Salzbrunn v. Salzbrunn

155 Conn.App. 305

109 A.3d 937

Jacqueline SALZBRUNN

v.Dennis M. SALZBRUNN.

No. 35476.

Appellate Court of Connecticut.

Argued April 17, 2014.

Decided Feb. 10, 2015.

Richard W. Callahan, for the appellant (defendant).

Harry Gill, Ridgefield, for the appellee (plaintiff).

BEACH, SHELDON and PELLEGRINO, Js.

Opinion

BEACH, J.

The defendant, Dennis M. Salzbrunn, appeals from the postjudgment order of the trial court granting the motion for modification filed by the plaintiff, Jacqueline Salzbrunn. On appeal, the defendant claims that the court: (1) applied an improper standard when modifying the defendant's alimony and child support obligations; (2) made erroneous factual findings; and (3) abused its discretion in fashioning the modified financial orders. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant's appeal. The plaintiff and the defendant were married in October, 1987; there were four children born of the marriage. On August 16, 2011, the court dissolved the marriage and approved the parties' separation agreement, incorporating its terms into the judgment of dissolution.

During the marriage, the plaintiff worked for one of the defendant's companies, American Irrigation Systems, Inc., as a bookkeeper, but did not take a salary. During the pendency of the divorce action, until the dissolution of marriage, the plaintiff continued to work for the defendant's company as a bookkeeper and was paid a weekly gross income of $800.

Paragraph nineteen of the separation agreement, entitled “Alimony–Employment of Wife,” provided that the defendant was to employ the plaintiff as an at-will employee at his business as a bookkeeper and office manager. She was to receive $1539 per week, or $80,028 annually. Paragraph nineteen further provided that, “as an incident of her employment,” the plaintiff was to receive a company vehicle with a gas allowance not to exceed $400 per month and free medical insurance.

These financial obligations were deemed not to be “alimony.”¹ Paragraph nineteen further provided: “While the [plaintiff] shall be an at-will employee who may be dismissed at any time, and may choose to resign at any time, her termination or resignation, or any change whatsoever, in her job duties or compensation shall constitute grounds for the modification of alimony as hereinafter set forth. Said change, as aforesaid, need not be substantial to constitute grounds for the modification of alimony.” Paragraph nineteen further provided that the defendant pay the plaintiff one dollar per year in alimony.²

The salary paid to the plaintiff was agreed to constitute satisfaction of the defendant's obligations as to “total family support,” i.e., alimony and child support, but the parties also included in paragraph twenty of the agreement additional financial obligations of the defendant to the children. Paragraph twenty provided that, if the plaintiff's employment situation should change, the parties could return to court for “an adjudication of the appropriate amount of child support.” A change in the plaintiff's employment, then, could result only in the modification of the defendant's obligation to pay periodic alimony and his obligations to support his children.

Paragraph twenty-one of the separation agreement, entitled “Medical Insurance,” stated that the first $3000 of the minor children's unreimbursed medical expenses each year was to be paid by the defendant, and that the balance of such expenses was to be divided equally between the defendant and the plaintiff. This paragraph of the separation agreement did not contain any language regarding modification.

The plaintiff's employment with the defendant's company ended in late July, 2012. By way of a motion for modification filed on August 17, 2012, the plaintiff requested a modification of the defendant's alimony and child support obligations pursuant to the separation agreement on the ground that she was no longer employed by the defendant. On January 29, 2013, at a hearing on the motion for modification, both parties, without objection, presented testimony about the reasons for the dissolution of the marriage, the financial affidavits of each party, the property distribution pursuant to the separation agreement, the plaintiff's ability to work and current employment, and the relative financial positions of the parties at the time of the motion to modify.

The court granted the motion for modification and ordered the defendant to pay alimony to the plaintiff in the amount of $1600 per week. The court also ordered child support in the amount of $425 per week, pursuant to the child support guidelines.³ It then terminated the order which had required the defendant to pay the first $3000 of the children's clothing expenses, and ordered the parties to split the remaining cost of clothing evenly. The court modified the parties' respective obligations to pay the children's unreimbursed medical expenses. Unreimbursed medical expenses were to be split equally between the plaintiff and the defendant. The effect of the new order was to relieve the defendant of his obligation to pay the first $3000 of such expenses each year.

The defendant filed a motion to reargue the court's order on the plaintiff's motion to modify on February 14, 2013, arguing that: (1) the defendant's counsel had urged the court to make allowance for the fact that the defendant's company had an operating loss of $52,182, but the court did not allow for the operating loss in its order; and (2) by modifying alimony in part on the basis of the property division in the separation agreement, the court's order ran “contrary to the [j]udgment of the [c]ourt at the time of the dissolution of the marriage.” The court denied that motion. This appeal followed.

I

The defendant claims that the court applied an erroneous legal standard in modifying his alimony and child support obligations. He contends that the court erred in applying a de novo or so-called “second look” standard in modifying the support orders. The defendant argues that because the plaintiff relied upon her change of employment, as provided for in the separation agreement, rather than upon General Statutes § 46b–86 (a),⁴ as the justification for modification, that only a very limited review of the court's prior orders should have been undertaken. The court erred, the defendant argues, in conducting a more comprehensive inquiry of the sort contemplated by General Statutes § 46b–82.

The defendant raises this issue for the first time on appeal. At the hearing on the motion for modification, the court stated that it intended to apply the criteria set forth in § 46b–82,⁵ and neither party objected.

At the hearing, the plaintiff sought to preclude the defendant from proving cohabitation. See General Statutes § 46b–86 (b) (trial court may suspend, reduce or terminate periodic alimony upon finding that cohabitation alters financial needs of person receiving alimony). The court noted that § 46b–86 was “somewhat irrelevant” to the proceedings because the plaintiff was seeking a modification of the defendant's alimony and child support obligations pursuant to the separation agreement, which permitted such a modification when the plaintiff was no longer employed by the defendant's company. The court stated: “We are really squarely on the issue of alimony. We're going to deal with § 46b–82 and ... of course, we're going to deal with child support as well, the guidelines and so forth.” Neither party objected.

The defendant did not raise in the trial court the claim that the court should not have modified alimony and child support based upon the criteria in § 46b–82, but rather should have conducted a more limited review based more narrowly upon the agreement, and accordingly the issue is unpreserved.⁶ See Ucci v. Ucci, 114 Conn.App. 256, 969 A.2d 217 (2009) (claim on appeal that trial court applied wrong standard in ruling on motion to modify unreviewable where trial court stated it was applying criteria in § 46b–82 and moving party did not alert court at any time that he sought modification pursuant to agreement only and that court should not consider § 46b–82 criteria). “It is well settled that a trial court can be expected to rule only on those matters that are put before it.... For this court to ... consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Citations omitted; internal quotation marks omitted.) Id., at 261–62, 969 A.2d 217.

II

The defendant next claims that in fashioning the financial orders, the court made erroneous factual findings when it (1) added $20,000 to the defendant's net income because his business had paid for $20,000 of his personal expenses, and (2) calculated rental and depreciation at $86,788, when the correct amount was $32,623. We are not persuaded.

“With regard to the trial court's factual findings, the clearly erroneous standard of review is appropriate.... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.... Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Miller v. Guimaraes, 78 Conn.App. 760, 766–67, 829 A.2d 422 (2003).

In its January 29, 2013 decision from the bench on the motion for modification, the court found that the defendant's total gross income was $263,502. The court included in that amount $20,000 in personal expenses that were charged to the American Express credit card of the defendant's company. The court also included in gross income the rental income received by the defendant from his two properties....