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JOHN RIGHI v. ALLISON RIGHI
(AC 38492)
DiPentima, C. J., and Mullins and Bishop, Js.
Argued January 12—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Hartford, Johnson, J. [dissolution judgment]; Albis, J.
[motion for modification].)
Joseph E. Prokop, for the appellant (plaintiff).
Susan T. Pearlman, for the appellee (defendant).
Opinion
BISHOP, J. This family law appeal requires us to
analyze the statutory requirements necessary for a party
to succeed on a postjudgment motion to modify, pursu-
ant to General Statutes § 46b-86 (a). The plaintiff, John
Righi, appeals from the judgment of the trial court grant-
ing the postjudgment motion of the defendant, Allison
Righi, to modify a marital dissolution judgment child
support order. On appeal, the plaintiff claims that the
court (1) improperly granted the motion to modify after
determining there had not been a substantial change
in circumstances; and (2) erred by finding that the disso-
lution court, in creating the original child support order,
failed to make a finding that applying the child support
guidelines would be inequitable or inappropriate, pursu-
ant to General Statutes §§ 46b-215b (a) and 46b-86 (a).
We affirm the judgment of the trial court.
The following factual and procedural background is
relevant to our consideration of the plaintiff’s appeal.
The plaintiff and the defendant were married on May
28, 2004, and had two children, one born in December,
2003, and one born in March, 2005. After an uncontested
hearing, the marriage of the parties was dissolved on
December 8, 2014. The court, Johnson, J., incorporated
the parties’ separation agreement into the judgment of
dissolution, which provided, inter alia, that the parties
would share joint legal custody of the two minor chil-
dren. Pursuant to the parties’ agreement, the court
ordered that the plaintiff’s house would be the chil-
dren’s principal place of residence, though ‘‘the parties
shall equally share parenting time . . . .’’ The
agreement and order also provided that ‘‘[n]either party
shall pay child support to the other party’’ and that
‘‘[t]his is a deviation from the child support guidelines
based on the parties’ shared parenting arrangement of
shared physical custody and the best interests of the
children.’’
At the dissolution hearing, both the plaintiff and the
defendant testified that they believed this was a fair
and equitable agreement and that it was in the best
interests of their children. As for the presumptive child
support amount pursuant to the child support guide-
lines, the court found that the defendant would have
had to pay $111 per week to the plaintiff if the children
primarily lived with the plaintiff, and the plaintiff would
have had to pay $256 per week to the defendant if the
children primarily lived with the defendant. When asked
by the court why she was asking the court to deviate
from the child support guidelines, the defendant testi-
fied that the defendant and the plaintiff ‘‘just decided
fifty/fifty. . . . I’ll take the costs [of the children] when
they’re with me, and [the plaintiff will] take the costs
when they’re with him.’’ She also testified that each
parent, while the children were in his or her custody,
would be ‘‘responsible for the costs of feeding, educat-
ing, and entertaining the children.’’ The court accepted
the parties’ agreement and stated: ‘‘In review of the
agreement and the child support guidelines, the court
feels the agreement is fair and equitable under all of
the circumstances and in the best interests of the two
minor children and will adopt the agreement as a final
order of the court.’’
On August 7, 2015, the defendant filed a postjudgment
motion to modify the child support order, claiming that
since the dissolution judgment, there had been a sub-
stantial change in circumstances, and that she was ‘‘in
need of financial help’’ and was no longer able to pay
for one half of the children’s expenses in addition to
her bills. The court, Albis, J., heard argument on this
motion on September 1, 2015, during which the defen-
dant testified that her circumstances had changed
because she was anticipating that her rent would
increase the following month; her hours at work did
not increase, as she had anticipated they would; and
the children’s expenses had increased. The plaintiff
opposed the defendant’s motion to modify and testified
that ‘‘nothing has really changed. . . . [The defendant
is] just not managing her money very wisely.’’
The court issued a memorandum of decision on Sep-
tember 3, 2015, granting the defendant’s motion. In its
written decision the court stated: ‘‘The court finds that
there has been no substantial change in circumstances
since the entry of judgment on December 8, 2014. . . .
However, the terms of the judgment providing for no
child support payments to either party represent a sub-
stantial deviation from the child support guidelines. A
review of the record of the proceedings on December
8, 2014, reveals no specific findings of the court that
would preclude consideration of the defendant’s
request for modification of child support pursuant to
§ 46b-86 (a) . . . .’’ The court continued: ‘‘The pre-
sumptive weekly child support obligation of the plaintiff
. . . as the parent with the higher net weekly income,
is found to be $266 pursuant to the child support guide-
lines. . . . But the court finds that it would be inequita-
ble or inappropriate to apply the presumptive guideline
support amount in view of the parties’ shared physical
custody arrangement . . . .’’ The court ordered the
plaintiff to pay weekly child support in the amount of
$100 to the defendant.
Thereafter, the plaintiff filed a motion to reargue,
claiming that the court should not have granted the
defendant’s motion to modify the child support order
because it found there had not been a substantial
change in circumstances. In denying the plaintiff’s
motion, the court stated: ‘‘[E]ven absent a substantial
change in circumstances, § 46b-86 (a) . . . provides a
second basis for modifying child support: that the prior
order substantially deviated from the child support
guidelines without a ‘specific finding on the record that
the application of the guidelines would be inequitable
or inappropriate.’ In the present case, the court found
that the prior order substantially deviated from the child
support guidelines and that no such specific finding
was made on the record. Therefore, the modification
of the child support order was permitted by § 46b-86
(a) notwithstanding the prior agreement of the parties
and the absence of a substantial change in circum-
stances.’’ This appeal followed.
We begin by setting forth the relevant standard of
review and legal principles. The plaintiff’s claims, that
the court did not have the authority to modify the child
support order, require us to analyze the court’s interpre-
tation and application of § 46b-86 (a) to the facts of
the case, and to determine whether the court acted in
accordance with its authority. Accordingly, because our
review requires an analysis of a legislative provision,
and contrary to the plaintiff’s assertions,1 we employ a
plenary standard of review. Coury v. Coury, 161 Conn.
App. 271, 293, 128 A.3d 517 (2015) (‘‘[O]ur deferential
standard of review [in domestic relations cases] . . .
does not extend to the court’s interpretation of and
application of the law to the facts. It is axiomatic that
a matter of law is entitled to plenary review on appeal.’’
[Internal quotation marks omitted.]).
Section 46b-86 (a) provides in relevant part: ‘‘Unless
and to the extent that the decree precludes modifica-
tion, any final order for the periodic payment of perma-
nent . . . support . . . may, at any time thereafter, be
. . . modified by the court upon a showing of a substan-
tial change in circumstances of either party or upon a
showing that the final order for child support substan-
tially deviates from the child support guidelines estab-
lished pursuant to [General Statutes §] 46b-215a, unless
there was a specific finding on the record that the appli-
cation of the guidelines would be inequitable or inappro-
priate. . . .’’2 We turn now to the plaintiff’s claims.
I
The plaintiff argues first that the court should have
denied the defendant’s motion to modify because the
defendant did not meet the statutory requirements for
postjudgment modification pursuant to § 46b-86 (a).
Specifically, the plaintiff argues that the court was
required to find that there had been a substantial change
in circumstances before it could modify the child sup-
port order, and, because it specifically found that there
had not been a substantial change in circumstances, it
improperly granted the defendant’s motion to modify.
This claim is wide of the mark.
Our case law is clear that § 46b-86 (a) creates two
alternative circumstances in which a court can modify
a child support order. ‘‘[Section] 46b-86 governs the
modification of a child support order after the date of
a dissolution judgment . . . [and] permits the court
to modify child support orders in two alternative cir-
cumstances.’’ (Citation omitted; emphasis added; inter-
nal quotation marks omitted.) Weinstein v. Weinstein,
104 Conn. App. 482, 491, 934 A.2d 306 (2007), cert.
denied, 285 Conn. 911, 943 A.2d 472 (2008). Those cir-
cumstances are when there is ‘‘(1) a showing of a sub-
stantial change in the circumstances of either party or
(2) a showing that the final order for child support
substantially deviates from the child support guidelines
absent the requisite findings.’’ Santoro v. Santoro, 70
Conn. App. 212, 218, 797 A.2d 592 (2002).
Accordingly, this court specifically has held that ‘‘[a]
court has the power to modify a child support order on
the basis of a substantial deviation from the guidelines
independent of whether there has been a substantial
change in the circumstances of the party.’’ (Internal
quotation marks omitted.) Weinstein v. Weinstein,
supra, 104 Conn. App. 495; see also McHugh v. McHugh,
27 Conn. App. 724, 728–29, 609 A.2d 250 (1992) (‘‘[O]nce
the court enters an order of child support that substan-
tially deviates from the guidelines, and makes a specific
finding that the application of the amount contained in
the guidelines would be inequitable or inappropriate
. . . that particular order is no longer modifiable solely
on the ground that it substantially deviates from the
guidelines. By the same token, in the absence of such
a specific finding, the order is continually subject to
modification on the ground of a substantial deviation
from the guidelines.’’ [Footnote omitted.]).
The court granted the defendant’s motion to modify
on the basis of the second modification criteria, that
there was a substantial deviation from the child support
guidelines without the requisite specific finding that
application of the guidelines would be inequitable or
inappropriate. Under these circumstances, it was not
necessary for the court to find first that there had been
a change in circumstances before granting the defen-
dant’s motion to modify. Accordingly, the court’s inter-
pretation of its statutory authority to modify the child
support order under § 46b-86 (a), even absent a finding
of substantial change in circumstances, was not in error.
II
The plaintiff next argues that the court’s decision to
grant the defendant’s motion to modify on the stated
basis that the court failed to make a specific finding
that following the child support guidelines would be
inequitable or inappropriate was erroneous because the
dissolution court’s finding that the agreement was fair
and equitable was tantamount to a determination that
application of the guidelines would be inequitable or
inappropriate. In his brief, the plaintiff argues: ‘‘It is
clear that the court, in finding the deviation from the
child support guidelines fair and reasonable, must have
concluded that given the shared parenting plan, the
guideline amounts would have been unfair and inequita-
ble. Indeed, requiring an additional finding that the
guideline amounts were unfair and inequitable after
finding the deviation fair and reasonable would be
redundant and an undue burden on the court.’’ We are
not persuaded.
In the exercise of our plenary standard of review, we
first set forth the relevant legal principles applicable to
our resolution of this claim. ‘‘The legislature has
enacted several statutes to assist courts in fashioning
child support orders. . . . The legislature also has pro-
vided for a commission to oversee the establishment
of child support guidelines, which must be updated
every four years, to ensure the appropriateness of child
support awards . . . . General Statutes § 46b-215a.’’
(Internal quotation marks omitted.) Maturo v. Maturo,
296 Conn. 80, 89–90, 995 A.2d 1 (2010). In support of the
application of these guidelines, § 46b-215b (a) provides:
‘‘The . . . guidelines issued pursuant to [§] 46b-215a
. . . shall be considered in all determinations of child
support amounts . . . . In all such determinations,
there shall be a rebuttable presumption that the amount
of such awards which resulted from the application of
such guidelines is the amount to be ordered. A specific
finding on the record that the application of the guide-
lines would be inequitable or inappropriate in a partic-
ular case . . . shall be required in order to rebut the
presumption in such case.’’ (Emphasis added.) This
exception to the application of the presumptive guide-
line amount is reiterated in § 46b-86 (a), which governs
the modifiability of support orders. Section 46b-86 (a)
provides in relevant part: ‘‘Unless and to the extent that
the decree precludes modification, any final order for
the periodic payment of permanent . . . support . . .
may, at any time thereafter, be . . . modified by the
court . . . upon a showing that the final order for child
support substantially deviates from the child support
guidelines established pursuant to [§] 46b-215a, unless
there was a specific finding on the record that the
application of the guidelines would be inequitable or
inappropriate. . . .’’ (Emphasis added.)
Section 46b-215a-5c (a) of the Regulations of Con-
necticut State Agencies provides in relevant part: ‘‘The
current support . . . contribution amounts calculated
under [the child support guidelines] . . . are presumed
to be the correct amounts to be ordered. The presump-
tion regarding each such amount may be rebutted by
a specific finding on the record that such amount would
be inequitable or inappropriate in a particular case.
. . . Any such finding shall state the amount that would
have been required under such sections and include a
factual finding to justify the variance. Only the deviation
criteria stated in . . . subdivisions (1) to (6), inclusive,
of subsection (b) of this section . . . shall establish
sufficient bases for such findings.’’3
Our courts have interpreted this statutory and regula-
tory language as requiring three distinct findings in
order for a court to properly deviate from the child
support guidelines in fashioning a child support order:
(1) a finding of the presumptive child support amount
pursuant to the guidelines; (2) a specific finding that
application of such guidelines would be inequitable and
inappropriate; and (3) an explanation as to which devia-
tion criteria the court is relying on to justify the devia-
tion. See Unkelbach v. McNary, 244 Conn. 350, 370, 710
A.2d 717 (1998) (‘‘the trial court did not calculate the
presumptively correct support order pursuant to the
guidelines, did not make a specific finding on the record
that application of the general rule would be inequitable
or inappropriate under these circumstances, and did
not include a justification for the variance’’); Syragakis
v. Syragakis, 79 Conn. App. 170, 176–77, 829 A.2d 885
(2003) (‘‘[s]ection 46b-215a-3 [now § 46b-215a-5c] of the
Regulations of Connecticut State Agencies contains the
deviation criteria . . . [and] provides that in addition
to making a specific finding that following the guide-
line[s] would be inequitable or inappropriate, the court
must state the amount that would have been required
under the guidelines and the deviation criteria relied
on by the court to justify [the] deviation’’); Barcelo v.
Barcelo, 158 Conn. App. 201, 215, 118 A.3d 657 (‘‘The
court in the present case failed to cite the presumptive
support amount . . . and then did not invoke the
defendant’s earning capacity as a deviation criterion in
calculating his child support obligation. It also did not
explain why an obligation calculated in accordance with
. . . the child support guidelines, would be inequitable
or inappropriate . . . .’’), cert. denied, 319 Conn. 910,
123 A.3d 882 (2015); Wallbeoff v. Wallbeoff, 113 Conn.
App. 107, 113, 965 A.2d 571 (2009) (‘‘the court in the
present case also deviated from the guidelines, did not
calculate the presumptively correct support order pur-
suant to the guidelines, did not make a specific finding
on the record that application of the general rule would
be inequitable or inappropriate under these circum-
stances and did not include a justification for the
variance’’).
In the case at hand, the plaintiff argues that a court
can satisfy the ‘‘specific finding’’ requirement by finding
an agreement that deviates from the guidelines to be
fair and equitable and that such a finding satisfies the
requirement that the court make a specific finding that
application of the guidelines would be inequitable or
inappropriate. In short, the plaintiff asserts that the
required specific finding can be implied from the court’s
other findings. The question we ultimately face, there-
fore, is whether the court correctly interpreted § 46b-86
(a) to require a court, pursuant to the ‘‘specific finding’’
language, to explicitly state that the application of the
child support guidelines would be inequitable or inap-
propriate before deviating from the guidelines. ‘‘We
approach this question according to well established
principles of statutory construction designed to further
our fundamental objective of ascertaining and giving
effect to the apparent intent of the legislature. . . . In
seeking to discern that intent, we look to the words of
the statute itself, to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter.’’ (Citation
omitted; internal quotation marks omitted.) Fahy v.
Fahy, 227 Conn. 505, 512, 630 A.2d 1328 (1993).
The plain language of the statute suggests that a court
must state explicitly on the record its specific finding
that applying the guidelines would be inequitable or
inappropriate. ‘‘The American Heritage College Diction-
ary (4th Ed. 2002) defines specific in relevant part as: 1.
Explicitly set forth; definite.’’ (Internal quotation marks
omitted.) Miller’s Pond Co., LLC v. New London, 273
Conn. 786, 826, 873 A.2d 965 (2005). Furthermore, the
legislative histories of §§ 46b-86 and 46b-215b are silent
regarding the legislative intent behind the use of the
phrase in § 46b-86 (a) requiring a ‘‘specific finding on
the record that the application of the guidelines would
be inequitable or inappropriate.’’ We can find no justifi-
cation in that history, therefore, for not applying the
phrase’s plainly stated requirement. See Fahy v. Fahy,
supra, 227 Conn. 513. In light of the statute’s plain lan-
guage and in the absence of any countervailing legisla-
tive history, we conclude that the enactment’s ‘‘specific
finding’’ requirement must be stated explicitly by the
court and cannot be inferred merely from the court’s
determination that deviation from the guidelines is fair
and equitable.
Though we had not, until now, specifically deter-
mined that the language of §§ 46b-215b and 46b-86
required an explicit finding that application of the guide-
lines would be ‘‘inequitable or inappropriate’’ before
deviating from the guidelines, we find instructive past
decisions in which this court has looked for such talis-
manic language signifying an explicit finding in
determining whether a court properly deviated from the
child support guidelines. See Syragakis v. Syragakis,
supra, 79 Conn. App. 177 (affirming court’s determina-
tion that the dissolution court, in fashioning a child
support order, properly deviated from the guidelines
because it ‘‘made all the necessary findings . . . to
rebut the presumption that the amount of support pro-
vided for under the child support guidelines was cor-
rect’’ when it stated on the record the presumptive
amount under the guidelines, specified which deviation
criteria it was using, and stated that the guidelines
amount ‘‘would be inequitable or inappropriate in this
particular case’’); Castro v. Castro, 31 Conn. App. 761,
766–67, 627 A.2d 452 (1993) (affirming court’s determi-
nation that the dissolution court, in fashioning a child
support order, properly deviated from the guidelines
because it ‘‘made a specific finding that the application
of the guidelines would be inequitable in this case’’
when it specifically stated ‘‘it would be inequitable to
follow the guidelines under these circumstances’’ and
based that determination ‘‘on two of the deviation crite-
ria set forth in the guidelines’’); Fish v. Igoe, 83 Conn.
App. 398, 409–10, 849 A.2d 910 (affirming court’s denial
of a motion to modify because the magistrate properly
deviated from the guidelines when it found the pre-
sumptive amount of child support, stated that it would
deviate from the guidelines ‘‘because to do otherwise
would be inequitable and inappropriate,’’ and based its
decision on deviation criteria), cert. denied, 271 Conn.
921, 859 A.2d 577 (2004); Pagliaro v. Jones, 75 Conn.
App. 625, 641, 817 A.2d 756 (2003) (affirming court’s
support order that deviated from the child support
guidelines because ‘‘[t]he court properly made devia-
tions . . . in response to findings that the contribu-
tions by [the plaintiff] caused an extraordinary
reduction in the plaintiff’s living expenses and that,
under those circumstances, it would be inequitable and
inappropriate not to order a downward deviation’’). Fur-
ther support for requiring such talismanic language
comes from previous decisions in which this court has
recognized that such a specific finding is a ‘‘rigorous
requirement’’; Fox v. Fox, 152 Conn. App. 611, 639, 99
A.3d 1206, cert. denied, 314 Conn. 945, 103 A.3d 977
(2014); and ‘‘has very real and meaningful conse-
quences . . . .’’ (Emphasis added.) McHugh v.
McHugh, supra, 27 Conn. App. 729.4
Accordingly, in order to deviate properly from the
child support guidelines in fashioning a child support
order, the court must fulfill each of the statutory
requirements for deviation from the guidelines and that
obligation includes a specific finding on the record that
application of the guidelines would be inequitable or
inappropriate given the circumstances of the case.
Absent such a finding, the order is modifiable pursuant
to § 46b-86 (a) because the ‘‘final order for child support
substantially deviates from the child support guidelines
. . . .’’ Santoro v. Santoro, supra, 70 Conn. App. 218.
In sum, in the present case, the court’s child support
order substantially deviated from the child support
guidelines, and the record is devoid of any specific
finding on the record by the court that following the
guidelines would be inequitable or inappropriate.
Although we agree with the plaintiff that the court did
make a specific finding on the record that the agreement
created by the parties, which substantially deviated
from the child support guidelines, was ‘‘fair and equita-
ble,’’ that is insufficient to satisfy the clear mandates
of § 46b-86 (a) requiring that the court make a ‘‘specific
finding’’ that application of the guidelines would be
inequitable or inappropriate in this situation. Because
the court failed to make the required specific finding,
the child support order was modifiable, despite the fact
that the court had found there had not been a substantial
change in circumstances. Accordingly, the court cor-
rectly interpreted the requirements of § 46b-86 (a) to
the facts of the case and acted within its statutory
authority to modify the child support order.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff argues in his brief that the court’s findings of fact are at
issue, and, therefore, are subject to the clearly erroneous standard of review.
The plaintiff also argues that the court’s granting of the defendant’s motion
should be reviewed under an abuse of discretion standard. We disagree
with the plaintiff’s assertion regarding our standard of review because in
both claims, the plaintiff questions the court’s authority to grant a modifica-
tion and not the amount ordered. Since the court’s authority stems from
legislation and our task is to assess the meaning of the legislation, our review
is plenary. Coury v. Coury, 161 Conn. App. 271, 293, 128 A.3d 517 (2015).
2
General Statutes § 46b-86 (a) further states: ‘‘There shall be a rebuttable
presumption that any deviation of less than fifteen per cent from the child
support guidelines is not substantial and any deviation of fifteen per cent
or more from the guidelines is substantial.’’ Neither the plaintiff nor the
defendant argues that the court’s deviation from the child support guidelines
in making its original child support order was not substantial. In fact, at
oral argument, the plaintiff admitted that there was ‘‘no question’’ that the
deviation was substantial.
3
The criteria enumerated in § 46b-215a-5c (b) of the regulations are: ‘‘(1)
Other financial resources available to a parent . . . (2) [e]xtraordinary
expenses for care and maintenance of the child . . . (3) [e]xtraordinary
parental expenses . . . (4) [n]eeds of a parent’s other dependents . . . (5)
[c]oordination of total family support . . . [and] (6) [s]pecial circumstances
. . . .’’ Shared physical custody is considered a ‘‘special circumstance’’ that
justifies deviation when ‘‘(i) such arrangement substantially: (I) reduces
expenses for the child, for the parent with the lower net weekly income,
or (II) increases expenses for the child, for the parent with the higher net
weekly income; and (ii) sufficient funds remain for the parent receiving
support to meet the needs of the child after deviation; or (iii) both parents
have substantially equal income.’’ Id., § 46b-215a-5c (b) (6) (A). The ‘‘[b]est
interests of the child’’ is also considered a special circumstance that justifies
deviation. Id., § 46b-215a-5c (b) (6) (D).
4
We recognize that in other circumstances, we have found that the use
of talismanic words is not required where a court’s memorandum of decision
contains all of the necessary findings to support the court’s conclusion. See
Pullman, Comley, Bradley & Reeves v. Tuck-it-Away, Bridgeport, Inc., 28
Conn. App. 460, 464, 611 A.2d 435 (court’s memorandum of decision con-
tained ‘‘all of the necessary subordinate findings to support the conclusion
that [the defendant] had anticipatorily breached the contract as claimed at
trial by [another defendant], even though it did not, in fact, use the talismanic
words ‘anticipatory breach’ ’’), cert. denied, 223 Conn. 926, 614 A.2d 825
(1992); Nielsen v. Wisniewski, 32 Conn. App. 133, 139, 628 A.2d 25 (1993)
(a finding of ‘‘wrongful conduct’’ was sufficient to affirm an award of punitive
damages pursuant to General Statutes § 42-110g). Here, however, requiring
that the court, before deviating from the child support guidelines, explicitly
state that the application of the guidelines would be inequitable or inappro-
priate is supported by the plain language of the statute requiring a ‘‘specific
finding,’’ as well as our previous case law recognizing the importance of
such a finding. See McHugh v. McHugh, supra, 27 Conn. App. 728–29; Fox
v. Fox, supra, 152 Conn. App. 639.