FATIMA K. DE ALMEIDA-KENNEDY
v.
JAMES KENNEDY
Argued
November 29, 2018
Procedural
History
Action
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield and tried to the court, Gould,
J.; judgment dissolving the marriage and granting
certain other relief; thereafter, the court, Wenzel,
J., granted in part and denied in part the
defendant's motion for modification of alimony and child
support, and the defendant appealed to this court;
subsequently, the court, Wenzel, J.,
granted the plaintiff's motion for clarification and
motion for attorney's fees pending appeal, and the
defendant filed amended appeals with this court. Reversed
in part; judgment directed.
James
Kennedy, self-represented, the appellant (defendant).
J.
David Griffin, for the appellee (plaintiff).
Lavine, Sheldon and Elgo, Js.
OPINION
ELGO,
J.
In this
postdissolution marital dispute, the defendant, James
Kennedy, appeals from the judgment of the trial court in
connection with certain postjudgment orders entered in favor
of the plaintiff, Fatima K. De Almeida-Kennedy. On appeal,
the defendant claims that the court improperly (1) denied in
part his motion for modification, (2) granted in part the
plaintiff's motion for clarification, in which she
requested, inter alia, that the court address her prior
motion for attorney's fees, and (3) granted the
plaintiff's motion for attorney's fees and expenses
pending appeal. We reverse the judgment of the trial court
with respect to the defendant's second claim but affirm
the judgment in all other respects.
The
following facts and procedural history are relevant to this
appeal. The marriage between the parties was dissolved on
August 2, 2010. The judgment of dissolution incorporated the
parties' separation agreement, which provided, inter
alia, that the defendant would pay the plaintiff $1000 per
week in unallocated alimony and child support. On December 9,
2014, that judgment was modified by agreement of the parties
to provide, inter alia, that the defendant would pay the
plaintiff $900 per week in unallocated alimony and child
support.
On
December 28, 2015, the defendant filed the present motion for
modification in which he requested, inter alia, that his
unallocated alimony and child support obligation be
modified.[1] On May 12, 2017, the plaintiff filed a
motion for attorney's fees, asking the court to order the
defendant to pay her attorney's fees incurred defending
the defendant's motion for modification. The court
received evidence on both motions in a trial held over the
course of several days beginning on July 24, 2017, and
concluding on August 2, 2017. By order dated September 29,
2017, the court granted in part and denied in part the
defendant's motion for modification. Relevant to this
appeal, the court denied the defendant's request to
modify his unallocated alimony and child support
obligation.[2]
The
defendant filed the present appeal on October 27, 2017. On
October 30, 2017, the plaintiff filed a motion for
clarification as to the trial court's September 29, 2017
ruling, requesting, inter alia, that the trial court issue a
ruling on her May 12, 2017 motion for attorney's fees. At
the same time, the plaintiff also filed a motion for
attorney's fees and expenses pending appeal. On November
16, 2017, the trial court held a hearing, which the defendant
did not attend, on the plaintiff's motion for
clarification and motion for attorney's fees and expenses
pending appeal. On that same date, the court (1) granted in
part the plaintiff's motion for clarification, ordering
the defendant ‘‘to pay the sum of $11, 250 to
plaintiff's counsel as a sanction for bringing a baseless
motion, '' and (2) granted the plaintiff's motion
for attorney's fees and expenses pending appeal, ordering
the defendant to pay ‘‘an advance of $10, 000 as
a retainer to be applied with regard to the appeal from the
court's order.'' Subsequently, the defendant
filed two new appeals from the court's November 16, 2017
orders, which, pursuant to Practice Book § 61-9, we have
treated as amendments to the defendant's original appeal.
Additional facts will be set forth as necessary.
I
The
defendant first claims that the court improperly denied in
part his motion for modification by rejecting his request to
modify his unallocated alimony and child support obligation.
We disagree.
We
begin by noting that ‘‘[t]he well settled
standard of review in domestic relations cases is that this
court will not disturb trial court orders unless the trial
court has abused its legal discretion or its findings have no
reasonable basis in the facts. . . . As has often been
explained, the foundation for this standard is that the trial
court is in a clearly advantageous position to assess the
personal factors significant to a domestic relations case. .
. . 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. . . . Notwithstanding the great deference accorded
the trial court in dissolution proceedings, a trial
court's ruling . . . may be reversed if, in the exercise
of its discretion, the trial court applies the wrong standard
of law.'' (Citations omitted; internal quotation
marks omitted.) Gabriel v. Gabriel, 324
Conn. 324, 336, 152 A.3d 1230 (2016).
The
defendant claims that the trial court abused its discretion
by (1) ordering the unallocated alimony and child support
amount of $900 to continue without making findings under the
child support guidelines, (2) concluding that the defendant
admitted there was no change in circumstances, and (3)
concluding that there was insufficient evidence of a change
of circumstances to justify modification. We address each
claim in turn.
A
The
defendant claims that the court abused its discretion by
ordering that his current obligation to pay unallocated
alimony and child support be continued without making
findings under the child support guidelines. He claims that
his request to modify his unallocated alimony and child
support obligation automatically triggers the court's
duty to make specific findings pursuant to the child support
guidelines, even if he made no such request. We disagree.
‘‘[Section]
46b-86 governs the modification of [an unallocated alimony
and] child support order after the date of a dissolution
judgment. . . . Section 46b-86 (a)[3] permits the court to modify
[unallocated alimony and] child support orders in two
alternative circumstances. Pursuant to this statute, a court
may not modify [an unallocated alimony and] child support
order unless there is first either (1) a showing of a
substantial change in the circumstances of either party or
(2) a showing that the final order for child support
substantially deviates from the child support guidelines . .
. .'' (Citation omitted; footnote added; footnote
omitted; internal quotation marks omitted.) Weinstein
v. Weinstein, 104 Conn.App. 482, 491-92, 934
A.2d 306 (2007), cert. denied, 285 Conn. 911, 942 A.2d 472
(2008).
In
support of his request to modify his unallocated alimony and
child support obligation, the defendant did not specifically
allege either a substantial change in circumstances or that
the December 9, 2014 order imposing that obligation
substantially deviated from the child support guidelines. See
footnote 1 of this opinion. The court read the
defendant's request as seeking a modification of his
unallocated alimony and child support obligation on the basis
of a change in legal or physical custody and, in closing
argument, the defendant specifically stated thathe was
‘‘requesting financial modifications due to a
substantial change in circum-stance.''[4]
On the
basis of our review of the record, we conclude that the
defendant never raised before the trial court his claim that
his unallocated alimony and child support obligation
substantially deviated from the child support
guidelines.[5] ‘‘It is well established that
an appellate court is under no obligation to consider a claim
that is not distinctly raised at the trial level. . . .
[B]ecause our review is limited to matters in the record, we
[also] will not address issues not decided by the trial
court. . . . The requirement that [a] claim be raised
distinctly means that it must be so stated as to bring to the
attention of the court the precise matter on which
its decision is being asked. . . . The reason for the rule is
obvious: to permit a party to raise a claim on appeal that
has not been raised at trial-after it is too late for the
trial court . . . to address the claim-would encourage trial
by ambuscade, which is unfair to both the trial court and the
opposing party. . . . It therefore follows that [a] party
cannot present a case to the trial court on one theory and
then seek appellate relief on a different one . . .
.'' (Citations omitted; emphasis in original;
internal quotation marks omitted.)Corrarino
v.Corrar-ino, 121 Conn.App. 22, 29-30, 993 A.2d
486 (2010).
The
defendant argues that ‘‘[t]he court had a duty to
review the prior record and apply due diligence in making the
required determination [under the child support guidelines],
even if ...