Moyher v. Moyher

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SARAH A. MOYHER v. PAUL J. MOYHER III
(AC 41795)
DiPentima, C. J., and Keller and Flynn, Js.

Syllabus

The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff, and entering certain related
financial orders. The trial court determined, referencing the applicable
statute (§ 46b-81 (c)), that certain real property constituted marital prop-
erty subject to equitable distribution. Held:
1. The defendant could not prevail on his claim that the trial court improperly
found that certain real property located in New Hampshire was a marital
asset and improperly awarded the plaintiff 40 percent of its value; the
court explicitly referred to the factors in § 46b-81 (c) in determining
that the New Hampshire property was marital property, considering the
contributions both parties made in designing, building and maintaining
the house, and the time spent there by both parties over the course of
the marriage, and the court’s award of 40 percent of the New Hampshire
property to the plaintiff was not an abuse of discretion because the
court found that the plaintiff contributed significantly to the finances
of the marriage.
2. This court declined to review the defendant’s unpreserved claim that the
trial court abused its discretion in not allowing him to present evidence
regarding an alleged prenuptial agreement between the parties: the trial
court stated on the record that the defendant, prior to trial, had with-
drawn his clam for enforcement of a prenuptial agreement, and,
although, in his brief to this court, the defendant argued that he sought
to introduce evidence of a prenuptial agreement, and that, in chambers
on the morning of trial, the court stated that it would not allow evidence
of a prenuptial agreement to be presented because the defendant was
unable to provide a signed agreement, there was nothing in the record
to allow this court to review the defendant’s claim; no objection was
made on the record to the court’s statement at the opening of trial that
it would not consider evidence of the alleged prenuptial agreement, and
the defendant neither offered the agreement as an exhibit for identifica-
tion purposes nor made any offer of proof.
3. The trial court abused its discretion in ordering the defendant to pay the
plaintiff her share of the New Hampshire property within five months
of the dissolution judgment as the court did not properly consider the
factors in § 46b-81 in making that order; the court noted that the defen-
dant was an accountant but worked only sporadically throughout the
marriage, and the court prohibited the defendant from encumbering the
property, which prevented him from attempting to obtain a mortgage
on the property to pay the judgment; in light of the defendant’s lack of
employment, assets or other sources of income, the court’s order was
an abuse of discretion.
Argued February 3—officially released June 23, 2020

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New London, where the court, Devine, J., ren-
dered judgment dissolving the marriage and granting
certain other relief, from which the defendant appealed
to this court. Reversed in part; further proceedings.
James E. Nealon, for the appellant (defendant).
Matthew G. Berger, with whom was Lorraine Eckert,
for the appellee (plaintiff).
Opinion

DiPENTIMA, C. J. The defendant, Paul J. Moyher III,
appeals from the judgment of the trial court dissolving
his marriage to the plaintiff, Sarah A. Moyher, and enter-
ing related financial orders. On appeal, the defendant
claims that the court abused its discretion by (1) finding
that certain real property located in New Hampshire
was a marital asset and awarding the plaintiff 40 percent
of its value, (2) not allowing the defendant to present
evidence at trial regarding a prenuptial agreement
between the parties, and (3) ordering the defendant to
pay the plaintiff her awarded share of the New Hamp-
shire real property, $150,750 plus interest, within five
months of the dissolution judgment. We disagree with
the defendant’s first two claims; however, we agree that
the court abused its discretion in ordering the defendant
to pay the plaintiff her share of the New Hampshire
property within five months of the dissolution judg-
ment. Accordingly, we reverse that part of the judgment
of the trial court and remand for further proceedings
in accordance with this opinion.
The following facts, as found by the trial court, and
procedural history are relevant to this appeal. The par-
ties were married on November 4, 2006, in East Haddam
and did not have any children. By complaint dated July
7, 2016, the plaintiff sought a dissolution of the marriage
and a fair division of property and debts. The defendant
then filed an answer admitting all of the allegations in
the plaintiff’s complaint and a cross complaint seeking
a fair division of the property and debts, alimony and
enforcement of the parties’ prenuptial agreement.1
On September 7, 2017, the court, Devine, J., rendered
judgment dissolving the parties’ marriage and entered
financial orders in a memorandum of decision. The
court determined that a house, located near the Cana-
dian border at 218 Spooner Road, Pittsburgh, New
Hampshire (New Hampshire property), constituted
marital property subject to equitable distribution. This
determination is at the center of this appeal.2
We begin by setting forth the well settled standard
of review. ‘‘An appellate court will not disturb a trial
court’s orders in domestic relations cases unless the
court has abused its discretion or it is found that it
could not reasonably conclude as it did, based on the
facts presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Further-
more, [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.) Merk-
Gould v. Gould, 184 Conn. App. 512, 516–17, 195 A.3d
458 (2018).
I
First, the defendant claims that (1) the trial court’s
finding that the New Hampshire property was marital
property was clearly erroneous and (2) the court’s
award of 40 percent of the property to the plaintiff was
an abuse of discretion. We disagree.
In 2001, prior to the marriage but during his relation-
ship with the plaintiff, ‘‘the defendant purchased a par-
cel of land in New Hampshire intended for snowmobil-
ing. The defendant took out a mortgage to purchase
the lot and later a construction mortgage in the amount
of $149,000. The plaintiff and the defendant both
enjoyed snowmobiling and other activities as evidenced
by their purchase of multiple snowmobiles and other
winter vehicles. The land was cleared by the plaintiff,
the defendant and mutual friends. The house was
designed with input from both and a builder friend with
[subcontractors performing] the framing and roofing.
The parties worked on the floors together [and] the
defendant and a friend [performed] the plumbing and
electrical work. The plaintiff requested that her name
be added to the deed and mortgage but the defendant
refused.’’ (Footnote omitted.) The court noted that the
plaintiff also spent significant time traveling to the New
Hampshire property ‘‘from her various places of
employment to be with the defendant on the weekends
in the winter to cook, clean and enjoy the snowmobiling
. . . with the defendant. She worked all week during
the year, but traveled to New Hampshire during the
winter weekends from Connecticut, Pennsylvania and/
or Massachusetts.’’
The court further found that the plaintiff made ‘‘sub-
stantial contributions to the pay down of the New
Hampshire lot purchase and mortgage resulting in a
total payoff and release by 2012.’’ Indeed, ‘‘[a]ll of [the
plaintiff’s] income went to [the defendant’s] bank
account to pay triple mortgage payments on the defen-
dant’s New Hampshire home and other bills . . . .’’
Although a trial court is afforded broad discretion
when distributing marital property, it must take into
account several statutory factors when making its deter-
mination. See Greco v. Greco, 275 Conn. 348, 354–55,
880 A.2d 872 (2005). These factors are enumerated in
General Statutes § 46b-81 (c). Section 46b-81 (c) pro-
vides: ‘‘In fixing the nature and value of the property,
if any, to be assigned, the court, after considering all
the evidence presented by each party, 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, vocation skills, education,
employability, estate, liabilities and needs of each of
the parties and the opportunity of each for future acqui-
sition of capital assets and income. The court shall also
consider the contribution of each of the parties in the
acquisition, preservation or appreciation in value of
their respective estates.’’ Although the trial court ‘‘need
not give every factor equal weight . . . or recite the
statutory criteria that it considered in making its deci-
sion or make express findings as to each statutory fac-
tor, it must take each into account.’’ (Internal quotation
marks omitted.) Greco v. Greco, supra, 275 Conn. 355.
In its memorandum of decision, the court explicitly
referred to the factors set forth in § 46b-81(c) in
determining that the New Hampshire property was mar-
ital property. The court properly considered the contri-
butions, financial and otherwise, that both parties had
made in designing, building and maintaining the house.
The court particularly noted the substantial financial
contributions the plaintiff made that allowed the defen-
dant to make triple payments on his construction mort-
gage. The court also considered the time spent there
by both parties over the course of the marriage. There-
fore, the finding that the New Hampshire property was
marital property subject to distribution was not
clearly erroneous.
Further, the court’s award of 40 percent of the New
Hampshire property to the plaintiff was not an abuse
of discretion. Not only did the court find that the plain-
tiff had contributed significantly to the planning, fund-
ing and maintaining of the New Hampshire property,
the court found that the plaintiff had contributed signifi-
cantly to the finances of the marriage. The court stated
that ‘‘[t]he plaintiff’s contributions of income from 2007
to 2017 totals approximately $593,000. All of her net
income from employment deposited into the defen-
dant’s checking account has been spent. The plaintiff
has contributed substantially more money than the
defendant to the marriage debts and expenses. The
defendant’s employment net income from 2004 to pres-
ent is dwarfed by that of the plaintiff.’’ Accordingly, we
reject the defendant’s first claim.
II
Next, the defendant claims that the court abused its
discretion by not allowing him to present evidence at
trial regarding a prenuptial agreement between the par-
ties, which would have precluded her from receiving
any interest in the New Hampshire property. Because
this claim was not preserved at trial, we decline to
review it.
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal. . . .
[A]n appellate court is under no obligation to consider
a claim that is not distinctly raised at the trial level.
. . . [B]ecause our review is limited to matters in the
record, we [also] will not address issues not decided
by the trial court. . . . The purpose of our preservation
requirements is to ensure fair notice of a party’s claims
to both the trial court and opposing parties. . . . These
requirements are not simply formalities. They serve to
alert the trial court to potential error while there is still
time for the court to act. . . . The reason for the rule
is obvious: to permit a party to raise a claim on appeal
that has not been raised at trial—after it is too late for
the trial court or the opposing party to address the
claim—would encourage trial by ambuscade, which is
unfair to both the trial court and the opposing party.’’
(Internal quotation marks omitted.) Guddo v. Guddo,
185 Conn. App. 283, 286–87, 196 A.3d 1246 (2018). See
Practice Book § 60-5 (providing that appellate court is
not bound to consider claim that is not distinctly raised
at trial or arising subsequent to trial).
In its memorandum of decision, the court states that
‘‘[t]he defendant, prior to the commencement of the
trial, withdrew his claim for enforcement of an alleged
prenuptial agreement.’’ At the start of trial, the court
stated the following on the record: ‘‘[An] issue came
up about apparently there was a cross complaint filed by
the defendant, seeking enforcement of an antenuptial
or prenuptial agreement. Counsel have indicated to me
that that’s not [going to] be raised in the case. I should
state for the record that I did read what was purported
to be a prenuptial agreement, which apparently was
not signed by all of the parties. The court will then as
a matter of law, disregard it. And, as a matter of fact,
not take it into any consideration in this case.’’ In his
brief, the defendant states that he sought to introduce
evidence at trial that a prenuptial agreement signed by
both parties existed and ‘‘that its disappearance under
the circumstances presented strongly supported the
inference that [the] plaintiff had likely played some role
in its disappearance.’’ The defendant further states that
in chambers the morning of trial, the court stated that
it would not allow evidence of a prenuptial agreement
to be presented because the defendant was unable to
provide evidence of a signed agreement. Notwithstand-
ing the defendant’s argument in his brief, there is noth-
ing in the record that allows us to review this claim.
No objection was made on the record to the court’s
statement at the opening of trial, and the defendant
neither offered the agreement as an exhibit for identifi-
cation purposes nor made any offer of proof. Further, no
motion for rectification was filed pursuant to Practice
Book § 66-5 to attempt to preserve the discussions in
chambers. See State v. McIntyre, 242 Conn. 318, 332–33,
699 A.2d 911 (1997) (noting that discussions held in
chambers that are not reflected on record cannot dis-
place rulings on record). Thus, the defendant failed to
properly preserve the claim of the existence of a signed
prenuptial agreement for our review. Accordingly, we
decline to review the plaintiff’s claim.
III
Finally, the defendant claims that, even if this court
affirms the trial court’s distribution of the marital prop-
erty, the court abused its discretion by ordering the
defendant to pay the plaintiff her awarded share of the
New Hampshire property, $150,750 plus interest, within
five months of the dissolution judgment. We agree.
As discussed previously in this opinion, while the
court has broad discretion in fashioning financial
awards, it must consider certain factors enumerated in
§ 46b-81 in determining the award. Greco v. Greco,
supra, 275 Conn. 354–55. These factors include ‘‘the
age, health, station, occupation, amount and sources
of income, earning capacity, vocation skills, education,
employability, estate, liabilities and needs of each of
the parties and the opportunity of each for future acqui-
sition of capital assets and income.’’ General Statutes
§ 46b-81. Further, although the trial court ‘‘need not
give every factor equal weight . . . it must take each
into account.’’ (Internal quotation marks omitted.)
Greco v. Greco, supra, 355.
Although the court properly considered these factors
in determining that the New Hampshire property was
marital property and in determining the plaintiff’s share,
it did not do so when it ordered the defendant to pay
the plaintiff her awarded share within five months of
the dissolution judgment. It is well settled that ‘‘the
defendant’s ability to pay is a material consideration
in formulating financial awards.’’ (Internal quotation
marks omitted.) Pellow v. Pellow, 113 Conn. App. 122,
129, 964 A.2d 1252 (2009).
The court noted that the defendant was an accountant
but had worked only sporadically and on a part-time
basis throughout the marriage. It further noted that at
the time of trial the defendant was unemployed and
had not worked since November, 2016. The defendant
testified that he planned to find employment after the
divorce was completed, but did not state that he had
any definite leads on job opportunities. The court found
that the defendant’s net income from employment from
2004 to the time of trial was ‘‘dwarfed by that of the
plaintiff’’ and, at the end of the marriage, the parties
had little to no cash reserves or assets, apart from the
New Hampshire property.3 Further, the court prohibited
the defendant from encumbering the property, which
prevented him from attempting to obtain a mortgage
on the property to pay the judgment.
In light of the defendant’s lack of employment, assets
or other sources of income, including his inability to
mortgage the property, and his sporadic employment
history, the court’s order that the defendant pay the
plaintiff’s award within five months of the dissolution
judgment was an abuse of discretion. Accordingly, we
reverse the trial court’s order that the defendant pay
the plaintiff her share of the New Hampshire property
within five months of the dissolution judgment.
Financial orders ‘‘in dissolution proceedings [have
been characterized] as resembling a mosaic, in which
all the various financial components are carefully inter-
woven with one another. . . . Accordingly, when an
appellate court reverses a trial court judgment on the
basis of an improper alimony, property distribution,
or child support award, the appellate court’s remand
typically authorizes the trial court to reconsider all
financial orders. . . . We also have stated, however,
that [e]very improper order . . . does not necessarily
merit a reconsideration of all the trial court’s financial
orders. A financial order is severable when it is not in
any way interdependent with other orders and is not
improperly based on a factor that is linked to other
factors. . . . In other words, an order is severable if
its impropriety does not place the correctness of the
other orders in question. . . . Determining whether an
order is severable from the other financial orders in a
dissolution case is a highly fact bound inquiry.’’ (Inter-
nal quotation marks omitted.) Merk-Gould v. Gould,
supra, 184 Conn. App. 523.
In the present case, we conclude that the court’s
order that the defendant pay the plaintiff’s award within
five months of the dissolution judgment is severable
from the court’s other determinations. The other finan-
cial orders related to personal property and the court’s
order that the plaintiff pay the defendant alimony, nei-
ther of which were challenged on appeal. The court’s
determination that the New Hampshire property was
marital property is neither interdependent with the
other orders nor was it based on a factor linked to other
orders. Accordingly, we conclude that the court on
remand is limited to its consideration of the payment
order.
The judgment is reversed with respect to the order
that the defendant pay the plaintiff her portion of the
marital property within five months of the dissolution
judgment and the case is remanded for further proceed-
ings in accordance with this opinion; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
Prior to the start of trial, the defendant withdrew his claim for enforce-
ment of an alleged prenuptial agreement.
2
After this appeal was ready for argument, the defendant filed a motion
to open the judgment in the trial court, alleging fraud and mutual mistake.
The trial court denied the motion on December 17, 2019, and the defendant
appealed that decision; this court subsequently rejected the defendant’s
appeal. See Moyher v. Moyher, Docket No. AC 43927 (appeal rejected Febru-
ary 13, 2020).
3
Both the defendant’s father and the plaintiff’s mother made significant
financial contributions to both parties throughout the marriage. The defen-
dant’s father gave cash gifts to both parties and the plaintiff’s mother funded
a bank account, originally created for the plaintiff’s use during college,
which was accessible to both parties. At the time of trial, however, the
parties were without any cash reserves, despite these sources of income.