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Malpeso v. Malpeso

Court of Appeals of Connecticut

May 3, 2016

CHARLOTTE MALPESO
v.
PASQUALE MALPESO

Argued December 14, 2015

Appeal from Superior Court, judicial district of Stamford-Norwalk, Schofield, J.

Barbara M. Schellenberg, with whom were Richard L. Albrecht and, on the brief, Bruce L. Levin, for the appellant-appellee (defendant).

Kevin F. Collins, for the appellee-appellant (plaintiff).

DiPentima, C. J., and Beach and Sheldon, Js.

OPINION

DiPentima, C.J.

In this postdissolution marital matter, the defendant, Pasquale Malpeso, appeals from the judgment of the trial court. Although the court granted his motion to modify the original unallocated alimony and child support that was entered as part of the parties’ judgment of dissolution, the defendant contends that the court (1) applied the wrong legal standard in calculating the child support component of the unallocated alimony and child support order, (2) determined the wrong effective date of the modification, (3) erroneously concluded that a lien could be placed on the defendant’s assets for him to pay his alimony obligation, and (4) incorrectly stated that it lacked jurisdiction to terminate his obligation to pay alimony. The defendant further claims that the trial court abused its discretion in finding him in contempt and ordering him to pay the plaintiff’s counsel fees and costs.[1] We reverse, in part, and affirm, in part, the judgment of the trial court.[2]

We set forth the following facts and procedural history pertinent to this appeal. The plaintiff, Charlotte Malpeso, 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 dissolution 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.[3] The agreement also contained a clause limiting the circumstances in which the amount and term of alimony could be modified.[4] The judgment of dissolution was opened and modified once in December, 2005, to allow the defendant to purchase certain property from the plaintiff.

The complicated procedural history of this case began on May 25, 2011, when the defendant filed a motion to modify child support. In response, on June 17, 2011, the plaintiff filed an objection to the defendant’s motion. In August, 2011, the defendant amended his motion not only to modify child support, but also to modify alimony based on the following grounds: (1) the parties’ 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. The court, Wenzel, J., ruled that the only permissible ground for modification, pursuant to paragraph 3.2 of the agreement, was the claim alleging a substantial change in the economy of New York. The court sustained the plaintiff’s objection to the motion on all other grounds upon which it was based. The defendant appealed from that ruling on September 6, 2011. While the appeal was pending, the parties’ litigation continued in the trial court. The seeds of this appeal were sown on September 13, 2011, when the defendant filed a motion for contempt, alleging that the plaintiff had ‘‘refuse[d] to provide reasonable support to and for the parties’ children for support expenses such as clothing, necessities . . . personal transportation . . . grooming, etc.’’ Four months later, on January 25, 2012, the defendant filed another motion to modify alimony and child support. The second motion to modify was based on three grounds: (1) the parties’ three children had reached the age of majority and were no longer residing with the plaintiff; (2) the defendant was paying for the adult children’s college expenses;[5] and (3) the defendant was experiencing a ‘‘downturn in [his] financial circumstances.’’[6] The defendant asked the court, on those grounds, either to reduce or to terminate his financial ‘‘obligations to the plaintiff . . . .’’ The plaintiff was served with the second motion to modify on February 9, 2012. The plaintiff objected to this motion and, on June 14, 2012, filed a motion for contempt, alleging, inter alia, that the defendant was nine months (October, 2011 through June, 2012) in arrears in making his $20, 000 monthly payments.

The court, Schofield, J., held multiple hearings between October and December of 2012 to resolve the following motions: (1) the defendant’s motion for contempt filed on September 13, 2011; (2) the defendant’s motion to modify alimony and child support filed on January 25, 2012; and (3) the plaintiff’s motion for contempt filed on June 14, 2012. Before Judge Schofield ruled on the motions, this court published its decision reversing Judge Wenzel’s ruling.[7] In that year, following this court’s decision, the court, Schofield, J., issued three decisions addressing these motions.

With respect to the first decision, the court’s first memorandum of decision was issued on July 16, 2013, addressing all three motions before the court. In that decision, the court made the following findings: (1) the parties’ three children had reached the age of majority; (2) the children were no longer living with either parent; (3) the defendant, pursuant to the agreement, was paying for the three children’s college expenses; and (4) the alleged downturn in the defendant’s ‘‘financial circumstances [was] speculative, and uncorroborated, indeed contradicted, by [the evidence presented].’’ As to the third finding, the court credited the defendant’s testimony that when he started paying for the children’s college expenses, he believed that the amount of his unallocated alimony and support payment would be reduced. Nonetheless, the court noted that the agreement did not provide for such a reduction; thus, it ruled that the defendant could not ‘‘now claim that the costs of college expenses are a basis for modification.’’ The court, however, also inserted a footnote stating that, ‘‘[u]nless, of course, those college expenses substantially changed [the defendant¬ís] financial circumstances.’’

The court granted the defendant’s second motion to modify alimony and child support that had been filed on January 25, 2012. Specifically, because ‘‘the children of the marriage [had] reached the age of majority, ’’ the court applied the child support and arrearage guidelines (guidelines), without specifying the effective year of those guidelines, to fashion a new financial order. Also, by apparently, but not explicitly, relying on the parties’ current financial affidavits, the court calculated the parties’ combined net weekly income to be $16, 850, which, pursuant to the undated guidelines and a ‘‘declining factor, given the income of the parties, ’’ resulted in a presumptive child support amount of $8862 per month. Accordingly, the court converted the unallocated alimony and child support into a periodic alimony order in the amount of $12, 000 per month, which was reached by reducing the defendant’s $20, 000 monthly obligation by $8000.[8] The modified alimony order was to become effective on July 16, 2013, the date of the court’s decision.

As to the parties’ respective motions for contempt, the court ruled in favor of the plaintiff on each. On the defendant’s motion for contempt, it found that the plaintiff was not in contempt. On the plaintiff’s motion, it found that the defendant was ‘‘in wilful and intentional violation of the court orders.’’ Upon finding the defendant in contempt, the court ordered him to pay the plaintiff $440, 000 in arrears for failing to meet his $20, 000 per month obligation for the twenty-two months from October, 2011, through July, 2013. Additionally, the court ordered the defendant to pay the plaintiff’s attorney’s fees and costs, totaling $41, 016.18. In response to this decision, both parties filed several motions. The plaintiff filed a ‘‘motion to clarify and/ or articulate’’ and a ‘‘motion to reopen and reargue decision.’’ The defendant also filed a motion to reargue.

With respect to the second decision, after the court held a hearing on the plaintiff’s motion to clarify and/ or articulate and the defendant’s motion to reargue in October, 2013, it issued its second memorandum of decision on February 18, 2014. The court clarified its prior calculation of the presumptive child support amount, explaining that because the parties’ combined net weekly income was $17, 039.30[9] and applying the guidelines with ‘‘a presumptive declining factor, ’’ the resulting presumptive child support amount for three children was $2061 per week ($687 per child) or $8862 per month.[10] Accordingly, the court ordered the ‘‘unallocated alimony to be reduced by the sum of $2061 per week retroactive to the [date of] service of the motion for modification.’’ In other words, the court reduced the defendant’s monthly financial obligation to the plaintiff from $20, 000 to $11, 138 per month, retroactive to the date of service.[11] Then the court stated to the contrary without further elaboration: ‘‘In its [July, 2013 memorandum of decision], the court incorrectly declined to award retroactivity to the date of majority. The court now corrects that error.’’ The court did not specify which date of majority it intended to use, i.e., the date of majority of the son or that of the daughters.

The court’s second memorandum of decision also explained other aspects of its first order. Pertinent to this appeal, the court changed its stance on the issue of college expenses. The court, ‘‘upon review of the [agreement] and its provisions for modification, ’’ concluded that college expenses could be a ‘‘basis for modification.’’ Therefore, the court concluded that $32, 000 per month of college expenses constituted ‘‘a substantial change in circumstances justifying a reexamination of the parties’ financial circumstances pursuant to [General Statutes § 46b-82] and Borkowski v. Borkowski, 228 Conn. 729, 739, 638 A.2d 1060 (1994).’’ The court, then, concluded that ‘‘alimony payments should not terminate [but will] . . . be adjusted by a reduction in child support.’’ The court iterated that the defendant’s monthly financial obligation to the plaintiff would be set at $11, 138 per month. See footnote 11 of this opinion.

The court also addressed its previous contempt order. It asserted that the defendant was in contempt but adjusted its previous ruling as follows: ‘‘[T]he court orders that the arrearage which must be recalculated to reflect the current arrearage accruing since December, 2012, as modified with retroactivity.’’ The court did not elaborate any further, but it did affirm its previous order that the defendant pay the plaintiff’s attorney’s fees and costs. In response to the court’s second memorandum of decision, the plaintiff filed a motion to reopen, clarify and reargue, to which the defendant objected.

With respect to the third decision, on August 29, 2014, after a hearing, the court issued a third memorandum on the plaintiff’s motion to reopen. The court again attempted therein to clarify how it had calculated the presumptive child support amount. The court determined that because the parties’ combined net weekly income was approximately $16, 900, the presumptive child support amount was $2600 per week pursuant to the guidelines effective August 1, 2005, as well as General Statutes § 46b-84 (d).[12] The court also articulated that it ‘‘had not consider[ed] college expenses as a basis for modification.’’ The court declined to articulate further as to the retroactivity of the modification order.

Finally, the court made two observations directed at the defendant’s previous arguments. First, the court rejected the defendant’s argument regarding the termination of the alimony award because the agreement limited the modification of alimony to specific events, and the court had no jurisdiction to terminate the alimony. Second, the court again stated that it did not consider college expenses because the defendant was obligated contractually to pay for those expenses. It did, however, reiterate that ‘‘if the college expenses significantly altered [the defendant’s] finances, that might be a basis for modification.’’

Faced with this difficult record, we briefly review the findings and conclusions that appear to be before us in this appeal. The court modified the $20, 000 per month unallocated alimony and support order to a periodic alimony order of $11, 138 per month. It is also clear that the court attempted to fashion this alimony order in its second memorandum of decision by calculating the presumptive child support amount attributable to the unallocated alimony and support order, and deducting that figure ($8862 per month) from $20, 000. The court arrived at the child support figure by reviewing the parties’ current financial affidavits, as presented at the 2012 hearings, and determining the parties’ combined net weekly income, then applying the 2005 guidelines with respect to three children and the statutory factors listed in § 46b-84 (d). Although the court acknowledged that the obligation to pay college expenses constituted a substantial change in the defendant’s circumstances, it did not consider his obligation to pay college expenses as a basis for modification of alimony. Therefore, the court justified its alimony order by analyzing the parties’ financial circumstances in light of the factors listed in § 46b-82 as well as Borkowski v. Borkowski, supra, 228 Conn. 729.

What is less clear is the effective date of the modification order and the amount of the arrearage owed to the plaintiff as a result of the contempt finding. The second memorandum of decision contains conflicting language as to the retroactivity of the newly fashioned alimony order, and the court declined to articulate its order. Moreover, although the court explicitly stated in its second ...


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