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Family Law Appellate Court Opinion:

by Dowd, Jeffrey


AC45592 - Marcus v. Cassara (Motion to modify child support regarding extracurricular activities, "In the present case, we first conclude that the court exceeded its authority in modifying the order regarding the costs of extracurricular activities because it based its decision on a ground that was not contained in the plaintiff’s motion for modification. ... In his motion for modification, the plaintiff did not characterize the order as a substantial deviation from the child support guidelines or argue that the court issuing the December, 2009 decision improperly failed to make the requisite findings in support thereof. In fact, he did not request that his obligation be entirely eliminated or reduced to $0 and, instead, he requested that the order be modified so that each party would be ‘‘equally responsible’’ for the expenses of the children’s extracurricular activities, i.e., that they each would pay 50 percent of those costs. The court, therefore, improperly considered whether the extracurricular activities order was a deviation under the child support guidelines and modified the order on a ground not contained in the plaintiff’s motion for modification. ...

To be clear, we do not suggest that the extracurricular activities order is not subject to modification. Instead, we conclude that the order was not modifiable on the basis that it was a substantial deviation from the guidelines. The court considering the plaintiff’s motion for modification still had the ability to modify the extracurricular activities order on the basis of a substantial change in the circumstances of either party; see Powers v. Hiranandani, supra, 197 Conn. App. 405–406; and, in the present case, the plaintiff argued that there had been "material changes in circumstances’’ because the defendant was unilaterally signing the children up for activities ‘‘[that] he cannot afford.’’ In its ruling, the court did not consider the financial reasons on which the plaintiff relied, expressly observing that it had not decided the motion on this basis. Accordingly, on remand, the court should consider the merits of this basis for modification in adjudicating the plaintiff’s motion."