Mulholland v. Mulholland

624 A.2d 379, 31 Conn. App. 214, 1993 Conn. App. LEXIS 217

• Court: Connecticut Appellate Court
• Decided: May 4, 1993
• Docket: 11225
• Status: Published

Opinions

Freedman, J.

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. Weisbamn, 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, 221; 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 & Loan Assn. v. Tucker, 192 Conn. 1, 7, 469 A.2d 778 (1984).

In Cologne v. Westfarms Associates, supra, 147-49, 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., 293; see also W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766-67, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 276-77, 471 A.2d 638 (1984).” Id., 147. “[Tjhere is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid.” Id., 148.

The defendant acknowledges in his brief that “had [he] been adjudicated to have been in contempt prior to and not subsequent to the reversal of the underlying judgment, Cologne would indeed be dispositive . . . .” (Emphasis in original.) He attempts to distinguish Cologne in his brief, however, by emphasizing that “[i]n this case . . . the reversal of the underlying judgment was prior to the contempt hearing.” (Emphasis in original.) The defendant’s arguments to the contrary notwithstanding, we believe that this is a distinction without a difference in light of the fact that in this case an appeal does not automatically stay the enforcement of a child support order. Moreover, our reading of Cologne leads us to the conclusion that an intervening appellate reversal of an underlying judicial mandate will not affect the contempt powers of the trial court as to violations of that mandate that occurred prior to the reversal.

As previously discussed, in Cologne our Supreme Court concluded that the trial court had the authority to hold the defendants in contempt notwithstanding the ultimate reversal of the underlying court order. Id., 147-49. The court, however, reversed the trial court’s finding of contempt because it was not based on competent evidence. Id., 149-57. Under such circumstances, a remand for a proper evidentiary hearing would normally be in order. The Cologne court, however, did not direct any further proceedings. Id., 157. Significantly, the reason why no further proceedings were directed was not because those proceedings would take place after the appellate reversal of the underlying order. The Cologne court did not suggest any such bar to further proceedings. Rather, the court reasoned that, under the circumstances of the case, the purposes of civil contempt could not be advanced by such further proceedings because the defendants had complied with the underlying court order from the day after they were found in contempt through the date of the court’s decision reversing the underlying order. The Cologne court recognized that in order to effectuate the purposes of civil contempt, the contemnor should be able to obtain release from the sanction imposed by the court through compliance with the judicial decree. Id. Without any need to compel compliance with the injunction at issue in Cologne, then, further contempt proceedings made no sense. Thus, Cologne does not stand for the proposition that the intervening appellate reversal poses an impediment to further proceedings on the motion for contempt.

Contempt proceedings after appellate reversal of the underlying court order were approved in Rivenbark v. Southmark Corporation, 93 N.C. App. 414, 378 S.E.2d 196 (1989). There, the court affirmed a finding of contempt notwithstanding the fact that it simultaneously found the underlying order that was violated to be erroneous. The Rivenbark court, however, vacated the sanction imposed for that contemptuous conduct because the trial court had not given proper consideration to sanctions less drastic than that imposed. The court then remanded the matter for additional findings of fact regarding the appropriate contempt sanction. The result in Rivenbark, then, supports the imposition of a sanction for willful disobedience of a court order after the reversal of that court order.

In light of Cologne and Rivenbark, we see no reason why the timing of the contempt adjudication alone should affect the trial court’s ability to remedy disobedience to its orders when the disobedience occurred while the orders were in full force and effect. Here, the defendant chose to disobey a lawful, although subsequently vacated, court order. The defendant concedes, as he must, that under Cologne, he could have been held in contempt any time prior to February 11, 1992. Because the trial court proceedings were not completed by that date, however, he should not be allowed to escape the consequences of his earlier contemptuous conduct. The practical effect of the defendant’s argument would be that if an obligor can avoid the service of a contempt citation or otherwise delay the hearing of the contempt proceedings while an appeal is pending, and if that appeal is ultimately successful, the obligor has circumvented the mandate of Practice Book § 4046 and undermined the authority of our courts to remedy such noncompliance. Under these circumstances, “[¡judgments could be accepted or rejected at whim with impunity and would be essentially advisory in nature ... resulting in a discomfiture of the judicial process.” State ex rel. Girard v. Percich, 557 S.W.2d 25, 36 (Mo. App. 1977).

In addition to frustrating important institutional concerns of our courts, a result different from that reached by us today would also frustrate clearly defined public policy regarding the parental obligation to support minor children. Both state and national policy has been, and continues to be, to ensure that all parents support their children and that children who do not live with their parents benefit from adequate and enforceable orders of child support. Turner v. Turner, 219 Conn. 703, 713-20, 595 A.2d 297 (1991); 42 U.S.C. § 651 et seq. (Part D of Title IV of the Social Security Act). Child support is now widely recognized as an essential component of an effective and comprehensive family income security strategy. See generally A. Houseman, “Poverty Law Developments and Options for the 1990s,” 24 Clearinghouse Review 2, 5-7 (1990); P. Roberts, “Child Support and Beyond: Mapping a Future for America’s Low-Income Children,” 22 Clearinghouse Review 594 (1988). As with any income source, the effectiveness of child support in meeting the needs of children is, of necessity, increased when payments are made regularly and without interruption.

The defendant seeks our approval of his decision to avoid his parental duty of timely support as ordered by the trial court, thus impairing the income flow to his family unilaterally and with impunity. We will not approve such conduct. “[TJhere is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid.” Cologne v. Westfarms Associates, supra, 148.

The judgment is affirmed.

In this opinion Schaller, J., concurred.

1 In his preliminary statement of the issues, the defendant set forth six issues to be presented in this appeal. His statement of the issue in his appeal brief raises only one issue: “Did the trial court err in finding the defendant in civil contempt and in ordering payment of $6,175.00 in order to purge the contempt when the Appellate Court had previously reversed the underlying judgment?” This single issue statement replaces and supersedes the preliminary statement of issues. Practice Book § 4065 (a).

In his appeal brief, the defendant properly includes a statement of facts. Practice Book § 4065 (c). In footnotes in this portion of the brief, however, the defendant challenges the trial court’s calculation of his child support arrearage and the amount he was ordered to pay in order to purge his contempt. Because this claim is not properly presented in the argument portion of his brief, we will not address it. Practice Book § 4065 (d); State v. Grant, 221 Conn. 93, 107 n.13, 602 A.2d 581 (1992); State v. Reddick, 15 Conn. App. 342, 343, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988).

2 Notwithstanding the fact that the defendant has purged himself of the contempt and has been released from incarceration, this appeal is not moot. Sgarellino v. Hightower, 13 Conn. App. 591, 593-95, 538 A.2d 1065 (1988).

3 Practice Book § 4046 provides in pertinent part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced; but if the judge who tried the case is of the opinion that an extension to appeal is sought or the appeal is taken only for delay or that the due administration of justice so requires that judge may at any time, upon motion and hearing, order that the stay be terminated. This section shall not apply to actions concerning attorneys pursuant to chapter 2, to periodic alimony and support orders, as well as to custody or visitation orders in domestic relations matters brought pursuant to chapter 17, to criminal matters brought pursuant to chapter 22 through 30 or to juvenile matters brought pursuant to chapters 31 through 40.” (Emphasis added.)

4 An obligor under a child or spousal support order can, pending appeal, seek a stay in the trial court of the child support order, or any portion thereof, pursuant to Practice Book § 4047. If the trial court refuses to grant such a stay, the obligor can seek appellate review of the denial of a stay pursuant to Practice Book §§ 4049 and 4053. These rules serve to ameliorate any harsh implications that might be caused where a trial court’s child or spousal support order is so unreasonable that the obligation it imposes works a severe hardship on an obligor such that a partial or complete granting of a stay will more fairly strike an equitable balance between the parties with respect to their respective child support obligations pending appeal.

It is important to note that the defendant in this case sought such a stay. The stay was denied by the trial court. He did not seek appellate review of the denial.

5 The dissent concludes by stating “[t]he issue here concerns solely the power of the Superior Court to hold someone in contempt of court for the failure to obey an order that has been reversed.” This statement overly simplifies the issue. The issue before the trial court on March 5 was whether the defendant failed to comply with the order before it was reversed and while it was still in full force and effect, not whether he failed to comply with it after it was reversed.