Lisa Marzbanian v. Matthew J. Day (2010)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S APPEAL FROM THE FAMILY SUPPORT MAGISTRATE'S DECISION OF MAY 19, 2010

A review of the record reveals that the parties are the parents of a minor child, Kayla Marzbanian-Day born December 31, 2003.   The relevant preceding orders include an order dated July 16, 2004 wherein the defendant father was ordered to maintain “health care coverage to be provided only if available at a reasonable cost of no more than $_.” (No dollar figure was provided in the order.)   Thereafter, the parties entered into a written agreement dated August 9, 2005 which was incorporated by reference and made a court order wherein the father was ordered to pay child support in the amount of $116 per week, $14 per week on a child support arrearage, $20 per week on a day care arrearage and to pay “50% of all uncovered, unreimbursed medical expenses as well as qualified day care costs.”

Of particular interest is that the parties agreed on January 26, 2006 that the mother would maintain the medical insurance for the minor child and that the father would reimburse her for that expense.   It is undisputed that the father made those payments for approximately two years and then stopped.

On May 19, 2010, the parties appeared before the Family Support Magistrate relative to the plaintiff's motion for contempt (number 149) dated March 26, 2010 wherein the plaintiff claimed that the defendant was in contempt for his failure to pay one-half of the work related day care expenses and unreimbursed health expenses and failed to reimburse her the cost of the health insurance premiums.

At said hearing, the defendant father requested a continuance so that he could have his counsel present, a request which was denied since the court found that he did not have any risk of incarceration.   The court heard the matter, found the defendant in contempt and ordered him to make lump sum payments of $1,598.19 for the unreimbursed health insurance premiums, $1,574 for day care expenses and $95 for medical expenses (transcript page 48-49).

The defendant filed an appeal from the Magistrate's decision on June 10, 2010 alleging that the court erred in failing to grant the continuance which he requested, in finding him in contempt for failing to pay the health insurance premiums (which were not subject to a court order) and in finding him in contempt for failing to pay the day care and unreimbursed medical expenses.

LEGAL DISCUSSION

General Statutes § 46b-231(n) governs appeals from a Family Support Magistrate:

Appeal procedure.

(1) A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.

(2) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district in which the decision of the family support magistrate was rendered not later than fourteen days after filing of the final decision with an assistant clerk assigned to the Family Support Magistrate Division or, if a rehearing is requested, not later than fourteen days after filing of the notice of the decision thereon.   In a IV-D support case, such petitions shall be accompanied by a certification that copies of the petition have been served upon the IV-D agency as defined in subsection (b) of this section and all parties of record.   Service upon the IV-D agency may be made by the appellant mailing a copy of the petition by certified mail to the office of the Attorney General in Hartford.

(3) Within fourteen days after the filing of the petition, or within such further time as may be allowed by the court, the Family Support Magistrate Division shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding appealed from, which shall include the decision of the family support magistrate.   The court may require or permit subsequent corrections or additions to the record.

(4) The aggrieved party shall file with his appeal a statement that no transcript is required for the purpose of determining the issues raised on appeal or a statement that he has ordered a transcript.   A transcript may be filed by any party to an appeal and shall be filed within thirty days from the filing of said appeal unless the time for filing such transcript is extended by order of the Superior Court or the family support magistrate.   Costs of preparing the transcript shall be paid by the party ordering the preparation of the transcript.

(5) If, before the date set for hearing, application is made to the Superior Court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the family support magistrate, the Superior Court may permit additional evidence be taken before it upon conditions determined by the court.

(6) The appeal shall be conducted by the Superior Court without a jury and shall be confined to the record and such additional evidence as the Superior Court has permitted to be introduced.   The Superior Court, upon request, shall hear oral argument and receive written briefs.

(7) The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings.   The Superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is:  (A) In violation of constitutional or statutory provisions;  (B) in excess of the statutory authority of the family support magistrate;  (C) made upon unlawful procedure;  (D) affected by other error of law;  (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;  or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(8) Any order entered by the court pursuant to an appeal under this subsection may be retroactive to the date of the original order entered by the family support magistrate.

(9) Upon all such appeals which are denied, costs may be taxed in favor of the prevailing party at the discretion of the Superior Court, but no costs shall be taxed against the state.

Civil contempt in family matters is governed by practice book section 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).   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).

It is axiomatic that before a court can find an individual in contempt, the court must find that there was a clear and unambiguous order, that the order was disobeyed and that the disobedience was willful.   In the instant case, a review of the record reveals that there was a clear and unequivocal order that the defendant father pay 50% of all unreimbursed and uncovered medical expenses and work-related day care expenses.   Equally clear, is that the agreement to reimburse the plaintiff for the health insurance premiums was merely an agreement, prepared between the parties, with the assistance of the Guardian ad litem which was never made a court order.   A review of the record does not reveal any such order.   In response to a direct question from the court:  “was that health insurance payment arrangement ever made a court order?” the defendant father responded “no.”   The plaintiff mother responded “I don't know if it was made a court order.   I know it was an agreement between us ․” (Transcript page 34.)   Most telling perhaps is that the court itself observed, in reference to the agreement to reimburse the plaintiff for the health insurance premiums “this was a private agreement, sir.   Do you object to the court receiving this?”  (Transcript page 8.)

“[T]he matter of a continuance is traditionally within the discretion of the trial judge which will not be disturbed absent a clear abuse.”  De Repentigny v. De Repentigny, 121 Conn.App. 451, 455 (2010), State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986).

The court in Campbell v. Campbell, 120 Conn.App. 760 (2010) held:

The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel ․ There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.   The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied ․ [I]f the reasons given for the continuance do not support any interference with [a] specific constitutional right, the [reviewing] court's analysis will revolve around whether the trial court abused its discretion ․ Decisions to grant or to deny continuances are very often matters involving judicial economy, docket management or courtroom proceedings and, therefore, are particularly within the province of a trial court ․ Whether to grant or to deny such motions clearly involves discretion, and a reviewing court should not disturb those decisions, unless there has been an abuse of that discretion, absent a showing that a specific constitutional right would be infringed ․ “Our Supreme Court has articulated a number of factors that appropriately may enter into an appellate court's review of a trial court's exercise of its discretion in denying a motion for a continuance.   Although resistant to precise cataloguing, such factors revolve around the circumstances before the trial court at the time it rendered its decision, including:  the timeliness of the request for continuance;  the likely length of the delay;  the age and complexity of the case;  the granting of other continuances in the past;  the impact of delay on the litigants, witnesses, opposing counsel and the court;  the perceived legitimacy of the reasons proffered in support of the request;  [and] the defendant's personal responsibility for the timing of the request ․” (Citations omitted;  internal quotation marks omitted.)  Watrous v. Watrous, 108 Conn.App. 813, 827-28, 949 A.2d 557 (2008).  Id. at 764-5.

In denying the defendant's request for a continuance, the court observed “well, you knew it was down for today, for two months ․ I don't have an appearance from an attorney.   I don't have a call from an attorney, or a letter, or a motion for a continuance, and the source ordered a month ago after-a motion that's a couple of months old.   I'm going to hear what this is about.”   Transcript page 9-10.

CONCLUSION

The Family Support Magistrate did not abuse its discretion in failing to grant the defendant's oral request for a continuance at the commencement of the hearing.   The Family Support Magistrate did not abuse its discretion in its finding the defendant in contempt for his failure to pay the day care expenses of $1,574 and unreimbursed medical expenses of $95.   There was ample evidence to support that finding.

The Family Support Magistrate's order that the defendant pay the insurance premiums is vacated as it was premised upon an out-of-court agreement between the parties and was not the subject of a valid and enforceable court order.

Shluger, J.

Shluger, Kenneth L., J.