Sanchione v. Sanchione

• Decision Date: 16 August 1977
• Citation: 173 Conn. 397,378 A.2d 522
• Court: Connecticut Supreme Court
• Parties: Maureen Duffy SANCHIONE v. Frank August SANCHIONE.

Page 522

378 A.2d 522

173 Conn. 397

Maureen Duffy SANCHIONE v. Frank August SANCHIONE.

Supreme Court of Connecticut.

Argued April 6, 1977.

Decided Aug. 16, 1977.

Andrew Chulick, Bridgeport, for appellant (plaintiff).

Richard T. Meehan, Jr., Bridgeport, with whom, on the brief, was A. Reynolds Gordon, Bridgeport, for appellee (defendant).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

SPEZIALE, Associate Justice.

The plaintiff, Maureen Duffy Sanchione, is appealing a decision which modified an award for weekly alimony and made the reduction retroactive to the date of the original order.

The marriage of the parties was dissolved on April 4, 1974. The court (Levine, I., J.) ordered the defendant, Frank August Sanchione to convey title of the family home to the plaintiff and to pay child support for the couple's two daughters. In addition, he was ordered to pay the plaintiff nominal alimony of $1 a year. On December 11, 1974, the plaintiff sought to open and modify this judgment, ¹ claiming significant omissions and misrepresentations by the defendant as to his financial circumstances on the date of the decree. On December 19, 1974, the court (Mulvey, J.) found that there had been incomplete disclosure of the defendant's financial status, ordered the defendant to pay $2500 by noontime December 26, 1974, and modified the alimony award by increasing it from $1 a year to $75 a week. This judgment was never appealed by either party. Approximately six months later, on June 30, 1975, the plaintiff sought a contempt order and wage execution claiming that the defendant was in default of the court's order of December 19, 1974, except for having paid $500 of the $2500. The defendant admitted that only $500 of the $2500 had been paid. At the same time, however, he requested a retroactive modification of the alimony order for $75 weekly, claiming that his circumstances had changed since the order, that the amount was too high and "overburdensome," and that he was unable to make the payments. After a hearing, the court (Testo, J.) found the defendant in contempt and ordered him to comply with the prior court order of December 19, 1974, for payment of the full $2500 as ordered by the court (Mulvey, J.). On the same day, the court heard the defendant's motion for modification of the weekly alimony and granted it by reducing the payments from $75 weekly to $35 weekly retroactively to the date of the original weekly order, with the arrearage reduced accordingly.

On appeal, the plaintiff claims that the court erred (1) in refusing to correct its finding; (2) in granting the defendant's request for modification while the defendant was still in contempt of court; (3) in modifying the alimony award when the requisite showing of a substantial change in the circumstances of either party was lacking; and (4) in reducing the alimony award and making the reduction retroactive to the date of the original weekly order.

The plaintiff assigned numerous errors relating to the court's refusal to correct its finding in accordance with the plaintiff's motion to correct. Those which have not been briefed are deemed abandoned. Shea v. State Employees' Retirement Commission, 170 Conn. 610, 613, 368 A.2d 159; State v. Bowen, 167 Conn. 526, 533, 356 A.2d 162. The plaintiff claims that the court erred in refusing to find certain facts set forth in her draft finding which she argues were material and admitted or undisputed. Many of these facts are taken from the parties' financial affidavits. The court specifically found the affidavits to be true, and also made all exhibits part of the finding. The defendant does not dispute the accuracy of the facts set forth, but merely argues that they are already encompassed by the court's finding. Immaterial corrections will not be made, nor will facts be added which are implicit in the finding as made. See Dick v. Dick, 167 Conn. 210, 213n., 355 A.2d 110. We, however, include in the finding those facts which are supported by the financial affidavits and serve to elaborate on their somewhat complicated arithmetic. The finding is also corrected to add the fact that as of July 23, 1975, the date of the hearing on the plaintiff's motion for contempt and the defendant's motion for modification of alimony, foreclosure proceedings were about to be instituted against the plaintiff by the bank. Evidence in the plaintiff's appendix shows that this fact was admitted by the defendant at the contempt hearing. It is material and relevant to establishing the plaintiff's continued need for the alimony payments, and the plaintiff was entitled to have the court include this in its finding regarding the defendant's contempt and his request for modification because of an alleged change in circumstances. See General Statutes §§ 46-52, 46-54. "In general the same sorts of circumstances are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. These have chiefly to do with the needs and financial resources of the parties." Clark, Law of Domestic Relations, § 14.9, pp. 456-57. For the same reasons, the finding is corrected to reflect the fact that the defendant had purchased his Trumbull home (not the family home) in October, 1973, for $51,500 and that he lived in this furnished home alone.

The plaintiff is also correct in her contention that the court was actually reaching a conclusion when it purportedly found as a fact that "from the information disclosed on the defendant's financial affidavit, this court was of the opinion that the prior order of alimony was excessive." A " conclusion" means a finding of fact by deduction from other facts found. Maltbie, Conn.App.Proc. § 139. " 'A deduction from other facts found, whether or not it is called a conclusion, and in whatever part of the finding it is placed, is a conclusion.' Wambeck v. Lovetri, 141 Conn. 558, 561, 107 A.2d 395." Buckley v. Webb, 143 Conn. 309, 315, 122 A.2d 220. Accordingly, for this conclusion to stand it must meet the same test as the court's other conclusions attacked by the plaintiff: It must be reasonably supported by the relevant subordinate facts found and must not violate law, logic or reason. See Spicer v. Spicer, 173 Conn. 161, 163, 377 A.2d 259; Manchester State Bank v. Reale, 172 Conn. 520, 523, 375 A.2d 1009. In view of our holding in this case, this conclusion cannot stand.

On July 23, 1975, the court (Testo, J.) found the defendant in contempt for nonpayment of the full $2500 lump sum alimony previously ordered by the court (Mulvey, J.). It then overruled the plaintiff's objection to its ruling that it was going to hear the defendant's motion for modification of alimony even though the defendant was in contempt of court. The court proceeded to hear the request for modification, and then granted the defendant substantial relief. On appeal, the plaintiff pursues her claim that the court erred in simultaneously entertaining the plaintiff's contempt petition and the defendant's motion for modification. Practice Book § 381(a) states in pertinent part that "(u)pon an application for a modification of an award of alimony . . . filed by a person who is then in arrears under the terms of such award, the court shall, upon hearing, ascertain whether such arrearage has accrued without sufficient excuse so as to constitute a contempt of court, and, in its discretion, may determine whether any modification shall be ordered prior to the payment, in whole or in part as the court may order, of any arrearage found to exist." See also General Statutes § 51-182p. Obviously, therefore, the intended procedure is that both motions be heard concurrently, which was done in the present case. The section nowhere prohibits such modification after a finding of contempt. This accords, for example, with the fact that "(f)or the most part the contempt defense (of inability to pay) requires a proof of greater financial hardship than does a motion to modify alimony." Clark, Law of Domestic Relations, § 14.10, p. 469. Thus, a defendant might be in contempt on arrearages, yet his or her financial distress, while not sufficing to excuse the delinquency in payments, might be enough to warrant some modification.

The plaintiff's remaining claims can be summarized by two questions: In this instance, did the court have authority to order modification of the prior alimony award, and was the retroactive reduction in alimony an abuse of the court's discretion? General Statutes § 46-54 reads, in part, that "(u)nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . or alimony . . . pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. . . ." It is undisputed that this statute authorizes a court to modify periodic alimony for the future. ² See, e. g., Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172; Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202. The question remains, however, whether accrued, unpaid installments may be modified retroactively. Several states have statutes that either expressly limit modification to future installments or expressly authorize retroactive modification. Compare Code of Virginia 1950 (1975 Replacement Volume) § 20-109 (court may modify "any support and maintenance for the spouse that may thereafter accrue . . . .") with McKinney's Domestic Relations Law, 1976 Supp. (N.Y.) § 236 ("the authority . . . (for modification) shall extend to unpaid sums or installments accrued prior to the application as well as to sums or installments to become due thereafter"). It has been stated that "(a) majority of jurisdictions, where the statute does not contain express provisions, refuse to allow modification of accrued installments." Clark, Law of Domestic Relations, §...