Buchenholz v. Buchenholz

221 Conn.App. 132

300 A.3d 1233

Angeline BUCHENHOLZ v. Curt BUCHENHOLZ

AC 45226

Appellate Court of Connecticut.

Argued April 25, 2023

Officially Released August 15, 2023

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

Steven H. Levy, Torrington, for the appellee (plaintiff).

Prescott, Moll and Cradle, Js.

MOLL, J.

The defendant, Curt Buchenholz, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Angeline Buchenholz. On appeal, the defendant claims that (1) the court abused its discretion when it purportedly amended the plaintiff's complaint to allege intolerable cruelty, rather than the irretrievable breakdown of the marriage, as the ground for dissolution, (2) he did not receive adequate notice that the plaintiff would introduce testimony at trial in support of the purported ground of intolerable cruelty, and (3) the court abused its discretion in awarding alimony

to the plaintiff. ¹ We affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. The parties were married in July, 2006. No children were born of the marriage.

By complaint dated February 5, 2020, the plaintiff brought this action seeking dissolution of the parties’ marriage. The sole ground for dissolution alleged in the complaint was that the marriage had broken down irretrievably. ² On February 11, 2020, the plaintiff filed a motion for pendente lite alimony in which she requested alimony and a "[c]ontribution to [l]iving expenses." On March 6, 2020, the court, Danaher , J. , issued an order approving the parties’ temporary agreement for pendente lite alimony, pursuant to which the defendant would pay the plaintiff $400 per month in pendente lite alimony, the plaintiff was permitted to spend up to $1200 per month using the parties’ joint credit card in order to pay for "necessary expenses," and the defendant would be responsible for paying the credit card balance.

The matter was tried to the court, J. Moore, J. , on April 8, April 21, May 13, June 24 and October 27, 2021. The parties were the only witnesses who testified at trial, and several exhibits were admitted into the record.

On December 23, 2021, the court issued a memorandum of decision in which it dissolved the parties’ marriage on the ground that the marriage had broken down irretrievably. In connection with the dissolution of the parties’ marriage, the court ordered, inter alia, that (1) the defendant pay the plaintiff $425 per week in alimony for a period of nine years, and (2) "[e]ach party may keep all firearms ... presently in their possession .... [T]he plaintiff may keep firearms presently in her possession or control that the defendant claims to be his." This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

We first address the defendant's claims that (1) the trial court abused its discretion when it purportedly amended the plaintiff's complaint to allege intolerable cruelty as the ground for dissolution of the parties’ marriage, and (2) he did not receive adequate notice that the plaintiff would introduce testimony to support the ground of intolerable cruelty, such that his rights to due process pursuant to the federal and state constitutions were violated. These claims are unavailing.

The following additional facts and procedural history are relevant to our resolution of the defendant's claims. As stated previously, both parties testified at trial. The court determined that the plaintiff's testimony was credible and concluded that the plaintiff was not at fault for the irretrievable breakdown of the parties’ marriage. Specifically, the court found credible the plaintiff's testimony regarding several incidents of violent sexual intercourse with the defendant and an incident of spousal sexual assault that occurred in May, 2007 (May, 2007

incident). The court also found that "[t]he defendant physically abused the plaintiff on at least one occasion" and that, "[n]ear the end of their time living together, the defendant would often disappear, lie about his whereabouts, and return to the marital home intoxicated." ³ The court determined that the defendant's testimony was not credible, stating that "the court simply cannot believe the defendant's testimony as to the [May, 2007 incident]." The court also found the defendant's testimony regarding the other incidents between the parties to be "a weak and unsuccessful attempt to distract the court from the substantive issue of whether he participated in such violent [encounters]."

The court ultimately concluded that "the defendant's behavior [was] the primary cause of the irretrievable breakdown of the parties’ ... marriage" and dissolved the marriage "on the ground of irretrievable breakdown caused ... by the defendant's fault." In concluding that the parties’ marriage had broken down irretrievably on the basis of the defendant's fault, the court explained "that the cause of the irretrievable breakdown ... is the defendant's physical and sexual abuse of the plaintiff. An irretrievable breakdown may result from abusive behavior. ... Moreover, although fault was not [pleaded by the plaintiff], the court has the authority to amend [the complaint] to conform to the proof even after the evidence has been concluded. ... The court amends the [complaint] to conform to the extensive proof of the defendant's fault." (Citations omitted.)

A

The defendant claims that the court abused its discretion when it purportedly amended the plaintiff's complaint to allege intolerable cruelty as the ground for

the dissolution of the parties’ marriage. We are not persuaded.

Ordinarily, we review a claim concerning an amendment to a pleading for an abuse of discretion. See, e.g., JPMorgan Chase Bank, National Assn. v. Virgulak , 192 Conn. App. 688, 718, 218 A.3d 596 (2019) ("[a] trial court has wide discretion in granting or denying amendments to the pleadings and only rarely will this court overturn the decision of the trial court" (internal quotation marks omitted)), aff'd, 341 Conn. 750, 267 A.3d 753 (2022). Resolving the defendant's claim, however, "requires us to interpret the court's judgment. The interpretation of a trial court's judgment presents a question of law over which our review is plenary. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. ... The determinative factor is the intention of the court as gathered from all parts of the judgment. ... Effect must be given to that which is clearly implied as well as to that which is expressed. ... The judgment should admit of a consistent construction as a whole. ... [W]e are mindful that an opinion must be read as a whole, without particular portions read in isolation, to discern the parameters of its holding." (Internal quotation marks omitted.) In re November H. , 202 Conn. App. 106, 118, 243 A.3d 839 (2020).

Put simply, there is nothing in the court's decision demonstrating that the court amended the plaintiff's complaint to allege intolerable cruelty, pursuant to General Statutes § 46b-40 (c) (8), as the ground for dissolution in the present case. The court did not state that it had dissolved the parties’ marriage on the ground of intolerable cruelty. See Evans v. Taylor , 67 Conn. App. 108, 114, 786 A.2d 525 (2001) ("[w]hether intolerable cruelty exists or not in a particular case is ordinarily a conclusion of fact for the trier to draw" (internal quotation marks omitted)). Instead, the court expressly

stated that it had dissolved the marriage "on the ground of irretrievable breakdown," which was the sole ground for dissolution alleged in the plaintiff's complaint. ⁴ The court further determined that "the primary cause of the irretrievable breakdown" was the "defendant's behavior," namely, his physical and sexual abuse of the plaintiff as evinced by the plaintiff's testimony, which the court found to be credible. In other words, the court found the defendant to be at fault for the irretrievable breakdown of the marriage, which was a proper finding for the court to make. See, e.g., Sweet v. Sweet , 190 Conn. 657, 659–60, 462 A.2d 1031 (1983) (rejecting claim that, because irretrievable breakdown was only ground alleged in plaintiff's dissolution complaint, court was prohibited from considering fault in awarding alimony and assigning property); id., at 660, 462 A.2d 1031 ("[U]nder the statutes governing the assignment of the property of the parties or the award of alimony in a contested proceeding, the court is required to consider the causes for the dissolution of the marriage. General Statutes §§ 46b-81, 46b-82. ⁵ These statutes are not inconsistent with those establishing the grounds for a dissolution. ... If ... the parties choose to litigate the issues of alimony or division of property the causes for the dissolution must be considered by the court. The contention of the defendant, therefore, that a determination of irretrievable breakdown precludes the court from considering the causes of the dissolution in making financial awards is erroneous." (Footnote added.)).

Insofar as the court stated that it had "amend[ed] the [complaint] to conform to the extensive proof of the defendant's fault," we do not construe this statement to reflect that the court substituted intolerable cruelty as the ground for dissolution in the present case. Read in the context of the court's decision as a whole, this statement demonstrates that the court recognized the plethora of evidence establishing that the defendant was at fault for the irretrievable breakdown of the parties’ marriage.

In sum, we conclude that the court did not amend the plaintiff's complaint to allege intolerable cruelty as the ground for dissolution in the present case. Instead, the decision reflects that, on the basis of the evidence in the record, the court dissolved the parties’...