Salzbrunn v. Salzbrunn

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SALZBRUNN v. SALZBRUNN—DISSENT

PELLEGRINO, J., dissenting. The majority has
rejected the defendant’s claim that the trial court
applied the incorrect legal standard when considering
the plaintiff’s postjudgment motion for modification.
Because I do not accept this conclusion, I respect-
fully dissent.
Following an uncontested hearing where both parties
were represented by counsel, the court rendered a judg-
ment dissolving the marriage of the plaintiff, Jacqueline
Salzbrunn, to the defendant, Dennis Salzbrunn, on
August 16, 2011. Approximately one year later, the plain-
tiff filed a motion to modify alimony and support. Para-
graphs nineteen and twenty of the separation
agreement, which had been incorporated into the judg-
ment, provided for a modification of alimony and child
support if the plaintiff, who was employed in the defen-
dant’s business, left that employment for any reason,
reciting that such change would constitute grounds for
the modification of alimony. The separation agreement
did not provide that this event constituted a substantial
change of circumstances, which ordinarily is a prerequi-
site for such modification under General Statutes § 46b-
86; but instead, the agreement provided that ‘‘such
change, as aforesaid, need not be substantial to consti-
tute grounds for the modification of alimony.’’ Again,
it should be repeated, that the plaintiff’s motion for
modification came but one year after the divorce was
final, the only change in circumstance was the plaintiff’s
termination of employment, and this change was con-
templated in the separation agreement.
The plaintiff argued in her motion for modification
as follows: ‘‘[I]n view of the changed circumstances of
the plaintiff, the plaintiff seeks orders from this court
modifying the alimony and child support under the
above-cited provisions of the Divorce Decree.’’ The pro-
visions the plaintiff cited to in her motion for modifica-
tion were paragraphs nineteen and twenty of the
divorce decree.1
I believe the trial court was in error in conducting a
full scale review of the financial condition of the parties
under General Statutes § 46b-82. The comprehensive
inquiry conducted by the court, which included, among
other things, adding back the depreciation on the defen-
dant’s rental property and adding $20,000 to the defen-
dant’s net income based on personal expenses paid by
his company, amounted to a complete review of all the
financial orders. This was improper and not in accor-
dance with the terms of the separation agreement,
which provided for an adjustment of the alimony and
support payment based on a change in the plaintiff’s
employment.
In the present case, the plaintiff moved to modify the
judgment specifically based upon paragraphs nineteen
and twenty of the separation agreement. Therefore,
because the plaintiff only requested her alimony and
child support awards to be modified pursuant to the
separation agreement originally agreed to by the parties
and incorporated into the terms of the judgment by the
court, it was improper for the court to go beyond the
agreement and consider all the factors under § 46b-82.
This court in Fox v. Fox, 152 Conn. App. 611, 99 A.3d
1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014),
used the correct legal standard. ‘‘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.’’ (Internal quotation marks omit-
ted.) Id., 619. Moreover, Fox stated that ‘‘[t]he power
of the trial court to modify the existing order does
not, however, include the power to retry issues already
decided . . . or to allow the parties to use a motion
to modify as an appeal. . . . Rather, the trial court’s
discretion includes only the power to adapt the order
to some distinct and definite change in the circum-
stances or conditions of the parties.’’ (Internal quotation
marks omitted.) Id., 621. Here, the order should have
been adapted in accordance with the separation
agreement.
The majority dismisses the defendant’s claim because
it is raised for the first time on appeal. In doing so, the
majority relies on Ucci v. Ucci, 114 Conn. App. 256,
969 A.2d 217 (2009), for the notion that because the
defendant brought this claim for the first time on appeal,
his claim cannot be addressed.2 Under Practice Book
§ 60-5, however, this court ‘‘shall not be bound to con-
sider a claim unless it was distinctly raised at the trial
or arose subsequent to the trial.’’ (Emphasis added.)
Additionally, under Practice Book § 60-5 this court may
‘‘in the interests of justice notice plain error not brought
to the attention of the trial court.’’ The parties have
filed supplemental briefs on this very issue, as it arose
subsequent to the trial, and it was plain error for the
court to use the wrong standard of law. See Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 149–50, 83 A.3d 840 (2014).
For these reasons, I respectfully dissent and would
reverse the judgment of the trial court and remand the
case for further proceedings.
1
If the plaintiff had intended to bring her motion for modification under
either General Statutes §§ 46b-82 or 46b-86, then that must have been specifi-
cally identified in the motion. See Remillard v. Remillard, 297 Conn. 345,
352, 999 A.2d 713 (2010).
2
Ucci is distinguishable from the present case because in that case the
‘‘defendant filed a motion to modify the judgment, claiming a substantial
change in circumstances . . . .’’ Ucci v. Ucci, supra, 114 Conn. App. 257.