Ingles v. Ingles, 216 Conn. App. 782 (2022) (burden-shifting on contempt; valuation of pensions)
Officially released: December 6, 2022
In short: (1) The moving party for contempt must establish a prima facie case of wilful non-compliance before the burden of proving non-wilfulness shifts to the alleged contemnor, (2) the parties did not provide formal valuations of their competing defined benefit pensions, and, therefore, the trial court did not abuse its discretion by letting each party simply keep his/her own (irrespective of the potential delta in values), and (3) abuse of discretion arguments are unlikely to prevail on appeal.
The parties were married in 1999 and had two adult children. Wife filed for divorce in 2019. At the time of the divorce, Husband was fifty and had been a New Haven police officer since 2002. Husband had been involved in a serious work accident and had a pending civil action and workers’ compensation claim from the accident, but had returned to work. Wife was fifty-three, had been employed with DCF since 1998, and was in good health, although she claimed medical issues, one of which involved workers’ compensation. She was working toward a bachelor’s degree.
The divorce was tried over three days before Judge Kenefick, who dissolved the parties’ marriage and entered financial orders. The trial court found Husband more at fault for the breakdown due to several affairs. The trial court awarded Wife the marital home with equity of $71k and ordered that she refinance within two years or sell the property. Husband was ordered to transfer 75% of his 457 plan, valued at $40k. Each party was to retain his/her own pension, own workers’ comp and lawsuit claims, and pay his/her own counsel fees. Husband was ordered to pay alimony of $250 per week for two years in order to provide support to Wife while she refinanced the mortgage on the marital residence. The trial court denied Wife’s pendente lite motion for contempt for Husband’s failure to make mortgage payments in accordance with a pendente lite order requiring him to do so.
Wife’s first claim on appeal was that the trial court misapplied the law in denying her motion for contempt by placing the burden on her to demonstrate that Husband’s alleged non-compliance was wilful, thus failing to shift the burden to Husband to demonstrate inability to pay as a defense to contempt. The Appellate Court applied plenary review to the question of whether the trial court applied the correct legal standard.
The trial court had reasoned that “[Wife] has not met her burden of proof that these late payments were wilful.” The Appellate Court noted that it is the burden of the party moving for contempt to prove, by clear and convincing evidence, both a clear and unambiguous order and wilful noncompliance. If the moving party establishes those two elements, the burden shifts to the alleged contemnor to provide evidence in support of an inability to pay defense.
The Appellate Court determined that the trial court had found that Wife had failed to meet part of her burden, to establish wilful non-compliance. Essentially, the burden of proof only shifts to an alleged contemnor to prove non-wilfulness if the moving party establishes a prima facie case of a wilful violation.
Wife’s second claim on appeal was that the trial court abused discretion in awarding her alimony of $250 per week for two years based on a lack of “support or logic to the court’s limitation of alimony” to two years and failing to consider the parties’ needs, sources of income and employability in making the award.
The Appellate Court reviewed this claim for abuse of discretion. It noted the statutory criteria and the common use of time-limited alimony, so long as there is sufficient evidence to support the duration established. The Appellate Court found that the trial court’s award was for a specific and permitted purpose, to allow support until a future event occurred. The Appellate Court found no abuse of discretion or failure to consider the statutory criteria.
Wife’s third claim on appeal was that the trial court improperly failed to value parties’ pensions and equalize distribution. Neither party presented testimony from an actuary with respect to the value of the pensions at trial. The trial court found that neither party had valued the pensions and it could not rely on the amount stated on Defendant’s financial affidavit as a value for hers.
The Appellate Court noted the broad discretion of the trial court to divide property and to assign property. The trial court must establish what is property under C.G.S. § 46b-81, the appropriate method of valuation, and the most equitable distribution thereof. Pension benefits are property subject to equitable distribution, but there is no set formula the trial court must follow. A pension may be divided by (1) the present value method, (2) by delaying distribution until the pension matures, or (3) by reserving jurisdiction.
The Appellate Court found that the trial court did not remove the pensions from the scales and that it did consider them in making its financial orders. By ordering that each party retain 100% of his/her own pension, it effectively used the second method of delaying distribution by assigning each party his/her own pension. The parties’ own failure to value the pensions could not be weaponized on appeal to reverse the trial court’s orders.
The lesson here is that if you do not have a professional valuation of a pension performed, you are largely at the whim of the trial court to assign it. While the pensions might (or might not) be wildly disparate in value, and it would not be unreasonable to expect the trial court to order that the marital portion of each pension be equally divided under the facts of this case, the trial court was not required to do so.
Wife’s fourth claim on appeal was that the trial court abused discretion in declining to award attorney’s fees. Wife claimed that the failure to do so undermined the rest of the financial orders. Wife indicated that she had incurred some $25k in counsel fees and owed $11k of them. Husband’s financial affidavit indicated that he owed his attorney $29k.
The Appellate Court reviewed the criteria for § 46b-62 and found no merit to Wife’s claim that failure to award her counsel fees would undermine the other financial orders.
The Judgment was affirmed.