Gil v. Gil, 25912.

• Decision Date: 14 March 2006
• Docket Number: No. 25912.,25912.
• Citation: 94 Conn.App. 306,892 A.2d 318
• Court: Connecticut Court of Appeals
• Parties: Karyn GIL v. John A. GIL.

892 A.2d 318

94 Conn.App. 306

Karyn GIL v. John A. GIL.

No. 25912.

Appellate Court of Connecticut.

Argued January 4, 2006.

Decided March 14, 2006.

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Jonathan W.A. Ruhe, Wethersfield, for the appellant (plaintiff).

Louis Kiefer, for the appellee (defendant).

Campbell D. Barrett, guardian ad litem, with whom, on the brief, was Kevin W. Hadfield, certified legal intern, for the minor child.

FLYNN, HARPER and DUPONT, Js.^*

DUPONT, J.

The plaintiff, Karyn Gil, appeals from the judgment of the trial court, finding her in contempt for denying the defendant, John A. Gil, his court-ordered visitation with their minor child. On appeal, the plaintiff claims that the court improperly (1) found her in contempt for acts that were not pleaded in the defendant's motion for contempt and for time periods not included in the motion for contempt, (2) found her in contempt for violating orders that were ambiguous and vague, (3) terminated the hearing on the motion without providing her an opportunity to defend herself, (4) relied on evidence contained in the medical records of the child for purposes of determining whether she was in contempt, and (5) relied on testimony from the child's former psychologist and excluded timely evidence from the child's current treating psychologist. We disagree and affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant for the resolution of the plaintiff's claims on appeal. On May 18, 1999, the plaintiff filed a complaint, seeking dissolution of her marriage to the defendant. On April 10, 2000, the court rendered judgment dissolving the marriage and incorporated by reference a separation agreement between the parties, which the court found was fair and equitable. The separation agreement provided for, inter alia, joint legal custody of the parties' minor child, primary residence to be with the plaintiff and visitation by the defendant two days per week.¹

The agreement provided that the defendant would not exercise overnight visitation until the child's psychologist deemed that it was appropriate. The parties were to "exert every reasonable effort to maintain free access and unhampered contact. . . and foster a feeling of affection between the child and the other party." Additionally, the agreement provided that "[n]either party shall do anything which may estrange the child from the other party nor injure the opinion of the child as to [her] mother or father nor act in such a way as to hamper the free and natural development of any of the child's love and respect for the other party." In 2001, the agreement was modified with respect to the previously discussed visitation scheme.² The defendant would provide the plaintiff with his work schedule with requested days and times for visitation, and the plaintiff would respond with a list of changes based on the child's activities and other commitments.

On September 3, 2003, the defendant filed a motion for contempt, claiming that "from 2000 to present," the plaintiff had shortened the defendant's hours of visitation and, on numerous occasions, denied visitation. On that same date, the court appointed attorney Campbell D. Barrett as guardian ad litem for the child. On October 30, 2003, the defendant filed a motion for attorney's fees incurred in enforcing compliance with the court's visitation orders. The hearings on the motions began on November 13, 2003. Additional hearing dates occurred on November 14, 2003, and March 25 and 26, and April 5, 2004. On April 5, 2004, the court found the plaintiff in contempt and ordered that she pay the attorney's fees for the defendant's counsel. The plaintiff subsequently filed a motion to reargue, which was denied by the court. This appeal followed.

As a preliminary matter, we set forth the legal principles that guide our resolution of the plaintiff's claims and identify the applicable standard of review.³ "The court's authority to impose civil contempt penalties arises not from statutory provisions but from the common law. . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both." (Citations omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982). An appeal from a judgment of civil contempt is technically limited to "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." (Internal quotation marks omitted.) Id., at 731, 444 A.2d 196. Civil contempt may be improper if, among other things, "the findings on which it was based were ambiguous and irreconcilable. . . ." (Citations omitted.) Id., at 732, 444 A.2d 196. "A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [alleged contemnor] 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. . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did." (Citation omitted; internal quotation marks omitted.) Rocque v. Design Land Developers of Milford, Inc., 82 Conn.App. 361, 370, 844 A.2d 882 (2004).

The plaintiff's first claim is that the court improperly found her in contempt for acts and time periods that were not pleaded in the defendant's motion for contempt. Specifically, the plaintiff contends that the finding of contempt for actions of which the plaintiff had no notice is a violation of her due process rights. She alleges that she had no notice that the court would consider evidence of acts that occurred subsequent to the date of the filing of the contempt motion; thus, the finding of contempt, premised on those acts, violated her due process rights. In support of her argument, the plaintiff alleges the following facts: (1) the defendant's motion for contempt, dated September 3, 2003, alleged that "from 2000 to present," the plaintiff had shortened hours of visitation and denied visitation on numerous occasions; (2) the court heard evidence of visitation disruptions from January, 2003, to April, 2004; and (3) the court found the plaintiff in contempt, in part, for failing to follow visitation orders from September 3, 2003, to April 5, 2004. The plaintiff also argues that the court found her in contempt for actions that were not the subject of the defendant's motion for contempt, specifically interactions with various medical, psychological and educational professionals.⁴

"[T]he interpretation of pleadings is always a question of law for the court. . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [A pleading] 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." (Citations omitted; internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002). "Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, 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." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 174, 851 A.2d 1113 (2004).

The defendant's motion for contempt recites that the "plaintiff . . . has disobeyed the court order in the following ways . . . . From 2000 to present, the plaintiff has shortened my hours of visitation. At other times, I have not received my visitation at all . . . ." Read broadly and realistically, as well as in the context of this dispute, the motion encompassed a continuing course of conduct theory. The court issued its original order in April, 2000. The defendant's motion clearly alleged that the plaintiff had engaged in a continuous course of contemptuous conduct from the inception of the order to the date of filing, with no indication that such conduct would cease absent the court exercising its coercive power. The plaintiff cannot complain now that she was not on notice that the court would find her in contempt for the allegedly contemptuous conduct that continued even after the motion was filed.

It is beyond dispute that the defendant's motion for contempt placed the plaintiff on notice that her conduct from 2000 to September 3, 2003, interfering with and denying the defendant's court-ordered visitation, formed the basis of the defendant's motion. It borders on disingenuousness for the plaintiff to claim that she was not on notice that the court could find her in contempt for what the defendant had specifically pleaded as a three year continuing course of conduct, as well as for any subsequent identical conduct.⁵ The plaintiff's claim is contrary to both common sense and the well settled principle that pleadings must be construed broadly and realistically, rather than narrowly and technically.⁶

Next, the plaintiff claims that the court improperly found her in contempt because the orders were ambiguous and vague. Specifically, the plaintiff argues that the original order and subsequent modification were ambiguous and vague because the...