Casiraghi v. Casiraghi, 200 Conn. App. 771 (2020) (contempt & willfulness; ability to pay).
Officially released October 13, 2020.
In Short: inability to pay is a defense to a finding of contempt and must be considered and addressed by the trial court when raised; the chronology of events matters.
The parties were married in 1997 and divorced by agreement in 2012. Husband had owned a very successful business that required him to travel substantially. The separation agreement provided, inter alia, that (1) the parties would continue to co-own the marital residence for a period of time and share certain expenses thereon, (2) Husband would pay a lump sum property distribution of $485,950 via installments over a period of time with certain terms for suspension of obligations while Wife resided in the home, (3) Husband was prohibited from investing in new ventures unless he was current in certain obligations, and (4) Husband would pay unallocated support for a period of twelve years with certain step-downs, starting at $200,000 per year.
At the time of dissolution, Husband was in good health. Thereafter he suffered some decline, the recovery from which affected his ability to travel for work. In 2016 Husband filed a motion seeking a downward modification of his unallocated order and seeking an extension on the length of time to repay his lump sum property distribution. Wife thereafter filed several motions for contempt regarding Husband’s failure to keep up with various obligations. Wife filed an objection to Husband’s motion to modify support arguing that the separation agreement only provided for modification of support in the event “medical catastrophe” whereas Husband had only suffered a medical decline and arguing that Husband continued to participate in CrossFit and ice hockey. Wife further argued that the trial court lacked authority to modify the terms of the property settlement. Husband filed an objection to Wife’s motion for contempt, arguing that he had paid the required portions of the property settlement while Wife was still residing in the marital residence. Wife filed another motion for contempt arguing that Husband had violated the separation agreement by investing in a new business while in arrears of his obligations.
The trial court heard three days of evidence on the “plethora” of motions. The trial court determined that the separation agreement prohibited modification of the unallocated support orders except under three very limited sets of circumstances, only one of which was implicated, and that Husband’s health issues did not rise to the required level for modification. The trial court also denied Husband’s motion in which he sought relief from the property award, which would constitute an impermissible modification. The trial court granted Wife’s motion for contempt regarding unallocated support, finding the orders to be clear and unambiguous and the breach to be willful, with an arrearage of $213,333. The trial court did not state the nature of the evidence of willfulness. The trial court granted the motion for contempt regarding the lump sum property award, with an arrearage of $145,785 plus interest of $137,685. The trial court again did not state the nature of the evidence regarding willfulness and did not address Husband’s argument regarding the alleged suspension of his obligations while Wife remained in the marital residence. The trial court denied Wife’s motion for contempt as to the investment in the CrossFit franchise, but found that Husband had violated the order without addressing Husband’s argument that he had been current on his obligations at the time of the investment. The trial court found a total arrearage in excess of $500,000, ordered monthly instalments, and ordered $75,000 in legal fees in connection with the contempt.
Husband filed a motion for reargument, which was denied without comment. The Appellate Court ordered an articulation from the trial court following oral argument, as to the trial court’s findings as to ability to pay, and the facts it relied upon. The trial court articulated that it made no specific finding as to the Husband’s ability to pay the unallocated order.
Husband appealed arguing that the trial court improperly (1) found him in willful contempt without making any finding regarding his assertion of inability to pay, and (2) found his investment in the CrossFit franchise to be a violation of the separation agreement, despite the fact that he was current on his obligations at the time he made it.
Husband unquestionably raised the defense of ability to pay due to drop in income due to health problems. There was no evidence offered rebutting Husband’s testimony and exhibits regarding his diminished income and no indication that the trial court failed to credit the testimony. The Appellate Court found that the trial court’s failure to give consideration to whether Husband had the ability to pay his obligations was clearly erroneous and reversed and remanded for a new hearing to identify any arrearage that may be owed and to craft new remedial orders.
The terms of the separation agreement were determined to be clear and unambiguous as to Husband’s ability to undertake new ventures. The only evidence before the trial court was that the investment was made well before Husband fell behind on his obligations. The Appellate Court held that it was clearly erroneous for the trial court to determine that Husband violated the orders by making the investment at a time when he had still been current on his payments.
The decision was reversed and remanded with respect to the two motions for contempt, the related remedial orders, and the finding that Husband breached the separation agreement with his investment.
