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SALZBRUNN v. SALZBRUNN—DISSENT

PELLEGRINO, J., dissenting. The majority has

rejected the defendant’s claim that the trial court

applied the incorrect legal standard when considering

the plaintiff’s postjudgment motion for modification.

Because I do not accept this conclusion, I respectfully dissent.

Following an uncontested hearing where both parties

were represented by counsel, the court rendered a judgment dissolving the marriage of the plaintiff, Jacqueline

Salzbrunn, to the defendant, Dennis Salzbrunn, on

August 16, 2011. Approximately one yearlater, the plaintiff filed a motion to modify alimony and support. Paragraphs nineteen and twenty of the separation

agreement, which had been incorporated into the judgment, provided for a modification of alimony and child

support if the plaintiff, who was employed in the defendant’s business, left that employment for any reason,

reciting that such change would constitute grounds for

the modification of alimony. The separation agreement

did not provide that this event constituted a substantial

change of circumstances, which ordinarily is a prerequisite for such modification under General Statutes § 46b86; but instead, the agreement provided that ‘‘such

change, as aforesaid, need not be substantial to constitute grounds for the modification of alimony.’’ Again,

it should be repeated, that the plaintiff’s motion for

modification came but one year after the divorce was

final, the only change in circumstance was the plaintiff’s

termination of employment, and this change was contemplated in the separation agreement.

The plaintiff argued in her motion for modification

as follows: ‘‘[I]n view of the changed circumstances of

the plaintiff, the plaintiff seeks orders from this court

modifying the alimony and child support under the

above-cited provisions of the Divorce Decree.’’ The provisions the plaintiff cited to in her motion for modification were paragraphs nineteen and twenty of the

divorce decree.1

I believe the trial court was in error in conducting a

full scale review of the financial condition of the parties

under General Statutes § 46b-82. The comprehensive

inquiry conducted by the court, which included, among

other things, adding back the depreciation on the defendant’s rental property and adding $20,000 to the defendant’s net income based on personal expenses paid by

his company, amounted to a complete review of all the

financial orders. This was improper and not in accordance with the terms of the separation agreement,

which provided for an adjustment of the alimony and

support payment based on a change in the plaintiff’s

employment.
In the present case, the plaintiff moved to modify the

judgment specifically based upon paragraphs nineteen

and twenty of the separation agreement. Therefore,

because the plaintiff only requested her alimony and

child support awards to be modified pursuant to the

separation agreement originally agreed to by the parties

and incorporated into the terms of the judgment by the

court, it was improper for the court to go beyond the

agreement and consider all the factors under § 46b-82.

This court in Fox v. Fox, 152 Conn. App. 611, 99 A.3d

1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014),

used the correct legal standard. ‘‘In determining

whether a trial court has abused its broad discretion in

domestic relations matters, we allow every reasonable

presumption in favor of the correctness of its action.

. . . Nevertheless, we may reverse a trial court’s ruling

on a modification motion if the trial court applied the

wrong standard of law.’’(Internal quotation marks omitted.) Id., 619. Moreover, Fox stated that ‘‘[t]he power

of the trial court to modify the existing order does

not, however, include the power to retry issues already

decided . . . or to allow the parties to use a motion

to modify as an appeal. . . . Rather, the trial court’s

discretion includes only the power to adapt the order

to some distinct and definite change in the circumstances or conditions of the parties.’’(Internal quotation

marks omitted.) Id., 621. Here, the order should have

been adapted in accordance with the separation

agreement.

The majority dismisses the defendant’s claim because

it is raised for the first time on appeal. In doing so, the

majority relies on Ucci v. Ucci, 114 Conn. App. 256,

969 A.2d 217 (2009), for the notion that because the

defendant broughtthis claim forthe first time on appeal,

his claim cannot be addressed.2 Under Practice Book

§ 60-5, however, this court ‘‘shall not be bound to consider a claim unless it was distinctly raised at the trial

or arose subsequent to the trial.’’ (Emphasis added.)

Additionally, under Practice Book § 60-5 this court may

‘‘in the interests of justice notice plain error not brought

to the attention of the trial court.’’ The parties have

filed supplemental briefs on this very issue, as it arose

subsequent to the trial, and it was plain error for the

court to use the wrong standard of law. See Blumberg

Associates Worldwide, Inc. v. Brown & Brown of Connecticut,Inc., 311 Conn. 123, 149–50, 83 A.3d 840 (2014).

For these reasons, I respectfully dissent and would

reverse the judgment of the trial court and remand the

case for further proceedings.

1

If the plaintiff had intended to bring her motion for modification under

either General Statutes §§ 46b-82 or 46b-86, then that must have been specifically identified in the motion. See Remillard v. Remillard, 297 Conn. 345,

352, 999 A.2d 713 (2010).

2 Ucci is distinguishable from the present case because in that case the

‘‘defendant filed a motion to modify the judgment, claiming a substantial

change in circumstances . . . .’’ Ucci v. Ucci, supra, 114 Conn. App. 257.