Kenji Harris v. Tashana Hamilton (2013)

MEMORANDUM OF DECISION

PRELIMINARY MATTERS

This matter is a postjudgment custody/parenting time dispute.   The court, Adelman, J., entered numerous orders on July 14, 2011(266) in an attempt to put to rest many of the disputes between the parents of the minor child, Khalise.   The sheer number of motions filed since that date is indicative of the parties' inability to reach détente.¹

In his decision of July 14, 2011, Judge Adelman was unable to rule upon a motion for contempt that had been filed by the plaintiff on March 4, 2011(256);  after an appeal that motion was remanded to the trial court.

In addition to motion 256, the court heard evidence on the motions identified below on March 12, April 9, May 2, July 19, September 13, and November 18, 2013.

In court also heard defendant's ex parte motion (299) and related motion for modification (300) both filed September 7, 2012.   The ex parte motion had been granted in part on September 7, 2012 (which order was continued by the court, Carbonneau, J., on September 26, 2012);  after the hearing on May 2, 2013, the ex parte order was vacated and on July 19, 2013, the parties reported that they resolved the issue raised in the motion to modify and it was no longer being pursued.   On July 11, 2013, the defendant filed an ex parte motion (323) and the court entered an order that the parties “comply with existing court orders” and yet on July 17, 2013, the plaintiff filed a motion (324) to vacate such order.

The Guardian Ad Litem filed a request for a status conference due to a concern with the safety of the child.   On October 30, 2013, after a hearing on the status request, the court appointed Attorney C. Michael Budlong as the attorney for the minor child.

The court heard the testimony of both parties and of other witnesses, considered the credibility or lack thereof of all witnesses, has reviewed the exhibits entered into evidence and makes the following findings, rulings and orders after consideration of applicable statutory and common law.

APPLICABLE LAW

“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).

FINDINGS OF FACTS, APPLICATION OF LAW TO THE FACTS AND RULINGS AND ORDERS

Findings of facts that are set forth under one or more of the motions addressed below are also found, as applicable, to the other and further motions considered in this memorandum.

During the hearing, the plaintiff again elicited testimony from the defendant regarding her past attempts to fabricate evidence and misrepresent matters to the court, together with her alteration of court orders.   The defendant refused to answer some questions on the basis of her Fifth Amendment rights.   The court can and does draw an adverse inference in this civil matter from the defendant's refusal (proper though it is) to answer all of the questions put to her relating to that matter.  Olin Corporation v. Castells, 180 Conn. 49 (1980).   As set forth below, the court did not find the defendant to be completely credible;  likewise the plaintiff.

Pursuant to the July 14, 2011 memorandum of decision, the following orders are in effect (which orders are numbered using the numbers set forth in memorandum of decision):

11. Each parent shall be responsible for bringing the minor child to her scheduled activities.

11.1 [T]he minor child is currently engaged in weekly dance classes and a basketball program through the Wilson Gray YMCA in Hartford.   She shall remain active in those two activities without the need for any further authorization or agreement by the parties.

11.4 Any other activity that might require the involvement of the other parent shall be discussed by the parents prior to the enrollment of the child.   Such discussion must be in good faith and must precede any commitment to the child of her involvement regarding such activity.   If after such good faith discussion, no agreement is reached, the defendant's decision shall be binding.

12. The parties are to continue to use Our Family Wizard (OFW) for basic communications.

12.3 The plaintiff shall provide information to the defendant [on OFW] no later than 6:00 p.m. every Monday and Wednesday and the defendant shall do the same no later than 6:00 p.m. every Tuesday and Thursday.

12.4 Each party shall enter all appropriate activities for the minor child on the site calendar in a timely fashion.

12.7 Both parents must provide the other with current cell phone numbers and residential addresses within five (5) hours of any changes.

A. Motion 256:  Plaintiff's Motion for Contempt filed March 4, 2010

The plaintiff introduced evidence on his motion only in support of the allegation that the defendant interfered with his parenting time on February 24, 2011.²

The court found the testimony of Ms. Biggs and Ms. Johnson to be credible and the credible evidence is that the defendant interfered with Ms. Biggs picking up Khalise from dance to take her to basketball.   The defendant blocked the door to prevent Ms. Biggs from entering the studio to pick up Khalise.   The incident was loud and embarrassing to Khalise and to Ms. Biggs.

At the time of the incident, the provisions of order 172.10 were in affect which provide that a designee of a parent may pick up the child provided the parent posts the name of the designee on OFW as soon as reasonably possible before or after the exchange.

The plaintiff had not, prior to the incident, designated Ms. Biggs as a designated person to pick up Khalise.   He did so after the incident as permitted.

The defendant testified that she did not want Ms. Biggs to pick up Khalise due to a concern that Ms. Biggs had been drinking alcohol.   The testimony was utterly unconvincing.

It is clear that the defendant willfully hindered the exchange of the child.   It is clear that the defendant knew Ms. Biggs was there at the behest of the plaintiff.

The court finds the defendant willfully violated a clear and unambiguous order of the court and the court finds the defendant to be in contempt.

The motion for contempt is granted.

The court orders the defendant to pay $1,000 to the GAL, which shall be applied to any balance due and payable to the GAL by the plaintiff.   The payment is to be made by January 15, 2014.   If after applying the $1,000 to plaintiff's balance due to the GAL, if any, the amount remaining shall be paid by the GAL to plaintiff's counsel as attorneys fees incurred in the prosecution of this motion.

B. Motions 302 and 306:  Plaintiff's Motion for Contempt filed September 25, 2012 and January 4, 2013, Respectively

The court finds the defendant did fail to timely take the child to basketball practices and games on many occasions.   The plaintiff sets forth twenty dates on which the child was late or absent in motion 302 and nine dates in motion 306.³

The defendant acknowledged taking the child to basketball late on October 29, 2011 because the child was being tutored at home to improve her grades;  the tutoring date was set forth on OFW. The defendant credibly testified that the time of the basketball program on October 29, 2011 was belatedly changed from 12:30 p.m. to 1:45 p.m. to a time in the morning and after she had already scheduled the tutoring.   She further indicated that as the Friday practices were optional she did not take the child to all or most of the Friday practices and nine of the dates in motion 302 were Fridays.   The defendant acknowledged that she could remember only taking Khalise to one of the dates set forth in motion 306.

The defendant further testified that at the time of the order in July 2011, the basketball program was held once a week for one hour on Saturdays.   The basketball program was expanded and Friday practices were added and then the youth program developed into a travel basketball—which was on Saturdays and Sundays.

The plaintiff's paramour, Ms. Biggs, is a coach of the team at the Wilson Gray YMCA. Miss Biggs testified that as of July 2011, the program consisted only of Saturday practice and games.

The plaintiff testified that there are no seasons in the basketball program and that it just continued on—even though there was a switch in the program from a once weekly practice and game on Saturday to a travel team with games Saturday and Sunday.   His testimony was not credible.   The sports and recreational director of the YMCA testified that the travel and AAU programs did not exist in July 2011;  travel started in October 2011 and AAU in April 2012.

The defendant was not consulted on the expansion of the program and she did not consent to it.

The court finds there is no clear and unambiguous order that authorizes the expansion of the basket program through the Wilson Gray YMCA beyond the program as it existed at the time of the order.

The court does agree that if Khalise is a member of a team that every effort is to be made to get her to practices and games and the court does not condone the defendant's failure to do so.

Notwithstanding the foregoing, the court does not find the defendant to have willfully violated a clear and unambiguous court order.

Motions 302 and 306 are denied.

C. Motion 307:  Plaintiff's Motion for Contempt filed January 7, 2013

The plaintiff avers that the defendant failed to exchange the child at the midway point of the Christmas vacation and that the defendant has directed school administrators not to provide the plaintiff with any information regarding Khalise.

The July 2011 orders did not modify parenting time.   Under the order of August 14, 2008 (172.10) as 2012 was an even year, the Christmas break was to run as follows:  defendant to have parenting time from December 26th at 6:00 p.m. until half way through the vacation period and plaintiff to have parenting time from half way through the vacation period until 6:00 p.m. the evening prior to school's commencement in January.   The New Year's Day holiday is not identified as a holiday in the orders having a special allocation of parenting time—rather it is subsumed in the sharing of the Christmas vacation break schedule.

The plaintiff testified that the defendant dropped off the child at 6:00 p.m. and not at noon on December 28, 2012.   He testified that he had the child for three days and the defendant had the child for four.

The defendant calculated the time as being from December 26 through December 31.   She had the child with her from December 26 through 28 and then she dropped off the child from December 28 through 31.   She calculated that as being halfway through the break.

The court finds that the order would have required a split of the period from 6:00 p.m. on December 26, 2012 until 6:00 p.m. on January 2, 2013 (the court having taken judicial notice that in 2012, January 1 was on a Sunday and the legal holiday was January 2, and the court makes the reasonable assumption that school resumed on January 3, 2013).

There is no time set forth for the midway exchange—so the defendant cannot be found to have violated a clear and unambiguous order by exchanging the child at or around 6:00 p.m. instead of noon.

Further, the court finds there were seven twenty-four-hour periods from December 26 at 6:00 p.m. until January 2, 2013 at 6:00 p.m. and therefore determines the exchange should have taken place on December 29, 2012 at noon to come as close as possible to creating an equal parenting time for each parent.

Based on all of the above, the court does not find a willful violation of the court's order regarding the Christmas break.

As to the educational records, both parties are entitled to the child's educational records.

The defendant denied hindering the plaintiff's access to the records, but she acknowledged telling the school not to give the plaintiff the school enrollment form.   She said she did not want the plaintiff to have her phone number (presumably a land line number as she is obligated to give the plaintiff her cell number).   She informed the plaintiff of the new school on OFW.

The defendant, having been granted sole custody in the July 2011 orders, mistakenly believed she had the right to do as she did.   She did not.   The court finds the defendant willfully restricted the defendant's access to some of the child's educational records.   There is no specific, clear and unambiguous court order, however, that provides for such access to the records.

The defendant's actions are not found to have been a willful violation of a clear and unambiguous court order.

Motion 307 is denied.

D. Motion 311.10:  Defendant's Motion for Contempt filed January 28, 2013 and February 25, 2013

The defendant alleges that plaintiff fails to check OFW for messages in a timely manner allowing messages to go unread and unanswered.

While the court is loath to state than not every e-mail or communication requires a response, the court is compelled to note that the orders do not require that all communications receive a reply and perhaps in reality it is not necessary to do so.   The court agrees it would be courteous and appropriate if the defendant sends an email to the plaintiff indicating that his cell phone is not working, that he responds to the defendant to indicate whether it is or it isn't.   He is not obligated by the court orders to do so.   He is obligated, however, to review the messages.   There was insufficient evidence that he fails to do so in violation of the existing court orders.

He is also obligated to provide information at the times and in the manner set forth in the orders of the court.   There was insufficient evidence that he has failed to do so.

The court advises the plaintiff, however, that if the defendant sends a communication to him with respect to the enrollment of a child in an activity as set forth in section 11.4 of the July 2011 orders, that he must respond promptly and in good faith to the defendant.

The defendant also claims the plaintiff failed to allow the minor child to contact her from August 20, 2012 through August 27, 2012.   Her testimony was that during the vacation she was unable to get through to the child's cell phone (the child has two cell phones) and when she called the plaintiff's cell phone she received an “out of service” response.   The plaintiff said that the defendant's statements were all false.

The applicable court order was entered August 14, 2008 and provides that “each parent shall be responsible for ensuring that the child calls the other parent each evening at 7:00 p.m.”

The credible evidence is that such telephone calls did not take place and accordingly, the plaintiff thusly failed to ensure a call was made.   The evidence is not that the plaintiff failed to allow the minor child to contact the defendant.

The plaintiff did not abide with the terms of the orders.

Each party has provided the child with a cell phone.   There was no credible testimony that indicated the plaintiff at all prohibited or interfered with the child calling her mother.   He should have inquired of the child to be sure she had done so.   The court, considering all of the above, does not find the plaintiff to be in contempt.

Motion 311.10 is denied.

E. Motion 311.20:  Defendant's Motion for Modification filed January 28, 2013

The parties cannot agree on the best basketball program for the child.

The defendant notified the plaintiff via OFW on October 26, 2012 that the child desired to play basketball for the South Windsor parks and recreation department;  the defendant lives in South Windsor and the child resides primarily with the defendant.

As the July 2011 order provides for the child to remain in the Wilson Gray YMCA program the plaintiff seeks to modify the order.

At the time of the hearing, the guardian ad litem, Attorney McLaughlin, testified that the child was considering three different programs and that she ranked her choices in the following order:  (i) South Windsor travel;  (ii) South Windsor school program and (iii) Wilson Gray YMCA program.   He testified that she had earlier wanted to play at the YMCA as her first choice.

It is clear that the plaintiff continued to add dates to OFW as the YMCA program expanded.   The court finds credible that the defendant's testimony that she did not take Khalise to Monday practices because the defendant did not ask about adding Mondays in any email and he just added dates to the OFW schedule as they came up.

The court finds that it is in the child's best interest that she be able to participate in a program that will best fit her needs—including to interact with her friends and to develop her skills.   The court finds that the order of Judge Adelman was entered at a time when the Wilson Gray YMCA program was significantly different from the current program.

The court finds it to be in the child's best interest that there be some flexibility as to the programs in which the child is to participate—i.e., she is no longer enrolled in the dance program that existed at the time of the July 2011 orders.

Motion 311.20 is granted with the caveat that the only modification requested was to permit the child to be enrolled in the South Windsor parks and recreation program.

F. Motion 316:  Defendant's Motion for Contempt filed March 1, 2013

The defendant claims the plaintiff is in contempt for failure to pay child support after the order of Family Support Magistrate Gillman entered on March 30, 2012.   The child support ordered on that day was for $54 a week, plus a payment of $11 a week towards the arrearage.   The magistrate found an arrearage of $1,912.17 on March 30, 2012.   The child support guidelines filed on March 30, 2012 were based on plaintiff's income of $304 a week.⁴

The defendant testified, credibly, that the plaintiff owed her $3,467.54 as of March 1, 2013 and there is no evidence to the contrary.

In accordance with Exhibit G, there is an arrearage of $4,374.36 as of November 8, 2013.

The plaintiff's testimony as to his payments during the relevant time period was somewhat halting—perhaps that is due to the passage of time.

It is clear that wage withholding was in effect during the relevant times.   Some weeks more than $54 a week was paid through Support Enforcement Services, but most weeks less was paid.

The plaintiff's financial affidavits filed March 27, 2012 (290.10) and June 1, 2012(295) (i.e., during the relevant time) indicated he was making $49 a week from the City of Hartford and $255 a week from unemployment.

The plaintiff also credibly testified that his hours during the relevant time were inconsistent.   His unemployment compensation ceased being paid.   There was no proof of a consistent ability to pay the order.   The court does not find a willful failure to comply with the court orders.

The motion for contempt is denied.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. Earlier orders attempting to put an end to the conflicts of the parents were issued by the court, Frazzini, J., in August 2008.   Judge Adelman noted in his more recent attempt to do the same that “[t]he disputes ironically are over the exact same issues as in the past.”   In this memorandum, the court does not address motions that seek to modify the custody of the child—but the vast majority of the other issues are exactly the same as in the past:  the parties each complain that the other has interfered with their parenting time, exchanges are not appropriately conducted, and the child is not brought to her activities on time..  FN1. Earlier orders attempting to put an end to the conflicts of the parents were issued by the court, Frazzini, J., in August 2008.   Judge Adelman noted in his more recent attempt to do the same that “[t]he disputes ironically are over the exact same issues as in the past.”   In this memorandum, the court does not address motions that seek to modify the custody of the child—but the vast majority of the other issues are exactly the same as in the past:  the parties each complain that the other has interfered with their parenting time, exchanges are not appropriately conducted, and the child is not brought to her activities on time.

FN2. The motion contained other allegations of contempt, but as they were not pursued, the court finds them to have been abandoned..  FN2. The motion contained other allegations of contempt, but as they were not pursued, the court finds them to have been abandoned.

FN3. The plaintiff also sought to solicit testimony from the defendant with respect to her failure to take the child to games/practices in January and February 2013—but as of the conclusion of evidence on November 18, 2013, no motion for contempt had been filed with respect to such dates..  FN3. The plaintiff also sought to solicit testimony from the defendant with respect to her failure to take the child to games/practices in January and February 2013—but as of the conclusion of evidence on November 18, 2013, no motion for contempt had been filed with respect to such dates.

FN4. The guidelines further reflect that the number of hours used in the calculation for the plaintiff father was 8—but that cannot be correct as $304 divided by 8 hours results in the defendant earning approximately $38 an hour.   He testified that he was making approximately $12.40 an hour when he was working for the City of Hartford during the relevant time periods and approximately $10.25 an hour while working for CHD until January 11, 2013 when his pay was increased by CHD to $11.75 an hour..  FN4. The guidelines further reflect that the number of hours used in the calculation for the plaintiff father was 8—but that cannot be correct as $304 divided by 8 hours results in the defendant earning approximately $38 an hour.   He testified that he was making approximately $12.40 an hour when he was working for the City of Hartford during the relevant time periods and approximately $10.25 an hour while working for CHD until January 11, 2013 when his pay was increased by CHD to $11.75 an hour.

Olear, Leslie I., J.