Lynch v. Lynch

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DANIEL LYNCH v. LAURIE LYNCH
(AC 35413)
Lavine, Bear and Borden, Js.*
Argued March 18—officially released September 30, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Howard T. Owens, Jr., judge trial referee
[dissolution judgment]; Adelman, J. [orders as to
alimony payment, award of appellate counsel fees,
motions for modification, contempt, reargument, order
reducing amount of alimony overpayment, motions to
stay alimony, support obligations, for order to offset
alimony payments].)
Daniel M. Lynch, self-represented, the appellant
(plaintiff).
Christopher T. Goulden, for the appellee (defendant).
Opinion
BEAR, J. The present matter previously was before
this court in Lynch v. Lynch, 135 Conn. App. 40, 43
A.3d 667 (2012) (Lynch I). This court reversed in part
the dissolution judgment of the trial court, Hon. How-
ard T. Owens, Jr., judge trial referee, ‘‘as to the financial
orders only, except with respect to the portion of the
court’s order granting the defendant’s February 4, 2009
pendente lite motion for modification that applies retro-
actively from February 4, 2009, until the date of judg-
ment,’’ and accordingly remanded the matter. Id., 58.
The trial court, Adelman, J., subsequently entered new
financial orders pursuant to Lynch I from which the
plaintiff, Daniel Lynch, now appeals. The plaintiff also
appeals from the court’s orders with respect to several
motions filed after Lynch I and both before and after
the court’s December 13, 2012 memorandum of decision
in this appeal.
The plaintiff specifically claims that the court improp-
erly (1) awarded alimony to the defendant, Laurie
Lynch, and not to him; (2) denied his request for equita-
ble financial relief in his motion for modification, even
though he had met his burden of establishing a substan-
tial change in circumstances; (3) granted the defen-
dant’s October 11, 2012 motion for contempt; (4)
granted the defendant’s May 1, 2013 postjudgment
motion for contempt; (5) calculated the reimbursement
for stipulated shared household expenses owed to him
by the defendant; (6) failed to calculate a pendente lite
arrearage owed to him by the defendant; (7) awarded
$7500 in appellate attorney’s fees to the defendant; (8)
entered financial orders that were inequitable to him
and that demonstrated the court’s bias against him; and
(9) failed to hear certain of his motions and denied
others without consideration of his due process rights.
We disagree with all nine of the plaintiff’s claims and
affirm the judgment of the trial court.
I
FACTS AND PROCEDURAL HISTORY
A
Previous Appeal
As this court noted in Lynch I, ‘‘[t]he parties were
married in 1992, and two children were born of the
marriage.1 On September 14, 2009,2 the court rendered
judgment dissolving the marriage on the ground of irre-
trievable breakdown.’’ (Footnotes altered.) Id., 42. Part
of the dissolution judgment involved the court’s deci-
sion to grant the defendant’s February 4, 2009 pendente
lite motion to modify the parties’ December 11, 2008
stipulation that they would equally divide the payment
of the household expenses.3 Id., 43. The defendant’s
motion alleged that the plaintiff’s income had increased
and, therefore, asked the court to increase, in turn, the
plaintiff’s payment obligation. Id. The court accordingly
‘‘ordered the plaintiff to pay 60 percent and the defen-
dant to pay 40 percent of the obligations set forth in
the stipulation’’; id.; from February 4, 2009, to the date
of the sale and transfer of the marital home.4 Also among
the financial orders entered by the court were an ali-
mony award of $200 per week and a child support award
of $135 per week, both to be paid by the plaintiff to
the defendant. Id.
The plaintiff appealed from these orders and filed
four subsequent amended appeals to challenge certain
of the court’s postjudgment rulings as well, one of which
awarded $7500 in appellate attorney’s fees to the defen-
dant. Id., 44. We reversed that part of the dissolution
judgment that ordered the plaintiff to pay to the defen-
dant 30 percent of the value of his unsold books on
the ground that the court impermissibly considered the
plaintiff’s intellectual property twice for alimony and
property distribution purposes. Id., 52–53. We then
reversed almost all of the remaining financial orders5
in accordance with the principle that ‘‘[t]he [financial]
orders [in a domestic relations matter] are interwoven
and constitute a carefully crafted mosaic [and] [w]hen
we disrupt a single tile in this mosaic, we place in doubt
the propriety of other financial orders that the trial
court may have deemed equitable in relation to the
entire distribution scheme.’’ (Internal quotation marks
omitted.) Id., 54. We affirmed the court’s decision to
grant the defendant’s motion for modification, but it
did so only with respect to the period of time between
February 4 and September 14, 2009. Id., 46–48.
Also relevant to this appeal is our conclusion in Lynch
I that the ‘‘court improperly failed to address [the plain-
tiff’s] January 29, 2009 pendente lite motion for con-
tempt,’’ in which he alleged that the defendant had failed
to reimburse him for household expenses that he had
paid in full, even though they were subject to the 2008
stipulation. Id., 49. ‘‘At trial, the defendant testified that
she believed she owed the plaintiff some money, but
that she did not know how much because she had no
documentation to show exactly what he had paid
toward the expenses at issue in the stipulation.’’ Id.
The court nonetheless failed to address this conceded
arrearage, even though it granted the defendant’s
motion for modification. Id. We concluded that the
court’s omission constituted an impermissible retroac-
tive modification of the stipulation under General Stat-
utes § 46b-86 and a violation of the plaintiff’s vested
property right in the arrearage. Id., 50. Therefore, in
remanding the matter for reconsideration of the finan-
cial orders, we also ordered that the court determine
‘‘the amount of the pendente lite arrearage to be
included in the judgment, along with an appropriate
order for its payment.’’ Id., 51.
The rescript in Lynch I provided: ‘‘The judgment is
reversed as to the financial orders only, except with
respect to the portion of the court’s order granting the
defendant’s February 4, 2009 pendente lite motion for
modification that applies retroactively from February
4, 2009, until the date of judgment, which is affirmed,
and the case is remanded for further proceedings in
accordance with this opinion.’’ Id., 58.
B
Present Appeal
1
Trial Court’s Memorandum of Decision on Remand
The court heard the present matter on remand over
five days between October 2 and October 19, 2012, and
it filed its memorandum of decision on December 13,
2012. It found in relevant part: ‘‘The plaintiff’s employ-
ment has been, and continues to be, in computer
research relating to genealogical study. He had worked
for various companies over the years, but has been self-
employed since March, 2003, when he started Mattatuck
Consulting, LLC. It was his testimony that his last job
prior to that date was severely hampered by his inability
to be able to relocate to Utah to please his employer.
Additional job opportunities required him to relocate
as well. Those were not pursued. That was because,
according to the plaintiff, the defendant refused to move
out of Connecticut. She [did] not dispute the fact that
she was not willing to relocate.
‘‘His consulting business has been fairly successful,
and his income has been a combination of consulting,
writing and speaking engagements. In 2008, he authored
a book titled ‘Google Your Family Tree.’ That publica-
tion enjoyed some success and boosted his income in
that year and the next. He testified that the book is
now four years old and in the technology field that is
ancient. He claim[ed] almost no income from the book
at [the time of the remand hearings] although he did
admit in cross-examination that the book was . . .
used as a text in [a] course at Boston University, which
resulted in some extra book sales, but that he received
no direct or other compensation from the college for
the use of the text. He also testified that Mattatuck
Consulting, LLC, has no intrinsic value and, other than
some computer equipment, it has virtually no assets.
Over the years, his self-employment income has ranged
from gross earnings of $73,500 with gross income of
$37,800 in 2011, to gross earnings of $108,800 with gross
income of $64,700 in 2010, and to gross earnings of
$150,700 with gross income of $67,600 in 2009. For
[2012], he claim[ed] a gross income of almost $45,000
through the end of September with gross earnings of
almost $67,600.
‘‘The defendant was unemployed at the time of the
trial, having been laid off in January of [2012], but she
had been employed for most of the marriage. Her
employment has been for a variety of employers, all in
the areas of business to business sales. The defendant’s
earnings ranged from $74,560 in 2009 to $57,800 in 2010,
to $71,500 in 2011, and to unemployment [in 2012] in
the amount of $525 per week.’’
The court refashioned the financial orders on remand
in two stages. First, it crafted the orders in accordance
with our directions in Lynch I and the facts as they
were at the time of the dissolution. It then modified
those orders in accordance with the motions for modifi-
cation that it asked both parties to file during the
remand hearings, in order to account for the changes
in circumstances that had occurred since the time of
the dissolution proceedings. The court undertook this
approach pursuant to Sunbury v. Sunbury, 216 Conn.
673, 676–77, 583 A.2d 636 (1990), in which our Supreme
Court held that a trial court must craft property distribu-
tion orders on remand in accordance with the facts as
they existed at the time of the dissolution judgment,
not at the time of the remand.
a
Financial Orders on Remand
i
Plaintiff’s January 29, 2009 Motion for Contempt,
Regarding Reimbursement for Shared
Household Expenses
The court first addressed the plaintiff’s January 29,
2009 motion for contempt, which the dissolution court
had failed to do. The plaintiff withdrew the motion on
October 1, 2012, because he believed that the remand
hearings would subsume the arguments and evidence
relevant thereto, but he also stated on the face of his
withdrawal that he ‘‘[did] not in any way concede the
contents of the motion.’’ The court concluded on the
basis of the evidence that it was difficult to determine
if the defendant owed anything to the plaintiff for the
period of time covered by the motion for contempt,
and to the extent that certain evidence indicated that
there was an arrearage, such arrearage was ‘‘de mini-
mis,’’ which prompted the court to state that it
‘‘decline[d] to rule further on the issue.’’
ii
Defendant’s February 4, 2009 Motion for Modification,
Regarding Division of Shared Household Expenses
The court then considered the defendant’s February
4, 2009 motion for modification and found that it had
not been remanded, and therefore, the order remained
in full force and effect, retroactive to February 4, 2009.
The plaintiff has not directly challenged this finding in
any of his nine claims on appeal.6
iii
Alimony and Attorney’s Fees Awards to Defendant
and Factual Findings Relevant Thereto
The court next found in relevant part with respect
to the time of the dissolution judgment that ‘‘[n]either
party bore a greater degree of fault for [the marital]
breakdown than the other . . . .’’ (Citation omitted.)
‘‘In September, 2009, the plaintiff was self-employed
and had a gross weekly income of approximately $1300.
The defendant was employed with a gross weekly
income at that time of a little over $1400.7 The parties
are the joint owners of a single-family home located
[in Trumbull]. The home had a value as listed on the
defendant’s financial affidavit of $560,000 with a total
outstanding mortgage of $210,533 for an estimated
equity of $349,467. At the time of the dissolution, the
plaintiff had retirement accounts of approximately
$114,000, the majority of which was accumulated during
the time of the marriage. The defendant had deferred
income assets valued at $13,600, which [are] also a
marital asset. Both parties have had medical issues in
the past. Currently, as well as in 2009, neither has issues
that would prevent them from being employed to their
fullest capacity.’’ (Footnotes altered.) The court subse-
quently ordered the plaintiff to pay to the defendant,
inter alia, (1) periodic alimony of $100 per week until the
death of either party or September 14, 2019, whichever
occurred first, and (2) appellate attorney’s fees of $7500.
b
Parties’ Motions for Modification
The court then addressed both parties’ motions for
modification: ‘‘The defendant filed her motion . . . on
October 11, 2012. In said motion, she alleged that
although both parties were residing together with the
children at the time of the dissolution, that changed
when she obtained exclusive possession of the home
in 2010. Furthermore, one of the minor children has
attained majority and now attends college. Additionally,
the defendant is currently unemployed and is paying
for her medical insurance and that of her children
through COBRA.8
‘‘The plaintiff filed his motion . . . also on October
11, 2012. He claims significant changes as well, includ-
ing his loss of medical insurance coverage once the
dissolution was finalized. He points to the fact that he
was forced to vacate the marital home on May 18, 2010,
incurring housing costs of his own as well as being
obligated to contribute to the living expenses of the
children and the defendant. He also claims that the
recent legislation passed in Connecticut that obligates
out-of-state Internet retailers to collect Connecticut
sales tax in instances where they pay commissions to
their independent contractors or other representatives
who reside and do business in the state has had a direct
and negative impact on his income. Although there may
have been some immediate reduction, his reported
income does not support this claim in the long term.’’
(Citation omitted; footnotes altered.) Among the orders
that the plaintiff requested in his motion for modifica-
tion were (1) that the defendant pay alimony to him,
retroactive to September 14, 2009; (2) that the defendant
reimburse him for all alimony and child support pay-
ments, retroactive to September 14, 2009; and (3) that
the parties equally share the mortgage and utility pay-
ments from September 14, 2009, to May 18, 2010, and
equally share the mortgage payments and his rent pay-
ments thereafter.
The court concluded: ‘‘In the present case, both par-
ties have easily met their respective burdens of showing
a substantial change in circumstances.’’ It thus entered
several modified financial orders, three of which are
relevant to this appeal.
i
Alimony Arrearage Owed to Plaintiff by Defendant
The first modified order that is a subject of this appeal
is the court’s determination that the plaintiff had over-
paid his alimony obligation because he had paid $26,215
in accordance with the original order of $200 per week,
even though the order on remand of $100 per week
provided that he owed a total of $17,000 through Decem-
ber 15, 2012. The court did not finalize the amount of
the overpayment at the time that it filed the decision,
however, and instead ordered the parties to have a tax
professional determine the amount in light of the tax
consequences of the alimony payments to both parties
and to file the tax professional’s report with the court.
After the parties complied with this order, the court
filed a supplemental memorandum of decision on Feb-
ruary 7, 2013, in which it stated: ‘‘The alimony overpay-
ment of $9215 found by the court . . . is reduced to
$7832 in consideration of the tax consequences to
both parties.’’
ii
Reimbursement for Shared Household Expenses
Owed to Plaintiff by Defendant
The second modified order that is a subject of this
appeal is the court’s determination that the defendant
owed a reimbursement to the plaintiff for payments
made pursuant to the 2008 stipulation during the period
of time between September 14, 2009, and the beginning
of the remand hearings. It noted that it was not per-
suaded by the plaintiff’s position that his housing costs
and medical insurance costs were joint household
expenses covered by the stipulation. It added, however,
that it was persuaded that the plaintiff had paid
$54,524.26 in mortgage and utility payments for the
benefit of the defendant and for which he was entitled
to reimbursement.9 The court offset this amount by the
amount owed to the defendant by the plaintiff, which
the court fashioned by adding the amount conceded by
the plaintiff—$59,144—and the amount claimed by the
defendant—$65,000—and then dividing the sum in half.
The ‘‘compromise figure’’ found by the court equaled
$31,306, and when the court subtracted it from the
amount owed by the defendant to the plaintiff for mort-
gage and utility payments, it calculated a difference of
$23,488.26, which it ordered as the amount that the
defendant owed to the plaintiff for ‘‘overpayment of
shared expenses prior to the start of the current trial
. . . .’’ (Citation omitted.)
iii
Defendant’s October 11, 2012 Motion for Contempt,
Regarding Plaintiff’s Failure to Pay Alimony
and Child Support Obligations
Under Original Orders
The third modified order that is a subject of this
appeal is the court’s consideration of a motion for con-
tempt filed by the defendant on October 11, 2012, in
which she alleged that the plaintiff had stopped paying
his alimony obligation of $200 per week and his child
support obligation of $135 per week, even though the
appeal of the orders did not stay them, per Practice
Book § 61-11 (b). In his objection to the motion, the
plaintiff argued that this court’s reversal of the alimony
and child support orders terminated his obligation to
pay them. The court found that the plaintiff ‘‘admit[ted]
that he stopped making the payments and offered no
real reason for that decision. Ironically, he paid the
obligation for almost all of the time his appeal was
pending, as is required by § 61-11 (b) of the Practice
Book and only stopped some thirteen weeks before the
order was vacated and remanded for a new hearing.’’
The court therefore granted the motion and ordered
that the plaintiff pay $4355 to the defendant, represent-
ing $2600 ($200 x 13 weeks) in unpaid alimony and
$1755 ($135 x 13 weeks) in unpaid child support.
c
Plaintiff’s Appeal of Trial Court’s Judgment Rendered
After Filing of Memorandum of Decision
The plaintiff on December 31, 2012, filed a motion
for clarification of the memorandum of decision and a
motion for reargument and reconsideration on January
2, 2013. The court entered an order on January 3, 2013,
that addressed the plaintiff’s requests for clarification,
and denied his motion for reargument and reconsidera-
tion on the ground that ‘‘within the mosaic of its orders
it reviewed and considered all claims and evidence pre-
sented. The decision reflects the court’s determination
of what comprised an equitable division of the assets
and liabilities of the parties.’’ The plaintiff subsequently
filed his appeal on February 14, 2013, from the judgment
rendered in the December 13, 2012 memorandum of
decision and filed an amended appeal on February 28,
2013, after the court issued a supplemental memoran-
dum of decision on February 7, 2013.
2
Relevant Motions Filed Before and After Trial Court’s
December 13, 2012 Memorandum of Decision
The following motions filed before and after the
court’s December 13, 2012 memorandum of decision
are also subjects of this appeal. On April 27, 2012, the
plaintiff filed a motion for exclusive possession of the
marital home. The court, Wolven, J., entered an order
on June 28, 2012, and ruled with respect to this motion:
‘‘No action will be taken on this motion. This motion
was previously argued on [January 13, 2011] and denied.
The decision was appealed by the plaintiff and
untouched by the Appellate Court. Moreover, the issue
of the marital property will be fully relitigated in Middle-
town on the retrial of the financial matters in this case
scheduled for October 1-5, 2012. Therefore the hearing
scheduled for July 5, 2012 will not go forward.’’ The
plaintiff filed a motion to reargue and reconsider this
order on July 6, 2012, and the court denied it on July
30, 2012. The plaintiff then filed a notice of intent to
appeal on August 14, 2012.
On March 26, 2013, the plaintiff filed an emergency
postjudgment motion for order in which he requested
that the court order the defendant to transfer certain
funds and assume certain mortgage payment obliga-
tions in response to the issuance of a default and fore-
closure notice regarding the marital home. The docket
indicates that the court, Adelman, J., denied the motion
on April 1, 2013, and the transcript for the hearing held
on that date indicates that the ground for the court’s
ruling was that the motion was moot.
On April 12, 2013, the plaintiff filed a request in which
he asked the court (1) to consider on the papers two
motions that he filed on February 14, 2013, and (2) to
issue a discretionary stay of the December 13, 2012
financial orders in the event that it decided to hold a
hearing before it decided the two motions. The first
February 14, 2013 motion was a request for a stay of
the plaintiff’s alimony and support obligations during
the pendency of this appeal. The second February 14,
2013 motion was a postjudgment motion for order
requesting, inter alia, that the court offset the plaintiff’s
weekly $100 alimony obligation by an equal weekly
amount corresponding to the overpayments and reim-
bursements found by the court. The plaintiff acknowl-
edged that the court had rescheduled the hearing for
the two motions several times in order to accommodate
both parties. The court entered an order on May 1, 2013,
in which it denied both February 14, 2013 motions and
declined to take action on the April 12, 2013 motion,
which it deemed moot. The plaintiff on May 20, 2013,
filed an amended appeal challenging the May 1, 2013
order.
Finally, on May 1, 2013, the defendant filed a motion
for contempt alleging that the plaintiff had not complied
with his obligation under the December 13, 2012 memo-
randum of decision to pay $100 per week in periodic
alimony. The plaintiff on May 20, 2013, then filed a
motion for modification and a motion to stay the execu-
tion of the judgment on the motion for contempt. On
that date,10 the court entered an order in which it (1)
found the plaintiff in contempt, (2) suspended his ali-
mony obligation from the week of May 26, 2013, to
the week of June 24, 2013; (3) determined that the
suspended alimony payments would accrue and be
added to the alimony arrearage of $2100 after June 24,
2013, for a total alimony arrearage of $2500; and (4)
transferred the matter from the regional family trial
docket in Middletown back to the judicial district of
Fairfield for resolution of the plaintiff’s motion for mod-
ification11 and all future motions. The plaintiff on June
7, 2013, filed an amended appeal challenging the May
20, 2013 order and the court’s failure to decide his
motion for modification at the same time as the defen-
dant’s motion for contempt. Additional facts and proce-
dural history will be set forth as necessary.
II
LEGAL STANDARDS
A
Standard of Review
‘‘In fashioning its financial orders [in a domestic rela-
tions matter], the court has broad discretion, and [j]udi-
cial review of a trial court’s exercise of [this] broad
discretion . . . is limited to the questions of whether
the . . . court correctly applied the law and could rea-
sonably have concluded as it did. . . . In making those
determinations, we allow every reasonable presump-
tion . . . in favor of the correctness of [the trial
court’s] action. . . . That standard of review reflects
the sound policy that the trial court has the unique
opportunity to view the parties and their testimony, and
is therefore in the best position to assess all of the
circumstances surrounding a dissolution action, includ-
ing such factors as the demeanor and the attitude of
the parties. . . . We likewise note that [a]ppellate
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 on this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence in the record to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Citation omitted; internal quotation marks omitted.)
Schoenborn v. Schoenborn, 144 Conn. App. 846, 856–57,
74 A.3d 482 (2013).
B
Self-Represented Litigants
Although the plaintiff was represented by an attorney
during the remand hearings, he was self-represented
during several of the other trial court proceedings at
issue, including the motions discussed in part I B 2 of
this opinion, and currently is self-represented in this
appeal. ‘‘[I]t is the established policy of the Connecticut
courts to be solicitous of [self-represented] litigants and
when it does not interfere with the rights of other parties
to construe the rules of practice liberally in favor of
the [self-represented] party. . . . Nonetheless,
[a]lthough we allow [self-represented] litigants some
latitude, the right of self-representation provides no
attendant license not to comply with relevant rules of
procedural and substantive law.’’ (Citation omitted;
internal quotation marks omitted.) New Haven v.
Bonner, 272 Conn. 489, 497–98, 863 A.2d 680 (2005).
III
PLAINTIFF’S CLAIMS
Again, we note that the plaintiff claims that the court
improperly (1) awarded alimony to the defendant and
not to him; (2) denied his request for equitable financial
relief in his motion for modification, even though he
had met his burden of establishing a substantial change
in circumstances; (3) granted the defendant’s October
11, 2012 motion for contempt; (4) granted the defen-
dant’s May 1, 2013 postjudgment motion for contempt;
(5) calculated the reimbursement for stipulated shared
household expenses owed to him by the defendant; (6)
failed to calculate a pendente lite arrearage owed to
him by the defendant; (7) awarded $7500 in appellate
attorney’s fees to the defendant; (8) entered financial
orders that were inequitable to him and that demon-
strated the court’s bias against him; and (9) failed to
hear certain of his motions and denied others without
consideration of his due process rights. We now address
each of the plaintiff’s claims in turn.
A
Claim One: Award of Alimony from
Plaintiff to Defendant
The plaintiff first claims that the court abused its
discretion in ordering him to pay alimony to the defen-
dant and in not ordering the defendant to pay alimony
to him because the evidence demonstrated that she had
a higher level of income, a lower level of debt, and
better employment prospects at all times relevant to
the present matter. We are not persuaded. We address
only the alimony orders pertaining to the time of the
dissolution judgment in resolving this claim because
we address the alimony orders pertaining to the time
after the dissolution judgment in resolving the plaintiff’s
claim regarding his motion for modification, which
overlaps with this claim. See part III B of this opinion.
‘‘We begin our analysis by noting that . . . the pur-
pose of alimony [is] the obligation of support that
spouses assume toward each other by virtue of the
marriage. . . . This court has stated that [a]limony is
always represented by money and is damages to com-
pensate for loss of marital support and maintenance.
. . . In other words, alimony represents the court’s
finding, measured in dollars, of the financial needs of
the receiving spouse at the time of the dissolution. . . .
‘‘[General Statutes §] 46b-8212 governs awards of ali-
mony. That section requires the trial court to consider
the length of the marriage, the causes for the . . . dis-
solution of the marriage . . . the age, health, station,
occupation, amount and sources of income, vocational
skills, employability, estate and needs of each of the
parties. . . . In awarding alimony, [t]he court must
consider all of these criteria. . . . It need not, however,
make explicit reference to the statutory criteria that
it considered in making its decision or make express
findings as to each statutory factor.’’ (Citation omitted;
footnote added; internal quotation marks omitted.) Wie-
gand v. Wiegand, 129 Conn. App. 526, 535–36, 21 A.3d
489 (2011).
The present matter is similar to Gamble-Perugini v.
Perugini, 112 Conn. App. 231, 237, 962 A.2d 192, cert.
denied, 291 Conn. 915, 970 A.2d 727 (2009), in which
this court affirmed a periodic alimony award to the
plaintiff wife of $100 per week for ten years, even though
the defendant husband argued that she would earn sig-
nificant income from her work as a real estate agent
and from the rental properties that she received in the
distribution of the marital assets. The trial court found:
‘‘The plaintiff earned $37,594 in 2006 and $14,700 in 2005
in real estate commissions. Although the defendant had
not . . . filed his 2006 tax return [at the time of trial],
he reported an income of $67,025 for 2005.’’ Id., 233. It
also found that the share of the rental properties allo-
cated to the plaintiff had a fair market value of
$2,057,061. Id., 236. This court concluded: ‘‘Although
there is evidentiary support for the defendant’s claim
that the plaintiff received properties from which she
will earn rental income and that she also works as
a real estate agent, testimony regarding the parties’
marriage also revealed that, for most of the years the
parties were together, the plaintiff was the primary care-
taker for the children and that her earnings from
employment were modest.’’ Id., 237.
In the present matter, even though the court found
that ‘‘[b]oth parties had an average [weekly] gross
income in the $1300 to $1400 range’’ at the time of the
dissolution judgment, it also found that ‘‘[t]he plaintiff,
having been employed for a longer period of time during
the marriage while the defendant was a fulltime mother,
had a much larger amount of deferred income assets
as of the original trial.’’ (Citation omitted.) The evidence
established that the defendant did not have fulltime
paid employment from 1993 to 2004. It also established
that, at the time of the dissolution judgment, the plaintiff
had $114,000 in his retirement accounts while the defen-
dant had $13,600 in deferred income assets. The court
labeled both as marital assets but did not subject these
assets to division or redistribution in fashioning the
financial orders on remand in express accordance with,
inter alia, § 46b-81, which governs property distribution
awards in dissolution actions, and § 46b-82. As this
court concluded in Gamble-Perugini, ‘‘[u]nder all the
circumstances presented to’’ us in this matter, we con-
clude that the trial court’s ‘‘order for the payment of
durational alimony was not an abuse of discretion.’’
Gamble-Perugini v. Perugini, supra, 112 Conn. App.
237.
We also conclude that the court did not abuse its
discretion in declining to award alimony to the plaintiff
at the time of the dissolution judgment.13 The circum-
stances presented to the court do not rise to the level
of those that have prompted this court to label a failure
to award alimony as an abuse of discretion. For exam-
ple, in Kovalsick v. Kovalsick, 125 Conn. App. 265, 270–
75, 7 A.3d 924 (2010), this court held that the trial court
abused its discretion in failing to award time limited
alimony to the plaintiff wife where (1) her historical
income never exceeded $25,000, while the defendant
husband’s historical income was approximately
$125,000 per year; (2) there was no evidence that she
could increase her earning capacity without additional
education; and (3) ‘‘there was evidence that the plaintiff
was not able to meet her obligations’’; id., 274; war-
ranting the conclusion that ‘‘[i]t [was] reasonably fore-
seeable that, if the court’s financial orders [were]
allowed to stand and the plaintiff continue[d] to be
responsible for the entire debt but [was] unable either
to increase her earning capacity or receive alimony or
a portion of the marital property, she could well be in
dire financial straits.’’ Id., 274–75.
This court likewise held in Wiegand v. Wiegand,
supra, 129 Conn. App. 539, that the trial court abused
its discretion in failing to award some form of alimony
to the plaintiff husband where, ‘‘[o]n the date of the
dissolution hearing, the plaintiff had little or no income,
while the defendant had a net income of approximately
$889 weekly. The plaintiff was ordered to assume and
to pay a substantial portion of the marital debt, despite
having little or no income to pay that debt, and the
court did not make any findings regarding his prospects
for employment or his earning capacity. Because the
parties did not have substantial personal assets, it rea-
sonably is foreseeable that if the plaintiff complied with
the court’s orders, he quickly would become destitute,
to the extent that he was not already destitute.’’
The court in the present matter found that the plain-
tiff’s ‘‘consulting business has been fairly successful’’
and that his book, published in 2008, ‘‘enjoyed some
success and boosted his income in that year and the
next.’’ It did not find that there was any significant
disparity between the plaintiff’s income and the defen-
dant’s income at the time of the dissolution judgment.
It awarded no child support, and it ordered the parties
to share the minor children’s expenses equally and the
household expenses in the 60/40 percent ratio provided
by the modified stipulation. It further ordered that the
parties retain both their respective assets and liabilities,
with the exception of the balances on the defendant’s
American Express and Chase credit cards. The court
ordered that the parties jointly pay these balances with
their respective net proceeds from the sale of the mari-
tal home. Given the court’s findings regarding the plain-
tiff’s career and income, and its orders regarding child
support and the division of assets and liabilities, we
are unable to conclude that the present matter is analo-
gous to Kovalsick and Wiegand, and that the court
abused its discretion in awarding alimony to the defen-
dant at the time of the dissolution judgment and not
awarding the same to the plaintiff. We therefore reject
the plaintiff’s claim.
B
Claim Two: Plaintiff’s October 11, 2012
Motion for Modification
The plaintiff next claims that the court abused its
discretion because it failed to grant him equitable finan-
cial relief in accordance with his requests in his October
11, 2012 motion for modification, even though it deter-
mined that ‘‘both parties have easily met their respective
burdens of showing a substantial change in circum-
stances.’’ We are not persuaded.
‘‘[General Statutes §] 46b-86 governs the modification
or termination of an alimony or support order after the
date of a dissolution judgment. When, as in this case,
the disputed issue is alimony [or child support], the
applicable provision of the statute is § 46b-86 (a),14
which provides that a final order for alimony may be
modified by the trial court upon a showing of a substan-
tial change in the circumstances of either party. . . .
Under that statutory provision, the party seeking the
modification bears the burden of demonstrating that
such a change has occurred. . . .
‘‘Once a trial court determines that there has been a
substantial change in the financial circumstances of
one of the parties, the same criteria that determine an
initial award of alimony and support are relevant to the
question of modification. . . . The power of the trial
court to modify the existing order does not, however,
include the power to retry issues already decided . . .
or to allow the parties to use a motion to modify as an
appeal. . . . Rather, the trial court’s discretion
includes only the power to adapt the order to some
distinct and definite change in the circumstances or
conditions of the parties.’’ (Citations omitted; footnote
altered; internal quotation marks omitted.) Olson v.
Mohammadu, 310 Conn. 665, 671–72, 81 A.3d 215
(2013).
Regarding the motions for modification filed by both
parties, the court found the following substantial
changes in circumstances that are relevant to this claim.
After ‘‘the original trial, [the defendant’s] income . . .
fluctuated from a low of less than $58,000 in 2010 to a
high of over $82,000 in 2011, not including her . . .
unemployment [in 2012].’’ The plaintiff’s ‘‘income . . .
decreased somewhat over the years with the aging of
his book and the resulting lower sales.’’ Specifically,
‘‘[t]he evidence presented [was] that his gross income
for 2011 was under $38,000 and that his income [as
of October, 2012, was] projected to be approximately
$60,000 . . . .’’ The court was not persuaded by the
plaintiff’s argument that the 2011 amendment to Gen-
eral Statutes § 12-407,15 which ‘‘obligates out-of-state
Internet retailers to collect Connecticut sales tax in
instances where they pay commissions to their indepen-
dent contractors or other representatives who reside
and do business in the state . . . had a direct and nega-
tive impact on his income.’’ It found: ‘‘Although there
may have been some immediate reduction, his reported
income does not support this claim in the long term.’’
Furthermore, the plaintiff was ordered to vacate the
marital home in December, 2009, but did not do so until
May, 2010. The elder daughter did not participate in the
shared custody arrangements after May, 2010, although
the younger daughter did. In response to this change
in circumstances, the court ordered the plaintiff to pay
child support of $148 per week for the elder daughter,
to account for the period of time between May, 2010,
and when she reached the age of majority. See footnote
1 of this opinion.
The court additionally found that the plaintiff had
overpaid (1) his alimony obligation, as described in part
I B 1 b i of this opinion; (2) his obligation under the
2008 stipulation, as described in part I B 1 b ii of this
opinion; and (3) his child support obligation in the
amount of $11,967, given the reversal of the original
order and the child support order on remand.
As previously noted in part I B 1 b of this opinion,
the plaintiff requested in relevant part that the court
modify the orders entered at the time of the dissolution
judgment by ordering the defendant to (1) reimburse
all of his alimony and child support payments, retroac-
tive to September 14, 2009;16 (2) pay him alimony, also
retroactive to September 14, 2009; and (3) equally share
the mortgage and utility payments for the marital home
from September 14, 2009, to May 18, 2010, and the
mortgage payments and his rent payments thereafter.
We begin our resolution of the claim by noting that the
modified financial orders include reimbursements from
the defendant to the plaintiff for his overpayment of
child support, alimony, and stipulated shared household
expenses, as well as for one half of a property insurance
reimbursement check received by the defendant. These
orders are contrary to the plaintiff’s position that he
received ‘‘no equitable financial relief . . . .’’
We also are not persuaded by the plaintiff’s position
that we should analogize this matter to those matters
in which our Supreme Court and this court have held
alimony awards to be inequitable and therefore an
abuse of discretion. See, e.g., Greco v. Greco, 275 Conn.
348, 361, 880 A.2d 872 (2005) (reversing, inter alia, ali-
mony award of $710 per week where ‘‘[t]he defendant’s
annual salary of $73,840, reduced by $36,920 per year for
alimony payments, $12,480 per year for life insurance
premiums, $5972.16 per year for health insurance premi-
ums, and $20,000 per year in attorney’s fees, result[ed]
in an annual gross income deficit of $1532.16 per year’’
and also observing that ‘‘[i]f the defendant’s net income,
which he reported to be $53,872 per year, is correct,
the payment of alimony and insurance premiums alone
leave the defendant with an annual net income deficit
of $1500.16’’); Pellow v. Pellow, 113 Conn. App. 122,
124, 128–30, 964 A.2d 1252 (2009) (periodic alimony
award of $4500 per month, which totaled more than
$70,000 per year, was abuse of discretion where it would
consume more than 90 percent of obligor’s gross
income, which trial court found to be $78,796); Cleary
v. Cleary, 103 Conn. App. 798, 803–807, 930 A.2d 811
(2007) (reversing alimony award of $1000 per week
where evidence provided that defendant’s income con-
sisted of $109 per week in disability; $38,098 listed on
joint income tax return as ‘‘other income’’ attributed
to gambling winnings, subject to $28,100 attributed to
receipted gambling losses; pension benefits of $173,000
and retirement benefits of $1700 per week, half of which
court awarded to plaintiff; other assets deemed ‘‘rela-
tively insignificant’’ by court; and potential consulting
work, specifics of which, numerical or otherwise, were
not established with evidence).
We note the plaintiff’s allegations of financial hard-
ship in his arguments and briefs to this court.17 Nonethe-
less, our review of the court’s modified financial orders
‘‘is limited to determining (1) whether the . . . court
correctly applied the law and (2) whether the . . .
court could reasonably have concluded as it did. . . .
This court may not substitute its own opinion for the
factual findings of the trial court.’’ (Internal quotation
marks omitted.) Panganiban v. Panganiban, 54 Conn.
App. 634, 642, 736 A.2d 190, cert. denied, 251 Conn. 920,
742 A.2d 359 (1999). We further note the principle that
‘‘ ‘inability to pay’ does not automatically entitle a party
to a decrease of an alimony order. It must be excusable
and not brought about by the [obligor’s] own fault.’’
Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d
522 (1977); see also Gleason v. Gleason, 16 Conn. App.
134, 137, 546 A.2d 966 (1988); cf. Berry v. Berry, 88
Conn. App. 674, 685, 870 A.2d 1161 (2005) (‘‘loss of
employment does not warrant alimony modification
unless the moving party also proves that her earning
capacity has changed substantially’’). We do not note
this principle for the purpose of addressing the issue
of fault, which is not before us. Instead, we note it for
the purpose of demonstrating that a trial court tasked
with modifying a financial order in a domestic relations
matter must consider any allegation of financial hard-
ship in the context of the facts before it and the criteria
set forth in § 46b-82. See, e.g., O’Donnell v. Bozzuti,
148 Conn. App. 80, 87–88, 84 A.3d 479 (2014).
The court in the present matter modified the financial
orders in response to not only the substantial change
in the plaintiff’s circumstances but also the substantial
change in the defendant’s circumstances, most promi-
nent of which was her loss of employment at the begin-
ning of 2012. Furthermore, during the three years
between the dissolution judgment and the remand hear-
ings, the court found that the plaintiff had earned more
income in 2010 and 2012, while the defendant had
earned more income in 2009 and 2011. See part I B 1
of this opinion. These findings prompted the court to
make the additional finding that ‘‘the earning capacities
of the parties are remarkably close.’’ Given these find-
ings, along with the court’s findings pertaining to both
parties’ overall living situations between 2009 and 2012,
its orders that the defendant reimburse the plaintiff for
overpayments, and our careful review of the record,
we are unable to conclude that the court abused its
discretion by failing to modify the alimony orders in
the manner requested by the plaintiff. We also deter-
mine, for the reasons more fully stated in part III D of
this opinion, that the court did not abuse its discretion
in modifying the financial orders with respect to the
parties’ obligations for shared household expenses
under the 2008 stipulation. We accordingly reject the
plaintiff’s claim.
C
Claim Three: Defendant’s October 11, 2012
Motion for Contempt
Claim Four: Defendant’s May 1, 2013
Motion for Contempt
We next address the plaintiff’s two claims regarding
motions for contempt filed by the defendant and
granted by the court because they are governed by the
same legal principles. The plaintiff claims that the court
improperly granted the defendant’s October 11, 2012
motion for contempt regarding his nonpayment of ali-
mony and child support under the original financial
orders because this court vacated those orders in Lynch
I on April 24, 2012, and the trial court could not have
found simultaneously that he owed alimony and child
support payments to the defendant and that the defen-
dant owed reimbursements to him for alimony and child
support overpayments. The plaintiff also claims that
the court improperly granted the defendant’s May 1,
2013 motion for contempt regarding his nonpayment of
alimony under the financial orders fashioned on remand
because General Statutes § 46b-8 required the court to
hear his concurrently filed motion for modification at
the same time, and again, the court could not have
found that he owed alimony to the defendant where it
previously had found that the defendant owed a reim-
bursement to him for alimony overpayments. We are
not persuaded by either claim.
‘‘A finding of contempt is a question of fact, and our
standard of review is to determine whether the court
abused its discretion in [finding] that the actions or
inactions of the [alleged contemnor] were in contempt
of a court order. . . . [T]he credibility of witnesses,
the findings of fact and the drawing of inferences are
all within the province of the trier of fact. . . . We
review the findings to determine whether they could
legally and reasonably be found, thereby establishing
that the trial court could reasonably have concluded as
it did.’’ (Internal quotation marks omitted.) Tow v. Tow,
142 Conn. App. 45, 48, 64 A.3d 128 (2013).
We begin our analysis by rejecting the plaintiff’s argu-
ment that the court could not reasonably have found
him in contempt of his support obligations under the
original financial orders on October 11, 2012, and the
modified financial orders on May 1, 2013, because it also
had found that the defendant owed a reimbursement
to him for support overpayments. The essence of the
plaintiff’s argument is that he was entitled to offset his
accrued obligations under both series of court orders by
his overpayments. This court has rejected that position,
however, in McRae v. McRae, 139 Conn. App. 75, 86, 54
A.3d 1049 (2012): ‘‘Retroactive modifications of support
orders are ordinarily impermissible. . . . With the
exception of the period following service of a motion
for modification, [n]o order for periodic payment of
permanent alimony or support may be subject to retro-
active modification . . . . The power of the trial court
to modify orders of support and alimony is . . . a crea-
ture of statute. General Statutes § 46b-86. Nothing in
our statute regarding modification of alimony and sup-
port can be construed as authorizing retroactive modifi-
cation. Such a construction has been expressly
disavowed by our Supreme Court. . . . Simply stated,
alimony already accrued may not be modified.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) If the court had denied the motions
for contempt on the ground that the plaintiff could
offset the past due amounts that he owed by the
amounts that he overpaid, it would have subjected the
operative court orders to retroactive modification in
violation of § 46b-86 (a) and McRae.18
1
October 11, 2012 Motion for Contempt
We now address each of the claims in turn. With
respect to the October 11, 2012 motion for contempt—
see part I B 1 b iii of this opinion—the plaintiff does
not challenge the finding that he failed to make alimony
and child support payments under the original financial
orders from the week of January 23, 2012, to the week
of April 16, 2012. His own alimony and child support
payment detail submitted during the remand hearings
documents that he made only three alimony and child
support payments under the original financial orders
in 2012, during the first three weeks of January. Further-
more, his challenge to the finding of wilful contempt
is limited to his argument that he could offset his unpaid
support obligations by his overpayments of past support
obligations, which we reject for the aforementioned
reasons. The plaintiff instead argues that the court
improperly granted the motion because the motion
postdated Lynch I by approximately six months and
therefore sought to enforce vacated orders.
We reject the plaintiff’s position that he had no obliga-
tion from the week of January 23 to the week of April
16, 2012, to pay alimony and child support under court
orders that this court vacated on April 24, 2012, simply
because the defendant sought to hold him in contempt
of those orders after that date. The date when the defen-
dant filed her motion for contempt had no bearing on
his obligations under the original financial orders, for
‘‘ ‘the rule [is] that [a]n order of the court must be
obeyed until it has been modified or successfully chal-
lenged.’ . . . Sablosky v. Sablosky, 258 Conn. 713, 719,
784 A.2d 890 (2001). Indeed, this court and our Supreme
Court previously have determined that a party’s deci-
sion to use self-help instead of judicial resources to
modify an obligation under a judgment in a family mat-
ter could be a basis for granting a motion for contempt
against that party . . . . Id., 720 . . . accord Eldridge
v. Eldridge, 244 Conn. 523, 529–32, 710 A.2d 757 (1998)
(plaintiff stopped paying alimony and child support
after he learned defendant had not told him that she
had been earning more than $25,000 per year for seven
years, because plaintiff believed he had overpaid under
agreement provision with formula by which plaintiff
could reduce such payments when defendant earned
at least $25,000 per year); Behrns v. Behrns, 80 Conn.
App. 286, 288–92, 835 A.2d 68 (2003) (defendant stopped
paying alimony and child support under belief that his
lack of employment allowed him to do so, pursuant to
mathematical formula in agreement that provided for
adjustments of such payments in accordance with
changes in cost of living as measured by consumer price
index or his salary and wages), cert. denied, 267 Conn.
914, 840 A.2d 1173 (2004).’’ (Citation omitted.) McKeon
v. Lennon, 147 Conn. App. 366, 377–78, 83 A.3d 639
(2013).
2
May 1, 2013 Motion for Contempt
We likewise are not persuaded by the plaintiff’s claim
with respect to the May 1, 2013 motion for contempt.
See part I B 2 of this opinion. Again, the plaintiff has not
challenged the finding that he failed to make alimony
payments under the modified financial orders from
December 13, 2012, to May 1, 2013. He has challenged
the court’s finding of wilful contempt during the May
20, 2013 hearing held on the motion, but as we note
in footnote 9 of this opinion, he has not submitted a
transcript or any other documentation of the hearing,
and we therefore are unable to consider this challenge
any further.
The plaintiff largely bases his claim on what he per-
ceives as the court’s noncompliance with General Stat-
utes § 46b-8,19 which provided that ‘‘[w]henever a
motion for modification of an order for support and
alimony is made to the superior court by a moving party
against whom a motion for contempt for noncompli-
ance with such order is pending, the court shall accept
such motion and hear both motions concurrently.’’ The
plaintiff argues that the court abused its discretion
because it did not hear the defendant’s May 1, 2013
motion for contempt and his May 20, 2013 motion for
modification at the same time, even though § 46b-8
required it to do so. The plaintiff’s statutory interpreta-
tion ignores our Supreme Court’s determination in Bry-
ant v. Bryant, 228 Conn. 630, 637 A.2d 1111 (1994), that
the statute ‘‘merely [sets] forth a procedure whereby the
trial court [could] consider a motion for modification
jointly with a motion for contempt when doing so would
[have been] in the interests of the orderly and efficient
resolution of the two motions’’; id., 639; and that it was
‘‘not persuaded that the legislature intended to require
a joint hearing.’’ Id., 640. We accordingly reject the
plaintiff’s claim, which is governed and resolved by this
statutory interpretation.
D
Claim Five: Calculation of Reimbursement
Owed to Plaintiff by Defendant
Claim Six: Calculation of Pendente Lite Arrearage
Owed to Plaintiff by Defendant
We consider these claims together because they both
challenge the court’s factual findings. First, the plaintiff
claims that the court clearly erred in calculating the
amount of the reimbursement owed to him by the defen-
dant, which he argues was too low due to how the
court credited her for her payments of certain types of
expenses without also crediting him for his payments
of these types of expenses. The plaintiff further claims
that the court clearly erred in finding that there was
no pendente lite arrearage owed under the 2008 stipula-
tion for the period of time covered by his January 29,
2009 motion for contempt because the defendant had
conceded the arrearage, and this court in Lynch I had
ordered its calculation and incorporation into the finan-
cial orders on remand. We are not persuaded by
either claim.
We again note that ‘‘[i]t is within the province of the
trial court to find facts and draw proper inferences from
the evidence presented. . . . [W]here the factual basis
of the court’s decision is challenged, we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
these facts are clearly erroneous.’’ (Internal quotation
marks omitted.) Guarascio v. Guarascio, 105 Conn.
App. 418, 421, 937 A.2d 1267 (2008).
1
Calculation of Reimbursement for Payments
of Shared Stipulated Household Expenses
We first resolve the plaintiff’s claim regarding the
calculation of the reimbursement owed to him for his
payment of stipulated shared household expenses. See
part I B 1 b ii of this opinion. The plaintiff does not
claim that the calculation lacked evidentiary support
or that the court misunderstood the evidence on which
it relied in making the calculation. The plaintiff further
does not challenge the ‘‘compromise figure’’ that the
court found to represent the defendant’s payment of
shared expenses, which it subtracted from the amount
that it found to represent his payment of shared
expenses in order to arrive at the reimbursement that
it ordered her to pay to him. As the court noted in its
memorandum of decision, the plaintiff conceded in his
proposed findings of fact and orders that the defendant
‘‘incurred at least $59,144 in what should be shared
expenses . . . .’’ The plaintiff’s claim instead is that
the conceded amount representing the defendant’s pay-
ment of shared stipulated household expenses included
payments for auto insurance premiums, the children’s
expenses, and the children’s unreimbursed medical
expenses, but the amount representing his payment of
stipulated shared household expenses improperly failed
to include his payments for these categories of
expenses, which led to an erroneously low calculation
of the reimbursement owed to him. We are not per-
suaded. The plaintiff’s claim asks us to reexamine and
reweigh the evidence, which this court is prohibited
from doing, for ‘‘[t]he trier of facts [is] free to accept
or reject any portion of the evidence of either party.’’
Kinney v. Kinney, 5 Conn. App. 484, 486, 500 A.2d 569
(1985), cert. denied, 199 Conn. 804, 506 A.2d 146, cert.
denied, 479 U.S. 818, 107 S. Ct. 78, 93 L. Ed. 2d 33 (1986).
There is nothing in the plaintiff’s claim or the record that
would warrant a deviation from this well established
principle in this matter.
Furthermore, in making this claim, the plaintiff
directs our attention to his January 2, 2013 motion to
reargue and reconsider, which contains a detailed alter-
native calculation that was based on evidence that was
before the court during the remand hearings. The court
denied the motion, which the plaintiff now argues was
an abuse of discretion. We disagree. ‘‘The standard of
review for a court’s denial of a motion to reargue is
abuse of discretion. . . . [T]he purpose of a reargu-
ment is . . . to demonstrate to the court that there is
some decision or some principle of law which would
have a controlling effect, and which has been over-
looked, or that there has been a misapprehension of
facts. . . . It also may be used to address . . . claims
of law that the [movant] claimed were not addressed
by the court. . . . [A] motion to reargue [however] is
not to be used as an opportunity to have a second bite
of the apple . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Liberti v. Liberti, 132 Conn. App.
869, 874, 37 A.3d 166 (2012). The plaintiff’s motion did
not ask the court to consider an overlooked legal
authority or claim or to reconsider a misapprehended
fact. It instead asked the court to reevaluate the facts
that had been before it during the remand hearings in
order to recalculate the reimbursement owed to the
plaintiff in a higher amount. This is a clear example of
an attempt to have the proverbial ‘‘ ‘second bite of the
apple’ ’’; id.; and we reject it, as we reject this claim.
2
Calculation of Pendente Lite Arrearage
We similarly are not persuaded by the plaintiff’s claim
that the court clearly erred in failing to find a pendente
lite arrearage owed to him by the defendant for his
payments of stipulated shared household expenses
from December 11, 2008, to September 14, 2009. See
part I B 1 a i of this opinion. This court’s order in Lynch
I regarding the pendente lite arrearage was premised
on the plaintiff’s entitlement to the arrearage, which
this court treated as an undisputed fact due to the
defendant’s concession during the dissolution proceed-
ings. Lynch v. Lynch, supra, 135 Conn. App. 49–51.
During the remand hearings, the parties presented the
court with evidence in which they documented their
respective payments of stipulated shared household
expenses from December 11, 2008, to September 14,
2009. Of particular note are the plaintiff’s multipage
summary of the claimed pendente lite arrearage, the
plaintiff’s schedule of the defendant’s partial reimburse-
ment payments during the pendente lite period, and the
defendant’s list of payments made for stipulated shared
household expenses during the pendente lite period.
We have reviewed this evidence and the parties’ testi-
mony during the remand hearings, and we conclude
that the court did not clearly err in finding that ‘‘[t]he
evidence was not convincing that money was owed in
either direction.’’ We note, as did the plaintiff, the
court’s inconsistent disposition of the issue—first
‘‘declin[ing] to rule further on’’ it and then denying the
underlying motion for contempt—and its reference to
a ‘‘de minimis amount’’ that could be owed to the plain-
tiff if the evidence were construed in a certain way, and
we agree with the plaintiff that they are problematic,
insofar that they were perhaps inartful. Nonetheless,
they do not necessitate a conclusion on our part that
the court clearly erred and violated this court’s order
in Lynch I. Accordingly, we reject the plaintiff’s claim.
E
Claim Seven: Award of Attorney’s Fees
from Plaintiff to Defendant
The plaintiff claims that the court erred because it
awarded $7500 in appellate attorney’s fees to the defen-
dant when refashioning the financial orders on remand,
even though the record does not support the conclusion
that she lacked sufficient liquid assets to pay the fees
or that a failure to award such fees would undermine
the other financial orders. We are not persuaded.
‘‘When making an order for the payment of attorney’s
fees, the court must consider factors that are essentially
the same as those that must be considered when award-
ing alimony. . . . [General Statutes §] 46b-62 governs
the award of attorney’s fees in dissolution proceedings
and provides that the court may order either spouse
. . . to pay the reasonable attorney’s fees of the other
in accordance with their respective financial abilities
and the criteria set forth in [§] 46b-82.’’ (Citation omit-
ted; internal quotation marks omitted.) Pacchiana v.
McAree, 94 Conn. App. 61, 70, 891 A.2d 86, cert. denied,
278 Conn. 922, 901 A.2d 1221 (2006). ‘‘This reasonable-
ness requirement balances the needs of the obligee
spouse with the obligor spouse’s right to be protected
from excessive fee awards.’’ (Internal quotation marks
omitted.) Panganiban v. Panganiban, supra, 54 Conn.
App. 644.
‘‘Courts ordinarily award counsel fees in divorce
cases so that a party . . . may not be deprived of [his
or] her rights because of lack of funds. . . . Where,
because of other orders, both parties are financially
able to pay their own counsel fees they should be per-
mitted to do so. . . . An exception to the rule . . . is
that an award of attorney’s fees is justified even where
both parties are financially able to pay their own fees
if the failure to make an award would undermine its
prior financial orders . . . . Whether to allow counsel
fees [under §§ 46b-62 and 46b-82], and if so in what
amount, calls for the exercise of judicial discretion.
. . . An abuse of discretion in granting counsel fees
will be found only if [an appellate court] determines
that the trial court could not reasonably have concluded
as it did.’’ (Internal quotation marks omitted.) Pacchi-
ana v. McAree, supra, 94 Conn. App. 70–71.
The court’s order that the plaintiff pay appellate attor-
ney’s fees to the defendant was one of the financial
orders that the court refashioned on remand in accor-
dance with the facts as they were at the time of the
dissolution judgment. Our determination that the ali-
mony award was not an abuse of discretion therefore
prompts us to reach the same conclusion regarding the
appellate attorney’s fees award. Furthermore, we also
are not persuaded by the plaintiff’s argument that the
award was improper for the additional reason that the
defendant did not submit any evidence or proposed
finding of fact or order in support of the award. Among
the defendant’s proposed orders was that the plaintiff
‘‘be responsible for [her] legal fees . . . in the total
amount of $26,000 pursuant to the [a]ffidavit filed by
counsel,’’ which she also filed with the court. For the
foregoing reasons, we deem the award of appellate
attorney’s fees to the defendant to have been a proper
exercise of the court’s discretion and supported by the
evidence, and we reject the plaintiff’s claim.
F
Claim Eight: Judicial Bias
The plaintiff labels this claim as one that ‘‘[t]he . . .
court erred in its overall orders which are inequitable,
unjust, discriminatory, and punitive toward’’ him, but
a reasonable interpretation of his briefs leads to the
conclusion that the plaintiff’s claim is one of judicial
bias. Furthermore, both parties characterized this claim
in this fashion during oral argument before this court.
We note, as the defendant did during oral argument
before this court, that this appeal is the first time that
the plaintiff has made this claim. The plaintiff has not
challenged this assertion, and our review of the record
demonstrates that he did not ‘‘preserve his claim of
judicial bias in accordance with Practice Book § 1-23’’
by moving to disqualify Judge Adelman at any time
during the trial court proceedings. Wiegand v. Wiegand,
supra, 129 Conn. App. 533. ‘‘Nevertheless, because
claims of judicial bias strike at the very core of judicial
integrity and implicate the basic concepts of a fair trial,
we will review the plaintiff’s claim.’’ Id.
‘‘No more elementary statement concerning the judi-
ciary can be made than that the conduct of the trial
judge must be characterized by the highest degree of
impartiality. If he departs from this standard, he casts
serious reflection upon the system of which he is a
part. . . . In whatever he does, however, the trial judge
should be cautious and circumspect in his language and
conduct. . . . A judge should be scrupulous to refrain
from hearing matters which he feels he cannot approach
in the utmost spirit of fairness and to avoid the appear-
ance of prejudice as regards either the parties or the
issues before him. . . . A judge, trying the cause with-
out a jury, should be careful to refrain from any state-
ment or attitude which would tend to deny [a party] a
fair trial. . . . It is his responsibility to have the trial
conducted in a manner which approaches an atmo-
sphere of perfect impartiality which is so much to be
desired in a judicial proceeding.’’ (Internal quotation
marks omitted.) Gleason v. Smolinski, 149 Conn. App.
283, 296, 88 A.3d 589, cert. granted on other grounds,
312 Conn. 920, 94 A.3d 1201 (2014).
The plaintiff makes the broad, sweeping argument
that ‘‘the record demonstrates bias’’ and that ‘‘[w]hile
unknown if [the] bias is tied to [his] gender (awards
traditionally paid by husband to wife), his previous
grievance filings, his history as a pro se litigant, his
pending malpractice counterclaim against former trial
counsel, or some combination thereof, it is not reason-
able to summarily dismiss these claims as mere coinci-
dence.’’ He supports this assertion of Judge Adelman’s
gender bias and bias against litigants for their past litiga-
tion conduct and self-represented status with equally
broad, sweeping references to what he characterizes
as the inequitable nature of the financial orders and to
certain rulings, specifically, credibility determinations,
that were favorable to the defendant. We already have
rejected the plaintiff’s characterization of the financial
orders in parts III A and B of this opinion, in which we
concluded that the court did not abuse its discretion
in declining to award alimony to the plaintiff and reduce
his alimony obligations to the defendant.
With respect to the plaintiff’s reliance on credibility
determinations and other court rulings that were favor-
able to the defendant, we note that ‘‘[a]dverse rulings
themselves do not constitute evidence of bias. . . .
Obviously, if a ruling against a party could be used as
an indicia of bias, at least half of the time, every court
would be guilty of being biased against one of two
parties. Moreover, the fact that a trial court rules
adversely to a litigant, even if some of these rulings
were determined on appeal to have been erroneous,
[still] does not demonstrate personal bias.’’ (Internal
quotation marks omitted.) Burns v. Quinnipiac Uni-
versity, 120 Conn. App. 311, 317, 991 A.2d 666, cert.
denied, 297 Conn. 906, 995 A.2d 634 (2010). As did this
court in Burns, we conclude that ‘‘[t]he fact that the
plaintiff strongly disagrees with the substance of the
court’s rulings does not make those rulings evidence
of bias. In the present case, the plaintiff’s argument of
bias is completely unsubstantiated by the trial record.’’20
Id. We thus reject the plaintiff’s claim.
‘‘Because the plaintiff’s judicial misconduct claims
are unsupported, we take the time to reiterate that [a]ny
claim of judicial bias is taken as an attack on the fairness
of the judicial process. . . . [We] remind [litigants]
once again that claims of judicial bias are serious mat-
ters that should not be raised for the mere purpose of
seeking a reversal of a judgment.’’ (Internal quotation
marks omitted.) Bennett v. Chenault, 147 Conn. App.
198, 205, 81 A.3d 1184 (2013).
G
Claim Nine: Whether Court Erred in Failing to Hear
Certain of Plaintiff’s Motions and Denying
Others without Consideration of
Plaintiff’s Due Process Rights
Finally, the plaintiff claims that the court’s failure to
hold hearings and issue decisions for each of the
motions discussed in part I B 2 of this opinion requires
reversal. We are not persuaded.
We begin by noting that part of the plaintiff’s claim
is that the court declined to hear and decide the motions
at issue without consideration of his due process rights.
The plaintiff’s due process argument consists of a hand-
ful of passing references to due process in his initial
brief only: the caption of the claim; references to the
fifth and fourteenth amendments to the United States
constitution in the table of authorities cited; and a one
sentence contention without analysis or supporting
citations that the court’s denial of his request to call
the defendant as a witness during a motion hearing was
‘‘a violation of [his] procedural due process rights.’’
‘‘[A]ssignments of error which are merely mentioned
but not briefed beyond a statement of the claim will
be deemed abandoned and will not be reviewed by this
court.’’ (Internal quotation marks omitted.) Wendt v.
Wendt, 59 Conn. App. 656, 690, 757 A.2d 1225, cert.
denied, 255 Conn. 918, 763 A.2d 1044 (2000). We accord-
ingly will not address this part of the plaintiff’s claim
because he has abandoned it through inadequate
briefing.
In making this claim, the plaintiff cites repeatedly to
Ahneman v. Ahneman, 243 Conn. 471, 482, 706 A.2d
960 (1997), and Ramin v. Ramin, 281 Conn. 324, 330,
915 A.2d 790 (2007), for the proposition that a trial
court abuses its discretion when it refuses to consider
a party’s motions in a dissolution matter. Those cases,
however, are distinguishable. In both of those cases,
the refusal by the trial court to consider the motions
at issue was a wholesale refusal to address the motions
in any fashion. In Ahneman v. Ahneman, supra, 475–76,
the court refused on the record to consider any motions
concerning financial issues filed by the defendant after
her appeal of its decision to grant a motion for modifica-
tion filed by the plaintiff. Similarly, in Ramin v. Ramin,
supra, 332–36, the court held a hearing for a motion for
contempt filed by the plaintiff, but it marked the motion
as ‘‘ ‘off’ ’’; id., 336; after expressing its frustration over
the duration of the matter, insisting that the matter
proceed to trial as scheduled, and consequently refusing
on the record to consider the motion further during
the hearing.
Our recitation of the procedural history pertaining
to the motions at issue in part I B 2 of this opinion
demonstrates that the court not only considered but
also decided all of these motions or the issues that they
raised. The plaintiff nonetheless appears to argue that
the court refused to consider these motions in violation
of Ahneman and Ramin because it did not hold discrete
hearings and issue discrete decisions for each of them
in sufficiently expeditious fashion. We decline to adopt
the plaintiff’s position and label the court’s actions with
respect to the motions, each of which was heard and
decided fully, as an abuse of its broad discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The elder daughter became eighteen years old in October, 2011, and the
younger daughter became eighteen years old in July, 2014. We need not
discuss the trial court orders pertaining to child support or custody because
they have not been challenged on appeal in either Lynch I or the present
appeal, except to the limited extent described in parts III B and C of this
opinion.
2
The docket lists the date for the judgment as September 15, 2009, but
we will use the date of September 14, 2009, instead, given the use of that
date on the judgment itself, by this court previously, and by both parties in
the present appeal.
3
‘‘The defendant’s motion referenced a paragraph of the stipulation . . .
providing that the parties pay equally the following: ‘[M]ortgage including
real estate taxes and homeowner’s insurance, all children’s expenses, all
utilities, life, health and auto insurance premiums and groceries for the
family. Each party shall pay their own auto expenses except for auto insur-
ance. Parties must agree on children’s expenses. No liquor or wine is to be
included in the groceries.’ ’’ Lynch v. Lynch, supra, 135 Conn. App. 43 n.3.
4
We were not provided with information concerning the current status
of the marital home, e.g., whether it is still owned by the parties or whether
it has been sold.
5
We concluded that we ‘‘need not review the plaintiff’s claims challenging
the other financial orders rendered in the dissolution judgment based on
our partial reversal of that judgment and our remand to the trial court for
new financial orders.’’ (Internal quotation marks omitted.) Lynch v. Lynch,
supra, 135 Conn. App. 54 n.12.
6
In outlining the facts and procedural history, the plaintiff states in a
footnote: ‘‘The retroactive pendente lite modification should now be vacated
as it necessarily impacts the issue of an outstanding pendente lite arrearage
which was specifically addressed on remand orders by the Appellate Court
in 2012.’’ We previously have held that an ‘‘assertion, raised in a footnote
in [an] appellate brief without substantive discussion or citation of authori-
ties,’’ is inadequately briefed for the purpose of appellate review. Fort Trum-
bull Conservancy, LLC v. New London, 135 Conn. App. 167, 175, 43 A.3d
679, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012). The plaintiff’s passing
references to the motion in other parts of his initial brief also are insufficient
to raise the issue for the purpose of appellate review, given that they, too,
are unaccompanied by analysis or citations to relevant authority.
7
Even though the court referred only to the parties’ respective gross
incomes throughout its memorandum of decision, it clarified in its January
3, 2013 order that it ‘‘used net income for all calculations as required.’’ Cf.
Cleary v. Cleary, 103 Conn. App. 798, 801, 930 A.2d 811 (2007) (trial court
improperly entered alimony orders on basis of gross income rather than
net income).
8
See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29
U.S.C. §§ 1161 through 1168.
9
The court noted that these overpayments covered the entirety of the
defendant’s stipulated share of the mortgage and utility expenses at issue.
10
In his brief, the plaintiff refers to a May 20, 2013 hearing held on the
motion for contempt and the motion to modify and cites to the transcript
thereof. Neither the transcript nor any other evidence of this hearing is part
of the record before us, however, and we thus decline to consider the
plaintiff’s references to this hearing because ‘‘[a] reviewing court cannot go
beyond the proper record before it in the determination of issues presented
on appeal.’’ Burns v. Quinnipiac University, 120 Conn. App. 311, 318 n.6,
991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).
11
The parties established during oral argument to this court that the
trial court, Pinkus, J., decided the plaintiff’s motion for modification in
January, 2014.
12
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 addition to or in lieu of an award pursuant to
section 46b-81. In determining whether alimony shall be awarded, and the
duration and amount of the award, the court shall hear the witnesses, if
any, of each party, except as provided in subsection (a) of section 46b-51,
shall consider the length of the marriage, the causes for the annulment,
dissolution of the marriage or legal separation, the age, health, station,
occupation, amount and sources of income, vocational skills, employability,
estate and needs of each of the parties and the award, if any, which the
court may make pursuant to section 46b-81 . . . .’’
13
‘‘Our Supreme Court has held that if alimony is not awarded in a final
dissolution decree, it cannot be awarded in the future based on changed
circumstances. . . . Alimony is solely a creature of statute, and a court has
no authority to award it other than at the time of entering a dissolution
decree.’’ (Citations omitted; emphasis in original; internal quotation marks
omitted.) Fitzsimons v. Fitzsimons, 116 Conn. App. 449, 457, 975 A.2d
729 (2009).
14
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 . . . .
If a court, after hearing, finds that a substantial change in circumstances
of either party has occurred, the court shall determine what modification
of alimony, if any, is appropriate, considering the criteria set forth in section
46b-82.’’
15
See General Statutes § 12-407 (a) (12) (L) and (15) (A) (x).
16
Even though the plaintiff also requested that the defendant reimburse
all of his child support payments, we do not discuss this part of the plaintiff’s
requested relief in resolving this claim because the plaintiff does not address
it specifically in challenging the modified financial orders on appeal.
17
While we note the plaintiff’s allegations of expressed financial hardship,
we are not persuaded by the plaintiff’s calculations of his weekly obligations
under the modified financial orders as a means of demonstrating such
hardship under Greco and its progeny. The plaintiff asserts that ‘‘the refash-
ioned orders are overwhelmingly burdensome and represent an abuse of
discretion; they are inequitable, unjust, discriminatory, and punitive against
the [plaintiff]. Immediately obvious is [the plaintiff]’s obligation to pay his
rent ($453), half the mortgage ($594 / 2 = $297), and alimony of $100 weekly,
to say nothing of his other very basic living expenses. This $850 weekly
total represents 102 [percent] of [the plaintiff’s] net weekly income . . . .’’
(Emphasis omitted.)
The plaintiff misinterprets the financial orders, however, because the only
amounts from them that are relevant to his argument are the order of $100
per week in alimony and $148 per week in child support, not relied on by
the plaintiff, however, to be paid for the elder daughter from when the
plaintiff vacated the marital home in May, 2010, to when the elder daughter
reached the age of majority in October, 2011. See footnote 1 of this opinion.
The order with respect to payment by each of the parties of one-half of
the mortgage obligation relating to the marital premises was in effect only
until the sale and transfer of the marital home, a matter at least in part
under the control of the parties. We already have noted that we have not
received any information regarding the present status of the marital home.
See footnote 4 of this opinion. Therefore, if we analyze the impact of only
the alimony and child support orders—$248 per week—on the claimed
net weekly income of the plaintiff—$833—the amount of those payments
consumed approximately 30 percent of the plaintiff’s net weekly income.
For this reason, we conclude that this matter is readily distinguishable from
Greco and its progeny.
The modified financial orders, furthermore, appropriately do not address
the plaintiff’s personal rent obligations, despite the plaintiff’s argument that
‘‘since [the parties] were sharing expenses under the orders of the original
decree pending the sale of the house, once he vacated the home his new
rental and utilities costs should be shared along with the expenses of the
marital home.’’ We conclude that the court did not abuse its discretion in
omitting the plaintiff’s rent obligations from its calculation of the modified
financial orders, especially given that the plaintiff has not cited any authority
for his argument. In Greco and its progeny, this court and our Supreme
Court determined that financial orders were an abuse of discretion after
comparing the payments required under them to the obligor’s net income.
In none of these cases were the obligor’s claimed living expenses a factor
in the court’s calculation.
18
For this reason, this matter is distinguishable from Tow v. Tow, supra,
142 Conn. App. 47–48, on which the plaintiff relies in making his claim. This
court held in Tow that the trial court properly denied the plaintiff wife’s
motion for contempt alleging nonpayment of alimony and child support
where, during the period of time covered by the motion, the plaintiff had
access to a joint checking account into which the defendant husband depos-
ited an amount that was ‘‘well in excess’’ of the defendant’s court-ordered
support obligations. Id., 47. In the present matter, there is no temporal
overlap between the plaintiff’s overpayments and his noncompliance with
his court-ordered support obligations.
19
General Statutes § 46b-8 was repealed by No. 13-213, § 6, of the 2013
Public Acts, effective October 1, 2013.
20
We observe that the record in fact contains multiple statements by
Judge Adelman acknowledging the plaintiff’s credibility, his respectfulness
to the court, and the merit of the plaintiff’s claims.