1995 and 1996 Developments in Connecticut Family Law

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 71 Pg. 133
Connecticut Bar Journal
Volume 71.





In 1995 and 1996, Connecticut's appellate courts struggled valiantly with an ever-increasing number of family law appeals. Few decisions pronounced new law. Those that did dealt with the disparate topics of pensions,(fn1) the role of counsel for a minor child in contested custody proceedings,(fn2) and post-dissolution tort claims between former spouses.(fn3) The Appellate Court increasingly issued "[t1he judgment is affirmed" per curiam decisions.(fn4) In one opinion, the Appellate Court ignored substantial precedent and found that a trial court erred because its dissolution memorandum failed to cite or refer to applicable alimony and property division statutes.(fn5) In a development likely to distress many alimony payers, the Appellate Court continued to countenance post-remarriage alimony.(fn6)

Nonetheless, Connecticut's Supreme and Appellate Courts' family law decisions, for the most part, evidence an appropriate level of appellate intervention and guidance.


A. Financial Orden

The overwhelming majority of financial dissolution of marriage appeals were dispatched with perfunctory per curiam opinions.(fn7) Even those financial dissolution appeals


which resulted in full opinions often left the trial court's decision undisturbed. (fn8) As in the past, that the Appellate Court would not have made the same financial orders had it been the trial court, did not warrant reversal.(fn9) Nor was an apparent mistake in the factual underpinning enough to cause the Court to set aside a dissolution decision.(fn10)

In Burns,(fn11) the Appellate Court was presented with, and declined, an opportunity to limit post-remarriage alimony to the extremely rare circumstances to which it had historically been relegated.(fn12) In 1993, the Court had upheld an award of alimony which the trial court had provided was to survive the recipient's remarriage where the trial court expressly explained the basis of its order.(fn13) The Burns trial court did not,


however, state the basis upon which it ordered post remarriage alimony. Holding that the trial court's memorandum of decision need not state the finding upon which an award of post-remarriage alimony is based, the Bums Appellate Court upheld the post-remarriage alimony award because the parties had been married 27 years, the payor had a history of substantial salary and bonuses, the payee had made contributions as a homemaker, and the payor had been a fault in the breakdown of the marriage. The Court did not explain why that constellation of facts allowed an award of post-marriage alimony.(fn14) While the author has not made a scientific study, the coexistence of a long marriage, high income, a homemaker, and fault is hardly exceptional and exists in a significant number of dissolution of marriage cases. Although it is unlikely that many family trial judges are inclined to award post-remarriage alimony,(fn15) Burns makes it easy to predict that requests for post-remarriage alimony will increase.

A significant number of financial dissolution trials resulted in reversals.

In Caffe v. Caffe, (fn16) the Appellate Court reversed because the trial court's memorandum failed to cite any statute or to state that the court had considered the applicable statutory criteria. The Court cited Ippolito v. Ippolito (fn17) for the proposition that the trial court "should, at least, make some reference to the statute or statutes involved so that appellate courts will have guidance as to whether a court's discretion is being exercised properly."(fn18) Ippolito, however, stands for the opposite conclusion, i.e., that the trial court's memorandum need not state that the court considered the applicable statutes or otherwise set forth the basis of its decision.(fn19) Connect


icut's appellate courts have often held that a trial court need not state the basis of its decision, even when asked to do so by a motion for articulation.(fn20) Although Caffe diverges with precedent, it is consistent with Practice Book Section 4N9. (fn21) Appellate review is more likely to be meaningful if the trial court is required to set forth the relevant Eacts and the legal rationale which underlie its decision. The Supreme Court granted certification in Caffe.(fn22) Whether the Court changes course and requires that the trial court issue more meaningful decisions is likely to be soon decided.

In Keeys v. Keeys,(fn23) a trial court once again ran afoul of the prohibition against child support orders which require payments after a child's majority.(fn24) The Keeys trial court ordered that a party maintain medical and dental insurance until a child completed college or attained the age of twenty-two.(fn25)

Another familiar pitfall, the prohibition against retroactive modification,(fn26) resulted in reversal in Wolf v. Wolf. (fn27) The trial court had entered a pendente lite order which obligated the husband to make the monthly payments on the mortgage which encumbered the marital residence. As part of its final dissolution orders, the trial court afforded the husband credit for the mortgage principal reduction which had resulted from the pendente lite mortgage payments. Consistent with precedent, the Appellate Court concluded that such an order inappropriately retroactively modified the temporary order.(fn28)


The Wolf trial court also erred when it failed to follow two fundamental tenets of Connecticut family law. (1) A trial court may only order an assignment of property in favor of the spouses; (fn29) and (2) a trial court may not obligate a party to obtain and maintain life insurance in the absence of proof of its availability and Cost (fn30)

In Krafick v. Kraftck,(fn31) the Supreme Court gave clear guidelines for the consideration of retirements in dissolution of marriage cases. The Court held:

Vested pension benefits are property to be assigned to the parties by the trial court;

The trial court has discretion in selecting and applying a valuation method to pension benefits; (fn32)

The trial court "should" find the value of the pension on the record; (fn33)

The trial court abuses its discretion when it f-ails to value pension benefits because they are illiquid;

The trial court may not assign no value to vested pension benefits, even where they are taken into account as a source of alimony.(fn34)

Several other financial dissolution of marriage appeals resulted in reversal. They included a case in which a trial court failed to include future workers' compensation benefits as an asset,(fn35) and a case where both parties conceded that the trial


court's decision was based upon a miscalculation.(fn36)

In two cases, dissolution of marriage judgments were reversed because of the conduct of the trial judge. (fn37) In one case, the trial judge, while on recess during an in-chambers trial, spoke with one of the parties.(fn38) In the other case, the trial court cut off counsel during cross-examination and prematurely ended a hearing. (fn39) The Appellate Court held that the trial court, instead of terminating the hearing, should have used its power to sanction counsel under Section 51-84 of the General Statutes.(fn40)

B. Modification of Financial Orders

The overwhelming majority of modification of alimony and child support appeals we re dispatched with perfunctory per curiam opinions.(fn41) Several significant rulings occurred in


other modification appeals.

In Denley v. Denley, (fn42) the Court clarified the Borkowski (fn43) rule and held that a modification court may consider circumstances which precede a prior modification order if consideration of those circumstances is necessary for a reasonable comparison of the circumstances at the time of the prior order and the current circumstances. In Denley, it was proper for the trial court to consider a party's 1991 income where the dissolution decree entered in March of 1992 because that consideration was needed for a reasonable comparison of the party's financial circumstances at that time with those at the time of the modification hearing in 1993.

The Denley Court continued the Appellate Court's unfortunate adherence to the Simm's rule,fn44) i.e., that a change in assets cannot be a substantial change in circumstances which wants modification. The Appellate Court held that the trial court should not have considered the profit received by the defendant from the exercise of stock options which he had owned at the time of the dissolution.(fn45) That holding does violence to Connecticut modification statute, Section 46b-86(a) of the General Statutes.(fn46) There is no basis in the statute for


treating a change in assets as being different than a change in income. Simms is also inconsistent with precedent.(fn47) Because Simms was poorly reasoned,(fn48) the Supreme Court should revisit the rule which precludes considering an increase in the value of an asset owned at the time of the dissolution decree as a substantial change in circumstances.(fn49)

In two cases, (fn50) the Appellate Court limited to prospective application the Favrow v. Vargas (fn5l) requirement that the trial court may not deviate from the child support guidelines without first findin , on the record, the amount of support indicated by the guidelines. In another case, the Court strictly construed the procedures for taking an appeal from a magistrate's modification decision.(fn52)

Two significant modification reversals (fn53) involved post judgment jurisdiction and the evidentiary impact of a previous modification denial. In Cashman,(fn54) the Court held that Section 46b46(b) of the...

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