Johnson v. Johnson

• Citation: 248 A.3d 796,203 Conn.App. 405
• Decision Date: 23 March 2021
• Docket Number: AC 42984
• Court: Appellate Court of Connecticut
• Parties: Lisa R. JOHNSON v. Peter A. JOHNSON

203 Conn.App. 405

248 A.3d 796

Lisa R. JOHNSON

v.Peter A. JOHNSON

AC 42984

Appellate Court of Connecticut.

Argued January 5, 2021

Officially released March 23, 2021

Maryam Afif, with whom, on the brief, was Seth J. Arnowitz, Stamford, for the appellant (defendant).

Lisa R. Johnson, self-represented, the appellee (plaintiff).

Alvord, Cradle and Suarez, Js.

CRADLE, J.

In this matter stemming from the dissolution of his marriage to the plaintiff, Lisa R. Johnson, the defendant, Peter A. Johnson, appeals from the trial court's postjudgment modification of child support and alimony, and entry of an educational support order. The defendant also appeals from the court's judgment finding him in contempt for failing to comply with those orders. On appeal, the defendant claims that the trial court (1) committed plain error "when it imposed its own findings and interpretation" of the parties’ separation agreement, and "failed to act in a manner that projected impartiality," and (2) abused its discretion when it "issued numerous contradictory findings without changing its modified orders," entered orders "beyond the statutory time frame" and "found [him] in contempt without making [the] requisite findings." We affirm the judgment of the trial court.

The parties’ eighteen year marriage was dissolved on March 15, 2016. At the time of dissolution, the court incorporated into its judgment a separation agreement signed by the parties and their respective counsel. The separation agreement provided that the defendant would pay child support and alimony to the plaintiff, in the amounts of $1451 per month and $2166.67 per month, respectively. The agreement further provided: "This amount does not take into account any of the [defendant's] income from the rental of real properties owned partially or wholly by him. In the interest of resolving the parties’ dispute, the [plaintiff] is not pursuing her right to further discovery about the [defendant's] rental income at this time. In the event that it is determined that the [defendant] derives a benefit from rental income, the same shall be deemed a substantial change in circumstance[s] and this child support order shall be modified retroactive to the date such benefit was derived, but no earlier than the date of dissolution of the parties’ marriage." The identical language was applied to the provision of the agreement pertaining to the defendant's alimony obligation.

The separation agreement also provided that the court would retain jurisdiction to enter educational support orders for the parties’ children pursuant to General Statutes § 46b-56c.

On January 16, 2018, the plaintiff filed a motion for educational support to pay for the college expenses of the parties’ son. On February 8, 2018, she filed a motion to modify child support and alimony on the ground that she had discovered that the defendant was receiving a benefit from rental income.¹ The court, Sommer, J ., held evidentiary hearings on the motions over the course of three days.²

On December 21, 2018, the court issued a memorandum of decision granting the plaintiff's motions for postsecondary educational support and for modification of child support and alimony. The court found that the defendant receives a benefit from his rental properties and had received that benefit commencing prior to the date of dissolution. Specifically, the court found that the defendant's income was $938 per week higher than the income that he had disclosed at the time of dissolution. The court therefore concluded that the plaintiff had established a substantial change in circumstances in accordance with the parties’ separation agreement, and modified the child support and alimony orders accordingly, retroactive to the date of dissolution. The court further ordered the defendant to pay 80 percent of the college expenses for the parties’ son up to the statutory cap of the cost of in-state tuition and fees for a full-time student at the University of Connecticut pursuant to § 46b-56c (f).

On January 2, 2019, the defendant filed a motion to reargue, which the court heard on February 25, 2019. The court denied the motion orally from the bench and reiterated, also orally from the bench, its denial of that motion on February 27, 2019. The defendant and his attorney were present in court on both dates.

The defendant filed an amended motion to reargue on April 15, 2019, asking the court to address two issues, which he captioned "date of change in circumstances" and "imputed income." (Emphasis omitted.) On May 17, 2019, the court summarily denied the defendant's motion. On May 24, 2019, the court issued a "supplement" to its order denying the motion to reargue, explaining the bases for its rejection of the arguments raised in the defendant's motion.

On May 24, 2019, the defendant filed an appeal from the orders issued on December 21, 2018, and May 17 and 24, 2019. On July 18, 2019, this court dismissed, as untimely, the portion of the defendant's appeal challenging the court's December 21, 2018 decision.

On July 12, 2019, the trial court found that the defendant had failed to pay the educational support order and that his noncompliance with the order was wilful. The court further found that, as a result of the defendant's violation of the court order, the plaintiff was required to borrow funds at an interest rate of 6 percent to pay for the education of the parties’ son. The court ordered the defendant to reimburse the plaintiff for that interest. On July 23, 2019, in response to a motion for clarification filed by the plaintiff on the same day, the court issued an order clarifying the amounts of the child support and alimony arrearages due to the plaintiff, in addition to the amount of the defendant's portion of the educational support order. On July 24, 2019, the defendant filed an amended appeal to include a challenge to the court's July 12 and 23, 2019 orders. On August 1, 2019, the court issued a correction to its July 12, 2019 orders, in which it simply corrected various dollar amounts and calculations. On August 9, 2019, the defendant amended his appeal to include this order.

On July 25 and August 2, 2019, the plaintiff filed motions for contempt, alleging that the defendant had failed to comply with the educational support order or the modified child support and alimony orders. On December 20, 2019, the court granted both of the plaintiff's motions for contempt. On January 3, 2020, the defendant amended his appeal to include the court's December 20, 2019 rulings.

Despite this court's dismissal of the defendant's appeal from the trial court's December 21, 2018 orders, the defendant continued to list those orders on his amended appeal forms. On February 5, 2020, this court issued an order limiting the issues to be raised in this appeal to the orders of the trial court issued on May 17, May 24, July 12, July 23, August 1 and December 20, 2019.

I

We begin with the defendant's claims of plain error. "[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... Plain error is a doctrine that should be invoked sparingly. ... Implicit in this very demanding standard is the notion ... that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. ...

"An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable. ... This determination clearly requires a review of the plain error claim presented in light of the record.

"Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. ... [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. ... In State v. Fagan , [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007) ], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] ... unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Emphasis in original; internal quotation marks omitted.) Reville v. Reville , 312 Conn. 428, 467–69, 93 A.3d 1076 (2014).

A

The defendant first contends that the trial court committed plain error "when it imposed its own findings and interpretation" of the parties’ separation agreement in that it "impermissibly rewrote the agreement and imposed nonexistent or impossible conditions on the defendant." This argument clearly stems from the court's December 21, 2018 orders modifying the defendant's child support and alimony...