Pishal v. Pishal ( 2022 )

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CATHIE PISHAL v. VICTOR PISHAL
(AC 43613)
Prescott, Suarez and Bishop, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
denying his motion to modify his alimony obligation. In his motion, the
defendant alleged that his alimony obligation should be terminated on
the basis of the plaintiff’s cohabitation with a third party, or that his
alimony obligation should be modified on the basis of a substantial
change in his financial circumstances, as his current income was less
than his income at the time of the dissolution as a result of his recent
loss of employment. The court denied the defendant’s motion in an oral
ruling at the conclusion of a hearing on that motion. Held:
1. The defendant could not prevail on his claim that the trial court improperly
relied on a certain rule of practice (§ 15-8), which applied to civil actions
and not to family matters, in denying his motion to modify his alimony
obligation: the defendant failed to demonstrate that the trial court, in
fact, relied on Practice Book § 15-8, as the plaintiff did not make a
motion for judgment of dismissal under § 15-8 and the court did not
dismiss the defendant’s motion or refer to § 15-8 in its decision; more-
over, the court’s statement that the defendant had not proven a prima
facie case of either cohabitation or a substantial change in circumstances
reasonably could be interpreted to mean that, in its role as fact finder,
the court had evaluated the totality of the evidence and did not find the
relevant factual issues in the defendant’s favor.
2. This court declined to review the defendant’s remaining claims, namely,
that the trial court improperly weighed the evidence and abused its
discretion in declining to terminate or to modify the defendant’s alimony
obligation, the defendant having failed to provide an adequate record
for review as required pursuant to the applicable rule of practice (§ 61-
10): the record did not contain a proper statement of the court’s decision,
as the court did not file a memorandum of decision setting forth its
reasoning in denying the motion and the defendant did not take steps
to obtain a transcribed copy of the decision signed by the trial court;
moreover, although the record included the certified transcript, this
court could not identify in the transcript the trial court’s factual or legal
bases for denying the defendant’s motion, and the defendant failed to
seek an articulation of the court’s oral decision.
Argued January 10—officially released May 24, 2022
Procedural History
Action for the dissolution of marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Ansonia-Milford, where the court, Turner, J.,
rendered judgment dissolving the marriage and granting
certain other relief; thereafter, the court, Gould, J.,
denied the defendant’s motion to modify alimony, and
the defendant appealed to this court. Affirmed.
Leslie I. Jennings-Lax, with whom was Marissa B.
Hernandez, for the appellant (defendant).
Christine M. Gonillo, for the appellee (plaintiff).
Opinion
PER CURIAM. In this postdissolution action, the
defendant, Victor Pishal, appeals from the judgment of
the trial court denying his motion to modify his alimony
payments to the plaintiff, Cathie Pishal. The defendant
claims that (1) the court improperly relied on Practice
Book § 15-8, which applies to civil actions and not fam-
ily matters, in concluding that he did not establish a
prima facie case; (2) even if the court properly relied on
§ 15-8, it nonetheless improperly weighed the evidence
and failed to properly consider whether he had pre-
sented sufficient evidence to establish a prima facie
case; (3) the court abused its discretion in concluding
that he was not entitled to the termination of his alimony
obligation because the plaintiff was cohabitating with
a third party; and (4) the court abused its discretion in
concluding that he was not entitled to a modification
of his alimony obligation because of a substantial change
in his financial circumstances. We affirm the judgment
of the court.
The following procedural history is relevant to this
appeal. On November 9, 2006, the court, Turner, J.,
dissolved the marriage of the parties. The court, in its
judgment, incorporated by reference a written separa-
tion agreement entered into by the parties. Section 3 of
the agreement states in relevant part: ‘‘The [defendant]
shall pay to the [plaintiff] alimony in the amount of
$100 per week for a period of twenty (20) years. Said
amount shall be modifiable upon motion submitted to
the Superior Court if there is a substantial change in
circumstances. Said amount shall cease upon the [plain-
tiff’s] death, remarriage or cohabitation, or the [defen-
dant’s] death.’’
On June 13, 2019, the defendant filed a motion seeking
the termination or modification of his obligation to pay
alimony to the plaintiff. The defendant alleged that the
plaintiff had been ‘‘residing with her significant other
in the plaintiff’s home for at least the past four years.’’
The defendant also alleged that ‘‘the plaintiff’s signifi-
cant other contributes to the plaintiff’s residence, alter-
ing the financial needs of the plaintiff.’’ Additionally,
the defendant alleged that, at the time of the judgment
of dissolution in 2006, he was gainfully employed but
that, on April 12, 2019, he ‘‘was released from his long-
time employer through no fault of his own. The com-
pany downsized and terminate[d] one-third of their
employees.’’ The defendant alleged that his current
income, derived from his receipt of Social Security and
unemployment benefits, was less than his income at
the time of the dissolution. Relying on the plaintiff’s
cohabitation and his decrease in income, the defendant
sought, inter alia, (1) a modification of his alimony
obligation to zero dollars, (2) an immediate termination
of his alimony obligation, and (3) a finding that he had
overpaid alimony to the plaintiff.
On October 8, 2019, the court, Gould, J., held a hear-
ing on the defendant’s motion. At the hearing, the defen-
dant’s attorney presented testimony from both parties.1
The parties were cross-examined by the plaintiff’s attor-
ney. Both parties presented documentary evidence as
well. After the witnesses were examined, the court
asked the defendant’s attorney if she wished to present
any additional testimony, to which she replied, ‘‘[n]o,
Your Honor.’’ The court asked the defendant’s attorney,
‘‘[m]oving party rests?’’ The defendant’s attorney replied,
‘‘[y]es, Your Honor.’’ Thereafter, the court denied the
motion.
The court stated: ‘‘All right. . . . I’ve listened to the
sworn testimony of the parties. I’ve carefully reviewed
the evidence that’s been offered on both parties’ behalf.
The gravamen of the motion filed on behalf of the defen-
dant requires proof of cohabitation and/or a change—
a substantial change in the circumstances on the part—
behalf of the plaintiff. The court finds that the defendant
has not proven a prima facie case of either cohabitation
or a substantial change in circumstances. So, the motion
is therefore denied.’’ Immediately following the court’s
ruling, the defendant’s attorney stated that she wanted
to be heard with respect to the issue of cohabitation.
The court replied that there was ‘‘nothing else that
needs to be added . . . .’’ Then, the defendant’s attor-
ney stated that ‘‘we also had indicated a substantial
change in circumstances was part’’ of the motion. The
court replied, ‘‘I indicated, and I’ve ruled on that as
well.’’
On October 28, 2019, the defendant, pursuant to Prac-
tice Book § 11-11, filed a motion for reargument with
respect to the court’s ruling as it related to both grounds
on which the defendant relied in the motion for modifi-
cation, namely, the alleged change in the financial cir-
cumstances of the parties and the alleged cohabitation
of the plaintiff and a third party.2 The court summarily
denied the motion for reargument. This appeal followed.
I
We first address the defendant’s claim that that the
court improperly relied on Practice Book § 15-8, which
applies to civil actions and not family matters, in con-
cluding that he did not establish a prima facie case.
The defendant cannot prevail on this claim.
To prevail on this claim, the defendant must first
demonstrate that the court, in fact, relied on Practice
Book § 15-8.3 We take note of the fact that the plaintiff
did not make a motion for judgment of dismissal under
this rule of practice, nor did the court dismiss the defen-
dant’s motion. In its ruling denying the motion, the court
did not refer to this rule of practice. After stating that
it had considered evidence presented by both parties,
the court stated ‘‘that the defendant has not proven a
prima facie case of either cohabitation or a substantial
change in circumstances.’’ This statement does not estab-
lish that the court relied on Practice Book § 15-8. In
light of the circumstances in which it was made, the
court’s statement reasonably could be interpreted to
mean that, in its role as fact finder, the court had evalu-
ated the totality of the evidence and did not find the
relevant factual issues in the defendant’s favor.
It is well settled that the defendant can prevail on
appeal not by raising the possibility that an error
occurred, but by demonstrating on the basis of an ade-
quate record that the court’s ruling was erroneous. ‘‘We
do not presume error. The burden is on the appellant
to prove harmful error.’’ (Internal quotation marks omit-
ted.) Carothers v. Capozziello, 215 Conn. 82, 105, 574
A.2d 1268 (1990). The defendant has not demonstrated
that the court relied on the rule of practice at issue
and, thus, he is unable to demonstrate that its reliance
on the rule constituted error. Accordingly, the defen-
dant’s claim fails.
II
We next turn to the defendant’s three remaining
claims. For the reasons that follow, we conclude that
these three claims are unreviewable due to an inade-
quate record.
The defendant’s second claim is that, even if the court
properly relied on Practice Book § 15-8 and analyzed
whether he established a prima facie case in support
of one or both grounds set forth in his motion, the court
nonetheless improperly weighed the evidence and did
not properly consider whether he had presented suffi-
cient evidence to establish a prima facie case. The
defendant argues that the court’s role in evaluating
whether he established a prima facie case is limited to
determining whether the evidence on which he relied,
if taken as true and interpreted in the light most favor-
able to him, supported the grounds in his motion for
modification. The defendant asserts that ‘‘the trial
[court] employed the wrong standard’’ because ‘‘[its]
conclusion that these facts did not support [his] motion
for modification necessarily involved the trial court’s
weighing the evidence . . . .’’ To prevail on this claim,
the defendant must first present this court with a record
of what standard the court applied when it denied the
motion.
The defendant’s third claim is that the court abused
its discretion in concluding that he was not entitled to
the termination of his alimony obligation because the
plaintiff was cohabitating with a third party. To prevail
on this claim, the defendant must demonstrate that the
court’s legal analysis of the issue of cohabitation was
flawed or that its findings related to the issue were
clearly erroneous. See, e.g., Cushman v. Cushman, 93
Conn. App. 186, 198, 888 A.2d 156 (2006) (standard
of review applicable to cohabitation determination).
‘‘[General Statutes §] 46b-86 (b) is commonly known
as the cohabitation statute in actions for divorce. . . .
In accordance with the statute, before the payment of
alimony can be modified or terminated [on cohabitation
grounds], two requirements must be established. First,
it must be shown that the party receiving the alimony
is cohabit[ing] with another individual. If it is proven
that there is cohabitation, the party seeking to alter the
terms of the alimony payments must then establish that
the recipient’s financial needs have been altered as a
result of the cohabitation.’’ (Citation omitted; internal
quotation marks omitted.) Lehan v. Lehan, 118 Conn.
App. 685, 695, 985 A.2d 378 (2010).
To prevail on his fourth claim, that the court abused
its discretion in concluding that the defendant was not
entitled to a modification of his alimony obligation
because of a substantial change in his financial circum-
stances, the defendant must demonstrate that the court’s
legal analysis of the issue of a substantial change in
circumstances was flawed or that its findings related
to the issue were clearly erroneous. ‘‘Section 46b-86 (a)
provides that a final order for alimony . . . may be
modified by the trial court upon a showing of a substan-
tial change in the circumstances of either party. Under
that statutory provision, the party seeking the modifica-
tion bears the burden of demonstrating that such a
change has occurred. . . . To obtain a modification,
the moving party must demonstrate that circumstances
have changed since the last court order such that it
would be unjust or inequitable to hold either party to
it. Because the establishment of changed circumstances
is a condition precedent to a party’s relief, it is pertinent
for the trial court to inquire as to what, if any, new
circumstance warrants a modification of the existing
order. . . .
‘‘Once a trial court determines that there has been a
substantial change in the financial circumstances of
one of the parties, the same criteria that determine an
initial award of alimony and support are relevant to the
question of modification. . . . Thus, [w]hen presented
with a motion for modification, a court must first deter-
mine whether there has been a substantial change in
the financial circumstances of one or both of the parties.
. . . Second, if the court finds a substantial change in
circumstances, it may properly consider the motion
and, on the basis of the [General Statutes § 46b-84]
criteria, make an order for modification. . . . A finding
of a substantial change in circumstances is subject to
the clearly erroneous standard of review.’’ (Internal
quotation marks omitted.) Berman v. Berman, 203
Conn. App. 300, 304, 248 A.3d 49 (2021).
As we have explained, these three claims require this
court to review a record that adequately sets forth the
factual and legal basis of the court’s decision. We must
have a clear picture of what legal standard the court
applied in ruling on the motion. With respect to the
issue of cohabitation, we must be able to ascertain
whether the court rejected the claim because it found
that cohabitation did not occur or because it found
that cohabitation occurred but that it did not alter the
plaintiff’s financial needs. Finally, with respect to the
issue of a change in the defendant’s circumstances, we
must be able to ascertain whether the court rejected
the claim because it found that the defendant’s circum-
stances had not changed since the last court order or
because it found that circumstances had changed but
that it was not unjust or inequitable to hold the defen-
dant to the terms of the prior order.
‘‘Practice Book § 61-10 (a) provides: ‘It is the respon-
sibility of the appellant to provide an adequate record
for review. The appellant shall determine whether the
entire record is complete, correct and otherwise per-
fected for presentation on appeal.’ This court does not
presume error on the part of the trial court; error must
be demonstrated by an appellant on the basis of an
adequate record. . . . The general purpose of [the rele-
vant] rules of practice . . . [requiring the appellant to
provide a sufficient record] is to ensure that there is
a trial court record that is adequate for an informed
appellate review of the various claims presented by the
parties. . . . [A]n appellate tribunal cannot render a
decision without first fully understanding the disposi-
tion being appealed. . . . Our role is not to guess at
possibilities, but to review claims based on a complete
factual record . . . . Without the necessary factual
and legal conclusions . . . any decision made by us
respecting [the claims raised on appeal] would be
entirely speculative. . . . If an appellant fails to pro-
vide an adequate record, this court may decline to
review the appellant’s claim.’’ (Citations omitted; inter-
nal quotation marks omitted.) Berger v. Deutermann,
197 Conn. App. 421, 426–27, 231 A.3d 1281, cert. denied,
335 Conn. 956, 239 A.3d 318 (2020).
First, we conclude that the record does not contain a
proper statement of the court’s decision. The defendant
provided this court with a certified transcript of the
hearing on the motion for modification. The statements
made by the court which appear previously in this opin-
ion were excerpted from the transcript and are the full
extent of the court’s decision in this matter. The court
did not file a memorandum of decision setting forth its
reasoning in denying the motion for modification, nor
did it prepare and sign a transcript of its oral ruling.
See Practice Book § 64-1 (a).
The defendant did not take steps to obtain a tran-
scribed copy of the court’s decision, signed by the trial
court, in compliance with our rules of practice which
obligated him to file a notice pursuant to Practice Book
§ 64-1 (b) with the appellate clerk. ‘‘In cases in which
the requirements of Practice Book § 64-1 have not been
followed, this court has declined to review the claims
raised on appeal due to the lack of an adequate record.
. . . This court has held, however, that despite an inad-
equate record, such claims may be reviewed if the
certified transcript provides the basis of the trial
court’s decision.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Santoro v. Santoro,
132 Conn. App. 41, 47, 31 A.3d 62 (2011); see also
Michaels v. Michaels, 163 Conn. App. 837, 845, 136 A.3d
1282 (2016) (reviewing court may overlook lack of
signed transcript of oral decision provided that it can
readily identify court’s decision encompassing its find-
ings). Although the record before us includes the certi-
fied transcript, we cannot identify in the transcript the
factual or legal bases for denying the defendant’s motion.
Second, the defendant did not attempt to seek an
articulation of the court’s oral decision pursuant to
Practice Book § 66-5. ‘‘It is . . . the responsibility of
the appellant to move for an articulation or rectification
of the record where the trial court has failed to state
the basis of [a] decision . . . [or] to clarify the legal
basis of a ruling.’’ (Internal quotation marks omitted.)
CC Cromwell, Ltd. Partnership v. Adames, 124 Conn.
App. 191, 194, 3 A.3d 1041 (2010); see also Alliance
Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn.
191, 204, 819 A.2d 227 (2003). Because the court’s oral
decision denying the motion for modification does not
specify the factual or legal basis for the ruling, the
defendant’s failure to seek articulation is especially sig-
nificant.
The court’s oral ruling does not afford this court with
an adequate basis for review. The defendant not only
failed to comply with Practice Book § 64-1, but failed
to seek an articulation of the court’s ruling. For these
distinct reasons, we decline to consider the merits of
the defendant’s remaining claims.
The judgment is affirmed.
1
The defendant also presented testimony from a private investigator.
2
‘‘[T]he purpose of reargument is . . . to demonstrate to the court that
there is some decision or some principle of law which would have a control-
ling effect, and which has been overlooked, or that there has been a misappre-
hension of facts. . . . It also may be used to address alleged inconsistencies
in the trial court’s memorandum of decision as well as claims of law that
the [movant] claimed were not addressed by the court.’’ (Internal quotation
marks omitted.) U.S. Bank, National Assn. v. Mamudi, 197 Conn. App. 31,
47–48 n.13, 231 A.3d 297, cert. denied, 335 Conn. 921, 231 A.3d 1169 (2020).
3
Practice Book § 15-8 provides: ‘‘If, on the trial of any issue of fact in a
civil matter tried to the court, the plaintiff has produced evidence and rested,
a defendant may move for judgment of dismissal, and the judicial authority
may grant such motion if the plaintiff has failed to make out a prima facie
case. The defendant may offer evidence in the event the motion is not
granted, without having reserved the right to do so and to the same extent
as if the motion had not been made.’’