Brochard v. Brochard , 185 Conn. App. 204 ( 2018 )

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THOMAS BROCHARD v. BRITT BROCHARD
(AC 38957)
Keller, Prescott and Bright, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from certain postjudgment orders of the
trial court. The defendant previously had appealed to this court from
the judgment of the trial court denying her postjudgment motion for
contempt, in which she claimed that the plaintiff had failed to provide
her with a certain authorization form that would allow her to speak
directly with the bank that held the mortgage on the parties’ former
marital home in an effort to avoid foreclosure. This court reversed the
judgment of the trial court and remanded the matter for an evidentiary
hearing on the authorization issue. During the pendency of the defen-
dant’s first appeal, the trial court permitted her to pursue the same
contempt motion that was the subject of her appeal. The trial court
adjudicated that motion and various other postjudgment motions that
the parties previously had filed pertaining to financial issues, but which
were not part of the defendant’s first appeal. The trial court denied the
defendant’s postjudgment motions for contempt, in which she claimed
that the plaintiff had failed to pay his share of medical and extracurricular
activity expenses for the parties’ minor children, had violated certain
court orders as to the mortgage on the former marital home and had
failed to pay her one half of certain tax refunds that he had received.
The trial court also denied the defendant’s motion to modify the court’s
allocation of the parties’ payment of certain legal fees for the guardian
ad litem who had been appointed for the minor children. The present
appeal challenged those postjudgment rulings. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion for contempt, in which she claimed that the plaintiff had failed
to pay his share of the minor children’s unreimbursed medical and
extracurricular activity expenses; that court correctly determined that
the parties’ parenting agreement, which had been incorporated into the
judgment of dissolution, required the defendant to consult with the
plaintiff before she made decisions regarding extracurricular activities
and nonemergency medical treatment, there was no evidence that the
defendant indicated to the plaintiff that she had made final decisions
on medical treatment prior to his acceptance of the services, which
would have alerted him to trigger a requirement in the parenting
agreement to address medical bill disputes, and the trial court properly
denied without prejudice the defendant’s contempt motion as it related
to extracurricular activities, as the testimony was unclear as to whether
the defendant had complied with the parenting agreement regarding
notice and prior agreement for the extracurricular activity expenses
and as to which of those expenses remained unpaid, and it was not
improper for the court to permit the parties to return to court on the
issue at a later date.
2. The defendant could not prevail on her claim that the trial court improperly
denied her motion for contempt in which she alleged that the plaintiff
had violated certain orders related to the mortgage on the parties’ former
marital home:
a. The defendant’s claim that the plaintiff’s failure to execute an authori-
zation to allow her to speak to and represent him with the mortgage
loan holder was barred by the doctrine of res judicata, this court having
considered that claim on its merits and issued a final decision on the
matter in the defendant’s prior appeal to this court.
b. The defendant’s claim that the trial court erred in failing to find the
plaintiff in contempt of the trial court’s orders for his failure to reimburse
the defendant for four months of mortgage payments was unavailing;
that court properly determined that the dissolution court had not ordered
the plaintiff to pay four months of past due mortgage payments and
interest, and, thus, the plaintiff could not be held in contempt of an
order that did not exist.
3. The trial court properly declined to hold the plaintiff in contempt for his
failure to pay the defendant one half of the tax refunds that he had
received from his individual federal and state tax returns for 2010; that
court’s decision conformed to the clear and unambiguous language of
the order in the judgment of dissolution that required the parties to
share a refund that would result only from a jointly filed return for tax
year 2010.
4. The trial court did not abuse its discretion in denying the defendant’s
motion to modify the court’s order that allocated the parties’ obligation
to pay the guardian ad litem’s fees; the defendant failed to prove that
there was a substantial change in circumstances since the court’s alloca-
tion order that necessitated a reduction in her 20 percent share of the
fees, as there was no evidence concerning the amount that might still
be owed other than the amounts that the parties claimed were due on
their financial affidavits, the defendant provided no evidence of her
inability to earn income, and her assets were significantly higher in
value than the plaintiff’s assets and more than sufficient to pay the debt
that she averred she owed to the guardian ad litem.
5. The trial court did not abuse its discretion in granting the plaintiff’s motion
for a modification of child support and in reducing the plaintiff’s child
support obligation to $220 per week: that court properly found that $220
per week was the presumptive amount under the child support guidelines
and that there had been a substantial change of circumstances as a
result of the parties’ eldest son having reached the age of majority and
graduated from high school, the court’s failure to hear the defendant’s
cross motion for modification of child support as part of its hearing on
combined financial issues was not improper, as the defendant never
mentioned her pending motion, the plaintiff indicated that he was not
prepared to defend against it, and the defendant acquiesced when the
court indicated that it had heard everything it was going to hear and
that additional arguments could be made in the parties’ posttrial briefs;
moreover, if the defendant were to reclaim her stale motion for modifica-
tion, it would likely be moot, as the parties agreed on retroactivity only
as to the plaintiff’s motion for modification, the defendant would be
unable to seek a prospective modification because both minor children
had attained the age of eighteen, and the court’s entry, upon reconsidera-
tion, of a child support order in the amount of $296 per week was not
an abuse of discretion, as it was part of the changes that the defendant
had requested in her motion to reargue.
6. The defendant’s claim that the trial court improperly failed to order the
plaintiff to pay her the full amount of past due alimony for 2012 was
unavailing; that court corrected an oversight in its initial decision after
both parties stipulated that the plaintiff owed the defendant $796.85 for
2012 past due alimony, and that ruling reflected that the defendant was
awarded the full amount that she claimed was owed to her.
Argued April 12—officially released October 2, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven and transferred to the Regional
Family Trial Docket at Middletown, where the matter
was tried to the court, Gordon, J.; judgment dissolving
the marriage and granting certain other relief; there-
after, the court issued certain orders; subsequently, the
defendant filed a motion for contempt; thereafter, the
court, Gould, J., declined to rule on a certain issue
related to the defendant’s motion for contempt; subse-
quently, the court, Gould, J., denied the defendant’s
motion to reargue, and the defendant appealed to this
court; thereafter, the court, Gould, J., denied the defen-
dant’s motions for contempt and for modification of
the allocation of the parties’ payments of certain guard-
ian ad litem fees, and granted the plaintiff’s motion
for modification of child support and the defendant’s
motion for contempt as to certain alimony payments;
subsequently, the defendant filed an amended appeal;
thereafter, the court, Gould, J., granted the defendant’s
motion to reargue and issued certain orders; subse-
quently, the defendant filed a second appeal with this
court; thereafter, the court, Gould, J., modified its order
of child support; subsequently, this court reversed the
judgment with respect to the first appeal and remanded
the case for further proceedings. Affirmed.
Britt Brochard, self-represented, the appellant
(defendant).
Thomas Brochard, self-represented, the appellee
(plaintiff).
Opinion
KELLER, J. The defendant, Britt Brochard, appeals
from the postdissolution judgment of the trial court
rendered after a hearing on financial issues raised by
the parties in multiple motions for contempt and modifi-
cation.1 The self-represented defendant’s brief is not a
model of clarity,2 but after a thorough review of the
record and the parties’ briefs, we have divined that the
defendant claims that the court erred in (1) denying her
motion for contempt alleging that the plaintiff, Thomas
Brochard, had failed to pay his share of the minor chil-
dren’s medical and extracurricular activity expenses;
(2) denying her motion for contempt alleging that the
plaintiff had violated orders related to the mortgage on
the former marital home; (3) denying her motion for
contempt alleging that the plaintiff had failed to pay
her one half of the amounts of 2010 tax refunds he
received; (4) denying her motion for modification of
the court’s order allocating the parties’ obligation per-
taining to payment of the guardian ad litem’s fees; (5)
granting the plaintiff’s motion for modification of child
support, thereby decreasing his obligation, and failing
to consider her cross motion for modification, which
sought an increase in the amount of child support; and
(6) granting her motion for contempt regarding certain
alimony payments, but failing to order the plaintiff to
pay her the full amount she was owed. We affirm the
judgment of the trial court.
The following facts, as determined by multiple judges
who have presided over pertinent proceedings in this
case, and procedural history are relevant to this appeal.
On July 6, 2011, the court, Gordon, J., dissolved the
parties’ marriage. In its memorandum of decision, the
court found that the parties were married on August
27, 1995, in Ridgefield. They have two children, born
in 1997 and 1999.3 The plaintiff initiated the divorce
action in 2008, following the parties’ separation. The
court found that the marriage had irretrievably broken
down and issued the following orders relevant to this
appeal. It ordered the plaintiff to pay to the defendant
child support in the amount of $342 per week, in accor-
dance with the child support guidelines, on the basis
of his yearly income of $85,441.72. It also ordered that
he maintain medical and dental insurance for the benefit
of the minor children if such insurance coverage was
available through his employment. Additionally, the
court ordered each of the parties to pay 50 percent of
all unreimbursed, uninsured health related expenses
for the minor children. The defendant was to submit
the bill or statement for such expenses to the plaintiff
within one week of receipt, and he was to pay it within
one week. Each of the parties was responsible for one
half of all reasonably incurred extracurricular expenses
for the children. The court further ordered that the
plaintiff pay to the defendant alimony of $350 per week
until the earliest to occur of the following events: the
death of either party, the remarriage of the defendant,
June 30, 2021, or as otherwise provided for by law. The
court stated that its order was subject to immediate
wage withholding. As additional alimony, and subject
to the same termination contingencies as the weekly
order of alimony, the plaintiff was to pay, quarterly, 30
percent of all gross income earned from wages, self-
employment, commissions, incentives, bonuses or
other payment plan in excess of $90,000 per year
($22,500 per quarter), but less than $150,000 per year,
and 20 percent of any such amounts between $150,000
and $200,000 per year. Every quarter, the plaintiff was
to forward to the defendant proof of his earnings for
the previous quarter together with any payment due.
The court ordered the parties to file a joint tax return
for 2010. The plaintiff was responsible for any taxes
due and owing for that year, and any refund would be
divided equally. The court awarded all right, title and
interest in the marital home to the defendant, who
would be responsible for all costs associated with
the home.
The court also approved and incorporated into the
judgment the terms of a parenting agreement between
the parties dated March 25, 2011, which established
joint legal custody of the children with primary resi-
dence with the defendant.
Protracted postdissolution proceedings commenced
almost immediately after the court rendered the judg-
ment of dissolution. In setting forth some of the postdis-
solution procedural history, we rely, in part, on our
earlier opinion in Brochard v. Brochard, 165 Conn. App.
626, 140 A.3d 254 (2016) (Brochard I).
‘‘On July 20, 2011, the defendant filed a postjudgment
motion for order, alleging that the plaintiff had not made
payments on the mortgage on the family home since
March, 2011. The mortgage was solely in his name. The
defendant requested that ‘the plaintiff be required to
bring the mortgage current, including all attorneys’ fees
and other charges.’ In the alternative, the defendant
move[d] that the plaintiff be required to immediately
provide the bank with authorization to speak directly
to the defendant, timely file all necessary paperwork
in the foreclosure action to allow the parties to partici-
pate in the foreclosure mediation . . . attend the fore-
closure mediation sessions along with the defendant,
and . . . agree to any resolution the defendant comes
to with the bank.’’ Id., 629. The plaintiff objected to
this motion.
Judge Gordon heard the motion for order, granting
it in part and denying it in part, on August 12, 2011.
The nature of these orders is discussed more thoroughly
in part II A of this opinion.
On February 5, 2013, the plaintiff filed a motion to
modify custody and child support, to which the defen-
dant objected. The plaintiff claimed a substantial
change in circumstances making it in the children’s best
interests for him to have primary physical custody and
also sought a modification of his child support obliga-
tion. On April 26, 2013, the defendant filed a motion
for modification seeking an increase in the child support
order. On May 2, 2013, the parties agreed in writing
that the plaintiff’s motion would not go forward, but
further agreed that he could seek retroactivity of any
subsequent order(s) regarding child support. That writ-
ten agreement was approved and made an order of the
court. It indicates: ‘‘The [plaintiff’s] motion to modify
child support shall go off with orders retroactive to
today. However, the [plaintiff] retains the right to seek
retroactivity to the [date of] filing of the motion.’’4
Also on May 2, 2013, as part of the same written
agreement the parties agreed that a guardian ad litem
would be appointed for the parties’ then two minor
children. They agreed that the percentage of payment
for the guardian ad litem’s legal fees would be argued
upon completion of some outstanding discovery. Attor-
ney Susan E. Nugent was appointed as guardian ad
litem. On May 24, 2013, the defendant moved that the
plaintiff be ordered to pay the entirety of Nugent’s fees.
On February 6, 2014, the court, Munro, J., ordered that
the plaintiff pay 80 percent and the defendant pay 20
percent of Nugent’s fees. Judge Munro found that
Nugent’s fees totaled $5400, and that the plaintiff
already had paid $2500 toward that amount as a
retainer. The defendant had paid nothing despite
Nugent’s request of a similar retainer from her. The
court ordered that the plaintiff would be responsible
for $4320 and that the defendant would be responsible
for $1080. Both parties were ordered to make payments
to Nugent within fourteen days.
On June 16, 2014, the defendant moved for an order
reallocating the percentage payment obligations
ordered by Judge Munro, alleging that she did not have
sufficient income or assets to continue to pay her 20
percent share. The plaintiff objected to the defendant’s
motion for order and requested that either the defen-
dant pay all of Nugent’s fees, or, in the alternative, that
the parties continue to pay pursuant to Judge Munro’s
allocated order.
On April 26, 2013, the defendant filed a motion for
contempt with respect to the payment of medical and
activity expenses, claiming that the plaintiff had failed
to pay his 50 percent share of some of the children’s
extracurricular expenses and unreimbursed medical
and dental expenses, which he was required to pay
pursuant to the parenting agreement.
On April 16, 2014, the defendant filed a motion to
compel, which supplemented an earlier motion to com-
pel she had filed on March 24, 2014 claiming, inter alia,
that the plaintiff should be ordered to pay her one half
of the federal and state tax refunds he had received for
the year 2010 and to reimburse her for an estimated
tax payment she made that year, which she claimed was
ordered by Judge Gordon in the dissolution judgment.
‘‘On November 13, 2013, the defendant filed a motion
for contempt, claiming that the plaintiff had violated
Judge Gordon’s August 12, 2011 order [with respect to
the mortgage on the marital home] by, inter alia, failing
to execute an authorization allowing the defendant to
speak with and represent the plaintiff with the mortgage
loan holder, Wells Fargo, as the mortgage has been in
the name of the plaintiff solely; said authorization to
make [the] defendant the plaintiff’s authorized agent
for conversing, negotiating, entering into an agreement,
all that kind of stuff with Wells Fargo to modify the
mortgage loan to avoid foreclosure. Said authorization
was to be specific that she has the authority.’’ (Internal
quotation marks omitted.) Brochard I, supra, 165 Conn.
App. 631.
In this contempt motion, the defendant further
claimed that she had successfully renegotiated the
mortgage loan, cancelled all the late fees and reduced
the monthly payments, but that the plaintiff deliberately
had interfered and caused the renegotiated plan to be
cancelled, thereby forcing imminent foreclosure of the
home. She further alleged that the plaintiff had violated
other orders of Judge Gordon that he would be responsi-
ble for any attorney’s fees, interest and/or penalties
relating to any foreclosure action on the marital home,
that he provide the defendant with any documentation
he received from the lender bank, and that he bring the
outstanding mortgage on the family home current for
the months of March through July, 2011.
‘‘The defendant’s motion for contempt [regarding the
mortgage] was heard by the court, Munro, J., on Novem-
ber 14, 2013. Judge Munro examined an authorization
agreement drafted by the defendant’s attorney and
asked if the plaintiff consented to it. The plaintiff’s
attorney replied that he did not, due to language that
stated that the defendant would ‘have full and complete
authority to negotiate, agree and execute proposed set-
tlements with said mortgage[e].’ The plaintiff was con-
cerned that this language would permit the defendant
to extend the term of the mortgage, thereby further
tying up his ability to obtain a new mortgage for a house
of his own. The court subsequently told the defendant
that ‘if he signs something that allows you to negotiate,
it should not be something that puts him on the hook
for any more liability than he has now. Do you under-
stand that?’ The defendant replied that she believed
that the intent of Judge Gordon’s order was to allow
modification of the loan, and that Judge Munro should
consult the full transcript containing Judge Gordon’s
order. Thereupon, Judge Munro stated: ‘I’m going to
stop. I hear you. This is a complicated problem. It’s
not going to be dealt with on short calendar with an
audience full of people waiting. I’m going to give you
a three day hearing, and this will be rolled into the three
day hearing.’ Following the short calendar hearing, on
November 26, 2013, the plaintiff filed an objection to
the defendant’s motion for contempt, attaching an
authorization form and asserting that ‘Judge Munro has
already told the defendant that Judge Gordon did not
intend that the defendant could expand the plaintiff’s
exposure under the new mortgage.’
‘‘The case subsequently was transferred to the
regional family trial docket. At a hearing on February
6, 2014, regarding the transfer, Judge Munro asked, ‘[a]ll
right, and the motions I sent to regional are motions
regarding modification of custody. Any financial
motions at all?’ The defendant replied: ‘A number of
financial motions, there’s a motion outstanding for con-
tempt on not paying half the children’s expenses; con-
tempt on medical expenses; contempt on alimony; [and]
contempt on not signing the authorization for me to
be able to modify the home.’ Judge Munro stated, ‘I
remember that.’ The parties then began discussing the
plaintiff’s financial disclosure and did not mention the
contempt motions further.
‘‘The court, Gould, J., held a hearing on various mat-
ters on June 10, 2014. After concluding the custody and
visitation portion of the hearing, Judge Gould indicated
that he intended to turn to financial issues. The defen-
dant stated that she wished to proceed to the authoriza-
tion issue. The plaintiff objected stating that he needed
a few days to prepare. Judge Gould queried whether the
authorization issue was before him or in the foreclosure
court. The defendant replied that it was before him,
after which Judge Gould stated that they would proceed
with outstanding motions on financial issues at a
later date.
‘‘The defendant filed a motion for an emergency hear-
ing on August 1, 2014, in which she asserted that the
court never returned to the authorization issue. This
motion was heard by Judge Gould on September 11,
2014. Judge Gould stated that it was his understanding
that there was a ruling that the authorization did not
have to be provided. The defendant protested that Judge
Munro’s ruling indicated otherwise. Judge Gould then
stated, ‘I’m not indicating [Judge Munro] ruled on [the
authorization]. I’m indicating it was ruled on previously;
it did not have to be provided.’
‘‘The defendant filed a motion to reargue on October
3, 2014, asserting that Judge Gould’s ruling of Septem-
ber 11, 2014, was based on a misapprehension of fact.
She contended that Judge Gould incorrectly believed
that the motion for contempt regarding the authoriza-
tion had previously been ruled on. . . .
‘‘Judge Gould considered the defendant’s motion to
reargue on November 6, 2014. He stated that ‘[t]his
court said there was a prior ruling the authorization for
modification of the mortgage would not have to be
provided, and I have a specific recollection for issuing
that order.’ The plaintiff asserted that the issue had
been decided by three judges . . . . The defendant
asserted that the transcripts demonstrated that the
issue had not been ruled on. The plaintiff quoted the
statement by Judge Munro that the plaintiff should not
be on the hook for more liability. Judge Gould then
denied the defendant’s motion to reargue with preju-
dice, noting that she could take an appeal if she chose.’ ’’
(Footnotes omitted.) Id., 631–35. The defendant filed
an appeal on November 24, 2014.
Despite the pendency of the appeal in Brochard I,
the defendant, rather than await a ruling by this court,
persisted in seeking to have the trial court decide
whether the plaintiff was in contempt for violating of
Judge Gordon’s August 12, 2011 order regarding autho-
rization of a mortgage modification.
The court, Gould, J., held a consolidated hearing and
addressed all of the foregoing motions. The hearing
took place on April 21, April 22, and July 10, 2015. On
April 22, 2015, the defendant advised the court that she
wanted to pursue the exact same contempt motion that
the court had addressed on November 6, 2014, even
though it was still the subject of an appeal. Although
the plaintiff objected on the ground that this particular
issue was still on appeal, the court permitted the defen-
dant to present her claim that although she since had
been able to assume the mortgage, the plaintiff was in
contempt for not cooperating with her efforts to modify
or assume the mortgage, and pursuant to Judge Gor-
don’s August 12, 2011 orders, he was liable to her for
costs, including interest, penalties, and fees she had
incurred to prevent a foreclosure and eventually rein-
state and assume the loan.
On May 28, 2015, the defendant filed an addendum
to her motion to modify child support. The court gave
the parties three weeks to file additional information
regarding the defendant’s claim on the tax refund. The
parties also were permitted to file posttrial briefs and
attach additional ‘‘exhibits’’ to them. At the July 10,
2015 hearing, the court denied the defendant’s request
to submit additional evidence, but it indicated that it
was giving both parties the opportunity to reinforce
their positions and arguments in their briefs.
On September 28, 2015, Judge Gould issued a memo-
randum of decision that included a decision on the
defendant’s motion for contempt regarding the mort-
gage. Rather than marking the motion ‘‘off,’’ as having
previously been decided, he ruled on it. His decision
does not reference the statement of Judge Gordon
related to the authorization, but it did note that the
plaintiff alleged that ‘‘ ‘the court, Munro, J., has pre-
viously ordered that the plaintiff did not have the duty
to agree to a mortgage modification that would substan-
tially increase the length of indebtedness to the bank.’
[The court’s decision also stated] that ‘[in] his objection,
the plaintiff further alleges and provides evidence of
a September 1, 2011 letter from his attorney to the
defendant [that] enclosed the requested authorization
referred to above, and further alleging that the defen-
dant had been directly and actively dealing with the
lender since September, 2011.’ The decision concludes
that ‘the recitation of the court’s orders and findings
made by the plaintiff to be accurate.’ The undersigned
also finds that the plaintiff provided the subject authori-
zation to the defendant.’’ Brochard I, supra, 165 Conn.
App. 636.
In addition to denying the defendant’s motion for
contempt concerning the mortgage on the marital
home, in its September 28, 2015 decision, relevant to
this appeal, the court granted the plaintiff’s motion for
modification of child support, granted the defendant’s
motion for contempt with respect to the payment of
certain alimony payments, denied the defendant’s
motion to compel and to hold the plaintiff in contempt
for failing to pay her half of the tax refunds he received
for the year 2010, denied her motion to modify the
allocation of the payment obligations for the guardian
ad litem’s fees, and denied her motion for contempt
regarding the children’s activities and unreimbursed
medical expenses.5
On October 19, 2015, the defendant amended her
prior pending appeal in Brochard I, claiming error only
in the court’s consideration of the mortgage authoriza-
tion issue. Prior to the filing of this appeal, this court
heard oral argument on Brochard I. This court issued
its decision on May 24, 2016, and reversed the judgment
with respect to Judge Gould’s conclusion that, due to
prior court rulings, the plaintiff could not be held in
contempt for failing to provide an adequate authoriza-
tion. Id., 642. This court ruled that neither Judge Munro
nor Judge Gould had ever afforded the defendant an
opportunity to be heard on whether the plaintiff’s prof-
fered authorization met the requirements ordered by
Judge Gordon and that the issue had never been
decided. Id., 640. The case was remanded for an eviden-
tiary hearing only on that issue, consistent with our
opinion. Id., 642.
Upon returning to the trial court, on November 2,
2016, the defendant, through counsel, filed a motion to
reargue/reconsider twelve aspects of the court’s deci-
sion. After a hearing on the motion to reargue/recon-
sider on February 11, 2016, the court ruled from the
bench on several issues and later, on March 16, 2016,
issued a memorandum of decision in which it altered
its modified order of weekly child support payable by
the plaintiff from $220 to $296, effective June 19, 2015,
after hearing argument from the defendant that the
court had made an error in the calculation of the plain-
tiff’s net income. The court also corrected the amount
it found that the plaintiff owed to the defendant for
past due 2012 alimony, but denied all of the defendant’s
other requests to reconsider its decision.
This appeal was filed on March 2, 2016. After filing
this appeal, the defendant amended her then pending
appeal in Brochard I to claim that the court erred in
denying her motion for contempt relative to the mort-
gage authorization on September 28, 2015, because it
failed to provide her with a full evidentiary hearing; the
defendant has raised the identical claim in this appeal.
Additional facts and procedural history will be set forth
as necessary.
I
We first address the defendant’s claim that the court
erred in denying her motion for contempt alleging that
the plaintiff had failed to pay his share of the minor
children’s medical and extracurricular activity
expenses. Specifically, the defendant claims that the
plaintiff owes her $242.50 for his share of nonemer-
gency unreimbursed medical expenses and $2129.13 for
his share of activity expenses that he is required to pay
pursuant to the parties’ parenting agreement of March
25, 2011.
The defendant asserts that the court erred in not
finding the plaintiff in contempt because it misinter-
preted the parties’ parenting agreement, which, thus,
requires us to examine that document to ascertain the
meaning of the terms contained therein. At the outset,
we note that the applicable standard of review requires
a two part inquiry. ‘‘First, we must determine whether
the agreement entered into between the parties in con-
junction with the dissolution of their marriage was clear
and unambiguous. . . . Second, if we find that the
court accurately assessed the intent of the parties
regarding the [payment of medical and activity
expenses for the minor children], we must then decide
whether the court correctly determined that the [plain-
tiff] had [not] wilfully violated its terms.’’ (Internal quo-
tation marks omitted.) Dowd v. Dowd, 96 Conn. App.
75, 79, 899 A.2d 76, cert. denied, 280 Conn. 907, 907
A.2d 89 (2006).
Regarding the first inquiry, any agreement, including
an agreement that is incorporated into a dissolution
judgment is regarded as a contract. Accordingly, our
resolution of the defendant’s claim is guided by the
general principles governing the construction of con-
tracts. ‘‘A contract must be construed to effectuate the
intent of the parties, which is determined from the lan-
guage used interpreted in the light of the situation of
the parties and the circumstances connected with the
transaction. . . . [T]he intent of the parties is to be
ascertained by a fair and reasonable construction of
the written words and . . . the language used must be
accorded its common, natural and ordinary meaning
and usage where it can be sensibly applied to the subject
matter of the contract.’’ (Internal quotation marks omit-
ted.) Lisko v. Lisko, 158 Conn. App. 734, 738–39, 121
A.3d 722 (2015). ‘‘Where the language of the contract
is clear and unambiguous, the contract is to be given
effect according to its terms.’’ (Internal quotation marks
omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Trans-
mission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277
(2000). ‘‘Although ordinarily the question of contract
interpretation, being a question of the parties’ intent,
is a question of fact . . . [when] there is definitive con-
tract language, the determination of what the parties
intended by their . . . commitments is a question of
law [over which our review is plenary].’’ (Internal quota-
tion marks omitted.) Bristol v. Ocean State Job Lot
Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d
837 (2007).
The ‘‘determination as to whether language of a con-
tract is plain and unambiguous is a question of law
subject to plenary review.’’ (Internal quotation marks
omitted.) Perez v. Carlevaro, 158 Conn. App. 716, 722,
120 A.3d 1265 (2015). ‘‘A court will not torture words
to import ambiguity where the ordinary meaning leaves
no room for ambiguity . . . . Similarly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms.’’ (Internal quotation marks
omitted.) Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d
301 (2008).
As to the second inquiry, ‘‘[a] finding of indirect civil
contempt must be established by sufficient proof that
is premised upon competent evidence presented to the
trial court . . . . A finding of contempt is a factual
finding. . . . We will reverse that finding only if we
conclude the trial court abused its discretion.’’ (Internal
quotation marks omitted.) Legnos v. Legnos, 70 Conn.
App. 349, 352–53, 797 A.2d 1184, cert. denied, 261 Conn.
911, 806 A.2d 48 (2002). To the extent that the defendant
challenges the factual findings the court relied on in
making its determination that the plaintiff was not in
contempt, ‘‘we apply our clearly erroneous standard,
which is the well settled standard for reviewing a trial
court’s factual findings.’’ Id., 353 n.2. The defendant, as
the party seeking a finding of indirect civil contempt,
has the burden of establishing by clear and convincing
evidence that the plaintiff violated an order of the court.
See Brody v. Brody, 315 Conn. 300, 318–19, 105 A.3d
887 (2015).
We first examine the language of the parenting
agreement. The provisions of the parties’ parenting
agreement concerning the children’s unreimbursed
medical expenses and activities include paragraph 1,
which states, in pertinent part: ‘‘It shall be the intent
of the joint [legal] custody arrangement to allow each
parent to have a full and active role in providing a sound
social, economic, educational, religious and moral envi-
ronment for the minor children.6 To this end, the [defen-
dant] shall consult with the [plaintiff] on all non-
emergency matters affecting the health, safety, welfare
and education of the minor children, before such deci-
sions involving the minor children are taken. These
matters shall include, but not be limited to, such sub-
stantial issues as educational programs, camp, extracur-
ricular activities and medical treatment, etc. If the
[plaintiff] disagrees on the resolution of the issue, the
parties shall seek the assistance of a co-parenting thera-
pist (chosen by the guardian ad litem) in an effort to
resolve the disputed issue. . . . The parties shall
adhere to the following procedures when dealing with
a disputed issue:
‘‘a. After discussion, the [defendant] shall indicate to
the [plaintiff] her final decision. The [plaintiff] shall
within twenty-four hours, inform the [defendant] that he
wishes to trigger the co-parenting therapy requirement.
‘‘b. The [plaintiff] shall make an initial joint appoint-
ment with the therapist, said appointment to take place
within seven days of the time of his trigger to this pro-
vision.
‘‘c. At the conclusion of the initial appointment, and
at the recommendation of the therapist, the parties may
meet for a second appointment, within seven days.
‘‘If the parties are unable to reach a joint decision
after the meeting with the therapist, the [defendant]
shall be allowed to make the final decision. The plaintiff
. . . may elect to have a court hearing on the issue;
however, this shall not delay the [defendant] from mak-
ing the decision prior to any hearing.’’ (Footnote added.)
Also relevant to the children’s activities is paragraph
5 of the parenting agreement, which states, in pertinent
part: ‘‘The parties shall enroll the children in agreed
upon activities for the children and shall share the cost
of the same. Consent for the children to participate in
an activity shall not be unreasonably withheld.’’
We first address the defendant’s claim that the plain-
tiff violated his obligation to share equally the cost
of the children’s unreimbursed medical expenses. The
defendant is seeking an order requiring the plaintiff to
reimburse her for $42.50 for eye examinations and/or
corrective lenses by Shoreline Eye Associates, P.C., and
$200 for a psychiatric consultation with a Dr. Paul El-
Fishawy. She claims that the court misinterpreted the
parenting agreement and thus made an ‘‘unwarranted
modification’’ of the terms of the dissolution judgment.
The defendant contends that the plaintiff agreed to
these treatments, and even if he did not, the parenting
agreement does not require her to notify and obtain the
consent of the plaintiff before incurring expenses for
nonemergency medical treatment or activities for the
children. We disagree.
A plain reading of the applicable provisions in the
parenting agreement, according the language its com-
mon, natural and ordinary meaning and usage, is that
it obligates the defendant to notify the plaintiff of her
intent to seek nonemergency medical treatment for the
children. Only after the plaintiff has been given prior
notice and, after some discussion, indicates that he
disagrees, can the defendant make a decision. Once that
occurs, the plaintiff has twenty-four hours to inform
the defendant that he wants to continue to dispute that
decision and trigger the coparenting therapy require-
ment. If he does so, and the appointment takes place
within seven days and the parties are still unable to
reach a joint decision, the defendant is then allowed
to make the final decision and incur the contested
expense, subject to the plaintiff’s right to return to court
for a final resolution if he so chooses.
The court correctly determined that paragraph 1 of
the parenting agreement required the defendant to con-
sult with the plaintiff regarding all nonemergency mat-
ters affecting the health, safety, welfare and education
of the minor children, before any decisions involving
the minor children were made by the defendant. These
matters included educational programming, extracur-
ricular activities and nonemergency medical treatment.
The court found that the record was ‘‘replete with [the
defendant’s] inability, or unwillingness, to communi-
cate with the plaintiff before undertaking any major
decisions regarding the [childrens’] care.’’7 It further
found that crucial e-mail evidence submitted during the
hearing showed that the plaintiff did not agree with
undertaking the defendant’s claimed medical expenses
and wanted to research and/or discuss the matter fur-
ther with the provider and the defendant.
The defendant asserts that the plaintiff should have
triggered the coparenting therapy requirement in the
parenting agreement to address medical bill disputes,
but that provision states: ‘‘After discussion, the [defen-
dant] shall indicate to the [plaintiff] her final decision.
The [plaintiff] shall within twenty-four hours, inform the
[defendant] that he wishes to trigger the co-parenting
therapy requirement.’’ There is no evidence that the
defendant gave any indication to the plaintiff that she
had made her final decisions on medical treatment prior
to the defendant’s acceptance of the services at issue
that would have alerted him that he needed to trigger
this requirement.
Essentially, the defendant was putting the cart before
the horse, incurring expenses for the children without
consulting with the plaintiff and then demanding pay-
ment from him. Although the defendant is correct that
the plaintiff must not unreasonably withhold his
approval of such expenses, it is not possible to unrea-
sonably withhold approval of an action if one has no
notice of it whatsoever or has not had sufficient time
to consider it.
We agree with the court’s determination that the par-
enting agreement unambiguously requires the defen-
dant either to obtain the plaintiff’s agreement or to
have the type of discussion contemplated by the trigger
provision before the defendant could incur nonemer-
gency medical expenses for which she would seek reim-
bursement from the plaintiff. The court did not err in
denying the portion of the defendant’s motion for con-
tempt regarding her claimed medical expenses.
As to the children’s extracurricular activities, the
defendant acknowledges that she was required to
obtain the plaintiff’s agreement prior to enrolling the
children in those activities. The court noted that the
defendant provided the court with an exhibit that con-
tained a list of activities with a total cost of $2129.13.
The court, however, found that the testimony was
unclear as to whether the defendant complied with the
parenting agreement provisions regarding notice and
prior agreement for those expenses and which, if any,
of the claimed expenses remain unpaid.8 In denying
without prejudice the portion of the defendant’s motion
related to the children’s extracurricular activities, the
court essentially determined that the defendant had not
proven contempt of court on the part of the plaintiff
by clear and convincing evidence. It also indicated that
the parties could return to court on this issue at a
later date and provide additional evidence regarding
any alleged agreement(s) and/or failures to pay. We
agree with the court that the defendant failed to meet
her burden to prove contempt, and we conclude that
the court was more than fair in leaving the door open
for her to make a later attempt at proving her claims
as to the activity expenses.
We find no abuse of discretion on the part of the
court in denying the defendant’s motion for contempt
regarding the children’s unreimbursed nonemergency
medical and activity expenses.
II
We next address the defendant’s claim that the court
erred in denying her motion for contempt alleging that
the plaintiff had violated orders related to the mortgage
on the former marital home. The defendant appeals
from the denial of several of her claims in this motion,
in which she alleged that the plaintiff had violated Judge
Gordon’s August 12, 2011 orders with respect to the
mortgage on the marital home. In this contempt motion,
the defendant claimed that she had successfully renego-
tiated the mortgage loan, cancelled all the late fees and
reduced the monthly payments, but that the plaintiff
deliberately had interfered and caused the renegotiated
plan to be cancelled, thereby forcing imminent foreclo-
sure of the home. She further alleged that the plaintiff
had violated other orders of Judge Gordon that the
plaintiff would be responsible for any attorneys’ fees,
interest and/or penalties relating to any foreclosure
action on the marital home, and requiring that he bring
the outstanding mortgage on the family home current
for the months of March through July, 2011.
A
We begin with the defendant’s claim that the plaintiff
failed to execute an authorization allowing the defen-
dant to speak with and represent the plaintiff with the
mortgage loan holder, Wells Fargo, as the mortgage has
been in the name of the plaintiff solely. For the following
reasons, we decline to reach the merits of this claim.
The following additional facts apply to this claim.
Shortly after the judgment of dissolution was rendered,
on August 12, 2011, Judge Gordon held a hearing on
the defendant’s motion for an order. The motion for an
order requested that the plaintiff be required to bring
the mortgage current, including all attorney’s fees and
other charges. The defendant alleged that the mortgage
had gone unpaid since April, 2011. In the alternative,
the defendant moved for an order requiring the plaintiff
to immediately provide the bank with authorization to
speak directly to the defendant, timely file all necessary
paperwork in the foreclosure action to allow the parties
to participate in foreclosure mediation, attend media-
tion sessions with the defendant, and agree to any reso-
lution that the defendant came to with the bank.
At the August 12, 2011 hearing before Judge Gordon,
the plaintiff’s attorney presented an authorization he
claimed satisfied the defendant’s request. The court
rejected this proffered authorization and ruled that in
order to effectuate a modification of the mortgage, the
authorization ‘‘has to say more than converse and nego-
tiate. It has to say that she’s his authorized agent for
conversing, negotiating, entering into an agreement, all
that kind of stuff. I mean, they’re not going to let her—
they—I mean, it’s got to be specific that she has the
authority.’’
As we noted previously in this opinion in setting forth
the procedural history of this case, the particular ruling
in the court’s September 28, 2015 decision on whether
the plaintiff ever provided a proper authorization to the
defendant in conformity with Judge Gordon’s order was
recently the subject of a prior appeal, Brochard I, in
which we reversed the judgment with respect to the
decision by Judge Gould for having failed to provide
the defendant a full evidentiary hearing on the authori-
zation issue. See Brochard I, supra, 165 Conn. App.
641–42.
The defendant successfully argued to this court that
Judge Gould had not afforded her an opportunity to be
heard on whether the plaintiff’s proffered authorization
met the requirements ordered by Judge Gordon. This
court held that it was improper for Judge Gould to have
issued his September 28, 2015 ruling finding that the
plaintiff was not in contempt because he had failed
to conduct an evidentiary hearing on the defendant’s
motion despite her request.9 Id., 641.
This court issued its decision in Brochard I on May
24, 2016, and reversed the judgment with respect to
Judge Gould’s conclusion that the plaintiff could not
be held in contempt for failing to provide an adequate
authorization. The case was remanded for an eviden-
tiary hearing on the defendant’s motion consistent with
our decision. Id., 642. There is nothing in the record
that shows or even suggests that this hearing has ever
taken place. In the context of the present appeal,
applying the doctrine of res judicata, we decline to
address an appellate claim that this court previously
has decided.10
We are cognizant of our sua sponte invocation of the
doctrine of res judicata and that, generally, res judicata
must be specifically pleaded. ‘‘This general rule, how-
ever, yields when, as here, the circumstances reveal
that a remand ‘would simply set judicial wheels unnec-
essarily spinning, only to remain at the same end of
the road.’ ’’ Tucker v. Pace Investments Associates, 32
Conn. App. 384, 391–92, 629 A.2d 470, cert. denied, 228
Conn. 906, 634 A.2d 299 (1993), cert. denied, 510 U.S.
1196, 114 S. Ct. 1305, 127 L. Ed. 2d 657 (1994). The
circumstances in the present case require us to apply
res judicata sua sponte, despite the rule that, generally,
it must be pleaded.
‘‘[T]he doctrine of res judicata, or claim preclusion,
[provides that] a former judgment on a claim, if ren-
dered on the merits, is an absolute bar to a subsequent
action on the same claim. A judgment is final not only
as to every matter which was offered to sustain the
claim, but also as to any other admissible matter which
might have been offered for that purpose. . . . The
rule of claim preclusion prevents reassertion of the
same claim regardless of what additional or different
evidence or legal theories might be advanced in support
of it. . . . Furthermore, [t]he judicial doctrines of res
judicata and collateral estoppel are based on the public
policy that a party should not be able to relitigate a
matter which it already has had an opportunity to liti-
gate. . . . Stability in judgments grants to parties and
others the certainty in the management of their affairs
which results when a controversy is finally laid to rest.
. . . The conservation of judicial resources is of para-
mount importance as our trial dockets are deluged with
new cases daily. We further emphasize that where a
party has fully and fairly litigated his claims, he may
be barred from future actions on matters not raised in
the prior proceeding. But the scope of matters pre-
cluded necessarily depends on what has occurred in
the former adjudication. . . .
‘‘The transactional test measures the preclusive effect
of a prior judgment, which includes any claims relating
to the cause of action that were actually made or might
have been made. . . . A cause of action for the purpose
of the transactional test is the group of facts which is
claimed to have brought about an unlawful injury to
the plaintiff . . . . The fact that a prior judicial deter-
mination may be flawed . . . is ordinarily insufficient,
in and of itself, to overcome a claim that otherwise
applicable principles of res judicata preclude it from
being collaterally attacked. . . . If the judgment [in the
prior action] is erroneous, the unsuccessful party’s rem-
edy is to have it set aside or reversed in the original
proceedings. . . . It is well settled that [a] judgment
may be final in a res judicata sense as to a part of an
action although litigation continues as to the rest. . . .
Thus, res judicata may operate to preclude a claim
decided in a previous proceeding within the same case.
. . . [F]or purposes of res judicata, a judgment will
ordinarily be considered final if it is not tentative, provi-
sional, or contingent and represents the completion of
all steps in the adjudication of the claim by the court,
short of any steps by way of execution or enforcement
that may be consequent upon the particular kind of
adjudication.’’ (Citations omitted; internal quotation
marks omitted.) Honan v. Dimyan, 63 Conn. App. 702,
706–708, 778 A.2d 989, cert. denied, 258 Conn. 942, 786
A.2d 430 (2001).
The defendant’s claim pertaining to the plaintiff’s fail-
ure to authorize her to speak with Wells Fargo was
fully briefed by the parties in Brochard I. This court
considered the claim on its merits in Brochard I and
issued a final decision on the matter. The claim is there-
fore barred by that decision and we will not allow the
parties to relitigate the matter in this appeal. See, e.g.,
In re Zen T., 151 Conn. App. 724, 730, 95 A.3d 1258
(due to application of res judicata doctrine, appellant
barred from relitigating claim raised in prior appeal),
cert. denied, 314 Conn. 911, 100 A.3d 403 (2014), cert.
denied sub nom. Heather S. v. Commissioner of Chil-
dren & Families, U.S. , 135 S. Ct. 2326, 191
L. Ed. 2d 991 (2015); Oliphant v. Commissioner of
Correction, 146 Conn. App. 499, 527, 79 A.3d 77 (same),
cert. denied, 310 Conn. 963, 83 A.3d 346 (2013); State
v. Thomas, 137 Conn. App. 782, 788–91, 49 A.3d 1038
(same), cert. denied, 307 Conn. 923, 55 A.3d 566 (2012);
Honan v. Dimyan, supra, 63 Conn. App. 705–10 (same).
B
We will address the remaining portion of this claim,
which is that the court erred in failing to find the plaintiff
in contempt of Judge Gordon’s August 12, 2011 orders
pertaining to the mortgage on the marital home by fail-
ing to reimburse her for the four months of mortgage
payments missed between April 1, 2011 and July 1, 2011.
Resolution of this particular claim is not precluded by
the doctrine of res judicata because it was not raised
in the defendant’s prior appeal in Brochard I.
In order to resolve whether the plaintiff was in con-
tempt of Judge Gordon’s orders of August 12, 2011, a
review of those orders is necessary. In reviewing an
appeal involving a civil contempt proceeding, ‘‘we must
resolve the threshold question of whether the underly-
ing order constituted a court order that was sufficiently
clear and unambiguous so as to support a judgment of
contempt. . . . This is a legal inquiry subject to de novo
review.’’ (Citations omitted.) In re Leah S., 284 Conn.
685, 693, 935 A.2d 1021 (2007).
The defendant claims that Judge Gordon ordered the
plaintiff to bring the mortgage payments current for the
months of April 1 through July 1, 2011, and that the
court erred in not finding the plaintiff in contempt for
failure to do so.
The following additional facts and procedural history
are necessary to the consideration of this claim. During
the hearing before Judge Gordon on August 12, 2011,
the court addressed the defendant’s motion for clarifi-
cation, which contained a request that the court answer
five questions. In question three, the defendant asked:
‘‘[T]he court ordered the marital home transferred to
the defendant, who shall be responsible for all costs
associated with the home. The mortgage on the marital
home is only in the plaintiff’s name, and the last payment
made by the plaintiff was the March, 2011 payment
. . . . Is the plaintiff responsible to bring the debt cur-
rent before he quitclaims the property to the
defendant?’’
In question four, the defendant asked: ‘‘In paragraph
18, the court ordered the defendant to be responsible
for her COBRA benefits.11 The [d]efendant’s health
insurance is an individual policy paid monthly. The
defendant therefore is not eligible for COBRA. Is the
plaintiff responsible for the payments due through July
6, 2011, including the payment due July 1, 2011?’’ The
following pertinent colloquy occurred:
‘‘[The Defendant’s Counsel]: And is he responsible to
bring the mortgage current?—
‘‘The Court: Right.12
‘‘[The Defendant’s Counsel]: —Before he quitclaims,
which he hasn’t done yet.
‘‘The Court: Okay. Is the—the question is, does—is
the responsible—yes. The answer to number four is
yes. There was a payment due on the first. It was due
on the first.
‘‘[The Defendant’s Counsel]: Yes, yes. So, he’s respon-
sible to—
‘‘The Court: Yes.
‘‘[The Defendant’s Counsel]: —make the insurance
payment due—
‘‘[The Plaintiff’s Counsel]: Well, but that covers the
whole month, Your Honor.
‘‘The Court: Was it due on the first?
‘‘[The Plaintiff’s Counsel]: It was due on the first.
‘‘The Court: It was due on the first. My decision didn’t
come out until the sixth.
‘‘[The Plaintiff’s Counsel]: Right.
‘‘The Court: That’s something . . . I’m not making
that determination.
‘‘[The Plaintiff’s Counsel]: I didn’t hear your answer
to number three, Your Honor.
‘‘The Court: I don’t have an answer to number three—
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: —because it’s the same as the problem
on the mortgage and whether—
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: —he needs to bring it current.’’ (Empha-
sis added; footnote added.)
Contrary to the defendant’s arguments, it is clear
from the previously quoted exchange that, at this point
in the hearing, the court had not decided whether the
plaintiff should be ordered to bring the mortgage pay-
ments missed since April, 2011, current.
A few minutes later, the court indicated: ‘‘I’ve got
two issues left, one of which . . . is the mortgage
arrearage and who’s paying for that . . . .’’ The court
then began a lengthy discussion about the other of the
two issues, namely, who was obligated to pay certain
other household expenses. At the end of the discussion
on household expenses, the court ordered the plaintiff
to pay an unpaid household expense arrearage in the
amount of $32,438.35 by transferring one half of that
amount out of his individual retirement account and
paying the other half at the rate of $50 per week. The
court then stated: ‘‘Oh, I’m sorry. I’m sorry. Hang on
for just a second. Let me finish the other order. The
request regarding the repayment of the mortgage is
denied, for the months to bring it current is denied.’’
After the court issued this order, it considered the
defendant’s motion for contempt. The following collo-
quy occurred:
‘‘[The Defendant’s Counsel]: Your Honor, I just, for
one moment, just want to address the mortgage issue.
‘‘The Court: Yes.
‘‘[The Defendant’s Counsel]: There are unpaid mort-
gage payments.
‘‘The Court: Yes, I know.
‘‘[The Defendant’s Counsel]: That’s one thing, but
there are attorney’s fees that have been incurred
because the payments weren’t made. All again, in [the
plaintiff’s] name, and interest because the payments
weren’t made. All, again, in [the plaintiff’s] name. I have
e-mails [where the plaintiff] just says it’s in foreclosure.
That’s too bad.
‘‘I mean, I really don’t think that those things should
be seen the same as the mortgage payments, which I
also believe he should pay, but if there are attorney’s
fees that have been incurred, I can’t see how that would
appropriately be more penalties or any of that would
appropriately be my client’s responsibility.
‘‘Again, she’s seeking the mortgage payments as well,
but I am asking the court to reconsider the idea that the
whole kit and caboodle, which might include a couple
thousand dollars in attorney’s fees, would be my cli-
ents’ responsibility.
‘‘[The Plaintiff’s Counsel]: She had the money to pay,
Your Honor. She’s liquid. [The plaintiff] was not. When
he got a reduction in his income, he was paying 72
percent of his gross income to the defendant. So, he
didn’t have the money, but she had $400,000 in the
account, not including the money she paid back to
her father.’’
The court then proceeded to hear evidence, asking
the plaintiff’s counsel: ‘‘All right, so do you want to put
on evidence about when your client first gave her notice
that the mortgage was not being paid? . . . Because
that goes to the equities of the other fees. I mean, it’s
one thing to not pay it and say I can’t pay it. It’s another
thing to be silent and let stuff, you know.’’
After hearing evidence, the court commented: ‘‘Once
again, the enmity between the two of you has continued.
. . . I mean, you’re both so adamant about who’s right
about everything that you just keep, you know, wasting
time and money and taking ridiculous positions. [Plain-
tiff], you owe—you’re the only person on the note. If
she sat back and did nothing and the house was fore-
closed and there was a deficiency judgment, it would
all be yours. . . . [I]f you really wanted to protect your
credit as much as you say that you do, that people
would go about this in an orderly process. On the other
hand, [defendant], you said that you’re terribly con-
cerned about the roof over your children’s heads. Well,
yes and no. I mean, you did. You went through, you
got all the stuff and everything is going, but you’re still
arguing about who’s going to advance the money or
who’s going to do what, and it’s absurd. Okay? You’re
living there. You had the liquidity to make the payments.
I mean, I’m not—he hasn’t been stellar, and he hasn’t
made a lot of the payments, and some of it was contemp-
tuous, but he did not have the money to make them all
up. Judge Abery-Wetstone’s [pendente lite] order was
very high, and I think that there—I don’t know what
everybody was contemplating in terms of the mortgage
getting paid, but I already made my order that she’s
going to take that over, but you’re going to be responsi-
ble for any attorney’s fees, any interest, any penalties,
anything else because you could have sat down and
instead of threatening . . . a custody fight . . . you
could have sat down and said, let’s get the papers done
for the modification. . . . So, it may be true that you
might not have been able to afford to make payments,
but your judgment is lacking when it comes to how to
solve a problem. Instead of being bellicose, all you had
to do is go, great. Let’s get the papers done. So, you’re
going to be responsible for what comes for that delay
or that lack of judgment, and that is the attorney’s fees,
late penalties, reinstatement penalties, anything but
the actual mortgage and interest. Okay?’’ (Emphasis
added.)
During the hearing before Judge Gould on April 21,
2015, the defendant began the presentation of her
motion for contempt on the mortgage issues by advising
the court that the plaintiff owed her four months of
mortgage payments from April through July, 2011, total-
ing $7578.88. She argued that Judge Gordon had ordered
the plaintiff to pay the past due four months of mortgage
payments and that when Judge Gordon stated: ‘‘The
request regarding the repayment of the mortgage is
denied, for the months to bring it current is denied,’’
she only had denied the defendant’s request to have
the plaintiff pay the August 1, 2011 mortgage payment,
but had intended to grant her request for the previous
four months, April through July, consistent with her
earlier response of ‘‘[r]ight,’’ when the defendant’s attor-
ney asked: ‘‘And is he responsible to bring the mortgage
current . . . .’’ The plaintiff argued that Judge Gordon
denied the defendant’s request that the plaintiff bring
the mortgage current and pay the four months of
missed payments.
In its memorandum of decision denying this particu-
lar motion for contempt, the court repeated the allega-
tions of each party, and then determined that the
recitation of the court’s order and findings set forth by
the plaintiff were accurate. We interpret this ruling of
the court to include a finding that the plaintiff’s interpre-
tation of Judge Gordon’s order on whether the plaintiff
had to bring the mortgage current was correct, and that
Judge Gordon did not order the plaintiff to pay the
four months past due mortgage payments and interest.
Therefore, the court did not find the plaintiff in con-
tempt for failing to bring the April through July, 2011
mortgage payments current.
A review of the entire transcript of the August 12,
2011 hearing leads us to conclude that the court’s ruling
was proper. Judge Gordon clearly denied the defen-
dant’s request that the plaintiff make up the payments
missed on the mortgage between April, 2011, and July
6, 2011.
After indicating that ‘‘[t]he request regarding the
repayment of the mortgage is denied,13 for the months
to bring it current is denied,’’ counsel for the defendant
began to argue that the court should reconsider its
ruling on the defendant’s request to bring the payments
current while she pressed on to argue that, at the very
least, she should recover any additional charges
resulting from the default. (Emphasis added; footnote
added.)
Shortly thereafter, Judge Gordon spoke to the parties
about their unabating mutual animosity and how it was
not helping anyone’s situation. Her comments further
reveal that she did not believe the plaintiff had the
ability to pay the mortgage, and therefore determined
only to hold him responsible for attorney’s fees, costs,
and reinstatement penalties emanating from his default,
but not for the five months of missed mortgage and
interest payments. The court specifically stated: ‘‘So,
you’re going to be responsible for what comes for that
delay or that lack of judgment, and that is the attorney’s
fees, late penalties, reinstatement penalties, anything
but the actual mortgage and interest. Okay?’’ (Empha-
sis added.)
We reject the defendant’s interpretation of Judge Gor-
don’s order because her interpretation depends on the
artificial isolation of words and phrases that support
her position, but fails to take into account the totality
of Judge Gordon’s remarks. We conclude that the court
did not err in declining to hold the plaintiff in contempt
on this issue because he cannot be held in violation of
an order that does not exist.
III
The defendant’s next claim is that the court erred in
denying her motion that the plaintiff be held in contempt
for failing to pay her one half of the 2010 tax refunds
that he received after filing individual federal and state
tax returns for 2010.
The following additional facts pertain to this claim.
On March 30, 2011, Judge Gordon asked both parties:
‘‘Did you all—you’re not going to file—you’re not filing
jointly for 2010, right?’’ Counsel for both parties
responded in the negative.14 Subsequently, the plaintiff
filed his state and federal tax returns as married, filing
separately and received refunds, the amount of which
are not ascertainable from the record.15 It is not clear
from the record whether the defendant also filed sepa-
rate returns in 2010. When Judge Gordon rendered the
the April 15 tax filing deadline, she ordered the parties
to file a joint tax return. The plaintiff was ordered to
pay any taxes owed, and the parties were to share
equally in any refund. This order, which the plaintiff
had no reason to contemplate on the basis of the discus-
sion that had taken place in court on March 30, 2011,
created another issue necessitating discussion during
the August 12, 2011 hearing before Judge Gordon, who
advised the parties to consult with an accountant to
determine what would happen if a joint return were to
be filed in lieu of separate returns. Although the court
may have been reconsidering its order pending an
accountant’s opinion, it did not modify any portion of
its dissolution order that obligated the parties to file a
joint tax return for the tax year 2010. Despite the fact
that this would require an amended return that would
not be filed timely, Judge Gordon did not address who
would be responsible for any penalties. Ultimately,
despite the parties’ lack of cooperation for months after-
ward, Judge Munro finally intervened with an order to
end the impasse, and an amended federal joint return
was filed, which necessitated further payment to the
Internal Revenue Service and resulted in no refund. The
defendant, however, contends that because the plaintiff
received a generous federal tax refund when he filed
separately and had to pay the Internal Revenue Service
less than that refund as a result of the jointly filed
amended return, he was left with a ‘‘net positive,’’ half
of which is owed to her.
In its memorandum of decision, the court found that,
rather than being entitled to a refund, the parties owed
the Internal Revenue Service $2990.74 as a result of
filing jointly for the calendar year 2010.
We conclude that the court’s decision conforms to
the clear and unambiguous language of the order in the
judgment of dissolution as to the joint tax refund, which
required the parties to share a refund that would result
only from a jointly filed return for tax year 2010. The
court properly declined to hold the plaintiff in contempt
for failing to derive from this simple order an unstated,
additional obligation inferred by the defendant but
nowhere clearly imposed by Judge Gordon. The defen-
dant’s unverified, proposed mathematical calculation
may be a fair proposal but, to effectuate it, she first
should have sought a revised dissolution order. ‘‘[A]
court . . . after distributing property, which includes
assigning the debts and liabilities of the parties, does
have the authority to issue postjudgment orders effectu-
ating its judgment.’’ (Internal quotation marks omitted.)
O’Halpin v. O’Halpin, 144 Conn. App. 671, 677–78, 74
A.3d 465, cert. denied, 310 Conn. 952, 81 A.3d 1180
(2013).
IV
We next address the defendant’s claim that the court
erred in denying her motion for modification of Judge
Munro’s order of February 6, 2014, which allocated the
parties’ obligation pertaining to payment of the guardian
ad litem’s fees. The defendant was ordered to pay 20
percent and the plaintiff was ordered to pay 80 percent
of the fees owed to Attorney Nugent. The defendant
alleged that there had been a substantial change in
circumstances since the entry of Judge Munro’s order
because she was no longer employed and had insuffi-
cient assets to pay her share. The court found that there
had been no substantial change in circumstances in the
finances of either party since the order of February
6, 2014.16
‘‘The court may order either party to pay the fees for
[a] guardian ad litem pursuant to General Statutes § 46b-
62, and how such expenses will be paid is within the
court’s discretion. . . . An abuse of discretion in grant-
ing [guardian ad litem] fees will be found only if [an
appellate court] determines that the trial court could not
reasonably have concluded as it did.’’ (Citation omitted;
internal quotation marks omitted.) Lamacchia v. Chili-
nsky, 79 Conn. App. 372, 374–75, 830 A.2d 329 (2003).
Both parties filed financial affidavits on July 10, 2015,
at the conclusion of the hearing before Judge Gould.
The financial affidavits they had filed prior to the hear-
ing before Judge Munro where the 80/20 percent alloca-
tion of responsibility was ordered are in the court file.
Although the court did not explicitly refer to these affi-
davits, we presume that it reviewed them in order to
ascertain whether there had been a substantial change
in the financial circumstances of the parties. At the
hearing before Judge Munro, Nugent was owed $2900
and reported that she had asked both parties to pay
her a retainer of $2500 each in December, 2013, and
that the plaintiff had done so, but the defendant had not.
Judge Munro found that as of the date of the hearing,
Nugent’s fees totaled $5400, and that the plaintiff was
responsible for $4320 and the defendant was responsi-
ble for $1080. Both were ordered to make their pay-
ments within fourteen days.
The defendant’s financial affidavit filed on February
6, 2014, reflected a net weekly income of $968.91,
weekly expenses of $1905.39, liabilities of $140,175.36
and assets of more than $418,758.68. The plaintiff’s affi-
davit at that time reflected a net weekly income of
$1372.02, weekly expenses of $1609.95, liabilities of
$36,677.97 and assets of $11,446.33. The defendant filed
another financial affidavit on July 10, 2015, indicating
a debt owed to Attorney Nugent in the amount of
$1333.15, which was based on her 20 percent share. The
defendant’s net weekly income was $692, her weekly
expenses were $2760.70, her liabilities were $153,192.41
and her assets were $474,789. The plaintiff’s affidavit,
also filed July 10, 2015, reflects his outstanding debt to
Nugent as $5332.60. His weekly income was $1596.53,17
his weekly expenses were $2284.97, his liabilities were
$103,077.46 and his assets were worth $12,771.68.
The court concluded that there had been no substan-
tial change in the financial circumstances of either party
since the entry of Judge Munro’s order of February 6,
2014, regarding payment of Nugent’s fees.18 ‘‘The party
seeking the modification has the burden of proving a
substantial change in circumstances. . . . 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. In making such an inquiry, the
trial court’s discretion is essential.’’ (Citation omitted;
internal quotation marks omitted.) O’Donnell v. Boz-
zuti, 148 Conn. App. 80, 87, 84 A.3d 479 (2014).
There was no evidence presented to the court as to
what amount might still be owed to Nugent as of July
10, 2015, other than the amounts each of the parties
claimed was due to her on their respective financial
affidavits.19 Although the defendant’s weekly net
income was slightly reduced, she provided no evidence
to the court of any inability to seek employment and
earn income.20 There was only a slight increase in the
plaintiff’s weekly net income, and both parties had sig-
nificant increases in their liabilities. The defendant,
however, in July, 2015, still possessed assets of signifi-
cantly higher value than the plaintiff’s assets, far in
excess of her liabilities and more than sufficient to pay
the debt she averred she owed to Nugent. We find no
abuse of discretion in the court’s denial of her motion
to reduce her 20 percent allocated share of the fees for
the guardian ad litem, an appointment to which she
agreed. See footnote 18 of this opinion. There was a
reasonable basis in fact for denying the defendant’s
motion because the defendant had failed to prove a
substantial change in circumstances necessitating a
reduction in her allocated 20 percent share of the fees.
V
The defendant’s next claim is that the court erred in
granting the plaintiff’s motion for modification of child
support, thereby decreasing his obligation, and in failing
to consider her cross motion for modification, which
sought an increase in the amount of child support.
We disagree.
Before addressing the merits of this claim, we note
legal principles relevant to motions for modification.
First, we set forth our well established standard of
review in domestic relations matters. ‘‘A trial court is
in an advantageous position to assess the personal fac-
tors so significant in domestic relations cases, and its
orders in such cases will not be reversed unless its
findings have no reasonable basis in fact or it had
abused its discretion, or unless, in the exercise of such
discretion, it applies the wrong standard of law.’’ (Inter-
nal quotation marks omitted.) Hane v. Hane, 158 Conn.
App. 167, 172, 118 A.3d 685 (2015).
When presented with a motion for modification, a
court must ‘‘first determine 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 prop-
erly consider the motion and, on the basis of the . . .
[General Statutes] § 46b-82 criteria, make an order for
modification. . . . The court has the authority to issue
a modification only if it conforms the order to the dis-
tinct and definite changes in the circumstances of the
parties.’’ (Internal quotation marks omitted.) Barbour
v. Barbour, 156 Conn. App. 383, 390, 113 A.3d 77 (2015).
The following additional facts are relevant to this
claim. At the commencement of the hearing on April
21, 2015, the defendant advised the court that her
motion for modification of child support, seeking an
increase retroactive to May 2, 2013, was pending and
she wanted it to be heard. She advised the court that
she had filed three child support guideline worksheets,
one for each of the years 2013 through 2015, along with
verification of income. She requested that the court, in
ordering child support retroactively, consider the three
different time periods. Counsel for the plaintiff
responded that although the parties had reached an
agreement on May 2, 2014, that agreement concerned
only the plaintiff’s motion for modification and that no
such agreement was made with respect to the defen-
dant’s motion for modification seeking an increase in
child support.21
The plaintiff filed a child support guidelines work-
sheet that had been prepared in 2013. The plaintiff
sought a modification of the $342 per week child sup-
port obligation to $277, retroactive to May 2, 2013, and
a credit for having overpaid his child support since
that date. When the defendant asked the court for an
opportunity to respond, the court said: ‘‘You don’t need
to respond to it, ma’am. I understood your argument,
and I will review your documentation.’’ Later on, at the
end of the hearing on April 22, 2015, the defendant
inquired of the court whether it would be hearing her
pending motion to modify child support. Counsel for the
plaintiff responded that he had not seen the defendant’s
motion, which had been filed on April 26, 2013, so the
court told the parties to speak to the presiding judge,
Emons, J., as to how to proceed on this motion because
the plaintiff was not prepared to go forward on it, or
the defendant could come back on some later date
when the court would hear the motion. The defendant
indicated that she wanted to speak to Judge Emons.
When the parties appeared before Judge Emons on
April 22, 2015, Judge Emons indicated that it was Judge
Gould’s responsibility to hear all the parties’ motions
and advised the defendant that Judge Gould was going
to hear all motions in this case. Judge Emons did not,
however, specify a date on which the defendant’s
motion for modification of child support would be
heard, although she had that authority as the presid-
ing judge.
On May 28, 2015, the defendant filed a document
captioned ‘‘Defendant’s List of Pending Motions for
Hearing July 10, 2015. At the very top of this list she
noted, ‘‘1. Defendant’s Motion to Modify—General 4/
26/13 MOTION FOR MODIFICATION OF CS 321 JD-FM-
174.’’ On that same date, she also filed an ‘‘Addendum
to Child Support Motion Filed [April 26, 2013].’’
At the next hearing before Judge Gould on July 10,
2015, which was more of a ‘‘wrapup’’ session than an
actual hearing, the court began by noting that it had
‘‘received notification from the parties of potential
motions to be heard . . . . I have from the plaintiff
that there are no motions pending; counsel, if you have
anything else, let me know. I have reviewed from the
defendant number 430, which is a further motion to
compel . . . 433, which is an addendum to the child
support motion, 434, which is a request to provide an
update, 435, which is a request to provide an update.
. . . In reviewing those documents and in reviewing
the motions that have been filed and reviewing the
transcripts, my notes and the evidence that has been
filed prior to today, I don’t think any additional testi-
mony is necessary on those motions.’’
The defendant then advised the court: ‘‘[W]hile [the
plaintiff’s counsel] gave his child support motion, I was
not able to give you evidence, and I have a lot of evi-
dence in conjunction with that child support motion.’’
(Emphasis added.) The court advised the defendant
that it was not hearing anything further, but that she
could make additional arguments and attach any docu-
ments to her posttrial brief. There was no clear discus-
sion during this exchange between the defendant and
the court that the defendant wanted to be heard immedi-
ately on her motion for modification of child support.
The court continued: ‘‘Ma’am, the hearing on that
issue has already been concluded. I have enough in
terms of the amount of information that has been filed.
I understand both parties’ positions, and you can make
any additional arguments and you can attach any docu-
ments as exhibits you think are appropriate on the
briefs.’’ The defendant responded: ‘‘Okay.’’
In its memorandum of decision, the court did not
address the defendant’s motion for modification of child
support. It granted the plaintiff’s motion for modifica-
tion and reduced his child support obligation to $220
per week, finding that amount to be the presumptive
amount pursuant to the child support guidelines, after
finding that the defendant’s net income, based on his
most recent financial affidavit, was $904.53, and that
the defendant was unemployed. The court found a sub-
stantial change of circumstances, which was based on
the parties’ oldest son having reached the age of major-
ity and graduated from high school. The decision makes
no mention of any retroactivity of the order to May 2,
2013, and does not award the plaintiff any credit for
overpayment since that date.22 The court made no men-
tion of, and did not rule on, the defendant’ motion for
an upward modification of child support.
In the defendant’s motion to reargue/reconsider, the
defendant alleged that the court made an error in
determining the plaintiff’s net income because the plain-
tiff should not have deducted his current alimony and
support obligation from his gross income, which is not
deductible for purposes of calculating the amount of
child support due pursuant to the guidelines. The defen-
dant requested that the court adjust the weekly amount
up to $296 per week for the one remaining minor child,
and the court did so, effective June 19, 2015, in its
memorandum of decision on the motion to reargue/
reconsider.
As to the court’s failure to hear the defendant’s
motion for modification of child support, we cannot
fault the court for not having heard that particular
motion as part of its hearing on combined financial
issues that began on April 21, 2015, and ended on July
10, 2015. We first note that on February 6, 2014, when
Judge Munro inquired of the defendant which motions
involving financial issues were to be referred to the
regional family trial docket, the defendant never men-
tioned this pending motion for modification. On April
22, 2015, the plaintiff indicated to the court that he had
not seen this motion and was not prepared to defend
against it. Finally, in fairness to the court, we observe
that the defendant never made any clear reference to
her motion for modification on July 10, 2015, and that
she subsequently acquiesced when the court indicated
it had heard everything it was going to hear and any
additional arguments could be made in the posttrial
briefs. Because we are unable to conclude that the court
actually was put on notice by either Judge Emons or
the defendant that the defendant’s motion for modifica-
tion of child support should be heard before the court
concluded the financial issues hearing it had com-
menced on April 21, 2015, we find no error.23
As the defendant still may intend to pursue her
motion for modification retroactive to May 2, 3013, we
will address the retroactivity issue. A review of the
written agreement the parties submitted to the court
reflects an unambiguous agreement as to retroactivity
only on the plaintiff’s motion; there is no mention of a
pending defendant’s motion or any reference to motions
in the plural. Thus, we conclude that if the defendant
were to reclaim this exceedingly stale motion for modi-
fication, it will likely be moot, as both of the minor
children have attained the age of eighteen and she will
be unable to seek a prospective modification.24
We further conclude that upon the court’s reconsider-
ation, it committed no error in granting the plaintiff a
modification of child support based on his properly
calculated net income and the change in circumstances
from the eldest child attaining majority. We find no
abuse of discretion in the entry of the $296 per week
child support order, effective June 19, 2015. That was
part of the numerous changes in the court’s orders the
defendant requested in her motion to reargue/
reconsider.
VI
The defendant’s final claim is that the court erred in
granting her motion for contempt regarding past due
alimony for the year 2012 in that it failed to order the
plaintiff to pay her the full amount she was owed.
We disagree.
The following additional facts are relevant to this
claim, which concerns the defendant’s entitlement to
provisional alimony, which is additional alimony pay-
able to her on a quarterly basis. Pursuant to the judg-
ment of dissolution, it includes 30 percent of all of the
plaintiff’s gross income from wages, self-employment,
commissions, incentives, bonuses or other payment
plans in excess of $90,000 per year, but less than
$150,000 per year.
In her testimony of April 22, 2015, the defendant
indicated that the plaintiff had sent her a check for
$794.45, which represented only a portion of the unpaid
provisional alimony payments owed to her for 2012,
and that she did not cash the check because she
believed that doing so would be an acknowledgment
on her part that the plaintiff had fulfilled his entire
obligation for that particular time period. In response,
the plaintiff’s counsel admitted that the plaintiff’s check
had not been cashed. The evidence reflected that the
plaintiff owed the defendant $1802.40 in provisional
alimony for 2012.
The defendant argues that the court erroneously
awarded her $1005.55 in unpaid provisional alimony
despite the fact that the evidence clearly reflected that
because she did not cash the check for partial payment,
she was actually owed $1802.40.
In its initial decision of September 28, 2015, the court
found that the plaintiff had paid the defendant the
$794.45. During the hearing on the defendant’s motion
to reargue/reconsider, however, the court, at the defen-
dant’s request, corrected this oversight after both par-
ties stipulated that $796.8525 was owed by the plaintiff
to the defendant for 2012 past due provisional alimony.
Therefore, we interpret the court’s ruling to reflect that
the defendant was awarded the full amount she now
claims was owed to her.
Accordingly, we find no error in the court’s granting
of the motion for contempt regarding past due alimony.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On February 6, 2014, at the time the court, Munro, J., referred this matter
to the regional family trial docket in the judicial district of Middlesex at
Middletown for a hearing on the plaintiff’s motion to modify custody and
child support, she inquired if any financial motions were also to be referred.
The defendant mentioned four motions: a motion for contempt as to the
children’s expenses, a motion for contempt as to medical expenses, a motion
for contempt as to alimony, and a motion for contempt as to the alleged
failure by the plaintiff, Thomas Brochard, to sign an authorization for the
defendant to be able to modify the mortgage on the parties’ marital home.
Prior to proceeding on pending financial issues, the court, Gould, J., had
conducted a hearing on the custody portion of the defendant’s motion for
modification of custody and child support in Middletown. At the commence-
ment of the hearing on financial issues on April 21, 2015, which took place
before Judge Gould in the judicial district of New Haven and gave rise to
this appeal, the defendant provided the court with a list of pending motions
that she intended to pursue. The court responded, ‘‘I have from you a list
of twenty-seven motions, all right. We’re not going to hear twenty-seven
motions.’’ The plaintiff was pursuing four motions. The court encouraged
the defendant to reduce the number of motions she was pursuing and then
proceeded in an orderly fashion to address each claimed motion chronologi-
cally. Eventually, the court considered and decided ten motions. The defen-
dant continued to file numerous motions after the hearing concluded on
July 10, 2015, and demanded that the court also rule on them, filing a
document titled, ‘‘Defendant’s List of Motions to Be Decided,’’ which
included a list of ‘‘motions filed after hearing.’’
2
The plaintiff also is representing himself on appeal.
3
Both children have since reached the age of majority.
4
We do not find persuasive the defendant’s claim that this agreement also
provided her with the right to seek a retroactive modification pursuant to
her motion for a modification of the child support order.
5
The defendant does not appeal from the court’s ruling on the plaintiff’s
motion for modification of custody or its denial of her motion for contempt
regarding religious education expenses.
6
In Emerick v. Emerick, 5 Conn. App. 649, 656–57, 502 A.2d 933 (1985),
cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986), this court discussed
the difference between a sole custodian and a joint legal custodian. A sole
custodian has the ultimate authority to make all decisions regarding a child’s
welfare, such as education, religious instruction and medical care, whereas
a joint legal custodian shares the responsibility for all of those decisions.
Id., 657 n.9.
7
In modifying the custody orders, an issue that is not the subject of this
appeal, the court stated that ‘‘the defendant has repeatedly failed to adhere
to her prior agreement to significantly consult with the plaintiff regarding
the minor child’s matters pursuant to the [parenting] agreement’’ and
removed the sole decision-making authority of the defendant.
8
The defendant’s exhibit containing a list of the children’s activities for
which she claimed she had not been reimbursed includes confusing notations
that some of the expenses had been paid by the plaintiff. She provided
little evidence of her having sought the plaintiff’s prior approval before she
incurred these numerous expenditures. Although the defendant claims that
some of her exhibits were ‘‘missing’’ or ‘‘falsely marked’’ as plaintiff’s exhib-
its, she provides no further detail, has made no attempt to rectify the record,
and we are unable to ascertain the truth of her assertion from the existing
record. A number of exhibits were marked for identification only, but on
this issue, the defendant does not inform us which of the exhibits for
identification only should have been marked as full exhibits with respect
to the medical and activities expenses. From our review of the record, the
court admitted almost every exhibit the defendant proffered during the
exchange on medical and activity expenses. There also was testimony that
despite the children being covered by health insurance through the plaintiff’s
employer, the defendant had applied for and was receiving payments for
some of their medical expenses from the HUSKY state medical insurance
program. Further undermining the defendant’s credibility on amounts owed
was evidence from the plaintiff that suggested that the defendant had doc-
tored an e-mail exchange between the parties by deleting portions of it to
make it appear that the plaintiff had agreed to pay half of Dr. El-Fishawy’s
bill. The plaintiff also testified that some of the activities the defendant
listed to receive half payment were gifts from the child’s grandparents,
including a drum set and a tuxedo one child needed for an event.
9
We note that at oral argument before this court in Brochard I on February
9, 2016, the defendant acknowledged that she had not filed transcripts of
subsequent hearings that occurred in 2015 on the mortgage authorization
issue, but she claimed they only would further demonstrate that she had
not been provided with a chance to argue her case before Judge Gould
issued his September 28, 2015 decision. The plaintiff asserted that Judge
Gould’s September 28, 2015 decision solely was based on a prior decision
of Judge Munro that the plaintiff claimed declared that he did not have to
provide the authorization ordered by Judge Gordon. The plaintiff did not
claim, despite this court’s questioning of the defendant, that any hearing
had been held between November 6, 2014, and September 28, 2015, at which
both parties were given sufficient opportunity to be heard regarding the
authorization issue. See Brochard I, supra, 165 Conn. App. 636. Despite the
lack of the additional transcripts of all the hearings, we determined in
Brochard I that the record was adequate for review because the parties
represented at oral argument before this court that there was no dispute
about whether the trial court addressed the issue on any day for which we
did not have the transcript; neither party claimed that any argument or
evidence related to the authorization issue, the subject of the first appeal,
was heard on those additional hearing days in 2015, and the court’s memoran-
dum of decision did not indicate that argument or evidence related to the
authorization occurred on those hearing days. Id., 641 n.8. Having now
had the opportunity to review these subsequent transcripts for this appeal,
however, we determine that both parties, appearing as self-represented
litigants, were less than candid with this court during oral argument in
Brochard I as to whether Judge Gould subsequently had addressed the
authorization issue.
10
Our determination not to address this claim includes the defendant’s
claim that the plaintiff reimburse her for interest, penalties and fees incurred
as a result of the plaintiff’s failure to provide her with a proper authorization
to negotiate with the mortgage lender because the amounts owed, if any,
pursuant to the claim on the mortgage authorization order, may be dependent
on whether a proper authorization was provided, and if so, when.
11
See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29
U.S.C. §§ 1161 through 1168 (2012).
12
The defendant claims that this particular response is where Judge Gor-
don ordered the plaintiff to bring the missed mortgage payments current.
We disagree because a reading of the subsequent colloquy between counsel
and the court reveals that the court reached the opposite conclusion on the
defendant’s request.
13
The first part of this statement was denying the plaintiff’s request that he
be reimbursed for paying the mortgage, pendente lite, from September, 2010.
14
This does not support the defendant’s assertion that Judge Gordon had
no idea the plaintiff had intended to file a separate return prior to the entry
of the judgment of dissolution.
15
At the end of the hearing on financial issues on April 22, 2015, the court
ordered the parties to provide information regarding what it referred to as
the ‘‘2010 tax issue and refund issue’’ within three weeks and that it would
keep the hearing open for that three week period of time. No hearing was
held three weeks later, and at the next hearing on July 10, 2015, neither
party offered any tax documents into evidence. On July 10, 2015, responding
to the defendant’s ongoing complaint that she was unable to present all of
her motions and evidence, the court indicated it was holding the hearing
open until July 31, 2015, without stating a purpose for doing so. It further
invited the parties to file posttrial briefs and attach additional documents
they believed pertinent to their arguments.
This court previously has rejected the use of such a procedure. Although
seemingly efficient, it deprives both parties of their right to contest the
pertinence of such last-minute, off-the-record submissions. See IN Energy
Solutions, Inc. v. Realgy, LLC, 114 Conn. App. 262, 268–69, 969 A.2d 807
(2009) (court erred in relying on supplemental documentation contained in
supplemental briefs that was not introduced into evidence and no evidence
in record supported court’s award). The proper procedure would have been
for the court to leave open evidence in the hearing, schedule another hearing
date, and permit the parties to offer additional documents into evidence at
that time.
To the extent that the defendant relies on documents she attached to her
posttrial briefs to prove she was owed a portion of tax refunds that the
plaintiff received from filing individual federal and state tax refunds for
2010, we observe that those attachments are not in evidence, and there is
no reference to them or indication in the court’s memorandum of decision
or in its decision on the motion to reargue/reconsider that it relied on them.
We therefore decline to consider any of the defendant’s attachments to her
posttrial briefs because we cannot presume, as we can with evidence prop-
erly admitted during a trial, that the court relied on them.
16
Despite the defendant’s assertions to the contrary, the court did not
address whether Attorney Nugent was owed any fees for services she may
have rendered between February 6, 2014, and the date of the hearing on
April 21, 2015.
17
We have added back in a deduction the defendant claimed that the
plaintiff improperly took on this affidavit for his current child support and
alimony obligation in the amount of $692, a sum the court agreed should
not have been deducted from his gross income.
18
The defendant also claims the plaintiff should pay all of the fees for
the guardian ad litem and reimburse her for what she has paid because she
never wanted a guardian ad litem appointed in the first place. She agreed,
however, in writing and in court, on May 2, 2013, that a guardian ad litem
should be appointed. We note that, on the basis of the file and after consider-
ing the previously noted comments of both Judge Gordon and Judge Gould
as to the defendant’s tenacity, it would not be fair to say that the need for
a guardian ad litem to help resolve parenting issues was caused only by the
actions of the plaintiff.
19
There is a statement from Nugent that was filed in court on July 1, 2014,
indicating a total balance due of $12,998.75. This statement reflected that
as of June 12, 2014, the plaintiff had paid Nugent $3920 and the defendant
had paid her $1080. If the amounts owed to Nugent that are reflected on
the parties’ financial affidavits of July 10, 2015, are accurate, each of them
should have paid Nugent additional sums between February 6, 2014, and
July 10, 2015, although neither of them indicated as such during the hearing.
20
We decline to consider the defendant’s self-serving, unsupported asser-
tions as to her lack of an earning capacity contained in one of her three
posttrial briefs, which are based on facts not in evidence. See footnote 15
of this opinion.
21
The May 2, 2013 agreement is in writing, signed by both parties and
states in relevant part: ‘‘The [plaintiff’s] motion to modify child support shall
go off with orders retroactive to today. However, [the plaintiff] retains the
right to seek retroactivity to the filing of the motion.’’ The agreement was
approved and made an order of the court on May 2, 2013.
22
We conclude that the court did not issue a retroactive order because
it would have had to consider any changes in the plaintiff’s income between
2013 and 2015 in order to do so, and it refers only to the plaintiff’s financial
affidavit of July 10, 2015. See Zahringer v. Zahringer, 124 Conn. App. 672,
688–89, 6 A.3d 141 (2010) (retroactive award may take into account long
time period between date of retroactivity and date motion is heard; court
may examine changes in parties’ incomes and needs during time motion
pending to fashion equitable award).
23
Rather than appealing, the defendant should have reclaimed her motion
for modification to the family short calendar in 2015, which would have
been a much more efficient way of ensuring it was promptly heard.
24
The parties’ youngest child became eighteen years old in 2016.
25
There is no explanation given on the record for the $794.45 amount the
defendant claimed during the hearing on April 22, 2015, and the stipulated
amount of $796.85, a $2.40 differential that favors the defendant.