Moore v. Moore

216 Conn.App. 179

283 A.3d 994

Jennifer MOORE

v.Justin MOORE

AC 44278

Appellate Court of Connecticut.

Argued March 7, 2022

Officially Released October 25, 2022

Richard W. Callahan, for the appellant (defendant).

Jennifer Moore, self-represented, the appellee (plaintiff).

Elgo, Moll and Suarez, Js.

SUAREZ, J.

The defendant, Justin Moore, appeals from the judgment of the trial court denying his postjudgment motion to modify the alimony and child support orders that were entered following the dissolution of his marriage to the self-represented plaintiff, Jennifer Moore. On appeal, the defendant argues that the court improperly denied his motion to modify these orders. We agree with the defendant that the court improperly denied his motion insofar as he sought a modification of the child support order and, accordingly, reverse the judgment of the court with respect to this claim and remand the case for a new hearing with respect to the motion to modify the child support order. With respect to the court's denial of the motion insofar as the defendant sought a modification of the alimony order, we affirm the judgment of the court.

The following facts, as found by the court or as undisputed in the record, and procedural history are relevant to this appeal. The plaintiff and the defendant were married on July 27, 2002. During the marriage, the plaintiff and the defendant had three children. On June 1, 2018, the plaintiff commenced a dissolution action against the defendant. On November 7, 2019, following a hearing at which both parties were self-represented, the dissolution court dissolved the marriage of the parties and issued orders from the bench. In so doing, the dissolution court made several factual findings. The dissolution court found, inter alia, that the plaintiff was employed at Sikorsky Aircraft earning $2346 per week. The dissolution court also found that the defendant owned a painting and power washing business from which he earned $1000 per week.

The dissolution court subsequently issued the following orders: "The parties shall have joint legal custody of the minor children. They shall have shared residential custody. The primary address for school purposes will be with the plaintiff ....

"The court adopts the proposed parenting agreement of the defendant, which is dated November 7, 2019, and incorporates that herein.

"The court will deviate from an award for child support due to the shared custodial arrangements, such that no child support will be awarded at this time. The court notes that the statutory guidelines would call for a numerical award. The court believes it's in the best interest of the minor children and in the best interest of the parents that no child support be awarded for the reasons indicated, and shall deviate therefrom....

"The plaintiff shall provide health insurance for the minor children. Any unreimbursed medical and/or extracurricular activity expenses shall be paid in the following manner: 76 percent by the plaintiff; 24 percent by the defendant.

"The parties shall alternate tax credits for the minor children with the plaintiff taking the odd years, [the] defendant taking the even years, starting with the tax year 2019 ....

"The plaintiff is ordered to pay $100 per week [in] alimony to the defendant for a period of seven years. That is nonmodifiable as to duration. It is modifiable as to amount.

"The marital residence is located at 54 Monroe Street in Shelton, Connecticut. It has a current value of $290,000. It is encumbered by a mortgage in the amount of $248,000, yielding equity in the amount of approximately $42,000.

"The parties may remain in the residence until the closing....

"The property shall be listed at $314,000. And when sold, the proceeds will be split between the parties.

"Each party shall keep his or her individual bank accounts, retirement accounts, and shall be solely responsible for their own liabilities, as listed in their respective financial affidavits, and shall hold harmless and indemnify the other regarding each.

"The plaintiff shall retain the 2013 Yukon; the defendant shall retain the 2016 Dodge, each holding the other harmless and indemnifying the other from any and all expenses and claims regarding those vehicles.

"Each party shall maintain life insurance in the amount of $300,000 per year, naming the children as beneficiaries. Proof of insurance shall be exchanged by the parties each year.

"The defendant shall maintain 100 percent interest in his business, and shall hold harmless and indemnify the plaintiff therefrom." The court ultimately ordered that the marriage of the parties be dissolved.

Following the sale of the marital residence pursuant to the judgment, the plaintiff moved to Seymour in order to reside at her parents’ vacant home. The defendant rented a residence in Shelton.

On July 6, 2020, the defendant filed a postjudgment motion for modification requesting that the court (1) designate his address as the children's primary residence for school purposes, (2) order that the plaintiff pay the defendant weekly child support pursuant to the child support guidelines, and (3) increase the plaintiff's weekly alimony payment to the defendant. The defendant claimed that modification of the alimony and child support orders was warranted because the circumstances between the parties had "changed substantially" since the time of the dissolution because the marital home had been sold, the parties were no longer cohabitating, and the parties’ incomes and expenses had changed. Beyond relying on changed circumstances, the defendant claimed that "[t]he current circumstances warrant child support to be paid per the [child support] guidelines ...."

On August 17, 2020, the court held a remote hearing on the defendant's motion for modification. At the hearing, the parties addressed only the modification of alimony and child support because the issue of the primary residence of the children had been resolved by the plaintiff's purchase of a home. At the conclusion of the hearing, the court stated that it had listened carefully to the sworn testimony of the parties, was aware of the statutory requirements regarding the motions for modification, and had reviewed the documentation, including but not limited to the financial affidavits filed by the parties. The court concluded that it could not "find a substantial change in circumstances." The court then denied the defendant's motion for modification from the bench. On that same day, the court also issued a written order in which the court stated that it was denying the motion because it did not find a substantial change in circumstances.

On August 20, 2020, the defendant filed a motion to reargue or reconsider the court's denial of the motion to modify the child support order. Therein, the defendant again argued that the evidence established a substantial change in circumstances. Alternatively, the defendant argued that, in its denial of the motion for modification of child support, the court failed to address the issue of whether modification was warranted because the support order entered on November 7, 2019, substantially deviated from the child support guidelines and that the dissolution court, in entering the support order, failed to make findings on the record related to the deviation, as required by law. The court summarily denied the defendant's motion to reargue or reconsider on September 1, 2020. This appeal followed.¹

On October 26, 2020, after this appeal was filed, the defendant, pursuant to Practice Book § 64-1,² moved for the trial court to issue a memorandum of decision concerning the denial of his motion for modification. On November 5, 2020, the court issued a memorandum of decision.

On December 4, 2020, the defendant sought an articulation from the court as to its findings of fact and legal conclusions, which the court summarily denied on December 9, 2020. Among the requests for articulation, the defendant asked the court to explain "what facts supported the trial [court's] decision to not order child support in accordance with the guidelines on August 17, 2020, when it heard the defendant's postjudgment motion to modify ...." The defendant also noted that, in his motion to reargue or reconsider, he had again relied on what he believed to be an improper deviation from the guidelines, and argued that this issue had not been addressed by the court.

The defendant then filed with this court a motion for review of the court's denial of his motion for articulation pursuant to Practice Book § 66-7.³ In his motion for review, the defendant argued, in part, that he was entitled to relief because the court, in denying the motion for modification of child support, had not addressed his argument that modification was proper because the child support order issued by the dissolution court improperly deviated from the child support guidelines. This court granted the motion for review and ordered the trial court "to articulate with respect to its ... denial of the [defendant's] motion for modification ... by stating the factual basis for its finding that there was no substantial change in circumstances, including therein a discussion of the evidence put forth by the parties ...."

On September 22, 2021, the trial court issued an articulation of its memorandum of decision pursuant to this court's order. In that articulation, the court stated that "[t]he defendant's instant motion to modify the alimony order alleges a substantial change in circumstances, pursuant to the requirements of ... General Statutes § 46b-86 ....

"Within his motion, the defendant ... alleged that the substantial change in circumstances included the fact that the parties’ marital home was sold, the parties no longer live together, the plaintiff's income has increased and her expenses have decreased, the defendant's income is more inconsistent and unstable and his expenses have increased.

"Thus, the defendant requested an increase in the plaintiff's alimony...