Amodio v. Amodio

Decision Date25 January 2000
Docket Number(AC 15692)
Citation743 A.2d 1135,56 Conn. App. 459
CourtConnecticut Court of Appeals
PartiesDEBORAH A. AMODIO v. VINCENT N. AMODIO

O'Connell, C.J., and Foti, Lavery, Landau, Schaller, Spear, Hennessy, Vertefeuille and Dupont, JS. Richard L. Goldblatt, for the appellant (plaintiff).

Donald L. Altschuler, with whom, on the brief, was Richard Altschuler, for the appellee (defendant).

Opinion

DUPONT, J.

The primary issue of this appeal is whether General Statutes (Rev. to 1989) § 46b-86 (a), as amended by Public Acts 1990, No. 90-213, § 46,1 precludes modification of the amount of child support awarded at the time of a judgment of dissolution of marriage in accordance with a written agreement of the parties that precluded such modification,2 which agreement was incorporated by reference into the judgment of dissolution. The support award was substantially more than the child support guidelines promulgated pursuant to Public Acts 1989, No. 89-203, § 1, now General Statutes § 46b-215a,3 and the court rendering the judgment of dissolution made no specific finding that the application of the child support guidelines would be inequitable or inappropriate. The plaintiff appeals from the judgment of the trial court granting the defendant's motion to modify the amount of child support.4

This is the second time this issue has been raised in this court. We previously reversed the judgment of the trial court on the ground that the trial court lacked subject matter jurisdiction to modify the defendant's child support obligation because the dissolution decree clearly and unambiguously foreclosed modification of the support order under the financial circumstances presented. Amodio v. Amodio, 45 Conn. App. 737, 742, 697 A.2d 373 (1997). Our Supreme Court reversed our decision, concluding that the trial court had the jurisdiction to entertain the motion for modification. Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999). The case was remanded to this court for a determination of "whether the trial court properly exercised its authority in granting the motion to modify."5 Id., 732. The Supreme Court made it clear that its decision that the trial court had jurisdiction "does not mean necessarily that the trial court correctly interpreted or applied the statute in this case; nor does it mean that modification was warranted." Id.

The following facts are relevant to our disposition of this appeal. The plaintiff, Deborah A. Amodio, and the defendant, Vincent N. Amodio, were married on May 11, 1979, and had two children born in 1983 and 1985. On July 31, 1990, the parties stipulated that their marriage had broken down irretrievably and requested a dissolution. The parties submitted a lengthy and comprehensive written separation agreement to the court that covered, inter alia, alimony, child support, medical insurance for the children, counsel fees and division of assets. The agreement was drafted by the defendant's counsel. The judgment of dissolution, dated July 31, 1990, provided: "It is further adjudged and decreed that the parties comply with the provisions of an Agreement between them dated July 26, 1990, which is found by the Court to be fair and equitable under all circumstances and is approved and incorporated herein by reference." The agreement and the judgment provided for $325 per week in child support for their two minor children and did not award alimony to either party.

The agreement provided for the joint custody of the two minor children and for reasonable visitation by the defendant with the children, who were to reside with the plaintiff. The defendant had the right to claim the two children as his dependents for tax purposes. Paragraph 3D stated: "It is agreed that any modification of support orders sought in the future shall be based upon a change in circumstances reflecting an increase in gross wages above the base of $900.00 per week as stated in the affidavit filed herewith."6 Paragraph eleven of the agreement provided: "The parties agree that this Agreement shall be submitted to the Court before which said pending action for dissolution shall be tried, and in the event a judgment of dissolution shall be entered in said action or any other action which may hereafter be brought in favor of either party against the other, the parties hereto agree that they shall be bound by all the terms of this Agreement, and this Agreement shall not be merged in any decree or judgment that may be granted in such action, but shall survive the same and shall be forever binding and conclusive on the parties, and the decree or judgment in such action shall incorporate in full or in substance the terms of this Agreement."

After paying child support as ordered in the judgment of dissolution for almost five years, the defendant, on April 7, 1995, sought a modification of the support order because the order did not conform to the child support guidelines as they existed in 1990 or as of the date of the defendant's motion to modify. He sought a support order pursuant to the guidelines of June 1, 1994.

At the hearing on the motion to modify, the defendant testified that he worked for a family business at the time of dissolution and still did, and had a gross income of $900 per week both at the time of the dissolution and at the date of his testimony. The trial court noted that the guidelines were in effect at the time of the dissolution, and that the nonmerger of the agreement in the decree might mean that the plaintiff would have a separate action against the defendant if there were a downward modification of child support. The court stated that the amount of child support currently being paid is not in accordance with the guidelines, and that, on the basis of McHugh v. McHugh, 27 Conn. App. 724, 609 A.2d 250 (1992), because the court entering the initial orders did not explain the deviation, the guidelines govern.

The defendant claimed at the modification hearing that the original trial court acted improperly, as a matter of law, when it rendered its judgment of child support, which granted more than 15 percent in excess of the child support guidelines then in effect, without making a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. He also claimed, as a matter of law, that he was entitled to a modification in accordance with the child support guidelines in effect at the time of his motion because the amount he was paying exceeded the guidelines by more than 15 percent. If the defendant is correct that the dissolution court acted improperly, then the parties' agreement that the child support was nonmodifiable until the husband's income exceeded $900 per week, would not prevail and the opening clause of § 46b-86 (a),"[u]nless and to the extent that the decree precludes modification," would be negated. The trial court then would have the power to modify the support order.

The trial court, Pittman, J., ordered a downward modification retroactive to May 1, 1995, from $325 per week, the figure in the parties' agreement, to $220 per week, the figure that, if modification were proper, was established by the guidelines. The court also found an overpayment of child support by the defendant of $3885. The trial court noted that the dissolution court, Mihalakos, J., had substantially deviated from the guidelines and had not made a specific finding on the record that the application of the guidelines would be inequitable or inappropriate pursuant to § 2 of Public Acts 1989, No. 89-203, which was subsequently codified as General Statutes § 46b-215b (a). The court based its modification on the fact that the current amounts of child support being paid were not in accordance with the guidelines and that the case of McHugh v. McHugh, supra, 27 Conn. App. 724, makes it clear that unless the dissolution court explains the statutory deviation, the child support guidelines would govern.

Two statutes, §§ 46b-86 (a) and 46b-215b (a), and their connection with each other, are involved in this appeal. The purpose of both statutes is to assure that children receive adequate financial support from their parents, thereby reducing governmental expenditures for their support. Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).

"Since 1984, the United States Congress has actively encouraged states to take measures to assure that children receive adequate financial support from their parents, thereby reducing governmental expenditures for support of children. The Child Support Enforcement Amendments of 1984, enacted as Public Law 98-378 and codified at 42 U.S.C. § 666 et seq., amended part D of title IV of the Social Security Act to require that states establish procedures to improve the effectiveness of child support enforcement (IV-D) programs. In those amendments, Congress conditioned the states' receipt of federal funds for [Aid to Families with Dependent Children] programs and for IV-D programs upon compliance with these requirements. Among the requirements was a provision directing states to establish, by law or by judicial or administrative action, guidelines for child support award amounts that would be available to, but not binding upon, judges who had the authority to enter child support orders. 42 U.S.C. § 667 (a). Such guidelines were intended to provide reliable benchmarks for use in quasi-judicial proceedings, to expedite awards of child support, and to guide courts to more equitable awards in order to address the `feminization of poverty' resulting from consistent underestimates of the cost of rearing children by increasing the average level of awards. See, e.g., R. D. Thompson & S. F. Paikin, `Formulas and Guidelines for Support,' 36 Juv. & Fam. Ct. J. 33 (1985).

"Four years later, Congress enacted the Family Support Act of 1988 to increase the responsibility of the states to assist all families, including those...

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