Evans v. Evans

644 A.2d 1317, 35 Conn. App. 246, 1994 Conn. App. LEXIS 281
CourtConnecticut Appellate Court
DecidedJuly 26, 1994
Docket11999
StatusPublished
Cited by8 cases

This text of 644 A.2d 1317 (Evans v. Evans) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. Evans, 644 A.2d 1317, 35 Conn. App. 246, 1994 Conn. App. LEXIS 281 (Colo. Ct. App. 1994).

Opinion

Lavery, J.

The plaintiff, Carter Evans, appeals from the judgment of the trial court granting the defendant’s motion to modify the plaintiff’s child support obli[247]*247gations and awarding the defendant attorney’s fees related to this motion. The plaintiff claims that the trial court (1) incorrectly applied New York law to the case and (2) abused its discretion by granting the motion for modification and attorney’s fees. We affirm the judgment of the trial court.

The parties married in 1974 and lived in New York until they divorced in 1987. Two boys were born to the parties during the marriage; they are both under the age of eighteen. The parties signed a separation agreement in New York that required the plaintiff to pay unallocated alimony and child support of $35,000 per year until the end of 1991. The agreement further provided that he would pay $5500 per year, per child, from 1992 until the children reached majority. The separation agreement explicitly stated that this support provision would be incorporated and merged into the court’s judgment of dissolution and would thereby be subject to the court’s on-going jurisdiction to modify the support provisions. The judgment of the New York Supreme Court dissolving the parties’ marriage, rendered June 23, 1987, specifically merged the support payment provision of the separation agreement into the judgment.

In 1992, after the New York judgment was made a judgment of Connecticut pursuant to General Statutes § 46b-71, the defendant moved to increase the plaintiff’s child support payments. The defendant asserted that the support payments were insufficient to support the children, that the payments were not in accord with the child support guidelines and that the plaintiff’s salary had increased substantially. The defendant subsequently amended her motion to include an assertion that there had been a substantial change in circumstances to warrant modification of the child support award.

[248]*248After extensive discovery, the defendant moved for attorney’s fees pursuant to General Statutes § 46b-62. At the hearing on the motions, evidence established that the plaintiff’s salary had increased from $115,419 to $320,000 since the divorce. On the basis of the parties’ testimony and financial affidavits, the trial court ordered the plaintiff to pay $900 per week in child support and awarded the defendant $10,000 in attorney’s fees. The plaintiff appealed.

The dissolution judgment modified in this appeal was made a judgment of this state pursuant to General Statutes § 46b-71. Foreign judgments that become judgments of this state “shall be enforced and otherwise treated in the same manner as a judgment of a court in this state provided ... in modifying . . . any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.” General Statutes § 46b-71 (b). Thus, the controlling substantive law in this case is the New York law of domestic relations.

The plaintiff’s first claim, although framed in several different ways, essentially asserts that the trial court improperly applied New York law. He claims that New York law required the defendant to show that the changes in circumstances giving rise to the motion for modification were both unanticipated and unreasonable at the time of dissolution. The plaintiff’s specific assertions flow from his reading of New York law, namely: (1) the motion for modification was not properly before the court because the defendant had not alleged that the changes in circumstances were unanticipated and unreasonable; (2) neither the increase in the plaintiff’s salary nor an increase in the needs of the children is sufficient change in circumstances to justify a modification of child support unless the increases were unanticipated and unreasonable; (3) there was no unanticipated change in circumstances. Because we conclude [249]*249that the plaintiff incorrectly interprets New York law, the plaintiffs assertions must fail.

Under New York law, a court may modify the child support provisions of a separation agreement only if the movant shows an unanticipated and unreasonable change in circumstances. Boden v. Boden, 42 N.Y.2d 210, 212-13, 366 N.E.2d 791, 397 N.Y.S.2d 701 (1977). Because the child support obligations result from contractual agreement of the parties, the court should not freely disregard the provision. Id.; Minarovich v. Sobala, 121 App. Div. 2d 701, 702, 504 N.Y.S.2d 143 (1986). Where, however, the child support provisions established by agreement are merged with the judgment, the agreement retains no contractual significance. Minarovich v. Sobala, supra, 702. Therefore, where child support provisions are merged with the judgment, the court retains jurisdiction to modify the child support obligations in light of changed circumstances. Id.; Wlodarek v. Wlodarek, 78 App. Div. 2d 981, 433 N.Y.S.2d 673 (1980). The movant is not required to comply with Boden and, thus, need not demonstrate unanticipated and unreasonable changes in circumstance. Minarovich v. Sobala, supra, 702; Wlodarek v. Wlodarek, supra, 981; Gotthainer v. Gotthainer, 107 Misc. 2d 221, 225, 435 N.Y.S.2d 444 (1980).

Thus, the defendant was not required to allege or prove that the changes in circumstance giving rise to her motion were unanticipated and unreasonable at the time of the dissolution. The defendant was required only to demonstrate changes in circumstance sufficient to warrant modification. Rogers v. Bittner, 181 App. Div. 2d 990, 991, 581 N.Y.S.2d 945 (1992); Minarovich v. Sobala, supra, 121 App. Div. 2d 702; Wlodarek v. Wlodarek, supra, 78 App. Div. 2d 981; Gotthainer v. Gotthainer, supra, 107 Misc. 2d 225.

[250]*250The trial court had before it financial affidavits and the testimony of both parties. On the basis of the totality of that evidence, the court found that the defendant had proven by a preponderance of the evidence that the plaintiffs salary had increased from $115,419 to $320,000 and that the financial needs of the children had also increased. The trial court also found that the best interests of the children were not being served by the present level of child support. Although the court noted that it was not bound by the New York child support guidelines, it did consider them in evaluating the needs of the children and the ability of the parties to provide financial support. The court also considered the criteria set forth in § 240 (f) of the New York Domestic Relations Law, specifically the admonition that the court consider “[t]he standard of living the child would have enjoyed had the marriage or household not been dissolved.” In short, the court concluded from the evidence that the defendant had proven changed circumstances warranting additional child support.

“Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts.” Michel v. Michel, 31 Conn. App. 338, 340, 624 A.2d 914 (1993); Siracusa v. Siracusa, 30 Conn. App. 560, 567,

Related

Wayne v. Wayne, No. Fa94-0549968 (Apr. 29, 2000)
2000 Conn. Super. Ct. 5085-id (Connecticut Superior Court, 2000)
Lennox v. Lennox, No. Fa98-0719171 (Nov. 23, 1999)
2000 Conn. Super. Ct. 3379 (Connecticut Superior Court, 2000)
Wayne v. Wayne, No. Fa94-0549968 (Feb. 17, 1999)
1999 Conn. Super. Ct. 2547 (Connecticut Superior Court, 1999)
Lowe v. Lowe, No. 31 99 86 (Mar. 10, 1998)
1998 Conn. Super. Ct. 2997 (Connecticut Superior Court, 1998)
Ingenito v. Ingenito, No. 31 76 16 (Aug. 7, 1997)
1997 Conn. Super. Ct. 8185 (Connecticut Superior Court, 1997)
Burgos v. Burgos, No. Fa 94 121157 (Jul. 11, 1997)
1997 Conn. Super. Ct. 12453 (Connecticut Superior Court, 1997)
Conte v. Conte
695 A.2d 32 (Connecticut Appellate Court, 1997)
Giles v. Giles, No. Fa94 0142628 S (Nov. 20, 1996)
1996 Conn. Super. Ct. 9689 (Connecticut Superior Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
644 A.2d 1317, 35 Conn. App. 246, 1994 Conn. App. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-evans-connappct-1994.