Malpeso v. Malpeso

• Decision Date: 03 May 2016
• Docket Number: No. 37203.,No. 36622 ,36622
• Citation: 138 A.3d 1069,165 Conn.App. 151
• Parties: Charlotte MALPESO v. Pasquale MALPESO.
• Court: Connecticut Court of Appeals

165 Conn.App. 151

138 A.3d 1069

Charlotte MALPESO

v.Pasquale MALPESO.

No. 36622

No. 37203.

Appellate Court of Connecticut.

Argued Dec. 14, 2015.

Decided May 3, 2016.

Barbara M. Schellenberg, with whom were Richard L. Albrecht and, on the brief, Bruce L. Levin, Bridgeport, for the appellant-appellee (defendant).

Kevin F. Collins, Stamford, for the appellee-appellant (plaintiff).

DiPENTIMA, C.J., and BEACH and SHELDON, Js.

DiPENTIMA

, C.J.

In this postdissolution marital matter, the defendant, Pasquale Malpeso, appeals from the judgment of the trial court. Although the court granted his motion to modify the original unallocated alimony and child support that was entered as part of the parties' judgment of dissolution, the defendant contends that the court (1) applied the wrong legal standard in calculating the child support component of the unallocated alimony and child support order, (2) determined the wrong effective date of the modification, (3) erroneously concluded that a lien could be placed on the defendant's assets for him to pay his alimony obligation, and (4) incorrectly stated that it lacked jurisdiction to terminate his obligation to pay alimony. The defendant further claims that the trial court abused its discretion in finding him in contempt and ordering him to pay the plaintiff's counsel fees and costs.¹ We reverse, in part, and affirm, in part, the judgment of the trial court.²

We set forth the following facts and procedural history pertinent to this appeal. The plaintiff, Charlotte Malpeso, married the defendant on August 23, 1986. On June 25, 2004, the marriage was dissolved. At that time, the parties had three minor children: a son, born in 1988; and twin daughters, born in 1993. The judgment of dissolution incorporated the parties' separation agreement (agreement) that provided, inter alia, that the defendant would pay the plaintiff $20,000 per month in unallocated alimony and child support.³ The agreement also contained a clause limiting the circumstances in which the amount and term of alimony could be modified.⁴ The judgment of dissolution was opened and modified once in December, 2005, to allow the defendant to purchase certain property from the plaintiff.

The complicated procedural history of this case began on May 25, 2011, when the defendant filed a motion to modify child support. In response, on June 17, 2011, the plaintiff filed an objection to the defendant's motion. In August, 2011, the defendant amended his motion not only to modify child support, but also to modify alimony based on the following grounds: (1) the parties' daughters had reached the age of majority and had graduated from high school; and (2) the economy of New York had undergone a substantial change as a result of a catastrophic event. The court, Wenzel, J., ruled that the only permissible ground for modification, pursuant to paragraph 3.2 of the agreement, was the claim alleging a substantial change in the economy of New York. The court sustained the plaintiff's objection to the motion on all other grounds upon which it was based. The defendant appealed from that ruling on September 6, 2011.

While the appeal was pending, the parties' litigation continued in the trial court. The seeds of this appeal were sown on September 13, 2011, when the defendant filed a motion for contempt, alleging that the plaintiff had “refuse [d] to provide reasonable support to and for the parties' children for support expenses such as clothing, necessities ... personal transportation ... grooming, etc.” Four months later, on January 25, 2012, the defendant filed another motion to modify alimony and child support. The second motion to modify was based on three grounds: (1) the parties' three children had reached the age of majority and were no longer residing with the plaintiff; (2) the defendant was paying for the adult children's college expenses;⁵ and (3) the defendant was experiencing a “downturn in [his] financial circumstances.”⁶ The defendant asked the court, on those grounds, either to reduce or to terminate his financial “obligations to the plaintiff....” The plaintiff was served with the second motion to modify on February 9, 2012. The plaintiff objected to this motion and, on June 14, 2012, filed a motion for contempt, alleging, inter alia, that the defendant was nine months (October, 2011 through June, 2012) in arrears in making his $20,000 monthly payments.

The court, Schofield, J., held multiple hearings between October and December of 2012 to resolve the following motions: (1) the defendant's motion for contempt filed on September 13, 2011; (2) the defendant's motion to modify alimony and child support filed on January 25, 2012; and (3) the plaintiff's motion for contempt filed on June 14, 2012. Before Judge Schofield ruled on the motions, this court published its decision reversing Judge Wenzel's ruling.⁷ In that year, following this court's decision, the court, Schofield, J., issued three decisions addressing these motions.

With respect to the first decision, the court's first memorandum of decision was issued on July 16, 2013, addressing all three motions before the court. In that decision, the court made the following findings: (1) the parties' three children had reached the age of majority; (2) the children were no longer living with either parent; (3) the defendant, pursuant to the agreement, was paying for the three children's college expenses; and (4) the alleged downturn in the defendant's “financial circumstances [was] speculative, and uncorroborated, indeed contradicted, by [the evidence presented].” As to the third finding, the court credited the defendant's testimony that when he started paying for the children's college expenses, he believed that the amount of his unallocated alimony and support payment would be reduced. Nonetheless, the court noted that the agreement did not provide for such a reduction; thus, it ruled that the defendant could not “now claim that the costs of college expenses are a basis for modification.” The court, however, also inserted a footnote stating that, “[u]nless, of course, those college expenses substantially changed [the defendant's] financial circumstances.”

The court granted the defendant's second motion to modify alimony and child support that had been filed on January 25, 2012. Specifically, because “the children of the marriage [had] reached the age of majority,” the court applied the child support and arrearage guidelines (guidelines), without specifying the effective year of those guidelines, to fashion a new financial order. Also, by apparently, but not explicitly, relying on the parties' current financial affidavits, the court calculated the parties' combined net weekly income to be $16,850, which, pursuant to the undated guidelines and a “declining factor, given the income of the parties,” resulted in a presumptive child support amount of $8862 per month. Accordingly, the court converted the unallocated alimony and child support into a periodic alimony order in the amount of $12,000 per month, which was reached by reducing the defendant's $20,000 monthly obligation by $8000.⁸ The modified alimony order was to become effective on July 16, 2013, the date of the court's decision.

As to the parties' respective motions for contempt, the court ruled in favor of the plaintiff on each. On the defendant's motion for contempt, it found that the plaintiff was not in contempt. On the plaintiff's motion, it found that the defendant was “in wilful and intentional violation of the court orders.” Upon finding the defendant in contempt, the court ordered him to pay the plaintiff $440,000 in arrears for failing to meet his $20,000 per month obligation for the twenty-two months from October, 2011, through July, 2013. Additionally, the court ordered the defendant to pay the plaintiff's attorney's fees and costs, totaling $41,016.18. In response to this decision, both parties filed several motions. The plaintiff filed a “motion to clarify and/or articulate” and a “motion to reopen and reargue decision.” The defendant also filed a motion to reargue.

With respect to the second decision, after the court held a hearing on the plaintiff's motion to clarify and/or articulate and the defendant's motion to reargue in October, 2013, it issued its second memorandum of decision on February 18, 2014. The court clarified its prior calculation of the presumptive child support amount, explaining that because the parties' combined net weekly income was $17,039.30⁹ and applying the guidelines with “a presumptive declining factor,” the resulting presumptive child support amount for three children was $2061 per week ($687 per child) or $8862 per month.¹⁰ Accordingly, the court ordered the “unallocated alimony to be reduced by the sum of $2061 per week retroactive to the [date of] service of the motion for modification.” In other words, the court reduced the defendant's monthly financial obligation to the plaintiff from $20,000 to $11,138 per month, retroactive to the date of service.¹¹ Then the court stated to the contrary without further elaboration: “In its [July, 2013 memorandum of decision], the court incorrectly declined to award retroactivity to the date of majority. The court now corrects that error.” The court did not specify which date of majority it intended to use, i.e., the date of majority of the son or that of the daughters.

The court's second memorandum of decision also explained other aspects of its first order. Pertinent to this appeal, the court changed its stance on the issue of college expenses. The court, “upon review of the [agreement] and its provisions for modification,” concluded that college expenses could be a “basis for modification.” Therefore, the court concluded that $32,000 per month of college expenses constituted “a substantial change in circumstances justifying a reexamination of the parties' financial circumstances pursuant to [General Statutes § 46b–82

] and Borkowski v....