Lauren Dowling v. Luke Szymczak (2011)

MEMORANDUM OF DECISION ON APPEAL FROM FAMILY SUPPORT MAGISTRATE, and MOTION FOR ATTORNEY FEES

Before the court at this time is defendant's appeal (# 175), filed November 18, 2010, from a November 5, 2010, decision of the Family Support Magistrate (Adams, FSM).  This appeal focuses upon an issue rarely before addressed by any superior court decision and apparently unique in the context of a judicial review of a family support magistrate's decision, to wit, how a court ought to set a child support order, in light of Maturo v. Maturo, 296 Conn. 80 (2010), when the combined net parental income exceeds the highest step on the Connecticut Child Support Guidelines Schedule of Basic Child Support Obligations, Regs., Conn. State Agencies § 46b–215–2b(f).  Also before the court is appellee's motion for an award of attorneys fees incurred in the defense of this appeal (# 178).

I. AUTHORITY OF THIS COURT TO ACT UPON APPEAL

CONN. GEN. STAT. § 46b–231(n)(1) provides that a person who is aggrieved by a final decision of a family support magistrate (FSM) may obtain judicial review by way of appeal.   Any such appeal must be filed not later than fourteen days following the decision appealed from.   There is no question here that defendant's appeal has been timely filed, nor that defendant has standing to bring this appeal.

Subsection (5) permits a party to apply for leave to introduce additional evidence, and defendant so requested.   This court heard oral argument from the parties on both this request and the underlying appeal on April 14, 2011.   Because the request proposes only to add further evidence on two subjects already intensively litigated, and that evidence was available to defendant at the hearing before the magistrate, as well, this request was denied.   Accordingly, as directed by the statutes' subsection (6), the court decides this appeal on the strengths of their written briefs, their arguments on April 14, and its review of the transcript of and the exhibits admitted at the trial below.

Subsection (7) of the statute provides that the court may reverse or modify the decision of the magistrate if substantial rights of the appellant have been prejudiced because the decision of the magistrate is:  (A) in violation of constitutional or statutory provisions;  (B) in excess of the statutory authority of the family support magistrate;  (C) made upon unlawful procedure;  (D) affected by other error of law;  (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;  or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

II. PROCEEDINGS ON THE MAGISTRATE'S DOCKET

In a case captioned Szymczak v. Dowling, Docket Number KNO FA 09–4112518, Superior Court, New London Judicial District, this court adjudicated custody of the parties' minor child (born September 26, 2007), with final judgment entering on March 31, 2011.   In that action, both pendente lite and final orders recognized the primary residence of the child to be with his mother, Ms. Dowling.

On February 10, 2009 (which preceded the filing of the custody action), the Commissioner of Social Services had on her behalf filed the instant case seeking support of that child.   The first support order entered on March 6, 2009, when the FSM (Oliveira) found that a tentatively appropriate support order was $435 weekly.   That order was based upon initial financial affidavits which were disputed, as was the earning capacity of the mother.   Also disputed was the issue of retroactivity of the support order to an earlier date.   The March 6 order expressly contemplated modification at a subsequent hearing to be scheduled after further discovery of the parties' tax returns, bonus income information, and historical earnings records, and indicated that arguments as to retroactivity would also be resolved at that time.   An extensive and contentious discovery process thereupon ensued, delaying the commencement of the hearing until January 14, 2010, before Magistrate Adams.   Presentation of the evidence consumed five full days, and the trial concluded on May 20, 2010.   Post-trial briefing followed, and on November 5, he issued the decision from which this appeal is taken.

III. THE CLAIMS ON APPEAL

At paragraph 5 of the appeal, appellant cites more than a score of errors in the decision, via many separately numbered subparagraphs and sub-subparagraphs.   These to some extent overlap, and require the application of different standards upon review.   They fall into the categories of challenges to the factual findings made by the magistrate (subparagraphs 5h, 5k(i), k(ii), k(v), k(vi), k(vii), m, and n);  claims that the magistrate incorrectly determined the proper award of child support in a high income case (subparagraphs 5a, b, c, d, g, i, j, k(iii), k(iv) and l);  claims that he improperly allocated the costs of daycare and unreimbursed medical expenses (subparagraphs 5e and h);  claims of error in determination of the correct effective date of the orders (5f and h);  and, finally, a claim that he erred in allowing mother to claim the child as a dependent for tax purposes (5o).

A. Challenges to the Findings of Fact

Appellant contends that the magistrate erred in finding the amount of his annual income, in finding the amount of the income which mother can be expected to produce, in calculating the value of certain “perks” he attributes to her, and in miscellaneous other details.   Because the facts found by the magistrate are fundamental to determining the soundness of his ultimate orders, these contentions will be examined in detail.   First, however, it is appropriate to note that the standard to be applied to this analysis will be whether or not the magistrate's findings as to factual matters were reasonably supported by the evidence adduced at the hearing;  Perry v. Perry, 222 Conn. 799 (1992).   As one superior court has articulated this standard, “․ [i]t is the duty of the family support magistrate, as the trier of fact, to consider all of the testimony and exhibits presented at hearing, and to determine what evidence he believed, and what evidence he did not believe.   This court cannot substitute its judgment for that of the family support magistrate concerning the credibility of the evidentiary offers made at the ․ hearing”;  Stone v. Stone, FA010075720S, Judicial District of Tolland (2005;  Dyer, J.).   This court will not, therefore, retry such factual issues.

I. Appellant's Income

The appellant claims multiple errors in the findings of his annual income.   He claims the FSM did not account for historically lower income he received in 2008 and 2009, in contrast to 2010, and erred by “double counting” voluntary contributions made to deferred compensation plans, and the income earned upon them in subsequent years.   He insists that the only proper characterization of his income is “wildly fluctuating” and “indeterminate,” two terms employed by the plurality opinion in Maturo to describe the situation of the obligor involved in that case.

It is elementary that in all family matters involving support, the rules of court require accurate disclosure by involved individuals of their personal financial circumstances in order to assure that equitable orders can be entered;  see, Practice Book § 25–30 (applicable to this matter at the time of trial), and Practice Book § 25a–15(a) (to similar effect, but which codified the rules for proceedings in the Family Support Magistrates' sessions and took effect on August 1, 2010).   Such disclosure, made under oath upon judicially-prescribed form JD–FM–6, the “Financial Affidavit,” requires both accuracy and thoroughness on the part of all litigants.   The fact finder is not bound by the numbers proffered by any person, and obviously is free to assess their credibility and to make findings which differ from a party's position.

In this case, appellant has been employed for ten years by JP Morgan Chase as a stock analyst, and his compensation consists of a combination of salary and cash bonuses, and longevity incentives including company stock options and deferred equity payments.   Each of these components varies annually in amount, and each is payable on a different schedule.   Outside of his employment, appellant also derives dividends and interest from investments.   He has not argued that any of these forms of income may not be considered to be part of “gross income” as defined for child support purposes.   The FSM concluded that for 2010, the grand total from all of appellant's income sources would be $1,117,376, or $21,488 weekly, gross.   In order to fashion an order compliant with the rule of Morris v. Morris, 262 Conn. 299 (2003), that net income is the proper measure of a support obligation, he further calculated that the net amounts after payment of federal and other taxes would be about 43% less, or, annually and weekly, $634,140 and $12,195.

To reach that conclusion, he relied substantially upon the appellant's own financial affidavit of March 11, 2010.   That affidavit revealed income in seven separate categories, expressed in weekly amounts of $4,556 (base salary) $10,750 (annual cash bonus, received in January 2010) $43 (company dividend payment), $2,790 (income from restricted stock), $2,576 (deferred equity), $374 (rent), and $399 (investment income and dividends).   These total $21,488.   Apparently, though, appellant believes that the substantial mistake lies in the FSM's finding as to net income, which his financial affidavit states as $10,509, rather than gross.   Appellant also uses this number in his post-trial brief:  “Father's weekly total net income, inclusive of his base salary and all sources of indeterminate compensation is $10,509”;  Post-trial Brief of Appellant, p. 3. This figure is 49% less than the gross.

In the course of the trial, the FSM examined over one hundred exhibits, and heard testimony over five days which required 1245 pages to transcribe.   Appellant's testimony is marked by fluid movement between gross and net figures, from one form of payment to another, and even from one calendar year to another.   At times, he appeared confused about the particulars of his own income structure.   Conspicuously absent from his offerings were any of his tax returns for 2007, 2008, or 2009, since for whatever reason he had not filed those returns by the trial dates in 2010 despite a clear legal obligation to do so, at least as to the first two of those years.   He did not include even pro forma tax returns among his exhibits, although they might have shed some light on his actual tax liabilities, presumably more precisely than do his financial affidavit's representations.   Now he urges that this court reverse the magistrate for utilizing 43% as the proper tax burden, instead of a number that he failed to justify throughout all of this time in court.   In arriving at the net figures, the magistrate applied the maximum rates for state and federal taxes to appellant's gross income figure.   This court cannot say that his calculations of the appellant's gross income, actual taxes, and consequent net income were clearly erroneous.

Secondly, appellant claims that the magistrate erred in utilizing the January 2010, bonus as the basis for a support order, contending that he thereby ignored an historical record of bonuses at lower levels.   At $10,750 per week, the amount stated on appellant's own financial affidavit, the annual bonus received just prior to the hearing equals $559,000.   From the various exhibits, it is evident that the bonuses paid in years 2008 and 2009 amounted to $640,000 and 472,500, or an average of $556,250.   This is within one half percent of the amount paid in 2010.   Indeed, the high (2008) and low (2009) amounts vary from the average by only a trifle more than 15 percent, and no inexorable downward trend is discernible.   This claim, therefore, is not supported by the undisputed historical data.

The third claim relative to appellant's income involves a question of both law and fact.   This claim is that the FSM erred by averaging the bonus over a 52–week period, instead of ordering a specific dollar amount based upon salary and then conducting a subsequent hearing to consider the impact of the annual bonus.   He cites, as requiring this procedure, § 46b–215a–2b(c)(1)(B) of the Child Support Guidelines (2005 Edition), which reads:

(B) Indeterminate Amounts

The primary requirement of a specific dollar amount of current support shall not preclude the entry of a supplemental order, in appropriate cases, to pay a percentage of a future lump sum payment, such as a bonus ․

As a matter of law, the regulation does not require the FSM to segregate bonus income from salary.   By its terms, the regulation relates to “future lump sum payments,” whereas in this case the facts reveal a present payment already made, practically simultaneous with the commencement of the hearing.   The bonus for 2009, received in 2010, was not a “future” payment but money already in appellant's bank account,¹ and the magistrate's factual determination to that effect is unassailable.   The proposition that legally he may only defer to some future date the calculation of what impact this bonus should have upon support for 2010 is nonsensical.   Amortizing the bonus's effect over 52 weekly payments confers upon appellant the benefit of using at least a portion of the principal throughout the course of the year.   Should the bonus for 2010, payable in January of 2011, be reduced sufficiently in magnitude to meet statutory thresholds, he is free to move to modify the 2010 order prospectively.   Upon the entry of the magistrate's order, however, it was neither error nor an abuse of his discretion to treat the cited regulation as one method, but not the exclusive method, of reckoning appellant's total income for the task at hand.

2. Appellee's Income and “Perks”

The second front in his attack is upon the findings as to appellee's income.   She is a highly educated professional who lacks a work record commensurate with that education.   In addition, her evidently wealthy parents, who have control of her place of employment, have also contributed to her support in many non-monetary ways.   These include the conferring upon her of an ownership interest in a certain family asset.   The two flaws cited in the FSM's memorandum are that he failed to value and include the array of gifts and “perks” she has received from her family, and that he failed to attribute income to her resulting from the equity position she holds.

On the first point, appellant examined her at length.   The gist of her testimony is that while earning a less-than-capacity wage and working for her family's business, she was allowed to live in a portion of the family's home and had a car and other benefits;  looking forward, however, it is her plan to move up in her profession and out of the family compound.   This would then cause her to incur housing and transportation expenses she had thus far been able to minimize.

As to the argument that she ought to have been receiving income based upon her ownership interest, the primary evidence was presented by her father, whom appellant called as a witness.   The complicated family empire includes various corporations and limited liability companies doing business in at least two auto dealerships, running an internet auto sales division, and performing other tasks related to auto sales.   While appellee worked for one of the dealerships, and was paid a salary reflected on a W–2 form, she also was named a minority member of the limited liability company which operates the other dealership.   Her brother is both a full-time employee and the manager of that company.   The father testified that the profits of the business were paid to the brother, and that neither the father (who is the majority member) nor the appellee had received income from that dealership.   The purpose of including her as a partial owner of the business was for “resume value,” that is, to allow her to someday seek a franchise in her own name and list the interest in that dealership as a sign of her experience and entrepreneurial attributes.²

In brief, the FSM found that she has an annual earning capacity of $150,000 if she applies herself in a job for which she is qualified, a capacity three times the amount she has earned historically as an employee in one of the family businesses and which she claimed was a useful figure for the future.   Before and after taxes, this amounts to $2,885 and $1,959 weekly.   The FSM credited her testimony as to the foreseeability of an end to living at home, noting that with the higher earnings he was ascribing to her she would no longer be as dependent upon her family.   Further, he credited the father's testimony as to the true nature of her business interest.   The contest here all boils down to credibility.  “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses ... It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action”;  Zahringer v. Zahringer, 124 Conn.App. 672, 684 (2010);(citation omitted;  emphasis in original).   The fact that appellant remains skeptical of the evidence upon which the findings are based is not a basis for overturning them.   The findings the FSM made are neither implausible nor illogical and are supported by evidence in the record, and they ought to stand.

3. Quality of Appellant's Health Care Coverage

The petition alleges that the FSM erred by finding that appellant has “excellent” health care coverage.   He has not briefed this claim, and the court considers it abandoned.

4. Location of Dowling Ford

The FSM found that Dowling Ford, one of the family's businesses, operates in Greenwich, CT. Appellant resides in Greenwich.   The record indicates that the correct locale of the Ford franchise is Cheshire, CT. The Magistrate erred by locating the business in Greenwich.   This may well be nothing more than a typographical error.   Given the complicated financial circumstances of both parties, the premise that this detail, if corrected, would produce a major difference in the result is not apparent.   The error is harmless.

B. Challenges to the Determination of Appropriate Support

In addition to challenging the magistrate's factual conclusions appellant also claims that he erred in setting a child support order of $1,440 weekly, based upon the combined net parental income of $14,154.³  He claims that the decision violates the rules articulated in the case of Maturo v. Maturo, 296 Conn. 80 (2010).   This court will respond to two questions inherent in this challenge:  whether the FSM applied the correct legal standard;  and, whether he reached the correct result in applying that standard.   These questions involve differing standards of review.

1. What is the legal standard by which to determine support in a high income case?

As Maturo indicates, the question of whether, and to what extent, child support guidelines apply is a question of law over which this court should exercise plenary review;  296 Conn. 80, 88.   In answer to that question, the Supreme Court held that the principles reflected in the Child Support and Arrearages Guidelines (2005) still apply even in those cases in which the combined net parental income exceeds $4,000, the point at which the schedule of support contained within the guidelines tops out.   The objective of a trial court's decision-making process must be to produce equitable, uniform, and consistent results, by exercise of a discretion that is not unfettered, but cognizant of the discerned needs of the child and consideration of all the criteria enumerated in Conn. Gen.Stat. § 46b–84(d).⁴  Unless deviation findings are made, that discretion is normally confined to a range between a presumed minimum ($473, if one child) and a presumed maximum (11.83% of the net income available to the parents), which are the dollar and percentage expressions of presumed support for families netting $4000 per week.   Although this case produced three separate opinions (three to reverse the trial court, one concurring in that result, and three dissenting), the plurality's conclusions are now the law on this subject;  Misthopoulos v. Misthopoulos, 297 Conn. 358, 365 (2010).

The FSM's memorandum reveals that he recognized and assiduously adhered to each of these principles, with the understanding, at the center of it all, that trial courts “remain free to exercise their discretion in determining the appropriate child support in light of the particular circumstances of each case”;  296 Conn. 80, 108.   The same standard was utilized in another high income case by Judge Wenzel, in Tisler v. Tisler, FST FA 08–4014782 S, Superior Court, Judicial District of Stamford/Norwalk at Stamford (April 7, 2011).   Citing Maturo, he wrote “․ courts remain free to fashion appropriate child support awards on a case by case basis ․ so long as the court remains above the “floor” of a basic child support obligation of $473, and below a “cap” of 11.83% of the combined net weekly income of the parents, the court is operating within and not departing from the Guidelines, albeit with some measure of discretion”;  (memorandum, page 4;  citations omitted).

Appellant proposes an alternative standard,⁵ one of perhaps three which this court has encountered.   He contends that $744 per week is the precisely correct child support number, a figure derived from a mathematical extension of the guidelines' schedules, in $1,000 increments, to higher net income families.   Thus at $8,000 per week, he maintains, support would be $611, and at $12,000, $691.   Such extrapolation is essentially an exercise in finding the next number in a sequence, a game mathematicians play with numerous variations.   All such games suffer from the infirmity that the next, unknown number, can only be predicted as likely, but not certain, since all variables can never be known;  the unreliability of the projections offered here is even higher, as the rate of decline in support percentages in the published schedule is neither constant nor unidirectional.   More significantly, the child support schedule embodies value judgments made upon consideration of actual data about the costs of raising children at varying income levels.   That data is entirely missing in the material appellant has offered.   The magistrate expressly rejected this method of computing support above $473, recognizing that it is purely hypothetical and implicitly imaginary in nature.   The Commission which promulgated the support guidelines did not assign a presumptive dollar amount to net income in the bracket above $4,000 per week;  it would be imprudent for any court to usurp the rulemaker's role by arbitrarily adopting a scale for that zone.⁶

The second and third “bright line” alternatives, quite simply, would be to choose as a setpoint either the dollar amount ($473) or the percentage amount (11.83%), to the exclusion of the other.   Doing the first would be a policy decision favoring obligors, as the burden of proof would fall upon the obligee to justify any higher award.   Conversely, anointing 11.83% as the preferable result would relieve an obligee of any burden of proof, and impose upon a child support payor the task of persuading a court to enter a lower award.   The “percentage option” apparently has little chance of being expressly sanctioned by our Supreme Court, after the recent admonition in Maturo that “ ․ the support payment for two children under the guidelines should presumptively not exceed 15.89 percent when the combined net weekly income of the family exceeds $4,000, and, in most cases, should reflect less than that amount.”  296 Conn. 80, 96 (emphasis added).

In contrast, the “$473 option” (literally, the “$636 option,” as the couple had two children) passed initial muster in the only other post-Maturo superior court decision I have found which wrestles with its directives, namely that of Judge Trial Referee Tierney in Fox v. Fox, FST FA 03 0197091S, Judicial District of Stamford–Norwalk at Stamford (March 29, 2011).   Even more than does the instant case, Fox involves a family with an extremely complicated income structure.   The decision begins with a lengthy explanation of the financial evidence and findings made thereon.   After reaching the point at which he was confident that total net income exceeded $28,000 per week, Judge Tierney then began determination of the proper support award by finding that:

the “presumptive support amount” is the number contained in the guideline schedule, the dollar number, not the percentage number.   See Worksheet line 20 “Presumptive current support amounts.”   Thus for Combined Net Weekly Income of $4,000 or more the “presumptive support amount” for two children is $636.   The $636 is the presumptive support amount for this case.   The 15.89% percentage in the guideline schedule for the Combined Net Weekly Income of $4,000 for two children is not the “presumptive support amount ” despite the Wife's argument to the contrary.

Memorandum, page 11;  emphasis added.

But with father's income constituting more than $23,000 of the total net, assigning to him responsibility to pay only a fraction of $636 would be “․ wholly inequitable, inadequate and inappropriate ․” (id., page 21).   The court therefore scrutinized carefully the identified needs of the children, and imposed an order of $3,214 weekly which, at 11.24% of the total net income, is soundly within Maturo 's range of permissible outcomes.   It did this by invoking deviation criteria, specifically “(1) Special circumstances:  ‘Best interests of the child,’ section 46b–215a–3(6)(C),(2) Special Circumstances:  ‘Other equitable factors;’ section 46b–215a–3(b)(6)(D) and (3) ‘Extraordinary expenses for care and maintenance of the child,’ section 46b–215a–3(b)(2) including (B) and (C)” (id., page 21).

This court takes no issue with this result, but believes that resort to deviation criteria on the facts of Fox is unnecessary.   In child support guideline parlance, “deviation” is a term of art applicable to cases involving special circumstances not shared by families of essentially equal incomes.   No less an authority than Maturo holds that “deviation criteria are narrowly defined”;  296 Conn. 80, 100;  and that case does not even suggest, let alone require, that deviation analysis is the only route to an order that exceeds the presumed minimum of the schedule's top step.   High income cases are not per se “special circumstances” cases, and ought not to become categorically “deviation” cases.   In Fox, where the two children were both teenagers, there was evidence of a number of high-ticket expenses including cars and private school tuition which could be counted towards their needs.   The burden of adducing and proving those expenses rested upon their mother.   This process, as applied to a three-year old, would place in her way a hurdle almost impossible to surmount.   With the discrete expenses for a child of this age consisting of clothing, diapers, toys, etc., etc., even an aggressive accountant would be hard pressed to build up a list approaching $473 per week of expenses.

That approach enshrines the “Cost Model” of child support orders which prevails in some states, but not in Connecticut.   The cost model seeks to determine the actual costs of raising a child, and then to apportion that cost between the parents.   One of its major shortfalls is its tendency to produce orders which cluster around a number representing the minimum, subsistence needs of the child.⁷

A majority of jurisdictions, including Connecticut, have instead adopted guidelines based on the “Income Shares Model” which “presumes that the child should receive the same proportion of parental income as he or she would have received if the parents lived together,” 296 Conn. 80, 93 (quoting guidelines;  emphasis added).   It has long been recognized that “the guidelines are income driven, rather than expense driven.   At each income level, the guidelines allocate a certain percentage of parental income to child support.   The percentage allocations contained in the guidelines aim to reflect the average proportions of income spent on children in households of various income and family sizes”;  Unkelbach v. McNary, 244 Conn. 350, 357–58 (1998).   The focus in this model is upon the parents' expenditures in maintaining a household in which their child is a participant, as opposed to merely the marginal costs incurred on account of his or her birth.   Higher incomes generally connote higher standards of living, and the aim of this model is to as nearly as possible enable the child to enjoy a standard of living not diminished by the choice of her parents to live separately;  Child Support and Arrearage Guidelines, preamble § (d), “Basic principles.”   In applying this model, a certain fiction is involved, of course, since the parents no longer in fact reside together.   But in the instant case, to assume without proof that parents enjoying combined net incomes exceeding $700,000 per year would not spend more on their offspring than those having a net income of $200,000, would involve an equal or greater fiction.   Anchoring high income families at the “$473” pole would lead to mischievous results inconsistent with the reasonable, income-based expectations of parental spending behavior that inform our guidelines.

This court has also considered the single Appellate Court decision issued following Maturo, and that is Tuckman v. Tuckman, 127 Conn.App. 417 (2011).   The Tuckman court reversed a child support order of $500 weekly for two children whose parents both had assets and income in the seven-figure range.   The specific reasons for the reversal were that the trial court had made no findings as to the obligee's net income, and no articulation of the role the guidelines played in setting the child support order.   While the decision quotes heavily from Maturo, and while an order of $500 weekly support in a context of seven-figure income certainly appears “ ․ wholly inequitable, inadequate and inappropriate ․,” the result is akin to those entered in other cases in which no “high income” factor was present;  see, Kiniry v. Kiniry, 299 Conn. 308 (2010) (it is an abuse of discretion for the trial court to fail to calculate the presumptive support amount before entering a support order);  Aley v. Aley, 101 Conn.App. 220 (2007) (child support orders require proper evidentiary foundation).  “High income” is a coincidence in Tuckman, and the decision doesn't say whether the $500 weekly order violates the principles of Maturo in either direction.   It thus provides little support for the claims of either party with respect to the orders entered by the FSM in this case.

In light of the foregoing, and with due respect for the erudition displayed in the Fox decision, I disagree with its conclusion that the presumptive support where total net income exceeds $4,000 per week is the dollar amount shown on the top step.   Instead, it is my opinion that the presumptive amount of guideline support is a number on a spectrum ranging from a presumed minimum of $473 to a presumed maximum of $1,674 (11.83% times $14,154), and that the trial court possesses the discretion to locate that exact number by a case-by-case examination of the facts listed in Conn. Gen.Stat. § 46b–84(d).  The FSM's choice of this process was legally correct.

2. Did the FSM properly apply that standard to the facts of this case?

Appellant also argues that the FSM abused his discretion in setting the award.   While the very existence of the guidelines makes exercise of discretion a rare event in the setting of child support orders, this court sees no reason why the rule which otherwise applies to appellate review of discretionary rulings in family cases ought not to apply in this matter too.   Briefly, as summarized in McRae v. McRae, 129 Conn.App. 171 (May 31, 2011),

An appellant who seeks to reverse the trial court's exercise of judicial discretion assumes a heavy burden ․ Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case ․ Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant ․ Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.

Meaningful analysis of whether the FSM's conclusions amount to a valid discretionary ruling and comport with Maturo must begin by noting how many significant distinctions exist between the trial court order which that court reversed, and the orders in this case.

First, Mr. Maturo's income stream was quite dissimilar to that of appellant.   Maturo had received annual bonuses varying between a low of $489,449.50 to a high of $3.8 million—a spread of almost eight hundred percent, which led the plurality opinion to describe his compensation as “wildly fluctuating” and “indeterminate.”   Here, the three years of appellant's bonuses utilized to fix the present orders varied about fifteen percent from the average, barely enough to satisfy the statutory minimum required to achieve a likelihood of success on any modification motion.⁸  His bonuses, fairly characterized, are at most “mildly” fluctuating, and quite determinate at least for the years examined at trial.   Maturo's bonus income range was forty times that of appellant;  one can argue that this is merely a difference of degree, but a degree of that magnitude rises to a difference of kind.

Secondly, the Maturo trial court had chosen a percentage (20%) which exceeded the guidelines schedule's top percentage of 15.89 (for two children).   Moreover, this percentage was not capped at any level, thus applying to all future income, no matter how high the bonus.   By being expressed as a percentage, instead of a dollar amount, it wandered away from rational connection to the ascertainable needs of the children involved.   Additionally, that trial court had failed to provide explanation, based upon the needs of the children, for such a high award.   Here, in contrast, the FSM confined himself to the 11.83% ceiling for a single child, fashioned an order expressed as a definite dollar amount so as to address the Supreme Court's admonitions about the shortcomings of an open-ended order, and made extensive findings as to the child's reasonable present and expected needs.

Thirdly, the Maturo trial court ordered the father to bear additional, substantial expenses over and above the child support, including one hundred percent of his children's private school costs, one hundred percent of extracurricular expenses such as summer camp and sports, and one hundred percent of medical and dental insurance and expenses.   Here, with the exception of the unreimbursed medical expenses the FSM assigned to appellant (which at present appear to be de minimis ), he placed the entire burden of all the other expenses upon the appellee.

Fourth, the Maturo orders entered in a context of custody and visitation orders by virtue of which the children were spending about 40% of their time with their father.   This approaches a “shared physical custody” arrangement, even if it was not designated as such.   While even a de jure shared custody situation does not automatically result in a departure from guideline support levels, such an order is a deviation criterion under Conn. State Regs. § 46b–215a–3(b)(6), and so one would normally expect that such an order would conduce to a lower support order rather than to a higher one.   The FSM here, in contrast, apparently had before him no court orders as to custody at the time of his decision on November 5. This court has examined the custody file, described above, and takes note that the first court order concerning the child is dated December 20, 2010, and concerns holiday access only.   Shortly thereafter, on March 31, 2011, this court entered a final judgment based upon the parties' agreement, which provides that they have joint custody, primary residence with mother and visitation with father amounting to roughly ninety days per year, or 25% of the time.   Whatever expectations might arise as to the impact upon support from the time father spent as a caretaker in Maturo would not similarly be indicated here, as the custodial arrangement is quite distinct.

Lastly, Maturo involved a married couple, and the trial court had entered a number of substantial financial orders aside from child support.   In this case of unwed parents, none of those orders would have been allowable.   This is not to say that the FSM could therefore increase the support as a substitute for alimony, as appellant may feel has occurred.   Rather, it is clear that the plurality's rejection of the Maturo orders was influenced by the very large property and alimony awards also made to the obligee there, sums sufficient to allow her additional opportunity to contribute to the support of her children but which were ordered without, in their eyes, imposing a corresponding duty of support upon her.   As Justice McLachlan noted at footnote 4 of his concurring opinion, “[t]he plaintiff was awarded $8.1 million in cash and investment accounts, including an investment account that generated approximately $95,680 of interest per year ․ This is in addition to the trial court's generous award of alimony”;  296 Conn. 80, 138.   It is sufficient, here, to say that the FSM's orders are not tainted by the perception that only one able parent was being forced to pay for his children's support, while the other was being absolved of a proportionate burden.

Obviously, this tally of details which distinguish the instant orders from those found deficient in another action does not, without more, make these orders valid.   To reach that conclusion requires that the record contain evidence supporting the FSM's findings, and a determination that, in light of the law, he properly exercised his judicial discretion in light of those findings.

The memorandum below devotes six pages to the findings made as to the criteria of General Statutes § 46b–84(d), as applied to both parents and child.   It emphasizes the high income and earning capacity of the parents, their educational achievements (both holders of Harvard M.B.A. degrees, inter alia ), and their current stations, living in Old Lyme and Greenwich, and one working in Manhattan.  “Station” is an elusive concept and an apt example by which to illustrate how complicated a process confronts a jurist exercising his or her discretionary authority.   Begin with its definition:  “[t]he most pertinent definition of ‘station’ in Webster, Third New International Dictionary, is ‘social standing.’   A person's social standing is strongly correlated to his standard of living, although other factors may be important as well;” Rubin v. Rubin, 204 Conn. 224, 236 (1987).   The term obviously has broad connotations, and would certainly implicate, for instance, housing costs, which are reasonably indicative of one's standard of living.   The evidence before the FSM on that subject, taken from the parties' financial affidavits, is that appellee is spending $1,800 monthly for rent, and appellant, $8,800.   As part of the magistrate's deliberations, he was free to question in which residence this child would have grown up, had his parents determined to remain together.   If he determined to focus strictly upon the mother's home, what portion of its cost is attributable to the child?   Arguably, zero, because a three-year old may fit into a corner and cause her to incur no incremental rental expense;  or, arguably, $900, if the rent is divided equally between the apartment's two occupants;  but, arguably, $1,800, as she might have decided to remain living with her own parents had the birth of the child not prompted her to move out.   A host of other ways of dividing the cost of rent between her and the child could credibly be proposed, before one even considers whether this child is entitled to housing comparable to that which matches his father's tastes.

The statute also requires that the magistrate consider the educational status of the child, both present and expected, and he did so.   Recognizing that the present educational costs of a child at age three are minimal if any, he crafted his order to apply as the child matures also.   From the educational pedigree of both parents, he drew permissible inferences that this child will likely receive a superior education also;  the cost of that will not only be substantial, but will require present planning by the custodial parent as he has not allocated those costs to appellant.   His observation is correct that unless some substantial change of circumstances should occur, it is unlikely that the mere passage of time could result in a future increase in support;  the present order is therefore the order one must expect to remain in place as the child attains ages “six and ten and fifteen” also.   Such a projection is today required of one setting a child support order.   This court notes that in the 1989 and 1991 editions, the guidelines contained separate schedules in which the age of the children was a specific variable—first, with disparate levels for 0–5, 6–15, and 16–17, with the second version flattened to two levels, 0–11 and 12–17.  “This concept is reflective of the economic fact that as children get older, a greater percentage of the family income is generally spent upon them”;  Child Support Guidelines, January 1, 1991, General Principles, § (c)(6).   In 1994's edition (and in all later editions), the guidelines eliminated age grouping and substituted equal presumed levels for children of all ages.   Older children have not suddenly begun to cost less, nor has the common sense expressed in the earlier versions evaporated.   Rather, the guidelines methodology has evolved “to reflect the average cost of childrearing over the life of the child”;  Child Support and Arrearage Guidelines, June 1, 1994, Preamble § (d)(3).   So, appellant's plea that certainty as to the costs of raising a three-year-old is attainable, and proof is available that less than $1,440 weekly would now be sufficient, is an argument that misses the mark.   A tabulation of only the present costs of raising a child is no longer (if it ever was) sufficient information upon which to determine the correct child support order to make with respect to that child.   Higher costs in later years must be anticipated and incorporated in present orders to the extent possible.

These reflections upon the orders in question illustrate that judicial discretion is a creative discipline.   In its exercise, whether in child support or alimony cases, in custody and parental access cases, or in non-family cases including, for instance, sentencing a convicted person within the broad parameters often dictated by our laws, a trial court's judgment involves weighing sometimes hundreds of variables, applying value judgments forged of the judge's own experiences and reflecting a fair appreciation of society's values as well, and coming up with a conclusion that fairly fits the facts of that case, no matter how numerous and complex they may be.  “Inherent ․ in the concept of judicial discretion is the idea of choice and a determination between competing considerations ․ A court's discretion must be informed by the policies that the relevant statute is intended to advance”;  Negro v. Metas, 110 Conn.App. 485, 495–6 (2008) (citations omitted).   Courts of appeal have deferred to judicial discretion in countless reported decisions not because it is a handy shibboleth or a sacred cow, but because it is the necessary means by which to fit general principles to the particulars of individual cases.   The fact that reasonable minds might differ as to the perfect result in any such case neither invalidates the process nor impugns its essential fairness.

Here, the FSM indicated that he had considered and weighed all the relevant factors included in § 46b–84(d).  That representation by a judge or magistrate is sufficient upon which to conclude that he has discharged his responsibility to have his discretion guided by the applicable legal standard, and no express finding on each of the statutory criteria is required;  Leo v. Leo, 197 Conn. 1 (1985).   What weight the magistrate gave to each of those statutory factors need not be spelled out;  Katreczko v. Katreczko, 1 Conn.App. 686 (1984).   Whether or not another jurist would have entered the same order is immaterial.   On the record in this case, this court cannot conclude that the action of the family support magistrate in setting a current support order is one which discloses a clear abuse of discretion warranting its interference.

C. Treatment of Medical and Daycare Expenses

One unusual aspect of the FSM's order was its assignment of all the cost of the child's day care to mother, and all the cost of his uninsured medical costs to father.   Appellant describes this as an erroneous application of deviation criteria.   While the court would not thus characterize what was done, the issue of whether this allocation constituted a legitimate exercise of the FSM's discretion deserves consideration.

At § 46b–215a–2b(h)(2)(B) of the guidelines, two rules are expressed for setting the noncustodial parent's share of child care costs.   Rule (i), the pattern for most cases, allocates a percentage of such costs to each parent, in proportion to their net cash remaining after accounting for the money transferred between them as child support.   In this case, the allocation would be approximately 76% to obligor, 24% to obligee.

The rule's second prong allows a magistrate or judge to compute a weekly dollar amount which the noncustodian must pay, where there is a finding of noncompliance on his part with a prior child care contribution order.   Here, on March 6, 2009, in light of the numbers before him at that time, the FSM had ordered appellant to pay 82% of the child care costs.   On October 6, 2009, appellee filed a motion for contempt, alleging that appellant had willfully failed to make the payments ordered, in an amount then exceeding $2,500.   The hearing on this motion was deferred to the 2010 trial, in the course of which she testified that he had failed to make the required payments from June of 2009 forward.   She calculated the amount of unpaid care costs to be $6,266 and provided sufficient evidence supporting the conclusion that such costs would continue into the future.   In reliance upon this testimony, and notwithstanding appellant's testimony to the contrary, the FSM found that he had for many months failed to comply with the pendente lite orders.

Given this finding, the weekly order includes a component reflecting the costs of daycare, which in the magistrate's eyes was equal to several hundred dollars.⁹  His assessment of day care costs in a specific dollar amount was expressly permitted by the guidelines.   It is not in and of itself a deviation from the guidelines.   The order is a rational response to a contentious dispute between these parties over the nature and need for child care for their son, a dispute which has already consumed much of their and the court's time and which shows no sign of abating as time goes on.

Appellant also contests the FSM's assignment of one hundred percent of the child's uninsured or unreimbursed medical costs to him.   While the guideline provisions for health care cost division largely parallel those relating to child care costs, the two sections are not identical.   Significantly, the health care provisions, set forth in § 46b–215a–2b(g), have no provision allowing the translation of medical costs into a certain dollar amount.   Medical costs for a healthy child are difficult to anticipate.   Thus far, in the life of this child, they have fortunately been insignificant.   Fate could alter that, although the uninsured costs thereby incurred would likely remain minimal.   The order assigning all of these costs to appellant relieves appellee of a burden, however contingent and unlikely it may be, which the law otherwise imposes upon her.   The “guidelines incorporate an allocation of resources between parents and children that the legislature has decided is the appropriate allocation.   Consequently, our interpretation of the guidelines must seek to preserve this allocation”;  Bishop v. Freitas, 90 Conn.App. 517;  cert. denied, 275 Conn. 931 (2005).

Deviation criteria, on the other hand, are expressly applicable to health care coverage contributions as well as to current support orders;  Regs., Conn. State Agencies § 46b–215a–3.   The FSM's memorandum opined that since his order was within the parameters deemed permissible by Maturo, the orders here did not require resort to deviation criteria.   However, the magistrate assumed, for the sake of argument, that some might disagree, and thus determined that his orders were independently warranted by those criteria.   Regulation Subsection (b)(6)(d), “other equitable factors,” while not specifically alluded to in the memorandum, provides a sufficient basis for his order in that, while allocating to appellant the full burden of uninsured medical expenses which have been insubstantial and which are not likely to amount to any extensive cost in the future, he simultaneously relieved him of any exposure to child care expenses which could potentially exceed their historical levels.¹⁰  If there is any error, it lies not in his analysis and application of the law, but in his neglect to cite this portion of the regulations.   This error, in the eyes of this court, is a defect of form only.

D. Retroactivity

At trial, appellee testified that she moved out of the appellant's home on January 23, 2008, and she sought an order retroactive to that date.   She admitted that before the petition was filed he had made voluntary payments to her totaling about $14,000, as well as weekly payments of $435 after the initial orders, and was willing to credit him for those amounts against the arrearage that would otherwise be calculated.   From the testimony of both parties, it appears that their cohabitation ended “not with a bang, but a whimper,” ebbing and flowing throughout much of 2007 and 2008.   The FSM's finding that their cohabitation (which is independent of their affective relationship) had ended on January 23, 2008, has a foundation in the record and is not clearly erroneous.   In the orders of November 5, 2010, the FSM made that date the effective starting point of his order of $1,440 weekly, allowed appellant credits for the monies previously paid, and ordered the resulting arrearage (which he does not appear to have calculated) discharged at the rate of $285 per week.   The guidelines provide that in circumstances such as this case presents, an order of arrearage payments shall be twenty percent of the current support order;  twenty percent of $1,440 equals $288.

Appellant challenges these orders.   In part, his argument consists of challenges to the factual findings (“the FSM ․ erred in determining the actual date of physical separation,” Petition for Appeal, ¶ 5(f), and “failed to consider Petitioner's regularly recurring gifts of free rent, etc.,” ¶ 5(h)), and challenges to the amount of arrearage payment ordered (“the arrearage order violates Maturo,” ¶ 5(g)).  The first of these must fail, as this court may not retry the case and reverse the magistrate's findings as to income, gifts, and the like.¹¹  The challenge to the arrearage orders possesses the same defects under Maturo which this court has rejected, as discussed above.

In one respect, however, his argument as to retroactivity has a more stable foundation.   Paragraph 5(h) additionally asserts that the arrearage order includes a day care component, when (a) no work-related day care costs were incurred prior to March 2009, and (b) he had already paid his share of such costs “during the period of retroactivity.”   These two contentions are both borne out by appellee's testimony.   She conceded that she had not hired a professional to care for the child until sometime in 2009, and, further, that the arrearage of day care payments she sought by means of her motion for contempt began to accrue in June of 2009.   Moreover, she expressly waived any claim for day care prior to the March 6 orders.   Because the $1,440 order was consciously intended to include day care costs, making it retroactive to January 23, 2008, confers upon appellee the benefit of those costs for an approximate eighteen-month period in which she either had not incurred them, or was in fact being reimbursed by appellant as ordered.   In this single respect, the court concludes that an error of substance did occur.

The court has carefully considered what remedy is appropriate to address that one concern.   The situation is not unlike that facing the Appellate Court recently in Clark v. Clark, 127 Conn.App. 148 (2011).   There, the trial court's dissolution judgment had entered custody, support, alimony, attorney and guardian ad litem fee awards, and property settlement orders, all of which were upheld on appeal.   Additionally, however, the court had tried an issue concerning pendente lite arrearages, but failed in the decree to resolve the dispute over that arrearage.   Ruling that the arrearage amount was a debt which had become a vested property right that should not have been overlooked, the court remanded on that question alone so that the trial court could both find the accurate amount of the arrearage, and fashion an appropriate order for payment.   The general rule, that financial orders in marital actions are a mosaic, and that the careful interweaving of all their parts normally requires post-appeal review of the entire mosaic even if a single portion is askew, was deemed inapplicable;  “․ [e]very improper order ․ does not necessarily merit a reconsideration of all of the trial court's financial orders.   A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors,” 127 Conn.App. 148, 159, quoting Misthopoulos.

To do justice here, where the mosaic fits into a much smaller frame since only child support was the topic under consideration, a correction of the order's detail as to the arrearage regarding day care ought to be made without remanding for a full reconsideration of the child support orders.   Furthermore, the Clark court remanded so that the arrearage could be accurately calculated, and an appropriate payment order entered.   In contrast, the data exists in the record here to determine the magnitude of the error as to day care.   Since the result here is to reduce rather than augment the payments ordered, no new payment schedule need be devised, either.   The current support order of $1,440 per week includes, for the period of January 23, 2008, through June 30, 2009, a daycare allowance of $200 weekly.¹²  For that period, the arrearage figure should have been $1,240 weekly.   The difference, over the period of seventy-five weeks, amounts to a total of $15,000.   Since there appears to remain an arrearage greatly exceeding that amount, the only thing that needs to be done is to order that the arrearage either:  a) be calculated at the rate of $1,240 for the first seventy-five weeks of the support period, and $1,440 weekly thereafter;  or b), if the arrearage has already been calculated in accordance with the orders now under appeal, to subtract $15,000 from that total.   Arithmetically, either formula will yield the same result.

Before leaving this topic, this court must note a concern which explains its use of the word “if” when alluding to the arrearage amount.   This file is voluminous, and despite a diligent search the court has not located an arrearage calculation in spite of the existence of an arrearage payment order.   At some point, the arrearage payments should end, but the record does not at present indicate when that will occur.   Perhaps, because of this appeal, the exercise of calculating the arrearage amount was viewed as an attempt to hit a target too much in motion.   Now, however, with the appeal decided, this housekeeping matter needs to be addressed.   The parties must either produce a stipulation as to the arrearage by July 1, 2011, taking into account all prior orders and payments, or return to the Family Support Magistrate for a hearing to determine the arrearage amount.

B. Income Tax Exemption

Appellant further claims that the FSM erred by awarding to appellee the right to claim the child as an exemption for tax purposes;  Petition, ¶ 5(o).   This court takes note that Internal Revenue Service regulations generally contemplate that the custodial parent is entitled to claim the child as an exemption.¹³  Appellant's claim that the magistrate either made an error of law or abused his discretion in this regard is not obviously correct, and for his failure to brief this claim this court deems it abandoned.

IV. ATTORNEYS FEE CLAIM

Also before the court is appellee's motion (# 178) for an award of attorneys fees incurred in her defense of this appeal.   She seeks $19,495.   Two admissions made at oral argument assist this court in resolving this issue:  1) by appellant, that the amount sought is reasonable, although he does not abandon his resistance to being ordered to pay it;  and, 2) by appellee, that the applicable standard for any award is Conn. Gen.Stat. § 46b–62,¹⁴ thus advancing no claim of litigation misconduct, which might trigger an award under the rule of Ramin v. Ramin, 281 Conn. 324 (2007).

With the evidence in the record below as its database, the court has taken into account all of the factors of § 46b–82,¹⁵ except those inapplicable to this case (the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, and the role played by orders entered pursuant to Conn. Gen.Stat. § 46b–81).   Among the applicable factors, those which in equity dominate this discussion are those relating to the parties' occupations, earnings, vocational skills, and employability.   Throughout the three years of her son's life, appellee, who the magistrate found to possess an earning capacity of $150,000 annually, has chosen to work in her family's business for a fraction of that amount.   While much trial time was spent on the value of the family's gifts to her, it is obvious that a different form of gift was flowing in the opposite direction—her “gift” of more than $300,000 of the amount she could have earned but forewent, in favor of working in that business.   In the same time frame, appellant was working at his presumed full capacity, allowing him to save some of his surplus earnings and now display the liquidity she lacks.   Considering all the financial circumstances of these parties over the life of this case, this court finds that an award of fees to her would be inequitable.

This is not to be interpreted as a negative comment upon the quality or value of the legal services rendered to her as this court has observed them.   Counsel for both parties have performed at a high level of competence and professionalism.

V. CONCLUSION AND ORDER

For the foregoing reasons, this court concludes that the magistrate's child support orders are both legally and factually correct except as to the issue of retroactive day care costs.   With a modification to rectify that detail, they are therefore affirmed.

Accordingly, it is hereby

ORDERED:

1) The Magistrate's orders of November 5, 2010, are hereby modified so as to provide that the support order for the period January 23, 2008, through June 30, 2009, is properly $1,240 per week.   Any arrearages to be calculated will employ that figure, and if an arrearage has previously been determined it shall be reduced correspondingly.

2) All other orders contained within the November 5 memorandum shall remain in full force and effect.

3) Unless the parties stipulate to the amount of any arrearage, as affected by this memorandum, by July 1, 2011, they shall request a hearing before the Family Support Magistrate in order that such an arrearage amount can be found.

4) Appellee's motion for award of attorneys fees is denied.

Boland, J.

FOOTNOTES

FN1. Appellant contends that the treatment of this bonus by the FSM violates the rule in Gentile v. Carneiro, 107 Conn.App. 630 (2008).   That case is both factually and legally distinguishable.   The trial court there had ordered a supplemental portion of an uncertain bonus to be paid as additional child support, at graduated percentages of income (50%, then 25%) substantially higher than the factor rejected in Maturo.   In the instant case, the bonus income utilized has a “readily ascertainable value,” as it has already been paid, as opposed to being “of an unknown amount,” or “speculative” (to quote Gentile );  further, its regularity satisfies Maturo 's direction that “․ when there is a proven, routine consistency in annual bonus income ․ an additional award of child support that represents a percentage of the net cash bonus also may be appropriate ․” 296 Conn. 80, 106..  FN1. Appellant contends that the treatment of this bonus by the FSM violates the rule in Gentile v. Carneiro, 107 Conn.App. 630 (2008).   That case is both factually and legally distinguishable.   The trial court there had ordered a supplemental portion of an uncertain bonus to be paid as additional child support, at graduated percentages of income (50%, then 25%) substantially higher than the factor rejected in Maturo.   In the instant case, the bonus income utilized has a “readily ascertainable value,” as it has already been paid, as opposed to being “of an unknown amount,” or “speculative” (to quote Gentile );  further, its regularity satisfies Maturo 's direction that “․ when there is a proven, routine consistency in annual bonus income ․ an additional award of child support that represents a percentage of the net cash bonus also may be appropriate ․” 296 Conn. 80, 106.

FN2. Whether this satisfies ethical standards of dealing with a potential franchisor is not the subject of this court's scrutiny..  FN2. Whether this satisfies ethical standards of dealing with a potential franchisor is not the subject of this court's scrutiny.

FN3. This consists of $12,195 attributable to father and $1,959 to mother;  in percentages, he has 86.15% and she 13.85% of the total net income..  FN3. This consists of $12,195 attributable to father and $1,959 to mother;  in percentages, he has 86.15% and she 13.85% of the total net income.

FN4. Conn. Gen Stat. § 46b–84(d) provides:  “In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”.  FN4. Conn. Gen Stat. § 46b–84(d) provides:  “In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”

FN5. See, defendant's Exhibits YY and BBB..  FN5. See, defendant's Exhibits YY and BBB.

FN6. Such a leap into the unknown would be particularly inappropriate in this case, as the alleged factual basis for extrapolating the guidelines into infinity came in by way of the appellant's own testimony, to which no objection was interposed.   His credentials as a mathematics expert were not disclosed.   His testimony defending his thesis supports only the undisputed observation that as income levels rise, the percentage of income allocated to child support decreases.   Had the magistrate accepted this theory, the court would then be more easily persuaded that a substantial error had occurred..  FN6. Such a leap into the unknown would be particularly inappropriate in this case, as the alleged factual basis for extrapolating the guidelines into infinity came in by way of the appellant's own testimony, to which no objection was interposed.   His credentials as a mathematics expert were not disclosed.   His testimony defending his thesis supports only the undisputed observation that as income levels rise, the percentage of income allocated to child support decreases.   Had the magistrate accepted this theory, the court would then be more easily persuaded that a substantial error had occurred.

FN7. See, generally, Rutkin, Family Law and Practice, § 33.04, “Theoretical Bases for Child Support Guidelines.”.  FN7. See, generally, Rutkin, Family Law and Practice, § 33.04, “Theoretical Bases for Child Support Guidelines.”

FN8. Conn. Gen.Stat. § 46b–86(a) provides, inter alia, that “․ any final order for the periodic payment of ․ support ․ may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing ․ that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b–215a ․ 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 ․”.  FN8. Conn. Gen.Stat. § 46b–86(a) provides, inter alia, that “․ any final order for the periodic payment of ․ support ․ may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing ․ that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b–215a ․ 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 ․”

FN9. For the record, this court has elsewhere computed the value of the daycare component, to the extent that historical expenses are indicators.   (See footnote 12.)   Conservatively allowing appellant's day care contribution to be $200 weekly, his net support is $1,240, or 10.17% of his net income.   The percentage declines as the day care costs rise.   Had that expense been separately assessed, as is the norm, the residual support order would have been almost two percentage points lower than 11.83—a decent step back from the Maturo ledge..  FN9. For the record, this court has elsewhere computed the value of the daycare component, to the extent that historical expenses are indicators.   (See footnote 12.)   Conservatively allowing appellant's day care contribution to be $200 weekly, his net support is $1,240, or 10.17% of his net income.   The percentage declines as the day care costs rise.   Had that expense been separately assessed, as is the norm, the residual support order would have been almost two percentage points lower than 11.83—a decent step back from the Maturo ledge.

FN10. As indicated above, the child care expense order, under the circumstances of this case, did not by itself constitute a deviation.   Once made, however, it became an equitable factor permitting the consequent deviation as to medical expenses..  FN10. As indicated above, the child care expense order, under the circumstances of this case, did not by itself constitute a deviation.   Once made, however, it became an equitable factor permitting the consequent deviation as to medical expenses.

FN11. Lest the thrust of appellant's claims be misunderstood, this court is not unaware that these gifts in fact occurred, and prior to the trial and the memorandum of decision now under review.   Appellant wanted those gifts somehow valued and taken into account for purposes of setting the current support order, but failed in that quest, as discussed above.   By this aspect of his appeal, he wants them offset against the arrears also.   The magistrate's finding that appellee has an earning capacity of $150,000 annually (in contrast to the $50,000 she asserted), and upon which the current support order is in part based, more than accounts for whatever value might have been attributed to the gifts and added to her actual income for current support determination.   The value of the gifts, in light of this finding as to earning capacity, thus becomes a moot issue..  FN11. Lest the thrust of appellant's claims be misunderstood, this court is not unaware that these gifts in fact occurred, and prior to the trial and the memorandum of decision now under review.   Appellant wanted those gifts somehow valued and taken into account for purposes of setting the current support order, but failed in that quest, as discussed above.   By this aspect of his appeal, he wants them offset against the arrears also.   The magistrate's finding that appellee has an earning capacity of $150,000 annually (in contrast to the $50,000 she asserted), and upon which the current support order is in part based, more than accounts for whatever value might have been attributed to the gifts and added to her actual income for current support determination.   The value of the gifts, in light of this finding as to earning capacity, thus becomes a moot issue.

FN12. The court establishes $200 weekly as the arrearage component attributable to daycare for this period by reference to two separate but corroborating pieces of evidence.   First, appellee testified, on January 14, 2010, that an arrearage in daycare payments had accrued “since sometime in June,” amounting to $6,226.   From the end of June through January 14, twenty-eight weeks elapsed.   One twenty-eighth of $6,226 is $222.   However, she would have done that computation using the pendente lite order's 82% allocation to appellant, whereas, by virtue of the retroactivity of the November 5 orders, the correct percentage due from appellant was 76%;  at this rate, his weekly share was $205.75.   Secondly, she had produced a spreadsheet claiming total daycare costs of $251.25 weekly for calendar year 2009 (a copy of this spreadsheet is attached to appellant's post-trial brief). 82% of $251.25 is $206, while 76% thereof is $191.   This court has rounded these various products to $200 weekly..  FN12. The court establishes $200 weekly as the arrearage component attributable to daycare for this period by reference to two separate but corroborating pieces of evidence.   First, appellee testified, on January 14, 2010, that an arrearage in daycare payments had accrued “since sometime in June,” amounting to $6,226.   From the end of June through January 14, twenty-eight weeks elapsed.   One twenty-eighth of $6,226 is $222.   However, she would have done that computation using the pendente lite order's 82% allocation to appellant, whereas, by virtue of the retroactivity of the November 5 orders, the correct percentage due from appellant was 76%;  at this rate, his weekly share was $205.75.   Secondly, she had produced a spreadsheet claiming total daycare costs of $251.25 weekly for calendar year 2009 (a copy of this spreadsheet is attached to appellant's post-trial brief). 82% of $251.25 is $206, while 76% thereof is $191.   This court has rounded these various products to $200 weekly.

FN13. Publication 504 of the Internal Revenue Service, “Divorced or Separated Parents,” (available online at www.irs.gov.), explains that pursuant to IRS Regulations, the exemption for a child of separated parents ordinarily belongs to the custodial parent.   A noncustodian such as appellant may only claim the exemption when a court order or agreement with the custodian so allows..  FN13. Publication 504 of the Internal Revenue Service, “Divorced or Separated Parents,” (available online at www.irs.gov.), explains that pursuant to IRS Regulations, the exemption for a child of separated parents ordinarily belongs to the custodial parent.   A noncustodian such as appellant may only claim the exemption when a court order or agreement with the custodian so allows.

FN14. Conn. Gen.Stat. § 46b–62, “Orders for payment of attorneys fees in certain actions,” provides in relevant part, that in any proceeding seeking relief under the provisions of this chapter and sections 17b–743, 17b–744, 45a–257, 46b–1, 46b–6, 46b–212 to 46b–213v, inclusive, 47–14g, 51–348a and 52–362, the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b–82..  FN14. Conn. Gen.Stat. § 46b–62, “Orders for payment of attorneys fees in certain actions,” provides in relevant part, that in any proceeding seeking relief under the provisions of this chapter and sections 17b–743, 17b–744, 45a–257, 46b–1, 46b–6, 46b–212 to 46b–213v, inclusive, 47–14g, 51–348a and 52–362, the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b–82.

FN15. Conn. Gen.Stat. § 46b–82 provides, in relevant part, that in determining an attorneys fee award the court “shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”.  FN15. Conn. Gen.Stat. § 46b–82 provides, in relevant part, that in determining an attorneys fee award the court “shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”

Boland, John D., J.