De Almeida-Kennedy v. Kennedy

• Court: Connecticut Court of Appeals
• Writing for the Court: ELGO, J.
• Citation: De Almeida-Kennedy v. Kennedy, 188 Conn. App. 670, 205 A.3d 704 (Conn. App. 2019)
• Decision Date: 26 March 2019
• Docket Number: AC 40997
• Parties: Fatima K. DE ALMEIDA-KENNEDY v. James KENNEDY

188 Conn.App. 670

205 A.3d 704

Fatima K. DE ALMEIDA-KENNEDY

v.James KENNEDY

AC 40997

Appellate Court of Connecticut.

Argued November 29, 2018

Officially released March 26, 2019

James Kennedy, self-represented, the appellant (defendant).

J. David Griffin, for the appellee (plaintiff).

Lavine, Sheldon and Elgo, Js.

ELGO, J.

In this postdissolution marital dispute, the defendant, James Kennedy, appeals from the judgment of the trial court in connection with certain postjudgment orders entered in favor of the plaintiff, Fatima K. De Almeida-Kennedy. On appeal, the defendant claims that the court improperly (1) denied in part his motion for modification, (2) granted in part the plaintiff's motion for clarification, in which she requested, inter alia, that the court address her prior motion for attorney's fees, and (3) granted the plaintiff's motion for attorney's fees and expenses pending appeal. We reverse the judgment of the trial court with respect to the defendant's second claim but affirm the judgment in all other respects.

The following facts and procedural history are relevant to this appeal. The marriage between the parties was dissolved on August 2, 2010. The judgment of dissolution incorporated the parties' separation agreement, which provided, inter alia, that the defendant would pay the plaintiff $ 1000 per week in unallocated alimony and child support. On December 9, 2014, that judgment was modified by agreement of the parties to provide, inter alia, that the defendant would pay the plaintiff $ 900 per week in unallocated alimony and child support.

On December 28, 2015, the defendant filed the present motion for modification in which he requested, inter alia, that his unallocated alimony and child support obligation be modified.¹ On May 12, 2017, the plaintiff filed a motion for attorney's fees, asking the court to order the defendant to pay her attorney's fees incurred defending the defendant's motion for modification. The court received evidence on both motions in a trial held over the course of several days beginning on July 24, 2017, and concluding on August 2, 2017. By order dated September 29, 2017, the court granted in part and denied in part the defendant's motion for modification. Relevant to this appeal, the court denied the defendant's request to modify his unallocated alimony and child support obligation.²

The defendant filed the present appeal on October 27, 2017. On October 30, 2017, the plaintiff filed a motion for clarification as to the trial court's September 29, 2017 ruling, requesting, inter alia, that the trial court issue a ruling on her May 12, 2017 motion for attorney's fees. At the same time, the plaintiff also filed a motion for attorney's fees and expenses pending appeal. On November 16, 2017, the trial court held a hearing, which the defendant did not attend, on the plaintiff's motion for clarification and motion for attorney's fees and expenses pending appeal. On that same date, the court (1) granted in part the plaintiff's motion for clarification, ordering the defendant "to pay the sum of $ 11,250 to plaintiff's counsel as a sanction for bringing a baseless motion," and (2) granted the plaintiff's motion for attorney's fees and expenses pending appeal, ordering the defendant to pay "an advance of $ 10,000 as a retainer to be applied with regard to the appeal from the court's order." Subsequently, the defendant filed two new appeals from the court's November 16, 2017 orders, which, pursuant to Practice Book § 61-9, we have treated as amendments to the defendant's original appeal. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied in part his motion for modification by rejecting his request to modify his unallocated alimony and child support obligation. We disagree.

We begin by noting that "[t]he well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case.... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.... Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court's ruling ... may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law." (Citations omitted; internal quotation marks omitted.) Gabriel v. Gabriel , 324 Conn. 324, 336, 152 A.3d 1230 (2016).

The defendant claims that the trial court abused its discretion by (1) ordering the unallocated alimony and child support amount of $ 900 to continue without making findings under the child support guidelines, (2) concluding that the defendant admitted there was no change in circumstances, and (3) concluding that there was insufficient evidence of a change of circumstances to justify modification. We address each claim in turn.

A

The defendant claims that the court abused its discretion by ordering that his current obligation to pay unallocated alimony and child support be continued without making findings under the child support guidelines. He claims that his request to modify his unallocated alimony and child support obligation automatically triggers the court's duty to make specific findings pursuant to the child support guidelines, even if he made no such request. We disagree.

"[Section] 46b-86 governs the modification of [an unallocated alimony and] child support order after the date of a dissolution judgment.... Section 46b-86 (a)³ permits the court to modify [unallocated alimony and] child support orders in two alternative circumstances.

Pursuant to this statute, a court may not modify [an unallocated alimony and] child support order unless there is first either (1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines ...." (Citation omitted; footnote added; footnote omitted; internal quotation marks omitted.) Weinstein v. Weinstein , 104 Conn. App. 482, 491–92, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).

In support of his request to modify his unallocated alimony and child support obligation, the defendant did not specifically allege either a substantial change in circumstances or that the December 9, 2014 order imposing that obligation substantially deviated from the child support guidelines. See footnote 1 of this opinion. The court read the defendant's request as seeking a modification of his unallocated alimony and child support obligation on the basis of a change in legal or physical custody and, in closing argument, the defendant specifically stated that he was "requesting financial modifications due to a substantial change in circumstance."⁴

On the basis of our review of the record, we conclude that the defendant never raised before the trial court his claim that his unallocated alimony and child support obligation substantially deviated from the child support guidelines.⁵ "It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level.... [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court.... The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked.... The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court ... to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.... It therefore follows that [a] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one ...." (Citations omitted; emphasis in original; internal quotation marks omitted.) Corrarino v. Corrarino , 121 Conn. App. 22, 29–30, 993 A.2d 486 (2010).

The defendant argues that "[t]he court had a duty to review the prior record and apply due diligence in making the required determination [under the child support guidelines], even if not requested to do so by either party." We disagree.

To support this proposition, the defendant relies on General Statutes § 46b-215b (c), which provides: "In any proceeding for the establishment or modification of a child support award, the child support and arrearage guidelines shall be considered in addition to and not in lieu of the criteria for such awards established in sections 46b-84, 46b-86, 46b-130, 46b-171, 46b-172, 46b-215, 17b-179 and 17b-745." The defendant argues that the court was required to consider and make findings under the child support guidelines when determining whether his unallocated alimony and child support obligation should be modified. The court, however, considered the defendant's request to modify his unallocated alimony and child support obligation on the basis of a substantial change in circumstances.

"In the context of a trial court's consideration of a motion to modify, the guidelines become relevant only after a change in circumstances has been shown, if that is the ground urged in support of modification ... or in determining whether the existing child support order substantially deviates from the guidelines, if that is the ground urged in support of modification." (Citation omitted; emphasis added.) Mullin v. Mullin , 28 Conn. App. 632, 635–36, 612 A.2d 796 (1992). Accordingly, because the defendant did not raise as a basis for...