Lev v. Lev

524 A.2d 674, 10 Conn. App. 570, 1987 Conn. App. LEXIS 915
CourtConnecticut Appellate Court
DecidedApril 28, 1987
Docket4455
StatusPublished
Cited by17 cases

This text of 524 A.2d 674 (Lev v. Lev) 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
Lev v. Lev, 524 A.2d 674, 10 Conn. App. 570, 1987 Conn. App. LEXIS 915 (Colo. Ct. App. 1987).

Opinion

Spallone, J.

The plaintiff is appealing from the order of the trial court denying his motion for modifi[571]*571cation of alimony and child support and awarding the defendant $1500 to defend this appeal.

The marriage of the parties was dissolved on November 17, 1978. The original judgment incorporated an agreement between the parties which provided that the plaintiff would pay $107.50 per week to the defendant as child support for the parties’ only child. The plaintiff also agreed to pay alimony in the amount of $50 per week, plus an additional $10 per week for a period of eighteen months. In response to the defendant’s motion for contempt and the plaintiff’s motion to modify the alimony and support orders, the court, after a hearing on August 7, 1979, denied the plaintiff’s motion and found an arrearage of alimony and support. In December, 1979, the court again denied the plaintiff’s renewed motion for modification of alimony and support. In March, 1980, the court suspended the plaintiff’s obligation to pay alimony and support on the ground that the plaintiff was unemployed. In October, 1980, when the plaintiff gained employment, the court reinstated the obligation to pay alimony and support, but lowered the alimony payment to $17.50 per week.

On April 19,1985, the plaintiff filed another motion to modify alimony and support payments. On August 5, 1985, the court denied the motion, finding that there was no substantial change in the plaintiff’s circumstances to warrant a modification. From this order, the plaintiff has appealed and claims that the court erred (1) in erroneously determining the plaintiff’s income as of the relevant dates in October, 1980, and July, 1985, and (2) in failing to find that a 33 percent decrease in the plaintiff’s earnings constituted a substantial change in circumstances so as to entitle him to a modification of his support and alimony payments. After this appeal was filed, the trial court awarded the defendant $1500 as an allowance to defend the appeal. The [572]*572plaintiff has amended his appeal and asserts, as a third claim of error, that this award was erroneous.

The plaintiffs first claim, that the court erred in determining the plaintiffs income as of the relevant dates, is an attack on the factual findings of the trial court. Our review of a trial court’s factual findings is limited to a determination of whether these findings are clearly erroneous. Practice Book § 4061 (formerly § 3060D); Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986). The plaintiff claims that, in computing his income, the court ignored information from a 1980 financial affidavit, failed to take into account periods when the plaintiff was unemployed, and wrongfully computed the plaintiff’s 1985 income from his past, rather than his present, earnings. We find no merit to this claim. A review of the trial court’s memorandum of decision, filed in response to the plaintiff’s motion for articulation, reveals that the trial court properly considered the information that the plaintiff claims it ignored, i.e., the information from the 1980 financial affidavit and the fact that the plaintiff had been temporarily unemployed. Furthermore, the record reveals that the past earnings that the plaintiff claims the court wrongly considered in computing the plaintiff’s 1985 income were part-time earnings which the plaintiff had received during 1985 while working as a tax consultant. The court was fully justified in considering this source of income when computing the plaintiff’s 1985 income. In reviewing this claim under the clearly erroneous standard, our role is limited to a determination of whether the court’s finding is “ ‘unsupported by the record, incorrect, or otherwise mistaken.’ ” Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984), quoting Garrison v. Garrison, 190 Conn. 173, 176, 460 A.2d 945 (1983). The record does not support the claim that the trial court’s findings regarding the plaintiff’s income were clearly erroneous.

[573]*573The plaintiffs second claim, that the court erred in failing to find that a 33 percent decrease in earnings constituted a substantial change in circumstances so as to entitle him to a modification, is likewise without merit. In addition to the loss in the plaintiffs income, the court was authorized to consider a broad range of circumstances in deciding whether the decree should be modified. Benson v. Benson, 187 Conn. 380, 382, 446 A.2d 796 (1982). These include all of the numerous factors considered by the court when fixing the original orders. McMann v. McMann, 191 Conn. 447, 452, 464 A.2d 825 (1983); Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981). Here, the trial court highlighted a number of factors when denying the motion to modify. First, the trial court considered the plaintiffs earning capacity, rather than just his present earnings. Such a consideration is proper. Miller v. Miller, 181 Conn. 610, 611-12, 436 A.2d 279 (1980); Pascal v. Pascal, 2 Conn. App. 472, 482, 481 A.2d 68 (1984). Second, the court observed that the plaintiffs financial hardship resulted from, among other things, his remarriage and his voluntary commitment of a substantial portion of his net weekly income to pay the mortgage and taxes on a home owned solely by his second wife. Financial hardships that result from a remarriage are not alone sufficient to justify a modification of a support and alimony decree. Riccio v. Riccio, 153 Conn. 317, 320, 216 A.2d 431 (1966). In reviewing a trial court’s decision on a motion to modify, every reasonable presumption will be made in favor of the trial court’s exercise of discretion. Cummock v. Cummock, 188 Conn. 30, 35, 448 A.2d 204 (1982). Its decision will not be disturbed unless it acted illegally or unreasonably. Scott v. Scott, 190 Conn. 784, 789, 462 A.2d 1054 (1983). We cannot find that the trial court abused its discretion or acted unreasonably in denying the plaintiff’s motion to modify.

[574]*574In his third claim of error, the plaintiff challenges the trial court’s posttrial award of attorney’s fees to the defendant to defend this appeal. In making such an award, the court was obligated to consider the respective financial abilities of the parties. General Statutes §§ 46b-62 and 46b-82; Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983); Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980); Howat v. Howat, 1 Conn. App. 400, 408, 472 A.2d 799 (1984).

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Bluebook (online)
524 A.2d 674, 10 Conn. App. 570, 1987 Conn. App. LEXIS 915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lev-v-lev-connappct-1987.