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Gabriel v. Gabriel

Appellate Court of Connecticut

September 15, 2015

RICHARD P. GABRIEL
v.
DIANA K. GABRIEL

 Argued May 21, 2015

Page 454

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 and parenting plan; thereafter, the court, S. Richards, J., granted the plaintiff's motion for modification of child support and denied the defendant's motion for contempt, and the defendant appealed to this court.

SYLLABUS

The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court granting the plaintiff's postjudgment motion for modification of child support and denying her motion for contempt. The dissolution judgment incorporated the parties' separation agreement, which provided that the plaintiff would pay to the defendant unallocated alimony and child support. The alimony was modifiable by the plaintiff upon a showing of a substantial change in the parties' circumstances, except if, inter alia, those circumstances were based on the defendant's cohabitation with another person. The separation agreement also incorporated the parties' parenting plan, pursuant to which the parties' shared joint legal and physical custody of their children, who would reside equally with the parties. Thereafter, the parties entered into a postjudgment parenting plan because the defendant was relocating to California. Pursuant to that plan, the parties continued to share joint custody of the children, but the children would reside primarily with the plaintiff. The plaintiff subsequently filed a motion for modification of child support asserting that the parties' financial circumstances had changed due to the defendant's relocation. The plaintiff also decreased his monthly unallocated alimony and support payments to the defendant without the court's permission. In response, the defendant filed a motion for contempt, alleging that the plaintiff wilfully violated the court's support order by unilaterally decreasing his payments. The court granted the motion for modification and reduced the plaintiff's alimony payments, finding, inter alia, that the defendant's financial needs had been significantly reduced due to her relocation and cohabitation with a person who was paying a substantial portion of her household expenses. The court also denied the motion for contempt, and the defendant appealed to this court. Held :

1. The trial court improperly granted the plaintiff's motion for modification of child support: although the separation agreement permitted the modification of alimony by the plaintiff upon a showing of a substantial change in the parties' circumstances and the parties stipulated that such a change had occurred, the agreement clearly prohibited any modification based on the defendant's cohabitation, which was a significant factor in the court's decision to modify the award; furthermore, although the plaintiff's motion expressly sought modification of the child support portion and not the alimony portion of the unallocated award due to the children's change of primary residence, the court made no findings regarding child support, and there was no indication in the record that the court, in modifying the award, considered the child support guidelines or determined what portion of the original award constituted child support and what portion constituted alimony.

2. The trial court improperly denied the defendant's motion for contempt, as that court, in determining that the plaintiff did not act contemptuously when he unilaterally decreased his alimony and support payments, incorrectly relied on the statute (§ 46b-224) that, under certain circumstances, permits the suspension of a child support order when there is a change in the custody of a child; because § 46b-224 relates to child support and not to alimony, and because it was clear from the trial court's decision that it found that some portion of the plaintiff's unilateral reduction of his unallocated alimony and support payments was attributable to alimony, the trial court improperly relied on that statute in finding that the plaintiff was not in contempt, as the statute did not give the plaintiff the right to unilaterally suspend his unallocated alimony and child support obligation.

Norman A. Roberts II, with whom, on the brief, was Anthony L. Cenatiempo, for the appellant (defendant).

Joseph T. O'Conner, for the appellee (plaintiff).

Beach, Mullins and Bishop, Js.

OPINION

Page 455

[159 Conn.App. 807] MULLINS, J.

The defendant, Diana K. Gabriel, appeals from the judgment of the trial court modifying the unallocated alimony and support order of the dissolution court, and denying her motion for contempt filed against the plaintiff, Richard P. Gabriel. On appeal, the defendant claims that the court improperly modified her alimony award and denied her motion for contempt. We reverse the judgment of the trial court.

The following facts inform our review. The plaintiff and the defendant were married on July 1, 1995, and three children were born of the marriage. On April 7, [159 Conn.App. 808] 2011, the court dissolved the parties' marriage. The court incorporated the parties' separation agreement into its judgment. The parties' separation agreement also incorporated a July 21, 2010 parenting plan, in which the parties agreed to share joint physical and legal custody of the children, with primary physical custody also shared. The agreement also provided for unallocated alimony and support from January 1, 2011, to December 31, 2015. The alimony was non-modifiable by the defendant as to amount and duration. The plaintiff, however, had the right to seek a modification of alimony on the basis of a substantial change in circumstances, so long as those circumstances were not based on the defendant's cohabitation or an increase in the defendant's earnings up to $100,000.

On May 1, 2012, the parties entered into a postjudgment parenting plan because the defendant was relocating to California, and the plaintiff did not want the defendant to take the children with her. Pursuant to this plan, which the court accepted, both parties continued to share " joint legal and physical custody of the minor children," but the children primarily would reside with the plaintiff in Connecticut. The parenting plan also granted the defendant liberal visitation, including either the children's February or April vacation and a substantial portion of their summer vacation. The parenting plan was contingent on the defendant moving to California and was void if she stayed in Connecticut. The parenting plan did not address the issue of child support, and the court did not raise

Page 456

that issue during the hearing on the parenting plan.

On June 28, 2012, the plaintiff filed a motion for modification of child support, asserting that " [t]he financial circumstances of the parties have changed as a result of the defendant's relocation. [The defendant] no longer has primary residential custody of the children and is no longer primarily responsible for their [159 Conn.App. 809] financial needs. The [plaintiff] now has custody and primary responsibility for all three minor children." On October 5, 2012, without permission from the court, the plaintiff unilaterally decreased his payments to the defendant from $54,666 per month to $20,000 per month. In response, the defendant filed a motion for contempt, alleging that the plaintiff improperly had engaged in self-help by reducing his unallocated support payments in violation of the existing orders of the court.

On November 5, 2013, the court granted the plaintiff's postjudgment motion for modification of child support, finding that the parties had stipulated that there had been a substantial change in circumstances.[1] The court also found that the defendant's financial needs had been reduced significantly by her move to California and her cohabitation with a man who was paying a portion of her household expenses. Accordingly, the court reduced the plaintiff's alimony payments to $20,000 per month. On the basis of the plaintiff having assumed primary physical custody of the children, the court, citing General Statutes § 46b-224,[2] also found that the plaintiff was not in ...


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