Callahan v. Callahan ( 2019 )

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JILL GILBERT CALLAHAN v. JAMES CALLAHAN
(AC 40723)
Alvord, Moll and Pellegrino, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
resolving certain postjudgment motions that the parties had filed. The
plaintiff claimed, inter alia, that the trial court improperly granted the
defendant’s motion to modify his alimony obligation and ordered that
the modification apply retroactively. The dissolution court had granted
the defendant’s motion to open the dissolution judgment and issued
substitute financial orders. This court thereafter reversed the dissolution
court’s granting of the motion to open and remanded the matter to the
trial court with direction to reinstate the original financial orders. The
plaintiff thereafter filed a motion for contempt, claiming that the defen-
dant had failed to pay her certain amounts set forth in the dissolution
court’s original financial orders. The trial court declined to find the
defendant in contempt and determined that the effective date for the
running of interest on the amounts at issue was the date on which
the parties’ appeals to this court were finally determined. The court
subsequently granted the defendant’s motion to modify alimony, and
the plaintiff appealed to this court. The trial court thereafter determined
that it lacked jurisdiction over a motion that the plaintiff had filed
requesting that the court order the defendant to endorse certain insur-
ance checks for damage to the parties’ former marital home. The court
also denied another motion for contempt that the plaintiff filed regarding
documents necessary to transfer to the defendant the plaintiff’s interest
in certain companies that the parties owned, and the plaintiff filed an
amended appeal with this court. Held:
1. The trial court did not abuse its discretion in granting the defendant’s
motion to modify his alimony obligation and determining that the defen-
dant had established a substantial change in circumstances due to his
lower earning capacity: that court’s finding that the defendant’s earning
capacity had decreased, which it based on the companies’ profits, was
not clearly erroneous, as the court credited testimony by the defendant’s
expert witness about the companies’ financial statements, the defendant
testified that he would not be able to obtain a job with a Wall Street
bank or hedge fund, the court found it significant that the defendant
had not worked on Wall Street in twenty years, and the transfer of the
plaintiff’s interest in the companies to the defendant, which had been
ordered by the dissolution court, had not yet occurred and prevented
the defendant from selling the companies; moreover, the court was not
required to determine the defendant’s earning capacity on the basis of
what he might theoretically earn if he were to sell the companies and
pursue employment opportunities in the marketplace, and the court
used the same formula that the dissolution court had used to determine
the defendant’s earning capacity.
2. The trial court did not abuse its discretion in ordering that the modification
of the defendant’s alimony obligation be retroactive three years and
requiring the plaintiff to repay him certain sums of alimony that she
had received; that court found it equitable and appropriate under the
circumstances to modify the defendant’s alimony obligation, pursuant
to statute (§ 46b-86 [a]), retroactive to the date that the original motion
was served on the plaintiff three years earlier because there had been
a substantial delay in hearing the motion, which was pending when the
court treated an amended motion to modify that the defendant had filed
as a continuation of his original motion to modify, until the court issued
its decision.
3. The plaintiff’s claim that the trial court lacked the authority to suspend
the defendant’s alimony payments was moot; a reversal of the court’s
suspension of alimony payments would not afford the plaintiff any practi-
cal relief, as the trial court had factored the suspension of the payments
into its calculation of the defendant’s overpayment of alimony and
reduced the overpayment by the amount of alimony that accrued during
the suspension.
4. The plaintiff could not prevail on her claim that the trial court, on remand,
improperly failed to determine that the reinstated financial orders were
effective as of the date of the dissolution judgment, which thereby
reduced the value of her property award by depriving her of accrued
interest on the defendant’s debt to her: the trial court properly interpre-
ted this court’s remand order in determining that the judgment was
effective as of September 8, 2015, the date on which the parties’ appeals
to this court were finally determined, as the date employed in the remand
order identified which financial orders were to be reinstated, the remand
order constituted a reversal of a judgment, which commanded a new
effective date, and because the original financial orders were superseded
by those contained in the dissolution court’s intervening judgment,
which this court reversed, the judgment subsequently directed, which
mandated a reinstatement of the superseded financial orders, was not
effective retroactively; moreover, it was not reasonable to interpret the
remand order as direction to the trial court to reinstate the original
financial orders retroactive to the date of the dissolution judgment, and
if this court intended to direct the trial court to reinstate the original
financial orders retroactive to the date of the dissolution judgment,
it would have included language directing the trial court accordingly;
furthermore, because the sums set forth in the dissolution court’s finan-
cial orders were no longer payable once that court opened the dissolution
judgment, the plaintiff’s claim that she should be compensated for the
loss of the use of that money was without foundation.
5. This court found unavailing the plaintiff’s claim that the trial court erred
in ordering her to execute certain documents to transfer to the defendant
her interest in the companies: contrary to the plaintiff’s claim that the
court improperly required her to execute a certain complex commercial
document, the court properly credited the testimony of the defendant’s
expert witness that a transfer of the plaintiff’s interest in the companies
would require fulsome representations and warranties in order to pre-
serve the fair market value of the companies, both parties and the
court envisaged a potential sale of the companies, as the amount of the
promissory note correlated with the value of the plaintiff’s 50 percent
interest in the companies, the inclusion of a release in the documents
did not constitute a modification of the dissolution judgment, and the
plaintiff presented no evidence to refute the testimony of the defendant’s
expert witness that such a release was customary; moreover, the plaintiff
presented no evidence to demonstrate her claimed inability to make
particular representations in the documents, and although there were
inconsistencies in the documents, for which the trial court acknowl-
edged that amendments were required prior to the execution of the
documents, the plaintiff neither set forth the particular provisions in
her motion for contempt nor identified them to the trial court.
6. The plaintiff could not prevail on her claim that the trial court improperly
concluded that it lacked subject matter jurisdiction to require that the
defendant endorse two insurance checks for postdissolution property
damage to the parties’ former marital home, which the dissolution court
had awarded to the plaintiff; the trial court lacked authority to revisit its
property distribution orders or to enter additional property distribution
orders to compensate the plaintiff for the alleged postjudgment reduc-
tion in value of the home, and, to the extent that the proceeds of the
insurance checks were viewed as a new asset that was acquired pursuant
to a contract of insurance that was in effect after the parties’ marriage
had been dissolved, such proceeds would not be marital property distrib-
utable under the statute (§ 46b-81) governing the distribution of mari-
tal property.
Argued April 18—officially released September 17, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Munro,
J.; judgment dissolving the marriage and granting cer-
tain other relief, from which the defendant appealed to
this court; thereafter, the court, Munro, J., granted the
defendant’s motion to open the judgment and entered
certain financial orders, and the plaintiff appealed to
this court, which reversed in part the trial court’s judg-
ment and remanded the case to that court for further
proceedings; subsequently, the court, Hon. Michael E.
Shay, judge trial referee, granted the defendant’s
motion to modify alimony and rendered judgment
thereon, from which the plaintiff appealed to this court;
thereafter, the court, Diana, J., denied the plaintiff’s
motions for contempt and for an order regarding certain
insurance checks, and the plaintiff filed an amended
appeal. Appeal dismissed in part; affirmed.
Laura W. Ray, for the appellant (plaintiff).
Campbell D. Barrett, with whom were Jon T.
Kukucka and, on the brief, Johanna S. Katz, for the
appellee (defendant).
Opinion
ALVORD, J. In this postjudgment dissolution matter,
the plaintiff, Jill Gilbert Callahan, appeals from the judg-
ments of the trial court, rendered on remand from this
court, granting a motion to modify alimony filed by
the defendant, James Callahan, and issuing additional
postjudgment orders. On appeal, the plaintiff claims
that the court (1) erred in granting the defendant’s
motion to modify alimony, (2) abused its discretion in
modifying alimony retroactively, (3) lacked the legal
authority to suspend the defendant’s alimony payments
to her as a condition of granting her motion for a contin-
uance, (4) erred in determining the effective date of
financial orders that this court mandated be reinstated,
(5) erred in ordering her to execute certain documents
to transfer her interest in the companies owned by the
parties, and (6) improperly concluded that it lacked
subject matter jurisdiction to require the defendant to
endorse two insurance checks. We dismiss as moot
the plaintiff’s third claim regarding the suspension of
alimony payments and affirm the judgments of the trial
court in all other respects.1
The following facts and procedural history are rele-
vant to our resolution of the appeal. The parties were
married in 1987 and raised three children, all adults at
the time of the dissolution trial. In 2009, the plaintiff
filed a complaint seeking dissolution of her marriage
to the defendant. The matter was tried to the court,
Munro, J., in March, 2012. On May 8, 2012, the court
issued a memorandum of decision rendering judgment
dissolving the parties’ marriage on the ground of irre-
trievable breakdown, and entering property division
and alimony orders (May, 2012 dissolution judgment).
On June 15, 2012, the defendant filed a motion to open
the judgment of dissolution and attendant financial
orders, which was granted on November 6, 2012. The
court then held an evidentiary hearing and, in a Febru-
ary 27, 2014 memorandum of decision, issued substitute
financial orders (February, 2014 decision).
Both parties filed appeals. This court, on May 5, 2015,
issued a decision reversing the trial court’s granting of
the motion to open the judgment and remanded the
matter with direction to reinstate the May, 2012 finan-
cial orders. Callahan v. Callahan, 157 Conn. App. 78,
101, 116 A.3d 317, cert. denied, 317 Conn. 913, 116 A.3d
812 (2015), and cert. denied, 317 Conn. 914, 116 A.3d
813 (2015).
Following this court’s resolution of the parties’ prior
appeals, the plaintiff filed, among several motions, a
motion for contempt dated July 6, 2015. In her motion,
she argued, inter alia, that the defendant had refused
to comply with the judgment in that he had failed to
pay amounts set forth in the May, 2012 financial orders,
plus interest, which she contended had begun accruing
in 2012. On May 4, 2016, the court, Hon. Michael E.
Shay, judge trial referee, issued a memorandum of deci-
sion declining to find the defendant in contempt, in
which it concluded that ‘‘the effective date for the run-
ning of interest is September 8, 2015,’’ the date that,
the court determined, the defendant had exhausted all
the appellate avenues that had been available to him.
In November, 2016, the court, Hon. Michael E. Shay,
judge trial referee, began hearing evidence on a motion
to modify alimony originally filed by the defendant on
May 19, 2014, and amended on October 15, 2015. In its
memorandum of decision filed August 1, 2017, the court
found that the defendant had established a substantial
change in circumstances and granted his motion to
modify alimony. On August 7, 2017, the plaintiff filed
this appeal.
While this appeal was pending, the court, Diana, J.,
heard additional motions filed by the plaintiff. On April
3, 2018, the court concluded that it lacked jurisdiction
over the plaintiff’s motion requesting that the court
order the defendant to endorse two Chubb property
damage insurance checks.2 On April 10, 2018, the court
denied the plaintiff’s motion for contempt regarding the
documents necessary to transfer the plaintiff’s interest
in companies owned by the parties and issued a reme-
dial order. On April 20, 2018, the plaintiff filed an appeal
challenging the April 3 and 10, 2018 orders, which this
court treated as an amendment to the original appeal
filed on August 7, 2017. Additional facts and procedural
history will be set forth as necessary.
I
The plaintiff’s first claim on appeal is that the trial
court erred in finding that the defendant had established
a substantial change in circumstances justifying a modi-
fication in alimony. She argues that the trial court erro-
neously considered evidence showing a change in the
defendant’s earnings only from the companies owned
by the parties, whereas the dissolution court based its
original alimony award on the defendant’s general earn-
ing capacity independent of his earnings from the com-
panies. Thus, she argues that the trial court failed to
compare ‘‘apples to apples . . . .’’3 We disagree.
The following additional facts and procedural history
are relevant to this claim. In 1995, the parties estab-
lished three companies together, Pentalpha Group, LLC,
Pentalpha Funding, LLC, and Pentalpha Capital, LLC.
The plaintiff owned 51 percent of each of the three
entities and the defendant owned 49 percent. In 2005,
a fourth Pentalpha entity was created, Pentalpha Sur-
veillance, of which 100 percent was owned by the defen-
dant (collectively, the companies). The court found that
the companies ‘‘work in various fields: as an investment
advisor, as a trading and brokerage company, as a bro-
ker dealer and as an oversight company, all ostensibly
in the loan market, particularly working with asset-
backed debt.’’
In its May, 2012 dissolution judgment, the court
ordered the defendant to pay $60,000 per month in
alimony, until the death of either party, the remarriage
of the plaintiff, or as determined by the court, pursuant
to General Statutes § 46b-86 (b). In so ordering, the
court stated: ‘‘The alimony order is predicated on earn-
ings, including member distributions to the defendant
of up to $2,000,000 per year. The court notes that the
plaintiff’s valuation expert, Barry Sziklay, concluded
that a comparable compensation for the defendant, as
a key person operating on Wall Street, would be at
least in the [$1 million to $2 million] range annually.
Ultimately, in the valuation model that he used, Sziklay
attributed 50 percent of the pretax profits to the defen-
dant. For 2010, that resulted in adjusted compensation
of $1,976,312. As of the second quarter’s completion
for 2011, that adjusted compensation attributed to the
defendant was $684,880. The defendant provided no
contrary evidence. The court finds this approach rea-
sonable. No evidence was adduced of any increase in
liabilities. Accordingly, finding earnings attributable to
the defendant in the amount of $2,000,000 gross is con-
servative, the court adopts it as a finding of fact as to the
present earning capacity of the defendant at Pentalpha.’’
On May 19, 2014, while the parties’ prior appeals
remained pending, the defendant filed a motion to mod-
ify his alimony. In that motion, he represented that the
companies were ‘‘experiencing a cash flow crisis’’ and
that the defendant’s earning capacity at the companies
was no longer $2 million. The defendant argued that
postjudgment misconduct of the plaintiff, on which the
trial court relied in opening the dissolution judgment,
had diminished the value of the companies, thereby
reducing the earnings from which he pays alimony. The
motion was not pursued while the parties’ prior appeals
were pending. On October 15, 2015, the defendant filed
an amended motion for modification of alimony, again
arguing that his income had decreased since the date
of dissolution.
The court began hearing evidence on the defendant’s
motion on November 8, 2016. The defendant testified
that, taking the four companies together, the cash col-
lected on an annual basis had decreased substantially
since the May, 2012 dissolution judgment. As to the
potential for other employment, the defendant testified
that he did not believe it would be possible for him to
leave the companies and get a new job. Specifically, he
stated: ‘‘The market has taken an invention that I’ve
devised—this surveillance, this oversight, to investor
confidence. They’ve made me an insider on 140 deals.
I can’t go show up and work at some Wall Street bank
or some hedge fund; they would have to preclude me
from the one thing that I know about because I’m
the insider.’’
Both parties presented expert testimony. The defen-
dant presented the testimony of Attorney Mark Har-
rison. Harrison testified that he used the compensation
methodology set forth in the May, 2012 dissolution judg-
ment, pursuant to which 50 percent of the pretax profits
of three of the companies (Pentalpha Funding, LLC,
Pentalpha Group, LLC, and Pentalpha Capital, LLC) as
shown in the companies’ audited financial statements,
was attributed to the defendant as reasonable compen-
sation. Harrison performed the same analysis for the
years 2012–2015 to arrive at reasonable compensation
attributable to the defendant in the amount of $210,000.
He also performed the same analysis including profits
from Pentalpha Surveillance, which was omitted from
the calculations in the May, 2012 dissolution judgment,
to arrive at reasonable compensation attributable to
the defendant in the amount of $370,000. The audited
financial statements for each of the four companies, on
which Harrison relied, also were entered into evidence.
Harrison testified that the defendant was not earning
sufficient money to satisfy his alimony obligations. Spe-
cifically, he testified that in order to satisfy the defen-
dant’s obligations pursuant to the May, 2012 dissolution
judgment, he would be ‘‘not only taking the 50 percent
of income out of the company, he’s taking it all out as
well as withdrawing the excess capital that was valued
in it to get the cash flow to be able to pay his obligations
pursuant to the judgment and live his life.’’
The plaintiff presented the expert testimony of
Sziklay, whose formula attributing 50 percent of the
pretax profits of the companies to the defendant was
used by the court in the May, 2012 dissolution judgment
to reach an earning capacity of $2 million. In his testi-
mony during the hearing on the motion for modification,
Sziklay agreed with the numbers used by Harrison to
determine 50 percent of the pretax profits of the compa-
nies. He disagreed, however, with Harrison’s conclusion
that the defendant had an earning capacity of $210,000.
According to Sziklay’s December, 2016 testimony, the
defendant’s earning capacity of $2 million, which was
found by the dissolution court in May, 2012,
remained reasonable.
In its memorandum of decision filed August 1, 2017,
the court determined that the defendant had established
a substantial change in circumstances due to his lower
earning capacity. The court credited Harrison’s testi-
mony that the defendant had been using his personal
assets to meet his marital obligations. Finding that Har-
rison had ‘‘used the same basic format that . . . Sziklay
used at the time of trial,’’ the court relied on Harrison’s
calculations using the profits of all four companies. The
court found that the defendant had an earning capacity
of $370,000 per year, as of January 1, 2016, and ordered
the defendant to pay $12,000 per month in alimony
until ‘‘the death of either party or the remarriage of the
plaintiff, or the entry into a civil union by her, whichever
shall sooner occur.’’ The court found, with respect to
the period of July 1, 2014 through December 31, 2015,
that the defendant had an earning capacity of $850,000
per annum and a net income of $489,692. It determined
the alimony due for that period to be $24,000 per month.
On appeal, the plaintiff argues that the court was
required to find the defendant’s earning capacity inde-
pendent of the companies. We disagree.
‘‘We review the court’s judgment granting a motion to
modify alimony payments under an abuse of discretion
standard. An 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. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action.’’4 (Internal quo-
tation marks omitted.) McRae v. McRae, 139 Conn. App.
75, 80, 54 A.3d 1049 (2012). ‘‘[T]he trial court’s findings
[of fact] are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . 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.’’ (Internal quotation
marks omitted.) Steller v. Steller, 181 Conn. App. 581,
593, 187 A.3d 1184 (2018).
‘‘[General Statutes §] 46b-86 governs the modification
or termination of an alimony or support order after the
date of a dissolution judgment. When, as in this case,
the disputed issue is alimony . . . the applicable provi-
sion of the statute is § 46b-86 (a), which provides that
a final order for alimony may be modified by the trial
court upon a showing of a substantial change in the
circumstances of either party. . . . Under that statu-
tory provision, the party seeking the modification bears
the burden of demonstrating that such a change has
occurred. . . . To obtain a modification, the moving
party must demonstrate that circumstances have
changed since the last court order such that it would
be unjust or inequitable to hold either party to it.
Because the establishment of changed circumstances
is a condition precedent to a party’s relief, it is pertinent
for the trial court to inquire as to what, if any, new
circumstance warrants a modification of the existing
order.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) Olson v. Mohammadu, 310
Conn. 665, 671–72, 81 A.3d 215 (2013). In determining
whether the moving party has established a substantial
change in circumstances, the trial court is ‘‘free to credit
or reject all or part of the testimony given . . . . On
review, we do not reexamine the court’s credibility
assessments.’’ Zilkha v. Zilkha, 167 Conn. App. 480,
489, 144 A.3d 447 (2016).
The plaintiff argues that the court erred in calculating
the defendant’s earning capacity on the basis of the
companies’ profits alone, rather than on the defendant’s
earning capacity independent of the companies.5 ‘‘While
there is no fixed standard for the determination of an
individual’s earning capacity . . . it is well settled that
earning capacity is not an amount which a person can
theoretically earn, nor is it confined to actual income,
but rather it is an amount which a person can realisti-
cally be expected to earn considering such things as
his vocational skills, employability, age and health.’’
(Internal quotation marks omitted.) Fritz v. Fritz, 127
Conn. App. 788, 796, 21 A.3d 466 (2011).
Bearing in mind that a party’s earning capacity is
not calculated by reference to amounts the party can
theoretically earn, nor is earning capacity fixed at any
one moment in a career, we are unpersuaded that the
court abused its discretion in grounding its finding of
the defendant’s earning capacity on the profits of the
companies. The court had before it the defendant’s testi-
mony that he would not be able to obtain a job with a
Wall Street bank or hedge fund because the nature of
the companies’ business had made him an ‘‘insider,’’
and the court found significant that the defendant had
not worked on Wall Street in twenty years. Moreover,
the transfer of the plaintiff’s interest in the companies
to the defendant, which had been ordered by the court
in the May, 2012 dissolution judgment, had not yet
occurred, which the defendant testified prevented him
from selling the companies. Thus, the court was not
required to make its finding of the defendant’s earning
capacity on the basis of what the defendant might theo-
retically earn were he to sell the companies he founded
and ran for approximately twenty years to pursue lim-
ited opportunities for employment in the marketplace.
We conclude that the court’s factual finding that the
defendant’s earning capacity had decreased from $2
million at the time of dissolution to $370,000 at the time
of the modification was not clearly erroneous. The court
expressly credited Harrison’s testimony and accompa-
nying exhibits showing 50 percent of the pretax profits
of the companies as set forth in the companies’ audited
financial statements, and the plaintiff’s expert agreed
with the numbers used in Harrison’s calculations. More-
over, the court found the defendant’s earning capacity
using the same formula that the court used in its May,
2012 dissolution judgment to calculate the defendant’s
earning capacity. The court’s findings regarding a sub-
stantial change in circumstances are supported by the
record, and, thus, we conclude that the court did not
abuse its discretion in granting the defendant’s motion
to modify alimony.
II
The plaintiff’s second claim is that the court abused
its discretion ‘‘when it made its alimony modification
order retroactive three years to July, 2014, and ordered
the plaintiff to repay the defendant $1.3 million in ali-
mony already received.’’ She argues that the defendant’s
motions to modify alimony were predicated on the
court’s February, 2014 decision opening the May, 2012
dissolution judgment, which this court vacated, and,
thus, retroactivity to the date of the filing of his motion
should be barred. We disagree.
The following additional facts and procedural history
are relevant to this claim. In its August 1, 2017 memoran-
dum of decision granting the defendant’s motion to
modify alimony, the court, citing the marshal’s return,
found that the plaintiff was served in hand with the
defendant’s motion for modification on June 9, 2014.
Noting that the defendant had filed an amended motion
for modification dated October 15, 2015, seeking identi-
cal relief, the court found that ‘‘at the time of trial, the
original motion was still pending and undecided . . . .’’
Relying on § 46b-86 (a), the court concluded that ‘‘any
retroactive relief would relate back to the date of the
service of the original motion . . . and that under all
the facts and circumstances, it is equitable and appro-
priate to enter an order of modification retroactive to
July 1, 2014.’’ (Citation omitted.)
The plaintiff’s claim on appeal is that retroactivity
should be barred on the ground that both the original
and amended motions to modify were predicated on
findings contained in the court’s February, 2014 judg-
ment, which was subsequently vacated. She argues that
the defendant changed the basis of his motion late in
its pendency, and therefore retroactivity is improper
because notice, required in order to support retroactive
modification, ‘‘is not meaningful if the grounds for the
motion are changed years later.’’
The issue of whether the court properly made the
modification retroactive is reviewed for abuse of discre-
tion. See LeSueur v. LeSueur, 172 Conn. App. 767, 783,
162 A.3d 32 (2017) (court had discretion to make child
support modification retroactive to any time between
date motion was served and date motion was decided
that was reasonably supported by record); Cannon v.
Cannon, 109 Conn. App. 844, 850, 953 A.2d 694 (2008)
(‘‘[t]he record provides support that the court acted
within its discretion when it ordered the unallocated
alimony and child support payments retroactive to the
date of service for the motion for modification’’). There-
fore, we apply the same standard of review set forth
in part I of this opinion.
Pursuant to § 46b-86 (a), ‘‘[n]o order for periodic pay-
ment of permanent alimony or support may be subject
to retroactive modification, except that the court may
order modification with respect to any period during
which there is a pending motion for modification of
an alimony or support order from the date of service
of notice of such pending motion upon the opposing
party pursuant to section 52-50.’’ (Emphasis added.)
‘‘We have held previously that parties must comply
strictly with § 46b-86 (a) before a court may determine
whether to retroactively modify support orders.’’ (Inter-
nal quotation marks omitted.) LeSueur v. LeSueur,
supra, 172 Conn. App. 780.
‘‘Although there is no bright line test for determining
the date of retroactivity of child support [or alimony]
payments, this court has set forth factors that may be
considered. Specifically, in Hane [v. Hane, 158 Conn.
App. 167, 176, 118 A.3d 685 (2015)], we expressly noted
that a retroactive award may take into account the
long time period between the date of filing a motion to
modify, or . . . the contractual retroactive date, and
the date that motion is heard . . . . The court may
examine the changes in the parties’ incomes and needs
during the time the motion is pending to fashion an
equitable award based on those changes.’’ (Internal quo-
tation marks omitted.) Malpeso v. Malpeso, 189 Conn.
App. 486, 507, 207 A.3d 1085 (2019). ‘‘Moreover, § 46b-
86 (a) accords deference to the trial court by permitting
it to make a modification to a party’s child support
obligation retroactive to ‘any period during which there
is a pending motion for modification.’ ’’ (Emphasis in
original.) LeSueur v. LeSueur, supra, 172 Conn. App.
780.
In the present case, the defendant’s motion for modi-
fication was served on June 9, 2014, and an amended
motion was filed on October 15, 2015. In both the origi-
nal and amended motions, the defendant alleged that
there had been a substantial change in circumstances,
in that the companies were ‘‘experiencing a cash flow
crisis’’ and that the defendant’s earning capacity at the
companies was no longer $2 million. In his amended
motion, he again alleged a substantial change of circum-
stances on the basis of the diminution of his income
since the May, 2012 dissolution judgment. Although the
defendant referenced that the plaintiff’s actions
affected the companies’ profitability, the substantial
change in circumstances alleged was that the compa-
nies were ‘‘experiencing a cash flow crisis and [the
defendant’s] earning capacity at the companies is not
$2 million.’’ Thus, the substantial change in circum-
stances to be established by the defendant at trial was
the cash flow crisis. Significantly, the court stated in
its memorandum of decision that it had not taken into
consideration allegations three and six of the defen-
dant’s motion, which referenced the plaintiff’s
alleged misconduct.
The court found, under the facts and circumstances
of the present case, that it was equitable and appro-
priate to modify the defendant’s alimony obligations
retroactively. Those circumstances included the ‘‘sub-
stantial delay’’ in hearing the defendant’s motion, which
spanned more than three years. See Cannon v. Cannon,
supra, 109 Conn. App. 851 (modification retroactive
three years to date of service for motion not abuse of
discretion). The original motion, served on June 9, 2014,
was pending pursuant to § 46b-86 (a) until the court,
which treated the amended motion as a continuation of
the original motion, issued its memorandum of decision
filed August 1, 2017. Given the circumstances, it was
not an abuse of discretion for the court to order the
modification of the defendant’s alimony obligation ret-
roactive to July 1, 2014.
III
The plaintiff’s third claim on appeal is that the court
lacked the legal authority to suspend the defendant’s
alimony payments as a condition of granting her motion
for a continuance. She further claims that the court
erred in refusing her request to withdraw her motion
for a continuance and allow the trial to proceed. The
defendant responds that the plaintiff’s claim is not justi-
ciable because the plaintiff was not harmed by the
court’s decision, and there is no practical relief that
this court can afford her. We conclude that this court
lacks subject matter jurisdiction over this claim on the
ground of mootness.6
The following additional facts and procedural history
are relevant to our resolution of this claim. The defen-
dant’s motion for downward modification of alimony;
see part II of this opinion; was filed on May 19, 2014,
and amended on October 15, 2015. A trial on the motion
was held over the course of approximately fifteen trial
days, from November, 2016, through final argument on
June 28, 2017. A decision on the motion was rendered
August 1, 2017, on which date the trial court issued its
memorandum of decision modifying the defendant’s
alimony obligation.
On January 31, 2017, the plaintiff’s counsel informed
the court that she was requesting a continuance because
the plaintiff’s slipped disk had worsened and she was
placed on bed rest indefinitely. The defendant’s counsel
objected to the continuance on the ground that it was
‘‘yet another in a very long list of continuance requests
in this case.’’ He further requested that the court sus-
pend the alimony order subject to recalculation upon
the conclusion of evidence in the event the court contin-
ued the matter. The court denied the motion for a con-
tinuance. When the afternoon session commenced, the
plaintiff’s counsel objected to proceeding in the absence
of the plaintiff, and the court stated that it had looked
at the number of continuances in the case and that a
‘‘good portion of them’’ had been accorded to the plain-
tiff or the plaintiff’s counsel.7
During a court appearance on February 24, 2017, the
court took up the plaintiff’s motion for a continuance.
The court requested that both parties provide updated
financial affidavits and that the plaintiff’s counsel pro-
vide a medical report that would enable the court to
determine whether the plaintiff might be able to return
to court to testify or whether alternative methods would
be needed to secure her testimony. The court then
expressed concern that the defendant’s motion for mod-
ification had been pending for a long period of time.
Indicating that it was required to balance the rights of
both parties, including the plaintiff’s right to attend the
hearing and assist her counsel and the defendant’s right
to have his motion heard in a timely fashion, the court
stated that it would consider argument during the par-
ties’ next scheduled court appearance as to whether
it should suspend prospectively and temporarily the
defendant’s alimony payment in whole or in part. The
court stated: ‘‘[T]he way I view suspension is it does not
terminate the alimony. It continues to accrue subject
to a final decision.’’ Although the court was unaware
of any precedent for suspending the alimony payment,
it indicated that it had given the matter considerable
thought and believed such an action was within the
authority of the court. It also invited the parties to
identify any relevant precedent.
On March 28, 2017, the parties appeared before the
court, and the court described the issue to be heard as
‘‘whether or not it’s appropriate under all the circum-
stances to suspend the alimony, and I explained what
I meant by suspend, which is not terminate, not modify,
just simply suspend payment in whole or in part until
a final decision is reached . . . .’’ Having presided over
eight days of trial and heard the testimony of both
parties’ experts and the defendant, the court stated that
it had a considerable body of evidence to assist its
consideration of a motion to suspend. Following argu-
ment, the court found that it was equitable to suspend
the full alimony payment for a period of three months.
The court considered it important that the defendant
was current on his alimony payments, which the court
found he was paying out of assets that were awarded
to him in the original dissolution judgment. The court
indicated that it would revisit the issue in three months
but invited the parties to return to court sooner in the
event that the plaintiff’s medical condition resolved in
the interim.
Following the court’s ruling, the plaintiff’s counsel
sought the opportunity to consult with the plaintiff as
to whether she wanted to allow the proceedings to
continue in her absence and continue receiving alimony
payments or whether she maintained her request for a
continuance with the knowledge that alimony payments
would be suspended. Her counsel further argued that
to the extent the court’s granting of the continuance
was conditioned on accepting a suspension of alimony,
the plaintiff should be able to decide whether to accept
the condition or withdraw the motion. The court
rejected that argument and indicated that the motion
had already been brought and decided.8
On June 28, 2017, the parties appeared for final argu-
ment on the defendant’s motion to modify alimony, and
the court heard argument as to whether the suspension
of the alimony payment should continue. The court
modified its order and required the defendant to pay
$10,000 monthly in alimony until such time as the court
rendered its decision on the defendant’s motion for
modification. Again, the court emphasized that it had
ordered a suspension. It stated: ‘‘This is . . . under no
circumstances . . . a modification. That’s to be
decided. This is a suspension. . . . The payment of [the
$60,000 per month] was suspended. But as we all know
. . . if the court modifies and goes retroactive, that
. . . ultimately becomes a matter for a . . . mathemat-
ical adjustment. So, this is in no way, shape or form a
. . . modification or prejudging of the circumstances
. . . .’’
In its August 1, 2017 memorandum of decision grant-
ing the defendant’s motion for modification, the court
reiterated that the alimony had continued to accrue
during the suspension of the defendant’s alimony obli-
gation. After finding a substantial change of circum-
stances and modifying the defendant’s alimony retroac-
tive to July 1, 2014, the court took into account the
suspension of the defendant’s alimony obligation in cal-
culating the defendant’s overpayment in the amount
of $1,330,000.9
As a threshold matter, the defendant argues that the
plaintiff was not harmed by the court’s decision sus-
pending the defendant’s alimony obligation and, there-
fore, her claim is not justiciable. ‘‘Subject matter juris-
diction [implicates] the authority of the court to
adjudicate the type of controversy presented by the
action before it. . . . [A] court lacks discretion to con-
sider the merits of a case over which it is without
jurisdiction . . . . The objection of want of jurisdic-
tion may be made at any time . . . [a]nd the court or
tribunal may act on its own motion, and should do so
when the lack of jurisdiction is called to its attention.
. . . The requirement of subject matter jurisdiction
cannot be waived by any party and can be raised at
any stage in the proceedings.’’ (Internal quotation marks
omitted.) Kennedy v. Kennedy, 109 Conn. App. 591,
598–99, 952 A.2d 115 (2008); see also Altraide v.
Altraide, 153 Conn. App. 327, 332, 101 A.3d 317
(‘‘[m]ootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction’’ [internal quo-
tation marks omitted]), cert. denied, 315 Conn. 905, 104
A.3d 759 (2014).
‘‘[T]he existence of an actual controversy is an essen-
tial requisite to appellate jurisdiction; it is not the prov-
ince of appellate courts to decide moot questions, dis-
connected from the granting of actual relief or from
the determination of which no practical relief can fol-
low. . . . In determining mootness, the dispositive
question is whether a successful appeal would benefit
the plaintiff or defendant in any way.’’ (Internal quota-
tion marks omitted.) Zoll v. Zoll, 112 Conn. App. 290,
297–98, 962 A.2d 871 (2009). In Zoll, this court con-
cluded that it lacked subject matter jurisdiction over a
claim that the trial court, on September 13, 2006, had
improperly vacated a prior order of the court staying
the defendant’s alimony obligation. Id., 298. In its subse-
quent memorandum of decision resolving the defen-
dant’s motion to modify alimony, issued on March 2,
2007, the court instructed that its new alimony order
was retroactive to June 14, 2006. Id. Because the March,
2007 judgment had retroactive effect, a reversal of the
September, 2006 judgment would provide no benefit to
the defendant. Thus, the claim was rendered moot. Id.
In the present case, the court expressed on multiple
occasions that, although it was ordering a temporary
suspension of the defendant’s payment of his alimony
obligation, the alimony continued to accrue during the
suspension, and the court would employ a calculation
in its final orders reflecting the suspension. In its memo-
randum of decision modifying the defendant’s alimony
obligation retroactive to July 1, 2014, the court factored
the suspension of payments into its calculation of the
defendant’s overpayment.10 Thus, a reversal of the
court’s suspension of alimony payments would not
afford the plaintiff any practical relief because the
amount of the defendant’s overpayment was reduced
by the amount of alimony that accrued during the sus-
pension. Thus, the issue on appeal is moot and, as a
result, we do not reach the merits of the plaintiff’s claim.
See Altraide v. Altraide, supra, 153 Conn. App. 332.
IV
The plaintiff’s fourth claim on appeal is that the court,
on remand, erred in determining that the May, 2012
financial orders, which this court ordered reinstated;
see Callahan v. Callahan, supra, 157 Conn. App. 101;
were effective as of September 8, 2015, the date on
which the plaintiff’s and the defendant’s appeals to the
Appellate Court were finally determined. She argues
that the financial orders were effective as of May, 2012,
and thus, the defendant is responsible for interest that
began accruing according to the payment schedule pro-
vided in the original judgment of dissolution. She con-
tends that the court’s determination of a September,
2015 effective date ‘‘improperly reduced the value of
[the] plaintiff’s property award by: (1) three years of
accrued interest on [the defendant’s] debt from May,
2012 through September 8, 2015; and (2) the loss of
default interest on his overdue installment payments
on his remaining debt.’’ The defendant responds that
the trial court correctly determined the effective date
of the judgment. We agree with the defendant.
The following additional facts and procedural history
are relevant to our resolution of this claim. As noted
previously, the court issued a memorandum of decision
dissolving the parties’ marriage on May 8, 2012. Para-
graph 11 of the court’s order provides: ‘‘Within sixty
(60) days the plaintiff shall transfer to the defendant
all of her right, title and interest to the Pentalpha compa-
nies. The defendant shall, coincident therewith, sign a
promissory note secured on the stock and accounts of
the Pentalpha companies for $6,000,000 that shall be
paid at the following rate to the plaintiff: $1,000,000
per year, every year commencing with the first pay-
ment on June 1, 2012, and on every June 1 thereafter
until paid in full. Said note shall bear interest at the
rate of 5 percent per year and may be prepaid. If the
defendant is in default of any payment, the entire note
shall bear interest at the rate of 10 percent per year
until the default is cured. If any of the installments are
not timely paid, the defendant shall pay the plaintiff’s
reasonable attorney’s fees and cost[s] of collection. The
plaintiff may perfect her security interest on the stock
and the Pentalpha accounts at her cost.’’11 (Emphasis
added.). Paragraph 12 of the court’s order provides:
‘‘The defendant shall pay to the plaintiff the sum of
$600,000 as an additional property order within ninety
(90) days. If defendant fails to pay in a timely manner,
the entire sum outstanding shall bear interest at the
rate of 5 percent per annum until paid in full.’’
(Emphasis added.)
On June 15, 2012, the defendant filed a motion to
open the judgment, arguing that the plaintiff had made
certain unauthorized postjudgment withdrawals from
company accounts. He requested that the court ‘‘open
and set aside the May 8, 2012 judgment of dissolution
and attendant financial orders and . . . hold a new
trial as to all financial issues.’’ In the alternative, he
requested that the court ‘‘open its judgment and . . .
enter new financial orders that take into account the
plaintiff’s unauthorized withdrawal of funds from the
Pentalpha companies.’’
On November 6, 2012, the court opened the judgment,
ordering court-supervised appropriate discovery and a
hearing to provide evidence for the court to ‘‘find such
facts as are necessary to enter new financial orders, as
may be necessary, that take into account the plaintiff’s
unauthorized withdrawal of funds from the Pentalpha
companies.’’ After a period of discovery and a hearing,
the court issued what this court described as ‘‘substitute
financial orders’’ on February 27, 2014. Callahan v. Cal-
lahan, supra, 157 Conn. App. 86. In its 2014 memoran-
dum of decision, the trial court found that the value of
the companies had been reduced as a result of the
plaintiff’s actions from $11,747,660 in June, 2011, to
$6,336,734. Id. The court issued new orders, which were
‘‘in lieu of and replace[d] all of the orders in the original
memorandum of decision regarding ownership of Pen-
talpha and payment therefor.’’ The court then ordered
the defendant to execute a promissory note in the
amount of $3 million, which was one half of the sum
ordered in the original dissolution judgment.12 The court
issued a new judgment dated February 25, 2014.
Both parties filed appeals. On August 17, 2012, the
defendant filed his appeal13 (AC 34936) from the dissolu-
tion judgment and the court’s August 1, 2012 denial of
his May 29, 2012 motions to open the judgment and to
reargue. Callahan v. Callahan, supra, 157 Conn. App.
84 n.8. On March 7, 2014, the plaintiff filed her appeal
(AC 36617) from the court’s decision opening the disso-
lution judgment and modifying the financial orders. Id.,
87. On April 7, 2014, the defendant amended his appeal
to include a challenge to the court’s opening of the
judgment and its modification of the financial orders.
Id. Although this court did not consolidate the appeals,
it wrote one opinion addressing the claims made in
both appeals. Id., 80 n.1.
In a decision released on May 5, 2015, this court
‘‘agree[d] with the plaintiff’s claim that the court did
not have authority to open the dissolution judgment
and, accordingly, reverse[d] the judgment entering sub-
stitute financial orders and remand[ed] the case with
direction to reinstate the May, 2012 financial orders.’’
Id., 81. This court ‘‘otherwise affirm[ed] the dissolution
judgment.’’ Id. The rescript provided: ‘‘The judgment
granting the motion to open is reversed and the case
is remanded with direction to reinstate the May, 2012
financial orders. The judgment is affirmed in all other
respects.’’ Id., 101. The defendant filed two petitions
for certification to appeal to our Supreme Court, which
denied the petitions on June 24, 2015. Callahan v. Cal-
lahan, 317 Conn. 913, 116 A.3d 812 (2015); Callahan v.
Callahan, 317 Conn. 914, 116 A.3d 813 (2015).
Following this court’s resolution of the parties’ prior
appeals, the plaintiff filed, among other motions, a
motion for contempt dated July 6, 2015. In her motion,
she argued, inter alia, that the defendant had refused
to comply with the judgment in that he had failed to
pay the amounts set forth in the financial orders, plus
interest, which she contended had begun accruing in
2012.14 The parties appeared before the court, Hon.
Michael E. Shay, judge trial referee, on this and other
motions on November 24, 2015. During that appearance,
the subject of the effective date of the judgment arose,
and the court requested briefing. The parties appeared
for argument on the issue on April 22, 2016.
On May 4, 2016, Judge Shay issued a memorandum
of decision, in which he concluded that ‘‘the effective
date for the running of interest is September 8, 2015.’’
The court set forth the sole issue of the parties as
‘‘whether 5 [percent] interest should be calculated from
June 1, 2012, as set forth in the original judgment or
from May 5, 2015, at the earliest, or at a date following
the termination of the appellate process, at the latest.’’
The court stated that counsel for the plaintiff had con-
ceded during argument that the plaintiff’s obligation to
transfer the stock and the defendant’s obligation to
prepare the promissory note were not triggered until
the appellate process terminated in 2015. Thus, the
court found that ‘‘[i]n the absence of the obligation to
draft a promissory note until after the appellate process
was complete . . . it is only logical that interest would
start to run from the later date.’’ The court relied on
case law providing that ‘‘the granting of a motion to
open renders a trial court’s judgment nonfinal and,
therefore, ineffective pending its resolution’’; RAL Man-
agement, Inc. v. Valley View Associates, 278 Conn. 672,
686, 899 A.2d 586 (2006); and that ‘‘[s]etting aside or
vacating a prior order renders the situation the same
as though the order had never been made’’; State v.
Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974); and
concluded that ‘‘where the Appellate Court breathed
new life into the then defunct original judgment, its
provisions should become effective as of that date, and
in this case, when the appellate process was at an end.’’15
We begin by setting forth the standard of review
applicable to the claim that the court improperly con-
strued this court’s remand order as to the effective date
of the judgment directed. ‘‘Determining the scope of a
remand is a matter of law because it requires the trial
court to undertake a legal interpretation of the higher
court’s mandate in light of that court’s analysis. . . .
Because a mandate defines the trial court’s authority
to proceed with the case on remand, determining the
scope of a remand is akin to determining subject matter
jurisdiction. . . . We have long held that because [a]
determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is ple-
nary. . . .
‘‘At the outset, we note that, [i]f a judgment is set
aside on appeal, its effect is destroyed and the parties
are in the same condition as before it was rendered.
. . . As a result, [w]ell established principles govern
further proceedings after a remand by this court. In
carrying out a mandate of this court, the trial court
is limited to the specific direction of the mandate as
interpreted in light of the opinion. . . . This is the
guiding principle that the trial court must observe. . . .
It is the duty of the trial court on remand to comply
strictly with the mandate of the appellate court
according to its true intent and meaning. . . . The trial
court should examine the mandate and the opinion of
the reviewing court and proceed in conformity with
the views expressed therein.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Hurley v. Heart Physicians, P.C., 298 Conn. 371, 383–
84, 3 A.3d 892 (2010); see also Bruno v. Bruno, 177
Conn. App. 599, 606–607, 176 A.3d 104 (2017).
Both parties rely on the general principle that ‘‘[i]f
the trial court’s judgment is sustained, or the appeal
dismissed, the final judgment ordinarily is that of the
trial court. If, however, there is reversible error, the
final judgment is that of the appellate court.’’ Preisner
v. Aetna Casualty & Surety Co., 203 Conn. 407, 415,
525 A.2d 83 (1987); see also W. Horton & K. Bartschi,
Connecticut Practice Series: Connecticut Rules of
Appellate Procedure (2018–2019 Ed.) § 71-1, p. 258,
authors’ comments (‘‘[i]f the Superior Court judgment
is affirmed, the judgment is effective retroactive to the
date of its entry; if a Superior Court judgment is reversed
and a different judgment is directed by the Supreme
Court, it is effective as of the date of the appellate
judgment’’). They disagree, however, as to the proper
application of this principle. The plaintiff contends that
‘‘[t]he operative Superior Court judgment to determine
the effective date is the May, 2012 judgment, which
was affirmed, not [the February, 2014 decision], which
impermissibly opened [the May, 2012 dissolution judg-
ment] and which this court determined was a legal
nullity.’’ According to the defendant, however, the dis-
solution judgment was no longer in effect as of the
court’s November 6, 2012 decision opening the judg-
ment. See Connecticut National Bank v. Great Neck
Development Co., 215 Conn. 143, 147, 574 A.2d 1298
(1990) (‘‘[a]fter a motion for opening a judgment is
granted, the case stands as though no judgment was
rendered’’ [internal quotation marks omitted]). He con-
tends that the judgment issued on February 25, 2014,
remained in effect until this court released its decision
in May, 2015. In that decision, this court reversed the
February, 2014 judgment and, thus, he argues that the
effect of the reversal is that the judgment directed by
this court became effective upon the release of this
court’s decision.
We agree with the defendant that, under the unique
procedural posture of this case, this court’s decision
and remand order disposing of the parties’ prior appeals
constituted a reversal of a judgment, which commands
a new effective date, rather than an affirmance of a
judgment, which would operate retroactively. Because
the original financial orders were superseded by those
contained in the court’s intervening judgment, and that
intervening judgment was reversed by this court, the
judgment subsequently directed, which mandated a
reinstatement of the superseded financial orders, was
not effective retroactively.
The plaintiff argues, however, that the intervening
decision constituted ‘‘a legal nullity’’ and that ‘‘[b]ecause
the trial court lacked authority to open the judgment in
the first instance, that opened judgment cannot possibly
provide authority to the trial court . . . to change the
terms and effective date of the original May, 2012 judg-
ment.’’16 In support of her argument, she cites RAL
Management, Inc. v. Valley View Associates, supra, 278
Conn. 684. In that case, our Supreme Court concluded
that the trial court improperly opened the judgment of
foreclosure and set new law days, in an action our
Supreme Court described as ‘‘either a legal nullity or
an action in contravention to the appellate stay barring
actions to carry out or to enforce the judgment pending
appeal.’’ Id., 685. Accordingly, our Supreme Court con-
cluded that the defendants’ appeal ‘‘was not vitiated by
the opening of the judgment.’’ Id., 682. We find this
case distinguishable, in that the issue presented in RAL
Management, Inc., was whether a pending appeal
becomes moot when a trial court grants a motion to
open a judgment of foreclosure to set new law days.
Our Supreme Court recognized that the law days in
a judgment of strict foreclosure have no legal effect
pending the stay occasioned by an appeal because to
give them legal effect ‘‘would result in the extinguish-
ment of the right of redemption pending appeal.’’ Id.,
683. Thus, the court stated that ‘‘[i]t necessarily follows
. . . that, if the law days have no legal effect and neces-
sarily will lapse pending the appeal . . . any change
to those dates pending appeal similarly [has] no effect.’’
(Citation omitted.) Id., 684. In the present case, the
court, in opening the dissolution judgment, did not mod-
ify a provision of the judgment that already lacked legal
effect but, rather, set aside significant provisions of the
financial orders contained in the dissolution judgment.
Thus, we do not read RAL Management, Inc., as sug-
gesting that the court’s opening of the judgment in the
present case must be viewed as a legal nullity such
that reversal of that decision would not warrant a new
effective date of the judgment directed following
reversal.
Moreover, our review of this court’s opinion and its
remand order leads us to conclude that this court did
not order the reinstatement of the original judgment
retroactive to May, 2012. See Hurley v. Heart Physi-
cians, P.C., supra, 298 Conn. 384 (in carrying out man-
date of this court, trial court should ‘‘examine the man-
date and the opinion of the reviewing court and proceed
in conformity with the views expressed therein’’
[emphasis omitted; internal quotation marks omitted]).
In this court’s opinion, which disposed of two separate
appeals, we concluded that the trial court lacked
authority to open the judgment of dissolution and enter
substitute financial orders on the basis of its finding
that the plaintiff’s postjudgment misconduct had
reduced the value of the companies. Callahan v. Cal-
lahan, supra, 157 Conn. App. 91. In reciting the facts
and procedural history, this court described the rele-
vant May, 2012 orders as follows: ‘‘The court ordered
that the plaintiff transfer to the defendant all of her
right, title, and interest to the companies within sixty
days. Coincident therewith, the court ordered the defen-
dant to sign a promissory note secured by the stock
and accounts of the companies for $6 million payable
to the plaintiff, at the rate of $1 million per year for six
years. The order further provided that, if the defendant
elected to sell the companies within six months, then
he was to pay the plaintiff 55 percent of the sale pro-
ceeds, and the plaintiff was to receive no less than $4
million from the sale.’’17 Id., 82–83.
This court’s recitation of the orders it ultimately
directed the trial court to reinstate suggests that it did
not intend for the reinstatement to be effective as of
May, 2012. First, it referenced the amount and schedule
of the payments without reference to the dates set forth
within that provision. Moreover, it noted that the defen-
dant’s obligation to sign the promissory note was coinci-
dent with the plaintiff’s obligation to transfer the stock
in the companies. A conclusion that the financial orders
were effective retroactively would ignore the plaintiff’s
coincident obligation, which remains outstanding. See
part V of this opinion. Last, this court referenced the
defendant’s option to sell the companies and pay the
plaintiff for her interest in an alternative manner. To
conclude that the judgment was effective retroactively
would deprive the defendant of the opportunity to take
advantage of that option and pay the plaintiff as set
forth in paragraph 11 (a) of the dissolution judgment.18
See footnote 11 of this opinion.
We also look to the rescript in this court’s opinion,
which provides: ‘‘The judgment granting the motion to
open is reversed and the case is remanded with direc-
tion to reinstate the May, 2012 financial orders. The
judgment is affirmed in all other respects.’’ Id., 101.
Construing the remand order; see Barlow v. Commis-
sioner of Correction, 328 Conn. 610, 612–13, 182 A.3d
78 (2018) (appellate court has authority to interpret its
own rescript); we conclude that it is not reasonable
to interpret the direction to ‘‘reinstate’’ the May, 2012
financial orders as an instruction to the trial court to
reinstate the orders retroactively to May, 2012. See Con-
necticut National Bank v. Great Neck Development Co.,
supra, 215 Conn. 147 (stating, in context of determining
whether motion to set aside judgment of dismissal was
filed within four month period, that ‘‘[e]ven had the
original judgment been reinstated, its effective date
would have been November 1, 1988, and not the date
it was first rendered’’ [emphasis added]). We think that
had this court intended to direct the trial court to rein-
state the May, 2012 financial orders retroactively to the
date of the original judgment of dissolution, it would
have included additional language, either in the body
of the opinion or in its remand order, directing the trial
court accordingly. See Gary Excavating Co. v. North
Haven, 163 Conn. 428, 430, 311 A.2d 90 (1972) (‘‘[n]o
judgment other than that directed or permitted by the
reviewing court may be rendered, even though it may
be one that the appellate court might have directed’’
[internal quotation marks omitted]). The date May,
2012, was employed to identify which financial orders
were reinstated.
The plaintiff argues that ‘‘[l]ike other postjudgment
interest cases, the accrued interest provision in the May,
2012 orders was meant to compensate [her] for ‘the
loss of the use of the money that . . . she is awarded
from the time of the award until the award is paid in
full,’ ’’ citing a case involving the application of General
Statutes § 37-3a, DiLieto v. County Obstetrics & Gyne-
cology Group, P.C., 310 Conn. 38, 55, 74 A.3d 1212
(2013). ‘‘A trial court must make two determinations
when awarding compensatory interest under § 37-3a:
(1) whether the party against whom interest is sought
has wrongfully detained money due the other party;
and (2) the date upon which the wrongful detention
began in order to determine the time from which inter-
est should be calculated.’’ (Internal quotation marks
omitted.) Marshall v. Marshall, 151 Conn. App. 638,
653, 97 A.3d 1 (2014); see also Sosin v. Sosin, 300 Conn.
205, 245, 14 A.3d 307 (2011) (trial court did not abuse
discretion under § 37-3a in ordering interest from Sep-
tember 8, 2005, and it must be assumed that trial court
determined that, until that time, plaintiff’s retention of
money was not entirely unjustified); Bruno v. Bruno,
supra, 177 Conn. App. 611, 613–14 (where 2008 dissolu-
tion judgment awarded defendant certain assets in
Charles Schwab account, and appellate court subse-
quently found error in trial court’s postjudgment valua-
tion of account, trial court on remand did not abuse its
discretion in awarding postjudgment interest on
amount due from that account from September 30, 2014,
which was date on which trial court on remand estab-
lished value of that account).
Although the present case does not involve statutory
interest, it is worth noting that § 37-3a ‘‘authorizes an
award of interest in civil actions . . . as damages for
the detention of money after it becomes payable.’’
(Emphasis added.) DiLieto v. County Obstetrics &
Gynecology Group, P.C., supra, 310 Conn. 43 n.8. In the
present case, the sums set forth in the dissolution’s
financial orders were no longer payable once the court
opened the dissolution judgment and, therefore, the
plaintiff’s argument that she should be compensated
for the loss of use of that money is without foundation.
Accordingly, we conclude that the trial court properly
interpreted this court’s mandate in determining the
effective date of the judgment.
V
The plaintiff next claims that the court erred in order-
ing her to execute certain documents to transfer her
interest in the companies, as contemplated by the disso-
lution judgment. She argues broadly that the ‘‘complex
commercial document[s]’’ prepared by the defendant
were inconsistent with the dissolution judgment’s
requirement that she ‘‘transfer’’ her interest. Specifi-
cally, she argues that the defendant’s proposed docu-
ments were improper in three main respects.19 First,
she challenges the inclusion of a general release, which
she contends was not required by the May, 2012 finan-
cial orders. Second, she argues that the documents
require the plaintiff to make representations and war-
ranties that she cannot make on the basis of her per-
sonal knowledge. Third, she emphasizes the difference
between a ‘‘transfer’’ of her interest, which the dissolu-
tion court ordered, and a ‘‘sale’’ of her interest, which
she contends was not contemplated by the dissolution
judgment. She argues that ‘‘there was no language in
the property orders that indicates the companies should
be sold at fair market value.’’ We disagree that the court
acted outside of its authority to issue postjudgment
orders effectuating the dissolution judgment.
The following additional facts and procedural history
are relevant to this claim. As noted previously, para-
graph 11 of the May, 2012 dissolution judgment required
the plaintiff to transfer to the defendant ‘‘all of her right,
title and interest to the Pentalpha companies’’ within
sixty days. Coincident with the transfer, the defendant
was required to sign a promissory note secured by the
stock and accounts of the companies in the amount of
$6 million.20 See part IV of this opinion. Following this
court’s decision resolving the parties’ prior appeals, the
defendant, in October, 2015, provided the plaintiff with
a proposed document to effectuate the transfer of her
interest. The plaintiff thereafter filed a motion for con-
tempt, in which she argued that the defendant had wil-
fully failed to provide her with the promissory note
within the time frame required and that ‘‘the defendant
has acted in bad faith by submitting an onerous docu-
ment beyond the scope of the judgment.’’ Specifically,
she argued that the draft document improperly required
her to ‘‘make representations and disclosures about the
Pentalpha companies that she is [in] no position to
make since she has not been actively working at the
company since 2009.’’
The court heard the contempt motion on April 10,
2018. The plaintiff presented no witnesses, as her coun-
sel took the position that no testimony was required.
He maintained that the court could decide the motion on
the basis of both parties’ proposed transfer documents,
which had been entered into evidence. The defendant
presented the testimony of Attorney William Perrone,
who was qualified as an expert in the area of business
transactions. Perrone testified regarding the type of
legal documents necessary to effectuate the sale of a
company. The plaintiff’s counsel objected to Perrone’s
testimony on the ground that the dissolution judgment
required a transfer of the plaintiff’s interest, not a sale.
The court overruled the objection, and Perrone testified
that the terms transfer and sale are synonymous. Specif-
ically, he testified: ‘‘[I]n corporate parlance, transfer
and sale are used interchangeably. Quitclaim, which is
a term that is more prevalent in real estate, is also used
outside of the real estate world to denote a transaction
in which an asset is transferred but there’s no . . .
backup. It’s basically what I have—literally what I have,
you have. You have no representations. You have no
warranties. You have no indemnification, no pro-
tection.’’
Perrone testified that buyers look to representations
and warranties to determine the value of the transac-
tion. He further opined that the sale of a business that
operates in a regulated industry, such as the present
companies, requires more fulsome representations and
warranties, which he stated ‘‘essentially make the seller
stand behind everything from compliance with laws,
to observation of rules regarding data privacy, to the
accuracy of financial statements, to whether or not
there [are] any environmental issues.’’
Perrone reviewed each party’s proposed transfer doc-
uments. The document prepared by the defendant’s
counsel, dated October 27, 2015, and titled ‘‘Agreement
Under Section 11 of Order dated May 8, 2012,’’ was
entered into evidence as the defendant’s exhibit D. Per-
rone opined that exhibit D contained standard represen-
tations and warranties for a transaction of this size
and that it would permit the defendant to transfer the
companies at fair market value. The documents pre-
pared by the plaintiff’s counsel, including a promissory
note, assignment, and pledge and security agreement,
were entered into evidence as the defendant’s exhibit
E.21 Perrone testified that exhibit E contained no repre-
sentations or warranties, and that the lack thereof
would adversely impact the value of the companies as
held by the defendant or to a potential third party buyer.
On cross-examination, the plaintiff’s counsel asked Per-
rone to identify the provision of the dissolution judg-
ment that ensured that the defendant could sell the
companies at fair market value. Perrone responded that
the provisions setting forth the valuation of the compa-
nies and permitting the defendant to sell the companies,
when read together, implicitly contemplate that the
defendant should have the opportunity to sell the com-
panies at fair market value.
As to the specific terms of the defendant’s proposed
transfer documents, Perrone acknowledged that certain
provisions contained in exhibit D required amendment
because they were inconsistent with the dissolution
judgment, in that they purported to transfer the plain-
tiff’s interest ‘‘free and clear of any pledge, security
interest, lien, charge or other encumbrance . . . .’’ Per-
rone testified that the document required ‘‘a carve out
. . . for the discrete lien that is called for by the order.’’
With respect to the release contained in exhibit D, Per-
rone testified that ‘‘[i]t’s customary when shareholders
are exiting a business that they . . . execute and
deliver a release, and the reason for that is that you
make your deal and you pay somebody for their shares;
you don’t want them coming back after the fact and
saying, well, yeah, about that dividend, about this, about
that, what about this money that I was owed. You want
a clean break when someone sells.’’ He stated that a
release is ‘‘common in this context’’ and opined that
with the same carve out for obligations that were owed
under the note, the release would be acceptable.
In closing argument, the plaintiff’s counsel asked the
court, in the event it declined to find the defendant
in contempt, to order him to execute the plaintiff’s
proposed documents, which the plaintiff contended
conformed to the dissolution judgment. In its oral rul-
ing, the court found the relevant provisions of the judg-
ment, namely, paragraph 11 requiring transfer of the
plaintiff’s interest and paragraph 17 requiring the execu-
tion of all documents necessary to effectuate the orders
within thirty days, to be clear and unambiguous. The
court credited Perrone’s testimony and noted that para-
graph 17 contemplates other documents that would not
specifically be mentioned in the judgment. Finding a
failure to comply with the court’s order to sign a promis-
sory note but that such failure was not wilful, the court
declined to find the defendant in contempt. The court
then issued the following remedial order: ‘‘In order to
effectuate these orders, and the court finds the word[s]
transfer and sale as defined by [Perrone] to be inter-
changeable, the court finds that exhibit D, with the
representations and warranties, is the normal and cus-
tomary document to transfer these types of assets. How-
ever, the document as presented wasn’t perfect, and
counsel pointed out a few items regarding the security
and paragraph 4.4,22 [and] some of the language on page
thirty eight.23
‘‘So, the court finds that exhibit D is normal and
customary for these types of transactions, and is issuing
a remedial order ordering the plaintiff to execute the
documents in the line of exhibit D as amended with a
few of the items.
‘‘Now, there may be a few other items that weren’t
picked up through [Perrone’s] examination, and I don’t
expect that to be an exhaustive list of other things that
might have been just overlooked because I don’t think
the details have been strictly negotiated by the parties.
So, the court will use that as a guideline, including the
general release, all the documents as provided.
‘‘And the court’s going to reserve jurisdiction over
this. I do not believe that this is an additional order.
This is to effectuate the order of Judge Munro from
[the May, 2012 dissolution judgment].’’ (Footnotes
added.) At the parties’ request, the court ordered the
plaintiff’s counsel, within ten days, to review the docu-
ments and provide comments to the defendant’s coun-
sel, who would then have ten days to respond, and the
parties could then return to court for resolution of any
remaining issues.
We begin by setting forth the standard governing
our review of the court’s order regarding the transfer
documents. ‘‘Although the court does not have the
authority to modify a property assignment, a court,
after distributing property, which includes assigning
the debts and liabilities of the parties, does have the
authority to issue postjudgment orders effectuating its
judgment. . . . [I]f the . . . motion . . . can fairly be
construed as seeking an effectuation of the judgment
rather than a modification of the terms of the property
settlement, this court must favor that interpretation.’’
(Internal quotation marks omitted.) O’Halpin v. O’Hal-
pin, 144 Conn. App. 671, 677–78, 74 A.3d 465, cert.
denied, 310 Conn. 952, 81 A.3d 1180 (2013). ‘‘A modifica-
tion is [a] change; an alteration or amendment which
introduces new elements into the details, or cancels
some of them, but leaves the general purpose and effect
of the subject-matter intact. . . . In contrast, an order
effectuating an existing judgment allows the court to
protect the integrity of its original ruling by ensuring
the parties’ timely compliance therewith.’’ (Internal
quotation marks omitted.) Id., 677.
‘‘In order to determine the practical effect of the
court’s order on the original judgment, we must exam-
ine the terms of the original judgment as well as the
subsequent order.’’ Stechel v. Foster, 125 Conn. App.
441, 447, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904,
12 A.3d 572 (2011). ‘‘Because [t]he construction of a
judgment is a question of law for the court . . . our
review of the . . . claim is plenary. As a general rule,
judgments are to be construed in the same fashion as
other written instruments. . . . The determinative fac-
tor 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 to that which
is expressed. . . . The judgment should admit of a con-
sistent construction as a whole.’’ (Internal quotation
marks omitted.) Perry v. Perry, 156 Conn. App. 587,
593, 113 A.3d 132, cert. denied, 317 Conn. 906, 114 A.3d
1220 (2015).
Before turning to the specific provisions of exhibit
D that the plaintiff finds objectionable, we first address
the plaintiff’s broader argument that the court erred
in requiring her to execute a ‘‘ ‘negotiated’ complex
commercial document.’’ In its remedial order regarding
the transfer documents, the court found that a docu-
ment of the type of exhibit D, including the representa-
tions and warranties and release contained therein, was
required to transfer the plaintiff’s interest in what the
court described as ‘‘an asset that has significant value
. . . .’’ In so finding, the court credited the testimony
of Perrone, who opined that especially in the case of
a regulated industry, a transfer of the plaintiff’s interest
would require fulsome representations and warranties
in order to preserve the fair market value of the compa-
nies. Our review of the record indicates that the court’s
credibility determination was not clearly erroneous,
and we thereby defer to the court’s conclusion regard-
ing the credibility of Perrone’s testimony. See Budraw-
ich v. Budrawich, 156 Conn. App. 628, 646, 115 A.3d
39, cert. denied, 317 Conn. 921, 118 A.3d 63 (2015).
As to whether the original judgment should be con-
strued to require such a transfer, the plaintiff argues
that ‘‘there was no language in the property orders that
indicates the companies should be sold at fair market
value.’’ During the dissolution trial and first appeal,
the disposition of the companies, which were valued
collectively in excess of $10 million, was a central issue.
Notably, both parties proposed that the companies be
sold. Callahan v. Callahan, supra, 157 Conn. App. 98.
Despite finding that ‘‘neither party wants the Pentalpha
companies,’’ the court ordered the plaintiff to transfer
her interest in the companies to the defendant in
exchange for the defendant’s execution of a promissory
note. Although the court declined to order a sale, its
orders anticipated that the defendant might elect to
sell the companies. In the event that he did sell the
companies, the plaintiff was to receive no less than $4
million from the sale. Thus, both parties and the court
envisaged a potential sale of the companies. As to
whether the transfer documents should be drafted in
order to permit a sale at fair market value, it is signifi-
cant that the amount of the promissory note correlated
with the valuation of the companies, in that the note
in the amount of $6 million was to be exchanged for the
plaintiff’s 51 percent interest in the companies valued
at $11,747,660. Accordingly, we do not find persuasive
the plaintiff’s argument premised on the absence of
language expressly contemplating a sale at fair market
value. Indeed, it would be inconsistent with the distribu-
tion of the parties’ assets to allow the plaintiff to transfer
her interest by way of a document that effected a signifi-
cant reduction in the value of the companies. Thus, we
construe the judgment as requiring a transfer of her
interest in a manner that preserves the fair market value
of the companies.
Having concluded generally that a document of the
type and breadth of exhibit D is required to effectively
transfer the plaintiff’s interest, we turn to the plaintiff’s
challenges to the specific provisions of that document.
She argues that a general release was not required by
the May, 2012 financial orders.24 Perrone testified that
the release provided in exhibit D was customary in the
context of a shareholder exiting a business and that
the purpose of a release in that context is to ensure
a ‘‘clean break’’ and provide assurance against future
claims alleging unpaid dividends or other sums owed.
The plaintiff presented no evidence to refute Perrone’s
testimony that such a release was customary. We con-
clude that the inclusion of a release in the transfer
documents did not constitute a modification of the dis-
solution judgment.
With respect to the plaintiff’s broadly stated concern
that she was unable to make certain representations
because she had been ‘‘absent from running the com-
pany since 2009,’’ she relied solely on the court’s finding
in the judgment of dissolution that ‘‘[t]he plaintiff’s full
and final resignation from actual work . . . occurred
in September, 2009.’’25 Aside from repeating that finding,
the plaintiff presented no evidence to demonstrate her
inability to make particular representations. Although
the plaintiff declined to call any witnesses during the
hearing, she had the opportunity to challenge specific
provisions through her counsel’s examination of
Perrone.
As to inconsistencies she identified during the hear-
ing, the trial court expressly acknowledged such provi-
sions as requiring amendment prior to execution of the
transfer documents. For example, the transcript reveals
that the plaintiff’s counsel questioned Perrone regard-
ing paragraph 4.4, which provided: ‘‘No Undisclosed
Liabilities. The Company is not subject to any liability
(including unasserted claims, whether known or
unknown), whether absolute, contingent, accrued or
otherwise, that is not shown or that is in excess of
amounts shown or reserved for in the Financial State-
ments, other than liabilities of the same nature as those
set forth in the Financial Statements and reasonably
incurred in the ordinary course of business after the
Financial Statements Date, whether or not material.’’
Perrone agreed that paragraph 4.4 was not necessary,
and the court’s order expressly identified that provision
as one requiring amendment prior to the plaintiff’s exe-
cution. Although the plaintiff provides examples in her
supplemental appellate brief of representations and
warranties she finds objectionable, our review of the
record reveals that she neither set forth the particular
provisions in her motion for contempt, nor identified
these provisions to the trial court during the hearing.
Thus, we need not address these arguments. See Histen
v. Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006)
(argument need not be addressed because plaintiff
never made it in proceedings before trial court).
‘‘[I]t is within the equitable powers of the trial court
to fashion whatever orders [are] required to protect the
integrity of [its original] judgment.’’ (Internal quotation
marks omitted.) Fewtrell v. Fewtrell, 87 Conn. App. 526,
531 n.4, 865 A.2d 1240 (2005). We conclude that the
court’s order requiring the plaintiff to execute the defen-
dant’s proposed transfer documents, as amended to
correct inconsistencies identified during the hearing,
effectuated rather than modified the existing judgment
of dissolution.
VI
The plaintiff’s last claim on appeal is that the court
improperly concluded that it lacked subject matter
jurisdiction to require the defendant to endorse two
insurance checks totaling $440,370.58. Specifically, she
argues that the court’s failure to issue an order compel-
ling the defendant to endorse the checks, which were
issued following postdissolution property damage to
the former marital home, was tantamount to an imper-
missible modification of the original property division,
in that the plaintiff was deprived of the full value of
the home. She argues that an order requiring the defen-
dant to endorse the checks is necessary to effectuate
and preserve the dissolution judgment.26 The defendant
responds that the court correctly determined that it
lacked authority to distribute the insurance proceeds
because the funds were acquired after the dissolution
of the marriage and ‘‘family courts do not have the
authority to make postjudgment property distribution
awards or to adjudicate postjudgment tort or contract
claims between two divorced persons relating to new
assets.’’ We conclude that the court lacked authority
to enter an order with respect to the checks.
The following additional procedural history is rele-
vant to this claim. On March 28, 2017, the plaintiff filed
a motion requesting that the court order the defendant
to endorse two Chubb property damage insurance
checks totaling $440,370.58. In her motion, she repre-
sented the following facts. The defendant had occupied
the former marital home following the dissolution until
October 9, 2015. After he vacated the home, the insur-
ance policy issued by Chubb remained in both his and
the plaintiff’s names, and he continued to make pre-
mium payments from October 9, 2015 through March
24, 2017. His name also remained on the mortgage for
the property. At some point after he vacated the prop-
erty on October 9, 2015, the pipes burst. The plaintiff
filed an insurance claim for the resulting damage. In her
motion requesting that the court order the defendant
to endorse the checks, she stated: ‘‘Chubb appraised
the damage and issued the first set of insurance damage
checks in June, 2016 ($163,429.42 and $276,941.16). A
second replacement set of checks was issued approxi-
mately one month later to include James Callahan. The
checks are made out to [the] parties, and one check
includes Citibank Mortgage.’’ The defendant refused
to endorse the checks, preventing the plaintiff from
receiving the proceeds to repair the damage to the
home.
On March 31, 2017, the defendant filed an objection,
in which he argued that the plaintiff’s request that the
court adjudicate ownership rights to the checks issued
relating to damage that occurred following the dissolu-
tion of the parties’ marriage was improper. He con-
tended that the court lacked authority ‘‘to adjudicate
postjudgment disputes relating to the diminished value
of property awarded to one of the spouses.’’ On March
14, 2018, the plaintiff filed a memorandum of law in
support of her motion. In her memorandum, she argued
that an order requiring the defendant to endorse the
checks was necessary to effectuate the provision of the
dissolution judgment that awarded the former marital
home to the plaintiff.27 She further directed the court’s
attention to paragraph 17 of the May, 2012 dissolution
judgment, which provides: ‘‘Both parties shall execute
all necessary documents for the effectuation of these
orders within thirty (30) days, unless other specific
times are already provided herein.’’
On April 3, 2018, the court, Diana, J., heard the plain-
tiff’s motion. After argument, the court issued an oral
ruling denying the motion. It stated: ‘‘I’ve considered
the statutory breakdown of what’s an asset, listened to
your arguments, and reviewed the motions. The court
finds this is an after-acquired asset, and it does not have
jurisdiction to address this matter under [§] 46b-81.’’28
We begin with our standard of review. The plaintiff’s
claim implicates the scope of the court’s authority to
act postdissolution with respect to the dispute over
the insurance checks. ‘‘Any determination regarding the
scope of a court’s . . . authority to act presents a ques-
tion of law over which our review is plenary.’’ (Internal
quotation marks omitted.) McLoughlin v. McLoughlin,
157 Conn. App. 568, 578, 118 A.3d 64 (2015).
‘‘It is well settled that [c]ourts have no inherent power
to transfer property from one spouse to another;
instead, that power must rest upon an enabling statute.
. . . The court’s authority to transfer property [in] a
dissolution proceeding rests on [General Statutes]
§ 46b-81. That section provides in relevant part: At the
time of entering a decree . . . dissolving a marriage
. . . the Superior Court may assign to either the hus-
band or wife all or any part of the estate of the other
. . . . Accordingly, the court’s authority to divide the
personal property of the parties, pursuant to § 46b-81,
must be exercised, if at all, at the time that it renders
judgment dissolving the marriage.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Id., 578–79.
In support of her argument that the court had author-
ity to order the defendant to endorse the checks as an
effectuation of the dissolution judgment, the plaintiff
cites Cifaldi v. Cifaldi, 118 Conn. App. 325, 983 A.2d 293
(2009). In that case, the parties entered into a separation
agreement, the terms of which were incorporated into
the dissolution judgment. Id., 327. Pursuant to that
agreement, the parties agreed to have qualified domes-
tic relations orders (QDROs)29 prepared to divide the
defendant’s two pensions. Id. At the time the defendant
retired, the QDROs had not yet been processed by either
pension plan administrator. Id., 328–29. The defendant
went into pay status with respect to his pensions, and
his payments included the portions of the pensions
that had been assigned to the plaintiff. Id. The plaintiff
sought an order of the court requiring the defendant to
reimburse her portion of his pension benefits, which
the court declined to issue. Id., 329–30. On appeal, this
court concluded that the trial court improperly declined
to issue the requested order because such order was
necessary to effectuate the judgment. Id., 330.
‘‘[W]hen a party has been denied marital property to
which the party is entitled as part of the allocation
of property pursuant to a judgment of dissolution of
marriage, and the aggrieved party seeks relief from the
court, the court is under an affirmative obligation to
issue financial orders effectuating the existing alloca-
tion of marital property to protect the integrity of the
original judgment, subject to equitable defenses. To
hold otherwise would allow a court to modify a property
distribution simply by its own silence or inaction.’’ Id.,
334. We conclude that Cifaldi is distinguishable from
the present case, in that the judgment in Cifaldi
afforded the plaintiff a property interest in portions of
the defendant’s pension benefits, and she never
received this asset. Thus, the provision of the dissolu-
tion judgment at issue had not been effectuated. In
contrast, the plaintiff in the present case received the
asset awarded to her by the dissolution provision at
issue. The plaintiff does not dispute that she both
owned, and was in possession of, the home at the time
the damage occurred and the checks were issued.
She argues, however, that the proceeds from the
insurance checks should be ‘‘used as intended, i.e., to
protect the integrity of the original judgment, including
the value of the marital home,’’ which, according to
the plaintiff, was reduced by $440,370.58 due to the
defendant’s failure to endorse the checks. The defen-
dant responds that even if the damage was regarded
as causing a postjudgment change affecting the value
of the home, this court, in its prior decision in this
matter, rejected the argument that the court could
revisit the judgment on a similar basis. The defendant
points to this court’s recognition in the parties’ prior
appeals that ‘‘neither § 46b-81 nor any other closely
related statute vests the trial court with authority to
revisit a judgment dividing marital property where post-
judgment conduct, conditions, or changes affect the
value of a marital asset.’’ Callahan v. Callahan, supra,
157 Conn. App. 92. The defendant further argues that
Buehler v. Buehler, 138 Conn. App. 63, 66, 50 A.3d 372
(2012), controls. In that case, the trial court entered
orders at the time of dissolution relating to the marital
home, including that the home be sold. Id. In postjudg-
ment orders, the court permitted the home to be rented
and awarded the defendant the rental income generated
by the home. Id., 71. On appeal, this court determined
that the court acted without authority in assigning the
rental income wholly to the defendant, as such order
constituted an improper postjudgment property assign-
ment in violation of § 46b-86 (a). Id.
In the present case, the court in its May, 2012 dissolu-
tion judgment awarded the plaintiff the former marital
home and that distribution was effectuated when own-
ership vested in the plaintiff. Subsequent to the effectua-
tion of the judgment, damage to the home caused a
change in its value. Under these circumstances, the trial
court lacked authority to revisit its property distribution
orders or enter additional property distribution orders
to compensate the plaintiff for the alleged postjudgment
reduction in value of the home. See Callahan v. Cal-
lahan, supra, 157 Conn. App. 89 (stating general rule
that ‘‘[t]he court’s authority to distribute the personal
property of the parties must be exercised, if at all, at the
time that it renders judgment dissolving the marriage’’
[internal quotation marks omitted]). Moreover, to the
extent the proceeds of the insurance checks are viewed
not as a reflection of the reduction in value of the home
but rather as a new asset acquired pursuant to a contract
of insurance in effect after the parties’ marriage had
been dissolved, such proceeds would not be marital
property distributable under § 46b-81. See Reinke v.
Sing, 328 Conn. 376, 381 n.3, 179 A.3d 769 (2018) (‘‘[t]he
purpose of a property division pursuant to a dissolution
proceeding is to unscramble existing marital property
in order to give each spouse his or her equitable share
at the time of dissolution’’ [internal quotation marks
omitted]); Wood v. Wood, 160 Conn. App. 708, 716, 125
A.3d 1040 (2015) (‘‘the marital estate divisible pursuant
to § 46b-81 refers to interests already acquired, not to
expected or unvested interests, or to interests that the
court has not quantified’’ [internal quotation marks
omitted]).
We therefore conclude that the court lacked authority
under § 46b-81 to issue postjudgment orders regarding
the insurance checks.
The plaintiff’s appeal regarding the suspension of
alimony payments is dismissed as moot. The judgments
are affirmed in all other respects.
In this opinion the other judges concurred.
1
With respect to the plaintiff’s sixth claim, although the court used the
term ‘‘jurisdiction,’’ we note that the postdissolution distribution of property
does not implicate the court’s subject matter jurisdiction but, rather, its
statutory authority. See Reinke v. Sing, 328 Conn. 376, 391–92, 179 A.3d 769
(2018) (General Statutes § 46b-86 [a] does not deprive trial court of subject
matter jurisdiction to modify property distribution order).
2
See footnote 1 of this opinion.
3
In one sentence in each of her principal and reply briefs, the plaintiff
maintains that ‘‘the trial court would not allow the plaintiff to present expert
testimony on the absence of any substantial change in the defendant’s
earning capacity independent of Pentalpha.’’ The plaintiff provides no cita-
tion to authority or analysis as to any argument that the court improperly
precluded expert testimony. Accordingly, to the extent she seeks to chal-
lenge the court’s preclusion of expert testimony, that issue is inadequately
briefed, and we decline to address it. See Gorski v. McIsaac, 156 Conn.
App. 195, 209, 112 A.3d 201 (2015) (‘‘We are not obligated to consider issues
that are not adequately briefed. . . . Whe[n] an issue is merely mentioned,
but not briefed beyond a bare assertion of the claim, it is deemed to have been
waived. . . . In addition, mere conclusory assertions regarding a claim,
with no mention of relevant authority and minimal or no citations from the
record, will not suffice.’’ [Internal quotation marks omitted.]).
4
The plaintiff suggests, without citation to any authority, that this claim
should be afforded plenary review. We disagree.
5
The court, in its May, 2012 dissolution judgment, stated that its ‘‘alimony
order is predicated on earnings, including member distributions to the defen-
dant of up to $2 million per year.’’ It further stated that ‘‘[f]inding earnings
attributable to the defendant in the amount of $2 million gross is conserva-
tive, [and] the court adopts it as a finding of fact as to the present earning
capacity of the defendant at Pentalpha.’’ In support of that finding, the court
noted that ‘‘the plaintiff’s valuation expert, Barry Sziklay, concluded that a
comparable compensation for the defendant, as the key person operating
on Wall Street, would be at least in the [$1 million to 2] million range
annually.’’ On appeal, this court reiterated these findings. Callahan v. Cal-
lahan, supra, 157 Conn. App. 97.
In the present appeal, the plaintiff asks this court to find error in the trial
court’s tying the defendant’s earning capacity to his full-time employment
at the companies. In making this argument, the plaintiff urges this court to
require the trial court to establish the defendant’s earning capacity on the
basis of his pre-1995 employment. We find no error in the trial court’s
decision to refrain from doing so.
6
During oral argument before this court, the plaintiff’s counsel argued
that the plaintiff experienced an injury at the time of the suspension, but
recognized that were this court to uphold the alimony modification, the
plaintiff’s claim of error in the suspension of the alimony payments would
be rendered moot.
7
We note that the record reveals other occurrences on which the plaintiff’s
counsel did not attend scheduled court hearings.
8
In an ex parte emergency motion dated April 27, 2017, the plaintiff
requested immediate reinstatement of her monthly alimony payments retro-
active to April 1, 2017. She represented that she was available to return to
court to attend the trial and that she had requested the earliest available
trial dates. The court denied the motion and indicated that it would address
the matter at the next scheduled hearing date. The parties appeared before
the court on May 12, 2017, on which date the plaintiff was present. The
court found that there was ‘‘nothing substantial that has changed’’ and
declined to change its order.
9
Specifically, the court found ‘‘[t]hat the orders herein have created a
substantial overpayment of periodic alimony by the defendant; that for the
period July 1, 2014 through and including August 1, 2017, the defendant has
paid the sum of $1,990,000 (33 months x $60,000 plus 1 month [at] $10,000);
that for the period April, 2017 through June, 2017, payment of the defendant’s
alimony obligation was suspended; that after taking into account the new
orders herein retroactive to July 1, 2014, the defendant’s total alimony
obligation since that date is $660,000 (18 months x $24,000 plus 19 months
x $12,000); and that the overpayment of periodic alimony amounts to
$1,330,000.’’ (Emphasis omitted.) The court thereafter ordered the plaintiff
to reimburse the defendant the amount of overpayment in installments.
10
We note that the plaintiff makes no claim on appeal that the court erred
in calculating the amount of the defendant’s overpayment.
11
Paragraph 11 continues: ‘‘a. If the defendant chooses to sell 100 percent
interest in all of the Pentalpha companies within the next six months, then
the defendant shall in full satisfaction of the note here above described pay
her 55 percent of the proceeds of the sale, net of all sums necessary to pay
upon sale, except any sums payable to the defendant, or for his benefit, for
any reason. The defendant is entitled to a dollar for dollar setoff against
that payment for all payments made to the plaintiff under this numbered
order, so long as she receives no less than $4,000,000 from the sale. Other-
wise, he is not entitled to any such setoff. No other terms of sale than those
described herein shall trigger this section.
‘‘b. If the plaintiff brings a civil action against the defendant and/or the
Pentalpha companies for any rights or interests she perceives have been
violated, other than those provided for in these orders, and recovers any
sums therefor, the defendant shall have a dollar for dollar right of setoff of
said sums paid to the plaintiff against his obligations in this paragraph
eleven.’’
12
The replacement orders provided: ‘‘a. The plaintiff shall immediately
(within ten [10] days) resign from all positions at the Pentalpha companies
and execute a general release in favor of the defendant for all claims she
has, or may have, for conduct arising out of the parties’ management and
ownership of the Pentalpha companies.
‘‘b. The plaintiff shall also execute an agreement to provide such documen-
tation as required [by] Pentalpha’s attorneys from time to time, relating to
any time period that she had an ownership interest in Pentalpha or held
herself out as an officer, principal, a part of management or owner of
Pentalpha. Upon her execution of this agreement, the defendant shall exe-
cute a note payable to the [plaintiff] in the amount of $3,000,000 payable
as follows:
‘‘i. $1,000,000 upon the conclusion to final judgment or withdrawal of the
plaintiff’s lawsuit against the auditor for all claims arising out of the auditors’
work for the Pentalpha companies. The court conditions this payment upon
this inasmuch as the lawsuit is a significant impediment to the smooth
operation of the Pentalpha companies and their ability to borrow money
(e.g., the typical need for a clean audit to borrow) so that the businesses
can continue to operate with reduced income and support the ability of the
defendant to pay this obligation;
‘‘ii. $1,000,000 on the first annual anniversary of the first payment; and
‘‘iii. $1,000,000 on the second such anniversary of the first payment.
‘‘c. If the plaintiff refuses to cooperate with the signing of any document
deemed necessary by a Pentalpha attorney in response to a particular inquiry,
the defendant shall be excused from the next anniversary payment until
and unless a court of competent jurisdiction determines that the plaintiff
shall be excused from signing such requirement regarding the issue then at
hand. Any overdue payments to the plaintiff as a result of this circumstance
shall not accrue interest until and unless she is so excused by a final order
of the court, in which case the interest shall accrue from 30 days after that
final order.
‘‘d. If the defendant fails to make payments in a timely manner (note the
exception is subparagraph d above), they shall accrue interest, from their
due date at the rate of 5 [percent] per annum, simple interest.’’
13
Pending resolution of the defendant’s appeal, execution of the financial
orders regarding the companies was stayed. See Practice Book § 61-11 (a).
The plaintiff filed a motion for termination of the stay of execution, which
the court, Munro, J., denied. See Practice Book § 61-11 (e). Callahan v.
Callahan, supra, 157 Conn. App. 83.
14
Specifically, she argued: ‘‘1. The defendant has failed to pay the plain-
tiff—$4,000,000, plus interest at 5 [percent] from June 1, 2012 (per [para-
graph] 11 of the judgment) or 10 [percent] interest due to his default. This
amount represents four of the six equal annual payments already due,
together with the accrued interest at 5 [percent] from June 1, 2012, to date
of payment on the total due of $6,000,000. Such accrued interest totals
$972,146.80 to June 25, 2015. As payment has not been made as per judgment,
the entire amount due of $6,000,000 and accrued interest is in default and
will accrue interest at 10 [percent] from June 26, 2015 until such amount
is paid (per [paragraph] 11 of the judgment at pages 23 and 23).
‘‘2. The defendant has failed to execute a promissory note secured on the
stock and accounts of the Pentalpha companies in the amount of the unpaid
balance of the $6,000,000, plus all accrued interest at the 5 [percent] interest
rate or default rate of 10 [percent] per year (per [paragraph] 11 of the
judgment at page 24).
‘‘3. The defendant has failed to pay the plaintiff $600,000, together with
accrued interest at 5 [percent] from August 6, 2012 (per [paragraph] 12 of
the judgment) to date of payment. Such accrued interest totals approximately
$91,552.45 as of to date.’’
15
This court granted the plaintiff’s motion for permission to file a late
second amended appeal from Judge Shay’s May 4, 2016 decision. The plaintiff
filed her amended appeal on October 5, 2018, and subsequently filed a
supplemental brief on October 19, 2018.
16
This court concluded that the trial court ‘‘exceeded the scope of its
authority by opening the judgment to modify its financial orders based on
the plaintiff’s postjudgment misconduct.’’ Callahan v. Callahan, supra, 157
Conn. App. 93.
17
Subsequently in the opinion, this court similarly described the orders
as follows: ‘‘On May 8, 2012, the court ordered that the plaintiff transfer to
the defendant all of her rights, title, and interest to the companies. In
exchange, the court ordered the defendant to sign a promissory note, secured
by the stock and accounts of the companies, requiring him to pay the plaintiff
$1 million per year for six years for her share in the companies. The order
further provided that, if the defendant elected to sell the companies within
six months from the dissolution judgment, then he was to pay the plaintiff
55 percent of the sale proceeds, and the plaintiff was to receive no less
than $4 million from the sale.’’ (Emphasis added.) Callahan v. Callahan,
supra, 157 Conn. App. 98.
18
The plaintiff argues that the court’s decision as to the effective date of
the judgment constituted an impermissible modification of the property
distribution. The defendant responds that the decision was an effectuation
of the trial court’s orders, which, aside from setting forth payments to be
made by the defendant, provided him with the option to sell or finance the
companies to pay the plaintiff for her interests.
‘‘A modification is [a] change; an alteration or amendment which intro-
duces new elements into the details, or cancels some of them, but leaves
the general purpose and effect of the subject-matter intact. . . . In contrast,
an order effectuating an existing judgment allows the court to protect the
integrity of its original ruling by ensuring the parties’ timely compliance
therewith.
‘‘Although the court does not have the authority to modify a property
assignment, a court, after distributing property, which includes assigning
the debts and liabilities of the parties, does have the authority to issue
postjudgment orders effectuating its judgment. . . . [I]f the . . . motion
. . . can fairly be construed as seeking an effectuation of the judgment
rather than a modification of the terms of the property settlement, this
court must favor that interpretation.’’ (Internal quotation marks omitted.)
O’Halpin v. O’Halpin, 144 Conn. App. 671, 677–78, 74 A.3d 465, cert. denied,
310 Conn. 952, 81 A.3d 1180 (2013).
We agree with the defendant that the determination of the judgment’s
effective date was necessary in order to implement the property distribution
orders and that the court’s order protected the integrity of, rather than
modified, those orders.
19
The plaintiff also maintains that the documents are improper in a fourth
respect, in that the new promissory note delayed the accrual of interest for
three years and reset the deadlines for payments on the note. Our resolution
of the plaintiff’s fourth claim is dispositive of this argument, which requires
no further discussion here. See part IV of this opinion.
With respect to the proposed promissory note, she also argues that unlike
the May, 2012 dissolution judgment, it improperly ‘‘forbids [the] plaintiff
from transferring, bequeathing or otherwise disposing of the note in any
way.’’ Attorney William Perrone, who testified as an expert in the area of
business transactions, recognized that the dissolution judgment by its
express terms did not prohibit the plaintiff from bequeathing or transferring
the note, but testified that ‘‘I think that it’s not uncommon in a situation
like this where the note—where the paper wouldn’t be negotiable. Some-
times paper is personal because you don’t want one party to discount this
paper, sell the paper, and then have the other party be dealing with a party
that they didn’t know.’’ The plaintiff presented no evidence to the contrary
and we are not persuaded that the inclusion of a prohibition on transfer of
the note constituted a modification of the dissolution judgment.
20
We note that the court’s April 17, 2019 memorandum of decision termi-
nating the appellate stay of the court’s April 10, 2018 decision indicated that
the defendant had made payments to the plaintiff in the amount of $4 million.
21
Perrone additionally had examined a document prepared by the plain-
tiff’s prior counsel to effectuate the sale and opined that it was ‘‘essentially
a quitclaim.’’ Perrone opined that use of that document, which was titled
‘‘Promissory Note’’ and dated May 8, 2012, could reduce the sale price of
the companies to a ‘‘fire sale’’ price due to the potential buyer accepting
additional risk because of sparse representations and warranties.
22
Paragraph 4.4 of exhibit D provided: ‘‘No Undisclosed Liabilities. The
Company is not subject to any liability (including unasserted claims, whether
known or unknown), whether absolute, contingent, accrued or otherwise,
that is not shown or that is in excess of amounts shown or reserved for in
the Financial Statements, other than liabilities of the same nature as those
set forth in the Financial Statements and reasonably incurred in the ordinary
course of business after the Financial Statements Date, whether or not
material.’’
The following colloquy occurred with respect to whether the plaintiff
could make the warranty provided therein:
‘‘The Court: In your opinion, can she make that even though she hasn’t
actively been involved in the business since [2009] and she’s still the majority
owner today? Does it matter?
‘‘[The Witness]: I think—well, I think I could live—if I were negotiating
this deal, right, I could live without 4.4 because 4.5 is sufficient to cover
any activity since her resignation. Right? I mean that’s the kind of thing I
was talking about earlier today, about being able to say—
‘‘[The Plaintiff’s Counsel]: Okay. So, when you—when it was set forth in
your disclosure of expert witness that the documents presented by [the
defendant] were in conformance with the orders of Judge Munro, was it an
oversight that 4.4 was included in here?
‘‘[The Witness]: I don’t think that the—my testimony or my opinion letter
was intended to cite, to go chapter and verse, line by line with every part
of every document. Because in any document, any deal, even in this context,
ultimately there’s going to be give and take and negotiations and things like
that; the oversight regarding the no lien other than the lien that the court
ordered are going to be picked up. Right?
‘‘So, this is—this was done, you know, a while ago. I think that as a
practical matter, you—this would be negotiated, and this would come out.
But you have to look at that. So, there’s continuum from zero reps and
warranties, which is what’s being offered up, to something that is more
typical and would yield a fair result to [the defendant] being able to sell
this business and realize the best value you can and not fire sale it.’’
23
There was some discussion during the hearing as to whether certain
language contained in the document titled ‘‘Promissory Term Note and
Security Agreement,’’ on page thirty-eight of the document, required amend-
ment to conform to the promissory note. That language provided: ‘‘The
obligations under this Note and Security Agreement are not secured by any
other assets of Jim Callahan or by any of the assets of any of the Companies
. . . .’’ Ultimately, Perrone agreed that amending the language by ‘‘adding
the word other before the words assets [of any of the companies] would
cure any perceived inconsistency.’’
24
The plaintiff further argues that the release contained in exhibit D is
not limited to claims relating solely to the companies, but rather releases
the defendant from all liability. Although the plaintiff’s counsel questioned
Perrone as to the release, she failed to raise, either through inquiry of
Perrone or the presentation of evidence on her own behalf, a challenge to
the scope of the release with respect to the type of claims released. Because
the plaintiff failed to raise the scope of the release as an issue before the
trial court, we do not address it on appeal. See Histen v. Histen, 98 Conn.
App. 729, 737, 911 A.2d 348 (2006) (‘‘[W]e will not decide an appeal on an
issue that was not raised before the trial court. . . . To review claims
articulated for the first time on appeal and not raised before the trial court
would be nothing more than a trial by ambuscade of the trial judge.’’ [Internal
quotation marks omitted.]).
25
The court also noted, however, that she had performed work ‘‘on one
last occasion’’ in March, 2010.
26
The plaintiff also asserts in her supplemental brief that ‘‘the trial court
improperly declined to hold an evidentiary hearing to assess the jurisdic-
tional claim,’’ and states that she sought a hearing ‘‘to present testimony
regarding, among other things, the homeowner’s policy and to clarify mis-
characterizations made by counsel during argument.’’ In support of this
argument, she cites Oxford House at Yale v. Gilligan, 125 Conn. App. 464,
473, 10 A.3d 52 (2010), which provides generally that ‘‘[i]n almost every
setting where important decisions turn on questions of fact, due process
requires an opportunity to confront and cross-examine adverse witnesses.
. . . When issues of fact are necessary to the determination of a court’s
jurisdiction, due process requires that a trial-like hearing be held, in which
an opportunity is provided to present evidence and to cross-examine adverse
witnesses.’’ (Internal quotation marks omitted.) The defendant responds
that the plaintiff waived any claim as to the court’s failure to hold an
evidentiary hearing. On the basis of our review of the record, we conclude
that the plaintiff waived any claim that the court improperly declined to
hold an evidentiary hearing.
Addressing the day’s schedule at the outset of the hearing on April 3,
2018, the plaintiff’s counsel indicated, with respect to her motion for an
order, that ‘‘we’ve discussed the fact that should it become—on the Chubb
motion, we’re going to argue the legal issues first and then should the court
make certain rulings, then we would have a factual hearing, and that would
require our witness, who is coming tomorrow.’’
When the motion came up for argument, counsel for the defendant
informed the court that ‘‘there really is a preliminary legal issue as to whether
this court has the authority to grant the relief being sought in . . . the
plaintiff’s motion, and that’s the issue that we’d like to tee up for Your
Honor.’’ Presenting the motion to the court, the plaintiff’s counsel stated:
‘‘Now, the reason that we’re arguing these preliminary matters and, counsel,
correct me if I misstate this, is that we do have evidence to put on, but
counsel’s contention is that the court has no authority to hear this issue,
and that is what we’re going to argue. And then if the court decides that it
wants to hear evidence, we are able to put that on tomorrow.’’
Toward the conclusion of argument, the plaintiff’s counsel argued: ‘‘There
are factual characterizations and mischaracterizations that would benefit
from an evidentiary hearing such as the mischaracterization that [the plain-
tiff] refused to get new insurance, etc. That if the court deems that the court
has . . . statutory authority to hear this issue, does the court in divorce
cases construe contracts? Yes. Does the court in divorce cases construe all
sorts of wills? You have that jurisdiction and that subject matter jurisdiction
and that statutory authority. So, we are seeking an evidentiary hearing so
that we can put on our witnesses and Your Honor can make a decision.
Counsel is saying Your Honor has no authority to even have a hearing.
Thank you.’’
27
Paragraph 3 of the May, 2012 dissolution judgment provided: ‘‘The plain-
tiff shall be the sole owner of the real property at 3 Partridge Hollow,
Greenwich, Connecticut. The defendant shall within thirty (30) days execute
a quitclaim deed provided by the plaintiff to transfer the title. Until such
time as the defendant has transferred title to said property, he shall be
solely responsible for all costs associated with the property, including but
not limited to mortgage, taxes, insurance, all upkeep and repairs in the same
condition as the premise[s] were in, or better, than [on the] day the property
was appraised by [Michael B.] Gold. The defendant shall vacate the premises
with all of his possessions therein on the date of transfer of title. After the
defendant has both vacated the premises with all of his belongings and
transferred title to the plaintiff, then the plaintiff shall be solely responsible
for all of the above referenced costs pertaining to the property and she shall
hold the defendant harmless thereon.’’
28
See footnote 1 of this opinion.
29
‘‘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.’’ Krafick v. Krafick, 234 Conn. 783, 786 n.4, 663 A.2d 365 (1995).