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MARGARET ROBINSON v. DONALD J. ROBINSON
(AC 38222)
DiPentima, C. J., and Beach and Pellegrino, Js.
Submitted on briefs November 18, 2016—officially released April 25, 2017
(Appeal from Superior Court, judicial district of New
London at Norwich, Goodrow, J. [dissolution
judgment]; Carbonneau, J. [motion for modification of
child support and custody].)
Donald J. Robinson, self-represented, the appellant
(defendant), filed a brief.
Opinion
BEACH, J. The defendant, Donald J. Robinson,
appeals from the judgment of the trial court denying
his postjudgment motion to modify his child support
obligation to the plaintiff, Margaret Robinson. The
defendant claims that the court erroneously denied his
motion for modification because (1) its calculation of
presumptive child support was erroneous; (2) it errone-
ously found shared physical custody; and (3) there was
no justification for ordering an upward deviation from
the presumptive amount of child support provided for
in the guidelines. We do not agree and affirm the judg-
ment of the trial court.
The record discloses the following relevant facts and
procedural history. The parties were married in Septem-
ber, 1993. There are four minor children issue of the
marriage. The parties were divorced on February 3,
2014. The divorce was uncontested and the court incor-
porated by reference the parties’ separation agreement
in its judgment of dissolution. That agreement provided
that the parties were to share joint legal custody of
their minor children, whose primary residence was to
be with the plaintiff, while the defendant was to enjoy
‘‘liberal and unrestricted parental access.’’ It also pro-
vided that the defendant was to pay the plaintiff $400
per week in child support for the first year subsequent
to the dissolution, $300 per week in the second year,
and $200 per week in the third year.1 The agreement
provided as well that the defendant was to pay periodic
alimony to the plaintiff in the amount of $1000 per
week.2
On June 18, 2015, the self-represented defendant3
moved for a downward modification of child support
and a modification in the formal custody status, such
that the primary residence of the three minor children,
who were then actually living with him, be changed to
reflect that reality.4 Following a hearing, the court
denied the defendant’s motion for modification of child
support. The court did order that the primary residence
of three of the four then minor children be changed so
that it would be with the defendant, but found, nonethe-
less, that there was a shared physical custody arrange-
ment. The court found that the presumptive amount of
child support according to the guidelines was $221 per
week, but that an upward deviation to $300 per week,
the same amount called for in the agreement and the
dissolution judgment, was justified in the circum-
stances. This appeal followed.
I
The defendant first claims that the court erred in its
calculation of presumptive child support, because, in
its application of the child support guidelines, it neither
reduced the defendant’s income by the amount of ali-
mony he paid nor increased the plaintiff’s income by a
corresponding amount. We disagree.
The defendant contends that § 46b-215a-1 (11) (B) of
the Regulations of Connecticut State Agencies is spe-
cific as to the items excluded from the definition of
‘‘gross income,’’ and because that list does not include
alimony as an exclusion, it must be included in the
income attributed to the plaintiff.5 He further argues
that the list in § 46b-215a (11) (A) of twenty-two items
included as ‘‘gross income’’ is nonexhaustive; therefore,
the fact that alimony is not included in that list is not
dispositive. The amount of alimony, then, should have
been added to the plaintiff’s income and subtracted
from the defendant’s income for the purpose of comput-
ing the proportionate shares of child support to be paid
by either party under the guidelines, according to the
defendant’s reasoning.
‘‘Our review of the court’s interpretation of . . .
§ 46b–215a–1 (11) . . . of the Regulations of Connecti-
cut State Agencies is plenary.’’ Lusa v. Grunberg, 101
Conn. App. 739, 761, 923 A.2d 795 (2007). Section 46b-
215a-1 (11) of the Regulations of Connecticut State
Agencies defines gross income as ‘‘the average weekly
earned and unearned income from all sources before
deductions . . . .’’ That section includes a nonexhaus-
tive list of twenty-two inclusions. In that list of inclu-
sions is: ‘‘alimony being paid by an individual who is
not a party to the support determination.’’ (Emphasis
added.) Regs., Conn. State Agencies § 46b-215a-1 (11)
(A) (xix). The specific wording of this inclusion makes
clear that only alimony received from a nonparty to the
support determination is included in gross income. See
Felician Sisters of St. Francis of Connecticut, Inc. v.
Historic District Commission, 284 Conn. 838, 850–51,
937 A.2d 39, 48 (2008) (‘‘the tenet of statutory construc-
tion referred to as expressio unius est exclusio alterius
. . . may be translated as the expression of one thing
is the exclusion of another. . . . [W]here express
exceptions are made, the legal presumption is that the
legislature did not intend to save other cases from the
operation of the statute.’’ [Internal quotation marks
omitted.]); see also Teresa T. v. Ragaglia, 272 Conn.
734, 751, 865 A.2d 428 (2005) (agency regulations con-
strued in accordance with accepted rules of statutory
construction). Because the defendant is a party to the
action, his alimony payments to the plaintiff are not
included as income to her. Further, alimony paid is not
listed as an exclusion serving to reduce the defendant’s
income for the purpose of determining child support
payments. See Regs., Conn. State Agencies § 46b-215a-
1 (11) (B). We conclude that the court properly applied
the guidelines to find that the presumptive amount of
child support to be paid by the defendant was $221
per week.6
II
The defendant next claims that the court erred in
finding a shared physical custody arrangement. We note
at the outset that this appeal presents a degree of analyt-
ical murkiness. The defendant’s motion for modifica-
tion was, by its terms, grounded on the proposition that
there had been a substantial change of circumstances
because of the change of residence of three of the
children. The court, which did not write a formal memo-
randum of decision but, rather, announced its decision
on the record and issued brief written orders, appears
to have reasoned that there had been a change of cir-
cumstances, but that the change did not equitably com-
pel a departure from the prior agreement in the amount
of child support to be paid. The court further based its
ultimate decision on a finding that the child support
guidelines provided for a presumptive payment of $221
per week, and an upward deviation to $300 per week
was justified, at least in part, by a finding of shared
physical custody and the inability of the plaintiff to
provide appropriately unless she received the greater
amount. In this context, the self-represented defendant
quite understandably chose to address the court’s rea-
soning in his statement of issues on appeal and for most
of his argument. The equitable considerations underly-
ing decisions whether to deviate from the guidelines
are consistent with the more general considerations
underlying motions to modify, and indeed overlap in
the unusual circumstances of this appeal.
We address, then, the defendant’s claim that the court
erred in denying his motion for modification, and justi-
fying an upward deviation from the guidelines, by find-
ing shared physical custody,7 despite having found that
three children primarily resided with the defendant.
The standards to be applied in reviewing such orders
are well established.
‘‘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 pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Trial courts have
broad discretion in deciding motions for modification.’’
(Internal quotation marks omitted.) Pite v. Pite, 135
Conn. App. 819, 824, 43 A.3d 229, cert. denied, 306 Conn.
901, 52 A.3d 728 (2012). ‘‘[T]o the extent that the trial
court has made findings of fact, our review is limited
to deciding whether those findings were clearly errone-
ous.’’ (Internal quotation marks omitted.) Elm City
Cheese Co. v. Federico, 251 Conn. 59, 68, 752 A.2d
1037 (1999).
‘‘General Statutes § 46b–86 governs the modification
of a child support order after the date of a dissolution
judgment. . . . Section 46b–86 (a) permits the court
to modify child support orders in two alternative cir-
cumstances. Pursuant to this statute, a court may not
modify a child support order unless there is first either
(1) a showing of a substantial change in the circum-
stances of either party or (2) a showing that the final
order for child support substantially deviates from the
child support guidelines . . . .’’ (Internal quotation
marks omitted.) Budrawich v. Budrawich, 156 Conn.
App. 628, 638, 115 A.3d 39, cert. denied, 317 Conn. 921,
118 A.3d 63 (2015).8
‘‘When presented with a motion to modify child sup-
port orders on the basis of a substantial change in
circumstances, a court must first determine whether
there has been a substantial change in the financial
circumstances of one or both of the parties. . . . Sec-
ond, if the court finds a substantial change in circum-
stances, it may properly consider the motion and . . .
make an order for modification. . . . A party moving
for a modification of a child support order must clearly
and definitely establish the occurrence of a substantial
change in circumstances of either party that makes the
continuation of the prior order unfair and improper.’’
(Internal quotation marks omitted.) Id., 639.
‘‘[I]n considering a motion to modify or terminate an
alimony or support order pursuant to § 46b–86, the
court is limited to a comparison between the current
conditions and the last court order. To obtain a modifi-
cation, the moving party must demonstrate that circum-
stances have changed since the last court order such
that it would be unjust or inequitable to hold either
party to it. Because the establishment of changed cir-
cumstances is a condition precedent to a party’s relief,
it is pertinent for the trial court to inquire as to what,
if any, new circumstance warrants a modification of
the existing order. . . . The power of the trial court to
modify the existing order does not, however, include
the power to retry issues already decided . . . or to
allow the parties to use a motion to modify as an appeal.
. . . [The court’s] inquiry is necessarily confined to a
comparison between the current conditions and the last
court order. To permit the trial court to reconsider
all evidence dating from before the original divorce
proceedings, in determining the adjustment of [sup-
port], would be, in effect, to undermine the policy
behind the well established rule of limiting proof of the
substantial change of circumstances to events
occurring subsequent to the latest [support] order—
the avoidance of relitigating matters already settled.’’
(Internal quotation marks omitted.) Rosier v. Rosier,
103 Conn. App. 338, 344–45, 928 A.2d 1228, cert. denied,
284 Conn. 932, 934 A.2d 247 (2007).
As discussed previously in this opinion, the defendant
alleged in his motion for modification that there had
been a substantial change of circumstances because
three of the four children had moved in with him. The
court found that the children had in fact moved, so
that circumstances had changed, to that extent. But the
court found that the change did not compel a lowering
of the amount of child support to be paid by the defen-
dant, at least partly because there effectively was shared
physical custody.9
The court’s finding of shared physical custody was
not clearly erroneous. The court noted that there was
no set parenting schedule, and that the children ‘‘pretty
much come and go as they please.’’ The court alluded
to the guidelines: ‘‘[S]hared physical custody means a
situation in which the physical residence of the child—
children is shared by the parents in a manner that
ensures that the children have substantially equal time
and contact with both parents and exactly equal sharing
of physical care and control of the children is not
required for a finding of shared physical custody.’’10 The
plaintiff’s testimony supported this finding: she
explained that the children ‘‘sleep at [the defendant’s]
house, but they’re at my house constantly . . . .’’ She
explained that ‘‘there’s no schedule,’’ ‘‘we never know
when you’re gonna have kids or not. . . . [T]he kids
are at any age where if . . . they’re happy here, things
are going well, fine, but the minute someone tells you
to do the dishes, you run to the other person’s house.’’
The court explained: ‘‘we’re not dealing with children.
We’re dealing with young adults, and it sounds like they
move fairly freely between your households . . . .’’ The
court concluded that ‘‘what’s really needed here is for
both households to be able to receive the children until
they graduate from high school.’’ The court did not
abuse its discretion in finding shared physical custody.
III
The final question is whether, having found the pre-
sumptive amount of child support and shared physical
custody, the court abused its discretion in deviating
upward from the presumptive amount. Stated from the
perspective of the motion for modification, the issue is
whether, in light of the change of circumstance, i.e.,
the change in primary residence, the court abused its
discretion in not decreasing the amount of child sup-
port. We conclude that the court did not abuse its dis-
cretion.
As discussed previously, a party seeking a modifica-
tion must show that the continuation of the prior order
would be unfair or inequitable. Budrawich v. Budraw-
ich, supra, 156 Conn. App. 639; Rosier v. Rosier, supra,
103 Conn. App. 338. Similarly, a court may deviate from
the presumptive amount of child care if the procedures
outlined in § 46b-215a-5c of the regulations are fol-
lowed. Notably, an agreement may provide a sufficient
basis for a deviation when the agreement cites deviation
criteria; the presumptive amount also ‘‘may be rebutted
by a specific finding on the record that such amount
would be inequitable or inappropriate in a particular
case.’’ Regs., Conn. State Agencies § 46b-215a-5c (a).
The regulations also provide for ‘‘special circum-
stances,’’ which include the best interests of the child
and ‘‘other equitable factors.’’ Regs., Conn. State Agen-
cies §§ 46b-215a-5c (b) (6) (D) and (E).
The court found that it would be inequitable to modify
the existing child support orders; it stated: ‘‘If I undo
what was done previously, even though the circum-
stances may have changed in terms of primary resi-
dence, it would be unfair and inequitable to, in essence,
elevate one household and diminish the other house-
hold. So, the orders will remain—the order that I’ve
been asked to modify will remain exactly where it is
right now . . . .’’ The court essentially found that,
under the circumstances in which the parties shared
custody of the children, and both households needed
to be maintained in a manner capable of receiving the
children, it would be unfair and inequitable to modify
the amount of child support specified in the separation
agreement, despite the fact that the amount was higher
than the presumptive amount contemplated by the child
support guidelines. The court expressed the concern
that if it ‘‘were to lower the child support . . . there
would [not] be sufficient remaining funds for the receiv-
ing parent to meet the basic needs of the children after
that deviation.’’ See Amodio v. Amodio, 56 Conn. App.
459, 467, 743 A.2d 1135 (purpose of guidelines is to
ensure that parent responsible for child support does
not pay less than amount dictated by guidelines), cert.
granted on other grounds, 253 Conn. 910, 754 A.2d 160
(2000) (appeal withdrawn September 27, 2000). Under
these circumstances we do not conclude that the court
abused its discretion in denying the defendant’s motion
for modification.
The judgment is affirmed.
In this opinion the other judges concurred.
1
During year two, three of the children, who are triplets, would turn
eighteen and during year three, the youngest child would turn eighteen.
2
There were provisions for the termination of alimony that are not relevant
to this opinion.
3
Both parties were self-represented at the hearing on the motion for modi-
fication.
4
This was the defendant’s second motion for modification. The defendant
previously had filed a motion for modification on March 20, 2015, which
was substantially similar to the second motion.
5
Although, according to the defendant, the lack of specific exclusion from
income lends support to the conclusion that the plaintiff’s income should
have been increased by the amount of alimony received, we note that there
similarly is no express deduction from income for alimony paid.
6
We note that there is no inherent unfairness in not adjusting the respec-
tive incomes to reflect alimony orders. In general, if child support orders
are calculated first, any award of alimony can then be made with the support
orders in mind. In this case, of course, the prior orders were entered by
agreement.
7
A close reading of the court’s reasoning leaves some doubt as to whether
a precise finding of shared physical custody mattered in the resolution of
the case. The court discussed shared physical custody in the context of the
need for the plaintiff to provide for the children, regardless of where they
formally resided. The deviation was also predicated on that equitable con-
cern, especially in light of the prior agreement to pay $300 per week.
8
As previously noted, both potential rationales for modifying the defen-
dant’s child support obligations are addressed in this opinion.
9
Section 46b-215a-1 (23) of the Regulations of Connecticut State Agencies
defines ‘‘[s]hared physical custody’’ as ‘‘a situation in which the physical
residence of the child is shared by the parents in a manner that ensures
the child has substantially equal time and contact with both parents. An
exactly equal sharing of physical care and control of the child is not required
for a finding of shared physical custody.’’
The defendant brought his motion for modification based on a substantial
change in circumstances, and did not base the motion for modification on
a claim that the final order substantially deviated from the child support
guidelines. The court’s finding of an arrangement in which the parents equally
share custody is relevant to whether the circumstances have substantially
changed under § 46b-86 so as to warrant a modification of the current
support order.
10
See footnote 9 of this opinion.