Wald v. Cortland-Wald

319 A.3d 769

226 Conn.App. 752

Francis Mark WALD

v.Anne Louise CORTLAND-WALD

(AC 45329)

Appellate Court of Connecticut.

Argued January 2, 2024

Officially Released July 23, 2024

Maria McKeon, for the appellant (defendant).

Victoria K. Lanier, with whom was Anna Hoberman, for the appellee (plaintiff).

Bright, C. J., and Moll and Prescott, Js.^*

PRESCOTT, J.

[1] ₇₅₄The defendant, Anne Louise Cortland-Wald,¹ appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Francis Mark Wald, and from certain postjudgment financial orders. On appeal, the defendant claims that the court improperly (1) deviated from the child support guidelines in entering its support orders, (2) found that the defendant had an annual earning capacity of $60,000, (3) modified pendente lite support orders, (4) failed to adjudicate the plaintiff in contempt for violating the court’s pendente lite and automatic orders, (5) failed to award reasonable attorney’s fees after adjudicating the plaintiff in contempt for failing to comply with discovery ₇₅₅orders, (6) failed to award attorney’s fees to the defendant to prosecute her appeal, and (7) issued a postjudgment modification of the dissolution judgment. We conclude that the court improperly deviated from the child support guidelines to calculate its child support orders and, accordingly, reverse in part the judgment of the court and remand the matter for a new trial on all financial orders. We affirm the judgment of the court as to the defendant’s motions for contempt.²

The following facts and procedural history are relevant to our resolution of the present appeal. The parties were married on December 29, 2000, in Tucson, Arizona. The parties have a son, who was born in 2003, and a daughter, who was born in 2009.³ On September 30, 2019, the plaintiff commenced this action seeking dissolution of his marriage to the defendant. On October 4, 2019, the defendant filed an answer and cross complaint. On November 13, 2019, the trial court, Connors, J., approved a pendente lite agreement that required, in part, (1) the plaintiff to pay the defendant $500 twice per month and to pay "for all other family expenses including all children’s expenses, home expenses and medical expenses" and (2) the defendant to actively search for employment.⁴

₇₅₆On April 23, 2021, the defendant filed an agreement for dissolution signed by both parties, a request for approval of a final agreement without court appearance, and an affidavit in support of her request for entry of judgment of dissolution of marriage.⁵ The parties’ agreement provided, in part, that the plaintiff was required to transfer twelve months of his G.I. Bill benefits⁶ to the defendant for her continuing education at Bay Path University and to pay 35 percent of his net military pension to the defendant.

[2] On May 26, 2021, the defendant withdrew her request for approval of the agreement. On September 3, 2021, following a hearing pursuant to Audubon Park- ing Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993),⁷ the trial court, Carrasquilla, J., found the April 23, 2021 agreement unenforceable. The defendant thereafter filed an "ex parte motion for hearing on child support, alimony, exclusive possession [of the marital home], and attorney’s fees pendente lite." On October 7, 2021, the trial court, Diana, J., in ruling on this motion, ordered, inter alia, that "[t]he defendant shall continue to receive 35 percent of the ₇₅₇plaintiff’s net [military] pension as unallocated support" and "100 percent of the G.I. Bill benefits for her continuing education at Bay Path University."⁸

On January 19, 2022, following a four day trial, the trial court, Diana, J., rendered judgment dissolving the parties’ marriage. In its memorandum of decision, the court found that "[t]he plaintiff is fifty-two years old and in good health. He has a bachelor’s degree from Arizona State University (2000) and a master’s degree in National Security from the Naval Post-graduate School (2009). He enlisted in the Marine Corps in August, 1990, and retired in February, 2013, as a Major, after twenty-three years of service. … He moved to Connecticut in 2017, where he currently earns $145,000 [per] year. He also receives an annual military pension of $47,000 and an annual VA disability of $10,000. The plaintiff’s current annual income is approximately $202,000. The plaintiff and the defendant continue to reside in the marital residence in Simsbury … with their daughter and son, when he is not in San Diego … at college. This is the plaintiff’s second marriage; he also has a twenty-nine year old daughter.

"The defendant is fifty years old and in good health. She has her bachelor’s degree from [State University of New York] Purchase (1997) and a master’s degree in educational technology from Arizona State University (1999) and is currently completing her program of study for a master’s degree in occupational therapy from Bay Path University. The defendant is not employed and has no earned income. She is receiving 35 percent of ₇₅₈the plaintiff’s military retirement, the G.I. Bill tuition payment through April, 2022, and a monthly housing allowance. This is the defendant’s first marriage." (Footnotes omitted.)

The court also detailed the financial difficulties that the parties faced over the course of their marriage. It addressed the defendant’s claim that the plaintiff exercised coercive control over the parties’ finances, finding that "[t]he plaintiff supported the defendant in all her educational decisions and never prevented her from doing as she pleased." Regarding payment of the children’s college expenses, the court found that the parties "had planned to allow the defendant to use the plaintiff’s G.I. Bill in order for the defendant to obtain her PhD. Then, after the defendant secured gainful employment, the parties would pool their funds to pay for college from their income. After the defendant’s original plan to pursue a doctorate changed, she decided on a new plan, but this was delayed because it required her to take science prerequisite classes in order to pursue a master’s degree in occupational therapy. The plaintiff sought to secure a well paying job to support the family. The defendant changed her career, requiring more education and delaying her return to the workforce." (Footnote omitted.)

Regarding the defendant’s income, the court found that "[t]he defendant needs to complete her program of study, her fieldwork and then take her boards to be certified and secure employment. Her bestcase scenario if everything goes according to schedule is that she expects to be employed [in the fall of 2022]. The court finds that the defendant is resourceful, intelligent, and driven. The court finds the defendant to have an earning capacity initially of $60,000 with a real potential to increase that amount in the short term as the professional opportunities vary."

₇₅₉The court found the plaintiff’s testimony to be credible and reliable. It found the defendant to be at fault for the breakdown of the marriage because she had engaged in an extramarital affair. The court noted that "[t]he parties and their children have continued to reside together while these [proceedings] have been pending for thirty months and counting. The delay, strain and tension has overwhelmed the defendant and their children."⁹

In its orders, the court awarded the parties joint legal custody and shared physical custody of their minor child.¹⁰ It ordered the plaintiff to pay the defendant $300 per week in child support. The court acknowledged that this was a deviation from the presumptive amount of child support pursuant to the child support guidelines, but it found the presumptive amount of child support of $431 "to be inequitable and inappropriate due to the shared physical custody access schedule for the minor child." The court further ordered that the child support obligation "shall not commence until the week following the sale of the parties’ Simsbury residence."¹¹ The court stated that "the pendente lite orders from October 7, 2021, shall continue with the plaintiff ₇₆₀paying the household expenses until the parties’ residence in Simsbury is sold and title is transferred." (Footnote omitted.) The court further ordered the plaintiff to pay the defendant $200 per week in periodic alimony, stating that this obligation "shall not commence until the week following the sale of the parties’ Simsbury residence."¹² Finally, the court ordered that the plaintiff retain 65 percent of his net military pension income and the defendant retain 35 percent of the plaintiff’s net military pension income.

In its memorandum of decision, the court also denied the defendant’s motions for contempt filed on November 8 and December 1, 2021. In those motions, the defendant had claimed that the plaintiff violated the pendente lite agreement that had been approved by the court on November 13, 2019, by failing to pay her $500 twice per month and had violated the automatic orders by buying and selling motor vehicles and other household items without her knowledge or consent. In denying these motions, the court effectively concluded that the parties’ April 23, 2021 agreement had rendered the parties’ obligation to comply with the prior support orders unclear and ambiguous. The court, however, granted the defendant’s motion for contempt filed on December 21, 2021, in which she claimed that the plaintiff had violated certain discovery orders. Accordingly, it ordered the plaintiff to pay attorney’s fees in the amount of $1000 to the defendant based on this finding of contempt.

The defendant filed the present appeal on February 28, 2022, and an amended appeal on December 19, 2022. Additional facts will be set forth as necessary.

₇₆₁I

The defendant first claims that, in rendering its child support orders, the court improperly deviated from the presumptive amount of child support without...