Emerick v. Emerick

Decision Date05 November 1992
Docket NumberNo. 10682,10682
Citation28 Conn.App. 794,613 A.2d 1351
PartiesClaudia EMERICK v. Roger EMERICK.
CourtConnecticut Court of Appeals

Roger Emerick, pro se.

Lloyd Frauenglass, Glastonbury, filed a brief, for appellee (plaintiff).

Before NORCOTT, LANDAU and HEIMAN, JJ.

HEIMAN, Judge.

The defendant, Roger Emerick, appeals from the trial court's judgment denying his motion to modify his child support payments and the trial court's finding of contempt. He claims that the trial court improperly (1) enforced a prior child support order, (2) awarded counsel fees to the plaintiff, (3) held a hearing on the plaintiff's motion for contempt without advising the defendant of his right to counsel, (4) refused to allow him a continuance for the purpose of securing counsel, (5) enforced a prior child support order even though the court's ability to enforce prior orders regarding visitation was foreclosed by the plaintiff's actions, (6) refused to permit the judge who presided over the underlying dissolution action to testify as to the meaning of certain orders entered by him and (7) denied his application for costs. We reverse the trial court's finding of contempt, together with the orders relating to it, and affirm the judgment in all other respects.

The history of the parties' marriage and the course of the litigation leading up to the judgment dissolving that marriage is set forth in this court's opinion resolving the parties' appeals from the judgment dissolving the marriage and entering consequential orders. See Emerick v. Emerick, 5 Conn.App. 649, 502 A.2d 933, cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986); see also Emerick v. Emerick, 17 Conn.App. 811, 551 A.2d 36 (1988) (per curiam), cert. denied, 210 Conn. 811, 556 A.2d 609 (1989) (the defendant's appeal from numerous postappeal and postjudgment motions involving claims for modification of custody, financial awards, counsel fees and in defense of contempt orders regarding his failure to comply with financial orders of the dissolution court). When the court dissolved the parties' marriage, it ordered the defendant to pay the plaintiff $115 per week for the support of their one minor child. The defendant's failure to comply with this child support order generated the motions at issue in this case.

I

We turn first to the defendant's claim that the trial court improperly held him in contempt of court because it failed to advise him of his right to counsel in a contempt proceeding in which he faced potential incarceration, and, in the event that he was found to be indigent, to appointed counsel. He asserts that the trial court's failure to advise him of these rights requires that we reverse the trial court's finding of contempt as well as its finding that an arrearage existed with respect to the child support payments. We agree.

"Civil contempt is 'conduct directed against the rights of the opposing party. Bessette v. W.B. Conkey Co., 194 U.S. 324, 328, 24 S.Ct. 665, , 48 L.Ed. 997 [1904]; Welch v. Barber, [52 Conn. 147, 157 (1884) ].' McTigue v. New London Education Assn., 164 Conn. 348, 352, 321 A.2d 462 (1973)." Connolly v. Connolly, 191 Conn. 468, 482, 464 A.2d 837 (1983). One of the remedies available to a court that finds a party in civil contempt due to that party's failure to pay court ordered support or alimony is the confinement of the contemnor until the contempt is purged. See General Statutes § 46b-87.

The due process clause of the fourteenth amendment to the United States constitution guarantees the right to appointed counsel to any indigent civil contemnor who might be incarcerated. Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir.1983); United States v. Bobart Travel Agency, Inc., 699 F.2d 618, 620 (2d Cir.1983); Mastin v. Fellerhoff, 526 F.Supp. 969, 973 (S.D.Ohio 1981); see also Lake v. Speziale, 580 F.Supp. 1318, 1341-42 (D.Conn.1984). This right to counsel is merely a logical extension of the right to counsel in criminal cases in which an accused is incarcerated. Ridgway v. Baker, supra; United States v. Bobart Travel Agency, Inc., supra; see also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The courts' recognition of a due process right to counsel in civil contempt cases in which the contemnor might be imprisoned reflects a judgment that "it is the defendant's interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments' right to counsel in criminal cases, which triggers the right to appointed counsel...." Mastin v. Fellerhoff, supra; see also Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); In re Gault, 387 U.S. 1, 34-42, 87 S.Ct. 1428, 1447-51, 18 L.Ed.2d 527 (1966); Ridgway v. Baker, supra. Thus, cases discussing the nature of the sixth amendment right to counsel in criminal cases are instructive regarding the scope of the fourteenth amendment right to counsel in civil contempt cases in which a litigant might be incarcerated.

The trial court has an obligation to inform the potential contemnor of his right to appointed counsel to ensure that any waiver of the right to counsel is intelligent and competent. In re Jessen, 738 F.Supp. 960, 963 (W.D.N.C.1990); see Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). "The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused--whose life or liberty is at stake--is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record." Johnson v. Zerbst, supra.

Practice Book § 484A implements the right to court appointed counsel in civil contempt proceedings. 1 It provides in pertinent part: "A person who is before the court in a civil contempt proceeding involving the failure to comply with a court order in a family relations case and who faces potential incarceration shall be advised of his right to be represented by counsel and his right to court appointed counsel if he is indigent." This rule imposes two duties on the trial court. First, each person appearing before the court in a civil contempt proceeding must be advised of his or her right to counsel. Second, counsel must be appointed for each indigent potential contemnor who might be incarcerated if found in contempt.

Here, the trial court did not advise the defendant of either his right to be represented by counsel or his right to appointed counsel in the event that he was indigent. The trial court also failed to state on the record that it had eliminated incarceration as a possible penalty in the event that the defendant was adjudicated in contempt. The trial court's failure so to advise the defendant ran afoul of both the fourteenth amendment to the United States Constitution and Practice Book § 484A.

Where a trial court has failed to inform a defendant of his constitutional right to appointed counsel, we will not attempt to discern whether the error was harmless. Such failure is reversible error. See Johnson v. Zerbst, supra; In re Jessen, supra; see also Argersinger v. Hamlin, supra (no harmless error analysis where a criminal defendant was deprived of his constitutional right to counsel); Gideon v. Wainright, supra (no harmless error analysis where a criminal defendant was deprived of his constitutional right to counsel). The failure to advise the defendant properly is fatal not only to the finding of contempt, but also to the orders related thereto: the order for the payment of counsel fees arising out of the finding of contempt, the finding that an arrearage existed and the order to pay the arrearage.

II

We turn next to the defendant's claim that the trial court improperly ordered the enforcement of the support order. Reduced to its essence, the defendant's claim appears to be that the plaintiff's removal of their daughter to Brazil, which he claims was in violation of the dissolution court's orders, had two legal consequences: it required the trial court to grant his motion to modify his child support payments and relieved him of his obligation to comply with the dissolution court's child support order. We are not persuaded by his arguments.

The following background is necessary to resolve the defendant's claims. At the hearing on the plaintiff's motion for contempt, the defendant claimed that in September, 1985, the plaintiff willfully removed their child to Brazil in violation of the dissolution court's order that neither party permanently remove the child from Connecticut. He also claimed that the removal of the child to Brazil violated the dissolution court's order allowing a party to remove the child from Connecticut only when such removal does not interfere with the court ordered visitation. He argues that the plaintiff's violation of the dissolution court's orders excuses him from complying with his support obligation. A close reading of the judgment file, as corrected by the trial court after remand from this court, however, does not support the defendant's assertion that a specific order forbidding the removal of the child from the state of Connecticut exists. Although the original judgment provided that removal of the child from Connecticut would effectuate a change of custody, that clause in the judgment was stricken in accordance with the remand from this court. See Emerick v. Emerick, supra, 17 Conn.App. at 5 Conn.App. 649, 551 A.2d 36. The corrected judgment merely provides that during periods of visitation the...

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