Lead Opinion
Opinion
The defendant, Frank A. Maturo, appeals
We begin with a brief discussion of the facts found by the trial court and the relevant portions of the dissolution order. The parties were married on May 21,1988, and are the parents of twin boys bom on July 22, 1993. The plaintiff is forty-nine years old and holds a bachelor’s degree in psychology from Boston College. Since the couple became parents in 1993, she has been a stay-at-home mother. The defendant is fifty-one years old and holds an undergraduate degree from Yale University and a master’s degree in business administration from the Wharton School of Business. The defendant has been employed at the Manhattan office of Merrill Lynch since 1999, working in the area of global equity markets.
The defendant has been successful in his career and the family has enjoyed the financial benefits of his success. At the time of the dissolution, the defendant was earning a yearly base salary of approximately $200,000. He also was earning incentive compensation each year consisting of an annual cash bonus and an annual stock bonus, the latter comprised of both stock options and restricted Merrill Lynch stock. The trial court valued the defendant’s net cash bonus for his performance in the years 2005, 2004 and 2003 as $489,449.50, $597,137.67 and $500,000, respectively,
The parties’ total assets were likewise substantial, amounting to almost $18 million, of which approximately $10.65 million was awarded to the plaintiff and approximately $7.1 million to the defendant. The plaintiffs share of the marital assets consisted of the mortgage free $2.55 million marital home and the bulk of the family’s liquid assets, including approximately $8.1 million in cash and investment accounts. Of the $7.1 million in assets awarded to the defendant, approximately $5.7 million was in the relatively illiquid form of restricted shares, unexercised stock options, deferred compensation and the balance of a retirement account. The court also awarded the plaintiff alimony in the amount of $1215 per week plus 20 percent of the defendant’s annual net cash bonus and 20 percent of any future tax refund that the defendant might receive. The court further ordered the defendant to maintain comprehensive medical insurance benefits for the plaintiff at his expense for the maximum period allowed by law and to obtain a life insurance policy in favor of the plaintiff in the amount of $2 million, authorizing him, however, to reduce the amount of the policy so long as it remained sufficient to meet his payment obligations for alimony and child support.
The court designated the plaintiff as the sole custodian of the parties’ two minor children but granted the defendant regular visitation rights. The court based the child custody plan on a five week rotation, during which the children were to be with the defendant from Thursday afternoon through Monday morning three out of the five weeks, and Wednesday afternoon through Thursday morning the other two weeks. Under the court’s schedule, this rotation was to continue during summer vacations, except that each parent was granted an exclusive period of two weeks with the children. The effect of the schedule was to place physical custody and responsibility for the children with the plaintiff approximately 60 percent of the time and with the defendant approximately 40 percent of the time.
With respect to child support, the court awarded the plaintiff $636 per week, plus 20 percent of the defendant’s annual net cash bonus and 20 percent of any future tax refund that the defendant might receive. The court also ordered the defendant to pay 100 percent of the children’s private school tuition until they complete high school and to pay for “all work related day care expenses and summer day camp and extracurricular activities.” In addition, the court ordered the defendant to “maintain and pay for all medical and dental insuranee for the benefit of the children . . . [and] 100 percent of all unreimbursed medical, dental, orthodontia, optical and psychological expenses.” The court did not enter an order regarding payment of the children’s college expenses, but reserved jurisdiction to enter such an order at the appropriate time.
In entering the financial orders, the trial court explained that it had considered “all of the statutory criteria set forth in ... § 46b-84 as to support of a minor child, § 46b-215a-l et seq. of the Regulations of Connecticut State Agencies, as to child support . . . [and] [General Statutes] § 46b-82, as to the award of alimony . . . .” The court acknowledged, however, that the child support award departed from the schedule contained in the guidelines, which does not address circumstances in which the combined net weekly income of the parties exceeds $4000, because of “the [defendant’s] substantial assets, the [defendant’s] superior earning capacity, the extraordinary disparity in parental income
We begin by setting forth the applicable standard of review. “The well settled standard of review in domestic relations cases is that this 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. ... 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.) Simms v. Simms, 283 Conn. 494, 502,
I
NET CASH BONUS AWARD
The defendant first claims that the trial court improperly ordered him to pay 20 percent of his annual net cash bonus award as child support. He claims that the order was inconsistent with the guidelines and that the court’s proffered justification for its deviation from the guidelines was contrary to law. He further claims that the order was improper because it was not based on the needs of the children and thus amounts to disguised alimony. The plaintiff responds that the trial court is not bound by the guidelines when a couple’s income exceeds the maximum amount listed in the schedule. The plaintiff asserts that, in such cases, the only applicable criteria for setting an appropriate child support award are those set forth in § 46b-84, which grants the trial court broad discretion in determining the amount of child support and allows the court to consider other factors in addition to the financial needs of the child. We conclude that, although the trial court correctly acknowledged the general applicability of § 46b-84 and the guidelines, the child support order was improper because it was inconsistent with the statutory criteria and with the principles expressed in the guidelines.
A
Governing Statutes and Regulations
The legislature has enacted several statutes to assist courts in fashioning child support orders. Section 46b-84 provides in relevant part: “(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, 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. . . .
“(d) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employ-ability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child. ...”
The legislature also has provided for a commission to oversee the establishment of child support guidelines, which must be updated every four years, “to ensure the appropriateness of child support awards . . . .” General Statutes § 46b-215a.
The guidelines are defined as “the rules, principles, schedule and worksheet established under [the applicable sections] of the Regulations of Connecticut State Agencies for the determination of an appropriate child support award . . . .” Regs., Conn. State Agencies § 46b-215a-l (5). A “ ‘[c]hild support award’ ” is further defined as “the entire payment obligation of the noncustodial parent, as determined under the . . . guidelines . . . .” (Emphasis added.) Id., § 46b-215a-l (6). The guidelines include a schedule for calculating “the basic child support obligation” for families that have two minor children and a combined net weekly income ranging from $310 to $4000. Id., § 46b-215a-2b (f). The guidelines provide in relevant part that, “[w]hen the parents’ combined net weekly income exceeds [$4000], child support awards shall be determined on a case-by-case basis, and the current support prescribed at the [$4000] net weekly income level shall be the minimum presumptive amount.” Id., § 46b-215a-2b (a) (2). In “appropriate cases,” the guidelines also permit “the entry of a supplemental order ... to pay a percentage of a future lump sum payment, such as a bonus. Such supplemental orders may be entered only when . . . the percentage is generally consistent with the schedule . . . .” Id., § 46b-215a-2b (c) (1) (B) (ii); see also id., § 46b-215a-l (11) (A) (iii) (permitting, inter aha, bonuses to be included in calculation of “gross income”). In accordance with the statutory directives set forth in General Statutes § 46b-215b (a), the guidelines emphasize that the support amounts calculated thereunder are the correct amounts to be ordered by the court unless rebutted by a specific finding on the record that such an amount would be inequitable or inappropriate. Id., § 46b-215a-3 (a). Any such finding shall include the amount required under the guidelines and the court’s justification for the deviation, which must be based on the guidelines’ “[cjriteriafor deviation . . . .” Id., § 46b-215a-3 (b); see also General Statutes § 46b-215b (a). None of the guidelines suggest that an increase, rather than a decrease, in the support obligation in higher income families is appropriate merely because the noncustodial parent has the greater earning
The guidelines are accompanied by a preamble that is not part of the regulations but is intended to assist in their interpretation. Child Support and Arrearage Guidelines (2005), preamble, § (a), p. i. The preamble states that the primary purpose of the guidelines is “[t]o provide uniform procedures for establishing an adequate level of support for children”; id., § (c) (1), p. ii; and “[t]o make awards more equitable by ensuring the consistent treatment of persons in similar circumstances.” Id., § (c) (2), p. ii. The preamble explains that the commission extended the applicable range of the schedule in 2005 to include families with a combined net weekly income of up to $4000, an increase from the combined net weekly income limit of $2500 contained in the 1999 schedule, “to promote consistency in the setting of support orders at all income levels” by taking advantage of more recent data on child-rearing costs that included higher income families. Id., § (e) (6), p. vi.
The preamble further explains that the guidelines are based on the income shares model, which considers the income of both parents and “presumes that the child should receive the same proportion of parental income as he or she would have received if the parents lived together.” Id., § (d), p. ii. Children’s economic needs do not increase automatically, however, with an increase in household income. Although parents may spend more on their children in absolute dollars as their income grows, thus raising the child’s station and standard of living, the income shares model reflects the principle that spending on children as a percentage of household income actually declines as family income rises. The preamble specifically notes that “economic studies have found that spending on children declines as a proportion of family income as that income increases, and a diminishing portion of family income is spent on each additional child.” Id., § (d), p. iii; see also Gentile v. Carneiro,
In sum, the applicable statutes, as well as the guidelines, provide that all child support awards must be made in accordance with the principles established therein to ensure that such awards promote “equity,” “uniformity” and “consistency” for children “at all income levels.” (Emphasis added.) Id., § (c) (1) and (2), p. ii; id., § (e) (6), p. vi. General Statutes § 46b-84 specifically instructs that courts shall consider various characteristics and needs of the child in determining whether support is required, the amount of support to be awarded and the respective abilities of the parents to provide such support. Although the guidelines grant courts discretion to make awards on a “case-by-case” basis above the amount prescribed for a family at the upper limit of the schedule when the combined net weekly income of the parents exceeds that limit, which is presently $4000; Regs., Conn. State Agencies § 46b-215a-2b (a) (2); the guidelines also indicate that such awards should follow the principle expressly acknowledged in the preamble and reflected in the schedule that the child support obligation as a percentage of the combined net weekly income should decline as the income level rises. Thus, an award of child support based on a combined net weekly income of $8000 must be governed by the same principles that govern a child support award based on a combined net weekly income of $4000, even though the former does not fall within the guidelines’ schedule. Finally, although courts may, in the exercise of their discretion, determine the correct percentage of the combined net weekly income assigned to child support in light of the circumstances in each particular case, including a consideration of other, additional obligations imposed on the noncustodial parent, any 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 ar e inequitable or inappropriate and why the deviation is necessary to meet the needs of the child.
B
Amount of Award
Under the schedule, the required support payment for two children declines from 35.99 percent when the combined net weekly income of the family is $310 to 15.89 percent when the combined net weekly income of the family is $4000. Regs., Conn. State Agencies § 46b-215a-2b (f). Consequently, the support payment for two children under the guidelines should presumptively not exceed 15.89 percent when the combined net weekly income
In the present case, the trial court first awarded the plaintiff $636 per week, the amount designated in the schedule when there are two children and the combined net weekly income of the family is $4000 per week. The court, however, also awarded the plaintiff 20 percent of the defendant’s annual net cash bonus, which has varied in recent years from $489,449.50 to $1.368 million. See footnote 4 of this opinion. This translates into an increase in child support of approximately $1882 to $5261 per week, or three to eight times more than the base award. If the defendant’s bonus reaches such levels in future years, the total child support payment will increase to approximately $130,000 to $306,000 per year, or approximately $2500 to $5900 per week. Although the guidelines permit the consideration of bonuses when calculating a family’s combined weekly net income; Regs., Conn. State Agencies §§ 46b-215a-l (11) (A) (iii) and 46b-215a-2b (c) (1) (B); an open-ended child support award of 20 percent, rather than 15.89 percent or less, of the defendant’s variable bonus violates the guideline principles that a declining percentage of the combined net family income should be awarded as the income level rises and that the percentage of any future bonus allocated for child support should be “generally consistent”; id., § 46b-215a-2b (c) (1) (B) (ii); with the percentages established in the schedule in order to ensure consistency, uniformity and equity in the treatment of persons in such circumstances.
C
Application of Deviation Criteria
The trial court explained its reasons for deviating from the guidelines as the “[defendant’s] substantial assets . . . [and] superior earning capacity, the extraordinary disparity in parental income and the significant and essential needs of the [plaintiff] including, but not limited to, the need to provide a home for the children.” As if to downplay the significance of the deviation, the court further noted that it had not considered the defendant’s yearly noncash compensation, consisting of stock options and restricted stock in the amount of $530,000 for the year 2005. The court provided no other reasons, however, for its decision. We conclude that, although
The deviation criteria are narrowly defined and require the court to make a finding on the record as to why the guidelines are inequitable or inappropriate. In the present case, the court did not make such a finding. The court also misconstrued the deviation criteria. The court’s first reason for the large, open-ended award of bonus income was the defendant’s “substantial assets” and “superior earning capacity . . . .” This rationale appears to have been drawn from the first criteria, which permits the court to consider “[o]ther financial resources available to a parent [such as substantial assets and superior earning capacity] . . . that are not included in the definition of net income, but could be used by the parent for the benefit of the child or for meeting the needs of the parent.” Regs., Conn. State Agencies § 46b-215a-3 (b) (1); see also id., § 46b-215a-3 (b) (1) (A) and (B). The defendant’s annual net cash bonus, however, is not another “available” financial resource under the first criteria because bonuses are included in the definition of net income. Id., § 46b-215a-1 (11) (A) (iii) and (17). Thus, the court was not permitted to consider the defendant’s “substantial assets” and “superior earning capacity” to justify the additional child support award derived from his annual bonus. Furthermore, even if bonuses were not included in the guidelines’ definition of “net income” and could have been considered another “available” financial resource, the court did not explain how an increase in the level of support of 15.89 percent or more of the defendant’s bonus would have benefited the children or met the needs of the plaintiff, especially in light of yearly changes in bonus income unrelated to family circumstances. Indeed, it appears that the parties placed much of the defendant’s extraordinary income during their marriage into savings and investment accounts that had little effect on their daily standard of living. See Child Support and Arrearage Guidelines (2005), preamble, § (e) (4) (A), p. iv (higher income families devote more income to savings, other nonconsumption expenditures and discretionary adult goods); Ford v. Ford, supra,
The court next referred to “the extraordinary disparity in parental income . . . .” The court apparently was relying on the sixth criteria, in which income disparity is one of several “[sjpecial circumstances that permit a departure from the guidelines. Regs., Conn. State Agencies § 46b-215a-3 (b) (6). Income disparity may be considered, however, only when the custodial parent has the higher income and deviation from the presumptive support amount “would enhance the lower income [noncustodial] parent’s ability to foster a relationship with the child . . . .” Id., § 46b-215a-3 (b) (6) (B) (i). This consideration is unambiguously intended to protect the
The court’s third and final reason for departing from the guidelines was the “significant and essential needs of the [plaintiff] including, but not limited to, the need to provide a home for the children.” An award made to satisfy the “essential needs of the [plaintiff]” is improper, however, because child support awards, by definition, must benefit the children or foster their relationship to their parents. See General Statutes § 46b-84 (d). Any consideration of the plaintiffs needs thus must be restricted to the fashioning of an alimony award under General Statutes § 46b-82
In addition, although the court stated that it had considered all of the statutory criteria, it failed to provide any explicit justification for the award of bonus income that was related to the financial or nonfinancial needs or characteristics of the children under General Statutes § 46b-84 (d), which requires consideration of the child’s “age, health, station, occupation, educational
The dissent argues that the focus of the plurality is on the “physical needs of the children” and that this opinion “ignores the ‘new wave’ of cases that recognizes the significance of the standard of living of children of affluent parents.” We disagree. We recognize that children in high income families are accustomed to a more affluent lifestyle that should be maintained to the extent reasonably possible. Indeed, § 46b-84 mandates that the court consider factors such as the occupation, station, earning capacity and amount and sources of income of the parents as well as the age, health, station, educational status, expectation, estate and needs of the child. Section 46b-215b (a), however, provides that the guideline principles must be considered in “all determinations of child support amounts . . . .” Accordingly, the trial court should not have unfettered discretion in high income cases to make lavish child support awards that appear to be unrelated both to the needs of the children, even after considering their station, and to the principles articulated in the guidelines, including the principle that an award based on bonus income should be generally consistent with the schedule.
The dissent overlooks the trial court’s failure to provide any justification relating to the characteristics and needs of the children when the court granted the award of bonus income. The court made no findings regarding how much of the family’s disposable income before the divorce had been spent on the children to justify such an award and apparently did not consider that it already had (1) granted the defendant physical custody and responsibility for the children 40 percent of the time, (2) awarded the plaintiff the mortgage free $2.55 minion marital home and more than $8 million in cash and investment accounts, and (3) ordered the defendant to pay all of the children’s private school tuition, medical and dental insurance, unreimbursed medical, dental, orthodontia, optical and psychological expenses and all summer camp and extracurricular activity expenses. Thus, it is difficult to understand why the court made such a high net cash bonus award absent any findings or evidence in the record that it was needed by, or would be spent on, the children.
The effect of unrestrained child support awards in high income cases is a potential windfall that transfers wealth from one spouse to another or from one spouse to the children under the guise of child support. In the present case, the award of 20 percent of the defendant’s indeterminate annual bonus without any justification relating to the characteristics or needs of the children closely resembles the “disguise [d] alimony” this court disapproved of in Brown v. Brown,
We therefore conclude 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 § 46b-84 (d). Additionally, when there is a proven, routine consistency in annual bonus income, as when a bonus is based on an established percentage of a party’s steady income, an additional award of child support that represents a percentage of the net cash bonus also may be appropriate if justified by the needs of the child. When there is a history of wildly fluctuating bonuses, however, or a reasonable expectation that future bonuses will vary substantially, as in the present case, an award based on a fixed percentage of the net cash bonus is impermissible unless it can be linked to the child’s characteristics and demonstrated needs.
In determining whether to supplement the basic child support obligation with bonus income, the court also must consider the property division and custody schedule as well as any additional support obligations imposed on the noncustodial parent for education, health care, recreation, insurance and other matters. In the
We emphasize that trial courts remain free to exercise their discretion in determining the appropriate child support award in light of the particular circumstances of each case. As one court has stated: “When the [parties’] combined adjusted gross income exceeds the uppermost limit of the . . . schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obligor’s ability to pay for those needs. ... To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.” (Emphasis in original; internal quotation marks omitted.) Burgett v. Burgett,
Relying on Battersby v. Battersby,
The plaintiffs reliance on Battersby is also misguided because she takes its language out of context. In that case, the plaintiff husband’s weekly income exceeded the highest income level in the schedule. Battersby v. Battersby, supra,
We nonetheless did not endorse a completely ad hoc approach to higher income support awards, but noted with approval that the trial court had “considered the [guidelines, found the [schedule] inapplicable for arriving at a presumptive support amount, and considered the statutory criteria and other [g]uideline factors in arriving at its decision.” (Emphasis added.) Id., 472. Accordingly, Battersby implicitly bars the use of percentages greater than the highest provided for in the schedule when determining appropriate child support obligations in higher income cases and instructs, first, that the plaintiff in the present case is incorrect
Our reasoning in Battersby was recently applied by the Appellate Court in Gentile v. Carneiro, supra,
With respect to the plaintiffs concern that the children may suffer emotional harm because of a change in their standard of living, we reiterate that the court awarded the plaintiff $10.65 million, of which $8.1 million was in cash and investment accounts, the parties’ mortgage free $2.55 million marital home and alimony in the amount of $1215 per week plus 20 percent of the defendant’s annual net cash bonus and 20 percent of any future tax refund the defendant may receive. Additionally, the defendant was ordered to provide comprehensive medical insurance benefits for the plaintiff at his expense for the maximum period allowed by law and to obtain a life insurance policy in favor of
As we have stated previously, the guidelines do not cease to apply and permit trial courts unlimited discretion in setting child support awards merely because the income of a particular family exceeds some talismanic number on a chart. Neither this court, nor the trial court, is at liberty, where a particular family enjoys a relatively high income, to disregard the significant progress that has been made in standardizing child support awards since the advent of the guidelines. See 42 U.S.C. § 667 (b) (2) (1988). Removing consideration of the guidelines from child support decisions deprives high income families of the fairness and consistency the guidelines require and leaves the trial and appellate courts adrift, unanchored to the core principles that guide support awards in cases falling within the guidelines’ schedule. We therefore conclude that the trial court abused its discretion in awarding the plaintiff 20 percent of the defendant’s annual net cash bonus in child support.
In his concurrence, Justice Schaller claims that the plurality incorrectly elevates the child support guidelines to “controlling authority” in cases in which the parties’ combined net weekly income exceeds the upper limit of the schedule, thus infringing on trial courts’ broad discretion to determine child support awards in such cases on the basis of statutory authority alone, “unfettered” by the strict principles of the guidelines except as a factor to be “considered.” We disagree. The concurrence misconstrues our decision, which does not rely solely on the guidelines, but takes significant account of the applicable statutory authority on which the guidelines are based. The concurrence also fails to recognize that, in establishing a commission to promulgate and regularly update child support guidelines, subject to legislative approval, the legislature intended to limit the courts’ traditionally broad judicial discretion in child support matters.
Knowledge of the guidelines’ legislative history is essential in understanding how and why they limit judicial discretion, a subject that we previously addressed in Favrow v. Vargas,
The guidelines developed at that time were not intended to limit judicial discretion in entering family support orders, but to be flexible and nondirective. Id., 708. To this end, the commission specifically recommended that they be used by family relations counselors as part of the mediation process. Id., 710. In an addendum to the commission’s report, however, the mediators appointed under the special act “recommended that the guidelines be formally incorporated as guidelines to be considered by judges in the adjudication of family support matters.” (Internal quotation marks omitted.) Id.
hi 1985, the legislature revisited the issue and enacted Public Acts 1985, No. 85-548 (P.A. 85-548), entitled “An Act Implementing the Federal Child Support Enforcement Amendments of 1984.” Id. Section 8 of the act established a second commission “to develop guidelines, not later than January 1, 1987, for child support award amounts within the state. Such guidelines shall be available but not binding upon judges and other officials who have the power to determine child support awards.” (Emphasis added; internal quotation marks omitted.) Id., 710-11. Thus, although P.A. 85-548 specified that the new guidelines would address child support awards and expanded their use from family relations counselors to the courts, the act also explained, consistent with past practice, that the guidelines were not intended to be binding. Id., 711.
In 1989, the legislature considered the issue once again and enacted Public Acts 1989, No. 89-203, entitled, “An Act Concerning Child Support Guidelines.” Id. Section 1 of the act established a third commission “to review the child support guidelines promulgated pursuant to [§] 8 of [P.A.] 85-548 ... to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and ... to issue updated guidelines not later than January 1, 1991 and every four years thereafter.” (Internal quotation marks omitted.) Id., 711-12. Section 1 ofthe act is now codified as § 46b-215a and §§ 2 and 3 are now codified as § 46b-215b. Id., 712.
As we noted in Favrow, § 46b-215b (a) made four significant changes in the child support guidelines that had the effect of “displac[ing] the flexible and nondirective approach” previously taken. (Emphasis added.) Id. These changes included requirements that (1) the guidelines “ ‘shall be considered in all determinations of child support amounts within the state’ ”; (emphasis added) id.; (2) “ ‘there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered’ id.; (3) in order “ ‘to rebut the presumption in such case,’ ” the court or magistrate must make a “ ‘specific finding on the record that the application of the guidelines would be inequitable or inappropriate in aparticular case’ ”; id., 712-13; and (4) such a specific finding must be “ ‘determined under criteria established by the commission.’ ” Id., 713. The commission subsequently promulgated new guidelines in response to the statutory mandate, describing the deviation criteria in more detail and expanding them to ensure that child support orders would be in the best interests of the child and financially equitable to the parties. Id.
In summarizing this history, we observed in Favrow that “the guidelines evolved from an experimental, intentionally nondirective and flexible approach to the imposition of standards that are presumptively binding on the court or magistrate, from which deviations would be permitted only in accordance with specific findings related to specific criteria established by the commission. Thus, in general,
In light of the foregoing history, we no longer may view trial courts as having broad discretion to make child support awards in high income cases, “unfettered” by guideline principles that, according to Justice Schaller’s concurrence, need only be “considered.” The legislature in very clear terms delegated authority to the commission to establish the guidelines for the purpose of ensuring that child support awards are appropriate; General Statutes § 46b-215a; and further directed that the guidelines “shall be considered in all determinations of child support amounts . . . .” (Emphasis added.) General Statutes § 46b-215b (a). The statutory mandate to consider the guidelines cannot have a different meaning in the context of a high income family merely because the parties’ joint income exceeds the upper limit of the schedule. The guidelines are not restricted to the schedule alone, but also include “the rules, principles . . . and worksheet” contained therein. (Emphasis added.) Regs., Conn. State Agencies § 46b-215a-l (5). Moreover, the guidelines define “[c]hild support award” as, inter alia, “the entire payment obligation of the noncustodial parent, as determined under the . . . guidelines . . . .” (Emphasis added.) Id., § 46b-215a-l (6). Neither provision allows for an exception to be made in high income cases.
Furthermore, to construe the word consider differently in high income cases would not make sense when the purpose of the guidelines is to limit judicial discretion in child support matters “[t]o make awards more equitable by ensuring the consistent treatment of persons in similar circumstances.” Child Support and Arrearage Guidelines (2005), preamble, § (c) (2), p. ii. In its final report issued in January, 1991, the commission that promulgated the latest guidelines under the mandate of § 46b-215b noted that the guidelines “have been working quite well .... The order establishment process has been expedited . . . and . . . orders of support are generally more consistent. Generally, there is less litigation, and much more thought is being given to the reasons for deviation from the guidelines.” (Internal quotation marks omitted.) Favrow v. Vargas, supra,
In his concurrence, Justice Schaller also claims that applying the guidelines in high income cases constitutes an inappropriate expansion of regulatory authority. We disagree. The guidelines follow the statutory mandates closely and remain subject to legislative control through the statutory requirement that they be updated every four years and submitted to the standing legislative regulation review committee for approval and adoption. See General Statutes § 46b-215c.
Insofar as Justice SchaUer relies on Battersby, he takes the Battersby language out of context. Although the court in Battersby noted that the guidelines’ schedule contained no provision for extrapolating the percentages and award amounts therein to higher income levels, it also observed that several other factors in the guidelines were relevant in determining the support amount. Battersby v. Battersby, supra,
Justice Schaller’s concurring opinion maintains that, having elevated the guidelines improperly to governing authority, the plurality consigns the relevant statutes to a minor role in its analysis. We do not agree. The governing statutes, principally §§ 46b-84 (d), 46b-215a and 46b-215b, have been addressed at length throughout our analysis and we regard them as the foundation for the guidelines, which merely satisfy the statutory mandate of assisting the courts in making appropriate child support awards. Accordingly, this assertion has no merit.
II
TAX REFUND AWARD
The defendant also challenges the trial court’s order allocating 20 percent of any undetermined future tax refund as additional alimony and 20 percent as additional child support. The defendant specifically claims that the order is unworkable, subject to manipulation, will hinder his tax planning and will lead to unintended results. He describes various hypothetical scenarios that could result in such a refund, and, therefore, additional child support and alimony payments to the plaintiff that were not intended by the court and that could lead to hostile court proceedings between the parties. The plaintiff responds that the order was not improper because it was necessary to discourage the defendant from manipulating his tax withholding amounts to the plaintiffs disadvantage, and adds that the defendant’s claim is purely speculative and without any legal basis. We conclude that the order was improper only with respect to the payment of additional child support.
The following additional facts and procedural history are relevant to our resolution of this claim. The trial court ordered the defendant to pay to the plaintiff 20 percent of any state or federal tax refund that he receives as child support for any year in which child support is owed, and 20 percent of any state and federal tax refund that he receives as alimony for any year in which alimony is owed. In response to the plaintiffs motion seeking further articulation of this order, the trial court explained that “the plaintiff shall share in 20 percent of any tax refund awarded the defendant relating to over withholding on his base salary or cash bonus. The intention of the court is to discourage over withholding of taxes by the defendant in an attempt to reduce his support payments.” The defendant did not seek further clarification or articulation of the order.
We conclude that, insofar as the order allocated 20 percent of the defendant’s
Ill
DIVISION OF ASSETS
The defendant’s third and final claim is that the trial court improperly divided the parties’ marital assets. The defendant specifically claims that, although the court awarded the plaintiff assets valued at $10,650,719, or approximately 60 percent of the marital estate, and the defendant assets valued at $7,099,879, or approximately 40 percent of the marital estate, he will be required to pay income tax at ordinary income rates on most of the assets he received, whereas the plaintiff will pay income taxes for the assets she received at more favorable rates under applicable state and federal law. The defendant thus contends that the actual value of the assets he received is dramatically lower than the value indicated by the court, and, consequently, the disparity between the value of the assets awarded to the parties is much larger than the 60 to 40 percent allocation that the trial court intended. The plaintiff responds that the court did not intend to award 60 percent of the marital estate to the plaintiff and 40 percent to the defendant. Accordingly, it cannot have erred by ignoring tax effects that allegedly would frustrate an unintended outcome. We agree with the plaintiff.
The following relevant facts and procedural history are necessary to our resolution of this claim. At the time of the dissolution, the court awarded the plaintiff assets valued at $10,650,719 and the defendant assets valued at $7,099,879. In its memorandum of decision, the court stated that it had made the award after considering all of the statutory criteria set forth in General Statutes § 46b-66a
In Powers v. Powers,
Mindful of this principle, we conclude that the defendant’s claim has no merit. The court expressly articulated that it had not ascribed any particular percentage of the assets to either party. Its failure to consider the tax implications of the property division thus had no effect on its alleged intent to distribute the assets proportionately between the plaintiff and the defendant because it had no such intent. Moreover, in light of consistent holdings that a trial court is permitted, but not required, to consider the tax implications of its orders, the court’s apparent failure to do so was not improper. Finally, with respect to its underlying rationale for the division of assets, the court stated in its memorandum of decision that it had considered all of the applicable case law, evidence and statutory criteria, including §§ 46b-66aand46b-81. Under § 46b-81 (c), the court is presumed to have considered “the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income ...
As we have previously stated, “this 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.” (Internal quotation marks omitted.) Simms v. Simms, supra,
IV
REMEDY
“We previously have characterized the financial orders in dissolution proceedings as resembling a mosaic, in which all the various financial components are carefully interwoven with one another.” (Internal quotation marks omitted.) Finan v. Finan,
We conclude that the financial orders requiring the defendant to pay 20 percent of his annual net cash bonus and 20 percent of any undetermined future tax refund in child support are severable from the alimony, property division and other unrelated financial orders but are inextricably linked to the remaining child support orders concerning comprehensive health insurance, unreimbursed medical expenses, education, day care, summer camp and extracurricular activities. Although the defendant does not challenge those orders, the open-ended award of bonus income constituted a significant component of the total child support award. Consequently, any new determination of child support
The judgment is reversed only with respect to the child support orders and the case is remanded to the trial court for further proceedings according to law; the judgment is affirmed in all other respects.
In this opinion NORCOTT and McLACHLAN, Js., concurred.
Notes
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
Section 46b-84 provides for child support awards and is more fully described in part I of this opinion.
According to the Merrill Lynch compensation summary statements included in the record, the defendant’s gross cash bonus for the three years prior to the dissolution proceedings averaged approximately $863,000.
This presumably included both cash and stock. The record shows that the cash portion of the defendant’s bonus in the years 2003 to 2005 constituted more than 60 percent of the total award. Applying the same percentage to the defendant’s claimed $3.8 million bonus in the years 2000 and 2001, he would have received a cash bonus award during those years of approximately $2.28 million, or $1.368 million after taxes of 40 percent. Accordingly, his net cash bonus award in the years 2000 and 2001 would have been more than double the award he received in the years 2003 through 2005.
Both Justice Schaller’s concurring opinion and the dissenting opinion mischaracterize the holding in this case when they state, respectively, that “the plurality . . . bases its decision on the presumed authority of the . . . guidelines . . . rather than on statutory authority” and that the plurality concludes that “the guidelines control the trial court’s determination of child support” for high income families. To the contrary, we not only recognize, but emphasize, that trial courts must consider the statutory criteria as well as the guidelines when malking child support awards.
The commission consists of eleven members, including the chief court administrator or his designee, the commissioner of social services or his designee, the attorney general or his designee, the chairpersons and ranking members of the joint standing committee on the judiciary or their designees, a representative of the Connecticut Bar Association, a representative of legal services, a representative of the financial concerns of child support obligors and a representative of the permanent commission on the status of women, all of whom are appointed by the governor. General Statutes § 46b-215a.
Section 46b-215a-3 (b) of the Regulations of Connecticut State Agencies lists the six criteria that may justify deviation from the presumptive support amounts as, (1) other financial resources available to a parent “that are not included in the definition of net income, but could be used by such parent for the benefit of the child or for meeting the needs of the parent,” (2) “[e]xtraordinary expenses for care and maintenance of the child,” (3) “[ejxtraordinary parental expenses . . . that are not considered allowable deductions from gross income, but which are necessary for the parent to maintain a satisfactory parental relationship with the child, continue employment, or provide for the parent’s own medical needs,” (4) “[n]eeds of a parent’s other dependents . . . [where] a parent may be legally responsible for the support of individuals other than the child whose support is being determined,” (5) “[coordination of total family support” when considerations involving the division of assets, provision of alimony and tax planning “will not result in a lesser economic benefit to the child,” and (6) “[s]pecial circumstances” relating to reasons of “equity,” including shared physical custody, extraordinary disparity in parental income, the best interests of the child and “[o]ther” equitable factors.
We note that the relevant statutes and guidelines are consistent with federal regulations that require the states to adopt child support guidelines. For instance, 45 C.F.R. § 302.56 (a) provides: “Effective October 13, 1989, as a condition of approval of its [s]tate plan, the [s]tate shall establish one set of guidelines by law or by judicial or administrative action for setting and modifying child support award amounts within the [sjtate.” There is no allowance in § 302.56 for states to depart from their adopted guidelines and deviation requirements in high income cases. See id. We also note that there would be potential constitutional concerns if this were not the case, implicating both the equal protection and due process rights of the party paying support.
The dissent states that, because the trial court “did not award any of the defendant’s annual stock bonus as supplemental child support,” it is not possible “to determine the exact percentage of total family net income that is ordered for child support.” The dissent nonetheless inexplicably concludes that “if the defendant’s annual stock bonus has any material value at all, then the supplemental child support ordered by the trial court would likely be less than 15.89 percent of total family net income . . . .’’(Emphasis added.) This defies both logic and common sense. Without a valuation of the options and restricted stock, it is impossible to say what percentage of total family income will be paid as child support and one cannot possibly conclude, as does the dissenting opinion, that it would likely be less than 15.89 percent. What we do know is that it is unlikely that there was much value at all to the options and restricted stock.
Although the trial court did not explain why it did not allocate the defendant’s future stock bonus as income when making the child support, award, a review of the record provides several clues. We first note that the defendant’s previously awarded stock bonuses, some of which would be paid out in future years, were subject to the court’s equitable distribution order. Thus, they may not be counted because, to require payment of a portion of these bonuses when received by the defendant would result in “double-dipping.” It is also important to note that, at the time of the dissolution order, the children were thirteen years old. The defendant received a bonus each January for work performed the preceding year. Accordingly, the first time the defendant would have been expected to receive a bonus following the divorce was in January, 2007. Exhibits filed at trial indicate that the defendant’s stock bonuses in the past had consisted of options and restricted stock. The exhibits also indicate that the options awarded to the defendant after January, 2003, did not vest immediately but became exercisable at a rate of 25 percent per year on the anniversary date of the award. Similarly, restricted stock awarded to the defendant did not become vested and released until four years after the date of the award. The trial court made no factual findings regarding the division of the defendant’s stock bonus between options and restricted stock. Other jurisdictions have concluded, however, that stock awards in divorce cases are not included in gross income for the purpose of making alimony and child support orders until they vest and may be exercised. See, e.g., Murray v. Murray,
General Statutes § 46b-82 (a) provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court 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, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”
The trial court’s award in the present case, in addition to lacking any explicit justification based on the reasonable needs of the children, also ignored the statutory mandate that, subsequent to a dissolution, “the parents of . . . minor children] of the marriage, shall maintain the child[ren] according to their respective abilities . . . .” (Emphasis added.) General Statutes § 46b-84 (a). In this respect, the preamble to the guidelines provides in relevant part: “[T]he commission emphasizes that it is the obligation of both parents to contribute to the support of their children to the extent of their ability .... In addition to spending the designated support payments on the child, the parent receiving such payments remains obligated to expend a portion of his or her own personal income on the child’s behalf.” Child Support and Arrearage Guidelines (2005), preamble, § (e) (1), p. iv. In this case, however, the trial court apparently gave no consideration to the substantial assets and investment income of the plaintiff or the substantial alimony award that the plaintiff stands to receive in the form of her 20 percent share of the defendant’s annual bonus in fashioning the child support obligations of the defendant. Thus, the court must have expected that the plaintiff would spend nothing on the support of the children or that she would spend a substantially similar amount as the defendant. In either case, the award is not only inconsistent with the relevant statutes and guidelines, but totally ignores the income shares model, which serves as the basis for the guidelines.
General Statutes § 46b-66a provides: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may order the husband or wife to convey title to real property to the other party or to a third person.
“(b) When any party is found to have violated an order of the court entered under subsection (a) of this section, the court may, by decree, pass title to the real property to either party or to a third person, without any act by either party, when in the judgment of the court it is the proper action to take.
“(c) When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such property as if it were a deed of the party or parties.”
General Statutes § 46b-81 provides: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
“(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
“(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, 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, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
Concurrence Opinion
concurring. Although I agree with the plurality opinion that reversal is the proper remedy in this case, I cannot agree with the rationale offered to support that result. In particular, I believe that the plurality incorrectly bases its decision on the presumed authority of the child support and arrearage guidelines (guidelines), established pursuant to General Statutes § 46b-215a, rather than on statutory authority itself. I believe that, in above guidelines cases
Although it would, of course, be preferable to present a unified approach to guide the trial courts, I feel compelled to write separately to clarify what I am convinced is the correct approach for trial courts to use in determining support awards in above guidelines cases. The difference in approach is not simply a matter of choosing among relatively equivalent alternatives. A matter of principle is at stake — the discretionary authority of the trial courts. The plurality’s approach, by elevating the guidelines — which were created by a commission for child support guidelines (commission) set up by the legislature — to controlling authority, infringes upon the statutory authority of trial courts to determine support. My approach accords the trial courts their full statutory authority to exercise their discretion, unfettered by the strict “principles” of the guidelines, except as a factor that must be considered. As a result of my statutory analysis, I conclude that the award was improper and, accordingly, I would reverse the trial court’s financial orders in their entirety and remand the case for further proceedings.
I begin by reviewing the rationale that supports the plurality’s decision to reverse the judgment in this case. At the outset of its analysis, the plurality leaves no doubt about the primary basis for its reversal of the judgment of the trial court by stating emphatically: “We conclude that, although the trial court correctly acknowledged the general applicability of § 46b-84 and the guidelines, the child support order was improper because it was inconsistent with the statutory criteria and with the principles expressed in the guidelines.” (Emphasis added.) In other words, even though the trial court followed precisely the language of General Statutes § 46b-215b (a), which requires the trial court to consider the guidelines, the plurality reverses the trial court’s judgment because it did not strictly adhere to the “principles” of the guidelines. In part I A of its opinion, after reciting relevant language from §§ 46b-84 (d) and 46b-215b (a), as well as the guidelines, the plurality calls attention to the preamble of the guidelines (preamble), which it acknowledges “is not part of the regulations . . . .”
The plurality argues that my interpretation of § 46b-215b (a) employs two meanings of the statutory mandate to “consider” the guidelines. This contention is based on a misunderstanding of what I believe is the approach each trial court must take when fashioning a support order. As this court recognized in Favrow v. Vargas,
Contrary to the plurality’s assertion that “any 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,” the guidelines have no such
In part I B of its opinion, the plurality applies the principles that it has discovered in the preamble and the guidelines to determine that the award in this case is improper because it fails to follow those principles. Although I do not at this time take issue with the principies that the plurality has found and identified in the guidelines and preamble, those principles are open to more than one interpretation. The plurality goes on to evaluate the award in this case by direct application of the guidelines and with respect to the deviation criteria, concluding that the court should treat the highest percentage set out in the guidelines’ schedule as the presumptive ceiling on the child support allocation. Despite passing references to § 46b-84 (d) and the need basis for support, the plurality consistently treats the guidelines, and even the preamble, as if they were applicable and controlling authority.
The plurality claims to find support for its conclusion in our case law. Specifically, the plurality reasons that Battersby instructs that the guidelines remain applicable in above guidelines cases. In so concluding, the plurality places great emphasis on the fact that this court, in Battersby, noted with approval that the trial court had “considered the [guidelines, found the chart inapplicable for arriving at a presumptive support amount, and considered the statutory criteria and other [gjuideline factors in arriving at its decision.” (Emphasis added.) Battersby v. Battersby, supra,
In construing § 46b-215b, the court in Battersby stated: “The statute does not, despite . . . assertions to the contrary, require the trial courts to apply the [guidelines to all determinations of child support .... It requires only that the trial court consider the [g]uidelines. Moreover, the [g]uidelines do not contain provisions for disposable income in excess of $750. . . . Absent ambiguity, the courts cannot read into statutes, by construction, provisions that are not clearly stated. . . .
“There are no provisions for extrapolating to higher income levels the percentages or award amounts set forth in the [guidelines [schedule]. If the legislature or commission had intended to provide for such extrapolation of the [schedule], it could have said so. Two long-standing rules of statutoiy construction are that a court may not by construction supply omissions in a statute simply because it appears that
In its conclusion concerning this issue, the plurality asserts that “the guidelines do not cease to apply and peimit trial courts unlimited discretion in setting child support awards merely because the income of a particular family exceeds some taiismanic number on a chart.” Indeed, I do not dispute that the guidelines apply to the extent that they must be considered, but the guidelines’ schedule does not apply and the principles of the guidelines are not controlling. In cases such as this one, the trial courts do not have unlimited discretion because they are bound by statutory authority, namely, § 46b-84. This does not mean, of course, that the trial courts are free to disregard the progress in standardizing child support awards. Indeed, § 46-84 operates to constrain trial courts in a manner consistent with the movement away from the “flexible and nondirective approach” taken by the courts prior to the adoption of § 46b-215b. Favrow v. Vargas, supra,
The plurality’s concern that “[Removing consideration of the guidelines from child support decisions deprives high income families of the fairness and consistency the guidelines require,” is a legitimate one. Although it may be desirable to extend the guidelines criteria and principles — and perhaps the schedule— beyond the present income limits, such matters of policy are for the legislature to consider, not the court. See Battersby v. Battersby, supra,
Neither the legislature nor the commission has ruled out taking the guidelines into account, nor specified how they should be taken into account in high income cases, other than to say that they must be “considered.” The fact remains, however, that the current guidelines’ schedule does not assist in the determination of or provide a rebuttable presumption for the support award in above guidelines situations. As a result, our courts must look for authority to the governing statutes, in particular, § 46b-84 (d), but also §§ 46b-56 (c) and 46b-215b (c), in above guidelines cases. See General Statutes § 46b-215b (c) (“[i]n any proceeding for the establishment
Whether the trial court improperly ordered the defendant, Frank A. Maturo, to pay 20 percent of his annual net cash bonus as child support to the plaintiff, Laura E. Maturo, requires the interpretation of the statutory scheme and due consideration of the regulations, including the guidelines, which requires plenary review rather than abuse of discretion review. See Unkelbach v. McNary,
Because the guidelines do not control the financial scenario in this case, the question of statutory interpretation before the court is whether either § 46b-84 (d) or § 46b-56 (c) provides authority for the trial court to order a set percentage of bonus income that cannot be predicted before the end of any income year. The trial court incorrectly interpreted § 46b-84 (d) to provide a basis for its support order on an assumption that the guidelines did apply but that the deviation was justified. The trial court based the support order on several factors, including “the extraordinary disparity in parental income and the significant and essential needs of the [plaintiff] including, but not limited to, the need to provide a home for the children.” (Emphasis added.) Neither factor is a proper consideration for child support under either § 46b-84 (d) or § 46b-56 (c). Once it is determined that the guidelines do not control, courts are left to the statutory factors, which are explicit.
The trial court in this case failed to follow the principle of § 46b-84 (d) that need is the controlling force behind the elements listed in that statute.
What makes this case difficult is the fluctuating nature of the special income. Need is to be determined on the basis of statutory factors. Fluctuating need, driven by unpredictable, fluctuating income, is the antithesis of what the statutory factors are designed to do. Above the guidelines, need cannot logically be dependent on the factor of fluctuating income. It is certain that all the factors listed in § 46b-84 (d) must be considered because they bear on need. The trial court, therefore, must interpret the statute as providing a correlation between income level and need. Other goals, such as entitling children to share in their parents’ income or to live in financially equivalent homes, are not provided for in the statutory scheme.
The trial court in this case did not decide the support award on the basis of the relationship of income to need. It simply entered a set percentage based order without explaining how it related to need, which is the crucial principle specified in the statute. The trial court did, as noted, give as reasons factors that do not appear in § 46b-84 (d), namely, “the extraordinary disparity in parental income and the significant and essential needs of the [plaintiff] including, but not limited to, the need to provide a home for the children.” (Emphasis added.) The plaintiffs need appears to be a consideration that concerns the award of alimony. See General Statutes § 46b-82.
The list of factors in § 46b-84 (d) is wide-ranging and includes many that are not cost based. Although the trial court’s discretion in these matters is broad, it is not unlimited and it must be grounded on an accurate reading of the statutes. I recognize that § 46b-84 (d) includes station as well as amount and sources of income as factors to consider in determining need, but those factors do not open the door to making income based orders without demonstrating that those factors have a bearing on need.
It may be that the trial court could award a higher percentage of this special income to the plaintiff as alimony. Alimony obviously has an entirely different rationale and different consequences and is not limited to the same specific need requirement. See General Statutes § 46b-82. Currently, the present order is more in the nature of alimony, particularly because the court recited the plaintiffs needs as a reason for the order. I can fully
Until such time as the applicability of the guidelines to high income situations may be clarified by the legislature or the commission, I urge this court to instruct that, in above guideline income situations, courts look for authority first and foremost to the statutory factors set forth in § 46b-84 (d) in light of the best interests standard of § 46b-56, while giving due consideration to the guidelines, along with other relevant factors. The statutory factors that are part of a need based analysis are fully adequate to guide our courts in the future and will avoid the confusion that will be produced by inflating the role of the guidelines beyond that specified by § 46b-215b (a). For the foregoing reasons, I would reverse the judgment of the trial court as to the support order and tax refund order, and remand the case for a new hearing on the financial issues.
By “above guidelines” cases, I am referring to cases involving families whose combined net weekly income exceeds the highest amount in the guidelines schedule. “Above guidelines,” therefore, is synonymous with “above schedule.”
I would reach the same conclusion if the abuse of discretion standard of review were applied. Although I believe that statutory interpretation and, thus, the plenary standard of review, governs the issue, it is clear to me that under no circumstances did the trial court have discretion to award support that was unrelated to need under § 46b-84 (d).
General Statutes § 46b-84 (d) provides: “In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employ-ability, estate and needs of the child.”
Although the bonus is predictable based on the annual income calculation, it is not predictable in advance for purposes of structuring a support order.
I would describe “need” as expressed in § 46b-84 (d), as derived need, that is, as derived from the combination of factors specified in § 46b-84 (d), which is not related to actual need, in an absolute sense of survival above the poverty level, for example.
Although § 46b-56 (c) directs the court to keep in mind the best interests of the children, that important consideration does not override or supplant the factors listed in § 46b-84 (d). Surely a consideration of “best interests” does not give the court free rein to supplant the § 46b-84 (d) need based factors with a general “best interests” interpretation that would permit anything that might conceivably benefit the children. In light of the specific factors in § 46b-84 (d), the § 46b-56 (c) best interests principle seems to be no more than a guiding light for the § 46b-84 (d) analysis.
General Statutes § 46b-82 (a) provides in relevant part that “ [i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court 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, vocational skills, employability, estate and needs of each of the parties . . .
As to part II of the plurality opinion, I share the concerns expressed with regard to the bonus award.
Concurrence Opinion
concurring. As attractive as the dissent’s liberation from the principles of the child support and arrearage guidelines (guidelines)*
I write separately, however, because I believe this case well demonstrates the problems inherent in using net income to determine alimony and child support payments. The statutes authorizing such payments specify neither gross nor net income. General Statutes § 46b-61 merely authorizes the court to award “support of any minor child” without any standard.* *
This court and other courts in our state have repeatedly indicated that “[i]t is well settled that a court must base child support and alimony orders on the available net income of the parties, not gross income.” Morris v. Morris,
Although this is stated as a settled principle of Connecticut law, gross income rather than net income apparently has been used in fashioning support awards in numerous cases, and these orders have been upheld. For example, recently the Appellate Court stated that the mere reference to gross income in entering financial orders may not be determinative. Hughes v. Hughes,
Indeed, it is quite common for parties entering into agreements settling dissolution cases to provide for payments of alimony based on the gross income of the payor. See, e.g., Issler v. Issler,
The most significant problem with using net income is calculating the true net income. Net income requires a determination of the correct amount of deductions, including federal, state and local income taxes, which can be difficult to calculate and even more difficult to verify without knowing all of an individual’s deductions. In contrast, gross income from all sources is much more easily and accurately determined. Gross income generally includes income from all sources earned and unearned, taxable and nontaxable. Although I recognize that determining child support on the basis of gross income, rather than net income, would require a revision of the guidelines, there are many states that use gross income to calculate child support and merely use lower percentage figures for support than those used in Connecticut.
The method used by the trial court in this case to provide for the escalator payments demonstrates the folly and difficulty of requiring that these orders be based solely upon the net income of the payor. Accordingly, I would revisit this “settled” principle because it is impractical to apply and, significantly, is not required by statute. Instead, I would allow trial courts the discretion to use gross income in all support determinations.
As the plurality explains; see part IA of the plurality opinion; the legislature created a commission to oversee the establishment of the guidelines. See General Statutes § 46b-215 (a).
The principles of the guidelines implicated here are derived from the income shares model, on which the guidelines are based. Child Support and Arrearage Guidelines (2005), preamble, § (d), pp. ii-iii. The income shares model reflects the statutory obligation of both parents to contribute to child support in accordance with their abilities. See General Statutes § 46b-84 (d). Under the income shares model, the portion of family income spent on children declines as a percentage of family income as that income increases because proportionately their need decreases. Child Support and Arrearage Guidelines (2005), preamble, § (d), p. iii; see footnote 3 of this opinion.
General Statutes § 46b-84 (d) provides: “In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employ-ability, estate and needs of the child.” (Emphasis added.)
The plaintiff was awarded $8.1 million in cash and investment accounts, including an investment account that generated approximately $95,680 of interest per year, based upon the income reflected in her financial affidavit. This is in addition to the trial court’s generous award of alimony.
General Statutes § 46b-61 provides: “In all cases in which the parents of a minor child live separately, the superior court for the judicial district where the parties or one of them resides may, on the application of either party and after notice given to the other, malee any order as to the custody, care, education, visitation and support of any minor child of the parties, subject to the provisions of sections 46b-54, 46b-56, 46b~57 and 46b-66. Proceedings to obtain such orders shall be commenced by service of an application, a summons and an order to show cause.”
General Statutes § 46b-84 (a) provides in relevant part: “Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, 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. . . .”
General Statutes § 46b-82 provides in relevant part: “(a) ... In determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . 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, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.
“(b) 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 alimony.”
This case highlights the difficulty of using a net income approach because of the following situation, which could easily occur. Assume the defendant is awarded a bonus in December of year one and makes his alimony payment that December. Because the alimony payment is deductible, the defendant’s tax liability will be decreased and, depending upon other income and deductions (yet another problem), he will receive a tax refund in year two that arguably is attributable to the alimony that was paid in December of year one. The deduction requires the payment of additional alimony in year two, which of course is deductible in year two and leads to another tax refund in year three. Assuming bonuses are received in successive years, this problem will repeat itself indefinitely.
It appears that some states use gross income for making child support while others use net income. All three of our aborning states use gross income for the purpose of
Massachusetts, by statute, bases alimony on gross income. See, e.g., Britton v. Britton, 69 Mass. App. 23, 27,
Concurrence Opinion
with whom KATZ and PALMER, Js., join, dissenting in part. I agree with and join part III of the majority opinion. I disagree, however, with the plurality’s conclusion in part I of its opinion.
In part I of its opinion, the plurality concludes that the trial court applied the wrong standard of law when it entered an order requiring the defendant, Frank A. Maturo, to pay 20 percent of his annual bonus as supplemental child support for his two minor children because this order is inconsistent with the applicable statutory criteria and the applicable child support and arrearage guidelines (guidelines). The plurality further concludes that the child support order was improper because it was an open-ended, variable child support award at a higher percentage of the defendant’s net income than the 15.89 percent that is applied at the upper end of the schedule of basic child support guidelines (schedule), and was not reasonably related to the needs of the children. I disagree with these conclusions for several reasons. First, I disagree with the plurality that the guidelines control the trial court’s determination of child support for this high income family. Second, even if the guidelines were determinative for this high income family, I disagree with the plurality that the trial court’s award requiring the defendant to pay 20 percent of the net cash portion of his annual bonus as supplemental child support constitutes an abuse of discretion. Third, I disagree with the plurality that the trial court did not properly consider and apply the factors set forth in General Statutes § 46b-84. Finally, I also disagree with the plurality’s cramped view of what constitutes “the needs of the child” for purposes of our child support statutes and guidelines.
The plurality opinion sets forth the facts found by the trial court. The following additional facts, however, are also relevant to the issue on appeal. In ordering the defendant to pay child support in the amount of $636 per week plus 20 percent of his annual net cash bonus after state and federal taxes were deducted, the trial court stated the following: “The [guidelines] reach a maximum weekly income of $4000 per week and the [defendant’s] income is well in excess of $5000 per week. The basis for the deviation from the [guidelines] is the [defendant’s] substantial assets, the [defendant’s] superior earning capacity, the extraordinary disparity in parental income and the significant and essential needs of the [plaintiff, Laura E. Maturo] including, but not limited to, the need to provide a home for the children. The court is also making this order because it has not considered the [defendant’s] yearly noncash compensation (composed of stock options and restricted stock in the amount of $530,000 for 2005 and received in January, 2006) in making its alimony and child support awards. The court did consider the [defendant’s] stock options and restricted stock in the property division.”
I agree with the plurality with respect to our standard of review. “The well settled standard of review in domestic relations cases is that this 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. ...
My first disagreement is with the plurality’s threshold conclusion that the guidelines are controlling with regard to the determination of child support for this high income family. Piecing together words from various parts of the applicable statutes, guidelines and the preamble to the guidelines, the plurality concludes that, “[i]n sum, the applicable statutes, as well as the guidelines, provide that all child support awards must be made in accordance with the principles established therein to ensure that such awards promote ‘equity,’ ‘uniformity’ and ‘consistency’ for children ‘at all income levels.’ ”
I begin with General Statutes § 46b-215b (a),
I turn next to the guidelines themselves. There is no dispute that the maximum net income addressed by the guidelines schedule is $4000 per week and that the net income of the defendant in the present case at the time of dissolution exceeded $5000 per week. The preamble to the guidelines specifically states that courts “remain free to fashion appropriate child support awards on a case-by-case basis where the combined income exceeds the range of the schedule . . . .” Child Support and Arrearage Guidelines (2005), preamble, § (e) (6), p. vi. A review of the history of the guidelines demonstrates the intent of the commission for family support guidelines (commission) with regard to high income families. In 1991, the first year in which the commission promulgated the guidelines, the preamble stated, “[w]hen the combined family income exceeds the cap, the guidelines do not apply except that the order should not be less than that which is applicable at the highest income level within the guidelines, subject to the court’s discretion.” (Emphasis added.) Child Support and Arrearage Guidelines (1991), preamble, § (c) (3), p. 4. When the commission published its updated edition of the guidelines in 1994, the commission “extended the applicable range of the guidelines under these regulations. . . . [Above that level], courts remain free to fashion appropriate child support awards on a case-by-case basis, provided the amount of support prescribed at the [highest income level contained in the schedule] is presumed to be the nrünimum that should be ordered in such cases.” (Emphasis added.) Child Support and Arrearage Guidelines (1994), preamble, § (e) (1), p. vii. Thus, contrary to the conclusion of the plurality, the preamble to the guidelines demonstrates that the commission intended for the trial courts to have discretion to determine child support awards “on a case-by-case basis” when family income exceeds the highest income level contained in the guidelines, although the guidelines do establish the minimum level of presumptive weekly support that should be awarded in such cases. Id. The guidelines therefore do not establish any presumptive amount of child support for high income families, other than the minimum weekly support amount.
My understanding of the role that the guidelines play in establishing child support awards for high income families is farther informed by this court’s decision in Battersby v. Battersby,
The guidelines are defined as “the rules, principles, schedule and worksheet ... for the determination of an appropriate child support award, to be used when initially establishing or modifying both temporary and permanent orders.” Regs., Conn. State Agencies § 46b-215a-l (5). Accordingly, consistent with Battersby, I would conclude that although the schedule set forth in the guidelines is not controlling for determining a child support award for a high income family like the one in the present case, it is appropriate for the trial court to consider the other portions of the guidelines in forming its award. For instance, in determining what constitutes income for purposes of child support it is appropriate to look to the definition of “gross income” provided in the guidelines. Moreover, as the definition of the guidelines provides, the guidelines are informed by general principles that are important to consider in all support determinations. Contrary to the plurality, however, I would rely on the entirety of the basic principles set forth in the preamble. Child Support and Arrearage Guidelines (2005), preamble, § (d), pp. ii-iii. These basic principles explain that our guidelines are based on the income shares model and further set forth the general principles underlying the income shares model. Id. I disagree, however, with the plurality that the principles of the guidelines mean merely that “spending on children declines as a proportion of family income as that income increases . . . .” Id., p. iii. Although I recognize that is one of the principles underlying the income shares model, it is not the only one. As explained more fully herein, the income shares model is guided primarily by the premise that the “child should receive the same proportion of parental income as he or she would have received if the parents lived together” and it rejects the notion that child support awards must be based on an itemized showing of need. Id., p. ii.
Thus, given the consideration requirement of § 46b-215b (a), the text, principles and schedule of the guidelines, including the preamble, and this court’s ruling in Battersby, I would conclude that the trial court in the present case properly complied with the statute and the guidelines when it: (1) considered the guidelines; (2) determined that the defendant’s income exceeded the highest income shown on the guidelines schedule; (3) ordered the highest amount of weekly support as shown on the schedule; and (4) then used its discretion to order additional support as permitted under the guidelines because the defendant’s income exceeded the highest income on the schedule.
The plurality spends several pages of its opinion detailing the history of the adoption of the guidelines to demonstrate that the purpose of the guidelines was to limit
In interpreting guidelines similar to ours, which specifically “require a court determination on a case-by-case basis” in those cases in which the income of the parent paying support exceeds $6250 per month, the Tennessee Supreme Court concluded that “[t]he guidelines’ very latitude reflects this need for an exercise of discretion.” Nash v. Mulle,
Furthermore, even if I were to agree with the plurality that the guidelines do control the determination of child support awards for a high income family like the one in the present case, I would not conclude that the trial court abused its discretion by requiring the defendant to pay 20 percent of his annual cash bonus as additional child support rather than the 15.89 percent that the plurality concludes is appropriate.
The plurality opinion concludes that “the support payment for two children under the guidelines should presumptively not exceed 15.89 percent when the combined net weekly income of the family exceeds $4000, and, in most cases, should reflect less than that amount.” In support of its conclusion, the plurality points to the
In support of its conclusion, the plurality states that the trial court was bound by “the guideline principles that a declining percentage of the combined net family income should be awarded as the income level rises and that the percentage of any future bonus allocated for child support should be ‘generally consistent’ . . . with the percentages established in the schedule in order to ensure consistency, uniformity and equity in the treatment of persons in such circumstances.” (Citation omitted.) The plurality’s conclusion in this regard is flawed. First, its approach offers no more consistency or uniformity than the approach taken by the trial court because the plurality concludes that the supplemental child support order should be 15.89 percent or less. Utilizing this approach, however, under the same facts as the present case, one trial court properly could order supplemental child support of 1 percent of a substantial annual bonus and another trial court properly could order supplemental child support of 15.89 percent of a substantial annual bonus. I disagree that this approach is any more consistent, uniform or equitable than the trial court’s award in the present case of 20 percent of the defendant’s annual cash bonus.
The plurality also relies on Battersby v. Battersby, supra,
The plurality also cites Gentile v. Carneiro,
Moreover, it is important to remember that the trial court in the present case only awarded 20 percent of the defendant’s annual net cash bonus as supplemental child support; it did not award any of the defendant’s annual stock bonus as supplemental child support. In entering the supplemental child support order, the trial court explained that “[t]he court is also making this order because it has not considered the [defendant’s] yearly noncash compensation (composed of stock options and restricted stock in the amount of $530,000 for 2005 and received in . . . 2006) in making its alimony and child support awards.” The trial court made no factual findings about the value of the defendant’s annual stock bonus. We therefore are unable to determine the exact percentage of total family net income that is ordered for child support. It is evident, however, that if the defendant’s annual stock bonus has any material value at all, then the supplemental child support ordered by the trial court would likely be less than 15.89 percent of total family net income that the plurality concludes is the ceiling for the award.
The defendant’s only response to this analysis is factually and legally unsupported. The defendant states: “The plaintiff also asserts that the percentage of [the] defendant’s bonus-based income being paid to her as support is lower than claimed by [the] defendant since [the] defendant’s calculations do not include his non-cash stock bonus. . . . However, the court treated this noncash award as an asset awarded to [the] defendant as part of its property distribution, expressly excluding this from consideration of the alimony and child support awards. ” It is true, of course, that the trial court awarded the defendant, as part of the property settlement, all of the restricted and unexercised stock shares that the defendant had earned prior to the dissolution of the couple’s marriage. Contrary to the defendant’s contention, however, there is no property distribution order respecting future stock compensation, occurring after the dissolution, nor would one expect there to be as it is well established that such future earnings are not marital assets and, therefore, not subject to division. See, e.g., Bornemann v.
The defendant cites to § 5 of the trial court’s memorandum of decision as support for his contention that “the court treated th[e] noncash [bonus] award as an asset awarded to [the] defendant as part of its property distribution.” This section of the court’s decision, however, addresses child support only, not marital property distribution. In ordering the defendant to pay a portion of his net cash bonus in child support, the court emphasized that it “has not considered the [defendant’s] yearly noncash compensation ... in making its alimony and child support awards.” The court then stated that it “did consider the [defendant’s] stock options and restricted stock in the property division." (Emphasis added.) Thus, the court clearly distinguished between “noncash compensation,” which it elected not to levy for support purposes, and “stock options and restricted stock in the property division,” which were distributed as part of the marital estate. (Emphasis added.) With respect to the stock options and restricted stock, the record reflects that the court awarded the defendant, as part of the property division, restricted shares of Merrill Lynch stock with a value of $1,850,000 and unexercised stock options with a value of $3,529,000. Those shares and options, however, were earned prior to the dissolution of the marriage.
I also disagree with the plurality’s conclusion that the trial court did not properly apply the statutory criteria in the present case. Child support orders are governed by, inter alia, General Statutes §§ 46b-84
“(c) In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered in addition to and not in lieu of the criteria for such awards established in [section] 46b-84 . . .
I first turn to the text of § 46b-84 (d), which sets forth the manner in which the trial court is to determine whether a child is in need of maintenance. The subsection provides: “In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such
Indeed, the punctuation of § 46b-84 (d) supports my conclusion. “Although punctuation is not generally considered an immutable aspect of a legislative enactment, given its unstable histoiy; see State v. Roque,
General Statutes § 46b-56,
It is well established that in determining child support awards, courts should consider “the standard of living that the child or children would have enjoyed if the family had continued to live together.” 24A Am. Jur. 2d 414, Divorce and Separation § 942 (2008). This court repeatedly has recognized that it is proper for courts to consider the parents’ standard of living in determining child support payments. See
On the basis of the foregoing, I would conclude that, in the present case, the trial court did not abuse its discretion by ordering child support in the form of 20 percent of the defendant’s annual cash bonus for the children, now age sixteen, whose father earns an extraordinarily high income and who have experienced a lifestyle consistent with this high income for then-entire lives. The trial court’s entry of a weekly child support order of $636, the maximum amount under the guidelines schedule, plus 20 percent of the defendant’s annual net cash bonus, is in accord with the directive of § 46b-84 (d) to consider the age, station and educational status and expectation of the children, and of § 46b-56, which requires a consideration of the children’s best interests. The trial court’s orders in the present case did not include an educational support award; instead, the trial court “reserve[d] jurisdiction as to how the children’s college expenses shall be paid.” It is not unreasonable, however, to infer that the trial court intended that a portion of the supplemental child support order might be put aside to meet the cost of college, particularly considering the fact that both parents are college educated and the defendant holds an advanced degree. In addition, it was reasonable for the trial court to anticipate expenses for such items as automobiles, automobile liability insurance, extended vacations, specialized camps and other luxuries that these teenagers likely would have enjoyed had their parents not divorced. The trial court’s supplemental support order ensures that the children will have the luxuries that they would have received if the family had remained intact.
Finally, I also disagree with the plurality’s cramped reading of the statutes and the guidelines with regard to the needs of the children. The plurality concludes as follows: “[W]hen there is a proven, routine consistency in annual bonus income, as when a bonus is based on an established percentage of a party’s steady income, an additional award of child support that represents a percentage of the net cash bonus also may be appropriate if justified by the needs of the child. When there is a history of wildly fluctuating bonuses, however, or a reasonable expectation that future bonuses will vary substantially, as in the present case, an award based on a fixed percentage of the net cash bonus is impermissible unless it can be linked to the child’s characteristics and demonstrated needs.” In my view, this approach is in direct conflict with the applicable statutes which, as discussed previously herein, demonstrate that child support orders are to be awarded by taking into account a
The guidelines themselves provide evidence that this state has explicitly rejected the notion that child support determinations should be based solely on the costs associated with meeting the physical needs of the child. The preamble to the guidelines explicitly explains that “[t]he [guidelines] are based on the [i]ncome [s]hares [mjodel. The [i]ncome [s]hares [m]odel presumes that the child should receive the same proportion of parental income as he or she would have received if the parents lived together. Underlying the income shares model, therefore, is the policy that the parents should bear any additional expenses resulting from the maintenance of two separate households instead of one, since it is not the child’s decision that the parents divorce, separate, or otherwise live separately.
“The [i]ncome [s]hares [m]odel has proven to be the most widely accepted, particularly due to its consideration of the income of both parents. About two-thirds of the states follow the income shares model ....
“The [ijncome [s]hares [m]odel reflects presently available data on the average costs of raising children in households across a wide range of incomes and family sizes. Because household spending on behalf of children is intertwined with spending on behalf of adults for most expenditure categories, it is difficult to determine the exact proportion allocated to children in individual cases, even with exhaustive financial affidavits. However, a number of authoritative economic studies based on national data provide rehable estimates of the average amount of household expenditures on children in intact households. The studies have found that the proportion of household spending devoted to children is systematically and consistently related to the level of household income and to the number of children.” Child Support and Arrearage Guidelines (2005), preamble, § (d), pp. ii-iii. “Rather than defining the individual needs of a child on a case-by-case basis as is required by the cost sharing methodology, an income sharing approach looks to economic evidence to establish an identified portion of the income of an intact family which is spent on children.” 3 A. Rutkin, Family Law and Practice (2009) § 33.04[2] [c]; see also Jenkins v. Jenkins,
The plurality cites Ford v. Ford,
“In recent years, there has been a definite trend away from the type of reasoning described in [Ford v. Ford, supra,
The Pennsylvania Superior Court explained this concept in the case of Branch v. Jackson,
“A wealthy father has a legal duty to give his children the advantages which his financial status indicates to be reasonable .... [A parent] should not be forced by a support order to make personal sacrifices to give them all the advantages to which we referred above, but a father with the assets, the youth, and the ability of the defendant can furnish his children with these advantages without any recognizable sacrifice on his part.” (Internal quotation marks omitted.)
I also find persuasive the decision of the California Court of Appeal in In re Marriage of Ostler & Smith,
The plurality also relies on In re Marriage of Bush, supra,
The plurality’s focus on the physical needs of the children is a step backward and ignores the “new wave” of cases that recognizes the significance of the standard of living of children of affluent parents.
I therefore respectfully dissent.
I also disagree with part II of the plurality opinion as it relates to the child support award for the same reasons as explained herein and therefore do not separately address that part of the plurality opinion.
The plurality also concludes that “although courts may, in the exercise of their discretion, determine the correct percentage of the combined net weekly income assigned to child support in light of the circumstances in each particular case, including a consideration of other, additional obligations imposed on the noncustodial parent, any 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 met the needs of the child.” The plurality further concludes that the trial court improperly applied the deviation criteria in the present case. Because I conclude that the guidelines are not determinative in the case of high income families, I do not address whether the trial court properly applied the deviation criteria
General Statutes § 46b-215b provides in relevant part: “(a) The child support guidelines established pursuant to section 46b-215a and in effect on the date of the support determination shall be considered in all determinations of child support amounts, including any past-due support amounts, and payment on arrearages and past-due support within the state. In all such determinations, there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support, including any past-due support, or payment on any arrearage or past-due support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the Commission for Child Support Guidelines under section 46b-215a, shall be required in order to rebut the presumption in such case. . . .
“(c) In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered in addition to and not in lieu of the criteria for such awards established in sections 46b-84, 46b-86, 46b-130, 46b-171, 46b-172, 46b-215, 17b-179 and 17b-745.”
General Statutes § 46b-84 provides in relevant part: “(a) Upon or subsequent to the annulment or dissolution oí any marriage or the entry of a decree of legal separation or divorce, 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. . . .
“(d) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.
General Statutes § 46b-56 provides in relevant part: “(a) In any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children if it has jurisdiction ....
“(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers. . . .”