Chang v. Chang ( 2020 )

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MELISSA CHANG v. DAVID CHANG
(AC 42175)
Alvord, Prescott and Bright, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from certain postjudgment orders of the
trial court granting in part the plaintiff’s motions for contempt. The
plaintiff cross appealed to this court from certain postjudgment orders
of the trial court denying in part her motions for contempt and granting
the defendant’s motion for contempt. The motions for contempt were
all predicated on a postjudgment order of the court incorporating a
stipulation by the parties. In her motions for contempt, the plaintiff
alleged, inter alia, that the defendant had wilfully violated the parties’
stipulation when he was late in returning the parties’ minor son to her
house after school on four occasions and by refusing to work with the
guardian ad litem in mediation to resolve a parenting access schedule
issue. In his motion for contempt, the defendant alleged, inter alia, that
the plaintiff had wilfully violated an order of the court when she removed
the parties’ minor daughter from private physical therapy sessions,
which had been prescribed by the daughter’s physician. Held:
1. The trial court improperly granted the plaintiff’s motion for contempt
regarding the parties’ parenting access schedule: the language in the
stipulation underlying the motion, that the parties ‘‘shall work with the
guardian ad litem’’ to adjust the schedule, was not clear and unambigu-
ous, and the testimony of the guardian ad litem as to her interpretation
of the relevant language was extrinsic evidence, which could only be
considered when the order was found not to be clear and unambiguous
and, thus, could not support a finding of contempt, and the defendant’s
conduct in engaging in a forty-five minute telephone conversation with
the guardian ad litem constituted a reasonable interpretation of the
relevant language; moreover, the additional qualifying phrase ‘‘if neces-
sary’’ in the stipulation provision in question was ambiguous as it was
susceptible to more than one reasonable interpretation; furthermore, the
relevant section of the stipulation contained no clear and unambiguous
language that instructed the parties how to proceed when they disagreed
as to the necessity of adjusting the parenting access schedule.
2. The trial court properly denied the plaintiff’s motion for contempt regard-
ing the defendant’s actions in returning the parties’ minor son to her at
the end of the school day; the stipulation language in question, that ‘‘the
defendant shall be responsible for coordinating [their son’s] timely return
to the plaintiff’s care’’ after school was not clear and unambiguous, as
the parties did not specify an exact time the son must be returned to
the plaintiff, and, on each of the four days at issue in the motion for
contempt, the parties’ son stayed after school to meet with his teachers
and tutors or to practice the drums, which was a reasonable interpreta-
tion of the relevant stipulation language.
3. The trial court erred in granting the defendant’s motion for contempt
regarding physical therapy for the parties’ minor daughter, as its judg-
ment finding that the plaintiff wilfully failed to comply with a court
order that she engage in a good faith consultation with the defendant
prior to making a decision about the children’s health did not conform
to the defendant’s pleadings; in his motion, the defendant alleged that
the plaintiff had wilfully failed to comply with a court order when she
unreasonably withheld her consent for timely medical treatment for
their daughter, failed to insure their daughter’s medical needs were
timely and appropriately met and failed to place their daughter’s needs
and interests above the plaintiff’s personal preferences, thus, the basis
on which the court found the plaintiff in contempt was not one of the
bases pleaded by the defendant in his motion for contempt, and the
defendant’s contention that the court’s order requiring good faith consul-
tation and prohibiting the unreasonable withholding of consent must
be read together was unavailing, as those obligations are two separate
components of the court’s order.
Argued January 16—officially released June 2, 2020
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 defendant filed a
cross complaint; thereafter, the case was tried to the
court, Pinkus, J.; judgment dissolving the marriage and
granting certain other relief; subsequently, the court,
Hon. Stanley Novack, judge trial referee, issued an
order in accordance with the parties’ stipulation; there-
after, the court, Sommer, J., granted in part the plain-
tiff’s motions for contempt and granted the defendant’s
motion for contempt, and the defendant appealed and
the plaintiff cross appealed to this court. Reversed in
part; further proceedings.
Reuben S. Midler, for the appellant-cross appellee
(defendant).
Yakov Pyetranker, for the appellee-cross appellant
(plaintiff).
Opinion
ALVORD, J. In this postdissolution matter, the defen-
dant, David Chang, appeals and the plaintiff, Melissa
Chang, cross appeals from the judgment of the trial
court resolving their postjudgment motions for con-
tempt. On appeal, the defendant claims that the court
improperly granted the plaintiff’s October 25, 2017
motion for contempt regarding her proposed adjust-
ment to the parties’ parenting access schedule. On cross
appeal, the plaintiff claims that the court improperly
(1) denied her November 15, 2017 motion for contempt
regarding the timely return of the parties’ minor son to
her by the defendant after school and (2) granted the
defendant’s November 19, 2017 motion for contempt
regarding withheld consent by the plaintiff to procure
private physical therapy for the parties’ minor daugh-
ter.1 We agree with the defendant. We also agree with
the plaintiff as to her second claim, but disagree with
her first claim. Accordingly, we affirm in part and
reverse in part the judgment of the court.
The following undisputed facts and procedural his-
tory are relevant to this appeal and cross appeal. On
June 15, 2015, the court, Pinkus, J., dissolved the par-
ties’ eleven year marriage and imposed orders, some
of which concerned their two minor children, a son
and a daughter. See Chang v. Chang, 170 Conn. App.
822, 823, 155 A.3d 1272, cert. denied, 325 Conn. 910,
158 A.3d 321 (2017). Following the dissolution of their
marriage, the parties each filed several postjudgment
motions. In order to resolve the issues underlying some
of their several postjudgment motions, the parties
entered into a multiparagraph stipulation on August 31,
2017 (August 31, 2017 stipulation), which the court,
Hon. Stanley Novack, judge trial referee, approved and
entered as an order of the court on the same day. The
August 31, 2017 stipulation and one of the orders from
Judge Pinkus’ June 15, 2015 memorandum of decision
underlie the parties’ postjudgment motions for con-
tempt, which were ruled on by the court, Sommer, J.,
in a September 13, 2018 memorandum of decision. The
defendant appeals and the plaintiff cross appeals from
the September 13, 2018 ruling. Additional facts will be
set forth as necessary.
We set forth the standard of review and relevant legal
principles at the outset because they guide our analysis
of the claims made in the appeal and cross appeal.
‘‘[O]ur analysis of a judgment of contempt consists of
two levels of inquiry. First, we must resolve the thresh-
old question of whether the underlying order consti-
tuted a court order that was sufficiently clear and unam-
biguous 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 sufficiently 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 determina-
tion of whether the violation was wilful or excused by
a good faith dispute or misunderstanding. . . .
‘‘Civil contempt is committed when a person violates
an order of court which requires that person in specific
and definite language to do or refrain from doing an
act or series of acts. . . . Whether an order is suffi-
ciently clear and unambiguous is a necessary prerequi-
site for a finding of contempt because [t]he 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 fail-
ure to read the court’s mind. . . . It is also logically
sound that a person must not be found in contempt of a
court order when ambiguity either renders compliance
with the order impossible, because it is not clear enough
to put a reasonable person on notice of what is required
for compliance, or makes the order susceptible to a
court’s arbitrary interpretation of whether a party is in
compliance with the order.’’ (Citation omitted; internal
quotation marks omitted.) Bolat v. Bolat, 191 Conn.
App. 293, 297–98, 215 A.3d 736, cert. denied, 333 Conn.
918, 217 A.3d 634 (2019).
‘‘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. . . . The clear and con-
vincing evidence standard of proof applies to civil con-
tempt proceedings . . . .’’ (Citation omitted; internal
quotation marks omitted.) Hall v. Hall, 182 Conn. App.
736, 747, 191 A.3d 182, aff’d, Conn. , A.3d
(2020).
‘‘It is . . . necessary, in reviewing the propriety of
the court’s decision to [grant or] deny the motion for
contempt, that we review the factual findings of the
court that led to its determination. The clearly errone-
ous standard isthe well settled standard for reviewing
a trial court’s factual findings. A factual finding is clearly
erroneous when it is not supported by any evidence in
the record or when there is evidence to support it, but
the reviewing court is left with the definite and firm
conviction that a mistake has been made.’’ (Internal
quotation marks omitted.) Auerbach v. Auerbach, 113
Conn. App. 318, 326–27, 966 A.2d 292, cert. denied, 292
Conn. 901, 971 A.2d 40 (2009).
‘‘In domestic relations cases, [a] judgment rendered
in accordance with . . . a stipulation of the parties is
to be regarded and construed as a contract. . . . It is
well established that [a] contract must be construed to
effectuate the intent of the parties, which is determined
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected with the transaction. . . . [T]he intent of the
parties is to be ascertained by a fair and reasonable
construction of the written words and . . . the lan-
guage used must be accorded its common, natural, and
ordinary meaning and usage where it can be sensibly
applied to the subject matter of the contract. . . .
Where the language of the contract is clear and unam-
biguous, the contract is to be given effect according
to its terms. A court will not torture words to import
ambiguity where the ordinary meaning leaves no room
for ambiguity . . . . Similarly, any ambiguity in a con-
tract must emanate from the language used in the con-
tract rather than from one party’s subjective perception
of the terms. . . . Contract language is unambiguous
when it has a definite and precise meaning . . . con-
cerning which there is no reasonable basis for a differ-
ence of opinion . . . . In contrast, an agreement is
ambiguous when its language is reasonably susceptible
of more than one interpretation. . . . Nevertheless, the
mere fact that the parties advance different interpreta-
tions of the language in question does not necessitate
a conclusion that the language is ambiguous.’’ (Internal
quotation marks omitted.) Bolat v. Bolat, supra, 191
Conn. App. 298.
I
On appeal, the defendant claims that the court
improperly granted the plaintiff’s parenting access
schedule adjustment motion for contempt because the
relevant language of the August 31, 2017 stipulation
underlying that motion is not sufficiently clear and
unambiguous. We agree.2
The following additional facts, found by the court,
and procedural history are relevant to this claim. In
paragraph 3 of the August 31, 2017 stipulation (para-
graph 3), the parties agreed that they ‘‘shall work with
the guardian ad litem to adjust the parenting access
schedule, if necessary, to accommodate the academic
calendars of the children, the holiday and vacation
schedules and to establish synchronicity between the
parties’ minor children and the members of the plain-
tiff’s household.’’ Immediately following Judge
Novack’s adoption of the August 31, 2017 stipulation
as an order, during September and October, 2017, the
plaintiff sought to adjust the parenting access schedule.
Specifically, the plaintiff sought to have the defendant
exchange with her the weekends that he was scheduled
to spend parenting time with their children. The plaintiff
sought this adjustment of the parenting access schedule
so that she would have parenting time at the same time
that her boyfriend had his parenting time with his son
from a prior marriage. The parties agreed to mediate
the issue with the assistance of the guardian ad litem,
Attorney Bonnie Amendola, who scheduled a meeting
between the parties for October 26, 2017 (October meet-
ing). Prior to the October meeting, Amendola contacted
the defendant by telephone. During their telephone con-
versation, the defendant expressed to Amendola that he
did not believe it was necessary to adjust the parenting
access schedule because the son of the plaintiff’s boy-
friend was not a member of the plaintiff’s household.
He further told Amendola that such a change was not
necessary to the best interests of his children. Finally,
he expressed his concern that the plaintiff’s new boy-
friend presented a safety risk for the parties’ daughter.
For these reasons, the defendant did not want to partici-
pate in the October meeting and would not agree to
swap weekends with the plaintiff. On October 19, 2017,
Amendola notified the plaintiff that the defendant ‘‘was
unwilling to meet to resolve the ‘swap’ issue’’ and that
she was cancelling the mediation.
On October 25, 2017, the plaintiff filed her motion
for contempt alleging that the ‘‘defendant was unwilling
to engage in mediation to resolve the ‘swap’ issue and
[that Amendola] therefore cancelled the [October]
meeting.’’ The plaintiff further alleged that ‘‘[t]he defen-
dant’s conduct [was] wilful.’’ In its September 13, 2018
memorandum of decision, the court found that the ‘‘lan-
guage of paragraph 3 [of the August 31, 2017 stipula-
tion], clearly and unambiguously states [that] the par-
ties shall work with the guardian ad litem.’’ The court
was dismissive of the defendant’s suggestion that the
language in paragraph 3 was susceptible to multiple
reasonable interpretations, stating that ‘‘merely positing
questions does not create ambiguity where the funda-
mental language of the [August 31, 2017] stipulation is
clear.’’ The court further found that ‘‘[t]he defendant’s
own testimony as confirmed by the testimony of
[Amendola] . . . supports the finding that the reason
the meeting did not proceed was that he refused to
comply with a clear and unambiguous court order and
that his refusal was wilful.’’ Thus, the court ‘‘con-
clude[d] that the plaintiff . . . satisfied her burden of
proof on [the parenting access schedule adjustment
motion for contempt].’’
Applying the previously set forth legal principles to
paragraph 3 of the August 31, 2017 stipulation, we con-
clude that the language contained therein is not clear
and unambiguous. See Bolat v. Bolat, supra, 191 Conn.
App. 297 (analysis of court order is ‘‘legal inquiry subject
to de novo review’’ (internal quotation marks omitted)).
In analyzing whether paragraph 3 is clear and unambigu-
ous, the court failed to discuss the language ‘‘work
with the guardian ad litem’’ and, thus, overlooked its
potential ambiguity. Although the court did not assess
the clarity of the language ‘‘work with the guardian ad
litem,’’ it seemingly agreed with Amendola’s interpreta-
tion of that language because it found that the defendant
did not ‘‘work with’’ her on the basis of his refusal to
participate in the October meeting.3 Amendola testified
that her interpretation of ‘‘work with the guardian ad
litem’’ required the parties to meet or to mediate with
her. The plaintiff, by contacting Amendola to initiate the
October meeting and by filing her motion for contempt
after the defendant refused to participate in the October
meeting, appears to have endorsed Amendola’s inter-
pretation of the language ‘‘work with the guardian ad
litem.’’
The defendant’s conduct, however, evinced an inter-
pretation of the phrase ‘‘work with the guardian ad
litem’’ that did not require him either to meet or to
mediate in order to satisfy his obligation under para-
graph 3 but, rather, permitted him to conduct a lengthy
telephone conversation with Amendola in which he
expressed his position on the plaintiff’s proposed
adjustment to the parenting access schedule. That the
defendant conducted such a substantive telephone con-
versation is supported by the uncontroverted testimony
of Amendola and the defendant. Their testimony was
that the defendant, in the course of a forty-five minute
conversation with Amendola, explained the reasons
why he did not want to change the parenting access
schedule or even discuss it further at the October meet-
ing, namely, the son of the plaintiff’s boyfriend was not
a member of the plaintiff’s household, a change to the
parenting access schedule was not in his children’s
best interests, and he was concerned that the plaintiff’s
boyfriend presented a safety risk to the parties’
daughter.
Paragraph 3 does not provide the parties with any
discernible guidance as to what constitutes ‘‘work[ing]
with the guardian ad litem.’’ Nevertheless, we conclude
that a reasonable interpretation of paragraph 3 is that
the defendant’s telephone conversation with Amendola
constituted ‘‘work[ing] with the guardian ad litem.’’
Stated differently, the defendant’s lengthy telephone
conversation with Amendola, in which he stated his
reasons for not wanting to adjust the parenting access
schedule, could reasonably be interpreted as ‘‘work[ing]
with the guardian ad litem’’ because of the imprecision
in the language used in paragraph 3. Because the lan-
guage ‘‘work with the guardian ad litem’’ is susceptible
to multiple reasonable interpretations, we conclude
that paragraph 3 is ambiguous. See Bolat v. Bolat, supra,
191 Conn. App. 298 (‘‘an agreement is ambiguous when
its language is reasonably susceptible of more than one
interpretation’’ (internal quotation marks omitted)).4
Additional ambiguity is present in paragraph 3 with
the use of the phrase ‘‘if necessary,’’ which conditions
the parties’ obligation to take action under paragraph
3. First, the term ‘‘necessary’’ is susceptible to more than
one reasonable interpretation. See Auto Glass Express,
Inc. v. Hanover Ins. Co., 293 Conn. 218, 232–33, 975
A.2d 1266 (2009) (Our Supreme Court concluded that
the phrase ‘‘amount necessary’’ is ambiguous because
‘‘Webster’s Third New International Dictionary defines
the term ‘necessary’ as ‘[something] that cannot be done
without: that must be done or had: absolutely required:
essential, indispensable. . . .’ Black’s Law Dictionary
(6th Ed. 1990), however, notes that the term ‘[n]eces-
sary’ also ‘may import that which is only convenient,
useful, appropriate, suitable, proper, or conducive to
the end sought.’ ’’). Because the term ‘‘necessary’’ rea-
sonably can be interpreted in more than one way, para-
graph 3 is not clear and unambiguous.
Moreover, paragraph 3 fails to instruct the parties
how to proceed when they disagree as to whether it is
necessary to adjust the parenting access schedule, and
cannot be construed to require a party to accept an
adjustment proposed by the other party. Said another
way, there is no clear and unambiguous language in
paragraph 3 that obligated the defendant to accept the
plaintiff’s proposed adjustment to the parenting access
schedule even if he were to ‘‘work with the guardian
ad litem’’ in the way that the plaintiff interprets that
language.5
In light of the foregoing, we conclude that the court
improperly granted the plaintiff’s parenting access
schedule adjustment motion for contempt.
II
In her cross appeal, the plaintiff claims that the court
improperly denied her child return motion for con-
tempt. We disagree.
The following additional facts, found by the court,
and procedural history are relevant to the plaintiff’s
claim. In paragraph 4 of the August 31, 2017 stipulation
(paragraph 4), the parties agreed to the following rele-
vant language: ‘‘The plaintiff shall be responsible for
coordinating [their son’s] transportation from her resi-
dence to [private school] at the defendant’s reasonable
cost and the defendant shall be responsible for coordi-
nating [their son’s] timely return to the plaintiff’s care
at his sole expense.’’ On November 15, 2017, the plaintiff
filed a motion for contempt alleging that, on four days,
the defendant failed to timely return their son to her
home after his dismissal from his private school. Specif-
ically, the plaintiff alleged that on September 20 and
29, and October 13, 2017, their son was dismissed from
his private school at 2:40 p.m., picked up by the defen-
dant between 4:15 and 4:28 p.m., and dropped off at the
plaintiff’s home at, around, or after 5 p.m. The plaintiff
further alleged that on October 19, 2017, their son was
dismissed from his private school at 4 p.m. and dropped
off by the defendant at the plaintiff’s home at 5:30 p.m.
The plaintiff alleged that the defendant’s conduct was
in violation of the August 31, 2017 stipulation and
was wilful.
In its September 13, 2018 memorandum of decision,
the court found that on each of the four days at issue
in the child return motion for contempt, the parties’
son stayed after school to meet with his teachers and
tutors or to practice the drums, and neither he nor
the defendant informed the plaintiff. The court further
found that the parties’ son stayed after school because
‘‘[s]tudents benefit from tutoring or other general aca-
demic enrichment as a result of after school access to
teachers.’’ The court determined that ‘‘[t]he scheduling
matters of which the plaintiff complains are not exam-
ples of wilful violation[s] of clear and unambiguous
court orders by the defendant, but lapses in communica-
tion between [the parties].’’ The court determined that
‘‘[t]he plain language of [paragraph 4] does not require
the defendant to return [their son] by a specific time
as [the] plaintiff argue[d].’’ Accordingly, the court con-
cluded that ‘‘there is no basis for a finding of contempt
under the facts presented.’’
We conclude that paragraph 4 is not clear and unam-
biguous. See Bolat v. Bolat, supra, 191 Conn. App. 297
(analysis of court order is ‘‘legal inquiry subject to de
novo review’’ (internal quotation marks omitted)). Para-
graph 4 states that ‘‘the defendant shall be responsible
for coordinating [their son’s] timely return to the plain-
tiff’s care at his sole expense.’’ Paragraph 4 does not
specify that the defendant must return their son to the
plaintiff immediately after students are dismissed from
their classes at the private school. As a result, paragraph
4 is reasonably susceptible to an interpretation that the
parties’ son must be timely picked up by the defendant
and driven to the plaintiff after he completes the aca-
demic and enrichment extracurricular activities that he
is engaged in at his private school.6 See Bolat v. Bolat,
supra, 298 (‘‘an agreement is ambiguous when its lan-
guage is reasonably susceptible of more than one inter-
pretation’’ (internal quotation marks omitted)). Had the
parties wanted more precision as to what time their
son must be returned by the defendant to the plaintiff,
they could have specified an exact time in paragraph
4.7 The parties did not. In light of that failure, we con-
clude that paragraph 4 is not clear and unambiguous
as to when their son must be returned by the defendant
to the plaintiff after getting picked up at his private
school.8 Accordingly, the court properly denied the
plaintiff’s child return motion for contempt.
III
The plaintiff next claims that the court improperly
granted the defendant’s physical therapy motion for
contempt because the basis on which the court found
the plaintiff in contempt differed from those pleaded
by the defendant. We agree.
The following additional facts, found by the court,
and procedural history are relevant to this claim. In his
June 15, 2015 memorandum of decision, Judge Pinkus
ordered, in relevant part, the following: ‘‘The parties
shall have joint legal custody of the minor children.
The plaintiff shall have final decision-making authority
regarding the minor children after good faith consulta-
tion with the defendant. Such custody designation con-
fers upon both parents the obligation to consult and
discuss with each other regarding major decisions
affecting the minor children’s best interests, including,
but not limited to matters of academic education, reli-
gious training, health and general welfare of the chil-
dren. Neither parent will unreasonably withhold con-
sent to matters affecting the children but shall endeavor
to make decisions in such a way as the children’s needs
are timely and appropriately met, despite a parent’s
particular personal preference in relation to the other
parent, and both the parents shall place the children’s
needs and interests above such individual and personal
preferences.’’ The parties’ daughter has been diagnosed
with ‘‘arthrogryposis, a neuromuscular condition which
inhibits her ability to use her upper limbs. This condi-
tion is marked by contracture of her elbow, wrist and
finger joints.’’ The parties’ daughter received private
physical therapy with Ginette Courtney from ages two
to six. Since the summer of 2017, when the plaintiff
terminated their daughter’s engagement in private phys-
ical therapy, the parties have disagreed over whether
their daughter should continue to receive private physi-
cal therapy. Their daughter receives physical therapy
at her elementary school, which is more limited than
the private physical therapy she had received pre-
viously. The plaintiff believes that their daughter does
not require private physical therapy because she
engages in sports activities. On October 16, 2017, the
daughter’s treating physician wrote her the following
prescription: ‘‘Physical therapy: eval & treat w/ attention
to hamstring stretches & quad strengthening, ankle dor-
siflexion strength b/l achilles stretching on right.’’
On November 19, 2017, the defendant filed the physi-
cal therapy motion for contempt. Therein, the defendant
alleged that he had proposed that their daughter have
her prescription filled by ‘‘work[ing] on a weekly basis
with . . . Courtney.’’ The defendant further alleged
that the plaintiff ‘‘[had] refused to allow [their daughter]
to treat with . . . Courtney and [had] failed to discuss
with [him] or identify any other private physical thera-
pist to fulfill the requirements of [their daughter’s] pre-
scription.’’ Instead, the defendant alleged, the ‘‘plaintiff
[had] opted to have [their daughter] continue to visit
the physical therapist at the . . . public school which
she now attends,’’ which the defendant asserted was
‘‘inadequate to satisfy [their daughter’s] prescription.’’
As a result, the defendant alleged, their daughter has
not been treated ‘‘[d]espite more than one month having
elapsed since the parties received the prescription.’’
Accordingly, the defendant alleged that the plaintiff had
‘‘unreasonably withheld her consent for timely medical
treatment for [their daughter],’’ ‘‘failed to insure that
[their daughter’s] medical needs are timely and appro-
priately met,’’ and ‘‘failed to place [their daughter’s]
needs and interests above her personal preferences,’’
all in violation of Judge Pinkus’ order. The defendant
further alleged that ‘‘[t]he plaintiff’s conduct [was]
wilful.’’
In its September 13, 2018 memorandum of decision,
the court construed the physical therapy motion for
contempt as alleging ‘‘that the plaintiff [was] in wilful
violation of court orders as a result of her refusal to
continue private physical and occupational therapy for
the parties’ . . . daughter . . . .’’ The court ‘‘[found]
by clear and convincing evidence [that] the plaintiff
[had] wilfully failed to comply with the clear and unam-
biguous court order that she engage in a good faith
consultation with the defendant prior to making a deci-
sion about the children’s health.’’ The court thus ‘‘con-
clude[d] that the defendant [had] satisfied his burden
of proof based on the clear and convincing evidence
of the plaintiff’s failure to engage in good faith consulta-
tion with the defendant about proper medical care for
their child.’’ Accordingly, the court granted the defen-
dant’s physical therapy motion for contempt.
The following legal principles are relevant to the
plaintiff’s claim. ‘‘Any determination regarding the
scope of a court’s subject matter jurisdiction or its
authority to act presents a question of law over which
our review is plenary. . . . Generally, it is clear that
[t]he court is not permitted to decide issues outside of
those raised in the pleadings. . . . When reviewing the
court’s decisions regarding the interpretation of plead-
ings, [t]he [motion] must be read in its entirety in such
a way as to give effect to the pleading with reference
to the general theory upon which it proceeded, and do
substantial justice between the parties. . . . Our read-
ing of pleadings in a manner that advances substantial
justice means that a pleading must be construed reason-
ably, to contain all that it fairly means, but carries with
it the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension. . . .
‘‘Pleadings have an essential purpose in the judicial
process. . . . For, instance, [t]he purpose of the
[motion] is to put the defendants on notice of the claims
made, to limit the issues to be decided, and to prevent
surprise. . . . [T]he concept of notice concerns
notions of fundamental fairness, affording parties the
opportunity to be apprised when their interests are
implicated in a given matter. . . . Whether a [motion]
gives sufficient notice is determined in each case with
reference to the character of the wrong complained of
and the underlying purpose of the rule which is to
prevent surprise upon the defendant. . . .
‘‘[I]t is imperative that the court and opposing counsel
be able to rely on the statement of issues as set forth
in the pleadings. . . . [A]ny judgment should conform
to the pleadings, the issues and the prayers for relief.
. . . [A] plaintiff may not allege one cause of action
and recover upon another. . . . The requirement that
claims be raised timely and distinctly . . . recognizes
that counsel should not have the opportunity to surprise
an opponent by interjecting a claim when opposing
counsel is no longer in a position to present evidence
against such a claim.’’ (Citations omitted; internal quota-
tion marks omitted.) Lynn v. Bosco, 182 Conn. App.
200, 213–15, 189 A.3d 601 (2018).
With respect to the physical therapy motion for con-
tempt, the court found the plaintiff in contempt for her
‘‘failure to engage in good faith consultation with the
defendant about proper medical care for their child.’’
The basis on which the court found the plaintiff in
contempt was not one of the bases pleaded by the
defendant in the physical therapy motion for contempt.
The defendant alleged that the plaintiff ‘‘unreasonably
withheld her consent for timely medical treatment for
[their daughter],’’ ‘‘failed to insure that [their daughter’s]
medical needs are timely and appropriately met,’’ and
‘‘failed to place [their daughter’s] needs and interests
above her personal preferences.’’ The defendant’s alle-
gations are that the plaintiff violated specific obligations
within Judge Pinkus’ order. These obligations are sepa-
rate and distinct from the obligation that the court cited
as its basis for finding the plaintiff in contempt.
The defendant argues that ‘‘any unbiased reading of
the language set forth in paragraph [2 of his physical
therapy motion for contempt] would reveal that the
order which the plaintiff was alleged to have violated
contains reference to the requirements of a ‘good faith
consultation prior to the plaintiff exercising final deci-
sion making authority’; and, the requirement that ‘nei-
ther parent will unreasonabl[y] withhold consent to
matters affecting the children . . . .’ Any reasonable
construction of the original order of Judge Pinkus
requires that those provisions be read together in a
consistent whole as they are limitations on the exercise
of ‘final decision-making authority.’ ’’
The defendant is correct that quoted within para-
graph 2 of his physical therapy motion for contempt is
the part of Judge Pinkus’ order that pertains to ‘‘good
faith consultation.’’ The defendant did not allege, how-
ever, that the plaintiff violated the ‘‘good faith consulta-
tion’’ requirement of Judge Pinkus’ order, thereby
impermissibly depriving the plaintiff of fair notice that
the issue of ‘‘good faith consultation’’ would be before
the court in the defendant’s physical therapy motion for
contempt. See Lynn v. Bosco, supra, 182 Conn. App. 214.
Moreover, we do not agree with the defendant’s con-
tention that the requirement of ‘‘good faith consulta-
tion’’ and the prohibition against unreasonably with-
holding consent must be read together. Although both
obligations are related to decision-making for the par-
ties’ children, they are unique obligations within the
decision-making process. Thus, the obligation to con-
sult in good faith could be violated without triggering a
violation of the obligation to not unreasonably withhold
consent, and vice versa.
Because the requirement of good faith consultation
and the prohibition against unreasonably withholding
consent are two separate components of Judge Pinkus’
order, in order for the plaintiff to have been found in
contempt for her failure to consult in good faith regard-
ing their daughter’s physical therapy needs, the defen-
dant was required to have pleaded such. There was no
allegation in the defendant’s physical therapy motion
for contempt that the plaintiff refused to consult in good
faith with the defendant concerning their daughter’s
physical therapy. As such, the court’s judgment does
not conform to the pleadings. See id. (‘‘[a]ny judgment
should conform to the pleadings, the issues and the
prayers for relief’’ (internal quotation marks omitted)).
Therefore, it must be reversed.9
The judgment is affirmed only as to the denial of
the plaintiff’s child return motion for contempt; the
judgment is reversed as to the granting of the plaintiff’s
parenting access schedule adjustment motion for con-
tempt and the defendant’s physical therapy motion
for contempt.
In this opinion the other judges concurred.
1
Collectively, over a five week period, the parties had filed five postjudg-
ment motions for contempt, three of which are at issue in this appeal.
2
In light of our conclusion that the relevant language of the August 31, 2017
stipulation underlying the plaintiff’s parenting access schedule adjustment
motion for contempt is not clear and unambiguous, we do not consider
whether the defendant’s conduct was wilful. See Puff v. Puff, 334 Conn.
341, 365, 222 A.3d 493 (2020) (‘‘[i]t is the burden of the party seeking an
order of contempt to prove . . . both a clear and unambiguous directive
to the alleged contemnor and the alleged contemnor’s wilful noncompliance
with that directive’’ (emphasis added)).
3
In a portion of its analysis discussing the meaning of the term ‘‘synchron-
icity,’’ as it is used in paragraph 3, the court stated that it ‘‘accepts and
adopts the definition and interpretation of paragraph 3 of the [August 31,
2017] stipulation according to the testimony of [Amendola].’’ A clear and
unambiguous order is a necessary predicate to holding a party in contempt.
See Bolat v. Bolat, supra, 191 Conn. App. 297. Witness testimony as to his
or her interpretation of language in an order is extrinsic evidence, which
should only be considered when the order is found not to be clear and
unambiguous and, thus, cannot support a finding of contempt. See Parisi
v. Parisi, 315 Conn. 370, 384–86, 107 A.3d 920 (2015) (remanding case
‘‘to resolve the ambiguity in the parties’ separation agreement through a
determination of their intent after consideration of all available extrinsic
evidence and the circumstances surrounding the entering of the agreement’’
after concluding ‘‘that the alimony buyout provision of the parties’ separation
agreement is ambiguous, thereby precluding a finding of contempt’’).
The court’s statement ‘‘accepting and adopting’’ Amendola’s interpretation
indicates that it may have improperly applied the well established principles
of contract interpretation to assess whether paragraph 3 was clear and
unambiguous. The plaintiff argues that ‘‘[j]ust because the court referred
to an interpretation that accorded with its own, it does not necessarily
follow that the court failed to reach independently the legal conclusion as
to whether paragraph 3 was clear and unambiguous.’’ Because we conclude
that the court erroneously determined that paragraph 3 was clear and unam-
biguous, we need not decide whether it improperly relied upon extrinsic
evidence to reach its determination.
4
In the section of her brief that discusses the defendant’s wilfulness, the
plaintiff argues that ‘‘[i]f the defendant truly harbored a different interpreta-
tion of his obligation to engage with the guardian [ad litem] at the proposed
meeting . . . then the basis for his refusal to engage further was nothing
but a form of self-help. If anything, given that the defendant at no time
obtained, much less sought, a clarification or modification of paragraph 3,
it would have been error for the court not to find him in contempt.’’ (Empha-
sis in original; footnote omitted.) To the extent that the plaintiff argues on
appeal that the court’s finding of the defendant in contempt should be upheld
despite an unclear and ambiguous order; see Sablosky v. Sablosky, 258 Conn.
713, 720, 784 A.2d 890 (2001) (‘‘we conclude that where there is an ambiguous
term in a judgment, a party must seek a clarification upon motion rather
than resort to self-help’’); we disagree.
This case in no way presents facts warranting a finding of contempt
against the defendant because he exercised self-help when faced with an
unclear and ambiguous order. We emphasize that the defendant did not
exercise self-help but, rather, attempted to comply with the requirement in
paragraph 3 that he ‘‘work with the guardian ad litem’’ by speaking with
Amendola on the telephone and stating his reasons for his opposition to
the plaintiff’s proposed adjustment to the parenting access schedule. See
In re Leah S., 284 Conn. 685, 700, 935 A.2d 1021 (2007) (concluding that
because trial court order was ‘‘ambiguous at the outset, and therefore con-
ferred broad discretion’’ on party, party, ‘‘far from employing self-help tactics
. . . instead employed the broad discretion conferred upon it by the court’’).
5
We acknowledge that the plaintiff alleged that the defendant acted con-
temptuously by failing to ‘‘work with the guardian ad litem,’’ and she did
not allege that he contemptuously disagreed with her proposed adjustment
to the parenting access schedule. Nevertheless, the relief she sought was
an implementation of the adjustment she desired. In the parenting access
schedule adjustment motion for contempt the plaintiff requested, inter alia,
that the court ‘‘order the defendant to immediately engage in mediation
regarding the . . . ‘swaps’ with [her] and the guardian ad litem, and if the
parties are unsuccessful in resolving [the] issue after two . . . mediation
sessions, the guardian ad litem shall make a binding recommendation until
further agreement by the parties or order by the court . . . .’’ The plaintiff
further sought an ‘‘order that until further agreement by the parties or
recommendation by the guardian ad litem, the weekend ‘swaps’ be instituted
immediately in accordance with the schedules of the members of [her]
household . . . .’’ If the plaintiff believed that an adjustment to the recently
established parenting access schedule was necessary, a motion for modifica-
tion of visitation under Practice Book § 25-26 would have been a more direct
and effective approach to receiving impartial consideration of the adjustment
she sought.
As an initial matter, the plaintiff has not provided us with any legal support
for her position that the guardian ad litem, under the facts of this case, was
authorized to make a binding recommendation on a child custody and
visitation matter. Furthermore, had the plaintiff moved to modify the parent-
ing access schedule, instead of filing a motion for contempt against the
defendant, she might have received appropriate consideration and relief
more expeditiously. The fact that the plaintiff filed the parenting access
schedule adjustment motion for contempt less than two months after the
parties entered into the global August 31, 2017 stipulation further informs
our conclusion that filing a motion for contempt was imprudent. When the
parties cannot agree on a decision impacting the parenting of their children,
they should turn to the court to resolve their impasse in a manner that does
not seek to punish the other party, unless it truly is warranted. See Sablosky
v. Sablosky, supra, 258 Conn. 722 (‘‘[t]he doors of the courthouse are always
open; it is incumbent upon the parties to seek judicial resolution of any
ambiguity in the language of judgments’’).
6
The plaintiff argues that there was no evidence to support the court’s
findings that ‘‘[s]tudents benefit from tutoring or other general academic
enrichment as a result of after school access to teachers’’ and that ‘‘[their
son] chose to stay after school for reasons that are important to a child’s
education.’’ We conclude that there was evidence to support both of
these findings.
With respect to the second finding, the defendant’s uncontested testimony
was that on three of the four days at issue in the child return motion for
contempt their son stayed after school to meet with his teachers, to complete
his homework, and to practice on a percussion set available at his private
school because there was not a set at his home. On one of the four days,
the defendant was late due to a ‘‘client meeting.’’ On that one day, the court
reasonably could have concluded that the defendant did not act wilfully.
See Hall v. Hall, supra, 182 Conn. App. 747 (‘‘[F]ailure to comply with an
order, alone, will not support a finding of contempt. . . . Rather, to consti-
tute contempt, a party’s conduct must be wilful.’’ (Internal quotation
marks omitted.)).
7
The court stated that specifying an exact time by which the parties’ son
must be returned to the plaintiff ‘‘would be [an] impractical, if not impossi-
ble’’ obligation for the defendant to satisfy. The plaintiff homes in on this
language arguing that ‘‘[t]he court effectively determined that no order, be
it crystal clear or utterly amorphous, can provide a sufficient basis for a
violation in this particular case—none but one: whatever [the parties’ son]
may decide enriches his education.’’ It is not our function to offer an opinion
as to the parties’ capabilities to abide by paragraph 4 in parenting their son
were it to specify an exact time by which he is to be dropped off at the
plaintiff’s home by the defendant. Paragraph 4, in its current form, however,
is not clear and unambiguous and, thus, cannot support a finding of contempt
against the defendant.
8
Because we conclude that paragraph 4 is not clear and unambiguous,
we do not consider whether the defendant acted wilfully. See Puff v. Puff,
supra, 334 Conn. 365; footnote 2 of this opinion.
9
In addition, we note that we harbor the same concerns with regard to
the defendant’s motion for contempt that were articulated in footnote 5 of
this opinion.