Khan v. Hillyer

• Decision Date: 04 September 2012
• Docket Number: No. 18450.,18450.
• Citation: 49 A.3d 996,306 Conn. 205
• Court: Connecticut Supreme Court
• Parties: Maureen J. KHAN v. Jonathan K. HILLYER.

306 Conn. 205

49 A.3d 996

Maureen J. KHAN

v.Jonathan K. HILLYER.

No. 18450.

Supreme Court of Connecticut.

Argued April 20, 2012.

Decided Sept. 4, 2012.

John F. Geida, for the appellant (plaintiff).

Ellen C. Brown, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.

EVELEIGH, J.

The sole issue in this certified appeal in this child custody action is whether the Appellate Court properly dismissed the appeal of the plaintiff, Maureen J. Khan, from the trial court's order of contempt, due to the absence of a final judgment. The plaintiff appeals, following our grant of her petition for certification, from the judgment of the Appellate Court dismissing her appeal from an order of the trial court finding her in contempt for refusing to allow the defendant, Jonathan K. Hillyer, to visit their son in accordance with a previously established visitation schedule. The trial court's contempt order required the plaintiff to place the child in a supervised visitation program with the defendant and to pay for all expenses associated therewith. The plaintiff contends on appeal that the trial court's contempt order was a final judgment and, thus, immediately appealable. We agree with the plaintiff and, accordingly, reverse the judgment of the Appellate Court.

The following facts, found by the trial court, and procedural history, are relevant to our resolution of this appeal. The parties, who were never married, are the parents of a son born on March 10, 1999. The plaintiff filed an application for custody of the child in December, 2000. In 2002, the trial court, Devine, J., rendered a judgment that awarded the parties joint legal custody of the child. That court's judgment further provided that the plaintiff would maintain physical custody of the child and that the defendant would have the right to visitation at certain prescribed times.

The plaintiff began refusing to allow the defendant to visit the child in July, 2008, in contravention of the trial court's visitation schedule. The plaintiff claimed that she took this course of action because the defendant had sexually abused the child. The plaintiff's allegations of abuse led to numerous investigations by the Waterford police department and the department of children and families. These investigations did not substantiate the plaintiff's claims.

The defendant filed a motion for contempt on August 11, 2008, claiming that the plaintiff had repeatedly refused to let him visit the child in accordance with the visitation schedule established by the court. On August 13, 2008, the defendant filed a motion to open and modify the judgment with respect to custody and visitation.The motion to open was subsequently referred by the trial court to the family relations office for a complete evaluation of the child's custodial situation.

On January 9, 2009, the trial court issued a memorandum of decision finding the plaintiff in contempt of the visitation schedule. In making this finding, the trial court noted that the plaintiff had previously been found in contempt of the visitation schedule on three separate occasions and that, on each occasion, the plaintiff had refused to comply with a court order allowing the defendant “make up time” with the child. In light of this observation, the trial court determined that a similar sanction would be inadequate to deter the plaintiff from future violations of court orders. Accordingly, the trial court ordered that the family relations office enroll the defendant and the child in a supervised visitation program “as soon as possible,” and that the plaintiff pay for the expense of the program. The trial court stated that the supervised visitation program would allow trained professionals to observe the child's interaction with the defendant and would begin to repair the relationship between the defendant and the child. The trial court then continued the defendant's motion for contempt until February 2, 2009, the projected completion date of the evaluation by the family relations office, and reserved further decision until that time.

The plaintiff then appealed from the judgment of the trial court to the Appellate Court. After a hearing, the Appellate Court concluded that the absence of a final judgment deprived it of subject matter jurisdiction and, accordingly, dismissed the plaintiff's appeal. The plaintiff then filed a petition for certification, which we granted.¹Khan v. Hillyer, 293 Conn. 921, 979 A.2d 489 (2009).

On appeal to this court, the plaintiff claims that the Appellate Court improperly dismissed her appeal because the trial court's contempt order was a final judgment. Specifically, the plaintiff claims that this case is consistent with prior decisions of this court in which we have concluded that various family court orders are final judgments. The defendant responds that, because the trial court continued the matter, further proceedings could have affected the rights of the parties and, therefore, the contempt order was not a final judgment. We agree with the plaintiff.

As a preliminary matter, we set forth the standard of review. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding ... subject matter jurisdiction is a question of law ... [and, therefore] our review is plenary.” (Internal quotation marks omitted.) Sweeney v. Sweeney, 271 Conn. 193, 207, 856 A.2d 997 (2004).

“The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51–197a and 52–263; Practice Book § [61–1].... The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.... The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.... In some instances, however, it is unclear whether an order is an appealable final judgment. In the gray area between judgments which are undoubtedly final and others that are clearly interlocutory ... this court has adopted the following test, applicable to both criminal and civil proceedings: An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).” (Citations omitted; internal quotation marks omitted.) Solomon v. Keiser, 212 Conn. 741, 745–46, 562 A.2d 524 (1989).

In order to resolve this appeal, we must determine whether the trial court's contempt order satisfies either prong of Curcio. In resolving this question, we look to previous cases in which this court has applied the test applied in Curcio to facts similar to those in the present case. In Bryant v. Bryant, 228 Conn. 630, 632–33, 637 A.2d 1111 (1994), the defendant filed a motion for contempt, claiming that the plaintiff failed to make certain payments required under a marital dissolution decree. At a hearing on the defendant's motion, the plaintiff conceded that he had failed to pay $86,806.57 required by the dissolution decree and the trial court found an arrearage in that amount. Id. at 633, 637 A.2d 1111. The trial court granted the defendant's motion and held the plaintiff in contempt. Id. That court continued the matter until two weeks later, at which time the plaintiff was to pay $5000 to the defendant and file a proposed payment plan to satisfy the remaining arrearage. Id. The plaintiff then appealed to the Appellate Court, challenging the trial court's contempt finding. Id. at 634, 637 A.2d 1111. The Appellate Court affirmed the judgment of the trial court, and the plaintiff subsequently appealed to this court. Id.

On appeal, this court held that a civil contempt finding based upon an arrearage determined by the trial court resulting from the contemnor's failure to make payments under a dissolution decree was a final judgment. Id. at 636, 637 A.2d 1111. This court concluded that, because the contempt finding was based upon the plaintiff's financial obligations under a dissolution decree, the contempt finding “so substantially resolve[d] the rights and duties of the parties that further proceedings relating to the judgment of contempt [could not] affect them.” Id. This court in Bryant, therefore, made clear that a contemnor may appeal a contempt finding in advance of an incarceration order where the contempt finding is based upon an arrearage. Id. at 634 n. 5, 637 A.2d 1111.

We conclude that the policies and principles that informed our decision in Bryant apply equally to the facts of this case. As in Bryant, the contempt finding in the present case was accompanied by coercive action—an order to pay for the supervised visitation program. Furthermore, just as the contemnor in Bryant was required to make a payment on the arrearage at the next hearing, the plaintiff in the present case was required to pay for the supervised visitation program, which was to begin “as soon as possible....” Therefore, both contemnors suffered a specific financial loss as a result of complying with the contempt order.

The defendant contends, however, that Bryant is inapplicable because the plaintiff in that case was required to make payments on past due alimony, whereas the plaintiff in the present case has not been required to make payments to the defendant as part of the contempt order. The defendant claims, therefore, that the plaintiff in the present case is appealing from a bare finding of contempt without sanctions. We disagree. Although the plaintiff may not have been found in contempt specifically based upon the determination of an arrearage, the trial court explicitly required the plaintiff to be responsible for the costs of enrolling ...