Kenneth W. Clark v. Mary Ann Clark (2010)

MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT (# 546.00)

The marriage of the parties was dissolved by decree of this court on August 18, 2009 at which time the court filed a written Memorandum of Decision (# 438.00).   The parties are the parents of two minor children, to wit:  Kenneth W. Clark IV, born September 24, 1996, and Robert Clark, born January 14, 1999.   The defendant wife (“wife”) was awarded sole legal and physical custody, and both children reside primarily with her.   The older child has been diagnosed with a form of autism.   Prior to the current academic year, he had been enrolled at Eagle Hill School.   Under Article VI of the Memorandum of Decision, the court made a finding that the child had “flourished” at Eagle Hill, and that he was to continue his enrollment for the balance of the academic year 2009-2010.   Both parties were ordered to share equally the tuition costs for the academic years 2008-2009 and 2009-2010, which the court found to be a total of “approximately $95,000.00.”   However, the court set no time frame for the payment of this obligation.   It is uncontroverted that the wife has paid her share of this expense.

As of this date, the child has been unable to return to Eagle Hill for the current academic year (2010-2011), as a result of the uncontroverted fact that there is a large outstanding balance for tuition and fees for previous academic years.   It is also uncontroverted that the plaintiff husband (“husband”) has failed to pay his full share of that court-ordered expense, leaving a large balance outstanding.   During much of the litigation, both parties were represented by counsel, however both are now self-represented.   The matter comes to this court by way of the wife's Motion for Contempt (# 546.00) dated August 30, 2010.

The parties appeared before the court on October 26, 2010, and they each offered testimony and submitted evidence.   The court also heard the testimony of Kirk Bennett, Esq., the Guardian ad Litem for the minor children, who told the court that the minor child Kenneth is currently enrolled in the Greenwich Public School System, but he is very upset and is not doing well emotionally.   In addition to the foregoing, at the hearing, the husband admitted that the child had done well at Eagle Hill, but he felt that it was not the only suitable academic setting for their son.   However, he did not offer any evidence of a suitable alternative school.

FINDINGS

The court, having considered the testimony and evidence hereby finds as follows:

1. That a finding of contempt must be based upon a wilful failure to comply with a clear and unequivocal order of the court.  Sablosky v. Sablosky, 258 Conn. 713, 718 (2001).

2. That “due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel and have a chance to testify and call witnesses in his behalf.”   Bryant v. Bryant, 228 Conn. 630, 637 (1994).

3. That the court order creating the parental obligation to pay the tuition for the minor child Kenneth was clear and unequivocal, however, the order was silent as to the timing thereof that the wife has satisfied her portion of the obligation in full;  and that as of the date of the motion, the husband had made no payments toward same.

4. That as of the date of the motion there was due and owing to Eagle Hill by the husband the sum of $52,971.25;  that subsequent thereto, the husband made two payments to Eagle Hill totaling $20,500.00 (Exhibit # 1);  and that the outstanding balance due and owing by the husband as of the date of the hearing is $32,471.25 (AMC Exhibit # 1).

5. That the husband is in breach of the order of the court, in that he had the financial wherewithal to satisfy his obligation to Eagle Hill in full, as evidenced by his testimony that he had satisfied other significant financial obligations instead;  and that although he made a partial payment of this obligation, he is currently in breach of his obligation to satisfy his share of the outstanding balance due Eagle Hill;  but that his failure to do so does not warrant a finding of contempt.

6. That “in a contempt proceeding, 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.”  Sardilli v. Sardilli, 16 Conn.App. 114, 120 (1988);  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988).

7. That the wife is the sole legal and physical custodial parent of the minor children;  that the minor child Kenneth has been diagnosed with a form of autism;  that the court has previously found that said minor child has thrived while attending Eagle Hill;  that the evidence supports a finding that said minor child would benefit from his re-enrollment at Eagle Hill;  that the testimony of the wife and the Guardian ad Litem supports a finding that it is in the best interest of said minor child that he attend Eagle Hill for the current academic year;  that the husband's breach of his obligation has impaired the wife's ability as sole custodian to enroll the minor child in Eagle Hill for the academic year 2010-2011;  and that the husband has the ability to satisfy the remaining outstanding balance to Eagle Hill.

ORDER

The foregoing motion for contempt having been heard, it is HEREBY GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED THAT within thirty (30) days from the date of this order, the husband satisfy IN FULL his outstanding obligation to Eagle Hill in the amount of $32,471.25.

THE COURT

SHAY, J.

Shay, Michael E., J.