Overley v. Overley ( 2021 )

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MONICA R. OVERLEY v. MARK S. OVERLEY
(AC 43249)
Bright, C. J., and Clark and Eveleigh, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and making certain orders regard-
ing the parties’ finances and custody of the parties’ three minor chil-
dren. Held:
1. This court declined to review the defendant’s claim that the trial court
improperly awarded the marital home to the plaintiff without first award-
ing him a credit for the separate property he contributed to its purchase:
the defendant failed to distinctly raise at trial the claim that the funds
he withdrew from a trust to pay for the home were his separate property,
and, instead, had maintained that the funds were a marital liability, and
that the court was required to allocate that liability and the marital
home between the parties; moreover, although the plaintiff did not argue
that the defendant failed to preserve this claim, it would have been
manifestly unjust to both the plaintiff and the trial court to have permit-
ted the defendant to pursue this claim on appeal.
2. The trial court improperly ordered that the defendant may not, under
any circumstances, deduct alimony payments from his income for tax
purposes, which was consistent with recently enacted federal tax laws
but contravened the parties’ prenuptial agreement; contrary to the plain-
tiff’s argument, the defendant’s claim that this order was improper was,
in part, preserved for appeal, because, although the defendant could
have articulated more fully to the trial court how it could have reconciled
the apparent conflict between the parties’ agreement and the new federal
tax laws, both the plaintiff and the trial court had notice of the defen-
dant’s claim, he consistently sought enforcement of the alimony provi-
sion of the parties’ prenuptial agreement as written, he explained to the
court that alimony payments remained deductible in Puerto Rico where
he resided, and the plaintiff addressed the issue in her posttrial brief;
moreover, the defendant’s additional, related claims were not raised at
trial and were, therefore, unreviewable on appeal; furthermore, the
court’s order was overly broad in that it would prevent the defendant
from deducting his alimony payments in accordance with the parties’
prenuptial agreement even if his income tax obligations are governed
by the laws of a jurisdiction that would otherwise permit such deductions
and even if federal tax laws are amended in the future to permit such
deductions.
3. The trial court did not abuse its discretion in denying the defendant’s
motion for a continuance to secure new counsel: the court’s order was
reasonable given that the dissolution action had been pending for more
than two years and the defendant sought a continuance of up to three
months, less than one week before trial was scheduled to begin; more-
over, the court properly balanced the parties’ competing interests and
reasonably concluded that the plaintiff’s interest in a prompt and final
resolution of the matter outweighed any prejudice the defendant might
experience if he was required to proceed as a self-represented party,
particularly because the defendant had previously been represented by
two different attorneys who had each withdrawn on the ground of a
breakdown in the attorney-client relationship, and to grant a continuance
on the eve of trial could have resulted in a prolonged delay in a matter
involving the well-being of minor children.
Argued September 14—officially released December 28, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield; thereafter, the matter was transferred
to the Regional Family Trial Docket at Middletown;
subsequently, the court, Hon. Gerard I. Adelman, judge
trial referee, denied the defendant’s motion for a contin-
uance; thereafter, the matter was tried to the court,
Hon. Gerard I. Adelman, judge trial referee; judgment
dissolving the marriage and granting certain other relief,
from which the defendant appealed to this court.
Affirmed in part; reversed in part; further proceed-
ings.
Anthony A. Piazza, with whom, on the brief, was
John H. Van Lenten, for the appellant (defendant).
Sarah E. Murray, for the appellee (plaintiff).
Opinion
CLARK, J. The defendant, Mark S. Overley, appeals
from the judgment of the trial court dissolving his mar-
riage to the plaintiff, Monica R. Overley. He claims that
the court improperly (1) failed to award him a separate
property credit for his contribution to the purchase of
the marital home prior to distributing that property as
a marital asset, (2) contravened the parties’ prenuptial
agreement governing the tax treatment of alimony pay-
ments he was ordered to pay the plaintiff, and (3) denied
his request for a continuance to obtain new counsel.
We disagree with the defendant’s first and third claims
but agree, in part, with his second claim. We therefore
reverse in part and affirm in part the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. In 2006, the parties were married
and established residence in New York. Prior to the
marriage, they executed a prenuptial agreement (agree-
ment). The agreement provides that, in the event of a
marital dissolution, if the value of the marital assets do
not exceed a specified amount and the parties are
unable to agree upon an equitable division of the marital
assets, either party may seek a distribution in court. The
agreement includes a choice of law provision, which
provides that it shall be interpreted and construed under
the laws of New York. Additionally, it stipulates that
the plaintiff is entitled to alimony. Under the agreement,
alimony payments are to be taxable as income to the
plaintiff and deductible from the defendant’s income.
During the marriage, the parties moved from New
York to Connecticut and had three children together.
The defendant primarily worked in finance, but later
formed two limited liability companies that raise capital
for investment managers. The plaintiff did not work
outside the home on a regular basis and assumed the
majority of the childcare responsibilities. In 2014, the
defendant informed the plaintiff that he wanted to move
the family and his businesses to Puerto Rico to take
advantage of its more favorable tax laws. The plaintiff
strongly opposed the idea because of the community
ties she and the children had developed in Connecticut.
In 2016, however, she agreed to relocate to Puerto
Rico on a trial basis, on the condition that the parties
buy a home in Connecticut where the family could
return if the move proved unsuccessful. Consequently,
the parties purchased a home in Westport. The defen-
dant moved to Puerto Rico in May, 2016, and the plaintiff
and their children joined him shortly thereafter.
In April, 2017, the plaintiff and the children moved
back to Connecticut. The plaintiff commenced this dis-
solution action on April 25, 2017. Because the defendant
continued to reside in Puerto Rico, a lengthy dispute
followed regarding whether Puerto Rico or Connecticut
had jurisdiction to resolve the matters involving the
parties’ children. On July 27, 2018, the dispute was
resolved in favor of Connecticut assuming jurisdiction
over the child support and custody issues. Trial initially
was scheduled to take place in November, 2018. The
defendant was represented by counsel at that time.
When the parties appeared for trial, however, the court,
for administrative reasons, continued the trial and
transferred the case to the Regional Family Trial
Docket.
On May 7, 2019, less than one week before the
rescheduled dissolution trial was to commence, the
defendant’s counsel moved to withdraw his appearance
and for a continuance in order to provide the defendant
time to secure replacement counsel. The next day, the
defendant filed an appearance as a self-represented
party. The court denied the motion for a continuance.
At trial, on May 13, 2019, the defendant renewed his
motion for a continuance to secure replacement coun-
sel. After hearing from the defendant and the plaintiff,
who was represented by counsel, the court denied the
motion. The parties were the only witnesses at trial, and
neither party contested the validity or enforceability of
the agreement. After the conclusion of evidence, the
court ordered the parties to submit posttrial briefs con-
cerning alimony and the distribution of marital prop-
erty. The defendant retained counsel, who appeared in
the case and filed a posttrial brief on his behalf.
On July 11, 2019, the court issued its memorandum
of decision dissolving the marriage. In its decision, the
court ordered the defendant to quitclaim his interest
in the marital home to the plaintiff and to pay alimony
in the amount of $10,000 per month, terminating upon
the death of either party, the plaintiff’s remarriage, or
July 1, 2028. Contrary to the parties’ agreement, the
court also ordered that the defendant’s alimony pay-
ments shall be nondeductible from his income and non-
taxable as income to the plaintiff. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that the trial court improp-
erly awarded the marital home to the plaintiff without
first awarding him a credit for the separate property he
contributed to its purchase, which he claims is required
under New York law. Our review of the record discloses
that the defendant never raised this claim in the trial
court. Accordingly, we decline to review it.
The following additional facts are relevant to our
decision. The defendant is a cotrustee and beneficiary
of a trust that was created prior to the marriage. To
fund a $700,000 cash purchase of the marital home in
Westport, the defendant withdrew $699,000 from the
trust. At trial, the parties agreed that the defendant’s
interest in the trust is the defendant’s separate property
and that, pursuant to the parties’ agreement, the home
was marital property because it was purchased during
the marriage and title was in both parties’ names.
Under the agreement, if the pretax value of marital
assets did not exceed a certain amount in accordance
with a formula set forth in the agreement and the parties
were unable to agree upon a division of the marital
assets, either party could ask a court to divide the mari-
tal assets in accordance with New York law. Both par-
ties agreed, and the trial court found, that the value of
the marital assets did not exceed the threshold amount
set forth in the agreement and that they had not reached
an agreement with respect to the division of marital
assets. As a result, the court was required to divide the
marital assets in accordance with New York law.1
The court found that the value of the home was
$750,000 and that the total value of all marital assets
equaled approximately $902,000. The home thus com-
prised the bulk of the parties’ marital property. The
defendant contended throughout the proceedings that
he had borrowed the money used to purchase the home
from the trust. Accordingly, in his financial affidavits,
the defendant classified the $699,000 withdrawal from
the trust as a marital liability. In his posttrial brief, the
defendant argued that the money withdrawn from the
trust was a joint liability and that the court should
exercise its power of equitable distribution to order
that the marital home be sold and the proceeds be used
to satisfy that liability.2 At trial, however, the defendant
had also testified that, in the past, he had taken
advances from the trust in the form of loans for the
purpose of delaying or avoiding the tax consequences
of distributions. The plaintiff asked the court to award
her the home to maintain stability for the parties’ chil-
dren and contended that the trust loan was not a genu-
ine debt but, rather, an advance against the defendant’s
future distributions from the trust.
In its memorandum of decision, the court ultimately
found that the funds the defendant withdrew from the
trust to buy the marital home were, in fact, ‘‘distribu-
tions called loans to avoid tax consequences.’’3 Pursuant
to New York’s equitable distribution law, the court
determined that the plaintiff should retain the home
and ordered the defendant to quitclaim his rights and
interest therein to the plaintiff, while the defendant
‘‘assumed responsibility—if any—for the loan from the
[trust] used to purchase that property.’’
On appeal, the defendant characterizes the funds
withdrawn from the trust to purchase the home as his
separate property, not a marital liability, and claims for
the first time that the court was required to award him
a separate property credit in the amount of those funds
prior to distributing the remaining value of the home
as a marital asset. He argues that New York law entitles
a party who contributes separate property toward the
purchase of a marital asset to a credit in the amount
so contributed before marital property is distributed
between the parties in a dissolution action. See, e.g.,
Jacobi v. Jacobi, 118 App. Div. 3d 1285, 1286, 988
N.Y.S.2d 339 (2014) (spouse entitled to credit for contri-
bution of separate property toward purchase of mari-
tal home).
During oral argument, however, the defendant con-
ceded that he never made this argument in the trial
court. Our review of the record confirms that, through-
out the dissolution proceedings, the defendant main-
tained that the funds he withdrew from the trust to pay
for the home were a loan that constituted a marital
liability, and that, in contrast to the separate property
credit theory he advances on appeal, the court was
required to allocate that liability and the marital home
between the parties in accordance with New York’s
equitable distribution scheme. The court ultimately
adopted that approach and, in the exercise of its sub-
stantial discretion; see, e.g., Ragucci v. Ragucci, 170
App. Div. 3d 1481, 1482, 96 N.Y.S.3d 736 (2019) (‘‘[i]t is
well settled that trial courts are granted substantial
discretion in determining what distribution of marital
property—including debt—will be equitable under all
the circumstances’’ (internal quotation marks omit-
ted)); awarded the plaintiff the marital home and
assigned to the defendant the liability, if any, associated
with the funds he withdrew from the trust to purchase
the home.
‘‘It is fundamental that claims of error must be dis-
tinctly raised and decided in the trial court.’’ (Internal
quotation marks omitted.) DeChellis v. DeChellis, 190
Conn. App. 853, 860, 213 A.3d 1, cert. denied, 333 Conn.
913, 215 A.3d 1210 (2019). ‘‘[A]n appellate court is under
no obligation to consider a claim that is not distinctly
raised at the trial level. . . . The requirement that [a]
claim be raised distinctly means that it must be so stated
as to bring to the attention of the court the precise
matter on which its decision is being asked. . . . The
reason for the rule is obvious: to permit a party to raise
a claim on appeal that has not been raised at trial—
after it is too late for the trial court . . . to address
the claim—would encourage trial by ambuscade
. . . .’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Remillard v. Remillard, 297
Conn. 345, 351–52, 999 A.2d. 713 (2010); see also Prac-
tice Book § 60-5 (‘‘[t]he court shall not be bound to
consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial’’).
Although the plaintiff has not argued that the defen-
dant failed to preserve the separate property credit
theory he has advanced before this court, we conclude
that it would be manifestly unjust to both the plaintiff
and the trial court to permit the defendant to pursue
that claim in this appeal. ‘‘[A] party cannot present a
case to the trial court on one theory and then seek
appellate relief on a different one . . . . For this court
to . . . consider [a] claim on the basis of a specific
legal ground not raised during trial would . . . [be]
unfair both to the [court] and to the opposing party.’’
(Emphasis added; internal quotation marks omitted.)
State v. Rodriquez, 192 Conn. App. 115, 119, 217 A.3d
21 (2019). ‘‘We will not promote a Kafkaesque academic
test by which [a trial judge] may be determined on
appeal to have failed because of questions never asked
of [him] or issues never clearly presented to [him].’’
(Internal quotation marks omitted.) DiGiuseppe v.
DiGiuseppe, 174 Conn. App. 855, 864, 167 A.3d 411(2017). Accordingly, we decline to review the defen-
dant’s claim that the court misapplied New York law
when it failed to award him a separate property credit
for his contribution to the purchase of the marital home.
II
The defendant’s second claim is that the court
improperly contravened the parties’ agreement when it
ordered that he may not deduct for income tax purposes
the alimony payments he was ordered to pay the plain-
tiff. The plaintiff counters that the defendant’s claim is
not reviewable because the defendant failed to raise
this claim in the trial court and that, even if the issue
is reviewable, the court properly severed the alimony
tax provision from the agreement because it is unen-
forceable under the federal tax code. We conclude that
the defendant’s claim was raised at trial and, therefore,
is reviewable. We also conclude that the court’s order
unconditionally prohibiting the defendant from
deducting alimony payments from his income for tax
purposes was overly broad to the extent that it purports
(1) to preclude the defendant from taking such deduc-
tions if his income tax obligations are governed by the
laws of a jurisdiction that permits such deductions, or
(2) to preclude either party from seeking to enforce
the agreement in the future if the federal tax laws are
amended in a manner that permits enforcement of the
agreement.
A
We first address the plaintiff’s argument that the
defendant failed to preserve this claim. As we pre-
viously explained in part I of this opinion, in general,
a party must distinctly raise a claim at trial to preserve
the issue for appeal. See Practice Book § 60-5. ‘‘The
purpose of our preservation requirements is to ensure
fair notice of a party’s claims to both the trial court and
opposing parties.’’ (Internal quotation marks omitted.)
Moyher v. Moyher, 198 Conn. App. 334, 340, 232 A.3d
1212, cert. denied, 335 Conn. 965, 240 A.3d 284 (2020).
‘‘Thus, because the sine qua non of preservation is fair
notice to the trial court . . . the determination of
whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated below with
sufficient clarity to place the trial court on reasonable
notice of that very same claim.’’ (Citation omitted.)
State v. Jorge P., 308 Conn. 740, 753–54, 66 A.3d 869(2013).
In his December 20, 2017 answer and cross-com-
plaint, the defendant demanded enforcement of the
agreement. The agreement provided that alimony pay-
ments to the plaintiff ‘‘shall be includible in [the plain-
tiff’s] income and deductible from [the defendant’s]
income for income tax purposes.’’ Moreover, during the
course of the trial, the court asked the defendant to
explain whether he was proposing draft orders that
permitted him to deduct alimony payments from his
taxable income and how the recent changes to the fed-
eral tax laws repealing such deductions impacted his
proposal.4 The defendant responded that ‘‘in Puerto
Rico, [alimony] still is deductible. Alimony comes off
before you get to the taxable income number. So, there
is no change in the . . . Puerto Rico tax code in respect
to [my proposed orders].’’
Although the defendant’s posttrial brief did not spe-
cifically address what effect, if any, the federal tax law
change had on the parties’ agreement, the defendant
did, in his answer and cross-complaint, and closing
argument, urge the court to order alimony in accor-
dance with the parties’ agreement. The plaintiff argued,
conversely, that the tax provision in the parties’ agree-
ment was without force and effect because alimony
payments are no longer deductible due to the recent
changes to the federal tax laws and that, consequently,
the provision of the agreement permitting such deduc-
tions should be severed from the agreement.5 In its
memorandum of decision, the court discussed the
recent changes to the federal tax laws, but did so only
in the context of its analysis of a separate provision of
the agreement concerning the amount of alimony to
which the plaintiff was entitled under the agreement.
Ultimately, the court ordered, without discussion, that
‘‘alimony shall be nontaxable to the plaintiff and nonde-
ductible to the defendant.’’
On the basis of our review of the entire record, we
conclude that, under the specific circumstances of this
case, the defendant’s claim concerning the tax treat-
ment of his alimony payments was preserved because
both the plaintiff and the court had notice of that claim.
Throughout the proceedings, the defendant consis-
tently sought enforcement of the parties’ agreement as
written. More significantly, in response to the court’s
question about recent changes to the federal tax laws,
the defendant explained that alimony payments
remained deductible in Puerto Rico, where he resided,
and that, accordingly, the federal tax laws did not inter-
fere with the enforcement of the agreement or the draft
orders that he had proposed. Although the defendant
could have articulated more fully how the court could
have reconciled the apparent conflict between the par-
ties’ agreement and the new federal tax laws, we con-
clude that the issue was preserved.6
B
Having determined that the defendant’s claim is
reviewable, we now address whether the court improp-
erly prohibited him from deducting his alimony pay-
ments from his taxable income in any tax returns that
he may file in the future. We first set forth the standard
of review that governs our resolution of this claim.
Although the choice of law provision in the parties’
agreement provides that it ‘‘shall be interpreted, con-
strued and governed under the laws of the state of
New York,’’ Connecticut law guides our resolution of
all procedural issues, including the standard of review
to be applied in an appeal from a Connecticut court’s
judgment of dissolution. See Ferri v. Powell-Ferri, 326
Conn. 438, 447, 165 A.3d 1137 (2017) (matters of sub-
stance are analyzed according to parties’ choice of law
provision but procedural issues are governed by Con-
necticut law).
‘‘[A]lthough the court has broad equitable remedial
powers in the area of marital dissolutions . . . our
marital dissolution law is essentially a creature of, and
governed by, statute. . . . The Superior Court’s power
to grant divorces and thereby dissolve marriages comes
from statutory authority, and from such jurisdiction
over divorce derives the court’s jurisdiction to make
and enforce orders . . . . Thus, it is well settled that
judicial review of a trial court’s exercise of its broad
discretion in domestic relations cases is limited to the
questions of whether the court correctly applied the
law and could reasonably have concluded as it did. . . .
Notwithstanding the great deference accorded the trial
court in dissolution proceedings, a trial court’s ruling
. . . may be reversed if, in the exercise of its discretion,
the trial court applies the wrong standard of law.’’ (Cita-
tions omitted; internal quotation marks omitted.) Loug-
hlin v. Loughlin, 280 Conn. 632, 653–54, 910 A.2d 963(2006).
As the court noted in its decision, Congress recently
passed the Tax Cuts and Jobs Act (TCJA), which
included certain changes to the provisions of the federal
tax code governing the tax treatment of alimony pay-
ments. See footnote 4 of this opinion. Specifically, under
the TCJA, alimony payments are no longer considered
taxable income of the recipient and may not be
deducted from income by the payor. We agree with the
plaintiff that neither the parties’ prenuptial agreement
nor a decree of dissolution can supersede the federal
tax code. See Shenk v. C.I.R, 140 T.C. 200, 206 (2013)
(‘‘ultimately it is the Internal Revenue Code and not
[s]tate court orders that determine one’s eligibility to
claim a deduction for [f]ederal income tax purposes’’);
Lowe v. Commissioner of Internal Revenue, T. C. Memo
2016-206, pp. 7–8, 112 T.C.M. (CCH) 514 (T.C. 2016)
(‘‘as we have consistently held, a taxpayer’s eligibility
for deductions is determined under [f]ederal law—spe-
cifically, the express terms of the Internal Revenue
Code—and [s]tate courts cannot bind the Commis-
sioner [of Internal Revenue] to any particular treatment
of a taxpayer’’).
The claim that we have determined was preserved
for our review is more narrow, however. That claim
concerns whether the court should have entered orders
that preserved for the defendant the ability to enjoy the
benefits of the agreement to the extent permissible
under the laws of the jurisdiction governing his income
tax obligations. We agree with the defendant that the
trial court’s orders appear to preclude him from
doing so.
The order at issue simply states, without reference
to the parties’ agreement, that ‘‘alimony shall be nontax-
able to the plaintiff and nondeductible to the defen-
dant.’’ We presume, and on appeal the plaintiff con-
tends, that the trial court entered this order to make it
clear that the parties’ respective tax obligations are to
be governed by the recently enacted federal tax laws,
not the conflicting provisions of the agreement. As writ-
ten, however, the court’s order would prevent the defen-
dant from exercising his contractual right to deduct
alimony payments in accordance with the agreement
even if his income tax obligations are governed by the
laws of a jurisdiction that would otherwise permit such
deductions and even if federal tax laws are amended
in the future to permit such deductions. The court pro-
vided no justification for that result, and we suspect
that it did not intend to issue orders having that effect.
Accordingly, we conclude that the court improperly
ordered that the defendant may not, under any circum-
stances, deduct alimony payments from his income for
tax purposes. We, therefore, reverse the judgment of
the court as to tax deductibility and remand the case
with direction to enter a new order that the provision
of the agreement as to deductibility shall apply so long
as it does not conflict with the controlling law of any
jurisdiction in which the parties file tax returns.7
III
The defendant’s final claim is that the court abused
its discretion and denied him due process of law by
arbitrarily denying his motion for a continuance to
secure new counsel after his attorney withdrew from
the case. We are not persuaded.
As an initial matter, we note that the defendant did
not assert a constitutional claim before the trial court
and does not seek review of such a claim pursuant to
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 188 (2015). Rather, the defendant frames
the issue in his brief as whether the court abused its
discretion. As a result, we employ the abuse of discre-
tion standard in reviewing the court’s refusal to grant
his motion for a continuance. See Watrous v. Watrous,
108 Conn. App. 813, 826–27, 949 A.2d 557 (2008) (citing
Kelly v. Kelly, 85 Conn. App. 794, 799, 859 A.2d 60(2004)).
‘‘Decisions to grant or to deny continuances are very
often matters involving judicial economy, docket man-
agement or courtroom proceedings and, therefore, are
particularly within the province of a trial court. . . .
Whether to grant or to deny such motions clearly
involves discretion, and a reviewing court should not
disturb those decisions, unless there has been an abuse
of that discretion, absent a showing that a specific con-
stitutional right would be infringed. . . .
‘‘Our Supreme Court has articulated a number of
factors that appropriately may enter into an appellate
court’s review of a trial court’s exercise of its discretion
in denying a motion for a continuance. Although resis-
tant to precise cataloguing, such factors revolve around
the circumstances before the trial court at the time it
rendered its decision, including: the timeliness of the
request for continuance; the likely length of the delay;
the age and complexity of the case; the granting of
other continuances in the past; the impact of delay on
the litigants, witnesses, opposing counsel and the court;
the perceived legitimacy of the reasons proffered in sup-
port of the request; [and] the [party’s] personal responsi-
bility for the timing of the request . . . .’’ (Citation
omitted; internal quotation marks omitted.) Kelly v.
Kelly, supra, 85 Conn. App. 800.
‘‘In the event that the trial court acted unreasonably
in denying a continuance, the reviewing court must also
engage in harmless error analysis.’’ (Internal quotation
marks omitted.) Boccanfuso v. Daghoghi, 193 Conn.
App. 137, 169, 219 A.3d 400 (2019), aff’d, 337 Conn. 228,
253 A.3d 1 (2020). ‘‘[I]n order to establish reversible
error in nonconstitutional claims, the [appellant] must
prove both an abuse of discretion and harm . . . .’’
(Internal quotation marks omitted.) Cunniffe v. Cun-
niffe, 141 Conn. App. 227, 235, 60 A.3d 1051, cert. denied,
308 Conn. 934, 66 A.3d 497 (2013).
The record reveals that the defendant was repre-
sented by counsel in this action from May 8, 2017, until
February 14, 2019, when his first attorney filed a motion
to withdraw her appearance because the attorney-client
relationship had broken down irreparably.8 The defen-
dant subsequently secured new counsel, who filed an
appearance on February 25, 2019. On May 7, 2019, less
than one week before trial was scheduled to begin, the
defendant’s second attorney filed a motion to withdraw
in which he, too, cited a breakdown in the attorney-
client relationship and further stated that withdrawal
was necessary in order to comply with the Rules of
Professional Conduct.
At the time that the second attorney moved to with-
draw from the case, he also moved for a continuance
to afford the defendant additional time to secure
replacement counsel. The next day, however, the defen-
dant filed an appearance as a self-represented party.
The court issued a written order denying the request
for a continuance, noting that trial was scheduled to
commence the following Monday.9 Trial commenced
on May 13, 2019. Prior to the start of evidence, the
defendant renewed his request for a continuance by
way of an oral motion to the court on the grounds that
he had been unsuccessful in securing new counsel and
that he could not adequately represent his interests in
the proceedings. When the court inquired as to the
length of delay the defendant sought, the defendant
responded that one attorney with whom he had spoken
indicated needing at least three months to prepare
for trial.
The court then heard from the plaintiff’s counsel,
who opposed any continuance of the trial. Counsel
noted that the dissolution action had been filed more
than two years earlier, had been litigated extensively
during that time, and that the parties had been ready
to proceed to trial six months earlier when the matter
was postponed by the court. He also argued that the
plaintiff would be prejudiced by any further delay
because the defendant had accrued a substantial ali-
mony arrearage and there was an outstanding motion
for child support, pendente lite, which had been filed on
May 26, 2017. The plaintiff’s counsel further represented
that the defendant had not been providing adequate
child support and that out-of-pocket medical expenses,
medical insurance, and fees for the children’s extracur-
ricular activities had gone unpaid.
After hearing from both parties, the court denied the
defendant’s motion for a continuance, stating: ‘‘Well
. . . the national goal for dealing with cases involving
divorce, certainly with children, is to resolve the matter
within twelve months. Your case is some . . . 720 days
past the return date. This is a matter that’s been dock-
eted for a considerable period of time. . . . [Y]our oral
motion for continuance is . . . denied. We’ll go for-
ward. The [c]ourt will give you what latitude it can, but
self-represented parties are required to follow the same
rules and Practice Book obligations as . . . a licensed
attorney.’’ The case proceeded to trial with the defen-
dant acting in a self-represented capacity. After the
close of evidence but before the court rendered judg-
ment, the defendant secured new counsel, who
appeared and filed a posttrial brief on his behalf.
On the basis of our review of the entire record and
the factors articulated by our Supreme Court; see State
v. Rivera, 268 Conn. 351, 379, 844 A.2d 191 (2004); we
conclude that the court did not abuse its discretion
when it denied the defendant’s motion for a continu-
ance. At the time of trial, this action had been pending
for more than two years and had been heavily litigated.
In his oral motion for a continuance on the first day of
trial, the defendant informed the court that he might
need a continuance of up to three months.
In deciding whether to grant the continuance, the
court properly balanced the parties’ competing inter-
ests. The court reasonably concluded that the plaintiff’s
interest in a prompt and final resolution of the matter
outweighed any prejudice the defendant might experi-
ence if he was required to proceed as a self-represented
party. That conclusion was neither arbitrary nor unrea-
sonable, especially in light of the fact that two attorneys
representing the defendant had withdrawn on the
ground of a breakdown in the attorney-client relation-
ship. Under such circumstances, it was not unreason-
able for the court to conclude that granting a continu-
ance on the eve of trial could have resulted in a
prolonged delay in a matter involving the well-being of
minor children. See, e.g., Vossbrinck v. Vossbrinck, 194
Conn. 229, 230–32, 478 A.2d 1011 (1984), cert. denied,
471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985)
(court did not abuse its discretion in denying motion
for continuance after granting attorney’s motion to
withdraw based on disagreements between defendant
and counsel about how case should be litigated); Bevi-
lacqua v. Bevilacqua, 201 Conn. App. 261, 266–69, 242
A.3d 542 (2020) (court did not abuse its discretion in
denying motion for continuance in dissolution action
involving children that had been pending for more than
two years even though delays had been outside of par-
ties’ control); see also Thode v. Thode, 190 Conn. 694,
697, 462 A.2d 4 (1983) (court was ‘‘especially hesitant
to find an abuse of discretion where the [trial] court
ha[d] denied a motion for continuance made on the
day of trial’’); Day v. Commissioner of Correction, 118
Conn. App. 130, 134, 983 A.2d 869 (2009) (court did not
abuse its discretion when it denied motion for continu-
ance on first day of trial), cert. denied, 294 Conn. 930,
986 A.2d 1055 (2010).
Accordingly, we conclude that the defendant has
failed to demonstrate that the court abused its discre-
tion when it denied his motion for a continuance.10
The judgment is reversed only as to the order regard-
ing the tax consequences of alimony payments, and the
case is remanded for further proceedings consistent
with this opinion; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
New York is an equitable distribution state. See N.Y. Dom. Rel. Law
§ 236 (B) (5) (d) (McKinney 2020) (delineating fourteen factors court must
weigh when allocating marital property).
2
The defendant asserted and the court agreed that, under New York law,
marital property includes both assets and liabilities. See, e.g., Haggerty v.
Haggerty, 169 App. Div. 3d 1388, 1390, 92 N.Y.S.3d 773 (2019).
3
The defendant does not challenge the trial court’s finding on appeal.
The question of whether the funds were a loan or distribution does not alter
our resolution of this claim.
4
In 2017, Congress passed the Tax Cuts and Jobs Act (TCJA), Pub. L. No.
115-97, 131 Stat. 2054 (2017), which provides that, with respect to divorce
decrees and separation agreements executed on or after December 31, 2018,
a payor of alimony may not deduct such payments from taxable income
and a recipient of alimony is not required to report the receipt of alimony
payments as taxable income. See Tax Cuts and Jobs Act, Pub. L. No. 115-
97, § 11051, 131 Stat. 2054, 2089 (2017) (repealing 26 U.S.C. §§ 71 and 215).
In divorce decrees and separation agreements executed prior to the effective
date of the TCJA, a payor of alimony may deduct alimony payments from
taxable income, in which case a recipient of alimony is required to report
alimony as taxable income. 26 U.S.C. §§ 71 and 215 (2012).
5
The parties’ agreement contains a severability clause that provides: ‘‘In
the event of a determination that any provision of this Agreement is without
force and effect, the remaining provisions hereof shall not be affected
thereby, and the obligations of the parties shall continue in full force and
effect with respect to the performance of such remaining provisions.’’
6
We limit our review, however, to the precise issue that was fairly before
the trial court. In his brief to this court, the defendant additionally claims
that the court’s order improperly (1) precludes him from arguing to the
Internal Revenue Service that the alimony at issue in this case is ‘‘grandfath-
ered’’ under the Tax Cuts and Jobs Act; see footnote 4 of this opinion; and
the agreement is therefore enforceable, and (2) contravenes the parties’
agreement concerning how much alimony the plaintiff should receive
because at the time the parties entered the agreement, they both understood
and presumed that the alimony the plaintiff would receive would be taxable
income. The defendant thus contends that the court’s order results in an
unexpected ‘‘windfall’’ to the plaintiff that is inconsistent with the agreement.
Because the defendant did not raise either of these claims at trial, we decline
to review them on appeal. Instead, we limit our review to the discrete
claim that the court improperly contravened the parties’ agreement when
it ordered, without exception, that the defendant’s alimony payments shall
be nondeductible from his income for tax purposes.
7
We further conclude that the order at issue is severable and does not
require reconsideration of the court’s other financial orders on remand. ‘‘A
financial order is severable when it is not in any way interdependent with
other orders and is not improperly based on a factor that is linked to other
factors. . . . In other words, an order is severable if its impropriety does
not place the correctness of the other orders in question.’’ (Internal quotation
marks omitted.) Tuckman v. Tuckman, 308 Conn. 194, 214, 61 A.3d 449(2013). In the present case, the court’s order precluding the defendant from
deducting alimony payments from his taxable income, even if doing so is
or becomes permissible under the laws of the jurisdiction governing his
income tax obligations, is wholly independent of the court’s other financial
orders. Under the circumstances of this case, preserving for the defendant
the possibility of deducting from his income the amount of alimony pay-
ments he makes has no bearing on the other financial orders the court
issued and does not place the correctness of those orders in question.
8
The hearing on the motion to withdraw was scheduled for February 28,
2019. It was marked off by the court because the parties failed to appear.
9
A hearing regarding the motion to withdraw was scheduled to occur on
May 10, 2019. The hearing on that motion was marked off after the defendant
filed an appearance as a self-represented party.
10
Because we conclude that the court did not abuse its discretion, it is
unnecessary to consider whether its denial of the motion for a continuance
was harmless error. We note, however, that the record provides little support
for the defendant’s claim that he was prejudiced at all, much less to an
extent that would require reversal. The court was extremely accommodating
toward the defendant at trial. During the course of the trial, the court
patiently explained procedural matters and granted the defendant several
lengthy recesses to prepare. It permitted the defendant to submit filings
after the deadlines for doing so had passed and gave wide latitude to the
defendant during his own direct testimony and cross-examination of the
plaintiff. Nearly all of the exhibits the defendant offered into evidence were
admitted as full exhibits. Perhaps most significantly, after the close of evi-
dence, the defendant secured counsel, who raised issues and made legal
arguments in a posttrial brief that was filed on his behalf. Although the
defendant makes a number of arguments about how he was prejudiced by
virtue of having to proceed as a self-represented party at trial, his attempts
to demonstrate how or to what extent his self-represented status caused
any of those alleged harms are unpersuasive.