Mullin v. Mullin, 10919

• Court: Connecticut Court of Appeals
• Writing for the Court: Before DUPONT; DUPONT
• Citation: Mullin v. Mullin, 612 A.2d 796, 28 Conn.App. 632 (Conn. App. 1992)
• Decision Date: 18 August 1992
• Docket Number: No. 10919,10919
• Parties: Deborah MULLIN v. Vincent R. MULLIN.

Page 796

612 A.2d 796

28 Conn.App. 632

Deborah MULLIN v. Vincent R. MULLIN.

No. 10919.

Appellate Court of Connecticut.

Argued June 10, 1992.

Decided Aug. 18, 1992.

Philip K. Meister, Hartford, for appellant (plaintiff).

Vincent R. Mullin, pro se.

Before DUPONT, C.J., and NORCOTT and HEIMAN, JJ.

DUPONT, Chief Judge.

The plaintiff appeals from the judgment of the trial court denying her motion to modify child support. Because we conclude that the trial court failed to consider whether child support should be modified on the basis of a substantial deviation from the guidelines pursuant to General Statutes § 46b-86 as amended by Public Acts 1991, No. 91-76, ¹ we reverse the judgment of the trial court.

The marriage of the parties was dissolved on February 5, 1988. There was one child born to the parties during the marriage, who was a minor at the time of the dissolution. Pursuant to the judgment of dissolution, the defendant was ordered to pay child support in the amount of $75 per week.

On November 7, 1991, the plaintiff filed a motion to modify both the visitation order, which is not the subject of this appeal, and the support order. The motion alleged that, since the date of judgment, "the circumstances of the parties have substantially changed."

On December 4, 1991, both parties appeared before the court represented by counsel. The financial affidavit submitted by the defendant showed a net weekly income of $453.73. The financial affidavit submitted by the plaintiff showed a net weekly income of $248.81. It should have shown a net weekly income of $371.07 based on the figures provided. ² At the hearing on the motion, counsel for the plaintiff argued for child support in accordance with the Connecticut child support guidelines. According to the plaintiff, the guidelines require weekly child support in the amount of $117. Counsel for the defendant argued that there should be a deviation from the guidelines because of the expenses incurred by the defendant in exercising his visitation rights.

On December 5, 1991, the trial court issued its memorandum of decision denying the motion after concluding that "the court does not find such a change of circumstances as would warrant a modification of child support." This appeal followed.

The court has the power to modify a child support order on the basis of a substantial deviation from the guidelines independent of whether there has been a substantial change in the circumstances of a party. "Both the 'substantial change of circumstances' and the 'substantial deviation from child support guidelines' provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole, as reflected in the mandatory periodic revisions of the child support guidelines. See General Statutes § 46b-215a." Turner v. Turner, 219 Conn. 703, 718, 595 A.2d 297 (1991).

The plaintiff's motion alleged a substantial change in the circumstances of the parties as the basis for modification, rather than a substantial deviation from the child support guidelines. Neither party, however, argued to the trial court the issue of whether there had been a substantial change in the circumstances of a party. Instead, both parties argued about the manner in which the guidelines should be applied to the particular facts presented by this case. In the context of a trial court's consideration of a motion to modify, the guidelines become relevant only after a change in circumstances has been shown, if that is the ground urged in support of modification; Glinski v. Glinski, 26 Conn. App. 617, 625, 602 A.2d 1070 (1992); or in determining whether the existing child support order substantially deviates from the guidelines, if that is the ground urged in support of modification. In this case, the defendant made no procedural objection based on the enlargement of the basis for the motion for modification. Any lack of notice that the modification was sought based on a substantial deviation from the child support guidelines was, therefore, waived by the defendant. Turner v. Turner, supra, 219 Conn. at 705 n. 3, 595 A.2d 297; see also Tedesco v. Stamford, 215 Conn. 450, 462-63, 576 A.2d 1273 (1990). The issue of whether the existing child support order substantially deviates from the guidelines was squarely presented to the trial court. It was therefore incumbent on the trial court to decide the case on the ground presented.

General Statutes § 46b-86 provides the Superior Court with the authority, inter alia, to modify a child support award "upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a...." Public Acts 1991, No. 91-76, amended § 46b-86 to provide that "[t]here shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial." Here, the current support amount of $75 deviates more than fifteen percent from the child support guidelines amount of $117.

The trial court was, therefore, required to consider the guidelines in determining the defendant's child support obligation. "In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a,...