Officially released April 30, 2019.
In Short: Increases in college costs may constitute a substantial change in circumstances; with sufficient evidence the court may consider future health; a finding of contempt does not prohibit a retroactive modification in favor of the contemnor.
The Facts: The parties married in 1986, had three children and divorced in 2004. The Judgment provided that Husband would pay $20,000 per month unallocated support and included a clause limiting the circumstances of modification.
The Malpesos had previously visited the appellate court on multiple occasions and the yo-yoing between the superior and appellate court on numerous motions created a ridiculously intricate mess of financial decisions leading up to this appeal.
Immediately preceding this appeal, the trial court held hearings on four different motions to modify and a motion for contempt filed over the span of three years. The trial court unbundled the unallocated support order and granted several motions to modify, calculated an arrearage and entered orders of counsel fees.
The First Substantial Issue on Appeal was Wife’s claim that the trial court erred by improperly concluding that Husband’s payment of college expenses constituted a substantial change in circumstances warranting modification of alimony. The trial court determined that the doubling of college tuition cost since the date of Judgment coupled with additional expenses that Husband paid, including over $80,000 in one year for tutors for one of the children, sufficed for a substantial change in circumstances. Wife argued that the college expenses were covered by the agreement and there was no express provision providing for modification on the basis of those expenses. The Appellate Court Held § 46b-86 governs modification of alimony requiring that the moving party demonstrate “that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it.” Olson v. Mohammadu, 310 Conn. 665, 671-72. The Appellate Court found no abuse of discretion in the trial court’s finding that the increase of college cost and outsized expenses constituted a substantial change in circumstances.
The Second Substantial Issue on Appeal was Wife’s claim that the trial court erroneously concluded that Husband suffered from cellulitis at the time of the proceedings on remand and improperly speculated regarding his risk of future medical conditions. The Appellate Court Held that the finding of “current cellulitis” referred to the current effects of having previously suffered from the condition. It further held that the finding of future risk was well supported by the evidence and therefore not speculative.
The Third Substantial Issue on appeal was whether the trial court erred in granting retroactivity on two of the motions to modify. Wife argued that she was improperly prohibited from testifying relevant to retroactivity and that Husband had unclean hands due to his contempt finding and was not entitled to retroactivity. The Appellate Court Held that when considering retroactivity, the trial court “may take into account the long time period between the date of filing a motion to modify, or … the contractual retroactive date, and the date that motion is heard …. The court may examine the changes in the parties’ incomes and needs during the time the motion is pending to fashion an equitable award based on these changes.” LeSueur v. LeSueur, 172 Conn. App. 767, 780 (2017). A “trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the trial court’s discretion…. Before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating the error was harmful.” Porter v. Thrane, 98 Conn. App. 336 (2006). The Appellate Court did not decide whether the evidentiary ruling itself was abuse of discretion and skipped directly to determining that, if it was error, it was not harmful as Wife did ultimately testify without objection regarding the issues as to retroactivity. Finally, there was no authority requiring the trial court to deny retroactivity based on a finding of contempt and the trial court did not abuse its discretion.
Wife claimed that the trial court erred in failing to consider the totality of the financial circumstances on multiple modifications. The Appellate Court was unpersuaded. The Judgment was affirmed.
