186 Conn. App. 431
Conn. App. Ct.2018Background
- Janine and Andrew LeSueur divorced in 2011; their judgment incorporated a separation agreement that provided joint legal custody, primary physical custody to Janine initially, and an unallocated alimony/child-support payment from Andrew (formula based on his pretax employment income) through 2020.
- Over time Andrew assumed primary physical custody first of the daughter and later (summer 2015) the son; Andrew filed a motion (Aug. 14, 2015) to modify custody and child support for the son and sought termination/reimbursement of child support he had been paying.
- The trial court accepted a stipulation that the son lived with Andrew, granted Andrew’s motion, terminated his child-support obligation retroactive to Sept. 2, 2015, and ordered Janine to reimburse payments he made; it also set Janine’s new child-support obligation at $137/week starting Nov. 1, 2016.
- Janine filed motions to modify the unallocated alimony/child-support formula and to shift educational/add-on expense obligations; the trial court found Janine’s income had decreased but also found her expenses decreased and denied modification of the percentage formulae; it ordered both parents to pay agreed-to college tuitions (Princeton, Dartmouth) because the children and parents mutually agreed on those schools.
- On appeal the court (Appellate Court) affirmed in part, reversed in part: it held the trial court’s child-support calculation was based on a clearly erroneous income finding (improperly incorporated alimony into Janine’s income) and remanded for recalculation and for setting a retroactivity date not earlier than service of the motion; it upheld the rulings on college tuition and denial of modification of the unallocated formula.
Issues
| Issue | LeSueur (Plaintiff) Argument | LeSueur (Defendant) Argument | Held |
|---|---|---|---|
| Whether the trial court erred in calculating Janine’s income for child-support (inclusion of alimony) | Court used Janine’s financial affidavit that included alimony; inclusion of alimony in her gross income was improper and thus the child-support award is predicated on a clearly erroneous finding | Any error was harmless/de minimis; combined income still places case above $4,000/week ceiling so child support would be minimal impact | Reversed in part: court’s income finding was clearly erroneous because alimony (from the obligor) cannot be included in recipient’s gross income for guideline calculations; remand for recalculation |
| Whether terminating Andrew’s child-support obligation retroactively to Sept. 2, 2015 was improper (lack of financial data; Janine paid some expenses after that date) | Retroactivity improper because court lacked contemporaneous financial affidavits for Sept. 2, 2015 and Janine continued to incur expenses for the son | Court had recent financial data (June 2015) and presumption that child support follows the child; Janine’s post-move payments were voluntary/nonessential | Affirmed in part: trial court did not abuse discretion in granting retroactive modification, but retroactivity date must be set no earlier than date of service (Sept. 10, 2015); remanded to adjust date |
| Whether the court misconstrued separation agreement re: postsecondary tuition (UConn cap) | Agreement should be read to impose the UConn cap unless parties fail to agree; without explicit mutual agreement to exceed, statutory in-state cap applies | Where parents and children mutually agreed on schools (Princeton, Dartmouth), the mutual-agreement clause controls and the UConn cap does not apply | Affirmed: agreement unambiguous—if parents mutually agree on the college, they each pay proportionate shares (no UConn cap) |
| Whether trial court abused its discretion denying modification of unallocated alimony/support formula despite Janine’s reduced salary | Reduction in Janine’s salary constituted substantial change and court should have recalculated/adjusted unallocated support considering §46b-82 factors | Although salary decreased, Janine’s expenses also decreased; agreement allows seeking modification but does not require it; trial court reasonably found formula still met intended purpose | Affirmed: court considered evidence and statutory factors reasonably and did not abuse discretion in denying modification of the percentage formulae |
Key Cases Cited
- Ferraro v. Ferraro, 168 Conn. App. 723 (Conn. App. 2016) (appellate standard in domestic relations review)
- LeSueur v. LeSueur, 172 Conn. App. 767 (Conn. App. 2017) (prior appeal addressing related postjudgment child-support issues)
- Tomlinson v. Tomlinson, 305 Conn. 539 (Conn. 2012) (change in custody: child support follows the child; obligor who becomes custodial parent is not required to continue paying support to former custodian)
- Maturo v. Maturo, 296 Conn. 80 (Conn. 2010) (guidelines treatment where combined net weekly income exceeds $4,000)
- Robinson v. Robinson, 172 Conn. App. 393 (Conn. App. 2017) (definition of gross income under regulations excludes alimony from a party to the support determination)
- Mensah v. Mensah, 145 Conn. App. 644 (Conn. App. 2013) (clearly erroneous standard for reviewing trial court factual findings)
- Remillard v. Remillard, 297 Conn. 345 (Conn. 2010) (principles of contract/separation agreement construction)
- Coury v. Coury, 161 Conn. App. 271 (Conn. App. 2015) (discussion of child-support presumption after custody change)