Appeals in Marital Dissolution Actions: Reconstructing the "mosaic"

• Publication year: 2021
• Pages: 125

Connecticut Bar Journal Volume 73.

73 CBJ 125. APPEALS IN MARITAL DISSOLUTION ACTIONS: RECONSTRUCTING THE "MOSAIC"

APPEALS IN MARITAL DISSOLUTION ACTIONS: RECONSTRUCTING THE "MOSAIC"

By LOUIS PARLEY(fn*)

In all appealed cases in which error is found, the nature and extent of the relief to be rendered by the appellate court is an issue: whether judgment will be directed or the case remanded for further proceedings, including a new trial, or some other relief ordered, is always a concern.(fn1) This issue warrants particular attention in appeals from marital dissolution decrees, as the appellate courts have developed a "rule," which results in a remand of the case for a completely new trial if any error is found with regard to any element of the decree.(fn2) This article contends that the rule is inappropriately stated, which has hindered an understanding of how it is substantively applied. To solve that problem, a restatement of the rule in a manner that is clearer, more consistent with family law jurisprudence, and allowing for greater predictability of outcome is proposed. An analysis of the existing cases under the "new" rule is provided, which, it is submitted, supports the approach proposed.

I. THE "MOSAIC LAW"

The "rule" under consideration first appeared in the Appellate Court opinion in Ehrenkranz v. Ehrenkranz,(fn3) and was then adopted as the general standard by the Supreme Court in Sunbury v. Sunbury.(fn4) The essential statement of the rule appears in Ehrenkranz:

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.(fn5)

The import of the rule is that in any case in which the interdependency of the elements appears, a remand for a new trial will be required

The initial problem with the statement of the rule is that it appears applicable in only a limited number of cases, those being "complicated" dissolution cases; yet, no guidance is provided in either Ehrenkranz or Sunbury as to how to distinguish such cases from "uncomplicated" ones. In fact, the application of the rule has become the "rule" rather than the exception.(fn6)

It was also not clear from the initial statement of the rule which party bore what burden of persuasion: did the appellant have to convince the court that a "mosaic" was at issue, or did the appellee have to argue that the error could be isolated and that the case did not have to be fully remanded? The history of its application suggests that the burden is on the appellee, but that is apparent only from a review of the outcomes of the post-Ehrenkranz/Sunbury cases, and is not stated anywhere in any opinion.

The problems with the rule are highlighted in the one judicial opinion that has sought to synthesize the rule. This effort appeared in the Superior Court decision in Wendt v. Wendt.(fn7) What is most significant about the analysis is that it reflects an effort to translate a rule designed for appellate decision-making into a guideline for trial court decision-making, and it is this effort that most identifies the problem with the rule: it really is not consistent with the basic jurisprudence controlling how the trial courts should approach deciding a marital dissolution action. While that may not be a problem if it were clear that the rule was applicable only in appeals, the fact is that the rule is formulated with a focus on the trial court decision-making process, and that creates the problems.

II. THE "COMPLEX EDIFICE"

An examination of the statutory and common-law rules outlining the decision-making process to be followed by a trial court deciding a marital dissolution case identifies a more lineal approach than is suggested by a "mosaic" concept. These rules suggest that the decision in every dissoludon case involves the building of an "edifice."

The first decisions that must be made are the resolution of child custody and visitation arrangements. This is the initial step because of the impact it has on the financial aspects of the case. For example, it relates to the property division by affecting the assignment of the use and occupancy of the family residence, if not the outright ownership.(fn8) Further, the alimony statute requires that the court consider the custodial arrangements when making an alimony order, by virtue of the provision that requires the court to consider the "desirability" of the custodial parent's "securing employrnent."(fn9) And, of course, child support orders are affected by the custodial arrangements.(fn10)

The division of property between the parties is the next step. Under the statutes, this must precede the alimony determination, as the court is directed to take the property division into consideration in the alimony determination.(fn11) It also must precede the child support element, as all of the resources of each of the parties are relevant to the child support orders, whether as a deviation criterion,(fn12) or because the over-all economics of the family make the guidelines inapplicable or because the property produces income.(fn13)

The next issue to be addressed must be the child support orders. The primacy of child support over alimony is reflected in the child support guidelines.(fn14)

The court may then focus on the alimony issue. To reiterate, this allocation of the alimony decision to this penultimate place in the structure is directed by the alimony statute, which, as discussed above, places it after the custodial and property assignment determinations, and by the child support guidelines.(fn15)

The final element is the issue of counsel fees. This becomes the last issue on two principal bases: first, there is the statutory requirement that the criteria of the alimony statute be applied to the counsel fee determination, which imports the structural analysis discussed in the preceding paragraph,(fn16) and, second, there is the direction from the Supreme Court that counsel fees be considered after all of the other financial orders have been rendered.(fn17)

In the light of this "lineal" analysis of the applicable decision-making guidelines, the decision in any marital dissolution action is more of a "complex edifice" than a "mosaic." In the context of this new metaphor, the "mosaic" analysis, as recognized by judge Tierney in Wendt, is applicable only to each of the independent levels, and addresses the positioning of the criteria applicable to each of those different aspects of the case. The principal impact of this reconceptualization is that the issue of whether the whole case must be remanded for a new trial will turn on what level of the "structure" the defect appears in: a problem in the "upper floors" may not threaten the lower levels, thus requiring only a partial remand.

The suggestion that a new approach should be taken toward analyzing family cases on appeal would seem to carry with it the implication that the outcome of some or all of the "mosaic" cases would be altered. In fact, as illustrated below, that is not the case; instead, what emerges is a clearer understanding of the outcomes of cases and why they were remanded - or not remanded - for a new trial.

III. THE "MOSAIC" CASES

The cases reviewed in this portion were all cases in which the appellate courts applied the "mosaic rule" and remanded each case for a full retrial of the financial issues. Each case is reanalyzed in light of the "complex edifice" approach.

Child Custody. The error in Tabackman v. Tabackman(fn18) was the award of joint custody, although neither party had requested that outcome in their pleadings. Since "the issues involving custody of the minor children and division of property and financial orders are so interwoven,"(fn19) a remand for a full retrial was required. Since so much of the financial outcome of a case is affected (if not determined) by the custodial arrangements, a weakness in this "foundational" element would have required a new trial under the new approach There is no case in which an error in the financial orders requires a retrial of the custody arrangements.

Property Division. Remands for a full retrial of the financial orders were required in cases in which the property division order was defective. This appeared in the Ehrenkranz case itself,(fn20) as well as Carlos v. Carlos(fn2l) and Kinderman v. Kinderman,(fn22) where the errors basically involved an incorrect valuation or miscalculation of the consequences of the property division. In Krafick v. Krafick,(fn23) Watson v. Watson,(fn24) Stamp v. Visconti,(fn25) and Tyc v. Tyc,(fn26) the error was the omission of an asset from the property division analysis, which also resulted in a probable misalignment of the property division made. Since the property division has a substantial impact on the other financial orders, a meaningful defect at this level also threatens the stability of the rest of the financial structure, so retrials would be warranted under the new rule.

The Sunbury(fn27) case involved a situation where the husband's net income was actually 46% higher than reflected on his affidavit. Although the Appellate Court had remanded only for a redetermination of the alimony orders,(fn28) the Supreme Court considered the deviation significant enough to threaten the property division, as the parties' respective incomes are a meaningful element of analysis under Section 46b-81 of the Connecticut General Statutes...