De Almeida-Kennedy v. Kennedy

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FATIMA K. DE ALMEIDA-KENNEDY v.
JAMES KENNEDY
(AC 46050)
Alvord, Cradle and Clark, Js.

Syllabus

The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
denying his motion for modification of unallocated alimony and child
support. At the time of dissolution in 2010, the parties had two minor
children. The judgment of dissolution incorporated a separation agree-
ment, which provided, inter alia, that the plaintiff would have legal and
physical custody of the parties’ children and that the defendant would
pay unallocated alimony and child support in the amount of $1000
weekly. In 2014, by agreement of the parties, the defendant’s unallocated
alimony and child support was reduced from $1000 to $900 weekly. The
2014 agreement did not specify the amount of child support due to the
plaintiff as a portion of the defendant’s unallocated support, nor did the
agreement expressly prohibit the modification of alimony. The defendant
sought modification of the unallocated alimony and child support after
the plaintiff and the children moved to Tennessee. During the hearing
on the motion, the defendant identified, as substantial changes in circum-
stances, the plaintiff’s cohabitation and the change in residence in 2021
of his older child, who was then eighteen years old, from the plaintiff’s
home to the home of the defendant. In support thereof, the defendant
sought to have his older child testify as to his change in residence as
well as to the plaintiff’s cohabitation, which the trial court denied, stating
that it did not need the older child’s testimony. The trial court also
heard the testimony of a private investigator as to the plaintiff’s cohabita-
tion, and the defendant entered exhibits in support thereof. The plaintiff
was not present at the hearing. In denying the defendant’s motion, the
court found, inter alia, that the defendant had failed to prove a substantial
change in circumstances and that the testimony of the private investiga-
tor was insufficient and not credible to support a finding of cohabita-
tion. Held:
1. The trial court abused its discretion in denying the motion for modification
with respect to the child support component of the unallocated support
obligation because the court’s finding that the defendant failed to demon-
strate a substantial change in circumstances was clearly erroneous: this
court concluded, on the basis of the undisputed evidence in the record,
that the change in residence of the parties’ older child, from the home
of the plaintiff to the home of the defendant, amounted to a substantial
change in circumstances pursuant to statute (§ 46b-86 (a)); moreover,
the trial court’s finding to the contrary was not supported by the evi-
dence, as the court did not have any evidence before it that the defendant
was not providing for the older child’s necessary expenses and it did
not make any findings based on the undisputed evidence that established
a change in the older child’s residence.
2. The trial court improperly denied the defendant’s motion for modification
without determining the child support component of the unallocated
order, and this court, having determined that the defendant was entitled
to a new hearing with respect to his motion to modify the child support
component of the unallocated order, set forth the procedure applicable
to the financial aspects of the modification of child support in the context
of an unallocated support order on remand; the trial court should first
unbundle the child support from the unallocated alimony and child
support by determining the parties’ net weekly income with the assis-
tance of the 2014 financial affidavits, which the trial court had access
to as they were part of the record, second, the trial court must calculate
the presumptive support amount for the two children who, at that time,
were minors, using the 2005 Child Support and Arrearage Guidelines in
effect at the time of the parties’ 2014 agreement, third, the trial court
must ascertain the intent of the parties as to how the $900 weekly sum
was to be divided because the 2014 agreement was not clear, and, finally,
the trial court must consider the newly determined 2014 child support
award against the parties’ current financial circumstances, which also
must be determined due to the passage of time since the trial court
initially addressed the defendant’s request for modification.
3. The trial court abused its discretion in denying the defendant’s motion for
modification with respect to the alimony component of his unallocated
support obligation: under the totality of the circumstances in the present
case, this court concluded that the trial court misapplied the law at the
time of the hearing on the motion for modification, as the trial court
was under the misapprehension that the separation agreement precluded
the termination of alimony, including on the basis of cohabitation, until
the death of either party, and, contrary to the trial court’s remarks
during the hearing, the separation agreement did not provide that the
unallocated support obligation was nonmodifiable as to amount or term
pursuant to statute (§ 46b-86 (a)); moreover, the trial court, having
incorrectly expressed that cohabitation could not form a basis for modifi-
cation of alimony, essentially misled the defendant in forgoing his oppor-
tunity to present his older child’s testimony, which the court had not
precluded on evidentiary grounds, as additional evidence in support of
the defendant’s allegation of the plaintiff’s cohabitation; furthermore,
despite the trial court having determined that the defendant failed to
provide satisfactory evidence of cohabitation, the trial court did not
identify any particular aspects of the private investigator’s testimony
that it specifically discredited, nor did it offer any explanation of its
determination that the private investigator’s testimony, as a whole, was
not credible; accordingly, the defendant was entitled to a new hearing
on the motion for modification.
Submitted on brief January 10—officially released February 27, 2024

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the court, Gould, J., rendered
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Egan, J., granted the
plaintiff’s motion to dismiss the defendant’s motion to
modify unallocated alimony and child support obliga-
tions, from which the defendant appealed to the Appel-
late Court, Alvord, Elgo and Alexander, Js., which
reversed the trial court’s judgment and remanded the
case to that court for further proceedings; subsequently,
the court, Hon. Eddie Rodriguez, Jr., judge trial referee,
denied the defendant’s motion for modification of unal-
located alimony and child support, from which the
defendant appealed to this court. Reversed in part;
further proceedings.
James Kennedy, self-represented, filed a brief as the
appellant (defendant).
Opinion

ALVORD, J. In this postjudgment dissolution matter,
the self-represented defendant, James Kennedy,
appeals from the judgment of the trial court denying
his motion for modification of his unallocated alimony
and child support obligation. On appeal, the defendant
claims1 that the court abused its discretion in (1)
determining that the change in residence of the parties’
older child did not constitute a substantial change in
circumstances, (2) denying the defendant’s motion
without determining the child support component of
the unallocated order, (3) interpreting the unallocated
support obligation as set forth in the parties’ separation
agreement to be nonmodifiable, and (4) disallowing the
testimony of the parties’ older child as to the alleged
cohabitation of the plaintiff, Fatima K. De Almeida-
Kennedy.2 We reverse in part the judgment of the court.3
The following facts and procedural history are rele-
vant to our resolution of this appeal. The court, Gould,
J., dissolved the parties’ marriage on August 2, 2010.
At the time of the dissolution, the parties had two minor
children.4 The judgment of dissolution incorporated by
reference the parties’ separation agreement dated
August 2, 2010 (separation agreement). The separation
agreement provided, inter alia, that the plaintiff would
have legal and physical custody of the parties’ children
and the defendant would have supervised visitation.
Section 3.1 of the separation agreement provided that
the defendant would pay unallocated alimony and child
support to the plaintiff in the amount of $1000 weekly.
It further provided: ‘‘Said unallocated alimony and child
support shall end on the death of either [p]arty. The
[p]arties agree that at present both children have been
determined to be [s]pecial [n]eeds [c]hildren as defined
by the Connecticut [s]tatutes.’’ In Article IV of the sepa-
ration agreement, titled Alimony, the parties agreed in
§ 4.2 that ‘‘[t]he unallocated alimony and child support
provided in 3.1 above is based on an earning capacity
of the [defendant] of $90,000. The [plaintiff] shall not
ask for an increase until the [defendant’s] actual weekly
earnings exceed this annualized amount.’’ Section 4.3
of Article IV further provided that ‘‘[t]he [defendant]
agrees to not seek a downward modification of unallo-
cated alimony and child support until the [plaintiff’s]
annualized earnings exceed $50,000 per year.’’
On December 9, 2014, the dissolution judgment was
modified by agreement of the parties (2014 agreement)
to provide, inter alia, that the defendant’s unallocated
child support and alimony would be reduced to $900
weekly.5 The 2014 agreement also removed the provi-
sion in Article IV, § 4.3, that prohibited the defendant
from seeking a downward modification in his support
payment until the plaintiff’s annualized earnings
exceeded $50,000 per year. The 2014 agreement pro-
vided the parties joint legal custody of their children,
with primary physical custody remaining with the plain-
tiff.
On April 4, 2018, the defendant filed the motion for
modification at issue in this appeal, in which he sought,
inter alia, modification of his unallocated alimony and
child support obligation. The defendant’s motion
requested that ‘‘the court . . . enter an order establish-
ing the child support portion of unallocated, as estab-
lished by the financial affidavits provided by both par-
ties on August 2, 2010, to be $179 per week dating from
August 2, 2010, through present.’’ It further requested
that the court enter an order terminating alimony as of
the date of service of the motion to modify. In the
event that the court declined to terminate alimony, the
defendant requested that alimony be set at $1 per year
until the child support for the minor children terminated
and that, at that point, alimony be terminated.
The defendant recited, as the legal basis for his
requested modification, that ‘‘no court . . . has ever
followed Connecticut statutory law nor case law in
terms of making a determination on the record of the
amount of child support due commencing August 2,
2010.’’6 In support of his requested modification, the
defendant alleged, inter alia, that the ‘‘proper amount
of child support due to the plaintiff’’ had not been deter-
mined by a court; the plaintiff had sought, by herself
and through various state and federal agencies, to col-
lect from the defendant 100 percent of the unallocated
support ‘‘as though it were child support’’; the defendant
had lost his primary client in January, 2018; the defen-
dant was under the care of a psychiatrist; and the ‘‘termi-
nation date of alimony that was contemplated by the
parties at the time of dissolution is not reflected within
the [separation] agreement.’’
The court, Egan, J., dismissed the motion on the
basis that it lacked subject matter jurisdiction under
the Uniform Child Custody Jurisdiction and Enforce-
ment Act (act), General Statutes § 46b-115 et seq.,
because all parties no longer lived in Connecticut. See
De Almeida-Kennedy v. Kennedy, 207 Conn. App. 244,
253, 262 A.3d 872 (2021). The court noted, inter alia,
that the defendant had moved to Florida in October,
2017, that the plaintiff had averred in an affidavit that
she and the parties’ children had moved to Tennessee
in April, 2018, and that they had lived in Franklin, Ten-
nessee for at least seven months as of November 7,
2018.7 Id., 251–52. On appeal, this court determined
that the court improperly dismissed the portion of the
defendant’s motion to modify that related to his support
obligation, as it was beyond the purview of the act. Id.,
264. Accordingly, this court reversed the judgment with
respect to the defendant’s motion to modify the unallo-
cated alimony and child support order and remanded
the case for further proceedings. Id., 265.
On May 13, 2022, the court, Hon. Eddie Rodriguez,
Jr., judge trial referee, held a hearing on the defendant’s
motion to modify. The defendant appeared and the
plaintiff did not.8 A motion to compel, filed by the defen-
dant, also was scheduled for hearing on that day.
Addressing that motion, the defendant argued that, ‘‘as
of today, I have no updated financial affidavit nor any
financial compliance from the plaintiff and have not
had it for now going on four and a half years. And, at
this point I . . . realize that a . . . motion to compel
probably—I’m prepared to go forward in absence of
her compliance, but I have . . . if the court pleases, I
do have copies of depositions where she has not
appeared. But at this time, I’d just . . . like to say that,
you know, I . . . haven’t been able to get anything,
any information, and I’ve sent out multiple requests for
production in the past. I get the same response every
time which is either, well, no response, or . . . that
she doesn’t have to comply.’’ The court stated that it
was denying the defendant’s motion to compel, without
prejudice, because ‘‘there’s no evidence anywhere in
the file, no filing that that motion has been served.’’
The court then held a hearing on the defendant’s
motion for modification. The defendant testified to his
understanding of the separation agreement’s support
provision, pursuant to which he contended that the only
restriction on modification was related to the parties’
earnings. The defendant also explained that, as a result
of the plaintiff seeking to collect on a child support
arrearage he owed, he lost the ability to travel interna-
tionally. He specifically requested that the court make
a determination ‘‘of what child support should’ve been
in 2010 at the time of’’ the separation agreement. The
defendant represented to the court that, ‘‘according to
the [Child Support and Arrearage Guidelines] at the
time, [child support] would’ve been [$]193 a week for
two—for my two sons.’’ The defendant identified, as
substantial changes in circumstances, the plaintiff’s
cohabitation and the change in residence of the parties’
older child, from the plaintiff’s home to the defendant’s
home, in November, 2021.
With respect to alimony, the defendant stated: ‘‘In
2018, when my ex-wife went to Tennessee, she started
cohabitating with a gentleman named Joseph Meade. I
have two witnesses that are prepared here today to
testify as to the cohabitation; one who was living in the
house and one who’s a private investigator. At that time,
I was requesting—or I—I would like to have the court
order that alimony be terminated as of that cohabitation
on the basis of a change in circumstances and on the
basis that we had a nine year marriage and already this
is now—we’re now looking at thirteen years later where
alimony is still in the discussion. It was never my under-
standing, ever, that alimony was going to be as long as
it has been.’’
The defendant also presented the testimony of Amy
Drescher, a licensed private investigator from Franklin,
Tennessee, who participated in an investigation of the
plaintiff at the defendant’s request from December,
2018, through spring, 2019. Drescher testified that she
saw the parties’ two children being picked up and
dropped off by the school bus at 266 Rich Circle, in
Franklin, Tennessee (Rich Circle address). Although
she never saw the plaintiff at the Rich Circle address,
she did observe a vehicle registered to the plaintiff
consistently parked in the driveway. The address for
the vehicle’s registration was the plaintiff’s post office
box in Thompson Station, Tennessee. Drescher also
testified that she observed a vehicle registered to the
Rich Circle address in the name of Joseph Meade and
a large box at the end of the driveway addressed to
Meade. The defendant entered into evidence a photo-
graph of the Rich Circle address showing the driveway,
the residence, and the box at the end of the driveway.
On one occasion, Drescher testified that she saw Meade
drop one of the children off at the Rich Circle address.
She also testified that she had access to a proprietary
database, which pulls information from different
sources, and that the Rich Circle address did appear in
that database for Meade. Drescher testified that she
did not have any additional information connecting the
plaintiff to the Rich Circle address. Drescher then testi-
fied regarding her training and experience,9 in response
to questions posed by the court. Drescher also testified
that Meade is the owner of the Rich Circle property
and that he is a licensed real estate agent. Drescher
testified that the plaintiff had a licensed business in
Tennessee called Tasty Good Eats. She testified that
the filing information for the business showed that it
was registered to an address in Murfreesboro, Tennes-
see, which location also was owned by Meade.
On May 27, 2022, the defendant filed a memorandum
in support of his proposed orders with respect to his
motion for modification. On November 10, 2022, the
court issued an order denying the defendant’s motion
for modification. The order stated in relevant part:
‘‘Although the defendant claimed to be entitled to a
reduction and modification of the unallocated alimony
and child support, he failed to prove a substantial
change in circumstances. The initial judgment called
for payment of unallocated alimony and child support
by an agreement filed on August 2, 2010. A few handwrit-
ten changes were made to the agreement by the parties
at the last minute. It precluded specific child support
but included unallocated child support and alimony in
the amount of $1000 per week. At that time, there were
two minor children.
‘‘The court finds that at no time did [the defendant]
comply with any of the support orders. He essentially
paid whatever amounts which he chose to pay, and he
always paid less than the original order.
‘‘As a result, and over the years, a substantial arrear-
age has accumulated. The court finds that [the defen-
dant] has moved for modification of a judgment with
unclean hands.
‘‘Also, [the defendant] has attempted but failed to
provide the court satisfactory evidence of cohabitation.
He did not provide the court sufficient evidence to
warrant a finding of cohabitation.
‘‘Equally as important is the fact that the judgment file
sought to be modified has consistently been unallocated
alimony and child support throughout the long history
of hearings.
‘‘The testimony of Amy [D]rescher (who traveled
from Franklin, Tennessee [to] appear as a witness),
is found to be not credible, also insufficient to prove
cohabitation as required by law.’’ This appeal followed.10
Before turning to the defendant’s claim on appeal,
we set forth the well settled standard of review in family
matters. ‘‘An appellate court will not disturb a trial
court’s orders in domestic relations cases unless the
court has abused its discretion or it is found that it
could not reasonably conclude as it did, based on the
facts presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Appellate
review of a trial court’s findings of fact is governed
by the clearly erroneous standard of review. The trial
court’s findings are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . There-
fore, to conclude that the trial court abused its discre-
tion, we must find that the court either incorrectly
applied the law or could not reasonably conclude as
it did.’’ (Internal quotation marks omitted.) O’Neill v.
O’Neill, 209 Conn. App. 165, 171–72, 268 A.3d 79 (2021);
see also Gabriel v. Gabriel, 324 Conn. 324, 336, 152
A.3d 1230 (2016) (‘‘[n]otwithstanding the great defer-
ence accorded the trial court in dissolution proceed-
ings, a trial court’s ruling . . . may be reversed if, in
the exercise of its discretion, the trial court applies
the wrong standard of law’’ (internal quotation marks
omitted)).
I
We first address the defendant’s claim that the court
abused its discretion in denying his motion for modifica-
tion with respect to the child support component of
his unallocated support obligation because the court
improperly determined that the change in residence of
the parties’ older child, from the plaintiff’s home to
the defendant’s home, did not constitute a substantial
change in circumstances. We conclude that the court’s
finding that the defendant failed to demonstrate a sub-
stantial change in circumstances is clearly erroneous.
‘‘[General Statutes §] 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 [or child support]
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 demon-
strating that such a change has occurred. . . . To
obtain a modification, the moving party must demon-
strate 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 establishment of
changed circumstances is a condition precedent to a
party’s relief, it is pertinent for the trial court to inquire
as to what, if any, new circumstance warrants a modifi-
cation of the existing order.’’ (Footnote omitted; inter-
nal quotation marks omitted.) Fox v. Fox, 152 Conn.
App. 611, 619–20, 99 A.3d 1206, cert. denied, 314 Conn.
945, 103 A.3d 977 (2014). ‘‘A finding of a substantial
change in circumstances is subject to the clearly errone-
ous standard of review.’’ (Internal quotation marks
omitted.) Flood v. Flood, 199 Conn. App. 67, 78, 234
A.3d 1076, cert. denied, 335 Conn. 960, 239 A.3d 317
(2020). ‘‘A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Tilsen
v. Benson, 347 Conn. 758, 796–97, 299 A.3d 1096 (2023).
As our Supreme Court has explained, ‘‘ensuring that
the custodian receives the support payments is consis-
tent with the fundamental purpose of child support,
which is to provide for the care and well-being of minor
children. . . . General Statutes § 46b-84 (a), which
impos[es] a duty on divorced parents to support the
minor children of their marriage, creates a correspond-
ing right in the children to such support. . . . This right
does not come through their [parental custodian]. . . .
Child support therefore furnishes the custodian with
the resources to maintain a household to provide for
the care and welfare of the children; in essence, the
custodian holds the payments for the benefit of the
child. Consequently, once custody changes, there is no
immediately apparent reason for the former custodian
to continue to receive the payments because the pre-
sumption is that the former custodian is no longer pri-
marily responsible for providing the children’s neces-
sary living expenses, including food, shelter and
clothing. In turn, permitting the diversion of funds away
from the parent providing for the care and well-being
of minor children when custody changes, pursuant to
the parents’ contractual agreement, would contravene
the purpose of child support.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Tom-
linson v. Tomlinson, 305 Conn. 539, 555, 46 A.3d 112
(2012).
In the present case, the defendant testified that the
parties’ older child, who was eighteen years old at the
time of the hearing, had moved to live with him in
November, 2021.11 In addition, the defendant repre-
sented that the child was present in court on the date
of the hearing to testify. The plaintiff failed to attend
the hearing and, consequently, the court did not have
before it any evidence that the defendant was not pro-
viding for the child’s necessary expenses.
In its order denying the defendant’s motion for modi-
fication, the court did not make any findings based on
the undisputed evidence establishing a change in the
child’s residence. The court stated only that the defen-
dant had ‘‘failed to prove a substantial change in circum-
stances.’’ See Munson v. Munson, 98 Conn. App. 869,
875, 911 A.2d 1158 (2006) (reversing judgment because
decision and articulation were irreconcilable, and not-
ing that, where party seeking modification of child sup-
port had alleged that parties’ two minor children were
residing primarily in his care, ‘‘the factual question of
the children’s residence must be resolved for a determi-
nation of the disputed financial issues’’).12
On the basis of the wholly undisputed evidence in
the record, we are persuaded that the change in resi-
dence of the parties’ older child from the home of the
plaintiff to the home of the defendant amounted to a
substantial change in circumstances, and the court’s
finding to the contrary is not supported by the evi-
dence.13 The proper remedy is for this court to reverse
the judgment in part and remand the case for a new
hearing on the motion for modification of the child
support component of the defendant’s unallocated sup-
port obligation as set forth in the 2014 agreement.
II
We next address the defendant’s claim on appeal that
the court improperly denied his motion for modification
without determining the child support component of
the unallocated order. Although we already have deter-
mined in part I of this opinion that the defendant is
entitled to a new hearing with respect to his motion to
modify the child support component of the unallocated
order, in order to provide guidance on remand, we set
forth the procedure applicable to the financial aspects
of the modification of child support in the context of
an unallocated support order, a process this court has
described as ‘‘unbundling.’’ See Ross v. Ross, 200 Conn.
App. 720, 731, 239 A.3d 1280 (2020).
Our Supreme Court has explained that, ‘‘[e]ven
though an unallocated order incorporates alimony and
child support without delineating specific amounts for
each component, the unallocated order . . . necessar-
ily includes a portion attributable to child support in
an amount sufficient to satisfy the guidelines.’’ Tomlin-
son v. Tomlinson, supra, 305 Conn. 558.14 Accordingly,
to decide a motion to modify, ‘‘a trial court must deter-
mine what part of the original decree constituted . . .
child support and what part constituted . . . alimony.’’
Id.; see also Brown v. Brown, 199 Conn. App. 134, 152,
235 A.3d 555 (2020) (‘‘[i]n other words, before the court
may rule on the motion to modify, it must unbundle
the unallocated support’’).
The court in Tomlinson further explained that,
‘‘[g]iven that [t]he original decree [of dissolution] . . .
is an adjudication by the trial court as to what is right
and proper at the time it is entered . . . the trial court
must first determine what portion of the unallocated
order represented the child support component at the
time of the dissolution.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) Tomlinson
v. Tomlinson, supra, 305 Conn. 558. The absence of a
specific finding from the court that issued the original
order or prior modification as to the amount of child
support does not prevent the trial court from ruling on
a motion for modification. Gabriel v. Gabriel, supra,
324 Conn. 338. ‘‘Instead . . . if the court issuing the
original support order fails to make the necessary spe-
cific findings, the appropriate remedy is for the court
hearing the motion for modification to make the neces-
sary findings.’’ Id. ‘‘Additionally, because questions
involving modification of alimony and support depend
. . . on conditions as they exist at the time of the hear-
ing . . . it is necessary to evaluate the parties’ present
circumstances in light of the passage of time since the
trial court’s original calculation.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Tomlinson v. Tomlinson, supra, 558.
Finally, ‘‘[i]n modifying the [unallocated child] sup-
port [and alimony] order in a subsequent proceeding,
a trial court may consider the same factors applied in
the initial determination to assess any changes in the
parties’ circumstances since the last court order. . . .
[General Statutes §] 46b-215b (c) mandates that the
guidelines shall be considered in addition to and not
in lieu of the criteria for such awards established in
[§§] 46b-84 [and] 46b-86 . . . . Specifically, § 46b-84
(d) stipulates that the court shall consider the age,
health, station, occupation, earning capacity, amount
and sources of income, estate, vocational skills and
employability of each of the parents, and the age, health,
station, occupation, educational status and expectation,
amount and sources of income, vocational skills,
employability, estate and needs of the child.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) Tomlinson v. Tomlinson, supra, 305 Conn.
559.
In the present case, because the defendant’s unallo-
cated support obligation was modified by the parties’
2014 agreement, the defendant was required to demon-
strate, and did demonstrate; see part I of this opinion;
a substantial change in circumstances that had arisen
subsequent to that modification.15 See Malpeso v. Mal-
peso, 165 Conn. App. 151, 169, 138 A.3d 1069 (2016) (‘‘[i]t
is . . . well established that when a party, pursuant
to § 46b-86, seeks a postjudgment modification of a
dissolution decree that earlier had been modified, he
or she must demonstrate that a substantial change in
circumstances has arisen subsequent to the entry of
the earlier modification’’ (emphasis omitted; internal
quotation marks omitted)). Our review of the file
reveals that the trial court, in fact, had before it materi-
als to assist it in determining the child support portion
of the unallocated order, as modified by the parties’
2014 agreement. Specifically, the court had on file finan-
cial affidavits filed by both the plaintiff and the defen-
dant at the time of the 2014 agreement and a child
support guidelines worksheet prepared by the defen-
dant and submitted in connection with the 2014 agree-
ment.
On remand, the court should unbundle the child sup-
port from the unallocated alimony and child support.
See Ross v. Ross, supra, 200 Conn. App. 738 (failure
to unbundle child support and alimony awards from
unallocated order and failure to apply child support
guidelines required reversal and remand for further pro-
ceedings). First, the court must determine the parties’
net weekly income with the assistance of the 2014 finan-
cial affidavits. See Malpeso v. Malpeso, supra, 165 Conn.
App. 171. Second, the court must calculate the presump-
tive support amount for the two children who, at that
time, were minors, using the 2005 Child Support and
Arrearage Guidelines, which were the guidelines in
effect at the time of the parties’ 2014 agreement. Id.
Third, the court must also ascertain the intent of the
parties because the 2014 agreement was not clear as
to how the $900 weekly sum was to be divided.16 See
id., 172 (‘‘[b]ecause support agreements that are not in
accordance with the financial dictates of the guidelines
are not enforceable unless one of the guidelines’ devia-
tion criteria is present, such as when the terms of the
agreement are in the best interest of the child . . . the
court must determine what was intended to be child
support within the unallocated alimony and child sup-
port order to ensure the agreement did not run afoul
of the guidelines’’ (citation omitted; internal quotation
marks omitted)).17 Finally, the court must consider the
newly determined 2014 child support award against the
parties’ current financial circumstances. Additionally,
we note that, due to the passage of time since the trial
court initially addressed the defendant’s request for
modification, reconsideration of the parties’ present cir-
cumstances is necessary. See Tomlinson v. Tomlinson,
supra, 305 Conn. 561.
III
The defendant’s remaining two claims on appeal are
interrelated, and we address them together. The defen-
dant claims that the court improperly denied his motion
for modification of the alimony component of his unal-
located support obligation because the court interpre-
ted the unallocated support provision of the separation
agreement as nonmodifiable and disallowed the parties’
older child from testifying, while concurrently ruling
the defendant’s witness not credible. We agree with the
defendant that the court abused its discretion.
We first set forth relevant principles of law with
respect to the modification of alimony on the basis of
cohabitation. ‘‘Our Supreme Court has allowed a party
obligated to pay alimony to request, pursuant to § 46b-
86 (b), that alimony be suspended, reduced, or termi-
nated in the event of cohabitation in cases where a
dissolution judgment requires payment of alimony, but
contains no provision regarding the effect of cohabita-
tion on the obligation to pay alimony. . . . This court,
however, has held that, because the provisions in an
incorporated separation agreement prevail over § 46b-
86 (b), if the incorporated separation agreement limits
modification of the amount or duration of alimony, and
does not make an exception for modification in the
event of cohabitation, the court does not have access to
its remedial powers pursuant to § 46b-86 (b).’’ (Citation
omitted.) Fazio v. Fazio, 162 Conn. App. 236, 249–50,
131 A.3d 1162, cert. denied, 320 Conn. 922, 132 A.3d
1095 (2016).
‘‘[U]nder § 46b-86 (b), a finding of cohabitation
requires that (1) the alimony recipient was living with
another person and (2) the living arrangement caused
a change of circumstances so as to alter the financial
needs of the alimony recipient. . . . Pursuant to § 46b-
86 (b), the nonmarital union must be one with attendant
financial consequences before the trial court may alter
an award of alimony. . . . The change in the need of
the alimony recipient need not be substantial . . .
[but] the difference must be measurable in some way
. . . . [T]he court must have the ability to compare the
plaintiff’s financial needs at different points in time to
determine whether those needs either have increased
or decreased over time.’’ (Citations omitted; internal
quotation marks omitted.) Murphy v. Murphy, 181
Conn. App. 716, 722, 188 A.3d 144 (2018).
The following additional procedural history is rele-
vant to resolving this claim. During the hearing, the
court was under the misapprehension that the separa-
tion agreement precluded the termination of alimony,
including on the basis of cohabitation, until the death
of either party.18 Specifically, in response to the defen-
dant’s stated concern that the plaintiff ‘‘will continue
to collect child support as unallocated as . . . long as
. . . she’s breathing,’’ the court stated, ‘‘that’s what you
agreed to. You agreed to that.’’ The court continued:
‘‘You didn’t agree to terminate, you agreed to modify
in the event certain events occurred. So, you didn’t—
and—and it did not include cohabitation either, by the
way. It only included in the event of the death of either
party it shall terminate. That’s what you agreed to. Very
clear, it’s not ambiguous at all to me.’’
The court additionally stated: ‘‘I will hear you and I
will hear from your investigator, but the fact that she’s
cohabitating is not a grounds to terminate the alimony
based on your agreement, based upon the judgment
of 2010.’’
The defendant alerted the court to his understanding
that cohabitation may form a basis for the termination
of alimony unless expressly barred by the agreement
and requested permission to submit a memorandum of
law on that point, which the court permitted. In his
memorandum of law, the defendant argued that
because the parties’ separation agreement did not pre-
clude modification of the unallocated support obliga-
tion, § 46b-86 (b) permits the termination of alimony
upon a finding of cohabitation.
At the end of the hearing, the defendant returned to an
issue he had identified at the beginning of the hearing,
which was that he wished to have the parties’ eighteen
year old son, who was present in court throughout the
hearing, testify in support of his claim that the plaintiff
was cohabitating. In the middle of the hearing, the court
expressed its disinclination toward the parties’ son tes-
tifying, stating: ‘‘[E]ven if you had your child come in,
and I don’t like to bring them in, because unless it’s
really necessary, and I don’t think it is, to be candid, I
don’t like to see a—any kid testify and pick sides in a
dispute between his parents because until either of you
die you will be his parents.’’ At the conclusion of the
private investigator’s testimony, the court asked the
defendant whether he had anything else, and the follow-
ing colloquy occurred:
‘‘[The Defendant]: Your Honor, I just—I’d just say
that I wholeheartedly agree that I’d—I would not—I
would not want to have my son as a witness unless
Your Honor feels that—
‘‘The Court: I don’t need his testimony.
‘‘[The Defendant]: Okay. Great.’’
In its order denying the defendant’s motion for modi-
fication, the court stated that the defendant had failed
to ‘‘provide the court satisfactory evidence of cohabita-
tion,’’ and found the private investigator’s testimony
‘‘not credible, also insufficient to prove cohabitation as
required by law.’’
Under the circumstances of this case, we are per-
suaded that the trial court misapplied the law at the
time of the hearing and that its misapplication of the
law resulted in an abuse of its discretion. First, contrary
to the court’s remarks during the hearing, the separation
agreement at issue in this matter did not provide that the
unallocated support obligation was ‘‘nonmodifiable’’ as
to amount or term. Section 46b-86 (a) provides in rele-
vant part: ‘‘Unless and to the extent that the decree
precludes modification, any final order for the periodic
payment of permanent alimony or 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 . . . .’’
(Emphasis added.); see also Tomlinson v. Tomlinson,
supra, 305 Conn. 548 (‘‘unambiguous provisions pre-
cluding modification of alimony are enforceable pursu-
ant to the language of § 46b-86 (a)’’). The separation
agreement provision stating that ‘‘[s]aid unallocated ali-
mony and child support shall end on the death of either
party’’ does not constitute an unambiguous nonmodifi-
cation provision,19 nor does it preclude the termination
of alimony in the event of cohabitation. Cf. Gabriel v.
Gabriel, supra, 324 Conn. 343 (agreement at issue stated
that unallocated alimony and support payments were
for defendant’s support and were nonmodifiable by
defendant as to both amount and duration but were
modifiable by plaintiff upon substantial change in cir-
cumstances, not including defendant’s cohabitation or
her earnings up to $100,000). Moreover, as noted pre-
viously, the 2014 agreement removed the provision in
Article IV that prohibited the defendant from seeking
a downward modification in his support payment unless
the plaintiff’s earnings exceeded $50,000 per year.
Accordingly, the court’s remarks during the hearing
regarding modification reflect an erroneous under-
standing of the law.
Second, it is difficult for this court to reconcile the
court’s handling of the defendant’s proffer of his son’s
limited testimony with the court’s treatment of this
issue in its written order. Having already incorrectly
expressed that cohabitation could not form a basis for
modification of alimony, the court, when the defendant
revisited the subject of his son testifying as to cohabita-
tion, did not preclude the testimony on evidentiary
grounds, but rather stated: ‘‘I don’t need his testimony.’’
The defendant essentially was misled into forgoing his
opportunity to present the additional evidence as to
cohabitation, which is important in light of the court’s
written decision, in which it determined that the defen-
dant had failed to provide satisfactory evidence of
cohabitation. Additionally, although we are mindful that
we must ‘‘defer to the trier of fact’s assessment of credi-
bility’’; (internal quotation marks omitted) Nuzzi v.
Nuzzi, 164 Conn. App. 751, 773, 138 A.3d 979 (2016),
cert. granted, 323 Conn. 902, 150 A.3d 684 (2016) (appeal
withdrawn October 12, 2017); we are confounded by
the court’s apparent wholesale discrediting of the
uncontroverted testimony of the licensed private inves-
tigator. The court did not identify any particular aspects
of Drescher’s testimony that it specifically discredited,
nor did it offer any explanation of its determination
that the testimony as a whole was not credible.
Finally, it is difficult for this court to comprehend
the significance of the court’s finding that ‘‘[e]qually as
important is the fact that the judgment file sought to
be modified has consistently been unallocated alimony
and child support throughout the long history of hear-
ings.’’ As described previously in this opinion, our appel-
late courts consistently and clearly have set forth the
steps necessary to modify the components of an unallo-
cated support order. Under the totality of the circum-
stances in this case, we are convinced that the court
applied the wrong standard of law and, consequently,
abused its discretion in denying the defendant’s motion
for modification of the alimony component of his unal-
located support obligation and that the defendant is
entitled to a new hearing.
The judgment is reversed with respect to the postdis-
solution order denying modification of the unallocated
alimony and child support order and the case is
remanded for a new hearing on the defendant’s motion
for modification; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
We address the claims in a different order from that in which they were
briefed, and we address the third and fourth claims together because they
are interrelated.
2
On September 20, 2023, this court ordered the plaintiff to file her overdue
brief on or before October 4, 2023. The plaintiff failed to file a brief as
ordered. This court granted the defendant’s request to waive oral argument.
We, therefore, have considered this appeal on the basis of the defendant’s
brief, the appendix, and the record. See Marino v. Marino, 222 Conn. App.
902, 903 n.1, 302 A.3d 953 (2023).
3
The defendant also requested other modifications in his motion. The
court denied the defendant’s motion in its entirety. The defendant’s appeal
is limited to the issues of child support and alimony.
4
The parties’ children were born in November, 2003, and August, 2005.
5
The parties stipulated to an arrearage of $43,090, and the 2014 agreement
provided that the defendant would pay $200 weekly toward that arrearage.
6
The defendant also alleged in his motion for modification that ‘‘[t]here
has been a substantial change in circumstances since the entry of the last
order by the court, on September 29, 2017.’’ In December, 2015, the defendant
had filed a prior motion for modification, seeking, inter alia, that his unallo-
cated alimony and child support obligation be modified. After several hear-
ings, on September 29, 2017, the court, Wenzel, J., granted in part and denied
in part the motion. The court denied the defendant’s requested modification
of his unallocated support obligation, stating: ‘‘The defendant admits there
is no claim for any substantial change in circumstance in the motion and
the court finds there was no sufficient evidence of such in any event.’’ De
Almeida-Kennedy v. Kennedy, 188 Conn. App. 670, 673 n.2, 205 A.3d 704,
cert. denied, 332 Conn. 909, 210 A.3d 566 (2019). On appeal, this court
concluded that the court did not abuse its discretion in denying the requested
modification. Id., 682. Because the court’s order of September 29, 2017, did
not modify the defendant’s unallocated support obligation, the operative
date for the determination of a substantial change in circumstances remains
the date of the 2014 agreement. See Demartino v. Demartino, 79 Conn.
App. 488, 495, 830 A.2d 394 (2003).
7
‘‘[T]he plaintiff filed a memorandum of law in support of her motion to
dismiss, which was accompanied by multiple exhibits, including a copy of
the individual educational program for her minor son prepared by Williamson
County Schools in Franklin, Tennessee for the period beginning May 7, 2018,
and an electrical bill dated June 5, 2018, that lists the plaintiff as the account
holder for a ‘service address’ located in Franklin, Tennessee. In addition,
the plaintiff submitted an affidavit that recited certain details regarding her
relocation to Tennessee.’’ De Almeida-Kennedy v. Kennedy, supra, 207
Conn. App. 256.
8
The clerk stated on the record that notice of the hearing had been
provided to the plaintiff to a post office box in Thompson Station, Tennessee,
which was the address on file in her appearance. The court found that the
plaintiff was provided notice of the hearing.
The court denied three motions filed by the plaintiff for failure to prose-
cute.
9
Drescher testified that she has been licensed as a private investigator
for twenty years and is also a licensed private investigation agency owner.
She testified that she was required to pass an examination in order to
become licensed. She further testified that she participates in continuing
education in her field and has served as a guest speaker for the Tennessee
Bar Association.
10
The defendant filed a motion for articulation, which the trial court
summarily denied. Although the defendant attempted to file a motion for
review with this court, it was returned by the Office of the Appellate Clerk
for noncompliance with the rules of appellate procedure, and the defendant
did not refile it thereafter.
11
The following colloquy occurred:
‘‘[The Defendant]: Once my ex-wife started cohabitating, that was a change
in circumstance, and then I’ve had further changes in circumstance. In
November of last year my son, my eldest son moved in with me. Since
November of last year, he’s been living with us.
‘‘The Court: November of what year?
‘‘[The Defendant]: November, 2021.
‘‘The Court: How old’s your son now?
‘‘[The Defendant]: Eighteen.
‘‘The Court: As of when?
‘‘[The Defendant]: November . . . 2021.
‘‘The Court: So he turned 18.
‘‘[The Defendant]: Yes.
‘‘The Court: And how old is the younger one?
‘‘[The Defendant]: Sixteen.
‘‘The Court: Who’s the sixteen year old living with?
‘‘[The Defendant]: His mom.
‘‘The Court: All right. Please continue.’’
12
The court also ‘‘found’’ that the defendant had moved for modification
with unclean hands on the basis of his failure to comply with the support
orders. ‘‘The doctrine of unclean hands expresses the principle that where
a [party] seeks equitable relief, he must show that his conduct has been
fair, equitable and honest as to the particular controversy in issue. . . . For
a complainant to show that he is entitled to the benefit of equity he must
establish that he comes into court with clean hands. . . . The clean hands
doctrine is applied not for the protections of the parties but for the protection
of the court. . . . It is applied . . . for the advancement of right and justice.
. . . The party seeking to invoke the clean hands doctrine to bar equitable
relief must show that his opponent engaged in wilful misconduct with regard
to the matter in litigation.’’ (Internal quotation marks omitted.) Nuzzi v.
Nuzzi, 164 Conn. App. 751, 763–64, 138 A.3d 979, cert. granted, 323 Conn.
902, 150 A.3d 684 (2016) (appeal withdrawn October 12, 2017).
We need not address the court’s reference to the doctrine of unclean
hands because it appears to be of no consequence given that the court
decided the defendant’s motion to modify on the basis of its conclusions
that he failed to demonstrate a substantial change in circumstances and
failed to prove cohabitation.
13
In his appellate brief, the defendant relies on General Statutes § 46b-
224, which provides in relevant part: ‘‘Whenever . . . the Superior Court,
in a family relations matter . . . orders a change or transfer of the . . .
custody of a child who is the subject of a preexisting support order, and
the court makes no finding with respect to such support order, such . . .
custody order shall operate to: (1) Suspend the support order if . . . custody
is transferred to the obligor under the support order . . . .’’ We need not
address his argument pursuant to § 46b-224 because we conclude that the
court’s determination that the undisputed change in residence of the parties’
older child did not amount to a substantial change in circumstances is
clearly erroneous.
14
In Tomlinson v. Tomlinson, supra, 305 Conn. 543, the parties’ separation
agreement provided that the unallocated alimony and child support was
nonmodifiable as to the amount and term of payments. Our Supreme Court
determined that such an order was modifiable upon a change in custody
because General Statutes § 46b-224 provides for the modification of child
support upon a change of custody. Id., 549–50.
Although the present case differs from Tomlinson in that the present
unallocated order was not, by its terms, nonmodifiable; see part III of this
opinion; the same unbundling requirements apply. See Ross v. Ross, supra,
200 Conn. App. 731 n.9.
15
The defendant maintains in his appellate brief that ‘‘the trial court did
not have the discretion not to make a determination of the amount of child
support that would have applied per the guidelines on August 2, 2010,
calculate the payments made toward that amount, and declare the amount
past due, if any, prior to addressing the modifiability or termination of
aspects of the unallocated order.’’ We are not persuaded that the court
was required to make a determination as of August 2, 2010, because the
defendant’s unallocated support obligation was modified by the parties’ 2014
agreement, rendering 2014 the operative date.
16
If the plaintiff again fails to participate in the hearing on remand, the
court may consider the materials in its file together with the defendant’s
presentation of evidence.
17
In Tomlinson, our Supreme Court noted that ‘‘the trial court improperly
may have relied solely on the presumptive guidelines amount in calculating
the portion attributable to child support at the time of dissolution. Although
there is a rebuttable presumption that the figure arrived at under the guide-
lines is the proper amount of child support; see General Statutes § 46b-
215b (a); the trial court at the original dissolution proceeding in 2005 had
discretion to deviate from such amount upon consideration of factors, such
as the coordination of total family support, shared physical custody, extraor-
dinary disparity in parental income and the best interests of the children.
Although it is reasonable to conclude that the trial court found that the
unallocated order provided adequate support when it incorporated the par-
ties’ separation agreement into the judgment, it does not follow necessarily
that the child support portion was equivalent to the presumptive guidelines
amount.’’ Tomlinson v. Tomlinson, supra, 305 Conn. 560–61.
18
The following colloquy occurred:
‘‘The Court: Said [provision reads that] unallocated alimony and child
support shall end on the death of either party. You’re aware of that?
‘‘[The Defendant]: Yes.
‘‘The Court: Okay. And no one’s died yet, right, thank God?
‘‘[The Defendant]: Right.
‘‘The Court: Right. And then it goes on to talk about other things that are
not really relevant to this proceeding. So, I just want to make sure that that
is what you agreed to.
‘‘[The Defendant]: Yes. And I—I want to point out to the court that our
agreement was nothing—the shall end on the death of either party, was
done for tax reasons.
‘‘The Court: Doesn’t matter why it was done. It was an agreement.
‘‘[The Defendant]: Yes.’’
The court continued: ‘‘The agreement is in writing for a good reason. The
agreement is signed and the judges, myself included, we always ask the
parties about the agreement. Do you understand the agreement, are you
voluntarily entering, do you have any questions about the agreement, are
you satisfied with the legal representation you have received by the attorney
of your choice? So, just keep that in mind because we can’t go back, you
know, to 2010 with what you’re presenting me so far. I haven’t finished
hearing you, and I don’t know if I need to hear from your children either,
because I don’t like to hear from children in divorce cases unless it’s really
necessary, and so far the only thing he can help me with is where [the
plaintiff is] located and maybe her lifestyle and maybe cohabitation. And
you mentioned that you have an investigator that has testimony that—that
the investigator’s willing to offer. That’s all well and good, but you made
these agreements with your ex-wife and with legal advice, that multiplies
the burden you have to modify that. Just want to be very clear here.’’
19
We note that other provisions of the parties’ separation agreement rein-
force our conclusion that the separation agreement cannot logically be read
to require nonmodifiable alimony payments until the death of either party.
For example, § 7.2 of the separation agreement, providing that the plaintiff
may claim the minor children as dependents for purposes of the tax exemp-
tion, provides in relevant part: ‘‘In the event the court should modify the
unallocated alimony and support, this provision may be modified.’’ Addition-
ally, § 9.3 of the separation agreement requires the defendant to maintain
a policy of life insurance with a face value of $500,000, ‘‘payable to the
[plaintiff] for so long as he shall have an alimony obligation.’’