Barbour v. Barbour

• Decision Date: 07 April 2015
• Docket Number: No. 36241.,36241.
• Citation: 156 Conn.App. 383,113 A.3d 77
• Parties: Richard BARBOUR v. Marie BARBOUR.
• Court: Connecticut Court of Appeals

156 Conn.App. 383

113 A.3d 77

Richard BARBOUR

v.Marie BARBOUR.

No. 36241.

Appellate Court of Connecticut.

Argued Dec. 11, 2014.

Decided April 7, 2015.

Marianne J. Charles, for the appellant (defendant).

Maureen P. Williams, Bridgeport, for the appellee (plaintiff).

GRUENDEL, ALVORD and SHELDON, Js.

Opinion

ALVORD, J.

The defendant, Marie Barbour, appeals from the postjudgment orders of the trial court granting her motion for modification of child support¹ and granting the motion of the plaintiff, Richard Barbour, for contribution toward their son's college expenses. The defendant claims that the court improperly (1) relied on the representations of the plaintiff's counsel in lieu of evidence when it calculated the amount of the modification, and (2) entered an educational support order that failed to comply with General Statutes § 46b–56c. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our review of the defendant's claims. The court, Klatt, J., dissolved the parties' twenty year marriage on March 26, 2012. At the time of the dissolution, the parties had two minor children, aged sixteen and twelve. The judgment of dissolution incorporated by reference the parties' separation agreement (agreement), which contained provisions for child support and postmajority educational support. In essence, the parties agreed that they would maintain split physical custody of their two minor children, with the minor son residing with the plaintiff and the minor daughter residing with the defendant. The child support payments were calculated accordingly, and the plaintiff was obligated to pay $50 per week to the defendant. With respect to college expenses, the agreement expressly provided that the court would retain jurisdiction “for purposes of postmajority educational support pursuant to [§ ] 46b–56c.” The agreement further provided that “[t]he parties agree, pursuant to [the] statute, that it is more likely than not that the parents would have provided support to the child for higher education if the family were intact.” The defendant was given “possession and control” of the 529 college savings plan accounts for both children.²

On August 22, 2013, the defendant served the plaintiff with a motion to modify the plaintiff's child support obligation, claiming a substantial change in circumstances.³ The plaintiff filed a motion for contribution toward college expenses on September 6, 2013, alleging that the parties' son was enrolled at a university in Texas, that the plaintiff had applied for and exhausted all available options for scholarships and other methods of reducing the college expenses, and that the defendant had failed to make any contributions toward the tuition. A hearing on both motions was held before the court, Hon. Howard T. Owens, Jr., judge trial referee, on September 26, 2013. The plaintiff was represented by counsel; the defendant proceeded as a self-represented party.

At the conclusion of the hearing, the court requested the plaintiff's counsel to submit proposed orders with respect to the motion for contribution toward college expenses. The court stated: “Just give me something, I don't care even if it's in long hand, today.” After assuring the defendant that the plaintiff's counsel would share with her a copy of the requested proposed orders, the court told the defendant: “And you don't have to respond to it. I've got your story or what your claims are fairly accurate on both matters. Okay?” The plaintiff filed the proposed orders requested by the court, and the court issued its ruling on both motions on September 26, 2013, the same day as the hearing. The court's order provided: “The defendant's motion for modification, dated August 12, 2013, is granted. This court has examined the child support guidelines and finds that the child support shall increase from $50 per week to $163 per week effective October 4, 2013. Additionally, this court grants the plaintiff's proposed orders regarding college expenses, dated September 26, 2013.” The defendant filed a motion for reargument and clarification, which was denied by the court on October 21, 2013. This appeal followed.

I

The defendant's first claim is that the court improperly relied on the representations of the plaintiff's counsel in lieu of evidence when it calculated the amount of the modification to the plaintiff's child support obligation.⁴ The defendant argues that “the court relied on the representations of [the plaintiff's] counsel as evidence concerning both the plaintiff's increased income and the defendant's decreased income.” The following additional facts are necessary for the resolution of this claim.

At the hearing, the court first addressed the defendant's motion for modification of the plaintiff's child support obligation. Both parties submitted updated financial affidavits at that time. In addition, the plaintiff's counsel submitted a child support guidelines worksheet. After the plaintiff and the defendant were duly sworn by the court clerk, the defendant testified that her income consisted of her earnings as a cleaning lady and the apartment rent that she collected from her tenants. Her financial affidavit indicated that her income had decreased since the judgment of dissolution in March, 2012. She further testified that she could provide the court with the plaintiff's bank statements, which would demonstrate that his income had increased because he made more deposits to his account than his claimed wages as a teacher. She began to inform the court that the family relations officer had determined that $237 per week would be an appropriate amount for the plaintiff's child support obligation, but the court interrupted her and stated: “Don't tell us what they figured.”

The plaintiff provided no responsive testimony with respect to the defendant's motion to modify the child support payment. Instead, the plaintiff's counsel presented argument to the court in which she made various representations about the plaintiff's income and the defendant's income.⁵ After discussing prior financial affidavits filed by the parties and the most recent financial affidavits submitted for the hearing, counsel stated: “In any event, I don't believe that [the defendant's] financial circumstances have changed. I believe they're the same as they were at the time of the divorce. I believe [the plaintiff's] financial circumstances have improved to the tune of about $200 a week, and basically that money is coming in one pocket and going out the other in terms of the college expenses.”

The plaintiff's counsel then directed the court to the child support guidelines worksheet that she had prepared and explained how she calculated the defendant's income. Although the defendant's most recent financial affidavit indicated a net weekly income of $755, the worksheet prepared by the plaintiff's counsel stated the defendant's net weekly income at $1243.

Using her figures, the plaintiff's counsel represented to the court: “And that child support guidelines worksheet, if there is to be a modification, shows $163 a week payable to [the defendant].” In its ruling, the court ordered an increase in the plaintiff's child support obligation from $50 to $163 per week.

We first set forth our standard of review. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts 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.... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) O'Donnell v. Bozzuti, 148 Conn.App. 80, 82–83, 84 A.3d 479 (2014).

“When presented with a motion for modification [brought pursuant to General Statutes § 46b–86 (a) ],⁶ a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties.... Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the ... [General Statutes] § 46b–82 criteria, make an order for modification.... The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties.” (Internal quotation marks omitted.) Id., at 87, 84 A.3d 479.

Having established that a substantial change in circumstances did exist; see footnote 3 of this opinion; we now look to the amount of the court's modification to determine whether it is supported by the evidence. As previously noted, the plaintiff did not testify during the portion of the hearing that addressed the defendant's motion to modify the child support payment. The only evidence as to the defendant's income was the financial affidavit that she submitted and her testimony at the hearing. The defendant's evidence did not support an increase from $50 to $163 per week.⁷ The only document submitted that did support an increase to $163 per week was the child support guidelines worksheet prepared by the plaintiff's counsel. The only statements made in support of that amount were the representations of the plaintiff's counsel. In arriving at the figure of...