Argued
January 10, 2019
Procedural
History
Action
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the court, Hon. Dennis F.
Harrigan, judge trial referee; judgment dissolving 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 modification of
child support, and the defendant appealed to this court,
which reversed the judgment and remanded the case for further
proceedings; subsequently, 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 defendant'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).
Keller, Elgo and Moll, Js.
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, Pasquale 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 substantial change in circumstances warranting the
modification 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 speculation by considering the defendant's
risk of developing future medical conditions, and (b) failed
to consider the totality of the parties' respective
financial circumstances; 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 relevant 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 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.[2] The agreement also contained 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 original.) 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 modify. 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 pending, the
defendant filed another motion to modify alimony 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 October, 2011 through June,
2012 (2012 motion for contempt). 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 decision
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
unallocated order was not subject to paragraph 3.2 of the
agreement that limited only the modification of alimony.
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 presumptive monthly amount of
child support for three children under the child support and
arrearage guidelines in effect in 2005. The court determined
that the modification order would be retroactive; however,
the court did not set forth clearly the effective date of the
modification order. In addition, the court concluded that it
lacked subject matter jurisdiction to consider the
defendant'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 arrearage 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.,
subtract 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, available in determining
the initial award. . . . Consequently, 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 pertaining to fashioning an
alimony order, if any.''[6] (Citations omitted; footnote
omitted; internal quotation marks omitted.) Id.,
171-74. Second, this court 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. 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 concluded 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 financial circumstances,
(2) the plaintiff sold her residence for a considerable sum
and relocated to a less costly residence, and (3) his health
had deteriorated significantly.
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 modify; (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. Second, the court granted the May, 2011
motion to modify, terminating the defendant's $3000
monthly child support 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 directions on remand, the court
ordered the defendant to pay $4680 in attorney's fees
pursuant to General Statutes § 46b-87. Sixth, the court
granted the 2014 motion to modify, as amended, reducing the
defendant's alimony 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 factors 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 application 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.
Specifically, the plaintiff asserts that the court (1)
improperly 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 determined 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 reduction of her
alimony award on the ground that the defendant paid the
college expenses was improper because the agreement required
the defendant to pay the college expenses and contained no
express ...