Righi v. Righi

• Decision Date: 25 April 2017
• Docket Number: AC 38492
• Citation: 172 Conn.App. 427,160 A.3d 1094
• Parties: John RIGHI v. Allison RIGHI
• Court: Connecticut Court of Appeals

172 Conn.App. 427

160 A.3d 1094

John RIGHI

v.Allison RIGHI

AC 38492

Appellate Court of Connecticut.

Argued January 12, 2017

Officially released April 25, 2017

Joseph E. Prokop, for the appellant (plaintiff).

Susan T. Pearlman, for the appellee (defendant).

DiPentima, C. J., and Mullins and Bishop, Js.

BISHOP, J.

This family law appeal requires us to analyze the statutory requirements necessary for a party to succeed on a postjudgment motion to modify, pursuant to General Statutes § 46b–86(a). The plaintiff, John Righi, appeals from the judgment of the trial court granting the postjudgment motion of the defendant, Allison Righi, to modify a marital dissolution judgment child support order. On appeal, the plaintiff claims that the court (1) improperly granted the motion to modify after determining there had not been a substantial change in circumstances; and (2) erred by finding that the dissolution court, in creating the original child support order, failed to make a finding that applying the child support guidelines would be inequitable or inappropriate, pursuant to General Statutes §§ 46b–215b(a) and 46b–86(a). We affirm the judgment of the trial court.

The following factual and procedural background is relevant to our consideration of the plaintiff's appeal. The plaintiff and the defendant were married on May 28, 2004, and had two children, one born in December, 2003, and one born in March, 2005. After an uncontested hearing, the marriage of the parties was dissolved on December 8, 2014. The court, Johnson, J. , incorporated the parties' separation agreement into the judgment of dissolution, which provided, inter alia, that the parties would share joint legal custody of the two minor children. Pursuant to the parties' agreement, the court ordered that the plaintiff's house would be the children's principal place of residence, though "the parties shall equally share parenting time ...." The agreement and order also provided that "[n]either party shall pay child support to the other party" and that "[t]his is a deviation from the child support guidelines based on the parties' shared parenting arrangement of shared physical custody and the best interests of the children."

At the dissolution hearing, both the plaintiff and the defendant testified that they believed this was a fair and equitable agreement and that it was in the best interests of their children. As for the presumptive child support amount pursuant to the child support guidelines, the court found that the defendant would have had to pay $111 per week to the plaintiff if the children primarily lived with the plaintiff, and the plaintiff would have had to pay $256 per week to the defendant if the children primarily lived with the defendant. When asked by the court why she was asking the court to deviate from the child support guidelines, the defendant testified that the defendant and the plaintiff "just decided fifty/fifty. ... I'll take the costs [of the children] when they're with me, and [the plaintiff will] take the costs when they're with him." She also testified that each parent, while the children were in his or her custody, would be "responsible for the costs of feeding, educating, and entertaining the children." The court accepted the parties' agreement and stated: "In review of the agreement and the child support guidelines, the court feels the agreement is fair and equitable under all of the circumstances and in the best interests of the two minor children and will adopt the agreement as a final order of the court."

On August 7, 2015, the defendant filed a postjudgment motion to modify the child support order, claiming that since the dissolution judgment, there had been a substantial change in circumstances, and that she was "in need of financial help" and was no longer able to pay for one half of the children's expenses in addition to her bills. The court, Albis, J. , heard argument on this motion on September 1, 2015, during which the defendant testified that her circumstances had changed because she was anticipating that her rent would increase the following month; her hours at work did not increase, as she had anticipated they would; and the children's expenses had increased. The plaintiff opposed the defendant's motion to modify and testified that "nothing has really changed. ... [The defendant is] just not managing her money very wisely."

The court issued a memorandum of decision on September 3, 2015, granting the defendant's motion. In its written decision the court stated: "The court finds that there has been no substantial change in circumstances since the entry of judgment on December 8, 2014.... However, the terms of the judgment providing for no child support payments to either party represent a substantial deviation from the child support guidelines. A review of the record of the proceedings on December 8, 2014, reveals no specific findings of the court that would preclude consideration of the defendant's request for modification of child support pursuant to § 46b–86(a)...." The court continued: "The presumptive weekly child support obligation of the plaintiff ... as the parent with the higher net weekly income, is found to be $266 pursuant to the child support guidelines. ... But the court finds that it would be inequitable or inappropriate to apply the presumptive guideline support amount in view of the parties' shared physical custody arrangement ...." The court ordered the plaintiff to pay weekly child support in the amount of $100 to the defendant.

Thereafter, the plaintiff filed a motion to reargue, claiming that the court should not have granted the defendant's motion to modify the child support order because it found there had not been a substantial change in circumstances. In denying the plaintiff's motion, the court stated: "[E]ven absent a substantial change in circumstances, § 46b–86(a)... provides a second basis for modifying child support: that the prior order substantially deviated from the child support guidelines without a ‘specific finding on the record that the application of the guidelines would be inequitable or inappropriate.’ In the present case, the court found that the prior order substantially deviated from the child support guidelines and that no such specific finding was made on the record. Therefore, the modification of the child support order was permitted by § 46b–86(a) notwithstanding the prior agreement of the parties and the absence of a substantial change in circumstances." This appeal followed.

We begin by setting forth the relevant standard of review and legal principles. The plaintiff's claims, that the court did not have the authority to modify the child support order, require us to analyze the court's interpretation and application of § 46b–86(a) to the facts of the case, and to determine whether the court acted in accordance with its authority. Accordingly, because our review requires an analysis of a legislative provision, and contrary to the plaintiff's assertions,¹ we employ a plenary standard of review. Coury v. Coury , 161 Conn.App. 271, 293, 128 A.3d 517 (2015) ("[O]ur deferential standard of review [in domestic relations cases] ... does not extend to the court's interpretation of and application of the law to the facts. It is axiomatic that a matter of law is entitled to plenary review on appeal." [Internal quotation marks omitted.] ).

Section 46b–86(a) provides in relevant part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent ... support ... may, at any time thereafter, be ... modified by the court upon a showing of a substantial change in circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to [General Statutes §] 46b–215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. ..."² We turn now to the plaintiff's claims.

I

The plaintiff argues first that the court should have denied the defendant's motion to modify because the defendant did not meet the statutory requirements for postjudgment modification pursuant to § 46b–86(a). Specifically, the plaintiff argues that the court was required to find that there had been a substantial change in circumstances before it could modify the child support order, and, because it specifically found that there had not been a substantial change in circumstances, it improperly granted the defendant's motion to modify. This claim is wide of the mark.

Our case law is clear that § 46b–86(a) creates two alternative circumstances in which a court can modify a child support order. "[Section] 46b–86 governs the modification of a child support order after the date of a dissolution judgment ... [and] permits the court to modify child support orders in two alternative circumstances ." (Citation omitted; emphasis added; internal quotation marks omitted.) Weinstein v. Weinstein , 104 Conn.App. 482, 491, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). Those circumstances are when there is "(1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines absent the requisite findings." Santoro v. Santoro , 70 Conn.App. 212, 218, 797 A.2d 592 (2002).

Accordingly, this court specifically has held that "[a] 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 the party." (Internal quotation marks omitted.) Weinstein v. Weinstein , supra, 104 Conn.App. at 495, 934 A.2d 306 ; see also McHugh v. McHugh , 27 Conn.App. 724, 728–29, 609 A.2d 250 (1992) ( "[O]nce the court enters an order of child support that substantially deviates from the...