Hane v. Hane ( 2015 )

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MADELAINE HANE v. OWEN HANE
(AC 36475)
DiPentima, C. J., and Mullins and Schaller, Js.
Argued March 12—officially released June 30, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee [dissolution judgment]; Schofield, J. [motion for
modification; motion to reargue].)
Thomas M. Shanley, for the appellant (plaintiff).
Mark R. Soboslai, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Madelaine Hane,
appeals from the postdissolution judgment of the trial
court denying retroactive application of the order grant-
ing her motion to modify alimony and child support
payable to her by the defendant, Owen Hane. On appeal,
the plaintiff claims that the court abused its discretion
by not ordering that the June 5, 2013 order increasing
the alimony and child support be applied retroactively
to July 11, 2011, the date her motion was served on the
defendant. We affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. The parties were married in October, 1994, and
have two minor children. The court dissolved the mar-
riage on February 14, 2008, and incorporated their writ-
ten agreement into the judgment. The agreement
provided that the defendant would pay unallocated ali-
mony and child support pursuant to a multi-tiered struc-
ture due to his compensation schedule and its inherent
fluctuations. Specifically, the defendant paid $14,000
per month in ‘‘base support’’1 from his primary employ-
ment and 50 percent from any ‘‘alternate income.’’ The
parties also agreed to a tiered payment structure in the
event that the defendant earned more than a certain
income during the year.
On February 2, 2009, the defendant filed a motion to
modify and decrease his alimony and child support
obligations. He alleged a significant decrease in his
income and sought an alimony payment of $1 per year
and child support payment consistent with the child
support guidelines. The court issued a memorandum
of decision on August 20, 2009, granting the defendant’s
motion. Specifically, the court found a substantial
change in the defendant’s financial circumstances and
modified the defendant’s unallocated alimony and child
support payment to $675 per week.
On June 16, 2011, the plaintiff filed a motion for
modification, alleging that the defendant’s income had
increased significantly and seeking additional alimony
and child support. The defendant was served by abode
service on July 11, 2011. After a hearing, the court issued
a memorandum of decision on June 5, 2013. It noted
that modification would be based not on the original
judgment, but on the 2009 decision on the defendant’s
motion for modification. See Borkowski v. Borkowski,
228 Conn. 729, 738, 638 A.2d 1060 (1994).2 It then stated
that it would apply the factors set forth in General
Statutes § 46b-82.3
The court found that the defendant’s earning capacity
exceeded $100,000 per year. It further found that the
defendant’s gross income for 2011 was $474,765 and
$531,958 for 2012. For 2012, the defendant’s net income
was $6277 per week or $336,404 per year. Given these
findings, the court determined that the change in his
income constituted a substantial change from 2009.
The court then entered the following orders increas-
ing the defendant’s alimony and child support obliga-
tions. The defendant was to pay $921 per week in
accordance with the child support guidelines. For the
defendant’s net income up to $150,000, the defendant
was to pay 25 percent in alimony. The defendant was
to pay additional alimony of 25 percent of his net income
between $150,001 and $250,000, additional alimony of
15 percent on his net income between $250,001 and
$350,000 and additional alimony of 10 percent of his
net income for his income over $350,000. The court
determined that an order making the modification retro-
active would be unduly harsh. Accordingly, it denied
the plaintiff’s request for retroactivity.
On June 17, 2013, the plaintiff filed a motion to rear-
gue pursuant to Practice Book § 11-11.4 Specifically, she
sought to reargue, inter alia, the issue of retroactivity.
On December 30, 2013, the court granted the motion
to reargue and issued certain orders.5 With respect to
the issue of retroactivity, the court stated: ‘‘The court
denies retroactivity having previously found such to be
unduly harsh.’’ The plaintiff then filed this appeal.6
Before addressing the merits of the plaintiff’s appeal,
we identify the relevant legal principles. ‘‘We first set
forth our well established standard of review that is
applied 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.) Cannon v. Cannon, 109
Conn. App. 844, 848–49, 953 A.2d 694 (2008); see also
Zahringer v. Zahringer, 124 Conn. App. 672, 677, 6 A.3d
141 (2010); Simms v. Simms, 89 Conn. App. 158, 160–61,
872 A.2d 920 (2005).
The motion for modification was brought pursuant
to General Statutes § 46b-86.7 ‘‘When presented with a
motion for modification [brought pursuant to § 46b-86
(a)], 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
properly consider the motion and, on the basis of the
. . . § 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 distinct and definite
changes in the circumstances of the parties.’’ (Footnote
omitted; internal quotation marks omitted.) Barbour v.
Barbour, 156 Conn. App. 383, 390, 113 A.3d 77 (2015);
see also Dan v. Dan, 315 Conn. 1, 9, 105 A.3d 118(2014); McRae v. McRae, 139 Conn. App. 75, 80, 54 A.3d
1049 (2012).
In Shedrick v. Shedrick, 32 Conn. App. 147, 149, 627
A.2d 1387 (1993), we noted that our appellate courts
consistently have held that, absent legislative authority,
a retroactive modification of alimony is impermissible.
‘‘In 1990, however, the legislature did in fact expressly
authorize retroactive modification of alimony under
certain circumstances.’’ Id.; see also Lucas v. Lucas, 88
Conn. App. 246, 255–56, 869 A.2d 239 (2005). Section
46b-86 (a) provides in relevant part: ‘‘No order for peri-
odic payment of permanent alimony or support may be
subject to retroactive modification, except that the
court may order modification with respect to any
period during which there is a pending motion for
modification of an alimony or support order from the
date of service of notice of such pending motion upon
the opposing party pursuant to section 52-50.’’ (Empha-
sis added.)
In the present case, the court denied the plaintiff’s
claim for retroactivity. It stated: ‘‘[T]he court has
reviewed the brief of the defendant’s counsel and is
persuaded that an order of retroactive alimony and
support would be unduly harsh, if not punitive. Based
on the conduct of the parties, the court denies an order
of retroactivity.’’ In its response to the plaintiff’s motion
to reargue, the court denied retroactive modification,
iterating that it previously had found such an award to
be unduly harsh.
The plaintiff did not provide this court with a tran-
script of the hearing on her motion to modify.8 In her
appeal, she does not ask this court to consider the
totality of the trial court proceedings when determining
whether the trial court had abused its discretion in
denying retroactivity.9 Instead, she rests her appellate
claim on her interpretation of our decision in Zahringer
v. Zahringer, supra, 124 Conn. App. 672.10 Specifically,
she contends that, in that case, we set forth the standard
for when an alimony and support modification should
be made retroactive. She further argues that, given the
factors articulated in Zahringer, the abuse of discretion
by the court in denying retroactivity is apparent.11 Put
another way, the plaintiff’s sole claim is that Zahringer
established a bright line test for determining retroactiv-
ity and under that test, the failure to make the modifica-
tion retroactive in the present case constituted an abuse
of discretion. We disagree with the plaintiff’s reading
of Zahringer, and conclude therefore that the court’s
decision did not amount to an abuse of its discretion.
In Zahringer v. Zahringer, supra, 124 Conn. App.
672, the defendant husband claimed, inter alia, that the
court improperly interpreted a provision of the parties’
separation agreement that permitted the plaintiff wife
to petition to the court to review the unallocated ali-
mony and support payment at any time after January
1, 1999. The parties’ agreement made any modification
retroactive to January 1, 1999. Id. We concluded that
the agreement was ambiguous and that the court
improperly had used an incorrect date when determin-
ing whether a modification was warranted. Id. We then
stated: ‘‘Consistent with our case law, the trial court
ha[d] discretion in determining the amount of alimony
to be paid retroactive to January 1, 1999. . . . The ret-
roactive award may take into account the long time
period between the date of filing a motion to modify,
or, with this case, the contractual retroactive date, and
the date that motion is heard, which in this case spans
a number of years. The court may examine the changes
in the parties’ incomes and needs during the time the
motion is pending to fashion an equitable award based
on those changes. The current alimony need not be
uniformly retroactive, if such result would be inequita-
ble.’’ (Citation omitted.) Id., 688–89.
Contrary to the arguments of the plaintiff, the court
in Zahringer did not definitively state the exclusive
factors a court must consider when determining
whether to make a modification to alimony or child
support retroactive. Simply put, we disagree with the
plaintiff’s interpretation of that case. It did not set out
a bright line test for determining retroactivity. Instead,
Zahringer noted certain factors applicable given the
facts and circumstances of that case. Further, it specifi-
cally stated that the court may consider the length of
the time period to adjudicate a motion for modification.
Id., 689. In short, we conclude that the plaintiff’s reading
of Zahringer is incorrect and, therefore, her claim that
the court abused its discretion, which rests on that
flawed interpretation, must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
During the pendency of the sale of the marital home, this obligation was
reduced to $12,000 per month.
2
‘‘In Borkowski v. Borkowski, [supra, 228 Conn. 738], our Supreme Court
explained that the power of the trial court to modify an existing order does
not include the power to retry issues already decided. Thus, the court’s
inquiry is necessarily confined to a comparison between the current condi-
tions and the last court order.’’ (Emphasis in original; internal quotation
marks omitted.) Simms v. Simms, 89 Conn. App. 158, 161–62, 872 A.2d
920 (2005).
3
General Statutes § 46b-82 (a) provides in relevant part: ‘‘In determining
whether alimony shall be awarded, and the duration and amount of the
award, the court shall consider the evidence presented by each party and
shall consider the length of the marriage, the causes for the annulment,
dissolution of the marriage or legal separation, the age, health, station,
occupation, amount and sources of income, earning capacity, vocational
skills, education, employability, estate and needs of each of the parties and
the award, if any, which the court may make pursuant to section 46b-81,
and, in the case of a parent to whom the custody of minor children has
been awarded, the desirability and feasibility of such parent’s securing
employment.’’
Although the relevant language of § 46b-82 (a) was the subject of amend-
ments in 2013; see Public Acts 2013, No 13-213, § 3; those amendments have
no bearing on the merits of this appeal. In the interest of simplicity, we
refer to the current revision of the statute.
4
The defendant filed an objection and memorandum of law on August
7, 2013.
5
Specifically, the court stated the following: ‘‘Order 1 provides for child
support in the amount of $921 per week pursuant to the child support
guidelines to be paid each payroll period effective July 1, 2013. The court
will amend the order to be effective June 5, 2013. . . . Order 2 shall be
amended to correct a mathematical error . . . Alimony shall be based on
the following: 25 percent of the [defendant’s] net income up to $150,000
[with] $721.00 per week to be paid each payroll period effective June 5,
2013. . . . Net income is defined as . . . ‘total income received by [a party]
from all sources, less the legitimate expenses of realizing it . . . .’ Sturtev-
ant v. Sturtevant, 146 Conn. 644, 648 [53 A.2d 828] (1959).’’
6
On her appeal form, the plaintiff indicated that she was appealing from
the June 5, 2013 decision, which was the date the court granted her motion
for modification, but denied her claim for retroactivity. She further stated
on her appeal form that on December 30, 2013, the court issued an order
on her motion to reargue, a motion that could have rendered the June 5,
2013 order ineffective. See Practice Book § 11-11. Last, the plaintiff wrote
that she had appealed from the ‘‘response to the plaintiff’s motion to reargue
the decision dated June 5, 2013.’’ In his appellate brief, the defendant appears
to argue that the plaintiff’s appeal is limited to whether the court properly
denied the plaintiff’s motion to reargue with respect to the issue of retroactiv-
ity. We are not persuaded by this argument.
We acknowledge that the plaintiff stated on her appeal form that she was
appealing from the ‘‘response to [her] motion to reargue . . . .’’ Neverthe-
less, the form also indicates that her appeal was taken from June 5, 2013
order of the court granting the motion for modification and denying her
claim for retroactivity. Our Supreme Court has stated that ‘‘the forms for
appeals and amended appeals do not in any way implicate appellate subject
matter jurisdiction. They are merely the formal, technical vehicles by which
parties seek to invoke that jurisdiction. Compliance with them need not be
perfect; it is the substance that matters, not the form.’’ Pritchard v. Pritch-
ard, 281 Conn. 262, 275, 914 A.2d 1025 (2007); see also Midland Funding,
LLC v. Tripp, 134 Conn. App. 195, 196 n.1, 38 A.3d 221 (2012) (improper
date listed on appeal form was technical defect); see generally Rocque v.
DeMilo & Co., 85 Conn. App. 512, 527, 857 A.2d 976 (2004) (in accordance
with policy not to exalt form over substance, we have been reluctant to
dismiss appeals for technical deficiencies in appeal form). Therefore, despite
the imprecise language used on the plaintiff’s appeal form, we will review
the merits of the trial court’s order denying retroactivity with respect to
the plaintiff’s motion for modification.
7
General Statutes 46b-86 (a) provides in relevant part: ‘‘Unless and to the
extent that the decree precludes modification, any final order for the periodic
payment of permanent alimony or support, an order for alimony or support
pendente lite or an order requiring either party to maintain life insurance
for the other party or a minor child of the parties may, at any time thereafter,
be continued, set aside, altered or modified by the court upon a showing
of a substantial change in the circumstances of either party . . . .’’
8
On October 21, 2014, the plaintiff, inter alia, moved for permission to
supplement the record and/or amend the transcript statement. We denied
this part of the plaintiff’s motion on October 29, 2014. We granted the
plaintiff’s other request to strike portions of the defendant’s appellate brief
and appendix. Specifically, we note that the motion to supplement the record
to include the transcript was not filed timely. It was filed after the plaintiff had
submitted her main brief in which she made no reference to the transcript.
9
To the extent that the plaintiff does claim, under the facts and circum-
stances of this case, that the court abused its discretion in denying her
request for retroactivity, we conclude that the record is inadequate for
review. In her papers filed pursuant to Practice Book § 63-4, the plaintiff
filed a certificate indicating that no transcript is deemed necessary. See
Practice Book § 63-4 (a) (2). In reviewing the court file, we discovered a
transcript in the court file that appears to be complete. It is not clear,
however, why the court file contains the transcript or how its presence
would effectively nullify the plaintiff’s affirmative statement that transcripts
were not needed in this appeal. Additionally, the plaintiff did not move for
an articulation of the court’s decisions. We will not speculate as to the
reasons for the court’s determination that retroactive alimony in this case
was unduly harsh, if not punitive, or what conduct of the parties it con-
sidered.
10
The plaintiff posits in her brief that the law favors a retroactive modifica-
tion and cites the following from our decision in Lucas v. Lucas, supra, 88
Conn. App. 256: ‘‘If the trial court decides that a party is entitled to an
increase in an award of alimony, the court’s order should be effective as
of the date of service of notice of the motion . . . so as to afford the [party]
the benefit of the modification from the time when it was originally sought.’’
(Internal quotation marks omitted.) The plaintiff also correctly observed
that the Lucas quote was taken from our opinion in Milbauer v. Milbauer,
54 Conn. App. 304, 310 n.2, 733 A.2d 907 (1999); but see Cannon v. Cannon,
supra, 109 Conn. App. 850 (retroactive modification well within discretion
of trial court). The language cited by the plaintiff, however, originated not
in Milbauer, but in our Supreme Court’s decision in Bartlett v. Bartlett, 220
Conn. 372, 384, 599 A.2d 14 (1991). A careful reading of Bartlett reveals that
the language was directed at the plaintiff in that particular case if the trial
court, on remand, determined that she was entitled to an increase in alimony.
Id. We note that the plaintiff’s claim in the present case that, as a general
matter, the law presumes or favors a retroactive application of the granting
of a motion to modify appears tenuous. Finally, we note that the statute
authorizing retroactive modifications provides that the court may order a
retroactive modification. See State v. Bletsch, 281 Conn. 5, 17–18, 912 A.2d
992 (2007) (use of ‘‘may’’ in statutory language imports permissive conduct
and conferral of discretion).
11
We decline to consider the plaintiff’s belated attempt to argue that the
court erred as a matter of law. This claim was raised for this first time in
her reply brief. ‘‘It is well established that [c]laims . . . are unreviewable
when raised for the first time in a reply brief.’’ (Internal quotation marks
omitted.) 2 National Place, LLC v. Reiner, 152 Conn. App. 544, 548 n.4, 99
A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d 1112 (2014).