Rempt v. Rempt
| Decision Date | 27 August 1985 |
| Docket Number | No. 3140,3140 |
| Court | Connecticut Court of Appeals |
| Parties | Barbara Nan REMPT v. Henry F. REMPT. |
Eugene C. Cushman, New London, for appellant (plaintiff).
Russell E. Vile, Groton, for appellee (defendant).
Before BORDEN, SPALLONE and DALY, JJ.
This is an appeal by the plaintiff from a postjudgment order modifying an award of unallocated alimony and child support. The parties were divorced in July, 1983. Pursuant to the dissolution decree, which incorporated a written separation agreement, custody of the parties' two minor daughters, born on November 17, 1967, and February 1, 1969, was awarded to the plaintiff. The defendant was ordered to pay the plaintiff $400 per week in unallocated child support and alimony. That amount was to be paid for a period of eleven years, provided that upon the eighteenth birthday of each child, the amount would be reduced by $75 per week. The decree also provided, in accordance with the separation agreement, that neither the term nor the amount of unallocated alimony and child support was subject to modification.
Following the dissolution, the plaintiff lived with the two children in the marital residence which, incident to the decree, had been placed in her name. In November, 1983, the older of the daughters moved out of the family home and moved in with neighbors. Upon learning of this, the defendant reduced his weekly payments to the plaintiff to $350 per week.
The defendant moved to modify the judgment by reducing the amount of child support which he was obligated to pay the plaintiff. On the basis of the wording of the original decree, which provided that the unallocated payments would be reduced by $75 per week when each child reached eighteen, he maintained that $75 of the unallocated award of $400 per week was intended as support for each child. Because one child no longer lived with the plaintiff, he argued that the award should be reduced by $75. The trial court granted the motion to modify and ordered that the award be reduced to $325 per week, retroactive to January 16, 1984. No evidence as to the child's needs was offered.
The issues raised in this appeal are, first, whether the trial court was precluded by the language of the decree from modifying the award of child support and, second, whether the court erred in reducing that award solely because one of the minor children moved out of the custodial parent's home. We find error.
The first issue raised by the plaintiff was dispositively addressed in Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985). In Guille, the Supreme Court stated that a minor child's right to parental support "has an independent character, separate and apart from the terms of the support obligations as set out in the judgment of dissolution." Id., at 263, 492 A.2d 175. It held that neither the language of General Statutes § 46b-86(a) 1 nor the provision in a decree purporting to preclude modification was effective, in that case, to restrict permanently a later court's power to modify the terms of child support. Id., at 265, 492 A.2d 175. The trial court in this case was not precluded by the language of the decree from modifying the award of child support. 2
It is clear that an order for support of children may not be modified unless there has been a "substantial change of circumstances" after the issuance of the original order. General Statutes § 46b-86(a); Bozzi v. Bozzi, 177 Conn. 232, 237, 413 A.2d 834 (1979). The party seeking modification must "clearly and definitely" demonstrate a substantial change in circumstances which was uncontemplated at the time the order was entered. Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982). In modifying child support orders, the court may consider all of the criteria enumerated in General Statutes § 46b-84; Howat v. Howat, 1 Conn.App. 400, 403-404, 472 A.2d 799 (1984); one of the most important of which is the needs of the child. Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983).
In this case, the original order was for unallocated alimony and support. Part of the order, presumptively $75 per week per child, was for support and was consequently modifiable. Since the financial ability of the defendant to continue providing support in that amount was never in dispute, the court was required to consider only the child's needs. See General Statutes § 46b-84(b); Raymond v. Raymond, 165 Conn. 735, 739, 345 A.2d 48 (1974). As we have noted, no evidence was presented to the court as to those needs. In the absence of such evidence, there could be no showing of a "substantial change of circumstances" to support the reduction of child support...
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