67 Conn. App. 7 | Conn. App. Ct. | 2001
Opinion
The defendant, Susan Prial, appeals from the trial court’s judgment granting the postjudgment motion for modification of alimony and child support filed by the plaintiff, Frank J. Prial III. On appeal, the defendant claims that the court improperly (1) considered factors other than the relocation of one of the children from the defendant’s home to the plaintiffs home, including a change in the plaintiffs income, as a substantial change in circumstances to support a reduction in child support and alimony, (2) applied an incorrect legal standard, relying on the Uniform Child Support Guidelines, in computing child support and (3) failed to find the plaintiff in contempt for his failure to pay the order of child support and alimony. We reverse the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. A judgment of dissolution was rendered on May 14, 1999, pursuant to a separation agreement between the parties, which agreement was incorporated in the judgment in its
Five months later, the plaintiff filed a motion to modify, claiming that one of the minor children had relocated to his home, and “therefore, there has been a substantial change in circumstances.” He further claimed that he had found employment at Stratton Mountain
The court found a substantial change in the financial circumstances of the plaintiff since the date of the dissolution, warranting a modification of alimony and support orders. The court further denied the defendant’s motion for contempt, finding that the plaintiffs failure to pay was not wilful. This appeal followed.
The standard of review in family matters is well settled. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not
I
The defendant first claims that the court improperly considered facts other than the one change in circumstances alleged in the motion to modify, that one minor child had elected to relocate to the plaintiffs home.
“Periodic alimony is based primarily on a continuing duty to support. . . . Modification of alimony, after the
“A final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Citation omitted; internal quotation marks omitted.) Hayward v. Hayward, 53 Conn. App. 1, 9, 752 A.2d 1087 (1999). “The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an alimony award.” (Internal quotation marks omitted.) Shearn v. Shearn, 50 Conn. App. 225, 228, 717 A.2d 793 (1998).
Some additional facts are necessary for our resolution of this claim. At the time the motion was filed, the plaintiff was living in Manchester, Vermont, in one of his mother’s houses, and his mother had been paying all of his expenses prior to his winter work at the mountain. Prior to the separation of the parties, the plaintiff had been the editor and business manager of a family owned newspaper, of which the plaintiff owned a 7 percent interest. He had been employed in the family business for twenty years prior to the divorce. He had earned between $193,000 and $225,000 in each of the four years
The testimony revealed that he had never asked to be rehired at the newspaper, even though he had been admonished to do so in an earlier judicial proceeding prior to judgment. He could not produce any correspondence that might confirm his claim that he had sought employment in his field.
The record does not support the court’s finding that there was a substantial change in circumstances in the plaintiffs income and assets. It is clear that the plaintiff voluntarily terminated his employment in a family owned business, and that he continued to be supported by his family in significant ways even while he was neglecting his responsibilities to his children and to his former wife. At the time the decree entered, the plaintiff was unemployed and, nevertheless, agreed to support his family in much the same manner as he had during his employment at the family business. He was able and willing to do so despite his being unemployed. The parties’ agreement to revisit the issues of alimony and child support cannot contract away the statutory requirement that the party seeking modification demonstrate a substantial change in circumstances and excuse the failure to comply with the rules of practice with respect to the filing of such a motion. In this case, the only change of circumstance alleged in the motion to modify was the change in residence of one minor child from the defendant’s home to the plaintiffs home. The record does not disclose the use of the guidelines. In fact, it appears from the record that the parties agreed that this was not a guidelines case. The motion was predicated on one ground.
We conclude, on the basis of the plaintiffs failure to show a substantial change in his income and assets since the issuance of the dissolution decree, that the
II
The defendant next claims that the court improperly modified child support based on an application of the uniform support guidelines. We agree.
General Statutes § 46b-86 (a) provides that a court may modify an order for alimony or support pendente lite “upon a showing that the final order for the child support substantially deviates from the child support guidelines established pursuant to section 46b-215 (a).”
In this case, the parties did not apply the guidelines in the original decree, and the court ratified their agreement, adding to its declaration in the judgment that it was incorporating the agreement by reference, the statement that child support would be paid by contingent income withholding. The plaintiff did not predicate his motion to modify on a substantial deviation of
Ill
Last, the defendant claims that the court improperly failed to find the plaintiff in contempt for his failure to pay alimony and child support as ordered. We agree.
A finding of contempt is a question of fact, and our standard of review is to determine “whether the court abused its discretion in failing to find that the actions or inactions of the [party] were in contempt of a court order.” Bunche v. Bunche, 36 Conn. App. 322, 324, 650 A.2d 917 (1994). “To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Citation omitted.) Bowers v. Bowers, 61 Conn. App. 75, 81, 762 A.2d 515 (2000), cert. granted on other grounds, 255 Conn. 939, 767 A.2d 1211 (2001).
The facts do not support the finding that the plaintiffs conduct was not wilful. The record discloses the voluntary unemployment of the plaintiff; his promise to pay
The judgment is reversed and the case is remanded with direction to reinstate the order of alimony in the judgment, to enter a child support order that is consistent with the judgment but takes into account the relocation of one of three children and to reconsider the motion for contempt, and for further proceedings to determine the plaintiffs arrearage.
In this opinion the other judges concurred.
The plaintiff was paid $9 per hour working in ski rentals, but had an argument with the manager and quit in December, 1999, shortly after he had commenced that employment.
The plaintiffs motion for modification also provided as a factual basis his newfound employment; however, by the time the motion was decided, the plaintiff was no longer working. See footnote 1.