Nuzzi v. Nuzzi

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CYNTHIA E. NUZZI v. CARMINE NUZZI
(AC 36496)
Lavine, Sheldon and Mullins, Js.
Argued January 11—officially released April 19, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Tierney, J. [dissolution judgment];
S. Richards, J. [motion for modification, motion for
contempt].)
Kevin F. Collins, for the appellant (defendant).
Norman A. Roberts II, with whom, on the brief, was
Anthony L. Cenatiempo, for the appellee (plaintiff).
Opinion
LAVINE, J. This appeal presents us with ‘‘procedur-
ally dysfunctional matrimonial litigation . . . .’’
Grimm v. Grimm, 276 Conn. 377, 379, 886 A.2d 391(2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164
L. Ed. 2d 815 (2006). The defendant, Carmine Nuzzi,
appeals from the judgment of the trial court in which
the court denied his postdissolution motion to modify
his unallocated alimony and child support obligation
(unallocated support) to the plaintiff, Cynthia E. Nuzzi,
and found him in contempt. On appeal, the defendant
claims that the court abused its discretion by (1) deny-
ing his motion to modify his unallocated support order
and (2) finding him in contempt. We affirm, in part, and
reverse, in part, the judgment of the trial court.
The following procedural history provides the con-
text for the issues in this appeal. The plaintiff com-
menced the underlying action for dissolution of her
marriage to the defendant in January, 2006.1 On June
13, 2007, following an uncontested hearing, the court,
Tierney, J., rendered a judgment of dissolution that
incorporated the parties’ separation agreement
(agreement).2 Almost immediately following the judg-
ment of dissolution, the parties began filing postdissolu-
tion motions, which concerned their various
nonsupport obligations, modification of the parenting
plan, and other matters related to their then minor
children.
On May 12, 2008, the defendant filed the subject
motion to modify, which is number 173 on the trial
court docket. In the motion to modify, the defendant
recited §§ 8.3 and 8.4 of the agreement; see footnote 2
of this opinion; and petitioned ‘‘the court for relief from
his alimony payments, and request[ed] the court to take
a second and de novo look at the financial state of the
parties, and set a revised order effective June 13, 2008,
relative to alimony and/or child support.’’3 On May 24,
2008, a state marshal served the plaintiff with a copy
of the motion to modify and a notice and order to
appear. The notice indicated a hearing on the motion
to modify was to be held on June 23, 2008, at 9:30 a.m.
The plaintiff did not file an objection to the motion to
modify, but the hearing did not take place. The plaintiff
instead initiated discovery as to the defendant’s assets.4
Although the motion to modify was not heard or ruled
on by the court, the defendant unilaterally reduced his
monthly payments to the plaintiff from $3000 per month
to $1200 per month. Almost four years passed by.
On May 2, 2012, the parties appeared before the court,
Shay, J., at which time the court accepted the parties’
stipulations as to certain moneys the plaintiff owed the
defendant.5 Motion to modify number 173 also appeared
on the short calendar that day. Judge Shay inquired as
to whether the motion to modify had been served in
order to consider whether any modification should
apply retroactively.6 Thereafter, confusion ensued.
Counsel for the parties were under the misapprehen-
sion that number 173 had been filed on behalf of the
plaintiff by her prior counsel. After reviewing the file,
however, Judge Shay informed the parties that number
173 was the defendant’s motion to modify. Both counsel
reviewed the court’s file and learned that the plaintiff, in
fact, never had filed a motion to modify the unallocated
support order. Counsel who was then representing the
plaintiff stated that she would be filing a motion for
contempt against the defendant for his failure to pay
the plaintiff unallocated support in accordance with
the agreement.
The subsequent colloquy between the court and coun-
sel focused on the general practice of family courts to
hear motions to modify support and related motions for
contempt simultaneously.7 Although Judge Shay offered
the defendant’s counsel the opportunity to go forward
with his motion to modify, counsel, after consulting
with opposing counsel, elected not to proceed on the
motion to modify that day. Judge Shay observed that
the motion to modify was four years old and asked,
‘‘why should the court even entertain a four year old
motion.’’
On May 3, 2012, the plaintiff filed a motion for con-
tempt (number 207), alleging that the defendant had
failed to pay her unallocated support in accordance
with the agreement and had failed to provide her with
the documents necessary to calculate his earned
income. In her contempt motion, the plaintiff asked the
court to find the defendant in contempt and order him
to pay the cost of bringing the motion for contempt,
including attorney’s fees, to pay her the amount he
owed her under § 8.1 of the agreement, and to provide
her with monthly calculations and redacted 1099 forms.
The parties appeared before the court, S. Richards,
J., on March 5 and 6, 2013, for a hearing on the defen-
dant’s motion to modify and the plaintiff’s motion for
contempt. Following the hearing, each of the parties
filed a memorandum of law. On October 1, 2013, Judge
Richards issued a memorandum of decision in which
she denied the defendant’s motion to modify, granted
the plaintiff’s motion for contempt, and imposed sanc-
tions on the defendant.8 In sanctioning the defendant,
the court ordered the defendant to pay the plaintiff
$210,640.80, which represented the amount of alimony
for which he was in arrears pursuant to § 8.1 of the
agreement. The court also awarded the plaintiff reason-
able attorney’s fees and costs.9 The defendant appealed.
‘‘As a general matter, [a]n 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.’’ (Internal quotation marks
omitted.) Nassra v. Nassra, 139 Conn. App. 661, 666,
56 A.3d 970 (2012).
I
The defendant first claims that the court improperly
denied his motion to modify on the grounds of staleness
and unclean hands. We agree. By denying the defendant
a de novo hearing with regard to his unallocated support
obligation, the court ignored the parties’ agreement that
was incorporated into the dissolution judgment, which
required a de novo review of the defendant’s support
obligation at the end of a one year grace period.
The following additional facts and procedural history
are relevant to our resolution of the defendant’s claim.
In the body of her memorandum of decision, Judge
Richards began by summarizing §§ 8.1, 8.2, and 8.3 of
the agreement, but not § 8.4.
The court found that on May 12, 2008, the defendant
had filed a motion for modification of alimony,
requesting a de novo hearing pursuant to the terms of
the agreement. The defendant sought ‘‘either a termina-
tion of alimony and an order of child support or a
downward modification of alimony with an order of
child support along with a retroactive order.’’ Also, the
parties had appeared before Judge Shay in May, 2012,
at which time Judge Shay informed the parties that
motion number 173 on which the plaintiff intended to
proceed was not her motion but the defendant’s motion
to modify. The following day, the plaintiff filed a motion
for contempt.
Judge Richards ruled on the motion to modify pursu-
ant to the plaintiff’s contention that the motion was
stale and, therefore, never addressed the merits of the
motion to modify. In determining whether the motion
to modify was stale, the court relied on Practice Book
§ 25-34 (e), which provides in relevant part: ‘‘Unless for
good cause shown, no motion may be reclaimed after
a period of three months from the date of filing. . . .’’
‘‘Whether a party has shown good cause in not pursuing
a motion within the three month limitation is a question
of fact for the trial court.’’ Larson v. Larson, 89 Conn.
App. 57, 69, 872 A.2d 912, cert. denied, 274 Conn. 915,
879 A.2d 892 (2005).
Although each party argued that the other was guilty
of laches and unclean hands, the court concluded that
the defendant had not met his burden of proving good
cause for failing to secure a hearing on his motion to
modify prior to March, 2013. Moreover, the court found
that the defendant failed to offer specific evidence of
the activities in which he actively had engaged with
opposing counsel in pursuit of having the motion to
modify heard. The court also found that, although the
defendant argued that §§ 8.1 and 8.3 of the agreement
are ambiguous, he testified that he was aware of his
obligations pursuant to the judgment of dissolution and
that despite having filed the motion to modify, he unilat-
erally had reduced the amount of his monthly payments
to the plaintiff before the court held a de novo hearing
on his motion to modify. The court further found that
the parties intended that, following a one year grace
period, the defendant was to pay the plaintiff 40 percent
of the first $250,000 of his earned income and that each
party had the right to seek a de novo review by the
court after the one year grace period had expired.
In addition, the court found that the defendant did not
come into court with ‘‘clean hands.’’ The court reasoned
that the defendant had petitioned the court to use its
equitable powers to afford him relief by either terminat-
ing or modifying his support obligation retroactively,
but he decided to substitute his discretion for that of
the court in contradiction of the expressed terms of
the agreement. The defendant engaged in self-help to
reduce his support obligation to $1200, the sum he
deemed to be in accord with the child support guide-
lines of July, 2008. In conclusion, the court determined
that the defendant’s motion to modify was stale and no
longer pending before the court and, therefore, denied
the motion to modify.
The court grounded its decision that the motion to
modify was stale on Practice Book § 25-34 (e), which
provides in relevant part: ‘‘Failure to appear and present
argument on the date set by the judicial authority shall
constitute a waiver of the right to argue unless the
judicial authority orders otherwise. Unless for good
cause shown, no motion may be reclaimed after a period
of three months from the date of filing. . . .’’ We dis-
agree that § 25-34 (e) is controlling under the circum-
stances of the present case. Whether the court should
have considered the merits of the motion to modify is
controlled by the agreement between the parties.
Courts are to interpret a separation agreement incor-
porated into a dissolution decree pursuant to the gen-
eral principles governing contract construction. See
Isham v. Isham, 292 Conn. 170, 180, 972 A.2d 228 (2009).
‘‘A contract must be construed to effectuate the intent
of the parties, which is determined from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the trans-
action. . . . [T]he intent of the parties is to be ascer-
tained by a fair and reasonable construction of the
written words and . . . the language used must be
accorded its common, natural, and ordinary meaning
and usage where it can be sensibly applied to the subject
matter of the contract. . . . Where the language of the
contract is clear and unambiguous, the contract is to be
given effect according to its terms.’’ (Internal quotation
marks omitted.) Eckert v. Eckert, 285 Conn. 687, 692,
941 A.2d 301 (2008).
The case of Zahringer v. Zahringer, 124 Conn. App.
672, 6 A.3d 141 (2010), also concerned a separation
agreement in which the parties constructed their
agreement to provide for a ‘‘second look at alimony,’’
any change as a result of which was to be made retroac-
tive to a certain date. Id., 687. This court recognized
that in crafting a separation agreement, parties may
draft an agreement that deviates from current case law.
Id., 688. This court also concluded that the trial court
may consider a motion to modify that is heard by the
court more than three months after it is filed. In Zah-
ringer, the plaintiff’s 1999 motion for modification and
September, 2003 motion for modification were heard
on various days in 2007 and 2008. Id., 689 (retroactive
award may take into account long time period between
date of filing motion to modify and date motion heard);
see also Olson v. Mohammadu, 310 Conn. 665, 686 n.16,
81 A.3d 215 (2013) (same).
In the present case, § 8.1 of the agreement sets forth
the amount of unallocated alimony and child support
the defendant was to pay the plaintiff, and the manner
in which the amount was to be calculated. Section 8.3
provides, however, that at the time the parties were
divorcing, the parties recognized that the defendant was
starting a new business and, therefore, incorporated a
provision into the agreement to take that circumstance
into consideration. Section 8.3 states that ‘‘[n]otwith-
standing the provisions of Paragraph 8.1, the parties
acknowledge that the [defendant] is in the process of
starting a new business and that his current earned
income is set forth on his financial affidavit. Accord-
ingly, the [defendant] shall pay to the [plaintiff], for a
period of one (1) year only, ‘minimum payments’ of
three thousand ($3,000) dollars per month commencing
on the first day of the first month after the execution
of this Agreement and concluding 12 months thereafter.
After the one (1) year period of time has expired, there
shall be a de novo review, without the necessity to prove
a substantial change in circumstances as described in
paragraph 8.4, by the Superior Court at Stamford to
determine the amount of alimony, if any, to be paid by
the [defendant] based upon his then current earned
income.’’10 (Emphasis added.)
Section 8.4 of the agreement states: ‘‘The [defendant]
and [plaintiff] shall have the right to petition the Supe-
rior Court at Stamford, after the one (1) year period as
described above without a showing of a substantial
change of circumstances, to terminate alimony and
order child support only or modify the calculation of
the amount of unallocated alimony and child support
that shall be paid. . . . In the event the current unallo-
cated support order is terminated and no alimony pay-
ments are ordered, the court shall determine the
amount of child support to be paid.’’ (Emphasis added.)
Under the terms of §§ 8.3 and 8.4 of the agreement,
the defendant was entitled to file a motion to modify
at the end of the first year and entitled to receive de
novo review by the Superior Court of his unallocated
support obligation. The court found that the defendant
timely filed the subject motion to modify seeking the
permitted de novo review of the amount of unallocated
support he was to pay.11 The plaintiff did not object to
the motion to modify. The hearing on the motion did
not take place, and the plaintiff instituted discovery
regarding the defendant’s financial assets. Our review
of the court file discloses that discovery continued well
into 2009. Even if we were to conclude that Practice
Book § 25-34 were controlling, which we do not, there
was good cause for the motion not to have been
reclaimed within three months of its filing due to ongo-
ing discovery and other issues between the parties. See
Cannon v. Cannon, 109 Conn. App. 844, 851, 953 A.2d
694 (2008) (over three year period more than seventy
motions filed, counsel not inattentive to case).
The defendant also claims that the court abused its
discretion by denying his motion to modify after finding
him guilty of unclean hands. ‘‘A trial court may award
alimony as part of the court’s general equitable power.’’
Lord v. Lord, 44 Conn. App. 370, 374, 689 A.2d 509, cert.
denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied,
522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125 (1998).
‘‘[T]he power to act equitably is the keystone to the
court’s ability to fashion relief in the infinite variety of
circumstances that arise out of the dissolution of a
marriage. . . . These equitable powers give the court
the authority to consider all the circumstances that may
be appropriate for a just and equitable resolution of the
marital dispute.’’ (Citation omitted; internal quotation
marks omitted.) Porter v. Porter, 61 Conn. App. 791,
797, 769 A.2d 725 (2001).
‘‘[A]pplication of the doctrine of unclean hands rests
within the sound discretion of the trial court. . . . The
exercise of [such] equitable authority . . . is subject
only to limited review on appeal. . . . The only issue on
appeal is whether the trial court has acted unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
[the trial court’s] action. . . . Whether the trial court
properly interpreted the doctrine of unclean hands,
however, is a legal question distinct from the trial
court’s discretionary decision whether to apply it.’’
(Citations omitted; internal quotation marks omitted.)
Thompson v. Orcutt, 257 Conn. 301, 308, 777 A.2d
670 (2001).
‘‘The question of whether the clean hands doctrine
may be applied to the facts found by the court is a
question of law. . . . We must therefore engage in a
plenary review to determine whether the court’s conclu-
sions were legally and logically correct and whether
they are supported by the facts appearing in the record.’’
(Citation omitted.) McKeever v. Fiore, 78 Conn. App.
783, 787–88, 829 A.2d 846 (2003).
‘‘Our jurisprudence has recognized that those seeking
equitable redress in our courts must come with clean
hands. The doctrine of unclean hands expresses the
principle that where a [party] seeks equitable relief, he
must show that his conduct has been fair, equitable
and honest as to the particular controversy in issue.
. . . For a complainant to show that he is entitled to
the benefit of equity he must establish that he comes
into court with clean hands. . . . The clean hands doc-
trine is applied not for the protections of the parties
but for the protection of the court. . . . It is applied
. . . for the advancement of right and justice. . . . The
party seeking to invoke the clean hands doctrine to bar
equitable relief must show that his opponent engaged
in wilful misconduct with regard to the matter in litiga-
tion. . . . The trial court enjoys broad discretion in
determining whether the promotion of public policy
and the preservation of the courts’ integrity dictate that
the clean hands doctrine be invoked.’’ (Citation omitted;
internal quotation marks omitted.) Ridgefield v. Eppol-
iti Realty Co., 71 Conn. App. 321, 334–35, 801 A.2d 902,
cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).
In the present case, each party charged the other
with unclean hands. The court found that, although the
defendant filed the motion to modify in accordance
with the agreement, he had resorted to self-help to
modify his support obligation and had been paying the
plaintiff what he thought were his child support obliga-
tions since July, 2008. The plaintiff, however, did not
object to the defendant’s motion to modify, but initiated
discovery proceedings to examine the defendant’s
assets. Moreover, although the defendant began to pay
the plaintiff only $1200 in July, 2008, the plaintiff never
filed a motion for contempt until May, 2012, almost four
years later. In the meantime, the defendant settled a
lawsuit and paid the plaintiff a large percentage of the
proceeds. When the parties appeared before Judge Shay
on May 2, 2012, they stipulated as to the amount of
money the plaintiff owed the defendant and that the
plaintiff should not be found in contempt. The record
indicates, therefore, that neither party strictly had
adhered to his or her obligations under the agreement.
It appears that there is soil on the hands of each of
the parties, the defendant’s for using self-help and the
plaintiff’s for sitting on her right to file a motion for
contempt for almost four years. For whatever reason,
the motion to modify did not come before the Superior
Court until May 2, 2012.12 The defendant, however, took
matters into his own hands and began paying the plain-
tiff $1200 per month beginning in July, 2008. For her
part, the plaintiff never filed a motion for contempt to
enforce the agreement until the day after the parties
appeared before Judge Shay, who suggested that the
defendant’s motion to modify was stale. Judge Richards
picked up on the staleness issue raised by Judge Shay
and found that there was no good cause for the defen-
dant not to have had the motion heard before the March,
2013 hearing. She also concluded that because the
defendant had used self-help to reduce his support pay-
ments, he had unclean hands. Judge Richards did not
address the plaintiff’s failure to file a motion for con-
tempt prior to May 3, 2012, or to exercise her own right
to ask the Superior Court to perform a de novo review of
the defendant’s unallocated support obligation. Judge
Richards concluded that the motion to modify was stale
and denied it.
Pursuant to §§ 8.3 and 8.4 of the agreement, both
parties were entitled to a de novo hearing to establish
the defendant’s support obligation after the first year
grace period. In failing to adjudicate the motion to mod-
ify pursuant to the agreement, the court failed to afford
the parties the benefit of the agreement they had
entered into at the time of the dissolution of their mar-
riage, and therefore abused its discretion by denying
the motion to modify without considering its merits.
We reverse the judgment with respect to the motion to
modify and remand the matter to the trial court for
further proceedings.
II
The defendant’s second claim is that the court abused
its discretion by finding him in contempt. We disagree
that the court abused its discretion by finding the defen-
dant in contempt but conclude that the sanction
imposed constituted an abuse of discretion.
The following facts are relevant to our resolution of
the defendant’s contempt claim. Judge Richards found
that June, 2008, was the last time the defendant had
paid the plaintiff $3000 in unallocated support and that
he had paid her only $1200 thereafter until the time of
the March, 2013 hearing. The defendant also admitted
that he had not provided the plaintiff with monthly
written calculations as to how he determined the
amount of his monthly support obligation, although he
acknowledged that the agreement required him to do
so. He testified that he had reduced his support payment
to $1200 per month because that was all he could afford
at the time in light of the income he generated from
his one and one-half year old business. The defendant
testified that it was not his intent to avoid paying the
plaintiff 40 percent of his earned income, but the court
found that none of the evidence in the record demon-
strated that he ever paid the plaintiff 40 percent of his
earned income. The court found that the defendant’s
testimony was contradicted by the financial evidence
in the record and that his testimony was not credible.
The court also found that the defendant had notice of
the court’s June 13, 2007 order regarding his unallocated
support obligation, that the order was clear and unam-
biguous, and that the defendant had failed to comply
with the court’s order by unilaterally reducing the sup-
port order to $1200 a month commencing in July, 2008,
and continuing until the time of the hearing. The court
noted that ‘‘[o]ur Supreme Court repeatedly has advised
parties against engaging in self-help and has stressed
that an order must be obeyed until it has been modified
or successfully challenged.’’ (Internal quotation marks
omitted.) Culver v. Culver, 127 Conn. App. 236, 242, 17
A.3d 1048, cert. denied, 301 Conn. 929, 23 A.3d 724(2011).
The court granted the plaintiff’s motion for contempt
and sanctioned the defendant. Using the formula in
§ 8.1 of the agreement, the court found that the defen-
dant owed the plaintiff unallocated support for the
period from June 1, 200813 through September 30, 2012,
in the amount of $210,064.80.14 The court ordered that
the defendant immediately pay the plaintiff $30,000
toward the arrearage. Within ten days the defendant
was to roll over to the plaintiff the entirety of his individ-
ual retirement account that had a present value of
approximately $96,521.46, thereby reducing his arrear-
age to $84,119.34. The court ordered the defendant to
pay the plaintiff the remaining arrearage at the expira-
tion of his unallocated alimony and child support obliga-
tion, or July 1, 2015, in equal monthly installments of
40 percent of his gross income until the arrearage was
paid in full. The defendant also was held responsible
for the plaintiff’s reasonable attorney’s fees and costs.
A
The defendant claims that the court improperly found
him in contempt. We disagree.
As previously stated, the defendant paid the plaintiff
$3000 per month in unallocated support for one year
following the dissolution of the parties’ marriage, as
required by § 8.3 of the agreement. Prior to the end of
the one year grace period, the defendant filed a motion
to modify his unallocated support obligation and had
it served with a notice of a hearing on the plaintiff. The
noticed hearing did not go forward in June, 2008. In July,
2008, the defendant began paying the plaintiff $1200 a
month in unallocated support. At the March, 2013 hear-
ing, the defendant testified that he resorted to self-help
to reduce his monthly support obligation, claiming that
$1200 was all he could afford to pay. The court found
the defendant’s testimony was not credible and found
him to be in contempt for unilaterally reducing his sup-
port payments in violation of the agreement and Judge
Tierney’s dissolution orders.
We begin with the general principles and the stan-
dards of review with respect to a trial court’s finding
of contempt. ‘‘Contempt is a disobedience to the rules
and orders of a court which has power to punish for
such an offense. . . . A contempt judgment cannot
stand when, inter alia, the order a contemnor is held
to have violated is vague and indefinite, or when the
contemnor, through no fault of his own, was unable
to obey the court’s order.’’ (Citation omitted; internal
quotation marks omitted.) Parisi v. Parisi, 315 Conn.
370, 379, 107 A.3d 920 (2015). The threshold question,
therefore, is ‘‘whether the underlying order constituted
a court order that was sufficiently clear and unambigu-
ous so as to support a judgment of contempt.’’ (Internal
quotation marks omitted.) Id., 380. This inquiry is a
legal one subject to de novo review. Id. If we conclude
that the underlying order was clear and unambiguous,
‘‘we must then determine whether the trial court abused
its discretion in issuing, or refusing to issue, a judgment
of contempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.’’
(Internal quotation marks omitted.) Id.
At the March, 2013 hearing the defendant claimed,
as he does on appeal, that §§ 8.3 and 8.4 of the
agreement are ambiguous. The trial court found, how-
ever, that the defendant knew and understood his unal-
located support obligation, i.e., he was to pay the
plaintiff $3000 a month for one year only and that a de
novo hearing was to be held before the court for the
purpose of modifying, terminating or setting the order.
The court also found that the defendant was not con-
fused about what the agreement required of him but
‘‘expressed in no uncertain terms that he believed he
should not pay the plaintiff any alimony.’’
On the basis of the evidence presented at the March,
2013 hearing, the court found that the defendant had
notice of the court’s June 13, 2007 order incorporated
in the judgment of dissolution. It also found that the
order was clear and unambiguous that the defendant
was to pay the plaintiff 40 percent of his earned income
up to $250,000 and 35 percent of his earned income
capped at $500,000 as unallocated support, except for
the one year grace period in which he was required to
pay her $3000 a month. The term of the unallocated
support was eight years unless otherwise modified or
terminated or set by the court at a de novo hearing at
the end of the one year grace period, and the defendant
was to provide the plaintiff with his monthly calculation
of his income. The defendant never provided the plain-
tiff with monthly calculations as to how he determined
his earned income, as required by the agreement. The
court, therefore, found that the defendant wilfully failed
to comply with the dissolution order by unilaterally
reducing his support payment to $1200 a month begin-
ning in June, 2008,15 and continuing until the time of
the hearing. The court found the defendant to be in
wilful contempt of Judge Tierney’s dissolution order.
‘‘A finding of contempt depends upon the facts and
circumstances surrounding it.’’ Dukes v. Durante, 192
Conn. 207, 228, 471 A.2d 1368 (1984). On the basis of
our review of the record and the facts found by the
court, we agree that the order was clear and unambigu-
ous, and we conclude that the court did not abuse its
discretion when it found the defendant to be in wilful
contempt of the dissolution order when he enlisted self-
help to reduce his support payments to the plaintiff in
July, 2008. ‘‘An order of the court must be obeyed until
it has been modified or successfully challenged.’’ (Inter-
nal quotation marks omitted.) Eldridge v. Eldridge, 244
Conn. 523, 530, 710 A.2d 757 (1998). Even if the terms
of the dissolution order were ambiguous, the appellate
courts of this state have held that a party may not resort
to self-help. See, e.g., Sablosky v. Sablosky, 258 Conn.
713, 720, 784 A.2d 890 (2001) (‘‘where there is an ambig-
uous term in a judgment, a party must seek a clarifica-
tion upon motion rather than resort to self-help’’). The
defendant’s claim, therefore, fails.
B
The defendant claims that the sanctions ordered by
the court constitute an abuse of discretion. We agree.
In 2013, when the court calculated the amount of unallo-
cated support the defendant owed the plaintiff, it failed
to consider § 8.3 of the agreement and determine de
novo the defendant’s unallocated support obligation.
Moreover, the court failed to find or consider that the
parties’ son had turned eighteen in 2011.16
The defendant’s claim requires us to determine
whether the court abused its discretion by concluding
that the defendant owed the plaintiff a support arrear-
age of $210,064.80 and whether that conclusion is sup-
ported by competent evidence. Fuller v. Fuller, 119
Conn. App. 105, 115, 987 A.2d 1040, cert. denied, 296
Conn. 904, 992 A.2d 329 (2010). ‘‘In a contempt proceed-
ing . . . a trial court has broad discretion to make
whole a party who has suffered as a result of another
party’s failure to comply with the court order.’’ (Internal
quotation marks omitted.) McGuire v. McGuire, 102
Conn. App. 79, 89, 924 A.2d 886 (2007).
‘‘In determining whether a trial court has abused its
broad discretion in domestic relations matters, 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 on this court unless they are clearly errone-
ous in light of the evidence and the pleadings in the
record as a whole. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port it . . . or when although there is evidence in the
record 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.) Buehler v. Buehler, 117 Conn. App.
304, 317–18, 978 A.2d 1141 (2009).
As stated previously, the parties entered into a sepa-
ration agreement that was incorporated into the judg-
ment of dissolution. The agreement included a
provision requiring the defendant to pay the plaintiff
unallocated child support and alimony for a term of
eight years. Section 8.1 of the agreement sets forth a
formula by which the defendant was to calculate his
support obligation. Notwithstanding § 8.1, the parties
considered that the defendant was starting a new busi-
ness and agreed to limit his monthly support payments
to $3000 per month for one year only. Section 8.3 of
the agreement states in relevant part: ‘‘After the one
(1) year period of time has expired, there shall be a de
novo review, without the necessity to prove a substan-
tial change in circumstances as described in paragraph
8.4, by the Superior Court at Stamford to determine the
amount of alimony, if any, to be paid by the [defendant]
based upon his then current earned income.’’ (Empha-
sis added.)
In the present case, the trial court did not consider
that the parties’ son turned eighteen in 2011, almost
two years prior to the March, 2013 hearing, a factor it
was required to consider when allocating the defen-
dant’s child support obligation.17 The court’s calculation
of the amount of unallocated support the defendant
owed the plaintiff was, therefore, incomplete.
As a general rule, appellate courts do not make credi-
bility determinations. ‘‘[I]t is within the province of the
trial court, when sitting as the fact finder, to weigh the
evidence presented and determine the credibility and
effect to be given the evidence. . . . Credibility must
be assessed . . . not by reading the cold printed
record, but by observing firsthand the witness’ conduct,
demeanor and attitude. . . . An appellate court must
defer to the trier of fact’s assessment of credibility
because [i]t is the [fact finder] . . . [who has] an oppor-
tunity to observe the demeanor of the witnesses and
the parties; thus [the fact finder] is best able to judge
the credibility of the witnesses and to draw necessary
inferences from them.’’ (Internal quotation marks omit-
ted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d
236 (2007).
The court determined that the defendant’s testimony
that he could not afford to pay the plaintiff unallocated
support pursuant to the agreement was not credible.
Although we may not second-guess the court’s credibil-
ity determination, we conclude that the court’s credibil-
ity finding as to the defendant’s ability to pay is subject
to mathematical scrutiny. The parties recognized that
in 2007 the defendant was starting a new business and
agreed that for one year, postdissolution, his unallo-
cated support obligation would be $3000 a month. The
defendant paid the plaintiff $3000 a month during the
first year for a total of $36,000, which is 40 percent of
$90,000. The court found that the defendant’s gross
income in 2008 was $47,600 and in 2009 it was $85,050.
The defendant, therefore, under § 8.1 of the agreement,
did not earn enough money in those years to require
that he pay the plaintiff $3000 a month. This circum-
stance calls into question the court’s finding that the
defendant’s testimony was not credible. The parties’
agreement perhaps anticipated that the defendant’s
earnings one year after the divorce might not be sub-
stantial when it provided that the parties had the right
to ask the court to conduct a de novo review of the
circumstances ‘‘to determine the amount of alimony, if
any, to be paid by the [defendant] based upon his then
current earned income.’’ See § 8.3 of the agreement.
In summary, the court improperly denied the defen-
dant’s motion to modify, and failed to conduct a de
novo review that took into consideration the defen-
dant’s financial circumstances at the end of the first
year, postdissolution. The court properly found the
defendant in contempt for reducing the amount of his
unallocated support, but abused its discretion by order-
ing sanctions pursuant to § 8.1 of the agreement without
conducting a de novo review.
The judgment is reversed only as to the denial of the
defendant’s motion to modify and the imposition of
sanctions against him, and the case is remanded for
further proceedings in accordance with this opinion.
The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The judgment file indicates that the parties were married on May 27,
1990, and that they are the parents of two now adult children. The parties’
son was born in 1993 and their daughter was born in 1997.
2
The portions of the separation agreement that are relevant to the present
appeal are §§ 8.1 through 8.4, which state:
‘‘8.1 The [defendant] shall pay to the [plaintiff] as unallocated alimony
and child support, on the first day of each month, as follows: [40] percent
of his earned income up to [$250,000] per annum, and [35] percent of his
earned income from [$250,000] to [$500,000] per annum, whereupon, the
amount of alimony shall be capped. The amount of the payments shall be
determined by the ‘gross earned income’ from the preceding month as
defined in paragraph 8.6.
‘‘8.2 The unallocated alimony and child support payments shall be made
until the first of the following events: the death of the [defendant], the death,
remarriage or cohabitation of the [plaintiff] pursuant to section 46b-86 (b)
of the Connecticut General Statutes or eight . . . years from the first pay-
ment. The term of the alimony shall be non-modifiable by the [defendant]
and [plaintiff].
‘‘8.3 Notwithstanding the provisions of Paragraph 8.1, the parties acknowl-
edge that the [defendant] is in the process of starting a new business and
that his current earned income is set forth on his financial affidavit. Accord-
ingly, the [defendant] shall pay to the [plaintiff], for a period of one . . .
year only, ‘minimum payments’ of [$3000] per month commencing on the first
day of the first month after the execution of this Agreement and concluding
[twelve] months thereafter. After the one . . . year period of time has
expired, there shall be a de novo review, without the necessity to prove a
substantial change in circumstances as described in paragraph 8.4, by the
Superior Court at Stamford to determine the amount of alimony, if any, to
be paid by the [defendant] based upon his then current earned income.
‘‘8.4 The [defendant] and [plaintiff] shall have the right to petition the
Superior Court at Stamford after the one . . . year period as described
above without a showing of a substantial change of circumstances, to termi-
nate alimony and order child support only or modify the calculation of the
amount of unallocated alimony and child support that shall be paid. By way
of example, if the [defendant’s] earned income is $0 to $60,000, either party
may petition to have the percentage changed, a fixed dollar amount estab-
lished, or that a party has a higher earning capacity warranting a higher or
lower payment whether by a percentage or a fixed payment or that no
alimony be paid. In the event the current unallocated support order is
terminated and no alimony payments are ordered, the court shall determine
the amount of child support to be paid.’’
3
The motion to modify included the names and birth dates of the par-
ties’ children.
4
Between May 12, 2008, and May 2, 2012, the parties filed more than
thirty motions related to their children and discovery of the defendant’s
financial assets.
5
Under the agreement, the parties reserved the right for repayment of any
outstanding children’s expenses, including unreimbursed medical expenses,
sports and school expenses, and insurance premiums. On May 2, 2013, they
stipulated that the plaintiff owed the defendant the ‘‘sum of $2072 for the
period of April, 2010, through March 31, 2012.’’
Section 10.10 of the agreement concerns a lawsuit the defendant brought
against his former father-in-law, the plaintiff’s father. The agreement pro-
vided that if the defendant received a settlement of the claim, the plaintiff
was to receive 57 percent of the gross settlement, but was to reimburse
the defendant for taxes. The parties stipulated that the plaintiff owed the
defendant ‘‘the sum of $15,539 for taxes on the lawsuit settlement.’’
The file reflects that the defendant filed a motion for contempt against
the plaintiff for failing to pay him for expenses related to the lawsuit against
his former father-in-law. The parties stipulated, however, that the plaintiff
was not in contempt of the judgment of dissolution orders.
6
See General Statutes § 46b-86 (a) (retroactive effect of motion to modify).
7
Judge Shay stated: ‘‘The contempt and modification are the arbores, you
know, sides of the coin, so to speak. So, they normally go together, I’m
normally hearing them on the same day and at the same time. But we got
a problem here on this one in that the motion for contempt is not in front
of me, but somewhere along the line it’s going to come up in front of me
or another judge. The motion for modification everybody thought was there
is not, in fact, there. So, really there’s nothing in front of me today. Noth-
ing. Zero.’’
8
Judge Richards filed a corrected memorandum of decision on January
2, 2014, to rectify an oversight in the transcription of her decision. The
correction is not relevant to the issues in this appeal.
9
The attorney’s fees awarded to the plaintiff by the court are not an issue
in this appeal.
10
The parties agree that the defendant paid the plaintiff $3000 for twelve
months, which totals $36,000. In terms of § 8.1 of the agreement, $36,000
is 40 percent of $90,000.
11
The defendant had the motion and a notice of hearing served on the
plaintiff to preserve his right to retroactive application of the modification
of unallocated support, if any, in the court’s discretion.
12
The transcript of the proceeding before Judge Shay and the representa-
tions of counsel for the parties on May 2, 2012, and during oral argument
before us reveal that postdissolution motions concerning financial orders
that appear on the short calendar often are not heard due to insufficient
judicial resources.
On May 2, 2013, counsel then representing the plaintiff stated: ‘‘This case
has been long in the tooth, Your Honor, and we’ve tried several times to
get discovery and to get information from [the defendant]. We’ve been here
on several motions to compel and a motion for sanctions. The court has
never reached us, and quite honestly, Your Honor, it got to a point in time
where I felt that I was wasting my client’s money sitting in short calendar
and wouldn’t go forward on these motions.’’
13
There appears to be an error in the court’s calculations as the defendant
did not reduce his unallocated support until July, 2008.
14
The court calculated the amount of unallocated support the defendant
owed the plaintiff pursuant to the formula stated in § 8.1 of the agreement,
as follows:
‘‘A. June 1, 2008 through December 31, 2008 (gross income of $47,600);
40 [percent] of gross income of $47,600=$19,040 owed, less $8400 (support
paid) equals $10,640 owed for 2008.
‘‘B. January 1, 2009 through December 31, 2009 (gross income of $85,050);
40 [percent] of gross income of $85,050=$34,020 owed, less $14,400 (support
paid) equals $19,620 owed for 2009.
‘‘C. January 1, 2010 through December 31, 2010 (gross income of $199,052);
40 [percent] of gross income of $199,052=$79,620.80 owed, less $14,400
(support paid) equals $65,220.80 owed for 2010.
‘‘D. January 1, 2011 through December 31, 2011 (gross income of $192,900);
40 [percent] of gross income of $192,900=$77,160 owed, less $14,400 (support
paid) equals $62,760 owed for 2011.
‘‘E. January 1, 2012 through September 30, 2012 (gross income of $158,000);
40 [percent] of gross income of $158,000=$63,200 owed, less $10,800 paid
equals $52,400 owed for 2012 (through September 30, 2012).’’
15
We note an internal inconsistency in the memorandum of decision as
to when the defendant commenced paying the plaintiff $1200 per month,
whether it was in June, 2008, or July, 2008.
16
The motion to modify included the birth dates of the parties’ children.
17
See Venuti v. Venuti, 185 Conn. 156, 160 n.3, 440 A.2d 878 (1981)
(discussing child support when child turns eighteen). ‘‘Even though an unal-
located order incorporates alimony and child support without delineating
specific amounts for each component, the unallocated order, along with
other financial orders, necessarily includes a portion attributable to child
support in an amount sufficient to satisfy the [child support] guidelines.’’
Tomlinson v. Tomlinson, 305 Conn. 539, 558, 46 A.3d 112 (2012). ‘‘[T]he
trial court must first determine what portion of the unallocated order repre-
sented the child support component at the time of the dissolution.’’ Id.