FAMILY LAW: Connecticut Supreme Court holds that Court can modify child support despite agreement that support would be nonmodifiable

In a ruling released on June 26, 2012, the Connecticut Supreme Court states in part:

McLACHLAN, J. The principal issue in this appeal is whether a trial court may modify unallocated alimony and child support payments following a change in the primary physical custody of the minor children from the party receiving the unallocated payments to the party making the payments, when the dissolution judgment incorporated a provision in the separation agreement providing that such payments are nonmodifiable. The defendant, John A. Tomlinson, appeals from the judgment of the Appellate Court reversing the judgment of the trial court granting his motion to modify the order that he make unallocated alimony and child support payments to the plaintiff, Debra Tomlinson, following the parties’ decision to transfer primary physical custody of the children from the plaintiff to the defendant two years after the judgment dissolving their marriage was rendered. Tomlinson v. Tomlinson, 119 Conn. App. 194, 196, 986 A.2d 1119 (2010). On appeal, the defendant claims that the Appellate Court improperly determined that the trial court had no authority to modify the unallocated alimony and child support order (unallocated order) in the present case because, he argues, a trial court may always modify child support upon consideration of the children’s best interests in spite of explicit language in a separation agreement prohibiting modification. Under the particular circumstances of the present case, we conclude that the trial court had the authority to modify the defendant’s child support obligation, and, accordingly, we reverse the judgment of the Appellate Court.

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‘‘Paragraph 2.1 of the [separation] agreement provides in relevant part: ‘Commencing the first day of the week following the [plaintiff’s] removal from the residence at 1158 West River Street, Milford, Connecticut . . . the [defendant] agrees to pay to the [plaintiff] unallocated periodic alimony and child support, until June 30, 2018, or until her death, remarriage, or cohabitation pursuant to [General Statutes] § 46b-86 (b),whichever shall first occur, the sum of Seventy Two Thousand Dollars ($72,000.00) per year or One Thousand Five Hundred Dollars ($1,384.00) per week. 1 THE UNALLOCATED PERIODIC [ALIMONY] AND CHILD SUPPORT SHALLBE [NONMODIFIABLE]IN AMOUNT AND TERM OF PAYMENTS EXCEPT AS NOTED ABOVE’ [nonmodification provision]. The only exceptions ‘noted above’ in the agreement are those contained within paragraph 2.1 itself. The final sentence of the paragraph is the only portion of the separation agreement typed entirely in capital letters. The parties did not incorporate into their agreement any provision permitting modification of the [unallocated order] if primary custody of the children changed.

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Thus, while § 46b-86 (a) addresses the modification of child support in general, § 46b-224 covers the particular effect of a change in custody on preexisting child support orders. Notably, unlike § 46b-86 (a), § 46b-224 does not expressly except from its scope support orders that contain nonmodification provisions. Rather, the plainlanguage of § 46b-224 provides that ‘’[w]henever’’ (1) the trial court orders ‘‘a change or transfer of the guardianship or custody of a child who is the subject of a preexisting support order,’’ and (2) ‘‘the court makes no finding with respect to such support order,’’ then the custody order ‘‘shall operate to . . . [s]uspend the support order . . . or . . . modify the payee of the support order . . . .’’ (Emphasis added.) General Statutes § 46b-224. 7 Use of the term ‘‘whenever’’ indicates that the statute applies every time in which the two specified conditions are met without other restriction. Similarly, the use of the term ‘‘shall’’ denotes a mandatory term, suggesting that the suspension or redirection of support occurs by operation of law. See Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 153, 561 A.2d 1373 (1989) (when legislature has used word ‘‘shall,’’ ‘’f it is a matter of convenience, the statutory provision is directory; if it is a matter of substance, the statutory provision is mandatory’‘). Together, this language signifies that § 46b-224 is invoked upon satisfaction of the two specified conditions automatically, without reference to any other factor such as the parties’ agreement.

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To hold that the provision in § 46b-86 (a) permitting modification ‘’nless and to the extent that the decree precludes modification’’ supersedes § 46b-224 would violate these rules of statutory construction. As we previously observed, § 46b-224 clearly addresses the distinct factual scenario of a change in custody. In contrast, the language of § 46b-86 (a) is broad enough to encompass all cases in which a change in the support order is contemplated. Therefore, the more specific language of § 46b-224 prevails over the more general terms of § 46b-86 (a), even though the latter deals with the same overall subject matter. Moreover, because the legislature enacted § 46b-224 after § 46b-86 (a), § 46b-224 represents the more recent expression of the legislative will. 8 To the extent that the application of the specific language of § 46b-224 to suspend or modify a support order that purports to preclude modification appears to conflict with the general language of § 46b-86 (a), we conclude that § 46b-224 must prevail.

For more information on the case quoted in part above see

http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR305/305CR67.pdf