Anketell v. Kulldorff ( 2021 )

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BETH E. ANKETELL v. MARTIN KULLDORFF
(AC 42452)
Alvord, Prescott and Lavine, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff. At the time of the dissolution
trial, the plaintiff worked as a per diem nurse with hours that varied
considerably. The defendant worked as a biostatistician, and his income
was dependent on the number of his employer’s ongoing grant funded
projects. At the time of the trial, his salary was approximately 50 percent
of what his annual income had been during the five preceding years
due to the expiration of at least three grants, which he and his colleagues
were working to replace. The defendant remained in the parties’ marital
home in Ashford, which he had purchased prior to their marriage. The
parties also jointly owned a home in Nicaragua. During the marriage,
the defendant made two payments in excess of the scheduled monthly
payments on the Ashford home mortgage without the plaintiff’s consent.
Additionally, after the filing of the dissolution action and the issuance
of the automatic orders, the defendant transferred funds into education
trust accounts for the parties’ two minor children and the defendant’s
minor child from a previous marriage without consulting the plaintiff.
The trial court, inter alia, dissolved the marriage, awarded the parties’
joint legal and physical custody of their two children, entered a parenting
time schedule, and permitted the plaintiff to relocate to Worcester,
designating her residence as primary for purposes of school following
the relocation. The trial court ordered the defendant to pay child support
in the amount of $325 per week, which it stated was a downward
deviation from the guideline amount. The trial court also ordered the
defendant to pay to the plaintiff a lump sum property settlement, which
it stated included settlement for the plaintiff’s share of the Nicaragua
property, along with partial reimbursement for the funds transferred
into the children’s education trust accounts and the overpayments on
the Ashford home mortgage. The defendant appealed, and the plaintiff
filed a motion for order of attorney’s fees, requesting that the defendant
pay the retainer for her appellate attorney. Following a hearing on the
matter, the trial court granted the motion and the defendant amended
his appeal to include a challenge to the attorney’s fees award. Held:
1. The trial court did not err by failing to identify the presumptive child
support obligation under the child support guidelines, as set forth in
the applicable regulations (§ 46b-215a-1 et seq.), nor did it improperly
calculate the presumptive amount for the defendant: the trial court
explicitly stated that it had found the presumptive amount associated
with each party’s then current income to be $300 per week, determined
that the presumptive amount was unfair and inequitable, deviated the
amount upward on the basis of the defendant’s earning capacity to $473
per week, and then deviated the amount downward to $325 per week
in the interest of fairness to reflect the parties’ shared custody, the
defendant’s variable income, and his increased commuting expenses
resulting from the plaintiff’s relocation; moreover, the trial court pro-
vided sufficient justification for its application of the deviation criteria
of earning capacity, as it found that the presumptive support amount
calculated with the defendant’s then current income would be unfair
and inequitable, the defendant’s earnings were at or near the top of his
salary range during the five years preceding the trial before his annual
income dropped nearly 50 percent to its then current level, and it was
not credible that the defendant would be unable to earn more than he
was then making.
2. The trial court did not err in its calculation of the parties’ incomes:
the trial court’s finding regarding the defendant’s earning capacity was
supported by evidence in the record of the defendant’s prior earnings,
and its determination that the defendant could expect to earn more
than he was earning at the time of trial was reasonable; moreover, the
trial court did not abuse its discretion in calculating child support on
the basis of the plaintiff’s actual income rather than attributing to her
a greater earning capacity that was reflective of a work week of more
than eighteen hours because its findings that, due to the intense nature
of the nursing profession, it was not necessarily advisable for the plaintiff
to work as many hours as were available and that her per diem employ-
ment both maximized her hourly rate and allowed her flexibility to care
for the parties’ children, were supported by the record.
3. The trial court did not abuse its discretion in awarding the plaintiff a
lump sum property settlement: contrary to the defendant’s claim, the
trial court did not make an effective finding of dissipation by awarding
the lump sum property settlement to the plaintiff, as, in doing so, the
trial court used language that was consistent with the equitable determi-
nations involved in the distribution of marital property, did not reference
‘‘dissipation’’ in its memorandum of decision or its articulations, and
made its finding on the basis of its determination that the defendant
had unilaterally allocated portions of the marital estate in accordance
with his own financial priorities; moreover, the trial court’s order divid-
ing the parties’ property was not an abuse of discretion because it
determined that the defendant’s overpayments on the Ashford home
mortgage and his deposits into the children’s education trust accounts
were made without the input of the plaintiff and had the effect of
reducing the liquid assets available for distribution.
4. The trial court did not err in awarding the plaintiff appellate counsel fees:
many of the assets awarded to the plaintiff in the dissolution judgment
were not easily liquidated and her attorney’s appellate retainer amounted
to almost 40 percent of her liquid assets; moreover, the trial court found
that requiring the plaintiff to pay the retainer would undermine the
financial awards made in the dissolution judgment, the defendant did
not demonstrate that such finding was unreasonable, and the trial court
explicitly stated that it had considered the criteria set forth in the applica-
ble statute (§ 46b-82) in making its determination.
5. The trial court did not abuse its discretion in entering its custodial orders:
with respect to its orders designating the Worcester home as primary
for school enrollment purposes, because the trial court had before it
testimony from both parties relating to their positions on the Ashford
and Worcester school systems and the recommendation of the family
services counselor, the defendant essentially was requesting that this
court reweigh the evidence in his favor, which it declined to do, as it
was not this court’s role to retry the facts or evaluate the credibility of
witnesses; moreover, the trial court’s order relating to the 6:15 a.m.
transfer time for the physical custody of the parties’ children was sup-
ported by the record, which included evidence that the children wake
up early and that such transfer time would permit the plaintiff to work
day shifts; furthermore, in its memorandum of decision, the trial court
stated that, in making its orders, it took the criteria set forth in the
applicable statute (§ 46b-56 (c)) and applicable case law into consider-
ation and had applied the same to the evidence before it.
Argued May 18—officially released September 28, 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 Windham and tried to the court, Green, J.; judg-
ment dissolving the marriage and granting certain other
relief, from which the defendant appealed to this court.
Affirmed.
Campbell D. Barrett, with whom were Johanna S.
Katz and, on the brief, Jon T. Kukucka, for the appellant
(defendant).
Scott T. Garosshen, with whom were Karen L. Dowd
and, on the brief, Kenneth J. Bartschi, for the appellee
(plaintiff).
Opinion
ALVORD, J. The defendant, Martin Kulldorff, appeals
from the judgment of the trial court dissolving his mar-
riage to the plaintiff, Beth E. Anketell. On appeal, the
defendant claims that the trial court (1) erred by failing
to identify the presumptive child support obligation
under the child support guidelines, as set forth in § 46b-
215a-1 et seq. of the Regulations of Connecticut State
Agencies (guidelines), before entering a support order
based on a deviation, (2) erred in calculating the parties’
incomes, (3) erred in awarding the plaintiff a lump sum
property settlement, (4) abused its discretion in award-
ing appellate attorney’s fees to the plaintiff, and (5)
abused its discretion in entering its custodial orders.
We affirm the judgment of the court.
The following facts and procedural history are rele-
vant to our resolution of the present appeal. The parties
married on July 16, 2011, and have two minor children
together. The plaintiff commenced this dissolution
action on October 5, 2016. A trial was held on September
13 and 14, 2018. On December 3, 2018, the court, Green,
J., issued its memorandum of decision in which it made
the following relevant factual findings. Both parties had
been married once before. The defendant has a teen-
aged child from his first marriage, and he shares joint
custody of that child with his first spouse. The defen-
dant has primary physical custody of his first child and
lives in Ashford, as the defendant determined that his
first child should live there in order to complete his
high school education at E.O. Smith High School. The
home in Ashford (Ashford home) was purchased by the
defendant prior to the parties’ marriage, and the parties
lived there during the marriage.
In 2012, the defendant paid for the plaintiff’s nursing
education at the University of Connecticut. Prior to the
birth of the parties’ children in 2015, the plaintiff worked
twenty-nine hours per week, which was considered a
full-time position, as a nurse at UMass Memorial Medi-
cal Center in Worcester, Massachusetts. While working
full time, the plaintiff elected not to participate in her
employer’s retirement plans. Following the birth of the
parties’ children, the plaintiff returned to work as a
per diem nurse. Because her position is per diem, it is
without fringe benefits, and her income depends on the
number of hours she works. During the pendency of
the dissolution proceedings, the plaintiff’s work hours
varied considerably.
The defendant has earned a PhD and works as a
biostatistician for Brigham and Women’s Hospital in
Boston. The defendant receives income from drug
safety research grants. The grants direct overhead funds
to the defendant’s employer, which then pays the defen-
dant’s salary. His income depends on the number of
grant-funded projects that are ongoing at any particu-
lar time.
At the time of the dissolution trial, the plaintiff had
moved to a rental property in Tolland, but she owns a
home in Worcester, Massachusetts (Worcester home).
The Worcester home is occupied by tenants, and their
rental payments cover the mortgage and taxes and pro-
vide a modest income. The plaintiff planned to move
to the Worcester home following the dissolution of the
parties’ marriage. During the marriage, a $15,000 bal-
loon payment became due on a second mortgage on
the Worcester home. The plaintiff and the defendant
disputed whether the decision for the plaintiff to opt
out of her employer’s retirement benefit plan in order
to focus on utilizing her employment earnings toward
the balloon payment was made as a couple or unilater-
ally by the plaintiff. The parties agreed, however, that
the balloon payment was to be made out of funds the
plaintiff had saved and allocated. Following the balloon
payment on the Worcester home, the defendant made
two $10,000 mortgage payments, over and above the
usual monthly payments due on the mortgage, on the
Ashford home. The decision to make additional mort-
gage payments on the Ashford home was made unilater-
ally by the defendant.
After the filing of this dissolution action and following
the issuance of the automatic orders, the defendant
transferred funds into Connecticut Higher Education
Trust (CHET) accounts for the parties’ children and
transferred additional funds into a CHET account for
the defendant’s older child. The decision to transfer
funds into the CHET accounts was made unilaterally
by the defendant.
The parties own a home and attached business in
Nicaragua, which they purchased in 2015. Because of
unrest in the country, estimates of the value of any
equity in the property vary substantially. The parties
agreed that if the country became more stable, discus-
sions of the property and its possible disposition would
be less theoretical. The parties also each own ten cows
and their calves in Nicaragua, although the welfare of
the animals is not known.
Attorney Rachel Sarantopoulos, the family services
counselor, conducted an evaluation. Her overall assess-
ment was that both parties are able, loving parents.
Sarantopoulos recommended that the plaintiff be per-
mitted to relocate to Worcester and that her Worcester
home be designated as primary for school purposes.
Sarantopoulos otherwise recommended that the par-
ties’ pendente lite shared custody plan, which had been
entered into by agreement and managed by the parties
with few conflicts, be continued.
The court dissolved the marriage on the ground of
irretrievable breakdown and entered the following
orders relevant to this appeal. The court awarded no
alimony to either party. The court awarded the parties’
joint legal and physical custody of their children and
entered a parenting time schedule. The court permitted
the plaintiff to relocate to Worcester and designated
the plaintiff’s residence as primary for purposes of
school.1 The court ordered the defendant to continue
to maintain the CHET accounts for the benefit of the
parties’ children.
The court ordered the defendant to pay child support
in the amount of $325 per week. The court stated that
such amount was ‘‘a downward deviation from the
guideline amount of $473 based on the shared parenting
plan, the increased commute associated with [the plain-
tiff’s] residence in Worcester, [the defendant’s] variable
income as well as his demonstrated earning capacity,
which is very near or at the top of his salary range.’’
The court ordered the defendant to pay the plaintiff
‘‘a lump sum property settlement of $52,500,’’ which,
the court stated, ‘‘includes settlement for the plaintiff’s
marital share of the Nicaragua house, partial reimburse-
ment for funds transferred to the children’s CHET
accounts and mortgage overpayments on the Ashford
[home] made by the defendant.’’
With respect to other property orders, the court
ordered the defendant to transfer $175,000 to the plain-
tiff from his ‘‘retirement funds/accounts of his choice
. . . .’’ The court ordered the plaintiff to transfer her
interest in the property in Nicaragua to the defendant
and awarded the defendant ownership of all the cows
and calves in Nicaragua.2 The court ordered that the
parties retain all assets presently in their respective
names, including the Ashford home, which would
remain the property of the defendant, and the Worcester
home, which would remain the property of the plaintiff.3
On January 4, 2019, the defendant filed the present
appeal. On January 14, 2019, the plaintiff filed a motion
for order of attorney’s fees, requesting that the court
order the defendant to pay the $25,000 retainer of her
appellate attorney. The court granted the motion on
August 23, 2019. The defendant thereafter amended his
appeal to include a challenge to the court’s award of
attorney’s fees.
After filing this appeal, the defendant filed a motion
for articulation, which the trial court denied. The defen-
dant then filed a motion for review with this court. This
court granted the motion in part and ordered the trial
court ‘‘to articulate as to its determination of the parties’
respective annual incomes and/or earning capacity, and
the value at the time of the dissolution judgment of
all assets that have been distributed, and the court’s
rationale for its financial orders in light of the articu-
lated findings.’’
In response, the trial court issued a December 5, 2019
articulation setting forth its findings (first articulation).
The court stated that ‘‘shorter work weeks seemed
appropriate’’ for the plaintiff, given the nature of her
work. It credited the plaintiff’s explanation of her pay
structure and evidence that full-time employment with
her employer constituted less than forty hours per
week. The court found that ‘‘[m]aintaining per diem
employment maximizes the plaintiff’s hourly rate and
allows for flexibility for caring for the children
depending on the access schedule . . . .’’4 (Citation
omitted.) The court rejected the defendant’s position
at trial that it would be inequitable to allow the plaintiff
to work less than forty hours per week and noted that
the defendant’s proposed parenting plan had been
designed to maximize opportunity for the plaintiff to
work more hours.
The court articulated that, although the defendant
worked forty to forty-five hours per week, the number
of hours he worked did not determine his income.
Rather, the defendant’s income was dependent on the
number of grant-funded projects being worked on at a
particular time. The court stated that the defendant
‘‘works for an organization that caps his income at the
nearly $200,000 per year that he was making at the time
of the filing for dissolution and not the nearly $100,000
that he was making at the time of the trial . . . .’’ (Cita-
tion omitted.) It articulated its finding that the defen-
dant ‘‘cannot make more than the salary cap but can
make substantially less if there are fewer or no grant-
funded projects. Line items in the active grants provide
direct payments to the organization and the organiza-
tion then pays the defendant.’’ The court stated that
the defendant also consistently had earned nearly
$200,000 in a similar role with a prior employer.
The court credited the defendant’s testimony that the
nature of his work and associated compensation will
be somewhat variable. The court referenced testimony
regarding the expiration of at least three grants and that
the defendant and his colleagues were making efforts
to replace those grants. The court found that the defen-
dant’s earnings were at or near the top of his salary
range from 2013 through 2017, before ‘‘dropping nearly
50 percent to its current level.’’5 The court ‘‘did not find
it credible that the defendant will be unable to earn
more than he is making currently.’’
The court articulated that, ‘‘[t]hroughout the mar-
riage, the defendant continued to save for his retirement
at a rate of roughly $500 per week . . . but declined
to consider improvements on the marital home, a larger
home, a larger and more comfortable family car and
resisted the plaintiff’s urging for items to prepare for
the arrival of the twins . . . .’’ (Citations omitted.)
With respect to the court’s child support award, the
court articulated: ‘‘In light of the court’s determination
of earning capacity, child support based on the pre-
sumptive amount associated with each party’s current
income ($300 / week payable to [the plaintiff]) was
determined to be unfair and inequitable. The court also
determined that child support based upon the defen-
dant’s consistent, prior income and the plaintiff’s cur-
rent income would also be unfair and inequitable ($473
per week payable to [the plaintiff]) given the defen-
dant’s current income. Child support was awarded to
[the plaintiff] at a rate of $325 per week, which is the
same amount that the parties had agreed to pendente
lite. This figure takes into account both earning capacity
and variability of income on the defendant’s part as well
as other factors including shared custody and increased
commuting expenses previously cited within the judg-
ment. Child support was awarded to [the plaintiff]
because she makes less money than the defendant with
credible reasons therefore. There was no evidence
adduced that either party was inclined towards extrava-
gances and [the defendant] raised sincere and credible
concerns about the urgency of fully funding his retire-
ment given the eight year age difference between him-
self and the plaintiff . . . . He has both paid child sup-
port at this rate and has continued to save roughly $500 /
week towards his retirement.’’ (Citation omitted.)
The court also articulated its decision with respect
to the lump sum property settlement of $52,500. Specifi-
cally, it stated: ‘‘[The additional mortgage payments on
the Ashford home] came as a surprise to the plaintiff.
The decision to make these payments as well as the
deposits to CHET accounts held by the defendant were
made unilaterally. The court noted that the plaintiff was
not seeking that monies placed in [the defendant’s older
child’s] account and in the accounts designated for each
of the twins be returned but in the interest of equity
and fairness the court’s cash settlement order included
reimbursement for the use of marital funds transferred
without the input of the plaintiff.’’ The court further
stated: ‘‘[T]he defendant had made several significant,
unilateral financial decisions during the course of the
marriage and during the pendency of the dissolution.
The court credited testimony that the defendant did not
discuss his decision to make a $20,000 payment on the
Ashford [home] mortgage . . . . After the filing for
divorce, the defendant transferred $20,000 into [the par-
ties’ children’s] CHET accounts and $40,000 into [the
defendant’s older child’s] account . . . . These trans-
fers were also not discussed with the plaintiff . . . .’’
(Citations omitted.) The court stated that it had entered
‘‘no orders regarding the parties’ respective home[s]
other than endorsing sole ownership without any claim
by the other.’’
The court also articulated that the defendant ‘‘had
demonstrated inflexibility and that his loving support of
[the plaintiff] had given way to hostility and parsimony.’’
The court stated that the defendant ‘‘was protective of
his own finances to the detriment of his relationship
with the plaintiff and was resentful of challenges to his
financial priorities and decisions.’’ The court concluded
by stating that it had made its financial awards ‘‘based
on financial inequities within their marital partnership.’’
The defendant thereafter filed with this court a sec-
ond motion for review, which was granted. This court
ordered the trial court to articulate ‘‘specifically what
dollar amount the court found for the parties’ earning
capacities and/or annual incomes and the specific value
found for each of the assets.’’ On January 24, 2020, the
trial court issued its articulation (second articulation),6
in which it stated that it found the defendant to have
an earning capacity of $198,536 per year. It stated:
‘‘[C]alculations were based on this figure and a net
income of $138,424, as reported on his financial affidavit
of September, 2017. [The defendant] reported having
earned: $184,000 in 2016; $180,000 in 2015; $202,000 in
2014 and $195,000 in 2013.’’ The court articulated that
it found the plaintiff’s income to be $56,576, with a net
income of $49,192, and explained that this income was
reported in the plaintiff’s financial affidavit of Septem-
ber, 2018. See part II of this opinion. The court found
the value of the CHET accounts for each of the parties’
children to be $11,656.07 and the value of the CHET
account for the defendant’s older child to be $11,656.07.
See footnote 11 of this opinion. Additional facts will be
set forth as necessary.
I
The defendant’s first claim on appeal is that the court
erred in calculating the presumptive child support
amount pursuant to the guidelines. Specifically, he con-
tends that the court improperly calculated the presump-
tive amount on the basis of his earning capacity rather
than his actual income. We disagree.
We first set forth applicable legal principles. ‘‘Under
the [child support] guidelines, the child support obliga-
tion first is determined without reference to earning
capacity, and earning capacity becomes relevant only
if a deviation from the guidelines is sought’’ under § 46b-
215a-5c (b) (1) (B) of the Regulations of Connecticut
State Agencies. (Internal quotation marks omitted.) Fox
v. Fox, 152 Conn. App. 611, 635, 99 A.3d 1206, cert.
denied, 314 Conn. 945, 103 A.3d 977 (2014). ‘‘[T]he
amount of support determined without reference to the
deviation criteria is presumed to be the correct amount
of support, and that presumption may only be rebutted
by a specific finding on the record that the application
of the guidelines would be inequitable or inappropriate
under the circumstances of a particular case. When the
latter is true, [§ 46b-215a-5c (b) (1) (B)] allows deviation
from the guidelines on the basis of a parent’s earning
capacity.’’ (Internal quotation marks omitted.) Id.
‘‘Our courts have interpreted this statutory and regu-
latory language as requiring three distinct findings in
order for a court to properly deviate from the child
support guidelines in fashioning a child support order:
(1) a finding of the presumptive child support amount
pursuant to the guidelines; (2) a specific finding that
application of such guidelines would be inequitable and
inappropriate; and (3) an explanation as to which devia-
tion criteria the court is relying on to justify the devia-
tion.’’ Righi v. Righi, 172 Conn. App. 427, 436–37, 160
A.3d 1094 (2017).
‘‘This court has stated that the reason why a trial court
must make an on-the-record finding of the presumptive
support amount before applying the deviation criteria
is to facilitate appellate review in those cases in which
the trial court finds that a deviation is justified. . . .
In other words, the finding will enable an appellate
court to compare the ultimate order with the guideline
amount and make a more informed decision on a claim
that the amount of the deviation, rather than the fact
of a deviation, constituted an abuse of discretion.’’ (Cita-
tion omitted; internal quotation marks omitted.)
Budrawich v. Budrawich, 132 Conn. App. 291, 300, 32
A.3d 328 (2011).
We next set forth our standard of review, which the
parties dispute. The defendant contends that his claim
involves the question of whether, and to what extent,
the child support guidelines apply, which he maintains
is a question of law subject to plenary review. The
plaintiff responds that, because the issue in the present
case is the application, not the interpretation, of the
guidelines, the proper standard of review is abuse of
discretion. We conclude that resolution of the defen-
dant’s claim requires us to interpret the language used
in the court’s memorandum of decision and subsequent
articulations to determine whether the court calculated
the presumptive support amount on the basis of the
defendant’s earning capacity, as the defendant claims,
or on the basis of his actual income. ‘‘Because [t]he
construction of a judgment is a question of law for the
court . . . our review of the . . . claim is plenary. As
a general rule, judgments are to be construed in the
same fashion as other written instruments. . . . The
determinative factor is the intention of the court as
gathered from all parts of the judgment. . . . The inter-
pretation of a judgment may involve the circumstances
surrounding the making of the judgment. . . . Effect
must be given to that which is clearly implied as well
as to that which is expressed. . . . The judgment
should admit of a consistent construction as a whole.’’
(Internal quotation marks omitted.) Cunningham v.
Cunningham, 204 Conn. App. 366, 373, 254 A.3d 330(2021).
We conclude that the defendant’s claim fails on the
basis of the plain language used by the court. In its first
articulation, the court expressly stated that it had found
‘‘the presumptive amount associated with each party’s
current income . . . .’’ That presumptive amount was
$300 weekly. This language demonstrates that the court
used the defendant’s actual income in calculating the
presumptive support amount. Accordingly, we reject
the defendant’s claim to the contrary.
Having concluded that the court calculated the pre-
sumptive amount on the basis of the defendant’s actual
income, we note the subsequent findings of the court.
The court found that the presumptive amount ‘‘was
determined to be unfair and inequitable’’ and turned to
the application of deviation criteria. It deviated upward
on the basis of the defendant’s earning capacity. Using
the ‘‘defendant’s consistent, prior income and the plain-
tiff’s current income,’’ the court calculated a support
amount of $473 weekly. It determined that that amount,
too, was unfair and inequitable. It then deviated down-
ward, mentioning the parties’ shared custody, the defen-
dant’s variability of income and his increased commut-
ing expenses in connection with the plaintiff’s move to
Worcester. The court arrived at a child support amount
of $325 weekly, which it noted was the same amount
that the parties had agreed to pendente lite. The court
further noted that the defendant had been able to com-
ply with paying child support at this rate while also
contributing approximately $500 per week to fund his
retirement.
The defendant, in his principal appellate brief, omits
any reference to or discussion of the court’s explanation
in its articulation that it had found a presumptive sup-
port amount of $300 on the basis of the parties’ current
incomes.7 In his reply brief, the defendant argues for
the first time on appeal that ‘‘[t]he fact that the court
was able in one of its articulations to identify the pre-
sumptive amount based on [the defendant’s] actual
income does not mean that the court used this number
in calculating child support, or deviated from this num-
ber to arrive at its child support order.’’ He further
argues in his reply brief that the articulation is inconsis-
tent with the court’s memorandum of decision. We
decline to address these contentions because the defen-
dant raised them for the first time on appeal in his reply
brief. See Radcliffe v. Radcliffe, 109 Conn. App. 21, 27,
951 A.2d 575 (2008) (‘‘It is a well established principle
that arguments cannot be 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.)); see also Grimm v. Grimm, 276 Conn.
377, 394 n.19, 886 A.2d 391 (2005), cert. denied, 547 U.S.
1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).
Lastly, the defendant argues that the court also failed
to make a specific finding on the record as to why an
obligation calculated in accordance with the defen-
dant’s actual income would be inequitable or inappro-
priate. We disagree with the defendant that the court’s
findings were deficient in this respect.
In support of his argument, the defendant relies on
Barcelo v. Barcelo, 158 Conn. App. 201, 215, 118 A.3d
657, cert. denied, 319 Conn. 910, 123 A.3d 882 (2015).
In that case, the trial court found that the defendant,
at the time of the dissolution, was earning a salary of
$70,000 and a ‘‘ ‘discretionary bonus in an undetermined
amount.’ ’’ Id., 205. In awarding child support, the court
failed to identify a presumptive support amount calcu-
lated on the basis of the defendant’s current income.
Id., 215. Instead, the court reviewed the defendant’s
prior annual net earnings and imputed an earning capac-
ity to the defendant of $250,000. Id. The court based
its child support order on that earning capacity. Id. The
court then further ordered the defendant to pay the
plaintiff 15 percent of any bonus he earned. Id.
On appeal, the plaintiff in Barcelo claimed that ‘‘the
court erred by entering a supplemental child support
order that awarded her 15 percent of the defendant’s
future bonus income without adequately considering
the financial needs of the parties’ minor children or
abiding by the child support guidelines.’’ Id., 207. This
court found the trial court’s supplemental child support
order improper for several reasons, stating in part: ‘‘The
court in the present case failed to cite the presumptive
support amount calculated with the defendant’s actual
net income, and then did not invoke the defendant’s
earning capacity as a deviation criterion in calculating
his child support obligation. It also did not explain why
an obligation calculated in accordance with the defen-
dant’s actual income, pursuant to the child support
guidelines, would be inequitable or inappropriate, thus
warranting instead an obligation calculated in accor-
dance with his earning capacity.’’ Id., 215.
In Barcelo, the trial court failed to identify the pre-
sumptive amount of child support, imputed to the defen-
dant a $250,000 earning capacity, and then ‘‘ordered the
defendant to pay 15 percent of any of his bonus income,
not 15 percent of any bonus income in excess of his
$250,000 earning capacity.’’ Id., 215. ‘‘As a result of this
apparent ambiguity, the court, without justifying a devi-
ation, permitted the plaintiff to ‘double dip’ and collect
child support in excess of the child support guidelines
with respect to whatever bonus income the defendant
earned above his $70,000 salary but below his imputed
earning capacity of $250,000.’’ Id., 215–16.
The defendant also relies on Fox v. Fox, supra, 152
Conn. App. 637, another case in which the trial court
imputed income to the defendant and calculated his
child support obligation on the basis of that imputed
income, without ever having calculated the defendant’s
presumptive child support obligation on the basis of
his actual income. This court stated: ‘‘Because the court
did not treat the defendant’s earning capacity as a devia-
tion criterion, it did not subject the plaintiff’s position
that the court should base the defendant’s modified
child support obligation on his earning capacity instead
of his actual income to the rigorous requirement of
a specific finding on the record that the presumptive
support amount would be inequitable or inappropriate.
. . . Such a finding must include a statement of the
presumptive support amount and [an explanation of]
how application of the deviation criteri[on] justifies the
variance. . . . Even though the court spoke generally
of certain factors on which it relied in deciding to
impute employment and investment income to the
defendant . . . it did not articulate why the defen-
dant’s imputed income would be a more appropriate or
equitable basis for calculating the defendant’s modified
child support obligation than the defendant’s actual
income or the presumptive support amount range . . .
calculated in accordance with the defendant’s actual
income. The court’s rationale for using the defendant’s
imputed income instead of his actual income in its cal-
culations also lacks any reference to the demonstrated
needs of the minor children, which further undermines
any justification for the variance. Affirming the judg-
ment with respect to the child support orders would
amount to sanctioning the court’s bypassing of and
noncompliance with the guidelines’ clear and firm
requirements regarding the use of deviation criteria and
presumptive support amounts.’’ (Citations omitted;
internal quotation marks omitted.) Id., 639–40.
Unlike the courts in Barcelo and Fox, the court in
the present case provided sufficient justification for
application of the deviation criteria of earning capacity.
Specifically, the court calculated the presumptive sup-
port amount using the defendant’s then current income
and found such amount to be ‘‘unfair and inequitable.’’ It
found in its memorandum of decision that the defendant
possessed an earning capacity that was ‘‘very near or
at the top of his salary range.’’ The court expressly
stated in its first articulation that the defendant’s earn-
ings were ‘‘at or near the top of his salary range in 2013
. . . 2014 . . . 2015 . . . 2016 . . . and 2017 . . .
before dropping nearly 50 percent to its current level.’’
(Citations omitted.) The court referenced the plaintiff’s
testimony that the defendant had not discussed with
her any anticipated, precipitous drop in his income. The
court ‘‘did not find it credible that the defendant will
be unable to earn more than he is making currently,’’
which, at the time of trial, was approximately $100,000
annually. The court then expressly deviated from the
presumptive amount on the basis of the defendant’s
earning capacity. In light of these findings, we are not
persuaded that the court provided insufficient justifica-
tion for applying the deviation criteria of earning capac-
ity. See Syragakis v. Syragakis, 79 Conn. App. 170, 177,
829 A.2d 885 (2003) (court made all necessary findings
when it found presumptive amount, determined that
such amount ‘‘would be inequitable or inappropriate in
this particular case,’’ and identified proper criteria for
deviating from guidelines’ presumptive amount (inter-
nal quotation marks omitted)).
II
The defendant’s second claim on appeal is that the
court erred in basing its child support award on
improper incomes for both parties. First, he argues that
the court’s determination of his earning capacity was
clearly erroneous. Second, he argues that the court used
the wrong actual income for the plaintiff, and third, he
argues that the court should have imputed an earning
capacity to the plaintiff reflective of more than an eigh-
teen hour work week. We disagree.
We first set forth our standard of review. ‘‘An appel-
late court will not disturb a trial court’s orders in domes-
tic relations cases unless the court has abused its discre-
tion or it is found that it could not reasonably conclude
as it did, based on the facts presented. . . . It is within
the province of the trial court to find facts and draw
proper inferences from the evidence 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. . . . [T]o conclude that the
trial court abused its discretion, we must find that the
court either incorrectly applied the law or could not
reasonably conclude as it did. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. . . . A 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 convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Milazzo-Panico v. Panico, 103
Conn. App. 464, 467–68, 929 A.2d 351 (2007).
A
The defendant first argues that the court’s determina-
tion of his earning capacity was clearly erroneous. Spe-
cifically, he argues that the evidence at trial established
that the defendant’s income is ‘‘dependent on factors
outside of his control.’’ In support of this argument,
he references the trial court’s finding that his income
‘‘depends on the number of grant-funded projects that
are extant at any particular time.’’ He further points to
the expiration of three grants following the defendant’s
submission of his September, 2017 financial affidavit.
‘‘It is well established that the trial court may under
appropriate circumstances in a marital dissolution pro-
ceeding base financial awards on the earning capacity
of the parties rather than on actual earned income. . . .
Earning capacity, in this context, is not an amount
which a person can theoretically earn, nor is it confined
to actual income, but rather it is an amount which a
person can realistically be expected to earn considering
such things as his vocational skills, employability, age
and health.’’ (Internal quotation marks omitted.)
Milazzo-Panico v. Panico, supra, 103 Conn. App. 468.
We are not persuaded that the court’s determination
of the defendant’s earning capacity was clearly errone-
ous. Specifically, the court’s finding that the defendant
has an earning capacity of $198,536 is supported by
evidence in the record of the defendant’s prior earnings.
The court found that the defendant reported having
earned ‘‘$184,000 in 2016; $180,000 in 2015; $202,000 in
2014, and $195,000 in 2013.’’
Moreover, the court reasonably determined that the
defendant realistically could be expected to earn more
than he was currently earning at the time of trial. The
court found that the defendant’s income depends on
the number of grants that he applies for and receives.
The court considered the expiration of three grants
and noted the defendant’s testimony that he and his
colleagues were making efforts to replace those grants.
The court expressly ‘‘did not find it credible that the
defendant will be unable to earn more than he is making
currently,’’ which, at the time of trial, was approxi-
mately $100,000. ‘‘[T]he sifting and weighing of evidence
is peculiarly the function of the trier [of fact]. [N]othing
in our law is more elementary than that the trier [of
fact] is the final judge of the credibility of witnesses
and of the weight to be accorded to their testimony.
. . . The trier has the witnesses before it and is in the
position to analyze all the evidence. The trier is free to
accept or reject, in whole or in part, the testimony
offered by either party.’’ (Internal quotation marks omit-
ted.) Elia v. Elia, 99 Conn. App. 829, 835, 916 A.2d
845 (2007).
Because the court’s finding is supported by the evi-
dence and we are not left with the definite and firm
conviction that a mistake has been committed, we will
not disturb the court’s finding.
B
The defendant’s second argument is that the court
erred in its calculation of the plaintiff’s income. We
conclude that the court misstated the plaintiff’s income
but that such misstatement amounted to a scrivener’s
error and is therefore of no consequence.
The following additional facts are relevant. In its sec-
ond articulation, the court stated that it found the plain-
tiff’s income to be $56,576, with a net income of $49,192,
and explained that this income was reported in the
plaintiff’s financial affidavit of September, 2018. As the
defendant points out in his brief, the plaintiff’s Septem-
ber 4, 2018 financial affidavit reported annual gross
income of $41,600 and net income of $34,944. The plain-
tiff’s May 7, 2019 financial affidavit, which was filed on
May 13, 2019, reported significantly higher annual gross
income of $56,576 and net income of $49,192.
The defendant argues that, ‘‘based on the court’s
articulation, it is clear that it did not in fact base its
child support award on the plaintiff’s actual income at
the time of the dissolution. Indeed, the court could not
possibly have based its child support award on actual
income of $56,576 gross because, at the time of the
decision, the plaintiff had not yet filed that financial
affidavit and instead reported actual income of
$41,600.’’ (Emphasis omitted.) The plaintiff agrees that
the court misstated the plaintiff’s income in its second
articulation but contends that such misstatement was
a scrivener’s error. The plaintiff maintains that the court
could not have used the income numbers from a finan-
cial affidavit that did not yet exist when it performed
the calculations. She argues that ‘‘[t]he only logical read-
ing is that the trial court correctly stated that it had
‘found [the plaintiff’s] annual income to be [the net and
gross amounts] reported in her financial affidavit of
September, 2018,’ but accidentally wrote the wrong
numbers, after correctly using the September, 2018
numbers in its actual calculations performed over a
year before.’’ (Emphasis omitted.) See In re S.D., 115
Conn. App. 111, 120, 972 A.2d 258 (2009) (trial court’s
finding that respondent had not visited with child since
child was five months old was clearly erroneous but
that word ‘‘month’’ appeared to be scrivener’s error).
We agree with the plaintiff that the court’s misstatement
of the plaintiff’s income amounted to a scrivener’s error,
where it properly referenced the applicable financial
affidavit but improperly recorded the numbers reported
on the later affidavit.
C
The defendant’s third argument related to his claim
of improper income determinations by the trial court
is that the court abused its discretion in failing to impute
an earning capacity to the plaintiff reflective of more
than an eighteen hour work week. We disagree.
In its first articulation, the court stated that ‘‘[m]uch
was made during the trial of whether or not it would
be equitable to allow [the plaintiff] to work less than
forty hours per week if [the defendant] was expected
to work forty or more hours per week.’’ Ultimately, the
court found that the ‘‘nature of nursing as a profession
can require intense interaction with others which would
argue against the propriety of each nurse working as
many hours and shifts as might be theoretically avail-
able . . . .’’ (Citation omitted.) The court found that
‘‘[m]aintaining per diem employment maximizes the
plaintiff’s hourly rate and allows for flexibility for caring
for the children depending on the access schedule
. . . .’’ (Citation omitted.)
As explained previously in this opinion, ‘‘[i]n marital
dissolution proceedings, under appropriate circum-
stances the trial court may base financial awards on
the earning capacity rather than the actual earned
income of the parties . . . .’’ (Emphasis in original;
internal quotation marks omitted.) Brown v. Brown,
148 Conn. App. 13, 21, 84 A.3d 905, cert. denied, 311
Conn. 933, 88 A.3d 549 (2014). Having thoroughly
reviewed the record, we conclude that it supports the
trial court’s findings and that the court did not abuse
its discretion in calculating child support on the basis
of the plaintiff’s actual income, rather than attributing
to her a greater earning capacity.
On the basis of the foregoing, we reject the defen-
dant’s claim that the court erred in determining the
parties’ income.
III
The defendant’s third claim on appeal is that, ‘‘[b]y
ordering [him] to reimburse the plaintiff for making
voluntary payments toward the principal mortgage on
the marital home and for making contributions to the
children’s CHET accounts, the court effectively made
a finding of dissipation, but failed to meet the necessary
elements for such a finding.’’ The plaintiff responds that
the court properly divided the assets in the marital
estate considering the defendant’s ‘‘unilateral financial
decisions, made with marital assets when the marriage
was in trouble or after the plaintiff filed for divorce,
[which] aggravated the parties’ difficulties, and sought
to restrict how the marital estate could be divided.’’ We
agree with the plaintiff.
The following additional facts and procedural history
are relevant to this claim. The plaintiff, in her proposed
orders, requested that the court order the defendant to
pay her a lump sum property settlement of $60,000,
which, the plaintiff maintained, ‘‘shall equalize the [par-
ties’] cash assets and reimburse the plaintiff, in part,
for the defendant’s withdrawal of some $100,000 over
the course of the past two years.’’ In its memorandum
of decision, the court ordered the defendant to pay the
plaintiff ‘‘a lump sum property settlement of $52,500,’’
which, the court stated, ‘‘includes settlement for the
plaintiff’s marital share of the Nicaragua house,8 partial
reimbursement for funds transferred to the children’s
CHET accounts and mortgage overpayments on the
Ashford [home] made by the defendant.’’ (Footnote
added.) The funds transferred to the children’s CHET
accounts included $10,000 into each of the CHET
accounts for the parties’ children and $40,000 into the
CHET account for the defendant’s older child. The mort-
gage ‘‘overpayments’’ included two $10,000 mortgage
payments on the Ashford home. The court found that
the decisions to transfer marital assets, into the chil-
dren’s CHET accounts and into additional mortgage
payments on the Ashford home, were made unilaterally
by the defendant. In its first articulation, the court noted
‘‘that the plaintiff was not seeking that [moneys] placed
in [the defendant’s older child’s] account and in the
accounts designated for each of the twins be returned
but in the interest of equity and fairness the court’s
cash settlement order included reimbursement for the
use of marital funds transferred without the input of
the plaintiff.’’
We first must resolve the parties’ dispute regarding
the applicable standard of review of this claim. The
defendant contends that our standard of review is ple-
nary because this court must address the question of
what, as a matter of law, constitutes dissipation.9 The
plaintiff contends that we must review the court’s ulti-
mate orders for an abuse of discretion and its factual
findings for clear error. We conclude that the defen-
dant’s claim first requires us, as a preliminary matter,
to interpret the judgment of the trial court. ‘‘Because
[t]he construction of a judgment is a question of law
for the court . . . our review of the . . . claim is ple-
nary. As a general rule, judgments are to be construed
in the same fashion as other written instruments. . . .
The determinative factor is the intention of the court
as gathered from all parts of the judgment. . . . The
interpretation of a judgment may involve the circum-
stances surrounding the making of the judgment. . . .
Effect must be given to that which is clearly implied
as well as to that which is expressed. . . . The judg-
ment should admit of a consistent construction as a
whole.’’ (Internal quotation marks omitted.) Cunning-
ham v. Cunningham, supra, 204 Conn. App. 373.
We begin our analysis by addressing the defendant’s
contention that, ‘‘[a]lthough the court did not use the
word ‘dissipation,’ it is clear that is what the court
intended.’’ ‘‘Generally, dissipation is intended to
address the situation in which one spouse conceals,
conveys or wastes marital assets in anticipation of a
divorce. . . . Most courts have concluded that some
type of improper conduct is required before a finding of
dissipation can be made. Thus, courts have traditionally
recognized dissipation in the following paradigmatic
contexts: gambling, support of a paramour, or the trans-
fer of an asset to a third party for little or no consider-
ation. Well-defined contours of the doctrine are some-
what elusive, however, particularly in more factually
ambiguous situations.’’ (Internal quotation marks omit-
ted.) Powell-Ferri v. Ferri, 326 Conn. 457, 469–70, 165
A.3d 1124 (2017).
In determining whether the trial court’s order, in
effect, constituted a finding that the defendant had
engaged in dissipation of marital assets, we first note
that the term ‘‘dissipation’’ does not appear anywhere
in the court’s memorandum of decision or subsequent
articulations. Moreover, the language that the court did
use—describing the award to the plaintiff as being made
‘‘in the interest of equity and fairness’’—is consistent
with the equitable determinations involved in the distri-
bution of marital property. Lastly, we do not conclude
that the court’s use of the term ‘‘reimbursement’’ was an
indication that it was relying on the dissipation doctrine.
Indeed, the defendant was not ordered to ‘‘reimburse’’
the plaintiff for the loss of funds that no longer existed
because of financial misconduct on the part of the
defendant. Rather, the marital property merely had been
changed into another form. In sum, the trial court’s
order rested not on a finding that the defendant had
engaged in financial misconduct or intentionally had
wasted marital assets but rather on its finding that the
defendant unilaterally had allotted portions of the mari-
tal estate solely in accordance with his own financial
priorities. Thus, we conclude that the court’s order did
not invoke the doctrine of dissipation.
Having determined that the court’s order did not, in
effect, constitute a finding of dissipation, we consider
whether the court’s order that the defendant pay the
plaintiff $52,500 constituted an abuse of discretion.
General Statutes § 46b-81 governs the distribution
of the assets in a dissolution case. Section 46b-81 (a)
authorizes the court to ‘‘assign to either spouse all or
any part of the estate of the other spouse. . . .’’ Section
46b-81 (c) provides for the court’s consideration of ‘‘the
length of the marriage, the causes for the . . . dissolu-
tion of the marriage . . . the age, health, station, occu-
pation, amount and sources of income, earning capac-
ity, vocational skills, education, employability, estate,
liabilities and needs of each of the parties and the oppor-
tunity of each for future acquisition of capital assets
and income. The court shall also consider the contribu-
tion of each of the parties in the acquisition, preserva-
tion or appreciation in value of their respective estates.’’
‘‘[A] fundamental principle in dissolution actions is
that a trial court may exercise broad discretion in . . .
dividing property as long as it considers all relevant
statutory criteria. . . . While the trial court must con-
sider the delineated statutory criteria [when allocating
property], no single criterion is preferred over others,
and the court is accorded wide latitude in varying the
weight placed upon each item under the peculiar cir-
cumstances of each case. . . . In dividing up property,
the court must take many factors into account. . . . A
trial court, however, need not give each factor equal
weight . . . or recite the statutory criteria that it con-
sidered in making its decision or make express findings
as to each statutory factor.’’ (Internal quotation marks
omitted.) Kent v. DiPaola, 178 Conn. App. 424, 431–32,
175 A.3d 601 (2017).
The specified criteria in § 46b-81 are not exhaustive,
and the court properly may consider other equitable
factors when crafting its property distribution orders.
‘‘Although created by statute, a dissolution action is
essentially equitable in nature. . . . The power to act
equitably is the keystone to the court’s ability to fashion
relief in the infinite variety of circumstances which arise
out of the dissolution of a marriage. . . . [Section] 46b-
81 sets forth certain criteria for the court to consider
in making an assignment of property. Although in mak-
ing its financial determinations the court is required to
consider these criteria . . . in the exercise of its inher-
ent equitable powers it may also consider any other
factors which may be appropriate for a just and equita-
ble resolution of the marital dispute.’’ (Citations omit-
ted; internal quotation marks omitted.) Robinson v.
Robinson, 187 Conn. 70, 71–72, 444 A.2d 234 (1982).
In the present case, the court found that ‘‘[t]he evi-
dence elicited supported the court’s determination that
[the defendant] was protective of his own finances to
the detriment of his relationship with the plaintiff and
was resentful of challenges to his financial priorities
and decisions.’’ Moreover, the court specifically found
that the additional mortgage payments for the Ashford
home and the CHET deposits into the three accounts
were unilateral decisions of the defendant. These find-
ings are supported by evidence in the record. Specifi-
cally, the defendant testified that he had made two
$10,000 payments on the Ashford home mortgage in
June and August, 2016. When questioned regarding the
$20,000 sum of the mortgage payments, the defendant
testified that he probably did not discuss the payments
with the plaintiff before making them but that, when
he did discuss them with her, she was ‘‘very angry about
it.’’ With respect to the deposits into the CHET accounts
for the parties’ children, the defendant was asked
whether he discussed them with the plaintiff and he
responded, ‘‘[W]hen I put in the $10,000 [each], that
was after her filing for divorce and I figured then I
would just decide that on my own.’’ As to his older
child’s CHET account, the defendant testified that he
deposited $40,000 into it and that he did not remember
whether he told the plaintiff he had made such a deposit.
The plaintiff, both in her proposed orders and in her
testimony at trial, sought a lump sum property distribu-
tion award in consideration of these unilateral financial
transactions.10 She testified that she believed a $60,000
lump sum award would be fair because she ‘‘fe[lt] that
[the defendant] has systematically withdrawn large
sums of money in order to pay down his personal debt,
his mortgage, increase the CHET funds of [his older
child]. [The defendant] stated in the past . . . while
divorcing . . . his first wife, this was a pattern he had
created in order to avoid paying her any money, and I
believe he’s doing the same here.’’ She further clarified,
when asked whether she was ‘‘still looking for $60,000
even though [the defendant had] been funding the chil-
dren’s education,’’ that her ‘‘desire to have the $60,000
did not factor on the CHET account[s] alone.’’
In rendering its property division orders, the court
considered the defendant’s several unilateral financial
transactions, which, although they increased the equity
in the Ashford home and set aside funds for the three
children’s college education, were made without the
input of the plaintiff and had the effect of reducing the
liquid assets available for distribution. Having reviewed
the evidence before the court, we cannot conclude that
the court abused its broad discretion in dividing the
parties’ property as it did.11
IV
The defendant’s fourth claim on appeal is that the
court erred in awarding the plaintiff appellate counsel
fees. We disagree.
The following additional procedural history is rele-
vant to this claim. Following the defendant’s appeal to
this court, the plaintiff filed a motion for an order of
attorney’s fees, in which she requested that the defen-
dant be ordered to pay the $25,000 retainer required
by the plaintiff’s appellate attorney. The court held a
hearing on the plaintiff’s motion on May 13, 2019. Both
parties submitted financial affidavits and testified. The
defendant testified that he had borrowed money from
his brother to pay his appellate attorney. He testified
that he did not have any liquid assets, had incurred
credit card debt, and thought that he could not access
his retirement funds without incurring taxes and penal-
ties. He testified that the estate of his mother was being
handled by his two siblings and that he did not know
the monetary value of it. The plaintiff also testified that
she had borrowed funds from her siblings to pay her
appellate attorney’s retainer. She testified that she
anticipated owing anywhere between $50,000 and, more
likely, $80,000 in attorney’s fees by the end of the appel-
late process.
On August 23, 2019, the court issued its memorandum
of decision in which it granted the plaintiff’s motion for
attorney’s fees. The court made the following findings
of fact in support of its award: the defendant has a
demonstrated earning capacity that far exceeds his cur-
rent income, and, even with the reduced income, he
still has maintained a higher income than the plaintiff;
the defendant has access to substantial retirement
funds; the defendant’s assets are nearly double those
of the plaintiff, including the defendant’s substantial
equity in his real estate holdings; the amount required
to retain appellate counsel is nearly one half of the
amount of the financial award made to the plaintiff in
the dissolution judgment, and requiring the plaintiff to
spend those funds on appellate counsel to defend the
appeal of the defendant, who has substantially greater
assets available to him, would undermine the court’s
purpose in making the financial award; and the plaintiff
lacked sufficient liquid funds to defend against the
appeal. Taking into consideration the criteria contained
in General Statutes §§ 46b-62 (a) and 46b-82 and in our
Supreme Court’s decision in Hornung v. Hornung, 323
Conn. 144, 169–70, 146 A.3d 912 (2016), the court
ordered the defendant to pay the plaintiff $25,000 for
the retainer costs of her appellate counsel.
‘‘Section 46b-62 (a) authorizes the trial court to award
attorney’s fees in a dissolution action when appropriate
in light of the respective financial abilities of the parties
and the equitable factors listed in § 46b-82. . . . [W]e
[have] stated three broad principles by which these
statutory criteria are to be applied. First, such awards
should not be made merely because the obligor has
demonstrated an ability to pay. Second, where both
parties are financially able to pay their own fees and
expenses, they should be permitted to do so. Third,
where, because of other orders, the potential obligee
has ample liquid funds, an allowance of [attorney’s]
fees is not justified. . . .
‘‘A determination of what constitutes ample liquid
funds . . . requires . . . an examination of the total
assets of the parties at the time the award is made. . . .
We have recognized, however, that [t]he availability of
sufficient cash to pay one’s attorney’s fees is not an
absolute litmus test . . . . [A] trial court’s discretion
should be guided so that its decision regarding attor-
ney’s fees does not undermine its purpose in making
any other financial award. . . .
‘‘Whether to allow [attorney’s] fees, and if so in what
amount, calls for the exercise of judicial discretion by
the trial court. . . . An abuse of discretion in granting
[attorney’s] fees will be found only if [an appellate
court] determines that the trial court could not reason-
ably have concluded as it did.’’ (Citations omitted; inter-
nal quotation marks omitted.) Hornung v. Hornung,
supra, 323 Conn. 169–70.
The defendant contends that the court’s award of
attorney’s fees runs afoul of our Supreme Court’s deci-
sion in Hornung. In Hornung, the court awarded the
plaintiff $100,000 in trial attorney’s fees and $40,000 in
appellate attorney’s fees. Id., 168. The defendant
claimed on appeal that ‘‘the plaintiff received ample
liquid funds from the trial court’s judgment with which
to pay her attorney’s fees, and that the trial court’s
conclusion that not awarding her attorney’s fees would
undermine its other awards to her was unreasonable.’’
Id., 168–69. Our Supreme Court agreed with the defen-
dant. It first considered that the trial attorney’s fees
award ‘‘represent[ed] a very small portion of the liquid
assets awarded to the plaintiff in the trial court’s judg-
ment.’’ Id., 173. Specifically, this court noted that ‘‘the
plaintiff [was to] receive liquid assets totaling $2,577,000
within three months of the judgment’’ and that the fee
award ‘‘represent[ed] only 4 percent of this amount.’’
Id. The plaintiff was to receive ‘‘$2,082,000, the amount
owed to her under the [parties’ prenuptial] agreement,
within sixty days of the judgment; $40,000 per month
in periodic alimony and child support, starting twelve
days from the judgment; and $7.5 million in lump sum
alimony, payable in biannual installments of $375,000,
starting two and one-half months from the judgment.’’
Id. The Supreme Court concluded that, ‘‘given the vast
liquid assets awarded to the plaintiff, and the modest
nature of the attorney’s fees when compared with those
assets, the equitable factors in § 46b-82, as incorporated
into § 46b-62, do not justify the award.’’ Id., 177.
We conclude that Hornung is distinguishable from
the present case in which, as the defendant recognizes,
‘‘neither party had the liquid funds available to pay their
respective appellate counsel fee retainers.’’ The present
case is more akin to Misthopoulos v. Misthopoulos, 297
Conn. 358, 386–87, 999 A.2d 721 (2010), in which our
Supreme Court rejected the defendant’s argument that
the trial court abused its discretion in awarding attor-
ney’s fees. Our Supreme Court determined that the
majority of assets awarded to the plaintiff in the dissolu-
tion were not liquid, noting that ‘‘$2.6 million of the
approximately $3.2 million in assets awarded to the
plaintiff consisted of the family home in which the plain-
tiff and the parties’ three minor children resided’’ and
‘‘also included her interest in a trust . . . certain retire-
ment accounts, vested stock and vested stock
options.’’ Id.In the present case, the court expressly found that
the plaintiff lacked the liquid assets to pay her attorney’s
appellate retainer. Indeed, several of the assets awarded
to the plaintiff in the dissolution judgment were not
easily liquidated. Specifically, she was awarded her
Worcester home, in which she reported $68,858 in
equity, $175,000 in retirement accounts to be trans-
ferred by way of a qualified domestic relations order,
$71,035 in her retirement plan, and $2665 in equity in
her motor vehicle.12 The only assets that the plaintiff
was awarded that were capable of immediate liquida-
tion were the lump sum property settlement of $52,500,
$5000 in funds that were held by the caretaker of the
Nicaragua property, and $6801 in bank accounts.13 As
the plaintiff maintains, the $25,000 retainer alone
amounted to almost 40 percent of her liquid assets.
Thus, we cannot conclude that the plaintiff had ‘‘ample’’
liquid funds such that the court abused its discretion
in awarding her attorney’s fees.
Moreover, the court also specifically found that
requiring the plaintiff to pay the $25,000 retainer would
undermine the financial awards made in the dissolution
judgment, and the defendant has not demonstrated that
such finding was unreasonable. See Grimm v. Grimm,
supra, 276 Conn. 395, 398 (holding that trial court rea-
sonably could have determined that $100,000 fee award
to plaintiff was necessary to avoid undermining
$100,000 lump sum alimony award, despite plaintiff
earning more than $100,000 per year, possessing signifi-
cant retirement accounts, and having been awarded
both of parties’ Connecticut residences).
Lastly, in addition to the court’s finding that not
awarding the plaintiff attorney’s fees would undermine
the other financial orders, the court’s decision expressly
stated that it had considered the statutory criteria set
forth in § 46b-82. See Leonova v. Leonov, 201 Conn.
App. 285, 331, 242 A.3d 713 (2020) (‘‘general reference
by the court to those criteria is all that is required’’),
cert. denied, 336 Conn. 906, 244 A.3d 146 (2021). The
court went further and made specific findings regarding
the parties’ earning capacities, current income levels,
access to retirement funds, assets, and the amount of
counsel fees sought as compared to the financial awards
the plaintiff received in the dissolution.
Accordingly, we conclude that the court did not abuse
its discretion in awarding the plaintiff appellate attor-
ney’s fees to defend the present appeal.
V
The defendant’s final claim on appeal is that the
court’s custodial orders are contrary to the best interest
of the children in two ways. First, the defendant chal-
lenges the court’s order permitting the plaintiff to relo-
cate to Massachusetts and designating the plaintiff’s
residence as primary for purposes of school enroll-
ment.14 Second, he argues that the 6:15 a.m. transfer
time negatively impacts the quality of his time with the
parties’ children. We disagree that the court abused its
discretion in entering its custodial orders.
The following additional facts and procedural history
are relevant to this claim. The plaintiff, in her proposed
orders, sought an order requiring the parties’ children
to attend a preschool program in or near Worcester.
The defendant, in his proposed orders, requested that
‘‘[t]he children’s primary residence for school purposes
should be the residence of the father.’’ He further
requested, in his proposed orders regarding the parties’
parenting plan and schedule: ‘‘The plaintiff may move
to her house . . . in Worcester, MA. Other than that,
parties may only move to a location in Connecticut
within 20 minutes driving distance from the matrimonial
home.’’ He further proposed: ‘‘On a nonschool day the
relinquishing parent may, for work reasons, drop off
the children to the receiving parent at any time between
6 a.m. and 9 a.m., with [seven day] prior notice.’’
At trial, the court heard evidence regarding the plain-
tiff’s requested relocation to Worcester. The plaintiff
testified that, although she was currently renting a home
in Tolland, she owns a home in Worcester that she rents
to tenants and that she planned to relocate back to the
Worcester home. She testified that the Worcester home
was about forty minutes driving distance, without rush
hour traffic, from the Ashford home.
The plaintiff testified that she had looked into two
preschool programs in the Worcester area and
explained the schedules and costs of each program. As
to the public school system, the plaintiff testified that
she preferred the Worcester area school system to that
of Ashford, although she acknowledged that the Ash-
ford school system, which she described as average,
has good teachers. The defendant testified that both
Ashford and Tolland have very good school systems
and that the Worcester district where the Worcester
home is located is average among the schools in the
city of Worcester and is on the lower end of schools
in the county of Worcester.
The family services counselor, Sarantopoulos, testi-
fied that it was her recommendation that if the plaintiff
relocated to Worcester, the children should attend a
preschool program in Worcester. She did not do any
research regarding the preschool programs or public
schools of Worcester or Ashford, as that task would be
beyond the scope of her evaluation.
With respect to the transfer time, the plaintiff testified
that she was requesting a 6:15 a.m. transfer time because
she could not work day shifts with a 9 a.m. transfer
time and that time would facilitate the defendant’s com-
mute to Boston. She also thought an earlier transfer
time worked to the children’s benefit, stating: ‘‘They’re
up, they’re ready to go, versus a 9 a.m. time period is—
toddlers, they’re . . . playing. They don’t want to be
interrupted.’’ Sarantopoulos testified with respect to
the earlier transfer time that she would have no issue
with it if the parties agreed to that time, while at the
same time recognizing that getting the children up at
4:30 or 5 a.m. ‘‘would be early if that is not their natural
wake-up time . . . .’’ The plaintiff clarified that she was
requesting that the parent beginning their parenting
time pick up the children, so that the children would
not have to wake up earlier.
The defendant testified that the plaintiff’s relocation
to Worcester would increase his commuting time. Spe-
cifically, he testified that it would increase his commute
to Boston by forty minutes.
In its memorandum of decision, the court entered the
following parenting schedule: ‘‘Week 1: [The defendant]
will have the children from Sunday through Wednesday
morning at 6:15 a.m. with [the plaintiff] picking up the
children at 6:15 a.m. [The plaintiff] will have the children
from Wednesday [at] 6:15 a.m. until Monday morning
with [the defendant] picking up the children at 6:15
a.m. . . .
‘‘Week 2: [The defendant] will have the children Mon-
day through Wednesday morning with [the plaintiff]
picking up the children at 6:15 a.m. [The plaintiff] will
have the children from Wednesday at 6:15 a.m. through
Friday afternoon with [the defendant] picking up the
children at 1:30 p.m. [The defendant] will have the chil-
dren from Friday through Sunday and the schedule
repeats.’’ The court also ordered that the children be
enrolled in a preschool program in the Worcester area
and that, once the children attained the age to begin
kindergarten, both parents shall have input on which
Worcester area schools would be the best fit for the
children. In the event that the parties were unable to
reach agreement as to which school the children should
attend, the plaintiff’s selection would prevail.
‘‘Our standard of review of a trial court’s decision
regarding custody, visitation and relocation orders is
one of abuse of discretion. . . . [I]n a dissolution pro-
ceeding the trial court’s decision on the matter of cus-
tody is committed to the exercise of its sound discretion
and its decision cannot be overridden unless an abuse
of that discretion is clear. . . . The controlling princi-
ple in a determination respecting custody is that the
court shall be guided by the best interests of the child.
. . . In determining what is in the best interests of the
child, the court is vested with a broad discretion. . . .
[T]he authority to exercise the judicial discretion under
the circumstances revealed by the finding is not con-
ferred upon this court, but upon the trial court, and
. . . we are not privileged to usurp that authority or
to substitute ourselves for the trial court. . . . A mere
difference of opinion or judgment cannot justify our
intervention. Nothing short of a conviction that the
action of the trial court is one which discloses a clear
abuse of discretion can warrant our interference. . . .
‘‘The trial court has the opportunity to view the par-
ties [firsthand] and is therefore in the best position
to assess the circumstances surrounding a dissolution
action, in which such personal factors as the demeanor
and attitude of the parties are so significant. . . .
[E]very reasonable presumption should be given in
favor of the correctness of [the trial court’s] action. . . .
We are limited in our review to determining whether
the trial court abused its broad discretion to award
custody based upon the best interests of the child as
reasonably supported by the evidence.’’ (Internal quota-
tion marks omitted.) Lederle v. Spivey, 113 Conn. App.
177, 185–86, 965 A.2d 621, cert. denied, 291 Conn. 916,
970 A.2d 728 (2009).
‘‘[General Statutes §] 46b-56 (c) directs the court,
when making any order regarding the custody, care,
education, visitation and support of children, to con-
sider the best interests of the child, and in doing so
[the court] may consider, but shall not be limited to,
one or more of [sixteen enumerated] factors . . . . The
court is not required to assign any weight to any of the
factors that it considers.’’15 (Internal quotation marks
omitted.) Id., 187.
The defendant argues that the plaintiff established
no good cause for relocating, while the relocation nega-
tively impacted the defendant’s commute and the qual-
ity of the children’s time with him. He further contends
that, ‘‘[o]n the days when [he] has the children both
before and after school, he will be forced to drive nearly
an extra three hours, cutting into either his workday
or into his time with the children.’’ He argues that there
was no evidence presented that Worcester ‘‘is superior
culturally, educationally, or in any other way,’’ to Ash-
ford and that there was no compelling reason to desig-
nate the Worcester home as the primary residence for
school enrollment purposes.
With respect to the defendant’s challenge to the
court’s designation of the plaintiff’s Worcester home as
primary for school enrollment purposes, the court had
before it both parties’ testimony regarding their posi-
tions on the Ashford and Worcester school systems
and Sarantopoulos’ recommendation that the children
attend a preschool program in Worcester. The defen-
dant essentially requests that we reweigh that evidence
in his favor. ‘‘[W]e do not retry the facts or evaluate
the credibility of witnesses.’’ (Internal quotation marks
omitted.) Brown v. Brown, supra, 148 Conn. App. 20.
As to the defendant’s challenge to the transfer times,
the court heard evidence that the parties’ children wake
up early and that an early transfer time would permit
the plaintiff to work day shifts. Thus, our review of the
record finds support for the court’s order. Moreover,
in his proposed orders, the defendant contemplated that
‘‘for work reasons,’’ the children could be exchanged
‘‘at any time between 6 a.m. and 9 a.m., with [seven]
day prior notice.’’ It was not an abuse of discretion to
set 6:15 a.m. as the usual transfer time, rather than
direct the parents to implement an optional 6:15 a.m.
transfer time. Finally, the court stated in its memoran-
dum of decision that it had taken into consideration
the statutory criteria and applicable case law and had
applied it to the evidence. ‘‘[T]he trial court is presumed
to have applied the law correctly, and it is the burden
of the appellant to show to the contrary.’’ (Internal
quotation marks omitted.) Brown v. Brown, supra, 148
Conn. App. 20.
Accordingly, we conclude that the court did not abuse
its broad discretion in formulating its custodial orders.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Prior to the planned relocation to Worcester and for so long as the
plaintiff continued to reside in Tolland and the defendant in Ashford, the
defendant’s residence was designated as primary.
2
The defendant was ordered to transfer to the plaintiff $5000, which was
equal to the amount of money held by a caretaker of the Nicaragua property.
3
On December 19, 2018, the defendant filed a motion to reargue, which
was denied.
4
The court also found that ‘‘[t]he rationale for having a full-time nursing
schedule of less than forty hours was credible and uncontroverted. The
court note[d] that the nature of nursing as a profession can require intense
interaction with others which would argue against the propriety of each
nurse working as many hours and shifts as might be theoretically available
. . . .’’ (Citation omitted.)
5
The court noted that the plaintiff was aware of the defendant’s pay
structure but that he had not discussed any anticipated, precipitous drop
in income with her.
6
As to the valuation of property, the court stated in its second articulation
that the house in Nicaragua was purchased for $167,000, $145,000 of which
came from an account the defendant had established prior to the marriage.
The court found the house in Nicaragua to have a value of ‘‘at least $50,000,’’
and determined that it would increase in value should the country’s unrest
subside. The court valued the defendant’s interest in the cows at $5000 and
awarded the plaintiff $5000 for her interest in the cows that were awarded
to the defendant. The court valued the defendant’s retirement accounts at
$601,673 and found that there had been a $350,000 increase in the value of
those accounts during the course of the marriage.
7
The defendant does not raise any claim of error on appeal that the $300
presumptive support amount was improperly calculated.
8
In its first articulation, the court stated that the defendant was credited
with having provided the majority of funds for the purchase of the house
in Nicaragua. The court stated: ‘‘At the time of the marriage the account from
which the funds were eventually drawn contained approximately $145,000
including $20,000 that had originally been set aside from the couple’s wed-
ding in Sweden . . . . There was, however, some time that passed prior to
the purchase of the Nicaragua house for $167,000. Because the majority of
the funds used to buy the house were the defendant’s from before the
marriage, the court divided the amount of the additional funds used to buy
the house as a part of a cash settlement for [the plaintiff].’’ (Citation omitted.)
9
Moreover, in his reply brief, the defendant relies on O’Brien v. O’Brien,
326 Conn. 81, 95–96, 161 A.3d 1236 (2017), in which our Supreme Court
engaged in plenary review of the question of law regarding whether the trial
court, in distributing marital property, had the authority, in the absence of
a finding of contempt, to consider certain stock transactions made by the
plaintiff during the pendency of the appeal from the judgment of dissolution
in violation of the automatic orders. O’Brien is distinguishable from the
present case. In O’Brien, the court had before it the distinct question of
whether the trial court properly could remedy the plaintiff’s violations of
the automatic orders by adjusting in the defendant’s favor the distribution
of marital assets to account for the losses caused by the plaintiff’s actions.
Id., 95.
10
The plaintiff clarified that she was not asking the court to return the
CHET deposits to her or making a claim to the equity in the Ashford home.
Specifically, she acknowledged that funding the CHET accounts is a desir-
able thing for a parent to do and testified that she was not making a claim
against the equity in the Ashford home, even acknowledging that the defen-
dant previously had made additional payments of $20,000 on the mortgage
during the course of the marriage.
11
The defendant states in his principal brief that the court provided in its
articulations different values for the children’s CHET accounts. The court’s
first articulation refers to the transactions made by the defendant—the
deposits into the accounts for the parties’ children in the total amount of
$20,000 and the deposit into the account for the defendant’s older child in
the amount of $40,000. The second articulation values the CHET accounts
for the parties’ children at $11,656.07 each and for the defendant’s older
child at $11,656.07. We note that the defendant’s September, 2018 financial
affidavit values the account for the defendant’s older child at $115,179, and
the defendant testified at trial that the value of that account was ‘‘over
[$100,000].’’ We are convinced that the value identified in the second articula-
tion for the CHET account for the defendant’s older child constitutes a
scrivener’s error. First, it is identical to the value of the accounts for the
parties’ children, suggesting that the court merely improperly repeated the
value. Second, the trial court previously had articulated that it found that
the defendant had transferred $40,000 into his older child’s account. Thus,
it clearly recognized the significantly greater value of that account.
In his reply brief, the defendant notes that his September, 2018 financial
affidavit values the CHET accounts for the parties’ children at $12,322 each.
We note that the values identified by the trial court for the accounts for
the parties’ children correspond with those identified on the CHET account
statements entered into evidence during trial. Any discrepancy in the values
of the CHET accounts for the parties’ children is immaterial to our analysis,
as the only order of the court pertaining to the CHET accounts is the order
that the defendant ‘‘shall continue to maintain the current CHET accounts
for the benefit of the minor children.’’
12
The defendant, in his appellate brief, contends that the ‘‘plaintiff’s total
property award was approximately $384,194, of which $308,535 was liquid.’’
The defendant includes in this amount the plaintiff’s retirement assets, which
he maintains ‘‘typically can be transferred into liquid form with a penalty
and a tax.’’ Although the trial court found that the defendant ‘‘has substantial
retirement funds that are not so encumbered that they cannot be accessed,’’
we are not convinced that the retirement assets need be considered ‘‘liquid’’
for purposes of determining whether the plaintiff has ‘‘ample liquid assets’’
with which to pay her attorney’s fees. See Olson v. Mohammadu, 169 Conn.
App. 243, 265–66, 149 A.3d 198 (court did not abuse its discretion in awarding
plaintiff appellate attorney’s fees when it found that plaintiff did not have
sufficient liquid assets with which to pay her own legal fees, and trial court
was not persuaded that plaintiff’s retirement assets constituted sufficient
liquid assets to enable plaintiff to pay her own fees), cert. denied, 324 Conn.
903, 151 A.3d 1289 (2016); see also Misthopoulos v. Misthopoulos, supra,297 Conn. 386 (categorizing payee’s retirement accounts as not liquid).
13
The plaintiff’s financial affidavit listed two checking accounts with val-
ues of $1563 and $5228 and a savings account with a value of $10.
14
In his principal brief, the defendant sets forth the factors for consider-
ation to determine the best interest of the child in a postjudgment relocation
matter, as adopted by our Supreme Court in Ireland v. Ireland, 246 Conn. 413,
431–32, 717 A.2d 676 (1998). ‘‘[Those] factors are: [E]ach parent’s reasons
for seeking or opposing the move, the quality of the relationships between
the child and the custodial and noncustodial parents, the impact of the
move on the quantity and quality of the child’s future contact with the
noncustodial parent, the degree to which the custodial parent’s and child’s
life may be enhanced economically, emotionally and educationally by the
move, and the feasibility of preserving the relationship between the noncus-
todial parent and child through suitable visitation arrangements. . . .
[Another relevant factor is] the negative impact, if any, from continued or
exacerbated hostility between the custodial and noncustodial parents, and
the effect that the move may have on any extended family relationships.’’
(Internal quotation marks omitted.) Ford v. Ford, 68 Conn. App. 173, 178,
789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002).
As the defendant’s counsel recognized during oral argument before this
court, the court is not required to apply the Ireland factors in the case
of relocation issues arising coincident to the dissolution of marriage. See
id., 184.
15
The following factors are set forth in General Statutes § 46b-56 (c): ‘‘(1)
The temperament and developmental needs of the child; (2) the capacity
and the disposition of the parents to understand and meet the needs of the
child; (3) any relevant and material information obtained from the child,
including the informed preferences of the child; (4) the wishes of the child’s
parents as to custody; (5) the past and current interaction and relationship
of the child with each parent, the child’s siblings and any other person who
may significantly affect the best interests of the child; (6) the willingness
and ability of each parent to facilitate and encourage such continuing parent-
child relationship between the child and the other parent as is appropriate,
including compliance with any court orders; (7) any manipulation by or
coercive behavior of the parents in an effort to involve the child in the
parents’ dispute; (8) the ability of each parent to be actively involved in the
life of the child; (9) the child’s adjustment to his or her home, school and
community environments; (10) the length of time that the child has lived
in a stable and satisfactory environment and the desirability of maintaining
continuity in such environment, provided the court may consider favorably
a parent who voluntarily leaves the child’s family home pendente lite in
order to alleviate stress in the household; (11) the stability of the child’s
existing or proposed residences, or both; (12) the mental and physical health
of all individuals involved, except that a disability of a proposed custodial
parent or other party, in and of itself, shall not be determinative of custody
unless the proposed custodial arrangement is not in the best interests of
the child; (13) the child’s cultural background; (14) the effect on the child
of the actions of an abuser, if any domestic violence has occurred between
the parents or between a parent and another individual or the child; (15)
whether the child or a sibling of the child has been abused or neglected,
as defined respectively in section 46b-120; and (16) whether the party satis-
factorily completed participation in a parenting education program estab-
lished pursuant to section 46b-69b. . . .’’