Davis v. Davis, 200 Conn. App. 180 (2020) (due process & “all pending motions”; transfer of custody and change in child support; § 46b-224).
Officially released September 15, 2020.
In Short: (1) notice of “all pending motions” will satisfy due process notice requirements to act on any pending motion, and (2) § 46b-224 may act to automatically suspend child support with an ordered change in custody where support is not otherwise addressed.
The parties were previously divorced by agreement, sharing joint legal custody of their two children. Orders entered inter alia, that Husband was to pay child support, Wife was to pay certain monies to Husband until she vacated the marital residence, and Husband was to pay certain expenses to maintain the marital residence until it was sold.
The parties filed numerous post-judgment motions. The trial court provided notice for a hearing at which it would address “all pending motions.” The trial court held the hearing, at which both parties sought monies allegedly due from one another and Husband argued that the child support arrearage should not include a period of time during which the child was ordered to live with him, notwithstanding a lack of any order modifying child support during that period. The trial court found monies due from each party and offset them against each other to order Husband to pay a certain sum to Wife. The trial court did not credit Husband for the time the child had been ordered to live with him when calculating his child support arrearage. Husband appealed.
Husband’s first argument was that the trial court’s modification of alimony obligation violated his due process right to adequate notice. The Appellate Court held that the notice that “all pending motions” would be heard was sufficient notice to comply with the requirements of due process.
Husband next argued that he was improperly ordered to reimburse Wife for certain expenses. The Appellate Court held that the order was an appropriate remedial order enforcing the terms of the Judgment. Husband’s claim as to unclean hands for Wife’s alleged interference was both unpreserved and unpersuasive.
Husband’s final claim was that the trial court improperly failed to apply § 46b-224 to credit the time the child was in his custody when calculating the support arrearage. The Appellate Court applied plenary review to the question of statutory interpretation. § 46b-224 provides in relevant part: “Whenever the . . . Superior Court … orders a change or transfer of the … custody of a child who is the subject of a preexisting support order, and the court makes no finding with respect to such support order, such … custody order shall operate to: (1) Suspend the support order if … custody is transferred to the obligor under the support order; or (2) modify the payee of the support order to be the person or entity awarded … custody of the child by the court, if such person or entity is other than the obligor under the support order.” The Appellate Court held that, because an order entered transferring custody of the minor child to Husband, the child support order was suspended pursuant to statute.
The Judgment was reversed only as to the calculation of Husband’s child support arrearage and affirmed in all other respects.