Callahan v. Callahan
| Decision Date | 17 September 2019 |
| Docket Number | AC 40723 |
| Citation | 192 Conn.App. 634,218 A.3d 655 |
| Court | Connecticut Court of Appeals |
| Parties | Jill Gilbert CALLAHAN v. James CALLAHAN |
Laura W. Ray, Hartford, for the appellant (plaintiff).
Campbell D. Barrett, with whom were Jon T. Kukucka and, on the brief, Johanna S. Katz, Hartford, for the appellee (defendant).
Alvord, Moll and Pellegrino, Js.
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.
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:
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 companies, thereby reducing the earnings from which he pays alimony. The motion was not pursued while the parties' prior appeals were pending. On October 15, 2015, the defendant filed an amended motion for modification of alimony, again arguing that his income had decreased since the date of dissolution.
The court began hearing evidence on the defendant's motion on November 8, 2016. The defendant testified that, taking the four companies together, the cash collected on an annual basis had decreased substantially since the May, 2012 dissolution judgment. As to the potential for other employment, the defendant testified that he did not believe it would be possible for him to leave the companies and get a new job. Specifically, he stated:
Both parties presented expert testimony. The defendant presented the testimony of Attorney Mark Harrison. Harrison testified that he used the compensation methodology set forth in the May, 2012 dissolution judgment, pursuant to which 50 percent of the pretax profits of three of the companies (Pentalpha Funding, LLC, Pentalpha Group, LLC, and Pentalpha Capital, LLC) as shown in the companies' audited financial statements, was attributed to the defendant as reasonable compensation. Harrison performed the same analysis for the years 2012–2015 to arrive at reasonable compensation attributable to the defendant in the amount of $210,000. He also performed the same analysis including profits from Pentalpha Surveillance, which was omitted from the calculations in the May, 2012 dissolution judgment, to arrive at reasonable compensation attributable to the defendant in the amount of $370,000. The audited financial statements for each of the four companies, on which Harrison relied, also were entered into evidence.
Harrison testified that the defendant was not earning sufficient...
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