Malpeso v. Malpeso

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CHARLOTTE MALPESO v. PASQUALE MALPESO
(AC 41129)
Keller, Elgo and Moll, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting motions to modify filed by the defendant and entering modified
financial orders. The dissolution judgment had incorporated the parties’
separation agreement, which provided that the defendant would pay
the plaintiff $20,000 per month in unallocated alimony and child support,
and contained a clause that limited the circumstances under which
alimony could be modified. In 2012, the defendant filed a motion to
modify alimony and child support, alleging, inter alia, that he was paying
the children’s college expenses and that there had been a downturn in
his financial circumstances. The plaintiff filed a motion for contempt,
alleging, inter alia, that the defendant had failed to comply with the
unallocated alimony and child support order from October, 2011 through
June, 2012. The trial court granted the defendant’s 2012 motion to modify,
converting the unallocated alimony and child support order into a peri-
odic alimony order of $11,138 per month. The court also determined
that the modification order would be retroactive but did not set forth
clearly the effective date of the modification order. With respect to the
motion for contempt, the court determined that the defendant was in
wilful and intentional violation of the court orders, and it awarded
the plaintiff attorney’s fees and costs. The defendant appealed and the
plaintiff cross appealed from those decisions to this court, which
affirmed the trial court’s finding of contempt but reversed the court’s
financial orders and award of attorney’s fees and costs, and remanded
the case for further proceedings. This court also concluded that the
trial court abused its discretion by failing to enter a clear order as to
the retroactivity of the modification order and directed the court, on
remand, to resolve the issue of retroactivity after calculating the proper
alimony award, if any. In 2014, the defendant filed another motion to
modify alimony and child support, which was subsequently amended.
The amended motion alleged, inter alia, that there had been a downturn
in the defendant’s financial circumstances and that his health had deteri-
orated significantly. In October, 2017, the trial court rendered judgment
with respect to, inter alia, the defendant’s 2012 and 2014 motions to
modify. The court granted the 2012 motion to modify, reducing the
defendant’s alimony obligation to $7500 per month as of July, 2012,
and it granted the 2014 motion to modify, as amended, reducing the
defendant’s alimony obligation to $4000 per month as of July, 2016. Held:
1. The plaintiff could not prevail on her claim that the trial court, in granting
the 2012 motion to modify, erroneously determined that the defendant’s
payment of the children’s college expenses constituted a substantial
change in circumstances warranting modification of alimony, which was
based on her claim that the parties’ separation agreement required the
defendant to pay the college expenses and contained no express provi-
sion permitting the modification of alimony on the basis of the defen-
dant’s payment of those expenses: that court did not determine that
the defendant’s payment of the college expenses alone constituted a
substantial change in circumstances and, instead, concluded that the
magnitude of the college and related expenses that the defendant had
paid constituted a substantial change in circumstances, and although
the separation agreement required the defendant to pay for the college
expenses, it also provided that alimony was modifiable upon a trial court
determining that a substantial change in circumstances had occurred;
furthermore, the plaintiff’s claim that the trial court failed to consider
the entirety of the parties’ financial circumstances in granting the 2012
motion to modify was unavailing, as the court concluded that, although
the defendant’s net monthly income increased in 2012 relative to the
time of dissolution, the significant increase in the defendant’s expenses
and liabilities from the time of dissolution to 2012 constituted a substan-
tial change in circumstances, and the court also set forth findings of
fact regarding the plaintiff’s age, education, employment history, and
employment status.
2. The plaintiff’s claim that the trial court erroneously found that the defen-
dant continued to suffer from cellulitis at the time of the proceedings
on remand was unavailing: although the defendant’s treating physician
testified that the defendant currently did not suffer from cellulitis, but
that the prior cellulitis had contributed in whole or in part to the disability
of the defendant’s right leg and that the defendant had a predisposition
for recurrent cellulitis, the court’s reference to the defendant’s ‘‘current
cellulitis’’ was not improper, as the court, in using that phrase, was
discussing the lasting effects of the defendant’s prior cellulitis, of which
there was ample evidence in the record, and before referring to the
defendant’s current cellulitis, the court found that he was at risk for
recurrent cellulitis, which belied the suggestion that the court found
that he was suffering from an active bout of cellulitis at the time of the
proceedings on remand; furthermore, the trial court did not improperly
engage in speculation by considering the defendant’s risk of developing
future medical conditions, and it properly considered the parties’ respec-
tive financial circumstances in adjudicating the 2014 motion to modify,
as amended, as the court considered, inter alia, the defendant’s gross
monthly income, net monthly income, and monthly expenses in 2012
and in 2017, concluded that the defendant’s reduction in income since
2012 and increased expenses, along with his significant health issues,
constituted a substantial change in circumstances, and, with respect to
the plaintiff, found, inter alia, that she had been unemployed since 2008
and had been living with her parents since January, 2017.
3. The trial court did not abused its discretion in modifying alimony retroac-
tively under the circumstances of this case:
a. The plaintiff could not prevail on her claim that the trial court erred
in prohibiting her from offering testimony that was relevant to the court’s
determination regarding whether to modify the defendant’s alimony
obligations retroactively, which was based on her claim that the court,
by sustaining the objection of the defendant’s counsel to the question
directed to her concerning the effect of the defendant’s contemptuous
conduct, improperly denied her the opportunity to testify about the
consequences of the defendant’s contemptuous conduct and that such
testimony would have provided the court with a stronger foundation
on which to deny the defendant retroactive modification of his alimony
obligations; even if the court abused its discretion by sustaining the
objection raised by the defendant’s counsel, the plaintiff failed to demon-
strate that the alleged error was harmful, as she offered testimony
regarding the consequences of the defendant’s conduct after the court
initially sustained the objection, and the court, in its memorandum of
decision, expressly considered the plaintiff’s argument that the defen-
dant’s conduct had harmed her.
b. The plaintiff’s claim that the trial court erred in modifying the defen-
dant’s alimony obligations retroactively because the defendant had
unclean hands was unavailing; that court, after setting forth the plaintiff’s
argument in opposition to the retroactive modification of alimony,
acknowledged the defendant’s arguments raised in support of modifying
alimony retroactively, namely, that the plaintiff was in good health yet
unemployed, that the plaintiff was eligible to receive reduced social
security benefits, that the motions to modify were several years old,
and that the defendant had overpaid the plaintiff, and the plaintiff cited
to no appellate authority to support her contention that the finding of
contempt against the defendant required the court to deny the retroactive
modification of alimony.
Argued January 10—officially released April 30, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Hon.
Dennis F. Harrigan, judge trial referee; judgment dis-
solving the marriage and granting certain other relief;
thereafter, the court, Wenzel, J., sustained in part the
plaintiff’s objection to the defendant’s motion for modi-
fication of child support, and the defendant appealed
to this court, which reversed the judgment and
remanded the case for further proceedings; subse-
quently, the court, Schofield, J., granted the plaintiff’s
motion for contempt and granted the defendant’s
motion to modify child support and alimony, and the
defendant appealed to this court; thereafter, the court,
Schofield, J., granted in part the plaintiff’s motion for
clarification and granted in part the defendant’s motion
to reargue, and the defendant filed an amended appeal
and the plaintiff filed a separate appeal with this court;
subsequently, this court consolidated the appeals,
reversed the judgment in part, and remanded the case
for further proceedings; thereafter, the court, Diana,
J., granted the defendant’s motion for modification of
child support, denied the defendant’s amended motion
to modify child support and alimony, granted the defen-
dant’s motion to modify child support and alimony,
granted the defendant’s amended motion to modify
child support and alimony, and granted certain other
relief; subsequently, the court, Diana, J., denied the
plaintiff’s motions to reargue, and the plaintiff appealed
to this court. Affirmed.
Kevin F. Collins, with whom, on the brief, was Ami
Jayne Wilson, for the appellant (plaintiff).
Barbara M. Schellenberg, with whom was Richard
L. Albrecht, for the appellee (defendant).
Opinion
MOLL, J. In this postjudgment dissolution matter, the
plaintiff, Charlotte Malpeso, appeals from the judgment
of the trial court, rendered on remand from this court,
granting motions to modify filed by the defendant, Pas-
quale Malpeso, and entering modified financial orders.
On appeal, the plaintiff claims that: (1) the court erred
in granting the defendant’s motion to modify filed on
January 25, 2012, because the court (a) improperly
determined that the defendant’s payment of the college
expenses of the parties’ children constituted a substan-
tial change in circumstances warranting the modifica-
tion of alimony and (b) failed to consider the totality
of the parties’ respective financial circumstances; (2)
the court erred in granting the defendant’s motion to
modify filed on October 10, 2014, as amended, because
the court (a) made a clearly erroneous factual finding
regarding the defendant’s health and engaged in specu-
lation by considering the defendant’s risk of developing
future medical conditions, and (b) failed to consider
the totality of the parties’ respective financial circum-
stances; and (3) the court erred in modifying alimony
retroactively.1 We disagree and, accordingly, affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the appeal. ‘‘The plaintiff . . .
married the defendant on August 23, 1986. On June
25, 2004, the marriage was dissolved. At that time, the
parties had three minor children: a son, born in 1988;
and twin daughters, born in 1993. The judgment of disso-
lution incorporated the parties’ separation agreement
(agreement) that provided, inter alia, that the defendant
would pay the plaintiff $20,000 per month in unallocated
alimony and child support.2 The agreement also con-
tained a clause limiting the circumstances in which the
amount and term of alimony could be modified.3 The
judgment of dissolution was opened and modified once
in December, 2005, to allow the defendant to purchase
certain property from the plaintiff.’’ (Footnotes in origi-
nal.) Malpeso v. Malpeso, 165 Conn. App. 151, 155–56,
138 A.3d 1069 (2016).
In May, 2011, the defendant ceased complying with
the $20,000 unallocated alimony and child support order
(unallocated order). On May 25, 2011, the defendant
filed a motion to modify child support on the basis
that the parties’ twin daughters would reach the age of
majority in June, 2011, and graduate high school at the
end of that school year (May, 2011 motion to modify).
The plaintiff objected to the May, 2011 motion to mod-
ify. Subsequently, the defendant filed an amended
motion to modify both alimony and child support, dated
August 16, 2011, on the grounds that (1) the parties’
twin daughters had reached the age of majority and
had graduated from high school and (2) the economy
of New York had ‘‘undergone a substantial change as
a result of a catastrophic event’’ (August, 2011 amended
motion to modify). On August 22, 2011, the trial court,
Wenzel, J., sustained in part the plaintiff’s objection,
ruling that because alimony and child support could be
modified only pursuant to paragraph 3.2 of the
agreement, the defendant’s claim alleging a substantial
change in the economy of New York was the sole proper
ground for modification that the defendant had raised.
On September 6, 2011, the defendant appealed from the
August 22, 2011 ruling (2011 appeal).
On January 25, 2012, while the 2011 appeal was pend-
ing, the defendant filed another motion to modify ali-
mony and child support (2012 motion to modify). In
support of the 2012 motion to modify, the defendant
alleged that (1) the parties’ three children had reached
the age of majority and were no longer residing with
the plaintiff, (2) he was paying the children’s college
expenses,4 and (3) there had been a downturn in his
financial circumstances.
On June 14, 2012, the plaintiff filed a motion for
contempt, alleging, inter alia, that the defendant had
failed to comply with the unallocated order from Octo-
ber, 2011 through June, 2012 (2012 motion for con-
tempt). The court, Schofield, J., held multiple hearings
between October and December, 2012, to address, inter
alia, the defendant’s 2012 motion to modify and the
plaintiff’s 2012 motion for contempt.
On February 19, 2013, this court published its deci-
sion resolving the 2011 appeal. See Malpeso v. Malpeso,
140 Conn. App. 783, 60 A.3d 380 (2013). Reversing the
August 22, 2011 ruling of the trial court, this court held
that the child support encompassed within the unallo-
cated order was not subject to paragraph 3.2 of the
agreement that limited only the modification of ali-
mony. Id., 788–89.
Following this court’s resolution of the 2011 appeal,
Judge Schofield issued several decisions adjudicating,
inter alia, the defendant’s 2012 motion to modify and
the plaintiff’s 2012 motion for contempt.5 In summary,
the court granted the 2012 motion to modify, converting
the unallocated order into a periodic alimony order
of $11,138 per month, which the court calculated by
reducing the unallocated order by $8862, the presump-
tive monthly amount of child support for three children
under the child support and arrearage guidelines in
effect in 2005. The court determined that the modifica-
tion order would be retroactive; however, the court did
not set forth clearly the effective date of the modifica-
tion order. In addition, the court concluded that it
lacked subject matter jurisdiction to consider the defen-
dant’s request to terminate alimony. With respect to
the 2012 motion for contempt, the court determined that
the defendant was in ‘‘wilful and intentional violation
of the court orders.’’ As relief, the court ordered the
defendant to pay the attorney’s fees and costs of the
plaintiff in the amount of $41,016.18. Furthermore, after
initially ordering the defendant to pay the plaintiff
$440,000, the sum of the arrearage from October, 2011
through July, 2013, the court determined that the arrear-
age had to be recalculated; however, the court did not
endeavor to recalculate the arrearage. In 2014, the
defendant appealed and the plaintiff cross appealed
from Judge Schofield’s decisions (2014 appeal and
cross appeal).
On October 10, 2014, the defendant filed another
motion to modify alimony and child support (2014
motion to modify). In support of the 2014 motion to
modify, the defendant alleged that (1) there had been
a downturn in his financial circumstances and (2) the
plaintiff had sold her residence for a considerable sum
and had relocated to a less costly residence.
On May 3, 2016, this court published its decision
resolving the 2014 appeal and cross appeal. See Malpeso
v. Malpeso, supra, 165 Conn. App. 151. First, this court
concluded that the trial court applied the wrong legal
standard in calculating the child support component of
the unallocated order. Id., 163–74. After giving the trial
court guidance regarding how to calculate the child
support component of the unallocated order on remand,
this court provided the following additional directions:
‘‘[T]o determine a new alimony order, after the correct
child support amount is deducted from the [unallocated
order], the court must subtract that amount from the
total amount of [the unallocated order] . . . i.e., sub-
tract the 2004 child support amount from $20,000. The
difference represents the 2004 alimony award. Because
grounds for modification have been shown . . . the
trial court is entitled to consider all the factors, as
mandated by . . . [General Statutes §] 46b-82, avail-
able in determining the initial award. . . . Conse-
quently, the court must now compare the newly
determined 2004 alimony award against the parties’
2012 financial circumstances because the [2012 motion
to modify] was before the court in 2012. Finally, because
we do not know the impact of the college expenses on
the court’s analysis in developing a new alimony order
on remand, we conclude that the financial mosaic as
to alimony must be crafted anew. Accordingly, a new
hearing is required to consider the financial issues per-
taining to fashioning an alimony order, if any.’’6 (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) Id., 171–74. Second, this court con-
cluded that the trial court abused its discretion by failing
to enter a clear order as to the retroactivity of the
modification order and directed the court, on remand,
to ‘‘resolve the issue of retroactivity’’ after calculating
the proper alimony award, if any. Id., 174–78. Third,
this court concluded that the trial court erroneously
determined that it lacked subject matter jurisdiction to
entertain the defendant’s claim seeking to modify or
terminate alimony. Id., 178–80. Finally, this court upheld
the finding of contempt against the defendant for his
noncompliance with the unallocated order but con-
cluded that the trial court erred by failing to recalculate
the amount of the arrearage owed in relation to the
contempt finding and abused its discretion by awarding
excessive attorney’s fees and costs with respect to the
2012 motion for contempt. Id., 180–85. This court
directed the trial court, on remand, to recalculate the
arrearage. Id., 183. In sum, this court affirmed the trial
court’s finding of contempt, but we reversed the court’s
financial orders and award of attorney’s fees and costs,
and remanded the case for further proceedings. Id., 185.
On July 11, 2016, the defendant submitted a request
to amend the 2014 motion to modify, which the court,
Colin, J., granted on August 1, 2016. In support of the
2014 motion to modify, as amended, the defendant
alleged that (1) there had been a downturn in his finan-
cial circumstances, (2) the plaintiff sold her residence
for a considerable sum and relocated to a less costly
residence, and (3) his health had deteriorated signifi-
cantly.
Following this court’s remand in the 2014 appeal and
cross appeal, the trial court, Diana, J., held hearings
from October 16 through 18, 2017, on the following
motions: (1) the defendant’s May, 2011 motion to mod-
ify; (2) the defendant’s August, 2011 amended motion
to modify; (3) the defendant’s 2012 motion to modify;
(4) the plaintiff’s 2012 motion for contempt; and (5) the
defendant’s 2014 motion to modify, as amended. By
way of a memorandum of decision issued on October
26, 2017, the court entered the following orders. First,
the court unbundled the unallocated order, determining
that the child support component amounted to $3000
and the alimony component amounted to $17,000. Sec-
ond, the court granted the May, 2011 motion to modify,
terminating the defendant’s $3000 monthly child sup-
port obligation as of June 30, 2011. Third, the court
denied the August, 2011 amended motion to modify.
Fourth, the court granted the 2012 motion to modify,
reducing the defendant’s alimony obligation to $7500
per month as of July, 2012. Fifth, observing that Judge
Schofield’s finding of contempt against the defendant
had been affirmed but that the associated award of
attorney’s fees and costs had been vacated with direc-
tions on remand, the court ordered the defendant to
pay $4680 in attorney’s fees pursuant to General Stat-
utes § 46b-87. Sixth, the court granted the 2014 motion
to modify, as amended, reducing the defendant’s ali-
mony obligation to $4000 per month as of July, 2016.
Finally, the court recalculated the alimony arrearage to
be $628,000 and found that, as of October 18, 2017, the
defendant had paid the plaintiff $618,627 of the balance
due and owing. The court ordered the defendant to pay
any payments due to the plaintiff by way of a monthly
$1000 alimony payment, unless otherwise agreed to by
the parties. The plaintiff moved for reargument of the
court’s judgment, which the court denied. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
We begin by setting forth the applicable standard of
review governing our resolution of the plaintiff’s claims.
‘‘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 relations matters, we
allow every reasonable presumption in favor of the
correctness of its action. . . . Thus, unless the trial
court applied the wrong standard of law, its decision
is accorded great deference because the trial court is
in an advantageous position to assess the personal fac-
tors so significant in domestic relations cases . . . .
With respect to the factual predicates for modification
of an alimony . . . award, our standard of review is
clear. . . .
‘‘Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Our deferential standard of review, however, does
not extend to the court’s interpretation of and applica-
tion of the law to the facts. It is axiomatic that a matter
of law is entitled to plenary review on appeal.’’ (Citation
omitted; internal quotation marks omitted.) Fulton v.
Fulton, 156 Conn. App. 739, 744–45, 116 A.3d 311 (2015).
I
We first address the plaintiff’s claims regarding the
granting of the defendant’s 2012 motion to modify. Spe-
cifically, the plaintiff asserts that the court (1) improp-
erly determined that the defendant’s payment of the
children’s college expenses constituted a substantial
change in circumstances warranting modification of
alimony and (2) failed to consider the entirety of the
parties’ respective financial circumstances.7 We
disagree.
A
The plaintiff claims that the court erroneously deter-
mined that the defendant’s payment of the children’s
college expenses constituted a substantial change in
circumstances warranting modification of alimony.
Specifically, the plaintiff asserts that the court’s reduc-
tion of her alimony award on the ground that the defen-
dant paid the college expenses was improper because
the agreement required the defendant to pay the college
expenses and contained no express provision permit-
ting the modification of alimony on the basis of the
defendant’s payment of those expenses. We are not per-
suaded.
‘‘[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),8 which
provides that a final order for alimony may be modified
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.’’ (Citation omitted; footnote altered; internal quo-
tation marks omitted.) Olson v. Mohammadu, 310
Conn. 665, 671–72, 81 A.3d 215 (2013).
In granting the 2012 motion to modify, the court
observed that, pursuant to the agreement, the defendant
agreed to be ‘‘responsible for the costs of undergraduate
college . . . for the three minor children.’’ (Internal
quotation marks omitted.) The court continued: ‘‘In the
fall of 2011, the parties’ twin daughters attended the
University of Vermont and the George Washington Uni-
versity and, in 2012, their son attended Iona College.
The parties do not dispute that these expenses, per
child, ranged from $40,000 to $60,000 each year and
that they were paid for by the defendant. The parties’
daughters completed college in four years; their son
went to college for a fifth year. In total, the defendant
paid for thirteen years of college for the three children.
Additionally, he paid for their associated expenses of
attending college, which they charged on his credit card.
. . . The defendant stated that, in just two years, his
children charged a total of $130,000. The defendant also
paid for tutors; in 2011, his son’s tutor cost $87,500. In
the [2012 motion to modify], the defendant asserted a
substantial change in circumstances due in part to these
college expenses. The defendant claimed . . . that col-
lege tuition increased 100 percent since the 2004 disso-
lution judgment. The magnitude of the college and
related payments represents a substantial change in
circumstances.’’ Additionally, at the outset of its memo-
randum of decision, the court stated that it found the
defendant’s testimony to be credible.
The court did not determine that the defendant’s pay-
ment of the college expenses alone constituted a sub-
stantial change in circumstances; instead, the court,
citing the large sums that the defendant had expended
in college expenses and the significant increase in the
cost of tuition since the time of dissolution, concluded
that the magnitude of the college and related expenses
that the defendant had paid constituted a substantial
change in circumstances. Although the agreement
required the defendant to pay for the college expenses,
the agreement also provided that alimony was modifi-
able after July 1, 2012, upon a trial court determining
that a substantial change in circumstances had
occurred. As found by the trial court, the considerable
cost of the college expenses paid by the defendant was
a substantial change in circumstances, a finding we
leave undisturbed, and, thus, the court did not err in
relying on that ground to modify alimony.9
B
The plaintiff also thinly claims that the court failed
to consider the entirety of the parties’ financial circum-
stances in granting the 2012 motion to modify. We
disagree.
In the 2012 motion to modify, the defendant alleged
that there had been a downturn in his financial circum-
stances. With respect to that assertion, the court made
the following findings. In 2012, the defendant’s gross
monthly income was approximately $90,000 and his net
monthly income was approximately $60,000, constitut-
ing an increase of approximately $20,000 in the defen-
dant’s net monthly income relative to the time of
dissolution. Moreover, in 2012, the defendant’s monthly
expenses totaled $66,000 and his unsecured liabilities
totaled over $5,000,000, whereas at the time of dissolu-
tion the defendant’s monthly expenses totaled $16,800
and his liabilities totaled $964,000. The $5,000,000 in
unsecured liabilities was comprised primarily of insur-
ance refund claims. Beginning in 2007, several insurers
determined that certain payments made to the defen-
dant, who is a self-employed dentist specializing in den-
tal reconstructive surgery, pursuant to his patients’
insurance plans were not covered by the plans and,
as a result, the insurers demanded a refund of those
payments. Since 2015, this ‘‘ ‘clawback’ ’’ action has cost
the defendant approximately $1,000,000. Moreover,
there is a twenty count action pending against the defen-
dant in New York, sounding in, inter alia, unjust enrich-
ment in relation to the refund claims. The court
concluded that the significant increase in the defen-
dant’s expenses and liabilities from the time of dissolu-
tion to 2012 constituted a substantial change in
circumstances.
Additionally, in a prior section of its memorandum
of decision setting forth additional findings of fact, the
court found that the plaintiff was sixty-two years old,
healthy, had a high school degree, studied art history
in college for one and one-half years, worked as a flight
attendant for ten years, had been unemployed since
2008 following her most recent job selling shoes at a
boutique, and had lived with her parents since Janu-
ary, 2017.
At the outset of its memorandum of decision, the
court stated that it had considered all of the evidence
presented, it had taken judicial notice of the entire court
file, and it had found the defendant’s testimony credible.
Upon our review of the record before us, we conclude
that the court properly considered the parties’ respec-
tive financial circumstances in adjudicating the 2012
motion to modify.
II
We next turn to the plaintiff’s claims regarding the
judgment of the court granting the defendant’s 2014
motion to modify, as amended. Specifically, the plaintiff
asserts that the court (1) erroneously found that the
defendant continued to suffer from cellulitis at the time
of the proceedings on remand and improperly engaged
in speculation by considering the defendant’s risk of
developing future medical conditions and (2) failed to
consider the entirety of the parties’ respective financial
circumstances. These contentions are unavailing.
A
The plaintiff asserts that the court erroneously found
that the defendant continued to suffer from cellulitis at
the time of the proceedings on remand and improperly
engaged in speculation by considering the defendant’s
risk of developing future medical conditions. We are
not persuaded.
In his 2014 motion to modify, as amended, the defen-
dant alleged, inter alia, that his health had deteriorated
significantly. Specifically, he alleged that: he had been
diagnosed with cancer; his prostate was removed in
December, 2015, requiring him to be under close medi-
cal supervision and causing him to suffer from inconti-
nence; and he suffered from cellulitis,10 which required
him to be hospitalized in 2015 and caused a permanent
disability of his right leg.
During the proceedings on remand, the defendant
testified that in May, 2015, he developed cellulitis in
his right leg, causing him to miss approximately two
months of work. He also testified that, although the
cellulitis had dissipated after he had been treated with
antibiotics, the cellulitis had caused partial numbness
in his right leg and, as a result, he no longer drives or
performs long surgeries that require him to stand for
extended periods of time. Furthermore, the defendant
testified that, as a result of the numbness in his leg, he
slipped while performing surgery on one of his patients
and nicked the patient’s nerve with a scalpel that he
was holding. The patient subsequently instituted legal
proceedings against him. In addition, Angelo Acquista,
the defendant’s treating physician whose deposition tes-
timony was admitted into evidence in lieu of trial testi-
mony, testified, inter alia, that the defendant currently
did not suffer from cellulitis, but that the prior cellulitis
had contributed in whole or in part to the disability of
the defendant’s right leg and that the defendant had a
predisposition for recurrent cellulitis. Dr. Acquista also
recommended that the defendant retire from his dental
practice because his job required him to stand for long
periods of time, which predisposed him to develop ail-
ments, such as a pulmonary embolism,11 which is a
potentially life threatening condition.
Against this backdrop, the court made the following
relevant findings with respect to the defendant’s health.
According to Dr. Acquista, the defendant is at risk for
recurrent cellulitis. The defendant ‘‘is not only predis-
posed to recurrent cellulitis but is also experiencing the
symptoms of his current cellulitis, including abnormal
sensations such as swelling and pain, when he stands
for a protracted period of time.’’ (Emphasis added.) As
a result of the numbness in his leg, the defendant slipped
while performing surgery on one of his patients and hit
the patient’s nerve with a scalpel, which led to the
patient commencing legal proceedings against him. The
defendant no longer drives or performs long surgeries.
Moreover, Dr. Acquista recommended that the defen-
dant retire from his dental practice to avoid developing
additional serious medical conditions. The court con-
cluded that the defendant’s significant health issues,
among other things, constituted a substantial change
in circumstances.
The plaintiff asserts that, in light of Dr. Acquista’s
testimony, the court’s finding that the defendant had
‘‘current cellulitis’’ was clearly erroneous. In response,
the defendant argues that, in using the phrase ‘‘current
cellulitis,’’ the court was discussing the lasting effects
of the defendant’s prior cellulitis, of which there is
ample evidence in the record. We agree with the defen-
dant. Although the court referenced the defendant’s
‘‘current cellulitis,’’ it is evident that the focus of the
court’s statement was the symptoms that the defendant
continued to experience as a result of the prior cellulitis
that had afflicted him in 2015. The defendant and Dr.
Acquista provided sufficient testimony detailing the
consequences of the prior cellulitis on the defendant’s
current health. In addition, before referring to the defen-
dant’s ‘‘current cellulitis,’’ the court found that the
defendant was at risk for recurrent cellulitis, which
belies the suggestion that the court found that the defen-
dant was suffering from an active bout of cellulitis at
the time of the proceedings on remand.
We also reject the plaintiff’s claim that the court
improperly engaged in speculation and conjecture by
considering the defendant’s risk of developing future
medical conditions. Although it is axiomatic that a
finder of fact may not engage in speculation or conjec-
ture; Hammel v. Hammel, 158 Conn. App. 827, 834, 120
A.3d 1259 (2015), citing State v. Bharrat, 129 Conn.
App. 1, 15, 20 A.3d 9, cert. denied, 302 Conn. 905, 23
A.3d 1243 (2011); the court’s findings regarding the
defendant’s risk of developing future medical condi-
tions, which the plaintiff does not challenge as clearly
erroneous, are supported by the evidence in the record.
In short, the court did not engage in speculation or
conjecture; rather, the court, acting within its proper
discretion, considered the defendant’s undisputed risk
of developing future health problems in concluding that
a substantial change in circumstances had occurred on
the basis of the defendant’s health.
B
The plaintiff also cursorily claims that the court, in
granting the 2014 motion to modify, as amended, failed
to consider the entirety of the parties’ financial circum-
stances. We disagree.
In the 2014 motion to modify, as amended, the defen-
dant alleged that there had been a downturn in his
financial circumstances. With respect to that claim, the
court found as follows. In 2017, the defendant’s gross
monthly income was $6636, his net monthly income
was $5716, and his monthly expenses were $14,900. In
2016, his gross income was $465,000, which largely was
comprised of delayed payments he received for prior
work he had performed. Earlier in its memorandum of
decision, the court had found that, in 2012, the defen-
dant’s gross monthly income was approximately
$90,000, his net monthly income was approximately
$60,000, and his monthly expenses were $66,000. In
addition, the defendant’s dental practice relies on refer-
rals from other physicians. In the past, the defendant
averaged between twenty to twenty-five referrals per
month, whereas the defendant averaged between two
to three referrals per month at the time of the proceed-
ings on remand. The court concluded that the defen-
dant’s reduction in income since 2012 and increased
expenses, along with his significant health issues, con-
stituted a substantial change in circumstances. As set
forth earlier in this opinion, with respect to the plaintiff,
the court found, inter alia, that she had been unem-
ployed since 2008 and had been living with her parents
since January, 2017.
We reiterate that, at the outset of its memorandum
of decision, the court stated that it had considered all
of the evidence presented, it had taken judicial notice
of the entire court file, and it had found the defendant’s
testimony credible. Upon our review of the record
before us, we conclude that the court properly consid-
ered the parties’ respective financial circumstances in
adjudicating the 2014 motion to modify, as amended.
III
Finally, we address the plaintiff’s claim that, in grant-
ing the defendant’s 2012 motion to modify and the
defendant’s 2014 motion to modify, as amended, the
court erroneously modified the defendant’s alimony
obligations retroactively. Specifically, the plaintiff
asserts that (1) the court improperly prohibited her
from offering testimony relevant to the court’s decision
regarding whether to modify alimony retroactively, and
(2) the defendant, by having been found in contempt
for violating the unallocated order, had unclean hands
and, thus, was not entitled to retroactive modification
of alimony. We are not persuaded.
Pursuant to § 46b-86 (a), ‘‘[n]o order for periodic pay-
ment of permanent alimony or support may be subject
to retroactive modification, except that the court may
order modification with respect to any period during
which there is a pending motion for modification of an
alimony or support order from the date of service of
notice of such pending motion upon the opposing party
pursuant to section 52-50.’’ ‘‘Although there is no bright
line test for determining the date of retroactivity of
child support [or alimony] payments, this court has set
forth factors that may be considered. Specifically, in
Hane [v. Hane, 158 Conn. App. 167, 176, 118 A.3d 685(2015)], we expressly noted that a retroactive award
may take into account the long time period between
the date of filing a motion to modify, or . . . the con-
tractual retroactive date, and the date that motion is
heard . . . . The court may examine the changes in
the parties’ incomes and needs during the time the
motion is pending to fashion an equitable award based
on those changes.’’ (Internal quotation marks omitted.)
LeSueur v. LeSueur, 172 Conn. App. 767, 780, 162 A.3d
32 (2017).
During the proceedings on remand, the plaintiff
argued that, in the event that the court granted the
defendant’s motions seeking to modify alimony, the
defendant was not entitled to retroactive modification
of alimony. The plaintiff asserted that the defendant
was appearing before the court with unclean hands
stemming from his failure to comply with the unallo-
cated order, which resulted in a finding of contempt
against him, which this court affirmed. The plaintiff
contended that the defendant’s ‘‘self-help’’ measures
had caused her harm, as she was dependent on the
payments made by the defendant pursuant to the unallo-
cated order. Accordingly, the plaintiff argued, it was
inequitable to award the defendant retroactive modifi-
cation of his alimony obligations.
In its memorandum of decision, the court stated in
relevant part: ‘‘The plaintiff argues that the defendant’s
self-help measures should not be ignored because [they]
caused her harm. Specifically, the defendant left the
plaintiff with no income to cover her expenses, and,
consequently, she was forced to live off her savings,
which are now significantly depleted. The plaintiff is
seeking to maintain the order of $20,000 per month
from May, 2011 through October, 2017, minus payments
made and adjusted by the unbundling of the unallocated
order. The defendant argues that the plaintiff never
returned to work and is in good health. The plaintiff is
eligible to receive social security benefits, though at a
reduced rate if taken now rather than waiting until
she is eligible to receive full benefits. The defendant
reminds the court that these motions were filed five
and six years ago, and that the lack of financial relief
has caused the defendant to overpay the plaintiff, as
he believes he was entitled to a modification.’’ The
court proceeded to grant the defendant’s 2012 motion
to modify and 2014 motion to modify, as amended, and
to enter modified alimony orders that were applied ret-
roactively.
A
We first turn to the plaintiff’s claim that the court
erred in prohibiting her from offering testimony that
was relevant to the court’s determination regarding
whether to modify the defendant’s alimony obligations
retroactively. This claim is unavailing.
‘‘[T]he trial court has broad discretion in ruling on
the admissibility [and relevancy] of evidence. . . . The
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . Additionally, before a party is
entitled to a new trial because of an erroneous eviden-
tiary ruling, he or she has the burden of demonstrating
that the error was harmful. . . . The harmless error
standard in a civil case is whether the improper ruling
would likely affect the result.’’ (Internal quotation
marks omitted.) Porter v. Thrane, 98 Conn. App. 336,
342–43, 908 A.2d 1137 (2006).
During the hearings held on remand, the plaintiff’s
counsel called the plaintiff to testify. During direct
examination, the plaintiff’s counsel asked the plaintiff
to explain how the defendant’s noncompliance with the
unallocated order had ‘‘affect[ed]’’ her. The defendant’s
counsel objected, arguing that the plaintiff’s counsel
improperly was attempting to introduce evidence of the
consequential damages of the defendant’s contemptu-
ous conduct, which was not germane to the motions
before the court. In response, the plaintiff’s counsel
asserted that the alleged harm suffered by the plaintiff
as a result of the defendant’s cessation of payments
pursuant to the unallocated order was critical for the
court to consider in determining whether to modify
alimony retroactively. Following a lengthy argument,
the court sustained the objection. Notwithstanding the
court’s ruling, the plaintiff, absent objection, proceeded
to testify that, since May, 2011, she had no sources of
income or support other than the defendant’s payments
under the unallocated order and that, once the defen-
dant had stopped remitting those payments, she was
forced to deplete her savings to satisfy her various
financial liabilities.
The plaintiff asserts that the court, by sustaining the
objection of the defendant’s counsel to the question
directed to her concerning the effect of the defendant’s
contemptuous conduct, improperly denied her the
opportunity to testify about the consequences of the
defendant’s contemptuous conduct and that such testi-
mony would have provided the court with a stronger
foundation upon which to deny the defendant retroac-
tive modification of his alimony obligations. Assuming,
without deciding, that the court abused its discretion
by sustaining the objection, the plaintiff has failed to
demonstrate that the alleged error was harmful.
Although the court initially sustained the objection
raised by the defendant’s counsel, the plaintiff subse-
quently offered testimony, absent objection, regarding
the consequences of the defendant’s conduct. In addi-
tion, in its memorandum of decision, the court expressly
considered the plaintiff’s argument that the defendant’s
conduct had harmed her. Thus, we reject the plain-
tiff’s claim.
B
We next turn to the plaintiff’s claim that the court
erred in modifying the defendant’s alimony obligations
retroactively because the defendant had unclean hands
as a result of his violation of the unallocated order, for
which he was found in contempt. She asserts that, in
light of the substantial damages that she suffered as a
result of the defendant’s contemptuous conduct, it was
inequitable for the court to modify alimony retroactively
while awarding her only $4680 in attorney’s fees in
relation to the 2012 motion for contempt.12 We disagree.
In its memorandum of decision, after setting forth
the plaintiff’s argument in opposition to the retroactive
modification of alimony, the court acknowledged the
defendant’s arguments raised in support of modifying
alimony retroactively, namely, that the plaintiff was in
good health yet unemployed, the plaintiff was eligible
to receive reduced social security benefits, the motions
to modify were several years old, and, on the basis of
his belief that he was entitled to a modification of the
unallocated order, the defendant had overpaid the plain-
tiff. The plaintiff cites to no appellate authority, and we
are aware of none, to support her contention that the
finding of contempt against the defendant required the
court to deny the retroactive modification of alimony.
We conclude that the court did not abuse its discretion
in modifying alimony retroactively under the circum-
stances of this case.13
The judgment is affirmed.
In this opinion the other judges concurred.
1
For ease of discussion, we address the plaintiff’s claims in a different
order than they are set forth in her appellate brief.
2
‘‘The agreement stated in relevant part: ‘3.1 During the lifetime of the
[defendant] and until the death, remarriage or cohabitation of the [plaintiff],
whichever event shall first occur, the [defendant] shall pay to the [plaintiff]
as alimony, or separate maintenance for the support of the minor children
the sum of $20,000 per month.’ ’’ Malpeso v. Malpeso, 165 Conn. App. 151,
155 n.3, 138 A.3d 1069 (2016).
3
‘‘In its entirety, the clause provided: ‘3.2 The amount and term of alimony
shall be modifiable only under the following circumstances:
‘‘ ‘(a) Upon a court of competent jurisdiction’s determination that the
[defendant] has become disabled as defined by the Social Security Adminis-
tration or in the event that the economy of New York undergoes a substantial
change as a result of a catastrophic event (such as 9/11).
‘‘ ‘(b) After July 1, 2012, upon a court of competent jurisdiction’s determi-
nation that there has been a substantial change of circumstances as provided
for in Connecticut General Statute[s] § 46b-84a.
‘‘ ‘(c) The parties contemplate that the [plaintiff] may obtain full or part-
time employment either before or after entry of a decree of dissolution.
Such employment shall not be deemed a substantial change in circumstances
during the first eight years of the alimony term.
‘‘ ‘(d) Only under the circumstances set forth in this paragraph 3.3 shall
the [defendant’s] obligation to pay alimony pursuant to paragraph 3.1 be
modifiable during the first eight years.’
‘‘Paragraph 3.3 provided: ‘The parties shall endeavor to negotiate child
support if alimony terminates while any child or children are minors. If they
are unable to agree, the amount of child support to be paid by the [defendant]
shall be determined by a court of competent jurisdiction. Child support
payments shall be retroactive to the last day on which alimony was paid.’ ’’
Malpeso v. Malpeso, 165 Conn. App. 151, 155 n.4, 138 A.3d 1069 (2016).
4
Paragraph 10.2 of the agreement provided: ‘‘The [defendant] shall be
responsible for payment of the costs of undergraduate college and/or voca-
tional educational expenses for the three minor children. For purposes of
this subparagraph, said undergraduate college educational expenses shall
include, room, board, books, tuition, fees and a reasonable travel allowance
to [and] from home. Said expenses shall also include college application
fees and costs, the costs of SAT preparation courses and the costs of required
pre-college tests.’’
5
A comprehensive recitation of Judge Schofield’s decisions, which is not
necessary to repeat in this opinion, is set forth in Malpeso v. Malpeso, supra,
165 Conn. App. 157–63.
6
‘‘The scope of that hearing is limited. As discussed, when the alimony
order is determined from the [unallocated order], the court will need to
consider the financial resources of the defendant. This necessarily implicates
considering the impact of the college expenses on his ability to pay any
new alimony award. . . . This evaluation, however, does not require the
court to revisit the college expense order and modify it. Moreover, the limited
scope of the hearing, in this case, does not require a court to reconsider
long settled property distribution amongst the parties.’’ (Citation omitted.)
Malpeso v. Malpeso, supra, 165 Conn. App. 174 n.22.
7
The plaintiff raises two additional claims with respect to the 2012 motion
to modify that require minimal discussion. First, the plaintiff asserts that,
by granting the 2012 motion to modify and reducing her alimony award on
the basis of the defendant’s payment of the children’s college expenses, the
court in effect modified the educational support provision of the agreement
and made the plaintiff liable for the college expenses. We find no merit in
the plaintiff’s constrained interpretation of the court’s decision.
Second, the plaintiff contends that the defendant, rather than seeking
modification of alimony, should have sought modification of the educational
support order pursuant to General Statutes § 46b-56c (h) on the basis of
his payment of the college expenses. We disagree. Pursuant to the agreement,
the defendant was entitled to seek modification of alimony after July 1,
2012, predicated on a substantial change in circumstances. The plaintiff
cites to no appellate authority, and we are aware of none, supporting her
proposition that the defendant was obligated to seek modification of the
educational support order, rather than alimony, on the ground that the
college expenses were substantial.
8
General Statutes (Rev. to 2011) § 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, an order
for alimony or support pendente lite or an order requiring either party to
maintain life insurance for the other party or a minor child of the parties
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 . . . .’’
9
The plaintiff also claims that, if the defendant’s payment of the college
expenses warranted a downward modification of alimony, then the court
should have increased the plaintiff’s alimony award once the defendant had
satisfied his obligation to pay the college expenses. The court did not base
its decision granting the 2012 motion to modify and reducing the plaintiff’s
alimony award on the magnitude of the children’s college expenses alone;
rather, the court also determined that the significant increase in the defen-
dant’s expenses and liabilities since the time of dissolution constituted a
substantial change in circumstances warranting modification of alimony.
Thus, the plaintiff’s claim fails.
10
‘‘Cellulitis is a bacterial skin infection that occurs in the subcutaneous
tissue or the dermis, which results in inflammation.’’ Mulcahy v. Hartell,
140 Conn. App. 444, 446 n.2, 59 A.3d 313 (2013); see also Stedman’s Medical
Dictionary (27th Ed. 2000) p. 317 (defining cellulitis as ‘‘[i]nflammation of
subcutaneous, loose connective tissue’’).
11
A pulmonary embolism is a blood clot in the lung. O’Connor v. Med-
Center Home Health Care, Inc., 140 Conn. App. 542, 545 n.3, 59 A.3d 385,
cert. denied, 308 Conn. 942, 66 A.3d 884 (2013).
12
The plaintiff does not claim that the amount of attorney’s fees awarded
to her in relation to the 2012 motion for contempt was erroneous. We
construe her claim on appeal to challenge only the retroactivity of the
modified alimony orders entered in relation to the defendant’s 2012 motion
to modify and the defendant’s 2014 motion to modify, as amended.
13
The plaintiff also appears to challenge the court’s determination that
the recalculated alimony arrearage totaled $628,000. Specifically, the plaintiff
asserts that the court erroneously found that a $100,000 payment made by
the defendant to her in November, 2011, brought the defendant current with
respect to the arrearage owed at that time, arguing that she testified during
the proceedings on remand that, following the $100,000 payment, there
remained a $20,000 arrearage for which the court failed to account. We
disagree. In its memorandum of decision, the court found that in November,
2011, the defendant paid the plaintiff $100,000, bringing him current with
respect to the arrearage he owed through September, 2011. During the
proceedings on remand, the plaintiff testified that, prior to the $100,000
payment, there was a $120,000 arrearage as of October, 2011. Thus, there
is no conflict between the plaintiff’s testimony and the court’s finding.