De Almeida-Kennedy v. Kennedy

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FATIMA K. DE ALMEIDA-KENNEDY v.
JAMES KENNEDY
(AC 40997)
Lavine, Sheldon and Elgo, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from various postjudgment orders of the
trial court denying in part his motion for modification of unallocated
alimony and child support, granting in part the plaintiff’s motion for
clarification and awarding the plaintiff attorney’s fees incurred defending
the motion for modification, and granting the plaintiff’s motion for attor-
ney’s fees and expenses pending appeal. Held:
1. The defendant could not prevail on his claim that the trial court improperly
denied in part his motion for modification by rejecting his request to
modify his unallocated alimony and child support obligation:
a. The trial court did not abuse its discretion by denying the defendant’s
request to modify his unallocated alimony and child support obligation
without first making findings under the child support guidelines; the
defendant having failed to allege in his motion to modify or to raise at
trial his claim that the order imposing the unallocated alimony and
child support obligation substantially deviated from the child support
guidelines, the court properly did not make findings under those guide-
lines once it concluded that there was insufficient evidence of a substan-
tial change in circumstances to warrant modification to the unallocated
alimony and child support obligation.
b. The defendant’s claim that the trial court, in denying in part his motion
for modification, made an erroneous factual finding was unavailing;
that court’s finding that the defendant had admitted in his motion for
modification that he had not experienced a substantial change in circum-
stances was not clearly erroneous and was supported by the record and
the statements of the defendant at trial.
c. The trial court did not abuse its discretion in finding that the defendant
failed to establish a change in circumstances to warrant modification
to the unallocated alimony and child support obligation; the defendant
having failed to state the basis on which he sought modification of
his unallocated alimony and child support obligation, the trial court
reasonably interpreted the defendant’s request to modify his unallocated
alimony and child support obligation as seeking a modification on the
basis of a change in legal or physical custody, which did not occur, and
although the defendant presented evidence of his increasing debt and
filed financial affidavits with the court, the defendant failed to meet his
burden of clearly and definitely establishing a substantial change in his
financial circumstances so as to warrant a modification of his unallo-
cated alimony and child support obligations.
2. The trial court abused its discretion in granting in part the plaintiff’s
motion for clarification and awarding the plaintiff attorney’s fees
incurred defending the defendant’s motion for modification, as the bad
faith exception to the general rule precluding an award of attorney’s
fees was not applicable here; the trial court did not make a finding that
the defendant acted in bad faith by filing his motion for modification,
and by granting in part the defendant’s motion for modification, the
court did not find that the defendant’s claims were entirely without color.
The record was inadequate to review the defendant’s claim that the trial court
abused its discretion by granting the plaintiff’s motion for attorney’s
fees and expenses pending appeal without considering the financial
abilities of the parties, that court not having stated the basis for its
award and the defendant having failed to object to the plaintiff’s motion
or to attend the hearing on the motion.
Argued November 29, 2018–officially released March 26, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield and tried to the court, Gould, J.; judg-
ment dissolving the marriage and granting certain other
relief; thereafter, the court, Wenzel, J., granted in part
and denied in part the defendant’s motion for modifica-
tion of alimony and child support, and the defendant
appealed to this court; subsequently, the court, Wenzel,
J., granted the plaintiff’s motion for clarification and
motion for attorney’s fees pending appeal, and the
defendant filed amended appeals with this court.
Reversed in part; judgment directed.
James Kennedy, self-represented, the appellant
(defendant).
J. David Griffin, for the appellee (plaintiff).
Opinion
ELGO, J. In this postdissolution marital dispute, the
defendant, James Kennedy, appeals from the judgment
of the trial court in connection with certain postjudg-
ment orders entered in favor of the plaintiff, Fatima K.
De Almeida-Kennedy. On appeal, the defendant claims
that the court improperly (1) denied in part his motion
for modification, (2) granted in part the plaintiff’s
motion for clarification, in which she requested, inter
alia, that the court address her prior motion for attor-
ney’s fees, and (3) granted the plaintiff’s motion for
attorney’s fees and expenses pending appeal. We
reverse the judgment of the trial court with respect to
the defendant’s second claim but affirm the judgment
in all other respects.
The following facts and procedural history are rele-
vant to this appeal. The marriage between the parties
was dissolved on August 2, 2010. The judgment of disso-
lution incorporated the parties’ separation agreement,
which provided, inter alia, that the defendant would
pay the plaintiff $1000 per week in unallocated alimony
and child support. On December 9, 2014, that judgment
was modified by agreement of the parties to provide,
inter alia, that the defendant would pay the plaintiff $900
per week in unallocated alimony and child support.
On December 28, 2015, the defendant filed the present
motion for modification in which he requested, inter
alia, that his unallocated alimony and child support
obligation be modified.1 On May 12, 2017, the plaintiff
filed a motion for attorney’s fees, asking the court to
order the defendant to pay her attorney’s fees incurred
defending the defendant’s motion for modification. The
court received evidence on both motions in a trial held
over the course of several days beginning on July 24,
2017, and concluding on August 2, 2017. By order dated
September 29, 2017, the court granted in part and denied
in part the defendant’s motion for modification. Rele-
vant to this appeal, the court denied the defendant’s
request to modify his unallocated alimony and child
support obligation.2
The defendant filed the present appeal on October
27, 2017. On October 30, 2017, the plaintiff filed a motion
for clarification as to the trial court’s September 29,
2017 ruling, requesting, inter alia, that the trial court
issue a ruling on her May 12, 2017 motion for attorney’s
fees. At the same time, the plaintiff also filed a motion
for attorney’s fees and expenses pending appeal. On
November 16, 2017, the trial court held a hearing, which
the defendant did not attend, on the plaintiff’s motion
for clarification and motion for attorney’s fees and
expenses pending appeal. On that same date, the court
(1) granted in part the plaintiff’s motion for clarification,
ordering the defendant ‘‘to pay the sum of $11,250 to
plaintiff’s counsel as a sanction for bringing a baseless
motion,’’ and (2) granted the plaintiff’s motion for attor-
ney’s fees and expenses pending appeal, ordering the
defendant to pay ‘‘an advance of $10,000 as a retainer
to be applied with regard to the appeal from the court’s
order.’’ Subsequently, the defendant filed two new
appeals from the court’s November 16, 2017 orders,
which, pursuant to Practice Book § 61-9, we have
treated as amendments to the defendant’s original
appeal. Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
denied in part his motion for modification by rejecting
his request to modify his unallocated alimony and child
support obligation. We disagree.
We begin by noting that ‘‘[t]he well settled standard
of review in domestic relations cases is that this 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. . . . As has often been
explained, the foundation for this standard is that the
trial court is in a clearly advantageous position to assess
the personal factors significant to a domestic relations
case. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Notwithstanding
the great deference accorded the trial court in dissolu-
tion 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.’’ (Citations
omitted; internal quotation marks omitted.) Gabriel v.
Gabriel, 324 Conn. 324, 336, 152 A.3d 1230 (2016).
The defendant claims that the trial court abused its
discretion by (1) ordering the unallocated alimony and
child support amount of $900 to continue without mak-
ing findings under the child support guidelines, (2) con-
cluding that the defendant admitted there was no
change in circumstances, and (3) concluding that there
was insufficient evidence of a change of circumstances
to justify modification. We address each claim in turn.
A
The defendant claims that the court abused its discre-
tion by ordering that his current obligation to pay unal-
located alimony and child support be continued without
making findings under the child support guidelines. He
claims that his request to modify his unallocated ali-
mony and child support obligation automatically trig-
gers the court’s duty to make specific findings pursuant
to the child support guidelines, even if he made no such
request. We disagree.
‘‘[Section] 46b-86 governs the modification of [an
unallocated alimony and] child support order after the
date of a dissolution judgment. . . . Section 46b-86 (a)3
permits the court to modify [unallocated alimony and]
child support orders in two alternative circumstances.
Pursuant to this statute, a court may not modify [an
unallocated alimony and] child support order unless
there is first either (1) a showing of a substantial change
in the circumstances of either party or (2) a showing
that the final order for child support substantially devi-
ates from the child support guidelines . . . .’’ (Citation
omitted; footnote added; footnote omitted; internal quo-
tation marks omitted.) Weinstein v. Weinstein, 104
Conn. App. 482, 491–92, 934 A.2d 306 (2007), cert.
denied, 285 Conn. 911, 942 A.2d 472 (2008).
In support of his request to modify his unallocated
alimony and child support obligation, the defendant did
not specifically allege either a substantial change in
circumstances or that the December 9, 2014 order
imposing that obligation substantially deviated from the
child support guidelines. See footnote 1 of this opinion.
The court read the defendant’s request as seeking a
modification of his unallocated alimony and child sup-
port obligation on the basis of a change in legal or
physical custody and, in closing argument, the defen-
dant specifically stated that he was ‘‘requesting financial
modifications due to a substantial change in circum-
stance.’’4
On the basis of our review of the record, we conclude
that the defendant never raised before the trial court
his claim that his unallocated alimony and child support
obligation substantially deviated from the child support
guidelines.5 ‘‘It is well established that an appellate
court is under no obligation to consider a claim that is
not distinctly raised at the trial level. . . . [B]ecause
our review is limited to matters in the record, we [also]
will not address issues not decided by the trial court.
. . . The requirement that [a] claim be raised distinctly
means that it must be so stated as to bring to the atten-
tion of the court the precise matter on which its decision
is being asked. . . . The reason for the rule is obvious:
to permit a party to raise a claim on appeal that has
not been raised at trial—after it is too late for the trial
court . . . to address the claim—would encourage
trial by ambuscade, which is unfair to both the trial
court and the opposing party. . . . It therefore follows
that [a] party cannot present a case to the trial court
on one theory and then seek appellate relief on a differ-
ent one . . . .’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Corrarino v. Corrar-
ino, 121 Conn. App. 22, 29–30, 993 A.2d 486 (2010).
The defendant argues that ‘‘[t]he court had a duty to
review the prior record and apply due diligence in mak-
ing the required determination [under the child support
guidelines], even if not requested to do so by either
party.’’ We disagree.
To support this proposition, the defendant relies on
General Statutes § 46b-215b (c), which provides: ‘‘In
any proceeding for the establishment or modification of
a child support award, the child support and arrearage
guidelines shall be considered in addition to and not
in lieu of the criteria for such awards established in
sections 46b-84, 46b-86, 46b-130, 46b-171, 46b-172, 46b-
215, 17b-179 and 17b-745.’’ The defendant argues that
the court was required to consider and make findings
under the child support guidelines when determining
whether his unallocated alimony and child support obli-
gation should be modified. The court, however, consid-
ered the defendant’s request to modify his unallocated
alimony and child support obligation on the basis of a
substantial change in circumstances.
‘‘In the context of a trial court’s consideration of a
motion to modify, the guidelines become relevant only
after a change in circumstances has been shown, if that
is the ground urged in support of modification . . . or
in determining whether the existing child support order
substantially deviates from the guidelines, if that is the
ground urged in support of modification.’’ (Citation
omitted; emphasis added.) Mullin v. Mullin, 28 Conn.
App. 632, 635–36, 612 A.2d 796 (1992). Accordingly,
because the defendant did not raise as a basis for the
court’s review his claim that his unallocated alimony
and child support obligation substantially deviated from
the child support guidelines, the court properly did not
make findings under the child support guidelines when
it determined that there was not sufficient evidence of
a substantial change in circumstances to justify modifi-
cation. Accordingly, the defendant’s claim fails.
B
The defendant next claims that the court abused its
discretion in denying his request to modify his unallo-
cated alimony and child support obligation because its
conclusion that he ‘‘had admitted there was no change
in circumstance’’ was clearly erroneous. We disagree.
‘‘With regard to the trial court’s factual findings, the
clearly erroneous standard of review is appropriate.
. . . A factual finding is clearly erroneous when it is
not supported by any evidence in the record or when
there is evidence to support it, but the reviewing court
is left with the definite and firm conviction that a mis-
take has been made. . . . Simply put, we give great
deference to the findings of the trial court because of
its function to weigh and interpret the evidence before it
and to pass upon the credibility of witnesses.’’ (Internal
quotation marks omitted.) Salzbrunn v. Salzbrunn, 155
Conn. App. 305, 312, 109 A.3d 937, cert. denied, 317
Conn. 902, 114 A.3d 166 (2015).
In its September 29, 2017 order granting in part and
denying in part the defendant’s motion for modification,
with respect to the defendant’s request to modify his
unallocated alimony and child support obligation, the
court stated, ‘‘The defendant admits there is no claim
for any substantial change in circumstance in the
motion . . . .’’ (Emphasis added.) In his brief, the
defendant mischaracterizes the court’s statement by
omitting the court’s specific reference to the defen-
dant’s motion. On the basis of our review of the trial
transcript, including, specifically, the defendant’s state-
ments during closing argument; see footnote 5 of this
opinion; we conclude that the court’s finding as to the
state of the record before it was not clearly erroneous.
Accordingly, the defendant’s claim fails.
C
The defendant next claims that the court abused its
discretion in concluding that there was not sufficient
evidence of a change in circumstances to justify modifi-
cation. We disagree.
‘‘As to the substantial change of circumstances provi-
sion of § 46b-86 (a), [w]hen presented with a motion
for modification, a court must first determine whether
there has been a substantial change in the financial
circumstances of one or both of the parties. . . . Sec-
ond, if the court finds a substantial change in circum-
stances, it may properly consider the motion and . . .
make an order for modification. . . . A party moving
for a modification of a child support order must clearly
and definitely establish the occurrence of a substantial
change in the circumstances of either party that makes
the continuation of the prior order unfair and improper.
. . . 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 parties to
use a motion to modify as an appeal. . . . Rather, [t]he
court has the authority to issue a modification only if
it conforms the order to the distinct and definite
changes in the circumstances of the parties. . . . The
inquiry, then, is limited to a comparison between the
current conditions and the last court order. . . . The
party seeking modification bears the burden of showing
the existence of a substantial change in the circum-
stances.’’ (Citations omitted; internal quotation marks
omitted.) Weinstein v. Weinstein, supra, 104 Conn.
App. 492–93.
As previously indicated, the defendant did not state
precisely on what basis he sought modification of his
unallocated alimony and child support obligation. See
footnote 1 of this opinion. The court reasonably read
the defendant’s request to alter his unallocated alimony
and child support obligation as seeking a modification
on the basis of a change in legal or physical custody;
see footnote 4 of this opinion; a change which did not
occur. The defendant argues that he also ‘‘articulated
a request . . . to modify based on a change in financial
circumstance right through closing argument,’’ which
the plaintiff does not dispute.
In support of his claim that the court improperly
determined that he did not present sufficient evidence
of a substantial change in circumstances based on a
change in ‘‘financial circumstances,’’ the defendant
raises three arguments. First, the defendant contends
that ‘‘[t]he court erred in not taking [his increasing
debt] into account in determining what evidence was
sufficient in its mind to cross the threshold necessary
to consider modifying the financial orders in this case.’’
The defendant argues that ‘‘[t]he second basis for cross-
ing the evidentiary threshold is [the] plaintiff’s veracity
as evidenced by her admittedly fabricated financial affi-
davits.’’ Third, the defendant broadly states that the
financial affidavits he had filed with the court support
his contention that ‘‘his financial circumstances have
changed and not just in terms of net income.’’ He argues
that ‘‘[t]he court had to at least consider this in reaching
a conclusion, but it did not, and that was an abuse of
discretion and plain error.’’ We find the defendant’s
arguments unavailing.
The court found that the defendant did not meet his
burden of showing sufficient evidence of a substantial
change in circumstances. The record supports the
court’s conclusion. The defendant, who moved for the
modification, had the burden of clearly and definitely
establishing the occurrence of a substantial change in
circumstances, here, the ‘‘financial circumstances’’ of
either party. On the basis of our review of the record,
we conclude that the court did not abuse its discretion
in denying the defendant’s request to modify his unallo-
cated alimony and child support obligation.
II
The defendant next claims that the court improperly
granted in part the plaintiff’s motion for clarification
because it abused its discretion in granting the plaintiff
attorney’s fees without making a specific finding of bad
faith.6 We agree.
‘‘We begin by setting forth the standard of review
and legal principles relevant to this claim. Whether to
allow [attorney’s] fees . . . and if so in what amount,
calls for the exercise of judicial discretion. . . . An
abuse of discretion in granting [attorney’s] fees will be
found only if [an appellate court] determines that the
trial court could not reasonably have concluded as it
did. . . .
‘‘In Berzins v. Berzins, [306 Conn. 651, 661, 51 A.3d
941 (2012)], our Supreme Court noted that [t]he com-
mon law rule in Connecticut, also known as the Ameri-
can Rule, is that attorney’s fees and ordinary expenses
and burdens of litigation are not allowed to the success-
ful party absent a contractual or statutory exception.
. . . One such exception is the inherent authority of a
trial court to assess attorney’s fees when the losing
party has acted in bad faith, vexatiously, wantonly or
for oppressive reasons. . . .
‘‘Our Supreme Court explained the narrow scope of
this exception in Maris v. McGrath, [269 Conn. 834,
848, 850 A.2d 133 (2004)], in which [it] upheld a trial
court’s determination that attorney’s fees should be
awarded to the defendant because the trial court had
found both that the case was wholly without merit and
that the plaintiff repeatedly had testified untruthfully
and in bad faith. [Our Supreme Court] reiterated princi-
ples that [it] previously had articulated indicating that
a litigant seeking an award of attorney’s fees for the
bad faith conduct of the opposing party faces a high
hurdle. . . . In Maris, and reiterated in Berzins, the
court quoted its previous decision in CFM of Connecti-
cut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d
1108 (1996), overruled in part on other grounds by State
v. Salmon, 250 Conn. 147, 154–55, 735 A.2d 333 (1999),
stating: We agree, furthermore, with certain principles
articulated by the Second Circuit Court of Appeals in
determining whether the bad faith exception applies.
To ensure . . . that fear of an award of [attorney’s]
fees against them will not deter persons with colorable
claims from pursuing those claims, we have declined
to uphold awards under the bad-faith exception absent
both clear evidence that the challenged actions are
entirely without color and [are taken] for reasons of
harassment or delay or for other improper purposes
. . . and a high degree of specificity in the factual find-
ings of [the] lower courts. . . . Whether a claim is col-
orable, for purposes of the bad-faith exception, is a
matter of whether a reasonable attorney could have
concluded that facts supporting the claim might be
established, not whether such facts had been estab-
lished. . . . To determine whether the bad-faith excep-
tion applies, the court must assess whether there has
been substantive bad faith as exhibited by, for example,
a party’s use of oppressive tactics or its wilful violations
of court orders; [t]he appropriate focus for the court
. . . is the conduct of the party in instigating or main-
taining the litigation. . . . The court held that Maris
makes clear that in order to impose sanctions pursuant
to its inherent authority, the trial court must find both
that the litigant’s claims were entirely without color and
that the litigant acted in bad faith.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Light v. Grimes, 156 Conn. App. 53, 66–68, 111 A.3d
551 (2015).
In the present case, the court granted in part the
plaintiff’s motion for clarification and awarded the
plaintiff attorney’s fees ‘‘as a sanction for bringing a
baseless motion.’’ The court, however, not only failed
to find that the defendant had acted in bad faith, but
also by granting in part the defendant’s motion for modi-
fication, it cannot be said that the court found the defen-
dant’s claims to be entirely without color.7 Accordingly,
we conclude that the court abused its discretion in
granting the plaintiff attorney’s fees for opposing the
defendant’s motion for modification.
III
The defendant’s final claim is that the court improp-
erly granted the plaintiff’s motion for attorney’s fees
and expenses pending appeal because it abused its dis-
cretion by not considering the financial abilities of the
parties. We decline to review that claim due to an inade-
quate record.
On October 30, 2017, the plaintiff filed a motion for
attorney’s fees and expenses pending appeal. The defen-
dant did not object to the plaintiff’s motion and did not
attend the hearing on the motion. At the hearing, the
court stated: ‘‘Hearing no objection, I’ll grant that
motion and order the defendant to pay an advance of
$10,000 as a retainer to be applied toward attorney’s
fees incurred by the plaintiff with regard to the appeal
from the court’s order [on the defendant’s motion to
modify].’’ In its written order, the court did not make
any factual findings or state the basis for its award.
‘‘[General Statutes §] 46b-62 governs the award of
attorney’s fees in dissolution proceedings. That section
provides in part that the court may order either spouse
. . . to pay the reasonable attorney’s fees of the other
in accordance with their respective financial abilities
and the criteria set forth in [General Statutes §] 46b-
82. . . . The criteria set forth in § 46b-82 are the length
of the marriage, the causes for the annulment, dissolu-
tion of the marriage or legal separation, the age, health,
station, occupation, amount and sources of income,
vocational skills, employability, estate and needs of
each of the parties and the award, if any, which the
court may make pursuant to [§] 46b-81, and, in the case
of a parent to whom the custody of minor children has
been awarded, the desirability of such parent’s securing
employment. . . . An award of counsel fees under
[§ 46b-62] calls for the exercise of judicial discretion.
. . . In exercising its discretion, the court must con-
sider the statutory criteria set out in §§ 46b-62 and 46b-
82 and the parties’ respective financial abilities.’’ (Cita-
tion omitted; internal quotation marks omitted.) Blum
v. Blum, 109 Conn. App. 316, 330–31, 951 A.2d 587, cert.
denied, 289 Conn. 929, 958 A.2d 157 (2008).
In the present case, the record does not reveal the
court’s reasoning and whether, or to what extent, it
considered the criteria set forth in § 46b-82. ‘‘It is a well
established principle of appellate procedure that the
appellant has the duty of providing this court with a
record adequate to afford review. . . . [W]hen the deci-
sion of the trial court does not make the factual predi-
cates of its findings clear, we will . . . assume that the
trial court acted properly.’’ (Internal quotation marks
omitted.) Id., 331. Accordingly, due to an inadequate
record, we are unable to address the defendant’s claim
that the court abused its discretion in awarding the
plaintiff attorney’s fees and expenses pending appeal.
The judgment is reversed only with respect to the
award of attorney’s fees incurred on the motion for
modification and the case is remanded with direction
to vacate that order. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The defendant’s motion for modification, as relevant to his request to
modify his unallocated alimony and child support obligation, stated: ‘‘Para-
graph 4 of the court’s December 9, 2014 order provides, ‘The parties agree
that the [defendant’s] obligation to pay unallocated support and alimony
shall be reduced to $900 per week.’ Neither the original August 2, 2010 court
order nor the two subsequent December 9, 2014 orders modifying the original
order provide for a term of the unallocated support period. Accordingly,
[the defendant] seeks an order immediately terminating the unallocated
support term and the entry of one of the following child support orders: 1.
In the event that physical custody of both children is awarded to the [defen-
dant], the following order shall enter: ‘The [plaintiff] shall pay child support
according to the guidelines in the amount of $x.00 per week to be paid bi-
weekly.’ 2. In the event that physical custody is not modified, ‘The [defendant]
shall pay the [plaintiff] child support in the amount of $x.00 per week
according to the guidelines to be paid bi-weekly.’ ’’
2
The court’s order stated in relevant part: ‘‘The third proposed modifica-
tion seeks modification of the unallocated support and alimony award to
[the] plaintiff. The defendant admits there is no claim for any substantial
change in circumstance in the motion and the court finds there was no
sufficient evidence of such in any event. This proposed modification is
denied.’’
3
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 . . . may, at any time
thereafter, be . . . modified by the court upon a showing of a substantial
change in the circumstances of either party or upon a showing that the
final order for child support substantially deviates from the child support
guidelines established pursuant to section 46b-215a . . . .’’
4
In closing argument, the following colloquy between the court and the
defendant occurred:
‘‘[The Defendant]: One of the issues that is before the court is the issue
of unallocated, and terminating unallocated.
‘‘The Court: That’s your third requested modification.
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: I took that to be premised on if there’s a change in sole legal
custody, and—and/or a change in the primary physical custody that we
would need to revisit the child support payments. Was that what that
was about?
‘‘[The Defendant]: I’m sorry, Your Honor. Absolutely—it’s not only that,
but also under what I understand is [§] 46b-86 (a). In other words, even if
custody doesn’t change, I’m still requesting financial modifications due to
a substantial change in circumstance.’’
5
In his reply brief, the defendant asserts that he raised ‘‘the second basis
for modification’’ at trial. He cites to his closing argument, during which
the following colloquy occurred:
‘‘[The Defendant]: I am asking the court to take into account what my
present financial circumstances are, and to order a modification on—
‘‘The Court: And is that shown in your request for modification of the
child support? Can you just show me where you say there’s been a substantial
change in my financial circumstances, and on that basis I’m asking you to
change the ordered support?
‘‘[The Defendant]: It was—to answer your question, no, Your Honor, it was
something that I had, throughout this process, understood that in applying
for the modification and including the financials, I had never understood
that it was something that wouldn’t come up in argument, and that my
present circumstances would not be—could—might not be viewed. So I—
I understand what Your Honor is saying. It’s my understanding from the
discussions had with [the plaintiff] throughout this process, it would—it
would very much surprise me if—if it weren’t something that—my under-
standing, Your Honor, was in providing in the F.M. 220 [worksheet for
the Connecticut child support and arrearage guidelines] and the updated
financial affidavit, it was my understanding that I didn’t have to raise the
issue of substantial change because the statute . . . .
‘‘The Court: What statute?
‘‘[The Defendant]: I’m sorry, it’s two statutes, Your Honor, 46b-86 (a) and
then it’s—I’m not sure if I have it correct, but it’s in 46b-86, where it states
that if your income changes by greater than 15 percent, then there’s a
rebuttable presumption that it’s a—it’s a substantial change in financial
circumstance. I did not anticipate—
‘‘The Court: No, but that doesn’t address my concern, which is where do
you put the other side on notice that you’re claiming there’s a substantial
change in circumstance and that you’re asking for a change in child support
based on that.
‘‘[The Defendant]: I had understood, Your Honor, throughout this process
of 20 months that it was never something that was unclear. . . . And my
understanding, Your Honor, by filing the F.M. 220 [worksheet for the Con-
necticut child support and arrearage guidelines] and filing the—the financial
affidavit, it was my understanding that it could be put before the court at
any time even up until now that the financial circumstances have changed.’’
We note that the following colloquy, which the defendant does not cite
to in his brief, also occurred:
‘‘The Court: And where has that been—where’s the evidence on a substan-
tial change in circumstance?
‘‘[The Defendant]: Your Honor, during my testimony, and during my cross-
examination, it was introduced both financial affidavits that are current
versus 2014, and also income tax returns for 2014, 2015, 2016. Your Honor,
I also submitted the—the Connecticut Guidelines for statutory child support.
And if Your Honor—as Your Honor’s reviewing that, it—it shows that the
amount—the weekly amount including a 20 percent arrearage would cur-
rently be $456 weekly under the guidelines. And [the plaintiff’s attorney], I
know, has made arguments and—and suggested that deductions on the—
on my federal tax return have some bearing on the financial affidavit. But,
Your Honor, if you look at the calculations, they don’t. Even—even if Your
Honor disregarded my wife as a partner [in my business], which I don’t
believe would be valid or—or right—but even if Your Honor did disregard,
even with an arrearage the weekly amount would be $688.80 according to
the—according to the guidelines.’’
On the basis of our review of the transcript of the trial, however, it cannot
fairly be said that these statements made in closing arguments served to
advance an argument that the defendant should be granted a modification
because the court’s order of unallocated alimony and child support substan-
tially deviated from the presumptive amount under the child support guide-
lines. See Shamitz v. Taffler, 145 Conn. App. 132, 136 n.5, 75 A.3d 62 (2013).
6
The defendant also argues that the court improperly granted the plaintiff
attorney’s fees through a motion for clarification. Because we agree with
the defendant that the court abused its discretion by not making a specific
finding of bad faith, we need not address this argument.
7
The defendant also claims that the court erred to the extent that it based
its decision to award the plaintiff attorney’s fees on Article XVII of the
separation agreement. As a second basis for granting the plaintiff attorney’s
fees, the court stated at the hearing on the plaintiff’s motion for clarification
and motion for attorney’s fees pending appeal: ‘‘Under Article 17 of the
decree it provides that in the event either party has breached any agreement,
the offending party shall pay to the other the attorney’s fees and court
costs incurred in the enforcement of this provision. I typically read those
provisions to include not only the enforcement, but also the defense of
claimed violations of the agreement, especially when they’re so lacking
in merit.’’
Although the defendant does not explicitly raise this concern, we note
that the plaintiff never claimed that the defendant breached the separation
agreement in her motion for attorney’s fees or motion for clarification in
which she reasserted her motion for attorney’s fees. Rather, the plaintiff at
all times sought attorney’s fees pursuant to General Statutes § 46b-62. As
our Supreme Court has explained, ‘‘due to the adversarial nature of our
judicial system, [t]he court’s function is generally limited to adjudicating
the issues raised by the parties on the proof they have presented and
applying appropriate procedural sanctions on motion of a party.’’ (Emphasis
in original; internal quotation marks omitted.) Vertex, Inc. v. Waterbury,
278 Conn. 557, 564, 898 A.2d 178 (2006). By raising this issue sua sponte at
the hearing, which the defendant did not attend, the defendant was not
afforded adequate notice of the issue addressed by the court. See Pritchard
v. Pritchard, 103 Conn. App. 276, 288, 928 A.2d 566 (2007) (parties not
afforded ‘‘adequate notice of the issues the court intended to address’’).
Furthermore, the plaintiff does not defend, support, or address this issue
on appeal. In light of the foregoing, we conclude that the court improperly
found for the plaintiff on this alternative ground. See Somers v. Chan, 110
Conn. App. 511, 528–29, 955 A.2d 667 (2008) (court improperly reached
issues not before it); Haynes Construction Co. v. Cascella & Son Construc-
tion, Inc., 36 Conn. App. 29, 33–39, 647 A.2d 1015 (same), cert. denied, 231
Conn. 916, 648 A.2d 152 (1994).