Dicker v. Dicker , 189 Conn. App. 247 ( 2019 )


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    LORNA J. DICKER v. MICHAEL DICKER
    (AC 40644)
    DiPentima, C. J., and Sheldon and Pellegrino, 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
    denying the parties’ motions for contempt and issuing a remedial order
    regarding certain prior court-ordered payments. In her motion for con-
    tempt, the plaintiff claimed that the defendant had wilfully underpaid
    the fees he owed for their children’s extracurricular activities, and in
    his motion for contempt, the defendant claimed that the plaintiff failed
    to pay her share of the children’s unreimbursed medical expenses. There-
    after, the trial court held hearings on the motions for contempt and
    various other pending motions, during which it determined that neither
    party could be held in contempt because they both believed that pursuant
    to certain prior court orders they were entitled to withhold payment
    from each other when and to the extent that the other party had failed
    to make a required payment to the other. The court also issued a remedial
    order that set forth a detailed procedure that the defendant was required
    to follow in the future for presenting proof of unreimbursed medical
    expenses to the plaintiff and calculating any amounts that he claimed
    the plaintiff owed him under prior court orders. The trial court then
    held an evidentiary hearing to determine the amounts that the parties
    currently owed each other related to the subject fees and expenses and
    ordered the parties to submit proposed orders. Following the hearing,
    the court found that the defendant owed the plaintiff $3742.08 for unpaid
    extracurricular activities fees and the plaintiff owed the defendant
    $2303.59 for unpaid unreimbursed medical expenses, and, therefore, it
    ordered the defendant to pay the plaintiff $1438.49, which was the net
    difference between the unpaid sums. Thereafter, the trial court denied
    in part the plaintiff’s motion to reargue. On the plaintiff’s amended
    appeal to this court, held:
    1. The plaintiff could not prevail on her claim that the trial court erred in
    finding that she had violated its medical reimbursement order and in
    finding, on that basis, that she owed the defendant $2303.59 in unpaid
    unreimbursed medical expenses, as she failed to establish that the
    court’s findings were clearly erroneous: despite the plaintiff’s claim that
    the trial court erred in finding that the defendant’s accounting summaries
    as to the amounts he had paid for the children’s medical expenses were
    credible, the record revealed that the court credited the defendant’s
    testimony that he had, in fact, paid what he claimed to have paid for
    the children’s medical expenses and that his testimony explained why
    there were discrepancies between the summaries and the documentation
    he had presented to the court; moreover, contrary to the plaintiff’s
    assertions that the defendant’s medical expense summaries were unsub-
    stantiated and irreconcilable with the record, and that the court erred
    in its method of calculation of the amounts that the parties owed to
    each other, the court sought and received proposed orders from both
    parties, which included suggested methods of calculation and summaries
    of the expenses they wanted the court to consider, it heard lengthy
    testimony as to the amounts allegedly owed and it was well aware of
    the parties’ differing accounting approaches and methods of calculating
    those amounts, which it clearly indicated and discussed in its memoran-
    dum of decision.
    2. The trial court did not abuse its discretion in denying the plaintiff’s motion
    for contempt on the basis of its finding that the defendant was not in
    contempt for withholding from her payment of the amount he owed for
    the children’s extracurricular activities, as the plaintiff failed to advance
    any compelling argument as to why the court’s determination was not
    supported by the record, and this court was not left with the definite
    and firm conviction that a mistake had been made; although the plaintiff
    contended that because the defendant’s actions were knowing and volun-
    tary, they must have constituted wilful contempt, the court’s refusal to
    find the defendant in contempt was not predicated on a finding that the
    defendant’s actions were not knowing or voluntary but, rather, was
    based on its finding that the parties withheld payments from each other
    because of their common belief that it was proper to do so.
    3. The trial court did not abuse its discretion by permitting the defendant
    unilaterally to deduct the amount of undisputed unpaid unreimbursed
    medical expenses owed by the plaintiff from future payments that the
    defendant owed the plaintiff for the children’s extracurricular activities,
    as that court’s remedial order, when viewed in the context of the court’s
    prior orders and in light of the fact that the court was in the best position
    to give effect to those orders, was not manifestly unreasonable.
    4. The plaintiff could not prevail on her claim that the trial court abused
    its discretion in denying her motion to reargue, which was based on
    her claim that the court incorrectly concluded that she had ample oppor-
    tunity to submit any relevant evidence prior to the final hearing on the
    parties’ various motions but had chosen not to do so; despite the plain-
    tiff’s contention that the trial court, without explanation, denied her
    request to present additional new evidence during the subject hearing,
    the record was clear that the court provided the plaintiff with a sufficient
    explanation as to why it denied her motion for contempt, and a review
    of the hearing transcripts indicated that the parties’ counsel agreed in
    advance to prioritize certain issues before the court with respect to
    their various motions.
    5. The plaintiff could not prevail on her claim that the trial court violated
    her due process right to be heard when it denied her motion for contempt
    before she had rested her case-in-chief, which she claimed deprived her
    of a reasonable opportunity to cross-examine the defendant or to present
    evidence in support of that motion: the record revealed that the plaintiff
    had a sufficient opportunity to provide the trial court with evidence of
    the defendant’s contempt during the subject hearing and that at no point
    during the remainder of the hearing did she request to submit additional
    evidence, and although the plaintiff claimed that she was unable to bring
    certain relevant evidence to the court’s attention, nothing in the record
    suggested that, had she been allowed even greater latitude and more
    time, she would have presented evidence with respect to the wilfulness
    of the defendant’s actions that was not already before the court; more-
    over, although the plaintiff claimed that the trial court ignored evidence
    that the defendant knowingly made deductions from court-ordered pay-
    ments to her, which she claimed constituted acts of wilful contempt,
    noncompliance alone was not sufficient to support a judgment of con-
    tempt, as it was within the sound discretion of the court to deny her
    claim for contempt because there was an adequate factual basis to
    explain the defendant’s failure to honor the court’s prior orders.
    Argued December 6, 2018—officially released April 16, 2019
    Procedural History
    Action for the dissolution of a marriage, and for other
    relief, brought to the Superior Court in the judicial dis-
    trict of Middlesex and tried to the court, Abrams, J.;
    judgment dissolving the marriage and granting certain
    other relief in accordance with the parties’ separation
    agreement; thereafter, the court, Albis, J., denied the
    parties’ motions for contempt and issued a remedial
    order; subsequently, the court, Albis, J., issued an order
    regarding certain unreimbursed medical expenses;
    thereafter, the court, Albis, J., denied in part the plain-
    tiff’s motion to reargue, and the plaintiff appealed to
    this court; subsequently, the plaintiff filed an amended
    appeal. Affirmed.
    Lorna J. Dicker, self-represented, the appellant
    (plaintiff).
    Michael Dicker, self-represented, the appellee
    (defendant).
    Opinion
    PELLEGRINO, J. The plaintiff, Lorna J. Dicker,
    appeals from the judgment of the trial court, resolving
    several of the parties’ postjudgment motions. On appeal,
    the plaintiff claims that the court improperly (1) found
    that the plaintiff owed sums to the defendant, Michael
    Dicker, for unreimbursed medical expenses for the par-
    ties’ minor children, (2) found that the defendant was
    not in contempt of existing court orders, (3) concluded
    that the defendant could deduct unreimbursed medical
    costs from future quarterly activity fee payments that
    he owed to the plaintiff, and (4) denied the plaintiff’s
    motion to reargue. The plaintiff also claims that the
    court violated her due process right to be heard on her
    motion for contempt. For the reasons set forth in this
    opinion, we disagree with the plaintiff and affirm the
    judgment of the trial court.
    The record discloses the following facts and proce-
    dural history. On March 29, 2012, the trial court,
    Abrams, J., dissolved the parties’ marriage, incorporat-
    ing into its judgment of dissolution the parties’
    agreement dated February 17, 2012. The agreement pro-
    vided, inter alia, that the defendant would be responsi-
    ble for the first $3720 incurred for their children’s
    unreimbursed medical and dental expenses each year
    and that the parties would share equally in any such
    expenses that exceeded that amount.1 As for the chil-
    dren’s extracurricular activities, the agreement pro-
    vided that the plaintiff would pay for such activities
    up to the sum of $1200 per year and that the parties,
    thereafter, would share any expenses in excess of that
    amount equally.2
    Thereafter, the parties filed numerous motions for
    contempt against each other for alleged failures to com-
    ply with the terms of their agreement. In an effort to
    resolve their disputes, the parties entered into two addi-
    tional agreements. In an agreement dated May 27, 2014,
    the parties decided, inter alia, that they would reconcile,
    on a quarterly basis, their respective payments for the
    children’s unreimbursed medical expenses. In a second
    agreement dated August 18, 2014, the parties settled
    their dispute with respect to various prior unreimbursed
    medical expenses. Each of these agreements was
    approved by the court and made an order of the court.
    On June 9, 2016, the plaintiff filed a motion for con-
    tempt, claiming that the defendant had wilfully under-
    paid the fees he owed for the children’s extracurricular
    activities. See footnote 2 of this opinion. On September
    23, 2016, the defendant also filed a motion for contempt,
    claiming that the plaintiff had failed to pay her agreed
    upon share of the children’s unreimbursed medical
    expenses. The court, Albis, J., held hearings on Novem-
    ber 3 and 23, 2016, with respect to the parties’ motions.3
    On November 23, 2016, the court ruled that neither
    party could be held in contempt because each of them
    believed that he or she was entitled, under the court’s
    previous orders, to withhold payment from the other
    as a result and to the extent of the other party’s nonpay-
    ment of sums due to him or her.
    During that hearing, the court also issued a remedial
    order requiring, inter alia, that in the future the defen-
    dant provide the plaintiff with calculations sufficient
    to explain any amounts he claimed that she owed him
    under the previous orders. The order further provided
    that if the plaintiff disputed any amount so claimed and
    documented by the defendant, she was obligated to
    notify him of that dispute. The order finally provided
    that if any undisputed expense had not been paid to
    the defendant by the next due date, he could deduct
    that undisputed amount from a future installment of
    the children’s extracurricular activity expenses that he
    then owed to the plaintiff. Critically, if the plaintiff
    disputed any amount, so claimed and documented by
    the defendant, she was prohibited from deducting that
    amount from any future payments she then owed to
    him until the dispute was resolved by the parties them-
    selves or by the court. At the conclusion of that hearing,
    the court ordered the parties to attempt to reconcile
    the amounts they currently owed to one another, but
    also stated that a subsequent evidentiary hearing would
    be scheduled to determine those amounts if they were
    unable to reach an agreement.
    The parties could not reach an agreement regarding
    the amounts they owed one another for their children’s
    extracurricular activities and medical expenses, and,
    therefore, the court held an evidentiary hearing to
    resolve those issues on March 28, 2017. At that hearing,
    the court ordered the parties to submit proposed orders
    by April 12, 2017. On May 9, 2017, the court filed a
    written memorandum of decision in which it found that
    for the period from August 18, 2014 to November 23,
    2016, the defendant owed the plaintiff $3742.08 for
    extracurricular activity fees, while the plaintiff owed
    the defendant $2303.59 for unreimbursed medical
    expenses. As a result, the court ordered the defendant
    to pay the plaintiff $1438.49, the net difference between
    those unpaid sums.
    On June 7, 2017, the plaintiff filed a motion to reargue,
    asking the court to reconsider many of its findings and
    rulings on the parties’ motions for contempt, including
    its decision not to hold the defendant in contempt and
    its method of calculating the amounts the parties owed
    to one another for their children’s expenses. On June
    28, 2017, the court issued its memorandum of decision
    denying the plaintiff’s motion to reargue with respect
    to all issues except that of reimbursement for additional
    orthodontic expenses.4 This appeal followed. Additional
    facts and procedural history will be set forth as nec-
    essary.
    I
    The plaintiff first claims that the court erred in finding
    that she had violated its medical reimbursement order
    and in finding, on that basis, that she owed the defen-
    dant $2303.59. She further argues that the court erred
    in finding that the defendant’s accounting summaries,
    as to amounts he had paid for the children’s medical
    expenses, were credible. Specifically, the plaintiff
    argues that the numerical values listed by the defendant
    on his quarterly spreadsheets, which were submitted
    as evidence on the issue of unreimbursed medical
    expenses, were unsubstantiated by proper documenta-
    tion. We disagree.
    ‘‘At the outset, we note that the court’s factual deter-
    minations will not be overturned on appeal unless they
    are clearly erroneous. . . . As a reviewing court, we
    may not retry the case or pass on the credibility of
    witnesses. . . . Our review of factual determinations
    is limited to whether those findings are clearly errone-
    ous. . . . We must defer to the trier of fact’s assess-
    ment of the credibility of the witnesses that is made on
    the basis of its firsthand observation of their conduct,
    demeanor and attitude. . . . 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 conviction that a mis-
    take has been committed.’’ (Internal quotation marks
    omitted.) Chowdhury v. Masiat, 
    161 Conn. App. 314
    ,
    324, 
    128 A.3d 545
    (2015).
    During the evidentiary hearing on March 28, 2017,
    the court heard lengthy testimony as to the amounts
    allegedly owed by each party to the other. The defen-
    dant testified that he had incurred medical expenses
    for his children’s health care that had been paid directly
    either from his health savings account or by his insur-
    ance provider. He claimed that his health savings
    account, his insurance payment history and his spread-
    sheets summarizing his children’s medical expenses
    corroborated one another. The plaintiff, who appeared
    with counsel, was able to cross-examine the defendant
    at length as to his accounting methods. Moreover, the
    court questioned the defendant on multiple occasions
    with respect to his accounting summaries and the other
    evidence of payments he had presented to the court.
    Before issuing its memorandum of decision, the court
    sought and received proposed orders from each party,
    which included suggested methods of calculation and
    summaries of expenses they wanted to have consid-
    ered. In its revised memorandum of decision, the court
    addressed the discrepancies between the plaintiff’s and
    the defendant’s calculations, noting that many of those
    discrepancies arose from the parties’ different account-
    ing methods.5 The court stated that the plaintiff interpre-
    ted its August 18, 2014 order, which provided that all
    unreimbursed payments owed at the time of the order
    had been reconciled, as an indication that the period
    for determining if the minimum annual threshold had
    been reached had been restarted. The court explained,
    however, that ‘‘the August 18, 2014 order does not pre-
    clude such prior expenses from being included in the
    calculation of the $3720 threshold for the calendar year
    2014 . . . [and] [t]herefore, the expenses found to be
    incurred by the defendant during the remainder of 2014
    were in excess of the . . . threshold [amount].’’ The
    court also concluded that the language of its May, 2014
    order supported the plaintiff’s method of accounting,
    however, ‘‘[o]nly for the purpose of finding the amounts
    due at this time, the court adopts the approach of the
    defendant. It does so primarily because it finds, based
    on the credible testimony of the defendant, that all of
    his claimed expenses had been paid by him by the time
    of the [March 28, 2017] hearing.’’6 (Emphasis added.)
    Despite the plaintiff’s repeated claim that the court
    erred in finding that the defendant’s medical expense
    spreadsheet summaries were credible, our review of
    the record reveals that the court, instead, credited the
    defendant’s testimony that he had, in fact, paid what
    he claimed to have paid before the March 28, 2017
    hearing.7 Because the court deduced that a number of
    the defendant’s quarterly summaries included expenses
    that had been incurred and claimed in one quarter, but
    paid in another quarter, the defendant’s testimony was
    found to have explained why there were discrepancies
    between his summaries and the documentation he pre-
    sented to the court. Our review of the record indicates
    that during the March 28, 2017 hearing and on appeal,
    these discrepancies provided the basis for many of the
    plaintiff’s claims that the defendant’s accounting sum-
    maries were inaccurate.
    The plaintiff also argues, in addition to claiming that
    the court erred in its method of calculation, that
    expenses were listed in the defendant’s medical
    expense summaries that are irreconcilable with the
    record. As proof of such a contradiction, the plaintiff
    directed the court’s attention to the defendant’s medical
    expense summary sheet and, specifically, to the entry
    labeled ‘‘[Daughter’s] Root Canal’’ for $506.30. The
    plaintiff claims that this entry is inaccurate, arguing
    that the reason the defendant could not provide any
    documentation of any payment or subsequent repay-
    ment of the expense was because she had paid for it.
    We do not agree with the plaintiff’s resulting claim that
    the defendant’s medical expense summaries are irrec-
    oncilable with the trial court record.
    Moreover, at the time the court issued its memoran-
    dum of decision, it was in possession of the parties’
    proposed orders relating to the amounts owed, along
    with explanations of how the parties believed the
    expenses should be calculated. It is clear that the court
    was well aware of the differing accounting approaches
    with respect to the calculation of amounts owed by
    both parties, which is clearly indicated and discussed
    in the court’s memoranda of decision. After a thorough
    review of the record, including the parties’ proposed
    calculations, the exhibits, and the hearing transcripts,
    we conclude that the plaintiff has failed to establish
    that the court’s determinations as to the amounts the
    parties owed one another for their children’s expenses
    were clearly erroneous.
    II
    The plaintiff next claims that the court abused its
    discretion in not finding the defendant in contempt for
    withholding payment from her. Specifically, the plaintiff
    argues that the court order requiring the payment in
    question was clear and unambiguous and that there
    was no evidence before the court suggesting that the
    defendant’s violation of the order was anything other
    than wilful. We disagree.
    The following legal principles guide our resolution
    of the plaintiff’s claim. ‘‘Contempt is a disobedience to
    the rules and orders of a court which has power to
    punish for such an offense.’’ (Internal quotation marks
    omitted.) In re Jeffrey C., 
    261 Conn. 189
    , 196, 
    802 A.2d 772
    (2002). ‘‘A finding of contempt is a question of fact,
    and our standard of review is to determine whether the
    court abused its discretion in failing to find that the
    actions or inactions of the [defendant] 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. . . . A finding
    that a person is or is not in contempt of a court order
    depends on the facts and circumstances surrounding
    the conduct. The fact that an order has not been com-
    plied with fully does not dictate that a finding of con-
    tempt must enter. . . . [It] is within the sound
    discretion of the court to deny a claim for contempt
    when there is an adequate factual basis to explain the
    failure to honor the court’s order. . . .
    ‘‘It is therefore necessary, in reviewing the propriety
    of the court’s decision to deny the motion for contempt,
    that we review the factual findings of the court that led
    to its determination. The clearly erroneous standard is
    the 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 convic-
    tion that a mistake has been made.’’ (Citations omitted;
    internal quotation marks omitted.) Auerbach v. Auer-
    bach, 
    113 Conn. App. 318
    , 326–27, 
    966 A.2d 292
    , cert.
    denied, 
    292 Conn. 901
    , 
    971 A.2d 40
    (2009).
    In the present case, the plaintiff argues simply that
    because the defendant’s actions were knowing and vol-
    untary, they must have constituted wilful contempt.
    The court’s refusal to find the defendant in contempt,
    however, was not predicated on a finding that the defen-
    dant’s actions were not knowing or voluntary, but was
    based on its finding that each party withheld payments
    from the other because of their common belief that it
    was proper to do so. The court explained this conclu-
    sion as follows in its oral decision on the parties’ con-
    tempt motions: ‘‘[G]iven the period of time covered and
    the number of bills, it would not be possible today to
    hear all the evidence the court would have to hear in
    order to make a specific finding as to how much was
    due with respect to each of those and an ultimate finding
    as to who owed what to whom. . . . But it is clear to
    the court based on the evidence presented so far that
    both parties acted in a way that they believed was
    permitted by the court order. I don’t say that it was
    appropriate for them to do so and there are principles
    of Connecticut law against self-help, but I don’t believe
    that there would be grounds for a finding by clear and
    convincing evidence that either party had wilfully vio-
    lated the court order.’’
    Because the plaintiff fails to advance any compelling
    argument as to why the court’s determination was not
    supported by the record and we are not left with the
    definite and firm conviction that a mistake has been
    made, we conclude that the court did not abuse its
    discretion in denying the plaintiff’s motion for
    contempt.
    III
    The plaintiff next claims that the court abused its
    discretion when it allowed the defendant to withhold
    money unilaterally from her in the future if he believed
    that she owed him money for unreimbursed medical
    expenses. The plaintiff further claims that the court
    unnecessarily combined two unrelated orders to pro-
    vide the defendant with the option of self-help, whereas
    she had to file a motion for contempt if the defendant
    failed to make the correct payments. We disagree.
    It is well settled that ‘‘[c]ourts have continuing juris-
    diction . . . to fashion a remedy appropriate to the
    vindication of a prior . . . judgment . . . pursuant to
    [their] inherent powers . . . . When an ambiguity in
    the language of a prior judgment has arisen as a result
    of postjudgment events, therefore, a trial court may, at
    any time, exercise its continuing jurisdiction to effectu-
    ate its prior [judgment] . . . by interpreting [the]
    ambiguous judgment and entering orders to effectuate
    the judgment as interpreted . . . . Accordingly, we
    will not disturb a trial court’s clarification of an ambigu-
    ity in its own order unless the court’s interpretation of
    that order is manifestly unreasonable.’’ (Internal quota-
    tion marks omitted.) Lawrence v. Cords, 
    159 Conn. App. 194
    , 198–99, 
    122 A.3d 713
    , (2015).
    In the present case, contrary to the plaintiff’s claim,
    the court’s remedial order lays out a detailed rule of
    future application that the defendant was to follow
    when presenting proof of unreimbursed medical
    expenses to the plaintiff. The court’s order provided:
    ‘‘If and when the accumulated receipts for the year
    reach the threshold so that the plaintiff, under the cur-
    rent orders of the court, would be responsible to reim-
    burse a percentage of those to the defendant, he shall
    include his calculation of what that amount is. And if
    the plaintiff disputes that calculation, she shall notify
    the defendant in writing within thirty days after she’s
    received those receipts. If she doesn’t dispute it, then
    she shall make payment of her share within sixty days
    after her receipt of those receipts. If her undisputed
    portion of those expenses has not been paid to the
    defendant by the due date of the next quarterly install-
    ment of the activity fee, he shall then be entitled to
    deduct from that quarterly installment the amount of
    the unpaid share of unreimbursed expenses for medical
    [costs] owed by the plaintiff. If any amount is in dispute
    as notified properly by the plaintiff, there shall be no
    deduction until that dispute has been resolved either
    by agreement of the parties or by court order.’’
    The order clearly provides that if the plaintiff dis-
    puted a future expense claimed by the defendant, then
    the defendant was not permitted ‘‘to deduct from that
    quarterly installment the amount of the unpaid share
    of unreimbursed expenses for medical [costs] owed by
    the plaintiff.’’ Only when the plaintiff did not dispute
    the expense and it was overdue by an entire quarter,
    did the order allow for the defendant to make a deduc-
    tion. After viewing the court’s remedial order in the
    context of its previous orders, and acknowledging that
    the court, being intimately familiar with the details of
    the present case, was in the best position to give effect
    to the prior orders, we conclude that the court’s reme-
    dial order was not manifestly unreasonable. Accord-
    ingly, the plaintiff has failed to demonstrate that the
    court abused its discretion by allowing the defendant
    to deduct undisputed unpaid medical expenses from
    subsequent payments.
    IV
    The plaintiff also claims that the court abused its
    discretion when it denied her motion to reargue.8 Specif-
    ically, the plaintiff argues that the court incorrectly
    concluded that she had ample opportunity to submit
    evidence prior to the final hearing but had chosen not
    to do so. We disagree.
    ‘‘[T]he purpose of a reargument is . . . to demon-
    strate to the court that there is some decision or some
    principle of law which would have a controlling effect,
    and which has been overlooked, or that there has been
    a misapprehension of facts. . . . It also may be used
    to address . . . claims of law that the [movant] claimed
    were not addressed by the court. . . . [A] motion to
    reargue [however] is not to be used as an opportunity
    to have a second bite of the apple . . . .’’ (Internal
    quotation marks omitted.) Liberti v. Liberti, 132 Conn.
    App. 869, 874, 
    37 A.3d 166
    (2012). ‘‘The standard of
    review for a court’s denial of a motion to reargue is
    abuse of discretion. . . . When reviewing a decision
    for an abuse of discretion, every reasonable presump-
    tion should be given in favor of its correctness. . . .
    As with any discretionary 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.) Mengwall v.
    Rutkowski, 
    152 Conn. App. 459
    , 465–66, 
    102 A.3d 710
    (2014).
    In her motion to reargue, the plaintiff argued that
    she had not been given a meaningful opportunity to
    present evidence on her motion for contempt. Specifi-
    cally, she argued that the court had used an improper
    method in calculating what unreimbursed medical
    expenses were owed and that representations made by
    the defendant were not supported by the record.9 She
    further argued that an additional hearing was warranted
    because she had acquired relevant evidence on the issue
    of contempt that arose after the court made its oral
    order of November 23, 2016, but before it issued its
    written memorandum of decision.10
    In its memorandum of decision on the motion to
    reargue, the court stated: ‘‘The plaintiff seeks, among
    other things, a further opportunity to present evidence
    in support of a finding of contempt against the defen-
    dant. . . . The record will reflect that on November 3,
    2016, a hearing commenced with regard to multiple
    motions filed by the parties, including each party’s con-
    tempt motion against the other. It was made clear at the
    outset, and agreed by the parties, that a single combined
    hearing would be held on all of the pending motions.
    The hearing lasted essentially the entire afternoon of
    November 2, 2016, resuming on November 23, 2016,
    and continuing for most of that day. Both parties testi-
    fied, with the plaintiff giving testimony for several hours
    spanning both dates. . . .
    ‘‘By the end of the second day of the hearing on
    multiple motions, the court had heard sufficient credi-
    ble evidence to conclude that while the activity fee and
    medical reimbursement orders had not been followed,
    there was also sufficient credible evidence to preclude
    it from finding contempt on the part of either party
    under the Brody standard.11 For the reasons of judicial
    efficiency, and after hours of testimony which was
    sometimes repetitive, the court issued remedial orders
    at the end of the day on November 23, 2016. . . .
    ‘‘The bulk of the remainder of the plaintiff’s motion
    requests either the court’s reconsideration of evidence
    presented at the hearing, or its allowance of additional
    evidence that might have been submitted at the hearing
    or that relates to events occurring after the conclusion
    of the hearing. With the exception of one issue,12 the
    court denies those requests.’’ (Footnotes added.)
    Despite the plaintiff’s assertions that the ‘‘court, with-
    out explanation, denied the plaintiff’s request to present
    additional and new evidence, other than related to the
    orthodontia payments,’’ the record is clear that the
    court provided the plaintiff with a sufficient explanation
    as to why it denied her motion. Furthermore, a review
    of the hearing transcripts indicates that counsel for the
    parties agreed in advance to prioritize certain issues
    before the court with respect to their various motions.
    Accordingly, the plaintiff has failed to demonstrate that
    the trial court abused its discretion when it denied her
    motion to reargue.
    V
    Lastly, the plaintiff claims that the court violated her
    due process right to be heard when it denied her motion
    for contempt before she rested her case-in-chief on that
    motion. Specifically, the plaintiff claims that she was
    not afforded a reasonable opportunity to cross-examine
    the defendant or to present evidence in support of her
    motion for contempt. She further argues that it is
    unclear how the court could make a credibility finding
    without the plaintiff’s testimony in support of that
    motion. We disagree.
    ‘‘It is a fundamental tenet of due process . . . that
    persons whose property rights will be affected by a
    court’s decision are entitled to be heard at a meaningful
    time and in a meaningful manner. . . . Where a party
    is not afforded an opportunity to subject the factual
    determinations underlying the trial court’s decision to
    the crucible of meaningful adversarial testing, an order
    cannot be sustained. . . . [A] party’s constitutionally
    protected right to present evidence [however] is not
    unbounded. . . . To the contrary, we previously have
    determined that the court reasonably may limit the time
    allowed for an evidentiary hearing.’’ (Citations omitted;
    internal quotation marks omitted.) Harris v. Hamilton,
    
    141 Conn. App. 208
    , 215 n.5, 
    61 A.3d 542
    (2013), citing
    Szot v. Szot, 
    41 Conn. App. 238
    , 241–42, 
    674 A.2d 1384
    (1996).
    ‘‘In determining whether a defendant’s right of cross-
    examination has been unduly restricted, we consider
    the nature of the excluded inquiry, whether the field
    of inquiry was adequately covered by other questions
    that were allowed, and the overall quality of the cross-
    examination viewed in relation to the issues actually
    litigated at trial. . . . Although it is axiomatic that the
    scope of cross-examination generally rests within the
    discretion of the trial court, [t]he denial of all meaning-
    ful cross-examination into a legitimate area of inquiry
    constitutes an abuse of discretion.’’ (Citation omitted;
    internal quotation marks omitted.) Dubreuil v. Witt, 
    65 Conn. App. 35
    , 42, 
    781 A.2d 503
    (2001).
    The plaintiff argues that our decision in Szot applies
    with equal force in the present case. ‘‘In Szot, the court,
    despite the protests of the plaintiff’s counsel that she
    still had additional evidence to present, ended not only
    cross-examination but also the entire presentation of
    evidence. . . . This court held that the trial court’s ter-
    mination of the proceedings violated the plaintiff’s due
    process right to be heard.’’ (Citation omitted; emphasis
    added; internal quotation marks omitted.) Corriveau v.
    Corriveau, 
    126 Conn. App. 231
    , 237, 
    11 A.3d 176
    , cert.
    denied, 
    300 Conn. 940
    , 
    17 A.3d 476
    (2011). Here, unlike
    in Szot, the court’s oral decision with respect to the
    issue of contempt did not terminate the entire presenta-
    tion of evidence; nor did the court make the order in
    spite of the plaintiff’s express protest that she still had
    evidence to present with respect to contempt. Rather,
    near the end of the second day of the evidentiary hearing
    on November 23, 2016, during a short recess, the trial
    court met with counsel for both parties in chambers to
    address the contempt issue; upon resuming the hearing,
    the court made its ruling with respect to the parties’
    motions for contempt.13
    In the court’s ruling, it explained the need to make
    two sets of remedial orders to properly effectuate its
    previous orders. It stated: ‘‘One [set] is a remedial order
    to make a finding as to exactly what is owed by whom
    to whom. . . . The other set concerns the future and
    how we can avoid the situation where these parties are
    again operating at cross purposes and wind up back
    in court over the same issues.’’ Thereafter, the court
    described the basis for its decision not to hold either
    party in contempt, how it wanted to approach the dis-
    puted amounts that were claimed under the court’s
    previous orders, and how it was going to craft the reme-
    dial order so as to create a more workable situation in
    the future. The court then asked counsel: ‘‘Any ques-
    tions or need for clarification of any of those orders?
    Counsel?’’ In response, both counsel raised issues con-
    cerning the manner in which the parties would reconcile
    amounts owed to one another, the manner in which
    they should present proof of their expenses to one
    another, and whether there was a need for a further
    order expressly stating that the parties must act in good
    faith when disputing amounts claimed by one another.
    None of the issues raised with the court, however, con-
    cerned the court’s announced intention not to hold
    either party in contempt.
    Thereafter, before proceeding to closing argument,
    the court asked counsel again: ‘‘[Are there] [a]ny other
    questions?’’ Hearing none, the court stated: ‘‘Then that
    will dispose [of], for the time being, the motions for
    contempt subject to [a] further hearing if the parties
    aren’t able to resolve the issue of the amounts that, as
    of this date, are due from either party to the other for
    unreimbursed medicals or activity fees. If the parties
    aren’t able to reach an agreement, the court will have
    further hearing for the purpose of those remedial
    orders . . . .’’
    At no point during the remainder of the hearing did
    the plaintiff ask to submit additional evidence. Although
    the plaintiff continues to argue on appeal that she was
    unable to bring several pieces of relevant evidence to
    the court’s attention, nothing in the record suggests
    that, had the plaintiff been allowed even greater latitude
    and more time, she would have presented evidence with
    respect to wilfulness that was not already before the
    court. The record indicates that the evidence that the
    plaintiff repeatedly claimed the court ignored largely
    dealt with the fact that the defendant knowingly made
    deductions from amounts he was ordered to pay to the
    plaintiff, which she, therefore, claims to have consti-
    tuted acts of wilful contempt. As discussed previously
    in this opinion, however, ‘‘[n]oncompliance alone will
    not support a judgment of contempt. . . . [It] is within
    the sound discretion of the court to deny a claim for
    contempt when there is an adequate factual basis to
    explain the failure to honor the court’s order.’’ (Empha-
    sis added; internal quotation marks omitted.) Spencer
    v. 
    Spencer, supra
    , 
    177 Conn. App. 542
    .
    Our review of the record reveals that the plaintiff
    had a sufficient opportunity to provide the court with
    evidence of contempt during the November, 2016 hear-
    ings. Accordingly, the plaintiff has failed to show that
    her constitutional rights were violated or that she was
    deprived of a fair hearing as a result of the court’s
    decision.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    Unreimbursed medical expenses refer to expenses not covered by the
    defendant’s insurance policies.
    2
    The parties entered into a postjudgment agreement, dated July 11, 2013,
    which modified their original agreement to require that the defendant pay
    the plaintiff, on a quarterly basis, $1200 per year, per child, for the children’s
    extracurricular activities, otherwise, the terms of the 2012 agreement were
    to remain in full force and effect. The July, 2013 agreement was made a
    court order on July 15, 2013.
    3
    In addition to the parties’ contempt motions, the court also heard various
    other motions filed by the parties. The court’s rulings on those motions are
    not at issue in the present appeal.
    4
    See footnote 10 of this opinion.
    5
    The two approaches differed in that they calculated what was owed on
    the basis of when the expense was incurred versus when the expense
    was actually paid. In the present case, the defendant argued that expenses
    incurred during any relevant quarter could be included in the accounting
    for that quarter. Conversely, the plaintiff argued that only expenses paid in
    a relevant quarter should be reimbursed in that quarter.
    6
    The memorandum of decision also provided that, ‘‘because the plaintiff’s
    proposed findings and orders highlight an issue likely to recur in the reconcil-
    iation of future unreimbursed medical expenses, the court makes a remedial
    order regarding expenses incurred and paid after November 23, 2016 . . . .
    Going forward, consistent with the terms of the judgement as modified
    by the May 27, 2014 order, the quarterly unreimbursed medical expense
    reconciliations shall be based on actual payments made during the quarter,
    and shall not include expenses to be paid in the future for services rendered
    during the quarter.’’ (Emphasis added.)
    7
    The following exchange occurred on the record:
    ‘‘The Court: All right. Sir, now, you were asked before about when
    expenses were accrued as opposed to when they were paid. Is it your
    testimony now that every expense that you’re claiming to have paid for the
    children, except the ones that your former wife paid herself, any unreim-
    bursed medical expense, that you’ve paid them all as of now?
    ‘‘The Defendant: Yes.
    ‘‘The Court: So, you might not have paid it as of the time you
    requested reimbursement?
    ‘‘The Defendant: Yes, Your Honor.
    ‘‘The Court: But you’ve paid it by now?
    ‘‘The Defendant: Yes.’’
    8
    The motion filed with the court was titled ‘‘Motion to open, to submit
    additional and new evidence, to reargue and for reconsideration [of] the
    court’s decision dated May 18, 2017.’’ The court correctly treated the plain-
    tiff’s motion as a motion to reargue. See Practice Book § 11–12. For the
    purpose of our analysis, we adopt the court’s characterization and refer to
    the plaintiff’s motion as her motion to reargue.
    9
    The plaintiff also argued that the court incorrectly included orthodontic
    costs with medical and dental costs, despite each being covered by different
    orders and subject to different calculations. She further argued that she
    was not afforded a reasonable opportunity to address the issue of the
    orthodontic costs because they were not previously in dispute. The court
    granted the plaintiff’s motion with respect to this issue and permitted both
    parties to submit to the court any relevant evidence with respect to orthodon-
    tic expenses. The court’s order provided: ‘‘[U]nder all the circumstances,
    the court concludes that the plaintiff did not understand or expect that
    orthodontia expenses would be taken into account. In the interest of justice,
    the court wishes to afford both parties the opportunity to provide evidence
    of such expenses.’’
    10
    The court restricted the March 28, 2017 hearing to the presentation of
    evidence with respect to specific amounts owed by either party. In her
    motion to reargue, the plaintiff claimed that she possessed additional evi-
    dence of wilful contempt that occurred after the November 23, 2016 hearing.
    The court’s decision, however, related specifically to the period from August
    18, 2014 to November 23, 2016. The court correctly denied the plaintiff’s
    motion with respect to this evidence because it concerned conduct that
    was outside of the relevant time frame.
    11
    See Brody v. Brody, 
    315 Conn. 300
    , 319, 
    105 A.3d 887
    (2015) (finding
    of civil contempt must be proven by clear and convincing evidence, not by
    preponderance of evidence).
    12
    See footnote 11 of this opinion.
    13
    The court made the following statement: ‘‘I would ask [the court] monitor
    to prepare a transcript of the remarks and the interim orders that I’m about
    to make following a discussion I had in chambers with counsel during
    the recess.’’
    

Document Info

Docket Number: AC40644

Citation Numbers: 207 A.3d 525, 189 Conn. App. 247

Filed Date: 4/16/2019

Precedential Status: Precedential

Modified Date: 1/12/2023