LeSueur v. LeSueur ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
JANINE LESUEUR v. ANDREW LESUEUR
(AC 39759)
Lavine, Prescott and Eveleigh, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting the defendant’s motion for a modification of custody and child
support, and denying her motion for a modification of unallocated ali-
mony and child support. Held:
1. The trial court improperly granted the defendant’s motion to modify child
support, as the court’s factual findings regarding the plaintiff’s income
were clearly erroneous: there was no legally proper evidentiary basis
before the court to support its determination of the plaintiff’s gross or
net weekly income at the time it considered the motions for modification,
as the court calculated the plaintiff’s child support share on the basis
of her income that included alimony, which is not permitted by our
child support statutes or regulations, and although the defendant claimed
that any error was harmless and had a de minimis impact on the court’s
order that the plaintiff pay him weekly child support in that the difference
between the child support the court ordered the plaintiff to pay and
what an accurate determination of her weekly income required her to
pay may not have been great, the evidentiary basis of the court’s order
was unclear and the error was harmful, as the plaintiff’s presumptive
share of support may have been less than the court’s order had the
court not included alimony in its calculation of the parties’ combined
weekly income.
2. The trial court did not abuse its discretion by terminating the defendant’s
child support obligation retroactively to September 2, 2015: contrary to
the plaintiff’s claim, that court did not lack sufficient information to
calculate the parties’ financial circumstances as of September 2, 2015,
as it had information pertaining to the parties’ financial circumstances
in June, 2015, there was no evidence in the record indicating that the
plaintiff’s financial circumstances had changed during the summer or
fall of 2015, except that she no longer had custody of the parties’ son
since August, 2015, and the plaintiff admitted that her full-time employ-
ment did not change and her salary was not reduced until she filed the
motion for modification of unallocated alimony and child support in
February, 2016; moreover, the plaintiff failed to demonstrate that she
required child support in order to provide for the necessary expenses
of the parties’ son, as she presented no evidence that the defendant,
who was the primary custodial parent, was not providing for their son’s
necessary expenses for food, shelter and clothing, and certain of the
expenses incurred by the plaintiff were typical of those incurred by any
noncustodial parent during visitation or were voluntary, and not the
necessary expenses contemplated by case law and statute.
3. The trial court did not misconstrue the parties’ separation agreement;
that court properly determined that the provision of the agreement
regarding a cap and the tuition limit of a four year college degree from
within the Connecticut state university system did not apply because
the parties and their children had mutually agreed on the postsecondary
institutions the children would attend, and the plaintiff’s construction
of the agreement that after the family mutually agreed on the appropriate
educational institutions for their children, the parties would not pay the
cost of tuition that exceeded that of the cap would undermine the
purpose of the agreement to have the parties and their children mutually
agree on the appropriate postsecondary educational institutions the
children should attend.
4. The trial court did not abuse its discretion in denying the plaintiff’s motion
to modify unallocated alimony and child support: although the plaintiff
claimed that the trial court, which had determined that a reduction
in her salary constituted a substantial change in circumstances, was
obligated to consider all of the statutory (§ 46b-82) factors in ordering
alimony in accordance with the needs and financial resources of the
parties, the plaintiff failed to consider that the trial court stated that in
ruling on the motion to modify unallocated alimony and child support
it had considered the relevant statutes and case law and did not need
to make explicit reference to the statutory criteria that it considered in
making its decision; moreover, because the fundamental purpose of
child support is to provide for the care and well-being of minor children,
and child support follows the child, the plaintiff’s claim that the amount
of money she received from the defendant was reduced due to the fact
that she no longer was receiving child support for the parties’ daughter
was unavailing, as the court found that the unallocated support the
plaintiff was receiving continued to be sufficient to fulfill its intended
purpose to equalize the income of the parties and support the children.
Argued March 23—officially released December 4, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Hon.
Stanley Novack, judge trial referee; judgment dissolving
the marriage and granting certain other relief; there-
after, the court, Tindill, J., granted the defendant’s
motion for modification of custody and child support;
subsequently, the court, Tindill, J., denied the plaintiff’s
motions for modification of unallocated alimony and
child support, and the plaintiff appealed to this court;
thereafter, the court, Tindill, J., denied the plaintiff’s
motion for an articulation; subsequently, this court
granted the plaintiff’s motion for review, and the court,
Tindill, J., issued an order. Reversed in part; further
proceedings.
Janet A. Battey, with whom were Olivia M. Hebens-
treit and, on the brief, Gaetano Ferro, for the appel-
lant (plaintiff).
Harold R. Burke, for the appellee (defendant).
Opinion
LAVINE, J. In this postmarital dissolution appeal, the
plaintiff, Janine LeSueur, appeals from the postjudg-
ment orders of the trial court granting the motion for
modification of custody and child support filed by the
defendant, Andrew LeSueur, and denying her motion for
modification of unallocated alimony and child support.
Specifically, the plaintiff claims that the court, Tindill,
J., (1) abused its discretion by granting the defendant’s
motion to modify custody and child support because the
child support order is predicated on clearly erroneous
factual findings and because it terminated the defen-
dant’s child support obligation retroactively without
sufficient information to evaluate the parties’ financial
circumstances, and without considering that she contin-
ued to incur and pay expenses for the parties’ son from
September 2, 2015, until the date of the hearing; (2)
misconstrued the parties’ separation agreement
(agreement) regarding the parties’ obligations to pay
for their children’s postsecondary education; and (3)
abused its discretion by denying her motion to modify
unallocated alimony and support. We affirm in part and
reverse in part the judgment of the trial court.
The parties’ marital history previously was set forth
in LeSueur v. LeSueur, 172 Conn. App. 767, 162 A.3d
32 (2017), which concerned an appeal by the defendant
from certain postjudgment motions (defendant’s
appeal). The parties were married on November 28,
1992, and divorced on January 27, 2011. Id., 770. At the
time of dissolution, ‘‘the parties had two minor children:
a daughter, born in July, 1997; and a son, born in Janu-
ary, 1999. The judgment of dissolution incorporated the
parties’ separation agreement that provided that the
plaintiff and the defendant would have joint legal cus-
tody and the plaintiff primary physical custody of the
two children. The separation agreement also provided
. . . that the defendant . . . pay the plaintiff unallo-
cated alimony and child support from March 1, 2011
until June 30, 2020.’’ Id. Subsequently, the defendant
assumed primary physical custody, first of the parties’
daughter; id., 770–71; and then their son. The defen-
dant’s appeal concerned issues related to child support
for the parties’ daughter. The present appeal concerns
child support related to their son, among other things,
and is factually and procedurally distinct from the
defendant’s appeal.
The record in the present appeal reveals the following
procedural history. On August 14, 2015, the defendant
filed a motion to modify custody and child support,
alleging in part that circumstances regarding custody
of the parties’ son had changed substantially. The defen-
dant represented that the parties had agreed that, as
of July 31, 2015, their son would live with the defendant
and have liberal visitation with the plaintiff.1 The defen-
dant, therefore, asked the court to terminate his child
support obligation to the plaintiff and to order the plain-
tiff to pay him child support.2 On February 8, 2016, the
court accepted the parties’ stipulation regarding the
son’s custody change and scheduled a hearing on the
issue of child support.
On February 10, 2016, the plaintiff filed two motions
for modification of certain provisions of the separation
agreement. In one motion, she claimed that there had
been a substantial change in her financial circum-
stances due to a reduction in her employment and sal-
ary. She, therefore, asked the court to increase the
amount of unallocated alimony and child support she
received from the defendant.3 In her second motion,
titled ‘‘Motion for Modification of Children’s Expenses
and Tuition, Postjudgment,’’ the plaintiff claimed that
there had been a substantial change in her financial
circumstances, and therefore, she asked the court to
order the defendant to pay 100 percent of the educa-
tional ‘‘add-on’’ expenses for their son and all costs
associated with his private school tuition.4 (Internal
quotation marks omitted.)
The court heard argument on the parties’ motions on
three days in the spring of 2016,5 and requested that
the parties submit posthearing briefs. The court issued
orders on the defendant’s motion to modify child sup-
port on October 11, 2016. The court found that the
parties’ son had been living with the defendant since
the date he filed his motion to modify child support
and that he had continued to pay the plaintiff child
support in the amount of $996.27 per week since Sep-
tember 1, 2015. The court granted the defendant’s
motion to modify child support, thereby terminating his
child support obligation to the plaintiff retroactive to
September 2, 2015, and ordered the plaintiff to reim-
burse the defendant for the child support that he had
paid her while their son was living with him.
On October 13, 2016, the court issued orders on the
plaintiff’s motion for modification of alimony and sup-
port and motion for modification of children’s expenses
and private school tuition. The court found that the
plaintiff’s salary had decreased since the time of dissolu-
tion and that the decrease constituted a substantial
change of circumstances. The court also found that
the plaintiff’s monthly expenses had decreased since
January 27, 2011. In addition, the court found that the
pretax income from employment formulae used to cal-
culate the amount of unallocated support the defendant
was to pay the plaintiff continued to be sufficient to
fulfill the intended purpose of equalizing the incomes
of the parties and supporting the children. See footnote
3 of this opinion. The court, therefore, denied the plain-
tiff’s motion to modify unallocated alimony and child
support.6
Pursuant to the oral request of the parties’ counsel;
see footnote 5 of this opinion; the court found that, had
the family stayed intact, the parties more likely than
not would have provided support for their children’s
postsecondary education. It also found that the parties
are well educated and have the income and assets to
assist their children with the cost of higher education.
The court found ample evidence of the children’s aca-
demic commitment, preparedness, and athletic prow-
ess. The parties mutually had agreed that their daughter
should attend Princeton University and that their son
should attend Dartmouth College.7 The court also con-
cluded that, pursuant to the agreement, neither the
‘‘UConn cap’’ nor the cost of a four year degree within
the Connecticut state university system was applicable.8
The court, therefore, ordered the parties to ‘‘timely pay
education support . . . to Princeton University and
Dartmouth College’’ as required by paragraphs 7 (f) and
13 (B) (iv) of the separation agreement. The plaintiff
appealed.
We begin with the well settled standard of review in
family matters. ‘‘An appellate court will not disturb a
trial court’s orders in domestic relations cases unless
the court has abused its discretion or it is found that
it could not reasonably conclude as it did, based on the
facts presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action.’’ (Internal quota-
tion marks omitted.) Ferraro v. Ferraro, 168 Conn. App.
723, 727, 147 A.3d 188 (2016).
I
The plaintiff’s first claim is that the court abused its
discretion by granting the defendant’s motion to modify
custody and child support because (1) its child support
order is predicated on a clearly erroneous factual find-
ing, and (2) it terminated the defendant’s child support
obligation retroactively without sufficient information
to calculate the parties’ financial circumstances as of
September 2, 2015, and without considering that she
continued to incur and pay expenses related to the son.9
We agree that the court’s order that the plaintiff pay
child support is predicated on a clearly erroneous fac-
tual finding. We do not agree, however, that the court
lacked sufficient information regarding the parties’
financial circumstances as of September 2, 2015, or that
the voluntary expenses the plaintiff incurred overcame
the presumption that child support follows the child.
The following additional facts are relevant to our
resolution of this claim. As previously stated, as of July
31, 2015, pursuant to the parties’ informal agreement,
their son began to reside with the defendant. On August
14, 2015, the defendant filed a motion for modification
of custody and child support. He represented that there
had been a substantial change in circumstances due to
the fact that the parties’ son was living with him and
requested that, because he had become financially
responsible for their son, his child support obligation
to the plaintiff be terminated and that the plaintiff be
ordered to pay him child support. On February 8, 2016,
the court accepted the parties’ stipulation that their son
reside with the defendant and ordered a hearing to be
held on the issue of child support.
The parties appeared before the court for an eviden-
tiary hearing on March 28, May 17, and June 1, 2016.
At that time, the defendant argued that the change in
the primary physical custody of the parties’ son required
a modification of the child support portion of the unallo-
cated support order because child support follows the
child. He also argued that he had been paying the plain-
tiff child support pursuant to the court’s July, 2015
order that modified his child support obligation when
he assumed custody of the daughter. The defendant
contended that, as a matter of law and equity, he was
entitled to be reimbursed by the plaintiff for the child
support he had paid her since September 10, 2015, the
date he served the plaintiff with the motion to modify
child support.
The plaintiff argued that the court should not modify
the defendant’s child support obligation because the
agreement called for unallocated alimony and child sup-
port calculated on the basis of the defendant’s pretax
income from employment and that alimony and child
support should not be broken into separate amounts.10
The plaintiff requested that, if the court granted modifi-
cation of child support and did so retroactively, to order
retroactivity from February 8, 2016, the date the transfer
of custody was accepted by the court, not the date the
defendant’s motion to modify was served. In addition,
the plaintiff claimed she continued to incur expenses
for their son after the motion was served.
In its order, the court found, contrary to the plaintiff’s
argument, that the defendant was not seeking to modify
the term, duration, or the percentage of the unallocated
support formulae set forth in paragraph 12 of the
agreement, but was seeking a determination of the
plaintiff’s child support obligation for the parties’ son
who resided with him. The court also found that the
defendant had demonstrated a substantial change in
circumstances that justified a modification of child sup-
port, i.e., the son was living full-time with him as of
the date of the motion for modification was filed. The
defendant had paid the plaintiff child support in the
amount of $996.27 per week since September 1, 2015.
The court, therefore, granted the defendant’s motion to
modify child support and terminated his child support
obligation retroactively to September 2, 2015. The court
found that the defendant was entitled to reimbursement
from the plaintiff in the amount of $57,783.66.
The court found on the basis of the parties combined
weekly income of $12,980 that the plaintiff’s presump-
tive child support obligation for the parties’ son pursu-
ant to the guidelines was $137 per week. The court,
therefore, ordered the plaintiff to pay the defendant
$137 per week in child support, commencing November
1, 2016.
A
The plaintiff claims that the court improperly granted
the defendant’s motion to modify child support and
ordered her to pay the defendant child support on the
ground that the court’s factual finding regarding her
annual income is clearly erroneous because it improp-
erly includes alimony and child support income. We
agree.
‘‘Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
The trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Therefore, to conclude that the trial court abused
its discretion, we must find that the court either incor-
rectly applied the law or could not reasonably conclude
as it did.’’ (Citation omitted; internal quotation marks
omitted.) Mensah v. Mensah, 145 Conn. App. 644, 651–
52, 75 A.3d 92 (2013).
‘‘The [plaintiff] is entitled to relief from the trial
court’s improper rulings only if one or more of those
rulings were harmful. . . . It is well settled that the
burden of establishing harm rests on the appellant. . . .
To meet this burden in a civil case, the appellant must
show that the ruling would likely affect the result.’’
(Citations omitted; internal quotation marks omitted.)
Tevolini v. Tevolini, 66 Conn. App. 16, 30–31, 783 A.2d
1157 (2001).
The following additional facts are relevant to our
resolution of this claim. On March 29, 2017, after she had
appealed, the plaintiff filed a motion for articulation;
see Practice Book § 66-5; requesting, among other
things, that the trial court articulate the basis of its
calculation of the court’s child support guidelines work-
sheet docket number 150.11 The court denied the motion
for articulation, and the plaintiff filed a motion for
review in this court. See Practice Book § 66-7. This
court granted the motion for review and ordered the
trial court to articulate, in relevant part, the following:
(1) the factual basis for stating on worksheet number
150 that the plaintiff’s gross weekly income was $5820
and that her net weekly income was $3680; (2) whether
the alimony received by the plaintiff was included in
the calculation that determined the plaintiff’s gross
income as stated on worksheet number 150; and (3)
the factual basis for stating on worksheet number 150
that the defendant’s net weekly income was $9301.
In its articulation, the trial court stated that the factual
basis for using $5280 as the plaintiff’s gross weekly
income and $3680 as her net weekly income was the
plaintiff’s May 17 and May 20, 2016 financial affidavits
and her May 17, 2016 testimony. The court further stated
that the alimony received by the plaintiff was not
included in her gross income amount on worksheet
number 150. Additionally, the court articulated that the
factual basis for using $9301 as the defendant’s net
weekly income was his May 17, 2016 financial affidavit
and his testimony on May 17, 2016.
On appeal, the plaintiff claims that in determining
her annual income, the court erred by utilizing the infor-
mation on the financial affidavit she submitted on May
20, 2016, which included income in the form of ali-
mony,12 and not the worksheets submitted by the parties
at the hearing on May 17, 2016. The worksheet that the
plaintiff submitted states that her gross weekly income
is $1827 and her net weekly income is $1332. The work-
sheet that the defendant submitted states that the plain-
tiff’s gross weekly income is $2697 and her net weekly
income is $2141. Neither of the worksheets submitted
by the parties included alimony income to the plaintiff.
In October, 2016, when the court issued its decisions on
the motions for modification submitted by the parties,
it appended worksheet number 150 to its orders. Work-
sheet number 150 states the court’s findings that the
plaintiff’s gross weekly income was $5820 and her net
weekly income was $3680. In its articulation, the court
stated that it used the plaintiff’s financial affidavit, not
her worksheet, to make its calculations, and that it did
not include the plaintiff’s income from alimony when
it determined her annual income.
On the basis of our review of the exhibits in the record
and the discrepancies between the parties’ worksheets
regarding the plaintiff’s income and the court’s determi-
nation, we are left with the firm conviction that a mis-
take has been made. There is no legally proper
evidentiary basis before the court to support its determi-
nation of the plaintiff’s gross or net weekly income at
the time it considered the motions for modification. In
addition to using the incorrect documents to calculate
the plaintiff’s income, the plaintiff contends that the
court improperly included alimony in its calculations.
The plaintiff included the alimony she received on her
financial affidavit, and therefore, because the court
used the plaintiff’s financial affidavit, it necessarily
must have included the plaintiff’s alimony when it per-
formed its calculations. We agree with the plaintiff that,
pursuant to our child support statutes and regulations,
the court may not include income from alimony when
it calculates the income of an alimony recipient for
purposes of determining child support.
‘‘Our review of the court’s interpretation of . . .
§ 46b-215a-1 (11) . . . of the Regulations of Connecti-
cut State Agencies is plenary. . . . Section 46b-215a-1
(11) of the Regulations of Connecticut State Agencies
defines gross income as the average weekly earned and
unearned income from all sources before deductions
. . . . That section includes a nonexhaustive list of
twenty-two inclusions. In that list of inclusions is: ali-
mony being paid by an individual who is not a party
to the support determination. . . . Regs., Conn. State
Agencies § 46b-215a-1 (11) (A) (xix). The specific word-
ing of this inclusion makes clear that only alimony
received from a nonparty to the support determination
is included in gross income.’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.) Rob-
inson v. Robinson, 172 Conn. App. 393, 397–98, 160
A.3d 376, cert. denied, 326 Conn. 921, 169 A.3d 233
(2017); see also General Statutes § 46b-84.13
The defendant agrees that the court’s finding of the
plaintiff’s weekly income is erroneous, but he argues
that the error is harmless and had a de minimis impact
on the court’s order that the plaintiff pay him $137
per week in child support. The defendant, however,
provides no legal support for his de minimis argument,
and we are aware of none.
The defendant’s argument is predicated on his calcu-
lation of the presumptive minimum child support pursu-
ant to the child support guidelines. ‘‘[W]hen a family’s
combined net weekly income exceeds $4000, the court
should treat the percentage set forth in the schedule
at the highest income level as the presumptive ceiling
on the child support obligation, subject to rebuttal by
application of the deviation criteria enumerated in the
guidelines, as well as the statutory factors described in
[General Statutes] § 46b-84 (d).’’ Maturo v. Maturo, 296
Conn. 80, 106, 995 A.2d 1 (2010). ‘‘The guidelines provide
in relevant part that, [w]hen the parents’ combined net
weekly income exceeds [$4000], child support awards
shall be determined on a case-by-case basis, and the
current support prescribed at the [$4000] net weekly
income level shall be the minimum presumptive
amount.’’ (Internal quotation marks omitted.) Id., 91.
The guidelines establish a child support award as ‘‘the
entire payment obligation of the noncustodial parent,
as determined under the . . . guidelines . . . .’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 117.
On the basis of his weekly income alone, the defen-
dant argues that the parties’ combined weekly income
exceeds $4000, and therefore the child support for their
son should not exceed the presumptive maximum of
12.04 percent of that income. Given the disparity in the
plaintiff’s annual income reported on the defendant’s
worksheet and the court’s worksheets, the defendant
calculates that the range of the parties’ combined
weekly income is between $10,815.38 and $11,261.63,
which results in a presumptive maximum child support
award of between $1302.17 and $1355.90 per week.
Although we may agree that there is a permissible
range between the presumptive minimum and maxi-
mum child support when the parties’ combined income
exceeds $4000 per week; see Dowling v. Szymczak, 309
Conn. 390, 402, 72 A.3d 1 (2013) (‘‘as long as the child
support award is derived from a total support obligation
within this range—between the presumptive minimum
dollar amount and the presumptive maximum percent-
age of net income—a finding in support of a deviation is
not necessary’’); there is no corresponding permissible
range of child support owed by the noncustodial parent.
A noncustodial parent’s child support obligation is to
be based on his or her proportionate share of the parties’
combined net income. Id., 404.
In the present case, the trial court had two sets of
worksheets filed by the parties and two sets of financial
affidavits. The plaintiff’s stated income is different on
each page and consequently each figure constitutes a
different percentage of the parties’ combined net
weekly income, which affects the amount of the plain-
tiff’s child support obligation regardless of the presump-
tive amount. Moreover, the trial court calculated the
plaintiff’s child support share on the basis of her income
that included alimony, which is not permitted by our
child support statutes or regulations. Although, as the
defendant argues, the difference between the child sup-
port the court ordered the plaintiff to pay and what an
accurate determination of her weekly income requires
her to pay may not be great, the evidentiary basis of
the court’s order is unclear. See Ferraro v. Ferraro,
supra, 168 Conn. App. 731 (figures on worksheets and
affidavits did not match, court must provide basis for
support determinations it makes). Moreover, the error
is harmful. The plaintiff’s presumptive share of support
may have been less than $137 if the court had not
included alimony in its calculation of the parties’ com-
bined weekly income.
The court’s finding with respect to the plaintiff’s
income is clearly erroneous and for that reason, the
court improperly granted the defendant’s motion to
modify child support with respect to the child support
it ordered the plaintiff to pay. We, therefore, reverse
the judgment in part and remand the case for a new
hearing with regard to the parties’ respective child sup-
port obligations.
B
The plaintiff’s second claim regarding the court’s
child support order is that the court abused its discre-
tion by terminating the defendant’s child support obliga-
tion retroactively because (1) the court lacked sufficient
information to calculate the parties’ financial circum-
stances as of September 2, 2015, and (2) she continued
to pay for some of the expenses of the parties’ son
from September 2, 2105, until the time of the hearing.
We disagree.
‘‘Where the legal conclusions of the trial court are
challenged, on appeal those conclusions are subject
only to the test of abuse of discretion. . . . Discretion
means a legal discretion, to be exercised in conformity
with the spirit of the law and in a manner to subserve
and not to impede or defeat the ends of substantial
justice. . . . The salient inquiry is whether the court
could have reasonably concluded as it did. . . . In
determining whether the trial court has abused its dis-
cretion, we must make every reasonable presumption
in favor of the correctness of its action.’’ (Internal quota-
tion marks omitted.) Hayward v. Hayward, 53 Conn.
App. 1, 8, 752 A.2d 1087 (1999). Trial courts have ‘‘broad
discretion in deciding motions for modification.’’ Noce
v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980).
General Statutes § 46b-86 (a) ‘‘governs the availability
of retroactive modification of unallocated alimony and
child support orders.’’ Cannon v. Cannon, 109 Conn.
App. 844, 849, 953 A.2d 694 (2008). Section 46b-86 (a)
provides, in relevant part: ‘‘No order for periodic pay-
ment of permanent alimony or support may be subject
to retroactive modification, except that the court may
order modification with respect to any period during
which there is a pending motion for modification of an
alimony or support order from the date of service of
notice of such pending motion upon the opposing party
. . . .’’ (Emphasis added.)
‘‘Although there is no bright line test for determining
the date of retroactivity of child support payments, this
court has set forth factors that may be considered.
Specificcally, in [Hane v. Hane 158 Conn. App. 167,
176, 118 A.3d 685 (2015), this court] expressly noted
that a retroactive award may take into account the
long time period between the date of filing a motion to
modify, or . . . the contractual retroactive date, and
the date that motion is heard . . . . The court may
examine the changes in the parties’ incomes and needs
during the time the motion is pending to fashion an
equitable award based on those changes. . . . More-
over, § 46b-86 (a) accords deference to the trial court
by permitting it to make a modification to a party’s
child support obligation retroactive to any period dur-
ing which there is a pending motion for modification.’’
(Citation omitted; emphasis in original; internal quota-
tion marks omitted.) LeSueur v. LeSueur, supra, 172
Conn. App. 780.
The following facts are relevant to the plaintiff’s
claim. The defendant previously had filed a motion for
modification of unallocated child support and custody
on June 3, 2014, due to the fact that he had assumed
physical custody of the parties’ daughter. In that motion,
the defendant did not request modification retroactive
to the date the motion was served on the plaintiff. Id.,
782. The parties’ agreement that their daughter live with
the defendant was accepted by the court, Hon. Stanley
Novack, judge trial referee, in December, 2014, and the
matter was continued several times thereafter. Id. The
defendant did not request retroactive modification until
February 25, 2015. Id.
The issue of child support for the parties’ daughter
was not addressed until May 7, 2015, when Judge Tindill
held a hearing on the defendant’s motion for modifica-
tion of unallocated alimony and child support. Id., 773.
The court issued a memorandum of decision regarding
child support on July 31, 2015.14 Id. Almost immediately
thereafter, the parties’ son took up residence in the
defendant’s home, and the defendant filed the present
motion for modification of custody and child support
on August 14, 2015. The motion was served on the
plaintiff on September 10, 2015. On the first day of the
hearing on the present motions, the court stated that
it was taking judicial notice of its July 31, 2015 order
and its order accepting the parties’ stipulation that the
defendant assumed physical custody of the parties’ son.
1
On appeal, the plaintiff argues that the court lacked
sufficient information to calculate the parties’ financial
situation on September 2, 2015, and relies on the proce-
dural history and dicta in this court’s decision with
respect to the defendant’s appeal. In that appeal, this
court stated that the trial court ‘‘did not have the infor-
mation necessary to make its child support orders retro-
active . . . because the parties did not submit financial
affidavits at or close to that date [of service].’’ LeSueur
v. LeSueur, 172 Conn. App. 782. This court continued
quoting from Judge Tindill’s July 31, 2015 memorandum
of decision that the defendant had not submitted ‘‘a
signed, sworn financial affidavit until ordered to do so
by the court on May 22, 2015. Prior to June 8, 2015, the
most recent financial affidavits filed were those filed
on January 27, 2011.’’ (Internal quotation marks omit-
ted.) Id., 783. We infer from the trial court’s July 31,
2015 memorandum of decision that it had current infor-
mation regarding the parties’ financial circumstances
as of June 8, 2015, which is approximately three months
prior to September 2, 2015.
The defendant argues, in part, that the court had
sufficient evidence by which it could make its child
support orders retroactive. Namely, that on September
10, 2015, the date the plaintiff was served with the
motion for modification, the defendant was the son’s
custodial parent pursuant to the parties’ agreement. He
continued to pay child support to the plaintiff notwith-
standing that he was their son’s custodial parent and
he had costs attributable to the son. The plaintiff con-
tributed no financial support to the defendant for their
son’s care. Significantly, the court had issued orders
relative to the parties’ daughter on July 31, 2015, pursu-
ant to the financial data available to the court at that
time. Moreover, although the defendant had assumed
custody of the son in early August, 2015, the court
ordered the plaintiff to pay the defendant child support
from November 1, 2016, until the son completed high
school in May, 2017.
The record supports the defendant’s argument. The
motion to modify unallocated alimony and child support
was served on the plaintiff on September 10, 2015, the
defendant had assumed primary physical custody of
the son in August, 2015, and the son was living full-
time in the defendant’s home while the defendant con-
tinued to pay the plaintiff pursuant to the July 31, 2015
child support order. We conclude on the basis of the
court’s memorandum of decision that it had information
pertaining to the parties’ financial circumstances in
June, 2015, which was at or near the time when the
defendant served the motion for modification of unallo-
cated alimony and child support on the plaintiff. There
is no evidence in the record indicating that the plaintiff’s
financial circumstances had changed during the sum-
mer and fall of 2015, except that she no longer had
custody of the parties’ son. The record discloses, and
the plaintiff admitted during the hearing on the present
motions, that her full-time employment did not change
and her salary was not reduced until she filed the motion
for modification of unallocated alimony and child sup-
port in February, 2016.
2
The plaintiff also claims that the court improperly
modified the child support order retroactive to Septem-
ber 2, 2015, because she continued to pay expenses of
the parties’ son from September 2, 2015, to the date of
the hearing even though the son was not primarily living
in her home. She claims that if the court granted the
defendant’s motion to modify retroactively, the retroac-
tivity should only be to February 8, 2016, which is when
the court accepted the parties’ agreement that their son
live with the defendant, and the date on which the
defendant first requested that the motion be granted ret-
roactively.
In her brief on appeal, the plaintiff argues that she
testified as to the expenses she incurred for the son.
Although the court made no findings with respect to
the expenses the plaintiff claims that she paid; see Wyatt
Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn.
719, 739–40, 66 A.3d 848 (2013) (recitation of testimony
without more does not constitute finding); the court
found that the plaintiff’s expenses with respect to her
children had declined. The court also found that the
son was living full time with the defendant ‘‘as of the
date of the instant motion.’’ It is undisputed that the
son moved to the defendant’s home in August, 2015.
General Statutes § 46b-224 specifically ‘‘addresses
the question of how a change in custody affects the
payment of child support . . . .’’ Tomlinson v. Tomlin-
son, 305 Conn. 539, 549, 46 A.3d 112 (2012). ‘‘Child
support . . . furnishes the custodian with the
resources to maintain a household to provide for the
care and welfare of the children; in essence, the custo-
dian holds the payments for the benefits of the child.
Consequently, once custody changes, there is no imme-
diately apparent reason for the former custodian to
continue to receive the payments because the presump-
tion is that the former custodian is no longer primarily
responsible for providing the children’s necessary liv-
ing expenses, including food, shelter and clothing. In
turn, permitting the diversion of funds away from the
parent providing for the care and well-being of minor
children when custody changes, pursuant to the par-
ents’ contractual agreement, would contravene the pur-
pose of child support.’’ (Emphasis added.) Id., 555.
‘‘Modification, including retroactive modification, of
a child support order upon a change of custody under
§ 46b-224, comports with the default rule that child
support follows the children, unless the trial court has
made a finding that another arrangement is appropriate.
This statute indicates that the legislature viewed the
provision of custody as the premise underlying the
receipt of child support payments; the legislature did
not envision that the custodian would be required to pay
child support to a person who does not have custody, as
well as (in cases in which the obligor obtains custody)
expend resources to provide directly for the care and
welfare of the child. In fact, under the Child Support
and Arrearage Guidelines . . . child support award is
defined as the entire payment obligation of the noncus-
todial parent. . . . Once custody is transferred, how-
ever, there is no longer any basis for the presumption
that the former custodian is spending his or her share
of the support on the children.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Coury v. Coury, 161 Conn. App. 271, 299, 128 A.3d
517 (2015).
In Tomlinson,15 our Supreme Court stated that ‘‘if
the obligor becomes the new primary custodial parent,
the obligor is no longer required to pay child support
to the former custodian. . . . The immediate result
. . . is . . . the originally designated payee who no
longer has custody of the child does not continue to
receive support payments following the change in cus-
tody, and the payments are retained by . . . the party
who does have custody.’’ Tomlinson v. Tomlinson,
supra, 305 Conn. 549–50.
In the defendant’s appeal, this court stated on the
basis of the plaintiff’s testimony that she had rebutted
the presumption that ‘‘the former custodian is no longer
primarily responsible for providing the children’s neces-
sary living expenses’’ because she continued to have
expenses associated with the care of the parties’ daugh-
ter. (Internal quotation marks omitted.) LeSueur v. LeS-
ueur, supra, 172 Conn. App. 779. We have reviewed the
transcript of the hearing with respect to the parties’
son and agree that the plaintiff testified that she paid
certain of the son’s expenses.16 The court, however,
made no finding that the expenses were necessary
expenses. With regard to those expenses, her payments
were voluntary and not for necessary expenses contem-
plated by the child support scheme.
In the present appeal, the plaintiff presented no evi-
dence, and our review disclosed none, that the defen-
dant, who was the primary custodial parent, was not
providing for their son’s necessary expenses for food,
shelter, and clothing. Although the plaintiff testified
that she incurred expenses on behalf of the son, some of
them were typical of those incurred by any noncustodial
parent during visitation. The plaintiff presented no evi-
dence that she was not able to pay for those expenses
with her salary or income from investments or unallo-
cated alimony and child support she was receiving. She
also presented no evidence that she incurred expenses
for the parties’ son because the defendant failed to
meet the son’s necessary needs. The record contains
evidence that many of the expenses the plaintiff
incurred were the result of her voluntary decision to
provide the son with the unlimited use of a credit card.
The plaintiff voluntarily incurred those expenses, and
they are not the necessary expenses contemplated by
our case law and statutes.17
The court found that the parties had agreed that their
son could move to the defendant’s home soon after
the court issued its July 31, 2015 child support orders
regarding their daughter. It also found that the son had
been living with the defendant since the time the motion
to modify custody and child support was filed and that
the defendant continued to pay the plaintiff child sup-
port pursuant to the court’s July 31, 2015 orders. There
is no explanation in the record as to why the motion
to modify, filed in August, 2015, was not heard until
February 8, 2016, which is when the court accepted the
parties’ agreement that the defendant would assume
custody of their son.
On the basis of our review of the record, the court’s
orders, and the briefs of the parties, we conclude that
the court did not abuse its discretion by granting the
defendant’s motion for modification and terminating
the defendant’s child support obligation to pay the plain-
tiff retroactively, as the plaintiff failed to demonstrate
that she required child support in order to provide for
the son’s necessary expenses. However, in her reply
brief, the plaintiff noted that the court terminated the
defendant’s child support obligation as of September
2, 2015, which predates the time his motion to modify
custody and child support was served on the plaintiff
on September 10, 2015. On remand, the court is ordered
to set the retroactive date to a time subsequent to Sep-
tember 10, 2015.
II
The plaintiff’s second claim is that the court miscon-
strued the separation agreement and consequently
ordered the parties to timely pay the postsecondary
tuition expenses of their children. We disagree that the
court misconstrued the separation agreement.
During the hearing on their motions for modification,
the parties asked the court to determine their respective
obligations, if any, to pay the college tuitions of their
children. Article 13 of the separation agreement, titled
Miscellaneous Child Support Matters, is at the center
of the plaintiff’s claim. Paragraph 13 (B) (iv) of the
separation agreement concerns the children’s postsec-
ondary education and provides as follows: ‘‘In the event
that a child, upon graduating high school, attends a
fully accredited college or university and matriculates
in a course of study leading to an undergraduate degree,
the parties shall each contribute their proportionate
share to the cost thereof, in accordance with their
income at that time (including any [pretax income from
employment] being paid by [the defendant] to [the plain-
tiff]), after the child has made application for all avail-
able financial aid, grants and scholarships. The
[defendant] and [the plaintiff] shall consult with each
other and with the child concerned with respect to the
education of any or all of the children and with respect
to the selection of schools or colleges which they shall
attend. The selection of said schools and/or colleges
shall be by mutual agreement. In the event that the
parties are unable to agree on a school and/or their
respective obligations therefore, it is understood and
agreed that the Court shall retain jurisdiction pursuant
to the . . . General Statutes to determine the amount
of each [party’s] required contribution, up to the cost
of in state tuition at a school which is part of the Con-
necticut state university system and either party may
submit the dispute to a court of competent jurisdiction
for determination thereof. The parties’ obligations pur-
suant to this [Article 13 (B) (iv)] shall continue with
respect to each child despite a child having attained
the age of majority, but in no event beyond a child’s
twenty-third . . . birthday.’’
During the hearing, the defendant testified that para-
graph 13 (B) (iv) of the separation agreement meant
that there was no limit, or so-called UConn cap, on their
respective tuition contributions if the parties agreed on
the respective school or college their children would
attend. The plaintiff testified that she believed that the
UConn cap applied if the parties could not agree on
their respective financial obligations. The court found
that the parties mutually agreed that their daughter
would attend Princeton University and their son Dart-
mouth College and that neither the UConn cap nor the
cost of a four year degree within the Connecticut state
university system applied as contended by the plaintiff.
On appeal, the plaintiff claims that the court improp-
erly ordered the parties to pay their children’s tuition
at their respective colleges because the court did not
find that the parties had agreed to exceed the limit
imposed by General Statutes § 46b-56c (f).18 The plain-
tiff, therefore, asserts that the court erred in finding
that the UConn cap and the cost of instate tuition at a
school that is part of the Connecticut state university
system do not apply and improperly ordered the parties
to pay timely educational support to Princeton Univer-
sity and Dartmouth College as required by paragraphs
7 (F) and 13 (B) (iv) of the separation agreement.
‘‘It is well established that a separation agreement,
incorporated by reference into a judgment of dissolu-
tion, is to be regarded and construed as a contract.
. . . Accordingly, our review of a trial court’s interpre-
tation of a separation agreement is guided by the general
principles governing the construction of contracts. . . .
A contract must be construed to effectuate the intent
of the parties, which is determined from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the trans-
action. . . . If a contract is unambiguous within its four
corners, the determination of what the parties intended
by their contractual commitments is a question of law.
. . . When the language of a contract is ambiguous,
[however] the determination of the parties’ intent is a
question of fact, and the trial court’s interpretation is
subject to reversal on appeal only if it is clearly errone-
ous.’’ (Citations omitted; internal quotation marks omit-
ted.) Remillard v. Remillard, 297 Conn. 345, 354–55,
999 A.2d 713 (2010).
On the basis of our review of Article 13 (B) (iv) of
the agreement, we conclude that the language is clear
and unambiguous. The first clause of the subject article
addresses the circumstances under which the parties
will pay postsecondary tuition for their children. The
child must have been graduated from high school,
desires to attend a fully accredited college or school,
and matriculated in a course of study leading to an
undergraduate degree. The next clause states that each
party shall pay his or her proportionate share in accor-
dance with his or her income at the time after the child
has applied for financial assistance. The next sentence
addresses the manner in which the decision as to the
postsecondary educational institution the child is to
attend is to be made, i.e., the parties shall consult with
each other and with the child concerned with respect
to the education of any or all of the children and with
respect to the selection of schools or colleges which
they shall attend. The selection of said schools and/or
colleges shall be by mutual agreement.
In the present case, there is no dispute that the parties
and their children mutually agreed that their daughter
would attend Princeton University and their son would
attend Dartmouth College. Because the parties mutu-
ally agreed, it is unnecessary to consider the next sen-
tence of the article, which only applies when the parties
are unable to agree on the educational institution and/
or their respective obligations therefore. The word
therefore refers back to the educational institution
about which there is no agreement. Consequently, the
court properly determined that the UConn cap and
tuition limit on a four year degree from a Connecticut
state university system did not apply under the present
circumstances where the parties and their children
mutually agreed that their daughter should attend
Princeton University and their son should attend Dart-
mouth College.
Moreover, we will not construe an agreement to reach
a patently absurd result. The separation agreement
clearly is intended to have the parties and their children
mutually contemplate, investigate, and agree on the
appropriate postsecondary educational institutions the
children shall attend. Common sense dictates that
tuition and related costs would be taken into consider-
ation during that process. The plaintiff’s construction
of the agreement that after the family mutually agrees
on the appropriate educational institutions for their
children the parties will not pay the cost of tuition that
exceeds that of the UConn cap would undermine the
very purpose of the agreement. We can only imagine
how family harmony would be disrupted and the disap-
pointment, frustration, and perhaps anger, the child
may feel after the family agrees to the postsecondary
educational institution the child would attend but that
she or he alone must bear any tuition burden that
exceeds the UConn cap.19 We decline to sanction the
plaintiff’s construction of the unambiguous language of
the separation agreement. We, therefore, conclude that
the court properly determined that the provision of the
separation agreement regarding the UConn cap and the
tuition limit of a four year college degree from the
Connecticut state university system do not apply
because the parties and their children mutually agreed
on the postsecondary institutions the children would
attend, i.e., Princeton University and Dartmouth
College.
III
The plaintiff’s final claim is that the court improperly
denied her motion to modify unallocated alimony and
child support. We do not agree.
The following facts are pertinent to this claim. On
February 10, 2016, the plaintiff filed a motion for modifi-
cation of unallocated alimony and support, postjudg-
ment, asking the court to increase the amount of
unallocated alimony and support she received from the
defendant on the basis of his pretax income from
employment. In the motion, the plaintiff quoted that
portion of the agreement regarding the amount of ali-
mony and support she was to receive from the defen-
dant as of August 1, 2015. She also quoted paragraph
12.8 (c) of the agreement, which states in relevant part:
‘‘In no event shall the percentage formulae set forth in
paragraph 12.1 (a), (b) and (c) of this Agreement or in
any decree incorporating its provisions . . . be
changed or amended by the parties or the court; except
that either party shall be entitled to seek modification
of the percentage formulae . . . in the event of a sub-
stantial change of circumstances of either party . . .
or ordered by a [c]ourt that one or more of the children
shall reside with the [defendant] as his or her primary
residence. At the time that this agreement was executed
the [plaintiff] had a salary . . . of $125,000 per year
and for the preceding year her income was $75,000 per
year. At the time that this agreement was executed,
the [defendant] had [pretax income from employment]
totaling $647,000 and for 2009 he had [pretax income
from employment] for 2010 totaling $477,459.’’ The
plaintiff argued that since the dissolution judgment was
rendered, her financial circumstances had changed sub-
stantially in that her salary had decreased from $125,000
per year to $95,000. She asked the court to increase the
defendant’s alimony obligation retroactive to the date
the motion was served on the defendant.
Following a hearing on the motion, the court found
that the plaintiff alleged several substantial changes in
circumstances since January 27, 2011, namely that her
earnings from employment had decreased significantly,
the defendant no longer paid child support for the par-
ties’ daughter, the amount of alimony she received from
the defendant had decreased on August 1, 2015, pursu-
ant to the dissolution agreement, and the defendant
had filed a motion to terminate child support for the
parties’ son.
In issuing its order, the court stated that it had
reviewed the motions of the parties and considered
their testimony and all the evidence they had submitted.
In addition, the court stated that it had considered the
relevant rules, case law and statutory provisions, as
well as the arguments of counsel.20 The court found that
the plaintiff has been employed by Shumway Capital,
a private family foundation, for the past five years. At
the time of dissolution, she was employed full-time at
an annual salary of $125,000. The court found that at
approximately the time she filed the motion to modify
unallocated alimony and child support on February 10,
2016, the plaintiff became a part-time employee earning
a salary of approximately $95,000 and that the decrease
in the plaintiff’s salary constituted a substantial change
in circumstances. The court also found that the plain-
tiff’s monthly expenses for shelter, transportation, the
children and her liabilities had decreased since January
27, 2011.
In addition, the court found that following the change
of custody with respect to the parties’ daughter, the
defendant has paid support to the plaintiff in accor-
dance with the agreement and the court’s orders. It also
found that the agreement’s original percentage formu-
lae using the defendant’s pretax income from employ-
ment to calculate and determine the plaintiff’s
unallocated support continues to be sufficient to fulfill
its intended purpose to equalize the income of the par-
ties and support the children. The court, therefore,
denied the plaintiff’s motion to modify the percentage
formulae of paragraph 12 of the agreement.
On appeal, the plaintiff claims that the court abused
its discretion by denying her motion to increase her
unallocated alimony and support. She argues that
because the court determined that the reduction in her
salary constituted a substantial change in circum-
stances; see General Statutes § 46b-86;21 the court was
obligated to consider all of the factors in General Stat-
utes § 46b-8222 to order alimony in accordance with the
needs and financial resources of the parties, and she
cites Schwarz v. Schwarz, 124 Conn. App. 472, 478, 5
A.3d 548 (once court determines a substantial change
in circumstances exists, it must consider all factors in
§ 46b-82 to order alimony in accord with needs and
financial resources of each party), cert. denied, 299
Conn. 909, 10 A.3d 525 (2010). In making this argument,
the plaintiff fails to consider that the court stated that
in ruling on the motion to modify unallocated alimony
and child support, it had considered the relevant stat-
utes and case law. A court need not ‘‘make explicit
reference to the statutory criteria that it considered in
making its decision or make express findings as to each
statutory factor.’’ Caffe v. Caffe, 240 Conn. 79, 82–83,
689 A.2d 468 (1997); see also Brown v. Brown, 148
Conn. App. 13, 22, 84 A.3d 905 (court expressly stated
it had considered all relevant statutes before rendering
judgment), cert. denied, 311 Con. 933, 88 A.3d 549
(2014).
Moreover, ‘‘[a] fundamental principle in dissolution
actions is that a trial court may exercise broad discre-
tion in awarding alimony and dividing property as long
as it considers all relevant statutory criteria. . . . No
single criterion is preferred over others, and the trial
court has broad discretion in varying the weight placed
on each criterion under the circumstances of each
case.’’ (Internal quotation marks omitted.) Brown v.
Brown, supra, 148 Conn. App. 22. ‘‘Once a trial court
determines that there has been a substantial change in
the financial circumstances of one of the parties, the
same criteria that determine an initial award of alimony
. . . are relevant to the question of modification.’’
(Internal quotation marks omitted.) Borkowski v. Bor-
kowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994).
Paragraph 12.8 (c) of the agreement states: ‘‘In no
event shall the percentage formulae set forth in para-
graph 12.1 (a), (b) and (c) of this Agreement or in any
decree incorporating its provisions, in whole or in part,
be changed or amended by the parties or the court;
except that either party shall be entitled to seek a modi-
fication of the percentage formulae set forth in para-
graphs 12.1 (a), (b) and (c) in the event of a substantial
change of circumstances of either party . . . .’’ By the
agreement’s plain terms, the plaintiff was entitled to
seek a modification of the formulae used to determine
her unallocated alimony and child support on the basis
of the defendant’s pretax income from employment,
but the agreement did not require that the formulae
be modified on the basis of the substantial change of
circumstances.
In the present case, the plaintiff’s employment was
reduced from full-time to part-time and her salary was
reduced from $125,000 to $95,000, which the court
found to be a substantial change of circumstances. The
court also found that there had been a significant reduc-
tion in the plaintiff’s expenses for housing, transporta-
tion, and her children. Both of the children were then
in the custody of the defendant and residing with him.
‘‘Appellate courts look at the record, and determine
whether the [trial] court either incorrectly applied the
law or could not reasonably conclude as it did.’’ (Inter-
nal quotation marks omitted.) Caffe v. Caffe, supra,
240 Conn. 83. We have reviewed the transcripts of the
hearing on the parties’ motions and the exhibits. The
record discloses evidence that supports the court’s find-
ing that there has been a decrease in the plaintiff’s
expenses, most particularly with respect to housing.
She had been living in an apartment paying $4700 a
month in rent, but purchased a condominium that was
in foreclosure and was then paying $2500.86 per month
for the mortgage. She acknowledged that the interest
payments on the mortgage and property taxes were tax
deductible. She was able to purchase a Lexus ‘‘demo’’
automobile and continued to make contributions to her
401k plan. She works thirty hours a week and is partially
covered by her employer’s health insurance. The plain-
tiff presented no evidence that she has issues related
to poor health or that she is unable to work. She holds
a master of business administration degree. Moreover,
the defendant has pointed out that the plaintiff’s finan-
cial affidavit discloses that she has investments that
yield significant dividends and interest.
As to the plaintiff’s argument that the amount of
money she received from the defendant was reduced
due to the fact that she no longer was receiving child
support for the parties’ daughter, child support follows
the child. The fundamental purpose of child support is
to provide for the care and well-being of minor children.
Tomlinson v. Tomlinson, supra 305 Conn. 555. More-
over, the agreement contemplated that the children
might live with the defendant, which constituted a sub-
stantial change of circumstances, warranting a change
of unallocated alimony and child support. The court
stated that the unallocated support the plaintiff was
receiving continued to be sufficient to fulfill its intended
purpose to equalize the income of the parties and sup-
port the children. The court, therefore, denied the plain-
tiff’s motion to modify the percentage formulae of
paragraph 12 of the agreement.
Both of the parties agree that the formulae used to
calculate the amount of support the plaintiff is to
receive from the defendant’s pretax income from
employment were not intended to equalize their
incomes. According to the defendant, the parties agreed
that the plaintiff would receive a greater amount of
alimony as the defendant’s income increased, but the
amount of alimony as a percentage of that income
would decline. The defendant notes that their incomes,
even after he paid the plaintiff pursuant to the formulae,
were never equal, even at the time of dissolution. He
argues that ‘‘equalize’’ means that the parties’ incomes
could be balanced. The parties did not ask the court
to articulate what it meant that the unallocated support
provided under paragraph 12 of the agreement equal-
ized their incomes, and we will not speculate as to its
meaning. That finding, however, is not relevant to our
determination of whether the court abused its discre-
tion by denying the plaintiff’s motion for modification
of unallocated alimony and child support.
When these highly educated and sophisticated parties
signed the agreement at the time their marriage was
dissolved, they had negotiated its provisions with the
assistance of counsel. They bargained for a change of
unallocated support if one or both of their children
decided to live with the defendant, and they bargained
for the percentage of support the plaintiff would receive
from the defendant’s pretax income from employment
and that the percentages stepped down over time. There
is no evidence in the record that the plaintiff has brought
to our attention that the amount of unallocated alimony
and support she receives is insufficient to meet her
needs. See Dombrowski v. Noyes-Dombrowski, 273
Conn. 127, 132, 869 A.2d 164 (2005) (purpose of periodic
alimony to provide continuing support). The court,
therefore, did not abuse its discretion by denying the
plaintiff’s motion to modify unallocated alimony and
child support.
The judgment is reversed with respect to the trial
court’s determination regarding the plaintiff’s child sup-
port obligation and the date on which the defendant’s
child support obligation terminated, and the case is
remanded for further proceedings consistent with this
opinion; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The son’s move to the defendant’s home coincided with the judgment
modifying the child support obligations of the parties with respect to the
daughter’s residing with the defendant.
2
The motion to modify custody and child support was served on the
plaintiff on September 10, 2015.
3
Pursuant to the agreement, the amount of unallocated alimony and child
support the defendant has to pay to the plaintiff annually is calculated as
a percentage of his pretax income from employment. The term of unallocated
alimony and child support is from March 11, 2011, until June 30, 2020. The
percentage is calculated pursuant to an agreed upon stepdown formula that
reduces the percentage of the defendant’s pretax income payable to the
plaintiff. The amount of the defendant’s pretax income from employment
on which the plaintiff’s alimony is calculated is capped at $1 million annually.
From August 1, 2015, until January 31, 2017, the unallocated alimony and
child support the defendant was to pay the plaintiff was to be calculated
on the basis of the following formula.
Pretax Income Received by the Percentage to be Paid
defendant from Employment to the plaintiff
$0 to $316,000 40 percent
$316,001 to $660,000 26.5 percent
$661,000 to $1,000,000 19 percent
4
Paragraph 13 of the separation agreement, titled ‘‘Miscellaneous Child
Support Matters,’’ provides in relevant part:
‘‘A. Based on the parties combined parental income the [defendant] shall
be responsible for [50] percent of child support ‘add-ons’ and the [plaintiff]
shall be responsible for [50] percent of the child support add-ons. [Add-ons]
for purposes of this Agreement include the following: reasonable child care
expenses (incurred when a party is working); mutually agreed upon educa-
tion expenses other than those addressed in C below, including but not
limited to tutoring; extracurricular school activities and lessons including
sports and music; and summer camp.’’
5
During the portion of the hearing held on May 17, 2016, counsel for the
parties asked the court to consider an additional matter regarding the parties’
obligation to pay for their children’s postsecondary education. The court
agreed to consider the matter. See part II of this opinion.
6
The court also denied the plaintiff’s motion to modify the allocation of
expenses, ‘‘add-ons,’’ and private school tuition between the parties. On
appeal, the plaintiff has not claimed that the court abused its discretion in
that regard. (Internal quotation marks omitted.)
7
The parties’ daughter was recruited to play field hockey at Princeton
University and their son was recruited to play ice hockey at Dartmouth
College.
8
See General Statutes § 46b-56c (f). The ‘‘UConn cap’’ refers to the amount
of tuition paid by a ‘‘full-time in-state student’’ to attend the University
of Connecticut.
9
The plaintiff does not claim that the court improperly accepted the
parties’ stipulation that their son would live with the defendant. Her claim
pertains only to the court’s child support orders.
10
Paragraph 12.8 (c) of the agreement provides in relevant part: ‘‘In no
event shall the percentage formulae set forth in paragraph 12.1 (a), (b) and
(c) of this Agreement or in any decree incorporating its provisions, in whole
or in part, be changed or amended by the parties or the court; except
that either party shall be entitled to seek a modification of the percentage
formulae set forth in paragraph 12.1 (a), (b) and (c) in the event of a
substantial change of circumstances of either party or in the event it is
agreed by the parties or ordered by a Court that one or more of the children
shall reside with the [defendant] as his or her primary residence.’’
11
The subject worksheet is identified as number 150 on the trial court
docket list.
12
The plaintiff’s May 17, 2016 financial affidavit shows the plaintiff’s gross
weekly income to be $5339.56, which includes alimony and child support.
The plaintiff reported $7916.66 in gross monthly salary from her employer,
$4317.20 of child support, $7134.24 in monthly alimony, and $3770 in monthly
dividend and interest income.
13
General Statutes § 46b-84 (a) provides in relevant part: ‘‘Upon or subse-
quent to the . . . dissolution of any marriage . . . the parents of a minor
child of the marriage, shall maintain the child according to their respective
abilities, if the child is in need of maintenance. Any postjudgment procedure
afforded by chapter 906 shall be available to secure the present and future
financial interests of a party in connection with a final order for the periodic
payment of child support.’’
14
The trial court ‘‘modified the defendant’s child support obligation retro-
active to December 9, 2014, rather than the date that the motion was served
on June 30, 2014, because it found that December 9, 2014, was the date
when his primary physical custody of the daughter was no longer temporary.’’
LeSueur v. LeSueur, supra, 172 Conn. App. 783.
15
The question in Tomlinson was whether a provision in the parties’
separation agreement that expressly prohibited modification of child support
pursuant to the nonmodification clause of § 46b-86 (a) precluded a trial
court from modifying the child support portion of an unallocated support
order. Our Supreme Court noted that ‘‘while § 46b-86 (a) addresses the
modification of child support in general, § 46b-224 covers the particular
effect of a change in custody on preexisting child support orders.’’ Tomlinson
v. Tomlinson, supra, 305 Conn. 550.
16
With respect to the defendant’s appeal in LeSueur v. LeSueur, supra,
172 Conn. App. 767, it is unclear whether the trial court made a factual
finding as to whether the expenses paid by the plaintiff on behalf of the
parties’ daughter when she was in the defendant’s custody were necessary
expenses. This court concluded, however, on the basis of the plaintiff’s
testimony in the record that the plaintiff had incurred necessary expenses
for the daughter after she had moved to the defendant’s home. Id., 778–79.
In the present appeal, the plaintiff again testified that she incurred expenses
for the parties’ son after he moved into the defendant’s home. The trial
court made no finding that those expenses were necessary expenses. We
are constrained by the factual findings of the trial court, as it is well known
that appellate courts do not make findings of fact on the basis of the record.
See In re Carissa K., 55 Conn. App. 768, 778, 740 A.2d 896 (1999) (appellate
courts do not examine record to determine whether trier of fact could have
reached conclusion other than one reached and do not retry case).
17
The plaintiff testified that the parties’ son used the credit card when
he ate at restaurants with his friends, to purchase concert tickets, and to
pay for Uber rides from the airport, among other things. The son also let
the parties’ daughter use his credit card when she misplaced the credit card
the plaintiff had provided to her.
18
General Statutes § 46b-56c (f) is not mentioned in the separation
agreement.
19
Both in the trial court and at oral argument before us, the plaintiff, who
is herself a graduate of Princeton University, had no plan for how her
children’s tuition would be paid if not pursuant to the separation agreement.
She expected the court to fashion a remedy. The court will not fashion a
remedy in the face of the unambiguous plan in the parties’ separation
agreement.
20
Our review of the transcript of the hearing discloses that the court took
judicial notice of prior proceedings in the file.
21
General Statutes § 46b-86 (b) provides in relevant part: ‘‘In the event
that a final judgment incorporates a provision of an agreement in which
the parties agree to circumstances, other than as provided in this subsection,
under which alimony will be modified including suspension, reduction, or
termination of alimony, the court shall enforce the provision of such
agreement and enter orders in accordance therewith.’’
22
General Statutes § 46b-82 (a) provides in relevant part: ‘‘In determining
whether alimony shall be awarded . . . the court shall consider the evi-
dence presented by each party and shall consider the length of the marriage,
the causes for the annulment, dissolution of the marriage or legal separation,
the age, health, station, occupation, amount and sources of income, earning
capacity, vocational skills, education, employability, estate and needs of
each of the parties . . . .’’