207 Conn.App. 807
Conn. App. Ct.2021Background
- Parties married in 2011, have two minor children; dissolution trial in 2018 and judgment issued December 2018.
- Plaintiff is a per diem nurse with variable hours and limited liquid assets; owns a Worcester home (rented), planned relocation to Worcester.
- Defendant is a biostatistician paid via grant-funded projects; his income fell by ~50% from prior years when several grants expired; owns Ashford home (purchased pre‑marriage) and has significant retirement accounts.
- During the marriage and after the dissolution filing, defendant made unilateral financial moves: two $10,000 overpayments on Ashford mortgage and deposits into CHET education accounts (totaling significant sums), and payments toward Nicaragua property; plaintiff sought reimbursement/equalization.
- Trial court: dissolved marriage, awarded joint legal/physical custody, allowed plaintiff to relocate to Worcester and designated her home primary for school purposes; ordered child support of $325/week (deviated from guideline amount), lump‑sum property settlement to plaintiff of $52,500 (partly to account for unilateral transfers), transfer of $175,000 from defendant’s retirement to plaintiff, and ordered defendant to pay plaintiff $25,000 appellate retainer.
- Defendant appealed; court issued articulations clarifying income/earning‑capacity findings (defendant earning capacity ~$198,536; plaintiff actual income used), and this appeal addresses child support calculation, income findings, property division/dissipation, appellate fees, and custody/relocation orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Child support: did court identify presumptive guideline amount before deviating? | Anketell: court properly calculated presumptive amount on actual incomes and justified deviations. | Kulldorff: court relied on earning capacity rather than actual income for presumptive amount and failed to identify presumptive amount. | Court used parties’ current incomes to compute presumptive ($300/wk), found it inequitable, then applied earning‑capacity and other deviations to arrive at $325/wk; no error. |
| 2. Income / earning capacity determinations | Anketell: use plaintiff’s actual income; defendant’s earning capacity may be considered for deviation. | Kulldorff: court’s imputation of high earning capacity was speculative given grant variability; plaintiff’s income misstated and should have higher imputed hours. | Trial court’s earning‑capacity finding for defendant supported by prior earnings; plaintiff’s income misstatement deemed scrivener’s error; court reasonably declined to impute higher hours to plaintiff. |
| 3. Property award / dissipation claim | Anketell: award compensates for defendant’s unilateral allocation of marital assets that reduced liquid marital pool. | Kulldorff: court effectively found dissipation without meeting the doctrine’s elements. | Court did not find dissipation; it equitably accounted for unilateral transfers and reduced liquidity when dividing assets—no abuse of discretion. |
| 4. Award of appellate attorney’s fees | Anketell: needs retainer; liquid assets insufficient and awarding fees prevents undermining other financial relief. | Kulldorff: plaintiff had ample assets so award was unwarranted (invokes Hornung). | Court appropriately exercised discretion—most plaintiff’s awards were illiquid; fee retainer ($25,000) was a large share of her liquid assets and award considered statutory factors. |
| 5. Custody / relocation & exchange times | Anketell: relocation and school‑designation reasonable; early transfers enable her employment and suit children's schedules. | Kulldorff: relocation harms his parenting time and commute; no sufficient benefit shown for Worcester schools. | Court’s custody and relocation orders supported by record (counselor recommendation and testimony); 6:15 a.m. exchanges justified—no abuse of discretion. |
Key Cases Cited
- Fox v. Fox, 152 Conn. App. 611 (Conn. App. 2014) (presumptive guideline amount must be identified before deviating; earning capacity is a deviation criterion)
- Barcelo v. Barcelo, 158 Conn. App. 201 (Conn. App. 2015) (trial court erred when it based support on imputed income without stating presumptive amount or justifying deviation)
- Budrawich v. Budrawich, 132 Conn. App. 291 (Conn. App. 2011) (three required findings for deviation: presumptive amount, finding inequitable application, and which deviation criteria justify variance)
- Syragakis v. Syragakis, 79 Conn. App. 170 (Conn. App. 2003) (examples of sufficient findings to justify deviation)
- Milazzo-Panico v. Panico, 103 Conn. App. 464 (Conn. App. 2007) (earning capacity may be used in financial awards where appropriate)
- Hornung v. Hornung, 323 Conn. 144 (Conn. 2016) (attorney’s‑fee awards analyzed in light of the obligee’s liquid assets; awards cannot be justified where recipient has ample liquid assets)
- Misthopoulos v. Misthopoulos, 297 Conn. 358 (Conn. 2010) (distinguishing liquid from illiquid assets when assessing ability to pay counsel fees)
- Powell-Ferri v. Ferri, 326 Conn. 457 (Conn. 2017) (defining dissipation doctrine and its typical factual predicates)
- Brown v. Brown, 148 Conn. App. 13 (Conn. App. 2014) (trial court may base awards on earning capacity rather than actual income under appropriate circumstances)