Fox v. Fox ( 2014 )

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DARBY FOX v. RODMAN FOX
(AC 33354)
DiPentima, C. J., and Alvord and Bear, Js.
Argued January 7—officially released September 9, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Dennis F. Harrigan, judge trial
referee [dissolution judgment]; Hon. Kevin Tierney,
judge trial referee [motion to modify].)
Charles D. Ray, with whom, on the brief, was Lee
Friend Lizotte, for the appellant (defendant).
Samuel V. Schoonmaker IV, with whom, on the brief,
was Wendy Dunne DiChristina, for the appellee
(plaintiff).
Opinion
BEAR, J. The defendant, Rodman Fox, appeals from
the judgment of the trial court rendered in favor of the
plaintiff, Darby Fox, on her postjudgment motion to
modify child support. The defendant claims that the
trial court erred by (1) basing its modified child support
calculations on his imputed income and not on the
minor children’s demonstrated needs, in violation of
Maturo v. Maturo, 296 Conn. 80, 995 A.2d 1 (2010), and
the child support guidelines, as set forth in § 46b-215a-1
et seq. of the Regulations of Connecticut State Agencies
(guidelines); (2) awarding attorney’s fees to the plain-
tiff; (3) imputing a rate of return on his investment
income that lacked evidentiary support; and (4) order-
ing him to make child support payments previously
made from the minor children’s custodial and trust
accounts, pursuant to the parties’ separation
agreement. We agree with each of the defendant’s
claims and thus reverse the judgment of the trial court.
We agree with the defendant as to his first claim
because the court began its calculation of his modified
child support obligation with his imputed income and
used his imputed income throughout its calculation.
Instead, pursuant to Maturo and the guidelines, the
court should have begun its calculation with the defen-
dant’s actual income and then determined whether the
resultant amounts were inappropriate or inequitable,
thus justifying a deviation from those amounts by per-
forming another calculation, this time using his imputed
income. We also agree with the defendant as to his
second claim because both parties have substantial liq-
uid assets, and the court made no finding that a failure
to award attorney’s fees to the plaintiff would have
undermined its other financial orders.
Even though our resolution of the defendant’s first
and second claims is dispositive of the present appeal,
for the reasons more fully stated, respectively, in parts
III A and B of this opinion, we nonetheless address
the defendant’s other claims because ‘‘these issues are
likely to arise again on remand and are adequately
briefed.’’ Kortner v. Martese, 312 Conn. 1, 5, 91 A.3d
412 (2014). We agree with the defendant as to his third
claim because the evidence did not support the rate of
return that the court imputed on his investment income.
Finally, we agree with the defendant as to his fourth
claim because the court’s termination of the separation
agreement provision allowing him to pay part of his
child support obligation with the minor children’s custo-
dial and trust accounts did not correspond to the sub-
stantial changes in circumstances it had found, all of
which pertained only to the parties’ respective assets
and incomes.
The following facts and procedural history are rele-
vant to our resolution of the present appeal. The parties
married on March 11, 1989. They have four children:
Alexandra, who reached the age of majority in 2008;
Jacqueline, who reached the age of majority in 2009;
Timothy, who reached the age of majority in 2011; and
John, who presently is seventeen years old. The court,
Hon. Dennis F. Harrigan, judge trial referee, dissolved
the parties’ marriage on November 30, 2005. The judg-
ment incorporated by reference the terms of a written
separation agreement that delineated, inter alia, the
parties’ alimony, child support, parenting, and property
division arrangements.
Three paragraphs of the separation agreement are at
issue in the present appeal. The first two paragraphs are
part of article III, entitled ‘‘Child Support.’’ Specifically,
article 3.1 provides: ‘‘Commencing December 1, 2005,
the [defendant] shall during his lifetime pay the [plain-
tiff] the sum of ONE THOUSAND TWO HUNDRED
FIFTY . . . DOLLARS per month per child for their
support. The [defendant]’s obligation with respect to
each child shall end when the child attains age eighteen
. . . or if a child is still attending high school when he
or she attains age eighteen . . . the [defendant]’s obli-
gation pursuant to this paragraph 3.1 shall continue
until a child completes his or her high school education
or attains age nineteen . . . whichever event shall
first occur.’’
Article 3.2 provides: ‘‘In addition to the foregoing
payments, the [defendant] shall cause the [plaintiff] to
receive from the children’s trusts and/or custodial
accounts established for their benefit, as set forth on
Schedule A hereto, the sum of FIFTEEN THOUSAND
. . . DOLLARS per year per child payable on January
1st each year, commencing January 1, 2006, as a contri-
bution to their support. The [plaintiff] shall take all steps
necessary to facilitate these payments as transfers. The
[defendant]’s obligation with respect to each child shall
end when the child attains age eighteen . . . or if a
child is still attending high school when he or she attains
age eighteen . . . the [defendant]’s obligation pursu-
ant to this paragraph 3.2 shall continue until a child
completes his or her high school education or attains
age nineteen . . . whichever event shall first occur.’’
Schedule A is titled ‘‘Assets Held by the Parties for the
Benefit of the Minor Children.’’ It contains the identi-
fying information for seven custodial and trust accounts
and specifies the amounts held in each of the accounts.
The third paragraph of the separation agreement at
issue is located in article V, entitled ‘‘Education.’’ Specif-
ically, article 5.1 provides: ‘‘The [plaintiff] shall pay the
first EIGHTY THOUSAND . . . DOLLARS per year of
the children’s grammar, middle and high school tuition,
tutoring, and fees while all four children are in grammar,
middle and high school (‘school’). If the tuition, tutoring
and fees exceed EIGHTY THOUSAND . . . DOLLARS
when four children are in school, SIXTY THOUSAND
. . . DOLLARS when three children are in school,
FORTY THOUSAND . . . DOLLARS when two chil-
dren are in school or TWENTY THOUSAND . . . DOL-
LARS when one child is in school the difference shall
be paid one-half . . . by the [defendant] and one-half
. . . by the custodial account or trust account for the
relevant child.’’
On December 23, 2009, the plaintiff filed a motion to
modify the defendant’s child support obligations and a
motion for order with respect to the defendant’s ali-
mony obligations. Only two of the parties’ four children,
Timothy1 and John, were minors when the plaintiff com-
menced the present proceedings.
The alleged ground for the plaintiff’s motion to mod-
ify child support was that there had been a substantial
change in circumstances because of (1) a decrease in
her income, (2) a decrease in the defendant’s alimony
payments to her, and (3) an increase in the defendant’s
assets. The relief requested by the plaintiff in the motion
to modify child support included attorney’s fees and an
increase in the amount of the defendant’s child support
payments. The alleged ground for the motion for order
with respect to alimony was that the defendant had
violated article 2.4 of the separation agreement, which
provided that ‘‘[t]he [defendant] shall take no action
which has as its purpose the defeating of the [plaintiff]’s
right to receive alimony,’’ because he had manipulated
his income so that it became significantly lower than
it had been in the past. The relief requested by the
plaintiff in the motion for order with respect to alimony
included attorney’s fees and factual findings that would
result in an arrearage and a higher income base for
calculating alimony payments.
The court, Hon. Kevin Tierney, judge trial referee,
heard both motions on September 9, September 10,
October 28, and October 29, 2010. The plaintiff filed
her proposed orders on September 9, 2010. In addition
to restating her previous requests for relief with greater
specificity, the plaintiff also proposed that the court
order, inter alia, that ‘‘[t]he defendant shall not pay
any of his child support obligations from the trusts
established for the children’s benefit.’’ The plaintiff sub-
sequently filed amended proposed orders on October
28, 2010. She amended the September 9, 2010 proposed
orders to state that ‘‘[t]he defendant shall not pay any
of his child support obligations from the accounts and/
or trusts established for the children’s benefit.’’2 She
also requested an increase in the defendant’s child sup-
port obligation to $6963.33 per month per minor child.
On March 29, 2011, the court issued two memoranda
of decision: one denying the motion for order with
respect to alimony and the other granting the motion
to modify child support. The ensuing court orders at
issue in the present appeal (1) terminated the previously
operative orders established by articles 3.1, 3.2, and 5.1
of the separation agreement; (2) set the defendant’s
child support obligation at $6963 per month per minor
child, to be paid for each child until each child reached
the age of majority; (3) set the parties’ obligations for
the minor children’s educational expenses at 83 percent
for the defendant and 17 percent for the plaintiff, to be
paid for each child until each child reached the age of
majority; and (4) required the defendant to pay $55,000
to the plaintiff as attorney’s fees for her prosecution of
the motion to modify child support.
The present appeal followed. The plaintiff has not
appealed from the court’s denial of her motion for order
with respect to alimony. Therefore, only the court’s
judgment rendered on the plaintiff’s motion to modify
child support is presently before us. Additional facts
and procedural history will be set forth as necessary.
I
LEGAL STANDARDS
A
Standard of Review for Modifications
of Child Support Obligations
‘‘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 rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Neverthe-
less, we may reverse a trial court’s ruling on a modifica-
tion motion if the trial court applied the wrong standard
of law. . . .3
‘‘[General Statutes §] 46b-864 governs the modifica-
tion or termination of an alimony or support order after
the date of a dissolution judgment. When, as in this
case, the disputed issue is alimony [or child support],
the applicable provision of the statute is § 46b-86 (a),
which provides that a final order for alimony [or child
support] 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. . . .
‘‘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. . . . More specifically, these
criteria, as outlined in General Statutes § [46b-84],5
require the court to consider the needs and financial
resources of each of the parties and their children
. . . . The power of the trial court to modify the
existing order does not, however, include the power to
retry issues already decided . . . or to allow the parties
to use a motion to modify as an appeal. . . . Rather,
the trial court’s discretion includes only the power to
adapt the order to some distinct and definite change
in the circumstances or conditions of the parties. . . .
‘‘Thus, [w]hen presented with a motion for modifica-
tion, a court must first determine whether there has
been a substantial change in the financial circumstances
of one or both of the parties. . . . Second, if the court
finds a substantial change in circumstances, it may
properly consider the motion and, on the basis of the
§ [46b-84] criteria, make an order for modification. . . .
The court has the authority to issue a modification only
if it conforms the order to the distinct and definite
changes in the circumstances of the parties.’’ (Citations
omitted; footnotes altered; internal quotation marks
omitted.) Olson v. Mohammadu, 310 Conn. 665, 671–74,
81 A.3d 215 (2013).
The court found ‘‘that the [plaintiff] ha[d] established
a substantial change in the circumstances of both par-
ties since the last order of child support on November
30, 2005. In 2007, the [defendant] was paid an incentive
bonus in excess of $40,000,000. That bonus increased
his assets and the potential for increased investment
income on those assets. The [plaintiff]’s alimony paid
pursuant to article 2.2 of the separation agreement
based upon the [defendant]’s ‘annual gross compensa-
tion from employment’ and its formula has decreased.
The [plaintiff]’s assets have decreased since November
30, 2005. Her November 30, 2005 financial affidavit . . .
indicated assets of $23,438,810.18, and her current
financial affidavit dated September 8, 2010 . . . indi-
cated assets of $15,407,123.42. This decrease in the
[plaintiff]’s assets of over $8 [million] is more than a
[25] . . . percent reduction in her assets since the last
child support order on November 30, 2005.’’ (Citations
omitted.) Neither party has appealed from nor chal-
lenged on appeal the court’s conclusions regarding the
substantial changes in the parties’ financial circum-
stances. Therefore, only the modification portion of the
court’s judgment presently is before us.6
B
Legal Standards for Modifications of Child Support
Obligations in High Asset, High Income
Familial Situations
Our Supreme Court in Dowling v. Szymczak, 309
Conn. 390, 400–402, 72 A.3d 1 (2013), provides clear,
definitive, and recent guidance for determining child
support obligations in high asset, high income familial
situations: ‘‘In a trilogy of recent cases, this court has
already discussed the guidelines and accompanying
schedule in detail. See Maturo v. Maturo, supra, 296
Conn. 80; Misthopoulos v. Misthopoulos, [297 Conn.
358, 999 A.2d 721 (2010)]; Tuckman v. Tuckman, 308
Conn. 194, 61 A.3d 449 (2013). Accordingly, we will not
till this legal landscape any more than is necessary for
the resolution of the present case. . . . [T]he schedule
[in the guidelines] sets forth a presumptive percentage
and resultant amount corresponding to specific levels
of combined net weekly income; the schedule begins
at $50 and continues in progressively higher $10 incre-
ments, terminating at $4000. . . . This court has recog-
nized that the guidelines nonetheless apply to combined
net weekly income in excess of that maximum amount.
. . . Indeed, the regulations direct that, [w]hen the par-
ents’ combined net weekly income exceeds $4,000, child
support awards shall be determined on a case-by-case
basis, and the current support prescribed at the $4,000
net weekly income shall be the minimum presumptive
amount. . . .
‘‘While the regulations clearly demarcate the pre-
sumptive minimum amount of the award in high income
cases, they do not address the maximum permissible
amount that may be assigned under a proper exercise
of the court’s discretion. . . . [T]his 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. . . . 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. . . .
‘‘Either the presumptive ceiling of income percentage
or presumptive floor of dollar amount on any given
child support obligation, however, may be rebutted by
application of the deviation criteria enumerated in the
guidelines and by the statutory factors set forth in § 46b-
84 (d). . . . In order to justify deviation from this
range, the court must first make a finding on the record
as to why the guidelines were inequitable or inappropri-
ate . . . . Thus, this court unambiguously has stated
that, when 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 crite-
ria enumerated in the guidelines, as well as the statutory
factors described in § 46b-84 (d). . . . In other words,
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 presump-
tive maximum percentage of net income—a finding in
support of a deviation is not necessary.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks
omitted.)
II
TRIAL COURT’S MEMORANDUM OF DECISION
We now address the court’s memorandum of decision
as to its calculation of the defendant’s modified child
support obligation. We do so to reflect that we review
the defendant’s claims in the order set forth by the
defendant. We address separately, however, in our anal-
ysis of the defendant’s second claim in part III B of this
opinion, the part of the court’s decision regarding the
award of attorney’s fees to the plaintiff. We do so
because this part of the court’s decision does not
involve the court’s calculation of the defendant’s modi-
fied child support obligation.
A
As to Defendant’s First and Third Claims, Regarding
Court’s Consideration of His Earning Capacity
The court calculated the defendant’s modified child
support obligation in the following fashion. It first con-
sidered the plaintiff’s income, which consisted solely of
her investment income from dividends, taxable interest,
and tax free interest and totaled $5390 per week in
gross income and $4823 per week in net income. The
court then considered the parties’ dispute regarding the
amount of the defendant’s income for the purpose of
calculating his modified child support obligation. The
defendant sought to have the court attribute $12,307
per week in gross income to him, a number that he
derived from the $400,000 in annual employment
income and $240,000 in annual investment income that
he listed on his guidelines worksheet. The plaintiff, on
the other hand, sought to have the court attribute
$32,636 per week in gross income to the defendant,
a number that she derived from the defendant’s past
employment income and his earning capacity with
respect to his investment income. In support of her
position, the plaintiff offered proof that the average of
the defendant’s annual employment income for the
years 2005, 2006, and 2007 was $1,327,771.
The defendant argued that the court should not con-
sider his earning capacity with respect to his employ-
ment income because of (1) his continued employment
as a high level executive in the reinsurance brokerage
industry at all relevant times and (2) the plaintiff’s
improper intent to obtain additional alimony in the guise
of child support. The court noted that ‘‘the defendant,
by agreeing to the separation agreement and being
ordered to pay child support and other child related
expenses, assumed an obligation to place the financial
interests of his children ahead of his personal financial
interests.’’ It also noted that the parties’ children had
not been represented by counsel during the dissolution
proceedings. The court then turned its attention to the
defendant’s financial affidavit and observed: ‘‘[The
defendant’s] net monthly income . . . is $31,322.95
. . . . His monthly expenses are $67,606.12 of which
$10,042 is alimony and $2500 is child support. His
monthly personal expenses are $55,064.12. . . . The
court concludes that the [defendant] pays these
monthly personal expenses from his assets. The [defen-
dant]’s standard of living . . . far exceeds his net
monthly income.’’ (Citation omitted.)
The court subsequently examined the history of the
defendant’s employment income: ‘‘As of November 30,
2005, the [defendant]’s W-2 wages and bonus income
was $984,240. For 2006, his W-2 earnings were $736,165.
For 2007, his W-2 earnings were $2,262,908. . . . In
2007 . . . he received an incentive bonus of
$40,382,386 [for the sale of a reinsurance business in
which he made significant contributions]. . . . This
gave the [defendant] the freedom to start a new business
venture in which his financial goals focused on capital
gains and increased earnings at some time in the future,
as opposed to current salary income. Thus, in 2008 his
W-2 salary was reduced to $182,961. . . . In 2009, his
W-2 salary was $216,904. . . . He was originally paid
in his current employment $200,000 per year salary, and
that has been increased to $400,000 per year.’’ (Cita-
tions omitted.)
The court concluded that ‘‘[i]t [was] reasonable . . .
to use the years 2005, 2006 and 2007 to establish earning
capacity since those were the years immediately follow-
ing the dissolution prior to the 2007 sale of the business.
The average of those three gross incomes for 2005, 2006
and 2007 is $1,327,771,’’ and the court used this average
as the defendant’s earning capacity from employment
income in calculating its modified child support orders.
The court then addressed the parties’ dispute regard-
ing the defendant’s investment income. The defendant
claimed annual investment income of $240,000, or a
0.007860970 percent rate of return, on investment assets
of $30,530,634. The plaintiff argued that the rate of
return on the defendant’s investment assets was too
low and that the court should impute a 2.72 percent
rate of return on them. The plaintiff’s proposed rate of
return was the ‘‘Treasury nominal constant maturities-
Nominal 10 Year’’ rate listed at the time in ‘‘Federal
Reserve Statistical Release H-15,’’ a regularly updated
compilation published by the Federal Reserve of histori-
cal rates of return for a variety of investment instru-
ments. The court determined that ‘‘taking judicial notice
of a Treasury instrument without more information is
of little assistance to a trial court in determining an
accurate imputed rate of return on investable assets,’’
and it turned its attention to the state of the financial
markets from 2005 to 2010. The court noted that the
defendant had changed his investment strategy in late
2007, to ‘‘conservative holdings with an emphasis on
cash-type investments’’ in order to ‘‘[preserve] his capi-
tal,’’ but it ultimately concluded that ‘‘at some point, a
prudent investor should have reinvested more actively
in the market since its low point in 2009.’’
On this basis, the court decided to disregard the
defendant’s actual rate of return and impute a rate of
return on the defendant’s investment income. It then
discussed the parties’ failure to offer documentary,
expert, and/or testimonial evidence ‘‘for the purpose of
determining a rate of return,’’ even though it had given
the parties the opportunity to do so during the hearing.
It found, however, ‘‘one rate of return that was provided
by the evidence’’—the rate of return that was based on
the plaintiff’s annual investment income of $280,271
from her investment assets of $12,549,102. The court
observed that the rate was absent from the plaintiff’s
financial affidavit and the oral argument and testimony
presented during the hearing. It nonetheless determined
that there was sufficient evidence to ascertain the rate,
which it calculated to be 2.23339 percent. The court
noted that ‘‘neither party questioned this rate during
the hearing’’ and that ‘‘[b]oth appeared to have accepted
it.’’ It therefore imputed a 2.23339 percent rate of return
on the defendant’s investment assets and found that
his earning capacity from his investment income was
$682,024 per year.
The court then turned its attention to several different
methodologies proposed by the plaintiff in order to
justify her request to increase the defendant’s child
support obligation from the November, 2005 agreed
upon amount of $1250 to $6963.33 per month per child.
The first methodology used the defendant’s actual
employment income, imputed investment income to
him on the basis of the 4.3 percent rate of return that
he achieved in 2008, and yielded the requested amount.
The second methodology used the defendant’s actual
employment income, imputed investment income to
him on the basis of the 2.72 percent ‘‘Treasury constant
maturities-Nominal 10 year’’ rate of return, and yielded
an amount less than the requested amount. The plaintiff
requested that the court apply the deviation criteria to
this lesser amount in order to justify an upward devia-
tion to her requested amount. Finally, the plaintiff’s
third proposed methodology imputed annual employ-
ment income to the defendant in the amount of
$1,327,723 and then presented two alternate calcula-
tions that were based on the two aforementioned
amounts of imputed investment income. The court
noted that both calculations yielded amounts signifi-
cantly greater than the amount requested by the
plaintiff.
The court subsequently commenced its calculation
of the defendant’s modified child support obligation. It
added the defendant’s imputed employment income and
investment income to arrive at a gross annual earning
capacity of $2,009,745. It then subtracted the defen-
dant’s claimed annual gross income of $639,964 from
his gross annual earning capacity to arrive at $1,369,781,
which it labeled ‘‘additional . . . earning capacity.’’
The court deducted federal and state taxes from the
additional earning capacity to arrive at an additional
net annual income of $832,485 or, stated differently, an
additional net weekly income of $16,009. The court
added the defendant’s claimed net weekly income of
$7754 and his additional net weekly income of $16,009
to arrive at a total net weekly income of $23,763.
The court added the defendant’s net weekly income
of $23,763 and the plaintiff’s net weekly income of $4823
to arrive at a combined net weekly income of $28,586—
83.13 percent was attributable to the defendant, and
16.87 percent was attributable to the plaintiff. The court
applied the percentages to $636, the presumptive
weekly child support obligation on the guidelines sched-
ule for families with combined net weekly incomes of or
greater than $4000, and determined that the defendant’s
share of the amount would be $529. The court per-
formed a similar calculation to the product of $28,586
and 15.89 percent, the percentage on the guidelines
schedule to be applied in situations involving two chil-
dren and a combined net weekly income of or greater
than $4000. The product of the two numbers was $4542,
and the court determined that the defendant’s share
would be $3776 per week for both children.
At this point, the court shifted its focus to determining
the needs of the minor children. It did so in exhaustive
fashion, considering the plaintiff’s financial affidavit
and her testimony to calculate amounts representing
expenses related to, inter alia, child care, education,
food, housing, medical care, recreation, travel, and the
minor children’s allowances and discretionary spend-
ing. The court excluded the education related expenses
from its calculation of both minor children’s overall
needs, which it ultimately determined to be $24,297
per month. The court compared its calculation to the
plaintiff’s requested amount of $6963 per month per
minor child and held: ‘‘This request is based on the
[plaintiff’s] own allocation of the costs to meet the
needs of the minor children. Since this is a more accu-
rate allocation than performed by this court, the court
finds that $6963 per month per child are the needs of
the minor children.’’ The court observed that $6963 per
month per minor child provided for $3214 per week for
both children, which was 11.24 percent, as opposed
to 15.89 percent, of the combined net weekly income
of $28,586.
The court concluded: ‘‘[T]he presumptive support
award under the guidelines is $636 per week, and that
sum is wholly inequitable, inadequate and inappropri-
ate. The court has delineated the needs of the children
above at $6963 per month per minor child, and those
needs meet the following deviation criteria: (1) Special
circumstances: ‘Best interests of the child’ . . . (2)
Special circumstances: ‘Other equitable factors’ . . .
and (3) ‘Extraordinary expenses for care and mainte-
nance of the child’ . . . .’’ (Citations omitted.)
The court clarified its holding in a January 18, 2012
articulation that it filed in response to an October 13,
2011 motion for articulation that the plaintiff filed with
this court. The court stated that it had ‘‘made only
one finding as to the needs of the two minor children,
$24,297 per month.’’ It then elaborated: ‘‘The court
acceded to the plaintiff’s $6963 monthly . . . child sup-
port request, and it deferred to her request. In doing,
so the court may have mistakenly used the word ‘finds’
. . . . Thus, the sentence shall read: ‘Since this is a
more accurate allocation than performed by this court,
the court finds that the $6963 per month per child are
the needs of the minor children based on the [plaintiff]’s
own allocation.’ ’’
B
As to Defendant’s Fourth Claim, Regarding
Court’s Treatment of Minor Children’s
Custodial and Trust Accounts
In the middle of its memorandum of decision, the
court shifted from the question of how it should calcu-
late the defendant’s modified child support obligation
to the question of ‘‘[h]ow . . . the court [should] treat
the minor children’s estate and income in determining
whether or not to modify child support . . . .’’ The
court noted: ‘‘This is not an academic question . . . .
According to the [defendant]’s financial affidavit, the
total assets in the children’s custodial accounts and
children’s trusts were just under $6,000,000, even after
the payment of college education costs and $15,000 per
child per year child support from these funds.’’ The
court then repeated that the guidelines are a mandatory
basis for all child support orders, per Maturo, and
observed that the guidelines do not include a child’s
estate and/or income among the recognized factors in
a court’s calculation of a presumptive child support
amount, even though § 46b-84 (d) lists it as a factor that
‘‘the court shall consider’’ when ‘‘determining whether a
child is in need of maintenance, and, if in need, the
respective abilities of the parents to provide such main-
tenance and the amount thereof . . . .’’ Instead, the
court determined that a child’s estate and/or income
may be a deviation criterion under § 46b-215a-3 (b) (6)
(D) of the Regulations of Connecticut State Agencies7
for a court to consider in awarding child support in an
amount different from the presumptive amount.
The court also enumerated twenty factors involving
the lack of relevant authority regarding the relationship
between a child support order and a child’s estate and/
or income; the lack of evidence before it regarding the
specifics of the children’s custodial and trust accounts;
and the children’s lack of representation during the
dissolution proceedings. It considered these factors
along with its interpretation of the relevant regulations
and statutes, and it concluded that it could not ‘‘con-
sider the ‘amount and sources of income’ of the minor
child and/or ‘the estate . . . of the child’ under [§] 46b-
84 (d) without (1) complying with the deviation criteria
procedures, (2) the court having detailed information
on the child’s income and assets, and (3) the minor
child or children being represented by an attorney and/
or . . . guardian ad litem.’’ The court accordingly
ruled: ‘‘For the reasons stated, the court is only going
to consider the income and imputed income of both
parents and not consider either the ‘amount and sources
of income’ or ‘estate’ of either of the two minor children,
either as a statutory factor, a guideline consideration,
or a deviation criterion.’’
III
DEFENDANT’S CLAIMS
A
Defendant’s First Claim: Whether Court Erred
in Using Defendant’s Earning Capacity
in Calculating His Modified
Child Support Obligation
The defendant claims that the court erred in
determining the defendant’s modified child support
obligation because it based its calculations on the defen-
dant’s imputed income and not on his actual income
and the minor children’s demonstrated needs,8 in viola-
tion of Maturo and the guidelines. We agree. The court’s
error in its approach to the defendant’s imputed income
is not merely a matter of form. We do not reverse the
judgment with respect to the court’s calculation of the
defendant’s modified child support obligation simply
because the court failed to cite the presumptive support
amount calculated with the defendant’s actual income
before it decided to deviate from the guidelines’ require-
ments and determine the defendant’s modified child
support obligation on the basis of his imputed income.
Instead, we reverse the judgment with respect to the
court’s calculation of the defendant’s modified child
support obligation because the court’s error in its
approach to the defendant’s imputed income is also a
matter of substance. A party’s earning capacity is a
deviation criterion under the guidelines, and, therefore,
a court must specifically invoke the criterion and specif-
ically explain its justification for calculating a party’s
child support obligation by virtue of the criterion
instead of by virtue of the procedures outlined in the
guidelines. The court in the present case did not invoke
the defendant’s earning capacity as a deviation criterion
in calculating the defendant’s modified child support
obligation, and it did not explain why an obligation
calculated in accordance with the defendant’s actual
income, pursuant to the guidelines, would be inequita-
ble or inappropriate, thus warranting an obligation cal-
culated in accordance with the defendant’s earning
capacity instead.
‘‘It is well established that the trial court may under
appropriate circumstances in a marital dissolution pro-
ceeding base financial awards . . . on the earning
capacity of the parties rather than on actual earned
income. . . . Earning capacity, in this context, is not
an amount which a person can theoretically earn, nor
is it confined to actual income, but rather it is an amount
which a person can realistically be expected to earn
considering such things as his vocational skills, employ-
ability, age and health.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Tanzman
v. Meurer, 309 Conn. 105, 113–14, 70 A.3d 13 (2013).
‘‘[W]hen a trial court has based a financial award . . .
on a party’s earning capacity, the court must determine
the specific dollar amount of the party’s earning capac-
ity.’’ Id., 117. ‘‘[A] court properly may impute earning
capacity from employment . . . [and] [w]e can per-
ceive no reason to adopt a different standard for the
ascertainment of investment income than the one we
employ for the ascertainment of earning capacity.’’
(Citation omitted.) Weinstein v. Weinstein, 280 Conn.
764, 772, 911 A.2d 1077 (2007).
Factors that a court may consider in calculating a
party’s earning capacity include ‘‘evidence of that par-
ty’s previous earnings’’; Boyne v. Boyne, 112 Conn. App.
279, 283, 962 A.2d 818 (2009); ‘‘[l]ifestyle and personal
expenses . . . where conventional methods for
determining income are inadequate’’; (internal quota-
tion marks omitted) Milazzo-Panico v. Panico, 103
Conn. App. 464, 468, 929 A.2d 351 (2007); and ‘‘whether
the defendant has wilfully restricted his earning capac-
ity to avoid support obligations,’’ although ‘‘we never
have required a finding of bad faith before imputing
income based on earning capacity.’’ (Internal quotation
marks omitted.) Weinstein v. Weinstein, supra, 280
Conn. 772.
‘‘Under the guidelines, the child support obligation
first is determined without reference to earning capac-
ity, and earning capacity becomes relevant only if a
deviation from the guidelines is sought under § 46b-
215a-3 (b) (1) (B) [of the Regulations of Connecticut
State Agencies]. Pursuant to § 46b-215a-3 (a), the
amount of support determined without reference to the
deviation criteria is presumed to be the correct amount
of support, and that presumption may only be rebutted
by a specific finding on the record that the application
of the guidelines would be inequitable or inappropriate
under the circumstances of a particular case. When the
latter is true, § 46b-215a-3 (b) (1) (B) allows deviation
from the guidelines on the basis of a parent’s earning
capacity.’’ Unkelbach v. McNary, 244 Conn. 350, 371,
710 A.2d 717 (1998); see also Reizfeld v. Reizfeld, 125
Conn. App. 782, 794–95, 40 A.3d 320 (‘‘the defendant’s
argument that the court improperly deviated from the
child support guidelines by using the plaintiff’s actual
gross income is misguided, as the deviation would
instead be in using the plaintiff’s earning capacity’’),
cert. denied, 300 Conn. 915, 13 A.3d 1103 (2011); A.
Rutkin et al., 8 Connecticut Practice Series: Family Law
and Practice (3d Ed. 2010) § 38:21, pp. 318–19.
Our examination of the guidelines confirms that earn-
ing capacity is a deviation criterion for a court to con-
sider after it has made its initial calculation of a child
support obligation with a party’s actual net income.
There is no express or implied reference to earning
capacity in § 46b-215a-2b of the Regulations of Connect-
icut State Agencies, which ‘‘shall be used to determine
the current support . . . components of all child sup-
port awards within the state, subject to [§] 46b-215a-3 of
the Regulations of Connecticut State Agencies.’’ Regs.,
Conn. State Agencies § 46b-215a-2b (a) (1). To the
extent that the regulation refers to any type of earned
income, it does so in the context of ‘‘gross income’’ and
‘‘net income.’’ Section 46b-215a-1 (11) and (17) of the
Regulations of Connecticut State Agencies, respec-
tively, define ‘‘gross income’’ in relevant part as ‘‘the
average weekly earned and unearned income from all
sources before deductions . . . .’’ and ‘‘net income’’ as
‘‘gross income minus allowable deductions.’’ Section
46b-215a-1 (11) (A) does not list earning capacity among
the ‘‘gross income inclusions’’ that a court or party
may make.
Section 46b-215a-3 (a) of the Regulations of Connecti-
cut State Agencies provides in relevant part that ‘‘[t]he
current support . . . amounts calculated under [§]
46b-215a-2b of the Regulations of Connecticut State
Agencies . . . are presumed to be the correct amounts
to be ordered. The presumption regarding each such
amount may be rebutted by a specific finding on the
record that such amount would be inequitable or inap-
propriate in a particular case. . . . Any such finding
shall state the amount that would have been required
under [the section] and include a factual finding to
justify the variance. Only the deviation criteria stated
in the lettered subparagraphs of subdivisions (1) to (6),
inclusive, of subsection (b) of this section, and indicated
by the check boxes in section VII of the worksheet,
shall establish sufficient bases for such findings.’’ Sec-
tion 46b-215a-3 (b) (1) (B) of the Regulations of Con-
necticut State Agencies expressly lists ‘‘the parent’s
earning capacity’’ among the ‘‘[c]riteria for deviation
from presumptive support amounts’’; Regs., Conn. State
Agencies § 46b-215a-3 (b); as a financial resource that
is ‘‘not included in the definition of net income, but
could be used by such parent for the benefit of the
child or for meeting the needs of the parent. . . .’’ Id.,
§ 46b-215a-3 (b) (1).
We also observe that there is no section on the work-
sheet for a party to list earning capacity. See Regs.,
Conn. State Agencies § 46b-215a-5b. A party may indi-
cate his or her intent to rely on earning capacity, how-
ever, by checking a box labeled ‘‘parent’s earning
capacity’’ in § VII of the worksheet, entitled ‘‘Deviation
Criteria.’’ Regs., Conn. State Agencies § 46b-215a-5b.
This section contains a checklist of the deviation crite-
ria contained in § 46b-215a-3 (b) of the Regulations of
Connecticut State Agencies, and it instructs a party
to ‘‘[c]heck all boxes that apply.’’ (Emphasis omitted.)
Regs., Conn. State Agencies § 46b-215a-5b. Section 46b-
215a-2b (c) (7) (A) of the Regulations of Connecticut
State Agencies provides: ‘‘If a deviation criterion
applies, complete section VII of the worksheet, check-
ing all the boxes that apply, and attach an additional
sheet if necessary to explain the deviation. . . .’’
At no point in its comprehensive memorandum of
decision did the court in the present case calculate the
defendant’s presumptive child support obligation on the
basis of his actual employment income and investment
income. The court noted the defendant’s actual income
but focused its analysis on its calculations and reasons
for imputing additional income. The combined net
weekly income found by the court reflects the court’s
decision to disregard the defendant’s actual income. In
determining the defendant’s net weekly income as a
component of the parties’ combined net weekly income,
the court based its calculations on only the defendant’s
imputed income. The plaintiff undertook a similar
approach in presenting to the court her various method-
ologies for arriving at a modified child support obliga-
tion of $6963 per month per minor child. She imputed
investment income to the defendant in all three method-
ologies instead of using his actual investment income
and its 0.007860970 rate of return. The court ‘‘acceded
. . . and . . . deferred to [the plaintiff’s] request[ed]’’
amount and, therefore, her methodologies in coming
to its conclusion, even though it had performed its
own calculations.
The absence of the defendant’s actual income from
the court’s calculation of the presumptive support
amount is not simply an omission of an amount on the
defendant’s worksheet that the court chose to disre-
gard. It also is contrary to the requirement that ‘‘a trial
court must make an on-the-record finding of the pre-
sumptive support amount’’ under the guidelines, which
do not provide for the incorporation of a party’s earning
capacity into the calculation of his or her presumptive
support amount. (Internal quotation marks omitted.)
Kavanah v. Kavanah, 142 Conn. App. 775, 780, 66 A.3d
922 (2013). The court’s erroneous calculation of the
presumptive support amount affected the rest of its
calculations regarding the defendant’s modified child
support obligation. For example, the court stated
toward the end of its memorandum of decision that its
order modifying the defendant’s child support obliga-
tion complied with the guidelines because the amount
of $6963 per month per child equaled 11.24 percent of
the parties’ combined net weekly income, less than the
15.89 percent listed in the guidelines for families with
two children and combined net weekly incomes of or
greater than $4000. The court could not have complied
with the guidelines here, however. In these division
calculations—where the child support amount was the
divisor, the parties’ net income was the dividend, and
the resulting percentage was the quotient—the divi-
dend, i.e., the parties’ combined net weekly income,
improperly incorporated the defendant’s imputed
income, in contravention of the guidelines. The court’s
erroneous reliance on the income it imputed to the
defendant in establishing the parties’ combined net
weekly income thus tainted the entirety of its modified
child support calculations. For this reason, our Supreme
Court’s determination in Dowling that ‘‘a finding in
support of a deviation is not necessary’’ when ‘‘the child
support award is derived from a total support obligation
within [the] range . . . between the presumptive mini-
mum dollar amount and the presumptive maximum per-
centage of net income’’ does not apply to the facts of
this case. Dowling v. Szymczak, supra, 309 Conn. 402.
Furthermore, the court did not list the defendant’s
earning capacity among the deviation criteria on which
it relied in holding that the defendant’s modified child
support obligation should be $6963 per month per minor
child. The court also did not state (1) the presumptive
support amount at which it arrived by applying the
guidelines and using the defendant’s actual income or
(2) a factual finding on which it relied in deviating from
the presumptive support amount. Likewise, the box
labeled ‘‘parent’s earning capacity’’ in the ‘‘Deviation
Criteria’’ section of the worksheet is unchecked on both
copies of the worksheet submitted by the parties during
the hearing. The court made no reference to this over-
sight in considering the defendant’s earning capacity
as an element of the defendant’s gross income and not
as a deviation criterion. Because the court did not treat
the defendant’s earning capacity as a deviation crite-
rion, it did not subject the plaintiff’s position that the
court should base the defendant’s modified child sup-
port obligation on his earning capacity instead of his
actual income to the rigorous requirement of a ‘‘specific
finding on the record that the presumptive support
amount would be inequitable or inappropriate.’’ (Inter-
nal quotation marks omitted.) Kavanah v. Kavanah,
supra, 142 Conn. App. 780. Such a finding ‘‘must include
a statement of the presumptive support amount and
[an explanation of] how application of the deviation
criteri[on] justifies the variance.’’ (Internal quotation
marks omitted.) Id. Even though the court spoke gener-
ally of certain factors on which it relied in deciding
to impute employment and investment income to the
defendant; see part II B of this opinion; it did not articu-
late why the defendant’s imputed income would be a
more appropriate or equitable basis for calculating the
defendant’s modified child support obligation than the
defendant’s actual income or the presumptive support
amount range; see Dowling v. Szymczak, supra, 309
Conn. 402; calculated in accordance with the defen-
dant’s actual income. The court’s rationale for using
the defendant’s imputed income instead of his actual
income in its calculations also lacks any reference to
the demonstrated needs of the minor children, which
further undermines any justification for the variance.
Affirming the judgment with respect to the child support
orders would amount to sanctioning the court’s
bypassing of and noncompliance with the guidelines’
clear and firm requirements regarding the use of devia-
tion criteria and presumptive support amounts. We
decline to do so, especially in light of the growing line
of cases in which our Supreme Court has stated
unequivocally that the guidelines and their underlying
principles limit the discretion accorded to trial courts
tasked with fashioning child support awards in high
income, high asset familial situations. See id., 400 (citing
and discussing cases). Although a trial court’s discre-
tion in a domestic relations matter may be broad, it is
not so expansive that it encompasses clear omissions
of required procedures for setting child support obliga-
tions in high income, high asset familial situations, espe-
cially in light of Maturo and its progeny. The court
misapplied the guidelines, and we accordingly reverse
its judgment as to all of its modified child support
orders.
We do so because ‘‘[w]e previously have character-
ized the financial orders in dissolution proceedings as
resembling a mosaic, in which all the various financial
components are carefully interwoven with one another.
. . . Accordingly, when an appellate court reverses a
trial court judgment based on an improper alimony,
property distribution, or child support award, the appel-
late court’s remand typically authorizes the trial court
to reconsider all of the financial orders. . . . We also
have stated, however, that [e]very improper order . . .
does not necessarily merit a reconsideration of all of
the trial court’s financial orders. A financial order is
severable when it is not in any way interdependent with
other orders and is not improperly based on a factor
that is linked to other factors. . . . In other words, an
order is severable if its impropriety does not place the
correctness of the other orders in question.’’ (Citations
omitted; internal quotation marks omitted.) Maturo v.
Maturo, supra, 296 Conn. 124–25.
Our Supreme Court concluded in Maturo that its
reversal of certain child support orders necessarily
affected the trial court’s other child support orders
because the former series of orders involved allocations
and calculations that influenced the latter series of
orders. Id. Similarly, we conclude in the present case
that we must reverse the judgment as to all of the
modified child support orders because the court erred
in determining both the defendant’s income and the
presumptive support amount under the guidelines, and
these numbers are central to all allocations and calcula-
tions underlying all of the modified child support
orders.
B
Defendant’s Second Claim: Whether Court Erred
in Awarding Attorney’s Fees to Plaintiff
We still must address, however, the defendant’s claim
that the court erred in awarding attorney’s fees to the
plaintiff for her prosecution of her motion to modify
child support because she has substantial liquid assets,
and the award was not necessary in order to avoid
undermining the court’s other related financial orders.
As the court observed, General Statutes § 46b-62, which
governs attorney’s fees awards for motions to modify
brought under § 46b-86, ‘‘does not require the movant
to be successful on the prosecution of the underlying
motion,’’ in contrast to General Statutes § 46b-87, which
governs attorney’s fees awards for motions for con-
tempt brought in domestic relations matters.9 Cf. Mis-
thopoulos v. Misthopoulos, supra, 297 Conn. 383–90
(affirming alimony and attorney’s fees awards in disso-
lution action but reversing all child support orders);
Berry v. Berry, 88 Conn. App. 674, 686–87, 870 A.2d 1161
(2005) (addressing and affirming trial court’s denial of
plaintiff’s motion for attorney’s fees after addressing
and affirming trial court’s denial of plaintiff’s motion for
upward modification of alimony).10 The order awarding
attorney’s fees to the plaintiff therefore is severable
from the orders modifying the defendant’s child support
obligations. We accordingly consider the defendant’s
claim and conclude that we agree with it.
‘‘We review a decision granting or denying attorney’s
fees for an abuse of discretion. . . . An abuse of discre-
tion . . . will be found only if [an appellate court]
determines that the trial court could not reasonably
have concluded as it did. . . . General Statutes § 46b-
6211 governs the award of attorney’s fees in child support
proceedings and provides that the court may order . . .
either parent to pay the reasonable attorney’s fees of
the other in accordance with their respective financial
abilities and the criteria set forth in section 46b-82.
These criteria include, inter alia, the parties’ occupa-
tions, earnings, vocational skills and employability.
General Statutes § 46b-82 (a).12 A court will award attor-
ney’s fees in order to prevent a party from being
deprived of his or her rights due to financial paucity.
. . . If both parties are able to afford their own attor-
ney’s fees, however, a court generally will not award
them unless failure to make an award would undermine
[the court’s] prior financial orders . . . .’’ (Citations
omitted; footnotes added; internal quotation marks
omitted.) Dowling v. Szymczak, supra, 309 Conn. 410.
The plaintiff requested attorney’s fees for her motion
for order regarding alimony and her motion to modify
child support. The court found that the total amount
of the attorney’s fees claimed for both motions was
$111,970.55 and that the plaintiff’s attorneys divided
the work represented by the amount almost equally
between the two motions. The court then determined
with respect to the claim for attorney’s fees and the
motion to modify child support that ‘‘ordering the [plain-
tiff] to pay attorney fees for an increased child support
undermines the child support orders’’ because ‘‘requir[-
ing] the [plaintiff] to pay a portion of the attorney fees
. . . out of the increased child support would be to
deprive the children of their just financial support.’’ The
court elaborated: ‘‘In effect, ordering [the plaintiff] to
pay attorney fees to collect increased child support
requires the child to pay for these attorney fees in the
form of reduced child support.’’
The court accordingly ordered: ‘‘The [plaintiff] should
pay for that portion of the incurred attorney fees related
to her prosecution of the alimony motion since these
increased alimony funds would have become her prop-
erty, and she has ample liquid assets with which to pay
those attorney’s fees. The [defendant] should pay that
portion of the . . . attorney fees and disbursements
that relate to the prosecution of the child support pro-
ceedings.’’ The court found the portion of the attorney’s
fees that related to the child support proceedings to
be $55,000.
In Bornemann v. Bornemann, 245 Conn. 508, 544–45,
752 A.2d 978 (1998), our Supreme Court affirmed an
award of attorney’s fees to the plaintiff wife in a dissolu-
tion action: ‘‘[H]ere the record would support a finding
by the trial court either that the plaintiff lacked suffi-
cient liquid assets with which to pay her own attorney’s
fees, or that the failure to award attorney’s fees would
have undermined its other financial orders. In addition
to owing $27,000 to her own attorneys, the plaintiff was
ordered to pay one half of the attorney’s fees for the
parties’ minor child, and one half of the fees for two
expert witnesses. Of the significant assets that the plain-
tiff received in the distribution, only the shares of stock
would have been easily convertible to liquid form; the
family residence and automobile were not liquid assets,
the first three flights of stock options had not yet been
exercised, and the fourth flight was not yet exercisable
as of the date of dissolution. Further, the shares of
stock owned outright that were awarded to the plaintiff
were not worth an amount sufficient to cover all of the
fees owed. As a result, the court reasonably could have
concluded that unless it awarded attorney’s fees to the
plaintiff, its other financial orders would be under-
mined, or that the plaintiff lacked the liquidity necessary
to enable her to pay her own fees.’’
The court distinguished its holding in Bornemann
from its holding in Maguire v. Maguire, 222 Conn. 32,
608 A.2d 79 (1992), where it reversed the trial court’s
award of attorney’s fees ‘‘because both parties pos-
sessed substantial liquid assets and were financially
able to pay their own attorney’s fees and the court had
not made a finding that the award was necessary in
order to avoid undermining its other financial awards.
. . . An award of $50,000 in attorney’s fees had been
issued to the plaintiff wife, who possessed more than
$500,000 in liquid assets even before the financial award
associated with the dissolution was made, and the finan-
cial orders divided the marital estate, which was valued
in excess of $7,000,000, equally between the parties. In
overturning the award, this court stated that ‘there is
nothing in the record that would support . . . a finding’
that the failure to award attorney’s fees would under-
mine the court’s other financial orders.’’ (Citation omit-
ted.) Bornemann v. Bornemann, supra, 245 Conn. 544;
see also Dowling v. Szymczak, supra, 309 Conn. 411–12
(affirming denial of plaintiff mother’s request for attor-
ney’s fees in child support action where trial court found
that plaintiff had high earning capacity and had received
monetarily significant gifts from her parents).
There similarly is nothing in the record before us to
support a finding that the failure to award attorney’s
fees would undermine the court’s child support orders.
In exercising its discretion to award attorney’s fees to
the plaintiff, the court focused on how the parties’ minor
children are the intended beneficiaries of the child sup-
port orders and posited that the plaintiff therefore acted
on their behalf by seeking to modify the orders. The
court then concluded that requiring the plaintiff to pay
the attorney’s fees related to her motion to modify
would be akin to requiring the parties’ minor children
to pay them because they consequently would not
receive the full modified amount of child support
ordered by the court. The court made no factual find-
ings, however, to establish any link between the attor-
ney’s fees related to the motion to modify child support
and the amount of child support available for the benefit
of the parties’ minor children.
In contrast, the court made many factual findings
about the plaintiff’s substantial liquid assets and,
accordingly, her ability to pay her own attorney’s fees.
We already have noted the court’s findings that the
plaintiff’s September 8, 2010 financial affidavit indi-
cated assets in the amount of $15,407,123.4213 and gross
monthly investment income from dividends, taxable
interest, and tax free interest in the amount of $23,356.
Even though the court addressed the plaintiff’s ‘‘ample
liquid assets’’ in denying her request for attorney’s fees
with respect to her motion for order with respect to
alimony, it appears to have ignored them in granting her
request for attorney’s fees with respect to her motion to
modify child support.
We again acknowledge that although a trial court
generally has broad discretion to award attorney’s fees
in domestic relations matters, such discretion has lim-
its. The court could not have reasonably concluded as
it did, given the plaintiff’s undisputed substantial liquid
assets compared to the amount of the fees, and the
lack of any factual findings that the failure to award
attorney’s fees would undermine the court’s other finan-
cial orders. We thus reverse the judgment as to the
award of attorney’s fees.
C
Defendant’s Third Claim: Whether Court Erred
in Imputing a Rate of Return on Defendant’s
Investment Income
The defendant’s claim regarding the court’s imputa-
tion of investment income to him for the purpose of
calculating his modified child support obligation con-
sists of two parts. First, the court erred because it
imputed an ‘‘ordinary’’ rate of return on the defendant’s
investment income instead of using his actual rate of
return, which he proved to be reasonable under the
circumstances. Second, even if the court did not err in
applying an imputed rate of return on the defendant’s
investment income, it erred in selecting an imputed rate
of return that lacked evidentiary support. We agree with
the second part of the defendant’s claim and therefore
need not address the first part.
Our resolution of this claim is governed by Weinstein
v. Weinstein, supra, 280 Conn. 775–76. In Weinstein,
our Supreme Court first held that the trial court did
not err in imputing an ordinary rate of return on the
defendant’s investment income, which had a 1.24 per-
cent actual rate of return, because the defendant had
not met his burden of ‘‘show[ing] that the low rate of
return on his investments [was] reasonable . . . .’’ Id.,
773. The court in Weinstein then turned its attention
to the question of whether the trial court had imputed
a proper ordinary rate of return.
It determined: ‘‘At the April 21, 2003 hearing, the
plaintiff put forth evidence establishing the 2.96 percent
return on five year treasury bills as of that date. The
defendant did not present evidence of an alternative
ordinary rate of return or of an alternative type of secure
investment. Nor did the defendant dispute that the 2.96
percent return on five year treasury bills was the prevail-
ing rate of return for a secure investment. Although the
defendant claims on appeal that the trial court improp-
erly imputed an ordinary rate of return on his invest-
ments, he makes no claim that, if we affirm that ruling,
we should apply a different prevailing rate. Accordingly,
we conclude that the trial court did not abuse its discre-
tion in imputing income in the amount of the . . . dif-
ference between the income calculated using an
ordinary rate of return, the 2.96 percent return on five
year treasury bills in this case, and the defendant’s
actual income.’’ (Footnotes omitted.) Id., 775–76. The
court in Weinstein further remarked in a footnote: ‘‘We
express no opinion as to whether the return on five
year treasury bills is the proper rate to use as the ordi-
nary rate of return in all future cases. We conclude only
that the trial court’s use of that rate of return was not
in dispute in this case.’’ Id., 776 n.11.
Neither party in the present case disputed the court’s
ability to take judicial notice of the various historical
rates of return listed on the then operative version of
‘‘Federal Reserve Statistical Release H-15.’’ See part II
A of this opinion. Instead of imputing one of these
rates of return to the defendant’s investment income,14
however, the court selected a rate of return (2.23 per-
cent) that was the quotient of the plaintiff’s annual
investment income ($280,271) divided by the value of
her investable assets ($12,549,102). The basis for the
court’s selection was that ‘‘[n]either party offered
expert evidence on the rates of return of [the defen-
dant’s] investable assets,’’ even though ‘‘it was incum-
bent upon [them] to offer [such] testimony,’’ and the
2.23 percent rate of return was ‘‘one rate of return
that was provided by the evidence . . . .’’ The court
acknowledged: ‘‘Although the rate of return was not
calculated on [the plaintiff’s] September 8, 2010 finan-
cial affidavit and was not mentioned in testimony or in
oral argument, such evidence was before the court.’’
The court’s position that the evidence provided for the
2.23 percent rate of return is belied by the fact that
it obtained this rate of return by performing its own
mathematical calculations as opposed to citing to any
particular piece of evidence that contained such calcu-
lations.
Furthermore, the record is silent with respect to the
exact nature of the plaintiff’s investable assets, which
complicates our inquiry of whether the court could
characterize a rate of return that was based on the
income earned by these assets as ‘‘ ‘the prevailing rate
of return for secure investments’,’’ per the definition
of ‘‘ ‘ordinary rate of return’ ’’ found in Weinstein v.
Weinstein, supra, 280 Conn. 770. Neither this court nor
our Supreme Court thus far has established a procedure
for a trial court to follow in selecting an ordinary rate of
return to impute to a child support obligor’s investment
income. A trial court tasked with selecting a rate of
return for imputed investment income purposes must
nonetheless be mindful of (1) the limits on its broad
discretion in domestic relations matters and (2) the
benchmark function of an imputed ‘‘ordinary rate of
return,’’ per the definition of that term in Weinstein.
For the foregoing reasons, we agree with the defendant
that the court abused its discretion by imputing a rate
of return on his investment income that lacked eviden-
tiary support.
D
Defendant’s Fourth Claim: Whether Court Erred
in Not Allowing Defendant to Pay Part of His
Support Obligation from Children’s
Custodial and Trust Accounts
We now address the defendant’s claim that the court
erred by terminating articles 3.2 and 5.1 of the separa-
tion agreement. Again, article 3.2 provided that the
defendant could use $15,000 per year per minor child
from the minor children’s custodial and trust accounts
to pay part of his child support obligation, while article
5.1 provided that educational expenses in excess of
$40,000 per year for two minor children were to be paid
equally by the defendant and the custodial and trust
accounts. The defendant specifically argues that none
of the changes in circumstances found by the court
affected the state or use of the custodial and trust
accounts, and, therefore, the court abused its discretion
by modifying his obligation to pay child support and
educational expenses so that he could no longer pay
part of his obligation from the accounts, even though
the separation agreement expressly provided that he
could do so. We agree with the defendant.
As previously noted in part I A of this opinion: ‘‘The
power of the trial court to modify the existing order
does not . . . include the power to retry issues already
decided . . . or to allow the parties to use a motion
to modify as an appeal. . . . Rather, the trial court’s
discretion includes only the power to adapt the order
to some distinct and definite change in the circum-
stances or conditions of the parties.’’ (Internal quotation
marks omitted.) Olson v. Mohammadu, supra, 310
Conn. 673. We also reiterate that the undisputed
changes in circumstances found by the court were (1)
the increase in the defendant’s assets and potential
investment income due to the bonus in excess of
$40,000,000 that he received in 2007; (2) the decrease
in the plaintiff’s assets from $23,438,810.18 to
$15,407,123.42; and (3) the decrease in the amount of
alimony received by the plaintiff due to the decrease
in the defendant’s ‘‘annual gross compensation from
employment,’’ which was the basis for the defendant’s
alimony obligation under the separation agreement.
The court did not address any of these changes in
circumstances, however, when it modified the defen-
dant’s support obligation by terminating articles 3.2 and
5.1. It instead based its decision on the minor children’s
lack of representation during the dissolution proceed-
ings, the lack of evidence before it regarding the specif-
ics of the accounts, and its interpretation of the
applicable regulations and statutes. None of these crite-
ria bore on the amounts contained in the accounts, the
manner in which the parties used the accounts pursuant
to the separation agreement, or any circumstances that
had changed since the dissolution judgment such that
it would have been unjust or inequitable to hold the
parties to articles 3.2 and 5.1. The court’s only finding
with respect to the accounts was that they held approxi-
mately $6,000,000 in September, 2010, despite the state
of the economy between 2005 and 2010 and the parties’
use of the accounts pursuant to the separation
agreement.
Given these factors, we cannot conclude that the
court properly exercised its discretion to terminate the
support payments pursuant to articles 3.2 and 5.1 in
the absence of any change in circumstances relating to
the source of those payments. We accordingly deter-
mine that the court abused its discretion. Because we
resolve the defendant’s claim on the basis of our well
established standards for modifications of child support
obligations, we need not address the issue of first
impression posed by the court of ‘‘[h]ow . . . the court
[should] treat the minor children’s estate and income
in determining whether or not to modify child support,
and, if so, what . . . the modified child support
[should be].’’
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
Even though Timothy became eighteen years old in January, 2011, the
defendant’s child support payments for him were still at issue when the
court rendered its decision on March 29, 2011, because the court made its
orders retroactive to January 16, 2010, a determination that neither party
has challenged on appeal.
2
The court and the defendant have different recollections of when the
plaintiff first raised the issue of how the children’s custodial and trust
accounts should factor into any modification of the defendant’s child support
obligation. The court stated in its memorandum of decision: ‘‘On the last
day of the hearings, after all the evidence was submitted and halfway through
oral argument, counsel raised the issue: How should the court treat the
minor children’s estate and income in determining whether or not to modify
child support, and, if so, what should be the modified child support?’’ The
defendant stated during oral argument before this court that the issue ‘‘came
up on October 28, [2010] when [the plaintiff] first filed her proposed orders.’’
The plaintiff did not assert any valid legal ground for her request that the
court eviscerate article 3.2.
3
The defendant argues that we should apply a plenary standard of review
because our Supreme Court held in Maturo v. Maturo, supra, 296 Conn.
88, that ‘‘[t]he question of whether, and to what extent, the child support
guidelines apply . . . is a question of law over which this court should
exercise plenary review.’’ The defendant’s claims, however, challenge the
manner in which the court applied the guidelines, not the applicability of
the guidelines or the extent thereof. The parties do not dispute that the
guidelines governed the court’s decision on the plaintiff’s motion to modify
child support. Accordingly, we apply an abuse of discretion standard of
review.
4
‘‘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
. . . .’ ’’ Olson v. Mohammadu, 310 Conn. 665, 671–72 n.3, 81 A.3d 215 (2013).
‘‘As for child support orders, [§] 46b-86 (a) permits the court to modify
child support orders in two alternative circumstances. Pursuant to this
statute, a court may not modify a child support order unless there is first
either (1) a showing of a substantial change in the circumstances of either
party or (2) a showing that the final order for child support substantially
deviates from the child support guidelines . . . . Both the substantial
change of circumstances and the substantial deviation from child support
guidelines’ provision establish the authority of the trial court to modify
existing child support orders to respond to changed economic conditions.
The first allows the court to modify a support order when the financial
circumstances of the individual parties have changed, regardless of their
prior contemplation of such changes.’’ (Internal quotation marks omitted.)
Id., 672.
5
General Statutes § 46b-84 (d) provides: ‘‘In determining whether a child
is in need of maintenance and, if in need, the respective abilities of the
parents to provide such maintenance and the amount thereof, the court
shall consider the age, health, station, occupation, earning capacity, amount
and sources of income, estate, vocational skills and employability of each
of the parents, and the age, health, station, occupation, educational status
and expectation, amount and sources of income, vocational skills, employ-
ability, estate and needs of the child.’’
6
Even though the substantial change in circumstances portion of the
court’s judgment is not before us, we set forth the entirety of the standard
of review for modifications of child support obligations in Olson because
the substantial changes in circumstances found by the court necessarily
impacted its subsequent modification of the defendant’s child support obliga-
tions. This is because, pursuant to the aforementioned standard of review,
a court’s modification of a party’s child support obligation must correspond
to the substantial change in circumstances that it has found. This principle
especially bears on our analysis in part III D of this opinion, in which we
hold that the court erred because it modified a component of the defendant’s
child support obligation without first finding that there had been a substantial
change in circumstances with respect to that component.
7
Section 46b-215a-3 (b) (6) of the Regulations of Connecticut State Agen-
cies provides in relevant part: ‘‘In some cases, there may be special circum-
stances not otherwise addressed in this section in which deviation from
presumptive support amounts may be warranted for reasons of equity. Such
circumstances are limited to the following . . . (D) Other equitable factors.’’
8
Given our resolution of this claim, we need not address the defendant’s
subsidiary argument that the court erred in calculating the minor children’s
demonstrated housing needs because (1) it relied on amounts provided by
the plaintiff that represented both her housing needs and the minor children’s
housing needs, and (2) the court’s attempt to allocate the amounts between
the plaintiff and the minor children did not account for the parties’ intentions
regarding or the plaintiff’s own substantial pecuniary interest in the family
home. We nonetheless address the argument for the reasons stated in the
first paragraph of part III C of this opinion. We are not persuaded by the
defendant’s argument. The defendant provides no authority for any of his
propositions regarding how the court should have calculated the minor
children’s housing needs. Furthermore, in reviewing a court’s factual findings
in a domestic matter, ‘‘[w]e do not examine the record to determine whether
the trier of fact could have reached a conclusion other than the one reached.
. . . [W]e [instead] focus on the conclusion of the trial court, as well as
the method by which it arrived at that conclusion, to determine whether it is
legally correct and factually supported.’’ (Internal quotation marks omitted.)
Muller v. Muller, 43 Conn. App. 327, 338, 682 A.2d 1089 (1996). Given the
court’s use of the concepts of proportionality and simple division in the
absence of ‘‘any legal authority . . . for allocating shelter expenses . . .
between a parent, adult children and minor children,’’ and the defendant’s
lack of objection to the comprehensive factual predicate for the calculation,
we are unable to conclude that the calculation is legally incorrect or factu-
ally unsupported.
9
General Statutes § 46b-87 provides in relevant part: ‘‘When any person
is found in contempt of an order of the Superior Court entered under section
46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court
may award to the petitioner a reasonable attorney’s fee and the fees of the
officer serving the contempt citation, such sums to be paid by the person
found in contempt, provided if any such person is found not to be in contempt
of such order, the court may award a reasonable attorney’s fee to such
person. . . .’’
10
Contra O’Brien v. O’Brien, 138 Conn. App. 544, 555, 53 A.3d 1039 (2012)
(observing that ‘‘the ordering of attorney’s fees is itself dependent upon the
relative financial circumstances of the parties, as affected by the court’s
final financial orders,’’ and holding that ‘‘the attorney’s fees award here at
issue must also be reconsidered in light of the new mosaic of financial
orders that the court will issue on remand in this case’’), cert. denied, 308
Conn. 937, 66 A.3d 500 (2013). The present case is distinguishable from
O’Brien because we conclude for the reasons stated in this part III B of
the opinion that any modification of the defendant’s child support obligation
would not impact the parties’ financial circumstances in terms of their ability
to pay their respective attorney’s fees.
11
General Statutes § 46b-62 provides in relevant part: ‘‘In any proceeding
seeking relief under the provisions of this chapter and sections 17b-743,
17b-744, 45a-257, 46b-1, 46b-6, 46b-212 to 46b-213w, inclusive, 47-14g, 51-
348a and 52-362, the court may order either spouse or, if such proceeding
concerns the custody, care, education, visitation or support of a minor child,
either parent to pay the reasonable attorney’s fees of the other in accordance
with their respective financial abilities and the criteria set forth in section
46b-82. . . .’’
12
General Statutes § 46b-82 (a) provides in relevant part: ‘‘In determining
whether alimony shall be awarded, and the duration and amount of the
award, the court shall hear the witnesses, if any, of each party, except as
provided in subsection (a) of section 46b-51, 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, vocational skills, employability, [and] estate and needs of each
of the parties . . . .’’
13
The value of the plaintiff’s assets is derived largely from holdings in
various securities and brokerage accounts, which the plaintiff listed in her
September 8, 2010 financial affidavit as totaling $12,549,102.93.
14
Like the court in Weinstein, we express no opinion as to whether any
of the rates of return found in ‘‘Federal Reserve Statistical Release H-15’’
is a proper ordinary rate of return to impute to a party’s investment income
for the purpose of calculating that party’s child support obligations.