Jill Tryon v. II (2011)

MEMORANDUM OF DECISION

I

BACKGROUND

The defendant filed this motion for contempt, No. 146, on February 18, 2011, after which the court held an evidentiary hearing on May 16, 2011.   The plaintiff was self-represented at the hearing and the defendant was represented by counsel.   Incarceration was a remedy neither sought by the defendant nor considered by the court.

The defendant claims in his motion for contempt myriad violations of the judgment entered by the court, Brennan, J., on November 7, 2008.¹  Essentially, there are two allegations of contempt.   First, the defendant asserts that the plaintiff has failed to make a good faith effort to refinance the second mortgage on the family home within one (1) year of the judgment.   The court has previously found the plaintiff to be in contempt on the record for her actions in this regard, especially in light of the fact that she used this home equity line of credit to purchase a business.   Although she did not add to this debt, she had paid down the second mortgage with proceeds of the refinance of the first mortgage and then used the second mortgage to purchase the business.   Based upon this finding of contempt, remedial orders were issued by the court at the conclusion of the hearing.   Second, and of more significance to the defendant, he asserts many violations of court orders signifying parental alienation.

There is no doubt that there is an underlying schism in this family's relations with one another, which is attributable to the dissolution and its causes.   The family has engaged the services of many legal and mental health professionals over the course of many years to resolve the fractious relationships which have continued and remain significant.   The dissolution was precipitated by the defendant's departure from the family for another woman, over which the plaintiff's residual distain for him is palpable.   The focus of the fractured relationship in this contempt is the refusal of the parties' three daughters to interact constructively, if at all, with their father.   This problem is particularly evident with the oldest child, who is now 13 years old and there was significant evidence presented that the younger children are acting in accordance with the oldest child.

There appear to have been several very acrimonious incidents that have occurred between the defendant and his oldest daughter.   One occurred in a bathroom, the details of which were not entered into evidence.   Others involve specific incidents during which the oldest daughter has vehemently and publicly refused to be in the company of the defendant.   However, the Guardian Ad Litem specifically testified that there was no reasonable and ongoing basis for the antagonism expressed and demonstrated by the children toward the defendant.

Generally, the plaintiff has been supportive of the children seeing their father pursuant to court orders but has allowed them to believe they have a choice of whether or not to see him, and she asserts that the defendant has similarly led the children to this conclusion.   In his belief that the right opportunity will reinvigorate positive relations between them, the court finds that the defendant has led the children to believe that they will be free to choose their fate if they do certain activities with him.   He has also apparently led them to believe the same thing about continuing with therapy.   However, the court views these self-undermining communications as last efforts to resolve a very complicated problem, stemming from the plaintiff's underlying failure to successfully facilitate good relations between the defendant and his children.   The question is whether this failure is contempt.

The children's patterns of detachment from the defendant appear to the court, after hearing and evaluating the evidence, to stem from the plaintiff's incapacity to embrace the concept of an ongoing and constructive relationship with the father of her children.   For some simple yet concrete examples, she directs her children to answer the phone when their father calls, but will not do so herself, and so they do not get on the phone.   She directs the children to meet their father at the door to begin their visitation with him, but will not do so herself, so they do not go to the door or leave with him.   Furthermore, the plaintiff does not impose any consequence for her children's failure to comply with court ordered access.   These are small, but emblematic examples of the alienation problem, which is most certainly more complex on a psycho-social level, upon which no expert was called to opine.   Yet the question of contempt is somewhat complex in this context, as well.

The plaintiff appears to understand that the problem exists, but has been exasperated by the scores of therapeutic sessions that have failed to successfully resolve this problem.   She should by now understand the genesis of the problem, but she appears to place the blame on the defendant, without sharing any of the responsibility.   She states that she will comply with any order of the court, but if past is prologue, then it would be without any heartfelt enthusiasm for the process or for a positive result that would involve a change in her behavior.   She has not been inspired to change this entrenched pattern of negative relationships, so the question now is whether punishment will do what information and inspiration have not.

In addition to these generalized concerns of alienation, the court heard uncontroverted evidence that the plaintiff left the children in the care of a neighbor for the purpose of attending the U.S. Open, without allowing the defendant his right of first refusal to have access with his children.   Although the children may have refused to be with their father, she nonetheless chose to leave with the children in the care of someone other than the defendant.   In addition, it is uncontroverted that the plaintiff has told the children a great deal about these court proceedings.   In particular, she has told them that these proceedings have been brought by the defendant for the purpose of enforcing his right to access and visitation against their collective wills and his own agreement.

II

DISCUSSION

Connecticut procedure authorizes motions for contempt.   See Connecticut Practice Book § 25–27.  “To constitute contempt a parties' conduct must be wilful ․ Noncompliance alone will not support a judgment of contempt.”   (Citation omitted;  internal quotation marks omitted.)  Detels v. Detels, 79 Conn.App. 467, 470, 830 A.2d 381 (2003).  “The burden of establishing a prima facie showing of contempt ․ falls upon the [moving party].”  (Footnote omitted;  external citation omitted.)   Lawson v. Lawson, Superior Court, judicial district of New Haven at New Haven, Docket No. FA00 0434443 (February 14, 2006, Dewey J.).

The Supreme Court has recently reiterated the standard applicable to civil judgments of contempt in the case of In re Leah S., 284 Conn. 685, 935 A.2d 1021 (2007).   The court explained:  “[O]ur analysis of a judgment of contempt consists of two levels of inquiry.   First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt ․ Second, if ․ the underlying court order was sufficiently clear and unambiguous, [the trial court must then determine] ․ whether the violation was wilful or excused by a good faith dispute or misunderstanding.”  (Citations omitted.)  Id., at 693–94.

“Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts ․ Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt because the contempt remedy is particularly harsh and may be founded solely upon some clear and express direction of the court.   One cannot be placed in contempt for failure to read the court's mind ․ This is a longstanding tenet of the law of contempt ․ It is also logically sound that a person must not be found in contempt of a court order when ambiguity either renders compliance with the order impossible, because it is not clear enough to put a reasonable person on notice of what is required for compliance, or makes the order susceptible to a court's arbitrary interpretation of whether a party is in compliance with the order.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  In re Leah S., 284 Conn., supra, 695.

Under the facts and circumstances of this case, contempt is difficult for the court to find regarding much of the alleged misconduct because it is either unproven or it involves a subjective, unclear or unenforceable term in the judgment.   The court nonetheless finds there is noncompliance with several court orders.   The court finds in general ² that the plaintiff is not in compliance with section 2.1 of the judgment concerning the parenting plan, generally, to the extent it requires the parties' “best efforts to work cooperatively,” section 2.5 concerning consultations on major decisions, and section 2.7 concerning affection, to the extent it requires the parties to use “every effort to maintain unhampered contact ․ and to foster a feeling of affection between the minor children and the other parent.”

However, contempt is found for willful noncompliance with court orders, as follows:  The plaintiff is in willful noncompliance with the provisions of section 2.7 of the judgment involving estrangement and injuring the opinions of the children toward the other parent.   She willfully did this by intentionally telling the children that their father was coming to court to break his word to them concerning his interest in enforcing his right to visitation against their will.   The court finds there was no conceivable purpose in this other than to injure the defendant in the opinions of his children.   Furthermore, she is in willful noncompliance with section 2.16 of the judgment concerning the right of first refusal.   The court finds this order to be particularly clear and the behavior of the plaintiff to be in willful contravention of this court order.   The court finds that the plaintiff intentionally left the children in the care of a neighbor for more than 5 hours, involving an overnight stay out of state to attend the U.S. Open.

Further, and as stated previously, the plaintiff has been found in contempt for her actions with respect to refinancing the mortgages on the marital home and remedial orders have been set forth in the record.

III

FURTHER ORDERS

1. Plaintiff is ordered to review the provisions of the judgment in this case, dated November 7, 2008, with an attorney at law at her own expense.   The completion of this review shall be certified by the attorney in writing to the defendant within thirty (30) days.

2. The children shall continue individual and group therapy, as determined to be necessary and psychologically appropriate by their therapist, and consistent with generally accepted protocols used for the purpose of reunification with a parent, which in this case is the defendant.   The parties shall be informed of all appointments and whether the child, children or other party attended the scheduled appointment.   Any liability for an unexcused absence shall be paid for exclusively by the plaintiff, unless the defendant misses an unexcused appointment.

3. The current access schedule is suspended until such time as the therapist informs the parties and the GAL that it is therapeutically appropriate to resume access for the defendant, in part or in whole.   If the parties disagree, they may file a motion to vacate the suspension or otherwise modify visitation.   The suspension of the visitation schedule shall expire without further action of the court on November 1, 2011.

4. The refusal of either party to resume or substantially comply with the access schedule after November 1, 2011 shall result in the automatic right to seek a court ordered psychological examination, to be conducted on and exclusively paid for by the noncompliant party.

5. Upon the resumption of the access schedule and at the request of either parent, the GAL, as she may be available, shall supervise the transition of physical custody from the plaintiff to the defendant, the cost for which shall be shared by the parties.   If the transition from the plaintiff to the defendant is unsuccessful or results in a delay of more than 15 minutes, the plaintiff shall pay the entire cost of the GAL's fee for supervising the transition and, in addition, for supervising the next transition of physical custody from the plaintiff, as the GAL may be available.   After two successful, consecutive transitions, neither party shall have the continuing right to request the GAL's supervision during the next transition of physical custody.   However, any subsequent, unsuccessful transition or delay of more than 15 minutes shall reestablish this right.   The schedule of payments for the GAL's fees shall be made by agreement of the parties or, otherwise, within thirty (30) days of billing, after which interest pursuant to General Statutes § 37–3a shall apply.

6. The plaintiff is ordered to pay attorneys fees for the preparation and prosecution of this motion in the amount of $2,500, plus costs in the amount of $78.19.   These amounts shall be paid in full to the defendant's attorney within ninety (90) days, after which interest pursuant to General Statutes § 37–3a shall apply.

SO ORDERED.

BY THE COURT,

Mark H. Taylor, J.

FOOTNOTES

FN1. In his proposed orders, filed with the court on May 13, 2011, the defendant asserts violations of the judgment, as follows:  “A., plaintiff has failed to make the children available for visitation, in violation of Paragraph 2.2 of the Judgment;  B. plaintiff has interfered with the defendant's ability to raise and provide support to the minor children, in violation of Paragraph 2.1 of the Judgment;  C plaintiff has failed to use her best efforts to work cooperatively with the defendant in developing future plans consistent with the best interests of the children and in amicably resolving any disputes with the defendant which may arise, in violation of Paragraph 2.1 of the Judgment;  D. plaintiff has failed to use her best efforts to foster and continue the children's relationship with the defendant and his extended family, in violation of Paragraph 2 of the Judgment;  E. plaintiff has failed to discuss major decisions affecting the children with the defendant, specifically but not including psychotherapy and psychiatric treatment of the minor children, in violation of Paragraph 2.5 of the Judgment;  F. plaintiff has failed to exert every effort to allow the defendant to maintain unhampered contact with the minor children and to foster a feeling of affection between the minor children and the defendant, in violation of Paragraph 2.7 of the Judgment;  G. plaintiff has estranged the children from the defendant in violation of Paragraph 2.7 of the Judgment;  H. plaintiff has engaged in parental alienation against the defendant, by saying and acting in ways which injure the opinion of the children of their father, thereby hampering the free and natural development of said children's love and respect for the defendant, in violation of Paragraph 2.7 of the Judgment;  I. plaintiff has continually listed the last name of the minor children as Tryon rather than Repka at the Country Club and at various sporting events without the knowledge and consent of the defendant and contrary to court orders and what is best for the minor children as previously discussed with the Guardian Ad Litem, in violation of Paragraph 2.1 and 2.7 of the Judgment;  J. plaintiff has failed to communicate and detail information pertaining to the children via e-mail every Monday, in violation of Paragraph 2.10 of the Judgment;  K. plaintiff has failed to allow defendant liberal and reasonable telephone access with the minor children, in violation of Paragraph 2.11 of the Judgment;  L. plaintiff has failed to encourage the children to call the defendant frequently, in violation of Paragraph 2.11 of the Judgment;  M. plaintiff has failed to offer the defendant the right of first refusal prior to allowing baby sitters and other family members or friends/neighbors to care for the children for greater than five (5) hours, in violation of 2.16 of the Judgment;  N. plaintiff has failed to work cooperatively with the defendant in developing future plans consistent with the best interests of the minor children, in violation of Paragraph 2.20 of the Judgment;  O. plaintiff has refused to work with the Guardian Ad Litem Ruth Hofstatter, to resolve disputes relating to the minor children's mental health and welfare, in violation of Paragraph 2.20 and 2.21 of the Judgment;  P. plaintiff has failed to work on her parenting and communication skills to assure compliance and understanding of what is in the best interests of the minor children, in violation of Paragraph 2.20 of the Judgment;  Q. plaintiff has failed to comply with the recommendations and edicts of the Guardian Ad Litem, Ruth Hofstaffer, in violation of Paragraph 2.21 of the Judgment;  R. plaintiff has failed to notify defendant of the existence of health insurance through her employment, in violation of Paragraph 5.2 of the Judgment;  S. plaintiff has failed to complete, execute and deliver to the defendant all forms and provide all information in connection with any application she has made for reimbursement of healthcare expenses under any insurance policy applicable to each child, in violation of Paragraph 5.2 of the Judgment;  T. plaintiff has failed to reconcile the respective financial responsibilities for unreimbursed medical expenses on a quarterly basis, in violation of Paragraph 5.3 of the Judgment;  U. plaintiff has failed to make a good faith effort to refinance the second mortgage within one (1) year from date of dissolution to remove Husband's name from said mortgage obligation and has failed to continue to use good faith efforts at least annually thereafter to refinance and remove Husband's name from the second mortgage, in violation of Paragraph 6.4 of the Judgment;  V. plaintiff has failed to provide defendant an explanation (if not financially advantageous) otherwise full disclosure, including but not limited to the loan application and any and all correspondence to and/or from the lending institution, to the defendant if said refinance is denied, in violation of Paragraph 6.4 of the Judgment.”.  FN1. In his proposed orders, filed with the court on May 13, 2011, the defendant asserts violations of the judgment, as follows:  “A., plaintiff has failed to make the children available for visitation, in violation of Paragraph 2.2 of the Judgment;  B. plaintiff has interfered with the defendant's ability to raise and provide support to the minor children, in violation of Paragraph 2.1 of the Judgment;  C plaintiff has failed to use her best efforts to work cooperatively with the defendant in developing future plans consistent with the best interests of the children and in amicably resolving any disputes with the defendant which may arise, in violation of Paragraph 2.1 of the Judgment;  D. plaintiff has failed to use her best efforts to foster and continue the children's relationship with the defendant and his extended family, in violation of Paragraph 2 of the Judgment;  E. plaintiff has failed to discuss major decisions affecting the children with the defendant, specifically but not including psychotherapy and psychiatric treatment of the minor children, in violation of Paragraph 2.5 of the Judgment;  F. plaintiff has failed to exert every effort to allow the defendant to maintain unhampered contact with the minor children and to foster a feeling of affection between the minor children and the defendant, in violation of Paragraph 2.7 of the Judgment;  G. plaintiff has estranged the children from the defendant in violation of Paragraph 2.7 of the Judgment;  H. plaintiff has engaged in parental alienation against the defendant, by saying and acting in ways which injure the opinion of the children of their father, thereby hampering the free and natural development of said children's love and respect for the defendant, in violation of Paragraph 2.7 of the Judgment;  I. plaintiff has continually listed the last name of the minor children as Tryon rather than Repka at the Country Club and at various sporting events without the knowledge and consent of the defendant and contrary to court orders and what is best for the minor children as previously discussed with the Guardian Ad Litem, in violation of Paragraph 2.1 and 2.7 of the Judgment;  J. plaintiff has failed to communicate and detail information pertaining to the children via e-mail every Monday, in violation of Paragraph 2.10 of the Judgment;  K. plaintiff has failed to allow defendant liberal and reasonable telephone access with the minor children, in violation of Paragraph 2.11 of the Judgment;  L. plaintiff has failed to encourage the children to call the defendant frequently, in violation of Paragraph 2.11 of the Judgment;  M. plaintiff has failed to offer the defendant the right of first refusal prior to allowing baby sitters and other family members or friends/neighbors to care for the children for greater than five (5) hours, in violation of 2.16 of the Judgment;  N. plaintiff has failed to work cooperatively with the defendant in developing future plans consistent with the best interests of the minor children, in violation of Paragraph 2.20 of the Judgment;  O. plaintiff has refused to work with the Guardian Ad Litem Ruth Hofstatter, to resolve disputes relating to the minor children's mental health and welfare, in violation of Paragraph 2.20 and 2.21 of the Judgment;  P. plaintiff has failed to work on her parenting and communication skills to assure compliance and understanding of what is in the best interests of the minor children, in violation of Paragraph 2.20 of the Judgment;  Q. plaintiff has failed to comply with the recommendations and edicts of the Guardian Ad Litem, Ruth Hofstaffer, in violation of Paragraph 2.21 of the Judgment;  R. plaintiff has failed to notify defendant of the existence of health insurance through her employment, in violation of Paragraph 5.2 of the Judgment;  S. plaintiff has failed to complete, execute and deliver to the defendant all forms and provide all information in connection with any application she has made for reimbursement of healthcare expenses under any insurance policy applicable to each child, in violation of Paragraph 5.2 of the Judgment;  T. plaintiff has failed to reconcile the respective financial responsibilities for unreimbursed medical expenses on a quarterly basis, in violation of Paragraph 5.3 of the Judgment;  U. plaintiff has failed to make a good faith effort to refinance the second mortgage within one (1) year from date of dissolution to remove Husband's name from said mortgage obligation and has failed to continue to use good faith efforts at least annually thereafter to refinance and remove Husband's name from the second mortgage, in violation of Paragraph 6.4 of the Judgment;  V. plaintiff has failed to provide defendant an explanation (if not financially advantageous) otherwise full disclosure, including but not limited to the loan application and any and all correspondence to and/or from the lending institution, to the defendant if said refinance is denied, in violation of Paragraph 6.4 of the Judgment.”

FN2. Some of these are orders may also not be specific enough for a contempt to be found and enforced..  FN2. Some of these are orders may also not be specific enough for a contempt to be found and enforced.

Taylor, Mark H., J.