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Lesueur v. Lesueur

Court of Appeals of Connecticut

December 4, 2018

JANINE LESUEUR
v.
ANDREW LESUEUR

          Argued March 23, 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 and tried to the court, Hon. Stanley Novack, judge trial referee; judgment dissolving the marriage and granting certain other relief; thereafter, the court, Tindill, J., granted the defendant's motion for modification of custody and child support; subsequently, the court, Tindill, J., denied the plaintiff's motions for modification of unallocated alimony and child support, and the plaintiff appealed to this court; thereafter, the court, Tindill, J., denied the plaintiff's motion for an articulation; subsequently, this court granted the plaintiff's motion for review, and the court, Tindill, J., issued an order. Reversed in part; further proceedings.

          Janet A. Battey, with whom were Olivia M. Hebens-treit and, on the brief, Gaetano Ferro, for the appellant (plaintiff).

          Harold R. Burke, for the appellee (defendant).

          Lavine, Prescott and Eveleigh, Js.

          OPINION

          LAVINE, J.

         In this postmarital dissolution appeal, the plaintiff, Janine LeSueur, appeals from the postjudgment orders of the trial court granting the motion for modification of custody and child support filed by the defendant, Andrew LeSueur, and denying her motion for modification of unallocated alimony and child support. Specifically, the plaintiff claims that the court, Tindill, J., (1) abused its discretion by granting the defendant's motion to modify custody and child support because the child support order is predicated on clearly erroneous factual findings and because it terminated the defendant's child support obligation retroactively without sufficient information to evaluate the parties' financial circumstances, and without considering that she continued to incur and pay expenses for the parties' son from September 2, 2015, until the date of the hearing; (2) misconstrued the parties' separation agreement (agreement) regarding the parties' obligations to pay for their children's postsecondary education; and (3) abused its discretion by denying her motion to modify unallocated alimony and support. We affirm in part and reverse in part the judgment of the trial court.

         The parties' marital history previously was set forth in LeSueur v. LeSueur, 172 Conn.App. 767, 162 A.3d 32 (2017), which concerned an appeal by the defendant from certain postjudgment motions (defendant's appeal). The parties were married on November 28, 1992, and divorced on January 27, 2011. Id., 770. At the time of dissolution, ‘‘the parties had two minor children: a daughter, born in July, 1997; and a son, born in January, 1999. The judgment of dissolution incorporated the parties' separation agreement that provided that the plaintiff and the defendant would have joint legal custody and the plaintiff primary physical custody of the two children. The separation agreement also provided . . . that the defendant . . . pay the plaintiff unallocated alimony and child support from March 1, 2011 until June 30, 2020.'' Id. Subsequently, the defendant assumed primary physical custody, first of the parties' daughter; id., 770-71; and then their son. The defendant's appeal concerned issues related to child support for the parties' daughter. The present appeal concerns child support related to their son, among other things, and is factually and procedurally distinct from the defendant's appeal.

         The record in the present appeal reveals the following procedural history. On August 14, 2015, the defendant filed a motion to modify custody and child support, alleging in part that circumstances regarding custody of the parties' son had changed substantially. The defendant represented that the parties had agreed that, as of July 31, 2015, their son would live with the defendant and have liberal visitation with the plaintiff.[1] The defendant, therefore, asked the court to terminate his child support obligation to the plaintiff and to order the plaintiff to pay him child support.[2] On February 8, 2016, the court accepted the parties' stipulation regarding the son's custody change and scheduled a hearing on the issue of child support.

         On February 10, 2016, the plaintiff filed two motions for modification of certain provisions of the separation agreement. In one motion, she claimed that there had been a substantial change in her financial circumstances due to a reduction in her employment and salary. She, therefore, asked the court to increase the amount of unallocated alimony and child support she received from the defendant.[3] In her second motion, titled ‘‘Motion for Modification of Children's Expenses and Tuition, Postjudgment, '' the plaintiff claimed that there had been a substantial change in her financial circumstances, and therefore, she asked the court to order the defendant to pay 100 percent of the educational ‘‘add-on'' expenses for their son and all costs associated with his private school tuition.[4] (Internal quotation marks omitted.)

         The court heard argument on the parties' motions on three days in the spring of 2016, [5] and requested that the parties submit posthearing briefs. The court issued orders on the defendant's motion to modify child support on October 11, 2016. The court found that the parties' son had been living with the defendant since the date he filed his motion to modify child support and that he had continued to pay the plaintiff child support in the amount of $996.27 per week since September 1, 2015. The court granted the defendant's motion to modify child support, thereby terminating his child support obligation to the plaintiff retroactive to September 2, 2015, and ordered the plaintiff to reimburse the defendant for the child support that he had paid her while their son was living with him.

         On October 13, 2016, the court issued orders on the plaintiff's motion for modification of alimony and support and motion for modification of children's expenses and private school tuition. The court found that the plaintiff's salary had decreased since the time of dissolution and that the decrease constituted a substantial change of circumstances. The court also found that the plaintiff's monthly expenses had decreased since January 27, 2011. In addition, the court found that the pretax income from employment formulae used to calculate the amount of unallocated support the defendant was to pay the plaintiff continued to be sufficient to fulfill the intended purpose of equalizing the incomes of the parties and supporting the children. See footnote 3 of this opinion. The court, therefore, denied the plaintiff's motion to modify unallocated alimony and child support.[6]

         Pursuant to the oral request of the parties' counsel; see footnote 5 of this opinion; the court found that, had the family stayed intact, the parties more likely than not would have provided support for their children's postsecondary education. It also found that the parties are well educated and have the income and assets to assist their children with the cost of higher education. The court found ample evidence of the children's academic commitment, preparedness, and athletic prowess. The parties mutually had agreed that their daughter should attend Princeton University and that their son should attend Dartmouth College.[7] The court also concluded that, pursuant to the agreement, neither the ‘‘UConn cap'' nor the cost of a four year degree within the Connecticut state university system was applicable.[8]The court, therefore, ordered the parties to ‘‘timely pay education support . . . to Princeton University and Dartmouth College'' as required by paragraphs 7 (f) and 13 (B) (iv) of the separation agreement. The plaintiff appealed.

         We begin with the well settled standard of review in family matters. ‘‘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 facts 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.'' (Internal quotation marks omitted.) Ferraro v. Ferraro, 168 Conn.App. 723, 727, 147 A.3d 188 (2016).

         I

         The plaintiff's first claim is that the court abused its discretion by granting the defendant's motion to modify custody and child support because (1) its child support order is predicated on a clearly erroneous factual finding, and (2) it terminated the defendant's child support obligation retroactively without sufficient information to calculate the parties' financial circumstances as of September 2, 2015, and without considering that she continued to incur and pay expenses related to the son.[9]We agree that the court's order that the plaintiff pay child support is predicated on a clearly erroneous factual finding. We do not agree, however, that the court lacked sufficient information regarding the parties' financial circumstances as of September 2, 2015, or that the voluntary expenses the plaintiff incurred overcame the presumption that child support follows the child.

         The following additional facts are relevant to our resolution of this claim. As previously stated, as of July 31, 2015, pursuant to the parties' informal agreement, their son began to reside with the defendant. On August 14, 2015, the defendant filed a motion for modification of custody and child support. He represented that there had been a substantial change in circumstances due to the fact that the parties' son was living with him and requested that, because he had become financially responsible for their son, his child support obligation to the plaintiff be terminated and that the plaintiff be ordered to pay him child support. On February 8, 2016, the court accepted the parties' stipulation that their son reside with the defendant and ordered a hearing to be held on the issue of child support.

         The parties appeared before the court for an evidentiary hearing on March 28, May 17, and June 1, 2016. At that time, the defendant argued that the change in the primary physical custody of the parties' son required a modification of the child support portion of the unallocated support order because child support follows the child. He also argued that he had been paying the plaintiff child support pursuant to the court's July, 2015 order that modified his child support obligation when he assumed custody of the daughter. The defendant contended that, as a matter of law and equity, he was entitled to be reimbursed by the plaintiff for the child support he had paid her since September 10, 2015, the date he served the plaintiff with the motion to modify child support.

         The plaintiff argued that the court should not modify the defendant's child support obligation because the agreement called for unallocated alimony and child support calculated on the basis of the defendant's pretax income from employment and that alimony and child support should not be broken into separate amounts.[10]The plaintiff requested that, if the court granted modification of child support and did so retroactively, to order retroactivity from February 8, 2016, the date the transfer of custody was accepted by the court, not the date the defendant's motion to modify was served. In addition, the plaintiff claimed she continued to incur expenses for their son after the motion was served.

         In its order, the court found, contrary to the plaintiff's argument, that the defendant was not seeking to modify the term, duration, or the percentage of the unallocated support formulae set forth in paragraph 12 of the agreement, but was seeking a determination of the plaintiff's child support obligation for the parties' son who resided with him. The court also found that the defendant had demonstrated a substantial change in circumstances that justified a modification of child support, i.e., the son was living full-time with him as of the date of the motion for modification was filed. The defendant had paid the plaintiff child support in the amount of $996.27 per week since September 1, 2015. The court, therefore, granted the defendant's motion to modify child support and terminated his child support obligation retroactively to September 2, 2015. The court found that the defendant was entitled to reimbursement from the plaintiff in the amount of $57, 783.66.

         The court found on the basis of the parties combined weekly income of $12, 980 that the plaintiff's presumptive child support obligation for the parties' son pursuant to the guidelines was $137 per week. The court, therefore, ordered the plaintiff to pay the defendant $137 per week in child support, commencing November 1, 2016.

         A

         The plaintiff claims that the court improperly granted the defendant's motion to modify child support and ordered her to pay the defendant child support on the ground that the court's factual finding regarding her annual income is clearly erroneous because it improperly includes alimony and child support income. We agree.

         ‘‘Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . 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. . . . Therefore, to 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.'' (Citation omitted; internal quotation marks omitted.) Mensah v. Mensah, 145 Conn.App. 644, 651- 52, 75 A.3d 92 (2013).

         ‘‘The [plaintiff] is entitled to relief from the trial court's improper rulings only if one or more of those rulings were harmful. . . . It is well settled that the burden of establishing harm rests on the appellant. . . . To meet this burden in a civil case, the appellant must show that the ruling would likely affect the result.'' (Citations omitted; internal quotation marks omitted.) Tevolini v. Tevolini, 66 Conn.App. 16, 30-31, 783 A.2d 1157 (2001).

         The following additional facts are relevant to our resolution of this claim. On March 29, 2017, after she had appealed, the plaintiff filed a motion for articulation; see Practice Book § 66-5; requesting, among other things, that the trial court articulate the basis of its calculation of the court's child support guidelines worksheet docket number 150.[11] The court denied the motion for articulation, and the plaintiff filed a motion for review in this court. See Practice Book § 66-7. This court granted the motion for review and ordered the trial court to articulate, in relevant part, the following: (1) the factual basis for stating on worksheet number 150 that the plaintiff's gross weekly income was $5820 and that her net weekly income was $3680; (2) whether the alimony received by the plaintiff was included in the calculation that determined the plaintiff's gross income as stated on worksheet number 150; and (3) the factual basis for stating on worksheet number 150 that the defendant's net weekly income was $9301.

         In its articulation, the trial court stated that the factual basis for using $5280 as the plaintiff's gross weekly income and $3680 as her net weekly income was the plaintiff's May 17 and May 20, 2016 financial affidavits and her May 17, 2016 testimony. The court further stated that the alimony received by the plaintiff was not included in her gross income amount on worksheet number 150. Additionally, the court articulated that the factual basis for using $9301 as the defendant's net weekly income was his May 17, 2016 financial affidavit and his testimony on May 17, 2016.

         On appeal, the plaintiff claims that in determining her annual income, the court erred by utilizing the information on the financial affidavit she submitted on May 20, 2016, which included income in the form of alimony, [12] and not the worksheets submitted by the parties at the hearing on May 17, 2016. The worksheet that the plaintiff submitted states that her gross weekly income is $1827 and her net weekly income is $1332. The worksheet that the defendant submitted states that the plaintiff's gross weekly income is $2697 and her net weekly income is $2141. Neither of the worksheets submitted by the parties included alimony income to the plaintiff. In October, 2016, when the court issued its decisions on the motions for modification submitted by the parties, it appended worksheet number 150 to its orders. Worksheet number 150 states the court's findings that the plaintiff's gross weekly income was $5820 and her net weekly income was $3680. In its articulation, the court stated that it used the plaintiff's financial affidavit, not her worksheet, to make its calculations, and that it did not include the plaintiff's income from alimony when it determined her annual income.

         On the basis of our review of the exhibits in the record and the discrepancies between the parties' worksheets regarding the plaintiff's income and the court's determination, we are left with the firm conviction that a mistake has been made. There is no legally proper evidentiary basis before the court to support its determination of the plaintiff's gross or net weekly income at the time it considered the motions for modification. In addition to using the incorrect documents to calculate the plaintiff's income, the plaintiff contends that the court improperly included alimony in its calculations. The plaintiff included the alimony she received on her financial affidavit, and therefore, because the court used the plaintiff's financial affidavit, it necessarily must have included the plaintiff's alimony when it performed its calculations. We agree with the plaintiff that, pursuant to our child support statutes and regulations, the court may not include income from alimony when it calculates the income of an alimony recipient for purposes of determining child support.

         ‘‘Our review of the court's interpretation of . . . § 46b-215a-1 (11) . . . of the Regulations of Connecticut State Agencies is plenary. . . . 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. . . . 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.'' (Citation omitted; emphasis omitted; internal quotation marks omitted.) Robinson v. Robinson, 172 Conn.App. 393, 397-98, 160 A.3d 376, cert. denied, 326 Conn. 921, 169 A.3d 233 (2017); see also General Statutes § 46b-84.[13]

         The defendant agrees that the court's finding of the plaintiff's weekly income is erroneous, but he argues that the error is harmless and had a de minimis impact on the court's order that the plaintiff pay him $137 per week in child support. The defendant, however, ...


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