Officially Released November 6, 2018.
In short: (1) If you are relying on a deviation in your separation agreement, make certain that the court makes an explicit finding that strict application of the guidelines would be inequitable to assist with preserving that deviation in future modifications; (2) it is not error for the trial court to use and rely on its own family law software calculations; (3) agreements that provide for attorneys fees upon violation can be enforced.
The parties entered into a separation agreement that provided, inter alia, “the Husband shall pay the Wife the sum of $260.00 per week as and for child support pursuant to the child support guidelines [provided he is employed at the rate of Two Hundred and Five Thousand ($205,000.00) Dollars per year.]” (brackets in original).
Husband claimed that his income had dropped below $205,000 and unilaterally ceased making child support payments for a year. He thereafter filed a motion for modification of support on the basis of unemployment and repeatedly recalculated his own child support payments unilaterally.
It is never a good start when the Appellate Court states “two years [after the judgment] the parties began to file a seemingly endless stream of motions.” The trial court issued a post-judgment memorandum of decision after a four-day hearing involving more than twenty motions, and a subsequent correction after a motion to reargue. Two months after the close of evidence on those motions, Wife filed an additional motion for contempt alleging Husband had made no child support payments in that time. The trial court declined to hold Husband in contempt or his self-help and cessation of child support payments on the basis that he had relied on professional assistance in determining the amount of his modified payments in good faith, despite finding that his actions were “both completely unreasonable and without merit.” The trial court ordered Husband to pay $50,000 in counsel fees based on a provision of the separation agreement providing for fees upon violation of the orders and modified the child support orders without entering a deviation. The trial court did find Husband in contempt for his non-payment of support after close of evidence at the initial hearing. Husband appealed and Wife cross appealed.
Regarding Wife’s cross-appeal, the Appellate Court found that the trial court abused its discretion by not finding Husband in contempt for engaging in self-help and unilaterally modifying his support payments. Husband’s efforts to determine what level to modify his payments to did not overcome the trial court’s finding that he had no right to engage in self-help in the first place.
Husband argued that the trial court’s use of family law software to calculate net income was improper. Underpinning this claim was the fact that the trial court could not articulate its precise numbers because family law software had been updated since it ran its calculations. The Appellate Court held that calculations are not evidence and the trial court did not abuse its discretion.
Husband argued that the trial court failed to consider and failed to order a deviation from the guidelines. Underpinning Husband’s claim as to the deviation was his argument that he had agreed to provide private school tuition as a concession in the original agreement in exchange for the deviation. The Appellate Court found that the original agreement contained a concession offsetting private school tuition against alimony, not a support deviation and that the denial of a deviation was not abuse of discretion. More importantly, it determined that the original approval of the separation agreement did not contain any finding that application of the child support guidelines was inequitable, even though it had approved the deviation at time of judgment. Thus, strict application of the guidelines was not abuse of discretion.
Husband argued that the trial court erred in modifying its decision reargument. the Appellate Court found that the correction to calculations on reargument, even where reargument had not sought that particular correction, was not improper.
Husband argued that the court abused its discretion in ordering him to pay $50,000 of counsel fees based on a provision of the separation agreement that provided for reasonable counsel fees in the event that a court finds breach of the agreement. The Appellate Court rejected Husband’s argument, citing its decision that Husband should have been found in contempt and further stating “where the parties, in their agreement, have provided for the payment of counsel fees in the event one party is in breach of the agreement, it is proper for the court to rely on the attorney’s fee provision of that agreement, even if it declines to find a party in contempt.” Goold v. Goold, 11 Conn. App. 268, 288-89, 527 A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987).
Husband claimed the court abused its discretion in failing to hold Wife in contempt for violating a provision related to taxes. The Appellate Court affirmed the trial court’s decision as to this issue on the basis that the provision was ambiguous.
Finally, Husband claimed that the trial court abused its discretion in finding him in contempt for his non-payment of child support after the close of evidence on the first twenty-something motions. The Appellate Court easily rejected this argument.
