Brent v. Lebowitz

• Decision Date: 01 January 2002
• Docket Number: (AC 21073)
• Citation: 787 A.2d 621,67 Conn. App. 527
• Court: Connecticut Court of Appeals
• Parties: HAROLD BRENT v. SANDRA P. LEBOWITZ

67 Conn. App. 527

787 A.2d 621

HAROLD BRENT v. SANDRA P. LEBOWITZ

(AC 21073)

Appellate Court of Connecticut.

Argued September 25, 2001.

Officially released January 1, 2002.

Landau, Schaller and Mihalakos, Js. Emily J. Moskowitz, with whom was Robert J. Kor, for the appellant (defendant).

Mark Miller, for the appellee (plaintiff).

Opinion

MIHALAKOS, J.

The defendant, Sandra P. Lebowitz, appeals from the judgment of the trial court ordering past due child support to be paid by the plaintiff, Harold Brent, in an amount less than that prescribed by the child support guidelines. The defendant claims that the court improperly (1) failed to award child support retroactively to the date of birth of the minor child, (2) based its failure to order retroactive child support on a prior agreement of the parties, and (3) failed to apply the child support and arrearage guidelines (guidelines) to the child support arrearage owed by the plaintiff. We reverse the judgment of the trial court. The following undisputed facts are relevant to our disposition of the defendant's appeal. The parties, who have never been married to one another, are the parents of a minor child born on July 20, 1995.¹ In March, 1996, the parties entered into an agreement whereby the plaintiff acknowledged the minor child as his daughter and agreed to pay $400 per month child support. In November, 1996, the defendant signed a letter memorializing the March agreement.

On December 7, 1998, the plaintiff filed a complaint seeking visitation with the child. In her answer, the defendant denied that the plaintiff was the father of the child. The defendant, however, in her cross complaint for custody, requested current child support and child support arrearage from the plaintiff. On January 13, 1999, the court referred the case to family relations for visitation mediation and ordered the parties to return to court to determine financial issues. Thereafter, the court ordered the plaintiff to pay, from January 13, 1999, current child support in accordance with the guidelines and child support arrearage in accordance with the parties' agreement.² This appeal followed.

"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.... 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 § 60-5]. Turner v. Turner, 219 Conn. 703, 709, 595 A.2d 297 (1991). With respect to the financial awards in a [custody matter], great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.... Holley v. Holley, supra, 29." (Internal quotation marks omitted.) Unkelbach v. McNary, 244 Conn. 350, 366, 710 A.2d 717 (1998). 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, 155, 536 A.2d 948 (1988); see also Unkelbach v. McNary, supra, 366.

The defendant first claims that the court improperly failed to award child support retroactively to the date of birth of the minor child. Because our resolution of the remaining claims is dispositive of the defendant's appeal, we do not reach this claim.

The defendant next claims that the court improperly failed to apply the guidelines to its order for child support arrearage by finding that the issue was controlled by a prior agreement of the parties. Finally, the defendant claims that the court improperly failed to apply the guidelines to the child support arrearage owed by the plaintiff. We agree with the defendant. Because the defendant's second and third claims are interrelated, we address them together.

General Statutes § 46b-215b³ provides that the guidelines shall be considered in all determinations of child support amounts, including child support arrearages.⁴ Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies provides in relevant part that "the amount of the arrearage [payments] calculated under section 46b-215a-4a of the Regulations of Connecticut State Agencies, are presumed to be the correct amounts to be ordered. The presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case. Any such finding shall state the amount that would have been required under such sections and include a justification for the variance. Only the deviation criteria described in this section establish sufficient bases for such findings."

The guidelines "[require] 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." (Internal quotation marks omitted.) Unkelbach v. McNary, supra, 244 Conn. 369. Furthermore, "[a]rrearage 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." Id., 367.

The defendant argues that the court improperly based the child support arrearage order on the March, 1996 agreement because, as a parent, she cannot contract away the rights of her child. Furthermore, she argues that she was coerced into signing the agreement.⁵ The facts in this case are analogous to those in Baker v. Baker, 47 Conn. App. 672, 707 A.2d 300 (1998). In Baker, the trial court had issued a support order in accordance with the parties' previous financial agreements without identifying the deviation criteria that justified the order. This court stated that "[b]ecause the trial court did not justify its decision to deviate from the guidelines on one of the deviation criteria set forth in the regulations, we cannot conclude that the trial court properly relied on the...