BETHANY FLOOD v. ROBERT FLOOD
AC 42477
Appellate Court of Connecticut
July 14, 2020
Prescott, Devlin and Sheldon, Js.
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Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from judgment of the trial court, which granted the plaintiff‘s motion for a modification of the defendant‘s child support obligation. The parties’ separation agreement, which had been incorporated into the dissolution judgment, required the defendant to pay the cost of the private elementary school education for the parties’ minor child through the conclusion of the fifth grade. At the time the separation agreement became enforceable, the annual cost of the child‘s private school tuition was $55,000. After the child completed the fifth grade and was enrolled in public school, the plaintiff sought a modification of the defendant‘s child support obligation on the grounds that there had been a substantial change in circumstances because, inter alia, the child was no longer attending private school. The defendant also filed a motion for modification of child support, in which he requested a decrease in his court-ordered obligation on the ground that the plaintiff‘s income had increased since the date of the last support order. The trial court determined that the parties had contemplated that the plaintiff accepted a lower weekly child support amount in return for the defendant‘s being responsible for paying 100 percent of the child‘s private school tuition. The court further determined that, because the child had stopped attending private school, the savings for the defendant in tuition represented a substantial change of circumstances that entitled the plaintiff to a modification in child support. The court awarded the plaintiff $1246 in weekly child support, which was the maximum presumptive amount prescribed by the child support guidelines. The court order was silent as to the defendant‘s motion for modification. On appeal, the defendant claimed, inter alia, that the trial court erred in finding that there had been a substantial change in circumstances and that the court had ordered an improper wealth transfer between the parties because it failed to consider or respond to the needs of the child. Held:
- The trial court‘s finding that there had been a substantial change in the defendant‘s financial circumstances was not clearly erroneous: the expiration of the defendant‘s court-ordered obligation to pay for the child‘s private schooling removed an encumbrance on his assets that made an additional $55,000 per year available to him for all purposes, including the payment of child support, and, although the separation agreement did not expressly link the amount of the plaintiff‘s initial child support award to the defendant‘s agreement to pay for the child‘s private schooling or entitle the plaintiff to reconsideration of that order once the defendant‘s payment obligation ended, the court reasonably determined that the amount of that award should be reconsidered in light of the termination of the defendant‘s private school payment obligation.
- The trial court did not abuse its discretion in determining that the amount of the child support award would be $1246 per week; the court did not determine the amount of the award until after it conducted an extensive evidentiary hearing and considered the arguments of counsel, the parties’ motions, memoranda of law and testimony, and all relevant rules, statutory authority and case law, and the court was not required to cite additional reasons for its increase in the defendant‘s child support obligation, as its order was consistent with statutory (
§ 46b-84 (d) ) criteria and within the range between the minimum and maximum support amounts established by the child support guidelines. - The defendant could not prevail on his claim that the trial court erred by failing to consider and rule on his motion for modification of his child support obligation; although the trial court never made a formal ruling on the defendant‘s motion, it expressly acknowledged that the motion was before it when it granted the plaintiff‘s motion for modification, which effectively and intentionally denied the defendant‘s motion, and, as the defendant conceded to this court that his motion was effec- tively denied, he could not be granted relief, as he failed to raise a substantive challenge to the ruling.
Argued February 6—officially released July 14, 2020
Procedural History
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Shay, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court, Truglia, J., granted the plaintiff‘s motion for modification of child support and rendered judgment thereon, and the defendant appealed to this court. Affirmed.
Gary I. Cohen, for the appellant (defendant).
Eric R. Posmantier, with whom was Kimberly A. Stokes, for the appellee (plaintiff).
Opinion
The following facts and procedural history are relevant to our resolution of this appeal. The parties were married on June 5, 2004. On November 7, 2014, the trial court, Shay, J., rendered judgment dissolving the parties’ marriage. The judgment of dissolution incorporated by reference the terms of a written separation agreement between the parties, wherein they agreed, inter alia, to the division of their marital property, to the alimony and child support obligations between them, and to all arrangements for the parenting and schooling of their minor daughter (child). Section 4.1 of the separation agreement provides, more particularly, that the defendant would provide for the financial support of the child in three ways: (1) by making a weekly payment to the plaintiff of $464 in child support; (2) by continuing to provide health insurance for the child, and paying 80 percent of any unreimbursed medical expense that might be incurred for her benefit; and (3) by paying all expenses for the child‘s enrollment in private elementary school through the conclusion of fifth grade at Pear Tree Point School or another school mutually agreed to by the parties.1
At the time the separation agreement became enforceable under the judgment of dissolution, the child was enrolled in the fourth grade at Pear Tree Point School in Darien, where the cost of her attendance was approximately $55,000 per year. The child completed the fifth grade at Pear Tree Point School in June, 2016. Thereafter, in September, 2016, the child was enrolled in a public middle school in Greenwich.
On December 18, 2017, the plaintiff filed a motion for modification of child support. The plaintiff alleged in her motion for modification that there had been a substantial change in circumstances since the date of the last child support order because (1) “the defendant‘s total compensation from employment has increased in one or more of the years following the entry of the last order,” and (2) “the minor child is no longer attending private school.”
On October 1, 2018, the defendant filed his own motion for modification of child support, in which he requested a decrease in his court-ordered obligation to pay child support to the plaintiff. In support of his motion for modification, the defendant alleged that there had been a substantial change in the plaintiff‘s financial circumstances since the date of the court‘s last child support order because the plaintiff‘s income had increased in that period by 188 percent. The defendant claimed, more specifically, that whereas the plaintiff‘s gross base pay as a part-time nurse, on the date of the judgment of dissolution, had been $186.65 per week, or $9705.80 per year, her gross base pay on the date of his motion for modification, in her then current position as a full-time nurse, was $537 per week, or $27,924 per year. The defendant further alleged that whereas, when the judgment of dissolution was rendered, the plaintiff‘s total expenses for the child had been $882.90 per week, or $45,910.80 per year, her expenses for the child had since fallen by 43 percent, to a total of $504 per week, or $26,208 per year.
In her memorandum of law in support of her motion for modification, the plaintiff not only reiterated her claims that there had been a substantial change in circumstances
The defendant filed a memorandum of law in opposition to the plaintiff‘s motion for modification, in which he argued that the plaintiff could not meet her burden of demonstrating that a substantial change in circumstances had occurred since the date of the last court order. Specifically, the defendant argued that there had been no substantial change in his financial circumstances since that date because there had not been a substantial change in his net income in that time frame. Child support, he argued, must be calculated on the basis of the parties’ net income, not their disposable income. Therefore, he argued, the child‘s enrollment in public school meant only that she had one less need for financial support at the time of the plaintiff‘s motion than she had when the judgment of dissolution was rendered, thus providing good reason for him to pay less, not more, money in child support than he was required to pay under the last court order. The plaintiff, he therefore concluded, was improperly using her motion for modification to make a “cash grab in the form of child support . . . .”
On December 17, 2018, the court, Truglia, J., conducted a full day hearing on the parties’ conflicting motions for modification. At that hearing, the plaintiff argued once again that there had been a substantial change in the defendant‘s financial circumstances since the date of the last child support order because (1) his income had increased in the interim and (2) the child was no longer attending private elementary school, and thus the defendant was no longer obligated to pay for her private schooling. The plaintiff contended that because the parties’ combined net weekly income exceeded $4000, a proper award of child support under the child support guidelines could be not less than $443 per week nor more than $1246 per week, as determined by our Supreme Court in Dowling v. Szymczak, supra, 309 Conn. 390, and Maturo v. Maturo, 296 Conn. 80, 995 A.2d 1 (2010). Accordingly, the plaintiff requested the court to order an increase in the defendant‘s child support obligation to $1246 per week, the maximum amount awardable without deviating from the guidelines. In support of her position, the plaintiff argued that, although the child was entitled to receive up to a certain percentage of her father‘s income so that she might enjoy the same luxuries after her parents separated as she would have enjoyed if they had remained together, the current child support award did not give her that opportunity because it only enabled her to enjoy such luxuries when she was with the defendant.
In response to the plaintiff‘s arguments, the defendant contended that the alleged increase in his income since the date of the last court order and the intervening termination of his obligation to pay for the child‘s private schooling did not support a finding of a substantial change in circumstances.
In support of his own motion for modification, the defendant reargued his pleaded claim that the amount of his child support obligation should be decreased because, since the time of the divorce, the plaintiff‘s income had increased by 188 percent while her expenses for the child had decreased by 43 percent.
On January 2, 2019, the court granted the plaintiff‘s motion for modification by issuing a written order requiring the defendant to pay the plaintiff $1246 per week in child support, as she had requested, retroactive to January 8, 2018—the date on which the defendant had been served with the plaintiff‘s motion. In its order, the court explained the basis for its ruling as follows:
“The court has carefully considered all of the evidence presented by both parties in this case, including the testimony of both parties and the financial records presented in support of and in opposition to the plaintiff‘s motion to modify child support.
“The court finds that the plaintiff has carried her burden of proof by a preponderance of the evidence that there has been a substantial change in circumstances since the initial child support order was entered in November, 2014. The court finds that the parties contemplated that the plaintiff accepted a lower weekly child support amount in return for the defendant being responsible for paying 100 percent of the private school tuition and other school costs for the parties’ daughter. At the time of judgment, the daughter attended the Pear Tree Point School. The child stopped attending the Pear Tree Point School in June, 2016, and began attending a public school . . . in the fall of 2016. The savings in annual private school tuition represents a substantial change of circumstances entitling the plaintiff to a modification in child support. . . .
“[T]aking into consideration the respective gross and after-tax incomes of the parties and the parties’ respective assets, the court finds that the proper weekly child support order is the maximum presumptive amount as prescribed by the guidelines.”
Although the trial court‘s order was silent as to the defendant‘s motion for modification, the defendant never sought judicial relief to clarify the nature or scope of the ruling set forth in that order. This appeal followed.
I
On appeal, the defendant first claims that the trial
court erred in granting the plaintiff‘s motion for modification by finding that there had been a substantial change in circumstances since the date of the judgment of dissolution, under which the last court order requiring him to pay
The plaintiff does not dispute the defendant‘s claim that she did not base her motion for modification on allegations or proof that the parties intended to base the initial amount of her child support award on the defendant‘s willingness to pay for the child‘s private schooling through the fifth grade. She contends, however, that although the court undeniably made such a finding, that finding was not central to its ultimate determination that there had been a substantial change in the defendant‘s financial circumstances since the date of the judgment of dissolution. Instead, she argues, the court‘s finding of a substantial change in circumstances was based principally on the proven fact that the termination of the defendant‘s private school payment obligation for the child had made a considerable sum of previously committed money—specifically, $55,000 per year in after-tax dollars—available for his discretionary use since the child completed the fifth grade, thereby substantially increasing his usable assets and materially improving his financial condition since that time. For the following reasons, we agree with the plaintiff that the trial court‘s finding of a substantial change in circumstances must be upheld.
We begin by setting forth the applicable standard of review. “The scope of our review of a trial court‘s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Nevertheless, we may reverse a trial court‘s ruling on a modification motion if the trial court applied the wrong standard of law.” (Internal quotation marks omitted.) Fox v. Fox, 152 Conn. App. 611, 619, 99 A.3d 1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014).
“Thus, [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the
“A finding of a substantial change in circumstances is subject to the clearly erroneous standard of review.” (Internal quotation marks omitted.) Thomasi v. Thomasi, 181 Conn. App. 822, 842, 188 A.3d 743 (2018). A factual finding is not clearly erroneous when there is evidence in the record to support it, unless “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Kirwan v. Kirwan, 185 Conn. App. 713, 726, 197 A.3d 1000 (2018).
Following the evidentiary hearing, the court found that “the plaintiff has carried her burden of proof by a preponderance of the evidence that there has been a substantial change in circumstances since the initial child support order was entered in November, 2014. The court finds that the parties contemplated that the plaintiff accepted a lower weekly child support amount in return for the defendant being responsible for paying 100 percent of the private school tuition and other school costs for the parties’ [child]. At the time of judgment, the [child] attended the Pear Tree Point School. The child stopped attending the Pear Tree Point School in June, 2016, and began attending a public school . . . in Greenwich in the fall of 2016. The savings in annual private school tuition represents a substantial change of circumstances entitling the plaintiff to a modification in child support.” (Emphasis added.)
By the foregoing language in its order granting the plaintiff‘s motion for modification, the trial court made it clear that the principal basis for its finding that there had been a substantial change in circumstances since the date of the last court order was not the mere termination of the defendant‘s obligation to pay for the child‘s private schooling, which had no automatic consequences under the parties’ separation agreement or the judgment of dissolution, but the material improvement in the defendant‘s financial situation that resulted from the defendant‘s subsequent “savings in annual private school tuition . . . .” As the realization of such substantial savings is indisputable, the basic issue presented to this court is whether such a change in a party‘s financial circumstances, substantially increasing his usable assets without a
We find, more particularly, that Bartlett v. Bartlett, 220 Conn. 372, 382–83, 599 A.2d 14 (1991), and Fabiano v. Fabiano, 10 Conn. App. 466, 469-70, 523 A.2d 937 (1987), are instructive on this issue. In Bartlett, the plaintiff alleged that it was improper for the trial court to refuse to consider evidence of the vesting of the defendant‘s inheritance since the date of the last court order as a basis for determining, on the plaintiff‘s motion to modify alimony, if there had been a substantial change in circumstances since the date of that order within the meaning of
Similarly, in Fabiano, “[t]he principal issue [on] appeal [was] whether the trial court erred by declining to modify the defendant‘s child support obligation to the plaintiff [under
The circumstances in the present case are similar to those at issue in Bartlett and Fabiano because here, as in those cases, the defendant gained access to and the right to make immediate use of substantial additional assets between the date of the last court order and the date of the plaintiff‘s motion for modification. Those newly available assets, more particularly, were savings the defendant had realized by no longer having to pay for the child‘s private
Importantly, this increase in the defendant‘s available assets did not result from mere changes in his discretionary spending habits or other voluntary choices as to how to use or invest his assets. No such change would constitute a substantial change in circumstances because the defendant could always reverse it in the continuing exercise of total control over all of his assets. Such a change would therefore not affect the defendant‘s total assets, which would always remain fully available to him, at all times and for all purposes, including consideration by the trial court as possible sources of wealth for the payment of child support.
The change in available assets in this case, by contrast, resulted from the termination of the defendant‘s obligation, under a binding court order, to make substantial payments of after-tax dollars for the child‘s private schooling. When the initial court order of child support was entered as part of the parties’ judgment of dissolution, that binding court order encumbered the defendant‘s assets to the extent of his private school payment obligation, and continued to do so for as long as the order remained in effect. The existence of the order thus made the encumbered assets unavailable to the defendant for any other purpose, including the payment of child support. When the order expired, however, the resulting encumbrance upon the defendant‘s assets was removed, making an additional $55,000 per year in after-tax dollars available to the defendant for all purposes, including the payment of child support. By gaining access to those previously encumbered assets, the defendant realized a substantial increase in his disposable wealth and a significant betterment of his financial condition just as surely as if he had received assets of the same value by the vesting of an inheritance, as in Bartlett, or the awarding of civil damages, as in Fabiano.
For the defendant, as the trial court properly recognized, the savings realized by the termination of his private school payment obligation were new assets in his pocket that could and should be considered in determining the amount of his child support obligation to the plaintiff going forward. Therefore, although the separation agreement did not expressly link the amount of the plaintiff‘s initial child support award to the defendant‘s agreement to pay for the child‘s private schooling through the fifth grade, or contain a look-back provision automatically entitling the plaintiff to reconsideration of that order once the defendant‘s payment obligation came to an end, the court reasonably determined that the amount of that award should be reconsidered in light of the termination of the defendant‘s private school payment obligation because a larger amount of money had thereby become available to the defendant for that purpose.3
II
The defendant next claims that the trial court erred because the granting of the plaintiff‘s motion for modification amounted to an impermissible postdissolution transfer of wealth between the parties rather than a need-based increase in the amount of his child support obligation. Specifically, the defendant contends that the trial court failed to consider the child‘s needs in establishing the amount of its modified child support award, thus rendering that award an improper wealth transfer to the plaintiff. We disagree.
A challenge to a trial court‘s application of a statute in modifying a child support order raises a question of law, over which this court exercises plenary review. See Mason v. Ford, 176 Conn. App. 658, 662, 168 A.3d 525 (2017). Our Supreme Court in Dowling provided clear guidance for determining child support obligations in high income situations: “In a trilogy of recent cases, [our Supreme] [C]ourt has already discussed the guidelines and accompanying schedule in detail. See Maturo v. Maturo, supra, 296 Conn. 80; Misthopoulos v. Misthopoulos, [297 Conn. 358, 999 A.2d 721 (2010)]; Tuckman v. Tuckman, 308 Conn. 194, 61 A.3d 449 (2013). Accordingly, we will not till this legal landscape any more than is necessary for the resolution of the present case. . . . [T]he schedule sets forth a presumptive percentage and resultant amount corresponding to specific levels of combined net weekly income; the schedule begins at $50 and continues in progressively higher $10 increments, terminating at $4000. . . . This court has recognized that the guidelines nonetheless apply to combined net weekly income in excess of that maximum amount. . . . Indeed, the regulations direct that, [w]hen the parents’ combined net weekly income exceeds [$4000], child support awards shall be determined on a case-by-case basis, and the current support prescribed at the [$4000] net weekly income level shall be the minimum presumptive amount.
“While the regulations clearly demarcate the presumptive minimum amount of the award in high income cases, they do not address the maximum permissible amount that may be assigned under a proper exercise of the court‘s discretion. . . . [T]his court has remained mindful that the guidelines . . . indicate that such awards should follow the principle expressly acknowledged in the preamble [to the guidelines] and reflected in the schedule that the child support obligation as a percentage of the combined net weekly income should decline as the income level rises. . . . We therefore have determined that child support payments . . . should presumptively not exceed the [maximum] percent [set forth in the schedule] when the combined net weekly income of the family exceeds
“Either the presumptive ceiling of income percentage or presumptive floor of dollar amount on any given child support obligation, however, may be rebutted by application of the deviation criteria enumerated in the guidelines and by the statutory factors set forth in
In adjudicating child support cases, courts in our jurisdiction have been reminded to avoid wealth transfers when awarding child support. In Maturo, for example, our Supreme Court expressly warned as follows against wealth transfers or disguised alimony: “The effect of unrestrained child support awards in high income cases is a potential windfall that transfers wealth from one spouse to another or from one spouse to the children under the guise of child support. In the present case, the award of 20 percent of the defendant‘s indeterminate annual bonus without any justification relating to the characteristics or needs of the children closely resembles the ‘disguise[d] alimony’ this court disapproved of in Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983).” (Emphasis in original.) Maturo v. Maturo, supra, 296 Conn. 105. Moreover, the preamble to the child support guidelines expressly acknowledges that a child support obligation, as a percentage of the combined net weekly income, should decline as the income level rises. Child Support and Arrearage Guidelines (2015), preamble, § (d), p. v.
In this case, the defendant focuses on the “warnings” to courts about making wealth transfers or providing increased alimony in the guise of increased child support awards in high income situations, as described in Maturo. The defendant‘s reliance on Maturo, however, is misplaced because Maturo involved a “child support order [that was found to be] improper because it was inconsistent with the statutory criteria and with the principles expressed in the guidelines.” Maturo v. Maturo, supra, 296 Conn. 89. As a result, the warning in Maturo was made in the context of a court‘s award of child support that exceeded the highest amount established for families at the upper limit of the schedule. Id., 87, 104-105. Therefore, the court in Maturo held that the trial court “misapplied the deviation criteria and failed to expressly consider the factors set forth in
In light of this important distinction, we cannot say that the trial court erred in determining the amount of its modified award under the guidelines. In making its order and findings of fact, the court conducted an extensive evidentiary hearing on the motions before it and reviewed the parties’ memoranda in support of and in opposition to those motions, the testimony they presented, all relevant rules, statutory authority and case law, and the arguments of counsel. In its order, the court expressly noted that the “statutory criteria of
III
Lastly, the defendant claims that the trial court erred because it failed properly to consider and rule on his motion for modification, and, thus, that this court should remand this case for further proceedings on that motion. Although the trial court never made a formal ruling on the defendant‘s motion, it expressly acknowledged that the defendant‘s motion was before it when it issued its ruling granting the plaintiff‘s conflicting motion. If parties file conflicting motions, and one such motion is granted, it can reasonably be presumed that
the other motion was thereby denied. See Lambert v. Donahue, 78 Conn. App. 493, 511-12, 827 A.2d 729 (2003); id., 512 (“although not specifically mentioned in the decision, the court did, in essence, rule on [the plaintiff‘s] motion . . . [by] finding in favor of [the defendant]“). The defendant concedes that under this rule of law, the court did in fact effectively deny his motion. In consideration of this applicable precedent, and of the defendant‘s failure to seek further judicial relief to clarify the nature or scope of the trial court‘s ruling, we conclude that by granting the plaintiff‘s motion for modification, the trial court effectively and, thus, intentionally, with full consideration of the defendant‘s counterarguments, denied the defendant‘s conflicting motion. In light of the defendant‘s concession that his motion was effectively denied, we cannot grant him relief with respect to that ruling
The judgment is affirmed.
In this opinion the other judges concurred.