Opinion
FS104018720
10-01-2018
Amity WALLACE v. Michael WALLACE
UNPUBLISHED OPINION
OPINION
Hon. Margarita Hartley Moore, Judge
This matter came before the court pursuant to the defendant’s motion to modify postjudgment dated July 22, 2016. (# 315.01.) A hearing was held on August 28, 2018 and each party was represented by counsel. The parties are the parents of three children. The defendant requests the modification of unallocated alimony and child support based on the parties’ second child reaching the age of majority and graduating from high school. Although the defendant does not specifically state in his motion that there has been a substantial change in circumstances meriting a modification of alimony and child support, the court gleans from the motion that the defendant claims the second child reaching majority is a substantial change in circumstances warranting a modification. At the hearing, the defendant argued that the plaintiff’s increase in income was a second basis for modification, however, the defendant’s motion for modification is silent as to the change in the plaintiff’s income constituting a substantial change necessitating modification.
Practice Book § 25-26(e) provides in relevant part: each motion for modification shall state the specific factual and legal basis for the claimed modification ... In Prial v. Prial, the Appellate court held it was an abuse of discretion for the court to consider grounds not raised in a motion to modify financial orders. 67 Conn.App. 7, 13, 787 A.2d 50, 54-55 (2001).
"Reviewing this requirement in the context of motions to modify support orders, we have held that a court’s reliance on a ground not raised in a motion to modify is an abuse of discretion in the absence of an amendment to the motion." Prial v. Prial, 67 Conn.App. 7, 12-13, 787 A.2d 50 (2001); see also Petrov v. Gueorguieva, 167 Conn.App. 505, 514, 146 A.3d 26, 33 (2016).
The marriage of the parties was dissolved by memorandum of decision dated April 18, 2012 (Adelman, J.). On July 1, 2013, Judge Adelman granted the defendant’s motion to modify the unallocated alimony and child support order and reduced the unallocated figure. (# 271.) On July 22, 2016, the defendant filed the motion for modification currently before the court. The sole basis in defendant’s motion for modification was the middle child reaching majority and graduating high school. In the orders addressing the modification in 2013, the court noted the middle child was no longer residing with the parties and was in fact residing with the grandparents in New York pursuant to an agreement of the parties. (# 271 pgs. 1-2.) Throughout the decision from July 1, 2013, Judge Adelman addressed support for one child, the youngest. The court found: "the child support guidelines would call for child support from the defendant to the plaintiff for the support of one child, in the amount of $503 per week, based on the figures supplied by the defendant in his financial affidavit." (# 271, pg. 9 emphasis added.) Support for the middle child was not addressed by the court since the child was not residing with either party. (See # 271 pgs. 1-2.) One minor child, the youngest, continues to reside with the plaintiff today; therefore, there was no substantial change in circumstances from the date of the court’s orders in 2013.
Moreover, the defendant now claims the child support calculations utilized by Judge Adelman in 2013 were incorrect. If in fact that assertion first raised in defendant’s brief, is correct, the issue should have been addressed shortly after the decision was rendered by Judge Adelman in 2013. Moreover, inaccurate child support calculations were not a ground listed in the defendant’s motion for modification.
Based on the forgoing, the defendant’s motion for modification dated July 22, 2016 is denied.