Lowe v. Lowe

Page 236

704 A.2d 236

47 Conn.App. 354

Robert T. LOWE, Jr. v. Alyce S. LOWE.

No. 15968.

Appellate Court of Connecticut.

Argued Sept. 25, 1997.

Decided Dec. 30, 1997.

Diana L. Mercer, New Haven, with whom, on the brief, was Douglas R. Daniels, for appellant (plaintiff).

Todd R. Bainer, Branford, for appellee (defendant).

Before FOTI, LANDAU and FRANCIS X. HENNESSY, JJ.

LANDAU, Judge.

In this appeal from the judgment dissolving his marriage, the plaintiff claims that the trial court improperly (1) held him responsible for the postmajority education of the children in the absence of a written agreement, (2) found that, when the parties' elder son graduates from high school, a substantial change of circumstances will occur, (3) relied on prior proceedings not a part of the trial record in its rulings, (4) included money paid as a bonus in determining child support and alimony, (5) found that there would be an increase in the plaintiff's future commission earnings, (6) calculated gross and net income, (7) found that the cause of the marital breakdown was the plaintiff's excessive drinking and involvement with another woman, (8) failed to appoint separate counsel for each child because of conflicts of interest, (9) failed to apply the guidelines for child support and failed to award child support for the child in the sole custody of the plaintiff, and (10) failed to designate the arrearage owed by plaintiff as either alimony or support.

The following facts are pertinent to this appeal. On December 21, 1995, the trial court approved a written agreement entered into by the parties that resolved the issues of custody and visitation. On April 30, 1996, the marriage was dissolved and the agreement, which gave sole custody of the minor, Robert T. Lowe III, to the plaintiff father and sole custody of the minors, Christopher Lowe and Lauren Lowe, to the defendant mother, was incorporated into the court's judgment. The court's judgment also resolved issues involving, inter alia, child support, alimony, medical insurance, postmajority education, and the division of marital property. The basis of the order requiring the plaintiff to pay for the postmajority education of the three children was the parties' oral stipulation during trial that the plaintiff would do so to the extent he is financially able. ¹

We reverse the judgment and remand the case to the trial court as to the first issue and affirm the judgment in all other aspects.

I

The most important claim before us is the plaintiff's assertion that the trial court improperly held him responsible for the postmajority education of the children in the absence of a written agreement. ² The plaintiff argues that the trial court lacked jurisdiction to enforce the parties' oral stipulation that the plaintiff would pay for the postmajority education of the children because General Statutes § 46b-66 ³ requires that agreements for postmajority support be in writing. We agree.

"It is now axiomatic that support for a minor child extends to age eighteen years only...." Arseniadis v. Arseniadis, 2 Conn.App. 239, 243, 477 A.2d 152 (1984). "The legislature amended General Statutes § 46b-66 (then § 46-49) in order to provide for the support of postmajority children only if there is an agreement to do so and if it is in writing." Id., at 244, 477 A.2d 152. "The language of the statute is clear and unambiguous and we cannot by our construction substitute other words for the words 'in writing.' " Id., at 246, 477 A.2d 152. "Absent ... a written agreement by the parties, the court does not have jurisdiction to order payment of child support beyond the age of majority and may not enforce such an order." Albrecht v. Albrecht, 19 Conn.App. 146, 155, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); see also Arseniadis v. Arseniadis, supra, at 243, 477 A.2d 152. "A lack of subject matter jurisdiction can be raised at any time and cannot be waived by either party.... [Further], [t]he parties to an action cannot confer subject matter jurisdiction on the court by their consent, silence, waiver or private agreement." (Citation omitted.) Arseniadis v. Arseniadis, supra, at 242, 477 A.2d 152.

Although we recognize that often " '[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other' "; Cuneo v. Cuneo, 12 Conn.App. 702, 710, 533 A.2d 1226 (1987), quoting Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984); this is not such a case. The plaintiff offered to pay for the children's postmajority education, and the trial court simply incorporated that offer into its proper orders. Moreover, the trial court had no jurisdiction, and, therefore, no discretion, to order postmajority support. As a result, the order of postmajority support is separate and distinct from the court's proper orders of alimony and premajority support. See Zern v. Zern, 15 Conn.App. 292, 296-97, 544 A.2d 244 (1988). Because the court had no discretion to award the postmajority support and because the other awards were appropriate, a remand to review all of the financial orders is unnecessary. See Cuneo v. Cuneo, supra, 12 Conn.App. at 710-11, 533 A.2d 1226. A remand with direction to vacate the meaningless portion of the order would in no way affect the remaining appropriate judgment rendered; it had no impact and, therefore, severance is proper.

II

In his second claim, the plaintiff asserts that the trial court improperly found that a substantial change of circumstances will occur when the parties' elder son graduates from high school. The plaintiff argues that this finding involves impermissible speculation into the future. ⁴ We disagree.

It is a general rule that "[i]n a dissolution action, marital property is valued as of the date of dissolution.... Tobey v. Tobey, 165 Conn. 742, 748-49, 345 A.2d 21 (1974); Cuneo v. Cuneo [supra, 12 Conn.App. 702, 533 A.2d 1226]. '[This] requirement is simply part of the broader principle that the financial awards in a marital dissolution case should be based on the parties' current financial circumstances to the extent reasonably possible.' Cuneo v. Cuneo, supra, at 709, 533 A.2d 1226; see Practice Book § 463." Zern v. Zern, supra, 15 Conn.App. at 296, 544 A.2d 244.

In the present case, the trial court's financial awards were based solely on the present financial circumstances of the parties. Even if we assume, arguendo, that the trial court made an impermissible finding by speculating as to the future financial circumstances of the parties, the trial court's purported finding with regard to the plaintiff's elder son was extraneous and is not binding on the parties because the issue of modification was not properly before the trial court. See Chester v. Zoning Board of Appeals, 46 Conn.App. 148, 150, 698 A.2d 370 (1997). If and when the elder son graduates from high school, or any other change of circumstances occurs, either party seeking a modification of alimony or support orders would have to prove to the trial court that a substantial change in circumstances occurred pursuant to General Statutes § 46b-86. ⁵ Therefore, we are unpersuaded by the plaintiff's argument.

III

The plaintiff's third claim is that the trial court improperly relied on previous proceedings that were not made part of the trial record in making its orders. ⁶ The plaintiff argues that the trial court may take judicial notice only of pertinent facts disclosed by the record in the case before it. We disagree.

"The trial court has the power to take judicial notice of court files of other actions between the same parties. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979)." In re Mark C., 28 Conn.App. 247, 253, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992); see also McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990) (court took judicial notice of court files from prior proceeding between parties even though files not formally made part of record at trial); Hall v. Hall, 186 Conn. 118, 124, 439 A.2d 447 (1982) (court considered previous contempt orders when considering issue of custody).

In the present case, the trial court properly took judicial notice of prior proceedings pertaining to the dissolution of the parties' marriage. Therefore, the plaintiff's claim is unpersuasive.

IV

In the plaintiff's fifth and seventh claims, he challenges the trial court's factual findings that his commissions would increase in the future and that his excessive drinking and involvement with another woman had caused the marital breakdown.

"The scope of our review of a trial court's exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.... Moreover, we do not retry the facts.... In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action.... The conclusions which we might reach, were we sitting as the trial court, are irrelevant...." (Citations omitted; internal quotation marks omitted.) Leo v. Leo, 197 Conn. 1, 4-5, 495 A.2d 704 (1985).

After a full review of the record, transcript and briefs, we conclude that the trial court could reasonably have concluded as it did. We affirm the findings of the trial court.

V

The plaintiff's fourth, sixth and tenth claims are that the trial court improperly included "one-time bonus money" paid to the plaintiff and "bonus money" withheld by his employer and not yet paid as income in calculating alimony and child support, ⁷ improperly calculated his gross and net income, ⁸ and failed to designate which part of the arrearage owed by him was alimony and which part was...