Perry v. Perry

Decision Date29 June 1992
Docket NumberNo. 14404,14404
Citation611 A.2d 400,222 Conn. 799
CourtConnecticut Supreme Court
PartiesMary Jane PERRY v. Jon PERRY.

Berdon, J., dissented and filed opinion.

Sandra P. Lax, Bridgeport, for appellant (defendant).

Joseph X. Dumond, Jr., Asst. Atty. Gen., with whom were Donald M. Longley, Asst. Atty. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., and Wilbur Ward Dinegar, Asst. Atty. Gen., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDON and BERDON, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is whether the Family Support Magistrate's Act, General Statutes §§ 46b-231 through 46b-235, unconstitutionally infringes the powers of the judiciary insofar as the act gives family support magistrates the power to incarcerate persons found to be in contempt of orders for child and spousal support. A family support magistrate found the defendant, Jon Perry, in arrearage in his alimony and support obligations to his former wife, the plaintiff, Mary Jane Perry, and ordered the defendant incarcerated until he paid a purge amount of $7600. After a week's incarceration, some further payments and further promises to pay, the defendant was released. After his release, the defendant appealed to the Superior Court, which affirmed the decision of the magistrate. The defendant took a further appeal to the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm.

For the purposes of this appeal, it is undisputed that the defendant has an obligation to pay $500 weekly in unallocated alimony and child support to the plaintiff as a result of a 1987 decree dissolving their marriage. In September, 1990, the state of Connecticut, on behalf of the plaintiff, applied for a contempt order because of an alleged arrearage of $8700. After various intervening proceedings, in which the defendant made some payments in an attempt to reduce his arrearage and unsuccessfully moved to modify his financial obligation, the family support magistrate heard the motion for contempt on May 3, 1991. On May 7, 1991, the magistrate granted the motion, found an arrearage of $17,800 and ordered the defendant to pay $10,000 towards the arrearage on or before June 13, 1991. 1

On June 13, 1991, finding that the defendant had paid only $2400, the family support magistrate found him in contempt of the May 7 order. The magistrate ordered his incarceration and required that the defendant pay $7600 in order to purge himself of the contempt. After the defendant had been incarcerated for one week, the magistrate held a new hearing that led to the release of the defendant upon his payment of another $2600 and his promise to pay, by July 5, 1991, an additional $3000 toward the arrearage and $1000 toward current support.

The defendant then appealed to the Superior Court, challenging the procedural and substantive bases for the decision reached by the family support magistrate and the constitutionality of the magistrate's authority to enforce an order of contempt by incarceration. The trial court rejected all of these contentions and affirmed the decision of the family support magistrate.

The present appeal raises the following issues concerning the validity of the defendant's incarceration for contempt. As a preliminary matter, the state urges us not to review the defendant's claims on their merits on two grounds, mootness and failure to take a timely appeal. The defendant urges us to overturn the contempt order on the nonconstitutional ground that the family support magistrate did not make a sufficient finding of the defendant's ability to pay the amount ordered. Finally, the defendant contends that the family support magistrate's exercise of his statutory power to hold the defendant in contempt violates two distinct constitutional principles, separation of powers and due process. We conclude that the defendant's appeal is properly before this court as a procedural matter but that it is to be rejected as a substantive matter.

I

The state suggests two procedural impediments to our plenary consideration of the constitutional issues raised by the defendant. The state maintains that issues concerning the validity of the defendant's incarceration: (1) have become moot because the defendant was released from incarceration before his appeal to the Superior Court and is not currently subject to a contempt order; and (2) should have been raised by a timely appeal from the family support magistrate's order of May 7, 1991, finding the defendant in contempt. We are unpersuaded.

A

The state claims that this court lacks jurisdiction to consider the merits of the defendant's appeal because no contempt proceedings are currently pending against the defendant, who is no longer incarcerated. "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Internal quotation marks omitted.) Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). We have also held, however, that "where the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, it may be 'capable of repetition, yet evading review.' " Id., at 572, 499 A.2d 1158. "In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also '(1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state's penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future.' Shays v. Local Grievance Committee, supra, [at] 572-73 ...." Moshier v. Goodnow, 217 Conn. 303, 307, 586 A.2d 557 (1991).

In this case, all of these mitigating factors are present. The public importance of a question raising the constitutionality of a statute cannot be doubted. The state's ongoing program to monitor and enforce support and alimony orders will be affected by our decision on the validity of a family support magistrate's statutory authority over contempt orders. Finally, this defendant can plausibly maintain that there is a distinct likelihood that in the future he may again find himself involved in a controversy concerning his support obligations. This appeal, therefore, is not moot.

B

The state maintains, in the alternative, that the defendant's constitutional claims are not properly before us because the defendant could have avoided the risk of incarceration, and hence the alleged invasion of his constitutional rights, by filing a timely appeal from the family support magistrate's May 7 finding of contempt. We have repeatedly held that anyone who challenges the constitutionality of a statute must prove that the statute has infringed a constitutionally protected right so as to cause him immediate harm, or an immediate threat of harm, in the circumstances of his particular case. DiBerardino v. DiBerardino, 213 Conn. 373, 383, 568 A.2d 431 (1990), and cases therein cited.

The defendant did not, however, have the opportunity to seek an earlier judicial review of the contempt order. General Statutes § 46b-231(n)(1) permits an appeal to the Superior Court only when "[a] person ... is aggrieved by a final decision of a family support magistrate...." The order holding the defendant in contempt was not a final judgment. "This is so because no sanction or punishment had yet been imposed and, therefore, there had been no final judgment disposing of the matter. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see Barbato v. J. & M. Corporation, 194 Conn. 245, 247-48, 478 A.2d 1020 (1984). No final judgment existed in this contempt proceeding until the court decided ... not to change its earlier ruling but proceeded to final adjudication and imposed the sanction...." In re Dodson, 214 Conn. 344, 361, 572 A.2d 328, cert. denied, --- U.S. ----, 111 S.Ct. 247, 112 L.Ed.2d 205 (1990). The defendant could not, therefore, have taken an appeal to the Superior Court in advance of his incarceration.

II

Although the defendant's appeal is properly here, we will not reach the constitutional issues that he raises if there are nonconstitutional grounds upon which to overturn the judgment of the trial court affirming the family support magistrate's order of incarceration for contempt. We must first consider, therefore, the merits of the defendant's nonconstitutional claim that the magistrate should not have incarcerated him without making a specific finding, on the record, that he had a present ability to pay the $10,000 as ordered.

In the contempt proceedings before the family support magistrate, the magistrate acknowledged that inability to pay an order is a defense to a charge of contempt. See Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988); Mays v. Mays, 193 Conn. 261, 264, 476 A.2d 562 (1984); Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). These cases also hold, however, that the defendant has the burden of proof on this issue, and the magistrate expressly found that the defendant had not sustained his burden. When he issued the contempt order on May 7, 1991, the magistrate made two express findings about the defendant's ability to pay. First, the magistrate noted that the defendant had admitted having been enriched by recent Lotto winnings in the amount of $10,000, which the defendant had chosen to disburse without regard for his economic responsibilities to his children and former spouse. Second, the magistrate found that the defendant was engaged in a viable carting and haulage business that had assets and was generating revenues. In light of these express findings, on...

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