Salzbrunn v. Salzbrunn

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JACQUELINE SALZBRUNN v. DENNIS M.
SALZBRUNN
(AC 35476)
Beach, Sheldon and Pellegrino, Js.
Argued April 17, 2014—officially released February 10, 2015
(Appeal from Superior Court, judicial district of
Danbury, Marano, J. [dissolution judgment]; Winslow,
J. [motion for modification; motion to reargue].)
Richard W. Callahan, for the appellant (defendant).
Harry Gill, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, Dennis M. Salzbrunn,
appeals from the postjudgment order of the trial court
granting the motion for modification filed by the plain-
tiff, Jacqueline Salzbrunn. On appeal, the defendant
claims that the court: (1) applied an improper standard
when modifying the defendant’s alimony and child sup-
port obligations; (2) made erroneous factual findings;
and (3) abused its discretion in fashioning the modified
financial orders. We affirm the judgment of the trial
court.
The following facts and procedural history are rele-
vant to the defendant’s appeal. The plaintiff and the
defendant were married in October, 1987; there were
four children born of the marriage. On August 16, 2011,
the court dissolved the marriage and approved the par-
ties’ separation agreement, incorporating its terms into
the judgment of dissolution.
During the marriage, the plaintiff worked for one of
the defendant’s companies, American Irrigation Sys-
tems, Inc., as a bookkeeper, but did not take a salary.
During the pendency of the divorce action, until the
dissolution of marriage, the plaintiff continued to work
for the defendant’s company as a bookkeeper and was
paid a weekly gross income of $800.
Paragraph nineteen of the separation agreement, enti-
tled ‘‘Alimony-Employment of Wife,’’ provided that the
defendant was to employ the plaintiff as an at-will
employee at his business as a bookkeeper and office
manager. She was to receive $1539 per week, or $80,028
annually. Paragraph nineteen further provided that, ‘‘as
an incident of her employment,’’ the plaintiff was to
receive a company vehicle with a gas allowance not to
exceed $400 per month and free medical insurance.
These financial obligations were deemed not to be ‘‘ali-
mony.’’1 Paragraph nineteen further provided: ‘‘While
the [plaintiff] shall be an at-will employee who may be
dismissed at any time, and may choose to resign at
any time, her termination or resignation, or any change
whatsoever, in her job duties or compensation shall
constitute grounds for the modification of alimony as
hereinafter set forth. Said change, as aforesaid, need
not be substantial to constitute grounds for the modifi-
cation of alimony.’’ Paragraph nineteen further pro-
vided that the defendant pay the plaintiff one dollar per
year in alimony.2
The salary paid to the plaintiff was agreed to consti-
tute satisfaction of the defendant’s obligations as to
‘‘total family support,’’ i.e., alimony and child support,
but the parties also included in paragraph twenty of
the agreement additional financial obligations of the
defendant to the children. Paragraph twenty provided
that, if the plaintiff’s employment situation should
change, the parties could return to court for ‘‘an adjudi-
cation of the appropriate amount of child support.’’ A
change in the plaintiff’s employment, then, could result
only in the modification of the defendant’s obligation
to pay periodic alimony and his obligations to support
his children.
Paragraph twenty-one of the separation agreement,
entitled ‘‘Medical Insurance,’’ stated that the first $3000
of the minor children’s unreimbursed medical expenses
each year was to be paid by the defendant, and that
the balance of such expenses was to be divided equally
between the defendant and the plaintiff. This paragraph
of the separation agreement did not contain any lan-
guage regarding modification.
The plaintiff’s employment with the defendant’s com-
pany ended in late July, 2012. By way of a motion for
modification filed on August 17, 2012, the plaintiff
requested a modification of the defendant’s alimony
and child support obligations pursuant to the separation
agreement on the ground that she was no longer
employed by the defendant. On January 29, 2013, at a
hearing on the motion for modification, both parties,
without objection, presented testimony about the rea-
sons for the dissolution of the marriage, the financial
affidavits of each party, the property distribution pursu-
ant to the separation agreement, the plaintiff’s ability
to work and current employment, and the relative finan-
cial positions of the parties at the time of the motion
to modify.
The court granted the motion for modification and
ordered the defendant to pay alimony to the plaintiff
in the amount of $1600 per week. The court also ordered
child support in the amount of $425 per week, pursuant
to the child support guidelines.3 It then terminated the
order which had required the defendant to pay the first
$3000 of the children’s clothing expenses, and ordered
the parties to split the remaining cost of clothing evenly.
The court modified the parties’ respective obligations
to pay the children’s unreimbursed medical expenses.
Unreimbursed medical expenses were to be split
equally between the plaintiff and the defendant. The
effect of the new order was to relieve the defendant of
his obligation to pay the first $3000 of such expenses
each year.
The defendant filed a motion to reargue the court’s
order on the plaintiff’s motion to modify on February
14, 2013, arguing that: (1) the defendant’s counsel had
urged the court to make allowance for the fact that the
defendant’s company had an operating loss of $52,182,
but the court did not allow for the operating loss in its
order; and (2) by modifying alimony in part on the basis
of the property division in the separation agreement,
the court’s order ran ‘‘contrary to the [j]udgment of the
[c]ourt at the time of the dissolution of the marriage.’’
The court denied that motion. This appeal followed.
I
The defendant claims that the court applied an erro-
neous legal standard in modifying his alimony and child
support obligations. He contends that the court erred
in applying a de novo or so-called ‘‘second look’’ stan-
dard in modifying the support orders. The defendant
argues that because the plaintiff relied upon her change
of employment, as provided for in the separation
agreement, rather than upon General Statutes § 46b-86
(a),4 as the justification for modification, that only a
very limited review of the court’s prior orders should
have been undertaken. The court erred, the defendant
argues, in conducting a more comprehensive inquiry of
the sort contemplated by General Statutes § 46b-82.
The defendant raises this issue for the first time on
appeal. At the hearing on the motion for modification,
the court stated that it intended to apply the criteria
set forth in § 46b-82,5 and neither party objected. At the
hearing, the plaintiff sought to preclude the defendant
from proving cohabitation. See General Statutes § 46b-
86 (b) (trial court may suspend, reduce or terminate
periodic alimony upon finding that cohabitation alters
financial needs of person receiving alimony). The court
noted that § 46b-86 was ‘‘somewhat irrelevant’’ to the
proceedings because the plaintiff was seeking a modifi-
cation of the defendant’s alimony and child support
obligations pursuant to the separation agreement,
which permitted such a modification when the plaintiff
was no longer employed by the defendant’s company.
The court stated: ‘‘We are really squarely on the issue
of alimony. We’re going to deal with § 46b-82 and . . .
of course, we’re going to deal with child support as well,
the guidelines and so forth.’’ Neither party objected.
The defendant did not raise in the trial court the
claim that the court should not have modified alimony
and child support based upon the criteria in § 46b-82,
but rather should have conducted a more limited review
based more narrowly upon the agreement, and accord-
ingly the issue is unpreserved.6 See Ucci v. Ucci, 114
Conn. App. 256, 969 A.2d 217 (2009) (claim on appeal
that trial court applied wrong standard in ruling on
motion to modify unreviewable where trial court stated
it was applying criteria in § 46b-82 and moving party did
not alert court at any time that he sought modification
pursuant to agreement only and that court should not
consider § 46b-82 criteria). ‘‘It is well settled that a trial
court can be expected to rule only on those matters
that are put before it. . . . For this court to . . . con-
sider [a] claim on the basis of a specific legal ground not
raised during trial would amount to trial by ambuscade,
unfair both to the [court] and to the opposing party.’’
(Citations omitted; internal quotation marks omitted.)
Id., 261–62.
II
The defendant next claims that in fashioning the
financial orders, the court made erroneous factual find-
ings when it (1) added $20,000 to the defendant’s net
income because his business had paid for $20,000 of
his personal expenses, and (2) calculated rental and
depreciation at $86,788, when the correct amount was
$32,623. We are not persuaded.
‘‘With regard to the trial court’s factual findings, the
clearly erroneous standard of review is appropriate.
. . . A factual finding is clearly erroneous when it is
not supported by any evidence in the record or when
there is evidence to support it, but the reviewing court
is left with the definite and firm conviction that a mis-
take has been made. . . . Simply put, we give great
deference to the findings of the trial court because of
its function to weigh and interpret the evidence before it
and to pass upon the credibility of witnesses.’’ (Internal
quotation marks omitted.) Miller v. Guimaraes, 78
Conn. App. 760, 766–67, 829 A.2d 422 (2003).
In its January 29, 2013 decision from the bench on
the motion for modification, the court found that the
defendant’s total gross income was $263,502. The court
included in that amount $20,000 in personal expenses
that were charged to the American Express credit card
of the defendant’s company. The court also included
in gross income the rental income received by the defen-
dant from his two properties. The court found, as
explained in a July 17, 2013 articulation, that the rental
income from the two properties in 2011, including the
depreciation taken for tax purposes, totaled $86,788.7
A
The defendant argues that the court erred in finding
that he received an additional $20,000 in income based
on personal expenses allegedly being paid by the defen-
dant’s company on its American Express bill; he claims
that he received no such income. He contends that the
court’s finding that American Irrigation Systems paid
for some of his personal expenses was pure speculation8
and therefore clearly erroneous. We disagree.
The court’s finding that the defendant implicitly
received $20,000 in income, as a result of the defen-
dant’s charging to his business account certain personal
expenses, was not speculative but rather was based on
evidence adduced at the hearing on the motion for
modification. At the hearing, the plaintiff introduced
into evidence, as a full exhibit, a document from the
defendant’s business entitled ‘‘American Irrigation Sys-
tems Custom Detail Transactions Report January
through December 2012’’ (report). At the top of the
report was a handwritten note stating: ‘‘* = PERSONAL
(ALL ELSE = BUSINESS).’’ The report contained
numerous credit card charges to American Express
with asterisks next to charged items. At the hearing, the
plaintiff, who had been the bookkeeper of the business,
testified that the amount of gross income listed on the
defendant’s financial affidavit did not accurately report
his total income. She explained that when she worked at
American Irrigation Systems as bookkeeper she ‘‘would
see the American Express bills where [the defendant]
had quite a lot of . . . mostly personal things on his
American Express.’’ At the January 2013 hearing, she
testified that she had been employed at American Irriga-
tion Systems until August, 2012, and that, on average,
over the past five years the defendant had charged
$10,000 per year of personal expenses to the business
account. She further testified that the report contained
some items without asterisks that in fact were personal
charges, including items such as various ski vacation
related expenses. The plaintiff further testified that the
items on the report that were personal amounted to
$28,000.
The defendant argues that the court’s finding of
$20,000 was speculative because (a) the court used his
2011 tax returns to determine the defendant’s income
when the American Express report was from 2012 and
the 2012 tax returns had not been completed; (b) the
plaintiff, who testified that certain expenses on the
defendant’s business American Express were personal
expenses, had no personal knowledge as to how
accountants designate personal expenses on business
accounts, and (c) the largest claimed personal expense
on the American Express bill, for meals and expenses,
was not listed on the defendant’s 2011 tax return as
an expense charged to the business. The defendant’s
arguments may be relevant to the weight and credibility
of the evidence, but the evidence was not impermissibly
speculative for several reasons. The report clearly listed
certain expenses as personal in nature, and the fact
that the 2012 tax returns were not in evidence does
not render the court’s findings regarding the personal
nature of some expenses on the report speculative.
The plaintiff had been the bookkeeper at American
Irrigation Systems and the court properly could have
credited her testimony regarding the personal nature
of some expenses. It is within the province of the trial
court to resolve conflicts in the evidence. The court
could have credited the plaintiff’s testimony that the
defendant’s financial affidavit, which reported an
income figure similar to that on his 2011 tax return,
understated income because it did not include various
personal expenses charged to American Irrigation Sys-
tems. The court’s finding regarding the $20,000 in extra
income from the defendant’s business was not
clearly erroneous.
B
The defendant argues that the court erred in finding
that rental income and depreciation, which were
included in the court’s computation of gross income,
amounted to $86,788. He argues that in 2011 American
Irrigation Systems paid $78,000 in rent to American
Real Estate Investments, LLC, which the defendant also
owned, and that this payment resulted in American
Irrigation Systems’ incurring a loss of $52,182; and
American Real Estate Investments’ incurring a profit
of $57,086. He argues that the court erred in concluding
that the money he drew from American Irrigation Sys-
tems and American Real Estate Investments, which
properties were awarded to him under the judgment,
constituted income. The defendant also appears to
argue that the court should have taken into account
the loss of $52,182 when modifying its order and should
have subtracted that amount from the rental income.
On his financial affidavit, the defendant listed under
‘‘source of income’’: 1. ‘‘rental’’ $317.50 (gross amount
per week), and 2. ‘‘rental’’ $1307.69 (gross amount per
week), for a total yearly gross income of $84,509.88.
The court credited the rental income that the defendant
included in his financial affidavit. During the hearing
on the motion for modification, the court stated: ‘‘[The
defendant] has an income generating property which
also affords him a place to live. . . . So, notwithstand-
ing, that you have a certain amount of equity in the
property should you sell it tomorrow, he has a property
that generates income. Now, we’re not double-dipping,
we’re not saying that his property is actually worth
more than that; we’re accepting the amount that he
puts on his financial affidavit . . . despite the fact that
it’s a business zoned property. . . . We are accepting
at face value, the value that he puts on it, but it is,
after all, an income generating property. And you’re not
double-dipping when you say that it, also generates
income. You have to count that income, it’s income to
him less expenses, but it’s income to him.’’ The court
found that the rental income received by the defendant
from the two properties, disregarding the depreciation
taken for tax purposes, totaled $86,788.9 The court did
not err in crediting the rental income shown on the
defendant’s financial affidavit.10
III
The defendant last claims that the court abused its
discretion because the modification of the financial
orders was inequitable. He argues that the modified
financial orders are inconsistent with the original orders
issued under the dissolution judgment and, as such, it
was clear that the orders were meant to ‘‘punish’’ him.
He argues that the plaintiff had fewer expenses at the
time of the modification than at the time of dissolution,
because one of the minor children had left for college;
that he had more expenses, as he was paying that child’s
college expenses; and that when the separation
agreement was accepted by the court one year earlier,
the plaintiff’s needs were agreed to have been met by
her receiving $80,000 per year, but she effectively
received a greater amount as a result of the modification
order. We disagree, and conclude that the trial court
did not abuse its discretion.
‘‘[I]t is generally uncommon for a reviewing court
to determine that the trial court has abused its broad
discretion in deciding whether to award alimony and
otherwise craft financial orders in a dissolution decree.
Reluctance to reverse the trial court’s exercise of discre-
tion, however, should not mean that the door is entirely
closed to successful appeals in dissolution cases. . . .
Our appellate courts have reversed excessive or inequi-
table financial orders. See Greco v. Greco, 275 Conn.
348, 356–60, 880 A.2d 872 (2005) (reversing financial
orders when 98.5 percent of marital property and sub-
stantial alimony awarded to one spouse); Pellow v. Pel-
low, 113 Conn. App. 122, 129, 964 A.2d 1252 (2009)
(reversing financial orders when orders consumed 90
percent of paying spouse’s income).’’ (Citation omitted;
internal quotation marks omitted.) Kovalsick v. Koval-
sick, 125 Conn. App. 265, 272, 7 A.3d 924 (2010).
Pursuant to paragraph 19 of the agreement, the plain-
tiff received $80,028 per year in exchange for working
at the defendant’s company, and, incidental to employ-
ment, received a company vehicle, a gas allowance not
to exceed $400 per month and free medical insurance.
The agreement provided that the defendant was to pay
the plaintiff $1 per year in alimony. When the plaintiff
was no longer employed by the defendant, she filed a
motion for modification of alimony and child support,
as provided in the agreement.
The defendant cannot prevail on his argument that
the court’s orders were punitive or that the award was
inequitable. The court modified the judgment of dissolu-
tion by ordering the defendant to pay alimony to the
plaintiff in the amount of $1600 per week. The court
also ordered child support in the amount of $425 per
week, pursuant to the child support guidelines. In craft-
ing the financial orders, the court also terminated the
order requiring the defendant to pay the first $3000 of
the children’s clothing expenses and ordered, instead,
that the parties split that cost; ordered that unreim-
bursed medical expenses were to be split equally
between the plaintiff and the defendant, rather than the
defendant’s paying the first $3000 of such expenses
each year; and ordered that the defendant was no longer
obligated to pay for the plaintiff’s vehicle or gas.
The court took into account the financial situations
of both parties. As noted in part II of this opinion, the
court found that the defendant in fact enjoyed consider-
ably more income than he had claimed. The court found
that the defendant’s net income was approximately
$215,000 per year. The newly ordered alimony and child
support totaled approximately $105,000. The result is
not confiscatory or blatantly inequitable. Cf. Greco v.
Greco, supra, 275 Conn. 360–64 (court abused discretion
when payment of alimony and insurance premiums
alone left defendant with annual net income deficit of
$1500.16); Rozsa v. Rozsa, 117 Conn. App. 1, 9–10, 977
A.2d 722 (2009) (court did not abuse discretion in order-
ing plaintiff to pay alimony award in amount roughly
equal to one-half of his net income despite plaintiff’s
claim that his net income was less than found by court);
see also Pasquariello v. Pasquariello, 168 Conn. 579,
583, 362 A.2d 835 (1975) (‘‘the trial court, in a divorce
action, has wide discretion in the type and amount of
alimony awarded . . . [and] [s]uch judicial discretion
. . . is . . . exercised according to the recognized
principles of equity’’ [citations omitted]). In the circum-
stances presented, we cannot say that the court abused
its broad discretion in fashioning the financial orders.
The judgment is affirmed.
In this opinion SHELDON, J. concurred.
1
‘‘Alimony’’ is defined in relevant part as: ‘‘A court-ordered allowance
that one spouse pays to the other spouse for maintenance and support . . .
after they are divorced.’’ Black’s Law Dictionary (9th Ed. 2009).
2
There was no requirement, then, that a party was required to prove a
‘‘substantial change in circumstances’’ in order to modify alimony. Cf. Gen-
eral Statutes § 46b-86.
3
The additional amount of $425 weekly in child support does not appear
in the relevant order, but can be found in the trial court transcript.
4
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support . . . may, at any time
thereafter, be continued, set aside, altered or modified by the court upon
a showing of a substantial change in the circumstances of either party or
upon a showing that the final order for child support substantially deviates
from the child support guidelines . . . unless there is a specific finding on
the record that the application of the guidelines would be inequitable or
inappropriate. . . .’’
5
General Statutes § 46b-82 (a) provides in relevant part: ‘‘At the time of
entering the decree, the Superior Court may order either of the parties to
pay alimony to the other . . . . In determining whether alimony shall be
awarded, and the duration and amount of the award, the court shall consider
the evidence presented by each party and shall consider the length of the
marriage, the causes for the . . . dissolution 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 secur-
ing employment.’’
6
The parties were requested by this court to address in supplemental
briefing the questions of whether the issue of the appropriate standard was
raised in the trial court and, if not, on what legal basis could this court
adjudicate the issue. The defendant offered only the plaintiff’s pleading,
which alleged a change of circumstance only by virtue of the separation
agreement. It is quite clear, then, that the claim that only a limited review
could be maintained once a change of employment occurred was never
directly presented to the trial court, and wide-ranging evidence was not
objected to. Further, we do not consider the issue to present an ‘‘exceptional
circumstance’’ justifying our sua sponte review pursuant to Blumberg Asso-
ciates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.
123, 161–64, 84 A.3d 840 (2014).
7
The court further explained in the articulation that because the calcula-
tion sheet had been discarded after the hearing, it was unable to account
for a discrepancy of approximately $3200 in the addition of the numbers
for 2011. The court concluded that the discrepancy was de minimis for
purposes of the court’s order of modified child support and alimony.
8
‘‘If the trial court’s . . . findings of fact rest on speculation rather than
on sufficient evidence, they are clearly erroneous.’’ State v. Smith, 40 Conn.
App. 789, 801, 673 A.2d 1149, cert. denied, 237 Conn. 915, 675 A.2d 886, cert.
denied, 519 U.S. 873, 117 S. Ct. 191, 136 L. Ed. 2d 128 (1996).
9
See footnote 7 of this opinion.
10
We deem the claim that the rental income generated from the two
properties awarded to him did not constitute income for purposes of this
case to be inadequately briefed.