Papa v. Papa, (AC 17683)

• Decision Date: 21 September 1999
• Docket Number: (AC 17683)
• Citation: 55 Conn. App. 47,737 A.2d 953
• Court: Connecticut Court of Appeals
• Parties: PAULA J. PAPA v. CHRISTOPHER R. PAPA

55 Conn. App. 47

737 A.2d 953

PAULA J. PAPA v. CHRISTOPHER R. PAPA

(AC 17683)

Appellate Court of Connecticut.

Argued December 1, 1998.

Officially released September 21, 1999.

Schaller, Hennessy and Kulawiz, Js.¹ Jeffrey D. Ginzberg, with whom, on the brief, was Kenneth M. Potash, for the appellant (defendant).

Jacqueline A. Wilson, for the appellee (plaintiff).

Opinion

SCHALLER, J.

The defendant in this action for the dissolution of a marriage appeals from the judgment of the trial court. The defendant claims that the trial court improperly (1) ordered him to purchase life insurance without evidence of the cost or availability of life insurance to him, (2) determined that he was liable to the plaintiff for unpaid mortgage obligations under a pendente lite order, (3) determined his child support payments, (4) ordered him to pay child support despite a de facto shared custody agreement between the parties and (5) awarded counsel fees to the plaintiff. We reverse the judgment of the trial court in part.

The following facts and procedural history are necessary for a proper resolution of this appeal. The plaintiff, Paula J. Papa, and the defendant, Christopher R. Papa, were married on May 26, 1984, and, at the time of trial, had three minor children. The plaintiff brought this dissolution action on November 21, 1995. On January 29, 1996, the parties entered into a pendente lite agreement whereby the defendant would be responsible for paying (1) the mortgage on the marital residence, including all past due amounts and (2) life insurance premiums for the plaintiff and the children. In addition, the parties agreed to refer the dissolution matter to the family relations counselor for mediation.

On May 6, 1997, the parties reached an agreement concerning custody and visitation. That same day, the trial court rendered judgment dissolving the marriage, finding that it had broken down irretrievably. Because the parties could not agree on the financial issues, the matter was continued to a later date by the court for a hearing on those issues.

On September 26, 1997, following a two day trial, the court entered orders regarding alimony, child support, insurance and other matters. As part of the dissolution decree, the court ordered the defendant (1) to pay $15,000 in alimony for mortgage payments that he had failed to pay pursuant to the pendente lite agreement, (2) to pay $350 per week in child support, (3) to purchase and maintain a life insurance policy in an amount not less than $100,000, naming the children of the marriage as beneficiaries and (4) to pay $7500 to the plaintiff for counsel fees.

I

The defendant first claims that the trial court improperly ordered him to purchase and maintain a life insurance policy naming the children of the marriage as beneficiaries. Specifically, the defendant claims that because the court did not have evidence of the availability or cost of life insurance or evidence of the defendant's insurability, the court abused its discretion. We agree. "Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts." Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990).

An order of life insurance "is very often an appropriate and necessary component of a judgment of dissolution of marriage. Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts." Michel v. Michel, 31 Conn. App. 338, 340, 624 A.2d 914 (1993).

The defendant relies on Michel to support his claim that the trial court improperly ordered life insurance. In Michel, the trial court ordered the plaintiff to purchase and maintain a life insurance policy of $50,000 "`with the defendant as irrevocable beneficiary until such time as the youngest child reaches the age of eighteen.'" Id., 339. At the time of the dissolution, the plaintiff did not have life insurance. Id., 340. Neither party presented any evidence of the availability or cost of such insurance, or of the plaintiffs insurability. Id. We reversed the trial court's judgment, concluding that the trial court had entered an order with which the plaintiff might not have been able to comply. Id., 341. As a result, we remanded the case to the trial court for a new trial on all financial matters, since the trial court, without knowing the cost of the life insurance, entered orders that may have been too high or too low, depending on the cost of the insurance. Id.

Our review of the record in this case reveals that the trial court's order regarding life insurance lacks a reasonable basis in the facts. See Lake v. Lake, 49 Conn. App. 89, 92, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998); Michel v. Michel, supra, 31 Conn. App. 341. The defendant's financial affidavit did not indicate that the defendant had an insurance policy on his life at the time of dissolution. The trial court also had no evidence before it indicating whether the defendant, for health reasons or otherwise, was insurable. While the court commendably attempted to ensure that funds would be available for the support of the plaintiff and the children in the event of the defendant's death; see Michel v. Michel, supra, 340; we conclude that the trial court did not have evidence before it that would create a proper foundation for such an order.

The plaintiff argues that the trial court did, in fact, have evidence of the cost and availability of life insurance to the defendant because "the court knew the defendant's life insurance was available via the Pendente Lite Stipulation Agreement. Further, the cost of the insurance was not something the trial court had to reach, as the defendant, in signing the document, represented to the court his ability to pay." Even though the record was not completely silent regarding life insurance, nothing in the record indicates that the defendant had the ability to pay for or even to obtain a $100,000 life insurance policy. Indeed, even though the pendente lite agreement provided that the defendant was to pay life insurance premiums for his family, that provision did not indicate whether the premiums were for a policy on the defendant, the plaintiff or their children.²

"The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." (Internal quotation marks omitted.) Mulholland v. Mulholland, 26 Conn. App. 585, 590, 602 A.2d 1054 (1992); Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). Accordingly, we must remand the matter for a new trial on all financial issues. Trella v. Trella, 24 Conn. App. 219, 223, 587 A.2d 162, cert. denied, 219 Conn. 902, 593 A.2d 132 (1991).³

Although our holding requires a new hearing on all financial matters, we will decide three of the remaining issues as they are likely to arise in the new hearing. See State v. Whitaker, 202 Conn. 259, 268, 520 A.2d 1018 (1987).

II

The defendant next claims that the trial court improperly determined that he was liable to the plaintiff for unpaid mortgage obligations under the pendente lite order. Specifically, the defendant claims that the pendente lite order merged into the final divorce decree, thereby terminating his obligation to make the back mortgage payments. We disagree.

Additional facts are necessary to our resolution of this claim. The trial court, in its memorandum of decision, ordered the defendant to pay the plaintiff $15,000, representing "the approximate aggregate amount of mortgage payments with reference to the marital residence that the defendant, despite a court order, has neglected to pay since December, 1996...." The trial court further provided that the order was not intended as "punishment," but was intended to assist the plaintiff in defraying the cost of moving to another residence and in assuming rental expenses because an action of foreclosure was pending on the marital residence.

The defendant claims that when the judgment of dissolution was rendered, the pendente lite order merged into the dissolution decree, thereby terminating his obligation to make the mortgage payments pursuant to the pendente lite order.

"Pendente lite orders, by their very definition, are orders that continue to be in force during the pendency of a suit, action or litigation." Febbroriello v. Febbroriello, 21 Conn. App. 200, 206, 572 A.2d 1032 (1990). "The fundamental purpose of alimony pendente lite is to provide the wife, during the pendency of the divorce action, with current support in accordance with her needs and the husband's ability to meet them." Smith v. Smith, 151 Conn. 292, 297, 197 A.2d 65 (1964). "[L]ike unpaid installments of an alimony award entered at the time of dissolution, accrued and unpaid installments of alimony pendente lite are, in effect, debts which have become vested rights of property which the court cannot take away." Elliott v. Elliott, 14 Conn. App. 541, 545, 541 A.2d 905 (1988); see Smith v. Smith, supra, 297.

We conclude that the unpaid mortgage obligations were, in effect, debt payments that could not be taken away from the plaintiff when the final dissolution decree was rendered. The parties agreed in January, 1996, that the defendant would make the mortgage payments on the marital home. The defendant, beginning in December, 1996, failed to make the mortgage payments. As a result, a foreclosure action was brought against the plaintiff. The trial court in its memorandum of decision stated that its order (1) equalled the approximate aggregate amount of the unpaid mortgage obligations and (2) assisted the plaintiff in defraying the cost of moving to another residence and paying rent. In light of our remand for a...