Callahan v. Callahan, 091719 CTCA, AC 40723

Docket Nº:AC 40723
Opinion Judge:ALVORD, J.
Party Name:JILL GILBERT CALLAHAN v. JAMES CALLAHAN
Attorney:Laura W. Ray, for the appellant (plaintiff). Campbell D. Barrett, with whom were Jon T. Kukucka and, on the brief, Johanna S. Katz, for the appellee (defendant).
Judge Panel:Alvord, Moll and Pellegrino, Js.
Case Date:September 17, 2019
Court:Appellate Court of Connecticut
 
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JILL GILBERT CALLAHAN

v.

JAMES CALLAHAN

No. AC 40723

Court of Appeals of Connecticut

September 17, 2019

Argued April 18, 2019

Procedural History

Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Munro, J.; judgment dissolving the marriage and granting certain other relief, from which the defendant appealed to this court; thereafter, the court, Munro, J., granted the defendant's motion to open the judgment and entered certain financial orders, and the plaintiff appealed to this court, which reversed in part the trial court's judgment and remanded the case to that court for further proceedings; subsequently, the court, Hon. Michael E. Shay, judge trial referee, granted the defendant's motion to modify alimony and rendered judgment thereon, from which the plaintiff appealed to this court; thereafter, the court, Diana, J., denied the plaintiff's motions for contempt and for an order regarding certain insurance checks, and the plaintiff filed an amended appeal. Appeal dismissed in part; affirmed.

Laura W. Ray, for the appellant (plaintiff).

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

Alvord, Moll and Pellegrino, Js.

OPINION

ALVORD, J.

In this postjudgment dissolution matter, the plaintiff, Jill Gilbert Callahan, appeals from the judgments of the trial court, rendered on remand from this court, granting a motion to modify alimony filed by the defendant, James Callahan, and issuing additional postjudgment orders. On appeal, the plaintiff claims that the court (1) erred in granting the defendant's motion to modify alimony, (2) abused its discretion in modifying alimony retroactively, (3) lacked the legal authority to suspend the defendant's alimony payments to her as a condition of granting her motion for a continuance, (4) erred in determining the effective date of financial orders that this court mandated be reinstated, (5) erred in ordering her to execute certain documents to transfer her interest in the companies owned by the parties, and (6) improperly concluded that it lacked subject matter jurisdiction to require the defendant to endorse two insurance checks. We dismiss as moot the plaintiff's third claim regarding the suspension of alimony payments and affirm the judgments of the trial court in all other respects.1

The following facts and procedural history are relevant to our resolution of the appeal. The parties were married in 1987 and raised three children, all adults at the time of the dissolution trial. In 2009, the plaintiff filed a complaint seeking dissolution of her marriage to the defendant. The matter was tried to the court, Munro, J., in March, 2012. On May 8, 2012, the court issued a memorandum of decision rendering judgment dissolving the parties' marriage on the ground of irretrievable breakdown, and entering property division and alimony orders (May, 2012 dissolution judgment). On June 15, 2012, the defendant filed a motion to open the judgment of dissolution and attendant financial orders, which was granted on November 6, 2012. The court then held an evidentiary hearing and, in a February 27, 2014 memorandum of decision, issued substitute financial orders (February, 2014 decision).

Both parties filed appeals. This court, on May 5, 2015, issued a decision reversing the trial court's granting of the motion to open the judgment and remanded the matter with direction to reinstate the May, 2012 financial orders. Callahan v. Callahan, 157 Conn.App. 78, 101, 116 A.3d 317, cert. denied, 317 Conn. 913, 116 A.3d 812 (2015), and cert. denied, 317 Conn. 914, 116 A.3d 813 (2015).

Following this court's resolution of the parties' prior appeals, the plaintiff filed, among several motions, a motion for contempt dated July 6, 2015. In her motion, she argued, inter alia, that the defendant had refused to comply with the judgment in that he had failed to pay amounts set forth in the May, 2012 financial orders, plus interest, which she contended had begun accruing in 2012. On May 4, 2016, the court, Hon. Michael E. Shay, judge trial referee, issued a memorandum of decision declining to find the defendant in contempt, in which it concluded that ‘‘the effective date for the running of interest is September 8, 2015, '' the date that, the court determined, the defendant had exhausted all the appellate avenues that had been available to him.

In November, 2016, the court, Hon. Michael E. Shay, judge trial referee, began hearing evidence on a motion to modify alimony originally filed by the defendant on May 19, 2014, and amended on October 15, 2015. In its memorandum of decision filed August 1, 2017, the court found that the defendant had established a substantial change in circumstances and granted his motion to modify alimony. On August 7, 2017, the plaintiff filed this appeal.

While this appeal was pending, the court, Diana, J., heard additional motions filed by the plaintiff. On April 3, 2018, the court concluded that it lacked jurisdiction over the plaintiff's motion requesting that the court order the defendant to endorse two Chubb property damage insurance checks.2 On April 10, 2018, the court denied the plaintiff's motion for contempt regarding the documents necessary to transfer the plaintiff's interest in companies owned by the parties and issued a remedial order. On April 20, 2018, the plaintiff filed an appeal challenging the April 3 and 10, 2018 orders, which this court treated as an amendment to the original appeal filed on August 7, 2017. Additional facts and procedural history will be set forth as necessary.

I

The plaintiff's first claim on appeal is that the trial court erred in finding that the defendant had established a substantial change in circumstances justifying a modification in alimony. She argues that the trial court erroneously considered evidence showing a change in the defendant's earnings only from the companies owned by the parties, whereas the dissolution court based its original alimony award on the defendant's general earning capacity independent of his earnings from the companies. Thus, she argues that the trial court failed to compare ‘‘apples to apples . . . .''3 We disagree.

The following additional facts and procedural history are relevant to this claim. In 1995, the parties established three companies together, Pentalpha Group, LLC, Pentalpha Funding, LLC, and Pentalpha Capital, LLC. The plaintiff owned 51 percent of each of the three entities and the defendant owned 49 percent. In 2005, a fourth Pentalpha entity was created, Pentalpha Surveillance, of which 100 percent was owned by the defendant (collectively, the companies). The court found that the companies ‘‘work in various fields: as an investment advisor, as a trading and brokerage company, as a broker dealer and as an oversight company, all ostensibly in the loan market, particularly working with asset-backed debt.''

In its May, 2012 dissolution judgment, the court ordered the defendant to pay $60, 000 per month in alimony, until the death of either party, the remarriage of the plaintiff, or as determined by the court, pursuant to General Statutes § 46b-86 (b). In so ordering, the court stated: ‘‘The alimony order is predicated on earnings, including member distributions to the defendant of up to $2, 000, 000 per year. The court notes that the plaintiff's valuation expert, Barry Sziklay, concluded that a comparable compensation for the defendant, as a key person operating on Wall Street, would be at least in the [$1 million to $2 million] range annually. Ultimately, in the valuation model that he used, Sziklay attributed 50 percent of the pretax profits to the defendant. For 2010, that resulted in adjusted compensation of $1, 976, 312. As of the second quarter's completion for 2011, that adjusted compensation attributed to the defendant was $684, 880. The defendant provided no contrary evidence. The court finds this approach reasonable. No evidence was adduced of any increase in liabilities. Accordingly, finding earnings attributable to the defendant in the amount of $2, 000, 000 gross is conservative, the court adopts it as a finding of fact as to the present earning capacity of the defendant at Pentalpha.''

On May 19, 2014, while the parties' prior appeals remained pending, the defendant filed a motion to modify his alimony. In that motion, he represented that the companies were ‘‘experiencing a cash flow crisis'' and that the defendant's earning capacity at the companies was no longer $2 million. The defendant argued that postjudgment misconduct of the plaintiff, on which the trial court relied in opening the dissolution judgment, had diminished the value of the...

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