LKMB Founding Partners Recognized by Martindale-Hubbell

LKMB Founding Partners Recognized by Martindale-Hubbell

Once again, Partners Bruce Louden, Robert Katz, and David McGrath have been rated Client Champions and AV Preeminent Attorneys by Martindale-Hubbell. They are each recognized for their professional excellence, ethics, and client care.

For more than 130 years, Martindale-Hubbell has been evaluating attorneys for their strong legal ability and high ethical standards through a Peer Review Rating system. The first edition of Martindale’s American Law Directory, published in 1887, was the first publication to provide such ratings to attorneys.

Today, Martindale-Hubbell continues to provide verified ratings for attorneys based not only on their legal ability and ethical standards as judged by their peers, but also based on reviews from their clients. While the criteria and format of the Peer Review Rating system has evolved since the 1800’s – the goal of Martindale-Hubbell ratings remains the same: to help keep the public informed when making the decision to do business with an attorney or law firm.

AV Preeminent®: The highest peer rating standard. This is given to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers.

Client Champion awards recognize those attorneys who excel at service as affirmed by their clients. The awards, based on the quantity and quality of an attorney’s Martindale-Hubbell client reviews, demonstrate an ongoing commitment to delivering excellent client service.

Award of sole legal and physical custody; mental health diagnosis: F.S. v. J.S., ___ Conn. App. ___ (2024)

Award of sole legal and physical custody; mental health diagnosis: F.S. v. J.S., ___ Conn. App. ___ (2024)

F.S. v. J.S., ___ Conn. App. ___ (2024) (award of sole legal and physical custody; mental health diagnosis)

Officially released February 20, 2024

In Short: Wife was awarded sole legal and physical custody, and Husband was awarded only supervised access contingent on his treatment at his own expense.  Husband threw the kitchen sink of claims at the Appellate Court.  Husband’s diagnosis of narcissistic personality disorder was relied upon to an appropriate extent by the trial court in the context of other evidence and the impact of his behavior.

The parties were married and had one child, born in 2011.  The parties began divorce proceedings in 2016.  The pendente lite period was fraught with conflict and litigation, orders were entered precluding the filing of additional motions, a GAL appointment and removal took place, a criminal protective order and violation thereof occurred, a custody and psychological evaluation was conducted, and various permutations of no access, unsupervised and supervised access for Husband were ordered at different times.

The divorce was granted via separation agreement as to financial matters, with the custody matter than referred to the Regional Family Trial Docket and tried before Judge Nguyen-O’Dowd.  The trial court issued a memorandum of decision regarding custody and multiple outstanding motions.

The trial court set forth detailed findings with regard to Husband’s behavior, parenting skills, difficult relationship with the child, medical diagnosis by two doctors of narcissistic personality disorder and failure to make or maintain progress on treating the same, as well as the healthy relationship between Wife and the child.  The trial court found that Husband was a high conflict individual, prone to making threats, seeking control, and suffering from paranoia and conspiracy theories.  The trial court detailed several disturbing parenting behaviors and incidents by Husband as well as its view that Husband was essentially incapable of providing healthy parenting or recognizing his shortcomings.

The trial court awarded sole legal and physical custody to Wife.  Husband was awarded weekly supervised access with a professional supervisor at his own expense.  Such access would commence after Husband provided proof that he had engaged a clinician to address his narcissistic personality disorder with updated proof required on a quarterly basis.  Husband appealed.

The Appellate Court set forth the abuse of discretion and clearly erroneous standards of review applicable to this appeal and the requirements of C.G.S. § 46b-56 regarding custody and parenting orders.

Husband’s first two claims on appeal asserted that the trial court violated his rights under the Americans with Disabilities Act (“ADA”) by refusing to provide him with medical accommodations and retaliating against him for exercising his rights by denying his motions and prematurely resting his case.  The Appellate Court found the record ambiguous as to whether Husband had a “disability” for purposes of the ADA, but nevertheless concluded that Husband received reasonable accommodations and procedural due process and that Husband provided no evidence of retaliatory animus.  Although Husband had been provided with half day hearings at one point during pendente lite proceedings as a result of his claims of “stress” and a doctor’s note regarding the same, those accommodations were not non-modifiable, nor made pursuant to any ADA request, and the trial court was well within its discretion to manage its docket appropriately during trial.

Husband claimed on appeal that the trial court improperly relied on his mental health diagnosis as a basis of limiting his right to visitation and awarding custody to Wife.  The Appellate Court found that the trial court did not improperly rely on the diagnosis and the trial court appropriately provided reasons based on Husband’s behaviors and failure to improve his behavior.  It was not improper for the trial court to rely, in part, on Husband’s mental health and its effect on the child.

Husband claimed on appeal that the trial court improperly relied on a stale custody evaluation.  The evaluation was completed in December 2019 and the trial concluded in March of 2022 due to numerous delays.  The Appellate Court found that the trial court had ample evidence before it regarding Husband’s present ability to parent, and that the trial court considered and evaluated the report and testimony in light of other current evidence.

Husband claimed on appeal that the trial court improperly required the parties to request leave of the court before filing motions and denied multiple requests.  The Appellate Court noted that trial courts have the discretion to refuse to entertain or decide motions in order to prevent harassing or vexatious litigation.  The Appellate Court found no abuse of discretion in the orders restricting filing of motions.

Husband claimed on appeal that the trial court improperly awarded sole custody of the child to Wife, claiming that they had always shared custody and that Wife made no showing of a substantial change in circumstances.  The Appellate Court found no error.  Irrespective of the orders prior to Judgment, the time of Judgment was the appropriate time to make a final determination of custody.

Husband claimed on appeal that the trial court erroneously found that he had narcissistic personality disorder.  The Appellate Court found ample evidence in the record, including the testimony of the psychological evaluator, to support the factual finding.

Husband claimed on appeal that the trial court committed evidentiary errors including improperly admitting certain testimony of a social worker and an affidavit of the child’s therapist.  The trial court permitted testimony of the social worker over Husband’s objection, the social worker testified that she relied, in part, on the affidavit of the child’s therapist, and the affidavit was marked for identification, but its actual contents were not the subject of testimony and it was not itself admitted. The trial court made no reference to relying on the contents of the affidavit, which were not in evidence.  The Appellate Court applied the abuse of discretion standard to the trial court’s evidentiary ruling and found no error.

The Judgment was affirmed.

Automatic orders effective upon service; dissipation of assets & discretion in property award: Wethington v. Wethington. ___ Conn. App. ___ (2023)

Automatic orders effective upon service; dissipation of assets & discretion in property award: Wethington v. Wethington. ___ Conn. App. ___ (2023)

Wethington v. Wethington. ___ Conn. App. ___ (2023) (automatic orders effective upon service; dissipation of assets & discretion in property award)

Officially released February 13, 2024

In Short: The automatic orders are not effective until they are served (although the court properly considered prior dissipation of funds in fashioning division of assets); the trial court did not abuse its discretion in awarding Wife 60% of the marital estate where Husband was primarily responsible for the breakdown of the marriage and dissipated funds.

The parties married in 2010, had one child in 2012, began divorce proceedings in 2019, and had a four-day divorce trial in 2021-2022 before Judge Egan.  The trial also addressed six motions for contempt, pendente lite.

The trial court found that the primary causes of the breakdown of the marriage was Husband’s “excessive” drinking as well as his physical and verbal abuse.  The trial court found Husband not to be credible.  Wife was awarded 60% of the proceeds from the marital residence and other assets, Husband was found in contempt on the six motions for contempt and ordered to pay $76k out of his share of the proceeds as well as $25k in counsel fees related to those contempt findings.

Husband appealed, claiming that the trial court improperly (1) granted several motions for contempt pendente lite, (2) distributed the parties’ assets, and (3) denied several postjudgment motions to reargue.

Husband’s first claim addressed in the appeal was that he was improperly held in contempt for violation of the automatic orders prior to them becoming effective against him, and the trial court improperly denied his motion to reargue on that point.  Husband was served with the notice of automatic orders on November 21, 2019.  The trial court’s orders addressed, in part, conduct that predated the service of the automatic orders.

The Appellate Court reviewed the legal question regarding the application of the automatic orders and rules of practice under the plenary standard of review.  The Appellate Court also set forth the standard for reviewing a ruling on a motion to reargue, which is abuse of discretion.  Practice Book § 25-5 provides for service of such automatic orders and renders them effective on the plaintiff upon the signing of the complaint and upon defendant upon service.  The Appellate Court found that the trial court improperly found Husband to be governed by the automatic orders prior to service and improperly denied the motion to reargue on that point.

Husband’s second claim addressed in the appeal was that the trial court improperly failed to credit him money he had escrowed in accordance with a stipulation, pendente lite.  The parties had entered into a stipulation providing for certain pendente lite payments to Wife, as well as a $46,000 escrow account for Wife’s use.  Husband contended that the escrow was merely for security for which he should be credited, whereas Wife argued, and the trial court found, that it was an additional obligation.  The Appellate Court determined that the stipulation was clear and unambiguous and that the escrowed monies were an additional obligation.

Husband’s third claim addressed in the appeal was that his purchase of a Mercedes-Benz E350 during the pendency of the action constituted a customary and usual household expense permitted by the automatic orders, that he needed the second vehicle which he purchased for $14,000 for his use while living in Florida.  The Appellate Court reviewed the trial court’s finding of contempt on this point for abuse of discretion.  The Appellate Court rejected Husband’s argument in light of his ownership of another vehicle and lack of credibility as to his needs found by the trial court.

Husband’s fourth claim addressed in the appeal was that the trial court improperly distributed the assets pursuant to C.G.S. § 46b-81.  The trial court had awarded Wife 60% of the marital assets, plus the sums and fees ordered in connection with the contempt findings.  The Appellate Court applied the abuse of discretion standard, and, in light of the trial court’s findings of cause for the breakdown of the marriage and dissipation of funds, the trial court was well within its broad discretion in entering its orders.

The Judgment was reversed only with regard to the contempt and reargument specifically as to the conduct that occurred prior to the entry of the automatic orders and remanded with direction to enter orders consistent with the opinion in that respect.

Bad faith exception to the American rule: Jacques v. Jacques 223 Conn. App. 501 (2024)

Bad faith exception to the American rule: Jacques v. Jacques 223 Conn. App. 501 (2024)

Jacques v. Jacques 223 Conn. App. 501 (2024) (bad faith exception to the American rule)

Officially released January 30, 2024

In Short: The trial court relied on a prior court’s memorandum of decision and did not make sufficiently specific findings as to colorless claims and bad faith to support an award of counsel fees under the bad faith exception to the American rule.  The decision was reversed and remanded for a new hearing on the issue.

The parties were divorced in 2009 by separation agreement.  The separation agreement stated, inter alia, “[A]ny assets over ten thousand and 00/100 ($10,000.00) dollars in fair market value that the [defendant] owns or has an equitable interest in at the time of the dissolution which are not shown by the [defendant] on her financial affidavit, shall, upon discovery by the other party, become [the plaintiff’s] property without any defense interposed by the [defendant] whatsoever as to such claims of the other party.”

In 2016, Husband brought a breach of contract action against Wife, alleging that Wife breached the agreement by failing to disclose certain assets.  Husband alleged that Wife liquidated two annuities prior to the divorce and that those proceeds, over $1m, were undisclosed assets.  Wife countered that those monies were used to purchase land and build Husband’s home, so the proceeds were not undisclosed.  Wife also asserted five special defenses, including the statute of limitations on contract actions.

After a bench trial, Judge Adelman found in favor of Wife, holding that Husband’s action was barred by the six-year statute of limitations per C.G.S. 52-576(a), finding insufficient evidence as to a breach, finding that Wife did not own the annuities at time of Judgment, finding that Husband had knowledge of the funding and construction of the home, and no failure to disclose assets by either party.

In a prior appeal, Husband challenged the conclusion that the statute of limitations barred his action, but that appeal was dismissed as moot because Husband failed to challenge an independent ground for the court’s judgment, namely, insufficient evidence.

In 2020, Wife filed a motion for counsel fees pursuant to C.G.S. § 46b-62, the agreement, Practice Book § 1-25, and the court’s inherent authority.  Wife’s motion stated that the actions were in bad faith and entirely without color.  In 2021, following a hearing, Judge Epstein granted Wife’s motion for counsel fees under the bad faith exception to the American rule and awarded $51,641.

Husband appealed, arguing that the trial court failed to make factual findings with the high degree of specificity required in order to award attorney’s fees under the bad faith exception.  Husband argued that Judge Epstein relied solely on the text of Judge Adelman’s decision which lacked facts or findings sufficient to serve as a basis of the award.

The Appellate Court reviewed the claim under the abuse of discretion standard.  The Appellate Court reiterated the requirements of the bad faith exception to the American rule, namely that the challenged actions are entirely without color and in bad faith as well as a high degree of specificity in the factual findings.  Bad faith focuses on subjective intent.  The Appellate Court concluded that the factual findings of Judge Adelman’s decision were insufficient for Judge Epstein to have relied upon regarding Husband acting in bad faith or his claims lacking color.  Judge Epstein failed to herself review the record from the prior proceedings and make her own factual findings with the required level of specificity.

The judgment was reversed and remanded for a new hearing on the motion for attorney’s fees.



2023: Looking Back at a Good Year

2023: Looking Back at a Good Year

With 2023 in the rear-view mirror, we at LKMB are thankful once more to have had a good year collectively as a firm, as the individuals within it, and on behalf of our clients.

For the seventh time in as many years, we were recognized as an outstanding top-tier law firm by U.S. News and World Report, while continuing to be recognized in Best Lawyers, SuperLawyers, AVVO, and elsewhere. One major non-legal project was a complete overhaul of our website to provide better access to our news and case law updates.

As noted in an earlier article, we are proud to welcome Attorney Edward J. Bryan as our newest partner. Ed has been practicing matrimonial law since 2011 and brings a deep collection of family law experience to the firm.

Managing Partner David McGrath has been active in the American Academy of Matrimonial Lawyers, attending their midyear meeting in the Bahamas, their annual meeting in Chicago, and the joint conference with the Association of Family and Conciliation Courts in D.C. He also serves as treasurer of the AAML Connecticut Chapter. David has been similarly active with the Connecticut Bar Association Family Section, serving as faculty in the year-in-review, providing regular case law updates to the section, and serving as one of the co-authors of an Amicus Brief on R.H. v. M.H. for the Connecticut Supreme Court.

Early in 2023 Bruce Louden and Lou Pepe – former president of the Connecticut Bar Association and senior trial counsel in the Hartford office of McElroyDeutsch – founded “Lawyer Lifers,” a group of attorneys from greater Hartford and beyond who have been in private practice for at least the last 35 years and have no plans to retire. The group meets quarterly and has grown from an initial list of seventeen to over 60, including lawyers from Fairfield and New London counties. Bruce also continues his focus on encouraging the growth of mediation and collaborative work. (More on this group in Bruce’s column, below.)

Attorney Robert Katz will be making a presentation in July 2024 at the 38th International Congress on Law and Mental Health in Barcelona, Spain. The Congress is held every two years sponsored by the International Academy of Law and Mental Health, bringing together an worldwide community of researchers, academics, practitioners and professionals in the fields of law and mental health. Attorney Katz will also participate in a panel discussion regarding the training of forensic experts in such areas as effective evaluation writing, persuasive testimony, and direct versus cross-examination.

Ashley Cervin was reappointed to the YLS Executive Committee for the CBA where she served as a Director. We are proud to report that she was awarded the Volunteer of the Year Award for her extensive pro bono work, which contributed to the section reaching its annual goal of over 1,000 hours of pro bono services. Ashley organized a Confronting Cases with Coercive Control seminar and moderated the panel on the new Connecticut Parentage Act for the Connecticut Legal Conference while finding time to complete the Interdisciplinary Collaborative Practice Training with the Connecticut Council for Non-Adversarial Divorce.

Kayleigh Bowman placed an emphasis on expanding her practice to include both mediation and collaborative divorce. Kayleigh completed both the Interdisciplinary Collaborative Practice Training and the 40-hour Mediation training with the Connecticut Council for Non-Adversarial Divorce expanding her skill set to approach each matter differently based on the unique facts of the case. Kayleigh was also selected as a 2023 Super Lawyers Rising Star, a recognition she has received since 2020.

We are thankful for our entire team and the good work they do with and for our clients. In 2023 our long-time loyal staff members Patrick Buckley and Cecilia Bayek were joined by paralegal Cassandra Angelo, who brought decades of family law experience to the firm, and Kyle Cannon who brings a welcome warmth and energy to our phones and reception area.

New support law went into effect January 1, 2024

New support law went into effect January 1, 2024

It is no secret that Covid-19 impacted how the Connecticut Family Court operated. The tremendous backlog of cases created at the height of the pandemic caused hearings to be delayed by four months or more. For families who were waiting for the court to issue temporary orders for financial support, the added delay was untenable.

To address this, the family court implemented (although not formally approved through the rules committee as of yet and not a part of the Practice Book) a new “Pathways” program which replaced Short Calendar in how motions are handled during a divorce. Pathways has had significant impacts on how and when individuals may get access to the courts. In many cases, some combination of the changing system and the backlog of cases has resulted in substantial delays in access to justice during divorce cases, and a sea change in how and when the courts may be accessed.

In reaction to these changes, the Connecticut General Assembly passed Public Act 23-7 (An Act Ensuring Timely Scheduling of Temporary Financial Support Hearings in Divorce and Custody Proceedings.), effective January 1, 2024, which set a maximum time limit of 60 days from when a motion for temporary alimony or support is filed to when the court must hold a hearing (although the law permits continuances with certain conditions attached). That law is now effective as part of Conn. Gen. Stat. § 46b-83.

While many divorce and custody issues are indeed universal, every family’s situation truly is unique. In an ideal world, most divorcing couples could agree on the terms of any temporary support and their final settlement without needing to go to court. We pride ourselves on our depth of litigation experience, but staying ahead of potential problems and addressing them amicably is an important part of our commitment to doing all that we reasonably can to help our clients emerge positively from the divorce process.

Edward Bryan Joins as Partner; Firm Changes Name to Louden, Katz, McGrath & Bryan, LLC

Edward Bryan Joins as Partner; Firm Changes Name to Louden, Katz, McGrath & Bryan, LLC

We are pleased to announce the firm has added Edward Bryan as Partner and changed the firm name to Louden, Katz, McGrath & Bryan, LLC.

“Ed brings a wealth and variety of complex family law experience,” said Managing Partner David McGrath. “He has a very active litigation practice, but also recognizes that often, parties are able to resolve their differences without judicial intervention. That is why he is also a divorce mediator and a collaborative divorce practitioner. From dealing with complex business structures and trusts to addressing complicated custody issues, Ed has handled the full panoply of family law situations.”

“We’ve known Ed professionally for many years and have no doubt he will seamlessly step into this leadership role,” said Partner Bob Katz. “His professionalism, deep knowledge of matrimonial matters, and personal ethos are in sync with the firm that Bruce, David, and I have carefully cultivated.”

Attorney Bryan has been practicing matrimonial law since 2011. Before joining LKMB, he was a partner at Brown, Paindiris & Scott in Hartford. He was named a “Rising Star” by Super Lawyers (2014-2023). He is a member of the Connecticut Bar Family Law Section, the Hartford County Bar Association, and is a James W. Cooper Fellow of the Connecticut Bar Foundation. He graduated University of Connecticut School of Law, with a certification in Taxation. He completed his undergraduate education at the University of Connecticut as well, where he’s returned as an adjunct professor over multiple semesters to teach Legal Aspects of Family Life, and Child Welfare, Law, and Social Policy.

Ed lives in Farmington with his wife and two children.

Louden, Katz, McGrath & Bryan is an award-winning Connecticut family law firm, providing its clients with representation and advice in litigated, collaborative, and mediated divorces, including such issues as custody, division of assets, alimony, child custody, prenuptial agreements, and appeals. The firm has been named one of the “Best Law Firms in Connecticut” by U.S. News & World Report annually since 2019. Louden, Katz, McGrath & Bryan is located in Hartford, on the Hartford/West Hartford line. For more information, visit

Post-judgment interest for delayed QDRO transfer: Anketell v. Kulldorff 223 Conn. App. 345 (2023)

Post-judgment interest for delayed QDRO transfer: Anketell v. Kulldorff 223 Conn. App. 345 (2023)

Anketell v. Kulldorff 223 Conn. App. 345 (2023) (post-judgment interest for delayed QDRO transfer)

Officially released January 16, 2024

In Short: An award of post-judgment interest by the trial court, pursuant to C.G.S. § 37-3a, was an appropriate equitable remedy for a prolonged delay in the transfer of retirement assets.

The parties married in 2011 and were divorced after a two-day trial in 2018.  The trial court ordered that Husband transfer $175,000 to Wife from retirement accounts of his choice by QDRO, subject to adjustment for gains or losses prior to the Judgment.  Husband previously appealed issues unrelated to his retirement, unsuccessfully, which appeal took years to conclude.

In 2022, Wife filed a post-judgment motion to implement the court orders.  This was followed by a motion for clarification as to whether the award was to be adjusted for gains and losses until date of transfer and requesting statutory interest if it is not subject to adjustment for gains and losses.

An evidentiary hearing was held in 2022. The trial court clarified that gains and losses were only intended through date of dissolution, but found that Defendant’s appeal of the judgment and further delays served to stay the transfer and use of funds for forty-six months.  The trial court found that C.G.S. § 37-3a provided an equitable and appropriate remedy and awarded 5% interest (rather than the maximum 10% permissible under statute) for the wrongful detention of the monies.  The trial court awarded additional prospective interest in the event of any future delay.

Husband appealed the award of interest, specifically for the time period after the prior appeal had ended.  Husband argued that Wife’s attorneys were responsible for the delay.

The Appellate Court applied the abuse of discretion standard to the interest award pursuant to C.G.S. § 37-3a.  The Appellate Court noted that the statute does not use the word “wrongful” although prior Supreme Court cases have regularly employed the term.  In analyzing what evidence, if any, of “wrongfulness” is required, the Appellate Court determined that it is sufficient to prove the underlying legal claim, namely, that money was due but was not paid.

The Appellate Court declined to review materials in Husband’s appendix which were not part of the record and found no abuse of discretion by the trial court.  Wife had lost the use of the $175,000 for a substantial period of time from its intended transfer date, and that was sufficient to support a wrongful detention for purposes of C.G.S. § 37-3a.  There was no evidence in the record to support the claim that Wife had refused to accept the money.

The Appellate Court also rejected Husband’s claim as to an award of future interest, in the event of a future unnecessary delay in the QDRO.  Such future award would still not be self-executing and would require findings as to the responsibility of any unnecessary delay, and such determination has not yet been made.

The Judgment was affirmed.

Our Most-Read News & Blog Posts in 2023

Our Most-Read News & Blog Posts in 2023

It’s always interesting at the start of a new year to look at our website stats and see which topics were the most compelling to our site visitors, newsletter subscribers, and social media followers. Here are the stories that captured the most readers in 2023:

  1. A major update to state parentage laws: The Connecticut Parentage Act.
  2. A Connecticut child support precedent: Renstrup v. Renstrup.
  3. Stalking, restraining orders, and children: RH v. MH.
  4. Family member or property: What happens to pets in a Connecticut divorce?
  5. Disposition of Pre-embryos; Consideration and Contracts: Bilbao v. Goodwin.
Due process and the right to be heard: Zakko. v. Kasir. 223 Conn. App. 205 (2023)

Due process and the right to be heard: Zakko. v. Kasir. 223 Conn. App. 205 (2023)

Zakko. v. Kasir. 223 Conn. App. 205 (2023) (due process and the right to be heard)

Officially released January 9, 2024

In Short: this case has a very complicated history and numerous issues were raised on appeal, but the sole issue addressed by this decision (which rendered all other claims moot) was a simple one: The trial court violated Husband’s due process rights when it opened the Judgment of dissolution at an Oneglia hearing without permitting Husband to present any evidence or inquire of any witness.

The parties were divorced in 2016 by separation agreement.  Prior to the divorce and again at the time of the divorce, Husband disclosed on his financial affidavit a disability insurance policy held with Mass Mutual, for which he did not list a value.  After the dissolution, Husband applied for, and received, benefits from the Mass Mutual disability insurance policy that he disclosed.  The alimony orders in the separation agreement included specific limitations with regard to modification of alimony based on percentages of Husband’s earned income and Veteran’s Disability income.

After the Judgment, Wife filed a motion to compel, two motions for contempt and a motion for modification, based on the Mass Mutual disability insurance payments, which motions were denied.  Wife then filed a motion to open the Judgment of dissolution on the basis of fraud or mutual mistake.  An Oneglia hearing was scheduled to determine whether there was probable cause of a fraud sufficient to permit post-judgment discovery.

The parties appeared before Judge Dolan for the Oneglia hearing.  Wife’s counsel called Husband to the stand and began a direct examination.  After a brief direct examination, Judge Dolan interjected by asking questions, making statements and factual findings, and then summarily terminated the hearing.  Judge Dolan found that Husband had not committed fraud but opened the judgment as to financial matters on the basis of mutual mistake and “fundamental fairness.” Husband filed a prior appeal regarding the opening of the Judgment, which appeal was dismissed as interlocutory.

The divorce was then tried before Judge Klau over five days in 2021.  Wife appealed Judge Klau’s decision on various grounds and Husband cross-appealed arguing that his due process rights were violated in the hearing on the motion to open the judgment before Judge Dolan.

The Appellate Court reviewed Husband’s cross appellate argument regarding due process under the plenary standard of review.  The Appellate Court set for the minimum standards of due process, including the right to be heard in a meaningful time and in a meaningful manner, citing Merkel v. Hill, 189 Conn. App. 779, 786-87 (2019), Morera v. Thurber, 187 Conn. App. 795, 799-800 (2019), Eliers v. Eiles, 89 Conn. App. 210, 218 (2005) and Szot v. Szot, 41 Conn. App. 238, 242 (1996).  The Appellate Court found that Husband’s due process rights were violated because Husband was not permitted to introduce any evidence or have a reasonable opportunity to be heard regarding the motion.  The decision opening the Judgment was reversed, the original 2016 financial orders were reinstated, and the matter was remanded for a hearing on the underlying motion to open.

*Attorney McGrath represented the Husband in this appeal.

Division of extracurricular costs is separate from the child support guidelines: Marcus v. Cassara 223 Conn. App. 69 (2023)

Division of extracurricular costs is separate from the child support guidelines: Marcus v. Cassara 223 Conn. App. 69 (2023)

Marcus v. Cassara 223 Conn. App. 69 (2023) (division of extracurricular costs is separate from the child support guidelines)

Officially released December 26, 2023


In Short: The dicta is the key to the case: the trial court may order division of extracurricular expenses between the parties pursuant to § 46b-56, separate and distinct from the basic child support obligation and guideline analysis, without any finding of deviation. (The holding was that the trial court erred by granting a modification based on a ground not raised in the motion to modify).


The parties were never married and had three children together.  In 2008 Father filed a custody application.  In 2009, the trial court issued an oral ruling including custody and visitation orders, providing joint legal custody with physical custody and final decision-making authority to Mother and visitation rights to Father.  Father was found to have an earning capacity of $200k despite his claims that he was earning only $100k, and Mother an earning capacity of $20k despite her being unemployed.  Father was ordered to pay $528/week child support and various expenses in accordance with the guidelines and, in the same apportionment as the guideline expenses, 72% of reasonable extracurricular expenses.


Father filed a motion for modification in 2021, requesting that the court modify the percentage allocation for extracurricular activities, alleging that his earning capacity from the 2009 decision is more than double his actual income, and alleging that Mother was unilaterally signing the children up for activities he could not afford.  Father did not allege that such division of extracurricular activities constituted a deviation from the guidelines and should be modified on that basis.


In 2022 the trial court (Hon. Winslow) held a remote hearing on the motion.  The trial court indicated that extracurricular activities “are not regular child support, they are a deviation from the child support guidelines and the court is required to find a reason for the deviation …” The trial court issued an oral ruling granting the motion for modification as to the extracurricular activities, finding that the children do not have extraordinary expenses warranting deviation from the guidelines and eliminating the requirement for a contribution.  The trial court subsequently issued a memorandum of decision expanding its reasoning, stating that, in the absence of an agreement of the parties, the trial court must find a basis for deviation in order to require contribution to extra-curricular activities, and that it was appropriate to modify based on a lack of basis for such deviation.  The trial court found that Mother had been using her decision-making and the existing orders as a means of “revenge.” The trial court made no finding as to a change in either party’s earning capacity.


Mother appealed, contending that there had been no substantial change in circumstances and that the trial court had based its decision on irrelevant, nonfinancial factors.


The Appellate Court articulated the abuse of discretion standard as well as the fact that plenary review applies to the correct standard of law and the application of child support guidelines.  The Appellate Court noted the two bases for modifying a child support order: (1) a substantial change in circumstances, or (2) a showing that a final order deviates from the guidelines without the requisite findings.”


The Appellate Court held that the trial court exceeded its authority in modifying the order regarding extracurricular activities because it based its decision on a ground that was not contained in Father’s motion for modification.  Reliance of the trial court on a ground not raised in a motion to modify constitutes abuse of discretion absent amendment to the motion.   Father had not pled and did not raise the issue of the original orders being a deviation from the guidelines, and he himself had requested a modification to a 50-50 division of such costs.


Having already established a basis for remand, the Appellate Court moved in a different direction and set forth its disagreement with the trial court’s conclusion that the extracurricular activities order constituted a deviation from the guidelines.  It cited Powers v. Hiranandani, 197 Conn. App. 384 (2020) for the principle that the court may order payment of extracurricular activities pursuant to § 46b-56, rather than § 46b-215b.  The Appellate Court found that the original order did not deviate from the guidelines in its $528/week child support award, and ordered division of extracurricular activities completely separately from the guideline award pursuant to § 46b-56.  (Side note: so far as I can tell, nobody involved in this argument or decision raised the fact that the original order was, by its very definition, a deviation from the guidelines because the court had assigned each party an earning capacity, which is in and of itself a deviation criteria, but that is of little import if extracurriculars can be divided separately from the guideline considerations.)


The Appellate Court stated that the guidelines address only “basic” child support obligations.  “Because the basic child support obligation as set forth in the child support guidelines does not encompass the expenses for extracurricular activities, imposing an order to account for those expenses is not inconsistent with, and does not deviate from, the presumptive amount under those guidelines. See Maturo v. Maturo, supra, 296 Conn. 107 (differentiating between “the basic child support obligation” and “additional support obligations imposed on the noncustodial parent for education, health care, recreation, insurance and other matters”


In my view, this analysis by the Appellate Court is both entirely dicta (the holding that the modification was not based on any ground in Father’s motion could have ended the analysis without any further analysis) and, more problematically, effectively creates an entire second basis for financial support for children that is separate from the scope and analysis of the child support obligation.  According to this decision, you can have different or additional financial orders beyond the scope of the presumptive guidelines by deviating based on allowable criteria, and you can also simply look to § 46b-56 for division of financial obligations that are not “basic” aspects of supporting a child, such as extracurricular activities (and once the door is opened, who knows what else?).  And, of course, you can also have a separate analysis of a presumptive range of support for high-income families per the Maturo/Misthopolous line of cases.  This conundrum already existed, because the Appellate Court pointed to a long litany of decisions where the Appellate and Supreme Courts have touched on cases which had divisions of extracurricular costs.


The takeaway is, a trial court may order division of extra-curricular expenses (and maybe other costs not written anywhere in a statute?) as it sees fit, without finding a deviation or the parties being above-guideline, by citing to § 46b-56 and entering the order separately from the child support guideline findings.  In some ways, this case changes nothing, because trial courts have regularly issued orders dividing extra-curricular costs, as the decision points out.  It provides a specific basis to legitimize such awards however, and possibly builds some foundation for other ways to go around the guidelines.


The Judgment was reversed and the case remanded to reconsider the motion to modify in accordance with the opinion.


Judge Clark concurred with the decision but disagreed with the notion of a “separate order” as a basis for the extra-curricular activity award.  Under Judge Clark’s analysis, the extra-curricular order constituted a deviation, despite the trial court’s failure to state as much when entering the original orders, and it subject to modification on that basis if that basis had been pled.  Judge Clark’s analysis, if it were the majority, would provide a much more straightforward way to handle such divisions in future orders which appears more consistent with the statutes and regulations: namely, division of extracurricular costs could be accomplished by means of a deviation, not by a new form of “separate order” independent of the guideline analysis.

Scope of remand: Ostapowicz v. Wisniewski, 222 Conn. App. 847 (2023)

Scope of remand: Ostapowicz v. Wisniewski, 222 Conn. App. 847 (2023)

Ostapowicz v. Wisniewski, 222 Conn. App. 847 (2023) (scope of remand)

Officially released December 19, 2023.

In Short: a decision about the scope of remand, which is governed by plenary review.


The parties were married in 2006.  Wife filed for divorce in 2017.  The trial court (Judge Caron presiding) issued a memorandum of decision dissolving the marriage in 2019.  A prior appeal resulted in a remand to address an apparent conflict between an order assigning payment of a home equity line of credit on which attorney’s fees had been incurred and an order that each party pay his/her own attorney’s fees.


After a proposed order by the trial court, objection, and a further hearing, the trial court amended its orders only to explain that in its original order it had intended that each party be responsible for his/her own counsel fees above and beyond those already paid on the home equity line of credit, and that no practical change would be effectuated.  Wife appealed again, arguing that the trial court failed to comply with the Appellate Court’s prior orders on remand.


The Appellate Court noted that the scope of remand is a matter of law subject to plenary review.  The Appellate Court indicated that the remand was with direction “to resolve the inconsistency.” The Appellate Court found that the trial court did resolve the inconsistency, just not in the way Wife wanted it resolved.  The Judgment was affirmed.

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