Amodio v. Amodio

VERTEFEUILLE, J.,

with whom HENNESSY, J., joins, dissenting. I respectfully disagree with the majority’s conclusion that the trial court improperly exercised its authority under General Statutes (Rev. to 1999) § 46b-86 (a)1 and improperly applied McHugh v. McHugh, 27 Conn. App. 724, 609 A.2d 250 (1992). I also disagree with the majority’s conclusion that the child support order in question was nonmodifiable, and I would decline to decide the issue because it was neither raised nor decided by the trial court. Accordingly, I respectfully dissent.

Our scope of review in appeals from family relations decisions is limited. “The 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 reason*477able basis in the facts. . . . Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981). ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Turner v. Turner, 219 Conn. 703, 708-709, 595 A.2d 297 (1991).

I do not take issue with the facts as stated by the maj ority. I believe, however, that the following additional facts are important to an understanding of the issues in this case. In 1990, when the dissolution judgment was entered, both parties were represented by counsel, neither of whom informed the trial court that the child support in the amount of $325 to which they had agreed deviated substantially from the amount called for in the child support guidelines (guidelines). The trial court was not aware of the deviation from the guidelines and, therefore, made no finding with respect to the deviation. See General Statutes (Rev. to 1989) § 46b-86 (a), as amended by Public Acts 1990, No. 90-213, § 46.2

The guidelines set forth the total weekly amount that is necessary for the support of a child or children, which is called the “basic obligation.” The responsibility for payment of the basic obligation is determined through *478the use of a worksheet that allocates the obligation between the mother and the father on the basis of their respective incomes. See Regs., Conn. State Agencies § 46b-215a-2. At the time of the hearing on the motion to modify child support in the present case in 1996, the basic obligation under the guidelines for the children in this case was $305. In 1990, when the original support order entered, the plaintiff was not employed outside her home, and her share of the basic obligation was zero. In 1996, however, the plaintiff was employed outside her home, and her share of the support obligation was calculated to be $85 per week. The defendant’s share of the support, therefore, was reduced to $220.

My analysis of the propriety of the trial court’s order modifying the child support payable by the defendant begins with the applicable statute. Section 46b-86 (a) permits the court to modify child support orders in two alternative circumstances. The first, which is not at issue in the present case, is “upon a showing of a substantial change in the circumstances of either party . . . .” General Statutes § 46b-86 (a). The second is “upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. ...” (Emphasis added.) General Statutes § 46b-86 (a). Under this second ground, a child support order is modifiable if it substantially deviates from the guidelines and there was no finding by the court that entered the order that the application of the guidelines would be inequitable or inappropriate. There is no dispute that the defendant in the present case moved to modify his child support obligation on the basis of this second ground of the statute.

The second ground was added to § 46b-86 (a) in 1990 and did not take effect until after the date of the dissolu*479tion judgment. Public Acts 1990, No. 90-188, § 1. Soon after the statute took effect, our Supreme Court was asked to determine whether the new ground for modification applied retroactively to child support orders not conforming to the guidelines that were entered before the effective date of the amended statute. Turner v. Turner, supra, 219 Conn. 703. The Supreme Court held that the statute did apply to nonconforming support orders entered before the statute was adopted, concluding that the statute “allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole, as reflected in the mandatory periodic revisions of the child support guidelines.” Id., 718.

Approximately one year after Turner, this court decided McHugh v. McHugh, supra, 27 Conn. App. 724. The issue in McHugh was whether the trial court properly granted a motion to modify child support when it entered an order for support in the amount of $110 per week, despite the fact that the guidelines called for an order of $287 and without making any finding with respect to the deviation. We began our analysis in McHugh with General Statutes § 46b-215b, which requires that the guidelines be considered in all determinations of child support amounts, including modifications. We next noted that § 46b-215b creates a rebuttable presumption that the amount of child support to be ordered by the court is the amount resulting from the guidelines unless there is a specific finding on the record that the guidelines amount would be inequitable or inappropriate. We then acknowledged the 1990 amendment to § 46b-86 (a), which permitted modification to conform to the guidelines, and our Supreme Court’s holding in Turner that the amendment applies retroactively to nonconforming support orders previously entered. In light of the two statutory provi*480sions, §§ 46b-215b and 46b-86 (a), and the holding in Turner, we concluded, “[i]t follows, therefore, that once the court enters an order of child support that substantially deviates from the guidelines, and makes a specific finding that the application of the amount contained in the guidelines would be inequitable or inappropriate, as determined by the application of the deviation criteria established in the guidelines, that particular order is no longer modifiable solely on the ground that it substantially deviates from the guidelines. By the same token, in the absence of such a specific finding, the order is continually subject to modification on the ground of a substantial deviation from the guidelines. ” (Emphasis added.) Id., 728-29. Because the trial court in McHugh deviated from the guidelines without making the necessary finding, we reversed the judgment of the trial court and remanded the case for a new hearing. Id., 729.

The reasoning of McHugh is cogent and the conclusion in the case was compelled by application of the express provisions of the two applicable statutes, § § 46b-215b and 46b-86 (a), together with the retroactivity holding in Turner. I would conclude that the trial court in the present case properly applied the reasoning from McHugh in granting the defendant’s motion to modify. The trial court determined that the 1990 child support order was a substantial deviation from the guidelines and that the necessary finding supporting deviation was not made. Therefore, the trial court found that the support order was modifiable to conform to the guidelines.

The majority distinguishes McHugh on its facts and refuses to apply it retroactively. I am not persuaded by the factual distinctions, and I conclude that whether McHugh is applied retroactively or not, our reasoning in that case, based as it was on the express provisions of the two statutes and the holding of our Supreme Court in Turner, is inescapable. In refusing to make *481McHugh retroactive, the majority relies on our refusal in Draper v. Draper, 40 Conn. App. 570, 672 A.2d 522 (1996), to make retroactive our Supreme Court’s decision in Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994). The decision in Favrow, however, which required the trial court to make a finding on the record of the presumptively correct support amount under the guidelines before finding it inequitable or inappropriate, was based on the court’s construction of § 46b-215b, not on any of the clear, express provisions of the statute. I conclude that the trial court properly applied our reasoning from McHugh and properly exercised its authority under § 46b-86 (a) in granting the defendant’s motion to modify.

I would reverse the decision of the trial court, however, because of the court’s failure to consider two factors required by statute. Section 46b-86 (a) provides in relevant part that “[i]n determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. ...” There is no evidence in the record that the trial court considered these factors. I would, therefore, reverse the judgment of the trial court and remand this case for further hearing limited to a consideration of these statutory factors.

Finally, I respectfully dissent from the majority’s conclusion that the 1990 child support order was nonmodifiable. I would decline to reach this issue. A review of the transcript of the hearing on the motion to modify demonstrates that the plaintiff did not claim that the child support amount was nonmodifiable. Although the plaintiff made reference to the provision in the agreement that stated that any future modification of child support should be based on an increase in the *482defendant’s wages to an amount exceeding $900 per week, she never argued that the support order was nonmodifiable. The plaintiff claimed that the agreement between the parties was a binding contract with many interdependent elements and that the court, therefore, should not vary the child support amount. Because the issue of nonmodifiability was not raised, the trial court made no finding with respect to the modifiability of the child support amount. We do not consider issues that were neither raised nor decided in the trial court. Practice Book § 60-5; State v. Vasquez, 9 Conn. App. 648, 653, 520 A.2d 1294, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987). I, therefore, disagree with the majority’s conclusion that the child support order in the parties’ agreement was nonmodifiable.

Accordingly, I dissent.

General Statutes (Rev. to 1999) § 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 or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said 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, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9,1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. . . .”

General Statutes (Rev. to 1989) § 46b-86 (a), as amended by Public Acts 1990, No. 90-213, § 46, provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. After the date of judgment, modification of any child support order issued before 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 coni emplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or 1 o any assignment of the estate or a portion thereof of one party to the other party under prior law.”