Mays v. Mays

• Citation: 476 A.2d 562,193 Conn. 261
• Parties: Denise M. MAYS v. David E. MAYS.
• Decision Date: 22 May 1984
• Court: Connecticut Supreme Court

Page 562

476 A.2d 562

193 Conn. 261

Denise M. MAYS v. David E. MAYS.

Supreme Court of Connecticut.

Argued March 13, 1984.

Decided May 22, 1984.

Michael Graham, Hartford, for appellant (defendant).

John P. Febbroriello, Torrington, for appellee (plaintiff).

Paul R. Phalen, Torrington, for minor child.

Before HEALEY, PARSKEY, SHEA, GRILLO and BIELUCH, JJ.

SHEA, Associate Justice.

In this post-dissolution of marriage proceeding the trial court found that the defendant was in arrears by $5220 on his child support payments, found him in contempt and ordered that he be jailed until he "purges himself." In his appeal the defendant claims that the court erred (1) in failing to grant his motion to modify the support payments, in finding him in contempt and in punishing him by imprisonment in view of his inability to comply with the order; (2) in excluding evidence that the motive of the plaintiff wife in pursuing the contempt proceeding was to coerce him into surrendering his parental rights to the child; and (3) in awarding counsel fees and the costs of transcripts to defend the appeal. We find error only in the order of confinement and the award of counsel fees.

The marriage of the parties was dissolved on October 12, 1979 and the plaintiff wife was awarded custody of their minor child, who had been born on September 14, 1977. The defendant was ordered to pay thirty dollars per week for support of the child and five dollars per week on an arrearage which had accumulated prior to the judgment of dissolution. ¹

At the hearing on the plaintiff's motion for contempt on February 14, 1983, both parties appeared with counsel. The plaintiff testified that she had received no payments of child support since the dissolution of the marriage and that the arrearage was $5220. The defendant admitted that he had a "considerable arrearage" but claimed to have made some payments. Although some of these payments were said to have been made by check, he was unable to produce any cancelled checks to verify them. He also testified that the plaintiff had indicated that she was unconcerned about the support payments and "generally refused the offers I made to her."

The defendant testified that since the dissolution of marriage he had been employed at several different companies earning wages varying from $135 to $225 per week, that he was unemployed for about six months when he was receiving psychiatric care, that he worked part time from May to October, 1982, when he entered a community college as a student, and that he had continued to work part time while attending college, earning wages of about fifty-five dollars per week. He said he was attempting to find a full time job but had not yet been successful. He also claimed that he could not pay the support order of thirty-five dollars per week out of his present earnings. He would not oppose a wage execution. He explained his failure to pay support while he was employed as attributable to other bills and various living expenses. He admitted receiving $110 per week as unemployment compensation during part of the period of his unemployment.

The defendant's financial affidavit indicated that at the time of the contempt hearing his total income from all sources, including student financial aid, was $59.75 per week; that he owned a 1972 Pontiac automobile valued at $100, and camera equipment and furniture with a combined value of $400; that his indebtedness, in addition to his obligation for child support, was $6884; and that his expenses, excluding the thirty-five dollar weekly support order or any debt payments, were $118 per week, almost twice his weekly income. No other evidence relating to the defendant's financial situation at that time was presented.

In rebuttal, the plaintiff repeated that she had received no payments of support from the defendant and that she had never waived such payments.

The trial court concluded that the defendant had completely flouted the support order by making no substantial payments for four years when he had been employed or receiving unemployment compensation during most of the period. The arrearage was found to be $5220, the defendant was held in contempt and he was committed to the custody of the commissioner of corrections "until such time as the defendant purges himself."

I

"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." Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974); Clark, Domestic Relations § 15.3. The defendant relies upon this principle, but to no avail. The evidence amply supports the finding of the court that the defendant, without excuse, had wholly disregarded the support order by making no substantial payment for four years. His claim that the plaintiff had waived the support payments was disputed and this factual issue was resolved against him. The court was not bound to accept his testimony rather than that of the plaintiff. "The trial court, in weighing the credibility of testimony, could conclude that other evidence was more probative." Stanton v. Grigley, 177 Conn. 558, 563, 418 A.2d 923 (1979).

A contempt adjudication may be reviewed to determine (1) whether the conduct for which the penalty was imposed could constitute a contempt and (2) whether the punishment inflicted was authorized. Friedlander v. Friedlander, 191 Conn. 81, 84-85, 463 A.2d 587 (1983); Leslie v. Leslie, 174 Conn. 399, 402-403, 389 A.2d 747 (1978); State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960). It is clear that the court could reasonably have found the defendant's failure to make any substantial payments upon the support order for four years was inexcusable and constituted a contempt. The punishment imposed of incarceration "until such time as the defendant purges himself," however, would exceed the court's authority under the circumstances of this case if it is construed to mean that the defendant must remain in confinement until such time as the arrearage of $5220 is paid. Such an interpretation ² of the order would appear to deprive the defendant of liberty for his lifetime, since the only evidence presented on the subject indicated that his assets were minimal and that he had no available means of paying the large sum required to discharge his obligation. Nothing in the record warrants an assumption that his financial situation was likely to improve during his imprisonment.

"[A] contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public." McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939); McTigue v. New London Education Assn., 164 Conn. 348, 352, 321 A.2d 462 (1973). The sanction of confinement until purged imposed by the trial court was apparently intended to coerce compliance with the support order for the benefit of the plaintiff and the child and not as a punishment to uphold the dignity of the court. Tobey v. Tobey, 165 Conn. 742, 745, 345 A.2d 21 (1974); McTigue v. New London Education Assn., supra, 352-54. In civil contempt the punishment must be conditional and coercive, and may not be absolute. Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). "In criminal contempt the sanction is punitive in order to vindicate the authority of the court." Id. This contempt proceeding, therefore, must be classified as civil rather than criminal.

"[I]n civil contempt proceedings, the contemnor must be in a position to purge himself." 17 Am.Jur.2d, Contempt § 4; see Morelli v. Superior Court of Los Angeles County, 1 Cal.3d 328, 332, 82 Cal.Rptr. 375, 461 P.2d 655 (1969). Otherwise the sanction imposed would cease to be remedial and coercive but would become wholly punitive in actual operation. The order of confinement until purged entered in this case does not specify what the defendant must do in order to purge himself, except to pay the entire $5220 arrearage, a feat which the evidence does not even remotely suggest he was able to perform. The case, therefore, must be remanded to the trial court so that the court may set forth in the order the conditions under which the defendant may be deemed to have purged himself and to be entitled to his release from imprisonment. Those conditions, of course, must be reasonably within the power of the defendant to meet. An order of confinement upon an adjudication of civil contempt must provide the contemnor with the key to his release in terms which are not impossible for him to satisfy.

With respect to the claim of error relating to the failure of the trial court to grant the defendant's motion to modify the support order, the record indicates that the motion has not been acted upon. "Upon an application for a modification of an award of ... support of minor children, filed by a person who is then in arrears under the terms of such award, the court shall, upon hearing, ascertain whether such arrearage has accrued without sufficient excuse so as to constitute a contempt of court, and, in its discretion, may determine whether any modification of current ... support shall be ordered prior to the payment, in whole or in part as the court may order, of any arrearage found to exist." Practice Book § 464(a). The court did not abuse its discretion in deferring action on the motion for modification until the contempt proceeding had been resolved. Furthermore, neither in his appeal nor in his preliminary statement of issues, as required by Practice Book § 3012(a), has the defendant made any reference to the failure of the court to act upon his motion to modify.

II

The ruling upon evidence which the defendant claims as error occurred during cross-examination of the plaintiff when the defendant sought to inquire whether she and her present husband had instituted legal proceedings for termination of the defendant's...