The parties' marital history previously was set forth in
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.
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.
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
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.
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.
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
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
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
"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 ,
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.
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,
"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
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, provides no legal support for his de minimis argument, and we are aware of none.
The defendant's argument is predicated on his calculation of the presumptive minimum child support pursuant to the child support guidelines. "[W]hen 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 [General Statutes] § 46b-84(d)."
On the basis of his weekly income alone, the defendant argues that the parties' combined weekly income exceeds $4000, and therefore the child support for their son should not exceed the presumptive maximum of 12.04 percent of that income. Given the disparity in the plaintiff's annual income reported on the defendant's worksheet and the court's worksheets, the defendant calculates that the range of the parties' combined weekly income is between $10,815.38 and $11,261.63, which results in a presumptive maximum child support award of between $1302.17 and $1355.90 per week.
Although we may agree that there is a permissible range between the presumptive minimum and maximum child support when the parties' combined income exceeds $4000 per week; see Dowling v. Szymczak ,
The court's finding with respect to the plaintiff's income is clearly erroneous and for that reason, the court improperly granted the defendant's motion to modify child support with respect to the child support it ordered the plaintiff to pay. We, therefore, reverse the judgment in part and remand the case for a new hearing with regard to the parties' respective child support obligations.
B
The plaintiff's second claim regarding the court's child support order is that the court abused its discretion by terminating the defendant's child support obligation retroactively because (1) the court lacked sufficient
"Where the legal conclusions of the trial court are challenged, on appeal those conclusions are subject only to the test of abuse of discretion.... Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... The salient inquiry is whether the court could have reasonably concluded as it did.... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action." (Internal quotation marks omitted.) Hayward v. Hayward ,
General Statutes § 46b-86(a)"governs the availability of retroactive modification of unallocated alimony and child support orders." Cannon v. Cannon ,
"Although there is no bright line test for determining the date of retroactivity of child support payments, this court has set forth factors that may be considered. Specifically, in [
The following facts are relevant to the plaintiff's claim. The defendant previously had filed a motion for modification of unallocated child support and custody on June 3, 2014, due to the fact that he had assumed physical custody of the parties' daughter. In that motion, the defendant did not request modification retroactive to the date the motion was served on the plaintiff.
The issue of child support for the parties' daughter was not addressed until May 7, 2015, when Judge Tindill held a hearing on the defendant's motion for modification of unallocated alimony and child support.
1
On appeal, the plaintiff argues that the court lacked sufficient information to calculate the parties' financial situation on September 2, 2015, and relies on the procedural history and dicta in this court's decision with respect to the defendant's appeal. In that appeal, this court stated that the trial court "did not have the information necessary to make its child support orders retroactive ... because the parties did not submit financial affidavits at or close to that date [of service]." LeSueur v. LeSueur ,
The defendant argues, in part, that the court had sufficient evidence by which it could make its child support orders retroactive. Namely, that on September 10, 2015, the date the plaintiff was served with the motion for modification, the defendant was the son's
The record supports the defendant's argument. The motion to modify unallocated alimony and child support was served on the plaintiff on September 10, 2015, the defendant had assumed primary physical custody of the son in August, 2015, and the son was living full-time in the defendant's home while the defendant continued to pay the plaintiff pursuant to the July 31, 2015 child support order. We conclude on the basis of the court's memorandum of decision that it had information pertaining to the parties' financial circumstances in June, 2015, which was at or near the time when the defendant served the motion for modification of unallocated alimony and
The plaintiff also claims that the court improperly modified the child support order retroactive to September 2, 2015, because she continued to pay expenses of the parties' son from September 2, 2015, to the date of the hearing even though the son was not primarily living in her home. She claims that if the court granted the defendant's motion to modify retroactively, the retroactivity should only be to February 8, 2016, which is when the court accepted the parties' agreement that their son live with the defendant, and the date on which the defendant first requested that the motion be granted retroactively.
In her brief on appeal, the plaintiff argues that she testified as to the expenses she incurred for the son. Although the court made no findings with respect to the expenses the plaintiff claims that she paid; see Wyatt Energy, Inc. v. Motiva Enterprises, LLC ,
General Statutes § 46b-224 specifically "addresses the question of how a change in custody affects the payment of child support ...." Tomlinson v. Tomlinson ,
"Modification, including retroactive modification, of a child support order upon a change of custody under § 46b-224, comports with the default rule that child support follows the children, unless the trial court has made a finding that another arrangement is appropriate. This statute indicates that the legislature viewed the provision of custody as the premise underlying the receipt of child support payments; the legislature did not envision that the custodian would be required to pay child support to a person who does not have custody, as well as (in cases in which the obligor obtains custody) expend resources to provide directly for the care and welfare of the child. In fact, under the Child Support and Arrearage Guidelines ... child support award is defined as the entire payment obligation of the noncusto dial
In Tomlinson ,
In the defendant's appeal, this court stated on the basis of the plaintiff's testimony that she had rebutted the presumption that "the former custodian is no longer primarily responsible for providing the children's necessary living expenses" because she continued to have expenses associated with the care of the parties' daughter. (Internal quotation marks omitted.) LeSueur v. LeSueur , supra,
The court found that the parties had agreed that their son could move to the defendant's home soon after the court issued its July 31, 2015 child support orders regarding their daughter. It also found that the son had been living with the defendant since the time the motion to modify custody and child support was filed and that the defendant continued to pay the plaintiff child support pursuant to the court's July 31, 2015 orders. There is no explanation in the record as to why the motion to modify, filed in August, 2015, was not heard until February 8, 2016, which is when the court accepted the parties' agreement that the defendant would assume custody of their son.
II
The plaintiff's second claim is that the court misconstrued the separation agreement and consequently ordered the parties to timely pay the postsecondary tuition expenses of their children. We disagree that the court misconstrued the separation agreement.
During the hearing on their motions for modification, the parties asked the court to determine their respective obligations, if any, to pay the college tuitions of their children. Article 13 of the separation agreement, titled Miscellaneous Child Support Matters, is at the center of the plaintiff's claim. Paragraph 13 (B) (iv) of the separation agreement concerns the children's postsecondary education and provides as follows: "In the event that a child, upon graduating high school, attends a fully accredited college or university and matriculates in a course of study leading to an undergraduate degree, the parties shall each contribute their proportionate share to the cost thereof, in accordance with their income at that time (including any [pretax income from
During the hearing, the defendant testified that paragraph 13 (B) (iv) of the separation agreement meant that there was no limit, or so-called UConn cap, on their respective tuition contributions if the parties agreed on the respective school or college their children would attend. The plaintiff testified that she believed that the UConn cap applied if the parties could not agree on their respective financial obligations. The court found that the parties mutually agreed that their daughter would attend Princeton University and their son Dartmouth College and that neither the UConn cap nor the cost of a four year degree within the Connecticut state university system applied as contended by the plaintiff.
On appeal, the plaintiff claims that the court improperly ordered the parties to pay their children's tuition
"It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is to be regarded and construed as a contract.... Accordingly, our review of a trial court's interpretation of a separation agreement is guided by the general principles governing the construction of contracts.... A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.... If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law.... When the language of a contract is ambiguous, [however] the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous." (Citations omitted; internal quotation marks omitted.) Remillard v. Remillard ,
On the basis of our review of Article 13 (B) (iv) of the agreement, we conclude that the language is clear and unambiguous. The first clause of the subject article addresses the circumstances under which the parties
In the present case, there is no dispute that the parties and their children mutually agreed that their daughter would attend Princeton University and their son would attend Dartmouth College. Because the parties mutually agreed , it is unnecessary to consider the next sentence of the article, which only applies when the parties are unable to agree on the educational institution and/or their respective obligations therefore . The word therefore refers back to the educational institution about which there is no agreement. Consequently, the court properly determined that the UConn cap and tuition limit on a four year degree from a Connecticut state university system did not apply under the present circumstances where the parties and their children mutually agreed that their daughter should attend Princeton University and their son should attend Dartmouth College.
Moreover, we will not construe an agreement to reach a patently absurd result. The separation agreement clearly is intended to have the parties and their children mutually contemplate, investigate, and agree on the
III
The plaintiff's final claim is that the court improperly denied her motion to modify unallocated alimony and child support. We do not agree.
Following a hearing on the motion, the court found that the plaintiff alleged several substantial changes in circumstances since January 27, 2011, namely that her earnings from employment had decreased significantly,
In issuing its order, the court stated that it had reviewed the motions of the parties and considered their testimony and all the evidence they had submitted. In addition, the court stated that it had considered the relevant rules, case law and statutory provisions, as well as the arguments of counsel.
In addition, the court found that following the change of custody with respect to the parties' daughter, the defendant has paid support to the plaintiff in accordance with the agreement and the court's orders. It also found that the agreement's original percentage formulae using the defendant's pretax income from employment to calculate
On appeal, the plaintiff claims that the court abused its discretion by denying her motion to increase her unallocated alimony and support. She argues that because the court determined that the reduction in her salary constituted a substantial change in circumstances; see General Statutes § 46b-86 ;
Moreover, "[a] fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.... No single criterion is preferred over others, and the trial court has broad discretion in varying the weight placed on each criterion under the circumstances of each case." (Internal quotation marks omitted.) Brown v. Brown , supra,
Paragraph 12.8 (c) of the agreement states: "In no event shall the percentage formulae set forth in paragraph 12.1 (a), (b) and (c) of this Agreement or in any decree incorporating its provisions, in whole or in part, be changed or amended by the parties or the court; except that either party shall be entitled to seek a modification of the percentage formulae set forth in paragraphs 12.1 (a), (b) and (c)
In the present case, the plaintiff's employment was reduced from full-time to part-time and her salary was
"Appellate courts look at the record, and determine whether the [trial] court either incorrectly applied the law or could not reasonably conclude as it did." (Internal quotation marks omitted.) Caffe v. Caffe , supra,
As to the plaintiff's argument that the amount of money she received from the defendant was reduced due to the fact that she no longer was receiving child support for the parties' daughter, child support follows the child. The fundamental purpose of child support is to provide for the care and well-being of minor children.
Both of the parties agree that the formulae used to calculate the amount of support the plaintiff is to receive from the defendant's pretax income from employment were not intended to equalize their incomes. According to the defendant, the parties agreed that the plaintiff would receive a greater amount of alimony as the defendant's income increased, but the amount of alimony as a percentage of that income would decline. The defendant notes that their incomes, even after he paid the plaintiff pursuant to the formulae, were never equal, even at the time of dissolution. He argues that "equalize" means that the parties' incomes could be balanced. The parties did not ask the court to articulate
When these highly educated and sophisticated parties signed the agreement at the time their marriage was dissolved, they had negotiated its provisions with the assistance of counsel. They bargained for a change of unallocated support if one or both of their children decided to live with the defendant, and they bargained
The judgment is reversed with respect to the trial court's determination regarding the plaintiff's child support obligation and the date on which the defendant's child support obligation terminated, and the case is remanded for further proceedings consistent with this opinion; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
The son's move to the defendant's home coincided with the judgment modifying the child support obligations of the parties with respect to the daughter's residing with the defendant.
The motion to modify custody and child support was served on the plaintiff on September 10, 2015.
Pursuant to the agreement, the amount of unallocated alimony and child support the defendant has to pay to the plaintiff annually is calculated as a percentage of his pretax income from employment. The term of unallocated alimony and child support is from March 11, 2011, until June 30, 2020. The percentage is calculated pursuant to an agreed upon stepdown formula that reduces the percentage of the defendant's pretax income payable to the plaintiff. The amount of the defendant's pretax income from employment on which the plaintiff's alimony is calculated is capped at $1 million annually.
From August 1, 2015, until January 31, 2017, the unallocated alimony and child support the defendant was to pay the plaintiff was to be calculated on the basis of the following formula.
Pretax Income Received by the Percentage to be Paid defendant from Employment to the plaintiff $0 to $316,000 40 percent $316,001 to $660,000 26.5 percent $661,000 to $1,000,000 19 percent
Paragraph 13 of the separation agreement, titled "Miscellaneous Child Support Matters," provides in relevant part:
"A. Based on the parties combined parental income the [defendant] shall be responsible for [50] percent of child support 'add-ons' and the [plaintiff] shall be responsible for [50] percent of the child support add-ons. [Add-ons] for purposes of this Agreement include the following: reasonable child care expenses (incurred when a party is working); mutually agreed upon education expenses other than those addressed in C below, including but not limited to tutoring; extracurricular school activities and lessons including sports and music; and summer camp."
During the portion of the hearing held on May 17, 2016, counsel for the parties asked the court to consider an additional matter regarding the parties' obligation to pay for their children's postsecondary education. The court agreed to consider the matter. See part II of this opinion.
The court also denied the plaintiff's motion to modify the allocation of expenses, "add-ons," and private school tuition between the parties. On appeal, the plaintiff has not claimed that the court abused its discretion in that regard. (Internal quotation marks omitted.)
The parties' daughter was recruited to play field hockey at Princeton University and their son was recruited to play ice hockey at Dartmouth College.
See General Statutes § 46b-56c(f). The "UConn cap" refers to the amount of tuition paid by a "full-time in-state student" to attend the University of Connecticut.
The plaintiff does not claim that the court improperly accepted the parties' stipulation that their son would live with the defendant. Her claim pertains only to the court's child support orders.
Paragraph 12.8 (c) of the agreement provides in relevant part: "In no event shall the percentage formulae set forth in paragraph 12.1 (a), (b) and (c) of this Agreement or in any decree incorporating its provisions, in whole or in part, be changed or amended by the parties or the court; except that either party shall be entitled to seek a modification of the percentage formulae set forth in paragraph 12.1 (a), (b) and (c) in the event of a substantial change of circumstances of either party or in the event it is agreed by the parties or ordered by a Court that one or more of the children shall reside with the [defendant] as his or her primary residence."
The subject worksheet is identified as number 150 on the trial court docket list.
The plaintiff's May 17, 2016 financial affidavit shows the plaintiff's gross weekly income to be $5339.56, which includes alimony and child support. The plaintiff reported $7916.66 in gross monthly salary from her employer, $4317.20 of child support, $7134.24 in monthly alimony, and $3770 in monthly dividend and interest income.
General Statutes § 46b-84(a) provides in relevant part: "Upon or subsequent to the ... dissolution of any marriage ... the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance. Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of child support."
The trial court "modified the defendant's child support obligation retroactive to December 9, 2014, rather than the date that the motion was served on June 30, 2014, because it found that December 9, 2014, was the date when his primary physical custody of the daughter was no longer temporary." LeSueur v. LeSueur , supra,
The question in Tomlinson was whether a provision in the parties' separation agreement that expressly prohibited modification of child support pursuant to the nonmodification clause of § 46b-86(a) precluded a trial court from modifying the child support portion of an unallocated support order. Our Supreme Court noted that "while § 46b-86(a) addresses the modification of child support in general, § 46b-224 covers the particular effect of a change in custody on preexisting child support orders." Tomlinson v. Tomlinson , supra,
With respect to the defendant's appeal in LeSueur v. LeSueur , supra,
The plaintiff testified that the parties' son used the credit card when he ate at restaurants with his friends, to purchase concert tickets, and to pay for Uber rides from the airport, among other things. The son also let the parties' daughter use his credit card when she misplaced the credit card the plaintiff had provided to her.
General Statutes § 46b-56c(f) is not mentioned in the separation agreement.
Both in the trial court and at oral argument before us, the plaintiff, who is herself a graduate of Princeton University, had no plan for how her children's tuition would be paid if not pursuant to the separation agreement. She expected the court to fashion a remedy. The court will not fashion a remedy in the face of the unambiguous plan in the parties' separation agreement.
Our review of the transcript of the hearing discloses that the court took judicial notice of prior proceedings in the file.
General Statutes § 46b-86(b) provides in relevant part: "In the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith."
General Statutes § 46b-82(a) provides in relevant part: "In determining whether alimony shall be awarded ... the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties ...."