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Robinson v. Robinson

Court of Appeals of Connecticut

April 25, 2017

MARGARET ROBINSON
v.
DONALD J. ROBINSON

          Submitted on briefs November 18, 2016

         Appeal from Superior Court, judicial district of New London at Norwich, Goodrow, J. [dissolution judgment]; Carbonneau, J. [motion for modification of child support and custody].

          Donald J. Robinson, self-represented, the appellant (defendant), filed a brief.

          DiPentima, C. J., and Beach and Pellegrino, Js.

          OPINION

          BEACH, J.

         The defendant, Donald J. Robinson, appeals from the judgment of the trial court denying his postjudgment motion to modify his child support obligation to the plaintiff, Margaret Robinson. The defendant claims that the court erroneously denied his motion for modification because (1) its calculation of presumptive child support was erroneous; (2) it erroneously found shared physical custody; and (3) there was no justification for ordering an upward deviation from the presumptive amount of child support provided for in the guidelines. We do not agree and affirm the judgment of the trial court.

         The record discloses the following relevant facts and procedural history. The parties were married in September, 1993. There are four minor children issue of the marriage. The parties were divorced on February 3, 2014. The divorce was uncontested and the court incorporated by reference the parties' separation agreement in its judgment of dissolution. That agreement provided that the parties were to share joint legal custody of their minor children, whose primary residence was to be with the plaintiff, while the defendant was to enjoy ‘‘liberal and unrestricted parental access.'' It also provided that the defendant was to pay the plaintiff $400 per week in child support for the first year subsequent to the dissolution, $300 per week in the second year, and $200 per week in the third year.[1] The agreement provided as well that the defendant was to pay periodic alimony to the plaintiff in the amount of $1000 per week.[2]

         On June 18, 2015, the self-represented defendant[3]moved for a downward modification of child support and a modification in the formal custody status, such that the primary residence of the three minor children, who were then actually living with him, be changed to reflect that reality.[4] Following a hearing, the court denied the defendant's motion for modification of child support. The court did order that the primary residence of three of the four then minor children be changed so that it would be with the defendant, but found, nonetheless, that there was a shared physical custody arrangement. The court found that the presumptive amount of child support according to the guidelines was $221 per week, but that an upward deviation to $300 per week, the same amount called for in the agreement and the dissolution judgment, was justified in the circumstances. This appeal followed.

         I

         The defendant first claims that the court erred in its calculation of presumptive child support, because, in its application of the child support guidelines, it neither reduced the defendant's income by the amount of alimony he paid nor increased the plaintiff's income by a corresponding amount. We disagree.

         The defendant contends that § 46b-215a-1 (11) (B) of the Regulations of Connecticut State Agencies is specific as to the items excluded from the definition of ‘‘gross income, '' and because that list does not include alimony as an exclusion, it must be included in the income attributed to the plaintiff.[5] He further argues that the list in § 46b-215a (11) (A) of twenty-two items included as ‘‘gross income'' is nonexhaustive; therefore, the fact that alimony is not included in that list is not dispositive. The amount of alimony, then, should have been added to the plaintiff's income and subtracted from the defendant's income for the purpose of computing the proportionate shares of child support to be paid by either party under the guidelines, according to the defendant's reasoning.

         ‘‘Our review of the court's interpretation of . . . § 46b-215a-1 (11) . . . of the Regulations of Connecticut State Agencies is plenary.'' Lusa v. Grunberg, 101 Conn.App. 739, 761, 923 A.2d 795 (2007). Section 46b-215a-1 (11) of the Regulations of Connecticut State Agencies defines gross income as ‘‘the average weekly earned and unearned income from all sources before deductions . . . .'' That section includes a nonexhaustive list of twenty-two inclusions. In that list of inclusions is: ‘‘alimony being paid by an individual who is not a party to the support determination.'' (Emphasis added.) Regs., Conn. State Agencies § 46b-215a-1 (11) (A) (xix). The specific wording of this inclusion makes clear that only alimony received from a nonparty to the support determination is included in gross income. See Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 850-51, 937 A.2d 39, 48 (2008) (‘‘the tenet of statutory construction referred to as expressio unius est exclusio alterius . . . may be translated as the expression of one thing is the exclusion of another. . . . [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute.'' [Internal quotation marks omitted.]); see also Teresa T. v. Ragaglia, 272 Conn. 734, 751, 865 A.2d 428 (2005) (agency regulations construed in accordance with accepted rules of statutory construction). Because the defendant is a party to the action, his alimony payments to the plaintiff are not included as income to her. Further, alimony paid is not listed as an exclusion serving to reduce the defendant's income for the purpose of determining child support payments. See Regs., Conn. State Agencies § 46b-215a-1 (11) (B). We conclude that the court properly applied the guidelines to find that the presumptive amount of child support to be paid by the defendant was $221 per week.[6]

         II

         The defendant next claims that the court erred in finding a shared physical custody arrangement. We note at the outset that this appeal presents a degree of analytical murkiness. The defendant's motion for modification was, by its terms, grounded on the proposition that there had been a substantial change of circumstances because of the change of residence of three of the children. The court, which did not write a formal memorandum of decision but, rather, announced its decision on the record and issued brief written orders, appears to have reasoned that there had been a change of circumstances, but that the change did not equitably compel a departure from the prior agreement in the amount of child support to be paid. The court further based its ultimate decision on a finding that the child support guidelines provided for a presumptive payment of $221 per week, and an upward deviation to $300 per week was justified, at least in part, by a finding of shared physical custody and the inability of the plaintiff to provide appropriately unless she received the greater amount. In this context, the self-represented defendant quite understandably chose to address the court's ...


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