Opinion
No. FA 84-0140744
December 8, 2003
ARTICULATION OF FINDINGS RE PLAINTIFF'S POSTJUDGMENT MOTION FOR CONTEMPT #118
This is an Articulation of the Family Support Magistrate's verbal Findings, entered on September 11, 2003. Five (5) years after the initiation of this Contempt proceeding, and on the Seventy-Second (72) Court hearing, and after the Defendant had been found in contempt and incarcerated on Ten (10) prior occasions, and after having reduced his arrearage by more than $13,000, on this arrearage only obligation, the undersigned concluded the contempt proceeding and found the Defendant to be in compliance with the allegations contained in the Contempt citation. The Petitioner has appealed the findings.
The Petitioner's Appeal is based upon the claim that the Office of Support Enforcement (`SES') informed her that this Magistrate refused to accept the Defendant's offer to pay $150 on September 11, 2003, and that the Family Support Magistrate denied SES's request to continue the matter to allow the Petitioner to be present. In response to the Defendant's offer to pay $150 on September 11, 2003, the SES officer stated: "We actually want a little more than $150." Transcript, page 4, lines 18-19. The Court agreed to continue the hearing for the Petitioner to be present. In response, the SES officer testified that she may not be able to notify the Petitioner for the continuance date. The request to continue the contempt and requirement of an appearance bond, all carrying the risk of the Defendant's potential incarceration, appeared to be punitive based upon the prior testimony of the SES officer that the Petitioner was in contact with the SES office every other day. Transcript, pp. 10-11, lines 27, 1-8; pp. 15-16, lines 18-27, 1-21.
The following facts are relevant to the Family Support Magistrate's Findings entered on September 11, 2003.
The Contempt citation is dated June 10, 1998. It alleges that the Defendant is under an order to pay to the Plaintiff the sum of $65 per week in current child support and $13 a week against an arrearage then owed to the Plaintiff. The total balance the Defendant owed in past due child support was alleged to be $36,595, as of June 9, 1998. It was alleged that he was $1,924 delinquent in his payments as of the same date.
Contempt Citation, #118; Transcript, p. 9, lines 21-23; p. 7, lines 20-22, and p. 9, lines 2-3.
Subsequent to the service of the contempt citation, the child that is the subject of the Order emancipated. The Order had been modified four times during the pendency of the contempt proceeding, absent any written motion to modify.
Judgment of Dissolution Complaint, Paragraph 4. See also, Transcript, p. 2, lines 15-21; p. 10, lines 8-19.
Order, Lifshitz, F.S.M., dated August 16, 1999, increased the arrearage payment from $13 per week to $35 per week and for the Defendant to pay $1,500 each quarter, for one year. Order, Lifshitz, P.S.M., dated 11-2-98 reduced the arrearage payment plan to $7 per week. Order, Alvord, F.S.M., dated May 1, 2000, increasing the weekly arrearage payment to $60. Order, Colella, F.S.M., dated 9-13-02 increased the arrearage payment plan to $150 per week. See also, Transcript, pp. 5-6, lines 25-27, 1-2; p. 10, lines 8-20.
On September 11, 2003, the Defendant was presented to the undersigned on an executed capias requiring the Defendant to post a $1,000 bond to secure his release from incarceration. The Court specifically inquired into the nature of the hearing and the matter was identified as a contempt hearing. It is not uncommon for one, or both parties to request a hearing on the need for an appearance bond, and the amount of the surety to be posted, pending a full contempt hearing. It is also common in the family support session that the petitioner/custodial parent is absent from the hearing. In fact, the Petitioner in this matter was not present at 45 of the 72 court dates. In this matter SES, on behalf of the Petitioner, did not request an appearance bond or a future date for a contempt hearing until it became evident that this Court was not inclined to find the Defendant in Contempt. The Court considered Support Enforcement Services to be the advocate for the Petitioner and a party witness on her behalf.
Transcript, p. 1, lines 1-2; 9-12.
Transcript, p. 2, lines 24-27.
Transcript, page 10, lines 23-27; p. 11, lines 1-12; and page 16, lines 18-21 ("Your Honor, I would have if I had known that the Court may not be inclined to enforce the current orders of $150. Had I known that was the situation, I — ").
On this single contempt proceeding, the Defendant had been incarcerated on ten (10) occasions as follows:
1. 5-10-99 Mattasavage, F.S.M. Purge set at $1,000, and was paid on 5-25-99;
2. 8-16-99, Lifshitz, F.S.M. Purge amount set at $1,000. As continuing terms of his purge, Defendant was ordered to pay an additional $1,500 lump sum each quarter for one year. In addition, the arrearage payment was increased to $35 per week. The Defendant was ordered to seek employment by applying at 30 prospective places of employment each week until he obtained 52 hours of employment per week. He was advised that his failure to produce evidence of his job search would result in an imposition of $100 fine. The $1,000 purge figure was paid. On 10-28-99 the Defendant was "in compliance" with this Order;
3. 4-13-00 Lifshitz, F.S.M. Purge originally set at $2,500, reduced to $450 on 5-1-00;
4. 2-26-01 Alvord, F.S.M. Partial purge originally set at $300, and reduced to $100 on 3-8-01. The Order for the January $1500 quarterly lump sum was vacated;
5. 5-14-01 Alvord, F.S.M. Partial purge set at $550, plus payment of the weekly support obligation. The purge was reduced to $300 on 6/4/01;
6. 12-10-01 Lifshitz, F.S.M. Purge $3000 and job search. Review of the purge amount was scheduled for 1/7/02. However, the purge was paid prior to the review date;
7. 2-11-02 Baran, F.S.M. Purge was originally set at $900, and was reduced to $500 on 2-25-02, when the Order of incarceration was vacated to allow him to obtain the purge amount;
8. 3-18-02 Baran, F.S.M. Purge $50 + $500 prior purge;
9. 3-25-02 Baran, F.S.M. Purge amount originally set at $5,000, and was reduced to $3,000 on 4/15/02, and was further reduced to $1,000 on 4-26-02. It was finally reduced to $0 on 5-20-02; and
10. 11-4-02 Colella, F.S.M. Purge amount originally set at $2,500, and was reduced to $400 on 12-2-02.
At the September 11, 2003 hearing at issue, the undersigned recognized only 5 prior contempt findings that resulted in the Defendant's incarceration. Transcript, p. 7, lines 4-19; p. 8, lines 16-17; p. 9, lines 23-26.
In addition, on two additional occasions, the Defendant was found to be in contempt of the Court Orders, however, incarceration was stayed or suspended.
Order, 4/16/01, F.S.M. Alvord; Order, 7/17/00, F.S.M. Sossnoff-Baird.
Pursuant to Conn. Gen. Stat. § 46b-215(e), this Court undertook a review of the Order sought to be enforced, and the reasonableness of the Order. The Court recognized the Defendant's past work history and earnings, as well as his present employment status. The Defendant had been ordered to seek employment on 29 prior court appearances. He testified that he had been prevented from retaining full-time employment due to his lack of education, and the effects of a traumatic brain injury. In further support of his inability to pay the Order, the Defendant testified that he had been in treatment for substance abuse and that he lacked transportation due to the loss of his driver's license. The Defendant had recently obtained employment as a roofer, making approximately $200 per week.
Conn. Gen. Stat. § 46b-215(e) provides, in part: "Any court or family support magistrate called upon to enforce a support order shall insure that such order is reasonable in light of the obliger's ability" (emphasis added).
Transcript p. 4-5, lines 23-27, 1-8; page 11, lines 17-20.
Transcript, p. 7, lines 11-14.
Transcript, p. 3, lines 16-27.
Transcript, p. 5, lines 3-8.
Transcript, page 5, lines 18-24; page 6, lines 13-26, and p. 9, lines 9-19.
Reasoning
Connecticut Practice Book § 25-27 provides, in relevant part:
All motions for contempt must state (1) the date and specific language of the order of the judicial authority on which the motion is based; 2) the specific acts alleged to constitute the contempt of the order, including the amount of any arrearages claimed due as of the date of the motion or a date specifically identified in the motion, 3) the movant's claims for relief for the contempt.
It is a fundamental principle of our law that the right to recover is limited to the allegations pled. Breiter v. Breiter, 80 Conn.App 332, 335 (2003) (citations omitted). "Facts found but not averred cannot be the basis of recovery Thus it is clear that [t]he court is not permitted to decide issues outside of those raised in the pleadings . . . A judgment in the absence of written pleadings defining the issues would not merely be erroneous, it would be void." Id. at 335-36.
"A contempt citation is a serious proceeding which can lead to severe penalties." Hicks v. Feiock, 481 U.S. 624, 108 S.Ct. 1423 (1988); Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029 (1987). Due process of the law requires, at a minimum, 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, and have the right to be represented by counsel. Bryant v. Bryant, 228 Conn. 6301 (1994).
The controlling Connecticut Supreme Court cases, Mays v. Mays, 193 Conn. 261 (1984), and Tobey v. Tobey, 165 Conn. 742 (1974), outline the requirements of a civil contempt finding. In order to be found in civil contempt for failure to pay financial orders, several conditions must be met: the respondent must know what the orders are; he must be able to pay the orders or not have placed himself in the position where he cannot pay the order, and he must have willfully disregarded and failed to comply with the rules of court. Mays, 193 Conn. at 264; Tobey, 165 Conn. at 742; cited in Tuozzoli v. Tuzzoli, 1992 Ct. Sup. 11784, 11785 (12/22/92, Bassick, J.); Kemp v. LaFerrierre, 1992 Ct. Sup. 3450, 3451 (4/2/92, Sullivan, F.S.M.); and Bryant v. Bryant, 228 Conn. 630, 637 (1994).
A finding of contempt is implicit to the court's authority to coerce compliance with an order and obtain obedience from a person who can comply, but who is willfully refusing to comply. Mays v. Mays, 193 Conn. at 266, 267. In a civil contempt proceeding the contemnor must be in a position to purge himself otherwise the sanction imposed would cease to be remedial and coercive and would become wholly punitive in actual operation. Mays v. Mays, 193 Conn. at 266; Leslie v. Leslie, 174 Conn. 399, 402-03 (1978); Wilkinson v. Wiegand, 1997 Ct. Sup. 1524, 1537 (February 27, 1997, Levine, J.). See also Mallane v. Mallane, 7 Conn. L. Rptr. 756, 1992 Ct. Sup. 7881, 7 CSCR 1056 (August 20, 1992, Harrigan, J.) (reversing a family support magistrate's imposition of confinement until a lump sum payment was made because the defendant's only means to pay the lump sum was not based upon his own ability, but on his parent's ability, thus he did not have the keys to his own release); Berthiaume v. Berthiaume, 2000 Ct. Sup. 102440 (August 20, 2000, McLaughlin, J.) (reversing a family support magistrate's order continuing a contempt proceeding to monitor the defendant's future compliance with a court order because the defendant did not have the keys to his release to the threatened future incarceration for acts not yet committed); Eldridge v. Eldridge, 1994 Ct. Sup. 599, 601 (January 19, 1994, Teller, J.) (a party may not be in contempt if he is unable to obey the court order); Therrien v. Therrien, 2000 Ct. Sup. 14914 (November 27, 2000, Devine, J.) (reversing a family support magistrate's order requiring a defendant to pay a $2,000 purge because the defendant had an inability to pay the purge). To constitute a contempt, a party's conduct must be willful.
The movant must demonstrate the elements of the contempt by clear and convincing evidence, whereas the contemnor need merely establish a prima facie case on the defense of inability to pay. Therefore, the burden shift back to the movant to demonstrate, by clear and convincing evidence, that the contemnor had the ability to comply. Mays v. Mays, 193 Conn. at 264; Mallow v. Mallow, 207 Conn. 48, 57 (1998); Perry v. Perry, 222 Conn. 799, 804-05 (1992).
It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's orders. Marcil v. Marcil, 4 Conn. App. 403, 405 (1985); Eldridge v. Eldridge, 1994 Ct. Sup. at 599; Security Mutual Life v. Kings West Ltd., 30 Conn. L. Rptr. 655, 2001 Ct. Sup. 15024 (November 7, 2001, Skolnick, J.) (internal citations omitted). Non-compliance alone will not support a judgment of contempt. Prial v. Prial, 67 Conn. App. 7, 14 (2001); Pasternak v. Pasternak, 2003 Ct. Sup. 5366, 5370 (April 23, 2003, Dewey, J.).
In the present matter, the Order sought to be enforced, $150 per week on the arrearage owed to the Petitioner, was not pled in the contempt citation. The failure to allege the Order sought to be enforced is in contravention to Practice Book § 25-27. In addition, the Defendant had a past inability to pay the order sought to be enforced. The $150 arrearage was not based on a guidelines calculation. The Order alleged in the Contempt citation claimed that the Defendant failed to pay his $65 per week current order of support and had a $13 week arrearage obligation. Under this Order, the child's emancipation would result in an order no more than $32 per week on the arrearage (1/2 the current order of support). See, Conn. Gen. Stat. § 46b-215; Turner v. Turner, 219 Conn. 703 (1991); accord Gorton v. Gorton, AC 23902, October 19, 2003.
Conn. Gen. Stat. § 46b-215b(a) provides, in relevant part: "The child support and arrearage guidelines . . . shall be considered in all determinations of child support amounts." (Emphasis added.)
As a fundamental requirement of due process of law, written motions are required to modify an order of the court. Connolly v. Connolly, 191 Conn. at 475-76. No written motion requesting an increase arrearage payment plan was filed in this proceeding. No basis for any deviation from the guidelines application was specifically found. Clearly, this Court has jurisdiction to enter into a payment plan for past due child support pursuant to the statutory provisions of Conn. Gen Stat. § 46b-215(a)(9). However, this Magistrate would oppugn an arrearage payment plan that is in excess of the presumptive guidelines amount without a finding that a specific deviation basis exists. In the instant matter, the arrearage payment plan is more than four times (4x) the guidelines presumptive amount, and more than double his prior child support obligation. The substantial evidence established that the Defendant had no prior ability to pay $150 per week. His inability to pay the Order is a valid defense to the contempt proceeding.
Defendant's failure to pay the $150 per week order was not as a result of willful disobedience of the Court Order. He demonstrated a willingness to make the requisite payments going forward. This is a factor that the Court must consider in the civil contempt proceeding. Connolly v. Connolly, 191 Conn. 468, 483 (1983); Iannucelli v. Iannucelli (May 12, 1995). His present willingness to pay the Order was supported by his claim that he recently became employed, earning $200 net per week. The Court was legally bound to consider his willingness to comply with the Order.
The Defendant demonstrated a factual basis to explain his failure to honor the Court Order. It was within the sound discretion of the Court to deny the claim of contempt. Over the course of the five (5) years that this contempt proceeding has been on the Family Support Magistrate docket, the Defendant reduced his arrearage by Forty-one percent (41%), from a high of $38,935 to $22,887. Any further continuance of the contempt proceeding would not be coercive but, rather, punitive in operation.
See Order, dated May 10, 1999, finding Petitioner's arrearage of $38,935 and an arrearage owed to the State, in the amount of $845.
The Defendant is in substantial compliance with the allegations of the Contempt Citation, claiming that he has failed to honor his support obligation of $65 per week in current support and $13 per week on an arrearage then claimed due and owing.
Conclusion
In the exercise of this Court's discretion, and considering the substantial evidence presented, the proceedings on the contempt citation, dated June 1998, are deemed concluded. The Defendant's lack of compliance with a $150 per week arrearage order was not alleged in this contempt citation. The weekly obligation was not supported by a guidelines calculation and is grossly in excess of the presumptive amount. No evidence was provided demonstrating that the Defendant had a past ability to pay the Order. His work history and past earnings support his defense of his inability to pay the Order. His failure to honor the Court Order was not as the result of willful or intentional conduct. He demonstrated a willingness to comply with the Order based upon his recent employment. Further continuance of the contempt proceeding would exceed this Magistrate's authority and potentially violate the due process rights of the Defendant as such would be punitive in nature, not coercive.
Acknowledging that the $150 per week arrearage obligation was not entered pursuant to any motion process, it is a valid order of the Court, absent further court order.
LINDA T. WIHBEY, FAMILY SUPPORT MAGISTRATE.