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Appellate Court Says ‘Normal’ Visitation Expenses Don’t Justify Lower Support

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In a case set to be released on May 21, 2013 the Connecticut Appellate Court has overturned a lower court’s ruling that lowered the child support of a visiting father from a presumptive amount of $100 under existing guidelines to $75 as a result of the mother’s relocation within the state.

The trial court in Kavanah vs Kavanah found that Leo Kavanah’s costs in traveling back and forth between Southington, Connecticut and Monroe, Connecticut were ‘extraordinary’ within the meaning of Connecticut’s child support guidelines as they address reasons for deviation from presumptive support amounts.

The higher court held that the trial court had not sufficiently explained the basis for its conclusion that Mr. Kavanah, who had been ordered to do the driving for visitation, would be incurring extraordinary expenses — as opposed to normal expenses — as a result of his wife’s relocation.

This, alone, would not necessarily affect future cases assuming that parents seeking deviation for this reason were careful to present evidence of their visitation costs and that judges ordering deviation were careful to make specific findings about why they were reducing support.

However the Appellate Court did not stop at finding fault with the thoroughness of the lower court’s decision. In addition, they cited with approval another Superior Court decision, Weissman vs. Sissell, in which the court had observed that “[m]any non-custodial parents have some transportation costs to see their child—for parents living within driving distance of each other, for example, the non-custodial parent is likely to pay for fuel and other costs picking up or dropping off the child,
but these ordinary expenses usually do not warrant a deviation from the presumptive amount.’’

Appeals are expensive and, in the case of family law, difficult to win, so it is relatively rare to see a support case with so little at issue reach the Appellate Court.

This is not to say that the difference between $100 and $75 was insignificant to the parties in this case or to other divorcing parents. Certainly the Kavanah case has not closed the door on deviations for low-income individuals for whom in-state or other short-distance travel costs are burdensome, but it raises the bar for how the issue must be presented to the courts and makes it imperative that the court be reminded to make appropriate findings to justify why — in a particular case — transportation expenses that might be normal for some people are extraordinary in the context of the individual circumstances of the family before the court.


Alimony Order Against Unemployed Lawyer Overturned

In a decision to be released next week, Keller vs. Keller,  the Connecticut Appellate Court has overturned a hefty order of alimony and support entered by a Superior Court judge.

The Defendant husband held a law degree from Columbia University and was licensed to practice in two states.  After a brief practice, he had gone into finance and most recently had owned a hedge fund that had , at first, done very well but had later turned sour. At the time the order entered, the fund was closed. The evidence showed that  Attorney Keller had no income and the family was living on borrowed money and the last of their liquid assets.

In Connecticut and elsewhere, judges may make orders of alimony and support based on a finding that the payor has earning capacity even if he or she is unemployed or underemployed.  Tn the Keller case, the judge did just that, finding that Attorney Keller had a gross earning capacity of $25,000 per month.  Based on that finding, the court ordered him to pay combined alimony and support of $9,000 per month during the pendency of the case.

The Appellate Court overturned the order, not because the lower court did not have discretion to consider earning capacity but because the court failed make a finding as to Attorney Keller’s net earning capacity.   Under Connecticut law, orders of alimony and support must be based on net income whether that income is real or merely imputed.

The lesson for litigants hoping to obtain orders against their unemployed or underemployed spouse is to present evidence specifically on the subject of what they believe their spouse could earn after taxes.


Connecticut Appellate Court Underscores Limits on Making Alimony and Child Support Non-Modifiable

In a decision released this week, the Connecticut Appellate court once more addressed the issue of whether and to what extent a divorcing couple can agree to make child support and alimony  non-modifiable.  It has long been clear that absent clear and unambiguous written language to the contrary, both alimony and child support may be changed by the court as the circumstances of the parties change.  This language is normally found in the terms of a written separation agreement, i.e., a contract, between the parties which is adopted by the court at the time of the dissolution and made a court order.

Historically, it has been easier to put a lock on an alimony award than on a child support award for reasons of public policy. The courts have always ruled that only under certain very limited circumstances may the parties to a divorce limit the rights of their children to receive support from their parents.

This week’s decision in Malpeso vs Malpeso involved a situation where the husband was to pay $20,000 per month to the wife as” alimony, or separate support for the  minor children” .  The ambiguity of that language alone, stated in the disjunctive, made the agreement unusual.  The agreement went on to provide that this sum, which it now referred to as simply “alimony” would not be modifiable for 8 years.  An exception the parties had agreed on  as part of the contract was a calamitous circumstance affecting the economy of New York and similar to the events of September 11, 2001.  Clearly such an event had not occurred.  Still, the husband argued that his circumstances had changed.

In response to her former husband’s motion to modify the order before the 8 years had expired, the wife objected citing the language of the agreement and the trial court agreed.  The appellate court reversed saying the agreement was ambiguous as to whether by “alimony” the parties meant to refer to the order that the agreement had earlier characterized to include child support.  Based on that ambiguity, the court held that the longstanding presumption favoring the modifiability of child support prevailed.

In an earlier post, we discussed another recent case in which the parties had agreed, at the time of the divorce, on an ending date for alimony.  In that case, the court held that selecting a termination date alone did not make alimony non-modifiable as to term.  Both of these cases underscore the need for careful drafting of agreements regarding both alimony and child support.  In the event of any ambiguity at all, the courts do not look to the original intent of the parties, but instead to the  policies that favor modification.


WHO PAYS THE PRICE WHEN EX-SPOUSES CAN’T — OR WON’T — CO-PARENT THEIR CHILDREN?

We see it all the time — divorced or divorcing parents who see every compromise on issues of visitation or custody as a loss and who return to the courts time and again to settle everyday disputes.

In a case to be released next week, Lori Hibbard vs. Tony Hibbard,  the Connecticut Appellate Court upheld the decision of a trial court to pick a side in such a case, and to do so in a big way.

The couple divorced in 2007 returning in less than a year with disputes about money and visitation.  In the next 4 years, the parties filed a total of 30 post-judgment motions between them.  According to the appeals court, the disputes increasingly involved access to their daughter –only two years old at the time of the divorce.

Initially, it appears from the decision that the plaintiff mother had a fair amount of success managing to limit the defendant father’s access more and more.  At various points, this even involved requiring that visits be supervised and that overnight visits be suspended.

By the time they returned to court to litigate their last set of four motions — two filed by each party– visitation by the father had been whittled to one weekday afternoon and two 7-hour weekend visits every other week together with some specified holidays and birthdays.

The mother’s two motions sought further restrictions on the father’s access, the father, for his part, asked that the mother be held in contempt of court for failing to allow him several scheduled visits and –more importantly –asked that custody of their child be granted to him.

The mother defended against the contempt motion claiming that although she had not allowed the visits it was because her daughter had reported being touched inappropriately by a friend of the father during an earlier visit.

The trial court did not find the mother’s  claim to be credible noting in a detailed 20-page decision that, in the past, the mother had made various other unrelated claims that had not been substantiated by investigators or by the child’s therapist.  She had argued that the child was afraid of her father, but again was not backed up the child’s therapist.  The judge further noted that the mother had terminated therapy for the child when the therapist asked to meet with the father and had terminated longstanding daycare arrangements after a worker shared information about the child with the father’s current wife.

Concluding that the mother’s strategy was to eliminate the father from their child’s life, the judge awarded sole custody to the father, granting the mother visitation rights.  Considering that she had originally been awarded custody and had historically succeeded, at least  to some extent, in controlling the father’s access, it is a fair guess that this was an unexpectd result.

The mother appealed  and lost.

In this blog, we have commented before about  the toll  that contentious and protracted custody and visitation litigation takes on families, and especially on children.  The adverse effects of serious and prolonged  parental wrangling on children — not just while it is happening but well into adulthood — has been amply documented.

For most families, the financial toll taken by the cost of serial court appearances makes a difference in the quality of life of the entire family and colors the attitudes of the adults towards each other.  This, in turn, makes it even less likely that the children who are at least the official subject of the fighting, can enjoy a carefree, guilt-free and happy childhood.

We do not claim to be in position to judge  or evaluate the merits of Ms. Hibbard’s attacks on Mr. Hibbard’s parenting.  What we can say, however, from many years of experience, is that once custody and visitation issues have been  addressed and decided  — whether  by  agreement  or  by trial — future efforts to change the deal become subject to increasing skepticism. As lawyers, we must always respect the obligation of parent’s to do what they believe to be in the best interest of their children. At the same time, however, we must always counsel our clients — as the experienced lawyers in this case no doubt did — to consider at every step, whether they are motivated by genuine concern for their children or by relationship issues between the adults.  At a minimum, they should be made aware that this will be a question that the court will consider in every instance.


NEW CONNECTICUT APPELLATE COURT FAMILY CASE ILLUSTRATES PERILS OF DIY APPEAL

After more than 20 years of marriage that ended in divorce in 2003, Connecticut resident Peter Larson seems to have been no stranger to the courts.  When he returned to court in 2010 to seek a reduction of child support and alimony orders, he had two previous efforts at modification under his belt and  probably felt confident that he would win his pro se bid for relief.  After all, his income had gone from about $85,000 in 2003  to about $21,000 and he was unemployed.

And, in fact, he did come away with some degree of success without the help of a lawyer. The trial court recalculated his child support dropping it from its original level of $347 per week to $115 per week. In addition the court reduced his alimony order to $1 per year — not a permanent victory on the alimony front, but still an important win.

Unfortunately, Mr.Larson’s former wife, Matilde, did hire a lawyer who filed a  counter-motion for contempt seeking past due child support and attorney’s fees.  Ultimately, although he received a break in his current orders, Mr. Larson was also ordered to pay almost $100,000 in past-due support and was also ordered to pay almost $27,000 in attorney’s fees.

In a per curiam decision of the Connecticut Appellate Court scheduled for release next week, the Court upheld the trial court’s action.

As he had at the trial court level, Mr. Larson represented himself on appeal. His arguments of error were;

  • The trial court hadn’t reduced child support enough
  • The trial court should not have found him in contempt of prior orders
  • The order of attorneys fees was excessive because the fees were unreasonable

The Court’s response to these claims makes it clear that Mr. Larson would have benefitted from consulting with a lawyer before filing his motion and, later, before filing his appeal.  First, the court stressed the enormous discretion accorded to trial courts by appeals courts in family matters.  It is never enough on appeal that the appellate judges might have decided the case differently.  This means that strategic errors at the trail level can rarely be corrected on appeal.

Second,  Mr Larson would have been cautioned that, because he was not fully in compliance with existing orders,  he should have expected a counter-offense if he chose to seek a modification.  Based on the amount of the arrearage that the court found, it is clear that his former wife had tolerated his non-compliance for a very long time up to the point that he made the first move in 2010.    To the extent that Mr. Larson thought his current financial situation would — or even could — protect him from being held in contempt for falling behind, he was  mistaken and any experienced lawyer would have made that clear to him.

Third, he would have been advised that law that requires courts to consider the respective finances of the parties when allocating responsibility for attorneys fees in divorce cases, does not apply in enforcement proceedings where there has been a finding of willful contempt.  In such cases, attorney’s fees can be shifted to the party who failed to obey a court order as a simple matter of punishment.

While Larson complained that he had not been given a fair chance to challenge the reasonableness of the fees, the appellate court noted that, not only had the trial court afforded him the opportunity to do that, but  had actually scheduled a separate hearing for that very purpose.  Although Larson attended the hearing he did not, according to the court, present any evidence on the subject.  It is not unusual for inexperienced litigants to expect the trial judge to take the lead in a factual inquiry.

In a 201o op-ed piece published in the New York Times entitled “A Nation of Do-It-Yourself Lawyers”  John T Broadrick, chief justice of New Hampshire, and Ronald M. George, chief justice of California, stressed the disadvantages faced by litigants who, for financial reasons, feel compelled to go it alone.  The authors urged members of the bar to step up to help mitigate the problem by offering so-called unbundled legal services so that litigants who could not afford comprehensive representation could nonetheless receive limited assistance in the form of consultation, coaching, and help with document preparation.

What many do not understand is that limited representation can be a minefield for lawyers since the rules in many states do not adequately protect them.  We cannot reasonably expect lawyers who would otherwise be willing to play a supporting role in a lawsuit, to risk taking responsibility for the final outcome of litigation they do not fully control or to be required to provide additional or even comprehensive services without remuneration.

Still, in every community there are lawyers who recognize the problem and who are willing to address it as long as roles are clearly defined and the expectations are clear.  When the stakes are high, it makes sense to seek them out.


NEW REPORT SAYS 79% OF SEPARATIONS END IN DIVORCE — CAN POST-MARITAL AGREEMENTS EASE THE PAIN?

According to a recent article published in USA Today,  a study of over 7000 individuals conducted by researchers at the Ohio State University found that 79% of marital separations end in divorce.

The study found that the average length of separations that resulted in reconciliation was two years, while the average of those ending in divorce was three years. Surprisingly, the chances of reconciliation virtually disappeared among this group beyond the three-year mark.   While many couples who  lived apart for three or more years eventually divorced, others simply continued the separation indefinitely.

The study found that women with children under 5 years old were more likely to separate from their husbands rather than to divorce immediately.

All of this means that a great number of couples either delay or forego altogether the protection of laws designed to shield them financially in the event their marriage comes apart.  These include laws governing the division of marital assets  as well as laws regarding spousal and child support.

In  a relatively new trend, some couples seriously contemplating trial separation begin the experiment by  negotiating  a formal  post-marital agreement that sets out their respective financial obligations while still legally married  and also in the event of an eventual divorce.   In this way, they are able to enter into a trial separation — or in some cases even continue living under the same roof — with the security of an agreed-upon set of rules.  This provides each of them with a degree of certainty about their financial future that would not otherwise  be possible absent divorce litigation.  With financial issues resolved, they are better able to understand the choices they face and to focus on other issues in their relationship.

Just like prenuptial agreements, post-marital agreements must meet certain standards in order to be enforceable.  These standards are governed by the laws of individual states, but certain features are universal.  First, they must be accompanied by full mutual disclosure of financial information.  Second, they must be entered into voluntarily and both parties must have had at least  the opportunity to have the agreement reviewed by independent counsel.   All courts reserve the right to review  both prenuptial agreements and post-marital agreements for fairness, but, provided there are no egregious flaws in the contract, courts generally support and enforce them as a matter of public policy.

Impending separation is not the only reason to consider a post-marital agreement.  Events such as the birth of a child, a return to school,  or the launch of a business can be good reason for couples to consider adding a post-marital agreement to their financial plan.


ALMOST DONE WITH ALIMONY? NOT SO FAST

In an opinion scheduled to be officially released on May 29th, 2012,  the Connecticut Appellate Court  has confirmed  the notion that even  time-limited  alimony can be extended unless the decree of dissolution  specifically says it can’t.

In 2001, Faith Whitehead was awarded alimony in the amount of $1500 per month that was to terminate the earlier of her remarriage, cohabitation, death, or her 60th birthday.  In 2010 when she was about to turn 60, Ms Pite went back to court asking for an extension of the term beyond her 60th birthday.   The reason?  Her her interest in her ex-husband’s retirement — something awarded to her in original decree– had shrunk with the economy.  This meant that her income from that source would no longer be what she originally hoped it would be.

While the trial court did reduce the amount she would receive each month,  it nevertheless extended the term alimony indefinitely.  The court  said it did this in order to effectuate the original intent of the judgement.  Otherwise, according to the court, Ms Pite would need to invade her assets in order to maintain her lifestyle, while her husband would not.  The court noted, also, that Ms. Pite had not obtained full-time employment which was also part of the original plan.

At the same time Ms. Pite moved to extend her alimony, Mr. Pite sought to terminate his child support on the grounds  he had been paying  $46,000 in annual tuition for his child at a private boarding school in addition to paying $26,000 in court-ordered child support directly to Ms. Pite.  The court did grant a small reduction in periodic child support but refused to terminate the order saying that the decision to send the child to boarding school had been voluntary and in the nature of a gift.

While the trial court did reduce the child support order, the reduction fell far short of offsetting the extra $46,000 Mr. Pite was reportedly paying in tuition.

As it so often does, the Appellate Court cited the very broad discretion enjoyed by trial judges in family matters and, by contrast, the limited scope of review afforded to the appellate court. On appeal, it is never enough that one or more of the appellate judges would have decided a case differently.  Instead, in order to alter the results, the reviewing court must find either that the lower court did not correctly apply the law or that the court could not reasonably have concluded as it did.

The take-away lesson –especially for the vast majority of  individuals who settle their cases short of trial — is this:  It is not enough to say when alimony will end.  Instead, your agreement, which will eventually become part of a court order, must also state in clear and unambiguous language that the term of alimony is to be non-modifiable.  Otherwise it may someday be up to an individual judge to decide what  you really meant when you scheduled a date for the final alimony check to change hands.

As always, we welcome your comments.