Flood v. Flood

199 Conn.App. 67

234 A.3d 1076

Bethany FLOOD

v.Robert FLOOD

AC 42477

Appellate Court of Connecticut.

Argued February 6, 2020

Officially released July 14, 2020

Gary I. Cohen, Stamford, for the appellant (defendant).

Eric R. Posmantier, with whom was Kimberly A. Stokes, Greenwich, for the appellee (plaintiff).

Prescott, Devlin and Sheldon, Js.

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 modification 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 relevant 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 incorporated 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 particularly, 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 medical 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 defendant claimed, more specifically, that whereas the plaintiff'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 rendered, 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 circumstances since the date of the judgment of dissolution 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 concluded her memorandum by arguing that, under Dowling 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 opposition 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 circumstances had occurred since the date of the last court order. Specifically, the defendant argued that there had been no substantial change in his financial circumstances 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 ., conducted 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, 72 A.3d 1, 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 guidelines. 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 separated 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 defendant 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 private 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 agreement became enforceable under the judgment of dissolution, 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 circumstances 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...