Fabiano v. Fabiano

523 A.2d 937, 10 Conn. App. 466, 1987 Conn. App. LEXIS 901
CourtConnecticut Appellate Court
DecidedApril 14, 1987
Docket5160
StatusPublished
Cited by10 cases

This text of 523 A.2d 937 (Fabiano v. Fabiano) 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
Fabiano v. Fabiano, 523 A.2d 937, 10 Conn. App. 466, 1987 Conn. App. LEXIS 901 (Colo. Ct. App. 1987).

Opinion

Borden, J.

The principal issue of this appeal is whether the trial court erred by declining to modify the defendant’s child support obligation to the plaintiff, where the defendant’s assets had increased substantially as a result of a personal injury award. The plaintiff appeals, claiming that the court abused its discretion by failing to find that the increase in the defendant’s assets constituted a substantial change in circumstances warranting a modification. We find error.

The marriage of the parties was dissolved in February, 1978. They have two children, now ages thirteen and eleven. At the time of the dissolution, the plaintiff, who was essentially unemployed, had net weekly income of approximately $15, expenses of approximately $160, assets of $100 and liabilities of approximately $1400. The defendant had net weekly income of $185, expenses of approximately $135, assets of $500, and liabilities of approximately $4900. The judgment of dissolution ordered no alimony to the plaintiff, who was expected to secure employment, and support of $40 per week for each child, for a total weekly child support obligation of the defendant of $80. In addition, the defendant was required to carry medical insurance for the children, and to pay for one half of their parochial school expenses.

In March, 1986, the plaintiff moved to modify the judgment on the basis of a claimed substantial change in the defendant’s financial circumstances. The parties’ financial affidavits and the testimony at the hearing disclosed the following facts. The plaintiff, who is now employed, has weekly net earnings of approximately [468]*468$189, exclusive of the child support of $80 which she receives from the defendant, and expenses of approximately $355. She has assets of approximately $2000, and liabilities of approximately $5000.

The defendant, who is a toolmaker, has a weekly net income of approximately $326/ and expenses of approximately $421. He had liabilities of approximately $4900. His assets had increased to $122,000. This amount constituted a personal injury award which he had received as a result of an automobile accident in 1980. He has a 30 percent disability of the back, had undergone surgery on his back twice, and expected to undergo a back fusion operation in the future.

Of the defendant’s $122,000 in assets, $114,000 is liquid.1 2 He has $74,000 in savings accounts. The defendant has committed $70,000 of that amount to the purchase of a home to be shared with his current wife. He also has $10,000 in securities in his name, and $30,000 in mutual funds in a trustee account for his children which he controls. There is no indication, however, that he has made an absolute gift of this fund to his children, and the indication is to the contrary, namely, that he continues to control the fund and could return it to his name if he so desired or the need arose. His affidavit does not disclose, however, any income yield from any of these liquid assets.

The trial court denied the plaintiff’s motion. With respect to the parties’ income and expenses, the court did not find any substantial change of circumstances which was not contemplated at the time of the dissolution. With respect to the defendant’s increased assets, [469]*469the court found no change of circumstances to warrant a modification because the assets were “not income that he has received” but “payment for damages to him, both to his earning ability and to physical injury to him.”3

The plaintiffs first claim is that the court erred by finding that the defendant’s substantially increased assets did not warrant modification. We agree.

We recognize that a party seeking modification of financial orders incident to a marital dissolution judgment must clearly and definitely establish an uncontemplated substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper. Wingerd v. Wingerd, 3 Conn. App. 261, 262, 487 A.2d 212 (1985). We also recognize the well-established standard of review in this court of the trial court’s actions in such matters. We do not substitute our judgment for that of the trial court. Vanderlip v. Vanderlip, 1 Conn. App. 158, 159, 468 A.2d 1253 (1984). Great weight is due the action of the trial court, which will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts. Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987); Wingerd v. Wingerd, supra, 263. In this case, we conclude that the plaintiff did clearly and definitely establish an uncontemplated change in the defendant’s circumstances, that continuation of the prior order would be unfair and improper, and that the trial court abused its discretion in denying the plaintiff’s motion.

It is clear from this record that the increase in the defendant’s assets from $519 in 1978 to $122,000 in [470]*4701986 was not contemplated by the parties at the time of the dissolution. It is also clear that such an increase can only be characterized as substantial for persons of modest means as indicated in this record.4 This showing of a substantial increase in the defendant’s assets, which was not contemplated by the parties, was “a significant betterment in the financial condition of one party, the supporting [parent]”; Howat v. Howat, 1 Conn. App. 400, 405, 472 A.2d 799 (1984); and demonstrated that “the defendant’s increased . . . assets were substantial and significant, and constituted an unforeseen change of circumstances justifying a reconsideration by the trial court of the prior . . . support orders.” Id., 406.

Moreover, the figures presented to the trial court certainly constitute a preliminary showing that continuation of the prior order of support would be unfair and improper. The plaintiff was subsisting on a total of approximately $269, including the $80 per week child support received from the defendant. Out of that she was providing food, shelter, clothing, unreimbursed medical expenses, and other incidental living expenses for the parties’ children. The defendant, after paying the child support of $80 per week, is left with approximately $240 per week. This is almost as much for his own needs as the plaintiff and the two children are living on. This does not take into account, moreover, any income from the defendant’s considerable liquid assets, which does not appear on his affidavit.

We are not persuaded, moreover, by the defendant’s reliance on Harlan v. Harlan, 5 Conn. App. 355, 498 A.2d 129 (1985). In that case, the change of circumstances, namely, the defendant’s increased earnings, [471]*471were found not to be outside the contemplation of the parties at the time of the dissolution. No such claim can be made in this case. Furthermore, to the extent that the change of circumstances in Harlan supports a reading of that case beyond the principle that the change must not have been contemplated, we are constrained to limit Harlan

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Bluebook (online)
523 A.2d 937, 10 Conn. App. 466, 1987 Conn. App. LEXIS 901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fabiano-v-fabiano-connappct-1987.