Marianne Olson v. Fusaini Mohammadu

The question that we must resolve in

this appeal is whether a trial court may properly deny

a motion for modification of alimony and child support

solely on the basis that a party's voluntary actions gave

rise to the alleged substantial change in circumstances

warranting modification. The defendant, Fusaini

Mohammadu, appealed to the Appellate Court from the

judgment of the trial court denying his postjudgment

motion to modify his alimony and child support obligations

to the plaintiff, Marianne Olson. Olson v. Mohammadu,

134 Conn. App. 252, 39 A.3d 744 (2012). The

Appellate Court affirmed the judgment of the trial court.

Id., 262. This court granted certification to appeal on

the following issue: ''Did the Appellate Court properly

conclude that the defendant was not entitled to a modification

of his alimony and child support obligations

because his voluntary return to Connecticut to be closer

to his son was an 'unacceptable reason' for his

decreased income under Sanchione v. Sanchione, 173

Conn. 397, 378 A.2d 522 (1977)?'' Olson v. Mohammadu,

304 Conn. 930, 42 A.3d 391 (2012). We conclude that it

did not. Accordingly, we reverse the judgment of the

Appellate Court.

The following facts and procedural history are set

forth in the Appellate Court opinion. ''The parties were

married on June 7, 2001. During the marriage, the parties

had one child together. In September, 2008, the

plaintiff . . . who resided in Connecticut with [the

child], filed a dissolution of marriage action against

the defendant, who at that time resided in Florida. On

August 5, 2009, the court rendered judgment dissolving

the parties' marriage. In its orders contained in that

judgment, the court ordered joint legal custody of the

minor child with primary physical custody to the plaintiff

and reasonable visitation rights to the defendant in

Connecticut. The court further ordered the defendant

to pay the plaintiff periodic alimony in the amount of

$777 per week. . . . In addition, the court ordered the

defendant to pay child support in the following

amounts: $334 per week and 66 percent of day care,

extracurricular activities and unreimbursed medical

and dental expenses for the benefit of the minor child.''

(Footnote omitted.) Olson v. Mohammadu, supra, 134

Conn. App. 254.

The record reveals the following additional facts and

procedural history. On April 14, 2010, the defendant

filed a motion to modify the alimony and child support

order. The defendant filed an amended motion to modify

on June 18, 2010. As the grounds for his amended

motion, the defendant alleged a substantial change in

circumstances in that he had relocated from Florida

to Connecticut and, consequently, had obtained new

employment at a reduced salary. At the modification

hearing, the court heard undisputed testimony that the

defendant voluntarily left employment as a physician

in Florida earning a salary of approximately $180,000

annually. The defendant testified that he voluntarily

relocated to Connecticut in order to have a more meaningful

relationship with his child.1 As a result of the

relocation, the defendant's salary was reduced to

approximately $150,000 annually. According to the

defendant's testimony, the $150,000 salary is standard

pay for someone of his experience in a comparable

position in Connecticut.

After the hearing, the trial court denied the defendant's

motion for modification. In denying the motion,

the trial court stated in its memorandum of decision

that it ''relie[d] on the voluntary nature of the income

change experienced by the defendant.'' While the court

acknowledged that the defendant's ''stated motivation

might have been a good parental decision,'' the court

concluded that the relocation was ''a decision that

ignored the realities of his financial obligation as set

forth in the judgment issued just months earlier.'' The

defendant appealed from the trial court's decision to

the Appellate Court.

While the appeal was pending at the Appellate Court,

the defendant filed a motion for articulation of the trial

court's decision. The defendant sought articulation on

the following three issues: ''whether the trial court considered

the fact of the [d]efendant's relocation to Connecticut

to be nearer to his son to be a substantial

change in circumstances''; ''whether the trial court considered

the reduction of the [d]efendant's earnings upon

his relocation to be a substantial change in circumstances'';

and ''the figures used by the trial court to

determine the relevant incomes of the parties.'' The

trial court granted, in part, the motion for articulation

and stated that ''[t]he court did not consider the relocation

to be a substantial change in circumstance[s]

because the move was a voluntary action on the part

of the defendant.'' (Emphasis added.) Relying on Sanchione

v. Sanchione, supra, 173 Conn. 397, the court

decided ''not to treat [the defendant's] relocation and

the change in income that resulted from that voluntary

decision as a significant change in circumstances.''

(Emphasis added.) The court declined to articulate how

it calculated the incomes of the parties, stating that

''its rulings on the first two questions ma[d]e the third

irrelevant to the decision.''

Thereafter, the Appellate Court affirmed the judgment

of the trial court. The Appellate Court concluded

that the trial court properly determined that ''a change

in income resulting from a voluntary decision does not

constitute a substantial change in circumstances.''

Olson v. Mohammadu, supra, 134 Conn. App. 261. The

Appellate Court reasoned that ''[although] the [trial]

court noted that there might have been a good parental

motivation underlying the defendant's relocation, the

court was correct not to reach the defendant's motivation

in its determination that the defendant failed to

prove a substantial change in circumstances.'' Id., 260–

61. According to the Appellate Court, evidence of the

defendant's stated motivation in relocating to Connecticut

would be relevant only if he had made a threshold

showing of a substantial change in circumstances. Id.,

261 n.10. This appeal followed.

On appeal to this court, the defendant claims that

the Appellate Court improperly concluded that his voluntary

action in relocating to Connecticut, regardless

of his stated motivations, precluded him from establishing

a substantial change in circumstances warranting

modification of his alimony and child support obligations.

The defendant contends that the Appellate Court

relied on a misconception of governing law under Sanchione.

Specifically, he contends that an inability to pay

that is ''brought about by the defendant's own fault'';

Sanchione v. Sanchione, supra, 173 Conn. 407; is not

necessarily synonymous with an inability to pay brought

about by voluntary conduct. Therefore, he posits that

the voluntary action giving rise to an inability to pay

should not foreclose a threshold showing of a substantial

change in circumstances. The defendant also contends

that if we agree with his claim that the trial court

improperly denied his motion for modification because

of his voluntary relocation to Connecticut, we should

reverse the judgment of the Appellate Court and the

case should be remanded to the trial court for a new

hearing. We agree that the Appellate Court improperly

concluded that the defendant's voluntary relocation and

income change necessarily precluded him from establishing

a substantial change in circumstances. We also

agree that the case should be remanded to the trial

court for a new hearing.

We begin our analysis with the standard of review.

''The scope of our review of a trial court's exercise of its

broad discretion in domestic relations cases is limited

to the questions of whether the [trial] court correctly

applied the law and could reasonably have concluded

as it did.'' (Citation omitted; internal quotation marks

omitted.) Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).

''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.) Williams v. Williams, 276 Conn. 491, 497, 886

A.2d 817 (2005). Nevertheless, we may reverse a trial

court's ruling on a modification motion if the trial court

applied the wrong standard of law. Id.; see also Morris

v. Morris, 262 Conn. 299, 305, 811 A.2d 1283 (2003);

Borkowski v. Borkowski, 228 Conn. 729, 740, 638 A.2d

1060 (1994).2

''[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 [or child support], the

applicable provision of the statute is § 46b-86 (a),3 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.'' (Footnote added; internal quotation

marks omitted.) Simms v. Simms, 283 Conn. 494, 502,

927 A.2d 894 (2007). ''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 court to inquire as to what, if any, new

circumstance warrants a modification of the existing

order.'' Borkowski v. Borkowski, supra, 228 Conn.

737–38.

''Once a trial court determines that there has been a

substantial change in the financial circumstances of

one of the parties, the same criteria that determine an

initial award of alimony and support are relevant to the

question of modification.'' Hardisty v. Hardisty, 183

Conn. 253, 258–59, 439 A.2d 307 (1981). ''More specifically,

these criteria, outlined in General Statutes § 46b-

82,4 require the court to consider the needs and financial

resources of each of the parties and their children, as

well as such factors as the causes for the dissolution

of the marriage and the age, health, station, occupation,

employability and amount and sources of income of the

parties.'' (Footnote altered.) Borkowski v. Borkowski,

supra, 228 Conn. 736. ''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 includes only

the power to adapt the order to some distinct and definite

change in the circumstances or conditions of the

parties.'' (Citations omitted.) Id., 738.

Thus, ''[w]hen 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

§ 46b-82 criteria, make an order for modification. . . .

The court has the authority to issue a modification only

if it conforms the order to the distinct and definite

changes in the circumstances of the parties.'' (Emphasis

omitted; internal quotation marks omitted.) Gervais v.

Gervais, 91 Conn. App. 840, 850–51, 882 A.2d 731, cert.

denied, 276 Conn. 919, 888 A.2d 88 (2005).

Two additional legal principles are relevant to our

disposition of this appeal. First, in Borkowski v. Borkowski,

supra, 228 Conn. 737–38, this court clarified

the two step method by which a trial court should

proceed with a motion brought pursuant to § 46b-86.

''By so bifurcating the trial court's inquiry . . . we did

not mean to suggest that a trial court's determination

of whether a substantial change in circumstances has

occurred, and its determination to modify alimony, are

two completely separate inquiries. . . . After the evidence

introduced in support of the substantial change

in circumstances establishes the threshold predicate

for the trial court's ability to entertain a motion for

modification, however, it also naturally comes into play

in the trial court's structuring of the modification

orders.'' (Citation omitted.) Id., 737. Second, in Sanchione

v. Sanchione, supra, 173 Conn. 407, this court concluded

that in order to meet the threshold of a

substantial change in circumstances, the alleged inability

to pay ''must be excusable and not brought about

by the defendant's own fault.''

Turning to the facts of this case, the Appellate Court

rejected the defendant's argument that the trial court

should have considered the defendant's motivations in

relocating to Connecticut rather than deny the motion

solely on the basis that his relocation was voluntary.

Relying on this court's decision in Borkowski, the

Appellate Court concluded that evidence of the ''motivation

behind such a voluntary action would only be relevant

if [a threshold showing of a substantial change in

circumstances] had been met.'' Olson v. Mohammadu,

supra, 134 Conn. App. 261 n.10. The Appellate Court

determined that this court's holding in Sanchione reasonably

supported the trial court's conclusion that ''a

change in income resulting from a voluntary decision

does not constitute a substantial change in circumstances.''

Id., 261.

We disagree with the Appellate Court's analysis. In

Borkowski v. Borkowski, supra, 228 Conn. 741, this

court held that in determining the threshold inquiry of

a substantial change in circumstances, the trial court

is limited to considering events arising after the dissolution

decree or the most recent modification thereof.

In that case, this court concluded that the trial court

properly admitted evidence concerning the cause of the

plaintiff's alleged substantial change in circumstances

as relevant to both parts of the court's modification

inquiry. Id., 743.5 Accordingly, this court clarified in

Borkowski that the two parts of the trial court's modification

inquiry, which include the threshold determination

of a substantial change in circumstances and the

subsequent determination of whether to modify alimony

or child support, are not entirely separate inquiries.

Id., 737. Indeed, Borkowski contemplates that

''evidence introduced in support of the substantial

change in circumstances . . . naturally comes into

play in the trial court's structuring of the modification

orders.'' Id. Thus, Borkowski does not support the

Appellate Court's conclusion that evidence of the motivation

behind the defendant's voluntary action would

become relevant only had the court found a substantial

change in circumstances.

Moreover, the notion that a court cannot consider

the reason underlying an alleged substantial change

in circumstances in determining the threshold inquiry

under a § 46b-86 motion for modification is at odds

with the decision in Sanchione v. Sanchione, supra,

173 Conn. 397. In Sanchione, this court addressed the

issue of whether the trial court properly granted a prospective

reduction in alimony where the court found

only that the financial affidavits were true and that there

had been a ''change of circumstances re the defendant's

ability to pay . . . .'' (Internal quotation marks omitted.)

Id., 407. This court concluded that the trial court's

findings on the affidavits were alone inadequate to support

the modification without any record that the court

had evaluated the circumstances surrounding the defendant's

claimed inability to pay. Id. Accordingly, this

court set aside the modification and ordered a new

hearing. Id.

Under Sanchione, an '' '[i]nability to pay' does not

automatically entitle a party to a decrease of an alimony

order. It must be excusable and not brought about by

the defendant's own fault.'' Id. In order to make a determination

on the threshold inquiry, Sanchione requires

that the trial court ascertain whether the alleged substantial

change in circumstances is the result of the

moving party's ''own extravagance, neglect, misconduct

or other unacceptable reason . . . .''6 Id. Simply put,

Sanchione ''stand[s] for the principle that if a party's

culpable conduct causes an inability to pay an alimony

award [or child support obligation], then the threshold

question of whether a substantial change of circumstances

exists is not met.'' (Emphasis added.) Schade

v. Schade, 110 Conn. App. 57, 65 n.6, 954 A.2d 846, cert.

denied, 289 Conn. 945, 959 A.2d 1009 (2008).7

The plaintiff correctly conceded at oral argument

before this court that Sanchione does not state that

voluntariness is an absolute bar to establishing a substantial

change in circumstances. While the plaintiff

acknowledged that this court in Sanchione instead concluded

that fault is a bar to modification, she argued

that fault has evolved through our Appellate Court's

case law to encompass voluntariness. The plaintiff is

correct that a review of the Appellate Court's case law in

the three decades since Sanchione was decided reveals

that the inquiry in that case has occasionally been

shifted into a voluntariness based analysis.8 To the

extent that there is a split of Appellate Court authority

that diverges on whether the touchstone of the threshold

modification inquiry is culpability or voluntariness,9

we take this opportunity to clarify the holding in Sanchione

and the two part inquiry for a motion brought

under § 46b-86.

In Sanchione v. Sanchione, supra, 173 Conn. 407, this

court held that culpable conduct precludes a threshold

showing of a substantial change in circumstances on a

motion for modification. Indeed, the word ''voluntary''

does not appear in Sanchione precisely because the

voluntariness of one's action is of limited utility in ascertaining

fault. Nearly every human action is voluntary,

but not every voluntary action is fault worthy. The

words used by this court in Sanchione—''fault . . .

extravagance, neglect, misconduct or other unacceptable

reason''—underscore that the crux of the inquiry

is culpability and not voluntariness. Id. An analysis that

begins and ends with voluntariness, as was applied in

the present case, renders meaningless the critical distinction

enunciated in Sanchione between acceptable

and ''unacceptable reason[s]'' for an alleged substantial

change in circumstances. Id. A court simply cannot

engage in the fault based inquiry of Sanchione without

ascertaining the reasons motivating one's voluntary

actions.10

The record in the present case reflects that the trial

court did not make any factual findings regarding the

reasons motivating the defendant's relocation from

Florida to Connecticut. Although the defendant testified

that he relocated to Connecticut in order to have a

more meaningful relationship with his son; see footnote

1 of this opinion; the trial court did not consider the

defendant's motivations in its analysis.11 Indeed, the

trial court's entire decision was predicated on its finding

that ''the move was a voluntary action on the part of

the defendant.'' Instead, the trial court should have

taken into account the defendant's motivation for relocating

in deciding the threshold issue of whether there

was a substantial change of circumstances warranting

modification. In other words, consistent with Sanchione,

the trial court should have determined whether

the defendant's alleged ''inability to pay was a result of

his own extravagance, neglect, misconduct or other

unacceptable reason . . . .'' (Emphasis added.) Sanchione

v. Sanchione, supra, 173 Conn. 407. Because the

trial court made no finding on the culpability of the

defendant's conduct, we conclude that the trial court

incorrectly applied the law when it denied the defendant's

motion for modification.

The plaintiff makes two arguments in support of her

claim that the trial court properly denied the defendant's

motion for modification. First, the plaintiff argues

that the court did find that the defendant's voluntary

decision to relocate to Connecticut was culpable. Specifically,

the plaintiff suggests that the court found that

the defendant's voluntary conduct in the face of recent

financial orders was inappropriate, regardless of his

stated motivation.12 Alternatively, the plaintiff contends

that the trial court's findings regarding the defendant's

financial circumstances sufficiently support the court's

determination that the defendant failed to establish a

substantial change in circumstances. We are not persuaded

by the plaintiff's first argument and we decline

to reach the merits of the plaintiff's alternative

argument.

As a preliminary matter, we note that our resolution

of the plaintiff's claims requires us to interpret the trial

court's memorandum of decision and subsequent articulation.

''The interpretation of a trial court's judgment

presents a question of law over which our review is

plenary. . . . As a general rule, judgments are to be

construed in the same fashion as other written instruments.

. . . The determinative factor is the intention

of the court as gathered from all parts of the judgment.

. . . Effect must be given to that which is clearly

implied as well as to that which is expressed. . . . The

judgment should admit of a consistent construction as

a whole.'' (Citations omitted; internal quotation marks

omitted.) Sosin v. Sosin, 300 Conn. 205, 217–18, 14 A.3d

307 (2011); see also Fisher v. Big Y Foods, Inc., 298

Conn. 414, 424–25, 3 A.3d 919 (2010) (''an opinion must

be read as a whole without particular portions read in

isolation, to discern the parameters of its holding''). If

there is ambiguity in a court's memorandum of decision,

we look to the articulations that the court provides.

See, e.g., Miller v. Kirshner, 225 Conn. 185, 208, 621 A.2d

1326 (1993) (''[a]n articulation is appropriate [when]

the trial court's decision contains some ambiguity or

deficiency reasonably susceptible of clarification''

[internal quotation marks omitted]).

With these principles in mind, we turn to the language

of the memorandum of decision and the articulation in

the present case. Reading the memorandum as a whole

together with the subsequent articulation, we conclude

that the trial court's decision was clearly predicated on

voluntariness, not culpable conduct. Although the trial

court tangentially refers to the defendant's decision to

relocate as one that ''ignored the realities of his financial

obligation[s],''13 this observation, read in the context of

the memorandum of decision and the articulation, does

not amount to a finding of culpability under this court's

precedent in Sanchione.

In the present case, the trial court undertook no

inquiry to ascertain whether the alleged substantial

change in circumstances ''[was] excusable and not

brought about by the defendant's own fault.'' Sanchione

v. Sanchione, supra, 173 Conn. 407. Although the trial

court opined that one consequence of the defendant's

relocation was that it ignored the realities of the recent

financial orders, the court did not find that the defendant

relocated in order to avoid his financial obligations.

Indeed, the trial court did not find that any of

the fault based reasons set forth in Sanchione applied

in this case. Instead, the court denied the motion to

modify for the singular reason that the defendant voluntarily

relocated to Connecticut.14

To summarize our holding in this case, a court that

is confronted with a motion for modification under

§ 46b-86 (a) must first determine whether the moving

party has established a substantial change in circumstances.

In making this threshold determination, if a

party's voluntary action gives rise to the alleged substantial

change in circumstances warranting modification,

the court must assess the motivations underlying

the voluntary conduct in order to determine whether

there is culpable conduct foreclosing a threshold determination

of a substantial change in circumstances. If

the court finds a substantial change in circumstances,

then the court may determine what modification, if any,

is appropriate in light of the changed circumstances.

Accordingly, in the present case we conclude that

the trial court improperly denied the defendant's motion

for modification solely on the basis that the defendant's

voluntary relocation to Connecticut gave rise to the

alleged substantial change in circumstances warranting

modification of his alimony and child support obligations.

15 As a result, this matter must be remanded to

the trial court for a new hearing on the defendant's

motion for modification. At the rehearing, the trial court

must determine whether the defendant established a

substantial change in circumstances and, if so, what

modification of alimony or child support, if any, is

appropriate.16

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

reverse the judgment of the trial court and to remand

the case to that court for a new hearing on the motion

for modification.

In this opinion the other justices concurred.

1 On direct examination by his attorney, the defendant testified as follows:

''It's been difficult living in Florida trying to see my son. And I've been trying

to work with [the plaintiff] even to get a visitation right like in the summer

time when he's on vacation to come and spend those times with me, or

when he has school break he can come and spend time with me. But this

time I had requested, [the plaintiff] refused. The only option she gives me

is I had to buy a ticket for both of them together, or I'm not going to see

my son. So it came to a point I cannot even have time to talk to him over

the [tele]phone, so I finally decided, you know, I need to be closer to my

son. And . . . so I moved back.''

2 In Borkowski v. Borkowski, supra, 228 Conn. 740, this court stated that

''[n]otwithstanding the great deference accorded to the trial court in dissolution

proceedings, a trial court's ruling on a modification may be reversed

if, in the exercise of its discretion, the trial court applies the wrong standard

of law.'' (Emphasis added.) To the extent that this court's reference in

Borkowski to the trial court's ''exercise of its discretion'' in any way suggested

that the trial court's application of the correct standard of law is

discretionary, we take this opportunity to clarify that the trial court has no

discretion in applying the correct standard of law.

3 General Statutes § 46b-86 (a), as amended by No. 13-213, § 4, of the 2013

Public Acts, provides in relevant part: ''Unless and to the extent that the

decree precludes modification, any final order for the periodic payment of

permanent alimony or support, an order for alimony or support pendente

lite or an order requiring either party to maintain life insurance for the other

party or a minor child of the parties may, at any time thereafter, be continued,

set aside, altered or modified by the court upon a showing of a substantial

change in the circumstances of either party . . . . If a court, after hearing,

finds a substantial change in circumstances of either party has occurred,

the court shall determine what modification of alimony, if any, is appropriate,

considering the criteria set forth in section 46b-82 . . . .''

As for child support orders, ''[§] 46b-86 (a) permits the court to modify

child support orders in two alternative circumstances. Pursuant to this

statute, a court may not modify a child support order unless there is first

either (1) a showing of a substantial change in the circumstances of either

party or (2) a showing that the final order for child support substantially

deviates from the child support guidelines . . . . Both the substantial

change of circumstances and the substantial deviation from child support

guidelines' provision establish the authority of the trial court to modify

existing child support orders to respond to changed economic conditions.

The first allows the court to modify a support order when the financial

circumstances of the individual parties have changed, regardless of their

prior contemplation of such changes. The second allows the court to modify

child support orders that were once deemed appropriate but no longer seem

equitable in the light of changed social or economic circumstances in the

society as a whole . . . .'' (Citation omitted; internal quotation marks omitted.)

Weinstein v. Weinstein, 104 Conn. App. 482, 491–92, 934 A.2d 306

(2007).

4 General Statutes § 46b-82 (a), as amended by No. 13-213, § 3, of the 2013

Public Acts, provides in relevant part: ''In determining whether alimony

shall be awarded, and the duration and amount of the award, the court shall

consider the evidence presented by each party and shall consider the length

of the marriage, the causes for the annulment, dissolution of the marriage

or legal separation, the age, health, station, occupation, amount and sources

of income, earning capacity, vocational skills, education, employability,

estate and needs of each of the parties . . . .''

5 In so holding, this court observed ''no reason why the trial court, in

determining whether alimony should be modified or terminated, should not

be permitted also to consider the causes for a party's substantial change

of circumstances.'' Borkowski v. Borkowski, supra, 228 Conn. 743.

Quoting from this passage in Borkowski, the Appellate Court asserted

that only ''after a finding of substantial change, can the court 'consider

the causes for a party's substantial change of circumstances.' '' (Emphasis

added.) Olson v. Mohammadu, supra, 134 Conn. App. 259. The Appellate

Court takes the language in Borkowski out of context. In Borkowski, this

court addressed the trial court's broad equitable powers in fashioning an

appropriate modification order. Ultimately, this court determined that ''the

trial court's equitable powers to consider any factor appropriate for a just

and equitable modification of the parties' alimony'' supported the conclusion

that ''the trial court properly considered the cause of the plaintiff's [substantial

change in circumstances] in determining to modify the plaintiff's alimony.''

Borkowski v. Borkowski, supra, 228 Conn. 744. This court in

Borkowski did not hold that a trial court may never consider the cause of

a party's substantial change in circumstances under the first part of the

modification inquiry. Rather, this court clarified that the trial court is limited

to considering evidence antecedent to the dissolution decree or the most

recent modification in determining whether there has been a substantial

change in circumstances warranting modification. See id., 740.

6 We emphasize that this fault based principle reinforces the well settled

imperative that a party seeking modification pursuant to § 46b-86 (a) ''demonstrate

that circumstances have changed since the last court order such

that it would be unjust or inequitable to hold either party to it.'' Borkowski

v. Borkowski, supra, 228 Conn. 737–38. A party whose culpable conduct

forms the sole basis of an alleged substantial change in circumstances will

likely be unable to demonstrate that it would be unjust or inequitable to

maintain the existing alimony or child support orders.

7 In Schade v. Schade, supra, 110 Conn. App. 57, the Appellate Court

affirmed the judgment of the trial court temporarily reducing the defendant's

alimony obligation but allowing the unpaid balance to accrue weekly, when

''the [trial] court found that the defendant was not actively pursuing the

options available to an individual with his experience and training''; id., 67;

the defendant ''reveal[ed] an intent to delay present income potential'';

(internal quotation marks omitted) id., 68; and it was ''clear to the court

that [the defendant was] pacing himself so as to avoid to the extent possible

his obligations for the twelve year alimony payment period to which he

himself had previously committed.'' (Internal quotation marks omitted.) Id.

8 It appears that a shift in lexicon from ''fault'' to ''voluntariness'' may

have originated in Gleason v. Gleason, 16 Conn. App. 134, 546 A.2d 966 (1988),

wherein the Appellate Court reversed the trial court's decision granting a

modification of alimony when there was ''[no factual] basis for concluding

that the defendant's employment situation was excusable or beyond his

control.'' (Emphasis added.) Id., 138. Just prior to introducing the alternative

phrase ''or beyond his control''; id.; the Appellate Court recited the fault

based principle of Sanchione that ''the inability to pay alimony must be

excusable and not brought about by the defendant's own fault . . . .''

Id., 137.

It cannot reasonably be disputed that the phrases ''beyond [one's] control'';

id., 138; and ''not brought about by one's own fault''; id., 137; carry different

meanings. Conduct that is beyond one's control, that is, involuntary, is not

brought about by one's own fault. But the converse is not necessarily true.

Conduct that is within one's control, that is, voluntary, is not necessarily

brought about by one's own fault. In other words, not all voluntary conduct

is fault worthy.

9 There are two lines of decisions in the Appellate Court that have applied

Sanchione. One line of decisions focuses on voluntariness, while the other

line focuses on culpability. Illustrating the Appellate Court authority focusing

on voluntariness is the decision in Richard v. Richard, 23 Conn. App. 58, 579

A.2d 110 (1990). In that case, the trial court denied a motion for modification

because ''the defendant failed to show a substantial change in his circumstances

[because] the defendant's decrease in income was brought about

by his own action.'' (Emphasis added.) Id., 63. The Appellate Court reversed

the trial court's decision and remanded the case for a new hearing because

the trial court had not allowed the defendant to present any evidence on

whether he voluntarily changed his job. Id., 62–63. In so holding, the Appellate

Court improperly elevated the centrality of voluntariness in the threshold

inquiry on a motion for modification.

By contrast, the Appellate Court decision in Misinonile v. Misinonile,

35 Conn. App. 228, 645 A.2d 1024 (1994), exemplifies the Appellate Court

authority that properly focuses the inquiry on culpability and not voluntariness.

In that case, the Appellate Court rejected the notion that voluntariness

alone precludes a threshold showing of a substantial change in circumstances.

Instead, the Appellate Court concluded that the trial court properly

found that the defendant's voluntary retirement constituted a substantial

change in circumstances. The motivation behind the defendant's voluntary

retirement was integral to the Appellate Court's holding: ''Our review of the

record discloses no basis for a finding that the defendant retired for the

purpose of avoiding or reducing his obligation. Rather, the defendant, who

had been eligible for retirement six years earlier, chose, after working for

thirty-three years with health problems, to retire at age sixty-eight. Under

such circumstances, it is not unreasonable for the defendant, as he stated,

to be 'tired' and to seek the less strenuous and demanding lifestyle offered

by retirement. The trial court chose to credit the defendant's testimony. On

the basis of these facts, we conclude that the finding of the [trial] court,

that there was a substantial change of circumstances, was neither unreasonable

nor constituted an abuse of discretion.'' (Emphasis added.) Id., 232.

10 Accordingly, we have emphasized the relevance of the motivations

behind a moving party's voluntary conduct in deciding the threshold inquiry

on a modification motion. In Simms v. Simms, supra, 283 Conn. 494, for

example, we concluded that the trial court properly found a substantial

change in circumstances where the defendant voluntarily retired and sold

his business despite the plaintiff's allegations that the defendant was still

able to work if he so chose. We reasoned that ''[t]he trial court reasonably

could have concluded that the defendant sold his business because of his

advancing age and poor health, and not to avoid his obligations to the

plaintiff, and that the loss of a continuous stream of income from his

business constituted a substantial change in his financial circumstances

warranting review of his alimony obligation . . . .'' (Emphasis added.)

Id., 504.

11 At oral argument before this court, the defendant's attorney argued that

the trial court did find credible the defendant's stated motivation. Specifically,

the defendant highlighted the following statement from the trial court's

memorandum of decision: ''While his stated motivation might have been a

good parental decision, it was a decision that ignored the realities of his

financial obligation as set forth in the judgment issued just months earlier.''

We are not persuaded. When read in context, it is clear that the trial court

did not make any findings on the defendant's stated motivations. The trial

court denied the motion because of the voluntary nature of the defendant's

relocation without regard for his stated reasons for relocating to Connecticut.

12 According to the plaintiff, ''[the court] determined that the defendant's

voluntary conduct in quitting his employment and his subsequent relocation,

ignoring his financial obligations, was not an acceptable reason on which

the court could find a substantial change in circumstances.'' Consistent with

this perspective on how the court arrived at its decision, the plaintiff urges

our caution in ''[p]ermitting obligors, such as the defendant, to modify

financial obligations based on a subjective motivation that sounds acceptable

[because this] would provide strong incentive to many obligors to quit

employment and take a lesser paying job, or go part-time in order to reduce

their obligations.''

We are mindful of the possibility that obligors may intentionally depress

their income for the purpose of avoiding alimony or support obligations.

See, e.g., Schmidt v. Schmidt, 180 Conn. 184, 189–90, 429 A.2d 470 (1980)

(''[i]t is especially appropriate for the trial court to base its award on earning

capacity rather than actual earned income where . . . there is evidence

before the court that the person to be charged has wilfully depleted his or

her earnings with a view toward denying or limiting the amount of alimony

to be paid to a former spouse''). Nonetheless, we disagree with the suggestion

that the motivation for a person's voluntary action should not enter the

court's analysis simply because a person could fabricate ''a subjective motivation

that sounds acceptable.'' The trial court is afforded broad discretion

in assessing the credibility of testimony in modification actions. See Borkowski

v. Borkowski, supra, 228 Conn. 739 (''[a]s has often been explained, the

foundation for [an abuse of discretion standard of review] is that the trial

court is in a clearly advantageous position to assess the personal factors

significant to a domestic relations case'' [internal quotation marks omitted]).

The mere possibility that a party may fabricate testimony regarding the

ostensibly acceptable reasons for his voluntary conduct resulting in an

alleged inability to pay does not require that we abandon the settled methods

for distinguishing between credible and incredible testimony.

In the present case, the trial court should have made a credibility determination

regarding the defendant's alleged motivations for relocating to Connecticut.

Without the benefit of these findings, the trial court could not

properly ascertain whether the defendant had made a threshold showing

of a substantial change in circumstances.

13 We note that the plaintiff relies exclusively on the trial court's reference

to the defendant's purported disregard for his obligations to support her

contention that the court faulted the defendant for relocating to Connecticut.

The plaintiff's argument, however, blurs the distinction between the consequences

of one's actions and the motivations underlying one's actions. A

decision that ostensibly ignores the realities of its consequences, here an

alleged inability to meet one's financial obligations, is not necessarily a

decision that is motivated by bringing about those consequences.

The following hypothetical illustrates this distinction. A parent, upon

learning that his minor child has sustained serious injuries requiring lengthy

rehabilitation, relocates in order to be closer to his child during the child's

recovery. As a consequence, the parent obtains new employment in a comparable

position but at a lower salary. Under these facts, a trial court could

not reasonably conclude that the parent's voluntary relocation was culpable

conduct despite the reality that one consequence of the relocation was

reemployment at a lower salary.

Similarly in the present case, in the absence of a finding that the defendant

moved to Connecticut for an unacceptable reason, such as avoiding his

financial obligations, the voluntariness of his conduct does not alone support

the court's determination that the defendant failed to show a substantial

change in circumstances.

14 To the extent that the plaintiff relies on the final sentence of the Appellate

Court's opinion to bolster her interpretation of the trial court's decision,

this argument is also unavailing. At the end of its opinion, the Appellate

Court states that ''the [trial] court reasonably could have concluded that

the defendant's unilateral action in the face of his financial obligations set

forth in the dissolution judgment was an unacceptable reason that did

not justify a finding of a substantial change in circumstances.'' Olson v.

Mohammadu, supra, 134 Conn. App. 261–62.

Because the trial court did not make any findings regarding whether

the defendant's stated reasons for relocating were culpable, the Appellate

Court's conclusion that the trial court reasonably could have concluded that

the defendant's voluntary action was an unacceptable reason for the alleged

change in circumstances is unfounded.

15 We decline to address the alternate ground for affirmance raised by the

plaintiff, namely, that the trial court's findings on the defendant's alleged

income change independently support the trial court's conclusion that the

defendant failed to demonstrate a substantial change in circumstances. In

support of this claim, the plaintiff relies on a footnote in the trial court's

memorandum of decision wherein the trial court observed, inter alia, that

it was not persuaded that the defendant's relocation substantially changed

his financial circumstances. Specifically, the footnote provides: ''Additionally,

the court is not convinced that the new income is significantly lower

than [the defendant's] Florida income as presented in the financial affidavits

presented to the court. There is only a 13 [percent] reduction between his

gross Florida income and his actual present income not including his various

bonus payments received from his employer. Additionally, his employment

contract affords him the possibility of receiving further compensation in

the form of an incentive compensation, a productivity incentive, a quality

incentive and a patient satisfaction incentive as well as merit increases.

Finally, his residence in Connecticut will reduce the high cost of travel

previously required to see his son.''

Consistent with the foregoing discussion, the trial court's memorandum

of decision and articulation demonstrate that the defendant's financial circumstances

played no part in the trial court's decision. Significantly, the

trial court stated that because it did not consider the defendant's voluntary

relocation and income change to be a substantial change in circumstances,

the findings in the footnote of the trial court's memorandum of decision

were ''irrelevant to the decision.'' Accordingly, the plaintiff is asking that

we affirm the trial court's decision on an alternative ground not reached

by the trial court.

We decline to address the alternative ground for affirmance for two fundamental

reasons. First, even if we were to assume that the plaintiff raised

and briefed this alternative ground in the Appellate Court, the plaintiff was

required, but failed, to file a statement with this court providing alternative

grounds for affirmance of the Appellate Court decision in accordance with

Practice Book § 84-11. Section 84-11 provides in relevant part: ''(a) Upon

the granting of certification, the appellee may present for review alternative

grounds upon which the judgment may be affirmed provided those grounds

were raised and briefed in the appellate court. . . .

''(c) Any party desiring to present alternative grounds for affirmance . . .

shall file a statement thereof within fourteen days from the issuance of

notice of certification. . . .''

Second, even if we were to assume no prejudice to the defendant, we

still cannot affirm the trial court's decision on the alternative ground raised

by the plaintiff. ''[I]f the alternate issue was not ruled on by the trial court,

the issue must be one that the trial court would have been forced to rule in

favor of the appellee. Any other test would usurp the trial court's discretion.''

(Internal quotation marks omitted.) Zahringer v. Zahringer, 262 Conn. 360,

371, 815 A.2d 75 (2003), citing W. Horton & S. Cormier, Rules of Appellate

Procedure (2003 Ed.) § 63-4 (a) (1), comment, p. 138. We cannot conclude

as a matter of law that the trial court would have been forced to rule in

the plaintiff's favor on the basis of the alternative ground raised by the

plaintiff. There is no formulaic equation for determining whether an alleged

income change constitutes a substantial change in circumstances. Thus,

even if the trial court had articulated the findings in its footnote, we would

still be unable to affirm the trial court's decision on that basis.

16 We note that at oral argument before this court, both parties agreed

that, if this court were to conclude that the trial court improperly denied

the defendant's motion for modification, a rehearing on the modification

motion would be appropriate. In view of the time that has elapsed since

the defendant filed his amended motion for modification, both parties further

agreed that, if the trial court were to award a modification on rehearing,

the court should follow the principles articulated in Zahringer v. Zahringer,

124 Conn. App. 672, 6 A.3d 141 (2010), in fashioning an appropriate modification.

See id., 689 (''The retroactive award may take into account the long

time period between the date of filing a motion to modify . . . and the date

that motion is heard, which in this case spans a number of years. The court

may examine the changes in the parties' incomes and needs during the time

the motion is pending to fashion an equitable award based on those changes.

The current alimony need not be uniformly retroactive, if such a result

would be inequitable.'').

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

reverse the judgment of the trial court and to remand

the case to that court for a new hearing on the motion

for modification.