Keusch v. Keusch , 184 Conn. App. 822 ( 2018 )

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LISA KEUSCH v. KENNETH KEUSCH
(AC 39395)
Sheldon, Elgo and Stevens, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and awarding the plaintiff alimony
and child support. Held:
1. The trial court erroneously computed the defendant’s presumptive mini-
mum child support obligation: that court erred in calculating child sup-
port on the basis of the defendant’s earning capacity, which may be
used as a deviation criterion but should not be used to determine the
presumptive support amount itself, without first determining the defen-
dant’s actual income and using that determination to state the presump-
tive support amount under the child support guidelines, and that court
also erred by failing to make a finding that application of the guidelines
would be inequitable or inappropriate, as required by the relevant state
regulation (§ 46b-215a-5c [a]); moreover, although the error pertained
only to the trial court’s determination of child support, the proper remedy
for the trial court’s errors with respect to its financial orders was to
remand the matter to that court for reconsideration of all of its finan-
cial orders.
2. The trial court abused its discretion by ordering the defendant to pay
nonmodifiable unallocated alimony and child support; that court’s order
provided that the duration and the amount of alimony and support to
be paid by the defendant were nonmodifiable by either party, which
improperly precluded reductions based on each child attaining the age
of majority, as the parties had three children and the result of that order
was that the defendant would be unable to seek modification as each
child attained the age of majority, even though the obligation of a parent
to support a child terminates when a child attains that age.
Argued January 2—officially released September 18, 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, Tin-
dill, J.; judgment dissolving the marriage and granting
certain other relief, from which the defendant appealed
to this court; thereafter, the court, Tindill, J., denied
the defendant’s motion for articulation; subsequently,
this court granted the defendant’s motion for review
but denied the relief requested; thereafter, the court,
Tindill, J., issued an articulation of its decision.
Reversed in part; further proceedings.
Gaetano Ferro, with whom, on the brief, was Olivia
M. Hebenstreit, for the appellant (defendant).
Yakov Pyetranker, for the appellee (plaintiff).
Opinion
STEVENS, J. The defendant, Kenneth Keusch,
appeals from the judgment of the trial court dissolving
his marriage to the plaintiff, Lisa Keusch, and entering
related financial orders. On appeal, the defendant
claims that the trial court (1) erroneously computed
his presumptive minimum child support obligation and
(2) abused its discretion by ordering the defendant to
pay nonmodifiable unallocated alimony and support.1
We agree with the defendant and, accordingly, we
reverse in part the judgment of the trial court.
The following facts, as found by the trial court, and
procedural history are relevant to our consideration
of the issues raised on appeal. The plaintiff and the
defendant were married on July 19, 1997. They are the
parents of three minor children. By complaint dated
February 26, 2014, the plaintiff sought, inter alia, disso-
lution of the parties’ marriage, custody of the minor
children, and temporary and permanent alimony and
child support. On June 21, 2016, following a trial over
several days on financial and property issues, the court
dissolved the parties’ marriage. In its memorandum of
decision, the court ordered, inter alia, that the defen-
dant pay unallocated alimony and support to the plain-
tiff in the amount of $12,500 per month ‘‘until the death
of either party, the [p]laintiff’s remarriage, or November
3, 2025, whichever shall occur first.’’2 The duration and
the amount to be paid were nonmodifiable by either
party. The court indicated that it was deviating from
the child support guidelines’ (guidelines) presumptive
support amount of $752 per week ‘‘based on the extraor-
dinary disparity in income and the provision of ali-
mony.’’ The defendant then filed the present appeal.
Before addressing the merits of the defendant’s
claims, we first set forth the applicable standard of
review in domestic relations matters. ‘‘[T]his court will
not disturb trial court orders unless the trial court has
abused its legal discretion or its findings have no reason-
able basis in the facts. . . . As has often been
explained, the foundation for this standard is that the
trial court is in a clearly advantageous position to assess
the personal factors significant to a domestic relations
case. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Notwithstanding
the great deference accorded the trial court in dissolu-
tion proceedings, a trial court’s ruling . . . may be
reversed if, in the exercise of its discretion, the trial
court applies the wrong standard of law.’’ (Internal quo-
tation marks omitted.) LeSueur v. LeSueur, 172 Conn.
App. 767, 774, 162 A.3d 32 (2017).
‘‘Individual financial orders in a dissolution action
are part of the carefully crafted mosaic that comprises
the entire asset reallocation plan. . . . Under the
mosaic doctrine, financial orders should not be viewed
as a collection of single disconnected occurrences, but
rather as a seamless collection of interdependent ele-
ments. Consistent with that approach, our courts have
utilized the mosaic doctrine as a remedial device that
allows reviewing courts to remand cases for reconsider-
ation of all financial orders even though the review
process might reveal a flaw only in the alimony, prop-
erty distribution or child support awards.’’ (Internal
quotation marks omitted.) Barcelo v. Barcelo, 158 Conn.
App. 201, 226, 118 A.3d 657, cert. denied, 319 Conn. 910,
123 A.3d 882 (2015).
Guided by these principles, we will address the defen-
dant’s claims on appeal.
I
We first consider the defendant’s claim that the court
erroneously computed his minimum child support obli-
gation. Specifically, the defendant argues that the court
erred in calculating his presumptive child support obli-
gation on the basis of his earning capacity rather than
his actual earnings. He contends that the court did not
calculate the amount of child support that would have
been required based upon actual income, nor did it
make a finding that application of the guidelines would
be inequitable. We agree.
The following additional facts are necessary for the
resolution of this issue. In its initial memorandum of
decision, the court ordered the defendant to pay $12,500
to the plaintiff each month as unallocated alimony and
support.3 The court did not indicate whether this award
was based on the defendant’s actual earnings or earning
capacity. The court attached a worksheet for the Con-
necticut Child Support and Arrearage Guidelines (work-
sheet), prepared by the Connecticut Judicial Branch, to
its memorandum of decision. The worksheet indicated
that the defendant’s gross weekly income was $5288,
or approximately $275,000 per year, and his net weekly
income was $3392, or $176,384 per year. On December
6, 2016, the defendant filed a motion for articulation
asking the court to articulate, inter alia, the bases on
which the court completed the worksheet. Specifically,
the defendant asked the court to articulate the factual
basis on which it determined that his gross weekly
income was $5288, the factual basis for each deduction
from gross weekly income and the factual basis for its
determination that his net weekly income was $3392.
The court denied the motion, and the defendant filed
a motion for review. This court thereafter granted
review but denied the requested relief.
In his principal appellate brief, the defendant argued
that the court’s erroneous calculation of his gross and
net income lacked evidentiary support. In response, the
plaintiff argued that the court’s income findings were
not based on the defendant’s actual income, but were
based on his earning capacity, and that these findings
were supported by the record. At oral argument before
this court, we questioned both sides regarding whether
the trial court’s financial award was based on the defen-
dant’s actual earnings or earning capacity. Following
oral argument, we ordered the court to articulate
whether the finding of weekly gross income of $5288,
as recorded on the worksheet, represented a finding as
to the defendant’s actual income or the earning capacity
and the factual basis for that finding.4 In its articulation,
the court indicated that the gross weekly income
amount of $5288 reflected on the worksheet repre-
sented the defendant’s earning capacity.5
Section 46b-215a-5c (a) of the Regulations of Con-
necticut State Agencies provides in relevant part that
‘‘[t]he current support . . . amounts calculated under
[the regulations] . . . are presumed to be the correct
amounts to be ordered. The presumption regarding
each such amount may be rebutted by a specific finding
on the record that such amount would be inequitable
or inappropriate in a particular case. . . . Any such
finding shall state the amount that would have been
required under such sections and include a factual find-
ing to justify the variance. Only the deviation criteria
stated in . . . this section, and indicated by the check
boxes in section VIII of the worksheet, shall establish
sufficient bases for such findings.’’ ‘‘Earning capacity
is . . . found among the criteria for deviation from pre-
sumptive support amounts, as a type of financial
[resource] that [is] not included in the definition of net
income, but could be used by such parent for the benefit
of the child or for meeting the needs of the parent.’’
(Internal quotation marks omitted.) Battistotti v.
Suzanne A., 182 Conn. App. 40, 52 n.8, A.3d
(2018).
In Fox v. Fox, 152 Conn. App. 611, 632, 99 A.3d 1206,
cert. denied, 314 Conn. 945, 103 A.3d 977 (2014), this
court held that the trial court erred in determining the
defendant’s modified child support obligation because
it based its calculations on the defendant’s imputed
income and not on his actual income and the minor
children’s demonstrated needs. ‘‘Under the guidelines,
the child support obligation first is determined without
reference to earning capacity, and earning capacity
becomes relevant only if a deviation from the guidelines
is sought’’ under § 46b-215a-5c (b) (1) (B) of the Regula-
tions of Connecticut State Agencies. (Internal quotation
marks omitted.) Id., 635. ‘‘[T]he amount of support
determined without reference to the deviation criteria
is presumed to be the correct amount of support, and
that presumption may only be rebutted by a specific
finding on the record that the application of the guide-
lines would be inequitable or inappropriate under the
circumstances of a particular case. When the latter is
true, § 46b-215a-3 (b) (1) (B) [of the Regulations of
Connecticut State Agencies, now § 46b-215a-5c (b) (1)
(B)] allows deviation from the guidelines on the basis of
a parent’s earning capacity.’’ (Internal quotation marks
omitted.) Id.
‘‘Given this regulatory framework, a court errs in
calculating child support on the basis of a parent’s earn-
ing capacity without first stating the presumptive sup-
port amount at which it arrived by applying the
guidelines and using the parent’s actual income and
second finding application of the guidelines to be inequi-
table or inappropriate.’’ (Emphasis in original.) Battis-
totti v. Suzanne A., supra, 182 Conn. App. 52 n.8; see
also Barcelo v. Barcelo, supra, 158 Conn. App. 215; Fox
v. Fox, supra, 152 Conn. App. 635.
In the present case, the trial court did not determine
the defendant’s actual income and then calculate the
presumptive child support amount. The record does
not reflect a finding by the court about the defendant’s
actual income. As in Fox, the trial court erroneously
calculated the defendant’s child support obligation on
the basis of his earning capacity without determining
the defendant’s actual income and using this determina-
tion to state the presumptive support amount under the
guidelines. As explained in Fox, under the guidelines,
earning capacity may be used as a deviation criterion
but should not be used to determine the presumptive
support amount itself. Fox v. Fox, supra, 152 Conn.
App. 635. Additionally, the trial court did not make
a finding that application of the guidelines would be
inequitable or inappropriate, as required by § 46b-215a-
5c (a) of the Regulations of Connecticut State Agencies.
‘‘Although a trial court’s discretion in a domestic rela-
tions matter may be broad, it is not so expansive that
it encompasses clear omissions of required procedures
for setting child support obligations in high income,
high asset familial situations . . . . ’’ Id., 640; see also
Barcelo v. Barcelo, supra, 158 Conn. App. 217. Consis-
tent with the mosaic doctrine, although this error only
pertains to the court’s determination of child support,
the proper remedy is to remand this matter for reconsid-
eration of all of its financial orders.6 Barcelo v. Barcelo,
supra, 217, 226–27; Fox v. Fox, supra, 640–41; O’Brien
v. O’Brien, 138 Conn. App. 544, 555, 53 A.3d 1039 (2012),
cert. denied, 308 Conn. 937, 66 A.3d 500 (2013).
II
The defendant next claims that the court abused its
discretion by ordering him to pay nonmodifiable unallo-
cated alimony and child support.7 Specifically, he
argues, inter alia, that the court’s order improperly pre-
cludes reductions based on each child attaining the age
of majority. We agree.
‘‘As a general matter, [t]he obligation of a parent to
support a child terminates when the child attains the
age of majority, which, in this state, is eighteen. General
Statutes § 1-1d . . . .’’ (Citation omitted; internal quo-
tation marks omitted.) Malpeso v. Malpeso, 165 Conn.
App. 151, 176, 138 A.3d 1069 (2016). In Hughes v.
Hughes, 95 Conn. App. 200, 895 A.2d 274, cert. denied,
280 Conn. 902, 907 A.2d 90 (2006), after the court issued
an unallocated order of alimony and child support, the
plaintiff claimed that, because the order provided for
no reduction as each child attained the age of majority,
a portion of the support order would necessarily be
attributable to the support of a child who had surpassed
the age of majority. Id., 209. In rejecting the plaintiff’s
claim, we stated: ‘‘The plaintiff fails to acknowledge
. . . the fact that he may move to modify the combined
alimony and support order at any time, including the
date on which each child reaches the age of majority.
This court has held that [w]hen, as part of a divorce
decree, a parent is ordered to pay a specified amount
periodically for the benefit of more than one child, the
emancipation of one child does not automatically affect
the liability of the parent for the full amount. . . . The
proper remedy . . . is to seek a modification of the
decree. . . . Thus, although the attainment of majority
by each child may not automatically entitle the plaintiff
to a reduction in his alimony and support obligation, it
provides a basis for the plaintiff to seek a modification.
Because the order as framed by the court does not, by
its own terms, require a payment of combined alimony
and support beyond the dates on which the children
reach the age of majority, and because the order is
subject to modification as each child reaches the age
of majority, it does not violate the proscription against
orders for the payment of support beyond the permissi-
ble age.’’ (Citation omitted; emphasis added; footnote
omitted; internal quotation marks omitted.) Id., 209–10;
see also Matles v. Matles, 8 Conn. App. 76, 81, 511 A.2d
363 (1986) (‘‘when an order for unallocated alimony
and support is entered and when that order does not
contain a provision for specific reduction or realloca-
tion upon the child’s majority, there is implicit in such
order the contemplation that when the child attains
majority the trial court, upon motion of either party,
must conduct a hearing to ascertain what part, if any,
of the order is then attributable to child support and it
must modify the order to reflect the same’’).
In the present case, the court ordered the defendant
to pay $12,500 to the plaintiff each month as unallocated
alimony and support. The court further ordered that
the duration and amount of the payment were to be
nonmodifiable by either party. Because the parties have
three children, the result of this order is that the defen-
dant will be unable to seek modification as each child
attains the age of majority; the defendant, rather, will
be required to pay the same amount of child support
for three minor children, two minor children and one
minor child. We, therefore, conclude that the court
abused its discretion in making the unallocated alimony
and child support order nonmodifiable as to term or
amount.8
The judgment is reversed only as to the financial
orders and the case is remanded for further proceedings
consistent with this opinion; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
In his initial brief, the defendant argued that (1) the court’s determination
of his gross and net income was clearly erroneous, (2) the court abused its
discretion in ordering that the defendant pay 70 percent of his gross income
and more than 100 percent of his net income to the plaintiff and (3) the
court abused its discretion by ordering the defendant to pay nonmodifiable
unallocated alimony and support. Following an articulation by the trial court
and supplemental briefing by the parties, the defendant argued that the
court erroneously computed his presumptive child support obligation and
that the factual basis articulated by the trial court does not support its
findings as to the defendant’s gross and net annual earning capacity. Because
we conclude that the trial court erroneously computed the defendant’s
presumptive child support obligation by relying on his earning capacity
rather than his actual earnings, we reverse the judgment and remand the
case to the trial court for reconsideration of all of its financial orders. We,
therefore, need not consider the defendant’s additional claims pertaining
to the calculation of the financial orders. We will, however, consider the
defendant’s claim that the court abused its discretion by ordering the defen-
dant to pay nonmodifiable unallocated alimony and support, as this issue
is likely to arise on remand.
2
November 3, 2025, is the eighteenth birthday of the parties’ youngest
child.
3
‘‘Even though an unallocated order incorporates alimony and child sup-
port without delineating specific amounts for each component, the unallo-
cated order, along with other financial orders, necessarily includes a portion
attributable to child support in an amount sufficient to satisfy the guidelines.’’
Tomlinson v. Tomlinson, 305 Conn. 539, 558, 46 A.3d 112 (2012).
4
This court’s order stated: ‘‘Pursuant to Practice Book [§§] 61-10 and 60-
5, [this] court hereby orders the trial court, Tindill, J. . . . to articulate:
(1) whether the finding of weekly gross income of $5288, as recorded on
court exhibit B (worksheet for the Connecticut Child Support and Arrearage
Guidelines), represented a finding as to the actual income or the earning
capacity of the defendant . . . and (2) the factual basis for that finding.’’
5
The court further stated that review and consideration of the following
factors formed the factual basis for its finding that the defendant could
realistically be expected to earn the gross and net income amounts on the
worksheet: the defendant’s age, the defendant’s testimony that he was in
good health, the parties’ testimony that the defendant graduated from Pace
University with degrees in math and physics, the defendant’s testimony that
he has insurance licenses in property, casualty, life and health and that he
has passed some actuary exams, the defendant’s testimony regarding his
work history, purchase and ownership of insurance businesses, and forma-
tion of insurance businesses, the defendant’s financial affidavits, the parties’
worksheets, certain exhibits filed by the defendant and the testimony from
both parties and Robert Pintucci, the defendant’s accountant, regarding the
parties’ finances.
6
The plaintiff concedes that, pursuant to Fox v. Fox, supra, 152 Conn.
App. 632, the court erroneously computed the defendant’s presumptive
minimum child support obligation on the basis of the defendant’s earning
capacity rather than his actual earnings. She argues, however, that the
defendant has waived this issue because he argued, in his initial brief, that
the evidence was insufficient regarding his income while in his supplemental
brief, he argues that the court did not properly apply the guidelines pursuant
to Fox. We disagree.
It was not until the trial court issued its articulation in response to this
court’s order, subsequent to oral argument before this court, that the trial
court indicated that the gross income amount of $5288 reflected on the
worksheet represented the defendant’s earning capacity. The court’s initial
memorandum of decision did not reference the defendant’s earning capacity
and the box for ‘‘earning capacity’’ was not checked by the court in the
worksheet attached to its decision. Following the court’s articulation, we
ordered the parties to file supplemental briefs. Under these circumstances,
we cannot agree that the defendant has waived his right to argue that
the court erroneously computed his presumptive minimum child support
amount by relying on his earning capacity rather than his actual earnings.
7
General Statutes § 46b-86 (a) provides, in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support . . . may, at any time
thereafter, be continued, set aside, altered or modified by the court upon
a showing of a substantial change in the circumstances of either party or
upon a showing that the final order for child support substantially deviates
from the child support guidelines established pursuant to section 46b-
215a . . . .’’
8
Because on remand the trial court may again entertain the issuance of
a nonmodifiable support order, this court notes the following. Although
General Statutes § 46b-86 (a) authorizes the court to modify support orders
‘‘[u]nless and to the extent that the decree precludes modification,’’ the
manner in which the trial court should exercise its discretion under the
statute to issue nonmodifiable child support orders is not articulated and
remains unclear. The need for adequate financial support of minor children
from their parents is an established public policy. See Sablosky v. Sablosky,
258 Conn. 713, 721, 784 A.2d 890 (2001). In light of this public policy, a
question remains as to what extent a trial court may issue a child support
order that remains nonmodifiable even in the event of a substantial, or, for
example, a catastrophic, change in the circumstances of a parent, a child
or both. Stated differently, a question continues to exist as to whether the
trial court, having the authority under § 46b-86 (a) to issue a nonmodifiable
child support order, reasonably exercises its authority under the statute by
issuing a child support order that precludes modification even in the event
of a substantial change of circumstances adversely affecting the adequacy
of financial support for the child. Compare Amodio v. Amodio, 56 Conn.
App. 459, 472, 743 A.2d 1135 (‘‘[t]he plain language of § 46b-86 [a] . . .
makes clear that if a decree precludes modification . . . no modification
may be had’’), cert. granted, 253 Conn. 910, 754 A.2d 160 (2000) (appeal
withdrawn September 27, 2000), with Guille v. Guille, 196 Conn. 260, 265,
492 A.2d 175 (1985) (observing that minor children of marriage have right
to support, which parents cannot contractually limit, and concluding that
‘‘neither the general language of . . . § 46b-86 [a] . . . nor the decree’s
broadly phrased nonmodifiability provision, was effective to restrict perma-
nently the court’s power to modify the terms of child support under the
circumstances of [that] case’’); and Rempt v. Rempt, 5 Conn. App. 85, 88,
496 A.2d 988 (1985) (following Guille v. Guille, supra, 265). In Tomlinson
v. Tomlinson, 305 Conn. 539, 548 n.4, 46 A.3d 112 (2012), our Supreme Court
acknowledged that existing jurisprudence on this issue ‘‘does not contain
an easily discernible thread.’’ The court ‘‘invite[d] the legislature to clarify
the circumstances, if any, under which child support may be made nonmodifi-
able, as well as the circumstances in which public policy would dictate that
child support orders remain modifiable, notwithstanding language in the
decree to the contrary.’’ Id., 549 n.6.