Pishal v. Pishal, 212 Conn. App. 607 (2022) (post-judgment modification of alimony & inadequate record without basis for trial court’s decision).
Officially released May 24, 2022
In Short: (1) There was no indication that the trial court improperly considered an inapplicable civil Practice Book rule in its denial of Husband’s motion, (2) Husband failed to take necessary steps to create a record of the trial court’s basis for its decision.
The parties were divorced by separation agreement in 2006. Pursuant to the separation agreement Husband was to pay modifiable alimony of $100/week for twenty years. Alimony was to “cease upon … remarriage or cohabitation.”
In 2019 Husband filed a motion seeking termination or modification of his alimony obligation, arguing that Wife had been cohabitating for at least the past four years, that the significant other contributed to Wife’s financial needs, and that Husband was terminated from his long-time employer through no fault of his own through a major downsizing, resulting in lower income than at time of dissolution.
The trial court, Judge Gould presiding, held a hearing in 2019 with testimony and evidence from both parties. The trial court denied the motion on the record without memorandum of decision, stating that Husband had not proven a prima facie case of cohabitation or a substantial change in circumstances. Husband filed a motion for reargument which was summarily denied.
Husband claimed on appeal that (1) the trial court improperly relied on Practice Book § 15-8, which applies to civil and not family matters, in concluding that he did not establish a prima facie case, (2) even if the trial court properly relied on § 15-8, it improperly weighed the evidence and failed to consider whether he had supplied sufficient evidence for a prima facie case, (3) the trial court abused its discretion in concluding he was not entitled to termination based on cohabitation, and (4) the trial court abused its discretion in denying modification despite a substantial change in circumstances.
The Appellate Court first addressed the claim that the trial court improperly relied on Practice Book § 15-8, noting that Wife did not make a motion for dismissal under that rule of practice, that Husband’s motion was not dismissed, and that the trial court did not refer to that rule. The Appellate Court interpreted the trial court’s statement to mean that the court had evaluated the totality of the evidence and simply did not find in Husband’s favor. Husband failed to demonstrate that the trial court relied on that rule, and therefore failed to demonstrate error.
The Appellate Court then determined that all three remaining claims were unreviewable due to an inadequate record. All three claims required a review of a record that adequately sets forth the factual and legal basis of the court’s decision, including what legal standard the court applied. Practice Book § 61-10 provides that it is the appellant’s responsibility to provide an adequate record.
Husband did provide a certified transcript of the hearing, but there was no memorandum of decision setting forth the reasoning of the court, and the court did not prepare and sign a transcript of its oral ruling. Thus, where the transcript did not provide the basis for the trial court’s decision, Practice Book § 64-1(b) required Husband to file a notice with the Appellate Clerk. Husband also did not seek an articulation of the trial court’s oral decision pursuant to Practice Book § 66-5, which is required by the appellant where the trial court failed to state the basis of a decision. Because Husband failed to comply with § 64-1 and failed to seek an articulation, the Appellate Court declined to consider the merits of the remaining claims.
The Judgment was affirmed.
