Czunas v. Mancini

317 A.3d 843

226 Conn.App. 256

Sandra E. CZUNAS

v.Richard J. MANCINI

(AC 45848)

Appellate Court of Connecticut.

Argued February 8, 2024

Officially Released June 18, 2024

Kenneth J. McDonnell, Essex, for the appellant (defendant).

David P. Mester, Hartford, with whom was P. Jo Anne Burgh, Glastonbury, for the appellee (plaintiff).

Cradle, Seeley and Westbrook, Js.

CRADLE, J.

₂₅₈In this postjudgment marital dissolution matter, the defendant, Richard J. Mancini, appeals from the judgment of the trial court denying his motion to modify child support and awarding attorney’s fees to the plaintiff, Sandra E. Czunas, to defend against this appeal. The defendant claims that the court (1) improperly found that there had not been a substantial change in circumstances since the date of the entry of the prior child support order that warranted a modification of that order, and (2) the court abused its discretion in awarding the plaintiff attorney’s fees in the amount of $10,000 to defend against this appeal. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims on appeal. The trial court, Prestley, J., dissolved the parties’ marriage on July 25, 2013, incorporating into the judgment of dissolution the parties’ separation agreement, which provided, inter alia, that they would have joint legal custody of their minor child, his primary residence would be with the plaintiff and the defendant would have parenting time both during the week and on weekends.¹ The agreement also provided that the defendant would pay $265 per week in child support.

₂₅₉On December 13, 2016, the parties entered into a stipulation, which, inter alia, expanded the defendant’s parenting time, providing that the child would be with the defendant every Tuesday and Wednesday night and alternating weekends from Friday night until Sunday evening.

On April 21, 2017, the defendant filed a motion to modify child support, alleging, inter alia: "There has been a substantial change in circumstances in that the defendant has suffered a significant reduction in his income, while the plaintiff’s income has likely increased significantly. In addition, the parties share physical custody of the minor child, and the plaintiff earns more than the defendant." On July 5, 2017, the parties entered into a court-approved written agreement, which, inter alia, modified the defendant’s child support obligation to $200 per week in compliance with the child support guidelines.

On April 29, 2019, the defendant filed a motion to modify, seeking to have his weekends with the minor child extended to Monday mornings. On September 27, 2021, the parties entered into another stipulation so modifying the parties’ parenting plan.²

₂₆₀On July 15, 2022, the defendant filed a motion to modify child support, alleging, inter alia: "There has been a substantial change in circumstances in that the financial circumstances of one or both parties have changed. Furthermore, the parties have a shared parenting plan, and it is unfair and inequitable for the defendant to continue paying child support to the plaintiff."

On September 13, 2022, the trial court, Abery-Wetstone, J., held a hearing on the defendant’s motion to modify child support.³ At the hearing, the defendant did not address the claim in his motion that there had been "a substantial change in circumstances in that the financial circumstances of one or both parties have changed." Rather, counsel for the defendant clarified that he had "no additional evidence to present other than the shared physical custody arrangement and the … change in the [Sunday] overnight since 2017." On the basis of that change, the defendant requested that neither party be ordered to pay child support. The court found that the defendant failed to prove that there had been a substantial change in circumstances since the date of the last child support order and, therefore, denied the defendant’s motion. On September 27, 2022, the defendant filed this appeal.

On October 21, 2022, the plaintiff filed a motion for counsel fees to defend against this appeal. On November 23, 2022, the court held a hearing on the plaintiffs motion. The court ordered the defendant to pay the ₂₆₁plaintiff $10,000 for attorney’s fees to defend against the appeal. On December 6, 2022, the defendant timely amended his appeal to include his challenge to the award of attorney’s fees.

I

[1] The defendant claims that the trial court improperly found that there had not been a substantial change in circumstances since the date of the entry of the prior child support order that warranted a modification of that order.⁴ Specifically, the defendant claims that the "new and changed circumstances of shared physical custody"—the extension of his weekends with the minor child from Sunday evening to Monday morning—entitled him to a modification of his child support obligation. We disagree.

The following additional procedural history is relevant to this claim. As noted, at the hearing on the defendant’s motion to modify, counsel for the defendant clarified that he had "no additional evidence to present other than the shared physical custody arrangement and the … change in the [Sunday] overnight since 2017." The defendant testified that the parenting plan was modified in 2021, extending his weekend parenting time to Monday mornings. He asked that "no child support [be] ₂₆₂paid from one party to the other …. " Following the defendant’s very limited tes- timony, counsel for the defendant indicated that he had no further questions for the defendant.⁵ At that time, the court told the defendant: "[O]ther than a shared parenting plan, I need another reason to deviate from the child support guidelines. You haven’t established that." In response, counsel for the defendant asserted that, although the defendant’s financial affidavit was "relatively the same as it was in 2017" there had been a change in the plaintiff’s financial affidavit. The court explained: "The guidelines—both of your guidelines, show child support from father to mother at $205 and $203. That is not a significant change [from the $200 order]—it’s … within the 15 percent. So, you need another reason, other than a shared parenting plan, to modify child support." The defendant indicated that "it was shared in 2017 … the difference … is it’s been … since 2021 … they had … full shared [custody] …. " The court stated: "That, by itself, is not sufficient to deviate from the child support guidelines down to zero. I need another reason." Counsel for the defendant argued that "[t]he other reason would be the increase in the plaintiff’s income since 2017." The court reiterated: "But the child support, based on their current incomes, has not changed from 2017…. So, we don’t modify child support unless there’s been a substantial change in the actual child support. It’s got to be 15 percent or more. It’s not. … Both parties’ income has gone up a little bit [since 2017]. The plaintiff in 2017 was showing gross income of $1959. She’s currently showing gross income of $2161. [The] defendant in 2017 was showing income of $1859. It’s currently $2260…. The court needs another reason other than simply shared custody to ₂₆₃deviate downwards." Counsel for the defendant indicated that he understood the court’s ruling and that he had "no additional evidence to present other than the shared physical custody arrangement and the … change in the overnight since 2017."

[2–5] "[General Statutes §] 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is alimony [or child support], the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony [or child support] may be modified 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 moving 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. … A finding of a substantial change in circumstances [or the lack of a substantial change in circumstances] is subject to the clearly erroneous standard of review. … A finding of fact is clearly erroneous when there is no evidence in the record to support it … or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) De Almeida-Kennedy v. Kennedy, 224 Conn, App. 19, 30–31, 312 A3d 150 (2024).

[6] While § 46b-86 (a) broadly encompasses all cases in which a change in a support order is contemplated, ₂₆₄General Statutes § 46b-224⁶ addresses the distinct factual scenario of a change in custody and requires modification of a child support order from the moment a court transfers custody of minor children from a recipient of child support to a payor of child support. See Coury v. Coury, 161 Conn. App. 271, 297,128 A.3d 517 (2015). "Modification … of a child support order upon a change of custody under § 46b-224 … comports with the default rule that child support follows the children …. "⁷ (Internal quotation marks omitted.) Id., at 299, 128 A.3d 517.

Thus, although a change in custody warrants a modification of child support, there was no change in custody of the minor child in this case that would have triggered § 46b-224.⁸ In other words, there was no change in custody₂₆₅ that...