Lesueur v. Lesueur

172 Conn.App. 767

162 A.3d 32

Janine LESUEUR

v.Andrew LESUEUR

AC 38300

Appellate Court of Connecticut.

Argued December 7, 2016

Officially released May 9, 2017

Harold R. Burke, for the appellant (defendant).

Gaetano Ferro, with whom, on the brief, was Olivia M. Hebenstreit, for the appellee (plaintiff).

DiPentima, C. J., and Prescott and Bear, Js.

DiPENTIMA, C. J.

In this postdissolution marital matter, the defendant, Andrew LeSueur, appeals from the judgment of the trial court modifying custody and child support orders that had been entered at the time of the dissolution. The defendant contends that the court erred in failing to (1) grant a child support overpayment credit retroactive to any period prior to December 9, 2014, and (2) award child support to the defendant for the time period between June, 2014,¹ and the end of the 2016 school year. We affirm the judgment of the trial court.

We set forth the following facts and procedural history pertinent to this appeal. The plaintiff, Janine LeSueur, married the defendant on November 28, 1992. On January 27, 2011, the marriage was dissolved. At that time, the parties had two minor children: a daughter, born in July, 1997; and a son, born in January, 1999. The judgment of dissolution incorporated the parties' separation agreement that provided that the plaintiff and the defendant would have joint legal custody and the plaintiff primary physical custody of the two children. The separation agreement also provided, inter alia, that the defendant would pay the plaintiff unallocated alimony and child support from March 1, 2011 until June 30, 2020.

In September, 2013, the parties' daughter, who was sixteen years old at the time, started to reside primarily with the defendant.² On June 3, 2014, the defendant filed a postjudgment motion to open the judgment of dissolution and for modification of custody and child support, hereinafter referred to as the motion for modification. In that motion, the defendant explained that "[s]ince the date of judgment, the circumstances concerning the custody of the minor children have changed substantially ... [the daughter], now nearly [seven-teen] years old, has stated that she wishes to reside primarily with [the defendant] .... By agreement of the parties, [the daughter] has resided temporarily with [the defendant] for nearly nine months and she has found this arrangement to be beneficial. ... Given that [the] defendant has been financially responsible for [the daughter] during the period that she has resided with him, and will be financially responsible for her should [primary physical] custody of [the daughter] be modified, child support payable from [the] plaintiff to [the] defendant is appropriate and warranted." In addition, the defendant's motion for modification concluded by requesting that the court: (1) modify the primary physical custody of the daughter from the plaintiff to the defendant; (2) afford the plaintiff liberal and flexible parenting time with the daughter; (3) provide a child support award for his care of the daughter; (4) modify the parental notification requirement contained in the separation agreement from four hours to twenty-four hours; and (5) modify his child support obligation to the plaintiff.

The defendant's motion for modification came before the court, Tindill, J. , on May 7, 2015, and the court issued a memorandum of decision on July 31, 2015. In its memorandum of decision, the court set forth the following procedural history relevant to this appeal. The court began by explaining that on July 14, 2014, the parties negotiated an agreement, which the court, Heller, J. , approved and entered as an order of the court. "The agreement, among other things, 1) opened the judgment, 2) modified [primary] physical custody of [the daughter] to the defendant, 3) granted liberal and flexible parenting time and telephone contact between [the daughter] and the plaintiff, and 4) marked the remaining issues contained in the motion off to be reclaimed until either a September 10, 2014 status conference or one party notifying the other that [the daughter] living with the defendant was not in her best interests."³

At the September 10, 2014 status conference, the court, Colin, J. , ordered the parties to complete a family services intake within three weeks, which was delayed until October 9, 2014. After meeting with the family relations counselor, the parties informed the court, on December 5, 2014, that they needed a date to enter the agreement they negotiated with the assistance of family relations. The parties entered a second agreement regarding the pending motion for modification, which was approved and ordered by the court, Novack, J. , on December 9, 2014. That "agreement provided for the continuation of the July 14, 2014 [agreement] (the first agreement on the pending motions) so long as the defendant encouraged and fostered a relationship between [the daughter] and [the plaintiff,] and allowed [the daughter] reasonable and flexible access between the parties' homes. The remaining issues in the defendant's motion—new child support orders and the [four] hour parental notification requirement—were not addressed in the two agreements."

On May 7, 2015, the court, Tindill, J. , held a hearing on the defendant's motion for modification with respect to, among other things, the plaintiff's child support obligation for the daughter. With respect to the May 7, 2015 hearing, the court in its July 31, 2015 memorandum of decision noted that the parties' "separation agreement contemplates modification for the substantial change in circumstances claimed, namely a change in (one of) the minor children's primary residence." The court then stated that it found "that the custody and parenting arrangement to which the parties stipulated in [their separation agreement] was observed until September, 2013, when it was decided, by mutual agreement of the parents with input from the child's therapist, that their daughter ... would reside full-time with [the defendant]. The defendant's motion for modification, therefore, is granted."

In determining the amount of child support that was appropriate under the circumstances of this case, the court explained that it considered the Connecticut child support guidelines and the parties' finances. Accordingly, "[t]he court adopts the figure of $170 per week offered by the defendant in his proposed orders for the plaintiff's child support obligation [for the daughter]. The court declines to make a finding regarding what percentage of the January, 2011 unallocated support order⁴ should be calculated as child support." The court further stated that although the defendant sought financial orders in his motion for modification, "he did not submit a signed, sworn financial affidavit until ordered to so by the court on May 22, 2015. Prior to June 8, 2015, the most recent financial affidavits filed were those filed on January 27, 2011, at the time of the judgment of dissolution. ... Given the current ages and level of maturity of the parties' children, the court finds that the notification requirement of the separation agreement should be adjusted." (Footnote omitted.) This appeal followed. Additional facts will be set forth as necessary.

Before addressing the merits of the defendant's appeal, we first set forth our well established standard of review in domestic relations matters. "[T]his court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. ... Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court's ruling ... may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law." (Citations omitted; internal quotation marks omitted.) Gabriel v. Gabriel , 324 Conn. 324, 336, 152 A.3d 1230 (2016). Guided by these principles, we address in turn each of the defendant's claims.

I

The defendant first claims that the court erred in failing to grant a child support overpayment credit retroactive to any period prior to December 9, 2014. The defendant presents two statutory bases to support his claim. He contends that (A) pursuant to General Statutes § 46b–224, the court was obligated to issue a child support credit retroactive to July 14, 2014, which was the date that the court approved the parties' first agreement modifying the primary physical custody of the daughter on a temporary basis and (B) pursuant to General Statutes § 46b–86 (a), the court abused its discretion in failing to issue a child support credit retroactive to June 30, 2014, which was the date that the defendant's motion for modification was served on the plaintiff.⁵ We disagree.

A

We first address the defendant's argument that, pursuant to § 46b–224, the court was obligated to issue a child support credit retroactive to July 14, 2014, the date that the court approved the parties' first agreement modifying the primary physical custody of the daughter on a temporary basis. Specifically, the defendant contends that the court failed to apply § 46b–224, which permitted him, as the obligor of child support, to suspend child support payments upon the court's issuance of the order modifying custody of the daughter on July 14, 2014. Therefore, he argues, his child support obligation for the daughter should have been modified retroactive as of July 14, 2014, rather than December 9, 2014. We are not persuaded.

"Section 46b–224 specifically addresses the question of how a change in custody affects the payment of...