LeSueur v. LeSueur ( 2017 )

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JANINE LESUEUR v. ANDREW LESUEUR
(AC 38300)
DiPentima, C. J., and Prescott and Bear, Js.
Argued December 7, 2016—officially released May 9, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee; Tindill, J. [motion to open judgment and for
modification of custody and child support].)
Harold R. Burke, for the appellant (defendant).
Gaetano Ferro, with whom, on the brief, was Olivia
M. Hebenstreit, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. In this postdissolution marital mat-
ter, the defendant, Andrew LeSueur, appeals from the
judgment of the trial court modifying custody and child
support orders that had been entered at the time of
the dissolution. The defendant contends that the court
erred in failing to (1) grant a child support overpayment
credit retroactive to any period prior to December 9,
2014, and (2) award child support to the defendant for
the time period between June, 2014,1 and the end of
the 2016 school year. We affirm the judgment of the
trial court.
We set forth the following facts and procedural his-
tory pertinent to this appeal. The plaintiff, Janine LeS-
ueur, married the defendant on November 28, 1992. On
January 27, 2011, the marriage was dissolved. At that
time, the parties had two minor children: a daughter,
born in July, 1997; and a son, born in January, 1999.
The judgment of dissolution incorporated the parties’
separation agreement that provided that the plaintiff
and the defendant would have joint legal custody and
the plaintiff primary physical custody of the two chil-
dren. The separation agreement also provided, inter
alia, that the defendant would pay the plaintiff unallo-
cated alimony and child support from March 1, 2011
until June 30, 2020.
In September, 2013, the parties’ daughter, who was
sixteen years old at the time, started to reside primarily
with the defendant.2 On June 3, 2014, the defendant
filed a postjudgment motion to open the judgment of
dissolution and for modification of custody and child
support, hereinafter referred to as the motion for modi-
fication. In that motion, the defendant explained that
‘‘[s]ince the date of judgment, the circumstances con-
cerning the custody of the minor children have changed
substantially . . . [the daughter], now nearly [seven-
teen] years old, has stated that she wishes to reside
primarily with [the defendant] . . . . By agreement of
the parties, [the daughter] has resided temporarily with
[the defendant] for nearly nine months and she has
found this arrangement to be beneficial. . . . Given
that [the] defendant has been financially responsible
for [the daughter] during the period that she has resided
with him, and will be financially responsible for her
should [primary physical] custody of [the daughter] be
modified, child support payable from [the] plaintiff to
[the] defendant is appropriate and warranted.’’ In addi-
tion, the defendant’s motion for modification concluded
by requesting that the court: (1) modify the primary
physical custody of the daughter from the plaintiff to
the defendant; (2) afford the plaintiff liberal and flexible
parenting time with the daughter; (3) provide a child
support award for his care of the daughter; (4) modify
the parental notification requirement contained in the
separation agreement from four hours to twenty-four
hours; and (5) modify his child support obligation to
the plaintiff.
The defendant’s motion for modification came before
the court, Tindill, J., on May 7, 2015, and the court
issued a memorandum of decision on July 31, 2015. In
its memorandum of decision, the court set forth the
following procedural history relevant to this appeal.
The court began by explaining that on July 14, 2014,
the parties negotiated an agreement, which the court,
Heller, J., approved and entered as an order of the
court. ‘‘The agreement, among other things, 1) opened
the judgment, 2) modified [primary] physical custody
of [the daughter] to the defendant, 3) granted liberal and
flexible parenting time and telephone contact between
[the daughter] and the plaintiff, and 4) marked the
remaining issues contained in the motion off to be
reclaimed until either a September 10, 2014 status con-
ference or one party notifying the other that [the daugh-
ter] living with the defendant was not in her best
interests.’’3
At the September 10, 2014 status conference, the
court, Colin, J., ordered the parties to complete a family
services intake within three weeks, which was delayed
until October 9, 2014. After meeting with the family
relations counselor, the parties informed the court, on
December 5, 2014, that they needed a date to enter the
agreement they negotiated with the assistance of family
relations. The parties entered a second agreement
regarding the pending motion for modification, which
was approved and ordered by the court, Novack, J., on
December 9, 2014. That ‘‘agreement provided for the
continuation of the July 14, 2014 [agreement] (the first
agreement on the pending motions) so long as the defen-
dant encouraged and fostered a relationship between
[the daughter] and [the plaintiff,] and allowed [the
daughter] reasonable and flexible access between the
parties’ homes. The remaining issues in the defendant’s
motion—new child support orders and the [four] hour
parental notification requirement—were not addressed
in the two agreements.’’
On May 7, 2015, the court, Tindill, J., held a hearing
on the defendant’s motion for modification with respect
to, among other things, the plaintiff’s child support obli-
gation for the daughter. With respect to the May 7, 2015
hearing, the court in its July 31, 2015 memorandum of
decision noted that the parties’ ‘‘separation agreement
contemplates modification for the substantial change
in circumstances claimed, namely a change in (one of)
the minor children’s primary residence.’’ The court then
stated that it found ‘‘that the custody and parenting
arrangement to which the parties stipulated in [their
separation agreement] was observed until September,
2013, when it was decided, by mutual agreement of the
parents with input from the child’s therapist, that their
daughter . . . would reside full-time with [the defen-
dant]. The defendant’s motion for modification, there-
fore, is granted.’’
In determining the amount of child support that was
appropriate under the circumstances of this case, the
court explained that it considered the Connecticut child
support guidelines and the parties’ finances. Accord-
ingly, ‘‘[t]he court adopts the figure of $170 per week
offered by the defendant in his proposed orders for the
plaintiff’s child support obligation [for the daughter].
The court declines to make a finding regarding what
percentage of the January, 2011 unallocated support
order4 should be calculated as child support.’’ The court
further stated that although the defendant sought finan-
cial orders in his motion for modification, ‘‘he did not
submit a signed, sworn financial affidavit until ordered
to 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, at the time of the judg-
ment of dissolution. . . . Given the current ages and
level of maturity of the parties’ children, the court finds
that the notification requirement of the separation
agreement should be adjusted.’’ (Footnote omitted.)
This appeal followed. Additional facts will be set forth
as necessary.
Before addressing the merits of the defendant’s
appeal, we first set forth our well established standard
of review in domestic relations matters. ‘‘[T]his court
will not disturb trial court orders unless the trial court
has abused its legal discretion or its findings have no
reasonable basis in the facts. . . . As has often been
explained, the foundation for this standard is that the
trial court is in a clearly advantageous position to assess
the personal factors significant to a domestic relations
case. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Notwithstanding
the great deference accorded the trial court in dissolu-
tion proceedings, a trial court’s ruling . . . may be
reversed if, in the exercise of its discretion, the trial
court applies the wrong standard of law.’’ (Citations
omitted; internal quotation marks omitted.) Gabriel v.
Gabriel, 324 Conn. 324, 336, A.3d (2017). Guided
by these principles, we address in turn each of the
defendant’s claims.
I
The defendant first claims that the court erred in
failing to grant a child support overpayment credit retro-
active to any period prior to December 9, 2014. The
defendant presents two statutory bases to support his
claim. He contends that (A) pursuant to General Stat-
utes § 46b-224, the court was obligated to issue a child
support credit retroactive to July 14, 2014, which was
the date that the court approved the parties’ first
agreement modifying the primary physical custody of
the daughter on a temporary basis and (B) pursuant
to General Statutes § 46b-86 (a), the court abused its
discretion in failing to issue a child support credit retro-
active to June 30, 2014, which was the date that the
defendant’s motion for modification was served on the
plaintiff.5 We disagree.
A
We first address the defendant’s argument that, pur-
suant to § 46b-224, the court was obligated to issue a
child support credit retroactive to July 14, 2014, the
date that the court approved the parties’ first agreement
modifying the primary physical custody of the daughter
on a temporary basis. Specifically, the defendant con-
tends that the court failed to apply § 46b-224, which
permitted him, as the obligor of child support, to sus-
pend child support payments upon the court’s issuance
of the order modifying custody of the daughter on July
14, 2014. Therefore, he argues, his child support obliga-
tion for the daughter should have been modified retro-
active as of July 14, 2014, rather than December 9, 2014.
We are not persuaded.
‘‘Section 46b-224 specifically addresses the question
of how a change in custody affects the payment of child
support . . . .’’ Tomlinson v. Tomlinson, 305 Conn.
539, 549, 46 A.3d 112 (2012). Under § 46b-224: ‘‘When-
ever . . . the Superior Court, in a family relations mat-
ter, as defined in section 46b-1, orders a change or
transfer of the guardianship or custody of a child who
is the subject of a preexisting support order, and the
court makes no finding with respect to such support
order, such guardianship or custody order shall operate
to: (1) [s]uspend the support order if guardianship or
custody is transferred to the obligor under the support
order; or (2) modify the payee of the support order to be
the person or entity awarded guardianship or custody of
the child by the court, if such person or entity is other
than the obligor under the support order. Thus, 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 in
either case is the same: the originally designated payee
who no longer has custody of the child does not con-
tinue to receive support payments following the change
in custody, and the payments are retained by or redi-
rected to the party who does have custody.’’ (Internal
quotation marks omitted.) Id., 549–50.
Moreover, ‘‘[m]odification, 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.’’ (Internal quotation mark omitted.)
Coury v. Coury, 161 Conn. App. 271, 299, 128 A.3d 517(2015). For example, in Tomlinson, our Supreme Court
expressly noted that: ‘‘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 custodian holds the payments for the bene-
fit of the child. Consequently, once custody changes,
there is no immediately apparent reason for the former
custodian to continue to receive the payments because
the presumption is that the former custodian is no
longer primarily responsible for providing the children’s
necessary living 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 parents’ contractual agreement, would contravene
the purpose of child support.’’ Tomlinson v. Tomlinson,
supra, 305 Conn. 555.
Turning to the present case, the defendant argues
that the court did not give proper effect to § 46b-2246
when it modified his child support obligation retroac-
tive to December 9, 2014, instead of the date that the
custody of the daughter was modified by a court order
on July 14, 2014. Specifically, the defendant’s brief pro-
vides: ‘‘[H]ad the defendant’s child support obligation
for [the daughter] been clearly identified in a separate
child support order, § 46b-224 would have permitted
him to suspend all child support payments upon the
issuance of the July 14, 2014 order. However, given that
the child support component of an unallocated order
must first be ascertained before payments may be per-
missibly suspended . . . the only manner by which
§ 46b-224 can be given effect is through the issuance
of a full credit for overpayments occurring during the
relevant period.’’7 (Citation omitted.) We are not per-
suaded.
Although on July 14, 2014, the court approved and
entered as an order of the court the parties’ agreement
that modified the primary physical custody of the
daughter, this agreement, by its terms, modified the
custody of the daughter solely on a temporary basis
and that the plaintiff continued to pay for the daughter’s
necessary living expenses after that date. Further, it is
§ 46b-86, rather than § 46b-224, which provides the
court with the discretion to determine the most appro-
priate date of retroactivity for child support awards.
See Hane v. Hane, 158 Conn. App. 167, 172–73, 118
A.3d 685 (2015).
With respect to our conclusion, we acknowledge that
there were multiple agreements modifying the custody
of the daughter during the pendency of the defendant’s
motion for modification. According to the parties’ first
agreement dated July 14, 2014, the primary physical
custody of the daughter was modified on a temporary
basis. The parties’ second agreement dated December
9, 2014, modified the primary physical custody of the
daughter on a permanent basis by continuing the order
of the July 14, 2014 agreement. In approving the parties’
second agreement and entering it as an order, the court
explained that December 9, 2014 was the date that ‘‘the
defendant knew or reasonably should have known . . .
that the living arrangement with his daughter was no
longer temporary . . . .’’
In addition, the record from the May 7, 2015 hearing
on the defendant’s motion for modification supports
the court’s decision to modify the defendant’s child
support obligation retroactive to December 9, 2014,
rather than July 14, 2014. As discussed in part I B of
this opinion, the record also reveals that the plaintiff
continued to provide monetary support for the daugh-
ter’s necessary living expenses after the parties entered
into the July 14, 2014 agreement. Specifically, at the
May 7, 2015 hearing, the plaintiff testified that she con-
tinued to pay for part of the daughter’s school tuition,
she provided the daughter with a monthly allowance,
she purchased her clothing, she provided and paid for
a credit card for her daughter, she paid her daughter’s
cell phone bill, she maintained a bedroom for her daugh-
ter at her house, and she had her daughter over for
weekly dinners. Although our Supreme Court pre-
viously has stated in Tomlinson, that ‘‘once custody
changes, there is no immediately apparent reason for
the former custodian to continue to receive the pay-
ments because the presumption is that the former custo-
dian is no longer primarily responsible for providing
the children’s necessary living expenses,’’ in the present
case the plaintiff’s testimony rebuts such a presumption
as there was undisputed evidence indicating that she
continued to have expenses associated with the daugh-
ter’s care after entering into the July 14, 2014 agreement.
See Tomlinson v. Tomlinson, supra, 305 Conn. 555.
For the foregoing reasons, we conclude that the court
did not abuse its discretion in modifying the defendant’s
child support obligation retroactive to December 9,
2014, rather than to July 14, 2014, because it reasonably
determined that December 9, 2014, was the proper date
given that as of that date the primary physical custody
of the daughter ‘‘was no longer temporary.’’ (Empha-
sis added.)
B
We next address the defendant’s argument that, pur-
suant to § 46b-86 (a), the court should have issued a
child support credit retroactive to June 30, 2014, the
date that his motion for modification was served. We
disagree.
The defendant’s motion for modification was brought
pursuant to § 46b-86 (a), which ‘‘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). According to § 46b-
86 (a), ‘‘[n]o order for periodic payment of permanent
alimony or support may be subject to retroactive modifi-
cation, 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 sup-
port order from the date of service of notice of such
pending motion upon the opposing party . . . . We
have held previously that parties must comply strictly
with § 46b-86 (a) before a court may determine whether
to retroactively modify support orders.’’ (Emphasis
added; internal quotation marks omitted.) Coury v.
Coury, supra, 161 Conn. App. 294.
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.
Specifically, in Hane, we expressly noted that a ‘‘retro-
active 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.’’ (Internal quotation
marks omitted.) Hane v. Hane, supra, 158 Conn. App.
176. Moreover, § 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 during which there is a pending motion for modi-
fication.’’ (Emphasis added.)
In the present case, the defendant’s motion for modi-
fication was served on June 30, 2014, and was pending
until the court issued its memorandum of decision on
July 31, 2015. See Lucas v. Lucas, 88 Conn. App. 246,
255–57, 869 A.2d 239 (2005) (motion for modification
was pending for purposes of retroactivity when initial
motion was undecided and relief sought did not change
from initial motion for modification to amended motion
for modification). During the time that the motion for
modification was pending, the court approved and
entered as an order the parties’ July 14, 2014 agreement,
which modified the primary physical custody of the
daughter on a temporary basis. On December 9, 2014,
the court ordered the change in custody of the daughter
on a permanent instead of a temporary basis. In its
memorandum of decision, the court expressly
explained its rationale for deciding to modify the defen-
dant’s child support obligation retroactive to December
9, 2014, by stating that this was the date that ‘‘the defen-
dant knew or reasonably should have known on this
date, when he made a second agreement with the plain-
tiff mother regarding modification of [the primary]
physical custody of [the daughter], that the living
arrangement with his daughter was no longer tempo-
rary . . . .’’
We conclude that a modification to the defendant’s
child support obligation retroactive to December 9,
2014, rather than to June 30, 2014, was permissible
under the statute and well within the discretion of the
court. The plain language of § 46b-86 (a) does not
require the court to make a modification [retroactive]
to the date of service of the motion. Rather, § 46b-86
(a) provides in relevant part: ‘‘[T]he court may order
modification retroactive with respect to any period dur-
ing 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 . . . .’’ (Emphasis
added.) In addition, this court previously has explained
that an order that modified child support on a temporary
basis was not considered a final order and was thus
still pending for purposes of retroactivity. See Esposito
v. Banning, 110 Conn. App. 479, 483–85, 955 A.2d 609,
cert. denied, 289 Conn. 946, 959 A.2d 1011 (2008).
We further conclude that the court acted within its
discretion when it ordered the modification of the
defendant’s child support obligation retroactive to
December 9, 2014. First, the defendant’s motion for
modification did not expressly request the court to
make any modification retroactive to the date of ser-
vice; rather, the record indicates that the first time that
he asked for a retroactive modification was at the Feb-
ruary 25, 2015 hearing,8 which was eight months after
the motion for modification was served. Next, during
the May 7, 2015 hearing on the defendant’s motion for
modification, the plaintiff testified that after the parties
entered the July 14, 2014 agreement, she had continued
to pay for many of the daughter’s day-to-day expenses,
which included her monthly allowance, food, clothing
and her cell phone bill, as well as expenses associated
with a family vacation and shelter expenses. The plain-
tiff’s expenses largely remained the same as the daugh-
ter still had her bedroom at the plaintiff’s house and
would come over for weekly dinners. Third, in determin-
ing that December 9, 2014, was the proper date for
retroactivity, the court reasoned that that was the date
in which it found the primary physical custody of the
daughter to be no longer temporary.
In addition, the court did not have the information
necessary to make its child support orders retroactive
to June 30, 2014, because the parties did not submit
financial affidavits at or close to that date, nor did the
defendant file a child support guidelines worksheet as
required under § 46b-215b. See Malpeso v. Malpeso, 165
Conn. App. 151, 166, 138 A.3d 1069 (2016) (child support
guidelines ‘‘shall be considered in all determinations of
child support award amounts’’ [emphasis in original]).
The court also made a note of this in its memorandum
of decision, where it stated: ‘‘Though the defendant
seeks financial orders in the instant motion, he did not
submit 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, at the time of the judg-
ment of dissolution.’’ (Footnote omitted.) Thus, the par-
ties did not provide the court with a sufficient factual
basis for it to evaluate their financial circumstances or
the changes in their needs at the time the motion for
modification was served on June 30, 2014.
To summarize, we emphasize that it is well within the
court’s discretion to make a modification retroactive 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;
internal quotation marks omitted.) Coury v. Coury,
supra, 161 Conn. App. 294; see also General Statutes
§ 46b-86 (a). As the motion for modification was pend-
ing from June 30, 2014 until July 31, 2015, the court had
the discretion to make the child support modification
retroactive to any time during those eleven months that
was reasonably supported by the record. In its orders,
the court modified the defendant’s child support obliga-
tion retroactive 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. Therefore, given the circum-
stances of this case, it was not an abuse of discretion
for the court to order the modification of the defen-
dant’s child support obligation retroactive to December
9, 2014.
II
The defendant next claims that the trial court erred
in failing to award him child support for the time period
between June, 2014,9 and the end of the 2016 school
year. In particular, the defendant contends that in its
July 31, 2015 orders, the court made no provision per-
taining to the daughter’s child support or the parties’
child support obligation for the daughter after July 31,
2015. We are not persuaded that the court erred.
We begin by setting forth the applicable legal princi-
ples relevant to this claim. Pursuant to General Statutes
§ 46b-84 (b), ‘‘[i]f there is an unmarried child of the
marriage who has attained the age of eighteen and is
a full-time high school student, the parents shall main-
tain the child according to their respective abilities if
the child is in need of maintenance until such child
completes the twelfth grade or attains the age of nine-
teen, whichever occurs first.’’
A review of the record demonstrates that according
to the parties’ separation agreement, the amount that
the defendant had agreed to pay the plaintiff as unallo-
cated alimony and child support was reduced beginning
on July 31, 2015. On that same day, the court granted
the defendant’s motion for modification. In its memo-
randum of decision, the court, in considering the statu-
tory criteria, explained: ‘‘The Connecticut child support
guidelines provide for a presumptive child support
award of $985 per week (up until July 1, 2015) for two
children in a split custody arrangement based upon
the parties’ combined net weekly income of $11,710 of
which the defendant’s income comprises 86 [percent].
The Connecticut child support guidelines provide for
a presumptive child support award of $1004 per week
(from July 1, 2015 forward) for two children in a split
custody arrangement based upon the parties’ combined
net weekly income of $11,710 of which the defendant’s
income comprises 86 [percent]. Because the parties’
combined net weekly income exceeds $4000, the court
articulate[d] the following grounds for deviation based
on the evidence submitted: the defendant[’s] earning
capacity, coordination of total family support—specifi-
cally, the division of assets and liabilities, provision
of alimony and tax planning considerations, and the
parties’ each having physical custody of one of their
children. See § 46b-215a-3 (b) (5) and § 46b-215a-3 (b)
(4) (C) of the Child Support and Arrearage Guidelines
Regulations. The court adopts the figure of $170 per
week offered by the defendant in his proposed orders
for the plaintiff’s child support obligation.’’
The court then entered the following orders: (1) ‘‘[t]he
defendant is awarded retroactivity to December 9, 2014.
The amount of child support for which he is responsible
for December 9, 2014 to July 31, 2015 (34 weeks) is
$27,805;’’ (2) ‘‘[c]ommencing September 1, 2015, the
defendant shall pay to the plaintiff the required amount
of support pursuant to the January 27, 2011 separation
agreement, $51,806.40 (per calendar year) of which rep-
resents child support to the plaintiff for one minor
child;’’ (3) ‘‘[t]he plaintiff shall reimburse the defendant
$27,805 no later than September 1, 2015;’’ and (4) ‘‘[a]ll
other provisions of the parties’ agreement10 should
remain undisturbed at this time as they were intended
by the parties and negotiated and agreed upon with the
advice of legal counsel.’’11
The court did not expressly indicate in its orders
whether the plaintiff was obligated to provide the defen-
dant child support for his care of the daughter after
July 31, 2015. Under our rules of practice, ‘‘[i]t is the
responsibility of the appellant to provide an adequate
record for review.’’ Practice Book § 61-10; see also Prac-
tice Book § 66-5. Absent evidence to the contrary, we
assume that the trial court acted properly. Decastro v.
Odetah Camping Resort, Inc., 170 Conn. App. 581, 588
n.2, A.3d (2017) (‘‘we are entitled to assume,
unless it appears to the contrary, that the trial court
. . . acted properly’’); Keller v. Keller, 167 Conn. App.
138, 147, 142 A.3d 1197 (‘‘absent evidence to contrary,
we assume that court acted properly’’), cert. denied,
323 Conn. 922, 150 A.3d 1151 (2016). Accordingly, we
assume that the court found that the plaintiff had no
child support obligation to the defendant for his care
of the daughter after July 31, 2015. See id.The record contains evidence to support that finding.
As discussed in the preceding paragraph, in addition
to finding the plaintiff’s presumptive child support obli-
gation of $170, the court set forth the grounds for deviat-
ing from the presumptive child support amount based
on the evidence submitted at the May 7, 2015 hearing.
The grounds for deviation included, inter alia, ‘‘the
defendant father’s earning capacity, coordination of
total family support—specifically, the division of assets
and liabilities, provision of alimony and tax planning
considerations, and the parties’ each having physical
custody of one of their children.’’ The record also
reveals that the parties’ separation agreement provides
for a reduction in the percentages of the defendant’s
unallocated alimony and child support obligation, effec-
tive July 31, 2015. Finally, as noted earlier in this opin-
ion, there was evidence before the court at the May 7,
2015 hearing of the plaintiff’s continued financial sup-
port of the daughter, notwithstanding the change in
primary physical custody. Based on the record that
we have before us, we cannot conclude that the court
abused its discretion by not entering an order that the
plaintiff pay child support to the defendant for his care
of the daughter after July 31, 2015, until the end of the
2016 school year.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the defendant claims that the court improperly declined
to award him child support for the time period between June, 2014 and the
end of the 2016 school year. In part I of this opinion, however, we conclude
that the court did not abuse its discretion in modifying the defendant’s child
support obligation retroactive to December 9, 2014, rather than to June 30,
2014, or July 14, 2014. Accordingly, in part II of this opinion, we address only
whether the court erred in failing to award child support to the defendant for
the time period of July 31, 2015, until the end of the 2016 school year
pertaining to his care of the daughter.
2
In September, 2013, both parties consented to this informal modification
of the parenting plan, set forth in the separation agreement, where the
daughter would now reside full-time with the defendant. The court noted
that this arrangement was in the best interest of the daughter.
3
Although the remaining issues in the defendant’s motion for modification
were marked off after July 14, 2014, the relief requested therein pertaining
to child support remained undecided.
4
On appeal, neither party challenges the court’s decision to decline to
make a finding regarding what percentage of the January 27, 2011 unallocated
alimony and child support order should be calculated as child support.
5
We note that ‘‘§ 46b-86 requires that a party file a motion showing a
substantial change in circumstances in order to modify a final order of
support.’’ Kalinowski v. Kropelnicki, 92 Conn. App. 344, 350, 885 A.2d 194(2005). In this case, it is undisputed that there was a substantial change in
circumstances, namely, the change in the primary physical custody of the
daughter from the plaintiff’s residence to the defendant’s residence.
6
Specifically, the defendant contends that § 46b-224 protects against situa-
tions in which a parent may retain child support overpayments as tax
free alimony.
7
In his appellate brief, the defendant asserts that Gabriel v. Gabriel, 159
Conn. App. 805, 821, 123 A.3d 453 (2015), rev’d in part on other grounds by
Gabriel v. Gabriel, 324 Conn. 324, A.3d (2016), provides that the
only manner by which § 46b-224 can be given effect is through the issuance
of a full credit for overpayments occurring during the relevant period. We
disagree. Gabriel did not allude to this point, but instead addressed whether
the court improperly (1) ‘‘reduced the defendant’s alimony award and the
child support award in the combined total of the plaintiff’s unilateral reduc-
tion’’ and (2) found, in reliance on § 46b-224, that ‘‘it was not contemptuous
for the plaintiff to have suspended some portion of the defendant’s alimony
award.’’ Gabriel v. Gabriel, supra, 159 Conn. App. 821. In the defendant’s
appellate brief, however, he does not appear to assert that the court erred
by modifying the unallocated support award, but rather that the court
improperly modified the unallocated support award retroactively only from
December 9, 2014. Accordingly, we find Gabriel to be inapposite to the
present case. We further note that the defendant did not cite to Gabriel v.
Gabriel, 324 Conn. 324, A.3d (2016), in his appellate brief.
8
The February 25, 2015 hearing was a continuance of the hearing on
the defendant’s motion for modification that was originally scheduled for
January 9, 2015.
9
See footnote 1 of this opinion.
10
We believe that the court is referring to the parties’ January 27, 2011
separation agreement, which provided that the defendant’s unallocated ali-
mony and child support obligation was to be reduced on July 31, 2015.
11
The court entered three other orders that are not relevant to this appeal.