Coury v. Coury ( 2015 )

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LARA C. COURY v. STEVEN E. COURY
(AC 35595)
Lavine, Sheldon and Keller, Js.
Argued May 13—officially released November 17, 2015
(Appeal from Superior Court, judicial district of
Danbury, Gordon, J. [dissolution judgment]; Winslow,
J. [motion for modification of unallocated support
and alimony].)
Erich Henry Gaston, with whom was Patrick
Heeran, and, on the brief, Nancy Segore-Freshman, for
the appellant (plaintiff).
Samuel V. Schoonmaker IV, with whom, on the brief,
was Wendy Dunne DiChristina, for the appellee
(defendant).
Opinion
KELLER, J. The plaintiff, Lara C. Coury, appeals from
the judgment of the trial court granting a postdissolu-
tion motion filed by the defendant, Steven E. Coury,
wherein he requested that the court modify the unallo-
cated 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 sup-
port award to a monthly alimony award in a lesser
amount without delineating the portion of the unallo-
cated support award that was attributable to child sup-
port and limiting its retroactive modification of that
amount. Second, the court erred by retroactively modi-
fying the supplemental bonus alimony award. The judg-
ment is affirmed in all other respects.
The following facts and procedural history are rele-
vant 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 plain-
tiff. 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 cus-
tody of all three minor children, contingent on her com-
pliance with the conditions set forth in the judgment
pertaining to her mental health, which included a prohi-
bition 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.1 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.2
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 accoun-
tant 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 continu-
ance. 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 pro-
cess requirement promulgated by General Statutes § 52-
50. In response, the defendant contended that the plain-
tiff had not filed a motion to dismiss and had partici-
pated in all of the proceedings on the motion, thereby
effectively waiving any argument concerning improper
service of process. In addressing the issue of retroactiv-
ity, Judge Winslow stated that, according to her per-
sonal 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 grant-
ing 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, 2012.3 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 January 1, 2012, the defendant was
no longer obligated to pay child support to the plaintiff.4
The court then eliminated the supplemental bonus ali-
mony award in its entirety, retroactive to January 1,
2012. Additionally, to encourage the plaintiff’s rehabili-
tation, 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 obliga-
tion. 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 $300,000.5 Specifi-
cally, she asserts that the court improperly based the
order on its finding that a substantial change in circum-
stances 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. Dur-
ing 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, with-
out 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 thresh-
old 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.’’
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 con-
ceded that there have been enough [of a] substantial
change so that we get past that issue.6
‘‘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.
‘‘I appreciate that counsel relied upon the court’s
familiarity with the case and with its circumstances [so]
that they didn’t feel it necessary to go into every detail.
[Y]ou’re well aware that I have some background with
the case from other aspects of it and relied upon me
to incorporate that information, which I have done, and
I have considered all of the criteria of [§] 46b-82, as I
must.’’7 (Footnote added.)
The court proceeded to make explicit findings on the
record relevant to its modified orders. The court found
that the defendant’s gross income was $325,000, that
he expected a bonus of $40,000, and that, although
the plaintiff was not employed, she recently had begun
seeking full-time employment. The court further found
that ‘‘[t]he reduction of alimony is not meant to be
punitive toward [the plaintiff] . . . [b]ut rather to rec-
ognize that [the plaintiff] is in . . . a rehabilitative situ-
ation . . . she’s now in a rehabilitative alimony mode.’’
We begin our analysis by setting forth the relevant
standard of review and legal principles. ‘‘An appellate
court will not disturb a trial court’s orders in domestic
relations cases unless the court has abused its discre-
tion or it is found that it could not reasonably conclude
as it did, based on the facts presented. . . . 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. . . . Thus, unless the trial court applied the
wrong standard of law, its decision is accorded great
deference because the trial court is in an advantageous
position to assess the personal factors so significant in
domestic relations cases . . . . With respect to the fac-
tual predicates for modification of an alimony [or child
support] award, our standard of review is clear. . . .
‘‘Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Our deferential standard of review, however, does
not extend to the court’s interpretation of and applica-
tion of the law to the facts. It is axiomatic that a matter
of law is entitled to plenary review on appeal.’’ (Citation
omitted; internal quotation marks omitted.) Fulton v.
Fulton, 156 Conn. App. 739, 744–45, 116 A.3d 311 (2015).
We apply this deferential standard of review ‘‘because
it reflects the sound policy that the trial court has the
unique opportunity to view the parties and their testi-
mony, and is therefore in the best position to assess
all of the circumstances . . . including such factors as
the demeanor and the attitude of the parties. . . . As
pithily stated by Justice Parskey, in matters of this sort
our role of necessity is not to work the vineyard but
rather to prune the occasional excrescence.’’ (Internal
quotation marks omitted.) Chyung v. Chyung, 86 Conn.
App. 665, 668, 862 A.2d 374 (2004), cert. denied, 273
Conn. 904, 868 A.2d 744 (2005), overruled in part on
other grounds by Tanzman v. Meurer, 309 Conn. 105,
117 n.6, 70 A.3d 13 (2013).
‘‘We previously have explained the specific method
by which a trial court should proceed with a motion
brought pursuant to § 46b-86 (a). When 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 . . . § 46b-82 criteria, make an
order for modification. . . . The court has the author-
ity to issue a modification only if it conforms the order
to the distinct and definite changes in the circumstances
of the parties. . . . Simply put, before the court may
modify an alimony award [or child support order] pursu-
ant to § 46b-86, it must make a threshold finding of a
substantial change in circumstances with respect to
one of the parties. . . .
‘‘The party seeking the modification has the burden
of proving a substantial change in circumstances. . . .
To obtain a modification, the moving party must demon-
strate that circumstances have changed since the last
court order such that it would be unjust or inequitable
to hold either party to it. 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 modifi-
cation of the existing order. In making such an inquiry,
the trial court’s discretion is essential. . . . A conclu-
sion that there has been a substantial change in financial
circumstances justifying a modification of alimony
based only on income is erroneous; rather, the present
overall circumstances of the parties must be compared
with the circumstances existing at the time of the origi-
nal award to determine if there has been substantial
change.’’ (Citations omitted; internal quotation marks
omitted.) O’Donnell v. Bozzuti, 148 Conn. App. 80, 87–
88, 84 A.3d 479 (2014).
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 ali-
mony 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 supple-
mental 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.
87 (‘‘Because the establishment of changed circum-
stances 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; inter-
nal quotation marks omitted.]). ‘‘Modification of an ali-
mony award may be proper where either the needs of
the recipient spouse or the financial ability of the obli-
gor spouse to pay alimony have changed since the origi-
nal 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 modi-
fication of an alimony order. See Cummock v. Cum-
mock, 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 circum-
stances has occurred warranting modification of ali-
mony); 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 deter-
mines 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 bifurca-
tion of the trial court’s modification inquiry was meant
to reflect that, under our statutes and cases, modifica-
tion 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. Gen-
eral 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 pred-
icate 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 modifi-
cation 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 enter-
ing the order eliminating the supplemental bonus ali-
mony 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. 90–91.
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., 91.
‘‘After grounds for modification have been shown
. . . the trial court is entitled to consider all the factors,
as mandated by [§] 46b-82, available in determining the
initial award.’’ Matles v. Matles, 8 Conn. App. 76, 81,
511 A.2d 363 (1986).8 Here, after determining that a
substantial change in circumstances had occurred as a
result of the change in custody of the parties’ minor
children, Judge Winslow explicitly stated that she had
considered the § 46b-82 statutory criteria in entering
the modified alimony orders, including the order elimi-
nating the supplemental bonus alimony award. These
criteria include, inter alia, ‘‘the age, health, station,
occupation, amount and sources of income, earning
capacity, vocational skills, education, employability,
estate and needs of each of the parties and the award,
if any, which the court may make pursuant to section
46b-81, and, in the case of a parent to whom the custody
of minor children has been awarded, the desirability
and feasibility of such parent’s securing employment.’’
General Statutes § 42b-82 (a). A careful review of the
record reveals that the court had sufficient evidence
upon which to determine that the change in sole physi-
cal custody of the parties’ minor children impacted
the employability, earning capacity, and needs of the
plaintiff, as well as the needs of the defendant and his
newly formed household of six persons.
At the time of dissolution, the court, Gordon, J., found
that the plaintiff, although capable of finding some form
of employment, needed time to ‘‘prepare herself for a
good job, one which will sustain her and assist in her
ability the help with the children, because, in the long
run, the responsibilities of both of these people to the
three children they have in this relationship . . . are
massive.’’ It is evident from the record that Judge Gor-
don based her unallocated support award and supple-
mental bonus alimony award, to some degree, on the
plaintiff’s need for time to prepare for gainful, suitable
employment, as well as on her order awarding the plain-
tiff sole physical custody of the parties’ minor children,
which Judge Gordon indicated best served to maintain
the children’s routine, including being cared for by their
stay-at-home mother. Thus, the court’s award of unallo-
cated support was influenced by its determination that
it was in the best interests of the minor children to
remain in the care of their stay-at-home mother for a
period of time.
‘‘While [u]nderlying the concept of time limited ali-
mony is the sound policy that such awards may provide
an incentive for the spouse receiving support to use
diligence in procuring training or skills necessary to
attain self-sufficiency and it is thus generally employed
for rehabilitative purposes, other reasons may also sup-
port this type of alimony award. . . . Such other pur-
poses include providing interim support until a future
event occurs that makes such support less necessary
or unnecessary.’’ (Citation omitted; internal quotation
marks omitted.) Ashton v. Ashton, 31 Conn. App. 736,
744, 627 A.2d 943, cert. denied, 228 Conn. 901, 634 A.2d
295 (1993). Whether it is desirable for the custodial
parent to secure employment because of potential con-
flicts with child care is one circumstance in which the
presence of minor children in the home may properly
affect an alimony award. See Loughlin v. Loughlin, 280
Conn. 632, 654–55, 910 A.2d 963 (2006) (alimony award
may account for desirability of custodial parent secur-
ing employment); see also Wolfburg v. Wolfburg, 27
Conn. App. 396, 401–402, 606 A.2d 48 (1992) (allowing
wife to provide child with her attention while child was
minor constituted valid reason for time limited
alimony).
The plaintiff’s circumstances changed, however, after
her loss of sole physical custody of the minor children
in 2011. She no longer had to consider the conflict
that arises when returning to work is not economically
feasible due to the possibly prohibitive expense of full-
time daycare for three young children.9 The plaintiff
testified that she has a bachelor’s degree from the Uni-
versity of Delaware, a master’s degree in education,
and an event planning certificate. She also testified that
she had been employed previously as a teacher and
that, although she was unemployed at the time of the
hearing, she had begun seeking a teaching position in
early 2013, applied to receive her teaching credentials
in February, 2013, and anticipated gaining a substitute
teaching position in the near future. Although Judge
Gordon had found that the plaintiff was not at a point
where she could seek employment at the time of the
dissolution, Judge Winslow, at the time of the modifica-
tion hearing, indicated that the plaintiff was ‘‘at a point
where she feels she can seek retraining and employment
and . . . that that is in the works, and she’s planning
for the future appropriately.’’ She also testified that she
was planning to move into a less expensive residence.
It is reasonable to infer, on the basis of the evidence
in the record, that the plaintiff’s loss of custody of the
minor children caused her to be more employable than
she was at the time of dissolution because the loss of
custody provided her with additional time to prepare
for and seek gainful employment of the type that might
not have been practical for a single mother with sole
physical custody of three minor children. In fact, she
had taken concrete steps to obtain employment as a
teacher or substitute teacher. Consequently, it is also
reasonable to infer that she had a higher earning capac-
ity after her loss of custody.10 Furthermore, it is reason-
able to infer that her loss of custody factored into her
plan to move into a less expensive residence that was
more suitable to her needs, which decreased upon her
loss of custody.
Moreover, the evidence indicated that the needs of
the defendant also were impacted after he received
sole physical custody of the three minor children. The
defendant testified that the Internal Revenue Service
audited his 2009 and 2010 tax returns in 2011, after the
court had rendered the judgment of dissolution, that
he owed a significant amount in unpaid taxes for the
2009, 2010, and 2011 tax years. Additionally, he
expected a significant tax liability for the 2012 tax year.
He also testified that, in 2012, he had sold an investment
condominium that had been awarded to him in the
judgment of dissolution because he was unable to afford
the condominium’s mortgage payments. Furthermore,
the defendant’s financial affidavit indicated that his lia-
bilities totaled $699,783.16, and that he had a negative
net weekly wage, as his gross weekly wage from princi-
pal employment totaled $6250 and his weekly deduc-
tions totaled $7194.14.
It is not surprising that a comparison of the defen-
dant’s financial affidavits at the time of the dissolution
and at the time of the proceedings on his motion to
modify indicated that his children’s expenses increased
after receiving custody. In addition, it is reasonable to
infer that the expenses reasonably connected to the
assumption of the full-time care of the minor children
negatively impacted the defendant’s ability to pay his
other extensive financial obligations, and that the total-
ity of the circumstances entitled him to additional finan-
cial relief in the form of a reduced alimony obligation.
Specifically, the defendant presented evidence that his
financial circumstances were dire, and the court
acknowledged this, noting, ‘‘I accept, at face value, [the
defendant’s] financial affidavit, with regard to the huge
amounts of debt that he owes.’’ In regard to his dire
financial circumstances, the defendant testified that he
had borrowed approximately $400,000 from his parents
to help support his wife and children. He was solely
responsible for five dependents, there being no other
household income provided by his second wife.
The tax audit that had been completed subjected him
to an approximately $117,000 obligation for back taxes,
excluding penalties and interest, for the years 2009
through 2011, and he was attempting to negotiate a
payment plan with the Internal Revenue Service. His
commuting costs had increased due to his children’s
schedules and the fact that his new employer, unlike his
former employer, did not reimburse him for commuting
expenses. His new employer required that he expend
his own monies to entertain clients, a practice his prior
employer discouraged. His benefits package at his new
place of employment, including health insurance that
cost $15,000 more annually than his previous employer,
which he was required to maintain for the benefit of
the children under the terms of the dissolution judg-
ment, was significantly less generous than his prior
benefits package. He was having difficulty paying the
lease and utilities on the home he rented for himself
and the children in Ridgefield, but the cost of relocating,
the lack of available homes on the rental market in the
children’s Ridgefield school district and the restriction
in the dissolution order as to relocating out of Ridgefield
made a move to less expensive rental premises difficult.
In his new place of employment, his bonus income was
less likely to be as regular as it had been at his former
place of employment. In addition, the defendant
requested that the court consider his need to begin
to set aside some funds for college expenses for the
children, as the dissolution court had reserved jurisdic-
tion for future educational support orders.
Finally, as the court noted, despite the change in
custody, the defendant was not seeking a child support
order from the plaintiff, and the court indicated that it
would not consider entering a child support order in
favor of the defendant because the plaintiff had no
source of income other than her significant modified
gross annual alimony award of $115,200, which was
reduced to $88,000 on May 1, 2013. The defendant’s
modified alimony obligation constituted 35 percent of
his annual gross income of $325,000, as found by the
court, not including bonus income. All of the foregoing
considerations reasonably justified the court’s elimina-
tion of the supplemental bonus alimony award. Essen-
tially, despite being granted some relief, the defendant
still must support himself, his second wife and four
children, as well as address his other burdensome finan-
cial obligations with what remains of his income after
fulfilling his ongoing alimony obligation.
In sum, we conclude that Judge Winslow did not err
by failing to set forth the specific facts she relied on
when entering the order eliminating the supplemental
bonus alimony award. The court had sufficient evidence
before it indicating that the change in the physical cus-
tody of the parties’ minor children impacted the plain-
tiff’s employability, earning capacity, and needs, as well
as the defendant’s needs. After the ground for modifica-
tion had been shown due to the change in custody, the
trial court was entitled to consider all of the factors
mandated by § 46b-82 (a) in determining the defendant’s
modified alimony obligation. It is well established that
a trial court is afforded broad discretion, where a modi-
fication is warranted, in fashioning its new award. ‘‘A
mere difference of opinion or judgment cannot justify
our intervention. Nothing short of a conviction that the
action of the trial court is one which discloses a clear
abuse of discretion can warrant our interference.’’
(Internal quotation marks omitted.) Gallo v. Gallo, 184
Conn. 36, 44–45, 440 A.2d 782 (1981). Consequently, the
trial court did not err in eliminating the supplemental
bonus alimony award.
II
We proceed to address the plaintiff’s claim that the
court erred by retroactively modifying the unallocated
support and supplemental bonus alimony awards. Spe-
cifically, 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 author-
ized 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 unal-
located 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 ali-
mony 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 estab-
lished 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 deter-
mine 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. 745.
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 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 She-
drick 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., 151–52.
Although Shedrick provides us with guidance in
resolving the plaintiff’s claim, it is not directly applica-
ble to the unique facts of this case. Here, unlike in
Shedrick, there was a court order transferring the sole
physical custody of the parties’ three minor children
from the plaintiff to the defendant. The defendant’s
child support obligation to the plaintiff was suspended
by operation of law pursuant to General Statutes § 46b-
22411 when the court transferred sole physical custody
of the parties’ three minor children to him. Extending
Shedrick to the facts of this case, and prohibiting the
court from retroactively modifying the child support
portion of the unallocated support award would conflict
with § 46b-224, which requires modification of a child
support order, or the child support portion of an unallo-
cated support order, from the moment that a court
transfers custody of minor children from a recipient of
child support to a payor of child support. See Tomlin-
son v. Tomlinson, 305 Conn. 539, 552, 557, 46 A.3d
112 (2012) (noting that § 46b-224 operates to require
modification of child support order and holding that
child support portion of unallocated support order was
modifiable despite provision in parties’ separation
agreement prohibiting modification). Therefore, we are
confronted with two statutes that appear to be in con-
flict. Shedrick instructs us that, under § 46b-86 (a), ret-
roactive modification of a child support order is
impermissible unless the service of process require-
ment set forth by § 52-50 is satisfied. Section 46b-224,
however, mandates modification of a child support
order upon a transfer of custody of minor children
from a party receiving child support to a party paying
child support.
To resolve the apparent tension that exists between
these two statutes, we turn to the following well estab-
lished principles of statutory construction. ‘‘The mean-
ing of a statute shall, in the first instance, be ascertained
from the text of the statute itself and its relationship
to other statutes. . . .’’ General Statutes § 1-2z. ‘‘[I]n
cases in which more than one [statutory provision] is
involved, we presume that the legislature intended
[those provisions] to be read together to create a harmo-
nious body of law . . . and we construe the [provi-
sions], if possible, to avoid conflict between them. . . .
It is a well-settled principle of construction that specific
terms covering the given subject matter will prevail
over general language of the same or another statute
which might otherwise prove controlling. . . . Addi-
tionally, [i]f the expressions of legislative will are irrec-
oncilable, the latest prevails . . . .’’ (Citations omitted;
internal quotation marks omitted.) Tomlinson v. Tom-
linson, supra, 305 Conn. 552–53. ‘‘[W]e presume that
laws are enacted in view of existing relevant statutes
. . . [and] we read each statute in a manner that will not
thwart its intended purpose or lead to absurd results.’’
(Internal quotation marks omitted.) Id., 554.
Our Supreme Court previously has analyzed the inter-
play between § 46b-86 (a) and § 46b-224 in Tomlinson
v. Tomlinson, supra, 305 Conn. 539, 541, where the
court addressed the issue of whether a provision in the
parties’ separation agreement that expressly prohibited
modification pursuant to the nonmodification clause of
§ 46b-86 (a) precluded a trial court from modifying the
child support portion of an unallocated support order.
The court noted that ‘‘while § 46b-86 (a) addresses the
modification of child support in general, § 46b-224 cov-
ers the particular effect of a change in custody on preex-
isting child support orders.’’ Id., 550. The court
continued by stating that ‘‘the plain language of § 46b-
224 provides that ‘[w]henever’ (1) the trial court orders
‘a change or transfer of the guardianship or custody of
a child who is the subject of a preexisting support
order,’ and (2) ‘the court makes no finding with respect
to such support order,’ then the custody order ‘shall
operate to . . . [s]uspend the support order . . . or
. . . modify the payee of the support order . . . .’ ’’
(Emphasis added.) Id. ‘‘Use of the term ‘whenever’ indi-
cates that the statute applies every time in which the
two specified conditions are met without other restric-
tion. Similarly, the use of the term ‘shall’ denotes a
mandatory term, suggesting that the suspension or redi-
rection of support occurs by operation of law. . . .
Together, this language signifies that § 46b-224 is
invoked upon satisfaction of the two specified condi-
tions automatically, without reference to any other fac-
tor . . . .’’ (Citation omitted.) Id.
‘‘[Section] 46b-224 clearly addresses the distinct fac-
tual scenario of a change in custody. In contrast, the
language of § 46b-86 (a) is broad enough to encompass
all cases in which a change in the support order is
contemplated. Therefore, the more specific language
of § 46b-224 prevails over the more general terms of
§ 46b-86 (a), even though the latter deals with the same
overall subject matter. Moreover, because the legisla-
ture enacted § 46b-224 after § 46b-86 (a), § 46b-224 rep-
resents the more recent expression of the legislative
will. To the extent that the application of the specific
language of § 46b-224 to suspend or modify a support
order that purports to preclude modification appears
to conflict with the general language of § 46b-86 (a),
we conclude that § 46b-224 must prevail.’’ (Footnote
omitted.) Id., 553.
Although the issue before the court in Tomlinson
involved the nonmodification clause in § 46b-86 (a), its
analysis of § 46b-86 (a) and § 46b-224 nonetheless is
informative as we resolve the plaintiff’s claim. Applying
Tomlinson’s rationale to the present case leads us to
conclude that the retroactive modification language in
§ 46b-86 (a) is general in nature. In contrast, the lan-
guage in § 46b-224, which was enacted after § 46b-86
(a), is specific in nature, and expressly requires modifi-
cation when a court enters an order transferring cus-
tody of minor children from a party receiving child
support to a party paying child support. The modifica-
tion mandated under § 46b-224 is not conditioned on
compliance with any statutory notice requirement.
Therefore, to the extent that § 46b-224 conflicts with the
general provision of § 46b-86 (a) precluding retroactive
modification of child support unless the service of pro-
cess requirement in § 52-50 is satisfied, we conclude
that § 46b-224 must prevail.
Additionally, the plain language of § 46b-224 does not
prohibit the retroactive modification of a child support
order. Although the text of § 46b-224 provides that a
child support payor’s obligation to pay child support is
suspended once he or she is awarded custody of a
minor child from the child support recipient, we find
no practical distinction between a suspension and a
modification for the purposes of applying § 46b-224. As
our Supreme Court noted in Tomlinson, ‘‘[w]e recog-
nize that a ‘[s]uspen[sion]’ and a ‘modif[ication of] the
payee’ of support under § 46b-224 are, in effect, two
different methods of modifying or altering a support
arrangement. See Grosso v. Grosso, 59 Conn. App. 628,
633, 758 A.2d 367 (2000) (given trial court’s broad dis-
cretion in deciding motions for modification, term
‘ ‘‘alter,’’ ’ as used in § 46b-86 [a] is sufficiently broad
to encompass ‘suspension’ of alimony payments), cert.
denied, 254 Conn. 938, 761 A.2d 761 (2000); see also
Eckert v. Eckert, [285 Conn. 687] 695 [941 A.2d 301(2008)] (rejecting any practical distinction between
words ‘modification’ and ‘alteration’ as used in § 46b–86
[a]); Borkowski v. Borkowski, [supra] 228 Conn. [734–
35] (‘[b]ecause a request for termination of alimony is,
in effect, a request for a modification, this court has
treated as identical motions to modify and motions to
terminate brought under § 46b-86 [a]’).’’ Tomlinson v.
Tomlinson, supra, 305 Conn. 551–52. The court pro-
ceeded to state that § 46b-224 permits modification of
child support. Id., 552. Modification, including retroac-
tive modification, of a child support order upon a
change of custody under § 46b-224, comports with the
‘‘default rule that child support follows the children,
unless the trial court has made a finding that another
arrangement is appropriate. This statute indicates that
the legislature viewed the provision of custody as the
premise underlying the receipt of child support pay-
ments; the legislature did not envision that the custo-
dian would be required to pay child support to a person
who does not have custody, as well as (in cases in
which the obligor obtains custody) expend resources
to provide directly for the care and welfare of the child.
In fact, under the Child Support and Arrearage Guide-
lines (guidelines), ‘ ‘‘child support award’’ ’ is defined
as ‘the entire payment obligation of the noncustodial
parent. . . .’ ’’ (Emphasis in original.) Id., 554.
‘‘Although the guidelines set forth a procedure for calcu-
lating both parents’ child support obligation; see [Regs.,
Conn. State Agencies] § 46b-215a-1 (4); the custodial
parent’s portion does not become a part of a court order
because the amount ‘is retained by the custodial parent
and is presumed spent on the children.’ Id., § 46b-215a-
2b (c) (7) (B). Once custody is transferred, however,
there is no longer any basis for the presumption that
the former custodian is spending his or her share of
the support on the children.’’ Tomlinson v. Tomlinson,
supra, 554. For the foregoing reasons, we conclude that
the child support portion of the unallocated support
award was subject to retroactive modification.
The foregoing considerations are inapposite to the
issue of whether the portion of the unallocated support
award attributable to alimony, as well as the supplemen-
tal bonus alimony award, were subject to retroactive
modification.12 Section 46b-224 solely addresses sus-
pension of child support and has no bearing on alimony.
As a result, we follow Shedrick and conclude that, under
§ 46b-86 (a), the court did not have the authority to
retroactively modify the alimony portion of the unallo-
cated support award or the supplemental bonus ali-
mony award due to the defendant’s failure to provide
the plaintiff with proper service of process of his motion
to modify in accordance with § 52-50.13
The defendant raises three arguments in support of
the court’s retroactive modification of the unallocated
support award and supplemental bonus alimony award
that we have not yet addressed at this point of our
analysis. First, he argues that the plaintiff should be
judicially estopped from raising her claim because she
did not object when Judge Winslow stated that, on the
basis of her personal notes that were not part of the
record, there had been a reservation of retroactivity by
the parties. He also notes that the plaintiff did not claim
on appeal that Judge Winslow had committed error in
making that finding. We are not persuaded. Other than
Judge Winslow’s comments noting that there had been
a reservation of retroactivity by the parties on the basis
of her personal notes, the record contains no evidence
of any request by the defendant, let alone an agreement
between the parties, to set a retroactive date. In the
absence of evidence on the record unequivocally show-
ing that the parties agreed to set a retroactive date, we
reject the defendant’s argument.
Second, he argues that the plaintiff waived or should
be equitably estopped from raising her claim because
she failed to move for a dismissal or raise a claim based
on noncompliance with § 52-50 in her prior motions for
a continuance of the hearing on the motion to modify
the supplemental bonus alimony award and the unallo-
cated support award. We are not persuaded. ‘‘Waiver
is the intentional relinquishment of a known right. . . .
Waiver need not be express, but may consist of acts or
conduct from which a waiver may be implied. . . . In
other words, waiver may be inferred from the circum-
stances if it is reasonable to do so. . . . The party
asserting waiver, however, must present evidence such
that the court can infer waiver from the circum-
stances. . . .
‘‘Silence may constitute waiver only where there is
a duty to speak or otherwise take action. . . . Tempo-
rary forbearance does not constitute waiver, and mere
delay does not support a waiver. . . . For an implied
waiver to be found through a party’s actions, intent
must be clearly demonstrated by the surrounding facts
and circumstances, and there can be no waiver of a
right if the person sought to be charged with waiver
says or does nothing inconsistent with an intent to rely
upon such right. . . . Waivable rights are not extin-
guished by inaction alone. Inaction, to be interpreted
as intention of waiver, must generally be accompanied
by other circumstances, such as unreasonable length
of time, evidencing intent. Thus, the failure to object
immediately to a party’s unlawful act does not consti-
tute the waiver of a right to bring legal action.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Carpender v. Sigel, 142 Conn. App. 379, 388, 67 A.3d
1011 (2013). Here, the defendant has failed to point us
to evidence illustrating that the plaintiff waived her
claim concerning retroactivity. Furthermore, the plain-
tiff raised her claim during the proceedings on the
defendant’s motion to modify. She had no duty to raise
that claim prior to those proceedings, and the defendant
has failed to prove that the plaintiff, by deciding not to
raise that claim at an earlier juncture, intended to waive
it. For the foregoing reasons, the defendant’s waiver
argument fails.
Similarly, we are not persuaded by the defendant’s
equitable estoppel argument. ‘‘Under our well-estab-
lished law, any claim of estoppel is predicated on proof
of two essential elements: the party against whom
estoppel is claimed must do or say something calculated
or intended to induce another party to believe that
certain facts exist and to act on that belief; and the
other party must change its position in reliance on those
facts, thereby incurring some injury. . . . It is funda-
mental that a person who claims an estoppel must show
that he has exercised due diligence to know the truth,
and that he not only did not know the true state of
things but also lacked any reasonably available means
of acquiring knowledge. . . . Estoppel rests on the
misleading conduct of one party to the prejudice of the
other. In the absence of prejudice, estoppel does not
exist. . . . The party claiming estoppel . . . has the
burden of proof.’’ (Citations omitted; internal quotation
marks omitted.) Carpender v. Sigel, supra, 142 Conn.
App. 389. Here, the defendant has failed to prove that
the plaintiff purposely failed to raise her claim concern-
ing retroactivity to prejudice him. Furthermore, the
defendant was the only party with the incentive to
ensure retroactivity. He could have served the plaintiff
initially with his motion to modify, or predicated his
agreement to a continuance on the plaintiff’s concurrent
agreement that any order be retroactive to a specific
date and had any such agreement explicitly noted on
the record. He failed to do so. For the foregoing reasons,
the defendant’s equitable estoppel argument also fails.
Last, he argues that he was not required to abide by
the mandate in § 46b-86 (a) that he serve the motion
to modify unallocated support and bonus alimony at
issue in this appeal in accordance with § 52-50. He
claims that he satisfied the notice requirement in § 46b-
86 (a) with respect to the motion to modify unallocated
support and bonus alimony when he served the plaintiff
with his earlier motion to modify custody and visitation
in compliance with § 52-50. According to the defendant,
his motion to modify unallocated support and bonus
alimony complied with § 46b-86 (a) and § 52-50 because
he previously had served the plaintiff with his motion
to modify custody and visitation. He argues this ren-
dered it unnecessary for him to also serve the motion
to modify unallocated support and bonus alimony in
accordance with § 52-50 because the two motions were
somehow linked. Upon our review, we conclude that the
defendant’s argument is meritless because the express
terms of the motion to modify custody and visitation
would not have reasonably notified the plaintiff that
the defendant was likely to file subsequently a motion
to modify the unallocated support and supplemental
bonus alimony awards.
In summation, the trial court erred by retroactively
modifying the unallocated support award to an alimony
award of a lesser amount without delineating that por-
tion of the unallocated support award attributable to
child support and limiting its retroactive reduction to
that amount. The court also erred by retroactively modi-
fying the supplemental bonus alimony award. On
remand, the court must vacate: (1) the portion of the
modified alimony order that required the defendant to
pay to the plaintiff $9600 per month in alimony from
January 1, 2012 to April 30, 2013; and (2) the portion of
the order eliminating the supplemental bonus alimony
award that set the order retroactive to January 1, 2012.
In order to determine the amount of alimony owed
by the defendant to the plaintiff from January 1, 2012
to April 30, 2013, the court must calculate the amount
of the unallocated support award attributable to child
support for that time period and subtract that amount
from the total amount of unallocated support due during
that time period. Tomlinson provides guidance in that
endeavor. In Tomlinson, the trial court had calculated
the amount of the unallocated support attributable to
child support on the basis of the parties’ financial affida-
vits and the child support guidelines in effect at the
time of parties’ dissolution. Tomlinson v. Tomlinson,
supra, 305 Conn. 560. Our Supreme Court addressed
the trial court’s method of calculating the child support
portion of the unallocated support award as follows:
‘‘We note that the trial court improperly may have relied
solely on the presumptive guidelines amount in calculat-
ing the portion [of the unallocated support award]
attributable to child support at the time of dissolution.
Although there is a rebuttable presumption that the
figure arrived at under the guidelines is the proper
amount of child support; see General Statutes § 46b-
215b (a); the trial court at the original dissolution pro-
ceeding . . . had discretion to deviate from such
amount upon consideration of factors, such as the coor-
dination of total family support, shared physical cus-
tody, extraordinary disparity in parental income and
the best interests of the children. Although it is reason-
able to conclude that the trial court found that the
unallocated order provided adequate support . . . it
does not follow necessarily that the child support por-
tion was equivalent to the presumptive guidelines
amount.’’14 Id., 560–61.
The judgment is reversed only as to the retroactive
modification of the supplemental bonus alimony award
and as to the retroactive modification of the unallocated
support award to an alimony award of a lesser amount
without delineating the portion of the unallocated sup-
port award attributable to child support and limiting
the retroactive modification to that amount, and the
case is remanded for further proceedings consistent
with this opinion. The judgment is affirmed in all
other respects.
In this opinion LAVINE, J., concurred.
1
Pursuant to the child support guidelines, the court calculated the pre-
sumptive amount of child support to be $661 per week. As a result of the
unallocated support award, the court deviated from that presumptive amount
and decided not to enter a child support order at the time of the judgment
of dissolution. The court ordered the defendant to pay the plaintiff child
support, however, in accordance with the child support guidelines upon
the termination of the unallocated support award. Furthermore, the court
awarded the plaintiff $1 in alimony annually from June 30, 2019, until June
30, 2028, unless other specified conditions were met that terminated the
award at an earlier date.
2
On May 4, 2012, after the six month period had elapsed, the plaintiff
filed a motion to modify wherein she requested, inter alia, that the court
transfer physical custody of the parties’ minor children back to her. She
alleged that she had maintained her sobriety since November, 2011, and
that it was in the best interests of the children for her to regain physical
custody of them. On December 14, 2012, the court, Winslow, J., denied her
request and the defendant retained sole physical custody of all three minor
children. The plaintiff was granted unsupervised visitation, with the visita-
tion schedule gradually increasing to include overnights on alternating week-
ends, and two weeks of summer vacation. Pursuant to Practice Book § 25-
26 (g), the court ordered the plaintiff to file a request for leave of the court
to initiate any further motions to modify the custody order for a period of
three years to discourage an ‘‘ongoing campaign’’ on the part of the plaintiff
to pursue shared or primary physical custody of the children, and to afford
stability to them.
3
Despite seeking retroactivity to November 28, 2011, the defendant has
not cross appealed claiming that the court erred by retroactively modifying
the unallocated support award and supplemental bonus alimony award to
January 1, 2012. The court apparently chose the date of January 1, 2012
because ‘‘the issue was joined and hearings [were] scheduled in court from,
about, the beginning of the year [in] 2012.’’
4
The defendant did not request an order of child support from the plaintiff,
and the court did not enter such an order, reasoning that the plaintiff was
not employed at the time of the proceedings in the trial court, and the
alimony award was her only source of income.
5
In her appellate brief, the plaintiff does not appear to assert that the
court erred by modifying the unallocated support award. Her sole contention
in regard to the court’s modification of the unallocated support award is
that the court improperly modified it retroactively. To the extent that the
plaintiff claims that the court committed error by modifying the unallocated
support award, we decline to review it due to her failure to brief it adequately.
See Clelford v. Bristol, 150 Conn. App. 229, 233, 90 A.3d 998 (2014).
In addition, the plaintiff mentions, without sufficient factual or legal analy-
sis, that the court failed to ‘‘impose meaningful contempt findings’’ in regard
to the defendant’s failure to comply with the supplemental bonus alimony
order. To the extent that the plaintiff raises a claim regarding contempt
orders entered by the court, we decline to review it due to her failure to
brief it adequately. See id.6
A review of the record reveals that the plaintiff conceded during the
proceedings on the defendant’s motion to modify that a substantial change
in circumstances had occurred warranting a modification of the unallocated
support award, particularly, that portion of the unallocated support award
attributable to child support, which presumptively amounted to $661 per
week under the child support guidelines. See footnote 1 of this opinion.
The plaintiff, however, expressly questioned the propriety of modifying the
supplemental bonus alimony award solely on the basis of the change in the
physical custody of the parties’ three minor children.
7
General Statutes § 46b-82 (a) provides in relevant part: ‘‘At the time of
entering the decree, the Superior Court may order either of the parties to
pay alimony to the other, in addition to or in lieu of an award pursuant to
section 46b-81. . . . In determining whether alimony shall be awarded, and
the duration and amount of the award, the court shall consider the evidence
presented by each party and shall consider the length of the marriage, the
causes for the annulment, dissolution of the marriage or legal separation,
the age, health, station, occupation, amount and sources of income, earning
capacity, vocational skills, education, employability, estate and needs of
each of the parties and the award, if any, which the court may make pursuant
to section 46b-81, and, in the case of a parent to whom the custody of minor
children has been awarded, the desirability and feasibility of such parent’s
securing employment.’’
8
In Matles, the defendant filed a motion to modify an unallocated alimony
and support order of unlimited duration on the ground that the parties’
youngest child had reached the age of majority. Matles v. Matles, supra, 8
Conn. App. 78. The trial court granted the motion and eliminated the unallo-
cated alimony and support order, issuing instead a two year periodic alimony
award that required the defendant to pay the plaintiff nearly half the amount
of the prior unallocated alimony and support order. Id., 79. On appeal,
this court affirmed the judgment of the trial court, concluding that the
modification was warranted upon the parties’ youngest child’s attainment
of the age of majority, and that the court had fashioned the modification
appropriately and in accordance with law. See id., 82.
9
The resolution of this conflict has now shifted to the defendant and his
second wife, who are the primary caretakers of four minor children under
ten years of age.
10
As previously stated, the court’s order modifying the unallocated support
and supplemental bonus alimony awards allowed the plaintiff to collect
$9600 per month in alimony until April 30, 2013, when the alimony was
reduced to $7400 per month, and also included a safe harbor provision,
applicable to the plaintiff, in the amount of $45,000, which further supports
the reasonable inference that her earning capacity increased following her
loss of custody. The modified alimony obligation secured the plaintiff almost
one third of the defendant’s monthly gross income, despite the fact that the
defendant was the sole source of support for seven individuals, including
himself. In addition, the court ordered the defendant to pay the plaintiff
$400 per month on an arrearage based on unpaid bonus alimony.
11
General Statutes § 46b-224 provides: ‘‘Whenever the Probate Court, in
a guardianship matter under chapter 802h, or the Superior Court, in a family
relations matter, as defined in section 46b-1, orders a change or transfer of
the guardianship or custody of a child who is the subject of a preexisting
support order, and the court makes no finding with respect to such support
order, such guardianship or custody order shall operate to: (1) Suspend the
support order if guardianship or custody is transferred to the obligor under
the support order; or (2) modify the payee of the support order to be the
person or entity awarded guardianship or custody of the child by the court,
if such person or entity is other than the obligor under the support order.’’
12
We recognize that an unallocated support order is a single order. Our
Supreme Court in Tomlinson, however, held that a trial court can modify
the child support portion of an unallocated support order that is subject to
a clause prohibiting modification while leaving the alimony portion intact.
Tomlinson v. Tomlinson, supra, 305 Conn. 558. In a similar respect, we
conclude, under the circumstances of this case, that the child support portion
of the unallocated support award is subject to retroactive modification while
the alimony portion is not.
13
The plaintiff also claims that the court’s error in retroactively modifying
the unallocated support award and supplemental bonus alimony award
constituted a violation of her constitutional due process rights. Because we
conclude that the court erred by retroactively modifying the unallocated
support award and the supplemental bonus alimony award on statutory
grounds, we need not reach the plaintiff’s constitutional claim. See State v.
Turner, 91 Conn. App. 17, 24 n.11, 879 A.2d 471 (declining to reach constitu-
tional claim due to resolution of issue on nonconstitutional grounds), cert.
denied, 276 Conn. 910, 886 A.2d 424 (2005).
14
We note that the factual and procedural circumstances of the present
case are not identical to those in Tomlinson. Nonetheless, we cite Tomlinson
to guide the trial court in its calculation of the portion of the unallocated
support award attributable to child support. The court may consider the
presumptive guidelines in effect at the time of dissolution in calculating the
portion of the unallocated support award attributable to child support, but
it is not necessarily bound to apply the presumptive amount should it find
reason to deviate upwards or downwards upon consideration of other
factors.