Friedlander v. Friedlander

• Decision Date: 09 August 1983
• Citation: 191 Conn. 81,463 A.2d 587
• Court: Connecticut Supreme Court
• Parties: Claire D. FRIEDLANDER v. Henry Z. FRIEDLANDER.

Page 587

463 A.2d 587

191 Conn. 81

Claire D. FRIEDLANDER v. Henry Z. FRIEDLANDER.

Supreme Court of Connecticut.

Argued June 1, 1983.

Decided Aug. 9, 1983.

Henry Z. Friedlander, Stamford, pro se, appellant (defendant in each case).

Saul Kwartin, Stamford, for appellee (plaintiff in each case).

Before PETERS, HEALEY, PARSKEY, GRILLO and HENNESSY, JJ.

PARSKEY, Associate Justice.

This case presents three appeals by the defendant that were consolidated for the purposes of oral argument. In appeal No. 10785, the defendant appeals a contempt order and a $1000 fine, the award to the plaintiff of counsel fees in connection with the contempt, the granting of a $3000 allowance to the plaintiff to defend this appeal, and the denial of the defendant's motion to reargue, modify, and order. In appeal No. 10870, the defendant appeals the denial of his motion for order, the award to the plaintiff of counsel fees for defense of that motion, and the granting of a $3500 allowance to the plaintiff to defend this appeal. In appeal No. 11456, the defendant appeals a denial of his motion for order, the award to the plaintiff of counsel fees for defense of that motion, and a subsequent contempt order.

The underlying facts that are common to all three appeals are as follows: The parties were married in 1961. They have two children, Jeffrey, born in 1963, and Joel, born in 1966. The parties were divorced on August 19, 1971. The court approved the parties' written separation agreement and ordered it placed in the file of the case. As part of the judgment, the court awarded the plaintiff wife, inter alia, custody of the two sons, $5000 lump sum alimony, and the right to occupy the family home at 33 Lolly Lane, Stamford, which is jointly owned by the parties. The defendant husband was awarded, inter alia, reasonable visitation.

Immediately after the decree a barrage of litigation between the parties ensued, only some of which is relevant here. On March 17, 1972, the court granted the plaintiff's motion that the defendant's visitation rights be exercised at a place other than the premises of 33 Lolly Lane. On August 30, 1972, the plaintiff sought to clarify the defendant's rights with respect to 33 Lolly Lane and moved that the court specifically prohibit "the defendant from entering upon the land or building at 33 Lolly Lane, Stamford." On September 8, 1972, the court granted the motion, stating "Defendant forbidden to go on land or in building at 33 Lolly Lane, Stamford, Conn." It is this order, not appealed by the defendant, that is the crux of all three appeals.

APPEAL NO. 10785

The defendant continued to enter the land and premises of 33 Lolly Lane. As a result, between 1975 and 1980 the plaintiff filed and was granted a series of contempt motions, none of which the defendant appealed. Despite these findings of contempt, on October 25, 1980, the defendant went to the house for an unscheduled visit with his sons. An altercation ensued which resulted in the plaintiff calling the police. The plaintiff filed another contempt motion, which was granted on November 17, 1980. In addition, the defendant was fined $1000 and was ordered to pay the plaintiff's counsel fees. On December 4, 1980, the defendant appealed this order. ¹ On December 19, 1980, the defendant submitted to the Appellate Session of the Superior Court a "list of 75 perfidious acts committed by wife's counsel." On January 18, 1981, the court granted the plaintiff's motion for an allowance to defend this appeal and ordered the defendant to pay the plaintiff $3000 for this purpose. On January 18, 1981, the defendant, pursuant to Practice Book § 3062, appealed this allowance.

On the same day, the defendant filed a motion to reargue, modify, and order in which he requested the vacation of the March, 1972 modification order, the September, 1972 modification order, the November, 1980 contempt order, and the January, 1981 allowance of counsel fees as well as the reinstatement of his rights as determined by the original 1971 decree. In addition, he requested counsel fees. This motion ² was denied on February 2, 1981, for failure to conform to the rules of practice. On February 18, 1981, the defendant included in his preliminary statement of issues the denial of this motion.

This court's role in reviewing a contempt order is very limited. "An adjudication of contempt is final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt." State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960); see McClain v. Robinson, 189 Conn. 663, 669-70, 457 A.2d 1072 (1983). With this in mind, we turn to the defendant's claims arising out of the November 17, 1980 order of contempt, attorneys' fees and $1000 fine. ³

We first address two challenges that can be dismissed summarily, the defense of laches and the claim that the September, 1972 order was vague and ambiguous. "Laches consists of an inexcusable delay which prejudices the defendant." Danaher v. C.N. Flagg & Co., 181 Conn. 101, 107, 434 A.2d 944 (1980). The defendant claims that the plaintiff waited "eight years and two months before asserting that the Husband could not go up and down the driveway of his domicile." This claim is at best disingenuous. The record shows that the plaintiff initiated four contempt motions that were granted in the last eight years. It was hardly error for the court to determine that this did not constitute delay and to reject the defendant's claim of laches.

Equally disingenuous is the defendant's claim that his conduct was innocent because the September, 1972 order was vague. The defendant premises this argument on an insistence that the word "land" does not appear in the order but rather the word "property" does appear, and "property" has never been interpreted to mean "land." Hence, he claims he is without fault for violating the order. ⁴

Because no person ought to be entrapped by vague and general orders; Rogers Mfg. Co. v. Rogers, 38 Conn. 121, 125 (1871); this claim, were it factually based, would give us pause. But the defendant's claim is based in fantasy, for the September, 1972 order clearly reads: "Defendant Forbidden to Go on Land or in Building at 33 Lolly Lane, Stamford, Conn." The word "property" does not even appear in the order.

"The inability of the defendant to obey an order of the court, without fault on his part, is a good defense to a charge of contempt. 17 Am.Jur.2d, Contempt, § 51." Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). In this case, however, where the order is crystal clear, where the defendant was found in contempt of this very order four times, and where the defendant admits to having been on the land on October 25, 1980, his conduct cannot be characterized as innocent.

The defendant next challenges the imposition of $300 in counsel fees and a $1000 fine as arbitrary and capricious and excessive. We do not agree. The court has the power to fine one who has been found in contempt. See, e.g., Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). The plaintiff has had to bring five contempt motions in order to enforce the September, 1972 order. Three of those contempt orders included small fines and yet the defendant continued to violate the order. Given these facts, the $1000 fine and the award of $300 in counsel fees could hardly be deemed excessive or an abuse of discretion.

Similarly, it was not an abuse of discretion for the judge to award the plaintiff an allowance of $3000 to defend this appeal. The "inherent" power of the court to award such an allowance is well settled. See Krasnow v. Krasnow, 140 Conn. 254, 261, 99 A.2d 104 (1953). "Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion." El Idrissi v. El Idrissi, 173 Conn. 295, 301-302, 377 A.2d 330 (1977). In exercising its broad discretion it is appropriate for the court to consider the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the respective financial abilities of the parties. The defendant contends that the trial court abused its discretion in awarding the allowance because the plaintiff works and the parties have economic parity. The trial court held a hearing on the parties' financial status on January 12, 1981. A reading of the transcript reveals that it did not find economic parity between the parties and awarded the allowance on the basis of the defendant's "asset picture" and the numerous suits the plaintiff has had to defend.

"The basis of the allowance is that she [the wife] should not be deprived of her rights because she lacks funds ...." Steinmann v. Steinmann, 121 Conn. 498, 505, 186 A. 501 (1936). The plaintiff has had to defend numerous suits, some "frivolous," on matters that were long ago adjudicated. She has also had to bring five contempt motions. In addition to these three appeals, there is another appeal pending and numerous suits in the lower courts. In light of all this evidence, it was not an abuse of discretion for the court to award the plaintiff an allowance to defend this appeal. ⁵

Finally, the defendant claims that it was error for the court on February 2, 1981, to dismiss his "Motion to Reargue, Modify and Order" which sought to vacate the contempt order and all other orders on the basis of allegedly new evidence. The defendant also sought counsel fees. The court dismissed the motion for failure to conform to the rules of practice and denied the defendant counsel fees. Since the issues raised in that motion were not properly before the trial court, we cannot consider them here. Practice Book § 3063. ⁶

APPEAL NO. 10870

On May 8, 1981, the defendant filed a motion for order for an immediate hearing "to complete action on several matters currently unresolved in this Court ...."...