Amodio v. Amodio, AC

• Decision Date: 15 July 1997
• Docket Number: No. AC,AC
• Citation: 45 Conn.App. 737,697 A.2d 373
• Court: Connecticut Court of Appeals
• Parties: Deborah AMODIO v. Vincent AMODIO. 15692.

Page 373

697 A.2d 373

45 Conn.App. 737

Deborah AMODIO v. Vincent AMODIO.

No. AC 15692.

Appellate Court of Connecticut.

Argued Feb. 24, 1997.

Decided July 15, 1997.

Richard L. Goldblatt, with whom, on the brief, was Michael Boardman, Hamden, for appellant (plaintiff).

Donald L. Altschuler, with whom, on the brief, was Paul J. Dorsi, West Haven, for appellee (defendant).

Before DUPONT, C.J., and LANDAU and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Judge.

The plaintiff appeals from the judgment of the trial court granting the defendant's motion for modification of child support awarded to the plaintiff upon the dissolution of their marriage. On appeal, the plaintiff claims that the trial court improperly reduced an order of child support solely because the court that rendered the judgment of dissolution had failed to make a specific finding that a substantial upward deviation from the child support guidelines was warranted. We reverse the judgment of the trial court.

On July 31, 1990, the parties stipulated, pursuant to General Statutes § 46b-51, that their marriage had broken down irretrievably and requested a dissolution. The parties submitted a lengthy and comprehensive written separation agreement that covered, inter alia, alimony, child support and division of assets. On July 31, 1990, the marriage was dissolved and the agreement, which awarded the plaintiff $325 per week in child support for their two minor children, was approved by the trial judge as an order of the court. ¹ The agreement specifically provided that "[t]here shall be no alimony award to either party."

On April 7, 1995, the defendant sought a modification of the support order. He alleged that the order did not conform to the 1994 child support guidelines and, therefore, should be modified. In addition, the defendant alleged that the order did not conform to the child support guidelines in effect at the time of the original order. After reviewing financial affidavits and hearing testimony, the trial court granted the defendant's motion and ordered a downward modification of the support order to conform to the guidelines now in effect. The modified support order required the defendant to pay $220 per week. The trial court based the modification on the original dissolution court's substantial deviation from the guidelines and its failure to make a specific finding on the record that the application of the guidelines would be inequitable or inappropriate pursuant to General Statutes § 46b-215b(a). The plaintiff appeals from the granting of the motion to modify.

As a threshold matter, we must consider, sua sponte, whether the trial court had jurisdiction to modify the support order. "This court may raise the issue of subject matter jurisdiction sua sponte. Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.... Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993)." (Internal quotation marks omitted.) L & G Associates, Inc. v. Zoning Board of Appeals, 31 Conn.App. 12, 13, 623, A.2d 494 (1993).

Pursuant to § 46b-86(a), ² the trial court has continuing jurisdiction to modify orders for periodic payment of permanent or pendente lite alimony or support, subject to proof of certain statutory conditions. Bunche v. Bunche, 180 Conn. 285, 429 A.2d 874 (1980). Its jurisdiction to modify, however, is limited. Under the statute, modification is allowed "[u]nless and to the extent that the decree precludes modification...." See General Statutes § 46b-86(a). Here, the parties' separation agreement, which was incorporated into the dissolution judgment, provided that, "[t]his Agreement and the supporting Affidavit of Financial Circumstances is predicated on a wage increase on the level of $900 per week including overtime work which the Husband expects to be able to maintain. 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 per week as stated in the affidavit filed herewith." We now must, therefore, decide whether this provision effectively limited the trial court's power to modify the support order.

"Provisions which preclude modification of alimony [or support] tend to be disfavored." Eldridge v. Eldridge, 4 Conn.App. 489, 493, 495 A.2d 283 (1985); see also Cummock v. Cummock, 180 Conn. 218, 222, 429 A.2d 474 (1980); Scoville v. Scoville, 179 Conn. 277, 279, 426 A.2d 271 (1979). If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable. McGuinness v. McGuinness, 185 Conn. 7, 9, 440 A.2d 804 (1981); Scoville v. Scoville, supra, 179 Conn. at 280, 426 A.2d 271; Rau v. Rau, 37 Conn.App. 209, 212, 655 A.2d 800 (1995). "Where a provision which precludes or restricts a later court's power to modify financial orders is clear and unambiguous, however, it will be upheld." Eldridge v. Eldridge, supra, 4 Conn.App. at 493-94, 495 A.2d 283; see also Solo v. Solo, 2 Conn.App. 290, 293, 478 A.2d 255 (1984). ³

In Eldridge the decree contained a clause that stated: "It is not contemplated at this time that the defendant will continue her present part-time employment and that in the future she will be employed full-time, however such employment shall not be considered a change of circumstances until her gross annual income from earnings shall exceed Twenty-Five Thousand Dollars." Eldridge v. Eldridge, supra, 4 Conn.App. at 491, 495 A.2d 283. The plaintiff claimed that in incorporating this provision into the dissolution judgment, the trial court improperly circumscribed the discretion of a later court in determining what constitutes a substantial change of circumstances. We upheld the trial court's judgment and stated that "[t]he condition, which limits but does not preclude a later court from modifying the plaintiff's alimony obligation, is clear and unambiguous. The decree spells out with certainty the extent to which modification is precluded, and we will not inject into its language ambiguities which are not there." Id., at 494, 495...