Bouffard v. Lewis

B
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       KRISTY L. BOUFFARD v. JAMIE G. LEWIS
                    (AC 44174)
                 Bright, C. J., and Alvord and Suarez, Js.

                                 Syllabus

The defendant, whose marriage to the plaintiff had previously been dis-
   solved, appealed from the trial court’s denial of his motion to modify
   alimony and child support and from the granting of the plaintiff’s motion
   for contempt relating to the defendant’s failure to make alimony and
   child support payments. The trial court ordered the defendant to make
   payments of the alimony and child support arrearages in granting the
   motion for contempt. The defendant claimed that his obligation to make
   the payments was stayed by filing an appeal. Thereafter, the trial court
   ordered an appellate stay on the defendant’s obligation to make the
   payments, and the plaintiff filed a motion for review to this court,
   claiming that the court’s imposition of a stay was improper. Held that
   the trial court’s orders to the defendant to make payments of periodic
   alimony and child support arrearages were not subject to an automatic
   appellate stay both by virtue of the relevant rule of practice (§ 61-11
   (c)) and because the orders were issued in connection with a judgment
   finding the defendant in contempt.
    Considered December 16, 2020—officially released March 9, 2021

                            Procedural History

   Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the court, M. Murphy, J., ren-
dered judgment dissolving the marriage and granting
certain other relief in accordance with the parties’ sepa-
ration agreement; thereafter, the court, Egan, J., denied
the defendant’s motion for modification of alimony and
child support and granted the plaintiff’s motion for con-
tempt, and the defendant appealed to this court; subse-
quently, the court, Egan, J., ordered a stay of the defen-
dant’s obligation to pay alimony and child support
arrearages, and the plaintiff filed a motion for review
with this court. Motion for review granted; relief
granted.
  Alexander Copp, with whom, on the brief, was Joce-
lyn B. Hurwitz, for the appellant (defendant).
  Sheila S. Charmoy, with whom, on the brief, was
Scott M. Charmoy, for the appellee (plaintiff).
                         Opinion

   SUAREZ, J. The defendant, Jamie G. Lewis, appeals
from the March 4, 2020 postjudgment orders of the trial
court denying his motion for modification of alimony
and child support and granting the motion of the plain-
tiff, Kristy L. Bouffard, for contempt relating to his
failure to pay alimony and child support. On October
30, 2020, the trial court issued an order wherein it found
that its March 4, 2020 orders were automatically stayed
pursuant to Practice Book § 61-11 (c). Before this court
is the plaintiff’s motion asking this court to review the
trial court’s October 30, 2020 order. The plaintiff argues
that there is no automatic stay on orders of periodic
alimony and child support. The defendant argues in
opposition to this motion for review that lump sum
alimony and support payments are subject to an auto-
matic appellate stay. Because we agree that there is no
automatic appellate stay, we grant the plaintiff’s motion
for review and grant the relief requested in that the
court’s October 30, 2020 order is vacated.
  The following undisputed facts are pertinent to our
consideration of the issues presented by the plaintiff’s
motion for review. The marriage of the parties was
dissolved on July 31, 2017. Included in the parties’ sepa-
ration agreement, which was incorporated into the judg-
ment of dissolution, were provisions requiring the
defendant to make monthly payments of $4729 as ali-
mony for seven years from the date of dissolution and
monthly payments of $1398 as child support until the
parties’ child attains the age of twenty-one. The agree-
ment further provided that, during the seven year term
of the defendant’s monthly alimony obligation, the
defendant also would make annual payments of unallo-
cated alimony and child support in a sum equal to 30
percent of any gross income from his employment that
exceeds $175,000 per year.
   On March 8, 2019, the defendant filed a postjudgment
motion for modification of his monthly alimony and
child support obligations, in which he claimed that his
income had decreased substantially. On June 5, 2019,
the plaintiff filed a motion for contempt, alleging that
the defendant had not remained current on his monthly
alimony and child support obligations since April, 2019,
and that the defendant owed an amount for unallocated
alimony and child support based on a percentage of
his 2018 gross income.The trial court, Egan, J., held a
hearing on the parties’ motions, and, on March 4, 2020,
the court denied the defendant’s motion for modifica-
tion and granted the plaintiff’s motion for contempt. The
trial court found that the defendant owed arrearages
of $8684 in child support and $37,832 in alimony, plus
an additional $82,397 in unallocated alimony and child
support based on his 2018 gross income. Additionally,
the court found the defendant in contempt for his failure
to pay alimony and child support, and awarded the
plaintiff $13,500.50 in attorney’s fees in connection with
prosecuting the motion for contempt. The court ordered
the defendant to pay the $8684 child support arrearage,
the $82,397 in unallocated alimony and child support,
and the $13,500.50 in attorney’s fees within thirty days
of the court’s order. The court ordered the defendant
to pay the $37,832 alimony arrearage within sixty days
of the court’s order. The court’s orders required the
defendant to make each of the payments for the alimony
and child support arrearages as a lump sum.
   The defendant filed a timely motion to reargue the
trial court’s March 4, 2020 orders. The trial court denied
that motion to reargue on July 1, 2020. This appeal
followed.
   The plaintiff filed an additional motion for contempt
with the trial court on April 13, 2020, on the basis of
the defendant’s failure to make the payments required
by the court’s March 4, 2020 orders and his alleged
failure to remain current with his monthly alimony and
child support payments since November, 2019. That
motion for contempt was scheduled to be heard by the
trial court on October 30, 2020. Prior to the scheduled
hearing, the plaintiff filed a motion in limine to preclude
the defendant from calling his accountant as a witness.
The defendant filed an objection to that motion in
limine, in which he argued, in part, that there was an
automatic appellate stay of the trial court’s March 4,
2020 orders. The plaintiff filed an amended motion for
contempt on October 29, 2020, arguing that the trial
court’s March 4, 2020 orders were not stayed by this
appeal.
   On October 30, 2020, the court issued the following
order, which is the subject of this motion for review:
‘‘In the court’s memorandum of decision dated [March
4, 2020] . . . the defendant was ordered to pay lump
sum arrearages of $8684 in child support and $37,832
in alimony, plus the lump sum of $82,397 in unallocated
alimony and child support, and $13,500.50 in attorney’s
fees. The defendant appealed [from] the court’s orders
on July 21, 2020. After a remote hearing on the record
during which both parties were present and represented
by counsel, the court finds that pursuant to . . . Prac-
tice Book [§] 61-11 (c) and the relevant case law, the
defendant’s obligation to pay is stayed pending appeal.’’
  The plaintiff filed a timely motion for review pursuant
to Practice Book §§ 61-14 and 66-6 on November 9,
2020, asking that this court reverse the trial court’s
order finding that its March 4, 2020 orders were subject
to an automatic appellate stay. The plaintiff claims that
the trial court’s March 4, 2020 orders are not stayed,
because (1) orders to pay alimony and child support
arrearages are not subject to an automatic appellate
stay, and (2) orders of civil contempt and the penalties
ordered in connection therewith are not subject to an
automatic appellate stay. We agree with the plaintiff.
   Our review of the trial court’s October 30, 2020 order
requires us to construe Practice Book § 61-11, particu-
larly subsections (a) and (c). The interpretation and
application of provisions of the rules of practice
involves a question of law over which our review is
plenary. See Deutsche Bank National Trust Co. v. Fra-
boni, 

182 Conn. App. 811

, 821, 

191 A.3d 247

(2018).
  Practice Book § 61-11 governs stays of execution.
Section 61-11 (a) provides in relevant part: ‘‘Except
where otherwise provided by statute or other law, pro-
ceedings to enforce or carry out the judgment or order
shall be automatically stayed until the time to file an
appeal has expired. If an appeal is filed, such proceed-
ings shall be stayed until the final determination of the
cause. . . .’’ In family matters, however, orders of peri-
odic alimony and orders of child support are specifically
exempt from the automatic stay provisions of Practice
Book § 61-11. ‘‘Unless otherwise ordered, no automatic
stay shall apply . . . to orders of periodic alimony, sup-
port, custody or visitation in family matters . . . .’’
Practice Book § 61-11 (c); see also Wolyniec v. Woly-
niec, 

188 Conn. App. 53

, 55 n.2, 

203 A.3d 1269

(2019)
(order requiring party to pay alimony and child support
arrearage is not automatically stayed by filing of
appeal); Schull v. Schull, 

163 Conn. App. 83

, 99, 

134 A.3d 686

(no automatic stay for orders of support in
certain family matters), cert. denied, 

320 Conn. 930

, 

133 A.3d 461

(2016).
   Practice Book § 61-11 (c), however, makes clear that
any party may move to terminate or to impose a stay,
before or after judgment, based on the existence or
expectation of an appeal. ‘‘The judge hearing such
motion may terminate or impose a stay of any order,
pending appeal, as appropriate, after considering (1)
the needs and interest of the parties, their children
and any other persons affected by such order; (2) the
potential prejudice that may be caused to the parties,
their children and any other persons affected, if a stay
is entered, not entered or is terminated; (3) if the appeal
is from a judgment of dissolution, the need to preserve,
pending appeal, the mosaic of orders established in the
judgement; (4) the need to preserve the rights of the
party taking the appeal to obtain effective relief if the
appeal is successful . . . and (6) any other factors
affecting the equities of the parties.’’ Practice Book § 61-
11 (c).
    Here, the defendant has not moved for a stay pursuant
to Practice Book § 61-11 (c). Rather, he argues that
‘‘lump sum payments (for alimony, child support, or
arrearages) are stayed pending appeal.’’ In support
thereof, he cites Lowe v. Lowe, 

58 Conn. App. 805

, 816,

755 A.2d 338

(2000).
   The factual and procedural history in Lowe, however,
is significantly different from that underlying the pres-
ent appeal. We note that Lowe did not involve a chal-
lenge to an order to pay an alimony and support arrear-
age. The plaintiff in Lowe was challenging a new lump
sum alimony order issued after the trial court had
vacated the alimony order issued in the original dissolu-
tion judgment.1

Id., 807–10.

In Lowe, the Appellate Court
similarly reviewed a motion to review, and it reversed
the trial court’s granting of the plaintiff’s motion for a
stay of judgment which claimed that the alimony order
was exempt from the automatic stay provision of Prac-
tice Book § 61-11 (c). The court in Lowe reasoned that
its ‘‘vacation of the order of the court indicates our
determination that the alimony order was lump sum in
nature and subject to an automatic stay.’’

Id., 816.

   In the present case, the court addressed a motion for
contempt for failure to pay periodic alimony and child
support. In doing so, the court simply calculated the
amount of past due periodic alimony and child support
that the defendant failed to pay and made a factual
finding of the amount of periodic alimony and child
support the defendant owed in arrearage. The court
then ordered that arrearage to be paid in a lump sum
amount. Unlike in Lowe, the lump sum order in the
present case was not a new order, but, rather, a calcula-
tion of past, unpaid periodic alimony and child support.
Therefore, we conclude that the March 4, 2020 orders
are not automatically stayed pursuant to Practice Book
§ 61-11 (c).
   In addition to her argument that alimony and support
orders are not automatically stayed, the plaintiff asserts
that there was no automatic stay of execution of the trial
court’s March 4, 2020 orders requiring the defendant to
make payments for past due alimony and child support
and the plaintiff’s attorney’s fees because the trial court
issued those orders in connection with a judgment find-
ing the defendant in contempt. We agree.
   ‘‘We . . . recognize that [a]lthough [a] court does
not have the authority to modify a property assignment,
[the] court, after distributing property, which includes
assigning the debts and liabilities of the parties, does
have the authority to issue postjudgment orders effectu-
ating its judgment. . . . [A]n order effectuating an
existing judgment allows the court to protect the integ-
rity of its original ruling by ensuring the parties’ timely
compliance therewith.’’ (Citations omitted; internal
quotation marks omitted.) Nappo v. Nappo, 188 Conn.
App. 574, 596, 

205 A.3d 723

(2019).
   The court’s contempt power, ‘‘to be effectual, must
be immediate and peremptory, and not subject to sus-
pension at the mere will of the offender. . . . It is for
this reason that an appeal from a civil contempt judg-
ment does not automatically stay its execution. . . .
Indeed, the conditional and coercive nature of civil con-
tempt would be rendered virtually meaningless were the
trial court’s power automatically stayed by an appeal.’’
(Citations omitted; internal quotation marks omitted.)
Papa v. New Haven Federation of Teachers, 

186 Conn. 725

, 731, 

444 A.2d 196

(1982). Guided by these princi-
ples, and in light of the fact that the court issued the
orders requiring the defendant to make payments for
past due alimony and child support and the plaintiff’s
attorney’s fees in connection with a judgment finding
the defendant in contempt, we conclude that those
orders were not automatically stayed.
   The motion of the plaintiff, filed November 9, 2020,
for review, having been presented to the court, it is
hereby ordered that review is granted and the relief
requested therein is granted in that the October 30, 2020
order of the trial court, Egan, J., is vacated as the
trial court’s March 4, 2020 orders are not subject to an
automatic appellate stay both by virtue of Practice Book
§ 61-11 (c) and because the orders were issued in con-
nection with a judgment finding the defendant in con-
tempt. The matter is remanded to the trial court for
further proceedings in accordance with this opinion.
      In this opinion the other judges concurred.
  1
   There was no order to pay periodic or lump sum child support being
challenged in Lowe.

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