216 Conn.App. 782
Conn. App. Ct.2022Background
- Parties married in 1999; two children (both reached majority by judgment). Divorce trial in March 2020; judgment issued March 18, 2020 (Judge Trial Referee James G. Kenefick, Jr.).
- While dissolution was pending, parties entered a pendente lite stipulation (court-ordered) requiring plaintiff to make mortgage payments on the marital home; defendant later moved for contempt alleging missed payments.
- Both parties have pension/retirement benefits (defendant: state pension; plaintiff: city pension plus a 457(b)); parties agreed to split valuation costs but did not agree on an evaluator and presented no actuarial valuation at trial.
- Trial court awarded the marital home to defendant (defendant to refinance within two years or list for sale), ordered plaintiff to quitclaim and to transfer 75% of his 457(b) to defendant, ordered each party to retain their own pensions, and awarded defendant $250/week alimony for two years to assist refinancing.
- Trial court denied defendant’s contempt motions (found late mortgage payments but not wilful) and denied defendant’s request for attorney’s fees; defendant appealed, raising four principal claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Contempt for missed mortgage payments | Plaintiff: any late payments were not wilful; he made best efforts and testified about inability to pay timely at times | Defendant: court misapplied contempt standard by requiring proof of wilfulness and failed to shift burden to plaintiff to prove inability to comply | Court affirmed denial of contempt — movant failed to prove wilful noncompliance by clear & convincing evidence; burden did not shift to plaintiff |
| 2) Amount/duration of alimony ($250/wk for 2 years) | Plaintiff: award reasonable, tied to refinancing goal; court considered financial affidavits including overtime | Defendant: two-year limit arbitrary; court failed to consider §46b-82 factors and plaintiff’s overtime/earning capacity | Court affirmed — time-limited alimony permissible to bridge to refinancing, two years tied to court’s refinance order, court considered affidavits and statutory factors; use of actual income vs. earning capacity was within discretion |
| 3) Failure to value pensions and equalize distribution | Plaintiff: parties presented scant valuation evidence; court reasonably used present-division approach (each keeps own pension) and compensated via other assets (457(b), house, alimony) | Defendant: court improperly ignored pension values and should have equalized/divided pensions (or valued them) | Court affirmed — court did not exclude pensions from consideration, parties failed to provide present-value evidence, court permissibly assigned pensions to each party and balanced equities with other awards |
| 4) Denial of attorney’s fees | Plaintiff: each party able to pay own fees; denying fees does not undermine financial orders | Defendant: denial undermines other awards because she incurred substantial fees and lacks liquid funds | Court affirmed — trial court reasonably found defendant had sufficient resources (alimony, 457(b) transfer, employment, savings) and that denying fees would not undermine its financial scheme |
Key Cases Cited
- Puff v. Puff, 334 Conn. 341 (2020) (moving party must prove clear directive and wilful noncompliance by clear and convincing evidence to establish civil contempt)
- Eldridge v. Eldridge, 244 Conn. 523 (1998) (inability to obey court order without fault is a defense to contempt)
- Krafick v. Krafick, 234 Conn. 783 (1995) (pension valuation/distribution methods: present value, present division, reserved jurisdiction; present value requires actuarial proof)
- Bender v. Bender, 258 Conn. 733 (2001) (trial court discretion in pension valuation and distribution; present division favored when present value cannot be established)
- Bornemann v. Bornemann, 245 Conn. 508 (1998) (parties must provide valuation evidence; court not required to compensate for parties’ failure to present values)
- Mongillo v. Mongillo, 69 Conn. App. 472 (2002) (court need not make calculations to fill evidentiary gaps)
- Riccio v. Riccio, 183 Conn. App. 823 (2018) (mosaic approach to property division; court may order retention of pensions while compensating with other assets)
- Birkhold v. Birkhold, 343 Conn. 786 (2022) (reaffirming burden and standard for civil contempt)