Southern v. Southern

• Decision Date: 28 May 2013
• Docket Number: No. 33251.,33251.
• Court: Connecticut Court of Appeals
• Parties: ERIC S. v. TIFFANY S. Tiffany S. v. Eric S.

143 Conn.App. 1

68 A.3d 139

ERIC S.

v.TIFFANY S.^*

Tiffany S.

v.Eric S.

No. 33251.

Appellate Court of Connecticut.

Argued Jan. 22, 2013.

Decided May 28, 2013.

Steven R. Dembo, Hartford, with whom was P. Jo Anne Burgh, for the cross appellant (defendant in the first case, plaintiff in the second case).

LAVINE, ALVORD and HARPER, Js.

ALVORD, J.

The plaintiff, Eric S., commenced this action on May 14, 2009, against the defendant, Tiffany S.,¹ seeking a dissolution of the parties' marriage.² That same day, in a separate action, the defendant filed an application for relief from abuse against the plaintiff pursuant to General Statutes § 46b–15.³ The two actions became companion cases by order of the court issued on January 19, 2010.

Following a hearing, the court granted the defendant's application for a domestic restraining order on June 16, 2009. The restraining order was extended several times, as requested in subsequent motions filed by the defendant. On February 14, 2011, the defendant filed a motion for contempt against the plaintiff, claiming that he had violated the restraining order. The court heard testimony, found the plaintiff in contempt and ordered him to pay the defendant $7500 in attorney's fees. The plaintiff appealed from the court's finding of contempt, and the defendant filed a cross appeal. This court dismissed the plaintiff's appeal on October 18, 2011.⁴ On cross appeal, the defendant claims that the court improperly (1) characterized the plaintiff's violation of the restraining order as a civil contempt and (2) limited the choice of sanctions to those available upon a finding of civil contempt. We affirm the judgment of the trial court.

The following additional facts and procedural history are necessary for the resolution of the defendant's claims. The parties were married on August 23, 2003, and have one minor child. The domestic restraining order, granted after the hearing on June 16, 2009, ordered the plaintiff, inter alia, to refrain from threatening, harassing or stalking the defendant or their minor child, to refrain from having contact in any manner with the defendant or their minor child and to refrain from coming within 100 yards of the defendant or their minor child.⁵ Additionally, the order contained firearms restrictions that prohibited the plaintiff from possessing any pistol, revolver or any other firearm. The order also contained the following language: “[A]ny violation of this order constitutes a criminal violation of a restraining order which is punishable by a term of imprisonment of not more than five years, a fine of not more than five thousand dollars or both.... If you possess any pistol or revolver, or any firearm or electronic defense weapon, after you have had notice of such order and an opportunity to be heard, you will be guilty of criminal possession of a pistol or revolver or criminal possession of a firearm or electronic defense weapon ... punishable by a fine of up to five thousand dollars or imprisonment of up to five years or both....” (Emphasis added.)

A few days after the issuance of the domestic restraining order, a pawn shop employee contacted the Wethersfield police department and reported that the plaintiff offered him $10,000 to purchase a gun. The plaintiff was arrested and subsequently entered a plea of guilty to reckless endangerment in the first degree in criminal court. At about the same time as the pawn shop incident, the plaintiff went to their minor child's school in West Hartford and again was arrested for criminal violation of the restraining order. Because of these criminal incidents and arrests, the plaintiff was incarcerated for a short period of time.

The initial domestic restraining order would have expired on December 16, 2009, but the defendant filed subsequent motions to extend it for successive six month periods. On February 11, 2011, after the third requested extension had been granted by the court, the defendant filed a motion for contempt alleging that the plaintiff had violated the domestic restraining order. The motion for contempt related the incidents at the pawn shop and the child's school and, additionally, set forth various incidents in which the plaintiff's behavior was alleged to be threatening to the health, safety and well-being of the defendant and their minor child. The defendant claimed that the plaintiff continued in his attempts to initiate contact with her and requested that the court “punish him accordingly.” As sanctions, the defendant requested “an order of incarceration, referral to the criminal authorities, imposition of attorney's fees and costs and such other and further orders as are necessary to protect the defendant's safety.”

At the contempt hearing held on February 16 and March 2, 2011, the defendant's counsel told the court that it had a “plethora of [available] remedies” if it found the plaintiff in contempt of the domestic restraining order.⁶ Stressing the seriousness of the plaintiff's behavior, the defendant's counsel, at various times during the hearing, suggested that the court could: (1) impose house arrest; (2) have the plaintiff monitored with an electronic ankle bracelet; (3) refer the matter to the office of the state's attorney for criminal prosecution; (4) incarcerate the plaintiff; and (5) order the plaintiff to pay the attorney's fees of the defendant. The defendant's counsel argued that all of these sanctions could be imposed because § 46b–15 (g) provides that a court “may impose such sanctions as the court deems appropriate” if it finds a party has violated a domestic restraining order.

The court responded that a party's violation of a domestic restraining order could lead to both criminal prosecution and civil contempt, but the court questioned its authority to impose incarceration as a punishment in a civil contempt proceeding. The defendant's counsel stated: “[I]f you can do it for nonpayment of child support, incarceration, it would be a mockery of the restraining order, which is there for the protection of people, that you cannot do it in a case of this nature.” The court inquired: “Well, but the reason you can do it in child support is to allow the person to purge themselves of that. How—if you do it in a scenario like this, how does that individual purge himself of the contempt?” The defendant's counsel responded: “I'll have to think about that.”

The court found the plaintiff in contempt on February 16, 2011, but continued the hearing to March 2, 2011 to determine the appropriate sanctions for the plaintiff's violation of the restraining order. On March 2, 2011, the defendant's counsel submitted to the court a “Memorandum of Law Re: Contempt Remedies.” In the memorandum's concluding paragraph, the defendant requested that the court: (1) refer the matter to the family violence unit; (2) order the court support services division to make arrangements for the electronic monitoring of the plaintiff; (3) order the plaintiff to pay the attorney's fees of the defendant; and (4) refer the court's finding of contempt and its entire decision to the appropriate prosecutorial authorities and the plaintiff's probation officer.⁷ The remedies requested by the defendant were discussed on the record.

The court concluded as follows: “I'm going to produce this transcript. I'm not going to order his incarceration because, frankly, I don't think he holds the key to purging himself from whatever I incarcerate him for, and that's what [is] required in a civil contempt. So, he [is] not going to be incarcerated today.

“I am going to produce the transcript. I'm going to send it over to the probation officer.

“I'm going to indicate that it's the court's belief that a much more intensive domestic violence program is appropriate, that the family violence education program is not going to be adequate for this situation. And I will certainly indicate that it's been suggested that electronic monitoring might be more appropriate. And I'm going to leave it at that.... Oh, and I'm going to consider the affidavit on the attorney's fees and I will make an order on that.” ⁸

In her cross appeal, the defendant now challenges the adequacy of the sanctions imposed by the court for the plaintiff's violation of the domestic restraining order. Essentially, she claims that the court improperly treated his contempt as a civil contempt and improperly limited the sanctions to civil contempt remedies.

I

The defendant's first claim is that a violation of a § 46b–15 domestic restraining order should not be characterized as a “purely civil contempt.” She argues that because the contemptuous behavior in this case subjected the plaintiff to criminal prosecution, the contempt proceedings should be considered quasi-criminal in nature.⁹ The defendant cites cases from otherjurisdictions in support of this position because there is no case law in Connecticut holding that a § 46b–15 contempt hearing is a quasi-criminal proceeding.

The court expressly stated that it considered the plaintiff's violation of the domestic restraining order to be a civil contempt. A court's characterization of a contempt as civil is subject to a de novo review on appeal. Monsam v. Dearington, 82 Conn.App. 451, 456 n. 8, 844 A.2d 927 (2004). “Our case law classifies civil contempt as conduct directed against the rights of the opposing party ... while criminal contempt consists of conduct that is directed against the dignity and authority of the court.” (Internal quotation marks omitted.) In re Jeffrey C., 261 Conn. 189, 197, 802 A.2d 772 (2002). In the present case, the plaintiff violated a restraining order designed to protect the defendant and the parties' minor child. His behavior was directed at those individual parties. Our case law has never treated contempt, under such circumstances, to be criminal or quasi-criminal in nature. To the contrary, our Supreme Court recently made a distinction between a criminal protective order issued in...