Whitney Mazzei v. Antohony Mazzei (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT (POSTJUDGMENT)

A hearing on the defendant's Motion for Contempt dated December 15, 2009, was held on January 11, 2010.   The agreement of the parties, filed February 25, 2009, and made an order of the court, addressed the issues raised in said motion.   The defendant and the plaintiff testified.

In reaching its conclusions, the court has fairly and impartially considered all the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, measured the probative force of conflicting evidence, applied relevant statutory criteria and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.

The defendant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and non-compliance with that order.   Issler v. Issler, 50 Conn.App. 58, 66-69 (1998), rev'd on other grounds, 250 Conn. 226 (1999).  “The contempt remedy is particularly harsh and may be founded solely upon some clear and express direction of the court.”   Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7 (2001).   The 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 (1995).

Court orders must be complied with until modified by the court.  Eldridge, supra.   Parties to a court order must not resort to “self-help.”  Sablosky v. Sablosky, 258 Conn. 713, 720 (2001).

The court order of February 25, 2009 sets forth the so-called “parenting schedule.”   The minor child was born March 19, 2008.  “A good faith dispute ․ over the terms of [an order] may prevent a finding that [conduct] was wilful.”  Eldridge, supra at 529.   A party against whom a contempt claim has been raised must have the opportunity “to demonstrate that his failure to comply with the trial court was excusable.”  Bryant v. Bryant, 228 Conn. 630, 637 (1994).

Paragraph 5.2.3. of the parenting schedule describes a requirement of hair-follicle tests for the defendant and the plaintiff.   The testimony produced and the reasonable and logical inferences therefrom, indicates that said tests addressed the defendant's use of cocaine.   According to the agreement, the defendant is afforded unsupervised visitation based on negative hair-follicle tests.   Although the defendant eventually satisfied the conditions that would permit unsupervised visitation, his arrest and subsequent prosecution for operating a motor vehicle while under the influence in December 2009 caused the plaintiff to deny unsupervised visitation to the defendant.   The defendant has alleged the plaintiff is in violation of the clear and unambiguous language of the court order.   The defendant had also been arrested eight months earlier, in May 2009, for operating a motor vehicle while under the influence.   The defendant submitted to breathalyzer tests in each arrest.   Both cases are currently pending, and the plaintiff concluded that the defendant's second arrest for said offense precluded unsupervised visitation pursuant to Section 5.2.3. of the court order.   She is concerned for her child's safety.   The plaintiff also witnessed the defendant suffer what she described as a “seizure.”   The event in question was characterized as violent “convulsions” that rendered the defendant unconscious.   The plaintiff summoned an ambulance to assist the defendant.   The defendant characterized said episode as a “panic attack” or a reaction to pain medication.   Given the existence of certain of the terms contained in section 5.2.3., related to the defendant's testing, and his two pending criminal matters related to operating under the influence, the plaintiff claims that the defendant has failed to demonstrate wilful non-compliance with a court order.   In addition, the plaintiff claims any failure to comply with the court order was excusable.   However, the plaintiff did not file a request for an emergency hearing with regard to a motion for modify visitation.  “A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed.”  Gina M.G. v. William C., 77 Conn.App. 582, 592 (2003).   A good faith misunderstanding as to the proper interpretation of an order may play a role in the finding of willfulness.   See Meehan v. Meehan, 40 Conn.App. 107 (1996).

Based on the foregoing, the court is not persuaded that the plaintiff's failure to comply with the court order is inexcusable.   The court cannot conclude that interpreting paragraph 5.2.3. of the agreement to include the circumstances presented herein demonstrates wilful non-compliance.   The plaintiff's conduct must be placed within the context of the reasonable and logical inferences to be drawn from the nature of the hair-follicle testing within the agreement, the age of the minor child, and the defendant's alleged conduct.

Pursuant to Connecticut General Statutes § 46b-1 and § 46b-56, the court continues to have jurisdiction over matters involving custody and visitation issues, and shall enter orders that serve the best interests of the child.   The allegations of operating under the influence with regard to the defendant are, at this point, difficult for the court to fully assess.   The court's concern for the best interests of the child, and the child's safety, however, is heightened.   The child's safety is of paramount concern for the court, particularly within the context of a court order requiring hair-follicle tests by the defendant and his two arrests for operating under the influence within the past eight months.

The defendant's Motion for Contempt is denied.   Pursuant to Connecticut General Statutes §§ 46b-1 and 46b-56, and applying the best interests of the child standard, the court hereby orders that the defendant shall not operate a motor vehicle with the minor child in said vehicle until the criminal matters have been fully addressed, the issue of the need for alcohol treatment is addressed, and appropriate motion is made to the court.   If either party seeks further relief, an appropriate Motion to Modify should be filed.

ELPEDIO VITALE, J.

Vitale, Elpedio N., J.