O'Brien v. O'Brien

• Citation: 53 A.3d 1039,138 Conn.App. 544
• Decision Date: 16 October 2012
• Docket Number: No. 31990.,31990.
• Court: Appellate Court of Connecticut
• Parties: Michael J. O'BRIEN v. Kathleen E. O'BRIEN.

138 Conn.App. 544

53 A.3d 1039

Michael J. O'BRIEN

v.Kathleen E. O'BRIEN.

No. 31990.

Appellate Court of Connecticut.

Argued Jan. 5, 2012.

Decided Oct. 16, 2012.

Steven D. Ecker, Hartford, with whom, on the brief, was Ann Walsh Henderson, for the appellant (plaintiff).

George J. Markley, Fairfield, for the appellee (defendant).

LAVINE, SHELDON and WEST, Js.

SHELDON, J.

In this marital dissolution action, the plaintiff, Michael J. O'Brien, appeals from the judgment of the trial court with respect to several of the financial orders entered at the time of its final decree. Among other orders herein challenged is the court's unallocated award of alimony and child support for the defendant, Kathleen E. O'Brien, and the parties' minor children.¹ Central to the plaintiff's challenge to this award is his claim that, in so ordering, the court failed to consider and apply the child support guidelines (guidelines).² On this score, the plaintiff complains, more particularly, that the court erred by failing to determine the presumptive amount of child support under the guidelines, failing to make a finding that the application of the guidelines would be inequitable or inappropriate in this case, and failing to indicate that it was deviating from the guidelines when it fashioned its unallocated alimony and child support order.³ Because we agree with the plaintiff that the court erred in entering its unallocated alimony and child support order without considering and applying the guidelines, and we conclude that that order is inextricably interwoven with the mosaic of other financial orders which were entered at the time of the final decree, we reverse the court's judgment with respect to all of its final financial orders and remand this case for a new trial on all financial issues. The plaintiff also claims that the court abused its discretion in ordering him to pay the defendant $50,000 in attorney's fees to defend this appeal. Because such an order must be based upon the financial circumstances of the parties, and those financial circumstances may be materially affected by the new financial orders issued on remand, the award of appellate attorney's fees must also be remanded for further consideration.

The following facts are relevant to our resolution of this appeal. The parties were married in 1985, and three children were born of the marriage—the first child on August 9, 1994, the second child on July 2, 1996, and the third child on May 19, 2000. The plaintiff filed an action seeking dissolution of the parties' marriage on January 30, 2008. In its memorandum of decision filed on September 18, 2009, the court rendered judgment dissolving the parties' marriage, adopting a parenting plan formulated by the parties, and ordering, inter alia, that “[t]he plaintiff shall pay to the defendant, during his lifetime or until the defendant's death or remarriage, the following percentages of his ‘gross annual earned income from employment,’ as hereinafter defined, as unallocated alimony and child support: a. [45] percent of the plaintiff's ‘gross annual earned income from employment’ from October 1, 2009 until January 30, 2015; b. [c]ommencing February 1, 2015, [40] percent of the plaintiff's ‘gross annual earned income from employment’ through July 2, 2024; c. [f]rom July 2, 2024, until the death of either party or the defendant's remarriage, whichever shall first occur as defined by statute, [20] percent of the plaintiff's ‘gross annual earned income from employment’ as alimony.” ⁴ This appeal followed.⁵ Thereafter, on February 25, 2010, the defendant filed a postjudgment motion for attorney's fees to defend this appeal. The court granted that motion, issuing an order that the plaintiff pay the defendant $50,000 in appellate attorney's fees. The court subsequently articulated the basis of this order as follows: “The defendant is defending an appeal that is frivolous. To not award her attorney fees to defend could undermine other awards.”

On appeal, although the plaintiff presents several claims of error with respect to the court's unallocated award of alimony and child support, we will focus on the most fundamental of those claims—that in fashioning that award, the court erred in failing to consider and apply the guidelines. On this score, to reiterate, the plaintiff specifically claims that the court erred by failing to determine the presumptive child support amount under the guidelines, failing to make a finding that the application of the guidelines would be inequitable or inappropriate under the circumstances of this case, and failing to indicate that it was deviating from the guidelines when it entered its unallocated, or “total family support,” order pursuant to § 46b–215a–3 (b)(5) of the Regulations of Connecticut State Agencies. We agree.

We begin our analysis of the plaintiff's claim by identifying the appropriate standard of review. “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.... 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.” (Citation omitted; internal quotation marks omitted.) Williams v. Williams, 276 Conn. 491, 496–97, 886 A.2d 817 (2005).

“The legislature has enacted several statutes to guide courts in fashioning child support orders. General Statutes § 46b–84 provides in relevant part: ‘(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance .... (d) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child....’

“To ensure the appropriateness of child support awards, General Statutes § 46b–215a provides for a commission to oversee the establishment of child support guidelines. General Statutes § 46b–215b requires that ‘[t]he ... guidelines ... be considered in all determinations of child support amounts.... [T]here shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support.... A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the Commission for Child Support Guidelines under section 46b–215a, shall be required in order to rebut the presumption in such case.’

“The guidelines incorporate these statutory rules and contain 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–2b (f). Consistent with ... § 46b–215b (a), the guidelines provide that the support amounts calculated thereunder are the correct amounts to be ordered by the court unless rebutted by a specific finding on the record that the presumptive support amount would be inequitable or inappropriate. Regs., Conn. State Agencies § 46b–215a–3 (a). The finding must include a statement of the presumptive support amount and explain how application of the deviation criteria justifies the variance. Id.; see also General Statutes § 46b–215b (a). This court has stated that the reason why a trial court must make an on-the-record finding of the presumptive support amount before applying the deviation criteria is to ‘facilitate appellate review in those cases in which the trial court finds that a deviation is justified.’ ... In other words, the finding ‘will enable an appellate court to compare the ultimate order with the guideline amount and make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion.’ ” (Citation omitted; emphasis added.) Kiniry v. Kiniry, 299 Conn. 308, 318–20, 9 A.3d 708 (2010); see also Misthopoulos v. Misthopoulos, 297 Conn. 358, 367–70, 999 A.2d 721 (2010); Maturo v. Maturo, 296 Conn. 80, 91, 995 A.2d 1 (2010); Unkelbach v. McNary, 244 Conn. 350, 367–68, 710 A.2d 717 (1998); Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731(1994); Budrawich v. Budrawich, 132 Conn.App. 291, 299–300, 32 A.3d 328 (2011).

Our Supreme Court has recognized that “the guidelines evolved from an experimental, intentionally nondirective and flexible approach to the imposition of standards that are presumptively binding on the court or magistrate.... [I]n general ... the ensuing work of the commission substantially circumscribes the traditionally broad judicial discretion of the court [to deviate from the guidelines] in matters of child support.” (Emphasis added.) Favrow v. Vargas, 222 Conn. 699, 715, 610 A.2d 1267 (1992). Our Supreme Court recently emphasized the importance of the mandatory application of the guidelines to all cases involving minor children, including those cases involving families with high incomes, in Maturo v. Maturo, supra, 296 Conn. at 80, 995 A.2d 1. The court there held: “[T]he...