Mekrut v. Suits

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ANDREA MEKRUT v. MICHAEL SUITS
(AC 34880)
DiPentima, C. J., and Robinson and Mihalakos, Js.*
Argued November 13, 2013—officially released January 28, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Calmar, J. [dissolution judgment]; Morgan,
J. [motions for contempt, modification]; Abrams, J.
[motion for contempt].)
Richard F. Paladino, for the appellant (defendant).
Howard M. Gould, with whom was Elizabeth R.
Woodhull, for the appellee (plaintiff).
Opinion
MIHALAKOS, J. The defendant, Michael Suits,
appeals from various postjudgment orders following
the dissolution of his marriage to the plaintiff, Andrea
Mekrut. He first challenges the judgment of the trial
court granting the plaintiff’s first postjudgment motion
for contempt for failure to pay alimony and denying
the defendant’s first postjudgment motion to modify
his alimony obligation, claiming that the court erred in
(1) finding that the defendant’s failure to allocate a
sufficient amount of his severance funds toward his
alimony obligation was wilful contempt, and (2) failing
to reduce the defendant’s alimony obligation in light of
a substantial change in his financial circumstances. The
defendant also challenges the judgment of the trial court
granting the plaintiff’s second motion for contempt,
claiming that the trial court deprived him of due process
in refusing to conduct an evidentiary hearing on the
motion. Finally, the defendant claims that the court
erred in incarcerating the defendant without finding an
ability to pay. We affirm the trial court’s judgment with
respect to the first finding of contempt. We agree, how-
ever, with the defendant’s claim regarding the court’s
second finding of contempt and, accordingly, reverse
the judgment with respect to that claim.
The following facts and procedural history are rele-
vant to this appeal. On August 13, 2009, the parties
entered into a marital separation agreement, and the
court incorporated this agreement into its judgment
dissolving their marriage. The defendant was ordered
to pay weekly alimony in the amount of $550 until
August 13, 2012, and thereafter $450 until August 13,
2019. Both parties were ordered to contribute to the
cost of their daughter’s college expenses and to the
cost of preparing a qualified domestic relations order
(QDRO) regarding the division of retirement funds.
On September 6, 2011, the defendant’s employment
was terminated, whereupon he received a severance
payment in the net amount of $106,528.32. Initially, he
continued to pay his alimony obligation, but on Febru-
ary 24, 2012, he ceased payments. At the same time, he
spent more than $30,000 of his severance payment on
credit card debt, repaying a personal loan, and boat
slip fees. In March, 2012, the defendant began to receive
gross weekly unemployment compensation of $573.
The plaintiff filed a motion for contempt, arguing,
among other things, that the defendant was failing to
make alimony payments and had not contributed to
the preparation of a QDRO relating to the division of
retirement funds. The defendant filed a motion for mod-
ification, requesting a decrease in his alimony obligation
on the basis of a substantial change in the financial
circumstances of both the defendant and the plaintiff.
On May 21, 2012, a hearing was held on both motions.
On June 25, 2012, the court, Morgan, J., granted the
plaintiff’s motion for contempt in part, finding that the
defendant owed $8415 in alimony and deeming his fail-
ure to pay to be wilful in that he was capable of paying
his obligation with his severance funds but chose to
allocate them elsewhere. The court also found that the
defendant failed to comply with his obligation to con-
tribute to the preparation of a QDRO, but found that
the noncompliance was not wilful. At the same time, the
court denied the defendant’s motion for modification,
finding that the defendant had failed to meet his burden
of showing a substantial change in circumstances that
was not caused by his own culpable conduct. The court
ordered the defendant to pay the owed alimony, $600
for the preparation of a QDRO, and $2500 in attorneys’
fees. The defendant filed a motion to reargue, which
subsequently was denied. He then filed the present
appeal.
On July 17, 2012, while the appeal was pending, the
plaintiff filed a second motion for contempt, arguing
that the defendant had continued his failure to pay
alimony. On August 3, 2012, the defendant filed a second
motion for modification, again requesting a decrease
in his alimony obligation on the basis of a substantial
change in the financial circumstances of the parties.
On August 13, 2012, a hearing was held on the two
motions. At the hearing, the defendant requested an
evidentiary hearing on the motions, but the court,
Abrams, J., elected to decide the matter without further
proceedings. On August 17, 2012, the court granted the
plaintiff’s motion for contempt and ordered the defen-
dant to pay all arrearages in full by August 27, 2012,
or face incarceration. The court did not address the
defendant’s motion for modification. On August 27,
2012, the defendant, having failed to pay, was ordered
incarcerated with a purge amount set for $16,460, the
amount owed for the previous contempt plus additional
alimony owed since that finding. The defendant
amended his appeal to include claims regarding this
second finding of contempt. Additional facts will be set
forth as necessary.
I
On appeal, the defendant first challenges the trial
court’s judgment granting the plaintiff’s first postjudg-
ment motion for contempt for failure to pay alimony
and denying the defendant’s first postjudgment motion
to modify his alimony obligation. Specifically, he claims
that the court erred in (1) finding that the defendant’s
failure to allocate a sufficient amount of his severance
funds toward his alimony obligation was wilful con-
tempt, and (2) failing to reduce the defendant’s alimony
obligation in light of a substantial change in his financial
circumstances. We disagree.
A
We first consider the trial court’s finding that the
defendant’s failure to pay alimony amounted to wilful
contempt. ‘‘[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 sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.’’
(Citations omitted.) In re Leah S., 284 Conn. 685, 693–
94, 935 A.2d 1021 (2007).
‘‘A finding of contempt is a question of fact, and our
standard of review is to determine whether the court
abused its discretion in [finding] that the actions or
inactions of the [party] were in contempt of a court
order. . . . We review the court’s factual findings in
the context of a motion for contempt to determine
whether they are clearly erroneous. . . . A factual find-
ing is clearly erroneous when it is not supported by
any evidence in the record or when there is evidence
to support it, but the reviewing court is left with the
definite and firm conviction that a mistake has been
made. . . . 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 retry the facts or pass on the credibility
of the witnesses. . . .
‘‘[A] court may not find a person in contempt without
considering the circumstances surrounding the viola-
tion to determine whether such violation was wilful.
. . . [A] contempt finding is not automatic and depends
on the facts and circumstances underlying it.’’ (Cita-
tions omitted; internal quotation marks omitted.) Dick-
inson v. Dickinson, 143 Conn. App. 184, 188–89, 68
A.3d 182 (2013). ‘‘[I]t is well settled that the inability
of [a] defendant to obey an order of the court, without
fault on his part, is a good defense to the charge of
contempt . . . . The contemnor must establish that he
cannot comply, or was unable to do so. . . . It is [then]
within the sound discretion of the court to deny a claim
of contempt when there is an adequate factual basis to
explain the failure.’’ (Citation omitted; internal quota-
tion marks omitted.) Ahmadi v. Ahmadi, 294 Conn.
384, 398, 985 A.2d 319 (2009). ‘‘Whether [a party] estab-
lishe[s] [an] inability to pay [an] order by credible evi-
dence is a question of fact.’’ Id., 397.
In the present case, it is undisputed that the alimony
order was clear and unambiguous and, therefore, our
analysis is directed at whether the court’s finding of
wilful contempt was an abuse of discretion. In so find-
ing, the court determined that the defendant, for a
period of approximately fourteen weeks, had failed to
comply with the court order requiring him to make
weekly alimony payments. The court found that the
defendant had an ability to comply with the order, in
light of the large lump sum he had received only months
prior to ceasing payment, but wilfully chose to prioritize
other financial obligations. The defendant has failed to
produce any viable argument as to why these factual
findings should be disturbed.
As the court correctly noted, the fact that the defen-
dant had other financial obligations did not excuse him
from complying with a clear court order. See Turgeon
v. Turgeon, 190 Conn. 269, 284, 460 A.2d 1260 (1983)
(upholding finding of contempt where contemnor chose
to pay Internal Revenue Service debt over paying ali-
mony obligation). The court’s ruling did not, as the
defendant suggests, require him to have allocated his
entire severance package to alimony payments. Rather,
he merely was compelled to budget those funds, and
the unemployment compensation that he later began
to receive, in a way that allowed him to comply with the
court’s order. Despite the defendant’s protests, doing so
would not have required any speculation on his part,
as the alimony order clearly set forth the weekly allot-
ments necessary for compliance.
B
Next, we consider the defendant’s claim that the
court erred in failing to reduce the defendant’s obliga-
tion in light of a substantial change in his financial
circumstances. ‘‘Trial courts have broad discretion in
deciding motions for modification.’’ (Internal quotation
marks omitted.) Shamitz v. Taffler, 145 Conn. App. 132,
138, 75 A.3d 62 (2013). ‘‘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 in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action.’’ (Internal
quotation marks omitted.) Id., 137–38.
‘‘[W]hen presented with a motion for modification, a
court must first determine whether there has been a
substantial change in the financial circumstances of
one or both of the parties.’’ (Internal quotation marks
omitted.) Olson v. Mohammadu, 310 Conn. 665, 673,
A.3d (2013). ‘‘[T]he party seeking the modification
bears the burden of demonstrating that such a change
has occurred.’’ (Internal quotation marks omitted.) Id.,
672. ‘‘[I]n order to meet the threshold of a substantial
change in circumstances, the alleged inability to pay
must be excusable and not brought about by the defen-
dant’s own fault.’’ (Internal quotation marks omitted.)
Id., 674. ‘‘[I]f a party’s culpable conduct causes an inabil-
ity to pay an alimony award . . . then the threshold
question of whether a substantial change of circum-
stances exists is not met.’’ (Emphasis omitted; internal
quotation marks omitted.) Id., 677.
Here, the defendant claims that the court did not
resolve the threshold issue of whether a substantial
change in financial circumstances had occurred. On the
contrary, the court expressly found that the defendant
had not met his burden of establishing a substantial
change in circumstances because the change was
caused by the defendant’s culpable conduct in prema-
turely spending his severance funds. As a determination
of culpability is factual in nature, we defer to the court’s
finding unless it is clearly erroneous. See Olson v.
Mohammadu, supra, 310 Conn. 684 (‘‘if a party’s volun-
tary action gives rise to the alleged substantial change
in circumstances warranting modification, the [trial]
court must assess the motivations underlying the volun-
tary conduct in order to determine whether there is
culpable conduct foreclosing a threshold determination
of a substantial change in circumstances’’ [emphasis in
original]). The defendant has failed to identify anything
in the record that gives us reason to upset the court’s
finding of culpability, and, thus, we conclude that the
court properly denied the defendant’s motion for modi-
fication.
II
A
As to the second finding of contempt, the defendant
claims that he was deprived of due process when the
court refused to conduct an evidentiary hearing on the
motion. We agree and, accordingly, reverse the court’s
judgment with respect to its granting the second motion
for contempt.
As set forth previously, we review a judgment of
contempt of a clear and unambiguous court order under
an abuse of discretion standard. ‘‘A finding of . . . con-
tempt [occurring outside the presence of the court]
must be established by sufficient proof that is premised
on competent evidence presented to the trial court and
based on sworn testimony. . . . A trial-like hearing
should be held if issues of fact are disputed.’’ (Emphasis
omitted; internal quotation marks omitted.) Kelly v.
Kelly, 54 Conn. App. 50, 59, 732 A.2d 808 (1999). ‘‘Due
process of law requires that one charged with contempt
of court be advised of the charges against him, have a
reasonable opportunity to meet them by way of defense
or explanation, have the right to be represented by
counsel, and have a chance to testify and call other
witnesses in his behalf, either by way of defense or
explanation. . . . Because the inability of [a party] to
obey an order of the court, without fault on his part,
is a good defense to a charge of contempt . . . [the
party] ha[s] the right to demonstrate that his failure to
comply with the order of the trial court was excusable.’’
(Citations omitted; internal quotation marks omitted.)
Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111(1994).
In the present case, the court was presented with a
second motion for contempt filed by the plaintiff and
a second motion for modification filed by the defendant.
The defendant repeatedly requested an evidentiary
hearing to present evidence in support of his position.
In response, the court informed the parties that the
matter would be decided ‘‘on the papers,’’ presumably
relying on the record from the court’s previous orders
granting the plaintiff’s first motion for contempt and
denying the defendant’s first motion for modification.
Shortly thereafter, without any evidentiary hearing tak-
ing place, the court issued an order granting the second
motion for contempt and requiring the defendant to pay
the owed alimony within ten days or face incarceration.
Although the defendant was afforded an opportunity to
testify at the subsequent hearing at which the defendant
was ordered incarcerated, the second finding of con-
tempt had already been made and that hearing con-
cerned only whether the defendant had paid the alimony
within ten days as ordered. Thus, the defendant never
was afforded an evidentiary hearing on the second
motion for contempt itself.1 The court’s refusal to hold
such a hearing was a violation of the defendant’s due
process guarantees and, therefore, amounted to an
abuse of discretion on the part of the court. See Bryant
v. Bryant, supra, 228 Conn. 637–38 (holding that court’s
failure to hold evidentiary hearing on motion for con-
tempt violated due process rights of party requesting
hearing); see also Kelly v. Kelly, supra, 54 Conn. App.
60 (holding that court’s reliance on record of previously
decided postjudgment motions in family case was insuf-
ficient to satisfy due process without new evidentiary
hearing). Accordingly, the judgment granting the plain-
tiff’s second motion for contempt is reversed.
B
Finally, the defendant claims that the court erred in
incarcerating the defendant without finding an ability
to pay. As we have already concluded that the judgment
of contempt for which the defendant was incarcerated
is reversed on due process grounds, we need not con-
sider whether the court, prior to granting the second
motion for contempt, made the necessary finding that
the defendant was able to comply with the court’s previ-
ous order. We note, however, that we can offer no relief
for the defendant’s previous incarceration, as he has
since been released. See Papa v. New Haven Federation
of Teachers, 186 Conn. 725, 732 n.6, 444 A.2d 196 (1982)
(‘‘[a]lthough the [party’s] incarceration, if erroneous,
can not now be undone, the payment of the fines, if
erroneous, can be’’).
We conclude that the court, Morgan, J., acted prop-
erly in granting the plaintiff’s first motion for contempt
and denying the defendant’s first motion for modifica-
tion. The court, Abrams, J., erred, however, in refusing
to hold an evidentiary hearing on the plaintiff’s second
motion for contempt.
The judgment is reversed only with respect to the
order granting the plaintiff’s July 17, 2012 motion for
contempt, and the case is remanded with direction to
hold an evidentiary hearing on that motion. The judg-
ment is affirmed in all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date or oral argument.
1
The defendant’s motion for modification was decided a month later by
the court, Domnarski, J. Our Supreme Court expressly has held that motions
for contempt and motions for modification relating to alimony need not be
decided concurrently and, therefore, the trial court did not act improperly
in considering the motion for contempt alone. Bryant v. Bryant, supra, 228
Conn. 638–40.