Opinion
No. FA00-0158469S
July 3, 2003
MEMORANDUM OF DECISION
ISSUE
The issue in this case is whether modification of child support awarded at the time of a judgment of dissolution of marriage in accordance with an incorporated written agreement of the parties that precluded modification is allowed? Pursuant to General Statutes § 46b-S6 and the appellate court's decision in Amodio v. Amodio, 56 Conn. App. 459, 743 A.2d 1135 (2000), the child support awarded is not modifiable since the judgment and the parties' separation agreement was fair and reasonable and clearly and unambiguously foreclosed modification under the circumstances.
FACTS
The plaintiff, Patricia Toupin, and the defendant, Fred Toupin, Jr., married on February 26, 1992 in Santa Belle Island, Florida. They have three minor children issue of their marriage: Dylan, born October 3, 1992; Alyssa, born June 4, 1994; and Megan, born June 4, 1994. The marriage of the parties had broken down irretrievably, resulting in a divorce. A judgment dissolving the marriage of the parties was entered on April 6, 2001, and incorporated by reference a separation agreement executed by and between the parties on the same date. Pursuant to the separation agreement, the plaintiff was given sole legal and physical custody of the minor children and the defendant was given visitation every other weekend from Saturday at 2:00 p.m. until Sunday at 6:00 p.m. and at such other times during the week as agreed to by the parties. Among other things, the separation agreement also provided that "[t]he husband shall pay child support in the amount of Four Hundred ($400.00) per week . . . The amount shall be nonmodifiable unless Wife earns more than $330.00 net per week or Husband increases his net weekly pay by $150.00 per week . . . The parties recognize that the child support is a deviation from the child support guidelines but given that two of the minor children are disabled, Father agrees to pay the amount set forth above." (Separation Agreement, ¶ 18).
On February 4, 2002, in response to several motions filed by the plaintiff, the parties entered into a stipulated agreement. The agreement provided that the defendant shall be present during all visitations, and the plaintiff shall call the defendant at 1:30 p.m. before dropping the children off to him for visitation. The agreement also provided that the defendant notify the plaintiff by 11:00 a.m. if the time of visitation needs to be changed, and that during visitation, the defendant shall provide the special care required by the special needs children.
On May 28, 2002, the plaintiff filed a postjudgment modification of visitation and citation claiming that since the defendant's health has deteriorated to a point where he is unable to stay awake or to physically handle visitation with the minor children, visitation places the children in danger and does not serve their best interests. On January 8, 2003, the plaintiff filed a postjudgment motion for contempt claiming that the defendant has failed to pay child support in accordance with the orders entered by the court, resulting in an arrearage of $5,400. On February 3, 2003, the defendant filed a motion to modify child support claiming that he has suffered a substantial change in circumstances, being that he suffered a life threatening medical condition and spent a long period of time hospitalized which precluded him from working or leaving his mother's home.
The parties reached another agreement on February 3, 2003. The agreement provided that the plaintiff agreed to waive the arrearage for unreimbursed medical and extracurricular activities as of February 3, 2003 in exchange for defendant agreeing to allow her to claim all three minor children as dependency exemptions for the 2002 tax year. The agreement also provided that the issue of the amount due, if any, on the child support arrearage and how it will be paid, the defendant's motion for modification of child support and the plaintiff's motion to modify visitation would be heard on February 27, 2003.
On February 27, 2003, the parties reached a final agreement. This agreement provided that: (1) the defendant shall pay $167 per week in child support to the plaintiff, without prejudice to either party to present evidence regarding defendant's motion to modify; (2) the parties can present argument on March 17, 2003 regarding modification of the child support, and after reviewing the decision, either party may reclaim the defendant's motion to modify; (3) if the child support is found nonmodifiable, the defendant shall immediately begin paying $400 per week in support; (4) each party reserves the right to argue the amount, if any, of an arrearage and the payment of the arrearage, if found.
On March 11, 2003, the plaintiff filed an objection to defendant's motion for modification of child support on the basis that pursuant to their separation agreement, the child support is nonmodifiable. On March 17, 2003, the defendant tiled a memorandum in support of his motion to modify child support claiming that the judgment is modifiable notwithstanding the language in the separation agreement and that the children's needs are not protected by the preclusion to modification of child support post judgment. Finally, on March 21, 2003, the plaintiff filed a reply brief in support of her objection to the motion to modify child support claiming that the minor children are not prejudiced by the nonmodifiable child support and that courts have upheld similar language as clear and unambiguous so as to preclude modification of child support.
DISCUSSION
General Statutes § 46b-86 (a) provides in relevant part: " Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines . . ." (Emphasis added.)
"In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated into the judgment is a contract of the parties. Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135, cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000)." Way v. Way, 60 Conn. App. 189, 195, 758 A.2d 884 (2000) "Once the provisions of a separation agreement . . . are incorporated into the dissolution judgment, they can be modified by court order only if the agreement so incorporated does not preclude modification." (Internal quotation marks omitted.) Amodio v. Amodio, supra, 56 Conn. App. 470 (citing Barnard v. Barnard, 214 Conn. 99, 114, 570 A.2d 690 (1990). "A party to a contract is entitled to rely on its provisions as the final interpretation of that party's rights and duties." Amodio v. Amodio, supra, 471.
The defendant in Amodio sought a modification of the support order after paying child support as ordered in the judgment of dissolution for almost five years. Id., 463. The defendant claimed that the order did not conform to the child support guidelines as they existed as of the date of the divorce or as of the date of the defendant's motion to modify. Id. The court held that the separation agreement that was incorporated into the dissolution judgment clearly and unambiguously foreclosed modification of the support order unless the defendant earned more than $900 per week. Id., 471. "The provision in the decree limits a subsequent trial court's power to modify the support order. Accordingly, the provisions of § 46b-86 (a) relating to the modification of child support awards do not apply." Id. Therefore, the court concluded that the dissolution court properly rendered judgment in accordance with the parties' agreement after finding it to be fair and equitable; the trial court should not have modified the amount of' child support payable by the defendant, thereby failing to give effect to the parties' agreement. The appellate court reversed the judgment of the trial court and remanded the case with direction to deny the motion to modify.
The appellate court in Way v. Way, supra, 60 Conn. App. 195, referred to its decision in Amodio v. Amodio, supra, 56 Conn. App. 471, with regard to how it considered the nonmodification provision of § 46b-86 (a). It determined that "[s]ection 46b-86 (a) clearly permits a dissolution court to make nonmodifiable . . . awards . . . When a provision in a divorce decree that precludes or restricts a later court's power to modify financial orders is clear and unambiguous . . . that provision will be upheld . . . A party to a contract is entitled to rely on its provisions as the final interpretation of that party's rights and duties. (Citations omitted; internal quotation marks omitted.) Relying on this standard, the court in Way concluded that "the nonmodification provision in the order for household support is clear, unambiguous and `within the four corners of the instrument . . .' We therefore conclude that the provision is enforceable as a matter of law." Id., 196.
In Way, the parties entered into a separation agreement that was incorporated into the divorce judgment. Pursuant to the terms of the agreement, the defendant was to pay the plaintiff $345 per week in child support and also required the defendant to contribute $260 per week toward the plaintiff's household expenses for a period of five years; the order was nonmodifiable as to duration or amount, and was nontaxable to the plaintiff and nondeductible by the defendant. Way v. Way, supra, 60 Conn. App. 191. The defendant subsequently was laid off by his employer, and his new job paid only about half of the salary he was making when he entered the agreement. As a result of his changed employment, the defendant advised the plaintiff that he was reducing his $605 weekly obligation of combined child ($345) and household ($260) support to $376 per week. Id. The plaintiff then served the defendant with a contempt citation, seeking the difference between the court-ordered $605 weekly financial obligation and the defendant's weekly payment of $376. The defendant responded by filing a motion for modification, claiming a substantial change of circumstances and questioning the meaning of paragraph seven of the separation agreement entitled "Household Support to Wife." The court held that the trial court should not have granted the defendant's motion for modification because paragraph seven clearly and unambiguously states that the household support is nonmodifiable as to duration and amount and that such agreements precluding modification are permissible under § 46b-86 (a).
In the present case, both parties rely on the language of the Amodio case. The standard is that the writing making a support order nonmodifiable needs to be clear and unambiguous in order for it to be enforceable. The plaintiff alleges that the language precluding modification is clear and unambiguous. She claims that the separation agreement only provides for modification in the circumstances where the parties income increases over a specified amount, which has not occurred here. Therefore, the plaintiff claims that the defendant's motion to modify child support should be denied. The defendant, in opposition, alleges that the language in the separation agreement precluding modification is indeed ambiguous. He claims that the agreement provides for circumstances where the incomes of the parties increase, but says nothing about when their incomes decrease. Therefore, the defendant claims that his motion to modify child support should be granted.
This court will follow the holding of Amodio, Way and the Superior Court decision of Spivey v. Spivey, a case involving similar circumstances. In Spivey v. Spivey, Superior Court, judicial district of Stanford-Norwalk at Stamford, Docket No. FA 97 0160109 (October 23, 2002, Lewis, J.T.R.), the plaintiff filed a motion to modify the unallocated alimony and child support awarded by the court. The judgment of dissolution incorporated a separation agreement between the parties, dated the same day as the dissolution judgment. The separation agreement in Section 2.1 provided that the defendant husband would pay unallocated alimony and child support based upon a specific formula that the parties cane up with. The agreement prohibited modification with one exception. Section 2.4 of the agreement provided that the unallocated alimony and support "shall not be modifiable by either party or by the court for any reason whatsoever except in the event either party has a substantial decrease in income." Id.
The plaintiff filed a motion modify the support based on an alleged substantial decrease in the defendant's income. The plaintiff maintained that the child support guidelines require an upward modification of the money she received from the defendant because "the final order for child support substantially deviates from the Child Support Guidelines." Id. The court held that at the time of the parties' dissolution, the Superior Court judge more than complied with the child support guidelines by noting that the amount of money that would be paid as support under the agreement was clearly in comportment with the protection of the interest of the minor child and exceeded the amount of the guidelines. The court further held that the parties agreed that the support could be modified only upon a substantial decrease in gross monthly income from employment, citing Amodio v. Amodio, supra, 56 Conn. App. 459 as the basis for its reasoning. Parties can agree that support may not be modified at all or only under certain conditions, such as upon a substantial decrease in monthly income, as in Spivey v. Spivey, supra, Superior Court, Docket No. FA 97 0160109.
Based on the foregoing, the defendant's motion for modification is denied. The support is nonmodifiable by reason of the separation agreement and decree, except for two circumstances which have not ensued: the plaintiff does not earn more than $350 net per week and the defendant's net weekly pay has not been increased by $150. Furthermore, the parties and the court noted the deviation from the child support guidelines. "The parties recognize that the child support is a deviation from the child support guidelines, but given that the two minor children are disabled, Father agrees to pay the amount set forth above." (Separation Agreement, ¶ 18.) Therefore, the defendant's claim in his memorandum in support of the motion to modify that the children's interest are hindered by the nonmodifiable support order are not substantiated. "The purpose of the child support guidelines is to provide for the adequate support of children. That purpose would be thwarted if a party could not voluntarily agree to more than the presumptive amount set by the guidelines as being appropriate and agreeing that the amount would be nonmodifiable." Amodio v. Amodio, supra, 56 Conn. App. 468.
CONCLUSION
The defendant's motion to modify child support is denied. The parties are bound by the separation agreement which clearly and unambiguously provides for modification only if the parties income goes above a certain amount. The defendant must immediately begin paying support in the amount of $400 per week pursuant to the agreement reached by the parties on February 27, 2003.
CUTSUMPAS, J.