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Olson v. Mohammadu

Court of Appeals of Connecticut

November 8, 2016

MARIANNE OLSON
v.
FUSAINI MOHAMMADU

          Argued September 15, 2016

         Appeal from Superior Court, judicial district of Hartford, Hon. Herbert Barall, judge trial referee [dissolution judgment]; Ficeto, J. [motion to modify]; Albis, J. [motion for counsel fees; motion for contempt].

          John F. Morris, for the appellant (defendant).

          Brandon B. Fontaine, with whom, were Emily C. Carr and, on the brief, C. Michael Budlong, for the appellee (plaintiff).

          Alvord, Mullins and Sullivan, Js.

          OPINION

          ALVORD, J.

         The defendant, Fusaini Mohammadu, appeals from the ruling of the trial court, Ficeto, J., denying his postjudgment motion for modification of alimony and child support orders, rendered on remand following the decision of our Supreme Court in Olson v. Mohammadu, 310 Conn. 665, 81 A.3d 215 (2013). Additionally, in his amended appeal, the defendant challenges a subsequent ruling of the trial court, Albis, J., that ordered him to pay the plaintiff, Marianne Olson, [1]$6002 in a previously found arrearage pursuant to an order he claimed had been suspended, and the court's ruling that granted the plaintiff's motion for appellate attorney's fees to defend the present appeal. We affirm the judgments of the trial court.

         The following relevant facts and procedural history are set forth in the Supreme Court opinion. ‘‘The parties were married on June 7, 2001. During the marriage, the parties had one child together. In September, 2008, the plaintiff . . . who resided in Connecticut with [the child], filed a dissolution of marriage action against the defendant, who at that time resided in Florida. On August 5, 2009, the court [Hon. Herbert Barall, judge trial referee] rendered judgment dissolving the parties' marriage. In its orders contained in that judgment, the court ordered joint legal custody of the minor child with primary physical custody to the plaintiff and reasonable visitation rights to the defendant in Connecticut. The court further ordered the defendant to pay the plaintiff periodic alimony in the amount of $777 per week. . . .[2]In addition, the court ordered the defendant to pay child support in the following amounts: $334 per week and 66 percent of day care, extracurricular activities and unreimbursed medical and dental expenses for the benefit of the minor child. . . .

         ‘‘On April 14, 2010, the defendant filed a motion to modify the alimony and child support order. The defendant filed an amended motion to modify on June 18, 2010. As the grounds for his amended motion, the defendant alleged a substantial change in circumstances in that he had relocated from Florida to Connecticut and, consequently, had obtained new employment at a reduced salary. At the modification hearing, the court [Adelman, J.] heard undisputed testimony that the defendant voluntarily left employment as a physician in Florida earning a salary of approximately $180, 000 annually. The defendant testified that he voluntarily relocated to Connecticut in order to have a more meaningful relationship with his child. As a result of the relocation, the defendant's salary was reduced to approximately $150, 000 annually. According to the defendant's testimony, the $150, 000 salary is standard pay for someone of his experience in a comparable position in Connecticut.

         ‘‘After the hearing, the trial court denied the defendant's motion for modification. In denying the motion, the trial court stated in its memorandum of decision that it relie[d] on the voluntary nature of the income change experienced by the defendant. . . . The defendant appealed from the trial court's decision to the Appellate Court.'' (Citation omitted; footnotes altered; internal quotation marks omitted.) Olson v. Mohammadu, supra, 310 Conn. 667-69. ‘‘While the appeal was pending at the Appellate Court, the defendant filed a motion for articulation of the trial court's decision. . . . The trial court granted, in part, the motion for articulation and stated that [t]he court did not consider the relocation to be a substantial change in circumstance[s] because the move was a voluntary action on the part of the defendant.'' (Emphasis in original; internal quotation marks omitted.) Id., 669.

         This court affirmed the judgment of the trial court, concluding that the trial court properly determined that ‘‘a change in income resulting from a voluntary decision does not constitute a substantial change in circumstances.'' Olson v. Mohammadu, 134 Conn.App. 252, 261, 39 A.3d 744 (2012), rev'd, 310 Conn. 665, 81 A.3d 215 (2013). The defendant filed a petition for certification to appeal from the judgment of this court, which was granted by our Supreme Court. The Supreme Court held that ‘‘the Appellate Court improperly concluded that the defendant's voluntary relocation and income change necessarily precluded him from establishing a substantial change in circumstances.'' Olson v. Mohammadu, supra, 310 Conn. 670-71. The court reasoned as follows: ‘‘[T]he trial court should have taken into account the defendant's motivation for relocating in deciding the threshold issue of whether there was a substantial change of circumstances warranting modification. In other words . . . the trial court should have determined whether the defendant's alleged inability to pay was a result of his own extravagance, neglect, misconduct or other unacceptable reason . . . . Because the trial court made no finding on the culpability of the defendant's conduct, we conclude that the trial court incorrectly applied the law when it denied the defendant's motion for modification.'' (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id., 680. Accordingly, the Supreme Court remanded the case to this court with direction to reverse the judgment of the trial court and to remand the case to the trial court for a new hearing on the defendant's motion for modification. Id., 686.

         The rehearing on the defendant's motion for modification was held before Judge Ficeto on April 21, 2014. Both parties testified as to their financial circumstances beginning at the time of the dissolution judgment in August, 2009, and through the succeeding years up to and including the time of the rehearing in 2014. The parties each submitted financial affidavits that had been prepared in 2009 and 2014. The parties' tax returns for 2010, 2011 and 2012 also were admitted into evidence. During their closing arguments, counsel referenced proposed orders filed with the court. In those proposed orders, the plaintiff requested that there be no modification of the alimony and child support orders, whereas the defendant requested a modification that would decrease his support obligations. For 2010, the defendant requested the court to reduce his child support obligation from $334 per week to $237 per week, and to reduce the percentage of his payments for uninsured medical expenses and day care expenses from 66 percent to 55 percent. He additionally requested in his proposed orders that his alimony obligation be reduced from $777 per week to $120 per week. For 2011 and subsequent years, the defendant requested his child support obligation to be modified to $307 per week and his alimony obligation to be modified to $400 per week.

         The court issued its memorandum of decision on May 14, 2014, and modified its ruling in a memorandum of decision filed August 11, 2014.[3] In its May 14, 2014 memorandum of decision, the court found that the defendant was employed in Florida until March, 2010, that he worked part-time in April and June, 2010, [4] and that he became employed full-time by Community Health Center in New Britain on June 28, 2010, at a salary of $150, 000. The court additionally found that he received from his new employer a sign-on bonus of $3000, as well as a payment of $3000 toward his relocation costs. The court found that the defendant worked additional hours at Middlesex Hospital in 2010. In a footnote in its memorandum of decision, the court noted that the defendant was no longer incurring costs for visitation expenses to and from Florida in 2010. Significantly, the court also found that ‘‘in the years subsequent to 2010, [the defendant's] income equaled or surpassed $180, 000 and therefore there is no substantial change in circumstance in the years 2011, 2012 and 2013. [The defendant] is currently on track to exceed $190, 000 in 2014.''

         In its August 11, 2014 memorandum of decision, the court further found that the defendant's net weekly income in 2009, at the time he was earning $180, 000 in Florida, was $2587, as stated in his financial affidavit filed June 4, 2009. As of October 25, 2010, the date of the initial hearing on his motion for modification, the defendant reported his net weekly income to be $1998 on his October 25, 2010 financial affidavit. The court, however, found that the defendant had improperly deducted insurance premiums[5] and contributions to his health care account as ‘‘ ‘above the line' deductions.'' For that reason, the court determined that his net weekly income, as of October 25, 2010, was $2134.

         After concluding that the defendant's net weekly income was reduced by $454, or 17.5 percent, the court denied the defendant's motion for modification: ‘‘When considering a motion for the modification of alimony, the court is permitted to consider the factors set forth in [General Statutes] § 46b-82 namely, the age, health, station, occupation, employability and the amount and sources of income of the parties. . . . The court has carefully considered the facts of this case, the relevant case law and the provisions of [General Statutes §§] 46b-82 and 46b-86 and declines to modify the defendant's support obligations.'' (Citation omitted; internal quotation marks omitted.)

         The defendant appealed from the court's denial of his modification motion on September 29, 2014. Thereafter, on January 19, 2016, Judge Albis heard a number of postjudgment motions filed by both parties. The relevant motions for purposes of this appeal are the plaintiff's motion for contempt and/or for order, and the plaintiff's motion for appellate attorney's fees, both filed on September 10, 2015. In the court's memorandum of decision issued February 10, 2016, Judge Albis determined, inter alia, [6] that the defendant had not wilfully violated the court's April 4, 2013 order to pay the plaintiff an accumulated arrearage of $6002 for his share of child care expenses. Judge Albis found that the order ‘‘contained some uncertainty from the outset'' and that the defendant had mistakenly believed that payment was suspended until all of his appeals had been decided. After stating that there was no automatic or court-ordered stay with respect to that obligation, Judge Albis ordered the defendant to pay the plaintiff the previously ordered arrearage of $6002 in consecutive monthly installments of $1000 until paid in full.

         With respect to the plaintiff's motion for appellate attorney's fees, Judge Albis found that the plaintiff did not have sufficient liquid assets with which to pay her own legal fees. He further found that she did not have sufficient income to pay those fees without using a portion of the child support she received from the defendant, which would undermine the court's prior order of child support. Finally, Judge Albis found that the defendant's income enabled him to pay a portion of the plaintiff's legal fees. Accordingly, the court ordered the defendant to pay the plaintiff $10, 000, in monthly installments of $1000, for the defense of the pending appeal. The defendant filed an appeal from Judge Albis' rulings on February 29, 2016, which was treated as an amended appeal by this court.

         I

         DEFENDANT'S MOTION FOR MODIFICATION

         We initially set forth the well established standard of review and principles of law relevant to the defendant's claims pertaining to the denial of his motion to modify his support obligations. ‘‘The scope of our review of a trial court's exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Nevertheless, we may reverse a trial court's ruling on a modification motion if the trial court applied the wrong standard of law. . . .

         ‘‘[Section] 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is alimony [or child support], the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. . . . To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the ...


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