Opinion
NNHFA175040650S
01-07-2019
Chris DALL v. Johanna DALL
UNPUBLISHED OPINION
OPINION
Klatt, J.
The parties appear before the court on plaintiff father’s Motion for Order, Postjudgment, seeking to enforce a foreign judgment and a finding of contempt from said court against the defendant mother pursuant to C.G.S. Section 46b-71(b).
The parties reached a Joint Stipulation of Facts (# 125) on June 18, 2018. The court incorporates those facts into this decision.
The matter before the court involves a custodial modification and contempt finding made by the Florida court in 2012. The parties stipulated to the registration of the foreign judgment in Connecticut on January 9, 2018. In sum, the contempt action stemmed from mother’s removal of their eight-year-old minor child from Florida to South Africa. The resulting dispute over custody prevented father from seeing the minor child for a period of six years.
The parties were divorced in Florida in 2005. At that time, the parents agreed to an access plan that allowed for primary residence with mother and father to have the minor child two holidays and in the summer. Father was in school at that point, it was anticipated that he would file for expanded time once he graduated.
Mother had met her second husband, a South African businessman in October 2009, and by February 2010 wanted to move to South Africa with him. Eventually they married in South Africa in 2012, but later divorced in 2013.
In March 2010, Mother filed a Notice of Intent to relocate in the Florida court system. In May 2010, she filed a Petition to Relocate. Pursuant to Florida family statutes and the parties’ separation agreement, the parents engaged in mediation regarding the minor child’s move to South Africa. According to mother, father agreed to the move and they were just ironing out details. According to father, he had not agreed, except in very general terms. Both concur no written agreement was ever reached and the mediation ultimately proved unsuccessful. On September 8th, the parties had their last mediation meeting. Mother claims after mediation the parties went to dinner, resolved the dispute, and that father consented to the child’s move to South Africa. Father agrees that they met after mediation and had dinner together, but not that he had consented to the move.
On September 25, 2010, mother and child flew to South Africa. Mother claims she called father on October 1st to let him know child was in South Africa. Father testified that mother told him nothing; he had to hire an investigator who determined that mother had quit job, house was empty, and the child no longer in school.
Father then petitioned the Florida court and on October 6th a full evidentiary hearing was held with all parties participating and with benefit of counsel; mother was able to testify telephonically. Mother admitted she had taken the child to South Africa but testified that they were only on holiday. The court at that time ordered mother to return the child immediately to Florida. Mother originally agreed to return with the child in October, but in the end never returned the child. She testified that her attorney told her she would be arrested and lose custody of child if she returned.
On October 19, 2010, the Florida court held further hearings regarding the custody of the minor child. On October 22, 2010 the court ordered full custody of the child to father, found mother in contempt, issued a contempt fine of $ 200 per day until child was returned and granted legal costs in excess of $ 75, 000. The final judgment upholding the initial contempt finding was issued in the Florida court on January 9, 2012.
The father filed under the Hague convention seeking the return of his son. He did not follow through on his petition through the Hague courts claiming he had been financially unable to do so. On October 31, 2012, the Hague court, with only mother’s participation, found that mother did not unlawfully remove child from the United States.
Father also sought and obtained criminal charges against mother for custodial interference. Mother testified that hers and the child’s passports were cancelled once the criminal arrest warrants went into the system. They were unable to leave South Africa until the warrants were withdrawn.
While they were able to connect electronically, father did not physically see his child again until 2016. By that point, parties were able to communicate well enough so that father could visit with the minor child in South Africa. Father then essentially tricks mother into allowing the child to "visit" father in the United States and the child returned to his custody on June 6, 2016. The criminal warrants were withdrawn, but father served mother with restraining order upon her return to the United States on August 12, 2016.
The mother maintains she left with child because she had father’s consent and that was the sole reason she did not return the child. She testified that she would not return to the United States, or allow the child to return, until the arrest warrants were vacated.
The plaintiff father now moves for an order of enforcement of the Florida judgment finding the defendant mother in contempt and ordering the payment of legal costs and the amounts payable due to the imposition of the contempt fines imposed by its judgment.
The January 9, 2012 Florida ruling adjudged the defendant to be in willful civil contempt and imposed "as a coercive civil sanction a payment of $ 200.00 per day for each day after the date of entry of this Final Judgment which the minor child remains outside the territorial boundaries of the United States and out of the former husband’s physical custody. In setting this coercive civil sanction the court has considered the financial resources available to the former wife and weighed that with the severity of the former wife’s contemptuous misconduct." Judgment, p. 20. In addition, the court granted father’s motion for attorneys fees, court costs, legal fees in relation to the Hague proceedings, and additional court expenses. The court’s award totaled $ 76, 080.30 plus interest at 4.75% per year.
In reaching this judgment, the Florida court had held an exhaustive series of evidentiary hearings regarding the factual allegations of the custody and contempt issues raised by the parties at the time the incidents occurred. All of the parties were present or able to participate in the proceedings. The father alleged a contempt of the court-ordered separation agreement, a full evidentiary hearing was held and the courts, including an appellate review, ruled in his favor finding a willful contempt of an order of the Florida court.
In the present motions before this court, it is not appropriate for the court to review their factual findings or orders. The court cannot re-evaluate the facts and reach a different conclusion regarding the contempt finding. It is simply whether the court may enforce the Florida contempt judgment.
In determining whether the Florida court’s 2012 orders are enforceable in Connecticut, the present court must first distinguish between the two types of civil contempt sanctions that were imposed. The Florida court’s orders consisted of monetary sanctions in the form of per diem fines and an award of attorneys fees, costs, expenses, and interest.
"The court has an array of tools available to it to enforce its orders, the most prominent being its contempt power. Our law recognizes two broad types of contempt: criminal and civil. See, e.g., DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278, 471 A.2d 638 (1984). The two are distinguished by the type of penalty imposed. See, e.g., In re Jeffrey C., 261 Conn. 189, 197-98, 802 A.2d 772 (2002); McTigue v. New London Education Assn., 164 Conn. 348, 352-53, 321 A.2d 462 (1973). A finding of criminal contempt permits the trial court to punish the violating party, usually by imposing an unconditional fine or a fixed term of imprisonment.
Civil contempt, by contrast, is not punitive in nature but intended to coerce future compliance with a court order, and the contemnor should be able to obtain release from the sanction imposed by the court by compliance with the judicial decree. Connolly v. Connolly, 191 Conn. 468, 482, 464 A.2d 837 (1983). A civil contempt finding thus permits the court to coerce compliance by imposing a conditional penalty, often in the form of a fine or period of imprisonment, to be lifted if the noncompliant party chooses to obey the court. See id." (Footnote omitted; internal quotation marks omitted.) O’Brien v. O’Brien, 326 Conn. 81, 97-98, 161 A.3d 1236 (2017).
"The court’s authority to impose civil contempt penalties arises not from statutory provisions but from the common law. Potter v. Board of Selectmen, supra, 174 Conn. 197, 384 A.2d 369; Welch v. Barber, 52 Conn. 147, 156 (1884); Huntington v. McMahon, 48 Conn. 174, 196 (1880). The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both. Rogers Manufacturing Co. v. Rogers, 38 Conn. 121, 123-24 (1871); see Board of Education v. Shelton Education Ass’n, supra, .
"The evaluation of civil contempt penalties depends to a great extent on whether the penalties are considered at the time they are first conditionally imposed for the purpose of coercing compliance or are considered after the contempt has been purged and the penalties are finalized. When the penalties are first imposed, the propriety of the court’s exercise of its discretion turns on the reasonableness of the amount of the coercion that the court deems necessary, keeping in mind the court’s ultimate power to reduce the penalties once the contempt has been purged." Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982).
"But a trial court in a contempt proceeding may do more than impose penalties on the offending party; it also may remedy any harm to others caused by a party’s violation of a court order. When a party violates a court order, causing harm to another party, the court may ‘compensate the complainant for losses sustained’ as a result of the violation. (Internal quotation marks omitted.) DeMartino v. Monroe Little League, Inc., supra, 192 Conn. at 278. A court usually accomplishes this by ordering the offending party to pay a sum of money to the injured party as ‘special damages ... (Internal quotation marks omitted.) Id., at 279." O’Brien v. O’Brien, supra, 326 Conn. 99.
"Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and 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 complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy. Civil contempt proceedings are not punitive— i.e., they are not imposed for the purpose of vindicating the court’s authority— but are purely remedial ... It is well settled ... that the court may, in a proceeding for civil contempt, impose the remedial punishment 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 of the injunction." (Citations omitted; internal quotation marks omitted.) DeMartino v. Monroe Little League, Inc., supra, 192 Conn. 278-80.
In the present case, the Florida court’s 2012 order requiring the defendant to pay a $ 200 per diem fine was issued only after the court had found the defendant in willful contempt in 2010, and only after the court had found in 2010 that the defendant had the opportunity and financial ability to purge herself of the contempt by returning the child to the plaintiff in the United States. (See pages 14-15 of the Florida court’s January 9, 2012 decision, referencing the court’s October 22, 2010 decision.) The defendant had notice in 2010 that she could face contempt sanctions at a later date if her contumacious behavior continued. (See page 16 of the Florida court’s January 9, 2012 decision, referencing the court’s October 22, 2010 contempt finding and reservation of decision to impose sanctions on defendant.) Moreover, the per diem fine imposed in the present case was conditional and coercive because it was prospective in nature. Specifically, the Florida court’s January 9, 2012 decision made the per diem fine effective from the day after the date of the court’s decision until the date on which the child is returned to the plaintiff in the United States. Compare Quaranta v. Cooley, supra, 130 Conn.App. 842-43 ("order imposing $ 100 penalties on the defendant was neither conditional nor coercive because the penalties were not prospective in nature; rather, they were imposed for violations of the court’s orders that already had occurred" [emphasis in original]). Accordingly, the Florida court’s per diem fine is enforceable in Connecticut as a coercive civil contempt sanction.
The parties in the present case disagree about the impact of the Appellate Court’s decision in Medeiros v. Medeiros, 175 Conn.App. 174, 167 A.3d 967 (2017), in the circumstances of this case. In Medeiros, the Appellate Court reversed the trial court’s judgment imposing, inter alia, $ 100 per diem fines related to the defendant’s refusal to allow the plaintiff visitation with the parties’ child for three days. The Appellate Court stated that "[t]he 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, 203-04, 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 conducting a nonsummary criminal contempt proceeding in the context of a motion for contempt filed by a party in a family relations matter. On the basis of the record before us, we conclude that the court correctly understood 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 proceedings 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 punitive— i.e., they are not imposed for the purpose of vindicating 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 punishment 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 attorneys 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 evidence as to actual damages suffered by the plaintiff." (Footnotes omitted.) Medeiros v. Medeiros, supra, 175 Conn.App. 202-04.
In Medeiros, the Appellate Court declined to review the defendant’s claim that the trial court had improperly awarded the plaintiff $ 2, 500 in attorneys fees and $ 143 in costs on the ground that the defendant failed to object to the plaintiff’s request for attorneys fees and costs. Medeiros v. Medeiros, supra, 175 Conn.App. 204-06. The Appellate Court noted, however, that "[a]n award of court costs plus reasonable attorneys 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. at 280." Medeiros v. Medeiros, supra, 175 Conn.App. 204, n.21.
The Appellate Court in Medeiros treated the $ 100 per diem fines as being compensatory in nature; Medeiros v. Medeiros, supra, 175 Conn.App. 203; without examining whether the fines might have been proper as coercive civil sanctions. A review of our case law appears to indicate, however, that the $ 100 per diem fines imposed in Medeiros would also have been improper as coercive civil sanctions because the fines were not conditional and prospective in nature, and the defendant could not purge the contempt because the fines had been imposed for violations of the court’s orders that had already occurred. See Quaranta v. Cooley, supra, 130 Conn.App. 842-43.
In the present case, the plaintiff father’s request for enforcement of the monetary sanctions imposed by the Florida court is supported by Connecticut law. The Florida court found the defendant in contempt in 2010 but reserved the authority to impose monetary sanctions at a later time. (See page 16 of the Florida court’s January 9, 2012 decision, referencing the court’s October 22, 2010 contempt finding and reservation of decision to impose sanctions on defendant.) The defendant, therefore, was on notice in 2010 that she could face monetary sanctions for her contempt. Moreover, on January 9, 2012, when the Florida court imposed the per diem fines and awarded attorneys fees, costs, expenses, and interest, it did so having already found, in 2010, that the defendant had the ability to purge herself of the contempt by returning the child to the United States. (See page 15 of the Florida court’s January 9, 2012 decision, referencing the court’s October 22, 2010 contempt finding.)
The portion of the Florida court’s 2012 order awarding the plaintiff (1) $ 49, 622.75 in reasonable attorneys fees for trial and appellate level proceedings in the United States; (2) $ 1, 957.46 in reasonable costs for trial and appellate level proceedings in the United States; (3) $ 19, 543 in reasonable expenses for related legal proceedings in South Africa; (4) $ 4, 357.09 in additional expenses incurred by the plaintiff as a result of the defendant’s misconduct and abduction of the child; and (5) $ 600 in reasonable attorneys fees and paralegal fees incurred by the plaintiff in connection with the January 9, 2012 hearing was compensatory in nature because the sanctions related to actual losses incurred by the plaintiff as a result of the defendant’s contumacious conduct. (See pages 20-21 of the Florida court’s January 9, 2012 order.) See Mays v. Mays, supra, 193 Conn. 266. The court further awarded interest to accrue at the rate of 4.75 percent. (See page 21 of the Florida court’s January 9, 2012 order.) This award also represents compensation for losses incurred by the plaintiff. The Florida court’s compensatory awards are, therefore, proper under Connecticut law. See Quaranta v. Cooley, supra, 130 Conn.App. 844-47; Medeiros v. Medeiros, supra, 175 Conn.App. 204, n.21; DeMartino v. Monroe Little League, Inc., supra, 192 Conn. 280.
The per diem fines imposed in the present case were unrelated to any actual losses incurred by the plaintiff. In view of the Florida court’s 2010 findings of contempt and the defendant’s ability to purge, it ordered that the per diem fines would run from the day after the court’s January 9, 2012 order until such time as the defendant returns the child to the plaintiff in the United States. The defendant could have avoided the accrual of the per diem fines by complying with the court’s order. The portion of the 2012 order imposing the per diem fines, therefore, appears to satisfy the requirement that such sanctions be conditional, coercive, and prospective in nature. See Mays v. Mays, supra, 193 Conn. 266; Quaranta v. Cooley, supra, 130 Conn.App. 840-43. Accordingly, the per diem fines are enforceable as coercive civil contempt sanctions.
Based on this analysis of the law, this court finds that the award for attorneys fees, court costs, legal proceeding in South Africa, and additional expenses, in the total amount of $ 76, 080.30 plus interest, at the rate 4.75% per year, from January 9, 2012 through June 18, 2018, should be properly enforced against the defendant as compensatory damages suffered by the plaintiff.
This court also finds that the per diem fines imposed by the Florida court were properly awarded as coercive sanctions, with proper notice to defendant, and with the intention of compelling her to return the child to the United States. However, the court finds that to enforce this portion of the judgment would at this point in time be punitive, not compensatory, in nature.
Testimony established that for all its’ impressive intent the per diem fine had little effect on the defendant in relation to returning the child to the United States. She testified her only concern was whether she would be arrested and/or lose custody of the child. Had the fines succeeded in their intent, the child would have been returned much earlier. The child has now been back in the father’s custody for nearly two years and a new parental access plan in place to safeguard from any further violations. This court in no way condones the defendant’s behavior. Her actions were unconscionable and under no circumstances does the court believe her claim that the father consented. To enforce this portion of the judgment however at this time would simply be to punish the defendant for her contemptuous behavior.
Defendant argues that this court should modify and/or set aside the Florida judgment in light of The Hague Convention decision of October 31, 2012, finding that the child was not wrongfully removed from the United States. Defendant claims that this decision should be given full-faith-and-credit and is controlling in this matter. This court is not persuaded.
"The Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent’s custody rights more generally. Those rules are provided in the Uniform Child Custody Jurisdiction and Enforcement Act." Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir. 2013). In short, the Convention does not supersede local law as to jurisdiction and is not entitled to full-faith-and-credit.
Further, the Hague court proceedings were conducted with only one party present and do not consider the best interest of the child standard as in both Florida and Connecticut jurisdictions. The Hague Convention is simply a means to compel the expeditious return of a child wrongfully removed/retained from the child’s habitual residence. (Article 1.)
Orders:
The court orders the enforcement of the Florida judgment requiring the defendant to pay the sum of $ 99, 268.94 to the plaintiff.
The court orders all parties present for a hearing solely to determine the manner in which this payment shall be made.