Rubenstein v. Rubenstein , 172 Conn. App. 370 ( 2017 )

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JEFFREY RUBENSTEIN v. BONNIE RUBENSTEIN
(AC 38137)
Sheldon, Beach and Pellegrino, Js.
Argued January 17—officially released April 18, 2017
(Appeal from Superior Court, judicial district of New
London, Hon. Hadley W. Austin, judge trial referee
[dissolution judgment]; Moukawsher, J. [motion for
modification].)
Michael J. Cartier, for the appellant (defendant).
Sandra M. McDonough, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, Bonnie Rubenstein,
appeals from the judgment of the trial court modifying
the periodic alimony order that she previously had been
ordered to pay to the plaintiff, her former husband,
Jeffrey Rubenstein. Although the defendant’s brief is
not a model of clarity, her claims on appeal can be
distilled as follows. The defendant claims that the trial
court erred in modifying the alimony order because (1)
it improperly relied upon the defendant’s receipt of an
inheritance as the substantial change in circumstances
upon which it based said modification, (2) it errone-
ously concluded that the plaintiff’s financial circum-
stances had worsened since 2006, and (3) it improperly
changed the character of the alimony award when it
ordered an increased periodic order of alimony instead
of the lump sum that the plaintiff had requested. We
disagree with all of the defendant’s claims, and there-
fore affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our discussion. ‘‘In March, 1996, the plaintiff
filed an action seeking to dissolve the parties’ three and
one-half year marriage. In September, 1997, while the
dissolution action was pending, the defendant removed
the parties’ minor son from Connecticut in derogation
of the court’s orders. . . . A few months after the dis-
appearance of the defendant, on December 5, 1997,
the court, Hon. Hadley W. Austin, judge trial referee,
dissolved the parties’ marriage and, after finding that
the plaintiff had accumulated considerable debt in the
search for his son, ordered the defendant to pay alimony
and child support to the plaintiff. The alimony order
stated specifically that ‘[t]he defendant shall pay to the
plaintiff the amount of $50 per week as alimony, without
prejudice.’ The whereabouts of the defendant and the
child were not known until 2002, when they were dis-
covered by federal law enforcement officers and
returned to Connecticut.
‘‘Following the defendant’s return to the jurisdiction,
both parties filed motions to modify the December,
1997 alimony and child support award. Following a July
11, 2006 hearing at which both parties testified, the
court, Gordon, J., on November 16, 2006, filed a memo-
randum of decision construing the parties’ motions to
modify as motions for de novo review of the alimony
order. The court concluded that ‘[b]oth the plaintiff and
the defendant have good earning capacities, but the
plaintiff’s financial situation was more dire, and more-
over, it was caused by the conduct of the defendant. It
is only equitable that she assists his support through a
continuing order of alimony. Therefore, the court
[orders that] the defendant shall pay to the plaintiff, as
alimony, $50 per week until the death of either party.
. . .’ ’’ (Footnote omitted.) Rubenstein v. Rubenstein,
107 Conn. App. 488, 491–93, 945 A.2d 1043, cert. denied,
289 Conn. 948, 960 A.2d 1037 (2008). The defendant
appealed the trial court’s 2006 alimony order, which
this court affirmed. Id.
In 2015, the court, Moukawsher, J., revisited the ali-
mony order when the parties again filed dueling motions
to modify. Following an evidentiary hearing, the trial
court issued a memorandum of decision wherein it
found that there had been a substantial change in cir-
cumstances that justified a modification of the order.
After considering the parties’ financial circumstances
in accordance with the relevant statutory factors set
forth in General Statutes § 46b-82, the court modified
the periodic order from $50 per week to $200 per week.1
Thereafter, the defendant moved for articulation of the
trial court’s decision, which was denied. This appeal
followed.
We begin by setting forth our standard of review. ‘‘An
appellate court will not disturb a trial court’s orders in
domestic relations cases unless the court has abused
its discretion or it is found that it could not reasonably
conclude as it did, based on the facts presented. . . .
In determining whether a trial court has abused its
broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action. . . .
‘‘Trial courts have broad discretion in deciding
motions for modification. . . . Modification of ali-
mony, after the date of a dissolution judgment, is gov-
erned by General Statutes § 46b-86. . . . 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 circum-
stances of either party. . . . The party seeking modifi-
cation 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 proceeding in
which an alimony order was entered is the appropriate
date to use in determining whether a significant change
in circumstances warrants a modification of an alimony
award. . . .
‘‘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 . . . § 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 dissolution of the marriage
and the age, health, station, occupation, employability
and amount and sources of income of the parties.’’
(Internal quotation marks omitted.) Schwarz v.
Schwarz, 124 Conn. App. 472, 476–77, 5 A.3d 548, cert.
denied, 299 Conn. 909, 10 A.3d 525 (2010).
‘‘Although financial orders in family matters are gen-
erally reviewed for an abuse of discretion . . . this
court applies a less deferential standard when the deci-
sion of the trial court is based not on an exercise of
discretion but on a purported principle of law. . . .
Notwithstanding the great deference accorded the trial
court in dissolution proceedings, a trial court’s ruling
. . . may be reversed if, in the exercise of its discretion,
the trial court applies the wrong standard of law.’’ (Cita-
tions omitted; internal quotation marks omitted.) Hor-
nung v. Hornung, 323 Conn. 144, 152, 146 A.3d 912
(2016).
With the foregoing principles in mind, we turn to the
defendant’s claims on appeal.
I
First, the defendant claims that the trial court erred
in basing its finding of a substantial change in circum-
stances on an inheritance that she received as a result
of the death of her third husband. We disagree.
In examining the circumstances of the parties since
the last alimony order in 2006, the trial court noted that
the defendant’s financial circumstances had substan-
tially changed since then in that her assets had
increased from approximately $100 to $1 million as a
result of her receipt of an inheritance from her third
husband’s estate. The court also determined that there
had been a substantial change in the plaintiff’s financial
circumstances since the 2006 alimony order, namely,
that the plaintiff was ‘‘out of work, still in debt and out
of his home.’’ The trial court found that, in 2008, the
plaintiff ‘‘became disabled from all work.’’ The court
further found that, in 2006, the plaintiff resided in a
house that belonged to his parents, and that he was
supposed to inherit that house, but that that house
was sold to partially reimburse the plaintiff’s father for
expenses incurred in searching for the parties’ minor
child. Consequently, the plaintiff ‘‘now lives in a far
inferior home.’’ On those bases, the court concluded
that there had been a substantial change in the plaintiff’s
circumstances that warranted a modification of the ali-
mony order.
The defendant claims that the trial court’s consider-
ation of her inheritance is contrary to the law prescribed
in Dan v. Dan, 315 Conn. 1, 105 A.3d 118 (2014), wherein
our Supreme Court held that ‘‘when the sole change
in circumstances is an increase in the income of the
supporting spouse, and when the initial award was and
continues to be sufficient to fulfill the intended purpose
of that award, we can conceive of no reason why the
supported spouse, whose marriage to the supporting
spouse has ended and who no longer contributes any-
thing to the supporting spouse’s income earning efforts,
should be entitled to share in an improved standard of
living that is solely the result of the supporting spouse’s
efforts.’’ (Emphasis omitted.) Id., 14–15.
The court’s holding in Dan is inapposite to this case.
Here, the trial court’s decision cannot reasonably be
construed as relying solely on the change in the defen-
dant’s financial circumstances based upon the receipt
of the inheritance. A fair reading of the decision in
this case reveals that the principal basis for the court’s
finding of a substantial change in circumstances was
the worsening of the plaintiff’s circumstances, specifi-
cally the complete loss of his earning capacity and the
loss of his residence. The court found that because the
plaintiff’s financial situation had worsened since 2006,
he had an increased need for support. The defendant’s
argument that the trial court acted in contravention of
the holding in Dan is thus unavailing.
II
The defendant next claims that the court erroneously
concluded that the plaintiff’s ‘‘station of life’’ and ‘‘sta-
tion of debt’’ had worsened since the 2006 alimony
order. To the contrary, the defendant argues that the
court found that the plaintiff no longer owed a debt to
his father for expenses that had been incurred in the
search for the parties’ minor child and that, unlike in
2006, the plaintiff was finally able to meet his weekly
expenses. We disagree.
After it found a substantial change in circumstances,
the court undertook an analysis of the factors enumer-
ated in § 46b-82 to determine the new alimony order.
In so doing, the court compared the parties’ current
financial circumstances to their circumstances in 2006.
As for the plaintiff’s circumstances, the court found,
inter alia, that, in 2008, the plaintiff ‘‘became disabled
from all work.’’ The court noted that the plaintiff also
had been required to sell the home in which he had
been residing in order to partially reimburse his father
for expenses incurred in the search for the minor child.
The court reasoned: ‘‘[The plaintiff] says he is spending
every cent he receives in alimony and disability pay-
ments on the most rudimentary living expenses—about
$370 a week. The evidence indicates that [the plaintiff]
paid off over $250,000 of the debt [that he owed to his
father as a result of searching for his child] and that
[the defendant] has paid him around $48,000 in alimony.
The debt at issue in the original order was around
$500,000. This means about $200,000 is left. Given [the
defendant’s] current finances, it would hardly hurt her
and would rescue [the plaintiff] from the brink of penury
if she paid an additional $150 per week.’’
The defendant’s claim that the court found that the
plaintiff no longer owed a debt to his father is belied
by the court’s written decision, wherein it expressly
found that the plaintiff’s outstanding debt to his father
totaled approximately $200,000. Although the court
acknowledged the partial reduction of the plaintiff’s
debt to his father since 2006, it explained: ‘‘[P]aying
part of the debt significantly lowered [the plaintiff’s]
station in life so he is hardly better off.’’ The court
expressly rejected the defendant’s argument that the
plaintiff’s circumstances had not worsened since he
was able now to meet his weekly expenses. The court
stated that: ‘‘It also makes no difference that [the plain-
tiff] is now living within his limited means when he was
not in 2006. This has reduced his station in life.’’ The
defendant does not challenge on appeal the factual
bases for the court’s finding in this regard, but, rather,
suggests that the evidence should be viewed from a
different perspective. We disagree. The trial court’s
determination that the plaintiff’s financial circum-
stances had worsened as a result of his total loss of
earning capacity and the fact that he was forced to
sell his residence to pay a portion of his debt, while a
significant portion of that debt remained outstanding,
is supported by the record and is legally and logically
sound. We, thus, disagree with the defendant that the
trial court erred in so finding.
III
Finally, the defendant claims that the court improp-
erly changed the character of the alimony award when
it increased the periodic order of alimony instead of
awarding the lump sum requested by the plaintiff. The
trial court explained: ‘‘[The plaintiff’s] request for a
lump sum payment is rejected. The [alimony] order
is for needed support. If [the plaintiff] remarried or
inherited money, his financial circumstances might sub-
stantially improve. In the meantime, [the defendant’s]
inheritance will likely shrink. This means a different
award may be appropriate in the future and that any
lump sum logically calculated today might prove inequi-
table tomorrow.’’
The defendant argues that the court improperly
‘‘changed the character of the alimony from repayment
of an alleged debt to one of support of the plaintiff.’’
In so arguing, the defendant ignores the stated purpose
of the 2006 order, which was ‘‘to assist [the plaintiff’s]
support.’’ To be sure, the court considered the ‘‘monu-
mental debt’’ sustained by the plaintiff in assessing his
need for support. The 2006 order is clear, however,
that the alimony was for the continuing support of the
plaintiff, not to repay that debt of approximately
$500,000 at a rate of $50 per week. The court’s order
increasing the periodic order, which is also based upon
the plaintiff’s ‘‘needed support,’’ is entirely consistent
with the expressed purpose of the 2006 order. As noted,
the trial court is vested with wide discretion in fashion-
ing alimony orders. The court acted well within its dis-
cretion in modifying the periodic order, and, in fact, in
so doing, entered an order that was more beneficial to
the defendant than a lump sum order.
The judgment is affirmed.
In this opinion the other judges concurred.
1
As with the 2006 order, the trial court ordered the alimony to last until
the death of either party. The court added here that it would also be modifi-
able upon cohabitation pursuant to General Statutes § 46b-86 (b).