LORNA J. DICKER
v.
MICHAEL DICKER
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.
OPINION
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.
I
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 ...