Bauer v. Bauer , 173 Conn. App. 595 ( 2017 )

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MARY L. BAUER v. JEFFREY W. BAUER
(AC 38165)
Alvord, Sheldon and Bear, Js.
Argued January 10—officially released June 6, 2017
(Appeal from Superior Court, judicial district of
Hartford, Olear, J. [dissolution judgment]; Ficeto, J.
[motion for modification; motion for contempt;
articulation])
James M. Ruel, with whom, on the brief, was Joshua
Feldman, for the appellant (plaintiff).
Steven R. Dembo, with whom, on the brief, were
Caitlin E. Kozloski and P. Joanne Burgh, for the appel-
lee (defendant).
Opinion
PER CURIAM. The plaintiff, Mary L. Bauer, appeals
from the postjudgment rulings of the trial court denying
her motion for contempt and granting the motion of
the defendant, Jeffrey W. Bauer, for modification of his
alimony obligation.1 The plaintiff claims that the court
improperly (1) determined that the defendant’s failure
to pay court-ordered alimony was not wilful, (2) failed
to conclude that the defendant’s conduct was culpable
when considering his motion for modification, and (3)
failed to admit certain evidence that she offered relative
to the criteria set forth in General Statutes § 46b-82.2
We affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. The parties were married on Octo-
ber 20, 1985; their son was born in 1994. On December
18, 2008, the plaintiff filed a marital dissolution action
on the ground that the marriage had broken down irre-
trievably. On May 23, 2011, the court, Olear, J., rendered
judgment dissolving the parties’ marriage. The judg-
ment incorporated by reference a ‘‘divorce settlement
agreement’’ (agreement) dated May 20, 2011.
Section 5.1 of the agreement provides in relevant part:
‘‘[The defendant] shall pay to [the plaintiff] alimony of
$10,417 per month, payable semimonthly in accord with
his employment pay schedule. . . . Alimony in this sec-
tion 5 is based on annual gross income of [the defen-
dant] of $436,000 and $32,500 for [the plaintiff].’’3
Section 5.7 of the agreement provides that ‘‘[t]he
amount of all alimony in this section 5 shall be modifi-
able upon a substantial change in the circumstances of
the parties.’’ In addition to other provisions, the
agreement included an attached exhibit B, which set
forth the parties’ assets at the time of the dissolution
and the equal distribution of those assets.
Since 2002, the defendant had been employed by
Citco Fund Services as its ‘‘global head of connectivity.’’
On or about December 11, 2013, without any prior notifi-
cation, he was informed that his employment was termi-
nated as of that date because of a restructuring of his
department. His employer provided severance pay from
the date of his termination until September 15, 2014. The
defendant continued to pay his court-ordered alimony
until he no longer received his severance pay.
On August 1, 2014, the defendant filed a postjudgment
motion for the modification of his alimony obligation
on the ground that his employment had terminated and
his severance pay was to end in approximately six
weeks. He stopped paying alimony when his severance
pay ended. On October 15, 2014, the plaintiff filed a
postjudgment motion for contempt against the defen-
dant, alleging nonpayment of the court-ordered alimony
payments; she amended her motion on February 23,
2015.
The court scheduled a hearing on the parties’
motions. On December 18, 2014, and March 2, 2015, the
court, Ficeto, J., heard testimony from the plaintiff and
the defendant and admitted forty-nine full exhibits. Fol-
lowing the hearing, the parties submitted briefs summa-
rizing their respective positions. On April 16, 2015, the
court issued its memorandum of decision in which it
denied the plaintiff’s motion for contempt and reduced
the defendant’s monthly payment of alimony to $2500.
The plaintiff filed a motion for reargument and reconsid-
eration of the court’s decision, which was denied by
the court without discussion on July 1, 2015. This
appeal followed.
I
The plaintiff’s first claim is that ‘‘[t]he trial court’s
determination that the defendant was not in contempt
of court, despite the admission of clear and convincing
evidence4 that his failure to pay court-ordered alimony
to the plaintiff was wilful, was an abuse of discretion.’’
Specifically, she argues that the defendant admitted
that he did not pay alimony from September, 2014,
through the date of the hearing and that the evidence
clearly demonstrated that his noncompliance was wil-
ful. We are not persuaded.
‘‘A finding of contempt is a question of fact, and our
standard of review is to determine whether the court
abused its discretion in failing to find that the actions
or inactions of the [defendant] were in contempt of a
court order. . . . To constitute contempt, a party’s
conduct must be wilful. . . . Noncompliance alone will
not support a judgment of contempt. . . . A finding
that a person is or is not in contempt of a court order
depends on the facts and circumstances surrounding
the conduct. The fact that an order has not been com-
plied with fully does not dictate that a finding of con-
tempt must enter. . . . [It] is within the sound
discretion of the court to deny a claim for contempt
when there is an adequate factual basis to explain the
failure to honor the court’s order.’’ (Citations omitted;
internal quotation marks omitted.) Auerbach v. Auer-
bach, 113 Conn. App. 318, 326, 966 A.2d 292, cert. denied,
292 Conn. 901, 971 A.2d 40 (2009).
The inability of an obligor to pay court-ordered ali-
mony, without fault on his part, is a good defense to a
contempt motion. The burden of proving an inability
to pay rests with the obligor. Whether the obligor has
established his inability to pay by credible evidence is
a question of fact. The obligor must establish that he
cannot comply, or was unable to do so. It is then within
the sound discretion of the court to deny a claim of
contempt when there is an adequate factual basis to
explain the failure to pay. Afkari-Ahmadi v. Fotovat-
Ahmadi, 294 Conn. 384, 397–98, 985 A.2d 319 (2009).
‘‘[The] trial court is endowed with broad discretion
in domestic relations cases. . . . As an appellate court,
we do not review the evidence to determine whether
a conclusion different from the one reached could have
been reached. . . . The purpose of our analysis is to
decide whether the trial court’s conclusion was reason-
able. Because the trial court has the advantage of
reviewing and assessing the demeanor, attitude and
credibility of the witnesses, it is better equipped than
we are to assess the circumstances surrounding the
family proceeding before it. . . . Every reasonable pre-
sumption will be made in favor of the court’s proper
exercise of discretion.’’ (Citations omitted; internal quo-
tation marks omitted.) Meehan v. Meehan, 40 Conn.
App. 107, 110–11, 669 A.2d 616, cert. denied, 236 Conn.
915, 673 A.2d 1142 (1996).
In reviewing the propriety of the court’s decision to
deny the plaintiff’s motion for contempt, we first review
the factual findings of the court that led to its determina-
tion. The clearly erroneous standard is the well settled
standard for reviewing a trial court’s factual findings.
‘‘A factual finding is clearly erroneous when it is not
supported by any evidence in the record or when there
is evidence to support it, but the reviewing court is left
with the definite and firm conviction that a mistake
has been made.’’ (Internal quotation marks omitted.)
Mettler v. Mettler, 165 Conn. App. 829, 836, 140 A.3d
370 (2016).
In the present case, the court made the following
factual determinations: (1) the defendant was involun-
tarily separated from his employment; (2) the separa-
tion came ‘‘as a surprise’’ and he had no prior
notification; (3) the defendant continued to pay his
court-ordered alimony until he no longer received his
severance pay; (4) the defendant has been ‘‘vigilant,’’
but unsuccessful, in his attempts to secure permanent
employment; (5) the defendant formed a one person
limited liability company to provide per diem services
as a consultant to a software company and is paid $800
per day on the days that he works; (6) the contract with
the software company has expired, but the defendant
continues to provide services under the same contrac-
tual terms on a per diem basis; (7) the limited liability
company receives 1099 forms for its income and is
responsible for the payment of all taxes and expenses;
(8) the defendant receives no vacation pay, holiday
pay or any other benefits; (9) the defendant’s average
weekly net income is $1913; (10) following the termina-
tion of his employment, the defendant has invaded his
retirement funds in the amount of $45,000 to pay his
living expenses; (11) the defendant has paid expenses
for property he purchased in Massachusetts prior to the
termination of his employment from marital property
awarded to him in the dissolution judgment; (12) the
defendant paid his alimony obligation until he no longer
had a salary or severance pay from which he could
make those payments; and (13) there was no evidence
to suggest that the defendant’s expenditures prior and
subsequent to September, 2014, the date his severance
pay ended, were made from any funds other than his
share of the marital estate in the dissolution judgment.
The testimony of the defendant at the hearing, which
the court credited, supports the factual findings of the
court. The agreement expressly provided that the
amount of alimony was ‘‘based on annual gross income
. . . of $436,000’’ for the defendant and $32,500 for the
plaintiff. After his severance pay ended, the defendant’s
weekly net income was reduced to $1913, which he
earned as an independent contractor. Given these cir-
cumstances, and because there was an adequate factual
basis presented to explain the defendant’s failure to
continue payment of his alimony obligation, it was
within the trial court’s discretion to deny the plaintiff’s
motion for contempt.
II
The plaintiff’s next claim is that the ‘‘court’s determi-
nation that the defendant met his burden to prove a
substantial change of circumstances sufficient to justify
a modification of alimony was clearly erroneous due
to the evidence admitted [that] demonstrated [his] cul-
pable conduct.’’ Relying on the cases of Olson v.
Mohammadu, 310 Conn. 665, 81 A.3d 215 (2013), San-
chione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977),
and Mekrut v. Suits, 147 Conn. App. 794, 84 A.3d 466
(2014), the plaintiff argues that the defendant’s ‘‘extrav-
agant spending,’’ which took place after the loss of his
employment, constituted ‘‘culpable conduct’’ that did
not excuse his claimed ‘‘inability to pay’’ his alimony
obligation. In essence, the plaintiff’s position is that the
defendant’s alleged substantial change in circum-
stances was brought about by his own ‘‘recklessness
. . . while unemployed,’’ and, accordingly, the court
should have denied his motion for modification of
alimony.
As previously noted, ‘‘[t]he well settled standard of
review in domestic relations cases is that this court will
not disturb trial court orders unless the trial court has
abused its legal discretion or its findings have no reason-
able basis in the facts.’’ (Internal quotation marks omit-
ted.) Malpeso v. Malpeso, 165 Conn. App. 151, 175, 138
A.3d 1069 (2016). The present case involves the post-
judgment modification of a support order. Modification
of alimony is governed by General Statutes § 46b-86,
subsection (a) of which provides in relevant part:
‘‘Unless and to the extent that the decree precludes
modification . . . an order for alimony . . . may, at
any time thereafter, be . . . altered or modified by the
court upon a showing of a substantial change in the
circumstances of either party . . . .’’ General Statutes
§ 46b-86 (a). ‘‘As the party seeking modification, the
defendant had the burden of proving a substantial
change in circumstances. . . .
‘‘We previously have explained the specific method
by which a trial court should proceed with a motion
brought pursuant to § 46b-86 (a). When presented with
a motion for modification, a court must first determine
whether there has been a substantial change in the
financial circumstances of one or both of the parties.
. . . Second, if the court finds a substantial change in
circumstances, it may properly consider the motion
and, on the basis of the [General Statutes] § 46b-82
criteria, make an order for modification. . . . The
court has the authority to issue a modification only if
it conforms the order to the distinct and definite
changes in the circumstances of the parties. . . . Sim-
ply put, before the court may modify an alimony award
pursuant to § 46b-86, it must make a threshold finding
of a substantial change in circumstances with respect
to one of the parties.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Schade v.
Schade, 110 Conn. App. 57, 62–63, 954 A.2d 846, cert.
denied, 289 Conn. 945, 959 A.2d 1009 (2008). ‘‘In addi-
tion, [w]e recognize that a party seeking modification
of financial orders incident to a marital dissolution judg-
ment must clearly and definitely establish an uncontem-
plated substantial change of the circumstances of either
party which demonstrates that continuation of the prior
order would be unfair and improper.’’ (Internal quota-
tion marks omitted.) Fulton v. Fulton, 156 Conn. App.
739, 746, 116 A.3d 311 (2015).
The three cases cited by the plaintiff in support of her
claim address the conduct of obligors that precluded a
determination that there had been a substantial change
in circumstances. In Sanchione v. Sanchione, supra,
173 Conn. 407, our Supreme Court held: ‘‘ ‘Inability to
pay’ does not automatically entitle a party to a decrease
of an alimony order. It must be excusable and not
brought about by the defendant’s own fault.’’ Id. Factors
to be considered include ‘‘whether his inability to pay
was a result of his own extravagance, neglect, miscon-
duct or other unacceptable reason . . . .’’ Id. Olson
and Mekrut further provide that ‘‘if a party’s voluntary
action gives rise to the alleged substantial change in
circumstances warranting modification, the [trial] court
must assess the motivations underlying the voluntary
conduct in order to determine whether there is culpable
conduct foreclosing a threshold determination of a sub-
stantial change in circumstances.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Olson v.
Mohammadu, supra, 310 Conn. 684; Mekrut v. Suits,
supra, 147 Conn. App. 802. The trial court concluded,
and we agree, that the holdings of those cases do not
apply under the circumstances of this case.
As noted by the trial court, the defendant’s loss of
employment was involuntary and totally unanticipated.
The defendant continued to pay his alimony obligation
until his severance pay ended. At that point, the defen-
dant’s income was reduced from an annual gross
income of approximately $446,000, to an average net
weekly income of $1913. Although the defendant had
been ‘‘vigilant in his attempts [in] seeking employment,’’
as found by the court, his efforts had not been success-
ful. The defendant had withdrawn moneys from his
retirement account, which had been awarded to him
in the dissolution judgment, in order to pay his living
expenses. When questioned extensively with respect to
the moneys spent on his Massachusetts property, the
defendant testified that he used the proceeds from the
sale of the marital residence and his savings that he
received as part of the distribution of the marital assets.
The court found this testimony credible, for it found that
‘‘[t]here was no evidence to suggest that the defendant’s
expenditures were from anything other than his share
of the marital estate.’’
There is no authority for the plaintiff’s claim that
the defendant was obligated to save money from his
severance pay or to liquidate assets that he had acquired
at the time of the dissolution judgment in order to
continue the payment of his alimony obligation.5 All of
the court’s findings are supported by the record. The
court did not find the defendant’s conduct to be culpa-
ble, and the plaintiff has failed to demonstrate other-
wise. As such, we cannot conclude that the court
improperly determined that the defendant proved that
he had suffered a substantial change in circumstances
when he was terminated from his employment.
III
The plaintiff’s final claim is that the ‘‘court’s refusal
to admit evidence relevant to the second prong of the
modification analysis was clearly erroneous and war-
rants a new trial.’’ The plaintiff argues that even if there
was a substantial change in circumstances, the court
then had to consider ‘‘without limitation’’ all of the
factors set forth in § 46b-82 in determining the amount,
if any, of the modification.6 According to the plaintiff,
the court was required to consider all of the defendant’s
assets and all of his expenditures from the moment he
was told that his employment was being terminated
because he ‘‘was obligated to budget the entirety of his
financial resources so as to meet his alimony obliga-
tion.’’ The plaintiff requests that we ‘‘remand this matter
to the trial court for a new hearing, at which the trial
court should admit credible testimony and evidence
with regard to the defendant’s ‘station,’ which the court
must consider and analyze in an alimony modification
context . . . .’’7
The plaintiff’s claim is an evidentiary claim. ‘‘The trial
court’s ruling on the admissibility of evidence is entitled
to great deference. . . . [T]he trial court has broad dis-
cretion in ruling on the admissibility . . . of evidence
. . . [and its] ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.
. . . In addition, [b]efore a party is entitled to a new
trial because of an erroneous evidentiary ruling, he or
she has the burden of demonstrating that the error was
harmful. . . . The harmless error standard in a civil
case is whether the improper ruling would likely affect
the result. . . . When judging the likely effect of such
a trial court ruling, the reviewing court is constrained
to make its determination on the basis of the printed
record before it. . . . In the absence of a showing that
the [excluded] evidence would have affected the final
result, its [exclusion] is harmless.’’ (Internal quotation
marks omitted.) Brown v. Brown, 130 Conn. App. 522,
531–32, 24 A.3d 1261 (2011).
The plaintiff does not identify what evidence she
offered that the court ruled to be inadmissible. There
is no reference to exhibits marked for identification or
the offer of proof made to the court at the time she
sought their admission.8 She simply makes broad state-
ments about the defendant’s ‘‘nonessential expenses,’’
the ‘‘moneys expended to improve the [Massachusetts]
home,’’ and the defendant’s ‘‘extravagant vacations,’’
and claims that the court should have admitted such
evidence to show the defendant’s ‘‘station while unem-
ployed.’’ Our review of the transcripts of the hearing
reveals that the plaintiff made these same arguments
before the court and that she was afforded considerable
latitude in questioning the defendant about his expendi-
tures. Moreover, the court admitted, frequently over the
defendant’s objection, thirty exhibits submitted by the
plaintiff. Included among those exhibits were the defen-
dant’s credit card statements, bank statements, and a
construction expense sheet for the Massachusetts prop-
erty. The plaintiff provides no explanation as to why
the excluded exhibits provided different and relevant
information from the admitted exhibits, or how the
admission of the excluded exhibits would have affected
the result in this case. Accordingly, we cannot conclude
that the court abused its discretion in its evidentiary
rulings.
The judgment is affirmed.
1
The court also granted the defendant’s postjudgment motion for modifi-
cation of the educational support order for the parties’ twenty year old son,
and denied the plaintiff’s postjudgment motion for payment of legal fees,
but the plaintiff has not challenged those rulings in this appeal.
2
General Statutes § 46b-82 (a) provides in relevant part: ‘‘In 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, [and the] estate and needs of each of the parties . . . .’’
3
Section 5.4 of the agreement provides for additional alimony based on
the defendant’s receipt of ‘‘gross bonus monies.’’
4
‘‘Contempts of court may . . . be classified as either direct or indirect,
the test being whether the contempt is offered within or outside the presence
of the court.’’ (Internal quotation marks omitted.) Brody v. Brody, 315 Conn.
300, 317, 105 A.3d 887 (2015). A refusal to comply with a court-ordered
payment of alimony is an indirect contempt of court because it occurs
outside the presence of the trial court. See id. ‘‘[F]indings of indirect civil
contempt must be supported by clear and convincing evidence.’’ Id., 302–303.
5
The trial court correctly noted that it could not order a party to sell or
deplete assets awarded at the time of the dissolution in order to satisfy an
alimony award. ‘‘[T]he assignment of property may only be made at the
time of the marital dissolution and it is not thereafter subject to modification
as are periodic orders. . . . Dispositions of property made at the time of
the decree under [General Statutes] § 46b-81 are not subject to modification,
even if there should be a change of circumstances.’’ (Citation omitted;
internal quotation marks omitted.) Rosato v. Rosato, 77 Conn. App. 9, 14,
822 A.2d 974 (2003).
6
We note that the trial court ‘‘need not . . . make explicit reference to
the statutory criteria [set forth in § 46b-82] that it considered in making its
decision or make express findings as to each statutory factor.’’ (Internal
quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 539,
752 A.2d 978 (1998). ‘‘[T]he trial court has discretion to determine the
weight to give to each of the criteria in light of the specific facts and
circumstances of the case before it.’’ Simms v. Simms, 283 Conn. 494, 509
n.16, 927 A.2d 894 (2007). ‘‘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.) Brown v. Brown, 130 Conn. App. 522, 527, 24 A.3d 1261 (2011).
7
We go back to a 1988 decision of our Supreme Court to find a fulsome
discussion of ‘‘station.’’ ‘‘The most pertinent definition of ‘station’ in Webster,
Third New International Dictionary, is ‘social standing.’ A person’s social
standing is strongly correlated to his standard of living, although other
factors may be important as well. Our courts have frequently considered
the standard of living enjoyed by spouses in determining alimony or in
dividing marital property.’’ Blake v. Blake, 207 Conn. 217, 232, 541 A.2d
1201 (1988).
8
Practice Book § 67-4 (d) (3) provides: ‘‘When error is claimed in any
evidentiary ruling in a court or jury case, the brief or appendix shall include
a verbatim statement of the following: the question or offer of exhibit; the
objection and the ground on which it was based; the ground on which the
evidence was claimed to be admissible; the answer, if any; and the ruling.’’