LIBBY LIGHT v. DAVID GRIMES
(AC 35905)
Connecticut Appellate Court
Argued October 20, 2014—officially released March 17, 2015
Gruendel, Lavine and Bear, Js.
(Appeal from Superior Court, judicial district of Stamford-Norwalk, Schofield, J. [dissolution judgment]; Emons, J. [motion for modification, motion for attorney’s fees, motion to reargue, motion to open].)
******************************************************
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Barbara M. Schellenberg, with whom, on the brief, was Richard L. Albrecht, the appellant (defendant).
Gary I. Cohen, for the appellee (plaintiff).
Opinion
BEAR, J. The defendant, David Grimes, appeals from the judgment of the trial court on four postjudgment motions. The defendant claims that the court improperly (1) denied his 2012 motion for modification of unallocated alimony and support, (2) granted the motion of the plaintiff, Libby Light, for attorney’s fees and awarded her $20,000, (3) denied the relief sought in his motion for reargument, and (4) denied his motion to open the judgment with respect to unallocated alimony and support. We affirm the judgment of the court denying the defendant’s motion for modification of unallocated alimony and support, the defendant’s claims on reargument, and the defendant’s claims in the motion to open. We reverse the judgment of the court awarding the plaintiff $20,000 in attorney’s fees and we remand the matter to the court with direction to vacate that order.
The record reveals the following relevant facts and procedural history. The plaintiff and the defendant were married in December, 1991. They have three children issue of their marriage, born in August, 1996, April, 1999, and August, 2002. At all relevant times, the defendant was a partner at a law firm (employer). After a limited contested hearing, their marriage was dissolved on May 9, 2008. In its memorandum of decision and judgment, the court entered the following unallocated alimony and support order: ‘‘Until the death of either party, the plaintiff’s remarriage or cohabitation, or twelve years from the date of Judgment, whichever event shall first occur, the defendant shall pay to the plaintiff unallocated alimony and child support the amount of $40,000 per month based upon defendant’s income of $1,420,000 per year. The defendant’s unallocated alimony and child support obligation shall be reduced by $2,000 per month as each of the two older children attains the age of majority and a final reduction of another $3,000 per month upon the youngest child’s attaining the age of majority. . . . The plaintiff shall have a safe harbor with respect to her earnings, income or distributions of $75,000 per calendar year (the ‘Safe Harbor
Thereafter, the defendant sought clarification of the unallocated alimony order and on December 15, 2008, the court ruled that although it would not modify the term of alimony, it would modify the unallocated alimony and support step down by a reduction of $3000 per month as each of the oldest two children reached the age of majority, instead of $2000 per month as previously ordered.1
Additional facts and procedural history are set forth with respect to each challenged ruling.
I
TRIAL COURT ORDERS
A
The Defendant’s Motion for Modification of the Unallocated Alimony Order and the Plaintiff’s Motion for Attorney’s Fees
On August 14, 2012, the defendant filed his third motion for modification of unallocated alimony and support.2 He sought a reduction of the May 9, 2008 order of
On February 19, 2013, the plaintiff filed a motion for attorney’s fees, making reference to the defendant’s then pending motion for modification. She ‘‘move[d] under [
On April 4, 2013, the court commenced the hearing on the pending motions. The modification hearing continued and concluded on May 6, 2013. On that day, the court orally rendered its findings and orders as follows: ‘‘The court finds that [the defendant] has not proven that he has experienced a substantial change in circumstances given the ground in his motion that his income amounted to a substantial change in circumstance. . . . [I]n light of this motion [for modification] that the court considers wasteful and on the border of being frivolous, although I’m not sure it goes over the line to frivolous, but it, certainly, was a wasteful motion, the court is going to order that he pay [the plaintiff’s] attorney’s fees in the amount of $20,000.’’
B
The Defendant’s Motion for Reargument
On May 24, 2013, the defendant filed a motion to reargue. The defendant sought
Referring to his August 14, 2012 motion for modification, he alleged that there had been a substantial change in his financial circumstances caused by a significant reduction in his annual income. The defendant alleged that he had testified at the modification hearing that his net monthly distributions from his employer had been reduced from approximately $68,000 in 2008 to approximately $38,000 in 2012 and 2013, and that his total compensation from employment in 2012 was substantially less than the $1,420,000 found by the court in 2008. He also alleged that the plaintiff did not dispute in 2012 that the defendant’s total annual income was less than $1,420,000 and that his monthly distributions were less than his $40,000 per month obligation to the plaintiff. He alleged that his March 15, 2013 paystub was admitted into evidence at that hearing and that it listed his total cash income in 2012 as $1,179,627, a 17 percent decrease from his income in 2008. He alleged that at the modification hearing he testified that some of the reduction in his income was due to having to pay increased income taxes because of the expansion of his employer’s business into additional states and foreign countries. Additional reasons for the reduction in his income included a 3 percent increase in his federal tax rate and a doubling of his medical insurance payments since the trial in 2008. He claimed that reargument should be granted because he had demonstrated a substantial reduction in both his monthly and annual income.
With respect to the award of attorney’s fees, the defendant alleged that the plaintiff in her motion for attorney’s fees did not represent that she lacked the resources to pay them, and that six days after she filed her motion, the plaintiff paid $26,000 in cash for a new Lexus hybrid automobile. Additionally, he pointed out that the plaintiff’s April 2, 2013 financial affidavit showed assets of approximately $1,300,000, and cash of approximately $100,000. The defendant argued that the reason expressed by the court for its award of attorney’s fees was legally improper and that the evidence demonstrated the plaintiff was financially able to pay her own attorney’s fees. The defendant also argued that the plaintiff had sought fees pursuant to
At the modification hearing, the defendant had introduced and had been cross-examined about a K-1 tax form from his employer relating to his 2012 income. That cross-examination focused on the $1,292,389 amount on that tax form described as withdrawals and distributions
The defendant appealed from the court’s judgment denying his motion for modification, granting the plaintiff’s motion for attorney’s fees, and denying the relief requested in his motion for reargument.
C
The Defendant’s Motion to Open
On October 16, 2013, the defendant filed a motion to open judgment with the trial court pursuant to
At the hearing on the motion to open, the defendant argued that he did not have to rely on newly discovered evidence, but rather was relying on a mathematical mistake. The plaintiff asserted that in order to present
new evidence, a party has to show that the evidence sought to be introduced was not available at the time of the original hearing, and that could not be the case where the defendant introduced the
The defendant filed an amended appeal from the court’s judgment denying his motion to open.
II
CLAIMS ON APPEAL
A
The Defendant’s Motion for Modification of the Unallocated Alimony Order
The defendant first claims that the court improperly denied his 2012 motion for modification of the unallocated alimony and support order. The defendant argues that the court improperly denied his motion for modification as wasteful and bordering on being frivolous, especially where he presented credible evidence of a significant decrease in his gross and net incomes, and his continual need to borrow money to meet his monthly unallocated alimony and support obligation. He asserts that the court did not correctly apply the law and reach a reasonable conclusion, where the court denied the motion despite his introduction of credible evidence of more than a 15 percent decrease in his gross income, a 20 to 25 percent decrease in his net income, and his need to borrow money to keep abreast of his unallocated alimony obligation. He also asserts that the court reached its decision with no indication that it had considered his evidence regarding his net income. We disagree.
We first set forth the standard of review and relevant legal principles that inform our analysis. ‘‘Our review of a trial court’s granting or denial of a motion for modification of alimony is governed by the abuse of discretion standard. . . . To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.’’ (Citation omitted; internal quotation marks omitted.) Marshall v. Marshall, 151 Conn. App. 638, 655, 97 A.3d 1 (2014). ‘‘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. . . . Trial courts have broad discretion in deciding motions for modification.’’ (Internal quotation marks omitted.) Pite v. Pite, 135 Conn. App. 819, 824, 43 A.3d 229, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012).
‘‘[
or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is alimony [or child support], the applicable provision of the statute is
‘‘The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided . . . or to allow the parties to use a motion to modify as an appeal. . . . Rather, the trial court’s discretion includes only the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.’’ (Internal quotation marks omitted.) Olson v. Mohammadu, supra, 310 Conn. 673.
We conclude that the court did not abuse its discretion in denying the defendant’s motion to modify unallocated alimony and support on the basis of the specific allegations of that motion and on the evidence presented to it by the parties at the hearing on the motion, on which it properly could rely.9
B
The Plaintiff’s Motion for Attorney’s Fees
The defendant next claims that the court improperly granted the plaintiff’s motion for attorney’s fees and awarded her $20,000. The defendant argues that the court applied an incorrect standard in awarding attorney’s fees. He argues that ‘‘counsel fees in a postdissolu-
tion action may only be awarded pursuant to statute on financial grounds, or pursuant to the trial court’s inherent authority, if there are specific findings that a party’s claim is not colorable and that the party otherwise acted in bad faith.’’ The defendant also argues that, even if the court applied the correct standard, there was no evidence to support an award of attorney’s fees. We agree with the defendant.
We begin by setting forth the standard of review and legal principles relevant to this claim. ‘‘Whether to allow [attorney’s] fees . . . and if so in what
In Berzins v. Berzins, supra, 306 Conn. 661, our Supreme Court noted that ‘‘[t]he common law rule in Connecticut, also known as the American Rule, is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . One such exception is the inherent authority of a trial court to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.’’ (Citation omitted; internal quotation marks omitted.) Id.
Our Supreme Court ‘‘explained the narrow scope of this exception in Maris v. McGrath, supra, 269 Conn. 848, in which [it] upheld a trial court’s determination that attorney’s fees should be awarded to the defendant because the trial court had found both that the case was ‘wholly without merit’ and that ‘the plaintiff repeatedly had testified untruthfully and in bad faith.’ [Our Supreme Court] reiterated principles that [it] previously had articulated indicating that a litigant seeking an award of attorney’s fees for the bad faith conduct of the opposing party faces a high hurdle.’’ Berzins v. Berzins, supra, 306 Conn. 662. In Maris, and reiterated in Berzins, the court quoted its previous decision in CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154–55, 735 A.2d 333 (1999), stating: ‘‘We agree, furthermore, with certain principles articulated by the Second Circuit Court of Appeals in determining whether the bad faith exception applies. To ensure . . . that fear of an award of [attorney’s] fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper
purposes . . . and a high degree of specificity in the factual findings of [the] lower courts. . . . Whether a claim is colorable, for purposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. . . . To determine whether the bad-faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics or its wilful violations of court orders; [t]he appropriate focus for the court . . . is the conduct of the party in instigating or maintaining the litigation.’’ (Internal quotation marks omitted.) Berzins v. Berzins, supra, 662. The court held that ‘‘Maris makes clear that in order to impose sanctions pursuant to its inherent authority, the trial court must find both that the litigant’s claims were entirely without color and that the litigant acted in bad faith.’’ (Emphasis in original.) Id., 663.
In the present case, although the court did find that the defendant’s motion for modification was wasteful and bordering on frivolous,10 the court did not find that
C
The Defendant’s Motion for Reargument
The defendant next claims that the court improperly denied the relief sought in his motion for reargument. The defendant argues that the court abused its discretion by failing to correct its mistakes after considering the incorrect financial information.11 We disagree.
‘‘The standard of review for a court’s denial of a motion to reargue is abuse of discretion. . . . [T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court. . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . . .’’ (Internal quotation marks omitted.) Lynch v. Lynch, 153 Conn. App. 208, 244–45, 100 A.3d 968 (2014), cert. denied, 315 Conn. 923, A.3d (2015).
As noted previously in this opinion, the court had before it at the modification hearing conflicting evidence of the defendant’s 2012 gross income, including the K-1 tax form and the March 15, 2013 paystub. Except for the defendant’s claim in his motion for reargument that the court should have considered the amount of
$1,192,389 instead of the amount of $1,292,389 also set forth on the K-1 tax form, which claim could have been raised by him at the modification hearing, the defendant did not ask the court to consider any overlooked legal authority or claim, or to reconsider a misapprehended fact. He instead asked the court to reevaluate the facts that had been before it during the modification hearing, thus seeking an improper second bite of the apple. We, therefore, conclude that the court did not abuse its discretion in denying the relief sought in the motion for reargument.
D
The Defendant’s Motion to Open
The defendant’s final claim is that the court improperly denied his motion to open the judgment with respect to unallocated alimony and support. The defendant argues that the court improperly found that there was no new evidence that was not available at the time of the modification hearing. The defendant argues that his 2012 federal income tax return and the affidavit of his accountant constituted new evidence because they were not available at the time of that hearing. We disagree.
‘‘The standard of review on a motion to open a judgment under Practice Book § 17-4 is whether the trial court abused its discretion.’’ Marut v. IndyMac Bank, FSB, 132 Conn. App. 763, 771, 34 A.3d 439 (2012). ‘‘[O]ne of the essential conditions for the granting of such a motion is that the evidence which the party seeks to offer could not have been known
After a thorough review of the record, we conclude that the court did not abuse its discretion in concluding that the defendant did not present new evidence that was not available at the time of the modification hearing, and in denying the motion to open. Each document provided by the defendant at the hearing on the motion to open in relevant part contained, referred to, or was based on information, including information from the K-1 tax form, which was available at the modification hearing. Moreover, there was no proof offered by the defendant that Whiting was not available to testify on the date of the modification hearing. See id., 73 (‘‘if a party upon the filing of a decision unfavorable to him upon an issue which has been litigated at the [hearing] has a right to have the judgment reopened to enable him to offer further testimony upon that issue, which might equally well have been offered at the [hearing], litigation would be prolonged beyond the requirements of a sound public policy’’ [internal quotation marks omitted]).
The judgment is reversed only as to the award of attorney’s fees to the plaintiff, and the case is remanded
with direction to vacate that order. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.