Hayward v. Hayward

• Decision Date: 27 April 1999
• Docket Number: (AC 16496)
• Citation: 53 Conn. App. 1,752 A.2d 1087
• Court: Connecticut Court of Appeals
• Parties: CAMERON M. HAYWARD v. JAMES R. W. HAYWARD

53 Conn. App. 1

752 A.2d 1087

CAMERON M. HAYWARD v. JAMES R. W. HAYWARD

(AC 16496)

Appellate Court of Connecticut.

Argued December 1, 1998.

Officially released April 27, 1999.

Foti, Lavery and Daly, Js.

Opinion

LAVERY, J.

This appeal, arising from the trial court's decision modifying its order for periodic child support, returns to this court¹ pursuant to our having granted the plaintiffs motion to reargue. The issue now before us is the plaintiffs claim that trial court improperly applied the child support guidelines² (support guidelines) by permitting the defendant to deduct his entire contribution to the Australian superannuation fund and the value of his employer provided automobile from his gross income. We agree.

The following facts are pertinent to this appeal. The plaintiff, Cameron M. Hayward, and the defendant, James R. W. Hayward, were married in 1985, and one child was born to them in 1989. Sometime thereafter, the defendant returned to his native Australia, where he continues to reside. The parties entered into a separation agreement governing the financial aspects of their dissolution of marriage, which was granted on March 1, 1991. At the time of the dissolution, the defendant was self-employed; he is now employed by a third party.

In June, 1995, the defendant unilaterally reduced the amount of child support he paid monthly. Consequently, the plaintiff filed a motion to show cause why the defendant should not be held in contempt, in response to which the defendant filed a motion for modification of his periodic child support claiming a substantial change in the parties' circumstances.³ The defendant claimed that despite an increase in his gross income from employment from $181,000 in 1991 to $230,000 in 1996, his net income from employment decreased from $2168 per week to $1560 per week⁴ due, in part, to the contributions he is required to make to Australia's superannuation fund, a compulsory retirement savings program. The defendant's employer also provides him with an automobile, the value of which is included in his gross income. The defendant deducts approximately $296 from his weekly gross salary for the value of the motor vehicle.

A hearing was held on both motions in September, 1996. As a result of the hearing, the trial court orally denied the plaintiffs motion for contempt and issued a memorandum of decision granting the defendant's motion for modification. The plaintiff appealed.⁵

I

Before we can resolve the issue on appeal, we must address the defendant's claims that the plaintiff did not raise the misapplication of the support guidelines at trial and has not provided an adequate record for our review. The defendant is mistaken.

The issue before this court is whether the trial court improperly applied the child support guidelines in modifying the amount of periodic child support that the defendant owes the plaintiff, specifically, whether the trial court properly allowed the defendant to deduct from his gross income (1) his contribution to the superannuation fund and (2) the value of his automobile. The record before us includes a copy of the defendant's 1996 financial affidavit, a transcript of the hearing and the trial court's memorandum of decision in which it finds that the defendant's disposable weekly income is $1560.

The following additional facts are necessary for the resolution of the defendant's claim. The separation agreement incorporated in the dissolution judgment contained a provision that the defendant's child support payments were not to be controlled by the support guidelines.⁶ In fact, at the time of the dissolution of the marriage, the defendant's net income was at a level outside the scope of the support guidelines. At the hearing on his motion to modify his child support payments, the defendant argued that his net income was now significantly less than what it was at the time of the dissolution and that it now came within the scope of the support guidelines. Following evidence, the trial court heard argument from the parties' counsel, during which the following colloquy took place.

"[Plaintiffs Counsel]: With regard to the argument that [defendant's counsel] makes, first of all, our position is that this isn't a guidelines case. And it's not a guidelines case for two reasons. First of all, at the time that the divorce was entered, back in March of 1991... it's clear that the parties intended, through counsel, and the court accepted to the extent that it could, that this was not a guidelines case then. And moreover, under the agreement, this would not become a guidelines case.

"The Court: Well, that's the issue right there. That's the whole issue in the case.

"[Plaintiffs Counsel]: I understand that.

"The Court: And whether the agreement can override the guidelines and the regulation.

* * *

"The Court: Is there any case that says that a party's agreement approved by the court, made part of the judgment dissolution, can override the guidelines?

"[Defendant's Counsel]: I know of no case that says that.

"The Court: I don't either.

"[Plaintiffs Counsel]: And I don't either."

The trial court ruled that the support guidelines were mandatory and then applied the guidelines to the facts of the case. The plaintiff appealed.

A

We must first decide whether this court may properly review the plaintiffs claim because it was not raised at trial. This court "may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial...." (Emphasis added.) Practice Book § 60-5.

In its memorandum of decision, the trial court determined that the defendant's child support payments were controlled by the support guidelines and could not be overridden by the parties' separation agreement. The trial court, therefore, applied the support guidelines in modifying the amount of child support the defendant is now required to pay. On appeal, the plaintiff takes exception to the manner in which the trial court applied the support guidelines to the facts of this case. How the support guidelines are to be interpreted or applied was not at issue before the trial court. That issue arose subsequent to the hearing when the trial court issued its memorandum of decision. Pursuant to Practice Book § 60-5, therefore, we may properly consider the plaintiffs claim.

B

The defendant's second claim, as to whether we may properly review the plaintiffs appeal, is that there is an inadequate record for our review because the plaintiff did not ask the trial court to articulate the manner in which it applied the support guidelines to the defendant's financial affidavit. "It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term `record' is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety." Practice Book § 61-10. The substantive issue before us is whether the trial court properly applied the support guidelines to the defendant's superannuation fund contribution and the value of his employer provided automobile. The support guidelines are codified in §§ 46b-215a-1 and 46b-215a-2⁷ of the Regulations of Connecticut State Agencies. "In construing regulations, the general rules of statutory construction apply." Smith v. Zoning Board of Appeals, 227 Conn. 71, 89, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed.2d 540 (1994). Statutory construction is a question of law requiring plenary review. See Lopiano v. Lopiano, 247 Conn. 356, 363, 752 A.2d 1000 (1998), citing Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We need determine only whether the trial court correctly applied the support guidelines. See Lowe v. Lowe, 47 Conn. App. 354, 361, 704 A.2d 236 (1997).

We have before us the defendant's 1996 financial affidavit, a transcript of the hearing and the trial court's memorandum of decision in which it found the defendant's net income. This record is sufficient for us to determine whether the trial court properly applied the support guidelines as a matter of law. We will, therefore, review the plaintiffs claim.

II

We now turn to the plaintiffs claim that the trial court improperly applied the child support guidelines. "The well settled standard of review in domestic relations cases is that this 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. ... McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982); see also Rostain v. Rostain, 213 Conn. 686, 693, 569 A.2d 1126 (1990). In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.... Sands v. Sands, 188 Conn. 98, 101, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed.2d 997 (1983).... Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998)." (Internal quotation marks omitted.) Stewart v. Stewart, 50 Conn. App. 762, 763, 718 A.2d 516, cert. denied, 247 Conn. 948, 723 A.2d 323 (1998).

"Where the legal conclusions of the trial court are challenged, on appeal those conclusions are subject only to the test of abuse of discretion.... Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... The salient...