Opinion
FSTFA176031861S
11-15-2018
Julie E. ZIEME v. Martin T.R. ZIEME
UNPUBLISHED OPINION
OPINION
HELLER, J.
The parties were before the court on June 21, 2018 for a hearing on three motions for contempt, postjudgment (# 113.00; # 114.00; # 120.00), filed by the plaintiff Julie E. Zieme. The plaintiff was represented by counsel. The defendant Martin T.R. Zieme represented himself. The hearing continued on July 26, 2018. Although the defendant had previously agreed to the July 26, 2018 hearing date, he did not appear at that time. The court found that the defendant had notice and proceeded with the hearing in his absence. The court heard testimony from the parties, reviewed the exhibits that were admitted into evidence, considered the arguments of counsel, and took judicial notice of the contents of the court file. The court found at the conclusion of the hearing that the plaintiff had sustained her burden of proving the defendant’s contempt by clear and convincing evidence and stated that this written memorandum of decision would follow.
I
The marriage of the parties was dissolved on August 31, 2017 (Novack J.T.R.) (# 110.00; # 111.55). The parties’ separation agreement, dated August 31, 2017 (the August 2017 separation agreement) (# 109.00), was incorporated by reference in the dissolution judgment.
On January 22, 2018, the plaintiff filed two motions for contempt, postjudgment (# 113.00; # 114.00). In the first motion for contempt, postjudgment (# 113.00), the plaintiff sought a finding of contempt against the defendant for his failure to pay child support pursuant to paragraph 5.2 of the August 2017 separation agreement. In the second motion for contempt, postjudgment (# 114.00), the plaintiff sought a finding of contempt for the defendant’s failure to provide proof of his life insurance coverage pursuant to paragraph 8.1 of the August 2017 separation agreement.
On March 5, 2018, the parties entered into a stipulation that addressed the plaintiff’s first and second postjudgment motions for contempt (the March 2018 stipulation) (# 117.00). The March 2018 stipulation provided that time was of the essence with respect to the defendant’s payment obligations set forth therein. The March 2018 stipulation was approved and so ordered by the court (Colin, J.) that day (# 117.01).
On May 24, 2018, the plaintiff filed a third motion for contempt, postjudgment (# 120.00), in which she contends that the defendant failed to pay the child support arrearage and counsel fees pursuant to the March 2018 stipulation. The plaintiff further alleges that the defendant’s child support arrears had increased since the March 2018 stipulation. She seeks an additional award of attorneys fees and costs pursuant to paragraph 15.2 of the August 2017 separation agreement and General Statutes § 46b-87.
The plaintiff’s first, second, and third motions for contempt, postjudgment are presently before the court.
II
In making the findings of fact set forth below, the court has credited the testimony of the plaintiff.
Child support: The parties are the parents of three children who are ages eleven, nine, and eight, respectively. Under paragraph 5.2 of the August 2017 separation agreement, the defendant was to pay child support to the plaintiff in the amount of $6,000 per month ($1,385 per week), beginning December 1, 2017. The March 2018 stipulation represented that the defendant had not paid any child support. The total arrearage through March 2018 was $24,000, which the defendant was to pay in two $12,000 installments under the March 2018 stipulation. The defendant did not make either installment payment notwithstanding the clause that time was of the essence. As of the June 21, 2018 hearing date, the defendant had paid child support for only one month-April 2018-and the total arrearage was $36,000. By the July 26, 2018 hearing date, the child support arrearage was $42,000.
Life insurance: Pursuant to paragraph 8.1 of the August 2017 separation agreement, the defendant was required to obtain and maintain life insurance with a face value of not less than $750,000 to secure his child support and any future post-majority educational support obligations. The plaintiff was entitled to receive proof that the defendant’s life insurance coverage was in effect on or about December 1 of each year. In the March 2018 stipulation, the defendant agreed to produce proof of his life insurance coverage not later than March 31, 2018. The plaintiff testified on June 21, 2018, and again on July 26, 2018, that she had not received any evidence that the defendant had obtained the life insurance required under paragraph 8.1 of the August 2017 separation agreement and the March 2018 stipulation.
Children’s expenses: The parties agreed in paragraph 5.3 of the August 2017 separation agreement to share equally the children’s unreimbursed medical and dental expenses, the cost of their extracurricular activities, and any qualifying child care expenses. Under the March 2018 stipulation, the defendant was obligated to pay $2,000 for his share of the children’s expenses no later than May 31, 2018. The plaintiff testified that the defendant had not paid the children’s expenses as provided in the August 2017 separation agreement and under the March 2018 stipulation. As of the July 26, 2018 hearing date, the defendant owed an additional $3,251 for his share of the children’s expenses. The total amount due as of that date was $5,251.
Attorneys fees: Paragraph 15.2 of the August 2017 separation agreement provided that "[i]n the event that it shall be determined by a court of competent jurisdiction that either party shall have breached any terms of this Agreement or of any court decree incorporating by reference or otherwise this Agreement or portions hereof and regardless of whether the party is adjudicated in contempt, the offending party shall pay to the other party reasonable attorneys fees, court costs and other expenses incurred in the enforcement of the provisions of this Agreement and/or of the provisions of this Agreement incorporated onto and made a part of any dissolution decree." The defendant agreed in the March 2018 stipulation to pay $3,500 toward the fees of the plaintiff’s counsel no later than May 31, 2018. As of the July 26, 2018 hearing date, the defendant had failed to make this payment.
III
"Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (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; 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 ..." (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." (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). "[I]nability to pay is a defense to a contempt motion. However, the burden of proving inability to pay rests upon the obligor." (Internal quotation marks omitted.) Marshall v. Marshall, 151 Conn.App. at 651.
The court finds by clear and convincing evidence that the defendant had notice of the orders set forth in the August 2017 separation agreement and the March 2018 stipulation, and that such orders are clear and unambiguous. The court also finds that the plaintiff has met her burden of establishing by clear and convincing evidence that the defendant wilfully violated the court’s orders regarding payment of child support, his share of the children’s expenses, and the attorneys fees incurred by the plaintiff, as well as his obligation to provide proof of life insurance coverage.
The defendant, who appeared only on the first day of the hearing, did not sustain his burden of proving that he had an inability to pay. To the contrary, the plaintiff offered evidence demonstrating the defendant’s lavish spending which indicated that he was able to pay his court-ordered obligations. The defendant is in contempt of clear and unambiguous orders of the court. The plaintiff’s motions for contempt, postjudgment (# 113.00; # 114.00; # 120.00) are hereby granted. Further orders are entered below.
IV
The plaintiff seeks an order of incarceration in view of the defendant’s wilful violation of the clear and unambiguous orders of the court. "[I]ncarceration may be imposed in a civil contempt proceeding under certain circumstances. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both." (Internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 766 n.12, 48 A.3d 16 (2012); Martocchio v. Savoir, 130 Conn.App. 626, 631, 23 A.3d 1282, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011). Nevertheless ... [a] contemnor still must have the opportunity to purge himself because it is a civil contempt." Eric S. v. Tiffany S., 143 Conn.App. 1, 10, 68 A.3d 139 (2013). "A trial court has the power even to incarcerate contemnors in civil contempt cases until they purge themselves ..." (Citations omitted.) Johnson v. Johnson, 111 Conn.App. 413, 426-27, 959 A.2d 637 (2008).
In view of the findings set forth above, the court finds that incarceration is an appropriate sanction for the defendant’s wilful violation of the court’s orders, and it orders that the defendant be incarcerated. The court’s order of incarceration is stayed, however, to provide the defendant an opportunity to purge the contempt. Accordingly, the defendant shall pay a purge amount of $17,000-which represents 20 percent of the child support arrearage as of July 26, 2018, plus the attorneys fees of $3,500 due by May 31, 2018 pursuant to the March 2018 stipulation, and his share of the children’s expenses through July 26, 2018, in the total amount of $5,251-to the plaintiff by certified or bank check, payable to Julie E. Zieme, or by wire transfer to the plaintiff’s account, on or before Wednesday, December 19, 2018 at 9:30 a.m. If the defendant pays the purge amount by certified or bank check, the check shall be delivered to the plaintiff so that she has good funds in hand as of that time. If the defendant pays the purge amount by wire transfer, the defendant shall also pay all fees and costs associated with the wire transfer.
The parties shall report to the court at 9:30 a.m. on Wednesday, December 19, 2018 to confirm that the plaintiff has received the purge amount from the defendant. In the event that the plaintiff has not received the purge amount from the defendant by 9:30 a.m. on December 19, 2018, the stay of the court’s order of incarceration shall be lifted, and the defendant shall be committed to the custody of the commissioner of the Connecticut department of corrections for a period of thirty days or until he has paid the purge amount, whichever is earlier.
Nothing in this decision shall relieve the defendant of his continuing obligation to pay child support pursuant to paragraph 5.2 of the August 2017 separation agreement. The defendant also remains obligated to pay the balance of the child support arrearage due as of July 26, 2018, in the amount of $33,600, and any child support arrearage that has accrued since that date. The defendant shall pay the balance of the child support arrearage due as of July 26, 2018 in four monthly installments of $8,400, commencing on January 1, 2019 and continuing on the first day of each month thereafter until paid in full.
V
The plaintiff seeks an additional award of attorneys fees for prosecuting the motions for contempt, postjudgment, pursuant to paragraph 15.2 of the August 2017 separation agreement and General Statutes § 46b-87. Her counsel submitted an affidavit of attorneys fees on June 21, 2018 reflecting attorneys fees due in the amount of $3,080 from the date of the March 2018 stipulation through June 18, 2018. His hourly rate is $350 per hour.
General Statutes § 46b-87 provides in pertinent part that "[w]hen any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person."
The court finds counsel’s hourly rate and the attorneys fees incurred to be reasonable. Counsel may submit a supplemental affidavit of attorneys fees to reflect additional time devoted to this matter on or before December 14, 2018, and the defendant shall file any objection thereto on or before December 24, 2018. Absent a timely objection, the court will order that the plaintiff’s attorneys fees be paid by the defendant within thirty days thereafter.
VI
The court has fully considered the applicable statutes, the relevant case law, the evidence, the demeanor and the credibility of the parties, the arguments of counsel, and the contents of the court file judicially noticed in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.
1. The plaintiff’s motions for contempt, postjudgment (# 113.00; # 120.00) are hereby GRANTED. The defendant is found to be in contempt of the clear and unambiguous orders of the court. It is further ORDERED as follows:
(a) The defendant is ORDERED to be incarcerated for his wilful violation of the court’s orders, which order is hereby STAYED until further order of the court to provide the defendant an opportunity to purge the contempt.
(b) The defendant shall pay a purge amount of $17,000-which represents 20 percent of the child support arrearage as of July 26, 2018, plus the attorneys fees of $3,500 due by May 31, 2018 pursuant to the March 2018 stipulation, and his share of the children’s expenses through July 26, 2018, in the total amount of $5,251-to the plaintiff by certified or bank check, payable to Julie E. Zieme, or by wire transfer to the plaintiff’s account, on or before Wednesday, December 19, 2018 at 9:30 a.m. If the defendant pays the purge amount by certified or bank check, the check shall be delivered to the plaintiff so that she has good funds in hand as of that time. If the defendant pays the purge amount by wire transfer, the defendant shall also pay all fees and costs associated with the wire transfer.
(c) The parties shall report to the court at 9:30 a.m. on Wednesday, December 19, 2018 to confirme that the plaintiff has received the purge amount from the defendant. In the event that the plaintiff has not received the purge amount from the defendant by 9:30 a.m. on December 19, 2018, the stay of the court’s order of incarceration shall be lifted, and the defendant shall be committed to the custody of the commissioner of the Connecticut department of corrections for a period of thirty days or until he has paid the purge amount, whichever is earlier.
(d) Nothing in this decision shall relieve the defendant of his continuing obligation to pay child support pursuant to paragraph 5.2 of the August 2017 separation agreement. The defendant also remains obligated to pay the balance of the child support arrearage due as of July 26, 2018, in the amount of $33,600, and any child support arrearage that has accrued since that date. The defendant shall pay the balance of the child support arrearage due as of July 26, 2018 in four monthly installments of $8,400, commencing on January 1, 2019 and continuing on the first day of each month thereafter until paid in full.
2. The plaintiff’s motion for contempt, postjudgment (# 114.00) is hereby GRANTED. It is further ORDERED that the defendant shall provide proof of life insurance coverage in the face amount of $750,000 to the plaintiff on or before December 19, 2018.
3. Counsel for the plaintiff may submit a supplemental affidavit of attorneys fees to reflect additional time devoted to this matter on or before December 19, 2018, and the defendant shall file any objection thereto on or before December 31, 2018. Absent a timely objection, the court will order that the plaintiff’s attorneys fees be paid by the defendant within thirty days thereafter.