CHARLOTTE MALPESO v. PASQUALE MALPESO
AC 36622
AC 37203
Appellate Court of Connecticut
May 3, 2016
DiPentima, C. J., and Beach and Sheldon, Js.
Argued December 14, 2015
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(Appeal from Superior Court, judicial district of Stamford-Norwalk, Schofield, J.)
Barbara M. Schellenberg, with whom were Richard L. Albrecht and, on the brief, Bruce L. Levin, for the appellant-appellee (defendant).
Kevin F. Collins, for the appellee-appellant (plaintiff).
Opinion
DiPENTIMA, C. J. In this postdissolution marital matter, the defendant, Pasquale Malpeso, appeals from the judgment of the trial court. Although the court granted his motion to modify the original unallocated alimony and child support that was entered as part of the parties’ judgment of dissolution, the defendant contends that the court (1) applied the wrong legal standard in calculating the child support component of the unallocated alimony and child support order, (2) determined the wrong effective date of the modification, (3) erroneously concluded that a lien could be placed on the defendant’s assets for him to pay his alimony obligation, and (4) incorrectly stated that it lacked jurisdiction to terminate his obligation to pay alimony. The defendant further claims that the trial court abused its discretion in finding him in contempt and ordering him to pay the plaintiff’s counsel fees and costs.1 We reverse, in part, and affirm, in part, the judgment of the trial court.2
We set forth the following facts and procedural history pertinent to this appeal. The plaintiff, Charlotte Malpeso, married the defendant on August 23, 1986. On June 25, 2004, the marriage was dissolved. At that time, the parties had three minor children: a son, born in 1988; and twin daughters, born in 1993. The judgment of dissolution incorporated the parties’ separation agreement (agreement) that provided, inter alia, that the defendant would pay the plaintiff $20,000 per month in unallocated alimony and child support.3 The
The complicated procedural history of this case began on May 25, 2011, when the defendant filed a motion to modify child support. In response, on June 17, 2011, the plaintiff filed an objection to the defendant’s motion. In August, 2011, the defendant amended his motion not only to modify child support, but also to modify alimony based on the following grounds: (1) the parties’ daughters had reached the age of majority and had graduated from high school; and (2) the economy of New York had undergone a substantial change as a result of a catastrophic event. The court, Wenzel, J., ruled that the only permissible ground for modification, pursuant tо paragraph 3.2 of the agreement, was the claim alleging a substantial change in the economy of New York. The court sustained the plaintiff’s objection to the motion on all other grounds upon which it was based. The defendant appealed from that ruling on September 6, 2011.
While the appeal was pending, the parties’ litigation continued in the trial court. The seeds of this appeal were sown on September 13, 2011, when the defendant filed a motion for contempt, alleging that the plaintiff had ‘‘refuse[d] to provide reasonable support to and for the parties’ children for support expenses such as clothing, necessities . . . personal transportation . . . grooming, etc.’’ Four months later, on January 25, 2012, the defendant filed another motion to modify alimony and child support. The second motion to modify was based on three grounds: (1) the parties’ three children had reached the age of majority and were no longer residing with the plaintiff; (2) the defendant was paying for the adult children’s college expenses;5 and (3) the defendant was experiencing
The court, Schofield, J., held multiple hearings between October and December of 2012 to resolve the following motions: (1) the defendant’s motion for contempt filed on September 13, 2011; (2) the defendant’s motion to modify alimony and child support filed on January 25, 2012; and (3) the plaintiff’s motion for contempt filed on June 14, 2012. Before Judge Schofield ruled on the motions, this court published its decision reversing Judge Wenzel’s ruling.7 In that year, following this court’s decision, the court, Schofield, J., issued three decisions addressing these motions.
With respect to the first decision, the court’s first memorandum of decision was issued on July 16, 2013, addressing all three motions before the court. In that decision, the court made the following findings: (1) the parties’ three children had reached the age of majority; (2) the children were no longer living with either parent; (3) the defendant, pursuant to the agreement, was paying for the three children’s college expenses; and (4) the alleged downturn in the defendant’s ‘‘financial circumstances [was] speculative, and uncorroborated, indeed contradicted, by [the evidence presented].’’ As to the third finding, the court credited the defendant’s testimony that when he started paying for the children’s college expenses, he believed that the amount of his unallocated alimony and support payment would be reduced. Nonetheless, the court noted that the agreement did not provide for such a reduction; thus, it ruled that the defendant could not ‘‘now claim that the costs of college expenses are a basis for modification.’’ The court, however, also inserted a footnote stating that, ‘‘[u]nless, of course, those college expenses substantially changed [the defendant’s] financial cir-cumstances.’’
The court granted the defendant’s second motion to modify alimony and child support that had been filed on January 25,
As to the parties’ respective motions for contempt, the court ruled in favor of the plaintiff on each. On the defendant’s motion for contempt, it found that the plaintiff was not in contempt. On the plaintiff’s motion, it found that the defendant was ‘‘in wilful and intentional violation of the court orders.’’ Upon finding the defendant in contempt, the court ordered him to pay the plaintiff $440,000 in arrears for failing to meet his $20,000 per month obligation for the twenty-two months from October, 2011, through July, 2013. Additionally, the court ordered the defendant to pay the plaintiff’s attorney’s fees and costs, totaling $41,016.18. In response to this decision, both parties filed several motions. The plaintiff filed a ‘‘motion to clarify and/or articulate’’ and a ‘‘motion to reopen and reargue decision.’’ The defendant also filed a motion to reargue.
With respect to the second decision, after the court held a hearing on the plaintiff’s motion to clarify and/or articulate and the defendant’s motion to reargue in October, 2013, it issued its second memorandum of decision on February 18, 2014. The court clarified its prior calculation of the presumptive child support amount, explaining that because the parties’ combined net weekly income was $17,039.309 and applying the guidelines with ‘‘a presumptive declining factor,’’ the resulting presumptive child support amount for three children was $2061 per week ($687 per child) or $8862 per month.10 Accordingly, the court ordered the ‘‘unallocated alimony to be reduced by the sum of $2061 per week retroactive to the [date of] service of the motion for modification.’’ In other words, the court reduced the defendant’s monthly financial obligation to the plaintiff from $20,000 to $11,138 per month, retroactive to the date of service.11 Then the court stated to the contrary
without further elaboration: ‘‘In its [July, 2013 memorandum of decision], the court incorrectly declined to award retroactivity to the date of majority. The court now corrects
The court’s second memorandum of decision also explained other aspects of its first order. Pertinent to this appeal, the court changed its stance on the issue of college expenses. Thе court, ‘‘upon review of the [agreement] and its provisions for modification,’’ concluded that college expenses could be a ‘‘basis for modification.’’ Therefore, the court concluded that $32,000 per month of college expenses constituted ‘‘a substantial change in circumstances justifying a reexamination of the parties’ financial circumstances pursuant to [
The court also addressed its previous contempt order. It asserted that the defendant was in contempt but adjusted its previous ruling as follows: ‘‘[T]he court orders that the arrearage which must be recalculated to reflect the current arrearage accruing since December, 2012, as modified with retroactivity.’’ The court did not elaborate any further, but it did affirm its previous order that the defendant pay the plaintiff’s attorney’s fees and costs. In response to the court’s second memorandum of decision, the plaintiff filed a motion to reopen, clarify and reargue, to which the defendant objected.
With respeсt to the third decision, on August 29, 2014, after a hearing, the court issued a third memorandum on the plaintiff’s motion to reopen. The court again attempted therein to clarify how it had calculated the presumptive child support amount. The court determined that because the parties’ combined net weekly income was approximately $16,900, the presumptive child support amount was $2600 per week pursuant to the guidelines effective August 1, 2005, as well as
Finally, the court made two observations directed at the defendant’s previous arguments. First, the court rejected the defendant’s argument regarding the termination of the alimony award because the agreement limited the modification of alimony to specific events, and the court had no jurisdiction to terminate the alimony. Second, the court again stated that it did not consider college expenses because the defendant was
obligated contractually to pay for those expenses. It did, however, reiterate that ‘‘if the college expenses significantly altered [the defendant’s] finances, that might be a basis for modification.’’
Faced with this difficult record, we briefly review the findings and conclusions that appear to be before us in this appeal.
What is less clear is the effective dаte of the modification order and the amount of the arrearage owed to the plaintiff as a result of the contempt finding. The second memorandum of decision contains conflicting language as to the retroactivity of the newly fashioned alimony order, and the court declined to articulate its order. Moreover, although the court explicitly stated in its second memorandum of decision that the arrearage ‘‘must be recalculated,’’ it did not do so.
On March 10, 2014, the defendant filed this appeal, which he later amended on September 16, 2014. The plaintiff also filed an appeal on September 16, 2014. See footnote 1 of this opinion. Additional facts will be set forth as necessary.
I
The defendant’s first claim is that the court applied the wrong legal standard in calculating what portion of the original unallocated alimony and child support order was child support. He makes two arguments to support this claim. First, the defendant contends that the court failed to apply the methodology for determining the child support portion of an unallocated alimony and child support order, as articulated in Tomlinson v. Tomlinson, 305 Conn. 539, 46 A.3d 112 (2012); specifically, the court erroneously used the parties’ current net weekly incomes to calculate the child support аmount.
Second, he asserts that the court should have determined the intent of the parties rather than applying the guidelines to determine the amount of child support. Thus, the defendant contends, the entire modification order must be reversed. We agree that the court applied the wrong legal standard.
The following additional facts are required. The court at the original dissolution proceeding in 2004, Hon. Dennis F. Harrigan, judge trial referee, found the agreement between the parties to be fair and equitable. It incorporated the terms of the agreement into the dissolution decree, noting that ‘‘the income of the [d]efendant exceeds the maximum under the guidelines schedule, [and] [t]he parties have reached an agreement as to [child support] in their [a]greement.’’
At the November 16, 2012 hearing, the defendant testified to his interpretation of the unallocated alimony and child support award. Specifically, he testified that the $20,000 obligation was meant to be equally divided among the three children and the plaintiff, i.e., $5000 per person per month.
The defendant makes two arguments to support this claim. First, he claims that the court improperly used the parties’ current financial affidavits. Second, he claims that the court should have credited the defendant’s testimony as to the parties’ intent regarding how the $20,000 was meant to be divided. The second argument is based on the defendant’s reading of the original dissolution decree in which Judge Harrigan not only found that this was a case of a high income parent whose net weekly income went beyond the guidelines, but also that the parties had reached an agreement as to child support. Thus, the defendant contends, the court never should have applied the guidelines when deciding the motion to modify. As to the defendant’s first argument, we agree. We reject the defendant’s second argument.
We begin by setting forth the relevant standard of review and legal principles. The defendant asserts that the court applied the wrong legal standard in calculating the child support amount and that the court, rather than applying the guidelines, should only have determined the intent of the parties to аscertain the amount of child support in the unallocated alimony and child support order. Because the defendant raises a question of law in both issues and we must interpret existing statutes and regulations,13 we apply plenary review. See Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d 449 (2013)
(‘‘[t]he question of whether, and to what extent, the child support guidelines apply . . . is a question of law over which this court should exercise plenary review’’ [internal quotation marks omitted]); Coury v. Coury, 161 Conn. App. 271, 293, 128 A.3d 517 (2015) (‘‘[o]ur deferential standard of review [in domestic relations cases] . . . does not extend to the court’s interpretation of and application of the law to the facts [thus, we apply] . . . plenary review on appeal’’ [internal quotation marks omitted]).
In cases such as this one, where the parties incorporate the child support into an unallocated alimony and child support order that limits the modification of the alimony pursuant to an agreement, modification requires additional considerations. Because ‘‘an unallocated order incorporates alimony and child support without delineating specific amounts for each component, the unallocated order, along with other financial orders, necessarily includes a portion attributable to child support in an amount sufficient to satisfy the guidelines.’’ Tomlinson v. Tomlinson, supra, 305 Conn. 558. Thus, to decide a motion to modify in this situation, ‘‘a trial court must determine what part of the original decree constituted modifiable child support and what part constituted nonmodifiable alimony.’’ Id.
The 1999 guidelines include the schedule of basic child support obligations (schedule) for calculating ‘‘the basic child support obligation’’ for families that have three minor children and a combined net weekly income ranging from $10 to $2500.15
apply, except insofar as the guidelines mandate a minimum child support payment. This does not mean, however, that the guideline principles that inform the schedule, including equity, consistency and uniformity in the treatment of persons in similar circumstances . . . do not continue to apply merely because the parties’ income exceeds the schedule’s upper limit. As previously discussed,
Critical to this case, the guidelines grant discretionary power for courts to deviate from the presumptive minimum child support amount. ‘‘[T]he guidelines emphasize that the support amounts calculated thereunder are the correct amounts to be ordered by the court unless rebutted by a specific finding on the record that such an amount would be inequitable or inappropriate. [
Finally, ‘‘[i]n modifying the support order in a subsequent proceeding, a trial court may consider the same factors applied in the initial determination to assess any changes in the parties’ circumstances since the last court order. . . .
We now return to the facts of this case. The court found a substantial change of circumstances in that the children had reached the age of majority and were no longer residing with either pаrent. These findings gave the court the authority, pursuant to
the unallocated alimony and child support order. See Malpeso v. Malpeso, 140 Conn. App. 783, 786, 60 A.3d 380 (2013) (
First, the court incorrectly used the 2005 guidelines. In December, 2005, the parties’ agreement had been opened and modified to allow the defendant to purchase certain property from the plaintiff. The court, in its attempt to unbundle the child support from the unallocated alimony and child support, applied Borkowski using 2005 as its benchmark. The court, however, applied Borkowski incorrectly. Although ‘‘[i]t is . . . well established
Second, the court incorrectly used the parties’ current financial affidavits to determine the combined net weekly income. See Tomlinson v. Tomlinson, supra, 305 Conn. 558 (directing that courts, in unbundling unallocated alimony and child support order, must determine child support order that was ‘‘right and proper at the time it is entered,’’ which requires using financial affidavits from time of original decree [emphasis in original]). Third, after incorrectly calculating the combined net weekly income and applying the guidelines with a ‘‘presumptive declining factor,’’ the court erroneously attributed the presumptive minimum child support amount to each child rather than attributing the amount to all three children. See
mined’’ [emphasis added]).
Fourth and finally, because the parties’ 2004 combined net weekly income, as noted by the court at the time of dissolution, would have exceeded the $2500 threshold, the child support award was to be determined on a case-by-case basis. See
On remand, to determine the proper child support amount, the court must correctly unbundle the child support from the 2004 unallocated alimony and child support order. First, it must determine the parties’ combined net weekly income using the 2004 financial affidavits. Second, it must calculate the presumptive minimum for the
Further, the court will need to ascertain the intent of the parties. See Isham v. Isham, 292 Conn. 170, 180–81, 972 A.2d 228 (2009).20 The record reveals that the parties had ‘‘reached an agreement as to child support in their [a]greement.’’ The agreement states that the ‘‘defendant shall pay to the [plaintiff] as alimony, or separate maintenance for the support of the minor children the sum of $20,000 per month.’’ (Emphasis added.) This court previously determined that the ‘‘only plausible interpretation of this clause is that it provides for unallocated alimony and child support.’’ Malpeso v. Malpeso, supra, 140 Conn. App. 788. The language, however, was not clear as to how the $20,000 was to be divided. Because ‘‘support agreements that are not in accordance with the financial dictates of the guidelines are not enforceable unless one of the guidelines’ deviation criteria is present, such as when the terms
of the agreement are in the best interest of the child’’; Brent v. Lebowitz, 67 Conn. App. 527, 532, 787 A.2d 621, cert. granted on other grounds, 260 Conn. 902, 793 A.2d 1087 (2002) (appeal withdrawn April 25, 2002); the court must determine what was intended to be child support within the unallocated alimony and child support order to ensure the agreement did not run afoul of the guidelines.
Our Suрreme Court has ‘‘characterized the financial orders in dissolution proceedings as resembling a mosaic, in which all the various financial components are carefully interwoven with one another. . . . Accordingly, when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders. . . . We also have stated, however, that [e]very improper order . . . does not necessarily merit a reconsideration of all of the trial court’s financial
In the present case, we have concluded that the court applied the wrong legal standard in calculating the child support amount from the original unallocated alimony and child support order. Therefore, to determine a new alimony order, after the correct child support amount is deducted from the original unallocated alimony and child support order, the court must ‘‘subtract that amount from the total amount of [the] unallocated [alimony and] support [order] . . . .’’; Coury v. Coury, supra, 161 Conn. App. 304; i.e., subtract the 2004 child support amount from $20,000. The difference represents the 2004 alimony award. Because ‘‘grounds for modification have been shown . . . the trial court is entitled to consider all the factors, as mandated by . . . [
order, if any.22 See, e.g., Tuckman v. Tuckman, supra, 308 Conn. 215.
II
The defendant’s next claim is that the court abused its discretion in determining the effective dаte of the modification. Specifically, he points to various inconsistencies among the court’s three orders regarding their retroactivity, which make it ‘‘impossible to calculate a new arrearage figure . .
‘‘The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the corrеctness of its action. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.’’ (Internal quotation marks omitted.) Nation-Bailey v. Bailey, 144 Conn. App. 319, 323, 74 A.3d 433 (2013), aff’d, 316 Conn. 182, 112 A.3d 144 (2015).
The following legal principles guide our analysis. ‘‘As a general matter, [t]he obligation of a parent to support a child terminates when the child attains the age of majority, which, in this state, is eighteen.
The defendant’s argument is untenable because the
relevant statutes and case law contradict his position. Section
It is axiomatic that the court has discretion in determining the amount of alimony to be paid retroactively. See
Notwithstanding this broad discretion afforded to our trial courts, the court here abused its discretion by failing to provide a clear retroactivity order. In its first memorandum of decision, it ‘‘declines’’ to apply its order retroactively. In its second decision, by contrast, the court applies its orders retroactively ‘‘to the [date of] service of the motion for modification,’’ which was February 9, 2012. That same order becomes unclear,
however, when later in the same paragraph of the same memorandum of decision, the court states that it has ‘‘incorrectly declined to award retroactivity to the date of majority,’’ but it was ‘‘correct[ing]
Accordingly, we conclude that the court abused its discretion by not entering a clear order as to the retroactivity of its modified alimony and child support order. On remand, after it calculates the proper alimony award, if any, the court must resolve the issue of retroactivity.
III
The defendant also claims that the court incorrectly concluded that it lacked jurisdiction to terminate the alimony. Specifically, he claims that because the hearings began in October, 2012, and the court found that the college expenses constituted a substantial change in circumstances, it had the authority to terminate alimony. We agree that the court had jurisdiction to terminate alimony.
In its final memorandum, the court made the following observation: ‘‘The defendant’s argument concerning the termination of alimony is flawed. The separation agreement specifically limits any modification of alimony to specific events. The court does not have jurisdiction to terminate alimony.’’ When the underlying issue of the claim pertains to the jurisdiction of the court, it is a question of law over which our rеview is plenary. Tittle v. Skipp-Tittle, 161 Conn. App. 542, 549, 128 A.3d 590 (2015); see also Parker v. Commissioner of Correction, 117 Conn. App. 727, 729, 980 A.2d 930, (‘‘[o]ur standard of review is plenary when examining whether jurisdiction exists’’), cert. denied, 294 Conn. 917, 983 A.2d 851 (2009).
In cases such as this one, where the parties have an agreement, the court must determine whether it has the statutory authority to act. ‘‘Separate and distinct from the question of whether a court has jurisdictional power to hear and determine a support matter, however, is the question of whether a trial court properly applies
(Emphasis omitted; internal quotation marks omitted.) Id., 730.
In the present case, the court confused the issues of subject matter jurisdiction and the proper exercise of its authority to act pursuant to
The defendant’s final claim is that the court abused its discretion by finding him in contempt and by awarding attorney’s fees and costs to the plaintiff. We address each claim in turn.
A
We first address the defendant’s claim that the court abused its discretion in finding him in contempt. The following facts are necessary to resolve this claim. The court found the defendant’s net monthly income to be $58,269. It also found that the defendant was paying $32,000 per month toward his children’s college expenses. Pursuant to the unallocated alimony and child support order, the defendant’s monthly financial obligation to the plaintiff was $20,000. Deducting these two liabilities from his net monthly income, $6269 was left for the defendant to pay his other monthly expenses. The defendant testified that he stopped making the $20,000 monthly payments in May, 2011, because ‘‘mathematically [he could not] afford it.’’
The court made several findings regarding the defendant’s real estate assets. On the basis of the defendant’s October, 2012 financial affidavit, it found that the total value of his real estate was approximately $8,800,000, with unencumbered equity totaling $5,050,000. The court also found that four of the five properties did not have mortgages. Furthermore, the court found that many of the defendant’s claimed expenses had been voluntarily assumed. Ultimately, under the first and second memoranda of decision, the court found the defendant in contempt because of his ‘‘wilful and intentional violation of the court orders.’’ Specifically, the court stated that the defendant had ‘‘avail[ed] himself of selfhelp’’ and found the defendant’s claim of an ‘‘inability to pay to be without merit.’’ Although the court ordered
that the ‘‘arrearage which must be recalculated to reflect the current arrearage accruing since December, 2012, as modified with retroactivity,’’ it made no recalculation nor did it explain why it selected December, 2012, as the start of accrual the period.
Before resolving the defendant’s claim, we set forth the standard of review and relevant legal principles. ‘‘A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [alleged contemnor] were in contempt of a court order. . . . To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did.’’25 (Internal quotation marks omitted.) Norberg-Hurlburt v. Hurlburt, 162 Conn. App. 661, 669, 133 A.3d 482 (2016).
‘‘[T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did.’’ (Internal quotation marks omitted.) Lynch v. Lynch, 153 Conn. App. 208, 238–39, 100 A.3d 968 (2014), cert. denied, 315 Conn. 923, 108 A.3d 1124, cert. denied, U.S. , 136 S. Ct. 68, 193 L. Ed. 2d 66 (2015).
Although ‘‘[c]ontempt is a disobedience to the rules and orders of a court which has power to punish for such an offense’’; (internal quotation marks omitted) Brody v. Brody, 145 Conn. App. 654, 662, 77 A.3d 156 (2013); ‘‘[t]he inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt. . . . The contemnor must establish that he cannot comply, or was unable to do so.’’ (Internal quotаtion marks omitted.) Id.
Applying these principles to this case, we conclude that the court did not abuse its discretion in finding the defendant in contempt. The record supports the court’s findings, namely, that the defendant had substantial equity in various real properties that he could have used to raise funds to meet his alimony and child support obligations. Having heard the defendant’s testimony, the court was within its province to credit or not credit that testimony. Nonetheless, in Connecticut, it is clear that ‘‘[a]n order of the court must be obeyed until it has been modified or successfully challenged.’’ (Internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 719, 784 A.2d 890 (2001). Therefore, ‘‘until a motion is brought to and is granted by the court, that
party may be held in contempt in the discretion of the trial court if, in the interim, the complaining party fails to abide by the support order.’’ Id., 722. Our Supreme Court repeatedly has advised parties against engaging in self-help. See, e.g., id., 719–20. Failure to heed this warning may be a sufficient ground for a party to be held in contempt. See id., 720. The court ‘‘was entitled to determine that to exonerate the [defendant] would be an undue inducement to litigants’ exercise of self-help.’’ (Emphasis in original; internal quotation marks omitted.) Id.
Although we affirm the finding of contempt, we cannot allow the court’s arrearage order to stand becausе, after declaring that it must, the court never recalculated the arrearage. Additionally, in light of our conclusions in parts I and II of this opinion, to conclude otherwise would not serve the interests of justice. See, e.g., Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998) (affirming contempt finding but reversing attorney’s fees award that was based on contempt finding). On remand, the court must recalculate the arrearage amount.
B
The following facts are necessary to resolve the defendant’s claim that the court abused its discretion in awarding attorney’s fees and costs to the plaintiff. At the hearing, the plaintiff introduced, as a full exhibit, an invoice of her attorney’s fees. After the hearing, the plaintiff
The following law and principles guides our analysis.
The record reveals that the court abused its discretion. The affidavit of the plaintiff’s counsel states that counsel worked on a motion for contempt. In this case, each party filed a motion for contempt. The affidavit does not state how many of the 11.7 hours were spent on each motion. Moreover, the affidavit unequivocally states that the plaintiff’s counsel spent 60.6 hours on the ‘‘plaintiff’s motion for modification,’’ which accounts for most of the fee that was sought.(Emphasis added.) The record shows that the plaintiff did not file a motion to modify. Even if she had filed such a motion and the court had found the defendant in contempt, any attorney’s fees awarded to the plaintiff would be ‘‘restricted to efforts related to the contempt action.’’ Esposito v. Esposito, supra, 71 Conn. App. 749. Thus, the court abused its discretion in its award of attorney’s feеs and costs. Accordingly, we vacate the award of attorney’s fees and remand this matter to the court for further proceedings in accordance with this opinion.
The judgment is reversed as to the court’s financial orders and award of attorney’s fees and costs, and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed as to the finding of contempt.
In this opinion the other judges concurred.