Unkelbach v. McNary, 15740

Citation244 Conn. 350,710 A.2d 717
Decision Date31 March 1998
Docket NumberNo. 15740,15740
CourtSupreme Court of Connecticut
PartiesLinda Joyce UNKELBACH v. John Thomas McNARY.

Gerald A. Roisman, with whom, on the brief, was Edith F. McClure, Hartford, for appellant (defendant).

John Q. Gale, Hartford, for appellee (plaintiff).


KATZ, Associate Justice.

The issues to be decided in this appeal are whether: (1) in modifying the defendant's child support obligation, the trial court properly considered contributions made by the defendant's domestic partner toward their shared living expenses as an element of the defendant's gross income under the Child Support and Arrearage Guidelines (guidelines); 1 (2) the trial court abused its discretion in ordering the defendant to pay $1000 per month in arrearage payments, in addition to his child support obligation of $252 per week; (3) the trial court abused its discretion by not considering the plaintiff's earning capacity in determining the parties' respective child support obligations; and (4) the trial court abused its discretion in awarding attorney's fees to the plaintiff for expenses incurred in the underlying action and on appeal. The defendant, John Thomas McNary, appeals from the postjudgment orders of the trial court modifying his child support obligation and awarding attorney's fees to the plaintiff, Linda Joyce Unkelbach, in connection with the postjudgment proceedings. After receiving notice of the defendant's appeal, the plaintiff filed a second motion for allowance of attorney's fees seeking an allowance with which to defend the appeal. The trial court, after a hearing, granted the motion and the defendant amended his appeal to include an appeal of that order. We transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199(c).

The facts that are relevant to this appeal are not disputed. The parties' marriage was dissolved on February 1, 1988. The separation agreement ordered into effect by the court on that date awarded primary physical custody of the parties' two minor children to the plaintiff, and ordered the defendant to pay child support in the amount of $375 per week. At the time of dissolution, the defendant earned a gross weekly wage of $1778.85, and the plaintiff earned a gross weekly wage of $74.40.

As of January 1, 1995, the defendant unilaterally ceased making his court ordered child support payments and, instead, began to make payments that were smaller in amount and sporadic in occurrence. On February 23, 1995, the plaintiff filed a motion for contempt based upon the defendant's failure to pay the child support as ordered. Shortly thereafter, on March 1, 1995, the defendant filed a motion for modification of his child support obligation. The court issued an interim order reducing the defendant's child support to $108 per week, and the parties, with the approval of the court, agreed that any permanent modification of child support would date back to March 1, 1995.

In the fifteen months prior to the time when the defendant ceased making the initial court-ordered child support payments, a number of changes in his circumstances occurred. In October, 1993, his employment was terminated as a result of company downsizing, and he was provided with fifty weeks of severance pay at his full salary rate. He received his last severance check in October, 1994. From approximately October, 1994, through May, 1995, he experienced health problems for which he was twice hospitalized and underwent two surgeries. In July, 1995, the defendant applied for and subsequently received twenty-six weeks of unemployment compensation. Eventually, in April, 1996, he began to receive pension distributions from his former employer in the gross amount of $311 per week.

Following the termination of his employment, the defendant formed a business known as Construction Consultants and Managers Inc. (Construction Consultants). In 1995, he transferred his interest in the business to Joan Shoham, his domestic companion, for the purpose of obtaining minority-owned business status in order to enhance the company's ability to obtain contract work. Both the defendant and his companion receive compensation from Construction Consultants, although limited in amount. As of October, 1996, the defendant was receiving $202 per week in gross compensation from Construction Consultants, and Shoham had received a total of $7200 for the year to that date. The trial court found that there was insufficient evidence to determine accurately how much compensation, if any, would redound to the defendant from Construction Consultants in the future, but noted that the success of the business had thus far been limited.

The defendant and Shoham, who have lived together in the defendant's home for approximately the past eight years, commingle their personal incomes to a certain extent and use a joint bank account to pay for household expenses. The trial court found that since October, 1995, Shoham's personal funds have been the source of all monthly mortgage payments on the defendant's home, all monthly payments on the defendant's home equity loan, all monthly loan payments on the defendant's automobile, and all periodic payments for home electricity, cable service, natural gas service, telephone service, property taxes on the residence, groundskeeping, and groceries. Shoham testified that she makes these payments as gifts to the defendant and does not expect to be reimbursed by him.

Since the dissolution of the parties' marriage, the plaintiff has been employed on a full-time basis. From November, 1994, until November, 1995, she was employed as a branch director and supervisor for a home nursing care provider, at a salary of approximately $60,000 per year. The plaintiff voluntarily left that employment because it involved long hours that she felt interfered with her responsibilities as the primary caretaker of the parties' minor children. Thereafter, she obtained employment requiring her to work only between the hours of 8:30 a.m. and 4 p.m. at a salary of approximately $41,000 per year, or a gross income of $800 per week.

In considering the defendant's motion for modification of his child support obligation, the trial court concluded that a substantial change in circumstances had occurred affecting the ability of each of the parties to provide support for their minor children. The court concluded that the defendant had established his inability to comply with the original child support order due to changes in his health and employment. Although the court found that the defendant's capacity to earn income in the future had not diminished, it did not, as a result, deviate from the guidelines in setting the amount of his child support obligation. Instead, in accordance with its finding of a substantial change in circumstances, the court modified the defendant's child support obligation from $375 per week to $252 per week. The court also ordered the defendant to pay $1000 per month in child support arrearage payments, and awarded the plaintiff attorney's fees in the amount of $1000. Subsequently, the court awarded an additional $3250 in attorney's fees to the plaintiff for the purpose of defending the appeal.

In deciding upon the modified amount of child support to be ordered, the court considered the defendant's present ability to pay. In that regard, it found that the defendant's gross income included amounts contributed by Shoham toward their household expenses. Recognizing that Shoham shared in the value of most of her contributions toward the household expenses, the court found the value of Shoham's contributions to the defendant to be $514 per week, or one half of their actual value, with the exception of the amount paid toward the defendant's automobile loan, which the court included in full in its calculations. 2


The defendant first claims that the trial court incorrectly interpreted the definition of gross income set forth in the guidelines when it included in his gross income contributions made by Shoham toward their shared living expenses. According to the defendant, the definition of gross income should not be read to include such contributions because the guidelines preclude consideration of the income of a subsequent spouse or domestic partner in calculating child support, and the inclusion of the contributions leads, in effect, to consideration of Shoham's income. The plaintiff argues, conversely, that including the contributions in the defendant's gross income is not the same as including Shoham's actual income, but only amounts to consideration of specific gifts regularly made by her and, therefore, does not contravene the guidelines. In that regard, the plaintiff contends that inclusion of the contributions in income is in accord with the existing law of this state, which recognizes that gifts received on a regular and consistent basis, regardless of their source, are includible in income in the context of dissolution proceedings where financial orders are being determined. We agree with the plaintiff.

Resolution of this issue requires us to interpret the statutory scheme that governs child support determinations in Connecticut, and, therefore, constitutes a question of law. Charles v. Charles, 243 Conn. 255, 258, 701 A.2d 650 (1997). "[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision...." (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 143, 676 A.2d 795 (1996). When the question of law involves statutory interpretation, that determination is guided by well settled principles. We have previously stated that in construing statutes, "[o]ur fundamental...

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