Carten v. Carten ( 2021 )

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DONALD GEORGE CARTEN, JR. v. JUDY
JUNYING CARTEN
(AC 41858)
Elgo, Suarez and DiPentima, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving her marriage to the plaintiff. The defendant claimed that the
trial court erred in declining to award her alimony. Held that the trial
court properly exercised its broad discretion in declining to make an
award of alimony to the defendant: the court considered the statutory
(§ 46b-82) factors in determining whether alimony should be awarded,
assessed the credibility of the parties’ trial testimony, finding certain
testimony of the defendant to be not credible, and, based on the evidence
presented, found that the parties were able to continue the standard of
living to which they were accustomed during the marriage, considering
the defendant’s average gross income, education and employability, as
well as the division of marital property, and the defendant did not
challenge any of the factual findings that supported the court’s decision
not to award alimony.
Argued January 13—officially released March 30, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven and tried to the court, Tindill, J.;
judgment dissolving the marriage, from which the
defendant appealed to this court; thereafter, the court,
Tindill, J., denied the defendant’s motion for articula-
tion; subsequently, this court granted the defendant’s
motion for review, and the court, Tindill, J., issued an
articulation. Affirmed.
Jeffrey D. Ginzberg, for the appellant (defendant).
Maria F. McKeon, for the appellee (plaintiff).
Opinion
DiPENTIMA, J. The defendant, Judy Junying Carten,
appeals from the judgment of the trial court dissolving
her marriage to the plaintiff, Donald George Carten, Jr.
The plaintiff claims on appeal that the court should
have awarded her alimony. We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to this appeal. The parties were married on June
27, 1999, in Orange and had two minor children at the
time of the dissolution. In February, 2017, the plaintiff
commenced this dissolution action. The court dissolved
the marriage on June 26, 2018, finding that it had broken
down irretrievably, and that the defendant ‘‘[was] more
at fault for the irretrievable breakdown of the marriage
than the plaintiff.’’ The court did not award alimony to
either party and divided the marital property between
the parties. Additionally, the court found the following:
‘‘[T]he defendant wilfully violated the automatic orders
. . . and the May 15, 2017 court orders . . . The plain-
tiff’s pendente lite motion for contempt . . . is granted.
The defendant shall pay the reasonable attorney’s fees
and costs associated with the preparation and prosecu-
tion of the motion for contempt.’’ This appeal followed.
During the pendency of this appeal, the defendant
filed a motion for articulation regarding the court’s deci-
sion to make no award of alimony. The trial court denied
the motion, and the defendant filed a motion for review
with this court. This court granted the defendant’s
motion and ordered the trial court to ‘‘articulate what
the parties’ earnings and/or earning capacities were at
the time of judgment, as well as the factual and legal
basis for its determination that neither party would be
awarded alimony with reference to the factors set forth
in General Statutes [§] 46b-82 (a).’’ The trial court
responded to this order, stating: ‘‘At the time of judg-
ment, the court determined that the [plaintiff] had an
annual gross earning capacity of $350,000 . . . and a
current income of $41,184 . . . . His sole source of
income at the time of judgment was severance and
unemployment compensation. At the time of judgment,
the court determined that the [defendant] had an annual
gross income of $150,000. . . . In order to determine
its alimony order, the court considered the factors enu-
merated in § 46b-82, assessed the credibility of the par-
ties’ testimony at trial, reviewed and considered the
proposed orders . . . and the parties’ written closing
argument . . . and reviewed the evidence before it.
‘‘Based on this review . . . the court determined
. . . that it was within the court’s discretion to decline
to award alimony to either party; that an award of ali-
mony, given the conduct of the defendant . . . would
be unfair and inequitable; that based on the credible
evidence before the court, the parties are able to con-
tinue to enjoy the standard of living to which they were
accustomed during the marriage; that during the parties’
eighteen year marriage, they were gainfully employed,
made good financial decisions and investments, accu-
mulated substantial savings, planned well for their
respective retirements, and planned well for the financ-
ing of the children’s postsecondary educational pur-
suits; that the [defendant] was at fault for the break-
down of the marriage . . . that the parties were in good
health at the time of the trial; that both parties are
well educated with significant employment experience,
work history, and employability . . . that the [defen-
dant] came to the marriage with approximately $20,000
more than the [plaintiff] [and that] [t]he parties grew
their estate together during the marriage with steady
employment, ample income, and financial acumen . . .
in spite of the [defendant’s] spending and hoarding hab-
its and lack of accountability for moneys spent once
the [plaintiff] filed for divorce; and that the division of
property . . . and other assets, as well as the agreed
upon parenting plan . . . did not warrant an award of
alimony to either party.’’
The standard of review in domestic relations cases
is well established. ‘‘[T]his court will not disturb trial
court orders unless the trial court has abused its legal
discretion or its findings have no reasonable basis in
the facts. . . . As has often been explained, the founda-
tion 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 . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Bor-
kowski v. Borkowski, 228 Conn. 729, 739, 638 A.2d 1060(1994). ‘‘Appellate review of a factual finding, therefore,
is limited both as a practical matter and as a matter of
the fundamental difference between the role of the trial
court and an appellate court. . . . 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.) Anderson v. Anderson, 160 Conn. App.
341, 344, 125 A.3d 606 (2015). ‘‘In determining whether
a trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action.’’ (Internal
quotation marks omitted.) Merk-Gould v. Gould, 184
Conn. App. 512, 516, 195 A.3d 458 (2018).
According to the defendant, ‘‘[t]his is a case in which
the trial court should have at least awarded nominal
alimony.’’ In support of her claim, the defendant asserts
that ‘‘the court focused on the defendant’s alleged bad
behavior . . . gave scant attention to the issue of ali-
mony and why it decided not to award even nominal
alimony in a long-term marriage involving middle-aged
people . . . [and] gave no attention to the defendant’s
sublimating herself for the plaintiff’s financial better-
ment during the marriage and the plaintiff’s superior
earning capacity.’’1 (Footnote omitted.) The plaintiff
argues in response that the court properly applied the
statutory provisions and considered the evidence
before it. We agree with the plaintiff.
As the court stated in its articulation, it considered
‘‘the factors enumerated in § 46b-82, assessed the credi-
bility of the parties’ testimony at trial . . . and
reviewed the evidence before it’’ in determining that
no award of alimony should be made. Section 46b-82
(a) provides in relevant part: ‘‘In determining whether
alimony shall be awarded . . . the court shall consider
the evidence presented by each party and shall consider
the length of the marriage, the causes for the . . . dis-
solution of the marriage . . . the age, health, station,
occupation, amount and sources of income, earning
capacity, vocational skills, education, employability,
estate and needs of each of the parties and the award,
if any, which the court may make pursuant to section
46b-81, and, in the case of a parent to whom the custody
of minor children has been awarded, the desirability
and feasibility of such parent’s securing employment.’’
In its memorandum of decision, the court made the
following findings: ‘‘The [defendant] is more at fault for
the irretrievable breakdown of the marriage than the
[plaintiff]. . . . Based on the credible evidence before
the court and considering the factors required by § 46b-
82, an award of alimony for either party is unwarranted.
. . . The defendant’s testimony regarding the $20,000
received by the parties from her mother, the source of
the shoebox money ($13,380), the rental of the . . .
beach houses . . . and income from those beach
houses is not credible.’’2 In its articulation, the court
also found that ‘‘the parties are able to continue to enjoy
the standard of living to which they were accustomed
during the marriage . . . the [defendant] was at fault
for the breakdown of the marriage . . . the parties
were in good health at the time of the trial; that both
parties are well-educated with significant employment
experience, work history, and employability . . . [t]he
parties grew their estate together during the marriage
with steady employment, ample income, and financial
acumen . . . in spite of the [defendant’s] spending and
hoarding habits and lack of accountability for moneys
spent once the [plaintiff] filed for divorce; and [because
of] the division of property . . . and other assets, as
well as the agreed upon parenting plan,’’ no award of
alimony was warranted. The defendant challenges none
of the factual findings that supported the court’s deci-
sion not to award alimony. Further, § 46b-82 (a) pro-
vides in relevant part that, ‘‘[i]n determining whether
alimony shall be awarded . . . the court shall consider
the evidence presented by each party’’ and also directs
the court to consider the statutory factors; this is what
the court did. Accordingly, the court did not abuse its
discretion by declining to award alimony to the defen-
dant based on its consideration of the evidence and
factors set forth in § 46b-82 (a).
Furthermore, the cases cited by the defendant are
clearly distinguishable from the present case. In Casey
v. Casey, 82 Conn. App. 378, 844 A.2d 250 (2004), the
opening sentence of this court’s opinion sets the stage
as to why it does not support the defendant’s position:
‘‘This case represents one of the very rare matrimonial
cases in which a disappointed party successfully argues
that the financial orders entered incident to a dissolu-
tion action exceed the broad discretion of the trial
court.’’ (Emphasis added.) Id., 379. In Casey, the parties
were married in June, 1996, and the plaintiff husband
filed a dissolution action in May, 2001. Id., 380–81. At
the time of the dissolution, the plaintiff was fifty-two
years old and the defendant was fifty-four years old. Id.,
381. The trial court found that, ‘‘[a]s to the breakdown
of the marriage . . . although both parties’ conduct
ultimately caused the breakdown, the plaintiff’s sexual
infidelities initiated the breakdown and were the pri-
mary cause of the failure of the marriage.’’ Id., 381–82.
The court made no award of alimony but did distribute
the principal assets of the parties. Id., 382. In reviewing
the order of the trial court, this court held that ‘‘the
financial orders were logically inconsistent with the
facts found and that the court could not reasonably
have concluded as it did.’’ Id., 385. Specifically, this
court held: ‘‘Applying those factual findings to the statu-
tory considerations set forth in General Statutes §§ 46b-
81 and 46b-82, we cannot reconcile the court’s financial
orders with its findings. . . . That is particularly true
when, as here, the evidence revealed that the defendant
would be unable to make the monthly [mortgage] pay-
ments and, therefore, faced the daunting prospect of
defaulting on the mortgage or selling the property in
the near future.’’ Id.
These facts are clearly distinguishable from the pres-
ent case, where the trial court found, and the record
shows, that ‘‘the parties are able to continue the stan-
dard of living to which they were accustomed during
the marriage,’’ and the defendant has raised no issue
with the manner in which the court distributed marital
property. Accordingly, we conclude that, unlike Casey,
the present case is not one of the ‘‘very rare cases’’ in
which the court has abused its discretion.
In Wiegand v. Wiegand, 129 Conn. App. 526, 539, 21
A.3d 489 (2011), this court concluded that the trial court
abused its discretion by failing to make an award of
alimony to the plaintiff husband because ‘‘the plaintiff
had little or no income, while the defendant had a net
income of approximately $889 weekly. The plaintiff was
ordered to assume and to pay a substantial portion of
the marital debt, despite having little or no income to
pay that debt, and the court did not make any findings
regarding his prospects for employment or his earning
capacity. Because the parties did not have substantial
personal assets, it reasonably is foreseeable that if the
plaintiff complied with the court’s orders, he quickly
would become destitute, to the extent that he was not
already destitute.’’ Thus, Wiegand is clearly distinguish-
able from the present case, in which the court found,
and the record shows, that the defendant, at the time
of dissolution, ‘‘had an annual gross income of $150,000’’
and was ‘‘well educated with significant employment
experience, work history, and employability’’ and that
‘‘[t]he parties grew their estate together during the mar-
riage with steady employment, ample income, and
financial acumen.’’ The court in the present case also
took into account ‘‘the division of property . . . and
other assets’’ in concluding that an award of alimony
was not warranted.
In Kovalsick v. Kovalsick, 125 Conn. App. 265, 7 A.3d
924 (2010), this court held the following in concluding
that it was unreasonable for the trial court to decide
to make no award of alimony to the plaintiff wife: ‘‘The
court found that the parties had ‘equal standing in their
educational level’ and that the plaintiff had ‘additional
skills’ in the job market because she is bilingual. In
declining to award time limited alimony, the court found
that the plaintiff is ‘in good health, that she has obtained
a four year bachelor of arts degree and has bilingual
skills with a good work history . . . .’ Despite the evi-
dence of actual earnings, the court appeared to equate
the parties’ ‘equal standing in their education level’ to
equal earning capacity. The court, however, found that
the plaintiff earned only $13 to $15 per hour throughout
the marriage and that she was working 37.5 hours per
week at only $13 per hour at the time of trial. The
plaintiff’s earnings from her employment never
exceeded $25,000 per year while the defendant histori-
cally earned roughly five times that amount. No evi-
dence was presented that would tend to show that the
plaintiff could earn more than the salary that she earned
throughout the marriage without additional education
and training. In light of the court’s emphasis on ‘equal
. . . education level’ as opposed to actual historical
earnings, we cannot conclude that it was reasonable
for the court to decide as it did based on the facts
found or the evidence presented.’’ (Emphasis omitted;
footnote omitted.) Id., 274. This court further held that
‘‘there was evidence that the plaintiff was not able to
meet her obligations, which included the payments on
the debt . . . [and that] [i]t is reasonably foreseeable
that, if the court’s financial orders are allowed to stand
and the plaintiff continues to be responsible for the
entire debt but is unable either to increase her earning
capacity or to receive alimony or a portion of the marital
property, she could well be in dire financial straits.’’
(Footnote omitted.) Id., 274–75.
The facts in Kovalsick, like the facts in Wiegand, are
clearly distinguishable from those in the present case.
As in Wiegand, this court, in addressing the plaintiff’s
claim in Kovalsick, focused on the income of the plain-
tiff and her level of debt. The defendant in the present
case is in a situation significantly distinct from that of
the plaintiff in Kovalsick; nothing in this case suggests
that, without alimony, the defendant could find herself
in ‘‘dire financial straits,’’ or be unable to meet her
obligations. In fact, the court in the present case found,
and the record indicates, that ‘‘the [defendant] had an
annual gross income of $150,000 . . . [and that] the
parties are able to continue to enjoy the standard of
living to which they were accustomed during the mar-
riage.’’ Accordingly, Kovalsick does not support the
defendant’s position.
We conclude by noting that while there may be a
common thread that runs through these cases—a poten-
tial inability of a party to meet its expenses and debt
obligations after dissolution—they do not create, as the
defendant suggests, a hard and fast rule that requires
a trial court to make an award of alimony in specific
factual circumstances. Because the record in the pres-
ent case supports the court’s conclusion that no award
of alimony was warranted, we find that the court was
within its broad discretion in declining to make such
an award.
The judgment is affirmed.
In this opinion the other judges concurred.
1
To the extent the defendant argues that the court improperly failed to
consider her future needs in declining to award her alimony, we are not
persuaded. In its articulation, the court stated that it ‘‘considered the factors
enumerated in § 46b-82.’’ Hence, ‘‘[a]ny ambiguity as to the criteria upon
which the court relied for alimony was put to rest in [the] articulation . . .
wherein the trial court indicated that it had relied upon the criteria in § 46b-
82 . . . .’’ Maguire v. Maguire, 222 Conn. 32, 47, 608 A.2d 79 (1992).
2
The court also found that ‘‘[t]he defendant . . . has intentionally caused
delay, failed to comply with court orders, failed to appear in court, reneged
on agreements, fired or sabotaged attorneys representing her, and has taken
other action to avoid orderly, efficient proceedings because she does not
want to be divorced from the plaintiff.’’ Although these findings may support
the court’s findings of contempt and award of attorney’s fees, a trial court
should resist including findings related to misconduct during court proceed-
ings with those findings properly made pursuant to § 46b-82 (a).