Nappo v. Nappo , 188 Conn. App. 574 ( 2019 )

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LUCILLE NAPPO v. WILLIAM NAPPO
(AC 40613)
Lavine, Keller and Bishop, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting in part the plaintiff’s amended motion for contempt, modifying
his alimony obligation and issuing certain sanctions and remedial orders.
Pursuant to the dissolution judgment, which was rendered in 2004, the
defendant was ordered to pay the plaintiff as alimony one half of his
monthly benefit from his M Co. pension and so much of his social
security benefits as would equalize the parties’ incomes, taking into
account the social security benefits that the plaintiff receives. The ali-
mony order also required the defendant to provide the plaintiff with
copies of tax returns and certain forms, and ordered that the parties
divide equally the proceeds of a $375,000 bond that the defendant had
posted in conjunction with his starting his own business after he retired
from M Co., and that the defendant seek the release of the bond from
the bonding company and share the proceeds with the plaintiff. As of
November, 2009, the defendant had not recovered the bond proceeds.
Following various modifications of the alimony order, the plaintiff filed
motions for contempt and for modification of alimony, which were later
amended, claiming, respectively, that the defendant had failed to comply
with a number of the court’s orders and that there had been a substantial
change of circumstances with respect to the parties’ financial situations.
Following a hearing on the plaintiff’s motions, the trial court found with
respect to the motion for contempt that, although the plaintiff had not
proven that the defendant had wilfully violated the alimony order, the
order, nevertheless, had been violated because the alimony payments
were improperly reduced by certain bank wire transfer charges. The
trial court also found that although the plaintiff had not proven that the
defendant had wilfully violated the order directing the defendant to pay
one half of the bond proceeds to the plaintiff, the order had not been
complied with. The court did find the defendant in contempt of an order
that required him to provide the plaintiff with notice related to the status
of the bond, and for his failure to provide the plaintiff with copies of
his tax returns and certain forms. The court issued certain remedial
orders and ordered sanctions for the defendant’s contempt and noncom-
pliance with certain orders, and it granted the plaintiff’s motion for
modification of alimony. On the defendant’s appeal to this court, held:
1. The trial court did not abuse its discretion in granting the plaintiff’s
amended motion for modification and increasing the defendant’s ali-
mony payments to $1300 per month, that court having properly factored
into its calculation of the defendant’s weekly income certain amounts
advanced to him by his current wife and the expenditures she had paid
on his behalf: although the defendant claimed that the court erroneously
found an increase in his weekly net income by incorrectly assuming
that his current wife’s contributions to him constituted gifts rather than
loans that he was obligated to pay, no promissory note or other documen-
tary evidence was presented to support the defendant’s contention that
the payments were loans, and there was no evidence that any terms of
repayment existed or that any repayment had ever been made or ten-
dered during the entire course of the defendant’s current marriage of
approximately ten years, and the court correctly considered the current
wife’s financial contributions in calculating the defendant’s weekly
income because they were relevant to the defendant’s expenses, a mate-
rial factor in determining his net income and, therefore, his ability to
pay the increased alimony; moreover, the defendant’s claim that the
modified alimony award of $1300, plus $1000 per month to be paid
toward an arrearage, was excessive was unavailing, as the award nearly
equalized the parties’ incomes as was originally intended in the dissolu-
tion judgment, and contrary to the defendant’s claim, the court’s failure
to take into account certain additional income that he claimed the
plaintiff allegedly derived from renting the parties’ former marital home
was not clearly erroneous in light of the evidence before the court,
which showed that the property had been foreclosed and was no longer
generating rental income.
2. The defendant could not prevail on his claim that the trial court improperly
sanctioned him for his contempt of certain court orders and issued
additional orders to remediate his failure to comply fully with certain
other orders:
a. This court declined to review the defendant’s claim that it was unfair
for the trial court to award the plaintiff attorney’s fees and travel
expenses as a sanction for his being found in contempt, which was
based on his claim that when the plaintiff failed to appear for a prior
hearing, the court denied his motion for sanctions for expenses related
to the cost of preparing for that hearing; the defendant brought his
motion for sanctions to address the plaintiff’s alleged failure to comply
with certain discovery requests and to file a financial affidavit, not
because of her failure to appear at the subject hearing, and his claim
that he also had incurred travel expenses and attorney’s fees in prepara-
tion for the hearing at which the plaintiff failed to appear was not
adequately raised before the trial court and, therefore, was not properly
preserved for appeal.
b. The trial court did not abuse its discretion in ordering the defendant
to commence paying interest on the plaintiff’s share of the bond proceeds
if the bond was not released on or before October 31, 2017: although
that court did not find the defendant in contempt for failing to comply
with its order to obtain the release of the bond and to share the proceeds
equally with the plaintiff, it expressed its concern that compliance was
lacking and entered the remedial order to secure compliance in the near
future, and it would defy common sense to conclude that merely because
the defendant’s violation of the order was not wilful, the court was
deprived of its authority to enforce its order; moreover, the court reason-
ably determined that the defendant, in the exercise of due diligence,
would be able to resolve the payment issue if given several additional
months to obtain the release of the bond, and the defendant admitted
in his appellate brief that the bonding company has been willing to
release the bond proceeds since December, 2017.
c. The trial court did not abuse its discretion in ordering the defendant
to reimburse the plaintiff $391.50 for the bank wire transfer charges, as
the remedial order was proper even though the defendant’s violation
of the alimony order was not wilful because it compensated the plaintiff
for a minor alimony deficiency.
Argued December 4, 2018—officially released March 19, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Gruendel, J.;
judgment dissolving the marriage and granting certain
other relief; thereafter, the court, Albis, J., granted in
part the plaintiff’s amended motion for contempt,
granted the plaintiff’s amended motion for modification
of alimony and issued certain orders, and the defendant
appealed to this court. Affirmed.
William Nappo, self-represented, the appellant
(defendant).
Opinion
KELLER, J. The self-represented defendant, William
Nappo, appeals from the judgment of the trial court
granting postdissolution motions filed by the plaintiff,
Lucille Nappo, for modification of alimony and for con-
tempt.1 The defendant claims that the court erred in (1)
granting the plaintiff’s motion for modification, thereby
increasing his monthly alimony payments,2 and (2)
imposing certain sanctions and fashioning additional
orders directed to the defendant upon finding him in
contempt and/or not in compliance with several court
orders. We affirm the judgment of the court.
The following facts and procedural history are rele-
vant to this appeal. The parties’ marriage endured for
forty-seven years. After a contested trial, a judgment
of dissolution was entered on May 6, 2004. Since the
date of the judgment of dissolution, postjudgment pro-
ceedings have continued unabated.
At the time of the judgment, both of the parties were
sixty-five years old with limited incomes. The dissolu-
tion court, however, noted that during the course of
the marriage, the defendant had enjoyed significant
business success and a lavish lifestyle and had provided
generously for his four children without providing for
the plaintiff’s future. It concluded that it was ‘‘satisfied
that [the defendant] can again make a good or even
extraordinary income.3 Although he is sixty-five, his
health is good, his experience is broad, and his ability
to understand, create, and manage business opportuni-
ties is brilliant.’’ (Footnote added.) The alimony order
provided in pertinent part: ‘‘The [defendant] shall pay
the [plaintiff] as alimony [one] half of his monthly bene-
fit from his Mobil [Corporation] pension immediately
and so much of his social security benefit as will equal-
ize the parties’ income, taking into account the $149
per week that the [plaintiff] receives in social security.
As additional alimony, the [defendant] shall pay the
[plaintiff] $1 per year and the [plaintiff’s] medical insur-
ance premium until the death of either of them or the
[plaintiff’s] remarriage, which shall be nonmodifiable
as to term. Each party shall notify the other of any
changes in income or employment within two weeks
of the same occurring. The [defendant] shall, by April
15th of each year, provide the [plaintiff] with all tax
returns, including 1099s and K-1s, for himself, any cor-
poration in which he holds an interest of more than
[15] percent . . . and any partnership, sole proprietor-
ship, or other entity in which he holds an interest or
from which he derives any financial benefit what-
soever.’’4
On January 18, 2006, the alimony order was modified
by agreement of the parties, and the defendant was
required to pay alimony at the rate of $170 per week,
payable in biweekly payments of $340. The alimony
order was modified again on February 20, 2007, which
effectively reinstated the original alimony order con-
tained in the judgment of dissolution. As the language of
that judgment indicates, the calculation of the alimony
payment due from the defendant to the plaintiff requires
periodic recalculation as changes occur in the parties’
respective monthly social security benefits. Although a
later order was entered on January 13, 2012, it did not
change the operable alimony order but required the
parties to attend a status conference to discuss further
payments due under the 2004 dissolution judgment. The
status conference was held on February 9, 2012, and
the parties reached an agreement about the proper com-
putation of alimony due under the 2004 dissolution judg-
ment as reinstated in the February 20, 2007 order. Under
that agreement, the defendant began to pay monthly
alimony in the amount of $609.15.5
The judgment of dissolution also ordered that the
parties equally divide the proceeds of a bond in the
amount of $375,000 that the defendant had posted in
conjunction with starting his own business after he
retired from Mobil Corporation. The defendant was
ordered to seek ‘‘to be repaid for the bond and to divide
the proceeds’’ with the plaintiff.
On June 15, 2015, the plaintiff filed a motion for
contempt, which she amended on February 23, 2017
(amended motion for contempt), alleging that the defen-
dant had failed: (1) to provide her with proof of tax
returns and 1099, K-1, and W-2 forms as ordered by the
court; (2) to pay her one half of the value of the bond,
or to comply with a court order of November 16, 2009,
relative to proof of his efforts to obtain release of the
bond; (3) to pay alimony on a timely basis; (4) to provide
verification of the amounts that the federal government
was deducting from his income; (5) to disclose informa-
tion concerning his American Express credit card on
his financial affidavit as ordered by the court on Decem-
ber 9, 2015; and (6) to produce a copy of his passport,
also ordered by the court on December 9, 2015.
On June 15, 2015, the plaintiff also filed a motion
for modification of alimony, which she amended on
February 23, 2017 (amended motion for modification),
claiming a substantial change of circumstances based
on the financial situations of the parties. On January
27, 2016, the plaintiff filed another motion for contempt
(second motion for contempt), alleging that the defen-
dant had failed to provide a true and accurate copy of
his credit report as ordered by the court on January
15, 2016.6 On February 3, 2016, the defendant filed a
motion for attorney’s fees for the defense of the plain-
tiff’s pending motions. On February 5, 2016, the plaintiff
filed a motion for attorney’s fees incurred in pursuing
her contempt motions and her motion for modifi-
cation.7
On June 15, 2017, after three days of hearings, the
court rendered a decision on the February 23, 2017
amended motion for contempt and the January 27, 2016
second motion for contempt regarding the credit report,
as well as the February 23, 2017 amended motion for
modification of alimony. The court noted that during
the course of the hearing, the plaintiff had determined
that she was no longer pursuing certain claims she had
alleged in her amended motion for contempt, and it
issued the following findings and orders: ‘‘As to the
plaintiff’s claim that the defendant failed to make all
alimony payments in a timely manner under the terms
of the applicable order, the court finds that some pay-
ments were made late but that the defendant generally
made the payments within a relatively short time after
they were due. As to this ground, the court finds that
the plaintiff has not proven by clear and convincing
evidence that the defendant wilfully violated the court
order, and it does not find the defendant in contempt.
No remedial orders are entered with respect to this
claim.
‘‘With respect to the plaintiff’s claim that her alimony
payments were improperly reduced by bank wire
charges, the court finds that the defendant made
[twenty-five] monthly payments during the period
between November, 2013, and February, 2016, by wire
transfer. Each of those payments by the defendant via
wire transfer was reduced by a wire transfer fee charged
by the defendant’s sending bank and by a further fee
imposed by the plaintiff’s receiving bank. As a result
of these charges, the amount actually credited to the
plaintiff’s bank account for each of the months in ques-
tion was less than the monthly alimony payment of
$609.15 due under the applicable order.
‘‘The payment of the alimony by wire transfer was
not a requirement of the judgment but, rather, was
agreed to by the parties informally. Nevertheless, the
order required the defendant to pay $609.15 to the plain-
tiff. Even though the parties may have agreed to the
wire transfer method, it was incumbent upon the defen-
dant to pay his bank’s wire transfer fee rather than have
it deducted from the amount due to the plaintiff. The
court finds that during the relevant period a total of
$391.50 in wire transfer fees charged by the defendant’s
bank should have been paid by the defendant and not
passed on to the plaintiff. However, the court concludes
that the defendant is not responsible for the fees
charged by the plaintiff’s chosen banking institution to
receive the funds which she agreed to have paid to her
in that manner.
‘‘As to this ground, the court finds that the plaintiff
has not proven by clear and convincing evidence that
the defendant wilfully violated the court order. How-
ever, the court finds that there was a violation of the
order insofar as the defendant did not pay the full
amount of alimony due from him, and the court enters
the remedial orders below to make the plaintiff whole
and prevent the defendant’s [wire] transfer charges
from being passed on to her in the future.’’
As to the alleged failure of the defendant to transfer
to the plaintiff one half of the $375,000 bond pursuant
to the 2004 dissolution judgment, the court found that
‘‘[t]he bond funds had not yet been recovered by the
defendant or paid to the plaintiff on November 16, 2009,
when the court ordered the defendant to provide the
plaintiff with a written report every six months there-
after on the status of the bond and his efforts to comply
with the order to share the proceeds of it with her. . . .
‘‘As to the first of [the plaintiff’s] claims, the court
finds that the defendant has not yet obtained the bond
funds from the bonding company due to certain legal
impediments that have arisen. The cash collateral for
the bond in question is held by International Fidelity
Insurance Company (bonding company). The bonding
company was not required to release the funds which
were posted to secure the issuance of the bond until the
expiration of the statute of limitations on the liabilities
which the bond was intended to protect against, a
period which apparently expired on or about April 16,
2016. Since the passage of that date, the release of the
funds has been further delayed due to a technical error
in the statement, in a related bankruptcy proceeding, of
the legal name of the entity controlled by the defendant
which posted the collateral funds with the bonding com-
pany and to which the refund of the funds is payable.
As to this claim of contempt, the court finds that the
plaintiff has not proven by clear and convincing evi-
dence that the defendant has wilfully violated the order
to pay [one] half of the proceeds of the bond to her.
However, the order has not been complied with, and
the court enters remedial orders intended to secure
such compliance.
‘‘As to the second claim, the court finds that the
plaintiff has proven the following elements of contempt
by clear and convincing evidence. The defendant had
notice of the court’s order of November 16, 2009, requir-
ing him to provide the plaintiff with a written report
every six months on the status of the bond and his
efforts to comply with the order to share the proceeds
of it with her. . . . His noncompliance was wilful. The
court therefore finds the defendant in contempt of the
order . . . . The award to the plaintiff of attorney’s
fees and travel expenses as hereinafter set forth is
attributable, in part, to this finding of contempt.’’
The court then found the defendant in contempt for
failing to provide the plaintiff with copies of his annual
income tax returns, 1099 forms and K-1 forms by April
15 of each calendar year, as well as for failing to provide
the plaintiff with a copy of his passport. The court noted
that its award to the plaintiff of attorney’s fees and
travel expenses is also attributable, in part, to these
additional findings of contempt. The court did not find
the defendant in contempt relative to the plaintiff’s
claims that he failed to disclose an American Express
credit card or that he failed to provide her with a
credit report.
As part of its ruling on the February 23, 2017 amended
motion for contempt, the court ordered the defendant
to pay to the plaintiff within thirty days the sum of
$391.50 in reimbursement of the defendant’s wire trans-
fer charges that had reduced the amount of alimony
the plaintiff received. It also ordered the defendant to
provide the plaintiff’s attorney with a detailed monthly
written statement of his efforts to collect the cash collat-
eral held by the bonding company until he has paid
one half of the bond proceeds as required by the 2004
dissolution judgment. The court also ordered that ‘‘[i]f
for any reason the defendant has not paid the plaintiff
in full for her [one] half of the bond proceeds . . . on
or before October 31, 2017, then the unpaid portion due
to the plaintiff shall accrue interest at the rate of [5
percent] . . . per annum commencing on November
1, 2017, and continuing until the unpaid portion plus
accrued interest has been paid in full, with any partial
payments after November 1, 2017, to be applied first
to interest and then to principal.’’ Finally, the court
ordered the defendant to pay the plaintiff within thirty
days the sum of $2000 in attorney’s fees plus $1000
toward the plaintiff’s travel expenses to attend the
hearing.8
With respect to the amended motion for modification
of alimony, the court reviewed the financial affidavits
filed by each party at the time of the entry of the Febru-
ary 20, 2007 order and found by a preponderance of
the evidence that the defendant’s circumstances had
improved substantially since that date in two ways.
First, the defendant had remarried, and his current wife
provides the bulk of his financial support. Second, since
February 20, 2007, there had been a significant increase
in the defendant’s net worth. His assets had increased
in value by over $400,000, and his liabilities had
decreased by almost three million, from $5,371,775 to
$2,393.818. The court noted that it found the defendant
‘‘to be significantly lacking in credibility,’’ particularly
as to the nature of the financial support that his current
wife provides him. The defendant claimed that sums
contributed to his legal expenses and deposited into
his bank account were loans from his current wife, but
the court, noting the lack of any promissory note or
evidence of any repayment, found that they were gifts,
and that such gifts were continuing regularly. In addi-
tion, the court found that the defendant’s current wife
paid for the bulk of the couple’s expenses, including
the mortgage, taxes and other expenses for two condo-
minium units, one in Connecticut and one in South
Carolina; country club memberships; and travel and
dining out, beyond that which the defendant could
afford on his reported income.
The court found that the defendant’s net weekly
income was therefore comprised of four elements: his
reported weekly income of $586 on his financial affida-
vit, the average weekly amount he has received from
his current wife for ongoing legal fees in the amount
of $263, the average weekly amount of gifts of cash
provided to him by his current wife for deposit into his
bank account in the amount of $90, and $254 in excess
weekly expenditures for which the only payment source
in evidence is the defendant’s current wife, as the defen-
dant’s weekly expenses and liability payments exceed
his net weekly income. As a result of its consideration
of these four elements, the court found the defendant’s
net weekly income to be $1193.
The court found that the plaintiff’s net weekly income
as of the date of the hearing was $567, excluding ali-
mony payments. This income calculation included
recurring financial support from her son. The court
further found that the plaintiff’s needs and expenses
reasonably required a greater amount of income than
the existing alimony order provided her.
Accordingly, the court granted the plaintiff’s
amended motion for modification and ordered the
defendant to pay the plaintiff $1300 per month in ali-
mony retroactive to July 1, 2015, the first month follow-
ing the date of service of her initial motion for
modification on the defendant.9 The retroactive order
generated an arrearage of $16,580, which the court
ordered payable in sixteen consecutive monthly install-
ments of $1000, followed immediately by a final monthly
installment of $580, commencing on July 15, 2017.
The court also denied the parties’ respective motions
for attorney’s fees, finding no adequate basis for either
request. The court indicated that it previously had
awarded the plaintiff attorney’s fees after finding that
the defendant was in contempt of court orders. This
appeal followed.
Before addressing the defendant’s claims, we set
forth the standard of review that applies to our review
of the orders challenged 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.’’ (Internal quotation marks omitted.) Schwarz
v. Schwarz, 124 Conn. App. 472, 476, 5 A.3d 548, cert.
denied, 299 Conn. 909, 10 A.3d 525 (2010). ‘‘As has often
been explained, the foundation for this standard is that
the trial court is in a clearly advantageous position to
assess the personal factors significant to a domestic
relations case. . . . Notwithstanding the great defer-
ence accorded the trial court in dissolution proceed-
ings, a trial court’s ruling . . . may be reversed if, in
the exercise of its discretion, the trial court applies the
wrong standard of law.’’ (Citations omitted; internal
quotation marks omitted.) Gabriel v. Gabriel, 324 Conn.
324, 336, 152 A.2d 1230 (2017).
I
The defendant’s first claim is that the court abused
its discretion when it granted the plaintiff’s amended
motion for modification of alimony and increased his
payments to $1300 per month. The defendant claims
that there was insufficient evidence to support the
court’s finding that the money his current wife contri-
butes to his expenses or advances to him were gifts,
rather than loans. He also claims that the modified
alimony payment, coupled with the order to pay $1000
per month on the arrearage created by the retroactivity
for a total of $2300 per month, constitutes 89 percent
of his weekly net income.
Modification of alimony after the date of a dissolution
judgment, unless and to the extent that the decree pre-
cludes modification, is governed by General Statutes
§ 46b-86. Schwarz v. Schwarz, supra, 124 Conn. App.
476. ‘‘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. . . . The party
seeking modification bears the burden of showing the
existence of a substantial change in the circumstances.
. . . The change may be in the circumstances of either
party. . . . The date of the most recent prior proceed-
ing in which an alimony order was entered is the appro-
priate date to use in determining whether a significant
change in circumstances warrants a modification of an
alimony award.’’ (Internal quotation marks omitted.)
Rubenstein v. Rubenstein, 172 Conn. App. 370, 375,160
A.3d 419 (2017).
‘‘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. . . .
More specifically, these criteria, outlined in General
Statutes § 46b-82, require the court to consider the
needs and financial resources of each of the parties
. . . as well as such factors as the causes for the disso-
lution of the marriage and the age, health, station, occu-
pation, employability and amount and sources of
income of the parties.’’ (Internal quotation marks omit-
ted.) Schwarz v. Schwarz, supra, 124 Conn. App. 477.
When the initial alimony award was not sufficient to
fulfill the underlying purpose of the award, to ensure
the continued enjoyment of the standard of living that
the supported spouse enjoyed during the marriage, an
increase in the supporting spouse’s income, in and of
itself, may justify an increase in the award. See Dan v.
Dan, 315 Conn. 1, 15–16, 105 A.3d 118 (2014).
The defendant’s claims concerning the modification
of his alimony payments, to approximately double what
he had been paying, essentially concern whether the
court appropriately categorized the financial contribu-
tions his current wife had been providing to him. We
interpret his claim as an assertion that the court errone-
ously found an increase in his weekly net income from
$568, which was the amount he stated on his financial
affidavit, to $1193, by incorrectly assuming that his cur-
rent wife’s contributions to him, totaling approximately
$137,000, constituted gifts rather than loans that he was
obligated to repay. We disagree.
‘‘Whether money should be characterized as income
or a loan is a question of fact for the trial court. . . .
This is often a matter that turns on the credibility of
the parties and whether any documentation of the loans
was provided. Compare Zahringer v. Zahringer, [124
Conn. App. 672, 678–79, 6 A.3d 141 (2010)] (court, after
determining that parties, including father’s accountant,
were credible and that documentation had been cre-
ated, held that payments were loans), with Desai v.
Desai, 119 Conn. App. 224, 236–37, 987 A.2d 362 (2010)
(court, after determining that parties were not credible
and that documentation was lacking, held that pay-
ments were not loans).’’ (Citation omitted.) Keller v.
Keller, 167 Conn. App. 138, 152, 142 A.3d 1197, cert.
denied, 323 Conn. 922, 150 A.3d 1151 (2016).
In the present case, although the defendant asserts
that the contributions from his current wife were loans
that he would have to repay in the future and, thus,
should not be considered in the alimony calculation,
the court did not find his testimony on the subject to
be credible. No promissory note or other documentary
evidence was presented to support the defendant’s con-
tention that the payments were loans, and there was
no evidence that any terms of repayment existed or
that any repayment had ever been made or tendered
during the entire course of the defendant’s current mar-
riage—a period of approximately ten years.
In addition to finding that all the funds advanced to
the defendant by his current wife had been gifts and
not loans, the court also found that the evidence showed
that the defendant’s current wife pays the bulk of the
couple’s expenses. The court noted that the plaintiff
and his current wife led a lifestyle with a level of luxury
beyond that which the defendant could afford given the
income he reported on his financial affidavit. The court
noted that the defendant did not include on his financial
affidavit recurring deposits of funds from his current
wife into his personal bank account, which the court
also determined were gifts and not loans. The court
highlighted the fact that some of the funds that the
defendant’s current wife had given to him and spent
for his benefit came from income she received through
her position as owner and managing member in an
entity, Hampton Ventures, LLC, which owns and rents
office space within real property located at 1100 New
Britain Avenue in West Hartford. The defendant testi-
fied that in 2005, his dissolved company, R.E.T. Capital
Corporation, of which he was the sole owner, had lent
his current wife $225,000 in order to purchase this rental
property. He further testified that despite the fact that
a balloon provision in the promissory note required
payment in full by May, 2015, the loan had not been
repaid; rather, the date the note was payable had been
‘‘extended’’ to some unspecified time.
The court based its determination concerning the
financial contributions of the defendant’s current wife
on the testimony of both parties, the defendant’s finan-
cial situation, and his spending habits, which included
country club fees and the maintenance of two resi-
dences. We conclude that the court did not abuse its
discretion by factoring into its calculation of the defen-
dant’s weekly income the amounts advanced to him by
his current wife and the expenditures she had paid on
his behalf. The court concluded that the financial needs
of the defendant were less than they were at the time
of the February 20, 2007 order by reason of the necessi-
ties and amenities provided to him by his current wife
above and beyond the funds she gives to him and uses
to pay his expenses. The court was correct in consider-
ing the income of the defendant’s current wife because
it was relevant to his current expenses, a material factor
in determining his current net income and, therefore, his
ability to pay the increased alimony. See McGuinness
v. McGuinness, 185 Conn. 7, 12–13, 440 A.2d 804 (1981).
We further conclude that the court’s modified
monthly alimony order of $1300 per month plus $1000
per month on an arrearage of $16,580 is not excessive,
as the defendant’s arguments suggest, in light of the
defendant’s net monthly income of $4772 ($1193
multiplied by 4.3) and the needs and expenses of the
plaintiff, whose current weekly net income, excluding
alimony but including additional support of $186.05 per
week, a recurring gift from her son, was determined to
be $567. This order nearly equalizes the parties’
incomes, as originally intended in the dissolution
judgment.
The defendant also argues that the court failed to
take into account additional income he alleges that the
plaintiff derives from renting the parties’ former marital
home in Avon. The only evidence with respect to her
renting those premises came through the testimony of
the plaintiff and her son, Jeffrey Nappo. Both indicated
that the property had been foreclosed and there was
no longer any rental income being generated. The defen-
dant offered no contrary evidence and, viewed in light
of the evidence before the court, its failure to attribute
rental income to the plaintiff is not clearly erroneous.
II
The defendant’s second claim is that the court
improperly sanctioned him for his contempt of certain
court orders and entered additional orders to remediate
his failure to fully comply with others.10 The defendant
specifically takes issue with (1) the court’s award to the
plaintiff of attorney’s fees and travel expenses totaling
$3000, (2) the court’s remedial order that he pay 5 per-
cent interest on any portion of the plaintiff’s one-half
share of the bond money that remained unpaid after
October 31, 2017, and (3) the court’s order that he
reimburse the plaintiff $391.50 for unpaid alimony as a
result of wire transfer fees deducted by the defendant’s
bank from his alimony payments. We decline to review
the first aspect of this claim related to the award of
travel expenses and attorney’s fees because it was not
raised before the trial court. With respect to the other
aspects of the claim, we conclude that the remedial
orders pertaining to the wire transfer fees and the 5
percent interest on the unpaid balance of the plaintiff’s
share of the bond money effective November 1, 2017,
reflected a proper exercise of the court’s inherent
authority to effectuate its judgment. See, e.g., Perry v.
Perry, 156 Conn. App. 587, 595, 113 A.3d 132, cert.
denied, 317 Conn. 906, 114 A.3d 1220 (2015); O’Halpin
v. O’Halpin, 144 Conn. App. 671, 677–78, 74 A.3d 465,
cert. denied, 310 Conn. 952, 81 A.3d 1180 (2013).
A
We first address the court’s award of travel expenses
and attorney’s fees to the plaintiff, which the court
indicated were sanctions it was imposing upon finding
the defendant in contempt for failure to provide the
plaintiff with periodic reports on the status of his efforts
to obtain release of the $375,000 bond; copies of his
annual tax returns, 1099 forms, and K-1 forms by April
15 of each calendar year; and a copy of his passport.
The following additional facts are relevant to this
claim. The plaintiff sought reimbursement for and pre-
sented evidence of her travel expenses from Florida to
Connecticut on October 16, 2015, and January 15, 2016,
totaling $1929.35.11 These trips were for previously
scheduled hearings on her amended motion for con-
tempt and amended motion for modification.12 On Octo-
ber 16, 2015, the defendant appeared through counsel,
but the hearing did not go forward. On that date, the
court ordered a continuance to January 15, 2016, and
noted that the defendant ‘‘acknowledges his obligation
to appear on that date.’’ The court also reserved the
plaintiff’s ‘‘right to seek reimbursement of expenses
incurred for her trips to Connecticut for the hearing
held today and July 14, 2015 on which the [plaintiff’s
motion for modification and motion for contempt] were
scheduled to be heard.’’
On January 15, 2016, the defendant moved for a con-
tinuance, which the court granted on the condition that
he pay the plaintiff certain travel expenses as listed on
plaintiff’s exhibit 1. In its written order, the court stated:
‘‘By agreement of the parties, [the defendant] shall pay
within one week of today, the sum of $1500 to [the
plaintiff] of which $714.66 is to reimburse her for her
travel expenses to appear in court today. The balance
is subject to adjustment and will be applied toward the
cost of her return trip for the continued hearing.13 The
court continues to reserve [the plaintiff’s] right to seek
reimbursement for prior trips as previously ordered by
the court.’’ (Emphasis added; footnote added.) During
the hearing on February 18, 2016, the court inquired of
the plaintiff whether the defendant had paid her funds in
compliance with his January 15 order, and she indicated
that she had received $1500. The plaintiff further testi-
fied that she had traveled from Florida to Connecticut
a third time for the February 18, 2016 hearing. Upon
finding the defendant in contempt, the court ordered
that he pay the plaintiff an additional $1000 for travel
expenses.
The plaintiff, through counsel, also requested that
she be reimbursed for attorney’s fees of $5000 for each
contempt motion. The court, having found the defen-
dant in contempt on some, but not all, of the allegations
contained in her amended motion for contempt,
awarded the plaintiff $2000 in attorney’s fees.
On appeal, the defendant does not dispute the court’s
calculation of the amounts awarded to the plaintiff for
travel expenses and attorney’s fees. His only claim is
that it was unfair to award attorney’s fees and travel
expenses to the plaintiff because, on December 1, 2014,
she failed to appear for a prior hearing, and that the
court denied his motion for sanctions for expenses
related to the cost of preparing for that hearing.
First, we observe that the motion for sanctions to
which the defendant refers, filed on January 27, 2014,
was brought to address the plaintiff’s failure to comply
with his discovery requests and to file a financial affida-
vit, not due to her failure to appear in court on Decem-
ber 1, 2014. Second, although, throughout his appellate
brief, the defendant has failed to cite to the record, we
have conducted a thorough search of the transcripts
and the written motions presented to the trial court
and have determined that this particular justification
for denying the plaintiff’s requests for travel expenses
and attorney’s fees—that he also had incurred travel
expenses and attorney’s fees in preparation for a
December 1, 2014 hearing at which the plaintiff failed
to appear—was not adequately raised before the trial
court and, thus, is unpreserved.
On February 3, 2016, the defendant filed a motion
for attorney’s fees on which he presented no evidence,
but his counsel did argue this motion at the close of the
hearing on March 10, 2017. In his motion, the defendant
raised two claims: (1) if the court did not find the plain-
tiff in contempt, the defendant should be awarded fees
pursuant to General Statutes § 46b-87; and (2) the defen-
dant should be awarded attorney’s fees for defending
the plaintiff’s pending motions because this was the
third time the defendant had to prepare to defend simi-
lar motions filed by the plaintiff. During closing argu-
ments, however, counsel for the defendant asked the
court to award the defendant fees if it did not find
the defendant in contempt14 or if it did not grant the
plaintiff’s amended motion for modification. The court,
having found the defendant in contempt and having
granted the plaintiff’s amended motion for modifica-
tion, denied the defendant’s motion for attorney’s fees,
finding there was no basis for it.15 At no point did the
defendant seek reimbursement or claim any right of set
off for travel expenses or attorney’s fees incurred in
attending court to defend previous motions that had
been scheduled to be heard on December 1, 2014. Addi-
tionally, he did not present any evidence as to the
amount of such expenses he had incurred. Conse-
quently, the defendant is unable to challenge the court’s
order on this unpreserved ground.
B
We next address the defendant’s claim that the court
abused its discretion in ordering him to commence pay-
ing interest on the plaintiff’s share of the bond proceeds
if the bond was not released on or before October
31, 2017.
‘‘[A] trial court possesses inherent authority to make
a party whole for harm caused by a violation of a court
order, even when the trial court does not find the
offending party in contempt.’’ O’Brien v. O’Brien, 326
Conn. 81, 96, 161 A.3d 1236 (2017). In addition, it has
long been settled that a trial court has the authority to
enforce its own orders. This authority arises from the
common law and is inherent in the court’s function as
a tribunal with the power to decide disputes. See Papa
v. New Haven Federation of Teachers, 186 Conn. 725,
737–78, 444 A.2d 196 (1982). A remedial award does not
require a finding of contempt. Rather, ‘‘[i]n a contempt
proceeding, even in the absence of a finding of con-
tempt, a trial court has broad discretion to make whole
a party who has suffered as a result of another party’s
failure to comply with a court order.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Clement v.
Clement, 34 Conn. App. 641, 647, 643 A.2d 874 (1994);
see also Brody v. Brody, 153 Conn. App. 625, 636, 103
A.3d 981, cert. denied, 316 Conn. 910, 105 A.3d (2014).
We further recognize that ‘‘[a]lthough [a] court does
not have the authority to modify a property assignment,
[the] court, after distributing property, which includes
assigning the debts and liabilities of the parties, does
have the authority to issue postjudgment orders effectu-
ating its judgment.’’ (Internal quotation marks omitted.)
O’Halpin v. O’Halpin, supra, 144 Conn. App. 677–78.
‘‘[A]n order effectuating an existing judgment allows
the court to protect the integrity of its original ruling
by ensuring the parties timely compliance therewith.’’
(Internal quotation marks omitted.) Id., 677; see Perry
v. Perry, supra, 156 Conn. App. 595.
The following additional facts are relevant to this
claim. The court heard evidence that at least since the
defendant had received a letter dated July 11, 2016,
from the bonding company, he was on notice that he
needed to move to open the bankruptcy judgment to
correct the name of the entity that had posted the bond
in the bankruptcy order so that the order reflected ‘‘Tri-
State Terminals Inc.’’ instead of ‘‘Tri-State Terminals
Corp.’’ Acknowledging that he was familiar with this
letter, the defendant testified on March 9, 2017, that he
had yet to hire a lawyer or take any other action to
correct the misnomer in the bankruptcy order.
As previously noted in this opinion, on the basis of
the evidence submitted to the court for its consideration
as to why the defendant had failed to obtain the release
of the bond, the court found that the defendant had not
yet obtained the release due to the fact that the bonding
company was not required to release the funds that had
been posted to secure the issuance of the bond until
the expiration of the statute of limitations on the liabili-
ties that the bond was intended to protect against, a
period that apparently expired on or about April 16,
2016. After the passage of that date, the court found
that the release of the funds had been further delayed
due to a technical error in the statement, in a related
bankruptcy proceeding, of the legal name of the entity
controlled by the defendant that posted the collateral
funds with the bonding company and to which the
refund of the funds is payable. Although the court found
that the defendant was not in contempt, it expressed
its concern that compliance was lacking and entered
remedial orders intended to secure compliance in the
near future. In particular, the court ordered that ‘‘[i]f
for any reason the defendant has not paid the plaintiff
in full for her [one] half of the bond proceeds . . . on
or before October 31, 2017, then the unpaid portion due
to the plaintiff shall accrue interest at the rate of [5
percent] . . . per annum commencing on November
1, 2017, and continuing until the unpaid portion plus
accrued interest has been paid in full, with any partial
payments after November 1, 2017, to be applied first
to interest and then to principal.’’ The court then found
the defendant in contempt for wilfully failing to provide
the plaintiff with a written report every six months, as
ordered by the court on November 16, 2009, as to the
status of his efforts to obtain release of the bond.
Given the impediments of which the court was made
aware and the fact that over twelve years had elapsed
since the dissolution court had ordered the defendant
to obtain the release of the bond and share the proceeds
equally with the plaintiff, the court reasonably deter-
mined that the defendant, in the exercise of due dili-
gence, would be able to resolve the payment issue if
given several additional months to obtain the release
of the bond. ‘‘It would defy common sense to conclude
that, merely because a party’s violation of a court order
was not wilful, the trial court is deprived of its authority
to enforce the order.’’ AvalonBay Communities, Inc.
v. Plan & Zoning Commission, 260 Conn. 232, 241–42,
796 A.2d 1164 (2002). In fact, the defendant now admits
in his appellate brief that the bonding company has
been willing to release the bond money since December,
2017. Accordingly, we conclude that court did not abuse
its discretion in ordering the defendant to commence
paying interest on the plaintiff’s share of the bond pro-
ceeds if the bond was not released on or before October
31, 2017.16
C
The final aspect of the defendant’s claim is that the
court improperly ordered that the defendant reimburse
the plaintiff $391.50, the sum deducted from his alimony
payments by his bank after he agreed to wire transfer
alimony payments directly to the plaintiff’s bank. The
court determined that this resulted in the defendant
failing to pay the plaintiff the full amount of alimony
owed.
We find no abuse of discretion on the part of the
court in issuing this particular remedial order. Although
the court did not find the defendant in contempt for
failure to pay alimony in a timely fashion, it noted that
the parties had informally agreed to have the defendant
wire the plaintiff’s alimony payments directly to her
bank account and that each party had incurred charges
from their respective banks as a result. The court
deemed it equitable, and we agree, that each party
should be responsible for his or her own bank’s charges,
and noted that as a result of the defendant having not
directly paid his wire transfer costs, the plaintiff’s ali-
mony checks for the period of time that her payments
were wired to her bank were reduced by a total of
$391.50. This remedial order was proper in that it com-
pensated the plaintiff for a minor alimony deficiency
even though the defendant’s violation was not wilful.
‘‘Irrespective of whether a violation is wilful, the party
violating a court order properly may be held responsible
for the consequences of the violation. To hold otherwise
would shift the cost of the violation to the innocent
party.’’ O’Brien v. O’Brien, supra, 326 Conn. 101.
‘‘Although ordinarily our trial courts lack jurisdiction
to act in a case after the passage of four months from
the date of judgment; see General Statutes § 52-212a;
there are exceptions. One exception arises when the
exercise of jurisdiction is necessary to effectuate prior
judgments or otherwise enforceable orders. . . . [Our
Supreme Court has rejected a] hypertechnical under-
standing of the trial court’s continuing jurisdiction to
effectuate prior judgments. . . . [T]he trial court’s con-
tinuing jurisdiction is not separate from, but, rather,
derives from, its equitable authority to vindicate judg-
ments. . . . [S]uch equitable authority . . . [derives]
from its inherent powers . . . and is not limited to
cases wherein the noncompliant party is in contempt
. . . .’’ (Internal quotation marks omitted.) Brody v.
Brody, supra, 153 Conn. App. 635.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff did not participate in this appeal. This court entered an
order on June 28, 2018, that indicated that this appeal would be considered
solely on the basis of the defendant’s brief and appendices, and the record
in light of the plaintiff’s failure to comply with this court’s June 1, 2018
order requiring her to file a brief and appendix on or before June 15, 2018.
2
In his statement of issues in his principal brief, the defendant claims
that the court’s modification of the alimony award and its order of payments
on the resultant alimony arrearage was excessive in light of his income,
and that the court improperly treated his current wife’s contributions to his
financial support as gifts rather than loans. For ease of discussion, we will
address these claims together.
3
The court further indicated that the defendant’s ‘‘testimony that he has
no hidden assets is not credible, but the court has no direct evidence of
what assets he may have and therefore assigns no value to any assets except
those introduced into evidence.’’
4
It is apparent that this modifiable $1 per year alimony order and the
requirement of notice to the other party of any change in income or employ-
ment supports the dissolution court’s conclusion that the defendant might
one day achieve a higher level of income than the small income his Mobil
Corporation pension and social security benefits were providing him at the
time, which might justify an upward modification of alimony.
5
The court noted that despite apparent changes in the parties’ respective
social security incomes since 2007, there had been no subsequent recalcula-
tion of the appropriate amount due under the formula set forth in the 2004
dissolution judgment.
6
The orders of the court pertaining to the defendant’s American Express
credit card, passport, and credit report were a result of the plaintiff’s ongoing
attempts to obtain full disclosure of the defendant’s financial status in order
to pursue her contempt and modification motions.
7
The plaintiff also sought an award of attorney’s fees in both of her
contempt motions.
8
At the time of the hearing, both parties resided outside of Connecticut
and were required to travel to Connecticut to attend the hearing.
9
General Statutes § 46b-86, which governs modification of alimony, pro-
vides in relevant part: ‘‘No order for periodic payment of permanent alimony
or support may be subject to retroactive modification, except that the court
may order modification with respect to any period during which there is a
pending motion for modification of an alimony or support order from the
date of service of notice of such pending motion upon the opposing party
pursuant to section 52-50. . . .’’
10
The hearing on the plaintiff’s two contempt motions was commenced
on February 8, 2016. The defendant has failed to provide this court with a
transcript of the proceedings that transpired on that date in accordance
with Practice Book § 63-8. This defect in the appeal does not hamper our
review, however, because the trial court file contains a copy of a certified
transcript of the proceedings on February 8, 2016, which the defendant’s
counsel provided to the trial court at the commencement of a subsequent
trial hearing in this matter on March 9, 2017.
11
The hearing on the plaintiff’s amended motion for contempt and her
amended motion for modification previously had been continued from July
15 to October 16, 2015, with an order to the plaintiff that she serve the
defendant with a subpoena.
12
The plaintiff’s second motion for contempt was not filed until January
27, 2016.
13
The court subsequently continued the hearing to February 18, 2016.
14
The defendant claimed fees for defending the contempt motions pursu-
ant to § 46b-87, which provides, in relevant part, that ‘‘if any . . . person
is found not to be in contempt of such order, the court may award a
reasonable attorney’s fee to such person. . . .’’ (Emphasis added.)
15
Apart from the defendant’s counsel apprising the court of his hourly
rate, the court was provided with no evidence of the amount of fees being
sought relative to this litigation.
16
The defendant also appears to claim that the order of interest is improper
because, in his words, ‘‘[the bonding company] has been willing to release
the [b]ond since December, 2017, if [the plaintiff] signs the required release
form from [the bonding company]. Since [the plaintiff] has not signed the
release to date, [the defendant] was forced to file a motion to compel
postjudgment . . . on March 23, 2018.’’ The defendant did not raise this
argument before the trial court, a failing that is readily apparent in light of
the fact that the defendant also explains in his appellate brief that the
bonding company was first willing to release the bond, following a release
by the plaintiff, in December, 2017—six months after the trial court rendered
the judgment from which he now appeals. Likewise, the defendant draws
our attention to a motion to compel, which was filed by him in the trial
court approximately nine months after the court rendered the judgment
from which he now appeals, in which he asks the court to order the plaintiff
to sign the release so that the funds may be distributed in accordance with
the court’s order in the dissolution judgment. Because the plaintiff did not
raise this claim concerning the release of the bond before the trial court in
connection with the judgment from which he appeals, we decline to address
it on appeal. See Ahmadi v. Ahmadi, 294 Conn. 384, 395, 985 A.2d 319
(2009) (‘‘[a] party cannot present a case to the trial court on one theory
and then seek appellate relief on a different one’’ [internal quotation
marks omitted]).