Posts tagged with "custody"

The Case

A decision rendered in the Superior Court for the Judicial District of Hartford illustrates the consequences of failing to file a motion to modify child support in a timely manner.  In this particular case, the parties obtained a divorce in 1994.  At that time, they agreed that the husband would pay child support for their minor child.  Several years later, the parties stipulated to an increase in the husband’s obligation.  However, none of the agreements contained language specifying when the husband’s child support obligation would end.

Although the child turned eighteen in 2011, the husband continued to pay support for close to another year.  When he finally sought a modification, he requested reimbursement for overpayments dating back to the child’s eighteenth birthday, claiming that the court’s order was self-executing, or, in other words, terminated automatically.

The Court’s Decision

In denying the husband’s request for reimbursement, the Court noted that under C.G.S.A. 46b-84, a parent is obligated to provide support until a child reaches the age of eighteen, or if the child is still in high school and in need of maintenance, until the child graduates or reaches the age of nineteen, whichever occurs first.  Thus, pursuant to the parties’ agreement which was silent as to termination, the husband’s support obligation could have continued well beyond the child’s eighteenth birthday.

Because the parties’ agreement contained no language calling for an automatic termination, the court found that the provision was not self-executing.  Moreover, a child support award may not be modified retroactively prior to the date of service of the motion.  Thus, although the court terminated the husband’s child support obligation, it only ordered the wife to reimburse him for the amount he paid after she received his motion.

By: Joseph Maya, Esq.

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Our firm in Westport 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.

Should you have questions regarding child support, or divorce matters in general, please feel free to contact Attorney Joseph C. Maya  He can be reached in the firm’s Westport office at (203) 221-3100 or by email at JMaya@Mayalaw.com.

The Case

As indicated in a Connecticut Appellate Court decision, a party that has engaged in repeated instances of contemptuous conduct may be precluded from pursuing an appeal.  In this particular case, the parties obtained a divorce in the Judicial District of Stamford / Norwalk.  At that time, the husband was ordered to pay the wife alimony in the amount of $22,000.00 per month and child support in the amount of $686.00 per week.

The court also ordered the husband to appear in court once per month with updates as to his employment search.  Shortly thereafter, the wife filed a motion for contempt, claiming that the husband had moved to Florida and stopped paying financial support.  The court granted the wife’s motion, entered an incarceration order with a purge amount of almost $25,000.00, and issued a capias since the defendant had failed to appear.

Despite the foregoing orders, the husband failed to appear at subsequent hearings, and was found in contempt several more times.  As of March 1, 2011, the court had entered nine contempt orders against him.  When the husband later filed an appeal, the wife moved to dismiss, claiming that the husband’s “persistent contemptuous conduct demonstrate[d] a manifest disregard and deliberate defiance of the court’s orders.”

The Court’s Findings

The Appellate Court agreed.  In furtherance of its decision, the Court explained that it has discretion to dismiss an appeal where the appellant is in contempt of the trial court’s orders.  Although such instances are rare, the Court has acted in cases where there was “clearly a calculated and continued pattern of contemptuous behavior in defiance of the authority of the courts of this state.”  Bubrosky v. Bubrosky, 129 Conn. App. 338 (2011).

The Court will look at a number of factors, including the number of times the appellant was held in contempt, whether it is likely that the appellant will continue to frustrate orders of the court issued in connection with the same matter, whether the appellant has appeared when summoned to court, and whether the appellant has ever purged himself of the contempt.  Id.

In this particular case, the Court found that the husband was held in contempt nine times since the filing of his appeal, that he had not amended his appeal to challenge the contempt findings, that he failed to appeared in court on several occasions, and that there was nothing in the record to suggest that he would comply with additional orders.

By: Attorney Joseph Maya, Esq.

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Should you have any questions regarding the enforcement of divorce orders, or matrimonial matters in general, please feel free to contact Attorney Joseph Maya He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

Our firm in Westport 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.

In a decision released on September 11, 2012, the Connecticut Appellate Court held that a post judgment trial court order permitting an ex-wife to rent the parties’ former marital residence, and use the proceeds to pay the mortgage, constituted an unauthorized post judgment property assignment.  Pursuant to the original dissolution judgment, the wife was awarded exclusive use and possession of the former marital residence.  The judgment also provided that the home would remain on the market for sale, with each party responsible for one-half of the monthly mortgage payments until it was sold.

Motion for Contempt

Following the parties’ divorce, the ex-husband stopped paying his one-half share of the monthly mortgage obligation.  The ex-wife filed a motion for contempt, and after a hearing, the court found that the husband was in fact in willful violation of the court’s orders.  The ex-wife subsequently filed a post judgment motion for modification requesting permission to rent the home so she could use the proceeds to pay the mortgage.  According to the wife, the husband was still in default, and since she was unable to pay the entire amount, the home would likely be foreclosed upon.  The court granted the ex-wife’s request.

Years later the wife once again moved for a finding of contempt against the husband for failing to pay one-half of the mortgage, and prevailed.  The husband appealed, claiming that by requiring him to contribute toward the monthly payment, despite the fact that the rental income covered the monthly payments in full, the court effectively awarded the wife his one-half share of the rental proceeds.  According to the husband, the court’s order constituted an impermissible post judgment property assignment.

The Court’s Decision

The Appellate Court agreed.  In reaching its decision, it noted that, “The court’s judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment..”  Buehler v. Buehler, 138 Conn. App. 63 (2012).  Although C.G.S. § 46b-86(a) allows for the modification of periodic alimony and child support (unless the order specifically precludes modification) the statute does not apply to property assignments under C.G.S. § 46b-81.

As the Court in Buehler explained, “The statute, therefore, deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of  property of one party to the other party under General Statutes § 46b-81.”  “Although the court has jurisdiction to assign property in connection with C.G.S. § 46b-81, that assignment is not modifiable.”  Buehler, supra.

By: Joseph Maya, Esq.

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Our firm in Westport 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.

Should you have any questions regarding matrimonial matters, please feel free to contact Attorney Joseph Maya. He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

Clients often express concern over the manner in which their soon to be ex-spouse expended marital funds during the course of their marriage, and ultimately inquire as to whether the court will consider the dissipation of assets when dividing the marital estate.  The Connecticut Supreme Court addressed this very issue in Gershman v. Gershman, 286 Conn. 341 (2007).

Case Details

In Gershman, the parties were married for approximately twenty years and were the parents of three minor children.  With respect to the wife’s claim that the husband dissipated assets, the lower court found that in 2002, the husband invested $105,000 in a series of partnerships, which at the time of trial were only valued at $31,074.  The court further found that during the marriage, the parties agreed to spend approximately $500,000 to build a new home; however, unbeknownst to the wife, the husband ended up spending well over $900,000.

In entering its orders, the trial court explained that the defendant had made a bad investment decision with respect to the aforementioned partnerships and that he was responsible for the cost overruns for the parties’ new home, causing them to lose $200,000 when it was sold.  The court ultimately stated that, “The matter of the dissipation of family assets ha[d] been taken into consideration in the overall asset division.”

The Appeal

The husband appealed, claiming that the trial court improperly concluded that he had dissipated family assets.  In reviewing the law of several other jurisdictions, the Connecticut Supreme Court explained that a poor investment decision or the use of marital assets to purchase marital property alone does not constitute dissipation.  Rather, courts generally require that a marital asset be used for a non-marital purpose.  Some courts have concluded that dissipation only occurs where a spouse acts in bad faith with an intent to deprive the other spouse of marital assets.

In such cases, there must be some evidence of willful misconduct, bad faith, or an intention to dissipate marital assets before a court may alter the equitable distribution award.  Taking those general concepts into consideration, and ultimately ruling in the husband’s favor, the Connecticut Supreme Court concluded that, “at a minimum, dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.”  Gershman at 351.

By: Joseph Maya, Esq.

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Our firm in Westport 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.

Should you have any questions regarding the dissipation of marital assets, or divorce matters generally, please feel free to contact Attorney Joseph Maya. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

In certain cases a court is permitted to modify orders regarding alimony and child support after a divorce has been finalized.  Although there are a variety of circumstances under which a modification may be warranted, cases often involve situations where one party’s income has significantly increased or decreased.

In Dan v. Dan, 137 Conn. App. 728 (2012), the parties were divorced in 2000 after a twenty-nine year marriage.  As part of their separation agreement, the husband agreed to pay the wife $15,000 per month in alimony, plus 25% of any amounts that he earned through performance based bonuses.  The husband was obligated to make the payments until the wife’s death, remarriage or cohabitation, or until the husband retired or reached the age of sixty-five, whichever occurred first.

Motion to Modify Alimony

Approximately ten years later, the wife filed a motion to modify the husband’s alimony obligation, claiming that his income had increased significantly since the divorce, and that her own medical expenses had “skyrocketed.”  The trial court found that at the time of the dissolution, the husband was earning $696,000 per year whereas at the time of the hearing, he was earning a base salary of $3,240,000.  The court also found that the husband had recently exercised stock options in the amount of $3,000,000.

The wife, on the other hand, was earning $8,000 to $12,000 per year from dividend income.  She had a high school diploma, but no college degree, and had not been employed since 1977.  The court also noted that she was taking medication for high blood pressure, high cholesterol and diabetes.  Focusing its analysis on the length of the parties’ marriage, the amount and sources of the parties’ respective income, the parties’ health and the parties’ vocational skills, the court modified the husband’s alimony obligation to $40,000 per month plus 25% of any performance based bonuses.

The Court’s Decision

The husband appealed, claiming that, among other things, the court erred in not limiting its consideration to circumstances that changed after the parties’ divorce.  The Appellate Court disagreed, however, explaining that although the moving party must first demonstrate a substantial change in circumstances warranting a modification, once he or she has done so, the court must then consider all of the statutory criteria set forth in C.G.S. § 46b-82.  In other words, in formulating the new alimony award, the court will consider the same criteria it considered in formulating an initial award even if some of the criteria do not pertain to the alleged change.

By: Michael D. DeMeola, Esq.

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Our firm in Westport 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.

Should you have any questions regarding the modification of alimony or other financial support awards, please feel free to contact Attorney Joseph Maya.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

The Connecticut Supreme Court held that child support orders may be modified upon a change in primary residence, even where a separation agreement contains language expressly precluding such modification.  In this particular case, the parties are the parents of two minor children.  Following their divorce, the children lived with the mother on a primary basis.

With respect to financial support, the parties’ separation agreement provided that the husband would pay unallocated periodic alimony and child support to the mother for a designated period of time.  The agreement further provided that the unallocated support would be non-modifiable as to both amount and term.  Notably, the agreement did not permit modification upon a change in primary residence of the children.

At some point after the dissolution, the parties agreed to transfer primary physical custody of the children to the father.  Shortly thereafter, the father filed a motion to modify the unallocated alimony and child support award based on the change in primary residence.  The mother opposed the motion, however, claiming that the parties’ separation agreement expressly precluded modification.

At the trial court level, the father testified that since the children moved into his home on a primary basis, he had been covering additional expenses including cellular telephone bills, extra-curricular activities, entertainment and transportation for the children.  Although neither party presented evidence to suggest that the children’s needs were not being met, and despite the aforementioned language precluding modification, the court held that the unallocated order was modifiable.  When the Connecticut Appellate Court disagreed, the father appealed to the Connecticut Supreme Court.

The Court’s Decision

The Connecticut Supreme Court concluded that where primary physical custody is transferred from a child support recipient to a child support payor, a provision precluding modification of an unallocated financial award does not in fact prevent modification of the child support component.  In reaching its decision, the Court relied primarily on C.G.S. § 46b-224, which essentially provides that whenever the Superior Court orders a change in custody of children who are the subject of preexisting support orders, such change in custody shall operate to suspend the support order if custody is transferred to the child support obligor, or modify the designated payee of the support order to be the person awarded guardianship or custody.

In other words, as the Court explained, “if the obligor becomes the new primary custodial parent, the obligor is no longer required to pay child support to the former custodian.”  Tomlinson v. Tomlinson, 305 Conn. 529 (2012).  The Court further articulated, “…the originally designated payee who no longer has custody of the child does not continue to receive support payments following the change in custody, and the payments are retained by or redirected to the party who does have custody.”  Id.  The Court further held that C.G.S. § 46b-224 operates automatically regardless of the terms of a separation agreement.

By: Michael D. DeMeola, Esq.

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Our firm in Westport 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.

Should you have any questions regarding child support modifications, or divorce related matters in general, please feel free to contact Attorney Joseph Maya  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.