“Nonmodifiable,” Unallocated Support Award Deemed Modifiable Upon a Change of Primary Residence

The Connecticut Supreme Court held that child support orders may be modified upon a change in primary residence, even where a separation agreement contains language expressly precluding such modification.  In this particular case, the parties are the parents of two minor children.  Following their divorce, the children lived with the mother on a primary basis.  With respect to financial support, the parties’ separation agreement provided that the husband would pay unallocated periodic alimony and child support to the mother for a designated period of time.  The agreement further provided that the unallocated support would be nonmodifiable as to both amount and term.  Notably, the agreement did not permit modification upon a change in primary residence of the children.

At some point after the dissolution, the parties agreed to transfer primary physical custody of the children to the father.  Shortly thereafter, the father filed a motion to modify the unallocated alimony and child support award based on the change in primary residence.  The mother opposed the motion, however, claiming that the parties’ separation agreement expressly precluded modification.

At the trial court level, the father testified that since the children moved into his home on a primary basis, he had been covering additional expenses including cellular telephone bills, extra-curricular activities, entertainment and transportation for the children.  Although neither party presented evidence to suggest that the children’s needs were not being met, and despite the aforementioned language precluding modification, the court held that the unallocated order was modifiable.  When the Connecticut Appellate Court disagreed, the father appealed to the Connecticut Supreme Court.

The Connecticut Supreme Court concluded that where primary physical custody is transferred from a child support recipient to a child support payor, a provision precluding modification of an unallocated financial award does not in fact prevent modification of the child support component.  In reaching its decision, the Court relied primarily on C.G.S. § 46b-224, which essentially provides that whenever the Superior Court orders a change in custody of children who are the subject of preexisting support orders, such change in custody shall operate to suspend the support order if custody is transferred to the child support obligor, or modify the designated payee of the support order to be the person awarded guardianship or custody.  In other words, as the Court explained, “if the obligor becomes the new primary custodial parent, the obligor is no longer required to pay child support to the former custodian.”  Tomlinson v. Tomlinson, 305 Conn. 529 (2012).  The Court further articulated, “…the originally designated payee who no longer has custody of the child does not continue to receive support payments following the change in custody, and the payments are retained by or redirected to the party who does have custody.”  Id.  The Court further held that C.G.S. § 46b-224 operates automatically regardless of the terms of a separation agreement.

By: Michael D. DeMeola, Esq.

Should you have any questions regarding child support modifications, or divorce related matters in general, please feel free to contact Attorney Joseph Maya  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at JMaya@mayalaw.com.
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