Leonova v. Leonov ( 2020 )

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ALINA LEONOVA v. STANISLAV LEONOV
(AC 42539)
Keller, Prescott and Devlin, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and from the trial court’s granting
of the plaintiff’s motions for attorney’s fees. Held:
1. The plaintiff could not prevail on his claim that the trial court abused its
discretion by improperly basing the supplemental alimony awarded to
the plaintiff on the defendant’s gross, rather than net, bonus income,
as the court had ample evidence at its disposal to adequately inform it
as to the defendant’s financial status with respect to his net bonus
income; the trial court did not state that it relied on the party’s gross
earnings to form the basis of its order, the record demonstrated both
parties’ net available income, including the defendant’s base pay, and
it was apparent that the court intended its supplemental alimony order
to be a function of the gross bonus income, which was a convenient
and economical method of calculation, and was distinguishable from
the court basing its order on the bonus gross income, especially as the
court did not use gross income to calculate the periodic alimony order
or the monthly and supplemental child support orders.
2. Contrary to the defendant’s claim, the trial court did not act in excess
of its statutory (§ 46b-81) authority applicable to dissolution proceedings
by ordering the parties to establish and to contribute to educational
savings plans, as the court properly exercised its authority pursuant to
the applicable statute (§ 46b-56) to secure contemplated future educa-
tional support orders by requiring each party to restore one half of the
gift money that had been donated to the parties’ two children from their
grandmother and to protect it for their future use; the court’s order to
establish the plans was eminently fair, as both parties were ordered to
contribute equally to their creation after they had used the children’s
gift money to renovate a home that the children will never occupy,
although the defendant claimed that § 46b-81 was limited to orders
regarding property division and did not permit the court to order future
investment decisions for the parties, the trial court did not exceed its
authority, as § 46b-81 was inapplicable, and that under the applicable
statutes (§§ 46b-56 and 46b-84), the court was authorized to provide
security for the enforcement of a future educational support order when
it retained jurisdiction to make an order providing the children with an
educational expectancy and, by ordering the establishment of two new
savings plans, the court was not distributing marital property from
one spouse to the other, but securing funds for the children’s future
educational needs.
3. The trial court erred in finding the defendant in contempt for violating
the automatic orders in effect, pursuant to the relevant rule of practice
(§ 25-5), by renting a seasonal ski lodge, as it was undisputed that the
plaintiff failed to file a written motion for contempt regarding the rental
of the ski lodge: the defendant had no notice that he was facing a
contempt finding with respect to the rental of the ski lodge, as the
plaintiff’s motion for contempt alleged only that the defendant violated
the automatic orders in purchasing cryptocurrency; furthermore, the
trial court did not abuse its discretion in ordering the defendant to
reimburse the plaintiff for one half of the cost the defendant incurred
in renting the ski lodge and to reimburse the plaintiff for one half of
the loss that he incurred as a result of a cryptocurrency investment
he made after the imposition of the automatic orders, as the record
sufficiently demonstrated that, contrary to the defendant’s claims, the
rental of the ski lodge and the investment in the cryptocurrency were
not made in the usual course of business as provided in the exception
to Practice Book § 25-5 for the transfer or disposal of marital property;
the defendant admitted that he did not request permission from the
plaintiff prior to purchasing the cryptocurrency, that he did not have
accounts to make that type of investment prior to the commencement
of the dissolution action, he did not discuss the rental of the seasonal
ski lodge with the plaintiff, and, although the parties took vacations
together during their marriage, the plaintiff did not ski, the parties never
rented a ski lodge during their marriage, and the defendant shared the
seasonal ski lodge with others; moreover, even in the absence of a
contempt finding, a trial court has the authority to compensate a spouse
for losses caused by a violation of the automatic orders by adjusting
the distribution of marital assets in the injured spouse’s favor.
4. The trial court did not abuse its discretion by failing to attribute an earning
capacity to the plaintiff in determining alimony and child support, the
record having sufficiently supported the court’s determination to base
its awards of child support and alimony on the plaintiff’s actual income
at the time of the dissolution, which it found to be zero, as such determi-
nation was not contrary to law; the court expressly stated that it had
considered all of the relevant statutes before rendering its judgment,
and the trial court has broad discretion in varying the weight placed on
each statutory criterion under the circumstances of each case.
5. The trial court did not err in awarding the plaintiff attorney’s fees for
representation during the marital dissolution proceedings, postjudgment
matters, and this appeal, as the trial court properly exercised its broad
discretion in granting the plaintiff’s motions for attorney’s fees; this
court, in affording the trial court every reasonable presumption in favor
of the correctness of its decision, found that the trial court could have
relied on evidence relevant to each statutory (§ 46b-82) criterion as it
applied to both parties, and that not awarding the plaintiff attorney’s
fees would have had the effect of undermining its other financial orders.
Argued June 15—officially released November 17, 2020
Procedural History
Action for the dissolution of marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford and tried to the court, Hon. Michael
E. Shay, judge trial referee; judgment dissolving the
marriage and granting certain other relief, from which
the defendant appealed to this court; thereafter, the
court, Hartley Moore, J., granted the plaintiff’s motions
for attorney’s fees and granted certain other relief, and
the defendant filed an amended appeal. Reversed in
part; further proceedings.
Campbell D. Barrett, with whom were Johanna S.
Katz, and, on the brief, Jon T. Kukucka, for the appel-
lant (defendant).
Charles D. Ray, with whom, on the brief, was Angela
M. Healey, for the appellee (plaintiff).
Opinion
KELLER, J. The defendant, Stanislav Leonov, appeals
from the judgment of the trial court, dissolving his mar-
riage to the plaintiff, Alina Leonova, which included a
finding of contempt against the defendant, and from
two postjudgment orders awarding the plaintiff attor-
ney’s fees incurred in connection with postdissolution
proceedings and her defense of this appeal. On appeal,
the defendant claims that the trial court (1) abused its
discretion by improperly basing supplemental alimony
awarded to the plaintiff on the defendant’s gross, rather
than net, bonus income, (2) acted in excess of its statu-
tory authority when it ordered the parties to establish
and to contribute to education savings plans established
pursuant to 26 U.S.C. § 529 (§ 529 plans) for the benefit
of each of the two minor children, (3) acted in excess
of its statutory authority when it found the defendant
in contempt for an alleged violation of the automatic
orders set forth in Practice Book § 25-5, despite the
fact that there was no contempt motion pending, (4)
abused its discretion when it found the defendant in
contempt for two violations of the automatic orders
where the defendant’s financial expenditures fell within
the ‘‘usual course of business’’ exception to the rule, (5)
abused its discretion by failing to attribute an earning
capacity to the plaintiff in determining alimony and
child support, and (6) in violation of the directive of
General Statutes § 46b-62 (a) and relevant decisional
law, improperly awarded the plaintiff attorney’s fees
for representation during the marital dissolution pro-
ceedings, postjudgment matters and this appeal.1 We
agree with the defendant’s third claim only. Accord-
ingly, we reverse the judgment of dissolution only with
respect to one of the contempt findings, and remand
the case to the trial court with direction to vacate its
finding that the defendant was in contempt with respect
to one of the violations of the automatic orders alleged
by the plaintiff. We affirm the judgment and postjudg-
ment orders of the court in all other respects.
The plaintiff brought the underlying dissolution
action against the defendant in 2017. A contested trial
took place in December, 2019, during which both parties
were represented by counsel. The following undisputed
facts, or facts as found by the trial court, and additional
procedural history are relevant to this appeal. The plain-
tiff and the defendant were married in New York, New
York on March 10, 2006. Both parties emigrated as chil-
dren from regions of the former Soviet Union, the defen-
dant from Ukraine and the plaintiff from Azerbaijan.
Each is a naturalized citizen and is fluent in English.
There are two minor children issue of the marriage
who, at the time of the judgment of dissolution, were
ages four and three. From the time that the parties
separated in March, 2017, until the time of the dissolu-
tion, the plaintiff resided in a condominium owned by
the parties at 25 West Elm Street in Greenwich (Green-
wich condominium). The children resided primarily
with the plaintiff.2 The defendant resided in an apart-
ment in White Plains, New York.
The defendant, at the time of the dissolution, was
thirty-nine years old and in good health. He has a degree
in computer science and has worked steadily through-
out the marriage. For the six years of marriage preced-
ing the divorce, he had been employed by Viking Global
Investors in Greenwich as a team leader in quantitative
development. He earned an annual base salary of
$400,000 and also regularly received an additional
annual discretionary bonus. In 2017, he received a gross
bonus of $508,500 and was expecting to receive a gross
bonus of $550,000 for 2018.3
The plaintiff, at the time of the dissolution, was thirty-
five years old and in general good health, but has vision
problems and a serious hearing deficit, which would
require further surgery to partially restore her hearing.
She had earned a master’s degree in business adminis-
tration from Fordham University while working full-
time earlier in the marriage, but had not been fully
employed outside of the home since 2012. She consid-
ered herself a full-time homemaker, although she spo-
radically earned money during the marriage. In one
instance she performed some part-time bookkeeping,
earning between $4000 and $5000, and in another
instance she earned several hundred dollars related to
her photography hobby.
The principal assets of the parties included two prop-
erties in Connecticut and a cooperative apartment in
Brooklyn, New York (Brooklyn co-op). The parties stip-
ulated that one of the Connecticut properties, the jointly
owned Greenwich condominium occupied by the plain-
tiff, had a fair market value of $580,000. There was a
mortgage on that property in the amount of approxi-
mately $416,000. The parties also owned a larger home
at 215 Riverside Avenue in Greenwich (Riverside
house), which they had purchased during the marriage
and renovated. On each of their financial affidavits, the
parties indicated that the Riverside house had a fair
market value of $2.5 million with an outstanding mort-
gage of approximately $1,467,000. At trial, the defendant
complained that the plaintiff spent far too much money
on the renovations.4 The plaintiff testified that if she
had known that the family was not going to occupy the
Riverside house when the renovations were complete,
she never would have spent so much.5 To complete the
renovations, the plaintiff had borrowed $50,000 from
her mother, and both parties acknowledged that the
$60,000 that the plaintiff’s mother had gifted to the
parties’ children, $30,000 to each child at the time of
the child’s birth, also was spent for that purpose. The
parties also jointly owned the Brooklyn co-op, which
was under a contract for sale for $290,000. There was
approximately $195,000 of equity in that property.
Other marital assets included several retirement
accounts, three belonging to the defendant and one
belonging to the plaintiff. The unspent balance of the
defendant’s 2017 net bonus, approximately $63,000, was
being held in escrow in one of the checking accounts
pursuant to a court order.6
The plaintiff also held an interest in an apartment
and an apple orchard in Azerbaijan, which she esti-
mated had a combined value of $50,200. The defendant
claimed no interest in either. Both parties, as of the
time of the dissolution, had accumulated a substantial
amount of credit card debt, as well as debts to family
and friends.
The court, in its factual conclusions, was more critical
of the defendant than of the plaintiff, noting, as follows:
‘‘During the pendency of the case, [the defendant]
received an annual bonus for 2017, most of which he
spent, much of it on credit card debt. As a result, the
court entered pendente lite orders, among other things,
freezing the unspent balance as well as other orders.
Moreover, since the separation, his spending has been
uncharacteristically lavish for, among other things,
meals and travel. . . . The [plaintiff] told the court that
the pattern throughout the marriage was to ‘save and
invest,’ adding that ‘this is not my husband.’ The [defen-
dant] did not dispute the marital saving and spending
patterns. By way of contrast, in 2018 he only paid the
[plaintiff] $12,500 for support for the first half of the
year and nothing since. However, since the filing of the
complaint, among other things, without consulting the
[plaintiff] or seeking her permission, he made a large,
and losing, investment in some alternative currencies
(so-called ‘cryptocurrencies’), like Bitcoin. In January,
2018, he invested $39,000 in these currencies and later
sold them for a $22,000 loss. While the [defendant] has
maintained an investment account, it was clear from his
testimony that he had never made such an investment
before. More recently, again without permission, he
removed $10,000 from [a] checking account to rent a
ski lodge for the upcoming season. . . .
‘‘[The defendant] testified that the parties had ‘grown
apart’ and that for a year there had been ‘no emotional
or physical relationship or intimacy.’ The [defendant]
struck the court as somewhat insincere, the evidence
supporting a finding that for years he has been carrying
on a long time extramarital affair with a person he met
on a ski trip. The [plaintiff] told the court that she was
surprised to first find out about the [defendant’s] affair
when he posted a picture of the girlfriend on social
media and it was brought to her attention by a friend.
[The plaintiff] believed that the marriage could be
saved. Adding to [the plaintiff’s] consternation was the
fact that in April, 2016, [the defendant gave the plaintiff]
a gift of an expensive diamond ring, which he claimed
cost $50,000. She values the ring at $25,000.’’
In making its findings, the court noted that it had
considered all relevant statutory provisions affecting
its financial orders.7 It found that both parties had con-
tributed to the breakdown of the marriage ‘‘in some
fashion,’’ but that the defendant’s actions were the pri-
mary cause.
With respect to its January 10, 2019 orders, which
were incident to the judgment of dissolution and are
the subject of this appeal, the court indicated that it
had reviewed the affidavit of attorney’s fees submitted
by the plaintiff’s attorney dated December 20, 2018, and
that the fees incurred by the plaintiff were fair and
reasonable, and that ‘‘to require the [plaintiff], who has
at present a minimal earning capacity and the responsi-
bility for the two minor children, to pay these fees from
her portion of the martial assets awarded to her . . .
would undermine the purposes of the same and that it
would be fair and equitable for the [defendant] to pay
a portion of the same.’’ (Citation omitted.) The court
ordered the defendant to pay $40,000 to the plaintiff’s
attorney for legal fees incurred by the plaintiff within
thirty days of the date of the judgment. The plaintiff
was to pay the balance of her legal fees, and the defen-
dant was responsible for his own.
The court ordered that, commencing February 1,
2019, the defendant was to pay to the plaintiff the
monthly sum of $6200 for periodic alimony until the
death of either party, the remarriage of the plaintiff,
her cohabitation or living together as defined by General
Statutes § 46b-86 (b), or until June 30, 2029, whichever
shall sooner occur. In addition to the foregoing, com-
mencing with the bonus that the defendant was to
receive for the year 2019 and succeeding years, until
termination of alimony for whatever reason, the court
ordered the defendant to pay to the plaintiff, as addi-
tional periodic alimony, a sum equal to 20 percent of
his gross bonus award up to and including $250,000,
and, thereafter, a sum equal to 10 percent of his gross
bonus award up to and including a ceiling of $750,000
(supplemental alimony award). The defendant was
required to make the supplemental alimony award pay-
ment within one week of receipt of the bonus and to
include with the payment a copy of the pay slip outlining
the gross amount and any deductions therefrom. Except
for the circumstances warranting termination of ali-
mony stated in the order, the court made the term
of the periodic alimony otherwise nonmodifiable, and
further ordered that the amount of periodic alimony
would be nonmodifiable by the defendant where the
sole basis for modification is annual gross earnings of
the plaintiff of $35,000 or less.8
In light of testimony that gifts of $30,000 to each of
the children from the plaintiff’s mother had been used
to pay for some of the costs of renovating the Riverside
house, each of the parties was ordered to jointly contrib-
ute $30,000 to a separate § 529 plan for each minor
child, to be established by the plaintiff for their benefit.
Specifically, the court ordered these funds to be
deducted from each party’s share of the net proceeds
from the defendant’s 2018 bonus. To the extent that
the court’s order also suggests that these funds be set
aside from the proceeds of the sale of the Riverside
house, we infer that the court intended to derive the
$30,000 contributions into the new § 529 plans by either
of these two means. To wit, either from the Riverside
house net sale proceeds or from the defendant’s 2018
net bonus proceeds. Neither party claims that the
amount of the contribution that the court required from
each of them was more than $30,000. The plaintiff was
ordered to serve as the fiduciary for both accounts.
Until said accounts are established, the sum of $60,000
from the net proceeds of the 2018 bonus was to be paid
to and held in escrow in the plaintiff’s attorney’s trustee
account. Any § 529 plans previously established by the
defendant were ordered to remain in full force and
effect.
The court also addressed a claim made by the plaintiff
during the trial that she be reimbursed for losses
resulting from the defendant’s breach of the automatic
orders based on his cryptocurrency investment and his
rental of the ski lodge. The plaintiff previously had filed
a motion for contempt against the defendant for his
violation of the automatic orders based on his crypto-
currency investment, but she did not file a motion for
contempt alleging that his rental of the ski lodge was
also such a violation. The court ordered the defendant
to pay to the plaintiff $16,000 from his share of the net
proceeds of his 2018 bonus to offset his violation of
these two automatic orders.
Although, in the present appeal, the defendant does
not challenge the court’s distribution of marital assets,
we will review the court’s orders in this regard because
they are relevant to our analysis of whether certain
other financial orders that are the subject of this appeal
constitute an abuse of the court’s discretion.
The plaintiff was allowed to retain her interest in the
assets located in Azerbaijan.
The net proceeds of the sale of the Brooklyn co-op
after payment of any mortgage, taxes and liens, as well
as closing costs, were ordered to be divided equally by
the parties.
The Greenwich condominium, in which the plaintiff
and the children reside, was awarded to her, subject
to any existing indebtedness after the defendant
brought the mortgage, the real estate taxes and the
homeowners insurance current from his share of the
division of his 2018 bonus. The defendant was ordered
to quitclaim his interest in this property to the plaintiff
within thirty days of the date of the dissolution and to
make these payments current within one month of the
date of the dissolution. After the defendant quitclaimed
his interest in the condominium to the plaintiff, she was
ordered to be solely responsible for the payment of the
balance of the mortgage, the insurance and the real
estate taxes and to indemnify and to hold the defendant
harmless therefrom. She further was ordered to use her
best efforts to remove the defendant’s name from the
existing mortgage within five years.
The court ordered the Riverside house to be listed
for sale, with the net proceeds of the sale to be divided
equally between the parties. The plaintiff was ordered
to reimburse the defendant from her share of the pro-
ceeds for carrying costs on the home that he was
ordered to pay from January 1, 2019, until it is sold.
The defendant also was ordered to immediately bring
the mortgage, the real estate taxes and the homeowners
insurance current from his share of the division of his
2018 bonus as of the date of the judgment.
The balances in three checking accounts were
ordered to be divided equally. These accounts included
a Citibank account containing the $63,000 escrowed
balance of the defendant’s 2017 bonus income, a Chase
Bank account containing $11,000 and an HSBC check-
ing account.9
The parties were allowed to retain the balances in
their individual 401 (k) plans and retirement accounts,
except that one Fidelity 401 (k) plan, held by the defen-
dant and worth $423,184, was ordered be divided, 60
percent to the plaintiff and 40 percent to the defendant
by means of a qualified domestic relations order
(QDRO). The plaintiff’s Fidelity 401 (k) plan was worth
$210,000. The defendant was allowed to retain in its
entirety a Viking 401 (k) plan worth $167,139 and a
Fidelity individual retirement account, worth $5779.
The parties each were ordered responsible for the
cost of their leased automobiles and for any debt on
their respective financial affidavits not addressed in the
court’s memorandum of decision.10 Household furnish-
ings, except for the children’s furniture, which was to
remain in the plaintiff’s possession, were ordered to be
divided equally. Each party was allowed to retain his
or her clothing, personal effects, E-Trade accounts,11
and jewelry, which permitted the plaintiff to keep the
diamond ring she claimed was appraised at $25,000.
The defendant was allowed to retain his Viking Hedge
Fund account, worth approximately $7200.
After the judgment was rendered, the defendant filed
this appeal on January 30, 2019. On February 1, 2019,
the plaintiff filed two motions for counsel fees, in which
she sought legal fees for representation relevant to cer-
tain postdissolution motions and to defend this appeal.
On April 8, 2019, after an evidentiary hearing, the court,
Hartley Moore, J., granted both motions after finding
that the defendant ‘‘was able to obtain significant funds
for a retainer for new counsel to represent him postjudg-
ment,’’ and that he had ‘‘rented an expensive ski house
for the season and [had] started paying the alimony and
child support order in February, 2019. The plaintiff has
nominal income from part-time employment and has
the primary responsibility of caring for two very young
children. Moreover, the plaintiff was awarded counsel
fees in the underlying dissolution of marriage.’’12 On
April 24, 2019, the defendant amended his appeal to
seek reversal of these April 8, 2019 orders. Additional
facts and procedural history will be set forth as nec-
essary.
I
SUPPLEMENTAL ALIMONY AWARD
The defendant’s first claim is that the court abused
its discretion by improperly basing the supplemental
alimony awarded to the plaintiff on the defendant’s
gross, rather than net, bonus income. We disagree.
The applicable standard of review of this financial
order is abuse of discretion. ‘‘In determining whether
a trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action.’’ (Internal
quotation marks omitted.) Medvey v. Medvey, 98 Conn.
App. 278, 281, 908 A.2d 1119 (2006); see id. (abuse of
discretion standard applied to claim court improperly
relied on gross, rather than net, income of husband in
modifying alimony).
As indicated previously in this opinion, the court
entered the following order of supplemental alimony:
‘‘[C]ommencing with the bonus [the defendant] receives
for the year 2019 and succeeding years, until termina-
tion of alimony for whatever reason, he shall pay to
the [plaintiff, as additional] periodic alimony, a sum
equal to 20 percent of his gross bonus award up to and
including $250,000; and thereafter a sum equal to 10
percent of his gross bonus award up to and including
a ceiling of $750,000.13 Said payment shall be made
within one week of receipt of the bonus and shall be
accompanied by a copy of the pay slip outlining the
gross amount and any deductions therefrom.’’ (Foot-
note added.)
The court had before it the financial affidavits and
worksheets of both parties filed pursuant to the Child
Support and Arrearage Guidelines (child support guide-
lines), which had been filed immediately prior to trial
as required by Practice Book § 25-30 (e). The defendant,
however, did not disclose his bonus income, gross or
net, in either this financial affidavit or in his child sup-
port guidelines worksheet. He only indicated his weekly
income from his base salary. He did, however, testify
that, before the trial concluded, he was anticipating
receiving from his employer a gross bonus of $550,000
for the year 2018. He acknowledged that his income
from salary and bonus for the year 2016, the last year
he had filed a tax return, was $813,644. The defendant
further stated that he had been on a trajectory where
his bonus income exceeded his annual base salary.
The court had as evidence the parties’ joint tax
returns for the years 2014 through 2016 and a list of
the expenditures the defendant had made from the net
proceeds of his 2017 bonus. There was a balance of
$63,000 remaining from the 2017 bonus. Also in evi-
dence was the defendant’s 2017 bonus payroll state-
ment, including deductions, which showed a gross
bonus of $508,500, or $9778.85 weekly, as well as finan-
cial affidavits, previously filed by the defendant on Janu-
ary 25 and April 6, 2018, which indicated a net weekly
income, including bonus payments, of nearly $10,000 a
week after his stated deductions, some of which are
not legally mandated, such as his contributions into his
retirement accounts.
Although our case law consistently affirms the basic
tenet that support and alimony orders must be based
on net income, ‘‘the proper application of this principle
is context specific. . . . [W]e differentiate between an
order that is a function of gross income and one that
is based on gross income. . . . [T]he term based as
used in this context connotes an order that only takes
into consideration the parties’ gross income and not
the parties’ net income. Consequently, an order that
takes cognizance of the parties’ disposable incomes
may be proper even if it is expressed as a function of
the parties’ gross earnings.’’ (Citation omitted; internal
quotation marks omitted.) Procaccini v. Procaccini,
157 Conn. App. 804, 808, 118 A.3d 112 (2015).
This court previously has overlooked the failure of
the trial court to make a finding as to a party’s net
income, as in the present case, with respect to the
defendant’s net bonus income. We have concluded that
such an omission does not compel the conclusion that
the court’s order was improperly based on gross income
if the record indicates that the court considered evi-
dence from which it could determine a party’s net
income, and it did not state that it had relied on the
party’s gross earnings to form the basis of its order.
See Hughes v. Hughes, 95 Conn. App. 200, 207, 895 A.2d
274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006).
In Kelman v. Kelman, 86 Conn. App. 120, 123, 860
A.2d 292 (2004), cert. denied, 273 Conn. 911, 870 A.2d
1079 (2005), this court rejected a similar claim on the
ground that, although the trial court, in its decision,
made reference to the parties’ gross incomes, it did
not expressly state that it was relying solely on gross
earnings in framing its order. The trial court in the
present case, like the trial court in Kelman, stated that
it took into account all of the relevant statutes, the
testimony of the parties, and the evidence presented,
which included evidence of the defendant’s actual net
bonus income, including a payroll statement from 2017
reflecting his most recent annual net bonus payment.
The court found that based on the parties’ financial
affidavits, the defendant’s net available income from
his base pay was $4462 per week, or $19,187 per month,
and the plaintiff’s net available income was $0 per week.
The court relied on these net findings as the basis for
its monthly child support and alimony awards. The
court also based its supplemental child support order
on a percentage of the defendant’s net annual bonus,
after allowing for the mandatory deductions listed in the
child support guidelines regulations. It further indicated
that it was aware that ‘‘alimony and child support orders
must be based upon the net income of the parties,’’ and
did not distinguish between periodic and supplemental
orders in making this statement.
It is apparent that the court intended its supplemental
alimony order to be a function of the gross bonus
income, which is a convenient and economical method
of calculation.14 This order is distinguishable from the
court basing its order on the bonus gross income, espe-
cially in light of the fact that the court did not use gross
income to calculate the periodic alimony order or the
monthly and supplemental child support orders.15
Because the court had ample evidence at its disposal
to adequately inform it as to the defendant’s financial
status with respect to his net bonus income, we con-
clude that the court did not abuse its discretion in
making its supplemental alimony order a function of
the defendant’s future gross bonus income.
II
ORDER TO ESTABLISH § 529 PLANS
The defendant’s second claim is that the court acted
in excess of its statutory authority by ordering the par-
ties to establish and to contribute to an education sav-
ings plan established pursuant to 26 U.S.C. § 529, for
the benefit of each of the two minor children.16 The
defendant argues that the court had no authority to
issue such an order because General Statutes § 46b-81,
which pertains to property divisions, does not afford
the court the right to make future investment decisions
for the parties; rather, its authority is limited to the
ability to distribute the marital property from one
spouse to the other or to order its sale.
As we explained previously in this opinion, prior to
the court-ordered equal distribution of the net proceeds
of the defendant’s 2018 bonus, each party was ordered
to contribute the sum of $30,000 to a separate § 529
plan for each child, to be established by the plaintiff.
We disagree with this claim and conclude that the court
imposed this order to secure future educational support
to the children, which is within its authority in a dissolu-
tion proceeding, pursuant to General Statutes § 46b-56.
The following additional facts apply to this claim.
During the trial, the court heard testimony from both
the plaintiff and the defendant as to their expenditure
of $30,000 in gifts that the plaintiff’s mother had donated
to each of the minor children at the time of their births.
The plaintiff testified that, in addition to loans that she
had received from her mother, she had used the $60,000
gift amount to pay for part of the renovation work
to the Riverside house. She claimed that she and the
defendant had agreed that this amount would eventually
be repaid to the children. In closing argument, her coun-
sel requested that the court restore this money to the
children. The defendant testified that the plaintiff told
him that these gifts from his mother-in-law were
intended for the children and had been used instead
for the renovations, although he claimed to have no
proof of the gifts or the fact that they were used for the
renovations. The court credited the plaintiff’s testimony
and, in its financial orders, ordered each of the parties
to place $30,000, to be deducted from each party’s share
of one of two distributed marital assets, into two § 529
plans,17 one for each of the children, with the plaintiff
to serve as trustee of those plans.
The parties disagree on the applicable standard of
review. The plaintiff argues that the standard of review
should be abuse of discretion, but the defendant cor-
rectly argues that ‘‘the court’s authority to transfer prop-
erty appurtenant to a dissolution proceeding requires
an interpretation of the relevant statutes. Statutory con-
struction, in turn, presents a question of law over which
our review is plenary.’’ (Internal quotation marks omit-
ted.) Rosato v. Rosato, 77 Conn. App. 9, 18, 822 A.2d
974 (2003).
We further note that, ‘‘[a]lthough created by statute,
a dissolution action is essentially equitable in nature.
. . . The power to act equitably is the keystone to the
court’s ability to fashion relief in the infinite variety of
circumstances [that] arise out of the dissolution of a
marriage.’’ (Internal quotation marks omitted.) O’Brien
v. O’Brien, 326 Conn. 81, 103, 161 A.3d 1236 (2017).
Section 46b-81 (a) provides in relevant part: ‘‘At the
time of entering a decree annulling or dissolving a mar-
riage . . . the Superior Court may assign to either
spouse all or any part of the estate of the other spouse.
The court may pass title to real property to either party
or to a third person or may order the sale of such real
property, without any act by either spouse, when in the
judgment of the court it is the proper mode to carry
the decree into effect. . . .’’ We have held that ‘‘[i]t is
plain from [this] statute that while the court has the
authority to pass title of real property from one spouse
to another or to a third party at the time of marital
dissolution, the court’s authority to transfer any part
of each spouse’s estate is limited to transfers between
spouses.’’ Rosato v. Rosato, supra, 77 Conn. App. 19.
The defendant also argues that, to the extent that
the court intended its order to constitute a form of
postsecondary educational support, the court’s order
violates General Statutes § 46b-56c (c)18 because the
court expressly stated that it was reserving jurisdiction
to enter an educational support order at a later date
for the benefit of the two children and, therefore, never
undertook an analysis of the statutory factors in § 46b-
56c (c). Finally, the defendant claims that, to the extent
that the court intended its order to constitute postma-
jority child support, its award did not comply with Gen-
eral Statutes § 46b-66.19
The plaintiff counters that the defendant’s arguments
ignore the totality of the factual circumstances sur-
rounding the order creating the two new § 529 plans
and that, given its broad discretionary authority, the
court properly restored and preserved money donated
to the children that had been appropriated by the parties
for another purpose during the marriage.20 In doing so,
the court was aware from the evidence that the parties
previously had created several § 529 plans for the bene-
fit of their children. We agree with the plaintiff that the
court did not exceed its authority under § 46b-81. We
conclude that § 46b-81 is inapplicable, and that pursuant
to General Statutes §§ 46b-56 and 46b-84, the court is
authorized to provide security for the enforcement of
a future educational support order when it retains juris-
diction to make such an order providing the children
with an educational expectancy.21
We do not agree with the defendant that the court’s
order that each of the parties deposit $30,000 into two
new § 529 plans was an improper order under § 46b-81
because it required the parties to distribute joint marital
funds to someone other than the other spouse. Rather,
allowing every reasonable presumption in favor of the
correctness of the court’s action, we find that the court,
in ordering the creation of two new § 529 plans,
although it did not explicitly state its intention, was
doing so in order to secure a potential postmajority
educational support order.22
Although the court did not enter any postmajority
educational order, it did reserve jurisdiction to enter
one in the future. See General Statutes § 46b-56c (c).
When a court retains jurisdiction over educational sup-
port, as the court did here, it has the discretion to issue
a financial order that would secure any educational
support order that might be entered in the future.23 See
Lederle v. Spivey, 113 Conn. App. 177, 194, 965 A.2d
621 (court that retained jurisdiction over educational
support order did not exceed its jurisdiction by ordering
maintenance of life insurance to protect minor child if
either parent died prior to child completing his postsec-
ondary education), cert. denied, 291 Conn. 916, 970 A.2d
728 (2009).
In this case, the court found that ‘‘it is more likely
than not that the parents would have provided support
to each of the children for higher education or private
occupational school if the family were intact,’’ and ‘‘in
their proposed orders, each parent has requested that
the court retain jurisdiction to enter educational sup-
port orders in the future.’’ The court further indicated
that its findings brought the issue within the ambit of
§ 46b-56c. Because the statutory scheme anticipates
that a dissolution may occur in advance of the time
postsecondary educational decisions appropriately can
be made, it provides a mechanism for the court to retain
jurisdiction for the purpose of ordering educational sup-
port for adult children. In its orders, the court reserved
jurisdiction to enter an educational support order pur-
suant to § 46b-56c at an appropriate time.24 We note,
too, that the order in the court’s memorandum of deci-
sion that establishes the two § 529 plans follows imme-
diately after the order in which the court reserves juris-
diction to enter an educational support order in the
future.
Our analysis is guided by this court’s decision in
Sander v. Sander, 96 Conn. App. 102, 899 A.2d 670(2006). The trial court in Sander ordered the sale of
the parties’ Vermont vacation home and that $75,000
of the proceeds of the sale be held in trust for the
education of the parties’ daughter pursuant to § 46b-
56c. Id., 113. On appeal, the plaintiff challenged the
propriety of that order. Id., 115. In upholding the chal-
lenged order, this court, in Sander, relied on the educa-
tional support statute, § 46b-56c (h), for the expressed
proposition that ‘‘an educational support order may be
. . . enforced in the same manner as is provided by law
for any support order.’’ Id., 120. Thus, it is appropriate
to turn to the statutes governing other support orders
for the means of enforcing an educational support
order. Section 46b-84 (f) concerns a parent’s obligation
to provide maintenance for a minor child. It provides
in relevant part that ‘‘[t]he court shall make and enforce
the decree for the maintenance of the child as it consid-
ers just, and may direct security to be given therefor
. . . .’’ General Statutes § 46b-84 (f). The court in
Sander explained that, ‘‘[as] a court may enforce these
support orders by requiring that security be given, a
court similarly may enforce an educational support
order by requiring that security be given.’’ Sander v.
Sander, supra, 120.
‘‘In making its [financial] orders . . . a trial court is
afforded a wide latitude of discretion.’’ Pacchiana v.
McAree, 94 Conn. App. 61, 69, 891 A.2d 86, cert. denied,
278 Conn. 922, 901 A.2d 1221 (2006). The creation of a
§ 529 plan to fund an educational support order fits
well within that latitude of discretion. In Louney v.
Louney, 13 Conn. App. 270, 274–75, 535 A.2d 1318(1988), this court upheld an order in a dissolution action
requiring that funds held in joint accounts be used for
the designated purpose of the education of the parties’
minor children. Here, the court similarly established
§ 529 plans to hold the parties’ money for the express
purpose of their children’s postsecondary educations
pursuant to § 46b-56c. We therefore conclude that the
court in this case properly exercised its authority by
requiring the parties to establish two § 529 plans to
secure any future educational support order that may
be entered for the benefit of their children.
We also do not agree with the defendant that the
court entered an illegal, postmajority support order.
The court did not order any further payments into the
plans or that investments into the plans continue
beyond the date the children turned eighteen. We do
not read into the order language that which is not there
and that which would contravene statutory and case
law. See Gallo v. Gallo, 184 Conn. 36, 46, 440 A.2d
782 (1981) (educational fund order which contained
no language continuing payments beyond age eighteen
would not be read as contravening statutory and case
law). Nonetheless, the court did not abuse its discretion
by issuing a financial order that would secure any edu-
cational support order that might be entered in the
future, at about the time the children become eighteen
and are making decisions about their educational
futures. As a matter of judicial economy, it would not
be practical to require the parties to maintain § 529
plans for the benefit of the minor children, terminate
them when the children become eighteen and reinsti-
tute them some months later when the adult children
matriculate at a postsecondary educational institution
as the beneficiaries of educational support orders. See
Crews v. Crews, 107 Conn. App. 279, 304, 945 A.2d 502(2008), aff’d on other grounds, 295 Conn. 153, 989 A.2d
1060 (2010).
We also do not agree with the defendant’s argument
that the order is squarely in conflict with this court’s
decision in Weinstein v. Weinstein, 87 Conn. App. 699,
867 A.2d 111 (2005), rev’d on other grounds, 280 Conn.
764, 911 A.2d 1077 (2007). In Weinstein, this court found
error with respect to a trial court’s ‘‘decision to impute
a higher level of passive income on the defendant’s
investments simply because another investment vehicle
may have provided a higher yield.’’ Id., 706–707. This
court stated, ‘‘[r]ather, we hold that for a court to impute
additional investment income capacity to a party in
formulating its support orders, the court must find that
the party has unreasonably depressed investment
income in order to evade a support obligation or that
the party’s investment strategy is economically unrea-
sonable.’’ Id., 707. The issue in Weinstein concerned
assessing proper passive earning capacity, and the case
did not involve a claim that the court improperly
ordered the defendant to make any particular
investment.
The applicability of Weinstein to the circumstances
of this case is not apparent. The basis for the court’s
order in the present case was not any disagreement
with the manner in which the parties had chosen to
invest the children’s gifts—they both acknowledged
that they had spent the $60,000 rather than investing it
in a manner that would have directly benefitted the
children, such as by placing the money in the § 529
plans already in existence. Both parties also acknowl-
edged that they owed a debt to their children because
they had spent their grandmother’s gifts for expensive
renovations to the Riverside house.25 The money gifted
to the children was not property acquired by either of
the parties during the course of the marriage as a result
of their individual efforts, and the plaintiff requested
an order from the court restoring the $60,000 to the
children if the Greenwich house was sold. Although
§ 529 plans established and funded by the parties them-
selves might qualify as marital property under the broad
definition given to that term by our legislature in § 46b-
81, in that such accounts are existing property at the
time of the divorce proceedings; see Greenan v.
Greenan, supra, 150 Conn. App. 311; by ordering the
establishment of two new § 529 plans, the court was
not distributing marital property from one spouse to
the other, but securing funds for the children’s future
educational needs.
The court’s order to establish the two § 529 plans
to secure any future educational support order was
eminently fair, as both parties were ordered to contrib-
ute equally to their creation after they had used the
children’s gift moneys to renovate a home that the chil-
dren will never occupy. We conclude that the court
properly exercised its authority to secure contemplated
future educational support orders by requiring each
party to restore one half of the children’s gift money
and to protect it for their future use.
III
VIOLATIONS OF PRACTICE BOOK § 25-5
AUTOMATIC ORDERS
We address the defendant’s third and fourth claims
jointly in this part of the opinion, as both claims pertain
to alleged violations of the automatic order provisions
set forth in Practice Book § 25-5 (b).26 In the defendant’s
third claim, he contends that the court improperly found
the defendant in contempt for one of the alleged viola-
tions of the automatic orders set forth in Practice Book
§ 25-5, his expenditure of $10,000 to rent a ski lodge,
because there was no contempt motion pending alleging
such a violation; and, in his fourth claim, the defendant
contends that the court abused its discretion by finding
the defendant in contempt for two violations of the
automatic orders, by renting the ski lodge and by
investing $39,000 in cryptocurrency, despite the fact
that both of these financial expenditures were within
the ‘‘usual course of business’’ exception in the rule.
See Practice Book § 25-5 (b) (1). For the reasons that
follow, we agree with the defendant’s third claim.
The following additional facts and procedural history
are relevant to these claims. At trial, it was undisputed
that, after the divorce action had commenced, the
defendant used two new accounts to buy cryptocur-
rency. The defendant testified that he lost $22,000 as a
result of this investment. On May 4, 2018, the plaintiff
filed a motion for contempt, alleging that the defendant
had wilfully violated the automatic orders by purchas-
ing $39,004 in cryptocurrency27 without the permission
of the court or the consent of the plaintiff in writing. She
further alleged that the purchase of the cryptocurrency
was not a customary or ordinary investment made by
either party prior to the filing of the divorce action.
This pendente lite motion, like many other pendente
lite motions filed in this case, was never heard,28 but,
during the dissolution trial, the plaintiff pursued it, and
both parties offered evidence as to the timing, purpose
and nature of this cryptocurrency purchase. During her
closing argument, counsel for the plaintiff indicated that
she wished to have this motion for contempt considered
and granted.
The plaintiff never filed a motion for contempt that
pertained to the defendant’s rental of the ski lodge
in September, 2018, but the plaintiff did question the
defendant about his $10,000 expenditure for the lodge,
which he admitted he used not only for his children,
but for other family members, his girlfriend, and her
children. This expenditure, made with funds from one
of the defendant’s checking accounts, occurred just
after the parties had entered into a stipulation that the
court had accepted and had made an order of the court.
That stipulation provided that the defendant could use
a portion of the escrowed net proceeds of his 2017
bonus to pay the mortgage on the Riverside house and
the costs of the children’s preschool and extended day
program for 2018 and 2019. He indicated that it would
not have been ‘‘customary’’ to discuss the rental of the
ski lodge with the plaintiff prior to the expenditure.
The court stated in its memorandum of decision that
the plaintiff also had requested reimbursement for this
expenditure as a violation of the automatic orders.
In addressing the plaintiff’s two claimed violations
of the automatic orders, the court held the defendant
in contempt for both the ski lodge rental and the crypto-
currency purchase. After stating that there must be
clear and convincing evidence of a wilful failure to
comply with a clear and unequivocal order of the court
in order to find a party in contempt, the court found
that the automatic orders set forth in Practice Book
§ 25-5 are clear and unambiguous, that the evidence
supported a finding that the defendant violated the auto-
matic orders in one or more instances, to wit, the crypto-
currency investment of $39,000 and the rental of the
ski lodge for $10,000, and that these expenditures were
not in the ordinary course and were made without the
written permission of the plaintiff. The court found
the defendant’s violation of the automatic orders to be
‘‘wilful and without good cause,’’ found him in con-
tempt, and ruled that it was ‘‘equitable and appropriate
to make [the plaintiff] whole in some manner for said
breaches.’’ The court ordered that the net proceeds of
the defendant’s 2018 bonus, which was to be received
at or about the time of trial, was to be divided, with 50
percent given to the defendant and 50 percent given to
the plaintiff, but that a deduction of $16,000 from the
defendant’s 50 percent share was to be paid to the
plaintiff to offset his violation of the automatic orders.
We first address the plaintiff’s argument that the issue
of whether the court erred in finding the defendant in
contempt for the ski lodge expenditure is moot because
the defendant has not challenged the other independent
ground for the court’s contempt ruling, i.e., his crypto-
currency investments. We disagree.
First, although precedent establishes that an appeal
or claim of error can be rendered moot if the appellant
neglects to challenge every independent ground on
which the challenged ruling may be sustained, the
defendant here has challenged both findings on which
the finding of contempt was predicated. Moreover, in
Keller v. Keller, 158 Conn. App. 538, 541–44, 119 A.3d
1213 (2015), appeal dismissed, 323 Conn. 398, 147 A.3d
146 (2016), this court counseled that the defendant’s
claim that the trial court erred in finding him in con-
tempt would not be moot even if the defendant had
not challenged both of the findings of contumacious
conduct. In Keller, the plaintiff, in an ongoing dissolu-
tion action, appealed from a judgment holding her in
contempt on two grounds. Id., 542. On appeal, the plain-
tiff challenged only one of the grounds for the contempt
finding, and the defendant argued that the Appellate
Court could not afford the plaintiff any practical relief
because she had neglected to challenge the other
ground. Id., 541. This court rejected the defendant’s
mootness argument, concluding that we make every
presumption favoring our exercise of jurisdiction and
ruling that the appeal was not moot because practical
relief could be afforded to the plaintiff by reversing the
single finding of contempt, even though there was no
sanction, monetary or otherwise, imposed as a result
of the contempt judgment. Id., 543–44. This court noted
that, if the single finding of contempt was left undis-
turbed, such a finding of contumacious conduct could
hurt the contemnor in the future because ‘‘a finding of
contempt may well affect a later court’s determination
of the penalty to be imposed after a future finding of
contempt.’’ (Internal quotation marks omitted.) Id., 543.
The present case and Keller stand on the exact same
procedural footing—in both cases, the trial court made
two separate findings of contempt. Id., 543 and n.7.
Even a bare finding of contempt unaccompanied by
any sanction can have adverse future collateral conse-
quences for the contemnor. Accordingly, we reject the
mootness argument.
We next address the merits of the defendant’s claim
that the court erred in finding him in contempt for
violating the automatic orders by renting the ski lodge
because there was no motion for contempt pending on
that issue. Although we agree with the defendant that
the court improperly held him in contempt with respect
to the seasonal ski lodge rental because there was no
motion for contempt pending on that issue, we con-
clude, nevertheless, that the court properly determined
that the rental was not in the usual course of business
and that, therefore, it had the authority to fashion a
remedial order to offset the defendant’s violation of the
automatic orders by leasing the ski lodge, despite the
improper contempt finding.
‘‘Contempts of court may . . . be classified as either
direct or indirect, the test being whether the contempt
is offered within or outside the presence of the court.’’
Brody v. Brody, 315 Conn. 300, 317, 105 A.3d 887 (2015).
This is a case of civil contempt. A refusal to comply
with an automatic order in Practice Book § 25-5 is an
indirect contempt of court because it occurs outside
the presence of the trial court. In determining whether
a contempt of court is civil or criminal, we look to the
nature of the relief ordered. ‘‘A contempt fine is civil
if it either coerce[s] the defendant into compliance with
the court’s order, [or] . . . compensate[s] the com-
plainant for losses sustained.’’ (Internal quotation
marks omitted.) New Hartford v. Connecticut
Resources Recovery Authority, 291 Conn. 489, 499, 970
A.2d 570 (2009).
There are constitutional safeguards that must be sat-
isfied in indirect contempt cases. ‘‘It is a fundamental
premise of due process that a court cannot adjudicate
a matter until the persons directly concerned have been
notified of its pendency and have been given a reason-
able opportunity to be heard in sufficient time to pre-
pare their positions on the issues involved.’’ (Internal
quotation marks omitted.) Leftridge v. Wiggins, 136
Conn. App. 238, 244, 44 A.3d 217 (2012). It is axiomatic
that due process of law requires that one charged with
contempt of court be advised of the charges against
him, i.e., that he is notified that he is being accused
of being in contempt of court, is given a reasonable
opportunity to defend the contempt charge by way of
defense or explanation, be represented by counsel and
be given a chance to testify and to call witnesses in his
behalf. It is not disputed that the plaintiff failed to file
a written motion with the court seeking to have the
defendant found in contempt for violation of the auto-
matic orders due to his rental of the ski lodge. Practice
Book § 25-23 incorporates Practice Book § 11-1, which
requires motions to be in writing, and Practice Book
§ 25-27 specifies what specifically should be alleged in a
motion for contempt. ‘‘The purpose of requiring written
motions is not only the orderly administration of justice
. . . but the fundamental requirement of due process
of law.’’ (Citation omitted.) Connolly v. Connolly, 191
Conn. 468, 475, 464 A.2d 837 (1983). Accordingly, as
there was no notice to the defendant that he was facing
a finding of contempt with respect to the ski lodge
rental, the court erred when it held the defendant in
contempt for spending $10,000 on the rental of the ski
lodge after the automatic orders went in effect.
Our consideration of the validity of the court’s finding
that the ski lodge expenditure violated the automatic
orders, however, does not end here. In O’Brien v.
O’Brien, supra, 326 Conn. 81, our Supreme Court held
that, even in the absence of a contempt finding, a trial
court has the authority to compensate a spouse for
losses caused by a violation of the automatic orders by
adjusting the distribution of marital assets in the injured
spouse’s favor. Id., 96; see also Clement v. Clement, 34
Conn. App. 641, 647, 643 A.2d 874 (1994) (‘‘[i]n a con-
tempt proceeding, even in the absence of a finding of
contempt, a trial court has broad discretion to make
whole a party who has suffered as a result of another
party’s failure to comply with the court order’’ (empha-
sis added; internal quotation marks omitted)). Thus, if
the lease of the ski lodge was a violation of a court
order, the court was free to craft a remedial order. In
the present case, the court’s order that the defendant
reimburse the plaintiff for one half of the $10,000 cost
of the ski lodge rent was remedial in nature.29
Next, we address the defendant’s challenge to the
court’s finding of contempt based on his investment
in cryptocurrency and the consequential sanction of
reimbursement, and the court’s remedial order regard-
ing the rental of the ski lodge, on the basis of both
being violations of the automatic orders. As to both
the expenditure for the rental of the ski lodge and the
investment in cryptocurrency, the defendant argues
that they both met the exception in Practice Book § 25-
5 for the transfer or disposal of marital property ‘‘in
the usual course of business.’’ We are not persuaded.
Whether a particular transaction has been conducted
in the usual course of business presents a question of
fact, to be determined by looking to the circumstances
of each case. See Quasius v. Quasius, 87 Conn. App.
206, 208, 866 A.2d 606 (reviewing trial court’s finding
concerning usual course of business exception for
abuse of discretion because trial court is ‘‘in the best
position to assess all of the circumstances surrounding
a dissolution action’’ (internal quotation marks omit-
ted)), cert. denied, 274 Conn. 901, 876 A.2d 12 (2005).
‘‘Whether a transaction is conducted in the usual course
of business does not turn solely on the type of asset
or transaction but on whether the transaction at issue
was ‘a continuation of prior activities’ carried out by
the parties before the dissolution action was com-
menced.’’ (Emphasis in original.) O’Brien v. O’Brien,
supra, 326 Conn. 115.
In O’Brien, our Supreme Court addressed the plain-
tiff’s claim that his stock and option transactions did not
violate the automatic orders established under Practice
Book § 25-5 because they fell within the exception for
transactions made ‘‘in the usual course of business.’’
Id., 112. The court began by adopting an expansive
definition of business: ‘‘We do not suggest . . . that
the usual course of business exception is reserved only
for transactions made in connection with a party’s busi-
ness or profession; rather, because the automatic orders
are intended to maintain the status quo between the
parties, the exception would appear to extend to per-
sonal transactions, but only if any such transactions are
conducted in the normal course of the parties’ ordinary
activities, such that both parties would fully expect the
transactions to be undertaken without prior permission
or approval.’’ Id., 115 n.12. Thus, personal transactions,
such as the rental of the ski lodge and the cryptocur-
rency investment in the present case, will meet the
exception only if they previously were conducted in
the normal course of the parties’ ordinary activities,
such that both parties would fully expect the activity
to be undertaken without the actor obtaining prior con-
sent. See id.
We conclude that the court did not abuse its discre-
tion in finding that the exception did not apply in the
present case to the rental of the ski lodge or the invest-
ment in cryptocurrency. The defendant admitted that
he did not request permission from the plaintiff before
he purchased the cryptocurrency, that he purchased it
for the first time between November, 2017 and January,
2018, and that he did not have accounts to purchase
the cryptocurrency prior to the commencement of the
dissolution action. During closing argument, the court
alerted the defendant to the O’Brien case, likened the
defendant’s conduct to that of the husband in O’Brien,
and then asked counsel who should bear the burden for
the cryptocurrency loss. In response, the defendant’s
counsel admitted, ‘‘[l]isten, he’s got some exposure in
that regard . . . in terms of offset and loss.’’
Similarly, in September, 2018, while the divorce
action was pending, the defendant withdrew $10,000
from a checking account for the ski house rental with-
out the plaintiff’s permission. He claims that this was
in the usual course of business because the parties,
during the course of their marriage, took vacations with
the children. There is a distinction, however, between
a vacation rental that one or both of the parties custom-
arily had agreed to undertake while the marriage was
still intact, and an unprecedented rental of a ski lodge
that the defendant used on weekends with not only the
parties’ minor children, but with friends, his girlfriend,
and his girlfriend’s children. While they were still living
together, the parties had never rented a ski lodge. The
defendant admitted that he did not discuss the rental
of the ski lodge with the plaintiff in September, 2018.
He indicated that he took weekend ski trips with the
children, but never went skiing with the plaintiff with-
out the children because she does not ski. There is no
evidence that a seasonal rental of a ski lodge, with or
without the plaintiff, was customary during the mar-
riage. Accordingly, the court was justified in concluding
that this expenditure also was not in the usual course
of business.
In light of the foregoing, we conclude that the court
properly found the defendant in contempt for the crypt-
ocurrency investment as a violation of the automatic
orders and for concluding, despite its improper finding
of contempt, that the defendant further violated those
orders by virtue of his having rented the ski lodge. It
was not an abuse of discretion for the court to order
the defendant to reimburse the plaintiff for one half of
the $10,000 cost for rental of the ski lodge as a remedial
order and for one half of the $22,000 loss that he
incurred as a result of the cryptocurrency investment
as a sanction for his contempt of court.
IV
FAILURE TO ATTRIBUTE AN EARNING CAPACITY
TO THE PLAINTIFF
The defendant’s next claim is that the court abused
its discretion by failing to attribute an earning capacity
to the plaintiff in determining alimony and child sup-
port. The defendant argues that, under the circum-
stances of the present case, the court should have based
its financial orders on the plaintiff’s earning capacity,
rather than on her actual earned income. Moreover, the
defendant argues that, in light of the evidence of the
plaintiff’s prior earnings, her age, and her qualifications,
the court improperly awarded child support and ali-
mony based on a finding of no actual net income. We
disagree.
The court determined that the basic child support
obligation and alimony orders ‘‘must be based upon
the net income of the parties.’’ It then found that the
plaintiff’s net income was $0 per week and relied on that
finding in crafting its financial orders. The defendant
argues that the court erred in not attributing an earning
capacity to the plaintiff based on her earnings earlier
in the marriage, which, over a two year period in 2010
and 2011, had been in the range of $45,000 to $65,000.
‘‘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 pre-
sented. . . . It is within the province of the trial court
to find facts and draw proper inferences from the evi-
dence presented. . . . In 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. . . . [T]o con-
clude that the trial court abused its discretion, we must
find that the court either incorrectly applied the law or
could not reasonably conclude as it did. . . . Appellate
review of a trial court’s findings of fact is governed by
the clearly erroneous standard of review. . . . A find-
ing of fact is clearly erroneous when there is no evi-
dence in the record to support 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 mistake has been committed.§ (Cita-
tions omitted; internal quotation marks omitted.) Tra-
cey v. Tracey, 97 Conn. App. 122, 124–25, 902 A.2d
729 (2006).
First, we address the argument that the court’s analy-
sis was flawed as a matter of law because the court
relied on the plaintiff’s actual earnings, rather than on
her earning capacity. ‘‘[O]ur case law is clear that a
party’s earning capacity is the amount that he or she
realistically can be expected to earn. . . . It is not the
amount the party previously has earned or currently
may be earning.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Steller v. Steller, 181
Conn. App. 581, 592, 187 A.3d 1184 (2018). ‘‘In marital
dissolution proceedings, under appropriate circum-
stances, the trial court may base financial awards on
the earning capacity rather than the actual earned
income of the parties . . . when . . . there is specific
evidence of the [party’s] previous earnings. . . . It is
particularly appropriate to base a financial award on
earning capacity where there is evidence that the [party]
has voluntarily quit or avoided obtaining employment
in [the party’s] field.’’ (Emphasis in original; internal
quotation marks omitted.) Brown v. Brown, 148 Conn.
App. 13, 21–22, 84 A.3d 905, cert. denied, 311 Conn. 933,
88 A.3d 549 (2014). ‘‘Earning capacity, in this context,
is not an amount which a person can theoretically earn,
nor is it confined to actual income, but rather it is an
amount which a person can realistically be expected
to earn considering such things as his vocational skills,
employability, age and health.’’ (Internal quotation
marks omitted.) Elia v. Elia, 99 Conn. App. 829, 833,
916 A.2d 845 (2007).
The defendant claims that the court should have
attributed an earning capacity to the plaintiff of between
$65,000 and $85,000, based on her testimony as to what
she had earned in 2012, the last time she was employed.
The court found that the plaintiff considered herself a
full-time homemaker although, while at home, she once
had performed a part-time bookkeeping project for a
friend, earning approximately $4000 to $5000, and had
overseen the renovations to the Riverside house. Some
acquaintances also had paid her to take photographs
as photography was a hobby of hers. The most she had
been paid for her photographs was $495 in one year.
The court further found that the plaintiff had not
worked full-time since 2012, which coincided with the
birth of the parties’ first child. The plaintiff testified
that she and the defendant planned that she would stay
home and care for the children as it did not make
economic sense for her to incur child care expenses
that would be necessary as a result of her employment.
She testified that if she were to work, the quality of her
children’s lives would suffer, as they had suffered while
she was busy with the renovations of the Riverside
house. She also testified that she had no family living
in the United States to assist her with the two children.
During closing arguments, the court expressed its
appreciation for the hard work required of both working
mothers and homemakers. The court entered parenting
orders that established the plaintiff’s home as the pri-
mary residence of the children.
With respect to the plaintiff’s health, the court found
that she has vision problems and a serious hearing
deficit. The plaintiff testified that the hearing impair-
ment substantially worsen in the last five years and that
she cannot hear ‘‘half of what’s going on.’’ She indicated
she has 65 percent hearing loss in her right ear and that
she planned to have surgery, which might not fully
restore her hearing to 100 percent. The two minor chil-
dren at the time of the dissolution were still preschool
age and, with the exception of the photography projects
and the bookkeeping project, the plaintiff was unem-
ployed, while the defendant’s annual gross income was
in excess of $900,000.
Acknowledging the importance of a mother’s role,
the court reasonably could have determined that the
plaintiff’s desire to stay home and to raise her children
for the foreseeable future was not an act of indolent
work avoidance. There was evidence that the parties
had decided that after their first child was born the
plaintiff would no longer work, the birth of their second
child occurred soon after the birth of their first child,
their children were very young in age, the plaintiff had
a hearing disability, and, with the defendant’s approval,
the plaintiff had been primarily a full-time homemaker
for five years prior to the filing of the dissolution action
because her working did not make economic sense
given transportation, day care and other expenses. In
light of these undisputed circumstances, the court rea-
sonably could have determined that the plaintiff did
not voluntarily quit or avoid employment in her field.
Thus, the court’s determination to base its awards of
child support and alimony on the plaintiff’s actual
income at the time of the dissolution, which it found
to be zero, was not contrary to law.30
We further observe that, in considering all relevant
statutory criteria, no single criterion is preferred over
others, and the trial court, in entering its financial
orders, has broad discretion in varying the weight
placed on each criterion under the circumstances of
each case. See Jungnelius v. Jungnelius, 133 Conn.
App. 250, 262, 35 A.3d 359 (2012). The court expressly
stated that it had considered all of the relevant statutes
before rendering its judgment. It awarded the plaintiff
time limited alimony, taking into consideration the fac-
tors set forth in General Statutes § 46b-82, including
the age, education, earnings and work experience of
the wife, as well as her current primary parenting
responsibilities, and found that, in light of the facts
and circumstances of the case, a time limited award of
alimony, which will end in 2029, before either child
attains the age of majority, was appropriate. Thus, the
court impliedly found that the plaintiff would have the
capacity in the future to earn a salary sufficient to
support herself. The court reasonably could have con-
cluded that the plaintiff’s childcare responsibilities and
health concerns would not permit an immediate, cost
beneficial return to the workforce but that, eventually,
there would need to be a gradual return to gainful
employment on the plaintiff’s part. The court also deter-
mined that the amount of alimony awarded to the plain-
tiff would be nonmodifiable by the defendant if the sole
basis for the modification were to be the annual gross
earnings of the plaintiff of $35,000 or less, which is one
way to encourage a nonworking spouse to eventually
return to the workforce.
To the extent that the defendant, apart from arguing
that the court improperly relied on the plaintiff’s actual
net income, incorrectly found that her actual net income
was $0 at the time of the dissolution, we readily con-
clude that this finding was consistent with the evidence,
including the plaintiff’s financial affidavit dated Novem-
ber 16, 2018, on which the court expressly relied.
Accordingly, the court’s finding in this regard was not
clearly erroneous.
V
AWARDS OF ATTORNEY’S FEES TO THE PLAINTIFF
The defendant’s final claim is that, in violation of the
directive of § 46b-62 (a)31 and relevant decisional law,
the court erred in awarding the plaintiff attorney’s fees
for representation during the marital dissolution pro-
ceedings, postjudgment matters and this appeal. We are
not persuaded.
Before we consider the orders at issue in this claim—
one related to attorney’s fees incurred during the disso-
lution proceedings and one related to attorney’s fees
incurred during postjudgment matters and in connec-
tion with the present appeal—we set forth the relevant
legal principles. In dissolution and other family court
proceedings, pursuant to § 46b-62 (a), the court may
order either parent to pay the reasonable attorney’s
fees of the other in accordance with their respective
financial abilities and the equitable criteria set forth in
§ 46b-82, the alimony statute. That statute provides that
the court may 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, educa-
tion, employability, estate and needs of each of the
parties and the award, if any, which the court may
make pursuant to section 46b-81’’ for the assignment
of property. General Statutes § 46b-82. Section 46b-62
(a) applies to postdissolution proceedings because the
jurisdiction of the court to enforce or to modify its
decree is a continuing one and the court has the power,
whether inherent or statutory, to make allowance for
fees. See Krasnow v. Krasnow, 140 Conn. 254, 262, 99
A.2d 104 (1953). ‘‘Whether to allow counsel fees, [under
§ 46b-62 (a)], and if so in what amount, calls for the
exercise of judicial discretion. . . . An abuse of discre-
tion in granting counsel fees will be found only if [an
appellate court] determines that the trial court could not
reasonably have concluded as it did.’’ (Citation omitted;
internal quotation marks omitted.) Misthopoulos v. Mis-
thopoulos, 297 Conn. 358, 386, 999 A.2d 721 (2010); see
also Pena v. Gladstone, 168 Conn. App. 175, 186, 146
A.3d 51 (2016).
A trial court is not limited to awarding fees for pro-
ceedings at the trial level. Connecticut courts have per-
mitted postjudgment awards of attorney’s fees to
defend an appeal. See Friedlander v. Friedlander, 191
Conn. 81, 87–88, 463 A.2d 587 (1983) (affirming award
of attorney’s fees to defend appeal); see also Olson v.
Mohammadu, 169 Conn. App. 243, 264 n.11, 149 A.3d
198, cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016).
A
We first consider the validity of the order issued by
the court, the Honorable Michael E. Shay, judge trial
referee, at the time he rendered the judgment of dissolu-
tion, awarding attorney’s fees of $40,000 to the plain-
tiff.32 On December 10, 2018, the plaintiff filed a motion
for counsel fees pendente lite and an affidavit of attor-
ney’s fees was filed by the plaintiff’s counsel, Attorney
Catherine P. Whelan, on December 21, 2018. The plain-
tiff sought $70,132.34 in fees that had accrued as of
December 20, 2018.33 In its memorandum of decision,
the court indicated that it had reviewed Attorney Whel-
an’s affidavit and found the attorney’s fees incurred by
the plaintiff to be fair and reasonable under all of the
circumstances. It further indicated that ‘‘to require the
[plaintiff], who [had] a minimal earning capacity and
the [primary] responsibility for the two minor children,
to pay [all of] these fees from her portion of the marital
assets awarded to her by virtue of [the court’s decision]
would undermine the purposes of the same; and that
it would be fair and equitable for the defendant to pay
a portion of [the plaintiff’s fees].’’ The court ordered the
defendant to pay Attorney Whelan the sum of $40,000
as a portion of the legal fees and the costs of suit
incurred by the plaintiff in connection with this case,
and the plaintiff was ordered responsible for any bal-
ance due thereafter. The court ruled that the defendant
shall be responsible for any fees and costs incurred
by him.
The defendant claims that the plaintiff received ample
liquid funds from the trial court’s judgment with which
to pay the attorney’s fees awarded to her and that the
court, in awarding her these fees, unreasonably con-
cluded that it would undermine the financial package
awarded to her at the time of the dissolution if the
plaintiff had to pay her own fees. He also asserts that
the plaintiff was awarded substantial alimony and child
support as well as a higher percentage of the parties’
assets. The plaintiff contends that the trial court prop-
erly exercised its discretion in awarding her attorney’s
fees and reasonably concluded that not doing so would
have undermined her other financial awards.
Although the basic focus of § 46b-62 (a) is compensa-
tory and supports an award only if the prospective
recipient of a fee award lacks ample liquid assets to
cover the cost of his or her own legal expenses, our
Supreme Court, in Eslami v. Eslami, 218 Conn. 801,
820, 591 A.2d 411 (1991), held that in addition to the
situation in which one party does not have ample liquid
assets to pay attorney’s fees, a court also may award
fees even if the movant has ample liquid assets when
the failure to award them will undermine the court’s
other financial orders. Judge Shay expressly relied on
the latter justification in awarding the plaintiff attor-
ney’s fees. See, e.g., Maguire v. Maguire, 222 Conn. 32,
44, 608 A.2d 79 (1992). He made no finding as to whether
or not the plaintiff had ample liquid assets, nor was he
required to do so. Our Supreme Court has recognized
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 deci-
sion regarding attorney’s fees does not undermine its
purpose in making any other financial award.’’ (Internal
quotation marks omitted.) Hornung v. Hornung, 323
Conn. 144, 170, 146 A.3d 912 (2016). An award of counsel
fees to a spouse who had sufficient liquid assets may
be justified if the failure to do so would substantially
undermine the other financial awards. See Eslami v.
Eslami, supra, 820.
On her financial affidavit filed at the time of the
dissolution, the plaintiff claimed no weekly net income,
a total of $957,500 in assets, $9183.68 in weekly
expenses and $232,300 in liabilities. The defendant’s
financial affidavit reflected a net weekly income from
his base salary of $4462. Also in evidence was a paystub
reflecting his 2017 bonus income with deductions. His
claimed weekly expenses were $13,313, his assets were
$1,523,242, and his liabilities were $262,852, including
an unspecified amount owed for his own attorney’s
fees.
The court ordered the parties to split equally their
bank accounts, including the previously escrowed sum
from what was left of the defendant’s 2017 bonus,
$63,000, and to split equally the net proceeds from the
defendant’s 2018 bonus, which the defendant testified
would be $550,000 gross. Additionally, the plaintiff
received $16,000 on account of the defendant’s violation
of the automatic orders, the Greenwich condominium
with $150,000 in equity, one half of the net proceeds
after the sale of the Riverside house, listed for sale at
the time of dissolution at $2.45 million with $1.03 million
in equity and one half of the net proceeds after the sale
of the Brooklyn co-op, with equity of approximately
$190,000. The plaintiff also was awarded the properties
in Azerbaijan—an apartment and an apple orchard, val-
ued at approximately $50,000—which were both being
used by her mother. The plaintiff was additionally
awarded a $483,910 share of the parties’ retirement
assets. The defendant was awarded $303,839 as his
share of the retirement assets.
What the defendant fails to acknowledge is the obvi-
ous fact that, for the foreseeable future, the plaintiff
will be in a far less favorable position than he is to
earn a significant salary and, thus, to be able to further
enhance the marital assets that she has acquired as the
result of the dissolution or to acquire additional assets.
In addition to Judge Shay’s indication that not award-
ing the plaintiff $40,000 in attorney’s fees would under-
mine the other financial orders pursuant to Maguire v.
Maguire, supra, 222 Conn. 44, Judge Shay’s decision
expressly stated that he considered the statutory crite-
ria set forth in § 46b-82, as required by § 46b-62. That
general reference by the court to those criteria is all
that is required. See Jewett v. Jewett, 265 Conn. 669,
693, 830 A.2d 193 (2003) (court is not obligated to make
express findings on each of statutory criteria in making
award of attorney’s fees under § 46b-62). The court is
‘‘free to weigh the relevant statutory criteria without
having to detail what importance it has assigned to the
various statutory factors.’’ (Internal quotation marks
omitted.) Greco v. Greco, 70 Conn. App. 735, 740, 799
A.2d 331 (2002).
There was evidence reflective of these criteria that
the court might reasonably have considered when it
determined to award the plaintiff a portion of her attor-
ney’s fees. She had no income while the defendant’s
income is in the high six figures. At the time of the
dissolution, she had significant debt to pay—almost
$200,000—a good portion of which had developed
because she borrowed money to renovate the Riverside
house. She further testified that due to the defendant’s
failure to voluntarily provide her and the children with
support throughout 2018, she had to borrow money
from friends and her mother, and could only meet even
basic expenses for her and the children by maxing out
her credit cards.34
Once the defendant quitclaims the Greenwich condo-
minium to the plaintiff, she will be responsible for the
mortgage, taxes, insurance, condominium fees and all
other carrying expenses. The mortgage payment alone
is $2700 per month. She will be responsible for main-
taining the lease on her vehicle. She received no health
insurance benefits as part of the dissolution orders, and
will have to incur expenses to purchase them. Should
she attempt to return to work on a full-time or part-
time basis, there is no clear provision in the divorce
decree for any reimbursement by the defendant to her
for day care costs.35 She also may continue to incur
costs for herself and the children to visit her mother
and other relatives in Azerbaijan once a year, as she
had during the marriage. The court also still held her
responsible for nearly one half of her attorney’s fees.
Pursuant to the § 46b-82 criteria, in awarding counsel
fees, the court also may consider the causes for the
dissolution and, in this case, the court had concluded
that the defendant was primarily at fault, finding that
the evidence supported a finding that ‘‘for years he has
been carrying on a long time extramarital affair with a
person he met on a ski trip.’’ It also may consider the
plaintiff’s earning capacity, which it determined was
minimal, the great disparity between the parties’ earn-
ing capacities; see Emanuelson v. Emanuelson, 26
Conn. App. 527, 533–34, 602 A.2d 609 (1992) (attorney’s
fees award amounting to approximately 3 percent of
wife’s liquid assets was not abuse of discretion in light
of, inter alia, fact that husband caused breakdown of
marriage and great disparity between parties’ earning
capacities); the amount of her income, which it found
to be zero, her employability, and in the case of a parent
to whom the custody of minor children has been
awarded, the desirability and feasibility of such parent
securing employment.
Moreover, several of the assets awarded to the plain-
tiff also were not necessarily easily or quickly liqui-
dated. It was not clear when either of the two properties
ordered sold would actually be sold. The Brooklyn co-
op sales contract had a mortgage contingency clause,
and the Riverside house had been on the market for
more than one year.36 Given the amount of her credit
card debt, it might not be easy for the plaintiff to sell
the Greenwich condominium and buy something less
expensive to maintain, and she and the children need
a place in which to live. The court reasonably could
have determined that it did not want the plaintiff to
have to reach into her awarded retirement funds and
incur possible tax penalties. The division of the defen-
dant’s Fidelity IRA was going to require the drafting of
a QDRO. The only assets she was awarded that were
capable of being immediately liquidated were her share
of the bank accounts and the equal division of the defen-
dant’s 2018 bonus. The plaintiff owed a total of
$70,132.34 in attorney’s fees, which, contrary to the
defendant’s contention, does not represent a small frac-
tion of the liquid assets awarded to her. See Mistho-
poulos v. Misthopoulos, supra, 297 Conn. 383–87
($64,000 attorney’s fees award was proper when ‘‘the
overwhelming majority of the assets awarded to the
[wife] were not liquid assets,’’ given that ‘‘$2.6 million
of the approximately $3.2 million in assets awarded to
the [wife] consisted of the family home in which the
[wife] and the parties’ three minor children resided’’
and ‘‘also included her interest in a trust . . . certain
retirement accounts, vested stock and vested stock
options’’).
The court reasonably could have concluded that, in
spite of its generous child support and alimony awards,
there was a need to protect the financial package it had
established for the plaintiff to allow her, prior to her
alimony being terminated in ten years or earlier, to
achieve a more financially stable, less dependent posi-
tion in her life, which it acknowledged would be compli-
cated by the raising of two children and her hearing
deficit. Having rejected the plaintiff’s request for life-
time alimony, the court reasonably could have endeav-
ored to assure that the plaintiff had a strong financial
base on which to build before the expiration of the
alimony and child support orders, which was not going
to occur that far into the future. This is illustrated by
the fact that the court also allowed the plaintiff to earn
$35,000 before the defendant could use any potential
earnings on her part as a basis for a modification. See
Weiman v. Weiman, 188 Conn. 232, 235, 237, 449 A.2d
151 (1982) ($10,000 attorney’s fees award to wife was
proper when trial court ‘‘could reasonably have con-
cluded that [her] financial resources . . . were neces-
sary to meet her future needs’’ and alimony awarded
to her ‘‘was not substantial in amount nor was it for a
long period of time’’). In this case, the plaintiff would
receive a monthly alimony award of only $6200 and
would not receive her 50 percent share of the defen-
dant’s gross bonus income until the end of 2019.
Affording the court every reasonable presumption in
favor of the correctness of its decision, we assume that
Judge Shay, in determining his award of pendente lite
attorney’s fees to the plaintiff, relied on evidence rele-
vant to each statutory criterion as it applied to both
parties. We therefore conclude that Judge Shay properly
exercised his discretion in granting the plaintiff’s
motion for attorney’s fees.
B
We next address the claim raised in the defendant’s
amended appeal, which is that the court, Hartley Moore,
J., abused its discretion in awarding the plaintiff post-
judgment counsel fees—$10,000 for postjudgment liti-
gation and $20,000 to defend this appeal.
On February 1, 2019, the plaintiff filed two motions
for counsel fees to cover postjudgment fees incurred
as a result of postjudgment litigation that she alleged
had become necessary to protect her interests and
assets at the trial level, and one motion seeking fees
to defend this appeal. The first motion sought attorney’s
fees that were necessary to prosecute and defend a
number of postdissolution motions filed by both parties
between January 4 and April 1, 2019.
An evidentiary hearing was held before the court,
Hartley Moore, J., on April 1, 2019. Judge Hartley Moore
heard testimony from both parties. The defendant testi-
fied that he had moved to an apartment in Greenwich
with his girlfriend and was not only paying partial rent
for his former apartment in White Plains, New York,
but also paying a higher rent, $4800, in Greenwich, with
assistance from his girlfriend. During his testimony, he
admitted that, on March 12, 2019, he had e-mailed the
plaintiff and demanded that she pay one half of the
$22,922 that he had paid for the children to be able to
ski that winter, which included the cost of renting the
ski lodge, as her 50 percent share of an extracurricular
activity pursuant to the dissolution orders. He further
testified that he had paid a new law firm, Pullman &
Comley, LLC, a $50,000 retainer—$15,000 for postjudg-
ment litigation and $35,000 to represent him in this
appeal. He also indicated that he had paid most of the
fees owed to the attorneys that represented him during
his divorce and that he owed only $37,000 out of a total
of more than $220,000.
The plaintiff indicated that she was now paying the
mortgages for the Greenwich condominium and the
Brooklyn co-op, even though the latter was ordered to
be paid by the defendant until it sold, and that she had
started working part-time. She could not afford health
insurance for herself. She still owed more than $90,000
in credit card debt, and was behind on her car payments.
She no longer had the ability to borrow from her mother
after borrowing another $10,000 in February, 2019, to
partially pay her legal fees.
Judge Hartley Moore, in issuing her orders, indicated
that she had considered the parties’ respective financial
abilities and the criteria set forth in §§ 46b-62 and 46b-
82, which, as noted previously, was all that she needed
to do. She did not need to mention each and every
criterion specifically. See Greco v. Greco, supra, 70
Conn. App. 730–40. She then granted both motions after
finding that the defendant ‘‘was able to obtain signifi-
cant funds for a retainer for new counsel to represent
him postjudgment,’’ and that he had ‘‘rented an expen-
sive ski house for the season and [had] started paying
the alimony and child support order in February, 2019.
The plaintiff has nominal income from part-time
employment and has the primary responsibility of car-
ing for two very young children. Moreover, the plaintiff
was awarded counsel fees in the underlying dissolution
of marriage action.
The defendant claims that, because Judge Hartley
Moore mentioned his seasonal rental of the ski lodge
and his lack of any child support or alimony payments
to the plaintiff until February, 2019, her orders were
therefore punitive, intended to punish him for his pen-
dente lite failings. The defendant further claims that
the court improperly considered the retainer that he
had paid to his appellate attorney, the ski lodge rental,
and the plaintiff’s primary responsibility for the care of
the children as consideration for awarding fees because
the plaintiff already was adequately compensated for
childcare with her child support award and for the
ski lodge rental, which had been determined to be a
violation of the automatic orders, by Judge Shay’s
$16,000 remedial order. Finally, he claims that the
defendant’s ability to pay a retainer to his own attorney
should have had no bearing on Judge Hartley Moore’s
decision. We disagree.
Granting Judge Hartley Moore every reasonable pre-
sumption in favor of the correctness of her decision,
we believe her commenting on the expensive ski lodge
rental was because it became an issue during the April
1 hearing as the result of the defendant’s demand of
the plaintiff in an e-mail that she reimburse him for 50
percent of the cost of extracurricular skiing expenses
for the children, including the cost for renting the ski
lodge. Judge Hartley Moore may have referenced the
ski lodge rental in order to find that the plaintiff did
not owe the defendant any compensation for that rental
based on Judge Shay’s decision. Obviously, any money
the defendant claimed the plaintiff was not paying him
pursuant to the orders of the court might have had an
effect on her request for counsel fees.
Judge Hartley Moore’s mention of the fees the defen-
dant paid to his appellate attorney, the fact that the
defendant did not begin to pay alimony and child sup-
port until after the divorce and the plaintiff’s primary
childcare responsibilities were fair and legitimate com-
ment on certain of the criteria she is permitted to con-
sider under §§ 46b-62 (a) and 46b-82 when determining
whether attorney’s fees should be awarded. She was
allowed to consider the parties’ financial abilities, not-
ing the plaintiff’s nominal earnings, the needs of the
parties, their station, and in the case of a parent to
whom custody of minor children has been awarded,
the desirability and feasibility of such parent’s securing
employment. See General Statutes § 46b-82.
In addition, the court appropriately referred to the
judgment of dissolution wherein, only a few months
earlier, Judge Shay had awarded the plaintiff attorney’s
fees incurred by her in connection with the underlying
dissolution action, and stated that the intent of his
award was to preserve for the plaintiff the financial
benefits the dissolution court had created for her with
its financial orders. See Maguire v. Maguire, supra, 222
Conn. 43–44. Given the few months in time that had
elapsed since the judgment of dissolution had been
rendered, Judge Hartley Moore was entitled to take
Judge Shay’s recent decision into account, especially
because the plaintiff had yet to receive the full benefit of
the property distribution awards. Judge Hartley Moore
was not required to ‘‘make an express finding with
respect to whether the fee award is necessary to avoid
undermining the other financial orders, so long as the
record supports that conclusion.’’ Grimm v. Grimm,
276 Conn. 377, 397, 886 A.2d 391 (2005), cert. denied,
547 U.S. 448, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).
By stating that she had considered Judge Shay’s finding
in awarding attorney’s fees, we can reasonably infer
that Judge Hartley Moore agreed with his finding.
Affording the court every reasonable presumption in
favor of the correctness of its decision, we conclude
that Judge Hartley Moore reasonably could have relied
on evidence relevant to each statutory criterion as it
applied to both parties, and conclude that she properly
exercised her broad discretion in granting the plaintiff’s
motions for attorney’s fees.
The judgment is reversed only with respect to the
finding of contempt against the defendant for the viola-
tion of the Practice Book § 25-5 automatic orders
related to the rental of the ski lodge and the case is
remanded with direction to vacate that finding; the judg-
ment and the postjudgment orders awarding attorney’s
fees are affirmed in all other respects.
In this opinion the other judges concurred.
1
As will be discussed in greater detail later in this opinion, the attorney’s
fees awarded for representation during the dissolution were ordered by
the Honorable Michael E. Shay, judge trial referee. The fees awarded for
representation during postjudgment proceedings and to defend this appeal
were ordered by Judge Margarita Hartley Moore.
2
Prior to the dissolution, pursuant to a pendente lite order based on a
stipulation of the parties dated August 7, 2018, the defendant had access
to the children every Wednesday night and every other weekend. The court
annexed to its decision a ‘‘Regular Parenting Plan’’ or ‘‘Schedule A,’’ to
which the parties never agreed, and made this Schedule A part of its parenting
orders. The court granted the defendant access to the children on alternating
weekends and Wednesday nights from 6 p.m. to Thursday morning, as well
as additional access on designated holidays, birthdays, school breaks and
two nonconsecutive weeks during the summer. The orders pertaining to
the parties’ joint legal custody, parental access and other parenting responsi-
bilities are not challenged on appeal.
3
During a hearing on the plaintiff’s postjudgment motions for attorney’s
fees on April 1, 2019, the defendant testified that he recently had received
his 2018 bonus of $550,000.
4
The plaintiff testified that the parties paid $2.5 million for the Riverside
house and spent $500,000 on the renovations. At the time of the dissolution,
it had been listed at $2,495,000 after being on the market for more than a
year. On March 1, 2019, the defendant filed a motion to terminate the
appellate stay regarding the orders for the sale of the Riverside house. In
his motion, he alleged that the plaintiff was refusing to consider offers of
purchase and that the mortgage on the property, which he was obligated
to pay, was $24,000 in arrears. After a hearing, the court granted the motion
to allow for the listing and sale of the property with the net proceeds of
any sale to be held in escrow pending the outcome of this appeal.
5
Both parties testified that the plaintiff supervised the renovation project
as if she were the general contractor.
6
On December 12, 2017, the plaintiff filed a motion to enjoin, pendente
lite, seeking to prevent the defendant from reducing in ‘‘any way, shape or
form’’ the net bonus he had received from his employer for the calendar
year 2017.
In an oral decision, the court, Colin, J., granted the motion after making
the following finding: ‘‘The evidence showed that the defendant received a
substantial bonus. He unilaterally decided to pay off a substantial amount
of debt notwithstanding any difficulties that may exist in communication
between the parties.
‘‘The common sense, right thing to do would have been to discuss with
[the plaintiff] how you were going to spend $145,000 approximately before
you did it. . . . The moving party has established enough probable cause
that without some further relief there’s some risk that the remaining portion
of the bonus will be spent without the moving party having any input or
say into it.’’
7
The court cited to nine separate sections of the General Statutes, specifi-
cally General Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-62, 46b-81, 46b-82,
46b-84, 46b-87 and 46b-215a. It also stated that it had considered the Child
Support and Arrearage Guidelines Regulations, effective July 1, 2015.
8
This type of alimony order in family cases is often referred to as an
income ‘‘safe harbor’’ provision. See, e.g., Hornung v. Hornung, 323 Conn.
144, 186, 146 A.3d 912 (2016) (Zarella, J., dissenting).
9
The amount in the HSBC checking account is not ascertainable from
the record.
10
On her financial affidavit, the plaintiff claimed $232,300 in liabilities. The
defendant claimed $262,852. These amounts included significant balances
on a number of credit cards held by each of them and loans from friends
and family members. The defendant also was in arrears on the mortgage
payments for all three properties owned by the parties.
11
The plaintiff claimed that her E-Trade account was worth $1300 and
the defendant claimed that his E-Trade account was worth $1033.
12
On June 25, 2019, the defendant filed motions for articulation of the
court’s January 10, 2019 and April 8, 2019 orders. Both motions were denied,
and the defendant moved this court for review on July 15, 2019. On Septem-
ber 19, 2019, this court granted the defendant’s motions for review but
denied the relief requested.
13
In contrast, after ordering the defendant to pay to the plaintiff $3400
per month for child support, the presumptive maximum amount under the
child support guidelines, the court ordered supplemental child support to
be paid from the defendant’s bonus in a sum ‘‘equal to 10 percent of the
husband’s net bonus after taking into account the normal ‘allowable deduc-
tions’ for the first $250,000 and 5 percent of the excess thereof, up to and
including a ceiling of $750,000.’’ The court indicated that a supplemental
award of child support based on the defendant’s bonus income should be
expressed as a percentage not to exceed 17.71 percent. See Regs., Conn.
State Agencies § 46b-215a-2c (e); see also Maturo v. Maturo, 296 Conn. 80,
96, 995 A.2d 1 (2010).
14
See Maturo v. Maturo, 296 Conn. 80, 120, 995 A.2d 1 (2010) (court may
fashion financial order by utilizing capped percentage of gross bonus as
supplemental alimony, eliminating practical difficulties inherent in order).
15
For the first time on appeal, the defendant also raises a claim in his
principal and reply briefs that the 2017 passage of the Tax Cuts and Jobs
Act (TCJA), Pub. L. No. 115-97, 131 Stat. 2054 (2017), and its changes to
the tax treatment for alimony payments by a spouse in the Internal Revenue
Code, 26 U.S.C. § 71, made it ‘‘impossible’’ for the court to determine what
the defendant’s net bonus income would be when he begins paying alimony.
The TCJA changed the law to eliminate the deduction for alimony, effective
January 1, 2019. This is an issue the defendant did not distinctly raise in
the trial court and we decline to review it as it is unpreserved. The defendant
at trial presented no argument to the court on this purported impossibility
with respect to his particular financial situation. In fact, in his proposed
orders to the court, the defendant proposed an order of ‘‘additional alimony’’
equal to ‘‘20 percent of the gross amount of any bonus(es) up to $500,000,
which [the defendant] may receive from his employment if the case proceeds
to judgment before January 1, 2019, or 15 percent of the net amount of any
bonus(es) up to $500,000 if the case goes to judgment thereafter.’’ (Emphasis
added.) This proposal certainly does not suggest to the court that an order
calculated after January 1, 2019, had been rendered impossible by the TCJA.
Although the defendant filed a motion for articulation, he did not seek
further articulation from the court regarding its rationale for the supplemen-
tal alimony order and whether it took into account the changes in the tax
code ending deductions for alimony payments. Counsel for the defendant
acknowledged in his closing argument that an alimony award might not be
tax deductible to the defendant and that such an award should be reduced
if it was no longer going to be deductible. As we presume the court knows
the law, and allow every reasonable presumption in favor of the correctness
of its action, even if we were to review this claim, we would have no basis
to conclude that the court, in ordering the payable percentages from the
defendant’s gross annual bonus as supplemental alimony after January 1,
2019, failed to consider the impact of the change in the tax code.
16
Title 26 of the United States Code, § 529, provides for the creation
of an account specifically designed for higher education related qualified
expenses. Earnings on contributions invested are tax deferred and withdraw-
als are tax free when used for qualified educational expenses.
17
There was testimony from the defendant and an itemization on his
financial affidavit that each of the children already had a § 529 plan with
$10,000 invested into it, for which the defendant served as trustee.
18
General Statutes § 46b-56c (c) provides: ‘‘The court may not enter an
educational support order pursuant to this section unless the court finds
as a matter of fact that it is more likely than not that the parents would
have provided support to the child for higher education or private occupa-
tional school if the family were intact. After making such finding, the court,
in determining whether to enter an educational support order, shall consider
all relevant circumstances, including: (1) the parents’ income, assets and
other obligations, including obligations to other dependents; (2) the child’s
need for support to attend an institution of higher education or private
occupational school considering the child’s assets and the child’s ability to
earn income; (3) the availability of financial aid from other sources, including
grants and loans; (4) the reasonableness of the higher education to be
funded considering the child’s academic record and the financial resources
available; (5) the child’s preparation for, aptitude for and commitment to
higher education; and (6) evidence, if any, of the institution of higher educa-
tion or private occupational school the child would attend.’’
19
General Statutes § 46b-66 (a) provides in relevant part: ‘‘If [an] agreement
is in writing and provides for the care, education, maintenance or support
of a child beyond the age of eighteen, it may also be incorporated or other-
wise made a part of any such order and shall be enforceable to the same
extent as any other provision of such order or decree . . . .’’ The parties
in the present case entered into no such agreement.
20
As the Riverside house has been ordered sold, the children are not going
to have the benefit of residing in a home in which the costs of renovations
were funded, in part, with their assets.
21
General Statutes § 46b-56 (a) provides in in relevant part: ‘‘In any contro-
versy before the Superior Court as to the custody or care of minor children
. . . the court may make . . . any proper order regarding . . . support of
the children . . . .’’
General Statutes § 46b-84 provides in relevant part: ‘‘(a) Upon or subse-
quent to the . . . dissolution of any marriage or the entry of a decree of
. . . divorce, the parents of a minor child of the marriage, shall maintain
the child according to their respective abilities, if the child is in need of
maintenance. . . . (d) In determining whether a child is in need of mainte-
nance and, if in need, the respective abilities of the parents to provide such
maintenance and the amount thereof, the court shall consider the age, health,
station, occupation, earning capacity, amount and sources of income, estate,
vocational skills and employability of each of the parents, and the age,
health, station, occupation, educational status and expectation, amount and
sources of income, vocational skills, employability, estate and needs of
the child.’’
22
The court endeavored to ensure future educational support in other
ways as well. It ordered the defendant to maintain health insurance for each
child and to maintain group term life insurance naming the plaintiff and the
children as beneficiaries for as long as he has an obligation to pay child
support or postmajority educational support. In addition, it ordered that
any § 529 plans previously established by the defendant ‘‘shall remain in
full force and effect.’’
23
We infer that the court chose the plaintiff as the trustee for the § 529
plans because the money restored in the plans for the benefit of the children
had come from her mother, and because it described the defendant’s postsep-
aration spending as ‘‘uncharacteristically lavish,’’ and found that the defen-
dant had violated the automatic orders. On the basis of the foregoing, it
reasonably may have concluded that the plaintiff, who now assumes a
fiduciary duty, would be the party best capable of handling the funds
responsibly.
24
We reject the defendant’s claim that the court entered an improper
educational support order pursuant to § 46b-56c (c). The court’s order merely
reserving jurisdiction to enter an educational support order in the future is
clear and unambiguous. In Greenan v. Greenan, 150 Conn. App. 289, 91
A.3d 909, cert. denied, 314 Conn. 902, 99 A.3d 1167 (2014), this court held
that, ‘‘[a]lthough [§] 529 accounts pertain to education expenses . . . [§]
529 accounts were not educational support orders pursuant to § 46b-56c.’’
Id., 310. As in Greenan, the court’s order in the present case with respect
to the § 529 plans did not require the defendant or the plaintiff to provide
support in the future should the children attend a postsecondary educa-
tional program.
25
The plaintiff testified that her mother ‘‘gave $30,000 [to] each child that
we spent. It was not to us. We have nothing. We are not allowed to touch
that money. She was very clear about that. It’s presents to the kids.’’
26
Practice Book § 25-5 provides in relevant part: ‘‘The following automatic
orders shall apply to both parties, with service of the automatic orders to
be made with service of process of a complaint for dissolution of marriage
. . . . (b) In all cases involving a marriage . . . whether or not there are
children: (1) Neither party shall sell, transfer, exchange, assign, remove, or
in any way dispose of, without the consent of the other party in writing, or
an order of a judicial authority, any property, except in the usual course of
business or for customary and usual household expenses or for reasonable
attorney’s fees in connection with this action.’’ In the present case, the
service of process included the service of the automatic orders.
27
We are using the term employed by the court, ‘‘cryptocurrency,’’ although
there are references in the record to ‘‘virtual currency’’ and ‘‘Bitcoin.’’
28
There were representations made to the court by the plaintiff and her
counsel that the parties appeared in court numerous times to argue pretrial
motions and the court was never able to accommodate them for a hearing
due to time constraints and for other reasons.
29
Although we have concluded that the contempt finding related to the
ski lodge rental must be set aside, for the reasons that follow, we conclude
that the court’s remedial order related to the ski lodge rental nonetheless
was appropriate and is left undisturbed.
30
We also observe that this is not a case in which the court based its
alimony and child support awards on a minimal earning capacity that it had
attributed to the plaintiff, although the court, after considering the amounts
the plaintiff had been paid for bookkeeping and photography by her friends,
did mention that her earning capacity as of the date of the dissolution was,
in fact, ‘‘minimal.’’ The defendant’s reliance on Tanzman v. Meurer, 309
Conn. 105, 70 A.3d 13 (2013), is therefore misplaced. In Tanzman, our
Supreme Court held that when a trial court has based alimony or child
support awards on a party’s earning capacity, the court must determine the
specific dollar amount of the party’s earning capacity. Id., 107–108.
31
General Statutes § 46b-62 (a) provides in relevant part: ‘‘In any proceed-
ings seeking relief under the provisions of this chapter . . . the court may
order either spouse or, if such proceedings concerns the custody, care,
education, visitation or support of a minor child, either parent to pay the
reasonable attorney’s fees of the other in accordance with their respective
financial abilities and the criteria set forth in section 46b-82.’’
32
The defendant does not contest the reasonableness of the attorney’s
fees incurred by the plaintiff.
33
On January 8, 2019, the defendant filed a motion for counsel fees pen-
dente lite, but the court ordered that he would be responsible for his own
fees and costs in its memorandum of decision. In an updated affidavit
of services, the defendant’s counsel, Attorney Paul H. McConnell, of the
McConnell Family Law Group, LLC, averred that from November 1, 2017
to January 8, 2019, his law firm, and the law firm of Schoonmaker, George,
Colin & Blamberg, P.C., had rendered $213,191.88 in services and expense
advances on behalf of the defendant. At a hearing concerning the plaintiff’s
motion for postjudgment counsel fees and appellate fees, the defendant
testified that he had advanced the law firm of Pullman & Comley, LLC, a
$35,000 retainer to represent him on appeal and had also paid that firm
$15,000 in fees for continuing postdissolution matters.
34
The court was aware of the prior decision by Judge Colin, determining
that the defendant had unilaterally spent a disproportionate amount of his
2017 net bonus without first consulting with the plaintiff. See footnote 6 of
this opinion.
35
The regular parenting plan attached as Schedule A to the court’s memo-
randum of decision, mentions that a parent who is ‘‘not current . . . on
their . . . share of qualified, work related child care . . . expenses . . .
shall forfeit their right to claim the minor children as a dependent that year.
. . . .’’ However, nowhere does the memorandum of decision designate any
shared obligation of the parents for qualified, work related child care. The
court ordered that the parties share equally the cost of extracurricular and
school related activities but, in that provision, does not refer to qualified
work related child care.
36
See footnote 4 of this opinion.