Post-majority support for disabled child per § 46b-84(c): Gainty v. Infantino, 222 Conn. App. 785 (2023)

Post-majority support for disabled child per § 46b-84(c): Gainty v. Infantino, 222 Conn. App. 785 (2023)

Gainty v. Infantino, 222 Conn. App. 785 (2023) (post-majority support for disabled child per § 46b-84(c))

 

Officially released December 12, 2023

 

In Short: The trial court’s decision to award post-majority support pursuant to § 46b-84(c), not based on the child support guidelines, and including residential educational facilities, was upheld.  Father was a very unsympathetic litigant and did a terrible job preserving his arguments for appeal.

 

A Judgment of paternity entered in 2001 for the parties’ two minor children in concert with an order of $250/week child support.  Fifteen years of post-judgment litigation followed over Father’s non-payment of support.  Father had been found in contempt five times, purges had been established, and four capiases issued for failure to appear.

 

In 2019, Mother filed a motion for “child support, education support, medical, dependent care” through age twenty-one based on a qualifying disability.  Mother filed an additional motion seeking modification of support through age twenty-one.

 

The Trial Court (Hon. Epstein presiding) held a hearing in 2022 at which the Court understood that Father contested the existence of a disability and whether the child had resided with Mother during the time period at issue.

 

Mother presented expert testimony of a clinical psychologist who had treated the child since 2006 and testified about several mental disabilities which impeded the child’s ability to live independently or obtain a full-time job.  Mother also presented the expert testimony of a neuropsychologist regarding two evaluations.  The evidence of disability was essentially uncontroverted and compelling.  Mother testified that she was employed as a special education teacher earning $75k/year.  Mother testified about expenses incurred including a residential educational and treatment facility and, briefly, a special education college.  Father testified that he was self-employed in landscape construction earning $165k/year.

 

The trial court then ordered that Father comply with standing discovery requests and that both parties file updated financial affidavits.  Mother was ordered to submit proposed orders with specific monetary amounts and Father with whether he agrees or disagrees with each amount.  Mother submitted proposed orders of $300/week child support for the three year period in question.  Father did not comply with the discovery orders and filed no post-trial documents prior to the decision issuing.

 

The trial court found that the child was disabled within C.G.S. § 46b-84(c).  The trial court found that Father had essentially no involvement with the child for many years and was in arrears on premajority support.  The trial court found that the child had attended Franklin Academy in East Haddam and, for a short time, Landmark College in Putney, VT.  Both are residential facilities, but the court found that the child had always resided with Mother.  The trial court adopted Mother’s proposed orders, amounting to $31,200 for post-majority support, and $44,651 for Father’s share of certain medical and special schooling expenses.

 

Father appealed arguing that the trial court (1) improperly ordered him to reimburse 50% of medical and special schooling expenditures, and (2) exceeded its authority in issuing its support order.  Mother filed a motion for appellate counsel fees which was granted in the amount of $10,000.  Father amended his appeal to allege that the trial court (3) abused its discretion in awarding appellate attorney’s fees.

 

The Appellate Court first addressed Father’s claim that the trial court abused its discretion by ordering reimbursement of expenses twice denied by the court, specifically that reimbursement for Landmark College and Franklin Academy was barred by res judicata and collateral estoppel.  Father alleged that a prior court had determined that Landmark College’s costs were outside the scope of the statute because the initiation of this case predates the effective date of enactment of § 46b-56c.  The Appellate Court determined that this claim was not preserved for appeal.  Father failed to raise these arguments at any point during the proceeding.  Further, the prior order denying Landmark College as beyond the scope of the statute pertained to § 46b-56c, not § 46b-84(c).

 

Father’s second claim was that the trial court modified the child support orders without considering the child support guidelines or statutory criteria.  § 46b-84(c) specifically states that the child support guidelines do not apply.  Father failed to raise the claim that the post-majority order exceeded the premajority order and did not preserve it for appeal.  Father further argued that the trial court failed to consider his “other qualified dependents.” The Appellate Court noted that Father failed to provide any evidence of the needs of his other children, that he failed to file an updated financial affidavit when ordered to do so, and found nothing clearly erroneous about the order in light of the findings made by the trial court as to Father’s finances.

 

Father’s final claim on appeal related to the award of counsel fees to defend the appeal pursuant to § 46b-62.  The trial court stated that it considered all the relevant statutory criteria and that such fee award was necessary not to undermine the court’s decision.  The Appellate Court made short work of Father’s arguments, finding no abuse of discretion in light of the trial court’s factual and credibility findings.

 

The Judgment was affirmed.

Interpretation of stipulation; concierge medical fee; § 52-192a offer to compromise: Graham v. Graham. 222 Conn. App. 560 (2023)

Interpretation of stipulation; concierge medical fee; § 52-192a offer to compromise: Graham v. Graham. 222 Conn. App. 560 (2023)

Graham v. Graham. 222 Conn. App. 560 (2023) (interpretation of stipulation; concierge medical fee; § 52-192a offer to compromise)

Officially released November 28, 2023

In Short:
1. The trial court properly interpreted a post-judgment stipulation as fixing a buyout of an unallocated order of alimony and child support by replacing the original judgment with regard to termination upon remarriage;
2. A concierge physician fee constituted an unreimbursed medical expense, not an “access” fee”; and
3. C.G.S. § 52-192a regarding offers to compromise does not apply to dissolution of marriage actions.

The Grahams were divorced on April 7, 2011 via separation agreement. They had two minor children at time of dissolution. The separation agreement provided that Husband would pay unallocated alimony and child support based on a formula for a non-modifiable term of nine years and certain unreimbursed expenses.

In 2019 the parties entered into a postjudgment stipulation that (1) terminated Husband’s unallocated obligations subject to his making certain fixed and scheduled payments, and (2) obligated Husband to pay 100% of the children’s unreimbursed medical expenses. Except as provided in the stipulation, the separation agreement remained in full force and effect.

In 2020 Wife filed a motion for contempt alleging that Husband willfully violated the 2019 stipulation. Husband’s attorney had stated that Husband would not be making payments outlined in the 2019 stipulation totaling $504,000 on the basis that Husband’s alimony obligation had terminated due to Wife’s remarriage. Wife filed a second motion for contempt alleging that Husband violated the stipulation by failing to reimburse a $5,000 physician concierge fee for the eldest daughter. Wife filed an offer of compromise pursuant to C.G.S. § 52-192a and Practice Book § 17-14 offering to resolve her claim against Husband for alimony.

In 2022 the trial court held a hearing on Wife’s motions and issued a memorandum of decision granting Wife’s two motions for contempt. The trial court found that Husband had owed $504,000, that he wrongfully detained the money and ordered 5% simple interest pursuant to C.G.S. § 37-3a. The trial court further found Husband willfully violated the order in failing to reimburse the $5,000 concierge physician fee. The trial court awarded Wife $35k in counsel fees (including a second separate award of fees from a new motion for counsel fees covering, inter alia, posttrial briefs). The trial court dismissed Wife’s offer of compromise. Husband appealed and Wife cross appealed.

Husband’s first argument on appeal was that the trial court improperly found him in contempt. The Appellate Court noted that the issue of whether the underlying order was sufficiently clear and unambiguous to support a judgment of contempt is subject to de novo review, whereas willfulness is governed by the abuse of discretion standard. It further articulated that the intent of the parties for a contract is interpreted “in light of the situation of the parties and the circumstances connected with the transaction…. To be ascertained by a fair and reasonable construction of the written words … accorded its common, natural and ordinary meaning and usage where it can be sensibly applied …” and so forth regarding contract principles. It articulated the standard of clear and convincing evidence and the burden on the moving party.

The trial court had found that the stipulation was reasonably susceptible to only one meaning, that it was to pay the remaining obligation as a lump sum certain to be paid over a specific time period, replacing the portion of the judgment that would terminate for remarriage. The trial court reasoned that the parties omitted language from the stipulation regarding termination, much of the obligation accrued prior to the stipulation, everyone knew about the remarriage intention when the stipulation was negotiated, if the original terms as to termination were to govern there was no need for the stipulation, and that Husband had the means and willfully chose not to pay.

Husband argued that, because the termination of alimony was “subject to” his making certain payments, the original language regarding termination upon remarriage still governed prior to his making those payments. This contention was belied by the canvass of the parties when entering the stipulation. The Appellate Court found that the stipulation was clear and unambiguous under the circumstances surrounding it and the trial court did not err by finding Husband’s failure to pay was willful.

Husband’s second argument on appeal was that the trial court erred by ordering him to pay 100% of the concierge physician fee, that it was an access fee, not a medical expense. The trial court had found that the fee was part of access to the doctor’s practice. The Appellate Court noted that the term “medical expense” as used in dissolution decrees must be interpreted broadly. The Appellate Court found no abuse of discretion in determining that this expense qualified.

Husband’s third and final argument on appeal was that the trial court erred in awarding the second round of counsel fees citing res judicata and collateral estoppel, which he raised for the first time on appeal and which the Appellate Court determined was inadequately briefed.

Wife’s cross appeal claimed that the trial court improperly dismissed her offer of compromise, arguing that the court erred in finding that C.G.S. § 52-192a did not apply to her claim because it was not based on contract or did not seek money damages. The Appellate Court found that while a dissolution action is a civil action, it is not one based on contract or that seeks money damages. Dissolution actions are equitable in nature and the Appellate Court refused to extend the statute to cover contempt claims as “actions” in and of themselves based in contract. The Appellate Court found that C.G.S. § 52-192a does not apply to marital dissolution cases (but reversed and remanded with direction to strike the offer of compromise rather than dismiss).

The Judgment was affirmed other than to correct the form of rejection of the offer to compromise to strike instead of dismiss.

Interpretation of contract; UConn Cap & § 46b56c: Simpson. v. Simpson. 222 Conn. App. 466 (2023)

Interpretation of contract; UConn Cap & § 46b56c: Simpson. v. Simpson. 222 Conn. App. 466 (2023)

Simpson. v. Simpson. 222 Conn. App. 466 (2023) (interpretation of contract; UConn Cap & § 46b56c)

Officially released November 28, 2023

 

In Short: (1) The Appellate Court found that an agreement capping alimony and support payments on $700k of gross earned income was clear and unambiguous on its face, and (2) agreement to send a child to a college where tuition exceeds the UConn Cap is not the same as agreement to exceed the UConn Cap.

 

Judge Prescott issued the decision with which Judge Clark concurred.  Judge Alvord issued a concurrence and dissent.

 

The parties were divorced by separation agreement and an addendum thereto in 2013, with three provisions relevant to this appeal:

  1. Child Support: the separation agreement provided that Wife was earning $135k base income and Husband $299k base income annually, and awarded child support of $420/week. Husband was to pay additional child support, starting in 2016, in the amount of 9% of his gross bonus/profit sharing as long as he was obligated to pay child support for the children, and 6% of such when only one child remained eligible.  The gross bonus/profit-sharing was calculated to include total payments Husband received, less any portion that was part of his normal monthly draw and normal quarterly tax payment draw.  Husband’s obligations were capped such that no child support would be paid on gross earned income in excess of $700k per calendar year, including bonus/profit sharing.
  2. Alimony: the separation agreement provided that Husband would pay $3,500/month, reducing to $1,750/month upon sale of the marital home. Husband was to pay additional alimony starting in 2016 in the amount of 20% of his gross bonus/profit sharing.  The bonus/profit sharing and the cap were defined for alimony in the same manner as for child support above.
  3. The separation agreement provided that if Husband’s compensation package materially changed, including base income or bonus/profit sharing structures, the parties would renegotiate the alimony and tax provisions to carry out the intentions of the agreement. The provision further clarified that the intention behind the division of income on the base salary/draw was to equalize the net income of the parties from those sources.

 

In 2018 Wife filed a motion for order regarding college education costs, a motion for contempt claiming Husband had violated the terms regarding child support and alimony, and a motion to modify child support and alimony alleging a substantial change in Husband’s compensation package.  Husband filed objections and a motion to decrease child support based on one child aging out of eligibility for support.

 

The trial court (M. Murphy, J.) held a five-day hearing at which both parties and Husband’s accountant testified.  The trial court issued a memorandum of decision finding the following facts and rendering the following orders:

  1. At time of divorce Husband was an equity partner at Shipman & Goodwin earning a base salary of $298,686. At the time of the hearing Husband was a shareholder with the law firm of Carlton Fields and his income in 2019 was $1m.
  2. Husband’s gross bonus was $360k in 2015, $458k in 2016, $731k in 2017 and $627k in 2018.
  3. Each bonus was earned during the calendar year prior to the January in which it was paid.
  4. Husband failed to provide credible evidence as to what portion, if any, of those 2016-2019 bonuses should be allocated to his monthly base draw and so determined that the entire amount of the bonuses would be eligible for the percentage additional child support and alimony.
  5. The relevant provisions of the Judgment were ambiguous, Husband was not in contempt, and extrinsic evidence was necessary regarding the parties’ intentions.
  6. The $700k cap effectively established a bonus cap of $401k, based on the difference between Husband’s base salary at time of Judgment and $700k. This interpretation permitted consideration of Husband’s income beyond $700k per year to extent that up to $401k per year of bonus exceeded that number, citing the intentionality language of the agreement and the language regarding renegotiation of the agreement.
  7. A substantial remedial order for a $332k arrearage was entered with regard to the additional child support and alimony payments.
  8. Despite acknowledging the substantial increase in Husband’s compensation, the motions for modification were denied.
  9. Husband was ordered to pay 90% and Wife 10% of the college costs, which were found not to be capped by statute, and which order was not made retroactive.
  10. Husband was ordered to pay $58k of legal fees pursuant to C.G.S. § 46b-62.

 

The trial court articulated various aspects of its decision.

 

Husband claimed that the trial court improperly (1) modified its original decision by way of a post appeal articulation, (2) construed provisions of the parties’ separation agreement regarding child support and alimony, (3) awarded counsel fees, and (4) exceeded the statutory cap for post-secondary education set forth in C.G.S. § 46b-56c.

 

Wife cross appealed arguing that the trial court improperly denied her motion for modification of alimony and child support.

 

The Appellate Court first addressed Husband’s claim that the trial court improperly interpreted the separation agreement, specifically arguing that the $700k cap was clear and unambiguous.  The Appellate Court applied plenary review to the issue of whether the contract was clear and unambiguous and cited hornbook law regarding interpretation of contracts (“a fair and reasonable construction of the written words … common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract … will not torture words to import ambiguity … any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms …”). The separation agreement specifically applied the $700k cap to Husband’s gross earned income, not his annual bonus.  The Appellate Court found this to be clear an unambiguous as a cap on Husband’s total gross income for purposes of any percentage payment.  The Judgment regarding the contempt motion was reversed only with regard to its remedial orders.  Because of this reversal, the Appellate Court declined to resolve the claim regarding articulation.

 

The Appellate Court next addressed Husband’s challenge to the award of counsel fees.  The trial court made such award pursuant to C.G.S. § 46b-62.  The Appellate Court determined that because the Judgment was reversed as to financial orders, the issue of counsel fees was intertwined with such orders and must be reconsidered on remand.

 

The Appellate Court then addressed Husband’s claim that the trial court improperly exceeded the cap of C.G.S. § 46b-56c.  Husband argued that there was no evidence in the record to support the trial court’s finding that the parties agreed to exceed the cap.  The parties had agreed that the child would attend Clemson, and the cost exceeded the UConn cap.  Husband had paid all tuition, room and board for the first two years.  The trial court interpreted the agreement to send the child to a school where tuition exceeded the cap as agreement to exceed the cap, despite Wife herself testifying that she wanted the UConn cap followed.  The Appellate Court applied the clearly erroneous standard of review and reversed the trial court’s decision.  Agreement to attend an expensive institution does not amount to agreement to exceed the statutory limits for required payment.  The issue of college costs was remanded for a new hearing.

 

Lastly, the Appellate Court considered Wife’s cross appeal.  The trial court had articulated that it denied the motion for modification because of the mosaic it created to provide equity to Wife.  Thus, the Appellate Court reasoned that this issue must also be reversed and remanded in connection with the reversal of the remedial orders.

 

In sum, the Judgment was reversed as to the remedial orders and finding that the UConn cap did not apply, and remanded for a new hearing on all pending motions on that basis.

 

Judge Alvord dissented regarding the issue of ambiguity of the separation agreement.  She would have remanded for further proceedings to permit extrinsic evidence as to the parties’ intent, which she indicated was missing.  Judge Alvord stated that Wife set forth a plausible alternative interpretation of the separation agreement given the facts and circumstances of the case, relying on the fact that Husband’s base income substantially exceeded the cap on support under the Judgment.  In my analysis, the facts Judge Alvord cites are reasons why Wife could prevail in a modification, but they are not a basis for finding ambiguity in the original contract, which appears clear on its face as to the $700k cap.

LKM Receives First Tier Ranking in Best Law Firms® 14th Edition

LKM Receives First Tier Ranking in Best Law Firms® 14th Edition

Louden, Katz & McGrath has been named a Tier 1 firm in Hartford for Family Law Practice in the 2024 edition of Best Law Firms®. This is the fifth consecutive year LKM has been named to this Best Firms list.

Law firms included in the publication are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must first have a lawyer recognized in The Best Lawyers in America®, which recognizes 6% of lawyers practicing in the United States. Louden, Katz & McGrath has had at least one attorney recognized with The Best Lawyers in America® distinction every year since 1983. Recognition by Best Lawyers is based entirely on peer review.

“We take immense pride in assisting our clients through significant life transitions related to their marriages and children,” said David McGrath, Managing Partner. “These rankings reflect commitment by the lawyers and staff at the Firm who are providing creative, responsive, and empathetic solutions to our clients’ challenges. Being consistently acknowledged for this dedication by our peers and a reputable national organization like Best Lawyers is an honor.”

The 2024 “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. Receiving a tier designation reflects the high level of respect a firm has earned among clients and other leading lawyers in the same communities and the same practice areas based on abilities, professionalism, and integrity.

To become eligible for a “Best Law Firms” ranking, at least one lawyer at the firm must be recognized in the latest edition of The Best Lawyers in America®, an exclusive award presented to only the top 5% of lawyers in the United States. The Best Lawyers research team incorporates 13.7 million evaluations of more than 125,000 leading lawyers from more than 23,000 firms and conducts hundreds of interviews with law firm leaders.

“These rankings – our first independently published rankings and 14th edition – serve as a true North Star for the industry,” said Best Lawyers CEO Phillip Greer. “We know that the legal profession–like so many industries today–is undergoing a transformation led by proliferating technology, global demands and evolving social norms. Through these rankings, we can not only identify the gamechangers for law firms today, but also focus on key issues such as integrating AI and addressing DE&I that are positioning them and the profession for future success.”

Louden, Katz & McGrath is an award-winning Connecticut law firm, focusing its practice on family law and providing its clients with representation and advice in litigated, collaborative, and mediated divorces, as well as related legal issues such as custody, child support, and prenuptial agreements. The firm has been named one of the “Best Law Firms in Connecticut” by U.S. News & World Report annually since 2018. Louden, Katz & McGrath is located in Hartford, on the Hartford/West Hartford line. To schedule a consultation regarding your family law matter, call 860-231-7150.

Consideration of fault was not abuse of discretion; trial court considered all statutory criteria: Walker v. Walker, 222 Conn. App. 192 (2023)

Consideration of fault was not abuse of discretion; trial court considered all statutory criteria: Walker v. Walker, 222 Conn. App. 192 (2023)

Walker v. Walker, 222 Conn. App. 192 (2023) (consideration of fault was not abuse of discretion; trial court considered all statutory criteria)

Officially released October 31, 2023

In Short: the trial court did not err in considering all the statutory criteria, including fault, in entering its financial orders, nor was there evidence that the trial court abused its discretion in its consideration and analysis of fault.

The parties married in 1993 and had three children, all of whom were adults by the time of the divorce.  The matter was tried before Judge Moukawsher.

The trial court found the following facts: Wife was fifty and Husband sixty years old.  The parties resided in a home purchased for Wife by her father, of which Wife owned 74.5% and Husband owned 25.5%.  The parties remortgaged the marital home and used the proceeds to purchase Husband’s sister’s interest in an inherited building and family business, a custom frame shop.  A major cause of the breakdown of the marriage was Husband’s violence toward Wife and Husband’s extramarital affairs.  Wife had no job skills outside of her work at Husband’s family business and limited work in retail.  Husband’s annual business income is approximately $100,000.

The trial court awarded the marital home to Wife, which was worth $800,000 and had a mortgage of $440,000.  The trial court awarded the custom frame shop and building to Husband, which was worth $600,000, had no mortgage, and had rental income and potential for more.  Husband was ordered to pay Wife $235,000, the amount by which the marital home had been encumbered to purchase Husband’s sister’s interest in the building.  (For those who want the quick math, Wife was awarded net value of $595,000 and Husband $365,000 per the trial court’s findings).  Husband was ordered to pay $1,000 per month alimony for ten years (one third of the length of the marriage, but continuing until Husband turns 70).  Both parties were awarded the extent of their respective interests that were received from family or inheritance.

Husband claimed on appeal that the trial court (1) improperly failed to consider all the relevant statutory criteria set forth in § 46b-81, and (2) applied an unreasonable amount of weight to Husband’s fault in the breakdown of the marriage in fashioning awards of property division and alimony.  (Husband abandoned claims initially raised on appeal regarding double-dipping, third party testimony weight, and restriction of time allocated for trial).

As to Husband’s first claim, the trial court expressly stated that it “considered all” of the statutory criteria of § 46b-81.  The Appellate Court held that the trial court was therefore presumed to have done so unless contradicted by the record, and nothing contrary appears in the record.  The Appellate Court found that the trial court provided a well-reasoned analysis for the disparity in awards which was based on the facts, including origin of the assets, contributions of the parties, and needs of the parties.

Husband argued on his second claim that, due to the fact that the dissolution was based on the ground of irretrievable breakdown rather than intolerable cruelty (which ground was also alleged in the amended complaint) the trial court assigned his fault disproportionate weight.  The Appellate Court noted the trial court’s findings that Husband was more unfaithful and more violent than Wife, that Husband admitted his violence, and that Husband was deemed less credible.  The Appellate Court also noted the trial court’s emphasis on the financial circumstances of the parties in fashioning its award.  The Appellate Court found it unnecessary to discern precisely how much weight the trial court placed on fault, as it was one factor among all of them and the trial court is afforded wide latitude.  Dissolution based on irretrievable breakdown is not inconsistent with analysis of the cause for the breakdown as mandated by statute.

The Judgment was affirmed.

Can one spouse become responsible for the other spouse’s credit card debt during a divorce?


Can one spouse become responsible for the other spouse’s credit card debt during a divorce?


Given the current economic landscape, a question that has frequently come up is: Can one spouse become responsible for the other spouse’s credit card debt at any time during a divorce?

The short answer: being married does not permit a creditor of one spouse to seek payment from the other spouse. However, one spouse can be ordered by the family court to pay some or all of the debts of the other spouse.

The longer answer is, of course, “it depends.” Under Connecticut Law, specifically §46b-81, as part of property distribution, the court is vested with the authority at the time of the divorce to order either party to pay any portion of the debts owed by the other spouse, and to provide a recourse through the family court in the event of failure to pay what was ordered.
The court’s orders regarding debts will depend on the source and amounts of debts, how, when, and why they were accrued, as well as the overall financial mosaic that makes up the totality of the parties’ finances.

During the divorce process (“pendente lite”) the court is capable of entering orders that either make payments on specific expenses or liabilities, in order to preserve the marital estate from wasting or dissipation.  The orders will depend on once again on the “mosaic” of the finances (including temporary orders of alimony or child support) and the immediate need of the respective parties as well as the need to avoid wasting assets.

At LKM we pride ourselves on our depth of litigation experience, and 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.

If your divorce includes a difficult or complex interpersonal relationship and complex financial settlements, be sure to seek out an experienced family law attorney, as every case is different. Contact us today for a consultation.

LKM Attorneys Named to Thomson Reuters Super Lawyers® 2023

LKM Attorneys Named to Thomson Reuters Super Lawyers® 2023

LKM is pleased to announce that, once again, partners Bruce Louden, Robert Katz, and David McGrath were selected for inclusion in 2023 Connecticut Super Lawyers®, and associate attorney Kayleigh Bowman was named a Rising Star.

Super Lawyers ®, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The result is a credible, comprehensive, and diverse listing of exceptional attorneys.

Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers ® to receive this honor.

The Rising Stars selection process is identical to the Super Lawyers ® process, with one exception: to be eligible, a candidate must be either age 40 or younger or in practice for 10 years or less. Only 2.5 percent of Connecticut attorneys are selected for the Rising Stars list.

Super Lawyers® can be found online, where lawyers can be searched by practice area and location.

Bruce Louden, Bob Katz, and David McGrath named in Best Lawyers in America 2024

Bruce Louden, Bob Katz, and David McGrath named in Best Lawyers in America 2024

 

Once again, all three partners of Louden, Katz & McGrath have been recognized for their legal excellence in the 30th Edition of The Best Lawyers in America©.

This is the fourth time Attorney McGrath and sixth time Attorney Katz have received this recognition. Attorney Louden has been recognized by Best Lawyers in every edition since 1983. Additionally, last year Attorney Katz was named the Best Lawyers¨ 2023 Family Law “Lawyer of the Year” for the Hartford metro area. Recognition by Best Lawyers is based entirely on peer review.

“We have always taken great pride in the work we do for our clients as they undergo major life transitions regarding their marriages and children,” said Bob Katz. “To receive this accolade from our colleagues in matrimonial law is an honor.”

Louden, Katz & McGrath is an award-winning Connecticut law firm, focusing its practice on family law and providing its clients with representation and advice in litigated, collaborative, and mediated divorces, as well as related legal issues such as custody, child support, and prenuptial agreements. The firm has been named one of the “Best Law Firms in Connecticut” by U.S. News & World Report annually since 2018. Louden, Katz & McGrath is located in Hartford, on the Hartford/West Hartford line. To schedule a consultation regarding your family law matter, call 860-231-7150.

Ketubah & prenuptial agreement; U.S. Const. 1st Amendment: Tilsen v. Benson, 347 Conn. 758 (2023)

Ketubah & prenuptial agreement; U.S. Const. 1st Amendment: Tilsen v. Benson, 347 Conn. 758 (2023)

Tilsen v. Benson, 347 Conn. 758 (2023) (ketubah & prenuptial agreement; U.S. Const. 1st Amendment)

 

Officially released September 5, 2023

In Short: (1) A prenuptial agreement that directs the court to enter financial orders based on religious doctrine, rather than expressing the intended financial orders itself, will not be enforced for violation of the establishment clause of the First Amendment.  (Those seeking to compel a “get”* based on a ketubah may be out of luck in future in Connecticut and would be better served by a secular prenup.)  (2) The trial court was well within its discretion to find an earning capacity based on fifty-nine-year-old Husband’s last contract where he caused its early termination and sought no further employment.

The parties were married in 1989 in Pennsylvania, though they resided in Israel at the time.  The wedding ceremony was conducted in accordance with Jewish tradition, including the signing of a traditional Jewish marriage contract written in Hebrew and Aramaic known as a ketubah.  This ketubah provided that the parties agreed to “divorce … according to Torah law as is the manner of Jewish people….” The ketubah itself was devoid of financial specifics in the event of divorce.

The parties then moved to the United States for Husband’s career opportunities as a conservative rabbi.  Husband served as the rabbi of a synagogue in New Haven for twenty-eight years, until his employment contract was not renewed during the pendency of the divorce.  Husband renegotiated a 10-year contract which would have run through 2025 (ordinarily subject to financial adjustment for the remaining five years) in exchange for a new 1-year contract, which was then not renewed because of disagreements between Husband and the Synagogue over issues arising from Covid-19.  Husband had not thereafter searched for new employment and did not intend to seek further employment, despite being only fifty-nine years old.

Wife had worked as an attorney, a paralegal and a non-profit executive, but had not worked since 2015 despite significant efforts to find employment.  She was sixty-one at time of divorce.  She had been the primary caregiver to the parties’ four adult children and supported Husband’s career by hosting dinners, social events and certain services for the synagogue.

Husband brought the divorce action in 2018, seeking, inter alia, enforcement of the parties’ ketubah as a premarital agreement, which he asserted would equalize most marital property and prohibit alimony.  Wife filed an objection to such enforcement.  The parties submitted conflicting affidavits from rabbis about the application of Torah law to alimony and property division.

Judge Klau held a hearing and denied the motion to enforce the ketubah, effectively bifurcating the prenuptial portion of the proceedings.  The trial court determined that enforcement of the ketubah would require it to choose between competing religious interpretations of Torah law which is precluded under the First Amendment and denied Husband’s motion on that basis.

The case was then tried before Judge Goodrow over multiple days subject with substantial delay due to Covid-19.  The trial court found that both parties were unemployed at time of trial, that Husband’s gross annual earning capacity was $202k consistent with his final compensation from the synagogue, and that Wife’s gross weekly earning capacity was $480 based on full-time employment at $12/hour.  The trial court found that Husband’s conduct demonstrated an effort to reduce his financial liability to Wife in the divorce.  The trial court ordered, in relevant part, Husband to pay alimony of $5,000/month for fifteen years and provided Wife a safe harbor of $50,000.  The trial court ordered Husband to pay 25% of the net distributions, including from sale, from a real estate interests established by his father and uncle.

Husband appealed arguing that the trial court (1) improperly denied his motion to enforce the ketubah, and (2) abused its discretion in fashioning financial orders.  The appeal was transferred directly to the Connecticut Supreme Court.

As to Husband’s first claim on appeal, he argued that enforcement would (A) not violate the establishment clause of the First Amendment because it simply required enforcement of a choice of law provision, and (B) failure to enforce would violate his rights under the free exercise clause of the First Amendment.  The Supreme Court applied plenary review.

Husband argued that Jewish law governing marriage is secular in nature, and thus interpretation thereof was merely a choice of law provision, noting that a prior superior court decision imposed a monetary provision of a ketubah until the Wife was granted a get. In Avitzur v. Avitzur, 58 N.Y.2d 108, cert. denied, 464 U.S. 817 (1983), the high court in New York had similarly required a Husband to appear before a religious tribunal to permit a get pursuant to a ketubah, finding that the enforcement was simply to perform a secular obligation to which he had contractually bound himself.

Our Supreme Court found the dissenting opinion in Avitzur more persuasive, finding it impossible for a court to disentangle secular from religious considerations in adjudicating this dispute.  Our Supreme Court explicitly disagreed with a similar decision in an Illinois Appellate decision, In re Marriage of Goldman, 196 Ill. App. 3d 785, appeal denied, 132 Ill. 2d 544 (1990) where the ketubah made no specific reference to dissolution, but the trial court found that the parties intended to govern and the court relied on the testimony of rabbis that the ketubah required a get and that such process was secular as a matter of religious law.  Our Supreme Court held that Husband’s desired relief would violate the establishment clause under the neutral principles of law doctrine.  Because the ketubah was silent as to each spouse’s financial obligations in the event of a divorce, the trial court would be left to determine the intent from Jewish religious law.

Our Supreme Court reviewed Husband’s unpreserved claim that failure to enforce would violate his rights under the free exercise clause pursuant to Golding review, but found that Husband’s effort failed the third prong of Golding, based on the absence of a Constitutional violation.  The free exercise clause prohibits unequal treatment and subjects to strict scrutiny laws that target the religious based on their status.  Our Supreme Court found that Husband was still free to contract in any way he saw fit for a prenuptial agreement provided that such agreement was worded in such manner as could pass the neutral principles of law doctrine.

In summary, regarding the religious issue: (1) The ketubah was silent as to the actual financial terms necessary to provide the enforcement Husband sought, and instead directed the court to figure out the financial terms of the prenuptial agreement based on Jewish law, which is not a foreign secular jurisdiction, but a religion.  This was prohibited by the Establishment Clause and not salvaged by Husband’s argument about the free exercise of religion.  (2) Although this case is not about a get, this opinion casts substantial doubt (if not sounding the death knell) on the ability of a trial court to require any future Husband to permit a get based on a ketubah.  Any religiously observant Jewish woman wishing to preserve her right to a get in a future divorce would be well-served to execute a secular prenuptial agreement explicitly requiring participation in a get in the event of a divorce.

As to Husband’s second claim on appeal, and his secular argument, our Supreme Court reviewed under the abuse of discretion and clearly erroneous standards.  Husband challenged clearly erroneous factual findings and abuse of discretion as to the alimony and 25% distributions.

The Supreme Court (relatively easily under the facts cited above) found that the trial court properly exercised its discretion in finding earning capacities.  There was ample evidence that Husband’s efforts that resulted in termination of his employment were for advantage in the litigation, as were his cessation of efforts to find employment.  The president of the synagogue’s board testified that Husband sought the reduction in his contract term and efforts to retain him in his position.  Similarly, the findings about Wife’s lower earning capacity were grounded in factual findings regarding her difficulties in her career and efforts to find employment.  The trial court was within its rights to not credit various aspects of Husband’s vocational expert’s testimony as to Wife’s earning capacity.

Husband next argued that distributions from his real estate were “mere expectancies” and argued that the trial court failed to attach a present value to those distributions.  The parties had stipulated before trial that the interest was not transferable but that the trial court could make a determination about a portion to which Wife was entitled.  The Supreme Court found that the distribution order was consistent with the present division method of deferred distribution and the parties had agreed that the interest was marital property.

Finally, Husband argued that the alimony award was unduly punitive, failed to consider his lack of income and employability given his age, did not adequately explain or justify the fifteen-year duration, and erroneously was based on gross earning capacity rather than net income.  The Supreme Court noted that references to gross income by itself does not warrant reversal when there is ample evidence from which the court could have determined net income.  While the finding of earning capacity was expressed in gross income, its award supports the presumption that the trial court considered Husband’s net income.  The Supreme Court compared the factual findings and award with various other cases and found no abuse of discretion, also noting the modifiability of the award.

The Judgment was affirmed.

*A get is a Jewish religious divorce permitting remarriage under Jewish law

Incomplete evaluations at time of trial; no right to articulation: Anderson-Harris v. Harris 221 Conn. App. 222 (2023)

Incomplete evaluations at time of trial; no right to articulation: Anderson-Harris v. Harris 221 Conn. App. 222 (2023)

Anderson-Harris v. Harris 221 Conn. App. 222 (2023) (incomplete evaluations at time of trial; no right to articulation)

 

Officially released August 22, 2023

In Short: This case is a disaster of mental health, repetitive ex parte applications, and unsubstantiated repeated allegations of sexual abuse and obsession therewith to the detriment of the children. Its precedential value, if any, is that (1) a trial court may cancel evaluations rather than completing them before trial when circumstances call for such, and (2) there is no right to an articulation when the memorandum of decision is thorough.  Although this was unchallenged on appeal, it is also a reminder that the trial court may vest custody or parenting (including pendente lite) with a third party, when the need to do so is supported by the facts.

The parties were married in 2007 and had twins in 2013.  Wife was a stay-at-home mother and Husband worked outside the home.  The parties suffered marital strain from miscarriages and substantial financial insecurity to the point of food insecurity and eviction threats.  Wife suffered from substantial mental health issues and was diagnosed and treated for bipolar disorder, including inpatient treatment.  Wife’s mental health trajectory resulted in Husband changing jobs.  Wife did not follow treatment recommendations, began to accuse Husband of sexually abusing the children, and began taking the children to the casino so that she could gamble on a regular basis.

Wife filed for divorce in July 2020, and filed the first of many ex parte applications, alleging that Husband was a danger to the children and that sexual abuse occurred, which applications were all denied.  Wife began removing the children from school and “disappeared” with the children for one month without notifying Husband, during which time she lived in homeless shelters. The trial court ordered a comprehensive family relations evaluation and later entered an order canceling such evaluation after repetitive ex parte applications interfered with completing the evaluation.  A Guardian Ad Litem was appointed during the pendente lite period.  Both DCF and the police were involved with the family, resulting in no safety plan or substantiation nor any criminal charges.

The trial court held a hearing in March 2021 on all outstanding motions during which both parties and the GAL testified, resulting in a disturbing picture including Wife having an inappropriate and harmful obsession with the cleanliness of the children’s vaginas and Husband failing to take adequate steps to control the situation.  At the conclusion of the hearing, the trial court gave the parties the option of temporary custody being vested either with the paternal grandmother or DCF.  The trial court placed the children temporarily with the paternal grandmother, terminated the family relations referral, and ordered the parties and children to participate in a psychological evaluation.  The parties were unable to afford the evaluation and it was not completed.

Trial was scheduled to begin in July 2021.  Wife filed a motion to continue alleging failure to complete the psychological evaluations, which motion was denied.  The trial court offered Wife the option of a limited issue-focused family relations evaluation into whether she would be capable of accepting that Defendant was not a sexual predator, as a predicate to an order of joint custody.  The trial court then bifurcated the trial into two parts, dissolution of marriage and property division, and then custody and parenting.  Wife thereafter continued to make social media allegations regarding sexual abuse by Husband and revoked her authorizations to family relations for purposes of the evaluation.  Husband testified that Wife made numerous statements regarding her intention to disappear with the children.

The trial court thereafter issued a memorandum of decision on all aspects of the case dissolving the marriage and awarding sole legal and physical custody of the children to Husband.  Wife’s access was limited to two video meetings per week at consistent times and dates to be chosen by Husband.

Wife was ordered to pay $119/week child support based on an earning capacity of $18,000-$21,000/year based on historical earnings as a seamstress.  Husband was ordered to pay $1.00 per year alimony for five years and was awarded his retirement accounts free and clear of any claim as well as both cars (subject to large debts).  Husband was awarded some $2,750 in attorney and expert fees.

Wife appealed, arguing that (1) the trial court improperly rendered judgment of dissolution before court-ordered evaluations were completed, (2) the trial court abused its discretion in its financial orders including child support and alimony, and (3) the retirement of the trial judge rendered an inadequate record for review, necessitating a new trial.

As to Wife’s first claim on appeal regarding incomplete evaluations, CGS § 46b-7 and PB § 25-60 and § 25-60A provide that a case shall not be disposed until such reports are completed.  Husband argued that no such evaluation was pending as of the Judgment.  The Appellate Court determined that Wife’s constitutional claim as to due process for such violation was not preserved as Wife did not raise such claim before the trial court and did not request nor brief Golding review.  The Appellate Court reviewed Wife’s claim that denial of a continuance request constituted abuse of discretion and found that such denial was not arbitrary, Wife had several months to prepare for trial, and at the time of the continuance denial, the issue of custody was to be deferred for a final resolution after evaluation (which evaluation ultimately did not take place because Wife refused to cooperate).

As to Wife’s second claim on appeal regarding financial orders, Wife alleged that the record was “impossible to follow with all aspects relating to the division of property and the financial orders” and abuse of discretion.  The Appellate Court noted that no single criteria is preferred over others, and that the trial court is not required to recite the statutory criteria or make express findings as to each factor.  The Appellate Court analyzed the findings of the trial court to justify its decision and the facts before it and found no abuse of discretion.

As to Wife’s third claim that the retirement of the judge rendered the record inadequate, Wife argued that she was prevented from obtaining an articulation from Judge Schofield.  The trial court denied Wife’s motion for articulation on the basis of retirement.  The Appellate Court thereafter denied the request to set aside such order.  Wife sought to analogize this case to Zaniewski where the trial court issued a memorandum that contained essentially no factual findings.  The Appellate Court found that this case was readily distinguishable based on the thorough memorandum of decision setting forth its findings and credibility determinations. The Appellate Court determined that no articulation was necessary, and no new trial was required.

“Cause for the breakdown” does not equal “intolerable cruelty”; the trial court has discretion regarding alimony: Buchenholz. v. Buchenholz. 221 Conn. App. 132 (2023)

“Cause for the breakdown” does not equal “intolerable cruelty”; the trial court has discretion regarding alimony: Buchenholz. v. Buchenholz. 221 Conn. App. 132 (2023)

Buchenholz. v. Buchenholz. 221 Conn. App. 132 (2023) (“cause for the breakdown” does not equal “intolerable cruelty”; the trial court has discretion regarding alimony)

 

Officially released August 15, 2023

In Short: (1) a creative (but not particularly compelling) argument to construe testimony and findings about the cause for the breakdown of the marriage as modification of the complaint to “intolerable cruelty” and an ambush violating due process was unsuccessful on appeal; and (2) the trial court is not bound by half the length of the marriage for alimony awards and has substantial discretion to make factual findings, consider the statutory criteria, and enter such orders as it sees fit.

The parties were married in 2006 and had no children.  Wife initiated the divorce with a complaint based on irretrievable breakdown.  The case was tried over five days over six months in 2021, with testimony of both parties and several exhibits.

The trial court issued a memorandum of decision dissolving the marriage based on irretrievable breakdown.  The trial court found Wife’s testimony credible as to several incidents of violent sexual intercourse and other sexual assault as well as physical abuse and other malfeasance.  The trial court found that Husband was responsible for the breakdown of the marriage.  The trial court explicitly amended the complaint to conform to the extensive proof of Husband’s fault (but did not mention “intolerable cruelty”).  The trial court awarded Wife $425 per week in alimony for nine years.  Husband appealed.

Husband’s first claim on appeal was that (1) the trial court abused its discretion by purportedly amending Wife’s complaint to allege intolerable cruelty, and (2) Husband did not receive adequate notice that testimony would be submitted to support that ground, and thus his due process rights were violated.

The Appellate Court applied plenary review to interpretation of the trial court’s judgment (rather than abuse of discretion review to amendment of a pleading).  The Appellate Court found nothing to support Husband’s claim that the trial court amended the complaint to allege intolerable cruelty.  The Appellate Court read the trial court’s language as a recognition of the evidence of fault in the context of irretrievable breakdown.

The Appellate Court applied plenary review over Husband’s due process claim.  The Appellate Court reiterated that nothing in the record supported a claim that the allegation of intolerable cruelty was made, only evidence regarding cause for the breakdown of the marriage (fault).  The Appellate Court found that the time for discovery was adequate, no objection was made to Wife’s testimony of abuse on the first day of trial, and no effort was made for continuance or discovery over the six months thereafter during which the trial concluded.

Husband’s second claim was that the trial court abused its discretion in awarding alimony of $425/week for nine years, by failing to credit his testimony, leaving him a lower percentage of net income and providing a duration that exceeds half the length of the marriage.  The trial court had concluded, inter alia, that Husband’s testimony regarding his finances was not credible, made factual findings as to the parties’ health and incomes, and imputed an earning capacity to both parties.  The Appellate Court found no abuse of discretion.

The Judgment was affirmed.

Dissipation of assets did not result in consequences, underreporting of earnings did not result in earning capacity assignment: Pencheva-Hasse v. Hasse, 221 Conn. App. 113 (2023)

Dissipation of assets did not result in consequences, underreporting of earnings did not result in earning capacity assignment: Pencheva-Hasse v. Hasse, 221 Conn. App. 113 (2023)

Pencheva-Hasse v. Hasse, 221 Conn. App. 113 (2023) (dissipation of assets did not result in consequences, underreporting of earnings did not result in earning capacity assignment)

 

Officially released August 15, 2023

In Short: Minimal appellate precedential value.  Husband was found to have dissipated assets but was awarded the lion’s share of the marital estate, and was found to have underreported his income but was not assigned an earning capacity nor ordered to pay any alimony.  Husband appealed and lost.

The parties were married in 2009 and had one child.  Wife commenced the divorce in 2020.  The matter was tried before Judge Shluger over four days.  A Guardian Ad Litem testified in support of a shared parenting plan.  The trial court entered a memorandum of decision.  The findings of the trial court were as follows:

At the time of marriage, Wife was a twenty-four-year-old Bulgarian citizen on a temporary visa, who thereafter began working at Husband’s law firm, initially without a salary, but later for modest payroll.  At the time of the divorce Wife was working at Home Depot earning net income of $366 per week.

At the time of the marriage Husband was a fifty-one-year-old attorney who was sole proprietor of a busy criminal and personal injury practice and served as appointed counsel in the federal court system.  At time of trial, Husband claimed to earn only $612/week gross income, and despite years of tax returns showing gross receipts of between $410,000 and $537,000, his returns never showed a profit in excess of $36,000 per year.  The trial court stated that it “strains the credulity of the court that this experienced and capable trial attorney earns no income …” while spending monies on his child, including for private school.  The trial court specifically found that Husband understated his income.

The trial court made further findings regarding substantial real estate holdings that Husband owned prior to the marriage and other assets of Husband, as well as suspicious large withdraws that Husband contemporaneously with the divorce.  The trial court found that Husband “failed to adequately explain how he had used, spent or dissipated these funds [and] concluded that [Husband] had violated the automatic orders by withdrawing vast sums of money from his bank accounts …”

Wife argued that the trial court should find an earning capacity for Husband, but the trial court declined to do so (leaving me baffled, particularly with the specific finding that Husband understated his income), citing lack of an expert witness.

The trial court ordered that Wife be provided the marital residence and that Husband essentially keep his assets, determining that these orders provided Wife with $425,000 of assets and Husband with $832,500 plus the $342,000 that it found that Husband withdrew during the pendency of the action in violation of the automatic orders. The trial court awarded no alimony. (Once again, I feel I must be missing something substantial to justify these orders in light of the trial court’s factual findings, at least as recited in the Appellate decision).

The trial court ordered a shared parenting plan.  It ordered child support based on the actual claimed earnings of the parties and provided Husband a downward deviation based on the shared parenting plan, ordering only $70 per week in child support and an equal division of unreimbursed medical costs and work-related childcare.

Husband then proceeded to appeal his (seemingly undeserved and baffling) total grand-slam victory.  Wife did not participate in the appeal (perhaps because she had been awarded no alimony, $70 per week child support, no counsel fees, and a house, and could not afford an appellate attorney on a Home Depot wage while supporting her child).

Husband’s first claim on appeal was that the trial court erred in applying the child support guidelines by improperly calculating the parties’ incomes and deviating from the guidelines, arguing that the evidence did not support an earning capacity.  The Appellate Court noted that the trial court’s ordinary discretion is somewhat limited for application of the child support guidelines. The Appellate Court found that the trial court did not rely on an earning capacity (much to Wife’s disappointment) and found no error in the trial court’s deviation based on a shared parenting plan. The trial court had followed all the requisite steps in entering such an order.

Husband’s second claim on appeal was that the trial court abused its discretion by entering order of custody that were not consistent with the best interests of the child.  The Appellate Court made short work of this, simply citing the trial court’s discretion, noting that the trial court stated it considered all the relevant statutory criteria, and refusing to reweigh the evidence.

Husband’s third claim on appeal was that the trial court abused its discretion in the property distribution by not considering Husband’s lifelong financial contributions in obtaining assets prior to the marriage and incorrectly finding that he dissipated assets.  Husband seemed to miss the fact that the trial court awarded him all of his premarital assets and made findings of a substantial dissipation by him.  The Appellate Court noted that Husband was permitted to keep all his solely owned property and the lion’s share of the marital estate and found no abuse of discretion.

The Judgment was affirmed. (And I am left as confused as to both the trial court’s decision and Husband’s choice to take an appeal – however, having not read the underlying trial decision nor observed the trial, my reactions should be taken with a grain of salt.)

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