Posts tagged with "divorce law firm NY"

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

Trial Court: Dissolution Actions

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.

Appellate Decision

In an 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.

Defendant Appeal

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.  Managing partner, Attorney Joseph C. Maya 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 jmaya@mayalaw.com. Contact us today to schedule a free initial consultation.

Courts Permitted to Award Time Limited Alimony for Rehabilitative Purposes

Determining Alimony Award

In determining whether alimony should be awarded- as well as the duration and amount of the award- there are several statutory criteria that must be considered.  Although these well-settled factors provide courts and litigants with some direction, there is no precise formula, and judges are afforded significant discretion is fashioning support awards.  In a recent appellate decision, the Court pointed out that in exercising such discretion, trial judges may consider whether time limited alimony is appropriate merely for rehabilitative purposes in cases where a future event will enable an ex-spouse to become self-sufficient.

Marmo v. Marmo

In Marmo v. Marmo, 131 Conn. App. 43 (2011), the Connecticut Appellate Court explained that although the traditional purpose of alimony is to meet one’s continuing duty to support, courts have begun to limit the duration of alimony awards to encourage the receiving spouse to become self-sufficient.  The underlying policy is that limiting awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.

The Court further explained, “[a]nother valid purpose for time limited alimony is to provide interim support until a future event occurs that makes such support less necessary or unnecessary.”  Id.  For example, interim support may be appropriate until a minor child reaches the age of majority.  Other examples might include bond maturation, trust disbursement, or mortgage maturation. Id.  One caveat to this rule is that there must be sufficient evidence to support a trial court’s finding as to the duration established. Id.

Marmo, Supra

In Marmo, supra, the parties were married for approximately seventeen years.  However, the trial court found that the wife had experience working as a computer department manager of a third party administrator.  Although she left that position due to her pregnancy, at the time of trial she was employed by a local board of education working with computers part-time.  Importantly, the wife testified that she was in the process of completing a bachelor’s degree to enable her to obtain a teaching certificate.

She expected to complete her degree in December, 2009 and obtain her certification two years later, at which time she planned to teach computer technology in elementary or middle school.  The wife further testified that she intended to sell the marital residence when the children were out of high school.  Without necessarily explaining its rationale, the trial court awarded the wife alimony in the amount of $825.00 per week for a period of four years.

The Appellate Court

The Appellate Court ultimately held that the trial court’s alimony award was appropriate.  In support of its decision, the Court noted the foregoing evidence, ultimately concluding that the time limited award met the purpose of helping the wife rehabilitate and become self-sufficient.  Essentially, the Court awarded her support until she was able regain full time employment, which also coincided, in terms of timing, with the parties’ children graduating from high school.

Should you have any questions regarding alimony in the context of a divorce proceeding or post-judgment modification, please do not hesitate to contact Maya Murphy, P.C.  Attorney Joseph C. Maya welcomes inquires and can be reached in the Westport office by telephone at (203) 221-3100 or by e-mail at jmaya@mayalaw.com. Contact us today to schedule a free initial consultation.

Court Awards Wife Alimony in the Amount of $6,000 Per Month

Superior Court: Klages v. Klages

In Klages v. Klages, a case involving alimony, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FV104034594S, the plaintiff wife and defendant husband were married in Pennsylvania on October 9, 1993.  At the time of trial, they had four children ranging in age from six to eleven.

Husband’s Employment

The husband had been employed in the insurance industry throughout the marriage.  During the two year period immediately preceding the divorce, he owned a limited liability company and his own insurance company.   The Court found that his earning capacity increased steadily over the course of the marriage, and that at the time of trial, it was approximately $200,000.00 per year, including earned income, commissions and other unearned income.  The Court noted that the husband’s tax returns showed his gross income to be $180,427.00 for 2010.

Case History

The wife’s work history was brief and occurred mostly before the parties’ children were born.  The Court found that she was primarily responsible for the childrearing duties within the home.  At the time of trial, she had recently returned to school and was working toward achieving her associate’s degree.  During the divorce proceedings, the wife was living in the marital home which had a value of approximately $600,000.00, but was encumbered with a mortgage in the amount of approximately $675,000.00.

Court Order

After considering all relevant statutory criteria, the Court ordered the husband to pay the wife unallocated alimony and child support in the amount of $6,000.00 per month for a period of ten years from the date of dissolution, followed by $3,000.00 per month for an additional period of five years.  The Court further ordered that in the event the marital home was sold, said amounts would increase to $7,500.00 and $3,500.00 for the applicable time period.  The Court designated the term of alimony as non-modifiable, and further held that the wife could earn up to $35,000.00 per year without triggering a downward modification of support.

Contact Us

Should you have any questions relating to alimony, or divorce proceedings generally, please feel free to contact managing partner, Attorney Joseph C. Maya by telephone at (203) 221-3100 or by e-mail at jmaya@mayalaw.com to schedule a free initial consultation.

Alimony: Court Orders Father to Pay College Tuition Up to Full UCONN Cap

Connecticut Appellate Court: Alimony Agreement

A Connecticut Appellate Court decision emphasizes the importance of formulating clear and unambiguous language when crafting an alimony agreement regarding the payment of college expenses under Connecticut General Statutes §46b-56.  In Loso v. Loso, 132 Conn. App. 257 (2011), the parties entered into a post-judgment agreement pursuant to which the defendant is obligated “to pay for one-half the cost of [his daughter’s] college educational expenses for a four year degree net of scholarships or grants subject to the limitation that said cost shall not exceed the tuition for a full-time residential student at UCONN-Storrs.”

Plaintiff Filed Motion

The Plaintiff subsequently filed a motion for contempt, alleging that the defendant was obligated to pay one-half the cost of their daughter’s fall 2010 semester at Sacred Heart University, which included charges for a meal plan, health insurance, recreation and athletic fees, housing and tuition.  The defendant contended that his obligation was capped at one-half the tuition for a full-time residential student at UCONN Storrs.

After reviewing the plain language of the agreement, however, the Court held that the defendant was indeed responsible for one-half of the daughter’s educational expenses- not just tuition- but further held that his obligation was capped at the full amount of tuition for a student at UCONN Storrs, not one-half.  It appears this issue could have been avoided altogether had the defendant specified that he would pay one-half of the college expenses up to one-half the amount charged by the University of Connecticut for a full-time residential student.

Case Importance

Once again, this case illustrates the importance of drafting clear and unambiguous language when crafting a provision regarding the payment of college expenses to ensure that the agreement accurately reflects the parties’ intentions.  This is particularly true when a child will be attending an institution which costs more than the University of Connecticut, as a party could be ordered to pay well in excess of the expected amount.

Should you have any questions regarding payment of college expenses in the context of a post-judgment matrimonial case, please do not hesitate to contact our office. Managing partner, Attorney Joseph Maya 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 jmaya@mayalaw.com. Contact the firm today to schedule a free initial consultation.

Request for Attorneys’ Fees Denied: Court finds that wife “cannot be rewarded for her own financial indiscretions.”

Superior Court: Judicial District of Fairfield

The Superior Court in the Judicial District of Fairfield (Owens, JTR) issued a decision following a contested post-judgment divorce hearing in which an ex-wife, of whom had financial indiscretions, sought counsel fees from her ex-husband in an amount of “not less than $50,000.00.”

The parties, who had been divorced since shortly after their divorce trial in the spring of 2010, have been engaged in protracted litigation – including an appeal by the wife to the Appellate Court – over numerous issues relating to the judgment of dissolution and monies claimed to be owed by the husband to the wife.  The parties each filed three motions which were heard at one time by the Superior Court in November of 2011.  Among other allegations, the wife claimed that the husband – who is gainfully employed – should have to pay for her appellate and post-judgment counsel fees, which are in excess of $110,000.00 and rapidly increasing.

In completely denying each and every one of the wife’s post-judgment motions, including a motion for contempt and the motion for counsel fees, the Honorable Howard T. Owens, Jr. held that “the Defendant’s monthly shortfall in liquidity is not the Plaintiff’s responsibility.  She makes her own financial decisions and has received what the Court has determined was just and appropriate under all the circumstances.

Court Decision

The Court stated that it considered not just the parties’ present financial status (the wife claims to have no assets available with which to pay counsel fees), but also considered the voluntary depletion of her net worth since the date of trial, noting the considerable alimony she had received and had apparently spent, as well as her elective living expenses and the disposition of her other assets.  The Court opined that the wife “cannot be rewarded for her own financial indiscretions.

Finding her request for counsel fees to be “inequitable in the extreme” given the testimony presented at the evidentiary hearing, the Court denied the wife’s request for counsel fees and left her responsible for her own costs of this ongoing litigation.

See Von Kohorn v. Von Kohorn, Docket No. FA-09-4027456-S, Superior Court, J.D. of Fairfield at Bridgeport (Owens, JTR), decided February 6, 2012.  Counsel for Plaintiff: MAYA MURPHY, P.C. by H. Daniel Murphy, Esq.

Should you have questions regarding visitation matters, the department of children and families, or divorce matters in general, contact managing partner Joseph C. Maya at 203-221-3100 or at JMaya@Mayalaw.com for a free initial consultation.

Court Rules that Evidence of Prior Actions May Be Used to Substantiate Neglect

Evidence of Prior Actions

In an appeal involving Substantiate Neglect, the Court (Cohn, J.), explained that in the context of DCF proceedings, evidence of prior actions may be used to substantiate physical neglect.  In that particular case, the appellant and his wife had a history of engaging in domestic violence, and one of their children reported constant yelling which made her stomach hurt.

During the altercation which gave rise to DCF involvement, the appellant grabbed his wife by the throat and lifted her from the ground.  When the wife got free, the argument moved outside at which time she broke the appellant’s car window with a baseball bat.  The appellant then grabbed the child, placed her inside his car- unrestrained on the center console- and sped away nearly running the mother over.

Support a Substantiation of Physical Neglect

In reviewing the case, the hearing officer first noted that in order to support a substantiation of physical neglect the Department must demonstrate:

(1) the Appellant is a person responsible for the children’s health, welfare or care . . .

(2) the Appellant denied the children proper care and attention and permitted them to live under conditions, circumstances or associations injurious to their well-being; and

(3) the conduct resulted in an adverse physical impact on the children, or the act was a single incident that demonstrated a serious disregard for the child’s welfare.  Based on the evidence presented, the hearing officer found that the child was present in the middle of the altercation; that she was placed in the range of a swinging bat; and that she was thrown into a vehicle which then sped off.

The hearing officer concluded that the appellant’s conduct constituted physical neglect in that he was the child’s father and thus responsible for her care; the child was denied proper care and attention through the appellant’s actions; and the incident demonstrated a serious disregard for the child’s welfare, particularly in light of the fact that she reported there was constant yelling in the house which gave her a stomach ache.

Court Appeal

The appellant argued that the hearing officer erred in substantiating physical neglect in that, among other things, he considered the child’s complaint of stomach aches even though they occurred at other times. He argued that the hearing officer should not have made use of prior incidents to justify a finding of physical neglect arising from the incident at issue.

On appeal, the Court held that prior incidents, even if not substantiated at the time of their occurrence, may be considered by the Department of Children and Families when substantiation is eventually made.  Indeed, “An unsubstantiated allegation does not mean it didn’t happen; it means that, standing alone, the allegation did not rise to the level of legal neglect or abuse and/or the evidence was sufficiently ambiguous that the allegation could not be sustained by a fair preponderance of the evidence.

However, to ignore a pattern of similar allegations in the context of a child protection investigation simply because each one standing alone is not sufficient would be irresponsible and create an unacceptable level of risk to the child.”  Vines v. Dept. of Children and Families, Superior Court, Judicial District of New Britain, Docket No. CV-08-4016779 (November 24, 2008, Cohn, J.).

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact managing partner, Attorney Joseph C. Maya for a free initial consultation. He practices in the firm’s Westport office and can be reached at (203) 221-3100 or jmaya@mayalaw.com.

In Educational Neglect Proceeding, Court Rules that “Detrimental Effect” is not Required

In Re Amurah B., Superior Court, Judicial District of Middlesex

In the case of In Re Amurah B., Superior Court, Judicial District of Middlesex, Docket No. M08CP09010939A (March 12, 2010, Rubinow, J.), the Court addressed whether the Department of Children and Families must demonstrate a “detrimental effect” before it can enter a finding of educational neglect.  In that particular case, DCF initially filed petitions alleging that the children were being subjected to educational neglect in that they were not being forced to attend school.  A trial ensued, and after DCF concluded its case-in-chief, the parents claimed it failed to make out a prima facie case with respect to any of the children.

DCF opposed the motion, contending that the evidence was sufficient to prove the children were denied proper educational care and attention in that they did not attend school regularly, and thus were deprived of educational opportunities.  The parents countered, arguing that the children received adequate educational attention, as evidenced by their grades and consistent promotions, and that the Department’s evidence of non-attendance alone could not be sufficient.  The parents contended that in order to satisfy its burden, the state must provide evidence of a detrimental effect on a child.

Connecticut’s Statutory and Common Law Expectations

In considering the parents’ motion, the Court reviewed Connecticut’s statutory and common law expectations for the education of children, noting that education has long been recognized as being fundamental to the well-being of a child. Indeed, education is so important that the state has made it compulsory through an attendance requirement. Pursuant to Connecticut General Statutes § 10-184, “All parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including a study of the town, state and federal governments.”

To implement this policy, C.G.S.A. § 10-184 further establishes that “each parent or other person having control of a child five years of age and over and under eighteen years of age shall cause such child to attend a public school regularly during the hours and terms the public school in the district in which such child resides is in session, unless such child is a high school graduate or the parent or person having control of such child is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools.”  Pursuant to Connecticut General Statutes § 10-185, failure to do so is punishable by a fine.

Trial Court

The trial court acknowledged that the Connecticut Appellate Court has not yet ruled as to whether a neglect finding can enter in a case where the parents fail to cause their children to attend school, but the children are nevertheless performing on an average level.  However, it did point out that the Juvenile Courts of Connecticut and other states have granted neglect petitions under similar circumstances.  Ultimately denying the parents’ motion to dismiss, the Court held that in light of the clear and explicit mandate of C.G.S.A. §§ 10-184 and 10-185, the element of “detrimental effect” is not essential to a finding of neglect at the adjudicatory stage.

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact Michael D. DeMeola.  He can be reached by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

Court Transfers Guardianship of Child to Maternal Grandmother

Court Case: Department of Children and Families

In a case involving the the transfer of guardianship, the Court granted a mother’s motion to transfer guardianship to the child’s maternal grandmother.  DCF initially became involved in the matter after receiving reports that the parents were engaging in domestic violence and substance abuse.  Although the Court originally entered an order of protective supervision, DCF later invoked a 96 hour hold and sought an Order of Temporary Custody following a subsequent altercation between the parents.  The Court sustained that OTC and the child was committed to the care of the Department.

DCF later moved to open and modify the disposition from a classification of protective supervision to commitment.  The mother filed a motion requesting that guardianship be transferred to the maternal grandmother instead.  Following a two day hearing, the Court ruled in favor of the mother.

The Court’s Decision

In its decision, the Court focused primarily on the child’s relationship with his grandmother.  The Court noted that he had a strong relationship with her from birth, and that they were well bonded to one another.  The Court further noted that when the grandmother offered herself as a placement resource for the child, DCF accepted numerous times during the course of the case.  In fact, with DCF approval, the child actually resided with the maternal grandmother, who was also utilized as a visitation supervisor.

The Court found that the maternal grandmother provided appropriate care for the child, and that the child was emotionally attached to her.  Throughout the course of DCF’s two year involvement in the case, it never claimed that the child received inappropriate treatment from the grandmother.  Based on the foregoing, the Court ultimately found that the grandmother was a suitable guardian and that it was in the child’s best interest to transfer guardianship to her.

Should you have any questions relating to DCF proceedings, or family matters generally, please do not hesitate to contact managing partner, Attorney Joseph C. Maya for a free initial consultation. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

Despite Father’s Unemployment, Court Awards Support Based on Earning Capacity

Connecticut Superior Court

A Connecticut Superior Court again applied the principle of utilizing a party’s “earning capacity” – rather than actual earnings – to the modification of a support award in post-judgment matrimonial action. In this case the court awards support due to earning capacity. Earning capacity is not an amount that a person can “theoretically earn,” nor is it confined to actual income, but rather it is an amount which an individual “can realistically be expected to earn, considering his skills, age and health.” Weinstein v. Weinstein, 104 Conn.App. 482, 489, 934 A.2d 306 (2007), Elia v. Elia, 99 Conn. App. 829, 833, 916 A.2d 845 (2007).

Weismuller v. Weismuller

In the matter of Weismuller v. Weismuller, (New London J.D. at Norwich), the defendant husband, who represented himself at trial, sought a downward modification of his child support award on the basis that he had become unemployed since the judgment of dissolution.  The Court found that the defendant had previously earned approximately $170,000.00 per year as the chief judge of the Mashantucket Pequot Tribal Court.

Although the defendant was not reappointed when his term came to a close, the Court found his efforts at re-employment to be lacking despite the presentation of employment applications with various government agencies and tribal courts.  The Court instead found that Weismuller, who now sought a modification of his support obligations, failed to prove he had engaged in a good-faith, comprehensive, and meaningful search for employment.

With a thinly-veiled message to the defendant and unemployed individuals elsewhere in this State who seek to modify support orders on that basis, the Court wrote, “While the court understands and appreciates that a highly paid professional may take significant time to return to the workforce, the court concludes that this time is fast approaching.”

Individuals who seek to modify terms of a separation agreement and divorce judgment should first seek the assistance of a well-qualified, experienced family law practitioner.

Should you have questions regarding visitation matters, alimony, or cases involving the Department of Children and Families , contact managing partner Joseph C. Maya at the firms Westport office at 203-221-3100 or at JMaya@Mayalaw.com for a free consultation.

Courts Afford DCF Great Deference on Appeal

Department of Children and Families Case

A decision rendered in a case involving the Department of Children and Families (DCF) demonstrates the extent to which courts defer to the agency’s conclusions when reviewing a matter on appeal. In this particular case, the plaintiffs were the maternal aunt and uncle of two children, ages fourteen and sixteen.  After receiving reports that the children were being physically and emotionally neglected, the Department conducted an investigation, ultimately substantiating the allegations as to both children.  When the plaintiffs learned they were going to be placed on the Central Registry, they requested an administrative hearing.

Abuse Allegations

The hearing officer found that DCF had received several prior reports for this family, ranging from allegations of physical abuse to emotional neglect.  The hearing officer also found that on one occasion, the plaintiffs forced their nephew to sleep on dirty laundry, and on other occasions, locked him out of their home.  At one point, the aunt and uncle stated the nephew was a financial obligation and they did not want him to return to their care.  Shortly thereafter, the plaintiffs agreed to transfer guardianship of the child to the paternal uncle.

The hearing officer upheld the allegations of physical neglect as to the nephew based on his finding that the child had been wrongfully denied access to his home.  The hearing officer also upheld the substantiation of emotional abuse as to the nephew because of an incident in which the plaintiffs took the child’s backpack and school books from him, and because of several inappropriate statements the plaintiffs made about the child to third parties.

Court Decision

In explaining its limited role on appeal, the court stated that it may not retry the case or substitute its own judgment for that of the administrative agency with respect to the weight of the evidence or questions of fact.  Rather, its duty is simply to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.

The fact that a hearing officer discounted contrary evidence in the record does not affect the validity of the DCF decision. In reviewing the case on appeal, the Court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, either in whole or in part.

Court Testimony

In light of that standard, the court ultimately held that the testimony and documents produced at the hearing convinced the officer to uphold DCF’s determination. As the Court expounded, “The ‘book bag incident,’ the ‘sleeping on dirty clothes event,’ the plaintiffs’ insults of [the child] given at the hospital and probation office, and the barring from the house for both [children] were in the record.”  Therefore, there was no basis to overturn the hearing officer’s decision.

Should you have any questions regarding DCF cases, or family matters generally, please do not hesitate to contact managing partner, Attorney Joseph C. Maya to schedule a free initial consultation. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.