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Malpeso v. Malpeso

Court of Appeals of Connecticut

April 30, 2019

CHARLOTTE MALPESO
v.
PASQUALE MALPESO

          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 ...


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