Opinion
No. 35595.
11-17-2015
Lara C. COURY v. Steven E. COURY.
Erich Henry Gaston, Waterbury, with whom was Patrick Heeran, and, on the brief, Nancy Segore–Freshman, Westport, for the appellant (plaintiff). Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellee (defendant).
**522 Erich Henry Gaston, Waterbury, with whom was Patrick Heeran, and, on the brief, Nancy Segore–Freshman, Westport, for the appellant (plaintiff).
Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellee (defendant).
LAVINE, SHELDON and KELLER, Js.
Opinion
KELLER, J.
The plaintiff, Lara C. Coury, appeals from the judgment of the trial court granting a postdissolution motion filed by the defendant, Steven E. Coury, wherein he requested that the court modify the unallocated support and supplemental bonus alimony awards entered in the judgment of dissolution. The plaintiff claims that the trial court erred by (1) entering an order eliminating her supplemental bonus alimony award and (2) retroactively modifying the unallocated support and supplemental bonus alimony awards. We reverse the judgment in part for two reasons. First, the court erred by retroactively modifying the monthly unallocated support award to a monthly alimony award in a lesser amount without delineating the portion of the unallocated support award that was attributable to child support and limiting its retroactive modification of that amount. Second, the court erred by retroactively modifying the supplemental bonus alimony award. The judgment is affirmed in all other respects.
**523 The following facts and procedural history are relevant here. The parties were married on June 1, 2002, in Rhode Island. They have three minor children. On August 5, 2009, the plaintiff filed for divorce. On January 18, 2011, the trial court, Gordon, J., rendered a judgment of dissolution. Although the court did not attribute fault to either party, it found that the plaintiff's abuse of alcohol and the defendant's controlling behavior, as well as his infidelity, contributed to the breakdown of the parties' marriage.
The court entered a number of orders in the judgment of dissolution. Of import to this appeal are the court's orders concerning the custody of the parties' three minor children and the monthly unallocated support and supplemental bonus alimony awarded to the plaintiff. The court ordered that the parties share joint legal custody of all three of the parties' minor children. In addition, the plaintiff was awarded sole physical custody of all three minor children, contingent on her compliance with the conditions set forth in the judgment pertaining to her mental health, which included a prohibition against consuming alcohol. The court awarded the plaintiff $11,000 per month in unallocated support until June 30, 2019, unless other specified conditions were met that would terminate the award at an earlier date. Furthermore, as a supplemental bonus alimony award, the court awarded to the plaintiff 30 percent of any annual bonus income the defendant earned in excess of his base salary, as it existed at the time of the dissolution, of $300,000.
On October 16, 2011, the defendant filed an ex parte motion seeking modification of the court's custody and visitation orders. In his motion, the defendant alleged that the plaintiff had been arrested for driving under the influence of alcohol on October 12, 2011. The defendant requested, inter alia, that the court modify the judgment of dissolution and award him physical custody of the parties' three minor children. The court, Reynolds, J., granted the motion on October 17, 2011, and, without prejudice, entered an ex parte order that, inter alia, transferred sole physical custody of the parties' three minor children to the defendant, subject to a hearing scheduled to be held at a later date and any other orders that the court entered.
In addition to his ex parte motion for modification, the defendant filed a motion to modify permanently the court's custody and visitation orders. After conducting a hearing on the motion on November 1, 2011, the court, Winslow, J., modified the judgment of dissolution and awarded sole physical custody of the parties' minor children to the defendant, although it did not modify the original joint legal custody order. The court further ordered that the plaintiff be precluded from filing a motion to modify the new physical custody order within the six months following the judgment. In addition, the court ordered that the plaintiff's visitation was to be supervised and to occur no fewer than three times per week, but the court did not set a specific schedule of days or hours.
**524 On November 16, 2011, the defendant filed the motion to modify the unallocated support and supplemental bonus alimony awards at issue in this appeal. In support of his motion, he alleged, inter alia, five reasons for the modification: he had sole physical custody of the parties' three minor children; he owed state and federal taxes for the 2009 and 2010 tax years, as well as accountant fees; his current wife had given birth to a child; his current wife's employment had been terminated; and the plaintiff had begun cohabiting with her mother. On the basis of the foregoing allegations, the defendant claimed that a substantial change in circumstances had occurred, and he requested that the court enter orders reducing the unallocated support award and eliminating the supplemental bonus alimony award in its entirety.
For various reasons, proceedings on the defendant's motion to modify did not commence until January, 2013, after the court granted numerous motions for continuance. During the proceedings, the defendant requested that the court, Winslow, J., retroactively modify the judgment of dissolution dating back to November 28, 2011. The plaintiff objected to that request, asserting that General Statutes § 46b–86 (a) prohibited the court from retroactively modifying the orders because the defendant had failed to comply with the service of process requirement promulgated by General Statutes § 52–50. In response, the defendant contended that the plaintiff had not filed a motion to dismiss and had participated in all of the proceedings on the motion, thereby effectively waiving any argument concerning improper service of process. In addressing the issue of retroactivity, Judge Winslow stated that, according to her personal notes, which were never made part of the record, there had been a reservation of retroactivity by the parties to November 28, 2011. The record, however, indicates neither a request on the part of the defendant for a retroactive modification nor any agreement between the parties to such an express reservation at any time between the date the motion was filed and the date the court granted the motion to modify, April 2, 2013.
On April 2, 2013, the court rendered judgment granting the motion to modify. The court, rather than entering a modified unallocated support award, awarded the plaintiff alimony in the amount of $9600 per month, retroactive to January 1, 2012. According to the order, the alimony award would decrease to $7400 per month commencing on May 1, 2013. The court also ordered that, retroactive to **525 January 1, 2012, the defendant was no longer obligated to pay child support to the plaintiff. The court then eliminated the supplemental bonus alimony award in its entirety, retroactive to January 1, 2012. Additionally, to encourage the plaintiff's rehabilitation, the court granted the plaintiff a safe harbor in the amount of $45,000 per year before the defendant could seek further modification of his alimony obligation. The court also ordered that the defendant pay the plaintiff $400 per month, starting on May 1, 2013, on an arrearage of $10,036.37 in unpaid supplemental bonus alimony found past due and owing to the plaintiff. This appeal followed. Additional facts will be set forth as necessary.
I
We first address the plaintiff's claim that the court erred by entering an order eliminating the supplemental bonus alimony award, which entitled her to 30 percent of any bonus income the defendant earned in excess of his former annual base salary of $300,000. Specifically, she asserts that the court improperly based the order on its finding that a substantial change in circumstances had occurred as a result of the transfer of sole physical custody of the parties' three minor children from the plaintiff to the defendant. In addition, she asserts that the court failed to set forth the facts it relied on in support of the order. We disagree.
The following additional facts are relevant here. During the first day of proceedings on the defendant's motion to modify, the court stated the following: “All right. If the issue is the threshold question, whether there's been a substantial change in circumstances since the entry of the judgment, I don't think we need to spend a lot of time on that issue, because the [physical] custody of the three children has changed from the plaintiff to the defendant, making an unallocated order somewhat difficult to swallow. At this point, there has to be a separation of child support and alimony, without question.
“So, in itself, the existing order, which [the defendant] seeks to modify, has to be changed. There's no question there's been a substantial change in circumstances that requires a change in those support orders. I don't think we need to spend a lot of time, therefore, on that threshold issue of whether or not there's been a substantial change in circumstances.... Let's instead address ourselves to what the orders should be, as a result of a motion to modify ... subsequent to the judgment. So, I'm not so much interest[ed] in it showing a change, as showing what should the orders be.”
**526 Then, prior to entering its orders, the court stated the following: “[W]hen there's a motion to modify ... the first issue is one of substantial change, and the modification, in this case, calls to us to turn to § 46b–86. I indicated earlier that I didn't think there was much of an issue here and I think both sides essentially conceded that there have been enough [of a] substantial change so that we get past that issue.
“Of course, the children are primarily residing with [the defendant] and have been since 2011 at a later point in the year. So, the criteria that apply now, and that we're going to look at, are the criteria from General Statutes § 46b–82, which is the modification statute. It's actually the basic statute for alimony, but it's also the statute we look back [to] for purposes of alimony [modification].
“[I]t involves not just income, to each party, that is a piece of it. [The criteria also include] the needs of each party and the estate and the standard of living, so to speak, of each party, but, also, such fairly cut and dry matters as the ages of the parties, their health, a matter of no mean significant in this case, by the way, health and an assortment of other issues [including] the length of the marriage [and] cause of the breakdown of the marriage.
A
Under the legal principles we have outlined, prior to eliminating the supplemental bonus alimony award, the court was obligated to find that a substantial change in the postdissolution circumstances of the parties had occurred that warranted modification of the award. On the basis of the record as a whole, despite the five stated reasons in the defendant's motion for modification, the court appeared to ground all of its financial orders, including its elimination of the supplemental bonus alimony award, on its finding that a substantial change in circumstances had occurred as a result of the transfer of sole physical custody of the parties' three minor children from the plaintiff to the defendant. According to the plaintiff, without citation to any authority, such a change in custody can form the basis for a finding that a substantial change in circumstances had occurred for the purpose of modifying a child support award, but it cannot form the basis for that finding for the purpose of modifying an alimony award. The plaintiff argues that a modification of custody in this case would have no bearing on the supplemental bonus alimony order. Consequently, because the change in custody was the only substantial change in circumstances cited by the court in support of its modification of the supplemental bonus alimony award, the plaintiff asserts that the court failed to find an appropriate substantial change in circumstances meriting modification of the supplemental bonus alimony award. We disagree.
A court has broad discretion in determining whether a substantial change in circumstances has occurred, warranting a modification of alimony or child support orders. See O'Donnell v. Bozzuti, supra, 148 Conn.App. at 87, 84 A.3d 479 (“Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court's discretion is essential.” [Emphasis added; internal quotation marks omitted.] ). “Modification of an alimony award may be proper where either the needs of the recipient spouse or the financial ability of the obligor spouse to pay alimony have changed since the original award was made, as well as where the financial circumstances of both parties have changed.” (Internal quotation marks omitted.) Gay v. Gay, 70 Conn.App. 772, 782, 800 A.2d 1231 (2002), rev'd in part on other grounds, 266 Conn. 641, 835 A.2d 1 (2003). Contrary to the plaintiff's contention, a change in the physical custody of three minor children, the oldest having been born in 2006, is an appropriate factor for a court to consider when determining whether a substantial change in circumstances has occurred warranting modification of an alimony order. See Cummock v. Cummock, 188 Conn. 30, 32, 448 A.2d 204 (1982) (noting that loss of child support payments upon transfer of custody constitutes one factor for trial court to consider in determining whether substantial change in circumstances has occurred warranting modification of alimony); **529 Jacobsen v. Jacobsen, 177 Conn. 259, 266, 413 A.2d 854 (1979) (trial court did not abuse discretion by finding that substantial change in circumstances had occurred warranting modification of alimony where plaintiff was employed, no longer had custody of child, and owned valuable real estate).
Furthermore, we note that “[o]nce a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony ... are relevant to the question of modification.... By so bifurcating the trial court's inquiry, however, we did not mean to suggest that a trial court's determination of whether a substantial change in circumstances has occurred, and its determination to modify alimony, are two completely separate inquiries. Rather, our bifurcation of the trial court's modification inquiry was meant to reflect that, under our statutes and cases, modification of alimony can be entertained and premised upon a showing of a substantial change in the circumstances of either party to the original dissolution decree. General Statutes § 46b–86. Thus, once the trial court finds a substantial change in circumstances, it can properly consider a motion for modification of alimony. After the evidence introduced in support of the substantial change in circumstances establishes the threshold predicate for the trial court's ability to entertain a motion for modification, however, it also naturally comes into play in the trial court's structuring of the modification orders.” (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994). Here, the substantially changed circumstance cited by the court in support of its modification was the transfer of sole physical custody of the parties' three minor children from the plaintiff to the defendant. We conclude that it was well within the court's broad discretion to modify the supplemental bonus alimony award on that basis.
B
The plaintiff also claims that the court erred by entering the order eliminating the supplemental bonus alimony award because it did not set forth any findings in support of the order. We disagree. A court need not set forth, on the record, the findings it relied on in entering new financial orders following its conclusion that modification of prior financial orders is warranted. See O'Donnell v. Bozzuti, supra, 148 Conn.App. at 90–91, 84 A.3d 479. We recognize the well established presumption that a court has acted correctly when entering its orders, and we will affirm a court's orders if the record contains sufficient evidence to support them. Id., at 91, 84 A.3d 479.
II
We proceed to address the plaintiff's claim that the court erred by retroactively modifying the unallocated support and supplemental bonus alimony awards. Specifically, she asserts that the defendant failed to comply with § 46b–86 (a), which required the defendant to serve her with his motion to modify via a statutorily authorized officer, pursuant to § 52–50, in order to authorize the court to retroactively modify the prior support orders. We conclude the defendant's failure to serve the plaintiff with his motion to modify in accordance with §§ 46b–86 (a) and 52–50 prohibited the court from retroactively modifying the alimony portion of the unallocated support award, but it did not prevent the court from retroactively modifying the child support portion of the unallocated support award. Accordingly, the court committed error by retroactively modifying the unallocated support award to an alimony award in a lesser amount without delineating the portion of the unallocated support award that was attributable to child support and limiting its retroactive reduction to that amount. Furthermore, the court erred by retroactively modifying the supplemental bonus alimony award.
The following additional facts are relevant here. On November 1, 2011, prior to filing his motion to modify the unallocated support and supplemental bonus alimony awards, the defendant mailed a copy of the motion to the plaintiff. At no point did the defendant comply with the service of process requirement established by § 52–50.
We begin by setting forth the relevant standard of review and legal principles. The plaintiff's claim requires us to examine statutory language and determine whether the trial court acted in accordance with its statutory authority. “Our deferential standard of review [in domestic relations cases] ... does not extend to the court's interpretation of and application of the law to the facts. It is axiomatic that a matter of law is entitled to plenary review on appeal.” (Internal quotation marks omitted.) Fulton v. Fulton, supra, 156 Conn.App. at 745, 116 A.3d 311.
Section 46b–86 (a) provides in relevant part: “No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion **534 upon the opposing party pursuant to section 52–50....” Section 52–50(a) provides in relevant part: “All process shall be directed to a state marshal, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person....”
We have held previously that parties must comply strictly with § 46b–86 (a) before a court may determine whether to retroactively modify support orders. In Shedrick v. Shedrick, 32 Conn.App. 147, 147–48, 627 A.2d 1387 (1993), this court affirmed a trial court's denial of a plaintiff's request to modify an unallocated support order retroactively to the date on which she filed her motion to modify. This court based its judgment on the plaintiff's failure to provide the defendant with proper service of process, as the plaintiff had mailed a copy of her motion to modify to the defendant rather than complying with § 52–50. Id., at 151–52, 627 A.2d 1387.