Coury v. Coury ( 2015 )

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COURY v. COURY—DISSENT
SHELDON, J., concurring in part and dissenting in
part. I agree with part II of the majority’s decision
regarding the nonretroactivity of certain of the modified
financial orders issued by the trial court. I part company
with the majority, however, as to its affirmance of the
trial court’s judgment prospectively eliminating the sup-
plemental bonus alimony award because I do not
believe that that particular modification was in any
way justified by the only change in circumstances upon
which it was predicated, to wit: the change in physical
custody of the parties’ minor children. Concluding, as
I do, that the change in the children’s custody did not
justify the elimination of the supplemental bonus ali-
mony award because it was not shown to have had any
relevant impact, supportive of the modification, upon
at least one of the limited statutory factors that govern
the making and modification of alimony awards,1 I
respectfully dissent from part I of the majority’s
decision.
Alimony arises from ‘‘the obligation of support that
spouses assume toward each other by virtue of the
marriage.’’ (Internal quotation marks omitted.) Wie-
gand v. Wiegand, 129 Conn. App. 526, 535, 21 A.3d 489(2011). ‘‘The generally accepted purpose of . . . ali-
mony is to enable a spouse who is disadvantaged
through divorce to enjoy a standard of living commensu-
rate with the standard of living during marriage.’’ (Inter-
nal quotation marks omitted.) Brody v. Brody, 315
Conn. 300, 313, 105 A.3d 887 (2015).
‘‘[General Statutes] § 46b-86 (a) broadly provides that
an alimony award may be modified by the court upon
a showing of a substantial change in the circumstances
of either party and that a trial court’s discretion is essen-
tial when it determines whether a modification is justi-
fied. . . . The trial court’s discretion to modify an
award, however, is not unlimited. Rather, the court’s
discretion must be cabined by the public policies
underlying the statutes governing dissolution of mar-
riage and by the general purposes of alimony
awards. . . .
‘‘[T]he trial court may consider factors such as the
length of the marriage, the cause of the divorce, and
the age, station, vocational skills and employability of
the parties—factors that were presumptively consid-
ered by the [dissolution] court [pursuant to General
Statutes § 46b-82] in determining the purpose and
amount of the initial alimony award and that have not
changed since that time—only to the extent that the
factors shed light on the intent of the initial award.
They should not be considered as reasons for changing
the purpose of the initial award.’’ (Citation omitted;
emphasis altered; footnote omitted.) Dan v. Dan, 315
Conn. 1, 16–17, 105 A.3d 118 (2014).
‘‘Once 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 ques-
tion 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 substan-
tial 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 cir-
cumstances establishes the threshold predicate for the
trial court’s ability to entertain a motion for modifica-
tion, however, it also naturally comes into play in the
trial court’s structuring of the modification orders.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Borkowski v. Borkowski, 228 Conn.
729, 737, 638 A.2d 1060 (1994).
‘‘To obtain a modification, the moving party must
demonstrate that circumstances have changed since
the last court order such that it would be unjust or
inequitable to hold either party to [that order]. Because
the establishment of changed circumstances is a condi-
tion precedent to a party’s relief, it is pertinent for the
trial court to inquire as to what, if any, new circum-
stance warrants a modification of the existing order.
In making such an inquiry, the trial court’s discretion
is essential. The power of the trial court to modify the
existing order does not, however, include the power to
retry issues already decided . . . or to allow the par-
ties to use a motion to modify as an appeal. . . .
Rather, the trial court’s discretion includes only the
power to adapt the order to some distinct and definite
change in the circumstances or conditions of the par-
ties.’’ (Citations omitted; emphasis added.) Id., 737-38.
Under the foregoing authorities, it is apparent that
the substantial change in circumstances found by the
trial court as a condition precedent to the modification
of an alimony award necessarily limits the discretion
of the court in determining whether, and, if so, how,
the award should be modified. Because a modification
of alimony requires a reconsideration of the parties’
obligations of support to one another in light of an
alleged substantial change in the circumstances of one
or both of them, and those obligations are governed by
the factors set forth in § 46b-82 (a), there must at least
be some relationship between the substantial change
in circumstances, as pleaded and proved, and at least
one of the statutorily enumerated alimony factors.
Absent such a relationship, the requisite finding of a
substantial change in circumstances as a condition
precedent to the modification of alimony would be
meaningless.
Here, the trial court determined at the very outset of
the modification hearing that there had been a substan-
tial change in the circumstances of the parties because
physical custody of their minor children had been trans-
ferred from the plaintiff to the defendant. In so ruling,
the trial court made no findings as to the relationship
between the change in physical custody and any of the
statutory factors governing the making and modifica-
tion of alimony awards, nor did it explain why, in light
of that change in circumstances, the continuation of
the supplemental bonus alimony award would be unjust
or inequitable. This, I submit, is because there was no
basis in the record for making any such suggestion.
It is true, of course, that the trial court correctly
determined that, as a result of the change in physical
custody of the minor children, the unallocated total
family support order initially entered by the dissolution
court was no longer necessary or appropriate. That
order had to be changed in order to separate its child
support and spousal support components from one
another, so that the now unnecessary child support
component could be eliminated. See Tomlinson v. Tom-
linson, 305 Conn. 539, 558, 46 A.3d 112 (2012). Once
that was accomplished, however, the remaining, spou-
sal support component of the unallocated family sup-
port order should simply have been replaced by a new,
freestanding order of periodic alimony, which would
remain in effect thereafter for as long as the dissolution
judgment called for the payment of alimony, unless and
until it was modified, as otherwise provided by law.
Thus, although the spousal support component of the
total family support order should have been changed
in title and description, it should not have been changed
in substance, as to the amount due and payable to
the plaintiff for spousal support, absent a substantial
change in circumstances so warranting.
The trial court, however, confused or conflated its
authority to change the form of the dissolution court’s
initial order of spousal support from a component of
the initial total family support order to a freestanding
order of periodic alimony with its statutory authority
to modify that order in substance due to a substantial
change in circumstances pursuant to § 46b-82. As a
result, it also treated the change in physical custody of
the parties’ minor children as a basis for also permitting
the modification, in substance, of the amount of spousal
support due under the dissolution court’s initial finan-
cial orders without considering the impact of that
change in circumstances upon any of the statutory fac-
tors governing awards of alimony, as set forth in § 46b-
82, much less determining whether, in light of that
change in circumstances, it would be unjust or inequita-
ble to leave the substance of that initial spousal support
order unchanged.
A change in physical custody of a divorced couple’s
minor children is not a statutorily enumerated factor
that a court must consider in determining whether or
not to modify an award of alimony owed by one of
them to the other under their judgment of dissolution.
Thus, such a change in circumstances does not, stand-
ing alone, authorize the modification of an existing ali-
mony order. In order for such a change in circumstances
to constitute a substantial change in circumstances of
the kind required as a statutory condition precedent to
the modification of an alimony award, it must be shown
to have had some relevant impact, supportive of the
subject modification, upon at least one of the statutory
factors governing the making and modification of ali-
mony awards. The party moving for modification of an
alimony award on that basis bears the burden of proving
that the change in custody not only relates to and
impacts one or more the statutory factors governing
alimony awards, but does so in such a way as to make
the continuation of the existing order unjust or inequita-
ble. See Eckert v. Eckert, 285 Conn. 687, 696, 941 A.2d
301 (2008).
In this case, however, the trial court’s judgment modi-
fying the initial financial orders by prospectively elimi-
nating the supplemental bonus alimony award was
entirely untethered to the change in physical custody
of the parties’ minor children, which was the only
change in circumstances upon which it was
expressly predicated.
The majority attempts to fill the void in the trial
court’s analysis by stating: ‘‘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.’’2 This conclu-
sion is troubling for two reasons.3 First, in coming to
this conclusion, the majority makes several findings of
fact, which are undisputedly beyond the power of this
court to make. See Weinstein v. Weinstein, 104 Conn.
App. 482, 494, 934 A.2d 306 (2007) (‘‘[i]f we were to
find from the record that the facts presented to the court
established a substantial change of circumstances, we
would be engaging in fact-finding, a function not the
province of this court’’), cert. denied, 285 Conn. 911,
943 A.2d 472 (2008). In the absence of the requisite
finding by the trial court of a substantial change in
circumstances, it simply cannot be found that the trial
court’s order was adapted to some distinct and definite
change in the circumstances or conditions of the par-
ties. Any modification ordered on a different basis
would result, for all practical purposes, from the retrial
of the initial alimony award,4 which is strictly pro-
hibited.
Second, the defendant never claimed, either in his
motion to modify5 or in his presentation at the modifica-
tion hearing, that his request for the elimination of the
supplemental bonus alimony award should be granted
due to any change in the plaintiff’s employability, earn-
ing capacity, or change in her needs, resulting from the
change in custody of the minor children or otherwise.6
Instead, in his motion to modify, the defendant
requested only that the court ‘‘eliminate the requirement
that 30 percent of any bonus be paid to the plaintiff
so that all future bonuses may be paid to reduce the
defendant’s outstanding debt to the IRS and other credi-
tors.’’7 The defendant never claimed any connection
between the change in custody of the parties’ children
and his IRS debt or any of the other financial circum-
stances that he claimed to have contributed to his self-
described ‘‘financial collapse.’’ Thus, in suggesting that
the court may properly have based its elimination of
the supplemental bonus alimony award upon changes in
the plaintiff’s employability, earning capacity or needs
resulting from the change in physical custody of the
children, or upon the distressed state of the defendant’s
finances resulting from that transfer of custody, the
majority is assuming not only the role of the trial court,
which never made or was asked to make such a finding,
but that of defense counsel as well.8
Because I do not believe that the substantial change
in circumstances found by the trial court, which was
based solely upon the change in physical custody of
the parties’ children, had any proven impact upon any
of the statutory factors governing the making or modifi-
cation of alimony awards, let alone an impact of the sort
that would render the continuation of the supplemental
bonus alimony award unjust or inequitable, I do not
believe that the court ‘‘adapt[ed] the order [eliminating
that award] to some distinct and definite change in the
circumstances or conditions of the parties.’’ (Emphasis
added.) Borkowski v. Borkowski, supra, 228 Conn. 738.
I conclude, on this basis, that the trial court abused
its discretion by eliminating the supplemental bonus
alimony, and thus I dissent from that portion of the
majority’s decision that affirms its elimination.
1
I also believe that the trial court erred in modifying the alimony compo-
nent of the unallocated family support order. Because the plaintiff has not
challenged that modification, the elimination of the bonus alimony award
is the only alimony order that is subject to our review.
2
The majority suggests that the defendant’s obligation to support his
second wife and a child born of that marriage should be a consideration in
modifying his alimony obligation to the plaintiff. I am not aware of any law
that supports the propriety of considering such a factor, nor apparently was
the trial court, which expressly rejected such an argument as a basis for
granting any of the requested modifications.
3
The majority further states: ‘‘Moreover, the evidence indicated that the
needs of the defendant also were impacted after he received sole physical
custody of the three minor children.’’ In support of that statement, the
majority cites to the defendant’s debt to the Internal Revenue Service and
the sale of an investment condominium that was awarded to him at the
time of dissolution. The trial court did not make any findings as to those
liabilities, either as to whether there had been a change in those debts that
could constitute a substantial change of circumstances for purposes of a
modification of the alimony order, or how, if at all, they were impacted by
the change in physical custody of the children. Neither does the majority.
It is difficult to fathom how the change in custody of the children possibly
could have caused it or contributed to those liabilities. It is especially difficult
to understand in light of the fact that the defendant did not actually make
any such claim.
In upholding the trial court’s elimination of the supplemental bonus ali-
mony award, the majority, not the trial court, engages in a comparison of
the defendant’s financial affidavits at the time of dissolution and the time
of the modification hearing. The majority finds that that comparison ‘‘indi-
cated that [the] children’s expenses increased after receiving custody.’’ The
trial court, as the sole arbiter of the facts, did not make any findings to
that effect.
The majority makes many additional factual findings concerning the defen-
dant’s postdissolution financial situation and draws inferences from them
in an effort to rationalize the trial court’s elimination of the supplemental
bonus alimony award. The common features of each of these findings are
that none was claimed by the defendant, nor found by the trial court, to
have resulted from the change in custody of the parties’ minor children,
upon which the modification of alimony was predicated.
4
Indeed, as noted by the majority, the trial court expressly found that
the plaintiff had no income at the time of the modification hearing other
than the alimony that she was receiving from the defendant. If the plaintiff
did have income at that time, the court would have been required by law
to order her to pay child support to the defendant. The court likewise would
have been required to order the plaintiff to pay child support to the defendant
if it had imputed an earning capacity to her, in addition to the requirement
that it determine the specific amount of her earning capacity. See Tanzman
v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013). The record is devoid of
any claim, argument or evidence that the plaintiff’s employability, earning
capacity or needs changed as a result of the change in physical custody of
the minor children. The trial court thus properly did not base its elimination
of the supplemental bonus alimony award on those unestablished factors.
5
Practice Book § 25-26 (e) provides in relevant part: ‘‘Each motion for
modification shall state the specific factual and legal basis for the claimed
modification . . . .’’
6
Because he did not base his request for modification on these factors,
he submitted no evidence relating to them. This deficiency obviously also
implicates the plaintiff’s lack of notice as to any such claims.
7
The dissolution court ordered the defendant to indemnify the plaintiff
and hold her harmless for any liability associated with state or federal tax
returns that had been filed prior to the date of judgment. Notwithstanding
this determination, the defendant asked the trial court to eliminate the
supplemental alimony award, in part, so that he could pay that very debt.
The defendant’s request for a modification of the dissolution court’s alimony
order so he could pay off a debt for which the dissolution court had expressly
held him solely responsible is puzzling. Such a request is a further demonstra-
tion that the defendant was using the motion to modify as an opportunity
to retry issues already decided against him by the dissolution court.
8
I further note that the defendant did not even respond to this claim in
his brief to this court.