203 Conn.App. 300
Conn. App. Ct.2021Background
- Edward Berman and Ellen Berman divorced in 2013; their separation agreement (negotiated with counsel) required Edward to pay lifetime alimony ($6,500/mo, increasing to $8,000 after sale of a Vermont condominium), provide the defendant’s medical/dental insurance, and maintain $1 million term life insurance naming Ellen as beneficiary.
- The agreement allocated various debts and sale-related obligations to Edward; it did not contain express language showing an exchange of specific business or real-estate equity for lifetime alimony.
- By 2017 Edward’s income had fallen markedly from roughly $466,000 (2012) to about $151,000 (2017) after a Medicare investigation and related settlement; he filed a motion to modify alimony in August 2018 claiming a substantial income decrease.
- At the November 21, 2018 hearing both parties testified; Ellen was self-represented and made assertions during cross-examination and argument that she waived equity in the medical practice for alimony but she did not testify to or produce evidence supporting an actual exchange.
- The trial court denied the motion in part, finding (among other things) that Ellen had exchanged claims to real estate and business assets for lifetime alimony and medical coverage; the Appellate Court reversed, holding that the record contained no evidentiary basis for that factual finding and remanded for a new hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court correctly found defendant relinquished asset claims in exchange for lifetime alimony | Berman: No evidence or contract language supports a finding that Ellen gave up equity/assets for alimony | Ellen: She waived taking equity and accepted lesser alimony in exchange for lifetime support (asserted at hearing) | Reversed: finding was clearly erroneous—no testimony or documentary evidence showed an exchange and agreement contained no such term |
| Whether denial of modification was proper given court’s finding about exchanged claims | Berman: Court abused discretion by denying modification based on an unsupported factual premise | Ellen: Court properly considered the separation agreement as an interwoven "mosaic" and defendant’s need/waiver | Reversed: court implicitly found a substantial change in Edward’s finances but improperly relied on the erroneous exchange finding; remand for new hearing |
| Whether plaintiff’s income decline foreclosed modification | Berman: ~32% income decline justified modification or termination of alimony | Ellen: Her health and lack of other income justify maintaining alimony; mosaic of agreement should remain intact | Not decided on merits—appellate court did not reach this issue because remand was required for a new evidentiary hearing |
Key Cases Cited
- Callahan v. Callahan, 192 Conn. App. 634, 218 A.3d 655 (Conn. App. 2019) (standard of review for domestic-relations factual findings and abuse of discretion)
- Flood v. Flood, 199 Conn. App. 67, 234 A.3d 1076 (Conn. App. 2020) (explaining § 46b-86 modification framework)
- Brown v. Brown, 199 Conn. App. 134, 235 A.3d 555 (Conn. App. 2020) (condition precedent of proving substantial change before modification)
- Giordano v. Giordano, 200 Conn. App. 130, 238 A.3d 113 (Conn. App. 2020) (separation agreement construed as contract; intent from written language)
- Schade v. Schade, 110 Conn. App. 57, 954 A.2d 846 (Conn. App. 2008) (an implicit finding of substantial change can satisfy threshold predicate)
- Hall v. Hall, 182 Conn. App. 736, 191 A.3d 182 (Conn. App. 2018) (arguments and pro se assertions are not evidence)
- Lavy v. Lavy, 190 Conn. App. 186, 210 A.3d 98 (Conn. App. 2019) (arguments of counsel are not evidence)
- Steller v. Steller, 181 Conn. App. 581, 187 A.3d 1184 (Conn. App. 2018) (remand required where trial court’s decision rests in part on clearly erroneous findings)
- LeSueur v. LeSueur, 186 Conn. App. 431, 199 A.3d 1082 (Conn. App. 2018) (same principle on remand for new evidentiary hearing)