188 Conn. App. 670
Conn. App. Ct.2019Background
- Parties divorced in 2010; separation agreement required defendant (James Kennedy) to pay unallocated alimony and child support. 2014 modification reduced the obligation to $900/week.
- Defendant filed a motion to modify (Dec. 2015) seeking termination/adjustment of the unallocated support and to replace it with guideline child support depending on custody or changed finances.
- Trial on modification and plaintiff’s fee motion occurred July–Aug. 2017. Trial court denied defendant’s request to modify the unallocated alimony/child support (Sept. 29, 2017).
- Plaintiff moved for clarification and for attorney’s fees and expenses pending appeal; defendant did not attend the Nov. 16, 2017 hearing. Trial court (1) awarded $11,250 to plaintiff’s counsel as a sanction for a “baseless motion” and (2) ordered a $10,000 advance retainer for plaintiff’s appeal fees.
- Defendant appealed. Appellate court affirmed denial of modification, reversed fee award for opposing the modification (bad-faith finding absent), and declined to review the pending-appeal fee award because the record was inadequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court had to make child support guideline findings before denying modification of unallocated alimony/child support | Court need not make guideline findings where modification was considered only on changed-circumstances ground | Guideline findings are mandatory when unallocated support is at issue | Held: No. Guidelines considered only if (a) a substantial change of circumstances is shown or (b) deviation from guidelines is pleaded; defendant did not plead deviation, so court did not err |
| Whether trial court clearly erred in finding defendant admitted no substantial change in circumstances | Plaintiff relied on court’s view of the motion and record showing no pleaded substantial-change claim | Defendant argued court mischaracterized his motion and statements | Held: Not clearly erroneous; record and defendant’s trial statements supported the court’s finding |
| Whether the defendant presented sufficient evidence of a substantial change in financial circumstances to justify modification | Plaintiff argued defendant failed to meet burden to clearly and definitely prove substantial change | Defendant pointed to increased debt, financial affidavits, tax returns, and guideline calculations | Held: Court did not abuse discretion; defendant failed to carry the burden to show a substantial change |
| Whether trial court properly awarded attorney’s fees to plaintiff for defending the modification motion (bad-faith/baseless sanction) | Plaintiff sought fees under bad-faith inherent-authority exception and separation-agreement provision | Defendant argued no bad faith and that parts of his motion had color because court granted some modifications | Held: Reversed as to this award — trial court did not make the specific bad-faith findings required for the narrow bad-faith exception; awarding fees on that basis was an abuse of discretion |
| Whether awarding $10,000 retainer for fees pending appeal was proper without findings on parties’ financial abilities | Plaintiff requested fees pending appeal; court granted motion at uncontested hearing | Defendant argued court failed to consider statutory criteria and parties’ financial abilities | Held: Appellate court declined to review due to inadequate record (defendant did not object or attend hearing; trial court made no factual findings) |
Key Cases Cited
- Gabriel v. Gabriel, 324 Conn. 324 (Conn. 2016) (standard of review in domestic relations appeals; deference to trial court)
- Weinstein v. Weinstein, 104 Conn. App. 482 (Conn. App. 2007) (§46b-86 requires showing of substantial change or guideline deviation to modify child support)
- Mullin v. Mullin, 28 Conn. App. 632 (Conn. App. 1992) (guidelines relevant only after change in circumstances shown or when deviation is urged)
- Maris v. McGrath, 269 Conn. 834 (Conn. 2004) (bad-faith exception to American Rule requires claims entirely without color and specific factual findings of bad faith)
- Berzins v. Berzins, 306 Conn. 651 (Conn. 2012) (reiterating narrow scope and high hurdle for bad-faith fee awards)
- Blum v. Blum, 109 Conn. App. 316 (Conn. App. 2008) (trial court must consider statutory criteria and parties’ financial abilities when awarding counsel fees under §46b-62)