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Dicker v. Dicker

Court of Appeals of Connecticut

April 16, 2019


          Argued December April 6, 2018

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Middlesex and tried to the court, Abrams, J.; judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the court, Albis, J., denied the parties' motions for contempt and issued a remedial order; subsequently, the court, Albis, J., issued an order regarding certain unreimbursed medical expenses; thereafter, the court, Albis, J., denied in part the plaintiff's motion to reargue, and the plaintiff appealed to this court; subsequently, the plaintiff filed an amended appeal. Affirmed.

          Lorna J. Dicker, self-represented, the appellant (plaintiff).

          Michael Dicker, self-represented, the appellee (defendant).

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


          PELLEGRINO, J.

         The plaintiff, Lorna J. Dicker, appeals from the judgment of the trial court, resolving several of the parties' postjudgment motions. On appeal, the plaintiff claims that the court improperly (1) found that the plaintiff owed sums to the defendant, Michael Dicker, for unreimbursed medical expenses for the parties' minor children, (2) found that the defendant was not in contempt of existing court orders, (3) concluded that the defendant could deduct unreimbursed medical costs from future quarterly activity fee payments that he owed to the plaintiff, and (4) denied the plaintiff's motion to reargue. The plaintiff also claims that the court violated her due process right to be heard on her motion for contempt. For the reasons set forth in this opinion, we disagree with the plaintiff and affirm the judgment of the trial court.

         The record discloses the following facts and procedural history. On March 29, 2012, the trial court, Abrams, J., dissolved the parties' marriage, incorporating into its judgment of dissolution the parties' agreement dated February 17, 2012. The agreement provided, inter alia, that the defendant would be responsible for the first $3720 incurred for their children's unreimbursed medical and dental expenses each year and that the parties would share equally in any such expenses that exceeded that amount.[1] As for the children's extracurricular activities, the agreement provided that the plaintiff would pay for such activities up to the sum of $1200 per year and that the parties, thereafter, would share any expenses in excess of that amount equally.[2]

         Thereafter, the parties filed numerous motions for contempt against each other for alleged failures to comply with the terms of their agreement. In an effort to resolve their disputes, the parties entered into two additional agreements. In an agreement dated May 27, 2014, the parties decided, inter alia, that they would reconcile, on a quarterly basis, their respective payments for the children's unreimbursed medical expenses. In a second agreement dated August 18, 2014, the parties settled their dispute with respect tovarious prior unreimbursed medical expenses. Each of these agreements was approved by the court and made an order of the court.

         On June 9, 2016, the plaintiff filed a motion for contempt, claiming that the defendant had wilfully underpaid the fees he owed for the children's extracurricular activities. See footnote 2 of this opinion. On September 23, 2016, the defendant also filed a motion for contempt, claiming that the plaintiff had failed to pay her agreed upon share of the children's unreimbursed medical expenses. The court, Albis, J., held hearings on November 3 and 23, 2016, with respect to the parties' motions.[3]On November 23, 2016, the court ruled that neither party could be held in contempt because each of them believed that he or she was entitled, under the court's previous orders, to withhold payment from the other as a result and to the extent of the other party's nonpayment of sums due to him or her.

         During that hearing, the court also issued a remedial order requiring, inter alia, that in the future the defendant provide the plaintiff with calculations sufficient to explain any amounts he claimed that she owed him under the previous orders. The order further provided that if the plaintiff disputed any amount so claimed and documented by the defendant, she was obligated to notify him of that dispute. The order finally provided that if any undisputed expense had not been paid to the defendant by the next due date, he could deduct that undisputed amount from a future installment of the children's extracurricular activity expenses that he then owed to the plaintiff. Critically, if the plaintiff disputed any amount, so claimed and documented by the defendant, she was prohibited from deducting that amount from any future payments she then owed to him until the dispute was resolved by the parties themselves or by the court. At the conclusion of that hearing, the court ordered the parties to attempt to reconcile the amounts they currently owed to one another, but also stated that a subsequent evidentiary hearing would be scheduled to determine those amounts if they were unable to reach an agreement.

         The parties could not reach an agreement regarding the amounts they owed one another for their children's extracurricular activities and medical expenses, and, therefore, the court held an evidentiary hearing to resolve those issues on March 28, 2017. At that hearing, the court ordered the parties to submit proposed orders by April 12, 2017. On May 9, 2017, the court filed a written memorandum of decision in which it found that for the period from August 18, 2014 to November 23, 2016, the defendant owed the plaintiff $3742.08 for extracurricular activity fees, while the plaintiff owed the defendant $2303.59 for unreimbursed medical expenses. As a result, the court ordered the defendant to pay the plaintiff $1438.49, the net difference between those unpaid sums.

         On June 7, 2017, the plaintiff filed a motion to reargue, asking the court to reconsider many of its findings and rulings on the parties' motions for contempt, including its decision not to hold the defendant in contempt and its method of calculating the amounts the parties owed to one another for their children's expenses. On June 28, 2017, the court issued its memorandum of decision denying the plaintiff's motion to reargue with respect to all issues except that of reimbursement for additional orthodontic expenses.[4] This appeal followed. Additional facts and procedural history will be set forth as necessary.


         The plaintiff first claims that the court erred in finding that she had violated its medical reimbursement order and in finding, on that basis, that she owed the defendant $2303.59. She further argues that the court erred in finding that the defendant's accounting summaries, as to amounts he had paid for the children's medical expenses, were credible. Specifically, the plaintiff argues that the numerical values listed by the defendant on his quarterly spreadsheets, which were submitted as evidence on the issue of unreimbursed medical expenses, were unsubstantiated by proper documentation. We disagree.

         ‘‘At the outset, we note that the court's factual determinations will not be overturned on appeal unless they are clearly erroneous. . . . As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. . . . 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.'' (Internal quotation marks omitted.) Chowdhury v. Masiat, 161 Conn.App. 314, 324, 128 A.3d 545 (2015).

         During the evidentiary hearing on March 28, 2017, the court heard lengthy testimony as to the amounts allegedly owed by each party to the other. The defendant testified that he had incurred medical expenses for his children's health care that had been paid directly either from his health savings account or by his insurance provider. He claimed that his health savings account, his insurance payment history and his spreadsheets summarizing his children's medical expenses corroborated one another. The plaintiff, who appeared with counsel, was able to cross-examine the defendant at length as to his accounting methods. Moreover, the court questioned the defendant on multiple occasions with respect to his accounting summaries and the other evidence of payments he had presented to the court.

         Before issuing its memorandum of decision, the court sought and received proposed orders from each party, which included suggested methods of calculation and summaries of expenses they wanted to have considered. In its revised memorandum of decision, the court addressed the discrepancies between the plaintiff's and the defendant's calculations, noting that many of those discrepancies arose from the parties' different accounting methods.[5] The court stated that the plaintiff interpre- ted its August 18, 2014 order, which provided that all unreimbursed payments owed at the time of the order had been reconciled, as an indication that the period for determining if the minimum annual threshold had been reached had been restarted. The court explained, however, that ‘‘the August 18, 2014 order does not preclude such prior expenses from being included in the calculation of the $3720 threshold for the calendar year 2014 . . . [and] [t]herefore, the expenses found to be incurred by the defendant during the remainder of 2014 were in excess of the . . . threshold [amount].'' The court also concluded that the language of its May, 2014 order supported the plaintiff's method of accounting, however, ‘‘[o]nly for the purpose of finding the amounts due at this time, the court adopts the approach of the defendant. It does so primarily because it finds, based on the credible testimony of the defendant, that all of his claimed expenses had been paid by him by the time of the [March 28, 2017] hearing.''[6] (Emphasis added.)

         Despite the plaintiff's repeated claim that the court erred in finding that the defendant's medical expense spreadsheet summaries were credible, our review of the record reveals that the court, instead, credited the defendant's testimony that he had, in fact, paid what he claimed to have paid before the March 28, 2017 hearing.[7] Because the court deduced that a number of the defendant's quarterly summaries included expenses that had been incurred and claimed in one quarter, but paid in another quarter, the defendant's testimony was found to have explained why there were discrepancies between his summaries and the documentation he presented to the court. Our review of the record indicates that during the March 28, 2017 hearing and on appeal, these discrepancies provided the basis for many of the plaintiff's claims that the defendant's accounting summaries were inaccurate.

         The plaintiff also argues, in addition to claiming that the court erred in its method of calculation, that expenses were listed in the defendant's medical expense summaries that are irreconcilable with the record. As proof of such a contradiction, the plaintiff directed the court's attention to the defendant's medical expense summary sheet and, specifically, to the entry labeled ‘‘[Daughter's] Root Canal'' for $506.30. The plaintiff claims that this entry is inaccurate, arguing that the reason the defendant could not provide any documentation of any payment or subsequent repayment of the expense was because she had paid for it. We do not agree with the plaintiff's resulting claim that the defendant's medical expense summaries are irreconcilable with the trial court record.

         Moreover, at the time the court issued its memorandum of decision, it was in possession of the parties' proposed orders relating to the amounts owed, along with explanations of how the parties believed the expenses should be calculated. It is clear that the court was well aware of the differing accounting approaches with respect to the calculation of amounts owed by both parties, which is clearly indicated and discussed in the court's memoranda of decision. After a thorough review of the record, including the parties' proposed calculations, the exhibits, and the hearing transcripts, we conclude that the ...

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