McKeon v. Lennon , 321 Conn. 323 ( 2016 )

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MARIA F. MCKEON v. WILLIAM P. LENNON
(SC 19470)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa and Vertefeuille, Js.
Argued January 27—officially released May 17, 2016
Campbell D. Barrett, with whom were Jon T.
Kukucka and, on the brief, Johanna S. Katz, for the
appellant (plaintiff).
Debra C. Ruel, with whom were Anne C. Dranginis
and James M. Ruel, for the appellee (defendant).
Giovanna Shay, Lucy Potter, Anne Louise Blanch-
ard, Shelley White and Steve Dembo filed a brief for
Greater Harford Legal Aid et al. as amici curiae.
Louise Truax and Leslie Jennings-Lax filed a brief
for the American Academy of Matrimonial Lawyers,
Connecticut Chapter, as amicus curiae.
Samuel V. Schoonmaker IV and Wendy Dunne
DiChristina filed a brief for the Connecticut Bar Asso-
ciation as amicus curiae.
Opinion
ZARELLA, J. In this certified appeal, we address two
important issues relating to child support orders. The
first issue is whether the Appellate Court properly con-
cluded, based on this court’s reasoning with respect to
the modification of alimony orders in Dan v. Dan, 315
Conn. 1, 10, 105 A.3d 118 (2014), that the supported
party must show circumstances beyond the increased
income of the supporting party to establish the substan-
tial change in circumstances required to justify the mod-
ification of a child support order under General Statutes
§ 46b-86 (a). The second issue is whether the trial court
should consider exercised stock options, restricted
stock and employment perquisites in calculating the
supporting party’s gross income to determine whether
there has been a substantial change in circumstances
under § 46b-86 (a). The plaintiff, Maria F. McKeon,
claims that the Appellate Court, in affirming the trial
court’s denial of her two separate motions to modify
the original child support order, incorrectly concluded
that alimony and child support orders are subject to
the same modification requirements under § 46b-86 (a),
and, therefore, the court improperly applied the reason-
ing in Dan when denying her motions. See McKeon v.
Lennon, 155 Conn. App. 423, 434, 109 A.3d 986 (2015).
The plaintiff also claims that the Appellate Court incor-
rectly concluded that the trial court had not abused its
discretion in declining to consider income from stock
options, restricted stock and employment perquisites
received by the defendant, William P. Lennon, as part
of his executive compensation package when calculat-
ing the defendant’s gross income for the purpose of
determining whether there had been a substantial
change in his financial circumstances following the dis-
solution of the parties’ marriage. See id., 440, 441. The
plaintiff thus seeks reversal of the Appellate Court’s
judgment and a remand to the trial court to consider
these sources of income in deciding the plaintiff’s
motions. The defendant agrees with the plaintiff that
the Appellate Court’s reliance on the reasoning in Dan
was improper but characterizes that reliance as dictum.
He also argues that the trial court properly calculated
his gross income without considering his stock benefits
and employment perquisites, and, therefore, the Appel-
late Court properly upheld the trial court’s conclusion
that the plaintiff did not establish the substantial change
in circumstances required for the granting of her
motions. We reverse in part the judgment of the Appel-
late Court.
The following relevant facts are set forth in the Appel-
late Court’s opinion. ‘‘[This appeal] arise[s] from a series
of postjudgment motions related to the parties’ 2007
dissolution of marriage. The plaintiff and [the] defen-
dant were married on August 29, 1981. During their
twenty-six year marriage, the parties had three children.
In 2005, the plaintiff initiated an action for dissolution
of marriage. On December 31, 2007, the court rendered
judgment dissolving the marriage . . . and entered var-
ious orders.
‘‘In the dissolution judgment, the court made several
relevant factual findings. The court found that the
defendant was a vice president at Electric Boat [Corpo-
ration], earning a base salary of $225,420, an annual
bonus, stock options, restricted stock awards, and a
pension. The court found that the plaintiff was a highly
skilled and capable corporate attorney, who in the past
had sometimes earned in excess of the defendant’s sal-
ary. In the years leading up to the divorce, the plaintiff
had worked part-time in order to be the primary care-
giver to their three children. Despite working part-time,
she had been able to earn gross income of $78,500 from
mid-July, 2007, through December 12, 2007.
‘‘The court issued various orders in connection with
the dissolution judgment, including child custody, divi-
sion of assets of the marriage, and alimony and child
support. First, the dissolution judgment set out a parent-
ing plan regarding the parties’ two minor children. The
parties were to share joint legal custody of the children,
but the plaintiff’s home would serve as the children’s
primary residence. Next, the dissolution judgment
ordered the defendant to pay the plaintiff $439 per week
in child support for the parties’ two minor children.
The dissolution judgment also ordered the parties to
each pay 50 percent of the cost of the children’s child
care, their after school care and transportation, and
their private school tuition. The judgment ordered the
parties to share all costs over $150 for the children’s
extracurricular activities, while the plaintiff was
ordered to pay for all costs under $150.
‘‘The dissolution judgment also awarded alimony to
the plaintiff in the amount of $900 per week for a period
of fourteen years. This order was modifiable, but not
terminable, upon the plaintiff’s remarriage or cohabita-
tion. [In addition] [t]he court awarded the plaintiff . . .
[an irrevocable 50 percent interest in all stock options
awarded, granted or otherwise credited to the defen-
dant as of the date of dissolution and] an irrevocable
interest in the defendant’s future annual employment
bonuses, executive stock options, and awards of
restricted stock. [Specifically] [t]he plaintiff was to
receive 50 percent of the defendant’s bonuses, stock
options, and restricted stock awarded in 2008, 2009,
and 2010. The plaintiff was to then receive 40 percent
of the defendant’s bonuses [future stock options, and
restricted stock awarded] in 2011, 2012, and 2013, and
. . . 30 percent [of the defendant’s bonuses, future
stock options, and restricted stock] awarded to him in
each year from 2014 through 2021. [The trial court
added in its memorandum of decision issued in connec-
tion with the dissolution judgment that ‘[a]ll stock
options that have been awarded, granted or otherwise
credited to the defendant prior to the dissolution of
marriage shall be divided as part of the property settle-
ment and shall not be alimony or child support.’]
‘‘In May, 2008, [less] than six months after the dissolu-
tion judgment was rendered, the plaintiff filed a motion
for modification in which she requested, inter alia, that
child support be raised from $439 per week to $1700
per week. On June 10, 2008, the court denied the motion
without a hearing. From that [ruling], the plaintiff
appealed to [the Appellate] [C]ourt, which heard argu-
ment on the matter on November 18, 2010. [See]
McKeon v. Lennon, 131 Conn. App. 585, 27 A.3d 436,
cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011). On
appeal, [the Appellate] [C]ourt concluded that the trial
court improperly [had] denied the plaintiff’s motion
without first conducting a hearing, and, therefore . . .
reversed the judgment and remanded the matter to the
trial court for further proceedings. Id., 599–600, [613–
14]. . . .
‘‘While the appeal of the 2008 motion for modification
was pending before [the Appellate] [C]ourt, the plaintiff
filed another motion for modification of child support
with the trial court on April 22, 2010. The plaintiff’s
motion requested the court to increase the defendant’s
child support obligation in light of the plaintiff’s
increased expenses, her decreased net income, and the
defendant’s increased income since the dissolution
judgment. On July 14, 2010, the defendant filed his own
motion for modification of child support on the basis
that one of their two minor children had turned eighteen
years old and had graduated [from] high school. The
court scheduled a hearing on both motions in May, 2011.
‘‘On May 25, May 26, and June 1, 2011, the trial court
held a contested hearing on the plaintiff’s and the defen-
dant’s motions for modification. On October 20, 2011,
the court . . . [granted] the defendant’s 2010 motion
for modification and den[ied] the plaintiff’s 2010 motion
for modification. The court ordered the defendant’s
child support obligation to be reduced from $439 per
week to $400 per week. This modification reflected the
change from support for two minor children, to support
for only one minor child. From [these rulings], the plain-
tiff appealed . . . .
‘‘On April 25, 2012, pursuant to [the Appellate]
[C]ourt’s remand, the trial court held a contested hear-
ing on the plaintiff’s 2008 motion for modification. Prior
to the hearing, the plaintiff had also filed a motion
for attorney’s fees and a motion for contempt. At the
hearing, the parties presented evidence on all three
motions. As a result of the complicated procedural his-
tory of this case, the court was required to determine
whether it could consider all changes in circumstances
since the 2007 dissolution judgment, or whether it was
limited to looking back to only 2011, when the court
ruled on the 2010 motions for modification.
‘‘In November, 2012, the court issued its memoran-
dum of decision, denying the plaintiff’s motion for modi-
fication of child support, motion for attorney’s fees,
and motion for contempt. In doing so, the court consid-
ered the circumstances of the parties going back to
the 2007 dissolution judgment [through April 25, 2012].
Further, the court found that the 2011 child support
modification order was in accordance with the child
support guidelines and remained equitable and appro-
priate given the circumstances of the case. From these
[rulings], the plaintiff also appealed . . . .’’ (Footnote
omitted.) McKeon v. Lennon, supra, 155 Conn. App.
425–29.
On appeal to the Appellate Court, the plaintiff
claimed, inter alia, that the trial court improperly had
granted the defendant’s motion for modification of child
support, denied her motions for modification of child
support, modified the defendant’s child support obliga-
tion by decreasing his weekly obligation and denied
her motions for contempt and for attorney’s fees. Id.,
425. The Appellate Court disagreed and affirmed the
trial court’s rulings on all issues. Id., 425, 451. With
respect to the plaintiff’s motions for an upward modifi-
cation of the defendant’s child support obligation, the
Appellate Court concluded that ‘‘both alimony and child
support orders are subject to the same modification
requirements under § 46b-86 (a),’’ and that, ‘‘under Dan,
the plaintiff must show additional circumstances,
beyond the defendant’s increased income, to establish
a substantial change in circumstances justifying a modi-
fication of child support.’’ Id., 434. After considering
the increase in the defendant’s income, the Appellate
Court further concluded that the trial court had not
abused its discretion in denying the plaintiff’s motions.
Id. This certified appeal, relating only to the Appellate
Court’s determination regarding the trial court’s rulings
on the plaintiff’s motions for modification of the defen-
dant’s child support obligation, followed.1
I
The plaintiff first claims that the Appellate Court
incorrectly concluded that alimony and child support
orders are subject to the same modification require-
ments, and, therefore, the court improperly applied the
reasoning in Dan concerning alimony orders in
affirming the trial court’s denial of her motions for
modification of child support. She claims that, by
extending this court’s holding in Dan to child support
orders, the Appellate Court has profoundly altered Con-
necticut law in a manner that will have a negative impact
on thousands of Connecticut families. The defendant
agrees with the plaintiff that the Appellate Court
improperly relied on Dan in affirming the trial court’s
denial of her motions but characterizes that reliance as
dictum. He also points out that the trial court never
concluded that alimony and child support orders are
subject to the same modification requirements when
determining that the plaintiff had failed to establish a
substantial change in circumstances at the hearing on
her motions. We conclude that the reasoning in Dan
regarding alimony orders does not apply to child sup-
port orders.
It is well established that interpretation of the statu-
tory scheme governing child support orders in domestic
relations cases constitutes a question of law. See, e.g.,
Maturo v. Maturo, 296 Conn. 80, 88, 995 A.2d 1 (2010);
Unkelbach v. McNary, 244 Conn. 350, 357, 710 A.2d
717 (1998). Accordingly, whether the Appellate Court
properly interpreted the statutory scheme in the present
case is subject to our plenary review. See, e.g., Maturo
v. Maturo, supra, 88.
We begin with § 46b-86 (a), which addresses the mod-
ification of alimony and child support orders.2 The stat-
ute provides in relevant part: ‘‘[A]ny final order for the
periodic payment of permanent alimony or support
. . . may, at any time thereafter, be continued, set
aside, altered or modified by the court upon a showing
of a substantial change in the circumstances of either
party . . . .’’ General Statutes § 46b-86 (a). In Dan, we
concluded that ‘‘an increase in the supporting spouse’s
income, standing alone, ordinarily will not justify the
granting of a motion to modify an alimony award . . .
[because] [t]here is little, if any, legal or logical support
. . . for the proposition that a legitimate purpose of
alimony is to allow the supported spouse’s standard of
living to match the supporting spouse’s standard of
living after the divorce, when the supported spouse is no
longer contributing to the supporting spouse’s income
earning efforts. Rather, the weight of authority is to the
contrary. We are persuaded by the reasoning of these
cases, namely, that, when the amount of the original
alimony award was and continues to be sufficient to
fulfill the purpose of the award, whether that purpose
was to maintain permanently the standard of living of
the supported spouse at the level that he or she enjoyed
during the marriage or to provide temporary support
in order to allow the supported spouse to become self-
sufficient, an increase in the income of the supporting
spouse, standing alone, is not a sufficient justification
to modify an alimony award. In short, when the sole
change in circumstances is an increase in the income
of the supporting spouse, and when the initial award
was and continues to be sufficient to fulfill the
intended purpose of that award, we can conceive of
no reason why the supported spouse, whose marriage
to the supporting spouse has ended and who no longer
contributes anything to the supporting spouse’s income
earning efforts, should be entitled to share in an
improved standard of living that is solely the result
of the supporting spouse’s efforts.’’ (Citations omitted;
emphasis altered; footnotes omitted.) Dan v. Dan,
supra, 315 Conn. 10–15.
In contrast, child support orders are calculated under
the Connecticut child support guidelines and are based
on the income shares model;3 Child Support and Arrear-
age Guidelines (August 1, 2005) preamble, p. ii; which
has a different purpose. The income shares model con-
siders the income of both parents and ‘‘presumes that
the child should receive the same proportion of parental
income as he or she would have received if the parents
lived together.’’ Id.; accord Maturo v. Maturo, supra, 296
Conn. 93. Accordingly, ‘‘the determination of a parent’s
child support obligation must account for all of the
income that would have been available to support the
children had the family remained together.’’ Jenkins v.
Jenkins, 243 Conn. 584, 594, 704 A.2d 231 (1998); see
also Dowling v. Szymczak, 309 Conn. 390, 408, 72 A.3d
1 (2013) (‘‘the calculation of child support is based on
the income shares model and the parties’ combined net
income rather than on the actual costs associated with
raising a child’’). This means that, unlike when consider-
ing a request for the modification of an alimony order,
the trial court may consider a substantial increase in
the supporting spouse’s income, standing alone, as suffi-
cient justification for granting a motion to modify a
child support order to ensure that the child receives
the same proportion of parental income that he or she
would have received if the parents had remained
together.4
We therefore conclude,5 in light of the different pur-
poses of alimony and child support, that the Appellate
Court improperly relied on Dan in determining that
‘‘both alimony and child support orders are subject
to the same modification requirements under § 46b-86
(a)’’; McKeon v. Lennon, supra, 155 Conn. App. 434;
and that the court improperly concluded that the plain-
tiff was required to show additional circumstances,
beyond the increase in the defendant’s income, to justify
modification of the child support award.6 See id.,
434–36.
II
The plaintiff next claims that the Appellate Court
improperly upheld the trial court’s denial of her motions
for modification because the trial court did not consider
the defendant’s exercised stock options, restricted
stock or employment perquisites for the years in ques-
tion when calculating his gross annual income.7 The
plaintiff thus argues that the conclusions of the trial
court and the Appellate Court that the plaintiff failed
to establish a substantial change in the defendant’s
financial circumstances were not based on a correct
understanding of the components of his income. The
defendant responds that the trial court acted within its
discretion in concluding that the plaintiff had failed to
establish a substantial change in his financial circum-
stances and that, even if the trial court had considered
income from the defendant’s stock benefits and employ-
ment perquisites, a review of the guidelines worksheet
entered into evidence by the plaintiff herself demon-
strates that the court would not have found a change
in his circumstances sufficient to justify an increase in
his child support obligation. The defendant also argues
that the plaintiff has ignored the fact that he pays one
half of their youngest son’s private secondary education
expenses as child support. We agree in part with each
of the parties.
The following additional facts are relevant to our
resolution of this claim. On January 18, 2008, less than
three weeks after the judgment of dissolution was
entered, the plaintiff filed a motion for reconsideration
and/or reargument, in which she raised numerous
issues pertaining to division of the parties’ pension
plans, the children’s medical coverage, life insurance,
child support, asset valuation, account transfers and
taxes. With respect to child support, the plaintiff’s only
claim relating to the trial court’s calculation of the
defendant’s gross income was that the court had not
included the monetary value of the defendant’s employ-
ment perquisites and his in-kind compensation. Neither
party appealed from the trial court’s denial of this
motion.
Thereafter, in May, 2008, and April, 2010, the plaintiff
filed motions for modification of the child support
order. In its memorandum of decision on the plaintiff’s
2010 motion, which was the first motion decided, the
trial court found that the defendant’s base salary in
2011 was $260,000 and that his annual bonus was
$175,000. The court also found that, although the defen-
dant had exercised stock options in the amount of
$190,361 after the judgment of dissolution was ren-
dered, the options were subject to the dissolution
court’s property distribution order that stock options
and restricted stock awards granted to the defendant
prior to the dissolution judgment be divided as property
and not be considered as alimony or child support. The
court thus concluded that any income the defendant
received from the exercised stock options could not
be counted because doing so would result in ‘‘double-
dipping.’’ (Internal quotation marks omitted.) Maturo
v. Maturo, supra, 296 Conn. 97 n.9. The court further
found that the defendant’s annual bonus of $175,000
had been considered by the court and divided between
the parties at the time of the dissolution judgment, and,
therefore, it also could not be considered a second time
in determining whether there had been a change in
the defendant’s circumstances. The court finally found,
with respect to $59,484 in employment perquisites the
defendant received in 2011, that the plaintiff’s failure
to identify how much, if any, of that amount constituted
basic maintenance or special needs, which are consid-
ered a component of gross income as in-kind compensa-
tion under the governing regulations; see Regs., Conn.
State Agencies § 46b-215a-1 (11) (A) (vi); prevented the
court from including any of this amount in its calcula-
tion of the defendant’s gross income. The court thus
concluded that, because the defendant’s base salary
had increased only $35,000, from $225,000 on the date
of the dissolution judgment to $260,000 in 2011, there
had been no substantial increase in his income under
the child support guidelines.
The court conducted a similar analysis approximately
one year later in its memorandum of decision on the
plaintiff’s 2008 motion for modification. The court
found that the defendant’s base salary as of April 25,
2012, was $270,000 and that he had received a bonus
in 2012 of $185,000. The court again noted the provision
in the dissolution judgment order that stock options
and restricted stock awards granted to the defendant
prior to the dissolution judgment were to be divided
as part of the property settlement and not considered
as alimony or child support. The court thus concluded
that, although the defendant continued to receive and
exercise stock options as part of his executive compen-
sation, his past and future options were subject to the
court’s property distribution order and could not be
counted as income, as doing so would result in double-
dipping. The court added that it could not consider
the $55,807 in employment perquisites the defendant
received in 2012 because the plaintiff had failed to iden-
tify which items satisfied the definition of eligible per-
quisites in the statutory regulations. Although the court
did not state, as it did in its memorandum of decision
on the 2010 motion for modification, that it would not
count the defendant’s bonus because the bonus had
been considered and divided at the time of the dissolu-
tion judgment, it ultimately concluded that the plaintiff
had failed to show a substantial change in the defen-
dant’s circumstances from the date of the dissolution
judgment to the present.
The plaintiff appealed from the trial court’s rulings
on her motions for modification to the Appellate Court,
which consolidated the appeals for review.8 See
McKeon v. Lennon, supra, 155 Conn. App. 427 and n.1.
The Appellate Court affirmed the rulings with little anal-
ysis. The court briefly referred to the trial court’s find-
ings regarding the increase in the defendant’s base
salary and bonus in its decision on the plaintiff’s 2010
motion. See id., 433–34. It then concluded that the plain-
tiff had not established that there had been a substantial
change in the defendant’s circumstances because,
under Dan, the plaintiff was required to show additional
circumstances beyond the defendant’s increased
income to justify an upward modification of his child
support obligation.9 See id., 434. With respect to the
plaintiff’s 2008 motion, the Appellate Court also con-
cluded, after an equally perfunctory reference to the
trial court’s findings on the defendant’s base salary and
bonuses during the years following the dissolution judg-
ment, that the plaintiff had not established a substantial
change in the defendant’s circumstances. Id., 435–36.
The Appellate Court did not address the trial court’s
findings regarding the defendant’s employment perqui-
sites in its discussion of the plaintiff’s motions. See
generally id., 434–36.
The Appellate Court subsequently considered the
trial court’s exclusion of the defendant’s exercised
stock options and restricted stock from its income cal-
culations when ruling on the defendant’s motion for a
downward modification of his child support obligation.
Id., 438. The court noted that the trial court’s exclusion
of the stock benefits was based on its finding that the
benefits previously had been considered and divided
as part of the property settlement. See id., 438–40. In
response to the plaintiff’s argument that income from
the stock options and restricted stock constituted
deferred compensation, the Appellate Court stated that
it was the plaintiff’s burden to distinguish between
stock awarded before and after the dissolution, and
that the plaintiff had failed to present evidence that the
stock options the defendant had exercised during the
period in question were awarded after the dissolution.
See id., 439–40. With respect to the restricted stock,
the court explained that, in addition to the fact that
there was evidence indicating that the stock at issue
was part of the property distribution, the defendant’s
testimony regarding when the stock vested indicated
that it had not vested at the time of the plaintiff’s
motions. See id. The Appellate Court thus concluded
that the trial court properly had excluded the exercised
stock options and restricted stock from the defendant’s
gross income. Id., 440. The Appellate Court also con-
cluded, with respect to the defendant’s employment
perquisites, that there was ‘‘nothing in the record to
undermine . . . confidence in the court’s factual find-
ings, and [it thus] defer[red] to [the trial court’s] sound
judgment in reaching its conclusions.’’ Id., 443.
We begin with the standard of review. ‘‘The well set-
tled standard of review in domestic relations cases is
that this court will not disturb trial court orders unless
the trial court has abused its legal discretion or its
findings have no reasonable basis in the facts. . . .
[T]he foundation for this standard is that the trial court
is in a clearly advantageous position to assess the per-
sonal factors significant to a domestic relations case
. . . . In determining whether a trial court has abused
its broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action. . . . Notwithstanding the
great deference accorded the trial court in dissolution
proceedings, a trial court’s ruling . . . may be reversed
if, in the exercise of its discretion, the trial court applies
the wrong standard of law. . . . The question of
whether, and to what extent, the child support guide-
lines apply, however, is a question of law over which
this court should exercise plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Tuckman
v. Tuckman, 308 Conn. 194, 200, 61 A.3d 449 (2013).
A
We turn first to the question of whether the Appellate
Court properly upheld the trial court’s decision to
exclude the defendant’s exercised stock options and
restricted stock from its calculation of his gross income
for the years in question. General Statutes § 46b-84 (a)
provides in relevant part: ‘‘Upon or subsequent to the
annulment or dissolution of any marriage or the entry
of a decree of legal separation or divorce, the parents
of a minor child of the marriage, shall maintain the
child according to their respective abilities, if the child
is in need of maintenance. . . .’’ The statute further
provides: ‘‘In determining whether a child is in need of
maintenance and, if in need, the respective abilities of
the parents to provide such maintenance and the
amount thereof, the court shall consider the age, health,
station, occupation, earning capacity, amount and
sources of income, estate, vocational skills and employ-
ability of each of the parents, and the age, health, sta-
tion, occupation, educational status and expectation,
amount and sources of income, vocational skills,
employability, estate and needs of the child.’’ General
Statutes § 46b-84 (d).
In addition to these provisions regarding the obliga-
tion of parents to provide child support, the legislature
has established a commission to issue child support
guidelines ‘‘to ensure the appropriateness of criteria for
the establishment of child support awards . . . . Such
guidelines shall ensure . . . that current support . . .
shall be based on the income of both parents and the
obligor’s ability to pay.’’ General Statutes § 46b-215a (a).
As previously discussed, the guidelines ‘‘are predicated
upon the concept that children should receive the same
proportion of parental income that they would have
received had the family remained intact. Child Support
and Arrearage Guidelines, [supra, preamble, p. ii].
Toward that end, the guidelines are income driven,
rather than expense driven. At each income level, the
guidelines allocate a certain percentage of parental
income to child support. The percentage allocations
contained in the guidelines aim to reflect the average
proportions of income spent on children in households
of various income and family sizes, and contain a built-
in self-support reserve for the obligor. [See id., p. iii].
The result is that the guidelines incorporate an alloca-
tion of resources between parents and children that the
legislature has decided is the appropriate allocation.
Consequently, our interpretation of the guidelines must
seek to preserve this allocation.’’ Unkelbach v. McNary,
supra, 244 Conn. 357–58. In order to achieve this goal,
however, ‘‘the determination of a parent’s child support
obligation must account for all of the income that would
have been available to support the children had the
family remained together.’’ (Emphasis added.) Jenkins
v. Jenkins, supra, 243 Conn. 594. ‘‘[T]he party seeking
the modification bears the burden of demonstrating
that such a change has occurred.’’ (Internal quotation
marks omitted.) Olson v. Mohammadu, 310 Conn. 665,
672, 81 A.3d 215 (2013).
Section 46b-215a-1 (11) of the Regulations of Con-
necticut State Agencies defines ‘‘gross income’’ as ‘‘the
average weekly earned and unearned income from all
sources before deductions, including but not limited to
the items listed in subparagraph (A) of this subdivision,
but excluding the items listed in subparagraph (B) of
this subdivision.’’ Subparagraph (A) lists twenty-two
sources of income,10 one of which is ‘‘profit sharing,
[and] deferred and incentive-based compensation
. . . .’’ Regs., Conn. State Agencies § 46b-215a-1 (11)
(A) (iv). Subparagraph (B) lists six sources of excluded
income,11 none of which is relevant in the present case.
In considering these income inclusions and exclusions,
the preamble to the child support guidelines instructs
that ‘‘gross income includes all kinds of earned and
unearned income not specifically excluded’’ and that
the ‘‘list of inclusions is illustrative and not exhaustive.’’
Child Support and Arrearage Guidelines, supra, pream-
ble, p. ix.
Applying these guidelines, we conclude that exer-
cised stock options and restricted stock that has
vested12 ordinarily should be considered components
of a party’s gross income for purposes of calculating
child support because they constitute ‘‘deferred or
incentive-based compensation’’; Regs., Conn. State
Agencies § 46b-215a-1 (11) (A) (iv); and are not specifi-
cally excluded under the guidelines. The fact that the
applicable guidelines in 2005 did not define deferred or
incentive-based compensation as including such bene-
fits is irrelevant. Stock options always have been under-
stood as a form of incentive-based compensation. See,
e.g., Black’s Law Dictionary (6th Ed. 1990) (stock option
is ‘‘often granted to management and key employees
as a form of incentive compensation’’). Moreover, ‘‘[w]e
have previously interpreted broadly the definition of
gross income contained in the guidelines to include
items that, in effect, increase the amount of a parent’s
income that is available for child support purposes.’’13
Unkelbach v. McNary, supra, 244 Conn. 360, citing Jen-
kins v. Jenkins, supra, 243 Conn. 591–95.
In the present case, the trial court explained in its
memorandum of decision on the plaintiff’s 2010 motion
for modification that it did not include $190,361 from
the defendant’s exercised stock options as a component
of his income because the options were subject to the
dissolution court’s property distribution order that
stock options and restricted stock awards granted to
the defendant prior to the dissolution judgment be
divided as property and not be considered as alimony
or child support. Neither party took issue with this
provision of the dissolution order when the plaintiff
filed her motion for reconsideration and/or reargument,
and neither party appealed from the dissolution judg-
ment on that ground. Accordingly, given the parties’
acceptance of this provision, the Appellate Court cor-
rectly determined that the trial court had not abused
its discretion in excluding the exercised stock options
and restricted stock from the defendant’s gross income
on the ground that they were part of the original prop-
erty distribution order.
The trial court’s reasoning when deciding the plain-
tiff’s 2008 motion, in which the court considered the
defendant’s income from the date of the dissolution
judgment through April 25, 2012, was more ambiguous.
Although the court again referred to the fact that the
dissolution order provided that stock benefits awarded
to the defendant prior to the dissolution judgment were
to be divided as part of the property settlement and
not considered as alimony or child support, the court
did not state how much income the defendant had
received from the exercised stock options or the
restricted stock and did not make a finding as to
whether this income was derived from stock benefits
awarded prior to or following the dissolution judgment.
The court merely stated that the defendant had contin-
ued to receive and exercise stock options as part of his
executive compensation and that, because his past and
future stock options were subject to the court’s prop-
erty distribution order, the funds received from their
exercise could not be counted as income. For the rea-
sons previously discussed, we disagree with the trial
court that the defendant’s income from the exercised
stock options and restricted stock awarded as compen-
sation following the dissolution judgment is barred from
inclusion in the defendant’s gross income by the dissolu-
tion order. Thus, to the extent the defendant received
income from those sources, such income should have
been counted as part of his gross income for the years
in question. For example, the record indicates that, in
the year 2012, the defendant received more than $53,000
from the vesting on January 3, 2012, of restricted stock
that he was awarded on March 5, 2008, following the
dissolution judgment. There may be additional evidence
in the record that the defendant received income from
other exercised stock options or restricted stock that
vested following the dissolution judgment and thus was
not part of the property distribution. Accordingly, in
light of this ambiguity in the trial court’s decision, we
conclude that the Appellate Court incorrectly deter-
mined that the trial court, in its ruling on the plaintiff’s
2008 motion for modification, had not abused its discre-
tion in excluding the income derived from these sources
when calculating the defendant’s gross income.14
Rather, the case must be remanded to the trial court
for the purpose of reconsidering the plaintiff’s 2008
motion for an upward modification of the defendant’s
child support obligation in light of our conclusion that
Dan does not apply and that additional findings must
be made as to whether any of the exercised stock
options and restricted stock that vested during the time
in question were awarded following the dissolution
judgment, and, if so, the value of those benefits.
B
We next consider the trial court’s decision to omit
the defendant’s alleged employment perquisites from
its calculation of the defendant’s gross income when
deciding the plaintiff’s motions for modification. Sec-
tion 46b-215a-1 (11) (A) (vi) of the Regulations of Con-
necticut State Agencies includes in its definition of
gross income ‘‘employment perquisites and in-kind
compensation (any basic maintenance or special need
such as food, shelter or transportation provided on a
recurrent basis in lieu of or in addition to salary or
wages) . . . .’’
The record indicates that the defendant received
$59,484 in employment perquisites in 2011 and $55,807
in 2012, which, according to the plaintiff’s exhibits, con-
sisted almost entirely of employer contributions to the
defendant’s retirement and health insurance plans.15
The child support guidelines, however, provide that
such contributions are to be deducted from a parent’s
gross income in order to determine the net income
available for child support. See Regs., Conn. State Agen-
cies § 46b-215a-2b (c) (2) (C) and (F) (repealed July 1,
2015) (providing for deductions from parent’s gross
income of employer contributions to mandatory retire-
ment plans and to medical, hospital, dental or health
insurance premium payments for parent and parent’s
legal dependents).
In the present case, the trial court excluded the
employment perquisites from its calculations of the
defendant’s gross income when ruling on both motions
because it concluded that the plaintiff had failed to
meet her burden of identifying how much, if any, of the
perquisites constituted food, shelter, transportation or
other basic needs pursuant to § 46b-215a-1 (11) (A)
(vi) of the Regulations of Connecticut State Agencies.
Although this factual finding and the trial court’s ulti-
mate decision to exclude the employment perquisites
were correct, we also note that most of the perquisites
would have been deducted in any event under § 46b-
215a-2b (c) (2) (C) and (F) when calculating the parties’
net income. We thus conclude that the Appellate Court
properly determined that the trial court did not abuse
its discretion in excluding the employment perquisites
from its calculation of the defendant’s gross income in
its rulings on the plaintiff’s motions for modification.16
The judgment of the Appellate Court is reversed with
respect to its determination that alimony and child sup-
port orders are subject to the same modification
requirements, and its determination that the trial court,
in ruling on the plaintiff’s 2008 motion for modification
of child support, did not abuse its discretion in exclud-
ing income derived from stock options awarded and
exercised and restricted stock awarded and vesting fol-
lowing the dissolution judgment in its calculation of
the defendant’s gross income, and the case is remanded
to the Appellate Court with direction to remand the
case to the trial court to make findings as to whether
any of the exercised stock options and restricted stock
that vested postdissolution were awarded as compensa-
tion following the dissolution judgment, and, if so, how
much income was derived from those sources, and to
reconsider the plaintiff’s 2008 motion for modification
in light of those findings and in accordance with our
determination that child support orders are not subject
to the same modification requirements as alimony
orders; the judgment of the Appellate Court is affirmed
in all other respects.
In this opinion the other justices concurred.
1
This court granted the plaintiff’s petition for certification to appeal,
limited to the following issue: ‘‘Did the Appellate Court properly determine,
based upon this court’s decision in Dan v. Dan, [supra, 315 Conn. 1], that
the trial court correctly determined that the plaintiff had not established a
substantial change in circumstances in regard to her 2008 and 2010 motions
for modification [of child support]?’’ McKeon v. Lennon, 317 Conn. 901, 114
A.3d 166 (2015).
2
Although alimony and child support orders are calculated on the basis
of several overlapping factors, the court also considers several additional
factors specific to spouses and children, respectively, in calculating such
orders. For example, under General Statutes § 46b-82 (a), the court deter-
mines whether alimony should be awarded, and the amount and duration
of the award, after considering the length of the marriage, the causes for
its termination, ‘‘the age, health, station, occupation, amount and sources
of income, earning capacity, vocational skills, education, employability,
estate and needs of each of the parties and the award, if any, which the
court may make pursuant to section 46b-81, and, in the case of a parent to
whom the custody of minor children has been awarded, the desirability and
feasibility of such parent’s securing employment.’’ In comparison, the court
calculates child support pursuant to the child support guidelines and the
factors set forth in General Statutes § 46b-84 (d), which include ‘‘the respec-
tive abilities of the parents to provide such maintenance and the amount
thereof,’’ and ‘‘the age, health, station, occupation, earning capacity, amount
and sources of income, estate, vocational skills and employability of each
of the parents, and the age, health, station, occupation, educational status
and expectation, amount and sources of income, vocational skills, employ-
ability, estate and needs of the child.’’
3
‘‘The guidelines are accompanied by a preamble that is not part of the
regulations but is intended to assist in their interpretation.’’ Maturo v.
Maturo, supra, 296 Conn. 92–93.
4
General Statutes § 46b-86 (a) clarifies that ‘‘[t]here shall be a rebuttable
presumption that any deviation of less than fifteen per cent from the child
support guidelines is not substantial and any deviation of fifteen per cent
or more from the guidelines is substantial.’’ Accordingly, an increase or
decrease in the supporting party’s income that satisfies this standard presum-
ably would justify a request for modification of child support. The statute
nonetheless provides that the court shall continue to consider other factors
when evaluating such a request: ‘‘In determining whether to modify a child
support order based on a substantial deviation from such child support
guidelines the court shall consider the division of real and personal property
between the parties set forth in the final decree and the benefits accruing
to the child as the result of such division. After the date of judgment,
modification of any child support order issued before, on or after July 1, 1990,
may be made upon a showing of such substantial change of circumstances,
whether or not such change of circumstances was contemplated at the time
of dissolution.’’ General Statutes § 46b-86 (a).
5
We note that all of the amici curiae agree with our conclusion.
6
The Appellate Court initially observed that the plaintiff’s earning capacity
had remained the same, the plaintiff had failed to establish a significant
increase in her expenses and, even though the defendant’s base salary and
bonuses had increased since the dissolution judgment, the increase was not
substantial. McKeon v. Lennon, supra, 155 Conn. App. 432–34. The court
then cited Dan in concluding that the plaintiff must show additional circum-
stances, beyond the defendant’s increased income, to establish the ‘‘substan-
tial change in circumstances’’ required to justify modification of the child
support order. Id., 434.
7
We address this issue because we view it as implicated in the certified
question of whether the Appellate Court properly relied on the reasoning
in Dan when concluding that the plaintiff had not established a substantial
change in circumstances sufficient to support her 2008 and 2010 motions
for modification of child support, and both parties have briefed the issue
extensively. See footnote 1 of this opinion. In contrast, we do not consider
the effect of the trial court’s exclusion of the defendant’s bonus from its
calculation of his gross income because that issue was not directly briefed
by the parties, although the plaintiff refers to the bonus as contributing to
the increase in the defendant’s income following the dissolution.
8
As the Appellate Court noted, these appeals were consolidated with
several other appeals by the plaintiff from various rulings by the trial court.
See McKeon v. Lennon, supra, 155 Conn. App. 427 n.1.
9
Despite this assertion, the Appellate Court appeared to agree with the
trial court’s analysis, which was conducted prior to the issuance of this
court’s decision in Dan, and concluded that there had not been a substantial
increase in the defendant’s income under the guidelines. See McKeon v.
Lennon, supra, 155 Conn. App. 434.
10
These are: ‘‘(i) salary; (ii) hourly wages for regular, overtime and addi-
tional employment not to exceed 45 total paid hours per week; (iii) commis-
sions, bonuses and tips; (iv) profit sharing, deferred and incentive-based
compensation and severance pay; (v) tribal stipends and incentives; (vi)
employment perquisites and in-kind compensation (any basic maintenance
or special need such as food, shelter or transportation provided on a recur-
rent basis in lieu of or in addition to salary or wages); (vii) military personnel
fringe benefit payments; (viii) benefits received in place of earned income
including, but not limited to, workers’ compensation benefits, unemploy-
ment insurance benefits, strike pay and disability insurance benefits; (ix)
veterans’ benefits; (x) Social Security benefits paid to the parent for the
parent’s own needs, provided when the parent whose income is being deter-
mined receives both Supplemental Security Income (SSI) and Social Security
disability or retirement benefits, the Social Security income inclusion shall
not exceed $5 per week; (xi) Social Security dependency benefits paid on
behalf of a child whose support is being determined, which are based on
the earnings record of the parent whose income is being determined; (xii)
net proceeds from contractual agreements; (xiii) pension and retirement
income; (xiv) rental income after deduction of reasonable and necessary
expenses; (xv) estate or trust income; (xvi) royalties; (xvii) interest, divi-
dends and annuities; (xviii) self-employment earnings, after deduction of
all reasonable and necessary business expenses; (xix) alimony being paid
by an individual who is not a party to the support determination; (xx)
adoption subsidy benefits received by the custodial parent for the child
whose support is being determined; (xxi) lottery and gambling winnings,
prizes and regularly recurring gifts (except as provided in subparagraph [B]
[vi] of this subdivision); and (xxii) education grants (including fellowships
or subsidies, to the extent taxable as income under the Internal Revenue
Code).’’ Regs., Conn. State Agencies § 46b-215a-1 (11) (A).
11
These are: ‘‘(i) support received on behalf of a child who is living in
the home of the parent whose income is being determined; (ii) Supplemental
Security Income (SSI) payments, including those received on behalf of a
child who is living in the home of the parent whose income is being deter-
mined; (iii) Social Security disability or Social Security retirement benefits
in excess of $5 per week, when the parent also receives SSI; (iv) federal,
state and local public assistance grants; (v) earned income tax credit; and
(vi) the income and regularly recurring contributions or gifts of a spouse
or domestic partner.’’ Regs., Conn. State Agencies § 46b-215a-1 (11) (B).
12
Restricted stock is considered income in the year that it vests rather
than the year in which it is exercised. See Maturo v. Maturo, supra, 296
Conn. 97–98 n.9.
13
To the extent any ambiguity remains, the amended 2015 child support
guidelines have settled the point by clarifying that incentive-based income
includes ‘‘stock options, restricted stock, restricted stock units, phantom
stock, stock appreciation rights and other forms of delayed or deferred
compensation.’’ Child Support and Arrearage Guidelines (July 1, 2015) pre-
amble, p. xvi.
14
In light of the parties’ acceptance of the provision in the present dissolu-
tion decree that the defendant’s stock options and restricted stock ‘‘shall
be divided as part of the property settlement and shall not be alimony or
child support’’; (emphasis added); we reject as irrelevant the plaintiff’s
arguments that (1) the Appellate Court misapplied our case law on the trial
court’s loss of jurisdiction over property distributed in accordance with a
dissolution decree, (2) the trial court erroneously determined that to include
income from stock options and restricted stock awarded prior to the dissolu-
tion judgment would be double-dipping, and (3) the plaintiff was deprived
of the fairness and consistency required by the child support guidelines
because the erroneous calculation of the defendant’s income resulted in a
child support order based on an incorrect presumptive range. If the plaintiff
did not agree with one or more provisions in the dissolution decree, she
should have sought to preclude them from the decree or filed an appeal
from the dissolution judgment on that ground. Additionally, to the extent
the plaintiff relies on Maturo for the proposition that income from stock
options and restricted stock distributed as property should be included in
the defendant’s gross income, that reliance was improper because the court
in Maturo did not directly discuss that issue, and there is no indication in
Maturo whether the dissolution decree in that case included a provision
similar to the provision at issue in the present case, which provided that
the stock benefits were part of the property settlement and not to be consid-
ered as alimony or child support. See Maturo v. Maturo, supra, 296 Conn.
97–98 n.9.
15
For example, the record indicates that, in 2012, the defendant received
$55,807 in employment perquisites consisting of $39,344 in contributions to
his retirement plans and $16,463 in contributions to his health and other
insurance premiums. Of that $16,463, $2219 was allocated to various life,
accident and disability insurance premiums.
16
Because they are outside the scope of the certified question, we do not
address the defendant’s arguments that his child support obligation includes
payment of one half of his youngest child’s secondary private school
expenses or that the plaintiff’s income worksheet indicates that, even if the
trial court had considered the stock benefits, his support obligation would
have remained within the proper range.