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CHARLOTTE MALPESO v. PASQUALE MALPESO

(AC 36622)

(AC 37203)

DiPentima, C. J., and Beach and Sheldon, Js.

Argued December 14, 2015—officially released May 3, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Schofield, J.)

Barbara M. Schellenberg, with whom were Richard

L. Albrecht and, on the brief, Bruce L. Levin, for the

appellant-appellee (defendant).

Kevin F. Collins, for the appellee-appellant

(plaintiff).
Opinion

DiPENTIMA, C. J. In this postdissolution marital matter, the defendant, Pasquale Malpeso, appeals from the

judgment of the trial court. Although the court granted

his motion to modify the original unallocated alimony

and child support that was entered as part of the parties’

judgment of dissolution, the defendant contends that

the court (1) applied the wrong legal standard in calculating the child support component of the unallocated

alimony and child support order, (2) determined the

wrong effective date of the modification, (3) erroneously concluded that a lien could be placed on the

defendant’s assets for him to pay his alimony obligation,

and (4) incorrectly stated that it lacked jurisdiction to

terminate his obligation to pay alimony. The defendant

further claims that the trial court abused its discretion

in finding him in contempt and ordering him to pay the

plaintiff’s counsel fees and costs.1 We reverse, in part,

and affirm, in part, the judgment of the trial court.2

We set forth the following facts and procedural history pertinent to this appeal. The plaintiff, Charlotte

Malpeso, married the defendant on August 23, 1986. On

June 25, 2004, the marriage was dissolved. At that time,

the parties had three minor children: a son, born in

1988; and twin daughters, born in 1993. The judgment

of dissolution incorporated the parties’ separation

agreement (agreement) that provided, inter alia, that

the defendant would pay the plaintiff $20,000 per month

in unallocated alimony and child support.3 The

agreement also contained a clause limiting the circumstances in which the amount and term of alimony could

be modified.4 The judgment of dissolution was opened

and modified once in December, 2005, to allow the

defendant to purchase certain property from the

plaintiff.

The complicated procedural history of this case

began on May 25, 2011, when the defendant filed a

motion to modify child support. In response, on June 17,

2011, the plaintiff filed an objection to the defendant’s

motion. In August, 2011, the defendant amended his

motion not only to modify child support, but also to

modify alimony based on the following grounds: (1) the

parties’ daughters had reached the age of majority and

had graduated from high school; and (2) the economy

of New York had undergone a substantial change as a

result of a catastrophic event. The court, Wenzel, J.,

ruled that the only permissible ground for modification,

pursuant to paragraph 3.2 of the agreement, was the

claim alleging a substantial change in the economy of

New York. The court sustained the plaintiff’s objection

to the motion on all other grounds upon which it was

based. The defendant appealed from that ruling on September 6, 2011.

While the appeal was pending, the parties’ litigation
continued in the trial court. The seeds of this appeal

were sown on September 13, 2011, when the defendant

filed a motion for contempt, alleging that the plaintiff

had ‘‘refuse[d] to provide reasonable support to and

for the parties’ children for support expenses such as

clothing, necessities . . . personal transportation . . .

grooming, etc.’’ Four months later, on January 25, 2012,

the defendant filed another motion to modify alimony

and child support. The second motion to modify was

based on three grounds: (1) the parties’ three children

had reached the age of majority and were no longer

residing with the plaintiff; (2) the defendant was paying

for the adult children’s college expenses;5 and (3) the

defendant was experiencing a ‘‘downturn in [his] financial circumstances.’’6 The defendant asked the court,

on those grounds, either to reduce or to terminate his

financial ‘‘obligations to the plaintiff . . . .’’ The plaintiff was served with the second motion to modify on

February 9, 2012. The plaintiff objected to this motion

and, on June 14, 2012, filed a motion for contempt,

alleging, inter alia, that the defendant was nine months

(October, 2011 through June, 2012) in arrears in making

his $20,000 monthly payments.

The court, Schofield, J., held multiple hearings

between October and December of 2012 to resolve the

following motions: (1) the defendant’s motion for contempt filed on September 13, 2011; (2) the defendant’s

motion to modify alimony and child support filed on

January 25, 2012; and (3) the plaintiff’s motion for contempt filed on June 14, 2012. Before Judge Schofield

ruled on the motions, this court published its decision

reversing Judge Wenzel’s ruling.7

In that year, following

this court’s decision, the court, Schofield, J., issued

three decisions addressing these motions.

With respect to the first decision, the court’s first

memorandum of decision was issued on July 16, 2013,

addressing all three motions before the court. In that

decision, the court made the following findings: (1) the

parties’ three children had reached the age of majority;

(2)the children were no longerliving with either parent;

(3) the defendant, pursuant to the agreement, was paying for the three children’s college expenses; and (4)

the alleged downturn in the defendant’s ‘‘financial circumstances [was] speculative, and uncorroborated,

indeed contradicted, by [the evidence presented].’’ As

to the third finding, the court credited the defendant’s

testimony that when he started paying for the children’s

college expenses, he believed that the amount of his

unallocated alimony and support payment would be

reduced. Nonetheless, the court noted that the

agreement did not provide for such a reduction; thus,

it ruled that the defendant could not ‘‘now claim that

the costs of college expenses are a basis for modification.’’ The court, however, also inserted a footnote stating that, ‘‘[u]nless, of course, those college expenses

substantially changed [the defendant’s] financial cir-
cumstances.’’

The court granted the defendant’s second motion to

modify alimony and child support that had been filed

on January 25, 2012. Specifically, because ‘‘the children

of the marriage [had] reached the age of majority,’’ the

court applied the child support and arrearage guidelines

(guidelines), without specifying the effective year of

those guidelines, to fashion a new financial order. Also,

by apparently, but not explicitly, relying on the parties’

current financial affidavits, the court calculated the parties’ combined net weekly income to be $16,850, which,

pursuant to the undated guidelines and a ‘‘declining

factor, given the income of the parties,’’ resulted in a

presumptive child support amount of $8862 per month.

Accordingly, the court converted the unallocated alimony and child support into a periodic alimony order

in the amount of $12,000 per month, which was reached

by reducing the defendant’s $20,000 monthly obligation

by $8000.8 The modified alimony order was to become

effective on July 16, 2013, the date of the court’s

decision.

As to the parties’ respective motions for contempt,

the court ruled in favor of the plaintiff on each. On

the defendant’s motion for contempt, it found that the

plaintiff was not in contempt. On the plaintiff’s motion,

itfound that the defendant was ‘‘in wilful and intentional

violation of the court orders.’’ Upon finding the defendant in contempt, the court ordered him to pay the

plaintiff $440,000 in arrears for failing to meet his

$20,000 per month obligation forthe twenty-two months

from October, 2011, through July, 2013. Additionally,

the court ordered the defendant to pay the plaintiff’s

attorney’s fees and costs, totaling $41,016.18. In

response to this decision, both parties filed several

motions. The plaintiff filed a ‘‘motion to clarify and/

or articulate’’ and a ‘‘motion to reopen and reargue

decision.’’ The defendant also filed a motion to reargue.

With respect to the second decision, after the court

held a hearing on the plaintiff’s motion to clarify and/

or articulate and the defendant’s motion to reargue in

October, 2013, it issued its second memorandum of

decision on February 18, 2014. The court clarified its

prior calculation of the presumptive child support

amount, explaining that because the parties’ combined

net weekly income was $17,039.309 and applying the

guidelines with ‘‘a presumptive declining factor,’’ the

resulting presumptive child support amount for three

children was $2061 per week ($687 per child) or $8862

per month.10 Accordingly, the court ordered the ‘‘unallocated alimony to be reduced by the sum of $2061 per

week retroactive to the [date of] service of the motion

for modification.’’ In other words, the court reduced the

defendant’s monthly financial obligation to the plaintiff

from $20,000 to $11,138 per month, retroactive to the

date of service.11 Then the court stated to the contrary
without further elaboration: ‘‘In its [July, 2013 memorandum of decision], the court incorrectly declined to

award retroactivity to the date of majority. The court

now corrects that error.’’ The court did not specify

which date of majority it intended to use, i.e., the date

of majority of the son or that of the daughters.

The court’s second memorandum of decision also

explained other aspects of its first order. Pertinent to

this appeal, the court changed its stance on the issue

of college expenses. The court, ‘‘upon review of the

[agreement] and its provisions for modification,’’ concluded that college expenses could be a ‘‘basis for modification.’’ Therefore, the court concluded that $32,000

per month of college expenses constituted ‘‘a substantial change in circumstances justifying a reexamination

of the parties’ financial circumstances pursuant to [General Statutes § 46b-82] and Borkowski v. Borkowski,

228 Conn. 729, 739, 638 A.2d 1060 (1994).’’ The court,

then, concluded that ‘‘alimony payments should not

terminate [but will] . . . be adjusted by a reduction in

child support.’’ The court iterated that the defendant’s

monthly financial obligation to the plaintiff would be

set at $11,138 per month. See footnote 11 of this opinion.

The court also addressed its previous contempt

order. It asserted that the defendant was in contempt

but adjusted its previous ruling as follows: ‘‘[T]he court

orders that the arrearage which must be recalculated to

reflect the current arrearage accruing since December,

2012, as modified with retroactivity.’’ The court did not

elaborate any further, but it did affirm its previous order

that the defendant pay the plaintiff’s attorney’s fees and

costs. In response to the court’s second memorandum

of decision, the plaintiff filed a motion to reopen, clarify

and reargue, to which the defendant objected.

With respect to the third decision, on August 29, 2014,

after a hearing, the court issued a third memorandum

on the plaintiff’s motion to reopen. The court again

attempted therein to clarify how it had calculated the

presumptive child support amount. The court determined that because the parties’ combined net weekly

income was approximately $16,900, the presumptive

child support amount was $2600 per week pursuant to

the guidelines effective August 1, 2005, as well as General Statutes § 46b-84 (d).12 The court also articulated

that it ‘‘had not consider[ed] college expenses as a basis

for modification.’’ The court declined to articulate further as to the retroactivity of the modification order.

Finally, the court made two observations directed at

the defendant’s previous arguments. First, the court

rejected the defendant’s argument regarding the termination of the alimony award because the agreement

limited the modification of alimony to specific events,

and the court had no jurisdiction to terminate the alimony. Second, the court again stated that it did not

consider college expenses because the defendant was
obligated contractually to pay for those expenses. It

did, however, reiterate that ‘‘if the college expenses

significantly altered [the defendant’s] finances, that

might be a basis for modification.’’

Faced with this difficult record, we briefly review

the findings and conclusions that appear to be before

us in this appeal. The court modified the $20,000 per

month unallocated alimony and support order to a periodic alimony order of $11,138 per month. It is also clear

that the court attempted to fashion this alimony order

in its second memorandum of decision by calculating

the presumptive child support amount attributable to

the unallocated alimony and support order, and

deducting that figure ($8862 per month) from $20,000.

The court arrived at the child support figure by

reviewing the parties’ current financial affidavits, as

presented at the 2012 hearings, and determining the

parties’ combined net weekly income, then applying the

2005 guidelines with respect to three children and the

statutory factors listed in § 46b-84 (d). Although the

court acknowledged that the obligation to pay college

expenses constituted a substantial change in the defendant’s circumstances, it did not consider his obligation

to pay college expenses as a basis for modification of

alimony. Therefore, the court justified its alimony order

by analyzing the parties’ financial circumstances in light

of the factors listed in § 46b-82 as well as Borkowski

v. Borkowski, supra, 228 Conn. 729.

What is less clear is the effective date of the modification order and the amount of the arrearage owed to the

plaintiff as a result of the contempt finding. The second

memorandum of decision contains conflicting language

as to the retroactivity of the newly fashioned alimony

order, and the court declined to articulate its order.

Moreover, although the court explicitly stated in its

second memorandum of decision that the arrearage

‘‘must be recalculated,’’ it did not do so.

On March 10, 2014, the defendant filed this appeal,

which he later amended on September 16, 2014. The

plaintiff also filed an appeal on September 16, 2014.

See footnote 1 of this opinion. Additional facts will be

set forth as necessary.

I

The defendant’s first claim is that the court applied

the wrong legal standard in calculating what portion of

the original unallocated alimony and child support

order was child support. He makes two arguments to

support this claim. First, the defendant contends that

the court failed to apply the methodology for determining the child support portion of an unallocated alimony

and child support order, as articulated in Tomlinson v.

Tomlinson, 305 Conn. 539, 46 A.3d 112 (2012); specifically, the court erroneously used the parties’ current net

weekly incomes to calculate the child support amount.
Second, he asserts that the court should have determined the intent of the parties rather than applying the

guidelines to determine the amount of child support.

Thus, the defendant contends, the entire modification

order must be reversed. We agree that the court applied

the wrong legal standard.

The following additional facts are required. The court

at the original dissolution proceeding in 2004, Hon.

Dennis F. Harrigan, judge trial referee, found the

agreement between the parties to be fair and equitable.

It incorporated the terms of the agreement into the

dissolution decree, noting that ‘‘the income of the

[d]efendant exceeds the maximum under the guidelines

schedule, [and] [t]he parties have reached an agreement

as to [child support] in their [a]greement.’’

At the November 16, 2012 hearing, the defendant

testified to his interpretation of the unallocated alimony

and child support award. Specifically, he testified that

the $20,000 obligation was meant to be equally divided

among the three children and the plaintiff, i.e., $5000

per person per month. The defendant also stated that

although he agreed to pay for the children’s college

expenses, he also assumed that the ‘‘$5000 per child

would be eliminated’’ once the child was in college.

Moreover, he asserted that he would not have signed

the agreement if he ‘‘would be paying the [children’s]

college education and continue paying $20,000 a month

[in] alimony for the rest of [his] life.’’

The defendant makes two arguments to support this

claim. First, he claims that the court improperly used

the parties’ current financial affidavits. Second, he

claims that the court should have credited the defendant’s testimony as to the parties’ intent regarding how

the $20,000 was meant to be divided. The second argument is based on the defendant’s reading of the original

dissolution decree in which Judge Harrigan not only

found that this was a case of a high income parent

whose net weekly income went beyond the guidelines,

but also that the parties had reached an agreement as

to child support. Thus, the defendant contends, the

court never should have applied the guidelines when

deciding the motion to modify. As to the defendant’s

first argument, we agree. We reject the defendant’s second argument.

We begin by setting forth the relevant standard of

review and legal principles. The defendant asserts that

the court applied the wrong legal standard in calculating

the child support amount and that the court, rather than

applying the guidelines, should only have determined

the intent of the parties to ascertain the amount of child

support in the unallocated alimony and child support

order. Because the defendant raises a question of law

in both issues and we must interpret existing statutes

and regulations,13 we apply plenary review. See Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d 449 (2013)
(‘‘[t]he question of whether, and to what extent, the

child support guidelines apply . . . is a question of law

over which this court should exercise plenary review’’

[internal quotation marks omitted]); Coury v. Coury,

161 Conn. App. 271, 293, 128 A.3d 517 (2015) (‘‘[o]ur

deferential standard of review [in domestic relations

cases] . . . does not extend to the court’s interpretation of and application of the law to the facts [thus, we

apply] . . . plenary review on appeal’’ [internal quotation marks omitted]).

In cases such as this one, where the parties incorporate the child support into an unallocated alimony and

child support order that limits the modification of the

alimony pursuant to an agreement, modification

requires additional considerations. Because ‘‘an unallocated order incorporates alimony and child support

without delineating specific amounts for each component, the unallocated order, along with other financial

orders, necessarily includes a portion attributable to

child support in an amount sufficient to satisfy the

guidelines.’’ Tomlinson v. Tomlinson, supra, 305 Conn.

558. Thus, to decide a motion to modify in this situation,

‘‘a trial court must determine what part of the original

decree constituted modifiable child support and what

part constituted nonmodifiable alimony.’’ Id.

When a court unbundles child support from an unallocated alimony and child support order, the guidelines

continue to provide guidance.14 See id. Even in cases

of high income parents, adherence to principles of the

guidelines is mandatory. See O’Brien v. O’Brien, 138

Conn. App. 544, 551, 53 A.3d 1039 (2012) (‘‘[o]ur

Supreme Court [has] emphasized the importance of the

mandatory application of the guidelines to all cases

involving minor children, including those cases involving families with high incomes’’ [emphasis added]), cert.

denied, 308 Conn. 937, 66 A.3d 500 (2013); see also

General Statutes § 46b-215b (a) (guidelines ‘‘shall be

considered in all determinations of child support award

amounts’’ [emphasis added]).

The 1999 guidelines include the schedule of basic

child support obligations (schedule)for calculating ‘‘the

basic child support obligation’’ for families that have

three minor children and a combined net weekly income

ranging from $10 to $2500.15 Regs., Conn. State Agencies

§ 46b-215a-2a (f). The guidelines, however, direct that,

‘‘[w]hen the parents’ combined net weekly income

exceeds [$2500], child support awards shall be determined on a case-by-case basis, and the current support

prescribed at the [$2500] net weekly income level shall

be the minimum presumptive amount.’’ (Emphasis

added.) Id., § 46b-215a-2a (a) (2); see also Dowling v.

Szymczak, 309 Conn. 390, 400, 72 A.3d 1 (2013). Therefore, ‘‘[t]o the extent that the parties’ combined net

weekly income exceeds . . . the upper limit of the

schedule . . . the schedule cannot, and does not,
apply, except insofar as the guidelines mandate a minimum child support payment. This does not mean, however, that the guideline principles that inform the

schedule, including equity, consistency and uniformity

in the treatment of persons in similar circumstances

. . . do not continue to apply merely because the parties’ income exceeds the schedule’s upper limit. As previously discussed, § 46b-215b requires that the

guidelines shall be considered in all determinations of

child support amounts . . . . Accordingly, the guidelines cannot be ignored when the combined net family

income exceeds the upper limit of the schedule, but

remain applicable to all determinations of child support.’’ (Citations omitted; emphasis omitted; internal

quotation marks omitted.) Maturo v. Maturo, 296 Conn.

80, 109, 995 A.2d 1 (2010).

Critical to this case, the guidelines grant discretionary

power for courts to deviate from the presumptive minimum child support amount. ‘‘[T]he guidelines emphasize that the support amounts calculated thereunder

are the correct amounts to be ordered by the court

unless rebutted by a specific finding on the record that

such an amount would be inequitable or inappropriate.

[Regs., Conn. State Agencies] § 46b-215a-3 (a). Any such

finding shall include the amount required under the

guidelines and the court’s justification for the deviation,

which must be based on the guidelines’ ‘[c]riteria for

deviation . . . .’ Id., § 46b-215a-3 (b).’’16 Maturo v.

Maturo, supra, 296 Conn. 92. ‘‘The deviation criteria

are narrowly defined and require the court to make a

finding on the record as to why the guidelines are

inequitable or inappropriate.’’ (Emphasis added.)

Id., 100.

Finally, ‘‘[i]n modifying the support 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. . . . Section 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 [General Statutes §§] 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; internal quotation marks omitted.) Tomlinson v. Tomlinson, supra, 305 Conn. 559.

We now return to the facts of this case. The court

found a substantial change of circumstances in that the

children had reached the age of majority and were no

longer residing with either parent. These findings gave

the court the authority, pursuant to § 46b-86,17 to modify
the unallocated alimony and child support order. See

Malpeso v. Malpeso, 140 Conn. App. 783, 786, 60 A.3d

380 (2013) (§ 46b-86 [a] ‘‘permits the court to modify

alimony and child support orders if the circumstances

demonstrate that: [1] either of the parties’ circumstances have substantially changed; or[2] the final order

of child support substantially deviates from the child

support guidelines’’ [internal quotation marks omitted]). The court, however, made four critical errors in

its attempt to unbundle the child support amount from

the original unallocated alimony and child support

order.

First, the court incorrectly used the 2005 guidelines.

In December, 2005, the parties’ agreement had been

opened and modified to allow the defendantto purchase

certain property from the plaintiff. The court, in its

attempt to unbundle the child support from the unallocated alimony and child support, applied Borkowski

using 2005 as its benchmark. The court, however,

applied Borkowski incorrectly. Although ‘‘[i]t is . . .

well established that when a party, pursuant to § 46b86, 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 added) Borkowski v. Borkowski,

supra, 228 Conn. 736;18 this principle does not suggest

that the court, in this case, can set its benchmark to

2005 because the original decree setting the $20,000

unallocated alimony and child support order was not

modified in 2005. In other words, the court should have

applied the 1999 guidelines because the 2005 modification did not relate to, and, importantly, did not modify

the unallocated alimony and child support order. See,

e.g., Demartino v. Demartino, 79 Conn. App. 488, 495,

830 A.2d 394 (2003) (‘‘[t]he prior order must therefore

be a prior order modifying alimony in some manner’’

[emphasis in original]).

Second, the court incorrectly used the parties’ current financial affidavits to determine the combined net

weekly income. See Tomlinson v. Tomlinson, supra,

305 Conn. 558 (directing that courts, in unbundling unallocated alimony and child support order, must determine child support order that was ‘‘right and proper at

the time it is entered,’’ which requires using financial

affidavits from time of original decree [emphasis in

original]). Third, after incorrectly calculating the combined net weekly income and applying the guidelines

with a ‘‘presumptive declining factor,’’ the court erroneously attributed the presumptive minimum child support amount to each child rather than attributing the

amount to all three children. See Regs., Conn. State

Agencies § 46b-215a-2b (c)(3)(B)(calculated presumptive minimum child support amount from schedule represents ‘‘the total current support obligation of both

parents for all children who support is being deter-
mined’’ [emphasis added]).

Fourth and finally, because the parties’ 2004 combined net weekly income, as noted by the court at the

time of dissolution, would have exceeded the $2500

threshold, the child support award was to be determined on a case-by-case basis. See Regs., Conn. State

Agencies § 46b-215a-2a (2). Therefore, the court should

have considered the deviation criteria and not simply

relied on the guidelines’ schedule setting the presumptive minimum child support amount. See Tomlinson v.

Tomlinson, supra, 305 Conn. 560 (noting that court,

in unbundling child support from unallocated order,

‘‘improperly may have relied solely on the presumptive

guidelines amount in calculating the portion attributable to child support at the time of dissolution’’ [emphasis added]). Accordingly, the court in this case applied

the wrong legal standard in determining the child support amount attributable to the original unallocated

alimony and child support order.

On remand, to determine the proper child support

amount, the court must correctly unbundle the child

support from the 2004 unallocated alimony and child

support order. First, it must determine the parties’ combined net weekly income using the 2004 financial affidavits. Second, it must calculate the presumptive

minimum for the then three minor children.19 Because

the net weekly income exceeded the schedule’s $2500

threshold, the court may, ‘‘in the exercise of [its] discretion, determine the correct percentage of the combined

net weekly income assigned to child support in light of

the circumstances in [this] particular case, including a

consideration of other, additional obligations imposed

on the noncustodial parent, any deviation from the

schedule or the principles on which the guidelines are

based must be accompanied by the court’s explanation

as to why the guidelines are inequitable orinappropriate

and why the deviation is necessary to meet the needs

of the child.’’ Maturo v. Maturo, supra, 296 Conn. 95–96.

Further, the court will need to ascertain the intent

of the parties. See Isham v. Isham, 292 Conn. 170,

180–81, 972 A.2d 228 (2009). The record reveals that the

parties had ‘‘reached an agreement as to child support

in their [a]greement.’’ The agreement states that the

‘‘defendant shall pay to the [plaintiff] as alimony, or

separate maintenance for the support of the minor

children the sum of $20,000 per month.’’ (Emphasis

added.) This court previously determined that the ‘‘only

plausible interpretation of this clause is that it provides

for unallocated alimony and child support.’’ Malpeso

v. Malpeso, supra, 140 Conn. App. 788. The language,

however, was not clear as to how the $20,000 was to

be divided. Because ‘‘support agreements that are not

in accordance with the financial dictates of the guidelines are not enforceable unless one of the guidelines’

deviation criteria is present, such as when the terms
of the agreement are in the best interest of the child’’;

Brent v. Lebowitz, 67 Conn. App. 527, 532, 787 A.2d

621, cert. granted on other grounds, 260 Conn. 902, 793

A.2d 1087 (2002) (appeal withdrawn April 25, 2002); the

court must determine what was intended to be child

support within the unallocated alimony and child support order to ensure the agreement did not run afoul

of the guidelines.20

Our Supreme Court has ‘‘characterized the financial

orders in dissolution proceedings as resembling a

mosaic, in which all the various financial components

are carefully interwoven with one another. . . .

Accordingly, when an appellate court reverses a trial

court judgment based on an improper alimony, property

distribution, or child support award, the appellate

court’s remand typically authorizes the trial court to

reconsider all of the financial orders. . . . We also have

stated, however, that [e]very improper order . . . does

not necessarily merit a reconsideration of all of the trial

court’s financial orders. A financial order is severable

when it is not in any way interdependent with other

orders and is not improperly based on a factor that is

linked to other factors. . . . In other words, an order

is severable if its impropriety does not place the correctness of the other orders in question. . . . Determining

whether an order is severable from the other financial

orders in a dissolution case is a highly fact bound

inquiry.’’ (Citations omitted; internal quotation marks

omitted.) Tuckman v. Tuckman, supra, 308 Conn. 214.

In the present case, we have concluded that the court

applied the wrong legal standard in calculating the child

support amount from the original unallocated alimony

and child support order. Therefore, to determine a new

alimony order, after the correct child support amount

is deducted from the original unallocated alimony and

child support order, the court must ‘‘subtract that

amount from the total amount of [the] unallocated [alimony and] support [order] . . . .’’; Coury v. Coury,

supra, 161 Conn. App. 304; i.e., subtract the 2004 child

support amount from $20,000. The difference represents the 2004 alimony award. Because ‘‘grounds for

modification have been shown . . . the trial court is

entitled to consider all the factors, as mandated by . . .

[§] 46b-82,21 available in determining the initial award.’’

(Footnote added.) Matles v. Matles, 8 Conn. App. 76,

81, 511 A.2d 363 (1986). Consequently, the court must

now compare the newly determined 2004 alimony

award against the parties’ 2012 financial circumstances

because the defendant’s second motion to modify alimony and child support was before the court in 2012.

Finally, because we do not know the impact of the

college expenses on the court’s analysis in developing

a new alimony order on remand, we conclude that the

financial mosaic as to alimony must be crafted anew.

Accordingly, a new hearing is required to consider the

financial issues pertaining to fashioning an alimony
order, if any.22 See, e.g., Tuckman v. Tuckman, supra,

308 Conn. 215.

II

The defendant’s next claim is that the court abused

its discretion in determining the effective date of the

modification. Specifically, he points to various inconsistencies among the court’s three orders regarding their

retroactivity, which make it ‘‘impossible to calculate a

new arrearage figure . . . .’’ The defendant contends

that any arrearage should be retroactive, by operation

of law, to the day when the parties’ oldest child reached

the age of majority and not the date his motion to modify

was served on the plaintiff, February 9, 2012. According

to the defendant, this date is not an impediment for the

court to order retroactivity to April 1, 2006, when the

oldest child reached the age of majority. He cites no

case law to support this proposition. Rather, the defendant argues that § 46b-86 (a) must be harmonized with

General Statutes § 46b-66.23 We reject the defendant’s

argument, but we conclude that the court abused its

discretion because it did not enter a clear order as to

the retroactivity of its modified alimony order.

‘‘The well settled standard of review in domestic relations cases is that this court will not disturb trial court

orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.

. . . 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. . . . Notwithstanding the

great deference accorded the trial court in dissolution

proceedings, 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.) Nation-Bailey v. Bailey, 144 Conn. App. 319,

323, 74 A.3d 433 (2013), aff’d, 316 Conn. 182, 112 A.3d

144 (2015).

The following legal principles guide our analysis. ‘‘As

a general matter, [t]he obligation of a parent to support

a child terminates when the child attains the age of

majority, which, in this state, is eighteen. General Statutes § 1-1d; Kennedy v. Kennedy, 177 Conn. 47, 52, 411

A.2d 25 (1979).’’ (Internal quotation marks omitted.)

Hughes v. Hughes, 95 Conn. App. 200, 208, 895 A.2d

274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006).

Nonetheless, ‘‘[t]his court has held that [w]hen, as part

of a divorce decree, a parent is ordered to pay a specified amount periodically for the benefit of more than

one child, the emancipation of one child does not automatically affect the liability of the parent for the full

amount. . . . The proper remedy . . . is to seek a

modification of the decree.’’ (Internal quotation marks

omitted.) Id., 209.

The defendant’s argument is untenable because the
relevant statutes and case law contradict his position.

Section 46b-66 explicitly states that agreements ‘‘shall

be modifiable to the same extent as any other provision

of any order or decree in accordance with section 46b86.’’ General Statutes § 46b-66 (b). Section 46b-86 (a)

provides in relevant part: ‘‘No order for periodic payment of permanent alimony or support may be subject

to retroactive modification, except that the court may

order modification with respect to any period during

which there is a pending motion for modification of

an alimony or support order from the date of service

of notice of such pending motion upon the opposing

party . . . .’’ (Emphasis added.) Therefore, notwithstanding the general rule that in Connecticut, absent

an agreement, a parent’s obligation to support a child

ends at the age of majority, the party seeking to terminate such obligation must file a motion with the court.24

This court previously has observed, ‘‘[h]ere, we are

faced with a situation where an event certain, the attainment of majority by the child, inevitably is bound to

occur. Under such circumstances, logic and reason

leads us to conclude that when an order for unallocated

alimony and support is entered and when that order

does not contain a provision for specific reduction or

reallocation upon the child’s majority, there is implicit

in such order the contemplation that when the child

attains majority the trial court, upon motion of either

party, must conduct a hearing to ascertain what part,

if any, of the order is then attributable to child support

and it must modify the order to reflect the same.’’

(Emphasis added.) Matles v. Matles, supra, 8 Conn. App.

81. Here, the defendant did not file a motion to modify

the unallocated alimony and child support order when

his son reached the age of majority.

It is axiomatic that the court has discretion in

determining the amount of alimony to be paid retroactively. See General Statutes § 46b-86 (a). We have

explained that a ‘‘retroactive award may take into

account the long time period between the date of filing

a motion to modify, or, with this case, the contractual

retroactive date, 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.’’ Zahringer v. Zahringer,

124 Conn. App. 672, 689, 6 A.3d 141 (2010).

Notwithstanding this broad discretion afforded to our

trial courts, the court here abused its discretion by

failing to provide a clear retroactivity order. In its first

memorandum of decision, it ‘‘declines’’ to apply its

order retroactively. In its second decision, by contrast,

the court applies its orders retroactively ‘‘to the [date

of] service of the motion for modification,’’ which was

February 9, 2012. That same order becomes unclear,
however, when later in the same paragraph of the same

memorandum of decision, the court states that it has

‘‘incorrectly declined to award retroactivity to the date

of majority,’’ but it was ‘‘correct[ing] that error.’’ There

was no further clarification.

Accordingly, we conclude that the court abused its

discretion by not entering a clear order as to the retroactivity of its modified alimony and child support order.

On remand, after it calculates the proper alimony

award, if any, the court must resolve the issue of retroactivity.

III

The defendant also claims that the court incorrectly

concluded that it lacked jurisdiction to terminate the

alimony. Specifically, he claims that because the hearings began in October, 2012, and the court found that

the college expenses constituted a substantial change

in circumstances, it had the authority to terminate alimony. We agree that the court had jurisdiction to terminate alimony.

In its final memorandum, the court made the following observation: ‘‘The defendant’s argument concerning

the termination of alimony is flawed. The separation

agreement specifically limits any modification of alimony to specific events. The court does not have jurisdiction to terminate alimony.’’ When the underlying

issue of the claim pertains to the jurisdiction of the

court, it is a question of law over which our review is

plenary. Tittle v. Skipp-Tittle, 161 Conn. App. 542, 549,

128 A.3d 590 (2015); see also Parker v. Commissioner

of Correction, 117 Conn. App. 727, 729, 980 A.2d 930,

(‘‘[o]ur standard of review is plenary when examining

whether jurisdiction exists’’), cert. denied, 294 Conn.

917, 983 A.2d 851 (2009).

General Statutes § 46b-1 provides that the Superior

Court has subject matterjurisdiction overlegal disputes

in ‘‘family relations matters,’’ including alimony; General Statutes § 46b-1 (4); and § 46b-86 (a) provides that

the court has continuing subject matter jurisdiction to

modify alimony orders. Amodio v. Amodio, 247 Conn.

724, 729, 724 A.2d 1084 (1999). ‘‘Together, therefore,

these two statutes provided the trial court with subject

matter jurisdiction over the modification claim in the

present case.’’ Id., 729–30.

In cases such as this one, where the parties have an

agreement, the court must determine whether it has

the statutory authority to act. ‘‘Separate and distinct

from the question of whether a court has jurisdictional

power to hear and determine a support matter, however, is the question of whether a trial court properly

applies § 46b-86 (a), that is, properly exercises its statutory authority to act. Section 46b-86 (a) authorizes the

court to modify support orders, [u]nless and to the

extent that the decree precludes modification . . . .’’
(Emphasis omitted; internal quotation marks omitted.)

Id., 730.

In the present case, the court confused the issues of

subject matter jurisdiction and the proper exercise of

its authority to act pursuant to § 46b-86 (a). Consequently, the court erred in interpreting the agreement

as depriving it of the jurisdiction to terminate alimony.

The agreement limited modification until July 1, 2012.

After that date, ‘‘upon a court of competent jurisdiction’s determination that there has been a substantial

change of circumstances,’’ the alimony could be modified. Although the defendant’s motion was served in

February, 2012, the court held hearings on the motion

starting in October, 2012. We take no position on

whether modification or termination of alimony was

warranted. We merely conclude that the court ‘‘had the

jurisdiction to entertain the claim for modification [or

termination of alimony]’’; Amodio v. Amodio, supra,

247 Conn. 732; and had the statutory authority to act.

IV

The defendant’s final claim is that the court abused its

discretion by finding him in contempt and by awarding

attorney’s fees and costs to the plaintiff. We address

each claim in turn.

A

We first address the defendant’s claim that the court

abused its discretion in finding him in contempt. The

following facts are necessary to resolve this claim. The

court found the defendant’s net monthly income to be

$58,269. It also found that the defendant was paying

$32,000 per month toward his children’s college

expenses. Pursuant to the unallocated alimony and

child support order, the defendant’s monthly financial

obligation to the plaintiff was $20,000. Deducting these

two liabilities from his net monthly income, $6269 was

left forthe defendantto pay his other monthly expenses.

The defendant testified that he stopped making the

$20,000 monthly payments in May, 2011, because ‘‘mathematically [he could not] afford it.’’

The court made several findings regarding the defendant’s real estate assets. On the basis of the defendant’s

October, 2012 financial affidavit, it found that the total

value of his real estate was approximately $8,800,000,

with unencumbered equity totaling $5,050,000. The

court also found that four of the five properties did

not have mortgages. Furthermore, the court found that

many of the defendant’s claimed expenses had been

voluntarily assumed. Ultimately, underthe first and second memoranda of decision, the court found the defendant in contempt because of his ‘‘wilful and intentional

violation of the court orders.’’ Specifically, the court

stated that the defendant had ‘‘avail[ed] himself of selfhelp’’ and found the defendant’s claim of an ‘‘inability

to pay to be without merit.’’ Although the court ordered
that the ‘‘arrearage which must be recalculated to

reflect the current arrearage accruing since December,

2012, as modified with retroactivity,’’ it made no recalculation nor did it explain why it selected December,

2012, as the start of accrual the period.

Before resolving the defendant’s claim, we set forth

the standard of review and relevant legal principles. ‘‘A

finding of contempt is a question of fact, and our standard ofreview is to determine whetherthe court abused

its discretion in [finding] that the actions or inactions

of the [alleged contemnor] were in contempt of a court

order. . . . To constitute contempt, a party’s conduct

must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . [T]he credibility of

witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact.

. . . We review the findings to determine whether they

could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did.’’25 (Internal quotation marks omitted.)

Norberg-Hurlburt v. Hurlburt, 162 Conn. App. 661, 669,

A.3d (2016).

‘‘[T]he credibility of witnesses, the findings of fact

and the drawing of inferences are all within the province

of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be

found, thereby establishing that the trial court could

reasonably have concluded as it did.’’ (Internal quotation marks omitted.) Lynch v. Lynch, 153 Conn. App.

208, 238–39, 100 A.3d 968 (2014), cert. denied, 315 Conn.

923, 108 A.3d 1124, cert. denied, U.S. , 136 S.

Ct. 68, 193 L. Ed. 2d 66 (2015).

Although ‘‘[c]ontempt is a disobedience to the rules

and orders of a court which has power to punish for

such an offense’’; (internal quotation marks omitted)

Brody v. Brody, 145 Conn. App. 654, 662, 77 A.3d 156

(2013); ‘‘[t]he inability of a party to obey an order of

the court, without fault on his part, is a good defense

to the charge of contempt. . . . The contemnor must

establish that he cannot comply, or was unable to do

so.’’ (Internal quotation marks omitted.) Id.

Applying these principles to this case, we conclude

that the court did not abuse its discretion in finding the

defendant in contempt. The record supports the court’s

findings, namely, that the defendant had substantial

equity in various real properties that he could have used

to raise funds to meet his alimony and child support

obligations. Having heard the defendant’s testimony,

the court was within its province to credit or not credit

that testimony. Nonetheless, in Connecticut, it is clear

that ‘‘[a]n order of the court must be obeyed until it has

been modified or successfully challenged.’’ (Internal

quotation marks omitted.) Sablosky v. Sablosky, 258

Conn. 713, 719, 784 A.2d 890 (2001). Therefore, ‘‘until

a motion is brought to and is granted by the court, that
party may be held in contempt in the discretion of the

trial court if, in the interim, the complaining party fails

to abide by the support order.’’ Id., 722. Our Supreme

Court repeatedly has advised parties against engaging

in self-help. See, e.g., id., 719–20. Failure to heed this

warning may be a sufficient ground for a party to be

held in contempt. See id., 720. The court ‘‘was entitled

to determine that to exonerate the [defendant] would

be an undue inducement to litigants’ exercise of selfhelp.’’ (Emphasis in original; internal quotation marks

omitted.) Id.

Although we affirm the finding of contempt, we cannot allow the court’s arrearage order to stand because,

after declaring that it must, the court never recalculated

the arrearage. Additionally, in light of our conclusions

in parts I and II of this opinion, to conclude otherwise

would not serve the interests of justice. See, e.g.,

Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757

(1998) (affirming contempt finding but reversing attorney’s fees award that was based on contempt finding).

On remand, the court must recalculate the arrearage

amount.

B

The following facts are necessary to resolve the

defendant’s claim that the court abused its discretion

in awarding attorney’s fees and costs to the plaintiff.

At the hearing, the plaintiff introduced, as a full exhibit,

an invoice of her attorney’s fees. After the hearing,

the plaintiff sought attorney’s fees and submitted her

counsel’s affidavit. In the affidavit, counsel averred that

he had spent 60.6 hours on the ‘‘plaintiff’s motion for

modification.’’ At his $400 hourly rate, the total fee

billed for this service was $24,240. Additionally, the

plaintiff’s counsel averred that he had spent 11.7 hours

‘‘[o]n the contempt motion’’ for a total fee of $4680.

Adding the two fees and total costs of $915.68 together,

the plaintiff sought a total of $29,835.68. After the court

found the defendant in contempt, it awarded the plaintiff $40,000 in attorney’s fees and $1016.18 in costs.

The following law and principles guides our analysis.

General Statutes § 46b-87 grants the courtthe discretion

to award attorney’s fees to the prevailing party in a

contempt proceeding.26 ‘‘The award of attorney’s fees

in contempt proceedings is within the discretion of the

court. . . . An abuse of discretion in granting the counsel fees will be found only if this court determines that

the trial court could not reasonably have concluded

as it did.’’ (Citation omitted; internal quotation marks

omitted.) Esposito v. Esposito, 71 Conn. App. 744, 748,

804 A.2d 846 (2002). Importantly, ‘‘where contempt is

established, the concomitant award of attorney’s fees

properly is awarded pursuant to § 46b-87 and is

restricted to efforts related to the contempt action.’’

Id., 749.
The record reveals that the court abused its discretion. The affidavit of the plaintiff’s counsel states that

counsel worked on a motion for contempt. In this case,

each party filed a motion for contempt. The affidavit

does not state how many of the 11.7 hours were spent

on each motion. Moreover, the affidavit unequivocally

states that the plaintiff’s counsel spent 60.6 hours on

the ‘‘plaintiff’s motion for modification,’’ which

accounts for most of the fee that was sought.(Emphasis

added.) The record shows that the plaintiff did not file

a motion to modify. Even if she had filed such a motion

and the court had found the defendant in contempt,

any attorney’s fees awarded to the plaintiff would be

‘‘restricted to efforts related to the contempt action.’’

Esposito v. Esposito, supra, 71 Conn. App. 749. Thus,

the court abused its discretion in its award of attorney’s

fees and costs. Accordingly, we vacate the award of

attorney’s fees and remand this matter to the court for

further proceedings in accordance with this opinion.

The judgment is reversed as to the court’s financial

orders and award of attorney’s fees and costs, and the

case is remanded for further proceedings consistent

with this opinion. The judgment is affirmed as to the

finding of contempt.

In this opinion the other judges concurred.

1 The plaintiff, Charlotte Malpeso, filed an appeal challenging the court’s

use of the child support and arrearage guidelines in determining the child

support amount from the original unallocated alimony and child support

order. She also claims that the court erred in its retroactivity order. The

plaintiff’s appeal was assigned docket number AC 37203. Upon a joint motion

to consolidate, this court granted the motion and AC 37203 was treated as

a cross appeal to AC 36622 for the purposes of briefing and argument. We

note that our resolution of the defendant’s claims also disposes of the

plaintiff’s cross appeal.

2 We do not address the defendant’s third claim. The record reveals that

the court did not place a lien on any real property. In other words, the

defendant was not aggrieved, which is a condition precedent for us to rule

on a matter. See General Statutes § 52-263 (right of appeal from Superior

Court if ‘‘either party is aggrieved by the decision of the court’’); see also

Practice Book § 61-1. Thus, we decline to accept the invitation to provide

an advisory opinion. See Nowacki v. Nowacki, 144 Conn. App. 503, 514, 72

A.3d 1245 (‘‘this court does not render advisory opinions’’), cert. denied,

310 Conn. 939, 79 A.3d 891 (2013).

3 The agreement stated in relevant part: ‘‘3.1 During the lifetime of the

[defendant] and until the death, remarriage or cohabitation of the [plaintiff],

whichever event shall first occur, the [defendant] shall pay to the [plaintiff]

as alimony, or separate maintenance for the support of the minor children

the sum of $20,000 per month.’’

4

In its entirety, the clause provided: ‘‘3.2 The amount and term of alimony

shall be modifiable only under the following circumstances:

‘‘(a) Upon a court of competent jurisdiction’s determination that the

[defendant] has become disabled as defined by the Social Security Administration orin the event that the economy of New York undergoes a substantial

change as a result of a catastrophic event (such as 9/11).

‘‘(b) After July 1, 2012, upon a court of competent jurisdiction’s determination that there has been a substantial change of circumstances as provided

for in Connecticut General Statute[s] § 46b-84a.

‘‘(c) The parties contemplate that the [plaintiff] may obtain full or parttime employment either before or after entry of a decree of dissolution.

Such employment shall not be deemed a substantial change in circumstances

during the first eight years of the alimony term.

‘‘(d) Only under the circumstances set forth in this paragraph 3.3 shall

the [defendant’s] obligation to pay alimony pursuant to paragraph 3.1 be

modifiable during the first eight years.’’

Paragraph 3.3 provided: ‘‘The parties shall endeavor to negotiate child
support if alimony terminates while any child or children are minors. If they

are unable to agree, the amount of child support to be paid by the [defendant]

[it] shall be determined by a court of competent jurisdiction. Child support

payments shall be retroactive to the last day on which alimony was paid.’’

5 The agreement provided in relevant part: ‘‘10.2 The [defendant] shall

be responsible for payment of the costs of undergraduate college and/or

vocational educational expenses for the three minor children. For purposes

of this subparagraph, said undergraduate college educational expenses shall

include, room, board, books, tuition, fees and a reasonable travel allowance

to [and] from home. Said expenses shall also include college application

fees and costs, the costs of SAT preparation courses and the costs ofrequired

pre-college tests.’’

6 At the hearing for the second motion, the defendant elaborated that his

financial difficulties stemmed from pending litigation concerning his dental

practice and significant damage caused by Hurricane Sandy on his primary

residence. The defendant argued that, collectively, the litigation and repairs

would reduce his income.

7

In Malpeso v. Malpeso, 140 Conn. App. 783, 788–89, 60 A.3d 380 (2013),

we held that the child support encompassed within the unallocated alimony

and support order was not subject to paragraph 3.2 of the parties’ agreement

that limited the modification of the alimony.

Before this court’s reversal of Judge Wenzel’s ruling on the defendant’s

amended motion to modify alimony and child support filed in August, 2011,

the defendant filed his second motion to modify alimony and child support

on January 25, 2012. Neither party raised or briefed the vitality of the August,

2011, amended motion. Moreover, Judge Schofield explicitly addressed, inter

alia, the defendant’s second motion to modify alimony and child support

filed in January, 2012. Therefore, we do not address the 2011 amended

motion and focus exclusively on the operative motion, the defendant’s second motion to modify alimony and child support from which this appeal

was taken.

8 The court did not explain its reasons for rounding down to $8000.

9 The court provided the parties with its calculations. On the basis of the

record, it is clear that the court relied on the parties’ current financial

affidavits. Specifically, it attributed $15,000 net income per month to the

plaintiff and $58,269 net income per month to the defendant. Thus, the

court calculated the plaintiff’s net weekly income to be $3488.37 and the

defendant’s net weekly income to be $13,550.93.

10 For reference, the court appended an undated, handwritten excerpt of

the guidelines.

11 We note that the court did not expressly state that the defendant’s new

monthly obligation was $11,138. This amount was calculated by applying

the court’s order, i.e., multiplying $2061 by four weeks ($8862) and subtracting that amount from $20,000.

12 General Statutes § 46b-84 (d) provides: ‘‘In determining whether a child

is in need of maintenance and, if in need, the respective abilities of the

parents to provide such maintenance and the amount thereof, 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.’’

13 ‘‘To the extent that this task requires us to interpret the meaning and

application of the relevant statutes [and regulations] in relation to the facts

of the case, our analysis is guided by General Statutes § 1-2z, which directs

us first to consider the text of the statute itself and its relationship to other

statutes. If, after examining such text and considering such relationship,

the meaning of such text is plain and unambiguous and does not yield absurd

or unworkable results, extratextual evidence of the meaning of the statute

shall not be considered.’’ (Internal quotation marks omitted.) Tomlinson v.

Tomlinson, supra, 305 Conn. 546–47.

14 All references to the guidelines are made to the guidelines effective

August 1, 1999, which were the applicable guidelines at the time of the

parties’ 2004 dissolution proceedings.

15 We note that the combined net weekly income ceiling was increased

to $4000 in the 2005 guidelines. See Child Support and Arrearage Guidelines

(2005), preamble, § (b) (4), p. ii.

16 From the 1999 guidelines, only the deviation criteria delineated in the

guidelines may be used, and the six criteria are as follows: (1) ‘‘[o]ther

financial resources available to a parent’’; (2) ‘‘[e]xtraordinary expenses for

care and maintenance of the child’’; (3) ‘‘[e]xtraordinary parental expenses’’;
(4) ‘‘[n]eeds of a parent’s other dependents’’; (5) ‘‘[c]oordination of total

family support’’; and (6) ‘‘[s]pecial circumstances.’’ Regs., Conn. State Agencies § 46b-215a-3. The sixth criteria provides, inter alia, that the court may

consider the ‘‘[b]est interests of the child,’’ and ‘‘[o]ther equitable factors.’’

Id., § 46b-215a-3 (6) (B) and (C). We note that in 2005, just over a year after

the parties entered into the agreement, the guidelines were amended to add

another consideration to the sixth criterion, ‘‘[e]xtraordinary disparity in

parental income.’’ See Child Support and Arrearage Guidelines (2005), preamble, § (b) (9), p. ii.

17 General Statutes § 46b-86 (a) 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 that 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 . . . .’’

18 In Borkowski, the certified question on appeal was, ‘‘When a party

files a motion to modify which seeks termination of alimony after a prior

modification of alimony, may the trial court consider any change of circumstances arising since the date of the original decree?’’ (Emphasis added;

internal quotation marks omitted.) Borkowski v. Borkowski, supra, 228

Conn. 732–33.

19 The 1999 guidelines set the presumptive minimum for three children

whose parents’ combined net weekly income is $2500 at $684 per week.

See Regs., Conn. State Agencies § 46b-215a-2a (f).

20 ‘‘It is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as

a contract and construed in accordance with the general principles governing

contracts. . . . When construing a contract, we seek to determine the intent

of the parties from the language used interpreted in the light of the situation

of the parties and the circumstances connected with the transaction. . . .

[T]he intent of the parties is to be ascertained by a fair and reasonable

construction of the written words and . . . the language used must be

accorded its common, natural, and ordinary meaning and usage where it

can be sensibly applied to the subject matter of the contract. . . . When

only one interpretation of a contract is possible, the court need not look

outside the four corners of the contract. . . . Extrinsic evidence is always

admissible, however, to explain an ambiguity appearing in the instrument.’’

(Citations omitted; emphasis omitted; internal quotation marks omitted.)

Isham v. Isham, supra, 292 Conn. 180–81.

21 General Statutes § 46b-82 (a) 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 and

the award, if any, which the court may make pursuant to section 46b-81,

and, in the case of a parent to whom the custody of minor children has

been awarded, the desirability and feasibility of such parent’s securing

employment.’’

22 The scope of that hearing is limited. As discussed, when the alimony

order is determined from the original unallocated alimony and child support

order, the court will need to consider the financial resources of the defendant. This necessarily implicates considering the impact of the college

expenses on his ability to pay any new alimony award. See generally Greco

v. Greco, 275 Conn. 348, 361, 880 A.2d 872 (2005) (‘‘defendant’s ability to pay

is a material consideration in formulating financial awards’’). This evaluation,

however, does not require the court to revisit the college expense order

and modify it. Moreover, the limited scope of the hearing, in this case, does

not require a court to reconsider long settled property distribution amongst

the parties.

23 General Statutes § 46b-66 provides in relevant part: ‘‘(a) In any case

under this chapter where the parties have submitted to the court an

agreement concerning the custody, care, education, visitation, maintenance

or support of any of their children or concerning alimony or the disposition
of property, the court shall inquire into the financial resources and actual

needs of the spouses and their respective fitness to have physical custody

of or rights of visitation with any minor child, in order to determine whether

the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become

part ofthe courtfile, and ifthe agreementis in writing, it shall be incorporated

by reference into the order or decree of the court. . . . If the agreement

is in writing and provides for the care, education, maintenance or support

of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same

extent as any other provision of such order or decree, notwithstanding the

provisions of section 1-1d.

‘‘(b)Agreements providing forthe care, education, maintenance or support

of a child beyond the age of eighteen entered into on or after July 1, 2001,

shall be modifiable to the same extent as any other provision of any order

or decree in accordance with section 46b-86. . . .’’

24 This court has also commented that ‘‘[i]n 1990 . . . the Connecticut

legislature passed an amendment to § 46b-86 (a) that provided, inter alia,

that ‘[n]o order for periodic payment of permanent alimony or support may

be subject to retroactive modification, except that the court may order

modification with respect to any period during which there is a pending

motion for modification of an alimony or support order from the date of

service of notice of such pending motion upon the opposing party pursuant

to section 52-50.’ . . . This amendment permitted the retroactive modification of alimony awards back to the date of the motion to modify.’’ (Citation

omitted; emphasis omitted.) Milbauer v. Milbauer, 54 Conn. App. 304, 310,

733 A.2d 907 (1999).

25 Findings of indirect civil contempt must be supported by clear and

convincing evidence. Brody v. Brody, 315 Conn. 300, 302–303, 105 A.3d 887

(2015). Here, the defendant characterizes the court’s findings as inconsistent,

namely, the court’s finding that his conduct was wilful juxtaposed against

the court’s determination that he ‘‘convincingly [testified] that he believed

that once he assumed the college expense obligations . . . his unallocated

alimony and support payment would be reduced.’’ The defendant points to

these findings as confirmation that the court’s finding of contempt was not

supported by clear and convincing evidence as required by Brody. We need

not address this argument for two reasons. The court made several other

findings, i.e., the defendant’s real estate assets, to support its finding of

contempt. Moreover, the defendant, in his brief, does not analyze if the clear

and convincing standard applies retrospectively, and we will not endeavor

to do so. See Denardo v. Bergamo, 272 Conn. 500, 508, 863 A.2d 686 (2005).

26 General Statutes § 46b-87 provides in relevant part: ‘‘When any person

is found in contempt of an order of the Superior Court entered under . . .

section 46b-86, the court may award to the petitioner a reasonable attorney’s

fee . . . such sums to be paid by the person found in contempt . . . .’’