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*********************************************** 
MARCO BATTISTOTTI v. SUZANNE A.*

(AC 39643)

DiPentima, C. J., and Alvord and Dewey, Js.

Syllabus

The plaintiff father appealed to this court from the judgment of the trial

court awarding the defendant mother sole legal and primary physical

custody of the parties’ minor child. The plaintiff, who resided in New

York City and rented an apartment in the Greenwich solely for parenting

time with his son, had brought this child custody action seeking, inter

alia, joint legal custody and visitation on a schedule to be determined.

After a trial, the court awarded, inter alia, the plaintiff a minimum

of seventeen hours of parenting time biweekly and ordered that such

parenting time occur within the town of Greenwich. On appeal, the

plaintiff claimed, inter alia, that the trial court erred in failing to consider

how its orders impacted his expenses, particularly the rental of the

Greenwich apartment, and abused its discretion in requiring that the

plaintiff’s parenting time take place only within the town of Greenwich. Held:

1. The trial court abused its discretion in failing to analyze whether the

plaintiff’s visitation expenses warranted a deviation from the child support guidelines; that court did not address in its decision the plaintiff’s

request that his child support obligation reflect the undisputed expenses

related to the Greenwich apartment even though it had expressly found

that the plaintiff rented and renovated the apartment to be able to spend

time with his child, and the court, having made that finding, should have

analyzed whether the application of the guidelines would have been

inequitable or inappropriate and should have determined, pursuant to

the relevant state regulation [§ 46b-215a-5c], whether the criterion for

deviation on the basis of significant visitation expenses was met, especially given that both parties recognized that the Greenwich apartment

was maintained for the child and was referenced in their proposed

orders, and the plaintiff consistently identified the costs associated with

maintaining the Greenwich apartment as expenses related to the child,

which were not challenged by the defendant.

2. The plaintiff failed to demonstrate that the trial court abused its discretion

by restricting his parenting time with his child to the town of Greenwich;

the plaintiff’s reliance on the court’s finding that both parents demonstrated a respect for court orders and had the ability to be actively

involved in the life of the child was unavailing, as the court also made

findings expressing concern about the plaintiff’s lack of understanding

of his child’s needs and the factors hindering the plaintiff’s establishment

of a healthy relationship with his child, and the plaintiff did not address

those findings.

Argued February 8—officially released May 15, 2018

Procedural History

Action for custody of the parties’ minor child, brought

to the Superior Court in the judicial district of StamfordNorwalk; subsequently the matter was transferred to

the judicial district of New Haven and tried to the court,

Tindill, J.; judgment awarding sole legal and primary

physical custody to the defendant, and ordering, inter

alia, visitation to the plaintiff from which the plaintiff

appealed to this court. Reversed in part; further proceedings.

John R. Williams, for the appellant (plaintiff).

David M. Moore, for the appellee (defendant).
Opinion

ALVORD, J. In this protracted and bitterly contested

family matter, the plaintiff father, Marco Battistotti,

appeals from the judgment rendered by the court following a ten day trial on his custody action filed against

the defendant mother, Suzanne A. On appeal, the plaintiff claims that the court: (1) improperly found that his

earning capacity was $174,000 per year, (2) erred in

failing to consider how its orders impacted his

expenses, particularly the rental of an apartment in

Greenwich used solely for parenting time, and (3)

abused its discretion in requiring that the plaintiff’s

parenting time take place only within the town of Greenwich. We agree with the plaintiff’s second claim and

conclude that the trial court abused its discretion.

Accordingly, we reverse the judgment with respect to

the child support orders and remand the matter for

further proceedings on the issue of calculation of child

support.1 We affirm the judgment in all other respects.

The following facts and procedural history are necessary for the resolution of the plaintiff’s appeal. The

plaintiff and the defendant, who were never married,

became parents to a son in June, 2014. On June 13,

2014, the plaintiff, a resident of New York City, filed a

child custody action in the judicial district of Stamford2

seeking joint legal custody of the parties’ child. He

requested that the primary residence of the child be

with the defendant and sought visitation on a schedule

to be determined. He further sought a parenting responsibility plan for the parental decision-making regarding

the child. The court, Tindill, J., conducted a trial over

the course of ten days. Both parties testified, as did the

child’s guardian ad litem.

The court issued a written memorandum of decision

on September 7, 2016. The plaintiff filed a motion for

articulation, and the court issued an articulation on

October 6, 2016. On November 18, 2016, the court issued

a corrected memorandum of decision, in which it made

a number of findings with respect to the parties and

their respective abilities to meet the needs of the child.

The court found that the defendant had rebutted the

presumption of joint legal custody and awarded sole

legal custody, primary physical custody, and final decision-making authority to the defendant. The court

awarded the plaintiff a minimum of seventeen hours of

parenting time biweekly, and ordered that such parenting time occur within the town of Greenwich. The court

prohibited the plaintiff from removing the child from

Greenwich or the state of Connecticut. The court

ordered the defendant or her designee to transport the

child to and from the apartment the plaintiff had rented

in Greenwich solely for effectuating his parenting time.

The plaintiff was prohibited from driving the child anywhere without obtaining a valid driver’s license, and

was ordered to provide the defendant twenty-four hours
advance notice of any intention to transport the child

in any moving vehicle, with the notice to include confirmation that the vehicle is properly licensed, registered,

and insured. The court found that the plaintiff had a

minimum net annual earning capacity of $174,356. Referencing the Connecticut Child Support Guidelines, the

court ordered the plaintiff to pay $253 per week in child

support beginning September 12, 2016.3 This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we note the well settled

standard of review applicable in domestic relations

cases. ‘‘[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. . . .

[T]he 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.’’ (Citations omitted; internal

quotation marks omitted.) Dowling v. Szymczak, 309

Conn. 390, 399, 72 A.3d 1 (2013). With respect to child

support, however, ‘‘the parameters of the court’s discretion have been somewhat limited by the factors set

forth in the child support guidelines.’’ (Internal quotation marks omitted.) Colbert v. Carr, 140 Conn. App.

229, 240, 57 A.3d 878, cert. denied, 308 Conn. 926, 64

A.3d 333 (2013).

I

We first address the plaintiff’s claim that the court

erred in failing to consider how its orders impacted his

expenses, particularly the expense associated with the

rental of an apartment in Greenwich used solely for

effectuating parenting time with his son. He claims that

although the court found that he lived in New York

City, the court required that his parenting time take

place in the apartment he rented in Greenwich ‘‘for the

sole purpose of visiting his son’’ and prohibited him

from taking the child out of Greenwich, which order

effectively required him to ‘‘maintain two separate residences.’’ He argues that the order to pay $253 weekly

in child support coupled with the requirement of maintaining two residences ‘‘imposed an unsustainable

financial burden,’’ and he seeks to have the orders integrated.4 We agree that the court abused its discretion

in failing to analyze whether the plaintiff’s visitation

expenses warranted a deviation from the child support guidelines.

The following additional facts are necessary for our

resolution of this claim. In its memorandum of decision,

the court found that it was in the child’s best interest

to live with his mother and to spend ‘‘significant, quality

time with his father.’’ The court noted that the defendant

‘‘proposes certain restrictions regarding transportation
and location of the plaintiff’s parenting time that she

believes are essential to address the child’s safety.’’ The

court found that the plaintiff rented and renovated a

Greenwich apartment near the residence shared by the

defendant and child, to be able to spend time with the

child. With respect to child support, the court ordered

that, ‘‘[i]n accordance with the Connecticut Child Support Guidelines (Court Exhibit A, attached), the plaintiff

father is ordered to pay $253.00/week as child support

to the defendant mother beginning September 12, 2016.’’

Exhibit A consisted of the Child Support Guidelines,

prepared by ‘‘Connecticut Judicial Service Center’’ and

dated September 7, 2016, the date of the memorandum

of decision. Figures for gross weekly income, federal

income tax, social security tax, medicare tax, and state

and local income tax were listed for both parties. Net

weekly income was also included for both parties in

the amounts of $3,028 with respect to the defendant

and $3,353 with respect to the plaintiff. A presumptive

support amount of $253 was entered for the plaintiff.

Section VII of the worksheet, Deviation Criteria, was

not utilized.

‘‘[W]e 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

provided [in General Statutes § 46b-215a] 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

. . . .’’ (Internal quotation marks omitted.) Righi v.

Righi, 172 Conn. App. 427, 435, 160 A.3d 1094 (2017).

The guidelines provide a schedule for calculating ‘‘the

basic child support obligation,’’ which is based on the

number of children in the family and the combined

net weekly income of the parents. Regs., Conn. State

Agencies § 46b-215a-2c (e).

In support of the application of these guidelines, General Statutes § 46b-215b (a) provides in relevant part:

‘‘The child support and arrearage guidelines issued pursuant to [§] 46b-215a . . . shall be considered in all

determinations of child support award 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 guidelines would be inequitable or inappropriate in a particular case, as determined

under the deviation criteria established by the Commission for Child Support Guidelines under [§] 46b-215a,

shall be required in order to rebut the presumption in

such case.’’

Section 46b-215a-5c of the Regulations of Connecticut State Agencies, which describes the circumstances

that may justify a support order different from the pre-
sumptive support amounts calculated under the child

support guidelines, provides as a criterion for deviation

under subsection (b): ‘‘(3) Extraordinary parental

expenses . . . In some cases, a parent may incur

extraordinary expenses that are not considered allowable deductions from gross income, but which are necessary for the parent to maintain a satisfactory parental

relationship with the child, continue employment, or

provide for the parent’s own medical needs. Only the

following expenses, when found to be extraordinary

and to exist on a substantial and continuing basis, may

justify a deviation from presumptive support amounts

under this subdivision: (A) significant visitation

expenses . . . .’’

‘‘Our courts have interpreted this statutory and regulatory 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 deviation criteria the court is relying on to justify the deviation.’’ Righi v. Righi, supra, 172 Conn. App. 436–37.

There is negligible appellate case law explicating the

deviation criterion for significant visitation expenses.5

In the present case, both parties referenced the Greenwich apartment rental in their proposed orders. The

plaintiff requested that ‘‘[p]ast, current and future child

related expenses [in]curred by plaintiff such as traveling

from and to Greenwich for parenting time, rent and

utilities of the Greenwich apartment used solely for

parenting time with the minor child should be . . .

paid in accordance to the child support guidelines currently in effect, 80 [percent] defendant, 20 [percent]

plaintiff, unless modified. Plaintiff do[es] not reside at

the Greenwich apartment except during parenting time

with the minor child.’’ In the defendant’s amended proposed orders, she specifically requested that the plaintiff’s parenting time be ‘‘at his Greenwich apartment

and only within the Town of Greenwich, CT.’’ In its

memorandum of decision, the court expressly found

that ‘‘[t]he plaintiff rented and renovated an apartment

in proximity to the defendant’s and child’s residence

to be able to spend time with [the child].’’ The court

also prohibited the plaintiff from removing the child

from Greenwich, which proscribed the plaintiff from

spending his parenting time at his residence in New

York City.

Both parties also recognized that the Greenwich

apartment was maintained for the child. During the

March 4, 2015 status conference, the court asked the

plaintiff what time he would be ‘‘home’’ in Greenwich,

to which the plaintiff responded that he lived in New

York City. Although the defendant’s counsel interjected
that he lived in ‘‘both places,’’ the plaintiff clarified that

the apartment in Greenwich is ‘‘the baby’s apartment’’

and stated that he had ‘‘a bed on top of the kitchen.’’

The defendant’s counsel, in closing argument, also

referred to the Greenwich apartment as ‘‘Baby [L]’s

apartment.’’

Moreover, the plaintiff consistently identified the

costs associated with maintaining the Greenwich apartment as expenses related to the child, and such

expenses were not challenged by the defendant. In his

financial affidavit dated May 4, 2016, the plaintiff

reported the following monthly expenditures: Greenwich apartment rent ($1475), Greenwich electricity

($60), Greenwich cable/internet/phone ($117), and

Greenwich apartment up-keeping ($10).6 He further

reported monthly travel expenses to and from Greenwich in the amount of $702. He also listed these

expenses in an attachment to his amended proposed

orders dated May 10, 2016. During trial, the plaintiff

introduced into evidence a list of expenses related to

the Greenwich apartment from October, 2014 through

May, 2015, in the amount of $45,399.13. Rather than

dispute these expenses, the defendant’s counsel referenced the list in closing argument, remarking that the

plaintiff ‘‘spent $45,399 in less than six months on Baby

[L]’s apartment in Greenwich.’’

In its memorandum of decision, the court did not

address the plaintiff’s request that his child support

obligation reflect the undisputed expenses related to

the Greenwich apartment. The trial court did, however,

expressly find that the plaintiff had rented and renovated the apartment to be able to spend time with his

child. In order to make that finding, the trial court

necessarily had before it evidence that it deemed credible that the plaintiff had both rented and renovated that

apartment.7 Having made that finding, the court should

have then analyzed whether application of the guidelines would be inequitable or inappropriate and should

have determined, pursuant to § 46b-215a-5c of the Regulations of Connecticut State Agencies, whether the criterion for deviation on the basis of significant visitation

expenses was met. The court should have considered

whether the expenses are ‘‘necessary for the parent to

maintain a satisfactory parental relationship with the

child,’’ and whether such expenses ‘‘exist on a substantial and continuing basis.’’ On remand, in determining

whether the plaintiff has incurred significant visitation

expenses warranting a deviation from the presumptive

support amounts calculated under the child support

guidelines, the court may consider that the plaintiff

consistently represented that he resided in New York

City at the time of the child’s birth and that he continues

to reside in New York City, but is required to spend his

parenting time within the town of Greenwich. The court

may further consider that the defendant never challenged the amount of the Greenwich apartment
expenses or that such expenses were incurred by the

plaintiff for the sole purpose of effectuating parenting

time with their child.

Accordingly, we conclude that the court, having

found that the plaintiff ‘‘rented and renovated an apartment in proximity to the defendant’s and child’s residence to be able to spend time with’’ the child, abused

its discretion in failing to analyze whether his visitation

expenses warranted a deviation from the child support

guidelines. The proper remedy is to remand the matter

for the court to hold a new hearing on the issue of

calculation of child support.8

II

The plaintiff also claims that the court abused its

discretion in restricting the plaintiff’s parenting time

with his child to the town of Greenwich. He argues that

the court made no findings supporting this onerous

order, and that the restriction is inconsistent with the

court’s finding that it is in the best interest of the child

to ‘‘spend significant, quality time with his father.’’ We

disagree that the court abused its discretion.

‘‘The authority of a court to render custody, visitation

and relocation orders is set forth in General Statutes

§ 46b-56. In making or modifying any order with respect

to custody or visitation, the court shall . . . be guided

by the best interests of the child . . . . The best interests of the child include the child’s interests in sustained

growth, development, well-being, and continuity and

stability of its environment. . . . The trial court is

vested with broad discretion in determining what is in

the child’s best interests.’’ (Citations omitted; footnote

omitted; internal quotation marks omitted.) Gina M.G.

v. William C., 77 Conn. App. 582, 587–88, 823 A.2d

1274 (2003). The foundation for the abuse of discretion

standard in family matters is ‘‘that the trial court is in

a clearly advantageous position to assess the personal

factors significant to a domestic relations case, such

as demeanor and attitude of the parties at the hearing.’’

(Internal quotation marks omitted.) Szczerkowski v.

Karmelowicz, 60 Conn. App. 429, 432, 759 A.2d 1050

(2000).

The following additional facts are relevant to this

claim. In its corrected memorandum of decision, the

court began by noting that it had reviewed and considered the criteria contained in relevant statutes, including § 46b-56. The court concluded that it was in the

best interest of the child to live with the defendant and

‘‘spend significant, quality time’’ with the plaintiff. It

also, however, recognized a ‘‘high level of conflict and

mistrust between the parents,’’ and noted that the defendant ‘‘proposes certain restrictions regarding transportation and location of the plaintiff’s parenting time that

she believes are essential to address the child’s safety.’’

With respect to the parties’ capacity to meet the needs
of the child, the court concluded that the plaintiff ‘‘has

exhibited considerable lack of knowledge and understanding of the needs of his son as a newborn, infant,

and toddler. While his parenting skills improved with

supervision, the evidence reveals that his singular focus

on what he perceives to be the failings of the defendant

appears to diminish his capacity for recognizing and

prioritizing the developmental needs of his son.’’

The court further found that the plaintiff had made

efforts to establish a healthy relationship with his child,

but that his efforts were hindered in part by the plaintiff’s arrest for disorderly conduct, which prohibited

contact with the child for nearly four months. Although

the court found that both parents demonstrate a respect

for court orders, the court also found that the plaintiff

‘‘engages in manipulation and coercive behavior in an

effort to involve the child in the parents’ dispute.’’ The

court ordered a minimum of seventeen hours biweekly

parenting time for the plaintiff, and further ordered that

such parenting time shall occur in Greenwich.

The plaintiff argues that the court’s restriction of his

parenting time to the town of Greenwich was capricious

and points to the court’s findings that both parents

‘‘demonstrate a respect for court orders’’ and ‘‘have the

ability to be actively involved in the life of the child.’’9

The plaintiff does not challenge and, instead, ignores the

court’s findings expressing concern about the plaintiff’s

lack of understanding of his child’s needs and the factors hindering the plaintiff’s establishment of a healthy

relationship with his child, who was just twenty-three

months old at the time of trial. We conclude that the

plaintiff has failed to demonstrate that the court abused

its discretion in limiting the plaintiff’s parenting time

to the town of Greenwich.10

The judgment is reversed only as to the child support

related orders and the case is remanded for further

proceedings on those issues; the judgment is affirmed

in all other respects.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of family violence, we decline to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

1 Because we agree with the plaintiff’s second claim and reverse the

judgment and remand the case for further proceedings on the issue of

calculation of child support, we need not reach his first claim. See Kavanah

v. Kavanah, 142 Conn. App. 775, 782, 66 A.3d 922 (2013) (remanding to trial

court for new hearing on financial issues regarding child support where

court abused its discretion in ordering downward deviation from guidelines).

However, we note as a general matter that under the child support guidelines,

‘‘the child support obligation first is determined without reference to earning

capacity, and earning capacity becomes relevant only if a deviation from

the guidelines is sought’’ under § 46b-215a-5c (b) (1) (B) of the Regulations

of Connecticut State Agencies. Fox v. Fox, 152 Conn. App. 611, 635, 99 A.3d

1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014); see footnote 8 of

this opinion.

2 We note that the plaintiff properly commenced this action in the judicial

district of Stamford-Norwalk, where the defendant and child reside. General

Statutes § 51-345 (a) (3) (E) governs venue in civil actions and provides in

relevant part that if either the plaintiff or the defendant resides in the town
of Greenwich, the ‘‘action may be made returnable at the option of the

plaintiff to either the judicial district of Stamford-Norwalk or the judicial

district of Fairfield.’’ Although neither of the parties appear to have filed a

motion to transfer the action, the court transferred the action from Stamford

to the judicial district of New Haven on March 16, 2018.

General Statutes § 51-347b (a) provides in relevant part: ‘‘Any action . . .

may be transferred, by order of the court on its own motion or on the

granting of a motion of any of the parties, or by agreement of the parties,

from the superior court for one judicial district . . . to a superior court

location for any other judicial district, upon notice by the clerk to the parties

after the order of the court, or upon the filing by the parties of a stipulation

signed by them or their attorneys to that effect.’’

Practice Book § 12-1 further provides in relevant part: ‘‘Any cause . . .

may be transferred from a judicial district court location to any other judicial

district court location or to any geographical area court location, or from

a geographical area court location to any other geographical area court

location or to any judicial district court location, by order of a judicial

authority (1) upon its own motion or upon the granting of a motion of

any of the parties, or (2) upon written agreement of the parties filed with

the court.’’

3 The court made further orders with respect to the guardian ad litem,

coparenting counseling, notice of issues concerning the child, and health

insurance.

4 The plaintiff also briefly challenges the court’s orders that he pay approximately $45,000 of the outstanding guardian ad litem fees and half of any

coparenting counseling fees. He offers no support for this challenge other

than asserting generally that the totality of the court’s financial orders

‘‘imposed an unsustainable financial burden.’’ The plaintiff’s cursory argument does not provide a basis in law for this court to conclude that the

trial court abused its discretion in issuing these orders. See Juma v. Aomo,

143 Conn. App. 51, 61, 68 A.3d 148 (2013).

5 This court has explained that ‘‘[m]any non-custodial parents have some

transportation costs to see their child—for parents living within driving

distance of each other, for example, the non-custodial parent is likely to

pay for fuel and other costs picking up or dropping off the child, but these

ordinary expenses usually do not warrant a deviation from the presumptive

amount.’’ (Internal quotation marks omitted.) Kavanah v. Kavanah, supra,

142 Conn. App. 781–82 (trial court abused its discretion in ordering a deviation based on travel expenses defendant incurred in driving from Monroe

to Southington every other weekend of his parenting time with his child,

where court failed to identify why such travel costs were ‘‘extraordinary’’

so as to warrant deviation). The trial court, however, has had occasion to

consider similar facts involving a parent’s rental of an apartment for the

purpose of spending parenting time with his child, finding such expenses

to constitute ‘‘extraordinary visitation expenses’’ necessary to maintain a

healthy and satisfactory parental relationship with the child. See Doroski

v. Doroski, Superior Court, judicial district of New London, Docket No. FA04-0129861-S (Oct. 2, 2012) (after defendant moved to New York City, his

$700 per month expense to rent Niantic residence ‘‘which he would not

otherwise do but for the need to have a place to stay while visiting with

the minor child’’ and $250 per month additional gas expense justified child

support award that deviated from guidelines); see also Milbert v. Milbert,

Superior Court, judicial district of Hartford, Docket No. HHD-FA-155039631-

S (July 17, 2017) (finding deviation justified on the basis of the father’s

increased visitation expenses, including flights, hotels, meals, and renting

a car, after the child’s mother moved with the child to Oregon); Bushey v.

Bushey, Superior Court, judicial district of Stamford-Norwalk, Docket No.

FA-96-0152020-S (Mar. 12, 2002) (finding payment of presumptive support

obligation by the plaintiff would be inequitable and that deviation from

guidelines is appropriate because of significant visitation expenses and

maintaining living accommodations for children when they visit plaintiff).

6 The plaintiff previously had identified Greenwich apartment expenses

in his May 1, 2015 financial affidavit.

7 Although the trial court broadly rejected ‘‘the information on the plaintiffappellant’s sworn financial affidavits regarding his income from employment

and expenses’’ as not truthful, we read this language contained in the court’s

articulation as necessarily rejecting only certain of the plaintiff’s expenses.

A reading of the articulation as rejecting the plaintiff’s reported monthly

child expenses, which included the expenses associated with the renting of

the Greenwich apartment, would be inconsistent with the court’s express
finding that the plaintiff had rented and renovated the apartment.

8 Although we need not address the plaintiff’s claim that the court erred

in finding that he had an earning capacity of $174,356; see footnote 1 of

this opinion; we reiterate the procedure that a court must follow before

ordering child support on the basis of the deviation criteria of a party’s

earning capacity.

‘‘Under the guidelines, the child support obligation first is determined

without reference to earning capacity, and earning capacity becomes relevant only if a deviation from the guidelines is sought’’ under § 46b-215a5c (b) (1) (B) of the Regulations of Connecticut State Agencies. (Internal

quotation marks omitted.) Fox v. Fox, 152 Conn. App. 611, 635, 99 A.3d

1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014); see also Unkelbach

v. McNary, 244 Conn. 350, 371, 710 A.2d 717 (1998); Berger v. Finkel, 161

Conn. App. 416, 427, 128 A.3d 508 (2015) (‘‘[a] party’s earning capacity is a

deviation criterion under the guidelines’’ [internal quotation marks omitted]).

‘‘[T]he amount of support determined without reference to the deviation

criteria is presumed to be the correct amount of support, and that presumption may only be rebutted by a specific finding on the record that the

application of the guidelines would be inequitable or inappropriate under

the circumstances of a particular case.’’ (Internal quotation marks omitted.)

Fox v. Fox, supra, 635.

This court previously has found significant that there is no express or

implied reference to earning capacity in § 46b-215a-2c of the Regulations

of Connecticut State Agencies, which provides that the regulation ‘‘shall be

used to determine the current support . . . components of all child support

awards within the state, subject to [§ 46b-215a-5c] of the Regulations of

Connecticut State Agencies.’’ (Internal quotation marks omitted.) Id. Where

the regulation refers to any type of earned income, it does so in the context

of ‘‘gross income’’ and ‘‘net income.’’ Id., 635–636. ‘‘Gross income’’ is defined

in relevant part as ‘‘the average weekly earned and unearned income from

all sources before deductions’’ and ‘‘net income’’ as ‘‘gross income minus

allowable deductions.’’ Id., 636; see Regs., Conn. State Agencies § § 46b215a-1 (11) and (18). Earning capacity is not listed among the ‘‘gross income

inclusions.’’ Fox v. Fox, supra, 52 Conn. App. 636. Earning capacity is instead

found among the criteria for deviation from presumptive support amounts,

as a type of ‘‘financial [resource] that [is] not included in the definition of

net income, but could be used by such parent for the benefit of the child

or for meeting the needs of the parent.’’ Regs., Conn. State Agencies § 46b215a-5c (b) (1).

Given this regulatory framework, a court errs in calculating child support

on the basis of a parent’s earning capacity without first stating the presumptive support amount at which it arrived by applying the guidelines and using

the parent’s actual income and second finding application of the guidelines

to be inequitable or inappropriate. See Deshpande v. Deshpande, 142 Conn.

App. 471, 478–79, 65 A.3d 12 (2013) (‘‘[b]ecause the court failed to specify

the presumptive amount or make any findings regarding a deviation from

that amount, we can only speculate as to the amount, whether the court’s

child support order deviated from that amount and, to the extent that there

was a deviation, whether the circumstances of this case justified a variance

from the presumptive amount based on the court’s application of the deviation criteria’’); see also Righi v. Righi, supra, 172 Conn. App. 439 (‘‘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’’); Barcelo v. Barcelo, 158 Conn.

App. 201, 215, 118 A.3d 657 (court’s award was improper in part because

it failed to cite the presumptive support amount calculated with the defendant’s actual net income, and then did not invoke the defendant’s earning

capacity as a deviation criterion in calculating his child support obligation),

cert. denied, 319 Conn. 910, 123 A.3d 882 (2015).

This court previously has stated that ‘‘the reason why a trial court must

make an on-the-record finding of the presumptive support amount before

applying the deviation criteria is to facilitate appellate review in those cases

in which the trial court finds that a deviation is justified. . . . In other

words, the finding will enable an appellate court to compare the ultimate

order with the guideline amount and make a more informed decision on a

claim that the amount of the deviation, rather than the fact of a deviation,

constituted an abuse of discretion.’’ (Citation omitted; internal quotation

marks omitted.) Kiniry v. Kiniry, 299 Conn. 308, 320, 9 A.3d 708 (2010).

9 The plaintiff’s related argument that the geographic limitation ‘‘imposes

a very substantial financial burden upon the plaintiff which interferes with
the court’s stated desires concerning support and payments to the guardian

ad litem,’’ has been addressed in part I of this opinion.

10 The defendant argues in her brief that the plaintiff’s appeal is frivolous

and claims that the plaintiff cited facts not found by the trial court. She

requests sanctions in the form of attorney’s fees under Practice Book § 85-

2. We decline to address this issue because the defendant failed to make

her request in a separate motion. See Tyler v. Tyler, 163 Conn. App. 594,

598 n.3, 133 A.3d 934 (2016) (declining to review request for sanctions when

not raised in motion for sanctions); Hernandez v. Dawson, 109 Conn. App.

639, 644, 953 A.2d 664 (2008) (same); Practice Book § 85-3.