Anketell v. Kulldorff

• Decision Date: 28 September 2021
• Docket Number: AC 42452
• Citation: 207 Conn.App. 807,263 A.3d 972
• Parties: Beth E. ANKETELL v. Martin KULLDORFF
• Court: Connecticut Court of Appeals

207 Conn.App. 807

263 A.3d 972

Beth E. ANKETELL

v.Martin KULLDORFF

AC 42452

Appellate Court of Connecticut.

Argued May 18, 2021

officially released September 28, 2021

Campbell D. Barrett, with whom were Johanna S. Katz and, on the brief, Jon T. Kukucka, Hartford, for the appellant (defendant).

Scott T. Garosshen, with whom were Karen L. Dowd and, on the brief, Kenneth J. Bartschi, Hartford, for the appellee (plaintiff).

Alvord, Prescott and Lavine, Js.

ALVORD, J.

The defendant, Martin Kulldorff, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Beth E. Anketell. On appeal, the defendant claims that the trial court (1) erred by failing to identify the presumptive child support obligation under the child support guidelines, as set forth in § 46b-215a-1 et seq. of the Regulations of Connecticut State Agencies (guidelines), before entering a support order based on a deviation, (2) erred in calculating the parties’ incomes, (3) erred in awarding the plaintiff a lump sum property settlement, (4) abused its discretion in awarding appellate attorney's fees to the plaintiff, and (5) abused its discretion in entering its custodial orders. We affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of the present appeal. The parties married on July 16, 2011, and have two minor children together. The plaintiff commenced this dissolution action on October 5, 2016. A trial was held on September 13 and 14, 2018. On December 3, 2018, the court, Green, J. , issued its memorandum of decision in which it made the following relevant factual findings. Both parties had been married once before. The defendant has a teenaged child from his first marriage, and he shares joint custody of that child with his first spouse. The defendant has primary physical custody of his first child and lives in Ashford, as the defendant determined that his first child should live there in order to complete his high school education at E.O. Smith High School. The home in Ashford (Ashford home) was purchased by the defendant prior to the parties’ marriage, and the parties lived there during the marriage.

In 2012, the defendant paid for the plaintiff's nursing education at the University of Connecticut. Prior to the birth of the parties’ children in 2015, the plaintiff worked twenty-nine hours per week, which was considered a full-time position, as a nurse at UMass Memorial Medical Center in Worcester, Massachusetts. While working full time, the plaintiff elected not to participate in her employer's retirement plans. Following the birth of the parties’ children, the plaintiff returned to work as a per diem nurse. Because her position is per diem, it is without fringe benefits, and her income depends on the number of hours she works. During the pendency of the dissolution proceedings, the plaintiff's work hours varied considerably.

The defendant has earned a PhD and works as a biostatistician for Brigham and Women's Hospital in Boston. The defendant receives income from drug safety research grants. The grants direct overhead funds to the defendant's employer, which then pays the defendant's salary. His income depends on the number of grant-funded projects that are ongoing at any particular time.

At the time of the dissolution trial, the plaintiff had moved to a rental property in Tolland, but she owns a home in Worcester, Massachusetts (Worcester home). The Worcester home is occupied by tenants, and their rental payments cover the mortgage and taxes and provide a modest income. The plaintiff planned to move to the Worcester home following the dissolution of the parties’ marriage. During the marriage, a $15,000 balloon payment became due on a second mortgage on the Worcester home. The plaintiff and the defendant disputed whether the decision for the plaintiff to opt out of her employer's retirement benefit plan in order to focus on utilizing her employment earnings toward the balloon payment was made as a couple or unilaterally by the plaintiff. The parties agreed, however, that the balloon payment was to be made out of funds the plaintiff had saved and allocated. Following the balloon payment on the Worcester home, the defendant made two $10,000 mortgage payments, over and above the usual monthly payments due on the mortgage, on the Ashford home. The decision to make additional mortgage payments on the Ashford home was made unilaterally by the defendant.

After the filing of this dissolution action and following the issuance of the automatic orders, the defendant transferred funds into Connecticut Higher Education Trust (CHET) accounts for the parties’ children and transferred additional funds into a CHET account for the defendant's older child. The decision to transfer funds into the CHET accounts was made unilaterally by the defendant.

The parties own a home and attached business in Nicaragua, which they purchased in 2015. Because of unrest in the country, estimates of the value of any equity in the property vary substantially. The parties agreed that if the country became more stable, discussions of the property and its possible disposition would be less theoretical. The parties also each own ten cows and their calves in Nicaragua, although the welfare of the animals is not known.

Attorney Rachel Sarantopoulos, the family services counselor, conducted an evaluation. Her overall assessment was that both parties are able, loving parents. Sarantopoulos recommended that the plaintiff be permitted to relocate to Worcester and that her Worcester home be designated as primary for school purposes. Sarantopoulos otherwise recommended that the parties’ pendente lite shared custody plan, which had been entered into by agreement and managed by the parties with few conflicts, be continued.

The court dissolved the marriage on the ground of irretrievable breakdown and entered the following orders relevant to this appeal. The court awarded no alimony to either party. The court awarded the parties’ joint legal and physical custody of their children and entered a parenting time schedule. The court permitted the plaintiff to relocate to Worcester and designated the plaintiff's residence as primary for purposes of school.¹ The court ordered the defendant to continue to maintain the CHET accounts for the benefit of the parties’ children.

The court ordered the defendant to pay child support in the amount of $325 per week. The court stated that such amount was "a downward deviation from the guideline amount of $473 based on the shared parenting plan, the increased commute associated with [the plaintiff's] residence in Worcester, [the defendant's] variable income as well as his demonstrated earning capacity, which is very near or at the top of his salary range."

The court ordered the defendant to pay the plaintiff "a lump sum property settlement of $52,500," which, the court stated, "includes settlement for the plaintiff's marital share of the Nicaragua house, partial reimbursement for funds transferred to the children's CHET accounts and mortgage overpayments on the Ashford [home] made by the defendant."

With respect to other property orders, the court ordered the defendant to transfer $175,000 to the plaintiff from his "retirement funds/accounts of his choice ...." The court ordered the plaintiff to transfer her interest in the property in Nicaragua to the defendant and awarded the defendant ownership of all the cows and calves in Nicaragua.² The court ordered that the parties retain all assets presently in their respective names, including the Ashford home, which would remain the property of the defendant, and the Worcester home, which would remain the property of the plaintiff.³

On January 4, 2019, the defendant filed the present appeal. On January 14, 2019, the plaintiff filed a motion for order of attorney's fees, requesting that the court order the defendant to pay the $25,000 retainer of her appellate attorney. The court granted the motion on August 23, 2019. The defendant thereafter amended his appeal to include a challenge to the court's award of attorney's fees.

After filing this appeal, the defendant filed a motion for articulation, which the trial court denied. The defendant then filed a motion for review with this court. This court granted the motion in part and ordered the trial court "to articulate as to its determination of the parties’ respective annual incomes and/or earning capacity, and the value at the time of the dissolution judgment of all assets that have been distributed, and the court's rationale for its financial orders in light of the articulated findings."

In response, the trial court issued a December 5, 2019 articulation setting forth its findings (first articulation). The court stated that "shorter work weeks seemed appropriate" for the plaintiff, given the nature of her work. It credited the plaintiff's explanation of her pay structure and evidence that full-time employment with her employer constituted less than forty hours per week. The court found that "[m]aintaining per diem employment maximizes the plaintiff's hourly rate and allows for flexibility for caring for the children depending on the access schedule ...."⁴ (Citation omitted.) The court rejected the defendant's position at trial that it would be inequitable to allow the plaintiff to work less than forty hours per week and noted that the defendant's proposed parenting plan had been designed to maximize opportunity for the plaintiff to work more hours.

The court articulated that, although the defendant worked forty to forty-five hours per week, the number of hours he worked did not determine his income. Rather, the defendant's income was dependent on the number of grant-funded projects being worked on at a particular time. The court stated that the defendant "works for an organization that caps his income at the nearly $200,000 per year that he was making at the time of the filing for dissolution and not...