Opinion
FSTFA175016665S
11-02-2018
Katrina Kelly McSherry v. Paul P. McSherry
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Randolph, Kevin A., J.
MEMORANDUM OF DECISION
Randolph, J.
I. STATEMENT OF THE CASE
The matter proceeded to an evidentiary hearing on Defendant’s Motion for Contempt Regarding Parenting Plan, Postjudgment and Plaintiff’s Objection to Defendant’s Motion for Contempt, Postjudgment. Both parties were represented by counsel.
II. LEGAL ISSUES
Did the plaintiff wilfully disobey the court’s order concerning vacation plans with the minor child and overseas travel with the minor child? Should the court award attorneys fees to either party?
III. STATEMENT OF FACTS
The parties’ marriage was dissolved on December 14, 2017. The separation agreement included provisions concerning school vacations and overseas travel. The relevant provisions of the vacation schedule reads:
Spring School Vacation: (1 week)- Even with the Husband, Odd years with the Wife (or split evenly by mutual agreement in advance).
Winter School Vacation: (1 week)- Even years with the Wife, Odd years with the Husband (or split evenly by mutual agreement in advance). For 2017, the Parties shall split this Winter Vacation.
Summer Vacation: the maximum of three weeks to the Wife if she is travelling to Scotland with the child. The Husband may have up to two summer non-consecutive weeks; however if the Husband desires 2 consecutive weeks, and the Wife does not agree then 5(b)(i) below would apply.
Separation Agreement, Section 5b, page 5.
Both parents shall give the other notification of a vacation plan, preferable 60 days in advance. If either party objects to the other’s plans, the objecting party shall notify the other within five days of the vacation notification. The parents shall seek the recommendation of a parenting coordinator for resolution. A parenting coordinator shall be a trained professional in mental health.
Separation Agreement, Section 5b(i), page 5.
Overseas travel: each Party will need the written approval of the other Party, which shall not be unreasonably withheld, to travel with the minor child to a destination outside of the USA. The traveling parent shall provide a detailed itinerary of transportation, including: dates, times, and providers; and residences, including hotels, Air B&Bs, and homes with addresses and land line phone numbers. If either parent is traveling overnight outside of Stamford, but within the USA, a courtesy notification regarding the child’s location is wired to the non-custodian Parent with a two-week notice except in emergency.
Separation Agreement, Section 5(1), page 8.
Plaintiff did not want the child to travel to Scotland for one week during the school vacation. Among the reasons she objected were: (1) a one-week trip to Scotland returning on a Friday before school would not allow the child to recover from jet lag; (2) the child should not take his first trip to Scotland without her; (3) the first week-long vacation should not be overseas; and (4) the child told her he did not want to go. On another occasion, the child expressed excitement about going to Scotland and attending a soccer game.
The parties communicated contentiously concerning the trip. The defendant wanted to take the minor child to Scotland from Friday, April 6 until Friday, April 13. The defendant gave the plaintiff notice of his intention on February 14, 2018 by email. The plaintiff objected. The defendant booked a flight to Scotland with the child scheduled for April 6, 2018. The defendant declined to attend a meeting with a parenting coordinator to resolve the disagreement. The plaintiff testified that the child told her that he did not want to go to Scotland in April. An email from the plaintiff to the defendant states that the child preferred to go to Scotland in the summer. In an email from the defendant to the plaintiff on March 18, the defendant states that he only needs to inform the plaintiff of his plans.
It’s my prerogative to take Calan to Scotland, and anywhere for that matter as long as it is not harmful or puts him in danger ... I just need to give you the courtesy of a heads up ...
However, the defendant did not take the child to Scotland. Instead he took a trip with the child to Florida during the child’s spring vacation.
IV. PRINCIPLES OF LAW
Contempt
"It is well established that civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts." Gabriel v. Gabriel, 324 Conn. 324, 333 (2017). "To constitute contempt, a party’s conduct must be wilful ... Noncompliance alone will not support a finding of contempt ... a finding that a person is or is not in contempt of a court order depends on the facts and circumstances surrounding the conduct. The fact that an order has not been complied with fully does not dictate that a finding of contempt must enter." Bauer v. Bauer, 173 Conn.App. 595, 599 (2017). The court must find that "the [alleged contemnor] violated the order by clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 316 (2015). "Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt because the contempt remedy is particularly harsh and may be founded solely upon some clear and expressed direction of the court ... One cannot be placed in contempt for failure to read the court’s mind ... This is a long-standing tenet of the law of contempt ... It is also logically sound that a person must not be found in contempt of court order when ambiguity either renders compliance with the order impossible, because it is not clear enough to put a reasonable person on notice of what is required for compliance, or makes the order susceptible to a court’s arbitrary interpretation of whether a party is in compliance with the order." Gabriel at 334.
Construction of the Separation Agreement
"In domestic relations cases, a judgment rendered in accordance with the stipulation of the parties is to be regarded and construed as a contract ... When construing a contract, we seek to determine the intent of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ... [T]he intent of the parties is to be ascertained 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 ... When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract ... When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact ... When the language is clear and unambiguous, however, the contract must be given effect according to its terms, and the determination of the parties’ intent is a question of law." Masgig v. Masgig, 183 Conn.App. 182, 191 (2018) (internal quotation marks and internal citations omitted).
Attorneys Fees
"In any proceeding seeking relief under the provisions of this chapter ... the court may order either spouse, or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82." C.G.S. Section 46b-62. "Whether to allow counsel fees, and if so, in what amount, calls for the exercise of judicial discretion ... An abuse of discretion in granting counsel fees will be found only if an appellate court determines that the trial court could not reasonably have concluded as it did." Pena v. Gladstone, 168 Conn.App. 175, 186 (2016).
V. ANALYSIS
The plaintiff maintains that Section 5b(i) of the Separation Agreement applies. That section requires the parents to use a parenting coordinator to help resolve vacation plan disputes. The defendant seems to concede in his email of March 18th that Sections 5b(i) and 5b(l) apply.
The agreement only says that if you disagree about me taking him for two weeks over the summer and to go to a parental Counsellor. Otherwise parenting time is not to be unreasonably held [sic] ... You can choose to dig in your heels ... but then that would be you acting "unreasonably" which is against the agreement.
Section 5(l) concerns overseas travel and domestic travel. Section 5(b) concerns vacation plans. It is clear that the trip to Scotland during the school recess in April is a vacation plan. The plain and unambiguous language of the agreement requires the parents to use a parenting coordinator to help resolve vacation disputes. The plaintiff sought to use a parenting coordinator. The defendant did not. The defendant resorts to Section 5(l) stating that he need only provide notice of an overseas trip to the plaintiff and that she cannot unreasonably withhold consent for the child to travel to Scotland. First, the notice requirement under Section 5(l) refers to domestic travel. Second, a reasonable and fair reading of both provisions suggests that overseas travel during school vacations falls under the category of vacation plans. Therefore, Section 5(b)(i) concerning the parenting coordinator applies. However, this court’s analysis may not end there.
Section 5(l) contains no provision for a parenting coordinator to help resolve disputes about overseas trips. It only requires written approval "which shall not be unreasonably withheld." While Sections 5(a)-(j) are under the "Custody and Visitation" section of the Separation Agreement, Section 5(l) is under the section titled "Travel." Read separately, it appears that overseas travel only requires written approval which shall not be unreasonably withheld. Read together, Sections 5(b)(i) and 5(1) appear to require a parenting coordinator and written consent. The language of the agreement is ambiguous. The provisions are not clear enough to put a reasonable person on notice of what is required.
VI. CONCLUSIONS OF LAW
The defendant has failed to prove by clear and convincing evidence that plaintiff’s conduct in withholding consent for overseas travel was wilful. The contract language is ambiguous.
VII. JUDGMENT
Defendant’s Motion for Contempt Regarding Parenting Plan, Post judgment is denied. Defendant’s request for attorneys fees and reimbursement for travel booking expenses is denied. The court declines to award attorneys fees to the plaintiff.