Anketell v. Kulldorff, 207 Conn. App. 807 (2021) (child support deviations & earning capacity; counsel fees for appeal § 46b-62; discretion for relocation and custodial orders)
Officially released September 28, 2021.
In Short: An Appellate Refresher: 1) Articulations can help uphold a decision on appeal; (2) a review of the requirements of child support deviations and earning capacities; (3) a review of the difference between dissipation of assets and equitable distribution in light of financial decisions; (4) a review of the criteria for counsel fees to defend appeal under § 46b-62; and (5) an example of broad discretion on relocation at time of dissolution and custody orders.
Husband appealed the dissolution judgment, claiming that the trial court (1) erred by failing to identify the presumptive child support obligation under the child support guidelines before entering a support order based on a deviation, (2) erred in calculating the parties’ incomes, (3) erred in awarding the plaintiff a lump sum property settlement, (4) abused its discretion in awarding appellate attorney’s fees to the plaintiff, and (5) abused its discretion in entering its custodial orders.
The parties were married in 2011 and had two children. The matter was tried before Judge Green in 2018. Judge Green found the following relevant facts: This was each party’s second marriage. Husband shared custody and had primary residence of a child from a prior marriage. Husband owned the marital home in Ashford prior to the marriage. Husband paid for Wife’s nursing education at UConn during the marriage. Wife held a full-time nursing position in Worcester prior to the birth of the children, after which she returned as a per diem employee and her hours and income varied considerably. Husband possessed a PhD and worked as a biostatistician in Boston, where he receives income from drug safety research grants, which varies depending on the number of ongoing grant-funded projects.
At time of trial, Wife had moved to a rental property in Tolland, but owned a home in Worcester, MA, which was occupied by tenants to provide a modest income. Wife planned to move to her Worcester home following the dissolution. Wife had not participated in her employee retirement program, in part, to pay a balloon payment on a second mortgage on her Worcester residence during the marriage. It was disputed whether such decision was made jointly or unilaterally. Husband unilaterally made two $10,000 mortgage payments above what was customary or due on the Ashford home. After the automatic orders issued, Husband unilaterally transferred funds into CHET accounts for the parties’ children and for his older child. The parties owned a home and business in Nicaragua which they purchased in 2015. The value of that property was volatile and somewhat theoretical in light of unrest in the country.
Family relations conducted an evaluation, concluding that Wife should be permitted to relocate to Worcester which would be primary residence for the children for school purposes and that they otherwise share access per the pendente lite plan.
The trial court entered the following orders relevant to the appeal: No alimony to either party. Joint legal and physical custody of the children. Relocation and primary residence for school purposes to Wife in Worcester. Husband to maintain the CHET accounts for the benefit of the children. Husband to pay $325/week child support as a downward deviation from a guideline amount of $473/week based on the shared parenting plan, the increased commute associated with Wife’s residence in Worcester, Husband’s variable income and his earning capacity which is “very near or at the top of his salary range.” Husband to pay Wife a lump sum property settlement of $52,500 including marital share of the Nicaragua house, partial reimbursement for CHET funds, and mortgage overpayments to the Ashford home. Husband to transfer $175,00 from retirement and Wife to transfer her interest in the Nicaragua property. Husband to retain the Ashford home and Wife to retain the Worcester home.
Husband appealed. Wife filed a motion for order of attorney’s fees for her $25,000 appellate retainer. The trial court granted Wife’s motion for attorney’s fees and Husband amended his appeal to include that issue.
The trial court provided an articulation regarding its determination of the parties’ incomes and earning capacities as well as the value of the assets that had been distributed. The trial court stated that shorter work weeks seemed appropriate for Wife given the nature of her work, crediting her testimony that it maximized her hourly rate and provided flexibility for caring for the children. The trial court found that Husband’s income was capped at $200,000, which he had been earning at time of filing and which he previously earned. At time of trial he was earning $100,000 and his income was somewhat variable. The trial court indicated that child support based on current incomes would be $300/week, but that based on the earning capacity of Husband a deviation to $473/week would be appropriate, subjection to downward deviation for shared custody and commuting expenses to reach the final result of $325/week. The trial court further articulated values for the various assets and transfers.
The trial court further articulated the specific dollar amounts for earning capacities and values for each asset. The trial court found Husband had an earning capacity of $198,536 and Wife had income of $56,576, along with corresponding net incomes. The trial court also articulated the value of CHET accounts.
Husband’s first claim on appeal was that the trial court erred in calculating the presumptive child support amount pursuant to the guidelines by calculating it based on his earning capacity rather than his actual income. To properly deviate, the trial court must (1) make a finding as to the presumptive child support based on actual earnings, (2) a specific finding that application of the guidelines would be inequitable and inappropriate, and (3) an explanation as to which deviation criteria the court is relying upon. The Appellate Court applied plenary review to the construction of the judgment as to whether the trial court based the presumptive support amount on Husband’s earning capacity or his actual income. The Appellate Court concluded that the trial court’s plain language as expressed in its articulation was that it used Husband’s current income. The Appellate Court further concluded that the trial court made the requisite findings and provided ample justification for its deviation.
Husband’s second claim on appeal was that the trial court erred in basing its child support award on improper incomes for both parties. He claims that (1) the determination of his earning capacity was clearly erroneous, (2) the trial court used the wrong actual income for Wife, and (3) that the trial court should have imputed an earning capacity to Wife based on more than eighteen hours per week. The Appellate Court reviewed these claims under the abuse of discretion and clearly erroneous standards.
Husband argued that the trial court based his earning capacity on grants which were beyond his control, three of which had since expired following the submission of his 2017 financial affidavit. The Appellate Court found that the trial court had assessed Husband’s grant process and credibility and its factual findings were not clearly erroneous.
The Appellate Court found that the error as to Wife’s income was a scrivener’s error of no consequence. It found that the trial court properly referenced the applicable financial affidavit but accidentally recorded the number from a different financial affidavit.
The Appellate Court found no abuse of discretion in the trial court’s decision not to impute additional income to Wife based on its findings about the nature of the nursing profession and shift work in conjunction with flexibility for the children.
Husband’s third claim on appeal was that by ordering him to reimburse Wife for the voluntary payments he made on the mortgage on the marital home and contributions to the CHET account, the trial court effectively made a dissipation of assets finding but without the necessary elements to support such a finding. The Appellate Court applied plenary review to the construction of the judgment. The Appellate Court noted that the word dissipation did not appear anywhere in the decision or articulations, but that the language the trial court did use was consistent with equitable determinations involved in distribution of property. Use of the word “reimbursement” did not require a finding of dissipation. Essentially, the Appellate Court found that the trial court appropriately made an equitable determination under § 46b-81, rather than finding dissipation of assets.
Husband’s fourth claim on appeal was that the trial court erred in awarding Wife appellate counsel fees. Both parties had submitted financial affidavits and a hearing was held on that issue. Husband testified that he had borrowed money to pay his appellate attorney, lacked liquid assets, incurred credit card debt, could not access retirement without taxes and penalties, and that he did not know the value of the estate of his mother, which was being handled by siblings. Wife testified that she had borrowed money to pay her appellate attorney and anticipated owing between $50,000 and $80,000 in counsel fees by the end of the appellate process. The trial court found that Husband had a demonstrated earning capacity far in excess of his current income, which was still higher than Plaintiff’s income, as well as access to retirement funds and total assets nearly double those of Wife. Further, the trial court found that the legal costs would undermine the property award made to Wife. The trial court awarded $25,000 pursuant to § 46b-62(a), 46b-82 and specifically cited Hornung v. Hornung, 323 Conn. 144, 169-70 (2016).
The Appellate Court distinguished Hornung based on the fact that neither party here had the liquid funds available to pay their respective appellate counsel retainers. The Appellate Court found that, where the $25,000 retainer constituted almost 40% of Wife’s liquid assets, it was not abuse of discretion to award such attorney’s fees, as it would otherwise undermine the financial awards made in the judgment.
Husband’s fifth claim on appeal was that the custody orders were contrary to the best interest of the children in that the (1) permitted the relocation of the child, and (2) the 6:15 a.m. transfer time negatively impacts the quality of his time with the parties’ children. The Appellate Court reviewed for abuse of discretion and stated that Husband was essentially asking it to reweigh the evidence in his favor, which it declined to do. There was sufficient evidence before the court that neither aspect of the decision could reach the threshold of the trial court’s broad discretion in entering custodial orders under § 46b-56.
The judgment was affirmed.
