Ross v. Ross

LAURI ROSS v. BENJAMIN ROSS

AC 42950

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued May 29, 2020

October 13, 2020

Keller, Bright and Bear, Js.^*

Syllabus

The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the postjudgment orders of the trial court modifying the original unallocated alimony and child support order and awarding the plaintiff attorney's fees. The parties' separation agreement, which was incorporated into the dissolution judgment, required the defendant to pay the plaintiff 40 percent of his annual gross base cash salary and 25 percent of his gross cash bonus as unallocated alimony and child support from September, 2016 to March, 2023. In December, 2016, the defendant filed a motion for modification in which he sought to reduce his unallocated alimony and child support payments, alleging that there was a substantial change in circumstances because, inter alia, two of the parties' children had reached the age of majority. The trial court granted the motion for modification and ordered that the percentage of annual gross base salary that the defendant is obligated to pay to the plaintiff as unallocated alimony and child support be reduced to 37.5 percent, retroactive to the date the motion was filed. The court also ordered the defendant to pay $27,500 of the plaintiff's attorney's fees. Held:

1. The trial court abused its discretion when it determined the amount of the modified unallocated alimony and child support order; in modifying the original unallocated alimony and child support order, that court failed to unbundle the child support award from the alimony award and failed to consider and apply the child support guidelines and, thereby, to make a finding, as required by the guidelines, as to the presumptive amount of child support payable by the defendant to the plaintiff for the relevant dates, and, if necessary, a finding as to whether, on the basis of the child support guidelines, those amounts were inequitable or inappropriate and a deviation from the guidelines was appropriate.

2. This court declined to reach the merits of the defendant's claim that the trial court abused its discretion by ordering him to pay $27,500 of the plaintiff's attorney's fees; because that court's modified unallocated alimony and child support order will be reconsidered in its entirety on remand, its award of attorney's fees to the plaintiff was remanded for reconsideration in light of the newly calculated child support and alimony awards that will be issued at that time.

Procedural History

Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Ansonia-Milford, where the court, Malone, J., rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the court, Hon. Robert J. Malone, judge trial referee, granted the defendant's motion for modification of alimony and child support, issued certain orders and awarded the plaintiff attorney's fees and costs; subsequently, the court, Hon. Robert J. Malone, judge trial referee, issued a clarification of its decision, and the defendant appealed to this court. Reversed; further proceedings.

Janet A. Battey, with whom, on the brief, was Olivia M. Eucalitto, for the appellant (defendant).

Christopher G. Brown, for the appellee (plaintiff).

Opinion

KELLER, J. The defendant, Benjamin Ross, appeals from the judgment of the trial court issuing postdissolution financial orders, as well as awarding attorney's fees and costs in favor of the plaintiff, Lauri Ross. On appeal, the defendant claims that the court (1) abused its discretion by failing to apply the child support guidelines, (2) erred by modifying the unallocated alimony and child support order without first unbundling the child support portion from the original order, and (3) abused its discretion by ordering the defendant to pay the plaintiff's attorney's fees. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The parties' marriage was dissolved on September 4, 2013. The judgment incorporated the parties' separation agreement. The parties have four children, three of whom were minors at the time of the dissolution: Noah, who turned eighteen in 2014; Nathaniel, who turned eighteen in 2017; and Claudia, who turned eighteen in May, 2019, and graduated from high school in June, 2019. The separation agreement gave the parties joint legal custody of the minor children, and the plaintiff was given physical custody.

Pursuant to the separation agreement, the defendant was obligated to pay unallocated alimony and child support to the plaintiff. Specifically, the separation agreement provides in relevant part: "Commencing on September 15, 2013, during the lifetime of the parties and until the earlier of the [plaintiff's] remarriage, cohabitation pursuant to statute, or September 15, 2016, whichever shall first occur, the [defendant] shall pay the [plaintiff] on the 15th and last day of each month, as and for unallocated alimony and support the following: (a) [45] percent of his gross base cash salary; and (b) [35] percent of his gross cash bonus. . . .

"Commencing September 16, 2016, during the lifetime of the parties and until the earlier of the [plaintiff's] remarriage, cohabitation pursuant to statute, or March 15, 2023, whichever shall first occur, the [defendant] shall pay to the [plaintiff] on the 15th and last day of each month, as for unallocated alimony and support the following: (a) [40] percent of his gross base cash salary; and (b) [25] percent of his gross cash bonus."

The separation agreement also provides that "[t]he [defendant] shall maintain no less than $2,000,000 of life insurance as long as he is obligated to make payments to the [plaintiff] as hereinbefore set forth in [a]rticle III, and shall name the [plaintiff] as primary beneficiary of said life insurance on his life."

On November 17, 2017, the defendant filed a motion for modification of his unallocated alimony and child support payments. In his motion, the defendant alleged that the following substantial changes in circumstances had occurred since the dissolution of the marriage: "[T]hree of the parties' four minor children have emancipated.¹ . . . Upon information [and] belief, the plaintiff is engaged and is cohabiting with her fiancé. . . . Upon information and belief, the plaintiff is employed and is earning more than $25,000 per year. . . . The defendant's expenses have increased substantially because he is paying 100 [percent] of the expenses for the parties' two children who are in college. . . . Two million dollars of life insurance is no longer necessary to insure the defendant's alimony and support obligations." (Footnote added.) On the basis of these allegations, the defendant asked the court to "[r]educe the [unallocated] alimony and [child] support payments made by the defendant to the plaintiff," to "[r]educe the amount of life insurance that the defendant is obligated to maintain for the benefit of the [plaintiff]," and to "[o]rder such other and further relief as may be fair and equitable."

On February 23, 2018, the plaintiff filed a motion for attorney's fees in which she moved "under [§] 25-24 of the Practice Book, for an award of [attorney's] fees in order for her to defend and prosecute postjudgment motions."

The court held a hearing on both motions on March 29, April 2, and April 12, 2019.² Evidence at trial included the parties' past and current financial affidavits and their current child support guidelines worksheets, filed pursuant to Practice Book § 25-30. In support of her motion for attorney's fees, the plaintiff submitted an affidavit from her attorney, Daniel D. Portanova, in which he represented that he had rendered services to the plaintiff in the amount of $42,582.42 and that there remained a balance to be paid of $82.42.

The parties submitted to the court their current financial affidavits. The parties also introduced into evidence the financial affidavits that each party had submitted at the time of the dissolution of their marriage. As previously noted, the parties also submitted child support guidelines worksheets setting forth the presumptive amount of child support for the one remaining minor child. The plaintiff's worksheet showed a presumptive amount payable from the defendant to the plaintiff of $465 per week. The defendant's worksheet showed a presumptive amount payable by the defendant to the plaintiff of $480 per week.³

The defendant also testified as to additional expenses he had paid on behalf of the parties' children. Those expenses included tuition for two of the children to attend college, other college-related expenses, as well as financial assistance that he provided to the children in connection with the purchase of cars, the purchase of car insurance, the purchase of cell phones, health care costs, and other miscellaneous expenses.⁴

The court made the following findings in its April 29, 2019 memorandum of decision: "The [plaintiff] is [forty-six] years of age. She has a [general equivalency diploma] and attended Northeastern University and Southern Connecticut State University. She has been treated for depression and anxiety disorders which were diagnosed in February, 2019. She has taken various medications since November, 2018. In February, 2019, she was hospitalized for an overdose. She has a real estate license and works part-time at Bonfire Grill and earns $23 a week as a hostess. She has not worked full-time in a number of years.

"The [defendant] is [forty-seven] years of age and in good health. He attained a [bachelor of arts degree] in finance from Northeastern University. He has been employed with Cohen & Steers, and his annual salary is $330,000. Typically, he receives a cash bonus annually and restricted stock shares annually. ...