Olson v. Mohammadu , 169 Conn. App. 243 ( 2016 )

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MARIANNE OLSON v. FUSAINI MOHAMMADU
(AC 37216)
Alvord, Mullins and Sullivan, Js.
Argued September 15—officially released November 8, 2016
(Appeal from Superior Court, judicial district of
Hartford, Hon. Herbert Barall, judge trial referee
[dissolution judgment]; Ficeto, J. [motion to modify];
Albis, J. [motion for counsel fees; motion for
contempt].)
John F. Morris, for the appellant (defendant).
Brandon B. Fontaine, with whom, were Emily C.
Carr and, on the brief, C. Michael Budlong, for the
appellee (plaintiff).
Opinion
ALVORD, J. The defendant, Fusaini Mohammadu,
appeals from the ruling of the trial court, Ficeto, J.,
denying his postjudgment motion for modification of
alimony and child support orders, rendered on remand
following the decision of our Supreme Court in Olson
v. Mohammadu, 310 Conn. 665, 81 A.3d 215 (2013).
Additionally, in his amended appeal, the defendant chal-
lenges a subsequent ruling of the trial court, Albis, J.,
that ordered him to pay the plaintiff, Marianne Olson,1
$6002 in a previously found arrearage pursuant to an
order he claimed had been suspended, and the court’s
ruling that granted the plaintiff’s motion for appellate
attorney’s fees to defend the present appeal. We affirm
the judgments of the trial court.
The following relevant facts and procedural history
are set forth in the Supreme Court opinion. ‘‘The parties
were married on June 7, 2001. During the marriage, the
parties had one child together. In September, 2008, the
plaintiff . . . who resided in Connecticut with [the
child], filed a dissolution of marriage action against
the defendant, who at that time resided in Florida. On
August 5, 2009, the court [Hon. Herbert Barall, judge
trial referee] rendered judgment dissolving the parties’
marriage. In its orders contained in that judgment, the
court ordered joint legal custody of the minor child with
primary physical custody to the plaintiff and reasonable
visitation rights to the defendant in Connecticut. The
court further ordered the defendant to pay the plaintiff
periodic alimony in the amount of $777 per week. . . .2
In addition, the court ordered the defendant to pay child
support in the following amounts: $334 per week and
66 percent of day care, extracurricular activities and
unreimbursed medical and dental expenses for the ben-
efit of the minor child. . . .
‘‘On April 14, 2010, the defendant filed a motion to
modify the alimony and child support order. The defen-
dant filed an amended motion to modify on June 18,
2010. As the grounds for his amended motion, the defen-
dant alleged a substantial change in circumstances in
that he had relocated from Florida to Connecticut and,
consequently, had obtained new employment at a
reduced salary. At the modification hearing, the court
[Adelman, J.] heard undisputed testimony that the
defendant voluntarily left employment as a physician
in Florida earning a salary of approximately $180,000
annually. The defendant testified that he voluntarily
relocated to Connecticut in order to have a more mean-
ingful relationship with his child. As a result of the
relocation, the defendant’s salary was reduced to
approximately $150,000 annually. According to the
defendant’s testimony, the $150,000 salary is standard
pay for someone of his experience in a comparable
position in Connecticut.
‘‘After the hearing, the trial court denied the defen-
dant’s motion for modification. In denying the motion,
the trial court stated in its memorandum of decision
that it relie[d] on the voluntary nature of the income
change experienced by the defendant. . . . The defen-
dant appealed from the trial court’s decision to the
Appellate Court.’’ (Citation omitted; footnotes altered;
internal quotation marks omitted.) Olson v. Moham-
madu, supra, 310 Conn. 667–69. ‘‘While the appeal was
pending at the Appellate Court, the defendant filed a
motion for articulation of the trial court’s decision. . . .
The trial court granted, in part, the motion for articula-
tion and stated that [t]he court did not consider the
relocation to be a substantial change in circumstance[s]
because the move was a voluntary action on the part
of the defendant.’’ (Emphasis in original; internal quota-
tion marks omitted.) Id., 669.
This court affirmed the judgment of the trial court,
concluding that the trial court properly determined that
‘‘a change in income resulting from a voluntary decision
does not constitute a substantial change in circum-
stances.’’ Olson v. Mohammadu, 134 Conn. App. 252,
261, 39 A.3d 744 (2012), rev’d, 310 Conn. 665, 81 A.3d 215
(2013). The defendant filed a petition for certification
to appeal from the judgment of this court, which was
granted by our Supreme Court. The Supreme Court held
that ‘‘the Appellate Court improperly concluded that
the defendant’s voluntary relocation and income change
necessarily precluded him from establishing a substan-
tial change in circumstances.’’ Olson v. Mohammadu,
supra, 310 Conn. 670–71. The court reasoned as follows:
‘‘[T]he trial court should have taken into account the
defendant’s motivation for relocating in deciding the
threshold issue of whether there was a substantial
change of circumstances warranting modification. In
other words . . . the trial court should have deter-
mined whether the defendant’s alleged inability to pay
was a result of his own extravagance, neglect, miscon-
duct or other unacceptable reason . . . . Because the
trial court made no finding on the culpability of the
defendant’s conduct, we conclude that the trial court
incorrectly applied the law when it denied the defen-
dant’s motion for modification.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Id., 680. Accordingly, the Supreme Court remanded the
case to this court with direction to reverse the judgment
of the trial court and to remand the case to the trial
court for a new hearing on the defendant’s motion for
modification. Id., 686.
The rehearing on the defendant’s motion for modifi-
cation was held before Judge Ficeto on April 21, 2014.
Both parties testified as to their financial circumstances
beginning at the time of the dissolution judgment in
August, 2009, and through the succeeding years up to
and including the time of the rehearing in 2014. The
parties each submitted financial affidavits that had been
prepared in 2009 and 2014. The parties’ tax returns for
2010, 2011 and 2012 also were admitted into evidence.
During their closing arguments, counsel referenced pro-
posed orders filed with the court. In those proposed
orders, the plaintiff requested that there be no modifica-
tion of the alimony and child support orders, whereas
the defendant requested a modification that would
decrease his support obligations. For 2010, the defen-
dant requested the court to reduce his child support
obligation from $334 per week to $237 per week, and
to reduce the percentage of his payments for uninsured
medical expenses and day care expenses from 66 per-
cent to 55 percent. He additionally requested in his
proposed orders that his alimony obligation be reduced
from $777 per week to $120 per week. For 2011 and
subsequent years, the defendant requested his child
support obligation to be modified to $307 per week and
his alimony obligation to be modified to $400 per week.
The court issued its memorandum of decision on May
14, 2014, and modified its ruling in a memorandum
of decision filed August 11, 2014.3 In its May 14, 2014
memorandum of decision, the court found that the
defendant was employed in Florida until March, 2010,
that he worked part-time in April and June, 2010,4 and
that he became employed full-time by Community
Health Center in New Britain on June 28, 2010, at a
salary of $150,000. The court additionally found that he
received from his new employer a sign-on bonus of
$3000, as well as a payment of $3000 toward his reloca-
tion costs. The court found that the defendant worked
additional hours at Middlesex Hospital in 2010. In a
footnote in its memorandum of decision, the court
noted that the defendant was no longer incurring costs
for visitation expenses to and from Florida in 2010.
Significantly, the court also found that ‘‘in the years
subsequent to 2010, [the defendant’s] income equaled or
surpassed $180,000 and therefore there is no substantial
change in circumstance in the years 2011, 2012 and
2013. [The defendant] is currently on track to exceed
$190,000 in 2014.’’
In its August 11, 2014 memorandum of decision, the
court further found that the defendant’s net weekly
income in 2009, at the time he was earning $180,000 in
Florida, was $2587, as stated in his financial affidavit
filed June 4, 2009. As of October 25, 2010, the date of
the initial hearing on his motion for modification, the
defendant reported his net weekly income to be $1998
on his October 25, 2010 financial affidavit. The court,
however, found that the defendant had improperly
deducted insurance premiums5 and contributions to his
health care account as ‘‘ ‘above the line’ deductions.’’
For that reason, the court determined that his net
weekly income, as of October 25, 2010, was $2134.
After concluding that the defendant’s net weekly
income was reduced by $454, or 17.5 percent, the court
denied the defendant’s motion for modification: ‘‘When
considering a motion for the modification of alimony,
the court is permitted to consider the factors set forth
in [General Statutes] § 46b-82 namely, the age, health,
station, occupation, employability and the amount and
sources of income of the parties. . . . The court has
carefully considered the facts of this case, the relevant
case law and the provisions of [General Statutes §§] 46b-
82 and 46b-86 and declines to modify the defendant’s
support obligations.’’ (Citation omitted; internal quota-
tion marks omitted.)
The defendant appealed from the court’s denial of
his modification motion on September 29, 2014. There-
after, on January 19, 2016, Judge Albis heard a number
of postjudgment motions filed by both parties. The rele-
vant motions for purposes of this appeal are the plain-
tiff’s motion for contempt and/or for order, and the
plaintiff’s motion for appellate attorney’s fees, both filed
on September 10, 2015. In the court’s memorandum of
decision issued February 10, 2016, Judge Albis deter-
mined, inter alia,6 that the defendant had not wilfully
violated the court’s April 4, 2013 order to pay the plain-
tiff an accumulated arrearage of $6002 for his share of
child care expenses. Judge Albis found that the order
‘‘contained some uncertainty from the outset’’ and that
the defendant had mistakenly believed that payment
was suspended until all of his appeals had been decided.
After stating that there was no automatic or court-
ordered stay with respect to that obligation, Judge Albis
ordered the defendant to pay the plaintiff the previously
ordered arrearage of $6002 in consecutive monthly
installments of $1000 until paid in full.
With respect to the plaintiff’s motion for appellate
attorney’s fees, Judge Albis found that the plaintiff did
not have sufficient liquid assets with which to pay her
own legal fees. He further found that she did not have
sufficient income to pay those fees without using a
portion of the child support she received from the defen-
dant, which would undermine the court’s prior order
of child support. Finally, Judge Albis found that the
defendant’s income enabled him to pay a portion of the
plaintiff’s legal fees. Accordingly, the court ordered the
defendant to pay the plaintiff $10,000, in monthly install-
ments of $1000, for the defense of the pending appeal.
The defendant filed an appeal from Judge Albis’ rulings
on February 29, 2016, which was treated as an amended
appeal by this court.
I
DEFENDANT’S MOTION FOR MODIFICATION
We initially set forth the well established standard of
review and principles of law relevant to the defendant’s
claims pertaining to the denial of his motion to modify
his support obligations. ‘‘The scope of our review of a
trial court’s exercise of its broad discretion in domestic
relations cases is limited to the questions of whether
the [trial] court correctly applied the law and could
reasonably have concluded as it did. . . . In determin-
ing whether a trial court has abused its broad discretion
in domestic relations matters, we allow every reason-
able presumption in favor of the correctness of its
action. . . . Nevertheless, we may reverse a trial
court’s ruling on a modification motion if the trial court
applied the wrong standard of law. . . .
‘‘[Section] 46b-86 governs the modification or termi-
nation of an alimony or support order after the date
of a dissolution judgment. When, as in this case, the
disputed issue is alimony [or child support], the applica-
ble provision of the statute is § 46b-86 (a), which pro-
vides that a final order for alimony may be modified
by the trial court upon a showing of a substantial change
in the circumstances of either party. . . . Under that
statutory provision, the party seeking the modification
bears the burden of demonstrating that such a change
has occurred. . . . To obtain a modification, the mov-
ing party must demonstrate that circumstances have
changed since the last court order such that it would
be unjust or inequitable to hold either party to it.
Because the establishment of changed circumstances
is a condition precedent to a party’s relief, it is pertinent
for the trial court to inquire as to what, if any, new
circumstance warrants a modification of the existing
order. . . .
‘‘Once a trial court determines that there has been a
substantial change in the financial circumstances of
one of the parties, the same criteria that determine an
initial award of alimony and support are relevant to the
question of modification. . . . More specifically, these
criteria, outlined in . . . § 46b-82, require the court to
consider the needs and financial resources of each of
the parties and their children, as well as such factors
as the causes for the dissolution of the marriage and
the age, health, station, occupation, employability and
amount and sources of income of the parties. . . . The
power of the trial court to modify the existing order
does not, however, include the power to retry issues
already decided . . . or to allow the parties to use a
motion to modify as an appeal. . . . Rather, the trial
court’s discretion includes only the power to adapt the
order to some distinct and definite change in the circum-
stances or conditions of the parties. . . .
‘‘Thus, [w]hen presented with a motion for modifica-
tion, 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.’’ (Citations
omitted; emphasis added; footnotes omitted; internal
quotation marks omitted.) Olson v. Mohammadu,
supra, 310 Conn. 671–74.
A
Alimony
The defendant claims that the trial court abused its
discretion in denying his motion to modify his alimony
obligation ‘‘by failing to properly find net income and
by failing to properly compare circumstances at the
time of the remand to the judgment.’’ Specifically, the
defendant argues that the court ‘‘improperly identified
the defendant’s June 4, 2009 financial affidavit as the
starting point of analysis when the proper starting point
was the court’s finding of net income in the judgment
on August 5, 2009,’’ and that the court improperly
declined to reduce his alimony obligation ‘‘based on
consideration of the [§] 46b-82 factors despite the fact
that none of these factors were in evidence.’’
‘‘[I]t is well settled that a court must base its alimony
award on the available net income of the parties . . . .’’
Zahringer v. Zahringer, 124 Conn. App. 672, 689, 6 A.3d
141 (2010). ‘‘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.’’ Borkowski v.
Borkowski, 228 Conn. 729, 737–38, 638 A.2d 1060 (1994).
In the present case, the last court order with respect to
alimony was set forth in the August 5, 2009 dissolution
judgment. Accordingly, the date of the dissolution judg-
ment would be the starting point for the trial court’s
analysis. The motion for modification, as amended, was
filed in June, 2010, and the initial hearing date on that
motion was held on October 25, 2010. At that time, the
parties submitted copies of financial affidavits that had
been prepared for the dissolution trial in 2009, and
current 2010 financial affidavits for the hearing on the
defendant’s motion for modification.
After the court’s 2010 ruling on the motion for modifi-
cation was reversed; Olson v. Mohammadu, supra, 310
Conn. 667; a rehearing on the defendant’s motion for
modification was held on April 21, 2014. The parties
submitted 2009 and 2014 financial affidavits, together
with tax returns for 2010, 2011, and 2012. Because of
the length of time between the filing of the defendant’s
motion for child support and alimony modification in
2010 and the rehearing on that motion in 2014, the
trial court was directed to take into account the period
between the date of the filing of the motion and the
date that the motion was heard at the rehearing, which
spanned 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.’’ Zahringer v. Zah-
ringer, supra, 124 Conn. App. 689. ‘‘[T]he financial
awards in a marital dissolution case should be based
on the parties’ current financial circumstances to the
extent reasonably possible. . . . [T]he proper date for
determining income, for the purpose of deciding
whether the plaintiff’s current alimony award should
be increased, decreased or remain the same, is the date
of hearing on the motion to modify following the
remand from our Supreme Court.’’ (Citations omitted;
internal quotation marks omitted.) Id., 688.7
On appeal, the defendant claims that the court
improperly determined that the parties’ net weekly
income, at the time of the dissolution judgment, was
as represented in the parties’ June 4, 2009 financial
affidavits. Those were the affidavits submitted by the
parties and relied on by Judge Barall at the time the
dissolution judgment was rendered. At the rehearing
held on April 21, 2014, the defendant submitted the
plaintiff’s June 4, 2009 financial affidavit as an exhibit,
and the plaintiff submitted the defendant’s June 4, 2009
financial affidavit as an exhibit, all without objection.
Moreover, both parties were questioned as to the infor-
mation provided in those financial affidavits. During
the closing argument, plaintiff’s counsel specifically
referred to the defendant’s June 4, 2009 financial affida-
vit. The defendant now argues, however, that it was
improper for the court to rely on those financial affida-
vits because Judge Barall found the defendant’s net
weekly income to be $2674 at the time of the dissolution
judgment, rather than $2587 as stated in his June 4,
2009 financial affidavit.8 No such argument was made
before the court at the April 21, 2014 rehearing.
Additionally, the defendant cites no case law or statu-
tory authority in support of his argument. Further, the
defendant has presented no persuasive reason why the
trial court should not have been allowed to rely on
exhibits that were properly admitted at the rehearing
on the defendant’s motion for modification. ‘‘The accu-
racy of financial affidavits submitted at the time of
dissolution has proven to be central to the issue of
modification on appeal. . . . As a result, [o]ur cases
have uniformly emphasized the need for full and frank
disclosure in . . . [financial] affidavits. A court is enti-
tled to rely upon the truth and accuracy of sworn state-
ments required by . . . the Practice Book, and a
misrepresentation of assets and income is a serious and
intolerable dereliction on the part of the affiant which
goes to the very heart of the judicial proceeding.’’ (Cita-
tion omitted; internal quotation marks omitted.) Fulton
v. Fulton, 156 Conn. App. 739, 746–47, 116 A.3d 311
(2015). For these reasons, the defendant’s claim fails.
The defendant additionally claims that the court
abused its discretion in denying his motion for alimony
modification because it stated that it had considered
the factors set forth in § 46b-82 ‘‘despite the fact that
none of these factors were in evidence.’’ The parties
agree that the evidence presented at the April 21, 2014
rehearing related only to the financial circumstances
of the parties. In fact, no less than three times, the
defendant emphasizes in his appellate brief that neither
party presented evidence as to the § 46b-82 factors that
a court must consider if it has found a substantial
change in financial circumstances.
The defendant’s argument is without merit. First, the
court never found, for purposes of the defendant’s
request to reduce his alimony obligation, that there had
been a substantial change in either party’s financial
circumstances. The defendant’s burden to establish a
substantial change in financial circumstances was a
condition precedent to the court’s consideration of his
motion to modify his weekly alimony obligation from
$777 to $120. Only after the defendant satisfied that
requirement could the court properly consider his
motion to modify his spousal support obligation. Olson
v. Mohammadu, supra, 310 Conn. 674. Second, any
failure to present evidence as to the § 46b-82 factors
was a failure by the defendant to satisfy his burden to
‘‘demonstrate that circumstances have changed since
the last court order such that it would be unjust or
inequitable to hold either party to it.’’ (Internal quota-
tion marks omitted.) Id., 672. It was neither the plain-
tiff’s responsibility to provide, nor the court’s
responsibility to elicit, information as to those factors.
On the basis of this record, we conclude that the court
did not abuse its discretion in denying the defendant’s
motion to reduce his alimony obligation.
B
Child Support
The defendant claims that the trial court abused its
discretion in denying his motion to modify his child
support obligation because ‘‘the court improperly
applied the Child Support Guidelines by overriding the
definition of permissible deductions from gross income
to calculate net income. Specifically, the court held that
the defendant’s deductions for insurance premiums and
his health care account were not permissible deduc-
tions. This was plain error.’’
The defendant’s analysis of this claim consists of a
citation to a provision in the child support and arrearage
guidelines and the statement that the defendant did not
have a deduction for his health care account on his
financial affidavit.9 We conclude that the defendant’s
claim is inadequately briefed and that it would be specu-
lative on the part of this court to determine that the
trial court would have reduced the defendant’s child
support obligation if he had demonstrated that such
deductions were appropriate.
We first note that the defendant has devoted less
than one page to his argument on this claim. Where a
claim is simply asserted but thereafter receives only
cursory attention in the brief without substantive dis-
cussion or citation of authorities, it is deemed to be
abandoned. See Bicio v. Brewer, 92 Conn. App. 158,
172, 884 A.2d 12 (2005) (this court not required to review
inadequately briefed claims); see also Barros v. Barros,
309 Conn. 499, 503 n.4, 72 A.3d 367 (2013) (claim deemed
abandoned for inadequate briefing); State v. Weston,
164 Conn. 635, 636, 325 A.2d 457 (1973) (claim not
briefed on appeal, although argued during oral argu-
ment, treated as abandoned); Braham v. Newbould, 160
Conn. App. 294, 312 n.15, 124 A.3d 977 (2015) (claim
abandoned that was not properly briefed because ‘‘[i]t
is not the role of this court to undertake the legal
research and analyze the facts in support of a claim or
argument when it has not been briefed adequately’’
[internal quotation marks omitted]).
The defendant’s claim, even if deemed adequately
briefed, also fails for the following reason. The court,
in its memorandum of decision, as amended, stated:
‘‘The court has carefully considered the facts of this
case, the relevant case law and the provisions of sec-
tions 46b-82 and 46b-86, and declines to modify the
defendant’s support obligations.’’ Given the court’s
statement of the basis for its conclusion, it would be
sheer speculation to assume that had the court credited
the subject deductions it would have granted the defen-
dant’s motion to reduce his child support payments.
When presented with the defendant’s modification
motion, the court had to first determine whether there
had been a substantial change in the financial circum-
stances of one or both of the parties. Then, if the court
found a substantial change in circumstances, it properly
could consider the motion and, on the basis of the
criteria set forth in General Statutes § 46b-84, it could
make an order for modification. Fox v. Fox, 152 Conn.
App. 611, 621, 99 A.3d 1206, cert. denied, 314 Conn. 945,
103 A.3d 977 (2014). ‘‘[T]hese criteria, as outlined in
. . . § [46b-84], require the court to consider the needs
and financial resources of each of the parties and their
children . . . .’’ (Footnote omitted; internal quotation
marks omitted.) Id., 620–21.
The court did not specify which particular facts it
considered to be determinative, nor did it cite the case
law upon which it relied. The court mentioned statutory
provisions, but did not specify which criteria in those
statutes that it found to be most compelling in this
case. The court could have provided a more thorough
discussion of the basis for its denial, but it was not
required to do so.10 The court ‘‘need not, however, make
explicit reference to the statutory criteria that it consid-
ered in making its decision or make express finding[s]
as to each statutory factor. . . . Nor need it give each
factor equal weight.’’ (Citation omitted; internal quota-
tion marks omitted.) Dombrowski v. Noyes-Dombrow-
ski, 273 Conn. 127, 137, 869 A.2d 164 (2005). ‘‘We
recognize the well established presumption that a court
has acted correctly when entering its orders, and we will
affirm a court’s orders if the record contains sufficient
evidence to support them.’’ Coury v. Coury, 161 Conn.
App. 271, 286, 128 A.3d 517 (2015). Here, the court’s
determinations are supported by the record. For all of
these reasons, we conclude that the trial court did not
abuse its discretion in denying the defendant’s motion
to reduce his child support obligation.
II
ORDER FOR ARREARAGE PAYMENT
The defendant’s next claim is that Judge Albis
improperly issued an order that required him to pay
the plaintiff the sum of $6002, as set forth in a previous
arrearage order, when the previous arrearage order had
been suspended until all of the defendant’s appeals were
resolved. The following additional facts are necessary
to the resolution of this claim.
On April 4, 2013, the court, Carbonneau, J., entered
the following order: ‘‘The defendant owes the plaintiff
$6002, subject to any corrections, as his 66 [percent]
of work related day care costs under the terms of the
final judgment. Good faith payments shall be made
within 60 days.’’ This ruling was made after the defen-
dant had appealed from Judge Adelman’s 2010 denial
of his motion for modification and after this court’s
decision affirming the trial court, but before the
Supreme Court issued its decision on December 10,
2013, reversing this court’s judgment and remanding
the case back to this court with direction to remand
the case to the trial court for a new hearing on the
defendant’s modification motion. The defendant main-
tained that the order to pay the $6002 arrearage was
stayed because of the pending appeal. There were no
good faith payments made by the defendant toward the
$6002 day care expense arrearage.
On June 11, 2013, Judge Carbonneau, while presiding
over a hearing on similar day care issues between the
parties, referenced the pending Supreme Court appeal
and discussed past due and future payments for day
care expenses. Recognizing that the Supreme Court
could issue a decision that would affect the percentage
of such expenses owed by the defendant, Judge Car-
bonneau asked the parties if they could agree that
‘‘going forward, the parties will split fifty/fifty until we
get some guidance from the Supreme Court. It may
jump back up to 66 percent because those orders can
only be altered by the Supreme Court at this point, but
at least if you start at fifty/fifty, there would not be a
great correction down the road depending on what the
Supreme Court does.’’ After further remarks by counsel,
Judge Carbonneau stated: ‘‘And clearly I am temporiz-
ing until we get some finality from the appeal process.
The [defendant] is entitled to the appeal process. We
will see how it goes. This gives you a plan forward.’’
When questioned further by the plaintiff, Judge Car-
bonneau responded: ‘‘The past bills we’ll hold in abey-
ance right now. You may make any argument that might
pertain to that arrearage at a future time when we have
the direction of the Supreme Court.’’
On September 10, 2015, which was nearly two years
after the issuance of the Supreme Court’s decision, the
plaintiff filed a motion for contempt and/or order that
would require the defendant to pay her the $6002 arrear-
age that had been found in April, 2013. The defendant
claimed that Judge Carbonneau’s ‘‘abeyance order’’ con-
tinued until all of his appeals had concluded, including
the appeal that he had taken from Judge Ficeto’s denial
of his motion for modification after the April 21, 2014
rehearing. A hearing on the plaintiff’s motion was held
before Judge Albis on January 19, 2016. On February
10, 2016, he issued his memorandum of decision. Judge
Albis concluded that Judge Carbonneau’s ‘‘going for-
ward . . . split fifty/fifty’’ ruling primarily was con-
cerned with the future day care expenses, not the $6002
arrearage found in April, 2013, for past day care
expenses.
Although Judge Albis did not find the defendant in
contempt for a wilful violation of the arrearage order,
because he credited the defendant’s statement that he
believed his appeals were ‘‘part of one continuous
appeal process,’’ Judge Albis nevertheless concluded
that the ‘‘abeyance order’’ ended when the Supreme
Court issued its remand decision and the trial court
reconsidered and decided the modification motion.
Judge Albis determined that there was no stay in place
with respect to the April, 2013 day care expense arrear-
age order, that the defendant’s present appeal was new
and distinct from his prior appeal to the Supreme Court,
and that he was not excused from paying the plaintiff
the previously ordered sum of $6002. Accordingly, the
court ordered the defendant to pay the plaintiff $6002
in consecutive monthly installments of $1000 each. This
ruling is the subject of the defendant’s amended appeal.
The defendant’s claim on appeal is that the court
improperly ‘‘vacat[ed] a valid prior order of the trial
court holding arrearage payments in abeyance.’’ Specifi-
cally, the defendant argues that Judge Albis’ determina-
tion should be reversed by this court because Judge
Albis failed to follow the law of the case doctrine.
We disagree.
Assuming arguendo that Judge Carbonneau’s abey-
ance order was ambiguous as to whether it would
remain in effect until the Supreme Court issued its
decision or until all of the defendant’s appeals had been
resolved, this claim fails because the law of the case
doctrine did not compel Judge Albis to follow the prior
order. The law of the case doctrine provides that
‘‘[w]here a matter has previously been ruled upon inter-
locutorily, the court in a subsequent proceeding in the
case may treat that decision as the law of the case, if
it is of the opinion that the issue was correctly decided,
in the absence of some new or overriding circum-
stance.’’ (Internal quotation marks omitted.) Wasko v.
Manella, 87 Conn. App. 390, 395, 865 A.2d 1223 (2005).
‘‘A judge is not bound to follow the decisions of another
judge made at an earlier stage of the proceedings, and
if the same point is again raised he has the same right
to reconsider the question as if he had himself made
the original decision. . . . [O]ne judge may, in a proper
case, vacate, modify, or depart from an interlocutory
order or ruling of another judge in the same case, upon
a question of law.’’ (Emphasis added; internal quotation
marks omitted.) Wagner v. Clark Equipment Co., 259
Conn. 114, 130–31, 788 A.2d 83 (2002).
By the time the plaintiff’s motion for contempt and/or
order had been argued before Judge Albis, the Supreme
Court’s decision had been issued, the parties had partic-
ipated in a rehearing on the defendant’s modification
motion, Judge Ficeto had denied the modification
motion, and the defendant had filed another appeal with
this court. Clearly, there were new circumstances for
Judge Albis to consider. At this point, the April, 2013
order requiring the defendant to pay the $6002 arrearage
for his share of unpaid child care expenses was several
years old. We conclude that the ruling of Judge Albis
was not improper.
III
APPELLATE ATTORNEY’S FEES
The defendant’s final claim is that Judge Albis
improperly granted the plaintiff’s motion for appellate
attorney’s fees to defend the present appeal.11 The
defendant argues that the court erroneously determined
that the plaintiff did not have sufficient liquid assets to
pay her own fees because she had ‘‘substantial retire-
ment assets’’ and her ‘‘financial situation has dramati-
cally improved.’’
‘‘[General Statutes §] 46b-62 (a) authorizes the trial
court to award attorney’s fees in a dissolution action
when appropriate in light of the respective financial
abilities of the parties and the equitable factors listed
in § 46b-82. . . . [W]e [have] stated three broad princi-
ples by which these statutory criteria are to be applied.
First, such awards should not be made merely because
the obligor has demonstrated an ability to pay. Second,
where both parties are financially able to pay their own
fees and expenses, they should be permitted to do so.
Third, where, because of other orders, the potential
obligee has ample liquid funds, an allowance of [attor-
ney’s] fees is not justified. . . .
‘‘A determination of what constitutes ample liquid
funds . . . requires . . . an examination of the total
assets of the parties at the time the award is made. . . .
We have recognized, however, that [t]he availability of
sufficient cash to pay one’s attorney’s fees is not an
absolute litmus test . . . . [A] trial court’s discretion
should be guided so that its decision regarding attor-
ney’s fees does not undermine its purpose in making
any other financial award. . . .
‘‘Whether to allow [attorney’s] fees, and if so in what
amount, calls for the exercise of judicial discretion by
the trial court. . . . An abuse of discretion in granting
[attorney’s] fees will be found only if [an appellate
court] determines that the trial court could not reason-
ably have concluded as it did.’’ (Citations omitted; inter-
nal quotation marks omitted.) Hornung v. Hornung,
323 Conn. 144, 169–70, A.3d (2016).
In the present case, following a hearing on the plain-
tiff’s motion for appellate attorney’s fees, Judge Albis
made the following findings: (1) the plaintiff did not
have sufficient liquid assets with which to pay her own
legal fees; (2) the plaintiff did not have sufficient income
to pay those fees without using some of the child sup-
port payments she receives from the defendant, which
would undermine the court’s prior child support order;
and (3) the income of the defendant would enable him
to pay the sum of $10,000, payable in monthly install-
ments of $1000, toward the plaintiff’s appellate legal
fees. The court was not persuaded by the defendant’s
argument that the plaintiff’s retirement assets consti-
tuted sufficient liquid assets that would enable the plain-
tiff to pay her own fees.12 The record supports Judge
Albis’ findings, and we, therefore, conclude that he did
not abuse his discretion in awarding the plaintiff appel-
late attorney’s fees to defend the present appeal.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s last name has been spelled as ‘‘Olsen’’ and ‘‘Olson’’ during
these proceedings. In her complaint and her tax documents, submitted as
exhibits at trial and the April 21, 2014 remand hearing, the plaintiff spelled
her name ‘‘Olson.’’
2
The court ordered that the alimony ‘‘shall be modifiable only as to
amount’’ and ‘‘shall terminate upon the earliest of the happening of one of
the following events . . . [the] death of either party . . . [the] [w]ife’s
remarriage; or . . . five (5) years from the date of dissolution.’’
3
The court modified its decision in response to the defendant’s motion
for reconsideration and reargument filed on June 2, 2014.
4
According to the court, ‘‘[i]t was during this brief period of unemployment
and part-time employment that [the defendant] filed his motion for modifica-
tion of child support and alimony.’’
5
In the August 5, 2009 judgment of dissolution, the plaintiff was required
to maintain medical insurance through her place of employment for the
benefit of the minor child.
6
The remainder of the court’s orders in the February 10, 2016 memoran-
dum of decision have not been challenged by either party.
7
In the present case, our Supreme Court emphasized the applicability of
the holding in Zahringer v. Zahringer, supra, 124 Conn. App. 672, for pur-
poses of the remand hearing on the defendant’s motion for modification.
In footnote 16 of Olson v. Mohammadu, supra, 310 Conn. 686, our Supreme
Court stated: ‘‘We note that at oral argument before this court, both parties
agreed that, if this court were to conclude that the trial court improperly
denied the defendant’s motion for modification, a rehearing on the modifica-
tion motion would be appropriate. In view of the time that has elapsed
since the defendant filed his amended motion for modification, both parties
further agreed that, if the trial court were to award a modification on
rehearing, the court should follow the principles articulated in Zahringer
v. Zahringer, 124 Conn. App. 672, 6 A.3d 141 (2010), in fashioning an
appropriate modification. See id., 689 (‘The retroactive award may take
into account the long time period between the date of filing a motion to
modify . . . 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 a result would be inequitable.’).’’ (Emphasis added.)
8
We note that the difference in the net weekly income amounts is less
than $100. Further, in the transcript wherein Judge Barall explains the basis
for his orders, he stated that he took into account the defendant’s figure in
his affidavit and made a slight adjustment for social security deductions.
9
The defendant’s statement is incorrect. The defendant’s signed and dated
October 25, 2010 financial affidavit lists a deduction of $41.96 per week
attributable to ‘‘Health Care Acct.’’
10
The defendant sought no articulation of the trial court’s reasoning. See
Practice Book § 66-5.
11
‘‘We note that the trial court is not limited to awarding attorney’s fees
for proceedings at the trial level. Connecticut courts have permitted post-
judgment awards of attorney’s fees to defend an appeal.’’ Pena v. Gladstone,
168 Conn. App. 175, 187 n.10, A.3d (2016).
12
As noted by the court: ‘‘The defendant suggests that the plaintiff use
her substantial retirement assets to pay her own legal fees for defending
the appeal, even if it means incurring taxes and penalties for premature
withdrawal. The plaintiff receives no current distributions from her retire-
ment accounts.’’