Ingles v. Ingles ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
JUAN B. INGLES v. MARIBEL C. INGLES
(AC 44151)
Suarez, Clark and Sheldon, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving her marriage to the plaintiff and making certain financial
orders and denying her motion for contempt. Before trial, the parties
had entered into a stipulation in which the plaintiff agreed to make
mortgage payments on the marital home. The trial court denied the
defendant’s subsequent motion for contempt, in which she alleged that
the plaintiff failed to pay past due mortgage payments, on the ground
that his failure to pay the mortgage was not wilful. Each party was
employed at the time of trial and had a pension associated with that
employment. The parties were unable to agree on a professional evalua-
tor to value the pensions and, at trial, neither party presented testimony
from an actuary as to the value of the pensions. The court awarded the
defendant the marital home, ordered that the plaintiff transfer 75 percent
of his 457 (b) retirement plan to the defendant, and ordered the plaintiff
to pay the defendant periodic alimony in the amount of $250 per week
for two years, to support the defendant while she refinanced the mort-
gage on the marital home. The court ordered that each party would
retain sole ownership of his or her pension. Held:
1. The trial court correctly concluded that the plaintiff was not in contempt
for failing to comply with a pendente lite order: the court did not find
that the plaintiff was in wilful noncompliance of its order that he make
certain mortgage payments, which the defendant, as the party seeking
the order of contempt, had the burden to prove by clear and convincing
evidence; in the present case, even though the court found that the
plaintiff was late in making certain mortgage payments, it did not find
that the plaintiff failed to make his best effort to make timely payments
in violation of its order or that any such violation was wilful, and,
because the court determined that the defendant failed to establish a
prima facie case of contempt, the burden of production did not shift to
the plaintiff to provide evidence in support of a defense of inability to
comply with the court’s order.
2. The defendant could not prevail on her claim that the trial court’s periodic
alimony award was an abuse of its discretion: the court’s award of time
limited alimony was for a permitted purpose in that it provided interim
support to the defendant until she was able to either refinance the
mortgage or to list the marital home for sale, and the two year duration
of the award was not arbitrary because it was connected to the court’s
order to refinance the mortgage in that time frame and was consistent
with the defendant’s proposed orders in which she specifically requested
a two year time period to pursue refinancing; moreover, the court did
not fail to consider the factors set forth in the applicable statute (§ 46b-
82), including the parties’ needs, sources of income and employment,
as the court explicitly stated that it had considered the statutory criteria
for its award, and the record reflected that the court considered the
plaintiff’s ability to earn income from overtime and extra duty pay
because such income was reflected on his financial affidavit, which
the court specifically referenced in its memorandum of decision in its
assessment of the plaintiff’s income.
3. Contrary to the defendant’s claim, the trial court did not improperly fail
to value the parties’ pensions and equalize their distribution: the court
did not remove the parties’ pensions from the scales in determining an
equitable division of the parties’ property but, instead, stated that both
parties were entitled to a pension on retirement and that it took that
into consideration in fashioning its financial orders, and the defendant
could not assert that the court improperly failed to value the parties’
pensions given the scant evidence presented by the parties; moreover,
the court was not required to ‘‘equalize’’ the pensions pursuant to the
present division method and to distribute 50 percent of each pension
to the parties, as the court is not required to distribute the pensions
equally, or at all, for its order to be equitable, and this court could not
conclude that the court’s order declining to award the defendant a
portion of the plaintiff’s pension was inequitable in light of the totality
of the court’s financial awards.
4. The trial court did not abuse its discretion in declining to award the
defendant attorney’s fees: the defendant did not demonstrate how the
court’s failure to award her attorney’s fees undermined the court’s other
financial orders because, when the court’s orders are viewed as a whole,
the court reasonably could have concluded that the defendant had suffi-
cient funds to pay her attorney’s fees without any risk of undermining
the efficacy of the court’s other financial orders, because, in addition
to being awarded periodic alimony and a portion of the plaintiff’s 457
(b) plan, the defendant continued to receive income from her employ-
ment and her financial affidavit indicated that she had money in checking
and savings accounts.
Argued March 2—officially released December 6, 2022
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven, where the defendant filed a cross
complaint; thereafter, the defendant filed a motion for
contempt; subsequently, the matter was tried to the
court, Hon. James G. Kenefick, Jr., judge trial referee;
judgment dissolving the marriage and granting certain
other relief, and denying the defendant’s motion for
contempt, from which the defendant appealed to this
court. Affirmed.
Randi L. Calabrese, with whom, on the brief, was
Mohan Sreenivasan, for the appellant (defendant).
Joseph A. DiSilvestro, for the appellee (plaintiff).
Opinion
SUAREZ, J. The defendant, Maribel C. Ingles, appeals
from the judgment of the trial court dissolving her mar-
riage to the plaintiff, Juan B. Ingles, and denying her
motion for contempt. On appeal, the defendant claims
that the court (1) misapplied the law when it found that
the plaintiff was not in contempt for allegedly failing
to comply with a pendente lite order, (2) abused its
discretion in awarding her alimony in the amount of
$250 per week for a period of two years, (3) improperly
failed to value the parties’ pensions and equalize their
distribution, and (4) abused its discretion in declining
to award her attorney’s fees. We affirm the judgment
of the trial court.
The following facts, which were either found by the
court or are otherwise undisputed, and procedural his-
tory are relevant to our resolution of this appeal. The
plaintiff and the defendant were married on August 7,
1999, and have two children together.1 In January, 2019,
the plaintiff commenced a dissolution action. At the
time of the dissolution proceeding, the plaintiff was
fifty years old and working as a detective with the New
Haven Police Department, where he had been employed
since 2002. The plaintiff had been involved in a serious
accident while working and had a pending civil action
and a workers’ compensation claim arising from that
accident. Although he experienced some medical issues
as a result of the accident, he had returned to working
full-time by the time of the dissolution proceeding. The
defendant was fifty-three years old and working as a
social worker case aide with the Department of Chil-
dren and Families, where she had been employed since
1998. The defendant was in good health, although she
was ‘‘dealing with several medical issues, at least one
of which involve[d] workers’ compensation.’’ She was
working toward obtaining a bachelor’s degree in psy-
chology from Albertus Magnus College, which she
hoped to complete in the spring of 2021.
On March 18, 2020, after a trial that lasted for three
days, the court, Hon. James G. Kenefick, Jr., judge trial
referee, issued a memorandum of decision dissolving
the parties’ marriage and issuing certain financial orders
related to alimony and the division of the parties’ marital
property. The court concluded that the parties’ marriage
had broken down irretrievably and found the plaintiff
to be more at fault than the defendant for that break-
down, as he ‘‘had several affairs of a somewhat brief
nature a number of years ago and, although [the parties]
had reconciled at times, [the defendant had] lost trust
in him.’’
The court awarded the defendant the marital home,
located in East Haven, which had been purchased by
the parties in 2007, and, at the time of trial, had a value
of $305,000, with $71,000 in equity. The court ordered
the plaintiff to quitclaim his interest in the property to
the defendant and ordered the defendant to refinance
the mortgage within two years. The court ordered that,
if the defendant could not refinance the mortgage within
two years, the property was to be sold and the defendant
was to retain any net proceeds or be responsible for
any deficiency. The court further ordered, among other
things, that the plaintiff transfer 75 percent of his 457
(b) retirement plan to the defendant, that both parties
retain their respective pensions, that each party retain
his or her own personal injury claims, lawsuits, and
workers’ compensation benefits, and that each party
be responsible for the outstanding balances owed to his
or her own attorneys in connection with the dissolution
proceedings. The court ordered the plaintiff to pay the
defendant periodic alimony in the amount of $250 per
week for a period of two years, in order to provide
support to the defendant while she refinanced the mort-
gage on the marital home.
In its memorandum of decision dissolving the parties’
marriage, the court also denied motions for contempt
that the defendant had filed on December 11, 2019, and
February 6, 2020, related to the plaintiff’s continued
obligation to make mortgage payments on the marital
home while the dissolution action was pending.
On April 7, 2020, the defendant filed a motion for
reconsideration, reargument, and clarification of the
court’s decision regarding, in relevant part, the duration
and amount of the alimony award, the division of the
parties’ retirement assets, and attorney’s fees. The court
summarily denied the defendant’s motion. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The defendant first claims that the court improperly
denied her December 11, 2019 motion for contempt.
Specifically, the defendant argues that the court
improperly placed the burden on her to demonstrate
that the plaintiff’s alleged noncompliance with the
court’s order was wilful and, in doing so, failed to shift
the burden to the plaintiff to demonstrate, as a defense,
his inability to comply with the order. We disagree.
The following additional facts are relevant to our
resolution of the defendant’s claim. During the parties’
marriage, the plaintiff paid the mortgage on their marital
home and the defendant paid for most of their remaining
household expenses, such as for utilities and food. Dur-
ing the pendency of the dissolution action, the parties
entered into a pendente lite stipulation, in which the
plaintiff agreed, among other things, to ‘‘continue mak-
ing all mortgage payments, ongoing, as they come due.’’
The stipulation also provided that the plaintiff was
responsible for any fees associated with late payments,
as well as past due payments not paid to date.2 The
stipulation was approved by the court and entered as
an order. On July 25, 2019, the defendant filed a motion
for contempt, alleging that the plaintiff had wilfully
violated the court’s order by failing to pay the past
due mortgage payments and associated late fees, which
amounted to $7724.44.
On October 9, 2019, after a hearing, the court denied
the defendant’s July 25, 2019 motion for contempt, find-
ing that ‘‘the mortgage for the marital home is currently
in arrears for the month of September, 2019, and is in
the payment grace period for the month of October,
2019, as of the date of this order entering. However,
the court does not find the [plaintiff’s] failure to pay
the mortgage during this period to be wilful.’’ In addi-
tion, the court ordered that ‘‘[t]he [plaintiff] shall pay
the September and October, 2019 mortgage payments
no later than [October 16, 2019], and shall continue to
pay the mortgage each month until further order of the
court. The [plaintiff] shall make his best effort to make
all future mortgage payments on time.’’
The defendant subsequently filed a motion for con-
tempt on December 11, 2019, regarding the plaintiff’s
alleged wilful noncompliance with the terms of the
court’s October 9, 2019 order. The defendant claimed
that the plaintiff had failed to make the November and
December, 2019 mortgage payments in a timely manner
and, therefore, a balance of $5672.39 remained past due.
The December 11, 2019 motion for contempt was
heard together with the underlying dissolution action.
With respect to the motion for contempt, the defendant
offered as evidence letters from the parties’ mortgage
subservicing company, dated November 4, 2019, and
December 4, 2019, advising the parties that their mort-
gage was two months past due. The plaintiff testified
that he made a payment on December 10, 2019, which
was reflected in a subsequent statement from the par-
ties’ mortgage servicing company. The plaintiff
acknowledged that he previously made late mortgage
payments but explained that he was currently up to
date on those payments, apart from a ‘‘past due amount’’
of approximately $749 in certain fees and charges. The
plaintiff testified concerning his expenses, including his
credit card bills and the $1100 in rent that he paid
monthly for his current residence,3 in addition to the
approximately $2400 in monthly mortgage payments on
the marital home. The plaintiff testified that he ‘‘strug-
gle[s]’’ to pay his bills each month, asserting that ‘‘I
don’t have enough [money] to manage to pay them
all on time.’’ The plaintiff further testified that ‘‘[t]he
mortgage was getting paid as soon as I possibly could
and then the rent,’’ as he asked his landlord to allow
him to be behind on the rent payments in order to
prioritize the mortgage payments.
In its memorandum of decision dissolving the parties’
marriage, the court denied the defendant’s December
11, 2019 motion for contempt.4 The court reasoned:
‘‘Although the [plaintiff] has been late in making [mort-
gage] payments, the [defendant] has not met her burden
of proof that these late payments were wilful.’’ The
court ordered, in its property division of the marital
home, that ‘‘the [plaintiff] shall be responsible for the
March, 2020 mortgage payment and any outstanding
fees and charges which shall be promptly paid.’’
We begin with the following legal principles that
guide our analysis of the defendant’s claim. ‘‘[C]ivil con-
tempt is committed when a person violates an order of
court which requires that person in specific and definite
language to do or refrain from doing an act or series
of acts. . . . In part because the contempt remedy is
particularly harsh . . . such punishment should not
rest upon implication or conjecture, [and] the language
[of the court order] declaring . . . rights should be
clear, or imposing burdens [should be] specific and
unequivocal, so that the parties may not be misled
thereby. . . .
‘‘To constitute contempt, it is not enough that a party
has merely violated a court order; the violation must
be wilful. . . . The inability of a party to obey an order
of the court, without fault on his part, is a good defense
to the charge of contempt. . . .
‘‘It is the burden of the party seeking an order of
contempt to prove, by clear and convincing evidence,
both a clear and unambiguous directive to the alleged
contemnor and the alleged contemnor’s wilful noncom-
pliance with that directive. . . . If the moving party
establishes this twofold prima facie case, the burden
of production shifts to the alleged contemnor to provide
evidence in support of the defense of an inability to
comply with the court order.’’ (Citations omitted; inter-
nal quotation marks omitted.) Puff v. Puff, 334 Conn.
341, 364–65, 222 A.3d 493 (2020); see also Eldridge v.
Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998) (‘‘The
inability of a party to obey an order of the court, without
fault on his part, is a good defense to the charge of
contempt. . . . The contemnor must establish that he
cannot comply, or was unable to do so.’’ (Citation omit-
ted; internal quotation marks omitted.)). ‘‘[E]ven in the
absence of a finding of contempt, a trial court has broad
discretion to make whole any party who has suffered
as a result of another party’s failure to comply with a
court order.’’ (Internal quotation marks omitted.)
O’Brien v. O’Brien, 326 Conn. 81, 99, 161 A.3d 1236(2017).
Whether the trial court applied the correct legal stan-
dard to the defendant’s motion for contempt is a ques-
tion of law subject to plenary review. See, e.g., Dowling
v. Heirs of Bond, 345 Conn. 119, 143 n.20, 282 A.3d 1201(2022). ‘‘The question of whether the underlying order
is clear and unambiguous is a legal inquiry subject to
de novo review. . . . If we answer that question affirm-
atively, we then review the trial court’s determination
that the violation was wilful under the abuse of discre-
tion standard.’’ (Citation omitted.) Puff v. Puff, supra,
334 Conn. 365–66.
In the present case, the court did not find that the
plaintiff was in ‘‘wilful noncompliance’’ of the October
9, 2019 order, which the defendant, as the party seeking
the order of contempt, had the burden to prove by clear
and convincing evidence. See id., 365; see also Birkhold
v. Birkhold, 343 Conn. 786, 811, 276 A.3d 414 (2022)
(‘‘[i]t is the burden of the party seeking an order of
contempt to prove, by clear and convincing evidence,
both a clear and unambiguous directive to the alleged
contemnor and the alleged contemnor’s wilful noncom-
pliance with that directive’’ (emphasis added; internal
quotation marks omitted)). In other words, even though
the court found that the plaintiff had been late in making
certain mortgage payments, it did not find that the plain-
tiff had failed to make his ‘‘best effort’’ to make those
mortgage payments on time, in violation of the court’s
order, or that any such violation was ‘‘wilful.’’ Thus, the
court determined that the defendant failed to establish
a prima facie case of contempt5 and, therefore, the
burden of production did not shift to the plaintiff to
provide evidence in support of a defense of inability to
comply with the court’s order.
Accordingly, we conclude that the court correctly
placed the burden on the defendant to demonstrate the
plaintiff’s wilful noncompliance with the court’s order,
and, on the basis of the evidence presented, the court
did not abuse its discretion by declining to hold the
plaintiff in contempt.
II
The defendant next claims that the court abused its
discretion in awarding her alimony in the amount of
$250 per week for a period of two years. Specifically,
she argues that (1) ‘‘there is no support or logic to the
court’s limitation of alimony’’ to a duration of two years,
and (2) in calculating the alimony award, the court
failed to consider certain factors set forth in General
Statutes § 46b-82, including the parties’ needs, sources
of income, and employability. We disagree.
The following additional facts are necessary to our
consideration of this claim. During the dissolution pro-
ceedings, the parties’ submitted several financial affida-
vits stating, among other things, their weekly incomes
and expenses. The most recent financial affidavits
before the court at the time of its decision were filed
by the plaintiff on December 20, 2019, and by the defen-
dant on February 6, 2020.
The plaintiff’s December 20, 2019 financial affidavit
indicated that his gross weekly income was $1995, with
the inclusion of certain overtime and extra duty pay, and
that his net weekly income was $1305. The defendant’s
February 6, 2020 financial affidavit indicated that her
gross weekly income was $1167, and that her net weekly
income was $825.
In her proposed orders to the court, the defendant
requested alimony in the amount of $650 per week for
the remainder of her lifetime or, in the alternative, $450
per week plus 50 percent ‘‘of all monies derived from
[the plaintiff’s] additional income, including, but not
limited to, overtime and extra duty performed at his
current job.’’ She also requested that she retain the
marital home, including 100 percent of the parties’
equity in the home, and that ‘‘[t]he plaintiff shall remain
on the mortgage for two years, at which time the house
[will] be sold should the defendant be unable to refi-
nance.’’ The plaintiff, in his proposed orders, requested
that ‘‘[n]either party shall pay nor receive periodic ali-
mony’’ and, instead, the defendant could retain the
plaintiff’s one-half share of equity in the marital home,
valued at $35,500, as a ‘‘lump sum alimony buyout
. . . .’’ The plaintiff further requested that the defen-
dant ‘‘immediately’’ refinance the mortgage and that, if
she was unable to refinance within 120 days, the marital
home would be listed for sale.
At trial, the defendant confirmed her desire to keep
the marital home and to pursue refinancing of the mort-
gage. She testified that she previously had tried to refi-
nance the mortgage but could not, because her credit
was ‘‘really, really bad’’ due to the home going into
foreclosure in 2011 and because her income was insuffi-
cient to sustain the home.
When the court asked the defendant whether she
believed she could afford the home given her current
income, the defendant responded, ‘‘I don’t know.’’ She
subsequently testified that she put approximately $800
per month into Christmas club and vacation club
accounts through her employment, and that such funds
could be available to pay household bills, even though
she was not currently using the funds for that purpose.6
In its memorandum of decision dissolving the parties’
marriage, the court stated that it ‘‘carefully considered
the testimony of the parties and witnesses, documents
entered into evidence, the financial affidavits of the
parties, their proposed orders, the court file, and the
statutory criteria and case law for . . . the award of
alimony . . . . ’’ The court indicated that the parties’
‘‘gross and net incomes are as set forth on their financial
affidavits’’ and specifically referenced the plaintiff’s
December 20, 2019 financial affidavit and the defen-
dant’s February 6, 2020 financial affidavit.
The court ordered the plaintiff to pay the defendant
alimony as follows: ‘‘The [plaintiff] shall pay to the
[defendant] periodic alimony in the amount of [$250]
per week . . . . Alimony shall terminate upon the
death of either party, the remarriage or civil union of
the [defendant] or two . . . years from the date of this
order, whichever event first occurs, and shall be modifi-
able including termination in accordance with the provi-
sions of [General Statutes] § 46b-86 . . . . The term of
alimony shall be nonmodifiable except it may end
sooner as stated above. . . . The purpose of the ali-
mony is to give the [defendant] time to refinance the
family home in order to remove the [plaintiff] from the
current note and mortgage.’’
The following legal principles guide our analysis of
the defendant’s claim. ‘‘We review financial awards in
dissolution actions under an abuse of discretion stan-
dard. . . . In order to conclude that the trial court
abused its discretion, we must find that the court either
incorrectly applied the law or could not reasonably
conclude as it did. . . . 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.’’ (Citation omit-
ted; internal quotation marks omitted.) Horey v. Horey,
172 Conn. App. 735, 740, 161 A.3d 579 (2017).
‘‘The generally accepted purpose of . . . alimony is
to enable a spouse who is disadvantaged through
divorce to enjoy a standard of living commensurate
with the standard of living during marriage. . . . In
addition to the marital standard of living, the trial court
must also consider the factors in . . . § 46b-82 when
awarding alimony. . . .
‘‘[Section] 46b-82 (a) provides in relevant part that
[i]n determining whether alimony shall be awarded, and
the duration and amount of the award, the court shall
consider the evidence presented by each party and shall
consider the length of the marriage, the causes for the
. . . dissolution of the marriage . . . the age, health,
station, occupation, amount and sources of income,
earning capacity, vocational skills, education, employ-
ability, estate and needs of each of the parties and
the [division of property made] pursuant to [General
Statutes §] 46b-81 . . . . The court is to consider these
factors in making an award of alimony, but it need not
give each factor equal weight. . . . We note also that
[t]he trial court may place varying degrees of impor-
tance on each criterion according to the factual circum-
stances of each case. . . . There is no additional
requirement that the court specifically state how it
weighed the statutory criteria or explain in detail the
importance assigned to each statutory factor.’’ (Internal
quotation marks omitted.) Reinke v. Sing, 186 Conn.
App. 665, 689–90, 201 A.3d 404 (2018).
‘‘Time limited alimony is often awarded. . . . The
trial court does not have to make a detailed finding
justifying its award of time limited alimony. . . .
Although a specific finding for an award of time limited
alimony is not required, the record must indicate the
basis for the trial court’s award. . . . There must be
sufficient evidence to support the trial court’s finding
that the spouse should receive time limited alimony for
the particular duration established. If the time period
for the periodic alimony is logically inconsistent with
the facts found or the evidence, it cannot stand. . . .
In addition to being awarded to provide an incentive
for the spouse receiving support to use diligence in
procuring training or skills necessary to attain self-suffi-
ciency, time limited alimony is also appropriately
awarded to provide interim support until a future event
occurs that makes such support less necessary or
unnecessary.’’ (Internal quotation marks omitted.)
O’Neill v. O’Neill, 209 Conn. App. 165, 177, 268 A.3d
79 (2021).
On appeal, the defendant first argues that the court’s
‘‘expressly stated purpose in awarding alimony . . . to
give [her] time to refinance the family home in order
to remove the [plaintiff] from the current note and mort-
gage . . . is improper’’ and, ‘‘even if it was proper, the
time period of two years is arbitrary and has no eviden-
tiary support.’’ (Internal quotation marks omitted.)
The court’s award of time limited alimony, however,
is for a permitted purpose in that it ‘‘provide[s] interim
support until a future event occurs that makes such
support less necessary or unnecessary.’’ (Internal quo-
tation marks omitted.) O’Neill v. O’Neill, supra, 209
Conn. App. 177. In the present case, that ‘‘future event’’
is either that ‘‘[t]he [defendant] shall refinance said
mortgage within two years to remove [the plaintiff’s]
name’’ or, ‘‘[i]n the event the property has not been
refinanced within two years, it shall be listed for sale
and aggressively marketed for sale immediately at the
end of the two years.’’ Moreover, the two year duration
of that time limited alimony is not arbitrary, as it also
is connected to the court’s order to refinance the mort-
gage. Additionally, the court’s award is consistent with
the defendant’s proposed orders, in that the defendant
specifically requested a two year time period to pursue
refinancing. Accordingly, the court did not abuse its
discretion in structuring the alimony award as it did.
The defendant next argues that ‘‘the court failed to
consider all of the statutory factors required by . . .
§ 46b-82, including the parties’ needs, sources of
income, and employability.’’ She contends that the court
‘‘relied solely on the parties’ financial affidavits to deter-
mine the parties’ relative incomes . . . despite a
wealth of evidence demonstrating that the plaintiff’s
earning capacity and actual income were much higher
than that reflected on his final financial affidavit’’ as
a result of his ability to earn additional income from
overtime and extra duty pay.7 She further argues that
the court failed to consider that she ‘‘has a limited
earning capacity, insofar as she cannot retire for quite
some time, and [cannot] supplement her base salary
with overtime, extra duty, or additional employment,’’
whereas the plaintiff can.
The court, however, explicitly stated that it had con-
sidered the statutory criteria for its award of alimony.
The record reflects that the court also had considered
the plaintiff’s ability to earn income from overtime and
extra duty pay, because such income was reflected on
the plaintiff’s December 20, 2019 financial affidavit,
which the court specifically referenced in its memoran-
dum of decision to assess the plaintiff’s income, and
incorporated into the plaintiff’s total gross and net
weekly incomes listed on that form.8 Although the
defendant emphasizes that the plaintiff’s income from
overtime and extra duty pay varied from the amounts
listed on his previously filed financial affidavits, the
plaintiff explicitly noted on those forms that his over-
time was ‘‘not guaranteed,’’ and explained at trial that
the availability of overtime and extra duty work fluctu-
ated.
The defendant’s assertion that the court should have
based its alimony award on the parties’ respective earn-
ing capacities, rather than their actual incomes, merits
little consideration. The fact that a court may consider
a party’s earning capacity does not mean that it is
required to do so. It is well settled that ‘‘[w]hether to
base its financial orders on the parties’ actual net
income or their earning capacities is left to the sound
discretion of the trial court.’’ Buxenbaum v. Jones, 189
Conn. App. 790, 801, 209 A.3d 664 (2019). Accordingly,
we conclude that the court did not abuse its discretion
in awarding alimony to the defendant in the amount of
$250 per week for a period of two years.
III
The defendant next claims that the trial court improp-
erly failed to value the parties’ pensions and ‘‘equalize’’
their distribution. We disagree.
The following additional facts are necessary to our
consideration of this claim. As mentioned previously
in this opinion, both parties have retirement assets. The
defendant has a pension with the state of Connecticut,9
and the plaintiff has a pension with the city of New
Haven in addition to a 457 (b) retirement plan. The
plaintiff valued his 457 (b) retirement plan at $40,095.
During the pendency of the dissolution action, the
parties agreed ‘‘to equally pay for the valuations of both
pensions’’ and that the ‘‘evaluator [would] be agreed
upon through counsel . . . .’’ The parties, however,
were unable to agree on a professional evaluator. At
trial, neither party presented testimony from an actuary
with respect to the value of their pensions. Instead, the
parties continually marked the value of their respective
pensions as ‘‘unknown’’ on their financial affidavits.
Regarding his pension, the plaintiff testified that he
had been employed by the New Haven Police Depart-
ment for approximately eighteen years, since October,
2002, and, before that, he had worked as a custodian
for the city of New Haven for approximately six years
and that he had been in the military. The plaintiff
explained that his pension from the custodian position
was ‘‘rolled over’’ into his pension from the police
department. The plaintiff further explained that he was
eligible to retire from the police department on October
17, 2022, after twenty years of service. He offered as
an exhibit a pension benefit calculation from the city
of New Haven. On the basis of a retirement date of
October 17, 2022, the pension benefit calculation indi-
cated that the plaintiff would receive annual pension
benefits in the amount of $79,328.42, with a monthly
payment of $6610.70.
The defendant presented testimony from Jessica Cris-
cuolo, the payroll supervisor for the city of New Haven,
who produced a different pension benefit calculation
as to the plaintiff’s pension. Criscuolo testified that she
believed the plaintiff was eligible to retire that month,
because he had ‘‘bought back’’ 6.48 years of service,
either from his custodian position or his time in the
military, and she was ‘‘assuming that [the plaintiff] will
buy back two more [years] . . . with his sick time to
make him eligible.’’ Criscuolo’s pension benefit calcula-
tion indicated that, on the basis of a retirement date of
December 17, 2019, the plaintiff would receive annual
pension benefits in the amount of $70,372.84, with a
monthly payment of $5864.40.
The only exhibit presented at trial regarding the
defendant’s pension, which had been offered by the
plaintiff, was a letter from a retirement counselor at
the State Employees Retirement Commission, dated
October 31, 2019. The letter, addressed to the defendant,
stated: ‘‘If you left state employment today and elected
to commence benefits [under the early retirement provi-
sions] effective July 1, 2021 the first of the month follow-
ing your fifty-fifth birthday, with [twenty-one] years and
[four] months of credited service and an average salary
of [$73,600] for your three highest paid years of state
service, your yearly basic allowance would be approxi-
mately [$12,859] payable at [$1071] monthly.’’ The letter
also stated that, if the defendant retired under normal
retirement provisions, and her average salary remained
the same, then her ‘‘yearly basic allowance would be
approximately [$21,981] payable at [$1831] monthly.’’
The letter further explained: ‘‘Currently, your account
has $23,004.52 in employee contributions and
$14,850.57 in awarded interest posted to it. . . . Since
the [s]tate funds [the State Employees Retirement Sys-
tem] on an actuarial basis there is no state contribution
individually assigned to a member’s account. Addition-
ally since this office does not have actuaries on staff
we are unable to provide you with information regard-
ing the actuarial value of this benefit plan.’’
On February 6, 2020, the final day of trial, the defen-
dant submitted an updated financial affidavit that, for
the first time, assigned a value of $37,854 to her pension.
The plaintiff’s counsel questioned the defendant as to
how that value was calculated, and the defendant’s
counsel interjected and explained that the figure came
from the letter from the State Employee Retirement
Commission. The plaintiff’s counsel argued to the court
that ‘‘the problem is there’s a value put on a pension
and it didn’t correctly value. So, it’s a very small amount
of money that’s put on and counsel, nor am I, [are]
qualified . . . [to] value pensions in order to put a num-
ber on there and to have the court rely on that as
the total value of someone’s pension.’’ The defendant’s
counsel then explained that ‘‘this just reflects what is
actually accumulated to date from the exhibit that’s in
evidence in terms of employee contributions plus the
interest that’s in it. . . . [I]t’s very transparent about
where it comes from.’’ The defendant’s counsel subse-
quently acknowledged that the value listed on the finan-
cial affidavit did not reflect the present value of the
defendant’s pension.10
In her proposed orders, the defendant requested that
the court order the plaintiff to transfer 50 percent of
his 457 (b) retirement plan to her. Additionally, she
proposed that the court award her ‘‘the amount neces-
sary to equalize the marital portion of his pension(s).’’ In
his proposed orders, the plaintiff agreed that he should
transfer 50 percent of his 457 (b) retirement plan to the
defendant, but he requested that each party retain his
or her respective pension.
In its memorandum of decision, the trial court con-
cluded that ‘‘[n]either party has valued the state and
city pensions which each is entitled to receive upon
retirement. The figure of [$37,854] listed on the [defen-
dant’s] financial affidavit as the value of her state pen-
sion is not the present value of that pension. . . .
[B]oth parties are entitled to a pension upon retirement
and that has been taken into consideration when putting
together these financial orders.’’ The court then ordered
that ‘‘[e]ach party shall retain sole ownership of their
respective pension plans as listed on their financial
affidavits free and clear of any claim by the other,’’ and
ordered the plaintiff to transfer 75 percent of his 457
(b) retirement plan to the defendant.
The following legal principles guide our analysis of
the defendant’s claim. ‘‘[Section] 46b-81 governs the
distribution of the assets in a dissolution case. Section
46b-81 (a) authorizes the court to assign to either spouse
all or any part of the estate of the other spouse. . . .
Section 46b-81 (c) provides for the court’s consideration
of the length of the marriage, the causes for the . . .
dissolution of the marriage . . . the age, health, sta-
tion, occupation, amount and sources of income, earn-
ing capacity, vocational skills, education, employability,
estate, liabilities and needs of each of the parties and
the opportunity of each for future acquisition of capital
assets and income. The court shall also consider the
contribution of each of the parties in the acquisition,
preservation or appreciation in value of their respective
estates.’’ (Internal quotation marks omitted.) Anketell
v. Kulldorff, 207 Conn. App. 807, 834–35, 263 A.3d 972,
cert. denied, 340 Conn. 905, 263 A.3d 821 (2021).
‘‘[A] fundamental principle in dissolution actions is
that a trial court may exercise broad discretion in . . .
dividing property as long as it considers all relevant
statutory criteria. . . . While the trial court must con-
sider the delineated statutory criteria [when allocating
property], no single criterion is preferred over others,
and the court is accorded wide latitude in varying the
weight placed upon each item under the peculiar cir-
cumstances of each case. . . . In dividing up property,
the court must take many factors into account. . . . A
trial court, however, need not give each factor equal
weight . . . or recite the statutory criteria that it con-
sidered in making its decision or make express findings
as to each statutory factor.’’ (Internal quotation marks
omitted.) Kent v. DiPaola, 178 Conn. App. 424, 431–32,
175 A.3d 601 (2017).
‘‘As a general framework, [t]here are three stages of
analysis regarding the equitable distribution of each
resource: first, whether the resource is property within
. . . § 46b-81 to be equitably distributed (classifica-
tion); second, what is the appropriate method for
determining the value of the property (valuation); and
third, what is the most equitable distribution of the
property between the parties (distribution).’’ (Internal
quotation marks omitted.) Cunningham v. Cunning-
ham, 140 Conn. App. 676, 681, 59 A.3d 874 (2013).
It is well settled that pension benefits constitute prop-
erty subject to equitable distribution under § 46b-81.11
See, e.g., Bender v. Bender, 258 Conn. 733, 749, 785
A.2d 197 (2001); Krafick v. Krafick, 234 Conn. 783, 798,
663 A.2d 365 (1995). ‘‘Pension benefits constitute a form
of deferred compensation for services rendered. . . .
Pension benefits are widely recognized as among the
most valuable assets that parties have when a marriage
ends. . . . Nevertheless, there is no set formula that a
court must follow when dividing the parties’ assets,
including pension benefits.’’ (Internal quotation marks
omitted.) Kent v. DiPaola, supra, 178 Conn. App. 434–
35.
In Krafick v. Krafick, supra, 234 Conn. 800–804, our
Supreme Court discussed three methods of valuing and
distributing pension benefits. ‘‘The first, called the pres-
ent value or offset method, requires the court to deter-
mine the present value of the pension benefits, decide
the portion to which the nonemployee spouse is enti-
tled, and award other property to the nonemployee
spouse as an offset to the pension benefits to which
he or she is otherwise entitled. . . . For defined benefit
pensions, present value represents the sum which a
spouse will take at the present time in return for giving
up the right to receive an unknown number of monthly
checks in the future.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 800. ‘‘Once the court has deter-
mined the present value of the benefits at issue, it may,
in light of relevant equitable considerations, award
those benefits to the employee spouse and/or may offset
the nonemployee’s equitable share in the pension bene-
fits with an award of other assets.’’ Id., 801.
Calculating a pension’s present value ‘‘depends on
several factors, including the employee spouse’s life
expectancy, the proper interest rate for discount and
the date of retirement,’’ and, therefore, such a calcula-
tion requires the use of ‘‘generally accepted actuarial
principles.’’ (Internal quotation marks omitted.) Id.,
800–801; see also Bender v. Bender, supra, 258 Conn.
756–57 (‘‘[c]alculating [a pension’s present value] may
require taking actuarial testimony, which generally
involves: (1) determining future benefits, taking into
consideration the date of the employee spouse’s retire-
ment, postmarital salary, future taxes and the duration
of benefits; and (2) discounting for present value, the
probability of mortality and the probability of forfei-
ture’’).
The present value method ‘‘has the advantage of
effecting a ‘clean break’ between the parties’’ and
‘‘avoids extended supervision and enforcement by the
courts,’’ but ‘‘[t]he drawback to the [present value]
method is that it places the entire risk of forfeiture
before maturity on the employee spouse.’’ Krafick v.
Krafick, supra, 234 Conn. 802. Moreover, ‘‘this method
is not feasible . . . where no present value can be
established [by expert testimony] and the parties are
unable to reach agreement as to the value of the pen-
sion.’’ (Citations omitted; internal quotation marks
omitted.) Id.‘‘The second and third recognized methods for valu-
ing and distributing pensions involve delaying distribu-
tion until the pension matures.’’ Id., 803. Under the
second method, called the ‘‘present division’’ method,
‘‘the trial court determines at the time of trial the per-
centage share of the pension benefits to which the non-
employee spouse is entitled. The court may then . . .
presently divide or assign the pension benefits between
the spouses. . . . In other words, the court will declare
that, upon maturity, a fixed percentage of the pension be
distributed to each spouse.’’ (Citation omitted; internal
quotation marks omitted.) Id. Although one disadvan-
tage of the present division method is ‘‘the cost of pro-
longing the parties’ entanglement with each other,’’ a
significant advantage to this approach is that it
‘‘impose[s] equally on the parties the risk of forfeiture.’’
(Internal quotation marks omitted.) Bender v. Bender,
supra, 258 Conn. 759. ‘‘This method does not require
expert testimony from an actuary’’; Kent v. DiPaola,
supra, 178 Conn. App. 436; and its use is ‘‘favored when
. . . the evidence is inadequate to establish present
value.’’ Krafick v. Krafick, supra, 804.
Under the third method discussed in Krafick, called
the ‘‘reserved jurisdiction’’ method, ‘‘the trial court
reserves jurisdiction to distribute the pension until ben-
efits have matured. Once matured, the trial court will
determine the proper share to which each party is enti-
tled and divide the benefits accordingly.’’ (Internal quo-
tation marks omitted.) Id., 803. Our Supreme Court
has expressly rejected utilizing the reserved jurisdiction
method. See Bender v. Bender, supra, 258 Conn. 761(explaining that ‘‘the statutory scheme regarding finan-
cial orders appurtenant to dissolution proceedings pro-
hibits the retention of jurisdiction over orders regarding
. . . the division of the marital estate’’ (internal quota-
tion marks omitted)).
The method of valuing and distributing pension bene-
fits is to be left to the sound discretion of the trial court.
Kent v. DiPaola, supra, 178 Conn. App. 436; see also
Bornemann v. Bornemann, 245 Conn. 508, 532, 752
A.2d 978 (1998) (‘‘[i]n selecting and applying an appro-
priate valuation method, the trial court has considerable
discretion’’). ‘‘[I]t is within the trial court’s discretion
. . . to choose, on a case-by-case basis, among the pres-
ent value method, the present division method of
deferred distribution, and any other valuation method
that it deems appropriate in accordance with Connecti-
cut law that might better address the needs and interests
of the parties. . . . The touchstone of valuation, as well
as the ultimate distribution of pension benefits, is the
court’s power to act equitably.’’ (Citation omitted; inter-
nal quotation marks omitted.) Bender v. Bender, supra,258 Conn. 760.
On appeal, the defendant first argues that the court
‘‘improperly valued the pensions of the parties by
assigning them no value in the distribution of the prop-
erty.’’ Relying heavily on Krafick v. Krafick, supra, 234
Conn. 783, the defendant also contends that the court
gave ‘‘no consideration to the value of each pension.’’
In Krafick v. Krafick, supra, 234 Conn. 805–806, the
trial court failed to consider the plaintiff’s pension inter-
est as an asset because it did not have a liquid value
and the court did not employ a substitute value. Our
Supreme Court concluded that it was an abuse of discre-
tion ‘‘to reject present value or any value for vested
pension benefits merely because the asset is nonliquid,
thereby effectively removing that property interest from
the scales in determining an equitable division of all of
the property before the court.’’ Id., 806.
The present case is distinguishable from Krafick.
Unlike the trial court in Krafick, the trial court in the
present case did not remove the parties’ pensions from
the scales in determining an equitable division of the
parties’ property but, instead, explicitly stated that
‘‘both parties are entitled to a pension upon retirement
and that has been taken into consideration when put-
ting together these financial orders.’’ (Emphasis
added.) The court then distributed the parties’ pensions
in a manner consistent with the present division
method, in that it assigned a ‘‘fixed percentage of the
[pensions] . . . to each spouse’’; Krafick v. Krafick,
supra, 234 Conn. 803; by ordering that each party retain
sole ownership, or 100 percent, of his or her respective
pension.12 See, e.g., Riccio v. Riccio, 183 Conn. App.
823, 824–25, 828–29, 194 A.3d 337 (2018) (trial court
utilized present division method when it ordered each
party to retain his or her respective pensions).
Although, in Krafick, our Supreme Court noted that
‘‘a trial court, when utilizing a method to ascertain the
value of a pension, should reach that value on the
record’’; (emphasis added) Krafick v. Krafick, supra,234 Conn. 804; our Supreme Court also has recognized,
in Bornemann v. Bornemann, supra, 245 Conn. 535,
that, ‘‘when neither party in a dissolution proceeding
chooses to introduce detailed information as to the
value of a given asset, neither party may later complain
that it is not satisfied with the court’s valuation of that
asset.’’13 See also id., 536 (‘‘[i]f the parties fail to [provide
the court with the approximate value of each asset],
the equitable nature of the proceedings precludes them
from later seeking to have the financial orders over-
turned on the basis that the court had before it too little
information as to the value of the assets distributed’’).
In the present case, the defendant cannot assert that
the court improperly failed to assign a specific value
to the parties’ pensions given the scant evidence of
valuation presented by the parties. Neither party pre-
sented evidence as to the present value of their respec-
tive pensions, in the form of expert testimony or other-
wise, and ‘‘[i]t is not the function of the court to make
calculations of that sort to fill evidentiary gaps.’’ Mon-
gillo v. Mongillo, 69 Conn. App. 472, 481, 794 A.2d 1054,
cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002). The
defendant recognizes that ‘‘the only evidence presented
as to the value of [her] pension was the amount of
her contributions,’’ and, as her counsel acknowledged
before the trial court, that value does not accurately
reflect the pension’s actual value.14 Moreover, the defen-
dant recognizes that ‘‘the only evidence presented
regarding the plaintiff’s pension [was] calculations as
to the expected benefit,’’ rather than the total present
value, and the parties’ calculations conflicted. The
court, therefore, was unable to assign a specific value
to the parties’ pensions.
To the extent that the defendant also contends that
the court was required to ‘‘equalize’’ the parties’ pen-
sions pursuant to the present division method and to
distribute 50 percent of each pension to the parties, we
disagree. The court is not required to distribute the
pensions equally, or at all, for its order to be equitable.
See, e.g., Casey v. Casey, 82 Conn. App. 378, 387, 844
A.2d 250 (2004) (no abuse of discretion when court
ordered that both parties retain their own pensions, as
‘‘the court was not obligated to divide equally, or in
any manner, the portion of the parties’ pensions that
accrued during the term of the marriage’’).
Moreover, we are not persuaded by the defendant’s
argument that the court’s order was inequitable because
‘‘her pension benefits and earning capacity are substan-
tially less than the plaintiff’s,’’ given the entire mosaic
of the court’s judgment. Section 46b-81 (a) ‘‘permits
the farthest reaches from an equitable division as is
possible, allowing the court to assign to either the hus-
band or wife all or any part of the estate of the other.
. . . On the basis of the plain language of § 46b-81,
there is no presumption in Connecticut that marital
property should be divided equally prior to applying
the statutory criteria. . . . [I]ndividual financial orders
in a dissolution action are part of the carefully crafted
mosaic that comprises the entire asset reallocation
plan. . . . Under the mosaic doctrine, financial orders
should not be viewed as a collection of single discon-
nected occurrences, but rather as a seamless collection
of interdependent elements.’’ (Citation omitted; internal
quotation marks omitted.) Riccio v. Riccio, supra, 183
Conn. App. 827. In the present case, although the court
ordered the parties to retain their respective pensions,
it awarded the defendant, among other things, 75 per-
cent of the plaintiff’s 457 (b) retirement plan, which
amounted to approximately $30,071, beyond that which
the defendant had requested in her proposed orders,
the marital home, which had equity in the amount of
$71,000, and alimony in the amount of $250 per week
for a duration of two years.
Considering the totality of the court’s financial
awards, we cannot conclude that the court’s order,
which declined to award the defendant a portion of the
plaintiff’s pension, was inequitable. See Riccio v. Riccio,
supra, 183 Conn. App. 824–27 (no abuse of discretion in
distribution of retirement assets when court distributed
portion of 401 (k) plan but ordered that ‘‘[t]he parties
shall retain, free and clear of any claim by the other,
their defined benefit plans’’ (internal quotation marks
omitted)); see, e.g., Mongillo v. Mongillo, supra, 69
Conn. App. 482 (‘‘[g]iven the totality of the court’s prop-
erty disposition awards, the court did not act improp-
erly in failing to award the plaintiff a portion of the
defendant’s pension’’). Accordingly, we conclude that
the court did not abuse its discretion in its distribution
of the parties’ pensions.
IV
Finally, the defendant claims that the court abused
its discretion in denying her request for attorney’s fees.
Specifically, the defendant contends that the court’s
denial of her claim for attorney’s fees ‘‘undermines the
rest of the financial orders.’’ We disagree.
The following additional facts are necessary to our
consideration of this claim. In the defendant’s proposed
orders, which were filed with the court on the final day
of trial, the defendant requested that ‘‘[t]he plaintiff
shall pay to the defendant $12,000 in attorney’s fees.’’
In her financial affidavit submitted on that same date,
the defendant stated that she owed her counsel’s law
firm $11,084 and marked that debt as a ‘‘joint’’ liability.
The defendant subsequently filed an affidavit of fees
and costs, indicating that she had incurred a total of
$24,945.43 in attorney’s fees. In his proposed orders,
the plaintiff requested that the defendant pay him $5000
in attorney’s fees. In his December 20, 2019 financial
affidavit, the plaintiff indicated that he owed his coun-
sel’s law firm $28,714.
In its memorandum of decision dissolving the parties’
marriage, the court noted that the debt listed on the
defendant’s financial affidavit in connection with her
counsel’s law firm was the defendant’s ‘‘sole debt and
not a joint debt.’’ The court then ordered that ‘‘[e]ach
party shall be responsible for the outstanding balances
[owed] to their own attorney in connection with these
proceedings.’’ The court explicitly stated that it weighed
the applicable statutory factors in arriving at this deci-
sion.
We begin our analysis by setting forth the applicable
legal principles and standard of review. General Stat-
utes § 46b-62 (a) ‘‘governs the award of attorney’s fees
in dissolution proceedings and provides that the court
may order either spouse . . . to pay the reasonable
attorney’s fees of the other in accordance with their
respective financial abilities and the criteria set forth
in [§] 46b-82. These criteria include the length of the
marriage, the causes for the . . . dissolution of the
marriage or legal separation, the age, health, station,
occupation, amount and sources of income, vocational
skills, employability, estate and needs of each of the
parties and the award . . . .’’ (Internal quotation marks
omitted.) O’Brien v. O’Brien, 138 Conn. App. 544, 556,
53 A.3d 1039 (2012), cert. denied, 308 Conn. 937, 66
A.3d 500 (2013).
‘‘Courts ordinarily award counsel fees in divorce
cases so that a party . . . may not be deprived of [his
or] her rights because of lack of funds. . . . Where,
because of other orders, both parties are financially
able to pay their own counsel fees they should be per-
mitted to do so. . . . An exception to the rule . . . is
that an award of attorney’s fees is justified even where
both parties are financially able to pay their own fees
if the failure to make an award would undermine its
prior financial orders . . . . [A]n award of attorney’s
fees in a marital dissolution case is warranted only
when at least one of two circumstances is present: (1)
one party does not have ample liquid assets to pay for
attorney’s fees; or (2) the failure to award attorney’s
fees will undermine the court’s other financial
orders. . . .
‘‘Whether to allow counsel fees, [under § 46b-62 (a)],
and if so in what amount, calls for the exercise of
judicial discretion. . . . An abuse of discretion in
granting counsel fees will be found only if [a reviewing
court] determines that the trial court could not reason-
ably have concluded as it did.’’ (Citations omitted; inter-
nal quotation marks omitted.) Dolan v. Dolan, 211 Conn.
App. 390, 405–406, 272 A.3d 768, cert. denied, 343 Conn.
924, 275 A.3d 626 (2022).
On appeal, the defendant claims that the court’s fail-
ure to award her attorney’s fees undermines the court’s
other financial orders awarding her a portion of the
plaintiff’s 457 (b) plan and awarding her alimony. Spe-
cifically, the defendant first contends that she ‘‘still
owed at least [$11,084]’’ in legal fees, which would con-
stitute approximately one third of the $30,071 that she
would receive from the plaintiff’s 457 (b) plan. The
defendant also argues that the court’s denial of attor-
ney’s fees ‘‘eviscerates virtually the entire alimony
awarded,’’ as she would receive approximately $26,000
in alimony over the course of two years and she had
incurred a total of approximately $25,000 in attor-
ney’s fees.
Viewing the court’s financial orders as a whole, how-
ever, instead of in isolation, we cannot conclude that
the court abused its discretion in declining to award
attorney’s fees to the defendant.15 We recognize that
the defendant had requested $12,000 in attorney’s fees,
not the total amount of attorney’s fees that she had
incurred. Although ‘‘ample liquid funds [are certainly]
not an absolute litmus test for an award of counsel
fees’’; (internal quotation marks omitted) Dowling v.
Szymczak, 309 Conn. 390, 411–12, 72 A.3d 1 (2013);
the court reasonably could have concluded that the
defendant had sufficient funds to pay her attorney’s
fees without any risk of undermining the efficacy of
the court’s other financial orders. In addition to being
awarded $250 per week in alimony and 75 percent of
the plaintiff’s 457 (b) plan, valued at approximately
$30,071, the defendant continued to receive income
from her employment, and her February 16, 2020 finan-
cial affidavit indicated that she had $5794 in checking
and savings accounts.
In light of the record, therefore, the defendant has
not demonstrated how the court’s ‘‘failure to award
attorney’s fees would [have] undermine[d] the court’s
other financial orders.’’ Bornemann v. Bornemann,
supra, 245 Conn. 544. Accordingly, we conclude that
the court did not abuse its discretion in declining to
award attorney’s fees to the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Both children reached the age of majority before the dissolution judgment
was rendered. Pursuant to General Statutes § 46b-56c, the court retained
jurisdiction to enter educational support orders for higher education
expenses as to the parties’ younger child, who was twenty years old at the
time of the dissolution. This aspect of the court’s judgment is not at issue
in the present appeal.
2
The plaintiff previously had filed a motion for order requesting that the
court order the parties to cooperate in listing the marital home for sale, as
‘‘[n]either party has the financial means to solely pay the household
expenses,’’ but the court denied that motion.
3
The defendant had filed a motion for exclusive use and occupancy of
the marital home, which was granted on agreement of the parties.
4
The court simultaneously denied the defendant’s February 6, 2020 motion
for contempt, which also alleged that the defendant failed to comply with
the terms of the court’s October 9, 2019 order. The defendant does not
appeal from the court’s denial of that motion.
5
The court did not explicitly resolve the ‘‘threshold question of whether
the underlying order . . . was sufficiently clear and unambiguous so as to
support a judgment of contempt’’; (internal quotation marks omitted) Keller
v. Keller, 158 Conn. App. 538, 545, 119 A.3d 1213 (2015), appeal dismissed,
323 Conn. 398, 147 A.3d 146 (2016) (certification improvidently granted);
see also Powell-Ferri v. Ferri, 326 Conn. 457, 468, 165 A.3d 1124 (2017)
(civil contempt may be founded only on clear and unambiguous court order);
which the defendant also bore the burden to establish as the moving party.
See Puff v. Puff, supra, 334 Conn. 365. Nevertheless, on appeal, the plaintiff
concedes that the court’s order was sufficiently clear.
6
At trial, the defendant testified that, while the dissolution action was
pending, she had spent approximately $1000 during a trip to Rome, Italy,
and approximately $1000 during a trip to Canada. She also testified that she
used some funds from the vacation club account toward obtaining her
bachelor’s degree in psychology.
7
The defendant also contends that the court ‘‘failed to consider the plain-
tiff’s received, and soon to be received, retroactive raises for approximately
three . . . years of employment that also included extra duty and over-
time.’’
At trial, Jessica Criscuolo, the payroll supervisor for the city of New
Haven, testified that the plaintiff was entitled to certain wage increases,
retroactive to July, 2016, which he would receive in three equal payments
of $2780.62, separate from his regular weekly paycheck. Criscuolo testified
that the plaintiff already had received one payment in November, 2019, and
would receive the remaining two payments in July, 2020, and July, 2021, if he
was still actively employed by the New Haven Police Department. Criscuolo
further testified that, apart from the retroactive payments, the raises were
reflected in the plaintiff’s most recent paychecks.
Our review of the record confirms that the plaintiff’s weekly income as
listed on his December 20, 2019 financial affidavit takes the raises into
consideration. The defendant has failed to demonstrate how the plaintiff’s
two remaining retroactive payments, which he would only receive if he
remained employed, would affect the income that he received on a regular,
weekly basis such that the court was required to consider it as part of the
plaintiff’s income.
8
As mentioned previously in this opinion, the court found that the parties’
‘‘gross and net incomes are as set forth on their financial affidavits.’’ Given
that the court explicitly credited the financial affidavits, the present case
is readily distinguishable from Zaniewski v. Zaniewski, 190 Conn. App.
386, 210 A.3d 620 (2019), on which the defendant heavily relies. See id., 390,
392 (court did not make factual finding as to whether it credited parties’
financial affidavits or trial testimony with respect to parties’ respective gross
incomes and did not otherwise set forth what evidence it relied on in reaching
its conclusions).
9
At trial, the defendant testified that she previously had a 401 (k) plan
before she was employed by the Department of Children and Families and
that she received the funds from that account in 1998, before the parties
were married.
10
The following colloquy took place:
‘‘[The Defendant’s Counsel]: Your Honor, this was really just an attempt
to be completely transparent in terms of . . . it’s her . . .
‘‘The Court: But it’s not the value of the pension.
‘‘[The Defendant’s Counsel]: . . . [T]hen I’ll own that. . . . [M]y apology,
Your Honor. I didn’t intend it to be that, I just wanted to be clear for the
court how much had accumulated to date.
‘‘The Court: If it’s a defined benefit plan, it’s certainly worth a lot more
than what’s shown on the financial affidavit.
‘‘[The Defendant’s Counsel]: . . . [W]e’re happy to amend that, Your
Honor. There was nothing on there before.
‘‘The Court: All right, that’s fine. You don’t need to amend it. I just . . .
so I understand where it comes from.’’
On a financial affidavit filed after the date of the dissolution, the defendant
again marked the value of her pension as ‘‘unknown.’’
11
In the present case, the parties do not dispute that their pension benefits
are distributable property.
12
Because we conclude that the court distributed the pensions in a manner
consistent with the present division method, there is no merit to the defen-
dant’s argument that the court ‘‘could have’’ used the present division method
pursuant to Bender v. Bender, supra, 258 Conn. 733, but did not, and that
the use of such a method ‘‘would have been particularly appropriate in this
case . . . .’’
13
Contrary to the defendant’s contention, our Supreme Court’s analysis
in Bornemann was not based on any determination that the plaintiff in that
case ‘‘purposefully provided the court with as little information as possible’’
or that he ‘‘essentially misled the court.’’ See Bornemann v. Bornemann,
supra, 245 Conn. 535.
14
Utilizing only the total value of the contributions made by the employee
to value a pension ‘‘is inaccurate because it does not recognize the apprecia-
tion of the contributions . . . .’’ Bender v. Bender, supra, 258 Conn. 757 n.10.
15
To the extent that the defendant also argues that she should have
been awarded attorney’s fees simply because the court chose to award her
alimony, and that both involve consideration of the same equitable factors,
we are not persuaded. See, e.g., Hornung v. Hornung, 323 Conn. 144, 177,
146 A.3d 912 (2016) (equitable factors justified alimony award but not attor-
ney’s fees award); Koizim v. Koizim, 181 Conn. 492, 498, 500–501, 435 A.2d
1030 (1980) (equitable factors justified lump sum and periodic alimony
awards but not attorney’s fees award).