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Kirwan v. Kirwan

Court of Appeals of Connecticut

October 23, 2018


          Argued May 30, 2018

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Tindill, J., approved the agreement of the parties to enter into binding mediation/arbitration as to certain disputed matters; thereafter, the arbitrator issued an award and entered certain orders; subsequently, the arbitrator issued a clarification of the award; thereafter, the court granted the defendant's motion to confirm the arbitrator's award, and rendered judgment incorporating the arbitrator's award and clarification, and dissolving the marriage and granting certain other relief; subsequently, the court issued certain orders; thereafter, the court denied the defendant's motion to reargue and denied in part the defendant's motion for clarification, and the defendant appealed to this court; subsequently, the court, Tindill, J., denied the plaintiff's motion for contempt, and entered certain orders as to child support and attorney's fees, and the defendant filed a second appeal; thereafter, the court, Tindill, J., issued an articulation of its decision; subsequently, this court consolidated the appeals. Affirmed.

          Alan Scott Pickel, for the appellant (defendant).

          Joseph T. O'Connor, for the appellee (plaintiff).

          Sheldon, Prescott and Bear, Js.


          PRESCOTT, J.

         In these consolidated appeals arising out of a marital dissolution action, we must determine, inter alia, whether an arbitrator's factual finding regarding the gross income of a party, which was made in the course of determining alimony and the equitable distribution of marital assets, is binding on the court with respect to its subsequent adjudication of child support, an issue that was statutorily and contractually excluded from the arbitration. We conclude that it was proper for the trial court to make its own independent findings regarding gross income, unfettered by the previous findings of the arbitrator.

         The present appeals arose following the court's October 23, 2015 judgment dissolving the marriage of the plaintiff, Chelsea Chapman Kirwan, and the defendant, Laurence Kirwan. The judgment incorporated by reference a pendente lite arbitration award that had resolved most of the issues raised in the dissolution action, including alimony, the distribution of marital assets, and the enforceability of a premarital agreement. Both the parties' arbitration agreement and the arbitrator's award, however, expressly reserved for the Superior Court resolution of issues related to custody and child support. [1] Following an evidentiary hearing, the court, on December 7, 2016, issued child support orders, which, by agreement of the parties, were made retroactive to the date of the dissolution judgment. The defendant appeals from those child support orders (AC 40008). The defendant also appeals from a subsequent remedial order that the court issued in response to a motion for contempt and that required the defendant to make a $91, 000 lump sum payment to the plaintiff to satisfy a child support arrearage resulting from the court's December 7, 2016 order making his child sup- port obligation retroactive to October 23, 2015 (40047).[2]

         The defendant claims on appeal that the court improperly (1) failed to adhere to the arbitrator's factual findings regarding his gross income, as set forth in the arbitrator's award, despite the fact that the court incorporated the arbitrator's award by reference into the dissolution judgment; (2) found that his gross income from employment was $400, 000; (3) calculated his gross rental income from property awarded to him as part of the division of marital assets; (4) failed to take into consideration his payments of premiums for life insurance policies for the benefit of his children;[3] (5) failed to explain why the plaintiff was entitled to support payments that exceeded the child support guidelines' minimum presumptive amount; (6) gave prospective credit for voluntary child support payments made during the pendency of the child support hearings rather than crediting them against the lump sum arrearage; (7) ordered a lump sum repayment of the child support arrearage rather than permitting repayment on a periodic basis as contemplated by the child support arrearage guidelines; and (8) failed to dismiss the plaintiff's motion for contempt rather than considering the merits of the motion. We conclude that the defendant's claim regarding the manner in which he was credited for voluntary child support payments is moot because there is no practical relief that we could order in light of the fact that he has received full credit for such payments, and that the arguments advanced in support of the remainder of the defendant's claims are unpersuasive. Accordingly, we affirm the judgments of the court.

         The following facts and procedural history are relevant to our resolution of these appeals.[4] The parties were married in 2001. The defendant is a plastic surgeon with offices in New York, Norwalk, and London, as well as a consultant and a professor of plastic surgery. The plaintiff is college educated and worked in pharmaceutical sales until shortly after she married the defendant, at which time she worked for the defendant in his medical practice. The parties have three minor children together, one of whom has special needs.[5] Prior to their marriage, the parties entered into a premarital agreement that, in relevant part, limited the plaintiff's alimony in the event of divorce to $50, 000 a year for five years and allocated 45 percent of the value of the marital home to the plaintiff as her share of marital property. In September, 2012, the plaintiff initiated an action to dissolve the parties' marriage.

         On May 26, 2015, the court, Tindill, J., approved an agreement by the parties to enter into binding mediation/arbitration of the dissolution action.[6] Pursuant to the parties' arbitration agreement, which was made an order of the court, ‘‘[t]he parties agree[d] that the following issues in their action for dissolution of marriage shall be the subject of mediation and, if the parties are unable to resolve these issues via mediation, to binding arbitration . . . .'' The list of issues to be resolved in arbitration included the validity and enforceability of the premarital agreement; the validity of an alleged rescission of that premarital agreement; a determination of alimony in accordance with General Statutes § 46b-82; an equitable division of marital property, assets, and liabilities pursuant to General Statutes § 46b-81; division of attorney's fees and guardian ad litem fees; and any other relief deemed appropriate by the arbitrator ‘‘except as it pertains to child custody and issues of child support.''

         On August 4, 2015, the arbitrator, former Superior Court Judge Elaine Gordon, issued her arbitration award. As a preliminary matter, the arbitrator determined that the parties' premarital agreement was unconscionable, and thus unenforceable, due to ‘‘the present, uncontemplated circumstances'' of the par-ties.[7] The arbitrator issued a number of orders regarding alimony and the distribution of marital assets, including an order directing the sale of the marital home. In support of her orders, the arbitrator made several factual findings, including that ‘‘[t]he defendant's annual [gross] income is found to be approximately $400, 000 per year based on his income tax returns, business financial statements and the information he has provided to lending institutions on his applications.'' As previously noted, the arbitration award indicated that ‘‘[t]he issues of custody, access, child support, maintenance and cost of medical insurance for minor children and unreimbursed medical expenses are reserved to the Connecticut Superior Court.''[8]

         On September 1, 2015, the defendant filed a motion asking the court to confirm the arbitration award and to render judgment dissolving the parties' marriage in accordance with the arbitration award. On that same date, the plaintiff filed a motion asking the court to issue orders on the unresolved matters of child support and postsecondary educational expenses. Neither party filed an objection to the other party's motion, and the matters were set down for a hearing on October 23, 2015. At that time, the court rendered a judgment of dissolution of marriage that incorporated by reference the arbitration award and subsequent clarification.[9] The parties agreed that the court would determine the defendant's child support obligations, including the issue of unreimbursed medical expenses and child care, after an evidentiary hearing, and that child support obligations would be made retroactive to the date of dissolution.

         The court conducted an evidentiary hearing on the issue of child support and on certain other postjudgment motions of the parties beginning on December 23, 2015, and continuing to January 22, May 25, June 20 and June 29, 2016. Both parties were present at all hearings and represented by counsel. Both parties testified and submitted a number of exhibits into evidence.

         On December 7, 2016, the court issued a memorandum of decision regarding child support. The court indicated that it carefully had reviewed the parties' various claims for relief, memoranda in support thereof, trial briefs, replies, evidence, testimony, relevant rules, statutory authority, case law, and the arguments of counsel. The court made a number of credibility determinations and factual findings, including that neither party ‘‘was credible regarding their expenses for the children'' and that ‘‘[t]he defendant's testimony and evidence regarding his sources of income was not credible.'' The court found that, ‘‘[b]ased on the credible evidence before the court, the defendant has a gross annual income of $560, 637-$400, 000 gross income from employment as Dr. K Services, P.C., plus $160, 637 of rental income from various real estate investments.'' The court also found that ‘‘[t]he parties' combined net weekly income is $7990'' and, thus, that ‘‘[t]he parties' net weekly income exceeds the $4000 limit contained within the child support guidelines.'' The court calculated that ‘‘[f]or three children, the presumptive amount of child support is between $824 and $1564 per week . . . .''[10]

         The court ordered that the defendant ‘‘shall pay $1500.00 per week in child support for the parties' three children, retroactive to October 23, 2015 . . . .'' (Emphasis added.) The court also ordered that the plaintiff is responsible for 25 percent of any unreimbursed medical expenses and child care, and the defendant is responsible for the remaining 75 percent. Moreover, ‘‘[t]he [d]efendant shall be given credit for the $18, 432.41 in voluntary, postjudgment child support payments made from the date of the dissolution through June 30, 2016.'' The court instructed the defendant that if he claimed any additional support payments after June 30, 2016, he should provide the plaintiff's counsel with proof of those payments within one week of the court's order. The court stated that credit for the voluntary support payments ‘‘shall be in the form of a deduction from current support in equal payments over the course of one year.'' (Emphasis added.) In other words, given that there are fifty-two weeks in a year, the defendant would be entitled to reduce his $1500 child support obligation each week for the first year by an amount equal to one fifty-second of his total voluntary postjudgment child support payments. Finally, the court ordered that the defendant ‘‘shall continue to provide and maintain health, dental, and vision insurance for the minor children, '' and ‘‘shall maintain insurance on his life in the amount of $2, 000, 000, naming the three minor children as equal beneficiaries, for as long as he has a child support obligation to the twins.''

         On December 23, 2016, the defendant filed a motion to reargue the court's December 7, 2016 decision in which he claimed that the court had miscalculated his income for purposes of the support orders. Specifically, he argued that the arbitrator had found his gross annual income to be $400, 000, the court had adopted that finding in its judgment of dissolution when it incorporated the arbitration award therein and, therefore, ‘‘the court should not have added on top of that figure rental income that was already included in the total annual income finding of $400, 000.''[11] Furthermore, he argued that the court had failed to reduce his net income by the amount he had paid in premiums for the life insurance policy benefiting the children. The court denied the motion to reargue on December 29, 2016, without comment. The defendant also filed a motion for clarification requesting, inter alia, that the court set forth ‘‘the manner and method'' it used to calculate the defendant's gross income. The court denied that motion in part.

         On December 12, 2016, the plaintiff filed a motion for contempt claiming that a child support arrearage of $91, 000 existed because the court had made the defendant's child support obligation retroactive to the date of dissolution. The plaintiff argued that the defendant should have paid the arrearage from money that the court had ordered released from an escrow account to the defendant.[12] In response, the defendant filed an objection to the plaintiff's motion for contempt, arguing that there was never a clear and unambiguous court order requiring him to immediately pay any child support arrearage arising from the December 7, 2016 orders. Accordingly, he argued that the motion for contempt should be denied and that he was entitled to attorney's fees for having to defend against a frivolous motion.

         The court held a hearing on the motion for contempt on January 3, 2017. The following day, the court issued an order denying the motion for contempt, explaining that the plaintiff had failed to meet her burden of proving by clear and convincing evidence that the defendant wilfully had violated a court order. The court nevertheless took the opportunity to enter a remedial order requiring the defendant to pay the $91, 000 child support arrearage to the plaintiff, in full, by no later than April 12, 2017.[13] The court also denied the defendant's request for attorney's fees. These appeals followed.

         We begin by stating the overarching and well settled standard that governs our review of claims in divorce actions. ‘‘An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the [evidence] presented. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . 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. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'' (Emphasis added; internal quotation marks omitted.) Milazzo-Panico v. Panico, 103 Conn.App. 464, 467-68, 929 A.2d 351 (2007). ‘‘As has often been explained, the foundation for this standard 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.) Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d 449 (2013).


         The defendant first claims that, in determining his annual income for the purpose of child support, the court was bound by the factual findings of the arbitrator as set forth in the arbitration award and incorporated by reference into the court's judgment of dissolution. He argues that the court's finding that he had a total gross annual income of $560, 637 was inconsistent with the prior finding of the arbitrator that his gross annual income was $400, 000, and, therefore, the court's finding was clearly erroneous. According to the defendant, because the court's child support orders were based on an erroneous factual finding, this court should order them set aside. The plaintiff responds that a trial court is not bound to accept the factual findings in an arbitrator's award when determining an issue that was specifically excluded by the parties from arbitration and expressly reserved to the Superior Court by the award and by statute. We agree with the plaintiff and, accordingly, reject the defendant's claim.

         Stated succinctly, the issue before us is whether the arbitrator's factual finding regarding gross income, which was made in the context of determining alimony and other issues submitted to arbitration, is entitled to preclusive effect in the court's subsequent adjudication of child support, an issue that was expressly excluded from arbitration by General Statutes § 52-408, which excludes from the scope of arbitration in dissolution actions ‘‘issues related to child support, '' and the parties' arbitration agreement. In arguing that the trial court was required to adopt the arbitrator's findings of fact regarding the parties' gross income, the defendant relies on the deference that courts generally have afforded to arbitration decisions and also, by implication, invokes the doctrine of collateral estoppel or issue preclusion.

         The defendant's arguments require us to engage in statutory interpretation of § 52-408, which presents a question of law over which our review is plenary. See Smith v. Smith, 249 Conn. 265, 272, 752 A.2d 1023 (1999). ‘‘[W]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine the meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .'' (Internal quotation marks omitted.) Sosin v. Sosin, 300 Conn. 205, 227-28, 14 A.3d 307 (2011).

         We begin by examining the text of § 52-408, which legislatively sanctions the use of arbitration in civil actions, including actions for the dissolution of marriage. The statute provides in relevant part: ‘‘[A]n agreement in writing between the parties to a marriage to submit to arbitration any controversy between them with respect to the dissolution of their marriage, except issues related to child support, visitation and custody, shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.'' (Emphasis added.) General Statutes § 52-408.

         The statute's use of the term ‘‘issues related to child support'' is both broad and unqualified. For example, the statute does not distinguish between legal and factual issues. The absence of such qualifying language conveys the legislature's intent to render in arbitrable not only a final determination of a party's child support obligations but any and all related issues, both legal and factual, that pertain to such a determination.

         Our child support guidelines are based on an income share model; see Child Support and Arrearage Guidelines (2015), preamble, § (d); meaning an accurate and complete determination of the parties' respective incomes is essential to ensure that adequate resources are directed toward affected children. Because a finding of the parties' income is a mandatory prerequisite to the determination of a child support order, it is indisputably an ‘‘issue related to child support, '' and such a finding cannot be conclusively determined by an arbitrator for purposes of calculating child support under the clear and unambiguous language of § 52-408. The defendant offers no analysis of § 52-408 in asserting that the arbitrator's factual finding regarding the defendant's income should be binding on a court determining child support obligations.[14]

         Even if we were not convinced that the exclusionary provision of § 52-408 is clear and unambiguous as to its scope, our interpretation is consistent with extrinsic evidence of the legislature's intent, including circumstances surrounding the enactment of the provision at issue, the policy it was intended to implement, and its relationship to common-law principles. The language in § 52-408 excluding from arbitration issues related to child support was added to the statute by the legislature in 2005.[15] See Public Acts 2005, No. 05-258, § 2 (P.A. 05-258). The exclusionary language is consistent with the importance that this state attaches to accurate and equitable determinations of child support as reflected in our child support guidelines.[16] Although it is true that the promulgation of our child support guidelines, which are applicable to all determinations of child support, ‘‘substantially circumscribe[d] the traditionally broad judicial discretion of the court in matters of child support''; (internal quotation marks omitted) Maturo v. Maturo, 296 Conn. 80, 116, 995 A.2d 1 (2010); the court nevertheless retains discretion to deviate from those guidelines if it determines that doing so ‘‘would be in the best interests of the child and financially equitable to the parties.'' Id.

         Custody and support issues not only impact the divorcing parents but also significantly impact the future health and welfare of children for whom child support is intended to benefit. In Guille v. Guille, 196 Conn. 260, 262-64, 492 A.2d 175 (1985), our Supreme Court discussed the independent nature of a child's right to support and held that this right cannot be vitiated or circumscribed by way of an agreement between the parents. In Guille, the court first recognized that General Statutes § 46b-84 (a) imposes a duty on divorcing parents to ‘‘maintain the child according to their respective abilities, if the child is in need of maintenance.'' Id., 263. In the court's view, this statutory duty ‘‘creates a corresponding right in the children to such support.'' (Internal quotation marks omitted.) Id. The court in Guille also emphasized that although child support orders are ‘‘made and enforced as incidents to divorce decrees . . . the minor children's right to parental support has an independent character, separate and apart from the terms of the support obligations as set out in the judgment of dissolution.'' (Citation omitted; internal quotation marks omitted.) Id.

         ‘‘The independent nature of a child's right to parental support [had been] recognized by [our Supreme Court] long before that right was codified in our statutes.'' Id. As an example, the court in Guille cited to its decision in Burke v. Burke, 137 Conn. 74, 80, 75 A.2d 42 (1950), in which it stated: ‘‘A husband and wife cannot make a contract with each other regarding the maintenance or custody of their child which the court is compelled to enforce, nor can the husband relieve himself of his primary liability to maintain his child by entering into a contract with someone else to do so. The welfare of the child is the primary consideration. The court may recognize the contract, but such contract will not be enforced longer than it appears to be for the best interests of the child, and parents entering into such a contract are presumed to do so in contemplation of their obligations under the law and the rights of the child.'' (Internal quotation marks omitted.) Guille v. Guille, supra, 196 Conn. 264.

         In the arbitration agreement in the present case, the list of issues to be resolved included the validity and enforceability of the premarital agreement; the validity of an alleged rescission of that premarital agreement; a determination of alimony; an equitable division of marital property; and attorney's fees and guardian ad litem fees. The resolution of those issues could not ‘‘affect the minor children's right . . . for parental maintenance''; id., 267; and extending the impact of the parent's resolution of nonsupport issues would violate the statutory prohibition against arbitrating child support. Furthermore, it would be inconsistent with our concerns for the best interest of children, an ideal that permeates our statutes and decisional law, to permit issues related to child support to be resolved conclusively in arbitration, a nonjudicial forum outside the control of our courts. See, e.g., Masters v.Masters, 201 ...

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