Sardilli v. Sardilli

546 A.2d 926, 16 Conn. App. 114, 1988 Conn. App. LEXIS 358
CourtConnecticut Appellate Court
DecidedSeptember 6, 1988
Docket6075
StatusPublished
Cited by14 cases

This text of 546 A.2d 926 (Sardilli v. Sardilli) 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
Sardilli v. Sardilli, 546 A.2d 926, 16 Conn. App. 114, 1988 Conn. App. LEXIS 358 (Colo. Ct. App. 1988).

Opinion

O’Connell, J.

The defendant appeals from the trial court’s denial of his motions for modification of child support and for contempt, filed approximately one year after the dissolution of the parties’ marriage. The defendant claims that the trial court erred (1) in denying the motion for modification, as a material change of circumstances had arisen since the matter was previously considered, and (2) in denying the motion for contempt, as the plaintiff’s use of the property in question violated the use intended by the parties. We find error in part.

The following facts are relevant to the resolution of this appeal. The marriage of the parties was dissolved on April 18, 1986. The judgment rendered in that dissolution incorporated the parties’ separation agreement, which provided, inter alia, that the defendant [116]*116would purchase and maintain a condominium in Plain-ville for the plaintiffs use. The condominium facilitated the plaintiffs participation in the joint custody of the parties’ two minor children by providing her with a residence in proximity to the marital home.1 The down payment on the condominium was treated as part of the property settlement, and the monthly mortgage and associated payments were attributed to the defendant’s child support responsibilities. Pursuant to the dissolution judgment, the children’s primary residence was with the plaintiff.

On June 11, 1986, the trial court, Covello, J., granted the defendant’s motion to modify custody, which implemented a temporary custody and visitation schedule for the summer of 1986, ordered a child custody study, and awarded the defendant primary custody of the children. On August 19, 1986, the trial court, Barry, J., granted the defendant’s motion to modify child support, reordered the child custody study and temporarily suspended the $200 monthly payments made to the plaintiff for support of the minor children. The trial court also stated in that order that the plaintiff would maintain exclusive possession of the condominium. The defendant’s motions were reheard and granted on October 29, 1986, by the trial court, Kaplan, J.2

On March 23, 1987, the defendant filed the motions at issue in the present appeal requesting that the plaintiff pay the defendant child support and the condominium’s mortgage, taxes and fees. The defendant further requested that the court find the plaintiff in contempt and order her to vacate the condominium. The trial court denied both motions without an evidentiary hearing and the defendant appealed.

[117]*117The defendant first claims that the trial court erred in denying his motion for modification. General Statutes § 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of . . . [child] support . . . 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.”3 See Vonaa v. Vonaa, 15 Conn. App. 745, 747, 546 A.2d 923 (1988). The defendant claims that the trial court, Covello, J., erred in requiring that the defendant show a substantial change in the circumstances of either party arising since October 29, 1986, the date of the hearing on the last motion argued before the trial court. The defendant contends that because the issue of the condominium was purposefully withheld from consideration in that hearing, the period in which a change of circumstances could have arisen commenced on April 18, 1986, the date the dissolution decree was rendered. We agree.

A review of the trial court transcript indicates that, at the October 29, 1986 hearing, the parties expressly stated that only the $200 support payments were at issue.4 The transcript of that hearing indicates that the [118]*118trial court also expressly inquired as to the extent of the modification sought, and the defendant’s attorney stated that only the $200 child support payments, and not the condominium, were at issue.5

It is beyond dispute that “[t]he paramount role of a court when considering domestic relations cases is one of a ‘court of equity.’ ” LaBow v. LaBow, 13 Conn. [119]*119App. 330, 351, 537 A.2d 157 (1988); Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975). Because the transcript indicates that the parties did not intend to address all aspects of child support at the October 29, 1986 hearing, it would be inequitable to now provide that issues excluded at that time are precluded from further consideration. This is in essence what resulted in the trial court’s determination that the issues relating to the condominium were addressed on October 29, 1986. We recognize that the body of law which provides that when a motion for modification has been granted, any subsequent modification can be based only upon a change in circumstances arising from the date of the earlier modification. See, e.g., Benson v. Benson, 187 Conn. 380, 383 n.3, 446 A.2d 796 (1982); Theonnes v. Theonnes, 181 Conn. 111, 114, 434 A.2d 343 (1980). As this aspect of the child support was not previously addressed by the trial court, however, this principle does not apply in the present case. The trial court was faced, in essence, with a bifurcated request for modification, in which only one of two issues raised by the request, the matter of support payments, was previously addressed. In this scenario, it is of no consequence that the trial court may have addressed the issue of support payments on October 29, 1986, because the matter of the condominium had not been addressed since the judgment was rendered.6 As a result, the trial court improperly limited the date from which the defendant could demonstrate a substantial change in circumstances which warranted the modification. We [120]*120therefore conclude that the trial court erred and the case must be remanded for further proceedings to allow the defendant to present evidence of a substantial change of circumstances, if any, arising prior to October 29, 1986, but subsequent to the entry of the original dissolution judgment.

The defendant next claims that the trial court erred in failing to find the plaintiff in contempt of court for continuing to reside in the condominium after the defendant obtained primary custody of the parties’ minor children. We disagree.

The dissolution agreement signed by the parties provided that the plaintiff would enjoy exclusive possession of the condominium until any of four contingencies arose: (1) remarriage, (2) cohabitation with an unrelated male, (3) emancipation or the eighteenth birthday of the youngest residing child not attending high school full time, or (4) July 1, 1994, whichever occurred first. The trial court, Covello, J., denied the motion, concluding that none of the four contingencies had occurred.

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Bluebook (online)
546 A.2d 926, 16 Conn. App. 114, 1988 Conn. App. LEXIS 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sardilli-v-sardilli-connappct-1988.