CHELSEA CHAPMAN KIRWAN v. LAURENCE KIRWAN
AC 40008
AC 40047
Appellate Court of Connecticut
October 23, 2018
Sheldon, Prescott and Bear, Js.
Argued May 30—officially released October 23, 2018
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Syllabus
The defendant appealed to this court from the judgments of the trial court dissolving his marriage to the plaintiff and ordering him to make a lump sum payment to her of $91,000 to satisfy a child support arrearage. The court had approved an agreement by the parties to enter into binding mediation/arbitration as to, inter alia, alimony and the division of marital property. The issue of child support was reserved to the court in accordance with the parties’ agreement and as required by statute (
- The defendant could not prevail on his claim that the trial court, in making its child support award, was bound by the arbitrator‘s finding that his gross annual income was $400,000 and, thus, that the court‘s finding of $560,637 was clearly erroneous; the arbitrator‘s finding of gross income, which was made in the context of determining alimony, was not entitled to preclusive effect in the court‘s adjudication of child support, as the provision in
§ 52-408 that excludes from arbitration issues related to child support is broad, and its plain and unambiguous language conveyed the legislature‘s intent to render inarbitrable all issues, legal and factual, that pertain to child support, and the defendant offered no analysis of§ 52-408 in asserting that the arbitrator‘s finding should have been binding on the court in determining his child support obligation; moreover, even if the exclusionary provision of§ 52-408 were not clear and unambiguous, this court‘s interpretation was consistent with extrinsic evidence of the legislature‘s intent, and it would be inconsistent with concerns for the best interests of children to permit issues related to child support to be resolved conclusively in arbitration, which is a nonjudicial forum outside the control of our courts, as that would constitute an impermissible delegation of judicial authority. - The trial court‘s finding that the defendant earned $400,000 in gross income from employment was not clearly erroneous; that court reasonably could have determined that the defendant‘s gross income from employment was at least $400,000, as the plaintiff, who had worked as the business administrator for the defendant‘s medical practice, testified that the defendant had income from the medical practice, from consulting for medical companies and from teaching, and the defendant disclosed on a credit application in connection with an automobile lease that his gross annual income from employment was $400,000.
- The defendant‘s claim that the trial court improperly determined the amount of gross rental income that he received from property that was awarded to him was unavailing, as a sufficient evidentiary basis existed for the court‘s finding; although the court utilized a rental income chart that had not been admitted into evidence, the chart contained numbers that reflected those in the defendant‘s 2015 tax return, which had been admitted into evidence, the figures on the chart were easily verified by comparing them with those on the tax return, and the court properly omitted from its calculation two of the defendant‘s properties that had generated substantial losses, as those properties were sold prior to the child support hearing and the defendant failed to explain why it would be improper for the court to consider only properties that would generate income in the future in calculating income on which to base his prospective child support obligations.
- The defendant could not prevail on his claim that the trial court abused its discretion in calculating his gross income when it failed to take into account his payment of life insurance premiums, that court had no evidentiary basis from which to calculate a credit against the defendant‘s income for a life insurance policy to benefit the children, as he never provided the court with a breakdown of the premium payments for life insurance that he disclosed on his financial affidavit, and although he indicated on his financial affidavit a monthly personal expense for life insurance, he listed no details of the policies’ beneficiaries or the premium payments per policy.
- The trial court did not abuse its discretion in rendering its child support order, as the order was consistent with the criteria established by statute (
§ 46b-84 [d] ) and within the range between the minimum and maximum support amounts established by the child support guidelines, and because no deviation from the guidelines occurred, the court was not required to provide any additional explanation for its decision. - The defendant‘s claim that the trial court failed to credit the voluntary child support payments that he made during the child support proceedings was dismissed as moot; there was no practical relief that could be afforded to the defendant with respect to his claim that the court was obligated to subtract the amount of the voluntary payments from the amount of his arrearage, rather than providing him with credit for the voluntary payments by temporarily reducing his child support obligations, as the defendant had reduced his weekly child support obligation in accordance with the court‘s order and, thus, received full credit for his voluntary child support payments; moreover, even if the trial court abused its discretion in the manner in which it credited the voluntary payments, any decision by this court would be academic, as it would not alter the status quo, which was that the defendant received full credit for his voluntary payments.
- The defendant could not prevail on his claim that the trial court improperly ordered him to pay a lump sum to satisfy the child support arrearage, rather than permitting him to satisfy that arrearage on a weekly basis, as contemplated by the child support arrearage guidelines; the defendant failed to demonstrate that the arrearage guidelines were applicable to the lump sum order or that the court abused its discretion in ordering a lump sum payment, as the arrearage guidelines and the applicable state regulation (
§ 46b-215a-3a [a] ) reflect that the determination of lump sum payments is subject to the discretion of the court, and the court articulated that it ordered the lump sum payment because the defendant had the ability to pay, given his income and other finances, including the court‘s release to him of $100,000, which had been held in escrow, to aid him in meeting his child support obligations. - The defendant‘s claim that the trial court should have dismissed, rather than denied, the plaintiff‘s motion for contempt was not reviewable, the defendant having failed to raise that claim before the trial court; although the defendant had asked the trial court to deny the motion because he had not violated any clear and unambiguous order pertaining to the child support arrearage, he never asked the court to strike or dismiss the motion on the basis of legal or factual insufficiencies, or on the ground that it did not comply with our rules of practice.
Argued May 30—officially released October 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, where the court, Tindill, J., approved the agreement of the parties to enter into binding mediation/arbitration as to certain disputed matters; thereafter, the arbitrator issued an award and entered certain orders; subsequently, the arbitrator issued a clarification of the award; thereafter, the court granted the defendant‘s motion to confirm the arbitra-tor‘s award, and rendered judgment incorporating the arbitrator‘s award and clarification, and dissolving the marriage and granting certain other relief; subsequently, the court issued certain orders; thereafter, the court denied the defendant‘s motion to reargue and denied in part the defendant‘s motion for clarification, and the defendant appealed to this court; subsequently, the court, Tindill, J., denied the plaintiff‘s motion for contempt, and entered certain orders as to child support and attorney‘s fees, and the defendant filed a second appeal; thereafter, the court, Tindill, J., issued an articulation of its decision; subsequently, this court consolidated the appeals. Affirmed.
Alan Scott Pickel, for the appellant (defendant).
Joseph T. O‘Connor, for the appellee (plaintiff).
Opinion
The present appeals arose following the court‘s October 23, 2015 judgment dissolving the marriage of the plaintiff, Chelsea Chapman Kirwan, and the defendant, Laurence Kirwan. The judgment incorporated by reference a pendente lite arbitration award that had resolved most of the issues raised in the dissolution action, including alimony, the distribution of marital assets, and the enforceability of a premarital agreement. Both the parties’ arbitration agreement and the arbitrator‘s award, however, expressly reserved for the Superior Court resolution of issues related to custody and child support.1 Following an evidentiary hearing, the court, on December 7, 2016, issued child support orders, which, by agreement of the parties, were made retroactive to the date of the dissolution judgment. The defendant appeals from those child support orders (AC 40008). The defendant also appeals from a subsequent remedial order that the court issued in response to a motion for contempt and that required the defendant to make a $91,000 lump sum payment to the plaintiff to satisfy a child support arrearage resulting from the court‘s December 7, 2016 order making his child support obligation retroactive to October 23, 2015 (AC 40047).2
The defendant claims on appeal that the court improperly (1) failed to adhere to the arbitrator‘s factual findings regarding his gross income, as set forth in the arbitrator‘s award, despite the fact that the court incorporated the arbitrator‘s award by reference into the dissolution judgment; (2) found that his gross income from employment was $400,000; (3) calculated his gross rental income from property awarded to him as part of the division of marital assets; (4) failed to take into consideration
The following facts and procedural history are relevant to our resolution of these appeals.4 The parties were married in 2001. The defendant is a plastic surgeon with offices in New York, Norwalk, and London, as well as a consultant and a professor of plastic surgery. The plaintiff is college educated and worked in pharmaceutical sales until shortly after she married the defendant, at which time she worked for the defendant in his medical practice. The parties have three minor children together, one of whom has special needs.5 Prior to their marriage, the parties entered into a premarital agreement that, in relevant part, limited the plaintiff‘s alimony in the event of divorce to $50,000 a year for five years and allocated 45 percent of the value of the marital home to the plaintiff as her share of marital property. In September, 2012, the plaintiff initiated an action to dissolve the parties’ marriage.
On May 26, 2015, the court, Tindill, J., approved an agreement by the parties to enter into binding mediation/arbitration of the dissolution action.6 Pursuant to the parties’ arbitration agreement, which was made an order of the court, “[t]he parties agree[d] that the following issues in their action for dissolution of marriage shall be the subject of mediation and, if the parties are unable to resolve these issues via mediation, to binding arbitration . . . .” The list of issues to be resolved in arbitration included the validity and enforceability of the premarital agreement; the validity of an alleged rescission of that premarital agreement; a determination of alimony in accordance with
On August 4, 2015, the arbitrator, former Superior Court Judge Elaine Gordon, issued her arbitration award. As a preliminary matter, the arbitrator determined that the parties’ premarital agreement was unconscionable, and thus unenforceable, due to “the present, uncontemplated circumstances” of the parties.7 The arbitrator issued a number of orders regarding alimony and the distribution of marital assets, including an order directing the sale of the marital home. In support of her orders, the arbitrator made several factual findings, including that “[t]he defendant‘s annual [gross] income is found to be approximately $400,000 per year based on his income tax returns, business financial statements and the information he has provided to lending institutions on his applications.” As previously noted, the arbitration award indicated that “[t]he issues of custody, access, child support, maintenance and cost of medical insurance for minor children and unreimbursed medical expenses are reserved to the Connecticut Superior Court.”8
On September 1, 2015, the defendant filed a motion asking the court to confirm the arbitration award and to render judgment dissolving the parties’ marriage in accordance with the arbitration award. On that same date, the plaintiff filed a motion asking the court to issue orders on the unresolved matters of child support and postsecondary educational expenses. Neither party filed an objection to the other party‘s motion, and the matters were set down for a hearing on October 23, 2015. At that time, the court rendered a judgment of dissolution of marriage that incorporated by reference the arbitration award and subsequent clarification.9 The parties agreed that the court would determine the defendant‘s child support obligations, including the issue of unreimbursed medical expenses and child care, after an evidentiary hearing, and that child support obligations would be made retroactive to the date of dissolution.
The court conducted an evidentiary hearing on the issue of child support and on certain other postjudgment motions of the parties beginning on December 23, 2015, and continuing to January 22, May 25, June 20 and June 29, 2016. Both parties were present at all hearings and represented by counsel. Both parties testified and submitted a number of exhibits into evidence.
On December 7, 2016, the court issued a memorandum of decision regarding child support. The court indicated that it carefully had reviewed the parties’ various claims for relief, memoranda in support thereof, trial briefs, replies, evidence, testimony, relevant rules, statutory authority, case law, and the arguments of counsel. The court made a number of credibility determinations and factual findings, including that neither party “was credible
The court ordered that the defendant “shall pay $1500.00 per week in child support for the parties’ three children, retroactive to October 23, 2015 . . . .” (Emphasis added.) The court also ordered that the plaintiff is responsible for 25 percent of any unreimbursed medical expenses and child care, and the defendant is responsible for the remaining 75 percent. Moreover, “[t]he [d]efendant shall be given credit for the $18,432.41 in voluntary, postjudgment child support payments made from the date of the dissolution through June 30, 2016.” The court instructed the defendant that if he claimed any additional support payments after June 30, 2016, he should provide the plaintiff‘s counsel with proof of those payments within one week of the court‘s order. The court stated that credit for the voluntary support payments “shall be in the form of a deduction from current support in equal payments over the course of one year.” (Emphasis added.) In other words, given that there are fifty-two weeks in a year, the defendant would be entitled to reduce his $1500 child support obligation each week for the first year by an amount equal to one fifty-second of his total voluntary postjudgment child support payments. Finally, the court ordered that the defendant “shall continue to provide and maintain health, dental, and vision insurance for the minor children,” and “shall maintain insurance on his life in the amount of $2,000,000, naming the three minor children as equal beneficiaries, for as long as he has a child support obligation to the twins.”
On December 23, 2016, the defendant filed a motion to reargue the court‘s December 7, 2016 decision in which he claimed that the court had miscalculated his income for purposes of the support orders. Specifically, he argued that the arbitrator had found his gross annual income to be $400,000, the court had adopted that finding in its judgment of dissolution when it incorporated the arbitration award therein and, therefore, “the court should not have added on top of that figure rental income that was already included in the total annual income finding of $400,000.”11
On December 12, 2016, the plaintiff filed a motion for contempt claiming that a child support arrearage of $91,000 existed because the court had made the defendant‘s child support obligation retroactive to the date of dissolution. The plaintiff argued that the defendant should have paid the arrearage from money that the court had ordered released from an escrow account to the defendant.12 In response, the defendant filed an objection to the plaintiff‘s motion for contempt, arguing that there was never a clear and unambiguous court order requiring him to immediately pay any child support arrearage arising from the December 7, 2016 orders. Accordingly, he argued that the motion for contempt should be denied and that he was entitled to attorney‘s fees for having to defend against a frivolous motion.
The court held a hearing on the motion for contempt on January 3, 2017. The following day, the court issued an order denying the motion for contempt, explaining that the plaintiff had failed to meet her
We begin by stating the overarching and well settled standard that governs our review of claims in divorce actions. “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 [evidence] presented. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence 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. . . . [T]o conclude that the court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court‘s findings of fact is governed by the clearly erroneous standard of review. . . . 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.” (Emphasis added; internal quotation marks omitted.) Milazzo-Panico v. Panico, 103 Conn. App. 464, 467-68, 929 A.2d 351 (2007). “As has often been explained, the 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 . . . .” (Internal quotation marks omitted.) Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d 449 (2013).
I
The defendant first claims that, in determining his annual income for the purpose of child support, the court was bound by the factual findings of the arbitrator as set forth in the arbitration award and incorporated by reference into the court‘s judgment of dissolution. He argues that the court‘s finding that he had a total gross annual income of $560,637 was inconsistent with the prior finding of the arbitrator that his gross annual income was
Stated succinctly, the issue before us is whether the arbitrator‘s factual finding regarding gross income, which was made in the context of determining alimony and other issues submitted to arbitration, is entitled to preclusive effect in the court‘s subsequent adjudication of child support, an issue that was expressly excluded from arbitration by
The defendant‘s arguments require us to engage in statutory interpretation of
We begin by examining the text of
The statute‘s use of the term “issues related to child support” is both broad and unqualified. For example, the statute does not distinguish between legal and factual issues. The absence of such qualifying language conveys the legislature‘s intent to render inarbitrable not only a final determination of a party‘s child support obligations
Our child support guidelines are based on an income share model; see Child Support and Arrearage Guidelines (2015), preamble, § (d); meaning an accurate and complete determination of the parties’ respective incomes is essential to ensure that adequate resources are directed toward affected children. Because a finding of the parties’ income is a mandatory prerequisite to the determination of a child support order, it is indisputably an “issue related to child support,” and such a finding cannot be conclusively determined by an arbitrator for purposes of calculating child support under the clear and unambiguous language of
Even if we were not convinced that the exclusionary provision of
Custody and support issues not only impact the divorcing parents but also significantly impact the future health and welfare of children for whom child support is intended to benefit. In Guille v. Guille, 196 Conn. 260, 262-64, 492 A.2d 175 (1985), our Supreme Court discussed the independent nature of a child‘s right to support and held that this right cannot be vitiated or circumscribed by way of an agreement between the parents. In Guille, the court first recognized that
“The independent nature of a child‘s right to parental support [had been] recognized by [our Supreme Court] long before that right was codified in our statutes.” Id. As an example, the court in Guille cited to its decision in Burke v. Burke, 137 Conn. 74, 80, 75 A.2d 42 (1950), in which it stated: “A husband and wife cannot make a contract with each other regarding the maintenance or custody of their child which the court is compelled to enforce, nor can the husband relieve himself of his primary liability to maintain his child by entering into a contract with someone else to do so. The welfare of the child is the primary consideration. The court may recognize the contract, but such contract will not be enforced longer than it appears to be for the best interests of the child, and parents entering into such a contract are presumed to do so in contemplation of their obligations under the law and the rights of the child.” (Internal quotation marks omitted.) Guille v. Guille, supra, 196 Conn. 264.
In the arbitration agreement in the present case, the list of issues to be resolved included the validity and enforceability of the premarital agreement; the validity of an alleged rescission of that premarital agreement; a determination of alimony; an equitable division of marital property; and attorney‘s fees and guardian ad litem fees. The resolution of those issues could not “affect the minor children‘s right . . . for parental maintenance“; id., 267; and extending the impact of the parent‘s resolution of nonsupport issues would violate the statutory prohibition against arbitrating child support. Furthermore, it would be inconsistent with our concerns for the best interest of children, an ideal that permeates our statutes and decisional law, to permit issues related to child support to be resolved conclusively in arbitration, a nonjudicial forum outside the control of our courts. See, e.g., Masters v. Masters, 201 Conn. 50, 64-65, 513 A.2d 104 (1986) (“the ultimate responsibility for determining and protecting the best interests of children in family disputes rests
There is no doubt that “[t]he courts of this state encourage arbitration as a means of alternative dispute resolution . . . .” Scinto v. Sosin, 51 Conn. App. 222, 227, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999). They have “for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. (Internal quotation marks omitted.) Stutz v. Shepard, 279 Conn. 115, 124, 901 A.2d 33 (2006). “The parties themselves, by the agreement of the submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided.” (Internal quotation marks omitted.) Noeck Construction Co. v. Wilcox Excavating Construction Co., 52 Conn. App. 367, 370, 726 A.2d 653 (1999). “[If] the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. . . . [Generally], courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80, 881 A.2d 139 (2005).
Nevertheless, although binding arbitration may be utilized to resolve many types of issues arising in the course of civil litigation, including in a marital dissolution action, the legislature concluded, as a matter of public policy, that issues involving custody, visitation, and child support must be resolved only by a court. This court previously has indicated that if a court has a statutorily mandated duty to decide an issue, it would be an improper delegation of judicial authority to permit that issue to be resolved through binding arbitration, particularly because of the limited opportunity for judicial review of arbitration awards. See Nashid v. Andrawis, 83 Conn. App. 115, 121-22, 847 A.2d 1098 (plain error to permit future disputes regarding custody and visitation to be decided in arbitration), cert. denied, 270 Conn. 912, 853 A.2d 528 (2004).
We simply are not persuaded that in an adjudication of child support following binding arbitration, a court must give preclusive effect to extrajudicial factual findings, particularly if the correctness of those findings is so integral to a resolution of an issue expressly excluded from arbitration in accordance with both
We conclude that, although the court incorporated the arbitration award by reference into the dissolution judgment, it does not follow that the court was bound by every factual finding contained in the award in determining the defendant‘s child support obligation. In exercising its important and independent statutory obligation to determine child support—an issue important not only to the parties but to the children meant to benefit from such orders—the court was not legally bound by the arbitrator‘s factual findings regarding gross income. To hold otherwise could undermine the court‘s function to ensure that children receive an adequate level of support, and that concern outweighs any policy cautioning against judicial interference with arbitration. Accordingly, we reject the defendant‘s claim that the court was bound by the factual finding of the arbitrator regarding the defendant‘s gross income.
II
The defendant next claims that even if the court was not legally bound by the arbitrator‘s finding with respect to his gross income, the court‘s finding that the defendant earned $400,000 in gross income from employment was clearly erroneous. The plaintiff counters that the court‘s finding was correct and fully supported by the record. Because there is evidence in the record that supports the court‘s finding, we conclude that the finding was not clearly erroneous.
“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
The defendant argues that the record contains no evidence that would support the court‘s finding that he earned $400,000 in gross income from his employment, and, therefore, the finding is clearly erroneous. He indicates that his financial affidavit submitted into evidence listed his gross income earned from employment as $360,000. He further notes that his 2015 income tax return, which was submitted into evidence, states that he earned $170,541 in gross income from employment. As our standard of review makes clear, however, the existence of evidence that is contrary to the court‘s finding is not dispositive of whether the court‘s finding is clearly erroneous.
The trial court, in its role as the trier of fact, was not bound by the financial numbers contained in either party‘s financial affidavits and was free to assess the credibility of the parties with respect to the reliability of evidence proffered to establish income. See Olson v. Olson, 71 Conn. App. 826, 834, 804 A.2d 851 (2002). The court was free to make findings that differed from the parties’ positions, provided that evidence existed to support such findings. Here, the court expressly indicated in its memorandum of decision that it found the evidence presented by the defendant regarding his income not credible and untruthful. See Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991) (contours of determination of credibility uniquely shaped by trial court and not reviewable on appeal), cert. denied, 224 Conn. 906, 615 A.2d 1047 (1992). Moreover, contrary to the defendant‘s assertion on appeal, our review of the record reveals evidence from which the court reasonably could have determined that the defendant‘s gross income from employment was at least $400,000.19
First, the plaintiff testified during the hearing that she was aware of the defendant‘s earnings during the course of their marriage. She testified that he had three sources of income from employment: his medical practice, consulting for medical companies, and teaching. In part, her knowledge of his earnings came from her having worked as the business administrator for the defendant‘s medical practice, in which capacity she had access to payroll documents. She testified that the defendant‘s salary was $16,000 every two weeks, which amounts to a yearly income from employment of $416,000.
Given that the true measure of the defendant‘s income was highly contested, and that the trial court found that the defendant‘s presentation of his finances, including income, was misleading, the court relied on other evidence in the record. There was certainly evidence, including the defendant‘s admission on the automobile application, that his income from employment was $400,000. Because the finding is supported by evidence and we are not left with any firm conviction that a mistake was made, we conclude that the trial court‘s finding was not clearly erroneous.
III
The defendant‘s third claim is that, in calculating his gross income, the court improperly determined the amount of gross rental income he received from property awarded to him as part of the division of marital assets. We are not persuaded.
“The [child support] guidelines worksheet is based on net income; weekly gross income is listed on the first line on the worksheet, and the subsequent lines list various deductions, including federal income tax withheld and social security tax. . . . The guidelines are used by the court to determine a presumptive child support payment, which is to be deviated from only under extraordinary circumstances. . . . Our regulations define ‘gross income’ as ‘the average weekly earned and unearned income from all sources before deductions, including but not limited to the items listed in subparagraph (A) of this subdivision, but excluding the items listed in subparagraph (B) of this subdivision.‘” (Citation omitted; emphasis added.) Giordano v. Giordano, 153 Conn. App. 343, 356-57, 101 A.3d 327 (2014), citing
Although the defendant acknowledges that the child support guidelines permit the inclusion of rental income in the calculation of gross income, he argues that the court failed to “delineate how the court arrived at the figure of $160,637.” He also argues that “[n]owhere in the record can there be found any indication of how the court arrived at the figure of $160,637 or whether the court deducted reasonable and necessary expenses from any such rental income.” (Emphasis omitted.) Further, the defendant notes that the court‘s rental income figure matches the total found in a chart that the plaintiff prepared and attached to her posttrial brief, which, as the defendant correctly maintains, was never submitted into evidence during the hearing.
The court did not provide a detailed explanation of how it arrived at its calculation of rental income. After it set forth its findings regarding the defendant‘s total gross income, however, it did indicate the evidentiary basis for its finding, citing to the plaintiff‘s exhibits 7 and 13, and the defendant‘s testimony of May 25 and June 29, 2016. Exhibit 13 is a copy of the defendant‘s 2015 individual tax return. Schedule E of that return contains details of the
Finally, the defendant argues that both the plaintiff‘s chart and the court‘s conclusion regarding rental income do not comport with the evidence presented because they disregard and omit from their calculation two properties that generated substantial losses. According to the defendant, if those properties were considered, his net rental income would have been substantially lower.
The plaintiff argues, however, that those properties were sold prior to the child support hearing, and thus any effect that the losses from those properties had on total rental income in 2015 were properly disregarded in calculating future income for the purposes of determining child support. The defendant does not dis-pute that assertion in his reply brief and fails to explain why it would be improper for the court to consider only properties that would generate income in the future in calculating income on which to base his prospective child support obligations. On the basis of our review, we conclude that the court‘s calculation and inclusion of rental income in its determination of the defendant‘s total gross income was not clearly erroneous.
IV
In the defendant‘s fourth claim, he asserts that the court improperly failed to take into account his payment of life insurance premiums in calculating his gross income. The plaintiff responds that the defendant failed to provide the court with information regarding life insurance premiums and that the court properly accounted for all insurance premium payments brought to the attention of the court and reflected in the record. We agree with the plaintiff.
The following additional facts are relevant to this claim. The defendant testified that he maintained two life insurance policies that provided a total of $4,000,000 in coverage.20 According to the defendant, the premiums for those policies were paid by his medical practice, and those payments were attributable to him as additional income. The life insurance policies are listed on the defendant‘s financial affidavit, which also includes as a personal expense his monthly life insurance premiums of $1053. The premium payment amounts are not broken out per policy. The child support guidelines worksheet submitted by the defendant to the court did not include any deduction for life insurance premiums, presumably because the defendant objected to the plaintiff‘s claim for relief requesting that the court order him to maintain $2,000,000 in life insurance for the benefit of the children. He argued that he would not be able to maintain his existing policies
The court made the following order with respect to life insurance: “The defendant shall maintain insurance on his life in the amount of $2,000,000, naming the three minor children as equal beneficiaries, for as long as he has a child support obligation to the twins.” The court‘s calculation of net income for the purposes of child support, which is set forth on the court‘s child support guidelines worksheet attached as the court‘s exhibit 1 to the court‘s memorandum of decision, deducts $406 from the defendant‘s gross weekly income for premiums paid for the children‘s medical and dental insurance. Although the worksheet also contains a line for deducting the premium paid for “court-ordered life insurance for benefit of child,” the court indicated $0 on that line.
The defendant stood to benefit from any reduction in his gross income attributable to life insurance premium payments. As such, he bore the burden to produce whatever evidence was necessary for the court to calculate this deduction. Our review of the record, however, including the exhibits and testimony offered during the hearing, show that the defendant never provided the court with a breakdown of his existing premium payments for the $4,000,000 in life insurance coverage he disclosed on his financial affidavits, including how the amount of premiums paid for those policies was applicable to the court‘s calculation of life insurance necessary to secure the defendant‘s child support obligation, an amount of insurance that was significantly less. Although he indicated on his financial affidavit a monthly personal expense for life insurance of $1053, he lists several insurance policies with no details of the policies’ beneficiaries or premium payments per policy. Because the court had no evidentiary basis from which to calculate a credit against his income for a $2,000,000 life insurance policy benefiting the children, we cannot conclude that the court‘s failure to include a credit in calculating net income was a clear abuse of discretion.
V
The defendant next claims that the court improperly failed to explain the basis for exercising its discretion to order child support in an amount that exceeded the child support guidelines’ presumptive minimum. The question presented by this claim is whether the court is required to articulate why it chose the specific amount of child support that it did if that amount falls within the range of the minimum and maximum presumptive support amounts. We conclude that there is no such requirement and, accordingly, reject the defendant‘s claim.
“The question of whether, and to what extent, the child support guidelines apply . . . is a question of law over which this court should exercise plenary review.” Misthopoulos v. Misthopoulos, 297 Conn. 358, 367, 999 A.2d 721 (2010). Further, whether the court is legally obligated to articulate the basis for a child support award also poses a legal question that invokes our de novo review. “It has long been established that the guidelines, as promulgated by a commission empowered pursuant to legislation enacted in 1989; see Public Acts 1989, No. 89-203; were intended to substantially [circumscribe] the traditionally broad judicial discretion of the court in matters of child support.” (Internal quotation marks omitted.) Ray v. Ray, 177 Conn. App. 544, 563, 173 A.3d 464 (2017).
“[T]he . . . guidelines shall be considered in all determinations of child support
“[I]n awarding child support, a court must consider and apply statutory child support and arrearage guidelines unless application of the guidelines is inequitable or inappropriate under the circumstances.” Lusa v. Grunberg, 101 Conn. App. 739, 741, 923 A.2d 795 (2007). “To enter child support orders that deviate from the presumptive support amount, the court must make specific findings on the record to explain its reasons for doing so.” Id. “[A]ny deviation from the schedule or the principles on which the guidelines are based must be accompanied by the court‘s explanation as to why the guidelines are inequitable or inappropriate and why the deviation is necessary to meet the needs of the child.” Maturo v. Maturo, supra, 296 Conn. 95-96.
“In Maturo, [our Supreme Court] . . . concluded that when a family‘s combined net weekly income exceeds $4000, the court should treat the percentage set forth in the schedule at the highest income level as the presumptive ceiling on the child support obligation, subject to rebuttal by application of the deviation criteria enumerated in the guidelines, as well as the statutory factors described in
The child support guidelines provide that when the combined weekly net income of the parents is $4000, the presumptive minimum of child support for three children is $824 a week. As indicated previously, the maximum is calculated by multiplying the combined weekly income by the applicable percentage, which in this case is 20.61 percent.
In his appellate brief, the defendant relies on language in
Although the statutory language requires that child support awards shall be consistent with statutory criteria, it does not “mandate that a court articulate why” it is ordering an amount consistent with the criteria. “In accordance with the statutory directives set forth in
In making its orders and findings of fact, the court conducted an extensive evidentiary hearing and reviewed the parties’ various claims for relief, memoranda in support thereof, trial briefs, replies, evidence, testimony, relevant rules, statutory authority, case law, and the arguments of counsel. Notably, these findings pertained to the health and educational needs of the children, as well as the parties’ ages, health, educational status, employability, earning capacities, and sources of income. The court calculated that, in this case, the maximum amount of child support per week was $1564. The actual amount of child support ordered by the court was $1500 per week. Because the child support order was consistent with statutory criteria and within the range between minimum and maximum support amounts established by the guidelines, we find no abuse of discretion in the court‘s ruling. Further, because no deviation from the guidelines occurred, the court was not required to provide any additional explanation for its decision. In sum, the trial court did not abuse its discretion in rendering its December 7, 2016 child support orders.
VI
We turn next to those claims challenging the court‘s order requiring the defendant to make a lump sum payment of $91,000 to the plaintiff to satisfy a child support arrearage that resulted from the court‘s December 7, 2016 order making his child support obligation retroactive to the date of dissolution. The defendant first claims that in calculating the $91,000 child support arrearage, the court failed to credit properly the voluntary child support payments that he made to the plaintiff during the pendency of the child support proceedings. Specifically, the defendant maintains that the court was obligated to subtract the amount of the voluntary payments directly from the amount of the arrearage, rather than providing him with credit for the voluntary payments by temporarily reducing his child support obligations for a period moving forward. The plaintiff responds that the defendant‘s
“Mootness implicates [the] court‘s subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary.” (Internal quotation marks omitted.) Schall v. Schall, 163 Conn. App. 83, 98-99, 134 A.3d 686, cert. denied, 320 Conn. 930, 133 A.3d 461 (2016).
The defendant does not challenge the total amount of the arrearage ordered by the court, having stipulated that the amount owed was $91,000. He also raises no claim that he was entitled to a greater amount of credit on the basis of the voluntary payments made during the pendency of the child support proceedings. It is simply the form of the credit that the defendant takes issue with, maintaining that the court should have applied his voluntary child support payments directly against the arrearage and arguing that most courts that have addressed similar situations have applied voluntary payments to reduce directly any arrearage.21 Nevertheless, because the defendant has now received full credit for his voluntary payments, there is no practical relief that could flow from our determination of whether he should have received that credit as an offset to the lump sum payment rather than as a reduction in his future child support payments. Even if we were to determine that the court abused its discretion in the manner in which it credited the voluntary payments, we cannot formulate a remedy that would effectively rewind the clock in this case. Any decision would be purely academic at this point because it would not alter the existing status quo, namely, that the defendant has received full credit for those voluntary payments he made. This claim, accordingly, is dismissed as moot.
VII
The defendant next claims that the court improperly ordered him to pay a
Whether the court was required to utilize the arrearage calculation formula set forth in the child support arrearage guidelines is a legal question over which our review is plenary. Although the preamble to the child support and arrearage guidelines is not part of the official regulations, and thus not binding on this court, we find it persuasive in resolving the defendant‘s claim. See Maturo v. Maturo, supra, 296 Conn. 82-83 (noting preamble is not part of regulations but is intended to assist in their interpretation). Specifically, section (i) of the preamble discusses the arrearage guidelines and their intended applicability, providing in relevant part: “[
In the present case, the court articulated that it ordered the $91,000 lump sum arrearage payment in the present case because it determined that the defendant had the ability to pay, given his current income and other finances, including the court‘s release to the defendant of $100,000 held in escrow at the time it issued its child support orders. The court indicated that it had released the funds specifically to aid the defendant in meeting his child support obligations. In short, the defendant has failed to demonstrate that the arrearage guidelines were applicable to the lump sum order or that the court abused its discretion in ordering a lump sum rather than periodic payments. Accordingly, this claim fails.
VIII
Finally, the defendant claims that rather than having denied the plaintiff‘s motion for contempt on its merits, which resulted in the remedial order requiring the defendant to pay the arrearage that arose out of the court‘s retroactive order of child support, the court should have dismissed the plaintiff‘s motion for contempt in its entirety. According to the defendant, because
In the defendant‘s objection to the motion for contempt, he challenged the merits of the motion by arguing that he had not violated any clear and unambiguous order because the court never stated precisely when or how the arrearage should be paid. The defendant‘s objection asked the trial court to deny the motion for contempt, which the court did, apparently for the reasons stated by the defendant. The defendant never asked the court to strike or dismiss the motion, either on the basis of the motion‘s legal or factual insufficiencies or on the ground that the motion did not comply with our rules of practice. As we have stated on numerous occasions, we will not entertain a claim or legal theory raised for the first time on appeal. “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one. . . . The theory upon which a case is tried in the trial court cannot be changed on review . . . [much like] an issue not presented to or considered by the trial court cannot be raised for the first time on review.” (Citation omitted; internal quotation marks omitted.) Corrarino v. Corrarino, 121 Conn. App. 22, 30, 993 A.2d 486 (2010). We therefore decline to review this claim.
The judgments are affirmed.
In this opinion the other judges concurred.
Notes
To the contrary, in his posthearing brief, instead of arguing that the arbitrator‘s finding regarding the defendant‘s gross income was binding on the court, he argued that the arbitrator had overstated his gross income and asked the trial court to make its own finding for the purpose of calculating child support. Presumably, if the finding of the arbitrator was binding on the court, as the defendant now argues on appeal, the trial court would have had no authority to find a lower amount of income than it had to find a higher amount. As we have expressed on a number of occasions, we generally disfavor permitting an appellant to take one legal position at trial and then take a contradictory position on appeal. “[O]rdinarily appellate review is not available to a party who follows one strategic path at trial and another on appeal, when the original strategy does not produce the desired result. . . . To allow the [party] to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the [opposing party and the court] with that claim on appeal.” (Internal quotation marks omitted.) Aurelien v. Aurelien, 142 Conn. App. 643, 649, 64 A.3d 1251 (2013).
Furthermore, we note that the doctrine of collateral estoppel, i.e., issue preclusion, “is neither statutorily nor constitutionally mandated. The doctrine, rather, is a judicially created rule of reason that is enforced on public policy grounds.” (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58-59, 808 A.2d 1107 (2002). In order to take advantage defensively of the doctrine, it ordinarily should be pleaded or otherwise brought to the attention of the court. See, e.g., Practice Book § 10-50. The defendant made no assertion regarding the binding nature of the arbitrator‘s finding in the present case until the postjudgment motion to reargue, which was filed after the court had made an independent finding regarding gross income that did not favor the defendant. Nevertheless, because the plaintiff has not argued that the defendant either forfeited or waived his right to challenge the preclusive nature of the arbitrator‘s factual finding regarding gross income, and the issue was raised by the defendant to the trial court in his motion to reargue the child support order and implicitly rejected by the trial court, we will review the claim.
In support of the act, then Senator Andrew J. McDonald stated: “Mr. President, this bill is intended to make available to individuals who are becoming involved in a dissolution action an opportunity to voluntarily enter into an arbitration proceeding for the purposes of resolution of that dissolution.
“Mr. President, the bill excludes from the scope of permissible arbitration any consideration of custody or child support payments within the scope of the arbitration referral.” (Emphasis added.) 48 S. Proc., Pt. 8, 2005 Sess., p. 2228.