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FELICIA PIEROT BRODY v. CARY BRODY

(SC 19037)

Rogers, C. J., and Palmer, Zarella, Eveleigh and Robinson, Js.

Argued September 15, 2014—officially released January 13, 2015

Kenneth J. Bartschi, with whom were Brendon P.

Levesque, and, on the brief, M. Caitlin S. Anderson,

for the appellant (defendant).

Gary I. Cohen, for the appellee (plaintiff).
Opinion

ROBINSON, J. The defendant, Cary Brody, appeals,

upon our grant of his petition for certification,1

from

the judgment of the Appellate Court affirming the judgment of the trial court dissolving his marriage to the

plaintiff, Felicia Pierot Brody, and awarding her a $2.5

million lump sum alimony payment, and likewise

affirming the trial court’s postjudgment order finding

the defendantin contemptforfailing to turn over certain

property to a third party bailee. Brody v. Brody, 136

Conn. App. 773, 776, 51 A.3d 1121 (2012). On appeal, the

defendant claims that the Appellate Court improperly

concluded that: (1) the alimony award was not based

on a finding that he had committed adultery; (2) the

alimony award did not violate the parties’ prior written

stipulation releasing the defendant from ‘‘any and all

claims’’ arising from certain financial misconduct he

allegedly committed during the marriage; and (3) a preponderance of the evidence standard of proof governs

indirect civil contempt proceedings.2 We disagree with

the defendant’s claims challenging theAppellateCourt’s

decision to uphold the trial court’s alimony award, but

agree with his claim regarding the standard of proof

governing indirect civil contempt proceedings. Specifically, we conclude that the defendant is entitled to a

new hearing with respect to the trial court’s April 28,

2011 postjudgment order because findings of indirect

civil contempt must be supported by clear and convincing evidence. Accordingly, we affirm in part and reverse

in part the judgment of the Appellate Court.

The Appellate Court’s opinion aptly sets forth the

following relevant facts and procedural history. ‘‘The

parties met in 1997 and started dating shortly thereafter.

. . . [I]n 1998, [the defendant] started his own hedge

fund, named Colonial Fund, LLC (fund). The plaintiff

assisted the defendant in establishing the fund, making

an initial investment of $250,000 . . . [and] loaning the

fund $600,000 for working capital . . . .

‘‘In April, 2000, the parties decided to marry. . . . At

the time of their marriage, the defendant’s net worth

was approximately $46 million and the plaintiff’s net

worth was approximately $29 million. . . . Their first

child was born in September, 2002. . . .

‘‘The parties enjoyed a comfortable lifestyle fueled

by the defendant’s successes at work, and they had a

second child. Between 2003 and 2004, the plaintiff made

investments totaling $2,650,000 in the fund on behalf

of herself and her children.

‘‘During this time, however, the parties began discussing what the plaintiff perceived as the excessive

spending of the defendant. Between 2005 and 2008, the

plaintiff expressed to the defendant her unhappiness

with his purchases of two airplanes, a wine cellar costing in excess of $100,000 and Ferrari automobiles. The
defendant was drinking alcoholic beverages more than

he had earlier in the marriage, and he was becoming

verbally abusive of the plaintiff. From 2007 to 2008,

the defendant continued to be verbally abusive of the

plaintiff and started to become aggressive sexually with

her. The plaintiff made it clear to the defendant that

she was unhappy with his behavior, but the defendant

was unreceptive to her concerns.

‘‘Unknown to the plaintiff, the defendant’s income

had started to decline in 2005. In 2007, the defendant’s

partner in the fund called the plaintiff to inform her

of significant losses in the fund and of hidden trades

engaged in by the defendant. In October, 2007, the plaintiff learned, when it was announced publicly, that the

Securities and Exchange Commission was prosecuting

the fund and the defendant personally. The defendant

had been aware of this investigation since July, 2003,

but he had not told the plaintiff about it. The defendant

assured the plaintiff that she did not have to worry,

and the plaintiff continued to support the defendant.

In May, 2008, the defendant accepted delivery of a new

Ferrari.’’ Id., 776–78.

The record further reveals that, in May, 2008, the

plaintiff first learned that the fund was freezing its investor accounts in order ‘‘to ensure that [it] held enough

in its reserves to meet the potential . . . litigation

expense.’’ This freeze prevented investors, like the

plaintiff, from receiving more than 30 percent of their

balances. Meanwhile, as the managing member of the

fund, ‘‘the defendant redeemed money of his own funds

without any apparent holdback.’’ The plaintiff would

later bring a demand for arbitration against the fund

and the defendant personally, claiming that their misfeasance jeopardized her investments.

‘‘In June, 2008, the plaintiff discovered unused condoms in the defendant’s toiletries bag when he returned

from a five day trip to California. According to the

[plaintiff] . . . the defendant had not used condoms in

the marriage for the past three years. . . . [The defendant asserted] that he used the condoms in the marriage

when his sexually transmitted disease was active and

that he used the condoms for comfort when he had

ingrown hairs.’’ Brody v. Brody, supra, 136 Conn.

App. 779–80.

‘‘The defendant was served with divorce papers on

July 1, 2008. . . . In a memorandum of decision issued

March 12, 2010, the court, Munro, J., ordered, among

other things, the dissolution of the parties’ marriage.

In connection with the dissolution judgment, the court

ordered the defendant to pay the plaintiff $2,500,000 in

lump sum alimony . . . .’’ (Footnote omitted.) Id., 779.

Before the trial court’s judgment was rendered in this

dissolution action, the parties had entered into a separate settlement agreement regarding the alleged mishandling of the fund.
Subsequently, on November 29, 2010, the trial court,

Munro, J., issued a remedial order requiring the defendant to, inter alia, inventory his watch collection and

then turn all ofthe watches overto a third party bailee as

security for amounts owed to the plaintiff.3 The plaintiff

filed a postjudgment motion for contempt on January

27, 2011, alleging that, while she was picking up the

children from the defendant’s home a few days prior,

she had observed him wearing a valuable watch. After

hearing conflicting testimony regarding this encounter,

the court, Wenzel, J., issued an order dated April 28,

2011, which found the defendant in contempt for failing

to comply with Judge Munro’s remedial order. In making this contempt finding, Judge Wenzel applied a preponderance of the evidence standard of proof.

The defendant appealed from the trial court’s dissolution judgment and postjudgment orders to the Appellate

Court. With respect to the issues that are the subject

of this certified appeal,4

the Appellate Court rejected

the defendant’s claims that the trial court improperly:

(1) based its alimony award on a finding that the defendant committed adultery; id., 783; (2) based its alimony

award on conduct that was subject to a prior written

stipulation between the parties; id., 787; and (3) applied

a preponderance of the evidence standard of proof to

the indirect civil contempt proceeding. Id., 801. This

certified appeal followed. See footnote 1 of this opinion.

Additional relevant facts and procedural history will be

provided as necessary.

I

ALIMONY AWARD

We pause to underscore that ‘‘a judgment in a complicated dissolution case is a carefully crafted mosaic,’’

which this court is reluctant to disturb without adequate

cause. (Internal quotation marks omitted.) Grimm v.

Grimm, 276 Conn. 377, 386, 886 A.2d 391 (2005), cert.

denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815

(2006). ‘‘As we have repeatedly noted, trial courts have

a distinct advantage over an appellate court in dealing

with domestic relations, where all of the surrounding

circumstances and the appearance and attitude of the

parties are so significant.’’ (Internal quotation marks

omitted.) Hardisty v. Hardisty, 183 Conn. 253, 260, 439

A.2d 307 (1981). ‘‘In determining whether a trial court

has abused its broad discretion in domestic relations

matters, we allow every reasonable presumption in

favor of the correctness of its action.’’ (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297

Conn. 358, 366–67, 999 A.2d 721 (2010).

A

Adultery Finding

We begin with the defendant’s claim that the Appellate Court improperly concluded that the trial court’s
alimony award was not based on a finding that he had

committed adultery. The defendant contends that the

trial court did make an adultery finding against him,

‘‘explicitly and repetitively,’’ and improperly awarded

the plaintiff alimony on that basis because the evidence

of adultery was insufficient. In support of his argument,

the defendant directs our attention to four specific passages in the trial court’s memorandum of decision. The

first such passage is the following: ‘‘The court finds that

the presence of condoms in [the defendant’s toiletries

bag] was a sufficient basis for the plaintiff to presume

he was unfaithful to her. Further, the court having found

him not credible on this regarding a substantial statutory factor, cause of the breakdown of the marriage,

which the court must consider in weighing alimony

claims. Further, the court considers this lack of credibility a substantial adverse factor where it is weighing the

differing testimony of the parties and credibility is an

issue.’’ In a second passage, the trial court stated that

‘‘[t]he marriage between the parties has broken down

irretrievably, in large part because of the defendant’s

dishonesty, probable infidelity and his increasingly abusive behavior towards the plaintiff.’’ Later, in a third

passage, the trial court ‘‘[found] that the defendant

[was] responsible for the breakdown of the marriage

for conduct described herein.’’ In a fourth passage, the

trial court remarked that ‘‘[t]he sanctity of an oath of

honesty is apparently of little importance to the defendant. The marital vow of fidelity proved no more binding

on [him].’’ The defendant insists that these four passages clearly illustrate that the trial court made an adultery finding against him and, moreover, that the adultery

finding had a material effect on the amount of alimony

awarded to the plaintiff. The defendant argues that the

Appellate Court improperly concluded otherwise and,

further, that he is entitled to a new trial because the

trial court’s findings were not supported by sufficient

evidence to satisfy the legal standard for adultery findings that was articulated in such cases as Turgeon v.

Turgeon, 190 Conn. 269, 278–79, 460 A.2d 1260 (1983).

In response, the plaintiff argues that the Appellate

Court properly concluded that the trial court did not

actually find that the defendant committed adultery

and, further, did not award her alimony on that particular basis. The plaintiff contends that the trial court’s

judgment instead was grounded in the defendant’s ‘‘consistent lack of credibility.’’ That is, the trial court identified the defendant’s dishonesty ‘‘on a plethora of

matters’’ as a significant cause of the marital breakdown. The plaintiff argues that this overall credibility

problem led the trial court, in passing, to likewise question the veracity of defendant’s proffered excuse regarding the condoms discovered in his toiletries bag.

According to the plaintiff, however, the trial court did

not take the additional step of making an affirmative

infidelity finding. Turning to the four specific passages
cited by the defendant, the plaintiff responds that the

trial court’s language merely notes ‘‘[the plaintiff’s]

belief in the [defendant’s] probable infidelity,’’ without

making such a finding for itself. The plaintiff then adds

that ‘‘[t]here is nothing else . . . to support the claim

of error that the court made the [defendant’s] alleged

infidelity a factor in the award of alimony.’’ We agree

with the plaintiff’s broader view of the trial court’s

judgment—namely, that it actually dissolved this marriage due to irreconcilable differences, fueled in large

part by the defendant’s persistent lack of trustworthiness—and conclude that, to the extent that any subordinate passages regarding infidelity are ambiguous, they

should be read in favor of upholding the trial court’s

alimony award.

Upon closer examination, we are unpersuaded by the

defendant’s argument that the four relevant passages

from the trial court’s memorandum of decision show

that it made a conclusive finding of infidelity which, in

turn, affected its alimony award. At best, the challenged

language sends mixed signals. Consider, for example,

the first passage: ‘‘The court finds that the presence

of condoms in [the defendant’s toiletries bag] was a

sufficient basis for the plaintiff to presume he was

unfaithful to her. Further, the court having found him

not credible on this regarding a substantial statutory

factor, cause of the breakdown of the marriage, which

the court must consider in weighing alimony claims.

Further, the court considers this lack of credibility a

substantial adverse factor where it is weighing the differing testimony of the parties and credibility is an

issue.’’ (Emphasis added.) The introductory sentence

acknowledges that an evidentiary basis exists for the

plaintiff’s subjective belief that the defendant was

unfaithful to her. The middle sentence is either incomplete or in need of grammatical reconstruction. The

concluding sentence is somewhat circular, but speaks

to the trial court’s general view that the defendant

lacked credibility. Taken individually and together, the

sentences within the first disputed passage are thus, to

quote the defendant, ‘‘obliqu[e]’’ on the issue of whether

an infidelity finding was actually made and whether

such a finding would have affected the trial court’s

alimony award. Contrary to the defendant’s arguments,

this passage is reasonably read as being consistent with

the trial court attributing the breakdown of this marriage to the defendant’s overall issues concerning trustworthiness. The second and third passages are similarly

inconclusive. The fourth passage amounts to judicial

admonishment, but not a clear factual finding—much

less one that was used in calculating alimony.

Importantly, the four passages invoked by the defendant should not be read in isolation, absent the overall

context of the trial court’s memorandum of decision.

See In re Jason R., 306 Conn. 438, 453, 51 A.3d 334

(2012) (‘‘an opinion must be read as a whole, without
particular portions read in isolation, to discern the

parameters of its holding’’ [internal quotation marks

omitted]). This is especially necessary given the considerable breadth and depth of the memorandum, which,

without accounting for the accompanying financial

orders, spans thirty-eight pages. Upon a full review of

the memorandum, the fleeting mentions of infidelity

are eclipsed by the trial court’s flood of findings that

the defendant acted dishonestly. To provide a demonstrative, but nonexhaustive list, we observe here that

the trial court determined that the defendant: (1) lied

under oath about taking the plaintiff’s jewelry during

the pendency of a prior dissolution action—which was

withdrawn after the parties reconciled; (2) concealed

his troubles at work and declining income from the

plaintiff, despite her expressed concerns; and (3) was

not forthcoming about a multitude of financial matters,

both before and after the present dissolution action

commenced. This rampant dishonesty was identified

by the trial court as a driving cause of the marital breakdown, and is amply supported by the record. Indeed,

the trial court expressly dissolved the marriage because

it had broken down irretrievably, and not because of

adultery. See General Statutes § 46b-40 (c) (‘‘[a] decree

of dissolution of a marriage . . . shall be granted upon

a finding that one of the following causes has occurred:

[1] [t]he marriage has broken down irretrievably . . .

[3] adultery’’).

Having fully considered the defendant’s claim, we

decline his invitation to engage in syntactic exercises

with the four isolated and ambiguous passages and,

instead, read them to support the trial court’s alimony

award.5 See D’Ascanio v. Toyota Industries Corp., 309

Conn. 663, 686, 72 A.3d 1019 (2013) (McDonald, J.,

concurring) (ambiguous statements read in light most

favorable to sustaining trial court decision); In re Jason

R., supra, 306 Conn. 453 (‘‘[w]e read an ambiguous trial

court record so as to support, rather than contradict,

its judgment’’ [internal quotation marks omitted]). This

approach is consistent with our more holistic reading

of the trial court’s memorandum of decision, which

was replete with findings that the defendant generally

lacked credibility and, in turn, was responsible for the

irretrievable breakdown of the marriage. Moreover,

this comports with our well established principles

according due deference to complex dissolution judgments. See, e.g., Grimm v. Grimm, supra, 276 Conn.

386. Accordingly, we conclude that the Appellate Court

properly determined thatthe trial court’s alimony award

was not based on a finding that the defendant had

committed adultery.

B

Prior Written Stipulation

We next turn to the defendant’s claim that the Appellate Court improperly concluded that the trial court did
not improperly award alimony based on conduct that

had been subject to a prior written stipulation between

the parties. Specifically, the defendant argues that, as

part of an arbitration settlement, the plaintiff released

‘‘ ‘any and all claims’ arising from her investment in the

[fund].’’ (Emphasis added.) The defendant emphasizes

that the release in question broadly encompasses ‘‘any

and all claims’’ relating to the fund, and was not limited

to the arbitration context, ‘‘as so easily could have been

done . . . .’’ Citing, for example, Felton v. Felton, 123

Conn. 564, 196 A. 791 (1938), the defendant contends

that ‘‘[a] demand for alimony is a ‘claim,’ ’’ and that ‘‘the

trial court subsequently held that [the] plaintiff had not

released a claim for alimony based on the identical

allegations of misconduct involving [the] plaintiff’s

[fund] investments.’’ (Emphasis in original.) This was

improper, the defendant argues, because ‘‘[t]he trial

court was not at liberty to compensate [the plaintiff]

. . . in connection with her investment in [the fund].’’

In response, the plaintiff agrees that she released, by

written stipulation, ‘‘ ‘any and all claims’ arising out of

[her] investment in the fund in consideration of . . .

being paid what was due’’ from her fund accounts. The

plaintiff contends, however, that the released arbitration claims arose from the defendant’s ‘‘mismanagement and failure to return . . . funds, as a matter of

contract and property law.’’ She argues that those

claims were ‘‘clearly independent of [her] claim for

dissolution of the marriage’’ and ‘‘for alimony and child

support . . . .’’ (Emphasis omitted.) Put differently,

she contends that the stipulation ‘‘was a property

release relating to a nonmarital right.’’ (Emphasis in

original.) The trial court was aware of the distinction,

the plaintiff argues, as evidenced by its refusal to award

her any attorney’s fees in connection with her pursuit

of the fund related arbitration. The plaintiff contends

that all of this is consistent with the concept that ‘‘[t]he

alimony award is not a property right that compensates

the payee for a lost property right or claim; it is compensation for the loss of spousal support.’’ We agree with

the plaintiff and conclude that the parties’ prior written

settlement did not preclude the trial court from considering the plaintiff’s investment in the fund when fashioning the alimony award.

‘‘Trial courts . . . are afforded wide discretion in

awarding alimony, provided that they consider all of

the criteria enumerated in General Statutes § 46b-82.’’6

Greco v. Greco, 275 Conn. 348, 360, 880 A.2d 872 (2005).

‘‘The generally accepted purpose of . . . alimony is to

enable a spouse who is disadvantaged through divorce

to enjoy a standard of living commensurate with the

standard of living during marriage.’’ 24A Am. Jur. 2d

117, Divorce and Separation § 662 (2008). ‘‘A decree for

the payment of alimony, therefore, does not constitute:

(1) a debt in the traditional sense; (2) a decree for the

payment of damages; or (3) a decree for the imposition
of a penalty.’’ (Footnote omitted.) Id., § 573, pp. 24-25;

see also Greco v. Greco, supra, 361 (‘‘alimony is not

designed to punish, but to ensure that the former spouse

receives adequate support’’). ‘‘Although in a dissolution

action, the trial court must consider the conduct of the

parties, the judgment in a dissolution action does not

provide direct compensation as such to a party for

injuries suffered during the marriage.’’ Delahunty v.

Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 593,

674 A.2d 1290 (1996).

Turning our attention to the settlement stipulation,

we first observe that ‘‘a stipulation is considered a contract’’ and that a ‘‘determination of what the parties

intended by their . . . commitments is a question of

law [over which ourreview is plenary].’’(Internal quotation marks omitted.) Ahmadi v. Ahmadi, 294 Conn.

384, 390, 985 A.2d 319 (2009). The parties’ stipulation

states: ‘‘[The] plaintiff hereby releases . . . [the fund

and the defendant] from any and all claims arising out

of [the] plaintiff’s investment in [the fund] prior to July

17, 2009.’’ We conclude that nothing in this language

would constrain the trial court’s equitable discretion

with respect to alimony. The settlement merely released

the defendant from the plaintiff’s threatened claims for

damages in connection with the fund. As observed, the

nature of alimony is categorically distinct from damages, in that it is a forward-looking means of providing

economic support for a former spouse. Cf. Delahunty

v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn.

592 (‘‘[a] tort action, the purpose of which is to redress

a legal wrong by an award of damages, is not based on

the same underlying claim as an action for dissolution,

the purpose of which is to severthe maritalrelationship,

to fix the rights of the parties with respect to alimony

and child support, and to divide the marital estate’’).

Moreover, following a discussion of the fund controversy, the trial court in the present action expressly

found ‘‘that the plaintiff fully released the defendant

from any claims arising out of her ownership in the

fund in their settlement agreement.’’ The trial court

went on to distinguish the truly unique function of an

alimony claim from that of an ordinary claim, finding

‘‘that the defendant did engage in conduct that jeopardized the ability of the plaintiff to realize her assets.

While this cannot result in an order granting her reimbursement of [arbitration related] attorney’s fees . . .

it must be factored in by the court in the consideration

of alimony (falling within the [statutory] factors)

. . . .’’ This illustrates that the trial court’s discussion

of the plaintiff’s jeopardized assets was appropriately

linked to a statutory factor under § 46b-82 (a) used to

determine her alimony award, namely, her amount and

sources of income. The trial court, beyond being vested

with broad discretionary powers to fashion the alimony

award generally, had a specific statutory imperative

under § 46b-82 (a) to consider the plaintiff’s reduced
income sources—regardless of whether the reduction

was attributable to the defendant or someone else. See

Greco v. Greco, supra, 275 Conn. 360; see also General

Statutes (Supp. 2014) § 46b-82 (a) (‘‘[i]n determining

whether alimony shall be awarded, and the duration

and amount of the award, the court shall consider . . .

amount and sources of income’’). Accordingly, we conclude that the Appellate Court properly upheld the decision of the trial court to fashion the alimony award on

this basis.

II

INDIRECT CIVIL CONTEMPT PROCEEDING

We now turn to the defendant’s claim that the Appellate Court improperly concluded that Judge Wenzel

properly applied a preponderance of the evidence standard of proof to his indirect civil contempt proceeding.

The defendant acknowledges that certain Appellate

Court cases indicate that civil contempt should be

proven by a preponderance of the evidence; e.g., Gravius v. Klein, 123 Conn. App. 743, 749, 3 A.3d 950 (2010);

but argues that this court should use the present appeal

as an opportunity to hold that civil contempt must

instead be proven by ‘‘ ‘clear and convincing evidence

. . . .’ ’’ The defendant argues that this heightened standard of proof is appropriate because civil contempt

proceedings: (1) are quasi-criminal and carry the threat

of incarceration if there is a compliance failure; (2) may

have important collateral consequences; and (3) are

governed by the clear and convincing evidence standard

in a majority of other jurisdictions, including the federal system.

In response, the plaintiff does not appearto challenge

substantively the defendant’s three proffered reasons

for changing the law to require a heightened standard

of proof for civil contempt proceedings. Rather, the

plaintiff contends that the Appellate Court’s decision

is consistent with Connecticut case law—citing cases

in which the Appellate Court determined that a preponderance standard should govern civil contempt proceedings; e.g., Dickinson v. Dickinson, 143 Conn. App.

184, 189, 68 A.3d 182 (2013); Campbell v. Campbell, 120

Conn. App. 760, 767, 993 A.2d 984 (2010); as well as

cases in which this court determined that a rather amorphous ‘‘sufficient proof’’ standard should govern indirect civil contempt proceedings more specifically. E.g.,

Cologne v. Westfarms Associates, 197 Conn. 141, 151–

52, 496 A.2d 476 (1985); Potter v. Board of Selectmen,

174 Conn. 195, 197, 384 A.2d 369 (1978). The plaintiff

goes on to argue that, even if this court does adopt a

clear and convincing evidence standard, that heightened standard would be met here. We disagree, and

adopt the clear and convincing evidence standard of

proof for indirect civil contempt proceedings. We further conclude that a new contempt hearing is required

with regard to the incident underlying the trial court’s
April 28, 2011 postjudgment order.

‘‘As we have often recognized, contempts may be

characterized as civil or as criminal.’’ Cologne v. Westfarms Associates, supra, 197 Conn. 149. ‘‘[A] court’s

power to hold a party in civil or criminal contempt is

not limited by the nature of the offense. Rather, it is

the nature of the relief itself that is instructive in

determining whether a contempt is civil or criminal. A

contempt fine is civil if it either coerce[s] the defendant

into compliance with the court’s order, [or] . . . compensate[s] the complainant forlosses sustained.’’(Internal quotation marks omitted.) New Hartford v.

Connecticut Resources Recovery Authority, 291 Conn.

489, 499, 970 A.2d 570 (2009). ‘‘Contempts of court may

also be classified as either direct or indirect, the test

being whether the contempt is offered within or outside

the presence of the court. . . . A refusal to comply

with an injunctive decree is an indirect contempt of

court because it occurs outside the presence of the trial

court.’’ (Citations omitted; footnote omitted; internal

quotation marks omitted.) Cologne v. Westfarms Associates, supra, 150.

In the present appeal, neither party challenges the

Appellate Court’s characterization of the contempt finding as civil and indirect in nature. See Brody v. Brody,

supra, 136 Conn. App. 801. In any event, the underlying

trial court order was inarguably injunctive because it

directed the defendant to, inter alia, inventory his watch

collection and then turn all of the watches over to a

third-party bailee as security for amounts owed to the

plaintiff. Acompliance failure associated with this order

would constitute indirect civil contempt. We therefore

proceed to the narrow question of what standard of

proof should govern indirect civil contempt proceedings.

In Cologne v. Westfarms Associates, supra, 197 Conn.

150, this court recognized ‘‘that there are constitutional

safeguards that must be satisfied in indirect contempt

cases. It is beyond question that due process of law

. . . requires that one charged with contempt of court

be advised of the charges against him, have a reasonable

opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and

have a chance to testify and call other witnesses in

his behalf, either by way of defense or explanation.’’

(Internal quotation marks omitted.) The due process

requirements articulated in Cologne continue to be

instructive. See also New Hartford v. Connecticut

Resources Recovery Authority, supra, 291 Conn. 500–

501 (notice deficiency in indirect civil contempt proceeding).

In Cologne, this court further broached the topic of

which standard of proof is most appropriate forindirect

civil contempt proceedings. In surveying the historic

common law, it determined that ‘‘in the absence of
an admission of contempt, [such a finding] had to be

prove[n] by sufficient competent evidence . . . .’’7

Cologne v. Westfarms Associates, supra, 197 Conn. 151.

As applied to the action then at hand, the court concluded that the sufficient evidence standard was not

met because the trial court relied ‘‘entirely upon

unsworn statements of [a party’s] counsel’’ to reach its

contempt finding. Id., 154. We conclude that Cologne’s

standard for indirect civil contempt proceedings warrants clarification, for indeed any claim must be proven

by ‘‘sufficient’’ evidence—whether the overarching

standard of proof requires a mere preponderance of

evidence, clear or convincing evidence, or otherwise.8

Following a review of persuasive indirect civil contempt case law, we ultimately conclude that, under

Connecticut law, such proceedings should be proven

by clear and convincing evidence. This determination

is aligned with the courts of our sister states; e.g., In re

Birchall, 454 Mass. 837, 852–53, 913 N.E.2d 799 (2009);

Coventry v. Baird Properties, LLC, 13 A.3d 614, 621

(R.I. 2011); as well as federal courts. E.g., Southern

New England Telephone Co. v. Global NAPs Inc., 624

F.3d 123, 145 (2d Cir. 2010); Goya Foods, Inc. v. Wallack

Management Co., 290 F.3d 63, 77 (1st Cir. 2002). This

heightened standard of proof ‘‘adequately characterizes

the level of certainty appropriate to justify civil contempt sanctions, especially when those sanctions may

include incarceration.’’ In re Birchall, supra, 852; see

also General Statutes § 46b-87 (civil contempt finding

may potentially lead to incarceration in certain family

law matters). Moreover, within our state’s existing legal

framework for indirect civil contempt proceedings, a

clear and convincing standard of proof is consistent

with the threshold substantive requirement that the

directives of the underlying court order be ‘‘clear and

unambiguous.’’ In re Leah S., 284 Conn. 685, 693, 935

A.2d 1021 (2007). Our rigorous due process requirements for indirect civil contempt proceedings likewise

demand a heightened evidentiary standard. See Cologne

v. Westfarms Associates, supra, 197 Conn. 150. In sum, a

civil contempt finding should not attach to an individual

just because it is more likely than not that an injunction

was disobeyed beyond the eyes of a court. Accordingly,

we hold that the Appellate Court improperly concluded

that a preponderance of the evidence standard of proof

governs indirect civil contempt proceedings.

The plaintiff argues, however, that even if this court

adopts a clear and convincing evidence standard for

indirect civil contempt proceedings, the evidence in

the present case would rise to meet that heightened

standard of proof. She does not cite to any legal authority in support of her contention that, here, the improper

application of a lower standard of proof by the trial

court would be harmless error. We conclude that it is

not the province of an appellate tribunal to make her

requested evidentiary assessment in the first instance.
See Brown v. Villano, 49 Conn. App. 365, 369–70, 716

A.2d 111 (new hearing required where trial court

improperly applied preponderance standard, rather

than clear and convincing standard), cert. denied, 247

Conn. 904, 720 A.2d 513 (1998). This type of appellate

abstention is especially appropriate in the present

action, given that the trial court’s contempt finding centered on conflicting testimony regarding the defendant’s

alleged possession of a watch. See Schaffer v. Schaffer,

187 Conn. 224, 227, 445 A.2d 589 (1982) (‘‘[n]othing in

our law is more elementary than that the trier is the

final judge of the credibility of witnesses and of the

weight to be accorded their testimony’’ [internal quotation marks omitted]).

The judgment of the Appellate Court is reversed in

part and the case is remanded to that court with direction to vacate the trial court’s April 28, 2011 judgment

of contempt and to remand the case to the trial court

with direction to hold a new contempt hearing in accordance with this opinion; the judgment of the Appellate

Court is affirmed in all other respects.

In this opinion the other justices concurred.

1 We granted the defendant’s petition for certification for appeal limited

to the following issues: (1) ‘‘Did the Appellate Court properly determine

that the trial court’s judgment was not based upon a finding of adulterous

conduct on the part of the defendant?’’; (2)‘‘Did the Appellate Court properly

determine that a contractual release of ‘any and all claims arising out of the

plaintiff’s investment in [Colonial Fund, LLC]’ did not include the plaintiff’s

claims for alimony arising from the plaintiff’s investment in Colonial Fund,

LLC?’’; and (3)‘‘Did the Appellate Court properly determine that the standard

of proof in civil contempt proceedings was the ‘preponderance of the evidence’ standard?’’ Brody v. Brody, 307 Conn. 910, 910–11, 53 A.3d 998 (2012).

2 The defendant requests that we address a fourth claim relating to a

postjudgment order of contempt by the trial court, Munro, J., dated November 29, 2010. We decline to address the matter because it is outside the

scope of the certified issues. See Practice Book § 84-9 (‘‘[t]he issues which

the appellant may present are limited to those raised in the petition for

certification, except where the issues are further limited by the order granting certification’’). Notably, the Appellate Court addressed the claim in

question and the defendant failed to raise it in his petition for certification.

See Brody v. Brody, supra, 136 Conn. App. 797–99. Moreover, we do not

see any unique justification that would favor granting the defendant’s belated

request that we exercise our supervisory powers to consider the claim. Cf.

Ahneman v. Ahneman, 243 Conn. 471, 481–82, 706 A.2d 960 (1998) (invoking

supervisory powers to evaluate claim that was not certified, rather than

remanding case to Appellate Court to consider for first time, because reaching merits of claim was beneficial as matter of judicial economy).

3 The defendant challenges Judge Munro’s November 29, 2010 remedial

order. We do not, however, reach that claim. See footnote 2 of this opinion.

4 The Appellate Court also rejected the defendant’s other claims, namely,

that the trial court improperly: (1) ‘‘used an award of alimony to effectuate

an improper distribution of property in violation of the parties’ prenuptial

agreement’’; (2) ‘‘calculated the alimony award on the basis of cash flow

rather than available net income’’; and (3) ‘‘found him in contempt on the

basis of his compliance with a prior federal court order . . . .’’ Brody v.

Brody, supra, 136 Conn. App. 776.

5 Although the defendant filed a motion for articulation in this case on

July 13, 2010, that motion did not request any clarification regarding the

alleged infidelity finding. ‘‘[A]n articulation is appropriate where the trial

court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation

serves to dispel any . . . ambiguity by clarifying the factual and legal basis

upon which the trial court rendered its decisions, thereby sharpening the

issues on appeal.’’ (Internal quotation marks omitted.) Grimm v. Grimm,
supra, 276 Conn. 389.

We acknowledge that Practice Book § 61-10 (b) provides in relevant part:

‘‘The failure of any party on appeal to seek articulation pursuant . . . shall

not be the sole ground upon which the court declines to review any issue

or claim on appeal. . . .’’ (Emphasis added.) Although a trial court articulation might have been helpful in the present case, this court has afforded

meaningful review of the defendant’s claim and concludes that his desired

reading of the four passages contained in the trial court’s memorandum of

decision is myopic.

6 General Statutes (Supp. 2014) § 46b-82 (a) provides in relevant part: ‘‘At

the time of entering the decree, the Superior Court may order either of the

parties to pay alimony to the other . . . . In determining whether alimony

shall be awarded, and the duration and amount of the award, the court shall

. . . consider the length of the marriage, the causes for the annulment,

dissolution of the marriage or legal separation, the age, health, station,

occupation, amount and sources of income, earning capacity, vocational

skills, education, employability, estate and needs of each of the parties and

the award, if any, which the court may make pursuant to section 46b81 . . . .’’

We note that, although § 46b-82 was amended subsequent to the commencement of this dissolution action; see Public Acts 2013, No. 13-213, § 3;

the changes enacted by the legislature are notrelevant to the issues presently

on appeal. Therefore, for convenience, we refer to the 2014 supplement of

the statute.

7

In Cologne, this court observed, however, ‘‘that in the federal system

the burden of proof in civil contempt cases is the ‘clear and convincing

evidence’ standard.’’ Cologne v. Westfarms Associates, supra, 197 Conn.

152 n.11.

8 We acknowledge that this vagary of Cologne may have led to a number

of Appellate Court determinations that civil contempt findings should be

proven by a preponderance of the evidence. E.g., Dickinson v. Dickinson,

supra, 143 Conn. App. 189; Oldani v. Oldani, 132 Conn. App. 609, 626, 34

A.3d 407 (2011); Gravius v. Klein, supra, 123 Conn. App. 749; Campbell v.

Campbell, supra, 120 Conn. App. 767; Statewide Grievance Committee v.

Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001). Under the Appellate

Court’s well established policy, its three judge panel in this case was bound

to apply such precedent. See, e.g., Boccanfuso v. Conner, 89 Conn. App.

260, 285 n.20, 873 A.2d 208 (‘‘[T]his court’s policy dictates that one panel

should not, on its own, reverse the ruling of a previous panel. The reversal

may be accomplished only if the appeal is heard en banc.’’ [Internal quotation

marks omitted.]), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).