Maureen J. Khan v. Jonathan K. Hillyer (2010)

MEMORANDUM OF DECISION REGARDING MOTION (# 201)

A review of the record reveals a most contentious custody and visitation matter which was initiated on January 2, 2001.   The court, Boland, J., issued a most comprehensive memorandum of decision (183) regarding custody and visitation.   The instant motion for contempt alleges that the plaintiff has violated those court orders and failed to comply in the following respects:

a) she has failed to attend the Transitions In Parenting supervised visitation program and

b) she has failed to submit to a psychological evaluation with Dr. Freedman.

On December 22, 2009, the parties appeared, with counsel and the court heard testimony and argument from both parties, Dr. Freedman and from the Guardian ad litem (further referred to as “GAL”).

The Court finds proven by a fair preponderance of the evidence of the following:

a) The parties were ordered to enroll themselves and the child in the Transitions In Parenting supervised visitation program (TIPS).   The defendant father fully complied with said order.

b) The plaintiff mother attempted to enroll in said program.   She was interviewed in February 2009 for approximately one hour.   Thereafter, she returned for the follow-up appointment with the father and child but for unknown reasons, the meeting did not take place;  either she or the agency got the date or time wrong.   She testified that she never heard from them again and did not pursue the matter.

c) TIPS is no longer willing or able to provide services to this family.

d) The parties were ordered to complete a psychological evaluation with a psychologist suggested by the court.   When the psychologists suggested by the court were unable or unwilling to provide services to this family, the GAL suggested Dr. Bruce Freedman.   It is unclear from the record if the court ordered the parties to utilize Dr. Freedman but the court approved the payment of Dr. Freedman's fees for the mother and child by the state at state rates.

e) The mother was contacted repeatedly by Dr. Freedman in an effort to schedule an appointment.   The mother perceived his continuous and repeated efforts as harassment and obsessive behavior on doctor's part.   As a result, she initiated a meeting at the Joshua Place, where the child receives therapy.   At said meeting, attended by the GAL, the mother believed that another psychologist, recommended and provided by the Joshua Place, would be acceptable to the court.   As a result, the mother and the child underwent psychological evaluations and reports were produced.

f) The father underwent a psychological evaluation with Dr. Freedman and a report was produced at his own expense.

g) The participation in TIPS and the psychological evaluations were prerequisites to this matter returning to the Family Relations Office for a completion of its evaluation and for an ultimate hearing on the issue of renewed access by the father.

The question presented is whether the mother is in contempt of court given these facts.   Civil contempt in family matters is governed by Practice Book § 25-27.  “Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.”  In re Leah S., 284 Conn. 685, 692 (2007).   The movant has the burden of proof to show, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.  Isler v. Isler, 50 Conn.App. 58, 66-69 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 1 (2001).   Moreover, “a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful.”  Wilson v. Wilson, 38 Conn.App. 263, 275-76 (1995).

In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt.   The court must find that there was a violation of said order and that the violation was willful.   Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding.  In re Leah S., 284 Conn. 685, 693-94 (2007).  “Even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988).   Even though a party's actions did not constitute contempt, a court's remedial orders were well within its general remedial discretion.   Fitzgerald v. Fitzgerald, 16 Conn.App. 458, 553 (1988).   On the other hand, “[t]he inability of [a party] to obey an order of the court, without fault on his own part is a good defense to a charge of contempt.”  Tobey v. Tobey, 165 Conn. 742, 746 (1974).   The burden is on the alleged contemnor to prove inability to comply.  Perry v. Perry, 222 Conn. 799, 805 (1992).  “[T]he trial court's continuing jurisdiction to effectuate its prior judgments, either by summarily ordering compliance with a clear judgment or by interpreting an ambiguous judgment and entering orders to effectuate the judgment as interpreted, is grounded in its inherent powers, and is not limited to cases wherein the noncompliant party is in contempt, family cases, cases involving injunctions, or cases wherein the parties have agreed to continuing jurisdiction.”  AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 246, 796 A.2d 1164 (2002).  “In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with the court order.”  (Citations omitted;  internal quotation marks omitted.)  Clement v. Clement, 34 Conn.App. 641, 647, 643 A.2d 874 (1994);  see also McGuire v. McGuire, 102 Conn.App. 79, 89, 924 A.2d 886 (2007).

Wherefore, the court finds that the plaintiff mother is not in contempt of the court orders.   Each party has undergone a psychological evaluation and reports have been prepared.   For whatever reason, the participation in the TIPS program has not been completed and will not be accomplished in the foreseeable future.

ORDERS:

1. This case shall return to the Family Relations Office so that its evaluation can be completed.

2. The parties will fully cooperate with the Family Relations Office.

3. Counsel for the parties will, within seven days, select a trial date for a hearing on the merits of father's request for access with the child.   Said date shall be scheduled 30 days subsequent to the anticipated completion of the family relations evaluation.

Shluger, J.

Shluger, Kenneth L., J.