Tomlinson v. Tomlinson: The Connecticut Supreme Court the child support component can be modified in nonmodifiable unallocated support payments.
By Sarah Stark Oldham, divorce lawyer
The Connecticut Supreme Court, in Tomlinson v. Tomlinson, 305 Conn. 539 (2012), found that even if parties agree that unallocated support payments are nonmodifiable, the child support component can still be modified by court order. The principal issue in Tomlinson was “whether a trial court may modify unallocated alimony and child support payments following a change in the primary physical custody of the minor children from the party receiving the unallocated payments to the party making the payments, when the dissolution judgment incorporated a provision in the separation agreement providing that such payments are nonmodifiable.” The simple answer is “yes, the trial court may do so.”
The Supreme Court’s analysis relied substantially on Conn. Gen. Stat. § 46b-224, which states that whenever a trial court orders a change of custody of a child and no specific orders are made with respect to preexisting support orders for the child, then the support order changes by virtue of the custody order. The Court held that the more specific language of § 46b-224 prevailed over the more general language of Conn. Gen. Stat. § 46b-86. In other words, Conn. Gen. Stat. § 46b-224 sets a “default rule that child support follows the children, unless the trial court has made a finding that another arrangement is appropriate.” The Supreme Court noted that children have a right to support which parents cannot contractually limit so as to make child support order non-modifiable – at least not under circumstances similar to those in Tomlinson.
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Sarah Stark Oldham is a divorce lawyer with Rutkin, Oldham & Griffin, L.L.C. and a Fellow of both the International and American Academy of Matrimonial Lawyers.
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