Malpeso v. Malpeso , 165 Conn. App. 151 ( 2016 )

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CHARLOTTE MALPESO v. PASQUALE MALPESO
(AC 36622)
(AC 37203)
DiPentima, C. J., and Beach and Sheldon, Js.
Argued December 14, 2015—officially released May 3, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Schofield, J.)
Barbara M. Schellenberg, with whom were Richard
L. Albrecht and, on the brief, Bruce L. Levin, for the
appellant-appellee (defendant).
Kevin F. Collins, for the appellee-appellant
(plaintiff).
Opinion
DiPENTIMA, C. J. In this postdissolution marital mat-
ter, the defendant, Pasquale Malpeso, appeals from the
judgment of the trial court. Although the court granted
his motion to modify the original unallocated alimony
and child support that was entered as part of the parties’
judgment of dissolution, the defendant contends that
the court (1) applied the wrong legal standard in calcu-
lating the child support component of the unallocated
alimony and child support order, (2) determined the
wrong effective date of the modification, (3) errone-
ously concluded that a lien could be placed on the
defendant’s assets for him to pay his alimony obligation,
and (4) incorrectly stated that it lacked jurisdiction to
terminate his obligation to pay alimony. The defendant
further claims that the trial court abused its discretion
in finding him in contempt and ordering him to pay the
plaintiff’s counsel fees and costs.1 We reverse, in part,
and affirm, in part, the judgment of the trial court.2
We set forth the following facts and procedural his-
tory pertinent to this appeal. The plaintiff, Charlotte
Malpeso, married the defendant on August 23, 1986. On
June 25, 2004, the marriage was dissolved. At that time,
the parties had three minor children: a son, born in
1988; and twin daughters, born in 1993. The judgment
of dissolution incorporated the parties’ separation
agreement (agreement) that provided, inter alia, that
the defendant would pay the plaintiff $20,000 per month
in unallocated alimony and child support.3 The
agreement also contained a clause limiting the circum-
stances in which the amount and term of alimony could
be modified.4 The judgment of dissolution was opened
and modified once in December, 2005, to allow the
defendant to purchase certain property from the
plaintiff.
The complicated procedural history of this case
began on May 25, 2011, when the defendant filed a
motion to modify child support. In response, on June 17,
2011, the plaintiff filed an objection to the defendant’s
motion. In August, 2011, the defendant amended his
motion not only to modify child support, but also to
modify alimony based on the following grounds: (1) the
parties’ daughters had reached the age of majority and
had graduated from high school; and (2) the economy
of New York had undergone a substantial change as a
result of a catastrophic event. The court, Wenzel, J.,
ruled that the only permissible ground for modification,
pursuant to paragraph 3.2 of the agreement, was the
claim alleging a substantial change in the economy of
New York. The court sustained the plaintiff’s objection
to the motion on all other grounds upon which it was
based. The defendant appealed from that ruling on Sep-
tember 6, 2011.
While the appeal was pending, the parties’ litigation
continued in the trial court. The seeds of this appeal
were sown on September 13, 2011, when the defendant
filed a motion for contempt, alleging that the plaintiff
had ‘‘refuse[d] to provide reasonable support to and
for the parties’ children for support expenses such as
clothing, necessities . . . personal transportation . . .
grooming, etc.’’ Four months later, on January 25, 2012,
the defendant filed another motion to modify alimony
and child support. The second motion to modify was
based on three grounds: (1) the parties’ three children
had reached the age of majority and were no longer
residing with the plaintiff; (2) the defendant was paying
for the adult children’s college expenses;5 and (3) the
defendant was experiencing a ‘‘downturn in [his] finan-
cial circumstances.’’6 The defendant asked the court,
on those grounds, either to reduce or to terminate his
financial ‘‘obligations to the plaintiff . . . .’’ The plain-
tiff was served with the second motion to modify on
February 9, 2012. The plaintiff objected to this motion
and, on June 14, 2012, filed a motion for contempt,
alleging, inter alia, that the defendant was nine months
(October, 2011 through June, 2012) in arrears in making
his $20,000 monthly payments.
The court, Schofield, J., held multiple hearings
between October and December of 2012 to resolve the
following motions: (1) the defendant’s motion for con-
tempt filed on September 13, 2011; (2) the defendant’s
motion to modify alimony and child support filed on
January 25, 2012; and (3) the plaintiff’s motion for con-
tempt filed on June 14, 2012. Before Judge Schofield
ruled on the motions, this court published its decision
reversing Judge Wenzel’s ruling.7 In that year, following
this court’s decision, the court, Schofield, J., issued
three decisions addressing these motions.
With respect to the first decision, the court’s first
memorandum of decision was issued on July 16, 2013,
addressing all three motions before the court. In that
decision, the court made the following findings: (1) the
parties’ three children had reached the age of majority;
(2) the children were no longer living with either parent;
(3) the defendant, pursuant to the agreement, was pay-
ing for the three children’s college expenses; and (4)
the alleged downturn in the defendant’s ‘‘financial cir-
cumstances [was] speculative, and uncorroborated,
indeed contradicted, by [the evidence presented].’’ As
to the third finding, the court credited the defendant’s
testimony that when he started paying for the children’s
college expenses, he believed that the amount of his
unallocated alimony and support payment would be
reduced. Nonetheless, the court noted that the
agreement did not provide for such a reduction; thus,
it ruled that the defendant could not ‘‘now claim that
the costs of college expenses are a basis for modifica-
tion.’’ The court, however, also inserted a footnote stat-
ing that, ‘‘[u]nless, of course, those college expenses
substantially changed [the defendant’s] financial cir-
cumstances.’’
The court granted the defendant’s second motion to
modify alimony and child support that had been filed
on January 25, 2012. Specifically, because ‘‘the children
of the marriage [had] reached the age of majority,’’ the
court applied the child support and arrearage guidelines
(guidelines), without specifying the effective year of
those guidelines, to fashion a new financial order. Also,
by apparently, but not explicitly, relying on the parties’
current financial affidavits, the court calculated the par-
ties’ combined net weekly income to be $16,850, which,
pursuant to the undated guidelines and a ‘‘declining
factor, given the income of the parties,’’ resulted in a
presumptive child support amount of $8862 per month.
Accordingly, the court converted the unallocated ali-
mony and child support into a periodic alimony order
in the amount of $12,000 per month, which was reached
by reducing the defendant’s $20,000 monthly obligation
by $8000.8 The modified alimony order was to become
effective on July 16, 2013, the date of the court’s
decision.
As to the parties’ respective motions for contempt,
the court ruled in favor of the plaintiff on each. On
the defendant’s motion for contempt, it found that the
plaintiff was not in contempt. On the plaintiff’s motion,
it found that the defendant was ‘‘in wilful and intentional
violation of the court orders.’’ Upon finding the defen-
dant in contempt, the court ordered him to pay the
plaintiff $440,000 in arrears for failing to meet his
$20,000 per month obligation for the twenty-two months
from October, 2011, through July, 2013. Additionally,
the court ordered the defendant to pay the plaintiff’s
attorney’s fees and costs, totaling $41,016.18. In
response to this decision, both parties filed several
motions. The plaintiff filed a ‘‘motion to clarify and/
or articulate’’ and a ‘‘motion to reopen and reargue
decision.’’ The defendant also filed a motion to reargue.
With respect to the second decision, after the court
held a hearing on the plaintiff’s motion to clarify and/
or articulate and the defendant’s motion to reargue in
October, 2013, it issued its second memorandum of
decision on February 18, 2014. The court clarified its
prior calculation of the presumptive child support
amount, explaining that because the parties’ combined
net weekly income was $17,039.309 and applying the
guidelines with ‘‘a presumptive declining factor,’’ the
resulting presumptive child support amount for three
children was $2061 per week ($687 per child) or $8862
per month.10 Accordingly, the court ordered the ‘‘unallo-
cated alimony to be reduced by the sum of $2061 per
week retroactive to the [date of] service of the motion
for modification.’’ In other words, the court reduced the
defendant’s monthly financial obligation to the plaintiff
from $20,000 to $11,138 per month, retroactive to the
date of service.11 Then the court stated to the contrary
without further elaboration: ‘‘In its [July, 2013 memo-
randum of decision], the court incorrectly declined to
award retroactivity to the date of majority. The court
now corrects that error.’’ The court did not specify
which date of majority it intended to use, i.e., the date
of majority of the son or that of the daughters.
The court’s second memorandum of decision also
explained other aspects of its first order. Pertinent to
this appeal, the court changed its stance on the issue
of college expenses. The court, ‘‘upon review of the
[agreement] and its provisions for modification,’’ con-
cluded that college expenses could be a ‘‘basis for modi-
fication.’’ Therefore, the court concluded that $32,000
per month of college expenses constituted ‘‘a substan-
tial change in circumstances justifying a reexamination
of the parties’ financial circumstances pursuant to [Gen-
eral Statutes § 46b-82] and Borkowski v. Borkowski,
228 Conn. 729, 739, 638 A.2d 1060 (1994).’’ The court,
then, concluded that ‘‘alimony payments should not
terminate [but will] . . . be adjusted by a reduction in
child support.’’ The court iterated that the defendant’s
monthly financial obligation to the plaintiff would be
set at $11,138 per month. See footnote 11 of this opinion.
The court also addressed its previous contempt
order. It asserted that the defendant was in contempt
but adjusted its previous ruling as follows: ‘‘[T]he court
orders that the arrearage which must be recalculated to
reflect the current arrearage accruing since December,
2012, as modified with retroactivity.’’ The court did not
elaborate any further, but it did affirm its previous order
that the defendant pay the plaintiff’s attorney’s fees and
costs. In response to the court’s second memorandum
of decision, the plaintiff filed a motion to reopen, clarify
and reargue, to which the defendant objected.
With respect to the third decision, on August 29, 2014,
after a hearing, the court issued a third memorandum
on the plaintiff’s motion to reopen. The court again
attempted therein to clarify how it had calculated the
presumptive child support amount. The court deter-
mined that because the parties’ combined net weekly
income was approximately $16,900, the presumptive
child support amount was $2600 per week pursuant to
the guidelines effective August 1, 2005, as well as Gen-
eral Statutes § 46b-84 (d).12 The court also articulated
that it ‘‘had not consider[ed] college expenses as a basis
for modification.’’ The court declined to articulate fur-
ther as to the retroactivity of the modification order.
Finally, the court made two observations directed at
the defendant’s previous arguments. First, the court
rejected the defendant’s argument regarding the termi-
nation of the alimony award because the agreement
limited the modification of alimony to specific events,
and the court had no jurisdiction to terminate the ali-
mony. Second, the court again stated that it did not
consider college expenses because the defendant was
obligated contractually to pay for those expenses. It
did, however, reiterate that ‘‘if the college expenses
significantly altered [the defendant’s] finances, that
might be a basis for modification.’’
Faced with this difficult record, we briefly review
the findings and conclusions that appear to be before
us in this appeal. The court modified the $20,000 per
month unallocated alimony and support order to a peri-
odic alimony order of $11,138 per month. It is also clear
that the court attempted to fashion this alimony order
in its second memorandum of decision by calculating
the presumptive child support amount attributable to
the unallocated alimony and support order, and
deducting that figure ($8862 per month) from $20,000.
The court arrived at the child support figure by
reviewing the parties’ current financial affidavits, as
presented at the 2012 hearings, and determining the
parties’ combined net weekly income, then applying the
2005 guidelines with respect to three children and the
statutory factors listed in § 46b-84 (d). Although the
court acknowledged that the obligation to pay college
expenses constituted a substantial change in the defen-
dant’s circumstances, it did not consider his obligation
to pay college expenses as a basis for modification of
alimony. Therefore, the court justified its alimony order
by analyzing the parties’ financial circumstances in light
of the factors listed in § 46b-82 as well as Borkowski
v. Borkowski, supra, 228 Conn. 729.
What is less clear is the effective date of the modifica-
tion order and the amount of the arrearage owed to the
plaintiff as a result of the contempt finding. The second
memorandum of decision contains conflicting language
as to the retroactivity of the newly fashioned alimony
order, and the court declined to articulate its order.
Moreover, although the court explicitly stated in its
second memorandum of decision that the arrearage
‘‘must be recalculated,’’ it did not do so.
On March 10, 2014, the defendant filed this appeal,
which he later amended on September 16, 2014. The
plaintiff also filed an appeal on September 16, 2014.
See footnote 1 of this opinion. Additional facts will be
set forth as necessary.
I
The defendant’s first claim is that the court applied
the wrong legal standard in calculating what portion of
the original unallocated alimony and child support
order was child support. He makes two arguments to
support this claim. First, the defendant contends that
the court failed to apply the methodology for determin-
ing the child support portion of an unallocated alimony
and child support order, as articulated in Tomlinson v.
Tomlinson, 305 Conn. 539, 46 A.3d 112 (2012); specifi-
cally, the court erroneously used the parties’ current net
weekly incomes to calculate the child support amount.
Second, he asserts that the court should have deter-
mined the intent of the parties rather than applying the
guidelines to determine the amount of child support.
Thus, the defendant contends, the entire modification
order must be reversed. We agree that the court applied
the wrong legal standard.
The following additional facts are required. The court
at the original dissolution proceeding in 2004, Hon.
Dennis F. Harrigan, judge trial referee, found the
agreement between the parties to be fair and equitable.
It incorporated the terms of the agreement into the
dissolution decree, noting that ‘‘the income of the
[d]efendant exceeds the maximum under the guidelines
schedule, [and] [t]he parties have reached an agreement
as to [child support] in their [a]greement.’’
At the November 16, 2012 hearing, the defendant
testified to his interpretation of the unallocated alimony
and child support award. Specifically, he testified that
the $20,000 obligation was meant to be equally divided
among the three children and the plaintiff, i.e., $5000
per person per month. The defendant also stated that
although he agreed to pay for the children’s college
expenses, he also assumed that the ‘‘$5000 per child
would be eliminated’’ once the child was in college.
Moreover, he asserted that he would not have signed
the agreement if he ‘‘would be paying the [children’s]
college education and continue paying $20,000 a month
[in] alimony for the rest of [his] life.’’
The defendant makes two arguments to support this
claim. First, he claims that the court improperly used
the parties’ current financial affidavits. Second, he
claims that the court should have credited the defen-
dant’s testimony as to the parties’ intent regarding how
the $20,000 was meant to be divided. The second argu-
ment is based on the defendant’s reading of the original
dissolution decree in which Judge Harrigan not only
found that this was a case of a high income parent
whose net weekly income went beyond the guidelines,
but also that the parties had reached an agreement as
to child support. Thus, the defendant contends, the
court never should have applied the guidelines when
deciding the motion to modify. As to the defendant’s
first argument, we agree. We reject the defendant’s sec-
ond argument.
We begin by setting forth the relevant standard of
review and legal principles. The defendant asserts that
the court applied the wrong legal standard in calculating
the child support amount and that the court, rather than
applying the guidelines, should only have determined
the intent of the parties to ascertain the amount of child
support in the unallocated alimony and child support
order. Because the defendant raises a question of law
in both issues and we must interpret existing statutes
and regulations,13 we apply plenary review. See Tuck-
man v. Tuckman, 308 Conn. 194, 200, 61 A.3d 449 (2013)
(‘‘[t]he question of whether, and to what extent, the
child support guidelines apply . . . is a question of law
over which this court should exercise plenary review’’
[internal quotation marks omitted]); Coury v. Coury,
161 Conn. App. 271, 293, 128 A.3d 517 (2015) (‘‘[o]ur
deferential standard of review [in domestic relations
cases] . . . does not extend to the court’s interpreta-
tion of and application of the law to the facts [thus, we
apply] . . . plenary review on appeal’’ [internal quota-
tion marks omitted]).
In cases such as this one, where the parties incorpo-
rate the child support into an unallocated alimony and
child support order that limits the modification of the
alimony pursuant to an agreement, modification
requires additional considerations. Because ‘‘an unallo-
cated order incorporates alimony and child support
without delineating specific amounts for each compo-
nent, the unallocated order, along with other financial
orders, necessarily includes a portion attributable to
child support in an amount sufficient to satisfy the
guidelines.’’ Tomlinson v. Tomlinson, supra, 305 Conn.
558. Thus, to decide a motion to modify in this situation,
‘‘a trial court must determine what part of the original
decree constituted modifiable child support and what
part constituted nonmodifiable alimony.’’ Id.
When a court unbundles child support from an unallo-
cated alimony and child support order, the guidelines
continue to provide guidance.14 See id. Even in cases
of high income parents, adherence to principles of the
guidelines is mandatory. See O’Brien v. O’Brien, 138
Conn. App. 544, 551, 53 A.3d 1039 (2012) (‘‘[o]ur
Supreme Court [has] emphasized the importance of the
mandatory application of the guidelines to all cases
involving minor children, including those cases involv-
ing families with high incomes’’ [emphasis added]), cert.
denied, 308 Conn. 937, 66 A.3d 500 (2013); see also
General Statutes § 46b-215b (a) (guidelines ‘‘shall be
considered in all determinations of child support award
amounts’’ [emphasis added]).
The 1999 guidelines include the schedule of basic
child support obligations (schedule) for calculating ‘‘the
basic child support obligation’’ for families that have
three minor children and a combined net weekly income
ranging from $10 to $2500.15 Regs., Conn. State Agencies
§ 46b-215a-2a (f). The guidelines, however, direct that,
‘‘[w]hen the parents’ combined net weekly income
exceeds [$2500], child support awards shall be deter-
mined on a case-by-case basis, and the current support
prescribed at the [$2500] net weekly income level shall
be the minimum presumptive amount.’’ (Emphasis
added.) Id., § 46b-215a-2a (a) (2); see also Dowling v.
Szymczak, 309 Conn. 390, 400, 72 A.3d 1 (2013). There-
fore, ‘‘[t]o the extent that the parties’ combined net
weekly income exceeds . . . the upper limit of the
schedule . . . the schedule cannot, and does not,
apply, except insofar as the guidelines mandate a mini-
mum child support payment. This does not mean, how-
ever, that the guideline principles that inform the
schedule, including equity, consistency and uniformity
in the treatment of persons in similar circumstances
. . . do not continue to apply merely because the par-
ties’ income exceeds the schedule’s upper limit. As pre-
viously discussed, § 46b-215b requires that the
guidelines shall be considered in all determinations of
child support amounts . . . . Accordingly, the guide-
lines cannot be ignored when the combined net family
income exceeds the upper limit of the schedule, but
remain applicable to all determinations of child sup-
port.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Maturo v. Maturo, 296 Conn.
80, 109, 995 A.2d 1 (2010).
Critical to this case, the guidelines grant discretionary
power for courts to deviate from the presumptive mini-
mum child support amount. ‘‘[T]he guidelines empha-
size that the support amounts calculated thereunder
are the correct amounts to be ordered by the court
unless rebutted by a specific finding on the record that
such an amount would be inequitable or inappropriate.
[Regs., Conn. State Agencies] § 46b-215a-3 (a). Any such
finding shall include the amount required under the
guidelines and the court’s justification for the deviation,
which must be based on the guidelines’ ‘[c]riteria for
deviation . . . .’ Id., § 46b-215a-3 (b).’’16 Maturo v.
Maturo, supra, 296 Conn. 92. ‘‘The deviation criteria
are narrowly defined and require the court to make a
finding on the record as to why the guidelines are
inequitable or inappropriate.’’ (Emphasis added.)
Id., 100.
Finally, ‘‘[i]n modifying the support order in a subse-
quent proceeding, a trial court may consider the same
factors applied in the initial determination to assess
any changes in the parties’ circumstances since the last
court order. . . . Section 46b-215b (c) mandates that
the guidelines shall be considered in addition to and
not in lieu of the criteria for such awards established
in [General Statutes §§] 46b-84 [and] 46b-86 . . . . Spe-
cifically, § 46b-84 (d) stipulates that the court shall con-
sider the age, health, station, occupation, earning
capacity, amount and sources of income, estate, voca-
tional skills and employability of each of the parents,
and the age, health, station, occupation, educational
status and expectation, amount and sources of income,
vocational skills, employability, estate and needs of the
child.’’ (Citation omitted; internal quotation marks omit-
ted.) Tomlinson v. Tomlinson, supra, 305 Conn. 559.
We now return to the facts of this case. The court
found a substantial change of circumstances in that the
children had reached the age of majority and were no
longer residing with either parent. These findings gave
the court the authority, pursuant to § 46b-86,17 to modify
the unallocated alimony and child support order. See
Malpeso v. Malpeso, 140 Conn. App. 783, 786, 60 A.3d
380 (2013) (§ 46b-86 [a] ‘‘permits the court to modify
alimony and child support orders if the circumstances
demonstrate that: [1] either of the parties’ circum-
stances have substantially changed; or [2] the final order
of child support substantially deviates from the child
support guidelines’’ [internal quotation marks omit-
ted]). The court, however, made four critical errors in
its attempt to unbundle the child support amount from
the original unallocated alimony and child support
order.
First, the court incorrectly used the 2005 guidelines.
In December, 2005, the parties’ agreement had been
opened and modified to allow the defendant to purchase
certain property from the plaintiff. The court, in its
attempt to unbundle the child support from the unallo-
cated alimony and child support, applied Borkowski
using 2005 as its benchmark. The court, however,
applied Borkowski incorrectly. Although ‘‘[i]t is . . .
well established that when a party, pursuant to § 46b-
86, seeks a postjudgment modification of a dissolution
decree that earlier had been modified, he or she must
demonstrate that a substantial change in circumstances
has arisen subsequent to the entry of the earlier modifi-
cation’’; (emphasis added) Borkowski v. Borkowski,
supra, 228 Conn. 736;18 this principle does not suggest
that the court, in this case, can set its benchmark to
2005 because the original decree setting the $20,000
unallocated alimony and child support order was not
modified in 2005. In other words, the court should have
applied the 1999 guidelines because the 2005 modifica-
tion did not relate to, and, importantly, did not modify
the unallocated alimony and child support order. See,
e.g., Demartino v. Demartino, 79 Conn. App. 488, 495,
830 A.2d 394 (2003) (‘‘[t]he prior order must therefore
be a prior order modifying alimony in some manner’’
[emphasis in original]).
Second, the court incorrectly used the parties’ cur-
rent financial affidavits to determine the combined net
weekly income. See Tomlinson v. Tomlinson, supra,
305 Conn. 558 (directing that courts, in unbundling unal-
located alimony and child support order, must deter-
mine child support order that was ‘‘right and proper at
the time it is entered,’’ which requires using financial
affidavits from time of original decree [emphasis in
original]). Third, after incorrectly calculating the com-
bined net weekly income and applying the guidelines
with a ‘‘presumptive declining factor,’’ the court errone-
ously attributed the presumptive minimum child sup-
port amount to each child rather than attributing the
amount to all three children. See Regs., Conn. State
Agencies § 46b-215a-2b (c) (3) (B) (calculated presump-
tive minimum child support amount from schedule rep-
resents ‘‘the total current support obligation of both
parents for all children who support is being deter-
mined’’ [emphasis added]).
Fourth and finally, because the parties’ 2004 com-
bined net weekly income, as noted by the court at the
time of dissolution, would have exceeded the $2500
threshold, the child support award was to be deter-
mined on a case-by-case basis. See Regs., Conn. State
Agencies § 46b-215a-2a (2). Therefore, the court should
have considered the deviation criteria and not simply
relied on the guidelines’ schedule setting the presump-
tive minimum child support amount. See Tomlinson v.
Tomlinson, supra, 305 Conn. 560 (noting that court,
in unbundling child support from unallocated order,
‘‘improperly may have relied solely on the presumptive
guidelines amount in calculating the portion attribut-
able to child support at the time of dissolution’’ [empha-
sis added]). Accordingly, the court in this case applied
the wrong legal standard in determining the child sup-
port amount attributable to the original unallocated
alimony and child support order.
On remand, to determine the proper child support
amount, the court must correctly unbundle the child
support from the 2004 unallocated alimony and child
support order. First, it must determine the parties’ com-
bined net weekly income using the 2004 financial affida-
vits. Second, it must calculate the presumptive
minimum for the then three minor children.19 Because
the net weekly income exceeded the schedule’s $2500
threshold, the court may, ‘‘in the exercise of [its] discre-
tion, determine the correct percentage of the combined
net weekly income assigned to child support in light of
the circumstances in [this] particular case, including a
consideration of other, additional obligations imposed
on the noncustodial parent, any deviation from the
schedule or the principles on which the guidelines are
based must be accompanied by the court’s explanation
as to why the guidelines are inequitable or inappropriate
and why the deviation is necessary to meet the needs
of the child.’’ Maturo v. Maturo, supra, 296 Conn. 95–96.
Further, the court will need to ascertain the intent
of the parties. See Isham v. Isham, 292 Conn. 170,
180–81, 972 A.2d 228 (2009). The record reveals that the
parties had ‘‘reached an agreement as to child support
in their [a]greement.’’ The agreement states that the
‘‘defendant shall pay to the [plaintiff] as alimony, or
separate maintenance for the support of the minor
children the sum of $20,000 per month.’’ (Emphasis
added.) This court previously determined that the ‘‘only
plausible interpretation of this clause is that it provides
for unallocated alimony and child support.’’ Malpeso
v. Malpeso, supra, 140 Conn. App. 788. The language,
however, was not clear as to how the $20,000 was to
be divided. Because ‘‘support agreements that are not
in accordance with the financial dictates of the guide-
lines are not enforceable unless one of the guidelines’
deviation criteria is present, such as when the terms
of the agreement are in the best interest of the child’’;
Brent v. Lebowitz, 67 Conn. App. 527, 532, 787 A.2d
621, cert. granted on other grounds, 260 Conn. 902, 793
A.2d 1087 (2002) (appeal withdrawn April 25, 2002); the
court must determine what was intended to be child
support within the unallocated alimony and child sup-
port order to ensure the agreement did not run afoul
of the guidelines.20
Our Supreme Court has ‘‘characterized the financial
orders in dissolution proceedings as resembling a
mosaic, in which all the various financial components
are carefully interwoven with one another. . . .
Accordingly, when an appellate court reverses a trial
court judgment based on an improper alimony, property
distribution, or child support award, the appellate
court’s remand typically authorizes the trial court to
reconsider all of the financial orders. . . . We also have
stated, however, that [e]very improper order . . . does
not necessarily merit a reconsideration of all of the trial
court’s financial orders. A financial order is severable
when it is not in any way interdependent with other
orders and is not improperly based on a factor that is
linked to other factors. . . . In other words, an order
is severable if its impropriety does not place the correct-
ness of the other orders in question. . . . Determining
whether an order is severable from the other financial
orders in a dissolution case is a highly fact bound
inquiry.’’ (Citations omitted; internal quotation marks
omitted.) Tuckman v. Tuckman, supra, 308 Conn. 214.
In the present case, we have concluded that the court
applied the wrong legal standard in calculating the child
support amount from the original unallocated alimony
and child support order. Therefore, to determine a new
alimony order, after the correct child support amount
is deducted from the original unallocated alimony and
child support order, the court must ‘‘subtract that
amount from the total amount of [the] unallocated [ali-
mony and] support [order] . . . .’’; Coury v. Coury,
supra, 161 Conn. App. 304; i.e., subtract the 2004 child
support amount from $20,000. The difference repre-
sents the 2004 alimony award. Because ‘‘grounds for
modification have been shown . . . the trial court is
entitled to consider all the factors, as mandated by . . .
[§] 46b-82,21 available in determining the initial award.’’
(Footnote added.) Matles v. Matles, 8 Conn. App. 76,
81, 511 A.2d 363 (1986). Consequently, the court must
now compare the newly determined 2004 alimony
award against the parties’ 2012 financial circumstances
because the defendant’s second motion to modify ali-
mony and child support was before the court in 2012.
Finally, because we do not know the impact of the
college expenses on the court’s analysis in developing
a new alimony order on remand, we conclude that the
financial mosaic as to alimony must be crafted anew.
Accordingly, a new hearing is required to consider the
financial issues pertaining to fashioning an alimony
order, if any.22 See, e.g., Tuckman v. Tuckman, supra,
308 Conn. 215.
II
The defendant’s next claim is that the court abused
its discretion in determining the effective date of the
modification. Specifically, he points to various inconsis-
tencies among the court’s three orders regarding their
retroactivity, which make it ‘‘impossible to calculate a
new arrearage figure . . . .’’ The defendant contends
that any arrearage should be retroactive, by operation
of law, to the day when the parties’ oldest child reached
the age of majority and not the date his motion to modify
was served on the plaintiff, February 9, 2012. According
to the defendant, this date is not an impediment for the
court to order retroactivity to April 1, 2006, when the
oldest child reached the age of majority. He cites no
case law to support this proposition. Rather, the defen-
dant argues that § 46b-86 (a) must be harmonized with
General Statutes § 46b-66.23 We reject the defendant’s
argument, but we conclude that the court abused its
discretion because it did not enter a clear order as to
the retroactivity of its modified alimony order.
‘‘The well settled standard of review in domestic rela-
tions cases is that this court will not disturb trial court
orders unless the trial court has abused its legal discre-
tion or its findings have no reasonable basis in the facts.
. . . 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. . . . Notwithstanding the
great deference accorded the trial court in dissolution
proceedings, a trial court’s ruling . . . may be reversed
if, in the exercise of its discretion, the trial court applies
the wrong standard of law.’’ (Internal quotation marks
omitted.) Nation-Bailey v. Bailey, 144 Conn. App. 319,
323, 74 A.3d 433 (2013), aff’d, 316 Conn. 182, 112 A.3d
144 (2015).
The following legal principles guide our analysis. ‘‘As
a general matter, [t]he obligation of a parent to support
a child terminates when the child attains the age of
majority, which, in this state, is eighteen. General Stat-
utes § 1-1d; Kennedy v. Kennedy, 177 Conn. 47, 52, 411
A.2d 25 (1979).’’ (Internal quotation marks omitted.)
Hughes v. Hughes, 95 Conn. App. 200, 208, 895 A.2d
274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006).
Nonetheless, ‘‘[t]his court has held that [w]hen, as part
of a divorce decree, a parent is ordered to pay a speci-
fied amount periodically for the benefit of more than
one child, the emancipation of one child does not auto-
matically affect the liability of the parent for the full
amount. . . . The proper remedy . . . is to seek a
modification of the decree.’’ (Internal quotation marks
omitted.) Id., 209.
The defendant’s argument is untenable because the
relevant statutes and case law contradict his position.
Section 46b-66 explicitly states that agreements ‘‘shall
be modifiable to the same extent as any other provision
of any order or decree in accordance with section 46b-
86.’’ General Statutes § 46b-66 (b). Section 46b-86 (a)
provides in relevant part: ‘‘No order for periodic pay-
ment 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 . . . .’’ (Emphasis added.) Therefore, notwith-
standing the general rule that in Connecticut, absent
an agreement, a parent’s obligation to support a child
ends at the age of majority, the party seeking to termi-
nate such obligation must file a motion with the court.24
This court previously has observed, ‘‘[h]ere, we are
faced with a situation where an event certain, the attain-
ment of majority by the child, inevitably is bound to
occur. Under such circumstances, logic and reason
leads us to conclude that when an order for unallocated
alimony and support is entered and when that order
does not contain a provision for specific reduction or
reallocation upon the child’s majority, there is implicit
in such order the contemplation that when the child
attains majority the trial court, upon motion of either
party, must conduct a hearing to ascertain what part,
if any, of the order is then attributable to child support
and it must modify the order to reflect the same.’’
(Emphasis added.) Matles v. Matles, supra, 8 Conn. App.
81. Here, the defendant did not file a motion to modify
the unallocated alimony and child support order when
his son reached the age of majority.
It is axiomatic that the court has discretion in
determining the amount of alimony to be paid retroac-
tively. See General Statutes § 46b-86 (a). We have
explained that a ‘‘retroactive award may take into
account the long time period between the date of filing
a motion to modify, or, with this case, the contractual
retroactive date, and the date that motion is heard,
which in this case spans a number of years. The court
may examine the changes in the parties’ incomes and
needs during the time the motion is pending to fashion
an equitable award based on those changes. The current
alimony need not be uniformly retroactive, if such a
result would be inequitable.’’ Zahringer v. Zahringer,
124 Conn. App. 672, 689, 6 A.3d 141 (2010).
Notwithstanding this broad discretion afforded to our
trial courts, the court here abused its discretion by
failing to provide a clear retroactivity order. In its first
memorandum of decision, it ‘‘declines’’ to apply its
order retroactively. In its second decision, by contrast,
the court applies its orders retroactively ‘‘to the [date
of] service of the motion for modification,’’ which was
February 9, 2012. That same order becomes unclear,
however, when later in the same paragraph of the same
memorandum of decision, the court states that it has
‘‘incorrectly declined to award retroactivity to the date
of majority,’’ but it was ‘‘correct[ing] that error.’’ There
was no further clarification.
Accordingly, we conclude that the court abused its
discretion by not entering a clear order as to the retroac-
tivity of its modified alimony and child support order.
On remand, after it calculates the proper alimony
award, if any, the court must resolve the issue of retro-
activity.
III
The defendant also claims that the court incorrectly
concluded that it lacked jurisdiction to terminate the
alimony. Specifically, he claims that because the hear-
ings began in October, 2012, and the court found that
the college expenses constituted a substantial change
in circumstances, it had the authority to terminate ali-
mony. We agree that the court had jurisdiction to termi-
nate alimony.
In its final memorandum, the court made the follow-
ing observation: ‘‘The defendant’s argument concerning
the termination of alimony is flawed. The separation
agreement specifically limits any modification of ali-
mony to specific events. The court does not have juris-
diction to terminate alimony.’’ When the underlying
issue of the claim pertains to the jurisdiction of the
court, it is a question of law over which our review is
plenary. Tittle v. Skipp-Tittle, 161 Conn. App. 542, 549,
128 A.3d 590 (2015); see also Parker v. Commissioner
of Correction, 117 Conn. App. 727, 729, 980 A.2d 930,
(‘‘[o]ur standard of review is plenary when examining
whether jurisdiction exists’’), cert. denied, 294 Conn.
917, 983 A.2d 851 (2009).
General Statutes § 46b-1 provides that the Superior
Court has subject matter jurisdiction over legal disputes
in ‘‘family relations matters,’’ including alimony; Gen-
eral Statutes § 46b-1 (4); and § 46b-86 (a) provides that
the court has continuing subject matter jurisdiction to
modify alimony orders. Amodio v. Amodio, 247 Conn.
724, 729, 724 A.2d 1084 (1999). ‘‘Together, therefore,
these two statutes provided the trial court with subject
matter jurisdiction over the modification claim in the
present case.’’ Id., 729–30.
In cases such as this one, where the parties have an
agreement, the court must determine whether it has
the statutory authority to act. ‘‘Separate and distinct
from the question of whether a court has jurisdictional
power to hear and determine a support matter, how-
ever, is the question of whether a trial court properly
applies § 46b-86 (a), that is, properly exercises its statu-
tory authority to act. Section 46b-86 (a) authorizes the
court to modify support orders, [u]nless and to the
extent that the decree precludes modification . . . .’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 730.
In the present case, the court confused the issues of
subject matter jurisdiction and the proper exercise of
its authority to act pursuant to § 46b-86 (a). Conse-
quently, the court erred in interpreting the agreement
as depriving it of the jurisdiction to terminate alimony.
The agreement limited modification until July 1, 2012.
After that date, ‘‘upon a court of competent jurisdic-
tion’s determination that there has been a substantial
change of circumstances,’’ the alimony could be modi-
fied. Although the defendant’s motion was served in
February, 2012, the court held hearings on the motion
starting in October, 2012. We take no position on
whether modification or termination of alimony was
warranted. We merely conclude that the court ‘‘had the
jurisdiction to entertain the claim for modification [or
termination of alimony]’’; Amodio v. Amodio, supra,
247 Conn. 732; and had the statutory authority to act.
IV
The defendant’s final claim is that the court abused its
discretion by finding him in contempt and by awarding
attorney’s fees and costs to the plaintiff. We address
each claim in turn.
A
We first address the defendant’s claim that the court
abused its discretion in finding him in contempt. The
following facts are necessary to resolve this claim. The
court found the defendant’s net monthly income to be
$58,269. It also found that the defendant was paying
$32,000 per month toward his children’s college
expenses. Pursuant to the unallocated alimony and
child support order, the defendant’s monthly financial
obligation to the plaintiff was $20,000. Deducting these
two liabilities from his net monthly income, $6269 was
left for the defendant to pay his other monthly expenses.
The defendant testified that he stopped making the
$20,000 monthly payments in May, 2011, because ‘‘math-
ematically [he could not] afford it.’’
The court made several findings regarding the defen-
dant’s real estate assets. On the basis of the defendant’s
October, 2012 financial affidavit, it found that the total
value of his real estate was approximately $8,800,000,
with unencumbered equity totaling $5,050,000. The
court also found that four of the five properties did
not have mortgages. Furthermore, the court found that
many of the defendant’s claimed expenses had been
voluntarily assumed. Ultimately, under the first and sec-
ond memoranda of decision, the court found the defen-
dant in contempt because of his ‘‘wilful and intentional
violation of the court orders.’’ Specifically, the court
stated that the defendant had ‘‘avail[ed] himself of self-
help’’ and found the defendant’s claim of an ‘‘inability
to pay to be without merit.’’ Although the court ordered
that the ‘‘arrearage which must be recalculated to
reflect the current arrearage accruing since December,
2012, as modified with retroactivity,’’ it made no recal-
culation nor did it explain why it selected December,
2012, as the start of accrual the period.
Before resolving the defendant’s claim, we set forth
the standard of review and relevant legal principles. ‘‘A
finding of contempt is a question of fact, and our stan-
dard of review is to determine whether the court abused
its discretion in [finding] that the actions or inactions
of the [alleged contemnor] were in contempt of a court
order. . . . To constitute contempt, a party’s conduct
must be wilful. . . . Noncompliance alone will not sup-
port a judgment of contempt. . . . [T]he credibility of
witnesses, the findings of fact and the drawing of infer-
ences are all within the province of the trier of fact.
. . . We review the findings to determine whether they
could legally and reasonably be found, thereby estab-
lishing that the trial court could reasonably have con-
cluded as it did.’’25 (Internal quotation marks omitted.)
Norberg-Hurlburt v. Hurlburt, 162 Conn. App. 661, 669,
A.3d (2016).
‘‘[T]he credibility of witnesses, the findings of fact
and the drawing of inferences are all within the province
of the trier of fact. . . . We review the findings to deter-
mine whether they could legally and reasonably be
found, thereby establishing that the trial court could
reasonably have concluded as it did.’’ (Internal quota-
tion marks omitted.) Lynch v. Lynch, 153 Conn. App.
208, 238–39, 100 A.3d 968 (2014), cert. denied, 315 Conn.
923, 108 A.3d 1124, cert. denied, U.S. , 136 S.
Ct. 68, 193 L. Ed. 2d 66 (2015).
Although ‘‘[c]ontempt is a disobedience to the rules
and orders of a court which has power to punish for
such an offense’’; (internal quotation marks omitted)
Brody v. Brody, 145 Conn. App. 654, 662, 77 A.3d 156
(2013); ‘‘[t]he inability of a party to obey an order of
the court, without fault on his part, is a good defense
to the charge of contempt. . . . The contemnor must
establish that he cannot comply, or was unable to do
so.’’ (Internal quotation marks omitted.) Id.
Applying these principles to this case, we conclude
that the court did not abuse its discretion in finding the
defendant in contempt. The record supports the court’s
findings, namely, that the defendant had substantial
equity in various real properties that he could have used
to raise funds to meet his alimony and child support
obligations. Having heard the defendant’s testimony,
the court was within its province to credit or not credit
that testimony. Nonetheless, in Connecticut, it is clear
that ‘‘[a]n order of the court must be obeyed until it has
been modified or successfully challenged.’’ (Internal
quotation marks omitted.) Sablosky v. Sablosky, 258
Conn. 713, 719, 784 A.2d 890 (2001). Therefore, ‘‘until
a motion is brought to and is granted by the court, that
party may be held in contempt in the discretion of the
trial court if, in the interim, the complaining party fails
to abide by the support order.’’ Id., 722. Our Supreme
Court repeatedly has advised parties against engaging
in self-help. See, e.g., id., 719–20. Failure to heed this
warning may be a sufficient ground for a party to be
held in contempt. See id., 720. The court ‘‘was entitled
to determine that to exonerate the [defendant] would
be an undue inducement to litigants’ exercise of self-
help.’’ (Emphasis in original; internal quotation marks
omitted.) Id.
Although we affirm the finding of contempt, we can-
not allow the court’s arrearage order to stand because,
after declaring that it must, the court never recalculated
the arrearage. Additionally, in light of our conclusions
in parts I and II of this opinion, to conclude otherwise
would not serve the interests of justice. See, e.g.,
Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757
(1998) (affirming contempt finding but reversing attor-
ney’s fees award that was based on contempt finding).
On remand, the court must recalculate the arrearage
amount.
B
The following facts are necessary to resolve the
defendant’s claim that the court abused its discretion
in awarding attorney’s fees and costs to the plaintiff.
At the hearing, the plaintiff introduced, as a full exhibit,
an invoice of her attorney’s fees. After the hearing,
the plaintiff sought attorney’s fees and submitted her
counsel’s affidavit. In the affidavit, counsel averred that
he had spent 60.6 hours on the ‘‘plaintiff’s motion for
modification.’’ At his $400 hourly rate, the total fee
billed for this service was $24,240. Additionally, the
plaintiff’s counsel averred that he had spent 11.7 hours
‘‘[o]n the contempt motion’’ for a total fee of $4680.
Adding the two fees and total costs of $915.68 together,
the plaintiff sought a total of $29,835.68. After the court
found the defendant in contempt, it awarded the plain-
tiff $40,000 in attorney’s fees and $1016.18 in costs.
The following law and principles guides our analysis.
General Statutes § 46b-87 grants the court the discretion
to award attorney’s fees to the prevailing party in a
contempt proceeding.26 ‘‘The award of attorney’s fees
in contempt proceedings is within the discretion of the
court. . . . An abuse of discretion in granting the coun-
sel fees will be found only if this court determines that
the trial court could not reasonably have concluded
as it did.’’ (Citation omitted; internal quotation marks
omitted.) Esposito v. Esposito, 71 Conn. App. 744, 748,
804 A.2d 846 (2002). Importantly, ‘‘where contempt is
established, the concomitant award of attorney’s fees
properly is awarded pursuant to § 46b-87 and is
restricted to efforts related to the contempt action.’’
Id., 749.
The record reveals that the court abused its discre-
tion. The affidavit of the plaintiff’s counsel states that
counsel worked on a motion for contempt. In this case,
each party filed a motion for contempt. The affidavit
does not state how many of the 11.7 hours were spent
on each motion. Moreover, the affidavit unequivocally
states that the plaintiff’s counsel spent 60.6 hours on
the ‘‘plaintiff’s motion for modification,’’ which
accounts for most of the fee that was sought. (Emphasis
added.) The record shows that the plaintiff did not file
a motion to modify. Even if she had filed such a motion
and the court had found the defendant in contempt,
any attorney’s fees awarded to the plaintiff would be
‘‘restricted to efforts related to the contempt action.’’
Esposito v. Esposito, supra, 71 Conn. App. 749. Thus,
the court abused its discretion in its award of attorney’s
fees and costs. Accordingly, we vacate the award of
attorney’s fees and remand this matter to the court for
further proceedings in accordance with this opinion.
The judgment is reversed as to the court’s financial
orders and award of attorney’s fees and costs, and the
case is remanded for further proceedings consistent
with this opinion. The judgment is affirmed as to the
finding of contempt.
In this opinion the other judges concurred.
1
The plaintiff, Charlotte Malpeso, filed an appeal challenging the court’s
use of the child support and arrearage guidelines in determining the child
support amount from the original unallocated alimony and child support
order. She also claims that the court erred in its retroactivity order. The
plaintiff’s appeal was assigned docket number AC 37203. Upon a joint motion
to consolidate, this court granted the motion and AC 37203 was treated as
a cross appeal to AC 36622 for the purposes of briefing and argument. We
note that our resolution of the defendant’s claims also disposes of the
plaintiff’s cross appeal.
2
We do not address the defendant’s third claim. The record reveals that
the court did not place a lien on any real property. In other words, the
defendant was not aggrieved, which is a condition precedent for us to rule
on a matter. See General Statutes § 52-263 (right of appeal from Superior
Court if ‘‘either party is aggrieved by the decision of the court’’); see also
Practice Book § 61-1. Thus, we decline to accept the invitation to provide
an advisory opinion. See Nowacki v. Nowacki, 144 Conn. App. 503, 514, 72
A.3d 1245 (‘‘this court does not render advisory opinions’’), cert. denied,
310 Conn. 939, 79 A.3d 891 (2013).
3
The agreement stated in relevant part: ‘‘3.1 During the lifetime of the
[defendant] and until the death, remarriage or cohabitation of the [plaintiff],
whichever event shall first occur, the [defendant] shall pay to the [plaintiff]
as alimony, or separate maintenance for the support of the minor children
the sum of $20,000 per month.’’
4
In its entirety, the clause provided: ‘‘3.2 The amount and term of alimony
shall be modifiable only under the following circumstances:
‘‘(a) Upon a court of competent jurisdiction’s determination that the
[defendant] has become disabled as defined by the Social Security Adminis-
tration or in the event that the economy of New York undergoes a substantial
change as a result of a catastrophic event (such as 9/11).
‘‘(b) After July 1, 2012, upon a court of competent jurisdiction’s determina-
tion that there has been a substantial change of circumstances as provided
for in Connecticut General Statute[s] § 46b-84a.
‘‘(c) The parties contemplate that the [plaintiff] may obtain full or part-
time employment either before or after entry of a decree of dissolution.
Such employment shall not be deemed a substantial change in circumstances
during the first eight years of the alimony term.
‘‘(d) Only under the circumstances set forth in this paragraph 3.3 shall
the [defendant’s] obligation to pay alimony pursuant to paragraph 3.1 be
modifiable during the first eight years.’’
Paragraph 3.3 provided: ‘‘The parties shall endeavor to negotiate child
support if alimony terminates while any child or children are minors. If they
are unable to agree, the amount of child support to be paid by the [defendant]
[it] shall be determined by a court of competent jurisdiction. Child support
payments shall be retroactive to the last day on which alimony was paid.’’
5
The agreement provided in relevant part: ‘‘10.2 The [defendant] shall
be responsible for payment of the costs of undergraduate college and/or
vocational educational expenses for the three minor children. For purposes
of this subparagraph, said undergraduate college educational expenses shall
include, room, board, books, tuition, fees and a reasonable travel allowance
to [and] from home. Said expenses shall also include college application
fees and costs, the costs of SAT preparation courses and the costs of required
pre-college tests.’’
6
At the hearing for the second motion, the defendant elaborated that his
financial difficulties stemmed from pending litigation concerning his dental
practice and significant damage caused by Hurricane Sandy on his primary
residence. The defendant argued that, collectively, the litigation and repairs
would reduce his income.
7
In Malpeso v. Malpeso, 140 Conn. App. 783, 788–89, 60 A.3d 380 (2013),
we held that the child support encompassed within the unallocated alimony
and support order was not subject to paragraph 3.2 of the parties’ agreement
that limited the modification of the alimony.
Before this court’s reversal of Judge Wenzel’s ruling on the defendant’s
amended motion to modify alimony and child support filed in August, 2011,
the defendant filed his second motion to modify alimony and child support
on January 25, 2012. Neither party raised or briefed the vitality of the August,
2011, amended motion. Moreover, Judge Schofield explicitly addressed, inter
alia, the defendant’s second motion to modify alimony and child support
filed in January, 2012. Therefore, we do not address the 2011 amended
motion and focus exclusively on the operative motion, the defendant’s sec-
ond motion to modify alimony and child support from which this appeal
was taken.
8
The court did not explain its reasons for rounding down to $8000.
9
The court provided the parties with its calculations. On the basis of the
record, it is clear that the court relied on the parties’ current financial
affidavits. Specifically, it attributed $15,000 net income per month to the
plaintiff and $58,269 net income per month to the defendant. Thus, the
court calculated the plaintiff’s net weekly income to be $3488.37 and the
defendant’s net weekly income to be $13,550.93.
10
For reference, the court appended an undated, handwritten excerpt of
the guidelines.
11
We note that the court did not expressly state that the defendant’s new
monthly obligation was $11,138. This amount was calculated by applying
the court’s order, i.e., multiplying $2061 by four weeks ($8862) and sub-
tracting that amount from $20,000.
12
General Statutes § 46b-84 (d) provides: ‘‘In determining whether a child
is in need of maintenance and, if in need, the respective abilities of the
parents to provide such maintenance and the amount thereof, the court
shall consider the age, health, station, occupation, earning capacity, amount
and sources of income, estate, vocational skills and employability of each
of the parents, and the age, health, station, occupation, educational status
and expectation, amount and sources of income, vocational skills, employ-
ability, estate and needs of the child.’’
13
‘‘To the extent that this task requires us to interpret the meaning and
application of the relevant statutes [and regulations] in relation to the facts
of the case, our analysis is guided by General Statutes § 1-2z, which directs
us first to consider the text of the statute itself and its relationship to other
statutes. If, after examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and does not yield absurd
or unworkable results, extratextual evidence of the meaning of the statute
shall not be considered.’’ (Internal quotation marks omitted.) Tomlinson v.
Tomlinson, supra, 305 Conn. 546–47.
14
All references to the guidelines are made to the guidelines effective
August 1, 1999, which were the applicable guidelines at the time of the
parties’ 2004 dissolution proceedings.
15
We note that the combined net weekly income ceiling was increased
to $4000 in the 2005 guidelines. See Child Support and Arrearage Guidelines
(2005), preamble, § (b) (4), p. ii.
16
From the 1999 guidelines, only the deviation criteria delineated in the
guidelines may be used, and the six criteria are as follows: (1) ‘‘[o]ther
financial resources available to a parent’’; (2) ‘‘[e]xtraordinary expenses for
care and maintenance of the child’’; (3) ‘‘[e]xtraordinary parental expenses’’;
(4) ‘‘[n]eeds of a parent’s other dependents’’; (5) ‘‘[c]oordination of total
family support’’; and (6) ‘‘[s]pecial circumstances.’’ Regs., Conn. State Agen-
cies § 46b-215a-3. The sixth criteria provides, inter alia, that the court may
consider the ‘‘[b]est interests of the child,’’ and ‘‘[o]ther equitable factors.’’
Id., § 46b-215a-3 (6) (B) and (C). We note that in 2005, just over a year after
the parties entered into the agreement, the guidelines were amended to add
another consideration to the sixth criterion, ‘‘[e]xtraordinary disparity in
parental income.’’ See Child Support and Arrearage Guidelines (2005), pre-
amble, § (b) (9), p. ii.
17
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support, an order for alimony
or support pendente lite or an order requiring either party to maintain life
insurance for the other party or a minor child of the parties may, at any
time thereafter, be continued, set aside, altered or modified by the court
upon a showing of a substantial change in the circumstances of either party.
. . . If a court, after hearing, finds that a substantial change in circumstances
of either party has occurred, the court shall determine what modification
of alimony, if any, is appropriate, considering the criteria set forth in section
46b-82 . . . .’’
18
In Borkowski, the certified question on appeal was, ‘‘When a party
files a motion to modify which seeks termination of alimony after a prior
modification of alimony, may the trial court consider any change of circum-
stances arising since the date of the original decree?’’ (Emphasis added;
internal quotation marks omitted.) Borkowski v. Borkowski, supra, 228
Conn. 732–33.
19
The 1999 guidelines set the presumptive minimum for three children
whose parents’ combined net weekly income is $2500 at $684 per week.
See Regs., Conn. State Agencies § 46b-215a-2a (f).
20
‘‘It is well established that a separation agreement that has been incorpo-
rated into a dissolution decree and its resulting judgment must be regarded as
a contract and construed in accordance with the general principles governing
contracts. . . . When construing a contract, we seek to determine the intent
of the parties from the language used interpreted in the light of the situation
of the parties and the circumstances connected with the transaction. . . .
[T]he intent of the parties is to be ascertained by a fair and reasonable
construction of the written words and . . . the language used must be
accorded its common, natural, and ordinary meaning and usage where it
can be sensibly applied to the subject matter of the contract. . . . When
only one interpretation of a contract is possible, the court need not look
outside the four corners of the contract. . . . Extrinsic evidence is always
admissible, however, to explain an ambiguity appearing in the instrument.’’
(Citations omitted; emphasis omitted; internal quotation marks omitted.)
Isham v. Isham, supra, 292 Conn. 180–81.
21
General Statutes § 46b-82 (a) provides in relevant part: ‘‘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.’’
22
The scope of that hearing is limited. As discussed, when the alimony
order is determined from the original unallocated alimony and child support
order, the court will need to consider the financial resources of the defen-
dant. This necessarily implicates considering the impact of the college
expenses on his ability to pay any new alimony award. See generally Greco
v. Greco, 275 Conn. 348, 361, 880 A.2d 872 (2005) (‘‘defendant’s ability to pay
is a material consideration in formulating financial awards’’). This evaluation,
however, does not require the court to revisit the college expense order
and modify it. Moreover, the limited scope of the hearing, in this case, does
not require a court to reconsider long settled property distribution amongst
the parties.
23
General Statutes § 46b-66 provides in relevant part: ‘‘(a) In any case
under this chapter where the parties have submitted to the court an
agreement concerning the custody, care, education, visitation, maintenance
or support of any of their children or concerning alimony or the disposition
of property, the court shall inquire into the financial resources and actual
needs of the spouses and their respective fitness to have physical custody
of or rights of visitation with any minor child, in order to determine whether
the agreement of the spouses is fair and equitable under all the circum-
stances. If the court finds the agreement fair and equitable, it shall become
part of the court file, and if the agreement is in writing, it shall be incorporated
by reference into the order or decree of the court. . . . If the agreement
is in writing and provides for the care, education, maintenance or support
of a child beyond the age of eighteen, it may also be incorporated or other-
wise made a part of any such order and shall be enforceable to the same
extent as any other provision of such order or decree, notwithstanding the
provisions of section 1-1d.
‘‘(b) Agreements providing for the care, education, maintenance or support
of a child beyond the age of eighteen entered into on or after July 1, 2001,
shall be modifiable to the same extent as any other provision of any order
or decree in accordance with section 46b-86. . . .’’
24
This court has also commented that ‘‘[i]n 1990 . . . the Connecticut
legislature passed an amendment to § 46b-86 (a) that provided, inter alia,
that ‘[n]o 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.’ . . . This amendment permitted the retroactive modifica-
tion of alimony awards back to the date of the motion to modify.’’ (Citation
omitted; emphasis omitted.) Milbauer v. Milbauer, 54 Conn. App. 304, 310,
733 A.2d 907 (1999).
25
Findings of indirect civil contempt must be supported by clear and
convincing evidence. Brody v. Brody, 315 Conn. 300, 302–303, 105 A.3d 887
(2015). Here, the defendant characterizes the court’s findings as inconsistent,
namely, the court’s finding that his conduct was wilful juxtaposed against
the court’s determination that he ‘‘convincingly [testified] that he believed
that once he assumed the college expense obligations . . . his unallocated
alimony and support payment would be reduced.’’ The defendant points to
these findings as confirmation that the court’s finding of contempt was not
supported by clear and convincing evidence as required by Brody. We need
not address this argument for two reasons. The court made several other
findings, i.e., the defendant’s real estate assets, to support its finding of
contempt. Moreover, the defendant, in his brief, does not analyze if the clear
and convincing standard applies retrospectively, and we will not endeavor
to do so. See Denardo v. Bergamo, 272 Conn. 500, 508, 863 A.2d 686 (2005).
26
General Statutes § 46b-87 provides in relevant part: ‘‘When any person
is found in contempt of an order of the Superior Court entered under . . .
section 46b-86, the court may award to the petitioner a reasonable attorney’s
fee . . . such sums to be paid by the person found in contempt . . . .’’