Simms v. Zucco

Decision Date23 August 2022
Docket NumberAC 44407
PartiesTRACY SIMMS v. AUGUSTO ZUCCO
CourtAppellate Court of Connecticut

Argued March 8, 2022

Procedural History

Action for the dissolution of a marriage, and for other relief brought to the Superior Court in the judicial district of Danbury, where the court, Winslow, J., rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the court, Shaban, J., granted the plaintiffs motion for order of notice to serve the defendant by certified mail with a motion to modify alimony; subsequently, the court, Truglia, J., granted the plaintiffs motions to open the judgment and to modify alimony and rendered judgment modifying the judgment of dissolution and ordering the defendant to pay increased alimony to the plaintiff, from which the defendant appealed to this court. Affirmed.

David V. DeRosa, for the appellant (defendant).

Tracy Simms, self-represented, the appellee (plaintiff).

Prescott, Clark and DiPentima, Js.

OPINION

PRESCOTT, J.

The defendant, Augusto Zucco, appeals from the judgment of the trial court opening the judgment of dissolution and modifying his alimony obligation to the self-represented plaintiff, Tracy Simms. On appeal, the defendant claims that the court improperly (1) determined that the plaintiffs service of the notice of her motion to modify alimony was legally sufficient, (2) opened the judgment of dissolution and modified the defendant's alimony obligation in violation of the automatic bankruptcy stay imposed by 11 U.S.C. § 362 as a result of the defendant's chapter 13 bankruptcy petition, and (3) increased his alimony obligation and ordered retroactive alimony resulting in a substantial arrearage.[1] We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history.[2] On January 15, 2014, the court dissolved the marriage of the parties. The court incorporated into the judgment of dissolution the parties' separation agreement (agreement), which was executed on the same date. Article 2 of the agreement sets forth the parties' respective rights and obligations regarding alimony. Article 2.1 of the agreement provides in relevant part that the defendant shall pay to the plaintiff $1 of alimony per year for a period of five and one-half years from the date of dissolution, that his alimony obligation "shall be completely non-modifiable as to term by way of extension," and that "assets and income from assets that are being divided pursuant to the parties' separation agreement and divorce decree, shall not be considered by a court in any future modification proceedings. Only earned income from employment shall be considered in any future modification proceedings including, but not limited to, W-2, 1099, K-l or Schedule C income."

On November 13, 2015, the plaintiff filed a postjudgment motion to modify alimony in which she sought to increase the amount of the defendant's alimony obligation. In support of her motion to modify, the plaintiff asserted that there had been a substantial change in circumstances since the judgment of dissolution, "including an increase in the defendant's income and assets and a decrease in the plaintiffs financial circumstances." The plaintiff filed, and the court granted, a motion for order of notice permitting her to serve the defendant with notice of her motion to modify by certified mail. The plaintiff then retained a Connecticut state marshal who, on December 1, 2015, sent, by certified mail return receipt requested, notice of the motion to modify to the defendant at his residence in Gettysburg, Pennsylvania. On December 7, 2015, the notice was received at the defendant's residence and signed for by his stepdaughter, Alicia Styer. The defendant does not dispute that he received the documents served by the plaintiff.

On March 21, 2016, the plaintiff filed a motion to open the judgment of dissolution on the ground that it was obtained through the defendant's fraud. Therein, the plaintiff asserted that the defendant, by and through his various business entities, had concealed substantial property, assets, and income around the time of the judgment of dissolution. The plaintiff specifically contended that the defendant's financial affidavit submitted prior to the judgment of dissolution underrepresented his income and assets by more than $400,000 and that he failed to disclose that he had purchased property in Gettysburg, Pennsylvania.[3]

On February 6, 2019, the defendant and his current wife, Hillary Styer, filed a voluntary chapter 13 petition for bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania. On May 30, 2019, the plaintiff filed in the Bankruptcy Court a motion for relief from the automatic bankruptcy stay imposed by 11 U.S.C. § 362, "so as to allow continued divorce proceedings . . . and other economic issues to proceed in the Connecticut" dissolution action. On July 2, 2019, the Bankruptcy Court issued a written order granting the plaintiffs motion for relief and terminating the automatic bankruptcy stay to permit the plaintiff to "take all actions necessary to commence or continue an action to establish or modify an order for a domestic support obligation."

On December 5, 2019, the court held an evidentiary hearing on the plaintiff's motion to modify alimony, at which only the plaintiff and her counsel appeared.[4] At the hearing, the plaintiff introduced as full exhibits her December 5,2019 financial affidavit and the defendant's April 17, 2019 schedule of assets, liabilities, and creditors filed in his bankruptcy proceeding. The plaintiff testified regarding the defendant's concealed assets and the increase in his income since the judgment of dissolution.

On January 3, 2020, the court issued an order initially denying the plaintiffs motion to modify alimony. The court reasoned that it was unable to modify the defendant's alimony obligation as requested for two reasons. First, the court held that the motion to modify was not served on the defendant in compliance with General Statutes §§ 46b-86 (a) and 52-50 (a).[5] Second, the court stated that the term of the defendant's alimony obligation had expired because, pursuant to the agreement, his alimony obligation was restricted to "five and one-half years" from the judgment of dissolution. Consequently, the court denied the plaintiffs motion to modify alimony "without prejudice to the plaintiffs right to demonstrate that the motion was served upon the defendant pursuant to § 52-50."

On January 14, 2020, the plaintiff filed a motion to reconsider the court's decision denying her motion to modify alimony. Therein, the plaintiff asserted that her motion to modify alimony "was properly served upon the defendant by a marshal pursuant to statute and pursuant to [the] order of notice" issued by the court. The plaintiff also asserted that her pending motion to open the judgment "provides a means for the court to establish a new alimony order based upon the defendant's repeated fraud upon the court, both prior to and following the entry of [the] judgment [of dissolution]." The plaintiff attached to her motion to reconsider documents evincing the certified mail service of the notice of her motion to modify alimony to the defendant's residence. On February 10, 2020, the court held a hearing on the plaintiffs motion to reconsider at which counsel for both parties attended.

On July 9, 2020, the court issued a memorandum of decision in which it granted the plaintiffs motion to reconsider, the plaintiff's motion to modify alimony, and the plaintiffs motion to open. First, the court granted the plaintiffs motion to reconsider and held that the plaintiffs service of the notice of her motion to modify alimony was proper because she had "served the defendant with a copy of the motion to modify through a state marshal pursuant to the court's order of notice in accordance with General Statutes § § 52-50 and 52-52. The service upon the defendant was sufficient to enable this court to consider making the plaintiffs motion for modification retroactive to the date of service, December 1, 2015."

Second, the court granted the plaintiffs motion to modify alimony, holding that the plaintiff had met her burden to establish a substantial change in circumstances. The court found that, during the relevant time period, the defendant's assets and income significantly had increased and the plaintiffs assets significantly had decreased. Accordingly, the court ordered the defendant "to pay the plaintiff $2000 per month in alimony on the first day of each month until further order of [the] court," that "the alimony award is made retroactive from December 1, 2015 through July 1, 2020," and that "the total amount due [was] therefore $110,000

Third the court granted the plaintiffs motion to open the judgment of dissolution. The court found that the plaintiff proved, by clear and convincing evidence, that the defendant intentionally had concealed significant assets from the court at the time of the judgment of dissolution. The court reasoned that it had "the authority to open the judgment solely as to the alimony order and modify the term of alimony as well as the amount paid" because the Bankruptcy Court's July 2,2019 order terminating the stay "authorize[d] the plaintiff to take 'all action necessary to commence or continue an action to establish or modify an order for a domestic support obligation.'" The court modified the judgment of dissolution by deleting from article 2 of the incorporated agreement the five and one-half year limitation and the restriction that future modification of alimony be based solely on...

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