Mason v. Ford ( 2017 )

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MALCOLM E. MASON v. HONOR A. FORD
(AC 39406)
Keller, Mullins and Harper, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting in part her motion for modification of her child support obliga-
tion to the plaintiff. Although the trial court had granted a modification
of the support order to $0 per week, it also found an arrearage of $2215,
based on the defendant’s failure to pay $174 per week to the plaintiff
for a period of sixteen weeks. On appeal, the defendant claimed that
the trial court abused its discretion in finding the arrearage, and she
challenged the court’s finding concerning the date on which her pay-
ments to the plaintiff had stopped, as well as the court’s finding of the
date that the modification of child support should take retroactive effect.
Held that the trial court’s factual finding that the defendant had not
paid her support obligation, and its implicit finding that the nonpayment
began in November, 2015, were not clearly erroneous, as the court acted
within its discretion when it implicitly credited the plaintiff’s testimony
that the child support payments had ended toward the middle to end
of 2015, over that of the defendant, who testified that the payments
were current as of January, 2016; nevertheless, in determining that the
end date of the arrearage period was in March, 2016, the court abused
its discretion by not complying with the limitations of the statute (§ 46b-
86 [a]) that provides the court with discretion to modify a support order
with retroactive effect to the date on which the motion to modify was
served on the opposing party, as the defendant’s motion for modification
was served on the plaintiff in June, 2016, and, thus, strict compliance
with the limitations of § 46b-86 (a) would have permitted an effective
date no earlier than June, 2016; moreover, given that, during oral argu-
ment before this court, the plaintiff expressed that he had waived his
claim to a certain portion of the arrearage that was apparently omitted
from the assessment due to a computational error of the trial court,
combined with the fact the plaintiff had suggested the March, 2016 date
to the trial court, it was unclear whether the trial court drafted the
modification order to take effect in March, 2016, because it viewed the
suggested date as an implicit waiver of the plaintiff’s claim to the portion
of the arrearage accruing between March and June, 2016, and because
that factual question could not be resolved on the basis of the record
before this court, the matter was remanded to the trial court for a
determination of a new effective date of the arrearage and a recalculation
thereof, including a specific finding as to whether the plaintiff waived
a portion of the arrearage.
Argued March 9—officially released September 26, 2017
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Waterbury, where the defendant filed a counter-
claim; thereafter, the matter was tried to the court,
Hon. Lloyd Cutsumpas, judge trial referee; judgment
dissolving the marriage and granting certain other relief;
subsequently, the court, Nastri, J., denied in part the
defendant’s motion for modification and issued certain
orders; thereafter, the court, Nastri, J., granted in part
the defendant’s motion for modification, and the defen-
dant appealed to this court. Reversed in part; further
proceedings.
Honor A. Ford, self-represented, the appellant
(defendant).
Malcolm E. Mason, self-represented, the appellee
(plaintiff).
Opinion
HARPER, J. The self-represented defendant, Honor
A. Ford, appeals from a postjudgment modification of
a child support order entered subsequent to the dissolu-
tion of her marriage to the self-represented plaintiff,
Malcolm E. Mason. In this appeal, the defendant argues
that the trial court erred in finding a child support
arrearage against her in the amount of $2215, for a
period of sixteen weeks terminating on March 7, 2016.1
For the reasons that follow, we conclude that the matter
must be remanded to the trial court for further proceed-
ings consistent with this decision.
The following facts as found by the court or apparent
from the record are relevant to our resolution of this
appeal. The parties’ marriage was dissolved by the court
on February 7, 2011. At the time of the events giving
rise to this appeal, an order was in place requiring the
defendant to pay child support to the plaintiff in the
amount of $174 per week. On June 3, 2016, the defen-
dant filed a motion to modify her child support obliga-
tion on the ground that she no longer had any income,
and a copy of the motion was served on the plaintiff
by a state marshal on June 14, 2016. At a June 27, 2016
hearing, the parties agreed that the support obligation
should be reduced to $0 per week, and the only dispute
concerned an alleged arrearage, about which both par-
ties testified. The defendant stated her child support
obligation had been current as of January 6, 2016, when
she lost her income. The plaintiff testified that he had
not received payments since the ‘‘middle to end’’ of
2015, though he could not provide a precise date. He
estimated the total amount of the arrearage to be
approximately $5000.
During the hearing, the trial court indicated that it
viewed the task before it as determining to which date
the modification would take retroactive effect, which
in turn would allow the court to determine the amount,
if any, of the arrearage. The plaintiff stipulated that he
would object to a retroactive modification only if the
effective date was earlier than March 7, 2016. The defen-
dant offered no specific date, but seemed to indicate
that the modification date should be linked to an earlier
motion for modification that she had filed on February
2, 2016. See footnote 1 of this opinion. On July 1, 2016,
the trial court issued an order granting a modification
of the support order to $0 per week, effective March
7, 2016. The trial court also found an arrearage of $2215,
based on a failure to pay the required $174 per week
for sixteen weeks.2 The order did not reference any
particular evidence in the record or state the date on
which the last payment was made. No further articula-
tion was requested by the parties. This appeal followed.
On appeal, the defendant argues that the trial court
abused its discretion in finding an arrearage of $2215
based on nonpayment of child support for sixteen
weeks ending on March 7, 2016. She asserts that
because she had no income, the trial court should not
have required her to make back payments. She also
appears to argue that the arrearage period cutoff date
should have been based on the date she lost her income,
January 6, 2016, on which date she claims to have been
current on her support obligation. This argument would
result in no arrearage. In response, the plaintiff argues
that the evidence supports the trial court’s findings
and that it did not abuse its discretion in assessing
an arrearage.
‘‘The well settled standard of review in domestic rela-
tions cases is that [an appellate court] will not disturb
trial court orders unless the trial court has abused its
legal discretion or its findings have no reasonable basis
in the facts.’’ (Internal quotation marks omitted.)
McKeon v. Lennon, 321 Conn. 323, 341, 138 A.3d 242
(2016). ‘‘Trial courts have broad discretion in deciding
motions for modification.’’ (Internal quotation marks
omitted.) Robinson v. Robinson, 172 Conn. App. 393,
400, 160 A.3d 376 (2017). ‘‘In determining whether a
trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action. . . . [T]o
the extent that the trial court has made findings of fact,
our review is limited to deciding whether those findings
were clearly erroneous.’’ (Citation omitted; internal
quotation marks omitted.) Id. ‘‘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 mis-
take has been committed.’’ (Internal quotation marks
omitted.) Sousa v. Sousa, 173 Conn. App. 755, 768, 164
A.3d 702 (2017). To the extent that this appeal chal-
lenges the trial court’s application of a statute in the
course of modifying the support order, the claim pre-
sents a question of law over which we exercise plenary
review. See Hornung v. Hornung, 323 Conn. 144, 151,
146 A.3d 912 (2016).
In the present appeal, the parties agree that reducing
the defendant’s support obligation to $0 per week was
appropriate under the circumstances of this case. The
defendant challenges only the trial court’s assessment
of an arrearage under the previous order. The calcula-
tion of an arrearage involves both questions of fact and
law. The factual determinations include whether the
obligor failed to make payments, the date upon which
payments stopped, and the date upon which payments
resumed or, if the nonpayment continued through the
date of modification, the date upon which the support
obligation became nullified by the court’s modification
of the order. It is axiomatic that the effective date of the
modification in the latter instance cuts off any period
in which an arrearage may accrue under the order modi-
fied. When the end date of the arrearage period is deter-
mined by the court’s modification, the issue may involve
a question of law in the court’s application of General
Statutes § 46b-86 (a), which allows the court the discre-
tion to modify a support order with retroactive effect
to the date upon which the motion to modify was served
upon the opposing party. As noted previously, we
review these factual findings to determine whether
those findings were clearly erroneous and our review
of the court’s legal determinations is plenary.
We begin by setting forth the law concerning the
assessment of an arrearage upon the obligor’s motion
to modify a support order. ‘‘[A]n order entered by a
court with proper jurisdiction must be obeyed by the
parties until it is reversed [or otherwise modified] by
orderly and proper proceedings.’’ (Internal quotation
marks omitted.) Mulholland v. Mulholland, 229 Conn.
643, 649, 643 A.2d 246 (1994). Upon a motion for modifi-
cation of a support order, the trial court has the author-
ity to order a party moving for modification to pay any
arrearage then existing when the motion is heard. See
Pace v. Pace, 134 Conn. App. 212, 220–22, 39 A.3d 756
(2012) (affirming trial court’s decision denying motion
to modify and ordering movant to pay arrearage despite
movant’s claimed financial hardship); see also Practice
Book § 25-26 (requiring trial court to consider existence
and causes of arrearage upon motion to modify). The
effective date of modification also serves to cut off
the period during which any arrearage under the prior
support order may accrue.
The trial court’s discretion to give a modification
retroactive effect is not unlimited. Its authority is
expressly limited by § 46b-86 (a), which provides in
relevant part that ‘‘[n]o order for periodic payment of
. . . support may be subject to retroactive modifica-
tion, except that the court may order modification with
respect to any period during which there is a pending
motion for modification . . . from the date of service
of notice of such pending motion upon the opposing
party . . . .’’ See also Hane v. Hane, 158 Conn. App.
167, 173, 118 A.3d 685 (2015) (recognizing General
Assembly abrogated rule against retroactive modifica-
tion, creating limited authority to modify to date of
service).
In the present appeal, we conclude that the trial
court’s finding that the defendant had not paid her sup-
port obligation, and its implicit finding that that nonpay-
ment began on or about November 16, 2015, are not
clearly erroneous. The trial court found a sixteen week
arrearage terminating on March 7, 2016, which neces-
sarily implies a finding that payments stopped on or
about November 16, 2015. The sparse record on this
issue consists of limited testimony from the parties.
The plaintiff testified that payments ceased toward the
‘‘middle to end’’ of 2015, and the defendant testified
that her payments were current as of January 6, 2016.
The trial court made no credibility determinations on
the record; its findings, however, indicate that it neces-
sarily must have credited the testimony of the plaintiff
over that of the defendant. See Young v. Commissioner
of Correction, 104 Conn. App. 188, 190 n.1, 932 A.2d
467 (2007) (when decision lacks specificity, Appellate
Court presumes trial court made necessary findings
and determinations supported by the record on which
judgment is predicated), cert. denied, 285 Conn. 907,
942 A.2d 416 (2008); Champagne v. Champagne, 85
Conn. App. 872, 879, 859 A.2d 942 (2004) (‘‘[i]n the
absence of an articulation, we presume that the trial
court acted properly’’ [internal quotation marks omit-
ted]); Zadravecz v. Zadravecz, 39 Conn. App. 28, 32,
664 A.2d 303 (1995) (same). The November 16, 2015
commencement date is supported by the plaintiff’s testi-
mony, and indicates that the trial court did not credit
the defendant’s testimony. We cannot conclude that
these factual findings are clearly erroneous.
Turning to the trial court’s determination of the end
date of the arrearage period, the record reveals that
the trial court did not comply with the limitations of
§ 46b-86 (a). As previously noted, this statute provides
the court discretion to modify a support order with
retroactive effect to the date upon which the motion
to modify was served upon the opposing party. In this
case, the trial court ordered the modification to take
effect retroactively on March 7, 2016; however, the
defendant’s motion to modify was not served on the
plaintiff until June 14, 2016. Strict compliance with the
limitations of § 46b-86 (a) would have permitted an
effective date no earlier than June 14, 2016. We conclude
that such noncompliance with a statutory restraint on
the trial court’s authority constitutes an abuse of legal
discretion and requires reversal.
Finally, we note that the record in this matter presents
the unusual situation in which the court’s error was
suggested to the court by the party to whose detriment
this mistake accrues. As noted in footnote 2 of this
opinion, the plaintiff, unprompted, expressly stated at
oral argument before this court that he waived his claim
to a certain portion of the arrearage that was apparently
omitted from the arrearage assessment due to a compu-
tational error of the trial court. Given the plaintiff’s
interest in waiving portions of the arrearage, combined
with his suggestion of the March 7, 2016 date, a question
is raised of whether the improper effective date indi-
cates that the court viewed the suggested date as an
implicit waiver of the plaintiff’s claim to the portion of
the arrearage accruing between March 7 and June 14,
2016, and simply drafted the modification order as
though it took effect on March 7, 2016. It is not possible
to resolve this question on the record before us pres-
ently, and the question of ‘‘whether a waiver has
occurred is a factual question for the trier.’’ (Internal
quotation marks omitted.) Shelton v. Olowosoyo, 125
Conn. App. 286, 294, 10 A.3d 45 (2010). Therefore, on
remand, the trial court may not order an effective date
earlier than June 14, 2016. Moreover, in the event the
trial court curtails the arrearage based on a finding that
the plaintiff waived some portion of the arrearage, we
require that the trial court’s order clearly articulate
this finding.
For the foregoing reasons, we conclude that the trial
court erred in setting the effective date for the modifica-
tion earlier than June 14, 2016. We remand this matter
to the trial court.
The judgment is reversed only as to the effective date
of the modification order and the calculation of the
arrearage, and the case is remanded for further proceed-
ings consistent with this opinion. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
Both parties also briefed claims related to an order of the trial court
issued on March 7, 2016, which decided a motion to modify filed by the
defendant on February 2, 2016. However, no appeal from the March 7, 2016
order was timely brought and we will not consider these claims. See Alliance
Partners, Inc. v. Voltarc Technologies, Inc., 263 Conn. 204, 212–13, 820 A.2d
224 (2003) (Appellate Court has broad authority to manage docket, including
discretion to decline review of untimely claims).
2
At oral argument before this court, both parties agreed that the trial court
made a computational error in calculating the arrearage to the advantage
of the defendant. The correct amount should be $2784, calculated as $174
per week for sixteen weeks. In his argument before this court, the plaintiff
noted the error was to his disadvantage and expressly waived any claim he
might have on the $569 difference. Because, as will be explained herein,
we remand this matter for further proceedings, we need not address whether
the plaintiff’s express waiver before this court renders this computational
error moot.