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JANINE LESUEUR v. ANDREW LESUEUR

(AC 38300)

DiPentima, C. J., and Prescott and Bear, Js.

Argued December 7, 2016—officially released May 9, 2017

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Hon. Stanley Novack, judge trial

referee; Tindill, J. [motion to open judgment and for

modification of custody and child support].)

Harold R. Burke, for the appellant (defendant).

Gaetano Ferro, with whom, on the brief, was Olivia

M. Hebenstreit, for the appellee (plaintiff).
Opinion

DiPENTIMA, C. J. In this postdissolution marital matter, the defendant, Andrew LeSueur, appeals from the

judgment of the trial court modifying custody and child

support orders that had been entered at the time of

the dissolution. The defendant contends that the court

erred in failing to (1) grant a child support overpayment

credit retroactive to any period prior to December 9,

2014, and (2) award child support to the defendant for

the time period between June, 2014,1 and the end of

the 2016 school year. We affirm the judgment of the

trial court.

We set forth the following facts and procedural history pertinent to this appeal. The plaintiff, Janine LeSueur, married the defendant on November 28, 1992. On

January 27, 2011, the marriage was dissolved. At that

time, 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, inter

alia, that the defendant would pay the plaintiff unallocated alimony and child support from March 1, 2011

until June 30, 2020.

In September, 2013, the parties’ daughter, who was

sixteen years old at the time, started to reside primarily

with the defendant.2 On June 3, 2014, the defendant

filed a postjudgment motion to open the judgment of

dissolution and for modification of custody and child

support, hereinafter referred to as the motion for modification. In that motion, the defendant explained that

‘‘[s]ince the date of judgment, the circumstances concerning the custody of the minor children have changed

substantially . . . [the daughter], now nearly [seventeen] years old, has stated that she wishes to reside

primarily with [the defendant] . . . . By agreement of

the parties, [the daughter] has resided temporarily with

[the defendant] for nearly nine months and she has

found this arrangement to be beneficial. . . . Given

that [the] defendant has been financially responsible

for [the daughter] during the period that she has resided

with him, and will be financially responsible for her

should [primary physical] custody of [the daughter] be

modified, child support payable from [the] plaintiff to

[the] defendant is appropriate and warranted.’’ In addition, the defendant’s motion for modification concluded

by requesting that the court: (1) modify the primary

physical custody of the daughter from the plaintiff to

the defendant;(2) afford the plaintiff liberal and flexible

parenting time with the daughter; (3) provide a child

support award for his care of the daughter; (4) modify

the parental notification requirement contained in the

separation agreement from four hours to twenty-four
hours; and (5) modify his child support obligation to

the plaintiff.

The defendant’s motion for modification came before

the court, Tindill, J., on May 7, 2015, and the court

issued a memorandum of decision on July 31, 2015. In

its memorandum of decision, the court set forth the

following procedural history relevant to this appeal.

The court began by explaining that on July 14, 2014,

the parties negotiated an agreement, which the court,

Heller, J., approved and entered as an order of the

court. ‘‘The agreement, among other things, 1) opened

the judgment, 2) modified [primary] physical custody

of [the daughter] to the defendant, 3) granted liberal and

flexible parenting time and telephone contact between

[the daughter] and the plaintiff, and 4) marked the

remaining issues contained in the motion off to be

reclaimed until either a September 10, 2014 status conference or one party notifying the other that [the daughter] living with the defendant was not in her best

interests.’’3

At the September 10, 2014 status conference, the

court, Colin, J., ordered the parties to complete a family

services intake within three weeks, which was delayed

until October 9, 2014. After meeting with the family

relations counselor, the parties informed the court, on

December 5, 2014, that they needed a date to enter the

agreement they negotiated with the assistance of family

relations. The parties entered a second agreement

regarding the pending motion for modification, which

was approved and ordered by the court, Novack, J., on

December 9, 2014. That ‘‘agreement provided for the

continuation of the July 14, 2014 [agreement] (the first

agreement on the pending motions) so long as the defendant encouraged and fostered a relationship between

[the daughter] and [the plaintiff,] and allowed [the

daughter] reasonable and flexible access between the

parties’ homes. The remaining issues in the defendant’s

motion—new child support orders and the [four] hour

parental notification requirement—were not addressed

in the two agreements.’’

On May 7, 2015, the court, Tindill, J., held a hearing

on the defendant’s motion for modification with respect

to, among other things, the plaintiff’s child support obligation for the daughter. With respect to the May 7, 2015

hearing, the court in its July 31, 2015 memorandum of

decision noted that the parties’ ‘‘separation agreement

contemplates modification for the substantial change

in circumstances claimed, namely a change in (one of)

the minor children’s primary residence.’’ The court then

stated that it found ‘‘that the custody and parenting

arrangement to which the parties stipulated in [their

separation agreement] was observed until September,

2013, when it was decided, by mutual agreement of the

parents with input from the child’s therapist, that their

daughter . . . would reside full-time with [the defen-
dant]. The defendant’s motion for modification, therefore, is granted.’’

In determining the amount of child support that was

appropriate under the circumstances of this case, the

court explained that it considered the Connecticut child

support guidelines and the parties’ finances. Accordingly, ‘‘[t]he court adopts the figure of $170 per week

offered by the defendant in his proposed orders for the

plaintiff’s child support obligation [for the daughter].

The court declines to make a finding regarding what

percentage of the January, 2011 unallocated support

order4

should be calculated as child support.’’ The court

further stated that although the defendant sought financial orders in his motion for modification, ‘‘he did not

submit a signed, sworn financial affidavit until ordered

to so by the court on May 22, 2015. Prior to June 8,

2015, the most recent financial affidavits filed were

those filed on January 27, 2011, at the time of the judgment of dissolution. . . . Given the current ages and

level of maturity of the parties’ children, the court finds

that the notification requirement of the separation

agreement should be adjusted.’’ (Footnote omitted.)

This appeal followed. Additional facts will be set forth

as necessary.

Before addressing the merits of the defendant’s

appeal, we first set forth our well established standard

of review in domestic relations matters. ‘‘[T]his court

will not disturb trial court orders unless the trial court

has abused its legal discretion or its findings have no

reasonable basis in the facts. . . . As has often been

explained, the foundation for this standard is that the

trial court is in a clearly advantageous position to assess

the personal factors significant to a domestic relations

case. . . . 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. . . . Notwithstanding

the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be

reversed if, in the exercise of its discretion, the trial

court applies the wrong standard of law.’’ (Citations

omitted; internal quotation marks omitted.) Gabriel v.

Gabriel, 324 Conn. 324, 336, A.3d (2017). Guided

by these principles, we address in turn each of the

defendant’s claims.

I

The defendant first claims that the court erred in

failing to grant a child support overpayment creditretroactive to any period prior to December 9, 2014. The

defendant presents two statutory bases to support his

claim. He contends that (A) pursuant to General Statutes § 46b-224, the court was obligated to issue a child

support credit retroactive to July 14, 2014, which was

the date that the court approved the parties’ first

agreement modifying the primary physical custody of
the daughter on a temporary basis and (B) pursuant

to General Statutes § 46b-86 (a), the court abused its

discretion in failing to issue a child support credit retroactive to June 30, 2014, which was the date that the

defendant’s motion for modification was served on the

plaintiff.5 We disagree.

A

We first address the defendant’s argument that, pursuant to § 46b-224, the court was obligated to issue a

child support credit retroactive to July 14, 2014, the

date that the court approved the parties’ first agreement

modifying the primary physical custody of the daughter

on a temporary basis. Specifically, the defendant contends that the court failed to apply § 46b-224, which

permitted him, as the obligor of child support, to suspend child support payments upon the court’s issuance

of the order modifying custody of the daughter on July

14, 2014. Therefore, he argues, his child support obligation for the daughter should have been modified retroactive as of July 14, 2014, rather than December 9, 2014.

We are not persuaded.

‘‘Section 46b-224 specifically addresses the question

of how a change in custody affects the payment of child

support . . . .’’ Tomlinson v. Tomlinson, 305 Conn.

539, 549, 46 A.3d 112 (2012). Under § 46b-224: ‘‘Whenever . . . the Superior Court, in a family relations matter, as defined in section 46b-1, orders a change or

transfer of the guardianship or custody of a child who

is the subject of a preexisting support order, and the

court makes no finding with respect to such support

order, such guardianship or custody order shall operate

to: (1) [s]uspend the support order if guardianship or

custody is transferred to the obligor under the support

order; or (2) modify the payee of the support orderto be

the person or entity awarded guardianship or custody of

the child by the court, if such person or entity is other

than the obligor under the support order. Thus, if the

obligor becomes the new primary custodial parent, the

obligor is no longer required to pay child support to

the former custodian. . . . The immediate result in

either case is the same: the originally designated payee

who no longer has custody of the child does not continue to receive support payments following the change

in custody, and the payments are retained by or redirected to the party who does have custody.’’ (Internal

quotation marks omitted.) Id., 549–50.

Moreover, ‘‘[m]odification, including retroactive

modification, of a child support order upon a change

of custody under § 46b-224, comports with the default

rule that child support follows the children, unless the

trial court has made a finding that another arrangement

is appropriate.’’ (Internal quotation mark omitted.)

Coury v. Coury, 161 Conn. App. 271, 299, 128 A.3d 517

(2015). For example, in Tomlinson, our Supreme Court

expressly noted that: ‘‘Child support . . . furnishes the
custodian with the resources to maintain a household

to provide for the care and welfare of the children; in

essence, the custodian holds the payments forthe benefit of the child. Consequently, once custody changes,

there is no immediately apparent reason for the former

custodian to continue to receive the payments because

the presumption is that the former custodian is no

longer primarily responsible for providing the children’s

necessary living expenses, including food, shelter and

clothing. In turn, permitting the diversion of funds away

from the parent providing for the care and well-being

of minor children when custody changes, pursuant to

the parents’ contractual agreement, would contravene

the purpose of child support.’’ Tomlinson v. Tomlinson,

supra, 305 Conn. 555.

Turning to the present case, the defendant argues

that the court did not give proper effect to § 46b-2246

when it modified his child support obligation retroactive to December 9, 2014, instead of the date that the

custody of the daughter was modified by a court order

on July 14, 2014. Specifically, the defendant’s brief provides: ‘‘[H]ad the defendant’s child support obligation

for [the daughter] been clearly identified in a separate

child support order, § 46b-224 would have permitted

him to suspend all child support payments upon the

issuance of the July 14, 2014 order. However, given that

the child support component of an unallocated order

must first be ascertained before payments may be permissibly suspended . . . the only manner by which

§ 46b-224 can be given effect is through the issuance

of a full credit for overpayments occurring during the

relevant period.’’7(Citation omitted.) We are not persuaded.

Although on July 14, 2014, the court approved and

entered as an order of the court the parties’ agreement

that modified the primary physical custody of the

daughter, this agreement, by its terms, modified the

custody of the daughter solely on a temporary basis

and that the plaintiff continued to pay forthe daughter’s

necessary living expenses after that date. Further, it is

§ 46b-86, rather than § 46b-224, which provides the

court with the discretion to determine the most appropriate date of retroactivity for child support awards.

See Hane v. Hane, 158 Conn. App. 167, 172–73, 118

A.3d 685 (2015).

With respect to our conclusion, we acknowledge that

there were multiple agreements modifying the custody

of the daughter during the pendency of the defendant’s

motion for modification. According to the parties’ first

agreement dated July 14, 2014, the primary physical

custody of the daughter was modified on a temporary

basis. The parties’ second agreement dated December

9, 2014, modified the primary physical custody of the

daughter on a permanent basis by continuing the order

of the July 14, 2014 agreement. In approving the parties’
second agreement and entering it as an order, the court

explained that December 9, 2014 was the date that ‘‘the

defendant knew or reasonably should have known . . .

that the living arrangement with his daughter was no

longer temporary . . . .’’

In addition, the record from the May 7, 2015 hearing

on the defendant’s motion for modification supports

the court’s decision to modify the defendant’s child

support obligation retroactive to December 9, 2014,

rather than July 14, 2014. As discussed in part I B of

this opinion, the record also reveals that the plaintiff

continued to provide monetary support for the daughter’s necessary living expenses after the parties entered

into the July 14, 2014 agreement. Specifically, at the

May 7, 2015 hearing, the plaintiff testified that she continued to pay for part of the daughter’s school tuition,

she provided the daughter with a monthly allowance,

she purchased her clothing, she provided and paid for

a credit card for her daughter, she paid her daughter’s

cell phone bill, she maintained a bedroom for her daughter at her house, and she had her daughter over for

weekly dinners. Although our Supreme Court previously has stated in Tomlinson, that ‘‘once custody

changes, there is no immediately apparent reason for

the former custodian to continue to receive the payments because the presumption is thatthe former custodian is no longer primarily responsible for providing

the children’s necessary living expenses,’’ in the present

case the plaintiff’s testimony rebuts such a presumption

as there was undisputed evidence indicating that she

continued to have expenses associated with the daughter’s care after entering into the July 14, 2014 agreement.

See Tomlinson v. Tomlinson, supra, 305 Conn. 555.

Forthe foregoing reasons, we conclude that the court

did not abuse its discretion in modifying the defendant’s

child support obligation retroactive to December 9,

2014, rather than to July 14, 2014, because it reasonably

determined that December 9, 2014, was the proper date

given that as of that date the primary physical custody

of the daughter ‘‘was no longer temporary.’’ (Emphasis added.)

B

We next address the defendant’s argument that, pursuant to § 46b-86 (a), the court should have issued a

child support credit retroactive to June 30, 2014, the

date that his motion for modification was served. We

disagree.

The defendant’s motion for modification was brought

pursuant to § 46b-86 (a), which ‘‘governs the availability

of retroactive modification of unallocated alimony and

child support orders.’’ Cannon v. Cannon, 109 Conn.

App. 844, 849, 953 A.2d 694 (2008). According to § 46b86 (a), ‘‘[n]o order for periodic payment of permanent

alimony or support may be subjectto retroactive modifi-
cation, except that the court may order modification

with respect to any period during which there is a

pending motion for modification of an alimony or support order from the date of service of notice of such

pending motion upon the opposing party . . . . We

have held previously that parties must comply strictly

with § 46b-86 (a) before a court may determine whether

to retroactively modify support orders.’’ (Emphasis

added; internal quotation marks omitted.) Coury v.

Coury, supra, 161 Conn. App. 294.

Although there is no bright line test for determining

the date of retroactivity of child support payments, this

court has set forth factors that may be considered.

Specifically, in Hane, we expressly noted that a ‘‘retroactive award may take into account the long time period

between the date of filing a motion to modify, or . . .

the contractual retroactive date, and the date that

motion is heard . . . . The court may examine the

changes in the parties’ incomes and needs during the

time the motion is pending to fashion an equitable

award based on those changes.’’ (Internal quotation

marks omitted.) Hane v. Hane, supra, 158 Conn. App.

176. Moreover, § 46b-86 (a) accords deference to the

trial court by permitting it to make a modification to

a party’s child support obligation retroactive to ‘‘any

period during which there is a pending motion for modification.’’ (Emphasis added.)

In the present case, the defendant’s motion for modification was served on June 30, 2014, and was pending

until the court issued its memorandum of decision on

July 31, 2015. See Lucas v. Lucas, 88 Conn. App. 246,

255–57, 869 A.2d 239 (2005) (motion for modification

was pending for purposes of retroactivity when initial

motion was undecided and relief sought did not change

from initial motion for modification to amended motion

for modification). During the time that the motion for

modification was pending, the court approved and

entered as an order the parties’ July 14, 2014 agreement,

which modified the primary physical custody of the

daughter on a temporary basis. On December 9, 2014,

the court ordered the change in custody of the daughter

on a permanent instead of a temporary basis. In its

memorandum of decision, the court expressly

explained its rationale for deciding to modify the defendant’s child support obligation retroactive to December

9, 2014, by stating that this was the date that ‘‘the defendant knew or reasonably should have known on this

date, when he made a second agreement with the plaintiff mother regarding modification of [the primary]

physical custody of [the daughter], that the living

arrangement with his daughter was no longer temporary . . . .’’

We conclude that a modification to the defendant’s

child support obligation retroactive to December 9,

2014, rather than to June 30, 2014, was permissible
under the statute and well within the discretion of the

court. The plain language of § 46b-86 (a) does not

require the court to make a modification [retroactive]

to the date of service of the motion. Rather, § 46b-86

(a) provides in relevant part: ‘‘[T]he court may order

modification retroactive with respect to any period during which there is a pending motion for modification

of an alimony or support order from the date of service

of notice of such pending motion . . . .’’ (Emphasis

added.) In addition, this court previously has explained

that an orderthat modified child support on a temporary

basis was not considered a final order and was thus

still pending for purposes of retroactivity. See Esposito

v. Banning, 110 Conn. App. 479, 483–85, 955 A.2d 609,

cert. denied, 289 Conn. 946, 959 A.2d 1011 (2008).

We further conclude that the court acted within its

discretion when it ordered the modification of the

defendant’s child support obligation retroactive to

December 9, 2014. First, the defendant’s motion for

modification did not expressly request the court to

make any modification retroactive to the date of service; rather, the record indicates that the first time that

he asked for a retroactive modification was at the February 25, 2015 hearing,8 which was eight months after

the motion for modification was served. Next, during

the May 7, 2015 hearing on the defendant’s motion for

modification, the plaintiff testified that after the parties

entered the July 14, 2014 agreement, she had continued

to pay for many of the daughter’s day-to-day expenses,

which included her monthly allowance, food, clothing

and her cell phone bill, as well as expenses associated

with a family vacation and shelter expenses. The plaintiff’s expenses largely remained the same as the daughter still had her bedroom at the plaintiff’s house and

would come overfor weekly dinners. Third, in determining that December 9, 2014, was the proper date for

retroactivity, the court reasoned that that was the date

in which it found the primary physical custody of the

daughter to be no longer temporary.

In addition, the court did not have the information

necessary to make its child support orders retroactive

to June 30, 2014, because the parties did not submit

financial affidavits at or close to that date, nor did the

defendant file a child support guidelines worksheet as

required under § 46b-215b. See Malpeso v. Malpeso, 165

Conn. App. 151, 166, 138 A.3d 1069 (2016)(child support

guidelines ‘‘shall be considered in all determinations of

child support award amounts’’ [emphasis in original]).

The court also made a note of this in its memorandum

of decision, where it stated: ‘‘Though the defendant

seeks financial orders in the instant motion, he did not

submit a signed, sworn financial affidavit until ordered

to do so by the court on May 22, 2015. Prior to June 8,

2015, the most recent financial affidavits filed were

those filed on January 27, 2011, at the time of the judgment of dissolution.’’ (Footnote omitted.) Thus, the par-
ties did not provide the court with a sufficient factual

basis for it to evaluate their financial circumstances or

the changes in their needs at the time the motion for

modification was served on June 30, 2014.

To summarize, we emphasize that it is well within the

court’s discretion to make a modification retroactive to

‘‘any period during which there is a pending motion

for modification of an alimony or support order from

the date of service of notice of such pending motion

upon the opposing party . . . .’’ (Emphasis added;

internal quotation marks omitted.) Coury v. Coury,

supra, 161 Conn. App. 294; see also General Statutes

§ 46b-86 (a). As the motion for modification was pending from June 30, 2014 until July 31, 2015, the court had

the discretion to make the child support modification

retroactive to any time during those eleven months that

was reasonably supported by the record. In its orders,

the court modified the defendant’s child support obligation retroactive to December 9, 2014, rather than the

date that the motion was served on June 30, 2014,

because it found that December 9, 2014, was the date

when his primary physical custody of the daughter was

no longer temporary. Therefore, given the circumstances of this case, it was not an abuse of discretion

for the court to order the modification of the defendant’s child support obligation retroactive to December

9, 2014.

II

The defendant next claims that the trial court erred

in failing to award him child support for the time period

between June, 2014,9 and the end of the 2016 school

year. In particular, the defendant contends that in its

July 31, 2015 orders, the court made no provision pertaining to the daughter’s child support or the parties’

child support obligation for the daughter after July 31,

2015. We are not persuaded that the court erred.

We begin by setting forth the applicable legal principles relevant to this claim. Pursuant to General Statutes

§ 46b-84 (b), ‘‘[i]f there is an unmarried child of the

marriage who has attained the age of eighteen and is

a full-time high school student, the parents shall maintain the child according to their respective abilities if

the child is in need of maintenance until such child

completes the twelfth grade or attains the age of nineteen, whichever occurs first.’’

A review of the record demonstrates that according

to the parties’ separation agreement, the amount that

the defendant had agreed to pay the plaintiff as unallocated alimony and child support was reduced beginning

on July 31, 2015. On that same day, the court granted

the defendant’s motion for modification. In its memorandum of decision, the court, in considering the statutory criteria, explained: ‘‘The Connecticut child support

guidelines provide for a presumptive child support
award of $985 per week (up until July 1, 2015) for two

children in a split custody arrangement based upon

the parties’ combined net weekly income of $11,710 of

which the defendant’s income comprises 86 [percent].

The Connecticut child support guidelines provide for

a presumptive child support award of $1004 per week

(from July 1, 2015 forward) for two children in a split

custody arrangement based upon the parties’ combined

net weekly income of $11,710 of which the defendant’s

income comprises 86 [percent]. Because the parties’

combined net weekly income exceeds $4000, the court

articulate[d] the following grounds for deviation based

on the evidence submitted: the defendant[’s] earning

capacity, coordination of total family support—specifically, the division of assets and liabilities, provision

of alimony and tax planning considerations, and the

parties’ each having physical custody of one of their

children. See § 46b-215a-3 (b) (5) and § 46b-215a-3 (b)

(4) (C) of the Child Support and Arrearage Guidelines

Regulations. The court adopts the figure of $170 per

week offered by the defendant in his proposed orders

for the plaintiff’s child support obligation.’’

The courtthen entered the following orders:(1)‘‘[t]he

defendant is awarded retroactivity to December 9, 2014.

The amount of child support for which he is responsible

for December 9, 2014 to July 31, 2015 (34 weeks) is

$27,805;’’ (2) ‘‘[c]ommencing September 1, 2015, the

defendant shall pay to the plaintiff the required amount

of support pursuant to the January 27, 2011 separation

agreement, $51,806.40 (per calendar year) of which represents child support to the plaintiff for one minor

child;’’ (3) ‘‘[t]he plaintiff shall reimburse the defendant

$27,805 no later than September 1, 2015;’’ and (4) ‘‘[a]ll

other provisions of the parties’ agreement10 should

remain undisturbed at this time as they were intended

by the parties and negotiated and agreed upon with the

advice of legal counsel.’’11

The court did not expressly indicate in its orders

whetherthe plaintiff was obligated to provide the defendant child support for his care of the daughter after

July 31, 2015. Under our rules of practice, ‘‘[i]t is the

responsibility of the appellant to provide an adequate

record forreview.’’ Practice Book § 61-10; see also Practice Book § 66-5. Absent evidence to the contrary, we

assume that the trial court acted properly. Decastro v.

Odetah Camping Resort, Inc., 170 Conn. App. 581, 588

n.2, A.3d (2017) (‘‘we are entitled to assume,

unless it appears to the contrary, that the trial court

. . . acted properly’’); Keller v. Keller, 167 Conn. App.

138, 147, 142 A.3d 1197 (‘‘absent evidence to contrary,

we assume that court acted properly’’), cert. denied,

323 Conn. 922, 150 A.3d 1151 (2016). Accordingly, we

assume that the court found that the plaintiff had no

child support obligation to the defendant for his care

of the daughter after July 31, 2015. See id.
The record contains evidence to support that finding.

As discussed in the preceding paragraph, in addition

to finding the plaintiff’s presumptive child support obligation of $170, the court set forth the grounds for deviating from the presumptive child support amount based

on the evidence submitted at the May 7, 2015 hearing.

The grounds for deviation included, inter alia, ‘‘the

defendant father’s earning capacity, coordination of

total family support—specifically, the division of assets

and liabilities, provision of alimony and tax planning

considerations, and the parties’ each having physical

custody of one of their children.’’ The record also

reveals that the parties’ separation agreement provides

for a reduction in the percentages of the defendant’s

unallocated alimony and child support obligation, effective July 31, 2015. Finally, as noted earlier in this opinion, there was evidence before the court at the May 7,

2015 hearing of the plaintiff’s continued financial support of the daughter, notwithstanding the change in

primary physical custody. Based on the record that

we have before us, we cannot conclude that the court

abused its discretion by not entering an order that the

plaintiff pay child support to the defendant for his care

of the daughter after July 31, 2015, until the end of the

2016 school year.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that the defendant claims that the court improperly declined

to award him child support for the time period between June, 2014 and the

end of the 2016 school year. In part I of this opinion, however, we conclude

that the court did not abuse its discretion in modifying the defendant’s child

support obligation retroactive to December 9, 2014, rather than to June 30,

2014, or July 14, 2014. Accordingly, in part II of this opinion, we address only

whether the court erred in failing to award child support to the defendant for

the time period of July 31, 2015, until the end of the 2016 school year

pertaining to his care of the daughter.

2

In September, 2013, both parties consented to this informal modification

of the parenting plan, set forth in the separation agreement, where the

daughter would now reside full-time with the defendant. The court noted

that this arrangement was in the best interest of the daughter.

3 Although the remaining issues in the defendant’s motion for modification

were marked off after July 14, 2014, the relief requested therein pertaining

to child support remained undecided.

4 On appeal, neither party challenges the court’s decision to decline to

make a finding regarding what percentage of the January 27, 2011 unallocated

alimony and child support order should be calculated as child support.

5 We note that ‘‘§ 46b-86 requires that a party file a motion showing a

substantial change in circumstances in order to modify a final order of

support.’’ Kalinowski v. Kropelnicki, 92 Conn. App. 344, 350, 885 A.2d 194

(2005). In this case, it is undisputed that there was a substantial change in

circumstances, namely, the change in the primary physical custody of the

daughter from the plaintiff’s residence to the defendant’s residence.

6 Specifically, the defendant contends that § 46b-224 protects against situations in which a parent may retain child support overpayments as tax

free alimony.

7

In his appellate brief, the defendant asserts that Gabriel v. Gabriel, 159

Conn. App. 805, 821, 123 A.3d 453 (2015), rev’d in part on other grounds by

Gabriel v. Gabriel, 324 Conn. 324, A.3d (2016), provides that the

only manner by which § 46b-224 can be given effect is through the issuance

of a full credit for overpayments occurring during the relevant period. We

disagree. Gabriel did not allude to this point, but instead addressed whether

the court improperly (1) ‘‘reduced the defendant’s alimony award and the
child support award in the combined total of the plaintiff’s unilateral reduction’’ and (2) found, in reliance on § 46b-224, that ‘‘it was not contemptuous

for the plaintiff to have suspended some portion of the defendant’s alimony

award.’’ Gabriel v. Gabriel, supra, 159 Conn. App. 821. In the defendant’s

appellate brief, however, he does not appear to assert that the court erred

by modifying the unallocated support award, but rather that the court

improperly modified the unallocated support award retroactively only from

December 9, 2014. Accordingly, we find Gabriel to be inapposite to the

present case. We further note that the defendant did not cite to Gabriel v.

Gabriel, 324 Conn. 324, A.3d (2016), in his appellate brief.

8 The February 25, 2015 hearing was a continuance of the hearing on

the defendant’s motion for modification that was originally scheduled for

January 9, 2015.

9 See footnote 1 of this opinion.

10 We believe that the court is referring to the parties’ January 27, 2011

separation agreement, which provided that the defendant’s unallocated alimony and child support obligation was to be reduced on July 31, 2015.

11 The court entered three other orders that are not relevant to this appeal.