Mountain v. Mountain

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
JOHN A. MOUNTAIN v. HEIDI L. MOUNTAIN
(AC 41041)
Sheldon, Keller and Bear, Js.

Syllabus

The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the trial court’s denial of his second
postjudgment motion for modification of his unallocated alimony and
child support obligation to the defendant. The dissolution judgment,
which had incorporated the parties’ separation agreement, referred to
the plaintiff’s ability to borrow funds from several sources, including
his current wife, to meet his financial obligations to his minor children
and to the defendant. In the plaintiff’s first motion to modify his unallo-
cated alimony and child support obligation, he claimed that there had
been a substantial change in circumstances because, inter alia, he and
his current wife had been paying directly for the vast majority of the
expenses for the minor children, his income had decreased since the
date of dissolution, he no longer had the ability to borrow money to
satisfy his unallocated alimony and support obligation, and he was
spending more time with the children than he had been at the time of
dissolution. The plaintiff did not appeal from the trial court’s denial of
that motion. In the plaintiff’s second motion to modify his unallocated
alimony and child support obligation, he alleged that there had been a
substantial change in circumstances since the denial of the first motion
to modify. The only change in circumstances that he alleged in the
second motion was that he was no longer able to borrow money to
meet his financial obligations to the children and to the defendant. The
trial court determined that although the plaintiff no longer had the
ability to borrow funds from certain sources that were referred to in
the separation agreement, he failed to meet his burden of proof to show
that he no longer had the ability to borrow funds from his current
wife. On appeal to this court, the plaintiff asserted that the trial court
improperly rejected his claim that there had been a substantial change
in circumstances due to a decrease in his income, an increase in his
parenting time and the loss of his ability to borrow money from his
current wife to satisfy his financial obligations to the defendant. Held
that the trial court did not err in finding that there had been no substantial
change in the plaintiff’s circumstances to support a modification of his
unallocated alimony and child support obligation: the plaintiff’s claims
that there had been a substantial change in circumstances on the basis
of the alleged decrease in his income or increase in his parenting time,
which had been addressed and rejected by the trial court in its denial
of his first motion to modify, were not raised in his second motion to
modify and, thus, the trial court properly declined to address them in
ruling on that motion and they were not properly before this court;
moreover, the plaintiff’s claim that the court erred in finding that he
had failed to prove that he was no longer able to meet his financial
obligations to the defendant by borrowing money from his current wife
was not reviewable, the plaintiff having failed to brief the claim ade-
quately, and even if he had properly briefed that claim, the court’s
rejection of it was well supported by its unchallenged factual finding
that he continued to borrow money from his current wife to meet his
financial obligations since the date that he filed his second motion
to modify.
Argued January 14—officially released April 9, 2019

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Danbury and tried to the court, Winslow, J.;
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Hon. Sidney Axelrod,
judge trial referee, granted in part the plaintiff’s motion
to modify custody of the parties’ minor children, and
denied the plaintiff’s motion to modify alimony and
child support, and the plaintiff appealed to this court.
Affirmed.
John A. Mountain, self-represented, the appellant
(plaintiff).
Opinion

SHELDON, J. The plaintiff, John A. Mountain, appeals
from the judgment of the trial court denying his post-
judgment motion to modify his unallocated alimony
and child support obligation to the defendant, Heidi L.
Mountain, pursuant to the judgment dissolving their
marriage. The plaintiff claims that the court erred in
finding that he failed to prove that there was a substan-
tial change in circumstances warranting such a modifi-
cation. We affirm the judgment of the trial court.
The marriage of the parties, who share four minor
children, was dissolved on January 9, 2014. The court
approved the separation agreement and the parenting
plan filed by the parties, and incorporated them into
the judgment of dissolution. The judgment provided,
inter alia, that the parties would share joint legal and
physical custody of their four children and that the
children’s primary physical residence would remain at
the marital home in Ridgefield, with the defendant. The
plaintiff agreed to pay the defendant the sum of $6700
per month as unallocated alimony and child support
for a term of nine years beginning on February 1, 2014.
The judgment provided: ‘‘The [plaintiff]’s obligation to
pay alimony and child support at the rate stated above
is conditioned upon his current financial and personal
opportunities and his ability to borrow the funds neces-
sary to meet his obligations. Any significant change in
these circumstances warrants a substantial change of
circumstances.’’1
On March 13, 2015, the plaintiff filed a motion to
modify custody of the minor children due to his reloca-
tion from Westport to Weston. By way of memorandum
of decision filed October 29, 2015, the court found that
there had been a substantial change in circumstances
due to the plaintiff’s relocation to Weston, but it denied
the plaintiff’s request to modify the children’s primary
residence to Weston. Instead, it modified the parties’
parenting plan to afford the plaintiff additional time
with the children.
Also on March 13, 2015, the plaintiff filed a motion
to modify his unallocated alimony and child support
obligation, wherein he claimed that there had been a
substantial change in circumstances for the following
reasons: his income had decreased since the date of
dissolution; he no longer had the ability to borrow
money to satisfy his unallocated alimony and support
obligation; he was spending more time with the children
than he had been at the time of dissolution; he and
his current wife had been paying directly for the ‘‘vast
majority of the expenses for the minor children such
as clothes, camp, therapy, and activities,’’ although the
separation agreement entered into at the time of disso-
lution contemplated that those expenses would be paid
by the defendant; the defendant was cohabiting; and
the defendant was working and earning more income
than she had been at the time of dissolution. By memo-
randum of decision filed February 1, 2016, the court
rejected all of the plaintiff’s claims and denied his
motion to modify.
On July 8, 2016, the plaintiff filed a second motion
to modify his unallocated alimony and child support
obligation, claiming that there had been a substantial
change in circumstances since the denial of his previous
motion to modify on February 1, 2016. Apart from recit-
ing the actions he had taken to satisfy his financial
obligations since the denial of his previous motion to
modify, the only change in circumstances that the plain-
tiff alleged in his second motion to modify was that he
was no longer able to borrow money to meet those obli-
gations.
By way of memorandum of decision filed October
24, 2017, following an evidentiary hearing, the court
denied the plaintiff’s motion to modify. The court
explained that the dissolution judgment ‘‘refers to [the
plaintiff’s] ability to borrow funds necessary to meet
his obligations from [his current wife], the Jim Torrey
Fund, and his parents . . . .’’ The court found that the
plaintiff no longer had the ability to borrow funds from
the Jim Torrey Fund or from his parents, but that he
had ‘‘failed to meet his burden of proof that he no longer
has the ability to borrow funds from [his current wife].’’
The court based that determination on the fact that the
plaintiff had, in fact, borrowed money from his current
wife to satisfy his financial obligations to the defendant
since the date that he filed his second motion to modify
in which he claimed that he had lost that ability. This
appeal followed.
‘‘Modification of . . . support is governed by Gen-
eral Statutes § 46b-86 (a), which provides in relevant
part: Unless and to the extent that the decree precludes
modification, any final order for the periodic payment
of . . . support . . . may, at any time thereafter, be
continued, set aside, altered or modified by the court
upon a showing of a substantial change in the circum-
stances of either party . . . .
‘‘We previously have explained the specific method
by which a trial court should proceed with a motion
brought pursuant to § 46b-86 (a). When presented with
a motion for modification, a court must first determine
whether there has been a substantial change in the
financial circumstances of one or both of the parties.
. . . Second, if the court finds a substantial change in
circumstances, it may properly consider the motion
and, on the basis of the . . . [General Statutes] § 46b-
82 criteria, make an order for modification. . . . The
court has authority to issue a modification only if it
conforms the order to the distinct and definite changes
in the circumstances of the parties. . . . Simply put,
before the court may modify . . . [a child support
order] pursuant to § 46b-86, it must make a threshold
finding of a substantial change in circumstances with
respect to one of the parties.
‘‘The party seeking the modification has the burden
of proving a substantial change in circumstances. . . .
To obtain a modification, the moving party must demon-
strate 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 modifi-
cation of the existing order. In making such an inquiry,
the trial court’s discretion is essential.’’ (Internal quota-
tion marks omitted.) Bolat v. Bolat, 182 Conn. App. 468,
475–76, 190 A.3d 96 (2018).
‘‘[W]e will not disturb the trial court’s ruling on a
motion for modification of alimony or child support
unless the court has abused its discretion or reasonably
could not conclude as it did, on the basis of the facts
presented. . . . Furthermore, [t]he trial court’s find-
ings [of fact] are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Becue v. Becue, 185 Conn. App.
812, 832, 198 A.3d 601 (2018), cert. denied, 331 Conn.
902, A.3d (2019).
On appeal, the plaintiff claims that the court erred
in denying his second motion to modify because it
improperly rejected his claim that there had been a
substantial change in circumstances, which was based
on the decrease in his income, the increase in his parent-
ing time, and the loss of his ability to borrow money
from his current wife to satisfy his financial obligations
to the defendant. In his second motion to modify, how-
ever, the plaintiff did not claim a substantial change in
circumstances on the basis of the alleged decrease in
his income or the alleged increase in his parenting time.
Indeed, those alleged changes in circumstances had
previously been addressed by the trial court, and
rejected as not substantial, in denying the plaintiff’s
first motion to modify, from which he did not appeal.
Because those claims were not raised by the plaintiff
in his second motion to modify, and the court properly
did not address them in ruling on that motion, they are
not properly before us now.
The plaintiff also claims that the court erred in finding
that he had failed to prove that he was no longer able
to meet his financial obligations to the defendant by
borrowing money from his current wife. His brief is
wholly devoid of any legal authority to support his claim
and is thus inadequately briefed for our review. Even,
however, if he had properly briefed that claim, the
court’s rejection of his claim that he could no longer
borrow funds from his current wife to meet his financial
obligations to the defendant was well supported by the
court’s unchallenged factual finding that he had in fact
continued to borrow money from his current wife for
that purpose since the date that he filed his second
motion to modify. We thus conclude that the court did
not err in finding that there had been no substantial
change in circumstances as alleged by the plaintiff to
support a modification of the unallocated alimony and
child support obligation.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff was represented by counsel when he agreed to the terms
of the separation agreement that was incorporated into the judgment of dis-
solution.