Two family law cases decided by the Connecticut Supreme Court in the past year stood out from the rest. One of them yielded a new approach to the consideration of the enforceability of nonmodification of child support provisions. The other raised a novel issue concerning the interrelationship of the Uniform Fraudulent Transfer Act and dissolution of marriage judgments.

In Tomlinson v. Tomlinson, the Court addressed the issue of whether a separation agreement provision barring modification of an unallocated alimony and child support order is enforceable. The decision turned on the change in circumstances — physical custody of the minor children was shifting from the home of the recipient of alimony and child support payments to the home of the payor.

Approximately a year and a half postjudgment, the parties stipulated to a modification of the dissolution judgment so that the children would change primary residence to their father’s house, and the mother would have them with her two evenings per week and every other weekend. The father (and alimony payor) moved to have his financial obligations reduced in light of changes to the parenting agreement.

The father testified at the modification hearing that he was now covering the children’s expenses — including cell phone bills, gymnastics class expenses, and entertainment and transportation payments — with no contribution from the mother. No evidence was presented that the children’s support needs had changed or were unmet.

The trial court found that the custody change constituted a substantial change of circumstances, granted the motion for modification, and eradicated the father’s obligation to pay child support to the mother. The court calculated the presumptive child support obligation pursuant to the child support guidelines, using the parties’ then current financial affidavits, and reduced the unallocated alimony order by that amount. Based on the fact that there were other provisions in the parties’ separation agreement that contemplated a possible change to the unallocated order, such as remarriage of the alimony recipient, the trial court found that the unallocated order was modifiable despite the nonmodification provision.

The Appellate Court reversed the trial court. The Appellate Court found that the clear and unambiguous nonmodification provision should have been enforced pursuant to Connecticut General Statutes § 46b-86 and case law precedent construing the statute.

Upon certification, the Supreme Court considered the father’s argument that prior court precedent, specifically the case of Guille v. Guille, dictates that a child support obligation must always be modifiable because children have a common law right to parental support which the parents cannot contractually limit. The Court held that in the circumstances presented, the nonmodification provision did not prevent the trial court from modifying the unallocated order in the amount attributable to child support.

The Court reviewed the language of C.G.S. § 46b-86(a), in particular its authorization of an agreement by the parties to restrict modification of alimony or support. The focal point of the decision, however, was its application of Section 46b-224 to the determination of whether the nonmodification provision was enforceable to prevent a change in child support. The Court opined that the statute covers the “particular effect of a change in custody on preexisting child support orders,” while Section 46b-86 covers generally the modification of child support orders.

Section 46b-224 provides that where there is a change or transfer of custody of a child “subject to a pre-existing support order” and there is no finding as to the support order, the custody order “shall operate to suspend the support order” or modify it. Once the two statutory conditions are satisfied, the statute applies to a support order “without reference to any other factor such as the parties’ agreement.” The nonmodification provision of the parties’ agreement could not preclude modification of the child support obligations in such circumstances.

The Tomlinson Court approved of “a default rule that child support follows the children,” quoting from Guille that support is a right of the child. The Court reversed the Appellate Court and directed remand to the trial court for a determination of the proper amount attributable to child support. Specifically, the Court stated that the trial court must determine what part of the original unallocated order constituted nonmodifiable alimony and what part constituted unspecified but modifiable child support. Then, the court must reconsider the parties’ financial circumstances at the time of the remand.

Defrauding An Estate

Canty, Administratrix v. Otto, while not a customary family law case, is certainly of interest to family law practitioners. The state Supreme Court held that a creditor of the debtor-former husband had standing to attempt to collect a debt from his non-debtor former wife under the Uniform Fraudulent Transfer Act, C.G.S. § 52-552a, et.seq.

The facts of the case are salacious. The husband, Kenneth Otto, was involved sexually with an exotic dancer. In 2007, police began to investigate him for the dancer’s murder. The husband and his then-wife, Kathleen, learned of the investigation in March 2007, and transferred money from a joint account to an account soley in the wife’s name.

A search for the murdered woman’s body took place on property in Stafford co-owned by Mr. Otto and his son. The next day, the parties transferred title to a jointly-owned vehicle and the husband’s interest in Massachusetts real property to the wife. No consideration was paid for the transfers. The dancer’s body was unearthed on the Stafford property. The wife contacted an attorney, traveled with her husband to a same-day appointment, and the husband was served with a dissolution action in the attorney’s office reception area. The parties lived together until Mr. Otto was incarcerated.

A wrongful death action was filed against Mr. Otto in May 2007 and he was arrested for the dancer’s murder five days later. The court in the wrongful death action issued a prejudgment remedy against Mr. Otto. The adminstratrix for the dancer’s estate moved to intervene in the dissolution action. Her motion was denied and her appeal dismissed.

In June 2008, the court rendered a judgment of dissolution after trial, awarding all real property to Mrs. Otto. Mr. Otto received minimal retirement funds, a car and some shares of stock. Further efforts by the dancer’s estate to intervene failed. In November 2008, Mr. Otto was convicted of murder.

At a wrongful death case hearing, Mrs. Otto testified about her continuing love for Mr. Otto and the court found that she had conspired with him to shield his assets from claims of the dancer’s estate. The court found that Mr. Otto intended to defraud the estate, which was his creditor, and that his hurried transfers and failure to seriously contest the dissolution proceedings was evidence of that intent.

A wrongful death suit against Mrs. Otto was then filed under the Uniform Fraudulent Transfer Act and she moved to dismiss it on the basis that it was an impermissible collateral attack on the dissolution judgment. That motion was denied. A prejudgment remedy was ordered, with the court finding probable cause that the asset transfers were fraudulent. The prejudgment remedy was subsequently reduced by the amount of the defendant’s one-half interest in “the marital property” on the basis that her interest could not be the subject of a fraudulent transfer by Mr. Otto.

On appeal, the Supreme Court found that the distribution of property in a dissolution decree is a transfer under the Uniform Fraudulent Transfer Act. The Court held that the trial court properly determined that probable cause existed for the court’s finding of intention to hinder, delay or defraud the plaintiff. The Court recognized an exception against the rule against collateral attacks on judgment when a stranger to the judgment did not have an opportunity to litigate her claim.

The dancer’s estate’s vanquished efforts to intervene in the dissolution action rendered her a stranger to the judgment. Her remedies would not require the setting aside of the dissolution judgment and could include the practical relief of awarding her assets transferred to Mrs. Otto. The judgment of the court granting the application for prejudgment remedy and necessarily considering the earlier motion to dismiss as nonmeritorious was affirmed.•