Battistotti v. Suzanne A.Battistotti v. Suzanne A.
The plaintiff father appealed to this court from the judgment of the trial court awarding the defendant mother sole legal and primary physical custody of the parties’ minor child. The plaintiff, who resided in New York City and rented an apartment in the Greenwich solely for parenting time with his son, had brought this child custody action seeking, inter alia, joint legal custody and visitation on a schedule to be determined. After a trial, the court awarded, inter alia, the plaintiff a minimum of seventeen hours of parenting time biweekly and ordered that such parenting time occur within the town of Greenwich. On appeal, the plaintiff claimed, inter alia, that the trial court erred in failing to consider how its orders impacted his expenses, particularly the rental of the Greenwich apartment, and abused its discretion in requiring that the plaintiff‘s parenting time take place only within the town of Greenwich. Held:
1. The trial court abused its discretion in failing to analyze whether the plaintiff‘s visitation expenses warranted a deviation from the child support guidelines; that court did not address in its decision the plaintiff‘s request that his child support obligation reflect the undisputed expenses related to the Greenwich apartment even though it had expressly found that the plaintiff rented and renovated the apartment to be able to spend time with his child, and the court, having made that finding, should have analyzed whether the application of the guidelines would have been inequitable or inappropriate and should have determined, pursuant to the relevant state regulation [§ 46b-215a-5c], whether the criterion for deviation on the basis of significant visitation expenses was met, especially given that both parties recognized that the Greenwich apartment was maintained for the child and was referenced in their proposed orders, and the plaintiff consistently identified the costs associated with maintaining the Greenwich apartment as expenses related to the child, which were not challenged by the defendant.
2. The plaintiff failed to demonstrate that the trial court abused its discretion by restricting his parenting time with his child to the town of Greenwich; the plaintiff‘s reliance on the court‘s finding that both parents demonstrated a respect for court orders and had the ability to be actively involved in the life of the child was unavailing, as the court also made findings expressing concern about the plaintiff‘s lack of understanding of his child‘s needs and the factors hindering the plaintiff‘s establishment of a healthy relationship with his child, and the plaintiff did not address those findings.
ALVORD, J. In this protracted and bitterly contested family matter, the plaintiff father, Marco Battistotti, appeals from the judgment rendered by the court following a ten day trial on his custody action filed against the defendant mother, Suzanne A. On appeal, the plaintiff claims that the court: (1) improperly found that his earning capacity was $174,000 per year, (2) erred in failing to consider how its orders impacted his expenses, particularly the rental of an apartment in Greenwich used solely for parenting time, and (3) abused its discretion in requiring that the plaintiff‘s parenting time take place only within the town of Greenwich. We agree with the plaintiff‘s second claim and conclude that the trial court abused its discretion. Accordingly, we reverse the judgment with respect to the child support orders and remand the matter for further proceedings on the issue of calculation of child support.1 We affirm the judgment in all other respects.
The following facts and procedural history are necessary for the resolution of the plaintiff‘s appeal. The plaintiff and the defendant, who were never married, became parents to a son in June, 2014. On June 13, 2014, the plaintiff, a resident of New York City, filed a child custody action in the judicial district of Stamford2 seeking joint legal custody of the parties’ child. He requested that the primary residence of the child be with the defendant and sought visitation on a schedule to be determined. He further sought a parenting responsibility plan for the parental decision-making regarding the child. The court, Tindill, J., conducted a trial over the course of ten days. Both parties testified, as did the child‘s guardian ad litem.
The court issued a written memorandum of decision on September 7, 2016. The plaintiff filed a motion for articulation, and the court issued an articulation on October 6, 2016. On November 18, 2016, the court issued a corrected memorandum of decision, in which it made a number of findings with respect to the parties and their respective abilities to meet the needs of the child. The court found that the defendant had rebutted the presumption of joint legal custody and awarded sole legal custody, primary physical custody, and final decision-making authority to the defendant. The court awarded the plaintiff a minimum of seventeen hours of parenting time biweekly, and ordered that such parenting time occur within the town of Greenwich. The court prohibited the plaintiff from removing the child from Greenwich or the state of Connecticut. The court ordered the defendant or her designee to transport the child to and from the apartment the plaintiff had rented in Greenwich solely for effectuating his parenting time. The plaintiff was prohibited from driving the child anywhere without obtaining a valid driver‘s license, and was ordered to provide the defendant twenty-four hours
As a preliminary matter, we note the well settled standard of review applicable in domestic relations cases. “[T]his court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. . . . [T]he 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. . . . 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.” (Citations omitted; internal quotation marks omitted.) Dowling v. Szymczak, 309 Conn. 390, 399, 72 A.3d 1 (2013). With respect to child support, however, “the parameters of the court‘s discretion have been somewhat limited by the factors set forth in the child support guidelines.” (Internal quotation marks omitted.) Colbert v. Carr, 140 Conn. App. 229, 240, 57 A.3d 878, cert. denied, 308 Conn. 926, 64 A.3d 333 (2013).
I
We first address the plaintiff‘s claim that the court erred in failing to consider how its orders impacted his expenses, particularly the expense associated with the rental of an apartment in Greenwich used solely for effectuating parenting time with his son. He claims that although the court found that he lived in New York City, the court required that his parenting time take place in the apartment he rented in Greenwich “for the sole purpose of visiting his son” and prohibited him from taking the child out of Greenwich, which order effectively required him to “maintain two separate residences.” He argues that the order to pay $253 weekly in child support coupled with the requirement of maintaining two residences “imposed an unsustainable financial burden,” and he seeks to have the orders integrated.4 We agree that the court abused its discretion in failing to analyze whether the plaintiff‘s visitation expenses warranted a deviation from the child support guidelines.
The following additional facts are necessary for our resolution of this claim. In its memorandum of decision, the court found that it was in the child‘s best interest to live with his mother and to spend “significant, quality time with his father.” The court noted that the defendant “proposes certain restrictions regarding transportation
“[W]e first set forth the relevant legal principles applicable to our resolution of this claim. The legislature has enacted several statutes to assist courts in fashioning child support orders. . . . The legislature also has provided [in
In support of the application of these guidelines,
“Our courts have interpreted this statutory and regulatory language as requiring three distinct findings in order for a court to properly deviate from the child support guidelines in fashioning a child support order: (1) a finding of the presumptive child support amount pursuant to the guidelines; (2) a specific finding that application of such guidelines would be inequitable and inappropriate; and (3) an explanation as to which deviation criteria the court is relying on to justify the deviation.” Righi v. Righi, supra, 172 Conn. App. 436–37.
There is negligible appellate case law explicating the deviation criterion for significant visitation expenses.5 In the present case, both parties referenced the Greenwich apartment rental in their proposed orders. The plaintiff requested that “[p]ast, current and future child related expenses [in]curred by plaintiff such as traveling from and to Greenwich for parenting time, rent and utilities of the Greenwich apartment used solely for parenting time with the minor child should be . . . paid in accordance to the child support guidelines currently in effect, 80 [percent] defendant, 20 [percent] plaintiff, unless modified. Plaintiff do[es] not reside at the Greenwich apartment except during parenting time with the minor child.” In the defendant‘s amended proposed orders, she specifically requested that the plaintiff‘s parenting time be “at his Greenwich apartment and only within the Town of Greenwich, CT.” In its memorandum of decision, the court expressly found that “[t]he plaintiff rented and renovated an apartment in proximity to the defendant‘s and child‘s residence to be able to spend time with [the child].” The court also prohibited the plaintiff from removing the child from Greenwich, which proscribed the plaintiff from spending his parenting time at his residence in New York City.
Both parties also recognized that the Greenwich apartment was maintained for the child. During the March 4, 2015 status conference, the court asked the plaintiff what time he would be “home” in Greenwich, to which the plaintiff responded that he lived in New York City. Although the defendant‘s counsel interjected
Moreover, the plaintiff consistently identified the costs associated with maintaining the Greenwich apartment as expenses related to the child, and such expenses were not challenged by the defendant. In his financial affidavit dated May 4, 2016, the plaintiff reported the following monthly expenditures: Greenwich apartment rent ($1475), Greenwich electricity ($60), Greenwich cable/internet/phone ($117), and Greenwich apartment up-keeping ($10).6 He further reported monthly travel expenses to and from Greenwich in the amount of $702. He also listed these expenses in an attachment to his amended proposed orders dated May 10, 2016. During trial, the plaintiff introduced into evidence a list of expenses related to the Greenwich apartment from October, 2014 through May, 2015, in the amount of $45,399.13. Rather than dispute these expenses, the defendant‘s counsel referenced the list in closing argument, remarking that the plaintiff “spent $45,399 in less than six months on Baby [L]‘s apartment in Greenwich.”
In its memorandum of decision, the court did not address the plaintiff‘s request that his child support obligation reflect the undisputed expenses related to the Greenwich apartment. The trial court did, however, expressly find that the plaintiff had rented and renovated the apartment to be able to spend time with his child. In order to make that finding, the trial court necessarily had before it evidence that it deemed credible that the plaintiff had both rented and renovated that apartment.7 Having made that finding, the court should have then analyzed whether application of the guidelines would be inequitable or inappropriate and should have determined, pursuant to
Accordingly, we conclude that the court, having found that the plaintiff “rented and renovated an apartment in proximity to the defendant‘s and child‘s residence to be able to spend time with” the child, abused its discretion in failing to analyze whether his visitation expenses warranted a deviation from the child support guidelines. The proper remedy is to remand the matter for the court to hold a new hearing on the issue of calculation of child support.8
II
The plaintiff also claims that the court abused its discretion in restricting the plaintiff‘s parenting time with his child to the town of Greenwich. He argues that the court made no findings supporting this onerous order, and that the restriction is inconsistent with the court‘s finding that it is in the best interest of the child to “spend significant, quality time with his father.” We disagree that the court abused its discretion.
“The authority of a court to render custody, visitation and relocation orders is set forth in
The following additional facts are relevant to this claim. In its corrected memorandum of decision, the court began by noting that it had reviewed and considered the criteria contained in relevant statutes, including
The court further found that the plaintiff had made efforts to establish a healthy relationship with his child, but that his efforts were hindered in part by the plaintiff‘s arrest for disorderly conduct, which prohibited contact with the child for nearly four months. Although the court found that both parents demonstrate a respect for court orders, the court also found that the plaintiff “engages in manipulation and coercive behavior in an effort to involve the child in the parents’ dispute.” The court ordered a minimum of seventeen hours biweekly parenting time for the plaintiff, and further ordered that such parenting time shall occur in Greenwich.
The plaintiff argues that the court‘s restriction of his parenting time to the town of Greenwich was capricious and points to the court‘s findings that both parents “demonstrate a respect for court orders” and “have the ability to be actively involved in the life of the child.”9 The plaintiff does not challenge and, instead, ignores the court‘s findings expressing concern about the plaintiff‘s lack of understanding of his child‘s needs and the factors hindering the plaintiff‘s establishment of a healthy relationship with his child, who was just twenty-three months old at the time of trial. We conclude that the plaintiff has failed to demonstrate that the court abused its discretion in limiting the plaintiff‘s parenting time to the town of Greenwich.10
The judgment is reversed only as to the child support related orders and the case is remanded for further proceedings on those issues; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
“Under the guidelines, the child support obligation first is determined without reference to earning capacity, and earning capacity becomes relevant only if a deviation from the guidelines is sought” under
This court previously has found significant that there is no express or implied reference to earning capacity in
Given this regulatory framework, a court errs in calculating child support on the basis of a parent‘s earning capacity without first stating the presumptive support amount at which it arrived by applying the guidelines and using the parent‘s actual income and second finding application of the guidelines to be inequitable or inappropriate. See Deshpande v. Deshpande, 142 Conn. App. 471, 478–79, 65 A.3d 12 (2013) (“[b]ecause the court failed to specify the presumptive amount or make any findings regarding a deviation from that amount, we can only speculate as to the amount, whether the court‘s child support order deviated from that amount and, to the extent that there was a deviation, whether the circumstances of this case justified a variance from the presumptive amount based on the court‘s application of the deviation criteria“); see also Righi v. Righi, supra, 172 Conn. App. 439 (“enactment‘s ‘specific finding’ requirement must be stated explicitly by the court and cannot be inferred merely from the court‘s determination that deviation from the guidelines is fair and equitable“); Barcelo v. Barcelo, 158 Conn. App. 201, 215, 118 A.3d 657 (court‘s award was improper in part because it failed to cite the presumptive support amount calculated with the defendant‘s actual net income, and then did not invoke the defendant‘s earning capacity as a deviation criterion in calculating his child support obligation), cert. denied, 319 Conn. 910, 123 A.3d 882 (2015).
This court previously has stated that “the reason why a trial court must make an on-the-record finding of the presumptive support amount before applying the deviation criteria is to facilitate appellate review in those cases in which the trial court finds that a deviation is justified. . . . In other words, the finding will enable an appellate court to compare the ultimate order with the guideline amount and make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Kiniry v. Kiniry, 299 Conn. 308, 320, 9 A.3d 708 (2010).