Barcelo v. Barcelo

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SIMONA CASARINI BARCELO v. DANIEL BARCELO
(AC 36276)
Beach, Keller and Pellegrino, Js.
Argued January 21—officially released June 30, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, S. Richards, J.)
Thomas M. Shanley, for the appellant (plaintiff).
Samuel V. Schoonmaker IV, with whom was Wendy
Dunne DiChristina, for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, Simona Casarini Barcelo,
appeals from the trial court’s financial orders entered
in the context of its judgment of dissolution. She claims
that the court erred by (1) awarding her time limited
alimony and precluding modification of her time limited
alimony award, (2) failing to order Daniel Barcelo, the
defendant, to pay for the parties’ minor children’s pri-
vate school tuitions and failing to reserve jurisdiction
to enter an order regarding their minor children’s post-
secondary education, (3) ordering her to refinance the
parties’ existing mortgage on their marital home, pay
the defendant 50 percent of the net equity in the marital
home, and immediately remove his name from the
existing mortgage on the marital home, (4) awarding
sole ownership of a Louis XVI armoire to the defendant,
(5) ordering the defendant to pay her 15 percent of his
future bonus income by way of a supplemental child
support order, and (6) ordering the parties to submit
to arbitration to resolve any future disputes over the
distribution of their personal property. We reverse all
of the court’s financial orders in the judgment of dissolu-
tion and remand the matter for the court to conduct
further proceedings to reconsider all of its financial
orders1 on the basis of our conclusion that the court
erred by (1) ordering the defendant, by way of a supple-
mental child support order, to pay the plaintiff 15 per-
cent of his future bonus income, (2) failing to provide
notice to the parties, prior to rendering its judgment of
dissolution, that it would not reserve jurisdiction to
enter postsecondary educational support orders for the
parties’ minor children, and (3) ordering the parties to
submit to arbitration to resolve any future disputes over
the distribution of their personal property. We affirm
the judgment in all other respects.2
The following procedural history is relevant here.
The plaintiff filed an action for dissolution in July, 2011,
and the matter was tried before the court over the
course of three days in May, 2013. The court rendered
the judgment of dissolution on November 5, 2013. In
rendering its decision, the court found and considered
the following facts, which are relevant to this appeal.
‘‘The parties were married on September 17, 1994, in
Pals, Spain. Two children are the issue of the parties’
marriage. . . .
‘‘[At the time of the dissolution, the] plaintiff [was]
a forty-four year old woman in good health. She has
a degree in marketing from Syracuse University. The
plaintiff was employed at Giovanni Piranesi from 1993
until the birth of their son in 2000 and has been working
as a part time residential realtor since 2008. From 2008
through [2013] the plaintiff has earned the following
amounts after expenses: $164 in 2008, $54 in 2009, $3700
in 2010, $1517 in 2011, $18,000 in 2012 and $2000 year
to date without expenses calculated and [she] antici-
pates an additional commission of $14,000 in 2013. [At
the time of the dissolution, the] defendant [was] a forty-
three year old man in good health. He has a bachelor’s
degree from Syracuse University and is a chartered
financial analyst. The defendant has held various jobs
in finance with a specialization in the oil and gas indus-
try. . . . The defendant is presently employed by Rus
Petro with an annual salary of $70,000 plus a discretion-
ary bonus in an undetermined amount. Their eldest
child has attended . . . a private school, since fifth
grade. The tuition [for the 2013 academic year] was
$40,000. Their youngest child has attended . . . a pri-
vate school for the last two years. The tuition for his
school [for the 2013 academic year] was $10,000. . . .
‘‘The parties also received or had access to, either
individually or as a couple, monetary gifts from the
plaintiff’s parents . . . throughout the course of the
parties’ marriage that enabled them to live beyond their
means based on their collective earnings . . . . Ulti-
mately, all things considered . . . the cause of the
breakdown of the parties’ marriage was their irreconcil-
able differences stemming from their respective extra-
marital affair(s) and their difficulty in being intimate
with each other.’’
The plaintiff filed the present appeal following the
court’s judgment of dissolution. Specifically, she is
appealing orders that the court entered in the judgment
concerning alimony, real and personal property distri-
butions, child support, and arbitration, as well as its
failure to enter orders concerning expenses for the par-
ties’ minor children’s private school tuitions and post-
secondary educational support. Additional facts will be
set forth as necessary.
We begin by setting forth the general standard of
review governing a court’s orders in a judgment of disso-
lution. ‘‘An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . 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. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support 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 mistake has been committed. . . . Therefore, to
conclude that the trial court abused its discretion, we
must find that the court either incorrectly applied the
law or could not reasonably conclude as it did.’’ (Inter-
nal quotation marks omitted.) Cimino v. Cimino, 155
Conn. App. 298, 300–301, 111 A.3d 886, cert. denied,
316 Conn. 912, A.3d. (2015).
‘‘A reviewing court must indulge every reasonable
presumption in favor of the correctness of the trial
court’s action to determine ultimately whether the court
could reasonably conclude as it did. . . . This standard
of review reflects the sound policy that the trial court
has the opportunity to view the parties first hand and
is therefore in the best position to assess all of the
circumstances surrounding a dissolution action, in
which such personal factors such as the demeanor and
the attitude of the parties are so significant.’’ (Internal
quotation marks omitted.) Id., 303.
In addition, we must review whether the court prop-
erly considered the child support guidelines; Regs.,
Conn. State Agencies § 46b-251a-1 et seq.; when it
entered the supplemental child support order. ‘‘The
question of whether, and to what extent, the child sup-
port guidelines apply . . . is a question of law over
which this court . . . exercise[s] plenary review.’’
(Internal quotation marks omitted.) Dowling v. Szymc-
zak, 309 Conn. 390, 399, 72 A.3d 1 (2013).
I
Among the plaintiff’s claims is her assertion that the
court erred by entering a supplemental child support
order that awarded her 15 percent of the defendant’s
future bonus income without adequately considering
the financial needs of the parties’ minor children or
abiding by the child support guidelines. We agree that
the court failed to properly consider the child support
guidelines and failed to consider the financial needs
of the children when entering the supplemental child
support order.
The following additional facts are relevant here. At
trial, the plaintiff requested that the court impute an
earning capacity for the defendant, who claimed to be
earning a salary of $70,000 per year with an expectation
of a bonus that had yet to be determined. The court,
after reviewing the defendant’s annual net earnings
between 2005 and 2011, determined that the defendant
consistently had been a high wage earner, and imputed
an earning capacity to the defendant in an annual gross
amount of $250,000, which the court calculated as an
imputed net weekly income of $2985.3 The court also
found the plaintiff’s weekly net income to be $347. With-
out noting the required presumptive amount of child
support due under the child support guidelines on the
basis of the parties’ actual combined net weekly
incomes, in deviation of the guidelines, based on a cal-
culation of the defendant’s imputed net income, the
court entered the following child support order, in rele-
vant part: ‘‘[T]he defendant shall pay child support to
the plaintiff in the amount of $512 per week . . . until
the parties’ daughter . . . attains the age of eighteen
(18), or if she is still attending high school when she
attains the age of eighteen (18), until she completes
her high school education or attains age nineteen (19),
whichever event shall first occur. Thereafter, the defen-
dant shall pay child support to the plaintiff for the
parties’ son . . . consistent with the child support
guidelines then in effect until the same age conditions
occur as set forth herein for [the parties’ daughter].
‘‘The defendant shall pay to the plaintiff fifteen (15%)
percent of any bonus accruing to himself, regardless
of the source, during the aforementioned child sup-
port period.’’4
The court also ordered the defendant to maintain
medical insurance for the benefit of the minor children
so long as it was available through and subsidized at
substantially the same level by his employer, and
ordered the parties to share equally all unreimbursed
medical and dental expenses for the minor children
until they graduated from high school or attained the
age of nineteen, whichever first occurred.5 In addition,
the court ordered the parties to be equally responsible
for all costs related to the minor children’s extracurricu-
lar activities.
‘‘In appropriate cases, the [child support guidelines]
. . . permit the entry of a supplemental order . . . to
pay a percentage of a future lump sum payment, such
as a bonus. Such supplemental orders may be entered
only when . . . the percentage is generally consistent
with the schedule [contained within the child support
guidelines].’’ (Internal quotation marks omitted.)
Maturo v. Maturo, 296 Conn. 80, 91–92, 995 A.2d 1(2010); Regs., Conn. State Agencies § 46b-215a-2b (c)
(1) (B). The child support guidelines contain a schedule
that sets forth the presumptive amount of child support
a court must award when entering a child support order,
absent an appropriate deviation. Regs., Conn. State
Agencies § 46b-215a-2b (f). The presumptive amounts
of child support set forth in the schedule are calculated
on the basis of the parties’ actual combined net weekly
income and the number of minor children they have.
Id., § 46b-215a-2b (f). The maximum amount of com-
bined net weekly income that the schedule sets pre-
sumptive amounts of child support for is $4000. Id.,
§ 46b-215a-2b (f). Parties who have two minor children,
and a combined net weekly income above the combined
net weekly income the court calculated for the parties,
$3332, pay a percentage of their combined net weekly
income that gradually declines from 17.17 percent at a
combined net weekly income level of $3340, or $573
per week in child support, to 15.89 percent at a com-
bined net weekly income of $4000, or $636 per week
in child support. Id., § 46b-215a-2b (f). Parties with one
minor child and a combined net weekly income above
$3332 pay a percentage of their combined net weekly
income that gradually declines from 12.90 percent at a
combined net weekly income of $3340, or $431 per
week, to 11.83 percent of a combined net weekly income
of $4000, or $473 per week. Id., § 46b-215a-2b (f).
Our Supreme Court previously has addressed the
interplay between the child support guidelines and sup-
plemental child support orders that award a percentage
of a party’s bonus income. In Maturo v. Maturo, supra,296 Conn. 89, a plurality of the court held that a dissolu-
tion court erred by ordering the defendant to pay 20
percent of his annual net bonus income to the plaintiff
as a supplemental child support order. The court
emphasized that ‘‘all child support awards must be
made in accordance with the principles established [in
the child support guidelines] to ensure that such awards
promote equity, uniformity and consistency for children
at all income levels. . . . [All child support awards]
should follow the principle expressly acknowledged
in the preamble [of the child support guidelines] and
reflected in the schedule that the child support obliga-
tion as a percentage of combined net weekly income
should decline as income level rises.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Id., 94–95.6 The court noted, ‘‘[t]he effect of
unrestrained child support awards in high income cases
is a potential windfall that transfers wealth from one
spouse to another or from one spouse to the children
under the guise of child support,’’ and ‘‘the award of 20
percent of the defendant’s indeterminate annual bonus
without any justification relating to the characteristics
or needs of the children closely resembles the ‘dis-
guise[d] alimony’ this court disapproved of in Brown
v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983).’’
(Emphasis omitted.) Maturo v. Maturo, supra, 105. The
court concluded that the dissolution court’s open-ended
allocation of 20 percent of the defendant’s net bonus
income for child support was improper because it was
inconsistent with the schedule contained in the child
support guidelines and it violated the principle that a
decreased percentage of parties’ combined net weekly
income should be awarded as the parties’ income level
rises. Id., 97. Consistent with the child support guide-
lines’ schedule, absent a proper deviation,7 a court may
not order parties to pay less than the presumptive
amount set forth in the child support guidelines, $636, or
more than 15.89 percent of their combined net weekly
income in child support if they make $4000 or more
in combined net weekly income and have two minor
children. Regs., Conn. State Agencies § 46b-215a-2b (f).
In Maturo, the combined net weekly income of the
parties exceeded $4000, and they had two minor chil-
dren. Maturo v. Maturo, supra, 96. Therefore, the court
concluded that the dissolution court abused its discre-
tion by ordering the defendant to pay 20 percent, rather
than, at most, 15.89 percent, of his net bonus income
as part of the child support order, absent a proper
deviation.8 Id., 97–99.
In addition, in Maturo, the court determined it was
error for the trial court to fail to provide ‘‘any explicit
justification for the award of bonus income that was
related to the financial or nonfinancial needs or charac-
teristics of the children under General Statutes § 46b-
84 (d)9. . . . In fact, there is no evidence that the court
considered anything other than the defendant’s income
and earning capacity in making the child support award.
Thus, absent a finding as to how the additional funds
would be used for the benefit of the children and how
the award was related to the factors identified in § 46b-
84 (d), we conclude that the court exceeded its legiti-
mate discretion.’’ (Emphasis in original; footnote
added.) Id., 103.
In a similar case, our Supreme Court held that a
dissolution court erred by ordering the defendant to
pay 20 percent of his annual net bonus income to the
plaintiff as a supplemental child support order. Mistho-
poulos v. Misthopoulos, 297 Conn. 358, 370, 999 A.2d 721(2010). Relying on Maturo and reciting the principles
detailed therein, the court concluded that the dissolu-
tion court’s order was improper. Id., 368–70. In Mistho-
poulos, the parties had a combined net weekly income
of $2080 and had three minor children. Id., 368. Pursuant
to the child support guidelines, absent a proper devia-
tion, courts may not order parties with three minor
children and a combined net weekly income of $4000
or more to pay beyond 17.16 percent of their combined
net weekly income in child support. Id., 369; Regs.,
Conn. State Agencies § 46b-215a-2b (f). The defendant
in Misthopoulos had earned $565,740 as a bonus the
prior year, which, pursuant to the 20 percent supple-
mental child support order, increased the weekly child
support award by $2175, or approximately four times
the amount of weekly child support the defendant was
ordered to pay, $477, on the basis of the parties’ com-
bined net weekly income of $2080 per week, or $108,160
per year. Misthopoulos v. Misthopoulos, supra, 368. The
Supreme Court found that the award of 20 percent
of the defendant’s net cash bonus and tax refunds as
additional child support was not in compliance with
the child support guidelines’ principles and in excess
of the 17.16 maximum percentage allowed under the
child support guidelines for three minor children at a
combined net weekly income of $4000 or more. Id.,368–69. Therefore, the court concluded that the dissolu-
tion court abused its discretion by ordering the defen-
dant to pay 20 percent, rather than, at most, 17.16
percent, of his net bonus income as part of the child
support order, absent a proper deviation.10 Id., 370.
Our review of the principles expressed in Maturo
and Misthopoulos leads us to conclude that the court’s
supplemental child support order in the present case,
awarding the plaintiff 15 percent of the defendant’s
undetermined future bonus income, was improper for
several reasons.
First, the court’s order did not specify whether the
court was referring to 15 percent of the defendant’s
future gross or net bonus income. This was improper.
‘‘It is clear that a trial court must base . . . child sup-
port orders on the available net income of the parties.’’
(Internal quotation marks omitted.) Evans v. Taylor,
67 Conn. App. 108, 111, 786 A.2d 525 (2001).
Second, noting the defendant was currently making
a salary of $70,000 with an expectation of a bonus, the
court imputed an earning capacity to him of $250,000
annually and based its weekly child support order of
$512 on the higher amount. A court in issuing a child
support order must make a specific finding on the
record as to the presumptive amount of child support
due under the child support guidelines or any findings
regarding a deviation from that amount. See Deshpande
v. Deshpande, 142 Conn. App. 471, 478–79, 65 A.3d 12(2013). In Fox v. Fox, 152 Conn. App. 611, 99 A.3d 1206,
cert. denied, 314 Conn. 945, 103 A.3d 977 (2014), this
court held that ‘‘[a] party’s earning capacity is a devia-
tion criterion under the guidelines, and, therefore, a
court must specifically invoke the criterion and specifi-
cally explain its justification for calculating a party’s
child support obligation by virtue of the criterion
instead of by virtue of the procedures outlined in the
guidelines.’’ Id., 633. The court in the present case failed
to cite the presumptive support amount calculated with
the defendant’s actual net income, and then did not
invoke the defendant’s earning capacity as a deviation
criterion in calculating his child support obligation. It
also did not explain why an obligation calculated in
accordance with the defendant’s actual income, pursu-
ant to the child support guidelines, would be inequitable
or inappropriate, thus warranting instead an obligation
calculated in accordance with his earning capacity.
The court then ordered the defendant to pay 15 per-
cent of any of his bonus income, not 15 percent of
any bonus income in excess of his $250,000 earning
capacity. As a result of this apparent ambiguity, the
court, without justifying a deviation, permitted the
plaintiff to ‘‘double dip’’ and collect child support in
excess of the child support guidelines with respect to
whatever bonus income the defendant earned above
his $70,000 salary but below his imputed earning capac-
ity of $250,000. For example, the court determined the
plaintiff’s imputed net weekly income to be $347. If the
defendant only received his salary of $70,000 and a net
weekly bonus income of $1000 in a given year, he would
be obligated to pay not only the $512 weekly child
support calculated on the basis of his net weekly earn-
ing capacity of $2985, but an additional 15 percent of
his $1000 net weekly bonus income, thereby increasing
his weekly child support obligation to $662, an amount
which deviates well above the guidelines when his
imputed net weekly income, with bonus, does not
exceed his $2985 net weekly earning capacity.
Third, under the principles set forth in Maturo and
Misthopoulos, pursuant to the child support guidelines,
absent finding a proper deviation, courts may not order
parties with a combined net weekly income of $4000
or more and two minor children to pay beyond 15.89
percent of their combined net weekly income in child
support. Regs., Conn. State Agencies § 46b-215a-2b (f).
When parties have one minor child and earn a combined
net weekly income of $4000 or more, a court may not
order them to pay beyond 11.83 percent of their com-
bined net weekly income in child support. Id., § 46b-
215a-2b (f). Therefore, in the event that the parties’
combined net weekly income reached or exceeded
$4000, the court also erred in failing to indicate why
its open-ended supplemental child support order of 15
percent of the defendant’s bonus income, without any
indicated percentage decline once the parties’ eldest
child attained the age of eighteen, or in the alternative,
completed high school or attained the age of nineteen,
whichever event first occurred, was a justifiable devia-
tion from the guidelines.
Finally, the court made no specific finding regarding
how its open-ended award of bonus income, in the event
that the parties’ combined net weekly income reached
or exceeded $4000, would foster the needs of the chil-
dren.11 We conclude that the court erred by failing to
make explicit findings as to how the additional funds
would benefit the children and how the supplemental
award was related to the factors identified in § 46b-84
(d), especially when the defendant also is ordered to
maintain health insurance coverage for the children and
to pay 50 percent of the unreimbursed costs of the
children’s health care and extracurricular activities. See
Maturo v. Maturo, supra, 296 Conn. 102.
For the foregoing reasons, the court erred by misap-
plying the child support guidelines’ principles when it
awarded the plaintiff 15 percent of the defendant’s
future bonus income as a supplemental child support
order. ‘‘Affirming the judgment with respect to the child
support orders would amount to sanctioning the court’s
bypassing of and noncompliance with the guidelines’
clear and firm requirements regarding the use of devia-
tion criteria and presumptive support amounts. We
decline to do so, especially in light of the growing line
of cases in which our Supreme Court has stated
unequivocally that the guidelines and their underlying
principles limit the discretion accorded to trial courts
tasked with fashioning child support award in high
income, high asset familial situations.’’ Fox v. Fox,
supra, 152 Conn. App. 640. Accordingly, as we discuss
in part IV of this opinion, the proper remedy is to remand
the matter for the court to reconsider all of its finan-
cial orders.
II
Next, we address the plaintiff’s claim concerning
the court’s failure to reserve jurisdiction to enter a
postsecondary educational support order for the par-
ties’ minor children. We conclude that the court violated
General Statutes § 46b-56c (b) (1)12 by failing to notify
the parties that it could not enter a postsecondary edu-
cational support order at a later date if it did not enter
such an order, or reserve jurisdiction to enter such an
order, in the judgment of dissolution.
The following additional facts are relevant here. First,
although the parties presented no agreement to the
court providing for a postsecondary educational sup-
port order, or even an agreement concerning the reser-
vation of jurisdiction over a postsecondary educational
support order, the record indicates that both parties, in
their respective proposed orders to the court, requested
that the court reserve jurisdiction to enter a postsecond-
ary educational support order under § 46b-56c (c).13
Presumably, the parties assumed, given their matching
positions, that the court would reserve jurisdiction to
enter, at another time, orders regarding payment of
the children’s postsecondary educational expenses, and
neither party directly focused on addressing the actual
merits of an educational support order at trial.
In the judgment of dissolution, the court, pursuant to
§ 46b-56c (c), determined that ‘‘had the family remained
intact, the parties would not have financially supported
their minor children. Although both parties have under-
graduate degrees, there is no evidence in the record to
support the court’s award of a postsecondary educa-
tional support order. Thus, the court will not reserve
jurisdiction to issue orders concerning the postsecond-
ary education of the parties’ minor children.’’ Further,
the court reiterated that it ‘‘[made] neither any postsec-
ondary education[al] support orders nor [reserved]
jurisdiction . . . over any issues related to postsecond-
ary education[al] support of the minor children. [It] did
not find that it was more likely than not that the parents
would have provided postsecondary education[al] sup-
port to the minor children if the family were intact.’’14
The record contains no indication that the court
abided by the requirements promulgated under § 46b-
56c (b) (1), which obligated the court to inform the
parties that they could not request a postsecondary
educational support order at a later time if the court
did not enter such an order at the time of dissolution.
If a court does not enter an educational support order
at the time of dissolution, such an order cannot be
entered subsequently absent a provision in the judg-
ment of dissolution stating that a parent may file a
motion or petition for an educational support order at
a later date. General Statutes § 46b-56c (b) (1). Further-
more, ‘‘[i]f no educational support order is entered at
the time of entry of a decree of dissolution . . . the
court shall inform the parents that no educational sup-
port order may be entered thereafter. The court may
accept a parent’s waiver of the right to file a motion
or petition for an educational support order upon a
finding that the parent fully understands the conse-
quences of such waiver.’’ General Statutes § 46b-56c
(b) (1).
We conclude that the court violated § 46b-56c (b) (1)
when it failed to advise the parties that no postsecond-
ary educational support order could be entered later if
the court did not enter such an order at the time of the
judgment of dissolution or reserve jurisdiction to enter
such an order. Here, the court decided not to enter a
postsecondary educational support order for the par-
ties’ minor children and, despite requests by both par-
ties to reserve jurisdiction to enter such an order,15 the
judgment of dissolution did not contain a provision
stating that either party could request a postsecondary
education order at a later time. Although the court was
not bound to accept the parties’ proposed orders to
reserve jurisdiction, under § 46b-56c (b) (1), the court
had an obligation, prior to the entry of the judgment
of dissolution, to inform the parties that it would not
be entering a postsecondary educational support order
or reserving jurisdiction to enter one at a subsequent
date because both parties had requested that the court
reserve jurisdiction to permit them to request a postsec-
ondary educational support order at a later time.16 This
would have given them notice that the court did not
view their matching proposed orders as a sufficient
basis for the reservation of jurisdiction, and would have
provided them with a fair opportunity to more fully
address what was necessary to achieve either a reserva-
tion of jurisdiction or a proper order concerning their
minor children’s postsecondary education at the time
of the dissolution.17 The court failed to fulfill that obliga-
tion. See, e.g., Robinson v. Robinson, 86 Conn. App.
719, 727–28, 862 A.2d 326 (2004) (reversing financial
orders in judgment of dissolution due to court’s failure
to abide by § 46b-56c [b] [1]).
During the proceedings on remand, the court must
revisit the issue of the postsecondary educational sup-
port orders with the parties. If one or both of the parties
requests that the court reserve jurisdiction over any
such order, and the court is disinclined to reserve juris-
diction over such an order to any subsequent date, it
should so inform the parties and advise them of the
consequences if one of them fails to request such an
order at the time of the proceedings on remand. If after
being so informed, one or both of the parties requests
the entry of an educational support order, the court
shall conduct a hearing in accordance with § 46b-56
(c).18 In the alternative, upon a finding that the parties
fully understand the consequences of a waiver, the
court may accept from the parties a waiver of their
right to seek a postsecondary educational support
order.
III
Last, we address the plaintiff’s claim that the court
abused its discretion by ordering the parties to submit
to arbitration to resolve potential disputes regarding
the distribution of their personal property. We agree.
The following additional facts are relevant here. Para-
graph thirteen of the judgment of dissolution contains
the following order concerning the distribution of the
parties’ personal property: ‘‘13. Personal Property. The
personal property of the parties shall be divided by
agreement between the parties within thirty (30) days
from the date hereof. If the parties are not able to agree,
then ownership of any disputed assets shall be decided
by binding arbitration to be conducted by an indepen-
dent arbiter appointed by the court, with the fees there-
from to be divided equally between the parties.’’ The
record does not indicate that the parties entered into
a voluntary arbitration agreement to resolve disputes
arising from the distribution of their personal property.
The plaintiff asserts that the foregoing order consti-
tutes an improper delegation of the court’s judicial func-
tions; namely, its exclusive authority to divide the
personal property of the parties in a dissolution action.
The defendant counters by arguing that dissolution
courts have the authority to order parties to agree to
arbitration to resolve such disputes.
We recently addressed the question of whether,
absent a voluntary arbitration agreement executed
between the parties, a court may order parties in a
dissolution action to submit to arbitration in Budrawich
v. Budrawich, 156 Conn. App. 628, A.3d (2015).
In Budrawich, the dissolution court ordered the parties
to submit to arbitration to resolve a dispute concerning
unreimbursed expenses each party incurred on behalf
of their minor children. Id., 648. Prior to the court’s
order, the parties had not executed a voluntary
agreement wherein they agreed to seek arbitration to
resolve the disputed expenses issue. Id., 649. This court
concluded that dissolution courts are not vested with
the authority to order parties to submit to arbitration
absent a voluntary agreement. Id. ‘‘Pursuant to General
Statutes § 46b-66 (c),19 parties may agree, with the
court’s permission, to pursue arbitration to resolve cer-
tain issues related to their dissolution. A court does
not, however, have the authority to order parties to
submit such issues to arbitration absent a voluntary
arbitration agreement executed between the parties.
Arbitration is a creature of contract and without a con-
tractual agreement to arbitrate there can be no arbitra-
tion. . . . [T]he basis for arbitration in a particular case
is to be found in the written agreement between the
parties. . . . Parties who have contracted to arbitrate
certain matters have no duty to arbitrate other matters
which they have not agreed to arbitrate. Nor can the
courts, absent a statute, compel the parties to arbitrate
those other matters.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 648–49.
Here, as in Budrawich, the parties did not execute
a voluntary agreement wherein they have agreed to
submit to arbitration to resolve any dispute concerning
the distribution of their personal property. Therefore,
we conclude that the court abused its discretion by
ordering the parties to submit to arbitration involun-
tarily. On remand, the court shall not order the parties
to submit to arbitration involuntarily to resolve any
disputes arising out of their dissolution.20
IV
We must now determine whether our conclusion that
the court erred when it entered orders concerning sup-
plemental child support and the distribution of the par-
ties’ personal property, and when it violated § 46b-56c
(b) (1) by failing to notify the parties that it could not
enter a postsecondary educational support order for
their minor children at a later date if it did not enter
such an order or reserve jurisdiction to enter such an
order, in the judgment of dissolution, requires the court
to reconsider all of its financial orders. Individual finan-
cial orders in a dissolution action are ‘‘part of the care-
fully 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 elements. Con-
sistent with that approach, our courts have utilized the
mosaic doctrine as a remedial device that allows
reviewing courts to remand cases for reconsideration
of all financial orders even though the review process
might reveal a flaw only in the alimony, property distri-
bution or child support awards.’’ (Citation omitted;
internal quotation marks omitted.) Marshall v. Mar-
shall, 119 Conn. App. 120, 135–36, 988 A.2d 314, cert.
granted in part, 296 Conn. 908, 993 A.2d 467 (2010)
(appeal withdrawn November 18, 2010).
‘‘Every improper order, however, does not necessar-
ily merit a reconsideration of all of the trial court’s
financial orders. A financial order is severable when it
is not in any way interdependent with other orders and
is not improperly based on a factor that is linked to
other factors.’’ Smith v. Smith, 249 Conn. 265, 277, 752
A.2d 1023 (1999). ‘‘In other words, an order is severable
if its impropriety does not place the correctness of the
other orders in question.’’ (Internal quotations marks
omitted.) Maturo v. Maturo, supra, 296 Conn. 124–25.
We conclude that reversing the court’s improper supple-
mental child support order in the present case inevitably
impacts all of the other financial orders.
As previously discussed, in fashioning its child sup-
port order, the court failed to apply properly the princi-
ples of the child support guidelines. Its order that the
defendant pay the plaintiff 15 percent of his bonus
income impermissibly allows the plaintiff to dip into
the same income twice until his salary, coupled with
his bonus income, exceeds his imputed earning capac-
ity. The alimony order awarded to the plaintiff, $10,000
per month and 20 percent of the defendant’s bonus
income for five years, is based on the same imputed
earning capacity as the child support orders, and like
them, is also problematically articulated so as to create
the potential for an alimony award that permits the
plaintiff to ‘‘double dip,’’ as discussed in part I of this
opinion. In addition, in view of any educational support
order the court may enter, it will have to reconsider all
of its financial orders, including the property distribu-
tion orders. See Robinson v. Robinson, supra, 86 Conn.
App. 728. We are unable to determine whether the
court’s financial awards would remain intact after
reconsidering its orders concerning supplemental child
support and the distribution of the parties’ personal
property, and its failure to reserve jurisdiction to enter
a postsecondary educational support order at a later
date. Therefore, the court must reconsider all of the
financial orders, including the property distribution
orders, on remand.
The judgment is reversed only as to all 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 BEACH, J., concurred.
1
Included in the financial orders to be reconsidered on remand are the
orders entered by the court in paragraphs 2 and 4 through 19 in the judgment
of dissolution.
2
We need not reach the plaintiff’s claims regarding alimony, the marital
home, the Louis XVI armoire, or the court’s failure to enter an order that
the defendant contribute to the cost of the minor children’s private school
tuitions on the basis of our conclusion that the court must reconsider all
of its financial orders as a result of the errors it committed when entering
the supplemental child support order and personal property distribution
order, and when it failed to provide the parties with notice regarding its
decision not to reserve jurisdiction over a postsecondary educational sup-
port order for the parties’ minor children.
3
‘‘In appropriate circumstances in marital dissolution proceedings, a trial
court may base its financial awards on the earning capacity rather than the
actual earned income of the parties. . . . Such circumstances include those
where there is evidence that a party voluntarily quit or avoided employment
in his or her field of expertise and where there is evidence of that party’s
previous earnings.’’ (Citations omitted.) Paddock v. Paddock, 22 Conn. App.
367, 371, 577 A.2d 1087 (1990).
4
The court indicated it was ‘‘unwilling to also impute a specific dollar
amount or range for a bonus to which the defendant may be entitled given
the uncertainty, variability and complex conditions of bonuses.’’ Unfortu-
nately, the court’s failure to consider the potential variability of the defen-
dant’s bonus income contributed to the entry of a supplemental child support
order that does not withstand scrutiny.
5
The order on unreimbursed medical expenses is improper because it
fails to calculate the presumptive percentage of unreimbursed medical and
dental expenses each party would be responsible for under the child support
guidelines and whether this order is a deviation. Presumptive health care
contributions are based on the parents’ net weekly disposable incomes, as
opposed to their net weekly incomes, and are calculated according to the
child support guidelines. See Regs., Conn. State Agencies § 46b-215a-2b (g)
(3). Under this section, the amount of child support and alimony paid by
or received from each parent are required factors in the calculation. Id.,
§ 46b-215a-2b (g) (3); see Tracey v. Tracey, 97 Conn. App. 122, 127, 902
A.2d 729 (2006).
6
In Dowling v. Szymczak, supra, 309 Conn. 390, our Supreme Court
appeared to further refine the analysis it set forth in Maturo concerning
the application of the child support guidelines in exceptionally high income
cases. In Dowling, our Supreme Court stated that, despite the principle that
the percentage of parties’ combined net weekly income allocated for child
support should decline as the parties’ income level rises, courts in exception-
ally high income cases are not required to enter a child support award
calculated on the basis of a percentage lower than the presumptive percent-
age contained in the child support guidelines. Id., 404–405; see also Regs.,
Conn. State Agencies § 46b-215a-2b (f). Instead, the court noted that the
legislature and the Connecticut Commission for Child Support Guidelines
are responsible for updating the guidelines and setting forth the precise
presumptive amounts and percentages for courts to apply in high income
cases. Dowling v. Szymczak, supra, 404.
7
‘‘Section 46b-215a-3 (b) of the Regulations of Connecticut State Agencies
lists the six criteria that may justify deviation from the presumptive support
amounts as, (1) other financial resources available to a parent that are 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, (2)
[e]xtraordinary expenses for care and maintenance of the child, (3) [e]xtraor-
dinary parental expenses . . . that are not considered allowable deductions
from gross income, but which are necessary for the parent to maintain a
satisfactory parental relationship with the child, continue employment, or
provide for the parent’s own medical needs, (4) [n]eeds of a parent’s other
dependents . . . [where] a parent may be legally responsible for the support
of individuals other than the child whose support is being determined, (5)
[c]oordination of total family support when considerations involving the
division of assets, provision of alimony and tax planning will not result in
a lesser economic benefit to the child, and (6) [s]pecial circumstances
relating to reasons of equity, including shared physical custody, extraordi-
nary disparity in parental income, the best interests of the child and [o]ther
equitable factors.’’ (Internal quotation marks omitted.) Maturo v. Maturo,
supra, 296 Conn. 92 n.7.
8
In Maturo, the dissolution court set forth reasons for its deviation from
the child support guidelines. Maturo v. Maturo, supra, 296 Conn. 99. The
court concluded that the dissolution court failed to apply the deviation
criteria correctly and failed to explain why an application of the child support
guidelines was inequitable or inappropriate. Id., 99–100.
9
General Statutes § 46b-84 (d) provides: ‘‘ In determining whether a child
is in need of maintenance and, if in need, the respective abilities of the
parents to provide such maintenance and the amount thereof, the court
shall consider the age, health, station, occupation, earning capacity, amount
and sources of income, estate, vocational skills and employability of each
of the parents, and the age, health, station, occupation, educational status
and expectation, amount and sources of income, vocational skills, employ-
ability, estate and needs of the child.’’
10
In Misthopoulos, as was the case in Maturo, the dissolution court set
forth reasons for its deviation from the child support guidelines. Mistho-
poulos v. Misthopoulos, supra, 297 Conn. 370. Our Supreme Court concluded
that the dissolution court failed to apply the deviation criteria properly and
failed to explain why an application of the child support guidelines was
inequitable or inappropriate. Id.11
The record does not contain the amount of the defendant’s bonus income
for the 2013 tax year. The record indicates, however, that he received sizable
bonuses in the past and that he expected a ‘‘large bonus’’ in 2013, so it is
possible that the parties’ combined net weekly income could exceed the
$4000 threshold.
12
General Statutes § 46b-56c (b) (1) provides: ‘‘On motion or petition of
a parent, the court may enter an educational support order at the time of
entry of a decree of dissolution, legal separation or annulment, and no
educational support order may be entered thereafter unless the decree
explicitly provides that a motion or petition for an educational support order
may be filed by either parent at a subsequent date. If no educational support
order is entered at the time of entry of a decree of dissolution, legal separa-
tion or annulment, and the parents have a child who has not attained twenty-
three years of age, the court shall inform the parents that no educational
support order may be entered thereafter. The court may accept a parent’s
waiver of the right to file a motion or petition for an educational support
order upon a finding that the parent fully understands the consequences of
such waiver.’’
13
General Statutes § 46b-56c (c) provides: ‘‘The court may not enter an
educational support order pursuant to this section unless the court finds
as a matter of fact that it is more likely than not that the parents would
have provided support to the child for higher education or private occupa-
tional school if the family were intact. After making such finding, the court,
in determining whether to enter an educational support order, shall consider
all relevant circumstances, including: (1) The parents’ income, assets and
other obligations, including obligations to other dependents; (2) the child’s
need for support to attend an institution of higher education or private
occupational school considering the child’s assets and the child’s ability to
earn income; (3) the availability of financial aid from other sources, including
grants and loans; (4) the reasonableness of the higher education to be
funded considering the child’s academic record and the financial resources
available; (5) the child’s preparation for, aptitude for and commitment to
higher education; and (6) evidence, if any, of the institution of higher educa-
tion or private occupational school the child would attend.’’
14
It appears the court concluded, and the plaintiff agrees, that it could
not reserve jurisdiction absent evidence sufficient for a finding that it was
more likely than not that the parents would have provided postsecondary
educational support to the minor children if the family had remained intact.
Although we are not called upon to address that issue in this appeal, there
is no appellate authority that indicates that such a finding is a necessary
predicate to reserving jurisdiction to enter an educational support order at
a date subsequent to the entry of the judgment of dissolution. In Glenn v.
Glenn, 133 Conn. App. 397, 35 A.3d 376 (2012), the dissolution court rendered
a judgment that incorporated the parties’ written settlement agreement,
which provided that the court would ‘‘[reserve] jurisdiction to allocate
between [the parties] any and all college tuition and expenses incurred on
behalf of the [then] minor child upon post-judgment motion of either party,
pursuant to . . . § 46b-56c.’’ (Internal quotation marks omitted.) Id., 399.
Two years later, the defendant filed a postdissolution motion seeking an
educational support order, and the court entered such an order without
making the finding that it was more likely than not that the parents would
have provided support to the child for higher education if the family were
intact. Id. This court concluded that ‘‘the statute clearly provides that the
court must make the necessary factual finding before it can enter an educa-
tional support order. . . . We are convinced that § 46b-56c (c), as written,
cannot be read in any other manner.’’ (Emphasis in original; internal quota-
tions marks omitted.) Id., 402. Nevertheless, we concluded in Glenn that
the failure to make the express finding at the hearing on the defendant’s
postdissolution motion was harmless because there was ample evidence in
the record of that hearing to support such a finding. Id., 402–403.
Although it may be helpful for the court to make such a finding at the
time of the dissolution because the court is assessing ‘‘whether the intention
to assume a contingent obligation to be performed at some future time
(‘that the parents would have provided support’) existed within a perhaps no
more than hypothetical past setting (‘if the family were intact’)’’; (emphasis in
original) Whelan v. Whelan, Superior Court, judicial district of Windham at
Putnam, Docket No. FA-04-4001044-S (December 11, 2014); we conclude,
under the plain meaning rule; see General Statutes § 1-2z; that § 46b-56c
does not require that this predicate finding be made at the time of the entry
of the decree of dissolution. We note that the obligation to make a finding
is contained in subsection (c) of § 46b-56c, relating to the time when the
court is actually considering issuing an educational support order, not in
subsection (b) (1), where the court is permitted explicitly to provide in the
dissolution decree that a motion or petition for an educational support order
may be filed by either parent at a subsequent date.
15
The parties’ requests for the court to reserve jurisdiction came in the
form of their matching proposed orders to the court rather than in the form
of a motion. We find this to be a distinction without a difference. The filing
of a motion has never been required for a court in a dissolution action to
enter a postsecondary educational support order as part of its judgment
of dissolution when one or both parties have submitted proposed orders
requesting a postsecondary educational support order. We further note that
the plaintiff completed and submitted the standard complaint form for a
dissolution action available in 2011, JD-FM-159 (Rev. 11-09), on which she
checked the box requesting that the court enter a postsecondary educational
support order. The defendant completed and submitted the standard answer
form for a dissolution action available in 2011, JD-FM-160 (Rev. 11-10), on
which he checked a box stating that he agreed with the plaintiff’s request
for the court to enter a postsecondary educational support order. In any
event, here the parties did not ask the court to enter a postsecondary
educational support order in their proposed orders; instead, they requested
that the court reserve jurisdiction to enter a postsecondary educational
support order at a later time. A request to reserve jurisdiction does not
necessitate the filing of a motion.
16
The concurrence states that the majority opinion ‘‘promulgates a sce-
nario by which, in any fully contested family matter, after a judge finishes
writing its opinion where it does not order postsecondary education orders
or reserve jurisdiction to do so, it must sua sponte call the parties back to
court and give them notice of its orders relative to this issue, before releasing
its decision.’’ We respectfully disagree with the concurring opinion’s charac-
terization of the majority opinion. The majority opinion requires a court in
a dissolution action to provide notice to the parties of its intent to forego
entering a postsecondary educational support order, or reserving jurisdiction
to enter one, prior to rendering its judgment of dissolution. The court should
provide this notice and offer the parties an opportunity to discuss the matter
at some point prior to the conclusion of the dissolution proceedings and,
in any event, well before it begins drafting its memorandum of decision
wherein it enters its orders in relation to the parties’ dissolution.
Furthermore, the concurring opinion ponders why a court cannot comply
with § 46b-56c (b) (1) simply by informing the parties in its memorandum
of decision that it has declined to enter a postsecondary educational support
order or to reserve jurisdiction to enter one. We respectfully observe that
any notice first provided in the court’s judgment of dissolution would be,
for practical purposes, untimely. By that point, the parties would no longer
have the opportunity to discuss the matter before the court in an attempt
to gain appropriate relief prior to the time that the court enters its judgment.
17
Although we recognize that stipulations are distinct from matching pro-
posed orders submitted by parties to a court, we nonetheless find it compel-
ling that ‘‘[o]rdinarily . . . stipulations of the parties should be adopted by
the court. . . . If, for some reason, the court cannot adopt the stipulation
of the parties, it should state its disapproval of the stipulation and the reasons
for its disapproval on the record.’’ (Citation omitted.) Central Connecticut
Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 438, 606 A.2d
729 (1992). A court’s failure to afford such notice to parties and to provide
them with an opportunity to discuss its disinclination to adopt their stipula-
tion constitutes clear error. See id. (court committed clear error by disre-
garding stipulation and rendering judgment ‘‘without first notifying the
parties of its disapproval and affording them an opportunity to litigate
the issues fully’’). The foregoing principles are applicable to the analogous
situation in this case, wherein the parties submitted matching proposed
orders to the court requesting that it reserve jurisdiction to enter a postsec-
ondary educational support order at a later date and the court failed to alert
the parties, prior to rendering the judgment of dissolution, that it was not
adopting their matching proposed orders.
18
We note that, on the basis of the record before us, the parties’ eldest
child is now seventeen years old and their youngest child is now fourteen
years old.
19
General Statutes § 46b-66 (c) provides: ‘‘The provisions of chapter 909
shall be applicable to any agreement to arbitrate in an action for dissolution
of marriage under this chapter, provided (1) an arbitration pursuant to such
agreement may proceed only after the court has made a thorough inquiry
and is satisfied that (A) each party entered into such agreement voluntarily
and without coercion, and (B) such agreement is fair and equitable under
the circumstances, and (2) such agreement and an arbitration pursuant to
such agreement shall not include issues related to child support, visitation
and custody. An arbitration award in such action shall be confirmed, modi-
fied or vacated in accordance with the provisions of chapter 909.’’
20
Had the parties voluntarily executed an arbitration agreement, the court,
properly, may have ordered them to submit to arbitration provided it was
satisfied, after a thorough inquiry, that each party entered into the agreement
voluntarily and without coercion, that the agreement was fair and equitable
under the circumstances and the agreement and an arbitration pursuant to
such agreement would not include issues related to child support visitation
and custody. Had an arbitration then occurred, the arbitration award may
have been confirmed, modified or vacated by the court in accordance with
the civil arbitration procedures in chapter 909. See General Statutes § 46b-
66 (c).