Eldridge v. Eldridge

¶1dissenting. The majority, by affirming the trial court’s finding of contempt against the plaintiff, Stephen C. Eldridge, for failing to comply with an alimony order, condones the invocation by the defendant, Phyllis Eldridge, of the court’s power of contempt as a trial tactic. In my view, the plaintiffs failure to pay the defendant alimony under the circumstances of this case did not amount to contempt of court.

¶2The clear language of the alimony order in this case provides that it was self-executing — that is, the plaintiff could reduce his alimony obligation to the defendant without returning to court. The trial court memorandum of decision by Hon. Irving Levine, judge trial referee, and the judgment file of November 14, 1983, provide that “ [t]he plaintiff shall pay to the defendant as periodic unallocated alimony and support for herself and the minor children the sum of $65,000 per year in twelve equal monthly installments on the tenth day of each month beginning November 10,1983. On the eighteenth birthday of each child, the annual sum shall be reduced by $15,000.” (Emphasis added.) It further provides “[o]ne half of the amount by which [the defendant’s] earnings exceed $25,000 shall be deducted from the periodic unallocated alimony and support hereinbefore awarded.” (Emphasis added.) This order with respect to earnings, like the order in the judgment reducing the plaintiffs unallocated alimony and support obligation when each child reached the age of eighteen, contains essentially the same mandatory language that it “shall” be reduced. No one questions that the order with *540respect to child support was self-executing upon the occurrence of the listed event, and, likewise, it should be beyond question that the order reducing the unallocated alimony and support is self-executing when the defendant’s annual earnings exceed $25,000. Accordingly, the plaintiff, who suspended his periodic alimony payments in August, 1994, after learning that the defendant’s earnings exceeded $25,000, was not in contempt because his credit for overpayment exceeded the alimony that was due to the defendant.

¶3The majority mistakenly relies on dicta from the Appellate Court’s decision in Eldridge v. Eldridge, 4 Conn. App. 489, 493-94, 495 A.2d 283 (1985), that the order was not self-executing in order to conclude that the plaintiff could not reduce his periodic alimony payments to the defendant until he sought judicial modification of the judgment. The Appellate Court stated that the defendant’s “entitlement to alimony under the initial award would be subject to modification upon motion by the plaintiff’ when the defendant’s earnings exceeded $25,000. Id., 494. The issue before the Appellate Court, however, was not whether the order was self-executing, but, rather, whether the trial court had the power to preclude modification of the order in the future.1Id. The Appellate Court did not have the authority on appeal to change the clear language of the order when that was not the issue, nor did it attempt to do so. Reliance, therefore, on the Appellate Court's characterization of the order to conclude that the plaintiff disobeyed a court order by not filing a motion for modification before he suspended the alirhony payments is misplaced. “[W]here parties under a mandatory judgment could be subjected to punishment as contemnors for violating *541its provisions, such punishment should not rest upon implication or conjecture, but the language . . . imposing [such] burdens [should be] specific and unequivocal so that the parties may not be misled thereby.” (Internal quotation marks omitted.) Blaydes v. Blaydes, 187 Conn. 464, 468, 446 A.2d 825 (1982).

¶4Moreover, the facts underlying this appeal clearly establish that the plaintiff did not act in contempt of court. It came to the attention of the plaintiff in July, 1994, that, since 1987, the annual earnings of the defendant exceeded $25,000, a fact she never disclosed to the plaintiff. The plaintiff, in a letter to the defendant dated July 10,1994, advised her that he would be reducing his periodic alimony payments and that he needed copies of her tax returns or other information so he could establish the amount of his overpayment.2 The *542defendant responded, on July 29, 1994,3 that she anticipated her “earnings for 1994 would be approximately” $35,415 and that the plaintiff was “free to make the necessary computations and adjustments consistent with the provisions of the [judgment] for the year 1994.” The defendant also explained that it was her position that, because she had financially contributed to the educational costs of the children, the plaintiff was not entitled to any alimony adjustments for prior years when her earnings exceeded $25,000.4 On August 7, 1994, the plaintiff, after receiving the defendant’s consent to make the necessary adjustments in his periodic alimony payments, suspended the alimony payments to the defendant.

¶5*543On November 1, 1994, the plaintiff filed with the trial court a motion for order requesting that the trial court order the defendant to disclose her earnings since January 1,1984, and that the trial court determine the extent to which the defendant’s earnings exceeded $25,000 for each of those years. In accordance with the old adage— the best defense is a good offense — the defendant, on December 13, 1994, filed a motion for contempt requesting that the trial court hold the plaintiff in contempt for suspending alimony payments for which the defendant had given her written consent. After a hearing, the trial court, Petroni, J., on November 13, 1995, specifically found that the defendant’s earnings over the previous nine years exceeded the $25,000 threshold in the alimony order by a total of $57,765.78. The trial court further found that the plaintiff should have paid the defendant from the date he terminated alimony payments the sum of $47,708.30, thereby determining that there was a net overpayment of $10,057.48 by the plaintiff.

¶6The trial court’s underlying finding that the plaintiff was entitled to a credit of $57,765.78 is consistent with the characterization that the order was self-executing and is inconsistent with the determination that it was an order requiring modification. First, the trial court’s own interpretation of Judge Levine’s order was that the reduction was mandatory. The trial court found that “Judge Levine clearly stated that when the defendant’s earnings from employment exceed $25,000, one half of that amount shall be deducted . . . from the alimony order.”5 (Emphasis in original.) Accordingly, the plaintiff was entitled to deduct that amount without seeking *544the court’s permission. Second, if the order was not self-executing, the plaintiffs failure to file a motion for modification of the alimony order until January 5,1995, would have meant that his alimony obligation for the years from 1987 to the end of 1994 remained at its original level of $35,000. Thus, under those circumstances, the plaintiff would not have overpaid the defendant. Third, the legislature and this court have made it clear that a trial court has no jurisdiction retroactively to modify an alimony order. See General Statutes § 46b-86 (a) (“[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification”); see, e.g., Sanchione v. Sanchione, 173 Conn. 397, 405-06, 378 A.2d 522 (1977) (trial court should not have given retroactive effect to its modification of order of weekly alimony). If the order was not self-executing, the earliest date on which the plaintiff could have received the benefit of a modified alimony obligation under the 1983 judgment was January 5, 1995, the date he filed his motion for modification. See General Statutes § 46b-86 (a) (“court may order modification with respect to any period during which there is a pending motion for modification of an alimony . . . order from the date of service of notice of such pending motion”). I can conclude only that the trial court awarded the plaintiff a credit for seven years of “overpayment” because it recognized that the order was self-executing; otherwise, most of the $57,765.78 credit would constitute a retroactive modification of the alimony order over which the court has no jurisdiction.

¶7Furthermore, even if the alimony reduction provision in the judgment could be construed as not being self-executing, I would still conclude that the trial court’s finding of contempt was an abuse of discretion and should be vacated. A party’s “good faith dispute or *545legitimate misunderstanding” of a support obligation may excuse a contempt. Jenks v. Jenks, 39 Conn. App. 139, 142, 663 A.2d 1123 (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.” (Citations omitted; internal quotation marks omitted.) Blaydes v. Blaydes, supra,187 Conn. 467. In the present case, the plaintiff made complete and timely alimony payments from the date of the judgment through August, 1994. Indeed, the trial court determined, on the basis of the plaintiff’s consistent record of making alimony payments, that he had not acted in bad faith. The plaintiff suspended his alimony payments to the defendant only after he had discovered that the defendant’s earnings exceeded $25,000, and after he had received her permission to adjust periodic payments in 1994.6 The plaintiff filed his motion for an order to have the court determine the status of an overpayment before the defendant filed her motion for contempt. Moreover, the plaintiff testified in the trial court that he had consulted with his attorney before he decided to stop making alimony payments in August, 1994. Under these circumstances, the trial court’s finding that the plaintiff was in contempt — a finding of deliberate defiance of a court order — was not justified.

¶8Furthermore, it would appear to me that the majority confuses civil contempt with criminal contempt when analyzing the trial court’s order of contempt. “[A] criminal contempt is conduct that is directed against the dignity and authority of the court. In contrast, civil contempt is conduct directed against the rights of the opposing party.” Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). “[I]t is the nature of the relief itself that is instructive in *546determining whether a contempt is civil or criminal.” Ullmann v. State, 230 Conn. 698, 709, 647 A.2d 324 (1994). “A contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.” Board of Education v. Shelton Education Assn., supra, 85. The majority argues that this is a case of civil contempt — which means that the relief ordered by the trial court should be designed to coerce the payment of alimony. Mays v. Mays, 193 Conn. 261, 266, 476 A.2d 562 (1984). The plaintiff, however, did not owe the defendant any alimony. Instead, as the trial court found, after crediting the plaintiff with his overpayment, the defendant owed the plaintiff $10,057.48. In short, the finding of contempt did not serve only the purposes of the complainant, but, rather, was designed in part by the trial court to punish the plaintiff.

¶9“In criminal contempt the sanction is punitive in order to vindicate the authority of the court.” (Internal quotation marks omitted.) Id. “Authority [of the court] can be and has been said to mean the [r]ight to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. . . . [It is] [o]ften synonymous with power.” (Internal quotation marks omitted.) Banks v. Thomas, 241 Conn. 569, 587, 698 A.2d 268 (1997). The majority argues that the trial court was entitled to hold the plaintiff in contempt because to exonerate him “would be an undue inducement to litigants’ exercise of self-help.” In other words, the trial court could punish the plaintiff in order to deter other litigants with alimony obligations from exercising self-help in contravention of the court’s authority. This contempt order can only be classified as criminal,7 and, therefore, must be reversed.

¶10*547Finally, the majority’s decision that the trial court’s award of attorney’s fees as punishment for the contempt was an abuse of discretion is totally inconsistent with its decision to uphold the trial court’s finding of contempt. The majority recognizes that it would not serve the interest of “ ‘right and justice’ ” to award substantial attorney’s fees to the defendant, the person whose conduct “precipitated the plaintiffs behavior and resulted in the motions that he filed and prevailed upon at his own expense.” Likewise, holding the plaintiff as a con-temner under the circumstances of this case would not serve the interest of “ ‘right and justice.’ ”

¶11Accordingly, I dissent.