Darak v. Darak

556 A.2d 145, 210 Conn. 462, 1989 Conn. LEXIS 75
Supreme Court of Connecticut·Decided March 21, 1989·No. 13530·Published·Cited by 112 cases

Opinion

Peters, C. J.

The principal issue in this appeal is whether a statutory change in the principles governing modification of matrimonial financial orders applies immediately to any motion for modification filed after the effective date of the act or applies only prospectively to dissolution decrees entered after its effective date. Subsequent to the effective date of Public Acts 1987, No. 87-1041 (the act), the defendant, Robyn Gale Darak, moved the trial court to modify her award of alimony and child support in light of the changed financial circumstances of the plaintiff, Harold J. Darak. This motion was initially granted, but ultimately denied, on the trial court’s ruling that the parties had contem[464] plated the changed circumstances and that the new act, which eliminated this consideration, applied prospectively only. The defendant appealed to the Appellate Court and we transferred the appeal here pursuant to Practice Book § 4023. We find error in part of the trial court’s judgment.

The underlying facts' are undisputed. The trial court, Nash, J., dissolved the three and one-half year marriage between the plaintiff and the defendant on December 3,1986. Pursuant to the parties’ dissolution agreement, the trial court granted custody of the couple’s minor child to the defendant and directed the plaintiff to pay the defendant $125 per week in unallocated alimony and child support. At the time of the dissolution, the plaintiff earned $798.08 weekly ($549.14 net) and the defendant earned $125 weekly ($122.18 net).

On October 23,1987, the defendant moved the trial court to modify its alimony and child support order because of a substantial improvement in the plaintiff’s financial situation. After a hearing at which the parties submitted financial affidavits, the trial court, Damiani, J., found that a substantial change in financial circumstances had indeed occurred, the plaintiff’s earnings having significantly risen, while those of the defendant had diminished.2 The court also found, however, that the parties had contemplated the income increase at the time of the dissolution.

[465] The trial court initially ruled that, by virtue of the enactment of Public Acts 1987, No. 87-104, the defendant was entitled to a modification, despite the fact that the change in financial circumstances had been contemplated at the time of the dissolution. The court acknowledged that, under this court’s interpretation of General Statutes § 46b-86 (a), prior to its 1987 amendment,3 no such modification would have been allowable. Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976). As amended by the new act, however, § 46b-86 (a) now permits a modification without regard to prior contemplation of financial changes. The court held the new act to be procedural and remedial and hence applicable to the defendant’s motion for modification because her motion had been filed after the effective date of the new act. The court rejected the plaintiff’s argument that the act should only apply to dissolution decrees entered after its effective date. In accordance with its ruling granting the motion for modification, the court, on December 18, 1987, entered new monetary orders for child support of $150 per week and alimony of $100 per week. Thereafter, the court awarded the defendant an allowance of $2000 in attorney’s fees to defend against an appeal taken by the plaintiff from the trial court’s ruling.4

[466] During the pendency of the plaintiffs appeal, he moved the trial court to reconsider its ruling that the act applies retrospectively.5 In response, the defendant moved for reconsideration of the finding that the parties had contemplated the change in financial circumstances.

On March 31,1988, the trial court granted the plaintiff’s motion for reconsideration and, upon reconsideration, reversed its previous decision and denied the defendant’s motion for modification. Relying on the Appellate Court’s intervening decision in LaBow v. LaBow, 13 Conn. App. 330, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), the trial court concluded that the act should apply only prospectively.6 The trial court denied the defendant’s motion to reconsider its finding of contemplation. The court further ordered that the plaintiff was entitled to a credit of $5 per week to make up for the amounts he had paid to the defendant pursuant to the previous court order.

This case is now before us on appeal by the defendant.7 She claims that the trial court erred in: (1) ruling that the act applies prospectively only to dissolution judgments entered after the act’s effective date; (2) concluding that the parties had contemplated the substantial change in financial circumstances; and (3) making financial awards that retroactively denied the defend[467] ant attorney’s fees during the pendency of the plaintiff’s motion for reconsideration, and prospectively diminished the defendant’s financial support by the increased amount of alimony and child support awarded to the defendant by its December 18, 1987 decision.

I

The defendant’s argument about the applicability of the amended § 46b-86 (a) encompasses three claims. She maintains that the new act should apply to all motions for modification filed after its effective date because: (1) even applied prospectively, the act encompasses her motion; (2) the act represents a clarification of the legislature’s original intent rather than a substantive change in § 46b-86 (a); and (3) any contrary construction would impair her constitutional rights to equal protection of the laws. We are unpersuaded by any of these claims.

A

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