Diamond v. Diamond

• Decision Date: 31 August 1993
• Docket Number: No. 11845,11845
• Citation: Diamond v. Diamond, 631 A.2d 1157, 32 Conn.App. 733 (Conn. App. 1993)
• Court: Connecticut Court of Appeals
• Parties: Jill DIAMOND v. Stuart DIAMOND.

Page 1157

631 A.2d 1157

32 Conn.App. 733

Jill DIAMOND v. Stuart DIAMOND.

No. 11845.

Appellate Court of Connecticut.

Argued June 2, 1993.

Decided Aug. 31, 1993.

John Higgins Kane, with whom, on the brief, was G. Kenneth Bernhard, Bridgeport, for appellant (defendant).

Gloria L. Kelly, Bridgeport, for appellee (plaintiff).

Before FOTI, HEIMAN and SCHALLER, JJ.

HEIMAN, Judge.

The defendant appeals from the orders of the trial court granting the plaintiff's motions for contempt, modification of child support and counsel fees. We reverse the trial court's orders in part, affirm them in part, and remand the matter for further proceedings.

On appeal, the defendant asserts that the trial court improperly (1) ordered, pursuant to the plaintiff's motion for modification or motion for contempt, a retroactive modification of child support in contravention of the prohibition against such a retroactive modification contained in General Statutes § 46b-86(a) and the common law of this state, (2) ordered a retroactive modification of child support when neither the motion for modification nor the motion for contempt contained a request for retroactive modification, thereby depriving him of proper notice that the plaintiff would request or the court would consider such relief, (3) found an arrearage in child support payments, pursuant to the plaintiff's motion for contempt, when the relief ordered goes beyond its power and jurisdiction and is different and greater than the relief requested in the plaintiff's motion for contempt, thereby depriving him of proper notice that the plaintiff would request or the court would consider such relief, (4) awarded the plaintiff $3600 in counsel fees without any evidence or finding entitling her to an award of counsel fees for services or demonstrating any finding that such fees were reasonable after an appropriate evidentiary showing.

The following facts are necessary to a resolution of this appeal. The plaintiff and the defendant married on December 1, 1979. One child was born of this union. On February 2, 1988, after the parties' marriage irretrievably broke down, the marriage was dissolved and the plaintiff was granted custody of their daughter.

The parties entered into a separation agreement setting forth the conditions and terms concerning alimony, the division of their joint property, support, and other rights that arose from their marriage. The agreement granted custody of the parties' minor child to the plaintiff subject to the defendant's rights of visitation. It required neither party to pay alimony to the other. The defendant also agreed to pay child support in the amount of $50 per week as long as his gross weekly income did not exceed $384.61. If his gross weekly income exceeded that amount, the defendant agreed to pay $75 per week. The defendant further agreed that there was an existing arrearage of $665. Under the agreement, child support obligations would continue until the minor daughter reached the age of eighteen years.

After reviewing the parties' agreement, the court found it to be fair and equitable and ordered that the agreement be made part of the court file. The court further ordered that the agreement be incorporated by reference into the court's order and decree and that each party abide by the agreement's terms and conditions.

On August 24, 1990, the plaintiff filed a motion for modification of child support. The court granted the motion on September 27, 1990, and increased the child support payments to $165 per week retroactive to September 13, 1990. The defendant did not appeal from this judgment.

On April 4, 1991, the trial court, Hauser, J., granted the defendant's motion for modification of child support payments and reduced the child support from $165 per week to $65 per week, because the defendant was, at that time, unemployed. The court also ordered an additional payment of $15 per week to reduce an arrearage of $1605. The court ordered that the defendant provide the plaintiff with reports every sixty days concerning his employment status until such time as he was again employed. No appeal was taken from that order by either party.

By motion dated September 4, 1992, the plaintiff sought to have the defendant held in contempt. She claimed that the defendant had failed to comply with the prior court order that he file reports concerning his employment status. The motion for contempt, however, did not claim that the defendant had failed to make payments in accordance with the court order that modified the child support. The plaintiff sought relief, in the motion for contempt, by requesting an order that the defendant comply with the prior order regarding reports as to employment and that he be ordered to pay attorney's fees and costs.

By a separate motion dated the same day, the plaintiff sought an order requiring the defendant to pay counsel fees with regard to the motion for contempt heard by the trial court on April 4, 1991. The motion set forth a claim that the request for counsel fees in conjunction with the motion decided on April 4, 1991, had been marked "off without prejudice until such time as we see whether [the defendant] becomes reemployed at a future date." The motion set forth that the plaintiff based her request for counsel fees on the defendant's failure to comply with the reporting requirements.

A third motion sought modification of the order of child support. In this motion, the plaintiff claimed that the defendant was employed and that his employment constituted a substantial change in circumstances. The plaintiff sought modification of the order of support as well as attorney's fees and costs. The plaintiff made no claim in the motion for a retroactive application of any modified order, nor did the plaintiff specifically seek the application of General Statutes § 46b-86(a), which authorizes the trial court to make support order modifications retroactive to the date of service of the notice of the pending motion. ¹ The record reflects that statutory notice was served on the defendant on September 20, 1992.

The trial court granted the plaintiff's motion for modification and ordered that the amount of the child support be increased to $103 per week on the basis of the defendant's new employment. The defendant does not appeal from the modification of his child support obligation from the date of the order, and, it does not appear that he objects to the retroactive modification of that obligation to the date of service of the motion for modification on September 20, 1992.

Additionally, the trial court found that the defendant had not been paying support commensurate with the moneys he earned from August 1, 1991. The trial court also found that the defendant was in wilful disobedience of the court order requiring him to keep the plaintiff advised of his employment status. Accordingly, the court set amounts that it believed that the defendant was earning during periods between August 1, 1991, and October 8, 1992. The trial court then fixed arrearages based not on the amount of the unmodified support payment ordered by the court in the prior proceedings, but upon the amount the trial court found the defendant should have been paying on the basis of his earnings during those time periods. For the period between August 1, 1991, and December 31, 1991, the court fixed an arrearage of $1567; for the period between January 1, 1992, and July 31, 1992, the court fixed an arrearage of $2015; and for the period between August 1, 1992, and October 8, 1992, the court fixed an arrearage of $456. On the basis of this method of computation, the trial court found a total arrearage of $4038. The trial court also added an attorney's fee for these proceedings in the amount of $1000.

The trial court also determined that, with respect to the claim for attorney's fees arising out of the prior proceedings before Judge Hauser on April 4, 1991, the defendant should pay the sum of $2639.50, including costs. The court rounded off the attorney's fees and costs for the two hearings to $3600.

In addition to the order that the defendant pay current support in the amount of $103 per week, the court ordered the defendant to continue to pay $15 per week on the old arrearage based on the previous order, and $27 per week on the new arrearage that the trial court determined on the basis of the defendant's unreported earnings and not on the basis of any existing order. The trial court further ordered that when the old arrearage was paid, the defendant was then to pay the sum of $42 per week to retire the new arrearage. While it is not clear from the order itself, it appears that the trial court added the award of attorney's fees to the new arrearage to be retired as a part of the weekly order of payment. ²

I

The defendant asserts that the trial court, in finding an arrearage on a nonexistent order, improperly created a retroactive modification of the child support order that had been previously entered by the court and not further modified before the date when the motions that constitute the subject matter of this appeal were decided. We agree.

The status of the child support order, when the motion for contempt was filed and heard, obligated the defendant to pay the sum of $65 per week as current support and $15 per week on an arrearage of $1605. In the motion for contempt, the plaintiff did not make a claim that the defendant failed to make payments as ordered, but only alleged his failure to supply employment information as ordered by the court. The plaintiff did not claim entitlement to some form of retroactive modification as a result of the failure to comply, but sought, by way of relief, only that the defendant be found in contempt, ordered to supply the information concerning his employment status immediately, and ordered to pay costs and counsel fees.

The trial court did not characterize its action as creating a modification of the...