Lesueur v. Lesueur, AC 39759

• Citation: 186 Conn.App. 431,199 A.3d 1082
• Decision Date: 04 December 2018
• Docket Number: AC 39759
• Court: Appellate Court of Connecticut
• Parties: Janine LESUEUR v. Andrew LESUEUR

186 Conn.App. 431

199 A.3d 1082

Janine LESUEUR

v.Andrew LESUEUR

AC 39759

Appellate Court of Connecticut.

Argued March 23, 2018

Officially released December 4, 2018

Janet A. Battey, with whom were Olivia M. Hebenstreit and, on the brief, Gaetano Ferro, New Canaan, for the appellant (plaintiff).

Harold R. Burke, Greenwich, for the appellee (defendant).

Lavine, Prescott and Eveleigh, Js.

LAVINE, J.

In this postmarital dissolution appeal, the plaintiff, Janine LeSueur, appeals from the postjudgment orders of the trial court granting the motion for modification of custody and child support filed by the defendant, Andrew LeSueur, and denying her motion for modification of unallocated alimony and child support. Specifically, the plaintiff claims that the court, Tindill, J. , (1) abused its discretion by granting the defendant's motion to modify custody and child support because the child support order is predicated on clearly erroneous factual findings and because it terminated the defendant's child support obligation retroactively without sufficient information to evaluate the parties' financial circumstances, and without considering that she continued to incur and pay expenses for the parties' son from September 2, 2015, until the date of the hearing; (2) misconstrued the parties' separation agreement (agreement) regarding the parties' obligations to pay for their children's postsecondary education; and (3) abused its discretion by denying her motion to modify unallocated alimony and support. We affirm in part and reverse in part the judgment of the trial court.

The parties' marital history previously was set forth in LeSueur v. LeSueur , 172 Conn. App. 767, 162 A.3d 32 (2017), which concerned an appeal by the defendant from certain postjudgment motions (defendant's appeal). The parties were married on November 28, 1992, and divorced on January 27, 2011. Id., at 770, 162 A.3d 32. At the time of dissolution, "the parties had two minor children: a daughter, born in July, 1997; and a son, born in January, 1999. The judgment of dissolution incorporated the parties' separation agreement that provided that the plaintiff and the defendant would have joint legal custody and the plaintiff primary physical custody of the two children. The separation agreement also provided ... that the defendant ... pay the plaintiff unallocated alimony and child support from March 1, 2011 until June 30, 2020." Id. Subsequently, the defendant assumed primary physical custody, first of the parties' daughter; id., at 770–71, 162 A.3d 32 ; and then their son. The defendant's appeal concerned issues related to child support for the parties' daughter. The present appeal concerns child support related to their son, among other things, and is factually and procedurally distinct from the defendant's appeal.

The record in the present appeal reveals the following procedural history. On August 14, 2015, the defendant filed a motion to modify custody and child support, alleging in part that circumstances regarding custody of the parties' son had changed substantially. The defendant represented that the parties had agreed that, as of July 31, 2015, their son would live with the defendant and have liberal visitation with the plaintiff.¹ The defendant, therefore, asked the court to terminate his child support obligation to the plaintiff and to order the plaintiff to pay him child support.² On February 8, 2016, the court accepted the parties' stipulation regarding the son's custody change and scheduled a hearing on the issue of child support.

On February 10, 2016, the plaintiff filed two motions for modification of certain provisions of the separation agreement. In one motion, she claimed that there had been a substantial change in her financial circumstances due to a reduction in her employment and salary. She, therefore, asked the court to increase the amount of unallocated alimony and child support she received from the defendant.³ In her second motion, titled "Motion for Modification of Children's Expenses and Tuition, Postjudgment," the plaintiff claimed that there had been a substantial change in her financial circumstances, and therefore, she asked the court to order the defendant to pay 100 percent of the educational "add-on" expenses for their son and all costs associated with his private school tuition.⁴ (Internal quotation marks omitted.)

The court heard argument on the parties' motions on three days in the spring of 2016,⁵ and requested that the parties submit posthearing briefs. The court issued orders on the defendant's motion to modify child support on October 11, 2016. The court found that the parties' son had been living with the defendant since the date he filed his motion to modify child support and that he had continued to pay the plaintiff child support in the amount of $996.27 per week since September 1, 2015. The court granted the defendant's motion to modify child support, thereby terminating his child support obligation to the plaintiff retroactive to September 2, 2015, and ordered the plaintiff to reimburse the defendant for the child support that he had paid her while their son was living with him.

On October 13, 2016, the court issued orders on the plaintiff's motion for modification of alimony and support and motion for modification of children's expenses and private school tuition. The court found that the plaintiff's salary had decreased since the time of dissolution and that the decrease constituted a substantial change of circumstances. The court also found that the plaintiff's monthly expenses had decreased since January 27, 2011. In addition, the court found that the pretax income from employment formulae used to calculate the amount of unallocated support the defendant was to pay the plaintiff continued to be sufficient to fulfill the intended purpose of equalizing the incomes of the parties and supporting the children. See footnote 3 of this opinion. The court, therefore, denied the plaintiff's motion to modify unallocated alimony and child support.⁶

Pursuant to the oral request of the parties' counsel; see footnote 5 of this opinion; the court found that, had the family stayed intact, the parties more likely than not would have provided support for their children's postsecondary education. It also found that the parties are well educated and have the income and assets to assist their children with the cost of higher education. The court found ample evidence of the children's academic commitment, preparedness, and athletic prowess. The parties mutually had agreed that their daughter should attend Princeton University and that their son should attend Dartmouth College.⁷ The court also concluded that, pursuant to the agreement, neither the "UConn cap" nor the cost of a four year degree within the Connecticut state university system was applicable.⁸ The court, therefore, ordered the parties to "timely pay education support ... to Princeton University and Dartmouth College" as required by paragraphs 7 (f) and 13 (B) (iv) of the separation agreement. The plaintiff appealed.

We begin with the well settled standard of review in family matters. "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." (Internal quotation marks omitted.) Ferraro v. Ferraro , 168 Conn. App. 723, 727, 147 A.3d 188 (2016).

I

The plaintiff's first claim is that the court abused its discretion by granting the defendant's motion to modify custody and child support because (1) its child support order is predicated on a clearly erroneous factual finding, and (2) it terminated the defendant's child support obligation retroactively without sufficient information to calculate the parties' financial circumstances as of September 2, 2015, and without considering that she continued to incur and pay expenses related to the son.⁹ We agree that the court's order that the plaintiff pay child support is predicated on a clearly erroneous factual finding. We do not agree, however, that the court lacked sufficient information regarding the parties' financial circumstances as of September 2, 2015, or that the voluntary expenses the plaintiff incurred overcame the presumption that child support follows the child.

The following additional facts are relevant to our resolution of this claim. As previously stated, as of July 31, 2015, pursuant to the parties' informal agreement, their son began to reside with the defendant. On August 14, 2015, the defendant filed a motion for modification of custody and child support. He represented that there had been a substantial change in circumstances due to the fact that the parties' son was living with him and requested that, because he had become financially responsible for their son, his child support obligation to the plaintiff be terminated and that the plaintiff be ordered to pay him child support. On February 8, 2016, the court accepted the parties' stipulation that their son reside with the defendant and ordered a hearing to be held on the issue of child support.

The parties appeared before the court for an evidentiary hearing on March 28, May 17, and June 1, 2016. At that time, the defendant argued that the change in the primary physical custody of the parties' son required a modification of the child support portion of the unallocated support order because child support follows the child. He also argued that he had been paying the plaintiff child support pursuant to the court's July, 2015 order that modified his child support obligation when he assumed custody of the daughter. The defendant contended that, as a matter of law and equity, he was entitled to be reimbursed by the plaintiff for...