Berman v. Berman, 203 Conn. App. 300 (2021) (argument and examination questions do not constitute evidence)
Officially released March 16, 2021
In Short: Argument and examination questions do not constitute evidence and reliance on them to support a finding is clearly erroneous. This is a good case to cite when dealing with a pro se litigant.
The parties were divorced by separation agreement in 2013 after thirty-seven years of marriage. Both parties were represented by counsel at time of Judgment. Under the terms of the Judgment, Husband was to pay $8,000 per month after the sale of certain properties until death of either party or remarriage of Wife. Husband was further to be responsible for Wife’s health insurance and $1m in term life insurance.
In 2018, Husband filed a motion to modify his alimony and insurance obligations, alleging a substantial decrease in his income since the date of dissolution. An evidentiary hearing was held in 2018 at which both parties testified. Husband was represented by counsel, and Wife was self-represented.
Husband testified that he is a 68-year-old medical doctor and provided evidence that his income had decreased substantially. Wife asked questions of Husband, during cross-examination, regarding her allegedly giving up equity in Husband’s medical practice in exchange for alimony, but Husband did not so testify, and Wife was cautioned that her questions were not testimony. Wife made such claims again on closing argument but did not testify in support of those claims.
The trial court denied Husband’s motions (with one de minimis exception) and found that Wife had given up other claims in exchange for Husband’s alimony and insurance obligations.
On appeal, Husband claims that the court erred in (1) finding that Wife had ceded claims she might have had at the time of the dissolution of the parties’ marriage in exchange for lifetime alimony, (2) denying Husband’s motion for modification of alimony on the basis of that finding and its finding that Wife had given up claims during the dissolution proceedings as part of the mosaic, and (3) denying Husband’s motion for modification of alimony after finding that his income had decreased by approximately 32 percent since the date of the dissolution.
The Appellate Court reviewed the decision under the abuse of discretion standard. The Appellate Court noted that § 46b-86 places the burden of showing a substantial change in circumstances for modification of alimony upon the moving party. The Appellate Court further noted that separation agreements are construed in the manner of contracts, and where only one interpretation is possible, the court need not look outside of the four corners of the contract.
As to Wife’s first claim, the Appellate Court agreed with Husband that there was no evidence in the record to support the trial court’s finding that an exchange of assets for alimony had occurred. Closing argument and questions are not evidence.
As to Wife’s second claim, the Appellate Court again agreed with Husband that the finding that Wife had given up claims during dissolution was clearly erroneous. The Appellate Court found that, while the trial court made no express finding regarding a substantial change in circumstances, it made an implicit finding of a substantial change based on its factual findings as to Husband’s decreased income. Thus, the Appellate Court reasoned that the trial court found a substantial change in circumstances, but then chose not to modify alimony based, in part, on the clearly erroneous finding that Wife had given up claims in the dissolution in exchange for alimony and insurance. There was nothing in the agreement nor evidence offered at the hearing to support this claim. Because the decision was predicated on this clearly erroneous finding, it must be reversed.
The Appellate Court did not address Husband’s third claim of abuse of discretion. The Judgment was reversed and remanded for a new hearing.