This case presents three appeals by the defendant that were consolidated for the purposes of oral argument. In appeal No. 10785, the defendant appeals a contempt order and a $1000 fine, the award to the plaintiff of counsel fees in connection with the contempt, the granting of a $3000 allowance to the plaintiff to defend this appeal, and the denial of the defendant's motion to reargue, modify, and order. In appeal No. 10870, the defendant appeals the denial of his motion for order, the award to the plaintiff of counsel fees for defense of that motion, and the granting of a $3500 allowance to the plaintiff to defend this appeal. In appeal No. 11456, the defendant appeals a denial of his motion for order, the award to the plaintiff of counsel fees for defense of that motion, and a subsequent contempt order.
Immediately after the decree a barrage of litigation between the parties ensued, only some of which is relevant here. On March 17, 1972, the court granted the plaintiff's motion that the defendant's visitation rights be exercised at a place other than the premises of 33 Lolly Lane. On August 30, 1972, the plaintiff sought to clarify the defendant's rights with respect to 33 Lolly Lane and moved that the court specifically prohibit "the defendant from entering upon the land or building at 33 Lolly Lane, Stamford." On September 8, 1972, the court granted the motion, stating "Defendant forbidden to go on land or in building at 33 Lolly Lane, Stamford, Conn." It is this order, not appealed by the defendant, that is the crux of all three appeals.
APPEAL No. 10785
The defendant continued to enter the land and premises of 33 Lolly Lane. As a result, between 1975 and 1980 the plaintiff filed and was granted a series of contempt motions, none of which the defendant appealed. Despite these findings of contempt, on October 25, 1980, the defendant went to the house for an unscheduled visit with his sons. An altercation ensued which resulted in the plaintiff's calling the police. The
On the same day, the defendant filed a motion to reargue, modify, and order in which he requested the vacation of the March, 1972 modification order, the September, 1972 modification order, the November, 1980 contempt order, and the January, 1981 allowance of counsel fees as well as the reinstatement of his rights as determined by the original 1971—decree. In addition, he requested counsel fees. This motion
This court's role in reviewing a contempt order is very limited. "An adjudication of contempt is final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt."
We first address two challenges that can be dismissed summarily, the defense of laches and the claim that the September, 1972 order was vague and ambiguous. "Laches consists of an inexcusable delay which prejudices the defendant." Danaher v. C. N. Flagg & Co., 181 Conn. 101, 107, 434 A.2d 944 (1980). The defendant claims that the plaintiff waited "eight years and two months before asserting that the Husband could not go up and down the driveway of his domicile." This claim is at best disingenuous. The record shows that the plaintiff initiated four contempt motions that were granted in the last eight years. It was hardly error for the court to determine that this did not constitute delay and to reject the defendant's claim of laches.
Equally disingenuous is the defendant's claim that his conduct was innocent because the September, 1972 order was vague. The defendant premises this argument on an insistence that the word "land" does not
Because no person ought to be entrapped by vague and general orders; Rogers Mfg. Co. v. Rogers, 38 Conn. 121, 125 (1871); this claim, were it factually based, would give us pause. But the defendant's claim is based in fantasy, for the September, 1972 order clearly reads: "Defendant Forbidden to Go on Land or in Building at 33 Lolly Lane, Stamford, Conn." The word "property" does not even appear in the order.
"The inability of the defendant to obey an order of the court, without fault on his part, is a good defense to a charge of contempt. 17 Am. Jur. 2d, Contempt, § 51." Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). In this case, however, where the order is crystal clear, where the defendant was found in contempt of this very order four times, and where the defendant admits to having been on the land on October 25, 1980, his conduct cannot be characterized as innocent.
The defendant next challenges the imposition of $300 in counsel fees and a $1000 fine as arbitrary and capricious and excessive. We do not agree. The court has the power to fine one who has been found in contempt. See, e.g., Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). The plaintiff has had to bring five contempt motions in order to enforce the September, 1972 order. Three of those
Similarly, it was not an abuse of discretion for the judge to award the plaintiff an allowance of $3000 to defend this appeal. The "inherent" power of the court to award such an allowance is well settled. See Krasnow v. Krasnow, 140 Conn. 254, 261, 99 A.2d 104 (1953). "Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion." El Idrissi v. El Idrissi, 173 Conn. 295, 301-302, 377 A.2d 330 (1977). In exercising its broad discretion it is appropriate for the court to consider the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the respective financial abilities of the parties. The defendant contends that the trial court abused its discretion in awarding the allowance because the plaintiff works and the parties have economic parity. The trial court held a hearing on the parties' financial status on January 12, 1981. A reading of the transcript reveals that it did not find economic parity between the parties and awarded the allowance on the basis of the defendant's "asset picture" and the numerous suits the plaintiff has had to defend.
"The basis of the allowance is that she [the wife] should not be deprived of her rights because she lacks funds...." Steinmann v. Steinmann, 121 Conn. 498, 505, 186 A. 501 (1936). The plaintiff has had to defend numerous suits, some "frivolous," on matters that were long ago adjudicated. She has also had to bring five contempt motions. In addition to these three appeals, there is another appeal pending and numerous
Finally, the defendant claims that it was error for the court on February 2, 1981, to dismiss his "Motion to Reargue, Modify and Order" which sought to vacate the contempt order and all other orders on the basis of allegedly new evidence. The defendant also sought counsel fees. The court dismissed the motion for failure to conform to the rules of practice and denied the defendant counsel fees. Since the issues raised in that motion were not properly before the trial court, we cannot consider them here. Practice Book §§ 3063.
APPEAL No. 10870
On May 8, 1981, the defendant filed a motion for order for an immediate hearing "to complete action on several matters currently unresolved in this Court...." Included as "unresolved" were four motions the defendant had previously filed: a motion for contempt (denied October 22, 1979); a motion for order regarding Christmas visitation (filed December 13, 1979, never acted on presumably because it became moot); a motion to compel withdrawal of the plaintiff's
On June 8, 1981, the defendant appealed the denial of the motion and the award of counsel fees.
In challenging the denial of his omnibus motion, the defendant focuses on the denial of the motion to compel withdrawal of counsel, which had been initially denied on January 12, 1981.
APPEAL No. 11456
On May 5, 1982, the defendant filed a motion for order to cancel all modifications of the original (1971) judgment and restore him to "his original visitation and ancillary rights" until his younger son reaches majority. On May 17, 1982, the motion was denied and the plaintiff was awarded counsel fees for defense of that motion.
On May 24, 1982, the plaintiff filed a contempt motion claiming that the defendant again violated the September, 1972 order forbidding him to enter the land and premises at 33 Lolly Lane. The motion was granted with counsel fees. On May 28, 1982, the defendant appealed both decisions.
Similarly, the court did not err in granting the plaintiff's contempt motion and in awarding the plaintiff counsel fees. The sole testimony at the May 24, 1982 hearing was that of the defendant's sixteen-year-old son. He testified that while the plaintiff was away, the defendant entered the house, announced, "[d]on't tell your mother, but I want to have a look around the place," and proceeded from room to room. The defendant admits to having entered the house but denies it was contemptuous because the son "readily acquiesced" to his entrance. As discussed earlier, and as has been reiterated to the defendant by various trial judges, the September, 1972 order is starkly clear. The trial court was fully justified in adjudicating the defendant in contempt.
There is no error.
In this opinion the other judges concurred.