Kirwan v. Kirwan

• Decision Date: 23 October 2018
• Docket Number: AC 40008, (AC 40047)
• Court: Connecticut Court of Appeals
• Parties: Chelsea Chapman KIRWAN v. Laurence KIRWAN

185 Conn.App. 713

197 A.3d 1000

Chelsea Chapman KIRWAN

v.Laurence KIRWAN

AC 40008, (AC 40047)

Appellate Court of Connecticut.

Argued May 30, 2018

Officially released October 23, 2018^*

Alan Scott Pickel, Stamford, for the appellant (defendant).

Joseph T. O'Connor, Stamford, for the appellee (plaintiff).

Sheldon, Prescott and Bear, Js.

PRESCOTT, J.

In these consolidated appeals arising out of a marital dissolution action, we must determine, inter alia, whether an arbitrator's factual finding regarding the gross income of a party, which was made in the course of determining alimony and the equitable distribution of marital assets, is binding on the court with respect to its subsequent adjudication of child support, an issue that was statutorily and contractually excluded from the arbitration. We conclude that it was proper for the trial court to make its own independent findings regarding gross income, unfettered by the previous findings of the arbitrator.

The present appeals arose following the court's October 23, 2015 judgment dissolving the marriage of the plaintiff, Chelsea Chapman Kirwan, and the defendant, Laurence Kirwan. The judgment incorporated by reference a pendente lite arbitration award that had resolved most of the issues raised in the dissolution action, including alimony, the distribution of marital assets, and the enforceability of a premarital agreement. Both the parties' arbitration agreement and the arbitrator's award, however, expressly reserved for the Superior Court resolution of issues related to custody and child support.¹ Following an evidentiary hearing, the court, on December 7, 2016, issued child support orders, which, by agreement of the parties, were made retroactive to the date of the dissolution judgment. The defendant appeals from those child support orders (AC 40008). The defendant also appeals from a subsequent remedial order that the court issued in response to a motion for contempt and that required the defendant to make a $91,000 lump sum payment to the plaintiff to satisfy a child support arrearage resulting from the court's December 7, 2016 order making his child support obligation retroactive to October 23, 2015 (AC 40047).²

The defendant claims on appeal that the court improperly (1) failed to adhere to the arbitrator's factual findings regarding his gross income, as set forth in the arbitrator's award, despite the fact that the court incorporated the arbitrator's award by reference into the dissolution judgment; (2) found that his gross income from employment was $400,000; (3) calculated his gross rental income from property awarded to him as part of the division of marital assets; (4) failed to take into consideration his payments of premiums for life insurance policies for the benefit of his children;³ (5) failed to explain why the plaintiff was entitled to support payments that exceeded the child support guidelines' minimum presumptive amount; (6) gave prospective credit for voluntary child support payments made during the pendency of the child support hearings rather than crediting them against the lump sum arrearage; (7) ordered a lump sum repayment of the child support arrearage rather than permitting repayment on a periodic basis as contemplated by the child support arrearage guidelines; and (8) failed to dismiss the plaintiff's motion for contempt rather than considering the merits of the motion. We conclude that the defendant's claim regarding the manner in which he was credited for voluntary child support payments is moot because there is no practical relief that we could order in light of the fact that he has received full credit for such payments, and that the arguments advanced in support of the remainder of the defendant's claims are unpersuasive. Accordingly, we affirm the judgments of the court.

The following facts and procedural history are relevant to our resolution of these appeals.⁴ The parties were married in 2001. The defendant is a plastic surgeon with offices in New York, Norwalk, and London, as well as a consultant and a professor of plastic surgery. The plaintiff is college educated and worked in pharmaceutical sales until shortly after she married the defendant, at which time she worked for the defendant in his medical practice. The parties have three minor children together, one of whom has special needs.⁵ Prior to their marriage, the parties entered into a premarital agreement that, in relevant part, limited the plaintiff's alimony in the event of divorce to $50,000 a year for five years and allocated 45 percent of the value of the marital home to the plaintiff as her share of marital property. In September, 2012, the plaintiff initiated an action to dissolve the parties' marriage.

On May 26, 2015, the court, Tindill, J. , approved an agreement by the parties to enter into binding mediation/arbitration of the dissolution action.⁶ Pursuant to the parties' arbitration agreement, which was made an order of the court, "[t]he parties agree[d] that the following issues in their action for dissolution of marriage shall be the subject of mediation and, if the parties are unable to resolve these issues via mediation, to binding arbitration ...." The list of issues to be resolved in arbitration included the validity and enforceability of the premarital agreement; the validity of an alleged rescission of that premarital agreement; a determination of alimony in accordance with General Statutes § 46b-82 ; an equitable division of marital property, assets, and liabilities pursuant to General Statutes § 46b-81 ; division of attorney's fees and guardian ad litem fees; and any other relief deemed appropriate by the arbitrator "except as it pertains to child custody and issues of child support."

On August 4, 2015, the arbitrator, former Superior Court Judge Elaine Gordon, issued her arbitration award. As a preliminary matter, the arbitrator determined that the parties' premarital agreement was unconscionable, and thus unenforceable, due to "the present, uncontemplated circumstances" of the parties.⁷ The arbitrator issued a number of orders regarding alimony and the distribution of marital assets, including an order directing the sale of the marital home. In support of her orders, the arbitrator made several factual findings, including that "[t]he defendant's annual [gross] income is found to be approximately $400,000 per year based on his income tax returns, business financial statements and the information he has provided to lending institutions on his applications." As previously noted, the arbitration award indicated that "[t]he issues of custody, access, child support, maintenance and cost of medical insurance for minor children and unreimbursed medical expenses are reserved to the Connecticut Superior Court."⁸

On September 1, 2015, the defendant filed a motion asking the court to confirm the arbitration award and to render judgment dissolving the parties' marriage in accordance with the arbitration award. On that same date, the plaintiff filed a motion asking the court to issue orders on the unresolved matters of child support and postsecondary educational expenses. Neither party filed an objection to the other party's motion, and the matters were set down for a hearing on October 23, 2015. At that time, the court rendered a judgment of dissolution of marriage that incorporated by reference the arbitration award and subsequent clarification.⁹ The parties agreed that the court would determine the defendant's child support obligations, including the issue of unreimbursed medical expenses and child care, after an evidentiary hearing, and that child support obligations would be made retroactive to the date of dissolution.

The court conducted an evidentiary hearing on the issue of child support and on certain other postjudgment motions of the parties beginning on December 23, 2015, and continuing to January 22, May 25, June 20 and June 29, 2016. Both parties were present at all hearings and represented by counsel. Both parties testified and submitted a number of exhibits into evidence.

On December 7, 2016, the court issued a memorandum of decision regarding child support. The court indicated that it carefully had reviewed the parties' various claims for relief, memoranda in support thereof, trial briefs, replies, evidence, testimony, relevant rules, statutory authority, case law, and the arguments of counsel. The court made a number of credibility determinations and factual findings, including that neither party "was credible regarding their expenses for the children" and that "[t]he defendant's testimony and evidence regarding his sources of income was not credible." The court found that, "[b]ased on the credible evidence before the court, the defendant has a gross annual income of $560,637—$400,000 gross income from employment as Dr. K Services, P.C., plus $160,637 of rental income from various real estate investments." The court also found that "[t]he parties' combined net weekly income is $7990" and, thus, that "[t]he parties' net weekly income exceeds the $4000 limit contained within the child support guidelines." The court calculated that "[f]or three children, the presumptive amount of child support is between $824 and $1564 per week ...."¹⁰

The court ordered that the defendant "shall pay $1500.00 per week in child support for the parties' three children, retroactive to October 23, 2015 ...." (Emphasis added.) The court also ordered that the plaintiff is responsible for 25 percent of any unreimbursed medical expenses and child care, and the defendant is responsible for the remaining 75 percent. Moreover, "[t]he [d]efendant shall be given credit for the $18,432.41 in voluntary, postjudgment child support payments made from the date of the dissolution through June 30, 2016." The court instructed the defendant that if he claimed any additional support payments after June 30, 2016, he should provide the plaintiff's counsel with proof of those payments within one...