Berman v. Berman

• Decision Date: 16 March 2021
• Docket Number: AC 42554
• Citation: 248 A.3d 49,203 Conn.App. 300
• Court: Connecticut Court of Appeals
• Parties: Edward BERMAN v. Ellen BERMAN

203 Conn.App. 300

248 A.3d 49

Edward BERMAN

v.Ellen BERMAN

AC 42554

Appellate Court of Connecticut.

Argued December 7, 2020

Officially released March 16, 2021

Christopher P. Norris, for the appellant (plaintiff).

Ellen Berman, self-represented, the appellee (defendant).

Elgo, Alexander and DiPentima, Js.

DiPENTIMA, J.

The plaintiff, Edward Berman, appeals from the judgment of the trial court denying in part his motion to modify his obligation to pay alimony and to provide health and life insurance to the defendant, Ellen Berman.¹ On appeal, the plaintiff claims that the court erred in (1) finding that the defendant had ceded claims she might have had at the time of the dissolution of the parties’ marriage in exchange for lifetime alimony, (2) denying his motion for modification of alimony on the basis of that finding and its finding that the defendant had given up claims during the dissolution proceedings as part of the mosaic, and (3) denying his motion for modification of alimony after finding that his income had decreased by approximately 32 percent since the date of the dissolution. We reverse the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of the claims on appeal. The plaintiff and the defendant were married in Norwalk on October 24, 1976. Following a breakdown in the parties’ marriage, the trial court, Winslow , J ., rendered a judgment dissolving their marriage on January 16, 2013. The court incorporated into the dissolution judgment a separation agreement (agreement) that had been executed and signed by the parties, both of whom had legal representation in negotiating the agreement. The agreement provided that, upon the sale of the marital residence in Ridgefield, the plaintiff was required to pay the defendant $6500 per month as alimony. Further, upon the sale of a condominium located in Vermont that was owned by the parties, the plaintiff's alimony obligation was to increase to $8000 per month and continue until either the death of the plaintiff, the death of the defendant or the defendant's remarriage. The agreement also required the plaintiff to be responsible for the defendant's medical and dental insurance, and to maintain term life insurance in the amount of $1 million with the defendant listed as the beneficiary. Pursuant to the agreement, the plaintiff also was responsible for a number of the parties’ debts, including payment of an outstanding line of credit; payment of the mortgages on the marital residence, along with taxes, insurance, utilities, repairs and maintenance expenses until the property is sold; payment of any deficiency related to the sale of the marital residence and the sale of the Vermont condominium; and payment of any outstanding loans related to his medical practice.

On August 29, 2018, the plaintiff filed a motion for modification of his alimony obligation as set forth in the agreement, as well as his obligation to pay for the defendant's health insurance and to maintain life insurance. In his motion, the plaintiff alleged that his income had decreased substantially since the date of the dissolution. On December 21, 2018, the trial court, Eschuk , J ., rendered judgment denying in part the plaintiff's motion for modification. See footnote 1 of this opinion. This appeal followed. Additional facts and procedural history will be set forth as necessary.

We begin by setting forth our standard of review. We review the court's judgment denying the motion for modification of alimony "under an abuse of discretion standard. An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... 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.... [T]he trial court's findings [of fact] are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.)

Callahan v. Callahan , 192 Conn. App. 634, 644–45, 218 A.3d 655, cert. denied, 333 Conn. 939, 218 A.3d 1050 (2019).

" General Statutes § 46b-86 governs the modification of an alimony or child support order after the date of a dissolution judgment. Section 46b-86 (a) provides that a final order for alimony or child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred.... To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order....

"Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony and support are relevant to the question of modification.... Thus, [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties.... Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the [ General Statutes § 46b-84 ] criteria, make an order for modification.... A finding of a substantial change in circumstances is subject to the clearly erroneous standard of review." (Citation omitted; internal quotation marks omitted.) Flood v. Flood , 199 Conn. App. 67, 77–78, 234 A.3d 1076, cert. denied, 335 Conn. 960, 239 A.3d 317 (2020).

Moreover, "[i]t is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as a contract and construed in accordance with the general principles governing contracts.... When construing a contract, we seek to determine the intent of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.... When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract." (Internal quotation marks omitted.)

Giordano v. Giordano , 200 Conn. App. 130, 136, 238 A.3d 113, cert. denied, 335 Conn. 970, 240 A.3d 286 (2020) ; see also Winthrop v. Winthrop , 189 Conn. App. 576, 581–82, 207 A.3d 1109 (2019).

I

The plaintiff first claims that the trial court improperly found that the defendant had relinquished claims she might have had to certain marital assets in exchange for lifetime alimony. Specifically, the plaintiff claims that there was no testimony or evidence in the record to support the court's finding that such an exchange of assets for alimony had occurred. We agree.

The following additional facts are necessary for our resolution of this claim. A hearing on the plaintiff's motion for modification was held on November 21, 2018, at which both parties testified. The plaintiff was represented by counsel; the defendant was, as she is before us, a self-represented party. The plaintiff testified that he is a medical doctor and is sixty-eight years old.

He offered as an exhibit his financial affidavit from the date of the dissolution of the marriage, which showed his gross and net weekly income at that time. He also offered as an exhibit his 2012 tax return, which showed an income of $466,000 the year before his divorce. He testified that in 2012, following an inquiry by a Medicare contractor, he entered into an agreement that resulted in a payment order, which required him to pay $215,000 related to the Medicare investigation. The plaintiff further testified that in June, 2015, major changes occurred in his medical practice. Specifically, he stated that as a result of a newspaper article about the Medicare settlement and other factors, he lost income on a variety of fronts. To support that claim, he offered as an exhibit his 2017 tax return, which showed an income of $151,093. He testified that he has $336,000 in liabilities and that the Vermont property is in foreclosure. When asked if he has a negative net worth on his financial affidavit, he responded, "Yes I do. I guess I'm worth-less." Because his "financial situation was extremely different when [the] negotiations [regarding] the divorce were agreed upon," he testified that he could no longer afford his $6500 monthly alimony obligation, let alone the increase to $8000 in alimony as set forth in the agreement. Thus, he requested that his alimony obligation be terminated.

During cross-examination of the plaintiff, the self-represented defendant asked the plaintiff if it is true that the defendant "took much less alimony than [she] could have gotten and took no equity," to which the plaintiff responded that "[t]here was no equity." There-after, the defendant stated that there was "about $300,000 equity in the...