Brown v. Brown , 148 Conn. App. 13 ( 2014 )

******************************************************
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.
******************************************************
MATTHEW G. BROWN v. NANCY BROWN
(AC 34314)
Beach, Alvord and Sullivan, Js.
Argued November 13, 2013—officially released February 4, 2014
(Appeal from Superior Court, judicial district of
Hartford, Olear, J.)
Louis Kiefer, for the appellant (plaintiff).
Steven R. Dembo, with whom, on the brief, was P.
Jo Anne Burgh, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiff, Matthew G. Brown, appeals
from the judgment of the trial court dissolving his mar-
riage to the defendant, Nancy Brown. On appeal, the
plaintiff claims that the court (1) improperly determined
that it was in the best interests of the parties’ minor
child to relocate to Canada to reside primarily with
the defendant, (2) abused its discretion in its award of
alimony to the defendant and improperly calculated the
amount of child support that he was required to pay
under the child support guidelines, (3) abused its discre-
tion in limiting the circumstances under which he could
seek modification of his alimony obligation, and (4)
improperly ordered the parties to file a joint tax return
for the 2011 tax year. We reverse the judgment of the
trial court with respect to its order to file a joint tax
return and affirm the judgment in all other respects.
The following facts and procedural history are rele-
vant to the plaintiff’s appeal. The court dissolved the
parties’ twenty-one year marriage on January 6, 2012.
At the time of the dissolution, the parties had two minor
sons, aged seventeen1 and twelve. The court found that
the marriage had broken down irretrievably and that
neither party was solely responsible for the breakdown
of the marriage. The court entered orders with respect
to, inter alia, custody of the minor children and the
primary residence of the younger son,2 the plaintiff’s
obligation to pay alimony and child support, and the
filing of a joint tax return for the 2011 tax year.
The plaintiff appealed from the dissolution judgment
on February 14, 2012.3 On August 30, 2012, the defendant
filed a motion for articulation and a motion for rectifica-
tion asking the trial court to ‘‘clarify’’ or ‘‘rectify’’ its
order with respect to the filing of the joint tax return.
The court held a hearing on September 26, 2012, and,
at that time, acknowledged that its January 6, 2012
memorandum of decision did not reflect the court’s
intent that the parties would have to agree before they
could be ordered to file a joint tax return. The court
then stated that it was willing to enter an order, if the
parties would so stipulate, ‘‘clarifying and correcting’’
the decision to reflect the court’s intention that the
requirement to file a joint tax return was applicable
only if the parties agreed to file jointly for the 2011 tax
year. The parties did not stipulate, and the plaintiff now
claims that this court should order a new hearing and
determination regarding all of the financial orders of
the judgment of dissolution.
I
The plaintiff’s first claim on appeal is that the court
improperly determined that it was in the best interests
of the parties’ younger son to relocate to Ontario, Can-
ada, to reside primarily with the defendant. The plaintiff
argues that the court ‘‘failed to follow General Statutes
§ 46b-56 (b)’’4 because their son would not be provided
with ‘‘the active and consistent involvement of both
parents consistent with their abilities and interest.’’ He
claims that because of the ‘‘difficulty of efficient airline
flights, and [his] demanding schedule as a transplant
surgeon,’’ he will be unable to exercise the visitation
provided by the court.
The following additional facts are relevant to this
claim. The defendant was born and raised in Canada
and attended college in Canada. She completed a three
year nursing program and was licensed as a registered
nurse in Canada. The defendant left Canada and secured
employment as a nurse at Duke University, where she
met the plaintiff during his internship. On August 11,
1990, they married in Ontario, Canada, and the parties
moved to several locations between 1991 and 1997 in
furtherance of the plaintiff’s career development. The
plaintiff obtained a fellowship in Ontario, Canada, and
the parties resided there between 1995 and 1997. The
defendant wanted to remain in Canada once the fellow-
ship had been completed, and the plaintiff agreed to
seek a permanent placement in Canada but was unsuc-
cessful in his attempts. In 1997, the parties moved to
West Hartford, and the plaintiff is currently employed
as a transplant surgeon at Hartford Hospital.
The defendant was supportive of the plaintiff and left
employment that she found rewarding when he wanted
to relocate to take advantage of his professional oppor-
tunities. The defendant ceased working outside of the
home when their first son was born in 1994, and her
nursing license expired in 1995. In 1999, the parties’
second son was born, and the defendant continued to
stay at home and attended to the children and their
needs while the plaintiff worked long hours. The chil-
dren are citizens of both the United States and Canada,
and they have spent a significant portion of their child-
hood in Canada with the defendant and her extended
family.
In the beginning of 2009, the plaintiff told the defen-
dant that the marriage was over. Although the parties
attempted marriage counseling in the spring of 2009,
the plaintiff decided that he no longer wanted to be
married and moved out of the marital home in August,
2009. Shortly thereafter, the defendant enrolled in a
nursing refresher course that she completed in April,
2010. She believed that if she obtained her nursing
license in Connecticut, that license would be recognized
through reciprocity in Canada. The defendant later dis-
covered that there was no reciprocity. She received a
letter dated October 5, 2011, from the college of nurses
in Ontario, Canada, advising her that she would have to
complete several courses and a registered nurse clinical
practice in order to obtain her Canadian license.
The plaintiff commenced this dissolution action on
February 9, 2010. The plaintiff was aware that the defen-
dant wanted to move back to Canada. The parties and
their attorneys signed a stipulation dated February 22,
2011, which was entered as an order of the court, regard-
ing pendente lite alimony and the division of their 2010
federal tax refund. That stipulation additionally con-
tained the following provision: ‘‘[The defendant] is relo-
cating to Canada. After she relocates on or about March
5, 2011, [the plaintiff] shall have exclusive use of the
marital home in West Hartford.’’ The older son went to
live with the defendant in Canada after the school year
ended in 2011, and decided to stay there. The younger
son continued to live with the plaintiff and a nanny in
West Hartford. At the time of the trial, the plaintiff
sought sole custody of the younger son. The defendant
sought joint custody of the younger son with his primary
residence to be with her in Canada.
The court, after a six day trial, entered orders award-
ing the parties joint legal custody of the children. The
parties already had agreed that the older son’s primary
residence would be with the defendant in Canada. With
respect to the younger son, the court found that it was
in his best interests to relocate to Ontario, Canada,
to reside primarily with the defendant. In making that
determination, the court stated that it had considered
the criteria set forth in § 46b-56 and applicable case law.
The court made the following findings in its January
6, 2012 memorandum of decision: (1) the defendant’s
decision to relocate to Canada was ‘‘reasoned and well
thought out’’; (2) the defendant’s extended family lived
in Canada; (3) the children had spent significant periods
of time in Canada; (4) the defendant would use her best
efforts to continue to foster the relationship between
the plaintiff and the younger son; (5) the younger son,
by his conduct, indicated his preference to live in Can-
ada; (6) the defendant’s reasons for moving to Canada
were valid and included the betterment of her life and
the lives of the children; (7) the defendant’s ‘‘nurturing
and supportive style’’ would help the younger son’s
transition with respect to the relocation; and (8) the
plaintiff had the financial resources to visit the children
in Canada and to have them visit him in Connecticut.
The plaintiff challenges the court’s findings and
claims that the court could not reasonably conclude
that it was in the younger son’s best interests to relocate
to Canada to reside primarily with the defendant. ‘‘Our
standard of review of a trial court’s decision regarding
custody, visitation and relocation orders is one of abuse
of discretion. . . . [I]n a dissolution proceeding the
trial court’s decision on the matter of custody is commit-
ted to the exercise of its sound discretion and its deci-
sion cannot be overridden unless an abuse of that
discretion is clear. . . . The controlling principle in a
determination respecting custody is that the court shall
be guided by the best interests of the child. . . . In
determining what is in the best interests of the child,
the court is vested with a broad discretion. . . . [T]he
authority to exercise the judicial discretion under the
circumstances revealed by the finding is not conferred
upon this court, but upon the trial court, and . . . we
are not privileged to usurp that authority or to substitute
ourselves for the trial court. . . . A mere difference of
opinion or judgment cannot justify our intervention.
Nothing short of a conviction that the action of the trial
court is one which discloses a clear abuse of discretion
can warrant our interference. . . .
‘‘The trial court has the opportunity to view the par-
ties first hand and is therefore in the best position to
assess the circumstances surrounding a dissolution
action, in which such personal factors as the demeanor
and attitude of the parties are so significant. . . .
[E]very reasonable presumption should be given in
favor of the correctness of [the trial court’s] action. . . .
We are limited in our review to determining whether the
trial court abused its broad discretion to award custody
based upon the best interests of the child as reasonably
supported by the evidence.’’ (Internal quotation marks
omitted.) Lederle v. Spivey, 113 Conn. App. 177, 185–86,
965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d
728 (2009).
The court’s findings are supported by the record.
Those findings support the court’s determination that
it would be in the best interests of the minor son to
relocate to Canada to reside primarily with the defen-
dant. Although the plaintiff argues that other testimony
at trial favors a different result, he essentially requests
that we reassess and reweigh the evidence in his favor.
‘‘[W]e do not retry the facts or evaluate the credibility
of witnesses.’’ (Internal quotation marks omitted.)
Quinto v. Boccanfusco, 139 Conn. App. 129, 135, 54
A.3d 1069 (2012). The court expressly stated that it
considered the criteria set forth in the applicable stat-
utes and case law. ‘‘[T]he trial court is presumed to
have applied the law correctly, and it is the burden
of the appellant to show to the contrary.’’ (Internal
quotation marks omitted.) Emrich v. Emrich, 127 Conn.
App. 691, 703, 15 A.3d 1104 (2011). For these reasons,
we conclude that the court did not abuse its broad
discretion and properly based its decision on the best
interests of the minor son.
II
The plaintiff’s next claim is that the court abused its
discretion in its award of alimony to the defendant and
improperly calculated the amount of child support that
he was required to pay under the child support guide-
lines. He argues that the court improperly (1) failed to
find an earning capacity for the defendant, (2) applied
the child support guideline percentage to the net income
of the plaintiff before deducting the alimony that he
was ordered to pay the defendant, and (3) failed to
examine the actual needs of the children in determining
the amount due under the guidelines.5 We are not per-
suaded.
A
We first address the plaintiff’s claim that the court
should have determined that the defendant had an earn-
ing capacity when it entered the financial orders with
respect to alimony and child support. In its memoran-
dum of decision, the court found that the defendant
testified credibly that it would take her three years to
obtain her nursing license in Canada. The court stated:
‘‘Due to the requirements that she must meet to obtain
her license in Ontario, the court does not find that she
has an earning capacity at this time. She will need to
spend the next three years satisfying the requirements
to obtain her license and attending to the children.’’
The plaintiff claims that the court’s determination was
improper because the defendant could have stayed in
the United States, taken a test in Connecticut for recerti-
fication as a nurse, and secured a nursing position in
this country for approximately $67,000 a year.
‘‘In marital dissolution proceedings, under appro-
priate circumstances the trial court may base financial
awards on the earning capacity rather than the actual
earned income of the parties . . . when . . . there is
specific evidence of the [party’s] previous earnings.
. . . It is particularly appropriate to base a financial
award on earning capacity where there is evidence that
the payor has voluntarily quit or avoided obtaining
employment in [the payor’s] field.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Hart v. Hart, 19 Conn. App. 91, 94–95, 561 A.2d 151,
cert. denied, 212 Conn. 813, 565 A.2d 535 (1989).
In the present case, the defendant has not worked
as a nurse since 1994, coincident with the birth of their
first child. Her nursing license expired in 1995. The
court determined that the defendant had significant
familial ties to Canada and that her reasons for relocat-
ing from the United States to Canada were valid. After
three years of course work and clinical practice in Can-
ada, the defendant could be recertified as a registered
nurse and secure employment in her profession in her
country of residence. At the time of the dissolution,
the defendant was unemployed and the plaintiff’s gross
annual income as a transplant surgeon was $423,228.
‘‘A fundamental principle in dissolution actions is that
a trial court may exercise broad discretion in awarding
alimony and dividing property as long as it considers
all relevant statutory criteria. . . . No single criterion
is preferred over others, and the trial court has broad
discretion in varying the weight placed on each criterion
under the circumstances of each case.’’ (Internal quota-
tion marks omitted.) Jungnelius v. Jungnelius, 133
Conn. App. 250, 262, 35 A.3d 359 (2012). The court
expressly stated that it had considered all of the relevant
statutes before rendering its judgment. With respect
to its financial orders, the record supports the court’s
determinations that the defendant had no earning
capacity at the time of the dissolution judgment and
that she needed three years to satisfy the requirements
for obtaining her nursing license in Canada, where she
resided. We cannot conclude that the court abused its
broad discretion under the circumstances of this case.
B
The plaintiff further claims that the court improperly
applied the child support guideline percentage to his
net income before deducting the amount of alimony
that he was ordered to pay the defendant. He argues
that the court calculated his payment of child support
based on income that he did not have. The plaintiff
cites no statutes or case law in support of this argument.
The provisions in the child support guidelines6 com-
pel a different conclusion. Section 46b-215a-1 (17) of
the Regulations of Connecticut State Agencies defines
‘‘ ‘[n]et income,’ ’’ for purposes of calculating the pre-
sumptive amount of child support, to be ‘‘gross income
minus allowable deductions.’’ Section 46b-215a-1 (1) (I)
defines ‘‘ ‘[a]llowable deductions’ ’’ to include ‘‘court-
ordered alimony and child support awards for individ-
uals not involved in the support determination . . . .’’
(Emphasis added.) Because of the plain language of
the child support guidelines, we conclude that this claim
of the plaintiff is without merit.
III
The plaintiff’s next claim is that the court abused its
discretion in limiting the circumstances under which
he could seek modification of his alimony obligation.
Specifically, he argues that the cohabitation and safe
harbor provisions of the court’s orders ‘‘are inconsistent
with the overall public policy which favors modifi-
cation.’’
In its memorandum of decision, the court recited the
appropriate statutory factors for an award of alimony
and entered the following orders: ‘‘[T]he plaintiff shall
pay to the defendant alimony in the amount of $2500
per week for a period of three years from the date of
the dissolution and then in the amount of $2000 per
week for a period of six years (for a total duration
of the alimony award of nine years, subject to earlier
termination as set forth below). . . . Alimony shall ter-
minate on the earliest of the following: (i) the death of
either party; (ii) the remarriage of the defendant; (iii)
nine years from the date of dissolution; or (iv) the defen-
dant’s cohabitation with an unrelated person pursuant
to General Statutes § 46b-86 (b).7 . . . The defendant
shall be permitted to earn gross income from employ-
ment of $75,000 per year and the plaintiff shall be per-
mitted to earn gross income from employment of
$475,000 a year without it being considered a substantial
change [in] circumstances for a modification of
alimony.’’
‘‘It is a well settled principle of matrimonial law that
courts have the authority under § 46b-86 to preclude
the modification of alimony awards. . . . Section 46b-
86 (a) itself provides in relevant part that [u]nless and
to the extent that the decree precludes modification
. . . any final order for the periodic payment of perma-
nent alimony . . . may at any time thereafter be contin-
ued, set aside, altered or modified by said court upon
a showing of a substantial change in the circumstances
of either party. . . . This statute clearly permits a trial
court to make periodic awards of alimony nonmodifi-
able.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Marshall v. Marshall, 119
Conn. App. 120, 128–29, 988 A.2d 314, cert. granted on
other grounds, 296 Conn. 908, 993 A.2d 467 (2010).
The plaintiff first challenges the court’s alimony
award by claiming that the court ‘‘prohibited the plain-
tiff from seeking modification of alimony in the event
that the defendant cohabits with Paul Peggie, her rela-
tive, during the next three years . . . .’’ During the trial,
there had been testimony that the defendant began a
romantic relationship with Peggie, a longtime friend
and distant relative, in November, 2009. The court refer-
enced this testimony at page seventeen of its forty-five
page decision. The court’s alimony award, including the
circumstances under which it was nonmodifiable, was
set forth at pages thirty-two and thirty-three of its deci-
sion. In the alimony section of the opinion, the court
stated that ‘‘[a]limony shall terminate on the earliest
of the following: (i) the death of either party; (ii) the
remarriage of the defendant; (iii) nine years from the
date of dissolution; or (iv) the defendant’s cohabitation
with an unrelated person pursuant to . . . § 46b-86
(b).’’ The plaintiff claims that, by this language, the
court has prohibited modification if the defendant
cohabits with Peggie during the next three years.
The court did not preclude the plaintiff from seeking
a modification of alimony if the defendant cohabits with
Peggie. The subject provision pertains to the automatic
termination of alimony under certain circumstances.
Furthermore, the court expressly referred to § 46b-86
(b) in the cohabitation clause of its orders. This refer-
enced statute provides in relevant part that the court
‘‘may, in its discretion . . . modify such judgment . . .
upon a showing that the party receiving the periodic
alimony is living with another person under circum-
stances’’ that should result in a modification. (Emphasis
added.) General Statutes § 46b-86 (b). The fact that
Peggie is a distant relative, as the court mentioned ear-
lier in the opinion, does not mean that the court consid-
ered him to be a related person for purposes of the
alimony portion of the court’s order, particularly in light
of the fact that the court conditioned its applicability
on § 46b-86 (b).8
With respect to the safe harbor provisions regarding
the defendant’s future income, the plaintiff’s argument
is simply a general pronouncement that ‘‘the overall
public policy . . . favors modification.’’ As previously
discussed, however, the statute expressly authorizes
a trial court to preclude the modification of periodic
alimony awards, and the court’s factual findings in this
case, as detailed earlier in this opinion, support the
limitations placed on future modification of the court’s
award. Accordingly, the court did not abuse its broad
discretion in limiting the circumstances under which
the plaintiff could seek modification of his alimony obli-
gation.
IV
The plaintiff’s final claim is that the court improperly
ordered the parties to file a joint tax return for the 2011
tax year. He argues that Kane v. Parry, 24 Conn. App.
307, 316, 588 A.2d 227 (1991), precludes such an order,
and he requests a new hearing on all of the financial
orders claiming ‘‘a break in the carefully crafted
mosaic.’’ While we agree that the court did not have
the authority to order the filing of a joint tax return in
the absence of the parties’ agreement, we disagree that
reversal of that portion of the judgment necessitates
a new hearing and determination regarding all of the
financial orders of the judgment of dissolution.
‘‘A trial court has the authority to order a party to
file a joint federal personal income tax return if there
was a prior agreement between the parties to do so.
. . . In the absence of such an agreement, the trial court
cannot order the plaintiff to file joint federal personal
income tax returns.’’ (Citation omitted.) Kane v. Parry,
supra, 24 Conn. App. 315–16. In the present case, the
record does not show an agreement to file a joint tax
return for the 2011 tax year. Accordingly, that order
was improper.
The trial court acknowledged that its memorandum
of decision failed to include language regarding the
prerequisite agreement of the parties before it could
issue such an order. The court informed the parties that
the omission was unintentional, and the court offered
to clarify and correct its order if the parties would so
stipulate. The record does not disclose a stipulation
regarding the subject tax return. Accordingly, that por-
tion of the judgment requiring the parties to file a joint
tax return for the 2011 tax year must be reversed.
Contrary to the plaintiff’s argument, however, it is
not necessary for us to remand the case for a new
hearing on all of the financial orders because we con-
clude that reversal of that portion of the judgment order-
ing the filing of a joint tax return will not impact the
‘‘carefully crafted mosaic’’ of the financial awards. See
Morrone v. Morrone, 142 Conn. App. 345, 348, 64 A.3d
803 (2013). This is particularly evident in light of the
court’s remarks at the September 26, 2012 hearing on
the defendant’s motion for rectification and motion for
articulation. At that time, the court stated: ‘‘[T]he court
acknowledges that the wording was not as artful as I
would have wanted and in hindsight sort of properly
reflected and did not properly reflect that the parties
would need to agree to sign a joint tax return. I do
argue that as a discreet issue, I don’t think that it’s of
such a magnitude to implicate the mosaic that was
crafted . . . .’’ Thus, we agree with the plaintiff that
the court could not impose such an order in the absence
of the parties’ agreement to file jointly, but we disagree
that the reversal of that order requires a new hearing
and determination of all of the court’s financial orders.
The judgment is reversed only as to the order requir-
ing the parties to file a joint federal tax return for the
2011 tax year and the case is remanded for further
proceedings consistent with this opinion with respect
to that issue only. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
At the time of oral argument before this court, counsel for the plaintiff
acknowledged that the older son had reached the age of majority.
2
The parties had agreed that the older son’s primary residence would be
with the defendant in Ontario, Canada.
3
The plaintiff filed a motion for an extension of time to file an appeal
that was granted by the court on January 25, 2012.
4
General Statutes § 46b-56 (b) provides in relevant part: ‘‘In making or
modifying any order [re: custody, care, education, visitation and support of
children], the rights and responsibilities of both parents shall be considered
and the court shall enter orders accordingly that serve the best interests of
the child and provide the child with the active and consistent involvement
of both parents commensurate with their abilities and interests. . . .’’
5
In his appellate brief, the plaintiff also claims that the court improperly
(1) failed to examine the actual needs of the children when it determined
the child support award under the child support guidelines, (2) applied a
shared parenting deviation rather than a split custody formula under the
child support guidelines, (3) calculated the arrearage for child support, and
(4) ordered him to pay a percentage of expenses for the children’s camps
and extracurricular activities. We carefully have reviewed these claims and
conclude that they are without merit.
6
‘‘The guidelines are defined as the rules, principles, schedule and work-
sheet established under [the applicable sections] of the Regulations of Con-
necticut State Agencies for the determination of an appropriate child support
award . . . .’’ (Internal quotation marks omitted.) Maturo v. Maturo, 296
Conn. 80, 91, 995 A.2d 1 (2010).
7
General Statutes § 46b-86 (b) provides: ‘‘In an action for divorce, dissolu-
tion of marriage, legal separation or annulment brought by a husband or
wife, in which a final judgment has been entered providing for the payment
of periodic alimony by one party to the other, the Superior Court may, in its
discretion and upon notice and hearing, modify such judgment and suspend,
reduce or terminate the payment of periodic alimony upon a showing that
the party receiving the periodic alimony is living with another person under
circumstances which the court finds should result in the modification, sus-
pension, reduction or termination of alimony because the living arrange-
ments cause such a change of circumstances as to alter the financial needs
of that party.’’
8
At the time of oral argument before this court, counsel for the defendant
stated that he believed the subject language in the court’s memorandum of
decision would not preclude the plaintiff from filing a motion for modifica-
tion of alimony if the defendant cohabited with Peggie.