O'Donnell v. Bozzuti
84 A.3d 479
Conn. App. Ct.2014Background
- Divorce granted after 19-year marriage; three children (19, 17, 12 at dissolution). Original decree (Oct. 11, 2011) ordered child support ($156/wk until July 7, 2012; $110/wk thereafter for youngest) and alimony ($100/wk); parties to split unreimbursed medical/dental expenses equally.
- At dissolution defendant was unemployed but had a history of well‑paid, short‑term consulting assignments with failed banks and had recently received unemployment benefits; child support worksheets used defendant’s unemployment income for calculations.
- Plaintiff moved on June 13, 2012 to modify support and alimony, asserting defendant obtained gainful employment (Greenwood Capital contract consulting with a failing Oklahoma bank).
- At the modification hearing Judge Axelrod found defendant’s reported monthly calculation incorrect, adjusted Greenwood Capital income upward (using 4.33 weeks/month), allowed most business deductions, and found defendant’s net weekly income substantially higher than previously used.
- Judge Axelrod increased child support to $277/wk (retroactive to the motion), increased alimony to $400/wk, and allocated 65% of unreimbursed medical/dental expenses to defendant; defendant appealed claiming no substantial change and inadequate §46b‑82 consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a substantial change in circumstances to modify support/alimony | Defendant obtained gainful employment, so circumstances changed warranting modification | Defendant’s income actually decreased from the figure used at dissolution; new employment is temporary so not a basis for modification | Court held substantial change existed: defendant’s income at modification was higher than the income underlying the original orders and consistent with his prior occupation, so modification was proper |
| Whether the trial court properly calculated defendant’s income | Trial court should use defendant’s corrected higher income to set new obligations | Defendant argued his reported net weekly income was lower and the court mischaracterized earnings | Court accepted Judge Axelrod’s recalculation (multiplying weekly by 4.33 for monthly average and disallowing an improper business deduction) and found higher income supported new orders |
| Whether Judge considered §46b‑82 factors when modifying alimony | Modification is appropriate under §46b‑82 given new income and parties’ circumstances | Court focused only on income and failed to consider other statutory factors (ability to pay, needs, assets) | Court presumed it considered §46b‑82 factors (record included financial affidavits and recent dissolution findings); no abuse of discretion shown |
| Whether temporary nature of contract precludes modification | Plaintiff: contract reflects return to defendant’s customary consulting work | Defendant: Oklahoma contract is temporary and uncertain, so shouldn’t drive modification | Court relied on defendant’s prior multi‑year consulting pattern and reasonably treated the contract as a return to prior work; modification appropriate |
Key Cases Cited
- Weinstein v. Weinstein, 104 Conn. App. 482 (Conn. App. 2007) (standard of review in domestic relations matters and presumption in favor of trial court findings)
- Schade v. Schade, 110 Conn. App. 57 (Conn. App. 2008) (process for §46b‑86 modification motions: threshold finding of substantial change followed by §46b‑82 analysis)
- Simms v. Simms, 283 Conn. 494 (Conn. 2007) (burden on moving party to prove substantial change in circumstances)
- Borkowski v. Borkowski, 228 Conn. 729 (Conn. 1994) (§46b‑82 factors relevant to modification; same criteria as initial award)
- Gay v. Gay, 70 Conn. App. 772 (Conn. App. 2002) (comparison of present overall circumstances to those at original award required for modification)
- Elliott v. Elliott, 14 Conn. App. 541 (Conn. App. 1988) (trial court must consider §46b‑82 factors but may weigh them as appropriate)