Opinion
AC 44803
07-18-2023
Stephanie NETTER v. Donald NETTER
John G. McCarthy, with whom, on the brief, was Harold R. Burke, Greenwich, for the appellant (defendant). James P. Sexton, Hartford, with whom was John R. Weikart, for the appellee (plaintiff).
John G. McCarthy, with whom, on the brief, was Harold R. Burke, Greenwich, for the appellant (defendant).
James P. Sexton, Hartford, with whom was John R. Weikart, for the appellee (plaintiff).
Alvord, Suarez and Seeley, Js.
ALVORD, J. In this marital dissolution action, the defendant, Donald Netter, appeals from the trial court's order on the pendente lite motion of the plaintiff, Stephanie Netter, requesting access to the marital residence to retrieve her personal belongings and from the judgment of the court holding him in contempt for his failure to comply with a provision of the court's pendente lite parenting plan. On appeal, the defendant claims that the court improperly (1) issued the order permitting access to the marital residence, and (2) granted the plaintiff's motion for contempt. We conclude that the appeal is moot as to the defendant's first claim and dismiss that portion of the appeal. We affirm the court's judgment of contempt.
The defendant was self-represented at the time of these motions and their respective hearings but is represented by counsel during this appeal.
Specifically, the defendant claims (1) that the pendente lite access order violated his constitutional rights, and (2) that the court abused its discretion in issuing the pendente lite access order.
The following facts and procedural history are necessary to our resolution of this appeal. The parties were married on July 9, 2005, in New York, New York. They have two minor children. At the time of their marriage, the defendant resided on Round Hill Road (Round Hill Road property or marital residence) in Greenwich. After their marriage, the parties primarily resided in New York City and continued living there after the birth of their children. When the children began school, the parties lived full-time at the marital residence. On March 1, 2017, the plaintiff commenced this marital dissolution action, vacated the marital residence, and moved into an apartment in Greenwich.
Many pendente lite motions have been filed in this highly contentious dissolution action. The resolution of two pendente lite motions are at issue in this appeal. First, on February 6, 2019, the plaintiff filed a motion to access the marital residence to retrieve her personal belongings. Second, on August 8, 2019, the plaintiff filed a motion for contempt alleging that the defendant had violated a provision of a pendente lite parenting plan ordered by the court on October 25, 2018 (parenting plan). The court, Heller, J. , held a hearing on these and several other motions on October 23 and December 11, 2019, and February 10, 2021. On June 9, 2021, the court issued a memorandum of decision in which it granted the plaintiff's motion to access the marital residence for retrieval of her personal belongings and the motion for contempt relative to the parenting plan. This appeal followed. On January 23, 2023, during the pendency of this appeal, following a fifty-seven day trial spanning seventeen months, the court issued a memorandum of decision dissolving the parties' marriage. Additional facts and procedural history will be set forth as necessary. I
The defendant first claims on appeal that the court improperly granted the plaintiff's pendente lite motion to access the marital residence to retrieve her personal belongings. Oral argument before this court was scheduled for May 24, 2023. On May 15, 2023, this court notified the parties to "be prepared to address at oral argument whether the portion of this appeal challenging the June 9, 2021 pendente lite order concerning the plaintiff's supervised access to the Round Hill [Road] property is moot in light of the January 23, 2023 dissolution judgment. See Sweeney v. Sweeney , 271 Conn. 193, 201 (2004)." At oral argument, the defendant's counsel conceded that his appeal from the pendente lite access order was moot but argued that this court could hear his claims under the capable of repetition, yet evading review exception to the mootness doctrine. The plaintiff's counsel argued, inter alia, that the claims are not "evading review" because the final dissolution judgment superseded the pendente lite access order, and the defendant has filed an appeal from the final judgment of dissolution. See Netter v. Netter , Connecticut Appellate Court, Docket No. AC 46484 (appeal filed May 5, 2023). We conclude that the appeal from the pendente lite access order is moot.
We begin by setting forth the relevant legal principles that guide our review. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. ... Pendente lite orders are temporary orders of the court that are necessarily extinguished once a final judgment has been rendered. ... Once a final judgment has been rendered, an issue with respect to a pendente lite order is moot because an appellate court can provide no practical relief. ... As a result, an appellate court lacks subject matter jurisdiction over a pendente lite order after the trial court has rendered a final judgment." (Citations omitted; internal quotation marks omitted.) Altraide v. Altraide , 153 Conn. App. 327, 332, 101 A.3d 317, cert. denied, 315 Conn. 905, 104 A.3d 759 (2014).
The following additional facts and procedural history are necessary for our resolution of this claim. On June 9, 2021, the court granted the plaintiff's motion to access the marital residence. The pendente lite access order stated: "The plaintiff shall have access to the Round Hill Road property to retrieve her clothing and shoes, personal and professional belongings, and kitchen and office items (collectively, the plaintiff's belongings) as follows: The plaintiff shall have access to the Round Hill Road property between 9 a.m. and 5 p.m. on two days during the period June 21, 2021, to July 21, 2021. On or before June 14, 2021, the plaintiff shall propose six dates on which she is available to retrieve her belongings from the Round Hill Road property during that time period. The plaintiff shall communicate these dates to the defendant via Our Family Wizard. The defendant shall select two of the six dates and notify the plaintiff of his selection on Our Family Wizard on or before June 16, 2021. The two dates selected by the defendant shall be the dates on which the plaintiff shall have access to the Round Hill Road property to retrieve her belongings. The plaintiff shall be accompanied by an off-duty Greenwich police officer who shall remain at the Round Hill Road property at all times while the plaintiff is in the former marital residence. The plaintiff shall pay for the services of the Greenwich police officer without prejudice to seeking reimbursement from the defendant in the final orders to be issued in the dissolution action. The plaintiff may be accompanied by up to two other individuals to assist her in retrieving her belongings, neither of whom shall be the defendant's mother, Barbara Netter. These individuals shall be permitted to enter the Round Hill Road property and the former marital residence with the plaintiff. If the defendant is at home while the plaintiff is retrieving her belongings from the Round Hill Road property, he must remain in the pool house and shall not be in the residence. The children shall not be present at any time while the plaintiff is retrieving her belongings from the Round Hill Road property. The defendant shall arrange for the former marital residence at the Round Hill Road property to be unlocked and opened when the plaintiff arrives. The security system shall be unarmed. The lights and the air conditioning shall be working. The defendant may have a representative present to observe the plaintiff's retrieval of her belongings from the Round Hill Road property. Neither the defendant nor his representative shall photograph, record (by audio or visual means), or monitor by security camera or other means of surveillance the plaintiff's retrieval of her belongings from the former marital residence. The defendant shall not interfere with the plaintiff's access to the Round Hill Road property or to her belongings. The defendant shall not remove, move or hide any of the plaintiff's belongings to prevent her from retrieving them. The plaintiff shall promptly notify the defendant by Our Family Wizard when she has completed the retrieval of her belongings from the Round Hill Road property." (Footnote added.)
The plaintiff had filed two motions to access the marital residence prior to filing the motion at issue in this appeal. First, on May 15, 2017, the plaintiff filed a motion to access the marital residence to retrieve her summer clothing. At a hearing that same day, the trial court, Tindill, J. , orally granted the plaintiff's motion. Second, on November 21, 2017, the plaintiff filed a subsequent motion to access the marital residence to retrieve her winter clothing. The court did not rule on this motion. These motions are not at issue in this appeal.
"Our Family Wizard is a website offering web and mobile solutions for divorced or separated parents to communicate, reduce conflict, and reach resolutions on everyday coparenting matters ...." Buehler v. Buehler , 211 Conn. App. 357, 361 n.3, 272 A.3d 736, cert. denied, 343 Conn. 917, 274 A.3d 869 (2022).
On January 23, 2023, during the pendency of this appeal, the court, Heller, J. , issued a memorandum of decision dissolving the parties' marriage. In its memorandum of decision, the court stated: "As previously ordered by this court on June 9, 2021 ( ... on appeal to the Appellate Court at AC 44803), the plaintiff shall have access to the Round Hill Road property between the hours of 9 a.m. and 5 p.m. for two days to remove her personal property from the Round Hill Road property."
The access order in the final dissolution judgment provides, in full: "As previously ordered by this court on June 9, 2021 ( ... on appeal to the Appellate Court at AC 44803), the plaintiff shall have access to the Round Hill Road property between the hours of 9 a.m. and 5 p.m. for two days to remove her personal property from the Round Hill Road property. The plaintiff shall propose six dates between January 25, 2023, and February 24, 2023, on which she is available to remove her personal property from the Round Hill Road property. The plaintiff shall propose these dates to the defendant by email. The defendant shall select two of the six dates. He shall notify the plaintiff of his selection by email within twenty-four hours of receiving the plaintiff's email with her proposed dates. The two dates selected by the defendant shall be the dates on which the plaintiff shall have access to the Round Hill Road property to remove her personal property. The plaintiff shall be accompanied by an off-duty Greenwich police officer when she is at the Round Hill Road property to remove her personal property. The Greenwich police officer shall remain at the Round Hill Road property at all times while the plaintiff is at the property. The plaintiff shall pay for the services of the Greenwich police officer. The plaintiff may be accompanied by up to two other individuals to assist her in removing her belongings, neither of whom shall be Barbara Netter. These individuals shall be permitted to enter the Round Hill Road property with the plaintiff. The defendant may be present while the plaintiff is at the Round Hill Road property. The children shall not be present under any circumstances. The defendant shall arrange for the property to be unlocked and opened when the plaintiff arrives. The security system shall be unarmed. The lights shall be working. The heat shall be on. The defendant shall not photograph, record, or monitor by security camera or other means of surveillance the plaintiff's removal of her personal property from the Round Hill Road property. The defendant shall not interfere with the plaintiff's access to the Round Hill Road property or to her personal property. The defendant shall not remove, move, or hide any of the plaintiff's personal property to prevent her from removing it from the Round Hill Road property. The plaintiff shall promptly notify the defendant when she has completed removing her personal property from the Round Hill Road property." (Footnote omitted.)
The court's order largely mirrored its pendente lite access order, except that it permitted the defendant to "be present while the plaintiff is at the Round Hill Road property."
The pendente lite access order provided: "If the defendant is at home while the plaintiff is retrieving her belongings from the Round Hill Road property, he must remain in the pool house and shall not be in the residence."
At oral argument before this court, the defendant's counsel conceded that the final dissolution judgment rendered the pendente lite access order moot. The plaintiff's counsel agreed. We conclude that there is no practical relief that we may afford the defendant as to the pendente lite access order because it was superseded by the access order contained within the final dissolution judgment. See J. Y. v. M. R. , 215 Conn. App. 648, 662, 283 A.3d 520 (2022) (when interim order becomes superseded by final order, proper redress is to challenge final order). Therefore, the defendant's claims with respect to the pendente lite access order are moot. The defendant's redress is to challenge the propriety of the final dissolution judgment. He has filed an appeal from that judgment. See Netter v. Netter , Connecticut Appellate Court, Docket No. AC 46484 (appeal filed May 5, 2023). The defendant's preliminary statement of issues filed in that appeal includes a claim as to the access order in the dissolution judgment.
The defendant further contends that, even if his claims are moot, they are properly subject to appellate review under the "capable of repetition, yet evading review" exception to the mootness doctrine. We are not persuaded.
"[F]or an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." (Internal quotation marks omitted.) J. Y. v. M. R. , supra, 215 Conn. App. at 662–63, 283 A.3d 520.
The second prong of the exception requires us to analyze "(1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation. A requirement of the likelihood that a question will recur is an integral component of the capable of repetition, yet evading review doctrine. In the absence of the possibility of such repetition, there would be no justification for reaching the issue, as a decision would neither provide relief in the present case nor prospectively resolve cases anticipated in the future. ... The second prong does not provide an exception to the mootness doctrine when it is merely possible that a question could recur, but rather there must be a reasonable likelihood that the question presented in the pending case will arise again in the future ...." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., at 663, 283 A.3d 520.
In the present case, the defendant's counsel argued (1) that his claims are capable of repetition because the plaintiff could seek access to the marital residence in the future, and (2) that access orders are typical in dissolution actions, so it is possible that other individuals will raise similar claims. Although it is possible that the questions presented in this case will reoccur, the defendant has not demonstrated that there is a reasonable likelihood that they will. His concerns are purely speculative. See id. (concluding that defendant failed to satisfy second prong of "capable of repetition, yet evading review" exception where defendant failed to demonstrate reasonable likelihood that issue would recur); see also New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 502, 510, 970 A.2d 578 (2009) ("speculation and conjecture ... have no place in appellate review" (internal quotation marks omitted)). The defendant has not satisfied the second prong of the "capable of repetition, yet evading review" exception, and, therefore, we dismiss the portion of his appeal in which he has raised the present claims as moot.
Because the defendant does not satisfy the second prong of the "capable of repetition, yet evading review" exception, we need not address the first and third prongs. See J. Y. v. M. R. , supra, 215 Conn. App. at 662–63, 283 A.3d 520 ("[u]nless all three requirements are met, the appeal must be dismissed as moot").
II
The defendant next claims that the court improperly found him in contempt for violating the 2019 summer vacation provision of the parenting plan (2019 summer vacation provision). Specifically, he argues (1) that the provision did not clearly and unambiguously require him to propose his 2019 summer vacation dates on or before April 15, 2019, and (2) if the order did require him to propose his 2019 summer vacation dates by April 15, 2019, his failure to do so was not wilful. We are not persuaded.
We begin by setting forth the standard of review and relevant legal principles. "First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. ... This is a legal inquiry subject to de novo review. ... Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing ... 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." (Footnote omitted; internal quotation marks omitted.) Keller v. Keller , 158 Conn. App. 538, 545, 119 A.3d 1213 (2015), appeal dismissed, 323 Conn. 398, 147 A.3d 146 (2016). To the extent that the claim requires us to examine findings that were based on witness testimony, we note that "[t]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. ... We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did." (Internal quotation marks omitted.) Kirwan v. Kirwan , 187 Conn. App. 375, 392, 202 A.3d 458 (2019).
The following additional facts and procedural history are necessary for our resolution of this claim. After the parties filed competing motions for a pendente lite parenting plan and the court held a hearing thereon, the court issued a parenting plan on October 25, 2018. The parenting plan set forth a detailed parenting schedule, including the 2019 summer vacation provision as follows: "Each party shall have ten consecutive days of vacation with the children during the school summer vacation. Each party's summer vacation parenting time shall begin on a Friday at 4 p.m. and shall end on the second Monday thereafter at 4 p.m., for a total of ten days. The parties shall exchange proposed vacation dates in writing no later than April 15, 2019. In the event that the parties cannot agree on dates, the plaintiff shall have the right of first selection in 2019 for her summer vacation parenting time. If the plaintiff does not notify the defendant in writing of her chosen summer vacation dates by April 15, 2019, the defendant may select the dates for his summer vacation parenting time in writing, and that selection shall be binding on both parties. The plaintiff may not schedule summer vacation parenting time that would interfere with the defendant's Father's Day parenting time."
On August 8, 2019, the plaintiff filed a motion for contempt alleging that the defendant violated the parenting plan by failing to propose his 2019 summer vacation dates by April 15, 2019. Her motion stated, in relevant part: "On April 15, 2019, the plaintiff provided her summer vacation days to the defendant of Friday, August 2, 2019, at 4 p.m. to Monday, August 12, 2019, at 4 p.m. The plaintiff later informed the defendant that she was taking the children to California for her vacation. On April 16, 2019, the defendant responded to the plaintiff that he had no objection to her summer vacation dates. The defendant failed to propose or otherwise select his summer vacation dates by April 15, 2019. On May 27, 2019, the defendant admitted to the plaintiff that he had not made a selection for his summer vacation days. Also on May 27, 2019, the defendant led the plaintiff to believe that he was selecting, as his summer vacation, the ten days immediately following the plaintiff's summer vacation. This was the first time that the defendant in any way indicated the dates on which he was planning to take his summer vacation. On August 6, 2019, nearly four months after the April 15, 2019 deadline, the defendant told the plaintiff that his summer vacation would begin on Friday, August 23, 2019, at 4 p.m. until September 2, 2019, rather than the ten days following the plaintiff's summer vacation. The minor children begin school on September 3, 2019, and the defendant's newly chosen summer vacation days conflict with the children's back-to-school routine and activities." (Emphasis omitted.) In response, on August 16, 2019, the defendant filed a motion for enforcement of his 2019 summer vacation and clarification of court orders. In support of his motion, the defendant stated that he began discussing possible 2019 summer vacation destinations as early as December, 2018. He included several Our Family Wizard messages dated in May and June, 2019, that discuss the possibility of taking the children to London or Hawaii for summer vacation. The defendant contends that his ability to select vacation dates depended on the plaintiff's consent to London and/or her travel plans to California. At the hearings, the court heard testimony and received documentary evidence on the motion for contempt.
In its June 9, 2021 memorandum of decision, the court found the defendant in contempt for violating the 2019 summer vacation provision of the parenting plan. The court then set forth the relevant language contained within the parenting plan, specifically, that the parties "shall exchange proposed vacation dates in writing no later than April 15, 2019." The court found that "[t]he defendant did not advise the plaintiff until August 6, 2019, that his summer vacation parenting time would be from August 23, 2019, until September 2, 2019." The court further found "by clear and convincing evidence that the defendant had notice of the provisions of [the] October, 2018 parenting plan regarding 2019 summer vacation parenting time and that these provisions of the parenting plan are clear and unambiguous." Finally, the court found "that the defendant wilfully violated the clear and unambiguous orders of the court by failing to select his 2019 summer vacation period on or before April 15, 2019. The defendant has offered no evidence to justify or excuse his violation of the court's order." We first address whether the court properly determined that the 2019 summer vacation provision of the parenting plan is clear and unambiguous. The defendant claims that the parenting plan does not clearly and unambiguously require him to propose his 2019 summer vacation dates by April 15, 2019. Rather, the defendant asserts that the parenting plan, at most, requires the parties to begin "to try to reach an agreement on summer vacation periods" by April 15, 2019. We are not persuaded. As previously discussed, the 2019 summer vacation provision states that "[t]he parties shall exchange proposed vacation dates in writing no later than April 15, 2019." This order is clear and unambiguous. The 2019 summer vacation provision does not require the parties to provide their vacation travel plans by April 15, 2019. The location to which the parties intend to travel during their vacation is wholly unrelated to the requirement that they provide each other with their proposed vacation dates by April 15, 2019. Accordingly, the court properly determined that the parenting plan clearly and unambiguously requires the parties to exchange their proposed 2019 summer vacation dates by April 15, 2019.
In further support of his position that the contempt finding was improper, the defendant directs our attention to three other provisions in the parenting plan: the parenting plan requires the parties to consult and make reasonable efforts to agree about parenting time, the plan requires each party to seek consent of the other party before traveling internationally with the children, and, finally, the plan addresses the parties' 2019 spring vacation time with the children. Although we recognize that we should interpret individual provisions of the parenting plan ordered by the court mindful of its "construction as a whole"; see, e.g., Tannenbaum v. Tannenbaum , 208 Conn. App. 16, 25, 263 A.3d 998 (2021) ; the defendant fails to demonstrate how the existence of these three provisions as part of the multifaceted parenting plan renders the trial court's contempt finding with respect to the requirement to propose vacation dates "no later than April 15, 2019," improper.
We next turn to the question of whether the defendant wilfully violated the parenting plan. "To impose contempt penalties, whether criminal or civil, the trial court must make a contempt finding, and this requires the court to find that the offending party wilfully violated the court's order; failure to comply with an order, alone, will not support a finding of contempt. ... Rather, to constitute contempt, a party's conduct must be wilful. ... A good faith dispute or legitimate misunderstanding about the mandates of an order may well preclude a finding of wilfulness. ... Whether a party's violation was wilful depends on the circumstances of the particular case and, ultimately, is a factual question committed to the sound discretion of the trial court. ... Without a finding of wilfulness, a trial court cannot find contempt and, it follows, cannot impose contempt penalties." (Internal quotation marks omitted.) Hall v. Hall , 182 Conn. App. 736, 747, 191 A.3d 182 (2018), aff'd, 335 Conn. 377, 238 A.3d 687 (2020). "[T]his court will not disturb the trial court's orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... [E]very reasonable presumption will be given in favor of the trial court's ruling, and [n]othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference." (Internal quotation marks omitted.) Giordano v. Giordano , 203 Conn. App. 652, 657, 249 A.3d 363 (2021).
In the present case, the court found that "[t]he defendant did not advise the plaintiff until August 6, 2019, that his summer vacation parenting time would be from August 23, 2019, until September 2, 2019.... [T]he defendant wilfully violated the clear and unambiguous orders of the court by failing to select his 2019 summer vacation period on or before April 15, 2019. The defendant has offered no evidence to justify or excuse his violation of the court's order." The defendant contends that his delay in providing 2019 summer vacation dates, however, was not wilful. We conclude that the court properly determined that the defendant's violation of the 2019 summer vacation provision of the parenting plan was wilful. As discussed previously, the parenting plan requires the parties to provide their proposed 2019 summer vacation dates no later than April 15, 2019. The court found that the defendant did not comply by April 15, 2019, and instead delayed until August 6, 2019, nearly four months after the April 15, 2019 deadline, to propose taking the children on vacation beginning August 23, 2019. This finding is supported by the record. Accordingly, we conclude that the court did not abuse its discretion in finding the defendant in contempt of its clear and unambiguous order in light of the defendant's failure to provide a factual basis to explain his noncompliance with that order.
The defendant argues that in December, 2018, he began discussing the possibility of taking the children to London for their 2019 summer vacation but could not have solidified dates without the plaintiff's consent. He further claims that when he learned the plaintiff would be taking the children to California, he began discussing the possibility of meeting the children in California and taking them to Hawaii, but he could not have provided the plaintiff with proposed vacation dates until knowing the plaintiff's travel plans. As previously stated, these contentions go to the issue of travel plans, which is unrelated to the requirement that the defendant provide his proposed 2019 summer vacation dates by April 15, 2019.
The portion of the appeal challenging the pendente lite access order is dismissed as moot; the judgment of contempt is affirmed.
In this opinion the other judges concurred.