Argued, March 12, 2015
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon. Stanley Novack, judge trial referee, rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the court, Hon. Dennis F. Harrigan, judge trial referee, granted the defendant's motion for modification; subsequently, the court, Schofield, J., granted in part the plaintiff's motion for modification; thereafter, the court, Schofield, J., granted the plaintiff's motion to reargue and issued certain orders, and the plaintiff appealed to this court.
Pursuant to statute (§ 46b-86 [a]), " [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 . . . ."
The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the trial court granting her motion for modification of alimony and child support, but denying her request that the modification order be made retroactive to the date that she filed the motion pursuant to § 46b-86 (a). In 2009, the trial court had granted the defendant's motion for modification to decrease the alimony and support order. In 2011, the plaintiff filed and served her motion for modification to increase that order, alleging that the defendant's income had increased significantly. The trial court rendered judgment in 2013 on the plaintiff's motion for modification, finding that the significant increase in the defendant's income constituted a substantial change in circumstances since the 2009 modification. The trial court declined to order that the modification be made retroactive to 2011, finding that such an order would be unduly harsh. Held that the plaintiff could not prevail on her claim that the trial court abused its discretion in declining to make its modified alimony and support order retroactive, which was based solely on her claim that this court's decision in Zahringer v. Zahringer (124 Conn.App. 672, 6 A.3d 141) set forth a bright line test for retroactivity and that, under that test, the trial court here improperly failed to make its order retroactive; the plaintiff's claim was based on an incorrect reading of Zahringer, which did not definitively state the exclusive factors that a court must consider when determining whether to make a modification order retroactive, but merely noted certain factors applicable to the circumstances of that case, including the length of the time period to adjudicate the motion for modification.
Thomas M. Shanley, for the appellant (plaintiff).
Mark R. Soboslai, for the appellee (defendant).
DiPentima, C. J., and Mullins and Schaller, Js.
DiPENTIMA, C. J.
[158 Conn.App. 168] The plaintiff, Madelaine Hane, appeals from the postdissolution judgment of the trial court denying retroactive application of the order granting her motion to modify alimony and child support payable to her by the defendant, Owen Hane. On appeal, the plaintiff claims that the court abused its discretion by not ordering that the June 5, 2013 order increasing the alimony and child support be applied retroactively to July 11, 2011, the date her motion was served on the defendant. We affirm the judgment of the trial court.
[158 Conn.App. 169] The record reveals the following facts and procedural history. The parties were married in October, 1994, and have two minor children. The court dissolved the marriage on February 14, 2008, and incorporated their written agreement into the judgment. The agreement provided that the defendant would pay unallocated alimony and child support pursuant to a multi-tiered structure due to his compensation schedule and its inherent fluctuations. Specifically, the defendant paid $14,000 per month in " base support"  from his primary employment and 50 percent from any " alternate income." The parties also agreed to a tiered payment structure in the event that the defendant earned more than a certain income during the year.
On February 2, 2009, the defendant filed a motion to modify and decrease his alimony and child support obligations. He alleged a significant decrease in his income and sought an alimony payment of $1 per year and child support payment consistent with the child support guidelines. The court issued a memorandum of decision on August 20, 2009, granting the defendant's motion. Specifically, the court found a substantial change in the defendant's financial circumstances and modified the defendant's unallocated alimony and child support payment to $675 per week.
On June 16, 2011, the plaintiff filed a motion for modification, alleging that the defendant's income had increased significantly and seeking additional alimony and child support. The defendant was served by abode service on July 11, 2011. After a hearing, the court issued a memorandum of decision on June 5, 2013. It noted that modification would be based not on the original judgment, but on the 2009 decision on the defendant's motion for modification. See Borkowski v. Borkowski, [158 Conn.App. 170] 228 Conn. 729, 738, 638 A.2d 1060 (1994). It then stated that it would apply the factors set forth in General Statutes § 46b-82.
The court found that the defendant's earning capacity exceeded $100,000 per year. It further found that the defendant's gross income for 2011 was $474,765 and $531,958 for 2012. For 2012, the defendant's net income was $6277 per week or $336,404 per year. Given these findings, the court ...