Gosselin v. Gosselin

• Decision Date: 09 September 2008
• Docket Number: No. 27453.,27453.
• Citation: 955 A.2d 60,110 Conn.App. 142
• Court: Connecticut Court of Appeals
• Parties: Roger H. GOSSELIN v. Maureen E. GOSSELIN.

955 A.2d 60

110 Conn.App. 142

Roger H. GOSSELIN v. Maureen E. GOSSELIN.

No. 27453.

Appellate Court of Connecticut.

Argued January 22, 2008.

Decided September 9, 2008.

Steven H. St. Clair, for the appellant (defendant).

Susan Asselin-Connolly, with whom, on the brief, was John T. Asselin-Connolly, New London, and Richard E. Joaquin, for the appellee (plaintiff).

FLYNN, C.J., and BISHOP and BEACH, Js.

BEACH, J.

The defendant, Maureen E. Gosselin, appeals from the judgment of the trial court granting the motion filed by the plaintiff, Roger H. Gosselin, for modification of an award of alimony payable to her under the parties' marital dissolution judgment. On appeal, the defendant claims that the court (1) improperly granted the modification on a ground not raised in the motion filed by the plaintiff and (2) in the course of finding a substantial change of circumstances warranting a modification of alimony pursuant to General Statutes § 46b-86,¹ improperly (a) found a substantial change in income, (b) considered that an increase in the value of the assets awarded in the dissolution decree could serve as a basis for modifying alimony and (c) considered that an unrealized increase in the value of real estate could serve as a basis for modifying alimony. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The parties were married on June 17, 1972, and on June 20, 2000, the court entered a decree of dissolution. Pursuant to the terms of the judgment, the plaintiff was ordered to pay to the defendant as periodic alimony $75 per week for a period of eleven years, nonmodifiable as to term but modifiable as to amount. On January 10, 2005, the plaintiff filed a motion to decrease or to terminate his alimony obligation. After a hearing, the court found that the defendant's income and the value of her assets had increased, constituting a substantial change in circumstances, and it modified the alimony order to $1 per year. The defendant filed a motion to reargue, which was denied. This appeal followed.

"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.... Thus, unless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases.... With respect to the factual predicates for modification of an alimony award, our standard of review is clear. This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken.... This court, of course, may not retry a case.... The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court.... 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.) Sabrowski v. Sabrowski, 105 Conn.App. 49, 52-53, 935 A.2d 1037 (2007). "Where ... some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole.... If, when taken as a whole, they undermine appellate confidence in the court's fact finding process, a new hearing is required." (Internal quotation marks omitted.) In re Selena O., 104 Conn.App. 635, 645, 934 A.2d 860 (2007).

"[Section] 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When ... the disputed issue is alimony, the applicable provision of the statute is § 46b-86(a), which provides that a final order for alimony 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.... Because a request for termination of alimony is, in effect, a request for a modification, this court has treated as identical motions to modify and motions to terminate brought under § 46b-86(a)....

"The traditional purpose of alimony is to meet one's continuing duty to support.... Section 46b-86 reflects the legislative judgment that continuing alimony payments should be based on current conditions.... Thus, [t]o avoid re-litigation of matters already settled, courts in modification proceedings allow the parties only to present evidence going back to the latest petition for modification.... Alimony decrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted." (Internal quotation marks omitted.) Simms v. Simms, 283 Conn. 494, 502-503, 927 A.2d 894 (2007).

I

The defendant first claims that the court improperly considered a change in the value of her assets when the motion to modify, as written, was based only on an allegation that there had been a change in the parties' incomes. We disagree.

We recognize, as a general matter, that the right of a party to recover is limited to the allegations in his pleading. See Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn.App. 194, 200, 756 A.2d 309 (2000). This principle is rooted in the requirement that parties should have notice of the basis for another party's claim. The plaintiff's motion to modify did allege only a change in income, not assets. The defendant, however, had ample notice of the plaintiff's claim that the respective values of the parties' assets should be considered by the court in determining whether there had been a substantial change in the parties' financial circumstances from the time of the entry of the marital dissolution decree. The record reveals that the value of the parties' assets was a topic of depositions taken before the hearing on the motion to modify. Both parties introduced into evidence affidavits and schedules that purported to show percentage changes to income and assets; the evidence adduced at the hearing also related to both assets and income. When both sides, without objection as to this issue, introduced evidence as to assets, the defendant indisputably had notice that the plaintiff's quest for a modification was premised on a claim that there had been a substantial change to the parties' financial circumstances, including both their assets and incomes. The defendant waived any irregularity by not objecting and by introducing evidence on the issue. See Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d 1273 (1990) ("[t]he proper way to attack a variance between pleadings and proof is by objection at the trial to the admissibility of that evidence which varies from the pleadings, and failure to do so at the trial constitutes a waiver of any objection to such variance" [internal quotation marks omitted]), on remand, 24 Conn.App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233, 610 A.2d 574 (1992).

II

The defendant next claims that there were various improprieties in the court's determination that there had been a substantial change in her financial circumstances warranting a modification of alimony. We reject the defendant's claims.

The defendant first argues that there was no substantial change in income because each party's proportional share of the total income remained approximately the same. That issue received cursory mention in the defendant's brief, and we summarily reject the claim. The defendant also advanced the same argument as to asset values without analysis or authority regarding asset values, and we similarly do not consider the claim. See Rosier v. Rosier, 103 Conn.App. 338, 340 n. 2, 928 A.2d 1228 ("We are not required to review issues that have been improperly presented to this court through an inadequate brief.... Where the parties cite no law and provide no analysis of their claims, we do not review such claims." [Internal quotation marks omitted.]), cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

The defendant next claims that the court improperly found that an increase in the value of her assets following the dissolution could serve as a ground for modification of the alimony award. That argument contrasts with our Supreme Court's holding in Gay v. Gay, 266 Conn. 641, 648, 835 A.2d 1 (2003), in which the court held that a trial court may consider a change in the value of an asset, such as real estate, when determining if there has been a substantial change of circumstances justifying the modification of an alimony award. Accordingly, the defendant's claim must fail.

The dissent suggests that we should decide another issue, which, it maintains, was raised adequately both here and in the trial court. That claim is that the court used an incorrect figure in deciding whether a substantial change in circumstance had occurred. We do not believe we should reach the issue.

To begin, the use of an incorrect figure by the court in reaching its decision is...