Maturo v. Maturo

80 A.2d 161 State 930, (2008); Conn. 958 denied,

cert. App. 553-54, (2002) 800 A.2d 564 Riser, 543, Conn. demonstrating $1532 evidence other (discovery supported cocaine trafficking was crack that defendant contraband). Accordingly, possession inference of jury reasonably could have con we conclude that pos had present in the case cluded that the defendant narcotics sufficient session of the verdict. guilty

The is affirmed. judgment justices the other concurred. opinion this A. E. MATURO v. FRANK MATURO

LAURA (SC 17776) McLachlan, Zarella, Norcott, Katz, Palmer, Vertefeuille, Schaller and Js.* * argued panel consisting originally of this was This case before Thereafter, Norcott, Katz, Vertefeuille, and Schaller. Justices Zarella sponte, court, pursuant (b), that the Practice Book 70-7 sua ordered Accordingly, Palmer be Justices and McLachlan case considered en banc. they record, transcript panel, briefs and were added have read argument. of oral seniority justices listing reflects status on this court as of their argument. the date of oral May 4, officially 19, September released

Argued Kenneth J. with whom were Shields, Jr., M. Robert Horton, W. for the brief, Wesley and, Bartschi on appellant (defendant). brief, George was Ecker, whom, D. with on

Steven Jepsen, appellee (plaintiff). for the C. Dembo, R. Justine Rak-

Campbell Barrett, D. Steven intern, Depaola, legal certified ich-Kelly and Felicia Children’s Law Center Connecti- filed a brief for the amicus curiae. cut, Inc., as

Opinion defendant, Maturo, Frank A. ZARELLA, J. The court dissolving from the trial appeals1 judgment Maturo, Laura E. and enter- plaintiff, to the marriage his claims that orders. The defendant certain financial ing when it ordered (1) trial court abused its discretion annual percentage a fixed of his pay plaintiff him to pay him to support, (2) as child ordered net cash bonus judgment appealed of the trial court to The defendant from the pursuant Court, appeal Appellate we transferred the to this (c) § and Practice Book 65-1. General Statutes 51-199 plaintiff percentage a fixed his annual state and alimony tax

federal income refunds additional support, parties’ divided the marital assets. (3) plaintiff responds The that the child award was proper and is consistent with General Statutes 46b- Additionally, plaintiff argues 84.2 that the trial court is not bound to consider the child and arrearage by the commission for guidelines (guidelines) enacted implement guidelines (commission) parties’ the statute when the annual income exceeds set forth in the schedule basic child range the income support obligations (schedule). plaintiff The also argues that the trial court did not abuse its discretion when it percent ordered the to share 20 of his annual defendant plaintiff percent tax refund with the and 20 with his and when it children, respectively, divided the marital property. part We reverse in of the trial judgment court.

We with a brief discussion of the facts found begin portions the trial court and the relevant of the disso- May parties 21,1988, lution order. The were married on parents boys July and are the of twin bom on 1993. 22, plaintiff forty-nine years is old and holds a bache- lor’s from Boston Since degree psychology College. stay- couple parents 1993, became she has been a fifty-one years at-home mother. The defendant old undergraduate degree and holds an from Yale Univer- sity in business administration degree and master’s from the Wharton School of Business. The defendant employed has been at Manhattan office of Merrill Lynch 1999, since in the area of working global equity markets. and

The defendant has been successful his career family enjoyed has the financial benefits of his suc- 2 fully provides Section 46b-84 for child awards and is more part opinion. I of this described

85 was dissolution, the defendant the time of cess. At $200,000. salary approximately yearly base earning year each compensation incentive earning He also was stock and an annual cash bonus of an annual consisting options of both stock comprised latter bonus, the valued trial court stock. The Lynch Merrill restricted performance his bonus for net cash the defendant’s $489,449.50, 2004 and 2003 years 2005, although $500,000, respectively,3 $597,137.67 historically has bonus that his annual defendant states $3.8 mil- approximately and reached higher been much The trial court also 2000 and 2001.4 years in the lion options at the stock defendant’s unexercised valued the restricted and his $3,529,000, dissolution at time of the $1,850,000. stock at substantial, likewise total assets were parties’

The approxi- $18 million, of to almost amounting plaintiff $10.65 to the mately million was awarded plain- $7.1 million to the defendant. approximately of the mort- marital assets consisted tiffs share of the $2.55 home and the bulk of million marital free gage $8.1 approximately family’s liquid assets, including $7.1 Of the investment accounts. million cash and approxi- defendant, million in assets awarded to form of relatively illiquid $5.7 in the mately million was options, deferred unexercised stock shares, restricted account. balance of a retirement compensation and the Lynch summary compensation According statements to the Merrill years record, gross cash bonus for the three included in the the defendant’s approximately $863,000. prior proceedings averaged to the dissolution presumably and stock. The record shows that This included both cash years portion 2005 consti bonus in the 2003 to the cash of the defendant’s percentage percent Applying the same than 60 of the total award. tuted more years 2001, $3.8 he million bonus in the 2000 and to the defendant’s claimed years approximately during bonus award those would have received a cash percent. million, Accordingly, $2.28 $1.368 his million after taxes of 40 years 2001 would have been more award in the 2000 and net cash bonus years through in the 2005. than double the award he received

86 plaintiff alimony The court also awarded the $1215 per plus percent amount of week 20 of the defen- any percent dant’s annual net cash bonus and 20 future tax refund that the defendant receive. The might court further ordered the defendant to maintain com- prehensive plaintiff medical insurance benefits for expense period at his for the maximum allowed law policy and to obtain a life insurance in favor of the $2 plaintiff million, him, the amount of authorizing however, policy to reduce the amount of the so long payment as it remained sufficient to meet his obliga- alimony support. tions for and child designated plaintiff The court as the sole custo- parties’ dian of granted two minor children but defendant visitation The court regular rights. based custody plan rotation, on a five week during the children were to be with the defendant from Thurs- day Monday afternoon three out of through morning weeks, Wednesday the five afternoon through Thursday morning the other two weeks. Under the schedule, court’s this rotation was to continue during vacations, except parent summer that each was granted period an exclusive of two weeks with the children. place physical custody The effect of the schedule was to responsibility plaintiff for the children with the approximately percent 60 of the time and with the approximately percent defendant 40 of the time. respect With to child support, court awarded the $636 plaintiff per week, plus percent 20 of the defen- percent any dant’s annual net cash bonus and 20 future tax refund that the defendant receive. The might pay percent court also ordered the defendant to private they the children’s school tuition until complete pay day school and to for “all work related care high day expenses camp and summer and extracurricular addition, activities.” In the court ordered the defendant pay to “maintain and for all medical and dental insur- per- . . . of the children for the benefit [and] anee orthodontia, medical, dental, of all unreimbursed cent court did not The expenses.” psychological optical children’s col- of the payment regarding an order enter to enter such jurisdiction reserved expenses, but lege time. appropriate at the an order the trial court orders, the financial entering statutory of the considered “all that it had explained a support of in ... 46b-84 as set forth § criteria of seq. Regulations et of the child, 46b-215a-l minor . . . to child Agencies, State Connecticut of as to the award 46b-82, Statutes] [General [and] however, acknowledged, . . . .” The court alimony the schedule departed from support award that the child not address which does in the guidelines, contained weekly combined net in which the circumstances of “the $4000, because parties of the exceeds supe- the assets, substantial [defendant’s] [defendant’s] disparity in extraordinary capacity, earning rior essential needs parental significant income and need to, not limited but [plaintiff] including, further The court a home for the children.” provide yearly the defendant’s that it had not considered noted in $530,000 stock compensation, consisting noncash year 2005, making and restricted stock for options was Judgment awards. alimony and child appeal this followed. 12, 2006, on June entered applicable standard by setting We forth begin in domestic standard of review review. “The well settled will not disturb trial is that this court relations cases legal abused its the trial court has court orders unless basis in have no reasonable findings discretion or its the founda- explained, ... has often been the facts. As clearly is in a this is that the trial court tion for standard personal factors position to advantageous assess . .” (Internal case . . to a domestic relations significant Simms, Simms v. Conn. quotation omitted.) marks v. 494, 502, (2007), quoting 927 A.2d 894 Borkowski 729, 739, 228 Conn. 638 A.2d 1060 Borkowski, (1994). “In whether a trial court has abused its determining matters, broad discretion in domestic relations we every presumption allow reasonable favor of the quotation action.” marks (Internal correctness its Bender, 733, 740, v. 258 Conn. omitted.) Bender A.2d 197 deference (2001). “Notwithstanding great proceedings, accorded the trial court dissolution . may if, trial court’s . . be reversed the exer ruling trial discretion, applies wrong cise of its Borkowski, supra, law.” 740. standard of Borkowski question whether, extent, and to what the child apply, however, question of law plenary over which this court should exercise review. T.K., App. 502, 506, See In re 105 Conn. 939 A.2d 9 application particular of a statute to a set of (“[t]he apply plenary is a of law to which we question facts denied, 914, standard of cert. 286 Conn. 945 review”), McNary, 350, A.2d 976 Unkelbach Conn. (2008); statutory 710 A.2d 717 357, (1998) (interpretation support that determinations con governs scheme child question stitutes of law).

I NET CASH BONUS AWARD improp- The that the trial defendant first claims court erly pay percent ordered him to of his annual net support. cash bonus award as child He claims that the guidelines order was inconsistent with the that the proffered justification court’s for its deviation from the contrary to law. He further was claims guidelines improper the order was because it was not based on the needs of the children and thus amounts to disguised alimony. plaintiff responds The that the trial court is couple’s when a not bound maximum listed in schedule. exceeds the amount applica- cases, only that, asserts such plaintiff child appropriate an setting ble criteria 46b-84, grants forth in are those set § award the amount determining broad discretion trial court to consider other allows the court the child. financial needs of in addition to the factors correctly the trial that, although We conclude of 46b-84 and applicability general acknowledged improper was the child order guidelines, statutory criteria with the it was inconsistent because in the principles expressed guidelines.5 and with the sup- variable child open-ended, an The court ordered than a increase, an rather award that constituted port parties’ combined in the decrease, percentage families at that established for weekly net income over addition, it limit of the schedule. upper guidelines’ expressly failed to the deviation criteria and misapplied pro- forth in 46b-84 thus (d), consider the factors set Accord- acceptable rationale for its decision. viding no its the trial court abused we conclude ingly, respect with to the judgment discretion and that the support orders must be reversed. A Statutes and Governing Regulations to assist The has enacted several statutes legislature support orders. Section 46b- fashioning courts Upon subsequent or provides part: “(a) 84 relevant any or the marriage the annulment or dissolution of to entry separation divorce, the legal of a decree of opinion opinion concurring dissenting the Both Justice Schaller’s they state, respectively, holding in this when mischaracterize the case presumed authority plurality . . of the . . . “the . bases its decision on statutory authority” plurality guidelines . . on and that the . rather than guidelines concludes that “the control the trial court’s determination of child support” contrary, only recognize, high income families. To the we not but statutory emphasize, criteria as well as that trial courts must consider the guidelines malking support when awards. shall maintain

parents marriage, of a minor child of the respective their if the according abilities, the child Any pro- child is in need of maintenance. postjudgment by chapter 906 shall be cedure afforded available to present secure the and future financial interests of a party periodic in connection with a final order for the . . . payment support. of child whether a child is in need of “(d) determining if in and, need, respective maintenance abilities of parents provide such maintenance and the health, amount the court shall consider the thereof, age, station, occupation, capacity, amount and earning income, estate, employ- sources of vocational skills and ability parents, of each of the and the sta- age, health, tion, occupation, expectation, educational status and income, skills, amount and sources of vocational employability, estate and needs of the child. ...” provided also has for a commission legislature support oversee the establishment of child guidelines, every updated years, which must be four “to ensure appropriateness of child awards . . . .” General Statutes 46b-215a.6 General Statutes 46b- § provides updated 215c further that the issued by the commission shall be submitted to the standing adopted review legislative regulation committee and provisions chapter 54, in accordance with the Act, Uniform Administrative Procedure General Stat- seq. utes et Moreover, legislature 4-166 has thrown its expressly full behind the declar- guidelines, members, including The commission consists of eleven the chief court designee, administrator or his the commissioner of social services or his designee, attorney chairpersons general designee, ranking or his joint judiciary standing designees, members committee on the or their representative Association, representative of the Connecticut Bar a legal services, representative of the financial concerns of child representative obligors permanent and a of the commission on the status women, appointed by governor. of all of whom are General Statutes § 46b-215a. pursuant . . established guidelines that .

ing “[t]he support of on the date 46b-215a and in effect section in all determina- shall be considered determination all deter- .... In such support amounts tions child presumption a rebuttable minations, there shall be from the which resulted amount of such awards support amount of such application guidelines applica- specific A on the record finding .... inappro- inequitable be guidelines of the would tion criteria priate particular case, in a as determined under 46b- under section by the established [commission] presumption to rebut the 215a, required shall be order General Statutes (Emphasis added.) case.” such 46b-215b (a). § rules, principles, are defined “the guidelines

The applica- under and worksheet established schedule [the Connecticut State Regulations ble sections] appropriate child for the determination of an Agencies . . State Regs., Agencies award . .” Conn. support ” “ A award’ is further 46b-215a-l (5). § ‘[c]hild payment the noncus- obligation defined as “the entire . guide- under . . parent, todial as determined added.) Id., (6). . . . 46b-215a-l (Emphasis § lines .” “the calculating a schedule for guidelines The include have for families that obligation” basic weekly net two minor children and a combined Id., $310 $4000. from 46b-215a-2b ranging (f). part that, provide relevant guidelines “[w]hen parents’ weekly [$4000], combined net income exceeds be a case- awards shall determined on at the by-case basis, support prescribed and the current weekly net income level shall be the minimum [$4000] presumptive Id., (a) (2). amount.” 46b-215a-2b permit also “the “appropriate cases,” entry supplemental pay percentage of a order ... as a Such lump payment, of a future sum such bonus. only . . . may be entered when supplemental orders is consistent with percentage generally the schedule Id., . . . .” (c) (1) (B) id., 46b-215a-2b see also (ii); § inter (11) (A) aha, 46b-215a-l (iii) (permitting, § to be of “gross bonuses included calculation with the income”). statutory accordance directives guide- set forth in General Statutes 46b-215b (a), § emphasize support lines that the calculated amounts by thereunder are the amounts ordered correct to be by specific unless a finding rebutted on the inequitable record that such an would amount be or Id., Any 46b-215a-3 inappropriate. (a). finding such § required shall guidelines include amount under the justification and for deviation, the court’s which “[cjriteriafor must on the guidelines’ be based deviation Id., . . . .” 46b-215a-3 see also General Statutes (b); (a). guidelines § 46b-215b None of the that an suggest rather than increase, decrease, a obliga- tion in is higher appropriate merely families parent because the noncustodial has the earn- greater capacity.7 ing accompanied by are guidelines preamble that part

is not of the but is regulations intended assist (b) Regulations Agencies Section 46b-215a-3 of the State Connecticut may justify presumptive support lists the six from criteria deviation as, parent (1) other amounts financial resources available to a “that are not income, parent included in definition of but could net be used such meeting parent,” (2) for the benefit of the child or for the needs of the “[e]xtraordinary expenses child,” (3) for care and maintenance of the “[ejxtraordinary parental expenses . . . that are not considered allowable gross income, necessary parent deductions from but are for the satisfactory parental relationship child, to maintain a with the continue provide employment, parent’s needs,” (4) for the own medical “[n]eeds parent’s dependents parent may legally respon of a . . . other be [where] sible for the of individuals other than the whose being determined,” family support” (5) is of total when “[coordination assets, provision alimony involving considerations the division planning child,” tax “will not result in a lesser economic benefit to (6) “[s]pecial “equity,”including relating circumstances” to reasons of shared physical custody, extraordinary parental disparity income, the best inter equitable ests of the child and factors. “[o]ther” Arrearage Support Child interpretation. in their i. The p. preamble preamble, (a), (2005), Guidelines purpose primary states an procedures establishing provide uniform “[t]o id., p. children”; (c) (1), § adequate of level equitable ensuring awards more ii; and make “[t]o in similar circum- persons of consistent treatment explains that p. preamble ii. The Id., (2), (c)§ stances.” of applicable range extended the the commission with a combined to include families schedule in 2005 increase from the weekly up $4000, of an net income $2500 contained in weekly income limit of combined net consistency set- promote “to in the schedule, 1999 by taking at all income levels” of orders ting costs child-rearing of more recent data on advantage Id., p. vi. (e) (6), income families. higher § that included explains guidelines that the are preamble The further which considers model, on income shares based parents “presumes both that the income of proportion parental the same of child should receive if parents as she would have received income he or Id., ii. Children’s economic together.” (d), p. § lived automatically, do with an however, needs not increase parents may Although increase in household income. children in absolute dollars as spend more on their thus child’s their income station grows, raising of the income shares model reflects the living, standard percentage on children as a principle spending actually family household declines as income income specifically notes that “economic preamble rises. found that on children declines spending studies have family as proportion as a income income family increases, portion and a diminishing Id., see spent (d), p. iii; on each additional child.” Carneiro, also Gentile App. Conn. 630, 648, A.2d 871 are based on the (“[t]he (2008) pays net income premise parent high that a with a lower percentage his income for as compared to an obligor with a lower net income”). The preamble suggests that spending because declines “families at higher income levels do not have to devote most or all of their perceived incomes to necessities. Rather, they can allocate some proportion of income to savings and other [nonconsumption] expenditures, as well as discretionary goods.” adult Support Child and Arrearage Guidelines (2005), preamble, (e) (4) (A), p. iv; see also Ford v. Ford, 600 A.2d 25, 30 (Del. 1991) (“When the income of an individual is substantial, he or she will use a smaller percentage of that income to maintain a certain standard of compared living an individual with less income. This is because, outside of unusually extravagant lifestyles, only a limited sum spent can be on a standard of At living. point some income is directed less and less towards ‘needs’ and more and more towards savings or investments and part thus becomes of an individual’s estate.”); In re Marriage Bush, App. 191 Ill. 249, 261, 3d 547 N.E.2d 590 (1989) (“A income large necessarily does not trigger an extravagant [lifestyle] or the accumulation of a trust fund. A in large increase income will necessarily in equal result an change one’s [lifestyle]. There are other options rational for an individual with a large just income than conspicuous consumption. The wealthy person may prefer personal frugality, or the enrichment of others through charitable giving, or sim ply deferring income through tax-delay investments, order to build an appeal estate.”), denied, 129 Ill. 2d 561, 550 N.E.2d 553 (1990). the Consequently, guidelines, like those that came before them, “incorpo rate declining percentages at all levels of combined net weekly income . . . consistent with the income shares model . . . .” Support Child and Arrearage Guidelines (2005), preamble, (e) p. iv. (4) (B), § sum, applicable the statutes, as well as the guide- lines, provide that all support awards must be established principles with the made in accordance promote “equity,” that such awards therein to ensure “at for children all “uniformity” “consistency” and Id., (1) added.) (c) (Emphasis § income levels.” vi. 46b-84 p. § General Statutes (2), p. ii; id., (e) (6), various that courts shall consider specifically instructs child in determining and needs of the characteristics support amount of required, is the whether parents respective abilities of the be awarded guidelines grant provide support. Although such “case-by-case” on a discretion to make awards courts family at prescribed for a basis above amount upper limit of the schedule when combined net limit, which weekly parents income of the exceeds that presently $4000; Conn. State 46b- Regs., Agencies (2); 215a-2b also indicate such (a) principle expressly should acknowl- awards follow preamble edged reflected the schedule support obligation percentage that the child as weekly combined net income should decline Thus, level an award of child income rises. $8000 weekly net income based on a combined must governed by principles be the same govern weekly on a combined net award based even the does not fall within $4000, though former Finally, may, the courts although schedule. guidelines’ discretion, in exercise of their determine the correct the weekly of the combined net income percentage of the support light to child circumstances assigned particular case, a consideration of including each other, imposed additional on the noncusto- obligations any or parent, dial deviation from the schedule the on the are must principles guidelines based be why accompanied explanation the court’s as to why e guidelines inequitable inappropriate ar necessary deviation is to meet the needs of the child.8 See also General Statutes 46b-84 (d). §

B Amount of Award Under the schedule, required support payment for two children declines from percent 35.99 when the weekly combined net family $310 income of the is percent 15.89 when the weekly combined net family $4000. is Regs., Conn. State Agencies 46b- § 215a-2b (f). Consequently, support payment for two children under guidelines should presumptively not exceed percent 15.89 when the combined weekly net income of family exceeds $4000, and, in most cases, should reflect less than that amount. present case, the trial court first awarded the $636

plaintiff per week, the amount designated in the schedule when there are two children and the combined weekly $4000 net family income of the per week. The court, however, plaintiff also awarded the percent of the defendant’s annual net cash bonus, which has years varied recent $489,449.50 $1.368 from mil- lion. See footnote 4 of opinion. this This translates into an increase in support child of approximately $1882 to $5261 per week, or three to eight times more than the base award. If the defendant’s bonus reaches such lev- els in years, future total child payment guidelines We note that the relevant statutes and are consistent with regulations require adopt federal guidelines. the states to instance, (a) provides: For 13, 1989, 45 C.F.R. 302.56 “Effective October approval plan, as a condition of of its shall establish one [s]tate [s]tate guidelines by by judicial set of setting law or or administrative action for modifying [sjtate.” award amounts within the There is depart no adopted allowance in 302.56 for states to from their requirements high and deviation income cases. See id. We also note that potential there would be case, constitutional if concerns this were not the implicating equal protection process both rights party and due of the paying support. $130,000 $306,000 per to approximately will increase to per $5900 $2500 to week. year, approximately of permit the consideration Although weekly family’s combined a calculating bonuses when 46b-215a-l Agencies income; §§ net Conn. State Regs., open-ended an (c) (1) 46b-215a-2b (iii) (B); (11) (A) than 15.89 percent, award of 20 rather support child bonus vio- less, of the defendant’s variable percent or a declining percentage principles lates the guideline be awarded family net income should of the combined of level and that the percentage as the income rises should be any future bonus allocated child (c) (1) (B) (ii); 46b-215a-2b “generally consistent”; id., § in in the schedule percentages with the established in uniformity equity consistency, order to ensure See persons of in such circumstances.9 treatment any that, award the trial “did not dissent states because supplemental support,” it is annual stock bonus as defendant’s family percentage possible total net income “to determine the exact inexplicably support.” that is for child The dissent nonetheless ordered any stock has material value concludes that “if the defendant’s annual bonus all, supplemental by the trial court would at then the ordered likely percent family .’’(Empha income . . . be less than 15.89 of total net added.) logic This both and common sense. Without valuation sis defies options impossible say percentage stock, what and restricted it to possibly family paid of total will be as child and one cannot income likely conclude, opinion, dissenting does the that it would be less than unlikely percent. 15.89 we do that it is that there was much What know is options value at all and restricted stock. to why explain Although it allocate the trial court did not did not the defen- support, award, making dant’s stock bonus as when the child future provides We that the review ofthe record several clues. first note defendant’s bonuses, paid previously stock some of would be awarded out subject equitable Thus, years, future were the court’s distribution order. may they because, require payment portion of a these not be counted “double-dipping.” would bonuses when received the defendant result important that, order, time of It is also to note at the the dissolution years children were thirteen old. The defendant received a bonus each January performed year. Accordingly, preceding for work first time expected following have the defendant would been receive a bonus January, indicate the divorce was 2007. Exhibits filed at trial that the past options stock bonuses had defendant’s consisted restricted options to the stock. The exhibits also indicate that the awarded defendant

id., (6), 46b-215a-l (c) §§ 46b-215a-2b and (1) (B) (f); see January, 2003, immediately after did not vest but became exercisable at a percent year per anniversary Similarly, rate of 25 on the date of the award. restricted stock awarded to the defendant did become vested and years released until four after the date of the award. The trial court made findings regarding no factual the division of the defendant’s stock bonus options jurisdictions concluded, between and restricted stock. Other have however, gross that stock awards in divorce cases are not included in purpose alimony making they for the of and child orders until vest may See, Murray e.g., Murray, App. 662, be exercised. v. 128 Ohio 3d 670, (App.), appeal denied, 1499, 716 N.E.2d 288 85 Ohio St. 3d 710 N.E.2d (1999); Thiel, 328, 333, (App. 2001); 718 Robinson v. Ariz. 35 P.3d 89 Marriage of Cheriton, App. 269, 288, Rptr. 755, In re 92 Cal. 4th 111 Cal. 2d denied, (2001). principle, review 2001 Cal. LEXIS 8989 Mindful of this we may deduce, past defendant, on the basis of stock bonuses awarded to the any January, 2007, restricted stock awarded in would not become vested January, 2011, any options granted January, and exercisable until and that in 2007, percent year Extrapolating would vest at a rate of 25 each thereafter. data, any January, 2007, from this restricted stock bonus issued would not be exercisable and considered income until the children were seventeen years any old, and one-half restricted stock bonus awarded thereafter would not become exercisable and considered income until after the children age majority July, addition, only reached the of 2011. In some of the stock options part awarded to the defendant as of his bonus would be exercisable majority. age considered income before the children reached the of Furthermore, options only the stock would be considered income if the price option stock during succeeding increased above the value four years. Finan, App. 297, n.4, See Finan v. (2007) 100 Conn. 918 A.2d 910 (when price option, option market value of stock sinks below exercise of quotation has no value or is “under water” omitted]), [internal marks rev’d grounds, 491, (2008). Consequently, on other 287 Conn. 949 A.2d 468 it is why findings regarding understandable the trial court made no factual why defendant’s future stock bonus awards and it did not include such support. awards in its regarding calculations of child The lack of information how the defendant’s future stock bonus would be divided between restricted options, required lengthy past stock and types stock time in the for both exercisable, uncertainty of stock to vest and become of the future value options only years of the stock and the fact that the children were a few majority age monetary short of the at the time of the divorce rendered the any value future stock bonus awarded to the defendant before the children age majority and, reached the unknowable to the extent that it could be known, likely insignificant comparison most to the defendant’s net cash Accordingly, likely bonus award. the trial court concluded that the defen dant’s annual stock bonus award would have had little effect on the defen gross years remaining dant’s income for the five before the children reached age majority. (“The 244 Conn. 357-58 McNary, supra, Unkelbach aim guidelines allocations contained percentage on spent of income proportions average to reflect the family various income and in households of children incorpo- is that the sizes .... result parents and resources between rate an allocation of appro- has decided the children that the legislature interpretation of our Consequently, priate allocation. preserve seek to this allocation.” the must guidelines emphasis An increase omitted; added.]). [Citation high award at the over the minimum magnitude this sched- as established the spectrum, end of the income trial ule, questions regarding the also raises serious with to be inconsistent appears court’s rationale and needs of to consider the actual statutory the mandate 46b-84 (d). the children. See General Statutes C Application of Deviation Criteria for explained deviating its reasons The trial court from the substantial the guidelines “[defendant’s] superior capacity, . . the earning assets . [and] extraordinary income and the disparity parental sig- [plaintiff] including, nificant and essential needs of the for provide limited the to a home the to, but not need if the downplay significance children.” As it deviation, court further noted that had not consid- the yearly compensation, ered the defendant’s noncash options stock and restricted stock the consisting of $530,000 year pro- 2005. The court amount reasons, however, no for its decision. We vided other ostensibly that, although applied conclude the court plaintiff percent, awarding deviation criteria percent less, than 15.89 or of the defendant’s rather bonus, apply it and annual net cash did not understand preserve correctly, failing the criteria thus the alloca- parents tion and children author- of resources between ized legislature under the relevant statutes by established commission. See General Statutes 46b-215a and 46b-215b. §§ narrowly are deviation criteria defined and require the court to make a finding on record as why inequitable are inappropriate. present case, the court did not make such a finding. The court also misconstrued the deviation criteria. The open-ended court’s first reason for large, award bonus was the defendant’s “substantial assets” “superior capacity . . . earning .” This rationale appears to have been criteria, drawn from the first permits court to consider financial “[o]ther parent resources available to a as substantial [such assets . superior earning capacity] . . that are income, included in the definition of net but could be parent used the for the benefit the of child or parent.” meeting the needs of the Conn. Regs., State Agencies 46b-215a-3 see (b) (1); id., also 46b-215a- § § (b) (1) (A) (B). 3 and The defendant’s annual net cash bonus, however, is not another “available” financial resource under the first criteria because bonuses are included in net Id., the definition of income. 46b-215a- § 1 (11) (A) Thus, and was not (iii) (17). permit- court to ted consider the defendant’s “substantial assets” and “superior to earning capacity” justify the additional award derived from annual his bonus. even if Furthermore, bonuses were not included in the definition of “net and guidelines’ income” could have been considered another “available” resource, financial the court how an explain did increase in the level percent of 15.89 or more of defendant’s bonus would have benefited the children or met the plaintiff, especially needs of the light yearly changes family in bonus income unrelated to circum- Indeed, it that appears parties placed stances. much extraordinary of the defendant’s income during their had that and investment accounts marriage savings into See Child daily living. their standard little effect on preamble, (2005), Guidelines Support Arrearage and families devote more p. iv income (4) (higher (e) (A), expenditures nonconsumption savings, to other income Ford Ford, supra, discretionary adult goods); less spend less and income families (higher A.2d “ ” into put savings more and more on ‘needs’ prop- Finally, plaintiffs share investments). than considerably greater was erty distribution award particularly respect with cash defendant’s, liquid Thus, assets. the extent readily accessible other substantial assets after parties both were left with could not property division, the defendant’s assets depar- a sufficient for the court’s provided ground have from guidelines. ture extraordinary dispar-

The court next referred “the was apparently . . . .” The parental ity criteria, disparity in which income relying on the sixth “[sjpecial permit circumstances is one several Conn. State departure guidelines. Regs., from the may be disparity Income (b) (6). 46b-215a-3 Agencies § parent when the custodial however, only considered, presump- income and deviation from higher has lower income support amount “would enhance the tive relationship ability to foster a parent’s [noncustodial] . Id., (b) (6) (i). . . .” 46b-215a-3 (B) with pro- intended to unambiguously This consideration is parent where the noncustodial circumstances tect parent far exceeds the income of the custodial the pay support, to parent obligated of the income Thus, is the case here. the court’s consider- not the sixth deviation crite- disparity ation of income under improper. ria was from final reason for departing

The court’s third and essential needs “significant was the the to, the need [plaintiff] including, the but limited of 102 provide

to a home for the children.” An made award satisfy to the needs of the [plaintiff]” “essential improper, however, support awards, by because child definition, must benefit the or rela children foster their tionship parents. to their See General Statutes 46b- § Any plaintiffs 84 of the (d). consideration needs thus alimony the fashioning must be restricted to of an award General justify under Statutes 46b-8210 cannot a § from guidelines. addition, deviation the In the court specific no how finding open-ended made an regarding award foster children, bonus would the needs of the explain why nor did the court the whom it plaintiff, to had in the significant awarded assets form of a mortgage $7 house, approximately free million in liquid assets percent and 20 of the defendant’s net cash bonus as alimony, required provide additional “to a funds home 11 for the children.”* The court apparently also failed to (a) provides part: determining General Statutes relevant 46b-82 “In alimony awarded, whether shall be and the duration of and amount the award, length marriage, the court shall . . . consider of the the causes annulment, legal separation, marriage age, dissolution health, station, occupation, income, skills, amount and sources vocational employability, parties award, any, estate and needs each of the and the if may pursuant 46b-81, and, which the court make to section in the case of parent custody awarded, to whom the of minor children has been desirability parent’s securing employment.” of such present case, lacking any The trial court’s in the award addition to explicit justification children, on based the reasonable needs of the also ignored statutory that, subsequent dissolution, parents to a mandate “the marriage, .of . . minor of the shall maintain the children] child[ren] according respective (Emphasis added.) to their abilities . . . .” General respect, preamble (a). guidelines provides § 46b-84 to Statutes this part: emphasizes obligation in relevant commission it is the “[T]he parents both to the contribute of their children to the extent of ability spending designated support payments .... their In addition to child, parent receiving payments expend obligated on the such remains portion personal of his or her on the own income child’s behalf.” Child Support Arrearage (2005), preamble, p. (e) (1), Guidelines iv. In this case, however, apparently gave the trial no consideration the sub plaintiff stantial assets and investment of the or the substantial alimony plaintiff award that the stands to receive in of her the form percent fashioning annual share defendant’s bonus in the child Thus, obligations expected of the defendant. the court must have that the was awarded that, because defendant consider per custody approximately physical of the children respect plaintiffs needs with time, cent of the correspond the children would be providing home for ingly diminished. it had con- addition, the court stated that although provide statutory criteria, it failed to

sidered all of the for of any explicit justification the award bonus nonfinancial needs was related to the financial or that the children under General Statutes or characteristics of of the child’s requires which consideration (d), § 46b-84 occupation, educational status and “age, health, station, income, of vocational expectation, amount and sources . .” In fact, estate needs . . skills, employability, anything considered is no evidence that there capacity and earning than the defendant’s income other Thus, a find- support the child award. absent making used for to how the additional funds would be ing as how the award was the benefit the children and in 46b-84 we con- (d), related to the factors identified that the its discretion. legitimate clude court exceeded Indeed, explain approximately we are at a loss to how $360 $840 which is every single day year, plaintiff amount would receive income based if the defendant earned an annual net $1.368 $490,000 million, seriously cash bonus of can when justified, especially be the costs the children’s health will education, care extracurricular activities solely plaintiff be paid by the defendant and out of the child award. plurality

The dissent the focus argues “physical on needs the children” and this plaintiff spend nothing would on of the children or that she spend substantially case, would similar amount as the defendant. In either only guidelines, with the award is not inconsistent the relevant statutes and totally ignores model, but shares the basis the income serves as guidelines.

opinion the ‘new “ignores wave’ of cases that recognizes the significance of the standard of living of children parents.” of affluent We disagree. We recognize children in high income families are accustomed to a more lifestyle affluent that should be maintained to the reasonably extent possible. Indeed, 46b-84 mandates that the court consider factors such as the occupation, station, capacity earning and amount and sources of parents income of the as well as the age, health, station, educational status, expectation, estate and needs of the child. Section 46b-215b (a), provides however, that the guideline principles must be considered “all determi- nations of child amounts . . . .” Accordingly, the trial court should not have discretion unfettered high cases to make lavish awards appear to be unrelated both to the needs of the children, even after their considering station, and to 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 pro- failure to any justification vide relating to the characteristics and needs of the children when the granted the award of bonus income. The court made no findings regarding how much family’s disposable income before the divorce spent had been on the children justify such an award and apparently did not consider that it already had (1) granted the physical defendant custody and responsibility for the children percent of the time, minion (2) plaintiff awarded the $2.55 the mortgage free marital $8 home and more than million cash and accounts, investment and (3) ordered the defendant pay all of the private children’s school tuition, medical and dental insurance, medical, unreimbursed dental, optical orthodontia, and psychological expenses and all camp summer activity extracurricular expenses. Thus, it is why difficult to understand the court made any findings net cash bonus award absent such a high by, it needed in the that was or evidence record spent on, would be the children. awards of unrestrained effect that transfers potential cases windfall

high income spouse or from one spouse one to another wealth from In support. of child guise to the children under the percent the defendant’s present case, the award of 20 of any justification annual bonus without indeterminate or needs of children to the characteristics relating alimony” this court closely “disguise resembles the [d] Brown, 345, 349, Conn. of in Brown v. 190 disapproved (1983). 460 1287 A.2d expenses plaintiffs weekly Brown, household $340.23. nonethe- Id., 348. trial court

amounted to pay per $325 week in to less ordered defendant medical insur- support, maintaining addition to of unreim- paying percent ance and the child’s expenses. On we concluded appeal, bursed medical Id. was it improper that the child award because disproportionate to the needs.” Id., was child’s “grossly must “[cjhild 349. that orders be Recognizing . statutory based criteria enumerated in . . on the needs important 46b-84 of which the most is the may we held child,” “support award[s] disguise alimony be used to awards to the custodial v. parent.” Id.; Loughlin Loughlin, see also 280 Conn. 632, 655-56, (2006) (alimony A.2d 963 purposes and one must not be serve distinct improper payment used to increased disguise other). similarly Other courts have noted that “guidelines used limitation unrealistic without are percentages parents unfair when both have substantial incomes. ability . parent pay large . . When a an amount has the determination of child’s needs can be support, any required pay, but all should generous, parent be ability, of his or her is a fair share of the regardless amount actually necessary to maintain the child in a reasonable standard of living. Court-ordered support is reasonably more than needed for the child becomes, fact, alimony.” (Citations omitted; [tax free] Kalter, Kalter v. emphasis added.) App. 155 Mich. 99, 104, 399 N.W.2d 455 appeal leave to (1986), denied, 428 (1987); Rodriguez Rodriguez, 834 S.W.2d Mich. 862 v.

369, 372 (Tex. App. 1992) (“[a]n award of child support above the guidelines without regard solely needs and because the obligor great has income would amount to de facto alimony”), rev’d on other grounds, 860 S.W.2d 414 (Tex. Williams, Williams accord 1993); 261 N.C. 48, 58, 134 S.E.2d 227 (1964) (“[i]t purpose never the of a support order to divide the parent’s] [noncustodial wealth or to distribute his estate”). Consequently, trial court’s discretion must be informed careful consideration guideline principles to lessen the risk improper of support awards in high income cases.

We therefore that, conclude when a family’s com- weekly bined net income exceeds $4000, the court should treat the set percentage forth the schedule at the highest income level as the presumptive ceiling on the child support subject obligation, to rebuttal application of the deviation criteria enumerated in the guidelines, as well statutory as the factors described in 46b-84 (d). Additionally, when there is a proven, rou- tine consistency in annual income, bonus as when a bonus is based on an established of a percentage party’s steady income, an additional award support of child represents a percentage of the net cash bonus also may be appropriate justified by if the needs of the child. When there is a history wildly fluctuating bonuses, however, or a expectation reasonable future will vary bonuses substantially, present as in the case, an award based on a fixed percentage of the net cash impermissible bonus is unless it can be linked to the child’s characteristics and demonstrated needs.

107 to the basic supplement whether determining In also income, the court with bonus support obligation custody sched- property division must consider the obligations any well as additional ule as parent education, on noncustodial imposed matters. and other care, recreation, insurance health separate orders case, court entered present medi- pay all of the children’s the defendant requiring expenses as as all expenses well cal and health related day camp and extra- “summer to the children’s relating cover activities,” presumably would curricular of affluent fami- many which children of the luxuries to be expect would to maintained lies are accustomed and by separate a When not covered following divorce. infinite, and expenses are not orders, however, such likely represent percentage a uniform thus are not income, regardless a variable bonus defendant’s Marriage any year. See given the income level P.2d Edwards, 913, 918-19, (1983) 99 Wash. 2d percentage of income award open-ended (“[A]n may necessarily relate the child’s needs. concept on the needed. In fashion- Thus, limitation awards, trial should determine a ing judge such support that be rea- maximum amount of child would and set that amount sonable needed in future support payments cannot ceiling above which Div. Harmon, App. see 2d rise.”); also Harmon blindly 98, 111, (“[T]o apply 578 N.Y.S.2d 897 (1992) statutory parties’ to the aggregate formula provided for in the with- guidelines] over maximum [the express evidence of the any findings out record an child’s actual needs would constitute both abdication responsibility trespass upon judicial of the parents [lifestyle] to make choices their right support in accordance Although children. entitled to partner a child is preseparation standard, with the not relationship, ‘piece to a in the marital entitled action.’ ”).

108 emphasize

We that trial courts remain free to exercise in appropriate their discretion child determining support light particular award in circumstances of case. As [parties’] each one court has stated: “When the adjusted combined income gross upper- exceeds the . schedule, most limit of the . . child the amount of rationally awarded must relate the reason- necessary child, able and needs of the into taking lifestyle account the to which the was child accustomed enjoyed and the standard of living before the divorce, and must reasonably to the obligor’s relate ability pay for those needs. ... To avoid a finding appeal, of an abuse of discretion on a trial judg- court’s must satisfy prongs.” ment both quotation in internal omit- (Emphasis original; marks ted.) Burgett Burgett, So. 907, App. v. 995 2d 913 (Ala. we 2008). specifically do not this Although endorse approach applied Connecticut, as the standard to be in appeal it has an intuitive and is 46b- consistent with § (d) 84 it that suggests because the total child obligation be at a capped must sum some bearing rational to the relation “estate and needs of the child.” Battersby Battersby,

Relying 467, on 218 Conn. preamble 473, (1991), A.2d to the guide- lines, plaintiff that argues the trial court did percent abuse its discretion awarding the defen- support. dant’s net cash bonus She argues as child that the court’s discretion is limited in high cases by only the factors 46b-84, set forth and not justified guidelines, and that the award was present necessary case change avoid a dramatic in the children’s standard of living might result and psychological their emotional harm. A thorough Battersby preamble review of both and the to the guide- lines, however, indicates Moreover, otherwise. court’s other orders ensured there would be little or no in the standard of change living. children’s improperly conflates plaintiff the We first note that To therein. schedule contained and the guidelines the weekly income parties’ combined net the the extent that schedule, agree the we upper the limit of $4000, exceeds does cannot, and plaintiff that the schedule with the as the mandate except guidelines insofar not, apply, mean, does not support payment. This minimum child the principles that however, guideline that the inform uniformity consistency and schedule, including equity, circumstances; in similar persons in the treatment (2005), pream- Guidelines Support Arrearage Child apply p. ii.; do not continue to ble, (2), (c) (1) § merely parties’ the income exceeds the sched- because discussed, 46b-215b upper previously limit. As ule’s be in all guidelines “shall considered requires that amounts”; (emphasis determinations preamble, have been which, according added); on the basis of established the schedule on principle spending and reflect the shares model family income as proportion children declines as a Support Arrearage rise. Child Guide- income levels pp. ii-iii. preamble, (d), Accordingly, lines (2005), net when the combined ignored cannot be schedule, family upper income exceeds the limit applicable remain to all determinations of but support. Battersby also plaintiffs misguided reliance on out of context. In that language

because she takes its plaintiff weekly income exceeded case, the husband’s Battersby income level schedule. highest wife, Battersby, supra, 218 Conn. 468. The defendant parent couple’s who was the custodial for the two minor children, from trial court’s downward appealed top per- that the departure schedule, arguing from per- schedule, which at the time was centage applied to income. cent, plaintiffs higher should be 469, explained, however, 472-73. We that the trial Id., court properly employ had declined to the maximum percentage because “applying [g]uidelines [sched- in incomes excess of would be ule] [the maximum] inequitable because the statistical basis for the [sched- validity loses disposable its as the income of the ule] family that increases; is, the proportion household spent income on children declines as household income Id., increases.” 473. We therefore endorsed the trial court’s rationale, that, “while a explaining family earn- ing weekly maximum combined may net [the income] spend 44 percent of its supporting children, income two family earning considerably weekly greater income [a than the maximum established in the ordi- schedule] narily spends a lower purpose Since the percentage. a child order provide is to for the care and equalize and not to well-being of minor children, available income parents, divorced the trial court had authority reject the defendant’s suggested extrapolation guidelines’ percentage inappro- priate and in inequitable the circumstances before it.” (Emphasis Id. added.)

We did not completely nonetheless endorse a ad hoc approach to higher income awards, but noted approval with that trial had “considered the [guidelines, found the inapplicable for arriv- [schedule] ing at a presumptive support amount, and considered the statutory criteria [g]uideline other in factors arriving at its (Emphasis decision.” added.) Id., 472. Accordingly, Battersby implicitly bars use of per- than centages greater provided the highest for in the schedule when determining appropriate child support obligations in higher income cases and instructs, first, plaintiff that present case incorrect concluding inapplicable are to high cases, and, second, application that the of a greater than the percentage provided maximum in the questionable schedule is highly and must at least be factors . . . .” Id. justified [guideline “other point misses the crucial short, plaintiffs argument actually her view that the Battersby contradicts present proper. in the case was award Battersby recently applied by Our was reasoning Appellate Carneiro, supra, Court Gentile App. alia, inter that the trial 630, held, Conn. improperly pay court had ordered the defendant “to an excessive of his future commissions percentage as supplemental support.” Id., Gentile, 644. In the court explained supplemental first that a order a mandating payment lump based on a of future sum percentage income must be consistent with the “generally guide schedule”; Support lines’ Child Guidelines Arrearage preamble, p. ix; (2005), (g) (6), this occurs payment] that, whole, “when is of a as a percentage [the harmony is in with the schedule”; Cameiro, Gentile v. supra, 644; parent’s per for a declining “account[s] centage accompanies an obligation in Id., increase income.” 648. Recognizing that such may future income cause the income to obligor’s exceed of the range schedule, the court established a gen principle eral policy based on the economic underlying supplemental that “a support order must account for relationship the schedule’s inverse between parent’s weekly support net income and his obligation, while also in accounting those instances which a payment future of unknown amount exceeds the range Id., Appellate of the schedule.” 649. The Court found supplemental that the in “excessively award Gentile burdened the defendant . . . matter [because] [n]o what the actual value of the defendant’s future commis always he will sion, pay be obligated higher than percentage what the schedule mandates.” Id., Thus, 650. the case was remanded so that the trial supplemental court could “craft a requires order that pay defendant to a declining percentage supple- lump payment sum future support as the mental in instances for those accounting while also increases range exceeds the lump payment sum the future in order the court’s percentages of the schedule. by the schedule.” utilized range be within should Gentile, by the court rationale articulated Id. The reasoning more than a restatement which is no applicable even cases expressed guidelines, maximum exceeds the family’s net income in which a approve of We therefore in the schedule. established and conclude that and Gentile analysis Battersby consisten[cy]” requirement “general guidelines’ Sup- support awards. Child to all child applied must be preamble, (g) Arrearage (2005), Guidelines port p. ix. (6), concern that the chil- respect plaintiffs to the

With change because of a emotional harm may dren suffer we reiterate that the living, in their standard $8.1 mil- $10.65 of which million, plaintiff awarded the accounts, parties’ the and investment lion was in cash alimony home and $2.55 million marital free mortgage of the per plus percent $1215 week 20 amount of the percent of cash bonus and 20 annual net defendant’s may Addi- receive. any tax refund the defendant future compre- provide defendant was ordered tionally, the at plaintiff for the insurance benefits hensive medical lawby allowed period the maximum expense his for policy in favor of the a life insurance and to obtain $2 He also was ordered amount of million. plaintiff the school private children’s percent 100 pay and “all work they complete high school until tuition day camp expenses and summer day related care pay and to “maintain and activities,” extracurricular the benefit of the insurance for medical and dental all of all unreimbursed percent . . . 100 children [and] orthodontia, optical psychological medical, dental, open for a future court also left door expenses.” The payment of the children’s regarding college order expenses. appear it does not Accordingly, financial orders will cause the court’s children to suffer a in their standard of significant change living, and, noted elsewhere in this opinion, award would not survive if only applied review even test was based on the factors set forth in 46b-84 (d).

As we have previously, stated do not guidelines apply permit cease to trial courts unlimited discre- tion in setting merely awards because the particular family income of a exceeds some talismanic number court, on chart. Neither this nor the trial court, is at liberty, particular family enjoys where a relatively income, high disregard significant progress sup- that has been made in standardizing child port awards since the advent of the guidelines. See U.S.C. 667 (b) (2) (1988). Removing consideration from child deprives decisions consistency income families of the high fairness and the guidelines require appellate and leaves the trial and courts adrift, principles unanchored to the core within guide support awards in cases falling guide- lines’ schedule. We therefore conclude that the trial its plaintiff abused discretion in awarding percent of the defendant’s annual net cash bonus support.

In his concurrence, Justice Schaller claims that the plurality incorrectly elevates the child guide- lines to “controlling authority” cases in parties’ weekly combined net upper exceeds the limit of the schedule, thus on trial infringing courts’ broad discretion to determine child in awards such cases on the statutory authority basis of alone, by “unfettered” principles the strict of the guidelines except as a factor to be “considered.” We disagree. The concurrence misconstrues decision, our which does not rely solely on the but guidelines, significant takes statutory authority applicable on

account of are based. The concurrence also fails to guidelines that, promul- in a commission to recognize establishing update support guidelines, sub- and gate regularly to ject approval, legislature intended legislative judicial traditionally limit the courts’ broad discretion matters. in child history is guidelines’ legislative of the Knowledge why they judi- limit understanding essential in how subject previously we addressed discretion, cial Vargas, 699, 707-708, in Conn. 610 A.2d Favrow ini- legislature but review here. The again (1992), tially courts establishing guidelines considered assist when 1984, it enacted proceedings dissolution The Special 1984, Id., special No. 84-74. 707. act Acts pilot had the first to establish being programs two goals, judicial in two for mediation concilia- districts disputes arising marriage proceed- tion of dissolution appoint second an ings, being inter-agency and the develop family guidelines commission to by family use relations counselors in the selected dis- tricts. Id. time developed at were guidelines family judicial to limit discretion entering

intended support orders, Id., but to be flexible and nondirective. end, specifically 708. To the commission recom- this they by family be used relations mended that counselors part process. Id., as mediation 710. In an adden- however, dum to media- report, the commission’s special under act appointed tors “recommended formally incorporated be guide- that the in the adjudication lines to be considered judges quotation marks family support matters.” (Internal Id. omitted.) the issue enacted 1985, legislature

hi revisited 85-548), No. “An 1985, (P.A. Public Acts 85-548 entitled Enforce- Support Federal Child Implementing Act act Section 8 1984.” Id. ment Amendments develop guide- “to commission a second established support January 1987, for child 1, later than lines, not shall guidelines Such within the state. amounts award and other upon judges binding not but be available support child determine power to who have the officials marks quotation internal added; (Emphasis awards.” speci- P.A. 85-548 although Thus, 710-11. Id., omitted.) sup- address would new guidelines fied that the family from their use expanded port awards also the act courts, counselors relations that the practice, guide- past with consistent explained, 711. binding. Id., intended to be were not lines issue once considered 1989, legislature entitled, 1989, 89-203, No. Public Acts and enacted again Id. Sec- Support Guidelines.” Child Concerning “An Act “to a third commission established 1 of the act tion pursu- promulgated support guidelines review the criteria 85-548 ... establish 8 of ant [§] [P.A.] appro- to ensure the of guidelines the establishment ... to issue awards and of child priateness January 1, 1991 and later than updated guidelines marks quotation thereafter.” every years (Internal four now codified 1 ofthe act is 711-12. Section omitted.) Id., as 46b- 2 and 3 are now codified 46b-215a and §§ as § Id., 712. 215b. made four Favrow, (a) 46b-215b

As we noted guidelines in the child changes significant flexible and nondirec- “displac[ing] had the effect Id. added.) previously (Emphasis taken. approach” tive requirements (1) guide- included changes These “ determinations of child considered in all lines ‘shall be ”; added) (emphasis within the state’ support amounts “ presumption that shall be a rebuttable ‘there id.; (2) resulted from such awards which the amount of the amount of such application “ id.; to be ordered’ in order ‘to (3) presump- rebut the ” in case,’ tion such the court or magistrate must make “a ‘specific on the record finding application that the of the would guidelines inequitable inappropriate be aparticular in case’ ”; id., 712-13; specific such a (4) “ must be ‘determined finding under criteria established ” by the commission.’ 713. The Id., commission subse- quently new in promulgated guidelines response to the statutory mandate, describing deviation criteria in more detail and them to ensure expanding that child support orders would in be the best interests of the financially equitable child and parties. to the Id. In summarizing history, this we observed in Favrow that “the guidelines evolved from an experimental, intentionally nondirective and approach flexible to the imposition of standards that are presumptively binding on the magistrate, court or from which deviations would permitted only be in specific accordance with findings specific related to criteria established the commis- sion. Thus, the 1989 general, legislation and the ensu- work of ing substantially the commission circumscribes traditionally judicial broad discretion of the court support.” Id., matters of child 715. light history, we no foregoing longer may view trial courts as having broad discretion to make in high awards income cases, “unfettered” by guideline principles that, according Justice Schall- only er’s concurrence, need be “considered.” legis- The very lature in clear delegated authority terms to the commission to establish the guidelines purpose for the of ensuring that child awards are appropriate; General 46b-215a; Statutes and further § directed that “shall guidelines be considered all determinations of child amounts . . . .” (Emphasis added.) General Statutes (a). statutory 46b-215b The mandate to consider the cannot have a guidelines different mean- ing high family merely the context of a income upper exceeds joint parties’ because restricted are not guidelines of the schedule. limit prin- rules, “the include alone, but also to the schedule therein. contained worksheet” . . . and ciples 46b- Agencies § State Conn. Regs., added.) (Emphasis sup- define Moreover, 215a-l (5). “[c]hild obligation payment entire alia, inter “the as, award” port under as determined parent, noncustodial Id., 46b- added.) . . . .” (Emphasis . . guidelines . exception for an provision allows Neither 215a-l (6). income cases. in high to be made consider differ- the word Furthermore, to construe make sense when would not income cases ently high in judicial discre- is to limit purpose guidelines the more make awards support matters tion in child “[t]o per- treatment the consistent equitable ensuring Support Child in circumstances.” sons similar p. ii. preamble, (c) (2), (2005), § Guidelines Arrearage the commis- January, 1991, report In its final issued under the guidelines the latest promulgated sion that “have that the guidelines of 46b-215b noted mandate .... The order establish- quite well working been . . . and . . . expedited been process ment has consistent. Gener- support are more generally orders of thought and much more ally, litigation, there is less from the the reasons for deviation being given marks quotation omitted.) (Internal guidelines.” permit To supra, 222 Conn. 713. Vargas, Favrow v. in high to make awards unlimited discretion courts contrary to the directives con- would be income cases to the guidelines, statutes and tained in the relevant authority of the intent to circumscribe legislature’s legislature’s matters and to courts in child consistency in child equity and achieving stated goal support awards. also claims that concurrence, Justice Schaller

In his income cases constitutes high applying guidelines an inappropriate expansion regulatory authority. We disagree. follow statutory mandates closely subject and remain to legislative control through statutory requirement they updated every be years four and submitted to the standing legislative regulation review approval committee for and adoption. See General Statutes 46b-215c.

Insofar as Justice SchaUer relies on Battersby, he Battersby takes out language of context. Although in Battersby noted that the guidelines’ sched- ule provision contained no extrapolating per- centages award amounts therein to higher income levels, it also observed that several other factors in the guidelines were relevant determining amount. Battersby v. Battersby, supra, 218 Conn. 471- 72. The court thus that, concluded although the trial court had found the schedule inapplicable, properly it had considered “other [g]uideline factors” as well as statutory criteria at arriving Id., its decision. 472. Vargas, Favrow Furthermore, supra, Conn. 699, was decided after Battersby and, the issue in although Favrow did not involve a high income family, Favrow court clarified that the guidelines were intended to “substantially the tradition- [circumscribe] ally judicial broad discretion of the court in matters of child support.” Id., 715. Finally, when the Favrow case returned to this court in 1994, specifically we referred to authority (a) (1) guidelines, which provides that . . . guidelines shall be considered “[t]he in all determinations of child amounts within the state” and that “the guidelines consist of the Sched- ule of Basic Support Child Obligations as well as principles andprocedures set (Empha- [therein].” forth sis added; quotation internal marks omitted.) Favrow v. Vargas, 231 Conn. 1, 27, 647 A.2d 731 (1994).

Justice Schaller’s opinion concurring maintains that, having elevated the guidelines improperly to governing statutes the relevant consigns plurality authority, The agree. analysis. We do in its a minor role 46b-215a 46b-84 (d), statutes, principally §§ governing throughout at length addressed 46b-215b, have been and foundation as the we them analysis regard and our statutory satisfy the merely the guidelines, appropriate making the courts assisting mandate of has assertion this Accordingly, awards. child no merit.

II REFUND AWARD TAX court’s order the trial challenges also The defendant future tax any undetermined percent allocating addi- percent alimony and as additional refund specifically claims support. The defendant child tional subject manipulation, unworkable, that the order will lead to unintended planning tax will hinder his hypothetical scenarios describes various results. He addi- refund, and, therefore, result in such that could plain- to the alimony payments tional could by the court and that were not intended tiff that parties. between the proceedings lead to hostile improper was not responds that the order plaintiff The necessary the defendant discourage was because it to the amounts withholding his tax manipulating from defendant’s and adds that the disadvantage, plaintiffs any legal without basis. purely speculative and claim is only with improper order was conclude that the We support. payment of additional respect to the history procedural additional facts following The trial resolution of this claim. relevant to our are plaintiff pay defendant to the court ordered the that he any or federal tax refund percent of state any year for in which child as child receives any state and federal owed, percent and 20 any year in alimony tax refund that he receives alimony In response plaintiffs is owed. to the seeking order, motion further articulation of this explained plaintiff trial court that “the shall share in 20 percent any tax refund awarded the defendant relat- salary to over on his base or cash bonus. ing withholding of the court is to over with- discourage The intention by attempt of taxes the defendant in an holding support payments.” reduce his The defendant did not seek further clarification or articulation of the order. that,

We conclude insofar as the order allocated 20 tax; percent alimony, of the defendant’s refund as it improper. propose was not of the order was to by discourage withholding the over of taxes the defen- support payments applies only dant to reduce his if the defendant receives a tax refund for withholding necessary salary from his or more taxes than base cash implementa- We defendant that agree bonus. with the may prove tion of the order cumbersome and that the manipulation same result of tax could discouraging by simple, have been achieved direct order that the defendant not over withhold on his taxes or an order pay smaller, capped percentage that the defendant gross, pretax, supplemental of his cash bonus as alimony, thereby practical difficulties eliminating Nevertheless, inherent in the current order. we cannot say that the trial court abused its broad discretion in an entering conclude, however, such order. We further pertains insofar as the order to the defendant’s it is inconsistent with the obligation, must be for all of the guidelines and reversed reasons part opinion described in I of this the calcula- regarding support. tion of child

Ill DIVISION OF ASSETS third and final claim is The defendant’s trial improperly parties’ divided the marital assets. The specifically that, although defendant claims the court

121 or $10,650,719, valued at assets plaintiff awarded and the estate, marital percent of the 60 approximately approximately or $7,099,879, at assets valued defendant required will be to estate, he the marital percent 40 most of rates on ordinary at income tax pay pay will plaintiff received, whereas the assets he at more favor- she received for the assets income taxes The federal law. state and applicable rates under able value of the the actual contends that defendant thus than the value dramatically lower he received is assets disparity and, consequently, by court, indicated parties to the assets awarded the value of the between allocation that percent 60 to 40 than the larger is much that the responds plaintiff intended. The the trial court marital percent of the intend to award 60 court did not to the defendant. percent 40 plaintiff to the estate by tax effects ignoring cannot have erred Accordingly, it outcome. frustrate an unintended would allegedly plaintiff. We with the agree history procedural relevant facts following At the of this claim. necessary to our resolution are plaintiff awarded the dissolution, the court time of assets and the defendant $10,650,719 valued at assets decision, In its memorandum $7,099,879. valued at consid- had made the award after the court stated that it statutory set forth General criteria ering all 46b-81,13 Statutes § 46b-66a12 and General Statutes § entering provides: “(a) At time of a decree Statutes 46b-66a General legal separation pursuant dissolving marriage a annulling or or for may 46b-45, Superior complaint husband Court order the under section person. convey property party a third to real to the other or to or wife to title any party “(b) of the court entered is found to have violated an order When may, by decree, pass section, (a) title to of this the court under subsection any person, property party or a third without act the real to either proper party, judgment of the court it is the action take. either when in the “(c) on land records the town where When the decree is recorded situated, property the transfer of the title of such it shall effect the real party parties.” property if or it were a deed of entering provides: “(a) At the time of a decree Statutes 46b-81 General separation pursuant dissolving marriage legal annulling to a or for together applicable with the case law and the evidence presented by parties. subsequently the The defendant filed a motion for articulation the court to further asking explain: “Was it the court’s intention to divide the mari- by tal estate proportionately approximately distributing [percent] plaintiff [percent] 60 of its value to and 40 [the] of its value to defendant?” The court granted the [the] defendant’s motion and clarified its as fol- judgment any “The court particular percent- lows: did not ascribe in ages 12, marital estate its June 2006 . . .” memorandum of decision .

In v. Powers, 8, 10, Powers 186 Conn. 438 A.2d 846 (1982), may we observed that a trial court consider the consequences tax of its financial orders dissolution but actions, required did not address whether a court is Appellate Court, however, consider this factor. The repeatedly has stated that “neither statute nor case law requires that a impli- trial court consider the federal tax quotation cations of the financial awards.” (Internal complaint 46b-45, Superior may assign under section the Court to either any part all husband or wife or of the estate of the other. The court may pass property party person may title to real to either or to a third or property, any by order the sale of such real without act either the husband wife, judgment proper or the when of the court it is the mode to carry the decree into effect. conveyance pursuant “(b) A made to the decree shall vest title in the purchaser, persons and shall bind all entitled to life estates and remainder pursuant interests in the same manner as sale ordered the court to the provisions of section 52-500.When the decree is recorded on the land records property situated, in the town where the real it shall effect the transfer property party parties. of the title if of such real as it were a deed of the or “(c) fixing property, any, assigned, the nature and value of the if to be court, hearing witnesses, any, party, except after if of each provided 46b-51, (a) length in subsection of section shall consider the marriage, annulment, marriage the causes for the dissolution of the or legal separation, health, station, age, occupation, amount and sources income, skills, employability, estate, vocational liabilities and needs of parties opportunity acquisition each of the and the of each for future capital assets and income. The court shall also consider the contribution parties preservation acquisition, appreciation of each of respective value of their estates.”

123 747, App. 732, 48 Conn. Rolla, Rolla v. omitted.) marks 921, 717 A.2d cert. 245 Conn. 440, denied, A.2d App. 11 Conn. Hawkins, v. also Hawkins see (1998); Seaver, Seaver (1987); 526 A.2d 872 195, 197-98, 134, 521 A.2d 1053 App. (1987). Conn. that the defen- principle, this we conclude

Mindful of expressly articu- has merit. The court dant’s claim no any particular percentage that it had not ascribed lated to consider party. to either Its failure of the assets thus had no property division implications tax pro- the assets on intent to distribute alleged effect its plaintiff the and the defendant portionately between of Moreover, in light had no such intent. because it permitted, but that a trial court is holdings consistent of its implications the tax required, not consider failure to do so was orders, apparent the court’s respect to its ratio- improper. Finally, underlying with its the court stated in assets, nale for the division of of of it had all memorandum decision that considered statutory criteria, applicable law, case evidence the the Under 46b-81 including (c), 46b-66aand46b-81. §§ “the of presumed length court is to have considered for . . . the the causes the dissolution of marriage, the . . marriage health, station, occupation, . the age, income, skills, sources of amount and vocational of employability, estate, liabilities needs each opportunity acqui- the of each for future parties the capital and income ... well sition assets as] [as parties acquisition, of each of in the the contribution the respec- in their preservation appreciation or value of tive estates.” previously stated,

As we have “this court will not court orders trial court has disturb trial unless the no legal abused its discretion its have reason- findings quotation (Internal able basis in facts.” marks omit- v. Conn. 502. In ted.) Simms, supra, making Simms determination, every presump- this we allow reasonable in favor tion of the correctness of the trial court’s action. Bender v. Bender, supra, 258 Conn. 740. We will reverse a ruling if, exercising trial court’s its it discretion, Bor law. Borkowski applies standard of wrong kowski, supra, 228 Conn. 740. In case, although this trial court’s decision to give liquid most assets plaintiff illiquid and most of the to the assets may defendant appear unfair, applied the court proper legal principles. Furthermore, plaintiff was stay-at-home mother, early defendant was his height fifties and at the earning his capacity, percent was substantial, and 60 to 40 division assets did not favor overwhelmingly plaintiff. Accordingly, we cannot that the conclude court abused its parties’ broad discretion with dividing assets regard implications. out tax their

IV REMEDY previously “We have characterized the financial proceedings orders dissolution resembling mosaic, which all the financial components various carefully are with interwoven one another.” (Internal Finan, Finan quotation marks v. omitted.) 287 Conn. 509, 949 468 491, A.2d “when an (2008). Accordingly, a appellate court reverses trial court based judgment improper alimony, on an property distribution, child support award, appellate court’s remand typically authorizes the trial to reconsider all of finan- v. Smith, Smith orders.” 277, cial Conn. 752 265, 249 stated, however, A.2d 1023 We also have (1999). “[e]very improper order . . . necessarily does not merit a reconsideration of all of the trial financial court’s A orders. financial order is when severable it is not any way interdependent with other orders and is not improperly based on factor that is linked other to words, factors.” Id. In other an is if order severable “its

125 of other the correctness impropriety place does Lowe, 47 279; see Lowe v. Conn. question.” Id., orders in order (reversing 236 App. 354, 358, (1997) A.2d alimony support order); but postmajority upholding A.2d 997 Main, 670, 676, 555 Main v. App. 17 Conn. all upholding order but support child (reversing 809, 211 Conn. denied, cert. orders), financial remaining Zern, Zern App. 292, 15 Conn. (1989); 559 A.2d 1142 on division order 296-97, (reversing 544 A.2d (1988) alimony support child upholding of assets but orders). requiring financial

We orders conclude net of his annual cash pay percent defendant future percent any undetermined tax bonus and 20 alimony, support are severable from the refund child financial property division and other unrelated orders inextricably sup- child remaining but are linked to port comprehensive health insur- concerning orders ance, expenses, education, day unreimbursed medical care, camp summer and extracurricular activities. challenge those the defendant does not Although open-ended award of bonus income consti- orders, tuted child component support the total significant any Consequently, award. new determination child all will necessitate reconsideration of orders to ensure that the total award will be needs. sufficient to address children’s only respect is reversed with judgment orders the case remanded to the trial proceedings according law; court for further other judgment respects. is affirmed in all opinion McLACHLAN,Js., con- this NORCOTT curred.

SCHALLER,J., I with the concurring. Although agree is plurality opinion proper remedy that reversal this case, agree I cannot with the rationale offered to In particular, that result. I believe that plu- rality incorrectly presumed bases its decision on the authority arrearage guidelines pursuant established General (guidelines), to Statutes authority than on 46b-215a, statutory rather itself. I that, guidelines believe such one, above cases1 as this General 46b-84 (d) §§ Statutes and 46b-56 (c) govern applying pertinent trial courts’ discretion. statutes, simply are an additional guidelines factor that the trial are obligated courts to consider. would, preferable it be

Although course, present to a approach guide courts, unified to the trial I feel com- pelled to I separately clarify write what am convinced approach is the correct for trial courts to use in determining support guidelines awards in above cases. approach simply difference in is not a matter of choosing relatively equivalent A among alternatives. principle discretionary matter of is at stake —the trial authority plurality’s of the courts. The approach, by guidelines were elevating by created a —which commission for child guidelines (commission) set up by legislature controlling authority, —to statutory infringes upon authority trial courts to support. My approach determine accords the trial statutory courts their authority full exercise their discretion, “principles” unfettered the strict guidelines, except as factor that must be considered. my statutory As result of I conclude analysis, that the improper and, award was I would reverse accordingly, the trial their entirety court’s financial orders in remand the case further proceedings. 1By cases, guidelines” referring involving “above I am cases families weekly highest

whose combined net income exceeds the amount in the guidelines,” therefore, synonymous schedule. “Above with “above schedule.” supports the the rationale begin by reviewing

I this case. to the plurality’s judgment decision reverse no the leaves analysis, plurality its At the outset of reversal of the primary basis its doubt about the emphatically: “We trial stating of the court judgment correctly the trial court that, although conclude of 46b-84 and applicability § the acknowledged general improper was the child order guidelines, the statutory with criteria the because it was inconsistent guidelines.” the principles expressed in and with the though even the words, In other (Emphasis added.) the General precisely language trial court followed requires the trial Statutes 46b-215b (a), plurality the reverses the guidelines, consider strictly it did not adhere judgment trial court’s because I A part of its “principles” guidelines. to the of the from 46b- relevant opinion, reciting language §§ after guidelines, 46b-215b as well (d) (a), as preamble to the plurality guide- calls attention part “is not (preamble), acknowledges lines which it . of the . . .” regulations proceeds proper

The from plurality diverge pream- approach by various features discussing model, shares ble, reference to the income including from out-of-state cases. along lengthy quotations with my plurality and, view, then categorically asserts statutes, as support: sum, applicable without “In provide well that all guidelines, principles with the awards must be made in accordance promote therein ensure that such awards established ‘uniformity’ for children ‘at ‘consistency’ ‘equity,’ ” This asser- original.) all levels.’ (Emphasis applicable problematic conflating tion is because asserting joint their guidelines statutes with I fully that child authority Although agree is misleading. be made accordance with the awards must specifically statutes, 46b-84, relevant have no such effect in this situation. As controlling plurality the itself acknowledges, preamble the has no regulatory authority whatsoever guidelines the merely themselves are one factor that must be “consid- carefully ered” —that is ... “[thought] about [or into account”; Dictionary American of Heritage taken] the Ed. English Language in the of (3d 1992); making The plurality awards. overlooks the of the significance the legislature phrase fact that used the be “shall consid- ered”; General 46b-215b Statutes rather than (a); § “shall control” or “are thus controlling,” purposefully— authority and plainly limiting the guidelines — a factor for consideration. my plurality argues interpretation that of 46b- § employs statutory

215b two of man- (a) meanings the date to “consider” the This contention is guidelines. a based on of what I is misunderstanding believe the approach each trial must take court when fashioning Favrow a order. As this court recognized Vargas, 699, 222 Conn. 610 A.2d 1267 46b- 712, (1992), § 215b made the four (a) changes applica- to the following “ guidelines: tion of the the be con- (1) guidelines ‘shall in all sidered determinations amounts “ state’ ”; id.; within the ‘there shall be a rebuttable (2) presumption that the amount of such awards application resulted from the guidelines such is the amount ”; id.; to be ordered’ in order for (3) presumption particular the trial court to rebut this in a “ make case, ‘specific it must on the record that finding application inequitable the of the guidelines would be inappropriate’ ”; id., 712-13; specific and (4) such “ must be finding ‘determined under the criteria estab- ” Id., lished the commission.’ 713. step The first court, then, trial is to Such guidelines. consider will one consideration result of two conclusions, parents’ on depending whether the combined falls within the guidelines’ particu- schedule —either the or it does schedule guidelines’ case within lar falls schedule, guidelines’ falls within the not. If the case determining process in the court’s step the next presumption apply rebuttable is to support amount proper schedule provided amount guidelines, if above contrast, the case is amount. remaining applies (d) 46b-84 rather than Accordingly, the term steps in 46b-215b (a). three in cases that fall meaning the same “consider” has that are above and cases within guidelines.

Contrary “any devia- plurality’s to the assertion on the or which principles tion from the schedule the accompanied by the based must be guidelines are inequi- are explanation why as to the guidelines court’s neces- why and the deviation is inappropriate table the sary child,” to needs of guidelines meet the the in above controlling authority guidelines have no such Battersby Battersby, 467, 218 Conn. 470- situations. presumably 71, 590 A.2d 427 In an effort (1991). to the courts definite designed provide to trial more authority situa- presently guidelines than exists in above tions, expands authority the elevates the plurality and preamble guidelines and the to status that nor neither the the commission accom- legislature so, In it creates an unwarranted limitation plished. doing discretionary authority well as on trial courts’ equally expansion of the legislative an unwarranted authority. Moreover, it overlooks the regulatory existing authority unmistakably (d), of 46b-84 gives courts discretion to above guidelines trial determine considering support, subject the guidelines. part plurality applies I B of its opinion, preamble it has in the principles that discovered award in case guidelines to determine that the this improper principles. it fails those because to follow I princi- do not at this take issue with the Although time pies plurality that the has found and identified in the preamble, principles those open are more interpretation. than one plurality on goes evaluate the award this case application direct the guidelines respect and with to the deviation criteria, concluding that the court should treat the highest per- set centage out the guidelines’ schedule pre- as the sumptive ceiling on the child support allocation. Despite passing references to 46b-84 (d) and the need basis for support, plurality consistently treats the guidelines, and even the as if preamble, they were appli- cable and controlling authority.

The plurality claims to find support for its conclusion in our case law. Specifically, plurality reasons that Battersby instructs that the guidelines remain applica- ble above guidelines cases. In so concluding, 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 presumptive at a amount, and considered criteria and other statutory [gjuideline at its arriving decision.” (Empha- factors sis added.) Battersby v. Battersby, supra, 218 Conn. 472. plurality The reasons, that Battersby, therefore, through this endorsement of the trial court’s consider- ation of the guidelines, supports its conclusion that “ ” ‘other [gjuideline factors’ are relevant to the determi- nation of the in award above guidelines cases. I do not read Battersby as standing proposition for that and find by other statements the court persua- more sive—and more indicative —of the holding Battersby. in

In construing 46b-215b, Battersby stated: “The statute does not, despite . . . assertions to the contrary, require the trial courts to apply [guidelines to all determinations of .... requires only It that the trial court consider the [g]uidelines. Moreover, the [g]uidelines do not contain $750. of excess disposable income provisions for read into stat- the courts cannot ambiguity, . . . Absent clearly not are provisions that utes, by construction, . . . stated. to extrapolating higher provisions

“There are no for set percentages or award amounts income levels legislature [guidelines in the [schedule]. If forth provide such to had intended or commission for so. it have said extrapolation [schedule], could are statutoiy rules construction long-standing Two omissions may supply construction that a court not it that reasons simply appears good because in a statute con- . . . and that court must adding for them exist to whether it, as it finds without reference strue statute or be would have been could thinks the statute it . . . provisions. other by the inclusion of improved parties or the court think of what the Regardless inescapable fact provide, should [guidelines whose provisions parties no they contain for $750 provi- per promulgating week. task exceeds legislature lies with the to cover such a situation sions omitted; (Citations with the court.” commission, its not highly 469-71. This admonition is emphasis altered.) Id., attempts accomplish. what plurality relevant to Baltersby read bar the use Clearly, cannot be highest provided than the percentages greater See id. the schedule. plurality issue,

In its this concerning conclusion apply not guidelines that “the do cease asserts setting courts unlimited discretion peimit trial of a merely particu- the income support awards because on family taiismanic number a chart.” lar exceeds some apply I to the Indeed, dispute do they considered, guidelines’ be but the extent that must and apply principles guide- does the schedule one, such as this the controlling. lines are not cases do trial courts not have unlimited because discretion they by statutory bound authority, namely, are 46b- § course, 84. This does not trial mean, of that the courts progress are free to the disregard standardizing 46-84 Indeed, operates awards. to constrain trial in a courts manner consistent with the movement away approach” from “flexible nondirective by prior adoption taken courts to of 46b-215b. Vargas, Favrow v. 222 Conn. supra, 712. Given the statu tory factors and the guidelines, consideration of the hardly, plurality courts are contends, “adrift, to . . . principles” merely unanchored core because by their discretion is controlled than by statute rather guidelines. plurality’s The that “[Removing concern consider the guidelines ation of from child support decisions deprives high income families of the fairness consis tency guidelines require,” is a one. legitimate it may be Although guidelines desirable extend the principles criteria and perhaps the schedule— —and beyond present limits, pol income such matters of icy are for legislature consider, not the court. See Battersby Batter v. sby, supra, 218 Conn. (guidelines provisions contain no for extrapolating guidelines chart income higher indicating legislature and commis sion did not intend for extrapolation); such see also Vargas, Favrow 222 Conn. supra, function (not of trial court or this court to legislative countermand determination plurality regarding guidelines). unduly authority limits the statutory by of courts elevat ing authority of the guidelines relegating § 46b-84 to minor role order to correct what it perceives as a deficiency in the scheme. the legislature

Neither nor the has commission ruled out taking account, specified into nor they how should be taken into account in high cases, say they other than to must be “considered.”

133 that the current remains, however, guidelines’ fact or in the determination of does not assist schedule award presumption support for the provide a rebuttable result, our courts in situations. As guidelines above statutes, governing authority must look for to 46b- also 46b-56 particular, (d), (c) 46b-84 but § §§ General Statutes cases. See guidelines 215b above (c), for the establish- any proceeding 46b-215b (c) (“[i]n § . award, guide- . . support ment ... of a child to and not in lieu be in addition lines shall considered the criteria for such awards established [section] of [emphasis added]). 46b-84” defen- improperly trial court ordered the Whether the Maturo, 20 of his annual dant, pay percent Frank A. to support plaintiff, net Laura cash bonus as child to interpretation statutory Maturo, requires E. the regulations, and due consideration of scheme plenary review requires including guidelines, of review. See Unkelbach rather than abuse discretion 357, A.2d McNary, 350, (1998). 244 Conn. I that an review, on this standard of conclude Based is not fluctuating a set of income percentage order of applicable authorized under the statutes.2 the financial Because the do control guidelines statutory interpre- case, question in this scenario court either 46b-84 (d) § tation before the is whether authority court provides for the trial (c) 46b-56 § bonus income that cannot be percentage order a set any year. The trial predicted before the end of interpreted provide a incorrectly (d) court 46b-84 assumption its order on an that the basis for justified. apply did but that deviation was if 2 I reach same conclusion the abuse of discretion standard would statutory and, applied. Although interpretation were I believe that review review, governs issue, thus, plenary it is clear to me standard no the trial have discretion to award that under circumstances did (d). that was unrelated need under 46b-84 The trial court the based order on several fac- extraordinary tors, including disparity parental “the income and the significant and essential the needs of [plaintiff] including, to, but not limited the need to provide a home the (Emphasis children.” added.) for proper sup- Neither factor is a consideration for child port under 46b-84 either or 46b-56 Once it (d) (c). § § control, is determined that the do not courts statutory are to factors, explicit. left the which are trial court in this case to princi- failed follow the ple of 46b-84 that the § need is force (d) controlling listed in behind elements that statute.3 In departing from that trial course, court issued a order by that, very nature, its is disconnected from the need An permits factor. order that an integral part of the widely order to fluctuate unpredictably and year year from to as the bonus element of the defen- widely unpredictably dant’s income fluctuates from year year very by to is its nature from unmoored need factor that underlies (d).4 effect, 46b-84 § support order as bonus is “open-ended” income is need, not related to the children’s as concept that is expressed (d).5 problem 46b-84 6The with the trial § court’s formulation is it does not acknowledge that provides: (d) determining § General Statutes 46b-84 “In whether a child and, respective need, is in need of if in maintenance abilities of the parents provide thereof, such maintenance and the amount the court health, station, age, occupation, earning capacity, shall consider amount income, estate, employability and sources of vocational skills and of each parents, health, age, station, occupation, and the educational status expectation, income, skills, employ- amount and sources of vocational ability, estate and needs of the child.” 4Although predictable the bonus is based the annual on income calcula tion, predictable purposes structuring sup it is not in advance for port order. expressed (d), need, 5 I as § would describe “need” in 46b-84 as derived is, specified (d), derived from as the combination of factors in 46b-84 need, which is not related to actual in an sense absolute of survival above poverty level, example. for income” and and sources of factors “amount as are factors. “need” the other are driven “status” bonus (d). Fluctuating 46b-84 General Statutes See including special sources, other income, such claims, in the tax refunds addressed defendant’s percentage qualify as a basis a set cannot logically need requirement being and still fulfill the order based. fluctuating

What makes case difficult this special Need is be determined nature of the income. need, statutory Fluctuating factors. on the basis is the by unpredictable, fluctuating income, driven statutory designed of what factors are antithesis be need cannot guidelines, logically do. Above It is on the factor of income. dependent fluctuating in must (d) that all the factors listed 46b-84 § certain The trial they bear on need. be considered because therefore, interpret providing as court, must statute Other level and need. a correlation between income parents’ in such as children share their goals, entitling are financially equivalent homes, to live income or in statutory scheme.6 provided not in the court in did not The trial this case decide relationship on the of the of income award basis order simply need. It entered a set based percentage is the explaining need, without how it related to specified principle crucial in the statute. The trial did, noted, give appear as reasons factors that do not as in namely, extraordinary disparity in 46b-84 “the (d), § keep Although (c) interests § 46b-56 directs the court to mind the best important supplant children, that consideration does not override or of the Surely (d). § factors listed in a consideration of “best interests” 46b-84 give supplant (d) § based the court free rein to the 46b-84 need does general interpretation permit interests” that would factors with “best specific might conceivably light anything that benefit the children. In of the (d), (c) principle seems to be § § factors in 46b-84 46b-56 best interests guiding (d) analysis. light § 46b-84 no more than for the parental significant income and the and essential [plaintiff] needs but including, to, not limited provide need to a home for the children.” (Emphasis plaintiffs need added.) appears to be a consider- ation that concerns alimony. the award of See General Statutes 46b-82.7 §

The list of factors 46b-84 (d) wide-ranging § many includes that are not cost based. Although the trial court’s discretion in these matters is broad, it is not unlimited and it must grounded be on an accurate I reading statutes. recognize (d) 46b-84 includes station as well as amount and sources of income as factors to consider determining need, but those factors open do not the door to making income based orders without demonstrating that those factors have a on need. bearing may

It be that the trial court could award a higher percentage special of this plaintiff income to the alimony. Alimony obviously entirely has an different consequences rationale and different and is not limited specific to the same requirement. need See General Statutes 46b-82. Currently, present order is more alimony, particularly the nature of because the court plaintiffs recited the needs as a reason for the order. fully appreciate I can perception of unfairness if the defendant is allowed to retain when, his bonus income family if the intact, were still that income would have enjoyed by been shared and spouse. My point, of course, is not that the necessarily defendant should retain income, but that our statutory support provide scheme does not an appropriate vehicle for “ 7 provides (a) part § General Statutes 46b-82 in relevant determin [i]n ing alimony awarded, whether shall be and the duration and amount of the award, length marriage, the court shall . . . consider the of the the causes annulment, marriage legal separation, age, for the dissolution of the or health, station, occupation, income, skills, amount and sources of vocational employability, parties estate and needs of each of the . . . able plaintiff, however, were that income. If the sharing special income percentage set of to demonstrate that a statutory that the scheme bearing on need so has it an order. As way in the such met, nothing stands explained established or stands, that has not been now trial court. by the of the applicability guidelines such time as the

Until may by legisla- be clarified income situations high this instruct I court to commission, urge ture courts look situations, in above that, guideline statutory factors authority first to the and foremost in 46b-84 of the best interests light set forth (d) § consideration due 46b-56, while giving standard other factors. with relevant guidelines, along analysis statutory part factors of a need based that are future fully adequate to our courts guide are produced by will and will avoid confusion that be beyond specified the role inflating I would (a). foregoing reasons, 46b-215b For the judgment reverse the of the trial as to the tax for a order, order and refund and remand the case new on the financial issues.8 hearing

McLACHLAN,J., As the dis concurring. attractive as principles liberation sent’s from the the child arrearage guidelines may be for the (guidelines)* where family bench and bar in cases the net income of parties exceeds the amount set forth in the schedule I find the obligations (schedule), of basic plurality opinion’s to the reasoning of the adherence expressed part plurality opinion, II I As to share the concerns regard to the bonus with award. 1 plurality explains; part plurality opinion; legisla As the see IA of the the guidelines. the of ture created commission to oversee establishment the (a). § General Statutes See 46b-215

138 principles persuasive.2 of the guidelines I, therefore, join plurality. I also note only applying statutory standard of General Statutes 46b-84 (d)3 § my when the schedule is exceeded, view, provides a stronger case for the trial reversing court here. See Bornemann, Bornemann 245 Conn. 508, 531, 752 A.2d 978 (1998) (“judicial review of a trial court’s exer cise of its broad discretion in domestic relations cases questions limited to the of whether court [trial] correctly applied the law and reasonably could have concluded as it [emphasis added; did” internal quota tion marks Section 46b-84 omitted]). (d) requires the to consider the needs of the children and the abilities of both respective parents to meet those needs. The attempts unpersuasively my dissent view —to — find unmet needs of the children due to their economic station, by wildly which must be met pay fluctuating ments father, defendant, from their Frank A. Maturo, to their mother, plaintiff, Laura E. Maturo, likely amounts to be in the tens or even hundreds of thousands of dollars. The dissent not, however, does address of the obligation plaintiff, the children’s parent, financially other to contribute to those needs.4 principles guidelines implicated The of the here are derived from the model, Support income shares on which the are based. Child Arrearage (2005), preamble, (d), pp. § Guidelines ii-iii. The income shares statutory obligation parents model reflects the of both to contribute to child support in accordance with their abilities. See § General Statutes 46b-84 (d). model, portion family spent Under the income shares of on percentage family children declines as a income as that income increases proportionately Support Arrearage because their need decreases. Child preamble, p. (2005), (d), iii; opinion. Guidelines see footnote 3 of this (d) provides: determining General Statutes 46b-84 “In whether a child and, need, respective is in need of maintenance if in abilities parents provide thereof, such maintenance and the amount the court age, health, station, occupation, earning capacity, shall consider the amount income, estate, employability and sources of vocational skills and of each parents, age, health, station, occupation, and the educational status expectation, income, skills, employ- amount and sources of vocational ability, (Emphasis added.) estate and needs child.” plaintiff accounts, $8.1 was awarded million cash and investment including generated approximately $95,680 an investment account that

139 I believe this however, because separately, I write inherent in problems using demonstrates the case well and child alimony income to determine net payments such authorizing payments. The statutes General Statutes net income. specify gross neither nor “support to merely authorizes the court award 46b-61 § *5Similarly, any any of minor without standard.* child” entry after of a decree that, the (a) provides 46b-84 § shall maintain divorce, parents or the separation of legal abilities,” respected to their “according their children part that the court provides 46b-84 in relevant (d) and § health, age, station, its “the making consider award and of capacity, amount sources occupation, earning . parents . . .”6 With ... each of the of pro (a) General Statutes 46b-82 respect alimony, to part the consider the in relevant court vides . . .”7 and income . “amount sources of per year, upon income reflected in her financial affidavit. interest based the alimony. generous trial award of This is in addition to the court’s 5 provides: parents “In the § 46b-61 all cases which General Statutes superior judicial separately, of for the district a minor child live the court application parties may, one of them resides on the of either where the or other, any custody, party given to order as the and after notice the malee education, care, any parties, and of minor child of the visitation subject provisions 46b-56, 46b-54, the of 46b~57and 46b-66. sections Proceedings to be of an obtain such orders shall commenced service application, a summons and an order to show cause.” 6 part: “Upon (a) provides in or General Statutes 46b-84 relevant subse entry quent any marriage or or the of a to the annulment dissolution parents legal separation divorce, or the of a child of decree of minor respective abilities, according marriage, shall their if maintain . . .” the child is in need of maintenance. provides part: “(a) ... § 46b-82 in relevant General Statutes alimony determining awarded, and amount whether shall be duration award, length marriage, . . . consider the of the court shall annulment, marriage separation, legal of the causes for the dissolution health, income, station, occupation, age, amount and sources of voca skills, employability, parties needs tional estate and of each pursuant any, may 46b-81, and, award, if court make to section which the parent custody minor has been in the case of to whom the children awarded, desirability parent’s securing employment. of such Any procedure by chapter “(b) postjudgment shall be avail- afforded present party able to secure the and future financial interests of connec- alimony.” payment periodic final for the tion with a order This court and in our repeat other courts state have edly indicated well settled that a must “[i]t alimony base child orders on the available income of parties, net not gross income.” Morris v. Morris, 299, 306, 262 Conn. 811 A.2d (2003); 1283 v. Auerbach, Auerbach 113 App. 318, 338, Conn. 966 292, denied, 292 901, 971 A.2d cert. Conn. (2009); A.2d 40 Fahy Fahy, 505, see also v. 227 517, Conn. 630 A.2d (1993) alimony 1328 for (standard determining is net income, not Collette, Collette v. gross income); 177 465, 469, Conn. A.2d 891 v. (1979) Tobey 418 (same); 742, 165 Conn. 21 Tobey, 747, (“Gross 345 A.2d (1974) earnings alimony. is not a criterion for awards of It is income, the net which is to the defendant, available Heard, court must Heard v. 116 consider.”); 632, A. 634, (net Conn. 166 67 used (1933) income Ludgin determine v. Conn. alimony); McGowan, 64 App. 355, A.2d 358-59, 780 198 trial (2001) (reversing parties’ court’s financial orders when court relied on gross rather than net income); Febbroriello v. Febbror 200, 21 Conn. iello, App. 202, 572 A.2d 1032 (1990) (trial alimony must periodic base and child Kaplin on net Kaplan, orders available 1 income); Sup. 175, alimony Conn. 175-76 (1935) (modifying on net based defendant’s income).

Although this is stated as a principle settled Con- income law, gross necticut rather than net apparently has been used in fashioning support awards cases, upheld. numerous and these orders have been example, recently Appellate For Court stated that gross the mere reference to income in entering financial may Hughes orders not be determinative. v. Hughes, App. 206, 200, Conn. 895 A.2d an (2006). obvious effort to sustain a trial order on court’s based Appellate gross income, Court, from the quoting court, trial reasoned the trial court “list[ed] plaintiff gross earnings of the to illustrate capability has received pay and the he displayed he has ability from income fluctuates Since his earned for his efforts. for a formula provide will year year, the court support. party Each has alimony periodic and child proposed respect in their proposal in this submitted a Id. marks quotation omitted.) (Internal orders.” plaintiffs pro “Indeed, continued: Appellate Court alimony and . . . an unallocated posed suggest orders annual gross basis of his order on the employment. The court fur from compensation cash plaintiffs and net values gross ther noted the Throughout decision, its most recent cash bonus. financial frequent parties’ to the court made reference returns, tax considered the affidavits. The court also income, plaintiffs gross only which disclosed net liability and, dispos his thus, total tax but also his ample evidence The court had before it able income. net plaintiffs the income from which it could determine of each financial needs and abilities respective only case which 206-207. is not party.” Id., This carefully totality Appellate Court has scrutinized an uphold in order order of the trial court’s award solely on appeared gross be may have based record with income of other information in the because Kelman respect parties’ See, incomes. e.g., to the net A.2d 292 Kelman, App. 120, 123-24, v. 86 Conn. 860 denied, 870 A.2d 1079 , 911, cert. 273 Conn. (2004) . (2005) parties entering for into quite it is common

Indeed, provide for settling dissolution cases to agreements alimony on the income of the payments of based gross Issler, Issler v. 226, 250 payor. 229, Conn. 737 See, e.g., Signore Signore, App. 126, v. 110 Conn. (1999); A.2d 383 alimony 245 This is is 127-28, 954 A.2d because (2008). payor from the income of the and taxable deductible Fahy Fahy, supra, payee. to the See Conn. 516 alimony paid income, n.6. If of net ordered out arguably impossible the true net is to determine because alimony paid when results additional deduction payor, liability to the the tax reducing increasing income. In net order to determine an award based payor’s upon the true net income an almost endless number of calculations and recalculations would be required.8 significant problem

The most with net income using is calculating requires the true net income. Net income a determination of deductions, the correct amount of federal, state and local including taxes, income which can be difficult to calculate and even more difficult to verify of an without all deductions. knowing individual’s contrast, from all gross income sources is much easily and accurately more determined. Gross income includes from all generally sources earned and unearned, taxable and nontaxable. I Although recognize that determining on the basis of gross income, income, require rather than net would a revi- many sion of are guidelines, there states that use gross merely income to calculate child use lower percentage figures than those used in Connecticut.9 highlights difficulty using approach This case net income because easily following situation, occur. could Assume defendant year alimony payment is awarded a one bonus December of and makes his payment alimony deductible, that December. Because the is the defendant’s liability upon and, depending tax will be decreased other and deduc income year (yet problem), tions another he will receive a tax in two refund alimony arguably paid year is attributable to the that was in December of requires payment alimony year two, one. The deduction of additional in year which of is in two course deductible and leads to another tax refund year Assuming years, prob in in three. bonuses are received this successive repeat indefinitely. lem will itself 9 appears gross making support It that some states use income for child aborning gross

while net of others use income. All three our use states purpose determining support. See, e.g., income for the of child N.Y. Dom. (McKinney Sup. 2010). Massachusetts, Rel. Law In § 240.1-b gross Massachusetts, based on See are income. Commonwealth of Court, Support (2009), Administrative Office of the Trial “Child Guidelines” p. http://www.mass.gov/courts/childsupport/guidelines.pdf, available at 2

143 by used the trial court this case method payments demonstrates provide for the escalator folly difficulty requiring and these orders be payor. Accord- solely upon based the net income of the principle I would revisit this “settled” because it ingly, impractical and, required is is not apply significantly, Instead, statute. I would allow trial courts the discre- tion to use all determinations.10 gross with whom KATZ and VERTEFEUILLE, J., PALMER, Js., join, part. join part I with and dissenting agree majority opinion. however, III of the I with disagree, plurality’s part opinion.1 conclusion in I its part opinion, plurality I of its concludes that applied the trial court standard of law when wrong Februaiy 23, (last 2010). visited The same true for Rhode Island. See Family Court, Rhode Island “Administrative Order 2007-03: Rhode Island Ifamily Support (2007), Court Child Formula and Guidelines” available at http://www.cse.ri.gov/downloads/admin_order2007_03.pdf, p. (last 3 visited February 23, 2010). 10Massachusetts, by statute, alimony gross See, e.g., bases on income. Britton, App. 23, 27, 865 (2007) (in awarding Britton v. 69 Mass. N.E.2d 1174 alimony, properly gross trial court considered husband’s income and other 208, may [2003]). factors listed in Mass. § Gen. Laws c. A court consider upon parties; Early Early, the tax effects of its orders see 413 Mass. 728, 720, (1992); discretionary 604 N.E.2d 17 but such consideration is request Bennett, App. the absence of a to do so. See Bennett v. 15 Mass. 999, 1000, (1983). approach 448 N.E.2d 77 New York uses an all income consequences directs the court to consider the tax of its orders. See N.Y. (1) (7) (McKinney Sup. 2010). Dom. Rel. Law 236 B 6 a In Rhode Island, supporting spouse’s the court must consider the “earned and “ability pay.” (b) (2) (ii) unearned income” and R.I. Gen. Laws 15-5-16 (F) (2003). Thus, required the court is to consider the “economic situation parties light exigencies spouse viewed in of the financial of one ability spouse Fisk, of the other to meet those needs.” Fisk v. 537 A.2d 418, (R.I.1988). consequences The decision to take into account the tax property subject distribution is to the discretion trial court. Kou Tzeremes, 1091, (R.I. 2005). troumanos v. 865 A.2d disagree part plurality opinion 1 Ialso with II of the as it relates to the explained award for the same reasons as herein and therefore separately part plurality opinion. do not address that of the 144 A. defendant, an Frank requiring

it entered order supple- of his Maturo, pay percent to annual bonus because support mental child for his two minor children statutory with the applicable this order is inconsistent support arrearage and the child applicable criteria plurality The further concludes (guidelines). guidelines it improper child order was because support that the at a support variable child award open-ended, was an net income than of the defendant’s higher percentage applied end of percent upper the 15.89 that is at the support child guidelines (sched- the schedule basic reasonably was related the needs of the ule), and several disagree children. I with these conclusions for First, with the disagree plurality reasons. I control the trial court’s determination guidelines support family. Second, for income even high child this high if the were determinative for this family, plurality I with the that the trial court’s disagree pay percent requiring award the defendant annual portion supplemental net cash of his bonus as Third, abuse constitutes an of discretion. plurality I with that the trial court did not disagree forth in properly apply consider and factors set Finally, with General 46b-84. I also disagree Statutes “the plurality’s cramped view of what constitutes purposes needs of the child” for of our child guidelines. statutes and plurality opinion sets forth the facts found however, following facts,

the trial court. The additional appeal. on ordering are also relevant to the issue $636 pay defendant the amount plus of his net cash bonus per percent week annual were trial deducted, after state and federal taxes “The reach a following: [guidelines] court stated the $4000 weekly per maximum income of week and $5000 per well in income is excess [defendant’s] week. The basis the deviation from the [guidelines] assets, substantial is [defendant’s] [defendant’s] extraordinary superior earning capacity, disparity parental income and the and essential significant [plaintiff, needs of the Laura E. but including, Maturo] to, provide not limited the need to a home for the chil- The is this order because it making dren. also yearly has not considered the noncash [defendant’s] compensation options stock (composed $530,000 restricted stock in the amount of for 2005 and alimony received in January, 2006) making its awards. court did consider the [defen- options prop- stock and restricted stock in the dant’s] erty division.” agree plurality respect

I with the with to our standard of review. “The review in well settled standard of domestic relations cases is that this court will not dis turb trial court orders unless the trial court has abused its discretion or its have no reasonable legal findings basis in explained, the facts. ... As has often been the foundation for this standard is that the trial court is clearly in a advantageous position personal to assess the significant factors to a domestic relations case . . . .” (Internal quotation Simms, marks Simms v. omitted.) 283 Conn. 494, 502, 927 A.2d 894 Bor (2007), quoting Borkowski, 729, kowski v. 228 Conn. 739, 638 A.2d 1060 (1994). “Notwithstanding great deference accorded the trial court in dissolution proceedings, trial court’s may . . ruling if, . be reversed in the exercise of its discretion, applies the trial court standard wrong law.” Borkowski, Borkowski v. 740. I supra, further plurality’s with the agree question conclusion that “[t]he and to whether, extent, what the child guide apply, however, question lines is a of law over which this court plenary should exercise review.” I disagree, with however, plurality’s application of this stan dard of review present to the case. plurality’s with the threshold

My disagreement first with controlling are conclusion for this of child the determination regard from vari- words family. Piecing together high and the statutes, guidelines applicable parts ous that, plurality concludes to the preamble guidelines, statutes, guide- as well as sum, applicable “[i]n awards must be support that all child lines, provide principles with the established in accordance made promote ‘equity,’ awards such therein to ensure that ‘at all income ‘consistency’ for children ‘uniformity’ and ”2 “[although concludes that plurality The levels.’ awards on to make courts discretion guidelines grant prescribed the amount ‘case-by-case’ basis above when the limit of the schedule family upper at the exceeds weekly parents net income combined $4000 . . . the presently guidelines which is limit, that princi- follow the that such awards should also indicate preamble in the ple expressly acknowledged support obliga- that the child reflected in the schedule weekly income of combined net percentage as a tion I disagree. level rises.” as the income should decline (a),3 Statutes 46b-215b I with General begin . . . guidelines part in relevant provides “[t]he may, “although plurality courts in the exercise also concludes that The percentage discretion, of the combined net the correct of their determine support weekly light in each assigned of the circumstances income to child other, obligations particular case, including additional a consideration of parent, any imposed the schedule or deviation from on the noncustodial by accompanied guidelines principles must be which the are based on inappropri why inequitable explanation guidelines are as to the court’s necessary why the child.” to met the needs of the deviation is ate and improperly applied plurality concludes that the trial court further present guidelines case. Because I conclude that the criteria in the deviation families, high I not do address in the case of are determinative properly applied deviation criteria trial whether the provides part: “(a) The child in relevant Statutes 46b-215b General pursuant support guidelines to section 46b-215a and in effect established support in all determina shall be considered the date of the determination on amounts, any past-due support support amounts, including tions of child past-due support payment arrearages the state. In all within on in all determinations considered . . . shall be required court is Thus, . .” a trial . . support amounts upon to it is called when with the guidelines to begin (a) 46b-215b order. Section a child establish pre- a rebuttable there shall be further establishes be ordered the amount sumption that in the established the amount will be the court guidelines. There is no themselves. guidelines

I turn next to by the addressed net income that the maximum dispute the net $4000 week and that per schedule case at the time present in the income of the defendant preamble $5000 per week. The exceeded of dissolution “remain states that courts specifically to the guidelines on a awards appropriate free to fashion income exceeds where the combined case-by-case basis Support and . . . .” Child of the schedule range the vi. preamble, p. (2005), (e) (6), Arrearage § Guidelines demonstrates history guidelines A the of the review of family support guide- for the intent of commission income families. regard high lines with (commission) promul- year In first in which the commission 1991, the preamble stated, gated guidelines, “[w]hen family cap, guide- exceeds the combined income should not be apply except that the order lines do applicable at the income highest less than that which is subject to the court’s discre- level within the guidelines, determinations, presumption that the amount there shall be a rebuttable such application guidelines of such is of such awards which resulted from the any any past-due support, payment support, including on or the amount of finding past-due support specific arrearage on the record to be ordered. A or inappropriate inequitable application guidelines be that the of the would by particular case, the Commis- criteria established in a as determined under required 46b-215a, Support under section shall be for Child Guidelines sion presumption . . . rebut the in such case. in order to any proceeding of a child “(c) the establishment or modification support guidelines support award, in addition shall be considered the child established in sections of the criteria for such awards to and not lieu 46b-171, 46b-172, 46b-215, 46b-84, 46b-86, 46b-130, 17b-179 and 17b-745.” Support tion.” (Emphasis added.) Child and Arrearage preamble, p. Guidelines 4. When (1991), (c) (3), commission published updated its edition of the guide- lines in 1994, applicable the commission “extended the under these . . . range guidelines regulations. courts remain level], appro- to fashion [Above free priate support case-by-case awards on a basis, provided the support prescribed amount of at the [high- est income presumed level contained schedule] to be the nrünimum that should be ordered in such Support cases.” Child (Emphasis added.) Arrearage preamble, p. Guidelines vii. (1994), (e) (1), Thus, con- trary plurality, preamble to the conclusion of the to the demonstrates guidelines commission intended for the trial courts to have discretion to deter- case-by-case mine child awards “on a basis” family when income exceeds the highest income level contained in the guidelines, although guidelines do weekly establish the minimum level of presumptive sup- port that should be awarded in such cases. Id. The any therefore do not establish presumptive amount of child for high families, income other weekly support than the minimum amount.

My of the role that the understanding guidelines play in establishing awards for high families is farther informed this court’s decision Battersby Battersby, 467, 218 Conn. 590 A.2d 427 trial (1991). case, that the court concluded that the apply family did not guidelines the before the court family because the income exceeded the highest income shown on the guidelines schedule. The trial court there- fore exercised its discretion and ordered child support considerations, based on number of the including statutory factors. The defendant father thereafter appealed, that: the claiming (1) trial court’s refusal to apply the guidelines requirement violated the in 46b- 215b that the “shall be (a) guidelines considered”; and from extrapolate failed to improperly court the trial (2) percent- highest the by applying schedule guidelines This income. family’s excess schedule to in the age judgment and affirmed both claims rejected that 46b- determined, first, This court court. of the trial consider the trial court only that “requires 215b (a) Id., so. had done trial court that the [guidelines” court had the trial found that this court Second, 470. extrap- suggested defendant’s reject the authority to are no We stated the guidelines. from “[t]here olation levels the income higher extrapolating for provisions [guide- forth in the set or award amounts percentages concluded Id. This court lines schedule].” merit because without claim was defendant’s “[t]he the [guidelines, considered the court record shows that pre- at a arriving inapplicable for found the [schedule] statutory considered the amount, and sumptive support at its arriving factors [guideline and other criteria Id., 472. decision.” rules, principles, defined as “the are guidelines for the determination worksheet ...

schedule and used when award, to be appropriate an temporary and both initially establishing modifying 46b- Agencies § Conn. State Regs., orders.” permanent Battersby, I with Accordingly, consistent (5). 215a-l set forth in the schedule although would conclude a child determining for controlling is not guidelines family like the one income high award for the trial court to appropriate for present case, it in forming portions guidelines the other consider what constitutes instance, determining For its award. appropriate it is purposes provided income” “gross look to the definition Moreover, as the definition in the guidelines. by gen- are informed provides, guidelines in all important to consider that are principles eral plurality, how- Contrary to the support determinations. ever, rely I entirety would on the of principles the basic preamble. set forth in the Support Child 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 income shares model. I Id. disagree, however, with the plurality that the principles guidelines merely mean that “spending on chil- dren proportion declines as a family income as that income . Id., p. increases . . .” iii. I Although recognize principles one of the underlying model, only shares it is not the explained one. As more fully herein, the income shares primar- model is guided ily by premise that the “child should receive the proportion same parental income as he or she would have received if parents lived together” rejects and it the notion that awards must be based on an itemized of need. ii. showing Id., p.

Thus, given requirement consideration of 46b- 215b (a), text, principles and schedule of the guide- lines, including preamble, and this court’s ruling Battersby, I would conclude that the trial court in the present properly case 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 weekly amount of support as shown on the schedule; and (4) then used its discretion to order additional support permitted under the guidelines because the defendant’s income exceeded the highest income on the schedule. plurality spends several pages opinion of its history

detailing adoption of the guidelines to demonstrate purpose that the was judicial to limit discretion the area of determinations. I do Although dispute may that this be the general purpose of the guidelines, the commis- that it demonstrates explicit language textual sion’s awarding when to retain discretion intended for courts income families. involving high in cases support family’s “when a concludes, however, that plurality The $4000, the court weekly income exceeds combined net in the forth schedule percentage treat the set should ceiling presumptive level highest at the income by to subject rebuttal support obligation, on the child in deviation enumerated application of the criteria statutory factors described as well as guidelines, This conclusion is in added.) 46b-84 (d).” (Emphasis explic- to the discretion intended and opposition direct with to itly provided by regard high for the commission Moreover, plurality establishes a income families. support income fami- “ceiling” high for child awards any support for such a despite lies the lack textual “are cap. plurality guidelines that acknowledges part accompanied by preamble regu- that is interpretation.” lations intended to assist in their but is preamble, that I Relying explicit on the language clearly did not would conclude that commission intend be determinative of the guidelines for the to appropriate high award for a income fam- ily present like in the the one case. ours, spe- to interpreting guidelines similar

cifically case-by- on a “require a court determination cases which the income of the case basis” those per $6250 parent month, exceeds paying Supreme Court guide- Tennessee concluded “[t]he very lines’ reflects this need for an exercise of latitude Mulle, 803, (Tenn. discretion.” Nash 846 S.W.2d went on that “it would . . . 1993). That court to state require parent prove specific be unfair a custodial will beyond need the court increase an award before amount contained in the At highest guidelines]. [the levels, parents unlikely such are able high income to be Moreover, parents the cost of most living. ‘itemize’ within their living present means would not be able to expenditures lists of anticipation made the mere support. more child Until specifi- more cally address awards for the children of high- parents, rely we are content to on the judgment provided of the trial courts within the bounds them those Id. in mind guidelines.” Similarly, bearing in explicitly the commission this state also has chosen to allow courts to “remain free” support to fashion child case-by-case awards for high basis; income families on a Support Child and Arrearage pream- Guidelines (2005), I ble, p. vi; would conclude that until our (e) (6), specifically support more address awards rely

for the children of income high families, we must on the sound discretion of our trial courts such instances.

Furthermore, even if I were to agree plurality with the that the guidelines do control the determination of child support family awards for a high income like the one present case, in the I would not conclude that the trial court by abused its discretion the defendant requiring pay percent of his annual cash bonus as additional support percent rather than the 15.89 that the plurality appropriate. concludes is plurality opinion

The concludes that “the payment for two children under the guidelines should presumptively percent not exceed 15.89 when the com- weekly family bined net income of the $4000, exceeds and, cases, most should reflect less than that amount.” In conclusion, plurality of its points to the presumptive support schedule of awards contained in guidelines. Specifically, plurality required concludes that because the support payment percent for two children declines from 35.99 when the weekly parties combined net income of the is $310, to percent 15.89 when the weekly combined net income $4000, support payment for those families whose per- $4000 “15.89 income should be weekly net is over . . . .” I and would not conclude disagree cent or less by its discretion awarding trial court abused percent of the annual an 4.11 defendant’s additional supplemental support. cash bonus conclusion, plurality states that support of its principles by was “the guideline trial court bound family net declining combined percentage as the level rises be awarded income should any allocated and that the future bonus percentage consistent’ . . . ‘generally for child should be schedule in with the established percentages consistency, uniformity equity order ensure persons (Cita- in such circumstances.” treatment plurality’s in this regard tion conclusion omitted.) consistency offers First, approach is flawed. its no more trial uniformity approach than the taken supplemental plurality concludes that the because the less. percent child order be 15.89 support should same approach, however, this under the facts Utilizing could case, properly as one trial court order present percent of 1 of a substantial supplemental support properly trial court could annual bonus another support percent of a supplemental order 15.89 approach I this disagree substantial annual bonus. any consistent, equitable more uniform or than the percent present trial court’s award in the case of the defendant’s annual cash bonus. Battersby Battersby, also on plurality relies conclusion. I

supra, 467, 218 Conn. of its Battersby. In disagree plurality’s reading with Battersby, previously herein, as set forth this court court, of the trial which had judgment affirmed the extrapolate from the guidelines refused to when percent- a child award based on a determining family highest where the income was above the age, level in the schedule and the guidelines. contained doing so, this court recognized “[tjhere are no provisions extrapolating higher income levels the percentages or award amounts set in the forth [guidelines If chart. the legislature or commission had provide intended to extrapolation for such chart, it could have said so. Two long-standing rules of statu- tory construction are may by that a court construc- supply tion omissions a statute simply because it appears that good reasons exist for adding them . . . and that a court must construe a statute as it it, finds without reference to whether it thinks the statute would have been or could be improved by the inclusion of provisions. other . . . These statutory rules of con- struction equally applicable are to the task confronting the trial court in apply attempting these legislatively mandated [guidelines.” (Citations omitted; emphasis Id., added.) 470-71. This court also that, stated in its report, final the commission that originally had recom- mended the adoption of the guidelines had noted that is generally accepted that the guidelines are of “[i]t minimal value in framing support obligations at both and low high ends of the income scale.” (Internal quotation marks omitted.) Id., 473. Accordingly, we con- cluded that “the trial authority court had the reject the defendant’s suggested extrapolation of the [g]uide- lines’ percentage inappropriate inequitable the circumstances before it.” Id. this Although Battersby concluded that the trial court did not abuse its discretion entering order that constituted a lower percentage support of than that contained at the highest income level on the schedule, in nothing Bat- tersby suggested that a lower required. was percentage

The plurality also cites Gentile v. Carneiro, 107 Conn. App. 630, 946 A.2d 871 (2008), support of its conclu sion that the trial court improperly required the defen dant pay to a higher of percentage his net cash bonus than the applicable percentage $4000 at the weekly

155 how- Gentile, in the schedule. level contained Gentile, In present to case. inapposite is ever, defen- required order supplemental court’s “[trial] $20,000 the first pay percent of dant [husband] he entitled to receive that commissions aggregate $20,000 excess of any commission in percent of Appellate Id., 649. The he is entitled receive.” that supplemental order was that this Court concluded pay it the defendant improper obligated because than the higher that was of commissions percentage by the schedule of mandated percentage income defen- Id., high Unlike the income level. 650. his present case, however, the income dant in the encompassed within the in Gentile was defendant therefore, obligated trial was schedule, court, and the therein. percentage to use the contained Moreover, important to remember that the trial it is only percent of present in the case awarded court as supplemental defendant’s annual net cash bonus any did award of the defendant’s support; child it not supplemental support. child annual stock bonus supplemental support order, child the trial entering explained making is also this court “[t]he it has considered the order because [defendant’s] compensation stock yearly noncash (composed $530,000 options and restricted stock the amount of for 2005 and in . . . its ali- 2006) making received mony awards.” The trial court made no findings factual about value defendant’s annual stock bonus. We therefore are unable to deter- family mine the net income percentage exact total support. evident, however, that is ordered for child It is any if stock mate- the defendant’s annual bonus has supplemental at all, rial value then the likely ordered the trial court would be less than 15.89 percent family plurality net income that the total concludes is the for the award. ceiling only response analysis defendant’s to this is fac

tually and unsupported. The defendant states: legally plaintiff “The also asserts that the percentage [the] paid defendant’s bonus-based income as being her is lower than claimed defendant since [the] defendant’s calculations do not include non- his [the] However, cash stock . . . bonus. the court treated this noncash as an award asset awarded to defendant [the] part property as of its distribution, expressly excluding alimony this from consideration and child ” true, course, awards. It that is the trial court awarded defendant, part as property all of settlement, the restricted unexercised stock shares that the prior defendant had earned to the dissolution of the couple’s Contrary marriage. to the defendant’s con tention, however, property there is no distribution order stock respecting compensation, after occurring future dissolution, expect nor would one as it there be is well that earnings established such future are not and, therefore, marital not subject assets to division. Bornemann v. See, e.g., Bornemann, 508, 245 Conn. 517, 752 prop A.2d 978 broad (1998) (“our definition of erty . entirely . . prop without limitation [i]s [as] erty only under 46b-81 includes Statutes] [General presently opposed are existing, to mere interests Kiniry Kiniry, 614, expectancies”); App. Conn. 624, 803 (“stock options A.2d that are (2002) prior awarded to the date of dissolution awarded solely for past services are considered to be earned during are, marriage therefore, considered mari subject equitable property tal distribution under 46b-81”). Because defendant’s future sub earnings sequent assets, to dissolution are not marital it would have been unlawful the court to divide them as property, marital as the defendant claims the court did in this importantly, absolutely case. More there no evidence in record this is what court did— bonus future noncash the defendant’s i.e., distribute of the marriage. as “assets” memo- 5 of the trial court’s cites to The defendant for his contention as of decision randum as an award noncash “the court treated [bonus] th[e] of part property its defendant as asset awarded to [the] how- decision, of the court’s This section distribution.” property not marital support only, ever, addresses child pay portion to a the defendant ordering distribution. empha- support, the court of net cash bonus his yearly it “has not considered the sized that [defendant’s] alimony its and compensation making ... noncash it court then stated that “did support awards.” The options the stock and restricted consider [defendant’s] property added.) in the division." (Emphasis stock clearly between “noncash distinguished the court Thus, levy not to compensation,” which it elected and restricted stock in purposes, options and “stock division,” part the were distributed as property respect (Emphasis added.) of the marital estate. With stock, options to stock and restricted the record the defendant, part court the reflects the awarded of Merrill property division, the restricted shares of Lynch $1,850,000 stock with a and unexercised value options of $3,529,000. stock with value Those shares however, options, prior were earned the dissolu- marriage. tion of with conclusion that disagree plurality’s

I also apply properly statutory trial court did not criteria the present governed case. Child orders are by, alia, §§ inter General Statutes 46b-844and 46b-215b. provides part: “(a) Upon § 46b-84 in relevant or subse General Statutes quent entry any marriage to the annulment or dissolution oí or the divorce, parents legal separation of a child of the decree of minor respective abilities, according marriage, shall maintain the child to their if Any procedure postjudgment child is need of maintenance. afforded present chapter 906 secure shall be available to future financial periodic payment party of a in connection with a final order for the interests support. of child . . .

Under parents 46b-84 (a), divorcing minor chil- dren are required they maintain the children if are “in need of maintenance.” “In determining whether a child is in and, need maintenance if in need, respective parents provide abilities such main- tenance and the amount thereof, shall con- sider the age, health, station, occupation, earning capacity, income, amount sources of estate, voca- tional employability skills and of each of the parents, health, station, and the age, occupation, educational status expectation, and amount and of income, sources vocational skills, employability, estate and needs of the child.” General Statutes 46b-84 Section (d). § 46b-215b provides further in part: relevant The child “(a) support guidelines pursuant established to section 46b-215a and in effect of support on the date determination shall be all considered in determinations of child support any past-due amounts, including support amounts, and payment on arrearages past-due support and within determinations, the state. In all such there shall be a rebuttable presumption that the amount of such awards application which resulted from the of such guidelines any is the support, past-due amount of including sup- port, any or on payment past-due arrearage or to specific be ordered. A finding on the record that the application guidelines inequitable of the would be a inappropriate particular case, as determined under criteria established the Commission for Child Sup- port under 46b-215a, Guidelines section shall be required in order to rebut the presumption in such case. . . . “(d) determining and, In whether child is in need maintenance of if in need, respective parents provide of the abilities such maintenance thereof, age, health, station, and the amount the court shall consider occupation, earning capacity, income, estate, amount and sources voca- employability parents, age, health,

tional skills of each and the station, occupation, expectation, educational status and amount and sources income, skills, employability, vocational estate needs of the child. or modi- any for the establishment proceeding “(c) award, child fication of and not in addition to shall be considered awards established of the criteria such lieu . . 46b-84 . [section] sets forth (d), which

I turn to the text 46b-84 first is determine the manner trial The subsec- in need of maintenance. whether a a child is in determining tion “In whether provides: and, need, respective maintenance if in need of provide such maintenance parents abilities of thereof, shall consider the and the amount the court capacity, health, station, occupation, earning age, estate, skills income, and sources of vocational amount age, and the employability parents, of each of the station, occupation, educational status and health, vocational expectation, income, amount and sources employability, estate and needs of the child.” skills, (d). Thus, General Statutes 46b-84 (Emphasis added.) by trial court is express (d), the terms of 46b-84 the § many factors forth required consider set is in first, whether the child determining, statute and, second, the amount of need. need, Indeed, punctuation supports my of 46b-84 (d) § punctuation is not con “Although generally conclusion. aspect enactment, an a legislative sidered immutable v. histoiy; Roque, its unstable see State 190 Conn. given 460 2A 143, 152, (1983); Sutherland, A.2d 26 see also J. [Statutory (4th 1984)] 47.15; Construction Ed. Sands § discerning legislative it can be a tool for intent. useful Dennis, 245, 248, 188 State v. 150 Conn. A.2d 65 (1963); Murray, Inc. 146 Chiropody Society, Connecticut v. 613, Thus, A.2d 412 where a 617, (1959). Conn. 153 phrase separated pre qualifying phrases is from several may that the comma, it means of a one infer ceding phrase apply intended its anteced qualifying all 2A only immediately one it. J. ents, preceding Sutherland, supra, 47.33.” § Sanzone Board Police Commissioners, 179, 219 Conn. 189-90, 592 A.2d 912 (1991). this Applying rule to 46b-84 I § would (d), con- clude that the legislature intended that trial courts examine the delineated factors both when determining whether a child is in need of maintenance and also when determining amount of required. maintenance Thus, the statute requires that the child’s need is not to be determined narrowly, but rather broadly, only and after a variety consideration of a of factors concerning the child, “the including 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- § explain As I (d). hereafter, factors under 46b-84 § (d) such as “station” and “educational status and expec- tation” are particularly important in analyzing the needs of the children in high income families such as the one present in the case.

General Statutes 46b-56,5which also governs child imposes orders, an additional factor to be con- provides part: General “(a) any Statutes 46b-56 in relevant In contro versy Superior custody before the Court as children, to the or care of minor any day any complaint at time after the return under section 46b- 45, may modify any proper regarding make or custody, order care, education, jurisdic visitation and of the if children it has .... tion “(c) making any modifying provided (a) order as in subsections (b) section, of this child, court shall consider the best interests of the doing may consider, to, and in so but shall not be limited one or more of following (1) temperament developmental factors: needs of the child; (2) capacity disposition parents and the to understand and child; any (3) meet the needs of the relevant and material information child, including preferences obtained from the child; the informed of the (4) parents custody; past the wishes of the (5) child’s as to the and current relationship interaction parent, and of the child siblings with each the child’s any person may significantly and other who affect the best interests of the child; (6) willingness ability parent the and of encourage each to facilitate and continuing parent-child relationship such between the child and the other parent appropriate, including compliance any as orders; (7) with court any manipulation by parents or coercive behavior of the in an effort to orders. Section support child determining in sidered making part that, in provides relevant (c) 46b-56 “[i]n care, custody, the any [regarding order modifying or the children], the education, and of visitation of the child best interests court shall consider the “best consideration, broad . . . .” This adds the statute many of child” the other factors interests the to support orders. determining in child must be considered determining in child It is well established that living standard of awards, courts should consider “the if the enjoyed have or children would that the child 24A Am. Jur. 2d live family together.” had continued to court Separation This (2008). Divorce and 414, to proper that it is for courts repeatedly recognized has determining of in parents’ living the consider standard Blake, v. 207 Conn. support payments. child See Blake also courts have 217, 232, (“[o]ur 541 A.2d 1201 (1988) determining parties’ living standard of considered the citing Burke, Burke payments”), child Morris, 74, 75 A.2d 42 Morris v. 76-81, (1950); Conn. A.2d 463 cannot 188, 193-94, 43 (1945) (“[w]e 132 Conn. parents’ ability parent dispute; (8) of to involve the child in the the each adjustment actively child; (9) his the life the child’s be involved in of the home, community environments; (10) length the of time her or school satisfactory in a environment and that the child has lived stable continuity environment, provided desirability maintaining such may favorably voluntarily parent who the child’s consider leaves household; (11) family pendente home lite order to alleviate stress stability proposed residences, both; existing (12) or of the child’s or disability involved, except physical mental and health all individuals parent itself, proposed party, in and of shall not be of a custodial or other custody proposed arrangement is not custodial determinative unless (14) child; (13) background; in the best interests of the the child’s cultural any abuser, on the of an if domestic violence the effect actions parents parent between a and another individual has occurred between or child; (15) sibling or a of the child has been abused or the whether respectively 46b-120; neglected, (16) in section whether defined completed party satisfactorily participation parenting in a education required program pursuant The court is not established to section 46b-69b. any any assign weight factors considers. . . .” that it hold that the trial court, taking into consideration as it did the financial circumstances and standard of living of the parties, abused its discretion in ordering pay- ments in the amounts stated”). This court previously has concluded that the use of the term “station” in the marital dissolution requires statutes the court consider the standard of living parties. See Blake v. Blake, supra, 232 (“The pertinent most definition of ‘station’ in Webster, Third New Intemational Diction- ary, is ‘social A standing.’ person’s social standing strongly correlated to his standard of living, although may other factors important be as well. Our courts have frequently considered the standard of living enjoyed by spouses in alimony determining or in dividing marital property.”).

On the basis of the foregoing, I would that, conclude present case, the trial court did not abuse its discretion ordering child 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 experienced have lifestyle consistent with this high income for then- entire lives. The trial entry court’s of a weekly support order of $636, the maximum amount under the guidelines schedule, plus percent of the defendant’s annual net cash bonus, is in accord with the directive of § 46b-84 (d) consider the age, station and educational status and expectation of the children, and of 46b-56, requires a consideration of the children’s best interests. The trial court’s present orders case did not include an educational award; instead, the trial court jurisdiction as to how the “reserve[d] children’s college expenses shall paid.” be It is not unreasonable, trial however, to infer that intended portion that a of the supplemental sup- port order might put be aside to meet the cost of college, particularly considering fact that parents both are an advanced defendant holds educated the college the it reasonable for trial addition, In was degree. automobiles, such items as anticipate expenses spe- insurance, vacations, liability extended automobile teenagers these camps luxuries that cialized and other parents not had their likely enjoyed would have order supplemental support divorced. The trial court’s they will have the luxuries that ensures that the children family if remained intact. have the had would received cramped plurality’s I with the Finally, disagree also guidelines regard the with of the statutes and reading concludes plurality needs the children. The of consis- proven, as is a routine follows: there “[W]hen income, as when a bonus is based tency in annual bonus party’s steady income, of a on established percentage an a represents an of child that additional award may appro- of net bonus also be percentage cash When there priate justified by if the needs the child. however, history wildly bonuses, or fluctuating is a vary will expectation that future bonuses reasonable substantially, case, in the an award based present as impermis- on fixed of the net cash bonus is percentage sible unless it can be linked to child’s characteristics my view, approach this and demonstrated needs.” applicable which, is in with the statutes direct conflict previously herein, demonstrate that child discussed by taking are to be awarded into account orders variety phys- beyond a wide of factors the demonstrated ical needs the children. provide

The themselves evidence that this sup- explicitly rejected has the notion that child state solely port be based on the costs determinations should physical needs of associated with the child. meeting explains that preamble guidelines explicitly The are on [guidelines] based “[t]he [i]ncome [s]hares presumes [mjodel. [i]ncome [s]hares [m]odel parental same proportion the child should receive the she parents income as he or would have received if the together. lived shares Underlying model, therefore, policy that the parents any should bear additional expenses resulting from the maintenance of separate two one, households instead of since it is not parents divorce, child’s decision separate, separately. otherwise live “The proven has to be the [s]hares [i]ncome [m]odel widely most accepted, particularly due to its consider- parents. ation of the of both About two-thirds of the states the follow income shares model .... [ijncome

“The reflects presently [s]hares [m]odel available data on costs of average raising children households a wide range family across of incomes and sizes. Because household on behalf spending of chil- dren with is intertwined behalf of spending on adults for expenditure most it is difficult categories, to deter- mine the proportion exact allocated to children in indi- vidual cases, even with financial exhaustive affidavits. a number of However, economic authoritative studies provide based on data national rehable estimates of the average of household expenditures amount on children in intact households. The studies have found that the proportion of household devoted to spending children is systematically consistently related to the level of household income and to the number of children.” Child Support and Guidelines Arrearage (2005), pream- ble, pp. ii-iii. “Rather (d), defining than the individual case-by-case needs of a on a required basis as is sharing the cost methodology, an income sharing approach to looks economic to evidence establish an portion identified of the an family income of intact spent on children.” A. Rutkin, Family Law [c]; Practice see also (2009) § Jenkins v. 33.04[2] Jenkins, 584, 594, 243 Conn. 704 A.2d 231 (1998) (“The guidelines provide that the principles basic from which they were derived are found in the ‘income shares Therefore, . . support. of child . model’ calculation with the determi- guidelines, in order to be accord must parent’s support obligation nation of a have income that would been account for all family the children had available to A. Rutkin, together.” omitted.]); remained [Citation “incorpo- model supra, shares (income § 33.04[2] [c] Mar- statutory set out the Uniform rates standard ‘In a for Act, proceeding and Divorce wit: riage separation, maintenance, marriage, legal dissolution of may the court order either both support, or child necessary an amount reasonable or parents pay after misconduct, without to marital support, regard his considering all relevant factors including ... ^[3] enjoyed had child would have living standard of Indeed, since the ”). been dissolved’ marriage twenty years approximately first took effect they evidentiary prov- from “have shifted the focus ago, parents’ establishing ing needs children Support Interpre- Child Guidelines: Morgan, income.” L. Application 2009) 2.03 The (Sup. tation and § [a]. with approach plurality taken the is inconsistent model. Consistent with income the income shares in the model, shares schedule contained net of not on parties, proven focuses on the income for the child or children. raising costs v. plurality Ford, 25, The Ford 600 A.2d 30 (Del. cites App. Marriage Bush, 249, and In re 191 Ill. 3d 1991), of appeal denied, 547 129 Ill. 2d 261, (1989), N.E.2d 590 proposition 550 for the that 561, (1990), N.E.2d 553 families more income to higher savings devote needs; therefore, and less on a award excess would a distri of the child’s reasonable needs constitute parent’s of noncustodial estate and a windfall bution to the child. the Delaware and Illinois courts Although adopt approach at the time those cases were did this decided, when the generally it is understood that states adopt

first began “a guidelines, body law developed of case that such there was a thing as child support, is, ‘excess’ that too much child that was in excess of the child’s ‘reasonable needs.” L. supra, Morgan, 4.07 [2]. [b] “In years, recent there has been a definite trend away from type reasoning Ford, described in [Ford and In re Marriage Bush, supra, supra, 30, 600 A.2d App. 191 Ill. 3d there an Instead has been increas 249]. ing recognition that a child entitled share in increasing good parents. fortune and wealth of his/her This new wave of cases with recognition started that appropriate standard of child of living parents affluent is affluence matching par ents, regardless parent of the ‘wishes’ of the to direct the upbringing of the child.” L. Morgan, supra, 4.07 [3], [b] Pennsylvania Superior Court explained this con- v. Jackson, Branch

cept in the case of 427 Pa. Super. 417, A.2d 420, (1993), “necessaries, follows: and luxuries are relative matters. . . . Children of wealthy parents are entitled to the educational advan- tages travel, private in music, drama, lessons swim- horseback ming, riding, and other activities they ability. They show interest and are entitled to the best care, good clothes, familiarity medical with good restaurants, good hotels, shows, good and good camps. possible It is a child with nothing more him, than a house to keep shelter coat to him warm food him keep healthy sufficient will be happier and more successful than child who has all the advan- tages, parents but most strive and to give sacrifice their children cost advantages money. wealthy

“A legal duty father has a to give his children the advantages which his financial status indicates to be reasonable .... parent] should not be forced [A give make sacrifices to personal by order above, we referred to which advantages them all ability assets, youth, and the father with the but a with these can furnish his children of the defendant on his any sacrifice advantages recognizable without omitted.) marks part.” (Internal quotation of the California I also find decision persuasive Smith, Marriage re Ostler & Appeal of in In Court of In that App. 33, Rptr. (1990). Cal. 3d 272 Cal. in a disso- appealed judgment from a case, the husband at awarding lution of action marriage applicable allowed maximum amount support equal per- to 10 plus additional child 42. per Id., child. of the husband’s annual bonus cent that the trial court had appeal, On the husband claimed was its because there no evidence abused discretion and the that the children needed additional award per- had a mechanical improperly applied trial court 51. Id., formula to the award. The Court centage court, of the trial con- Appeal judgment affirmed “Overall, as follows: there was sufficient evi- cluding approximately dence for what the court determine boys the needs and would be for nine and were about years Determining fourteen amount comes age. may within the trier fix a rule that the of fact reasonable where are sum the matters nontechnical nature . . knowledge. of common . The court could call on its own of such as the cost knowledge things inflation, drivers, of car insurance for male the cost of teenaged major trips, boys vacation and allowances as aged, well as the cost food clothing.” increased of their marks omitted; quotation omitted.) internal (Citation 53-54; Id., Marriage Mosley, see also In re 165 Cal. App. 1387, Rptr. 4th 82 Cal. 3d 497 1375, (2008) (The Appeal case, Court of remanded the the trial requiring court to in its a method for requiring “include order pay support any based on obligations [the husband] 168 may

bonus income that he in fact may, receive. It for example, an fashion additional award, over and above guideline support, expressed as a fraction or percentage any of discretionary actually bonus received.”). plurality also relies on In re Marriage Bush, supra, Ill. App. 3d 255, wherein respondent father had been pay percent ordered to of his net annual income a into trust fund for his child in addition $800 per month cash to the mother.

On appeal, respondent father claimed that the child support award was excessive because it was far more than was necessary to meet the child’s reasonable needs, particularly in light parent’s each separate abilities to financially care for the child. Id., 259. The Illinois Appellate Court held that the trial corut’s overall percent award of 20 respondent’s net income was year excessive for a four child, old concluding that “where the individual parents incomes of both are more than provide sufficient to the reasonable needs of the parties’ children, taking into account the [lifestyle] the children would have absent the dissolution, the court justified is setting figure below the guideline 260. Subsequently, In Marriage Id., amount.” re Bush has been held to application have limited only where the individual parents incomes of both are more than sufficient to meet the needs of the child. Indeed, recent case examining the holding of In re Marriage Bush, Appellate the Illinois Court stated that “[w]e are aware paid that the amount cur rently exceeds monthly expenses for the entire household, but a child’s entitlement to a level of is not limited to his or her ‘shown needs.’ argu [The] ment that minor only entitled to her ‘shown [a child] rejected needs’ has been Supreme Illinois Court ... it, the reason that in effect, ignores the consid eration of the standard of living that the child would enjoyed have if the marriage had not been dissolved.” 1018, 1023, Marriage Garrett, re App. 336 Ill. 3d of 658,792 N.E.2d denied, 204 Ill. 2d 172, appeal 785 N.E.2d does present case, the defendant In the (2003). support that the does not not assert and the evidence more than suffi parents of are individual incomes both I Accordingly, of the children. cient to meet the needs Marriage Bush, in In re reasoning conclude that of case. applicable present supra, 249, is needs of the physical plurality’s focus on the “new wave” step ignores children backward of the standard significance of cases recognizes L. parents. Morgan, See living of children affluent Consistent with newer supra, 4.07 [b] [3]. basis of that, on the approach, I would conclude extraordinarily of the defendant in the high income its the trial did not abuse discretion present case, his annual cash pay percent him to ordering to “furnish his bonus additional child order wealthy advantages children with children [the parents quotation . . . .” (Internal are entitled to] Jackson, supra, Branch v. marks 427 Pa. omitted.) Super. 420.

I respectfully dissent. therefore HALL L. ET AL. LYNNE STANLEY BERGMAN

(SC 18155) Palmer, Rogers, J., Vertefeuille, Rodriguez, C. Zarella and Js.* * prior implementation policy argued This case was to the of this court to en hear all cases banc.

Case Details

Case Name: Maturo v. Maturo

Court Name: Supreme Court of Connecticut

Date Published: May 4, 2010

Citation: 995 A.2d 1

Docket Number: SC 17776

Court Abbreviation: Conn.