In January 2015, the Connecticut Supreme Court released its decision in Brody v. Brody, 315 Conn. 300 (2015). To characterize Brody as a sea change in contempt jurisprudence is an understatement. Indeed, for the first time, the Court determined that the burden of proof in civil contempt is the clear and convincing standard. In the wake of Brody, judges and family law commentators alike have proclaimed the end of the contempt finding. The common sentiment is clear: the elevated burden in Brody makes it nearly impossible to win a contempt motion. But is this accurate? Does the chasm between a fair preponderance and clear and convincing really make a difference?
Prior to Brody, Connecticut courts consistently held that a preponderance of the evidence standard should govern civil contempt proceedings. See e.g., Dickinson v. Dickinson, 143 Conn. App. 184 (2013). Under Brody, however, a “clear and convincing” evidence standard now applies. The reasoning in Brody is straightforward. The Court first looked at the seminal contempt case of Cologne v. Westfarms Associates, 197 Conn. 141 (1985), which held that “in the absence of an admission of contempt, [such a finding] had to be prove[n] by sufficient competent evidence. . . .” The Brody Court determined that this amorphous standard warranted clarification as “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.” Looking to the law in other jurisdictions, the Court reasoned that proof by clear and convincing evidence is the appropriate standard to govern indirect civil contempt. The Court concluded that a heightened standard is necessary because civil contempt sanctions may include incarceration, and also that the heightened standard “is consistent with the threshold substantive requirement that the directives of the underlying court order be ‘clear and unambiguous.’”
The elements of contempt are beyond axiomatic. Indeed, any experienced divorce lawyer knows that contempt consists of the willful violation of a clear, unambiguous order. When these elements are broken down, however, it demonstrates that Brody will likely make little practical difference. The violation has to be willful and the order has to be clear. These are largely binary questions. The parent who chooses to purchase a new car instead of paying child support has likely satisfied the willfulness standard, regardless of the burden of proof, whereas the parent who cannot pay support because he or she has been laid off from work, likely will not. Similarly, a parent who chooses to pay alimony monthly in arrears is far more likely to be found in contempt when the operative order requires a weekly payment in advance than when the order is silent on the timing of the payment. To be sure, there are many close questions of contempt, even under the fair preponderance standard. The ability to comply and the extent to which partial compliance is sufficient are always questions to which trial courts must apply their fact-finding discretion. But when dealing with the question of willfulness, isn’t the question largely black and white? If a party is determined to be willfully – meaning with deliberation and intent – in violation of a court order, won’t that finding very often be the same under both standards?
A look at a sampling of the classic contempt cases underscores the fact that in many situations contempt is contempt, regardless of the burden of persuasion. For example, in Mulholland v. Mulholland, 229 Conn. 643 (1994), Mr. Mulholland rolled the proverbial dice and paid none of his child support obligation while he appealed the underlying order, assuming that he would win the appeal. Affirming the trial court’s finding of contempt, the Supreme Court reasoned that Mr. Mulholland’s conduct had been willful, noting that he certainly had the means to pay the support given that he had just received a $130,000 fee, voluntarily paid his new wife’s premarital debts and paid for a wedding and a honeymoon. Similarly, in Eldridge v. Eldridge, 244 Conn. 523 (1998), the Court affirmed the trial court’s finding of contempt where Mr. Eldridge exercised self-help and intentionally withheld alimony from his ex-wife, based on his own non-court sanctioned determination that he was entitled to a credit. The trial court found him in contempt, reasoning that he was able to obey the court order and that his failure to do so was willful. Finally, in Legnos v. Legnos, 70 Conn. App. 349 (2002), the court found the husband in contempt for failure to make certain property distribution and support payments to his ex-wife. In finding that the conduct was willful, the trial court scrutinized the husband’s tax returns, financial affidavit and business dealings and determined that, in terms of dealing with his creditors, he had put his wife “at the bottom of the heap.”
Wouldn’t the contemnors in each of these cases have been found in contempt regardless of the burden of proof? In each instance, the conduct was willful and the orders were unambiguous. Would Mr. Mulholland have been absolved of his contempt if he had been held to the clear and convincing standard? His gamble with the appellate process seems objectively willful. Likewise, would the self-help in Eldridge have been any less contemptuous or would Ms. Legnos have been less on the “bottom of the heap”, had the husbands in those cases been held to the higher standard? This practical reality appears to have been recognized by the trial courts in the state. Indeed, Connecticut courts have continued to hold parties in contempt, despite Brody’s heightened standard. For example, in Norberg-Hurlburt v. Hurlburt, 162 Conn. App. 661 (2016), the Appellate Court affirmed the trial court’s finding of contempt where the plaintiff failed to make mortgage payments, to pay the real estate taxes, and to maintain the marital property. Similarly, in Carter v. Carter, 2015 WL 7941410, the defendant was found in contempt for failing to pay court ordered support after finding that he had not obtained gainful full-time employment, nor had he shown credible proof of a good faith employment search. In Brody v. Brody, 2015 WL 5315299, itself, the trial court found the defendant in contempt for failing to pay court ordered child support. Critically, in each of these cases, the contempt was found under the clear and convincing standard.
Moreover, it is important to also note that trial courts still have the authority to enter remedial orders absent a finding of contempt in order to make the aggrieved party whole. Clement v. Clement, 34 Conn. App. 641, 647 (1994). Cf. McGuire v. McGuire, 102 Conn. App. 79, 89 (2007). Brody does not change this. It stands to reason that since this type of remedial order is not tied to the contempt finding it is still governed by the fair preponderance standard. While a contempt finding may have some long-term stigmatic effect on the contemnor, the practical relief that the moving party in contempt proceedings seeks is to be made whole. This real-world aspect of contempt litigation remains unchanged.
It has been said that “proof by clear and convincing evidence is proof by a fair preponderance of the evidence — but we mean it.” U.S. v. Houlihan, 887 F. Supp. 352, 360 n.16 (D. Mass. 1995). To apply the academic definition, the burden of proving facts by clear and convincing evidence requires a reasonable belief that the facts asserted are “highly probably true” or that the probability of their truthfulness is “substantially greater” than the probability that they are false. Clark v. Drska, 1 Conn. App. 481, 487 (1984). By contrast, the burden of proving facts by a fair preponderance of the evidence means that the moving party must show that it is more probable than not that the issue has been proven. Id. at 485-86. In the practical application of the court’s authority in a family contempt proceeding, however, is there really a distinction between the two? Isn’t willful still willful regardless of what standard is applied? To put things plainly – despite the fanfare – does Brody really make a difference?
Campbell D. Barrett chairs the Family Law Practice at Pullman & Comley and focuses primarily on matrimonial and appellate matters. Johanna S. Katz is a litigation associate, focusing her practice on family law.