209 Conn.App. 165
Conn. App. Ct.2021Background
- Parties married in 2003; five minor children; litigation commenced 2018 and tried to the court in Dec. 2019.
- Defendant is a self-employed residential contractor with inconsistent tax filings (2013–2017 filed late), incurring penalties and interest; trial court found his income testimony evasive.
- Trial court imputed the defendant a net earning capacity of $101,000 per year based on tax returns and other evidence.
- Court awarded child support of $477/week, periodic alimony to plaintiff of $1,000/week for ten years (payments to begin when plaintiff vacates the marital residence; $280/week until then), and made alimony nonmodifiable for cohabitation.
- Marital residence (subject to foreclosure and liens) was awarded to plaintiff; she was ordered to control sale and keep any net equity; plaintiff permitted to relocate a reasonable distance from Wilton or New York with the children.
- Defendant filed a motion to reargue which was denied; defendant appeals challenging support, alimony timing and modification, property award, relocation, and termination language.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Support awards exceed defendant's net income | Court relied on imputed earning capacity of $101,000 supported by tax returns | Support orders exceed defendant's actual/net income (accountant summary avg ~$63k) because penalties reduced reported net | Court affirmed imputation of $101,000 net earning capacity; penalties/interest are self‑inflicted and may be ignored when imputing income |
| Increase of alimony to $1,000/wk after plaintiff vacates home | Plaintiff will incur new housing expenses after leaving foreclosure‑subject residence; reduced interim support while she remains there | No evidence of plaintiff’s post‑move needs to justify increased alimony | Court reasonably structured lower interim payments while plaintiff occupies residence and higher alimony thereafter to cover likely housing needs |
| Preclusion of alimony modification for cohabitation (§ 46b‑86(b)) | Nonmodification justified by plaintiff’s living arrangements (caring for elderly father who contributes financially) | Statute gives payor a right to seek modification if cohabitation alters payee’s needs; court unlawfully eliminated that right | Court may lawfully award nonmodifiable alimony; record supported nonmodification given plaintiff’s household arrangement |
| Award of marital residence without stating plaintiff takes subject to liens | Plaintiff entitled only to net equity; court gave her control over sale and protection of net equity | Omission of explicit language that plaintiff takes property subject to liens risks ambiguity | Order awarded plaintiff any net equity (i.e., proceeds minus liens); that wording makes clear liens are satisfied before equity is paid to plaintiff |
| Permission to relocate children without applying § 46b‑56d | Relocation decided at initial dissolution; best‑interest standard under § 46b‑56 governs | Relocation statute § 46b‑56d (postjudgment relocation factors) should apply and defendant’s relocation rights were curtailed | § 46b‑56d applies only to postjudgment relocation motions; initial custody/relocation decisions use best‑interests (§ 46b‑56); record supports relocation order |
| Ambiguity over alimony termination after ten years | Plaintiff framed award as ten‑year term beginning at dissolution with commencement tied to vacating house | Order ambiguous because it says alimony terminates on death or remarriage but does not separately state ten‑year termination | Court’s language (alimony for ten years from date of judgment; payments begin later; terminates on death/remarriage) is not ambiguous — ten‑year durational limit stands |
Key Cases Cited
- Emerick v. Emerick, 170 Conn. App. 368 (2017) (standards of appellate review in domestic relations and clearly erroneous review of factual findings)
- Buxenbaum v. Jones, 189 Conn. App. 790 (2019) (trial court may base awards on earning capacity rather than actual income)
- Radcliffe v. Radcliffe, 109 Conn. App. 21 (2008) (principles for time‑limited alimony and needed evidentiary basis)
- Wichman v. Wichman, 49 Conn. App. 529 (1998) (purpose and operation of cohabitation statute § 46b‑86(b))
- Brown v. Brown, 148 Conn. App. 13 (2014) (trial court authority to award nonmodifiable periodic alimony)
- Sheehan v. Balasic, 46 Conn. App. 327 (1997) (trial court may order alimony nonterminable on remarriage or cohabitation)
- Lederle v. Spivey, 113 Conn. App. 177 (2009) (§ 46b‑56d governs postjudgment relocation; initial judgment relocations are governed by best‑interests under § 46b‑56)