In Short: (1) The court must have consent in order to waive the 120-day limit of Practice Book § 11-19; (2) the Appellate Court clarified what language is necessary in an agreement in order to abrogate the requirement to show a substantial change in circumstances for modification of alimony under § 46b-86.
The parties were divorced in 2007. The judgment provided, inter alia, “The husband shall pay to the wife the sum of $1.00 per year as alimony…. Alimony shall be modifiable as to amount if the wife earns less than $100,000 per year. Alimony shall not be modifiable as to term.” Post-judgment litigation had resulted in two prior appeals.
The trial court heard evidence on a motion regarding children’s expenses at short calendar. Thereafter, the trial court sent two emails to the parties requesting permission to waive the 120-day requirement of Practice Book § 11-19, to which Husband did not respond. The trial court then scheduled a status conference, at which Husband did not appear. Husband filed a timely motion for reassignment which was denied.
Wife filed a motion to modify alimony alleging she had lost her job, had health issues, Husband’s income had increased, and her earning capacity was reduced. The trial court held a hearing at which both parties testified. The trial court found that Wife had been employed in 2007 at the time of the dissolution earning $122,000 per year. The trial court credited Wife’s testimony that she had lost her job and her earning capacity was $30,000 per year presently. The trial court further found, inter alia, that medical expenses constituted 30% of Wife’s weekly expenses. The trial court granted the motion and ordered Husband to pay alimony in the amount of $700 per week. Wife then filed a motion to correct various aspects of the decision, Husband filed an objection, and the trial court issued a corrected decision, resulting in an amended appeal.
Husband’s first claim on appeal is that the trial court improperly denied his motion for reassignment of Wife’s motion for order regarding children’s expenses. Husband argued that he did not consent to the trial court’s request for extension of time to issue its decision beyond the 120 days permitted under Practice Book § 11-19, and so the motion for reassignment should have been granted. Wife argued that Husband waived his rights as to this issue by failing to respond to the court’s emails requesting an extension of time and failing to attend a status conference scheduled after he failed to respond. Husband argued that he failed to appear at the status conference because he went to the wrong courthouse (the courthouse he stated he went to was the one that was identified in the JDNO for the status conference). The Appellate Court held that the finding that Husband waived the 120-day requirement was clearly erroneous. While the Appellate Court did not condone the lack of response to the court, it could not construe silence as consent. The trial court was reversed with direction to reassign the motion.
Husband’s second claim on appeal was that the trial court improperly granted Wife’s motion to modify alimony. The Appellate Court noted that it was unclear whether the trial court had determined that Wife had established a change in circumstances or instead had construed the alimony provision itself to abrogate the statutory requirement of a substantial change in circumstances under § 46b-86. The Appellate Court then presumed that the trial court had made a finding of substantial change in circumstances, predicated on a clearly erroneous factual finding as to Wife’s medical expenses, and reversed in part on that basis. The Appellate Court clarified, however, that the language of the Judgment did not abrogate the requirement that a substantial change in circumstances be found as a condition predicate to modification. The Appellate Court held that the order that the alimony provision was modifiable if Wife’s income fell below $100,000 per year is not sufficient to trigger de novo review or a second look by the trial court without a finding of substantial change in circumstances.
Husband’s third claim, that the trial court improperly granted Wife’s motion to issue a corrected memorandum of decision was mooted by the reversal on his second claim. As the underlying decision was reversed, there remained no judgment to correct. Husband’s fourth claim, that a subsequent judge improperly further modified his alimony order was also mooted by the reversal of the earlier modification.
Judge Bear issued a partial concurrence and partial dissent. His dissent argued that the language of the Judgment was sufficient to trigger a modification without a showing of substantial change in circumstances if Wife’s income fell below $100,000 per year.
The judgment was reversed only as to Wife’s motion for order and motion to modify alimony and remanded with direction to reassign the motion for order and for a new hearing on the motion to modify alimony.