Carten v. Carten

203 Conn.App. 598

248 A.3d 808

Donald George CARTEN, Jr.

v.Judy Junying CARTEN

AC 41858

Appellate Court of Connecticut.

Argued January 13, 2021

Officially released March 30, 2021

Jeffrey D. Ginzberg, Seymour, for the appellant (defendant).

Maria F. McKeon, for the appellee (plaintiff).

Elgo, Suarez and DiPentima, Js.

DiPENTIMA, J.

The defendant, Judy Junying Carten, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Donald George Carten, Jr. The defendant claims on appeal that the court should have awarded her alimony. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The parties were married on June 27, 1999, in Orange and had two minor children at the time of the dissolution. In February, 2017, the plaintiff commenced this dissolution action. The court dissolved the marriage on June 26, 2018, finding that it had broken down irretrievably, and that the defendant "[was] more at fault for the irretrievable breakdown of the marriage than the plaintiff." The court did not award alimony to either party and divided the marital property between the parties. Additionally, the court found the following: "[T]he defendant wilfully violated the automatic orders ... and the May 15, 2017 court orders ... The plaintiff's pendente lite motion for contempt ... is granted. The defendant shall pay the reasonable attorney's fees and costs associated with the preparation and prosecution of the motion for contempt." This appeal followed.

During the pendency of this appeal, the defendant filed a motion for articulation regarding the court's decision to make no award of alimony. The trial court denied the motion, and the defendant filed a motion for review with this court. This court granted the defendant's motion and ordered the trial court to "articulate what the parties’ earnings and/or earning capacities were at the time of judgment, as well as the factual and legal basis for its determination that neither party would be awarded alimony with reference to the factors set forth in General Statutes [§] 46b-82 (a)." The trial court responded to this order, stating: "At the time of judgment, the court determined that the [plaintiff] had an annual gross earning capacity of $350,000 ... and a current income of $41,184 .... His sole source of income at the time of judgment was severance and unemployment compensation. At the time of judgment, the court determined that the [defendant] had an annual gross income of $150,000.... In order to determine its alimony order, the court considered the factors enumerated in § 46b-82, assessed the credibility of the parties’ testimony at trial, reviewed and considered the proposed orders ... and the parties’ written closing argument ... and reviewed the evidence before it.

"Based on this review ... the court determined ... that it was within the court's discretion to decline to award alimony to either party; that an award of alimony, given the conduct of the defendant ... would be unfair and inequitable; that based on the credible evidence before the court, the parties are able to continue to enjoy the standard of living to which they were accustomed during the marriage; that during the parties’ eighteen year marriage, they were gainfully employed, made good financial decisions and investments, accumulated substantial savings, planned well for their respective retirements, and planned well for the financing of the children's postsecondary educational pursuits; that the [defendant] was at fault for the breakdown of the marriage ... that the parties were in good health at the time of the trial; that both parties are well educated with significant employment experience, work history, and employability ... that the [defendant] came to the marriage with approximately $20,000 more than the [plaintiff] [and that] [t]he parties grew their estate together during the marriage with steady employment, ample income, and financial acumen ... in spite of the [defendant's] spending and hoarding habits and lack of accountability for moneys spent once the [plaintiff] filed for divorce; and that the division of property ... and other assets, as well as the agreed upon parenting plan ... did not warrant an award of alimony to either party."

The standard of review in domestic relations cases is well established. "[T]his court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case ...." (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski , 228 Conn. 729, 739, 638 A.2d 1060 (1994). "Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Anderson v. Anderson , 160 Conn. App. 341, 344, 125 A.3d 606 (2015). "In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action." (Internal quotation marks omitted.) Merk-Gould v. Gould , 184 Conn. App. 512, 516, 195 A.3d 458 (2018).

According to the defendant, "[t]his is a case in which the trial court should have at least awarded nominal alimony." In support of her claim, the defendant asserts that "the court focused on the defendant's alleged bad behavior ... gave scant attention to the issue of alimony and why it decided not to award even nominal alimony in a long-term marriage involving middle-aged people ... [and] gave no attention to the defendant's sublimating herself for the plaintiff's financial betterment during the marriage and the plaintiff's superior earning capacity."¹ (Footnote omitted.) The plaintiff argues in response that the court properly applied the statutory provisions and considered the evidence before it. We agree with the plaintiff.

As the court stated in its articulation, it considered "the factors enumerated in § 46b-82, assessed the credibility of the parties’ testimony at trial ... and reviewed the evidence before it" in determining that no award of alimony should be made. Section 46b-82 (a) provides in relevant part: "In determining whether alimony shall be awarded ... the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the ... dissolution of the marriage ... the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment."

In its memorandum of decision, the court made the following findings: "The [defendant] is more at fault for the irretrievable breakdown of the marriage than the [plaintiff].... Based on the credible evidence before the court and considering the factors required by § 46b-82, an award of alimony for either party is unwarranted.... The defendant's testimony regarding the $20,000 received by the parties from her mother, the source of the shoebox money ($13,380), the rental of the ... beach houses ... and income from those beach houses is not credible."² In its articulation, the court also found that "the parties are able to continue to enjoy the standard of living to which they were accustomed during the marriage ... the [defendant] was at fault for the breakdown of the marriage ... the parties were in good health at the time of the trial; that both parties are well-educated with significant employment experience, work history, and employability ... [t]he parties grew their estate together during the marriage with steady employment, ample income, and financial acumen ... in spite of the [defendant's] spending and hoarding habits and lack of accountability for moneys spent once the [plaintiff] filed for divorce; and [because of] the division of property ... and other assets, as well as the agreed upon parenting plan," no award of alimony was warranted. The defendant challenges none of the factual findings that supported the court's decision not to award alimony. Further, § 46b-82 (a) provides in relevant part that, "[i]n determining whether alimony shall be awarded ... the court shall consider the evidence presented by each party" and also directs the court to consider the statutory factors; this is what the court did. Accordingly, the court did not abuse its discretion by declining to award alimony to the defendant based on its consideration of the evidence and factors set forth in § 46b-82 (a).

Furthermore, the cases cited by the defendant are clearly distinguishable from the present case. In Casey v. Casey , 82 Conn. App. 378, 844 A.2d 250 (2004), the opening sentence of this court's opinion sets the stage as to why it does not support the defendant's position: "This case represents one of the very rare matrimonial cases in which a disappointed party successfully argues that the financial orders entered incident to a dissolution action exceed the broad discretion of the trial court." (Emphasis added.) Id., at 379, 844 A.2d 250. In Casey , the parties were married in June, 1996, and the plaintiff husband filed a dissolution action in May, 2001. Id., at 380–81, 844 A.2d 250....