Bialik v. Bialik

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JODI BIALIK v. SCOTT BIALIK
(AC 44699)
Alvord, Clark and Seeley, Js.

Syllabus

The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
modifying the defendant’s alimony obligation. The parties’ separation
agreement, which was incorporated into the judgment of dissolution,
required the defendant to make weekly alimony payments of $2769.23
to the plaintiff, an amount that was nonmodifiable downward unless the
defendant earned less than $350,000 in annual adjusted gross earnings.
Adjusted gross earnings was defined in the separation agreement, in
part, as gross business receipts less business expenses. The defendant
claimed that a substantial decrease in his annual income from his dental
practice as a result of the COVID-19 pandemic constituted a change in
circumstances that warranted a reduction in his alimony payments.
The trial court heard expert testimony that the parties presented from
accountants about the defendant’s financial circumstances and his
receipt of $159,000 in loans and grants the federal government distrib-
uted in 2020 to businesses nationwide to help offset their loss of income
during the COVID-19 pandemic. Both parties’ accountants believed that
the federal government would forgive the full amount of the loans. The
plaintiff’s accountant, T, determined that the defendant would not incur
any federal income tax obligation due to the government’s forgiveness
of the loans and that the defendant would benefit from the deduction
of payroll expenses on his corporate tax return. The defendant’s accoun-
tant, L, determined that the defendant had adjusted gross earnings of
$240,123 in 2020, which did not include the funds received from the
federal government, and that the proceeds of the loans would not reduce
the defendant’s expenses or be considered income or forgiveness of
debt. The court concluded that the defendant had established a change
in circumstances on the basis of L’s determination that the defendant
had adjusted gross earnings of $240,123 in 2020. The court reasoned
that the federal funds were intended as one-time emergency loans that
should not be considered as ordinary income. The court reduced the
defendant’s weekly alimony payment to $1038 and required the plaintiff
to reimburse him for his overpayment of $34,853 in alimony. On appeal,
the plaintiff claimed, inter alia, that the court’s conclusion that the
defendant had established a change in circumstances was incorrect as
a result of the court’s failure to include the federal funds in its calculation
of his adjusted gross earnings. Held:
1. The trial court improperly calculated the defendant’s adjusted gross earn-
ings by failing to include the federal funds he received, and, because
the court’s finding of a substantial change in circumstances was predi-
cated on that incorrect calculation, the court’s modification of his ali-
mony obligation had to be reversed and the case remanded for a new
modification hearing: the federal funds constituted gross business
receipts within the separation agreement’s definition of adjusted gross
earnings and, thus, cash flow that was transferred into the defendant’s
business; moreover, the funds were virtually indistinguishable from ordi-
nary business receipts, and the trial court understood that the federal
government intended the funds to be essentially replacement business
income; furthermore, despite the defendant’s contention to the contrary,
this court was not convinced that the funds should be excluded from
gross business receipts merely because the federal government dis-
bursed them for targeted purposes or intended them to be one-time or
emergency disbursements.
2. The trial court’s acceptance of L’s calculation as to the defendant’s
$7974.18 tax deduction for disability insurance payments in 2020 was
clearly erroneous, as that finding was not supported by the evidence:
L testified that he did not know the exact amount the defendant spent
on disability insurance as part of the defendant’s business overhead,
and both L and the defendant testified that some portion of the $7974.18
should have been added back into the defendant’s adjusted gross earn-
ings as defined in the parties’ separation agreement.
Argued May 12—officially released October 4, 2022

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Danbury, where the court, Winslow, J., rendered
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Truglia, J., granted
the defendant’s motion for modification of alimony and
denied the plaintiff’s motions for contempt and contri-
bution for certain expenses, and the plaintiff appealed
to this court; subsequently, the court, Truglia, J., issued
an articulation of its decision. Reversed in part; further
proceedings.
Christopher P. Norris, for the appellant (plaintiff).
Laura A. Goldstein, with whom was Eva M. DeFranco,
for the appellee (defendant).
Opinion

ALVORD, J. The plaintiff, Jodi Bialik, appeals from
the postjudgment ruling of the trial court granting the
motion of the defendant, Scott Bialik, for a modification
of his alimony obligation. On appeal, the plaintiff claims
that the court erred in (1) failing to consider the impact
of funds received by the defendant’s dental practice
from the federal Paycheck Protection Program (PPP);
see 15 U.S.C. § 636 (a) (36); and the Economic Injury
Disaster Loan (EIDL) program; see 15 U.S.C. § 636 (b)
(2); both of which are administered by the United States
Small Business Administration (SBA), in calculating the
defendant’s annual adjusted gross earnings, as defined
in the parties’ separation agreement, and (2) its treat-
ment of disability insurance premiums paid by the
defendant’s business.1 We agree with the plaintiff and,
accordingly, reverse in part the judgment of the trial
court.

The following facts and procedural history are rele-
vant to our review of the plaintiff’s claims. The court,
Winslow, J., dissolved the parties’ marriage on Decem-
ber 14, 2016. At the time of the dissolution, the parties
had two minor children, aged fifteen and twelve. The
judgment of dissolution incorporated by reference the
parties’ separation agreement (agreement). With
respect to alimony, the defendant was obligated to pay
the plaintiff $2769.23 per week ‘‘until the first of the
following to occur: either party’s death, the [plaintiff’s]
remarriage, or ten (10) years from the dissolution of
marriage.’’ The parties agreed that alimony was ‘‘non-
modifiable as to an extension of the term.’’

Pursuant to Section 20 (C) of the agreement, the
amount of alimony paid by the defendant to the plaintiff
is ‘‘nonmodifiable downward unless the [defendant]
earns less than . . . $350,000 . . . annual adjusted
gross earnings. If the [defendant] earns less than . . .
$350,000 . . . annual adjusted gross earnings, then the
amount of alimony may be modifiable if a court of
competent jurisdiction so determines, based on a
motion for modification properly filed and proceeded
upon.’’

Section 20 of the agreement defines ‘‘adjusted gross
earnings’’ as ‘‘gross business receipts less business
expenses, less straight-line depreciation of business
equipment; with add-backs for the following: travel and
entertainment expenses of $5,000.00 per year; advertis-
ing expenses in excess of $5,000.00 per year; any chari-
table contributions, owner’s percentage of profit shar-
ing; medical insurance of owner, attorney and
accounting fees in excess of $15,000.00 per year, but
not including professional fees paid in connection with
insurance, tax or Medicaid audits; dues and subscrip-
tions in excess of $3,600.00; auto expenses in excess
of $6,000.00; auto depreciation; home office rent or
expenses; equipment for personal use; and any W-2
gross income paid to the owner.’’

The agreement also included safe harbor provisions,
pursuant to which the plaintiff could earn up to $50,000
gross employment earnings annually, and the defendant
could earn up to $700,000 ‘‘adjusted gross earnings
annually,’’ without either being deemed a substantial
change in circumstances. (Internal quotation marks
omitted.) The agreement stated that ‘‘[o]nly those sums
which exceed the ‘safe harbor’ amount shall be consid-
ered in any proceeding for a modification of alimony,
if the claim is an increase in . . . earnings. This ‘safe
harbor’ amount and its term may be modified by a court
of competent jurisdiction.’’

On March 22, 2018, the defendant filed a motion to
modify his alimony obligation, in which he alleged, inter
alia, that his ‘‘income ha[d] substantially decreased,
which amount[ed] to a substantial change in circum-
stances.’’ On October 1, 2018, the parties entered into
a stipulated agreement, which provides in relevant part:
‘‘There shall be no modification of alimony at this time.
It is agreed by the parties that if either party ever brings
this matter back to court to address a change in alimony,
the income of the parties to be considered shall be the
incomes from date of dissolution and the then income of
the parties when the motion is filed and/or addressed.’’2
On June 2, 2020, the plaintiff filed a motion for con-
tempt in which she alleged that, beginning in March,
2020, the defendant unilaterally had reduced the
amount of alimony he paid to her. She alleged, inter
alia, that the defendant was $17,879.80 in arrears on
his alimony payments.
On July 15, 2020, the defendant filed a motion to
modify his alimony obligation, alleging that his annual
income had decreased substantially and was less than
$350,000. He represented, inter alia, that, ‘‘[d]ue to the
unforeseeable COVID-19 pandemic, the defendant was
forced to completely shutter his offices for months,
resulting in little or no income. After the defendant
was permitted to reopen, the number of patients has
decreased significantly.’’
On January 8, 2021, the plaintiff filed a second motion
for contempt, in which she represented that the defen-
dant had refused to pay the previous arrearage ‘‘until
days prior to the hearing on a contempt motion
addressing that arrearage.’’ She alleged that the defen-
dant again was failing to pay his periodic alimony obliga-
tion and ‘‘has unilaterally determined he doesn’t need
to pay for [two] weeks.’’
The court, Truglia, J., held an evidentiary hearing
on the defendant’s motion for modification and the
plaintiff’s two motions for contempt in April, 2021.3
The defendant presented the testimony of Frederick
Landwehr, a certified public accountant and financial
advisor who prepares the defendant’s tax returns and
financial statements. The plaintiff presented the testi-
mony of Theodore Lanzaro, a certified public accoun-
tant and certified forensic accountant. Both parties also
testified.

On April 12, 2021, the defendant filed revised pro-
posed orders in which he requested that the court
reduce his alimony obligation to $1038 per week and
that the modification be made retroactive to the date
of service of his motion for modification, August 8, 2020.

On April 20, 2021, the court issued its memorandum
of decision. The court first found that the defendant had
demonstrated a substantial change in circumstances
in that his income from his business ‘‘ha[d] declined
steadily since December, 2016.’’ The court ‘‘accept[ed]
the figures offered by the defendant’’ and found that
he had annual adjusted gross earnings of $240,123 in
2020. The court next turned to the factors set forth in
General Statutes § 46b-82 (a) and determined that ‘‘an
alimony payment of $2769.23 per week represents an
unreasonable portion of the defendant’s current earn-
ings.’’4 The court reduced the defendant’s weekly ali-
mony obligation to $1038, as requested by the defendant
in his revised proposed orders, and made its order retro-
active to the date of service of the defendant’s motion
for modification, which was August 8, 2020. Applying
the retroactive effective date, the court determined that
the defendant had overpaid alimony in the amount of
$34,853 and ordered the plaintiff to reimburse the defen-
dant for the overpayment on or before June 1, 2021.
Considering the motions for contempt, the court
determined ‘‘that the plaintiff has not carried her burden
of proof by clear and convincing evidence that the
defendant has wilfully violated the court’s clear orders
regarding payment of alimony.’’ The court found that
the defendant was ‘‘unable to comply with the [alimony]
order after he was ordered to close his office in March,
2020, and again in December, 2020.’’ The court addition-
ally found ‘‘that the defendant acted in good faith at all
times in his dealings with the plaintiff.’’5
On April 27, 2021, the plaintiff filed a motion to rear-
gue, which was denied. Thereafter, the plaintiff filed a
motion for articulation, asking the court to articulate
its findings concerning the PPP and EIDL funds and
disability insurance premiums paid as an expense of
the defendant’s business. The court denied the motion
for articulation.6 This appeal followed.7
We first set forth principles of law relevant to the
plaintiff’s claims. ‘‘[General Statutes §] 46b-86 governs
the modification or termination of an alimony or sup-
port order after the date of a dissolution judgment.
When . . . the disputed issue is alimony . . . the
applicable provision of the statute is § 46b-86 (a), which
provides that a final order for alimony may be modified
by the trial court upon a showing of a substantial change
in the circumstances of either party.’’ (Internal quota-
tion marks omitted.) Birkhold v. Birkhold, 343 Conn.
786, 809, 276 A.3d 414 (2022). ‘‘Under that statutory
provision, the party seeking the modification bears the
burden of demonstrating that such a change has
occurred. . . . To obtain a modification, the moving
party must demonstrate that circumstances have
changed since the last court order such that it would
be unjust or inequitable to hold either party to it.
Because the establishment of changed circumstances
is a condition precedent to a party’s relief, it is pertinent
for the trial court to inquire as to what, if any, new
circumstance warrants a modification of the existing
order.’’ (Internal quotation marks omitted.) Malpeso v.
Malpeso, 189 Conn. App. 486, 499, 207 A.3d 1085 (2019).
Prior to addressing the plaintiff’s claims, we note that
the plaintiff does not claim on appeal that the defendant
did not meet the agreement’s $350,000 threshold for
proceeding with a motion for modification. Addition-
ally, both parties acknowledge that the safe harbor pro-
visions contained in the agreement do not relieve the
party seeking modification of the statutorily mandated
burden of demonstrating a substantial change in cir-
cumstances. See Budrawich v. Budrawich, 200 Conn.
App. 229, 255, 240 A.3d 688 (2020) (alimony provision
permitting modification if plaintiff earns less than
$100,000 per year did not relieve plaintiff of burden to
demonstrate substantial change in circumstances), cert.
denied, 336 Conn. 909, 244 A.3d 561 (2021). At issue in
this appeal is whether the court erred in finding that
the defendant sustained his burden of demonstrating a
substantial change in circumstances.8
I
We first address the plaintiff’s claim that the trial
court erred in failing to include the PPP and EIDL funds
in its calculation of the defendant’s income for purposes
of determining whether the defendant had shown a
substantial change in circumstances warranting modifi-
cation of his alimony obligation. Specifically, she claims
that the court improperly accepted the determination
of the defendant’s expert that the defendant’s 2020
adjusted gross earnings totaled $240,123, which did not
include the PPP and EIDL funds or consideration of
the nontaxable nature of those funds. We agree with
the plaintiff that the court should have included the PPP
and EIDL funds in its determination of the defendant’s
adjusted gross earnings. Because the court’s finding of
a substantial change in circumstances was predicated
on the defendant’s decreased earnings, without consid-
eration of the PPP and EIDL funds, that finding can-
not stand.
The following additional procedural history is rele-
vant to our resolution of this claim. As noted previously,
both parties presented expert testimony at the hearing.
Landwehr, the defendant’s certified public accountant,
calculated the defendant’s 2020 adjusted gross earnings
as $240,123, which did not include the PPP and EIDL
funds. Landwehr opined that the EIDL grant and the
PPP funds were not business receipts.9 Landwehr testi-
fied with respect to the EIDL that it was ‘‘a grant that
was paid to businesses in 2020. If they applied for the
grant, they were applied up to $10,000 to get a grant
that does not have to be paid back to stimulate the
. . . business as a nontaxable item for the effects of
the coronavirus on their businesses.’’ On cross-exami-
nation, Landwehr acknowledged that the grant of the
EIDL funds increased the defendant’s cash flow but
maintained that the grant did not increase his business
income.
As to the PPP funds, Landwehr testified that funds
in the amount of $75,000 were received by the defendant
in April, 2020, and deposited into a separate account.
The account’s balance had been reduced to $39.99 by
the end of July, 2020. Landwehr also acknowledged that
the defendant received an additional $75,000 in PPP
funds in 2021. Landwehr testified that it was a ‘‘loan,’’
and that the defendant ‘‘has to provide proof that he
used it to cover the payroll, rent, personal protection
equipment, etc., then he has to submit for forgiveness.’’
Landwehr described the purpose of the program as
‘‘tak[ing] people off the unemployment rolls’’ and testi-
fied that it was ‘‘for companies to pay those employees
for not even coming to work.’’
Landwehr acknowledged that the defendant’s prac-
tice would have had to generate additional taxable busi-
ness receipts in order to produce the equivalent of the
financial benefit afforded by the tax-free moneys pro-
vided by the federal government. As to whether a busi-
ness would be required to reduce the related business
expenses deduction on its tax return corresponding to
receipt of the PPP funds, Landwehr testified that ‘‘an
issue on the PPP was originally that it would be not
income to a business, but it would have to reduce
expenses of a business on the tax return. . . . Then
they came back and said, it does not have to reduce
expenses, the PPP was to help the economic cause
of businesses to try and keep them in business. And
therefore, the proceeds of that, once it’s forgiven, would
not reduce expenses and would not be considered
income or forgiveness of debt.’’ Landwehr testified that
the defendant had not engaged him to apply for forgive-
ness of the PPP loan. Landwehr testified that he
believed ‘‘the full amount [of the PPP loan] will be
forgiven’’ but stated that he had not done that analy-
sis yet.
The defendant testified that his business income had
declined since the dissolution of the parties’ marriage
in 2016. Specifically, he testified that, although he pre-
viously was the only pediatric dentist in his area, there
recently had been an increase in pediatric dentists in
his area, including corporate entities providing dental
care. He further testified that more children had become
covered under Medicaid and that Medicaid had not
increased its rates since 2010.
With respect to the COVID-19 pandemic related
decline in his income, the defendant testified that his
office was closed from March 22 to May 22, 2020, except
for emergency procedures. He explained that, because
patients are seen every six months, he again had no
patients scheduled from September to November, 2020.
Also, the defendant was exposed to COVID-19 in
December, 2020, and was required to close his dental
practice for two weeks.
The defendant testified as to his understanding of
the PPP loans, which was that the moneys were given
to businesses to pay employees so as to prevent them
from seeking unemployment compensation. When fur-
ther questioned, he acknowledged that ‘‘[t]here were
certain stipulations allowing a percentage of the rent’’
and utilities, but ‘‘either 85 or 65 percent of the PPP
loan money had to be used on payroll.’’ He also acknowl-
edged in his testimony that he was hopeful that the
PPP loans would be forgiven and explained that he had
‘‘furloughed [employees] for approximately four days
because it was the four days between not having any
money and then the PPP loan coming in.’’
Lanzaro, the plaintiff’s expert, reviewed the defen-
dant’s financial information, including Landwehr’s cal-
culations, and prepared a report. Lanzaro testified
regarding the PPP funds and the process for seeking
forgiveness of the loan. Lanzaro reviewed the account
in which the defendant had deposited the PPP funds
and determined that his usage of the funds qualified
for forgiveness. Lanzaro testified that he did not ‘‘see
any reason why [the federal government] wouldn’t give
him 100 percent forgiveness.’’
Lanzaro testified that, in addition to incurring no fed-
eral income tax obligation due to the government’s for-
giveness of the PPP loan, the defendant also would
benefit from the deduction of his payroll expenses on
his corporate tax return. Lanzaro testified that, as long
as the defendant similarly met the criteria of the pro-
gram with respect to the 2021 PPP funds, the defendant
would enjoy the exact same federal tax consequences.
The defendant requested that the court reduce his
weekly alimony obligation from $2769.23 to $1038. In
support of that request, the defendant argued that his
income had decreased from $411,000 at the time of the
marital dissolution in 2016 to approximately $240,000
in 2020. The plaintiff contended that certain amounts
that had been excluded from the defendant’s proposed
figures should be included in his adjusted gross earn-
ings. Specifically, the plaintiff argued that $84,000 in
PPP and EIDL funds that the defendant had received
in 2020 should be added to his income from business
operations. The plaintiff further maintained that,
because the PPP and EIDL funds were not considered
taxable income by the federal government, the defen-
dant would have had to generate additional taxable
business receipts greater than the sum of the PPP and
EIDL funds in order to produce the equivalent of the
benefit afforded by the tax-free moneys. Accordingly,
the plaintiff argued, the court should adjust upward
from the government moneys when calculating the
defendant’s adjusted gross earnings for 2020. The plain-
tiff argued for the same treatment of the $75,000 in PPP
funds that the defendant received in 2021.
In its memorandum of decision, the court rejected
the plaintiff’s position that the $159,000 in PPP and EIDL
funds should be included in calculating the defendant’s
adjusted gross earnings. The court stated that it ‘‘fully
acknowledges and understands the plaintiff’s argument
that these funds were intended by the federal govern-
ment to be, essentially, ‘replacement business income.’
Nevertheless, it is clear that the funds were also
intended by the federal government as one-time emer-
gency loans (not grants), which should not be consid-
ered as ordinary income. The court also notes that,
according to the defendant’s expert’s uncontradicted
testimony, if the PPP loans are forgiven, they are
exempt from traditional Internal Revenue Code rules
and regulations regarding cancellation of indebtedness
income.’’ The court accepted Landwehr’s calculation
as the ‘‘correct calculation of the defendant’s 2020
adjusted gross earnings as defined by the agreement.’’
On the basis of the decline in the defendant’s income,
the court found that there had been a substantial change
in circumstances.
On appeal, the plaintiff claims that the court erred
in finding a substantial change in circumstances
because the court incorrectly determined that the PPP
and EIDL funds should not be included in the defen-
dant’s adjusted gross earnings as defined by the agree-
ment. ‘‘In a marriage dissolution action, an agreement
of the parties executed at the time of the dissolution
and incorporated into the judgment is a contract of the
parties. . . . The construction of a contract to ascer-
tain the intent of the parties presents a question of law
when the contract or agreement is unambiguous within
the four corners of the instrument. . . . The scope of
review in such cases is plenary . . . [rather than] the
clearly erroneous standard used to review questions of
fact found by a trial court.’’ (Internal quotation marks
omitted.) Steller v. Steller, 181 Conn. App. 581, 588, 187
A.3d 1184 (2018). The language of the agreement in
the present case, as incorporated into the dissolution
judgment, is clear and unambiguous. Accordingly, our
review is plenary.
The parties’ agreement defines ‘‘adjusted gross earn-
ings’’ as ‘‘gross business receipts less business
expenses, less straight-line depreciation of business
equipment,’’ with certain ‘‘add-backs . . . .’’ Thus, we
must examine the nature of the funds at issue to deter-
mine whether they constitute ‘‘gross business receipts.’’
The court had before it the testimony from both parties’
experts that they believed that the full amount of the
PPP loans would be forgiven, although Landwehr noted
that he had not been hired to complete that process
and, thus, had not ‘‘done that analysis yet.’’ Lanzaro,
however, had reviewed the account in which the 2020
PPP funds were deposited and determined that the
defendant’s usage of the funds qualified for forgive-
ness.10 Moreover, the plaintiff entered into evidence a
copy of the defendant’s bank statement for the account
into which the PPP funds were deposited and a copy
of a sample PPP loan forgiveness application form. With
respect to the EIDL grant, Landwehr acknowledged that
it did not have to be repaid, describing it as a ‘‘grant
that does not have to be paid back to stimulate the
. . . business as a nontaxable item for the effects of
the coronavirus on their businesses.’’
Having reviewed the evidence admitted at the hear-
ing, we agree with the plaintiff that the PPP and EIDL
funds should be included within the definition of
‘‘adjusted gross earnings’’ under the agreement, in that
they constitute gross business receipts.11 The PPP and
EIDL funds are virtually indistinguishable from ordinary
business receipts, differing primarily in their extraordi-
nary dual tax favored status. The court aptly noted that
it understood the plaintiff’s argument that the funds
were intended by the federal government to be ‘‘essen-
tially, ‘replacement business income.’ ’’ See N. Shafer,
‘‘Changing Tax Laws and Support: Keeping Up as the
Ground Shifts,’’ 33 J. Am. Acad. Matrim. L. 159, 174
(2020) (‘‘For support purposes . . . how should [a
hypothetical $100,000 PPP loan] be treated? The reality
is that the business has $100,000 more of cash flow.
Especially in a flow-through entity like an S Corp, part-
nership or LLC, or sole proprietorship, the reality of
this financial shot in the arm of additional cash flow
does not change the bottom line for tax purposes, but
for cash flow purposes it could have an impact.’’). Thus,
the PPP and EIDL funds constitute cash flow trans-
ferred into the defendant’s business. Accordingly, we
conclude, on the basis of this record, that the PPP and
EIDL funds should be included in the calculation of the
defendant’s adjusted gross earnings.12
The defendant argues that the PPP and EIDL funds
should not be included in his adjusted gross earnings
because they ‘‘were expended as intended: to keep
employees off of unemployment compensation and
keep the business from closing.’’ He notes that his staff
was furloughed for four days before he received the
PPP funds and that he was able to bring back and retain
his employees despite a two month shutdown of his
practice and a lack of patients and revenue. He further
emphasizes that the EIDL grant is titled as an ‘‘emer-
gency’’ grant. We are not convinced that the funds
should be excluded from gross business receipts merely
because they were disbursed by the federal government
for targeted purposes or were intended to be one-time
or emergency disbursements.
Accordingly, we conclude that the court improperly
calculated the defendant’s ‘‘adjusted gross earnings’’ as
set forth in the agreement. Because the court’s finding
of a substantial change in circumstances was predicated
on the defendant’s decreased earnings, the court’s judg-
ment modifying the defendant’s alimony obligation
must be reversed and the case remanded for a new
hearing on the defendant’s motion for modification.
II
We next address the plaintiff’s claim that the trial
court erred in accepting the calculations of the defen-
dant’s expert, who ‘‘testified that [the] defendant’s pay-
ments to disability insurance was deducted as a busi-
ness expense even though portions of same may not
have been appropriately deducted from income.’’13 The
defendant responds that, ‘‘[e]ven if an undetermined
fraction of the $7974.18 should have been added back
into the defendant’s adjusted gross earnings, this minor
amount would have no impact on the finding of a sub-
stantial change in circumstances or the amount of the
modification.’’ We agree with the plaintiff that the court
improperly accepted the calculation of the defendant’s
expert.14
The following additional facts and procedural history
are relevant to our resolution of this claim. The defen-
dant entered into evidence a document prepared by
Landwehr that identified, under the category of ‘‘add
backs,’’ a line item titled ‘‘disability insurance (business
overhead)’’ that had no amount correlated with it. Land-
wehr testified with respect to that item that overhead
disability insurance is tax deductible, but that he did
not have the breakdown on how much the defendant
had spent on that disability insurance. Thereafter, the
following colloquy occurred between the plaintiff’s
counsel and Landwehr:
‘‘[The Plaintiff’s Counsel]: So, we can’t say whether
or not the disability should or should not be added in
because you can’t tell us today, as an expert, whether
it qualifies as a business expense?
‘‘[The Witness]: What I’m telling—
‘‘[The Plaintiff’s Counsel]: (Indiscernible)’s paid, cor-
rect?
‘‘[The Witness]: —what I’m telling you is, there’s a
portion of an expense that he usually has labeled as
disability—
‘‘[The Plaintiff’s Counsel]: Right.
‘‘[The Witness]: —that is actually business overhead.
Okay? I do not know the exact amount of that. Okay?
‘‘[The Plaintiff’s Counsel]: Right.
‘‘[The Witness]: And, I’m not gonna guess without
pulling out those records and—and doing it.
‘‘[The Plaintiff’s Counsel]: So, what’s the total amount
of the disability paid by [the defendant] in 2020?
‘‘[The Witness]: Okay, the amount shown on the cash
flow report is $7974.18. We do not know how much of
that is for . . . disability and how much of that is for
the business overhead.
‘‘[The Plaintiff’s Counsel]: So, if disability was 6500
of that, that would need to be added back? Would you
agree with me?
‘‘[The Witness]: That’s correct. And, I testified that
we did not do an analysis of that over—that business—
the breakdown between the disability and the business
overhead that’s included in that account.’’
The defendant also testified that he did not know
what portion of the coverage was attributed to business
overhead, stating that ‘‘[i]t’s all mixed together, and I
don’t understand . . . how to separate it.’’ When asked
whether he could obtain a breakdown, the defendant
stated that ‘‘it would probably take me a while speaking
to the agents, to figure out what the heck the breakdown
is on it.’’
In its memorandum of decision, the court stated that
it ‘‘accepts the analyses offered by the defendant’s
expert witness. The deduction taken for insurance
noted by the defendant’s expert is legitimate and rea-
sonable in amount.’’
‘‘[T]he trial court’s findings [of fact] are binding upon
this court unless they are clearly erroneous in light of
the evidence and the pleadings in the record as a whole.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Norberg-Hurlburt
v. Hurlburt, 162 Conn. App. 661, 672–73, 133 A.3d
482 (2016).
In his appellate brief, the defendant does not contend
that no portion of the disability insurance premiums
should have been added back into his earnings. Rather,
he emphasizes that adding back into his earnings ‘‘an
undetermined fraction of the $7974.18’’ would have no
impact on the finding of a substantial change in circum-
stances. We agree with the plaintiff that the court erred
in accepting the calculations of the defendant’s expert.
Both the defendant’s expert and the defendant himself
testified that some portion of the $7974.18 should have
been added back into the defendant’s adjusted gross
earnings as defined in the agreement. The court, how-
ever, found the insurance premium deduction to be
legitimate and reasonable. That finding is not supported
by the evidence and, therefore, is clearly erroneous.
The judgment is reversed only as to the defendant’s
motion to modify alimony and the case is remanded
for a new hearing on that motion; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
The plaintiff also claims on appeal that (1) the court erred in ‘‘not
considering [funds received from the United States Department of Health
and Human Services (HHS)] as income and appears to have not realized that
the defendant’s expert had removed the HHS moneys from his calculation
of adjusted gross income,’’ (2) the court abused its discretion in reducing
the amount of the defendant’s alimony obligation by $90,000 per year after
determining that the defendant’s income was $110,000 below the threshold
for modification, and (3) abused its discretion in ordering the modification
in alimony payments retroactive to the date she was served with the motion
for modification. Because we reverse the court’s judgment on the motion
for modification of alimony and remand the case for a new hearing on that
motion, we need not consider the plaintiff’s claim regarding the court’s
treatment of the HHS funds or her claims that the court abused its discretion
in reducing the amount of the alimony payments and ordering that the
modification be retroactive to the date of service. See Steller v. Steller, 181
Conn. App. 581, 599, 187 A.3d 1184 (2018). We will, however, consider the
plaintiff’s claim that the court erred in its treatment of the disability insurance
premiums, as this issue is likely to arise on remand.
Finally, the plaintiff claims on appeal that the court improperly denied
her motions for contempt, in which she alleged that the plaintiff was in
arrears on his alimony payments to her. The defendant responds, inter alia,
by noting that the plaintiff ‘‘provides no case law or statutory references
to support any aspect of her claim that the trial court’s decision with regard
to the motion for contempt was in error.’’ We conclude that the plaintiff’s
claim is inadequately briefed and, therefore, we decline to review it.
‘‘We repeatedly have stated that [w]e are not required to review issues
that have been improperly presented to this court through an inadequate
brief. . . . Analysis, rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the issue properly. . . .
[F]or this court judiciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set forth their arguments
in their briefs. . . . The parties may not merely cite a legal principle without
analyzing the relationship between the facts of the case and the law cited.’’
(Internal quotation marks omitted.) Scalora v. Scalora, 189 Conn. App. 703,
735–36, 209 A.3d 1 (2019). In the present case, the plaintiff’s brief is devoid
of citation to legal authority. The entirety of her briefing of this claim consists
of representations as to the defendant’s income, expenses, and arrearage,
and block quotations from the transcript of the hearing on the parties’
motions. The plaintiff has failed to proffer any authority or analysis in
support of her claim. Accordingly, we decline to review it.
2
The parties also agreed that ‘‘[t]he [defendant] shall not have the right
to file any motion(s) to modify alimony prior to December 31, 2020, if such
reduction is based upon a reduction of his earned income as calculated in
the manner set forth in the initial dissolution judgment and claimed to be
below the $350,000 gross income level required by the dissolution judgment
unless’’ certain preconditions were met. The court stated in its memorandum
of decision that it had determined, after a hearing, that the defendant had
met such preconditions.
3
The court also heard evidence with respect to a motion filed by the
plaintiff seeking contributions from the defendant for the private school
expenses of the parties’ youngest child. In its memorandum of decision, the
court denied this motion after finding that ‘‘the defendant does not have
sufficient resources with which to pay the plaintiff’s proposed order for
contribution.’’ The plaintiff does not challenge this ruling on appeal.
4
The court stated: ‘‘The court found both parties credible. The parties
are close in age, and both appear to be in good overall health. The court
notes that the defendant now has no significant assets other than his practice
and the equity in his personal residence . . . while the plaintiff’s assets
have remained steady since the time of judgment . . . . The plaintiff has
not worked in her field during the marriage; her earning capacity is therefore
much smaller than the defendant’s. The court understands that the plaintiff
relies on the alimony award to meet her current expenses and to maintain
her station in life. The plaintiff, however, currently has income from her
work as a preschool teacher. She also receives steady child support from
the defendant.
‘‘The court also understands that the parties’ marriage was a long one
and that the original alimony award represents a return on the plaintiff’s
significant investment over time in the defendant’s earning capacity. With
regard to the parties’ respective expenses, the court appreciates the plain-
tiff’s desire to continue the younger child’s private school education; the
child is doing well at the school, and she should continue her studies there
. . . . The court also takes into consideration the costs of the defendant’s
choice of daily transportation . . . . Nevertheless, after consideration of
all of the factors of § 46b-82, it is clear that an alimony payment of $2769.23
per week represents an unreasonable portion of the defendant’s current
earnings.’’ (Citations omitted; footnotes omitted; internal quotation marks
omitted.)
5
In support of this finding, the court noted that ‘‘[t]he defendant notified
the plaintiff in writing in advance in the spring of 2020 that it was unlikely
that he would be able to meet his obligations . . . .’’ (Citations omitted.)
For example, one such notification states: ‘‘As of today, I have heard that
my Emergency Payroll Loan (PPP Loan) application was accepted and sent
to the SBA for processing. I have not received any funds for that nor the
SBA Emergency Disaster Relief (EDIL Loan). The Dental Office has been
closed and there isn’t enough coming in to cover the overhead. I have
arranged for the child support payment to be paid in full from my personal
savings, and it will be transferred Fri. As for the Alimony, right now I simply
do not have the income to cover any of it. I was unable to even transfer
any money to myself. If/when these loans come in I will notify you and we
can figure things out. I just wanted to give you a heads up beforehand.’’
6
The plaintiff also had requested that the court articulate ‘‘how it consid-
ered the approximately $16,000 the defendant received from [the United
States Department of Health and Human Services (HHS)], which was consid-
ered taxable business income by the defendant’s expert as recently as [two]
weeks prior to hearing into the calculation of the defendant’s 2020 income.’’
On May 13, 2021, the plaintiff filed with this court a motion for review of
the denial of her motion for articulation. On June 16, 2021, this court granted
the plaintiff’s motion for review and granted, in part, the relief requested
therein. On June 21, 2021, the trial court issued its articulation with respect
to the HHS funds.
7
On May 26, 2021, the plaintiff filed a motion requesting that the court
stay its order directing her to reimburse the defendant for overpaid alimony
resulting from the court’s retroactive modification order, and the defendant
filed an objection thereto. The court denied the motion, and the plaintiff
filed a motion for review with this court. This court sua sponte ordered the
trial court to provide a memorandum of decision regarding its denial of the
plaintiff’s motion for a stay. On August 9, 2021, the trial court issued its
memorandum of decision, and, thereafter, this court granted the motion for
review but denied the relief requested therein.
8
We also note that neither party raises a claim on appeal that the trial
court erred in using the definition of ‘‘adjusted gross earnings’’ contained
in the parties’ agreement in determining that the defendant had shown a
substantial change in circumstances. Although the plaintiff’s counsel sug-
gested during oral argument before this court that the trial court was not
required to use the formula, the plaintiff does not raise the issue on appeal
as a claim of error.
9
Landwehr explained: ‘‘My understanding of gross receipts is from ser-
vices provided in the business, and this is not for services provided in
the business.’’
10
On cross-examination, the defendant’s counsel did not challenge Lanz-
aro’s determination that the usage of the PPP funds qualified for forgiveness.
11
Because there was no competent evidence that the PPP funds would
be required to be repaid, our conclusion does not implicate the long-standing
guidance that, generally speaking, a bona fide loan is not to be considered
in calculation of support. See, e.g., Birkhold v. Birkhold, supra, 343
Conn. 797–98.
12
The business owner’s ability to deduct the business expenses paid using
the PPP and EIDL funds is consistent with the inclusion of those funds in
the defendant’s gross business receipts as provided for in the agreement.
13
Although our disposition of the plaintiff’s claim in part I of this opinion
disposes of this appeal, we address this claim because it is likely to arise
on remand. See, e.g., Ferraro v. Ferraro, 168 Conn. App. 723, 733 n.7, 147
A.3d 188 (2016).
14
Because we address this claim as an issue likely to arise on remand,
we need not address whether the court’s determination was harmful. See
State v. Raynor, 337 Conn. 527 n.20, 561, 254 A.3d 874 (2020).