Mulholland v. Mulholland

• Decision Date: 04 May 1993
• Docket Number: No. 11225,11225
• Court: Connecticut Court of Appeals
• Parties: Mary-Anne MULHOLLAND v. James MULHOLLAND.

Page 379

624 A.2d 379

31 Conn.App. 214

Mary-Anne MULHOLLAND v. James MULHOLLAND.

No. 11225.

Appellate Court of Connecticut.

Argued Dec. 4, 1992.

Decided May 4, 1993.

Lavery, J., dissented and filed opinion.

James C. Mulholland, pro se.

Mary-Anne Ziewacz Mulholland, pro se.

Before LAVERY, FREDERICK A. FREEDMAN and SCHALLER, JJ.

FREDERICK A. FREEDMAN, Judge.

The sole question presented by this appeal is whether a trial court may render a judgment of contempt after an appellate court has reversed the underlying order where the acts constituting the contempt occurred prior to the reversal. ¹ We conclude that the sanction of contempt may be imposed on a party for the willful failure to pay any sums due under an order of child support that is on appeal at the time of the nonpayment, regardless of whether the sanction is imposed before or after the appellate reversal. This conclusion is dictated by our rules of practice, our case law and by sound considerations of public policy.

The following facts are pertinent to the disposition of this appeal. The parties' marriage was dissolved by order of the trial court on January 16, 1991. There were two minor children issue of the marriage, Colin born September 28, 1984, and Rachel born November 5, 1986. The issue of custody of the two minor children and all financial matters were reserved for trial at a later date. In March and April of 1991, a trial was held on the reserved issues. On April 23, 1991, the trial court rendered its oral decision. The court ordered that the parties would have joint custody of the minor children and that their primary residence was to be with the plaintiff. The court ordered the defendant to pay $260 per week for the support of Rachel and $100 per week for the support of Colin. There had been no pendente lite support orders. The defendant was also ordered to pay one half of any substantial expenses incurred by the plaintiff for "day care, summer camp, cultural or athletic enrichment programs, educational enhancement, private schooling or other similar services." The defendant was also ordered to pay one half of "the cost of [medical] insurance for the minor children as well as [one half] of any unreimbursed medical, dental, orthodontic, prescriptive, optical, mental health or other health related expenses of the minor children."

The defendant immediately appealed to this court from the April 23 orders of the trial court. On May 3, 1991, the defendant sought a stay of the orders of child support from the trial court. On June 11, 1991, the trial court denied the stay. The defendant filed no further applications for a stay of execution, nor did he seek review from this court of the denial of the stay.

The defendant made the child support payments as ordered through late November or early December of 1991. He then stopped making payments. On December 30, 1991, the plaintiff filed a motion for contempt in the trial court. This motion was filed while the defendant's appeal from the trial court's order of April 23, 1991, was pending before this court. Oral argument on the defendant's appeal was heard by this court on December 6, 1991.

On January 14, 1992, the trial court began its hearing on the plaintiff's motion for contempt. No orders were entered at that time, although the trial court warned the defendant that he was risking a judgment of contempt, and ordered him to make the payments. On February 11, 1992, this court reversed the trial court's decision regarding the financial orders, and remanded the case for a new hearing on all financial issues. Mulholland v. Mulholland, 26 Conn.App. 585, 602 A.2d 1054 (1992). On March 5, 1992, the trial court again took up the contempt motion. It found that there was an arrearage of $6175 as of the date of this court's reversal of the underlying order and found the defendant to be in contempt of court. The trial court ordered the defendant incarcerated until he purged the contempt by paying the sum of $6175 to the plaintiff. On the following day, the defendant purged his contempt and was released from incarceration. This appeal followed. ²

The resolution of the issue presented by this appeal turns, first and foremost, on the enforceability of a child support order pending appeal and the effect that appellate reversal has on the duty to have made such payments in a timely fashion. We begin our analysis of these issues by examining Practice Book § 4046. ³ Generally speaking, the filing of an appeal will automatically stay any proceedings to enforce or carry out a judgment until the final determination of the cause. Practice Book § 4046. No automatic stay, however, applies to orders concerning periodic alimony or support. Id. In such cases, if the obligor wants to avoid payment, he or she must make an application for a stay of the order pending appeal. Practice Book § 4047.

The provisions of Practice Book § 4046 reflect judicial recognition of the needs of children and the public policy considerations involved. The law has universally recognized that the parent-child relationship and the support obligations created within it are unique. See Buchholz's Appeal from Probate, 9 Conn.App. 413, 418, 519 A.2d 615 (1987); Weisbaum v. Weisbaum, 2 Conn.App. 270, 272-73, 477 A.2d 690 (1984). The failure of a marital relationship often has profound effects on the parties and their children and may, as well, affect society in general. Where the need for child support is established and ordered by the court, it is of the utmost importance for the welfare of the child that such payments be made in a timely fashion. It is also in the interest of society that the child be supported by those obligated to support the child and that the child not be required to seek public assistance to satisfy those needs unless otherwise necessary. Accordingly, § 4046 mandates that, unless stayed by the court, periodic alimony and child support orders remain in effect and unabated during the pendency of an appeal. ⁴

For these reasons, the defendant's reliance on Reilly v. State, 119 Conn. 217, 220-21, 175 A. 582 (1934), Woodruff v. Bacon 35 Conn. 97, 102 (1868), and Allen v. Adams, 17 Conn. 67, 73 (1845), is misplaced. While those cases do stand for the proposition that appellate reversal "restore[s] the parties to the position in which they were before the judgment was rendered"; Reilly v. State, supra, 119 Conn. at 221, 175 A. 582; that common law principle is not controlling in the context of child and spousal support orders in light of § 4046.

Before starting our analysis of the law of contempt as it applies to this case, it is important to note that in the contempt proceedings that are the subject of this appeal, which were initiated before the support order was vacated, the plaintiff sought only to collect unpaid support installments that became due and payable prior to the judgment of this court vacating the support order. The plaintiff did not seek to collect by way of these contempt proceedings, nor could she do so, any child support that became due after the support order was vacated by this court. Because the original child support order was no longer enforceable as a judicial decree after this court's reversal of the order on February 11, 1992, there could be no contempt for the nonpayment of child support under that order occurring after that date. See Calway v. Calway, 26 Conn.App. 737, 744, 603 A.2d 434 (1992) (party cannot be held in contempt for noncompliance with nonexisting order). ⁵

In addition, a distinction must be made between an erroneous order and a void order. In Mulholland v. Mulholland, supra, we reversed only the financial orders of the trial court. In that appeal, it was readily apparent that, at the time of the dissolution, the trial court had jurisdiction of the subject matter and the parties. Because the court had jurisdiction to dissolve the marriage, it also had, incident thereto, the jurisdiction to order child support. See General Statutes § 46b-84(d). Thus, the judgment of dissolution and the financial orders were valid until and unless overturned on appeal. An erroneous order of child support is as binding as one that is correct until set aside or corrected in a manner provided by law. Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985). This distinction between a court order that is void and one that is merely erroneous is critical to the issue presented by this appeal.

Contempt proceedings are a proper means of enforcing a court order of child support. A willful failure to pay court ordered child support as it becomes due constitutes indirect civil contempt. Duve v. Duve, 25 Conn.App. 262, 269, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991); see General Statutes § 46b-215. In the absence of a stay, the trial court continues to have jurisdiction to enforce its orders during an appeal from those orders. Hartford Federal Savings and Loan Assn. v. Tucker, 192 Conn. 1, 7, 469 A.2d 778 (1984).

In Cologne v. Westfarms Associates, supra, 197 Conn. at 147-49, 496 A.2d 476, our Supreme Court held that contempt proceedings may be used to enforce a court order that is later reversed on appeal. " 'The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril.' United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 91 L.Ed. 884 (1947). '[A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.' Id., [at] 293 ; see also W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766-67, 103 S.Ct. 2177, [2184] 76 L.Ed.2d 298 (1983); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 276-77, 471 A.2d 638 (1984)." Id., 197 Conn. at 147, 496...