Giordano v. Giordano, 203 Conn. App. 652 (2021) (contempt; credibility; counsel fees to defend appeal)
Officially released April 6, 2021
In Short: Credibility assessments will not be overturned on appeal. Husband was found in contempt but provided no serious basis to challenge the trial court’s findings. An award of counsel fees to avoid undermining prior financial orders against a contemnor was upheld.
The parties were married in 1992 and divorced in 2005 pursuant to separation agreement. The separation agreement provided that Husband was to pay Wife $425,000 in exchange for retaining ownership in certain commercial properties, and that if he divested himself in any way of those properties, he would immediately pay the funds remaining due to Wife at that time.
In 2009, Wife filed a motion for contempt asserting that Husband had sold the commercial properties in a “like-kind” exchange and was obligated to make immediate payment of the remaining sums owed. That motion for contempt was granted and affirmed on prior appeal.
The parties thereafter entered into an agreement which was entered as a court order in 2011, providing, inter alia, that a $175,000 lump sum would be payable to Wife as alimony, beginning upon the termination of the prior periodic alimony order at a rate of $200 per week for one year and then at a rate of $300 per week until satisfied. In the event that Husband received certain monies, he was to make additional payments.
In 2019 Wife filed a motion for contempt alleging that Husband owed her a balance of $62,510 in lump sum alimony and had failed to remit the prior three weekly $300 payments. The parties both participated as self-represented parties in an evidentiary hearing. The trial court received into evidence accountings by both parties, and two letters from Husband claiming he was sure he had overpaid and would pay if he was wrong and owed the money, to which Wife did not respond.
The trial court found Husband in contempt, finding that the prior order was clear and unambiguous, and that Husband violated the order. The trial court found Husband not to be credible, found he had the ability to pay, and that Wife was credible and correct. The trial court ordered Husband to pay $2,745 by March 15, 2019 and then $1,300 per month until the outstanding lump sum was paid in full. Husband filed an appeal.
In April of 2019, Wife filed a motion for appellate attorney’s fees, for which Wife was represented, and the trial court awarded $10,000 in legal fees to be paid at a rate of $100 per week. The trial court found Husband’s purported inability to pay Wife’s counsel fees not to be credible, found Husband had the ability to pay, and found that awarding such fees was necessary to avoid undermining the court’s prior financial orders. Husband amended the appeal to encompass the award of counsel fees.
The Appellate Court set forth the standard for reviewing a judgment of contempt, that it must first assess whether the order was sufficiently clear and unambiguous, and second, determine whether the trial court abused its discretion in issuing or failing to issue a finding of contempt, which includes review of the trial court’s determination of whether the violation was willful.
Husband argued that his letters demonstrate that he had a good faith belief that he had paid the alimony in full, and that Wife’s ignoring the letters established a good faith disagreement as to whether he satisfied his obligations. The Appellate Court found that the trial court did not ignore the letters, as they were addressed in the trial court’s finding of lack of credibility on Husband’s part. The Appellate Court found no abuse of discretion as to the contempt finding.
The Appellate Court set forth the standard for counsel fees under § 46b-62. Husband claimed the trial court’s award of fees was improper because his testimony and financial affidavit demonstrated his inability to pay. The Appellate Court declined to second guess the trial court’s finding that Husband was not credible. Husband argued that Wife had the ability to pay her own fees, which the trial court failed to consider. The Appellate Court pointed to the exception that the trial court relied upon, that failure to award such fees would undermine the prior orders. The Appellate Court determined that this finding was justified.
The Judgment was affirmed.