Hall v. Hall , 182 Conn. App. 736 ( 2018 )

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HUGH F. HALL v. DEBORAH HALL
(AC 38834)
Lavine, Sheldon and Bear, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court holding
him in contempt for violating a court order and from the court’s denials
of his motion for reconsideration and the parties’ joint motion to open
and vacate the contempt judgment. Following the commencement of
the dissolution action, the parties’ entered into a pendente lite stipulation
to release certain funds held in an escrow account to them for deposit
into a joint bank account that required the signature of both parties
prior to any withdrawal of funds. The trial court approved the stipulation
and made it an order of the court. The parties then knowingly set up
a joint account that did not comply with the court’s order because
it permitted online access and, therefore, did not require the parties’
signatures prior to the withdrawal of funds. Thereafter, the plaintiff
unilaterally withdrew $70,219.99 from the joint account and deposited
the funds into his personal savings account, allegedly to protect the
funds from the defendant’s misuse. In response, the defendant filed a
motion for contempt alleging that the plaintiff had wilfully violated the
court’s order by withdrawing the funds. Following a hearing, the trial
court granted the motion for contempt, and the plaintiff filed a motion
for reconsideration. In support of his motion, the plaintiff submitted an
affidavit in which he averred that his counsel had advised him that he
could transfer funds from the joint account to prevent the defendant’s
dissipation of marital assets. He attached to his affidavit an e-mail
exchange allegedly between himself and his counsel discussing the sub-
ject withdrawal. The trial court denied the motion for reconsideration.
Thereafter, the parties entered into a separation agreement, which the
court incorporated into its dissolution judgment. In accordance with a
provision of the separation agreement, the parties filed a joint motion
to open and vacate the judgment of contempt on the ground that the
findings therein could interfere with the parties’ future employment.
Following a hearing, the court denied the motion, concluding, inter alia,
that there was no evidence presented that demonstrated the adverse
effect that the contempt finding would have on the plaintiff’s employ-
ment. On the plaintiff’s amended appeal to this court, held:
1. The plaintiff could not prevail on his claim that the trial court improperly
held him in contempt, which was based on his claim that he was not
in wilful violation of the court’s order because he relied on the advice
of counsel when he withdrew the subject funds from the parties’ joint
account in violation of the court’s order: there was no basis in the record
on which to conclude that the trial court abused its discretion in finding
the plaintiff in contempt, the record having lacked the evidentiary foun-
dation to support the plaintiff’s assertion that he testified repeatedly
during the hearing on the motion for contempt about his reliance on
his counsel’s advice when he withdrew the funds from the joint account,
as the plaintiff did not testify or present any evidence that he, in fact,
had relied on counsel’s advice but, rather, testified, at most, that he had
consulted with counsel about the appropriate course of action under
the circumstances, and this court could not speculate as to what the
plaintiff purportedly meant to say during the contempt proceedings or
assume that he actually relied on counsel’s advice; moreover, this court
was not persuaded by the plaintiff’s claim that the trial court com-
pounded its error by denying his motion for reconsideration because it
ignored evidence that he had relied on the advice of counsel when
withdrawing the funds, as his submission of additional evidence in
support of his motion in the form of his affidavit and the e-mail exchange
allegedly between himself and his counsel amounted to an attempted
impermissible second bite of the apple after a multiday hearing on the
defendant’s motion for contempt.
2. The trial court did not abuse its discretion in denying the parties’ joint
motion to open and vacate the judgment of contempt on the basis of
its conclusion that there was no evidence presented demonstrating the
adverse effect that the contempt finding would have on the plaintiff’s
employment; although the plaintiff and his counsel both argued during
the proceedings on the motion to open and vacate that the contempt
finding would be very deleterious to the plaintiff’s career, argument is
not evidence, and the plaintiff failed to point to any evidence in the
record that supported his claim that the contempt finding would have
an adverse effect on his career.
Argued December 6, 2017—officially released June 19, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Colin, J.,
issued an order in accordance with the parties’ stipula-
tion; thereafter, the court, Tindill, J., granted the defen-
dant’s motion for contempt; subsequently, the court,
Tindill, J., denied the plaintiff’s motion for reconsidera-
tion; thereafter, the matter was tried to the court, Hon.
Stanley Novack, judge trial referee; judgment dissolving
the marriage and granting certain other relief in accor-
dance with the parties’ separation agreement; subse-
quently, the plaintiff appealed to this court; thereafter,
the court, Tindill, J., denied the parties’ joint motion
to open and vacate the judgment of contempt, and the
plaintiff filed an amended appeal with this court; subse-
quently, the court, Tindill, J., issued an articulation and
a memorandum of decision in compliance with an order
of this court. Affirmed.
Barbara M. Schellenberg, with whom, on the brief,
was Richard L. Albrecht, for the appellant (plaintiff).
Opinion
LAVINE, J. In this amended appeal, the plaintiff, Hugh
F. Hall, appeals from the trial court’s judgment of civil
contempt rendered against him because he, in violation
of an order of the court, unilaterally withdrew funds
from a joint bank account and deposited them into
his personal savings account, and because the parties
placed the funds in an account that did not meet the
requirements of the court order. On appeal, the plaintiff
claims that the court (1) improperly held him in con-
tempt although he allegedly relied on the advice of
counsel when he withdrew the funds, and (2) improp-
erly denied the parties’ joint motion to open and vacate
the judgment of contempt. We affirm the judgment of
the trial court.
The following undisputed facts and procedural his-
tory provide the context for this appeal. The parties
were married on August 10, 1996, and have three chil-
dren together. On February 3, 2014, the plaintiff com-
menced a dissolution action. The parties subsequently
entered into a pendente lite stipulation on October 27,
2014, which provided in relevant part: ‘‘The funds cur-
rently being held in escrow [by a law firm] in the approx-
imate amount of $533,588 shall be released to the parties
for deposit into a joint bank account requiring the signa-
ture of both parties prior to any withdrawals . . . .’’
The court, Colin, J., approved the parties’ stipulation
and made it a court order. After this order, the parties
set up a joint account and transferred the escrow funds
into it.
Approximately one year later, on September 23, 2015,
the defendant, Deborah Hall, filed a motion for con-
tempt. She alleged that on September 22, 2015, the plain-
tiff committed a wilful violation of the October 27, 2014
court order when he withdrew the sum of $70,219.99
from the joint account—the balance of the account
at the time—and placed it into a separate, personal
account.1 Following an evidentiary hearing, the court,
Tindill, J., on December 7, 2015, granted the defen-
dant’s motion for contempt. Thereafter, the plaintiff,
who then was self-represented, filed a motion for recon-
sideration, which the court denied without issuing a
written decision.
Subsequent to the court’s judgment of contempt; see
footnote 1 of this opinion; on January 27, 2016, the
parties entered into a separation agreement. That same
day, the court, Hon. Stanley Novack, judge trial referee,
accepted the parties’ separation agreement and incor-
porated it into its judgment of dissolution. Section 10
of the separation agreement provided in relevant part
as follows: ‘‘The parties stipulate and agree that they
will file a joint motion to open and vacate the findings
of contempt in that they believe such findings could
interfere with the parties’ future employment. . . . The
parties understand that this motion must be filed within
four (4) months of each of the orders and it is within
the discretion of the Court to act thereon.’’ Also on
January 27, 2016, the plaintiff filed an appeal from the
court’s contempt judgment2 and its denial of his motion
for reconsideration.
Five days later, on February 1, 2016, the parties filed
a joint motion to open and vacate the judgment of
contempt requesting that the court vacate its order of
contempt. The parties specifically relied on § 10 of their
separation agreement in support of their joint motion
to open and vacate. Judge Tindill denied the joint
motion to open and vacate on March 9, 2016, without
issuing a written decision. The plaintiff then filed an
amended appeal on March 29, 2016, challenging the
denial of the motion to open and vacate. The plaintiff’s
amended appeal is now before this court. Additional
facts and procedural history will be set forth as nec-
essary.
I
The plaintiff’s first claim is that the trial court improp-
erly held him in contempt of court. He argues that a
court should not find that a litigant wilfully violates a
court order when he or she reasonably acts in reliance
on counsel’s advice. According to the plaintiff, his attor-
ney ‘‘advised him’’ to withdraw the funds from the joint
account in violation of the October 27, 2014 court order,
and the court failed to address ‘‘the evidence on advice
of counsel, despite the fact that [he] testified about this
repeatedly.’’ He also claims that the court ‘‘compounded
its error by denying reconsideration’’ because it over-
looked the evidence demonstrating that he in fact relied
on counsel’s advice in withdrawing funds from the joint
account. We are unpersuaded.
The record and the court’s written memorandum of
decision on the defendant’s motion for contempt reveal
the following undisputed facts and procedural history.
After the parties set up the joint bank account pursuant
to the court’s October 27, 2014 order, they knew that
the account did not comply with that order ‘‘the very
first day’’ they opened it. More specifically, the joint
account they set up permitted online access and, there-
fore, did not require signatures from either party, as
required by the order, prior to the withdrawal or trans-
fer of funds. The plaintiff testified that banks no longer
require dual signatures on accounts. Nonetheless, the
court order mandating that the funds be placed in an
account ‘‘requiring the signature of both parties prior
to any withdrawals’’ was not modified before the defen-
dant filed her motion for contempt.
At some point thereafter, the plaintiff became con-
cerned that the defendant was unilaterally withdrawing
funds from the joint account and spending them on
alcohol and drugs. Therefore, according to the plaintiff,
on September 22, 2015, he withdrew the $70,219.99 from
the joint account, without seeking the court’s approval,
in an attempt to preserve the remaining marital assets
contained in that account. He then placed the with-
drawn funds into a separate account solely in his name
that the defendant could not access. On November 2,
2015, he testified: ‘‘I felt I was complying with the terms
of the court order by moving the funds and wanting to
put them into an account that did comply with the court
order. And I demanded that [the defendant] meet me
at a bank where we could set up such an account that
did comply with the order.’’ Immediately after making
this statement, the following examination took place
regarding the September 22, 2015 withdrawal of the
$70,219.99 from the joint account:
‘‘The Court: Were you represented by counsel at
that time?
‘‘[The Plaintiff]: Yes, I did consult with counsel.
‘‘[The Defendant’s Counsel]: Yes. And so is your testi-
mony, Mr. Hall—because I’m hearing you say two differ-
ent things—is your testimony today [that] the reason
why you moved the account, the money from the
account, was because it didn’t comply with the original
court order or was it because you had a concern that
[the defendant] was becoming drug-dependent at that
point in time?
‘‘[The Plaintiff]: The reason I felt action had to be
taken was because I had recently learned about her
drug abuse. The reason I felt that it was justified in
acting to move the funds at that time was in order—
so that I could comply with the court order.’’ (Empha-
sis added.)
The court then adjourned for the day, and the parties
did not appear in court again in connection with the
contempt proceeding until December 1, 2015. During
the December 1, 2015 hearing, the parties revisited the
plaintiff’s September, 2015 withdrawal of the
$70,219.99. The plaintiff again testified that he withdrew
the $70,219.99 from the joint account because the defen-
dant was withdrawing funds from that same account
and ‘‘spending it on cocaine binges.’’ The court then
asked the plaintiff, ‘‘And when was it that you removed
the money, September what?’’ In response, the plaintiff
testified, ‘‘Sometime in September after consulting
with my counsel about the situation.’’ (Emphasis
added.)
At various times during the proceeding, the plaintiff
testified that he withdrew funds from the parties’ joint
account after consulting with counsel, but did not tes-
tify that he was advised by counsel to withdraw the
$70,219.99 before he did so.3 When the plaintiff’s coun-
sel asked him why he should not be held in contempt,
the plaintiff testified: ‘‘I believe that what I was doing
was in order to comply with Judge Colin’s orders from
October, 2014. And that I was not utilizing the funds in
any way in violation of the spirit of that agreement and
that I took steps to try and work with her to comply
with the order, set up a compliant account but at that
point in time, there was no further cooperation on her
side. Furthermore, I would say throughout the entire
process, I was consulting with counsel about what was
the proper course of action.’’ (Emphasis added.)
The court completed the evidentiary portion of the
hearing on December 1, 2015. The parties agreed that
the record contained sufficient evidence for the court
to rule on both motions for contempt; see footnote 1
of this opinion; and waived argument.
In its December 7, 2015 memorandum of decision,
the court found that the plaintiff wilfully had violated
the court’s October 27, 2014 order. The court first found
that, on April 28, 2015, the plaintiff ‘‘unilaterally and
without the defendant’s consent, withdrew $237,643.11
and deposited it into his own . . . savings account.’’4
It also found that, ‘‘[o]n September 22, 2015, the plaintiff
wilfully violated the order a second time when he moved
$70,219.99 from the joint account to that same savings
account. Unlike the account into which the escrow
funds were originally deposited pursuant to the court
order, the defendant did not have access to the account
into which the money was transferred.’’ The court fur-
ther found that the plaintiff acknowledged that his con-
duct violated the court order, but that he asserted five
reasons as to why it was not ‘‘wilful.’’ The court rejected
each of the plaintiff’s contentions. It did not find that
the plaintiff had relied on the advice of counsel when
he transferred the funds into his personal account, nor
did it state that the plaintiff made any argument to
that effect.
After the court found the plaintiff in contempt, the
plaintiff, then self-represented, filed a motion for recon-
sideration, which was later amended after he retained
new counsel. Among other claims, he asserted that ‘‘the
court inquired of the plaintiff as to whether in moving
funds from the parties’ joint account he acted on the
advice of counsel, to which he testified that he had.’’
He claimed that his previous counsel did not pursue
this line of questioning and also ‘‘did not offer into
evidence exculpatory e-mails from September, 2015.’’ In
support of his motion for reconsideration, the plaintiff
submitted an affidavit in which he averred that in
August, 2015, his previous counsel had advised him that
he could transfer funds from the joint account in order
to prevent dissipation of marital assets.5 He further
asserted, for the first time, that his previous counsel
confirmed that advice via e-mail in September, 2015. In
support of this assertion, the plaintiff attached to his
affidavit an e-mail chain allegedly between himself and
his previous counsel discussing the September 22, 2015
withdrawal. The court denied the motion for reconsid-
eration on January 4, 2016, without issuing a written
decision.
On July 15, 2016, the plaintiff filed a motion for articu-
lation, requesting that the court provide the factual and
legal bases for denying both the motion for reconsidera-
tion and the joint motion to open and vacate. See part
II of this opinion. On July 27, 2016, the court denied
the plaintiff’s motion for articulation, and the plaintiff
subsequently filed in this court a motion for review of
that denial. This court granted the motion for review
and, on October 26, 2016, ordered the court to (1) articu-
late the factual and legal bases for its denial of the
plaintiff’s motion for reconsideration, and (2) issue a
written memorandum of decision detailing the factual
and legal bases for its denial of the joint motion to open
and vacate.
On January 9, 2017, in compliance with this court’s
October 26, 2016 order, the trial court issued an articula-
tion, detailing its factual and legal reasons for denying
the plaintiff’s motion for reconsideration. Although the
court set forth in great detail the reasons for its decision,
only the following portions are directly relevant to this
appeal. It initially noted ‘‘that there had been no misap-
prehension of facts by the court.’’ The court determined
that it was undisputed that the plaintiff violated the
court order by making the two separate withdrawals
of $237,643.11 and $70,219.99 from the joint account, a
total of $307,863.10. It also stated that the plaintiff ‘‘is
a licensed attorney in New York and Massachusetts and
therefore has a better understanding and appreciation
of the law and legal procedures than the average litigant
or layperson.’’ The plaintiff’s assertions in his motion
for reconsideration, according to the court, also ‘‘vali-
date[d] [its] finding that [he] wilfully engaged in self-
help . . . .’’ Finally, it stated that the plaintiff’s ‘‘dissat-
isfaction with the services and counsel of his attorney
of record during the evidentiary hearing is not a basis for
reconsideration of the court’s finding of wilful contempt
based on the evidence . . . .’’
We now turn to the legal principles governing our
review of the plaintiff’s claim. ‘‘[O]ur analysis of a [civil]
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. . . . This is a legal
inquiry subject to de novo review. . . . Second, if we
conclude that the underlying court order was suffi-
ciently clear and unambiguous, we must then determine
whether the trial court abused its discretion in issuing,
or refusing to issue, a judgment of contempt, which
includes a review of the trial court’s determination of
whether the violation was wilful or excused by a good
faith dispute or misunderstanding.’’ (Internal quotation
marks omitted.) Giordano v. Giordano, 127 Conn. App.
498, 502, 14 A.3d 1058 (2011).
‘‘A party to a court proceeding must obey the court’s
orders unless and until they are modified or rescinded,
and may not engage in self-help by disobeying a court
order to achieve the party’s desired end. . . .
‘‘The court has an array of tools available to it to
enforce its orders, the most prominent being its con-
tempt power. Our law recognizes two broad types of
contempt: criminal and civil. . . . The two are distin-
guished by the type of penalty imposed. . . .
‘‘To impose contempt penalties, whether criminal or
civil, the trial court must make a contempt finding, and
this requires the court to find that the offending party
wilfully violated the court’s order; failure to comply
with an order, alone, will not support a finding of con-
tempt. . . . Rather, to constitute contempt, a party’s
conduct must be wilful. . . . A good faith dispute or
legitimate misunderstanding about the mandates of an
order may well preclude a finding of wilfulness. . . .
Whether a party’s violation was wilful depends on the
circumstances of the particular case and, ultimately, is
a factual question committed to the sound discretion
of the trial court. . . . Without a finding of wilfulness,
a trial court cannot find contempt and, it follows, cannot
impose contempt penalties.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.)
O’Brien v. O’Brien, 326 Conn. 81, 97–99, 161 A.3d 1236
(2017). The clear and convincing evidence standard of
proof applies to civil contempt proceedings like those
at issue here. See Brody v. Brody, 315 Conn. 300, 318–19,
105 A.3d 887 (2015).
The plaintiff does not challenge the court’s finding
that the October 27, 2014 order, which incorporated
the parties’ stipulation, was clear and unambiguous.6
He focuses his appeal instead on the court’s judgment of
contempt. He argues that in withdrawing the $70,219.99
from the parties’ joint account in September, 2015, he
acted on the advice of counsel. He states in support of
his argument that he ‘‘testified about this repeatedly’’
during the contempt proceeding and that ‘‘his former
attorney advised him’’ to remove the funds from the
joint account. (Emphasis added.) We disagree that the
plaintiff testified, or presented any other evidence, that
he relied on counsel’s advice. At most, he testified that
he had consulted with his attorney about the appro-
priate course of action under the circumstances. Nor
did the court specifically ask the plaintiff whether he
acted on the advice of counsel in connection with the
September, 2015 transfer of the $70,219.99 from the
parties’ joint account into a separate account that the
defendant could not access. Rather, the court simply
asked, ‘‘Were you represented by counsel at that time?’’
And the plaintiff responded, ‘‘Yes, I did consult with
counsel.’’ (Emphasis added.) The record, therefore,
does not support the plaintiff’s argument on appeal that
he repeatedly testified about his reliance on counsel’s
advice when he withdrew the $70,219.99 from the par-
ties’ joint account in violation of the October 27, 2014
court order. Nor does it support his argument that coun-
sel advised him to do so. The record therefore lacks
the evidentiary foundation necessary for our favorable
consideration of the plaintiff’s argument. See Baker v.
Baker, 95 Conn. App. 826, 832, 898 A.2d 253 (2006).
In Baker, the trial court held the defendant in con-
tempt for failing to make certain alimony and child
support payments pursuant to a pendente lite order.
See id., 830. While the defendant was testifying in con-
nection with the contempt proceeding brought against
him for his failure to pay, his counsel attempted to elicit
testimony that ‘‘when he failed to make the required
payments, he did so in reliance on her legal advice.
The plaintiff’s counsel objected to these questions as
attempts to solicit hearsay, and the court sustained
the objections.’’ (Footnote omitted.) Id. During closing
arguments, the defendant’s counsel ‘‘argued that her
client’s noncompliance with the court’s order was not
wilful because . . . [h]e relied on the advice of coun-
sel.’’ (Internal quotation marks omitted.) Id.
Much like the plaintiff in the present case, the defen-
dant in Baker argued that his conduct was not wilful.
See id. This court rejected that argument in Baker,
holding that ‘‘there was no competent evidence before
the court to establish that [the defendant acted on his
counsel’s advice].’’ Id., 831–32. This court noted that
‘‘[i]n urging us to conclude that reliance on counsel’s
advice is a defense to contempt, the defendant expects
this court to assume that he so relied.’’ Id., 832. Because
counsel’s representations that the defendant acted on
her legal advice were not evidence and it was improper
for an appellate court to find facts, the defendant’s
claim failed. See id., 832–33.
The record of the contempt proceedings in the pre-
sent case similarly lacks the evidentiary foundation
claimed by the plaintiff.7 He, too, asks us to ‘‘assume
that he so relied [on his counsel’s advice]’’; id., 832;
when he withdrew the $70,219.99 from the parties’ joint
account in violation of the court order on the basis of
his testimony that he consulted with counsel about
‘‘what was appropriate’’ under the circumstances. Con-
sulting with counsel and actually relying on counsel’s
advice, in our view, are not necessarily the same thing;
consulting and thereafter relying on the advice provided
involves two separate steps. One need not be a lawyer,
like the plaintiff, to appreciate this distinction. More-
over, we cannot speculate as to what the plaintiff pur-
portedly meant to say during the contempt proceedings.
See Baker v. Baker, supra, 95 Conn. App. 832; see also
New Hartford v. Connecticut Resources Recovery
Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009)
(speculation and conjecture have no place in appel-
late review).
It was not error for the court to find that the plaintiff
unilaterally withdrew the $70,219.99 from the joint
account in violation of its October 27, 2014 order. The
court construed his conduct to be a form of impermissi-
ble ‘‘self-help’’ and found that he ‘‘wilfully violated the
[court] order . . . .’’ See, e.g., O’Brien v. O’Brien,
supra, 326 Conn. 97 (party ‘‘may not engage in ‘self-
help’ by disobeying a court order to achieve the party’s
desired end’’). We cannot conclude that the trial court
abused its discretion under the circumstances when it
found the plaintiff in contempt. See, e.g., Giordano v.
Giordano, supra, 127 Conn. App. 502.
We similarly reject the plaintiff’s claim that the trial
court ‘‘compounded its error’’ when it denied his motion
for reconsideration. ‘‘[T]he purpose of a reargument is
. . . to demonstrate to the court that there is some
decision or some principle of law which would have
controlling effect, and which has been overlooked, or
that there has been a misapprehension of facts. . . .
[A] motion to reargue . . . is not to be used as an
opportunity to have a second bite of the apple or to
present additional cases or briefs which could have
been presented at the time of the original argument.’’
(Internal quotation marks omitted.) Chartouni v.
DeJesus, 107 Conn. App. 127, 129, 944 A.2d 393, cert.
denied, 288 Conn. 902, 952 A.2d 809 (2008). We review
a trial court’s denial of a motion for reconsideration
for an abuse of discretion. Shore v. Haverson Architec-
ture & Design, P.C., 92 Conn. App. 469, 479, 886 A.2d
837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988
(2006). ‘‘When reviewing a decision for an abuse of
discretion, every reasonable presumption should be
given in favor of its correctness. . . . As with any dis-
cretionary action of the trial court . . . the ultimate
[question for appellate review] is whether the trial court
could have reasonably concluded as it did.’’ (Internal
quotation marks omitted.) Liberti v. Liberti, 132 Conn.
App. 869, 874, 37 A.3d 166 (2012).
The court stated that it did not misapprehend the
facts actually presented to it during the hearing on the
motions for contempt. As previously discussed, and
contrary to his argument on appeal, the plaintiff did
not testify in that hearing that he relied on counsel’s
advice when he made the September, 2015 withdrawal
in violation of the October, 2014 court order. Nor did
the court specifically ‘‘[inquire] of the plaintiff as to
whether in moving funds from the parties’ joint account
he acted on the advice of counsel, to which he testified
that he had,’’ as the plaintiff argued in his motion for
reconsideration. Therefore, both his argument and his
attempts to introduce additional evidence in support
of that argument—an affidavit indicating that he relied
on counsel’s advice and the e-mail exchange allegedly
between him and his previous counsel—amounted to
an attempted impermissible second bite of the apple
after a multiday hearing. See, e.g., Chartouni v.
DeJesus, supra, 107 Conn. App. 129.8 Accordingly, we
find no basis in the record on which to conclude that the
court abused its discretion when it denied the plaintiff’s
motion for reconsideration.
II
The plaintiff’s second claim is that the trial court
improperly denied the parties’ joint motion to open and
vacate the judgment of contempt. He argues that the
court’s memorandum of decision demonstrates that it
‘‘ignored or misconstrued important evidence and state-
ments made at the hearing on the motion, thereby
improperly turning a remedial order into a punitive
one.’’ According to the plaintiff, the trial court improp-
erly concluded that there was no evidence before it
demonstrating the ‘‘adverse professional effect’’ that
the contempt finding would have on his career.9 We
are unpersuaded.
The record and the court’s memorandum of decision
disclose the following undisputed facts and relevant
procedural history. On February 1, 2016, the parties,
within the four month period set forth in General Stat-
utes § 52-212a, filed a joint motion to open and vacate
the judgment of contempt. The motion stated in relevant
part: ‘‘The parties submit that it would be in the interest
of justice to vacate [the findings of contempt] and other-
wise leave the compliance orders in force.’’
The parties appeared before the court on February
22, 2016, to argue that particular motion. During oral
argument, the plaintiff asserted: ‘‘I do believe there’s a
sound basis for [the motion to open and vacate]. I also
do think that it’s very deleterious to my career to have
this contempt citation. I’m in the banking—I’m a lawyer.
It’s a question on every application, have you been . . .
in contempt of any order? It would have ramifications
for my licensing in the securities industry, et cetera. I
think, likewise, the various issues that arose with [the
defendant’s] potential contempt . . . I think the best
thing for us now is to just move on with a clean slate.
We had a very contentious fall. Things are working well
with us now. And it seems in the best interest of all
parties to just start fresh and allow us to put that behind
us.’’10 Richard Albrecht, the plaintiff’s newly retained
attorney, was arguing another matter in a different
courtroom and, therefore, was not present when the
plaintiff made these statements. The court then contin-
ued the matter to a later date.
The parties again appeared before the court on March
7, 2016, to argue the motion to open and vacate. During
that proceeding, Albrecht argued, inter alia, that the
motion to open and vacate should be granted because
the contempt finding would impact the plaintiff’s pro-
fessional career. As previously set forth, the court
denied the joint motion to open and vacate on March
9, 2016, without issuing a written decision.
On January 10, 2017, in compliance with this court’s
October 26, 2016 order, the trial court issued a written
decision detailing the factual and legal reasons for its
denial of the joint motion to open and vacate. The basis
for the motion, according to the court, was that the
adverse effects of a contempt finding on the plaintiff’s
professional career placed the parties in a ‘‘ ‘unique
situation’ ’’ and, therefore, that the ‘‘ ‘interests of jus-
tice’ ’’ required vacatur of the contempt findings. The
court stated, however, ‘‘[t]here is no evidence that the
parties’ circumstances are unique or distinguishable
such that the findings of wilful contempt . . . should
be vacated in the interests of justice.’’ It also stated
that ‘‘[t]here is no evidence of what, specifically, is or
will be the adverse professional effect on the [plaintiff’s]
employment or career.’’ Although the court stated that
the defendant did not oppose the motion to open and
vacate, the court found that she did not oppose it essen-
tially to bring the proceedings to a close.
‘‘We first set forth the legal standards governing our
review. . . . A motion to open a judgment is governed
by . . . § 52-212a and Practice Book § 17-4. Section 52-
212a provides in relevant part: Unless otherwise pro-
vided by law and except in such cases in which the
court has continuing jurisdiction, a civil judgment or
decree rendered in the Superior Court may not be
opened or set aside unless a motion to open or set aside
is filed within four months following the date on which
it was rendered or passed. . . . Practice Book § 17-4
states essentially the same rule. . . .
‘‘We do not undertake a plenary review of the merits
of a decision of the trial court to grant or to deny a
motion to open a judgment. . . . In an appeal from a
denial of a motion to open a judgment, our review is
limited to the issue of whether the trial court has acted
unreasonably and in clear abuse of its discretion. . . .
In determining whether the trial court abused its discre-
tion, this court must make every reasonable presump-
tion in favor of its action. . . . The manner in which
[this] discretion is exercised will not be disturbed so
long as the court could reasonably conclude as it did.’’
(Citations omitted; internal quotation marks omitted.)
Gordon v. Gordon, 148 Conn. App. 59, 64–65, 84 A.3d
923 (2014).11
After reviewing the record and the court’s memoran-
dum of decision, we conclude that the court did not
abuse its discretion in denying the motion to open and
vacate.12 On February 22, 2016, the plaintiff argued that
the contempt finding would be ‘‘very deleterious to [his]
career.’’ Albrecht made the same argument on March
7, 2016. Nevertheless, ‘‘argument is not evidence. As
judges routinely admonish juries: Argument is argu-
ment, it is not evidence. . . . So, too, arguments of a
pro se litigant are not proof.’’ (Citation omitted; internal
quotation marks omitted.) In re Justin F., 116 Conn.
App. 83, 96, 976 A.2d 707, appeal dismissed, 292 Conn.
913, 973 A.2d 660, cert denied, 293 Conn. 914, 978 A.2d
1109 (2009), cert. denied sub nom. Albright-Lazzari v.
Connecticut, 559 U.S. 912, 130 S. Ct. 1298, 175 L. Ed.
2d 1087 (2010); see also Baker v. Baker, supra, 95 Conn.
App. 832–33 (representations of counsel are not evi-
dence). Notwithstanding the arguably commonsense
appeal of this argument, the plaintiff fails to point to
where in the record supporting evidence exists, and
we are unable to find such evidence in the record.
Accordingly, the court did not abuse its discretion in
denying the joint motion to open and vacate.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also filed a motion for contempt on September 24, 2015,
alleging that the defendant violated the same October 27, 2014 order on
various occasions. The court granted the plaintiff’s motion in part and denied
it in part. The defendant did not submit a brief in this appeal and, therefore,
does not challenge the contempt finding as to her. As discussed in this
opinion, however, the court’s contempt judgment against the defendant is
partially implicated by this appeal insofar as the joint motion to open and
vacate the judgments of contempt sought to vacate the court’s judgments
of contempt rendered against each of the parties. Because the judgment of
contempt against the defendant is not otherwise implicated by this appeal,
however, references in this opinion to the judgment of contempt refers to
the judgment rendered against the plaintiff.
2
‘‘[A] trial court ruling on a motion for contempt in a marital dissolution
action is a final judgment for purposes of appeal.’’ (Internal quotation marks
omitted.) Baker v. Baker, 95 Conn. App. 826, 827 n.1, 898 A.2d 253 (2006);
see also Bryant v. Bryant, 228 Conn. 630, 636, 637 A.2d 1111 (1994) (civil
contempt finding is appealable final order); Keller v. Keller, 158 Conn. App.
538, 544, 119 A.3d 1213 (2015) (finding of contempt not subsumed into final
judgment of divorce action), appeal dismissed, 323 Conn. 398, 147 A.3d 146
(2016) (certification improvidently granted).
3
For example, the court asked the plaintiff to explain the timing of his
withdrawal. He testified: ‘‘That’s when I was discussing with my counsel
the appropriate course of action because once there was the violation by
[the defendant] of the verbal agreement that we had online access, where
we’d agreed we would just not do it even though the court order said
something different from what we were doing, we were—we thought [we]
were about to settle the entire case, we felt that it was best to just see it
through. And it was only when the settlement process fell completely apart
and she appeared to be acting erratically, we became more concerned that
something had to be done.’’ (Emphasis added.)
In addition, when the court asked him what prevented him from withdraw-
ing the funds before September, he testified: ‘‘Nothing prevented me. It was
more in discussion with counsel on what was the appropriate thing to
do in that period of time when we were at the eve of settling the case.’’
(Emphasis added.)
4
The defendant’s motion for contempt alleged only that the plaintiff vio-
lated the court’s order by withdrawing the $70,219.99 from the joint account.
During the hearing on November 2, 2015, counsel for the defendant stated
that the initial $237,643.11 withdrawal was simply offered ‘‘on the issue of
wilfulness’’ regarding the $70,219.99 withdrawal. Nonetheless, the court
concluded that such withdrawal was in violation of the court order. The
plaintiff makes no claim that he relied on the advice of counsel with respect
to that initial unilateral withdrawal from the joint account. Because of the
result we reach in this opinion, we do not need to analyze the effect of the
court’s conclusion with respect to the initial unilateral withdrawal of
$237,643.11.
5
This court may take judicial notice of filings in the Superior Court. See,
e.g., State v. Dyous, 153 Conn. App. 266, 279–80, 100 A.3d 1004 (2014), appeal
dismissed, 320 Conn. 176, 128 A.3d 505 (2016) (certification improvi-
dently granted).
6
On the basis of our independent review of the parties’ stipulation, which
was incorporated into the court’s October 27, 2014 order, we agree with
the court’s finding that the order was sufficiently clear and unambiguous
so as to support a judgment of contempt. See Giordano v. Giordano, supra,
127 Conn. App. 502.
7
Our review of the court’s judgment holding the plaintiff in contempt is
limited to the evidence actually before it on December 7, 2015, the date of
its memorandum of decision finding him in contempt. As discussed later in
this opinion, it would be improper for us to consider the evidence subse-
quently submitted in support of the plaintiff’s motion for reconsideration,
namely, his affidavit and the e-mails he attached to it. See, e.g., Chartouni
v. DeJesus, 107 Conn. App. 127, 129, 944 A.2d 393 (motion to reargue or
reconsider is not opportunity to get second bite of apple), cert. denied, 288
Conn. 902, 952 A.2d 809 (2008).
8
The court also properly concluded that the plaintiff’s reliance on O’Brien
v. O’Brien, 161 Conn. App. 575, 128 A.3d 595 (2015), rev’d, 326 Conn. 81,
161 A.3d 1236 (2017), was misplaced. Although the trial court in O’Brien
denied the defendant’s motion for contempt because the plaintiff acted on
counsel’s advice when he violated certain automatic orders; see id., 583,
591; this court, on appeal, ‘‘[took] no position on whether a party may shield
himself or herself from a finding of wilful contempt by showing that he or
she relied on the advice of legal counsel.’’ Id., 591 n.15. Nor did our Supreme
Court address that specific issue. See O’Brien v. O’Brien, supra, 326 Conn.
85–86. Therefore, even if the plaintiff in the present case actually testified
that he relied on counsel’s advice, his motion for reconsideration failed
to present any controlling authority that the court overlooked. See, e.g.,
Chartouni v. DeJesus, supra, 107 Conn. App. 129.
9
The plaintiff also argues that ‘‘there are several problems with [the court’s
finding with respect to the defendant’s reasons for agreeing to the joint
motion to open and vacate].’’ Regarding the motion to open and vacate, the
defendant testified that she ‘‘agree[d] [to] whatever [the court] decide[s] is
in the best interest of us, and I respect your decision. That’s what I need
to add. That’s it.’’ The defendant did not file a brief in this appeal and,
therefore, does not challenge the denial of the joint motion to open and
vacate. The motion to open and vacate also relied on § 10 of the parties’
separation agreement, which states that they agreed to file the motion
because ‘‘they believe such findings could interfere with the parties’ future
employment.’’ Accordingly, we do not address the court’s finding with
respect to the defendant.
10
The plaintiff was not sworn in to testify and acknowledged that his
statements were ‘‘argument’’ in support of the motion to open and vacate.
11
We note that ‘‘[c]ivil contempt is designed to compel future compliance.
After a finding of civil contempt, the court retains the jurisdiction to vacate
the finding or to give the contemnor the opportunity to purge the contempt
by later compliance with a court order.’’ Monsam v. Dearington, 82 Conn.
App. 451, 456–57, 844 A.2d 927 (2004); see also Eric S. v. Tiffany S., 143
Conn. App. 1, 9, 68 A.3d 139 (2013). Although it could do so, a court is not
required, however, to vacate its judgment after a contemnor has purged
himself or herself of the contemptuous acts. In this case, the court identified
three violations of the court order: the improperly established joint bank
account, the $237,643.11 withdrawal, and the $70,219.99 withdrawal. Assum-
ing that the plaintiff corrected the first and third violations identified by
the court, there is no evidence in the record that he corrected the second
violation by returning the $237,643.11 to a properly constituted joint account.
Even if that violation is ignored, however, the plaintiff has not established
that the court abused its discretion in declining to vacate the contempt
judgment for the reasons it set forth in its December 7, 2015 and January
10, 2017 memoranda of decision, and its January 9, 2017 articulation.
12
We acknowledge the plaintiff’s arguments that the court’s denial of the
motion to open and vacate ‘‘conflicts with the public policy that encourages
parties to end their disputes by settling claims’’ and that ‘‘the court in a
dissolution case must reach a result that is equitable.’’ As general proposi-
tions, we agree that courts favor settlement in dissolution cases and that a
dissolution action is essentially equitable in nature. We are unpersuaded by
the plaintiff’s arguments, however, because the parties asked the court to
undo previous factual findings and the contempt judgment rendered as a
result of those findings, made after multiple days of hearings, and agreed
that not doing so was within the court’s discretion.