Thomasi v. Thomasi , 181 Conn. App. 822 ( 2018 )

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TRACY M. THOMASI v. EDWARD
J. THOMASI, SR.
(AC 39452)
(AC 39814)
Keller, Prescott and Bishop, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from certain postjudgment orders of the
trial court regarding the division of the defendant’s defined benefit
pension plan. She claimed that the trial court erred in determining that
the term ‘‘marital portion,’’ as used in the parties’ marital dissolution
agreement regarding a division of the defendant’s defined benefit pen-
sion plan, clearly and unambiguously provided for the coverture method
to be utilized in calculating the marital portion. The defendant filed a
separate appeal from the trial court’s postjudgment orders denying his
motion for modification of alimony and interpreting the dissolution
agreement to require him to make payments to the plaintiff from his
pension plan retroactive to the date of the dissolution. Held:
1. The trial court incorrectly determined that the language of the dissolution
agreement clearly and unambiguously provided for the coverture
method, a fractional calculation, to be utilized to determine the marital
portion: although the term marital portion was clear and unambiguous
in the sense that the parties agreed to its general meaning, the term
nevertheless contained a latent ambiguity under the specific circum-
stances of this case because the determination of that amount was not
self-defining, nor was it defined anywhere else in the agreement, and
it could be deduced by using more than one methodology, each of
which yielded a significantly different outcome, and although it was not
improper for the trial court to hear evidence from the attorney who
drafted a domestic relations order as to her normal approach for
determining the martial portion of a defined benefit plan when the
particular methodology has not been specified to her, the court’s focus
on that testimony should have been on the attorney’s knowledge of the
parties’ intent in employing the language at issue and whether the parties
were aware of her usual practice when referring this matter to her, and
the court should have permitted testimony from the parties as to their
intentions in employing the language in question; accordingly, the court
was legally incorrect in concluding that there was nothing ambiguous
about the language used, especially given the attorney’s testimony that
there is more than one methodology employed to determine the martial
portion of a defined benefit pension, and its order regarding the division
of the defendant’s defined benefit pension plan could not stand.
2. The trial court improperly denied the defendant’s motion for a modification
of alimony, which was premised on its conclusion that the defendant had
caused his loss of employment through his own fault, thereby negating
a finding of a substantial change in his financial condition necessary to
reduce his alimony obligation; that court’s factual conclusion was not
supported by the record and was clearly erroneous, as there was insuffi-
cient evidence to show that the defendant was fired, rather than mutually
separated or laid off, from his employment at a college, and the court’s
reliance on an unsigned employment separation agreement and a third
party’s revised complaint involving the defendant as evidence that the
defendant caused his own termination of employment was incorrect.
3. The defendant could not prevail on his claim that the trial court erred in
interpreting the parties’ dissolution agreement to require him to make
payments to the plaintiff from his pension plan retroactive to the date
of the marital dissolution: the agreement plainly ordered the defendant
to immediately transfer one half of the marital portion of his pension
plan as of the date of dissolution and did not state that the plaintiff
would realize her entitlement only once a domestic relations order was
put into place, and, thus, as of the date of the dissolution, the plaintiff
was entitled, as her own property, to receive one half of the marital
portion of the defendant’s monthly pension benefits; nevertheless, the
court should have adjusted the defendant’s retroactive payments for
any tax liability the defendant incurred for the portion of his pension
that was intended for the plaintiff as her share of the marital portion, and,
therefore, further proceedings were required to calculate the amount
of the defendant’s retroactive payment after adjusting for the taxes he
paid for the plaintiff’s one half of the marital portion.
Argued December 5, 2017—officially released May 15, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven at Meriden and tried to the court,
Klatt, J.; judgment dissolving the marriage and granting
certain other relief; thereafter, the court, Klatt, J.,
enforced the parties’ domestic relations order, and the
plaintiff appealed to this court; subsequently, the court,
Klatt, J., denied the plaintiff’s motion for contempt;
thereafter, the court, Klatt, J., denied the defendant’s
motion to modify alimony, and the defendant appealed
to this court; subsequently, the court, Harmon, J.,
granted the plaintiff’s motion for order. Reversed in
part; further proceedings.
Timothy J. Fitzgerald, with whom was Douglas T.
Barall, for the appellant in AC 39452 and appellee in
AC 39814 (plaintiff).
Maria F. McKeon, for the appellee in AC 39452 and
appellant in AC 39814 (defendant).
Opinion
BISHOP, J. These appeals arise from the dissolution
of marriage between the plaintiff, Tracy M. Thomasi,1
and the defendant, Edward J. Thomasi, Sr. In AC 39452,
the plaintiff appeals from the postdissolution order of
the trial court regarding the division of the defendant’s
defined benefit pension plan. In her appeal, the plaintiff
argues that the court erred in determining that the term
‘‘marital portion,’’ as used in the parties’ marital dissolu-
tion agreement regarding a division of the defendant’s
defined benefit pension plan, clearly and unambigu-
ously provided for the coverture method to be utilized
in calculating the marital portion. We conclude that
the term, under the limited circumstances of this case,
contains a latent ambiguity, and, accordingly, reverse
the judgment of the trial court.
In AC 39814, the defendant appeals from the trial
court’s postdissolution orders denying his motion for
alimony modification and interpreting the dissolution
agreement to require him to make payments to the
plaintiff from his pension plan retroactive to the date
of the marital dissolution. On this claim, he makes four
arguments that the court erred (1) by finding that he
did not experience a substantial change in his financial
circumstances justifying a downward modification in
his alimony obligation; (2) by declining to consider the
plaintiff’s receipt of settlement proceeds from a per-
sonal injury lawsuit; (3) by improperly taking into con-
sideration his receipt of a pension; and (4) by
determining that the dissolution agreement requires
him to make pension payments to the plaintiff as of the
date of the marital dissolution even though the qualified
domestic relations order (QDRO) contemplated by their
agreement was not then in place. We agree with the
trial court that a fair reading of the agreement requires
the defendant to begin making payments from his pen-
sion to the plaintiff as of the date of the dissolution.
We do not believe, however, that the record supports
the court’s finding that the defendant’s loss of employ-
ment was due to his own fault. Accordingly, we reverse
in part, and affirm in part, the orders of the trial court.
The following facts pertain to both appeals. The
defendant began working for the state of Connecticut
in November, 1967, and, as a state employee, he partici-
pated in the Connecticut state employees retirement
system, which features a defined benefit pension pro-
gram.2 The parties were married on April 5, 1991, by
which time the defendant had accrued twenty-four
years and four months of state service. The defendant
retired from state employment on June 1, 2003, after
thirty-seven years and six months of service. The mar-
riage of the parties was dissolved on July 22, 2015. Thus,
the parties were married for a total of approximately
twenty-four years and three months. Although the
defendant was employed by the state for a total of
426 months, the parties’ marriage spanned 145 months
within this period, or approximately 34 percent of the
defendant’s total period of employment with the state.
As part of the parties’ property settlement agreement,
paragraph 9B of the dissolution agreement provided:
‘‘Husband shall immediately transfer one-half of the
marital portion of [h]usband’s [s]tate of Connecticut
[p]ension [p]lan that is currently in pay status to [w]ife
valued as of the date of dissolution and including cost
of living over the payment period. This transfer shall be
by a QDRO3 that shall be drafted by Attorney Elizabeth
McMahon, with the parties splitting Attorney McMa-
hon’s fees equally. The [c]ourt will retain jurisdiction
over this entire [p]aragraph to effectuate the intent of
the parties.’’ (Footnote added.)
I
AC 39452
In this appeal, the parties do not dispute that the
term ‘‘marital portion’’ refers to the amount of pension
benefit earned during the course of the marriage, and
agree that the plaintiff is entitled to one half of that
amount. Thus, the term ‘‘marital portion’’ is not patently
ambiguous.4 The question remains, however, whether
the term, as used in the parties’ marital dissolution
agreement, contains a latent ambiguity because there
is more than one method for calculating the marital
portion of a defined benefit pension.
The following additional facts and procedural history
are relevant to the resolution of this appeal. Following
the marital dissolution, Attorney McMahon sent a letter
dated September 17, 2015, along with a drafted domestic
relations order to both parties. In the letter, Attorney
McMahon stated in relevant part: ‘‘Since the judgment
does not specify how to determine the marital portion,
I have used a coverture fraction . . . . If this approach
is not acceptable to [either party], please let me know
and then contact your attorneys for guidance.’’ The
September 17, 2015 domestic relations order prepared
by Attorney McMahon was signed by the defendant,
but not by the plaintiff. On October 26, 2015, Attorney
McMahon recirculated a revised domestic relations
order, dated September 26, 2015, which corrected a
miscalculation in the coverture formula. Later, on
December 2, 2015, Attorney McMahon sent a letter to
the parties and their prior attorneys stating in relevant
part: ‘‘The judgment does not specify how the marital
portion is to be calculated, and there is more than one
way to do so. My role is to craft an order that is consis-
tent with the judgment; I do not advocate for either
party. If the parties cannot reach an agreement on their
own, they will have to return to court for clarification
of the judgment.’’ Pursuant to a request from the defen-
dant’s prior counsel, Attorney McMahon drafted a
revised domestic relations order on January 11, 2016,
that utilized the subtraction method to calculate the
marital portion.
Following the marital dissolution and over a period
of several months, the parties, through counsel,
exchanged correspondence regarding their disagree-
ment on how to calculate the marital portion of the
defendant’s pension in accordance with the terms of
the marital dissolution agreement, and both parties filed
several motions reflecting their disagreement. In con-
junction with these exchanges, the plaintiff received a
correspondence from the State of Connecticut Retire-
ment Services Division dated December 9, 2014, which
had been sent to the defendant.5 This letter outlined
the defendant’s participation in the state employees
retirement system. The correspondence indicates that
as of April 5, 1991, the date of the parties’ marriage,
the defendant had accrued the right to receive $1833
as a monthly pension benefit upon the normal retire-
ment age of sixty-five. The letter states, as well, that
by the time the defendant retired on June 1, 2003, his
monthly benefit had risen to $5227.49. As of the date
of the parties’ marital dissolution, his monthly benefit
had risen to $6937.92 due to cost of living increases
built into the pension plan. Neither the contents nor
accuracy of this letter is disputed by the parties.
A hearing on the parties’ motions was scheduled for
May 23, 2016. At the hearing, and in response to argu-
ments that there are different methods to calculate the
‘‘marital portion’’ of the defendant’s pension benefits,
the court stated the following: ‘‘[A]s far as the court is
concerned, if Attorney McMahon, the person preparing
the qualified domestic relations order says the word
marital portion is ambiguous to her, [t]hen, I think you
have an argument. The bottom line . . . you are going
to have to have [Attorney McMahon] in here, to testify,
that [the] term is ambiguous.’’ The court further opined
that it would not permit testimony from other individu-
als until it heard from Attorney McMahon.
Consequently, on July 7, 2016, the court heard testi-
mony from Attorney McMahon. She stated that when
she first reviewed the dissolution agreement, to her,
‘‘marital portion meant one thing. . . . I have seen
other approaches in other cases. That’s not how I do
it. So I didn’t see an ambiguity initially, but . . . when a
discussion arose and I saw the parties were . . . taking
different approaches, then I thought either approach
could fit what the judgment [stated].’’ When the plain-
tiff’s counsel asked Attorney McMahon ‘‘if marital por-
tion, standing alone without any further formula or
description, was ambiguous,’’ she replied in the affir-
mative.
On cross-examination by the defendant’s counsel, the
following exchange occurred:
‘‘Q. [W]hen you get no other instruction from the
court or from the parties or you see the agreement as
you did in this, do you . . . normally use the
coverture method?
‘‘A. I do.
‘‘Q. Okay. The subtraction method, is that a method
you ever use?
‘‘A. Only if it’s specified in the judgment.’’
On that same day, the court issued an order, stating:
‘‘The court heard evidence on the motions in limine
and finds the contract in the separation agreement is
clear and unambiguous regarding [paragraph] 9B, ‘mari-
tal portion.’ The last sentence of the paragraph, the
court determines means the enforcement of the signing
of the [QDRO] by the parties. The other motions are
moot. See transcript . . . for the elaboration of the
court’s ruling and findings.’’
The transcript of the July 7, 2016 hearing reveals
that the court stated: ‘‘I see nothing ambiguous or hear
nothing and determine nothing ambiguous about the
language. It is the typical language that you see . . .
in a situation such . . . as this. . . . [T]estimony from
Attorney McMahon established just that, there is noth-
ing ambiguous. The parties agreed to use Attorney
McMahon, therefore, they agreed to use her method
of calculation and she clearly testified as to what her
method of calculation was. Moreover, [paragraph] 9C of
the parties’ agreement uses the same . . . term, marital
portion, and there’s no claim of ambiguity there.’’6 Find-
ing no ambiguity in the language of the agreement, the
court concluded that the September 26, 2015 domestic
relations order which employed the coverture method
of determining the marital portion of a monthly pension
benefit was the appropriate version to be enforced. This
appeal followed.
We begin with our standard of review. ‘‘It is well
established that a separation agreement, incorporated
by reference into a judgment of dissolution, is to be
regarded and construed as a contract. . . . Accord-
ingly, our review of a trial court’s interpretation of a
separation agreement is guided by the general princi-
ples governing the construction of contracts. . . . A
contract must be construed to effectuate the intent of
the parties, which is determined from the language used
interpreted in the light of the situation of the parties
and the circumstances connected with the transaction.
. . . If a contract is unambiguous within its four cor-
ners, the determination of what the parties intended by
their contractual commitments is a question of law.
. . . When the language of a contract is ambiguous,
[however] the determination of the parties’ intent is a
question of fact, and the trial court’s interpretation is
subject to reversal on appeal only if it is clearly errone-
ous.’’ (Citations omitted; internal quotation marks omit-
ted.) Remillard v. Remillard, 297 Conn. 345, 354–55,
999 A.2d 713 (2010).
‘‘[T]he intent of the parties is to be ascertained by a
fair and reasonable construction of the written words
and . . . the language used must be accorded its com-
mon, natural, and ordinary meaning and usage where
it can be sensibly applied to the subject matter of the
contract. . . . Where the language of the contract is
clear and unambiguous, the contract is to be given effect
according to its terms. A court will not torture words
to import ambiguity where the ordinary meaning leaves
no room for ambiguity . . . . Similarly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms.’’ (Internal quotation marks
omitted.) Watkins v. Watkins, 152 Conn. App. 99, 104,
96 A.3d 1264 (2014). ‘‘A word is ambiguous when it is
capable of being interpreted by reasonably well
informed persons in either of two or more senses. . . .
Ambiguous can be defined as unclear or uncertain, or
that which is susceptible of more than one interpreta-
tion, or understood in more ways than one.’’ (Internal
quotation marks omitted.) Flaherty v. Flaherty, 120
Conn. App. 266, 269, 990 A.2d 1274 (2010).
As noted, the plaintiff asserts that she believed the
parties intended to calculate the domestic relations
order by utilizing the subtraction method. Attorney
McMahon testified that determination of the marital
portion by this method involves taking ‘‘the benefit
earned as of the date of marriage and subtract[ing] it
from the benefit earned as of the date of divorce. . . .
[T]he difference would be what they call the marital
portion.’’ See generally E. Brandt, ‘‘Valuation, Alloca-
tion, and Distribution of Retirement Plans at Divorce:
Where Are We?’’ 35 Fam. L.Q. 469, 476–81 (2001); M.
Snyder, ‘‘Challenges in Valuing Pension Plans,’’ 35 Fam.
L.Q. 235, 249 (2001).
In her postjudgment motions, the plaintiff, using the
subtraction method for determining the marital portion
of the defendant’s pension and the data provided by
the State Retirement Services Division, determined that
the defendant’s pension benefit had increased by
$5104.92 (benefit on date of marital dissolution less
accrued benefit on date of marriage) and therefore, her
marital portion is half that amount, or $2552.46. On the
basis of these calculations and by application of the
subtraction method, the plaintiff asserted that her share
of the defendant’s monthly pension benefit as of the
date of the marital dissolution should be 36.7 percent
of the defendant’s total pension equaling $2552.46.
The defendant does not dispute the mathematical
consequences of applying the subtraction method for
determining the marital portion of a defined benefit
pension plan. He disputes only the propriety of utilizing
this approach. Thus, it is not disputed that the defen-
dant’s premarital monthly pension value was $1833 as
of the date of the marriage and that his pension benefit
had risen to $6937.92 as of the date of the marital disso-
lution. Subtracting the lesser from the greater results
in a marital portion of $5104.92, representing the
increase in benefit accrued during the course of the
marriage. One half of this amount is $2552.46 or 36.7
percent of the total monthly pension payment due to
the defendant as of the date of the marital dissolution.
As discussed earlier in this opinion, this calculation
was reflected in Attorney McMahon’s January 11, 2016
domestic relations order draft prepared at the behest
of the defendant.7
In contrast, the defendant contends that the parties
agreed to execute the September 26, 2015 domestic
relations order initially drafted by Attorney McMahon,
in which she employed the coverture method of
determining the marital portion. There, the defendant
indicates that Attorney McMahon used ‘‘the marital por-
tion of the defendant’s [s]tate of Connecticut [p]ension
[p]lan calculated using the fraction where the numera-
tor equals the number of months married during the
years of employment by the defendant and the denomi-
nator equals the total years of credited service for the
[defendant’s] employment by the [s]tate of Connecti-
cut.’’ Attorney McMahon testified that the determina-
tion of the marital portion by this method involves:
‘‘[Taking] the years of benefits accrued during the mar-
riage over the total years of benefits accrued as of the
date of divorce and then multiply that times the benefit
earned as of date of divorce and that would give you
the marital portion.’’8 Under the coverture fraction, as
calculated by Attorney McMahon and recited in her
September 17, 2015 letter to the parties, the plaintiff’s
one half of the marital portion of the monthly pension
payment would be $1180.83, or 17.02 percent of the
defendant’s total pension entitlement as of the date of
marital dissolution.9
As noted, the different methods of calculation in this
instance yield substantially different portions of the
pension benefits to the plaintiff. The plaintiff argues
that the court erred when it concluded that the language
was clear and unambiguous because Attorney McMa-
hon’s preferred methodology for determining the mari-
tal portion of a pension is not set forth in paragraph
9B of the dissolution agreement. In short, the plaintiff
asserts that the court’s reference to factors outside of
the language utilized in the agreement is a demonstra-
tion itself that the language is not clear and unambigu-
ous and is ‘‘susceptible to more than one reasonable
interpretation.’’ From the record, and notwithstanding
the court’s conclusion, Attorney McMahon’s testimony
plainly supports this conclusion. Nevertheless, the
defendant maintains that the court properly found that
paragraph 9B of the dissolution agreement unambigu-
ously provided for the domestic relations order to be
drafted by Attorney McMahon using the coverture frac-
tion on the basis of her testimony that this is the
approach she routinely utilizes in drafting pension divi-
sion orders.
‘‘A latent ambiguity arises from extraneous or collat-
eral facts which make the meaning of a written instru-
ment uncertain although the language thereof be clear
and unambiguous. The usual instance of a latent ambi-
guity is one in which a writing refers to a particular
person or thing and is thus apparently clear on its face,
but upon application to external objects is found to fit
two or more of them equally.’’ (Internal quotation marks
omitted.) Heyman Associates No. 1 v. Ins. Co. of Penn-
sylvania, 231 Conn. 756, 782, 653 A.2d 122 (1995). That
is precisely the circumstance the court faced in the
case at hand. Here, the ambiguity of the term ‘‘marital
portion’’ arises not from the language of the contract
itself, but instead from the fact, gleaned from extrane-
ous evidence, that there is more than one method for
determining the marital portion of a defined benefit
plan. The evidence adduced at the hearing on this issue
demonstrates that computations utilizing the two meth-
odologies result in significantly different outcomes in
terms of the monthly payments to be received by the
nonemployee spouse and, reciprocally, the amount of
the monthly benefit to be retained by the employee
spouse.
The court determined that the term ‘‘marital portion’’
was unambiguous, not on the basis of the language
itself, but on the basis that Attorney McMahon, the
expert whose services the parties agreed to effectuate
their pension agreement, typically uses the coverture
method. Although we conclude that the term ‘‘marital
portion’’ is clear and unambiguous in the sense that the
parties agree to its general meaning, the term, neverthe-
less, contains a latent ambiguity under the specific cir-
cumstances of this case.
On the basis of our review of the dissolution
agreement, we conclude that the trial court incorrectly
determined that the language in paragraph 9B is clear
and unambiguous. The term ‘‘marital portion’’ of the
defendant’s pension contains a latent ambiguity
because the determination of that amount is not self-
defining and can be deduced by using more than one
methodology, each of which yields a significantly differ-
ent outcome. Also, the term ‘‘marital portion’’ is not
elsewhere defined in the dissolution agreement. As
noted, although Attorney McMahon expressed a prefer-
ence for utilizing the coverture method for determining
the marital portion of a pension, she, with equal clarity,
also acknowledged the legitimacy of the use of the
subtraction option for making such a determination.10
Because the term ‘‘marital portion’’ can be reasonably
susceptible to more than one method of calculation not
specified in the parties’ agreement, a latent ambiguity
exists in the parties’ agreement.
In its decision to rely on extrinsic evidence to resolve
the parties’ disagreement as to the import of the term
‘‘marital portion,’’ the court’s focus on Attorney McMa-
hon’s usual practice was misplaced. Rather, the task of
the court in resolving the ambiguity was to discern the
intent of the parties in employing the language at issue.11
See Buell Industries, Inc. v. Greater New York Mutual
Ins. Co., 259 Conn. 527, 546 n.17, 791 A.2d 489 (2002)
(‘‘[E]xtrinsic evidence may be introduced to clarify the
meaning of terms in an integrated contract. . . . Such
evidence may not be used, however, once the terms
are found to have a clear and unambiguous meaning
. . . .’’ [Citation omitted; emphasis omitted.]). Although
it was not inappropriate for the court to hear evidence
from Attorney McMahon as to her normal approach for
determining the marital portion of a defined benefit
plan when the particular methodology has not been
specified to her, the focus of this testimony should have
been on Attorney McMahon’s knowledge of the parties’
intent in employing the language at hand and whether
the parties were aware of her usual practice when refer-
ring this matter to her. The court should also have
permitted testimony from the parties as to their inten-
tions in employing the language in question.
And yet, notwithstanding the testimony from Attor-
ney McMahon that there is more than one methodology
employed to determine the marital portion of a defined
benefit pension, the court concluded that there was
‘‘nothing ambiguous about the language’’ because the
parties agreed to use Attorney McMahon. In reaching
this conclusion, the court was legally incorrect.12
Accordingly, the trial court’s postjudgment order
regarding the division of the defendant’s defined benefit
pension plan cannot stand.
II
AC 39814
As noted previously in this opinion, in AC 39814, the
defendant claims that the court incorrectly denied his
motion for alimony modification and interpreted the
dissolution agreement to require him to make payments
to the plaintiff from his pension plan retroactive to the
date of the marital dissolution. We review each of his
claims in turn.
At the outset, we note the following additional perti-
nent facts and procedural history. In her March 18, 2016
motion for contempt, the plaintiff requested, due to the
fact that the domestic relations order had not been
completed, that the defendant be ordered to make retro-
active payments for her portion of his monthly pension
benefits effective as of July 22, 2015, the date of the
marital dissolution judgment. The court conducted a
hearing on September 27, 2016, in which the parties
testified and provided argument on the issues of retro-
active payments and attorney’s fees in response to the
plaintiff’s motion. The court issued a memorandum of
decision on October 6, 2016, in which it determined
that the plaintiff’s portion of the defendant’s monthly
pension benefits ‘‘are a property distribution and the
amount to be calculated as owed to the plaintiff is to
be calculated from the date of dissolution.’’ The court
declined to grant either parties’ requests for attorney’s
fees. The court denied the defendant’s subsequent
motion to reconsider and/or reargue.
Additionally, on June 24, 2016, the defendant filed a
motion to modify alimony alleging a substantial change
in his circumstances due to a loss of employment. The
defendant filed an amended motion to modify alimony
on October 24, 2016, additionally alleging that the plain-
tiff had a significant increase in her income due to her
receipt of a settlement stemming from a claim she had
made in an unrelated civil litigation. Following a hearing
on November 3, 2016, the court determined that because
the defendant ‘‘was clearly not laid off’’ and that it
was his ‘‘own fault that he’s no longer employed,’’ his
attendant loss of earnings could not be considered in
assessing whether he had experienced a substantial
change in his financial circumstances. The court further
articulated that it considered the defendant’s receipt of
monthly pension benefits as income. The court deter-
mined, as well, that the receipt by each party of certain
settlement proceeds from civil litigation should not be
considered in assessing whether either had experienced
a substantial change in financial circumstances after
their marital dissolution because it was ‘‘property distri-
bution.’’ Thus, the court denied the defendant’s motion
to modify alimony in an order dated November 3, 2016.
This appeal followed.
A
We first address the court’s denial of the defendant’s
motion to modify alimony. On appeal, the defendant
claims that the court incorrectly determined that he
caused his own loss of employment and therefore that
factor could not be considered in assessing his quest
for a reduction of his alimony obligation. The defendant
claims, as well, that the court erred in declining to
consider the plaintiff’s receipt of lawsuit settlement
proceeds in assessing whether she had experienced an
upward change in her financial circumstances. Finally,
the defendant asserts that the court should not have
considered his receipt of pension benefits as income
for purposes of assessing his motion for a modification
of alimony. We conclude that the record does not sup-
port the court’s conclusion that the defendant caused
his own loss of employment through his own fault.
Therefore, the court’s order denying the defendant’s
motion for a modification of alimony premised on this
conclusion cannot stand.
Our legal principles and standard of review governing
the modification of an award of alimony are well estab-
lished. ‘‘Our review of a trial court’s granting or denial
of a motion for modification of alimony is governed by
the abuse of discretion standard. . . . To the extent
that the trial court has made findings of fact, our review
is limited to deciding whether such findings were clearly
erroneous. . . . 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. . . . Trial courts
have broad discretion in deciding motions for modifica-
tion.’’ (Internal quotation marks omitted.) Spencer v.
Spencer, 177 Conn. App. 504, 526, 173 A.3d 1 (2017),
cert. granted, 328 Conn. 903, 177 A.3d 565 (2018). ‘‘A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Because it is the trial court’s function to weigh
the evidence and determine credibility, we give great
deference to its findings. . . . In reviewing factual find-
ings, [w]e do not examine the record to determine
whether the [court] could have reached a conclusion
other than the one reached. . . . Instead, we make
every reasonable presumption . . . in favor of the trial
court’s ruling.’’ (Internal quotation marks omitted.) Ack-
erman v. Sobol Family Partnership, LLP, 298 Conn.
495, 507–508, 4 A.3d 288 (2010).
Modification of alimony in this case is governed by
General Statutes § 46b-86 (a),13 and the party seeking
the modification has the burden of proving a substantial
change in circumstances of either party. Spencer v.
Spencer, supra, 177 Conn. App. 526–27. ‘‘When pre-
sented with a motion for modification, a court must
first determine whether there has been a substantial
change in the financial circumstances of one or both
of the parties. . . . Second, if the court finds a substan-
tial change in circumstances, it may properly consider
the motion and, on the basis of the . . . § 46b-82 crite-
ria, make an order for modification. . . . The court has
the authority to issue a modification only if it conforms
the order to the distinct and definite changes in the
circumstances of the parties. . . . Simply put, before
the court may modify an alimony award pursuant to
§ 46b-86 [a], it must make a threshold finding of a sub-
stantial change in circumstances with respect to one
of the parties. . . . A finding of a substantial change
in circumstances is subject to the clearly erroneous
standard of review.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 527.
‘‘A conclusion that there has been a substantial
change in financial circumstances justifying a modifica-
tion of alimony based only on income is erroneous;
rather, the present overall circumstances of the parties
must be compared with the circumstances existing at
the time of the original award to determine if there
has been substantial change.’’ (Internal quotation marks
omitted.) Coury v. Coury, 161 Conn. App. 271, 283, 128
A.3d 517 (2015). Lastly, ‘‘[t]o qualify as a substantial
change in circumstances, a change or alleged inability
to pay must be excusable and not brought about by
the defendant’s own fault.’’ (Internal quotation marks
omitted.) Tittle v. Skipp-Tittle, 161 Conn. App. 542, 551,
128 A.3d 590 (2015); see also Sanchione v. Sanchione,
173 Conn. 397, 407, 378 A.2d 522 (1977) (‘‘‘Inability to
pay’ does not automatically entitle a party to a decrease
of an alimony order. It must be excusable and not
brought about by the defendant’s own fault. There is
no way to determine simply from the affidavits and
finding what factors the court considered . . .
whether his inability to pay was a result of his own
extravagance, neglect, misconduct or other unaccept-
able reason . . . .’’).
Accordingly, in order to demonstrate a substantial
change in financial circumstances, a party seeking a
reduction of alimony based on a loss of income has the
burden of proving not only the loss of earnings but that
the inability to pay ‘‘must be excusable and not brought
about by the defendant’s own fault.’’ (Internal quotation
marks omitted.) Tittle v. Skipp-Tittle, supra, 161 Conn.
App. 551. Here, the defendant testified that he was laid
off from his position as director of facilities at Albertus
Magnus College (college) on April 5, 2016, where he
had been earning just over $75,000 per year, and that
he has been unable to find employment since then. On
cross-examination, the defendant acknowledged that a
former coworker had brought a pending civil action
against him and the college. As evidence of this claim,
the plaintiff filed a copy of the revised complaint in
that action. The plaintiff also filed a copy of a proposed
separation agreement and letter from the college, dated
April 5, 2016, addressed to the defendant. Although
a representative of the college signed the separation
agreement, the defendant did not. The letter states in
relevant part: ‘‘This will confirm the discussion that we
had today to the effect that your employment with [the
college] is terminated as of the close of business today
. . . . If you decline to execute the [separate
agreement] . . . the [c]ollege’s offer to enter into the
[separation agreement] will automatically be rescinded
as of the close of business on April 26, 2016.’’ The
defendant testified that he did not sign the agreement
because he ‘‘wasn’t sure [he] agreed with the sever-
ance.’’14 Thereafter, the defendant received unemploy-
ment compensation for twenty-six weeks. The
defendant testified that he has continued to seek
employment since being terminated by the college but
without success.
The defendant testified that he believes he lost his
job because his position was being cut by the college.
He further stated that the college did not object to
his collection of unemployment, which he understood
would have been unavailable to him had he been fired.
In response to plaintiff’s counsel’s inquiries as to
whether he thought he was at fault for the termination
of his employment, the defendant asserted that he was
not. The defendant also stated that there were no repri-
mands or criticisms against him in his personnel file at
the college.
At the end of the hearing, the court calculated that
the defendant received a total gross annual income
of $92,560 based upon his social security and pension
benefits. The court also stated: ‘‘And, quite frankly, I
credit the evidence that shows that [the defendant] was
clearly not laid off, and I find that [it is] the defendant’s
own fault that he’s no longer employed and making this
$75,000 per year. . . . To qualify for a substantial
change in circumstances, a change or alleged inability
to pay must be excusable and not brought about by the
defendant’s own fault. I find credible testimony that it
clearly was brought about by his own fault. There’s
evidence of [the college’s] letter . . . . There’s evi-
dence regarding the revised [c]omplaint. . . . [H]is
actions ultimately led to what was clearly . . . an offer
to either retire or get fired. He was clearly not laid off
as he testified to. So I’m making a finding that any
reduction in his income was at the fault of the defen-
dant.’’ The court concluded that the defendant had not
met his burden in demonstrating a significant change
in financial circumstances as to warrant a modification
and, accordingly, denied his motion to modify alimony.
As the party seeking the modification, the defendant
had the burden of proving a substantial change in his
financial circumstances. It is undisputed that the defen-
dant is no longer employed by the college, resulting in
a loss of income of approximately $75,000 per year.
Evidence and testimony was presented during the hear-
ing to support this claim. The court also credited the
defendant’s testimony that he had been actively seeking
alternative employment.
In opposition to the defendant’s motions to modify
alimony, the plaintiff submitted the revised complaint
against him and the college, the proposed separation
agreement between him and the college, which the
defendant never signed, and an accompanying letter.
This evidence was proffered to demonstrate that the
change in the defendant’s circumstances was not excus-
able because it was brought about by his own fault.
Although the court correctly opined that a party who
suffers a diminution in earnings through his or her own
fault is not thereby entitled to a reduction of an alimony
obligation, there was no credible evidence adduced at
the hearing on the motion to modify that the defendant,
in fact, lost his employment with the college through
his own fault.15 Thus, from our careful review of the
record, we conclude that the court’s factual conclusion
that the defendant caused his discharge from employ-
ment through his own fault finds no support in the
record. The court’s reliance on an unsigned employ-
ment separation agreement and a third party’s revised
complaint as evidence that the defendant caused his
own termination of employment was incorrect. In sum,
innuendo aside, whether the defendant was laid off
or terminated by the college, there was no evidence
presented to the court that the defendant’s loss of
employment was due to his own fault.
As noted, the defendant testified that his personnel
file from the college, which was available during the
hearing, contained no reprimands or criticisms regard-
ing his service to the college. The submission of a
revised complaint from a former coworker that named
the defendant, the college, and others as parties and
contained claims for workers’ compensation retaliation
and infliction of emotional distress, was merely an
unproved allegation without any supporting evidence.
As such, the mere allegations set forth in this complaint
could not suffice as any proof of culpable behavior by
the defendant during his employment with the college.
Moreover, the complaint contains no allegation that the
defendant was terminated due to his own fault.16
In response, the plaintiff cites this court’s opinion in
Tittle v. Skipp-Tittle, supra, 161 Conn. App. 546, 551,
in which a panel of this court determined that evidence
showing the party seeking a modification of alimony
had been arrested for stalking and for violating a protec-
tive order provided a sufficient basis for determining
that any change in her financial circumstances had been
caused by her own fault. The facts in Tittle and those
we face in the present case, however, are not parallel. In
Tittle, the court could reasonably consider the moving
party’s arrests as evidence of fault, because in order
for the arrests to occur an independent magistrate had
to have found probable cause of culpable conduct. In
the case at hand, however, the court was confronted
with mere allegations without any factual support.
In sum, although we recognize it is the duty of a
moving party in a motion to modify alimony or support
to demonstrate that an inability to pay is not due to his
or her own ‘‘extravagance, neglect, misconduct or other
unacceptable reason’’; Sanchione v. Sanchione, supra,173 Conn. 407; the court’s conclusion in this matter that
the defendant was at fault for his loss of employment
finds no factual support in the record.
After reviewing the record, we are ‘‘left with the defi-
nite and firm conviction that a mistake has been com-
mitted.’’ (Internal quotation marks omitted.) Spencer v.
Spencer, supra, 177 Conn. App. 513–14. Although the
court, as the fact finder, is free to weigh and interpret
evidence and determine credibility; see Watrous v.
Watrous, 108 Conn. App. 813, 823, 949 A.2d 557 (2008);
there was insufficient evidence to show that the defen-
dant was fired, rather than mutually separated or laid
off, from his employment with the college. Even if we
make every reasonable presumption in favor of the
court’s ruling, the record simply does not support the
court’s finding that the defendant lost his employment
through his own fault. Accordingly, we conclude that
the court’s determination that the defendant caused his
own termination of employment was clearly erroneous
as it was not supported by any evidence in the record.
Cf. Bauer v. Bauer, 173 Conn. App. 595, 606, 164 A.3d
796 (2017) (trial court’s findings that defendant was
not culpable for his termination of employment were
supported by record and court concluded that defen-
dant proved substantial change in circumstances).
In conjunction with the court’s denial of his motion
to modify alimony, the defendant also claims that the
court should have considered the plaintiff’s receipt of
the proceeds from a personal injury claim and the court
should not have taken into account his receipt of pen-
sion benefits.17 We are unpersuaded by either claim. As
to the plaintiff’s receipt of the proceeds from a personal
injury claim, the parties dealt specifically with this topic
in their marital dissolution agreement. Paragraph 9G
states as follows: ‘‘Any funds received by either party
from his or her pending personal injury law suits shall
be retained by that party free and clear from any claim
of the other.’’ Because this contingency was provided
for in the parties’ agreement, it was well within the
court’s discretion to disregard the plaintiff’s subsequent
receipt of the anticipated funds. See Ceddia v. Ceddia,
164 Conn. App. 266, 271, 137 A.3d 830 (2016) (‘‘[a]n
appellate court will not disturb a trial court’s orders in
domestic relations cases unless the court has abused
its discretion or it is found that it could not reasonably
conclude as it did, based on the facts presented’’ [inter-
nal quotation marks omitted]).
Finally, in assessing the defendant’s motion to modify
alimony, it was appropriate for the court to consider
his present overall circumstances in assessing whether
he had experienced a substantial change in his financial
condition. Accordingly, in taking the defendant’s receipt
of pension benefits into consideration, the court com-
mitted no error.18 See Krafick v. Krafick, 234 Conn.
783, 804–806, 663 A.2d 365 (1995); see also Dinunzio
v. Dinunzio, 180 Conn. App. 64, 72–75, A.3d
(2018).
Therefore, the court’s order denying the defendant’s
motion for modification of alimony cannot stand and
further proceedings are necessary.19
B
We next address the issue of whether the court prop-
erly determined that the dissolution agreement pro-
vided for the plaintiff’s receipt of pension benefits from
the defendant as of the date of the marital dissolution.
The defendant claims that because the dissolution
agreement contemplated the preparation of a domestic
relations order to effectuate the parties’ pension
agreement, the court’s order for a division of pension
benefits would only become operable once such an
order was put in place and that there was no provision
in the judgment requiring him to make interim pay-
ments. The plaintiff responds that the language of the
agreement and judgment provide for her receipt of pen-
sion benefits to take place immediately following the
judgment and, thus, she is entitled to retroactive pay-
ments for the period of time between the date of the
dissolution and the effective date of the domestic rela-
tions order (gap period).
We restate our standard of review when interpreting
the language of a marital dissolution agreement. ‘‘If a
contract is unambiguous within its four corners, the
intent of the parties is a question of law, requiring ple-
nary review. . . . If, however, a contract is ambiguous,
the clearly erroneous standard of review is used
because the intent of the parties is a question of fact.’’
(Citation omitted.) Kremenitzer v. Kremenitzer, 81
Conn. App. 135, 140, 838 A.2d 1026 (2004).
The relevant section of the dissolution agreement,
paragraph 9B, bears repeating: ‘‘Husband shall immedi-
ately transfer one-half of the marital portion of [h]us-
band’s [s]tate of Connecticut [p]ension [p]lan that is
currently in pay status to [w]ife valued as of the date
of dissolution and including cost of living over the pay-
ment period. This transfer shall be by a QDRO that shall
be drafted by Attorney Elizabeth McMahon . . . .’’
(Emphasis added.)
We are unpersuaded by the defendant’s contention
that the parties ‘‘negotiated the agreement to provide
that payments begin after the [domestic relations order]
was put in place.’’ The dissolution agreement plainly
states that the defendant ‘‘shall immediately transfer’’
one half of the marital portion of his pension plan as
of the date of dissolution. The agreement does not state
that the plaintiff would realize her entitlement only once
the domestic relations order was put in place.
It is well established that pension benefits are a form
of property. See Cifaldi v. Cifaldi, 118 Conn. App. 325,
331, 983 A.2d 293 (2009). In Cifaldi, this court opined:
‘‘A QDRO is merely an administrative tool used to effec-
tuate the transfer of marital property, in this case pen-
sion benefits, from an employee to a nonemployee
spouse.’’ Id., 332. ‘‘Given the well recognized impor-
tance of pension benefits as a piece of marital property,
the obvious significance of pension benefits to any prop-
erty allocation made as part of a dissolution judgment
and the expectations of the parties to that judgment,
we do not read the parties’ agreement . . . to make the
vesting of the plaintiff’s property interest in a portion
of the defendant’s pension benefits to be in some way
contingent on the successful processing of the QDROs.
To put it simply, we conclude that the plaintiff’s prop-
erty interest in portions of the defendant’s pension ben-
efits was not predicated on the processing of paperwork
. . . .’’ (Footnote omitted.) Id., 332–33. The reasoning
of Cifaldi is applicable to the circumstances at hand.
We disagree with the defendant’s perspective, in which
a party could reduce his or her liability to the other
party by simply delaying the processing of the domestic
relations order. Accordingly, as of the date of the disso-
lution, the plaintiff was entitled, as her own property, to
receive one half of the marital portion of the defendant’s
monthly pension benefits. Her entitlement was not con-
tingent on a successfully executed domestic relations
order.
The defendant further contends that the court failed
to adjust for taxes when it ordered retroactive payments
for the gap period. As a result, he asserts that he is
required to pay the plaintiff a disproportionate amount
from each pension payment because of federal and state
tax withholdings. In response, the plaintiff states that
‘‘an appropriate tax adjustment can be fashioned’’ once
the marital portion and the dollar amount of the post-
judgment payments during the gap period have been
calculated, and the defendant establishes the amount of
taxes he has already paid. We agree that the defendant’s
retroactive payments should be adjusted for any tax
liability he incurred for the portion of his pension that
was intended for the plaintiff as her share of the marital
portion. See Cifaldi v. Cifaldi, supra, 118 Conn. App.
336 (‘‘court could . . . determine the amount of taxes,
if any, that the defendant paid on the overpayments he
received and reduce the plaintiff’s remuneration
accordingly’’).
The court’s order regarding the pension is incom-
plete, as the retroactive amount must be determined
once the court determines, after a hearing, the amount
due to the plaintiff and then adjusts that amount for
taxes the defendant has already paid on the portion to
be received by the plaintiff.
In AC 39452, the judgment is reversed and the case
is remanded for further proceedings consistent with
this opinion. In AC 39814, the court’s order denying the
defendant’s modification of alimony is reversed and the
case is remanded for further proceedings according to
law; the court’s order regarding the pension is reversed
in part and the case is remanded for further proceedings
consistent with this opinion; the order regarding the
pension is affirmed in all other respects.
In this opinion the other judges concurred.
1
The plaintiff is now known as Tracy Andreoli.
2
Generally, a defined benefit pension plan is one in which the periodic
benefit to be provided to an employee participant is stated, in plan docu-
ments, in terms of a formula based on the employee’s earnings, length of
employment service and the plan’s vesting requirements. In contrast, a
defined contribution plan is one which sets forth, in some specified manner,
the amount of the employer’s periodic contribution to an employee’s retire-
ment plan. In sum, one defines the benefit to be received; the other the
contribution to be made.
3
A qualified domestic relations order, or QDRO, is ‘‘an order of the court
assigning to an alternate payee, in compliance with the Internal Revenue
Code, 26 U.S.C. § 414 (p), the Employee Retirement Income Security Act
of 1974, 29 U.S.C. § 1056 (d) (3), and General Statutes § 46b-81, a portion
or all of the benefits payable to a participant in a retirement plan.’’ Kreme-
nitzer v. Kremenitzer, 81 Conn. App. 135, 136 n.1, 838 A.2d 1026 (2004). A
QDRO ‘‘is the exclusive means by which to assign to a nonemployee spouse
all or any portion of pension benefits provided by a plan that is governed
by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.’’
(Internal quotation marks omitted.) Richman v. Wallman, 172 Conn. App.
616, 617 n.1, 161 A.3d 666 (2017).
We note, however, that the procedures set forth in the United States Code
for a QDRO do not apply to a governmental pension plan, such as the
Connecticut state employees retirement systems. See 29 U.S.C. § 1003 (b)
(1). Accordingly, a ‘‘qualified domestic relations order’’ does not apply to
the defendant’s state government pension plan. Neither the parties nor the
court has claimed any impropriety in the characterization of the QDRO in
the dissolution agreement; accordingly, we only note the mischaracterization
and will refer to the QDRO as a ‘‘domestic relations order’’ in this opinion.
See Bender v. Bender, 258 Conn. 733, 738 n.3, 785 A.2d 197 (2001); accord
Krafick v. Krafick, 234 Conn. 783, 786–87 n.4, 663 A.2d 365 (1995); Hansen
v. Hansen, 80 Conn. App. 609, 612–13 n.2, 836 A.2d 1228 (2003).
4
‘‘A patent ambiguity is evident on the face of the contract, from the
language of the contract itself . . . .’’ (Footnote omitted.) 17A C.J.S., Con-
tracts § 388 (2018).
5
We note that the letter states in relevant part: ‘‘Please be advised that
[the state employees retirement system] is a governmental retirement plan
and, as such, is exempt under United States Code, Title 29, Section 1003
from the federal requirements of the Employee Retirement Security Act
(ERISA) as they pertain to a Qualified Domestic Relations Order. However,
[the state employees retirement system] will divide a member’s benefit in
recognition of child or spousal support obligations when so ordered by a
Connecticut court . . . .’’ See footnote 3 of this opinion.
6
Paragraph 9C of the parties’ marital dissolution agreement concerns the
division of the parties’ retirement accounts. There, the parties agreed to
equalize the marital portions of their retirement accounts valued as of the
date of dissolution by a transfer of a sum certain from the defendant’s defined
contribution plan to the plaintiff. Because the amount to be transferred was
specified, the use of the term ‘‘marital portions’’ in this paragraph is merely
descriptive and not operational.
7
We note that the January 11, 2016 domestic relations order utilizing
the subtraction method was requested by the defendant’s prior counsel.
Furthermore, evidence in the record shows that the defendant’s prior counsel
gave the calculations to Attorney McMahon via an e-mail correspondence
on January 11, 2016.
8
‘‘The numerator of [the coverture] fraction is the number of months
between the commencement of the employee-spouse’s employment (or
other date on which earning of the subject benefit was commenced) and
the date of dissolution. The denominator of the fraction is the total number
of months between the commencement of the accumulation of the benefit
and the date on which the options first become exercisable, or the pension
or other benefit becomes payable. The resulting portion of the total options
granted represents the amount earned during the marriage.’’ (Footnote omit-
ted.) A. Rutkin, S. Oldham & K. Hogan, 7 Connecticut Practices Series:
Family Law (3d Ed. 2010) § 29:6, p. 608.
For a general discussion on classification, valuation and distribution of
pension benefits, see Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (1995).
See generally 24 Am. Jur. 2d, Divorce and Separation § 551 (2018) (alternative
methods of valuing and distributing pension rights); 27C C.J.S., Divorce
§ 969 (2018) (valuation and allocation of pensions).
9
Attorney McMahon divided 145 months (months of service from April
5, 1991 [date of marriage] to June 1, 2003 [retirement date]) by 426 months
(months of service from November 27, 1967 [date of employment] to June
1, 2003). This resulted in a marital portion of 34.04 percent, of which one
half is 17.02 percent.
10
Although there are different methods in calculating a marital portion;
see, e.g., E. Brandt, supra, 35 Fam. L.Q. 472–81; we note that ‘‘there is no
set formula that a court must follow when dividing the parties’ assets,
including pension benefits.’’ (Internal quotation marks omitted.) Kent v.
DiPaola, 178 Conn. App. 424, 435, 175 A.3d 601 (2017). For a detailed
discussion on the coverture fraction and comparison to the present value
difference method (subtraction method), see 2 B. Turner, Equitable Distribu-
tion of Property (3d Ed. 2005) § 6.25, p. 149–63.
A search of other jurisdictions reveals that Washington appellate courts
have debated the use of the coverture fraction and subtraction method. See
generally In re Marriage of Rockwell, 141 Wn. App. 235, 253–54, 170 P.3d
572 (2007), review denied, 163 Wn. 2d 1055, 187 P.3d 752 (2008); In re
Chavez, 80 Wn. App. 432, 436, 909 P.2d 314, review denied, 129 Wn. 2d 1016,
917 P.2d 576 (1996).
11
In Ranfone v. Ranfone, 119 Conn. App. 341, 346, 987 A.2d 1088 (2010),
this court affirmed the trial court’s application of latent ambiguity to the
interpretation of its original pension order in a marital dissolution action.
‘‘[L]atent ambiguities are those which appear only as the result of extrinsic
or collateral evidence showing that a word, thought to have but one meaning,
actually has two or more meanings. . . . Latent ambiguities [can] be shown
and explained by pleading and parol proof.’’ (Internal quotation marks omit-
ted.) Id. See also Kronholm v. Kronholm, 16 Conn. App. 124, 131, 547 A.2d
61 (1988) (‘‘[e]xtrinsic evidence is admissible to assist the court in resolving
the question of intent where the terms of a contract are either latently or
patently ambiguous’’).
12
We leave to the trial court, on remand, the determination of whether
the court, in conjunction with resolving the meaning of the term utilized
for purpose of the pension division, must then reconsider all of its financial
orders under the mosaic doctrine. ‘‘Individual financial orders in a dissolu-
tion action are part of the carefully crafted mosaic that comprises the entire
asset reallocation plan. . . . Under the mosaic doctrine, financial orders
should not be viewed as a collection of single disconnected occurrences,
but rather as a seamless collection of interdependent elements. Consistent
with that approach, our courts have utilized the mosaic doctrine as a remedial
device that allows reviewing courts to remand cases for reconsideration of
all financial orders even though the review process might reveal a flaw only
in the alimony, property distribution or child support awards.’’ (Internal
quotation marks omitted.) Barcelo v. Barcelo, 158 Conn. App. 201, 226, 118
A.3d 657, cert. denied, 319 Conn. 910, 123 A.3d 882 (2015).
‘‘Every improper order, however, does not necessarily merit a reconsidera-
tion of all of the trial court’s financial orders. A financial order is severable
when it is not in any way interdependent with other orders and is not
improperly based on a factor that is linked to other factors. . . . In other
words, an order is severable if its impropriety does not place the correctness
of the other orders in question.’’ (Citation omitted; internal quotations marks
omitted.) Id.13
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support, an order for alimony
. . . may, at any time thereafter, be continued, set aside, altered or modified
by the court upon a showing of a substantial change in the circumstances
of either party . . . . After the date of judgment, modification of any child
support order issued before, on or after July 1, 1990, may be made upon a
showing of such substantial change of circumstances, whether or not such
change of circumstances was contemplated at the time of dissolution. By
written agreement, stipulation or decision of the court, those items or cir-
cumstances that were contemplated and are not to be changed may be
specified in the written agreement, stipulation or decision of the court. . . .
If a court, after hearing, finds that a substantial change in circumstances
of either party has occurred, the court shall determine what modification
of alimony, if any, is appropriate, considering the criteria set forth in section
46b-82.’’
14
The defendant further clarified that he signed a different separation
agreement, but the college ‘‘turned it down.’’ That agreement was not pro-
duced as evidence in the course of these proceedings.
15
See Schade v. Schade, 110 Conn. App. 57, 65 n.6, 954 A.2d 846 (‘‘[I]f a
party’s culpable conduct causes an inability to pay an alimony award, then
the threshold question of whether a substantial change of circumstances
exists is not met. Accordingly, a trial court may not then modify the alimony
award.’’), cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008); see also Bauer
v. Bauer, 173 Conn. App. 595, 600, 164 A.3d 796 (2017) (‘‘The burden of
proving an inability to pay rests with the obligor. Whether the obligor has
established his inability to pay by credible evidence is a question of fact.
The obligor must establish that he cannot comply, or was unable to do so.’’).
16
We take judicial notice that the case in the revised complaint was
dismissed on December 6, 2017. Hardy v. Albertus Magnus College, Superior
Court, judicial district of New Haven, Docket No. CV-16-6059830-S. Appellate
courts have the authority to take judicial notice of files of the trial court in
the same or other cases. McCarthy v. Commissioner of Correction, 217
Conn. 568, 580 n.15, 587 A.2d 116 (1991); Disciplinary Counsel v. Villeneuve,
126 Conn. App. 692, 703 n.15, 14 A.3d 358 (2011).
17
We address the issues in the interest of judicial economy, on the assump-
tion that the issues will likely arise on remand. Mueller v. Tepler, 312 Conn.
631, 646 n.14, 95 A.3d 1011 (2014).
18
To the extent that the defendant claims that the court erroneously
considered his total pension benefit, which included the plaintiff’s marital
portion, as part of his financial circumstances in assessing his motion to
modify, we agree. On remand, once the court determines the amount of the
defendant’s defined benefit pension which must be allocated to the plaintiff
as her share of the marital portion, that amount may not be considered by
the court as part of the defendant’s financial circumstances for alimony
purposes. See Krafick v. Krafick, supra, 234 Conn. 804–805 n.26.
19
We recognize that on remand, the defendant, in order to prove a substan-
tial change in circumstances due to loss of employment, has the burden of
proving that his inability to pay must be excusable and not brought about
by the his own fault. If the defendant was culpable for his own termination of
employment, it would foreclose the threshold determination of a substantial
change in circumstances. See Olson v. Mohammadu, 310 Conn. 665, 674,
81 A.3d 215 (2013) (‘‘in order to meet the threshold of a substantial change
in circumstances, the alleged inability to pay must be excusable and not
brought about by the defendant’s own fault.’’ [internal quotation marks
omitted]); see also Sanchione v. Sanchione, supra, 173 Conn. 407.