Aaron R. Lewis v. Caroland Wiggs–Lewis (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT, POSTJUDGMENT (126.10)

On March 5, 2012, the plaintiff filed a motion for contempt for the failure of the defendant to abide by the terms of the dissolution judgment.   The parties' marriage was dissolved by judgment entered on May 16, 2008 which judgment incorporated by reference an agreement of the parties (the agreement).   The agreement included the provision that the “[p]arties agree to destroy embryos that were stored during their marriage.”

The court held a hearing on the pending motion and oral argument on an appeal from an order issued by the magistrate court on October 3, 2013.   Both parties were represented by counsel.   At the hearing on the motion for contempt both parties testified, each called one or more additional witnesses and the defendant entered two exhibits into evidence.

For the reasons set forth below, the plaintiff's motion is denied.

FINDINGS OF FACT AND ANALYSIS

It is undisputed that the language of the agreement with respect to the destruction of the embryos was inserted therein at defendant's request and that both parties were canvassed on the terms of the agreement by the court, Brennan, J.T.R., on the date of dissolution.   The language of the agreement is clear that the parties, emphasis added, were to destroy the embryos.

It is also undisputed that the (i) embryos were stored at a clinic at the UConn Health Center in Farmington, Connecticut;  (ii) defendant by virtue of an implanted embryo bore a child, a daughter, on March 30, 2009;  (iii) plaintiff, who is blind, signed an acknowledgment of paternity of the child on May 29, 2009 at the Hartford Superior Court for Juvenile Matters;  and (iv) the plaintiff's execution of the acknowledgement of paternity was acknowledged by his counsel at the juvenile proceedings, Attorney Valeria Caldwell–Gaines.¹

Other than the above, most everything else is in dispute.

The court finds it credible that the parties were attempting to reconcile after the divorce and that they engaged with informal counseling with Ms. Henderson.

The embryo was implanted on July 17, 2008.   The plaintiff was present at the UConn Health Center on that day and the court does not find credible his statement that he was there to complain about the billing charges that continued to accrue for the stored embryos.   It defies credulity that he would go to the UConn Health Center by Dial–A–Ride to complain about the billing and yet not request the destruction of the embryos and he testified that he did not request the destruction of the embryos at any time prior to the birth of the child.   The court finds he was present in the waiting room with the defendant before she was taken into the facility for the implantation process.   The credible evidence is that he was aware of the defendant's intention to become pregnant by use of the embryos and that he participated in assisting her to do so.   The court further finds that plaintiff made efforts to convince a friend of the parties, Ms. Roy, to assist the defendant in giving herself the shots required prior to the implantation.

The credible evidence is that the plaintiff was present on August 14, 2008 for an ultrasound performed at 100 Retreat Avenue in Hartford and his claims that he happened to be at that facility to go to Friendly's and/or in connection with his pastoral duties were not convincing—in large part because there is no Friendly's at 100 Retreat Avenue and there are only offices at such facility thereby making it an unlikely place for the plaintiff to perform pastoral duties.

While the plaintiff was not present for the birth of the child, the court does not attribute great weight to his absence at such event as he was attending his brother's funeral out of state on the same day.   The credible evidence is that he went to visit the baby at the defendant's home upon his return.

While there is also a dispute as to the extent of the plaintiff's involvement with the child after her birth, the court does not find it particularly relevant—although the court finds his dismay at the birth of the child occurred when the defendant filed a petition for support.

“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).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263 (1995).   “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.”  Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7, 14 (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, supra, 38 Conn.App. 275–76;  Niles v. Niles, 9 Conn.App. 240, 253–54 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).

It is elementary that court orders must be complied with until they are modified by a court or successfully challenged.  Eldridge v. Eldridge, 244 Conn. 523, 530 (1998).

Judgment incorporating a separation agreement is construed as a contract.   Greenburg v. Greenburg, 26 Conn.App. 591 (1992).

ADDITIONAL FINDINGS OF FACTS AND CONCLUSIONS

There is a clear and unambiguous order requiring the parties to destroy the embryos.   The parties did not destroy the embryos together and there is no evidence that the plaintiff endeavored to do so singularly.

The defendant did after the entry of judgment bear a child after implanting one of the embryos.   That was clearly not contemplated by the agreement.

However, the court finds the evidence presented clearly proved that the plaintiff by his actions consented to and participated in the implantation process.

“It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with ‘clean hands' ․ The clean hands doctrine is applied not for the protection of the parties but for the protection of the court ․ It is applied not by way of punishment but on considerations that make for the advancement of right and justice ․” Pappas v. Pappas, 164 Conn. 242, 245–46 (citations omitted).

The court finds the plaintiff may not by his actions (and, no doubt, words) induce the defendant to conclude that he agrees and assents to the implantation of one or more embryos and then not only disavow the same but complain of the defendant's actions that were performed in reliance on his.

The parties knowingly acted contrary to the terms of the court order and doing so was not appropriate or advisable.   However, the court does not find it a willful and contemptuous violation of the order of the court.

ORDER

The motion for contempt is denied.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. The acknowledgement includes a statement that the signatory has “read and have had read and explained to me, the rights and responsibilities on the back of the form and I understand the contents.”   Due to his disability, it is self-evident that he did not read the form.   There was no evidence, however, that the form was not read to him or that it was.   Further, there was no evidence that he raised any objection to signing the form or to the contents thereof..  FN1. The acknowledgement includes a statement that the signatory has “read and have had read and explained to me, the rights and responsibilities on the back of the form and I understand the contents.”   Due to his disability, it is self-evident that he did not read the form.   There was no evidence, however, that the form was not read to him or that it was.   Further, there was no evidence that he raised any objection to signing the form or to the contents thereof.

Olear, Leslie I., J.