Jannetty v. Jannetty, 2391

• Decision Date: 19 June 1984
• Docket Number: No. 2391,2391
• Citation: 476 A.2d 636,2 Conn.App. 160
• Court: Connecticut Court of Appeals
• Parties: Sandra JANNETTY v. Joseph JANNETTY.

Page 636

476 A.2d 636

2 Conn.App. 160

Sandra JANNETTY v. Joseph JANNETTY.

No. 2391.

Appellate Court of Connecticut.

Argued March 7, 1984.

Decided June 19, 1984.

Gary I. Cohen, Waterbury, with whom, on brief, was John C. Bullock, Waterbury, for appellant (plaintiff).

Paul J. Yamin, Waterbury, for appellee (defendant).

Before TESTO, DUPONT and BORDEN, JJ.

PER CURIAM.

This is an appeal ¹ from a postjudgment modification of a judgment rendered on March 17, 1982, in an action for the dissolution of marriage. The original judgment, in pertinent part, ordered that the parties would have joint custody of their fifteen year old child, with the recommendation that physical custody be with the plaintiff mother. The defendant was ordered to pay seventy dollars per week to the plaintiff for the support of the minor child "while [the child was] residing with the plaintiff or such daily portion thereof if not continuous." Shortly after the rendition of the judgment, the defendant filed a motion to reargue and clarify, which was denied, after a hearing, on May 4, 1982. Nine days later the defendant filed a "motion for physical support and custody." The trial court, DeMayo, J., modified the judgment by ordering that physical custody of the minor child be awarded to the defendant and that the plaintiff pay the defendant forty dollars per week as child support. The sole issue on appeal is whether the trial court erred in modifying the original financial orders. ² The claim of the plaintiff is that there was no evidence of a substantial change in circumstances of either party upon which such a modification could be based.

General Statutes § 46b-86(a), in pertinent part, provides that "any final order for the periodic payment of permanent alimony or support ... may at any time thereafter be continued, set aside, altered or modified ... upon a showing of a substantial change in the circumstances of either party." Decisional law makes it clear that the substantial change must not have been contemplated at the time of the original decree and must have arisen thereafter. Connolly v. Connolly, 191 Conn. 468, 473, 464 A.2d 837 (1983); Howat v. Howat, 1 Conn.App. 400, 402-403, 472 A.2d 799 (1984).

In the present case, the defendant did not show that there had been an uncontemplated substantial change in the circumstances of either party between the time of the final judgment and the modification, a period of less than two months.

As of the date of the original judgment, the memorandum of decision of the trial court makes it clear that the son was living with his paternal grandmother during the week and with his father during the weekend. The son, at that time, stated that he wished to live with his father. Since the trial court believed that the son's interests might better be served by residing with his mother, it recommended that physical custody be with the mother. In contemplation of the eventuality that his son would reside with him, the defendant sought certain items of furniture which were in possession of the plaintiff. The trial court denied that request. The defendant's post-trial motion for physical custody states, as its basis, that the minor child "desires to live with the defendant." Since that fact was contemplated by the trial court at the time of the original judgment, it cannot serve as a foundation for the substantial change in circumstances necessary for modification of child support orders. Furthermore, the trial court, knowing...