Coury v. Coury

161 Conn.App. 271

Lara C. COURY

v.Steven E. COURY.

No. 35595.

Appellate Court of Connecticut.

Argued May 13, 2015.

Decided Nov. 17, 2015.

Erich Henry Gaston, Waterbury, with whom was Patrick Heeran, and, on the brief, Nancy Segore–Freshman, Westport, for the appellant (plaintiff).

Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellee (defendant).

LAVINE, SHELDON and KELLER, Js.

KELLER, J.

The plaintiff, Lara C. Coury, appeals from the judgment of the trial court granting a postdissolution motion filed by the defendant, Steven E. Coury, wherein he requested that the court modify the unallocated support and supplemental bonus alimony awards entered in the judgment of dissolution. The plaintiff claims that the trial court erred by (1) entering an order eliminating her supplemental bonus alimony award and (2) retroactively modifying the unallocated support and supplemental bonus alimony awards. We reverse the judgment in part for two reasons. First, the court erred by retroactively modifying the monthly unallocated support award to a monthly alimony award in a lesser amount without delineating the portion of the unallocated support award that was attributable to child support and limiting its retroactive modification of that amount. Second, the court erred by retroactively modifying the supplemental bonus alimony award. The judgment is affirmed in all other respects.

The following facts and procedural history are relevant here. The parties were married on June 1, 2002, in Rhode Island. They have three minor children. On August 5, 2009, the plaintiff filed for divorce. On January 18, 2011, the trial court, Gordon, J., rendered a judgment of dissolution. Although the court did not attribute fault to either party, it found that the plaintiff's abuse of alcohol and the defendant's controlling behavior, as well as his infidelity, contributed to the breakdown of the parties' marriage.

The court entered a number of orders in the judgment of dissolution. Of import to this appeal are the court's orders concerning the custody of the parties' three minor children and the monthly unallocated support and supplemental bonus alimony awarded to the plaintiff. The court ordered that the parties share joint legal custody of all three of the parties' minor children. In addition, the plaintiff was awarded sole physical custody of all three minor children, contingent on her compliance with the conditions set forth in the judgment pertaining to her mental health, which included a prohibition against consuming alcohol. The court awarded the plaintiff $11,000 per month in unallocated support until June 30, 2019, unless other specified conditions were met that would terminate the award at an earlier date.¹ Furthermore, as a supplemental bonus alimony award, the court awarded to the plaintiff 30 percent of any annual bonus income the defendant earned in excess of his base salary, as it existed at the time of the dissolution, of $300,000.

On October 16, 2011, the defendant filed an ex parte motion seeking modification of the court's custody and visitation orders. In his motion, the defendant alleged that the plaintiff had been arrested for driving under the influence of alcohol on October 12, 2011. The defendant requested, inter alia, that the court modify the judgment of dissolution and award him physical custody of the parties' three minor children. The court, Reynolds, J., granted the motion on October 17, 2011, and, without prejudice, entered an ex parte order that, inter alia, transferred sole physical custody of the parties' three minor children to the defendant, subject to a hearing scheduled to be held at a later date and any other orders that the court entered.

In addition to his ex parte motion for modification, the defendant filed a motion to modify permanently the court's custody and visitation orders. After conducting a hearing on the motion on November 1, 2011, the court, Winslow, J., modified the judgment of dissolution and awarded sole physical custody of the parties' minor children to the defendant, although it did not modify the original joint legal custody order. The court further ordered that the plaintiff be precluded from filing a motion to modify the new physical custody order within the six months following the judgment. In addition, the court ordered that the plaintiff's visitation was to be supervised and to occur no fewer than three times per week, but the court did not set a specific schedule of days or hours.²

On November 16, 2011, the defendant filed the motion to modify the unallocated support and supplemental bonus alimony awards at issue in this appeal. In support of his motion, he alleged, inter alia, five reasons for the modification: he had sole physical custody of the parties' three minor children; he owed state and federal taxes for the 2009 and 2010 tax years, as well as accountant fees; his current wife had given birth to a child; his current wife's employment had been terminated; and the plaintiff had begun cohabiting with her mother. On the basis of the foregoing allegations, the defendant claimed that a substantial change in circumstances had occurred, and he requested that the court enter orders reducing the unallocated support award and eliminating the supplemental bonus alimony award in its entirety.

For various reasons, proceedings on the defendant's motion to modify did not commence until January, 2013, after the court granted numerous motions for continuance. During the proceedings, the defendant requested that the court, Winslow, J., retroactively modify the judgment of dissolution dating back to November 28, 2011. The plaintiff objected to that request, asserting that General Statutes § 46b–86 (a) prohibited the court from retroactively modifying the orders because the defendant had failed to comply with the service of process requirement promulgated by General Statutes § 52–50. In response, the defendant contended that the plaintiff had not filed a motion to dismiss and had participated in all of the proceedings on the motion, thereby effectively waiving any argument concerning improper service of process. In addressing the issue of retroactivity, Judge Winslow stated that, according to her personal notes, which were never made part of the record, there had been a reservation of retroactivity by the parties to November 28, 2011. The record, however, indicates neither a request on the part of the defendant for a retroactive modification nor any agreement between the parties to such an express reservation at any time between the date the motion was filed and the date the court granted the motion to modify, April 2, 2013.

On April 2, 2013, the court rendered judgment granting the motion to modify. The court, rather than entering a modified unallocated support award, awarded the plaintiff alimony in the amount of $9600 per month, retroactive to January 1, 2012.³ According to the order, the alimony award would decrease to $7400 per month commencing on May 1, 2013. The court also ordered that, retroactive to

January 1, 2012, the defendant was no longer obligated to pay child support to the plaintiff.⁴

The court then eliminated the supplemental bonus alimony award in its entirety, retroactive to January 1, 2012. Additionally, to encourage the plaintiff's rehabilitation, the court granted the plaintiff a safe harbor in the amount of $45,000 per year before the defendant could seek further modification of his alimony obligation. The court also ordered that the defendant pay the plaintiff $400 per month, starting on May 1, 2013, on an arrearage of $10,036.37 in unpaid supplemental bonus alimony found past due and owing to the plaintiff. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the plaintiff's claim that the court erred by entering an order eliminating the supplemental bonus alimony award, which entitled her to 30 percent of any bonus income the defendant earned in excess of his former annual base salary of $300,000.⁵ Specifically, she asserts that the court improperly based the order on its finding that a substantial change in circumstances had occurred as a result of the transfer of sole physical custody of the parties' three minor children from the plaintiff to the defendant. In addition, she asserts that the court failed to set forth the facts it relied on in support of the order. We disagree.

The following additional facts are relevant here. During the first day of proceedings on the defendant's motion to modify, the court stated the following: "All right. If the issue is the threshold question, whether there's been a substantial change in circumstances since the entry of the judgment, I don't think we need to spend a lot of time on that issue, because the [physical] custody of the three children has changed from the plaintiff to the defendant, making an unallocated order somewhat difficult to swallow. At this point, there has to be a separation of child support and alimony, without question.

"So, in itself, the existing order, which [the defendant] seeks to modify, has to be changed. There's no question there's been a substantial change in circumstances that requires a change in those support orders. I don't think we need to spend a lot of time, therefore, on that threshold issue of whether or not there's been a substantial change in circumstances.... Let's instead address ourselves to what the orders should be, as a result of a motion to modify ... subsequent to the judgment. So, I'm not so much interest[ed] in it showing a change, as showing what should the orders be."

Then, prior to entering its orders, the court stated the following: "[W]hen there's a motion to modify ... the first issue is one of substantial change, and the modification, in this case, calls to us to turn [to § ] 46b–86. I indicated earlier that I didn't think there was much of an issue here and I think both sides essentially conceded that there...