Talbot v. Talbot , 148 Conn. App. 279 ( 2014 )

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JAMES W. TALBOT v. SHARON R. TALBOT
(AC 35032)
Beach, Bear and West, Js.
Argued November 19, 2013—officially released February 18, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Emons, J.)
Dana M. Hrelic, with whom were Kenneth J.
Bartschi and, on the brief, Brendon P. Levesque, for
the appellant (plaintiff).
James H. Lee, with whom, on the brief, was Kirk A.
Bennett, for the appellee (defendant).
Opinion
BEAR, J. The plaintiff, James W. Talbot, appeals from
the judgment of the trial court denying his postjudgment
motion for modification of alimony, finding him in con-
tempt, and awarding counsel fees to the defendant,
Sharon R. Talbot. On appeal, the plaintiff claims that
the court committed error by (1) denying his motion
for modification of alimony despite the uncontroverted
evidence that there had been a substantial change in
circumstances, and, instead, basing its denial on the
fact that the defendant continues to provide care to
the parties’ forty-two year old daughter who has Down
syndrome, (2) finding him in contempt for failing to
pay the full amount of the alimony awarded to the
defendant, and (3) ordering him to pay the defendant’s
counsel fees for the prosecution of her motion for con-
tempt and for this appeal. We affirm the judgment of
the trial court.
The following facts are relevant to the issues on
appeal. The plaintiff and the defendant were married
on December 5, 1965, and there were five children born
of the marriage, all of whom are over the age of majority.
The parties’ oldest daughter has Down syndrome and
is in the care of the defendant. The court rendered a
judgment of dissolution of marriage on June 17, 2008.
At that time, the plaintiff was sixty-five years old, and
the defendant was sixty-three years old. The court
ordered, inter alia, the plaintiff to pay to the defendant
alimony in the amount of $8000 per month, plus the
mortgage, home equity line of credit, real estate taxes,
insurance premiums, oil, water, gas, electricity and ordi-
nary maintenance costs of the marital home, wherein
the defendant resided and the plaintiff maintained a
medical office, until the property was sold. The court
also ordered that the plaintiff’s alimony obligation
would increase to $12,000 per month after the marital
residence was sold. The plaintiff’s purported gross
income at the time of the marital dissolution was
$275,000, his taxes were $30,000, and his purported net
income was $245,000.1
On July 27, 2011, the plaintiff filed a postjudgment
motion for modification of alimony on the ground that
there had been a substantial change in circumstances
due to a significant reduction in his annual income
and a life-threatening decline in his health, and the
defendant filed an objection thereto. On August 30,
2011, the defendant filed a motion for contempt on the
grounds that the plaintiff had failed to pay the mortgage
on the marital home and that he had ‘‘informed the
defendant that he will no longer be making alimony
payments as ordered by [the] court.’’ The parties agreed
that the motions could be heard together.
At the start of the hearing on the parties’ motions on
June 29, 2012, they submitted their financial affidavits.
The plaintiff’s affidavit was dated June 20, 2012, wherein
he attested that his gross and net income was $15,000
per month from employment, that he received $2009
per month from social security, and that his ‘‘Total Net
Income Per Month’’ was $17,009, which equals $204,108
per year.2 The defendant’s affidavit was dated June 29,
2012, wherein she attested that, not including alimony,
her monthly gross income was $1200 from employment,
that she received $853 from social security, and that
her net income after taxes was $1775.31, which equals
an annual gross income of $21,303.72. Following a hear-
ing on the parties’ motions, the court, on August 8,
2012, denied the plaintiff’s postjudgment motion for
modification of alimony, finding, ‘‘[a]fter considering
the statutory criterion in [General Statutes §] 46b-82,’’
that the plaintiff’s ‘‘short, although very serious illness,’’
did not reflect a significant change in circumstances
that would warrant a modification and that his ‘‘gross
receipts are still high enough that he can afford to pay
[the defendant] at least $8000 a month.’’ The court also
found that the plaintiff was in contempt because the
‘‘reduction in his gross income’’ was not significant
enough to justify his reduction in payments to the defen-
dant and that his decision not to pay the defendant
‘‘was intentional and rather outrageous.’’ Additionally,
the court found that the plaintiff had failed to curtail
his spending and that ‘‘rather than pay [the defendant]
who provides sole custody and care of [their forty-two]
year old . . . daughter [with Down syndrome],’’ he
‘‘made payments for all personal reasons . . . .’’
Accordingly, the court ordered the plaintiff to continue
to pay the defendant $8000 per month in alimony and
also to pay $5000 per month on the $54,000 arrearage
that had accrued and the defendant’s attorney’s fees.
On August 27, 2012, the plaintiff filed a motion to
reargue, requesting that the court reconsider its deci-
sion on the grounds that the court improperly used the
plaintiff’s gross income rather than his net income, that
it had not given consideration to the plaintiff’s health
and advanced age, and that it improperly applied a de
novo standard of review to the motion for modification
rather than examine whether there had been a substan-
tial change in circumstance. On August 31, 2012, the
court denied the plaintiff’s motion to reargue. On Sep-
tember 12, 2012, the plaintiff filed the present appeal.
Following the plaintiff’s filing of his appeal, the defen-
dant filed a motion with the trial court requesting that
the plaintiff be required to pay her appellate counsel
fees in the anticipated amount of $25,000. On December
18, 2012, following a hearing on the defendant’s motion,
the court granted the motion in an oral decision. The
plaintiff has amended his appeal to include this ruling.
Additional facts will be set forth as necessary.
I
The plaintiff claims that the court committed error
when it denied his motion for modification of alimony
because he provided uncontroverted evidence that
there had been a substantial change in circumstances
warranting a modification. He argues that the court
improperly based its decision on the fact that the defen-
dant provides care to the parties’ forty-two year old
daughter who has Down syndrome, rather than on
whether there had been a substantial change in circum-
stances. We are not persuaded.
‘‘An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action.’’ (Internal quotation
marks omitted.) McRae v. McRae, 139 Conn. App. 75,
80, 54 A.3d 1049 (2012).
‘‘General Statutes § 46b-86 governs the modification
or termination of an alimony or support order after the
date of a dissolution judgment. When . . . the disputed
issue is alimony, the applicable provision of the statute
is § 46b-86 (a), which provides that a final order for
alimony may be modified by the trial court upon a
showing of a substantial change in the circumstances
of either party. . . . Under that statutory provision, the
party seeking the modification bears the burden of dem-
onstrating that such a change has occurred. . . . Ali-
mony decrees may only be modified upon proof that
relevant circumstances have changed since the original
decree was granted. . . . In general the same sorts of
[criteria] are relevant in deciding whether the decree
may be modified as are relevant in making the initial
award of alimony. They have chiefly to do with the
needs and financial resources of the parties. . . . To
obtain a modification, the moving party must demon-
strate that circumstances have changed since the last
court order such that it would be unjust or inequitable
to hold either party to it. Because the establishment of
changed circumstances is a condition precedent to a
party’s relief, it is pertinent for the trial court to inquire
as to what, if any, new circumstance warrants a modifi-
cation of the existing order. In making such an inquiry,
the trial court’s discretion is essential.’’ (Internal quota-
tion marks omitted.) Id., 82–83.
The plaintiff argues that the court, instead of examin-
ing whether the plaintiff had established a substantial
change in circumstances that would warrant a modifica-
tion of his alimony obligation, improperly ‘‘considered
the presence of the parties’ adult daughter in the defen-
dant’s home’’ when denying the motion for modifica-
tion. He argues that this case is directly on point with
Loughlin v. Loughlin, 280 Conn. 632, 660, 910 A.2d 963(2006), a case in which the trial court improperly had
considered the presence of the parties’ adult children
and grandchild in the home when making its initial
alimony award. He contends that, in the present case,
the court made the same error by basing the denial of
the plaintiff’s motion for modification on the fact that
the defendant was caring for the parties’ disabled
adult daughter.
The plaintiff further argues that he established uncon-
troverted evidence of a substantial change in circum-
stances that would warrant a modification of his
alimony obligation, which the court ignored. Specifi-
cally, he states that ‘‘the uncontroverted evidence
showed that the plaintiff suffered from a liver disorder
which caused him to constantly experience severe
fatigue, to lose thirty pounds, and ultimately to have a
liver transplant. Both before and after his liver trans-
plant, he was unable to work a full schedule or go into
the office regularly. Where, at the time of the 2008
dissolution [judgment], he was working four ten to
eleven hour days per week, he now, after the transplant,
could work only two and a half to three part-time days
per week. This reduced schedule continues to this day.
. . . [A]t the time of trial, the plaintiff was grossing an
income of only $15,000 per month. His adjusted gross
income was thus approximately $180,000. By contrast,
[his] gross adjusted income at the time of the dissolution
[judgment] was approximately $275,000. Put simply,
these uncontroverted numbers show that due to circum-
stances outside of his control—namely, his illness and
liver transplant—the plaintiff’s gross . . . income
[was] substantially reduced, necessitating a downward
modification of alimony by the court.’’ We are not per-
suaded.
At the time of the dissolution judgment, the court
found that ‘‘[t]he plaintiff’s financial affidavit . . .
list[ed] gross annual income as $275,000 (estimated)
less taxes [and Federal Insurance Contributions Act
withholdings] of $30,000, and net income per year of
$245,000 or $20,416 monthly.’’ This finding is supported
by the financial affidavit contained in the record. The
defendant’s financial affidavit from the time of the dis-
solution judgment reveals that at that time she earned
$910 in gross monthly income, minus taxes of $69.63,
for a total net monthly income of $840.37.
Despite the plaintiff’s arguments on appeal concern-
ing his testimony at the hearing on the parties’ motions,
during the hearing, the parties each submitted to the
court financial affidavits, both of which were dated in
the latter part of June, 2012.3 In the plaintiff’s affidavit,
he attested that his gross and net income was $15,000
per month from employment, that he received $2009
per month from social security, and that his ‘‘Total Net
Income Per Month’’ was $17,009, which equals a gross
and net annual income of $204,108.4 (Emphasis added.)
In the defendant’s affidavit, she attested that, not includ-
ing alimony, her gross monthly income was $1200 from
employment and $853 from social security, and that her
net monthly income was $1775.31, which equals a net
annual income of $21,303.72.
In rendering its decision, the court specifically stated
in its oral decision that it had considered § 46b-82, that
the plaintiff’s ‘‘short, although very serious illness’’ did
not reflect a significant change in circumstances that
would warrant a downward modification and that his
‘‘gross receipts [were] still high enough that he [could]
afford to pay [the defendant] at least $8000 a month.’’
Although there is a distinction in this case between the
plaintiff’s gross receipts from his business and his gross
personal income, we are not persuaded that the court
was referring to the plaintiff’s business receipts rather
than the gross personal income as reflected on his finan-
cial affidavit.5
The plaintiff’s attested net annual income at the time
of the dissolution judgment was $245,000; his attested
net (and gross) annual income in June, 2012, was
$204,108—or approximately 17 percent less. We con-
clude that this evidence demonstrates that the court
acted within its discretion when it determined that the
plaintiff’s reduction in income and his illness did not
necessitate a finding of a substantial change in circum-
stances.6 See generally Lev v. Lev, 10 Conn. App. 570,
573, 524 A.2d 674 (1987) (concluding that 33 percent
reduction in income did not constitute substantial
change in circumstances).
Additionally, although the court made remarks con-
cerning the defendant’s continued care of the parties’
adult daughter, we are not persuaded that it based its
decision to deny the plaintiff’s motion for modification
of alimony on this fact. The court clearly stated that
it had considered § 46b-82, that the plaintiff’s ‘‘short,
although very serious illness’’ did not reflect a signifi-
cant change in circumstances that would warrant a
downward modification and that his ‘‘gross receipts
[were] still high enough that he [could] afford to pay
[the defendant] at least $8000 a month.’’ Although the
court could have more thoroughly discussed and set
forth the basis for its orders, its failure to do so does
not require us to conclude that the court acted improp-
erly or used an improper standard when considering
the plaintiff’s motion for modification.
II
The plaintiff next claims that the court erred in find-
ing him in contempt for failing to pay to the defendant
the full amount of his alimony obligation. Specifically,
he claims that the finding of contempt was an abuse
of discretion and that the facts found by the court to
support its contempt finding were clearly erroneous.
The plaintiff argues that he was unable to pay his ali-
mony obligation because of his health issues and
reduced income and that there was ‘‘no evidence to
support a finding that [he] was irresponsible and acted
outrageously.’’ He further argues that ‘‘[i]t is clear that
the trial court’s finding that [he] behaved ‘outrageously’
is based in no small part on the fact that the defendant
is caring for their 42 year old disabled daughter. Indeed,
the court takes [the plaintiff] to task for paying his
personal expenses ‘rather than [the defendant] who
provides sole custody and care of the 42 year old [dis-
abled] daughter.’ But . . . the court’s consideration of
the care of the disabled daughter was improper. Accord-
ingly, it was improper to hold the plaintiff in contempt
on the basis of the daughter’s care.’’ On the basis of
the record before us, we are not persuaded.
In consideration of this issue, we must determine
‘‘whether the trial court abused its discretion in issuing
. . . a judgment of contempt, which includes a review
of the trial court’s determination of whether the viola-
tion was wilful or excused by a good faith dispute or
misunderstanding.’’7 In re Leah S., 284 Conn. 685, 694,
935 A.2d 1021 (2007). Additionally, ‘‘[w]e review the
court’s factual findings in the context of a motion for
contempt to determine whether they are clearly errone-
ous.’’ (Internal quotation marks omitted.) Oldani v.
Oldani, 132 Conn. App. 609, 626, 34 A.3d 407 (2011).
Here, the plaintiff contends that, because he was
unable to pay the full amount of alimony due to his
illness, decreased working schedule and decreased
income, his failure to pay was not wilful or outrageous.
He also contends that the court based its finding on
the fact that the defendant is responsible for the care
of the parties’ disabled adult daughter, which, he argues,
was improper for the court to consider.
The court’s June 29, 2012 oral decision is quite short.
In it, the court stated in relevant part: ‘‘With regard to
the contempt, I do hold [the plaintiff] . . . in contempt.
I make a finding of contempt. I think that his refusal
or his choice not to pay [the defendant] was intentional
and rather outrageous. . . . The court finds that [the
plaintiff] made some life choices such that he put him-
self in the position that he’s in right now. . . . In the
last four years, despite court orders, [the plaintiff] has
acted irresponsibly, has incurred heavy debt. . . . It
appears to the [c]ourt that prior to October of 2011, he
made absolutely no attempt to put the brakes on his
spending. . . . [S]ince July, he’s made payments for all
personal reasons rather than pay [the defendant] who
provides sole custody and care of the [parties] daughter
. . . .’’ The court also found that the reduction in his
income did not justify his reduction in payments to
the defendant.
Essentially, the court found that the plaintiff had the
means to comply with the original alimony orders, and,
if he was having difficulty, it was the result of his own
doing. We again look to the plaintiff’s financial affida-
vits, which show a 17 percent reduction in his net
income since the dissolution judgment. The plaintiff
testified that at the time of the dissolution and shortly
thereafter, he typically worked four days per week and
‘‘maybe a half day on Friday,’’ and that he currently
works two and one-half to three and one-half days per
week, but that he also has hired an additional doctor
to work one day per week. The record further reveals
that he was giving his new wife substantial amounts of
money to pay the mortgage and expenses for their new
home, which was owned by his new wife. The record
reveals that the 4200 square foot home was located on
two acres of land in New Canaan, that it had an inground
swimming pool and cabana, three bedrooms and five
bathrooms, and that the plaintiff, at a ‘‘basic minimum,’’
was giving his new wife $14,500 per month to cover
‘‘carrying costs’’ of this home. Additionally, the plaintiff
chose, albeit with the agreement of the defendant, not to
sell the marital home, which also housed the plaintiff’s
medical office, after the judgment of dissolution, but
to maintain both that home and his new wife’s home.
The court’s consideration of facts such as these was
not improper. See Lev v. Lev, supra, 10 Conn. App. 573(‘‘court observed that the plaintiff’s financial hardship
resulted from, among other things, his remarriage and
his voluntary commitment of a substantial portion of
his net weekly income to pay the mortgage and taxes
on a home owned solely by his second wife’’).
After our careful review of the record, we conclude
that the trial court’s findings were not clearly erroneous
and that the court’s determination that the plaintiff wil-
fully failed to comply with the court’s alimony orders
was not an abuse of discretion.
III
The plaintiff also claims that the court abused its
discretion in awarding the defendant counsel fees for
prosecuting the contempt motion and for defending the
appeal.8 The plaintiff argues that there are only two
possible legal bases for awarding attorney’s fees to the
defendant for prosecuting her motion for contempt, one
being as a punitive measure under General Statutes
§ 46b-87 and the other being on the basis of need under
General Statutes § 46b-62, both of which, he contends,
are improper. The plaintiff also argues that the court
improperly awarded fees for defending the appeal
‘‘because there is no evidence that the plaintiff has the
ability to pay them.’’ Having concluded that the finding
of contempt was not improper, we need not consider
the plaintiff’s claim regarding the court’s award of fees
for the defendant’s prosecution of the contempt motion,
as it is within the court’s discretion to award attorney’s
fees as a punitive measure in contempt proceedings.
As to the plaintiff’s claim regarding appellate counsel
fees, we are not persuaded that the court abused its dis-
cretion.
‘‘[Section] 46b-62 vests in the trial court the discretion
to award attorney’s fees in dissolution proceedings.
. . . The criteria to be considered in determining such
an award include ‘the length of the marriage, the causes
for the . . . dissolution of the marriage . . . the age,
health, station, occupation, amount and sources of
income, vocational skills, employability, estate and
needs of each of the parties and the award, if any, which
the court may make pursuant to [General Statutes §]
46b-81 . . . .’ General Statutes § 46b-82 (a). We note
that ‘[i]n making an award of attorney’s fees under
§ 46b-82, [t]he court is not obligated to make express
findings on each of these statutory criteria.’ . . . More-
over, in divorce cases, it is not uncommon for the court
to award attorney’s fees regardless of the parties’ ability
to pay their own fees when the failure to award such
fees would undermine prior financial orders. . . . We
review the court’s awarding of attorney’s fees under
the abuse of discretion standard. The ultimate issue in
our review, therefore, is whether the court reasonably
could have concluded as it did.’’9 (Citations omitted;
footnote omitted.) Medvey v. Medvey, 98 Conn. App.
278, 287–88, 908 A.2d 1119 (2006); see also Taylor v.
Taylor, 119 Conn. App. 817, 826–27, 990 A.2d 882 (2010)
(affirming § 46b-62 award of attorney’s fees to defend
appeal involving postjudgment motions following disso-
lution judgment); Clement v. Clement, 34 Conn. App.
641, 648–49, 643 A.2d 874 (1994) (same).
In this case, the defendant specifically moved for
appellate attorney’s fees pursuant to § 46b-62. On
December 10 and 18, 2012, the court held a hearing on
the defendant’s motion. The plaintiff focuses on the
evidence that the plaintiff submitted in the form of a
new financial affidavit in which he averred that he had
a monthly gross income of $12,575.94 and a monthly
net income of only $6218.44, which included his social
security income. He argues that the evidence is ‘‘uncon-
troverted’’ that, among other things, ‘‘his monthly net
income is approximately $6200 . . . .’’ Although the
plaintiff’s new financial affidavit was before the court,
the court was not required to credit this evidence.
‘‘Credibility must be assessed . . . not by reading the
cold printed record, but by observing firsthand the wit-
ness’ conduct, demeanor and attitude. . . . An appel-
late court must defer to the trier of fact’s assessment
of credibility because [i]t is the [fact finder] . . . [who
has] an opportunity to observe the demeanor of the
witnesses and the parties; thus [the fact finder] is best
able to judge the credibility of the witnesses and to draw
necessary inferences therefrom. . . . Because the trial
court is the sole arbiter of witness credibility, it has
discretion to reject even uncontested evidence.’’ (Cita-
tion omitted; internal quotation marks omitted.) Blum
v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert.
denied, 289 Conn. 929, 958 A.2d 157 (2008).
In addition to the plaintiff’s new financial affidavit,
the court heard evidence that the plaintiff had resumed
his $8000 monthly alimony payments and that he had
begun making $5000 monthly payments on the arrear-
age, as the court had ordered in its June 12, 2012 oral
decision. The court also heard evidence that, after the
June, 2012 judgment, the plaintiff paid his attorney a
$25,000 retainer, he paid $10,000 to an appellate attor-
ney, and he paid at least $19,000 to another appellate
attorney. The plaintiff also acknowledges that he was
paying the student loans of one of the parties’ children,
although the record does not reveal any court order
requiring him to do so. In addition to this evidence, the
court also had before it the June, 2012 financial affidavit
of the plaintiff, wherein he had averred that he had an
annual gross and net income of more than $200,000. The
record also demonstrates that the defendant’s annual
income was minimal, that she had relocated from the
marital home because foreclosure proceedings had
been instituted and she was told that she had to vacate
the home by November, 2012, that she no longer was
employed, and that she now had the responsibility of
paying household expenses that used to be paid by the
plaintiff when she resided in the marital home and he
had his medical office there.
On the basis of these considerations, we conclude it
was not an abuse of discretion for the court to have
determined that the plaintiff should be responsible for
the defendant’s appellate attorney’s fees.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On the first day of the hearing on the pending motions, the plaintiff
testified that as of the date of that hearing, he had not filed his tax returns
for 2008, 2009, 2010, or 2011. He also testified that as of the date of the
earlier dissolution hearing, he had not filed his tax returns for 2003, 2004,
2006, and 2007.
2
The plaintiff also stated in his affidavit that the amount of his taxes was
‘‘undetermined,’’ but that he was ‘‘unable to pay’’ them.
3
We have been unable to locate in the record any affidavit the plaintiff
filed at the time he filed his motion for modification, or, thereafter, for the
period when he had his liver transplant and was recovering therefrom. The
affidavit the plaintiff filed with the court was dated June 20, 2012, and was
signed and sworn to by the plaintiff on June 21, 2012, several months after
his surgery and convalescence, and the plaintiff prepared his affidavit to
reflect his financial circumstances close to June 20, 2012. Although the
plaintiff generally testified to some extent about his income and expenses
during his surgery and convalescence, he did not provide the court with
comprehensive information in the form of a written financial statement, or
affidavit, for the specific period of his surgery and convalescence. The court
found, on the basis of the evidence offered by the plaintiff, that he did not
prove a substantial change in circumstances during that period.
4
See footnote 1 of this opinion.
5
Initially, the plaintiff claimed in his preliminary statement of the issues
that the court improperly used his gross income rather than his net income.
He voluntarily abandoned that issue, however, when he filed his appellate
brief. We note that the plaintiff had submitted a sworn financial affidavit
to the trial court that listed his gross and net income as one and the same,
and that the court, therefore, properly relied on this required certified docu-
ment that the plaintiff submitted to it.
6
We do not mean to imply that a 17 percent reduction in net income
could not be a substantial change in circumstances in all cases. Each case
must be considered on its own facts.
7
Generally, the first step in considering whether a court abused its discre-
tion in rendering a judgment of contempt is to determine ‘‘whether the
underlying order constituted a court order that was sufficiently clear and
unambiguous so as to support a judgment of contempt.’’ In re Leah S., 284
Conn. 685, 693, 935 A.2d 1021 (2007). Because there is no claim regarding
the clarity or unambiguity of the underlying order, and we conclude that it
is clear and unambiguous, we need not evaluate this step further.
8
The plaintiff does not contest the reasonableness of the attorney’s fees.
9
We also note that, in addition to the factors in § 46b-62 and § 46b-82,
litigation misconduct, including a finding of contempt, also may be consid-
ered in determining an award of attorney’s fees under § 46b-62. See Gil v.
Gil, 110 Conn. App. 798, 808, 956 A.2d 593 (2008).