Ceddia v. Ceddia

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JEAN H. CEDDIA v. THOMAS M. CEDDIA
(AC 36978)
Lavine, Sheldon and Flynn, Js.
Argued November 17, 2015—officially released April 5, 2016

(Appeal from Superior Court, judicial district of New
London at Norwich, Hon. Joseph J. Purtill, judge trial
referee [dissolution judgment]; Carbonneau, J. [motions
to modify].)
Lloyd L. Langhammer, for the appellant (plaintiff).
Jonathan T. Lane, for the appellee (defendant).
Opinion

FLYNN, J. Before this court is the appeal by the
plaintiff, Jean Ceddia, from the judgment of the trial
court modifying an award of periodic alimony. The
court granted a motion by the defendant, Thomas Ced-
dia, for a downward modification of the alimony award
decreasing the amount from $1700 per week ordered
in the dissolution decree to $700 per week. The plaintiff
claims that the court erred in reducing the alimony
award. We disagree and affirm the judgment of the
trial court.
The following procedural history and factual findings
of the court are relevant to this appeal. The plaintiff
filed a dissolution action to end her marriage to the
defendant on September 15, 2010. The parties’ marriage
lasted approximately twenty-five years. The defendant
participated in extramarital affairs in 1999 and 2010,
which caused the plaintiff to suffer both mentally and
physically. Therefore, he was found to be more at fault
for the breakdown of the marriage than the plaintiff.
After a settlement was reached resulting in the marital
dissolution agreement, the judgment awarded the plain-
tiff two streams of alimony: $1700 per week for twelve
years and $400 per month for three years to apply to
her health insurance expenses. This original dissolution
judgment made the former nonmodifiable as to its
twelve year duration, but not as to amount.
Thereafter, in September and November, 2013,
respectively, both the defendant and the plaintiff filed
motions to modify the $1700 per week alimony award
in which they each alleged substantially changed cir-
cumstances. The defendant sought a downward modifi-
cation, which was granted. The plaintiff sought an
upward adjustment, which was denied, but has not been
appealed from. The defendant also moved to lower his
life insurance obligation to the plaintiff and to make
equal their contributions to an educational support
order, both of which requests were denied and are not
at issue in this appeal.
The trial court found that the plaintiff was in good
health at the time of the modification hearing. She is
an attorney who had been making $55,000 per year at
the time of the dissolution, but she left her position
with an area law firm and did not seek employment
with another firm. Instead, the plaintiff decided to open
her own practice, and at the time of the modification
hearing she was not realizing income. Nonetheless,
given her twenty-eight years of experience as an attor-
ney, twelve spent practicing in Connecticut, combined
with her vocational skills, she was found to have an
earning capacity of $75,000 per year. The plaintiff
derives a weekly interest income of $640 from her
assets. The plaintiff’s weekly expenses of $3200 were
found to have been nearly twice as great as her net
weekly income at the time of the modification. The
court also found that the plaintiff’s aggregate estate
was worth more than $2 million.
The defendant was found to have high blood pressure
and cholesterol levels. He is an emergency room physi-
cian with a base salary of $275,000 per year, which the
court found to be an increase of $80,000 per year more
than he had earned at the time of dissolution of the
marriage. This increase in the defendant’s income was
the plaintiff’s basis for requesting an upward modifica-
tion of the alimony award, and it was found by the
court to be a substantial change. The court also found
the defendant’s total net worth to be about $628,000,
approximately one-third of the plaintiff’s net worth.
The defendant claimed that the plaintiff’s circum-
stances had also changed from the date of dissolution,
because a trust, known as the Robert F. Hendren trust
(trust), of which she was a contingent beneficiary, that
she had valued on her financial affidavit at the time of
dissolution at $1 million was now vested and worth an
additional $500,000. In its memorandum of decision,
the court found that the plaintiff’s financial affidavit
executed at the time of the hearing on the dissolution
valued her interest in the trust at $1 million. Her finan-
cial affidavit, executed on the date of the May 13, 2014
modification hearing, indicated that after the death of
her father she received what was formerly a contingent
interest in the trust, and it was then worth $1.5 million.
The court found that increase to be a substantial
change.
After finding substantial changes in the financial cir-
cumstances of both parties, the court analyzed their
individual circumstances and subsequently reduced the
alimony award down to $700 per week from the original
$1700 weekly. The plaintiff has appealed from the judg-
ment awarding the defendant that modification.
In this appeal, the plaintiff claims that the court erred
in reducing her alimony for essentially three reasons.
The plaintiff first argues that the defendant had waived
any claim to the trust asset, which should bar him from
using a claimed increase in its value as the basis to
move to modify his alimony obligations downward. Sec-
ond, the plaintiff argues that she was awarded the com-
plete interest in the trust by the terms of the dissolution
judgment. She further contends that any increase in
value of this asset between the time of dissolution and
the time of the hearing on the motion for modification
‘‘was simply a conversion of an asset and should not
have been considered income or an asset for purposes
of assessing whether there had been a substantial
change of circumstances.’’ She also maintains that case
law permits a modification based on changed circum-
stances if there is a dramatic increase in the income of
one of the parties but that an increase in the value of
an asset ordinarily will not. Finally, her last argument
on appeal is that there is error in the court’s finding that
the valuation of the trust at the time of the modification
hearing at $1.5 million was a substantial change of cir-
cumstances. She makes this argument because
although the financial affidavit filed at the time of the
dissolution judgment valued the trust at $1 million, the
actual marital dissolution agreement that was made
part of the dissolution judgment provided, in relevant
part, that the trust that she was to retain may have a
value of ‘‘ONE MILLION (1,000,000.00) DOLLARS or
more.’’ (Emphasis added.) As a corollary of this asser-
tion, the plaintiff contends that the court improperly
put the burden of establishing the value of the remain-
der trust at the time of dissolution on her, when that
burden was properly that of the defendant, who was
the moving party seeking a downward modification of
his alimony obligations.
In reviewing a trial court’s judgment modifying ali-
mony on appeal, we employ a clearly erroneous stan-
dard concerning the court’s findings of fact. Costa v.
Costa, 57 Conn. App. 165, 168, 752 A.2d 1106 (1988).
‘‘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. Rostain
v. Rostain, 213 Conn. 686, 693, 569 A.2d 1126 (1990).’’
(Internal quotation marks omitted.) Costa v. Costa,
supra, 168.
We first take up the assertion that the defendant
waived any right to seek a modification based on an
increase in the value of the plaintiff’s contingent interest
in the trust, by virtue of the marital dissolution
agreement that was incorporated into the decree of
dissolution. We address this claim first because, if
waiver of the right to seek alimony modification had
occurred, it would be dispositive of the appeal. Para-
graph V (B) of the property settlement portion of that
agreement provided, in relevant part, that ‘‘[the plaintiff]
shall further retain ownership of any interest she may
have in any potential future inheritance and/or family
Trust(s) established by any of her prior relatives. This
shall specifically include but not be limited to the Robert
F. Hendren Trust dated February 23, 1973 which may
have a value of ONE MILLION ($1,000,000.00) Dollars
or more. [The defendant] shall waive any claims over
the same.’’ The plaintiff argues that the defendant can-
not now seek a modification of periodic alimony under
the guise of an increase in the value of an asset against
which he waived his right to ownership.
‘‘Waiver is the intentional relinquishment or abandon-
ment of a known right or privilege.’’ (Internal quotation
marks omitted.) New Haven v. Local 884, Council 4,
AFSCME, AFL-CIO, 237 Conn. 378, 385, 677 A.2d 1350
(1996). Waivers are narrowly construed. See State v.
Kemah, 289 Conn. 411, 426, 957 A.2d 852 (2008). The
language on which the plaintiff relies is part of several
sections of the marital dissolution agreement dealing
with the assignment of marital assets to each of the
parties to the dissolution. It does not relate to possible
later modifications of periodic alimony, but is a relin-
quishment on the part of the defendant as to the trust
corpus that the court adjudged, at the time of dissolu-
tion, should remain the plaintiff’s sole property. The
later modification of alimony did not deprive the plain-
tiff of any part of that trust that she was awarded as
her sole property at the time of dissolution.
We first note that General Statutes § 46b-86 (a) pro-
vides, in relevant part, that ‘‘[u]nless and to the extent
that the decree precludes modification, any final order
for the periodic payment of permanent alimony . . .
may, at any time thereafter, be . . . modified by the
court upon a showing of a substantial change in the
circumstances of either party . . . .’’ There is nothing
in the decree of dissolution that precludes a motion to
modify the amount of alimony that was awarded. In
Bartlett v. Bartlett, 220 Conn. 372, 381, 599 A.2d 14
(1991), our Supreme Court held that once a contingent
interest in a trust actually vested, ‘‘the [beneficiary’s]
financial circumstances changed substantially upon the
vesting of his inheritance, warranting the . . . motion
to open the judgment to increase the award of periodic
alimony.’’ The Bartlett court rejected the nonmovants’
argument against modification of alimony, namely that
the motion to modify was merely an artifice to effect
a new distribution of property in violation of § 46b-86.
Id., 382. The Bartlett court held that while it agreed that
the trial court had no authority to modify the original
property assignment, such an argument was irrelevant
because the defendant’s circumstances had changed
substantially due to his inheritance of certain property
and that could be considered in modifying upward the
award of periodic alimony he would be required to
pay. Id.
So too, in this case, the defendant does not seek to
obtain any part of the trust assets, but only to modify
downward the amount of alimony he would be required
to pay, because that asset had been received and was
no longer a contingency. See id., 381. The court’s modifi-
cation order did not award to the defendant any part
of the trust corpus awarded to the plaintiff in the decree
of dissolution of the marriage. ‘‘The fact that the trial
court has no authority to modify the assignment of
property made at dissolution; see General Statutes
§ 46b-86 (a); does not mean that the court cannot con-
sider a change in the value of that property in determin-
ing whether there has been a substantial change of
circumstances justifying the modification of an alimony
award.’’ Gay v. Gay, 266 Conn. 641, 648, 835 A.2d 1
(2003).
When the parties wished to preclude one aspect of
possible periodic alimony modification, they knew how
to do so. Their marital dissolution agreement specifi-
cally stated that the alimony was nonmodifiable as to
duration. However, the parties were silent as to any
similar restriction on any later modifications as to the
amount of periodic alimony. That omission leads us to
the conclusion that it was not barred by the marital
dissolution agreement or the judgment of dissolution
that incorporated the agreement’s terms. We therefore
reject this waiver claim.
We next address the plaintiff’s related assertion that
the court erred in reducing her alimony because she
was awarded the entire contingent interest in the trust
in the dissolution judgment and any increase in its value
between the time of dissolution and the modification
hearing was simply the conversion of an asset and was
thus neither income nor an asset that could be consid-
ered a substantial change of circumstances. We agree
that a party awarded an asset is entitled to any increase
in the value of that asset. However, the question before
us is not whether the plaintiff could keep any increase
in its value, but rather whether any such increase in
value could be considered a substantial change of cir-
cumstances sufficient to justify a modification of a peri-
odic alimony award payable to her. Our Supreme
Court’s precedent in Gay v. Gay, supra, 266 Conn. 648,
makes clear that such an increase can be considered
in ‘‘determining whether there has been a substantial
change of circumstances justifying the modification of
an alimony award.’’ We therefore are unpersuaded by
the plaintiff’s claim.
We next consider the plaintiff’s assertion arising out
of the disparity between the plaintiff’s financial affidavit
valuing the contingent interest in the trust at $1 million
and the judgment of dissolution that incorporated a
provision of the marital dissolution agreement provid-
ing that its value was $1 million or more. Both ‘‘[t]he
parties and the court are entitled to rely on the financial
affidavits submitted at the time of the dissolution, which
are presumed to be reliable for that purpose.’’ Fulton
v. Fulton, 156 Conn. App. 739, 749, 116 A.3d 311 (2015).
During the modification evidentiary hearing, when the
plaintiff was asked by the defendant’s counsel, ‘‘[a]s of
the date of dissolution you knew there was a trust but
you were never told what the value was, correct?’’; she
responded by saying ‘‘correct.’’ Upon further ques-
tioning by the defendant’s counsel regarding the trust,
the plaintiff’s counsel objected, stating, in relevant part,
‘‘I’m not sure how any of this is relevant if there’s a
number listed on her financial affidavit. . . . I mean,
the value, it wasn’t challenged then. That’s the value.’’
Upon further questioning, the plaintiff’s counsel again
objected, stating, in relevant part, ‘‘I’m not sure of the
relevance of any of this. It starts out at a million and
it’s pretty clear what’s there now.’’ The court sustained
the objections. Thus, further evidence, other than the
plaintiff’s valuation in her own financial affidavit, was
precluded from being entered as to the value of the
trust at the date of dissolution.
Furthermore, ‘‘[t]he general rule is that admissions,
if relevant and material, made by an attorney incidental
to the general authority of the attorney to represent
his client in connection with and for the purpose of
controlling the matter committed to him, are admissible
against the client.’’ Collens v. New Canaan Water Co.,
155 Conn. 477, 496, 234 A.2d 825 (1967). Therefore, the
‘‘[t]hat’s the value’’ statement made by the plaintiff’s
counsel regarding the valuation of the trust being $1
million at the time of dissolution was attributable to
the plaintiff.
What is being disputed is whether the court properly
relied on the financial affidavit filed at the time of the
dissolution judgment, which case law permits in fash-
ioning orders in domestic relations cases. Fulton v.
Fulton, supra, 156 Conn. App. 739. The objection by the
plaintiff’s counsel at the modification hearing prevented
the defendant’s counsel from going into the issue of
valuation at the time of dissolution. Her counsel further
made a concession regarding the value, that absent
fraud justifying a motion to open, ‘‘[t]hat’s the value.’’
The plaintiff cannot now claim for the first time on
appeal that the defendant did not satisfy his burden to
introduce evidence of valuation at the time of dissolu-
tion, when it was her counsel’s objections and conces-
sion that prevented the defendant from entering further
evidence at trial. Furthermore, the court, in its modifica-
tion decision, was entitled to rely on the plaintiff’s $1
million financial affidavit valuation filed as part of the
original dissolution proceeding and the concession of
the plaintiff’s attorney at the modification hearing that
$1 million was the value.
In her brief to this court, the plaintiff contends that
the trial court somehow improperly shifted the burden
of proof on modification from the defendant to the
plaintiff, as ‘‘[t]here exists no evidence in the [marital
dissolution] agreement, nor during the course of the
motion to modify alimony as to the precise value of the
trust on the date of dissolution.’’ We disagree. The court
noted in its opinion that the parties were in disagree-
ment about the ‘‘characterization’’ of the plaintiff’s inter-
est in the trust at the time of dissolution. That is an
apparent reference to whether the plaintiff’s remainder
interest in the trust was too speculative at the time of
dissolution to be subject to an award under § 46b-86.
The court opined that the characterization of the asset
was or should have been decided when the parties made
their marital dissolution agreement. No appeal was
taken from the dissolution judgment, which then
became final. When it became final, its adjudication
bound all of the parties to it, even if the plaintiff now
questions whether some part of it was erroneous. See
CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375,
395, 685 A.2d 1108 (1996), overruled in part on other
grounds by State v. Salmon, 250 Conn. 147, 154–55, 735
A.2d 333 (1999). If a judgment is claimed in some respect
to be erroneous, ‘‘the unsuccessful party’s remedy is to
have it set aside or reversed in the original proceed-
ings.’’ (Internal quotation marks omitted.) Id. That
seems to be the point of the court’s comment on the
parties’ differences concerning the characterization of
the interest in the trust, the corpus of which became the
plaintiff’s upon the death of her father. The dissolution
judgment necessarily determined that the nature of the
plaintiff’s then remainder interest in the trust was such
that its entire corpus could be awarded to her in the
division of marital property pursuant to her stipulation
and request. We therefore reject the plaintiff’s con-
tention that the court’s modification judgment imper-
missibly shifted the burden of proof from the defendant
to the plaintiff. In any event, the court made it plain in
its modification judgment that it ‘‘relied on the sworn
value of the asset at the time of dissolution and today:
$1 million originally and $1.5 million now.’’ That evi-
dence was before the court in the modification proceed-
ing in the form of the plaintiff’s own financial affidavits
executed at the time of the dissolution and the time
of the modification. On appeal, the parties are not in
disagreement about the $1.5 million value as of the date
of the modification hearing. The court’s finding as to
the valuation at the time of dissolution was made with
evidence from the plaintiff’s sworn financial affidavit, a
valuation with which the plaintiff’s trial counsel agreed
when he told the court: ‘‘That’s the value.’’ We are not
convinced by the plaintiff’s burden-shifting claim.
It is important to note that in deciding on the modifi-
cation, after determining that there had been a substan-
tial change of circumstances, the court took into
consideration all of the same criteria cognizable under
General Statutes § 46b-82 that determined the initial
alimony award. That is specifically permitted by § 46b-
86 (a), and in accordance with our Supreme Court’s
precedent. See Hardisty v. Hardisty, 183 Conn. 253,
258–59, 439 A.2d 307 (1981). The court made specific
findings on the twenty-five year length of the marriage,
the defendant’s major responsibility for a cause of the
dissolution, the respective ages of the parties, their
health, stations in life, occupations, amount and sources
of their income, vocational skills, employability, estate
sizes, needs of the parties, and the desirability of the
plaintiff seeking employment. The plaintiff has not
shown that the court abused its discretion in entering
judgment modifying the award of periodic alimony to
the plaintiff, nor has she shown that the court could
not have reasonably concluded as it did based on the
facts presented. See Rostain v. Rostain, supra, 213
Conn. 693.
The judgment is affirmed.
In this opinion the other judges concurred.