Giordano v. Giordano

G
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      RENEE GIORDANO v. CARL V. GIORDANO
                  (AC 42737)
                        Prescott, Moll and Suarez, Js.

                                   Syllabus

The defendant, whose marriage to the plaintiff previously had been dis-
    solved, appealed to this court from the judgment of the trial court
    granting the plaintiff’s motion for contempt and awarding her appellate
    attorney’s fees. Held:
1. The trial court did not err in granting the plaintiff’s motion for contempt;
    contrary to the defendant’s argument of a good faith misunderstanding,
    the court did not err in concluding that the defendant wilfully violated
    a clear and unambiguous court order that provided that he was required
    to make weekly payments to the plaintiff until a lump sum alimony
    award was paid in full, which he failed to do, as the court credited
    evidence from the plaintiff showing that the defendant owed her an
    outstanding balance, and the court found that the defendant had the
    ability to pay and did not present credible testimony or evidence that
    he had a good faith belief that he had paid the lump sum alimony
    obligation in full.
2. The trial court did not abuse its discretion in awarding appellate attorney’s
    fees to the plaintiff; the court found that the defendant was not credible
    with respect to his purported inability to pay and that, pursuant to
    statute (§ 46b-62), the award of attorney’s fees was necessary to avoid
    undermining the judgment of contempt and the court’s orders regarding
    the defendant’s obligation to pay the outstanding balance of the lump
    sum alimony owed to the plaintiff, regardless of the plaintiff’s ability to
    pay the fees.
            Argued January 7—officially released April 6, 2021

                             Procedural History

   Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Solomon, J.;
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Margaret Murphy, J.,
granted the plaintiff’s motion for contempt, and the
defendant appealed to this court; subsequently, the
court, Margaret Murphy, J., granted the plaintiff’s
motion for appellate attorney’s fees, and the defendant
filed an amended appeal. Affirmed.
  Carl V. Giordano, self-represented, the appellant
(defendant).
   Steven R. Dembo, with whom were Caitlin E. Koz-
loski, and, on the brief, P. Jo Anne Burgh, for the appel-
lee (plaintiff).
                           Opinion

   MOLL, J. In this dissolution matter, the defendant,
Carl V. Giordano, appeals from the judgment of the trial
court granting two postjudgment motions filed by the
plaintiff, Renee Giordano. On appeal, the defendant
claims that the court improperly granted the plaintiff’s
(1) motion for contempt and (2) motion for appellate
attorney’s fees. We disagree and, accordingly, affirm
the judgment of the trial court.
   The following facts and procedural history are rele-
vant to our resolution of this appeal. The parties were
married in 1992. In 2004, the plaintiff commenced the
present dissolution action against the defendant. In
October, 2005, the trial court, Solomon, J., rendered a
judgment of dissolution, which incorporated a separa-
tion agreement executed by the parties. Under article
VI of the separation agreement, titled ‘‘Property Settle-
ment,’’ the defendant was required to pay the plaintiff
$425,000, in various installments, in exchange for
retaining his ownership interests in certain commercial
properties. In addition, article VI provided that, ‘‘[i]f the
[defendant] sells, transfers or otherwise divests himself
of any of his interest in [the commercial properties],
he shall immediately pay the [plaintiff] any funds due
her at that time so that she is paid in full.’’
  In 2009, the plaintiff filed a postjudgment amended
motion for contempt, asserting that the defendant had
sold the commercial properties in a ‘‘like-kind’’
exchange; see generally 26 U.S.C. § 1031 (2018); and,
as a result, he was obligated to make immediate pay-
ment of the sums owed to the plaintiff in accordance
with article VI of the separation agreement. The trial
court, Frazzini, J., granted the motion for contempt,
and this court affirmed the judgment of contempt on
appeal. See Giordano v. Giordano, 

127 Conn. App. 498

,
499, 

14 A.3d 1058

(2011).
  Following this court’s decision in Giordano v. Gior-

dano, supra

, 

127 Conn. App. 498

, the parties entered
into an agreement, dated May 5, 2011, for the purpose
of ‘‘settling all of the claims and demands which each
may have against the other arising from the [j]udgment
dissolving their marriage and all subsequent court mat-
ters as it relates to the property settlement.’’ The agree-
ment was entered as a court order on June 1, 2011
(June, 2011 order). Pursuant to the June, 2011 order,
the defendant was required to ‘‘satisfy his obligations
to pay to the [p]laintiff a property settlement per [a]rti-
cle IV of the [j]udgment of [d]issolution, by payments
to the [p]laintiff as outlined herein, totaling $350,000.’’
The June, 2011 order provided that $175,000 of the
$350,000 owed to the plaintiff would be paid from the
sale of the defendant’s interest in certain real estate in
East Windsor. That particular payment is not at issue
in this appeal. The June, 2011 order further provided
that the remaining $175,000 would be paid to the plain-
tiff as lump sum alimony. Such alimony was ordered
to be paid at a rate of $200 per week for one year
commencing upon the termination of the periodic ali-
mony orders in place at the time, which was expected
to occur in April, 2012, and, thereafter, at a rate of $300
per week until the sum was paid in full. The defendant
was also required to make payments toward the forego-
ing lump sum alimony obligation in the event he
received certain monies described in the June, 2011
order.
   On February 8, 2019, the plaintiff, representing her-
self, filed the postjudgment motion for contempt at
issue in this appeal.1 The plaintiff contended that the
defendant (1) owed her a balance of $62,510 in lump
sum alimony and (2) had failed to remit to her the prior
three $300 weekly payments owed under the June, 2011
order. On March 12, 2019, following an evidentiary hear-
ing at which both parties were self-represented, the
court orally granted the motion for contempt. The same
day, the court issued a written order setting forth its
decision. As relief, the court ordered the defendant to
pay the plaintiff (1) $2745 on or before March 15, 2019,
and (2) $1300 per month starting on April 1, 2019, contin-
uing until the outstanding lump sum alimony due to the
plaintiff was paid off on February 1, 2023. On March
26, 2019, the defendant filed this appeal from the judg-
ment of contempt.
   On April 3, 2019, the plaintiff, represented by counsel,
filed a motion for appellate attorney’s fees. On April
4, 2019, the defendant, representing himself, filed an
objection. On May 1, 2019, following an evidentiary
hearing, the court orally granted the motion, awarding
the plaintiff $10,000 in attorney’s fees to be paid by the
defendant at a rate of $100 per week.2 On May 9, 2019,
the defendant amended this appeal to encompass the
court’s award of attorney’s fees. Additional facts and
procedural history will be set forth as necessary.
                             I
  The defendant’s first claim is that the trial court
improperly granted the plaintiff’s postjudgment motion
for contempt. We disagree.
   ‘‘Contempt is a disobedience to the rules and orders
of a court which has power to punish for such an
offense. . . . Our review of a trial court’s judgment of
civil contempt involves a two part inquiry. [W]e first
consider the threshold question of whether the underly-
ing order constituted a court order that was sufficiently
clear and unambiguous so as to support a judgment of
contempt. . . . Second, if we conclude that the under-
lying court order was sufficiently clear and unambigu-
ous, we must then determine whether the trial court
abused its discretion in issuing, or refusing to issue, a
judgment of contempt, which includes a review of the
trial court’s determination of whether the violation was
wilful or excused by a good faith dispute or misunder-
standing. . . . Whether a party’s violation was wilful
depends on the circumstances of the particular case
and, ultimately, is a factual question committed to the
sound discretion of the trial court.’’ (Citations omitted;
internal quotation marks omitted.) Hall v. Hall, 

335
Conn. 377

, 391–92, 

238 A.3d 687

(2020). ‘‘[T]his court
will not disturb the trial court’s orders unless it has
abused its legal discretion or its findings have no reason-
able basis in fact. . . . It is within the province of the
trial court to find facts and draw proper inferences
from the evidence presented. . . . [E]very reasonable
presumption will be given in favor of the trial court’s
ruling, and [n]othing short of a conviction that the
action of the trial court is one which discloses a clear
abuse of discretion can warrant our interference.’’
(Internal quotation marks omitted.) Casiraghi v. Casi-
raghi, 

200 Conn. App. 771

, 787, 

241 A.3d 717

(2020).
   The following additional facts are relevant to our
resolution of the defendant’s claim. During the eviden-
tiary hearing on the plaintiff’s motion for contempt, the
court heard testimony from the parties. In addition, the
court admitted into evidence an accounting offered and
prepared by the plaintiff, which reflected payments
made by the defendant against the $175,000 in lump
sum alimony owed to the plaintiff under the June, 2011
order (plaintiff’s accounting). The plaintiff’s accounting
indicated that the defendant (1) made a $12,090 pay-
ment to her in 2013, and (2) made payments to her from
April, 2012, through 2018, in either $200 or $300 weekly
increments in accordance with the June, 2011 order,
but paid her only $900 in 2019, leaving an outstanding
balance of $62,510 in lump sum alimony.
   The court also admitted into evidence several exhib-
its offered by the defendant, including (1) two letters,
dated January 24, 2019, and February 5, 2019, respec-
tively, which the defendant had mailed to the plaintiff,
and (2) an accounting prepared by the defendant (defen-
dant’s accounting). In the January 24, 2019 letter, the
defendant wrote, inter alia, that he was ‘‘about 95 [per-
cent] certain’’ that he had overpaid the plaintiff by
approximately $22,190, and he asked the plaintiff to
review an attached accounting that he had prepared
that purportedly supported his calculations. He further
wrote that ‘‘[o]f course it is also possible that I am
wrong and if that is the case of course I would resume
paying you what I owe you . . . but I do not plan to
pay you if indeed I have already overpaid as I have
stated herein.’’ In the February 5, 2019 letter, the defen-
dant wrote, inter alia, that he was ‘‘98 [percent] sure’’
of the data he had provided to the plaintiff in the prior
letter, and he asked the plaintiff to respond indicating
whether she agreed with his claim. It is undisputed that
the plaintiff received, but did not reply to, the letters.
  The defendant’s accounting3 reflected various pay-
ments made by the defendant, including some that pre-
dated the June, 2011 order, which he credited against
the lump sum alimony owed to the plaintiff. According
to his calculations, the defendant either overpaid the
plaintiff by $22,190 or owed her $2810, depending on
whether a certain $25,000 payment could be credited
against the lump sum alimony award.
  In granting the plaintiff’s motion for contempt, the
court determined that (1) the June, 2011 order was clear
and unambiguous in requiring the defendant, starting
in April, 2013, to pay the plaintiff $300 per week until
the $175,000 lump sum alimony award was paid in full,
and (2) the defendant wilfully violated the order. In
addition, the court found that (1) the defendant was
not credible, (2) the defendant had the ability to pay,
and (3) the plaintiff was credible and the plaintiff’s
accounting was correct.
   The defendant does not challenge the court’s conclu-
sion that the June, 2011 order was clear and unambigu-
ous, but he claims that the court improperly determined
that his noncompliance with the June, 2011 order was
wilful. Specifically, the defendant asserts that the court
failed to consider the two letters and the defendant’s
accounting, which, he contends, demonstrated that he
had a good faith belief that he had paid the lump sum
alimony obligation in full. He further asserts that the
court ignored the undisputed fact that the plaintiff did
not reply to his letters, which, he posits, established
that a good faith disagreement existed as to whether
he had satisfied his payment obligations under the June,
2011 order. We are not persuaded.
   During the hearing on the plaintiff’s motion for con-
tempt, before granting the motion, the court stated that
it had reviewed the parties’ respective exhibits and testi-
mony. As the court expressly stated on the record and
in its written order, however, it found that the defendant
was not credible. It is reasonable to infer that the court’s
finding regarding the defendant’s lack of credibility
extended to the contents of the defendant’s letters
mailed to the plaintiff and to the defendant’s account-
ing, which were all crafted by the defendant.4 Put sim-
ply, the court did not ignore the defendant’s letters and
the defendant’s accounting; rather, the court discred-
ited them. ‘‘We will not disturb credibility determina-
tions made by the court. See Greco v. Greco, [

275 Conn.
348

, 359, 

880 A.2d 872

(2005)] (on appeal, ‘[w]e cannot
retry the facts or pass on the credibility of the witnesses’
. . .).’’ Fronsaglia v. Fronsaglia, 

202 Conn. App. 769

,
779,       A.3d     (2021); see also Talbot v. Talbot, 

148
Conn. App. 279

, 293, 

85 A.3d 40

(stating that trial court
was not required to credit new financial affidavit sub-
mitted by plaintiff), cert. denied, 

311 Conn. 954

, 

97 A.3d
984

(2014). Accordingly, we reject the defendant’s claim
that the court erred in determining that he had wilfully
violated the June, 2011 order, and, thus, we conclude
that the court did not commit error in granting the
plaintiff’s motion for contempt.
                             II
   The defendant’s next claim is that the trial court
improperly granted the plaintiff’s motion for appellate
attorney’s fees. This claim is unavailing.
   ‘‘When making an order for the payment of attorney’s
fees, the court must consider factors that are essentially
the same as those that must be considered when award-
ing alimony. . . . [General Statutes §] 46b-625 governs
the award of attorney’s fees in dissolution proceedings
and provides that the court may order either spouse
. . . to pay the reasonable attorney’s fees of the other
in accordance with their respective financial abilities
and the criteria set forth in [General Statutes §] 46b-
826. . . . This reasonableness requirement balances
the needs of the obligee spouse with the obligor
spouse’s right to be protected from excessive fee
awards. . . .
   ‘‘Courts ordinarily award counsel fees in divorce
cases so that a party . . . may not be deprived of [his
or] her rights because of lack of funds. . . . Where,
because of other orders, both parties are financially
able to pay their own counsel fees they should be per-
mitted to do so. . . . An exception to the rule . . . is
that an award of attorney’s fees is justified even where
both parties are financially able to pay their own fees
if the failure to make an award would undermine its
prior financial orders. . . . Whether to allow counsel
fees [under §§ 46b-62 and 46b-82], and if so in what
amount, calls for the exercise of judicial discretion.
. . . An abuse of discretion in granting counsel fees
will be found only if [an appellate court] determines
that the trial court could not reasonably have concluded
as it did.’’ (Citations omitted; footnotes added; internal
quotation marks omitted.) Lynch v. Lynch, 153 Conn.
App. 208, 246–47, 

100 A.3d 968

(2014), cert. denied, 

315
Conn. 923

, 

108 A.3d 1124

, cert. denied, 

577 U.S. 839

,

136 S. Ct. 68

, 

193 L. Ed. 2d 66

(2015).
  The following additional facts are relevant to our
disposition of the defendant’s claim. Both parties filed
updated financial affidavits with the court in connection
with the plaintiff’s motion for appellate attorney’s fees.
During the evidentiary hearing on the motion, the defen-
dant provided testimony regarding his financial circum-
stances and argued that he did not have the ability to
pay the plaintiff’s attorney’s fees. The plaintiff testified
that she had paid her attorney a $10,000 retainer via
credit card and that the payment of that charge would
have to come from the monies remitted to her by the
defendant under the June, 2011 order.
   In orally granting the plaintiff’s motion for appellate
attorney’s fees, the court found that (1) the defendant
was not credible regarding his purported inability to
pay the plaintiff’s attorney’s fees, (2) the defendant had
the ability to pay, and (3) awarding the plaintiff attor-
ney’s fees was ‘‘necessary to prevent undermining by
the defendant of prior court orders, which included
finding him liable for a contempt and ordering him to
pay what he owes the plaintiff.’’ In a subsequent written
articulation,7 the court further stated in relevant part
that it had ‘‘granted the plaintiff’s request for attorney’s
fees for the appeal . . . pursuant to § 46b-62 and the
relevant case law because the failure to award attor-
ney’s fees would undermine the court’s other financial
orders after finding the defendant in contempt.’’
   The defendant claims that the court improperly
granted the plaintiff’s motion for appellate attorney’s
fees for two reasons. First, he contends that his financial
affidavit and testimony during the evidentiary hearing
on the motion demonstrated that he did not have the
ability to pay the attorney’s fees award. This contention
is unavailing because the court, in finding that the defen-
dant had the ability to pay, expressly found that the
defendant was not credible with respect to his pur-
ported inability to pay. We will not second-guess the
court’s credibility determination or retry the facts on
appeal. See Fronsaglia v. 

Fronsaglia, supra

, 202 Conn.
App. 779.
   Second, the defendant contends that the record
established that the plaintiff had the ability to pay her
own attorney’s fees, which the court failed to consider,
in effect punishing the defendant for filing this appeal.
We are not persuaded. As our Supreme Court has
explained, ‘‘ample liquid funds [are] not an absolute
litmus test for an award of counsel fees. . . . [To]
award counsel fees to a spouse who had sufficient liquid
assets would be justified, if the failure to do so would
substantially undermine the other financial awards.’’
(Citation omitted; internal quotation marks omitted.)
Maguire v. Maguire, 

222 Conn. 32

, 44, 

608 A.2d 79

(1992); see also Ramin v. Ramin, 

281 Conn. 324

, 352,

915 A.2d 790

(2007) (‘‘the general rule under Maguire
is that an award of attorney’s fees in a marital dissolu-
tion case is warranted only when at least one of two
circumstances is present: (1) one party does not have
ample liquid assets to pay for attorney’s fees; or (2)
the failure to award attorney’s fees will undermine the
court’s other financial orders’’). In the present case,
the court found that awarding the plaintiff $10,000 in
appellate attorney’s fees was necessary to avoid
undermining the judgment of contempt and its atten-
dant orders regarding the defendant’s obligation to pay
the plaintiff $62,510, the outstanding balance of lump
sum alimony owed to the plaintiff. On the basis of the
record, we conclude that the foregoing finding justified
the court’s award of attorney’s fees to the plaintiff.8
  In sum, we conclude that the court did not abuse its
discretion in granting the plaintiff’s motion for appellate
attorney’s fees.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     In 2012, the plaintiff filed a postjudgment motion for contempt, asserting
that the defendant had failed to comply with a portion of the June, 2011
order that is not at issue in this appeal. The trial court, Westbrook, J., granted
the motion for contempt, and this court affirmed the judgment of contempt
on appeal. See Giordano v. Giordano, 

153 Conn. App. 343

, 344, 

101 A.3d
327

(2014).
   2
     The trial court submitted a signed transcript of its oral decision. See
Practice Book § 64-1 (a).
   3
     During the evidentiary hearing on the plaintiff’s motion for contempt,
both parties represented that the defendant’s accounting, which was admit-
ted into evidence, was not identical to the accounting that the defendant
had mailed to the plaintiff as an attachment to the January 24, 2019 letter.
The defendant’s accounting contained an entry indicating that it had been
revised on March 9, 2019.
   4
     Moreover, the court expressly credited the plaintiff’s accounting. It logi-
cally follows that the court discredited the defendant’s accounting.
   5
     General Statutes § 46b-62 provides in relevant part: ‘‘(a) In any proceeding
seeking relief under the provisions of this chapter . . . the court may order
either spouse or, if such proceeding concerns the custody, care, education,
visitation or support of a minor child, either parent to pay the reasonable
attorney’s fees of the other in accordance with their respective financial
abilities and the criteria set forth in section 46b-82. . . .’’
   6
     General Statutes § 46b-82 provides in relevant part: ‘‘(a) At the time of
entering the decree, the Superior Court may order either of the parties to
pay alimony to the other, in addition to or in lieu of an award pursuant to
section 46b-81. . . . In determining whether alimony shall be awarded, and
the duration and amount of the award, the court shall consider the evidence
presented by each party and shall consider the length of the marriage, the
causes for the annulment, dissolution of the marriage or legal separation,
the age, health, station, occupation, amount and sources of income, earning
capacity, vocational skills, education, employability, estate and needs of
each of the parties and the award, if any, which the court may make pursuant
to section 46b-81, and, in the case of a parent to whom the custody of minor
children has been awarded, the desirability and feasibility of such parent’s
securing employment. . . .’’
   7
     On May 22, 2019, the plaintiff filed a motion for articulation of the court’s
decision granting her motion for appellate attorney’s fees. On June 10, 2019,
the court granted the motion and issued an articulation.
   8
     In his objection to the plaintiff’s motion for appellate attorney’s fees,
the defendant argued that paragraph 10 of the June, 2011 order, which
provided in relevant part that ‘‘[e]ach party shall be responsible for his or
her own past, present or future counsel fees,’’ prohibited the court from
awarding the attorney’s fees requested by the plaintiff. The defendant also
raised this argument during the evidentiary hearing on the motion. In its
June 10, 2019 articulation, the court rejected this argument, concluding that
paragraph 10 of the June, 2011 order did not preclude it from granting the
plaintiff’s motion.
   As the plaintiff observes in her appellate brief, although the defendant
preserved the issue concerning paragraph 10 of the June, 2011 order in the
trial court, he did not raise this issue in his appellate brief. ‘‘[A]n appellant
who fails to brief a claim abandons it.’’ (Emphasis omitted; internal quotation
marks omitted.) Harris v. Bradley Memorial Hospital & Health Center,
Inc., 

306 Conn. 304

, 319, 

50 A.3d 841

(2012), cert. denied, 

569 U.S. 918

, 

133
S. Ct. 1809

, 

185 L. Ed. 2d 812

(2013). We are mindful that the defendant
is self-represented; however, ‘‘[t]he solicitous treatment we afford a self-
represented party does not allow us to address a claim on his behalf when
he has failed to brief that claim.’’ Traylor v. State, 

332 Conn. 789

, 807,

213 A.3d 467

(2019). Thus, notwithstanding that the defendant raised the
argument regarding paragraph 10 of the June, 2011 order before the trial
court and during oral argument before this court, we decline to address the
merits thereof as a result of his failure to brief it in his appellate brief.

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