Survey of 1994 Developments in Connecticut Family Law
| Publication year | 2021 |
| Pages | 115 |
69 CBJ 115. Survey of 1994 Developments in Connecticut Family Law
1994 was a year of evolution. The Supreme Court made significant new law in a few areas. (fn1) It struggled with mixed results with child support issues. (fn2) The Appellate Court continued its practice of per curiam decisions without opinions. (fn3) Even those decisions which explained the Court's reasoning were, for the most part, unremarkable. Nonetheless, both Courts' 1994 decisions demonstrate consistent concern for family law.
A. Dissolution of Marriage
1. Alimony
a. Time-Limited Awards
Once again, while the Appellate Court addressed the issue of when time-limited alimony is appropriate, it failed to enunciate a bright line test.
In Collucci v. Collucci, (fn4) a trial court's award of time-limited alimony of seven years was affirmed. The parties had a sixteen-year childless marriage. The wife's behavior was the cause for the irretrievable breakdown of the marriage. The trial court took judicial notice of
the present economic situation in the State which has, caused the elimination of many jobs, even in the [wife's] field of work, or the shortening of hours available for such jobs as were not eliminated The court's award was based on the consideration that the [wife] might be able to get some training in another source of available work, before she could rind work, or that, if the [wife] chooses to stay in her field of work, the economic situation in the State will gradually
improve so that some job will become available to her. (fn5) Over the past decade, the Appellate Court has developed the principle that it will not affirm an award of time-limited alimony unless the record reflects an appropriate reason for the trial court's award. (fn6) In Collucci, the Appellate Court sustained a time-limited alimony award despite the fact that it appeared to be based u on speculation. Whether Collucci signals a retreat from close scrutiny of time-limited awards remains to be seen. (fn7)
2. Property division
a. Fraudulent conveyances
In Farrell v. Farrell, (fn8) the Appellate Court sustained a trial court's finding of fraudulent conveyances and upheld orders which required that transferees convey property to the victim of those conveyances. The Court concluded that the orders were an appropriate exercise of the court's authority under Sections 46b-66 and 46b-81 of the General Statutes. (fn9)
The Farrell Court, however, did find error in the trial court's attorney fees award. Section 46b-62 of the General Statutes provides that "the court may order. either spouse
or either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in §46b-82." The trial court had ordered the transferees of the fraudulent conveyance to pay attorneys fees to the victimized spouse. The Farrell Court construed the statute literally and concluded that attorneys fees could be awarded only against a spouse or a parent. The wife creatively argued that the trial court had common law power to award attorneys fees as an element of punitive damages. The Farrell Court reviewed precedent and held that "wanton or willful malicious misconduct" is required for the court to be authorized to make an award of attorneys fees. The trial court had not made such a finding. The Appellate Court also ruled that the then-extant version of Connecticut's Fraudulent Conveyances Act, Section 52-552 of the General Statutes, (fn10) does not permit an award of attorneys fees. As a result, the portion of the trial court's orders which obligated the fraudulent conveyance transferees to pay the victim's attorneys fees was vacated. (fn11)
b. Pensions
In Askinazi v. Askinazi, (fn12) the Appellate Court held that a trial court's order that the wife continue to be named survivor of her husband's pension was within its discretion. Of greater significance in Askinazi is the Appellate Court's refusal to classify pensions as either assets or as sources of income. (fn13)
Perhaps the reason that Connecticut courts have not directly addressed [the] issue [of] classification of pension benefits as alimony or proper% [is that] it is usually not necessary. just as a pension benefit may be
viewed as an asset subject to division; it may also be viewed as a source of income from which present or future alimony or support payments may be made. Neither the legislature nor the courts have indicated any preferences for one view or the other. The approach which best suits a particular case will depend upon the individual circumstances."
c. What is an asset?
In Tremaine v. Tremaine, (fn15) the issue before the trial court was alimony. (fn16) The court included the corpus of a trust in which the ex-husband was an income beneficiary as an asset of his. The assets in the trust included the house in which the ex-husband and his second wife lived. The trust had paid fifty thousand dollars for his wedding expenses, legal fees, and loan repayment. (fn17) The ex-husband had the right, under the trust agreement, to choose an investment broker who would have the right to invest and dispose of the principal of the trust. The Appellate Court concluded that those facts, indicating "control" of the trust by the ex-husband, were a sufficient basis for the trial court to include the trust corpus as an asset of the ex-husband. (fn18)
3. Child Support
In Favrow v. Vargas (fn19), a child support dispute between a guardian and a non-custodial parent, the Supreme Court struggled to balance a major purpose of the child support guidelines, consistency, with achieving a fair result in an extremely unusual case. In Favrow I, (fn20) the Supreme Court had held that the trial court may not deviate from the guidelines "solely on the basis of the non-custodial parent's actual living expenses." (fn21) On remand, the trial court considered the income of the guardian and her husband and deviated because of the needs of other dependents, significant visitation expenses, and other equitable factors which included the non-custodial parent's living expenses. The Supreme Court again reversed. In Favrow H, it held
that because the guardian and her husband have no legal obligation to support, the court improperly considered their incomes. In a ruling with greater potential for widespread application, the Court also held that before determining whether and to what extent the award should deviate" from the guideline -required amount of child support, the trial court must first find the guideline-required amount. (fn22)
The most surprising facet of Favrow H had to do with the trial court's consideration of the non-custodial parent's expenses as a basis for deviation. While acknowledging that it would have been inappropriate for the court to ase deviation from the guidelines on the non-custodial parent's visitation expenses in the ordinary case, the Court declined to find error in the case at bar because the guardian and the non-custodial parent were involved in custody lit' ation and because the amount expended was "reasonable." (fn23) It is not easy to discern the Court's rationale in viewing incidental visitation expenses as having "elevated significance" merely because the parties were locked in a custody/visitation battle.
In a thinly disguised retreat from Favrow 1, the Court also held that it was not error for the trial court to consider the non-custodial parent's rent as a basis for deviation where the expense was reasonable and was incurred against the backdrop of ongoing custody and visitation litigation. Those factors were enough to "tip the balance." (fn24) Does Favrow H signal the Court's new willingness to approve of more trial court child support guidelines deviations? Or, instead, is Favrow H a difficult case in which the trial courts and the Supreme Court felt uncomfortable with an impoverished non-custodial parent defending against an upper-middle-class guardian's simultaneous efforts to
terminate her parental rights and obtain substantial child support? Whether the Favrow H Court's rulings which permit, in cases where the parties contest custody or visitation, living expenses to be a basis for deviation from the guidelines causes litigants to turn routine child support proceedings into custody/visitation contests remains to be seen.
New child support guidelines were promulgated in 1994. (fn25) They differ from the old guidelines (fn26) in a number of ways. The most significant changes include the creation of guidelines for the payment of arrearages, different criteria for deviation from the guidelines, an increase in applicable net income, elimination of the child's age as a factor in calculating support, a change in methodology in split custody cases, definitional changes to inclusions in and exclusions from gross income, and a new adjustment for health insurance premium costs. The guidelines now consist of fourteen pages of preamble (fn27) and twenty-two pages of guidelines regulations. (fn28)
B. Modification of Alimony and Child Support
In Borkowski v. Borkowski, (fn29) the Supreme Court limited the evidence that a trial court may entertain in a modification proceeding, at least where ayrior modification has been granted. (fn30) The Court reverse, and remanded a trial court's alimony and support modification because it had improperly considered evidence of financial circumstances that predated a prior modification.
For purposes of finding a substantial change in circumstances warranting a modification or determination of alimony, the trial court should have permitted the [moving part] to present only...
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