Altraide v. Altraide ( 2014 )

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IRO B. ALTRAIDE v. IBIBIA ALTRAIDE
(AC 35409)
Gruendel, Alvord and Mihalakos, Js.
Argued April 24—officially released October 7, 2014
(Appeal from the Superior Court, judicial district of
Hartford, Westbrook, J. [pendente lite order; judgment];
Bozzuto, J. [motions for contempt and to modify].)
Ibibia Altraide, self-represented, the appellant
(defendant).
W. Anthony Stevens, Jr., for the appellee (plaintiff).
Opinion
GRUENDEL, J. The self-represented defendant,
Ibibia Altraide, appeals from the judgments of the trial
court dissolving his marriage to the plaintiff, Iro B.
Altraide, and deciding certain postjudgment motions.
The defendant claims that the court abused its discre-
tion by (1) ordering him to pay child support pendente
lite, (2) awarding the plaintiff alimony, child support,
attorney’s fees, and sole custody of their child in the
dissolution, and (3) deciding two postjudgment
motions, specifically, granting the plaintiff’s postjudg-
ment motion for contempt1 and denying the defendant’s
postjudgment motion for modification.2 We dismiss as
moot the defendant’s claim regarding the pendente lite
order and affirm the judgments of the trial court in all
other respects.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The plaintiff and
the defendant were married in Port Harcourt, Nigeria,
in 2006. After moving to Connecticut, the couple had
a child in 2009. Throughout the marriage there were
several periods of separation and reconciliation, culmi-
nating in a complaint for legal separation filed by the
plaintiff on March 16, 2012.
On April 4, 2012, the court issued a pendente lite
order requiring, inter alia, the defendant to pay the
plaintiff $228 per week in child support until a final
judgment could be rendered. On January 24, 2013, a
trial was held and the court thereafter rendered a final
judgment dissolving the marriage and ordering, inter
alia, (1) the defendant to pay the plaintiff $200 per week
in alimony for a period of three years or until such time
as the plaintiff obtained full-time employment, (2) the
defendant to pay the plaintiff $228 per week in child
support, and (3) the plaintiff to receive sole custody of
the child.
Following the trial, the plaintiff filed several motions
for contempt alleging that the defendant had disre-
garded the court’s order to pay alimony. The court held
three contempt hearings in April, July, and September
of 2013. At each of the hearings, the court found that
the defendant had failed to pay alimony and determined
the amount in arrearage. The court later found the
defendant in contempt and, on September 17, 2013,
the defendant was ordered incarcerated for failure to
comply with the court’s alimony order. On that same
day, the defendant made a $1000 payment to the plaintiff
and was released from jail. This appeal followed.
We begin by setting forth the standard of review
governing all of the defendant’s claims. ‘‘The well set-
tled 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 reasonable basis in the facts.’’ (Internal
quotation marks omitted.) Borkowski v. Borkowski, 228
Conn. 729, 739, 638 A.2d 1060 (1994). ‘‘[T]o conclude
that the trial court abused its discretion, we must find
that the court either incorrectly applied the law or could
not reasonably conclude as it did. . . . Appellate
review of a trial court’s findings of fact is governed by
the clearly erroneous standard of review. . . . A find-
ing of fact is clearly erroneous when there is no evi-
dence 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.’’ (Inter-
nal quotation marks omitted.) Utz v. Utz, 112 Conn.
App. 631, 634, 963 A.2d 1049, cert. denied, 291 Conn.
908, 969 A.2d 173 (2009).
I
The defendant first argues that the court abused its
discretion by awarding the plaintiff pendente lite child
support payments in the amount of $228. We do not
reach the merits of this claim, as the question presented
is moot.3
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction . . . .
Because courts are established to resolve actual contro-
versies, before a claimed controversy is entitled to a
resolution on the merits it must be justiciable.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Preston, 286 Conn. 367, 373–74, 944 A.2d 276 (2008).
Pendente lite orders are temporary orders of the court
that are necessarily extinguished once a final judgment
has been rendered. Sweeney v. Sweeney, 271 Conn. 193,
201, 856 A.2d 997 (2004). Once a final judgment has
been rendered, an issue with respect to a pendente lite
order is moot because an appellate court can provide
no practical relief. Id. As a result, an appellate court
lacks subject matter jurisdiction over a pendente lite
order after the trial court has rendered a final judg-
ment. Id.
In the present matter, the pendente lite order was
issued on April 4, 2012. That order remained in effect
until January 24, 2013, when the marriage was dissolved
and a final judgment was rendered by the court. When
the final judgment was rendered, the pendente lite order
ceased to exist. Accordingly, the issue on appeal is
moot and, as a result, we do not address the merits of
the defendant’s claim. See Brown v. Brown, 69 Conn.
App. 209, 210, 794 A.2d 550 (2002).
II
The defendant next claims that the court abused its
discretion in awarding alimony, child support, attor-
ney’s fees, and custody of the child to the plaintiff.
We disagree.
The law regarding financial orders in a marital disso-
lution action is well settled. ‘‘[G]reat weight is given to
the judgment of the trial court because of its opportu-
nity to observe the parties and the evidence. Moreover,
the power to act equitably is the keystone to the court’s
ability to fashion relief in the infinite variety of circum-
stances which arise out of the dissolution of a marriage.
. . . For that reason, we allow every reasonable pre-
sumption . . . in favor of the correctness of [the trial
court’s] action.’’ (Citation omitted; internal quotation
marks omitted.) Unkelbach v. McNary, 244 Conn. 350,
366, 710 A.2d 717 (1998).
A
The defendant claims that the court erred in awarding
the plaintiff alimony. Specifically, the defendant argues
that the alimony order was excessive and unsupported
by the facts. We disagree.
General Statutes § 46b-82 governs the court’s ability
to award alimony. It provides in relevant part that a
court, in deciding whether to award alimony, ‘‘shall
consider the length of the marriage, the causes for the
annulment, dissolution of the marriage or legal separa-
tion, the age, health, station, occupation, amount and
sources of income, vocational skills, employability,
estate and needs of each of the parties and the award
[regarding the assignment of property] . . . and, in
the case of a parent to whom the custody of minor
children has been awarded, the desirability of such par-
ent’s securing employment.’’ General Statutes § 46b-82
(a). Although the court must consider all of the factors,
an express finding on each is not necessary. Cushman
v. Cushman, 93 Conn. App. 186, 191, 888 A.2d 156
(2006). The trial court must, however, indicate a basis
for the amount and the duration of the award, and show
facts that logically support it. Nashid v. Andrawis, 83
Conn. App. 115, 122–23, 847 A.2d 1098, cert. denied,
270 Conn. 912, 853 A.2d 528 (2004).
In the present case, the court properly considered
the alimony factors and articulated facts that logically
supported its decision to award alimony of $200 per
week to the plaintiff. After considering the evidence
presented by both parties, the court made several find-
ings, all of which support the basis for the award. First,
the court considered the station, occupation, amount
and sources of income of the parties. The court heard
testimony that the defendant had an established career
as an engineer, while the plaintiff had only recently
finished graduate school and was employed on a part-
time basis. In fact, financial affidavits confirmed that
the defendant earned a weekly income that was greater
than four times the amount earned by the plaintiff.
The court also found that the defendant had earned
additional income from a rental apartment located
above his residence.
Next, the court considered the needs of parties, and
the desirability and feasibility of the plaintiff securing
employment after she was awarded sole custody of the
parties’ minor child. There was evidence before the
court that the plaintiff’s expenses, although modest,
greatly exceeded her income. Finally, the court consid-
ered the length of the marriage and the causes of its
dissolution. The plaintiff testified at the trial that the
defendant once reacted to a domestic violence incident
involving the parties by shutting off the utilities at the
plaintiff’s residence. The plaintiff also testified that, on
a separate occasion, the defendant caused the couple’s
child to stop receiving government aid. The court cred-
ited this testimony and found that ‘‘[t]he plaintiff has
suffered great financial hardship largely because of the
acts of the defendant.’’ These findings of fact adequately
support the court’s decision to award alimony.
The alimony order was limited to a period of three
years or until such time as the plaintiff obtained full-
time employment. ‘‘Underlying the concept of time lim-
ited alimony is the sound policy that such awards may
provide an incentive for the spouse receiving support
to use diligence in procuring training or skills necessary
to attain self-sufficiency.’’ (Internal quotation marks
omitted.) Hopfer v. Hopfer, 59 Conn. App. 452, 460, 757
A.2d 673 (2000). In the present case, the court heard
testimony that the plaintiff had recently completed
graduate school in 2012, and had been actively pursuing
full-time employment while also caring for a young
child. The court therefore properly found that three
years was a reasonable timeframe to encourage the
plaintiff’s self-sufficiency. Accordingly, we conclude
that awarding time limited alimony under these circum-
stances does not constitute an abuse of discretion by
the court.
B
Next, we turn to the child support order. The defen-
dant argues that the court erred by not considering the
plaintiff’s receipt of social security assistance, pendente
lite payments, and alimony payments in setting the
award for child support. We disagree.
General Statutes § 46b-84 governs the court’s power
to award child support. The statute requires in relevant
part that, upon divorce, parents will continue to be
responsible for ‘‘maintain[ing] the child according to
their respective abilities . . . .’’ General Statutes § 46b-
84 (a). Section 46b-84 (d) provides: ‘‘In determining
whether a child is in need of maintenance and, if in
need, the respective abilities of the parents to provide
such maintenance and the amount thereof, the court
shall consider the age, health, station, occupation, earn-
ing capacity, amount and sources of income, estate,
vocational skills and employability of each of the par-
ents, and the age, health, station, occupation, educa-
tional status and expectation, amount and sources of
income, vocational skills, employability, estate and
needs of the child.’’
Similar to the order for alimony, the court reviewed
the positions of both parties and determined that the
defendant had the respective ability to contribute $228
per week to support the child.4 Additionally, the court
considered testimony from the plaintiff regarding the
child’s age and health.5 Finally, the court found that
the child support order was consistent with the child
support guidelines, as set forth in § 46b-215a-1 et seq.
of the Regulations of Connecticut State Agencies, for a
person with a similar weekly income as the defendant.6
The defendant argues that the court should have con-
sidered additional factors when setting the child sup-
port order, including the plaintiff’s receipt of social
security assistance, the pendente lite payments, and the
alimony order. The defendant has not demonstrated,
however, that the court failed to consider the factors
in § 46b-84 (d), and ‘‘we presume that the court, in
rendering its judgment . . . undertook the proper anal-
ysis of the law and the facts.’’ (Internal quotation marks
omitted.) Brett Stone Painting & Maintenance, LLC v.
New England Bank, 143 Conn. App. 671, 681, 72 A.3d
1121 (2013). Therefore, we conclude that the court prop-
erly reviewed the statutory factors and did not abuse
its discretion.
C
The defendant argues that the court improperly
ordered the defendant to pay the plaintiff’s attorney’s
fees even though he could not afford to retain his own
counsel. We disagree.
In this case, the plaintiff’s counsel, Attorney Ronald
T. Scott, represented the plaintiff pro bono and
requested, at the conclusion of the trial, that attorney’s
fees be awarded because of the unexpected effort
required to respond to the defendant’s numerous
motions. In the period of time between the original
divorce filing and the final judgment, the defendant filed
thirty-four motions with the court.7
The law regarding an award of attorney’s fees is well
settled. General Statutes § 46b-62 governs the award of
attorney’s fees in dissolution proceedings and provides
in relevant part that ‘‘the court may order either spouse
. . . to pay the reasonable attorney’s fees of the other
in accordance with their respective financial abilities
and the criteria set forth in [§] 46b-82.’’ Additionally, a
court may order the full amount of reasonable attor-
ney’s fees, even when the attorney was providing repre-
sentation for free or at a reduced cost. See Benavides v.
Benavides, 11 Conn. App. 150, 156, 526 A.2d 536 (1987).8
As discussed in part II A of this opinion, the court
considered the statutory factors under § 46b-82 and
determined each party’s financial capacity. The court
had before it evidence that the plaintiff was of little
means and did not have the resources to retain counsel,
whereas the defendant was employed full-time and
earned a substantial salary. Given the large disparity in
the respective income of the parties and the plaintiff’s
lack of resources, we conclude that the court did not
abuse its discretion in awarding reasonable attor-
ney’s fees.
D
The defendant further argues that the court’s order
awarding the plaintiff sole custody of the child was
arbitrary and lacked a basis in fact. We do not agree.
General Statutes § 46b-56 provides the legal standard
for determining child custody issues. The statute
requires that the court’s decision serve the child’s best
interests. Wilson v. Wilson, 38 Conn. App. 263, 269, 661
A.2d 621 (1995). ‘‘In determining what is in the best
interests of the child, the court is vested with a broad
discretion. . . . [W]e are not privileged to usurp that
authority or to substitute ourselves for the trial court.’’
(Internal quotation marks omitted.) Lederle v. Spivey,
113 Conn. App. 177, 185, 965 A.2d 621, cert. denied, 291
Conn. 916, 970 A.2d 728 (2009).
Although the court did not state a specific factual
basis in its memorandum of decision before awarding
the plaintiff sole custody, the record is sufficient to
support the custody order. During the trial, the court
heard the testimony of Attorney Seon Bagot, the guard-
ian ad litem assigned to represent the interests of the
parties’ child. Bagot testified that he had met with the
parents and the child, conducted home visits, and con-
tacted the child’s pediatrician and teacher. Additionally,
he reviewed state records and monitored e-mail com-
munications between the parties. After reviewing this
information, Bagot concluded that the plaintiff should
receive sole custody of the child. This recommendation
was based on several factors, including: (1) the defen-
dant’s intention of moving to Nigeria, (2) the defen-
dant’s inconsistent availability due to his work
schedule, and (3) the defendant’s short and infrequent
visits with the child. This record sufficiently supports
the court’s decision to award sole custody to the plain-
tiff, and that decision does not constitute an abuse
of discretion.
III
Finally, the defendant challenges two of the court’s
postjudgment orders. The defendant argues that the
court erred in granting the plaintiff’s motion for con-
tempt and in denying the defendant’s motion for modifi-
cation. We disagree.
A
The defendant argues that the court improperly found
him in contempt on July 30, 2013. In particular, he
argues that the court’s finding of contempt was based
solely on ‘‘mere representations from the plaintiff.’’ We
do not agree.
‘‘Recently, our Supreme Court clarified the standard
of review applicable to civil judgments of contempt in
In re Leah S., 284 Conn. 685, 935 A.2d 1021 (2007).
The court explained: ‘[O]ur analysis of a judgment of
contempt consists of two levels of inquiry. First, we
must resolve the threshold question of whether the
underlying order constituted a court order that was
sufficiently clear and unambiguous so as to support a
judgment of contempt. . . . This is a legal inquiry sub-
ject to de novo review. . . . Second, if we conclude
that the underlying court order was sufficiently clear
and unambiguous, we must then determine whether the
trial court abused its discretion in issuing, or refusing
to issue, a judgment of contempt, which includes a
review of the trial court’s determination of whether the
violation was wilful or excused by a good faith dispute
or misunderstanding.’ ’’ Behrns v. Behrns, 124 Conn.
App. 794, 808, 6 A.3d 184 (2010).
In analyzing the defendant’s claim on appeal, some
additional facts and procedural history are helpful. On
January 24, 2013, the court rendered a dissolution judg-
ment that, in part, ordered the defendant to pay $200
in alimony to the plaintiff each week for three years or
until she obtained full-time employment. On April 30,
2013, the court found that the defendant had failed to
make a single alimony payment, resulting in an arrear-
age of $2600. The court ordered the arrearage to be
paid at a rate of $20 per week until it was paid in full,
but did not find the defendant in contempt. On July 30,
2013, the court found that the defendant had still not
made any payment towards either the current alimony
order or the arrearage. Upon concluding that the ‘‘defen-
dant willfully violated the court’s order dated January
24, 2013,’’ the court held the defendant in contempt.
We begin by reviewing the alimony order to deter-
mine whether it is sufficiently clear. The alimony order
from January 24, 2013, required, in relevant part, that
‘‘[t]he defendant shall pay the plaintiff $200 a week in
alimony for three years or until such time as the plaintiff
attains full-time employment.’’ Although the defendant
argues that this order was ‘‘vague,’’ this argument is
without merit. The court order required the defendant
to pay the plaintiff a definite amount of money at speci-
fied intervals. We therefore conclude that the alimony
order was clear and unambiguous, and that the defen-
dant was properly placed on notice that he was required
to pay the aforementioned amount of alimony to the
plaintiff.
Next, we turn to whether there was a proper factual
basis for the court’s finding that the defendant had
wilfully refused to comply with the court order. ‘‘[I]f
a finding of wilful [contempt] is based on a court’s
determination of the credibility of relevant testimony
at trial, we will overturn it only if the record demon-
strates a manifest abuse of discretion.’’ LaBossiere v.
Jones, 117 Conn. App. 211, 224, 979 A.2d 522 (2009). In
this case, the court heard the following relevant testi-
mony from the defendant. On July 30, 2013, the defen-
dant testified that he earned a weekly income of $1160
per week. This is essentially the same weekly income
that was reported on his financial affidavit during the
dissolution proceedings.9 The court also heard from the
plaintiff’s counsel, who asserted that the defendant had
‘‘not paid one penny of alimony or arrearage payment.’’
After hearing from both the plaintiff and the defendant,
the court found that, despite the defendant’s unchanged
weekly income since the initial order, he had steadfastly
refused to make even partial payment in compliance
with the alimony order.10 In conclusion, the court did
not abuse its discretion by finding the defendant in
wilful contempt of the court’s order.
B
The defendant last argues that his postjudgment
motion for modification was erroneously denied. We
disagree.
Modification of orders for alimony or child support
is governed by General Statutes § 46b-86. Section 46b-
86 (a) requires that the moving party demonstrate that
one of the parties had sustained a ‘‘substantial change
in . . . circumstances . . . .’’ This change in circum-
stances must be one that arose after the original dissolu-
tion judgment was rendered. Borkowski v. Borkowski,
supra, 228 Conn. 736. This requirement avoids giving a
party an opportunity to relitigate an already settled
issue. Id., 735–36.
In the present case, the defendant was given an
opportunity to establish a substantial change in circum-
stances during a two day hearing on September 17 and
18, 2013. At that hearing, the defendant argued that
(1) the plaintiff had increased her income since the
dissolution, (2) he had since become engaged to be
married, (3) he had suffered a reduction in income due
to a change in his tax filing status, and (4) he had high
expenses due to a large residential mortgage. The court
addressed each claim separately. First, the court found
that the plaintiff’s income had not increased since the
marital dissolution because her temporary job ended
in April and she had not yet found full-time employment.
Second, the court found that the defendant’s recent
engagement was not a factor that altered his ability to
pay alimony. Third, the defendant’s change in tax filing
status was not a proper ground for modification. Finally,
the court held that the mortgage expenses could not
be considered because they were part of the property
settlement in the judgment of dissolution and not a
substantial change since the final judgment. The defen-
dant therefore failed to carry the burden of showing that
a substantial change in circumstances had occurred.
Accordingly, we conclude that the court did not abuse
its discretion by denying the defendant’s motion for
modification.
The defendant’s appeal regarding the pendente lite
order is dismissed as moot. The judgments are affirmed
in all other respects.
In this opinion the other judges concurred.
1
The defendant additionally argues that the court refused to rule on a
contempt motion filed against the plaintiff. The record, however, contains
no indication from the court that it would not consider the motion for
contempt or that the defendant was barred from seeking a hearing and
adjudication of his motion. On the record before us, we thus conclude that
the defendant has not appealed from a final judgment. See Ramin v. Ramin,
281 Conn. 324, 337 n.7, 915 A.2d 790 (2007); Ahneman v. Ahneman, 243
Conn. 471, 478–80, 706 A.2d 960 (1998). We therefore dismiss the defendant’s
claim for lack of subject matter jurisdiction. See Ahneman v. Ahneman,
supra, 478–79.
2
The defendant also argues that the court lacked jurisdiction over this
case because a prior divorce action had been filed in Nigeria. The test for
jurisdiction over marital actions is domicile. Litvaitis v. Litvaitis, 162 Conn.
540, 545, 295 A.2d 519 (1972). The record confirms, based on the testimony
of the plaintiff and the defendant, that both parties were residents of Con-
necticut for twelve months prior to the filing of the complaint. Jurisdiction
in this state is therefore proper.
The defendant makes a bevy of other arguments which can be generally
categorized as allegations of prejudice and bias by the trial judge. This court
declines to review these claims that are improperly briefed and lack any
legal support. See Barros v. Barros, 309 Conn. 499, 503 n.4, 72 A.3d 367
(2013) (claims asserted without citation to legal authority not reviewed).
3
Although it is well established that a pendente lite child support order
is an immediately appealable final judgment; Gong v. Huang, 129 Conn.
App. 141, 148, 21 A.3d 474, cert. denied, 302 Conn. 907, 23 A.3d 1247 (2011);
it is unclear from the record in the present case whether the defendant
appealed from the pendente lite order. We need not resolve this ambiguity
in light of our conclusion that his claim is moot.
4
See part II A of this opinion for a discussion of the court’s consideration
of the financial affidavits of both parties, as well as the testimony regarding
the parties’ educational background and current employment status.
5
The plaintiff testified that their child was born on August 6, 2009. Addi-
tionally, the plaintiff testified that the child was born ‘‘almost five months
premature’’ and therefore required physical and occupational therapy for
about two years.
6
The defendant’s financial affidavit states that he earns approximately
$1100 in weekly income. The Commission for Child Support Guidelines
advise that a person with one child and weekly income of $1100 should pay
$241 per week in child support.
7
Several of these motions appear to serve no other purpose than to delay
the proceedings or harass the plaintiff. For example, on June 25, 2012, the
defendant filed a motion for counsel fees even though he was a pro se party.
On August 24, 2012, he filed a motion for an immediate hearing followed
by a September 4, 2012 motion for continuance, which was followed by a
September 21, 2012 motion for an immediate hearing.
8
In Benavides, this court reversed the trial court’s decision to reduce an
award of attorney’s fees on the basis that the plaintiff had been represented
by a nonprofit organization. Benavides v. Benavides, supra, 11 Conn. App.
156. This court stated: ‘‘It would be unreasonable to allow a losing party in
a family relations matter to reap the benefits of free representation to the
other party. A party should not be encouraged to litigate under the assump-
tion that no counsel fee will be awarded in favor of the indigent party
represented by public legal services . . . .’’ Id., 154.
9
On January 24, 2013, the defendant signed a financial affidavit which
stated a weekly income of $1148.85. The court used this information in
setting the initial alimony order of $200 per week. At the motion for contempt
hearing, the defendant failed to assert any change in his income that would
have negatively impacted his ability to comply with the order.
10
The defendant additionally argued before the trial court that he was
unable to pay the alimony due to weekly expenses of almost $2000. We
acknowledge that ‘‘[t]he inability of a party to obey an order of the court,
without fault on his part, is a good defense to the charge of contempt. . . .
The contemnor must establish that he cannot comply, or was unable to
do so.’’ (Citation omitted; internal quotation marks omitted.) Eldridge v.
Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998). A party may not, however,
choose ‘‘to prioritize the payment of his own nonessential expenses over
the payment owed to the plaintiff.’’ Brody v. Brody, 145 Conn. App. 654,
664, 77 A.3d 156 (2013). The defendant’s claimed nonessential personal
expenses are not a proper basis for his failure to comply with the court’s
alimony order.