O'Donnell v. Bozzuti , 148 Conn. App. 80 ( 2014 )

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AMY L. O’DONNELL v. GEORGE A. BOZZUTI
(AC 35094)
DiPentima, C. J., and Robinson and Mihalakos, Js.*
Argued October 28, 2013—officially released February 11, 2014
(Appeal from Superior Court, judicial district of
Danbury, Winslow, J. [dissolution judgment]; Hon.
Sidney Axelrod, judge trial referee [motion for
modification].)
Thomas W. Beecher, for the appellant (defendant).
Amy L. O’Donnell, self-represented, the appellee
(plaintiff).
Opinion
ROBINSON, J. The defendant, George A. Bozzuti,
appeals from the judgment of the trial court modifying
the child support order, alimony award and the alloca-
tion of unreimbursed necessary medical and dental
expenses to be paid by the defendant to the plaintiff,
Amy L. O’Donnell. The defendant claims that the court
erred by (1) finding that there was a substantial change
in circumstances warranting a change in the financial
orders, and (2) failing to consider all of the factors in
General Statutes § 46b-82 when constructing the defen-
dant’s new financial obligations. We affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s appeal. On
December 15, 2009, after nineteen years of marriage,
the plaintiff brought an action seeking dissolution of
the marriage due to an irretrievable breakdown of the
marital relationship. The parties had three children,
ages nineteen, seventeen, and twelve, at the time of the
dissolution judgment. After three days of trial, the court,
Winslow, J., in its October 11, 2011 memorandum of
decision, found that the plaintiff was employed as a
real estate agent, and that, although the defendant pre-
viously had worked as a subcontractor consulting with
failing banks, he had been unemployed since July, 2011,
and remained unemployed at the time of trial. The court
ordered the defendant to pay $156 per week in child
support until July 7, 2012, when the parties’ middle child
would turn eighteen. Additionally, the court ordered
the defendant to pay $110 per week in child support
commencing July 8, 2012, until the parties’ ‘‘youngest
child attains the age of eighteen or graduates from high
school, whichever shall occur later, provided that child
support shall not continue beyond the age of nineteen.’’
The court also ordered the defendant to pay alimony
to the plaintiff in the amount of $100 per week, and
ordered the plaintiff and the defendant each to pay one
half of the unreimbursed necessary medical and dental
expenditures for the minor children not covered by
health insurance.
On June 13, 2012, the plaintiff moved for a modifica-
tion of the child support and alimony payments. In her
motion, the plaintiff claimed that there was a change in
circumstances warranting new financial orders because
the defendant had obtained gainful employment. After
a hearing on the matter, the court, Hon. Sidney Axelrod,
judge trial referee, increased the defendant’s child sup-
port obligation to $277 per week, retroactive to June
13, 2012, increased the alimony award to $400 per week,
and ordered the defendant to pay 65 percent of the
unreimbursed medical and dental expenses for the chil-
dren. The defendant filed a postjudgment motion to
reargue on September 14, 2012, which the court denied
on September 19, 2012. This appeal followed. Additional
facts will be set forth as necessary.
We first set forth our standard of review. ‘‘The stan-
dard of review in family matters is well settled. An
appellate court will not disturb a trial court’s orders in
domestic relations cases unless the court has abused
its discretion or it is found that it could not reasonably
conclude as it did, based on the facts presented. . . .
In determining whether a trial court has abused its
broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action. . . . Appellate review of a
trial court’s findings of fact is governed by the clearly
erroneous standard of review. The trial court’s findings
are binding upon this court unless they are clearly erro-
neous in light of the evidence and the pleadings in the
record as a whole. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) Weinstein v. Weinstein, 104 Conn. App. 482,
487–88, 934 A.2d 306 (2007), cert. denied, 285 Conn.
911, 943 A.2d 472 (2008).
I
The defendant claims that Judge Axelrod abused his
discretion by finding that there was a substantial change
in circumstances. He argues that, at the hearing on the
motion for modification, he showed that his income
actually had decreased from the amount of income used
to calculate the original financial orders. The defendant
contends that, although he was unemployed at the time
of the dissolution trial, Judge Winslow constructed the
original financial orders based on the defendant making
a net income of $1554 per week because the defendant
had included his previous salary as well as his unem-
ployment benefits on his financial affidavit. The defen-
dant, therefore, argues that the evidence actually
showed that he had a decrease in income because his
financial affidavit at the modification hearing averred
that he made a net income of $1484 per week. Addition-
ally, the defendant asserts that his company’s contract
with a bank in Oklahoma was only temporary, and that
he was unsure of how long it would continue. Accord-
ingly, the defendant argues that, in light of this evidence,
the finding that there was a substantial change in cir-
cumstances is clearly erroneous, and, therefore, Judge
Axelrod abused his discretion. We are not persuaded.
The following additional facts are necessary for our
resolution of this claim. At the dissolution trial, although
the defendant was unemployed, he provided a financial
affidavit that included his salary from a company called
Corvus as his principal means of income, claiming gross
earnings in the amount of $1584 per week. In addition,
the defendant claimed unemployment benefits of $585
per week. After deductions, the defendant listed his net
weekly income as $1554.
Judge Winslow found that for approximately three
years prior to trial, the defendant worked as a subcon-
tractor consulting with failed banks in different parts
of the country until the Federal Deposit Insurance Cor-
poration changed the way bank assets were handled.
Specifically, she found that: ‘‘From November, 2008,
through April, 2009, the defendant was in Scottsdale
Arizona. The next assignment was Fort Meyers, Florida
from May, 2009, through February, 2010. From March
1, 2010, until February 17, 2011, the defendant was in
Cleveland, Ohio. The work had long hours, but was well
compensated. . . . The defendant had gross earnings
of $197,000 in 2009, and $223,400 in 2010.’’ Judge Wins-
low also found that, from April, 2011, to July, 2011, the
defendant worked for Corvus earning $2075 per week
until he became unemployed in July, 2011. She then
found that the defendant was unemployed for approxi-
mately two months before the three day dissolution
trial, and that he received $585 gross per week in unem-
ployment compensation. Judge Winslow’s memoran-
dum of decision, however, does not specifically state
what particular pieces of evidence that were presented
at the trial were actually used to calculate the defen-
dant’s financial obligations.
Judge Winslow ordered the defendant to pay child
support in the amount of $156 per week until July 7,
2012, and in the amount of $110 per week thereafter.
She noted that the child support orders ‘‘[were] in accor-
dance with the child support guidelines of the state of
Connecticut.’’ Judge Winslow also ordered the defen-
dant to pay alimony to the plaintiff in the amount of
$100 per week, and that the parties would split equally
the unreimbursed necessary medical and dental
expenses of the children.
In June, 2012, the plaintiff filed the motion for modifi-
cation of the financial orders. The plaintiff stated that,
because the defendant had obtained gainful employ-
ment, there was a substantial change in circumstances
warranting a modification of the original financial
orders. On August 27, 2012, Judge Axelrod held a hear-
ing on this matter.
At the modification hearing, the defendant testified
that in mid-March, 2012, his corporation, Greenwood
Capital, LLC (Greenwood Capital), secured a contract
consulting with a failing bank in Oklahoma. Appended
to the defendant’s financial statement was a monthly
profit and loss statement for Greenwood Capital. The
defendant testified that he calculated Greenwood Capi-
tal’s gross monthly income by multiplying the weekly
gross amount by four. Judge Axelrod found that this
was an incorrect calculation because the weekly gross
amount should have been multiplied by 4.33 in order to
provide a more accurate monthly average.1 He adjusted
Greenwood Capital’s gross monthly income to account
for the mathematical error, allowed the defendant all
but one of his claimed business deductions, and found
Greenwood Capital’s net weekly income to be $2700.2
Judge Axelrod then adjusted the defendant’s gross
weekly income to account for his adjustment of Green-
wood Capital’s gross weekly income. Therefore,
although the defendant provided a financial affidavit
averring that his gross weekly income from Greenwood
Capital was $2415, Judge Axelrod found that the defen-
dant’s actual gross weekly income from Greenwood
Capital was $2700. Additionally, Judge Axelrod found
that the plaintiff’s gross weekly income was $646. He
then found that there had been a substantial change in
circumstances, ordered an increase in the defendant’s
weekly alimony and child support obligations, and
ordered the defendant to pay 65 percent of the unreim-
bursed necessary medical and dental expenses for
the children.
The case before us concerns the postjudgment modi-
fication of both an alimony award and a child support
order. Modification of alimony and child support is gov-
erned by General Statutes § 46b-86 (a), which provides
in relevant part: ‘‘Unless and to the extent that the
decree precludes modification . . . an order for ali-
mony or support . . . may, at any time thereafter, be
. . . altered or modified . . . upon a showing of a sub-
stantial change in the circumstances of either party
. . . .’’3 See Schade v. Schade, 110 Conn. App. 57, 62,
954 A.2d 846, cert. denied, 289 Conn. 945, 959 A.2d
1009 (2008); Weinstein v. Weinstein, supra, 104 Conn.
App. 491.
‘‘We previously have explained the specific method
by which a trial court should proceed with a motion
brought pursuant to § 46b-86 (a). 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 properly consider the motion
and, on the basis of the . . . § 46b-82 criteria, make an
order for modification. . . . The court has the author-
ity to issue a modification only if it conforms the order
to the distinct and definite changes in the circumstances
of the parties. . . . Simply put, before the court may
modify an alimony award [or child support order] pursu-
ant to § 46b-86, it must make a threshold finding of a
substantial change in circumstances with respect to one
of the parties.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Schade v. Schade,
supra, 110 Conn. App. 63.
The party seeking the modification has the burden
of proving a substantial change in circumstances. See
Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894,
(2007). ‘‘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.’’
Borkowski v. Borkowski, 228 Conn. 729, 737–38, 638
A.2d 1060 (1994). ‘‘A conclusion that there has been a
substantial change in financial circumstances justifying
a modification of alimony based only on income is erro-
neous; rather, the present overall circumstances of the
parties must be compared with the circumstances
existing at the time of the original award to determine if
there has been substantial change.’’ (Internal quotation
marks omitted.) Gay v. Gay, 70 Conn. App. 772, 781,
800 A.2d 1231 (2002), aff’d in part, 266 Conn. 641, 835
A.2d 1 (2003).
Judge Axelrod’s decision is silent as to the exact basis
for his finding that there was a substantial change in
circumstances. Nevertheless, we necessarily must pre-
sume that he acted correctly and uphold the findings
absent a showing by the appealing party that the finding
is clearly erroneous. See Weinstein v. Weinstein, supra,104 Conn. App. 487 (‘‘[i]n determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action’’ [internal quota-
tion marks omitted]).
Although the defendant claims that Judge Winslow
created the original financial orders using $1554 as the
defendant’s net weekly income, the record does not
support this argument. Filed with the original dissolu-
tion judgment were two sets of completed child support
guideline worksheets—one to determine the parties’
support obligation for one child, and the second to
determine the parties’ support obligation for two chil-
dren. Both worksheets listed the defendant’s net
income as $454 per week, supporting the conclusion
that the original orders were calculated based solely
on the defendant’s unemployment benefit of $585. Addi-
tionally, these worksheets provide for child support
orders of $110 and $156 per week, which were the
original child support orders of Judge Winslow, and
orders that she specifically found were ‘‘in accordance
with the child support guidelines of the state of Con-
necticut.’’
Moreover, although the defendant argues that his
financial statement at the modification hearing averred
that he made a net income of $1484 per week, Judge
Axelrod adjusted the defendant’s gross income to
account for the defendant’s incorrect calculation of
Greenwood Capital’s gross monthly income. Accord-
ingly, he found that the defendant’s financial statement
was incorrect and that his income actually was more
than he reported. It is, therefore, reasonable that Judge
Axelrod found that the defendant’s current financial
situation had substantially changed compared to his
financial situation at the time of the dissolution trial.
The defendant’s argument that his employment is
temporary and, therefore, should not have been consid-
ered by Judge Axelrod is defeated by his employment
history as found by Judge Winslow. Judge Winslow
found that, for approximately three years, the defendant
was a subcontractor who consulted with failed banks
in different cities across the country. It is, therefore,
reasonable that Judge Axelrod concluded that the
defendant’s new contract was not a temporary situa-
tion, but a return to the defendant’s previous occupa-
tion. Accordingly, in light of the testimony presented,
the findings and the record before us, we cannot con-
clude that Judge Axelrod’s finding that there was a
substantial change in circumstances is clearly errone-
ous, and, therefore, we conclude that he did not abuse
his discretion in modifying the financial orders.
II
The defendant also claims that Judge Axelrod abused
his discretion by failing to consider all of the factors
in § 46b-82 when constructing the defendant’s new
financial obligations. He argues that the court focused
only on his increase in income, and failed to consider
other factors, such as his ability to pay. We do not agree.
Section 46b-82 (a), as amended by No. 13-213, § 3,
of the 2013 Public Acts, provides in relevant part: ‘‘In
determining whether alimony shall be awarded, and
the duration and amount of the award, the court shall
consider . . . the length of the marriage, the causes
for the . . . dissolution of the marriage . . . 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, 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.’’
Our Supreme Court has held that these statutory fac-
tors are relevant in deciding when and how an alimony
award may be modified. See Borkowski v. Borkowski,
supra, 228 Conn. 737 (‘‘[o]nce 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 . . . are rel-
evant to the question of modification’’ [internal quota-
tion marks omitted]). ‘‘While the trial court must
consider each of these factors, no single factor is pre-
ferred over the others, and the court is accorded wide
latitude in varying the weight placed upon each item
under the peculiar circumstances of each case.’’ Elliott
v. Elliott, 14 Conn. App. 541, 547, 541 A.2d 905 (1988).
In its memorandum of decision on the motion for
modification, the court did not provide specific findings
as to its consideration of the § 46b-82 factors. The defen-
dant did not ask for an articulation. Nonetheless, the
court had before it not only the parties’ amount and
sources of income, but evidence of the parties’ debt,
assets, and occupations as provided by the parties’
financial statements. Further, because the dissolution
judgment was rendered less than one year before the
judgment of modification, it was reasonable for the
court to rely on the findings within, absent contradic-
tory evidence presented by the parties. It is, therefore,
reasonable that the court considered all of this informa-
tion in constructing the new financial orders. Thus, on
the basis of the record before us, and the presumption
afforded the court as to the correctness of its actions;
see Weinstein v. Weinstein, supra, 104 Conn. App.
487–88; we cannot conclude that the court abused its
discretion in its construction of the defendant’s finan-
cial obligations.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Judge Axelrod specifically found: ‘‘Well, there’s the problem, sir. I mean,
you can do this one of two ways. The shortcut way is to multiply it times
four point three. The long way is to [multiply] it out for the full calendar
year and divide it.’’
Multiplying the weekly gross amount by 4.33 is the shorthand way for
multiplying the weekly amount by fifty-two weeks per year and then dividing
that number by twelve months.
2
Judge Axelrod allowed the defendant all of his claimed business deduc-
tions except a $100 deduction listed as ‘‘medical expense.’’ He found that
this was not a proper business deduction.
3
General Statutes § 46b-86 (a) also provides that a child support order
may be modified if ‘‘the final order for child support substantially deviates
from the child support guidelines established pursuant to section 46b-215a,
unless there was a specific finding on the record that the application of the
guidelines would be inequitable or inappropriate.’’ This provision of the
statute, however, is not at issue in this appeal.