Callahan, C. J., and Norcott, Katz, McDonald and Peters, Js.
The defendant, whose marriage to the plaintiff had been dissolved,
appealed from the judgment of the trial court modifying his child
support obligation. He claimed, inter alia, that that court
incorrectly interpreted the definition of gross income set forth in
the child support guidelines when it included in his gross income
contributions made by his domestic partner toward their shared
living expenses. Held:
1. Contrary to the claim made by the defendant, the trial court's
inclusion of the domestic partner's regular contributions in the
defendant's income did not contravene the guidelines' preclusion
of consideration of the income of a subsequent spouse or domestic
partner in calculating child support; consideration of those
contributions was in accord with existing law that recognizes that
gifts received on a regular and consistent basis, regardless of
their source, are includible in income in the context of
dissolution proceedings where financial orders are being determined
because they increase the amount of the recipient's income that is
available for support purposes; furthermore, including the value of
gifts from a subsequent spouse or domestic partner does not have
the effect of imputing liability to that individual because the
donor is entitled to cease making gifts at any time, at which time
the parent could seek a modification based on the resulting loss of
income, consideration of past gifts does not entail the necessity
of probing into the personal financial affairs of persons with no
involvement in the marital dispute itself, the inclusion of those
gifts would not be likely to result in diversion of the donor's
resources from the donor's own obligations, because otherwise the
gifts would not have been made, and, finally, had the commission
for child support guidelines intended to exclude gifts from gross
income, it would have done so expressly.
2. The trial court abused its discretion in ordering the defendant
to pay $1000 per month in arrearage, an amount that equalled
approximately 92 percent of his weekly support obligation and
exceeded the guideline limiting that amount to 20 percent; that
court did not calculate the presumptively correct support order
pursuant to the guidelines, did not make a specific finding on the
record that application of the general rule would be inequitable or
inapprpriate under the circumstances and did not include a
justification for the variance.
3. The defendant could not prevail on his claim that the trial
court abused its discretion in failing to consider the earning
capacity of the plaintiff on the basis of a prior job that required
her to work sixty to seventy hours a week including some hours on
weekends; earning capacity is relevant only to a determination of
whether to deviate from the guidelines, and, from the evidence
presented, that court could reasonably have concluded that the
plaintiff was employed at full capacity and that no deviation from
the guidelines was justified.
4. The trial court did not abuse its discretion in ordering the
defendant to pay a portion of the plaintiff's attorney's fees; the
trial court could reasonably have concluded that the award of
attorney's fees was warranted on the basis of the statutory (§ 46b-62) criteria and this court's prior interpretations of that
section.
PROCEDURAL HISTORY
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial district of
Hartford-New Britain at Hartford and tried to the court, Barall,
J.; judgment dissolving the marriage and granting certain other
relief; thereafter, the court, N. Rubinow, J., granted the
defendant's motion for modification of child support and the
plaintiff's motion for attorney's fees and denied the plaintiff's
application for a contempt citation and entered orders accordingly,
and the defendant appealed; subsequently, the court, N. Rubinow,
J., granted the plaintiff's motion for attorney's fees to defend
the appeal, and the defendant filed an amended appeal. Reversed in
part; further proceedings.
Gerald A. Roisman, with whom, on the brief, was Edith F.
McClure, for the appellant (defendant).
John Q. Gale, for the appellee (plaintiff).
KATZ, J. The issues to be decided in this appeal are whether: (1) in modifying the defendant's child support obligation, the trial court properly considered contributions made by the defendant's domestic partner toward their shared living expenses as an element of the defendant's gross income under the Child Support and Arrearage Guidelines (guidelines);See footnote 1 (2) the trial court abused its discretion in ordering the defendant to pay $1000 per month in arrearage payments, in addition to his child support obligation of $252 per week; (3) the trial court abused its discretion by not considering the plaintiff's earning capacity in determining the parties' respective child support obligations; and (4) the trial court abused its discretion in awarding attorney's fees to the plaintiff for expenses incurred in the underlying action and on appeal. The defendant, John Thomas McNary, appeals from the postjudgment orders of the trial court modifying his child support obligation and awarding attorney's fees to the plaintiff, Linda Joyce Unkelbach, in connection with the postjudgment proceedings. After receiving notice of the defendant's appeal, the plaintiff filed a second motion for allowance of attorney's fees seeking an allowance with which to defend the appeal. The trial court, after a hearing, granted the motion and the defendant amended his appeal to include an appeal of that order. We transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199 (c).
The facts that are relevant to this appeal are not disputed.
The parties' marriage was dissolved on February 1, 1988. The
separation agreement ordered into effect by the court on that date
awarded primary physical custody of the parties' two minor children
to the plaintiff, and ordered the defendant to pay child support in
the amount of $375 per week. At the time of dissolution, the
defendant earned a gross weekly wage of $1778.85, and the plaintiff
earned a gross weekly wage of $74.40.
As of January 1, 1995, the defendant unilaterally ceased
making his court ordered child support payments and, instead, began
to make payments that were smaller in amount and sporadic in
occurrence. On February 23, 1995, the plaintiff filed a motion for
contempt based upon the defendant's failure to pay the child
support as ordered. Shortly thereafter, on March 1, 1995, the
defendant filed a motion for modification of his child support
obligation. The court issued an interim order reducing the
defendant's child support to $108 per week, and the parties, with
the approval of the court, agreed that any permanent modification
of child support would date back to March 1, 1995.
In the fifteen months prior to the time when the defendant
ceased making the initial court-ordered child support payments, a
number of changes in his circumstances occurred. In October, 1993,
his employment was terminated as a result of company downsizing,
and he was provided with fifty weeks of severance pay at his full
salary rate. He received his last severance check in October,
1994. From approximately October, 1994, through May, 1995, he
experienced health problems for which he was twice hospitalized and
underwent two surgeries. In July, 1995, the defendant applied for
and subsequently received twenty-six weeks of unemployment
compensation. Eventually, in April, 1996, he began to receive
pension distributions from his former employer in the gross amount
of $311 per week.
Following the termination of his employment, the defendant
formed a business known as Construction Consultants and Managers,
Inc. (Construction Consultants). In 1995, he transferred his
interest in the business to Joan Shoham, his domestic companion,
for the purpose of obtaining minority-owned business status in
order to enhance the company's ability to obtain contract work.
Both the defendant and his companion receive compensation from
Construction Consultants, although limited in amount. As of
October, 1996, the defendant was receiving $202 per week in gross
compensation from Construction Consultants, and Shoham had received
a total of $7200 for the year to that date. The trial court found
that there was insufficient evidence to determine accurately how
much compensation, if any, would redound to the defendant from
Construction Consultants in the future, but noted that the success
of the business had thus far been limited.
The defendant and Shoham, who have lived together in the
defendant's home for approximately the past eight years, commingle
their personal incomes to a certain extent and use a joint bank
account to pay for household expenses. The trial court found that
since October, 1995, Shoham's personal funds have been the source
of all monthly mortgage payments on the defendant's home, all
monthly payments on the defendant's home equity loan, all monthly
loan payments on the defendant's automobile, and all periodic
payments for home electricity, cable service, natural gas service,
telephone service, property taxes on the residence, groundskeeping,
and groceries. Shoham testified that she makes these payments as
gifts to the defendant and does not expect to be reimbursed by him.
Since the dissolution of the parties' marriage, the plaintiff
has been employed on a full-time basis. From November, 1994, until
November, 1995, she was employed as a branch director and
supervisor for a home nursing care provider, at a salary of
approximately $60,000 per year. The plaintiff voluntarily left
that employment because it involved long hours that she felt
interfered with her responsibilities as the primary caretaker of
the parties' minor children. Thereafter, she obtained employment
requiring her to work only between the hours of 8:30 a.m. and 4
p.m. at a salary of approximately $41,000 per year, or a gross
income of $800 per week.
In considering the defendant's motion for modification of his
child support obligation, the trial court concluded that a
substantial change in circumstances had occurred affecting the
ability of each of the parties to provide support for their minor
children. The court concluded that the defendant had established
his inability to comply with the original child support order due
to changes in his health and employment. Although the court found
that the defendant's capacity to earn income in the future had not
diminished, it did not, as a result, deviate from the guidelines in
setting the amount of his child support obligation. Instead, in
accordance with its finding of a substantial change in
circumstances, the court modified the defendant's child support
obligation from $375 per week to $252 per week. The court also
ordered the defendant to pay $1000 per month in child support
arrearage payments, and awarded the plaintiff attorney's fees in
the amount of $1000. Subsequently, the court awarded an additional
$3250 in attorney's fees to the plaintiff for the purpose of
defending the appeal.
In deciding upon the modified amount of child support to be
ordered, the court considered the defendant's present ability to
pay. In that regard, it found that the defendant's gross income
included amounts contributed by Shoham toward their household
expenses. Recognizing that Shoham shared in the value of most of
her contributions toward the household expenses, the court found
the value of Shoham's contributions to the defendant to be $514 per
week, or one half of their actual value, with the exception of the
amount paid toward the defendant's automobile loan, which the court
included in full in its calculations.See footnote 2
The defendant first claims that the trial court incorrectly
interpreted the definition of gross income set forth in the
guidelines when it included in his gross income contributions made
by Shoham toward their shared living expenses. According to the
defendant, the definition of gross income should not be read to
include such contributions because the guidelines preclude
consideration of the income of a subsequent spouse or domestic
partner in calculating child support, and the inclusion of the
contributions leads, in effect, to consideration of Shoham's
income. The plaintiff argues, conversely, that including the
contributions in the defendant's gross income is not the same as
including Shoham's actual income, but only amounts to consideration
of specific gifts regularly made by her and, therefore, does not
contravene the guidelines. In that regard, the plaintiff contends
that inclusion of the contributions in income is in accord with the
existing law of this state, which recognizes that gifts received on
a regular and consistent basis, regardless of their source, are
includible in income in the context of dissolution proceedings
where financial orders are being determined. We agree with the
plaintiff.
Resolution of this issue requires us to interpret the
statutory scheme that governs child support determinations in
Connecticut, and, therefore, constitutes a question of law.
Charles v. Charles, 243 Conn. 255, 258, 701 A.2d 650 (1997).
"[W]here the legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct and
whether they find support in the facts set out in the memorandum of
decision . . . ." (Internal quotation marks omitted.) Keeney v.
Old Saybrook, 237 Conn. 135, 143, 676 A.2d 795 (1996). When the
question of law involves statutory interpretation, that
determination is guided by well settled principles. We have
previously stated that in construing statutes, "[o]ur fundamental
objective is to ascertain and give effect to the apparent intent of
the legislature. . . . In seeking to discern that intent, we look
to the words of the statute itself, to the legislative history and
circumstances surrounding its enactment, to the legislative policy
it was designed to implement, and to its relationship to existing
legislation and common law principles governing the same general
subject matter. . . ." (Citations omitted; internal quotation
marks omitted.) Conway v. Wilton, 238 Conn. 653, 663-64, 680 A.2d
242 (1996).
We begin with a brief overview of the guidelines. The
guidelines are predicated upon the concept that children should
receive the same proportion of parental income that they would have
received had the family remained intact. Child Support and
Arrearage Guidelines, Preamble, § (c), pp. ii-iii. Toward that
end, the guidelines are income driven, rather than expense driven.
At each income level, the guidelines allocate a certain percentage
of parental income to child support. The percentage allocations
contained in the guidelines aim to reflect the average proportions
of income spent on children in households of various income and
family sizes, and contain a built-in self-support reserve for the
obligor. Id., §§ (c) and (d), pp. ii-iii. The result is that the
guidelines incorporate an allocation of resources between parents
and children that the legislature has decided is the appropriate
allocation. Consequently, our interpretation of the guidelines
must seek to preserve this allocation.
The definition of gross income set forth in the guidelines
does not address explicitly contributions or gifts given by a
subsequent spouse, domestic partner, or any other third party, to
a parent whose child support obligation is being determined.
Section 46b-215a-1 (11) of the Regulations of Connecticut State
Agencies defines gross income as "the average weekly income before
deductions."See footnote 3 That section further identifies twelve specific
elements of gross income and provides that "[g]ross income
includes, but is not limited to" those items. Regs., Conn. State
Agencies § 46b-215a-1 (11) (A). In addition, that regulation
expressly excludes two items from the definition of gross income,
namely, child support received on behalf of a child living with the
parent for whom the support obligation is being determined, and
federal, state and local public assistance grants. Regs., Conn.
State Agencies § 46b-215a-1 (11) (B). Although this definition
does not specifically identify contributions or gifts received from
a subsequent spouse, domestic partner, or other third party as an
item expressly included in gross income, the definition does
provide that the items expressly enumerated do not comprise an
exhaustive list. Regs., Conn. State Agencies § 46b-215a-1 (11)
(A). Gifts are also not mentioned in the list of items that are
expressly excluded from gross income under subsection (11) (B) of
the regulation. Therefore, while the issue of whether gifts are
includible in income is not resolved by reference to the definition
of gross income alone, it is clear that, by its plain language, the
definition does not preclude their inclusion.
The guidelines are preceded by a preamble that "is intended to
assist users of the child support and arrearage guidelines but is
not part of the official regulations." Child Support and Arrearage
Guidelines, Preamble, § (a), p. i. The preamble explains the
concept of gross income contained in the guidelines, but, like the
definition, does not address contributions or gifts made by third
parties to parents. The preamble addresses the actual income of a
subsequent spouse or domestic partner, and makes clear that such
income is not included in the definition of gross income. Child
Support and Arrearage Guidelines, Preamble, § (f) (1) (F), p. ix.
It does not, however, indicate expressly that contributions or
gifts from a subsequent spouse, domestic partner, or other third
party, are intended to be excluded from gross income under the
guidelines.
We have previously interpreted broadly the definition of gross
income contained in the guidelines to include items that, in
effect, increase the amount of a parent's income that is available
for child support purposes. In Jenkins v. Jenkins, 243 Conn. 584,
704 A.2d 231 (1998), we held that social security dependency
benefits received directly by the children of a noncustodial parent
on account of that parent's disability must be included in the
noncustodial parent's income for purposes of determining the
parent's child support obligation. We reasoned that, because the
guidelines provide for a credit against the child support
obligation in the amount of the benefits paid directly to the
children, the noncustodial parent benefits by having an obligation
discharged, thereby enabling him to retain more income for himself.
We also reasoned in part that the failure to include the social
security dependency benefits in the noncustodial parent's gross
income would lead to a result that is inconsistent with the public
policy underlying the guidelines -- namely, the policy, when
determining child support obligations, of accounting for all income
that would have been available to support the children had the
family remained intact. Therefore, we required that the benefits
be included in gross income under the guidelines.
Similarly, in other proceedings emanating from the dissolution
of a marriage, our approach has been to interpret the concept of
income broadly so as to include in income items that increase the
amount of resources available for support purposes. In cases
concerning alimony, we have indicated that regularly and
consistently received gifts, whether in the form of contributions
to expenses or otherwise, are properly considered in determining
alimony awards to the extent that they increase the amount of
income available for support purposes.See footnote 4
In Rubin v. Rubin, 204 Conn. 224, 225, 527 A.2d 1184 (1987),
for example, a husband appealed from an order granting his former
wife a contingent assignment of property related to certain assets
that he was expected to acquire under his mother's will and
revocable trust.See footnote 5 This court determined that the order could not
be sustained either as an assignment of property or as an award of
alimony. Id., 227-28. In so concluding, this court did not decide
that evidence relating to the husband's mother's wealth was
inadmissible in regard to the alimony determination.
Distinguishing between a contingency, such as the possibility of a
future inheritance, and evidence of substantial gratuities received
in the past, this court indicated that evidence of the latter is
admissible in formulating financial orders relating to dissolution
of marriage. Id., 238-39. "[W]here the past gratuities have been
made on a regular basis . . . the court may reasonably assume that
those contributions will continue. If they should terminate, any
. . . award may be modified." Id.; see also Anderson v. Anderson,
191 Conn. 46, 55-57, 463 A.2d 578 (1983) (trial court properly
considered fact that one party regularly and consistently received
substantial gratuities from relatives in past when it formulated
financial orders relating to dissolution of marriage); McGuinness
v. McGuinness, 185 Conn. 7, 12-13, 440 A.2d 804 (1981) (insofar as
plaintiff's second wife's income was relevant to plaintiff's
current expenses and ability to pay alimony it was properly
considered).
To the extent that they are indicative of the approach we have
adopted in the past -- interpreting gross income broadly so as to
include items that increase the amount of income available for
support purposes -- our prior cases addressing child support and
alimony are significant, because the same effect that compelled
those decisions is present in this case. Here, the regular
contributions made by Shoham increase the amount of the defendant's
income that is available for support purposes.
The defendant relies primarily upon the public policy embodied
in the preamble to the guidelines for his argument that the
contributions should not be included in gross income. The preamble
provides that the commission for child support guidelines
(commission), which promulgated the guidelines, decided not to
include the income of a subsequent spouse or domestic partner in
the definition of gross income contained in the guidelines because
the inclusion of such income "inevitably leads to extremely complex
calculations, especially if the spouse or partner has his or her
own child support obligations," and because "there is under
Connecticut law no legal basis for imputing support liabilities to
such a [third party]." Child Support and Arrearage Guidelines,
Preamble, § (f) (1) (F), p. ix. The defendant argues that this
policy is contravened when contributions toward a parent's living
expenses made by a parent's domestic partner are included in the
parent's income because the domestic partner in effect becomes a
source of support for the children of the parent's prior marriage.
We disagree.
The inclusion of regularly received gifts in a parent's income
differs significantly from the inclusion of the income of a
subsequent spouse or domestic partner. First, including the value
of gifts received from a subsequent spouse or domestic partner does
not have the effect of imputing liability to that individual. A
domestic partner whose own actual income is at issue has only two
options if he or she seeks to have that income excluded from the
parent's gross income. He or she must choose between terminating
the income generating activity or altering the relationship with
the parent in order to prevent the inclusion of his or her income
in the parent's gross income. In this situation, however, no such
problem is presented. A donor is entitled to cease making gifts at
any time and, at such time as that occurs, the parent may seek a
modification of the child support obligation based upon the
resulting reduction in income, without penalty to either the parent
or the donor. Therefore, no liability may be imputed to a third
party donor based upon the inclusion of the gifts made by the donor
in the recipient's gross income.
Second, the inclusion of regularly and consistently received
gifts does not lead to the extremely complex calculations that the
commission sought to avoid when it decided against including a
subsequent spouse's or domestic partner's income in the definition
of gross income. As this court stated in Rubin, "evidence of past
gratuities does not inevitably entail the necessity of probing into
the personal financial affairs of persons who have no other
involvement in the marital dispute before the court than their
relationship to one of the parties." Rubin v. Rubin, supra, 204
Conn. 239.
Third, the inclusion of contributions and other gifts in gross
income is not likely to result in a diversion of the donor's
resources from the donor's own obligations or dependents. We
logically may presume, based upon the fact that the donor has
chosen to make the gifts, that the donor is financially able to do
so. Conversely, if the resources used to make the gifts were
needed to provide for the third party's own needs or the needs of
the third party's dependents, we may presume that the gifts would
not have been made.
Finally, the fact that the commission decided to make clear in
the preamble that gross income does not include the income of a
subsequent spouse or domestic partner, but did not discuss any
other exemptions from gross income, indicates that regularly and
consistently received gifts were not intended to be excluded from
gross income. The guidelines, both in the preamble and in the
definition section, § 46b-215a-1 of the Regulations of Connecticut
State Agencies, contain express exclusions from an otherwise broad
definition of gross income. Therefore, there is no basis for
reading the exclusion contained in the preamble broadly. In fact,
to do so would be inconsistent with our established policy of
reading broadly the definition of gross income. If the commission
had intended to exclude gifts from gross income, it could have done
so expressly. The fact that it did not supports our
interpretation.
The legislative policy underlying the guidelines further
supports an interpretation of gross income that includes gifts that
are regularly and consistently received. As we have already noted,
the guidelines are predicated upon the concept that children should
receive the same proportion of parental income that they would have
received had the family remained intact. Child Support and
Arrearage Guidelines, Preamble, § (c), pp. ii-iii. At each income
level, they allocate a certain percentage of parental income to
child support. The allocations are intended to reflect the average
proportion of income that, theoretically, would be spent on
children in intact families, and contain built-in self-support
reserves for obligors. Id., §§ (c) and (d), pp. ii-iii. In
situations like the present one, the failure to include the
contributions of the parent's domestic partner leads to an
allocation between parent and child that is proportionately at odds
with the allocation contemplated by the guidelines. Here, the
defendant, rather than being required to spend a certain proportion
of his weekly income on his own support needs, instead has nearly
all of his income available for other purposes. The guidelines,
however, being income driven, do not contain an expense category
wherein the benefit received by the defendant may be reflected.See footnote 6
As a result, the only way in which to reflect the economic reality
of the defendant's situation, and thereby arrive at an allocation
of resources between parent and child that is consistent with the
guidelines, is to include the contributions in income for child
support determination purposes.
For all of the above reasons, we conclude that the trial court
properly included in the defendant's gross income the contributions
made by his domestic partner toward his living expenses when it
determined his child support obligation under the guidelines.
The defendant's remaining claims all allege an abuse of
discretion by the trial court. Specifically, the defendant
contends that the trial court abused its discretion when it: (1)
ordered him to pay $1000 per month in arrearage despite his limited
income; (2) found the plaintiff to be employed at full capacity
although she had earned considerably more income in an earlier
year; and (3) awarded attorney's fees to the plaintiff without
first finding either that she was unable to pay her own attorney's
fees or that requiring the plaintiff to pay her own fees would
undermine the effect of the court's other financial orders.
"As has been repeatedly stated by this court, judicial review
of a trial court's exercise of its broad discretion in domestic
relations cases is limited to the questions of whether the [trial]
court correctly applied the law and could reasonably have concluded
as it did." (Internal quotation marks omitted.) Holley v. Holley,
194 Conn. 25, 29, 478 A.2d 1000 (1984). "Our function in reviewing
such discretionary decisions is to determine whether the decision
of the trial court was `clearly erroneous in view of the evidence
and pleadings in the whole record.' Practice Book § 4061 [now
Practice Book (1998 Rev.) § 60-5]." Turner v. Turner, 219 Conn.
703, 709, 595 A.2d 297 (1991). "With respect to the financial
awards in a dissolution action, great weight is given to the
judgment of the trial court because of its opportunity to observe
the parties and the evidence. Moreover, the power to act equitably
is the keystone to the court's ability to fashion relief in the
infinite variety of circumstances which arise out of the
dissolution of a marriage." (Internal quotation marks omitted.)
Holley v. Holley, supra, 29. For that reason, "we allow every
reasonable presumption in favor of the correctness of [the trial
court's] action." (Internal quotation marks omitted.) Charpentier
v. Charpentier, 206 Conn. 150, 154-55, 536 A.2d 948 (1988).
We first address the defendant's claim that the trial court
abused its discretion in ordering him to pay $1000 per month in
arrearage. The defendant argues that the $1000 per month amount
contravenes the guidelines, which prescribe that, as a general
rule, arrearage payments are to be set at 20 percent of the current
weekly support amount. Because the payment equals approximately 92
percent of the defendant's weekly support obligation, and the trial
court did not find that any of the deviation criteria applied to
justify the departure from the general rule, the defendant argues
that the trial court abused its discretion in ordering the payment.
We agree.
Arrearage payments are addressed at length and in extensive
detail in the guidelines, and as a result the trial court's
discretion in setting arrearage payments is closely circumscribed
by the breadth of the law that it must apply. In this case, our
conclusion that the trial court abused its discretion is based upon
the fact that it did not substantiate its decision by making the
explicit findings in the record that are expressly required by the
guidelines. Its failure to do so constitutes an incorrect
application of the law, and, therefore, an abuse of discretion.
Sections 46b-215a-4 and 46b-215a-5 of the Regulations of
Connecticut State Agencies address arrearage payments.
Section 46b-215a-4 (b) provides that, as a general rule, "the
weekly order of payment toward any arrearage shall be twenty
percent (20%) of the weekly current support order, rounded to the
nearest dollar, provided . . . (1) the sum of the weekly payments
on current support and arrearages shall not exceed fifty-five
percent (55%) of the obligor's net weekly income . . . ." Section
46b-215a-5 creates a rebuttable presumption that the amount arrived
at through application of the general rule is the amount to be
ordered, and also provides for deviation from the general rule.
Under that section, the presumption "may be rebutted by a specific
finding on the record that the application of such guidelines would
be inequitable or inappropriate in a particular case. Any such
finding shall state the arrearage payment that would have been
required under the guidelines and include a justification for the
variance. Only the deviation criteria described in this section
establish sufficient bases for such findings." Regs., Conn. State
Agencies § 46b-215a-5 (a).See footnote 7
In Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994), this
court considered the provisions in the guidelines that allow for
deviation with respect to child support obligations. Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies employs
language identical to the language of § 46b-215a-5 (a) in creating
a rebuttable presumption that the amount of child support
calculated through application of the guidelines is the amount that
should be ordered.See footnote 8 Both sections require that, in order to rebut
the regulatory presumptions, the trial court make a "specific
finding on the record that the application of [the] guidelines
would be inequitable or inappropriate in a particular case" and
"state the amount of support that would have been required under
the guidelines and include a justification for the variance."
Regs., Conn. State Agencies §§ 46b-215a-3 (a) and 46b-215a-5 (a).
Examining that language in § 46b-251a-3 (a) in Favrow, we held that
it requires the trial court "first [to] determine on the record the
amount of support indicated by the guidelines schedule" before
determining whether to deviate from that amount. Favrow v. Vargas,
supra, 25. We conclude that the identical language in § 46b-215a-5
(a) must be interpreted in the same manner here. As a result, the
trial court is required to first determine and state in the record
the amount of the arrearage payment determined pursuant to § 46b-215a-4 that, under § 46b-215a-5 (a), is presumed to be the correct
amount to be ordered, before determining whether the presumption
has been rebutted in accordance with the other provisions of that
section.
In this case, the trial court did not make the findings in the
record required by § 46b-215a-5 (a). The trial court found that
the defendant has a gross income of $1027 per week, comprised of
$311 per week in pension distributions, $202 per week in business
income from Construction Consultants, and $514 per week in gifts
received from Shoham on a regular and consistent basis. After
crediting the defendant for taxes and health insurance as allowed
by the guidelines, the court found the defendant's income for child
support purposes to be $917 per week. It also noted that the
defendant is obligated currently to pay child support in the amount
of $252 per week.
In accordance with the guidelines, the trial court next should
have determined and stated in the record that 20 percent of the
current weekly support order of $252 equals approximately $50 per
week. Without doing so, however, the trial court ordered arrearage
payments of $233 per week, a payment equal to 92 percent of the
$252 weekly support obligation. Although the mathematical
calculation that 20 percent of $252 is $50.40 is one that under the
circumstances of this case this court could perform, the trial
court must, in the first instance, make that determination not
simply as a matter of mathematics but as a measure against which to
decide whether application of the guidelines would be inequitable
or inappropriate. As we stated in Favrow v. Vargas, supra, 231
Conn. 27, "[t]he notion of a presumptively correct level of support
. . . strongly suggests a particular amount of money as a starting
point." Requiring the trial court to determine the amount of the
arrearage payment to be ordered pursuant to the guidelines before
deciding whether and to what extent to deviate from the guidelines
is appropriate because it "will facilitate appellate review in
those cases in which the trial court finds that a deviation is
justified" and will enable an appellate court to "make a more
informed decision on a claim that the amount of the deviation,
rather than the fact of a deviation, constituted an abuse of
discretion." Favrow v. Vargas, supra, 29.
In this case, the trial court did not calculate the
presumptively correct support order pursuant to the guidelines, did
not make a specific finding on the record that application of the
general rule would be inequitable or inappropriate under these
circumstances, and did not include a justification for the
variance. The only finding by the court that is at all relevant in
this regard is the finding in which the court concluded that "the
defendant possesses significant assets, which are available to him
for purposes of addressing the child support arrearage." This
statement does not satisfy the requirements of § 46b-215a-5 (b) as
we interpret it. We conclude, therefore, that the trial court's
order of $1000 per month in arrearage constituted an abuse of
discretion.
The defendant next claims that the trial court abused its
discretion in failing to consider the plaintiff's earning capacity
in determining his child support obligation. We disagree.
Under the guidelines, the child support obligation first is
determined without reference to earning capacity, and earning
capacity becomes relevant only if a deviation from the guidelines
is sought under § 46b-215a-3 (b) (1) (B). Pursuant to § 46b-215a-3
(a), the amount of support determined without reference to the
deviation criteria is presumed to be the correct amount of support,
and that presumption may only be rebutted by a specific finding on
the record that the application of the guidelines would be
inequitable or inappropriate under the circumstances of a
particular case. When the latter is true, § 46b-215a-3 (b) (1)
(B) allows deviation from the guidelines on the basis of a parent's
earning capacity.
In determining the defendant's child support obligation, the
trial court first determined the actual incomes of both the
defendant and the plaintiff. The trial court found the defendant's
net weekly income for child support purposes to be $917 per week,
and the plaintiff's to be $586 per week. The court further noted
that while it found "the plaintiff to be employed at full earning
capacity," it did not find the defendant to be "working at capacity
at this time, [although] his capacity to earn income has not
diminished at all." The trial court made these findings despite
the fact that both the plaintiff and the defendant had previously
earned more income than they were earning at the time of the trial
court proceedings. Significantly, although the court made findings
as to the earning capacities of both parties, it did not use those
findings to deviate from the guidelines in setting the defendant's
child support obligation. Therefore, the defendant can prevail on
this claim only if he can demonstrate that the trial court should
have deviated from the guidelines on the basis of the plaintiff's
earning capacity, and that the failure to do so constituted an
abuse of discretion.
In order to have deviated from the guidelines in setting the
defendant's child support obligation, the trial court would have
been required, pursuant to § 46b-215a-3 (a), to find that
application of the guidelines would have been inequitable or
inappropriate under the circumstances, and would have had to make
specific findings on the record in that regard. Here, the findings
made by the trial court were that the plaintiff, for one year
during 1994-95, had earned an annual salary of $60,000 at
employment that required her to work approximately sixty to seventy
hours per week, some of those hours on weekends. There was also
evidence in the record that, at the end of that year, the plaintiff
left the employment for alternate full-time employment involving
fewer hours and paying only $41,000 per year. The record further
contained undisputed evidence suggesting that the plaintiff sought
new employment that involved fewer hours because the hours
associated with her former employment interfered with her
responsibilities as primary caretaker of the parties' minor
children. On the basis of this evidence, the trial court
reasonably could have concluded that the plaintiff was employed at
full capacity, and, as a result, no deviation from the guidelines
was justified. "Earning capacity, in this context, is not an
amount which a person can theoretically earn, nor is it confined to
actual income, but rather it is an amount which a person can
realistically be expected to earn considering such things as his
vocational skills, employability, age and health." Lucy v. Lucy,
183 Conn. 230, 234, 439 A.2d 302 (1981). Similarly, we recognize
a parent's child care responsibilities as a factor that may affect
earning capacity. Therefore, under the circumstances of this case,
we cannot conclude that the trial court abused its discretion.
The defendant's fourth and fifth claims pertain to the court's
order that he pay a portion of the plaintiff's attorney's fees.
The defendant contends that the trial court abused its discretion
when it awarded the plaintiff $1000 in attorney's fees in relation
to the trial court proceedings, and $3250 in attorney's fees for
the purpose of defending the appeal, because in so doing the court
improperly considered Shoham's contributions in assessing his
ability to pay an award, and failed properly to examine and limit
its focus to whether he had sufficient liquid funds with which to
satisfy the awards. We disagree.
In proceedings concerning the support of a minor child, the
court may order either parent to pay the reasonable attorney's fees
of the other in accordance with their respective financial
abilities and the criteria set forth in General Statutes § 46b-82.See footnote 9
General Statutes § 46b-62.See footnote 10 "Whether to allow counsel fees, and
if so in what amount, calls for the exercise of judicial
discretion." (Internal quotation marks omitted.) Holley v.
Holley, supra, 194 Conn. 33-34. "Courts ordinarily award counsel
fees in divorce cases so that a party . . . may not be deprived of
[his or] her rights because of a lack of funds. . . . Where,
because of other orders, both parties are financially able to pay
their own counsel fees, they should be permitted to do so."
(Internal quotation marks omitted.) Koizim v. Koizim, 181 Conn.
492, 501, 435 A.2d 1030 (1980). If, however, "the failure [to make
an award] would substantially undermine the other financial awards"
an award of attorney's fees is justified. Eslami v. Eslami, 218
Conn. 801, 820, 591 A.2d 411 (1991). "An abuse of discretion in
granting counsel fees will be found only if [an appellate court]
determines that the trial court could not reasonably have concluded
as it did." Cook v. Bieluch, 32 Conn. App. 537, 544, 629 A.2d
1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993). In making
an award of attorney's fees, "[t]he court is not obligated to make
express findings on each of these statutory criteria." Weiman v.
Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982).
Section 46b-82 requires the court to consider the amount and
sources of income of each party in determining whether to award
attorney's fees. Here, the trial court found that the
contributions to the defendant's living expenses made by his
domestic partner constituted income to the defendant. Having so
found, the court properly included these contributions in its
assessment of the defendant's ability to pay a portion of the
plaintiff's attorney's fees.
With regard to the trial court proceeding, the record further
discloses that the trial court specifically considered the
remaining statutory criteria and the parties' overall financial
abilities in determining whether to award attorney's fees. First,
the trial court explicitly stated in its memorandum of decision
that it had considered the required factors as follows:
"Recognizing the respective financial abilities of the parties, the
lack of change in the defendant's capacity to earn income, and the
criteria set forth in § 46b-82, the court has provided the
plaintiff with a reasonable award of attorney's fees pursuant to
§ 46b-62. . . . In light of the parties' respective financial
abilities and the criteria set forth in § 46b-82, the court finds
that the plaintiff shall be permitted an allowance of $1000 in this
matter."
The record fully supports the trial court's statement -- it is
replete with evidence of the parties' financial abilities, and with
evidence pertaining to the statutory criteria set forth in § 46b-82. In addition to containing the financial affidavits of each
party, the record contains other evidence of each party's financial
abilities, including evidence as to each party's income, expenses,
assets, liabilities, earning capacity, age, health, station,
occupation, amount and sources of income, vocational skills and
employability, as well as the estate and needs of each of the
parties. The court stated that it specifically had considered all
of this evidence in awarding attorney's fees to the plaintiff.
Furthermore, the evidence is sufficient to support the award
of attorney's fees. The plaintiff's financial affidavit of October
21, 1996, disclosed that she had assets of $83,686, consisting of
bank accounts totaling $1686 and equity in her home and automobile,
liabilities of $50,800, a net weekly income of $694, and weekly
expenses of $952. The defendant's financial affidavit, on the
other hand, disclosed that as of October 24, 1996, he had assets
valued at $264,256, comprised mainly of equity in his home and
automobiles, an independent retirement account, a 401K plan, and a
pension already in pay status, liabilities of $32,038, a net weekly
income of $376, weekly gift contributions of $514, and weekly
expenses of $1700. While neither party possessed a weekly income
sufficient to cover weekly expenses, examining the evidence in the
record, the court reasonably could have concluded either that the
plaintiff lacked sufficient funds with which to pay her own
attorney's fees, or that the failure to award her attorney's fees
would undermine the intended effects of its other financial orders.
Under these circumstances, we do not find a clear abuse of
discretion.
With regard to the attorney's fees awarded for purposes of
defending the appeal, the defendant contends that the trial court
failed to consider whether he has sufficient liquid assets with
which to satisfy the award. The availability of ample liquid funds
with which to pay an award, however, is "not an absolute litmus
test for an award of counsel fees." Maguire v. Maguire, 222 Conn.
32, 44, 608 A.2d 79 (1992). "This is because a trial court's
discretion should be guided so that its decision regarding
attorney's fees does not undermine its purpose in making any other
financial award." (Internal quotation marks omitted.) Anderson v.
Anderson, 191 Conn. 46, 59, 463 A.2d 578 (1983).
The trial court held a hearing on July 23, 1997, to consider
the plaintiff's motion for attorney's fees related to defending the
appeal. At the hearing, the court considered a revised financial
affidavit executed by the plaintiff, and, because the defendant
averred that his financial situation remained unchanged, it also
considered the financial affidavit of the defendant that he had
submitted in the earlier proceedings. The plaintiff's updated
financial affidavit revealed, however, that her situation had
changed. Since October 21, 1994, she had received a modest
increase in compensation from employment, and, after receiving the
increase in child support to $252 per week, has approximately $140
per week remaining after paying household expenses. Offsetting
those improvements, however, was an increase in total liabilities
of $20,000, attributable to home repairs, attorney's fees, and
other expenses, and the discovery of an error on her previous
financial affidavit that failed to reflect the proper amount owed
on her home mortgage, so that at the time the plaintiff actually
owed $31,000 more on her mortgage than was indicated in the October
21, 1996 financial affidavit. Furthermore, at the hearing, the
court had available to it evidence as to all of the other statutory
criteria submitted in the earlier proceedings.
Following the presentation of evidence at the hearing, the
court awarded $3250 in attorney's fees to the plaintiff. In so
doing, the court stated that it relied upon "the financial status
[of the parties] as set forth before [it]." The court again
concluded, as it had done in the proceedings on the motions for
contempt and modification of child support, that the defendant "has
greater income available for support of the children than [the
plaintiff]" and "has greater income available to him than does [the
plaintiff] for purposes of paying counsel fees." Therefore, the
court stated that it found it "fair and appropriate" to award
counsel fees to the plaintiff.
In light of the evidence presented and these findings and
conclusions made by the court, we cannot say that the court abused
its discretion in awarding the plaintiff an amount that would pay
approximately one half of her anticipated attorney's fees. The
court reasonably could have concluded, following the hearing,
either that the plaintiff lacked sufficient funds with which to pay
her own attorney's fees, or that if the plaintiff were required to
pay the entire amount of her anticipated attorney's fees, the
purpose of the court's earlier financial orders would be
undermined. Although the court did not expressly make such a
finding, the record clearly supported one. Furthermore, an express
finding is not required. Weiman v. Weiman, supra, 188 Conn. 234.
Instead, as an appellate court, we will examine the record to
determine if the trial court incorrectly applied the law or could
not reasonably have concluded as it did. Caffe v. Caffe, 240 Conn.
79, 83, 689 A.2d 468 (1997). In this case, we conclude that the
trial court reasonably could have concluded that the award of
attorney's fees was warranted on the basis of the statutory
criteria set forth in § 46b-62 and our prior interpretations of
that section.
The judgment of the trial court is reversed in part and the
case is remanded for consideration of whether a departure from the
guidelines with respect to the child support arrearage payment is
warranted.
In this opinion the other justices concurred.
Footnotes
Payment Amount ($ per week)
Home mortgage 153
Home equity loan 167
Electric service 87
Cable television service 14
Natural gas service 45
Telephone service 37
Property taxes 87
Groundskeeping 35
Groceries 106
Automobile loan 148
The court included one half of the value of all of these amounts with the exception of the automobile loan, which amount it included in full. The sum of all these payments was determined to be $514 per week.