Marcus v. Cassara

308 A.3d 39

223 Conn.App. 69

Adrian MARCUS

v.Dawn CASSARA

(AC 45592)

Appellate Court of Connecticut.

Argued April 11, 2023

Officially Released December 26, 2023

Dawn Cassara, self-represented, the appellant (defendant).

Adrian Marcus, self-represented, the appellee (plaintiff).

Moll, Suarez and Clark, Js.

SUAREZ, J.

₇₁The self-represented defendant, Dawn Cassara, appeals from the judgment of the trial court granting in part a postjudgment motion for modification filed by the plaintiff, Adrian Marcus, regarding certain orders related to child support. On appeal, the defendant claims that the court improperly modified an order requiring the plaintiff to pay a percentage of the costs associated with the extracurricular activities of the parties’ children. We agree and, accordingly, reverse in part the judgment of the trial court.

The record reveals the following facts and procedural history. The parties, who were never married, have three children together: a daughter born in July, 2005, and twin sons born in December, 2006. In June, 2008, the plaintiff filed a custody application requesting joint legal custody of the children, with the children’s primary residence being with the defendant.

On December 10, 2009, after a bench trial, the trial court, Gordon, J., issued an oral ruling that included custody and visitation orders (December, 2009 decision). The court awarded the parties joint legal custody of the children but ordered that the defendant would ₇₂have physical custody and final decision-making authority with respect to matters involving the children and that the plaintiff would have visitation rights. The court found that the plaintiff, who had his own chiropractic practice located in Greenwich, had an earning capacity of $200,000 per year, and the defendant, who was not employed at that time, had an earning capacity of $20,000 per year.¹ The court ordered the plaintiff to pay $528 per week as basic child support in accordance with the presumptive amount due under the child support guidelines and to share childcare expenses and unreimbursed medical and dental costs in accordance with the percentage allocation contained in the child support guidelines. In addition, the court ordered the parties to share expenses for the children’s extracurricular activities in the same proportion as the percentage allocations contained in the child support guidelines, with the plaintiff being responsible for 72 percent and the defendant being responsible for 28 percent of those costs. Specifically, the court set forth that "the parties shall share the cost for any extracurricular activities for the minor children, so long as those activities are reasonable, also in proportion to the childcare expense calculation [in] the guidelines." In addition, the court ordered the plaintiff to maintain his medical insurance and the parties to maintain their life insurance policies for the benefit of the children. The plaintiff did not appeal from the December, 2009 decision. Nevertheless, since the entry of those initial orders, the parties have engaged in continuous litigation regarding custody, visitation, and support.

On May 3, 2021, the plaintiff filed the motion for modification that led to the ruling that is the subject of the present appeal. The plaintiff requested, among ₇₃other things, that the court modify the percentage allocation for the cost of extracurricular activities.² The plaintiff con- tended, in relevant part, that he had paid 72 percent of the expenses for the children’s extracurricular activities since the December, 2009 decision "oftentimes without [the defendant] discussing the activities with [him] ahead of time and simply just sending [him] a bill after the fact." The plaintiff further argued that the defendant was "taking advantage of unilaterally signing the children up for activities and billing [him] on activities for which he does not agree and for which he cannot afford." With respect to his financial circumstances, the plaintiff alleged that the earning capacity of $200,000 per year as found by the court in the December, 2009 decision "is more than double his actual income." The plaintiff requested, among other things, that the court modify the percentage of extracurricular activity expenses allocated to each party such that they would "be equally responsible for the expenses associated thereto for all mutually agreed upon activities …. "

On May 11, 2022, the court, Hon. Heidi G. Winslow, judge trial referee, held a remote hearing on the plaintiff's motion for modification. At the hearing, the defendant testified that the parties’ children were involved in extracurricular activities such as dance, skiing, basketball, baseball, and soccer, and she explained the costs of those activities.³ The court questioned the parties as to the basis for the order regarding the expenses for extracurricular activities as set forth in the December, 2009 decision and whether the court, in that decision, had made any finding as to "the reason for the ₇₄deviation." The defendant responded that "[t]he trial court made significant findings of financial abuse back in 2009 …. "⁴ The plaintiff's counsel initially did not address whether the court had made, or improperly failed to make, any findings regarding a deviation from the child support guidelines. Instead, she responded that "[w]hat we cited to in this motion was [that] the extracurricular activities are supposed to be discussed and agreed upon," and that the defendant had engaged in "unilateral decision-making in this case dating back in its history," even though the court issuing the December, 2009 decision "did [not] ever intend on extracurricular activities … to be unilateral decisions where one party just does whatever they want and bills the other party."

The court subsequently stated: "I haven’t found anything in the original judgment that explains the deviation from the child support guidelines. Extracurricular activities are not regular child support, they are a deviation from the child support guidelines and the court is required to find a reason for the deviation consonant with the guidelines that are published." At that point, the plaintiff's counsel agreed with the court’s concern. When the court continued to ask whether "the decision anywhere say[s] anything about the reason for the deviation," the plaintiff's counsel re- sponded, "[n]ot that I could find, Your Honor." The plaintiff's counsel explained: "I read the decision. I did not see anywhere ₇₅where [the court] discussed … and articulated a reason for deviating upwards to 72 percent for extracurriculars. … [T]his is a court of equity and … I respectfully ask the court to address it today. … [A]nd, if the court finds these extenuating circumstances, or something … to justify the deviation that’s allowed, I would like … the court to articulate it."

At the conclusion of the hearing, the court issued an oral ruling granting the plaintiff's motion for modification as it pertained to the expenses for extracurricular activities. The court concluded that "the children do not have extraordinary extracurricular expenses. Considering that there are three children, yes, there are extracurricular expenses, but they are not in any way extraordinary that would warrant a deviation from the child support guidelines. And accordingly, the court is eliminating the requirement that [the plaintiff] contribute to those expenses effective June 30, 2021."⁵

When the defendant asked the court whether it was "eliminating [the plaintiff's] requirement to contribute entirely, or … changing the allocation," the court explained that it was eliminating the plaintiff's obligation to contribute to the cost of extracurricular activities "[e]ntirely … [o]n the basis that there’s no reason to deviate from the guidelines." The court further explained that the order regarding extracurricular activities "is an extra order that is made as a deviation from the child support guidelines and should be explained as a deviation from the child support guidelines. But in this case no one has given me a satisfactory reason to deviate from the child support guidelines and, accordingly, I'm making the modification." The court also noted that the plaintiff "is not participating very ₇₆actively in these extracurricular activities at this point anyway. So, it certainly would not be a particular reason to have him pay."⁶

The defendant subsequently filed a motion to reargue and for reconsideration, which the court summarily denied. This appeal followed. After filing her appeal, the defendant, pursuant to Practice Book § 64-1, requested that the trial court provide a statement of its decision with respect to the motion for modification and the motion to reargue and for reconsideration.

On July 5, 2022, the court issued a memorandum of decision addressing its decisions to grant the plaintiff's motion for modification as it related to the expenses for extracurricular activities and to deny the defendant’s motion to reargue and for reconsideration.⁷ The court explained: "The [child support] guidelines used in 2009 were effective August 1, 2005. The guidelines used now have been effective since July 1, 2015. Both sets of guidelines require a court to articulate acceptable reasons for [a] deviation from [the] child support guidelines together with a finding that it would be inappropriate and inequitable NOT to deviate from the guidelines in the instant case. The trial court in 2009 made no statements regarding [a] devia- tion from the guidelines. Nor did the trial court give any reason for supposing that deviation criteria might exist. The defendant has argued at the May 31, 2022 hearing before this court that the trial judge made extensive findings regarding the plaintiff's coercive financial and emotional control of the defendant. The defendant advances the claim that the trial judge intended to make up for the history of coercive control by allowing the...