Vickery v. Vickery

595 A.2d 905, 25 Conn. App. 555, 1991 Conn. App. LEXIS 298
CourtConnecticut Appellate Court
DecidedAugust 27, 1991
Docket9538
StatusPublished
Cited by4 cases

This text of 595 A.2d 905 (Vickery v. Vickery) 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
Vickery v. Vickery, 595 A.2d 905, 25 Conn. App. 555, 1991 Conn. App. LEXIS 298 (Colo. Ct. App. 1991).

Opinion

Lavery, J.

The defendant appeals from the order of the trial court modifying the amount of child support awarded to the plaintiff.1 The defendant claims that the trial court was incorrect (1) in not making the modification order retroactive to the date the motion for modification was filed or, in the alternative, to the date the modification motion first appeared on the court calendar, (2) in not finding that the child support guidelines are void because they were not properly promulgated under the Uniform Administrative Procedure Act (UAPA),2 (3) in applying the child support guidelines strictly without applying the criteria of General Statutes §§ 46b-82, 46b-84 and 46b-863 by giving consider[557]*557ation only to the needs of the plaintiff, (4) in abusing its discretion by ordering the defendant to pay $102 a week in accordance with the child support guidelines, despite the financial affidavits submitted by the parties and the court’s factual findings to the contrary.

The undisputed facts pertinent to the resolution of this case are as follows. In July, 1985, a judgment of dissolution of marriage was granted to the plaintiff. The defendant did not appear at the dissolution hear[558]*558ing, was not represented by counsel and failed to file a financial affidavit. During the hearing, the plaintiff represented to the court that she had no income and that the defendant earned between $630 and $720 per week. As part of the dissolution orders, the court required that the defendant pay to the plaintiff $400 per week, $200 in alimony and $100 in child support for each of the two minor children. The defendant was served with notice of the judgment and a return of service of that notice was made. Although the defendant made substantial payments to the plaintiff over the next three years, the sum of the payments did not represent full payment of the amounts ordered by the court.

In November, 1988, the defendant filed a motion to modify alimony and support that was denied by the family court magistrate. The orders of the magistrate are on appeal in the Superior Court and are not the subject of this appeal. The defendant brought a second motion to modify on January 22,1990. This motion was first placed on the court calendar for a hearing on February 20, 1990. The motion was ultimately heard over a period of three days in August, 1990, and a decision was rendered on August 30,1990. The court found that there had been a material change of circumstances since the date of dissolution, that at the time of the dissolution the defendant’s earnings were between $630 and $720 per week, and that the plaintiff had no earnings. The court determined that at the time of the 1990 hearing on modification, the plaintiff was earning $450 per week and the defendant earned $290 per week. The court also found that the defendant did not voluntarily deplete his earnings nor did he quit his employment and that the reduction of his income was not intentional. In its decision, the court specifically stated that it had considered the relevant statutory criteria, namely §§ 46b-84 and 46b-86, and that applying the facts of [559]*559the case to those criteria it could not find that the application of the child support guidelines would be inequitable or inappropriate. Accordingly, the trial court reduced the alimony to $1 per year and reduced the child support payments to a total of $102 per week for the two children. In addition, the court ordered that the defendant pay $20 a week on the arrearage. The trial court refused to make a retroactive modification of the alimony and support either to the date of the filing of the motion or to the date that motion was first set down on the court calendar for a hearing.

I

As of August 30,1990, the long-standing rule of law in effect was that a court’s order modifying alimony and child support may not be retroactive. Sanchione v. Sanchione, 173 Conn. 397, 406, 378 A.2d 522 (1977); Darak v. Darak, 210 Conn. 462, 479, 556 A.2d 145 (1989); Paddock v. Paddock, 22 Conn. App. 367, 373, 577 A.2d 1087 (1990). These cases hold that modification must be prospective in nature and can be effective only from the date of the hearing on the motion.

In 1990, however, the Connecticut legislature passed an amendment to § 46b-86 (a) that provides, inter alia, “[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” This amendment became effective on October 1,1990. Because this amendment was not in effect at the time of the trial court’s ruling, the court could not exercise any discretion to modify child support retroactively. Its decision, therefore, was correct.

[560]*560II

The defendant next claims that the trial court was incorrect in its application of the child support guidelines. He argues that the guidelines are not contained in any statutory act or rule of the Superior Court and have not been published in the Connecticut Law Journal as an administrative regulation pursuant to General Statutes § 4-173 and are, therefore, void.

We disagree and conclude that the guidelines are valid because No. 89-203 of the 1989 Public Acts (P. A. 89-203) adopted and then incorporated the guidelines by reference into statutory law.

In 1984, the United States Congress passed the Child Support Enforcement Amendments; Pub. L. 98-378; which required, among other things, that the states establish child support guidelines by law or by judicial or administrative action. Under that legislation, the states were given the mandate of making the guidelines available to “all judges and other officials who have the power to determine child support awards within the states.” In response to the federal act, our legislature enacted No. 85-548 of the 1985 Public Acts, which established a commission to develop the child support guidelines and which provided that the guidelines be made available to the judges but not be binding on them. The commission created guidelines that were not promulgated in accord with the UAPA but were put into effect by the commission on January 1, 1987.

In 1988, Congress revised the Child Support Enforcement Amendments by mandating that the guidelines serve as a “rebuttable presumption” of the correct amount of support to be awarded unless the decision maker makes a specific finding that the application of the guidelines would be unjust. 42 U.S.C. § 667 (b) (2). [561]*561Congress also required that the guidelines be reviewed every four years to ensure the appropriateness of their continued application. 42 U.S.C. § 667 (a). In 1989, Connecticut passed P.A.

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Bluebook (online)
595 A.2d 905, 25 Conn. App. 555, 1991 Conn. App. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vickery-v-vickery-connappct-1991.