Johnson v. Johnson, 203 Conn. App. 405 (2021) (untimely appeal; inadequately briefed claims; plain error doctrine)
Officially released March 23, 2021
In Short: (1) Much ado about very little precedential value, or, to put it more bluntly, “full of sounds and fury, signifying nothing.” (2) If you agree in your separation agreement that child support and alimony may be modified retroactively even to the date of divorce in the event that you are later found to have had undisclosed rental income, you had better not have any undisclosed rental income. You will save the opposing party the time and effort of an Oneglia hearing.
The parties’ eighteen-year marriage was dissolved by separation agreement in 2016. The separation agreement provided that Husband would pay child support and alimony of $1,451/month and $2,166/month respectively. The separation agreement included a very unorthodox provision essentially stating that the orders did not take into account any rental income for properties owned by Husband, and allowing for a future modification of child support and alimony if such rental income were found later, retroactive to the date the income was found to have existed. The separation agreement retained jurisdiction over postsecondary education pursuant to Conn. Gen. Stat. §46b-56c.
In 2018, Wife filed a motion for educational support and a motion to modify child support and alimony on the grounds that Husband was receiving rental income. The trial court held three days of evidentiary hearings. The trial court found that Husband’s income was nearly $1,000/week higher than disclosed at time of dissolution, modified child support and alimony retroactive to date of dissolution, and ordered Husband to pay 80% of the allowable costs under § 46b-56c.
After various efforts at reargument were unsuccessful and one appeal was dismissed as untimely, the trial court found that Husband had willfully failed to comply with the educational support order. The trial court found that Wife borrowed funds at a rate of 6% to pay such costs and ordered Husband to reimburse Wife for the interest. Wife filed additional motions for contempt and Husband was found in contempt again. Husband filed another appeal and additional amendments to his appeal for each order, and continued to list those orders for which his appeal was dismissed as untimely on each amended appeal form.
The timely portions of Husband’s various appeals and amendments applied to the trial court’s post-judgment modification of child support and alimony, the entry of an educational support order, and the finding him in contempt for failure to comply with those orders.
Husband claimed on appeal that the trial court (1) committed plain error by imposing “its own findings and interpretation” as to the separation agreement” and “failed to act in a manner that projected impartiality” and (2) abused its discretion when it “issued numerous contradictory findings without changing its modified orders,” entered orders “beyond the statutory time frame” and “found [him] in contempt without making [the] requisite findings.”
The Appellate Court first summarized the plain error doctrine codified in Practice Book § 60-5, noting that it is “an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party.” The error must be plain and readily discernable on its face and must further be grievous in its consequences. It is not a doctrine of reviewability, but of reversibility, and so did not do anything to preserve the portions of Husband’s appeal that were untimely.
The Appellate Court determined that Husband failed to argue how any preserved aspect of his appeal, such as interpretation of the separation agreement, would meet the stringent requirements of plain error. In assessing Husband’s claims of plain error and judicial bias, the Appellate Court noted that adverse rulings alone cannot provide a basis for judicial bias, even if the rulings are erroneous. The Appellate Court determined that Husband’s claim of judicial bias arose solely from the adverse rulings against him, and therefore must fail.
The Appellate Court found that Husband’s claim of abuse of discretion based on contradictions was inadequately briefed and it declined to review it. The Appellate Court made the same finding as to claims of orders “beyond the statutory time frame.” Lastly, the Appellate Court found that the contempt findings included all necessary components and were amply supported by the record and not abuse of discretion.
It is not an ideal sign for your case when the Appellate Court drops this comment into a footnote: “Although there are two additional paragraphs contained under the heading of this claim, they are seemingly unrelated to the first two sentences and cannot be construed, even liberally, as constituting an intelligible argument.”
The Judgment was affirmed.
