Jerome Wisneski, Jr. v. Elizabeth Miller (2011)

DECISION RE DEFENDANT'S MOTION FOR MODIFICATION (# 131), AND DEFENDANT'S MOTION FOR CONTEMPT (# 135)

This matter comes before the court on the Defendant's Motion for Modification filed May 5, 2010 and Defendant's Motion for Contempt filed December 21, 2010.   On April 7, 2011 this court held an evidentiary hearing.   The parties appeared, represented by counsel, and presented testimony of the parties and the guardian ad litem.

When a court rules on a motion to modify visitation, it is statutorily incumbent on the court that its order be guided by the best interest of the child standard, as set forth in General Statutes § 46b–56(b).  Ireland v. Ireland, 246 Conn. 413, 452, 717 A.2d 676 (1998);  Kelly v. Kelly, 54 Conn.App. 50, 57, 732 A.2d 808 (1999).  Szczerkowski v. Karmelowicz, 60 Conn.App. 429, 433 (2000).

General Statutes § 46b–56(b) provides in relevant part:  “In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child ․”

This Court, having heard the testimony of the defendant, the plaintiff and the guardian ad litem, and having considered the exhibits entered into evidence, and after having considered the factors enumerated in C.G.S. § 46b–56(b), and applicable case law, hereby finds that the visitation and parental access orders entered in the original judgment of June 15, 2007 remain to be in the best interests of the children and hereby denies the Defendant's Motion for Modification.

DEFENDANT'S MOTION FOR CONTEMPT (# 135)

In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001).  “Noncompliance alone will not support a judgment of contempt.”  (Internal quotation marked omitted.)  Prial v. Prial, 67 Conn.App. 7 (2001).  “[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 (1995).

In this case the court finds the defendant has failed to prove by a preponderance of the evidence that circumstances surrounding the four occasions where the parties disagreed as to the visitation schedule constituted a “willful” disregard of the court orders.   The motion is hereby denied.

BY THE COURT

MARKLE, J.

Markle, Denise D., J.