David McGrath presents Case Law Update to Connecticut Bar Association Family Law Section
Case Law Update for
CBA Family Law Section Meeting on November 14, 2017
By David McGrath, Esq.
Robert Katz, Esq.
W. Bruce Louden, Esq.
Louden, Katz & McGrath, LLC
638 Prospect Avenue
Hartford, CT 06119
Phone: (860) 231-7150
Covering family law Supreme and Appellate Court cases with advance release dates
from October 11, 2017, through November 13, 2017.
I. CONNECTICUT SUPREME COURT CASES
A. In Re Elianah T.-T, 327 Conn. 912 (2017)
This is a juvenile case with a tangential connection to family law. The issue of the underlying case concerns DCF’s authority to vaccinate children in its care over the objections of the children’s parents. However, the issue on this appeal was whether DCF was permitted to bring in a new theory of the case once the case was on appeal before the Supreme Court. The Court had previously ruled in In re Elianah T.-T., 326 Conn. 614 (2017) that Conn. Gen. Stat. § 17a-10 (c) did not authorize the petitioner, the Commissioner of Children and Families … to vaccinate a child placed in her temporary custody over the objection of that child’s parents …”
The Supreme Court granted the motion for reconsideration but denied the relief and would not allow a second bite, stating “[a]s this argument was not previously advanced to this court, we grant the motion for reconsideration, but deny the relief requested.” The Supreme Court went on state that “[a]lthough a motion for reconsideration may be appropriate when a party contends that the court did not address one or more of its arguments or that there has been some mistake in the opinion, it is not proper to use such a motion simply as a means for giving the losing party a second chance to try a new argument.”
II. CONNECTICUT APPELLATE COURT CASES
A. Bruno v. Bruno, ___ Conn.App. ___ (2017) (no petition for cert. filed to date)
The dissolution decree was entered after trial in March 2008, following a 21-year marriage. Husband was ordered to (a) pay $4,000 per week in alimony, (b) transfer part of his Schwab account to Wife, and (c) cooperate in the sale of marital property in Ridgefield.
Four months after the decree, Husband moved to modify alimony, and alimony was reduced in June 2009. Husband appealed, apparently because the reduction was deemed inadequate, and Wife cross-appealed (which she withdrew in August 2009). The Appellate Court dismissed Husband’s prior appeal on the basis of his “continuous contemptuous conduct,” and remanded the case to the trial court with specific direction to deny the motion for modification.
Wife filed a motion for contempt based on Husband’s failure to distribute her share of the Schwab account, and that motion was granted in June 2010. Following a hearing, the Trial Court set an August 2009 date for valuing Wife’s portion of the Schwab account and awarded her interest from August 2009. Wife appealed the date selected for valuing her portion in the Schwab account and the Appellate Court reversed the Trial Court and remanded with direction to value the account at the date of dissolution.
We then fast forward from 2009 to January 2014, when a hearing finally was set concerning an alimony arrearage and division of the Schwab account. After “multiple hearings,” in October 2015 the Trial Court awarded post-judgment interest at 4%, and set dates concerning when interest would run on the Schwab account and alimony arrearage. Wife filed a motion to reargue, which was granted, but relief then denied.
Wife filed a motion for order in August 2010, seeking assignment of Husband’s interest of Husband in the Ridgefield property. The Trial Court ordered assignment of the interest of Husband to Wife, provided that, upon any sale, Wife was to hold sale proceeds in excess of $300,000 in escrow. Thereafter, Wife sold the property for $3,700,000, netting $1,900,000 and failed to place the proceeds in escrow. Husband filed a motion for contempt.
The first issue on appeal was whether the Trial Court exceeded the specific direction of the Appellate Court in its remand by vacating awards of post-judgment interest awarded in connection with the alimony arrearage and Schwab account. On remand, the Appellate Court had directed that the Trial Court vacate modification of alimony and change the date of valuation of Wife’s portion of the Schwab account.
Determining the scope of a remand is a matter of law requiring the Trial Court to interpret the higher court’s mandate, “akin to determining subject matter jurisdiction.” However, the Trial Court “is limited to the specific direction of the mandate as interpreted.” When a Judgment is set aside on appeal, its effect is entirely vacated and “the parties are in the same condition as before it was rendered.” The Appellate Court determined that the vacating of the alimony modification and valuation of Wife’s portion of the Schwab account were inextricably linked to the interest awarded in connection with each and thus the Trial Court properly vacated the post-judgment interest awards.
The second issue on appeal concerned the Trial Court’s establishing a 4% interest order, instead of 10% statutory interest as well as the dates from which interest was calculated. The Appellate Court reviewed using the abuse of discretion standard and cited Conn Gen. Stat. § 37-3a, stating at the outset that, while interest “may” be recovered on money awarded in a civil action once it has become payable per the court’s judgment, it is not required. The two questions that must be answered in establishing interest are whether an amount is detained and whether the detention is wrongful under the circumstances.
Wife argued that the Trial Court erred in ordering that interest run from the date the Schwab account was ultimately valued, which did not occur until after substantial litigation, and further erred in ordering that interest run on the alimony from April 2014 on the basis of the total alimony arrearage rather than awarding interest individually on each of the missed weekly payments from the dates they were missed, thus denying her the benefit of compound interest.
The Appellate Court found noted that § 37-3a, unlike § 37-3b, contains no requirement that interest be computed from the date of judgment or twenty-one days thereafter. Thus, while “an earlier date may have been within the court’s discretion” the selection of the valuation date of Wife’s interest in the Schwab account was not error. Further, the Appellate Court noted that there is no requirement in § 37-3a for compounding interest. The Appellate Court found that the Trial Court had broad discretion in determining the interest to award and had not abused it.
Wife’s last argument as to interest was that the Trial Court erred in using a 4% rate rather than 10%. The Appellate Court made relatively short work of this argument stating that under § 37-3a “the court may award a maximum rate of interest of 10 percent per year, but it has discretion to apply a lesser rate.” The Appellate Court found that the Trial Court appropriately considered the facts of the case and the fall in interest rates in recent years.
The third and final issue on appeal was whether Wife was improperly held in contempt for violating the order regarding holding net proceeds in excess of $300,000 from the sale of the marital residence in escrow. The Appellate Court again upheld the Trial Court’s decision.
Wife argued that the order was not clear and unambiguous because the Trial Court issued a written order that did not mention holding the proceeds in escrow. The Appellate Court noted that the Trial Court had issued “a clear oral order instructing the defendant to hold any proceeds of the sale in escrow” and had warned the parties that the written orders “did not represent the entirety of its oral orders” and that Wife did not thereafter request a written copy encompassing the entire order.
Lastly, Wife argued that Husband’s unclean hands as to the issue of the sale of the residence should have precluded her being found in contempt. The Appellate Court noted that “unclean hands” is applied within the discretion of the Trial Court and that the Trial Court had taken such into consideration into account in rendering no punishment other than the finding of contempt itself.
B. Garvey v. Valencis, ___ Conn.App. ___ (2017) (no petition for cert. filed to date)
Mother appealed a judgment sustaining an emergency ex parte order which denied mother access with the parties’ minor child. The parties were never married. Custody, support and visitation had been litigated throughout the child’s life. Father had retained sole legal and primary physical custody since 2005. At the time of the filing of the underlying ex parte motion, the child was twelve years old. A GAL had been previously appointed for the minor child.
On May 10, 2015, a physical altercation occurred between the child and Mother during Mother’s access in her home. The child telephoned Father during the disturbance and both Father and the GAL overheard a portion of the altercation on that call. The police interviewed the child following the incident and determined that the access could not continue in a civil manner at that time.
On May 12, 2015, Father filed a motion for an emergency ex parte order of custody pursuant to Conn. Gen. Stat. § 46b-56f. The Trial Court found “that an immediate and present risk of physical or psychological harm to the child existed,” entered orders suspending Mother’s access and denying her any contact with the child, and scheduled a hearing for nine days later. The hearing was conducted over four days on May 21, June 16, June 24, and September 1 of 2015.
The Appellate Court ordered the Trial Court to articulate the factual basis for the conclusion that an immediate risk to the child existed and the Trial Court articulated a number of bases including the child’s statements, child’s desire not to see Mother, child’s psychological condition, therapist’s recommendations and academic regression.
Mother first claimed that the Trial Court violated 46b-56f(c), by refusing her an opportunity to be heard prior to the entry of the ex parte order, in light of the fact that she was available, wanted to participate and was physically in the courthouse when the ex parte was entered. The Appellate Court held that 46b-56f does not require the Trial Court to allow the respondent to be heard prior to entering ex parte relief, only requiring that the applicant submit an affidavit that states, inter alia, the actions taken to notify respondent or reason why those actions were not taken and that the court order a hearing on the application.
Mother’s second claim was that 46b-56f(c) mandates that the hearing be completed within fourteen days of the issuing of the ex parte order. The Appellate Court held that the hearing need only be scheduled within fourteen days, not completed within that time, finding that the statute was plain and unambiguous and noting that the statute provides for “postponement and continuance under certain conditions.”
Mother’s third claim was that the Trial Court’s ex parte order “expired ‘automatically’ after thirty days pursuant to Practice Book § 4-5” and that the Trial Court lost jurisdiction over the ex parte application after such time. Practice Book § 4-5 (b) states that “[w]hen an application for a temporary injunction is granted without … a hearing, the court shall schedule an expeditious hearing as to whether the temporary injunction should remain in effect. Any temporary injunction which was granted without a hearing shall automatically expire thirty days following its issuance, unless the court, following a hearing, determines that said injunction should remain in effect.” This is, practically speaking, an extension of Mother’s second claim, arguing that failure to complete the hearing within a specific time frame was in error. The Appellate Court noted that 46b-56(c) provides fourteen days for a hearing but that ex parte orders may be continued by order of the court “for good cause shown.” The Appellate Court further found that a substantial portion of the delay was due to accommodation of Mother’s own witnesses. Of more importance to the family practitioner, the Appellate Court also noted in so holding, that Mother did not “object” to the continuations of the orders, despite the fact that her counsel did ask for those orders to be removed at the end of multiple of the days of trial.
Mother’s fourth claim was that the Trial Court violated her constitutional right to due process under the Fourteenth Amendment, arguing that “a postdeprivation hearing spanning 112 days following the entry of an ex parte emergency order is unreasonable, and that § 46b-56f (c) should be invalidated as applied to the facts of her case.” The Appellate Court noted that the due process clause “demands that an individual be afforded adequate notice and a reasonable opportunity to be heard when the government deprives her of a protected liberty interest” but that “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” The Appellate Court found, again, that a substantial portion of the delay was due to Mother’s own actions in calling witnesses out of order, introducing testimony of extraneous events and filing numerous additional motions that needed to be addressed. The Appellate Court once again found that Mother failed to object to the length of the hearing and “agreed to the dates upon which the hearing was scheduled.” The suggestion here is that a family practitioner must formally object to the continuance and somehow not agree to dates upon which the hearing is scheduled. The Appellate Court did not opine on what facts would cause a delay to become a constitutional violation, only finding that this was not such a violation.
Mother’s final claim was that the Trial Court “lacked sufficient evidence to support its finding that an immediate and present risk of psychological harm to the child existed, pursuant to § 46b-56f.” Mother argued that psychological harm under the statute required a greater showing including testimony of a mental health expert or neutral fact witness. The Appellate Court noted that there are no explicit criteria for psychological harm under the 46b-56fh, that the standard of proof is the standard fair preponderance of the evidence and found that there were ample facts to support the Trial Court’s conclusion.
C. Ray v. Ray, ___ Conn.App. ___ (2017) (no petition for cert. filed to date)
The Trial Court entered an unallocated order of alimony and child support at the dissolution. Subsequently, the alimony portion terminated per the original order. Defendant Father subsequently filed a motion for order to establish a child support order upon termination of the unallocated order.
A full post-judgment hearing was held. The combined net weekly income of the parties was found to be approximately $6,000. In its decision, the Trial Court stated: “it had considered all the evidence…” The Trial Court ordered that Defendant Father pay $288 per week for child support which was the maximum amount on the Child Support Guidelines chart -- $288 representing the Defendant Father’s percentage of the highest amount on the chart. Defendant Father also received supplemental income. No supplemental order was entered regarding any portion of Defendant Father’s bonus.
The Trial Court did not extend beyond the Child Support Guidelines chart to take into account any income of the parties beyond the $4,000 maximum the chart. The Trial Court also did not enter a supplemental order regarding any percentage of the Defendant Father’s bonuses as additional child support. Plaintiff Mother filed a motion for reargument which was heard by the Trial Court but the decision remained in effect.
The Appellate Court included the typical language regarding the standard of review. Unless the Trial Court has abused its discretion or it is found that the Court could not reasonably conclude as it did, based on the facts presented, the Trial Court’s decision will stand. Defendant Father sought to argue that the record was inadequate for review due to Plaintiff Mother’s failure to comply with portions of the practice book. The Appellate Court considered the argument, found some deficiencies in the appeal presentation, but found there was a sufficient record for appeal and extended some flexibility to Plaintiff Mother.
Plaintiff Mother’s first claim was that the Trial Court did not make a finding regarding Defendant Father’s net income. The Appellate Court indicated “the Trial Court is not required to make an explicit finding of net income, and not required to make specific reference to the criteria it considered”. As long as the Trial Court stated it had “taken all of the evidence into account…” this was enough where the Trial Court had referenced the guideline worksheet’s indication of net incomes.
Plaintiff Mother’s second claim is that the Trial Court relied on an unsworn Child Support Guidelines Worksheet prepared by the Family Relations Officer to make findings as regarding the parties’ gross and net incomes which were contrary to the evidence. Plaintiff Mother further claimed that the Trial Court should not have considered the worksheet without first admitting it into evidence. The Appellate Court determined that Plaintiff Mother had failed to make such an objection prior to the appeal and declined to review the claim.
Plaintiff Mother’s third claim was that the Trial Court was required to make supplemental order because the Defendant Father earned bonuses. The Appellate Court indicated that there is no such requirement and using the presumptive maximum amount from the guidelines was legally proper. The Appellate Court reiterated the standard from the line of cases including Maturo v. Maturo, 296 Conn 80 (2010), Misthopoulos v. Misthopoulos, 297 Conn. 358 (2010) and Dowling v. Szymszak, 309 Conn. 190 (2013) for the floor and ceiling on support where the incomes exceed the guidelines as well as application of deviation criteria.
Because the Court ordered the maximum based on the combined net incomes at the maximum of the Child Support Guidelines chart of $4,000, there was no obligation for the Court to make any further order. The Appellate Court found that there was no requirement of the Trial Court to extend the Child Support Guidelines percentages or the amount of net disposable income that it is considering.
The Appellate Court found that Plaintiff Mother had failed to carry her burden to prove that the presumptive floor would be inappropriate or inequitable or to justify a higher amount. The lesson here is that Plaintiff Mother focused on Defendant Father’s income at the expense of presenting evidence on the need of the child.
Plaintiff Mother’s final claim was that the Trial Court erred in denying relief on her motion to reargue. The Appellate Court opined that motions to reargue are: (1) not intended for a second bite, (2) not a time for additional cases or briefs to be entered, (3) during reargument the Court should only consider evidence that could not have been discovered earlier, (4) a motion to reargue is not to be used because the self-represented party did not present her case “clearly.” Plaintiff Mother’s efforts at reargument were to make legal arguments that certain facts about Defendant Father’s income were not presented clearly at the hearing. The Appellate Court determined that this was “an improper use of a motion to reargue” and the Trial Court did not abuse its discretion.
D. Spencer v. Spencer, ___ Conn.App. ___ (2017) (no petition for cert. filed to date)
A dissolution decree was entered by agreement in April 2011. Husband was ordered to pay $5,000 per month in alimony until the death of either party, the cohabitation of Wife, or April 2017, whichever occurred first. Within a few months after the decree, Husband had fallen behind on his alimony payments and Wife filed a motion for contempt in August 2011. Wife filed another such motion in October 2011, alleging an arrearage of $22,000. The parties stipulated to such in January 2013, payable at a rate of $750 per month toward the arrearage and continuing the underlying monthly alimony of $5,000 unmodified.
In May 2013 and April 2014, Wife filed further motions for contempt. The Appellate Court stated that it was unclear concerning whether Wife prosecuted either the May 2013 or April 2014 motions. In September 2014 Wife filed her third motion for contempt since May 2013, alleging an arrearage of $91,700. Again, it was unclear whether she ever had prosecuted this motion, as there had been no hearing on it (or on the motions from 2013). Finally, in November 2014, Wife again filed and alleged an arrearage of $94,000. Meanwhile, Husband filed his own motion to modify in July 2013, alleging a decline in his income. Husband filed an additional motion in October 2013, alleging that Wife was cohabitating with her boyfriend.
Wife’s November 2014 motion for contempt and Husband’s amended motion for modification of October 2013 were consolidated and heard in January 2015. The Trial Court granted Husband’s motion terminating his alimony, effective October 2013 on the basis of Wife’s cohabitation, granted Husband’s motion modifying alimony but only for the month preceding termination and only from $5,000 to $4,000, and denied Wife’s motion for contempt. The Trial Court did find an arrearage of $31,500, payable at a rate of $1,500 per month.
At the hearing, Wife admitted moving into her boyfriend’s apartment as of October 1, 2013, testifying that she and boyfriend shared equally the cost of rent and utilities. Wife’s lawyer conceded that the so-called “cohabitation statute,” 46b-86, should apply, but argued that the dissolution decree provided that cohabitation had to involve “a romantic or sexual component,” and that Husband presented no evidence of such.
The Appellate Court gave a thorough discussion of § 46b-86, stating that the word “cohabitation” was not used in that statute and that there was a broader phrase used, “living with another person.” The Court noted further that, in 1978, the General Assembly added financial consequences to 46b-86, some five years after the original enactment of that statute, to the effect that the living arrangement must alter the needs of the alimony recipient. The Appellate Court grounded its ruling on the Supreme Court case of DeMaria v. DeMaria, 247 Conn. 719 (1999), holding that the statutory definition of cohabitation would apply even when the dissolution decree failed to incorporate that definition. The Appellate Court held further that Husband was not obligated to prove a romantic or sexual relationship, because there are only two elements to § 46b-86 (living together and financial impact of such).
Despite applying the definitional aspect of § 46b-86, the Appellate Court held it was proper to look to the specific remedy for cohabitation outlined in the decree, which was termination in this case. The language of the decree specifically stated that alimony would terminate automatically and via self-execution upon cohabitation. Thus, the Appellate Court upheld the Trial Court’s decision that alimony be terminated, based on Wife’s admission of cohabitation and the contribution of boyfriend to her household expenses meeting the statutory definition of cohabitation coupled with the language of the Judgment providing for alimony termination which was automatic and self-executing upon cohabitation.
Counsel for Wife also creatively alleged that Husband had “unclean hands,” because his nonpayment of alimony forced Wife to cohabitate. The Trial Court found that, by the time Wife began cohabitation, Husband had paid $115,000 of his $144,000 obligation, having had to take a loan on his 401(k) and using checking overdrafts to make payments. The Appellate Court stated that proof of unclean hands required willful misconduct, the same as in a contempt proceeding. Essentially, where Wife failed to show willfulness for contempt, she could not show unclean hands. The Appellate Court reiterated the classic point that, in domestic relations cases, “allowance must be given to every reasonable presumption in favor of the correctness of the trial court’s action.”
The Court reiterated the two-step process for modification, a substantial change in circumstances and then applying the financial provisions of the alimony statute, § 46b-82. The current circumstances must be compared with the circumstances at the time of the last court order. However, the Court cited DeMartino v. DeMartino, 79 Conn. App. 488 (2003), for the proposition that if “a post judgment order merely reaffirms the dissolution judgment’s original alimony order … the court must compare the current conditions to the conditions existing at the time of the dissolution Judgment.” Thus, given that the post-judgment stipulation here reaffirmed the original order, it was proper for the Trial Court to compare the current circumstances with those that existed at the original dissolution.
The Trial Court found that Husband had an income of $10,000 per month at the time of the dissolution, in 2011, and that his income had declined to $7,000 per month, as of the cohabitation in 2013. In getting further guidance on what constitutes a substantial change, the Court alluded to Arena v. Arena, 92 Conn.App. 463 (2005), where a substantial change in circumstances was found when the obligor’s annual income had decreased from $200,000 to $145,000. The Appellate Court rejected Wife’s abuse of discretion claim regarding the modification of alimony.
Wife claimed that the Trial Court erred by excluding relevant testimony as to neglect or culpable conduct. Specifically, in upholding an objection to a question as to whether Husband had done a Google search regarding the right of his business partner to force a change in their partnership. The Appellate Court found that the Trial Court did not err in that any evidence derived from such a question would have been duplicative and there was no demonstration that the exclusion was harmful.
Finally, Wife claimed that the Trial Court abused its discretion by not holding Husband in contempt for non-payment of alimony. The Appellate Court found that the Trial Court was well within its discretion given the substantial evidence of Husband’s inability to pay, failure to meet other obligations and efforts to make payments by cashing out retirement assets.
The Trial Court’s decision was affirmed in all aspects.