Officially released March 26, 2019.
In short: (A) there are two bases to modify child support, 1) a showing that the prior order substantially deviated without appropriate findings, and 2) a showing a substantial change in circumstances. (B) The bad faith exception to the American Rule regarding counsel fees is extremely limited.
The parties were divorced pursuant to separation agreement, which provided, inter alia, that Husband would pay $1,000 per week unallocated support. The parties subsequently modified the award to $900 per week by agreement.
Husband thereafter filed another motion for modification of the unallocated award. Wife filed a motion for attorney’s fees for defending against Husband’s motion. The trial court found that Husband had conceded a lack of change in circumstances and denied modification of the unallocated order. Husband filed an appeal. Wife filed a motion for clarification asking for an order as to her motion for attorney’s fees and filed another motion requesting attorney’s fees to defend the appeal. The trial court held a hearing, which Husband did not attend, and entered orders of attorney’s fees to Wife for defending Husband’s modification under the bad faith exception to the American rule. The trial court awarded additional attorney’s fees to Wife to defend the appeal. Husband appealed both orders and all appeals were consolidated pursuant to Conn. Practice Book § 61-9.
With regard to the modification of unallocated support, Husband claimed on appeal that the trial court erred in (1) denying the modification without making findings under the Child Support Guidelines, (2) concluding Husband admitted a lack of change in circumstances, and (3) concluding there was insufficient evidence of a change in circumstances.
The Appellate Court noted that Conn. Gen. Stat. § 46b-86 provides two circumstances under which an unallocated order may be modified, namely “(1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines [absent the requisite finding on the record that strict application of the guidelines would be inequitable]….” Weinstein v. Weinstein, 104 Conn. App. 482, 491-92, 934 A.2d 306 (2007). Husband failed to raise the issue of deviation before the trial court, and so the trial court did not err by considering the basis for modification to be a substantial change in circumstances. The Appellate Court found no abuse of discretion here.
Husband’s argument that the trial court’s conclusion that he admitted there was no substantial change was clearly erroneous also failed. The trial court concluded there was no allegation of substantial change in Husband’s motion, which was an accurate claim upon review of the record. Similarly, the Appellate Court found no abuse of discretion in the trial court’s conclusion that there was insufficient evidence to support a change in circumstances. Husband had the burden to definitely establish the occurrence supporting the change in circumstances and he failed to do so.
As to the issues of counsel fees, Husband argued that (1) the trial court improperly granted the motion for counsel fees without specific findings of bad faith, and (2) the trial court improperly granted attorney’s fees and expenses pending appeal without first considering the financial abilities of the parties.
Husband prevailed on the claim regarding bad faith. The scope of the bad faith exception is delineated in Maris v. McGrath, 269 Conn. 834, 848, 850 A.2d 133 (2004). The exception entails a narrow scope requiring lack of any colorability to the claim and specific findings as to actions in bad faith. Given that Husband’s motion prevailed in part (a part not otherwise relevant to this appeal) the Appellate Court found the motion could not be entirely without color.
As to the claim of counsel fees to defend the appeal, the record did not reveal the trial court’s reasoning or consideration of relevant criteria. Husband did not object to the motion or attend the hearing. The Appellate Court determined that the record was therefore inadequate for review.
The Judgment was reversed as to counsel fees under the bad faith exception and affirmed in all other respects.