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TERRY ALIANO v. MICHAEL ALIANO

(AC 34830)

DiPentima, C. J., and Sheldon and Foti, Js.

Argued October 16, 2013—officially released February 18, 2014

(Appeal from Superior Court, judicial district of New

London at Norwich, Shluger, J.)

John F. Morris, for the appellant (plaintiff).

Timothy P. Lenes, for the appellee (defendant).
Opinion

DiPENTIMA, C. J. The plaintiff, Terry Aliano,1 appeals

from the denial of her postdissolution motion for contempt filed against the defendant, Michael Aliano. On

appeal, she claims that the court improperly found that

the defendant’s failure to pay a lump sum financial

award was not wilful noncompliance with the terms

of the parties’ dissolution judgment. We disagree, and,

accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion. The parties were married on

February 24, 2007. In March, 2010, the plaintiff commenced an action seeking a dissolution of the marriage.

On November 2, 2011, following a bifurcated trial, the

court issued two memoranda of decision; one

addressing custody and access regarding the parties’

minor child and one addressing the various financial

issues.2 The court found that the defendant was the

president and chief executive officer of a number of

family businesses founded by his deceased father, Ronald Aliano (decedent). The estate of the decedent was

the subject of a probate dispute involving a woman who

claimed to be an heir of the decedent. Nevertheless,

the defendant was expected to ‘‘inherit a significant

portion of the estimated $10 million estate.’’ The court

issued a number of financial orders, including awarding

alimony to the plaintiff for a limited time period and

dividing the parties’ property. With respect to the defendant’s expected inheritance from the decedent’s estate,

the court ordered in paragraph 12 of its decision: ‘‘The

[defendant] shall make a payment to the [plaintiff] in

the amount of $100,000 within 30 days of his receiving

his inheritance so long as such receipt is in excess

of $250,000.’’

On June 21, 2012, the plaintiff filed a motion for

contempt, alleging that the defendant had wilfully

failed, refused or neglected to pay her the $100,000 as

required by the court’s judgment. She further claimed

that ‘‘[o]n March 30, 2012, the Norwich Probate Court

distributed the business known as American Ambulance Service, Inc., in equal parts between [the defendant] and . . . Rhonda Aliano Quinn (the [d]efendant’s

sister). The said distribution was the major asset of the

estate valued in excess of $4,700,000.’’ In addition to

seeking a finding of contempt and payment of the

$100,000, the plaintiff requested that the court order the

defendant to pay statutory interest pursuant to General

Statutes § 37-3a and attorney’s fees related to the prosecution of her contempt motion.3

The court held a hearing on July 16, 2012, where

the plaintiff called as a witness Andrew Messier, the

executor of the decedent’s estate and the trustee for

two of the trusts associated with the estate. Messier

testified that the defendant received 50 percent of the
shares of stock of an ambulance company owned by

the decedent. The value of the stock received by the

defendant was $2,350,000. This was the only distribution from the estate to the defendant.

The plaintiff testified that she had not received the

$100,000 payment and that the defendant had not

informed her of his receipt of a portion of his inheritance. The defendant testified that he had not received

any cash or negotiable instruments from the decedent’s

estate and that a trial was pending in the Probate Court

regarding all of the other assets of that estate. The

defendant stated that he anticipated receiving a substantial amount of cash from the decedent’s estate. During cross-examination, in response to a question about

whether he had ever made an effort to communicate

with the plaintiff about the inheritance issue, the defendant stated: ‘‘It’s my understanding I did not have to

pay that until which time I got all my inheritance, and

it was cash. [My attorney] was aware I would be paying

[the plaintiff] when I got the liquid assets to pay her. I

don’t have the money to pay her right now.’’ He then

iterated that he had not received his total inheritance,

and the portion that he had was in the form of stock.

At the conclusion of the hearing, the court stated:

‘‘This was an interesting legal argument . . . but I don’t

think it goes to what the court’s intention was in paragraph [12] of the judgment. It was the court’s intent

that [the defendant] would pay that sum of cash when

he received cash. And the court knew that he was going

to receive real estate; the court knew he was going to

receive stock in a closely held corporation, but the

court specifically used as the trigger point when he

received in excess of $250,000, and he hasn’t yet done

that. So, I don’t find he is in contempt. And I don’t find

the trigger has been pulled yet. Frankly, if he received

$250,000 in negotiable securities, in marketable securities, in a publically traded company that could be sold

on the open market, I would read the situation differently. I don’t view he has the liquid money from his

inheritance yet. . . . It says in excess of $250,000. That

was my intent. And it is not my intent that, [the defendant], in case you are thinking that all of your inheritance has to be complete, but when you receive $250,000

of liquid assets, marketable securities, you should pay

[the plaintiff] $100,000. That contempt, if there is one,

would be viewed differently.’’

Counsel for the plaintiff inquired whether the court

was clarifying the dissolution judgment so that the

$100,000 obligation would be triggered only if the defendant received an inheritance of cash. The court

responded: ‘‘I’d rather not do that because there isn’t

a motion to clarify. If and when he receives something

that is readily convertible to cash, I would certainly

entertain your motion for contempt if it wasn’t effectuated, but if it is a building that might be sold, might not
be sold, that is probably in that gray area that I won’t

go that far. When there is cash, when there is stock in

a publically traded corporation, that I consider to be

readily available cash.’’ The plaintiff’s counsel then

questioned whether the court was altering the terms of

the dissolution judgment, to which the courtresponded,

‘‘[t]hat’s not what I am doing.’’ The following colloquy

then occurred between the plaintiff’s counsel and the

court:

‘‘[The Plaintiff’s Counsel]: I understand you are not

doing that, and I am troubled because it sounds like it

is going in that direction, because he is involved with

litigation with a [person claiming to be an heir of the

decedent] that could be going on for years. We could

be sitting here for years waiting for the [probate] litigation to finish as it goes through the appellate process.

Your order is simple and one sentence; as long as it is

more than $250,000. I claim we have to satisfy that

hurdle. For Your Honor to add to the record marketable

securities or cash, it changes the nature and that

becomes an issue.

‘‘The Court: There is no motion to clarify. The court

has not clarified, modified or changed the judgment. It

is what it is. I think I was suggesting to [the defendant]

that if and when he receives the ability to pay, he should

pay [the plaintiff], but I am not ruling on a motion that

is not before me, and I am not changing the judgment.

‘‘[The Plaintiff’s Counsel]: I can’t get a ruling on the

fact that he has received more than two and one-half

million dollars of assets so far? I am trying to figure

out how to justify that.

‘‘The Court: To the extent that I have muddied the

order sufficiently, I will vacate the order that I just

made. I will vacate the findings that I just made. I am

going to vacate the dicta which I just made. The motion

for contempt is denied.’’

The plaintiff then filed the present appeal, arguing

that the court’s order was clear and unambiguous and

that the court abused its discretion by modifying the

property order and by failing to find the defendant in

contempt. Because the trial court had vacated all of its

findings underlying the order, vacated the order, and

then denied the motion for contempt without providing

the reasoning for doing so, we issued the following

order on November 5, 2013: ‘‘Pursuant to Practice Book

§§ 61-10 (b) and 60-5, the trial court . . . is hereby sua

sponte ordered to articulate, within thirty days of this

order, the factual findings and legal basis underlying

its denial of the motion for contempt.’’4

On November 21, 2013, the court issued its articulation regarding the denial of the plaintiff’s motion for

contempt. The court stated that ‘‘[t]he defendant had

inherited stock in a closely held family business. He

inherited no dollars. Stock in a closely held family busi-
ness is not dollars.’’ The court also articulated that the

defendant had not received any other distribution from

the Probate Court, he did not possess $100,000 of cash

at the time of the hearing on the contempt motion and

therefore was unable to pay that sum to the plaintiff,

and the plaintiff presented no evidence that the defendant had inherited any cash or that ‘‘the stock in a

closely held family business was liquid or otherwise

readily convertible into dollars or that there existed a

market for said shares.’’ The court also determined that

its order was ambiguous because it did not state

whether the $250,000 trigger to pay $100,000 to the

plaintiff must be in ‘‘actual dollars or other assets valued

at $250,000.’’ Itfurther concluded that ‘‘[t]he defendant’s

failure to pay to the plaintiff $100,000 upon receiving

shares of stock in his family business was not a wilful

disobedience of a clear and understandable order;

rather, it illustrates a good faith disagreement as to

what was meant in that court order. The defendant had

a good faith belief that his receipt of stock in the family

business was not the condition precedent triggering

his obligation to pay to the plaintiff $100,000. . . . The

defendant’s interpretation of the court order was reasonable and made in good faith. Any violation was

excused by what can only be a good faith dispute or

misunderstanding.’’

We begin our analysis by setting forth the relevant

legal principles and our standard of review. ‘‘Contempt

is a disobedience [of] the rules and orders of a court

which has power to punish for such an offense. . . .

Contempt may be civil or criminal in character. . . .

A civil contempt is one in which the conduct constituting the contempt is directed against some civil right of

an opposing party and the proceeding is initiated by

him. . . . [T]he punishment [for civil contempt] is

wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses

againstthe public.’’(Citation omitted; internal quotation

marks omitted.) Hardy v. Superior Court, 305 Conn.

824, 834, 48 A.3d 50 (2012); see also Eric S. v. Tiffany

S., 143 Conn. App. 1, 9, 68 A.3d 139 (2013).

‘‘[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.’’

(Citations omitted.) In re Leah S., 284 Conn. 685, 693–

94, 935 A.2d 1021 (2007); Przekopski v. Zoning Board
of Appeals, 131 Conn. App. 178, 191, 26 A.3d 657, cert.

denied, 302 Conn. 946, 30 A.3d 1 (2011); Lynn v. Lynn,

130 Conn. App. 319, 327, 23 A.3d 771 (2011); see also

Martocchio v. Savoir, 130 Conn. App. 626, 630, 23 A.3d

1282, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).

In the present case, the court articulated that its order

requiring the defendant to pay $100,000 to the plaintiff

after he received $250,000 of his inheritance ‘‘was

ambiguous because it did not specify whether the inheritance of $250,000 must be in actual dollars or other

assets valued at $250,000.’’ We are not bound by the

trial court’s assessment of the clarity of the order at

issue; rather, that presents a legal question subject to

de novo review by this court. See In re Leah S., supra,

284 Conn. 693–94; Przekopski v. Zoning Board of

Appeals, supra, 131 Conn. App. 191. Nevertheless, we

need not resolve this issue in the present case.5 Even

if we assume, without deciding, that the order was clear

and unambiguous, we conclude that the court did not

abuse its discretion in denying the plaintiff’s motion

for contempt.

In its articulation, the court stated that at the time

of the hearing on the plaintiff’s motion, ‘‘the defendant

did not possess $100,000 of cash and so was unable to

pay that sum, even if it had been due.’’ It also stated

that the defendant ‘‘had a good faith belief that his

receipt of stock in the family business was not the

condition precedent triggering his obligation to pay to

the plaintiff $100,000’’ and therefore, was a good faith

disagreement as to what was meant by the order, and

was not wilful disobedience. It concluded that ‘‘[a]ny

violation was excused by what can only be a good faith

dispute or misunderstanding.’’

At the outset, we note that ‘‘[t]he fact that an order

has not been complied with fully does not dictate that a

finding of contempt must enter.’’ Auerbach v. Auerbach,

113 Conn. App. 318, 326, 966 A.2d 292, cert. denied, 292

Conn. 901, 971 A.2d 40 (2009). ‘‘A finding of contempt

is a question of fact, and our standard of review is to

determine whether the court abused its discretion in

[finding] that the actions or inactions of the [alleged

contemnor] were in contempt of a court order. . . .

To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . [T]he credibility of witnesses,

the findings of fact and the drawing of inferences are

all within the province of the trier of fact. . . . We

review the findings to determine whether they could

legally and reasonably be found, thereby establishing

that the trial court could reasonably have concluded as

it did.’’ (Internal quotation marks omitted.) Quaranta

v. Cooley, 130 Conn. App. 835, 840–41, 26 A.3d 643

(2011); see also Adamo v. Adamo, 123 Conn. App. 38,

49–50, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d

830 (2010).
The court articulated that the defendant lacked the

ability to pay $100,000 to the plaintiff. At the hearing,

the defendant testified: ‘‘I don’t have the money to pay

[the plaintiff] right now.’’ The court’s finding, as set

forth in its articulation, was based on the evidence and

was not clearly erroneous. In making the finding of

the defendant’s inability to pay, the court credited the

defendant’s testimony. We defer to the court’s assessment of the credibility of the defendant. See Behrns v.

Behrns, 124 Conn. App. 794, 811, 6 A.3d 184 (2010) (trial

judge sole arbiter of credibility and reviewing court

unable to pass on credibility of witness). This finding

also provides us with a basis to conclude that the court’s

denial of the motion for contempt did not constitute

an abuse of discretion. ‘‘The inability of a party to obey

an order of the court, without fault on his part, is a good

defense to the charge of contempt.’’ (Internal quotation

marks omitted.) Auerbach v. Auerbach, supra, 113

Conn. App. 328; see also Ahmadi v. Ahmadi, 294 Conn.

384, 398, 985 A.2d 319 (2009) (‘‘The contemnor must

establish that he cannot comply, or was unable to do

so. . . . It is [then] within the sound discretion of the

court to deny a claim of contempt when there is an

adequate factual basis to explain the failure.’’ [Internal

quotation marks omitted.]); Brody v. Brody, 145 Conn.

App. 654, 662, 77 A.3d 156 (2013).

The court also stated in its articulation that it found

that the defendant’s interpretation of the court order

was reasonable and made in good faith, and thus did

not amount to wilful disobedience. ‘‘The contempt remedy is particularly harsh . . . and may be founded

solely upon some clear and express direction of the

court. . . . A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor’s

nonpayment was wilful. This does not mean, however,

that such a dispute or misunderstanding will preclude

a finding of wilfulness as a predicate to a judgment of

contempt. Whether it will preclude such a finding is

ultimately within the trial court’s discretion.’’ (Internal

quotation marks omitted.) Behrns v. Behrns, supra, 124

Conn. App. 808; see also Martocchio v. Savoir, supra,

130 Conn. App. 630.

At the hearing, the defendant testified: ‘‘It’s my understanding I did not have to pay that until which time I

got all my inheritance, and it was cash. [My attorney]

was aware I would be paying [the plaintiff] when I got

the liquid assets to pay her.’’ The court was free to

credit that testimony and to determine that the nonpayment was based on the defendant’s good faith dispute or

legitimate misunderstanding of the terms of the court’s

order. As such, we cannot say this constituted an abuse

of discretion.

The judgment is affirmed.
In this opinion the other judges concurred.

1 The plaintiff is now known as Terry McDonald.

2 This court has not been provided with the transcripts of the underlying

dissolution action.

3

‘‘Our law for awarding attorney’s fees in contempt proceedings is clear.

General Statutes § 46b-87 provides that the court may award attorney’s fees

to the prevailing party in a contempt proceeding. The award of attorney’s

fees in contempt proceedings is within the discretion of the court. . . . In

making its determination, the court is allowed to rely on its familiarity with

the complexity of the legal issues involved. Indeed, it is expected that the

court will bring its experience and legal expertise to the determination of

the reasonableness of attorney’s fees.’’ (Internal quotation marks omitted.)

Kravetz v. Kravetz, 126 Conn. App. 459, 471, 11 A.3d 1141 (2011).

4 Practice Book § 61-10 (b) provides in relevant part: ‘‘If the court determines that articulation of the trial court decision is appropriate, it may

remand the case pursuant to Section 60-5 for articulation by the trial court

within a specified time period. Afterremand to the trial court for articulation,

the trial court may, in its discretion, require assistance from the parties in

order to provide the articulation. Such assistance may include, but is not

limited to, supplemental briefs, oral argument and provision of copies of

transcripts and exhibits.’’ The official commentary to § 61-10 provides in

relevant part: ‘‘Subsection (b) was adopted to effect a change in appellate

procedure by limiting the use of the forfeiture sanction imposed when an

appellant fails to seek an articulation from the trial court pursuant to Section

66-5 with regard to an issue on appeal, and the court therefore declines to

review the issue for lack of an adequate record for review. In lieu of refusing

to review the issue, when the court determines that articulation is appropriate,the court may now remand the case to the trial court for an articulation

and then address the merits of the issue after articulation is provided.

The adoption of subsection (b) is not intended to preclude the court from

declining to review an issue where the record is inadequate for reasons

other than solely the failure to seek an articulation, such as, for example,

the failure to procure the trial court’s decision pursuant to Section 64-1 (b)

or the failure to provide a transcript, exhibits or other documents necessary

for appellate review.’’

Practice Book § 60-5 provides in relevant part: ‘‘If the court deems it

necessary to the proper disposition of the cause, it may remand the case

for a further articulation of the basis of the trial court’s factual findings or

decision. . . .’’

5 For this court to determine whether the order requiring the defendant

to pay $100,000 to the plaintiff following his receipt of the stock portion of

his inheritance was clear and unambiguous, we would examine the relevant

memorandum of decision that dissolved the marriage of the parties and

contained the financial orders of the court. See, e.g. McCarthy v. Custom

Design Services, Inc., 126 Conn. App. 274, 280–81, 11 A.3d 1094 (2011). The

following course of action would be our guide: ‘‘[T]he construction of a

judgment is a question of law for the court. . . . As a general rule, judgments

are to be construed in the same fashion as other written instruments. . . .

The determinative factor is the intention of the court as gathered from all

parts of the judgment. . . . The interpretation of a judgment may involve

the circumstances surrounding the making of the judgment. . . . Effect

must be given to that which is clearly implied as well as that which is

expressed.’’ (Citations omitted; emphasis added; internal quotation marks

omitted.) Lashgari v. Lashgari, 197 Conn. 189, 196–97, 496 A.2d 491 (1985);

see also Christiano v. Christiano, 131 Conn. 589, 592–93, 41 A.2d 779 (1945);

Lynn v. Lynn, supra, 130 Conn. App. 328 (‘‘[i]n [interpreting a judgment],

it assists a reviewing court to keep in mind the theory on which the case

was tried and on which the trial court decided it’’ [emphasis added; internal

quotation marks omitted]). As stated in footnote 2 of this opinion, we have

not been provided with the transcripts of the proceedings underlying the

two memoranda of decision that dissolved the parties’ marriage and contained the attendant child custody and financial orders. Without these transcripts, we are precluded from examining the circumstances surrounding

the making of the court’s judgment and the order at issue.