Harlow v. Stickels

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LISA HARLOW v. THOMAS STICKELS
(AC 35455)
Robinson, Sheldon and Bishop, Js.*
Argued December 6, 2013—officially released June 24, 2014
(Appeal from Superior Court, judicial district of New
Britain, Pinkus, J.)
Lisa Harlow, self-represented, the appellant
(plaintiff).
Donald R. Holtman, for the appellee (defendant).
Opinion
PER CURIAM. The plaintiff, Lisa Harlow, appeals
from the trial court’s judgment denying her motion to
compel, motion for contempt, and motion for sanctions,
and granting, in part, the postdissolution motion for
modification filed by the defendant, Thomas Stickles.
On appeal, the plaintiff claims that the court erred by
(1) failing to allow the plaintiff to present evidence on
her motion for contempt, motion to compel, and motion
for sanctions, and (2) finding a substantial change in
circumstances that supported a modification of the
financial orders.1 We affirm the court’s judgment as to
the plaintiff’s motion to compel, motion for contempt
and motion for sanctions, and reverse in part the defen-
dant’s motion for modification.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In March, 2011,
the plaintiff brought an action seeking dissolution of
the parties’ marriage due to an irretrievable breakdown
of the marital relationship. After five days of trial, the
court, Pinkus, J., issued a memorandum of decision
on April 17, 2012, in which it rendered judgment dissolv-
ing the parties’ marriage and ordering, inter alia, the
defendant to pay $850 per week as alimony to the plain-
tiff for a period of ten years. Additionally, the court
ordered the defendant to pay $440 per week as child
support and maintain at least a $1 million life insurance
policy naming the plaintiff as the irrevocable benefi-
ciary for as long as he has an obligation to pay alimony
or child support. Finally, the court ordered that the
plaintiff would be entitled to earn $15,000 without the
court considering it a substantial change in circum-
stances.
The following month, on May 30, 2012, the defendant
filed a motion for modification (first motion for modifi-
cation) requesting a change in the financial orders. He
alleged that a substantial change in circumstances had
occurred because he had become unemployed. After a
hearing on September 10, 2012, the court, Pinkus, J.,
found that the defendant had caused the termination
of his employment and denied his motion for modifi-
cation.
On November 20, 2012, the plaintiff filed a motion to
compel and a motion for contempt, arguing, inter alia,
that the defendant had failed to meet his financial obli-
gations pursuant to the dissolution judgment. The court
scheduled these motions for a hearing on January 14,
2013. Prior to the hearing on the plaintiff’s motions,
however, on January 7, 2013, the defendant filed a
motion for modification (second motion for modifica-
tion) seeking, inter alia, a decrease in the defendant’s
alimony and child support obligations and a reduction
in his required life insurance coverage.2 In his second
motion for modification, the defendant argued that
there was now a substantial change in circumstances
because he recently had obtained employment and was
making less money than he had been at the time of the
dissolution when the court entered the original orders.
The plaintiff filed an objection to the defendant’s second
motion for modification, claiming, inter alia, that, like
his unemployment, the decrease in the defendant’s sal-
ary was due to the defendant’s culpable conduct.
The court heard arguments on the second motion
for modification on January 14, 2013, when the parties
appeared in court for the plaintiff’s motion to compel
and motion for contempt, and, on January 15, 2013, the
court ordered, inter alia, the defendant to pay child
support in the amount of $382 per week, alimony in
the amount of $525 per week, and that the defendant
would be entitled to reduce his life insurance policy to
$750,000 (financial orders). The plaintiff filed a motion
to reargue that the court subsequently denied. This
appeal followed.
Following oral argument before this court, this court
sua sponte ordered the trial court to articulate the fac-
tual and legal bases for its order of January 15, 2013,
granting in part the defendant’s second motion for modi-
fication. This court ordered the trial court to particu-
larly address the basis for the requisite finding of a
substantial change in circumstances. The court articu-
lated that it found that at the time of the divorce judg-
ment, ‘‘the defendant was earning $145,000 per year
plus a bonus, which was based upon performance and
not guaranteed. At the hearing on January 14, 2013, the
plaintiff’s uncontested financial affidavit indicated that
he was earning $120,000 per year. This $25,000 reduc-
tion in pay was the basis for the finding of a substantial
change in circumstances.’’
‘‘The standard of review in family matters is well
settled. An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Weinstein v. Weinstein, 104 Conn.
App. 482, 487–88, 934 A.2d 306 (2007), cert. denied, 285
Conn. 911, 943 A.2d 472 (2008).
I
The plaintiff claims that the court erred by failing
to allow her to present evidence on her motion for
contempt, motion to compel, and motion for sanctions.
Her claim is unavailing.
The following additional facts are necessary for our
review of the plaintiff’s claim. On January 10, 2013,
prior to the January, 2013 hearing and subsequent to the
defendant’s filing of his second motion for modification,
the plaintiff filed a motion for sanctions. At the January
hearing, the court decided to hear all of the parties’
motions at the same time.
The court heard argument and evidence on the defen-
dant’s motion for modification first, and then allowed
the plaintiff to present her motion for contempt, motion
to compel and motion for sanctions. Although the plain-
tiff argues that the court did not allow her to present
evidence on her motions, she does not state what evi-
dence she wanted or attempted to present, nor does
she indicate any instances where she offered evidence
and the court denied her the opportunity to present it.
Additionally, the record reveals only two instances in
which the plaintiff moved to present evidence to the
court. The first time the plaintiff offered evidence, she
offered a letter from her previous employer allegedly
stating why she was no longer employed. The defen-
dant’s attorney objected based on hearsay, and the
court sustained the objection and marked the letter
for identification. The plaintiff eventually withdrew this
exhibit. The plaintiff later offered her pay stubs as evi-
dence. The defendant’s attorney made no objection and
they were entered as full exhibits.
An appellant bears the burden to show that there
was error from which she appeals. See Ciucias v. Valley
Cab Co., Inc., 3 Conn. App. 468, 470, 489 A.2d 411 (1985).
‘‘It is also the responsibility of an appellant to secure
an adequate record for our review.’’ Mihalyak v. Miha-
lyak, 11 Conn. App. 610, 620, 529 A.2d 213 (1987). The
plaintiff has failed to identify other specific instances
where the court allegedly rejected any evidence pre-
sented by her or denied her the opportunity to be heard
on her motions. In fact, the record reveals that the court
repeatedly asked the plaintiff what she wanted it to do
because it wanted to address her concerns.3 On the
basis of the record before us, we determine that the
plaintiff had ample opportunity to have her motions
heard and present supporting evidence for the court to
consider, and that the plaintiff has failed to meet her
burden of showing that the court abused its discretion.
Accordingly, her claim fails.
II
The plaintiff also claims that the court erred in grant-
because it erroneously found a substantial change in
circumstances that warranted a modification of the
financial orders. The plaintiff argues that the court’s
finding was erroneous because it failed to include the
defendant’s auto allowance in its calculation of the
defendant’s income. We agree.
At the January, 2013 hearing, the defendant filed a
financial statement averring that his gross weekly
income was $2307.69. Under section twelve, which is
labeled ‘‘other,’’ the defendant indicated that he
received $133.85 per week from his employer ‘‘as partial
reimbursement for expenses incurred.’’ He did not,
however, factor the additional $133.85 into his total
weekly gross or net income.
Additionally, appended to his financial affidavit was
the defendant’s pay stub. Under the section marked,
‘‘earnings,’’ it listed an auto allowance in the biweekly
amount of $290.4 The court originally made no specific
findings as to the defendant’s income; however, after
this court ordered the trial court to articulate the factual
and legal bases for its judgment on the defendant’s
motion for modification, the trial court articulated that
it found that the defendant was earning $120,000 per
year. The plaintiff argues that this finding is erroneous
because the court failed to include the auto allowance
listed on the defendant’s paystub.
Modification of alimony and child support is gov-
erned by General Statutes § 46b-86 (a), which provides
in relevant part: ‘‘Unless and to the extent that the
decree precludes modification . . . an order for ali-
mony or support . . . may, at any time thereafter, be
. . . altered or modified . . . upon a showing of a sub-
stantial change in the circumstances of either party.
. . .’’ General Statutes § 46b-86 (a); see Schade v.
Schade, 110 Conn. App. 57, 62, 954 A.2d 846 (2008),
cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008);
Weinstein v. Weinstein, supra, 104 Conn. App. 491.
‘‘We previously have explained the specific method
by which a trial court should proceed with a motion
brought pursuant to § 46b-86 (a). When presented with
a motion for modification, a court must first determine
whether there has been a substantial change in the
financial circumstances of one or both of the parties.
. . . Second, if the court finds a substantial change in
circumstances, it may properly consider the motion
and, on the basis of the [General Statutes] § 46b-82
criteria, make an order for modification. . . . The
court has the authority to issue a modification only if
it conforms the order to the distinct and definite
changes in the circumstances of the parties. . . . Sim-
ply put, before the court may modify an alimony award
[or child support order] pursuant to § 46b-86, it must
make a threshold finding of a substantial change in
circumstances with respect to one of the parties. . . .
‘‘The party seeking the modification has the burden
of proving a substantial change in circumstances. . . .
To obtain a modification, the moving party must demon-
strate that circumstances have changed since the last
court order such that it would be unjust or inequitable
to hold either party to it. Because the establishment of
changed circumstances is a condition precedent to a
party’s relief, it is pertinent for the trial court to inquire
as to what, if any, new circumstance warrants a modifi-
cation of the existing order. In making such an inquiry,
the trial court’s discretion is essential.’’ (Internal quota-
tion marks omitted.) O’Donnell v. Bozzuti, 148 Conn.
App. 80, 87, 84 A.3d 479 (2014).
Section 46b-215a-1 (11) (A) (vi) of the Child Support
and Arrearage Guidelines (2005) defines gross income
for the purpose of calculating child support orders as
including ‘‘employment perquisites and in-kind compen-
sation (any basic maintenance or special need such as
food, shelter or transportation provided on a recurrent
basis in lieu of or in addition to salary or wages).’’
(Emphasis added.) Upon our review of the record, we
conclude that the court considered only the defendant’s
base salary in its finding that he made $120,000 per
year, as that is the total of the defendant’s gross earnings
of $2307.69 per week for fifty-two weeks. The court
had before it evidence that the defendant received a
biweekly auto allowance of $290, and this evidence was
underscored by the defendant’s affirmation stated in his
financial affidavit. Further, the court made no finding as
to why it had failed to include the defendant’s auto
allowance in its calculation of his income. Therefore,
we must necessarily conclude that the court improperly
applied the applicable law and that it was unreasonable
for the court to find as it did. See Simms v. Chaisson,
277 Conn. 319, 325, 890 A.2d 548 (2006) (our review is
limited to ‘‘whether the trial court correctly applied the
law and reasonably could have reached the conclusion
that it did’’ [internal quotation marks omitted]). Because
this erroneous income determination was the court’s
basis for finding a substantial change in circumstances,
and that amount is the basis for all of the court’s new
financial orders, the court’s judgment modifying the
financial orders must be reversed. Accordingly, we con-
clude that the court abused its discretion.
The judgment is reversed only as to the modification
of the financial orders and the case is remanded with
direction to deny the motion for modification with
respect to the financial orders; the judgment is affirmed
in all other respects.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiff also claims that the court erred by: (1) failing to dismiss
the defendant’s motion for modification pursuant to the doctrine of res
judicata; (2) proceeding with the defendant’s motion for modification when
the plaintiff did not have sufficient time to obtain discovery from the defen-
dant; (3) imputing the plaintiff with an unsubstantiated earning capacity;
and (4) finding a change in circumstances when the original dissolution
judgment allowed her to make $15,000 in income without triggering the
modification provision. All of these claims pertain to the court’s decision
regarding the defendant’s motion for modification. Because we conclude
that the court erred by not including the defendant’s auto allowance in its
calculation of the defendant’s income, and, accordingly, reverse the court’s
judgment on that ground, we need not reach the merits these claims.
2
The defendant also filed a motion to compel on January 7, 2013, when
he filed his second motion for modification. The court’s disposition on this
motion, however, was not challenged by the plaintiff in this appeal.
3
At one point, the court stated: ‘‘Tell me what you want be—because I
want—I don’t want you to leave here feeling as though you haven’t been
heard.’’
4
The defendant’s attorney represented at the beginning of the hearing
that the defendant was paid every two weeks.