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, ...