Fogel v. Fogel

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ANGELA FOGEL v. RAFAEL FOGEL
(AC 44387)
Cradle, Clark and Harper, 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
granting the defendant’s motion to modify alimony. The separation
agreement that was incorporated into the judgment of dissolution
required the defendant to pay the plaintiff a percentage of his ‘‘income
from employment’’ as alimony. The dissolution judgment was subse-
quently modified by agreement of the parties, and that agreement deleted
the provisions defining ‘‘income from employment,’’ including language
pertaining to phantom income. After a hearing, the trial court granted
the defendant’s motion to modify alimony on the basis that he had been
involuntarily terminated from his employment at F Co., and, therefore,
concluded that he did not have the ability to pay his remaining alimony
obligation. On the plaintiff’s appeal to this court, held that the trial court
properly granted the defendant’s motion for modification of alimony:
the defendant testified that his termination from F Co. was involuntary,
partners and/or directors of F Co. testified that the defendant’s termina-
tion was involuntary, and because there was evidence that he was
involuntarily terminated, this court could not conclude that the court’s
factual determination was clearly erroneous; moreover, although the
plaintiff claimed that the court abused its discretion in declining to
consider phantom income allocated to the defendant in determining his
ability to pay alimony, the plaintiff relied on language in the dissolution
judgment that defined income from employment, and this reliance was
misplaced because the original judgment was superseded by the subse-
quent modification; furthermore, the court did not fail to consider the
applicable statutory (§ 46b-82) criteria, as the court referenced the statu-
tory factors and discussed many of them in its decision.
Argued February 15—officially released May 31, 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 Stamford-Norwalk and tried to the court, Scho-
field, J.; judgment dissolving the marriage and granting
certain other relief in accordance with the parties’ sepa-
ration agreement; thereafter, the court, Colin, J.,
approved a stipulation of the parties to modify the judg-
ment; subsequently, the court, Hon. Michael E. Shay,
judge trial referee, granted the defendant’s motion to
modify alimony, and the plaintiff appealed to this court.
Affirmed.
Kenneth M. Potash, with whom was Rebecca L. DeBi-
ase, for the appellant (plaintiff).
Campbell D. Barrett, with whom was Johanna S.
Katz, for the appellee (defendant).
Opinion

PER CURIAM. In this matter arising from the dissolu-
tion of the parties’ marriage, the plaintiff, Angela Fogel,
appeals from the judgment of the trial court granting
a motion to modify alimony filed by the defendant,
Rafael Fogel.1 On appeal, the plaintiff claims that the
court erred in (1) finding that the defendant had been
involuntarily terminated from his employment, (2)
declining to consider ‘‘phantom income’’2 for purposes
of determining the defendant’s alimony obligation, and
(3) failing to consider all of the factors set forth in
General Statutes § 46b-82 in deciding whether to modify
the defendant’s alimony obligation. We affirm the judg-
ment of the trial court.
The following procedural history is relevant to the
plaintiff’s claims on appeal. The marriage of the parties
was dissolved on February 5, 2009. Pursuant to the
separation agreement that was incorporated into the
judgment of dissolution, the defendant was required to
pay the plaintiff $16,666.67 per month as unallocated
alimony and child support, plus an additional percent-
age of his gross ‘‘income from employment,’’ until the
death of either party, the remarriage of the plaintiff, or
January 31, 2019, whichever occurred first. The term
‘‘income from employment’’ was defined in detail in
the separation agreement and provided, inter alia, that
‘‘[d]istributions which are solely distributions to pro-
vide for income taxes on phantom income and which
are indicated as such in a communication prepared in
the ordinary course of business from the payor to the
defendant, shall not be included as income from
employment in calculating support payments due.’’
On February 27, 2017, the dissolution judgment was
modified by agreement of the parties. The parties’ agree-
ment modified the dissolution judgment in that it deleted
the provisions that defined ‘‘income from employment,’’
including the language pertaining to ‘‘ ‘phantom income.’ ’’
The agreement also provided, inter alia, that the defen-
dant would make certain payments to the plaintiff as
alimony, until January 31, 2019, and that the payments
were modifiable only in the event that ‘‘[t]he defendant
is involuntarily terminated from his current job at Fal-
con Investment Advisors, LLC [(Falcon)] . . . .’’
On January 2, 2018, the defendant filed a motion to
modify alimony, alleging a substantial change in circum-
stances in that he had been involuntarily terminated
from his job at Falcon on May 12, 2017. On February
6, 2018, the plaintiff filed a motion for contempt, alleging
that the defendant unilaterally reduced his alimony pay-
ment to her for the month of February, 2018.
On November 2, 2020, following a three day hearing,
the court filed a memorandum of decision in which it
granted the defendant’s motion to modify alimony and
denied the plaintiff’s motion for contempt. The court
found that, although the defendant and Falcon had exe-
cuted a ‘‘Transition Agreement,’’ which indicated that
the defendant had ‘‘retired,’’ the defendant had, in fact,
been terminated involuntarily for making an investment
that cost Falcon more than $40,000,000. The court fur-
ther found that, since his termination, the defendant
had been unable to secure employment at a comparable
salary. The court therefore concluded that there had
been a substantial change in circumstances and that the
defendant did not have the ability to pay his remaining
alimony obligation. In so concluding, the court rejected
the plaintiff’s argument that the defendant had the abil-
ity to pay based on his receipt of approximately $3.2
million in ‘‘ ‘phantom income’ ’’ in 2018. The court held
that the ‘‘ ‘phantom income’ ’’ was ‘‘not available to the
defendant for his use’’ and declined to consider it in
determining his ability to pay alimony. Accordingly, the
court granted the defendant’s motion to modify and
terminated his alimony obligation. The court also found
that the plaintiff failed to meet her burden to demon-
strate that the defendant wilfully failed to pay the ali-
mony order and denied her motion for contempt. This
appeal followed.
On appeal, the plaintiff claims that the court erred
in (1) finding that the defendant had been involuntarily
terminated from his employment, (2) declining to con-
sider ‘‘phantom income’’ for purposes of determining
the defendant’s alimony obligation, and (3) failing to
consider all of the factors set forth in § 46b-82 in decid-
ing whether to modify the defendant’s alimony obliga-
tion. We disagree.
‘‘[T]he standard of review in family matters is well
settled. 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 pre-
sented. . . . 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. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. . . . 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 convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Coleman v. Bembridge, 207
Conn. App. 28, 33–34, 263 A.3d 403 (2021).
The plaintiff first argues that the court erroneously
found that the defendant was involuntarily terminated
from his position at Falcon, where there was ‘‘evidence
that he [had] retired.’’ In so arguing, the plaintiff misun-
derstands the scope of our review. In determining whether
a trial court’s factual finding is clearly erroneous, we
examine the record to determine whether there is any
evidence to support that finding, not whether there is
evidence to support a different finding or whether there
is an alternative interpretation of the evidence. At the
hearing, the defendant testified that his termination
from Falcon was not voluntary. Five of the partners and/
or directors of Falcon also testified that the defendant’s
termination was not voluntary. Thus, although the tran-
sition agreement between the defendant and Falcon
indicated that the defendant retired, there was evidence
presented to the court that he was involuntarily termi-
nated. Because there is evidence in the record that
supports the court’s finding that the defendant was
involuntarily terminated, we cannot conclude that this
factual determination was clearly erroneous.
The plaintiff next argues that the court abused its
discretion in declining to consider ‘‘phantom income’’
allocated to the defendant in 2018 in determining his
ability to pay alimony. In so arguing, the plaintiff relies
heavily on the language of the original dissolution judg-
ment that set forth a detailed definition of the term
‘‘income from employment,’’ which, the plaintiff con-
tends, did not exclude ‘‘phantom income.’’ The plain-
tiff’s reliance on the original dissolution judgment is
misplaced because that judgment was modified in 2017,
deleting the definition of ‘‘income from employment’’
on which the plaintiff now relies. The plaintiff concedes
that the dissolution judgment was superseded by the
parties’ 2017 agreement.3 The plaintiff’s argument is
therefore without merit.4
Finally, the plaintiff contends that the court failed to
consider the statutory criteria set forth in § 46b-825
when it terminated the defendant’s alimony obligation.
Specifically, the plaintiff asserts that the court consid-
ered only the defendant’s net income. The plaintiff’s
argument is belied by the court’s memorandum of deci-
sion, in which the court specifically referenced the stat-
utory factors and discussed many of them, such as
the age, health and education of the parties, and their
respective incomes. It is well settled that a court need
not recite each of the statutory factors that it considers
or give equal weight to those factors. Oudheusden v.
Oudheusden, 338 Conn. 761, 769, 259 A.3d 598 (2021).
Moreover, the plaintiff’s argument in this regard is sim-
ply a recasting of her claim that the trial court failed
to consider the defendant’s ‘‘phantom income’’ when it
determined that he no longer had the ability to pay
alimony. Because we have concluded that the court did
not err in doing so, this claim also fails.
The judgment is affirmed.
1
Although the appeal form filed by the plaintiff indicates that she is
appealing from the trial court’s November 2, 2020 decision, in which the
court also denied the plaintiff’s motion for contempt that alleged that the
defendant had wilfully failed to pay his alimony obligation, the plaintiff has
not challenged the court’s denial of her motion for contempt in her brief
to this court.
2
‘‘Phantom income is an accounting term given to income generated by
[a] . . . limited liability company . . . or [a] . . . limited partnership
. . . that hasn’t been distributed to the members. It’s called phantom income
because it exists on paper. It’s taxable income and you pay tax on it, even
though there is no cash that comes to you.’’ (Internal quotation marks
omitted.) Bongiorno v. J & G Realty, LLC, Docket No. CV-XX-XXXXXXX-S,
2019 WL 1875510, *28 (Conn. Super. March 12, 2019).
3
Because the 2017 modification superseded the 2009 judgment, we need
not determine whether the plaintiff’s interpretation of the 2009 judgment
is correct.
4
At oral argument before this court, the plaintiff’s counsel argued that
the trial court made a legal error in declining to consider the defendant’s
‘‘phantom income’’ in determining his ability to pay alimony. Because the
plaintiff raised this issue for the first time at oral argument, it is not properly
before us. Rousseau v. Weinstein, 204 Conn. App. 833, 855, 254 A.3d 984
(2021) (‘‘[i]t is well settled that claims on appeal must be adequately briefed,
and cannot be raised for the first time at oral argument before the reviewing
court’’ (internal quotation marks omitted)).
5
General Statutes § 46b-82 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
. . . .’’