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BETHANY FLOOD v. ROBERT FLOOD
(AC 42477)
Prescott, Devlin and Sheldon, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from judgment of the trial court, which
granted the plaintiff’s motion for a modification of the defendant’s child
support obligation. The parties’ separation agreement, which had been
incorporated into the dissolution judgment, required the defendant to
pay the cost of the private elementary school education for the parties’
minor child through the conclusion of the fifth grade. At the time the
separation agreement became enforceable, the annual cost of the child’s
private school tuition was $55,000. After the child completed the fifth
grade and was enrolled in public school, the plaintiff sought a modifica-
tion of the defendant’s child support obligation on the grounds that
there had been a substantial change in circumstances because, inter
alia, the child was no longer attending private school. The defendant also
filed a motion for modification of child support, in which he requested a
decrease in his court-ordered obligation on the ground that the plaintiff’s
income had increased since the date of the last support order. The trial
court determined that the parties had contemplated that the plaintiff
accepted a lower weekly child support amount in return for the defen-
dant’s being responsible for paying 100 percent of the child’s private
school tuition. The court further determined that, because the child had
stopped attending private school, the savings for the defendant in tuition
represented a substantial change of circumstances that entitled the
plaintiff to a modification in child support. The court awarded the plain-
tiff $1246 in weekly child support, which was the maximum presumptive
amount prescribed by the child support guidelines. The court order was
silent as to the defendant’s motion for modification. On appeal, the
defendant claimed, inter alia, that the trial court erred in finding that
there had been a substantial change in circumstances and that the court
had ordered an improper wealth transfer between the parties because
it failed to consider or respond to the needs of the child. Held:
1. The trial court’s finding that there had been a substantial change in
the defendant’s financial circumstances was not clearly erroneous: the
expiration of the defendant’s court-ordered obligation to pay for the
child’s private schooling removed an encumbrance on his assets that
made an additional $55,000 per year available to him for all purposes,
including the payment of child support, and, although the separation
agreement did not expressly link the amount of the plaintiff’s initial
child support award to the defendant’s agreement to pay for the child’s
private schooling or entitle the plaintiff to reconsideration of that order
once the defendant’s payment obligation ended, the court reasonably
determined that the amount of that award should be reconsidered in light
of the termination of the defendant’s private school payment obligation.
2. The trial court did not abuse its discretion in determining that the amount
of the child support award would be $1246 per week; the court did not
determine the amount of the award until after it conducted an extensive
evidentiary hearing and considered the arguments of counsel, the parties’
motions, memoranda of law and testimony, and all relevant rules, statu-
tory authority and case law, and the court was not required to cite
additional reasons for its increase in the defendant’s child support obliga-
tion, as its order was consistent with statutory (§ 46b-84 (d)) criteria
and within the range between the minimum and maximum support
amounts established by the child support guidelines.
3. The defendant could not prevail on his claim that the trial court erred
by failing to consider and rule on his motion for modification of his
child support obligation; although the trial court never made a formal
ruling on the defendant’s motion, it expressly acknowledged that the
motion was before it when it granted the plaintiff’s motion for modifica-
tion, which effectively and intentionally denied the defendant’s motion,
and, as the defendant conceded to this court that his motion was effec-
tively denied, he could not be granted relief, as he failed to raise a
substantive challenge to the ruling.
Argued February 6—officially released July 14, 2020
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Shay,
J.; judgment dissolving the marriage and granting cer-
tain other relief; thereafter, the court, Truglia, J.,
granted the plaintiff’s motion for modification of child
support and rendered judgment thereon, and the defen-
dant appealed to this court. Affirmed.
Gary I. Cohen, for the appellant (defendant).
Eric R. Posmantier, with whom was Kimberly A.
Stokes, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, Robert Flood, appeals
from the judgment of the trial court in favor of the
plaintiff, Bethany Flood, on her postjudgment motion
for modification of child support. The defendant claims
that the trial court erred in granting the plaintiff’s
motion (1) by predicating its ruling on a finding that
there had been a substantial change in circumstances
since the date of the last court order requiring him to pay
child support, as agreed to by the parties and entered
by the court as part of the judgment dissolving their
marriage, (2) by failing to consider or respond to the
needs of the child when fashioning its modified child
support order, and thus merely ordering an improper
wealth transfer between the parties, and (3) by entering
its modified order without ruling on the defendant’s
conflicting, simultaneously argued motion for modifica-
tion of child support. We reject the defendant’s claims
and, thus, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The parties were
married on June 5, 2004. On November 7, 2014, the
trial court, Shay, J., rendered judgment dissolving the
parties’ marriage. The judgment of dissolution incorpo-
rated by reference the terms of a written separation
agreement between the parties, wherein they agreed,
inter alia, to the division of their marital property, to
the alimony and child support obligations between
them, and to all arrangements for the parenting and
schooling of their minor daughter (child). Section 4.1
of the separation agreement provides, more particu-
larly, that the defendant would provide for the financial
support of the child in three ways: (1) by making a
weekly payment to the plaintiff of $464 in child support;
(2) by continuing to provide health insurance for the
child, and paying 80 percent of any unreimbursed medi-
cal expense that might be incurred for her benefit; and
(3) by paying all expenses for the child’s enrollment in
private elementary school through the conclusion of
fifth grade at Pear Tree Point School or another school
mutually agreed to by the parties.1
At the time the separation agreement became
enforceable under the judgment of dissolution, the child
was enrolled in the fourth grade at Pear Tree Point
School in Darien, where the cost of her attendance was
approximately $55,000 per year. The child completed
the fifth grade at Pear Tree Point School in June, 2016.
Thereafter, in September, 2016, the child was enrolled
in a public middle school in Greenwich.
On December 18, 2017, the plaintiff filed a motion
for modification of child support. The plaintiff alleged
in her motion for modification that there had been a
substantial change in circumstances since the date of
the last child support order because (1) ‘‘the defendant’s
total compensation from employment has increased in
one or more of the years following the entry of the last
order,’’ and (2) ‘‘the minor child is no longer attending
private school.’’
On October 1, 2018, the defendant filed his own
motion for modification of child support, in which he
requested a decrease in his court-ordered obligation to
pay child support to the plaintiff. In support of his
motion for modification, the defendant alleged that
there had been a substantial change in the plaintiff’s
financial circumstances since the date of the court’s
last child support order because the plaintiff’s income
had increased in that period by 188 percent. The defen-
dant claimed, more specifically, that whereas the plain-
tiff’s gross base pay as a part-time nurse, on the date
of the judgment of dissolution, had been $186.65 per
week, or $9705.80 per year, her gross base pay on the
date of his motion for modification, in her then current
position as a full-time nurse, was $537 per week, or
$27,924 per year. The defendant further alleged that
whereas, when the judgment of dissolution was ren-
dered, the plaintiff’s total expenses for the child had
been $882.90 per week, or $45,910.80 per year, her
expenses for the child had since fallen by 43 percent,
to a total of $504 per week, or $26,208 per year.
In her memorandum of law in support of her motion
for modification, the plaintiff not only reiterated her
claims that there had been a substantial change in cir-
cumstances since the date of the judgment of dissolu-
tion due to the defendant’s intervening increase in
income and loss of responsibility to pay for the child’s
private schooling, but argued that the defendant had
conceded that there had been a substantial change in
circumstances in that interval by filing his own motion
for modification of child support. The plaintiff con-
cluded her memorandum by arguing that, under Dow-
ling v. Szymczak, 309 Conn. 390, 407, 72 A.3d 1 (2013),
an increase in child support was warranted because
the initial child support order was not accomplishing
the goal of ‘‘Connecticut’s [i]ncome [s]hares [m]odel
for child support, [under which a] child [of separated
parents] should receive the same proportion of parental
income [after her parents’ separation] as [she] would
have received if [her] parents [still] lived together.’’
(Internal quotation marks omitted.)
The defendant filed a memorandum of law in opposi-
tion to the plaintiff’s motion for modification, in which
he argued that the plaintiff could not meet her burden
of demonstrating that a substantial change in circum-
stances had occurred since the date of the last court
order. Specifically, the defendant argued that there had
been no substantial change in his financial circum-
stances since that date because there had not been a
substantial change in his net income in that time frame.
Child support, he argued, must be calculated on the
basis of the parties’ net income, not their disposable
income. Therefore, he argued, the child’s enrollment in
public school meant only that she had one less need
for financial support at the time of the plaintiff’s motion
than she had when the judgment of dissolution was
rendered, thus providing good reason for him to pay
less, not more, money in child support than he was
required to pay under the last court order. The plaintiff,
he therefore concluded, was improperly using her
motion for modification to make a ‘‘cash grab in the
form of child support . . . .’’
On December 17, 2018, the court, Truglia, J., con-
ducted a full day hearing on the parties’ conflicting
motions for modification. At that hearing, the plaintiff
argued once again that there had been a substantial
change in the defendant’s financial circumstances since
the date of the last child support order because (1) his
income had increased in the interim and (2) the child
was no longer attending private elementary school, and
thus the defendant was no longer obligated to pay for
her private schooling. The plaintiff contended that
because the parties’ combined net weekly income
exceeded $4000, a proper award of child support under
the child support guidelines could be not less than $443
per week nor more than $1246 per week, as determined
by our Supreme Court in Dowling v. Szymczak, supra,
309 Conn. 390, and Maturo v. Maturo, 296 Conn. 80,
995 A.2d 1 (2010). Accordingly, the plaintiff requested
the court to order an increase in the defendant’s child
support obligation to $1246 per week, the maximum
amount awardable without deviating from the guide-
lines. In support of her position, the plaintiff argued
that, although the child was entitled to receive up to a
certain percentage of her father’s income so that she
might enjoy the same luxuries after her parents sepa-
rated as she would have enjoyed if they had remained
together, the current child support award did not give
her that opportunity because it only enabled her to
enjoy such luxuries when she was with the defendant.
In response to the plaintiff’s arguments, the defen-
dant contended that the alleged increase in his income
since the date of the last court order and the intervening
termination of his obligation to pay for the child’s pri-
vate schooling did not support a finding of a substantial
change in circumstances. As for his income, he testified
that, in the period from 2014, when the separation agree-
ment became enforceable under the judgment of disso-
lution, until 2018, when the plaintiff filed her motion
for modification, his income had increased by only 3
percent. As for the termination of his obligation to pay
for the child’s private schooling, he argued that even
though he was no longer required to pay approximately
$55,000 per year for such schooling, the termination
of that payment obligation could not be considered a
substantial change in circumstances because it did not
result in any change in his net income. Child support,
he argued, must be based on the parties’ net income,
not on the manner in which they used that net income
after they received it. Therefore, he argued, just because
he had ‘‘more cash in [his] wallet’’ or ‘‘[m]ore disposable
income’’ after his obligation to pay for the child’s private
schooling came to an end, his access to such increased
funds did not constitute a substantial change in circum-
stances of the sort required to support a modification
of his child support obligation.
In support of his own motion for modification, the
defendant reargued his pleaded claim that the amount
of his child support obligation should be decreased
because, since the time of the divorce, the plaintiff’s
income had increased by 188 percent while her
expenses for the child had decreased by 43 percent.
On January 2, 2019, the court granted the plaintiff’s
motion for modification by issuing a written order
requiring the defendant to pay the plaintiff $1246 per
week in child support, as she had requested, retroactive
to January 8, 2018—the date on which the defendant
had been served with the plaintiff’s motion. In its order,
the court explained the basis for its ruling as follows:
‘‘The court has carefully considered all of the evidence
presented by both parties in this case, including the
testimony of both parties and the financial records pre-
sented in support of and in opposition to the plaintiff’s
motion to modify child support.
‘‘The court finds that the plaintiff has carried her
burden of proof by a preponderance of the evidence
that there has been a substantial change in circum-
stances since the initial child support order was entered
in November, 2014. The court finds that the parties
contemplated that the plaintiff accepted a lower weekly
child support amount in return for the defendant being
responsible for paying 100 percent of the private school
tuition and other school costs for the parties’ daughter.
At the time of judgment, the daughter attended the Pear
Tree Point School. The child stopped attending the Pear
Tree Point School in June, 2016, and began attending
a public school . . . in the fall of 2016. The savings in
annual private school tuition represents a substantial
change of circumstances entitling the plaintiff to a modi-
fication in child support. . . .
‘‘[T]aking into consideration the respective gross and
after-tax incomes of the parties and the parties’ respec-
tive assets, the court finds that the proper weekly child
support order is the maximum presumptive amount as
prescribed by the guidelines.’’ Although the trial court’s
order was silent as to the defendant’s motion for modifi-
cation, the defendant never sought judicial relief to
clarify the nature or scope of the ruling set forth in that
order. This appeal followed.
I
On appeal, the defendant first claims that the trial
court erred in granting the plaintiff’s motion for modifi-
cation by finding that there had been a substantial
change in circumstances since the date of the judgment
of dissolution, under which the last court order requir-
ing him to pay child support to the plaintiff went into
effect. The defendant claims, more particularly, that the
court erred in finding that there had been a substantial
change in his financial circumstances when his obliga-
tion to pay for the child’s private schooling came to an
end based on a finding that the parties intended to link
the plaintiff’s initial acceptance of the lowest presump-
tive amount of child support awardable under the guide-
lines to the defendant’s agreement to pay all expenses
for the child’s private schooling through the fifth grade.
The defendant claims that the trial court erred in making
such a finding as to the parties’ intent because there is
no language in the agreement expressing such an intent,
there is no other evidence in the record to support such
a finding, and the parties did not base their arguments
for or against the plaintiff’s motion for modification on
the presence or absence of any such intent.
The plaintiff does not dispute the defendant’s claim
that she did not base her motion for modification on
allegations or proof that the parties intended to base
the initial amount of her child support award on the
defendant’s willingness to pay for the child’s private
schooling through the fifth grade. She contends, how-
ever, that although the court undeniably made such
a finding, that finding was not central to its ultimate
determination that there had been a substantial change
in the defendant’s financial circumstances since the
date of the judgment of dissolution. Instead, she argues,
the court’s finding of a substantial change in circum-
stances was based principally on the proven fact that
the termination of the defendant’s private school pay-
ment obligation for the child had made a considerable
sum of previously committed money—specifically,
$55,000 per year in after-tax dollars—available for his
discretionary use since the child completed the fifth
grade, thereby substantially increasing his usable assets
and materially improving his financial condition since
that time. For the following reasons, we agree with the
plaintiff that the trial court’s finding of a substantial
change in circumstances must be upheld.
We begin by setting forth the applicable standard of
review. ‘‘The scope of our review of a trial court’s exer-
cise of its broad discretion in domestic relations cases
is limited to the questions of whether the [trial] court
correctly applied the law and could reasonably have
concluded as it did. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Neverthe-
less, we may reverse a trial court’s ruling on a modifica-
tion motion if the trial court applied the wrong standard
of law.’’ (Internal quotation marks omitted.) Fox v. Fox,
152 Conn. App. 611, 619, 99 A.3d 1206, cert. denied, 314
Conn. 945, 103 A.3d 977 (2014).
General Statutes § 46b-86 governs the modification
of an alimony or child support order after the date of
a dissolution judgment. Section 46b-86 (a) provides that
a final order for alimony or child support may be modi-
fied by the trial court upon a showing of a substantial
change in the circumstances of either party. ‘‘Under that
statutory provision, the party seeking the modification
bears the burden of demonstrating that such a change
has occurred. . . . To obtain a modification, the mov-
ing party must demonstrate that circumstances have
changed since the last court order such that it would
be unjust or inequitable to hold either party to it.
Because the establishment of changed circumstances
is a condition precedent to a party’s relief, it is pertinent
for the trial court to inquire as to what, if any, new
circumstance warrants a modification of the existing
order. . . .
‘‘Once a trial court determines that there has been a
substantial change in the financial circumstances of
one of the parties, the same criteria that determine an
initial award of alimony and support are relevant to the
question of modification. . . . More specifically, these
criteria, as outlined in General Statutes § [46b-84],
require the court to consider the needs and financial
resources of each of the parties and their children
. . . . 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,
the trial court’s discretion includes only the power to
adapt the order to some distinct and definite change
in the circumstances or conditions of the parties. . . .
‘‘Thus, [w]hen presented with a motion for modifica-
tion, a court must first determine whether there has
been a substantial change in the financial circumstances
of one or both of the parties. . . . Second, if the court
finds a substantial change in circumstances, it may
properly consider the motion and, on the basis of the
§ [46b-84] criteria, make an order for modification. . . .
The 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.’’ (Footnote
omitted; internal quotation marks omitted.) Fox v. Fox,
supra, 152 Conn. App. 620–21 (postjudgment motion to
modify child support).
‘‘A finding of a substantial change in circumstances
is subject to the clearly erroneous standard of review.’’
(Internal quotation marks omitted.) Thomasi v. Thom-
asi, 181 Conn. App. 822, 842, 188 A.3d 743 (2018). A
factual finding is not clearly erroneous when there is
evidence in the record to support it, unless ‘‘the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Kir-
wan v. Kirwan, 185 Conn. App. 713, 726, 197 A.3d
1000 (2018).
Following the evidentiary hearing, the court found
that ‘‘the plaintiff has carried her burden of proof by a
preponderance of the evidence that there has been a
substantial change in circumstances since the initial
child support order was entered in November, 2014.
The court finds that the parties contemplated that the
plaintiff accepted a lower weekly child support amount
in return for the defendant being responsible for paying
100 percent of the private school tuition and other
school costs for the parties’ [child]. At the time of judg-
ment, the [child] attended the Pear Tree Point School.
The child stopped attending the Pear Tree Point School
in June, 2016, and began attending a public school . . .
in Greenwich in the fall of 2016. The savings in annual
private school tuition represents a substantial change
of circumstances entitling the plaintiff to a modifica-
tion in child support.’’ (Emphasis added.)
By the foregoing language in its order granting the
plaintiff’s motion for modification, the trial court made
it clear that the principal basis for its finding that there
had been a substantial change in circumstances since
the date of the last court order was not the mere termi-
nation of the defendant’s obligation to pay for the child’s
private schooling, which had no automatic conse-
quences under the parties’ separation agreement or the
judgment of dissolution, but the material improvement
in the defendant’s financial situation that resulted from
the defendant’s subsequent ‘‘savings in annual private
school tuition . . . .’’ As the realization of such sub-
stantial savings is indisputable, the basic issue pre-
sented to this court is whether such a change in a party’s
financial circumstances, substantially increasing his
usable assets without a corresponding increase in his
net income by relieving him of a preexisting obligation
to use those assets to satisfy a binding court order, can
be found to constitute a substantial change in circum-
stances within the meaning of § 46b-86 (a). Under our
long-standing case law interpreting and applying § 46b-
86 (a), we conclude that that question must be answered
in the affirmative.
We find, more particularly, that Bartlett v. Bartlett,
220 Conn. 372, 382–83, 599 A.2d 14 (1991), and Fabiano
v. Fabiano, 10 Conn. App. 466, 469–70, 523 A.2d 937
(1987), are instructive on this issue. In Bartlett, the
plaintiff alleged that it was improper for the trial court
to refuse to consider evidence of the vesting of the
defendant’s inheritance since the date of the last court
order as a basis for determining, on the plaintiff’s
motion to modify alimony, if there had been a substan-
tial change in circumstances since the date of that order
within the meaning of § 46b-86 (a). The plaintiff argued
that that the court’s ruling was erroneous because the
defendant’s ‘‘financial circumstances had changed sub-
stantially due to his [newly vested] inheritance . . . .’’
Bartlett v. Bartlett, supra, 220 Conn. 382. Our Supreme
Court agreed with the plaintiff, ruling that ‘‘the defen-
dant’s financial circumstances changed substantially
upon the vesting of [the defendant’s] inheritance, war-
ranting the plaintiff’s motion . . . to increase the
award of periodic alimony.’’ Id., 381. Significantly, more-
over, the Supreme Court concluded its analysis by
observing, more generally, that, ‘‘[w]hether the defen-
dant inherited ‘property’ or cash is of no consequence;
a substantial increase in wealth of any sort may form
an appropriate ground for a motion to modify ali-
mony.’’ (Emphasis added.) Id., 383.
Similarly, in Fabiano, ‘‘[t]he principal issue [on]
appeal [was] whether the trial court erred by declining
to modify the defendant’s child support obligation to
the plaintiff [under § 46b-86], where the defendant’s
assets had increased substantially as a result of a per-
sonal injury award.’’ Fabiano v. Fabiano, supra, 10
Conn. App. 466. Upon a review of the record, this court
found that the ‘‘continuation of the prior order would
be unfair and improper’’; id., 469; because the increase
in assets was ‘‘a significant betterment in the financial
condition of [the defendant] . . . and constituted an
unforeseen change of circumstances justifying a recon-
sideration by the trial court of the prior . . . support
orders.’’ (Citation omitted; internal quotation marks
omitted.) Id., 470.2
The circumstances in the present case are similar to
those at issue in Bartlett and Fabiano because here,
as in those cases, the defendant gained access to and the
right to make immediate use of substantial additional
assets between the date of the last court order and the
date of the plaintiff’s motion for modification. Those
newly available assets, more particularly, were savings
the defendant had realized by no longer having to pay
for the child’s private schooling, which he had agreed
to do under the parties’ separation agreement until the
child completed the fifth grade, and the dissolution
court had ordered him to do by making the separation
agreement enforceable as part of the judgment of disso-
lution.
Importantly, this increase in the defendant’s available
assets did not result from mere changes in his discre-
tionary spending habits or other voluntary choices as
to how to use or invest his assets. No such change
would constitute a substantial change in circumstances
because the defendant could always reverse it in the
continuing exercise of total control over all of his assets.
Such a change would therefore not affect the defen-
dant’s total assets, which would always remain fully
available to him, at all times and for all purposes, includ-
ing consideration by the trial court as possible sources
of wealth for the payment of child support.
The change in available assets in this case, by con-
trast, resulted from the termination of the defendant’s
obligation, under a binding court order, to make sub-
stantial payments of after-tax dollars for the child’s
private schooling. When the initial court order of child
support was entered as part of the parties’ judgment
of dissolution, that binding court order encumbered the
defendant’s assets to the extent of his private school
payment obligation, and continued to do so for as long
as the order remained in effect. The existence of the
order thus made the encumbered assets unavailable
to the defendant for any other purpose, including the
payment of child support. When the order expired, how-
ever, the resulting encumbrance upon the defendant’s
assets was removed, making an additional $55,000 per
year in after-tax dollars available to the defendant for
all purposes, including the payment of child support.
By gaining access to those previously encumbered
assets, the defendant realized a substantial increase in
his disposable wealth and a significant betterment of
his financial condition just as surely as if he had
received assets of the same value by the vesting of
an inheritance, as in Bartlett, or the awarding of civil
damages, as in Fabiano.
For the defendant, as the trial court properly recog-
nized, the savings realized by the termination of his
private school payment obligation were new assets in
his pocket that could and should be considered in
determining the amount of his child support obligation
to the plaintiff going forward. Therefore, although the
separation agreement did not expressly link the amount
of the plaintiff’s initial child support award to the defen-
dant’s agreement to pay for the child’s private schooling
through the fifth grade, or contain a look-back provision
automatically entitling the plaintiff to reconsideration
of that order once the defendant’s payment obligation
came to an end, the court reasonably determined that
the amount of that award should be reconsidered in
light of the termination of the defendant’s private school
payment obligation because a larger amount of money
had thereby become available to the defendant for
that purpose.3
On the basis of that evidence, we conclude that the
court’s finding that there had been a substantial change
in the defendant’s financial circumstances since the
date of the last court order requiring him to pay child
support to the plaintiff was not clearly erroneous.
II
The defendant next claims that the trial court erred
because the granting of the plaintiff’s motion for modifi-
cation amounted to an impermissible postdissolution
transfer of wealth between the parties rather than a
need-based increase in the amount of his child support
obligation. Specifically, the defendant contends that the
trial court failed to consider the child’s needs in estab-
lishing the amount of its modified child support award,
thus rendering that award an improper wealth transfer
to the plaintiff. We disagree.
A challenge to a trial court’s application of a statute
in modifying a child support order raises a question of
law, over which this court exercises plenary review.
See Mason v. Ford, 176 Conn. App. 658, 662, 168 A.3d
525 (2017). Our Supreme Court in Dowling provided
clear guidance for determining child support obliga-
tions in high income situations: ‘‘In a trilogy of recent
cases, [our Supreme] [C]ourt has already discussed the
guidelines and accompanying schedule in detail. See
Maturo v. Maturo, supra, 296 Conn. 80; Misthopoulos
v. Misthopoulos, [297 Conn. 358, 999 A.2d 721 (2010)];
Tuckman v. Tuckman, 308 Conn. 194, 61 A.3d 449
(2013). Accordingly, we will not till this legal landscape
any more than is necessary for the resolution of the
present case. . . . [T]he schedule sets forth a presump-
tive percentage and resultant amount corresponding
to specific levels of combined net weekly income; the
schedule begins at $50 and continues in progressively
higher $10 increments, terminating at $4000. . . . This
court has recognized that the guidelines nonetheless
apply to combined net weekly income in excess of that
maximum amount. . . . Indeed, the regulations direct
that, [w]hen the parents’ combined net weekly income
exceeds [$4000], child support awards shall be deter-
mined on a case-by-case basis, and the current support
prescribed at the [$4000] net weekly income level shall
be the minimum presumptive amount. . . .
‘‘While the regulations clearly demarcate the pre-
sumptive minimum amount of the award in high income
cases, they do not address the maximum permissible
amount that may be assigned under a proper exercise
of the court’s discretion. . . . [T]his court has
remained mindful that the guidelines . . . indicate that
such awards should follow the principle expressly
acknowledged in the preamble [to the guidelines] and
reflected in the schedule that the child support obliga-
tion as a percentage of the combined net weekly income
should decline as the income level rises. . . . We there-
fore have determined that child support payments . . .
should presumptively not exceed the [maximum] per-
cent [set forth in the schedule] when the combined net
weekly income of the family exceeds $4000, and, in
most cases, should reflect less than that amount. . . .
‘‘Either the presumptive ceiling of income percentage
or presumptive floor of dollar amount on any given
child support obligation, however, may be rebutted by
application of the deviation criteria enumerated in the
guidelines and by the statutory factors set forth in § 46b-
84 (d). . . . In order to justify deviation from this
range, the court must first make a finding on the record
as to why the guidelines were inequitable or inappropri-
ate . . . . Thus, this court unambiguously has stated
that, when a family’s combined net weekly income
exceeds $4000, the court should treat the percentage
set forth in the schedule at the highest income level as
the presumptive ceiling on the child support obligation,
subject to rebuttal by application of the deviation crite-
ria enumerated in the guidelines, as well as the statutory
factors described in § 46b-84 (d). . . . In other words,
as long as the child support award is derived from a
total support obligation within this range—between the
presumptive minimum dollar amount and the presump-
tive maximum percentage of net income—a finding in
support of a deviation is not necessary.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Dowling v. Szymczak, supra, 309 Conn. 400–402.
In adjudicating child support cases, courts in our
jurisdiction have been reminded to avoid wealth trans-
fers when awarding child support. In Maturo, for exam-
ple, our Supreme Court expressly warned as follows
against wealth transfers or disguised alimony: ‘‘The
effect of unrestrained child support awards in high
income cases is a potential windfall that transfers
wealth from one spouse to another or from one spouse
to the children under the guise of child support. In the
present case, the award of 20 percent of the defendant’s
indeterminate annual bonus without any justification
relating to the characteristics or needs of the children
closely resembles the ‘disguise[d] alimony’ this court
disapproved of in Brown v. Brown, 190 Conn. 345, 349,
460 A.2d 1287 (1983).’’ (Emphasis in original.) Maturo
v. Maturo, supra, 296 Conn. 105. Moreover, the pream-
ble to the child support guidelines expressly acknowl-
edges that a child support obligation, as a percentage
of the combined net weekly income, should decline as
the income level rises. Child Support and Arrearage
Guidelines (2015), preamble, § (d), p. v.
In this case, the defendant focuses on the ‘‘warnings’’
to courts about making wealth transfers or providing
increased alimony in the guise of increased child sup-
port awards in high income situations, as described in
Maturo. The defendant’s reliance on Maturo, however,
is misplaced because Maturo involved a ‘‘child support
order [that was found to be] improper because it was
inconsistent with the statutory criteria and with the
principles expressed in the guidelines.’’ Maturo v.
Maturo, supra, 296 Conn. 89. As a result, the warning
in Maturo was made in the context of a court’s award
of child support that exceeded the highest amount
established for families at the upper limit of the sched-
ule. Id., 87, 104–105. Therefore, the court in Maturo
held that the trial court ‘‘misapplied the deviation crite-
ria and failed to expressly consider the factors set forth
in § 46b-84 (d), thus providing no acceptable rationale
for its decision.’’ (Emphasis added.) Id., 89. In the pres-
ent case, however, the trial court’s modified child sup-
port award did not fall outside the range prescribed by
the guidelines but, rather, increased the child support
to the highest amount authorized by those guidelines.
Consistent with this analysis, our Supreme Court, in its
opinion in Dowling, which was issued three years after
Maturo, explained that ‘‘as long as the child support
award is derived from a total support obligation within
this range—between the presumptive minimum dollar
amount and the presumptive maximum percent of
income—a finding in support of a deviation is not neces-
sary.’’ Dowling v. Szymczak, supra, 309 Conn. 402. This
means that, although the trial court is required to con-
sider the statutory criteria set forth in § 46b-84 (d) in
setting the amount of a modified child support order,
the statute does not ‘‘mandate that a court articulate
why it is ordering an amount consistent with the crite-
ria.’’ (Internal quotation marks omitted.) Kirwan v. Kir-
wan, supra, 185 Conn. App. 746.
In light of this important distinction, we cannot say
that the trial court erred in determining the amount of
its modified award under the guidelines. In making its
order and findings of fact, the court conducted an exten-
sive evidentiary hearing on the motions before it and
reviewed the parties’ memoranda in support of and in
opposition to those motions, the testimony they pre-
sented, all relevant rules, statutory authority and case
law, and the arguments of counsel. In its order, the
court expressly noted that the ‘‘statutory criteria of
§ 46b-84 [d]’’ had been considered. It also noted that
it had considered ‘‘the respective gross and after-tax
incomes of the parties and the parties’ respective assets
. . . .’’ It was not until after those considerations had
been made that the court determined that the child
support award would be $1246 per week. Although the
court did not cite any additional reasons for its increase
in the defendant’s child support obligation, it was not
required to do so because the child support order was
consistent with statutory criteria and within the range
between the minimum and maximum support amounts
established by the guidelines. See Kirwan v. Kirwan,
supra, 185 Conn. 746–47. Indulging every reasonable
presumption in favor of upholding the court’s ruling,
we cannot say that the trial court abused its discretion
in so ordering or that it applied the wrong standard
of law.
III
Lastly, the defendant claims that the trial court erred
because it failed properly to consider and rule on his
motion for modification, and, thus, that this court
should remand this case for further proceedings on that
motion. Although the trial court never made a formal
ruling on the defendant’s motion, it expressly acknowl-
edged that the defendant’s motion was before it when
it issued its ruling granting the plaintiff’s conflicting
motion. If parties file conflicting motions, and one such
motion is granted, it can reasonably be presumed that
the other motion was thereby denied. See Lambert v.
Donahue, 78 Conn. App. 493, 511–12, 827 A.2d 729
(2003); id., 512 (‘‘although not specifically mentioned
in the decision, the court did, in essence, rule on [the
plaintiff’s] motion . . . [by] finding in favor of [the
defendant]’’). The defendant concedes that under this
rule of law, the court did in fact effectively deny his
motion. In consideration of this applicable precedent,
and of the defendant’s failure to seek further judicial
relief to clarify the nature or scope of the trial court’s
ruling, we conclude that by granting the plaintiff’s
motion for modification, the trial court effectively and,
thus, intentionally, with full consideration of the defen-
dant’s counterarguments, denied the defendant’s con-
flicting motion. In light of the defendant’s concession
that his motion was effectively denied, we cannot grant
him relief with respect to that ruling because he has
failed to raise a substantive challenge to the ruling.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Section 4.1 is the first subsection of article IV of the agreement, entitled
‘‘CHILD SUPPORT/POST MAJORITY EDUCATIONAL SUPPORT/PROP-
ERTY SETTLEMENT/ALIMONY/RETIREMENT PLAN.’’ It sets forth all of
the parties’ agreements concerning the provision of financial support for
the child.
2
When Fabiano was decided, a claimant seeking to modify an alimony
or child support order under § 46b-86 was required to show that an uncon-
templated substantial change in circumstances had occurred since the date
of the last court order. Fabiano v. Fabiano, supra, 10 Conn. App. 469. An
uncontemplated change, however, is no longer required by statute. Number
87-104 of the 1987 Public Acts eliminated the requirement in § 46b-86 that
modifications of alimony or child support be based on uncontemplated
changes of circumstances. See General Statutes § 46b-86 (a) (‘‘[a]fter the
date of judgment, modification of any child support order issued before, on
or after July 1, 1990, may be made upon a showing of such substantial
change of circumstances, whether or not such change of circumstances was
contemplated at the time of dissolution’’).
3
It might further be noted that the two paragraphs of the separation
agreement that established the amount of the initial court order of child
support and the defendant’s obligation to pay all expenses for the child’s
private schooling through the fifth grade were set forth in the same section
of the separation agreement, § 4.1, along with a third paragraph requiring
the defendant to pay for the child’s health insurance. This recitation of those
obligations to the child in a single paragraph of the parties’ separation
agreement supports the inference that the parties agreed to them as comple-
mentary parts of a unified matrix of financial support for the child, to meet
her changing needs as she grew older until she reached the age of majority.
The amount of child support that the defendant agreed to pay directly to
the plaintiff was thus only one component of the total financial support the
parties agreed to provide for her. Therefore, when one essential need of
the child changed with the passage of time, the deployment of her parents’
assets to provide for her continuing support could change as well, providing
different amounts of money for different purposes as her activities changed
and her needs evolved. This factor as well supports the court’s determination
that the practical increase in the defendant’s usable wealth that resulted
from the termination of his private school payment obligation made it appro-
priate for the court to consider such increased wealth as a basis for modifying
its initial child support award.