Division of extracurricular costs is separate from the child support guidelines: Marcus v. Cassara 223 Conn. App. 69 (2023)

Division of extracurricular costs is separate from the child support guidelines: Marcus v. Cassara 223 Conn. App. 69 (2023)

Marcus v. Cassara 223 Conn. App. 69 (2023) (division of extracurricular costs is separate from the child support guidelines)

Officially released December 26, 2023

 

In Short: The dicta is the key to the case: the trial court may order division of extracurricular expenses between the parties pursuant to § 46b-56, separate and distinct from the basic child support obligation and guideline analysis, without any finding of deviation. (The holding was that the trial court erred by granting a modification based on a ground not raised in the motion to modify).

 

The parties were never married and had three children together.  In 2008 Father filed a custody application.  In 2009, the trial court issued an oral ruling including custody and visitation orders, providing joint legal custody with physical custody and final decision-making authority to Mother and visitation rights to Father.  Father was found to have an earning capacity of $200k despite his claims that he was earning only $100k, and Mother an earning capacity of $20k despite her being unemployed.  Father was ordered to pay $528/week child support and various expenses in accordance with the guidelines and, in the same apportionment as the guideline expenses, 72% of reasonable extracurricular expenses.

 

Father filed a motion for modification in 2021, requesting that the court modify the percentage allocation for extracurricular activities, alleging that his earning capacity from the 2009 decision is more than double his actual income, and alleging that Mother was unilaterally signing the children up for activities he could not afford.  Father did not allege that such division of extracurricular activities constituted a deviation from the guidelines and should be modified on that basis.

 

In 2022 the trial court (Hon. Winslow) held a remote hearing on the motion.  The trial court indicated that extracurricular activities “are not regular child support, they are a deviation from the child support guidelines and the court is required to find a reason for the deviation …” The trial court issued an oral ruling granting the motion for modification as to the extracurricular activities, finding that the children do not have extraordinary expenses warranting deviation from the guidelines and eliminating the requirement for a contribution.  The trial court subsequently issued a memorandum of decision expanding its reasoning, stating that, in the absence of an agreement of the parties, the trial court must find a basis for deviation in order to require contribution to extra-curricular activities, and that it was appropriate to modify based on a lack of basis for such deviation.  The trial court found that Mother had been using her decision-making and the existing orders as a means of “revenge.” The trial court made no finding as to a change in either party’s earning capacity.

 

Mother appealed, contending that there had been no substantial change in circumstances and that the trial court had based its decision on irrelevant, nonfinancial factors.

 

The Appellate Court articulated the abuse of discretion standard as well as the fact that plenary review applies to the correct standard of law and the application of child support guidelines.  The Appellate Court noted the two bases for modifying a child support order: (1) a substantial change in circumstances, or (2) a showing that a final order deviates from the guidelines without the requisite findings.”

 

The Appellate Court held that the trial court exceeded its authority in modifying the order regarding extracurricular activities because it based its decision on a ground that was not contained in Father’s motion for modification.  Reliance of the trial court on a ground not raised in a motion to modify constitutes abuse of discretion absent amendment to the motion.   Father had not pled and did not raise the issue of the original orders being a deviation from the guidelines, and he himself had requested a modification to a 50-50 division of such costs.

 

Having already established a basis for remand, the Appellate Court moved in a different direction and set forth its disagreement with the trial court’s conclusion that the extracurricular activities order constituted a deviation from the guidelines.  It cited Powers v. Hiranandani, 197 Conn. App. 384 (2020) for the principle that the court may order payment of extracurricular activities pursuant to § 46b-56, rather than § 46b-215b.  The Appellate Court found that the original order did not deviate from the guidelines in its $528/week child support award, and ordered division of extracurricular activities completely separately from the guideline award pursuant to § 46b-56.  (Side note: so far as I can tell, nobody involved in this argument or decision raised the fact that the original order was, by its very definition, a deviation from the guidelines because the court had assigned each party an earning capacity, which is in and of itself a deviation criteria, but that is of little import if extracurriculars can be divided separately from the guideline considerations.)

 

The Appellate Court stated that the guidelines address only “basic” child support obligations.  “Because the basic child support obligation as set forth in the child support guidelines does not encompass the expenses for extracurricular activities, imposing an order to account for those expenses is not inconsistent with, and does not deviate from, the presumptive amount under those guidelines. See Maturo v. Maturo, supra, 296 Conn. 107 (differentiating between “the basic child support obligation” and “additional support obligations imposed on the noncustodial parent for education, health care, recreation, insurance and other matters”

 

In my view, this analysis by the Appellate Court is both entirely dicta (the holding that the modification was not based on any ground in Father’s motion could have ended the analysis without any further analysis) and, more problematically, effectively creates an entire second basis for financial support for children that is separate from the scope and analysis of the child support obligation.  According to this decision, you can have different or additional financial orders beyond the scope of the presumptive guidelines by deviating based on allowable criteria, and you can also simply look to § 46b-56 for division of financial obligations that are not “basic” aspects of supporting a child, such as extracurricular activities (and once the door is opened, who knows what else?).  And, of course, you can also have a separate analysis of a presumptive range of support for high-income families per the Maturo/Misthopolous line of cases.  This conundrum already existed, because the Appellate Court pointed to a long litany of decisions where the Appellate and Supreme Courts have touched on cases which had divisions of extracurricular costs.

 

The takeaway is, a trial court may order division of extra-curricular expenses (and maybe other costs not written anywhere in a statute?) as it sees fit, without finding a deviation or the parties being above-guideline, by citing to § 46b-56 and entering the order separately from the child support guideline findings.  In some ways, this case changes nothing, because trial courts have regularly issued orders dividing extra-curricular costs, as the decision points out.  It provides a specific basis to legitimize such awards however, and possibly builds some foundation for other ways to go around the guidelines.

 

The Judgment was reversed and the case remanded to reconsider the motion to modify in accordance with the opinion.

 

Judge Clark concurred with the decision but disagreed with the notion of a “separate order” as a basis for the extra-curricular activity award.  Under Judge Clark’s analysis, the extra-curricular order constituted a deviation, despite the trial court’s failure to state as much when entering the original orders, and it subject to modification on that basis if that basis had been pled.  Judge Clark’s analysis, if it were the majority, would provide a much more straightforward way to handle such divisions in future orders which appears more consistent with the statutes and regulations: namely, division of extracurricular costs could be accomplished by means of a deviation, not by a new form of “separate order” independent of the guideline analysis.

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