Posts tagged with "abuse of discretion"

Court Awards Wife Alimony in Addition to a Portion of Husband’s Business

It is well recognized that in dissolution actions, a trial court may exercise broad discretion when dividing property and awarding alimony, as long as it considers all relevant statutory criteria. For many reasons, one of which is that a trial judge has the benefit of observing witnesses first hand, an appellate court will not disturb a trial court’s decision unless there has been a clear abuse of discretion. This of course is a very heavy burden for an appellant to satisfy, but the standard makes sense, and is not insurmountable. That being said, the appellate process presents its own challenges and to the extent an appellate court may exercise its own discretion to arrive at a desired result, it can be relatively unpredictable.

In a recent appellate decision, the Court addressed whether it was appropriate for a trial judge to award a wife alimony in addition to a portion of the husband’s business, which provided his sole stream of income. In McRae v. McRae, 129 Conn. App. 171 (2011), the defendant owned a software production company, while the wife owned a decorative painting business. The main issue of contention at trial concerned the value of the husband’s company. Both parties utilized business valuation experts who introduced testimony on the issue, and after hearing evidence, the Court relied on the husband’s expert. Interestingly, the Court also made findings as to the parties’ respective earning capacities, as opposed to their actual earnings. The Court ultimately divided the marital property equally, including the husband’s business as part of the marital estate. In addition, the Court awarded the wife periodic alimony for a term of ten years.

On appeal, the defendant argued that the trial court’s decision to take his business into account in both the property division scheme and the award of alimony constitutes improper double dipping, a generally recognized concept. The Appellate Court affirmed the Trial Court’s decision on two main grounds. First, it held that although C.G.S.A. § 46b-81 allows a trial court to consider its property division order when fashioning an alimony award, nothing in the statutory framework forbids a court from awarding periodic alimony to one spouse when the court has made an equitable distribution of the other spouse’s closely held business. The Court also held that the trial court specifically based the alimony award on the parties’ earning capacities- not the husband’s business- which it is permitted to do. This case further exemplifies not only the broad discretion a trial court is permitted to exercise in the context of a dissolution action, but also illustrates the degree of deference the Appellate Court will afford a trial judge when reviewing the underlying decision.

Should you have any questions regarding matrimonial cases, please do not hesitate to contact our office. Attorney DeMeola welcomes inquiries regarding matrimonial matters and can be reached in the firm’s Westport office by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Child Support Award of 20% of Father’s Variable Bonus Income Held Abuse of Discretion

In a recent post-judgment divorce action, the Supreme Court of Connecticut found that the trial court did not properly apply child support deviation criteria when it awarded an open-ended child support award of 20% on a defendant father’s variable bonus. The court deemed this as contradictory to the child support guideline principles and an abuse of discretion by the trial court.

The defendant, father, and the plaintiff, mother, were married in May 1988 and are the parents of twin sons, born in 1995. The father, a high-income earner, earned approximately $200,000 year base salary, though he also received incentive compensation as well. Notably, he received significant net cash bonuses for his work performance at or in excess of $500,000 for the years 2003, 2004, and 2005. The father also possessed over $5 million in unexercised stock options and restricted stock. The mother was a stay-at-home mother from the time the children were born.

The total assets of the parties were substantial, totaling nearly $18 million, which the court divided between the mother and father in the amounts of $10.65 million and $7.1 million, respectively. In addition, the court awarded alimony to the mother in the amount of $1,215 per week plus 20% of the father’s annual net cash bonus and 20% of any future tax refund that the father might receive. Although the father appealed these awards and distributions as an abuse of discretion by the trial court, of particular interest was his claim that requiring him to pay 20% of his annual net cash bonus as child support was unjustified and inconsistent with the child support guidelines.

When a court considers the terms of a child support order, there are various statutory criteria it must use in determining whether a child is in need of maintenance from the parents. Courts must utilize the child support guidelines to make sure that proposed child support awards are appropriate. These guidelines, which must be considered in all determinations of child support amounts, are based on the income shares model, which in light of each parent’s income presumes the child would receive the same proportion of parental income if the parents lived together. Interestingly, spending on children as a percentage of household income declines as family income rises, even if the absolute dollars spent has increased.

The guidelines also include a schedule for calculating the basic child support obligation for families that have two minor children and a combined net weekly income ranging from $310 to $4,000. The required support payment for two children declines from 35.99% at $310 to 15.89% at $4,000. Should the combined net weekly income exceed $4,000, the courts have the discretion to make awards on a case-by-case basis, and where there is a proven, routine consistency in annual bonus income, a court may award additional child support if justified by the needs of the child. However, the award is still governed by the same principles that govern any child custody award. If the court seeks deviation from the schedule, it must explicitly state why the guidelines were inequitable or inappropriate, as well as why deviation was necessary to meet the needs of the child.

In this case, the court stated that the support payment for two children under the guidelines should, by presumption, not exceed 15.89% where the family’s net weekly income is greater than $4,000. This presumption can be rebutted by application of deviation criteria found in the guidelines as well as other statutory factors. Utilizing the husband’s fluctuating net cash bonus amounts, the court stated that the use of an open-ended child support award of 20% directly contradicted the guideline principles that as a family’s net weekly income increases, the percentage spent on the care of children decreases. Furthermore, even though the trial court applied the deviation criteria in its determination, it not only misunderstood the criteria and incorrectly applied them, but also failed to state why the guidelines were inappropriate or inequitable. The court expressed concern that unrestrained child support awards in high-income cases could lead to potential windfalls in the transfers of wealth, along with “disguised alimony” payments. Thus, with this aspect of the father’s appeal, the court reversed and remanded.

Whether advancing or defending a post-judgment motion regarding awards of alimony, assignment of property, and child support, a divorced individual is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Deviation From Agency Policy Upheld Where Foster Placement “Best” Met the Needs of the Children

In a recent post-judgment action, the Superior Court of Connecticut, Judicial District of Fairfield, Juvenile Matters at Bridgeport upheld the placement of two minor children by the Department of Children and Families (the Department), despite deviation from administrative policy, as the placement “best” met the children’s needs.

The appellant mother had two minor children, who in the course of one and a half years were twice removed from the mother’s care pursuant to orders of temporary custody filed by the Department. In July 2009, the children were placed in a legal risk foster home – a home licensed for adoption but which provides care for children not legally free to be adopted. However, within two months the children were removed from that location, and in October 2009, they were committed to the care and custody of the Department. At that time, the children were placed in a new legal risk foster home in New Fairfield, Connecticut, consisting of two same gender foster parents.

The foster parents at this location supported visitation between the mother and the children, spoke positively to the children about returning to their mother’s care, and the children made positive progress with various behavioral issues. In addition, even though the mother resided in Bridgeport, the Department facilitated her visitation and transportation three times per week. At a final decision of the Department Administrative Hearings Unit in July 2010, the Deputy Commissioner found that the current placement of the children was appropriate to both the children’s needs and problems. The mother appealed this decision on five grounds, with the primary contention that the children were placed in a home at a distance further than what is contemplated by the Department guidelines.

The scope of judicial review regarding the decisions of an administrative agency is very limited: whether there is substantial evidence on the record supporting the agency’s findings, and if the conclusions were reasonable. Thus, a court must determine whether the agency acted unreasonably, arbitrarily, illegally, or in abuse of its discretion when it rendered its decision. Department policy regarding foster care placement states that matches small be made in the least restrictive, most family-like setting and in close proximity to the child’s home. However, exceptions are permitted where if the placement does not conform to these requirements, it will be deemed temporary unless it best meets the child’s needs.

In this case, the court agreed that the Department did not accord fully with their policy with respect to foster care placement, which was located approximately 40 miles away from the mother’s home. However, based on the record, the court determined that it was clear this placement more than appropriately addressed the children’s needs and problems. Indeed, removing the children from the foster home and placing them closer to the mother would be detrimental to their well being. Therefore, the court agreed that this placement “best” met the needs of the children, and because it was not persuaded by the other grounds for appeal made by the mother, the action was dismissed.

Whether advancing or defending a post-judgment motion to modify custody or visitation, a divorced parent is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Relocation of Minor Child OK, Father Failed To Supply Adequate Record for Court To Review

In a recent divorce action, the Appellate Court of Connecticut upheld a lower court’s ruling allowing a mother’s relocation with her minor child to Virginia. Because the father failed to provide articulable facts in support of an additional claim, the court declined to review it.

The plaintiff, mother, and defendant, father, were married in Darien in 1998, and had one minor child. The mother worked in marketing and sales in Danbury, but her sales territory was moved to four southern states, including Virginia. Because on-site presence was necessary both during and after the sales process, the mother believed relocation was necessary for advancement in leadership and management positions within the company. She further expressed concern about the cost of living in Fairfield County and being able to provide her child a good, stable life. Meanwhile, at the time of dissolution, the father was a sales representative working out of his house. He had two children from a previous marriage, and there was constant dispute over his payment of child support and alimony.

The parties’ child suffered from numerous medical problems, including epilepsy. To better inform care providers, the mother developed a comprehensive package of information for their use in the event of an emergency. The father downplayed the significance of the child’s condition, and frequently disputed with the mother over the child’s medication and other matters of the child’s upbringing, which the child witnessed. While litigation was pending, the mother accrued $18,000 in medical expenses for the child, but the father did not offer to pay any amount of these costs.

A guardian ad litem (GAL) was appointed in 2005 and he met with both parties and the child. The GAL concluded that the mother was the primary caregiver, and he both recommended that she be awarded sole custody and supported the proposed relocation. A family relations counselor agreed with these conclusions. The court awarded sole legal custody to the mother, as it was in the best interests of the child because she was more nurturing and aware of the child’s needs. It noted the father had the ability to frequently visit the child in Virginia, and as such did not order weekly child support payments. However, the father was required to pay $346 for each missed visit. The father was ordered to maintain his life insurance until the child reached majority age. The father appealed these decisions, noting insufficient evidence on the record supporting the decision allowing relocation, stating it was improper to penalize him for missed visitation, and arguing that the court exceeded its jurisdiction with respect to the life insurance order.

Relocation issues that arise at the initial judgment for the dissolution of marriage are governed by the best interest of the child standard, articulated in Connecticut General Statutes § 46b-56. Subsection (c) lists sixteen factors that a court may consider, but it need not assign any weight to any factor. In this case, the Appellate Court found ample evidence on the record supporting the trial court’s decision allowing relocation, but did not find an abuse of discretion in the decision.

It is not the power of an appellate court to find facts, but to review claims on a complete factual record developed by the trial court. It is the duty of an appellant to supply the court with an adequate record for review. In this case, the Appellate Court declined to review the father’s claim with respect to the visitation penalty, as he did not present his claim adequately. In fact, he submitted a scant brief devoid of any legal authority supporting his claim, and the court would not make speculations to fill in the holes.

Decisions regarding post-secondary education may occur after the dissolution of marriage, so courts have the authority to retain jurisdiction to later order educational support for adult children. The court may provide for assurance of that support with life insurance. In this case, the Appellate Court found no abuse in discretion by the trial court and upheld this order, since it was clearly tied to a future educational support order.

Whether advancing or defending a motion seeking custody, visitation, and child support, a parent is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or JMaya@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Pursuing Self-Help Rather Than Court Modification? Expect a Contempt Motion Not In Your Favor

In a recent post-dissolution action, the Appellate Court of Connecticut affirmed in part and reversed in part a trial court’s findings that the defendant was in contempt of a court order. The plaintiff wife and defendant husband were married in 1985 and had four children through the course of their eighteen-year marriage. In September 2003, the parties submitted a separation agreement to the court, which the court incorporated into its judgment for dissolution. In relevant part, the agreement stated that while the husband remained unemployed, he was responsible for one-half the cost of the children’s extracurricular activities. In addition, regardless of his employment status, the husband was required to pay three-quarters the cost of the children’s undergraduate education.

In February 2007, the parties entered into a modification agreement, which was approved by the court the following month. However, in December 2007, the wife filed a motion for contempt in which she alleged that the husband failed to comply with several obligations set forth in the separation agreement. The husband argued that because he was employed, the provision regarding extracurricular activities did not apply to him, and he contested the manner in which he was to pay for his children’s college expenses. The trial court ruled in the wife’s favor, and the husband appealed.

Separation agreements that are incorporated in a judgment of dissolution are treated as contracts, which must be construed to reflect the parties’ intent. A court will look to the language itself and ascertain a fair and reasonable construction pursuant to common, natural, and ordinary meaning and usage. In reviewing a finding of contempt, an appellate court must first determine whether or not the terms of a court order were sufficiently clear and unambiguous. It must then look for an abuse of discretion by the trial court in issuing or refusing to issue a judgment of contempt. Nonetheless, any order of the court must be followed until it has either been modified or successfully challenged.

In this case, the Appellate Court agreed with the husband that the contempt finding with respect to the extracurricular activities was improper. The language of this provision was sufficiently clear – the husband would cover half the cost for as long as the husband remained unemployed. Because this condition was not met, the contempt finding constituted an abuse of discretion. However, the court agreed that the husband was in contempt for failure to pay his portion of college expenses. The husband never disputed this fact, but he insisted that the payments be made from custodial accounts, not from him directly. Self-help does not obviate a finding of contempt, and the Appellate Court did not find an abuse of discretion by the trial court.

Whether advancing or defending a post-judgment motion involving the enforcement or modification of a separation agreement, a divorced individual is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Appellate Court Upholds Transfer of Guardianship of Minor Child to Grandparents

Written by Lindsay E. Raber, Esq.

In a recent case, the Appellate Court of Connecticut considered a Department of Children and Families (Department) petition seeking to transfer guardianship of a minor child to his paternal grandparents (grandparents), over the objection of his father. The Department had a previous history of involvement with this child over the course of approximately three years, commencing with a referral from medical professionals noting unexplained fractures to the child’s arm. In February 2007, the Department filed petitions for neglect and termination of parental rights and after securing temporary custody of the child, the Department placed him into the grandparents’ custody. In November 2008, the trial court approved the Department’s motion to revoke commitment of the child and to transfer guardianship to the grandparents. The father appealed this decision, saying that it was an abuse of discretion for the trial court to find it not in the child’s best interests to return the child to the father.

When a court considers custodial placement, it needs to consider what is in the best interests of the child. In making this determination, the court will use its broad discretion in choosing a location that will suitably “foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment.” The trial court is in the best position to make this determination, and an appellate court will not reverse unless there is a clear showing of an abuse of discretion.

In this case, the court promptly found that it was in the best interest of the minor child to transfer guardianship to his grandparents. He was in their custody for an extended period of time, over three years by the time this decision was released, and he adjusted very well to being under their care. The child bonded with both grandparents, was happy to live with them, and even referred to their house as his own. In addition, the grandparents provided for the child’s needs and were “ready, willing and able to do so in the future.” In stark contrast, the father could not articulate any plans for taking care of the child if awarded custody, let alone any evidence in support of his claim the child should be returned to his custody. As such, the Appellate Court determined that the trial court had ample facts on hand to support the decision that it was in the best interests of the child to remain with his grandparents, to whom guardianship would be transferred.

Whether advancing or defending a motion to modify custody or visitation, a parent is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Due to Mother’s Pattern of “Contemptuous Conduct,” Award of Sole Custody to Child’s Father Was Proper

Written by Lindsay E. Raber, Esq.

In a recent post-judgment divorce action, the Appellate Court of Connecticut considered a defendant’s numerous claims that the trial court erred in its child custody determination. The plaintiff father and defendant mother were married for fourteen years and had one child together. Pursuant to a comprehensive separation agreement, the parents shared joint legal custody, while the mother had primary physical custody of the minor child. Five years after the court dissolved their marriage, the father moved to modify the custody order due to a change in circumstances. He alleged that the mother alienated the child from him and constantly deprived him of his parenting rights without judicial reprimand. The court issued a temporary order granting the father sole physical custody of the child pending further proceedings.

After three days of hearings, the court granted the father’s motion, finding that the minor child was in “a healthier environment” since the transfer of custody. The mother, on the other hand, “wrongfully engage[d] in efforts to manipulate the minor child,” a characterization imputed by numerous unbiased parties. The court noted the mother’s past inability to comply with court orders, “lengthy pattern of contemptuous conduct,” financial waste, a pattern of parental alienation, and history of false reports of abuse and neglect to government agencies, resulting in wasted investigational efforts. The court found that the father established a change in circumstances, and it was in the child’s best interests that the father receive sole legal and physical custody. In addition, the court entered orders that severely restricted the mother’s ability to file motions in the matter due to her previous abuses of the system.

On appeal, the mother contended that the court abused its discretion by modifying the order, but the Appellate Court quickly rejected this argument. Trial courts have broad discretion in determining what is in the best interests of a minor child, and in this case, there was substantial evidence supporting the trial court’s conclusion. As such, an abuse of discretion did not occur.

The mother also contended that the court orders that restricted her own ability to seek modification of custody and parenting access were impermissible. In its ruling, the trial found that “the defendant has filed … numerous pleadings and complaints that have resulted in unnecessary litigation.” The Appellate Court stated that the imposition of conditions with respect to a party’s ability to file motions, in circumstances such as this, are warranted and do not constitute an abuse of discretion.

Finally, the mother argued that it was improper for the trial court to base its decision, in part, on a finding of parental alienation. She alleged that because the father did not present expert testimony, and the court did not make any findings with respect to the theory, the court abused its discretion. The Appellate Court readily disagreed, saying that such considerations – manipulation and coercion by a parent – are permitted under General Statutes § 46b-56 (c). Therefore, because the mother failed to establish any grounds for reversal, the Appellate Court affirmed judgment.

Whether advancing or defending a motion to modify custody or visitation, a divorced parent is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Husband Held in Contempt After Attempt to Conceal $250,000 in Marital Assets

Written by Lindsay E. Raber, Esq.

In a recent dissolution action, the Appellate Court of Connecticut upheld a trial court’s finding of contempt when the defendant refused to return marital assets pursuant to a pendente lite automatic order.

On January 3, 2011, the defendant husband withdrew $250,000 from the parties’ joint home equity line of credit without the plaintiff wife’s knowledge or consent. Later that month, the wife served the husband with her complaint seeking dissolution of the marriage. In March 2011, the wife filed a motion for order pendente lite, in which she asked the court to order the husband to return the monies he withdrew. The husband claimed stated that he withdrew the money to repay a loan to his daughter. The husband’s daughter testified to similar effect. However, the court was not persuaded, and the court granted the wife’s motion with a return date of April 4, 2011. When the husband failed to comply, the court found him in contempt and he was later arrested. He filed an appeal, claiming the court abused its discretion because “the finding of contempt was based on the violation of an order that the court was without authority to issue.”

Courts enjoy “wide discretion and broad equitable power” to effectuate the goal of providing appropriate relief in domestic relations cases. Court orders must be obeyed until either modified or successfully challenged, and willful violation of an order of the court constitutes contempt. In this case, the Appellate Court determined that the trial court had authority to order the husband to pay back the $250,000, and because he failed to comply, a finding of contempt was not an abuse of discretion.

Trial courts are in the best position to assign the weight of credibility to a party’s testimony. Therefore, in this case, when the trial court elected to find the husband’s and his daughter’s claims to be unreliable, the trial court did not abuse its discretion. The Appellate Court found that it was reasonable for the trial court to conclude that the husband and his daughter were “engaged in a scheme to conceal and protect marital assets that had been taken by the defendant for no valid reason or purpose.” Furthermore, even though the husband withdrew the money before the pendente lite period began, his attempts to conceal the money continued after the orders were in place. It was immaterial that he did not actually possess the money – he bore the consequences of his conduct. Therefore, a finding that he was in violation of the orders was proper.

Whether advancing or defending a pre- or post-judgment motion regarding awards of alimony, assignment of property, and child support, a divorced individual is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Defendant’s Juror Misconduct Claim Rejected; Lower Court Did Not Abuse Its Discretion with Extent of Inquiry

In a recently posted article, a criminal defendant convicted of various gun charges failed on his insufficiency of the evidence claim. He further argued on appeal that the court improperly concluded that juror misconduct did not take place.

Essentially, the defendant claimed that a juror, T, did not believe there was enough evidence that the defendant committed assault. However, T changed his vote to guilty after another juror threatened to hang the jury on an attempted murder charge. The court held an evidentiary hearing, asking questions “which mainly focused on T’s recollection and awareness of the instructions on legal principles that had been given to the jurors prior to their deliberations.” T responded in the affirmative when asked these questions.

Thereafter, the court issued a memorandum that rejected the defendant’s claim of jury misconduct. It explained, in essence, it is only the final and formal conclusion that is considered, not a juror’s prior, private intentions:

Connecticut courts have consistently found that the expressions and arguments of jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations in arriving at a verdict are to be considered immaterial in claims of juror misconduct. To do otherwise would violate the sanctity of the juror process. …

It is the burden of the defendant to prove actual juror bias and misconduct that resulted in actual prejudice, where the trial court was not responsible. In this case, the defendant argued that the court’s inquiry was not sufficient because “the court did not ask the juror if he recalled the court’s instruction prohibiting consideration of punishment or the consequences of their verdict.”

The Appellate Court concluded that the court’s inquiry into whether juror misconduct occurred “was tailored properly to ascertaining this fact.” It noted that T confirmed that he recalled the relevant instructions given by the court before deliberations began. The court found no need to proceed any further, and to do so would constitute an abuse of discretion. “That the verdict may have been the result of compromise, or a mistake on part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” Therefore, this part of the defendant’s appeal was denied.

Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Stolen Dealer Plates Found Relevant and Probative in Vehicle Retagging Scheme

In a recent criminal law matter, the Appellate Court of Connecticut affirmed a defendant’s conspiracy and larceny convictions, finding that evidence of stolen dealer plates was properly admitted.

This case arose from an incident that occurred on February 4, 2008. Months before, state police began investigating an operation where vehicles stolen in New York were “retagged” and sold in Connecticut. A detective went undercover posing as a buyer and agreed to purchase two stolen vehicles for $20,500. The defendant was present when dealer plates belonging to his previous employer were attached to one car, and he drove the second vehicle to the exchange point in Fairfield. Police moved in and arrested the defendant and several other individuals involved. Troopers observed materials used in the retagging process on the defendant’s person, as well as inside nearby vehicles driven by coconspirators.

The defendant was charged with two counts of conspiracy to commit larceny in the first degree and two counts of larceny in the first degree. Prior to trial, the defendant filed a motion seeking to exclude evidence of the stolen dealer plates. He argued that it was irrelevant, and the probative value, if any, was far outweighed by the prejudicial effect it would have on the jury. The State countered that such evidence went to intent and to show the defendant was a knowing participant in the conspiracy rather than an unwitting passenger.

The court allowed the evidence and attendant testimony, noting it was relevant to a material fact in the case. Thus, for example, a detective “opined that, based on her training and experience, a former employee would have better access than a stranger to the dealer plates because of his familiarity with the dealership and the knowledge of its layout.” The defendant was subsequently found guilty on all counts and appealed his convictions, arguing that evidence of the dealer plates was improperly admitted because it was not relevant, and alternatively that it was unfairly prejudicial.

To convict a defendant of conspiracy under Connecticut General Statutes § 53a-48, the State must show that an agreement to commit a crime was made between two or more people, one of whom acts overtly to further the conspiracy. This is a specific intent crime, and the State must prove that the conspirators “intended to agree and that they intended to commit the elements of the underlying offense.” Because it is difficult to ascertain a person’s subjective intent, it is often inferred from circumstantial evidence and rational inferences. Evidence is relevant so long as it has a “logical tendency to aid [the judge or jury] in the determination of an issue” to even the slightest degree, so long as it is not unduly prejudicial or merely cumulative.

In this case, the Appellate Court found that the dealer plates “had a logical tendency to show a connection between the defendant and the larcenous scheme,” as well as the requisite intent to commit conspiracy to commit larceny. Indeed, this evidence countered the defendant’s assertion that he was an innocent bystander. While the evidence itself might have been weak, this was an issue of its weight, not its relevance. Therefore, the trial court did not abuse its discretion by allowing it.

There are many grounds for excluding relevant evidence, such as the risk of unfair prejudice. Naturally, all evidence against the defendant is damaging and thus prejudicial, so the appropriate inquiry is whether the proffered evidence will “improperly arouse the emotions of the jury.” In this case, the defendant argued that the jury may have concluded that the dealer plates, which belonged to his previous employer, were stolen, a fact which they would then impermissibly use to infer he committed the presently charged offenses. The Appellate Court stated that while such impermissible inferences may have been drawn, the trial court has broad discretion in weighing the probative value versus prejudicial impact, a decision reversible only upon showing an abuse of discretion or manifest injustice. Based on the facts of this case, the Court could not conclude that the trial court abused its discretion; therefore, the defendant’s claims on appeal failed.

When faced with a charge of larceny, burglary, conspiracy, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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