M. S. v. P. S.

• Citation: 203 Conn.App. 377,248 A.3d 778
• Decision Date: 23 March 2021
• Docket Number: AC 41790
• Court: Connecticut Court of Appeals
• Parties: M. S. v. P. S.

203 Conn.App. 377

248 A.3d 778

M. S.

v.P. S.^*

AC 41790

Appellate Court of Connecticut.

Argued December 3, 2020

Officially released March 23, 2021

Logan A. Carducci, Hartford, for the appellant (defendant).

Danielle J. B. Edwards, for the appellee (plaintiff).

Bright, C.J., and Alvord and Alexander, Js.

ALVORD, J.

The defendant, P. S., appeals from the judgment of dissolution and the pendente lite order of the court awarding the plaintiff, M. S., attorney's fees.¹

On appeal, the defendant claims that the court abused its discretion in (1) entering an excessive support order that consumes approximately 90 percent of the defendant's income and leaves him with insufficient income to pay for his basic needs, (2) entering an order permitting the plaintiff to relocate thirty-five miles from her current residence rather than the mutually agreed upon thirty-five miles from the other party's residence, and (3) awarding the plaintiff attorney's fees when the amounts billed were excessive and unreasonable. We affirm the judgment of the court.

The record reveals the following relevant facts and procedural history. The parties were married on March 1, 2008, and are the parents of two minor children. The plaintiff initiated this dissolution action in September, 2017. The plaintiff also filed, pursuant to General Statutes § 46b-15, an application for relief from abuse seeking a temporary restraining order against the defendant. After a three day hearing, the court, Hon. Sydney Axelrod , judge trial referee, issued a restraining order on September 29, 2017.

On October 13, 2017, the plaintiff filed a motion for attorney's fees pendente lite, and the court, Eschuk, J. , held a hearing on February 5 and May 31, 2018. On May 31, 2018, the court ordered the defendant to pay $75,000 in attorney's fees to counsel for the plaintiff. On June 20, 2018, the defendant appealed from the attorney's fees order. Also on June 20, 2018, the plaintiff filed another motion for attorney's fees pendente lite. On November 30, 2018, following an eight day trial in the dissolution action, the court, Hon. Sidney Axelrod, judge trial referee, ordered the defendant to pay an additional $15,000 in attorney's fees to counsel for the plaintiff.

Also on November 30, 2018, the court issued its memorandum of decision, in which it dissolved the parties’ marriage and entered various financial and custody orders. In its memorandum of decision, the court found that the plaintiff had obtained associate's and bachelor's degrees in fashion in 2000. Although she had worked in fashion prior to the marriage, she did not work in that industry during the marriage and did not intend to return to that industry. The plaintiff intended to pursue master's and doctorate degrees in clinical psychology at the University of Albany, and she had been notified that her application to that school had been approved. She could afford the program, which would take six years to obtain both degrees, if she were able to establish New York residency. The degrees obtained through the program would provide the plaintiff with a greater opportunity for employment and income.

At the time of the dissolution, the plaintiff's only source of income was the pendente lite support received from the defendant. Her financial affidavit reflected liabilities of $167,200, including $165,360 in fees owed to her counsel, $75,000 of which the defendant had been ordered to pay pendente lite. At the time of the dissolution, the defendant had paid $10,000 of the pendente lite fees to the plaintiff's attorney. The plaintiff held bank accounts totaling $1360 and an IRA with a balance of $7448. She previously had taken a distribution of $37,000 from her IRA to pay legal fees.

The parties owned a marital home located in Newtown. The title was held in both parties’ names. The home was purchased in 2009 for $685,000. The defendant had paid 20 percent of the purchase price in cash, and the balance was paid by the defendant's father as a gift. At the time of dissolution, the home had a fair market value of $575,000 and the equity was $575,000. The parties also owned three vehicles. The plaintiff owned, in her name alone, a 2007 Honda with equity of $4000. The defendant owned, in his name alone, a 2016 Mazda CX9 with a value of $25,273 and a loan balance of $25,273, and a 2016 Mazda CX5 with equity of $16,860.²

The defendant had obtained a bachelor's degree in engineering and mechanical industrial engineering in Rio de Janeiro in 2003, and a master's of business administration degree from the University of Chicago Booth School of Business in 2013. From January, 2007 through February, 2009, the defendant was employed by JP Morgan Securities, Inc., as an analyst. From February, 2009 through August, 2011, the defendant was employed by Syllogistic Management, LLC, which he founded and managed. From July, 2013 through February, 2014, the defendant worked as a research associate for Consumer Edge Research, LLC. From March, 2014 through June, 2016, the defendant worked as a research associate for CRT Capital Group (CRT), earning an annual base salary of $100,000 together with a discretionary bonus. In 2015, the defendant's income from CRT was a salary of $100,000 plus a $15,000 bonus. CRT ceased operations in June, 2016, and the defendant's total 2016 gross pay from CRT through that date was $80,063.83.

From November, 2016 through the time of dissolution, the defendant worked for Accordion Partners (Accordion) as a consultant. The defendant was first employed by Accordion as an associate, and "his compensation was at the rate of $4000 per week or $80 per hour for his performance of services for the company. On November 23, 2016, an addendum was entered into with an employment contract to change $4000 per week to $5000 and change his title from associate to vice president to be effective as of November 30, 2017." In calendar year 2017, the defendant earned from Accordion gross income of $133,934.20, which amounts to a gross weekly income of $2575.

Beginning January 1, 2018 through September 15, 2018, the defendant had earned from Accordion $30,604. The court rejected as not credible the defendant's claim that he earned less in 2018 because Accordion afforded him less opportunity to work. The court found that other than various trips he took,³ the defendant had offered no valid reason why he had not worked more for Accordion in 2018. The court found that the defendant had an annual earning capacity of $110,000. The court also found that the income earned by the defendant was never enough to pay all of the household expenses and that the parties relied on the defendant's assets as well as gifts from the defendant's father to cover the shortfall. The court stated that the defendant received dividend income and interest income from Brazil that was not shown on many of his financial affidavits.

The court found that the defendant had total liabilities of $128,655, including tax liabilities for the years 2016 and 2017, reflecting years where he had not yet filed his income tax return, and the plaintiff's counsel fees in the pendente lite amount of $75,000, which he had been ordered to pay. The court found that the defendant held bank accounts totaling $6285 and assets consisting of stocks, bonds and mutual funds with a value of $116,725. The defendant also held $112,907 in retirement accounts.

The court found that, at the time the parties married, the defendant held assets in Brazil with a fair market value of $913,260. At the time of the dissolution, the defendant retained certain of those premarital assets. Specifically, he held $117,375 in Brazilian stocks, mutual funds, and checking accounts. The defendant also owned in Brazil an apartment with a value of $96,691 and land with a value of $8190, both properties he had inherited from his mother in 1990. The court also found that the defendant owned a 25 percent interest in an apartment in the Top Life Housing Complex in Brazil, which proportional interest was valued at $26,522. Although the defendant did not consider this asset to be his own and he did not include it on his financial affidavit, the court found that he did own such an interest, citing evidence introduced at trial in the form of the defendant's 2007 Brazilian tax return affidavit listing the interest.

The court issued the following support orders. It ordered the defendant to pay $390 weekly in child support and 70 percent of unreimbursed medical and qualified daycare costs.⁴ The court also ordered the defendant to provide medical and dental insurance for the parties’ children. With respect to alimony, the court ordered the defendant to pay the plaintiff $600 weekly until the death of either party, the remarriage of the plaintiff, or six years from the date of the court's memorandum of decision, whichever shall sooner occur.⁵ The court stated that the provisions of General Statutes § 46b-86 (a) and (b) are applicable. The court further provided that the term of alimony could not be extended. The court found that the amount of alimony it ordered was not sufficient to maintain permanently the standard of living of the plaintiff at the level she enjoyed during the marriage and stated that an increase in income of the defendant will justify modification of the alimony order.

With respect to property division, the court assigned to the plaintiff all of the rights, title and interest of the defendant in the marital home, which the court ordered the plaintiff to sell. The court ordered $200,000 from the net proceeds of the sale to be distributed to the defendant and the remainder of the net proceeds to be distributed to the plaintiff. With respect to the parties’ vehicles, the court awarded the plaintiff the 2016 Mazda CX9, and ordered the defendant to make the monthly loan payments with respect to that vehicle. The plaintiff was to pay the insurance, property tax, maintenance and repairs on the 2016 Mazda CX9. The court awarded...