Kirwan v. Kirwan

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CHELSEA CHAPMAN KIRWAN
v. LAURENCE KIRWAN
(AC 40008)
(AC 40047)
Sheldon, Prescott and Bear, Js.
Syllabus
The defendant appealed to this court from the judgments of the trial court
dissolving his marriage to the plaintiff and ordering him to make a lump
sum payment to her of $91,000 to satisfy a child support arrearage. The
court had approved an agreement by the parties to enter into binding
mediation/arbitration as to, inter alia, alimony and the division of marital
property. The issue of child support was reserved to the court in accor-
dance with the parties’ agreement and as required by statute (§ 52-408).
The arbitrator made several factual findings in her award, including a
determination that the defendant’s annual gross income was approxi-
mately $400,000 per year. The trial court rendered judgment dissolving
the marriage and incorporated the arbitrator’s award into the dissolution
judgment. Thereafter, the court conducted an evidentiary hearing as to
child support and found, inter alia, that the defendant’s gross annual
income was $560,637 for the purpose of calculating his child support
obligation. The court ordered him to make weekly child support pay-
ments and credited him for having made certain postjudgment child
support payments. Subsequently, the court denied a motion for contempt
filed by the plaintiff as to the child support arrearage, but ordered the
defendant to make the $91,000 lump sum payment. Held:
1. The defendant could not prevail on his claim that the trial court, in making
its child support award, was bound by the arbitrator’s finding that his
gross annual income was $400,000 and, thus, that the court’s finding of
$560,637 was clearly erroneous: the arbitrator’s finding of gross income,
which was made in the context of determining alimony, was not entitled
to preclusive effect in the court’s adjudication of child support, as the
provision in § 52-408 that excludes from arbitration issues related to
child support is broad, the absence of qualifying language conveyed the
legislature’s intent to render inarbitrable all issues, legal and factual,
that pertain to child support, and the defendant offered no analysis of
§ 52-408 in asserting that the arbitrator’s finding should have been bind-
ing on the court in determining his child support obligation; moreover,
even if the exclusionary provision of § 52-408 were not clear and unam-
biguous, this court’s interpretation was consistent with extrinsic evi-
dence of the legislature’s intent, and it would be inconsistent with
concerns for the best interests of children to permit issues related to
child support to be resolved conclusively in arbitration, which is a
nonjudicial forum outside the control of our courts, as that would consti-
tute an impermissible delegation of judicial authority.
2. The trial court’s finding that the defendant earned $400,000 in gross income
from employment was not clearly erroneous; that court reasonably could
have determined that the defendant’s gross income from employment
was at least $400,000, as the plaintiff, who had worked as the business
administrator for the defendant’s medical practice, testified that the
defendant had income from the medical practice, from consulting for
medical companies and from teaching, and the defendant disclosed on
a credit application in connection with an automobile lease that his
gross annual income from employment was $400,000.
3. The defendant’s claim that the trial court improperly determined the
amount of gross rental income that he received from property that was
awarded to him was unavailing, as a sufficient evidentiary basis existed
for the court’s finding; although the court utilized a rental income chart
that had not been admitted into evidence, the chart contained numbers
that reflected those in the defendant’s 2015 tax return, which had been
admitted into evidence, the figures on the chart were easily verified by
comparing them with those on the tax return, and the court properly
omitted from its calculation two of the defendant’s properties that had
generated substantial losses, as those properties were sold prior to the
child support hearing and the defendant failed to explain why it would
be improper for the court to consider only properties that would generate
income in the future in calculating income on which to base his prospec-
tive child support obligations.
4. The defendant could not prevail on his claim that the trial court abused
its discretion in calculating his gross income when it failed to take into
account his payment of life insurance premiums; that court had no
evidentiary basis from which to calculate a credit against the defendant’s
income for a life insurance policy to benefit the children, as he never
provided the court with a breakdown of the premium payments for life
insurance that he disclosed on his financial affidavits, and although he
indicated on his financial affidavit a monthly personal expense for life
insurance, he listed no details of the policies’ beneficiaries or the pre-
mium payments per policy.
5. The trial court did not abuse its discretion in rendering its child support
order, as the order was consistent with the criteria established by statute
(§ 46b-84 [d]) and within the range between the minimum and maximum
support amounts established by the child support guidelines, and
because no deviation from the guidelines occurred, the court was not
required to provide any additional explanation for its decision.
6. The defendant’s claim that the trial court failed to credit the voluntary child
support payments that he made during the child support proceedings
was dismissed as moot: there was no practical relief that could be
afforded to the defendant with respect to his claim that the court was
obligated to subtract the amount of the voluntary payments from the
amount of his arrearage, rather than providing him with credit for the
voluntary payments by temporarily reducing his child support obliga-
tions, as the defendant had reduced his weekly child support obligation
in accordance with the court’s order and, thus, received full credit for
his voluntary child support payments; moreover, even if the trial court
abused its discretion in the manner in which it credited the voluntary
payments, any decision by this court would be academic, as it would
not alter the status quo, which was that the defendant received full
credit for his voluntary payments.
7. The defendant could not prevail on his claim that the trial court improperly
ordered him to pay a lump sum to satisfy the child support arrearage,
rather than permitting him to satisfy that arrearage on a weekly basis,
as contemplated by the child support arrearage guidelines; the defendant
failed to demonstrate that the arrearage guidelines were applicable to
the lump sum order or that the court abused its discretion in ordering
a lump sum payment, as the arrearage guidelines and the applicable
state regulation (§ 46b-215a-3a [a]) reflect that the determination of lump
sum payments is subject to the discretion of the court, and the court
articulated that it ordered the lump sum payment because the defendant
had the ability to pay, given his income and other finances, including
the court’s release to him of $100,000, which had been held in escrow,
to aid him in meeting his child support obligations.
8. The defendant’s claim that the trial court should have dismissed, rather
than denied, the plaintiff’s motion for contempt was not reviewable, the
defendant having failed to raise that claim before the trial court; although
the defendant had asked the trial court to deny the motion because he
had not violated any clear and unambiguous order pertaining to the
child support arrearage, he never asked the court to strike or dismiss
the motion on the basis of legal or factual insufficiencies, or on the
ground that it did not comply with our rules of practice.
Argued May 30—officially released October 23, 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, where the court, Tindill, J.,
approved the agreement of the parties to enter into
binding mediation/arbitration as to certain disputed
matters; thereafter, the arbitrator issued an award and
entered certain orders; subsequently, the arbitrator
issued a clarification of the award; thereafter, the court
granted the defendant’s motion to confirm the arbitra-
tor’s award, and rendered judgment incorporating the
arbitrator’s award and clarification, and dissolving the
marriage and granting certain other relief; subsequently,
the court issued certain orders; thereafter, the court
denied the defendant’s motion to reargue and denied
in part the defendant’s motion for clarification, and
the defendant appealed to this court; subsequently, the
court, Tindill, J., denied the plaintiff’s motion for con-
tempt, and entered certain orders as to child support
and attorney’s fees, and the defendant filed a second
appeal; thereafter, the court, Tindill, J., issued an artic-
ulation of its decision; subsequently, this court consoli-
dated the appeals. Affirmed.
Alan Scott Pickel, for the appellant (defendant).
Joseph T. O’Connor, for the appellee (plaintiff).
Opinion
PRESCOTT, J. In these consolidated appeals arising
out of a marital dissolution action, we must determine,
inter alia, whether an arbitrator’s factual finding regard-
ing the gross income of a party, which was made in
the course of determining alimony and the equitable
distribution of marital assets, is binding on the court
with respect to its subsequent adjudication of child
support, an issue that was statutorily and contractually
excluded from the arbitration. We conclude that it was
proper for the trial court to make its own independent
findings regarding gross income, unfettered by the pre-
vious findings of the arbitrator.
The present appeals arose following the court’s Octo-
ber 23, 2015 judgment dissolving the marriage of the
plaintiff, Chelsea Chapman Kirwan, and the defendant,
Laurence Kirwan. The judgment incorporated by refer-
ence a pendente lite arbitration award that had resolved
most of the issues raised in the dissolution action,
including alimony, the distribution of marital assets,
and the enforceability of a premarital agreement. Both
the parties’ arbitration agreement and the arbitrator’s
award, however, expressly reserved for the Superior
Court resolution of issues related to custody and child
support.1 Following an evidentiary hearing, the court,
on December 7, 2016, issued child support orders,
which, by agreement of the parties, were made retroac-
tive to the date of the dissolution judgment. The defen-
dant appeals from those child support orders (AC
40008). The defendant also appeals from a subsequent
remedial order that the court issued in response to a
motion for contempt and that required the defendant
to make a $91,000 lump sum payment to the plaintiff
to satisfy a child support arrearage resulting from the
court’s December 7, 2016 order making his child sup-
port obligation retroactive to October 23, 2015 (AC
40047).2
The defendant claims on appeal that the court
improperly (1) failed to adhere to the arbitrator’s factual
findings regarding his gross income, as set forth in the
arbitrator’s award, despite the fact that the court incor-
porated the arbitrator’s award by reference into the
dissolution judgment; (2) found that his gross income
from employment was $400,000; (3) calculated his gross
rental income from property awarded to him as part of
the division of marital assets; (4) failed to take into
consideration his payments of premiums for life insur-
ance policies for the benefit of his children;3 (5) failed
to explain why the plaintiff was entitled to support
payments that exceeded the child support guidelines’
minimum presumptive amount; (6) gave prospective
credit for voluntary child support payments made dur-
ing the pendency of the child support hearings rather
than crediting them against the lump sum arrearage;
(7) ordered a lump sum repayment of the child support
arrearage rather than permitting repayment on a peri-
odic basis as contemplated by the child support arrear-
age guidelines; and (8) failed to dismiss the plaintiff’s
motion for contempt rather than considering the merits
of the motion. We conclude that the defendant’s claim
regarding the manner in which he was credited for
voluntary child support payments is moot because there
is no practical relief that we could order in light of the
fact that he has received full credit for such payments,
and that the arguments advanced in support of the
remainder of the defendant’s claims are unpersuasive.
Accordingly, we affirm the judgments of the court.
The following facts and procedural history are rele-
vant to our resolution of these appeals.4 The parties
were married in 2001. The defendant is a plastic surgeon
with offices in New York, Norwalk, and London, as well
as a consultant and a professor of plastic surgery. The
plaintiff is college educated and worked in pharmaceuti-
cal sales until shortly after she married the defendant, at
which time she worked for the defendant in his medical
practice. The parties have three minor children
together, one of whom has special needs.5 Prior to their
marriage, the parties entered into a premarital
agreement that, in relevant part, limited the plaintiff’s
alimony in the event of divorce to $50,000 a year for
five years and allocated 45 percent of the value of the
marital home to the plaintiff as her share of marital
property. In September, 2012, the plaintiff initiated an
action to dissolve the parties’ marriage.
On May 26, 2015, the court, Tindill, J., approved an
agreement by the parties to enter into binding media-
tion/arbitration of the dissolution action.6 Pursuant to
the parties’ arbitration agreement, which was made an
order of the court, ‘‘[t]he parties agree[d] that the fol-
lowing issues in their action for dissolution of marriage
shall be the subject of mediation and, if the parties are
unable to resolve these issues via mediation, to binding
arbitration . . . .’’ The list of issues to be resolved in
arbitration included the validity and enforceability of
the premarital agreement; the validity of an alleged
rescission of that premarital agreement; a determina-
tion of alimony in accordance with General Statutes
§ 46b-82; an equitable division of marital property,
assets, and liabilities pursuant to General Statutes
§ 46b-81; division of attorney’s fees and guardian ad
litem fees; and any other relief deemed appropriate by
the arbitrator ‘‘except as it pertains to child custody
and issues of child support.’’
On August 4, 2015, the arbitrator, former Superior
Court Judge Elaine Gordon, issued her arbitration
award. As a preliminary matter, the arbitrator deter-
mined that the parties’ premarital agreement was
unconscionable, and thus unenforceable, due to ‘‘the
present, uncontemplated circumstances’’ of the par-
ties.7 The arbitrator issued a number of orders regarding
alimony and the distribution of marital assets, including
an order directing the sale of the marital home. In sup-
port of her orders, the arbitrator made several factual
findings, including that ‘‘[t]he defendant’s annual
[gross] income is found to be approximately $400,000
per year based on his income tax returns, business
financial statements and the information he has pro-
vided to lending institutions on his applications.’’ As
previously noted, the arbitration award indicated that
‘‘[t]he issues of custody, access, child support, mainte-
nance and cost of medical insurance for minor children
and unreimbursed medical expenses are reserved to
the Connecticut Superior Court.’’8
On September 1, 2015, the defendant filed a motion
asking the court to confirm the arbitration award and
to render judgment dissolving the parties’ marriage in
accordance with the arbitration award. On that same
date, the plaintiff filed a motion asking the court to
issue orders on the unresolved matters of child support
and postsecondary educational expenses. Neither party
filed an objection to the other party’s motion, and the
matters were set down for a hearing on October 23,
2015. At that time, the court rendered a judgment of
dissolution of marriage that incorporated by reference
the arbitration award and subsequent clarification.9 The
parties agreed that the court would determine the defen-
dant’s child support obligations, including the issue of
unreimbursed medical expenses and child care, after an
evidentiary hearing, and that child support obligations
would be made retroactive to the date of dissolution.
The court conducted an evidentiary hearing on the
issue of child support and on certain other postjudg-
ment motions of the parties beginning on December
23, 2015, and continuing to January 22, May 25, June
20 and June 29, 2016. Both parties were present at
all hearings and represented by counsel. Both parties
testified and submitted a number of exhibits into
evidence.
On December 7, 2016, the court issued a memoran-
dum of decision regarding child support. The court indi-
cated that it carefully had reviewed the parties’ various
claims for relief, memoranda in support thereof, trial
briefs, replies, evidence, testimony, relevant rules, stat-
utory authority, case law, and the arguments of counsel.
The court made a number of credibility determinations
and factual findings, including that neither party ‘‘was
credible regarding their expenses for the children’’ and
that ‘‘[t]he defendant’s testimony and evidence regard-
ing his sources of income was not credible.’’ The court
found that, ‘‘[b]ased on the credible evidence before
the court, the defendant has a gross annual income of
$560,637—$400,000 gross income from employment as
Dr. K Services, P.C., plus $160,637 of rental income
from various real estate investments.’’ The court also
found that ‘‘[t]he parties’ combined net weekly income
is $7990’’ and, thus, that ‘‘[t]he parties’ net weekly
income exceeds the $4000 limit contained within the
child support guidelines.’’ The court calculated that
‘‘[f]or three children, the presumptive amount of child
support is between $824 and $1564 per week . . . .’’10
The court ordered that the defendant ‘‘shall pay
$1500.00 per week in child support for the parties’ three
children, retroactive to October 23, 2015 . . . .’’
(Emphasis added.) The court also ordered that the
plaintiff is responsible for 25 percent of any unreim-
bursed medical expenses and child care, and the defen-
dant is responsible for the remaining 75 percent.
Moreover, ‘‘[t]he [d]efendant shall be given credit for
the $18,432.41 in voluntary, postjudgment child support
payments made from the date of the dissolution through
June 30, 2016.’’ The court instructed the defendant that
if he claimed any additional support payments after
June 30, 2016, he should provide the plaintiff’s counsel
with proof of those payments within one week of the
court’s order. The court stated that credit for the volun-
tary support payments ‘‘shall be in the form of a deduc-
tion from current support in equal payments over the
course of one year.’’ (Emphasis added.) In other words,
given that there are fifty-two weeks in a year, the defen-
dant would be entitled to reduce his $1500 child support
obligation each week for the first year by an amount
equal to one fifty-second of his total voluntary postjudg-
ment child support payments. Finally, the court ordered
that the defendant ‘‘shall continue to provide and main-
tain health, dental, and vision insurance for the minor
children,’’ and ‘‘shall maintain insurance on his life in
the amount of $2,000,000, naming the three minor chil-
dren as equal beneficiaries, for as long as he has a child
support obligation to the twins.’’
On December 23, 2016, the defendant filed a motion
to reargue the court’s December 7, 2016 decision in
which he claimed that the court had miscalculated his
income for purposes of the support orders. Specifically,
he argued that the arbitrator had found his gross annual
income to be $400,000, the court had adopted that find-
ing in its judgment of dissolution when it incorporated
the arbitration award therein and, therefore, ‘‘the court
should not have added on top of that figure rental
income that was already included in the total annual
income finding of $400,000.’’11 Furthermore, he argued
that the court had failed to reduce his net income by the
amount he had paid in premiums for the life insurance
policy benefiting the children. The court denied the
motion to reargue on December 29, 2016, without com-
ment. The defendant also filed a motion for clarification
requesting, inter alia, that the court set forth ‘‘the man-
ner and method’’ it used to calculate the defendant’s
gross income. The court denied that motion in part.
On December 12, 2016, the plaintiff filed a motion
for contempt claiming that a child support arrearage
of $91,000 existed because the court had made the
defendant’s child support obligation retroactive to the
date of dissolution. The plaintiff argued that the defen-
dant should have paid the arrearage from money that
the court had ordered released from an escrow account
to the defendant.12 In response, the defendant filed an
objection to the plaintiff’s motion for contempt, arguing
that there was never a clear and unambiguous court
order requiring him to immediately pay any child sup-
port arrearage arising from the December 7, 2016
orders. Accordingly, he argued that the motion for con-
tempt should be denied and that he was entitled to
attorney’s fees for having to defend against a frivo-
lous motion.
The court held a hearing on the motion for contempt
on January 3, 2017. The following day, the court issued
an order denying the motion for contempt, explaining
that the plaintiff had failed to meet her burden of prov-
ing by clear and convincing evidence that the defendant
wilfully had violated a court order. The court neverthe-
less took the opportunity to enter a remedial order
requiring the defendant to pay the $91,000 child support
arrearage to the plaintiff, in full, by no later than April
12, 2017.13 The court also denied the defendant’s request
for attorney’s fees. These appeals followed.
We begin by stating the overarching and well settled
standard that governs our review of claims in divorce
actions. ‘‘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
[evidence] presented. . . . It is within the province of
the trial court to find facts and draw proper inferences
from the evidence presented. . . . 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.
. . . [T]o conclude that the trial court abused its discre-
tion, we must find that the court either incorrectly
applied the law or could not reasonably conclude as it
did. . . . Appellate review of a trial court’s findings of
fact is governed by the clearly erroneous standard of
review. . . . 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.’’ (Emphasis added; internal quotation
marks omitted.) Milazzo-Panico v. Panico, 103 Conn.
App. 464, 467–68, 929 A.2d 351 (2007). ‘‘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 . . . .’’ (Internal quotation marks omit-
ted.) Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d
449 (2013).
I
The defendant first claims that, in determining his
annual income for the purpose of child support, the
court was bound by the factual findings of the arbitrator
as set forth in the arbitration award and incorporated
by reference into the court’s judgment of dissolution.
He argues that the court’s finding that he had a total
gross annual income of $560,637 was inconsistent with
the prior finding of the arbitrator that his gross annual
income was $400,000, and, therefore, the court’s finding
was clearly erroneous. According to the defendant,
because the court’s child support orders were based
on an erroneous factual finding, this court should order
them set aside. The plaintiff responds that a trial court
is not bound to accept the factual findings in an arbitra-
tor’s award when determining an issue that was specifi-
cally excluded by the parties from arbitration and
expressly reserved to the Superior Court by the award
and by statute. We agree with the plaintiff and, accord-
ingly, reject the defendant’s claim.
Stated succinctly, the issue before us is whether the
arbitrator’s factual finding regarding gross income,
which was made in the context of determining alimony
and other issues submitted to arbitration, is entitled to
preclusive effect in the court’s subsequent adjudication
of child support, an issue that was expressly excluded
from arbitration by General Statutes § 52-408, which
excludes from the scope of arbitration in dissolution
actions ‘‘issues related to child support,’’ and the par-
ties’ arbitration agreement. In arguing that the trial
court was required to adopt the arbitrator’s findings of
fact regarding the parties’ gross income, the defendant
relies on the deference that courts generally have
afforded to arbitration decisions and also, by implica-
tion, invokes the doctrine of collateral estoppel or
issue preclusion.
The defendant’s arguments require us to engage in
statutory interpretation of § 52-408, which presents a
question of law over which our review is plenary. See
Smith v. Smith, 249 Conn. 265, 272, 752 A.2d 1023(1999). ‘‘[W]hen construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine the meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Internal quotation marks omitted.) Sosin v. Sosin, 300
Conn. 205, 227–28, 14 A.3d 307 (2011).
We begin by examining the text of § 52-408, which
legislatively sanctions the use of arbitration in civil
actions, including actions for the dissolution of mar-
riage. The statute provides in relevant part: ‘‘[A]n
agreement in writing between the parties to a marriage
to submit to arbitration any controversy between them
with respect to the dissolution of their marriage, except
issues related to child support, visitation and custody,
shall be valid, irrevocable and enforceable, except when
there exists sufficient cause at law or in equity for the
avoidance of written contracts generally.’’ (Emphasis
added.) General Statutes § 52-408.
The statute’s use of the term ‘‘issues related to child
support’’ is both broad and unqualified. For example,
the statute does not distinguish between legal and fac-
tual issues. The absence of such qualifying language
conveys the legislature’s intent to render inarbitrable
not only a final determination of a party’s child support
obligations but any and all related issues, both legal
and factual, that pertain to such a determination.
Our child support guidelines are based on an income
share model; see Child Support and Arrearage Guide-
lines (2015), preamble, § (d); meaning an accurate and
complete determination of the parties’ respective
incomes is essential to ensure that adequate resources
are directed toward affected children. Because a finding
of the parties’ income is a mandatory prerequisite to
the determination of a child support order, it is indisput-
ably an ‘‘issue related to child support,’’ and such a
finding cannot be conclusively determined by an arbi-
trator for purposes of calculating child support under
the clear and unambiguous language of § 52-408. The
defendant offers no analysis of § 52-408 in asserting that
the arbitrator’s factual finding regarding the defendant’s
income should be binding on a court determining child
support obligations.14
Even if we were not convinced that the exclusionary
provision of § 52-408 is clear and unambiguous as to
its scope, our interpretation is consistent with extrinsic
evidence of the legislature’s intent, including circum-
stances surrounding the enactment of the provision at
issue, the policy it was intended to implement, and its
relationship to common-law principles. The language
in § 52-408 excluding from arbitration issues related to
child support was added to the statute by the legislature
in 2005.15 See Public Acts 2005, No. 05-258, § 2 (P.A. 05-
258). The exclusionary language is consistent with the
importance that this state attaches to accurate and equi-
table determinations of child support as reflected in
our child support guidelines.16 Although it is true that
the promulgation of our child support guidelines, which
are applicable to all determinations of child support,
‘‘substantially circumscribe[d] the traditionally broad
judicial discretion of the court in matters of child sup-
port’’; (internal quotation marks omitted) Maturo v.
Maturo, 296 Conn. 80, 116, 995 A.2d 1 (2010); the court
nevertheless retains discretion to deviate from those
guidelines if it determines that doing so ‘‘would be in
the best interests of the child and financially equitable
to the parties.’’ Id.Custody and support issues not only impact the
divorcing parents but also significantly impact the
future health and welfare of children for whom child
support is intended to benefit. In Guille v. Guille, 196
Conn. 260, 262–64, 492 A.2d 175 (1985), our Supreme
Court discussed the independent nature of a child’s
right to support and held that this right cannot be viti-
ated or circumscribed by way of an agreement between
the parents. In Guille, the court first recognized that
General Statutes § 46b-84 (a) imposes a duty on divorc-
ing parents to ‘‘maintain the child according to their
respective abilities, if the child is in need of mainte-
nance.’’ Id., 263. In the court’s view, this statutory duty
‘‘creates a corresponding right in the children to such
support.’’ (Internal quotation marks omitted.) Id. The
court in Guille also emphasized that although child
support orders are ‘‘made and enforced as incidents to
divorce decrees . . . the minor children’s right to
parental support has an independent character, sepa-
rate and apart from the terms of the support obligations
as set out in the judgment of dissolution.’’ (Citation
omitted; internal quotation marks omitted.) Id.
‘‘The independent nature of a child’s right to parental
support [had been] recognized by [our Supreme Court]
long before that right was codified in our statutes.’’ Id.
As an example, the court in Guille cited to its decision
in Burke v. Burke, 137 Conn. 74, 80, 75 A.2d 42 (1950),
in which it stated: ‘‘A husband and wife cannot make
a contract with each other regarding the maintenance
or custody of their child which the court is compelled
to enforce, nor can the husband relieve himself of his
primary liability to maintain his child by entering into
a contract with someone else to do so. The welfare of
the child is the primary consideration. The court may
recognize the contract, but such contract will not be
enforced longer than it appears to be for the best inter-
ests of the child, and parents entering into such a con-
tract are presumed to do so in contemplation of their
obligations under the law and the rights of the child.’’
(Internal quotation marks omitted.) Guille v. Guille,
supra, 196 Conn. 264.
In the arbitration agreement in the present case, the
list of issues to be resolved included the validity and
enforceability of the premarital agreement; the validity
of an alleged rescission of that premarital agreement;
a determination of alimony; an equitable division of
marital property; and attorney’s fees and guardian ad
litem fees. The resolution of those issues could not
‘‘affect the minor children’s right . . . for parental
maintenance’’; id., 267; and extending the impact of the
parent’s resolution of nonsupport issues would violate
the statutory prohibition against arbitrating child sup-
port. Furthermore, it would be inconsistent with our
concerns for the best interest of children, an ideal that
permeates our statutes and decisional law, to permit
issues related to child support to be resolved conclu-
sively in arbitration, a nonjudicial forum outside the
control of our courts. See, e.g., Masters v. Masters, 201
Conn. 50, 64–65, 513 A.2d 104 (1986) (‘‘the ultimate
responsibility for determining and protecting the best
interests of children in family disputes rests with the
trial court and not with the parties to a dissolution
action’’).17
There is no doubt that ‘‘[t]he courts of this state
encourage arbitration as a means of alternative dispute
resolution . . . .’’ Scinto v. Sosin, 51 Conn. App. 222,
227, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963,
724 A.2d 1125 (1999). They have ‘‘for many years whole-
heartedly endorsed arbitration as an effective alterna-
tive method of settling disputes intended to avoid the
formalities, delay, expense and vexation of ordinary
litigation. . . . When arbitration is created by contract,
we recognize that its autonomy can only be preserved
by minimal judicial intervention. (Internal quotation
marks omitted.) Stutz v. Shepard, 279 Conn. 115, 124,
901 A.2d 33 (2006). ‘‘The parties themselves, by the
agreement of the submission, define the powers of the
arbitrator. . . . The submission constitutes the charter
of the entire arbitration proceedings and defines and
limits the issues to be decided.’’ (Internal quotation
marks omitted.) Naek Construction Co. v. Wilcox Exca-
vating Construction Co., 52 Conn. App. 367, 370, 726
A.2d 653 (1999). ‘‘[If] the submission does not otherwise
state, the arbitrators are empowered to decide factual
and legal questions and an award cannot be vacated
on the grounds that . . . the interpretation of the
agreement by the arbitrators was erroneous. . . .
[Generally], courts will not review the evidence consid-
ered by the arbitrators nor will they review the award
for errors of law or fact.’’ (Internal quotation marks
omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn.
72, 80, 881 A.2d 139 (2005).
Nevertheless, although binding arbitration may be
utilized to resolve many types of issues arising in the
course of civil litigation, including in a marital dissolu-
tion action, the legislature concluded, as a matter of
public policy, that issues involving custody, visitation,
and child support must be resolved only by a court.
This court previously has indicated that if a court has
a statutorily mandated duty to decide an issue, it would
be an improper delegation of judicial authority to permit
that issue to be resolved through binding arbitration,
particularly because of the limited opportunity for judi-
cial review of arbitration awards. See Nashid v.
Andrawis, 83 Conn. App. 115, 121–22, 847 A.2d 1098(plain error to permit future disputes regarding custody
and visitation to be decided in arbitration), cert. denied,
270 Conn. 912, 853 A.2d 528 (2004).
We simply are not persuaded that in an adjudication
of child support following binding arbitration, a court
must give preclusive effect to extrajudicial factual find-
ings, particularly if the correctness of those findings is
so integral to a resolution of an issue expressly excluded
from arbitration in accordance with both § 52-408 and
the parties’ arbitration agreement. In other words, any
findings the arbitrator made in disposing of the claims
submitted had no effect on the court’s duty to make an
independent determination of the parties’ child support
obligation, unfettered by the findings of the arbitrator.
Because a determination as to the proper amount of
child support hinges almost entirely on a correct calcu-
lation of the parties’ income, and it is the stated policy
of this state that issues of child support be decided only
by the court, it would run contrary to that policy to
require the court to defer to findings of income made
by an arbitrator, who was not tasked with considering
the parties’ incomes for that purpose.18 Said another
way, the court’s reliance on income findings of the
arbitrator in determining child support obligations
would constitute an impermissible delegation of judicial
authority, something we previously have concluded
amounts to plain error. See id.
We conclude that, although the court incorporated
the arbitration award by reference into the dissolution
judgment, it does not follow that the court was bound
by every factual finding contained in the award in
determining the defendant’s child support obligation.
In exercising its important and independent statutory
obligation to determine child support—an issue
important not only to the parties but to the children
meant to benefit from such orders—the court was not
legally bound by the arbitrator’s factual findings regard-
ing gross income. To hold otherwise could undermine
the court’s function to ensure that children receive an
adequate level of support, and that concern outweighs
any policy cautioning against judicial interference with
arbitration. Accordingly, we reject the defendant’s
claim that the court was bound by the factual finding of
the arbitrator regarding the defendant’s gross income.
II
The defendant next claims that even if the court was
not legally bound by the arbitrator’s finding with respect
to his gross income, the court’s finding that the defen-
dant earned $400,000 in gross income from employment
was clearly erroneous. The plaintiff counters that the
court’s finding was correct and fully supported by the
record. Because there is evidence in the record that
supports the court’s finding, we conclude that the find-
ing was not clearly erroneous.
‘‘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.
. . . Because it is the trial court’s function to weigh
the evidence and determine credibility, we give great
deference to its findings. . . . In reviewing factual find-
ings, [w]e do not examine the record to determine
whether the [court] could have reached a conclusion
other than the one reached. . . . Instead, we make
every reasonable presumption . . . in favor of the trial
court’s ruling.’’ (Emphasis added; internal quotation
marks omitted.) Hammel v. Hammel, 158 Conn. App.
827, 832–33, 120 A.3d 1259 (2015).
The defendant argues that the record contains no
evidence that would support the court’s finding that he
earned $400,000 in gross income from his employment,
and, therefore, the finding is clearly erroneous. He indi-
cates that his financial affidavit submitted into evidence
listed his gross income earned from employment as
$360,000. He further notes that his 2015 income tax
return, which was submitted into evidence, states that
he earned $170,541 in gross income from employment.
As our standard of review makes clear, however, the
existence of evidence that is contrary to the court’s
finding is not dispositive of whether the court’s finding
is clearly erroneous.
The trial court, in its role as the trier of fact, was not
bound by the financial numbers contained in either
party’s financial affidavits and was free to assess the
credibility of the parties with respect to the reliability
of evidence proffered to establish income. See Olson
v. Olson, 71 Conn. App. 826, 834, 804 A.2d 851 (2002).
The court was free to make findings that differed from
the parties’ positions, provided that evidence existed
to support such findings. Here, the court expressly indi-
cated in its memorandum of decision that it found the
evidence presented by the defendant regarding his
income not credible and untruthful. See Billington v.
Billington, 27 Conn. App. 466, 469, 606 A.2d 737 (con-
tours of determination of credibility uniquely shaped
by trial court and not reviewable on appeal), cert.
denied, 224 Conn. 906, 615 A.2d 1047 (1992). Moreover,
contrary to the defendant’s assertion on appeal, our
review of the record reveals evidence from which the
court reasonably could have determined that the defen-
dant’s gross income from employment was at least
$400,000.19
First, the plaintiff testified during the hearing that
she was aware of the defendant’s earnings during the
course of their marriage. She testified that he had three
sources of income from employment: his medical prac-
tice, consulting for medical companies, and teaching.
In part, her knowledge of his earnings came from her
having worked as the business administrator for the
defendant’s medical practice, in which capacity she had
access to payroll documents. She testified that the
defendant’s salary was $16,000 every two weeks, which
amounts to a yearly income from employment of
$416,000.
Second, the plaintiff offered into evidence a con-
sumer credit application that the defendant completed
in connection with a lease he obtained in March, 2016,
for a new BMW automobile. On the application, the
defendant disclosed in the employment section of the
application that his employer’s name was Dr. K Ser-
vices, P.C., and that his gross annual income from
employment was $400,000.
Given that the true measure of the defendant’s
income was highly contested, and that the trial court
found that the defendant’s presentation of his finances,
including income, was misleading, the court relied on
other evidence in the record. There was certainly evi-
dence, including the defendant’s admission on the auto-
mobile application, that his income from employment
was $400,000. Because the finding is supported by evi-
dence and we are not left with any firm conviction that
a mistake was made, we conclude that the trial court’s
finding was not clearly erroneous.
III
The defendant’s third claim is that, in calculating
his gross income, the court improperly determined the
amount of gross rental income he received from prop-
erty awarded to him as part of the division of marital
assets. We are not persuaded.
‘‘The [child support] guidelines worksheet is based
on net income; weekly gross income is listed on the
first line on the worksheet, and the subsequent lines
list various deductions, including federal income tax
withheld and social security tax. . . . The guidelines
are used by the court to determine a presumptive child
support payment, which is to be deviated from only
under extraordinary circumstances. . . . Our regula-
tions define ‘gross income’ as ‘the average weekly
earned and unearned income from all sources before
deductions, including but not limited to the items listed
in subparagraph (A) of this subdivision, but excluding
the items listed in subparagraph (B) of this subdivision.’’
(Citation omitted; emphasis added.) Giordano v. Gior-
dano, 153 Conn. App. 343, 356–57, 101 A.3d 327 (2014),
citing Regs., Conn. State Agencies § 46b-215a-1 (11).
One item expressly included in subparagraph (A) is
‘‘rental income after deduction of reasonable and neces-
sary expenses . . . .’’ Regs., Conn. State Agencies
§ 46b-215a-1 (11) (A) (xiv). Any challenge to the court’s
factual findings regarding rental income is subject to
our clearly erroneous standard of review.
Although the defendant acknowledges that the child
support guidelines permit the inclusion of rental income
in the calculation of gross income, he argues that the
court failed to ‘‘delineate how the court arrived at the
figure of $160,637.’’ He also argues that ‘‘[n]owhere in
the record can there be found any indication of how
the court arrived at the figure of $160,637 or whether
the court deducted reasonable and necessary expenses
from any such rental income.’’ (Emphasis omitted.) Fur-
ther, the defendant notes that the court’s rental income
figure matches the total found in a chart that the plaintiff
prepared and attached to her posttrial brief, which, as
the defendant correctly maintains, was never submitted
into evidence during the hearing.
The court did not provide a detailed explanation of
how it arrived at its calculation of rental income. After
it set forth its findings regarding the defendant’s total
gross income, however, it did indicate the evidentiary
basis for its finding, citing to the plaintiff’s exhibits 7
and 13, and the defendant’s testimony of May 25 and
June 29, 2016. Exhibit 13 is a copy of the defendant’s
2015 individual tax return. Schedule E of that return
contains details of the income and expenses associated
with the rental properties awarded to the defendant in
the judgment of dissolution. Although the defendant
maintains that the court improperly utilized the rental
income chart that the plaintiff prepared and attached
to her posttrial brief, which was never made an exhibit
at the hearing, the chart references the defendant’s 2015
tax return, which was an exhibit, and the numbers con-
tained in the chart merely reflect figures contained in
that tax return. The figures from the 2015 tax return,
as used on the plaintiff’s chart, were easily verified by
the court by comparing the chart’s figures with those
on the tax return. Accordingly, we conclude that a suffi-
cient evidentiary basis for the court’s rental income
finding exists.
Finally, the defendant argues that both the plaintiff’s
chart and the court’s conclusion regarding rental
income do not comport with the evidence presented
because they disregard and omit from their calculation
two properties that generated substantial losses.
According to the defendant, if those properties were
considered, his net rental income would have been sub-
stantially lower.
The plaintiff argues, however, that those properties
were sold prior to the child support hearing, and thus
any effect that the losses from those properties had on
total rental income in 2015 were properly disregarded
in calculating future income for the purposes of
determining child support. The defendant does not dis-
pute that assertion in his reply brief and fails to explain
why it would be improper for the court to consider only
properties that would generate income in the future in
calculating income on which to base his prospective
child support obligations. On the basis of our review,
we conclude that the court’s calculation and inclusion
of rental income in its determination of the defendant’s
total gross income was not clearly erroneous.
IV
In the defendant’s fourth claim, he asserts that the
court improperly failed to take into account his payment
of life insurance premiums in calculating his gross
income. The plaintiff responds that the defendant failed
to provide the court with information regarding life
insurance premiums and that the court properly
accounted for all insurance premium payments brought
to the attention of the court and reflected in the record.
We agree with the plaintiff.
The following additional facts are relevant to this
claim. The defendant testified that he maintained two
life insurance policies that provided a total of $4,000,000
in coverage.20 According to the defendant, the premiums
for those policies were paid by his medical practice, and
those payments were attributable to him as additional
income. The life insurance policies are listed on the
defendant’s financial affidavit, which also includes as
a personal expense his monthly life insurance premiums
of $1053. The premium payment amounts are not bro-
ken out per policy. The child support guidelines work-
sheet submitted by the defendant to the court did not
include any deduction for life insurance premiums, pre-
sumably because the defendant objected to the plain-
tiff’s claim for relief requesting that the court order him
to maintain $2,000,000 in life insurance for the benefit
of the children. He argued that he would not be able
to maintain his existing policies once they expired and
that it would be financially unfeasible or overly burden-
some for him to obtain new policies as a sixty-four year
old man.
The court made the following order with respect to
life insurance: ‘‘The defendant shall maintain insurance
on his life in the amount of $2,000,000, naming the three
minor children as equal beneficiaries, for as long as he
has a child support obligation to the twins.’’ The court’s
calculation of net income for the purposes of child
support, which is set forth on the court’s child support
guidelines worksheet attached as the court’s exhibit 1
to the court’s memorandum of decision, deducts $406
from the defendant’s gross weekly income for premi-
ums paid for the children’s medical and dental insur-
ance. Although the worksheet also contains a line for
deducting the premium paid for ‘‘court-ordered life
insurance for benefit of child,’’ the court indicated $0
on that line.
The defendant stood to benefit from any reduction in
his gross income attributable to life insurance premium
payments. As such, he bore the burden to produce what-
ever evidence was necessary for the court to calculate
this deduction. Our review of the record, however,
including the exhibits and testimony offered during the
hearing, show that the defendant never provided the
court with a breakdown of his existing premium pay-
ments for the $4,000,000 in life insurance coverage he
disclosed on his financial affidavits, including how the
amount of premiums paid for those policies was appli-
cable to the court’s calculation of life insurance neces-
sary to secure the defendant’s child support obligation,
an amount of insurance that was significantly less.
Although he indicated on his financial affidavit a
monthly personal expense for life insurance of $1053,
he lists several insurance policies with no details of the
policies’ beneficiaries or premium payments per policy.
Because the court had no evidentiary basis from which
to calculate a credit against his income for a $2,000,000
life insurance policy benefiting the children, we cannot
conclude that the court’s failure to include a credit in
calculating net income was a clear abuse of discretion.
V
The defendant next claims that the court improperly
failed to explain the basis for exercising its discretion
to order child support in an amount that exceeded the
child support guidelines’ presumptive minimum. The
question presented by this claim is whether the court
is required to articulate why it chose the specific
amount of child support that it did if that amount falls
within the range of the minimum and maximum pre-
sumptive support amounts. We conclude that there is
no such requirement and, accordingly, reject the defen-
dant’s claim.
‘‘The question of whether, and to what extent, the
child support guidelines apply . . . is a question of law
over which this court should exercise plenary review.’’
Misthopoulos v. Misthopoulos, 297 Conn. 358, 367, 999
A.2d 721 (2010). Further, whether the court is legally
obligated to articulate the basis for a child support
award also poses a legal question that invokes our de
novo review. ‘‘It has long been established that the
guidelines, as promulgated by a commission empow-
ered pursuant to legislation enacted in 1989; see Public
Acts 1989, No. 89-203; were intended to substantially
[circumscribe] the traditionally broad judicial discre-
tion of the court in matters of child support.’’ (Internal
quotation marks omitted.) Ray v. Ray, 177 Conn. App.
544, 563, 173 A.3d 464 (2017).
‘‘[T]he . . . guidelines shall be considered in all
determinations of child support amounts within the
state and . . . the guidelines consist of the Schedule of
Basic Child Support Obligations as well as the principles
and procedures set forth [therein].’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 563–64. Addition-
ally, ‘‘[t]he 2015 guidelines codified developments in
recent cases decided by the Supreme Court and this
court regarding the consideration of child support order
amounts whenever the parties’ combined net weekly
income exceeds $4000.’’ Id., 564; see also Child Support
and Arrearage Guidelines, supra, preamble, § (e) (5),
p. ix.
‘‘[I]n awarding child support, a court must consider
and apply statutory child support and arrearage guide-
lines unless application of the guidelines is inequitable
or inappropriate under the circumstances.’’ Lusa v.
Grunberg, 101 Conn. App. 739, 741, 923 A.2d 795 (2007).
‘‘To enter child support orders that deviate from the
presumptive support amount, the court must make spe-
cific findings on the record to explain its reasons for
doing so.’’ Id. ‘‘[A]ny deviation from the schedule or the
principles on which the guidelines are based must be
accompanied by the court’s explanation as to why the
guidelines are inequitable or inappropriate and why the
deviation is necessary to meet the needs of the child.’’
Maturo v. Maturo, supra, 296 Conn. 95–96.
‘‘In Maturo, [our Supreme Court] . . . concluded
that when a family’s combined net weekly income
exceeds $4000, the court should treat the percentage
set forth in the schedule at the highest income level as
the presumptive ceiling on the child support obligation,
subject to rebuttal by application of the deviation crite-
ria enumerated in the guidelines, as well as the statutory
factors described in § 46b-84 (d).’’ (Internal quotation
marks omitted.) Misthopoulos v. Misthopoulos, supra,297 Conn. 369–70. Our Supreme Court later clarified
that ‘‘as long as the child support award is derived from
a total support obligation within this range—between
the presumptive minimum dollar amount and the pre-
sumptive maximum percentage of net income—a find-
ing in support of a deviation is not necessary.’’
(Emphasis added.) Dowling v. Szymczak, 309 Conn.
390, 402, 72 A.3d 1 (2013).
The child support guidelines provide that when the
combined weekly net income of the parents is $4000,
the presumptive minimum of child support for three
children is $824 a week. As indicated previously, the
maximum is calculated by multiplying the combined
weekly income by the applicable percentage, which in
this case is 20.61 percent. Regs., Conn. State Agencies
§ 46b-215a-2c. Here, there is no dispute that the amount
of support ordered by the court fell within the range
between the presumptive minimum and maximum
amounts permitted under the child support guidelines.
Because the court did not deviate from the guidelines,
the court was not required to articulate statutory devia-
tion criteria.
In his appellate brief, the defendant relies on language
in § 46b-215a-2c that provides as follows: ‘‘When the
parents’ combined net weekly income exceeds $4000,
child support awards shall be determined on a case-by-
case basis, consistent with statutory criteria, including
that which is described in subsection (d) of section
46b-84 of the Connecticut General Statutes.’’ Regs.,
Conn. State Agencies § 46b-215a-2c (a) (2). General
Statutes § 46b-84 (d) provides that ‘‘[i]n 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, earn-
ing capacity, amount and sources of income, estate,
vocational skills and employability of each of the par-
ents, and the age, health, station, occupation, educa-
tional status and expectation, amount and sources of
income, vocational skills, employability, estate and
needs of the child.’’ The defendant reads the regulatory
language as mandating that a court articulate why it
is ordering any amount falling within the presumptive
minimum and maximum support provided in the guide-
lines and notes that ‘‘[n]owhere in the memorandum of
decision does the court indicate that it considered the
statutory criteria of [§ 46b-84 (d)] in deciding where
within $824 per week . . . and $1580 per week . . .
child support should fall.’’
Although the statutory language requires that child
support awards shall be consistent with statutory crite-
ria, it does not ‘‘mandate that a court articulate why’’
it is ordering an amount consistent with the criteria.
‘‘In accordance with the statutory directives set forth
in General Statutes § 46b-215b (a), the guidelines
emphasize that the support amounts calculated there-
under are the correct amounts to be ordered by the
court unless rebutted by a specific finding on the record
that such an amount would be inequitable or inappropri-
ate.’’ Maturo v. Maturo, supra, 296 Conn. 92. In this
case, the child support award was within the range
established by the guidelines, and the defendant made
no argument that the amount ordered was inequitable
or inappropriate. Further, there is nothing in the record
from which we can conclude that the court’s decision
was not made with consideration of the criteria set
forth in § 46b-84 (d).
In making its orders and findings of fact, the court
conducted an extensive evidentiary hearing and
reviewed the parties’ various claims for relief, memo-
randa in support thereof, trial briefs, replies, evidence,
testimony, relevant rules, statutory authority, case law,
and the arguments of counsel. Notably, these findings
pertained to the health and educational needs of the
children, as well as the parties’ ages, health, educational
status, employability, earning capacities, and sources
of income. The court calculated that, in this case, the
maximum amount of child support per week was $1564.
The actual amount of child support ordered by the court
was $1500 per week. Because the child support order
was consistent with statutory criteria and within the
range between minimum and maximum support
amounts established by the guidelines, we find no abuse
of discretion in the court’s ruling. Further, because no
deviation from the guidelines occurred, the court was
not required to provide any additional explanation for
its decision. In sum, the trial court did not abuse its
discretion in rendering its December 7, 2016 child sup-
port orders.
VI
We turn next to those claims challenging the court’s
order requiring the defendant to make a lump sum pay-
ment of $91,000 to the plaintiff to satisfy a child support
arrearage that resulted from the court’s December 7,
2016 order making his child support obligation retroac-
tive to the date of dissolution. The defendant first claims
that in calculating the $91,000 child support arrearage,
the court failed to credit properly the voluntary child
support payments that he made to the plaintiff during
the pendency of the child support proceedings. Specifi-
cally, the defendant maintains that the court was obli-
gated to subtract the amount of the voluntary payments
directly from the amount of the arrearage, rather than
providing him with credit for the voluntary payments
by temporarily reducing his child support obligations
for a period moving forward. The plaintiff responds
that the defendant’s claim is moot because the court
accounted for and fully credited the defendant for all
child support voluntarily paid by permitting the defen-
dant to reduce his future child support obligations pro-
portionally over the first year, and the defendant availed
himself of that remedy. The plaintiff further argues that
even if the claim is not moot, it fails on its merits
because the court acted well within its discretion in
crafting the remedy provided. We agree with the plain-
tiff that because the defendant reduced his weekly child
support obligation in accordance with the court’s order
and, thus, has now received full credit for his voluntary
child support payments, this court cannot provide the
defendant with any practical relief by reviewing this
claim. Accordingly, we dismiss the claim as moot.
‘‘Mootness implicates [the] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve . . . . It is a well-settled general rule that the
existence of an actual controversy is an essential requi-
site to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . Because mootness implicates subject matter juris-
diction, it presents a question of law over which our
review is plenary.’’ (Internal quotation marks omitted.)
Schull v. Schull, 163 Conn. App. 83, 98–99, 134 A.3d
686, cert. denied, 320 Conn. 930, 133 A.3d 461 (2016).
The defendant does not challenge the total amount
of the arrearage ordered by the court, having stipulated
that the amount owed was $91,000. He also raises no
claim that he was entitled to a greater amount of credit
on the basis of the voluntary payments made during
the pendency of the child support proceedings. It is
simply the form of the credit that the defendant takes
issue with, maintaining that the court should have
applied his voluntary child support payments directly
against the arrearage and arguing that most courts that
have addressed similar situations have applied volun-
tary payments to reduce directly any arrearage.21 Never-
theless, because the defendant has now received full
credit for his voluntary payments, there is no practical
relief that could flow from our determination of whether
he should have received that credit as an offset to the
lump sum payment rather than as a reduction in his
future child support payments. Even if we were to deter-
mine that the court abused its discretion in the manner
in which it credited the voluntary payments, we cannot
formulate a remedy that would effectively rewind the
clock in this case. Any decision would be purely aca-
demic at this point because it would not alter the
existing status quo, namely, that the defendant has
received full credit for those voluntary payments he
made. This claim, accordingly, is dismissed as moot.
VII
The defendant next claims that the court improperly
ordered him to pay a lump sum to satisfy the child
support arrearage rather than permitting him to satisfy
that arrearage on a weekly basis, as contemplated by the
child support arrearage guidelines. The plaintiff argues
that the defendant’s claim is frivolous because, although
the guidelines prescribe the manner in which a court
generally must calculate periodic payment of a child
support arrearage, the court nevertheless retains discre-
tion to order a lump sum payment. We agree with
the plaintiff.
Whether the court was required to utilize the arrear-
age calculation formula set forth in the child support
arrearage guidelines is a legal question over which our
review is plenary. Although the preamble to the child
support and arrearage guidelines is not part of the offi-
cial regulations, and thus not binding on this court, we
find it persuasive in resolving the defendant’s claim.
See Maturo v. Maturo, supra, 296 Conn. 92–93 (noting
preamble is not part of regulations but is intended to
assist in their interpretation). Specifically, section (i)
of the preamble discusses the arrearage guidelines and
their intended applicability, providing in relevant part:
‘‘[General Statutes § 46b-215a] requires the develop-
ment of guidelines for orders of payment on arrearages.
Such guidelines are to be based on the obligor’s ability
to pay. The commission interprets the statute to apply
only to the determination of periodic payments, and so
does not address in the regulations the determination
of lump sum payments, which determination remains
subject to the discretion of the judge or family support
magistrate.’’ Child Support and Arrearage Guidelines,
supra, preamble, § (i), p. xix. This same position is also
reflected in the regulations themselves. Subsection (a)
of 46b-215a-3a, which governs the scope of the arrear-
age guidelines, provides in relevant part that the arrear-
age guidelines ‘‘shall be used to determine periodic
payments on child support arrearages . . . . The
determination of lump sum payments remains subject
to the discretion of the judge or family support magis-
trate, in accordance with existing law.’’ Thus, the guide-
lines have no applicability to orders requiring lump sum
payment of arrearages, nor do the guidelines in any
way curtail a trial court’s discretion to order a lump
sum payment, provided that the court determines that
the obligor has the ability to comply with the order.
General Statutes § 46b-215a (a) (‘‘orders of payment on
any arrearage and past due support shall be based on
. . . the obligor’s ability to pay’’).
In the present case, the court articulated that it
ordered the $91,000 lump sum arrearage payment in
the present case because it determined that the defen-
dant had the ability to pay, given his current income
and other finances, including the court’s release to the
defendant of $100,000 held in escrow at the time it
issued its child support orders. The court indicated
that it had released the funds specifically to aid the
defendant in meeting his child support obligations. In
short, the defendant has failed to demonstrate that the
arrearage guidelines were applicable to the lump sum
order or that the court abused its discretion in ordering
a lump sum rather than periodic payments. Accordingly,
this claim fails.
VIII
Finally, the defendant claims that rather than having
denied the plaintiff’s motion for contempt on its merits,
which resulted in the remedial order requiring the
defendant to pay the arrearage that arose out of the
court’s retroactive order of child support, the court
should have dismissed the plaintiff’s motion for con-
tempt in its entirety. According to the defendant,
because the court’s child support order did not contain
any express calculation of an arrearage owed by the
defendant as a result of the child support order’s retro-
activity or an order directing the defendant to pay such
an arrearage by a date certain, there was no factual
basis for a motion for contempt. The defendant asserts
on appeal, therefore, that the plaintiff’s motion for con-
tempt failed to state a proper claim for contempt and
also failed to comply with the specific requirements of
Practice Book § 25-27.22 Because the defendant’s spe-
cific claim that the trial court should have dismissed
the motion for contempt was not raised before the trial
court, we decline to review it for the first time on appeal.
In the defendant’s objection to the motion for con-
tempt, he challenged the merits of the motion by arguing
that he had not violated any clear and unambiguous
order because the court never stated precisely when
or how the arrearage should be paid. The defendant’s
objection asked the trial court to deny the motion for
contempt, which the court did, apparently for the rea-
sons stated by the defendant. The defendant never
asked the court to strike or dismiss the motion, either
on the basis of the motion’s legal or factual insufficienc-
ies or on the ground that the motion did not comply with
our rules of practice. As we have stated on numerous
occasions, we will not entertain a claim or legal theory
raised for the first time on appeal. ‘‘[A] party cannot
present a case to the trial court on one theory and then
seek appellate relief on a different one . . . . The the-
ory upon which a case is tried in the trial court cannot
be changed on review . . . [much like] an issue not
presented to or considered by the trial court cannot be
raised for the first time on review.’’ (Citation omitted;
internal quotation marks omitted.) Corrarino v. Corrar-
ino, 121 Conn. App. 22, 30, 993 A.2d 486 (2010). We
therefore decline to review this claim.
The judgments are affirmed.
In this opinion the other judges concurred.
* October 23, 2018, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Specifically, the arbitrator’s award stated in relevant part: ‘‘The issues
of custody, access, child support, maintenance and cost of medical insurance
for the minor children and unreimbursed medical expenses are reserved to
the Connecticut Superior Court.’’
2
On June 19, 2017, this court granted the defendant’s motion to consolidate
his two appeals in accordance with Practice Book § 61-7 (b) (3).
3
The defendant also asserted that the court had failed to deduct health
insurance premiums but, in his reply brief, concedes to the contrary, with-
drawing that aspect of his claim.
4
We rely on those facts set forth by the court in its memoranda of decision
and those that are undisputed in the record.
5
The parties have twin daughters who were born in May, 2003, and a
younger daughter who was born in February, 2006.
6
At that time, the parties also submitted a final custody and parenting
plan that was made an order of the court. Pursuant to the parenting plan,
the parties would have joint legal custody of their minor children, and the
plaintiff would have primary physical custody subject to periodic visitations
with the defendant.
7
The arbitrator stated in relevant part: ‘‘To leave the plaintiff, who has
no experience in a competitive workplace after thirteen years, with no
assets, an alimony award of five years, which is unrelated to either the
plaintiff’s needs or the defendant’s income, and responsibility for three
children, one of whom has special needs, is more than unfair or onerous,
it is unconscionable.’’
8
In response to requests by the parties, the arbitrator later issued a
clarification of her award, the substance of which is not relevant to the
issues on appeal.
9
In its dissolution judgment, the court also reserved jurisdiction over the
issue of postmajority educational support.
10
In his posthearing brief, the defendant argued that the court should
conclude that his share of the presumptive child support amount, as calcu-
lated pursuant to the guidelines, was $727 per week. The plaintiff, in her
posthearing brief, argued that the defendant’s share of presumptive child
support under the guidelines was $1560 per week, but she sought an upward
deviation to $2028 per week due, in part, to her claim that all three children
had special needs.
11
We note that throughout the evidentiary hearing on the issue of child
support, both parties presented evidence pertaining to the defendant’s gross
income. Such evidence would have been unnecessary if the court legally
was bound to credit the factual findings of gross income contained in the
arbitrator’s award. The defendant, however, never asserted such a position
during the hearing on child support. Although the defendant’s counsel raised
tentative objections during the hearing indicating that the defendant’s earn-
ing capacity had been determined by the arbitrator, at no point did the
defendant directly state to the trial court that he believed that the court
legally was bound by the arbitrator’s factual findings of income in resolving
the issue of child support.
To the contrary, in his posthearing brief, instead of arguing that the
arbitrator’s finding regarding the defendant’s gross income was binding on
the court, he argued that the arbitrator had overstated his gross income
and asked the trial court to make its own finding for the purpose of calculat-
ing child support. Presumably, if the finding of the arbitrator was binding
on the court, as the defendant now argues on appeal, the trial court would
have had no more authority to find a lower amount of income than it had
to find a higher amount. As we have expressed on a number of occasions,
we generally disfavor permitting an appellant to take one legal position at
trial and then take a contradictory position on appeal. ‘‘[O]rdinarily appellate
review is not available to a party who follows one strategic path at trial
and another on appeal, when the original strategy does not produce the
desired result. . . . To allow the [party] to seek reversal now that his trial
strategy has failed would amount to allowing him to induce potentially
harmful error, and then ambush the [opposing party and the court] with
that claim on appeal.’’ (Internal quotation marks omitted.) Nweeia v. Nweeia,
142 Conn. App. 613, 620, 64 A.3d 1251 (2013).
Furthermore, we note that the doctrine of collateral estoppel, i.e., issue
preclusion, ‘‘is neither statutorily nor constitutionally mandated. The doc-
trine, rather, is a judicially created rule of reason that is enforced on public
policy grounds.’’ (Internal quotation marks omitted.) Cumberland Farms,
Inc. v. Groton, 262 Conn. 45, 58–59, 808 A.2d 1107 (2002). In order to take
advantage defensively of the doctrine, it ordinarily should be pleaded or
otherwise brought to the attention of the court. See, e.g., Practice Book
§ 10-50. The defendant made no assertion regarding the binding nature of
the arbitrator’s finding in the present case until the postjudgment motion
to reargue, which was filed after the court had made an independent finding
regarding gross income that did not favor the defendant. Nevertheless,
because the plaintiff has not argued that the defendant either forfeited or
waived his right to challenge the preclusive nature of the arbitrator’s factual
finding regarding gross income, and the issue was raised by the defendant
to the trial court in his motion to reargue the child support order and
implicitly rejected by the trial court, we will review the claim.
12
As part of its December 7, 2016 orders, the court ordered $100,000 from
the sale of the marital home that was being held in escrow at the time by
the defendant’s attorney as security released to the defendant within two
business days.
13
The trial court later issued an articulation setting forth the factual and
legal bases for its January 3, 2017 order. In its articulation, the court stated
that ‘‘[t]he [defendant’s] testimony and evidence regarding his sources and
amount of income, debts, assets, and liabilities was not credible,’’ and ‘‘[t]he
information on the [defendant’s] sworn financial affidavits . . . regarding
his earnings and expenses was not truthful.’’ (Citations omitted.) The court
also stated that it had released the $100,000 in escrowed funds to the defen-
dant in order to give him ‘‘additional funds’’ from which to pay the child
support arrearage that arose as a result of the court’s December 7, 2016
support orders and to meet his child support obligations moving forward.
(Emphasis omitted.) The court noted that ‘‘despite having the financial
means and access to liquid pecuniary resources, [the defendant had] paid
$0.00 toward the $91,000 arrearage he does not dispute existed.’’ (Emphasis
in original.) Regarding the legal bases for its decision, the court indicated
that it considered whether the defendant had the ability to pay by the date
specified in the court’s order and determined that he did, on the basis of
his actual employment income, his earning capacity, liquid assets, equity in
several real estate interests and investments, and retirement funds. The
court further stated that it had relied on General Statutes § 46b-84 and § 46b-
215a-3a of the child support and arrearage guidelines effective July 1, 2015.
14
We note that other states have adopted statutes permitting the arbitra-
tion of marital dissolution actions, including issues of custody and child
support. As part of those statutes, however, such states have provided
for more robust judicial oversight of arbitration awards than ordinarily is
available under existing law. See, e.g., Harvey v. Harvey, 470 Mich. 186,
193–94, 680 N.W.2d 835 (2004) (court had authority under statute to modify
arbitrator’s award to ensure best interests of children). The absence of
such explicit oversight in § 52-408 is additional evidence that our legislature
intended that all issues pertaining to child support and custody be reserved
to the Superior Court.
15
Similar language also was added to General Statutes § 46b-66, which
now provides in relevant part: ‘‘The provisions of [General Statutes § 52-
408 et seq.] 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 . . . .’’ (Emphasis added.) General
Statutes § 46b-66 (c).
16
Having reviewed the legislative history of P.A. 05-258, we note that the
vast majority of public comments, mostly from members of the bar, sup-
ported adoption of the bill, many citing favorably to the bill’s exclusion of
issues related to child support, custody, and visitation because of the need
for ‘‘careful supervision of those issues’’ by the court and the ‘‘state’s special
interest’’ in child support.
In support of the act, then Senator Andrew J. McDonald stated: ‘‘Mr.
President, this bill is intended to make available to individuals who are
becoming involved in a dissolution action an opportunity to voluntarily enter
into an arbitration proceeding for the purposes of resolution of that disso-
lution.
‘‘Mr. President, the bill excludes from the scope of permissible arbitration
any consideration of custody or child support payments within the scope
of the arbitration referral.’’ (Emphasis added.) 48 S. Proc., Pt. 8, 2005 Sess.,
p. 2272.
17
To the extent that our Supreme Court in Masters v. Masters, supra, 201
Conn. 64–65, stated that some issues related to child support might be
arbitrable, we note that Masters was decided prior to the enactment of § 52-
408. Accordingly, that statement in Masters has been superseded by statute.
18
Our analytical approach finds support in the Restatement (Second) of
Judgments, which provides useful guidance regarding whether findings made
by arbitrators should be binding on courts in subsequent proceedings. Sec-
tion 84 of the Restatement (Second) provides that courts generally should
afford a valid and final arbitration award ‘‘the same effects under the rules
of res judicata, subject to the same exceptions and qualifications, as a
judgment of a court.’’ 2 Restatement (Second), Judgments § 84 (1), p. 286
(1982). Nevertheless, there are several notable exceptions to that rule. In
particular, § 84 (3) provides in relevant part: ‘‘A determination of an issue
in arbitration does not preclude relitigation of that issue if: (a) [a]ccording
preclusive effect to determination of the issue would be incompatible with
a legal policy or contractual provision that the tribunal in which the issue
subsequently arises be free to make an independent determination of the
issue in question . . . .’’ As provided in the commentary to § 84, ‘‘[i]t is
coherent to treat an arbitration proceeding as wholly self-contained, conclu-
sive as to the claims represented in the award but inoperative beyond them.’’
(Emphasis added.) Id., § 84, comment (c), p. 289. Further, ‘‘[a] dispute may
be governed by an arbitration agreement but also be subject to statutory
provisions for alternative or supplementary procedures. The conclusive
effect of an arbitration award is subordinate to such provisions.’’ Id., § 84,
comment (g), p. 291. The approach of the Restatement (Second) is consistent
with our Supreme Court’s instruction that ‘‘[t]he doctrines of preclusion
. . . should be flexible and must give way when their mechanical application
would frustrate other social policies based on values equally or more
important than the convenience afforded by finality in legal controversies.’’
(Internal quotation marks omitted.) Delahunty v. Massachusetts Mutual
Life Ins. Co., 236 Conn. 582, 591, 674 A.2d 1290 (1996); id., 592 (holding
application of res judicata to bar party from bringing postdissolution action
claiming damages for misconduct occurring during marriage would be inap-
propriate given competing policy considerations).
19
The trial court’s finding of $560,637 in gross income included as a base
component $400,000 in gross income from employment, which is the same
amount the arbitrator set forth as the defendant’s gross income. The arbitra-
tor’s award does not break down the components of that figure or indicate
whether her finding also incorporated rental income. Thus, the trial court’s
finding of $560,637 in total gross income, rather than being a wholly inconsis-
tent factual finding from that made by the arbitrator, might simply reflect
a more complete representation of the defendant’s total gross income. It is
not necessary, however, for us to resolve the apparent conflict between the
arbitrator’s finding and the trial court’s finding in order to conclude that
the trial court’s finding was supported by evidence in the record and, thus,
was not clearly erroneous.
20
The defendant also maintained a separate $500,000 life insurance policy
benefiting a former wife from an earlier marriage.
21
It is axiomatic that trial courts have ‘‘wide discretion and broad equitable
power to fashion relief in the infinite variety of circumstances which arise
out of the dissolution of a marriage.’’ (Internal quotation marks omitted.)
Parisi v. Parisi, 315 Conn. 370, 381, 107 A.3d 920 (2015). Even if we were
to conclude that the present claim was not moot and assumed for the sake
of argument that the defendant’s observation regarding credits for voluntary
payments is an accurate one, the mere fact that trial courts may more often
directly credit voluntary payments to reduce an arrearage is an insufficient
factual basis to support a conclusion that a court that elects not to follow
that procedure, as in the present case, has abused its discretion. The defen-
dant has cited no authority that would convince us otherwise.
22
Practice Book § 25-27 (a) provides: ‘‘Each motion for contempt must
state (1) the date and specific language of the order of the judicial authority
on which the motion is based; (2) the specific acts alleged to constitute the
contempt of that order, including the amount of any arrears claimed due
as of the date of the motion or a date specifically identified in the motion;
(3) the movant’s claims for relief for the contempt.’’