Scalora v. Scalora ( 2019 )

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BETSY SCALORA v. JEFFREY SCALORA
(AC 40641)
Lavine, Keller and Bishop, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court, and the plaintiff cross appealed, from
the judgment of the trial court resolving several of the parties’ postdisso-
lution motions. The dissolution judgment had incorporated a settlement
agreement of the parties, which contained a nonwaiver clause and
required the defendant to pay the plaintiff periodic alimony, to pay for
certain expenses related to the education and activities of the parties’
children, and to maintain at his own expense an insurance policy on
his life for the benefit of the plaintiff and the children. The plaintiff filed
a motion for contempt, alleging, inter alia, that the defendant had failed
to pay the court-ordered alimony and to maintain a life insurance policy,
and sought reimbursement for, inter alia, certain expenses incurred for
the benefit of the parties’ children. The defendant filed three special
defenses, alleging that the motion for contempt was barred by the doc-
trines of laches and equitable estoppel, and that the plaintiff had waived
her right to proceed with the motion. Subsequently, the defendant filed
a motion for contempt, alleging that the plaintiff had improperly claimed
their younger daughter as a dependent for federal income tax purposes,
in violation of the settlement agreement. The defendant also filed a
motion for an order requesting that the court give him credit toward
any sums found owing to the plaintiff for one half of the cost he pre-
viously had paid in connection with the wedding of the parties’ older
daughter. Following a hearing on the motions, the trial court issued a
memorandum of decision rejecting the defendant’s defenses and grant-
ing in part the plaintiff’s motion for contempt with respect to the defen-
dant’s nonpayment of alimony and failure to maintain life insurance.
The court denied the remainder of the plaintiff’s motion for contempt
but issued remedial orders requiring the defendant to reimburse the
plaintiff for, inter alia, the cost incurred to maintain life insurance cover-
age on the defendant and for certain expenses related to the education
and activities of the parties’ children. The court granted in part the
defendant’s motion for contempt and held the plaintiff in contempt
for improperly claiming the dependency exceptions, but denied the
defendant’s motion for an order claiming credit for one half of the cost
of the wedding. Held:
1 The defendant could not prevail on his claim that the trial court abused
its discretion in rejecting his defenses of laches, equitable estoppel, and
waiver without first fully considering the elements of each; that court
properly determined that the nonwaiver provision in the parties’ separa-
tion agreement, which provided that either party’s failure to seek
enforcement of the agreement would not constitute a waiver of his or
her right to do so at any later time, barred all of the defendant’s defenses,
as that provision entitled the plaintiff to file her motion for contempt
at any time without regard to the issue of delay, and the defendant
failed to make any claim that the nonwaiver provision was unenforceable
or that the parties either occupied unequal bargaining positions or
engaged in sharp dealing.
2. The trial court improperly took judicial notice of the reasonable cost of
clothing in ordering the defendant to reimburse the plaintiff for expenses
she had incurred relating to the parties’ younger daughter: although
the approximate price range of various categories of clothing may be
common knowledge and the actual price of specific articles of clothing
may be readily ascertainable, the reasonableness of an allowance for
the periodic purchase of such items cannot be deemed so well known
that evidence to prove it is unnecessary, as the reasonableness of an
allowance for clothing depends on a wide range of factors and is subject
to reasonable dispute, and, therefore, whether a particular clothing
allowance is reasonable is not within the knowledge of people generally
in the ordinary course of human experience and was not the proper
subject matter of judicial notice, especially without giving the parties
an opportunity to be heard; moreover, even if it was improper for the
court to take judicial notice of the cost of a meal plan at the university
attended by the parties’ daughter at a point in time outside of her
attendance dates, that fact played no role in the court’s determination
of the defendant’s food expense arrearage and could not have prejudiced
the defendant.
3. The trial court did not abuse its discretion in denying the defendant’s
motion for an order seeking credit toward the claimed arrearages for
one half of the cost of the wedding of the parties’ older daughter; that
court’s finding that the plaintiff lacked substantial income and therefore
had not agreed to share the cost of the wedding was not clearly errone-
ous, as the plaintiff testified that she had been struggling with significant
debt around the time of the wedding and that she was in no position
to pay for one half of the cost of the wedding given her annual income
at the time, which was the same amount as the cost of the wedding
venue alone, and the defendant’s claim that the plaintiff induced him
to believe that she would credit her share of the wedding toward what
the defendant owed her was contradicted by the plaintiff’s testimony
that she never agreed to allow the defendant to do something else in
lieu of making support payments and never agreed to waive any of the
defendant’s obligations under the separation agreement.
4. The trial court abused its discretion in finding the defendant in contempt
for failing to maintain a life insurance policy at his own expense in
accordance with the parties’ settlement agreement; although the evi-
dence demonstrated that the plaintiff had purchased, with the defen-
dant’s consent, an insurance policy on his life when the defendant’s
own policy had lapsed in 2010, the record was not clear whether the
defendant also had maintained his own life insurance policy during the
relevant postjudgment period or whether the policy purchased by the
plaintiff had supplemented or replaced the defendant’s own policy, the
trial court expressly acknowledged in its memorandum of decision that
there were unanswered questions with regard to the defendant’s mainte-
nance of a life insurance policy, and, therefore, the court could not have
properly concluded that the plaintiff had sustained her burden of proving
by clear and convincing evidence that the defendant had failed to main-
tain a life insurance policy at his own expense in violation of the settle-
ment agreement.
5. This court declined to review the defendant’s claim that the trial court
abused its discretion by establishing a schedule for making payments
on the arrearage without first obtaining evidence regarding his ability
to pay; the parties focused almost entirely on the merits of the motions
at the hearing and did not present any evidence regarding their financial
circumstances at that time, and neither party filed an updated financial
affidavit or made any objection at the time of the orders that the court
had not considered their financial circumstances.
6. The defendant could not prevail on his claim that the trial court abused
its discretion in declining to award him attorney’s fees in connection
with his motion for contempt; the defendant’s sole argument was that
he should be awarded attorney’s fees if the plaintiff prevailed in her
cross appeal on her claim for attorney’s fees, and his claim necessarily
failed in light of this court’s determination that the plaintiff’s claim was
not reviewable.
The plaintiff’s claims, raised in her cross appeal, that the trial court abused
its discretion in declining to award her attorney’s fees in connection
with her motion for contempt and challenging the trial court’s interpreta-
tion of a certain provision of the parties’ separation agreement were
not reviewable, the plaintiff having failed to brief the claims adequately.
Argued December 4, 2018–officially released May 7, 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, Hon. John D.
Brennan, judge trial referee; judgment dissolving the
marriage and granting certain other relief in accordance
with the parties’ separation agreement; thereafter, the
court, Hon. Gerard I. Adelman, judge trial referee,
granted in part the plaintiff’s motion for contempt and
issued certain remedial orders, and granted in part the
defendant’s motion for contempt and motion for order,
and the defendant appealed and the plaintiff cross
appealed to this court. Reversed in part; further pro-
ceedings.
John A. Barbieri, with whom was Claudia R. Bar-
bieri, for the appellant-cross appellee (defendant).
Jeremiah J. Morytko, for the appellee-cross appel-
lant (plaintiff).
Opinion
BISHOP, J. In this marital dissolution action, the
defendant, Jeffrey Scalora, appeals from the judgment
of the trial court resolving several of the parties’ postdis-
solution motions. The defendant claims that the court
improperly (1) rejected his defenses to the motion for
contempt filed by the plaintiff, Betsy Scalora; (2) took
judicial notice of certain facts not in evidence in order-
ing him to reimburse the plaintiff for certain education
related expenses incurred for the parties’ children;1 (3)
denied his motion for an order awarding him credit
toward the unreimbursed expenses; (4) found him in
contempt for failing to maintain a life insurance policy;
(5) ordered him to pay certain sums found owing to
the plaintiff without taking into consideration his ability
to pay; and (6) declined to award him attorney’s fees
in relation to his motion for contempt.
The plaintiff cross appeals from the court’s judgment,
claiming that the court (1) abused its discretion in
declining to award her attorney’s fees and costs in rela-
tion to her motion for contempt and (2) improperly
implied a reasonableness standard into the parties’ sep-
aration agreement, which had been incorporated into
the judgment of dissolution. We agree with the defen-
dant’s second and fourth claims and decline to address
the merits of the plaintiff’s claims due to her failure to
brief them adequately. Accordingly, we affirm in part
and reverse in part the judgment of the trial court.
The following procedural history is relevant to our
resolution of the appeal and cross appeal. The court,
Hon. John D. Brennan, judge trial referee, dissolved
the parties’ marriage on February 8, 2008. At the time,
the parties’ two daughters were eighteen and fifteen
years old, respectively. The court found that the parties’
marriage had broken down irretrievably and accepted,
as fair and equitable, their written separation
agreement, which it incorporated by reference into the
dissolution judgment.
Pursuant to the separation agreement, the defendant
was required, inter alia, to pay the plaintiff periodic
alimony in a prescribed amount, to pay for the plaintiff’s
medical insurance premiums for a period of time, to
pay for certain activity and education related expenses
for the children, and to maintain, at his own expense,
an appropriate life insurance policy on his life for the
benefit of the plaintiff and the children. The agreement
also contained a nonwaiver clause providing that either
party’s failure to seek enforcement of the agreement
would not constitute a waiver of his or her right to do
so at a later time.
On September 16, 2015, the plaintiff filed a motion
for contempt alleging that the defendant had failed to
satisfy his obligations under the separation agreement.2
As clarified in her posthearing brief, the plaintiff
claimed, inter alia, unpaid alimony for the period from
2010 up until her remarriage in 2015, reimbursement
for her medical insurance premiums, reimbursement
for life insurance premiums for a policy she had taken
out on the defendant’s life from 2010 through 2014,
and reimbursement for various activity and education
related costs she had incurred for the benefit of the
children between 2010 and 2014.
On November 29, 2016, the defendant filed three
defenses to the plaintiff’s motion for contempt. First,
the defendant alleged that the plaintiff was guilty of
laches by inexcusably waiting until 2015 to file a motion
for contempt for arrearages that had begun to accrue
in 2010, thereby prejudicing him. Second, the defendant
alleged that the plaintiff was equitably estopped from
pursuing her contempt motion because he had relied
to his detriment on the plaintiff’s forbearance. Finally,
the defendant alleged that the plaintiff intentionally had
waived her right to enforce the dissolution judgment
by failing to do so earlier.
The matter was heard by the court, Hon. Gerard I.
Adelman, judge trial referee, over the course of four
days between February and May, 2017. Also, on April
20, 2017, the defendant filed a motion for contempt
alleging that the plaintiff had improperly claimed the
younger daughter as a dependent for federal income
tax purposes for the years 2009, 2011, and 2013.3 The
defendant also filed a motion for an order requesting,
inter alia, that the court give him credit for one half of
the cost of the older daughter’s 2014 wedding toward
any sums found owing to the plaintiff. By consent of
the parties, the court heard the defendant’s two motions
as part of the proceeding on the plaintiff’s motion for
contempt on May 9, 2017.
On June 27, 2017, the court issued a memorandum
of decision responding to all of the parties’ pending
motions. The court rejected the defendant’s defenses
and granted the plaintiff’s motion for contempt with
respect to the defendant’s nonpayment of alimony and
failure to maintain life insurance. The court denied the
remainder of the plaintiff’s motion but issued remedial
orders requiring the defendant to reimburse the plaintiff
for the cost of her medical insurance premiums, certain
education related expenses for the younger daughter,
and the children’s activity related expenses. As to the
defendant’s motions, the court found the plaintiff in
contempt for improperly claiming the dependency
exemptions. The court denied his claim for credit for
one half of the cost of the older daughter’s wedding.
This appeal and cross appeal followed. Additional
procedural history will be set forth as necessary.
I
THE DEFENDANT’S APPEAL
A
The defendant first claims that the court abused its
discretion in rejecting his defenses without having fully
considered the elements of each. Because the court
properly determined that the defendant’s defenses were
barred by the nonwaiver clause of the parties’ separa-
tion agreement, any inadequacy in the court’s consider-
ation of the elements of each defense is inconsequential
to our analysis. We therefore reject this claim.
Initially, we set forth the applicable standard of
review. Ordinarily, the determination of whether a
plaintiff’s claim is barred by the doctrines of laches,
equitable estoppel, or waiver is a question of fact and,
therefore, subject to the clearly erroneous standard of
review. See Kasowitz v. Kasowitz, 140 Conn. App. 507,
513, 59 A.3d 347 (2013); Culver v. Culver, 127 Conn.
App. 236, 244–45, 17 A.3d 1048, cert. denied, 301 Conn.
929, 23 A.3d 724 (2011); Ford v. Ford, 72 Conn. App.
137, 141–42, 804 A.2d 215 (2002). In the present case,
however, the court relied on the legal effect of the
nonwaiver clause of the parties’ separation agreement
in rejecting the defendant’s defenses. The parties do
not claim, and we do not find any basis for concluding,
that this clause is ambiguous. Consequently, our stan-
dard of review is plenary. See Dow-Westbrook, Inc. v.
Candlewood Equine Practice, LLC, 119 Conn. App. 703,
711–12, 989 A.2d 1075 (2010) (‘‘[T]he interpretation and
construction of a written contract present only ques-
tions of law, within the province of the court . . . so
long as the contract is unambiguous and the intent of
the parties can be determined from the agreement’s
face. . . . [T]he construction and legal effect of the
contract [is] a question of law for the court.’’ [Internal
quotation marks omitted.]).
Before discussing the legal effect of the nonwaiver
clause in the present case, we briefly review the law
governing the defenses of laches, equitable estoppel,
and waiver. ‘‘Laches is an equitable defense that con-
sists of two elements. First, there must have been a
delay that was inexcusable, and, second, that delay
must have prejudiced the defendant.’’ (Internal quota-
tion marks omitted.) Kasowitz v. Kasowitz, supra, 140
Conn. App. 513. ‘‘Equitable estoppel is a doctrine that
operates in many contexts to bar a party from asserting
a right that it otherwise would have but for its own
conduct. . . . [E]stoppel always requires proof of two
essential elements: the party against whom estoppel is
claimed must do or say something calculated or
intended to induce another party to believe that certain
facts exist and to act on that belief; and the other party
must change its position in reliance on those facts,
thereby incurring some injury.’’ (Citation omitted; inter-
nal quotation marks omitted.) Culver v. Culver, supra,
127 Conn. App. 244. ‘‘Waiver is the intentional relin-
quishment of a known right. . . . Waiver need not be
express, but may consist of acts or conduct from which
a waiver may be implied. . . . In other words, waiver
may be inferred from the circumstances if it is reason-
able to do so.’’ (Internal quotation marks omitted.) Car-
pender v. Sigel, 142 Conn. App. 379, 388, 67 A.3d
1011 (2013).
In the present case, not only did the parties’ separa-
tion agreement expressly foreclose waiver by the mere
passage of time, it affirmatively granted to each party
the right to enforce the dissolution judgment at any
later time. Pursuant to paragraph 15.1 of the agreement,
‘‘[n]o failure to assert any right, or to enforce any provi-
sion of [the] [a]greement shall operate as a waiver of
such right or provision, and either party shall be fully
privileged to assert or enforce such right or provision
at any later time.’’ (Emphasis added.) On the basis of
the parties’ express agreement, the plaintiff was entitled
to file her motion for contempt at any time without
regard to the issue of delay. Consequently, the defen-
dant’s defense of laches necessarily fails.
The defendant’s equitable estoppel and waiver
defenses similarly must fail. As this court has observed,
albeit in the context of commercial agreements, an
enforceable nonwaiver clause ‘‘bar[s] the application
of waiver and estoppel defenses unless a party estab-
lishes the existence of unequal bargaining positions or
‘sharp dealing.’ See Christensen v. Cutaia, [211 Conn.
613, 619–20, 560 A.2d 456 (1989)]; S.H.V.C., Inc. v. Roy,
[188 Conn. 503, 507, 450 A.2d 351 (1982)]; see also Web-
ster Bank v. Oakley, 265 Conn. 539, 549–51, 830 A.2d
139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603,
158 L. Ed. 2d 244 (2004).’’ Milford Paintball, LLC v.
Wampus Milford Associates, LLC, 137 Conn. App. 842,
853 n.8, 49 A.3d 1072 (2012). The defendant does not
contend that the nonwaiver clause in the present case
is unenforceable or that the parties either occupied
unequal bargaining positions or engaged in ‘‘sharp deal-
ing,’’ and the court made no such findings.4 Conse-
quently, the defendant’s waiver and estoppel defenses
are barred.
B
The defendant next claims that the court improperly
took judicial notice of certain facts in ordering him to
reimburse the plaintiff for education related expenses
incurred for the benefit of the younger daughter.5 We
agree.
We begin by stating our standard of review. ‘‘A trial
court’s determination as to whether to take judicial
notice is essentially an evidentiary ruling, subject to an
abuse of discretion standard of review. . . . In order
to establish reversible error, the defendant must prove
both an abuse of discretion and a harm that resulted
from such abuse. . . . In reviewing a trial court’s evi-
dentiary ruling, the question is not whether any one of
us, had we been sitting as the trial judge, would have
exercised our discretion differently . . . . Rather, our
inquiry is limited to whether the trial court’s ruling was
arbitrary or unreasonable.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) In re Nata-
lie J., 148 Conn. App. 193, 207, 83 A.3d 1278, cert. denied,
311 Conn. 930, 86 A.3d 1056 (2014).
‘‘The doctrine of judicial notice excuses the party
having the burden of establishing a fact from introduc-
ing formal proof of the fact. Judicial notice takes the
place of proof.’’ (Internal quotation marks omitted.)
Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 730
n.24, 652 A.2d 496 (1995). ‘‘There are two types of facts
considered suitable for the taking of judicial notice:
those [that] are common knowledge and those [that]
are capable of accurate and ready demonstration. . . .
Courts must have some discretion in determining what
facts fit into these categories. It may be appropriate to
save time by judicially noticing borderline facts, so long
as the parties are given an opportunity to be heard.’’
(Citation omitted; internal quotation marks omitted.)
Ferraro v. Ferraro, 168 Conn. App. 723, 732, 147 A.3d
188 (2016); see Conn. Code Evid. § 2-1.6 ‘‘Notice to the
parties [however] is not always required when a court
takes judicial notice. Our own cases have attempted to
draw a line between matters susceptible of explanation
or contradiction, of which notice should not be taken
without giving the affected party an opportunity to be
heard . . . and matters of established fact, the accu-
racy of which cannot be questioned, such as court files,
which may be judicially noticed without affording a
hearing.’’ (Internal quotation marks omitted.) Ferraro
v. Ferraro, supra, 732; see also Conn. Code Evid. § 2-
2 (b).7
The following additional procedural history is rele-
vant to our resolution of the defendant’s claim. Pursuant
to paragraph 3.3 of the separation agreement, the defen-
dant was required to pay for ‘‘the post-secondary educa-
tion in college or for any further learning and training
beyond high school for each child, including tuition,
room, board, books, fees, clothes and necessary trans-
portation and travel costs.’’ During the proceeding on
her motion for contempt, the plaintiff argued that this
provision clearly and unambiguously required the
defendant to pay, without limitation, for any and all of
the children’s food and clothing expenses incurred
while they were at college or graduate school. The court
disagreed and, instead, imported the notion that such
expenses, if subject to reimbursement, must have been
reasonable when incurred.
As to food expenses, the court first determined that,
in light of the fact that the younger daughter had been
enrolled in a meal plan offered by her university, the
provision was ambiguous as to whether the use of the
term ‘‘board’’ encompassed food purchased outside the
meal plan. The court concluded that, ‘‘construing the
language of the separation agreement in a ‘sensible
manner’ . . . the [defendant] should not be required
to reimburse the [plaintiff] for each and every grocery
purchase.’’ (Citation omitted.) The court further noted,
however, that there may have been instances where,
although at university, the younger daughter was not
able to utilize her meal plan and therefore required
funds with which to purchase food elsewhere, such as
while traveling to and from school or when her commit-
ments as part of the university’s soccer team prevented
her from accessing the campus dining hall. The court
found that, ‘‘[i]n these situations, it would appear that
the [defendant] could reasonably be expected to pay
for [her] food pursuant to the terms of the separation
agreement.’’
As to clothing expenses, the court determined that
paragraph 3.3 was ambiguous as to whether the
‘‘clothes’’ referenced therein were limited to items nor-
mally associated with college living, as opposed to, for
example, formal wear to attend family weddings. Con-
struing the relevant contract language in a ‘‘fair and
reasonable’’ manner, the court concluded that the
defendant’s obligation was limited to providing each
child ‘‘with a reasonable wardrobe for her educa-
tional needs.’’
Having construed paragraph 3.3 as limiting the defen-
dant’s obligation to reasonable food and clothing costs,
the court next sought to determine what such costs
would be. The court first noted that the plaintiff had
not offered any evidence on this issue; rather, she had
only presented invoices for what she had actually
spent.8 The record reflects, as well, that neither party
requested that the court take judicial notice of what
might be reasonable expenditures for food and clothing
for the relevant time periods.9 Nevertheless, the court
decided that, in order ‘‘[t]o reach an equitable resolution
of the conflict and in light of the lack of evidence as
to what reasonable costs might be for food and clothing,
the court [would] take judicial notice as to what such
costs might be.’’10 The court neither gave the parties
notice of its intention to take judicial notice nor pro-
vided them with an opportunity to be heard on the
subject.
Regarding the younger daughter’s food expenses
while on campus, the court took judicial notice of the
cost of a typical meal plan for the 2016–17 academic
year at the University of Pennsylvania,11 which she had
attended from 2010 to 2014.12 As to her food expenses
when off campus, such as when traveling to and from
school or while engaged in soccer related activities, the
court found that ‘‘the sum of $75 weekly as a supplement
is reasonable . . . .’’ As to food expenses when she
remained on campus between semesters for athletics,
the court found that ‘‘perhaps another $600’’ would be
reasonable. As for clothing expenses, the court found
that ‘‘a clothing allowance of $200 per month [for each
child] is . . . more than adequate . . . .’’ The court
did not state the evidentiary basis for these findings.
Presumably, the court took judicial notice of these
‘‘facts’’ as matters of common knowledge and, conse-
quently, perceived no need to explicate the basis for
its findings. See Nichols v. Nichols, 126 Conn. 614, 621,
13 A.2d 591 (1940) (‘‘Most matters which the court may
notice fall into one of two classes, those which come
to the knowledge of men generally in the course of the
ordinary experience of life, and are therefore in the
mind of the trier, or those which are generally accepted
by mankind as true and are capable of ready demonstra-
tion by a means commonly recognized as authoritative.
. . . As to matters falling within the first class, obvi-
ously there is no occasion to introduce evidence. As
to those falling within the second class, it may, in some
cases, be the duty of counsel to provide the court with
a means of ascertaining them . . . .’’ [Citation omitted;
emphasis added.]).
On the basis of these judicially noticed ‘‘facts,’’13 the
court calculated the younger daughter’s annual food
expenses beyond her meal plan to be $3900 and her
annual clothing expenses to be $1680.14 Crediting the
defendant for funds he had provided directly to the
younger daughter,15 the court determined the defen-
dant’s arrearage for food and clothing expenses from
2010 through 2015 to be $13,915.16
The defendant first claims that the court abused its
discretion in taking judicial notice of the cost of a meal
plan at the University of Pennsylvania. The defendant
argues that it was improper for the court to take judicial
notice of the dining cost during the 2016–17 academic
year because the younger daughter had attended the
university between 2010 and 2014, when such costs
were lower.17 The defendant also argues that it was
improper for the court to have taken judicial notice of
this fact without first affording the parties an opportu-
nity to be heard. This claim requires little discussion.
Even if we assume, arguendo, that it was improper
for the court to take judicial notice of the cost of the
university’s meal plan at a point in time outside of the
younger daughter’s dates of attendance, the cost found
by the court by judicial notice ultimately played no role
in its determination of the defendant’s food expense
arrearage. In calculating the food expenses for which
the defendant was responsible, the court expressly indi-
cated that these expenses were for the cost of food
beyond the meal plan. Although it is unclear why the
court deemed it necessary to take judicial notice of the
cost of a meal plan, it is clear that any error the court
made in taking notice of it could not have prejudiced
the defendant. Consequently, we reject this claim.
The defendant also claims that the court abused its
discretion in taking judicial notice of the reasonable
cost of clothing.18 The defendant argues that the court
improperly and arbitrarily found, as a matter of judicial
notice, that a reasonable monthly clothing allowance
for a college student is $200. He also argues that it was
improper to notice such a ‘‘fact’’ without affording the
parties notice and an opportunity to be heard.19 We
agree with the defendant’s arguments in this regard.
That a particular clothing allowance is reasonable is
neither ‘‘within the knowledge of people generally in the
ordinary course of human experience’’ nor ‘‘generally
accepted as true and capable of ready and unquestion-
able demonstration.’’ Conn. Code Evid. § 2-1 (c).
Although the approximate price range of various cate-
gories of clothing may be common knowledge and the
actual price of specific articles of clothing may be
readily ascertainable, the reasonableness of an allow-
ance for the periodic purchase of such items cannot be
deemed ‘‘so well known that evidence to prove [it] is
unnecessary . . . .’’ (Internal quotation marks omit-
ted.) Daley v. J.B. Hunt Transport, Inc., 187 Conn.
App. 587, 591 n.5, A.3d (2019). Whether a given
allowance is reasonable depends on a wide range of
factors and is thus ‘‘subject to reasonable dispute.’’
Conn. Code Evid. § 2-1 (c). For example, a person
whose profession demands that she wear formal attire
that tends to be more expensive than casual attire may
reasonably require a relatively larger clothing allow-
ance, but if she already has a substantial wardrobe
of suitable clothing, such a large allowance may be
unwarranted. Thus, what constitutes a reasonable
clothing allowance is not the proper subject matter of
judicial notice, ‘‘and certainly not without giving the
parties an opportunity to be heard.’’ Moore v. Moore,
173 Conn. 120, 122–23, 376 A.2d 1085 (1977) (‘‘[w]hether
a child’s clothing expenses increase ‘commensurately’
with her age is open to argument’’ and, consequently,
‘‘[t]his ‘fact’ is one of which judicial notice should not
be taken’’); Federal Deposit Ins. Corp. v. Napert-Boyer
Partnership, 40 Conn. App. 434, 442, 671 A.2d 1303
(1996) (‘‘[W]hether a financial institution is comparable
to another financial institution and, based on that com-
parison, whether a substituted interest rate is reason-
able is not the proper subject matter of judicial notice.
Those facts are in dispute and the burden is placed on
the plaintiff to present evidence showing that substi-
tuted rate was reasonable.’’). Accordingly, we conclude
that the court abused its discretion by taking judicial
notice of an amount it deemed to be a reasonable cloth-
ing allowance without giving the parties notice of its
intention to do so.20
We further conclude that this error necessarily was
harmful given the court’s reliance on this improperly
noticed ‘‘fact’’ in determining the amount of the clothing
expense arrearage.
C
The defendant next claims that the court abused its
discretion in denying his motion for an order seeking
credit for one half of the cost of the older daughter’s
wedding toward the claimed arrearages. We disagree.
We begin by stating our standard of review. ‘‘[O]ur
courts have recognized that the decision to allow or
disallow credit lies within the sound discretion of the
trial court.’’ (Internal quotation marks omitted.) Rostad
v. Hirsch, 148 Conn. App. 441, 464, 85 A.3d 1212 (2014),
appeals dismissed, 317 Conn. 290, 116 A.3d 307 (2015);
accord Culver v. Culver, supra, 127 Conn. App. 248.
‘‘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. . . . Furthermore, [t]he trial
court’s findings [of fact] are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Merk-Gould v.
Gould, 184 Conn. App. 512, 516–17, 195 A.3d 458 (2018).
The following additional procedural history is rele-
vant to our resolution of this claim. At trial, the defen-
dant testified that the plaintiff had told him that ‘‘she
would be responsible for half of the wedding’’—what-
ever the total cost was—and that she had offered to
give him credit for this amount toward his obligations
under the separation agreement. The plaintiff, however,
testified that she never agreed to pay for any portion
of the wedding, let alone share the cost of it with the
defendant, and that she never agreed, whether in writing
or otherwise, to waive any of the terms of the
agreement. Moreover, the plaintiff testified that she had
explicitly told the defendant that she could not afford to
share the cost of the wedding. Specifically, she testified
that, after she and the defendant met with the manager
of a prospective wedding venue, which was projected
to cost approximately $25,000,21 she told the defendant
that there was ‘‘no way [she could] contribute to this.’’
According to the plaintiff, the defendant responded,
‘‘I’ve got this. Don’t worry. I just need to know how
much.’’
In his posthearing brief, the defendant argued that
the plaintiff had acknowledged responsibility for one
half of the wedding expenses and that, had he known
that the plaintiff planned to file a motion for contempt
after the wedding, ‘‘he would have bargained [for] a
reduction in the alimony and child support arrearage
in lieu of payment for [the] plaintiff’s share of the wed-
ding.’’22 On this basis, the defendant claimed a credit
for one half of the $60,436 he had purportedly spent
on the wedding. In rejecting this claim, the court noted
the parties’ conflicting testimony and found the plaintiff
more credible. Specifically, the court found that,
‘‘[g]iven [the plaintiff’s] lack of any substantial indepen-
dent income, it does not seem very plausible that she
would have agreed to share the cost of the wedding
. . . .’’
On appeal, the defendant first claims that the court’s
finding that the plaintiff lacked ‘‘substantial’’ income is
clearly erroneous. We disagree. The plaintiff testified
that she had been ‘‘struggling with significant debt’’
around the time of the wedding, having had to resort
to credit cards and loans from her parents in order to
meet the children’s needs after the defendant’s support
payments became sporadic.23 The plaintiff further testi-
fied that her annual income at the time had been only
about $25,000 and that, consequently, she had not been
in a position to pay for half of the wedding. Given this
testimony and the fact that the cost of the wedding
venue alone was anticipated to be $25,000, the court’s
finding that the plaintiff lacked ‘‘substantial’’ income to
share the cost of the wedding is not clearly erroneous.24
The defendant also claims that the court abused its
discretion ‘‘by making the assumption that [the] plaintiff
could not credit’’ him for a share of the wedding costs.
The defendant argues that the plaintiff had ‘‘intended
to induce [him] to believe that she would credit [these
costs toward] what he owed her, and [that he had] acted
on that belief, to his detriment.’’ We are not persuaded.
Preliminarily, we note the lack of any apparent con-
nection between the defendant’s argument and his par-
ticular abuse of discretion claim. Even if this connection
were readily discernable, however, the claim still fails.
Integral to the defendant’s argument is his assertion that
his ‘‘testimony, which was undisputed by the plaintiff,
clearly articulate[d] that the plaintiff would allow a
credit for the wedding expenses . . . .’’ (Emphasis
added.) This assertion is belied by the record. The plain-
tiff testified that she never agreed to allow the defendant
to ‘‘do something else in lieu of’’ making support pay-
ments and never agreed to waive any of the defendant’s
obligations under the separation agreement. Conse-
quently, this claim also fails.
D
The defendant next claims that the court abused its
discretion in finding him in contempt for failing to main-
tain a life insurance policy at his own expense. The
defendant argues that the court improperly determined
that the plaintiff had sustained her burden of proof
where the court noted in its memorandum of decision
that the plaintiff’s claim was ‘‘not entirely clear’’ and
that there remained certain ‘‘unanswered questions’’
regarding the claim. We agree with the defendant.
‘‘[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 con-
stituted a court order that was sufficiently clear and
unambiguous so as to support a judgment of contempt.
. . . This is a legal inquiry subject 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 discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, 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.
‘‘The abuse of discretion standard applies to a trial
court’s decision on a motion for contempt. . . . A find-
ing of contempt is a question of fact, and our standard
of review is to determine whether the court abused its
discretion in [finding] that the actions or inactions of
the [party] were in contempt of a court order. . . . To
constitute contempt, a party’s conduct must be wilful.
. . . Noncompliance alone will not support a judgment
of contempt. . . . A finding of indirect civil contempt
must be supported by clear and convincing evidence.
. . .
‘‘[A] court may not find a person in contempt without
considering the circumstances surrounding the viola-
tion to determine whether such violation was wilful.
. . . [A] contempt finding is not automatic and depends
on the facts and circumstances underlying it. . . . [I]t
is well settled that the inability of [a] defendant 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. . . . It is [then] within the sound
discretion of the court to deny a claim of contempt
when there is an adequate factual basis to explain the
failure.’’ (Citations omitted; internal quotation marks
omitted.) Bolat v. Bolat, 182 Conn. App. 468, 479–80,
190 A.3d 96 (2018).
The following additional procedural history is rele-
vant to our resolution of this claim. Paragraph 6.1 of
the separation agreement provides in relevant part: ‘‘By
way of additional support, the [defendant] shall obtain
and maintain in full force and effect, at his own expense,
life insurance on his life in the amount of [$250,000],
with the [plaintiff] as the primary beneficiary. The bene-
ficiaries of this policy shall be designated as follows:
$125,000 for the [plaintiff]; and $125,000 to a trust for
the children with each child to receive an equal share
of the life insurance benefit. Upon the youngest living
child of the parties reaching the age of twenty-three
. . . or completing a college education . . . whichever
is the first to occur, the [defendant] may change the
beneficiary of $125,000 of the total policy value. Upon
the [defendant’s] alimony obligation terminating, then
the [defendant] may change the beneficiary on the
remaining $125,000. . . .’’
During the hearing on her motion for contempt, the
plaintiff testified that the defendant had failed to main-
tain his own life insurance policy, as required by para-
graph 6.1 of the separation agreement, for the years
2010 through 2014. She testified that the defendant had
admitted to her that he had not complied with this
requirement and that, consequently, she took out her
own policy on the defendant’s life, with his consent.25
According to the plaintiff, she paid $165.72 for a partial
year of coverage in 2010 and then $662.88 annually for
the succeeding four years, and the defendant never
reimbursed her for any of it. The plaintiff also testified
that she had taken out a loan in order to pay for the
policy and that she had paid $375 per year in interest
on the loan.
During cross examination, the defendant initially
appeared not to dispute that he had failed to maintain
his own life insurance policy. When asked whether he
had maintained the $250,000 policy specified in the sep-
aration agreement, the defendant responded that this
had been the plaintiff’s responsibility and that he had
cooperated with her in obtaining the policy by allowing
his blood to be drawn. After later conceding that it had
been his responsibility under the agreement to maintain
an appropriate policy, the defendant appeared to
reverse course and suggest that he had, indeed, pur-
chased such policy. More specifically, when again asked
whether he recalled ever having purchased the requisite
$250,000 policy, the defendant responded, ‘‘[g]reater
than that.’’
In its memorandum of decision, the court found that
‘‘the defendant [had] acknowledged that the policy he
had at the time of the dissolution of the marriage lapsed
in 2010, and that the plaintiff [had] purchased a substi-
tute policy at her expense.’’ The court further found,
however, that the plaintiff’s claim was ‘‘not entirely
clear,’’ noting that the defendant had testified that he
had ‘‘maintained life insurance above the required
amount throughout the postjudgment period’’26 but had
‘‘offered no specifics [and had admitted that] he allowed
the plaintiff to purchase a policy on his life as well.’’
More specifically, the court stated: ‘‘It is not entirely
clear from the testimony and evidence whether [the
plaintiff’s] policy supplemented [the defendant’s] cover-
age or was a replacement. If it was a replacement policy,
for how long was it necessary if the defendant also had
life insurance coverage?’’ The court then concluded
that, ‘‘[g]iven some of the unanswered questions on this
issue, [the] reduced amount [claimed in the plaintiff’s
posthearing brief of $2817.24] is a fair claim.’’27 Without
any further discussion, the court held that ‘‘the plaintiff
[had] met her burden of proof for a finding of
contempt.’’
We agree with the defendant that the court improp-
erly concluded that the plaintiff had met her burden of
proof. Although the plaintiff’s motion for contempt did
not specify the manner in which the defendant had
allegedly violated paragraph 6.1, it is apparent from her
testimony that her theory of the case was that, during
the period at issue, the defendant had failed to maintain
any life insurance coverage whatsoever.28 Consequently,
the plaintiff, as the party seeking a finding of indirect
civil contempt, had the burden of establishing by clear
and convincing evidence that the defendant had not
had his own life insurance policy in effect during the
relevant timeframe. See Brochard v. Brochard, 185
Conn. App. 204, 221, 196 A.3d 1171 (2018). Although
the court credited the plaintiff’s testimony that she had
purchased her own policy on the defendant’s life, it
was unable to determine whether her policy replaced
a policy that the defendant had allowed to lapse—which
would be consistent with her testimony that the defen-
dant had not maintained his own policy during the
period in question—or merely ‘‘supplemented [the
defendant’s] coverage’’—which, contrary to the plain-
tiff’s testimony, would imply that the defendant had
indeed maintained his own coverage during the relevant
period, although perhaps not in the amount required
by the separation agreement. By characterizing this
issue as an ‘‘unanswered question,’’ the court, in effect,
acknowledged that it was not persuaded by the plain-
tiff’s testimony that the defendant had entirely failed
to maintain a life insurance policy of any kind. In light
of this implicit acknowledgment, the court could not
properly have concluded that the plaintiff had sustained
her burden of proving by clear and convincing evidence
that the defendant had failed to maintain a life insurance
policy at his own expense. The court, therefore, abused
its discretion in finding the defendant in contempt for
noncompliance with paragraph 6.1 of the agreement.
Accordingly, the judgment of contempt must be
reversed with respect to the issue of life insurance
coverage, and the resultant remedial order must be
vacated.
E
The defendant next claims that the court abused its
discretion by crafting an arrearage payment schedule
‘‘without obtaining any evidence of his current or future
ability to pay.’’ We decline to review this claim.
The following additional procedural history is rele-
vant to our resolution of the defendant’s claim. The
court found the defendant in contempt for nonpayment
of alimony and failure to maintain life insurance and
awarded the plaintiff $80,042 in unpaid alimony and
$2817.24 as reimbursement for the expenses she
incurred in maintaining her own insurance policy on
the defendant’s life. The court denied the remainder of
the plaintiff’s motion but found that the defendant owed
her $2929 as reimbursement for the plaintiff’s medical
insurance premiums, $13,915 as reimbursement for the
younger daughter’s food and clothing expenses, and
$4676.60 as reimbursement for the children’s activity
related costs. As to the defendant’s motions, the court
found the plaintiff in contempt for improperly claiming
the dependency exemptions and determined that she
owed him $2812.50. Offsetting this amount against the
defendant’s total obligation, the court calculated the
net sum owed to the plaintiff to be $101,567.34 and
issued remedial orders setting the rate and terms of
repayment. More specifically, the court ordered the
defendant to make minimum monthly payments to the
plaintiff of $1000 beginning August 1, 2017. The court
further ordered that, ‘‘[i]f the full amount is not paid in
full on or before July 31, 2019, a penalty of 10 percent
per annum will accrue on the full amount as of August
1, 2017, regardless of what the actual balance due might
be and shall continue to accrue as simple interest until
the full amount of the judgment plus any penalty pay-
ments are paid in full . . . .’’ The court made no finding
regarding the defendant’s financial capacity to comply
with its orders.
‘‘As a general rule, the financial awards in a marital
dissolution case should be based on the parties’ current
financial circumstances to the extent reasonably possi-
ble.’’ (Internal quotation marks omitted.) Gervais v.
Gervais, 91 Conn. App. 840, 846, 882 A.2d 731, cert.
denied, 276 Conn. 919, 888 A.2d 88 (2005). Thus, this
court has held it to be an abuse of discretion for a trial
court to issue financial orders in a marital dissolution
case without considering the parties’ financial circum-
stances where the parties had submitted evidence on
the subject; see id. (trial court erred in failing to con-
sider defendant’s financial affidavit in ruling on plain-
tiff’s postdissolution motion to terminate, reduce, or
modify his alimony obligation to defendant); Cuneo v.
Cuneo, 12 Conn. App. 702, 709, 533 A.2d 1226 (1987)
(trial court erred in refusing to consider defendant’s
updated financial affidavit in issuing orders regarding
unallocated alimony and support and division of parties’
assets and liabilities); or had been denied the opportu-
nity to do so. See Szczerkowski v. Karmelowicz, 60
Conn. App. 429, 435, 759 A.2d 1050 (2000) (where court
had led parties to believe that it would not make any
financial orders in ruling on certain postdissolution
motions, it was abuse of discretion to issue financial
orders without having before it parties’ financial affi-
davits).
In the present case, neither party filed an updated
financial affidavit or offered any evidence of his or
her financial circumstances at that time.29 Nor did the
parties make any objection at the time of the orders that
the court had not considered their financial conditions.
Thus, both parties effectively invited the court to focus
solely on the merits of their motions without reference
to their current finances. ‘‘If counsel has full knowledge
of improper conduct (or what he perceives to be
improper procedure) he cannot remain silent, hoping
for a favorable ruling, and then be heard to complain
when the order is unsatisfactory.’’ (Internal quotation
marks omitted.) Bielen v. Bielen, 12 Conn. App. 513,
515, 531 A.2d 941 (1987). Under these circumstances, we
decline to review the defendant’s claim.30 See Tufano
v. Tufano, 18 Conn. App. 119, 124–26, 556 A.2d 1036
(1989) (declining to review plaintiff’s claim, that trial
court erred in imposing contempt sanctions given her
lack of financial ability to purge herself by payment,
where she offered no evidence regarding her current
financial condition and did not object to court proceed-
ing without such evidence); Bielen v. Bielen, supra,
515 (declining to review defendant’s claim that court
improperly refused to consider parties’ current financial
positions in ruling on postdissolution motion for attor-
ney’s fees because, although this normally would consti-
tute error, neither party offered evidence thereon or
objected to court proceeding without such evidence).
F
Finally, the defendant claims that the court abused
its discretion in declining to award him attorney’s fees
in relation to his motion for contempt. The defendant’s
sole argument in support of this claim is that he should
be awarded attorney’s fees if the plaintiff prevails in
her cross appeal on her claim for attorney’s fees.
Because we decline to review the plaintiff’s claim; see
part II of this opinion; the defendant’s claim necessar-
ily fails.
II
THE PLAINTIFF’S CROSS APPEAL
In her cross appeal, the plaintiff claims that the court
(1) abused its discretion in declining to award her attor-
ney’s fees and costs in relation to her motion for con-
tempt and (2) improperly implied a reasonableness
standard into paragraph 3.3 of the parties’ separation
agreement.31 We decline to review these claims because
they are inadequately briefed.
Regarding attorney’s fees, the plaintiff argues that,
absent some showing by the defendant that he had been
unable to pay the full amount of alimony due, ‘‘the
plaintiff should have been made whole for having to
bring this action to recover alimony . . . .’’ The plain-
tiff addresses this claim in less than one page of her
appellate brief, provides no citation to authority, and
provides no analysis of the claim.
Regarding the interpretation of paragraph 3.3 of the
separation agreement, the plaintiff first challenges the
court’s determination that this provision was ambigu-
ous. Rather than explicate why the court’s underlying
reasoning was erroneous or engage in any meaningful
analysis of the language of paragraph 3.3, the plaintiff
simply cites to the text of the provision, acknowledges
the correctness of the court’s recitation of the boil-
erplate law of contract interpretation, and asserts in
a conclusory fashion that the agreement clearly and
unambiguously made the defendant ‘‘responsible [for]
virtually every expense the children incurred until age
[twenty-three].’’
The plaintiff also challenges the court’s construction
of the separation agreement as limiting the defendant’s
responsibility to reasonable food and clothing
expenses. The plaintiff argues that, even if the
agreement is ambiguous, the court erred in failing to
consider evidence that the defendant had paid every
bill received from the plaintiff from the date of dissolu-
tion until 2010. According to the plaintiff, this evidence
demonstrates that the intent and expectation of the
parties was that the defendant was required to perform
his obligations ‘‘without limitation on the reasonable-
ness of expenses . . . .’’ The plaintiff devotes one para-
graph to this argument and cites no legal authority to
support it.
In sum, the plaintiff has failed to brief adequately the
claims raised in her cross appeal, and, consequently,
we deem them abandoned. ‘‘Claims are inadequately
briefed when they are merely mentioned and not briefed
beyond a bare assertion. . . . Claims are also inade-
quately briefed when they . . . consist of conclusory
assertions . . . with no mention of relevant authority
and minimal or no citations from the record . . . .’’
(Internal quotation marks omitted.) Estate of Rock v.
University of Connecticut, 323 Conn. 26, 33, 144 A.3d
420 (2016). ‘‘We repeatedly have stated that [w]e are
not required to review issues that have been improperly
presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. . . . The parties
may not merely cite a legal principle without analyzing
the relationship between the facts of the case and the
law cited.’’ (Citation omitted; internal quotation marks
omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d
868 (2016). Accordingly, we affirm the judgment of the
trial court with respect to the issues raised by the plain-
tiff’s cross appeal.
The judgment is reversed in part with respect to the
arrearage order attributable to clothing expenses and
the case is remanded for further proceedings consistent
with this opinion; the judgment of contempt is reversed
in part as to the defendant’s failure to maintain a life
insurance policy, and the resultant remedial order is
vacated; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
In the statement of issues in his principal appellate brief, the defendant
asserts, as two separate claims of error, that the court abused its discretion
by (1) taking judicial notice of irrelevant facts and (2) failing to give the
parties notice of its intent to take judicial notice. For ease of discussion,
we address these claims together.
2
More specifically, the plaintiff alleged nonpayment of alimony, failure
to maintain life insurance, and failure to pay the children’s education related
costs, in the total amount of $174,110.
3
The parties’ separation agreement provided that, when only one child
could be claimed as a dependent, the defendant was entitled to claim the
dependency exemption in odd numbered tax years, and the plaintiff was
entitled to claim it in even numbered years.
4
Although the defendant acknowledges in his appellate brief the existence
of the nonwaiver clause, he fails to analyze its effect on the viability of
his defenses.
5
The defendant appears to challenge the taking of judicial notice as it
pertains to the education related expenses of both children. The court,
however, ultimately found that the defendant’s transfer of funds to the older
daughter ‘‘more than covered’’ her expenses during the relevant time period.
The court therefore denied the plaintiff’s request for reimbursement of the
older daughter’s education related expenses. Because the court resolved
this matter in the defendant’s favor, he cannot claim to be aggrieved by any
errors the court may have made in calculating the older daughter’s expenses.
See In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005) (‘‘As a general
rule, a party that prevails in the trial court is not aggrieved. . . . Moreover,
[a] party cannot be aggrieved by a decision that grants the very relief sought.
. . . Such a party cannot establish that a specific personal and legal interest
has been specially and injuriously affected by the decision.’’ [Internal quota-
tion marks omitted.]). Consequently, to the extent the defendant’s claim on
appeal implicates issues relating to the older daughter in particular, he lacks
standing to challenge, and we lack subject matter jurisdiction to review,
that portion of the claim. See id. Accordingly, we limit our review to the
court’s taking of judicial notice as it relates to the younger daughter.
6
Section 2-1 of the Connecticut Code of Evidence provides in relevant
part: ‘‘A court may, but is not required to, take judicial notice of matters of
fact . . . . A judicially noticed fact must be one not subject to reasonable
dispute in that it is either . . . within the knowledge of people generally
in the ordinary course of human experience, or . . . generally accepted as
true and capable of ready and unquestionable demonstration. . . .’’
7
Section 2-2 (b) of the Connecticut Code of Evidence provides: ‘‘The court
may take judicial notice without a request of a party to do so. Parties are
entitled to receive notice and have an opportunity to be heard for matters
susceptible of explanation or contradiction, but not for matters of estab-
lished fact, the accuracy of which cannot be questioned.’’
8
The plaintiff presented several hundred sales receipts evidencing her
actual food and clothing related expenditures, the majority of which were
admitted as full exhibits.
9
At the hearing on April 12, 2017, the court indicated that it was consider-
ing applying a ‘‘reasonableness test’’ to the plaintiff’s claim for reimburse-
ment of clothing expenses. In an interlocutory order issued later that day,
the court requested that the parties offer evidence ‘‘as to what each party
might consider a reasonable sum to be spent on clothing on a monthly
or annual basis.’’ Neither party offered any such evidence, although the
defendant, in his posthearing brief, did refer the court to the Internal Revenue
Service’s 2012 national standards for food, clothing and other items, which,
according to the defendant, lists the clothing expense for a family of three
as $193 per month.
10
In support of its decision to decide this issue despite the plaintiff’s
failure to present evidence regarding reasonableness, the trial court cited
this court’s statement in Commissioner of Transportation v. Larobina, 92
Conn. App. 15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816
(2005), that, ‘‘[w]hen faced with the constraints of incomplete information,
a court cannot be faulted for fashioning an award as equitably as possible
under the circumstances.’’ We note that, unlike in Larobina, the trial court
in the present case was presented with a surfeit of evidence regarding the
plaintiff’s actual food and clothing related expenditures; see footnote 8 of
this opinion; but determined that many of these expenditures were unrea-
sonable.
11
Specifically, the court noted that a search of the university’s website
had disclosed a dining cost of $5086 for the 2016–17 academic year.
12
The defendant asserts in his appellate brief that the court also took
judicial notice of educational expenses at the University of Connecticut and
argues that this was improper because neither child attended that university.
The defendant misconstrues the court’s memorandum of decision. In its
decision, the court stated that it could take judicial notice of the cost of a
typical college meal plan. In support of this proposition, the court quoted
parenthetically from the decision in Morris v. Morris, Superior Court, judi-
cial district of Fairfield, Docket No. FA-XX-XXXXXXX-S (May 30, 2006), in
which the court stated that it had taken ‘‘judicial notice of the published
annual rates for undergraduate tuition, fees, room and board for a full-time,
in-state student at the University of Connecticut as published on the official
[university] website . . . .’’ It is clear in this context that the court in the
present case was relying on Morris for a general principle of law—not for
any specific, judicially noticed facts. Indeed, the court went on to note
that the younger daughter had attended the University of Pennsylvania and
proceeded to enumerate the various fees and expenses published on that
university’s website. Thus, the defendant’s argument that the court improp-
erly took judicial notice of the University of Connecticut’s fees lacks a
factual foundation, and we therefore reject it.
13
The court also took judicial notice of the length of each semester at
the University of Pennsylvania for the 2017–18 academic year, finding it to
be ‘‘approximately eighteen weeks, including fall and spring break periods.’’
14
Specifically, the court determined that the younger daughter’s ‘‘food
allowance above and beyond the meal plan provided would be approximately
$1350 a semester, considering the $75 weekly allowance for the eighteen
week semester schedule, plus perhaps another $600 to cover food between
semesters when school was not in session and when the daughter remained
at college for athletic reasons. That would total approximately $2790 a
semester for food and clothing, or $5580 each year.’’ The court did not
indicate why it had limited its determination of her food allowance to the
cost beyond her meal plan, but the plaintiff does not claim in her cross
appeal that this finding was in error.
15
Specifically, the court found that the defendant had provided her $14,755
in 2010; $100 in 2011; $2920 in 2012; $3645 in 2013; $2220 in 2014; and $5100
in 2015.
16
Specifically, the court determined that, ‘‘[f]or calendar year 2010, the
defendant would have overpaid and owes nothing, but for 2011, he would
owe $5480; for 2012, $2660; for 2013, $1935; for 2014, $3360; and for 2015,
$480.’’ (Footnote omitted.)
17
The defendant asserts in his appellate brief that the trial court took
judicial notice of educational expenses for the University of Pennsylvania
for the calendar year 2011. The defendant is again mistaken. Nowhere in
the court’s memorandum of decision does the court mention educational
expenses at the university in 2011. The court explicitly stated that it was
taking judicial notice of ‘‘[t]he costs of attending the University of Pennsylva-
nia for the 2016–2017 academic year . . . .’’ Thus, the defendant’s argument
that the court improperly took judicial notice of the university’s 2011 dining
cost lacks an evidentiary foundation.
18
The defendant also appears to argue that the court abused its discretion
in failing to take judicial notice of the Internal Revenue Service’s 2012
national standards for clothing, to which the defendant had referred the
court in his posthearing brief. See footnote 9 of this opinion. We disagree.
The record reveals that at no time during the hearing did either party ask
the court to take judicial notice of any facts. Section 2-1 (b) of the Connecti-
cut Code of Evidence expressly provides that ‘‘[a] court may, but is not
required to, take notice of matters of fact, in accordance with subsection
(c) [of § 2-1].’’ (Emphasis added.); see also De Luca v. Park Commissioners,
94 Conn. 7, 10, 107 A. 611 (1919) (‘‘The doctrine of judicial notice is not a
hard and fast one. It is modified by judicial discretion. . . . Courts are not
bound to take judicial notice of matters of fact. Whether they will do so or
not depends on the nature of the subject, the issue involved and the apparent
justice of the case.’’ [Internal quotation marks omitted.]). Consequently,
even if we assume, arguendo, that the defendant’s reference to the national
standards in his posthearing brief could be construed as a request for the
court to take judicial notice of such standards, the court was under no
obligation to do so. Accordingly, we reject the defendant’s argument.
19
Additionally, the defendant argues that the court abused its discretion
by making unfounded assumptions regarding when the younger daughter
was at school versus at home, as well as when and how often she was
unable to utilize her meal plan. Although the defendant frames this issue
as one of abuse of judicial discretion in taking judicial notice, in substance,
he appears to assert a claim of evidentiary insufficiency, arguing that the
plaintiff ‘‘failed to present any evidence as to dates or times when the children
were home, traveling or at athletic events, except as general testimony as
to school years.’’ Contrary to the defendant’s assertion, there was evidence
presented during the proceeding beyond ‘‘general testimony as to school
years.’’ The plaintiff testified that, although the younger daughter normally
came home for Christmas, ‘‘[s]ometimes she was on tournaments.’’ The
plaintiff also testified that, although the academic year at the University of
Pennsylvania ends in May or June, she ‘‘stayed on campus, because she was
an athlete’’ and participated in ‘‘soccer camps and whatnot.’’ The plaintiff
further testified that the younger daughter’s schedule as a collegiate soccer
player—which required her to train and practice daily, play in games, and
travel—sometimes interfered with her ability to utilize her meal plan. More
specifically, she testified that the younger daughter trained and studied until
late hours, ‘‘and so, a lot of times the cafeteria wasn’t available to her, and
she wasn’t able to get there on time and balance the schedule that she had,
so I supplemented her food.’’ According to the plaintiff, the younger daughter
was involved in soccer throughout her time at the University of Pennsylvania.
The defendant’s analysis of this issue is devoid of any discussion of this or
any other evidence and fails to include the applicable standard of review
or citations to any legal authority. We therefore conclude that this issue is
inadequately briefed, and, accordingly, we decline to review it. See Estate
of Rock v. University of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016).
20
Although it would appear to be similarly improper for the court to take
judicial notice of what it deemed to be a reasonable allowance for food
beyond the younger daughter’s meal plan, the defendant did not challenge
this aspect of the court’s decision in his principal appellate brief. On the
issue of the food expense arrearage, the defendant initially raised only two
claims. First, the defendant claimed, in part 2 (a) of his brief, that the court
improperly ‘‘use[d] information from a school not attended . . . [for] years
of attendance which are not the years of school attendance by the minor
children.’’ Second, he claimed that the ‘‘parties . . . were not notified by
the trial court that it intended to use the resources it chose to take judicial
notice of, as set forth in [part] 2, above, and, therefore, were not given an
opportunity to refute the information cited.’’ (Emphasis added.) In his reply
brief, the defendant claims for the first time that it was improper for the
court to take judicial notice of what it deemed to be a reasonable food
allowance for the younger daughter while at university between semesters.
‘‘[I]t is well established . . . that [c]laims . . . are unreviewable when
raised for the first time in a reply brief. . . . Our practice requires an
appellant to raise claims of error in his original brief, so that the issue as
framed by him can be fully responded to by the appellee in its brief, and
so that we can have the full benefit of that written argument.’’ (Internal
quotation marks omitted.) Medeiros v. Medeiros, 175 Conn. App. 174, 190
n.12, 167 A.3d 967 (2017). Accordingly, we decline to review this claim.
21
The plaintiff testified that the family of the older daughter’s fiance´ had
been willing to pay for half of the cost of the wedding venue. The defendant
testified, however, that he had paid the entire cost of the venue, which was
in fact $29,260.
22
We note the apparent inconsistency between this argument and the
defendant’s testimony that the plaintiff had, in fact, agreed to give him credit
for the wedding costs.
23
The plaintiff testified that she had borrowed a total of $65,000 from her
parents between 2010 and 2015.
24
The defendant also appears to argue that this finding does not reasonably
support the court’s conclusion—that it was unlikely the plaintiff would have
agreed to share the cost of the wedding—because her lack of a substantial
income does not necessarily mean that she was ‘‘not able to contribute
anything to the cost of the wedding.’’ (Emphasis in original.) Although there
may be some logic to this argument, the defendant’s position in the trial
court was not that the plaintiff had agreed to contribute to the wedding
expenses to the extent she was financially able; his position was that she
had agreed to be responsible for one half of whatever he spent on the
wedding. Given that the plaintiff’s annual income at the time was only
$25,000, and that the cost of the wedding venue alone was anticipated to
be $25,000, it was reasonable for the court to deem it unlikely that she
would have agreed to split the cost of the wedding. Moreover, ‘‘[t]he trial
judge, as the finder of fact in this case, was the sole arbiter of credibility.
[I]t is the exclusive province of the trier of fact to weigh the conflicting
evidence, determine the credibility of witnesses and determine whether to
accept some, all or none of a witness’ testimony. . . . Thus, if the court’s
dispositive finding . . . was not clearly erroneous, then the judgment must
be affirmed.’’ (Internal quotation marks omitted.) Levinson v. Lawrence,
162 Conn. App. 548, 561–62, 133 A.3d 468 (2016).
25
More specifically, the plaintiff testified that she had told the defendant
that he was supposed to be paying for a life insurance policy but that she
would pay for it if he would cooperate with her in obtaining the policy.
26
We note that there is no evidence in the record indicating when the
defendant supposedly purchased this policy. The only reasonable interpreta-
tion of the defendant’s testimony is that he claimed that he had, at some
point, purchased a policy in excess of the $250,000 required by the separa-
tion agreement.
27
As the court noted, during the proceeding, the plaintiff appeared to be
seeking reimbursement for both the policy premiums and loan interest,
which the court calculated as amounting to $5817.24. It is unclear how the
court arrived at this figure. Even assuming that the plaintiff had incurred
the full $375 of interest for the partial year of coverage in 2010, the most
she could claim would be $4692.24. Ultimately, however, the plaintiff did
not pursue the claim for interest. In her posthearing brief, she requested
reimbursement for the policy premiums only, which amounted to $2817.24.
28
When explicitly asked whether the defendant had kept a life insurance
policy in force during the period at issue, the plaintiff responded, ‘‘[n]o, he
did not.’’ Nothing in her testimony suggested that the defendant had violated
paragraph 6.1 of the separation agreement by maintaining an inadequate
policy.
29
The only financial affidavits in the record are those filed by the parties
at the time of the dissolution of their marriage in 2008.
30
The defendant also appears to take issue with the particular terms of
the remedial order. To the extent he intended to raise this as a separate
claim, we deem it abandoned. The defendant’s discussion of the issue lacks
any citation to relevant authority and is limited to a single sentence: ‘‘There
is no justification for this lump sum award and the penalty.’’ We therefore
conclude that this claim is inadequately briefed and, accordingly, decline
to review it. See Estate of Rock v. University of Connecticut, 323 Conn. 26,
33, 144 A.3d 420 (2016).
31
In her appellate brief, the plaintiff appears to claim that the court also
improperly implied a reasonableness standard into paragraph 3.2 of the
separation agreement, which provides in relevant part: ‘‘By way of additional
child support, the [defendant] shall be responsible for all activity costs for
both of the parties’ children . . . until each child reaches the age of twenty-
three . . . . Said activity costs shall include but not be limited to all soccer
and other athletic expenses, transportation and travel costs, including the
purchase of a safe and reliable automobile for each child, all costs of
attending a private preparatory school and all other costs for the girls’
activities.’’ The plaintiff appears to argue that the court improperly deter-
mined this provision to be ambiguous and, therefore, erred in implying
a reasonableness standard into it. The plaintiff misconstrues the court’s
memorandum of decision. In its decision, the court explicitly determined that
paragraph 3.2 was unambiguous and required the defendant to reimburse the
plaintiff for ‘‘all activity related expenses’’ that she had incurred. (Emphasis
added.) The court made no mention of any implicit reasonableness require-
ment. Thus, the plaintiff’s claim has no basis in the record, and, accordingly,
we reject it.