Light v. Grimes ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
LIBBY LIGHT v. DAVID GRIMES
(AC 35905)
Gruendel, Lavine and Bear, Js.
Argued October 20, 2014—officially released March 17, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Schofield, J. [dissolution judgment];
Emons, J. [motion for modification, motion for
attorney’s fees, motion to reargue, motion to open].)
Barbara M. Schellenberg, with whom, on the brief,
was Richard L. Albrecht, the appellant (defendant).
Gary I. Cohen, for the appellee (plaintiff).
Opinion
BEAR, J. The defendant, David Grimes, appeals from
the judgment of the trial court on four postjudgment
motions. The defendant claims that the court improp-
erly (1) denied his 2012 motion for modification of
unallocated alimony and support, (2) granted the
motion of the plaintiff, Libby Light, for attorney’s fees
and awarded her $20,000, (3) denied the relief sought
in his motion for reargument, and (4) denied his motion
to open the judgment with respect to unallocated ali-
mony and support. We affirm the judgment of the court
denying the defendant’s motion for modification of
unallocated alimony and support, the defendant’s
claims on reargument, and the defendant’s claims in
the motion to open. We reverse the judgment of the
court awarding the plaintiff $20,000 in attorney’s fees
and we remand the matter to the court with direction
to vacate that order.
The record reveals the following relevant facts and
procedural history. The plaintiff and the defendant were
married in December, 1991. They have three children
issue of their marriage, born in August, 1996, April,
1999, and August, 2002. At all relevant times, the defen-
dant was a partner at a law firm (employer). After a
limited contested hearing, their marriage was dissolved
on May 9, 2008. In its memorandum of decision and
judgment, the court entered the following unallocated
alimony and support order: ‘‘Until the death of either
party, the plaintiff’s remarriage or cohabitation, or
twelve years from the date of Judgment, whichever
event shall first occur, the defendant shall pay to the
plaintiff unallocated alimony and child support the
amount of $40,000 per month based upon defendant’s
income of $1,420,000 per year. The defendant’s unallo-
cated alimony and child support obligation shall be
reduced by $2,000 per month as each of the two older
children attains the age of majority and a final reduction
of another $3,000 per month upon the youngest child’s
attaining the age of majority. . . . The plaintiff shall
have a safe harbor with respect to her earnings, income
or distributions of $75,000 per calendar year (the ‘Safe
Harbor Amount’). . . . Should the defendant’s obliga-
tion to pay alimony to the plaintiff terminate, then either
party may petition a court of competent jurisdiction for
a determination of the amount of child support that the
defendant is obligated to pay the plaintiff for the support
of the minor children thereafter.’’
Thereafter, the defendant sought clarification of the
unallocated alimony order and on December 15, 2008,
the court ruled that although it would not modify the
term of alimony, it would modify the unallocated ali-
mony and support step down by a reduction of $3000
per month as each of the oldest two children reached
the age of majority, instead of $2000 per month as pre-
viously ordered.1
Additional facts and procedural history are set forth
with respect to each challenged ruling.
I
TRIAL COURT ORDERS
A
The Defendant’s Motion for Modification
of the Unallocated Alimony Order and
the Plaintiff’s Motion for
Attorney’s Fees
On August 14, 2012, the defendant filed his third
motion for modification of unallocated alimony and
support.2 He sought a reduction of the May 9, 2008
order of unallocated alimony and support rendered in
connection with the dissolution judgment.3 He alleged
that the court, ‘‘after trial, had entered a decree of
dissolution of marriage and ordered, inter alia, that
‘the defendant shall pay to the plaintiff unallocated ali-
mony and child support, [in] the amount of $40,000 per
month, based upon defendant’s income of $1,420,000
per year.’ ’’ He also alleged that there had ‘‘been a sub-
stantial downward change in [his] financial circum-
stances . . . in that his annual income will be
substantially reduced.’’4
On February 19, 2013, the plaintiff filed a motion for
attorney’s fees, making reference to the defendant’s
then pending motion for modification. She ‘‘move[d]
under [General Statutes § 46b-62] that the defendant be
required to pay a reasonable sum for [her] fees and
expenses incurred in defending against the defen-
dant’s motion.’’
On April 4, 2013, the court commenced the hearing
on the pending motions. The modification hearing con-
tinued and concluded on May 6, 2013. On that day, the
court orally rendered its findings and orders as follows:
‘‘The court finds that [the defendant] has not proven
that he has experienced a substantial change in circum-
stances given the ground in his motion that his income
amounted to a substantial change in circumstance. . . .
[I]n light of this motion [for modification] that the court
considers wasteful and on the border of being frivolous,
although I’m not sure it goes over the line to frivolous,
but it, certainly, was a wasteful motion, the court is
going to order that he pay [the plaintiff’s] attorney’s
fees in the amount of $20,000.’’
B
The Defendant’s Motion for Reargument
On May 24, 2013, the defendant filed a motion to
reargue. The defendant sought reargument and recon-
sideration of the court’s denial of his motion for modifi-
cation and award of $20,000 to the plaintiff in
attorney’s fees.
Referring to his August 14, 2012 motion for modifica-
tion, he alleged that there had been a substantial change
in his financial circumstances caused by a significant
reduction in his annual income. The defendant alleged
that he had testified at the modification hearing that
his net monthly distributions from his employer had
been reduced from approximately $68,000 in 2008 to
approximately $38,000 in 2012 and 2013, and that his
total compensation from employment in 2012 was sub-
stantially less than the $1,420,000 found by the court
in 2008. He also alleged that the plaintiff did not dispute
in 2012 that the defendant’s total annual income was
less than $1,420,000 and that his monthly distributions
were less than his $40,000 per month obligation to the
plaintiff. He alleged that his March 15, 2013 paystub
was admitted into evidence at that hearing and that it
listed his total cash income in 2012 as $1,179,627, a 17
percent decrease from his income in 2008. He alleged
that at the modification hearing he testified that some
of the reduction in his income was due to having to
pay increased income taxes because of the expansion
of his employer’s business into additional states and
foreign countries. Additional reasons for the reduction
in his income included a 3 percent increase in his federal
tax rate and a doubling of his medical insurance pay-
ments since the trial in 2008. He claimed that reargu-
ment should be granted because he had demonstrated
a substantial reduction in both his monthly and
annual income.
With respect to the award of attorney’s fees, the
defendant alleged that the plaintiff in her motion for
attorney’s fees did not represent that she lacked the
resources to pay them, and that six days after she filed
her motion, the plaintiff paid $26,000 in cash for a new
Lexus hybrid automobile. Additionally, he pointed out
that the plaintiff’s April 2, 2013 financial affidavit
showed assets of approximately $1,300,000, and cash
of approximately $100,000. The defendant argued that
the reason expressed by the court for its award of
attorney’s fees was legally improper and that the evi-
dence demonstrated the plaintiff was financially able
to pay her own attorney’s fees. The defendant also
argued that the plaintiff had sought fees pursuant to
§ 46b-62, and there was no basis on which to award
fees to her pursuant to that statute. See, e.g., Turgeon
v. Turgeon, 190 Conn. 269, 280–82, 460 A.2d 1260 (1983).
The defendant, however, did refer to and acknowledge
the court’s inherent authority to award attorney’s fees in
certain specific circumstances of litigation misconduct.
See Berzins v. Berzins, 306 Conn. 651, 51 A.3d 941
(2012); Maris v. McGrath, 269 Conn. 834, 850 A.2d 133
(2004).5 The defendant claimed that reargument should
be granted because the plaintiff was financially able to
pay her own attorney’s fees. The court granted the
motion to reargue and scheduled a hearing on July
8, 2013.
At the modification hearing, the defendant had intro-
duced and had been cross-examined about a K-1 tax
form from his employer relating to his 2012 income.
That cross-examination focused on the $1,292,389
amount on that tax form described as withdrawals and
distributions that, when subtracted from his 2008
income of $1,420,000, resulted in a $127,611, or 8.99
percent, reduction in income.6 At the modification hear-
ing, the defendant did not object to or correct the plain-
tiff’s focus on and use of the $1,292,389 amount, or the
calculations derived from the use of that amount. In
fact, it was not until the reargument hearing that the
defendant objected to the plaintiff’s focus on and use
of the $1,292,389 amount and claimed that another,
smaller amount—$1,192,389—on the K-1 tax form was
the correct amount to be used for determining the
reduction in his annual income between 2008 and 2012.
Notably, this amount was $12,761.47 greater than the
2012 total cash income of $1,179,627.53 set forth on the
March 15, 2013 paystub. The defendant conceded at the
reargument hearing that he had not raised any claim
based on the $1,192,389 amount at the modification
hearing.7 Although the court granted the defendant’s
motion to reargue, it denied the relief requested.
The defendant appealed from the court’s judgment
denying his motion for modification, granting the plain-
tiff’s motion for attorney’s fees, and denying the relief
requested in his motion for reargument.
C
The Defendant’s Motion to Open
On October 16, 2013, the defendant filed a motion to
open judgment with the trial court pursuant to General
Statutes § 52-212a and Practice Book § 17-4, which was
heard on December 2, 2013. He asserted that there was
‘‘compelling new evidence regarding his income.’’ The
new evidence that the defendant sought to present was
his 2012 income tax returns, which had not been com-
pleted at the time of the previous hearings. He also
sought to present the testimony of James S. Whiting,
the accountant who prepared his tax returns from 2006
through 2012. As an offer of proof, the defendant alleged
that Whiting was prepared to testify that the defendant’s
total income for 2012 was $1,194,437, and that the line
of the K-1 tax form utilized by the plaintiff and the
court in the modification hearing was irrelevant to the
defendant’s income calculation. The plaintiff opposed
the defendant’s motion, claiming that the defendant’s
income tax returns did not constitute new evidence
and that the exhibits attached to the motion should
be stricken.
At the hearing on the motion to open, the defendant
argued that he did not have to rely on newly discovered
evidence, but rather was relying on a mathematical
mistake. The plaintiff asserted that in order to present
new evidence, a party has to show that the evidence
sought to be introduced was not available at the time
of the original hearing, and that could not be the case
where the defendant introduced the K-1 tax form with
the relevant information in the modification hearing.
After hearing the parties, the court denied the motion
to open, concluding as a matter of law that the defen-
dant had ‘‘failed to allege anything at this point that was
not available at the time of the [modification] hearing.’’
The defendant filed an amended appeal from the
court’s judgment denying his motion to open.
II
CLAIMS ON APPEAL
A
The Defendant’s Motion for Modification
of the Unallocated Alimony Order
The defendant first claims that the court improperly
denied his 2012 motion for modification of the unallo-
cated alimony and support order. The defendant argues
that the court improperly denied his motion for modifi-
cation as wasteful and bordering on being frivolous,
especially where he presented credible evidence of a
significant decrease in his gross and net incomes, and
his continual need to borrow money to meet his monthly
unallocated alimony and support obligation. He asserts
that the court did not correctly apply the law and reach
a reasonable conclusion, where the court denied the
motion despite his introduction of credible evidence of
more than a 15 percent decrease in his gross income,
a 20 to 25 percent decrease in his net income, and his
need to borrow money to keep abreast of his unallo-
cated alimony obligation. He also asserts that the court
reached its decision with no indication that it had con-
sidered his evidence regarding his net income. We
disagree.
We first set forth the standard of review and relevant
legal principles that inform our analysis. ‘‘Our review
of a trial court’s granting or denial of a motion for
modification of alimony is governed by the abuse of
discretion standard. . . . To the extent that the trial
court has made findings of fact, our review is limited
to deciding whether such findings were clearly errone-
ous.’’ (Citation omitted; internal quotation marks omit-
ted.) Marshall v. Marshall, 151 Conn. App. 638, 655, 97
A.3d 1 (2014). ‘‘In determining whether a trial court
has abused its broad discretion in domestic relations
matters, we allow every reasonable presumption in
favor of the correctness of its action. . . . Trial courts
have broad discretion in deciding motions for modifica-
tion.’’ (Internal quotation marks omitted.) Pite v. Pite,
135 Conn. App. 819, 824, 43 A.3d 229, cert. denied, 306
Conn. 901, 52 A.3d 728 (2012).
‘‘[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 [or child support], the
applicable provision of the statute is § 46b-86 (a),8 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.’’ (Footnote altered;
internal quotation marks omitted.) Olson v. Moham-
madu, 310 Conn. 665, 671–72, 81 A.3d 215 (2013).
‘‘As to the substantial change of circumstances provi-
sion of § 46b-86 (a), [w]hen presented with a motion
for modification, a court must first determine whether
there has been a substantial change in the financial
circumstances of one or both of the parties. . . . Sec-
ond, if the court finds a substantial change in circum-
stances, it may properly consider the motion and . . .
make an order for modification. . . . A party moving
for a modification of a child support order must clearly
and definitely establish the occurrence of a substantial
change in the circumstances of either party that makes
the continuation of the prior order unfair and improper.
. . . The party seeking modification bears the burden
of showing the existence of a substantial change in
the circumstances.’’ (Internal quotation marks omitted.)
McKeon v. Lennon, 131 Conn. App. 585, 598, 27 A.3d
436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).
‘‘Following [a finding of a substantial change in circum-
stances], the court then answers the question of modifi-
cation [of alimony], taking into account the general
alimony factors found in [General Statutes] § 46b-82.’’
Gervais v. Gervais, 91 Conn. App. 840, 854, 882 A.2d
731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).
‘‘The power of the trial court to modify the existing
order does not, however, include the power to retry
issues already decided . . . or to allow the parties to
use a motion to modify as an appeal. . . . Rather, the
trial court’s discretion includes only the power to adapt
the order to some distinct and definite change in the
circumstances or conditions of the parties.’’ (Internal
quotation marks omitted.) Olson v. Mohammadu,
supra, 310 Conn. 673.
We conclude that the court did not abuse its discre-
tion in denying the defendant’s motion to modify unallo-
cated alimony and support on the basis of the specific
allegations of that motion and on the evidence pre-
sented to it by the parties at the hearing on the motion,
on which it properly could rely.9
B
The Plaintiff’s Motion for Attorney’s Fees
The defendant next claims that the court improperly
granted the plaintiff’s motion for attorney’s fees and
awarded her $20,000. The defendant argues that the
court applied an incorrect standard in awarding attor-
ney’s fees. He argues that ‘‘counsel fees in a postdissolu-
tion action may only be awarded pursuant to statute
on financial grounds, or pursuant to the trial court’s
inherent authority, if there are specific findings that a
party’s claim is not colorable and that the party other-
wise acted in bad faith.’’ The defendant also argues
that, even if the court applied the correct standard,
there was no evidence to support an award of attorney’s
fees. We agree with the defendant.
We begin by setting forth the standard of review and
legal principles relevant to this claim. ‘‘Whether to allow
[attorney’s] fees . . . and if so in what amount, calls
for the exercise of judicial discretion. . . . An abuse
of discretion in granting [attorney’s] fees will be found
only if [an appellate court] determines that the trial
court could not reasonably have concluded as it did.’’
(Internal quotation marks omitted.) Szynkowicz v.
Szynkowicz, 140 Conn. App. 525, 539, 59 A.3d 1194
(2013).
In Berzins v. Berzins, supra, 306 Conn. 661, our
Supreme Court noted that ‘‘[t]he common law rule in
Connecticut, also known as the American Rule, is that
attorney’s fees and ordinary expenses and burdens of
litigation are not allowed to the successful party absent
a contractual or statutory exception. . . . One such
exception is the inherent authority of a trial court to
assess attorney’s fees when the losing party has acted
in bad faith, vexatiously, wantonly or for oppressive
reasons.’’ (Citation omitted; internal quotation marks
omitted.) Id.
Our Supreme Court ‘‘explained the narrow scope of
this exception in Maris v. McGrath, supra, 269 Conn.
848, in which [it] upheld a trial court’s determination
that attorney’s fees should be awarded to the defendant
because the trial court had found both that the case
was ‘wholly without merit’ and that ‘the plaintiff repeat-
edly had testified untruthfully and in bad faith.’ [Our
Supreme Court] reiterated principles that [it] previously
had articulated indicating that a litigant seeking an
award of attorney’s fees for the bad faith conduct of
the opposing party faces a high hurdle.’’ Berzins v.
Berzins, supra, 306 Conn. 662. In Maris, and reiterated
in Berzins, the court quoted its previous decision in
CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375,
393, 685 A.2d 1108 (1996), overruled in part on other
grounds by State v. Salmon, 250 Conn. 147, 154–55, 735
A.2d 333 (1999), stating: ‘‘We agree, furthermore, with
certain principles articulated by the Second Circuit
Court of Appeals in determining whether the bad faith
exception applies. To ensure . . . that fear of an award
of [attorney’s] fees against them will not deter persons
with colorable claims from pursuing those claims, we
have declined to uphold awards under the bad-faith
exception absent both clear evidence that the chal-
lenged actions are entirely without color and [are taken]
for reasons of harassment or delay or for other improper
purposes . . . and a high degree of specificity in the
factual findings of [the] lower courts. . . . Whether a
claim is colorable, for purposes of the bad-faith excep-
tion, is a matter of whether a reasonable attorney could
have concluded that facts supporting the claim might
be established, not whether such facts had been estab-
lished. . . . To determine whether the bad-faith excep-
tion applies, the court must assess whether there has
been substantive bad faith as exhibited by, for example,
a party’s use of oppressive tactics or its wilful violations
of court orders; [t]he appropriate focus for the court
. . . is the conduct of the party in instigating or main-
taining the litigation.’’ (Internal quotation marks omit-
ted.) Berzins v. Berzins, supra, 662. The court held that
‘‘Maris makes clear that in order to impose sanctions
pursuant to its inherent authority, the trial court must
find both that the litigant’s claims were entirely without
color and that the litigant acted in bad faith.’’ (Emphasis
in original.) Id., 663.
In the present case, although the court did find that
the defendant’s motion for modification was wasteful
and bordering on frivolous,10 the court did not find that
the defendant’s claims were entirely without color and
that he acted in bad faith. We, therefore, reverse the
judgment granting the plaintiff’s motion for attorney’s
fees and remand the case with direction to vacate the
award of attorney’s fees to the plaintiff.
C
The Defendant’s Motion for Reargument
The defendant next claims that the court improperly
denied the relief sought in his motion for reargument.
The defendant argues that the court abused its discre-
tion by failing to correct its mistakes after considering
the incorrect financial information.11 We disagree.
‘‘The standard of review for a court’s denial of a
motion to reargue is abuse of discretion. . . . [T]he
purpose of a reargument is . . . to demonstrate to the
court that there is some decision or some principle of
law which would have a controlling effect, and which
has been overlooked, or that there has been a misappre-
hension of facts. . . . It also may be used to address
. . . claims of law that the [movant] claimed were not
addressed by the court. . . . [A] motion to reargue
[however] is not to be used as an opportunity to have
a second bite of the apple . . . .’’ (Internal quotation
marks omitted.) Lynch v. Lynch, 153 Conn. App. 208,
244–45, 100 A.3d 968 (2014), cert. denied, 315 Conn.
923, A.3d (2015).
As noted previously in this opinion, the court had
before it at the modification hearing conflicting evi-
dence of the defendant’s 2012 gross income, including
the K-1 tax form and the March 15, 2013 paystub. Except
for the defendant’s claim in his motion for reargument
that the court should have considered the amount of
$1,192,389 instead of the amount of $1,292,389 also set
forth on the K-1 tax form, which claim could have been
raised by him at the modification hearing, the defendant
did not ask the court to consider any overlooked legal
authority or claim, or to reconsider a misapprehended
fact. He instead asked the court to reevaluate the facts
that had been before it during the modification hearing,
thus seeking an improper second bite of the apple. We,
therefore, conclude that the court did not abuse its
discretion in denying the relief sought in the motion
for reargument.
D
The Defendant’s Motion to Open
The defendant’s final claim is that the court improp-
erly denied his motion to open the judgment with
respect to unallocated alimony and support. The defen-
dant argues that the court improperly found that there
was no new evidence that was not available at the time
of the modification hearing. The defendant argues that
his 2012 federal income tax return and the affidavit of
his accountant constituted new evidence because they
were not available at the time of that hearing. We
disagree.
‘‘The standard of review on a motion to open a judg-
ment under Practice Book § 17-4 is whether the trial
court abused its discretion.’’ Marut v. IndyMac Bank,
FSB, 132 Conn. App. 763, 771, 34 A.3d 439 (2012). ‘‘[O]ne
of the essential conditions for the granting of such a
motion is that the evidence which the party seeks to
offer could not have been known and with reasonable
diligence produced at the [hearing].’’ Stocking v. Ives,
156 Conn. 70, 73, 238 A.2d 421 (1968).
After a thorough review of the record, we conclude
that the court did not abuse its discretion in concluding
that the defendant did not present new evidence that
was not available at the time of the modification hear-
ing, and in denying the motion to open. Each document
provided by the defendant at the hearing on the motion
to open in relevant part contained, referred to, or was
based on information, including information from the
K-1 tax form, which was available at the modification
hearing. Moreover, there was no proof offered by the
defendant that Whiting was not available to testify on
the date of the modification hearing. See id., 73 (‘‘if a
party upon the filing of a decision unfavorable to him
upon an issue which has been litigated at the [hearing]
has a right to have the judgment reopened to enable
him to offer further testimony upon that issue, which
might equally well have been offered at the [hearing],
litigation would be prolonged beyond the requirements
of a sound public policy’’ [internal quotation marks
omitted]).
The judgment is reversed only as to the award of
attorney’s fees to the plaintiff, and the case is remanded
with direction to vacate that order. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
The parties also had sought clarification of certain property orders, and
of the proper date for valuation of the parties’ property because of the
postjudgment motions. The defendant argued that the date was not that of
the dissolution, but it was instead after the disposition of the postjudgment
motions. The court disagreed, and the defendant appealed to this court.
This court affirmed the judgment of the court, concluding: ‘‘The case at
hand involves the valuation of the parties’ marital assets. The court derives
its authority to divide marital assets solely from the statute, which provides
that a court may do so at the time of the entering of a decree dissolving
the marriage. Thus, it stands to reason that the date on which the values
of those assets must be determined is the date of the decree, for anything
that occurs subsequent to that date is simply not relevant to the value of
the marital assets. Accordingly, the court properly determined that the date
of valuation of the parties’ assets is the date of dissolution, May 9, 2008.’’
(Emphasis in original.) Light v. Grimes, 136 Conn. App. 161, 173–74, 43
A.3d 808, cert. denied, 305 Conn. 924, 47 A.3d 885 (2012).
2
On February 6, 2009, the defendant filed a postjudgment motion for
modification of unallocated alimony and support. He alleged that at the
time of the dissolution trial his gross monthly distributions from employment
were $68,875. He further alleged that there had been a substantial change
in his financial circumstances, including but not limited to a monthly cap
of $40,000 on his distributions, commencing on February 1, 2009, for the
period of February 1 through August 31, 2009, and for those months in
future years, and that his employer was going to require him to contribute
additional capital to it in order to maintain his status as an equity partner.
He also alleged that his employer proposed to make a catch-up distribution
to him on September 15 of each year, if it had sufficient cash to do so. He
explained that he sought only to change the amount of the monthly payments
due in February through August, but not the total annual amount of the
payments. On July 31, 2009, the court granted the defendant’s motion for
modification retroactive to February 19, 2009, ordering a payment of $28,000
for August, 2009, $40,000 per month thereafter, with a ‘‘catch up’’ payment
in January, 2010.
On August 18, 2009, the defendant filed a second motion for modification,
postjudgment, of his monthly unallocated alimony and support payments.
The defendant, in relevant part, alleged that his gross monthly income
between February 1, 2009 and August 31, 2009, had been reduced from
$69,750 to $40,000 and that the same reduction would occur between January
1, 2010, and August 31, 2010. The defendant further alleged that when
the original monthly draw of $69,750 was restored, it would be subject to
mandatory withholding of approximately $28,014 per month, netting the
defendant approximately $41,736 per month, from which he was required
to pay the plaintiff $40,000 per month as well as support himself. He alleged
that his changed monthly distributions constituted a substantial change in
circumstances and that the July 31, 2009 order of the court ought to be
modified effective August 1, 2009. On February 4, 2010, the court denied
that motion for modification. The court subsequently granted the defendant’s
motion for reargument of its denial. On June 22, 2010, the court heard
reargument, including testimony, on that motion. At that hearing the defen-
dant reiterated his claim that he was not seeking a reduction in the total
annual alimony payment. He was, however, requesting a modification of
the monthly amount to be paid because of what he described as a mandatory
withholding of approximately $28,014.00 from his monthly distribution of
$69,750.00, which left him with a $41,736.00 net distribution per month.
He alleged that the decrease in his regular monthly income constituted a
substantial change in circumstances sufficient to warrant a reduction in the
monthly order, but not the total annual order. He stated that at some point
the mandatory withholding would be repaid to him resulting in no decrease
to his total annual income. On August 19, 2010, the court again denied the
motion and set forth the following: ‘‘The court acknowledges that this is
an unusual request. The court has no evidence of when or how the shortfall
to the plaintiff will be paid. The court has reviewed the current financial
affidavits of the plaintiff and defendant. To order a reduction in the monthly
payment would severely penalize the plaintiff and parties’ children. This is
a budgeting problem which is not a function of the court. The current order
remains in effect.’’
3
Neither party has claimed in this appeal that the date from which the
requested modification should be measured is other than the date of the
final dissolution, May 9, 2008.
4
We note that in light of the defendant’s reference to the court’s finding
that as of May 9, 2008, his annual gross income was $1,420,000, it is not
surprising that, at the modification hearing, the parties and the court focused
on the alleged substantial reduction in that annual income amount.
5
We note that at the reargument hearing, the court stated: ‘‘[T]he court
found that the entire [modification] hearing and the entire premise based
on what the court heard was wasteful, wasteful of everybody’s time and
for that reason the court awarded attorney’s fees. And I have yet to under-
stand from your argument what is wrong with that other than the fact that
your client doesn’t like it.’’
6
For clarity during the modification hearing, the parties seem to have
rounded the numbers, using $1,420,000, $1,293,000 and calculated a differ-
ence of $127,000, and a reduction of 8.94 percent.
7
We note the following colloquy between the court and the defendant’s
attorney regarding the use of the $1,292,389 amount:
‘‘The Court: Counsel, nobody brought that up at the trial level; did they?
‘‘[The defendant’s attorney]: I didn’t bring that up to Your Honor. . . .
‘‘[The defendant’s attorney]: My client points out that the cash number
on the K-1 was [$1,192,389] and that is the correct number that should have
been used by [the plaintiff’s attorney] . . . . Your Honor did grant reargu-
ment, I think that opens the door to that.
‘‘The Court: I don’t.
‘‘[The defendant’s attorney]: I understand.
‘‘The Court: The court has granted your motion to reargue and denies
your request for relief. Thank you.’’
8
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support . . . may, at any time
thereafter, be continued, set aside, altered or modified by the court upon
a showing of a substantial change in the circumstances of either party . . . .
If a court, after hearing, finds that a substantial change in circumstances
of either party has occurred, the court shall determine what modification
of alimony, if any, is appropriate, considering the criteria set forth in section
46b-82.’’
9
Additionally, we note that during the hearing on the motion to open, the
court stated that even if the reduction in the defendant’s income had been
15 or 16 percent, as claimed by the defendant, it would not have modified
the unallocated alimony and support order. See Talbot v. Talbot, 148 Conn.
App. 279, 287–88, 85 A.3d 40 (evidence demonstrated that court acted within
its discretion when it determined that plaintiff’s 17 percent reduction in
income and his illness did not necessitate finding of substantial change in
circumstances), cert. denied, 311 Conn. 954, 97 A.3d 984 (2014). Since this
issue did not arise during the modification hearing, we are not required to
determine if the court’s additional finding in support of its ruling constituted
an abuse of discretion.
10
From our review of the motion to modify and the evidence and argu-
ments presented by both parties at the hearing on that motion, we are not
persuaded that these findings are clearly erroneous.
11
To the extent that the motion for reargument addressed the issue of
the attorney’s fees awarded to the plaintiff, we addressed that claim in part
II B of this opinion.