Pishal v. Pishal

• Decision Date: 24 May 2022
• Docket Number: AC 43613
• Citation: 212 Conn.App. 607,276 A.3d 434
• Parties: Cathie PISHAL v. Victor PISHAL
• Court: Connecticut Court of Appeals

212 Conn.App. 607

276 A.3d 434

Cathie PISHAL

v.Victor PISHAL

AC 43613

Appellate Court of Connecticut.

Argued January 10, 2022

Officially released May 24, 2022

Leslie I. Jennings-Lax, Southport, with whom was Marissa B. Hernandez, for the appellant (defendant).

Christine M. Gonillo, for the appellee (plaintiff).

Prescott, Suarez and Bishop, Js.

PER CURIAM.

In this postdissolution action, the defendant, Victor Pishal, appeals from the judgment of the trial court denying his motion to modify his alimony payments to the plaintiff, Cathie Pishal. The defendant claims that (1) the court improperly relied on Practice Book § 15-8, which applies to civil actions and not family matters, in concluding that he did not establish a prima facie case; (2) even if the court properly relied on § 15-8, it nonetheless improperly weighed the evidence and failed to properly consider whether he had presented sufficient evidence to establish a prima facie case; (3) the court abused its discretion in concluding that he was not entitled to the termination of his alimony obligation because the plaintiff was cohabitating with a third party; and (4) the court abused its discretion in concluding that he was not entitled to a modification of his alimony obligation because of a substantial change in his financial circumstances. We affirm the judgment of the court.

The following procedural history is relevant to this appeal. On November 9, 2006, the court, Turner, J ., dissolved the marriage of the parties. The court, in its judgment, incorporated by reference a written separation agreement entered into by the parties. Section 3 of the agreement states in relevant part: "The [defendant] shall pay to the [plaintiff] alimony in the amount of $100 per week for a period of twenty (20) years. Said amount shall be modifiable upon motion submitted to the Superior Court if there is a substantial change in circumstances. Said amount shall cease upon the [plaintiff's] death, remarriage or cohabitation, or the [defendant's] death."

On June 13, 2019, the defendant filed a motion seeking the termination or modification of his obligation to pay alimony to the plaintiff. The defendant alleged that the plaintiff had been "residing with her significant other in the plaintiff's home for at least the past four years." The defendant also alleged that "the plaintiff's significant other contributes to the plaintiff's residence, altering the financial needs of the plaintiff." Additionally, the defendant alleged that, at the time of the judgment of dissolution in 2006, he was gainfully employed but that, on April 12, 2019, he "was released from his longtime employer through no fault of his own. The company downsized and terminate[d] one-third of their employees." The defendant alleged that his current income, derived from his receipt of Social Security and unemployment benefits, was less than his income at the time of the dissolution. Relying on the plaintiff's cohabitation and his decrease in income, the defendant sought, inter alia, (1) a modification of his alimony obligation to zero dollars, (2) an immediate termination of his alimony obligation, and (3) a finding that he had overpaid alimony to the plaintiff.

On October 8, 2019, the court, Gould, J ., held a hearing on the defendant's motion. At the hearing, the defendant's attorney presented testimony from both parties. ¹

The parties were cross-examined by the plaintiff's attorney. Both parties presented documentary evidence as well. After the witnesses were examined, the court asked the defendant's attorney if she wished to present any additional testimony, to which she replied, "[n]o, Your Honor." The court asked the defendant's attorney, "[m]oving party rests?" The defendant's attorney replied, "[y]es, Your Honor." Thereafter, the court denied the motion.

The court stated: "All right. ... I've listened to the sworn testimony of the parties. I've carefully reviewed the evidence that's been offered on both parties’ behalf. The gravamen of the motion filed on behalf of the defendant requires proof of cohabitation and/or a change—a substantial change in the circumstances on the part—behalf of the plaintiff. The court finds that the defendant has not proven a prima facie case of either cohabitation or a substantial change in circumstances. So, the motion is therefore denied." Immediately following the court's ruling, the defendant's attorney stated that she wanted to be heard with respect to the issue of cohabitation. The court replied that there was "nothing else that needs to be added ...." Then, the defendant's attorney stated that "we also had indicated a substantial change in circumstances was part" of the motion. The court replied, "I indicated, and I've ruled on that as well."

On October 28, 2019, the defendant, pursuant to Practice Book § 11-11, filed a motion for reargument with respect to the court's ruling as it related to both grounds on which the defendant relied in the motion for modification, namely, the alleged change in the financial circumstances of the parties and the alleged cohabitation of the plaintiff and a third party.² The court summarily denied the motion for reargument. This appeal followed.

I

We first address the defendant's claim that that the court improperly relied on Practice Book § 15-8, which applies to civil actions and not family matters, in concluding that he did not establish a prima facie case. The defendant cannot prevail on this claim.

To prevail on this claim, the defendant must first demonstrate that the court, in fact, relied on Practice Book § 15-8.³ We take note of the fact that the plaintiff did not make a motion for judgment of dismissal under this rule of practice, nor did the court dismiss the defendant's motion. In its ruling denying the motion, the court did not refer to this rule of practice. After stating that it had considered evidence presented by both parties, the court stated "that the defendant has not proven a prima facie case of either cohabitation or a substantial change in circumstances." This statement does not establish that the court relied on Practice Book § 15-8. In light of the circumstances in which it was made, the court's statement reasonably could be interpreted to mean that, in its role as fact finder, the court had evaluated the totality of the evidence and did not find the relevant factual issues in the defendant's favor.

It is well settled that the defendant can prevail on appeal not by raising the possibility that an error occurred, but by demonstrating on the basis of an adequate record that the court's ruling was erroneous. "We do not presume error. The burden is on the appellant to prove harmful error." (Internal quotation marks omitted.) Carothers v. Capozziello , 215 Conn. 82, 105, 574 A.2d 1268 (1990). The defendant has not demonstrated that the court relied on the rule of practice at issue and, thus, he is unable to demonstrate that its reliance on the rule constituted error. Accordingly, the defendant's claim fails.

II

We next turn to the defendant's three remaining claims. For the reasons that follow, we conclude that these three claims are unreviewable due to an inadequate record.

The defendant's second claim is that, even if the court properly relied on Practice Book § 15-8 and analyzed whether he established a prima facie case in support of one or both grounds set forth in his motion, the court nonetheless improperly weighed the evidence and did not properly consider whether he had presented sufficient evidence to establish a prima facie case. The defendant argues that the court's role in evaluating whether he established a prima facie case is limited to determining whether the evidence on which he relied, if taken as true and interpreted in the light most favor-able to him, supported the grounds in his motion for modification. The defendant asserts that "the trial [court] employed the wrong standard" because "[its] conclusion that these facts did not support [his] motion for modification necessarily involved the trial court's weighing the evidence ...." To prevail on this claim, the defendant must first present this court with a record of what standard the court applied when it denied the motion.

The defendant's third claim is that the court abused its discretion in concluding that he was not entitled to the termination of his alimony obligation because the plaintiff was cohabitating with a third party. To prevail on this claim, the defendant must demonstrate that the court's legal analysis of the issue of cohabitation was flawed or that its findings related to the issue were clearly erroneous. See, e.g., Cushman v. Cushman , 93 Conn. App. 186, 198, 888 A.2d 156 (2006) (standard of review applicable to cohabitation determination). "[ General Statutes §] 46b-86 (b) is commonly known as the cohabitation statute in actions for divorce. ... In accordance with the statute, before the payment of alimony can be modified or terminated [on cohabitation grounds], two requirements must be established. First, it must be shown that the party receiving the alimony is cohabit[ing] with another individual. If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient's financial needs have been altered as a result of the cohabitation." (Citation omitted; internal quotation marks omitted.) Lehan v. Lehan , 118 Conn. App. 685, 695, 985 A.2d 378 (2010).

To prevail on his fourth claim, that the court abused its discretion in concluding that the defendant was not entitled to a modification of his alimony obligation because of a substantial change in his financial circumstances, the defendant must demonstrate that the court's legal analysis of the issue of a substantial change in circumstances was flawed or that its findings related to the issue were clearly erroneous. " Section 46b-86 (a) provides that a final order for alimony ... may be modified by the trial court...