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COURTNEY ROBACZYNSKI v. MARC A.
ROBACZYNSKI
(AC 36030)
Beach, Sheldon and Norcott, Js.
Argued May 21—officially released September 23, 2014
(Appeal from Superior Court, judicial district of
Litchfield, Danaher, J.)
Marc Robaczynski, self-represented, the appellant
(defendant).
Peter M. Berry, for the appellee (plaintiff).
Opinion
NORCOTT, J. The defendant, Marc A. Robaczynski,
appeals from the judgment of the trial court denying his
motion for postjudgment modification of unallocated
family support and other financial orders. On appeal,
the defendant claims that (1) the court improperly
found that the unallocated family support order was
nonmodifiable, and (2) the court improperly found that
no substantial change in circumstances existed to war-
rant modification of either the unallocated family sup-
port order or the other financial orders pursuant to
General Statutes § 46b-86 (a).1 We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff, Courtney Robaczynski,
and the defendant were married on March 22, 2003, and
had three children during the marriage. The plaintiff
initiated divorce proceedings on July 13, 2011. After a
contested divorce proceeding, the court rendered judg-
ment dissolving the marriage on October 11, 2012. The
judgment included custodial and financial orders. The
court ordered, in relevant part, that the defendant pay
to the plaintiff ‘‘$1000 per week as unallocated family
support for a period of two years. . . . Thereafter, and
for two additional years, the defendant shall pay $200
per week to the plaintiff as alimony. . . . The foregoing
orders regarding unallocated family support and ali-
mony are nonmodifiable.’’
The court also ordered that the defendant provide
health insurance for the three minor children and pay
54 percent of their unreimbursed medical expenses. In
the event that the defendant received a bonus from his
employer, the plaintiff would receive a 22.4 percent
share. The court also ordered that the defendant pay
$10,000 of the plaintiff’s attorney’s fees.
Additionally, the court required the defendant to pay
50 percent of the costs of the mortgage and taxes on
the marital residence until it was sold.2 The defendant
was also responsible for 75 percent of the costs of
preparing a qualified domestic relations order to effect
the equitable division of the parties’ bank accounts,
deferred compensation accounts, and restricted stock.
Neither party appealed from the judgment.
On May 7, 2013, the defendant filed a motion for
modification of the unallocated family support3 and the
other financial orders in the dissolution decree, includ-
ing the orders regarding the health insurance and unre-
imbursed medical expenses for the children, the
payment of a percentage of any future employment
bonuses to the plaintiff, the payment of $10,000 of the
plaintiff’s attorney’s fees, the payments regarding the
marital residence, and the costs of preparing a qualified
domestic relations order. On June 26, 2013, after a hear-
ing, the court denied the defendant’s motion for modifi-
cation without stating the reason for its decision.
On July 15, 2013, the defendant filed a motion for
rehearing and reconsideration, which the court granted
on July 30, 2013. The court heard reargument on August
8, 2013, and adhered to its previous decision to deny
the defendant’s motion for modification. The court con-
cluded that the unallocated family support order was
nonmodifiable and, furthermore, that ‘‘[t]he facts do
not show a substantial change in circumstance[s] that
would require modification, even if the order [was]
modifiable.’’ The court also found that the other finan-
cial orders detailed in the defendant’s motion for modifi-
cation were not properly before it. This appeal followed.
I
We first address the defendant’s argument that the
court improperly found that the unallocated family sup-
port order was nonmodifiable. Specifically, the defen-
dant argues that the dissolution decree is inconsistent
with respect to the modifiability of the support orders
and, therefore, the judgment permits modification.
We disagree.
The defendant first challenges the court’s construc-
tion of the judgment ordering him to pay unallocated
family support. ‘‘The construction of a judgment is a
question of law for the court.’’ (Internal quotation marks
omitted.) Burke v. Burke, 94 Conn. App. 416, 421, 892
A.2d 964 (2006). ‘‘We review such questions of law de
novo.’’ Id.
In its initial statement of the unallocated family sup-
port order, the dissolution decree states that ‘‘[t]he fore-
going orders . . . are nonmodifiable.’’ The decree’s
final section, entitled ‘‘Final Orders,’’ reiterates the unal-
located family support order but does not include the
nonmodifiability language. The defendant argues that
the court’s failure to repeat the nonmodifiability lan-
guage in the final orders section of the decree renders
the dissolution judgment internally inconsistent with
respect to the modifiability of the unallocated family
support order and, therefore, the judgment must be
construed to permit modification. We are not per-
suaded.
‘‘As a general rule, judgments are to be construed in
the same fashion as other written instruments. . . .
The determinative factor is the intention of the court
as gathered from all parts of the judgment. . . . The
judgment should admit of a consistent construction as
a whole. . . . To determine the meaning of a judgment,
we must ascertain the intent of the court from the
language used and, if necessary, the surrounding cir-
cumstances.’’ (Citation omitted; internal quotation
marks omitted). Burke v. Burke, supra, 94 Conn. App.
421. ‘‘In determining whether the alimony award is mod-
ifiable or nonmodifiable, only the dissolution decree
itself may be used.’’ Rau v. Rau, 37 Conn. App. 209,
212, 655 A.2d 800 (1995).
Section 46b-86 (a) provides in relevant part: ‘‘Unless
and to the extent that the decree precludes modifica-
tion, any final order for the periodic payment of perma-
nent alimony or support . . . may, at any time
thereafter, be . . . modified by the court upon a show-
ing of a substantial change in the circumstances of
either party . . . .’’ ‘‘This statutory provision suggests
a legislative preference favoring the modifiability of
orders for periodic alimony . . . [and requires that] the
decree itself must preclude modification for this relief
to be unavailable. . . . If an order for periodic alimony
is meant to be nonmodifiable, the decree must contain
language to that effect. . . . Such a preclusion of modi-
fication must be clear and unambiguous.’’ (Citations
omitted; internal quotation marks omitted). Rau v. Rau,
supra, 37 Conn. App. 211–12. ‘‘There is no given set of
words that must be used to preclude modification; an
order is nonmodifiable if the decree distinctly and
unambiguously expresses that it is.’’ Sheehan v. Balasic,
46 Conn. App. 327, 332, 699 A.2d 1036 (1997), appeal
dismissed, 245 Conn. 148, 710 A.2d 770 (1998).
We conclude that the dissolution decree contains the
clear and unambiguous language required to preclude
modification of the unallocated family support order.4
The decree expressly states that ‘‘[t]he foregoing orders
regarding unallocated family support and alimony are
nonmodifiable.’’ We construe judgments as a whole;
Burke v. Burke, supra, 94 Conn. App. 421; and the lack
of nonmodifiability language in the decree’s ‘‘Final
Orders’’ section does not negate the court’s unmistak-
able intent to preclude modification. The unallocated
family support order is nonmodifiable and, therefore,
the court properly denied the defendant’s motion for
modification with respect to that order.
II
The defendant next claims that the trial court improp-
erly found that no substantial change in circumstances
existed to warrant modification of either the unallo-
cated family support order or the other financial orders.
We disagree. The unallocated family support order is
nonmodifiable, as discussed previously in this opinion,
and, therefore, we need not address that order. The
defendant’s motion for modification also included five
additional orders, which required him to pay for health
insurance, a portion of the unreimbursed medical
expenses for the children, a percentage of any future
employment bonuses to the plaintiff, a portion of the
plaintiff’s attorney’s fees, the costs associated with the
marital residence, and a share of the costs of preparing
a qualified domestic relations order.
The defendant first claims that the trial court improp-
erly concluded that these financial orders could not be
modified. He argues that these five additional orders
constitute ‘‘support’’ orders and are therefore modifi-
able. The plaintiff argues that the orders are property
assignments and are therefore nonmodifiable. We need
not determine whether the court properly characterized
these payments as property or support because we con-
clude that the court properly determined that, even if
modifiable, no grounds for modification existed.
‘‘An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . 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.’’ (Internal quotation
marks omitted.) Schwarz v. Schwarz, 124 Conn. App.
472, 476, 5 A.3d 548, cert. denied, 299 Conn. 909, 10
A.3d 525 (2010).
Section 46b-86 (a), which governs the modification
of support orders, provides in relevant part: ‘‘[A]ny final
order for the periodic payment of permanent alimony
or support . . . may, at any time thereafter, be contin-
ued, set aside, altered or 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 [General
Statutes §] 46b-215a.’’ Support orders may be modified
only upon a showing of either a substantial change
in the circumstances of either party or a substantial
deviation from the child support guidelines. Weinstein
v. Weinstein, 104 Conn. App. 482, 491–92, 934 A.2d 306
(2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).
‘‘The party seeking modification bears the burden of
showing the existence of a substantial change in the
circumstances [of either party].’’ (Internal quotation
marks omitted.) Schwarz v. Schwarz, supra, 124 Conn.
App. 476.
‘‘[I]f the court finds a substantial change in circum-
stances, it may properly consider the motion and, on
the basis of the . . . [General Statutes] § 46b-82 crite-
ria, make an order for modification.’’ (Internal quotation
marks omitted.) O’Donnell v. Bozzuti, 148 Conn. App.
80, 87, 84 A.3d 479 (2014). ‘‘More specifically, these
criteria, outlined in . . . § 46b-82, require the court to
consider the needs and financial resources of each of
the parties . . . as well as such factors as the causes
for the dissolution of the marriage and the age, health,
station, occupation, employability and amount and
sources of income of the parties.’’ (Internal quotation
marks omitted.) Id., 476–77. ‘‘Trial courts have broad
discretion in deciding motions for modification.’’ Id.,
476.
The defendant argues that the court improperly found
that no substantial change in circumstances existed to
warrant modification of the financial orders. Specifi-
cally, he argues that the court improperly failed to con-
sider the change in both the plaintiff’s and the
defendant’s financial positions and also improperly
failed to consider all of the plaintiff’s assets and her
earning capacity in filling out a child support guideline
worksheet. We disagree.
The court’s August 8, 2013 oral decision, following the
rehearing and reargument on the defendant’s motion for
modification, demonstrates that the court did consider
the change in the parties’ financial positions and the
plaintiff’s assets and earning capacity. The court
acknowledged that ‘‘[t]here does appear to be a change
in [the plaintiff’s] estate,’’ but also found that ‘‘that
change, alone, would be insufficient at this time’’ to
warrant modification. Additionally, the court noted that
there was an increase in the plaintiff’s net worth, but
that there was ‘‘no evidence . . . as to how her station
in life has changed.’’ The court also considered and
rejected the defendant’s allegations that the plaintiff
had failed to meet her earning capacity. The court noted
that ‘‘[t]here are good explanations, including the pri-
mary care responsibility of three children, [the plain-
tiff’s] nursing studies, all of which justify the fact that
she is not earning funds as she was when the [c]ourt
entered its orders in October of 2012, and even at that
time her income was nominal.’’ The court concluded
that ‘‘[t]he facts do not show a substantial change in
circumstance[s] that would require modification
. . . .’’
On the basis of the facts presented, we conclude that
the court could have reasonably determined that, even
if modifiable, there were no grounds for modification
of the financial orders. Contrary to the defendant’s
assertions, the court properly considered the appro-
priate factors for modification, including the parties’
income, assets and earning capacity. See Schwarz v.
Schwarz, supra, 124 Conn. App. 477. We conclude that
the court did not abuse its discretion in finding that no
grounds for modification existed and, therefore, the
court properly denied the defendant’s motion for modi-
fication.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims that the court improperly denied his request
for mandatory disclosure and production. There is nothing in the record to
indicate that the trial court issued a ruling on the defendant’s request. ‘‘[T]his
court cannot review a nonexistent ruling.’’ Augeri v. Planning & Zoning
Commission, 24 Conn. App. 172, 179, 586 A.2d 635, cert. denied, 218 Conn.
904, 588 A.2d 1381 (1991). Therefore, we will not review this claim.
2
Although the divorce decree did not order the parties to pay half of the
property taxes each, subsequently the parties mutually agreed to do so.
3
The defendant’s motion for modification did not specifically request
modification of the unallocated support order, but did request modification
of child support and alimony. The court treated the motion as one to modify
unallocated family support. ‘‘[A]n unallocated family support order incorpo-
rates alimony and child support without delineating specific amounts for
each component . . . .’’ Tomlinson v. Tomlinson, 305 Conn. 539, 558, 46
A.3d 112 (2012).
4
We note that the parties have referenced Tomlinson v. Tomlinson, 305
Conn. 539, 46 A.3d 112 (2012), and Guille v. Guille, 196 Conn. 260, 492 A.2d
175 (1985), in their briefs. In both of these cases, our Supreme Court upheld
the trial court’s modification of child support, despite language in the dissolu-
tion decree precluding modification, in order to protect the interests of the
children. Tomlinson v. Tomlinson, supra, 542, 555; Guille v. Guille, supra,
268. The facts of this case do not require us to follow Tomlinson or Guille.