Date: 12-10-2013

Case Style: Marianne Olson v. Fusaini Mohammadu

Case Number: SC 18963

Judge: Rogers

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Campbell D. Barrett, with whom were Jon T.
Kukucka, and, on the brief, Kathleen M. Grover, for the
appellee (plaintiff).

Defendant's Attorney: John F. Morris, for the appellant (defendant).

Description: The question that we must resolve in
this appeal is whether a trial court may properly deny
a motion for modification of alimony and child support
solely on the basis that a party’s voluntary actions gave
rise to the alleged substantial change in circumstances
warranting modification. The defendant, Fusaini
Mohammadu, appealed to the Appellate Court from the
judgment of the trial court denying his postjudgment
motion to modify his alimony and child support obligations
to the plaintiff, Marianne Olson. Olson v. Mohammadu,
134 Conn. App. 252, 39 A.3d 744 (2012). The
Appellate Court affirmed the judgment of the trial court.
Id., 262. This court granted certification to appeal on
the following issue: ‘‘Did the Appellate Court properly
conclude that the defendant was not entitled to a modification
of his alimony and child support obligations
because his voluntary return to Connecticut to be closer
to his son was an ‘unacceptable reason’ for his
decreased income under Sanchione v. Sanchione, 173
Conn. 397, 378 A.2d 522 (1977)?’’ Olson v. Mohammadu,
304 Conn. 930, 42 A.3d 391 (2012). We conclude that it
did not. Accordingly, we reverse the judgment of the
Appellate Court.
The following facts and procedural history are set
forth in the Appellate 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 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. . . . 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.’’
(Footnote omitted.) Olson v. Mohammadu, supra, 134
Conn. App. 254.
The record reveals the following additional facts and
procedural history. 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 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.1 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.’’ While the court
acknowledged that the defendant’s ‘‘stated motivation
might have been a good parental decision,’’ the court
concluded that the relocation was ‘‘a decision that
ignored the realities of his financial obligation as set
forth in the judgment issued just months earlier.’’ The
defendant appealed from the trial court’s decision to
the Appellate Court.
While the appeal was pending at the Appellate Court,
the defendant filed a motion for articulation of the trial
court’s decision. The defendant sought articulation on
the following three issues: ‘‘whether the trial court considered
the fact of the [d]efendant’s relocation to Connecticut
to be nearer to his son to be a substantial
change in circumstances’’; ‘‘whether the trial court considered
the reduction of the [d]efendant’s earnings upon
his relocation to be a substantial change in circumstances’’;
and ‘‘the figures used by the trial court to
determine the relevant incomes of the parties.’’ 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 added.) Relying on Sanchione
v. Sanchione, supra, 173 Conn. 397, the court
decided ‘‘not to treat [the defendant’s] relocation and
the change in income that resulted from that voluntary
decision as a significant change in circumstances.’’
(Emphasis added.) The court declined to articulate how
it calculated the incomes of the parties, stating that
‘‘its rulings on the first two questions ma[d]e the third
irrelevant to the decision.’’
Thereafter, the Appellate Court affirmed the judgment
of the trial court. The Appellate Court concluded
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, supra, 134 Conn. App. 261. The
Appellate Court reasoned that ‘‘[although] the [trial]
court noted that there might have been a good parental
motivation underlying the defendant’s relocation, the
court was correct not to reach the defendant’s motivation
in its determination that the defendant failed to
prove a substantial change in circumstances.’’ Id., 260–
61. According to the Appellate Court, evidence of the
defendant’s stated motivation in relocating to Connecticut
would be relevant only if he had made a threshold
showing of a substantial change in circumstances. Id.,
261 n.10. This appeal followed.
On appeal to this court, the defendant claims that
the Appellate Court improperly concluded that his voluntary
action in relocating to Connecticut, regardless
of his stated motivations, precluded him from establishing
a substantial change in circumstances warranting
modification of his alimony and child support obligations.
The defendant contends that the Appellate Court
relied on a misconception of governing law under Sanchione.
Specifically, he contends that an inability to pay
that is ‘‘brought about by the defendant’s own fault’’;
Sanchione v. Sanchione, supra, 173 Conn. 407; is not
necessarily synonymous with an inability to pay brought
about by voluntary conduct. Therefore, he posits that
the voluntary action giving rise to an inability to pay
should not foreclose a threshold showing of a substantial
change in circumstances. The defendant also contends
that if we agree with his claim that the trial court
improperly denied his motion for modification because
of his voluntary relocation to Connecticut, we should
reverse the judgment of the Appellate Court and the
case should be remanded to the trial court for a new
hearing. We agree 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. We also
agree that the case should be remanded to the trial
court for a new hearing.
We begin our analysis with the standard of review.
‘‘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.’’ (Citation omitted; internal quotation marks
omitted.) Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).
‘‘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.’’ (Internal quotation marks
omitted.) Williams v. Williams, 276 Conn. 491, 497, 886
A.2d 817 (2005). Nevertheless, we may reverse a trial
court’s ruling on a modification motion if the trial court
applied the wrong standard of law. Id.; see also Morris
v. Morris, 262 Conn. 299, 305, 811 A.2d 1283 (2003);
Borkowski v. Borkowski, 228 Conn. 729, 740, 638 A.2d
1060 (1994).2
‘‘[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),3 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.’’ (Footnote added; internal quotation
marks omitted.) Simms v. Simms, 283 Conn. 494, 502,
927 A.2d 894 (2007). ‘‘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 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 modification of the existing
order.’’ Borkowski v. Borkowski, supra, 228 Conn.
737–38.
‘‘Once a trial court determines that there has been a
substantial change in the financial circumstances of
one of the parties, the same criteria that determine an
initial award of alimony and support are relevant to the
question of modification.’’ Hardisty v. Hardisty, 183
Conn. 253, 258–59, 439 A.2d 307 (1981). ‘‘More specifically,
these criteria, outlined in General Statutes § 46b-
82,4 require the court to consider the needs and financial
resources of each of the parties and their children, as
well as such factors as the causes for the dissolution
of the marriage and the age, health, station, occupation,
employability and amount and sources of income of the
parties.’’ (Footnote altered.) Borkowski v. Borkowski,
supra, 228 Conn. 736. ‘‘The 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 circumstances or conditions of the
parties.’’ (Citations omitted.) Id., 738.
Thus, ‘‘[w]hen 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
§ 46b-82 criteria, make an order for modification. . . .
The court has the authority to issue a modification only
if it conforms the order to the distinct and definite
changes in the circumstances of the parties.’’ (Emphasis
omitted; internal quotation marks omitted.) Gervais v.
Gervais, 91 Conn. App. 840, 850–51, 882 A.2d 731, cert.
denied, 276 Conn. 919, 888 A.2d 88 (2005).
Two additional legal principles are relevant to our
disposition of this appeal. First, in Borkowski v. Borkowski,
supra, 228 Conn. 737–38, this court clarified
the two step method by which a trial court should
proceed with a motion brought pursuant to § 46b-86.
‘‘By so bifurcating the trial court’s inquiry . . . we did
not mean to suggest that a trial court’s determination
of whether a substantial change in circumstances has
occurred, and its determination to modify alimony, are
two completely separate inquiries. . . . After the evidence
introduced in support of the substantial change
in circumstances establishes the threshold predicate
for the trial court’s ability to entertain a motion for
modification, however, it also naturally comes into play
in the trial court’s structuring of the modification
orders.’’ (Citation omitted.) Id., 737. Second, in Sanchione
v. Sanchione, supra, 173 Conn. 407, this court concluded
that in order to meet the threshold of a
substantial change in circumstances, the alleged inability
to pay ‘‘must be excusable and not brought about
by the defendant’s own fault.’’
Turning to the facts of this case, the Appellate Court
rejected the defendant’s argument that the trial court
should have considered the defendant’s motivations in
relocating to Connecticut rather than deny the motion
solely on the basis that his relocation was voluntary.
Relying on this court’s decision in Borkowski, the
Appellate Court concluded that evidence of the ‘‘motivation
behind such a voluntary action would only be relevant
if [a threshold showing of a substantial change in
circumstances] had been met.’’ Olson v. Mohammadu,
supra, 134 Conn. App. 261 n.10. The Appellate Court
determined that this court’s holding in Sanchione reasonably
supported the trial court’s conclusion that ‘‘a
change in income resulting from a voluntary decision
does not constitute a substantial change in circumstances.’’
Id., 261.
We disagree with the Appellate Court’s analysis. In
Borkowski v. Borkowski, supra, 228 Conn. 741, this
court held that in determining the threshold inquiry of
a substantial change in circumstances, the trial court
is limited to considering events arising after the dissolution
decree or the most recent modification thereof.
In that case, this court concluded that the trial court
properly admitted evidence concerning the cause of the
plaintiff’s alleged substantial change in circumstances
as relevant to both parts of the court’s modification
inquiry. Id., 743.5 Accordingly, this court clarified in
Borkowski that the two parts of the trial court’s modification
inquiry, which include the threshold determination
of a substantial change in circumstances and the
subsequent determination of whether to modify alimony
or child support, are not entirely separate inquiries.
Id., 737. Indeed, Borkowski contemplates that
‘‘evidence introduced in support of the substantial
change in circumstances . . . naturally comes into
play in the trial court’s structuring of the modification
orders.’’ Id. Thus, Borkowski does not support the
Appellate Court’s conclusion that evidence of the motivation
behind the defendant’s voluntary action would
become relevant only had the court found a substantial
change in circumstances.
Moreover, the notion that a court cannot consider
the reason underlying an alleged substantial change
in circumstances in determining the threshold inquiry
under a § 46b-86 motion for modification is at odds
with the decision in Sanchione v. Sanchione, supra,
173 Conn. 397. In Sanchione, this court addressed the
issue of whether the trial court properly granted a prospective
reduction in alimony where the court found
only that the financial affidavits were true and that there
had been a ‘‘change of circumstances re the defendant’s
ability to pay . . . .’’ (Internal quotation marks omitted.)
Id., 407. This court concluded that the trial court’s
findings on the affidavits were alone inadequate to support
the modification without any record that the court
had evaluated the circumstances surrounding the defendant’s
claimed inability to pay. Id. Accordingly, this
court set aside the modification and ordered a new
hearing. Id.
Under Sanchione, an ‘‘ ‘[i]nability to pay’ does not
automatically entitle a party to a decrease of an alimony
order. It must be excusable and not brought about by
the defendant’s own fault.’’ Id. In order to make a determination
on the threshold inquiry, Sanchione requires
that the trial court ascertain whether the alleged substantial
change in circumstances is the result of the
moving party’s ‘‘own extravagance, neglect, misconduct
or other unacceptable reason . . . .’’6 Id. Simply put,
Sanchione ‘‘stand[s] for the principle that if a party’s
culpable conduct causes an inability to pay an alimony
award [or child support obligation], then the threshold
question of whether a substantial change of circumstances
exists is not met.’’ (Emphasis added.) Schade
v. Schade, 110 Conn. App. 57, 65 n.6, 954 A.2d 846, cert.
denied, 289 Conn. 945, 959 A.2d 1009 (2008).7
The plaintiff correctly conceded at oral argument
before this court that Sanchione does not state that
voluntariness is an absolute bar to establishing a substantial
change in circumstances. While the plaintiff
acknowledged that this court in Sanchione instead concluded
that fault is a bar to modification, she argued
that fault has evolved through our Appellate Court’s
case law to encompass voluntariness. The plaintiff is
correct that a review of the Appellate Court’s case law in
the three decades since Sanchione was decided reveals
that the inquiry in that case has occasionally been
shifted into a voluntariness based analysis.8 To the
extent that there is a split of Appellate Court authority
that diverges on whether the touchstone of the threshold
modification inquiry is culpability or voluntariness,9
we take this opportunity to clarify the holding in Sanchione
and the two part inquiry for a motion brought
under § 46b-86.
In Sanchione v. Sanchione, supra, 173 Conn. 407, this
court held that culpable conduct precludes a threshold
showing of a substantial change in circumstances on a
motion for modification. Indeed, the word ‘‘voluntary’’
does not appear in Sanchione precisely because the
voluntariness of one’s action is of limited utility in ascertaining
fault. Nearly every human action is voluntary,
but not every voluntary action is fault worthy. The
words used by this court in Sanchione—‘‘fault . . .
extravagance, neglect, misconduct or other unacceptable
reason’’—underscore that the crux of the inquiry
is culpability and not voluntariness. Id. An analysis that
begins and ends with voluntariness, as was applied in
the present case, renders meaningless the critical distinction
enunciated in Sanchione between acceptable
and ‘‘unacceptable reason[s]’’ for an alleged substantial
change in circumstances. Id. A court simply cannot
engage in the fault based inquiry of Sanchione without
ascertaining the reasons motivating one’s voluntary
actions.10
The record in the present case reflects that the trial
court did not make any factual findings regarding the
reasons motivating the defendant’s relocation from
Florida to Connecticut. Although the defendant testified
that he relocated to Connecticut in order to have a
more meaningful relationship with his son; see footnote
1 of this opinion; the trial court did not consider the
defendant’s motivations in its analysis.11 Indeed, the
trial court’s entire decision was predicated on its finding
that ‘‘the move was a voluntary action on the part of
the defendant.’’ Instead, the 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, consistent with Sanchione,
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 . . . .’’ (Emphasis added.) Sanchione
v. Sanchione, supra, 173 Conn. 407. 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.
The plaintiff makes two arguments in support of her
claim that the trial court properly denied the defendant’s
motion for modification. First, the plaintiff argues
that the court did find that the defendant’s voluntary
decision to relocate to Connecticut was culpable. Specifically,
the plaintiff suggests that the court found that
the defendant’s voluntary conduct in the face of recent
financial orders was inappropriate, regardless of his
stated motivation.12 Alternatively, the plaintiff contends
that the trial court’s findings regarding the defendant’s
financial circumstances sufficiently support the court’s
determination that the defendant failed to establish a
substantial change in circumstances. We are not persuaded
by the plaintiff’s first argument and we decline
to reach the merits of the plaintiff’s alternative
argument.
As a preliminary matter, we note that our resolution
of the plaintiff’s claims requires us to interpret the trial
court’s memorandum of decision and subsequent articulation.
‘‘The interpretation of a trial court’s judgment
presents a question of law over which our review is
plenary. . . . As a general rule, judgments are to be
construed in the same fashion as other written instruments.
. . . The determinative factor is the intention
of the court as gathered from all parts of the judgment.
. . . Effect must be given to that which is clearly
implied as well as to that which is expressed. . . . The
judgment should admit of a consistent construction as
a whole.’’ (Citations omitted; internal quotation marks
omitted.) Sosin v. Sosin, 300 Conn. 205, 217–18, 14 A.3d
307 (2011); see also Fisher v. Big Y Foods, Inc., 298
Conn. 414, 424–25, 3 A.3d 919 (2010) (‘‘an opinion must
be read as a whole without particular portions read in
isolation, to discern the parameters of its holding’’). If
there is ambiguity in a court’s memorandum of decision,
we look to the articulations that the court provides.
See, e.g., Miller v. Kirshner, 225 Conn. 185, 208, 621 A.2d
1326 (1993) (‘‘[a]n articulation is appropriate [when]
the trial court’s decision contains some ambiguity or
deficiency reasonably susceptible of clarification’’
[internal quotation marks omitted]).
With these principles in mind, we turn to the language
of the memorandum of decision and the articulation in
the present case. Reading the memorandum as a whole
together with the subsequent articulation, we conclude
that the trial court’s decision was clearly predicated on
voluntariness, not culpable conduct. Although the trial
court tangentially refers to the defendant’s decision to
relocate as one that ‘‘ignored the realities of his financial
obligation[s],’’13 this observation, read in the context of
the memorandum of decision and the articulation, does
not amount to a finding of culpability under this court’s
precedent in Sanchione.
In the present case, the trial court undertook no
inquiry to ascertain whether the alleged substantial
change in circumstances ‘‘[was] excusable and not
brought about by the defendant’s own fault.’’ Sanchione
v. Sanchione, supra, 173 Conn. 407. Although the trial
court opined that one consequence of the defendant’s
relocation was that it ignored the realities of the recent
financial orders, the court did not find that the defendant
relocated in order to avoid his financial obligations.
Indeed, the trial court did not find that any of
the fault based reasons set forth in Sanchione applied
in this case. Instead, the court denied the motion to
modify for the singular reason that the defendant voluntarily
relocated to Connecticut.14
To summarize our holding in this case, a court that
is confronted with a motion for modification under
§ 46b-86 (a) must first determine whether the moving
party has established a substantial change in circumstances.
In making this threshold determination, if a
party’s voluntary action gives rise to the alleged substantial
change in circumstances warranting modification,
the court must assess the motivations underlying
the voluntary conduct in order to determine whether
there is culpable conduct foreclosing a threshold determination
of a substantial change in circumstances. If
the court finds a substantial change in circumstances,
then the court may determine what modification, if any,
is appropriate in light of the changed circumstances.
Accordingly, in the present case we conclude that
the trial court improperly denied the defendant’s motion
for modification solely on the basis that the defendant’s
voluntary relocation to Connecticut gave rise to the
alleged substantial change in circumstances warranting
modification of his alimony and child support obligations.
15 As a result, this matter must be remanded to
the trial court for a new hearing on the defendant’s
motion for modification. At the rehearing, the trial court
must determine whether the defendant established a
substantial change in circumstances and, if so, what
modification of alimony or child support, if any, is
appropriate.16
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new hearing on the motion
for modification.
In this opinion the other justices concurred.
1 On direct examination by his attorney, the defendant testified as follows:
‘‘It’s been difficult living in Florida trying to see my son. And I’ve been trying
to work with [the plaintiff] even to get a visitation right like in the summer
time when he’s on vacation to come and spend those times with me, or
when he has school break he can come and spend time with me. But this
time I had requested, [the plaintiff] refused. The only option she gives me
is I had to buy a ticket for both of them together, or I’m not going to see
my son. So it came to a point I cannot even have time to talk to him over
the [tele]phone, so I finally decided, you know, I need to be closer to my
son. And . . . so I moved back.’’
2 In Borkowski v. Borkowski, supra, 228 Conn. 740, this court stated that
‘‘[n]otwithstanding the great deference accorded to the trial court in dissolution
proceedings, a trial court’s ruling on a modification may be reversed
if, in the exercise of its discretion, the trial court applies the wrong standard
of law.’’ (Emphasis added.) To the extent that this court’s reference in
Borkowski to the trial court’s ‘‘exercise of its discretion’’ in any way suggested
that the trial court’s application of the correct standard of law is
discretionary, we take this opportunity to clarify that the trial court has no
discretion in applying the correct standard of law.
3 General Statutes § 46b-86 (a), as amended by No. 13-213, § 4, of the 2013
Public Acts, provides in relevant part: ‘‘Unless and to the extent that the
decree precludes modification, any final order for the periodic payment of
permanent alimony or support, an order for alimony or support pendente
lite or an order requiring either party to maintain life insurance for the other
party or a minor child of the parties 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 . . . . If a court, after hearing,
finds a substantial change in circumstances of either party has occurred,
the court shall determine what modification of alimony, if any, is appropriate,
considering the criteria set forth in section 46b-82 . . . .’’
As for child support orders, ‘‘[§] 46b-86 (a) permits the court to modify
child support orders in two alternative circumstances. Pursuant to this
statute, a court may not modify a child support order unless there is first
either (1) a showing of a substantial change in the circumstances of either
party or (2) a showing that the final order for child support substantially
deviates from the child support guidelines . . . . Both the substantial
change of circumstances and the substantial deviation from child support
guidelines’ provision establish the authority of the trial court to modify
existing child support orders to respond to changed economic conditions.
The first allows the court to modify a support order when the financial
circumstances of the individual parties have changed, regardless of their
prior contemplation of such changes. The second allows the court to modify
child support orders that were once deemed appropriate but no longer seem
equitable in the light of changed social or economic circumstances in the
society as a whole . . . .’’ (Citation omitted; internal quotation marks omitted.)
Weinstein v. Weinstein, 104 Conn. App. 482, 491–92, 934 A.2d 306
(2007).
4 General Statutes § 46b-82 (a), as amended by No. 13-213, § 3, of the 2013
Public Acts, provides in relevant part: ‘‘In determining whether alimony
shall be awarded, and the duration and amount of the award, the court shall
consider the evidence presented by each party and shall consider the length
of the marriage, the causes for the annulment, dissolution of the marriage
or legal separation, the age, health, station, occupation, amount and sources
of income, earning capacity, vocational skills, education, employability,
estate and needs of each of the parties . . . .’’
5 In so holding, this court observed ‘‘no reason why the trial court, in
determining whether alimony should be modified or terminated, should not
be permitted also to consider the causes for a party’s substantial change
of circumstances.’’ Borkowski v. Borkowski, supra, 228 Conn. 743.
Quoting from this passage in Borkowski, the Appellate Court asserted
that only ‘‘after a finding of substantial change, can the court ‘consider
the causes for a party’s substantial change of circumstances.’ ’’ (Emphasis
added.) Olson v. Mohammadu, supra, 134 Conn. App. 259. The Appellate
Court takes the language in Borkowski out of context. In Borkowski, this
court addressed the trial court’s broad equitable powers in fashioning an
appropriate modification order. Ultimately, this court determined that ‘‘the
trial court’s equitable powers to consider any factor appropriate for a just
and equitable modification of the parties’ alimony’’ supported the conclusion
that ‘‘the trial court properly considered the cause of the plaintiff’s [substantial
change in circumstances] in determining to modify the plaintiff’s alimony.’’
Borkowski v. Borkowski, supra, 228 Conn. 744. This court in
Borkowski did not hold that a trial court may never consider the cause of
a party’s substantial change in circumstances under the first part of the
modification inquiry. Rather, this court clarified that the trial court is limited
to considering evidence antecedent to the dissolution decree or the most
recent modification in determining whether there has been a substantial
change in circumstances warranting modification. See id., 740.
6 We emphasize that this fault based principle reinforces the well settled
imperative that a party seeking modification pursuant to § 46b-86 (a) ‘‘demonstrate
that circumstances have changed since the last court order such
that it would be unjust or inequitable to hold either party to it.’’ Borkowski
v. Borkowski, supra, 228 Conn. 737–38. A party whose culpable conduct
forms the sole basis of an alleged substantial change in circumstances will
likely be unable to demonstrate that it would be unjust or inequitable to
maintain the existing alimony or child support orders.
7 In Schade v. Schade, supra, 110 Conn. App. 57, the Appellate Court
affirmed the judgment of the trial court temporarily reducing the defendant’s
alimony obligation but allowing the unpaid balance to accrue weekly, when
‘‘the [trial] court found that the defendant was not actively pursuing the
options available to an individual with his experience and training’’; id., 67;
the defendant ‘‘reveal[ed] an intent to delay present income potential’’;
(internal quotation marks omitted) id., 68; and it was ‘‘clear to the court
that [the defendant was] pacing himself so as to avoid to the extent possible
his obligations for the twelve year alimony payment period to which he
himself had previously committed.’’ (Internal quotation marks omitted.) Id.
8 It appears that a shift in lexicon from ‘‘fault’’ to ‘‘voluntariness’’ may
have originated in Gleason v. Gleason, 16 Conn. App. 134, 546 A.2d 966 (1988),
wherein the Appellate Court reversed the trial court’s decision granting a
modification of alimony when there was ‘‘[no factual] basis for concluding
that the defendant’s employment situation was excusable or beyond his
control.’’ (Emphasis added.) Id., 138. Just prior to introducing the alternative
phrase ‘‘or beyond his control’’; id.; the Appellate Court recited the fault
based principle of Sanchione that ‘‘the inability to pay alimony must be
excusable and not brought about by the defendant’s own fault . . . .’’
Id., 137.
It cannot reasonably be disputed that the phrases ‘‘beyond [one’s] control’’;
id., 138; and ‘‘not brought about by one’s own fault’’; id., 137; carry different
meanings. Conduct that is beyond one’s control, that is, involuntary, is not
brought about by one’s own fault. But the converse is not necessarily true.
Conduct that is within one’s control, that is, voluntary, is not necessarily
brought about by one’s own fault. In other words, not all voluntary conduct
is fault worthy.
9 There are two lines of decisions in the Appellate Court that have applied
Sanchione. One line of decisions focuses on voluntariness, while the other
line focuses on culpability. Illustrating the Appellate Court authority focusing
on voluntariness is the decision in Richard v. Richard, 23 Conn. App. 58, 579
A.2d 110 (1990). In that case, the trial court denied a motion for modification
because ‘‘the defendant failed to show a substantial change in his circumstances
[because] the defendant’s decrease in income was brought about
by his own action.’’ (Emphasis added.) Id., 63. The Appellate Court reversed
the trial court’s decision and remanded the case for a new hearing because
the trial court had not allowed the defendant to present any evidence on
whether he voluntarily changed his job. Id., 62–63. In so holding, the Appellate
Court improperly elevated the centrality of voluntariness in the threshold
inquiry on a motion for modification.
By contrast, the Appellate Court decision in Misinonile v. Misinonile,
35 Conn. App. 228, 645 A.2d 1024 (1994), exemplifies the Appellate Court
authority that properly focuses the inquiry on culpability and not voluntariness.
In that case, the Appellate Court rejected the notion that voluntariness
alone precludes a threshold showing of a substantial change in circumstances.
Instead, the Appellate Court concluded that the trial court properly
found that the defendant’s voluntary retirement constituted a substantial
change in circumstances. The motivation behind the defendant’s voluntary
retirement was integral to the Appellate Court’s holding: ‘‘Our review of the
record discloses no basis for a finding that the defendant retired for the
purpose of avoiding or reducing his obligation. Rather, the defendant, who
had been eligible for retirement six years earlier, chose, after working for
thirty-three years with health problems, to retire at age sixty-eight. Under
such circumstances, it is not unreasonable for the defendant, as he stated,
to be ‘tired’ and to seek the less strenuous and demanding lifestyle offered
by retirement. The trial court chose to credit the defendant’s testimony. On
the basis of these facts, we conclude that the finding of the [trial] court,
that there was a substantial change of circumstances, was neither unreasonable
nor constituted an abuse of discretion.’’ (Emphasis added.) Id., 232.
10 Accordingly, we have emphasized the relevance of the motivations
behind a moving party’s voluntary conduct in deciding the threshold inquiry
on a modification motion. In Simms v. Simms, supra, 283 Conn. 494, for
example, we concluded that the trial court properly found a substantial
change in circumstances where the defendant voluntarily retired and sold
his business despite the plaintiff’s allegations that the defendant was still
able to work if he so chose. We reasoned that ‘‘[t]he trial court reasonably
could have concluded that the defendant sold his business because of his
advancing age and poor health, and not to avoid his obligations to the
plaintiff, and that the loss of a continuous stream of income from his
business constituted a substantial change in his financial circumstances
warranting review of his alimony obligation . . . .’’ (Emphasis added.)
Id., 504.
11 At oral argument before this court, the defendant’s attorney argued that
the trial court did find credible the defendant’s stated motivation. Specifically,
the defendant highlighted the following statement from the trial court’s
memorandum of decision: ‘‘While his stated motivation might have been a
good parental decision, it was a decision that ignored the realities of his
financial obligation as set forth in the judgment issued just months earlier.’’
We are not persuaded. When read in context, it is clear that the trial court
did not make any findings on the defendant’s stated motivations. The trial
court denied the motion because of the voluntary nature of the defendant’s
relocation without regard for his stated reasons for relocating to Connecticut.
12 According to the plaintiff, ‘‘[the court] determined that the defendant’s
voluntary conduct in quitting his employment and his subsequent relocation,
ignoring his financial obligations, was not an acceptable reason on which
the court could find a substantial change in circumstances.’’ Consistent with
this perspective on how the court arrived at its decision, the plaintiff urges
our caution in ‘‘[p]ermitting obligors, such as the defendant, to modify
financial obligations based on a subjective motivation that sounds acceptable
[because this] would provide strong incentive to many obligors to quit
employment and take a lesser paying job, or go part-time in order to reduce
their obligations.’’
We are mindful of the possibility that obligors may intentionally depress
their income for the purpose of avoiding alimony or support obligations.
See, e.g., Schmidt v. Schmidt, 180 Conn. 184, 189–90, 429 A.2d 470 (1980)
(‘‘[i]t is especially appropriate for the trial court to base its award on earning
capacity rather than actual earned income where . . . there is evidence
before the court that the person to be charged has wilfully depleted his or
her earnings with a view toward denying or limiting the amount of alimony
to be paid to a former spouse’’). Nonetheless, we disagree with the suggestion
that the motivation for a person’s voluntary action should not enter the
court’s analysis simply because a person could fabricate ‘‘a subjective motivation
that sounds acceptable.’’ The trial court is afforded broad discretion
in assessing the credibility of testimony in modification actions. See Borkowski
v. Borkowski, supra, 228 Conn. 739 (‘‘[a]s has often been explained, the
foundation for [an abuse of discretion standard of review] is that the trial
court is in a clearly advantageous position to assess the personal factors
significant to a domestic relations case’’ [internal quotation marks omitted]).
The mere possibility that a party may fabricate testimony regarding the
ostensibly acceptable reasons for his voluntary conduct resulting in an
alleged inability to pay does not require that we abandon the settled methods
for distinguishing between credible and incredible testimony.
In the present case, the trial court should have made a credibility determination
regarding the defendant’s alleged motivations for relocating to Connecticut.
Without the benefit of these findings, the trial court could not
properly ascertain whether the defendant had made a threshold showing
of a substantial change in circumstances.
13 We note that the plaintiff relies exclusively on the trial court’s reference
to the defendant’s purported disregard for his obligations to support her
contention that the court faulted the defendant for relocating to Connecticut.
The plaintiff’s argument, however, blurs the distinction between the consequences
of one’s actions and the motivations underlying one’s actions. A
decision that ostensibly ignores the realities of its consequences, here an
alleged inability to meet one’s financial obligations, is not necessarily a
decision that is motivated by bringing about those consequences.
The following hypothetical illustrates this distinction. A parent, upon
learning that his minor child has sustained serious injuries requiring lengthy
rehabilitation, relocates in order to be closer to his child during the child’s
recovery. As a consequence, the parent obtains new employment in a comparable
position but at a lower salary. Under these facts, a trial court could
not reasonably conclude that the parent’s voluntary relocation was culpable
conduct despite the reality that one consequence of the relocation was
reemployment at a lower salary.
Similarly in the present case, in the absence of a finding that the defendant
moved to Connecticut for an unacceptable reason, such as avoiding his
financial obligations, the voluntariness of his conduct does not alone support
the court’s determination that the defendant failed to show a substantial
change in circumstances.
14 To the extent that the plaintiff relies on the final sentence of the Appellate
Court’s opinion to bolster her interpretation of the trial court’s decision,
this argument is also unavailing. At the end of its opinion, the Appellate
Court states that ‘‘the [trial] court reasonably could have concluded that
the defendant’s unilateral action in the face of his financial obligations set
forth in the dissolution judgment was an unacceptable reason that did
not justify a finding of a substantial change in circumstances.’’ Olson v.
Mohammadu, supra, 134 Conn. App. 261–62.
Because the trial court did not make any findings regarding whether
the defendant’s stated reasons for relocating were culpable, the Appellate
Court’s conclusion that the trial court reasonably could have concluded that
the defendant’s voluntary action was an unacceptable reason for the alleged
change in circumstances is unfounded.
15 We decline to address the alternate ground for affirmance raised by the
plaintiff, namely, that the trial court’s findings on the defendant’s alleged
income change independently support the trial court’s conclusion that the
defendant failed to demonstrate a substantial change in circumstances. In
support of this claim, the plaintiff relies on a footnote in the trial court’s
memorandum of decision wherein the trial court observed, inter alia, that
it was not persuaded that the defendant’s relocation substantially changed
his financial circumstances. Specifically, the footnote provides: ‘‘Additionally,
the court is not convinced that the new income is significantly lower
than [the defendant’s] Florida income as presented in the financial affidavits
presented to the court. There is only a 13 [percent] reduction between his
gross Florida income and his actual present income not including his various
bonus payments received from his employer. Additionally, his employment
contract affords him the possibility of receiving further compensation in
the form of an incentive compensation, a productivity incentive, a quality
incentive and a patient satisfaction incentive as well as merit increases.
Finally, his residence in Connecticut will reduce the high cost of travel
previously required to see his son.’’
Consistent with the foregoing discussion, the trial court’s memorandum
of decision and articulation demonstrate that the defendant’s financial circumstances
played no part in the trial court’s decision. Significantly, the
trial court stated that because it did not consider the defendant’s voluntary
relocation and income change to be a substantial change in circumstances,
the findings in the footnote of the trial court’s memorandum of decision
were ‘‘irrelevant to the decision.’’ Accordingly, the plaintiff is asking that
we affirm the trial court’s decision on an alternative ground not reached
by the trial court.
We decline to address the alternative ground for affirmance for two fundamental
reasons. First, even if we were to assume that the plaintiff raised
and briefed this alternative ground in the Appellate Court, the plaintiff was
required, but failed, to file a statement with this court providing alternative
grounds for affirmance of the Appellate Court decision in accordance with
Practice Book § 84-11. Section 84-11 provides in relevant part: ‘‘(a) Upon
the granting of certification, the appellee may present for review alternative
grounds upon which the judgment may be affirmed provided those grounds
were raised and briefed in the appellate court. . . .
‘‘(c) Any party desiring to present alternative grounds for affirmance . . .
shall file a statement thereof within fourteen days from the issuance of
notice of certification. . . .’’
Second, even if we were to assume no prejudice to the defendant, we
still cannot affirm the trial court’s decision on the alternative ground raised
by the plaintiff. ‘‘[I]f the alternate issue was not ruled on by the trial court,
the issue must be one that the trial court would have been forced to rule in
favor of the appellee. Any other test would usurp the trial court’s discretion.’’
(Internal quotation marks omitted.) Zahringer v. Zahringer, 262 Conn. 360,
371, 815 A.2d 75 (2003), citing W. Horton & S. Cormier, Rules of Appellate
Procedure (2003 Ed.) § 63-4 (a) (1), comment, p. 138. We cannot conclude
as a matter of law that the trial court would have been forced to rule in
the plaintiff’s favor on the basis of the alternative ground raised by the
plaintiff. There is no formulaic equation for determining whether an alleged
income change constitutes a substantial change in circumstances. Thus,
even if the trial court had articulated the findings in its footnote, we would
still be unable to affirm the trial court’s decision on that basis.
16 We note that at oral argument before this court, both parties agreed
that, if this court were to conclude that the trial court improperly denied
the defendant’s motion for modification, a rehearing on the modification
motion would be appropriate. In view of the time that has elapsed since
the defendant filed his amended motion for modification, both parties further
agreed that, if the trial court were to award a modification on rehearing,
the court should follow the principles articulated in Zahringer v. Zahringer,
124 Conn. App. 672, 6 A.3d 141 (2010), in fashioning an appropriate modification.
See id., 689 (‘‘The retroactive award may take into account the long
time period between the date of filing a motion to modify . . . and the date
that motion is heard, which in this case spans a number of years. The court
may examine the changes in the parties’ incomes and needs during the time
the motion is pending to fashion an equitable award based on those changes.
The current alimony need not be uniformly retroactive, if such a result
would be inequitable.’’).

Outcome: The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new hearing on the motion
for modification.

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