Becue v. Becue , 185 Conn. App. 812 ( 2018 )

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JULIE BECUE v. MARK BECUE
(AC 38994)
Alvord, Prescott and Pellegrino, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from certain postjudgment orders of
the trial court. He claimed, inter alia, that the trial court improperly
determined the amount of his child support, arrearage, and expense
obligations. The plaintiff cross appealed, claiming that the trial court
erred when it denied her motion for contempt in which she alleged that
the defendant improperly engaged in self-help by repeatedly modifying
or withholding his child support payments. Held:
1. The trial court abused its discretion when it declined to find the defendant
in contempt for engaging in self-help; the evidence clearly demonstrated
that the defendant stopped paying child support in January, 2012, did
not resume any type of child support payment for an entire year despite
new gainful employment and, thereafter, changed the amount he decided
to pay, and it was undeniable that the defendant made those modifica-
tions to his court-ordered child support without the court’s permission,
chose not to comply with the court’s child support order and, thus,
wilfully engaged in self-help in breach of that order.
2. The trial court properly determined the defendant’s child support, arrear-
age, and expense obligations: contrary to the defendant’s contention,
the trial court’s net income findings had an evidentiary basis in the
record, the defendant did not explain how the court’s use of Judicial
Branch software to assist with calculations was extra-evidentiary, pro-
vided the data being input was based on the evidence or matters for
which the court properly took judicial notice, and all of the named
documents on which the court stated it relied, as well as many other
financial documents, were contained in the record; moreover, the defen-
dant’s claim that the court failed to give consideration to his request
for a deviation from the presumptive amount of child support failed, as
the record established that the court considered the defendant’s request
for a deviation and stated on the record that if it found any merit to
the defendant’s request it would permit further argument on it, and the
trial court’s response to the defendant’s motion for reargument on his
request for a deviation was appropriate in that the court considered the
issues raised and submitted a corrected memorandum of decision in
which it determined that it would be equitable and appropriate not to
deviate from the child support guidelines, which was not an abuse of
discretion, as the dissolution court did not make a finding on the record
that the application of the guidelines would be inequitable or inappropri-
ate at the time it rendered judgment incorporating the parties’ dissolution
agreement, and in the absence of such a finding, the trial court had the
discretion to consider the question of a modification of child support
anew in accordance with the guidelines, and found a substantial change
in circumstances such that a deviation from the guidelines would have
been inappropriate and inequitable and would have left the plaintiff
with insufficient funds to meet the needs of the parties’ children.
3. The defendant’s claim that the trial court abused its discretion in ordering
him to pay $50,000 in attorney’s fees to the plaintiff lacked merit; the
parties’ dissolution agreement provided for the payment of attorney’s
fees in the event a breach occurred, and the court’s finding that the
defendant had breached a provision of the agreement regarding child
support when he reduced his child support payments unilaterally without
court intervention was amply supported by the evidence in the record.
4. The trial court did not abuse its discretion when it declined to hold
the plaintiff in contempt for allegedly violating the parties’ dissolution
agreement; the court specifically found that the paragraph at issue involv-
ing the filing of tax returns was ambiguous, and that the defendant had
failed to prove by clear and convincing evidence that the plaintiff wilfully
violated the provision, as the court found that to the extent the plaintiff
may have breached the agreement, her breach was not wilful but was
based on a good faith misunderstanding of the ambiguous provision.
5. The trial court did not abuse its discretion when it held the defendant in
contempt for failing to make certain child support payments; the record
was clear that the orders that the defendant violated were clear and
unambiguous and amply supported the trial court’s finding that the
defendant’s failure to abide by the court’s order was wilful, as it was
undisputed that the defendant failed to pay any amount of child support
from May through August, 2015, and as a result of the defendant’s
unilateral decision to stop paying child support during that time, it
was not an abuse of discretion for the court to find the defendant in
wilful contempt.
Argued May 29—officially released November 6, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Hon.
Stanley Novack, judge trial referee; judgment dissolving
the marriage and granting certain other relief; there-
after, the court, Shay, J., granted the plaintiff’s motion
for order and motions for attorney’s fees, denied the
plaintiff’s motions for contempt, granted the defen-
dant’s motion for modification, and denied the defen-
dant’s motions for contempt, motions for attorney’s
fees, motions for order, and motions to compel; subse-
quently, the court, Hon. Michael E. Shay, judge trial
referee, issued a corrected memorandum of decision,
and the defendant appealed and the plaintiff cross
appealed to this court; thereafter, the court, Hon.
Michael E. Shay, judge trial referee, granted the defen-
dant’s motion for articulation. Reversed in part; fur-
ther proceedings.
John H. Van Lenten, for the appellant-cross appel-
lee (defendant).
Richard W. Callahan, for the appellee-cross appel-
lant (plaintiff).
Opinion
PELLEGRINO, J. In this postdissolution matter, the
defendant, Mark Becue, appeals from the judgment of
the trial court, resolving several of the parties’ postjudg-
ment motions. The defendant claims that the court
improperly: (1) determined the amount of his child sup-
port and his arrearage obligations due to four specific
errors; (2) ordered him to pay $50,000 toward the attor-
ney’s fees of the plaintiff, Julie Becue; (3) declined to
hold the plaintiff in contempt; and (4) held him in con-
tempt for failing to make certain child support pay-
ments. The plaintiff, Julie Becue, cross appeals from
the court’s judgment. Specifically, she claims that the
court erred when it denied her motion for contempt,
number 157, in which she alleged that the defendant
improperly had engaged in self-help by repeatedly modi-
fying or withholding his child support payments. We
disagree with all of the defendant’s claims, and we agree
with the claim raised in the plaintiff’s cross appeal.
Accordingly, we affirm in part and reverse in part the
judgment of the trial court.
The following procedural history, although compli-
cated, is relevant. The court dissolved the parties’ mar-
riage on March 16, 2010. At that time, the parties had
three minor children, the oldest of whom was eleven.
The court found that the parties’ marriage had broken
down irretrievably, and it accepted, as fair and equita-
ble, the parties’ written separation agreement and par-
enting plan (agreement), which the court incorporated
by reference into the dissolution judgment. The
agreement provided that the parties would share joint
legal and physical custody of their minor children and
that the defendant would pay to the plaintiff $260 per
week in child support, which the court recognized was
a deviation from the presumptive amount of $451 as
calculated using the child support guidelines.1 The court
also found that this deviation would not negatively
impact the children.2
Approximately two years later, the parties began to
file a seemingly endless stream of motions. On February
2, 2012, the plaintiff filed a postjudgment motion for
contempt, number 157, alleging that, as of January 1,
2012, the defendant had failed to comply with the
court’s order that he pay $260 per week in child support.
The plaintiff also filed a motion for attorney’s fees,
number 158, on the same date.
On February 7, 2012, the defendant filed a motion
for modification, number 159.01, on the ground that
there had been a substantial change in circumstances.
He alleged that he no longer was employed at the rate
of $205,000 per year, and, in accordance with paragraph
5.1 of the parties’ agreement; see footnote 1 of this
opinion; he, therefore, was not required to pay child
support. The defendant also sought, inter alia, to have
the plaintiff pay child support to him.3
On April 5, 2012, the defendant filed a motion for
contempt, number 166, on the ground that the plaintiff
had violated the parenting plan contained in the parties’
agreement, and, on April 17, 2012, he filed a motion,
number 169, for attorney’s fees. On July 19, 2012, the
defendant filed three additional motions for contempt,
numbers 181, 182, and 183, on the ground that the plain-
tiff had violated the parenting plan contained in the
parties’ agreement, and that she had failed to provide
an itemized accounting. On August 3, 2012, the defen-
dant filed another motion for contempt, number 190,
on the ground that the plaintiff was in violation of the
parenting plan. Also on August 3, 2012, the plaintiff filed
a motion for contempt, number 188, on the ground that
the defendant had failed to comply with discovery, and
a motion for order, number 189, requesting that the
court set the percentages that the parties must pay for
the children’s summer camp.
On January 25, 2013, the defendant filed a motion for
order, number 193, requesting that the court grant to
him the final authority on all major decisions affecting
the minor children. On April 30, 2013, the defendant
filed three additional motions for order, numbers 194,
195, and 196, requesting that the court order the plaintiff
to sign authorizations for the defendant to obtain sev-
eral years of her federal and state tax returns. On May
31, 2013, the defendant filed another motion for con-
tempt, number 197, on the ground that the plaintiff
again had violated the parenting plan contained in the
parties’ agreement.4 On November 18, 2013, the defen-
dant filed a motion for order, number 200, requesting
that the court direct the plaintiff to comply with various
provisions of the parties’ agreement regarding health
insurance for the children.5 On December 9, 2013, the
defendant filed another motion for contempt and
motion to compel, numbers 201 and 202, regarding the
plaintiff’s tax returns. On December 31, 2013, the plain-
tiff filed a motion for contempt, number 203, regarding
the defendant’s child support obligation.6
On December 29, 2014, and January 5, 2015, the defen-
dant filed two more motions for contempt, numbers
213 and 214, the first alleging that the plaintiff was in
violation of the parenting plan set forth in the parties’
agreement, and the second alleging that the plaintiff
was in violation of an aspect of the agreement concern-
ing her tax returns, and a motion to compel, number
215. On January 26, 2015, the plaintiff filed a motion
for attorney’s fees,7 number 216, and, on April 27, 2015,
the defendant filed a motion for attorney’s fees, num-
ber 223.
Following a four day hearing involving more than
twenty motions, and the submission of proposed orders
and financial affidavits by each of the parties, the court,
on August 27, 2015, issued a memorandum of decision.
Shortly after the court rendered judgment, the plaintiff
filed a motion to reargue/reconsider, asking the court to
correct certain findings and mathematical calculations
contained in the original memorandum of decision. The
court granted that motion and, on February 23, 2016,
issued some corrections to its August 27, 2015 memo-
randum of decision. Taking into consideration the origi-
nal and the corrected memoranda of decision, the court
made the following rulings on the relevant motions of
the parties.
Regarding the plaintiff’s postjudgment motion for
contempt, number 157, her motion for attorney’s fees,
number 158, and the defendant’s motion for modifica-
tion, number 159.01, the court denied the motion for
contempt, granted the motion for attorney’s fees, and
granted the motion for modification. The court found
that the defendant’s position that, on the basis of para-
graph 5.1 of the parties’ agreement, he could reduce his
child support unilaterally, without court intervention,
if his earnings were less than $205,000 per year, was
‘‘completely unreasonable and without merit.’’ Never-
theless, the court found that the defendant’s unilateral
actions, ‘‘under all the facts and circumstances . . . do
not amount to wilful contempt in that he had, in good
faith, relied upon professional assistance in the prepara-
tion of the child support guidelines worksheets that
formed the basis of his modified child support pay-
ments.’’ The court also determined that a substantial
change in circumstances had arisen in that the defen-
dant had become unemployed at the time he filed his
February 7, 2012 motion for modification. After calcu-
lating the amount of support due during the various
periods of changing income, the court concluded that
the defendant had an arrearage, as of June 30, 2015,
in the amount of $59,254. It also concluded that the
defendant’s share of support for the parties’ minor chil-
dren, as of June 30, 2015, was $539 per week. Addition-
ally, the court also concluded that the plaintiff was
entitled to reasonable attorney’s fees because the defen-
dant had breached the agreement of the parties.
Regarding the defendant’s April 5, 2012 motion for
contempt, number 166, and his motion for attorney’s
fees, number 169, the court denied both motions, find-
ing that the defendant had not met his burden of proof
on the contempt allegation.
Regarding the defendant’s motions for contempt,
numbers 181, 182, and 183, and the plaintiff’s motion for
contempt, number 188, the court denied those motions,
finding that any violation of the parenting plan by the
plaintiff was de minimus, and that each of the parties
had failed to establish contumacious behavior on the
part of the other party.
Regarding the plaintiff’s motion for order, number
189, requesting that the court set the percentages that
the parties must pay for summer camp, the court found
that the parties’ agreement was silent on this issue and
that the children would be best served if each party
contributed to the activities on a predetermined basis
such as they do for reasonable medical expenses.
Regarding the defendant’s motions for contempt,
numbers 190 and 213, alleging that the plaintiff was in
violation of the parenting plan, the court found that the
defendant had failed to meet his burden of proof and
that the plaintiff had attempted to address these issues
with the defendant, but that the defendant had failed
to respond in a good faith manner.
Regarding the defendant’s motion for order, number
193, requesting that the court grant to him final author-
ity on all major decisions affecting the minor children,
the court found that giving the defendant such authority
would not be in the best interest of the children because
the defendant had ‘‘exhibited a pattern of rigidity, close-
mindedness, and vindictiveness in his dealings with the
[plaintiff] . . . .’’
Regarding the defendant’s motions for order, num-
bers 194, 195, and 196, requesting that the court order
the plaintiff to sign authorizations for the defendant to
obtain several years of her federal and state tax returns,
the court denied those motions, concluding that,
although the evidence supported a finding that the plain-
tiff inadvertently overpaid her taxes, the order
requested by the defendant was unnecessary and
unwarranted.
Regarding the defendant’s motion for contempt, num-
ber 197, again alleging that the plaintiff violated the
parenting plan, the court denied this motion concluding
that the ‘‘testimony and evidence clearly support a find-
ing that the [plaintiff] has not interfered with the exer-
cise of the [defendant’s] parenting rights . . . [that] the
[defendant’s] position is supported by neither law nor
logic nor the facts . . . and [t]hat the [defendant’s]
claim is both mean-spirited and without merit . . . .’’
Regarding the defendant’s motion for order, number
200, requesting that the court direct the plaintiff to
comply with various provisions of the parties’
agreement regarding health insurance for the children,
the court found that the basis of the defendant’s motion
did not involve any alleged failure by the plaintiff to
maintain the children on her health insurance, but,
rather, that it was about the defendant wanting control
of the plaintiff’s health savings debit card. The court
found the defendant’s position on this issue both ‘‘far-
fetched’’ and ‘‘unsupportable by law.’’ As to the plain-
tiff’s motion for contempt, number 203, the court deter-
mined that the plaintiff had withdrawn this motion.
Regarding the defendant’s motions for contempt and
to compel, numbers 201, 202, 214, and 215, alleging
that the plaintiff was in violation of an aspect of the
agreement concerning her tax returns, the court found
that the defendant had failed to meet his burden of
proof.
Regarding the plaintiff’s motion for attorney’s fees,
number 216, and the defendant’s motion for attorney’s
fees, number 223, the court found that the plaintiff
was entitled to reasonable attorney’s fees due to the
defendant’s breach of the parties’ agreement, but that
the defendant was not entitled to attorney’s fees.
This appeal followed. Additional facts will be set forth
as necessary. We first consider the plaintiff’s cross
appeal, followed by each of the issues raised by the
defendant in his appeal.
I
THE PLAINTIFF’S CROSS APPEAL
The plaintiff claims in her cross appeal that the court
erred when it declined to hold the defendant in con-
tempt for engaging in self-help by repeatedly modifying
his child support payments without an order of the
court. She argues that the evidence demonstrates that
the defendant wilfully violated the child support order
on multiple occasions and that there is nothing in the
record to support the court’s conclusion that the defen-
dant’s repeated self-help should be excused because of
a good faith dispute or a misunderstanding. On the
basis of the evidence and the court’s factual findings,
we agree.
The record reveals that at the time of the dissolution
in March, 2010, the defendant had received an offer of
employment with a salary of $205,000, but he had not
yet started his new job. Initially, the defendant met his
child support obligation of $260 per week, but in late
2011 he became unemployed. Thereafter, on January
1, 2012, the defendant ceased paying child support, and,
on February 2, 2012, the plaintiff filed a motion for
contempt and a motion for attorney’s fees. The defen-
dant, on February 7, 2012, filed a motion for modifica-
tion of the child support order on the ground that his
unemployment constituted a substantial change in cir-
cumstances. As set forth extensively in our overview of
the procedural history of this case, many more motions
were filed by both parties.
Before these motions were heard by the court, the
defendant repeatedly modified or withheld his child
support payments. In response to changes in his
income, the defendant recalculated his child support
obligation on the basis of his then present income, using
a deviation factor, and he offset what he calculated he
owed against what he calculated he had overpaid to the
plaintiff during the early period of his unemployment.
The court explained the defendant’s position as fol-
lows: ‘‘[I]f at any time he is not earning $205,000 [per]
year, he has the right to arbitrarily recalculate child
support on a fluctuating basis depending upon his [then]
present income.’’ The court specifically found that the
language in paragraph 5.1 was clear and unambiguous,
and that the defendant’s position was ‘‘both completely
unreasonable and without merit.’’ The court also found
that although ‘‘the [bracketed] phrase [in the
agreement] taken by itself (the brackets are in the origi-
nal) would appear to support [the defendant’s construc-
tion], he has taken that phrase completely out of
context.’’ Nevertheless, the court found that the defen-
dant’s unilateral modifications of his child support obli-
gation were not wilful because ‘‘he had, in good faith,
relied upon professional assistance in the preparation
of the child support guidelines worksheets that formed
the basis of his modified child support payments.’’ The
plaintiff claims that this was error. We agree.
‘‘Contempt is a disobedience to the rules and orders
of a court which has power to punish for such an
offense. . . . A contempt judgment cannot stand
when, inter alia, the order a contemnor is held to have
violated is vague and indefinite, or when the contemnor,
through no fault of his own, was unable to obey the
court’s order. . . .
‘‘Consistent with the foregoing, when we review such
a judgment, we first consider the threshold question of
whether the underlying order constituted a court order
that was sufficiently clear and unambiguous so as to
support a judgment of contempt. . . . This is a legal
inquiry subject to de novo review. . . .
‘‘Second, if we conclude that the underlying court
order was sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.
. . . A finding of contempt is a question of fact, and
our standard of review is to determine whether the
court abused its discretion in failing to find that the
actions or inactions of the [party] were in contempt of
a court order. To constitute contempt, a party’s conduct
must be wilful. . . . Noncompliance alone will not sup-
port a judgment of contempt.’’ (Citation omitted; inter-
nal quotation marks omitted.) Hirschfeld v. Machinist,
181 Conn. App. 309, 318–19, 186 A.3d 771, cert. denied,
329 Conn. 913, 186 A.3d 1170 (2018).
We first consider whether the order at issue is clear
and unambiguous. Accordingly, we begin with the lan-
guage of paragraph 5.1 of the parties’ agreement, which
was incorporated into the judgment of dissolution:
‘‘[T]he Husband shall during his lifetime pay the Wife
the sum of $260.00 per week as and for child support
pursuant to the child support guidelines [provided he
is employed at the rate of Two Hundred and Five Thou-
sand ($205,000.00) Dollars per year]. The Husband’s
obligation with respect to each child shall terminate
when the child attains age eighteen (18), or if a child
is still attending high school when he or she attains age
eighteen (18)8 and graduates high school, whichever
event shall first occur.’’ (Footnote added.)
The plaintiff argues that the trial court correctly
found this provision to be clear and unambiguous in
requiring the defendant to pay a weekly child support
obligation of $260, based upon his anticipated annual
income of $205,000. We agree. The provision clearly sets
forth that the defendant, on the basis of his anticipated
income of $205,000, will pay to the plaintiff child sup-
port in the amount of $260 per week ‘‘pursuant to the
child support guidelines.’’ There is nothing in the
agreement that would permit the defendant to stop
paying support or to change the amount of support,
unilaterally, if his income later changed.
We next consider whether there is clear error in the
court’s finding that the defendant’s disobedience of the
court’s child support order and his failure to seek a
subsequent court order before repeatedly modifying his
child support payments was wilful or was otherwise
excused by a good faith dispute or misunderstanding.
The plaintiff argues that the defendant’s construction
of the agreement, as one permitting him to engage in
self-help whenever his income changed, specifically and
pointedly was found by the court to be ‘‘both completely
unreasonable and without merit.’’ She contends that
these findings demonstrate wilfulness, and that the
court’s later finding that the defendant’s actions were
not wilful is clear error. We agree.
In this case, the court specifically found that the
defendant breached the order of the court. It further
found that the defendant’s position that he unilaterally
or without leave of the court could recalculate and
change or withhold his child support payments on the
basis of his changing income was ‘‘both completely
unreasonable and without merit.’’ The court also
explained: ‘‘While the phrase [in paragraph 5.1] taken
by itself . . . would appear to support [the defendant],
he has taken that phrase completely out of context.
. . . [W]hen taken in context, the clear meaning of the
phrase is that the initial amount of support is tied to
that level of income [($205,000)], and does not preclude
a modification by either party in the event of a substan-
tial change of circumstances or substantial deviation
from the child support guidelines.’’ (Citations omitted;
internal quotation marks omitted.) Despite finding that
the defendant was in breach of the court’s order, that
his construction of the bracketed language in that order
was ‘‘completely unreasonable and without merit,’’ and
that he had taken the language out of context, the court
went on to find that the defendant’s ‘‘actions [did] not
amount to wilful contempt in that he had, in good faith,
relied upon professional assistance in the preparation
of the child support guidelines worksheets that formed
that basis of his modified child support payments.’’
That the defendant may have relied on professional
financial assistance to facilitate the preparation of child
support guideline worksheets in December, 2014,9
sheds no light on whether his decision to engage in
self-help beginning in January, 2012, was wilful or was
based on a good faith dispute or misunderstanding. The
professional advice sought by the defendant was limited
to recalculating his child support obligation on the basis
of his changes in income. There is no evidence in the
record that the defendant sought appropriate legal
advice regarding his right to unilaterally modify his
support obligation.
In this matter, the court specifically found that the
defendant’s construction of the child support order was
‘‘both completely unreasonable and without merit,’’ and
that he had taken the bracketed language in that order
completely out of context. We conclude that these find-
ings evince a wilful decision by the defendant to engage
in self-help, a decision that this court cannot and will
not condone, and that the trial court’s later finding
that the defendant, in good faith, sought assistance in
preparing new child support guidelines worksheets
does not excuse his decision not to seek the guidance
of the court rather than engage in self-help. See Behrns
v. Behrns, 80 Conn. App. 286, 292, 835 A.2d 68 (2003)
(‘‘[W]e will not countenance one party’s interpreting
the term and undertaking unilateral action to the detri-
ment of the other party. In such a circumstance, the
party seeking to alter payments must seek the assis-
tance of the court.’’), cert. denied, 267 Conn. 914, 840
A.2d 1173 (2004). The evidence clearly demonstrates
that the defendant stopped paying child support in Janu-
ary, 2012, and did not resume any type of child support
payment for an entire year, despite new gainful employ-
ment, that he thereafter changed whatever amount he
decided to pay, apparently on the basis of some fluctua-
tion in his income,10 and that he did not seek advice
from Mitchell, the financial advisor, until late Decem-
ber, 2014, nearly three years after he first engaged in
self-help. Furthermore, the defendant’s hiring of Mitch-
ell to facilitate the preparation of child support guide-
line worksheets, even if done sooner, would not excuse
his decision to engage in self-help. It is undeniable that
the defendant made these modifications to his court-
ordered child support without the permission of the
court. There can be no dispute, our law is quite clear:
‘‘An order of the court must be obeyed until it has
been modified or successfully challenged.’’ (Internal
quotation marks omitted.) Eldridge v. Eldridge, 244
Conn. 523, 530, 710 A.2d 757 (1998). Although a good
faith dispute or the inability of a party to obey an order
of the court; see id., 532; may be raised as a defense
to a contempt allegation, in this case, the evidence
supports but one conclusion; the defendant chose not
to comply with the court’s child support order, and he
wilfully engaged in self-help in breach of that order.
Accordingly, we conclude that the court abused its dis-
cretion when it declined to find the defendant in con-
tempt for engaging in self-help.
II
THE DEFENDANT’S APPEAL
In his appeal, the defendant claims that the court
improperly: (1) determined his child support and his
arrearage obligations; (2) ordered him to pay $50,000
toward the attorney’s fees of the plaintiff; (3) declined
to hold the plaintiff in contempt; and (4) held him in
contempt for failing to make certain payments of child
support. We consider each of these claims in turn.
A
The defendant claims that the court ‘‘improperly
determined the defendant’s child support, arrearage,
and expense obligations.’’ The defendant raises four
specific arguments in support of his claim: (1) ‘‘The trial
court’s admission that it used the Family Law Software
program, combined with its inability to articulate the
figures it relied upon to arrive at the net numbers, con-
firms that the trial court used an improper source (post-
trial, nonevidentiary tax calculations) to arrive at the
net incomes’’; (emphasis in original); (2) the court
improperly failed to consider the defendant’s request
for a deviation from the presumptive amount of child
support, (3) the court impermissibly modified its deci-
sion in response to the defendant’s motion for reargu-
ment/reconsideration, and (4) the court abused its
discretion in determining it was equitable and appro-
priate not to deviate from the child support guidelines.
The following additional facts inform our review of
this claim and each supporting argument. In its August
27, 2015 memorandum of decision, the court made the
following net income findings. For the period of March
1, 2012 through May 31, 2012 (first time period), the
defendant’s weekly net income was $750, and the plain-
tiff’s weekly net income was $1304. On the basis of
the parties’ combined weekly net income, the court
determined that the presumptive child support for the
first time period was $474 per week, and that the plain-
tiff’s share was $302 per week.
For the period of June 1, 2012 through December 31,
2012 (second time period), the defendant’s weekly net
income was $2981, and the plaintiff’s weekly net income
was $1304. On the basis of the parties’ combined weekly
net income of $4290 per week, the court determined
that it was appropriate to deviate upward and apply
17.16 percent to the excess income over $4000 per week.
See Regs., Conn. State Agencies § 46b-215a-2b (a) (2)
(repealed July 1, 2015) (‘‘[w]hen the parents’ combined
net weekly income exceeds [$4000], child support
awards shall be determined on a case-by-case basis,
and the current support prescribed at the [$4000] net
weekly income level shall be the minimum presumptive
amount’’). After applying the upward deviation, the
court calculated that the presumptive child support was
$736 per week ($686 plus $50), of which the defendant’s
share was $512.
For the period of January 1, 2013 through June 30,
2015 (third time period), the court found that the defen-
dant’s weekly net income was $3321 and the plaintiff’s
was $1400. On the basis of the parties’ combined weekly
net income of $4720 per week, the court determined
that it was appropriate to deviate upward and apply
17.16 percent to the excess net income over $4000 per
week. After applying the upward deviation, the court
calculated that the presumptive child support was $766
per week ($686 plus $80), of which the defendant’s
share was $539. On the basis of its findings and calcula-
tions, the court determined that ‘‘for the period [of]
January 1, 2012 through June 30, 2015, the [defendant]
owed a total of $87,693 in child support . . . that he
[had] paid a total of $24,513, leaving an arrearage of
$63,180, and that [his] net arrearage [was] $59,254 after
applying a credit of $3926 for the [plaintiff’s] arrears.’’
Following the defendant’s appeal from the court’s
judgment, he filed a motion for articulation, requesting,
inter alia, that the trial court articulate the following:
(1) the legal and factual bases for the court’s findings
of the parties’ net income for each of the three time
periods; (2) the evidentiary sources for the court’s cal-
culations of the parties’ gross incomes for each time
period, including what sources of income were included
or excluded; and (3) the evidentiary sources for the
court’s calculations of the parties’ net incomes for each
time period, including what amounts and sources the
court did or did not deduct from the parties’ gross
incomes to calculate their net incomes.
On November 2, 2016, the court granted the defen-
dant’s motion for articulation and provided the follow-
ing articulation: ‘‘In attempting to fully articulate this
part of its decision, the court has reviewed the file, the
evidence, transcripts of the hearings, its trial notes,
and the child support and arrearage guidelines effective
August 1, 2005. Nevertheless, the court did not save
any rough calculations of income and deductions, nor
has it saved any printed drafts of child support guide-
lines utilizing the Family Law software program [(soft-
ware)]. Moreover, the court is not in a position to
recreate [the] same, since the software program has
been updated to reflect changes made since the effec-
tive date of the current child support guidelines and
arrearage guidelines (July 1, 2015). Therefore, except
as noted below, the court is not in a position to say
with any specificity the income and deductions it may
have relied upon to arrive at the net number.
‘‘Accordingly, the court hereby articulates its deci-
sion as follows:
‘‘1. The legal basis for the court’s original findings is
the mandate that an order of child support be based
upon the net income of the parties. . . .
‘‘2. As to the period March 1, 2012 through May 31,
2012, the court based the plaintiff’s net income of $1304
per week and the defendant’s net income of $750 per
week on, inter alia: (a) the plaintiff’s financial affidavit
(exhibit 50) dated April 25, 2012; (b) on the defendant’s
other income, excluding his income from wages as
shown on line 7, and including his unemployment com-
pensation of $15,570, all as shown on lines 8a, 9a, 10,
13, and 19 of his 2012 federal income tax return (form
1040) and his 2012 state of Connecticut form CT-1040
(exhibit 14); and (c) a child support guidelines work-
sheet prepared by the plaintiff’s counsel and filed with
the court at time of hearing on May 1, 2015 . . . without
objection by [the] defendant’s counsel, both counsel
reserving the right to argue the methodology and accu-
racy of the calculations at the time of final argument.
. . .
‘‘3. For the period June 1, 2012 through December
31, 2012, the court based the plaintiff’s net income of
$1304 per week, and the defendant’s net income of
$2981 per week on, inter alia: (a) the plaintiff’s financial
affidavit (exhibit 50) dated April 25, 2012; (b) on the
defendant’s income, excluding his unemployment com-
pensation of $15,570, all as shown on lines 8a, 9a, 10,
and 13 of his 2012 federal income tax return form (1040),
and his 2012 state of Connecticut form CT-1040 (exhibit
14); and (c) a child support guidelines worksheet pre-
pared by the plaintiff’s counsel and filed with the court
at time of hearing on May 1, 2015 . . . without objec-
tion by [the] defendant’s counsel, both counsel reserv-
ing the right to argue the methodology and accuracy
of the calculations at the time of final argument. . . .
‘‘4. For the period January 1, 2013 through June 30,
201[5], the court based the plaintiff’s net income of
$1400 per week, and the defendant’s net income of
$3321 per week on, inter alia: (a) the plaintiff’s financial
affidavit . . . dated April 29, 2015; (b) the defendant’s
financial affidavit . . . dated April 28, 2015; (c) the
defendant’s 2013 [federal income] tax return (form
1040) and his 2013 state of Connecticut form CT-1040
(exhibit 36); and (d) a child support guidelines work-
sheet prepared by the plaintiff’s counsel and filed with
the court at time of hearing on May 1, 2015 . . . without
objection by [the] defendant’s counsel, both counsel
reserving the right to argue the methodology and accu-
racy of the calculations at the time of final argument.’’
(Citations omitted; emphasis in original.)
We next set forth our standard of review. ‘‘[W]e will
not disturb the trial court’s ruling on a motion for modi-
fication of alimony or child support unless the court
has abused its discretion or reasonably could not con-
clude as it did, on the basis of the facts presented. . . .
Furthermore, [t]he trial court’s findings [of fact] are
binding upon this court unless they are clearly errone-
ous in light of the evidence and the pleadings in the
record as a whole. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) Norberg-Hurlburt v. Hurlburt, 162 Conn.
App. 661, 672–73, 133 A.3d 482 (2016).
We consider each of the defendant’s arguments in
support of his claim that the court ‘‘improperly deter-
mined the defendant’s child support, arrearage, and
expense obligations’’ in turn.
1
The defendant argues that the court improperly deter-
mined the amount of presumptive support for each
time period because its net income findings had no
evidentiary basis as demonstrated by the court’s failure
to make any explicit findings on gross income or on
the specific deductions it used to calculate the parties’
net incomes. More specifically, the defendant argues:
‘‘[T]he gravamen of the defendant’s claim is that the trial
court used posttrial, nonevidentiary tax calculations
generated by the [software] for the creation of its net
income figures. The trial court’s admission that it used
the [software], combined with its inability to articulate
the figures it relied upon to arrive at the net numbers,
confirms that the trial used an improper source (post-
trial, nonevidentary tax calculation) to arrive at the net
incomes.’’ (Emphasis in original.)
Relying on Ferraro v. Ferraro, 168 Conn. App. 723,
728–33, 147 A.3d 188 (2016), the defendant contends
that because the court could not recreate in its articula-
tion its calculations regarding gross income and deduc-
tions for each of the three time periods, the court’s
decision must be reversed and the matter remanded
for a new hearing on child support. He further argues:
‘‘Because the trial court cannot recreate any of the child
support guidelines worksheet[s] for any of the three
time periods, due to the software program update, it is
[in]disputable that the trial court relied on posttrial
calculations generated by the software program, and
not exclusively on the evidence submitted by the parties
at trial. If the court did not rely on posttrial calculations
generated by the software program . . . the court
could have recreated the child support worksheets and
identified, with specificity, the income and deductions
that it relied upon to arrive at the respective parties’
net income for each period. . . . Therefore, the court’s
findings here as to the parties’ net income were likewise
without evidentiary support.’’ (Citations omitted; inter-
nal quotation marks omitted.)
The plaintiff argues that the defendant fails to provide
any ‘‘analysis as to whether the evidence does, or does
not, support the numbers contained within the guide-
lines relied upon by the trial court. The defendant sim-
ply argues that because the trial court cannot articulate
how it arrived at the figures in the guidelines more than
one year after its decision, this court should reverse
[the judgment]. . . . Aside from the fact that there is
evidence in [the] record to support the numbers in the
guidelines utilized by the trial court . . . an appellate
court should not reverse a child support order unless
there [is] no evidence to support the calculation or it
substantially deviates from the presumptive guideline
without explanation . . . .’’ Having thoroughly
reviewed the record in this case, we conclude that there
is evidence to support the court’s net income determina-
tions for each of the three time periods in question.
Accordingly, we find no merit in the defendant’s
argument.
‘‘[T]he [child support] guidelines incorporate [our]
statutory rules and contain 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.’’ (Emphasis added;
internal quotation marks omitted.) Gabriel v. Gabriel,
324 Conn. 324, 337, 152 A.3d 1230 (2016). ‘‘It is well
settled that a court must base child support . . . orders
on the available net income of the parties, not gross
income.’’ (Internal quotation marks omitted.) Tuckman
v. Tuckman, 308 Conn. 194, 209, 61 A.3d 449 (2013). In
reviewing a decision of the trial court, ‘‘[w]e allow every
reasonable presumption . . . in favor of the correct-
ness of [the trial court’s] action.’’ (Internal quotation
marks omitted.) Valentine v. Valentine, 164 Conn. App.
354, 369, 141 A.3d 884, cert. denied, 321 Conn. 917, 136
A.3d 1275 (2016).
Here, the defendant argues that ‘‘the court’s findings
. . . as to the parties’ net income were . . . without
evidentiary support,’’ and, therefore, that the court
improperly determined the amount of presumptive sup-
port for each time period. He bases this argument on
the court’s use of the software provided by the Judicial
Branch and the fact that the court could not recreate
its previously discarded worksheets using that software
because it had been updated since the time of trial.
Relying on Ferraro, the defendant contends that this
proves that the court indisputably ‘‘relied on posttrial
calculations generated by the software program, and
not exclusively on the evidence submitted by the parties
at trial.’’ (Emphasis added.) The defendant does not
explain how the use of the software to assist with calcu-
lations constitutes outside ‘‘evidence,’’ and we con-
clude that the use of this software for calculations is
no more extra-evidentiary than would be the use of a
calculator, provided the data being input by the court
is based on the evidence or on matters for which the
court properly has taken judicial notice.
In Ferraro, which is the only case relied on by the
defendant to support his argument, the defendant hus-
band claimed that the court had made factual findings
regarding his net income without evidentiary support.
Ferraro v. Ferraro, supra, 168 Conn. App. 728. The
defendant husband contended that the trial court had
relied on information not found in the evidence, rather
than on the parties’ financial affidavits or other evidence
presented at trial, to determine his net income. Id. This
court stated it was ‘‘undisputed that the court relied
on the . . . worksheet [generated by the software] in
determining the weekly net incomes of the parties,’’
and that it was ‘‘evident . . . that the figures in the
worksheet [did] not match the figures provided by the
parties at trial.’’ Id., 729. Although this court recognized
that the trial court was permitted to take judicial notice
of certain supplemental information, such as the Inter-
nal Revenue Code or tax tables, it concluded that the
trial court should have notified the parties that it was
doing so, and it should have given them an opportunity
to be heard. Id., 731. Because the net income determina-
tion made by the trial court had no evidentiary basis,
the defendant was entitled to a new hearing. Id., 733.
After examining the record in the present case, we
conclude that there is an evidentiary basis for the
court’s net income findings, and, therefore, Ferraro is
distinguishable.
Here, the court explicitly found that for the first time
period (from March 1, 2012 to May 31, 2012) the defen-
dant’s weekly net income was $750, and the plaintiff’s
weekly net income was $1304. It stated that it based
those figures on documents, including the plaintiff’s
April 25, 2012 financial affidavit, the defendant’s 2012
tax forms, and the child support guidelines worksheet
prepared by the plaintiff’s attorney, which was provided
to the court without objection by the defendant. The
defendant does not explain why or how the net income
findings are incorrect or what the correct figures should
be. In fact, a close reading of his appellate brief reveals
no allegation that these figures are incorrect. Rather,
his argument is that because the court stated that it
could not recreate its worksheets because the software
had been updated, then the court, necessarily, must
have relied on outside evidence in determining the par-
ties’ net income. We do not agree.
All of the named documents on which the court stated
it relied, as well as many other financial documents, are
contained in the record. We thoroughly have reviewed
these documents and the entire evidentiary record, and,
on the basis of the evidence presented at trial, we con-
clude that the court’s findings as to net income have
an evidentiary basis, as demonstrated herein.
For the first time period, the court stated that it relied
on the plaintiff’s financial affidavit dated April 25, 2012,
the defendant’s nonwage income from his 2012 federal
tax return,11 specifically, the income shown on lines 8a,
9a, 10, 13, and 19, the defendant’s 2012 state tax return,
and a child support guidelines worksheet prepared by
the plaintiff’s counsel, as well as on other documents.
Line 19 of the defendant’s 2012 federal tax return shows
that he had income of $15,570 from unemployment.
Taking the $15,570 he earned for the first five months of
the year on unemployment compensation, and dividing
that by twenty-two weeks (January 1 through May 31,
2012), which is his entire time period of unemployment
in 2012, we arrive at an earnings from unemployment
compensation of $708 per week.
In addition to his unemployment income in the first
time period, line 8a of the defendant’s 2012 federal
tax return shows that the defendant earned $139 from
interest, line 9a shows that he earned $6263 from divi-
dends, line 10 shows $16,503 from the prior year’s tax
refund, and line 13 shows that he sustained a $3000
capital loss, for a total additional income of $19,905 in
2012. This additional income was earned over the
course of the entire year, not just in the first time period.
Taking the additional income of $19,905 and dividing
that by fifty-two weeks, we compute additional earnings
of $383 per week. Combining these two numbers ($708
plus $383), we arrive at the defendant’s gross weekly
income of $1091 for the first five months of 2012.
Line 44 of the defendant’s 2012 federal tax form
shows that he had a federal tax liability of $11,739, and
his state tax form shows a state tax liability of $5820,
which, combined, equals a 2012 tax liability of $17,559
or $338 per week. Deducting the $338 weekly tax liabil-
ity for 2012 from the weekly nonwage income for 2012
of $1091, we arrive at a net weekly income of $753.
Allowing for very minor rounding adjustments, this fig-
ure coincides with the finding of the trial court that the
defendant’s weekly net income for the first period was
$750. According, we conclude that the court’s finding
as to the defendant’s net weekly income for the first
time period has an evidentiary foundation.
As to the plaintiff’s net weekly income for the first
time period, the court found that her weekly net income
was $1304. It stated that it used, among other docu-
ments, the plaintiff’s financial affidavit and her child
support worksheet to arrive at this figure. The plaintiff’s
W-2 form for 2012 shows her gross income of $97,883.
It also shows that the plaintiff paid Medicare taxes of
$1419 and made mandatory pension contributions of
$7083. According to the plaintiff’s 2012 tax returns, she
had a federal tax liability of $12,270, and a state tax
liability of $4387. Using these figures, the plaintiff’s 2012
net income was $72,724. However, the undisputed evi-
dence also demonstrates that the plaintiff maintained
health insurance for herself and the parties’ minor chil-
dren, and although that amount is not readily available
for this time period, the court certainly had evidence
from other years to calculate a reasonable amount for
that deduction. Additionally, there was evidence that
the plaintiff paid union dues every year. Using the 2013
deduction of $3000 for health insurance and $768 for
union dues, the plaintiff’s approximate net income for
2012 was $68,956 or $1326 per week. Allowing for rea-
sonable differences in rounding, we conclude that the
court’s weekly net income finding of $1304 for the plain-
tiff for the first time period has an evidentiary basis.
As to the second time period, from June 1, 2012
through December 31, 2012, the court stated that it
based the plaintiff’s net income of $1304 per week,
and the defendant’s net income of $2981 per week on
documents including the plaintiff’s April 25, 2012 finan-
cial affidavit, the defendant’s income, as shown on lines
8a, 9a, 10, and 13 of his 2012 federal income tax return
and his 2012 state tax form, not including the $15,570
in unemployment income received early in the year
(line 19), and on the child support guidelines worksheet
prepared by the plaintiff’s counsel.
The defendant’s income for 2012, as shown on his
2012 federal tax return, excluding unemployment
income from line 19, as shown on the lines noted by
the trial court, is: line 7, $94,801; line 8a, $139; line 9a,
$6263; line 10, $16,503; and line 13, a capital loss of
$3000. Because the defendant was unemployed and col-
lecting unemployment compensation through the end
of the first period, May 31, 2012, we know that his
wage income of $94,801 was earned entirely during the
second time period, although the additional income of
$19,905, as calculated in our analysis of the first time
period, was earned throughout the entire year. Taking
the $94,801 and dividing it by the number of weeks
from June 1 through December 31, 2012, which is thirty,
we compute weekly gross wages of $3160. Adding to
that the weekly additional income as set forth in our
analysis of the first time period of $383 ($19,905 divided
by 52 equals $383), we compute a weekly gross income
of $3543 for the second time period.
Subtracting from that gross income figure of $3543,
the defendant’s federal and state 2012 weekly income
tax liability of $338, we arrive at $3205. Because the
second time period includes wages, rather than unem-
ployment compensation, we also must subtract the
amount withheld over those thirty weeks for social
security and Medicare taxes, which we find on the
defendant’s W-2 form, submitted into evidence as part
of the defendant’s exhibit 15 at trial, of $4175 and $1441,
respectively, for a total of $5616 or $187 per week over
the thirty weeks that he was employed in 2012. It also
is undisputed that the defendant made health insurance
payments when he was employed, and, although the
precise amount cannot be ascertained from the record,
the court reasonably could have used the figure from
2013 of $1711 per year, which equates to $33 per week.
Taking the $3205 (weekly gross income minus taxes)
and subtracting the additional deductions (social secu-
rity and Medicare taxes, and health insurance) of $220,
we arrive at a weekly net income of $2985. This weekly
net income figure is $4 higher than the court’s weekly
net income figure for the second period of $2981 and
easily can be attributed to differences in rounding.
Accordingly, we conclude that the court’s net income
finding for the defendant for the second time period
has an evidentiary basis.
As to the plaintiff’s weekly net income for the second
time period, the court found that her weekly net income
was $1304. This is exactly the same amount as for the
first time period, and our analysis of this amount
remains the same. Accordingly, we conclude that the
court’s weekly net income findings for the plaintiff for
the second time period have an evidentiary basis.
For the third time period, January 1, 2013 through
June 30, 2015, the court found that the plaintiff’s weekly
net income was $1400 per week, and the defendant’s
weekly net income was $3321 per week.12 The court
stated that it made these findings on the basis of docu-
ments, including the plaintiff’s April 29, 2015 financial
affidavit, the defendant’s April 28, 2015 financial affida-
vit, the defendant’s 2013 federal and state income tax
returns, and the May 1, 2015 child support guidelines
worksheet prepared by the plaintiff’s counsel.
The defendant’s 2013 W-2 and earnings summary
forms reveal employment income of $230,186. His fed-
eral tax return reveals interest of $566, dividend income
of $4835, a taxable refund of $2002, and a capital loss
of $3000, for an approximate gross income of $234,589;
his 2013 federal tax form also shows excess social secu-
rity tax withholdings of $4453, for a gross income of
$239,042. It also shows a federal tax liability of $37,922;
his state tax form reveals a state tax liability of $11,291;
his W-2 forms also reveal social security tax withhold-
ings of $11,502, Medicare tax withholdings of $3317,
and health insurance costs of $1711; this evidence dem-
onstrates that the defendant’s net income for 2013 was
$173,299 ($239,042 minus $65,743 [$37,922 plus $11,291
plus $11,502 plus $3317 plus $1711] equals $173,299).
On his April 28, 2015 financial affidavit, the defendant
certified that his gross income for 2014 was $205,805.
His W-2 form shows federal income withholdings of
$25,686, social security tax withholdings of $7254, Medi-
care tax withholdings of $2999, health insurance costs
of $1361, and state tax withholdings of $12,034. On the
basis of these figures, this evidence demonstrates that
the defendant’s approximate net income for 2014 was
$156,471.13
The defendant also certified that his then current
gross income (for 2015) was $4691 per week or $243,932
annually,14 that his weekly mandatory deductions were
$1358 or $70,616 per annum, and that his then current
weekly net income was $3333 or $173,316 per annum.
Averaging the net income amounts from 2013 through
2015 ($173,299 plus $156,471 plus $173,316 equals
$503,086; $503,086 divided by 3 equals $167,695), we
arrive at an average net income of $167,695 per annum
or $3225 per week, which is approximately $96 less
than the court’s weekly net income average of $3321.
In light of the evidence that the defendant had interest
and dividend income every year from 2009 through
2013, and that he consistently had overpaid his taxes,
we conclude that it would have been reasonable on the
basis of this evidence for the court to have attributed
approximately $96 per week in additional income to
the defendant. See footnote 13 of this opinion. Accord-
ingly, we conclude that there is an evidentiary basis to
support the court’s net income finding for the third
time period.
As to the plaintiff’s net weekly income for the third
time period, the court found that her weekly net income
was $1400. Her 2013 W-2 form shows that the plaintiff
had gross earnings of $102,397, that she paid Medicare
taxes of $1485, health insurance of $3000, union dues
of $768, and that she made mandatory pension contribu-
tions of $7291. Her 2013 federal tax return also shows
that the plaintiff had federal income tax liability of
$11,984 and state tax liability of $4481. This evidence
demonstrates that the plaintiff’s net income for 2013
was $73,388.
On her April 29, 2015 financial affidavit, the plaintiff
certified that her gross income for 2014 was $117,010,
but her December, 2014 paystub shows a year to date
gross income from employment of $118,510.15 The pay-
stub also shows Medicare taxes of $1601, health insur-
ance of $3150, union dues of $814, mandatory pension
contributions of $7094, federal income tax payments of
$15,456 and state tax payments of $5516. Using the
gross income from employment figure on the plaintiff’s
paystub, we conclude that the evidence demonstrates
that the plaintiff’s approximate net income for 2014
was $84,879.
The plaintiff also certified that her gross income for
2015 was $2011 per week, or $104,572 annually. She
averred that she had mandatory deductions of $688 per
week, or $35,776 per annum, giving her a weekly net
income of $1323 or $68,796 per annum for 2015. Averag-
ing these three years of net income ($73,388 plus $84,879
plus $68,796 equals $227,063; $227,063 divided by 3
equals $75,688), we conclude that the evidence demon-
strates that the plaintiff had an average annual net
income for the third time period of approximately
$75,688 or $1456 per week. We conclude that the differ-
ence of $56 between the court’s net income finding
of $1400 and our own calculation is de minimus and
certainly could be attributable to rounding adjustments.
Accordingly, the court’s net income finding for the
plaintiff for the third time period has evidentiary
support.
2
The defendant also claims that the court improperly
determined his child support, arrearage, and expense
obligations because it failed to give consideration to
his request for a deviation from the presumptive amount
of child support. He argues that he presented evidence
during the hearing to rebut the presumption that the
application of the guidelines was equitable and appro-
priate in this case, but that the court failed to consider
his request for a deviation. We are not persuaded.
‘‘The legislature has enacted several statutes to assist
courts in fashioning child support orders. . . . The leg-
islature also has provided [in General Statutes § 46b-
215a] for a commission to oversee the establishment
of child support guidelines, which must be updated
every four years, to ensure the appropriateness of child
support awards . . . . The guidelines provide a sched-
ule 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,
General Statutes § 46b-215b (a) provides in relevant
part: The child support and arrearage guidelines issued
pursuant 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.’’ (Citation omitted; internal quotation marks
omitted.) Battistotti v. Suzanne A., 182 Conn. App. 40,
46–47, 188 A.3d 798, cert. denied, 330 Conn. 904,
A.3d (2018).
Section 46b-215a-5c (b) of the Regulations of Con-
necticut State Agencies describes the criteria that may
justify a support order different from the presumptive
support amounts calculated under the child support
guidelines. Specifically, it provides as criteria for devia-
tion: (1) other financial resources available to a parent,
(2) extraordinary expenses for care and maintenance
of the child, (3) extraordinary parental expenses, (4)
needs of a parent’s other dependents, (5) coordination
of total family support, and (6) special circumstances.
The special circumstances deviation criterion in
§ 46b-215a-5c (b) (6) of the regulations provides the
following: ‘‘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:
‘‘(A) Shared physical custody. When a shared physical
custody arrangement exists, it may be appropriate to
deviate from presumptive support amounts when: (i)
such arrangement substantially . . . (I) reduces
expenses for the child, for the parent with the lower
net weekly income, or (II) increases expenses for the
child, for the parent with the higher net weekly income;
and (ii) sufficient funds remain for the parent receiving
support to meet the needs of the child after deviation;
or (iii) both parents have substantially equal income.
‘‘(B) Extraordinary disparity in parental income.
When the custodial parent has high income, resulting
in an extraordinary disparity between the parents’ net
incomes, it may be appropriate to deviate from pre-
sumptive support amounts if: (i) such deviation would
enhance the lower income parent’s ability to foster a
relationship with the child; and (ii) sufficient funds
remain for the parent receiving support to meet the
basic needs of the child after deviation.
‘‘(C) Total child support award exceeds 55 [percent]
of obligor’s net income.
If the total child support award exceeds 55 [percent]
of the obligor’s net income, it may be appropriate to
deviate downward on any components of the award
other than current support to reduce the total award
to not less than 55 [percent] of the obligor’s net income.
‘‘(D) Best interests of the child.
‘‘(E) Other equitable factors.’’ Regs., Conn. State
Agencies § 46b-215a-5c (b) (6). ‘‘[T]he decision whether
to deviate from the guidelines on the basis of [the crite-
ria] is left to the court’s sound discretion. . . . [A] trial
court’s decision not to deviate from the guidelines does
not, a fortiori, demonstrate a failure to consider that
criterion.’’ (Citation omitted; internal quotation marks
omitted.) Schoenborn v. Schoenborn, 144 Conn. App.
846, 858, 74 A.3d 482 (2013).
The defendant specifically contends that he ‘‘pre-
sented evidence and argued that a deviation was war-
ranted on the following grounds: the parties share
physical custody of the minor children; the needs of
the children were being met at the then current amount,
which amount was based on an agreed upon deviation
from the presumptive child support amount; the defen-
dant’s agreement in the [parties’ agreement] to under-
take to pay the children’s private educational expenses
through eighth grade (estimate to be $141,185); and the
defendant’s agreement in the [parties’ agreement] to
undertake to pay the bulk of the children’s expenses
(over $30,000, 75 [percent] on unreimbursed),’’ but that
the court failed to address his request for a deviation.
(Footnote omitted.)
Here, the defendant asserts that the court failed to
address his request for a deviation from the presumptive
child support amount even after he submitted evidence
and argued that he had established the shared physical
custody criterion for a deviation. On the basis of the
record, we are not persuaded that the court failed to
consider the defendant’s request for a deviation.
During closing argument on the motions heard by
the court, the defendant’s attorney fully explained to
the court the defendant’s request for a deviation; she
fully explained how the parties at the time of dissolution
had agreed to a deviation and why the defendant still
thought a deviation was warranted. This discussion was
extensive. During the discussion, the court also ques-
tioned the defendant’s attorney about the merits of this
request, and it commented extensively on the issue,
including stating that ‘‘[c]hildren have an absolute right
to child support’’ and that ‘‘the parties can agree to a
whole host of things from a property settlement, from
alimony, for a whole host of things. But, as far as the
child support is concerned, the parties are not in a
position to waive child support absent the court finding
that there is an appropriate deviation criteria.’’
Furthermore, after the court rendered its decision,
the defendant, in his motion to reargue, acknowledged
that the court specifically had recognized in its memo-
randum of decision that shared physical custody is a
deviation criterion, and he requested that the court per-
mit reargument on the matter and that it enter new
orders. On November 19, 2015, the court held a hearing
on this and other matters. During the hearing, the defen-
dant’s attorney argued that the court was required to
give an explanation of its reasons for either granting
or denying a requested deviation. Specifically, he
argued: ‘‘In the case law, I believe . . . if you ask for
a deviation, the court has to explain if they don’t give
you a deviation. [It must explain] [w]hy? And if they
do give you a deviation, [it must explain] [w]hy? But
in either [instance], there has to be some articulation,
the why you deviated or why you didn’t deviate.’’ After
hearing argument on the matter, the court agreed to
take a second look at the request. The court also stated,
and the parties agreed, that if the court found any merit
to the defendant’s request, it would permit further argu-
ment on it. On the basis of the foregoing, we conclude
that the record establishes that the court considered
the defendant’s request for a deviation. Accordingly,
the defendant’s claim fails.
3
The defendant claims that the court improperly deter-
mined his child support, arrearage, and expense obliga-
tions because the court modified, rather than clarified,
its decision in response to his motion for reargument
on his request for a deviation. The plaintiff responds
that the court’s corrected memorandum of decision was
in response to several motions that it heard, including
the defendant’s motion for reargument and the plain-
tiff’s motion to reconsider. She argues that the defen-
dant cannot complain because the court appropriately
responded to the parties’ motions, including the defen-
dant’s motion in which he specifically requested that the
court reconsider the defendant’s request for a deviation.
We agree with the plaintiff.
After the court issued its August 27, 2015 memoran-
dum of decision, the defendant, on September 16, 2015,
filed a motion to reargue. In that motion, the defendant
specifically stated that the court, although ‘‘men-
tion[ing] in its memorandum of decision that shared
custody is a deviation factor,’’ had failed to mention
that the parties, at the time of the dissolution, had
agreed to deviate from the child support guidelines.
The defendant then reiterated that a deviation was war-
ranted on the basis of the parties’ shared physical cus-
tody agreement, and he asked the court to permit
reargument on the matter and that it enter new orders.
As we explained in part II A 2 of this opinion, during
the hearing, the defendant’s attorney specifically
argued: ‘‘In the case law, I believe . . . if you ask for
a deviation, the court has to explain if they don’t give
you a deviation. [It must explain] [w]hy? And if they
do give you a deviation, [it must explain] [w]hy? But
in either [instance], there has to be some articulation,
the why you deviated or why you didn’t deviate.’’
Thereafter, the court considered the issues raised
and submitted a corrected memorandum of decision
in which it stated, in relevant part, that it would be
‘‘equitable and appropriate not to deviate from the child
support guidelines’’ in this case. (Emphasis added.) In
light of the defendant’s request that the court permit
reargument and issue new orders, and his insistence
that the court explain its reasons for either granting
or denying a deviation, we conclude that the court’s
response was appropriate. Accordingly, we are not per-
suaded by the defendant’s argument.
4
The defendant also claims that the court improperly
determined his child support, arrearage, and expense
obligations by abusing its discretion when it determined
that it was equitable and appropriate not to deviate
from the child support guidelines. He argues that the
parties’ agreement, as incorporated into the judgment of
dissolution, regarding the ‘‘shared custody arrangement
and the defendant’s financial concession pertaining to
the children were made [on the basis of] there being
a deviation from the presumptive support until such
obligation terminated under their agreement,’’ and,
therefore, the court should not have denied the request
for a continued deviation. (Emphasis in original.) He
further contends that the plaintiff, herself, recom-
mended an amount of child support that was in devia-
tion from the presumptive amount, and that there is
‘‘no support in the record for the trial court to have
denied the request for deviation . . . .’’ The plaintiff
responds that the record of the dissolution canvass
clearly demonstrates that the ‘‘financial concessions’’
made by the defendant were ‘‘made to induce the plain-
tiff to waive alimony, not deviate child support.’’16 She
argues that the court properly exercised its discretion
in this matter. We agree that the court properly exer-
cised its discretion.
‘‘[A] court may deviate from the presumptive amount
of child [support] if the procedures outlined in § 46b-
215a-5c of the regulations are followed. Notably, an
agreement may provide a sufficient basis for a deviation
when the agreement cites deviation criteria; the pre-
sumptive amount also ‘may be rebutted by a specific
finding on the record that such amount would be inequi-
table or inappropriate in a particular case.’ Regs., Conn.
State Agencies § 46b-215a-5c (a).’’ Robinson v. Rob-
inson, 172 Conn. App. 393, 403, 160 A.3d 376, cert.
denied 326 Conn. 921, 169 A.3d 233 (2017). ‘‘[O]nce the
court enters an order of child support that substantially
deviates from the guidelines, and makes a specific find-
ing that the application of the amount contained in the
guidelines would be inequitable or inappropriate, as
determined by the application of the deviation criteria
established in the guidelines, that particular order is no
longer modifiable solely on the ground that it substan-
tially deviates from the guidelines. . . . Rather, the
party seeking modification must instead show that
maintaining a child support order that deviates from
the child support guidelines is inequitable or inappropri-
ate as a result of a substantial change in circumstances.’’
(Citation omitted; internal quotation marks omitted.)
Budrawich v. Budrawich, 156 Conn. App. 628, 642–43,
115 A.3d 39, cert. denied, 317 Conn. 921, 118 A.3d 63
(2015). ‘‘In determining whether a trial court has abused
its broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action.’’ (Internal quotation marks
omitted.) Battistotti v. Suzanne A., supra, 182 Conn.
App. 44.
In the present case, the court specifically found that a
deviation from the presumptive amount of child support
would be inappropriate and inequitable. The defendant
contends that he was entitled to a continued deviation
because he had agreed to assume the costs of the chil-
dren’s private education through eighth grade in light
of this deviation and that this was in the parties’ shared
physical custody agreement at the time of the dissolu-
tion. He contends that the trial court ‘‘in a rather rogue
fashion, decided sua sponte to undo the mosaic of the
parties’ stipulated judgment and upset the very deli-
cately balanced and carefully negotiated terms of the
parties’ stipulated agreement [at the time of the disso-
lution].’’
We have reviewed the record and, although the disso-
lution court found the parties agreement to be fair and
equitable, it did not make a finding on the record that
the application of the guidelines would be inequitable
or inappropriate at the time it rendered judgment incor-
porating the parties’ agreement. See Righi v. Righi,
supra, 172 Conn. App. 441 (rejecting plaintiff’s claim
that trial court necessarily found application of guide-
lines to be inequitable or inappropriate because it found
parties’ agreement, which included agreement to devi-
ate from guidelines, fair and equitable); see generally
McHugh v. McHugh, 27 Conn. App. 724, 728–29, 609
A.2d 250 (1992) (‘‘[O]nce the court enters an order of
child support that substantially deviates from the guide-
lines, and makes a specific finding that the application
of the amount contained in the guidelines would be
inequitable or inappropriate . . . that particular order
is no longer modifiable solely on the ground that it
substantially deviates from the guidelines. By the same
token, in the absence of such a specific finding, the
order is continually subject to modification on the
ground of a substantial deviation from the guidelines.’’
[Footnote omitted.]). In the absence of such a finding
by the dissolution court in this case, we conclude that
the trial court had the discretion to consider the ques-
tion of a modification of child support anew, in accor-
dance with the guidelines.
The court, after finding a substantial change in cir-
cumstances, which change is not disputed by the par-
ties, examined the record, considered the evidence, and
considered the defendant’s request for a deviation from
the presumptive amount of child support. Finding that
such a deviation would be inappropriate and inequita-
ble, and that it would leave the plaintiff with insufficient
funds to meet the needs of the children, the court prop-
erly exercised its discretion and denied the request.
B
The defendant next claims that the court abused its
discretion by awarding the plaintiff $50,000 for attor-
ney’s fees pursuant to paragraph 10.3 of the parties’
agreement.17 The defendant argues that ‘‘[t]he underpin-
ning for the award is that the trial court determined the
defendant breached [paragraph 5.1 of] the separation
agreement. . . . As a result of this alleged breach, the
trial court awarded counsel fees . . . .’’ (Citations
omitted.) He contends, however, that he did not breach
the agreement and that the court’s construction of para-
graph 5.1 of the agreement ‘‘was not reasonable.’’ Hav-
ing concluded in part I of this opinion that the defendant
was in contempt for breaching paragraph 5.1 of the
parties’ agreement, which had been incorporated into
the judgment of dissolution, we conclude that this claim
is without merit.18
Article 10.3 of the parties’ agreement provides in rele-
vant part: ‘‘In the event that it shall be determined by
a court of competent jurisdiction that either party shall
have breached any of the provisions of this Agreement
or of any court decree . . . and regardless of whether
the party is adjudicated in contempt, the offending party
shall pay to the other party reasonable attorneys’ fees,
court costs and other expenses incurred in the enforce-
ment of the provisions of this Agreement . . . .’’ Pursu-
ant to article 10.3, the trial court awarded the plaintiff
$50,000 for attorney’s fees. The defendant now chal-
lenges that award as an abuse of the court’s discretion.19
We set forth the standard of review and applicable
legal principles for this claim. ‘‘The abuse of discretion
standard of review applies when reviewing a trial
court’s decision to [grant or] deny an award of attor-
ney’s fees. . . . Under the abuse of discretion standard
of review, [w]e will make every reasonable presumption
in favor of upholding the trial court’s ruling, and only
upset it for a manifest abuse of discretion. . . . [Thus,
our] review of such rulings is limited to the questions
of whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Citations omitted; internal quotation marks omit-
ted.) Munro v. Munoz, 146 Conn. App. 853, 858, 81
A.3d 252 (2013). ‘‘The general rule of law known as
the American rule is that attorney’s fees and ordinary
expenses and burdens of litigation are not allowed to
the successful party absent a contractual or statutory
exception. . . . This rule is generally followed
throughout the country. . . . Connecticut adheres to
the American rule. . . . There are few exceptions. For
example, a specific contractual term may provide for
the recovery of attorney’s fees and costs . . . or a stat-
ute may confer such rights.’’ (Internal quotation marks
omitted.) Giordano v. Giordano, 153 Conn. App. 343,
352–53, 101 A.3d 327 (2014).
‘‘General Statutes § 46b-87 grants the court the discre-
tion to award attorney’s fees to the prevailing party in
a contempt proceeding. The award of attorney’s fees
in contempt proceedings is within the discretion of the
court.’’ (Footnotes omitted; internal quotation marks
omitted.) Malpeso v. Malpeso, 165 Conn. App. 151, 184,
138 A.3d 1069 (2016). ‘‘[T]he award of attorney’s fees
pursuant to § 46b-87 is punitive, rather than compensa-
tory . . . .’’ (Internal quotation marks omitted.) Allen
v. Allen, 134 Conn. App. 486, 503, 39 A.3d 1190 (2012).
Additionally, where the parties, in their agreement, have
provided for the payment of counsel fees in the event
one party is in breach of the agreement, it is proper for
the court to rely on the attorney’s fee provision of that
agreement, even if it declines to find a party in con-
tempt. Goold v. Goold, 11 Conn. App. 268, 288–89, 527
A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156
(1987). ‘‘[A] contract clause providing for reimburse-
ment of incurred [attorney’s] fees permits recovery
upon the presentation of an attorney’s bill, so long as
that bill is not unreasonable upon its face and has not
been shown to be unreasonable by countervailing evi-
dence or by the exercise of the trier’s own expert judg-
ment.’’ (Internal quotation marks omitted.) Storm
Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440
A.2d 306 (1982).
In the present case, the parties’ agreement provides
for the payment of attorney’s fees in the event that a
court determines ‘‘that either party shall have breached
any of the provisions of this Agreement or of any court
decree . . . and regardless of whether the party is
adjudicated in contempt . . . .’’ The parties’
agreement, therefore, authorizes the court to award
attorney’s fees when one of the parties is in breach of
the agreement.
As set forth in part I of this opinion, the court found
that the defendant had breached paragraph 5.1 of the
agreement. This finding amply is supported by the evi-
dence that the defendant breached the clear terms of
the agreement and engaged in self-help. Accordingly,
the court did not abuse its discretion in awarding the
plaintiff $50,000 in attorney’s fees.
C
The defendant next claims that the court abused its
discretion in declining to hold the plaintiff in contempt
for violating paragraph 11.1 of the parties’ agreement
on the basis of ambiguity in the language. He contends
that the language is not ambiguous, and, even if an
ambiguity exists, the court improperly failed to resolve
the ambiguity through a determination of the parties’
intent before finding that he failed to meet his burden.
We are not persuaded.
The following additional facts inform our review. The
defendant filed a motion for contempt on December 9,
2013, alleging that the plaintiff had violated paragraph
11.1 of the parties’ agreement by claiming the real estate
taxes for the marital residence as a deduction on her
2009 income tax return. That provision provides: ‘‘The
parties shall file separate federal and state income tax
returns for the calendar year 2009 however, the parties
agree to file joint tax returns for 2006, 2007 and 2008
and will split equally all refunds. The parties shall be
entitled to claim the mortgage interest and real property
tax deductions with respect to the marital residence
for calendar year 2009 to the extent that each party has
paid the mortgage and/or real estate taxes. The parties
acknowledge that the [defendant] made said payments
for 2009.’’
The court specifically found that paragraph 11.1 was
ambiguous, and that the defendant had failed to prove
by clear and convincing evidence that the plaintiff wil-
fully had violated the provision. In so concluding, the
court reasoned, ‘‘[o]n the one hand, by the terms of the
[agreement], each party is entitled to claim a portion
of mortgage and taxes in 2009, and, yet, the wording
also seemingly allows the [defendant] to take all.’’ We
agree with the court that paragraph 11.1 is ambiguous.
As set forth in part I of this opinion: ‘‘Contempt is a
disobedience to the rules and orders of a court which
has power to punish for such an offense. . . . A con-
tempt judgment cannot stand when, inter alia, the order
a contemnor is held to have violated is vague and indefi-
nite, or when the contemnor, through no fault of his
own, was unable to obey the court’s order. . . .
‘‘Consistent with the foregoing, when we review such
a judgment, we first consider the threshold question of
whether the underlying order constituted a court order
that was sufficiently clear and unambiguous so as to
support a judgment of contempt. . . . This is a legal
inquiry subject to de novo review.’’ (Internal quotation
marks omitted.) Hirschfeld v. Machinist, supra, 181
Conn. App. 318.
‘‘Contract language is unambiguous when it has a
definite and precise meaning . . . concerning which
there is no reasonable basis for a difference of opinion
. . . . In contrast, an agreement is ambiguous when its
language is reasonably susceptible of more than one
interpretation.’’ (Internal quotation marks omitted.)
McTiernan v. McTiernan, 164 Conn. App. 805, 825, 138
A.3d 935 (2016). However, ‘‘any ambiguity in a contract
must emanate from the language used in the contract
rather than from one party’s subjective perception of
the terms. . . . [T]he mere fact that the parties advance
different interpretations of the language in question
does not necessitate a conclusion that the language is
ambiguous.’’ (Internal quotation marks omitted.) Celini
v. Celini, 115 Conn. App. 371, 377, 973 A.2d 664 (2009).
The relevant portion of paragraph 11.1 provides: ‘‘The
parties shall be entitled to claim the mortgage interest
and real property tax deductions with respect to the
marital residence for calendar year 2009 to the extent
that each party has paid the mortgage and/or real estate
taxes. The parties acknowledge that the [defendant]
made said payments for 2009.’’ We conclude that this
language is confusing, leading to ambiguity.
This provision states, in relevant part, that each party
is entitled to claim a deduction to the extent that each
party has paid the mortgage and/or the real estate taxes
for 2009. The provision then contains an acknowledge-
ment that the defendant made such payments in 2009.
The provision, however, does not state that the plaintiff
made no such payments or that the defendant exclu-
sively made such payments. In fact, if this provision
were meant to convey that the defendant was the only
party to have made such payments in 2009, and the
provision specifically applies only to 2009, then we
question why the provision also specifically allows each
party to claim the deduction for 2009 to the extent of
what each party paid. Nevertheless, we recognize that
the provision does contain an acknowledgement that
the defendant made such payments while not acknowl-
edging that the plaintiff also made such payments.
Accordingly, we agree with the trial court that the provi-
sion is ambiguous.
The defendant also contends that even if this lan-
guage is ambiguous, the court also should have con-
strued the agreement by determining the intent of the
parties. We conclude that because the court found that,
to the extent that the plaintiff may have breached para-
graph 11.1, her breach was not wilful but was based
on a good faith misunderstanding of the ambiguous
provision, the court had no need to further interpret
the provision. See Parisi v. Parisi, 315 Conn. 370, 379,
107 A.3d 920 (2015) (‘‘[a] contempt judgment cannot
stand when, inter alia, the order a contemnor is held
to have violated is vague and indefinite’’).
During trial, the plaintiff testified regarding her prepa-
ration of her income tax return for 2009. She confirmed
that her income contributed to one third of the marital
expenses during 2009, that the parties were living
together in the marital residence for the entirety of
2009, and that it was not her intention to violate the
court’s order. The court, obviously, credited this testi-
mony when it concluded that the defendant had not
met his burden to demonstrate that the plaintiff wilfully
breached a clear and unambiguous order of the court.
We conclude that the court did not abuse its discretion
in declining to find the plaintiff in contempt on the basis
of an ambiguous provision of which the defendant failed
to establish, by clear and convincing evidence, a wil-
ful breach.
D
The defendant’s final claim is that the court abused
its discretion when it held him in contempt for failing
to make certain payments of child support during the
months of May through August, 2015, while the parties
were awaiting the court’s decision on their postjudg-
ment motions. We are not persuaded.
On May 6, 2015, evidence closed in the hearing on
the parties’ numerous posttrial motions. Approximately
two months later, on June 29, 2015, the plaintiff filed
a motion for contempt alleging that the defendant had
failed to pay any child support since the close of evi-
dence. This motion and others were heard by the court
on November 19, 2015. In finding the defendant in con-
tempt for failing to make child support payments from
May through August, 2015, the court found that ‘‘there
was no effort between . . . basically the beginning of
May . . . through the end of August . . . . And that
strikes me as, again, clear and unequivocal order of the
court. There’s no question. There’s no evidence that he
paid during those months. And there was no reason not
to pay, and I think that’s clear and unequivocal evidence,
and I’m going to so find that he is in wilful contempt
of a clear and unequivocal order of the court.’’ The
defendant claims this was error.
‘‘[W]e first consider the threshold question of whether
the underlying order constituted a court order that was
sufficiently clear and unambiguous so as to support a
judgment of contempt. . . . This is a legal inquiry sub-
ject to de novo review. . . . Second, if we conclude
that the underlying court order was sufficiently clear
and unambiguous, we must then determine whether the
trial court abused its discretion in issuing, or refusing
to issue, a judgment of contempt, which includes a
review of the trial court’s determination of whether the
violation was wilful or excused by a good faith dispute
or misunderstanding.’’ (Citations omitted; internal quo-
tation marks omitted.) Parisi v. Parisi, supra, 315
Conn. 380.
As to the first prong of our analysis, the record and
our analysis in part I of this opinion make it clear that
the orders that underlie the plaintiff’s motion for con-
tempt were clear and unambiguous. We need not dis-
cuss this prong further.
As to the second prong of our analysis, the record
amply supports the court’s finding that the defendant’s
failure to abide by the court’s order was wilful. This is
especially true in light of the court’s admonition during
the hearing, specifically on April 29, 2015, that ‘‘the
order is the order until [it is] changed,’’ that it was ‘‘a
continuing obligation,’’ that ‘‘[it is] incumbent upon the
obligor . . . to come back to court,’’ and that a person
who engages in self-help acts at his own peril.
As stated previously in this opinion, our law is clear:
‘‘An order of the court must be obeyed until it has
been modified or successfully challenged.’’ (Internal
quotation marks omitted.) Eldridge v. Eldridge, supra,
244 Conn. 530. ‘‘[O]ur Supreme Court [has] stated that
[a]lthough one party may believe that his or her situa-
tion satisfies [the] standard [of changed circumstance],
until a motion is brought to and is granted by the court,
that party may be held in contempt in the discretion
of the trial court if, in the interim, the complaining
party fails to abide by the support order.’’ (Emphasis
in original; internal quotation marks omitted.) Nunez
v. Nunez, 85 Conn. App. 735, 739–40, 858 A.2d 873
(2004); see also Eldridge v. Eldridge, supra, 531–32
(good faith belief that party was justified in suspending
alimony payment did not preclude finding of
contempt).
On the basis of the record before us, we conclude
that it is undisputed that the defendant failed to pay
any amount of child support for the months of May
through August, 2015. As a result of the defendant’s
unilateral decision to stop paying child support during
this time, it was not an abuse of discretion for the court
to find the defendant in wilful contempt.
The judgment is reversed as to the denial of the plain-
tiff’s motion for contempt, number 157, and the case
is remanded with direction to grant the plaintiff’s
motion and for consideration of appropriate sanctions,
if any; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Paragraph 5.1 of the agreement provides in relevant part that ‘‘the Hus-
band shall during his lifetime pay the Wife the sum of $260.00 per week as
and for child support pursuant to the child support guidelines [provided he
is employed at the rate of Two Hundred and Five Thousand ($205,000.00)
Dollars per year.] The Husband’s obligation with respect to each child shall
terminate when the child attains age eighteen . . . .’’
2
Although the dissolution court found that the parties’ agreement was
fair and equitable, the record contains no indication that the court also
made a finding that the application of the guidelines would be inequitable
or inappropriate.
3
On February 9, 2012, the plaintiff filed another motion for contempt and
a motion for counsel fees, and, on April 4, 2012, she filed a motion seeking
the appointment of counsel for the minor children. On April 5, 2012, the
defendant filed a motion requesting that the court order the plaintiff to
undergo a psychological examination. On April 9, 2012, the plaintiff filed a
motion for modification of legal and physical custody of the minor children.
Most of these motions were marked off between April and June, 2012. On
April 23, 2012, however, the parties did enter into a stipulated agreement
regarding the appointment of counsel for the minor children, wherein they
agreed to share the cost. There is no indication in the record, however, that
counsel appeared on behalf of the children.
4
Page two of this motion, which contains the grounds thereof, is missing
from the trial court file. The plaintiff, however, has included a copy of all
three pages of the motion in the appendix to her appellate brief.
5
This motion is docketed as a motion for contempt. The motion itself,
however, is titled as a motion for order, and the defendant did not request
in this motion that the plaintiff be found in contempt. Rather, he requested
that the court order her to comply with the parties’ agreement.
6
The parties filed several additional motions throughout 2013, 2014, and
2015, some of which were heard and decided at various times, and some
of which were marked off. These additional motions are not relevant to our
analysis of the issues presented in this appeal or cross appeal.
7
This motion is titled a motion for fees. On the docket sheet, however,
it is listed as a motion for order postjudgment.
8
The trial court opined, and the parties do not disagree, that this is a
typographical error and that it is should say age nineteen (19), in order to
comply with General Statutes § 46b-84 (b), which provides in relevant part:
‘‘If there is an unmarried child of the marriage who has attained the age of
eighteen and is a full-time high school student, the parents shall maintain
the child according to their respective abilities if the child is in need of
maintenance until such child completes the twelfth grade or attains the age
of nineteen, whichever occurs first.’’
9
The defendant testified that he hired Karlene Mitchell, a financial advisor,
in late December, 2014, to assist him in recalculating his child support
obligation. The defendant further testified: ‘‘My instructions to her [were]
to take all of the . . . financial information on myself, and what sketchy
information we had on the plaintiff, and to run child support numbers.’’ The
defendant called Mitchell to testify on his behalf, and she stated that she
replicated the methodology employed by the parties in negotiating the 2010
agreement in conjunction with the software to calculate the child support
guidelines for each time period where the defendant altered his child sup-
port payments.
10
During the hearing on the motions, the plaintiff’s attorney asked the
defendant: ‘‘You didn’t pay any child support for 2012, correct?’’ The defen-
dant responded: ‘‘That’s correct.’’ Counsel then asked: ‘‘Then, [you] reduced
[your payments] between 2013 and the present to $196, $167, $137, correct?’’
To which the defendant responded: ‘‘Yes.’’
11
The court specifically stated that it did not include the defendant’s
2012 wages of $94,801 in its calculations for the first period because the
defendant’s employment did not commence until after the first period.
12
In its memorandum of decision, the court stated that the defendant, in
his April, 2015 financial affidavit averred that he earns $178,984 per year
from employment. We are mindful that this figure is before the defendant’s
corporate bonus of approximately $65,000, which the defendant specifically
listed on his financial affidavit when calculating his gross income of $4691
per week or $243,932 per annum. The court also stated that the plaintiff
averred in her affidavit that her gross income from wages is $104,572. In
addition, the plaintiff incorrectly added child support income from the defen-
dant in the amount of $137 per week or $7124 per annum when she calculated
her total gross income as $111,696.
13
There is no tax return in the record for either party for 2014. Although
the defendant certified on his financial affidavit that he had gross income
for 2014 in the amount of $205,805, his W-2 and earnings summary for 2014
provides that his gross pay was $205,805. This amount does not include
any taxable interest or dividends, however. On the basis of the tax returns
in the record, the trial court reasonably could have concluded that the
defendant’s actual gross income was higher than that which he certified.
The record contains tax returns for the defendant for each year from 2009
through 2013. On those returns, the defendant showed taxable interest and
dividends of: $13,285 and $7656 in 2009; $2434 and $7771 in 2010; $739 and
$8027 in 2011; $139 and $6263 in 2012; and $566 and $4835 in 2013, respec-
tively. He also showed an overpayment of his tax liabilities every year:
federal overpayment of $3259, state underpayment of $365 in 2009; federal
overpayment of $11,403, Connecticut state underpayment of $139, New York
state overpayment of $212 in 2010; federal overpayment of $16,396, state
overpayment of $3471 in 2011; federal overpayment of $9365, state overpay-
ment of $1068 in 2012; and federal overpayment of $9576, state overpayment
of $797 in 2013. On the basis of this evidence, the court reasonably could
have attributed interest and dividend income to the defendant, as well as
tax overpayments.
In addition to the gross wages of $205,805 listed on the defendant’s W-2
form, the form also lists federal income tax withholdings of $25,686, social
security tax withholdings of $7254, Medicare tax withholdings of $2999, and
state income tax withholdings of $12,034 (totaling $47,973), which gives us
an approximate net income of $157,832 for 2014, but which may be lower
than the actual net income because it does not include taxable interest and
dividend income, and it may include overpayments of federal and state
income taxes.
14
Similar to the certification of the defendant’s 2014 gross income as
explained in footnote 13 of this opinion, the certification of $4691 as the
defendant’s weekly gross income for 2015 does not include taxable interest
or dividends.
15
As stated in footnote 13 of this opinion, the record does not contain a
2014 tax return for either party.
16
The transcript from the dissolution hearing is in the appellate record.
During the hearing, the defendant’s attorney offered an explanation of the
defendant’s agreement to pay the children’s private education expenses
through eighth grade: ‘‘[A]lthough [the defendant] believe[d] [the parties’
prenuptial agreement was] enforceable . . . because of the children, he
would work out this agreement whereby if there was no alimony . . . the
tradeoff was these lump sums and the fact that he would guarantee that
[the children’s] eighth grade—up through eighth grade education in private
school where they are now, which he’ll assume, and then high school based
on his options.’’ The court then asked: ‘‘You mean the trade off for no
alimony?’’ The defendant’s attorney responded: ‘‘That’s right.’’
17
The defendant also argues that the court abused its discretion in award-
ing the plaintiff attorney’s fees on the basis of General Statutes § 46b-62.
Because we conclude that the court properly awarded attorney’s fees for
the defendant’s breach of the parties’ agreement, we need not consider
this argument.
18
We also are mindful that General Statutes § 46b-87 grants the court the
discretion to award attorney’s fees to the prevailing party in a contempt
proceeding. Because the court awarded the plaintiff attorney’s fees under
paragraph 10.3 of the parties’ agreement, we consider whether that was an
abuse of discretion.
19
The defendant does not challenge the reasonableness of the fees.