Ross v. Ross, 200 Conn. App. 720 (2020) (post-judgment modification of alimony & unallocated support; counsel fees).
Officially released October 13, 2020.
In Short: (1) In a post-judgment modification of unallocated support, the trial court must consider what portion of the award was intended to constitute child support and what portion alimony and then, if it is to deviate, make an on-the-record finding that application of the guidelines would be inequitable; (2) post-judgment counsel fees were interrelated in this case with the modified financial awards and therefore remanded for consideration with the other issues.
The parties were divorced by separation agreement in 2013. The parties had four children, three of whom were minors at time of dissolution. The remaining children would reach the age of majority in 2014, 2017, and 2019. Wife was awarded physical custody. Husband was to pay unallocated support in the amount of 45% of his gross base cash salary and 35% of his gross cash bonus, stepping down to 40% and 25% respectively in 2016.
In 2017, Husband filed a motion to modify the unallocated support orders, alleging that only one child remained eligible for support, that Wife was cohabitating with her fiancé, that Wife was employed earning greater than her safe harbor of income, and that Husband’s expenses had increased as he is paying 100% of the expenses of two children in college. Husband sought a reduction in unallocated support payments and in required life insurance. Wife then filed a motion for counsel fees, citing Practice Book § 25-24.
The trial court held a hearing on both motions and received evidence of past and current financial affidavits and current child support guideline worksheets. Wife submitted an affidavit of services in the amount of $42,582, of which all but $82 had been paid.
The trial court found that the incomes of the parties were essentially the same as at time of Judgment, but that Husband’s estate had increased from $500,000 to $1.8m, whereas Wife’s estate had decreased. The trial court found that Wife had been financially irresponsible, but that this had little effect on the disparity in the parties’ assets and that Wife was underemployed with “little reason.” The trial court modified the Judgment and reduced Husband’s obligation to 37.5% of his base annual salary retroactive to the date of the motion, and indicated that it also addressed the youngest child becoming ineligible for child support. The trial court ordered Husband to pay $27,500 in counsel fees so as not to undermine the other court orders. Husband filed a motion for clarification as to whether the trial court intended to eliminate his obligation to pay 25% of his gross cash bonus as part of the unallocated support, and the trial court clarified that it did not modify that aspect of support.
Husband appealed arguing that the trial court erred in (1) abusing its discretion by failing to apply the child support guidelines and modifying the unallocated order without first unbundling the support portion of the order, and (2) by abusing its discretion by ordering Husband to pay counsel fees.
The Appellate Court first reviewed Husband’s claim that the trial court failed to apply the child support guidelines and to consider what portion of the unallocated award constituted child support, under the abuse of discretion standard. The Appellate Court provided analysis of the law in terms of what the trial court must consider in modifying an unallocated order. After determining a substantial change in circumstances existed, the trial court was required to determine what portion of the unallocated order, as revised in 2016, constituted child support and what portion constituted alimony. Here the trial court did not make any reference to application of the guidelines and did not state a rationale for its reduction. Thus, The Appellate Court held that the trial court abused its discretion in failing to consider the guidelines as required and then applying an on the record finding that application would be inequitable. The trial court further erred in addressing the youngest child attaining the age of 18 but making the order retroactive to a date when the youngest child was still a minor. The modification was reversed and remanded for a hearing to determine what portion of the award should be applied to child support and what portion to alimony. The trial court should “apply the child support guidelines as they existed in 2013 at the time of the original award to the 2016 award, as modified by the terms of the parties’ separation agreement. Specifically, the court must ascertain the intent of the parties with respect to what portion of the unallocated alimony and child support order was intended for child support.”
The Appellate Court did not consider Husband’s argument that the trial court abused its discretion in ordering Husband to pay counsel fees where Wife was capable of paying her own fees and had paid almost all of what was charged to her. Instead, the Appellate Court determined that, while not covered by the mosaic doctrine in a post-judgment modification hearing, the orders were intertwined with the modification orders to the point where an analysis of abuse of discretion as to counsel fees would be affected by the trial court’s other financial orders.
Reversed and remanded.