Berman v. Berman

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EDWARD BERMAN v. ELLEN BERMAN
(AC 42554)
Elgo, Alexander and DiPentima, Js.
Syllabus
The plaintiff, whose marriage to the defendant had previously been dis-
solved, appealed from the decision of the trial court denying in part his
postjudgment motion for modification of alimony. The plaintiff sought
a modification of his obligation to pay alimony, to provide for the defen-
dant’s health insurance and to maintain life insurance, alleging that his
income had decreased substantially since the date of dissolution. At the
hearing on the motion, the self-represented defendant made statements
regarding certain equity that she had not taken in the plaintiff’s business
during her cross-examination of the plaintiff and during her closing
argument, but did not question the plaintiff regarding the equity that
she allegedly gave up or any claims to real estate or business assets
that she may have abandoned in exchange for alimony. Held:
1. The trial court improperly found that the defendant had relinquished
claims she might have had to certain marital assets in exchange for
lifetime alimony, as that finding was not supported by the record: there
was no testimony or evidence proffered at the hearing on the motion
for modification to demonstrate that the parties had made such an
exchange, nor was there any language in the parties’ agreement that
supported the court’s finding, and, although the defendant made state-
ments at the hearing while questioning the plaintiff and during her
closing argument that she gave up equity for alimony, her statements
did not constitute evidence, and the court appropriately cautioned her
to that effect, and the defendant did not offer testimony from any other
witness, including herself, in support of her claim that she exchanged
equity for lifetime alimony.
2. The trial court abused its discretion in denying the plaintiff’s motion for
modification of alimony on the basis of its erroneous finding that the
defendant had given up claims during the dissolution proceedings;
although the trial court implicitly found a substantial change in the
plaintiff’s financial circumstances since the date of the dissolution, there
was nothing in the separation agreement, which terms were negotiated
with the assistance of counsel, to indicate that the defendant gave up
equity or assets in exchange for lifetime alimony, nor was there any
evidence proffered at the hearing on the motion demonstrating that the
parties had made such an exchange; accordingly, there was a lack of
an evidentiary basis in the record for the court’s finding of an exchange
of assets or equity for lifetime alimony, on which the court’s ultimate
decision denying the motion in part was based.
Argued December 7, 2020—officially released March 16, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Danbury, where the court, Winslow, J., rendered
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Eschuk, J., denied in
part the plaintiff’s motion for modification of alimony,
from which the plaintiff appealed to this court.
Reversed; further proceedings.
Christopher P. Norris, for the appellant (plaintiff).
Ellen Berman, self-represented, the appellee (defen-
dant).
Opinion
DiPENTIMA, J. The plaintiff, Edward Berman,
appeals from the judgment of the trial court denying
in part his motion to modify his obligation to pay ali-
mony and to provide health and life insurance to the
defendant, Ellen Berman.1 On appeal, the plaintiff
claims that the court erred in (1) finding that the defen-
dant had ceded claims she might have had at the time
of the dissolution of the parties’ marriage in exchange
for lifetime alimony, (2) denying his motion for modifi-
cation of alimony on the basis of that finding and its
finding that the defendant had given up claims during
the dissolution proceedings as part of the mosaic, and
(3) denying his motion for modification of alimony after
finding that his income had decreased by approximately
32 percent since the date of the dissolution. We reverse
the judgment of the trial court.
The following factual and procedural history is rele-
vant to our resolution of the claims on appeal. The
plaintiff and the defendant were married in Norwalk
on October 24, 1976. Following a breakdown in the
parties’ marriage, the trial court, Winslow, J., rendered
a judgment dissolving their marriage on January 16,
2013. The court incorporated into the dissolution judg-
ment a separation agreement (agreement) that had been
executed and signed by the parties, both of whom had
legal representation in negotiating the agreement. The
agreement provided that, upon the sale of the marital
residence in Ridgefield, the plaintiff was required to
pay the defendant $6500 per month as alimony. Further,
upon the sale of a condominium located in Vermont
that was owned by the parties, the plaintiff’s alimony
obligation was to increase to $8000 per month and con-
tinue until either the death of the plaintiff, the death
of the defendant or the defendant’s remarriage. The
agreement also required the plaintiff to be responsible
for the defendant’s medical and dental insurance, and
to maintain term life insurance in the amount of $1
million with the defendant listed as the beneficiary.
Pursuant to the agreement, the plaintiff also was
responsible for a number of the parties’ debts, including
payment of an outstanding line of credit; payment of the
mortgages on the marital residence, along with taxes,
insurance, utilities, repairs and maintenance expenses
until the property is sold; payment of any deficiency
related to the sale of the marital residence and the
sale of the Vermont condominium; and payment of any
outstanding loans related to his medical practice.
On August 29, 2018, the plaintiff filed a motion for
modification of his alimony obligation as set forth in
the agreement, as well as his obligation to pay for the
defendant’s health insurance and to maintain life insur-
ance. In his motion, the plaintiff alleged that his income
had decreased substantially since the date of the disso-
lution. On December 21, 2018, the trial court, Eschuk,
J., rendered judgment denying in part the plaintiff’s
motion for modification. See footnote 1 of this opinion.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
We begin by setting forth our standard of review. We
review the court’s judgment denying the motion for
modification of alimony ‘‘under an abuse of discretion
standard. 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 presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . [T]he trial
court’s findings [of fact] are binding upon 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 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.)
Callahan v. Callahan, 192 Conn. App. 634, 644–45, 218
A.3d 655, cert. denied, 333 Conn. 939, 218 A.3d 1050(2019).
‘‘General Statutes § 46b-86 governs the modification
of an alimony or child support order after the date of
a dissolution judgment. Section 46b-86 (a) provides that
a final order for alimony or child support may be modi-
fied by the trial court upon a showing of a substantial
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. . . . To obtain a modification, the mov-
ing party must demonstrate 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 modification of the existing
order. . . .
‘‘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. . . . Thus, [w]hen presented
with a motion for modification, a court must first deter-
mine 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-84]
criteria, make an order for modification. . . . A finding
of a substantial change in circumstances is subject to
the clearly erroneous standard of review.’’ (Citation
omitted; internal quotation marks omitted.) Flood v.
Flood, 199 Conn. App. 67, 77–78, 234 A.3d 1076, cert.
denied, 335 Conn. 960, 239 A.3d 317 (2020).
Moreover, ‘‘[i]t is well established that a separation
agreement that has been incorporated into a dissolution
decree and its resulting judgment must be regarded as
a contract and construed in accordance with the general
principles governing contracts. . . . When construing
a contract, we seek to determine the intent of the parties
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected with the transaction. . . . [T]he intent of the
parties is to be ascertained by a fair and reasonable
construction of the written words and . . . the lan-
guage used must be accorded its common, natural, and
ordinary meaning and usage where it can be sensibly
applied to the subject matter of the contract. . . .
When only one interpretation of a contract is possible,
the court need not look outside the four corners of the
contract.’’ (Internal quotation marks omitted.) Gior-
dano v. Giordano, 200 Conn. App. 130, 136, 238 A.3d
113, cert. denied, 335 Conn. 970, 240 A.3d 286 (2020);
see also Winthrop v. Winthrop, 189 Conn. App. 576,
581–82, 207 A.3d 1109 (2019).
I
The plaintiff first claims that the trial court improp-
erly found that the defendant had relinquished claims
she might have had to certain marital assets in exchange
for lifetime alimony. Specifically, the plaintiff claims
that there was no testimony or evidence in the record
to support the court’s finding that such an exchange of
assets for alimony had occurred. We agree.
The following additional facts are necessary for our
resolution of this claim. A hearing on the plaintiff’s
motion for modification was held on November 21,
2018, at which both parties testified. The plaintiff was
represented by counsel; the defendant was, as she is
before us, a self-represented party. The plaintiff testified
that he is a medical doctor and is sixty-eight years old.
He offered as an exhibit his financial affidavit from the
date of the dissolution of the marriage, which showed
his gross and net weekly income at that time. He also
offered as an exhibit his 2012 tax return, which showed
an income of $466,000 the year before his divorce. He
testified that in 2012, following an inquiry by a Medicare
contractor, he entered into an agreement that resulted
in a payment order, which required him to pay $215,000
related to the Medicare investigation. The plaintiff fur-
ther testified that in June, 2015, major changes occurred
in his medical practice. Specifically, he stated that as
a result of a newspaper article about the Medicare set-
tlement and other factors, he lost income on a variety
of fronts. To support that claim, he offered as an exhibit
his 2017 tax return, which showed an income of
$151,093. He testified that he has $336,000 in liabilities
and that the Vermont property is in foreclosure. When
asked if he has a negative net worth on his financial
affidavit, he responded, ‘‘Yes I do. I guess I’m worth-
less.’’ Because his ‘‘financial situation was extremely
different when [the] negotiations [regarding] the
divorce were agreed upon,’’ he testified that he could
no longer afford his $6500 monthly alimony obligation,
let alone the increase to $8000 in alimony as set forth
in the agreement. Thus, he requested that his alimony
obligation be terminated.
During cross-examination of the plaintiff, the self-
represented defendant asked the plaintiff if it is true
that the defendant ‘‘took much less alimony than [she]
could have gotten and took no equity,’’ to which the
plaintiff responded that ‘‘[t]here was no equity.’’ There-
after, the defendant stated that there was ‘‘about
$300,000 equity in the office at the time of [the] divorce,’’
and that she ‘‘did not take that equity.’’ The court
explained to the defendant that she needed to be asking
the plaintiff questions, rather than making statements,
and that she could make a statement later on, but that
her statement could not add evidence. After the court
finished its explanation, the defendant again attempted
to ask a question about equity, to which the plaintiff
again replied that his medical practice did not have
$300,000 of equity in the property.
During the remainder of her cross-examination of
the plaintiff, the defendant did not ask any questions
regarding the equity that she allegedly gave up or any
claims to real estate or business assets that she may
have abandoned in exchange for alimony. The defen-
dant subsequently was called to the witness stand by
the plaintiff’s attorney and questioned concerning the
requirement in the dissolution judgment that she apply
for Social Security disability benefits within one day of
the date of the judgment. After the defendant’s brief
testimony answering those questions, the plaintiff’s
attorney informed the court that he had no other wit-
nesses to call, and the court stated to the defendant
that she could now call witnesses. In response, the
defendant called the plaintiff to the witness stand and
questioned him further regarding the cost of his wed-
ding and his ability to afford vacations. When the ques-
tioning of the plaintiff was completed, the court asked
the defendant if there were any other witnesses that
she wanted to call, including herself, to which she
responded, ‘‘No.’’ During her closing argument, the
defendant stated twice that she took no equity and
significantly less alimony because the plaintiff was sup-
posed to assume all of the debt. She further stated that
she did ‘‘not recall any discussions about [the plaintiff]
being investigated by Medicare during the collaborative
divorce,’’ and, that if she knew, she ‘‘would have taken
the office equity but was advised by [her] attorney that
[she had] good alimony and not to worry.’’In its memo-
randum of decision denying the plaintiff’s motion for
modification of alimony, the court stated: ‘‘The agree-
ment entered into by the parties at the time of the
divorce is a detailed and complicated one. It was
entered into with the assistance of counsel on both
sides. Courts have often described the careful redistri-
bution of marital property at time of dissolution as a
‘mosaic’ in the sense that each part of the disposition
fits into other parts making a whole ‘picture.’ The court
finds that the agreement in this case truly reflects that
concept. It would be difficult, if not impossible, to
remove one part without damaging the remainder. The
defendant is in poor health, a fact clearly contemplated
at the time of the agreement, and has to have medical
coverage: a benefit for which she waived other claims.
She also exchanged claims she might have had to real
estate and business assets for the supposed security
of lifetime support. . . . [The plaintiff’s] agreement to
pay alimony to the defendant was clearly to support
her ongoing needs, rather than being rehabilitative. She
has no other source of income than her alimony. It is
highly improbable that she could obtain employment.
Even without her health issues her skills as a nurse are
outdated and would be difficult to reacquire. Essen-
tially, the defendant appears to have exchanged her
claims to various assets for lifetime alimony and pay-
ment of her medical expenses.’’ (Emphasis added.)
On the basis of our careful review of the record,
including the transcript of the hearing on the plaintiff’s
motion for modification, we conclude that the court’s
finding that the defendant gave up her claims to certain
marital assets in exchange for lifetime alimony is not
supported by the record. There was simply no evidence
proffered at the hearing on the motion for modification
to demonstrate that the parties had made such an
exchange, nor was there any language in the parties’
agreement that supported the court’s finding. Although
the defendant made statements at the hearing while
questioning the plaintiff and during her closing argu-
ment that she gave up equity for alimony, her statements
did not constitute evidence, and the court appropriately
cautioned her to that effect. See Hall v. Hall, 182 Conn.
App. 736, 756, 191 A.3d 182 (2018) (‘‘[A]rgument is not
evidence. As judges routinely admonish juries: Argu-
ment is argument, it is not evidence. . . . So, too, argu-
ments of a pro se litigant are not proof. . . . In re
Justin F., 116 Conn. App. 83, 96, 976 A.2d 707, appeal
dismissed, 292 Conn. 913, 973 A.2d 660, cert. denied,
293 Conn. 914, 978 A.2d 1109 (2009), cert. denied sub
nom. Albright-Lazzari v. Connecticut, 559 U.S. 912,
130 S. Ct. 1298, 175 L. Ed. 2d 1087 (2010); see also Baker
v. Baker, [95 Conn. App. 826, 832–33, 898 A.2d 253(2006)] (representations of counsel are not evidence).’’
(Internal quotation marks omitted.)), aff’d, 335 Conn.
377, 238 A.3d 687 (2020). The defendant did not offer
testimony from any other witness, including herself, in
support of her claim that she exchanged equity for
lifetime alimony. The court’s factual finding of such an
exchange, therefore, is clearly erroneous.
II
The plaintiff’s second claim is that the trial court
improperly denied his motion for modification on the
basis of its clearly erroneous finding that the defendant
had given up claims during the dissolution proceedings.
We agree.
As we stated previously, the party moving for a modi-
fication of alimony must demonstrate the existence of
a substantial change in circumstances since the last
court order, which, in the present case, is the dissolu-
tion judgment. See Brown v. Brown, 199 Conn. App.
134, 157, 235 A.3d 555 (2020); Flood v. Flood, supra, 199
Conn. App. 77–78. ‘‘[W]hen 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. . . . Sec-
ond, if the court finds a substantial change in circum-
stances, it may properly consider the motion and . . .
make an order for modification.’’ (Emphasis omitted;
internal quotation marks omitted.) Brown v. Brown,
supra, 157; see also Callahan v. Callahan, supra, 192
Conn. App. 645 (establishment of changed circum-
stances is condition precedent to party’s relief).
The trial court made no express finding of a substan-
tial change in circumstances. This court has determined
previously, however, ‘‘that an implicit finding of a sub-
stantial change of circumstances by the trial court will
satisfy the threshold predicate for modification of a
support order.’’ Schade v. Schade, 110 Conn. App. 57,
63, 954 A.2d 846, cert. denied, 289 Conn. 945, 959 A.2d
1009 (2008). In Schade, this court reasoned that ‘‘[a]
fair reading of the trial court’s memorandum of decision
and its articulation leads us to the more logical and
compelling conclusion that the trial court did find a
substantial change of circumstances and then con-
cluded that the alimony order should remain the same.’’
Id., 64.
We conclude that the present case presents a similar
situation of an implicit finding of a substantial change
in circumstances. After noting in its memorandum of
decision that the plaintiff’s 2012 tax return showed an
annual gross income of $466,423, while his 2017 tax
return showed a decline in his annual gross income to
$151,093, the court found that ‘‘[t]he plaintiff’s financial
circumstances have undoubtedly deteriorated since the
date of the dissolution.’’ The court further noted the
$215,000 penalty stemming from the Medicare investiga-
tion that the plaintiff was required to pay following the
dissolution, along with the loss of business he sustained
as a result of that investigation. After stating in its mem-
orandum of decision that ‘‘[t]he court may modify an
order for the payment of alimony pursuant to . . .
§ 46b-86 upon a showing of a substantial change in the
circumstances of either party, but is not required to do
so,’’ the court found that ‘‘while [the plaintiff’s] financial
state has worsened since the dissolution, the court finds
that he still has resources available to him.’’ (Emphasis
added.) A fair reading of the court’s memorandum of
decision leads us to conclude that the court implicitly
found a substantial change in the plaintiff’s financial
circumstances since the date of the dissolution but
determined that the alimony order should not be modi-
fied.
In declining to modify the plaintiff’s alimony obliga-
tion, the court noted that the ‘‘agreement entered into
by the parties at the time of the divorce is a detailed
and complicated one,’’ and that ‘‘[i]t would be difficult,
if not impossible, to remove one part without damaging
the remainder.’’ The court further explained that the
defendant ‘‘has to have medical coverage: a benefit for
which she waived other claims. She also exchanged
claims she might have had to real estate and business
assets for the supposed security of lifetime support.
. . . Essentially, the defendant appears to have
exchanged her claims to various assets for lifetime ali-
mony and payment of her medical expenses.’’ In part
I of this opinion, however, we concluded that the court’s
finding of such an exchange of assets for alimony was
clearly erroneous. Because the court’s denial of the
plaintiff’s motion for modification was based, at least
in part,2 on its clearly erroneous finding that an
exchange of equity for lifetime alimony had taken place,
we are thus ‘‘left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Thomasi v. Thomasi, 181 Conn. App.
822, 847, 188 A.3d 743 (2018); see also LeSueur v. LeS-
ueur, 186 Conn. App. 431, 464, 199 A.3d 1082 (2018)
(‘‘[a]ppellate courts look at the record, and determine
whether the [trial] court either incorrectly applied the
law or could not reasonably conclude as it did’’ (internal
quotation marks omitted)).
We are mindful that courts often describe ‘‘financial
orders appurtenant to dissolution proceedings as
entirely interwoven and as a carefully crafted mosaic,
each element of which may be dependent on the other’’;
(internal quotation marks omitted) Steller v. Steller, 181
Conn. App. 581, 589, 187 A.3d 1184 (2018); and that
the parties, both represented by counsel at the time,
negotiated the terms that appeared in the agreement
that was incorporated into the dissolution judgment.
There is nothing in that agreement, however, indicating
that the defendant gave up equity or assets in exchange
for lifetime alimony,3 nor was any evidence proffered
at the hearing on the motion for modification demon-
strating that the parties had made such an exchange,
and it would be improper for this court to speculate as
to what might have been exchanged for the terms
agreed upon in the parties’ agreement.
‘‘Although we allow pro se litigants some latitude,
the right of self-representation provides no attendant
license not to comply with relevant rules of procedural
and substantive law. . . . Self-represented parties are
not afforded a lesser standard of compliance, and
[a]lthough we are solicitous of the rights of pro se
litigants . . . [s]uch a litigant is bound by the same
rules . . . and procedure as those qualified to practice
law.’’ (Internal quotation marks omitted.) Rutka v. Mer-
iden, 145 Conn. App. 202, 218, 75 A.3d 722 (2013). Conse-
quently, ‘‘[w]hen a defendant elects to proceed without
the benefit of counsel, [she] takes the risk that because
of [her] inexperience and lack of knowledge, [she] will
suffer disadvantages to which, with proper representa-
tion, [she] would not be subject.’’ State v. Lo Sacco, 12
Conn. App. 481, 496, 531 A.2d 184, cert. denied, 205
Conn. 814, 533 A.2d 568 (1987). This case is illustrative
of the dangers inherent in self-representation. The
defendant’s statements and closing argument at the
hearing did not constitute evidence. See Lavy v. Lavy,
190 Conn. App. 186, 206 n.13, 210 A.3d 98 (2019) (‘‘argu-
ments of counsel are not evidence’’); Hall v. Hall, supra,
182 Conn. App. 756 (‘‘arguments of a pro se litigant are
not proof’’ (internal quotation marks omitted)). The
lack of an evidentiary basis in the record for the court’s
finding of an exchange of assets or equity for lifetime
alimony, on which its ultimate decision denying the
plaintiff’s motion for modification was based at least
in part, compels us to find that the court abused its
discretion in denying the plaintiff’s motion. Accord-
ingly, a new hearing on the plaintiff’s motion for modifi-
cation is necessary.4 See Steller v. Steller, supra, 181
Conn. App. 597–98 (because trial court’s decision on
motion for modification was based, in part, on clearly
erroneous finding, case was remanded for new hearing
on motion for modification); LeSueur v. LeSueur, supra,
186 Conn. App. 446 (same).
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The court denied the plaintiff’s motion for modification with one excep-
tion, which concerned the plaintiff’s obligation to pay for the defendant’s
round trip travel costs to Saint Maarten two times per year. Specifically, in
its memorandum of decision, the court stated: ‘‘Since the defendant indicated
that her accommodation in Saint Maarten was destroyed in Hurricane Irma,
the plaintiff may suspend his obligation set out in paragraph 18.3 (10) [of
the parties’ separation agreement] . . . to afford the defendant two round
trips to that island until his repayment of the Medicare penalties has been
completed. . . . Other than the suspension of the round trip payments, the
plaintiff’s motion for modification is denied.’’
2
In addition to finding that an exchange of equity for lifetime alimony
had taken place, the court also found that the defendant is in poor health,
that the plaintiff’s financial difficulties could not be attributed to the defen-
dant, that the plaintiff still has resources available to him despite the worsen-
ing of his financial state since the dissolution, that his payments to Medicare
should end shortly, that he should ask his sons to assist in repaying their
student loans, and that the plaintiff is able to afford out-of-state vacations,
while the defendant does not have similar resources available to her.
3
In fact, the agreement contains a provision that permits a ‘‘ ‘second
look’ ’’ or ‘‘de novo review . . . of alimony when the husband retires,’’
which could occur when he turns sixty-eight, approximately five years after
the dissolution judgment was rendered. Further, the defendant acknowl-
edged at oral argument before this court that there was no formal exchange
and stated that she ‘‘knew in the back of [her] mind’’ that she ‘‘didn’t want
to disturb’’ the plaintiff’s business because she ‘‘wanted [her] alimony,’’ so
she ‘‘agreed with [her] attorney’’ to ‘‘just go for the alimony.’’
4
In light of our determination as to the first two issues raised by the
plaintiff on appeal, we need not address the plaintiff’s third issue, in which
he alleged that the trial court erred in denying his motion for modification
of alimony after finding that his income had decreased by approximately
32 percent since the date of the dissolution.