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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 erroneously 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 judgment of the trial court.

The record discloses the following relevant facts and

procedural history. The parties were married in September, 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 incorporated 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 provided 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, nonetheless, that there was a shared physical custody arrangement. 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 circumstances. 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 alimony 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 specific 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 forthe purpose of computing 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 Connecticut State Agencies is plenary.’’ Lusa v. Grunberg, 101

Conn. App. 739, 761, 923 A.2d 795 (2007). Section 46b215a-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 nonexhaustive list of twenty-two inclusions. In that list of inclusions 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 construction 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 construed 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-215a1 (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 analytical murkiness. The defendant’s motion for modification 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 memorandum 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 circumstances, but that the change did not equitably compel 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 reasoning in his statement of issues on appeal and for most

of his argument. The equitable considerations underlying 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 justifying an upward deviation from the guidelines, by finding 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 presented. . . . 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. . . . 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 erroneous.’’ (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 circumstances 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 support 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. . . . Second, if the court finds a substantial change in circumstances, 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 modification, the moving party must demonstrate that circumstances 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 circumstances 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 [support], 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 defendant, atleast 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 presumptive 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 support. We conclude that the court did not abuse its discretion.

As discussed previously, a party seeking a modification must show that the continuation of the prior order

would be unfair or inequitable. Budrawich v. Budrawich, 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 followed. 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 circumstances,’’ which include the best interests of the child

and ‘‘other equitable factors.’’ Regs., Conn. State Agencies §§ 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 circumstances may have changed in terms of primary residence, it would be unfair and inequitable to, in essence,

elevate one household and diminish the other household. 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 forthe receiving 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 forthe termination of alimony that are notrelevant

to this opinion.

3 Both parties were self-represented at the hearing on the motion for modification.

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 respective 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 concern, 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 arrangementin 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.