224 Conn.App. 19
Conn. App. Ct.2024Background
- The parties' marriage was dissolved in 2010, with two minor children, incorporating a separation agreement requiring unallocated alimony and child support from Kennedy (defendant) to De Almeida-Kennedy (plaintiff).
- The 2014 modification reduced Kennedy's unallocated support payment and removed certain restrictions on seeking modification; it did not specify separate amounts for child support and alimony.
- Kennedy moved to modify the support order, citing the plaintiff's cohabitation and the older child (aged 18 at hearing) moving to live with him.
- The trial court denied Kennedy's motion, finding no substantial change in circumstances and deeming evidence of cohabitation not credible.
- The Appellate Court reviewed whether the trial court abused its discretion in denying modification and in its legal interpretation of the agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether change in child’s residence is a substantial change in circumstances | Did not attend/provide evidence at hearing | Child’s move to live with him constitutes a substantial change | Change in residence is a substantial change; trial court’s contrary finding was erroneous |
| Court’s failure to determine child support component of unallocated order | Not present at hearing | Court must unwind/unbundle support and determine correct child support under guidelines | Court must unbundle child support from alimony and apply guidelines on remand |
| Modifiability of unallocated alimony and support | Not addressed/present | Agreement does not bar modification, including for cohabitation | Agreement did not unambiguously preclude modification; modifiability allowed |
| Exclusion of older child’s testimony and credibility of investigator | Not present | Excluding son’s testimony was error; evidence of cohabitation sufficient | Court misapplied law, erred by precluding son’s testimony and discrediting investigator’s evidence without explanation; new hearing required |
Key Cases Cited
- Tomlinson v. Tomlinson, 305 Conn. 539 (trial court must unbundle unallocated orders; custody changes can warrant modification)
- Gabriel v. Gabriel, 324 Conn. 324 (modification review standard and enforceability of nonmodifiable alimony provisions)
- Fox v. Fox, 152 Conn. App. 611 (burden on movant to show substantial change in circumstances for modification)
- Brown v. Brown, 199 Conn. App. 134 (requirement to unbundle child support and alimony from unallocated support order before modification)
- Flood v. Flood, 199 Conn. App. 67 (review standard for substantial change findings)
- Nuzzi v. Nuzzi, 164 Conn. App. 751 (clean hands doctrine and deference to fact-finder's assessment of credibility)