaintiff’s visitation with the child
be supervised, but the final modification, issued by the
court, Boland, J., on April 7, 2015, restored the parties’
joint legal custody, and the plaintiff was afforded access
consisting of unsupervised visits, with overnight visits
resuming effective July 30, 2015.2 The order also noted
that the child’s court appointed guardian ad litem, Tra-
cie Molinaro, would be discharged effective July 30,
2015.3
On May 13, 2015, the plaintiff filed a motion for con-
tempt alleging that on May 12, 2015, in violation of the
April 7, 2015 order, the defendant refused to allow her
access to the child and had threatened to stop all visita-
tion.4 The motion was heard by the court, dos Santos,
J., on June 3, 2015. The court heard testimony from the
plaintiff and the defendant. At the conclusion of the
hearing, following a recess, the court issued its oral
decision setting forth the factual basis for its finding
that the defendant was in wilful contempt of the April
7, 2015 order. The court stated: ‘‘The court finds that
the [plaintiff] did not access visitation, as ordered by
Judge Boland, and the denial of access visitation
occurred on May 12, on May 15, and May 17, and that
the denial was without justification.5
‘‘There was an incident, while the child was in [the
plaintiff’s] custody/visitation/access, where [the plain-
tiff] disciplined the child. The court finds, based upon
the credible testimony, that [the plaintiff] acted appro-
priately in disciplining the child. And the court also
further finds that the child was not physically disci-
plined by [the plaintiff]. The court finds that the child
acted unruly, and the [plaintiff] appropriately disci-
plined the child. The court notes that, in this instance,
the child does not have a say on whether or not he
wants to visit with [the plaintiff].
‘‘The court finds that [the defendant’s] actions in uti-
lizing the recommendations of the [guardian ad litem]
and the child’s counselor are being used to alienate the
ability of [the plaintiff] to parent this child, and that
[the defendant’s] actions are in wilful disregard of the
orders that were imposed by, only a short time ago
. . . Judge Boland.
‘‘The court notes in making its findings that the
[defendant] did not notify the police until he decided
that he was going to stop visitation, that he did not
contact [the Department of Children and Families] if
[the defendant] was so concerned about the child’s
welfare and well-being. And the court cannot find that
[the plaintiff] exposed the child to unsafe conditions
or situations.’’ (Footnote added.)
The court then imposed sanctions. It ordered that
the defendant be incarcerated for a period of ten days;
that he be fined for each day that he denied the plaintiff
access to her child at the rate of $100 per day, for a
total of $300; that he be fined for violating the court’s
order in the amount of $500; and that he pay the plaintiff
attorney’s fees of $2500 and marshal fees for service
in the amount of $143 within sixty days. With respect
to the ten day order of incarceration, the court stated:
‘‘Now, insofar as the ten days ordered incarceration,
the court will not, at this point, incarcerate the defen-
dant, but give him an opportunity to allow the court-
ordered visitation, that was ordered by Judge Boland,
to take place. So, the court will not impose the incarcer-
ation at this time, but it is there, and the court, then,
will consider whether or not to vacate it entirely upon
successful—upon the court being satisfied that [the
defendant] has complied with the court-ordered visita-
tion.’’6 On June 3, 2015, the court also issued a written
order reiterating, without reference to the factual find-
ings it had made in its oral decision that same day, its
finding of wilful contempt and the sanctions it had
imposed, and adding that all of the fines imposed were
to be paid within twenty days. This appeal followed.
Additional facts will be set forth as necessary.
I
We address the defendant’s first and third claims
together because they both relate to claimed error on
the part of the court in not permitting him to present
a defense to the motion for contempt. The defendant’s
first claim is that the court erred in failing to allow him
a fair opportunity to present his defense, and his third
claim is that the court erred in failing to allow him to
testify as to statements made to him by the child about
events occurring during a visit on May 10, 2015, with
the plaintiff.7 Specifically, the defendant asserts that
after allowing the plaintiff to testify as to what had
occurred on May 10, 2015, during her visit with the
child, including statements that she testified the child
had made to her,8 he was not permitted to testify as to
what the child told him when the child returned to the
defendant’s home after the visit.
We begin by setting forth the applicable standard of
review for evidentiary claims. ‘‘To the extent [that] a
trial court’s admission of evidence is based on an inter-
pretation of the Code of Evidence, our standard of
review is plenary. For example, whether a challenged
statement properly may be classified as hearsay and
whether a hearsay exception properly is identified are
legal questions demanding plenary review. . . . We
review the trial court’s decision to admit evidence, if
premised on a correct view of the law, however, for an
abuse of discretion. . . . In other words, only after a
trial court has made the legal determination that a par-
ticular statement is or is not hearsay, or is subject to
a hearsay exception, is it vested with the discretion to
admit or to bar the evidence based upon relevancy,
prejudice, or other legally appropriate grounds related
to the rule of evidence under which admission is being
sought.’’ (Citation omitted; internal quotation marks
omitted.) State v. Miguel C., 305 Conn. 562, 571–72, 46
A.3d 126 (2012).
‘‘In a civil case, the appellant has the burden of estab-
lishing the specific harmfulness of the error by demon-
strating the likelihood that the evidentiary ruling had
affected the result.’’ (Internal quotation marks omitted.)
Johnson v. Johnson, 111 Conn. App. 413, 420, 959 A.2d
637 (2008).
Relative to the issue of whether the court erred in
sustaining the plaintiff’s objections to the defendant’s
testimony as to what the child reported to him after
the May 10, 2015 visit, the following testimony occurred
during the direct examination of the defendant.
‘‘[The Defendant’s Counsel]: Mr. Medeiros, you were
in court April 7 when Judge Boland entered orders for
visitation, correct?
‘‘[The Defendant’s Counsel]: And keep your voice up.
‘‘[The Witness]: Okay.
‘‘[The Defendant’s Counsel]: Either that or I’ll stand
at the back of the courtroom and you’ll have to yell
at me.
‘‘[The Witness]: Okay. Yes.
‘‘[The Defendant’s Counsel]: And from that day for-
ward did you immediately start providing the visitation
that Judge Boland had ordered?
‘‘[The Witness]: Yeah. I was happy.
‘‘[The Defendant’s Counsel]: And how—when [the
child would] come home did he express concerns to
you over what was happening—
‘‘[The Plaintiff’s Counsel]: Objection. That would be
hearsay just as well.
‘‘[The Defendant’s Counsel]: No. I didn’t ask—I’m not
asking—his state of mind—
‘‘The Court: Well, it calls for a yes or no. I’ll allow
the question.
‘‘[The Witness]: Yes.
‘‘[The Defendant’s Counsel]: Okay. Did you discuss
these concerns with [the plaintiff]?
‘‘[The Witness]: Yes.
‘‘[The Defendant’s Counsel]: And all during the time
between April 7 and May 10 was [the child] provided
with a cell phone?
‘‘[The Witness]: Yes, he was. A safety phone.9
‘‘[The Defendant’s Counsel]: And what was your
understanding as to the use of the cell phone? Why was
he given a cell phone?
‘‘[The Witness]: [The child] was given a cell phone on
the recommendation, actually, of Judge Boland, where
[the child] could have a safety phone. If he felt uncom-
fortable he could—or if something wasn’t—if he needed
to—if he needed some reassurance or if he needed to
come home he could call. It was his safety phone. He
discussed that with his counselor as well.
‘‘[The Defendant’s Counsel]: All right. And did you
receive several phone calls between April 7 and May
10 from [the child]?
‘‘[The Witness]: Yes, I did.
‘‘[The Defendant’s Counsel]: Okay. And did you termi-
nate any of the visits because of the phone calls?
‘‘[The Witness]: No, I didn’t.
‘‘[The Defendant’s Counsel]: What would you nor-
mally tell [the child]?
‘‘[The Witness]: Well, I would listen to what was going
on, and I’d ask him to wait a little bit more time to see
if things could turn around, and typically he would call
back and say, well, things are—you know, I feel a little
bit better now, things are going good.
‘‘[The Defendant’s Counsel]: Did you ever terminate
a visit before May 10 because of a phone call?
‘‘[The Witness]: No, I didn’t.
‘‘[The Defendant’s Counsel]: Okay. On May 10 did
you terminate a visit, that was Mother’s Day?
‘‘[The Witness]: On Mother’s Day, no, I didn’t. But
the visits prior to that [the child] was—
‘‘[The Plaintiff’s Counsel]: I’m going to object. I mean,
we already put the time period as of May 12. The fact
that he complied with the court order for some limited
period of time should not have earned him any gravy
points, and it’s completely relevant. The relevancy is
his conduct on May 12. Okay.
‘‘The Court: Sustained.
‘‘[The Defendant’s Counsel]: Your Honor, I’m going
to claim it, because we’re looking at a reasonable cause
to deny a visit, and this is based on a course of con-
duct—increasing course of conduct. It wasn’t a one day
affair, it was an increasing course—
‘‘The Court: I sustained the objection. Ask your
next question.10
‘‘[The Defendant’s Counsel]: On May—again, on May
10 were there concerns raised—
‘‘[The Plaintiff’s Counsel]: Objection again, Your
Honor.
‘‘[The Defendant’s Counsel]: This is where—
‘‘[The Plaintiff’s Counsel]: It’s the same question.
‘‘The Court: Well, let her ask the question.
‘‘[The Defendant’s Counsel]: The plaintiff started—
‘‘The Court: Let counsel ask the question.
‘‘[The Defendant’s Counsel]: The plaintiff started tes-
tifying about May 10, and the events of May 10. I’m
asking for the same date.
‘‘The Court: Again, what’s the relevance or the—
‘‘[The Defendant’s Counsel]: Because it was—
‘‘The Court: What is your offer of proof on that issue?
‘‘[The Defendant’s Counsel]: That the child indicated
such an unsafe situation at [the plaintiff’s] house, which
was corroborated by [the plaintiff], that [the defendant]
felt [it] was unsafe to allow the child to see the [plaintiff]
on the next visitation day, which was a Tuesday.
And, again—
‘‘The Court: That’s the reason?
‘‘[The Defendant’s Counsel]: Yes, Your Honor.
‘‘The Court: Objection sustained. Ask your next
question.
‘‘[The Defendant’s Counsel]: Why did you not let
the—[the child] go to visit—to see [the plaintiff] on
May—on Tuesday?
‘‘[The Witness]: [The child] came home [shaken] to
his core. He was very, very upset, very scared. He was
discussing many things that had happened, and it was
very alarming and concerning. He was saying—he had
told me that he was being screamed at, that he was
being pushed, that he was being sworn at, that he was
grabbed by his forearms, picked up into the air and
slammed into a chair. He was—
‘‘[The Plaintiff’s Counsel]: Your Honor, I’m going to
object. First of all, it’s all hearsay—
‘‘[The Witness]: He was—he explained to me that—
‘‘[The Plaintiff’s Counsel]: Objection.
‘‘[Unknown Speaker]: One moment, sir. One moment.
‘‘The Court: Sustained.
‘‘[The Defendant’s Counsel]: Your Honor. Your
Honor, if—we’re looking at the causes that—the justifi-
cation for the termination. Whether these events
occurred the issue is whether [the defendant] was rea-
sonable in his understanding of what was going on.
There’s no other way—whether they occurred or not—
and, again, the [plaintiff] has given some evidence these
events did occur. The issue is whether he had reason-
able cause to take the steps he did.
‘‘[The Plaintiff’s Counsel]: I’m going still—
‘‘The Court: Sustained. Ask your next question.
‘‘[The Plaintiff’s Counsel]: The issue is a contempt
motion and whether he had—
‘‘[The Defendant’s Counsel]: He brought it out.
‘‘[The Plaintiff’s Counsel]: Okay. No. I did not bring
it out.
‘‘[The Defendant’s Counsel]: With [the plaintiff]. He
asked [the plaintiff] what happened on May 10.
‘‘[The Plaintiff’s Counsel]: He’s basing it solely on the
hearsay evidence of an eight year old boy, who we have
no corroboration whatsoever, except for the testimony
of the [defendant] who allegedly or—okay—committed
contempt of a court order, and he’s facing to go into
prison.
‘‘[The Defendant’s Counsel]: The—
‘‘The Court: Ask your next question.
‘‘[The Defendant’s Counsel]: Your Honor, are you bar-
ring me from bringing up any evidence as to the reason
[the defendant] made this decision?
‘‘The Court: You can ask him that.
‘‘[The Defendant’s Counsel]: I just did, Your Honor.
That was my question.
‘‘The Court: No. He testified of what [the child] said
to him.
‘‘[The Defendant’s Counsel]: I’m asking him why he
decided to—
‘‘The Court: Well, then ask him that question.
‘‘[The Defendant’s Counsel]: Why did you decide to
terminate—or not allow a visit on Tuesday, May—
May 12?
‘‘[The Witness]: Okay. [The child] came—[the child]
was very distraught, he was very upset. He explained
many things to me. I contacted [the plaintiff], I con-
tacted the guardian ad litem, and I contacted [the
child’s] counselor to discuss these concerns. I made an
appointment for [the child] to see his counselor. [The
plaintiff] confirmed that these things had happened and,
you know, we had a discussion if, you know—if these—
if this was healthy and is this safe and, you know—it
was obvious that it’s not safe or healthy—
‘‘[The Plaintiff’s Counsel]: Objection—
‘‘[The Witness]: —and—
‘‘[The Plaintiff’s Counsel]: —to his conclusions.
‘‘The Court: I’ll strike his opinion on whether it was
safe and unhealthy.
‘‘[The Defendant’s Counsel]: Did—was it your under-
standing that [the child] was not allowed contact—
allowed his telephone to call you, his safety phone?
‘‘[The Witness]: Yeah. Yes.
‘‘[The Defendant’s Counsel]: Was it your understand-
ing that [the plaintiff] had picked him up and put him
in a chair physically?
‘‘[The Witness]: Yes.
‘‘[The Defendant’s Counsel]: And is there a provision
in the court order of May 7 saying that there should be
no physical discipline of the child?
‘‘[The Witness]: Yes. Absolutely.’’ (Footnote added.)
The defendant claims that the court prevented him
from explaining why his reaction to the child’s report
to him of what had occurred during the visit with the
plaintiff on Sunday, May 10, 2015, was reasonable and,
thus, did not constitute a wilful violation of the court’s
order.11 He maintains that the court improperly sus-
tained the plaintiff’s objections to the admission of evi-
dence of what the child reported to him as hearsay
although he had offered it not for the truth of the child’s
statements, but to show the child’s state of mind after
the visit on May 10, 2015, which resulted in his reason-
ably justified decision to prevent visits from taking
place on May 12, May 15, and May 17, 2015.12 The plain-
tiff argues that the testimony was hearsay. We agree
with the defendant that the court should have allowed
the child’s May 10, 2015 statements to him into evidence
under the state of mind of the declarant exception to
the hearsay rule, but, in light of the testimony the court
eventually did hear from the defendant about the child’s
reported reaction to that visit, without objection from
the plaintiff, we conclude that the error was harmless.
State of mind is an exception to the hearsay rule,
referred to in our Code of Evidence as then-existing
mental or emotional condition. See Conn. Code Evid.
§ 8-3 (4).13 Several times during his testimony, the defen-
dant indicated that the child had returned from the May
10, 2015 visit with the plaintiff ‘‘very upset, very scared,’’
and ‘‘very distraught.’’ The defendant’s testimony was
admissible to show the child’s state of mind and emo-
tional condition at the time rather than to prove the
truth of what the child stated had occurred. The defen-
dant was offering the statements of the child to explain
the reasons the child provided for his emotional dis-
tress. Such evidence was relevant to whether the defen-
dant’s conduct in disallowing the next three visits was
reasonable under the circumstances.14
The record, however, reveals that subsequent to the
three times the court sustained the plaintiff’s objections
to the offer of the child’s statements as hearsay, the
court, without objection, heard testimony from the
defendant that effectively conveyed the gist of the infor-
mation he previously had attempted, unsuccessfully, to
introduce. He was able to relay to the court that the
child returned from the May 10, 2015 visit distraught
and upset and had explained many things to him, includ-
ing not being allowed to telephone the defendant when
he felt unsafe, and being picked up and put in a chair
physically. The court also heard evidence that after
police officers spoke with the child at his school on
May 15, 2015, they determined that rather than have a
visit occur with the plaintiff, it was best that he go
home with the defendant. The defendant also testified
that he had concerns for the child’s safety. Ultimately,
the defendant was able to convey these points to the
court. The court, however, found the plaintiff’s testi-
mony that she had appropriately disciplined the child
more credible15 and determined that the defendant’s
conduct in depriving the plaintiff of three subsequent
visits was not justified. We, therefore, conclude that
although the challenged testimony should have been
admitted under the state of mind exception to the hear-
say rule, the exclusion does not rise to the level of
substantial prejudice or injustice to the defendant.
‘‘Although the defendant frames the appellate issue as
one of a constitutional violation, [the] ultimate conclu-
sion turns on evidentiary grounds. . . . It is a funda-
mental rule of appellate review of evidentiary rulings
that if [the] error is not of constitutional dimensions,
an appellant has the burden of establishing that there
has been an erroneous ruling which was probably harm-
ful to him. . . . The relevant inquiry is whether the
claimed error of the trial court is likely to have affected
the outcome of the trial.’’ (Citations omitted; internal
quotation marks omitted.) State v. Samuels, 75 Conn.
App. 671, 715, 817 A.2d 719 (2003), rev’d on other
grounds, 273 Conn. 541, 871 A.2d 1005 (2005). On the
basis of our review of the record, we are not persuaded
that the court’s error likely affected the outcome of the
trial. Accordingly, the defendant’s first and third claims
are without merit.
II
The defendant’s second claim is that the trial court
failed to determine that the evidence establishing its
finding of contempt met the required clear and convinc-
ing standard of proof. We disagree.
We first note the applicable standard of review. ‘‘The
question of whether a trial court has held a party to a
less exacting standard of proof than the law requires
is a legal one. . . . Accordingly, our review is plenary.’’
(Citation omitted.) Kaczynski v. Kaczynski, 294 Conn.
121, 126, 981 A.2d 1068 (2009).
The defendant relies upon Brody v. Brody, 315 Conn.
300, 318–19,105 A.3d 887 (2015), for the proposition that
indirect civil contempt proceedings should be proven by
clear and convincing evidence, and that because the
court, in the face of the conflicting testimony of the
plaintiff and the defendant, failed to state it had based
its finding of contempt on clear and convincing evi-
dence, it is not clear that the court weighed the evidence
under the proper standard.16 The plaintiff counters that
the evidence sufficiently established by clear and con-
vincing evidence that the defendant was in contempt
of the court’s order.
First, contrary to the plaintiff’s argument with respect
to this claim, the defendant does not contest the find-
ings relied on by the court to conclude that his actions
were wilful and in violation of the court’s order. Rather,
the defendant asks that the matter be remanded for a
new hearing to assure that the court applied the proper
standard of proof because the court’s decision is silent
on that particular point.17
The decision of our Supreme Court in Kaczynski v.
Kaczynski, supra, 294 Conn. 121, is dispositive. Like
the defendant in the present case, the defendant in
Kaczynski claimed on appeal that the trial court’s deci-
sion on a fraud claim should be reversed because the
trial court failed to indicate, either explicitly or implic-
itly, that it was applying the clear and convincing stan-
dard of proof when making its findings of fraud. Id., 125.
‘‘[A] defendant has an obligation to supply this court
with a record adequate to review his claim of error.
. . . It is important to recognize that a claim of error
cannot be predicated on an assumption that the trial
court acted erroneously. . . . When a trial court in a
civil matter requiring proof by clear and convincing
evidence fails to state what standard of proof it has
applied, a reviewing court will presume that the correct
standard was used. If a party, following the rendering
of the trial court’s judgment, believes that the trial court
potentially utilized the less stringent standard of pre-
ponderance of the evidence, that party has the burden
of seeking an articulation if the decision is unclear . . .
or reargument if impropriety is apparent; see Practice
Book § 11-12; thus giving that court the opportunity to
clarify the standard used or to correct the impropriety
and thereby avoiding an unnecessary appeal. If, instead,
the party forgoes articulation or reargument and instead
chooses to raise the issue for the first time on appeal,
the reviewing court will not presume error from silence
as to the standard used.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) Kaczynski
v. Kaczynski, supra, 294 Conn. 129–31.
Neither the court’s oral decision nor its written order,
both issued on June 3, 2015, indicate what standard of
proof the court applied, and the defendant did not seek
articulation or reargument of its decision.18 Conse-
quently, because it is not otherwise clear from the
record that an improper standard was applied, we pre-
sume that the court applied the clear and convincing
evidence standard. Accordingly, we are not persuaded
by the defendant’s second claim.
III
The defendant’s final claim is that the court erred in
the imposition of sanctions for his contempt. Specifi-
cally, the defendant challenges the propriety of both
fines, the ten day order of incarceration, and the award
to the plaintiff of attorney’s fees and costs. The plaintiff
counters that all of the court’s imposed sanctions were
appropriate. We agree with the defendant that the fines
imposed were improper but conclude that there are
no grounds to reverse any of the other sanctions the
court ordered.
We begin with a discussion of the nature of the con-
tempt proceeding in the present case and the type of
sanctions that may be imposed. ‘‘[C]riminal contempt
is conduct directed against the authority and dignity
of the court, while civil contempt is conduct directed
against the rights of the opposing party. . . . A con-
tempt is considered civil when the punishment is wholly
remedial, serves only the purposes of the complainant,
and is not intended as a deterrent to offenses against
the public. . . . Sanctions for civil contempt may be
either a fine or imprisonment; the 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.’’ (Internal quotation marks omitted.)
DPF Financial Holdings, LLC v. Lyons, 129 Conn. App.
380, 385, 21 A.3d 834 (2011). Because the grounds for
the motion for contempt and sanctions in the present
case were to serve the purposes of and to compensate
the plaintiff, we conclude that the contempt was prop-
erly classified as civil, rather than criminal, in nature.
‘‘Contempt is a disobedience to the rules and orders of
a court which has power to punish for such an offense.
. . . Contempts of court may also be classified as either
direct or indirect, the test being whether the contempt
is offered within or outside the presence of the court.’’
(Citation omitted; internal quotation marks omitted.)
Edmond v. Foisey, 111 Conn. App. 760, 769, 961 A.2d 441(2008). The plaintiff in this case alleged in her motion for
contempt that the defendant failed to comply with the
court’s order, thus depriving her of visitation with the
child. Because this occurred outside of the court’s pres-
ence, the contempt is properly classified as indirect
civil contempt.
A
We first address the stayed order of incarceration.
The record reveals that on June 24, 2015, the court
vacated its order of incarceration, which had been
stayed. Neither of the parties brought this fact to our
attention in their respective briefs. On February 22,
2017, we ordered the parties to file simultaneous supple-
mental briefs to address the following issue: ‘‘If this
court determined that the contempt finding was proper,
in determining the propriety of the sanctions that were
imposed, should this court dismiss that portion of the
appeal challenging the imposition of the incarceration
order as moot?’’ Having reviewed the supplemental
briefs, we conclude that the issue of the propriety of
the incarceration order satisfies an exception to the
mootness doctrine because it is capable of repetition
yet evading review.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction . . . .’’ (Inter-
nal quotation marks omitted.) Rocque v. Design Land
Developers of Milford, Inc., 82 Conn. App. 361, 369 n.3,
844 A.2d 282 (2004). ‘‘If there is no longer an actual
controversy in which [this court] can afford practical
relief to the parties, we must dismiss the appeal.’’ (Inter-
nal quotation marks omitted.) Fiddelman v. Redmon,
59 Conn. App. 481, 483, 757 A.2d 671 (2000). ‘‘In
determining mootness, the dispositive question is
whether a successful appeal would benefit the plaintiff
or defendant in any way.’’ Hechtman v. Savitsky, 62
Conn. App. 654, 659, 772 A.2d 673 (2001). We recognize
that an appeal challenging the validity of a court’s find-
ing of contempt, even when purged by making pay-
ments, is not moot because a contempt finding has
collateral consequences in that it may impact the con-
temnor’s future status in the action. ‘‘For example, a
future citation for contempt, given the first finding of
contempt which is the subject of [the same] case, would
make the defendant appear more recalcitrant than he
might be, in fact. Such an impression is likely to affect
a trial court’s determination of the penalty attendant
on any future finding of contempt in this [same] case.’’
Sgarellino v. Hightower, 13 Conn. App. 591, 594–95,
538 A.2d 1065 (1988). In the present case, however,
having found no error in the court’s finding that the
defendant was in contempt, the collateral consequences
of that finding remain attached regardless of the propri-
ety of the sanctions imposed. Accordingly, there would
be no reason to review the propriety of the sanctions
on the basis of collateral consequences that will con-
tinue to flow from the contempt finding regardless of
whether some of the sanctions ordered upon a valid
finding of contempt were improper.
If a controversy is moot, however, it is still justiciable
if it meets the requirements of the ‘‘capable of repetition,
yet evading review’’ doctrine, an exception to the moot-
ness doctrine. See Sweeney v. Sweeney, 271 Conn. 193,
201, 856 A.2d 997 (2004). Our Supreme Court has articu-
lated the following three requirements for an otherwise
moot controversy to be justiciable under this exception.
‘‘First, the challenged action, or the effect of the chal-
lenged action, by its very nature must be of a limited
duration so that there is a strong likelihood that the
substantial majority of cases raising a question about
its validity will become moot before appellate litigation
can be concluded. Second, there must be a reasonable
likelihood that the question presented in the pending
case will arise again in the future, and that it will affect
either the same complaining party or a reasonably iden-
tifiable group for whom that party can be said to act
as surrogate. Third, the question must have some public
importance.’’ Loisel v. Rowe, 233 Conn. 370, 382, 660
A.2d 323 (1995).
With respect to the first requirement, we recognize
that most incarceration sanctions imposed pursuant to
a finding of contempt in a family case, even if incarcera-
tion is stayed, are of limited duration. An incarcerated
person will either purge the contempt and be released
from imprisonment or be released when the court con-
cludes, upon further review, that the contemnor is
unable to purge.19 Where the order is stayed to monitor
compliance, such monitoring in most cases will occur
over the span of, at most, a few continuances unless the
continued failure to comply results in further contempt
findings and sanctions.
As to the second requirement, the defendant notes
that there is a reasonable likelihood that the question
presented in this case will arise again in the future
between the same parties and may affect him. The cus-
tody and visitation issues in this case have generated
considerable court business since the date of the judg-
ment of dissolution in 2013. We take judicial notice of
the trial court file in this case, which indicates that
disputes concerning the plaintiff’s access to the child
are ongoing. The defendant filed a motion to suspend
all of the plaintiff’s visits on July 10, 2015, barely a
month after the contempt ruling at issue in this appeal
was issued. Subsequently, after the court ordered copar-
enting counseling on October 27, 2015, the plaintiff filed
two motions for contempt concerning the defendant’s
refusal to participate. The defendant also can be said
to be representative of all alleged contemnors in ques-
tioning the authority of a court to issue an incarceration
order upon a finding of contempt, but stay that incarcer-
ation to monitor future compliance with the order that
the contemnor was found to have violated. This is not
an isolated incident not likely to be repeated in the
foreseeable future in the present case or in other future
cases involving contempt of parental access orders. See
Shays v. Local Grievance Committee, 197 Conn. 566,
574, 499 A.2d 1158 (1985).
Finally, we consider the issue of whether a court
appropriately may employ a stayed incarceration order
to monitor ongoing future compliance with a visitation
order that has been violated to be a matter of sufficient
public importance. Ensuring compliance by a custodial
parent with appropriate orders granting visitation to
the other parent can be a particularly vexing dilemma
that must be addressed to protect both the best interests
of the child and the visiting parent’s fundamental ‘‘right
to family integrity, including the right to the care, cus-
tody, companionship and management of one’s children
. . . .’’ Roth v. Weston, 259 Conn. 202, 210, 789 A.2d
431 (2002). We further recognize that cases regularly
arise where the custodial parent displays a blatant disre-
gard of a court order providing the other parent with
meaningful contact with the child. We think it is
important to determine whether the particular weapon
of a stay of incarceration to monitor future compliance
for a limited duration should properly remain in the trial
courts’ arsenal for enforcing their orders. Therefore, we
conclude that the exception to the mootness doctrine
applies in the present case and determine that the issue
as to the propriety of the incarceration order is capable
of repetition, yet evading review.
Having determined to review the issue, we agree with
the plaintiff that the stayed incarceration order was not
improper. Although the defendant might have resumed
his compliance with the plaintiff’s parental access order
in the few weeks immediately preceding the contempt
hearing, he had begun violating the order almost imme-
diately after the court, Boland, J., had concluded a
contested hearing and modified the visitation orders to
expand what previously had been the plaintiff’s very
limited access to the child. This resulted, almost imme-
diately, in the plaintiff having to expend further sums
of money and time to enforce rights that she only
recently had obtained after a contested hearing. The
defendant claims that the incarceration order was puni-
tive because he had no ability to purge his contempt
because if he was incarcerated for ten days, he would
not be able to adhere to the visitation schedule. This
misrepresents the nature of the order. The court gave
him the ability to purge himself of the threat of incarcer-
ation by complying with the visitation orders for a lim-
ited duration. The defendant, therefore, had the ability
to prevent his incarceration altogether if he continued
to remain compliant, which he did, resulting in the
vacating of the incarceration order only a few weeks
after it was entered. Such an order also enabled the
plaintiff to await the outcome of this conditional test
of the defendant’s continued willingness to comply
without having to immediately resort to the expense
of initiating another motion for contempt and serving
another citation on the defendant. The defendant was
provided with the keys to continuing freedom from
incarceration by exhibiting a short period of full compli-
ance. As a result of such compliance, the court would
have no justification for vacating the stay and imposing
a ten day term of incarceration.
Civil contempt sanctions are intended to operate in a
prospective manner and are ‘‘designed to compel future
compliance with a court order . . . and avoidable
through obedience . . . .’’ International Union,
United Mine Workers v. Bagwell, 512 U.S. 821, 827, 114
S. Ct. 2552, 129 L. Ed. 2d 642 (1994). We decline to
deprive our trial courts of the useful sanction of a stayed
incarceration order and conclude that a court, con-
fronted with a contemnor who has displayed unsatisfac-
tory reasons for his refusal to follow the court’s orders,
should have the authority, as part of the contempt pro-
cess, to require, as a condition of a stayed order of
incarceration, the contemnor’s continued appearance
before the court for the purpose of monitoring his future
compliance for a reasonable time period. We acknowl-
edge that in the event the contemnor returns to court
on a future date for the purpose of monitoring his com-
pliance and is shown to have persisted in his noncompli-
ance, there is a legitimate question as to whether the
court could immediately impose the stayed incarcera-
tion without further process by providing the contem-
nor with an opportunity to be heard and the imposition
of a newly crafted sanction that would provide him
with the ability to purge his contempt. If the court
imposed the ten days of incarceration previously
stayed, there would have to be an additional order with
which the defendant could comply to secure his release
or to reduce the length of his imprisonment, or the
incarceration ‘‘[will] not have been coercive, it [will]
have been a purely punitive sanction for a previous
. . . violation. There [will] have been no opportunity
. . . to purge himself of the civil contempt.’’ Eric S. v.
Tiffany S., 143 Conn. App. 1, 11, 68 A.3d 139 (2013).
The present case, however, never reached a point where
the incarceration order imposed became punitive, and
the stayed incarceration order accomplished its pur-
pose—the defendant, who controlled his own destiny,
complied with the access order and avoided being
jailed.
B
Before discussing the specifics of the defendant’s
claim as it relates to the fines imposed, we identify the
applicable standard of review. ‘‘[In Papa v. New Haven
Federation of Teachers, 186 Conn. 725, 738, 444 A.2d
196 (1982),] the [Supreme Court] reviewed the claim
that the penalties imposed by the trial court were
improper and an abuse of discretion. . . . These claims
are reviewable in an appeal from the contempt judg-
ment because the contemnor must have some remedy
for unauthorized or excessive penalties.’’ (Citation
omitted; emphasis in original; internal quotation marks
omitted.) Edmond v. Foisey, supra, 111 Conn. App.
774. Accordingly, we review the propriety of the fines
imposed pursuant to an abuse of discretion standard.
The defendant first argues that the court exceeded
its discretion in ordering, as a sanction for his contempt,
a compensatory damages award to the plaintiff of $100
per day as a fine for each day that the defendant denied
the plaintiff access with the child, for a total of $300.
The defendant asserts that this fine has no basis in fact.
The court also imposed ‘‘a fine of $500 for violating the
court’s order’’ without directing to whom the fine was
payable. The defendant argues this $500 fine was
improper as a civil contempt fine if the court intended
that it be paid to the plaintiff because it also lacked
any basis in fact. He further argues that if the court
intended this $500 fine to be payable to the state, the
court improperly imposed a criminal contempt fine.
Because we presume the court correctly analyzed the
law in rendering its judgment; DiBella v. Widlitz, 207
Conn. 194, 203–204, 541 A.2d 91 (1988); absent a clear
indication to the contrary, we decline to infer that the
court engaged in the procedural irregularity of conduct-
ing a nonsummary criminal contempt proceeding in the
context of a motion for contempt filed by a party in a
family relations matter.20 On the basis of the record
before us, we conclude that the court correctly under-
stood it was conducting a civil contempt proceeding
and, therefore, all of the fines it imposed were intended
to compensate the plaintiff.
Civil contempt fines, however, must be based on
actual loss. ‘‘Judicial sanctions in civil contempt pro-
ceedings may, in a proper case, be employed . . . to
compensate the complainant for losses sustained. . . .
Where compensation is intended, a fine is imposed,
payable to the complainant. Such fine must of course
be based upon evidence of [the] complainant’s actual
loss . . . . Civil contempt proceedings are not puni-
tive—i.e., they are not imposed for the purpose of vindi-
cating the court’s authority—but are purely remedial.
. . . [I]t is well settled . . . that the court may, in a
proceeding for civil contempt, impose the remedial pun-
ishment of a fine payable to an aggrieved litigant as
compensation for the special damages he may have
sustained by reason of the contumacious conduct of
the offender. . . . [S]uch a compensatory fine must
necessarily be limited to the actual damages suffered
by the injured party as a result of the violation . . . .’’
(Citations omitted; emphasis altered; internal quotation
marks omitted.) DeMartino v. Monroe Little League,
Inc., 192 Conn. 271, 278–79, 471 A.2d 638 (1984). In the
present case, the court failed to provide a factual basis
for the amount of its award of compensatory damages
to the plaintiff in the nature of the fines totaling $800,
nor was there any evidence presented that the plaintiff,
apart from her claimed attorney’s fees and costs of
marshal service, incurred any other pecuniary loss as
a result of the defendant’s contumacious conduct.
Accordingly, we conclude the court erred in imposing
compensatory fines on the defendant without any evi-
dence as to actual damages suffered by the plaintiff.21
C
Finally, we address the defendant’s claim that the
award of $2500 in attorney’s fees, plus $143 in marshal
fees to the plaintiff was improper.22 ‘‘[A]bsent contrac-
tual or statutory authorization, there can be no recov-
ery, either as costs or damages . . . for counsel fees by
a party from his opponent.’’ (Internal quotation marks
omitted.) Marquardt & Roche/Meditz & Hackett, Inc.
v. Riverbend Executive Center, Inc., 74 Conn. App. 412,
428–29, 812 A.2d 175 (2003). ‘‘When any person is found
in contempt of an order of the Superior Court entered
under [the applicable marriage dissolution statutes] the
court may award to the petitioner a reasonable attor-
ney’s fee . . . . On appeal, we review the court’s order
for abuse of discretion.’’ (Internal quotation marks omit-
ted.) Dowd v. Dowd, 96 Conn. App. 75, 86, 899 A.2d 76,
cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).
The defendant claims that the court abused its discre-
tion in ordering that the defendant pay attorney’s fees
to the plaintiff because its sole consideration was a
review of the oral representation of the plaintiff’s coun-
sel to the court detailing his fees and expenses, and
whether the charges appeared reasonable. The court,
the defendant argues, failed to consider the total finan-
cial resources of the parties in light of the statutory
criteria contained in General Statutes § 46b-62.23 The
defendant relies on Miller v. Miller, 16 Conn. App. 412,
418, 547 A.2d 922, cert. denied, 209 Conn. 823 (1988),
in which the court stated: ‘‘In determining whether to
award counsel fees, the trial court must consider the
total financial resources of the parties in light of the
statutory criteria.’’ (Internal quotation marks omitted.)
The plaintiff claims that the court’s consideration of
the statutory criteria and the defendant’s ability to pay
the attorney’s fees is implicit in its earlier determina-
tion, which occurred during the same hearing on June
3, 2015, that the defendant had the ability to pay 90
percent of the $1500 fee retainer for the newly
appointed guardian ad litem.
The defendant does not contest the reasonableness
of the amount of the attorney’s fees requested by the
plaintiff, which was supported by the bare representa-
tions of the plaintiff’s counsel, not an affidavit, that he
spent ten hours prosecuting the motion for contempt
at a rate of $250 an hour. Rather, the defendant claims
that the court abused its discretion by failing to consider
his ability to pay the fees. Our careful review of the
record reveals that the defendant not only failed to
bring this objection to the attention of the court at
the time that it considered the plaintiff’s request for
attorney’s fees, but he also failed to raise any objection
to that request. On this record, we conclude that the
defendant waived his right to raise the present claim
on appeal.
In Smith v. Snyder, 267 Conn. 456, 481, 839 A.2d 589(2004), our Supreme Court reasoned: ‘‘[A]lthough a bare
request for attorney’s fees, without more, ordinarily
would not suffice . . . we conclude that a reversal of
the award in the present case is not justified in light of
the defendants’ failure, prior to this appeal, to interpose
any objection whatsoever to the plaintiffs’ request for
attorney’s fees. In other words, the defendants, in failing
to object to the plaintiffs’ request for attorney’s fees,
effectively acquiesced in that request, and, conse-
quently, they now will not be heard to complain about
that request.’’ (Emphasis in original.) Subsequently, this
court has followed the rationale in Smith in declining
to review claims arising from an award of attorney’s
fees. See, e.g., Florian v. Lenge, 91 Conn. App. 268, 285,
880 A.2d 985 (2005); Arcano v. Board of Education, 81
Conn. App. 761, 770–71, 841 A.2d 742 (2004).
The judgment is reversed in part and the case is
remanded with direction to vacate the $800 in fines
imposed on the defendant; the judgment is affirmed in
all other respects.
In this opinion the other judges concurred.
1
Both parties have relied on the court’s oral ruling of June 3, 2015. The
record does not contain a signed transcript of the court’s decision, as is
required by Practice Book § 64-1 (a), and the defendant did not file a motion
pursuant to Practice Book § 64-1 (b) providing notice that the court had
not filed a signed transcript of its oral decision. Nor did the defendant take
any additional steps to obtain a decision in compliance with Practice Book
§ 64-1 (a). In some cases in which the requirements of Practice Book § 64-
1 (a) have not been followed, this court has declined to review the claims
raised on appeal due to the lack of an adequate record. Despite the absence
of a signed transcript of the court’s oral decision or a written memorandum
of decision, however, our ability to review the claims raised on appeal is
not hampered because we are able to readily identify a sufficiently detailed
and concise statement of the court’s findings in the transcript of the proceed-
ing. See State v. Brunette, 92 Conn. App. 440, 446, 886 A.2d 427 (2005), cert.
denied, 277 Conn. 902, 891 A.2d 2 (2006).
2
The final modification, effective April 7, 2015, includes a number of
conditions clearly related to ensuring the safety of the child. It requires that
the plaintiff not have any third party present during her visits who is known
to be a criminal or involved with the Department of Children and Families,
or who is an alcoholic or substance abuser. The plaintiff also cannot permit
any contact between the child and his maternal grandparents, and she
cannot use alcohol twenty-four hours before or during visits or abuse illegal
substances and must continue with her current treatment provider. In addi-
tion, the child is to be provided with a cell phone, and no corporal punishment
is to be used by either parent or any third party on the child.
3
Although apparently consulted by the defendant subsequent to the visit
of May 10, 2015, Molinaro was not present for the contempt hearing on June
3, 2015, in order to make any recommendation to the court. On June 3, 2015,
the court commenced the contempt hearing by replacing her as guardian ad
litem with Attorney George Duhaime, whose fees, including a retainer of
$1500 payable within thirty days, were to be paid 90 percent by the defendant
and 10 percent by the plaintiff. Although General Statutes § 46b-54 (e) pro-
vides, in relevant part, that ‘‘[a] guardian ad litem for the minor child . . .
shall be heard on all matters pertaining to the interests of any child, including
the custody, care, support, education and visitation of the child, so long as
the court deems such representation to be in the best interests of the child,’’
the defendant has not raised any claim premised on Molinaro’s absence as
guardian ad litem on the date of the contempt hearing.
4
Pursuant to Practice Book § 25-27, a motion for contempt must, inter
alia, state ‘‘the specific acts alleged to constitute the contempt . . . .’’ During
the hearing on the motion for contempt, the defendant failed to object when
the plaintiff, without amending her motion, introduced evidence that she
also was denied visits with the child on two additional days, May 15 and
May 17. ‘‘[T]he proper way to attack a variance between pleadings and proof
is by objection at the trial to the admissibility of that evidence which varies
from the pleadings, and failure to do so at the trial constitutes a waiver of
any objection to such variance.’’ (Internal quotation marks omitted.) Russo
Roofing, Inc. v. Rottman, 86 Conn. App. 767, 774 n.6, 863 A.2d 713 (2005).
5
The plaintiff indicated that before the first missed visit on May 12, 2015,
the defendant told her that the visitation was to stop and that she was not
going to see the child until a safer environment was in place.
6
The record reveals that on June 24, 2015, nine days after this appeal
was filed, the court vacated the ten day incarceration order, finding that
the defendant was in compliance.
7
In reviewing the record and the defendant’s appellate brief, we conclude
that the real basis for those claims are evidentiary in nature, which the
defendant has attempted to masquerade as a constitutional deprivation of
his right to present a defense. The defendant has failed to cite any authority
for the proposition that disallowing testimony as to a declarant’s state of
mind in a situation analogous to that on appeal is of constitutional magnitude,
state or federal. We, therefore, address both of these claims as a single
claim of evidentiary error. See, e.g., State v. Walker, 215 Conn. 1, 5, 574
A.2d 188 (1990) (‘‘the admissibility of evidence is a matter of state law and
unless there is a resultant denial of fundamental fairness or the denial of a
specific constitutional right, no constitutional issue is involved’’ [internal
quotation marks omitted]).
In addition, in the present case, after a thorough review of the record,
we detect no denial of fundamental fairness or a specific constitutional
right. The defendant was provided with all the due process safeguards that
must be satisfied in a contempt hearing. He was advised of the allegations
against him, had a reasonable opportunity to meet them by way of defense
or explanation, was represented by counsel, and had a chance to testify
and call other witnesses on his behalf, although he did not choose to call
any other witnesses. See Brody v. Brody, 315 Conn. 300, 317–18, 105 A.3d
887 (2015).
8
The defendant posed no objection to the plaintiff’s testimony in this
regard.
9
On September 26, 2014, the court, Boland, J., in modifying the terms of
the plaintiff’s access to the child, ordered unsupervised visits to resume
and included an order that the child be provided with a cell phone so that
if a problem with the plaintiff arose, the child could call the defendant to
come pick him up. In the order issued by Judge Boland on April 7, 2015,
the parties were ordered to continue to provide the child with a cell phone.
10
In his appellate brief, the defendant makes a brief reference to this
particular ruling, but mischaracterizes it as another incident in which the
court precluded his testimony as to what the child had stated to him about
the visit occurring on May 10, 2015. The question posed, however, to which
the plaintiff took objection, was broader in scope and attempted to explore
the defendant’s opinion as to how visitation had been going prior to May
10, 2015. The defendant has failed to provide any analysis as to why the
court’s sustaining of the plaintiff’s objection, based on relevancy, was
improper. We, therefore, deem any claim pertaining to this particular ruling
as inadequately briefed and decline to address it. See Jalbert v. Mulligan,
153 Conn. App. 124, 133, 101 A.3d 279, cert. denied, 315 Conn. 901, 104 A.3d
107 (2014).
11
‘‘The inability of the defendant to obey an order of the court, without
fault on his part, is a good defense to a charge of contempt.’’ Tobey v. Tobey,
165 Conn. 742, 746, 345 A.2d 21 (1974). The defendant claimed that it was
essential to disallow the plaintiff’s visits due to concerns for the child’s
safety emanating from things that the child had expressed to the defendant
and the recommendations of the guardian ad litem and the child’s counselor.
12
The record also reveals that, before the trial court, the defendant’s
counsel also may have been arguing that the testimony was not hearsay
because it was not offered for its truth but only to show its effect on the
hearer. See Conn. Code Evid. § 8-1 (3); State v. Miguel C., supra, 305 Conn.
574 (‘‘if used for the purported purpose of demonstrating the effect of the
[declarant’s] statement on the [hearer], the contested testimony [is] not
hearsay’’). Our thorough review of the defendant’s arguments on appeal
reflects that, in his principal brief, the defendant failed to rely on this
argument. For the first time in his reply brief, the defendant argues that the
child’s statements were ‘‘related to the defendant’s belief that it was unsafe
for the . . . child to visit with the plaintiff at her home.’’ (Emphasis omitted.)
To the extent that the defendant’s reply brief invites this court to consider
whether the evidence was admissible to demonstrate its effect on him, the
hearer, we decline to address such argument for two reasons. First, we
observe that the argument is not supported by any citation to or analysis
of relevant law. ‘‘We repeatedly have stated that [w]e are not required to
review issues that have been improperly presented to this court through an
inadequate brief. . . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure to brief the issue
properly. . . . [F]or this court judiciously and efficiently to consider claims
of error raised on appeal . . . the parties must clearly and fully set forth
their arguments in their briefs. . . . The parties may not merely cite a legal
principle without analyzing the relationship between the facts of the case
and the law cited.’’ (Citation omitted; internal quotation marks omitted.)
State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016). Second, ‘‘[i]t is well
established . . . that [c]laims . . . are unreviewable when raised for the
first time in a reply brief. . . . Our practice requires an appellant to raise
claims of error in his original brief, so that the issue as framed by him can
be fully responded to by the appellee in its brief, and so that we can have
the full benefit of that written argument. Although the function of the appel-
lant’s reply brief is to respond to the arguments and authority presented in
the appellee’s brief, that function does not include raising an entirely new
claim of error.’’ (Internal quotation marks omitted.) SS–II, LLC v. Bridge
Street Associates, 293 Conn. 287, 302, 977 A.2d 189 (2009).
13
Section 8-3 (4) of the Connecticut Code of Evidence provides: ‘‘A state-
ment of the declarant’s then-existing mental or emotional condition, includ-
ing a statement indicating a present intention to do a particular act in the
immediate future, provided that the statement is a natural expression of
the condition and is not a statement of memory or belief to prove the fact
remembered or believed.’’
14
‘‘The rules of evidence are somewhat relaxed in trials having to do with
a determination of custody of [or visitation with] an infant where it is
necessary to learn of the child’s psychology and preferences. Therefore it
is sometimes pertinent to bring to the court’s knowledge the temperament,
disposition and reactions of the child by testimony that borders upon hearsay
in that it embraces a recital of the child’s remarks. Such testimony, however,
is not strictly hearsay because the objective and the result are to look into
the child’s mind and not to establish the truth or falsity of other matters set
up as facts.’’ (Internal quotation marks omitted.) Gennarini v. Gennarini, 2
Conn. App. 132, 139–40, 477 A.2d 674 (1984); see also C. Tait & E. Prescott,
Connecticut Evidence (5th Ed. 2014) § 8.9 (declarations of implied state of
mind of speaker as exception to hearsay rule).
15
The plaintiff testified that she had placed the child in his room for a
time-out for being disrespectful and that after the child calmed down, she
called the defendant to explain what had occurred and then gave the phone
to the child, who then gave the defendant an explanation similar to hers.
She denied any physical or verbal abuse of the child.
16
In Brody, the problem was not that the court was silent about what
burden of proof it had applied when hearing an indirect civil contempt
proceeding; rather, the problem in that case was that the court applied an
incorrect standard of proof, the fair preponderance of the evidence standard.
Brody v. Brody, supra, 315 Conn. 315.
17
In his brief, the defendant’s second claim is stated as follows: ‘‘The trial
court never established the standard of proof applicable to the evidence
offered on plaintiff’s motion for contempt.’’
18
See also footnote 1 of this opinion addressing the defendant’s failure
to comply with Practice Book § 64-1 (a) by seeking a signed transcript or
a written memorandum of decision from the trial court.
19
Practice Book § 23-20 provides: ‘‘No person shall continue to be detained
in a correctional facility pursuant to an order of civil contempt for longer
than thirty days, unless at the expiration of such thirty days such person
is presented to the judicial authority. On each such presentment, the contem-
nor shall be given an opportunity to purge himself or herself of the contempt
by compliance with the order of the judicial authority. If the contemnor
does not so act, the judicial authority may direct that the contemnor remain
in custody under the terms of the order of the judicial authority then in
effect, or may modify the order if the interests of justice so dictate.’’
20
If the $500 fine was intended to be payable to the state to vindicate the
authority of the court, it would have been improper because it would only
be ‘‘consistent with . . . punitive fines levied in criminal [not civil] contempt
. . . .’’ Board of Education v. Shelton Education Assn., 173 Conn. 81, 85,
376 A.2d 1080 (1977). Furthermore, such a fine only could be imposed
pursuant to a nonsummary criminal contempt proceeding initiated pursuant
to Practice Book §§ 1-17 and 1-18. See generally State v. Murray, 225 Conn.
355, 361–62, 623 A.2d 60, cert. denied, 510 U.S. 821, 114 S. S. Ct. 78, 126 L.
Ed. 2d 46 (1993). Practice Book § 1-17 provides, in relevant part, that ‘‘[t]he
judicial authority should defer criminal contempt proceedings when . . .
(3) the misconduct did not occur in the presence of the court . . . .’’ A
criminal contempt deferred under § 1-17 must be prosecuted by means of
an information. The judicial authority may, either upon its own order or
upon the request of the prosecuting authority, issue a summons or an arrest
warrant for the accused. The case then proceeds as any other criminal
prosecution. See Practice Book § 1-18.
21
An award of court costs plus reasonable attorney’s fees also has been
viewed in the context of an indirect civil contempt proceeding as a proper
remedial form of compensation consisting of actual losses suffered by a
plaintiff as the result of contumacious conduct on the part of the defendant.
See DeMartino v. Monroe Little League, Inc., supra, 192 Conn. 280.
22
Although the defendant claims that the award of marshal fees to the
plaintiff was improper, he has failed to adequately brief this claim. Instead,
he focuses his analysis only on the propriety of the attorney’s fees award. We,
therefore, consider the claim as to the award of the marshal’s fee abandoned.
23
General Statutes § 46b-62 (a) provides in relevant part: ‘‘In any proceed-
ing seeking relief under the provisions of this chapter . . . the court may
order either spouse . . . to pay the reasonable attorney’s fees of the other
in accordance with their respective financial abilities and the criteria set
forth in section 46b-82. . . .’’