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Mountain v. Mountain

Court of Appeals of Connecticut

April 9, 2019

JOHN A. MOUNTAIN
v.
HEIDI L. MOUNTAIN

          Argued January 14, 2019

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Danbury and tried to the court, Winslow, J.; judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the court, Hon. Sidney Axelrod, judge trial referee, granted in part the plaintiff's motion to modify custody of the parties' minor children, and denied the plaintiff's motion to modify alimony and child support, and the plaintiff appealed to this court. Affirmed.

          John A. Mountain, self-represented, the appellant (plaintiff).

          Sheldon, Keller and Bear, Js.

          OPINION

          SHELDON, J.

         The plaintiff, John A. Mountain, appeals from the judgment of the trial court denying his post-judgment motion to modify his unallocated alimony and child support obligation to the defendant, Heidi L. Mountain, pursuant to the judgment dissolving their marriage. The plaintiff claims that the court erred in finding that he failed to prove that there was a substantial change in circumstances warranting such a modification. We affirm the judgment of the trial court.

         The marriage of the parties, who share four minor children, was dissolved on January 9, 2014. The court approved the separation agreement and the parenting plan filed by the parties, and incorporated them into the judgment of dissolution. The judgment provided, inter alia, that the parties would share joint legal and physical custody of their four children and that the children's primary physical residence would remain at the marital home in Ridgefield, with the defendant. The plaintiff agreed to pay the defendant the sum of $6700 per month as unallocated alimony and child support for a term of nine years beginning on February 1, 2014. The judgment provided: ‘‘The [plaintiff]'s obligation to pay alimony and child support at the rate stated above is conditioned upon his current financial and personal opportunities and his ability to borrow the funds necessary to meet his obligations. Any significant change in these circumstances warrants a substantial change of circumstances.''[1]

         On March 13, 2015, the plaintiff filed a motion to modify custody of the minor children due to his relocation from Westport to Weston. By way of memorandum of decision filed October 29, 2015, the court found that there had been a substantial change in circumstances due to the plaintiff's relocation to Weston, but it denied the plaintiff's request to modify the children's primary residence to Weston. Instead, it modified the parties' parenting plan to afford the plaintiff additional time with the children.

         Also on March 13, 2015, the plaintiff filed a motion to modify his unallocated alimony and child support obligation, wherein he claimed that there had been a substantial change in circumstances for the following reasons: his income had decreased since the date of dissolution; he no longer had the ability to borrow money to satisfy his unallocated alimony and support obligation; he was spending more time with the children than he had been at the time of dissolution; he and his current wife had been paying directly for the ‘‘vast majority of the expenses for the minor children such as clothes, camp, therapy, and activities, '' although the separation agreement entered into at the time of dissolution contemplated that those expenses would be paid by the defendant; the defendant was cohabiting; and the defendant was working and earning more income than she had been at the time of dissolution. By memorandum of decision filed February 1, 2016, the court rejected all of the plaintiff's claims and denied his motion to modify.

         On July 8, 2016, the plaintiff filed a second motion to modify his unallocated alimony and child support obligation, claiming that there had been a substantial change in circumstances since the denial of his previous motion to modify on February 1, 2016. Apart from reciting the actions he had taken to satisfy his financial obligations since the denial of his previous motion to modify, the only change in circumstances that the plaintiff alleged in his second motion to modify was that he was no longer able to borrow money to meet those obligations.

         By way of memorandum of decision filed October 24, 2017, following an evidentiary hearing, the court denied the plaintiff's motion to modify. The court explained that the dissolution judgment ‘‘refers to [the plaintiff's] ability to borrow funds necessary to meet his obligations from [his current wife], the Jim Torrey Fund, and his parents . . . .'' The court found that the plaintiff no longer had the ability to borrow funds from the Jim Torrey Fund or from his parents, but that he had ‘‘failed to meet his burden of proof that he no longer has the ability to borrow funds from [his current wife].'' The court based that determination on the fact that the plaintiff had, in fact, borrowed money from his current wife to satisfy his financial obligations to the defendant since the date that he filed his second motion to modify in which he claimed that he had lost that ability. This appeal followed.

         ‘‘Modification of . . . support is governed by General Statutes § 46b-86 (a), which provides in relevant part: Unless and to the extent that the decree precludes modification, any final order for the periodic payment of . . . support . . . may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party . . . .

         ‘‘We previously have explained the specific method by which a trial court should proceed with a motion brought pursuant to § 46b-86 (a). When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the . . . [General Statutes] § 46b-82 criteria, make an order for modification. . . . The court has authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. . . . Simply put, ...


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