Peixoto v. Peixoto

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KATHERINE B. PEIXOTO v. MARK M. PEIXOTO
(AC 40599)
DiPentima, C. J., and Elgo and Pellegrino, Js.

Syllabus

The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting the plaintiff’s motion for a modification of alimony. The defen-
dant claimed that the trial court, in modifying alimony, improperly con-
strued the legal standards set forth by our Supreme Court in Dan v.
Dan (315 Conn. 1), in which the court held that an increase in the
supporting spouse’s income, standing alone, ordinarily will not justify
the granting of a motion to modify an alimony award unless the initial
alimony award was insufficient to fulfill the underlying purpose of the
award or if other exceptional circumstances exist. Held that the trial
court did not abuse its discretion in granting the plaintiff’s motion to
modify alimony: although the purpose of the alimony award ordered by
the court was unclear from the record, it was clear that the trial court
found that exceptional circumstances existed that warranted a modifica-
tion of the alimony award, as the dissolution court rendered its judgment
with minimum knowledge as to the earnings or debts of the defendant
because he did not appear or participate in the dissolution proceedings,
or file a financial affidavit, an agreement of the parties was not presented
to the dissolution court, which had been presented with inaccurate
information regarding the defendant’s income, and evidence submitted
at the modification hearing demonstrated that the defendant’s actual
base salary at the time of the dissolution was approximately 20 percent
more than previously thought; moreover, although the trial court recog-
nized that the lack of a stipulated agreement in this case was different
from the facts presented in Dan, where the parties had a stipulated
agreement, the court did not hold that the proscription on upward
modifications of alimony in Dan applied only when the parties entered
into a stipulation on alimony at the time of the initial dissolution, as
the court found other distinguishing factors that set this case apart from
Dan, including the defendant’s nonappearance in the dissolution case
and the lack of any financial information for the defendant, the trial
court properly determined that the evidence demonstrated a substantial
change in circumstances warranting a modification of alimony, and the
defendant’s claim that the trial court acted in contravention of the
standards set forth in Dan was unavailing.
Argued May 24—officially released October 2, 2018

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Hon.
Stanley Novack, judge trial referee; judgment dissolving
the marriage and granting certain other relief; there-
after, the court, Colin, J., granted the plaintiff’s motion
for modification of alimony and child support, and the
defendant appealed to this court. Affirmed.
Barbara M. Schellenberg, with whom, on the brief,
was Rachel A. Pencu, for the appellant (defendant).
Katherine B. Peixoto, the appellee (plaintiff), filed
a brief.
Opinion

PELLEGRINO, J. The defendant, Mark M. Peixoto,
appeals from the judgment of the trial court granting
the postjudgment motion for modification of alimony
filed by the plaintiff, Katherine B. Peixoto.1 On appeal,
the defendant claims that the court erred in granting
the modification of alimony after it ‘‘improperly con-
strued the legal standards set forth by the Connecticut
Supreme Court in Dan v. Dan, [315 Conn. 1, 105 A.3d
118 (2014)].’’ We affirm the judgment of the trial court.
The following procedural history, along with the facts
as found by the trial court, Colin, J., inform our review.
‘‘The marriage of the parties was dissolved on Decem-
ber 2, 2014. At that time, the parties had been married
for nearly nine years. They have two minor children
(now ages eleven and nine), who reside primarily with
the plaintiff-mother in a two-family home in Westport
. . . . Although the defendant resided in New Jersey
at the time of the dissolution of marriage action, he did
not file an appearance in the proceedings; thus, the
matter proceeded as an unopposed hearing before the
court . . . on December 2, 2014. A financial affidavit
for the defendant was not filed at that time. The court
entered certain financial orders.
‘‘The defendant was ordered to pay (1) child support
in accordance with the child support guidelines in the
amount of $320 per week; (2) $240 per week for
childcare expenses . . . which represented one half of
the childcare expenses at that time; and (3) periodic
alimony in the amount of $500 per month until the
death of either party, the remarriage of the plaintiff, or
December 31, 2019, whichever first occurs.
‘‘The plaintiff now seeks an increase in these financial
orders and alleges in her motion that ‘[a] substantial
change of circumstances has arisen since the entry of
the orders of the court on December 2, 2014, in that
the defendant’s income has significantly increased.’ She
now seeks (1) child support of $471 per week in accor-
dance with the current child support guidelines; (2) 55
[percent] of the cost of childcare expense . . . and (3)
$1500 per month in alimony. The plaintiff also seeks to
have these increased orders become effective retroac-
tively to the date of filing of her motion.’’2
The court also found: ‘‘The current child support
guidelines provide for a presumptive child support
award of $471 per week from [the defendant to the
plaintiff] and a division of unreimbursed medical
expenses and childcare contributions as follows: 55
[percent] to be paid by [the defendant] and 45 [percent]
to be paid by [the plaintiff]. This is based on the follow-
ing net weekly incomes: $1350 for [the plaintiff] and
$2683 by [the defendant].
‘‘The [defendant’s] net weekly income at the time of
$1669. However, that understated the defendant’s actual
income. The child support guidelines worksheet sub-
mitted to the dissolution court was based on the defen-
dant having a gross annual income of $125,000 per year.
The defendant’s actual base salary at that time was
$150,000 per year. This is the same base annual salary
that the defendant now earns from his current
employment.
‘‘The defendant’s gross annual income in 2016 was
$201,465. The dissolution court in 2014 assumed a gross
annual income of $125,000. Thus, the plaintiff has dem-
onstrated by a preponderance of the evidence that the
defendant’s income has substantially increased since
the date of the dissolution of marriage in 2014. As a
result, a modification of the current orders is appro-
priate.
‘‘The parties’ two minor children reside with [the
plaintiff] in Westport . . . . The defendant is entitled
to parenting time with them on alternating weekends
as per the parenting plan . . . . The plaintiff’s employ-
ment earnings have increased since the date of the
divorce from a gross annual income of $60,000 to a
gross annual income of $66,000. Since the date of disso-
lution, she has purchased a two-family home and now
receives rental income from two separate tenants. Her
gross yearly income in 2016 as shown on her financial
affidavit was $75,000.’’
Additionally, the court found: ‘‘The defendant has a
greater income and earning capacity than the plaintiff
. . . . Moreover, the dissolution court was not pro-
vided with a true and accurate picture of the defendant’s
actual income at that time. The defendant’s failure to
appear and participate in the dissolution action
deprived the dissolution court of the type of information
customarily utilized by the court at the time of a final
hearing. . . . Finally, the court has also considered
the assets and debts of the parties. The plaintiff has
assets with a total value of $149,577 and debts of
$64,489, and the defendant has total assets of $328,742
and debts of $41,030.’’
The court also considered whether the present case
presented exceptional circumstances that warranted a
modification. The court found that such exceptional
circumstances existed, namely: ‘‘(1) the defendant
failed to appear or participate in the dissolution pro-
ceeding; (2) the defendant failed to appear at the final
hearing; (3) the defendant failed to file a financial affida-
vit at or before the time of the final dissolution hearing;
(4) an agreement of the parties was not presented to
the dissolution court; [and] (5) the dissolution court
was presented with inaccurate information regarding
the defendant’s income . . . .’’
On the basis of these explicit findings, the court
granted the plaintiff’s motion to modify alimony and
child support. As to alimony, the court ordered: ‘‘Start-
ing June 15, 2017, the defendant shall pay additional
alimony to the plaintiff in an amount equal to [15 per-
cent] of the gross amount of his bonus income from
employment within [thirty] days of his receipt of a
bonus. The payment shall be accompanied by reason-
able documentation necessary for the plaintiff to verify
that she has received the correct amount. The defendant
is eligible for $60,000 in bonus compensation from his
current employer each year, which is paid in two install-
ments (July and December). Assuming the defendant
remains employed with his present employer at the
same level of compensation for the next three years,
and earns his maximum annual bonus of $60,000 per
year, then the plaintiff will receive [15 percent] of
$180,000 or $27,000, and the defendant will receive
$153,000. These payments shall be taxable to the plain-
tiff and deductible by the defendant. This division of
the defendant’s bonus income, if, as and when he earns
it, is fair and equitable under the circumstances of this
case after consideration of all of the factors set forth
in [General Statutes § 46b-82].’’3 This appeal followed.
On appeal, the defendant claims that the court
‘‘improperly construed the legal standards set forth by
our Connecticut Supreme Court in Dan v. Dan, [supra,
315 Conn. 1]’’ and that this misconstruction caused the
court to err by granting the plaintiff’s motion for modifi-
cation of alimony. The defendant argues in the first
paragraph of his appellate brief: ‘‘The trial court’s deci-
sion to modify alimony is in conflict with Dan . . . [a
case] which . . . [holds] that courts rarely have discre-
tion to grant an upward modification of alimony when
the only change in circumstance, postjudgment, is the
payor’s increase in income. The absence of a written
agreement between the parties was not a factor that
materially distinguished the instant case from Dan. Nei-
ther was there any exceptional circumstance that
allowed the trial court to exercise its discretion by
modifying the original alimony award. Accordingly, the
trial court’s judgment should be reversed.’’ We are not
persuaded by these arguments.
‘‘The well settled standard of review in domestic rela-
tions cases is that this court will not disturb trial court
orders unless the trial court has abused its legal discre-
tion or its findings have no reasonable basis in the facts.
. . . [T]he foundation for this standard is that the trial
court is in a clearly advantageous position to assess
the personal factors significant to a domestic relations
case . . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Notwithstanding
the great deference accorded the trial court in dissolu-
tion proceedings, a trial court’s ruling . . . may be
reversed if, in the exercise of its discretion, the trial
court applies the wrong standard of law.’’ (Internal quo-
tation marks omitted.) McKeon v. Lennon, 321 Conn.
323, 341–42, 138 A.3d 323 (2016).
In support of his claim, the defendant relies on our
Supreme Court’s holding in Dan, which provides that
‘‘an increase in the supporting spouse’s income, stand-
ing alone, ordinarily will not justify the granting of a
motion to modify an alimony award.’’ Dan v. Dan, supra,
315 Conn. 10. The defendant states that he does recog-
nize, however, that also pursuant to Dan, the trial court
retains discretion to modify an alimony award upon a
showing of a change in the payor’s income if exceptional
circumstances exist. See id., 17.
The defendant contends, nevertheless, that in this
instance the trial court: (1) ‘‘erroneously determined
that Dan’s proscription on upward modification of ali-
mony applies only when the parties entered into a stipu-
lation on alimony at the time of the initial dissolution’’;
(emphasis added); (2) ‘‘failed to appreciate that the
circumstances of the case at bar present just the type
of situation that is fully consistent with the policy
expressed by the [court in Dan] . . . [and] the fact that
[the] defendant did not participate in the dissolution
proceedings, appear at the dissolution hearing, or that
the parties did not present a written agreement to the
court in December, 2014, should have had no bearing
on Judge Colin’s decision’’; (citations omitted); and (3)
‘‘because it is clear that [the] plaintiff’s financial needs
were met at the time of the dissolution and continue
to be met . . . the inaccurate information regarding
[the] defendant’s income [at the time of the dissolution
judgment] should not have qualified as an ‘exceptional
circumstance’ so as to negate the application of Dan’s
general rule.’’ We are not persuaded.
First, we disagree with the defendant’s contention
that the court ‘‘erroneously determined that Dan’s pro-
scription on upward modification of alimony applies
only when the parties entered into a stipulation on
alimony at the time of the initial dissolution.’’ (Emphasis
added.) We do not read the court’s decision so narrowly.
Rather, it is quite clear that although the court recog-
nized that the lack of a stipulated agreement in this
case was different from the facts presented in the Dan
case, where the parties had a stipulated agreement,
that single factor was not the only distinguishing factor
found by the court. Indeed, the court also found that
the defendant’s nonappearance in his dissolution case,
and the lack of any financial information or a financial
affidavit from the defendant were further distinguishing
factors. The defendant’s failure to appear and to submit
any financial information to the dissolution court left
that court and the plaintiff ill-informed as to the defen-
dant’s actual income and expenses. The dissolution
court itself specifically stated that it was entering its
award ‘‘with minimum knowledge on the part of the
court as far as what the defendant earns and owes
. . . .’’ Accordingly, we agree with the trial court that
these factors distinguish this case from the facts pre-
sented in Dan.
Second, we disagree with the defendant’s contention
that the court ‘‘failed to appreciate that the circum-
stances of the case at bar present just the type of situa-
tion that is fully consistent with the policy expressed
by the [court in Dan] . . . [and] the fact that [the]
defendant did not participate in the dissolution proceed-
ings, appear at the dissolution hearing, or that the par-
ties did not present a written agreement to the court
in December, 2014, should have had no bearing on Judge
Colin’s decision.’’ (Citations omitted.) As explained in
the previous paragraph, Judge Colin found it relevant
that the dissolution court rendered its judgment, includ-
ing alimony orders, with ‘‘minimum knowledge’’ as to
the earnings or debts of the defendant because the
defendant did not appear or participate in the dissolu-
tion proceedings. We agree with Judge Colin that this
fact and the fact that evidence was presented at the
modification hearing that demonstrated that the defen-
dant had substantially more earnings, nearly 20 percent
more, at the time of the dissolution than was known
were important considerations in addressing the merits
of the motion to modify alimony. These were also distin-
guishing factors from the facts present in Dan.
Third, we disagree with the defendant’s contention
that the court did not consider the policy expressed in
Dan ‘‘because it is clear that [the] plaintiff’s financial
needs were met at the time of the dissolution and con-
tinue to be met . . . .’’ At the time the dissolution court
rendered judgment and entered its alimony orders, how-
ever, it did not state whether the alimony award was to
allow the plaintiff to continue to share in the defendant’s
standard of living after the divorce or whether it was
to provide the plaintiff with the same standard of living
that she had enjoyed during the marriage. We agree
with the defendant that in Dan, our Supreme Court
held that an increase in income, standing alone, does
not justify a modification of an alimony award unless
the initial alimony award was insufficient to fulfill the
underlying purpose of the award; Dan v. Dan, supra,
315 Conn. 15–16; or if other exceptional circumstances
exist. Id., 17.
More recently, however, in Cohen v. Cohen, 327 Conn.
485, 500–501, 176 A.3d 92 (2018), our Supreme Court
also explained: ‘‘[T]his court held in Dan that the trial
court should consider the purpose of the original ali-
mony award when determining whether an increase in
the supporting spouse’s income, standing alone, justi-
fies a modification. See Dan v. Dan, supra, 315 Conn.
11–15. In the present case, the original alimony award
in the separation agreement unambiguously provided
that the defendant would pay the plaintiff a percentage
of his income, up to a maximum of $250,000 annually.
The agreement did not indicate, however, whether the
purpose of the award was to allow the plaintiff to con-
tinue to share in the defendant’s standard of living after
the divorce or, instead, to provide her with the same
standard of living that she had enjoyed during the mar-
riage. If the defendant’s income prior to the divorce
had been steady over a long period of time and the
parties anticipated that he would have a similar income
for the foreseeable future, it would be reasonable to
conclude that the purpose of the original alimony award
was simply to maintain the plaintiff’s standard of living.
On the other hand, if the defendant’s income had fluctu-
ated widely from year to year before the divorce, it
would be reasonable to conclude that the purpose of
the award was to allow the plaintiff to continue to share
in the defendant’s income after the divorce, in both bad
times and good times. Because the separation
agreement itself was silent on this point, we conclude
that the trial court properly considered extrinsic evi-
dence . . . . ’’ Cohen v. Cohen, supra, 500–501.
In the present case, the dissolution court gave no
indication as to the purpose of the alimony award to
the plaintiff. We know that the award was based on the
assumed gross income of the defendant, who had been
nonappearing, of $125,000, with no information as to
the defendant’s net income. The plaintiff’s financial affi-
davit demonstrated that, at the time of the dissolution,
her gross wages were $60,008, and her mandatory
deductions were $11,440. She listed her expenses as
$73,424. In accordance with her request, the dissolution
court awarded alimony in the amount of $6000 per year.
Evidence submitted at the modification hearing dem-
onstrates that the defendant’s actual base salary at the
time of the dissolution was $150,000, approximately 20
percent more than previously thought. His gross income
in 2016 was $201,465, which consisted of a base salary
of $150,000 plus bonus income, and he listed mandatory
deductions in the amount of $70,876. The defendant
also listed his expenses as $109,876, which included
alimony and child support expenses. The court found
that the plaintiff’s gross income in 2016 was $66,000
from salary and $9,000 from rental income. Her financial
affidavit also reveals approximately $10,000 in bonus
income. She lists her mandatory deductions as $14,560,
and her expenses as $105,872. The court found that all
of these facts demonstrated a substantial change in
circumstances. We agree with that conclusion.
In Dan, our Supreme Court held that it was permissi-
ble for a court to order an upward modification of
alimony on the basis of an increase in the payor’s
income if either: (1) the initial alimony award was insuf-
ficient to fulfill the underlying purpose of alimony; or
(2) the court finds that other exceptional circumstances
exist. Dan v. Dan, supra, 315 Conn. 15–17. Although
the purpose of the alimony award ordered by the disso-
lution court may be unclear from the record, what is
clear is that Judge Colin, after an evidentiary hearing,
a review of the dissolution transcript and decision, and
in full consideration of Dan, found that exceptional
circumstances exist in this case that warrant a modifica-
tion of the alimony award. We find no abuse of discre-
tion in that conclusion. On the basis of the foregoing,
we conclude that the defendant’s claim that the trial
court acted in contravention of the standard and the
holding established by our Supreme Court in Dan, thus,
is unavailing.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court also modified the defendant’s child support obligation. The
defendant, however, does not claim any error with respect to that portion
of the judgment.
2
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support . . . may, at any time
thereafter, be continued, set aside, altered or modified by the court upon
a showing of a substantial change in the circumstances of either party or
upon a showing that the final order for child support substantially deviates
from the child support guidelines established pursuant to section 46b-215a,
unless there was a specific finding on the record that the application of the
guidelines would be inequitable or inappropriate. . . . No order for periodic
payment of permanent alimony or support may be subject to retroactive
modification, except that the court may order modification with respect to
any period during which there is a pending motion for modification of an
alimony or support order from the date of service of notice of such pending
motion upon the opposing party pursuant to section 52-50. If a court, after
hearing, finds that a substantial change in circumstances of either party has
occurred, the court shall determine what modification of alimony, if any,
is appropriate, considering the criteria set forth in section 46b-82.’’
3
General Statutes § 46b-82 (a) provides in relevant part: ‘‘In determining
whether alimony shall be awarded, and the duration and amount of the
award, the court shall consider the evidence presented by each party and
shall consider the length of the marriage, the causes for the annulment,
dissolution of the marriage or legal separation, the age, health, station,
occupation, amount and sources of income, earning capacity, vocational
skills, education, employability, estate and needs of each of the parties and
the award, if any, which the court may make pursuant to section 46b-81,
and, in the case of a parent to whom the custody of minor children has
been awarded, the desirability and feasibility of such parent’s securing
employment.’’