1998 Developments in Connecticut Family Law

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 73 Pg. 92
Connecticut Bar Journal
Volume 73.




The Connecticut Supreme Court's interest in family law awakened. The Court heard nine family appeals, more than it had heard in any year since the creation of the Appellate Court. Justice Katz stepped to the forefront. As the year progressed, her opinions generated controversy, often occasioning concurring and dissenting opinions. Her opinions were anything but conventional. They, at times, afforded the trial court much less discretion than traditional jurisprudence would have otherwise dictated. The Supreme Court's decisions were influenced, to a large degree, by how well the trial court's results coincided with the majority's perception of fairness.

The Supreme Court's family law opinions were also significant because they dealt with broad issues of first impression. Justice Katz wrote controlling opinions in cases that involved burden of proof and the applicable criteria in a case where a parent wishes to relocate a child away from a noncustodial parent,(fn1) whether unvested stock options are property or marital property which may be divided in a dissolution of marriage case,(fn2) whether, and to what extent, an unliquidated personal injury claim is property or marital property which may be divided in a dissolution of marriage case,(fn3) whether a trial court may properly include a parent's cohabitant's contributions to their shared living expenses as income of the parent for purposes of determining child support under the child support guidelines,(fn4) whether Social Security disability dependency benefits should be included in the disabled parent's income for purposes of determining child support under the guidelines,(fn5) and whether a party who has been found to have overpaid alimony can, nonetheless, be properly found to be in contempt.(fn6) Other Supreme Court decisions held that, an appeal notwithstanding, the trial court may not refuse to hear motions,(fn7) that a medical degree is not property which may be divided in a dissolution of marriage case,(fn8) and that the trial court may, incident to a dissolution of marriage, decide custody of a child not of the marriage because born to a surrogate and not adopted.(fn9)

No Appellate Court decision approached the importance of any of those Supreme Court decisions.


Justice Katz's opinions are replete with dicta and discussions of policy. Nonetheless, her decisions seem, ultimately, to be more concerned with her perception of the fairness of the trial court's decision. And, Justice Katz appears to view fairness more from the perspective of the alimony or support payee and the custodial parent than from the perspective of the alimony or support payor and the noncustodial parent.

The first, and most mundane, of Justice Katz's opinions was Jenkins.(fn10) The trial court had held that while Social Security disability dependency payments were to be credited against the disabled parent's child support obligation, they were not to be included in his income when calculating that obligation.

The Jenkins Court disagreed. While the child support guidelines expressly provide that any Social Security payments are to be credited against the payor's child support obligation,(fn11) the Court stated that the guidelines do not directly include those payments in, or exclude them from, the disabled parent's income.(fn12) Embarking upon an extensive analysis of the child support statutory scheme, the child support guidelines, the law in other jurisdictions, and applying a dose of common sense, the Court correctly concluded that disability dependency payments should be included in the income of the disabled parent.

Unkelbach,(fn13) the next Justice Katz opinion, was the last time in 1998 that she would write for a unanimous court in a family appeal. The facts were troublesome. The defendantfather, Mr. McNary, had formed a business and transferred ownership of it to his domestic companion. Over the course of the ten months preceding a modification of child support hearing, the domestic companion received seven thousand two hundred dollars from that business. She contributed her personal funds to a joint account from which her expenses and many of those of Mr. McNary were paid, including all mortgage, home equity loan, and utility payments on a home occupied by them and owned by him. The'trial court had little difficulty finding that one-half of those contributions should be added to the defendant-father's income and that his child support obligation under the guidelines should be calculated accordingly.

Justice Katz agreed. She deftly stepped past what appears to have been a Child Support Guidelines Commission statement to the contrary:

Public commenters [sic] were strongly split on whether or not to consider the income of a subsequent spouse or other domestic partner in the calculation of support. The commission has decided to maintain in these regulations the existing approach of not considering such income as available for support.... Moreover, there is under Connecticut law no legal basis for imputing support liability to such a person.(fn14)

Justice Katz noted that the guidelines only expressly preclude consideration of income of a domestic partner but do not expressly preclude consideration of gifts and contributions from that partner. She found persuasive a series of pre-guidelines cases which allowed the trial court to consider gifts as income.15 Justice Katz opined that including gifts from a domestic partner did not pose the problems that including a domestic partner's income would. According to the Court, including gifts: (1) would be less complicated than including income; (2) would not impact on the domestic partner's obligations to her dependents because, presumably, if she could not afford to make the gifts they wouldn't have been made; and (3) would not impute liability to the domestic partner because "a donor is entitled to cease making gifts at any time and, at such time as that occurs, the parent may seek modifi.cation of the child support obligation based upon the resulting reduction in income."(fn16) With that statement, Justice Katz may have relegated the rule of Unkelbach to application in cases involving the uninformed. Those represented by counsel are not likely to be careless enough to create or continue a situation where a domestic partner makes contributions to a support payor's living expenses and thereby increases his support obligation.(fn17) Nonetheless, in Unkelbach, because the domestic partner had continued to make contributions up to the date of hearing, the support payor's obligation increased and the support payee benefitted from having child support which reflected those contributions.(fn18)

The Supreme Court was unified in Unkelbach; there were no dissents or concurrences. That was the last time in 1998 that the Court would be unified behind Justice Katz in a family appeal.

The first sign of Supreme Court family discord was Doe v. Doe,(fn19) a rare Supreme Court family opinion where Justice Katz was in the minority. In Doe, the Court ruled that the trial court, in a dissolution of marriage case, hasjurisdiction to determine custody of a child who is not a child of the 'marriage.

Weeks later, Justice Katz's opinion in Eldfidge v. Eldfidge(fn20) held sway over a divided Court.

Eld,ridge involved a seemingly mundane issue: Did the trial court abuse its discretion in finding Mr. Eldridge to be in contempt? The Eldridges had been divorced in 1984.(fn21) The trial court had ordered that Mr. Eldridge pay alimony and that "[o]ne half of the amount by which [Mrs. Eldridge's] earnings exceed $25,000 shall be deducted from the periodic unallocated alimony and support hereinbefore awarded."(fn22) Several years later, Mrs. Eldridge became full-time employed and earned more than $25,000 annually. Mr. Eldridge did not learn of that until years later. When he found out, he asked her for documentation of her earnings. She declined to provide it. Mr. Eldridge stopped paying alimony and, a few months later, filed a motion which asked that the court order Mrs. Eldridge to disclose her earnings. She responded with a motion for contempt.(fn23) The trial court found that Mr. Eldridge owed $47,708, but Mrs. Eldridge owed him $57,765. In other words, there were no alimony arrears and Mr. Eldridge was entitled to a credit of $10,057. But, because Mr. Eldridge had stopped paying alimony, the trial court found him to be in contempt. Mr. Eldridge appealed.

Justice Katz, writing for the majority, correctly stated that review of contempt is limited to questions of jurisdiction and whether the act for which the penalty was imposed could constitute a contempt. Mr. Eldridge unsuccessfully claimed that his good faith should have precluded a finding that he was in contempt. The gist of his argument was that because he was entitled to credits and was found to have overpaid alimony, he should not have been found to be in contempt of his obligation to pay alimony.

In rejecting that contention, the Court "interpreted" the original decree of dissolution of marriage to be not selfeffectuating.(fn24) Despite the clear language of the decree, the majority construed it to obligate Mr. Eldridge to obtain a judicial determination before offsetting alimony by the amount of any credit. The Court's conclusion is inconsistent with the plain language of the judgment. It is hard to imagine language any more self-effectuating than the language of the original judgment: "[o]ne half of the amount by which her earnings exceed $25,000 shall be deducted from the periodic unallocated alimony and support." The majority's interpretation of that language caused Justice Berdon, joined by Justice McDonald, to dissent.(fn25)

Eldridge also involved an...

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