Norberg-Hurlburt v. Hurlburt ( 2016 )

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JENNIFER NORBERG-HURLBURT v.
RICHARD M. HURLBURT
(AC 37244)
Alvord, Mullins and Pellegrino, Js.
Submitted on briefs October 9, 2015—officially released January 26, 2016
(Appeal from Superior Court, judicial district of
Litchfield, Hon. Charles D. Gill, judge trial referee
[dissolution judgment]; Ginocchio, J. [motion for
contempt, motion to terminate alimony].)
J. Keith Nolan filed a brief for the appellant
(plaintiff).
James D. Hirschfield filed a brief for the appellee
(defendant).
Opinion
ALVORD, J. The plaintiff, Jennifer Norberg-Hurlburt,
appeals from the postjudgment rulings of the trial court
granting the motion for contempt and the motion to
terminate alimony filed by the defendant, Richard M.
Hurlburt. On appeal, the plaintiff claims that the court
improperly (1) found her in contempt for failure to
make certain payments without allowing her to testify
as to her financial condition and (2) terminated her
alimony on the basis of cohabitation without allowing
her to testify as to her relationship with her fiance´e
and her living arrangements. We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our review of the plaintiff’s claims. The court,
Hon. Charles D. Gill, judge trial referee, dissolved the
parties’ seventeen year marriage on October 7, 2009.
At the time of the dissolution, the parties had two minor
children, aged fifteen and seventeen. The judgment of
dissolution incorporated by reference the parties’
‘‘divorce settlement agreement’’ (agreement), which
contained provisions regarding alimony, the marital res-
idence, and responsibility for outstanding debt. With
respect to alimony, the defendant was obligated to pay
the plaintiff $400 per week. The defendant could seek
to modify that amount ‘‘only upon [the plaintiff’s] cohab-
itation, which shall be defined as a relationship similar
to that of husband and wife.’’
With respect to the marital home, the defendant was
to transfer his interest in the parties’ jointly owned
residence in North Canaan to the plaintiff, and she was
thereafter responsible for ‘‘the mortgage(s), taxes,
insurance, and all other expenses and financial obliga-
tions on, related to and resulting from this property
. . . .’’ Paragraph 21 of the agreement further provided
in relevant part: ‘‘[I]t is hereby expressly agreed that,
notwithstanding the labels of any particular paragraph
hereof, all of the obligations created by this Agreement
are in the nature of support and therefore shall not be
dischargeable by either party in the event of bank-
ruptcy.’’
Sometime in 2013, the plaintiff relocated from Con-
necticut to New Jersey. On December 2, 2013, she filed
for federal bankruptcy protection under chapter 7 of
the United States Bankruptcy Code and received a dis-
charge in bankruptcy in March, 2014. On July 7, 2014, the
defendant filed a postjudgment motion for contempt,
claiming, inter alia, that the plaintiff had failed to pay
the mortgage on the former marital residence, had failed
to maintain the property and to keep it in repair, and
had failed to pay the real estate taxes, all as required
by the provisions in their agreement that had been incor-
porated into their dissolution judgment. Additionally,
on July 7, 2014, the defendant filed a postjudgment
motion to terminate his alimony obligation, claiming
that the plaintiff was ‘‘cohabitating with Russell Brown
in a relationship similar to that of husband and wife.’’
The defendant sought the modification pursuant to the
terms of the agreement.
The plaintiff filed a memorandum in opposition to
the defendant’s postjudgment motions on July 16, 2014.
In her opposition, she stated that she had ‘‘not remar-
ried,’’ but she ‘‘concede[d] she [was] in a relationship
with Russ Brown.’’ She argued that the defendant’s
motion to terminate her alimony should be denied
because the defendant had ‘‘not offered any evidence
of a financial impact from [her] relationship with Russ
Brown . . . .’’ With respect to the defendant’s motion
for contempt, the plaintiff did not contest the allega-
tions that she had failed to make the payments required
by the agreement, but she stated that she had ‘‘not
wilfully failed to make payments on any of her debts’’
and had been ‘‘struggling with her financial obligations
as best she could.’’
A hearing on the defendant’s motions and the plain-
tiff’s opposition thereto was held on July 21, 2014. At
that time, the defendant, his counsel, and the plaintiff’s
counsel were in attendance. The plaintiff, however, did
not appear. The plaintiff’s counsel, after saying that the
plaintiff was ‘‘unable to be here today,’’ asked the court
to read a letter from the plaintiff’s employer explaining
her absence. The court asked the defendant’s counsel
for his position on this development, and he responded:
‘‘Quite frankly, it’s not going to be as easy for me to
prove the motion to terminate alimony without [the
plaintiff] here. However, the last three times we’ve been
here, she doesn’t show up. The motion was marked—
came up on the calendar more than a week ago. I
marked it right away, early in the week, and sent it to
[the plaintiff’s counsel]. [The plaintiff] just doesn’t come
to court. So, I’ve told [the plaintiff’s counsel] that I’m
going to ask the court to go forward.’’ The court then
reviewed the letter1 from the plaintiff’s employer and
stated: ‘‘All right. I’m going to deny the continuance
request. So, we’re going to go forward today . . . .’’
The defendant’s counsel called the defendant to the
witness stand. Beginning with the motion for contempt,
the defendant testified that, pursuant to the terms of the
agreement, he had conveyed his interest in the marital
residence to the plaintiff. He stated that at that point,
she was responsible for the mortgage payments, taxes,
insurance, and all other expenses related to the prop-
erty. The defendant testified that the plaintiff failed to
make mortgage payments beginning in August, 2013,
with nonpayment continuing thereafter, and failed to
make payments for the homeowner’s insurance. Addi-
tionally, according to his testimony, the plaintiff had
failed to pay the real estate taxes on the marital resi-
dence, and a tax lien foreclosure action was then pend-
ing in Superior Court. The defendant testified that the
tax arrearage at that time was approximately $23,000.
The defendant’s counsel inquired as to whether the
defendant recently had viewed the North Canaan prop-
erty. The defendant responded in the affirmative, and
he described it as being abandoned and in a state of
disrepair. Several photographs were admitted into evi-
dence, without objection by the plaintiff’s counsel, and
the defendant indicated that the lawn had not been
mowed, the side entrance door was left open, a plastic
sheet covered a window in the back of the house, and
a pile of debris was located outside the house. At the
conclusion of the defendant’s direct testimony, he
requested attorney’s fees in the amount of $9000 to
cover his expenses in pursuing the subject motions.
During a very brief cross-examination, the plaintiff’s
counsel asked whether the subject property had been
listed for sale. The defendant acknowledged that it had
been and currently was on the market.
At the conclusion of cross-examination, the court
made a finding of contempt and ordered the plaintiff
to pay the defendant $2500 in attorney’s fees. Although
there was no evidence from the plaintiff presented to
the court, either testimonial or documentary, concern-
ing her financial situation, the plaintiff’s counsel made
the following statement: ‘‘Your Honor, she has not been
able to afford to pay these things. She would now be
trying to support two homes. She moved to New Jersey
to get herself out from under this—the—what she
regards as the spine of her husband and the harassment.
She got herself a job down there, but she can’t maintain
two homes. And this is her financial problem, she really
deserves to have a chance to get up here and testify
about it before she’s held in contempt.’’
The defendant’s counsel then proceeded to address
the motion for termination of alimony payments on the
ground of cohabitation, the request being made under
the modification provision contained in the agreement.
In questioning the defendant, his counsel asked whether
the plaintiff was living with Russell Brown. The defen-
dant responded: ‘‘Yes.’’ The defendant’s counsel then
asked to submit into evidence an article in the Water-
bury Republican-American, dated August 5, 2012, which
contained a picture of the plaintiff and Brown. The
article identified Brown ‘‘and his fianc[e´e] Jennifer
Norberg.’’ The plaintiff’s counsel said that he had no
objection, and the article was admitted as a full exhibit.
On the basis of the defendant’s testimony and the
exhibit, the defendant requested that his alimony obliga-
tion be terminated on the ground of cohabitation. The
plaintiff’s counsel did not cross-examine the defendant.
Counsel then made their arguments to the court on
the defendant’s motion for termination of alimony. The
defendant’s counsel, when asked by the court whether
he had any additional evidence on cohabitation,
responded: ‘‘If the court believes that they are living
together, I mean that’s akin to a husband and wife. If
the [plaintiff] was here, I would ask her if they’re having
relations with each other, but she’s not here. That cer-
tainly would be husband and wife. So, she’s avoided
court—I have no other evidence, Your Honor.’’ The
court ruled as follows: ‘‘Well, you bring up the last good
point; she’s not here to testify. If she did—if she’s not
testifying, could I draw a negative inference from the
fact that she’s not here to testify in regard to her living
conditions? I could. You did produce evidence that she
is engaged, which I thought was compelling. So, based
on those findings, I am going to make the finding that
the relationship is one of cohabitation in accordance
with that agreement and terminate [the defendant’s]
alimony payments.’’
When the plaintiff’s counsel asked the court to repeat
the ruling, the court responded: ‘‘She’s not here to
answer; she hasn’t come to court in the last three court
dates. [The defendant’s counsel] would have had [the
right] to question her about this cohabitation. There is
evidence that she is engaged. That evidence that [the
defendant’s counsel] produced was relevant to that
issue, and I’m going to draw [an] unfavorable inference
from the fact that she’s not here, and that unfavorable
inference will go to the issue of cohabitation. . . . I’m
terminating the alimony payment.’’
On August 11, 2014, the plaintiff filed a motion for
reargument pursuant to Practice Book § 11-11. In that
motion, representations were made as to what the plain-
tiff would have testified to if she had been present at
the July 21, 2014 hearing on the defendant’s motions.
The court summarily dismissed the plaintiff’s motion
on August 19, 2014. This appeal followed.
I
The plaintiff’s first claim is that the court improperly
‘‘found the plaintiff in contempt for failure to keep the
mortgage and property taxes on her North Canaan prop-
erty current, to maintain the same and to pay a student
loan2 without allowing her to testify as to her financial
condition.’’ Specifically, the plaintiff argues that the
court, ‘‘by not allowing her to testify as to her financial
condition . . . prevented her from showing that she
was not at fault in her nonpayment of the debts and
obligations in question, thereby precluding her from
making a valid defense.’’3
‘‘A finding of contempt is a question of fact, and our
standard of review is to determine whether the court
abused its discretion in [finding] that the actions or
inactions of the [alleged contemnor] were in contempt
of a court order. . . . To constitute contempt, a party’s
conduct must be wilful. . . . Noncompliance alone will
not support a judgment of contempt. . . . [T]he credi-
bility of witnesses, the findings of fact and the drawing
of inferences are all within the province of the trier of
fact. . . . We review the findings to determine whether
they could legally and reasonably be found, thereby
establishing that the trial court could reasonably have
concluded as it did.’’ (Internal quotation marks omit-
ted.) Grasso v. Grasso, 153 Conn. App. 252, 257, 100
A.3d 996 (2014).4
The plaintiff does not challenge the court’s finding
that she had not complied with the court’s orders to
make the mortgage payments, to pay the real estate
taxes, and to maintain the marital property. Instead,
she focuses on her claim that her noncompliance was
not wilful. Citing Tobey v. Tobey, 165 Conn. 742, 746, 345
A.2d 21 (1974), the plaintiff argues that ‘‘[t]he inability of
[the alleged contemnor] to obey an order of the court,
without fault on his [or her] part, is a good defense
to a charge of contempt.’’ (Internal quotation marks
omitted.) In her appellate brief, she claims that ‘‘[t]he
court had notice that [the] plaintiff was having financial
difficulties,’’ as stated by her counsel at the July 21,
2014 hearing. Further, as support for this claim, she
states that ‘‘[t]he plaintiff summarized these difficulties
in the conversation with her counsel on August 19, 2014,
as quoted in paragraph G of counsel’s affidavit,’’ which
was included in the appendix to her appellate brief.
The only information provided to the court at the
time of the July 21, 2014 hearing regarding the plaintiff’s
‘‘financial difficulties’’ consisted of the unsworn state-
ments of her counsel. ‘‘This court, as well as our
Supreme Court, repeatedly has stated that representa-
tions of counsel are not evidence. See, e.g., State v.
Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993), over-
ruled in part on other grounds by Label Systems Corp.
v. Aghamohammadi, 270 Conn. 291, 309, 852 A.2d 703
(2004); Cologne v. Westfarms Associates, 197 Conn. 141,
154, 496 A.2d 476 (1985); Baker v. Baker, 95 Conn. App.
826, 832, 898 A.2d 253 (2006); Irizarry v. Irizarry, 90
Conn. App. 340, 345, 876 A.2d 593 (2005); Prial v. Prial,
67 Conn. App. 7, 14, 787 A.2d 50 (2001); Tevolini v.
Tevolini, 66 Conn. App. 16, 26, 783 A.2d 1157 (2001);
Constantine v. Schneider, 49 Conn. App. 378, 397, 715
A.2d 772 (1998); Martin v. Liberty Bank, 46 Conn. App.
559, 562–63, 699 A.2d 305 (1997).’’ (Internal quotation
marks omitted.) Dionne v. Dionne, 115 Conn. App. 488,
493–94, 972 A.2d 791 (2009).
With respect to the affidavit of the plaintiff’s counsel
dated February 19, 2015, which was included in the
plaintiff’s appendix to her appellate brief, the represen-
tations contained therein relate to a conversation coun-
sel had with the plaintiff after the July 21, 2014 hearing.
The representations in the affidavit are not part of the
record on appeal. ‘‘A reviewing court cannot go beyond
the proper record before it in the determination of
issues presented on appeal.’’ Burns v. Quinnipiac Uni-
versity, 120 Conn. App. 311, 318 n.6, 991 A.2d 666, cert.
denied, 297 Conn. 906, 995 A.2d 634 (2010).
There was no evidence in the record to support the
plaintiff’s claim that she was financially unable to com-
ply with the court’s orders.5 Although it was the defen-
dant’s burden to demonstrate that the plaintiff was not
in compliance with the court’s orders, which he did,
it was the plaintiff’s burden to demonstrate that her
noncompliance was not wilful. ‘‘In a civil contempt pro-
ceeding, the movant has the burden of establishing . . .
the existence of a court order and noncompliance with
that order. . . . [I]nability to pay is a defense to a con-
tempt motion. However, the burden of proving inability
to pay rests upon the obligor.’’ (Citation omitted; inter-
nal quotation marks omitted.) Marshall v. Marshall, 151
Conn. App. 638, 651, 97 A.3d 1 (2014).
The plaintiff failed to meet her burden of demonstra-
ting an inability to pay the court-ordered obligations.
The court denied her counsel’s oral request to continue
the scheduled July 21, 2014 hearing, which request was
made the same day as the scheduled hearing, and no
testimony or other documentation was provided as evi-
dence to support her claimed defense. For these rea-
sons, we cannot conclude that the court abused its
discretion in granting the defendant’s motion for
contempt.
II
The plaintiff’s next claim is that the court improperly
‘‘terminated [her] alimony without allowing her to tes-
tify as to her relationship with her fiance´e and her living
arrangements.’’ The plaintiff argues: ‘‘Because the [trial
court] denied [the] plaintiff’s motion for reargument
and thereby denied her the opportunity to testify, what
would be her testimony on this issue is not available
in the record.’’ In her appellate brief, the plaintiff then
refers to her counsel’s February 19, 2015 affidavit as
an ‘‘offer of proof.’’ She concludes by stating that the
evidence before the trial court was insufficient to sup-
port the court’s finding of cohabitation.
In the court’s ruling on the defendant’s motion to
terminate his alimony obligation, the court found that
the plaintiff was cohabitating with Brown, as that term
was defined in the parties’ agreement. On the basis of
the exhibit demonstrating that the plaintiff and Brown
were engaged, and drawing an adverse inference from
the fact that she was not present to testify, the court
granted the defendant’s motion.6
We first set forth our standard of review of the court’s
decision. ‘‘[W]e will not disturb the trial court’s ruling
on a motion for modification of alimony or child support
unless the court has abused its discretion or reasonably
could not conclude as it did, on the basis of the facts
presented. . . . Furthermore, [t]he trial court’s find-
ings [of fact] are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Tow v. Tow, 142 Conn. App. 45,
49–50, 64 A.3d 128 (2013).
The court heard testimony from the defendant that
the plaintiff and Brown were cohabitating, and an
exhibit provided by the defendant demonstrated that
she and Brown were engaged. Additionally, the court
drew an adverse inference with respect to the issue of
cohabitation because the plaintiff failed to appear to
testify at the scheduled hearing. ‘‘[A] trier of fact gener-
ally may draw an adverse inference against a party for
its failure to rebut evidence.’’ In re Samantha C., 268
Conn. 614, 637, 847 A.2d 883 (2004). ‘‘After a prima facie
case is established, an adverse inference may be drawn
against a party for his or her failure to testify, unless
the party was entitled to rely upon one of the few
exceptional privileges that carry with it a protection
from adverse inferences.’’ Id., 638.
We conclude that the court had sufficient evidence,
under the circumstances of this case, to make the find-
ing that the plaintiff was cohabiting with Brown in a
‘‘relationship similar to that of husband and wife.’’
Under the provisions of the agreement, as incorporated
into the dissolution judgment, the defendant was enti-
tled to seek a modification of his alimony obligation.
We conclude that the court did not abuse its broad
discretion in granting the defendant’s motion to termi-
nate the alimony payments.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court handed the letter back to the plaintiff’s counsel. It was not
admitted as a full exhibit, nor was it marked for identification.
2
The court’s ruling did not mention the student loan.
3
The plaintiff does not make a separate claim that the court abused
its discretion in denying her oral motion on the day of the hearing for a
continuance. Additionally, there is no separate claim in the plaintiff’s appel-
late brief challenging the court’s denial of her motion for reargument.
4
Findings of indirect civil contempt must be supported by clear and
convincing evidence. Brody v. Brody, 315 Conn. 300, 302–303, 105 A.3d
887 (2015).
5
We are not persuaded by the plaintiff’s argument that her filing for
bankruptcy protection in December, 2013, standing alone, compelled the
conclusion that she was financially unable to comply with the court’s orders.
The parties clearly had contemplated at the time of their divorce that a
bankruptcy petition might be filed, by either or both parties, as evidenced
by paragraph 21 of the agreement incorporated into the dissolution judgment,
which provided that ‘‘all of the obligations created by this Agreement are
in the nature of support and therefore shall not be dischargeable by either
party in the event of bankruptcy.’’
6
The plaintiff makes no separate argument and provides no legal analysis
challenging the court’s denial of her motion for reargument. At the July 21,
2014 hearing, at which time the court denied her oral request for a continu-
ance, it noted that the plaintiff ‘‘hasn’t come to court in the last three
court dates’’ and, again, she was not there to answer the questions of the
defendant’s counsel with respect to the issue of cohabitation.