O'Neill v. O'Neill ( 2021 )

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JAMIE E. O’NEILL v. ANTHONY J. O’NEILL
(AC 44070)
Bright, C. J., and Clark and Eveleigh, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and making certain orders regard-
ing the parties’ finances and custody of the parties’ five minor chil-
dren. Held:
1. The defendant could not prevail on his claim that the trial court abused
its discretion in awarding periodic alimony and child support in amounts
that he claimed would far exceed his net income: the support orders
would not exceed his net income on the basis of the trial court’s finding
as to the defendant’s net earning capacity, which amount was supported
by certain evidence in the record; moreover, the trial court found the
defendant’s testimony about his finances to be not credible, and,
although the summary prepared by the defendant’s accountant indicated
a lower figure for his average net income, the court was not required
to base its orders on that figure as the accuracy of that figure as a
predictor of the defendant’s earning capacity was suspect, given that it
reduced the defendant’s net income by the penalties and interest he
incurred for filing his tax returns late.
2. The trial court did not abuse its discretion in ordering the defendant to
pay increased alimony once the plaintiff vacated the marital residence:
although the plaintiff had no mortgage or rent expense while she
remained in the marital residence, that residence was the subject of
a foreclosure action and the plaintiff would incur additional housing
expenses once she relocated.
3. The trial court did not abuse its discretion in precluding modification of
the alimony award on the basis of the plaintiff’s cohabitation with other
adults: the court had the authority to award nonmodifiable alimony
under the applicable statute (§ 46b-86), its decision to do so was sup-
ported by the record given the plaintiff’s arrangement to provide care
for her elderly father, and its order did not conflict with the cohabitation
subsection, § 46b-86 (b).
4. The defendant’s claim that the trial court improperly awarded the marital
residence to the plaintiff without specifying that she would take the
residence subject to any liens on the property was without merit: the
court specified that the plaintiff was entitled to ‘‘any net equity’’ following
the sale of the marital residence, which established that the plaintiff
would be entitled only to the proceeds of the sale of the property in
excess of claims or liens against it.
5. The trial court did not abuse its discretion in ordering that the plaintiff
could relocate to a reasonable distance from Wilton or New York with
the minor children: the court was not required to consider and apply
the factors set forth in the statute (§ 46b-56d) governing postjudgment
motions to relocate with a minor child, where, as here, the relocation
matter was decided in the initial judgment dissolving the parties’ mar-
riage; moreover, the defendant did not claim that the trial court failed
to consider the best interests of the children under the applicable statute
(§ 46b-56 (c)), and evidence in the record supported the court’s conclu-
sion on that issue.
6. The defendant could not prevail on his claim that the trial court’s order
was ambiguous as to when alimony terminated: the order clearly stated
that alimony terminated ten years after the judgment of dissolution or
when the plaintiff died or remarried.
Submitted on briefs September 14—officially released December 7, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield and tried to the court, Rodriguez, J.;
judgment dissolving the marriage and granting certain
other relief, from which the defendant appealed to this
court. Affirmed.
Charles T. Busek submitted a brief for the appellant
(defendant).
Jonathan E. Von Kohorn and Tara L. Von Kohorn
submitted a brief for the appellee (plaintiff).
Opinion
BRIGHT, C. J. The defendant, Anthony J. O’Neill,
appeals from the judgment of the trial court dissolving
his marriage to the plaintiff, Jamie E. O’Neill. On appeal,
the defendant claims that the court abused its discretion
by (1) ordering him to pay periodic alimony and child
support in amounts that exceed his net income, (2)
ordering that his alimony obligation would increase to
$1000 per week after the plaintiff vacates the marital
residence, (3) precluding modification of the alimony
award on the basis of the plaintiff’s cohabitation with
other adults, (4) awarding the plaintiff the marital resi-
dence without specifying that the plaintiff takes the
property subject to all mortgages and liens of record,
(5) granting the plaintiff’s request to relocate with the
minor children, and (6) failing to order that alimony
will terminate ten years after the date of the judgment.
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff and the defendant were
married in Greenwich in 2003, and have five minor
children together. While married, the parties resided in
Wilton, and their children attended the Wilton public
schools. In 2018, the plaintiff commenced an action to
dissolve the parties’ marriage, and the court, Gould, J.,
accepted the parties’ agreement providing, inter alia,
that the defendant would pay pendente lite child sup-
port in the amount of $477 each week and pendente
lite alimony in the amount of $288 each week. On
December 4, 2019, the case was tried to the court, Rodri-
guez, J., and both parties testified at trial. On February
21, 2020, the court issued its memorandum of decision
dissolving the parties’ marriage.
In its decision, the court made the following findings
and issued the following orders. ‘‘The defendant’s
employment essentially consisted of the overseeing of
residential construction and remodeling. The plaintiff
worked full-time as a secretary prior to the birth of the
parties’ five children. Although [the defendant] claims
that [the plaintiff] is capable of presently earning an
annual income equal to about $38,000, the court is not
persuaded and discredits his testimony with respect to
this claim.
‘‘Although [the defendant’s] testimony and financial
affidavits reference no earned income whatsoever, the
court finds that he has an imputed earning capacity of
at least $101,000 per year. This is largely based upon
tax returns for the years 2013 through 2018. The exis-
tence of other assets which the defendant has or had
in Ireland [suggests] that the defendant may very well
have access to additional income from family members
outside of the United States. However, based on the
evidence presented, the court is not considering any
possible assets of [the defendant] in Ireland in making
its finding of his imputed earning capacity.
‘‘The court credits [the plaintiff’s] testimony that with
help from her family and with part-time employment
and child support payments from [the defendant], she
will be able to continue to reside in the marital residence
and that she will be able to sell the residence without
interference from [the defendant]. She has been receiv-
ing child support in the amount of $477 a week and, at
the time of trial, [the defendant] was current in his child
support payments. Most of the household expenses are
paid by [the defendant] who manages construction job-
sites. [The plaintiff] would like to leave the family resi-
dence as soon as possible but not until the foreclosure
proceedings are resolved. . . .
‘‘The marital residence . . . in Wilton . . . was pur-
chased in May or June of 2004 and is the subject of a
foreclosure proceeding. There were extensive renova-
tions and improvements made to the property by [the
defendant]. . . . [The plaintiff] is not named as a defen-
dant in the foreclosure proceedings. Although the court
ordered on June 6, 2019, that the property be sold,
primarily due to the lack of cooperation by [the defen-
dant], the property has not been sold. The court orders
that [the plaintiff] shall exercise final decision making
regarding any options in regards to the sale in light of
the pending foreclosure action. So . . . the property
is ordered sold and the net proceeds realized from the
sale, if any, are awarded to [the plaintiff].
‘‘[The defendant’s] request that the court compel [the
plaintiff] and the children to continue to reside at the
marital home in Wilton . . . is rejected. Such a request
is unwarranted, unreasonable and leads the court to
conclude that [the defendant] has economic resources
available to him which he has not disclosed to the court.
However, and as previously noted, [the defendant]
clearly has an earning capacity of $101,000, and the
court has not considered this conclusion in its finding
of [the defendant’s] earning capacity. He is in good
health and he is a self-employed individual. [The plain-
tiff], originally from Long Island, New York, is granted
her request to relocate her residence to a reasonable
distance from Wilton or New York for necessary hous-
ing opportunities especially given the lack of antici-
pated reliable support from [the defendant].
‘‘A stipulated child support guidelines worksheet has
been reviewed by the court . . . and it does not corre-
spond precisely to the financial affidavit of the defen-
dant . . . which he submitted at the commencement
of trial. However, [the defendant] consents to utilizing
these child support guidelines with respect to his
income notwithstanding that the most recent financial
affidavits referenced . . . no earned income whatso-
ever.
‘‘In addition to the five minor children of this marriage
residing with [the plaintiff] at the marital residence . . .
the plaintiff’s father is also residing at the marital resi-
dence. [The plaintiff], who is in good health, provides
care for her eighty-four year old father. Her father
assists her financially with some of the household
expenses. She is committed to continuing the care she
provides for her father in the foreseeable future. Also,
[the plaintiff] is fortunate to have childcare help avail-
able to her from her children who babysit for the
younger ones when necessary. . . .
‘‘There is a temporary order that [the plaintiff] and
[the defendant] have joint legal custody with primary
physical residence to [the plaintiff]. The court makes
said temporary order a permanent order in its judgment
herein and finds that it is in the best interests of the
children that there be joint legal custody and that the
primary residence continue to be with [the plaintiff].
She shall have final decision making over day-to-day
decisions concerning the minor children.
***
‘‘Child support is ordered to continue in the amount
of $477 per week. The parties shall share any unreim-
bursed medical/dental expenses, including braces, and
qualified work-related childcare expenses with [the
defendant] paying 75 percent and [the plaintiff] paying
25 percent. . . .
‘‘The court orders that [the defendant] pay [the plain-
tiff] periodic alimony in the amount of $1000 per week
for a period of ten years from the date of the judgment
of dissolution. However, payments shall begin when
[the plaintiff] vacates the marital residence . . . . Until
[the plaintiff] vacates the marital residence, the current
pendente lite order shall continue in effect so that [the
defendant] continues to pay $280 per week in order to
cover expenses of gas, oil, electric and landscaping
as well as cell phones for the children. Alimony shall
terminate upon the death or remarriage of [the plaintiff].
There shall be no change as to alimony based upon
cohabitation by [the plaintiff] because it is expected
that she will continue to live with other adults who will
help her with her living expenses. . . .
‘‘[The plaintiff] is awarded the marital residence free
and clear of any claim by [the defendant]. [The plaintiff]
shall sell the property and take control over the sale
process in order to attempt to protect any net equity
notwithstanding the foreclosure action. [The defen-
dant] is ordered to cooperate in any sale or foreclosure
process to facilitate such a sale. Any net equity shall
remain the sole property of [the plaintiff]. [The plaintiff]
shall continue to have sole possession and exclusive
use of the property.’’
On March 9, 2020, the defendant filed a motion to
open and reargue the decision, which the court denied
on March 17, 2020. This appeal followed. Additional
facts will be set forth as necessary.
We first set forth the standard of review for all of
the defendant’s claims on appeal. ‘‘An appellate court
will not disturb a trial court’s orders in domestic rela-
tions 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 presented. . . . In determin-
ing whether a trial court has abused its broad discretion
in domestic relations matters, we allow every reason-
able presumption in favor of the correctness of its
action. . . . Appellate review of a trial court’s findings
of fact is governed by the clearly erroneous standard
of review. The trial court’s findings are binding upon
this court unless they are clearly erroneous in light of
the evidence and the pleadings in the record as a whole.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Therefore, to conclude that the trial court abused
its discretion, we must find that the court either incor-
rectly applied the law or could not reasonably conclude
as it did.’’ (Internal quotation marks omitted.) Emerick
v. Emerick, 170 Conn. App. 368, 378, 154 A.3d 1069,
cert. denied, 327 Conn. 922, 171 A.3d 60 (2017).
I
The defendant first claims that the court abused its
discretion in awarding periodic alimony and child sup-
port in amounts that ‘‘would far exceed the net income
resulting from $101,000 of gross earning capacity.’’ The
following additional facts are relevant to the defen-
dant’s claim.
The defendant filed his financial affidavit in Novem-
ber, 2019, stating that he had no income. At trial, he
testified that he is a self-employed building contractor
engaging in residential construction and remodeling
through his limited liability company, Anthony O’Neill,
LLC. He explained that he was working ‘‘[p]retty small’’
jobs for which he was getting paid ‘‘[v]ery small
amounts . . . .’’ He also testified that he has ‘‘bids out
for probably like 7 or $800,000 worth of work. . . . So
the profit on that would be maybe a $100,000. It all
depends, maybe nothing.’’
During the marriage, the parties filed their tax returns
separately, but the defendant failed to file his tax
returns for the years 2013 through 2017, until January,
2019, which was after the plaintiff initiated the divorce
proceedings. Consequently, he incurred penalties and
interest in connection with his delinquent tax returns.
At trial, the court admitted into evidence the defen-
dant’s federal tax returns for the years 2013 through
2018, and a two page summary prepared by the defen-
dant’s accountant setting forth his state and federal tax
liabilities, his net business income, and his personal net
income for those years. According to the summary,
during that six year period, the defendant’s average net
income was $63,477.33 and his combined federal and
state tax liability was $222,950, which included penal-
ties and interest.
The plaintiff’s counsel questioned the defendant
regarding his net income in the following exchange:
‘‘Q. . . . So, sir, you’d agree with me, wouldn’t you,
that if you were to make a representation about what
your net income is, that . . . traditionally most people
would think that would include your gross income less
taxes. Is that—I just want to make sure we’re using the
same language.
‘‘A. Yes.
‘‘Q. Okay. And that if we were going to reduce that
by one, two, three, four, five, six years of penalties and
interest, that that would bring down your net income
beyond what normal—normally someone would think
of as what that net income would represent. Is that fair
to say?
‘‘A. Not really, no, because it depends when you’ve
paid your taxes. If you’ve paid your tax on time you
wouldn’t have the penalties and interest.
‘‘Q. Right, but you didn’t, though.
‘‘A. I know, but I’m just saying that you said that in
a normal situation.’’
In its memorandum of decision, the court found that
the defendant has an earning capacity of $101,000 but
failed to specify whether that figure constituted the
defendant’s net or gross earning capacity. After this
appeal was submitted on the briefs, this court ordered
the trial court, pursuant to Practice Book § 60-5,1 to
articulate whether its finding as to the defendant’s earn-
ing capacity constituted the defendant’s net or gross
earning capacity and to specify the evidentiary basis
for its finding.
On October 1, 2021, the court issued an articulation,
clarifying that, on the basis of the defendant’s tax
returns, it found that the defendant has a net earning
capacity of $101,000. The court also explained that the
defendant’s ‘‘testimony regarding his income was eva-
sive and somewhat not credible. Specifically, his testi-
mony about his income and his financial affidavit dated
November 26, 2019, that he had no income for the year
2019 are not credible. His responses regarding year to
date earnings for 2019 are not credible, especially since
his gross receipts in the year 2017 were $204,000. . . .
‘‘[The defendant] also claimed to have bids for about
$800,000 worth of work which would realize a profit
of $100,000 . . . and has basically owned his own busi-
ness for about twenty-five years.’’
In light of the court’s articulation specifying that it
found the defendant’s net earning capacity is $101,000,
the defendant’s claim that the total amount due under
the support orders would exceed his net income neces-
sarily fails. Insofar as he is claiming that the court’s
finding as to his net earning capacity is clearly errone-
ous, we disagree.
‘‘It is well established that the trial court may under
appropriate circumstances in a marital dissolution pro-
ceeding base financial awards . . . on the earning
capacity of the parties rather than on actual earned
income. . . . Earning capacity, in this context, is not
an amount which a person can theoretically earn, nor
is it confined to actual income, but rather it is an amount
which a person can realistically be expected to earn
. . . .
‘‘Factors that a court may consider in calculating a
party’s earning capacity include evidence of that party’s
previous earnings . . . [l]ifestyle and personal
expenses . . . and whether the defendant has wilfully
restricted his earning capacity to avoid support obliga-
tions, although we never have required a finding of
bad faith before imputing income based on earning
capacity. . . .
‘‘Whether 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.’’ (Citations
omitted; internal quotation marks omitted.) Buxen-
baum v. Jones, 189 Conn. App. 790, 799–801, 209 A.3d
664 (2019).
In the present case, the court based its support orders
on the defendant’s net earning capacity, which it deter-
mined was $101,000. This finding is supported by the
evidence. First, the defendant’s tax returns and the sum-
mary prepared by his accountant substantiate a net
earning capacity of $101,000 per year. Although the
defendant relies on the summary prepared by his
accountant representing that his average net income
between 2013 and 2018 was $63,477.33, the court was
not required to base its orders on that figure. See Buxen-
baum v. Jones, supra, 189 Conn. App. 799 (‘‘[i]t is well
established that the trial court may . . . base financial
awards . . . on the earning capacity of the parties
rather than on actual earned income’’). In fact, the accu-
racy of the net income in the accountant’s summary as
a predictor of earning capacity is suspect, given that
the defendant’s net income for each year was reduced
by the penalties and interest he incurred for filing his
tax returns late. Without question, it is proper for a
court to ignore such self-inflicted reductions in income
when determining a party’s earning capacity. When the
penalties and interests are removed from the defen-
dant’s presentation of his net income, the evidence sup-
ports the court’s conclusion as to the defendant’s earn-
ing capacity. Specifically, for tax year 2017, the
summary prepared by the defendant’s accountant states
that his net business income was $160,882, that he owed
$74,421 for federal and state income taxes, and that his
net income was $86,461. The defendant’s 2017 federal
tax return, however, specifies that he owed $48,469 in
federal income tax and $15,602 in penalties and interest.
Significantly, if the defendant’s purported ‘‘net income’’
of $86,461 was not reduced by $15,602 in penalties and
interest, it would have been $102,063.
In addition, the court found that the defendant is in
good health and has been operating his own business for
almost twenty-five years. The court further emphasized
that it found the defendant’s testimony regarding his
finances to be ‘‘evasive’’ and ‘‘not credible.’’ Finally,
the court noted in its articulation that the defendant
testified that he had submitted bids for construction
work that, if accepted, would be worth $100,000 in profit
for him. On the basis of our review of the entire record,
we cannot conclude that the court’s finding that the
defendant has a net earning capacity of $101,000 is
clearly erroneous.
II
The defendant next claims that the court improperly
ordered him to pay $1000 per week in alimony beginning
when the plaintiff vacates the marital residence. He
argues that there is insufficient evidence to support the
court’s prospective alimony award because there was
no evidence regarding the plaintiff’s needs after she
vacates the marital residence. We disagree.
‘‘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.) Rad-
cliffe v. Radcliffe, 109 Conn. App. 21, 29, 951 A.2d
575 (2008).
In the present case, the court found that, prior to the
birth of the parties’ five children, the plaintiff worked
full-time as a secretary and that she ‘‘has had some
college education but she has not been very active in
the employment market since the birth of her five chil-
dren. She is attempting to obtain employment at the
Wilton school system and/or the Danbury school sys-
tem.’’ The court rejected the defendant’s claim that the
plaintiff has an earning capacity of $38,000, and it found
that the defendant is in good health, has an earning
capacity of $101,000, and has paid for most of the house-
hold expenses. In addition, the court credited the plain-
tiff’s testimony ‘‘that with help from her family, and
with part-time employment and child support payments
from [the defendant], she will be able to continue to
reside in the marital residence . . . .’’ The court noted
that the marital residence was the subject of a foreclo-
sure action, and the plaintiff’s financial affidavit indi-
cated that she had no mortgage or rent expense.
On the basis of its findings, the court ordered that
the defendant shall continue to pay the plaintiff $2802
per week in alimony, to cover utilities, landscaping,
and cell phones for the children, until she vacates the
marital residence, at which point he shall pay her $1000
per week in alimony. Although the court did not make
detailed findings with regard to its alimony award, we
conclude that the record supports the award. The court
structured its award so that the plaintiff would receive
a reduced amount of alimony for the period of time
that she remained in the marital residence and had no
mortgage or rent expense. Further, the court knew from
the evidence and its orders that the plaintiff would
require a residence large enough to accommodate her
five children and her father and that such residence
would be within a reasonable distance from Wilton or
New York. In light of these findings, it was reasonable
for the court to conclude that the plaintiff would require
additional support once she vacates the marital resi-
dence and incurs additional housing expenses. Accord-
ingly, the court did not abuse its discretion in structur-
ing the alimony award as it did.
III
The defendant’s third claim is that the court abused
its discretion in precluding modification of the periodic
alimony award based on cohabitation under General
Statutes § 46b-86 (b).3 He argues that, under § 46b-86
(b), ‘‘the payor of alimony has a statutory right to pursue
modification of alimony for cohabitation of the other
party if the cohabitation alters the financial needs of
the payee. However, our trial court erased that right,
without any evidence as to identifying with whom she
would cohabit, where, her needs and the benefit of
a financial evidentiary picture when that occurred. In
briefing this issue, I did not find any case where the trial
court effectively eliminated the cohabitation statutory
modification rights of the payor. The trial court orders
in this regard are contrary to the rights outlined in that
statute.’’ We are not persuaded.
‘‘[Section] 46b-86 (b), the so-called cohabitation stat-
ute, was enacted four years after § 46b-86 (a) to correct
the injustice of making a party pay alimony when his
or her ex-spouse is living with a person of the opposite
sex, without marrying, to prevent the loss of support.’’
(Internal quotation marks omitted.) Wichman v. Wich-
man, 49 Conn. App. 529, 532, 714 A.2d 1274, cert. denied,
247 Conn. 910, 719 A.2d 906 (1998).
‘‘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.’’ (Emphasis in original; internal quotation marks
omitted.) Brown v. Brown, 148 Conn. App. 13, 24–25,
84 A.3d 905, cert. denied, 311 Conn. 933, 88 A.3d 549(2014). Furthermore, ‘‘[i]t is well established by our
case law that the trial court, as a part of its right to
award nonmodifiable alimony and its equitable powers,
has the legal authority to order alimony that does not
terminate even in the event of remarriage or cohabita-
tion.’’ (Internal quotation marks omitted.) Sheehan v.
Balasic, 46 Conn. App. 327, 331, 699 A.2d 1036 (1997),
appeal dismissed, 245 Conn. 148, 710 A.2d 770 (1998).
In the present case, the court found that the plaintiff
‘‘provides care for her eighty-four year old father. Her
father assists her financially with some of the household
expenses. She is committed to continuing the care she
provides for her father in the foreseeable future.’’ Rec-
ognizing this arrangement, the court, in making its ali-
mony order, specifically addressed the nonmodification
of alimony, stating: ‘‘There shall be no change as to
alimony based upon cohabitation by [the plaintiff]
because it is expected that she will continue to live
with other adults who will help her with her living
expenses.’’
Accordingly, because the court has the statutory
authority to award nonmodifiable alimony and because
the record supports its decision to do so, we conclude
that the court’s alimony order neither conflicts with
§ 46b-86 (b) nor constitutes an abuse of discretion.
IV
Next, the defendant claims that the court improperly
awarded the marital residence to the plaintiff without
specifying that she would take it subject to any liens
on the property. The defendant misunderstands the
court’s order.
In its memorandum of decision, the court found that
the marital residence is the subject of a foreclosure
action and that there are several liens on the property,
including federal and state tax liens. The court awarded
the plaintiff the marital residence ‘‘free and clear of any
claim by [the defendant]. [The plaintiff] shall sell the
property and take control over the sale process in order
to attempt to protect any net equity notwithstanding
the foreclosure action. . . . Any net equity shall remain
the sole property of [the plaintiff].’’
The court’s order specifies that the plaintiff is entitled
to ‘‘any net equity’’ following the sale of the marital
residence. ‘‘Equity’’ is defined as ‘‘the money value of
a property or of an interest in a property in excess of
claims or liens against it.’’ Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2003) p. 423. Given this definition,
the court’s order establishes the very point that the
defendant claims requires further specification—that
is, that the plaintiff is entitled to the proceeds of the
sale of the property in excess of claims or liens against
it. Accordingly, the defendant’s claim is without merit.
V
The defendant’s fifth claim is that the court abused its
discretion in granting the plaintiff the right to relocate
a reasonable distance from Wilton or New York without
considering General Statutes § 46b-56d,4 which pro-
vides several factors for a court to consider and apply
when deciding a postjudgment motion to relocate with
a minor child. The defendant argues: ‘‘Under [§ 46b-
56d] the court is assigned the task of determining
whether the move would have a substantial impact on
an existing parenting plan. . . . [The court’s] order is
without additional evidence as to where [the plaintiff]
is relocating or the impact on the existing parenting
plan. The order effectively eliminates [the defendant’s]
rights under the relocation statute to identify the impact
on the parenting plan and to have an evidentiary hearing
on the issue.’’ We are not persuaded.
Section 46b-56d provides in relevant part: ‘‘(a) In any
proceeding before the Superior Court arising after the
entry of a judgment awarding custody of a minor child
and involving the relocation of either parent with the
child, where such relocation would have a significant
impact on an existing parenting plan, the relocating
parent shall bear the burden of proving, by a preponder-
ance of the evidence, that (1) the relocation is for a
legitimate purpose, (2) the proposed location is reason-
able in light of such purpose, and (3) the relocation
is in the best interests of the child. . . .’’ (Emphasis
added.)
By its plain language, § 46b-56d applies when the
relocation issue arises after the entry of a judgment
awarding custody of a minor child. Accordingly, § 46b-
56d does not apply in the present case because the
relocation issue was decided in the initial judgment
dissolving the parties’ marriage at the same time that
the court was establishing the parenting plan. See, e.g.,
Lederle v. Spivey, 113 Conn. App. 177, 187 n.11, 965
A.2d 621 (‘‘[t]he enactment of . . . § 46b-56d clearly
changed the analysis and the burden allocation in post-
judgment relocation cases, but there is no indication
that the legislature intended it to apply to relocation
matters resolved at the time of the initial judgment for
the dissolution of a marriage’’ (emphasis added)), cert.
denied, 291 Conn. 916, 970 A.2d 728 (2009). Indeed, this
court has held that ‘‘relocation issues that arise at the
initial judgment for the dissolution of marriage continue
to be governed by the standard of the best interest of
the child as set forth in [General Statutes] § 46b-56.’’5
Id., 187.
In the present case, the defendant does not claim
that the court failed to consider the best interests of
the children under § 46b-56 (c) in deciding the reloca-
tion issue, and there is sufficient evidence in the record
to support the court’s conclusion on that issue. Accord-
ingly, we conclude that the court did not abuse its
discretion in granting the plaintiff’s request to relocate
with the minor children.
VI
Finally, the defendant claims that the court erred
in failing to specify that his alimony obligation would
terminate after ten years from the date of the dissolution
judgment. The defendant argues that the court’s order is
ambiguous because it provides that alimony terminates
upon the death or remarriage of the plaintiff, but it fails
to specify that alimony also terminates after ten years
from the date of dissolution. We disagree.
In its memorandum of decision, the court ordered
‘‘that [the defendant] pay [the plaintiff] periodic alimony
in the amount of $1000 per week for a period of ten
years from the date of the judgment of dissolution.
However, payments shall begin when [the plaintiff]
vacates the marital residence . . . . Until [the plaintiff]
vacates the marital residence, the current pendente lite
order shall continue in effect so that [the defendant]
continues to pay $280 per week in order to cover
expenses of gas, oil, electric and landscaping as well
as cell phones for the children. Alimony shall terminate
upon the death or remarriage of [the plaintiff].’’ (Empha-
sis added.)
As the quoted passage makes clear, the court ordered
that alimony terminates ten years after the judgment
of dissolution or when the plaintiff dies or remarries.
Accordingly, we conclude that the court’s order is not
ambiguous and does not constitute an abuse of discre-
tion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Under Practice Book § 60-5, this court ‘‘may order a further articulation
of the basis of the trial court’s factual findings or decision.’’
2
We note that, although the court ordered that ‘‘the current pendente lite
order shall continue in effect so that [the defendant] continues to pay $280
per week’’ in alimony, the pendente lite order provided that the defendant
would pay the plaintiff $288 per week in alimony. Nevertheless, neither
party has raised a claim regarding this discrepancy.
3
General Statutes § 46b-86 (b) provides: ‘‘In an action for divorce, dissolu-
tion of marriage, legal separation or annulment brought by a spouse, in
which a final judgment has been entered providing for the payment of
periodic alimony by one party to the other spouse, 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 show-
ing that the party receiving the periodic alimony is living with another person
under circumstances which the court finds should result in the modification,
suspension, 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. In the event that a final judgment incorporates a provision of
an agreement in which the parties agree to circumstances, other than as
provided in this subsection, under which alimony will be modified, including
suspension, reduction, or termination of alimony, the court shall enforce
the provision of such agreement and enter orders in accordance therewith.’’
4
General Statutes § 46b-56d provides: ‘‘(a) In any proceeding before the
Superior Court arising after the entry of a judgment awarding custody of
a minor child and involving the relocation of either parent with the child,
where such relocation would have a significant impact on an existing parent-
ing plan, the relocating parent shall bear the burden of proving, by a prepon-
derance of the evidence, that (1) the relocation is for a legitimate purpose,
(2) the proposed location is reasonable in light of such purpose, and (3)
the relocation is in the best interests of the child.
‘‘(b) In determining whether to approve the relocation of the child under
subsection (a) of this section, the court shall consider, but such consider-
ation shall not be limited to: (1) Each parent’s reasons for seeking or oppos-
ing the relocation; (2) the quality of the relationships between the child and
each parent; (3) the impact of the relocation on the quantity and the quality
of the child’s future contact with the nonrelocating parent; (4) the degree
to which the relocating parent’s and the child’s life may be enhanced econom-
ically, emotionally and educationally by the relocation; and (5) the feasibility
of preserving the relationship between the nonrelocating parent and the
child through suitable visitation arrangements.’’ (Emphasis added.)
5
General Statutes § 46b-56 provides in relevant part: ‘‘(a) In any contro-
versy before the Superior Court as to the custody or care of minor children,
and at any time after the return day of any complaint under section 46b-
45, the court may make or modify any proper order regarding the custody,
care, education, visitation and support of the children . . . .
‘‘(b) In making or modifying any order as provided in subsection (a) of
this section, the rights and responsibilities of both parents shall be consid-
ered 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. . . .
‘‘(c) In making or modifying any order as provided in subsections (a) and
(b) of this section, the court shall consider the best interests of the child,
and in doing so may consider, but shall not be limited to, [sixteen enumer-
ated] factors . . . . The court is not required to assign any weight to any
of the factors that it considers . . . .’’