Opinion
FSTFA124022416S
04-04-2018
ZHE ZHENG v. FEIFEI XIA
UNPUBLISHED OPINION
OPINION
HELLER, J.
The marriage of the plaintiff Zhe Zheng and the defendant Feifei Xia was dissolved on July 23, 2013. The dissolution judgment (Novack, J.T.R.) (# 162.55) incorporated by reference the parties’ separation agreement, dated July 18, 2013 and filed on July 23, 2013 (the July 2013 separation agreement) (# 161.00). On May 6, 2015, the plaintiff filed a motion for modification, postjudgment (# 193.00). The plaintiff sought to modify his parenting time with the parties’ son Brian under the July 2013 separation agreement because he had moved to New Jersey. The plaintiff’s parenting time was modified on August 5, 2015 by order of the court (Novack, J.T.R.) (the August 2015 order) (# 201.00).
On May 1, 2017, the plaintiff filed four motions for contempt, postjudgment (# 216.01; # 216.02; # 216.03; # 216.04). The plaintiff seeks orders holding the defendant in contempt for violating various provisions of the July 2013 separation agreement and the August 2015 order. The defendant filed an objection and a memorandum of law in opposition to the plaintiff’s motions for contempt, postjudgment on May 26, 2017 (# 218.00).
On June 14, 2017, the defendant filed an affidavit regarding service of the plaintiff’s motions for contempt, postjudgment (# 220.00) in which she contends that she was not served with the motions, contrary to the return of service from State Marshal Robert M. Wolfe, filed on June 2, 2017 (# 219.00). The court finds that the defendant was properly and timely served in advance of the hearing on the plaintiff’s postjudgment motions.
The parties, both of whom were representing themselves, were before the court on December 6, 2017 for a hearing on the plaintiff’s four postjudgment motions for contempt. The court heard testimony from each party, reviewed the exhibits that were admitted into evidence, took judicial notice of the contents of the court file, and reserved decision at that time. The court advised the parties that they could file post-hearing memoranda by January 5, 2018 if they chose to do so. Neither party filed a memorandum following the hearing.
I
Pursuant to Article II, paragraph 2.1 of the July 2013 separation agreement, the parties have joint legal custody of Brian, and the defendant has primary physical custody. Paragraph 2.7 of the July 2013 separation agreement provides that " [b]y agreeing to joint legal custody of the minor child, the parties agree that they shall confer in advance with each other on all decisions pertaining to the child’s health, welfare, education and religion, with a view toward arriving at a harmonious policy calculated to promote the child’s best interest. As such, neither party shall unilaterally arrive at any decisions as to any issues pertaining to the child’s health (including medical and dental treatments, and procedures), welfare, education and religion."
The plaintiff contends in his first motion for contempt, postjudgment (# 216.01) that the defendant has violated paragraph 2.7 by making decisions regarding Brian’s education unilaterally- specifically, by enrolling Brian in the Waterside School, a private school in Stamford, for pre-kindergarten- without consulting with him first. The plaintiff testified that he was unaware that the defendant intended to send Brian to the Waterside School until he received a FedEx package from her on August 6, 2016 with the school’s enrollment information. In response, the defendant claims that she tried for a year before Brian’s fifth birthday to communicate with the plaintiff about their son’s education, but the plaintiff never responded to her. She offered an email dated June 8, 2015 as evidence of her efforts to contact the plaintiff. According to the defendant, the plaintiff did not respond to her email, and he has no interest in Brian’s education.
Brian is now in kindergarten at the Waterside School.
" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Citation omitted; internal quotation marks omitted.) Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992). " 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 ... Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt ..." (Emphasis in original; citations omitted; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). " In a civil contempt proceeding, the movant has the burden of establishing ... the existence of a court order and noncompliance with that order ..." (Citation omitted; internal quotation marks omitted.) Marshall v. Marshall, 151 Conn.App. 638, 651, 97 A.3d 1 (2014). Indirect civil contempt, as is alleged here, must be proven by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015). " To constitute contempt, a party’s conduct must be wilful ... Noncompliance alone will not support a judgment of contempt." (Citations omitted; internal quotation marks omitted.) Oldani v. Oldani, 132 Conn.App. 609, 625-26, 34 A.3d 407 (2011), abrogated in part on other grounds by Brody v. Brody, supra, 315 Conn. at 316.
" [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995). " A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor’s nonpayment was wilful." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). " [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 order." (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn.App. 75, 82, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).
The court finds by clear and convincing evidence that the defendant had notice of paragraph 2.7 of the July 2013 separation agreement, and that the provisions of paragraph 2.7 of the July 2013 separation agreement are clear and unambiguous. The court further finds that the plaintiff has met his burden of establishing by clear and convincing evidence that the defendant wilfully violated paragraph 2.7 of the July 2013 separation agreement when she enrolled Brian in the Waterside School without conferring with him in advance. The defendant was not entitled to make that decision unilaterally. Her June 8, 2015 email, sent to the plaintiff more than a year before Brian’s enrollment in the Waterside School, refers generally to Brian’s elementary school enrollment and does not demonstrate a good faith effort to confer with the plaintiff in advance regarding whether Brian should attend the Waterside School. Accordingly, the court finds the defendant in contempt of the court’s order set forth in paragraph 2.7 of the July 2013 separation agreement. The court will enter remedial orders below.
II
In his second motion for contempt, postjudgment (# 216.02), the plaintiff alleges that the defendant has violated the regular parenting time provisions under the August 2015 order and the holiday parenting time provisions of the July 2013 separation agreement. The plaintiff contends that the defendant has scheduled weekend activities for Brian that interfere with his regular parenting time, without consulting with him in advance. He also claims that the defendant has not permitted him to have holiday parenting time with Brian.
Regular parenting time: The plaintiff originally had parenting time with Brian in a two-week cycle- from Friday at 6:30 p.m. to Monday at 10:30 a.m. in Week 1, and from Friday at 6:30 p.m. to Saturday at 7:30 p.m. in Week 2- under paragraph 2.2 of the July 2013 separation agreement. The plaintiff moved to modify his parenting time in May 2015 because he had moved to New Jersey (# 193.00). The plaintiff’s parenting time was modified by the August 2015 order (# 201.00). He currently has parenting time with Brian on the first weekend of each month from Saturday at 10:00 a.m. to Sunday at 4:30 p.m. The August 2015 order further provides that the plaintiff may see Brian on other weekends by agreement with the defendant; however, the plaintiff has not had this additional parenting time to date.
The plaintiff claims that the defendant has scheduled weekend activities for Brian without discussing them with him in advance. Brian currently has soccer and ice skating every Saturday and Chinese School for three hours on Sunday. These activities interfere with the plaintiff’s regular parenting time. The plaintiff suggested to the defendant that he switch his parenting time to a weekend on which these activities were not scheduled (such as a holiday weekend), or that he have parenting time on two Saturdays each month rather than on Saturday and Sunday. According to the plaintiff, the defendant is unwilling to change Brian’s weekend activities or the parenting time schedule. The defendant contends that the plaintiff has consistently refused to see Brian on weekends and holidays and during summer vacation.
The court finds by clear and convincing evidence that the defendant had notice of the August 2015 order, and that the parenting time provisions of the August 2015 order are clear and unambiguous. The plaintiff has failed to meet his burden, however, of establishing by clear and convincing evidence that the defendant wilfully violated the August 2015 order when she scheduled weekend activities for Brian that interfere with the plaintiff’s regular parenting time. The court (Novack, J.T.R.) noted when entering the August 2015 order that " [c]hildren’s orders [change] as they get older because various things happen. He goes to school full-time, he has sports, he has social engagements, dad’s schedule changes. It’s flexible. It moves. So I’m just going to enter orders as of today, and that you can come back and change when the child gets a little older." (# 201.00.) Accordingly, the court declines to hold the defendant in contempt of the August 2015 order.
Although the court does not hold the defendant in contempt, the court finds that the defendant failed to discuss Brian’s weekend activities with the plaintiff in advance despite their impact on the plaintiff’s regular parenting time. The court expects that issues will continue to arise as Brian gets older and has more weekend activities that interfere with the plaintiff’s regular parenting time. Under paragraph 2.10 of the July 2013 separation agreement, the parties agreed to use Focus on Kids or a similar agency as a parenting coordinator for all issues relating to parenting Brian. Therefore, the parties are directed to make a good faith effort to address the conflict between Brian’s weekend activities and the plaintiff’s regular parenting time with the assistance of a parenting coordinator pursuant to paragraph 2.10.
Holiday parenting time: Paragraph 2.14 of the July 2013 separation agreement sets forth a detailed holiday parenting time schedule which supersedes the regular parenting schedule. The defendant claims that since the entry of the August 2015 order, the plaintiff has only weekend parenting time and does not have holiday parenting time. The court does not agree. Nothing in the plaintiff’s May 2015 motion for modification, postjudgment, or the August 2015 order addresses in any respect the plaintiff’s holiday parenting time with Brian. The holiday parenting time provisions set forth in the July 2013 separation agreement were not modified by the August 2015 order.
The court finds by clear and convincing evidence that the defendant had notice of paragraph 2.14 of the July 2013 separation agreement, and that the provisions of paragraph 2.14 of the July 2013 separation agreement are clear and unambiguous. The court further finds that the plaintiff has met his burden of establishing by clear and convincing evidence that the defendant wilfully violated paragraph 2.14 of the July 2013 separation agreement when she refused to allow the plaintiff to have holiday parenting time with Brian following the entry of the August 2015 order. Accordingly, the court finds the defendant in contempt of the court’s order set forth in paragraph 2.14 of the July 2013 separation agreement. The court will enter remedial orders below.
III
In his third motion for contempt, postjudgment (# 216.03), the plaintiff claims that the defendant is not in compliance with the July 2013 separation agreement regarding the dependency exemption for Brian. Paragraph 12.4 provides that " [c]ommencing with the 2013 and every odd year thereafter, the Plaintiff shall claim the minor child as a dependent for tax purposes. For so long as she may benefit from the tax credit, the Defendant may claim the minor child as a dependent in 2014 and every even year thereafter." The plaintiff contends that the defendant has refused to sign and provide IRS Form 8332 to him in violation of the July 2013 separation agreement. In response, the defendant maintains that she has fully complied with the July 2013 separation agreement, which does not expressly require her to sign and provide IRS Form 8332 to the plaintiff.
In contending that she is not required to sign IRS Form 8332 under paragraph 12.4 of the July 2013 separation agreement, the defendant has overlooked Paragraph 20.1 of the agreement, which provides that " [e]ach of the parties hereby agrees to sign any documents that may be necessary or desirable to effectuate or implement any of the provisions of this Agreement on the request of the other party." Pursuant to paragraph 20.1, the defendant was required to sign IRS Form 8332 at the plaintiff’s request in order to implement the provisions of paragraph 12.4.
The court finds by clear and convincing evidence that the defendant had notice of paragraphs 12.4 and 20.1 of the July 2013 separation agreement, and that the provisions of paragraphs 12.4 and 20.1 of the July 2013 separation agreement are clear and unambiguous. The court further finds that the plaintiff has met his burden of establishing by clear and convincing evidence that the defendant wilfully violated paragraphs 12.4 and 20.1 of the July 2013 separation agreement when she refused to sign and provide IRS Form 8332 as requested by the plaintiff. Accordingly, the court finds the defendant in contempt of the court’s orders set forth in paragraphs 12.4 and 20.1 of the July 2013 separation agreement. The court will enter remedial orders below.
IV
Under paragraph 2.13 of the July 2013 separation agreement, " [i]n the event that either parent will be away from the child for any period of four (4) hours or more during his or her scheduled parenting time, the other parent shall have the first option of caring for the child during that time." The plaintiff contends in his fourth motion for contempt, postjudgment (# 216.04) that the defendant has repeatedly ignored this provision of the July 2013 separation agreement and incurred child care expenses for Brian when he could have cared for Brian himself. According to the defendant, the plaintiff has refused to take care of Brian when she has asked him to do so. She claims that he is obligated to pay his share of the child care expenses for Brian.
The court finds by clear and convincing evidence that the defendant had notice of paragraph 2.13 of the July 2013 separation agreement, and that the provisions of paragraph 2.13 of the July 2013 separation agreement are clear and unambiguous. The plaintiff has failed to meet his burden, however, of establishing by clear and convincing evidence that the defendant wilfully violated paragraph 2.13 of the July 2013 separation agreement when she did not give him the opportunity to care for Brian before arranging for child care. The defendant’s inability or unwillingness to communicate with the plaintiff regarding child care for Brian does not rise to the level of a wilful violation of an order of the court, particularly where the plaintiff is now located in New Jersey and not in Connecticut. Accordingly, the court declines to hold the defendant in contempt of the court’s orders set forth in paragraph 2.13 of the July 2013 separation agreement.
Although the court does not hold the defendant in contempt, the court finds that the defendant must make more than a token effort to provide the plaintiff with the opportunity to care for Brian if she is unable to do so for more than four hours during her parenting time. The apparent breakdown in communication between the parties does not excuse the defendant’s failure to permit the plaintiff to exercise his right to care for Brian pursuant to paragraph 2.13 of the July 2013 separation agreement. The parties are directed to address their compliance with paragraph 2.13 with a parenting coordinator pursuant to paragraph 2.10 of the July 2013 separation agreement.
V
The court has fully considered the applicable statutory criteria and case law, the evidence, the demeanor and credibility of the parties, and the contents of the court file judicially noticed in making the findings set forth above and in reaching the decisions that are reflected in the orders that issue below.
1. The plaintiff’s first motion for contempt, postjudgment (# 216.01) is hereby GRANTED. The defendant is found to be in contempt of the court’s orders set forth in paragraph 2.7 of the July 2013 separation agreement. It is further ORDERED as follows:
(a) The defendant shall not enroll Brian in elementary school for the 2018-2019 academic year without conferring in advance with the plaintiff pursuant to paragraph 2.7 of the July 2013 separation agreement.
(b) If the parties are unable to agree on the elementary school that will be best for Brian, they shall consult with a parenting coordinator as required by paragraph 2.10 of the July 2013 separation agreement. Such consultation shall take place no later than June 1, 2018.
2. The plaintiff’s second motion for contempt, postjudgment (# 216.02) is hereby GRANTED IN PART and DENIED IN PART. The defendant is found to be in contempt of the court’s orders set forth in paragraph 2.14 of the July 2013 separation agreement with respect to the plaintiff’s holiday parenting time. It is further ORDERED as follows:
(a) The parties shall make a good faith effort to address the conflict between Brian’s weekend activities and the plaintiff’s regular parenting time with the assistance of a parenting coordinator pursuant to paragraph 2.10 of the July 2013 separation agreement. The parties shall consult with a parenting coordinator no later than June 1, 2018.
(b) The holiday parenting time schedule set forth in paragraph 2.14 of the July 2013 separation agreement remains in full force and effect.
3. The plaintiff’s third motion for contempt, postjudgment (# 216.03) is hereby GRANTED. The defendant is found to be in contempt of the court’s orders set forth in paragraphs 12.4 and 20.1 of the July 2013 separation agreement. It is further ORDERED as follows:
(a) The defendant shall sign and provide IRS Form 8332 to the plaintiff on or before April 13, 2018 for the 2017 tax year.
(b) With respect to the 2018 tax year and continuing thereafter until Brian can no longer be claimed as a dependent by either party, the party not claiming Brian as a dependent in any given year shall sign and provide to the other party IRS Form 8332, or any other declaration required by the Internal Revenue Service, on or before February 1st of each year to implement the terms of this order.
4. The plaintiff’s fourth motion for contempt, postjudgment (# 216.04) is hereby DENIED. It is further ORDERED as follows:
(a) The defendant shall make a good faith effort to provide the plaintiff with the opportunity to care for Brian if she is unable to do so for more than four hours during her parenting time as required by paragraph 2.13 of the July 2013 separation agreement.
(b) The parties shall address their compliance with paragraph 2.13 of the July 2013 separation agreement with a parenting coordinator pursuant to paragraph 2.10 of the agreement. They shall consult with a parenting coordinator no later than June 1, 2018.