McKeon v. Lennon ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and 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 repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
MARIA F. MCKEON v. WILLIAM P. LENNON
(AC 34078)
(AC 34710)
(AC 35204)
Gruendel, Lavine and Mullins, Js.
Argued December 8, 2014—officially released February 17, 2015
(Appeal from Superior Court, judicial district of
Tolland, Suarez, J.)
Maria F. McKeon, self-represented, the appellant
(plaintiff).
Proloy K. Das, with whom was Debra C. Ruel, for
the appellee (defendant).
Opinion
GRUENDEL, J. In these consolidated appeals, the
plaintiff, Maria F. McKeon, appeals from several judg-
ments of the trial court rendered in relation to the
judgment dissolving her marriage to the defendant, Wil-
liam P. Lennon. On appeal, the plaintiff claims that the
court improperly (1) granted the defendant’s motion
for modification of child support, (2) denied the her
motion for modification of child support, (3) modified
the defendant’s child support obligation (AC 34078),
(4) denied the her motion for a finding of contempt
(AC 35204), and (5) denied her motion for attorney’s
fees (AC 34710). We disagree and, accordingly, affirm
the judgments of the trial court.
These appeals arise from of a series of postjudgment
motions related to the parties’ 2007 dissolution of mar-
riage. The plaintiff and defendant 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 dis-
solving the marriage (dissolution judgment) and
entered various 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, 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 some-
times earned in excess of the defendant’s salary. In the
years leading up to the divorce, the plaintiff had worked
part-time in order to be the primary caregiver 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. The court awarded the plaintiff additional alimony
in the form of an irrevocable interest in the defendant’s
future annual employment bonuses, executive stock
options, and awards of restricted stock. The 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 earned in 2011, 2012,
and 2013, and receive 30 percent awarded to him in
each year from 2014 through 2021.
In May, 2008, fewer 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 judgment, the plaintiff
appealed to this court, which heard argument on the
matter on November 18, 2010.1 McKeon v. Lennon, 131
Conn. App. 585, 27 A.3d 436, cert. denied, 303 Conn.
901, 31 A.3d 1178 (2011). On appeal, this court con-
cluded that the trial court improperly denied the plain-
tiff’s motion without first conducting a hearing, and,
therefore, we reversed the judgment and remanded the
matter to the trial court for further proceedings. Id.,
599–600, 614–15. That opinion was released on Septem-
ber 27, 2011.
While the appeal of the 2008 motion for modification
was pending before this court, 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 obli-
gation 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 gradua-
ted 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 issued a memorandum of decision granting
the defendant’s 2010 motion for modification and deny-
ing 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 this judgment, the plaintiff appealed (AC
34078).
On April 25, 2012, pursuant to this court’s remand,
the trial court held a contested hearing 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 pre-
sented evidence on all three motions. As a result of the
complicated procedural history 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 memorandum
of decision, denying the plaintiff’s motion for modifica-
tion of child support, motion for attorney’s fees, and
motion for contempt. In doing so, the court considered
the circumstances of the parties going back to the 2007
dissolution judgment. Further, the court found that the
2011 child support modification order was in accor-
dance with the child support guidelines and remained
equitable and appropriate given the circumstances of
the case. From these judgments, the plaintiff also
appealed (AC 34710 and AC 35204).
We now consider each of the plaintiff’s three consoli-
dated appeals (AC 34078, AC 34710, and AC 35204).
Additional facts and procedural history will be set forth
as necessary.
I
The plaintiff first claims that the court erred in con-
cluding that there had been a substantial change of
circumstances with regard to the defendant’s motion
for modification and that there had been no substantial
change with regard to the plaintiff’s motion. We
disagree.
We begin by setting forth the appropriate standard
of review. ‘‘The scope of our review of a trial court’s
exercise of its broad discretion in domestic relations
cases is limited to the questions of whether the [trial]
court correctly applied the law and could reasonably
have concluded as it did. . . . In determining whether
a trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action. . . . Nev-
ertheless, we may reverse a trial court’s ruling on a
modification motion if the trial court applied the wrong
standard of law. . . .’’
‘‘[General Statutes §] 46b-86 (a) governs the modifica-
tion or termination of an alimony or support order after
the date of a dissolution judgment.2 When . . . the dis-
puted issue is [child support], the applicable provision
of the statute is § 46b-86 (a), which provides that a final
order . . . may be modified by the trial court upon a
showing of a substantial change in the circumstances
of either party. . . . Under that statutory provision, the
party seeking the modification bears the burden of dem-
onstrating that such a change has occurred. . . . To
obtain a modification, the moving party must demon-
strate that circumstances have changed since the last
court order such that it would be unjust or inequitable
to hold either party to it. Because the establishment of
changed circumstances is a condition precedent to a
party’s relief, it is pertinent for the trial court to inquire
as to what, if any, new circumstance warrants a modifi-
cation of the existing order.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Olson
v. Mohammadu, 310 Conn. 665, 671–72, 81 A.3d 215
(2013). We now review the court’s conclusions as to
whether there was a substantial change in circum-
stances.
A
The plaintiff claims that the court improperly denied
her motion for modification of child support, pursuant
to § 46b-86 (a), when it concluded that she had failed
to meet her burden of establishing a substantial change
of circumstances. We disagree.
‘‘A party moving for a modification of a child support
order must clearly and definitely establish the occur-
rence of a substantial change . . . .’’ Weinstein v.
Weinstein, 104 Conn. App. 482, 492, 934 A.2d 306 (2007),
cert. denied, 285 Conn. 911, 943 A.2d 372 (2008). As the
power to modify is limited to adapting the order to
changes in circumstances, the court must limit its
inquiry to a comparison between the current conditions
and the conditions at the time of the last order. Borkow-
ski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060
(1994).
At the May, 2011 hearing, the plaintiff presented evi-
dence seeking to establish her claim of a change in
circumstances. She provided financial affidavits indi-
cating her inability to earn income consistent with her
earning capacity. She also testified and presented exhib-
its showing an increase in her expenses. Finally, she
presented evidence demonstrating that the defendant
had a sharp increase in his income since the dissolution
judgment. In an October, 2011 memorandum of deci-
sion, the court concluded that the plaintiff had not
established a substantial change in circumstances and
supported its conclusion with several factual findings.
First, the court found that the plaintiff’s earning
capacity had remained the same since the dissolution
judgment. In 2007, the court found that the plaintiff was
an experienced corporate attorney who, at the time,
was able to earn gross income of $78,500 over part of
the year while recovering from a fractured pelvis and
spending time attending to the divorce litigation.
Accordingly, the dissolution court assigned her a
$100,000 earning capacity on the basis of her ability to
work ten hours per week at a rate of $200 per hour.
See Elia v. Elia, 99 Conn. App. 829, 833, 916 A.2d 845
(2007) (in certain circumstances, court may base finan-
cial awards on earning capacity rather than actual
income earned). At the May, 2011 hearing, the plaintiff
claimed that in the years after the dissolution judgment,
her actual earnings had fallen well short of her assigned
earning capacity. As the court aptly noted, however,
there had been no change in the plaintiff’s skill, educa-
tion, or ability to justify a change to her earning capac-
ity. The court found that the plaintiff continued to work
on a part-time basis as a freelance attorney. As earning
capacity is ‘‘an amount which a person can realistically
be expected to earn considering such things as his [or
her] vocational skills, employability, age and health’’;
(internal quotation marks omitted) Weinstein v.
Weinstein, 280 Conn. 772, 764, 911 A.3d 1077 (2007);
the plaintiff had the burden of demonstrating a change
to one or more of those factors. See Angle v. Angle, 100
Conn. App. 763, 773–74, 920 A.2d 1018 (2007) (affirming
trial court’s determination that defendant’s postdivorce
incarceration was not substantial change to his earning
capacity); see also Wanatowicz v. Wanatowicz, 12
Conn. App. 616, 619, 533 A.2d 239 (1987) (reversing trial
court’s order because defendant’s postdivorce alcoholic
condition was not substantial change affecting his earn-
ing capacity). As the plaintiff’s ability to earn remained
largely the same since the dissolution judgment, the
court properly found no substantial change in the plain-
tiff’s earning capacity.
The court next found that the plaintiff had failed to
establish a significant increase in her expenses. At the
May, 2011 hearing, the plaintiff submitted evidence indi-
cating that she incurred weekly transportation costs
of $275.55, while the defendant incurred costs of only
$71.55. The plaintiff also submitted a summary of
expenses for the parties’ youngest child, which totaled
$63,401.31. The plaintiff, however, failed to submit any
evidence to support her claim that these expenses rep-
resented a change in conditions since the dissolution
judgment. Simply submitting the actual expenses to the
court does not, by itself, support the claim that she has
incurred costs greater than were originally contem-
plated in the dissolution judgment. See Borkowski v.
Borkowski, supra, 228 Conn. 738 (‘‘moving party must
demonstrate circumstances have change since the last
court order’’). In fact, the 2007 dissolution judgment
did order the plaintiff to bear a significant share of the
maintenance costs of the minor children. The dissolu-
tion judgment stated that ‘‘[t]he costs of extracurricular
activities and books . . . over $150 shall be shared
equally between the parents with the [plaintiff] paying
for anything less than $150.’’ The dissolution judgment
also ordered the parties to share equally the cost of their
younger son’s private high school tuition. The tuition
represented $34,200, or more than half of the plaintiff’s
claimed 2011 expenses. As these costs were properly
considered in the dissolution judgment, the court cor-
rectly concluded that they did not constitute a change
in circumstances.
Finally, the court found that although the defendant’s
base salary and bonuses had increased since the disso-
lution judgment, the increase was not substantial. The
court found that the defendant’s salary had increased
from $225,000 on the date of the dissolution judgment
to $260,000. The court also found that the defendant’s
annual bonus had increased from $115,000, on the date
of the dissolution judgment, to $175,000. Recently, in
Dan v. Dan, 315 Conn. 1, 10, A.3d (2014), our
Supreme Court concluded that ‘‘an increase in the sup-
porting spouse’s income, standing alone, ordinarily will
not justify the granting of a motion to modify an alimony
award.’’ In support of this conclusion, the court noted
that the purpose of alimony is to ‘‘ensure the continued
enjoyment of the standard of living that he or she
enjoyed during the marriage . . . .’’ Id., 11. Similarly, in
the context of support obligations, our appellate courts
have acknowledged that children ‘‘should receive the
same proportion of parental income as he or she would
have received if the parents lived together.’’ (Internal
quotation marks omitted.) Jenkins v. Jenkins, 243
Conn. 584, 594, 704 A.2d 231 (1998), citing Child Support
and Arrearage Guidelines, Preamble, § (c), p. ii. As both
alimony and child support orders are subject to the
same modification requirements under § 46b-86 (a), we
conclude that, under Dan, the plaintiff must show addi-
tional circumstances, beyond the defendant’s increased
income, to establish a substantial change in circum-
stances justifying a modification of child support.
‘‘[T]he purpose of a child support order is to provide
for the care and well-being of minor children, and not
to equalize the available income of divorced parents
. . . .’’ Battersby v. Battersby, 218 Conn. 467, 473, 590
A.2d 427 (1991). As a result, we conclude that the court
did not abuse its discretion when it determined that
the plaintiff had not established a substantial change
in circumstances in regard to her 2010 motion for modi-
fication of child support.3
In April 25, 2012, the court held a contested hearing
on the plaintiff’s 2008 motion for modification. At this
hearing, the plaintiff again argued that she had been
unable to earn income consistent with her earning
capacity, that her living expenses had increased, and
that the defendant’s income had increased substan-
tially. In November, 2012, the court denied her motion
because she had failed to show a substantial change
in circumstances. In its memorandum of decision, the
court followed the same analysis used in its October,
2011 decision. In addition, the court found that, due to
inconsistencies, the plaintiff’s financial affidavit was
not credible.4 As it is the exclusive province of the trier
of fact to resolve credibility determinations, the court
properly determined that the plaintiff’s financial affida-
vit should be given little weight, given the various incon-
sistencies it found. See State v. Ortiz, 95 Conn. App.
69, 81, 895 A.2d 834, cert. denied, 280 Conn. 903, 907
A.2d 94 (2006). We conclude that the court did not
abuse its discretion when it determined that the plaintiff
had not established a substantial change in circum-
stances in regard to her 2008 motion for modification
of child support.
B
We now turn to the defendant’s motion for modifica-
tion. In July, 2010, the defendant filed a motion for
modification of child support on ground that one of the
parties’ two sons had turned eighteen years old and
had graduated from high school. In October, 2011, the
court granted this motion on the basis that a child
reaching the age of majority constituted a substantial
change in circumstances. On appeal, the plaintiff argues
that the court had no legal basis for its conclusion.5
We disagree.
‘‘[T]he purpose of a child support order is to provide
for the care and well-being of minor children.’’ (Internal
quotation marks omitted.) Rostad v. Hirsch, 148 Conn.
App. 441, 460, 85 A.3d 1212, 1225, cert. granted on other
grounds, 311 Conn. 948, 949, 91 A.3d 463 (2014). ‘‘It is
. . . axiomatic that support for a minor child extends
to age eighteen only . . . .’’ Lowe v. Lowe, 47 Conn.
App. 354, 357, 704 A.2d 236 (1997); see also General
Statutes § 1-1d. Finally, it is well established that a child
attaining the age of majority constitutes a substantial
change in circumstances, justifying the modification of
a support order. Irizzary v. Irizzary, 29 Conn. App.
368, 614 A.2d 868 (1992).
Here, the court found that the parties’ older son, had
reached the age of majority on November 19, 2009.
This finding was properly supported by the dissolution
judgment, in which the court found, by a preponderance
of the evidence, that the parties’ older son was born
on November 19, 1991. Therefore, the court did not
abuse its discretion in concluding that the defendant
had established a substantial change in circumstances.6
II
Upon concluding that the court did not abuse its
discretion in reaching the threshold determination that
a substantial change in circumstances had occurred,
we now turn to the court’s decision to reduce the defen-
dant’s support order from $439 per week to $400 per
week. Specifically on appeal, the plaintiff claims that
the court improperly excluded various components of
the defendant’s income, improperly relied on the defen-
dant’s child support guidelines worksheet, and improp-
erly deviated from the child support guidelines.
‘‘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 and support are relevant to the
question of modification. . . . These require the court
to consider, without limitation, the needs and financial
resources of each of the parties and their children, as
well as such factors as health, age and station in life.
. . . In making its determination of the applicability of
these criteria, the trial court has broad discretion; the
test is whether the court could reasonably conclude
as it did. (Citations omitted; internal quotation marks
omitted.) Hardisty v. Hardisty, 183 Conn. 253, 258–60,
439 A.2d 307 (1981). Under this standard of review, we
now consider the plaintiff’s various claims.
A
The plaintiff first claims that the court improperly
excluded restricted stock and stock options when cal-
culating the defendant’s gross income. We disagree.
The following procedural history is relevant to this
claim. The 2007 dissolution judgment allocated both
the defendant’s current and future restricted stock and
stock options as part of the property distribution. The
plaintiff received an irrevocable 50 percent interest in
all stock options and restricted stock that had been
awarded, granted, or credited to the defendant prior
to the dissolution judgment. In addition, the judgment
stated that the stock options and restricted stock would
be ‘‘divided as part of the property settlement and shall
not be alimony or child support.’’ The dissolution judg-
ment also awarded the plaintiff a 50 percent interest
in any restricted stock or stock option awarded to the
defendant in 2008, 2009, 2010, or 2011.
In its October 2011 memorandum of decision, the
court found that, since the dissolution, the defendant
had exercised stock options in the amount of $190,361.
The court excluded this amount from the defendant’s
income because it already was subject to the court’s
property distribution orders.
Once property is distributed in accordance with a
dissolution decree, the court ceases to have jurisdiction
over that property. Smith v. Smith, 249 Conn. 265, 276,
752 A.2d 1023 (1999). Furthermore, courts may not con-
sider the liquidation of awarded property as income.
Simms v. Simms, 25 Conn. App. 231, 234, 593 A.2d 161,
cert. denied, 220 Conn. 911, 597 A.2d 335 (1991). When
the conversion of property reflects gains or profit, this
increase in value is also not considered income unless
it is shown to reflect a steady stream of income. Id.;
see Gay v. Gay, 266 Conn. 641, 647, 835 A.2d 1 (2003)
(sale of capital asset in particular year not consid-
ered income).
The plaintiff argues that restricted stock and stock
options are a form of deferred compensation that must
be included as income under the child support guide-
lines. This argument, however, fails because the plain-
tiff did not present evidence showing which, if any, of
the restricted stock or stock options were awarded to
the defendant postdissolution. As we have held, stock
options awarded at the time of dissolution do not consti-
tute income when they are later exercised; see Denley
v. Denley, 38 Conn. App. 349, 353–54, 661 A.2d 628
(1995); therefore, it was the plaintiff’s burden to distin-
guish between stock awarded prejudgment and stock
awarded postjudgment. There was no evidence that the
stock options exercised by the defendant were awarded
after the dissolution and, therefore, not a part of the
property distribution. With regard to the restricted
stock, there was evidence before the court indicating
that it was part of the property distribution. At the May,
2011 hearing, the defendant testified that his employer
awards him restricted stock each year, but that the
stock does not vest and transfer to him until four years
later. As that hearing was held fewer than four years
after the 2007 dissolution judgment, it was reasonable
for the court to conclude that all restricted stock had
been part of the original property distribution. Because
our review is limited to whether the court’s conclusions
are reasonable; Hardisty v. Hardisty, supra, 183 Conn.
260; we conclude that the court did not abuse its discre-
tion in excluding stock options and restricted stock
from the defendant’s income calculation.
B
The plaintiff next claims that the court erred when
it failed to include dividend and interest income in
determining the defendant’s gross income. We decline
to address the merits of this claim because the plaintiff
has inadequately briefed it.
‘‘We are not obligated to consider issues that are
not adequately briefed.’’ (Internal quotation marks omit-
ted.) Connecticut Coalition Against Millstone v. Con-
necticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345
(2008). The plaintiff’s brief provides minimal citation
to authority and no analysis as applied to the facts of
this case. See O’Connell, Flaherty & Attmore, LLC v.
Doody, 124 Conn. App. 1, 8, 3 A.3d 969 (2010). Further-
more, the plaintiff’s brief makes no reference as to the
amount of dividend or interest income, or whether there
had been a material change in that income source since
2007. Accordingly, we decline to address this claim
on appeal.
C
The plaintiff next claims that the court improperly
deviated from the child support guidelines when it
imputed to her a $100,000 earning capacity. We
disagree.
In the 2007 dissolution judgment, the court found
that the plaintiff had an earning capacity of $100,000.
The court explained its findings by stating that ‘‘[d]uring
the course of the marriage, the [plaintiff] worked full-
time as a corporate attorney, sometimes earning in
excess of the [defendant’s] salary. . . . She is highly
skilled and capable. She is presently working as a free-
lance corporate attorney . . . at $200 per hour . . . .
From mid-July, 2007 to Dec[ember] 12, 2007, she earned
$78,500 [in] gross [income], while undergoing recovery
from a fractured pelvis and spending many days and
hours attending to this ongoing litigation. . . . If she
billed 500 hours per year over fifty weeks or ten hours
per week, she would gross $100,000.’’
In denying the plaintiff’s motion for modification, the
court found that the plaintiff had failed to show that
her earning capacity had changed substantially since
the dissolution judgment. The court stated in its memo-
randum of decision that she reported $177,400 in gross
income from 2008, $95,550 in gross income from 2009,
and $115,412 in gross income from 2010. The court
also stated that these ‘‘gross income levels have been
achieved since the date of judgment by working part-
time.’’ Because the plaintiff had not established a sub-
stantial change in her earning capacity, the court
imputed this income in calculating the modified child
support order.
Upon concluding that the plaintiff remained capable
of earning $100,000 by working full-time, the court cor-
rectly applied the earning capacity from the original
dissolution judgment. See Borkowski v. Borkowski,
supra, 228 Conn. 738. The court found that the plaintiff
continued to be a highly skilled corporate attorney,
capable of working on a full-time basis. As a result, the
court did not abuse its discretion when it imputed an
earning capacity to the plaintiff.
D
The plaintiff also claims that the court improperly
excluded from its financial calculations certain
employee perquisites and recurring gifts received by
the defendant. We disagree.
With respect to the factual predicates for modifica-
tion of a child support order, our standard of review is
clear. ‘‘This court may reject a factual finding if it is
clearly erroneous, in that as a matter of law it is unsup-
ported by the record, incorrect, or otherwise mistaken.
. . . This court, of course, may not retry a case. . . .
The factfinding function is vested in the trial court with
its unique opportunity to view the evidence presented
in a totality of circumstances, i.e., including its observa-
tions of the demeanor and conduct of the witnesses
and parties, which is not fully reflected in the cold,
printed record which is available to us. Appellate review
of a factual finding, therefore, is limited both as a practi-
cal matter and as a matter of the fundamental difference
between the role of the trial court and an appellate
court.’’ (Internal quotation marks omitted.) Doody v.
Doody, 99 Conn. App. 512, 516–17, 914 A.2d 1058 (2007).
At the May, 2011 hearing, the plaintiff sought to prove
that the defendant had received $59,484 in perquisites
from his employer and $27,972 in recurring gifts in the
form of free rent from his sister. The court found that
in each instance, the plaintiff had not met her burden
of proof. In its October 20, 2011 memorandum of deci-
sion, the court explained its reasoning for excluding
both sources from the calculation of the defendant’s
income. First, the court explained that, under § 46b-
215a-1 (11) (A) (vi) of the Regulations of Connecticut
State Agencies, employment perquisites are to be con-
sidered income for the purposes of child support to
the extent that they represent ‘‘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 court then noted that although
the plaintiff had submitted an exhibit showing that the
defendant had received $59,484 in employer contribu-
tions, there was no evidence showing how much of
those contributions constituted food, shelter, transpor-
tation, or other basic needs. Second, the court found
that the defendant was currently residing, rent free, at
his sister’s home in Hartford during the winter months,
while residing at his cottage in Stonington, which was
awarded to him in the dissolution judgment, during the
summer months.
At the May, 2011 hearing, the plaintiff presented evi-
dence that in 2007, the defendant had rent and utility
expenses of $27,972 from an apartment that he had
rented at that time. On that basis, the plaintiff argued
that a rent free apartment constituted a regularly recur-
ring gift, valued at $27,972 per year. The court disagreed
and made several findings in support of its conclusion.
The court found that the defendant’s $27,972 in
expenses included not only rental fees for an apartment,
but also maintenance expenses related to the upkeep
of the Stonington cottage, which he had been awarded
in the dissolution judgment. The court also found that
the $27,972 in expenses were incurred over the entire
year, while the defendant only lived with his sister dur-
ing the winter months. Finally, the court found that the
plaintiff had presented no evidence indicating the rental
value of an apartment in the defendant’s sister’s neigh-
borhood in Hartford. Upon our review, we find nothing
in the record to undermine our confidence in the court’s
factual findings, and defer to its sound judgment in
reaching its conclusions.
E
The plaintiff next claims that the court, in modifying
the defendant’s child support obligation, improperly
relied upon the defendant’s child support guidelines
worksheet (worksheet). Specifically, the plaintiff
asserts that the court relied on an ‘‘unsworn’’ worksheet
and that the financial information on the defendant’s
worksheet was unsupported by the evidence. We find
both of these arguments unpersuasive.
Practice Book § 25-30 (e) requires parties with minor
children to ‘‘file a completed child support and arrear-
age guidelines worksheet at the time of any hearing
concerning child support . . . .’’ In addition to this
requirement, the parties are also required to submit to
the court certain sworn statements concerning income,
expenses, assets and liabilities. See Practice Book § 25-
30 (e); Gentile v. Carneiro, 107 Conn. App. 630, 654,
946 A.2d 871 (2008). The plaintiff incorrectly argues on
appeal that our rules of practice require all worksheets
to be sworn. We do not construe § 25-30 to be so restric-
tive. The defendant correctly filed a completed work-
sheet, as well as a sworn financial affidavit and other
documentation, in compliance with our rules of
practice.
The plaintiff’s next claim is that the defendant’s work-
sheet was not supported by the evidence. A court may
not rely on a worksheet unless it is based on some
underlying evidence. See Aley v. Aley, 101 Conn. App.
220, 229, 922 A.2d 184 (2007). In Aley, this court reversed
a child support order based exclusively on a worksheet
that had no evidentiary basis. Id., 229–30. In that case,
the defendant did not attend the dissolution proceed-
ings and had failed to submit a financial affidavit. Id.,
228–29. Further, the plaintiff provided no testimony,
nor did she submit any documentary evidence regarding
the defendant’s income. Id. As a result, this court con-
cluded that the worksheet was the only basis for the
trial court’s determination of the defendant’s income.
Id., 229. In contrast to Aley, the defendant in the present
case provided testimony regarding his income, a finan-
cial affidavit, and other documentary evidence in sup-
port of his child support worksheet. Because the
worksheet was based on underlying evidence, it was
reasonable for the court to rely on it when determining
the financial position of the parties.
Finally, the plaintiff makes two additional claims
regarding the use of the defendant’s worksheet. First,
the plaintiff argues that the court should not have
excluded certain sources of the defendant’s income on
the one hand, while also allowing him to deduct federal
taxes paid on those sources in determining his net
income. This argument, however, is inconsistent with
the plain language of the worksheet, which explicitly
instructed the defendant to deduct ‘‘Federal income tax
(based on all allowable exemptions, deductions and
credits).’’ As there is no distinction made between fed-
eral taxes paid on gross cash income and other forms
of income, we decline to follow the plaintiff’s logic.
Second, the plaintiff argues that the court incorrectly
deducted $73 per week for health insurance even
though she testified that her actual insurance costs were
$153 per week. Even if we agreed with the plaintiff, the
$153 deduction would have no impact on the presump-
tive child support amount as the combined net income
of the parties would still be greater than $4000 per
week. See part II F of this opinion. Although the record
is void of any support for court’s finding that the plain-
tiff’s health insurance cost was $73, we conclude that
this error is harmless because it is evident that the
court’s analysis would reach the same result.7 See Tay-
lor v. Taylor, 17 Conn. App. 291, 293, 551 A.2d 1285
(1989).
F
Having concluded that the court did not abuse its
discretion in determining the financial standing of the
parties, we now consider whether the court properly
modified the child support order from $439 per week
to $400 per week. The plaintiff argues that this modifica-
tion amounted to an improper deviation from the child
support guidelines (guidelines). The defendant argues
that the modification was well within the guidelines
and, therefore, did not constitute an abuse of discretion.
We agree with the defendant.
The following additional facts are relevant to this
claim. In its October, 2011 memorandum of decision,
the court found that the parties had a combined net
weekly income of $6440, with the defendant earning
$5175 per week, and the plaintiff having imputed earn-
ings of $1260 per week. The court also found that one
of the parties’ children had reached the age of majority,
and that the defendant was obligated to provide support
for only one child under the age of majority. After con-
sidering all of the relevant factors set forth in General
Statutes §§ 46b-84 and 46b-86, and the guidelines, the
court then ordered a reduction of child support from
$439 per week to $400 per week.
In determining the appropriate amount of child sup-
port, courts are provided with state guidelines and an
accompanying schedule. See Regs., Conn. State Agen-
cies § 46b-215a-2b (f). ‘‘[T]he schedule sets forth a pre-
sumptive percentage and resultant amount
corresponding to specific levels of combined net weekly
income; the schedule begins at $50 and continues in
progressively higher $10 increments, terminating at
$4000. . . . [Our Supreme Court] has recognized that
the guidelines nonetheless apply to combined net
weekly income in excess of that maximum amount. See
Maturo v. Maturo, [296 Conn. 80, 94–95, 995 A.2d 1
(2010)] ([the guidelines] provide that all child support
awards must be made in accordance with the principles
established therein to ensure that such awards promote
equity, uniformity and consistency for children at all
income levels . . .); see also Misthopoulos v. Mistho-
poulos, [297 Conn. 358, 367, 999 A.2d 721 (2010)] (rely-
ing on Maturo for this principle); Tuckman v. Tuckman,
[308 Conn. 194, 205–206, 61 A.3d 449 (2013)] (same).
Indeed, the regulations direct that, [w]hen the parents’
combined net weekly income exceeds $4,000, child sup-
port awards shall be determined on a case-by-case
basis, and the current support prescribed at the $4,000
net weekly income level shall be the minimum presump-
tive amount. Regs., Conn. State Agencies § 46b-215a-2b
(a) (2).
‘‘While the regulations clearly demarcate the pre-
sumptive minimum amount of the award in high
income cases, they do not address the maximum per-
missible amount that may be assigned under a proper
exercise of the court’s discretion. In order to provide
some guidance to the trial courts on this matter without
unduly encroaching on the purposeful decision of the
legislative branch not to prescribe an amount or method
for calculating that maximum amount, this court has
remained mindful that the guidelines . . . indicate that
such awards should follow the principle expressly
acknowledged in the preamble [to the guidelines] and
reflected in the schedule that the child support obliga-
tion as a percentage of the combined net weekly income
should decline as the income level rises. . . . Mistho-
poulos v. Misthopoulos, supra, 297 Conn. 368. We there-
fore have determined that child support payments . . .
should presumptively not exceed the [maximum] per-
cent [set forth in the schedule] when the combined net
weekly income of the family exceeds $4000, and, in
most cases, should reflect less than that amount. See
Maturo v. Maturo, supra, 296 Conn. 96.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Dowling v. Szymczak, 309 Conn. 390, 400–401, 72
A.3d 1 (2013).
In the present case, the court properly applied the
guidelines consistent with our regulations and case law.
The parties earned a combined weekly income of over
$4000. This meant that, pursuant to the guidelines, the
presumptive floor of child support for one child was
$473 per week. The presumptive ceiling, consistent with
the holding of Dowling, was to be no more than 11.83
percent of the parties’ combined net weekly income.
As the court found that the parties had a combined
income of $6440 per week, the presumptive ceiling was
determined to be $761 per week. The court then deter-
mined that the defendant’s income represented 80 per-
cent of the combined income, and, therefore, his
obligation should be limited to 80 percent of the total
amount of child support. Thus, the court reduced the
defendant’s child support range by 20 percent to a ‘‘floor
of $378 and a ceiling of $608.’’ We must conclude then,
that the court’s decision to modify the support order
to $400 per week was well within the guidelines and,
therefore, was not an abuse of discretion.
III
The plaintiff next claims that the court improperly
failed to find the defendant in contempt for wilfully
violating its order. We disagree.
The following additional facts are relevant to our
resolution of this claim. In 2011, this court remanded
the plaintiff’s 2008 motion for modification of child
support for an evidentiary hearing. See McKeon v. Len-
non, supra, 131 Conn. App. 599–600. The trial court
scheduled the hearing for April 25, 2012. On April 13,
2012, the plaintiff served notice on the defendant,
requiring him to attend a deposition scheduled for April
20, 2012. On April 19, 2012, at 2 p.m., the court held a
discovery hearing where, at its conclusion, the defen-
dant was ordered to bring his tax returns, bank records,
and financial affidavits to the deposition. At the time,
the defendant was traveling for business and did not
return until late that night. On April 20, 2012, the defen-
dant attended the deposition, but did not produce the
ordered documents. On April 25, 2012, the plaintiff filed
a motion for contempt against the defendant alleging
that his failure to produce court-ordered financial docu-
ments prejudiced her ability to prepare for the hearing.
At the April 25, 2012 hearing, the court heard argu-
ment on the plaintiff’s motion for contempt. The defen-
dant admitted that he had not produced the required
documents at the deposition, but stated that he was
unable to produce the documents because of the short
period of time between the order and the deposition.
After hearing from both sides, the court asked the plain-
tiff if she was ‘‘claiming that [she was] somewhat preju-
diced because [she did not have] enough time to prepare
with all that information that [she] requested [and if
she was] asking for more time?’’ The plaintiff did not
request a continuance and stated that she would like
to proceed with the hearing on the 2008 motion for mod-
ification.
On November 20, 2012, the court denied the plaintiff’s
motion for contempt. In its memorandum of decision,
the court found that although the defendant had not
complied with the court’s order, his noncompliance was
not wilful.
We begin our analysis by setting forth the appropriate
legal standard. ‘‘A finding of contempt is a question of
fact.’’ (Internal quotation marks omitted.) Gil v. Gil, 94
Conn. App. 306, 311, 892 A.2d 318 (2006). ‘‘We review
the court’s factual findings in the context of a motion
for contempt to determine whether they are clearly
erroneous.’’ Dionne v. Dionne, 115 Conn. App. 488, 494,
972 A.2d 791 (2009). ‘‘For the court to properly find a
party in contempt, that party’s noncompliance with the
court’s order must be willful.’’ Brody v. Brody, 145
Conn. App. 654, 665, 77 A.3d 156 (2013). A finding of
noncompliance alone will not support a judgment of
contempt. Lawrence v. Lawrence, 92 Conn. App. 212,
214, 883 A.2d 1260 (2005).
In the present case, the court found that although the
defendant had been noncompliant with the discovery
order, he had not been wilfully noncompliant. In sup-
port of this conclusion, the court found that the discov-
ery order had been issued on the afternoon before the
scheduled deposition. On the day prior to the deposi-
tion, the defendant had been traveling for business and
did not arrive at home until late that night. The court
found that on the day of the deposition, the defendant
went to work and then went directly to the deposition.
As a result, the court reasonably concluded that ‘‘[i]t
was not possible for the defendant to produce the
ordered documents in such short notice.’’ As the court’s
findings were clearly supported by the evidence, we
conclude that the court properly denied the plaintiff’s
motion for contempt.
IV
The plaintiff’s final claim is that the court erred when
it denied her motion for appellate attorney’s fees. The
plaintiff argues that because of errors in calculating
the defendant’s income, the court based its denial on
inaccurate financial information. We disagree.
In support of her claim, the plaintiff reasserts the
same arguments that we addressed in part II of this
opinion. The plaintiff does not allege any other indepen-
dent basis for reversal; she only argues that if her other
claims are remanded for further consideration, then her
motion for attorney’s fees should also be remanded.
This argument might have merit if we agreed with the
plaintiff on her earlier claims. Earlier in this opinion,
however, we concluded that the court properly calcu-
lated the financial positions of the parties. Conse-
quently, we reject the plaintiff’s claim that the court
improperly denied her motion for attorney’s fees.
The judgments are affirmed.
In this opinion the other judges concurred.
1
That appeal, AC 30068, was consolidated with four other appeals filed
by the plaintiff, AC 30067, AC 30069, AC 30070, and AC 30636.
2
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any 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 or
upon a showing that the final order for child support substantially deviates
from the child support guidelines established pursuant to section 46b-215a,
unless there was a specific finding on the record that the application of the
guidelines would be inequitable or inappropriate. There 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. Modification may be made of
such support order without regard to whether the order was issued before,
on or after May 9, 1991. 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. By written agreement, stipulation or decision of the court, those
items or circumstances that were contemplated and are not to be changed
may be specified in the written agreement, stipulation or decision of the
court. . . . If a court, after hearing, finds that a substantial change in circum-
stances of either party has occurred, the court shall determine what modifica-
tion of alimony, if any, is appropriate, considering the criteria set forth in
section 46b-82.’’
3
The plaintiff cites several cases in which our appellate courts have upheld
findings of a substantial change in circumstances on the basis of an increase
in the defendant’s income. See, e.g., Schwarz v. Schwarz, 124 Conn. App.
472, 478–79, 5 A.3d 548 (upholding trial court’s finding that 20 percent
increase in gross income was a substantial change), cert denied, 299 Conn.
909, 10 A.3d 525 (2010); Serby v. Serby, 4 Conn. App. 398, 401, 494 A.2d
617 (1985) (upholding 20 percent increase in gross income was substantial
change). We disagree, however, with the plaintiff’s conclusion that these
cases require us to reverse the court’s denial of her motion. The cited cases
considered the question of whether to uphold the court’s conclusion of a
substantial change in circumstances, while in the present case we are asked
to review the court’s determination that the plaintiff had failed to establish
a substantial change. ‘‘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 relations matters, we allow every reasonable
presumption in favor of the correctness of its action.’’ (Internal quotation
marks omitted.) Cleary v. Cleary, 103 Conn. App. 798, 800, 930 A.2d 811
(2007).
4
The court found several inconsistencies between the plaintiff’s financial
affidavit and her supporting documents. First, the plaintiff estimated her
weekly income using only income she had been paid and omitted $10,000
in income that was earned, but not yet received. Next, she claimed weekly
expenses of $9684. In support of this claim, she submitted exhibits claiming
that she had paid a total of $219,515 in credit card bills from May, 2011
through April, 2012. After reviewing the documents, however, the court
concluded that the credit card bills were from November, 2010 through
May, 2012. The court also found that the plaintiff’s affidavit overestimated
her monthly credit card debt payment by $7441.63. Finally, the court noted
that the 2007 dissolution judgment found that the parties’ marital home had
$85,000 worth of furnishings. The plaintiff’s most recent financial affidavit
claimed only $3000 worth of furnishings.
5
We note that the plaintiff previously had argued before the trial court
that ‘‘Connecticut law does not permit the court to order support for a child
over the age of majority except through education support orders or medical
insurance.’’ At that time, she was challenging an order from the dissolution
judgment that required her to pay maintenance costs for her adult daughter’s
car. On appeal, she now takes the opposite position that the court has no
authority to reduce child support on the basis that their older son had
reached the age of majority.
6
The plaintiff additionally argues that the court abused its discretion
when it found a substantial change in circumstances without requiring the
defendant to rebut the presumption that reductions in child support of less
than 15 percent are not substantial. She bases this argument on § 46b-86
(a), which provides in relevant part that any deviation of less than 15 percent
from the child support guidelines is not substantial. The plaintiff’s reliance
on § 46b-86 (a), however, is misplaced. The reference to a 15 percent pre-
sumption does not apply to a substantial change in circumstances but,
rather, applies to situations where the final order deviated substantially
from the child support guidelines. See Schwarz v. Schwarz, 124 Conn. App.
472, 477, 5 A.3d 548, cert. denied, 299 Conn. 909, 10 A.3d 525 (2010).
7
Under the plaintiff’s argument, her net income would be reduced by
$153 in health insurance costs, rather than by $73. This reduction would
leave her with a net income of $1180 per week, while the defendant’s income
would remain at $5175 per week. The parties would then have a total weekly
income of $6355, with the defendant earning 81.43 percent and the plaintiff
earning 18.57 percent. Applying these percentages to the child support guide-
lines, we calculate the presumptive range of support to be between $385
and $612 per week. Following the plaintiff’s argument results in a range
that is substantially the same as the range calculated by the court in its
October, 2011 memorandum of decision ($378 to $608). Thus, even if we
adopted the plaintiff’s argument, we would still conclude that the court’s
order of $400 per week in child support was squarely within the presumptive
range of the child support guidelines.