Category: Post Judgement

What is a Discovery Special Master (DSM)?

This Week’s Blog by Carole T. Orland

  • The Court may appoint a DSM in your divorce case to resolve discovery disputes.
  • Discovery may include production of documents, written responses to questions, and/or Deposition testimony.
  • Utilizing a DSM often saves the parties time and money, as opposed to having the Court decide discovery disputes.
  • Typically the DSM is paid from marital funds during the divorce litigation.
  • The Court retains ultimate authority with regard to discovery disputes.

In certain cases where there are disputes involving discovery, the parties may agree or the Court may appoint a Discovery Special Master. Discovery in divorce cases typically includes the production of certain documents, responses to written questions and/or testimony at a Deposition. Discovery in Connecticut is very liberal. Essentially, if the information sought is “reasonably calculated to lead to the discovery of admissible evidence,” it must be produced unless there is some prevailing privilege, such as that between attorney and client, to the contrary. Connecticut Practice Book Sec. 13-2. However, it is not uncommon in divorce cases to have a disagreement as to what must be produced. If the parties cannot agree they can bring the issue before the Court through Motion practice. The Court has the option of deciding the dispute or referring the matter to a DSM. With their busy dockets and frequent understaffing, Courts generally are not inclined to spend hours sorting out discovery disputes, some of which may be granular in nature. It is, therefore, more practical for the Court to assign the discovery issues to a DSM.

Who Serves as a DSM?

Any lawyer can serve as a DSM. The parties can agree on whom that person should be or in the absence of an agreement, the Court can choose the DSM.

What Protocol Does the DSM Use for Addressing Discovery Disputes?

The Court may establish a general protocol in its Order. Each DSM may handle a case differently, but generally the DSM will ask counsel to provide to him or her the discovery requests in issue along with a memorandum in support or opposition of production, along with certain documentation relevant to discovery. If there is an issue of law, the DSM may ask for legal support in the form of a memorandum or brief. Next, the DSM may either decide the dispute on the papers or confer telephonically or at an in-person conference with counsel and sometimes the parties.

Is the DSM’s Decision Binding?

The Court retains ultimate authority to determine discovery disputes.

Who Pays for the DSM?

The parties are responsible for paying the DSM. Typically, the DSM’s fees are paid out of martial funds during the litigation.

What is the Advantage of Having a DSM?

An experienced DSM can usually give more timely attention and move through the issues quicker than the Court can do, thereby saving the parties attorney’s fees and money in the long run, and preventing delays due to discovery disputes.

What Other Matters Might a DSM Address?

The DSM can address matters of Deposition scheduling for parties, witnesses and experts as well as substantive issues related to these Depositions.

At Broder & Orland LLC, with offices in Greenwich and Westport, we have significant experience working with Discovery Special Masters in our divorce cases throughout Connecticut. We are adept at streamlining the discovery process to the extent possible in order to get the information we need and in producing required information to your spouse, in a timely and cost effective manner.  We recognize that the DSM can be an excellent resource in that regard.

Reopening Divorce Judgments on the Basis of Fraud

This Week’s Blog by Andrew M. Eliot

  • A divorce judgment may be “reopened” on the basis of fraud, and potentially set aside, if it is discovered after the judgment was issued that a party made intentional material misrepresentations to the Court.
  • Proof of fraud alone is insufficient to have a judgment reopened; a party seeking to reopen a judgment must also prove that the outcome of a new trial, untainted by the fraud, would likely be different.

As experienced family law and divorce attorneys with offices in Greenwich and Westport, Connecticut, we frequently represent clients who are concerned that their spouse is concealing or secreting assets or income. While such suspicions often turn out to be unfounded or imagined, there are indeed cases where such concealment is discovered during the divorce process (typically during the course of financial discovery), and can therefore can be addressed prior to judgment (whether such judgment is in the form of a judicial decision issued after a trial, or a negotiated agreement).  But what if the concealment of assets or income is not discovered until after a divorce judgment has been rendered? While such a post-judgment discovery of fraud presents a far trickier problem to resolve, it is a problem that can, in certain limited circumstances, be remedied.

If a party can prove in Court that a judgment was in fact based upon fraud or intentional material misrepresentations, Connecticut Courts do have the discretion to reopen such a judgment and set it aside.  That said, the legal threshold that must be met in order for a Court to reopen a judgment is quite high.  Specifically, Connecticut’s Supreme Court has established the following minimum criteria which must be met by a moving party before any motion to reopen a judgment may be granted: (1) there must be clear proof of perjury or fraud; (2) there must have been no unreasonable delay by the injured party after the fraud was discovered; and (3) there must be a substantial likelihood that the result of a new trial would be different.  See Billington v. Billington, 220 Conn. 212 (1991).

Collectively, these criteria present a high hurdle to overcome.  The mere suspicion of fraud, even if the reasonably based, is insufficient for a Court to reopen a judgment.  Rather, there must be clear proof of the fraud and, perhaps even more notably, the fraud must rise to a level sufficient enough for the moving party to prove that the outcome of a new trial — one untainted by the fraud — would likely be different.

Accordingly, even in instances where a genuine post-judgment fraud has been discovered, an aggrieved party should give careful consideration to his or her likelihood of success prior to investing resources in post-judgment litigation.

At Broder & Orland LLC, we have extensive experience handling all aspects of complex post-judgment issues, including both prosecuting and defending motions to reopen judgments on the basis of fraud.

The Connecticut Divorce: What is Family Relations?

This Week’s Blog by Christopher J. DeMattie

  • Family Relations offers a wide variety of services to help resolve parenting, custody, and financial disputes in divorce and post-judgment actions.
  • Depending on the service recommended, you can expect to meet with a Family Relations Counselor for an hour or for an extended period of time over the course of many months.

What is Family Relations Relative to a Connecticut Divorce?

Family Relations or family services is a free service offered by the Judicial Branch to assist the Court and individuals in resolving parenting, custodial, alimony, child support, and property issues.  The Family Relations Counselor assigned to your matter is typically a trained social worker or attorney.

What Services Does Family Relations Offer in a Connecticut Divorce?

Pursuant to Court Form JD-FM211 below is a list and brief explanation of the specific services:

  1. What type of alternative dispute resolution services?
  • Pre-trial Settlement Negotiations – In all Judicial Districts, Family Relations Counselors conduct pre-trial and final judgment settlement conferences with attorneys and parents in conjunction with their attendance at Family Short Calendar and other Family Civil Court dockets.
  • Mediation – Family Relations Counselors mediate custody and access disputes for up to three 2-hour sessions. These efforts are geared toward assisting parents in resolving differences in a self-determining, non-coercive, and confidential manner.
  • Conflict Resolution Conference – This is a confidential, directive process utilizing negotiation and mediation techniques to resolve the primary issues of custody and access. Parents and attorneys participate in the conferences and information from professional sources may be included. The Family Relations Counselor may offer recommendations to the parents at the conclusion of the process if the parties are unable to resolve their dispute. These recommendations are not provided to the Court.
  1. What type of Case Management Services?
  • General Case Management – A Family Relations Counselor will be assigned distinct responsibilities to assist parties in resolving their parenting issues with a report back to the Court. Some components include gathering specific information regarding the family, monitoring compliance with court orders, facilitating settlement conferences to develop parenting plans, conducting home visits, or completing other court-ordered tasks.
  • Intensive Case Management – This service offers parents in the early stages of post judgment court involvement the opportunity to enhance collaboration between the parents and formulate mutual decisions regarding the well-being/care of their children. The role of the Family Relations Counselor is to work with the parents as needed to reduce conflict, offer skills for enhanced communication, reinforce positive parenting, and report progress to the Court.
  1. What type of evaluative services?
  • Issue-Focused Evaluation – This is a non-confidential process of assessing a limited issue impacting a family and/or parenting plan. The goal of an Issue-Focused Evaluation is to explore the defined parenting dispute, gather information regarding only this issue and provide a recommendation to the parents and the Court. This evaluation format is limited in scope, involvement, and duration.
  • Comprehensive Evaluation – This is an in-depth, non-confidential assessment of the family system by the Family Relations Counselor. The information gathered by the counselor, the assessment of the family, and the resulting recommended parenting plan is shared with the parents and attorneys. This recommendation may be used to form the basis of an agreement. At the conclusion of the process, a report with recommendations is filed with the Court.
  1. What type of education services?
  • Parent Education Program (PEP) – Family Services contracts with community and private agencies throughout the state to provide this program. The PEP is a six-hour statutorily mandated, psycho-educational course for separating and divorcing parents that provides information about the impact of family restructuring on children.

What Can I Expect at my Family Relations Meeting in a Connecticut Divorce?

Typically, there are two ways to end up in Family Relations.  First, prior to having an evidentiary hearing on a Motion, you and/or your lawyer must first meet with Family Relations to try and settle the issues.  Your lawyer will present an argument and provide basic backup documents, if requested, and the Family Relations Counselor will try and mediate a resolution and/or provide recommendations.  This meeting could feel rushed as it typically lasts only between 20 and 40 minutes.

Second, if you and your spouse have disputes relative to custody or parenting time, your matter will most likely be referred to Family Relations for an intake screen.   At the intake the Family Relations Counselor will ask you a series of questions to identify the level of conflict and complexity of issues. The screening includes questions about: (a) current court orders, (b) past and present parenting concerns including substance abuse and family violence, and (c) the level of conflict.  This screen helps Family Relations determine if mediation, conflict resolution conference, issue focused evaluation, or a comprehensive evaluation is the appropriate service to help resolve the conflict(s).  Once the appropriate service is determined, an appointment will be scheduled (it may be a joint meeting or an individual meeting) and you will be asked to discuss your concerns about the children and answer concerns that the other parent may raise.  Depending on the service, you may be asked to sign release and/or consent forms to permit the Family Relations Counselor to communicate with doctors, therapists, teachers, and other relevant individuals.  Additionally, the Family Relations Counselor may conduct a visit with you and your children at your home.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce.  We have significant experience with Family Relations and understand the nuances of the process.  Our experience enables us to effectively guide our clients through the process by educating them on what to expect and to prepare them in presenting their concerns and issues in an organized and cogent fashion.

The Evolution of Cohabitation

This Week’s Blog by Jaime S. Dursht

Although the term “cohabitation” is not statutorily defined or even mentioned in the statute itself, it is a well-known concept in Connecticut Family Law referring to grounds to have alimony payments reduced, suspended or terminated following divorce.

  • Connecticut General Statutes § 46b-86(b) authorizes the court to reduce, suspend or terminate alimony payments based on proof that 1) the alimony recipient is living with another person; and that 2) the living arrangement has caused an alteration of the alimony recipient’s financial needs.
  • “Living with another person” does not necessarily mean residing together under the same roof—it can still be found where the alimony recipient and significant other have separate residences.
  • The “alteration” of financial needs must be quantified, however, the amount does not have to be significant, and according to recent case law, can also be shown by cost savings that result from the living arrangement.
  • The evidentiary burden of proof for modification is lower for cohabitation claims requiring only a “change in circumstances” rather than the “substantial change in circumstances” that is required based on other grounds for modification under General Statutes § 46b-86(a).

The Rationale Behind the Statute

The statute was enacted “to correct the injustice of making a party pay alimony when his or her ex-spouse is living with a person of the opposite sex, without marrying, to prevent the loss of support.”  (H.B. No. 6174, 1977 Sess. Statement of Purpose).  The statute was clearly meant to address the situation of alimony recipients taking steps to avoid the loss of spousal support.  Consistent with this principle, in cases where the initial component of living together is disputed, Connecticut courts will look beyond whether the alimony recipient and significant other maintain separate residences and consider facts that support whether the relationship is marriage-like.

“Living With Another Person”

In many cohabitation cases, there is a concession of living together, and the focus shifts to whether the living arrangement so affects the financial circumstances of the alimony recipient as to justify a modification of alimony.  However, in cases where living together is challenged, the fact that separate residences are maintained will not necessarily stave off a finding of cohabitation.  For example, in Boreen v. Boreen, Superior Court, Judicial District of Stamford, Docket No. FA084015215S (October 31, 2017; Shay, J.), cohabitation was found where a couple resided together under the same roof 50% of the time, ate many of their meals together and frequently traveled together even though both maintained separate housing. The court noted that “the statute does not specify that the parties must live together under the same roof twenty-four hours a day, seven days a week for the court to make a finding that they are living with another person.”  The court found cohabitation based on the couple’s long-time, committed and monogamous relationship that came with a financial benefit for the alimony recipient.

Financial Benefit

The statute requires not only a finding of living with another, but that the living arrangement alters the financial needs of the alimony recipient.  This must be shown in dollar amounts, but does not have to be significant in order to be sufficient.  For example, courts have deemed the evidence sufficient where a party was receiving $100 a week from a cohabitant, D’Ascanio v. D’Ascanio, 237 Conn. 481 (1996); where a party received $400 a month for rent from a cohabitant, Duhl v. Duhl, 7 Conn.App. 92 (1986); and where a party received $30 a week from a cohabitant who also performed handyman chores, Lupien v. Lupien, 192 Conn. 443 (1984).  Recently, the Connecticut Appellate Court reversed a trial court for not considering a party’s savings in rent that resulted from the alimony recipient moving in with her boyfriend.  Murphy v. Murphy, 181 Conn.App. 716 (2018).

Change in Circumstances

Once it is shown that an alimony recipient is living with another person within the meaning of the statute, and that there is a measurable financial benefit to the alimony recipient, the threshold change in circumstances is met and the court then engages in the analysis of consideration of the General Statutes § 46b-82 factors.  The required change in circumstances is lower pursuant to General Statutes § 46b-86(b) than the “substantial” change in circumstances required pursuant to General Statutes § 46b-86(a).

In 2013, General Statutes § 46b-86(b) was amended to include the language, “In the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith.”  This means that parties may negotiate and agree to their own terms of what constitutes cohabitation and the court will enforce their agreement.  Therefore, carefully considered drafting of the Separation Agreement is critical, and knowledge of the foregoing essential if cohabitation is a future possibility for either party.

With offices in Westport and Greenwich, the attorneys at Broder & Orland LLC are extremely knowledgeable in the issues that arise following divorce such as alimony modification based on cohabitation, as well as how to avoid potential issues by careful and comprehensive drafting of Separation Agreements.

What is Parental Alienation?

This Week’s Blog by Jaime S. Dursht

“Parental alienation is the process, and the result, of psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members. It is a distinctive form of psychological abuse towards both the child and the rejected family members that occurs almost exclusively in association with family separation or divorce, particularly where legal action is involved.”  Lorandos, Bernet and Sauber, Parental Alienation: The Handbook for Mental Health and Legal Professionals (Charles C. Thomas, Ed. 2013).

  • In Family Law, parental alienation is a term used to describe the dynamic of a child’s unreasonable rejection of one parent with the encouragement/tacit approval of the other parent.
  • The issue of parental alienation arises in high conflict custody cases both pre- and post-divorce when one party seeks sole legal and/or physical custody of the child(ren).
  • Connecticut Family Courts consider evidence of parental alienation in the context of making or modifying custody orders in accordance with what is in the best interests of the child pursuant to C.G.S. § 46b-56.
  • Courts may order the involvement of mental health professionals and custody evaluation experts to investigate allegations of parental alienation and make recommendations of intervention if necessary.

Generally, parental alienation is the psychological manipulation of a child by one parent to unjustifiably reject the other parent, and although it is not regulated as a punishable offense in the United States, it is considered a crime of child abuse in other countries carrying criminal penalties. In Connecticut, allegations can, and often do, arise in cases of contested custody, and there is a wide body of case law identifying the characteristics and conduct of an alienated child as well as that of an alienating parent.   For example, children who suddenly refuse to see a parent or declare hatred of a parent based on minor or unfounded complaints may be a signal of alienation.  A parent who falsely alleges physical or sexual abuse, exaggerates allegations of substance abuse or other inappropriate conduct, interferes with the other parent’s access to school records and information, restricts the other parent’s parenting time, or involves the children with details of litigation—these may be considered efforts to deliberately undermine the relationship between the child and the other parent, and the consequences can be severe. In some cases the court may order specific interventions to remedy the situation, such as therapeutic treatment for child and/or parent, or reunification therapy, or in extreme cases, the court may order a complete reversal of custody.

The statutory factor under which the court will consider evidence is C.G.S. § 46b-56(c)(6): “[T]he willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders.”  See e.g., Hibbard v. Hibbard, 139 Conn. App. 10, 55 A.3d 301 (2012) (“Because the child has lived with the plaintiff since birth, the court does not take lightly the prospect of changing her primary residence at this point.  Nevertheless, the court determined that such a modification to the custody order was in the best interests of the child because the plaintiff demonstrates a real deficiency in her willingness and ability to facilitate and encourage such continuing parent-child relationship between the child and the other parent. … The court referenced the plaintiff’s strategy of pursuing the elimination of the defendant from their daughter’s life and concluded that the result of leaving the child with the plaintiff would be the eventual loss to the child of her father.”)

Connecticut does not recognize parental alienation as a diagnosable syndrome as it was initially proposed in the 1980’s (officially discredited as a mental disorder by the American Psychiatric Association in 2012). “There is insufficient evidence that the description offered of parental alienation syndrome has any scientific basis.  There is no credible evidence that this syndrome has been the subject of any scientific studies published with approval in peer-reviewed scientific literature.” Snyder v. Cedar, Superior Court, Judicial District of New Haven, NNH CV010454296, February 16, 2006 (Pittman, J.).  However, courts have made factual findings that a parent has engaged in parental alienation. See Ruggiero v. Ruggiero, 76 Conn. App. 338, 349, 819 A.2d 864 (2003) (“Following the presentation of evidence, the court stated:  [I]t’s my finding that [the plaintiff] has been guilty of parental of alienation in two ways:  One of them is that he attempted to alienate the children from [the defendant] …”). Courts also note, however, that a claim of parental alienation may be an effort by one parent to gain tactical legal advantage over another parent. Mastrangelo v Mastrangelo, Superior Court, Judicial District of New Haven, No. FA054012782S, February 1, 2017 (Kenefick, J.)  (“This was not a case of severe parental alienation orchestrated by the mother. The father had a significant role in creating the problems he had with his children … his continued attempt to expose [the plaintiff] for being an alienating mother is not going to endear his children to him. … [he] was a on a mission to punish [the plaintiff] to the detriment of seeing his children.”).

All child custody cases are complex. It is imperative for the professionals involved in every case to be knowledgeable and experienced in the particular dynamic at issue. Broder & Orland LLC, with offices in Greenwich and Westport, are experienced in custody cases involving parental alienation.

Post Judgement – Motions for Contempt

During your divorce proceeding, you and your attorney will work diligently to ensure that your final Separation Agreement is as detailed as possible. But what happens when after the agreement is signed and your divorce is finalized, your spouse decides to disregard your carefully crafted Separation Agreement? Perhaps your spouse failed to pay you the correct amount of alimony or child support, or perhaps he or she failed to abide by the parenting plan that you tirelessly negotiated. This is the time to consider filing a Post Judgment Motion for Contempt.

During your divorce proceeding you may have heard the phrase “Pendente Lite,” meaning during the litigation. All motions filed before the date of divorce are considered Pendente Lite motions as they are filed before a final judgment is entered into. Any litigation that occurs after the date a final judgment is entered into is referred to as “Post Judgment”.

Once your separation agreement is signed, it can feel devastating and overwhelming to be confronted by a spouse who chooses not to abide by the agreement that the two of you entered into. Fortunately, the Connecticut Courts are well equipped to handle such matters and the attorneys at Broder & Orland, LLC are well versed in all areas of Post Judgment litigation.

A Motion for Contempt, whether filed Pendente Lite or Post Judgment, requires a specific burden of proof to be met by the moving party. In order for the judge to make a finding of contempt you will need to show by clear and convincing evidence, the following: that there is a clear and unambiguous court order, that the order has been violated, that the party who violated the order acted willfully, and finally, you must clearly explain the relief you are seeking from the court.

If for instance, your Separation Agreement states that your spouse is obligated to pay you a set amount of money as Unallocated Alimony and Child Support on the first and fifteenth of each month, but your spouse begins paying you an incorrect amount one time per month, say on the twentieth, you may consider filing a Motion for Contempt re: Unallocated Alimony and Child Support, Post Judgment. The first prong of your burden of proof will be met by your Separation Agreement so long as the agreement is a court order and clearly and unambiguously outlines your spouse’s obligation. To meet the remaining prongs, that your spouse violated the order and acted willfully in doing so, you will want to make sure that you have kept diligent records. At a Hearing, you will want to present the judge will as much information as possible regarding the payments you have or have not received from your spouse and any information regarding your spouse’s willful conduct. You will need to show that your spouse acted deliberately and intentionally when they failed to pay you.

Some other common issues that Post Judgment Motions for Contempt address are failure to properly divide marital assets, failure to abide by parenting plans, and failure to cover or pay for mutually agreed upon children’s expenses.  No matter what issue arises after a final judgment is entered into in your action for dissolution, the attorneys at Broder & Orland, LLC can provide the necessary support and knowledge to remedy the situation.