Battistotti v. Suzanne A.

• Decision Date: 15 May 2018
• Docket Number: AC 39643
• Court: Connecticut Court of Appeals
• Parties: Marco BATTISTOTTI v. SUZANNE A.

182 Conn.App. 40

188 A.3d 798

Marco BATTISTOTTI

v.SUZANNE A.^*

AC 39643

Appellate Court of Connecticut.

Argued February 8, 2018

Officially released May 15, 2018

John R. Williams, New Haven, for the appellant (plaintiff).

David M. Moore, Avon, for the appellee (defendant).

DiPentima, C.J., and Alvord and Dewey, Js.

ALVORD, J.

In this protracted and bitterly contested family matter, the plaintiff father, Marco Battistotti, appeals from the judgment rendered by the court following a ten day trial on his custody action filed against the defendant mother, Suzanne A. On appeal, the plaintiff claims that the court: (1) improperly found that his earning capacity was $174,000 per year, (2) erred in failing to consider how its orders impacted his expenses, particularly the rental of an apartment in Greenwich used solely for parenting time, and (3) abused its discretion in requiring that the plaintiff's parenting time take place only within the town of Greenwich. We agree with the plaintiff's second claim and conclude that the trial court abused its discretion. Accordingly, we reverse the judgment with respect to the child support orders and remand the matter for further proceedings on the issue of calculation of child support.¹ We affirm the judgment in all other respects.

The following facts and procedural history are necessary for the resolution of the plaintiff's appeal. The plaintiff and the defendant, who were never married, became parents to a son in June, 2014. On June 13, 2014, the plaintiff, a resident of New York City, filed a child custody action in the judicial district of Stamford² seeking joint legal custody of the parties' child. He requested that the primary residence of the child be with the defendant and sought visitation on a schedule to be determined. He further sought a parenting responsibility plan for the parental decision-making regarding the child. The court, Tindill, J. , conducted a trial over the course of ten days. Both parties testified, as did the child's guardian ad litem.

The court issued a written memorandum of decision on September 7, 2016. The plaintiff filed a motion for articulation, and the court issued an articulation on October 6, 2016. On November 18, 2016, the court issued a corrected memorandum of decision, in which it made a number of findings with respect to the parties and their respective abilities to meet the needs of the child. The court found that the defendant had rebutted the presumption of joint legal custody and awarded sole legal custody, primary physical custody, and final decision-making authority to the defendant. The court awarded the plaintiff a minimum of seventeen hours of parenting time biweekly, and ordered that such parenting time occur within the town of Greenwich. The court prohibited the plaintiff from removing the child from Greenwich or the state of Connecticut. The court ordered the defendant or her designee to transport the child to and from the apartment the plaintiff had rented in Greenwich solely for effectuating his parenting time.

The plaintiff was prohibited from driving the child anywhere without obtaining a valid driver's license, and was ordered to provide the defendant twenty-four hours advance notice of any intention to transport the child in any moving vehicle, with the notice to include confirmation that the vehicle is properly licensed, registered, and insured. The court found that the plaintiff had a minimum net annual earning capacity of $174,356. Referencing the Connecticut Child Support Guidelines, the court ordered the plaintiff to pay $253 per week in child support beginning September 12, 2016.³ This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we note the well settled standard of review applicable in domestic relations cases. "[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 .... [T]he 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." (Citations omitted; internal quotation marks omitted.) Dowling v. Szymczak , 309 Conn. 390, 399, 72 A.3d 1 (2013). With respect to child support, however, "the parameters of the court's discretion have been somewhat limited by the factors set forth in the child support guidelines." (Internal quotation marks omitted.) Colbert v. Carr , 140 Conn. App. 229, 240, 57 A.3d 878, cert. denied, 308 Conn. 926, 64 A.3d 333 (2013).

I

We first address the plaintiff's claim that the court erred in failing to consider how its orders impacted his expenses, particularly the expense associated with the rental of an apartment in Greenwich used solely for effectuating parenting time with his son. He claims that although the court found that he lived in New York City, the court required that his parenting time take place in the apartment he rented in Greenwich "for the sole purpose of visiting his son" and prohibited him from taking the child out of Greenwich, which order effectively required him to "maintain two separate residences." He argues that the order to pay $253 weekly in child support coupled with the requirement of maintaining two residences "imposed an unsustainable financial burden," and he seeks to have the orders integrated.⁴ We agree that the court abused its discretion in failing to analyze whether the plaintiff's visitation expenses warranted a deviation from the child support guidelines.

The following additional facts are necessary for our resolution of this claim. In its memorandum of decision, the court found that it was in the child's best interest to live with his mother and to spend "significant, quality time with his father." The court noted that the defendant "proposes certain restrictions regarding transportation and location of the plaintiff's parenting time that she believes are essential to address the child's safety." The court found that the plaintiff rented and renovated a Greenwich apartment near the residence shared by the defendant and child, to be able to spend time with the child. With respect to child support, the court ordered that, "[i]n accordance with the Connecticut Child Support Guidelines (Court Exhibit A, attached), the plaintiff father is ordered to pay $253.00/week as child support to the defendant mother beginning September 12, 2016." Exhibit A consisted of the Child Support Guidelines, prepared by "Connecticut Judicial Service Center" and dated September 7, 2016, the date of the memorandum of decision. Figures for gross weekly income, federal income tax, social security tax, medicare tax, and state and local income tax were listed for both parties. Net weekly income was also included for both parties in the amounts of $3,028 with respect to the defendant and $3,353 with respect to the plaintiff. A presumptive support amount of $253 was entered for the plaintiff. Section VII of the worksheet, Deviation Criteria, was not utilized.

"[W]e first set forth the relevant legal principles applicable to our resolution of this claim. The legislature has enacted several statutes to assist courts in fashioning child support orders .... The legislature also has provided [in General Statutes § 46b–215a ] for a commission to oversee the establishment of child support guidelines, which must be updated every four years, to ensure the appropriateness of child support awards ...." (Internal quotation marks omitted.) Righi v. Righi , 172 Conn. App. 427, 435, 160 A.3d 1094 (2017). The guidelines provide a schedule for calculating "the basic child support obligation," which is based on the number of children in the family and the combined net weekly income of the parents. Regs., Conn. State Agencies § 46b–215a–2c(e).

In support of the application of these guidelines, General Statutes § 46b–215b(a) provides in relevant part: "The child support and arrearage guidelines issued pursuant to [§] 46b–215a ... shall be considered in all determinations of child support award amounts .... In all such determinations, there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under the deviation criteria established by the Commission for Child Support Guidelines under [§] 46b–215a, shall be required in order to rebut the presumption in such case."

Section 46b–215a–5c of the Regulations of Connecticut State Agencies, which describes the circumstances that may justify a support order different from the presumptive support amounts calculated under the child support guidelines, provides as a criterion for deviation under subsection (b): "(3) Extraordinary parental expenses ... In some cases, a parent may incur extraordinary expenses that are not considered allowable deductions from gross income, but which are necessary for the parent to maintain a satisfactory parental relationship with the child, continue employment, or provide for the parent's own medical needs. Only the following expenses, when found to be extraordinary and to exist on a substantial and continuing basis, may justify a deviation from presumptive support amounts under this subdivision: (A) significant visitation expenses ...."

"Our courts have interpreted this statutory and regulatory language as requiring three distinct findings in order for a court to properly deviate from the child support guidelines in fashioning a child support order: (1) a finding of the presumptive child support amount pursuant to the guidelines; (2) a specific finding that application of such...