DEBRA TOMLINSON v. JOHN A. TOMLINSON, SC 18586

Judicial District of Ansonia-Milford

 Dissolution of Marriage; Child Support; Whether the Appellate Court Properly Reversed the Trial Court's Modification of Child Support on the Ground that the Dissolution Judgment Incorporated a Separation Agreement Provision Stating that Unallocated Alimony and Child Support Payments were Nonmodifiable.  The trial court dissolved the parties' marriage and incorporated their separation agreement by reference into its judgment.  The separation agreement provided that the defendant would pay the plaintiff unallocated periodic alimony and child support, which would be nonmodifiable in amount and term of payments except in the event of the plaintiff's death, remarriage or cohabitation.  The parties subsequently agreed that primary physical custody of the children would be transferred from the plaintiff to the defendant, and the defendant then moved to modify the unallocated alimony and child support order on the ground that custody had changed.  The plaintiff opposed the motion, arguing that the terms of the separation agreement precluded the modification.  In granting the defendant's motion, the trial court indicated that the provisions of the separation agreement demonstrated the parties' clear contemplation of a future change in the unallocated support order.  It further stated that the change in custody constituted a substantial change in circumstances.  The plaintiff appealed to the Appellate Court (119 Conn. App. 194), which reversed the trial court's ruling modifying the support order.  The Appellate Court stated that the clear and unambiguous language of the separation agreement prohibited future modification of the unallocated alimony and child support order except for certain enumerated reasons, none of which were present.  It further stated that the parties were free in negotiating the terms of the separation agreement to bargain for a term allowing the unallocated alimony and support order to be modified upon a change in physical custody, but they did not do so.  Moreover, it recognized that instances may arise in which a trial court must modify a facially nonmodifiable separation agreement as to child support in order to protect the children's interest in receiving material support from their parents, but it concluded that such circumstances were not present.  It stated that the defendant provided the court with no evidence that the support needs of the children were unmet or even diminished as a result of the change in their physical custody, or because of the order requiring the defendant to pay unallocated alimony and support to the plaintiff.  In this appeal, the Supreme Court will review the Appellate Court's ruling.