Fahy v. Fahy

• Decision Date: 31 August 1993
• Docket Number: No. 14647,14647
• Court: Connecticut Supreme Court
• Parties: Richard A. FAHY v. Thelma Ann FAHY.

Page 1328

630 A.2d 1328

227 Conn. 505

Richard A. FAHY v. Thelma Ann FAHY.

No. 14647.

Supreme Court of Connecticut.

Argued June 8, 1993.

Decided Aug. 31, 1993.

Wesley W. Horton, with whom were Alexandra Davis, Raynald B. Cantin and, on the brief, Michael S. Taylor, Legal Intern, for appellant (plaintiff).

Joel M. Ellis, with whom was Catherine P. Kligerman, for appellee (defendant).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

BORDEN, Associate Justice.

The plaintiff, Richard A. Fahy, appeals ¹ from the judgment of the trial court granting the motion of the defendant, Thelma Ann Fahy, for an increase in her periodic alimony. The plaintiff claims that the trial court: (1) incorrectly concluded that Public Acts 1990, No. 90-213, § 46 ² (P.A. 90-213, § 46), permits the modification of an award of periodic alimony made prior to October 1, 1987, the effective date of Public Acts 1987, No. 87-104 ³ (P.A. 87-104), without proof by the moving party of a substantial change in circumstances that was not contemplated at the time of the dissolution of the marriage; and (2) abused its discretion by basing its finding of a substantial change in circumstances on (a) changes in the plaintiff's gross income rather than his net income, and (b) an erroneous calculation of his net income. Although we agree with the plaintiff's first claim as a matter of statutory interpretation, as a matter of common law adjudication, we reach the same result as the trial court. We also agree with the plaintiff's second claim. Accordingly, we reverse the judgment of the trial court and remand the case for a new hearing.

The facts are not in dispute. The plaintiff is a psychiatrist, and the defendant works part-time in a jewelry store. The twenty year marriage of the parties was dissolved on October 6, 1980. At the time of the dissolution, the trial court, Hon. Samuel S. Googel, state trial referee, granted the defendant unallocated alimony and child support of $24,000 per year, to be reduced to alimony of $21,600 per year when the parties' youngest child reached the age of eighteen. The child reached eighteen in 1985.

In this proceeding in 1991, the plaintiff moved to reduce, and the defendant moved to increase, the award of alimony. The trial court, Norko, J., denied the plaintiff's motion, and the plaintiff has not appealed from that denial. The trial court granted the defendant's motion and increased the award of alimony by $9600 per year.

The trial court concluded that General Statutes (Rev. to 1991) § 46b-86 (a) ⁴ eliminated the requirement that in order to modify alimony because of changed circumstances, such circumstances must not have been contemplated at the time the judgment of dissolution was rendered. In this regard, the trial court concluded that the language added to § 46b-86(a) by P.A. 90-213, § 46; see footnote 4; was intended to clarify that the elimination of the contemplation requirement applies to judgments of dissolution rendered both before and after October 1, 1987, and applied to orders of alimony as well as to orders of child support.

The trial court also determined that the plaintiff's financial condition had undergone a substantial change in circumstances. The trial court based this determination upon a comparison of the plaintiff's gross income as a sole medical practitioner in 1980, namely, $95,000, with the gross income of the group of health care providers with whom he had practiced in 1991, namely, $644,964. In addition, the trial court compared the plaintiff's net income in 1980 with his net income in 1991. In that comparison, however, the trial court used posttax income for the 1980 figure and pretax income for the 1991 figure. This appeal followed.

I

The plaintiff first claims that the trial court incorrectly concluded that P.A. 90-213, § 46, as incorporated into § 46b-86(a); see footnote 4; applies to awards of alimony. He argues that the plain language of that portion of § 46b-86(a) affects only orders of support, and that such an interpretation of the statute is consistent with the broad legislative purpose intended by the enactment of P.A. 90-213, § 46.

We agree with the plaintiff that P.A. 90-213, § 46, applies only to orders of child support. Under the plain language of the statute, support orders, whether entered before or after October 1, 1987, may now be modified without regard to whether the change of circumstances had been contemplated at the time of dissolution. We also conclude, however, apart from P.A. 90-213, § 46, but using that public act as a source of our own judicial power, that as a matter of common law the modification of alimony orders should be treated the same as support orders are required to be treated pursuant to P.A. 90-213, § 46. Accordingly, absent a written stipulation or prior judicial order to the contrary, the trial court, when faced with a request for modification of an alimony award, should exercise its discretion without regard to whether the change of circumstances had been contemplated at the time of the previous award.

Some statutory history is helpful to an understanding of this issue. Before the enactment, in 1987, of P.A. 87-104, in order to secure a modification of an order of either periodic alimony or of child support, the moving party was required to establish that: (1) under General Statutes (Rev. to 1985) § 46b-86(a), there had been a substantial change in circumstances affecting one of the parties; and (2) under a common law judicial gloss on that statute, the substantial change in circumstances was not contemplated at the time of the dissolution of the marriage. Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976); see also Darak v. Darak, 210 Conn. 462, 465, 556 A.2d 145 (1989). The enactment of P.A. 87-104, the gist of which remains as part of the first sentence of § 46b-86(a); compare footnotes 3 and 4; repealed the second part of that test.

In Darak, however, we held that the amendment to the modification statute applied only prospectively, that is, to modifications of dissolution judgments that had been rendered on or after October 1, 1987, the effective date of the public act. Darak v. Darak, supra, 210 Conn. at 469, 556 A.2d 145. Central to our rationale for this holding was the absence of a specific indication of a legislative intent to "disrupt settled expectations" by applying a substantive change retrospectively. Id. Under Darak, in order to modify an award of alimony or an order of support, a party seeking a modification of a judgment of dissolution rendered before October 1, 1987, was required to establish that the change of circumstances had not been contemplated at the time of the judgment; and a party seeking to modify such a judgment rendered on or after October 1, 1987, was not required to establish that the change of circumstances had not been so contemplated.

The legislature again amended § 46b-86(a) by P.A. 90-213, § 46, which took effect on July 1, 1990. That public act stated: "After the date of judgment, modification of any child support order issued before or after the effective date of this act may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution."

The enactment of P.A. 90-213, § 46, was followed by our decision in Turner v. Turner, 219 Conn. 703, 595 A.2d 297 (1991). In Turner, we considered the retroactivity of a different 1990 public act, namely, Public Acts 1990, No. 90-188. Id., at 712-16, 595 A.2d 297. In the course of that discussion, we recognized that the legislature had, at the same session, enacted P.A. 90-213, § 46, in order "to reverse the effect of our judgment in Darak v. Darak, supra." Turner v. Turner, supra, at 717, 595 A.2d 297. We stated that "[t]he legislature's prompt action in adopting the expressly retrospective language of P.A. 90-213, § 46, unambiguously clarifies its original intention that P.A. 87-104 applies to all alimony and support orders, regardless of the date on which they were entered." (Emphasis added.) Id. It is the validity of the reference to "alimony" orders in Turner that is at issue in this case, because the trial court understandably followed that language in entering its order in this case.

A fair reading of Turner, however, makes clear that our reference to alimony was dictum, because neither an alimony award nor P.A. 90-213, § 46, was at issue in that case. In light of this dictum, therefore, this case requires us to decide for the first time whether § 46b-86(a), as amended by P.A. 90-213, § 46, provides for modification of an award of alimony that had been made prior to October 1, 1987, the effective date of P.A. 87-104, without a showing of a substantial change in circumstances that was not contemplated at the time of the dissolution order. Upon plenary consideration of this issue, we agree with the plaintiff that, as a matter of statutory interpretation, the phrase, "child support order," as used in P.A. 90-213, § 46, cannot be read to mean alimony as well. We therefore conclude that § 46b-86(a) does not provide that an order of periodic alimony that had been entered prior to October 1, 1987, may be modified without proof that the requisite change of circumstances had not been contemplated at the time the order was entered.

" 'We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature....' " Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). " 'In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general...