Keusch v. Keusch

• Decision Date: 18 September 2018
• Docket Number: AC 39395
• Citation: 195 A.3d 1136,184 Conn.App. 822
• Court: Connecticut Court of Appeals
• Parties: Lisa KEUSCH v. Kenneth KEUSCH

184 Conn.App. 822

195 A.3d 1136

Lisa KEUSCH

v.Kenneth KEUSCH

AC 39395

Appellate Court of Connecticut.

Argued January 2, 2018

Officially released September 18, 2018

Gaetano Ferro, New Canaan, with whom, on the brief, was Olivia M. Hebenstreit, for the appellant (defendant).

Yakov Pyetranker, for the appellee (plaintiff).

Sheldon, Elgo and Stevens, Js.

STEVENS, J.

The defendant, Kenneth Keusch, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Lisa Keusch, and entering related financial orders. On appeal, the defendant claims that the trial court (1) erroneously computed his presumptive minimum child support obligation and (2) abused its discretion by ordering the defendant to pay nonmodifiable unallocated alimony and support.¹ We agree with the defendant and, accordingly, we reverse in part the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our consideration of the issues raised on appeal. The plaintiff and the defendant were married on July 19, 1997. They are the parents of three minor children. By complaint dated February 26, 2014, the plaintiff sought, inter alia, dissolution of the parties' marriage, custody of the minor children, and temporary and permanent alimony and child support. On June 21, 2016, following a trial over several days on financial and property issues, the court dissolved the parties' marriage. In its memorandum of decision, the court ordered, inter alia, that the defendant pay unallocated alimony and support to the plaintiff in the amount of $12,500 per month "until the death of either party, the [p]laintiff's remarriage, or November 3, 2025, whichever shall occur first."² The duration and the amount to be paid were nonmodifiable by either party. The court indicated that it was deviating from the child support guidelines' (guidelines) presumptive support amount of $752 per week "based on the extraordinary disparity in income and the provision of alimony." The defendant then filed the present appeal.

Before addressing the merits of the defendant's claims, we first set forth the applicable standard of review in domestic relations matters. "[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.... As has often been explained, the 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.... 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." (Internal quotation marks omitted.) LeSueur v. LeSueur , 172 Conn. App. 767, 774, 162 A.3d 32 (2017).

"Individual financial orders in a dissolution action are part of the carefully crafted mosaic that comprises the entire asset reallocation plan.... Under the mosaic doctrine, financial orders should not be viewed as a collection of single disconnected occurrences, but rather as a seamless collection of interdependent elements. Consistent with that approach, our courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders even though the review process might reveal a flaw only in the alimony, property distribution or child support awards." (Internal quotation marks omitted.) Barcelo v. Barcelo , 158 Conn. App. 201, 226, 118 A.3d 657, cert. denied, 319 Conn. 910, 123 A.3d 882 (2015).

Guided by these principles, we will address the defendant's claims on appeal.

I

We first consider the defendant's claim that the court erroneously computed his minimum child support obligation. Specifically, the defendant argues that the court erred in calculating his presumptive child support obligation on the basis of his earning capacity rather than his actual earnings. He contends that the court did not calculate the amount of child support that would have been required based upon actual income, nor did it make a finding that application of the guidelines would be inequitable. We agree.

The following additional facts are necessary for the resolution of this issue. In its initial memorandum of decision, the court ordered the defendant to pay $12,500 to the plaintiff each month as unallocated alimony and support.³ The court did not indicate whether this award was based on the defendant's actual earnings or earning capacity. The court attached a worksheet for the Connecticut Child Support and Arrearage Guidelines (worksheet), prepared by the Connecticut Judicial Branch, to its memorandum of decision. The worksheet indicated that the defendant's gross weekly income was $5288, or approximately $275,000 per year, and his net weekly income was $3392, or $176,384 per year. On December 6, 2016, the defendant filed a motion for articulation asking the court to articulate, inter alia, the bases on which the court completed the worksheet. Specifically, the defendant asked the court to articulate the factual basis on which it determined that his gross weekly income was $5288, the factual basis for each deduction from gross weekly income and the factual basis for its determination that his net weekly income was $3392. The court denied the motion, and the defendant filed a motion for review. This court thereafter granted review but denied the requested relief.

In his principal appellate brief, the defendant argued that the court's erroneous calculation of his gross and net income lacked evidentiary support. In response, the plaintiff argued that the court's income findings were not based on the defendant's actual income, but were based on his earning capacity, and that these findings were supported by the record. At oral argument before this court, we questioned both sides regarding whether the trial court's financial award was based on the defendant's actual earnings or earning capacity. Following oral argument, we ordered the court to articulate whether the finding of weekly gross income of $5288, as recorded on the worksheet, represented a finding as to the defendant's actual income or the earning capacity and the factual basis for that finding.⁴ In its articulation, the court indicated that the gross weekly income amount of $5288 reflected on the worksheet represented the defendant's earning capacity.⁵

Section 46b-215a-5c (a) of the Regulations of Connecticut State Agencies provides in relevant part that "[t]he current support ... amounts calculated under [the regulations] ... 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 factual finding to justify the variance. Only the deviation criteria stated in ... this section, and indicated by the check boxes in section VIII of the worksheet, shall establish sufficient bases for such findings." "Earning capacity is ... found among the criteria for deviation from presumptive support amounts, as a type of financial [resource] that [is] not included in the definition of net income, but could be used by such parent for the benefit of the child or for meeting the needs of the parent." (Internal quotation marks omitted.) Battistotti v. Suzanne A ., 182 Conn. App. 40, 52 n.8, 188 A.3d 798 (2018).

In Fox v. Fox , 152 Conn. App. 611, 632, 99 A.3d 1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014), this court held that the trial court erred in determining the defendant's modified child support obligation because it based its calculations on the defendant's imputed income and not on his actual income and the minor children's demonstrated needs. "Under the guidelines, the child support obligation first is determined without reference to earning capacity, and earning capacity becomes relevant only if a deviation from the guidelines is sought" under § 46b-215a-5c (b) (1) (B) of the Regulations of Connecticut State Agencies. (Internal quotation marks omitted.) Id., 635. "[T]he amount of support determined without reference to the deviation criteria is presumed to be the correct amount of support, and that presumption may only be rebutted by a specific finding on the record that the application of the guidelines would be inequitable or inappropriate under the circumstances of a particular case. When the latter is true, § 46b-215a-3 (b) (1) (B) [of the Regulations of Connecticut State Agencies, now § 46b-215a-5c (b) (1) (B) ] allows deviation from the guidelines on the basis of a parent's earning capacity." (Internal quotation marks omitted.) Id.

"Given this regulatory framework, a court errs in calculating child support on the basis of a parent's earning capacity without first stating the presumptive support amount at which it arrived by applying the guidelines and using the parent's actual income and second finding application of the guidelines to be inequitable or inappropriate." (Emphasis in original.) Battistotti v. Suzanne A ., supra, 182 Conn. App. at 52 n.8, 188 A.3d 798 ; see also Barcelo v. Barcelo , supra, 158 Conn. App. at 215, 118 A.3d 657 ; Fox v. Fox , supra, 152 Conn. App. at 635, 99 A.3d 1206.

In the present case, the trial court did not determine the defendant's actual income and then calculate the presumptive child support amount. The record does not reflect a finding by the court about the defendant's actual income. As in Fox , the trial court erroneously calculated the defendant's child support obligation on the basis...