BEAR, J.
The plaintiff, Sandy D. McRae, appeals from the judgment of the trial court, Hon. Herbert Barall, judge trial referee, granting the motion of the defendant, Scott A. McRae, to modify periodic alimony payable to the plaintiff. On appeal, the plaintiff claims that the trial court improperly (1) based its decision on the defendant's present earnings rather than his earning capacity, (2) modified alimony despite the defendant's failure to proffer evidence of a substantial change in circumstances, (3) failed to maintain a parity of income and (4) lowered the defendant's weekly alimony payments predicated on the ordered arrearage payments. We affirm the judgment of the trial court.
The following facts are relevant to our resolution of the issues on appeal. On October 5, 2009, the court, Hon. John R. Caruso, judge trial referee, rendered judgment dissolving the marriage of the parties. The court valued the defendant's business at $144,000, but had considerable difficulty valuing the plaintiff's business because she did some of her business in cash and through bartering. The court stated that it was dividing the parties' total assets equally. The court made a finding, on the basis of the evidence presented, that the plaintiff had an annual earning capacity of $50,000, and the defendant had an annual earning capacity of $100,000. The court ruled that alimony was to be modifiable as to amount because it was unsure of how successful either business would be, and it explained that if there was a substantial change in the circumstances of either party, a motion for modification could be filed. The court ordered the defendant to pay to the plaintiff the sum of $500 per week for the first three years following the judgment of dissolution and, thereafter, to pay $250 per week for the following seven years. The court also explained that it recognized that the defendant's annual "income [was] a moving target but [that] the orders that [it was] entering [were] based upon [$50,000 and
The defendant's attorney asked Judge Caruso for clarification regarding the alimony amount because the defendant expected to earn only $65,000 in 2009. The court stated that if the defendant's earning capacity turned out to be other than $100,000, counsel could seek a modification.
Following six days of hearings on the defendant's motion to modify, as well as on other motions that are not the subject of this appeal, Judge Barall issued a decision granting the motion to modify. The court explained: "Judge Caruso actually found Mr. McRae had an earning capacity of $100,000 and he had — and he found that Mrs. McRae had an earning capacity of [$50,000].
"Well, reality set in, according to both of your last affidavits. And I'm going on the basis of the affidavits, but also on the basis of your income tax returns for the year 2010. And, essentially, I find that, Mr. McRae, yours is closer to $50,000, and yours [Mrs. McRae,] is closer to $20,000. That's a substantial difference. And so I am going to modify the order ... effective to the last filing of the motion to modify...."
The court then ordered alimony reduced to $75 per week and it ordered the defendant also to pay $75 per week on the arrearage that had accumulated. The court stated that the defendant had been paying the plaintiff approximately $150 per week for quite some time and that this was a reasonable amount based on the defendant's net income of approximately $600 per week. The court ended its decision by explaining: "That's the decision of the court. As I said, I don't expect anybody to be 100 percent happy [with] that, but nobody's happy earning the amounts of money that they're earning and obviously did earn. And, basically, I looked at the taxes for last year. That's a whole year. You know, you can have ups and downs, but neither party was receiving any income anywhere near [what] was predicted. So much for predictions. I will tell you, this court, certainly in the last year and a half, has made no decisions finding people's
Following the court's decision, the plaintiff, on August 15, 2011, filed a motion to reargue, claiming that the court had failed to find a substantial change in circumstances to warrant a modification of alimony and that the court failed to maintain a parity of income as anticipated by the dissolution judgment. Judge Barall denied that motion on September 8, 2011, explaining that after he had examined the parties' tax returns and their testimony, he found that there had been a substantial change in circumstances because neither party was earning anything close to what Judge Caruso had projected to be their earning capacity. This appeal followed.
On appeal, the plaintiff first claims that the trial court improperly based its decision to modify alimony on the defendant's present earnings rather than his earning capacity, which was the measure utilized by the dissolution court. Essentially, the plaintiff argues that the court failed to find a substantial change in circumstances, and, instead, simply utilized a different measure to determine alimony, namely, the defendant's current earnings rather than his earning capacity. We are not persuaded.
We review the court's judgment granting a motion to modify alimony payments under an abuse of discretion standard. "An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... 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.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 372, 999 A.2d 721 (2010).
"To obtain a modification [of alimony], 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. In making such an inquiry, the trial court's discretion is essential. 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 only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties." (Internal quotation marks omitted.) Bruno v. Bruno, 132 Conn.App. 339, 345-46, 31 A.3d 860 (2011), quoting Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994).
The plaintiff argues that the court "erred in this case by applying the wrong legal standard. Rather than applying the
In considering the defendant's motion to modify alimony, Judge Barall conducted six days of hearings, heard substantial testimony and received many exhibits. He stated that he took into consideration the evidence presented and concluded that there had been a substantial change in circumstances. Specifically, Judge Barall explained: "Judge Caruso actually found Mr. McRae had an earning capacity of $100,000 and he ... found that Mrs. McRae had an earning capacity of [$50,000].
After reviewing the court's decision, we conclude, on the basis of the preceding language, that the court reviewed the decision of the dissolution court, set forth the findings of the dissolution court as to the parties' earning capacities at the time of the dissolution and then concluded that the parties' earning capacities were significantly lower than that set forth by Judge Caruso. Accordingly, after reviewing the court's decision, we are not persuaded by the plaintiff's contention that, when considering whether there had been a substantial change in circumstances, the court used an improper standard by failing to consider the parties' current earning capacities as compared to their previous earning capacities as determined by the dissolution court.
The plaintiff claims that the court improperly modified the defendant's alimony obligation despite the defendant's failure to proffer evidence of a substantial change in circumstances. We are not persuaded.
"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, the applicable provision of the statute is § 46b-86 (a), 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.... Alimony decrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted.... In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties.... 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
The plaintiff argues that there was no evidence of a substantial change in circumstances because "[t]he defendant's [current] financial affidavit showed no change from the 2009 financial affidavit considered by Judge Caruso." On the one hand, the plaintiff argues that the court did not use the parties' earning capacities to determine whether there had been a substantial change in circumstances, but, on the other hand, she argues that the court did not compare current financial affidavits with previous financial affidavits, thereby looking at earnings rather than earning capacity. Although we agree that the evidence shows no significant change in the defendant's actual income, as we concluded in part I of this opinion, the court found a substantial change in the parties' earning capacities, not in their actual incomes. Accordingly, we conclude that there is no merit to this claim.
The plaintiff also claims that the court improperly failed to maintain a parity of income. She argues that the dissolution court designed its financial package so that the income of the parties was in parity. She contends that Judge Barall was required to assure that the parties' incomes remained in parity. We conclude that the court was not required to maintain a parity of income in setting forth a modified alimony award.
"[O]nce a party has met his or her burden under either § 46b-86 (a) or (b), the court then should apply the factors of [General Statutes] § 46b-82 to fashion a new alimony award.
Here, the plaintiff claims only that Judge Barall was required to maintain a parity of income because the dissolution court had entered an alimony order resulting
The plaintiff's final claim is that the court improperly lowered the defendant's weekly alimony payments predicated on the ordered arrearage payments.
"Retroactive modifications of support orders are ordinarily impermissible.... With the exception of the period following service of a motion for modification, [n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification...." (Citation omitted; internal quotation marks omitted.) Favrow v. Vargas, 231 Conn. 1, 40-41, 647 A.2d 731 (1994). "The power of the trial court to modify orders of support and alimony is ... a creature of statute. General Statutes § 46b-86. Nothing in our statute regarding modification of alimony and support can be construed as authorizing retroactive modification. Such a construction has been expressly disavowed by our Supreme Court." Trella v. Trella, 24 Conn.App. 219, 221, 587 A.2d 162, cert. denied 219 Conn. 902, 593 A.2d 132 (1991). Simply stated, "alimony already accrued may not be modified." (Internal quotation marks omitted.) Mihalyak v. Mihalyak, 30 Conn.App. 516, 520, 620 A.2d 1327 (1993).
Recognizing that orders for alimony cannot be modified retroactively, with an exception for that period following service of a proper motion, we must determine whether the action taken by the court in
The plaintiff posits that the following statements by the court demonstrate that it lowered the defendant's alimony obligation so that the defendant's entire payment to the plaintiff would be $150 per week, thereby effectively eliminating the arrearage: "So the $75 will be — essentially, will be what [the defendant] has been paying for some time, about $150 a week. And if that's — and assuming that he's earning about net after deductions about $600-and-something-plus per week, that's a reasonable amount to pay on that arrearage." The plaintiff also points to the following language in the court's decision on her motion to reargue: "The court found an arrearage but did not find the defendant in contempt for his failure to pay because of lack of capacity. The court entered an arrearage payment so that the defendant would pay $150 per week in total for both the alimony and the arrearage payment. This leaves the parties in a comparable position considering both of their incomes." We are not persuaded that the record evinces an improper retroactive modification of alimony by the court.
In addition to the language relied on by the plaintiff, in determining the specific payments for alimony and the defendant's arrearage, the court also stated: "And so what I'm going to be doing, essentially, is I'm going to reduce alimony to $75 per week. I'm [also] going to order $75 per week on the arrearage. It will take about seven years to pay that arrearage."
The judgment is affirmed.
In this opinion the other judges concurred.