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JESSICA LYNN PRESSLEY v.

THOMAS H. JOHNSON III

(AC 38821)

Lavine, Sheldon and Prescott, Js.

Submitted on briefs1 February 17—officially released May 23, 2017

(Appeal from Superior Court, judicial district of New

Haven, Burke, J. [judgment]; Goodrow, J. [motion for

contempt; motion to reargue])

Jonathan E. Von Kohorn and Tara Von Kohorn filed

a brief for the appellant (plaintiff).
Opinion

SHELDON, J. This appeal stems from postdissolution

proceedings in which the plaintiff, Jessica Lynn

Pressley, moved that the defendant, Thomas H. Johnson

III, be found in contempt of an order in the parties’

marital dissolution judgment requiring him to pay one

half of work related child care expenses for the parties’

minor children. The plaintiff claims that the trial court

erred in denying her motion for contempt and finding

that the defendant did not owe her an arrearage for the

work related child care expenses she had incurred. We

agree with the plaintiff and thus reverse the judgment

of the trial court and remand the matter for further proceedings.

The parties’ marriage was dissolved on April 17, 2013.

Pursuant to the judgment of dissolution, the parties

share joint legal custody of their four minor children,

who reside primarily with the plaintiff. The judgment

provides, inter alia, as follows: ‘‘The parties shall equally

split the cost of child care expenses, reasonable and

necessary for the plaintiff mother to maintain

employment.’’

On August 27, 2015, the plaintiff filed a motion for

contempt claiming that the defendant had failed to pay

one half of the work related child care expenses for

their four children as required by the dissolution judgment. On October 14, 2015, the court held a hearing on

the plaintiff’s motion, at which both parties testified.

The plaintifftestified that she had notified the defendant

in May, 2015, that she would be enrolling the children

in the Trumbull Loves Children program in order for

her to be able to work full-time starting in September,

2015. The cost of that program was $550 per month per

child, but the plaintiff had secured scholarships for the

children which reduced the parties’ out-of-pocket cost

for all four children to $629.63 each per month. At the

time of the hearing, the plaintiff had paid only the fee

for the month of September, 2015, to which the defendant had refused to contribute. Because that hearing

did not commence until late in the afternoon, it did not

conclude on that day. The court told the parties that it

was not going to rule on the motion for contempt at

that time. The court found that the cost of the program

in which the parties’ four children were enrolled was

reasonable, but that it was not reasonable under their

financial circumstances. The court thus ordered the

parties to work together to try to find a more affordable

child care option, and continued the hearing to October

23, 2015.

On October 23, 2015, the court again heard testimony

and argument from the parties before it ruled on the

plaintiff’s motion for contempt. The court denied the

motion for contempt, finding that the defendant’s ‘‘failure to pay is not based upon a wilful failure to pay, but
a financial inability . . . .’’2 The court further found

that ‘‘although the daycare, and [the plaintiff] has done

her best is very, very good at $630 per month, which

is essentially what would be [the defendant’s] share,

that is not reasonable based upon his financial circumstances, particularly the finances that are $303 in child

support plus $100 in alimony per month.’’ The court

clarified that it was not finding that the defendant was

unable to pay anything because he had testified that

‘‘he could pay something.’’3 The court thus asked the

defendant, ‘‘is there a number that you reasonably think

you can manage?’’ The defendant asked for additional

time to propose an amount that he could contribute,

and the court again continued the hearing to October

27, 2015.

At the October 27, 2015 hearing, the plaintiff

expressed to the court her concern that, in notrequiring

the defendant to pay one half of the child care expenses,

it was modifying the dissolution judgment. The court

disagreed, once again pressing the defendantto propose

how much he could contribute to those expenses. Contrary to his previous testimony that he ‘‘could pay something,’’ the defendant told the court that he was unable

to contribute anything at all. The court ordered the

defendant to contribute $75 per week for the child care

expenses as a ‘‘reasonable amount based on . . . both

of the part[ies’] financial situation.’’ When the plaintiff

asked if the court was ordering reimbursement for child

care expenses already incurred, the court stated, ‘‘[n]o,

it starts today.’’

On November 12, 2015, the plaintiff filed a motion to

reargue based upon two grounds. First, the plaintiff

argued that the October 27, 2015 order constituted an

‘‘inappropriate retroactive modification of an existing

child support order where no motion to modify had

been filed.’’ Second, the plaintiff argued that the court

‘‘applied an incorrect reasonableness standard’’ when

it ‘‘engage[d] in an equitable determination as to the

reasonableness of assessing a corresponding [arrearage] against the defendant once such a reasonable rate

of child care had been determined.’’

On December 15, 2015, the court held a hearing on

the plaintiff’s motion to reargue.4 On December 30, 2015,

the court filed a memorandum of decision on the plaintiff’s motion to reargue, in which it agreed that its prior

order constituted an unauthorized modification of the

parties’ dissolution judgment, and thus vacated its earlier order requiring the defendant to pay $75 per week

toward child care expenses. The court recounted that

it had ‘‘indicated at the [contempt] hearing that the day

care costs were objectively reasonable for the services

provided to the children, however, it found that the

costs were not reasonable given the financial circumstances of the parties.’’ The court concluded that

because the child care costs claimed by the plaintiff
were not reasonable, ‘‘the defendant was not obligated

by the [dissolution] agreement or the [dissolution] judgment to contribute one half of the day care costs sought

by the plaintiff.’’ On that basis, the court held that the

defendant was not required to pay an arrearage for his

contribution to the child care costs that the plaintiff

had already incurred. This appeal followed.

The plaintiff challenges on appeal the court’s ruling

on her motion to reargue. Initially, the court properly

determined that its earlier order constituted a modification of the dissolution judgment, which was improper

in the absence of a properly filed motion to modify.

See Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d

757 (1998) (‘‘[a]n order of the court must be obeyed

until it has been modified or successfully challenged’’

[internal quotation marks omitted]). The court thus

properly vacated that prior order, effectively leaving

intact the order in the dissolution judgment that the

parties share equally the cost of child care. With that

order properly reinstated, the court’s role was simply

to calculate the amount owed by the defendant as an

arrearage forthe reasonable and necessary cost of child

care incurred by the plaintiff, to which the defendant

had failed to contribute, since she began working in

September, 2015. We therefore agree with the plaintiff

that, in failing to do so, the trial court abused its discretion.

‘‘The standard of review for a court’s denial of a

motion to reargue is abuse of discretion. . . . [T]he

purpose of a reargument is . . . to demonstrate to the

court that there is some decision or some principle of

law which would have a controlling effect, and which

has been overlooked, or that there has been a misapprehension of facts. . . . It may also be used to address

. . . claims of law that the [movant] claimed were not

addressed by the court.’’ (Internal quotation marks

omitted.) Lynch v. Lynch, 153 Conn. App. 208, 244, 100

A.3d 968 (2014), cert. denied, 315 Conn. 923, 108 A.3d

1124 (2015). Because the plaintiff moved to reargue the

court’s ruling on her motion for contempt, we must

also assess the propriety of that ruling.

‘‘[O]ur analysis of a judgment of contempt consists

of two levels of inquiry. First, we must resolve the

threshold question of whetherthe underlying order constituted a court order that was sufficiently clear and

unambiguous so as to support a judgment of contempt.

. . . This is a legal inquiry subject to de novo review.

. . . Second, if we conclude that the underlying court

order was sufficiently clear and unambiguous, we must

then determine whetherthe trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s

determination of whether the violation was wilful or

excused by a good faith dispute or misunderstanding.’’

(Internal quotation marks omitted.) Ciottone v. Ciot-
tone, 154 Conn. App. 780, 788–89, 107 A.3d 1004 (2015).

‘‘Courts have in general the power to fashion a remedy appropriate to the vindication of a prior . . . judgment. . . . Having found noncompliance, the court, in

the exercise of its equitable powers, necessarily ha[s]

the authority to fashion whatever orders [are] required

to protectthe integrity of [its original] judgment.’’(Internal quotation marks omitted.) Id., 794. ‘‘This is so

because [i]n a contempt proceeding, even in the absence

of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result

of another party’s failure to comply with the court

order.’’ (Emphasis in original; internal quotation marks

omitted.) Fuller v. Fuller, 119 Conn. App. 105, 115, 987

A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329

(2010).

Here, the parties did not argue that the orderrequiring

them to share equally the reasonable work related child

care expenses for their children was unclear or ambiguous. The court found that the defendant’s noncompliance with that order was not wilful because he had

testified that, although he ‘‘could pay something,’’ he

was unable to pay the entirety of his one-half share of

the child care expenses for the parties’ children. Upon

so finding, the trial court had the authority, in the exercise of its equitable powers, to fashion an order consistent with protecting the integrity of the dissolution

judgment. It failed to do so. In not finding and requiring

the defendant to pay an arrearage for his share of child

care costs that the plaintiff had incurred, the court

effectively found that the defendant had no obligation

to pay one half of the child care expenses forthe parties’

children, contrary to the plain language of the dissolution judgment. We thus agree with the plaintiff that the

court abused its discretion in failing to find an arrearage

for the child care expenses that the plaintiff had

incurred.

The judgment is reversed and the case is remanded

to the trial court for further proceedings to determine

the arrearage owed by the defendant to the plaintiff

pursuant to the judgment of dissolution.

In this opinion the other judges concurred.

1 The defendant did not submit a brief to this court. Our review of the

plaintiff’s claims on appeal is thus limited to her brief.

2 The parties both testified that neither of them was able to find a less

expensive facility that could provide the care necessary for their children

and their work schedules.

3 By the defendant’s own testimony, he was able to contribute to child care

expenses, but he claimed that he was unable to pay the amount requested by

the plaintiff. He therefore did not contribute at all. The trial court’s finding

that the defendant’s failure to comply with the court’s order was not wilful

is thus puzzling. Because, however, the plaintiff is not challenging the court’s

finding in this regard, we need not address its propriety.

4

It is noteworthy that, as of the date of that hearing, the plaintiff had

secured additional scholarships for the children that further reduced the

parties’ out-of-pocket costs.