Battistotti v. Suzanne A. ( 2018 )

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MARCO BATTISTOTTI v. SUZANNE A.*
(AC 39643)
DiPentima, C. J., and Alvord and Dewey, Js.
Syllabus
The plaintiff father appealed to this court from the judgment of the trial
court awarding the defendant mother sole legal and primary physical
custody of the parties’ minor child. The plaintiff, who resided in New
York City and rented an apartment in the Greenwich solely for parenting
time with his son, had brought this child custody action seeking, inter
alia, joint legal custody and visitation on a schedule to be determined.
After a trial, the court awarded, inter alia, the plaintiff a minimum
of seventeen hours of parenting time biweekly and ordered that such
parenting time occur within the town of Greenwich. On appeal, the
plaintiff claimed, inter alia, that the trial court erred in failing to consider
how its orders impacted his expenses, particularly the rental of the
Greenwich apartment, and abused its discretion in requiring that the
plaintiff’s parenting time take place only within the town of Green-
wich. Held:
1. The trial court abused its discretion in failing to analyze whether the
plaintiff’s visitation expenses warranted a deviation from the child sup-
port guidelines; that court did not address in its decision the plaintiff’s
request that his child support obligation reflect the undisputed expenses
related to the Greenwich apartment even though it had expressly found
that the plaintiff rented and renovated the apartment to be able to spend
time with his child, and the court, having made that finding, should have
analyzed whether the application of the guidelines would have been
inequitable or inappropriate and should have determined, pursuant to
the relevant state regulation [§ 46b-215a-5c], whether the criterion for
deviation on the basis of significant visitation expenses was met, espe-
cially given that both parties recognized that the Greenwich apartment
was maintained for the child and was referenced in their proposed
orders, and the plaintiff consistently identified the costs associated with
maintaining the Greenwich apartment as expenses related to the child,
which were not challenged by the defendant.
2. The plaintiff failed to demonstrate that the trial court abused its discretion
by restricting his parenting time with his child to the town of Greenwich;
the plaintiff’s reliance on the court’s finding that both parents demon-
strated a respect for court orders and had the ability to be actively
involved in the life of the child was unavailing, as the court also made
findings expressing concern about the plaintiff’s lack of understanding
of his child’s needs and the factors hindering the plaintiff’s establishment
of a healthy relationship with his child, and the plaintiff did not address
those findings.
Argued February 8—officially released May 15, 2018
Procedural History
Action for custody of the parties’ minor child, brought
to the Superior Court in the judicial district of Stamford-
Norwalk; subsequently the matter was transferred to
the judicial district of New Haven and tried to the court,
Tindill, J.; judgment awarding sole legal and primary
physical custody to the defendant, and ordering, inter
alia, visitation to the plaintiff from which the plaintiff
appealed to this court. Reversed in part; further pro-
ceedings.
John R. Williams, for the appellant (plaintiff).
David M. Moore, for the appellee (defendant).
Opinion
ALVORD, J. In this protracted and bitterly contested
family matter, the plaintiff father, Marco Battistotti,
appeals from the judgment rendered by the court fol-
lowing a ten day trial on his custody action filed against
the defendant mother, Suzanne A. On appeal, the plain-
tiff claims that the court: (1) improperly found that his
earning capacity was $174,000 per year, (2) erred in
failing to consider how its orders impacted his
expenses, particularly the rental of an apartment in
Greenwich used solely for parenting time, and (3)
abused its discretion in requiring that the plaintiff’s
parenting time take place only within the town of Green-
wich. We agree with the plaintiff’s second claim and
conclude that the trial court abused its discretion.
Accordingly, we reverse the judgment with respect to
the child support orders and remand the matter for
further proceedings on the issue of calculation of child
support.1 We affirm the judgment in all other respects.
The following facts and procedural history are neces-
sary for the resolution of the plaintiff’s appeal. The
plaintiff and the defendant, who were never married,
became parents to a son in June, 2014. On June 13,
2014, the plaintiff, a resident of New York City, filed a
child custody action in the judicial district of Stamford2
seeking joint legal custody of the parties’ child. He
requested that the primary residence of the child be
with the defendant and sought visitation on a schedule
to be determined. He further sought a parenting respon-
sibility plan for the parental decision-making regarding
the child. The court, Tindill, J., conducted a trial over
the course of ten days. Both parties testified, as did the
child’s guardian ad litem.
The court issued a written memorandum of decision
on September 7, 2016. The plaintiff filed a motion for
articulation, and the court issued an articulation on
October 6, 2016. On November 18, 2016, the court issued
a corrected memorandum of decision, in which it made
a number of findings with respect to the parties and
their respective abilities to meet the needs of the child.
The court found that the defendant had rebutted the
presumption of joint legal custody and awarded sole
legal custody, primary physical custody, and final deci-
sion-making authority to the defendant. The court
awarded the plaintiff a minimum of seventeen hours of
parenting time biweekly, and ordered that such parent-
ing time occur within the town of Greenwich. The court
prohibited the plaintiff from removing the child from
Greenwich or the state of Connecticut. The court
ordered the defendant or her designee to transport the
child to and from the apartment the plaintiff had rented
in Greenwich solely for effectuating his parenting time.
The plaintiff was prohibited from driving the child any-
where without obtaining a valid driver’s license, and
was ordered to provide the defendant twenty-four hours
advance notice of any intention to transport the child
in any moving vehicle, with the notice to include confir-
mation that the vehicle is properly licensed, registered,
and insured. The court found that the plaintiff had a
minimum net annual earning capacity of $174,356. Ref-
erencing the Connecticut Child Support Guidelines, the
court ordered the plaintiff to pay $253 per week in child
support beginning September 12, 2016.3 This appeal fol-
lowed. Additional facts will be set forth as necessary.
As a preliminary matter, we note the well settled
standard of review applicable in domestic relations
cases. ‘‘[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. . . .
[T]he foundation for this standard is that the trial court
is in a clearly advantageous position to assess the per-
sonal factors significant to a domestic relations case.
. . . In determining whether a trial court has abused
its broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action.’’ (Citations omitted; internal
quotation marks omitted.) Dowling v. Szymczak, 309
Conn. 390, 399, 72 A.3d 1 (2013). With respect to child
support, however, ‘‘the parameters of the court’s discre-
tion have been somewhat limited by the factors set
forth in the child support guidelines.’’ (Internal quota-
tion marks omitted.) Colbert v. Carr, 140 Conn. App.
229, 240, 57 A.3d 878, cert. denied, 308 Conn. 926, 64
A.3d 333 (2013).
I
We first address the plaintiff’s claim that the court
erred in failing to consider how its orders impacted his
expenses, particularly the expense associated with the
rental of an apartment in Greenwich used solely for
effectuating parenting time with his son. He claims that
although the court found that he lived in New York
City, the court required that his parenting time take
place in the apartment he rented in Greenwich ‘‘for the
sole purpose of visiting his son’’ and prohibited him
from taking the child out of Greenwich, which order
effectively required him to ‘‘maintain two separate resi-
dences.’’ He argues that the order to pay $253 weekly
in child support coupled with the requirement of main-
taining two residences ‘‘imposed an unsustainable
financial burden,’’ and he seeks to have the orders inte-
grated.4 We agree that the court abused its discretion
in failing to analyze whether the plaintiff’s visitation
expenses warranted a deviation from the child sup-
port guidelines.
The following additional facts are necessary for our
resolution of this claim. In its memorandum of decision,
the court found that it was in the child’s best interest
to live with his mother and to spend ‘‘significant, quality
time with his father.’’ The court noted that the defendant
‘‘proposes certain restrictions regarding transportation
and location of the plaintiff’s parenting time that she
believes are essential to address the child’s safety.’’ The
court found that the plaintiff rented and renovated a
Greenwich apartment near the residence shared by the
defendant and child, to be able to spend time with the
child. With respect to child support, the court ordered
that, ‘‘[i]n accordance with the Connecticut Child Sup-
port Guidelines (Court Exhibit A, attached), the plaintiff
father is ordered to pay $253.00/week as child support
to the defendant mother beginning September 12, 2016.’’
Exhibit A consisted of the Child Support Guidelines,
prepared by ‘‘Connecticut Judicial Service Center’’ and
dated September 7, 2016, the date of the memorandum
of decision. Figures for gross weekly income, federal
income tax, social security tax, medicare tax, and state
and local income tax were listed for both parties. Net
weekly income was also included for both parties in
the amounts of $3,028 with respect to the defendant
and $3,353 with respect to the plaintiff. A presumptive
support amount of $253 was entered for the plaintiff.
Section VII of the worksheet, Deviation Criteria, was
not utilized.
‘‘[W]e first set forth the relevant legal principles appli-
cable to our resolution of this claim. The legislature
has enacted several statutes to assist courts in fashion-
ing child support orders. . . . The legislature also has
provided [in General Statutes § 46b-215a] for a commis-
sion to oversee the establishment of child support
guidelines, which must be updated every four years, to
ensure the appropriateness of child support awards
. . . .’’ (Internal quotation marks omitted.) Righi v.
Righi, 172 Conn. App. 427, 435, 160 A.3d 1094 (2017).
The guidelines provide a schedule for calculating ‘‘the
basic child support obligation,’’ which is based on the
number of children in the family and the combined
net weekly income of the parents. Regs., Conn. State
Agencies § 46b-215a-2c (e).
In support of the application of these guidelines, Gen-
eral Statutes § 46b-215b (a) provides in relevant part:
‘‘The child support and arrearage guidelines issued pur-
suant to [§] 46b-215a . . . shall be considered in all
determinations of child support award amounts . . . .
In all such determinations, there shall be a rebuttable
presumption that the amount of such awards which
resulted from the application of such guidelines is the
amount to be ordered. A specific finding on the record
that the application of the guidelines would be inequita-
ble or inappropriate in a particular case, as determined
under the deviation criteria established by the Commis-
sion for Child Support Guidelines under [§] 46b-215a,
shall be required in order to rebut the presumption in
such case.’’
Section 46b-215a-5c of the Regulations of Connecti-
cut State Agencies, which describes the circumstances
that may justify a support order different from the pre-
sumptive support amounts calculated under the child
support guidelines, provides as a criterion for deviation
under subsection (b): ‘‘(3) Extraordinary parental
expenses . . . In some cases, a parent may incur
extraordinary expenses that are not considered allow-
able deductions from gross income, but which are nec-
essary for the parent to maintain a satisfactory parental
relationship with the child, continue employment, or
provide for the parent’s own medical needs. Only the
following expenses, when found to be extraordinary
and to exist on a substantial and continuing basis, may
justify a deviation from presumptive support amounts
under this subdivision: (A) significant visitation
expenses . . . .’’
‘‘Our courts have interpreted this statutory and regu-
latory language as requiring three distinct findings in
order for a court to properly deviate from the child
support guidelines in fashioning a child support order:
(1) a finding of the presumptive child support amount
pursuant to the guidelines; (2) a specific finding that
application of such guidelines would be inequitable and
inappropriate; and (3) an explanation as to which devia-
tion criteria the court is relying on to justify the devia-
tion.’’ Righi v. Righi, supra, 172 Conn. App. 436–37.
There is negligible appellate case law explicating the
deviation criterion for significant visitation expenses.5
In the present case, both parties referenced the Green-
wich apartment rental in their proposed orders. The
plaintiff requested that ‘‘[p]ast, current and future child
related expenses [in]curred by plaintiff such as traveling
from and to Greenwich for parenting time, rent and
utilities of the Greenwich apartment used solely for
parenting time with the minor child should be . . .
paid in accordance to the child support guidelines cur-
rently in effect, 80 [percent] defendant, 20 [percent]
plaintiff, unless modified. Plaintiff do[es] not reside at
the Greenwich apartment except during parenting time
with the minor child.’’ In the defendant’s amended pro-
posed orders, she specifically requested that the plain-
tiff’s parenting time be ‘‘at his Greenwich apartment
and only within the Town of Greenwich, CT.’’ In its
memorandum of decision, the court expressly found
that ‘‘[t]he plaintiff rented and renovated an apartment
in proximity to the defendant’s and child’s residence
to be able to spend time with [the child].’’ The court
also prohibited the plaintiff from removing the child
from Greenwich, which proscribed the plaintiff from
spending his parenting time at his residence in New
York City.
Both parties also recognized that the Greenwich
apartment was maintained for the child. During the
March 4, 2015 status conference, the court asked the
plaintiff what time he would be ‘‘home’’ in Greenwich,
to which the plaintiff responded that he lived in New
York City. Although the defendant’s counsel interjected
that he lived in ‘‘both places,’’ the plaintiff clarified that
the apartment in Greenwich is ‘‘the baby’s apartment’’
and stated that he had ‘‘a bed on top of the kitchen.’’
The defendant’s counsel, in closing argument, also
referred to the Greenwich apartment as ‘‘Baby [L]’s
apartment.’’
Moreover, the plaintiff consistently identified the
costs associated with maintaining the Greenwich apart-
ment as expenses related to the child, and such
expenses were not challenged by the defendant. In his
financial affidavit dated May 4, 2016, the plaintiff
reported the following monthly expenditures: Green-
wich apartment rent ($1475), Greenwich electricity
($60), Greenwich cable/internet/phone ($117), and
Greenwich apartment up-keeping ($10).6 He further
reported monthly travel expenses to and from Green-
wich in the amount of $702. He also listed these
expenses in an attachment to his amended proposed
orders dated May 10, 2016. During trial, the plaintiff
introduced into evidence a list of expenses related to
the Greenwich apartment from October, 2014 through
May, 2015, in the amount of $45,399.13. Rather than
dispute these expenses, the defendant’s counsel refer-
enced the list in closing argument, remarking that the
plaintiff ‘‘spent $45,399 in less than six months on Baby
[L]’s apartment in Greenwich.’’
In its memorandum of decision, the court did not
address the plaintiff’s request that his child support
obligation reflect the undisputed expenses related to
the Greenwich apartment. The trial court did, however,
expressly find that the plaintiff had rented and reno-
vated the apartment to be able to spend time with his
child. In order to make that finding, the trial court
necessarily had before it evidence that it deemed credi-
ble that the plaintiff had both rented and renovated that
apartment.7 Having made that finding, the court should
have then analyzed whether application of the guide-
lines would be inequitable or inappropriate and should
have determined, pursuant to § 46b-215a-5c of the Regu-
lations of Connecticut State Agencies, whether the cri-
terion for deviation on the basis of significant visitation
expenses was met. The court should have considered
whether the expenses are ‘‘necessary for the parent to
maintain a satisfactory parental relationship with the
child,’’ and whether such expenses ‘‘exist on a substan-
tial and continuing basis.’’ On remand, in determining
whether the plaintiff has incurred significant visitation
expenses warranting a deviation from the presumptive
support amounts calculated under the child support
guidelines, the court may consider that the plaintiff
consistently represented that he resided in New York
City at the time of the child’s birth and that he continues
to reside in New York City, but is required to spend his
parenting time within the town of Greenwich. The court
may further consider that the defendant never chal-
lenged the amount of the Greenwich apartment
expenses or that such expenses were incurred by the
plaintiff for the sole purpose of effectuating parenting
time with their child.
Accordingly, we conclude that the court, having
found that the plaintiff ‘‘rented and renovated an apart-
ment in proximity to the defendant’s and child’s resi-
dence to be able to spend time with’’ the child, abused
its discretion in failing to analyze whether his visitation
expenses warranted a deviation from the child support
guidelines. The proper remedy is to remand the matter
for the court to hold a new hearing on the issue of
calculation of child support.8
II
The plaintiff also claims that the court abused its
discretion in restricting the plaintiff’s parenting time
with his child to the town of Greenwich. He argues that
the court made no findings supporting this onerous
order, and that the restriction is inconsistent with the
court’s finding that it is in the best interest of the child
to ‘‘spend significant, quality time with his father.’’ We
disagree that the court abused its discretion.
‘‘The authority of a court to render custody, visitation
and relocation orders is set forth in General Statutes
§ 46b-56. In making or modifying any order with respect
to custody or visitation, the court shall . . . be guided
by the best interests of the child . . . . The best inter-
ests of the child include the child’s interests in sustained
growth, development, well-being, and continuity and
stability of its environment. . . . The trial court is
vested with broad discretion in determining what is in
the child’s best interests.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Gina M.G.
v. William C., 77 Conn. App. 582, 587–88, 823 A.2d
1274 (2003). The foundation for the abuse of discretion
standard in family matters is ‘‘that the trial court is in
a clearly advantageous position to assess the personal
factors significant to a domestic relations case, such
as demeanor and attitude of the parties at the hearing.’’
(Internal quotation marks omitted.) Szczerkowski v.
Karmelowicz, 60 Conn. App. 429, 432, 759 A.2d 1050(2000).
The following additional facts are relevant to this
claim. In its corrected memorandum of decision, the
court began by noting that it had reviewed and consid-
ered the criteria contained in relevant statutes, includ-
ing § 46b-56. The court concluded that it was in the
best interest of the child to live with the defendant and
‘‘spend significant, quality time’’ with the plaintiff. It
also, however, recognized a ‘‘high level of conflict and
mistrust between the parents,’’ and noted that the defen-
dant ‘‘proposes certain restrictions regarding transpor-
tation and location of the plaintiff’s parenting time that
she believes are essential to address the child’s safety.’’
With respect to the parties’ capacity to meet the needs
of the child, the court concluded that the plaintiff ‘‘has
exhibited considerable lack of knowledge and under-
standing of the needs of his son as a newborn, infant,
and toddler. While his parenting skills improved with
supervision, the evidence reveals that his singular focus
on what he perceives to be the failings of the defendant
appears to diminish his capacity for recognizing and
prioritizing the developmental needs of his son.’’
The court further found that the plaintiff had made
efforts to establish a healthy relationship with his child,
but that his efforts were hindered in part by the plain-
tiff’s arrest for disorderly conduct, which prohibited
contact with the child for nearly four months. Although
the court found that both parents demonstrate a respect
for court orders, the court also found that the plaintiff
‘‘engages in manipulation and coercive behavior in an
effort to involve the child in the parents’ dispute.’’ The
court ordered a minimum of seventeen hours biweekly
parenting time for the plaintiff, and further ordered that
such parenting time shall occur in Greenwich.
The plaintiff argues that the court’s restriction of his
parenting time to the town of Greenwich was capricious
and points to the court’s findings that both parents
‘‘demonstrate a respect for court orders’’ and ‘‘have the
ability to be actively involved in the life of the child.’’9
The plaintiff does not challenge and, instead, ignores the
court’s findings expressing concern about the plaintiff’s
lack of understanding of his child’s needs and the fac-
tors hindering the plaintiff’s establishment of a healthy
relationship with his child, who was just twenty-three
months old at the time of trial. We conclude that the
plaintiff has failed to demonstrate that the court abused
its discretion in limiting the plaintiff’s parenting time
to the town of Greenwich.10
The judgment is reversed only as to the child support
related orders and the case is remanded for further
proceedings on those issues; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
Because we agree with the plaintiff’s second claim and reverse the
judgment and remand the case for further proceedings on the issue of
calculation of child support, we need not reach his first claim. See Kavanah
v. Kavanah, 142 Conn. App. 775, 782, 66 A.3d 922 (2013) (remanding to trial
court for new hearing on financial issues regarding child support where
court abused its discretion in ordering downward deviation from guidelines).
However, we note as a general matter that under the child support guidelines,
‘‘the child support obligation first is determined without reference to earning
capacity, and earning capacity becomes relevant only if a deviation from
the guidelines is sought’’ under § 46b-215a-5c (b) (1) (B) of the Regulations
of Connecticut State Agencies. Fox v. Fox, 152 Conn. App. 611, 635, 99 A.3d
1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014); see footnote 8 of
this opinion.
2
We note that the plaintiff properly commenced this action in the judicial
district of Stamford-Norwalk, where the defendant and child reside. General
Statutes § 51-345 (a) (3) (E) governs venue in civil actions and provides in
relevant part that if either the plaintiff or the defendant resides in the town
of Greenwich, the ‘‘action may be made returnable at the option of the
plaintiff to either the judicial district of Stamford-Norwalk or the judicial
district of Fairfield.’’ Although neither of the parties appear to have filed a
motion to transfer the action, the court transferred the action from Stamford
to the judicial district of New Haven on March 16, 2018.
General Statutes § 51-347b (a) provides in relevant part: ‘‘Any action . . .
may be transferred, by order of the court on its own motion or on the
granting of a motion of any of the parties, or by agreement of the parties,
from the superior court for one judicial district . . . to a superior court
location for any other judicial district, upon notice by the clerk to the parties
after the order of the court, or upon the filing by the parties of a stipulation
signed by them or their attorneys to that effect.’’
Practice Book § 12-1 further provides in relevant part: ‘‘Any cause . . .
may be transferred from a judicial district court location to any other judicial
district court location or to any geographical area court location, or from
a geographical area court location to any other geographical area court
location or to any judicial district court location, by order of a judicial
authority (1) upon its own motion or upon the granting of a motion of
any of the parties, or (2) upon written agreement of the parties filed with
the court.’’
3
The court made further orders with respect to the guardian ad litem,
coparenting counseling, notice of issues concerning the child, and health
insurance.
4
The plaintiff also briefly challenges the court’s orders that he pay approxi-
mately $45,000 of the outstanding guardian ad litem fees and half of any
coparenting counseling fees. He offers no support for this challenge other
than asserting generally that the totality of the court’s financial orders
‘‘imposed an unsustainable financial burden.’’ The plaintiff’s cursory argu-
ment does not provide a basis in law for this court to conclude that the
trial court abused its discretion in issuing these orders. See Juma v. Aomo,
143 Conn. App. 51, 61, 68 A.3d 148 (2013).
5
This court has explained that ‘‘[m]any non-custodial parents have some
transportation costs to see their child—for parents living within driving
distance of each other, for example, the non-custodial parent is likely to
pay for fuel and other costs picking up or dropping off the child, but these
ordinary expenses usually do not warrant a deviation from the presumptive
amount.’’ (Internal quotation marks omitted.) Kavanah v. Kavanah, supra,
142 Conn. App. 781–82 (trial court abused its discretion in ordering a devia-
tion based on travel expenses defendant incurred in driving from Monroe
to Southington every other weekend of his parenting time with his child,
where court failed to identify why such travel costs were ‘‘extraordinary’’
so as to warrant deviation). The trial court, however, has had occasion to
consider similar facts involving a parent’s rental of an apartment for the
purpose of spending parenting time with his child, finding such expenses
to constitute ‘‘extraordinary visitation expenses’’ necessary to maintain a
healthy and satisfactory parental relationship with the child. See Doroski
v. Doroski, Superior Court, judicial district of New London, Docket No. FA-
04-0129861-S (Oct. 2, 2012) (after defendant moved to New York City, his
$700 per month expense to rent Niantic residence ‘‘which he would not
otherwise do but for the need to have a place to stay while visiting with
the minor child’’ and $250 per month additional gas expense justified child
support award that deviated from guidelines); see also Milbert v. Milbert,
Superior Court, judicial district of Hartford, Docket No. HHD-FA-155039631-
S (July 17, 2017) (finding deviation justified on the basis of the father’s
increased visitation expenses, including flights, hotels, meals, and renting
a car, after the child’s mother moved with the child to Oregon); Bushey v.
Bushey, Superior Court, judicial district of Stamford-Norwalk, Docket No.
FA-96-0152020-S (Mar. 12, 2002) (finding payment of presumptive support
obligation by the plaintiff would be inequitable and that deviation from
guidelines is appropriate because of significant visitation expenses and
maintaining living accommodations for children when they visit plaintiff).
6
The plaintiff previously had identified Greenwich apartment expenses
in his May 1, 2015 financial affidavit.
7
Although the trial court broadly rejected ‘‘the information on the plaintiff-
appellant’s sworn financial affidavits regarding his income from employment
and expenses’’ as not truthful, we read this language contained in the court’s
articulation as necessarily rejecting only certain of the plaintiff’s expenses.
A reading of the articulation as rejecting the plaintiff’s reported monthly
child expenses, which included the expenses associated with the renting of
the Greenwich apartment, would be inconsistent with the court’s express
finding that the plaintiff had rented and renovated the apartment.
8
Although we need not address the plaintiff’s claim that the court erred
in finding that he had an earning capacity of $174,356; see footnote 1 of
this opinion; we reiterate the procedure that a court must follow before
ordering child support on the basis of the deviation criteria of a party’s
earning capacity.
‘‘Under the guidelines, the child support obligation first is determined
without reference to earning capacity, and earning capacity becomes rele-
vant only if a deviation from the guidelines is sought’’ under § 46b-215a-
5c (b) (1) (B) of the Regulations of Connecticut State Agencies. (Internal
quotation marks omitted.) Fox v. Fox, 152 Conn. App. 611, 635, 99 A.3d
1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014); see also Unkelbach
v. McNary, 244 Conn. 350, 371, 710 A.2d 717 (1998); Berger v. Finkel, 161
Conn. App. 416, 427, 128 A.3d 508 (2015) (‘‘[a] party’s earning capacity is a
deviation criterion under the guidelines’’ [internal quotation marks omitted]).
‘‘[T]he amount of support determined without reference to the deviation
criteria is presumed to be the correct amount of support, and that presump-
tion 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.’’ (Internal quotation marks omitted.)
Fox v. Fox, supra, 635.
This court previously has found significant that there is no express or
implied reference to earning capacity in § 46b-215a-2c of the Regulations
of Connecticut State Agencies, which provides that the regulation ‘‘shall be
used to determine the current support . . . components of all child support
awards within the state, subject to [§ 46b-215a-5c] of the Regulations of
Connecticut State Agencies.’’ (Internal quotation marks omitted.) Id. Where
the regulation refers to any type of earned income, it does so in the context
of ‘‘gross income’’ and ‘‘net income.’’ Id., 635–636. ‘‘Gross income’’ is defined
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.’’ Id., 636; see Regs., Conn. State Agencies § § 46b-
215a-1 (11) and (18). Earning capacity is not listed among the ‘‘gross income
inclusions.’’ Fox v. Fox, supra, 52 Conn. App. 636. Earning capacity is instead
found among the criteria for deviation from presumptive support amounts,
as a type of ‘‘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.’’ Regs., Conn. State Agencies § 46b-
215a-5c (b) (1).
Given this regulatory framework, a court errs in calculating child support
on the basis of a parent’s earning capacity without first stating the presump-
tive support amount at which it arrived by applying the guidelines and using
the parent’s actual income and second finding application of the guidelines
to be inequitable or inappropriate. See Deshpande v. Deshpande, 142 Conn.
App. 471, 478–79, 65 A.3d 12 (2013) (‘‘[b]ecause the court failed to specify
the presumptive amount or make any findings regarding a deviation from
that amount, we can only speculate as to the amount, whether the court’s
child support order deviated from that amount and, to the extent that there
was a deviation, whether the circumstances of this case justified a variance
from the presumptive amount based on the court’s application of the devia-
tion criteria’’); see also Righi v. Righi, supra, 172 Conn. App. 439 (‘‘enact-
ment’s ‘specific finding’ requirement must be stated explicitly by the court
and cannot be inferred merely from the court’s determination that deviation
from the guidelines is fair and equitable’’); Barcelo v. Barcelo, 158 Conn.
App. 201, 215, 118 A.3d 657 (court’s award was improper in part because
it failed to cite the presumptive support amount calculated with the defen-
dant’s actual net income, and then did not invoke the defendant’s earning
capacity as a deviation criterion in calculating his child support obligation),
cert. denied, 319 Conn. 910, 123 A.3d 882 (2015).
This court previously has stated that ‘‘the reason why a trial court must
make an on-the-record finding of the presumptive support amount before
applying the deviation criteria is to facilitate appellate review in those cases
in which the trial court finds that a deviation is justified. . . . In other
words, the finding will enable an appellate court to compare the ultimate
order with the guideline amount and make a more informed decision on a
claim that the amount of the deviation, rather than the fact of a deviation,
constituted an abuse of discretion.’’ (Citation omitted; internal quotation
marks omitted.) Kiniry v. Kiniry, 299 Conn. 308, 320, 9 A.3d 708 (2010).
9
The plaintiff’s related argument that the geographic limitation ‘‘imposes
a very substantial financial burden upon the plaintiff which interferes with
the court’s stated desires concerning support and payments to the guardian
ad litem,’’ has been addressed in part I of this opinion.
10
The defendant argues in her brief that the plaintiff’s appeal is frivolous
and claims that the plaintiff cited facts not found by the trial court. She
requests sanctions in the form of attorney’s fees under Practice Book § 85-
2. We decline to address this issue because the defendant failed to make
her request in a separate motion. See Tyler v. Tyler, 163 Conn. App. 594,
598 n.3, 133 A.3d 934 (2016) (declining to review request for sanctions when
not raised in motion for sanctions); Hernandez v. Dawson, 109 Conn. App.
639, 644, 953 A.2d 664 (2008) (same); Practice Book § 85-3.