Fogel v. Fogel

Decision Date31 May 2022
Docket NumberAC 44387
Citation212 Conn.App. 784,276 A.3d 1037
Parties Angela FOGEL v. Rafael FOGEL
CourtConnecticut Court of Appeals

Kenneth M. Potash, Seymour, with whom was Rebecca L. DeBiase, for the appellant (plaintiff).

Campbell D. Barrett, Hartford, with whom was Johanna S. Katz, Hartford, for the appellee (defendant).

Cradle, Clark and Harper, Js.

PER CURIAM.

In this matter arising from the dissolution of the parties’ marriage, the plaintiff, Angela Fogel, appeals from the judgment of the trial court granting a motion to modify alimony filed by the defendant, Rafael Fogel.1 On appeal, the plaintiff claims that the court erred in (1) finding that the defendant had been involuntarily terminated from his employment, (2) declining to consider "phantom income"2 for purposes of determining the defendant's alimony obligation, and (3) failing to consider all of the factors set forth in General Statutes § 46b-82 in deciding whether to modify the defendant's alimony obligation. We affirm the judgment of the trial court.

The following procedural history is relevant to the plaintiff's claims on appeal. The marriage of the parties was dissolved on February 5, 2009. Pursuant to the separation agreement that was incorporated into the judgment of dissolution, the defendant was required to pay the plaintiff $16,666.67 per month as unallocated alimony and child support, plus an additional percentage of his gross "income from employment," until the death of either party, the remarriage of the plaintiff, or January 31, 2019, whichever occurred first. The term "income from employment" was defined in detail in the separation agreement and provided, inter alia, that "[d]istributions which are solely distributions to provide for income taxes on phantom income and which are indicated as such in a communication prepared in the ordinary course of business from the payor to the defendant, shall not be included as income from employment in calculating support payments due."

On February 27, 2017, the dissolution judgment was modified by agreement of the parties. The parties’ agreement modified the dissolution judgment in that it deleted the provisions that defined "income from employment," including the language pertaining to " ‘phantom income.’ " The agreement also provided, inter alia, that the defendant would make certain payments to the plaintiff as alimony, until January 31, 2019, and that the payments were modifiable only in the event that "[t]he defendant is involuntarily terminated from his current job at Falcon Investment Advisors, LLC [(Falcon)] ...."

On January 2, 2018, the defendant filed a motion to modify alimony, alleging a substantial change in circumstances in that he had been involuntarily terminated from his job at Falcon on May 12, 2017. On February 6, 2018, the plaintiff filed a motion for contempt, alleging that the defendant unilaterally reduced his alimony payment to her for the month of February, 2018.

On November 2, 2020, following a three day hearing, the court filed a memorandum of decision in which it granted the defendant's motion to modify alimony and denied the plaintiff's motion for contempt. The court found that, although the defendant and Falcon had executed a "Transition Agreement," which indicated that the defendant had "retired," the defendant had, in fact, been terminated involuntarily for making an investment that cost Falcon more than $40,000,000. The court further found that, since his termination, the defendant had been unable to secure employment at a comparable salary. The court therefore concluded that there had been a substantial change in circumstances and that the defendant did not have the ability to pay his remaining alimony obligation. In so concluding, the court rejected the plaintiff's argument that the defendant had the ability to pay based on his receipt of approximately $3.2 million in " ‘phantom income’ " in 2018. The court held that the " ‘phantom income’ " was "not available to the defendant for his use" and declined to consider it in determining his ability to pay alimony. Accordingly, the court granted the defendant's motion to modify and terminated his alimony obligation. The court also found that the plaintiff failed to meet her burden to demonstrate that the defendant wilfully failed to pay the alimony order and denied her motion for contempt. This appeal followed.

On appeal, the plaintiff claims that the court erred in (1) finding that the defendant had been involuntarily terminated from his employment, (2) declining to consider "phantom income" for purposes of determining the defendant's alimony obligation, and (3) failing to consider all of the factors set forth in § 46b-82 in deciding whether to modify the defendant's alimony obligation. We disagree.

"[T]he standard of review in family matters is well settled. 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. ... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. ... 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." (Internal quotation marks omitted.) Coleman v. Bembridge , 207 Conn. App. 28, 33–34, 263 A.3d 403 (2021).

The plaintiff first argues that the court erroneously found that the defendant was involuntarily terminated from his position at Falcon, where there was "evidence that he [had] retired." In so arguing, the plaintiff misunderstands the scope of our review. In determining whether a trial court's factual finding is clearly erroneous, we examine the record to determine whether there is any evidence to support that finding, not whether there is evidence to support...

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