Kirwan v. Kirwan

***********************************************

The “officially released” date that appears near the be-

ginning of each opinion is the date the opinion will be pub-

lished in the Connecticut Law Journal or the date it was

released as a slip opinion. The operative date for the be-

ginning of all time periods for filing postopinion motions

and petitions for certification is the “officially released”

date appearing in the opinion.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut

Reports and Connecticut Appellate Reports. In the event of

discrepancies between the advance release version of an

opinion and the latest version appearing in the Connecticut

Law Journal and subsequently in the Connecticut Reports

or Connecticut Appellate Reports, the latest version is to

be considered authoritative.

The syllabus and procedural history accompanying the

opinion as it appears in the Connecticut Law Journal and

bound volumes of official reports are copyrighted by the

Secretary of the State, State of Connecticut, and may not

be reproduced and distributed without the express written

permission of the Commission on Official Legal Publica-

tions, Judicial Branch, State of Connecticut.

***********************************************

CHELSEA CHAPMAN KIRWAN

v. LAURENCE KIRWAN

(AC 40008)

(AC 40047)

Sheldon, Prescott and Bear, Js.

Syllabus

The defendant appealed to this court from the judgments of the trial court

dissolving his marriage to the plaintiff and ordering him to make a lump

sum payment to her of $91,000 to satisfy a child support arrearage. The

court had approved an agreement by the parties to enter into binding

mediation/arbitration as to, inter alia, alimony and the division of marital

property. The issue of child support was reserved to the court in accor-

dance with the parties’ agreement and as required by statute (§ 52-408).

The arbitrator made several factual findings in her award, including a

determination that the defendant’s annual gross income was approxi-

mately $400,000 per year. The trial court rendered judgment dissolving

the marriage and incorporated the arbitrator’s award into the dissolution

judgment. Thereafter, the court conducted an evidentiary hearing as to

child support and found, inter alia, that the defendant’s gross annual

income was $560,637 for the purpose of calculating his child support

obligation. The court ordered him to make weekly child support pay-

ments and credited him for having made certain postjudgment child

support payments. Subsequently, the court denied a motion for contempt

filed by the plaintiff as to the child support arrearage, but ordered the

defendant to make the $91,000 lump sum payment. Held:

1. The defendant could not prevail on his claim that the trial court, in making

its child support award, was bound by the arbitrator’s finding that his

gross annual income was $400,000 and, thus, that the court’s finding of

$560,637 was clearly erroneous: the arbitrator’s finding of gross income,

which was made in the context of determining alimony, was not entitled

to preclusive effect in the court’s adjudication of child support, as the

provision in § 52-408 that excludes from arbitration issues related to

child support is broad, the absence of qualifying language conveyed the

legislature’s intent to render inarbitrable all issues, legal and factual,

that pertain to child support, and the defendant offered no analysis of

§ 52-408 in asserting that the arbitrator’s finding should have been bind-

ing on the court in determining his child support obligation; moreover,

even if the exclusionary provision of § 52-408 were not clear and unam-

biguous, this court’s interpretation was consistent with extrinsic evi-

dence of the legislature’s intent, and it would be inconsistent with

concerns for the best interests of children to permit issues related to

child support to be resolved conclusively in arbitration, which is a

nonjudicial forum outside the control of our courts, as that would consti-

tute an impermissible delegation of judicial authority.

2. The trial court’s finding that the defendant earned $400,000 in gross income

from employment was not clearly erroneous; that court reasonably could

have determined that the defendant’s gross income from employment

was at least $400,000, as the plaintiff, who had worked as the business

administrator for the defendant’s medical practice, testified that the

defendant had income from the medical practice, from consulting for

medical companies and from teaching, and the defendant disclosed on

a credit application in connection with an automobile lease that his

gross annual income from employment was $400,000.

3. The defendant’s claim that the trial court improperly determined the

amount of gross rental income that he received from property that was

awarded to him was unavailing, as a sufficient evidentiary basis existed

for the court’s finding; although the court utilized a rental income chart

that had not been admitted into evidence, the chart contained numbers

that reflected those in the defendant’s 2015 tax return, which had been

admitted into evidence, the figures on the chart were easily verified by

comparing them with those on the tax return, and the court properly

omitted from its calculation two of the defendant’s properties that had

generated substantial losses, as those properties were sold prior to the

child support hearing and the defendant failed to explain why it would

be improper for the court to consider only properties that would generate

income in the future in calculating income on which to base his prospec-

tive child support obligations.

4. The defendant could not prevail on his claim that the trial court abused

its discretion in calculating his gross income when it failed to take into

account his payment of life insurance premiums; that court had no

evidentiary basis from which to calculate a credit against the defendant’s

income for a life insurance policy to benefit the children, as he never

provided the court with a breakdown of the premium payments for life

insurance that he disclosed on his financial affidavits, and although he

indicated on his financial affidavit a monthly personal expense for life

insurance, he listed no details of the policies’ beneficiaries or the pre-

mium payments per policy.

5. The trial court did not abuse its discretion in rendering its child support

order, as the order was consistent with the criteria established by statute

(§ 46b-84 [d]) and within the range between the minimum and maximum

support amounts established by the child support guidelines, and

because no deviation from the guidelines occurred, the court was not

required to provide any additional explanation for its decision.

6. The defendant’s claim that the trial court failed to credit the voluntary child

support payments that he made during the child support proceedings

was dismissed as moot: there was no practical relief that could be

afforded to the defendant with respect to his claim that the court was

obligated to subtract the amount of the voluntary payments from the

amount of his arrearage, rather than providing him with credit for the

voluntary payments by temporarily reducing his child support obliga-

tions, as the defendant had reduced his weekly child support obligation

in accordance with the court’s order and, thus, received full credit for

his voluntary child support payments; moreover, even if the trial court

abused its discretion in the manner in which it credited the voluntary

payments, any decision by this court would be academic, as it would

not alter the status quo, which was that the defendant received full

credit for his voluntary payments.

7. The defendant could not prevail on his claim that the trial court improperly

ordered him to pay a lump sum to satisfy the child support arrearage,

rather than permitting him to satisfy that arrearage on a weekly basis,

as contemplated by the child support arrearage guidelines; the defendant

failed to demonstrate that the arrearage guidelines were applicable to

the lump sum order or that the court abused its discretion in ordering

a lump sum payment, as the arrearage guidelines and the applicable

state regulation (§ 46b-215a-3a [a]) reflect that the determination of lump

sum payments is subject to the discretion of the court, and the court

articulated that it ordered the lump sum payment because the defendant

had the ability to pay, given his income and other finances, including

the court’s release to him of $100,000, which had been held in escrow,

to aid him in meeting his child support obligations.

8. The defendant’s claim that the trial court should have dismissed, rather

than denied, the plaintiff’s motion for contempt was not reviewable, the

defendant having failed to raise that claim before the trial court; although

the defendant had asked the trial court to deny the motion because he

had not violated any clear and unambiguous order pertaining to the

child support arrearage, he never asked the court to strike or dismiss

the motion on the basis of legal or factual insufficiencies, or on the

ground that it did not comply with our rules of practice.

Argued May 30—officially released October 23, 2018*

Procedural History

Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial dis-

trict of Stamford-Norwalk, where the court, Tindill, J.,

approved the agreement of the parties to enter into

binding mediation/arbitration as to certain disputed

matters; thereafter, the arbitrator issued an award and

entered certain orders; subsequently, the arbitrator

issued a clarification of the award; thereafter, the court

granted the defendant’s motion to confirm the arbitra-

tor’s award, and rendered judgment incorporating the

arbitrator’s award and clarification, and dissolving the

marriage and granting certain other relief; subsequently,

the court issued certain orders; thereafter, the court

denied the defendant’s motion to reargue and denied

in part the defendant’s motion for clarification, and

the defendant appealed to this court; subsequently, the

court, Tindill, J., denied the plaintiff’s motion for con-

tempt, and entered certain orders as to child support

and attorney’s fees, and the defendant filed a second

appeal; thereafter, the court, Tindill, J., issued an artic-

ulation of its decision; subsequently, this court consoli-

dated the appeals. Affirmed.

Alan Scott Pickel, for the appellant (defendant).

Joseph T. O’Connor, for the appellee (plaintiff).

Opinion

PRESCOTT, J. In these consolidated appeals arising

out of a marital dissolution action, we must determine,

inter alia, whether an arbitrator’s factual finding regard-

ing the gross income of a party, which was made in

the course of determining alimony and the equitable

distribution of marital assets, is binding on the court

with respect to its subsequent adjudication of child

support, an issue that was statutorily and contractually

excluded from the arbitration. We conclude that it was

proper for the trial court to make its own independent

findings regarding gross income, unfettered by the pre-

vious findings of the arbitrator.

The present appeals arose following the court’s Octo-

ber 23, 2015 judgment dissolving the marriage of the

plaintiff, Chelsea Chapman Kirwan, and the defendant,

Laurence Kirwan. The judgment incorporated by refer-

ence a pendente lite arbitration award that had resolved

most of the issues raised in the dissolution action,

including alimony, the distribution of marital assets,

and the enforceability of a premarital agreement. Both

the parties’ arbitration agreement and the arbitrator’s

award, however, expressly reserved for the Superior

Court resolution of issues related to custody and child

support.1 Following an evidentiary hearing, the court,

on December 7, 2016, issued child support orders,

which, by agreement of the parties, were made retroac-

tive to the date of the dissolution judgment. The defen-

dant appeals from those child support orders (AC

40008). The defendant also appeals from a subsequent

remedial order that the court issued in response to a

motion for contempt and that required the defendant

to make a $91,000 lump sum payment to the plaintiff

to satisfy a child support arrearage resulting from the

court’s December 7, 2016 order making his child sup-

port obligation retroactive to October 23, 2015 (AC

40047).2

The defendant claims on appeal that the court

improperly (1) failed to adhere to the arbitrator’s factual

findings regarding his gross income, as set forth in the

arbitrator’s award, despite the fact that the court incor-

porated the arbitrator’s award by reference into the

dissolution judgment; (2) found that his gross income

from employment was $400,000; (3) calculated his gross

rental income from property awarded to him as part of

the division of marital assets; (4) failed to take into

consideration his payments of premiums for life insur-

ance policies for the benefit of his children;3 (5) failed

to explain why the plaintiff was entitled to support

payments that exceeded the child support guidelines’

minimum presumptive amount; (6) gave prospective

credit for voluntary child support payments made dur-

ing the pendency of the child support hearings rather

than crediting them against the lump sum arrearage;

(7) ordered a lump sum repayment of the child support

arrearage rather than permitting repayment on a peri-

odic basis as contemplated by the child support arrear-

age guidelines; and (8) failed to dismiss the plaintiff’s

motion for contempt rather than considering the merits

of the motion. We conclude that the defendant’s claim

regarding the manner in which he was credited for

voluntary child support payments is moot because there

is no practical relief that we could order in light of the

fact that he has received full credit for such payments,

and that the arguments advanced in support of the

remainder of the defendant’s claims are unpersuasive.

Accordingly, we affirm the judgments of the court.

The following facts and procedural history are rele-

vant to our resolution of these appeals.4 The parties

were married in 2001. The defendant is a plastic surgeon

with offices in New York, Norwalk, and London, as well

as a consultant and a professor of plastic surgery. The

plaintiff is college educated and worked in pharmaceuti-

cal sales until shortly after she married the defendant, at

which time she worked for the defendant in his medical

practice. The parties have three minor children

together, one of whom has special needs.5 Prior to their

marriage, the parties entered into a premarital

agreement that, in relevant part, limited the plaintiff’s

alimony in the event of divorce to $50,000 a year for

five years and allocated 45 percent of the value of the

marital home to the plaintiff as her share of marital

property. In September, 2012, the plaintiff initiated an

action to dissolve the parties’ marriage.

On May 26, 2015, the court, Tindill, J., approved an

agreement by the parties to enter into binding media-

tion/arbitration of the dissolution action.6 Pursuant to

the parties’ arbitration agreement, which was made an

order of the court, ‘‘[t]he parties agree[d] that the fol-

lowing issues in their action for dissolution of marriage

shall be the subject of mediation and, if the parties are

unable to resolve these issues via mediation, to binding

arbitration . . . .’’ The list of issues to be resolved in

arbitration included the validity and enforceability of

the premarital agreement; the validity of an alleged

rescission of that premarital agreement; a determina-

tion of alimony in accordance with General Statutes

§ 46b-82; an equitable division of marital property,

assets, and liabilities pursuant to General Statutes

§ 46b-81; division of attorney’s fees and guardian ad

litem fees; and any other relief deemed appropriate by

the arbitrator ‘‘except as it pertains to child custody

and issues of child support.’’

On August 4, 2015, the arbitrator, former Superior

Court Judge Elaine Gordon, issued her arbitration

award. As a preliminary matter, the arbitrator deter-

mined that the parties’ premarital agreement was

unconscionable, and thus unenforceable, due to ‘‘the

present, uncontemplated circumstances’’ of the par-

ties.7 The arbitrator issued a number of orders regarding

alimony and the distribution of marital assets, including

an order directing the sale of the marital home. In sup-

port of her orders, the arbitrator made several factual

findings, including that ‘‘[t]he defendant’s annual

[gross] income is found to be approximately $400,000

per year based on his income tax returns, business

financial statements and the information he has pro-

vided to lending institutions on his applications.’’ As

previously noted, the arbitration award indicated that

‘‘[t]he issues of custody, access, child support, mainte-

nance and cost of medical insurance for minor children

and unreimbursed medical expenses are reserved to

the Connecticut Superior Court.’’8

On September 1, 2015, the defendant filed a motion

asking the court to confirm the arbitration award and

to render judgment dissolving the parties’ marriage in

accordance with the arbitration award. On that same

date, the plaintiff filed a motion asking the court to

issue orders on the unresolved matters of child support

and postsecondary educational expenses. Neither party

filed an objection to the other party’s motion, and the

matters were set down for a hearing on October 23,

2015. At that time, the court rendered a judgment of

dissolution of marriage that incorporated by reference

the arbitration award and subsequent clarification.9 The

parties agreed that the court would determine the defen-

dant’s child support obligations, including the issue of

unreimbursed medical expenses and child care, after an

evidentiary hearing, and that child support obligations

would be made retroactive to the date of dissolution.

The court conducted an evidentiary hearing on the

issue of child support and on certain other postjudg-

ment motions of the parties beginning on December

23, 2015, and continuing to January 22, May 25, June

20 and June 29, 2016. Both parties were present at

all hearings and represented by counsel. Both parties

testified and submitted a number of exhibits into

evidence.

On December 7, 2016, the court issued a memoran-

dum of decision regarding child support. The court indi-

cated that it carefully had reviewed the parties’ various

claims for relief, memoranda in support thereof, trial

briefs, replies, evidence, testimony, relevant rules, stat-

utory authority, case law, and the arguments of counsel.

The court made a number of credibility determinations

and factual findings, including that neither party ‘‘was

credible regarding their expenses for the children’’ and

that ‘‘[t]he defendant’s testimony and evidence regard-

ing his sources of income was not credible.’’ The court

found that, ‘‘[b]ased on the credible evidence before

the court, the defendant has a gross annual income of

$560,637—$400,000 gross income from employment as

Dr. K Services, P.C., plus $160,637 of rental income

from various real estate investments.’’ The court also

found that ‘‘[t]he parties’ combined net weekly income

is $7990’’ and, thus, that ‘‘[t]he parties’ net weekly

income exceeds the $4000 limit contained within the

child support guidelines.’’ The court calculated that

‘‘[f]or three children, the presumptive amount of child

support is between $824 and $1564 per week . . . .’’10

The court ordered that the defendant ‘‘shall pay

$1500.00 per week in child support for the parties’ three

children, retroactive to October 23, 2015 . . . .’’

(Emphasis added.) The court also ordered that the

plaintiff is responsible for 25 percent of any unreim-

bursed medical expenses and child care, and the defen-

dant is responsible for the remaining 75 percent.

Moreover, ‘‘[t]he [d]efendant shall be given credit for

the $18,432.41 in voluntary, postjudgment child support

payments made from the date of the dissolution through

June 30, 2016.’’ The court instructed the defendant that

if he claimed any additional support payments after

June 30, 2016, he should provide the plaintiff’s counsel

with proof of those payments within one week of the

court’s order. The court stated that credit for the volun-

tary support payments ‘‘shall be in the form of a deduc-

tion from current support in equal payments over the

course of one year.’’ (Emphasis added.) In other words,

given that there are fifty-two weeks in a year, the defen-

dant would be entitled to reduce his $1500 child support

obligation each week for the first year by an amount

equal to one fifty-second of his total voluntary postjudg-

ment child support payments. Finally, the court ordered

that the defendant ‘‘shall continue to provide and main-

tain health, dental, and vision insurance for the minor

children,’’ and ‘‘shall maintain insurance on his life in

the amount of $2,000,000, naming the three minor chil-

dren as equal beneficiaries, for as long as he has a child

support obligation to the twins.’’

On December 23, 2016, the defendant filed a motion

to reargue the court’s December 7, 2016 decision in

which he claimed that the court had miscalculated his

income for purposes of the support orders. Specifically,

he argued that the arbitrator had found his gross annual

income to be $400,000, the court had adopted that find-

ing in its judgment of dissolution when it incorporated

the arbitration award therein and, therefore, ‘‘the court

should not have added on top of that figure rental

income that was already included in the total annual

income finding of $400,000.’’11 Furthermore, he argued

that the court had failed to reduce his net income by the

amount he had paid in premiums for the life insurance

policy benefiting the children. The court denied the

motion to reargue on December 29, 2016, without com-

ment. The defendant also filed a motion for clarification

requesting, inter alia, that the court set forth ‘‘the man-

ner and method’’ it used to calculate the defendant’s

gross income. The court denied that motion in part.

On December 12, 2016, the plaintiff filed a motion

for contempt claiming that a child support arrearage

of $91,000 existed because the court had made the

defendant’s child support obligation retroactive to the

date of dissolution. The plaintiff argued that the defen-

dant should have paid the arrearage from money that

the court had ordered released from an escrow account

to the defendant.12 In response, the defendant filed an

objection to the plaintiff’s motion for contempt, arguing

that there was never a clear and unambiguous court

order requiring him to immediately pay any child sup-

port arrearage arising from the December 7, 2016

orders. Accordingly, he argued that the motion for con-

tempt should be denied and that he was entitled to

attorney’s fees for having to defend against a frivo-

lous motion.

The court held a hearing on the motion for contempt

on January 3, 2017. The following day, the court issued

an order denying the motion for contempt, explaining

that the plaintiff had failed to meet her burden of prov-

ing by clear and convincing evidence that the defendant

wilfully had violated a court order. The court neverthe-

less took the opportunity to enter a remedial order

requiring the defendant to pay the $91,000 child support

arrearage to the plaintiff, in full, by no later than April

12, 2017.13 The court also denied the defendant’s request

for attorney’s fees. These appeals followed.

We begin by stating the overarching and well settled

standard that governs our review of claims in divorce

actions. ‘‘An appellate court will not disturb a trial

court’s orders in domestic relations cases unless the

court has abused its discretion or it is found that it

could not reasonably conclude as it did, based on the

[evidence] presented. . . . It is within the province of

the trial court to find facts and draw proper inferences

from the evidence presented. . . . In determining

whether a trial court has abused its broad discretion in

domestic relations matters, we allow every reasonable

presumption in favor of the correctness of its action.

. . . [T]o conclude that the trial court abused its discre-

tion, we must find that the court either incorrectly

applied the law or could not reasonably conclude as it

did. . . . Appellate review of a trial court’s findings of

fact is governed by the clearly erroneous standard of

review. . . . A finding of fact is clearly erroneous when

there is no evidence in the record to support it . . .

or when although there is evidence to support it, the

reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.’’ (Emphasis added; internal quotation

marks omitted.) Milazzo-Panico v. Panico, 103 Conn.

App. 464, 467–68, 929 A.2d 351 (2007). ‘‘As has often

been explained, the foundation for this standard is that

the trial court is in a clearly advantageous position to

assess the personal factors significant to a domestic

relations case . . . .’’ (Internal quotation marks omit-

ted.) Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d

449 (2013).

I

The defendant first claims that, in determining his

annual income for the purpose of child support, the

court was bound by the factual findings of the arbitrator

as set forth in the arbitration award and incorporated

by reference into the court’s judgment of dissolution.

He argues that the court’s finding that he had a total

gross annual income of $560,637 was inconsistent with

the prior finding of the arbitrator that his gross annual

income was $400,000, and, therefore, the court’s finding

was clearly erroneous. According to the defendant,

because the court’s child support orders were based

on an erroneous factual finding, this court should order

them set aside. The plaintiff responds that a trial court

is not bound to accept the factual findings in an arbitra-

tor’s award when determining an issue that was specifi-

cally excluded by the parties from arbitration and

expressly reserved to the Superior Court by the award

and by statute. We agree with the plaintiff and, accord-

ingly, reject the defendant’s claim.

Stated succinctly, the issue before us is whether the

arbitrator’s factual finding regarding gross income,

which was made in the context of determining alimony

and other issues submitted to arbitration, is entitled to

preclusive effect in the court’s subsequent adjudication

of child support, an issue that was expressly excluded

from arbitration by General Statutes § 52-408, which

excludes from the scope of arbitration in dissolution

actions ‘‘issues related to child support,’’ and the par-

ties’ arbitration agreement. In arguing that the trial

court was required to adopt the arbitrator’s findings of

fact regarding the parties’ gross income, the defendant

relies on the deference that courts generally have

afforded to arbitration decisions and also, by implica-

tion, invokes the doctrine of collateral estoppel or

issue preclusion.

The defendant’s arguments require us to engage in

statutory interpretation of § 52-408, which presents a

question of law over which our review is plenary. See

Smith v. Smith, 249 Conn. 265, 272, 752 A.2d 1023

(1999). ‘‘[W]hen construing a statute, [o]ur fundamental

objective is to ascertain and give effect to the apparent

intent of the legislature. . . . In other words, we seek

to determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . In seeking to determine the meaning,

General Statutes § 1-2z directs us first to consider the

text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered. . . . When a statute is

not plain and unambiguous, we also look for interpre-

tive guidance to the legislative history and circum-

stances surrounding its enactment, to the legislative

policy it was designed to implement, and to its relation-

ship to existing legislation and common law principles

governing the same general subject matter . . . .’’

(Internal quotation marks omitted.) Sosin v. Sosin, 300

Conn. 205, 227–28, 14 A.3d 307 (2011).

We begin by examining the text of § 52-408, which

legislatively sanctions the use of arbitration in civil

actions, including actions for the dissolution of mar-

riage. The statute provides in relevant part: ‘‘[A]n

agreement in writing between the parties to a marriage

to submit to arbitration any controversy between them

with respect to the dissolution of their marriage, except

issues related to child support, visitation and custody,

shall be valid, irrevocable and enforceable, except when

there exists sufficient cause at law or in equity for the

avoidance of written contracts generally.’’ (Emphasis

added.) General Statutes § 52-408.

The statute’s use of the term ‘‘issues related to child

support’’ is both broad and unqualified. For example,

the statute does not distinguish between legal and fac-

tual issues. The absence of such qualifying language

conveys the legislature’s intent to render inarbitrable

not only a final determination of a party’s child support

obligations but any and all related issues, both legal

and factual, that pertain to such a determination.

Our child support guidelines are based on an income

share model; see Child Support and Arrearage Guide-

lines (2015), preamble, § (d); meaning an accurate and

complete determination of the parties’ respective

incomes is essential to ensure that adequate resources

are directed toward affected children. Because a finding

of the parties’ income is a mandatory prerequisite to

the determination of a child support order, it is indisput-

ably an ‘‘issue related to child support,’’ and such a

finding cannot be conclusively determined by an arbi-

trator for purposes of calculating child support under

the clear and unambiguous language of § 52-408. The

defendant offers no analysis of § 52-408 in asserting that

the arbitrator’s factual finding regarding the defendant’s

income should be binding on a court determining child

support obligations.14

Even if we were not convinced that the exclusionary

provision of § 52-408 is clear and unambiguous as to

its scope, our interpretation is consistent with extrinsic

evidence of the legislature’s intent, including circum-

stances surrounding the enactment of the provision at

issue, the policy it was intended to implement, and its

relationship to common-law principles. The language

in § 52-408 excluding from arbitration issues related to

child support was added to the statute by the legislature

in 2005.15 See Public Acts 2005, No. 05-258, § 2 (P.A. 05-

258). The exclusionary language is consistent with the

importance that this state attaches to accurate and equi-

table determinations of child support as reflected in

our child support guidelines.16 Although it is true that

the promulgation of our child support guidelines, which

are applicable to all determinations of child support,

‘‘substantially circumscribe[d] the traditionally broad

judicial discretion of the court in matters of child sup-

port’’; (internal quotation marks omitted) Maturo v.

Maturo, 296 Conn. 80, 116, 995 A.2d 1 (2010); the court

nevertheless retains discretion to deviate from those

guidelines if it determines that doing so ‘‘would be in

the best interests of the child and financially equitable

to the parties.’’ Id.

Custody and support issues not only impact the

divorcing parents but also significantly impact the

future health and welfare of children for whom child

support is intended to benefit. In Guille v. Guille, 196

Conn. 260, 262–64, 492 A.2d 175 (1985), our Supreme

Court discussed the independent nature of a child’s

right to support and held that this right cannot be viti-

ated or circumscribed by way of an agreement between

the parents. In Guille, the court first recognized that

General Statutes § 46b-84 (a) imposes a duty on divorc-

ing parents to ‘‘maintain the child according to their

respective abilities, if the child is in need of mainte-

nance.’’ Id., 263. In the court’s view, this statutory duty

‘‘creates a corresponding right in the children to such

support.’’ (Internal quotation marks omitted.) Id. The

court in Guille also emphasized that although child

support orders are ‘‘made and enforced as incidents to

divorce decrees . . . the minor children’s right to

parental support has an independent character, sepa-

rate and apart from the terms of the support obligations

as set out in the judgment of dissolution.’’ (Citation

omitted; internal quotation marks omitted.) Id.

‘‘The independent nature of a child’s right to parental

support [had been] recognized by [our Supreme Court]

long before that right was codified in our statutes.’’ Id.

As an example, the court in Guille cited to its decision

in Burke v. Burke, 137 Conn. 74, 80, 75 A.2d 42 (1950),

in which it stated: ‘‘A husband and wife cannot make

a contract with each other regarding the maintenance

or custody of their child which the court is compelled

to enforce, nor can the husband relieve himself of his

primary liability to maintain his child by entering into

a contract with someone else to do so. The welfare of

the child is the primary consideration. The court may

recognize the contract, but such contract will not be

enforced longer than it appears to be for the best inter-

ests of the child, and parents entering into such a con-

tract are presumed to do so in contemplation of their

obligations under the law and the rights of the child.’’

(Internal quotation marks omitted.) Guille v. Guille,

supra, 196 Conn. 264.

In the arbitration agreement in the present case, the

list of issues to be resolved included the validity and

enforceability of the premarital agreement; the validity

of an alleged rescission of that premarital agreement;

a determination of alimony; an equitable division of

marital property; and attorney’s fees and guardian ad

litem fees. The resolution of those issues could not

‘‘affect the minor children’s right . . . for parental

maintenance’’; id., 267; and extending the impact of the

parent’s resolution of nonsupport issues would violate

the statutory prohibition against arbitrating child sup-

port. Furthermore, it would be inconsistent with our

concerns for the best interest of children, an ideal that

permeates our statutes and decisional law, to permit

issues related to child support to be resolved conclu-

sively in arbitration, a nonjudicial forum outside the

control of our courts. See, e.g., Masters v. Masters, 201

Conn. 50, 64–65, 513 A.2d 104 (1986) (‘‘the ultimate

responsibility for determining and protecting the best

interests of children in family disputes rests with the

trial court and not with the parties to a dissolution

action’’).17

There is no doubt that ‘‘[t]he courts of this state

encourage arbitration as a means of alternative dispute

resolution . . . .’’ Scinto v. Sosin, 51 Conn. App. 222,

227, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963,

724 A.2d 1125 (1999). They have ‘‘for many years whole-

heartedly endorsed arbitration as an effective alterna-

tive method of settling disputes intended to avoid the

formalities, delay, expense and vexation of ordinary

litigation. . . . When arbitration is created by contract,

we recognize that its autonomy can only be preserved

by minimal judicial intervention. (Internal quotation

marks omitted.) Stutz v. Shepard, 279 Conn. 115, 124,

901 A.2d 33 (2006). ‘‘The parties themselves, by the

agreement of the submission, define the powers of the

arbitrator. . . . The submission constitutes the charter

of the entire arbitration proceedings and defines and

limits the issues to be decided.’’ (Internal quotation

marks omitted.) Naek Construction Co. v. Wilcox Exca-

vating Construction Co., 52 Conn. App. 367, 370, 726

A.2d 653 (1999). ‘‘[If] the submission does not otherwise

state, the arbitrators are empowered to decide factual

and legal questions and an award cannot be vacated

on the grounds that . . . the interpretation of the

agreement by the arbitrators was erroneous. . . .

[Generally], courts will not review the evidence consid-

ered by the arbitrators nor will they review the award

for errors of law or fact.’’ (Internal quotation marks

omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn.

72, 80, 881 A.2d 139 (2005).

Nevertheless, although binding arbitration may be

utilized to resolve many types of issues arising in the

course of civil litigation, including in a marital dissolu-

tion action, the legislature concluded, as a matter of

public policy, that issues involving custody, visitation,

and child support must be resolved only by a court.

This court previously has indicated that if a court has

a statutorily mandated duty to decide an issue, it would

be an improper delegation of judicial authority to permit

that issue to be resolved through binding arbitration,

particularly because of the limited opportunity for judi-

cial review of arbitration awards. See Nashid v.

Andrawis, 83 Conn. App. 115, 121–22, 847 A.2d 1098

(plain error to permit future disputes regarding custody

and visitation to be decided in arbitration), cert. denied,

270 Conn. 912, 853 A.2d 528 (2004).

We simply are not persuaded that in an adjudication

of child support following binding arbitration, a court

must give preclusive effect to extrajudicial factual find-

ings, particularly if the correctness of those findings is

so integral to a resolution of an issue expressly excluded

from arbitration in accordance with both § 52-408 and

the parties’ arbitration agreement. In other words, any

findings the arbitrator made in disposing of the claims

submitted had no effect on the court’s duty to make an

independent determination of the parties’ child support

obligation, unfettered by the findings of the arbitrator.

Because a determination as to the proper amount of

child support hinges almost entirely on a correct calcu-

lation of the parties’ income, and it is the stated policy

of this state that issues of child support be decided only

by the court, it would run contrary to that policy to

require the court to defer to findings of income made

by an arbitrator, who was not tasked with considering

the parties’ incomes for that purpose.18 Said another

way, the court’s reliance on income findings of the

arbitrator in determining child support obligations

would constitute an impermissible delegation of judicial

authority, something we previously have concluded

amounts to plain error. See id.

We conclude that, although the court incorporated

the arbitration award by reference into the dissolution

judgment, it does not follow that the court was bound

by every factual finding contained in the award in

determining the defendant’s child support obligation.

In exercising its important and independent statutory

obligation to determine child support—an issue

important not only to the parties but to the children

meant to benefit from such orders—the court was not

legally bound by the arbitrator’s factual findings regard-

ing gross income. To hold otherwise could undermine

the court’s function to ensure that children receive an

adequate level of support, and that concern outweighs

any policy cautioning against judicial interference with

arbitration. Accordingly, we reject the defendant’s

claim that the court was bound by the factual finding of

the arbitrator regarding the defendant’s gross income.

II

The defendant next claims that even if the court was

not legally bound by the arbitrator’s finding with respect

to his gross income, the court’s finding that the defen-

dant earned $400,000 in gross income from employment

was clearly erroneous. The plaintiff counters that the

court’s finding was correct and fully supported by the

record. Because there is evidence in the record that

supports the court’s finding, we conclude that the find-

ing was not clearly erroneous.

‘‘A finding of fact is clearly erroneous when there is

no evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.

. . . Because it is the trial court’s function to weigh

the evidence and determine credibility, we give great

deference to its findings. . . . In reviewing factual find-

ings, [w]e do not examine the record to determine

whether the [court] could have reached a conclusion

other than the one reached. . . . Instead, we make

every reasonable presumption . . . in favor of the trial

court’s ruling.’’ (Emphasis added; internal quotation

marks omitted.) Hammel v. Hammel, 158 Conn. App.

827, 832–33, 120 A.3d 1259 (2015).

The defendant argues that the record contains no

evidence that would support the court’s finding that he

earned $400,000 in gross income from his employment,

and, therefore, the finding is clearly erroneous. He indi-

cates that his financial affidavit submitted into evidence

listed his gross income earned from employment as

$360,000. He further notes that his 2015 income tax

return, which was submitted into evidence, states that

he earned $170,541 in gross income from employment.

As our standard of review makes clear, however, the

existence of evidence that is contrary to the court’s

finding is not dispositive of whether the court’s finding

is clearly erroneous.

The trial court, in its role as the trier of fact, was not

bound by the financial numbers contained in either

party’s financial affidavits and was free to assess the

credibility of the parties with respect to the reliability

of evidence proffered to establish income. See Olson

v. Olson, 71 Conn. App. 826, 834, 804 A.2d 851 (2002).

The court was free to make findings that differed from

the parties’ positions, provided that evidence existed

to support such findings. Here, the court expressly indi-

cated in its memorandum of decision that it found the

evidence presented by the defendant regarding his

income not credible and untruthful. See Billington v.

Billington, 27 Conn. App. 466, 469, 606 A.2d 737 (con-

tours of determination of credibility uniquely shaped

by trial court and not reviewable on appeal), cert.

denied, 224 Conn. 906, 615 A.2d 1047 (1992). Moreover,

contrary to the defendant’s assertion on appeal, our

review of the record reveals evidence from which the

court reasonably could have determined that the defen-

dant’s gross income from employment was at least

$400,000.19

First, the plaintiff testified during the hearing that

she was aware of the defendant’s earnings during the

course of their marriage. She testified that he had three

sources of income from employment: his medical prac-

tice, consulting for medical companies, and teaching.

In part, her knowledge of his earnings came from her

having worked as the business administrator for the

defendant’s medical practice, in which capacity she had

access to payroll documents. She testified that the

defendant’s salary was $16,000 every two weeks, which

amounts to a yearly income from employment of

$416,000.

Second, the plaintiff offered into evidence a con-

sumer credit application that the defendant completed

in connection with a lease he obtained in March, 2016,

for a new BMW automobile. On the application, the

defendant disclosed in the employment section of the

application that his employer’s name was Dr. K Ser-

vices, P.C., and that his gross annual income from

employment was $400,000.

Given that the true measure of the defendant’s

income was highly contested, and that the trial court

found that the defendant’s presentation of his finances,

including income, was misleading, the court relied on

other evidence in the record. There was certainly evi-

dence, including the defendant’s admission on the auto-

mobile application, that his income from employment

was $400,000. Because the finding is supported by evi-

dence and we are not left with any firm conviction that

a mistake was made, we conclude that the trial court’s

finding was not clearly erroneous.

III

The defendant’s third claim is that, in calculating

his gross income, the court improperly determined the

amount of gross rental income he received from prop-

erty awarded to him as part of the division of marital

assets. We are not persuaded.

‘‘The [child support] guidelines worksheet is based

on net income; weekly gross income is listed on the

first line on the worksheet, and the subsequent lines

list various deductions, including federal income tax

withheld and social security tax. . . . The guidelines

are used by the court to determine a presumptive child

support payment, which is to be deviated from only

under extraordinary circumstances. . . . Our regula-

tions define ‘gross income’ as ‘the average weekly

earned and unearned income from all sources before

deductions, including but not limited to the items listed

in subparagraph (A) of this subdivision, but excluding

the items listed in subparagraph (B) of this subdivision.’’

(Citation omitted; emphasis added.) Giordano v. Gior-

dano, 153 Conn. App. 343, 356–57, 101 A.3d 327 (2014),

citing Regs., Conn. State Agencies § 46b-215a-1 (11).

One item expressly included in subparagraph (A) is

‘‘rental income after deduction of reasonable and neces-

sary expenses . . . .’’ Regs., Conn. State Agencies

§ 46b-215a-1 (11) (A) (xiv). Any challenge to the court’s

factual findings regarding rental income is subject to

our clearly erroneous standard of review.

Although the defendant acknowledges that the child

support guidelines permit the inclusion of rental income

in the calculation of gross income, he argues that the

court failed to ‘‘delineate how the court arrived at the

figure of $160,637.’’ He also argues that ‘‘[n]owhere in

the record can there be found any indication of how

the court arrived at the figure of $160,637 or whether

the court deducted reasonable and necessary expenses

from any such rental income.’’ (Emphasis omitted.) Fur-

ther, the defendant notes that the court’s rental income

figure matches the total found in a chart that the plaintiff

prepared and attached to her posttrial brief, which, as

the defendant correctly maintains, was never submitted

into evidence during the hearing.

The court did not provide a detailed explanation of

how it arrived at its calculation of rental income. After

it set forth its findings regarding the defendant’s total

gross income, however, it did indicate the evidentiary

basis for its finding, citing to the plaintiff’s exhibits 7

and 13, and the defendant’s testimony of May 25 and

June 29, 2016. Exhibit 13 is a copy of the defendant’s

2015 individual tax return. Schedule E of that return

contains details of the income and expenses associated

with the rental properties awarded to the defendant in

the judgment of dissolution. Although the defendant

maintains that the court improperly utilized the rental

income chart that the plaintiff prepared and attached

to her posttrial brief, which was never made an exhibit

at the hearing, the chart references the defendant’s 2015

tax return, which was an exhibit, and the numbers con-

tained in the chart merely reflect figures contained in

that tax return. The figures from the 2015 tax return,

as used on the plaintiff’s chart, were easily verified by

the court by comparing the chart’s figures with those

on the tax return. Accordingly, we conclude that a suffi-

cient evidentiary basis for the court’s rental income

finding exists.

Finally, the defendant argues that both the plaintiff’s

chart and the court’s conclusion regarding rental

income do not comport with the evidence presented

because they disregard and omit from their calculation

two properties that generated substantial losses.

According to the defendant, if those properties were

considered, his net rental income would have been sub-

stantially lower.

The plaintiff argues, however, that those properties

were sold prior to the child support hearing, and thus

any effect that the losses from those properties had on

total rental income in 2015 were properly disregarded

in calculating future income for the purposes of

determining child support. The defendant does not dis-

pute that assertion in his reply brief and fails to explain

why it would be improper for the court to consider only

properties that would generate income in the future in

calculating income on which to base his prospective

child support obligations. On the basis of our review,

we conclude that the court’s calculation and inclusion

of rental income in its determination of the defendant’s

total gross income was not clearly erroneous.

IV

In the defendant’s fourth claim, he asserts that the

court improperly failed to take into account his payment

of life insurance premiums in calculating his gross

income. The plaintiff responds that the defendant failed

to provide the court with information regarding life

insurance premiums and that the court properly

accounted for all insurance premium payments brought

to the attention of the court and reflected in the record.

We agree with the plaintiff.

The following additional facts are relevant to this

claim. The defendant testified that he maintained two

life insurance policies that provided a total of $4,000,000

in coverage.20 According to the defendant, the premiums

for those policies were paid by his medical practice, and

those payments were attributable to him as additional

income. The life insurance policies are listed on the

defendant’s financial affidavit, which also includes as

a personal expense his monthly life insurance premiums

of $1053. The premium payment amounts are not bro-

ken out per policy. The child support guidelines work-

sheet submitted by the defendant to the court did not

include any deduction for life insurance premiums, pre-

sumably because the defendant objected to the plain-

tiff’s claim for relief requesting that the court order him

to maintain $2,000,000 in life insurance for the benefit

of the children. He argued that he would not be able

to maintain his existing policies once they expired and

that it would be financially unfeasible or overly burden-

some for him to obtain new policies as a sixty-four year

old man.

The court made the following order with respect to

life insurance: ‘‘The defendant shall maintain insurance

on his life in the amount of $2,000,000, naming the three

minor children as equal beneficiaries, for as long as he

has a child support obligation to the twins.’’ The court’s

calculation of net income for the purposes of child

support, which is set forth on the court’s child support

guidelines worksheet attached as the court’s exhibit 1

to the court’s memorandum of decision, deducts $406

from the defendant’s gross weekly income for premi-

ums paid for the children’s medical and dental insur-

ance. Although the worksheet also contains a line for

deducting the premium paid for ‘‘court-ordered life

insurance for benefit of child,’’ the court indicated $0

on that line.

The defendant stood to benefit from any reduction in

his gross income attributable to life insurance premium

payments. As such, he bore the burden to produce what-

ever evidence was necessary for the court to calculate

this deduction. Our review of the record, however,

including the exhibits and testimony offered during the

hearing, show that the defendant never provided the

court with a breakdown of his existing premium pay-

ments for the $4,000,000 in life insurance coverage he

disclosed on his financial affidavits, including how the

amount of premiums paid for those policies was appli-

cable to the court’s calculation of life insurance neces-

sary to secure the defendant’s child support obligation,

an amount of insurance that was significantly less.

Although he indicated on his financial affidavit a

monthly personal expense for life insurance of $1053,

he lists several insurance policies with no details of the

policies’ beneficiaries or premium payments per policy.

Because the court had no evidentiary basis from which

to calculate a credit against his income for a $2,000,000

life insurance policy benefiting the children, we cannot

conclude that the court’s failure to include a credit in

calculating net income was a clear abuse of discretion.

V

The defendant next claims that the court improperly

failed to explain the basis for exercising its discretion

to order child support in an amount that exceeded the

child support guidelines’ presumptive minimum. The

question presented by this claim is whether the court

is required to articulate why it chose the specific

amount of child support that it did if that amount falls

within the range of the minimum and maximum pre-

sumptive support amounts. We conclude that there is

no such requirement and, accordingly, reject the defen-

dant’s claim.

‘‘The question of whether, and to what extent, the

child support guidelines apply . . . is a question of law

over which this court should exercise plenary review.’’

Misthopoulos v. Misthopoulos, 297 Conn. 358, 367, 999

A.2d 721 (2010). Further, whether the court is legally

obligated to articulate the basis for a child support

award also poses a legal question that invokes our de

novo review. ‘‘It has long been established that the

guidelines, as promulgated by a commission empow-

ered pursuant to legislation enacted in 1989; see Public

Acts 1989, No. 89-203; were intended to substantially

[circumscribe] the traditionally broad judicial discre-

tion of the court in matters of child support.’’ (Internal

quotation marks omitted.) Ray v. Ray, 177 Conn. App.

544, 563, 173 A.3d 464 (2017).

‘‘[T]he . . . guidelines shall be considered in all

determinations of child support amounts within the

state and . . . the guidelines consist of the Schedule of

Basic Child Support Obligations as well as the principles

and procedures set forth [therein].’’ (Emphasis omitted;

internal quotation marks omitted.) Id., 563–64. Addition-

ally, ‘‘[t]he 2015 guidelines codified developments in

recent cases decided by the Supreme Court and this

court regarding the consideration of child support order

amounts whenever the parties’ combined net weekly

income exceeds $4000.’’ Id., 564; see also Child Support

and Arrearage Guidelines, supra, preamble, § (e) (5),

p. ix.

‘‘[I]n awarding child support, a court must consider

and apply statutory child support and arrearage guide-

lines unless application of the guidelines is inequitable

or inappropriate under the circumstances.’’ Lusa v.

Grunberg, 101 Conn. App. 739, 741, 923 A.2d 795 (2007).

‘‘To enter child support orders that deviate from the

presumptive support amount, the court must make spe-

cific findings on the record to explain its reasons for

doing so.’’ Id. ‘‘[A]ny deviation from the schedule or the

principles on which the guidelines are based must be

accompanied by the court’s explanation as to why the

guidelines are inequitable or inappropriate and why the

deviation is necessary to meet the needs of the child.’’

Maturo v. Maturo, supra, 296 Conn. 95–96.

‘‘In Maturo, [our Supreme Court] . . . concluded

that when a family’s combined net weekly income

exceeds $4000, the court should treat the percentage

set forth in the schedule at the highest income level as

the presumptive ceiling on the child support obligation,

subject to rebuttal by application of the deviation crite-

ria enumerated in the guidelines, as well as the statutory

factors described in § 46b-84 (d).’’ (Internal quotation

marks omitted.) Misthopoulos v. Misthopoulos, supra,

297 Conn. 369–70. Our Supreme Court later clarified

that ‘‘as long as the child support award is derived from

a total support obligation within this range—between

the presumptive minimum dollar amount and the pre-

sumptive maximum percentage of net income—a find-

ing in support of a deviation is not necessary.’’

(Emphasis added.) Dowling v. Szymczak, 309 Conn.

390, 402, 72 A.3d 1 (2013).

The child support guidelines provide that when the

combined weekly net income of the parents is $4000,

the presumptive minimum of child support for three

children is $824 a week. As indicated previously, the

maximum is calculated by multiplying the combined

weekly income by the applicable percentage, which in

this case is 20.61 percent. Regs., Conn. State Agencies

§ 46b-215a-2c. Here, there is no dispute that the amount

of support ordered by the court fell within the range

between the presumptive minimum and maximum

amounts permitted under the child support guidelines.

Because the court did not deviate from the guidelines,

the court was not required to articulate statutory devia-

tion criteria.

In his appellate brief, the defendant relies on language

in § 46b-215a-2c that provides as follows: ‘‘When the

parents’ combined net weekly income exceeds $4000,

child support awards shall be determined on a case-by-

case basis, consistent with statutory criteria, including

that which is described in subsection (d) of section

46b-84 of the Connecticut General Statutes.’’ Regs.,

Conn. State Agencies § 46b-215a-2c (a) (2). General

Statutes § 46b-84 (d) provides that ‘‘[i]n 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, earn-

ing capacity, amount and sources of income, estate,

vocational skills and employability of each of the par-

ents, and the age, health, station, occupation, educa-

tional status and expectation, amount and sources of

income, vocational skills, employability, estate and

needs of the child.’’ The defendant reads the regulatory

language as mandating that a court articulate why it

is ordering any amount falling within the presumptive

minimum and maximum support provided in the guide-

lines and notes that ‘‘[n]owhere in the memorandum of

decision does the court indicate that it considered the

statutory criteria of [§ 46b-84 (d)] in deciding where

within $824 per week . . . and $1580 per week . . .

child support should fall.’’

Although the statutory language requires that child

support awards shall be consistent with statutory crite-

ria, it does not ‘‘mandate that a court articulate why’’

it is ordering an amount consistent with the criteria.

‘‘In accordance with the statutory directives set forth

in General Statutes § 46b-215b (a), the guidelines

emphasize that the support amounts calculated there-

under are the correct amounts to be ordered by the

court unless rebutted by a specific finding on the record

that such an amount would be inequitable or inappropri-

ate.’’ Maturo v. Maturo, supra, 296 Conn. 92. In this

case, the child support award was within the range

established by the guidelines, and the defendant made

no argument that the amount ordered was inequitable

or inappropriate. Further, there is nothing in the record

from which we can conclude that the court’s decision

was not made with consideration of the criteria set

forth in § 46b-84 (d).

In making its orders and findings of fact, the court

conducted an extensive evidentiary hearing and

reviewed the parties’ various claims for relief, memo-

randa in support thereof, trial briefs, replies, evidence,

testimony, relevant rules, statutory authority, case law,

and the arguments of counsel. Notably, these findings

pertained to the health and educational needs of the

children, as well as the parties’ ages, health, educational

status, employability, earning capacities, and sources

of income. The court calculated that, in this case, the

maximum amount of child support per week was $1564.

The actual amount of child support ordered by the court

was $1500 per week. Because the child support order

was consistent with statutory criteria and within the

range between minimum and maximum support

amounts established by the guidelines, we find no abuse

of discretion in the court’s ruling. Further, because no

deviation from the guidelines occurred, the court was

not required to provide any additional explanation for

its decision. In sum, the trial court did not abuse its

discretion in rendering its December 7, 2016 child sup-

port orders.

VI

We turn next to those claims challenging the court’s

order requiring the defendant to make a lump sum pay-

ment of $91,000 to the plaintiff to satisfy a child support

arrearage that resulted from the court’s December 7,

2016 order making his child support obligation retroac-

tive to the date of dissolution. The defendant first claims

that in calculating the $91,000 child support arrearage,

the court failed to credit properly the voluntary child

support payments that he made to the plaintiff during

the pendency of the child support proceedings. Specifi-

cally, the defendant maintains that the court was obli-

gated to subtract the amount of the voluntary payments

directly from the amount of the arrearage, rather than

providing him with credit for the voluntary payments

by temporarily reducing his child support obligations

for a period moving forward. The plaintiff responds

that the defendant’s claim is moot because the court

accounted for and fully credited the defendant for all

child support voluntarily paid by permitting the defen-

dant to reduce his future child support obligations pro-

portionally over the first year, and the defendant availed

himself of that remedy. The plaintiff further argues that

even if the claim is not moot, it fails on its merits

because the court acted well within its discretion in

crafting the remedy provided. We agree with the plain-

tiff that because the defendant reduced his weekly child

support obligation in accordance with the court’s order

and, thus, has now received full credit for his voluntary

child support payments, this court cannot provide the

defendant with any practical relief by reviewing this

claim. Accordingly, we dismiss the claim as moot.

‘‘Mootness implicates [the] court’s subject matter

jurisdiction and is thus a threshold matter for us to

resolve . . . . It is a well-settled general rule that the

existence of an actual controversy is an essential requi-

site to appellate jurisdiction; it is not the province of

appellate courts to decide moot questions, discon-

nected from the granting of actual relief or from the

determination of which no practical relief can follow.

. . . Because mootness implicates subject matter juris-

diction, it presents a question of law over which our

review is plenary.’’ (Internal quotation marks omitted.)

Schull v. Schull, 163 Conn. App. 83, 98–99, 134 A.3d

686, cert. denied, 320 Conn. 930, 133 A.3d 461 (2016).

The defendant does not challenge the total amount

of the arrearage ordered by the court, having stipulated

that the amount owed was $91,000. He also raises no

claim that he was entitled to a greater amount of credit

on the basis of the voluntary payments made during

the pendency of the child support proceedings. It is

simply the form of the credit that the defendant takes

issue with, maintaining that the court should have

applied his voluntary child support payments directly

against the arrearage and arguing that most courts that

have addressed similar situations have applied volun-

tary payments to reduce directly any arrearage.21 Never-

theless, because the defendant has now received full

credit for his voluntary payments, there is no practical

relief that could flow from our determination of whether

he should have received that credit as an offset to the

lump sum payment rather than as a reduction in his

future child support payments. Even if we were to deter-

mine that the court abused its discretion in the manner

in which it credited the voluntary payments, we cannot

formulate a remedy that would effectively rewind the

clock in this case. Any decision would be purely aca-

demic at this point because it would not alter the

existing status quo, namely, that the defendant has

received full credit for those voluntary payments he

made. This claim, accordingly, is dismissed as moot.

VII

The defendant next claims that the court improperly

ordered him to pay a lump sum to satisfy the child

support arrearage rather than permitting him to satisfy

that arrearage on a weekly basis, as contemplated by the

child support arrearage guidelines. The plaintiff argues

that the defendant’s claim is frivolous because, although

the guidelines prescribe the manner in which a court

generally must calculate periodic payment of a child

support arrearage, the court nevertheless retains discre-

tion to order a lump sum payment. We agree with

the plaintiff.

Whether the court was required to utilize the arrear-

age calculation formula set forth in the child support

arrearage guidelines is a legal question over which our

review is plenary. Although the preamble to the child

support and arrearage guidelines is not part of the offi-

cial regulations, and thus not binding on this court, we

find it persuasive in resolving the defendant’s claim.

See Maturo v. Maturo, supra, 296 Conn. 92–93 (noting

preamble is not part of regulations but is intended to

assist in their interpretation). Specifically, section (i)

of the preamble discusses the arrearage guidelines and

their intended applicability, providing in relevant part:

‘‘[General Statutes § 46b-215a] requires the develop-

ment of guidelines for orders of payment on arrearages.

Such guidelines are to be based on the obligor’s ability

to pay. The commission interprets the statute to apply

only to the determination of periodic payments, and so

does not address in the regulations the determination

of lump sum payments, which determination remains

subject to the discretion of the judge or family support

magistrate.’’ Child Support and Arrearage Guidelines,

supra, preamble, § (i), p. xix. This same position is also

reflected in the regulations themselves. Subsection (a)

of 46b-215a-3a, which governs the scope of the arrear-

age guidelines, provides in relevant part that the arrear-

age guidelines ‘‘shall be used to determine periodic

payments on child support arrearages . . . . The

determination of lump sum payments remains subject

to the discretion of the judge or family support magis-

trate, in accordance with existing law.’’ Thus, the guide-

lines have no applicability to orders requiring lump sum

payment of arrearages, nor do the guidelines in any

way curtail a trial court’s discretion to order a lump

sum payment, provided that the court determines that

the obligor has the ability to comply with the order.

General Statutes § 46b-215a (a) (‘‘orders of payment on

any arrearage and past due support shall be based on

. . . the obligor’s ability to pay’’).

In the present case, the court articulated that it

ordered the $91,000 lump sum arrearage payment in

the present case because it determined that the defen-

dant had the ability to pay, given his current income

and other finances, including the court’s release to the

defendant of $100,000 held in escrow at the time it

issued its child support orders. The court indicated

that it had released the funds specifically to aid the

defendant in meeting his child support obligations. In

short, the defendant has failed to demonstrate that the

arrearage guidelines were applicable to the lump sum

order or that the court abused its discretion in ordering

a lump sum rather than periodic payments. Accordingly,

this claim fails.

VIII

Finally, the defendant claims that rather than having

denied the plaintiff’s motion for contempt on its merits,

which resulted in the remedial order requiring the

defendant to pay the arrearage that arose out of the

court’s retroactive order of child support, the court

should have dismissed the plaintiff’s motion for con-

tempt in its entirety. According to the defendant,

because the court’s child support order did not contain

any express calculation of an arrearage owed by the

defendant as a result of the child support order’s retro-

activity or an order directing the defendant to pay such

an arrearage by a date certain, there was no factual

basis for a motion for contempt. The defendant asserts

on appeal, therefore, that the plaintiff’s motion for con-

tempt failed to state a proper claim for contempt and

also failed to comply with the specific requirements of

Practice Book § 25-27.22 Because the defendant’s spe-

cific claim that the trial court should have dismissed

the motion for contempt was not raised before the trial

court, we decline to review it for the first time on appeal.

In the defendant’s objection to the motion for con-

tempt, he challenged the merits of the motion by arguing

that he had not violated any clear and unambiguous

order because the court never stated precisely when

or how the arrearage should be paid. The defendant’s

objection asked the trial court to deny the motion for

contempt, which the court did, apparently for the rea-

sons stated by the defendant. The defendant never

asked the court to strike or dismiss the motion, either

on the basis of the motion’s legal or factual insufficienc-

ies or on the ground that the motion did not comply with

our rules of practice. As we have stated on numerous

occasions, we will not entertain a claim or legal theory

raised for the first time on appeal. ‘‘[A] party cannot

present a case to the trial court on one theory and then

seek appellate relief on a different one . . . . The the-

ory upon which a case is tried in the trial court cannot

be changed on review . . . [much like] an issue not

presented to or considered by the trial court cannot be

raised for the first time on review.’’ (Citation omitted;

internal quotation marks omitted.) Corrarino v. Corrar-

ino, 121 Conn. App. 22, 30, 993 A.2d 486 (2010). We

therefore decline to review this claim.

The judgments are affirmed.

In this opinion the other judges concurred.

* October 23, 2018, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1

Specifically, the arbitrator’s award stated in relevant part: ‘‘The issues

of custody, access, child support, maintenance and cost of medical insurance

for the minor children and unreimbursed medical expenses are reserved to

the Connecticut Superior Court.’’

2

On June 19, 2017, this court granted the defendant’s motion to consolidate

his two appeals in accordance with Practice Book § 61-7 (b) (3).

3

The defendant also asserted that the court had failed to deduct health

insurance premiums but, in his reply brief, concedes to the contrary, with-

drawing that aspect of his claim.

4

We rely on those facts set forth by the court in its memoranda of decision

and those that are undisputed in the record.

5

The parties have twin daughters who were born in May, 2003, and a

younger daughter who was born in February, 2006.

6

At that time, the parties also submitted a final custody and parenting

plan that was made an order of the court. Pursuant to the parenting plan,

the parties would have joint legal custody of their minor children, and the

plaintiff would have primary physical custody subject to periodic visitations

with the defendant.

7

The arbitrator stated in relevant part: ‘‘To leave the plaintiff, who has

no experience in a competitive workplace after thirteen years, with no

assets, an alimony award of five years, which is unrelated to either the

plaintiff’s needs or the defendant’s income, and responsibility for three

children, one of whom has special needs, is more than unfair or onerous,

it is unconscionable.’’

8

In response to requests by the parties, the arbitrator later issued a

clarification of her award, the substance of which is not relevant to the

issues on appeal.

9

In its dissolution judgment, the court also reserved jurisdiction over the

issue of postmajority educational support.

10

In his posthearing brief, the defendant argued that the court should

conclude that his share of the presumptive child support amount, as calcu-

lated pursuant to the guidelines, was $727 per week. The plaintiff, in her

posthearing brief, argued that the defendant’s share of presumptive child

support under the guidelines was $1560 per week, but she sought an upward

deviation to $2028 per week due, in part, to her claim that all three children

had special needs.

11

We note that throughout the evidentiary hearing on the issue of child

support, both parties presented evidence pertaining to the defendant’s gross

income. Such evidence would have been unnecessary if the court legally

was bound to credit the factual findings of gross income contained in the

arbitrator’s award. The defendant, however, never asserted such a position

during the hearing on child support. Although the defendant’s counsel raised

tentative objections during the hearing indicating that the defendant’s earn-

ing capacity had been determined by the arbitrator, at no point did the

defendant directly state to the trial court that he believed that the court

legally was bound by the arbitrator’s factual findings of income in resolving

the issue of child support.

To the contrary, in his posthearing brief, instead of arguing that the

arbitrator’s finding regarding the defendant’s gross income was binding on

the court, he argued that the arbitrator had overstated his gross income

and asked the trial court to make its own finding for the purpose of calculat-

ing child support. Presumably, if the finding of the arbitrator was binding

on the court, as the defendant now argues on appeal, the trial court would

have had no more authority to find a lower amount of income than it had

to find a higher amount. As we have expressed on a number of occasions,

we generally disfavor permitting an appellant to take one legal position at

trial and then take a contradictory position on appeal. ‘‘[O]rdinarily appellate

review is not available to a party who follows one strategic path at trial

and another on appeal, when the original strategy does not produce the

desired result. . . . To allow the [party] to seek reversal now that his trial

strategy has failed would amount to allowing him to induce potentially

harmful error, and then ambush the [opposing party and the court] with

that claim on appeal.’’ (Internal quotation marks omitted.) Nweeia v. Nweeia,

142 Conn. App. 613, 620, 64 A.3d 1251 (2013).

Furthermore, we note that the doctrine of collateral estoppel, i.e., issue

preclusion, ‘‘is neither statutorily nor constitutionally mandated. The doc-

trine, rather, is a judicially created rule of reason that is enforced on public

policy grounds.’’ (Internal quotation marks omitted.) Cumberland Farms,

Inc. v. Groton, 262 Conn. 45, 58–59, 808 A.2d 1107 (2002). In order to take

advantage defensively of the doctrine, it ordinarily should be pleaded or

otherwise brought to the attention of the court. See, e.g., Practice Book

§ 10-50. The defendant made no assertion regarding the binding nature of

the arbitrator’s finding in the present case until the postjudgment motion

to reargue, which was filed after the court had made an independent finding

regarding gross income that did not favor the defendant. Nevertheless,

because the plaintiff has not argued that the defendant either forfeited or

waived his right to challenge the preclusive nature of the arbitrator’s factual

finding regarding gross income, and the issue was raised by the defendant

to the trial court in his motion to reargue the child support order and

implicitly rejected by the trial court, we will review the claim.

12

As part of its December 7, 2016 orders, the court ordered $100,000 from

the sale of the marital home that was being held in escrow at the time by

the defendant’s attorney as security released to the defendant within two

business days.

13

The trial court later issued an articulation setting forth the factual and

legal bases for its January 3, 2017 order. In its articulation, the court stated

that ‘‘[t]he [defendant’s] testimony and evidence regarding his sources and

amount of income, debts, assets, and liabilities was not credible,’’ and ‘‘[t]he

information on the [defendant’s] sworn financial affidavits . . . regarding

his earnings and expenses was not truthful.’’ (Citations omitted.) The court

also stated that it had released the $100,000 in escrowed funds to the defen-

dant in order to give him ‘‘additional funds’’ from which to pay the child

support arrearage that arose as a result of the court’s December 7, 2016

support orders and to meet his child support obligations moving forward.

(Emphasis omitted.) The court noted that ‘‘despite having the financial

means and access to liquid pecuniary resources, [the defendant had] paid

$0.00 toward the $91,000 arrearage he does not dispute existed.’’ (Emphasis

in original.) Regarding the legal bases for its decision, the court indicated

that it considered whether the defendant had the ability to pay by the date

specified in the court’s order and determined that he did, on the basis of

his actual employment income, his earning capacity, liquid assets, equity in

several real estate interests and investments, and retirement funds. The

court further stated that it had relied on General Statutes § 46b-84 and § 46b-

215a-3a of the child support and arrearage guidelines effective July 1, 2015.

14

We note that other states have adopted statutes permitting the arbitra-

tion of marital dissolution actions, including issues of custody and child

support. As part of those statutes, however, such states have provided

for more robust judicial oversight of arbitration awards than ordinarily is

available under existing law. See, e.g., Harvey v. Harvey, 470 Mich. 186,

193–94, 680 N.W.2d 835 (2004) (court had authority under statute to modify

arbitrator’s award to ensure best interests of children). The absence of

such explicit oversight in § 52-408 is additional evidence that our legislature

intended that all issues pertaining to child support and custody be reserved

to the Superior Court.

15

Similar language also was added to General Statutes § 46b-66, which

now provides in relevant part: ‘‘The provisions of [General Statutes § 52-

408 et seq.] shall be applicable to any agreement to arbitrate in an action

for dissolution of marriage under this chapter, provided (1) an arbitration

pursuant to such agreement may proceed only after the court has made a

thorough inquiry and is satisfied that (A) each party entered into such

agreement voluntarily and without coercion, and (B) such agreement is fair

and equitable under the circumstances, and (2) such agreement and an

arbitration pursuant to such agreement shall not include issues related

to child support, visitation and custody . . . .’’ (Emphasis added.) General

Statutes § 46b-66 (c).

16

Having reviewed the legislative history of P.A. 05-258, we note that the

vast majority of public comments, mostly from members of the bar, sup-

ported adoption of the bill, many citing favorably to the bill’s exclusion of

issues related to child support, custody, and visitation because of the need

for ‘‘careful supervision of those issues’’ by the court and the ‘‘state’s special

interest’’ in child support.

In support of the act, then Senator Andrew J. McDonald stated: ‘‘Mr.

President, this bill is intended to make available to individuals who are

becoming involved in a dissolution action an opportunity to voluntarily enter

into an arbitration proceeding for the purposes of resolution of that disso-

lution.

‘‘Mr. President, the bill excludes from the scope of permissible arbitration

any consideration of custody or child support payments within the scope

of the arbitration referral.’’ (Emphasis added.) 48 S. Proc., Pt. 8, 2005 Sess.,

p. 2272.

17

To the extent that our Supreme Court in Masters v. Masters, supra, 201

Conn. 64–65, stated that some issues related to child support might be

arbitrable, we note that Masters was decided prior to the enactment of § 52-

408. Accordingly, that statement in Masters has been superseded by statute.

18

Our analytical approach finds support in the Restatement (Second) of

Judgments, which provides useful guidance regarding whether findings made

by arbitrators should be binding on courts in subsequent proceedings. Sec-

tion 84 of the Restatement (Second) provides that courts generally should

afford a valid and final arbitration award ‘‘the same effects under the rules

of res judicata, subject to the same exceptions and qualifications, as a

judgment of a court.’’ 2 Restatement (Second), Judgments § 84 (1), p. 286

(1982). Nevertheless, there are several notable exceptions to that rule. In

particular, § 84 (3) provides in relevant part: ‘‘A determination of an issue

in arbitration does not preclude relitigation of that issue if: (a) [a]ccording

preclusive effect to determination of the issue would be incompatible with

a legal policy or contractual provision that the tribunal in which the issue

subsequently arises be free to make an independent determination of the

issue in question . . . .’’ As provided in the commentary to § 84, ‘‘[i]t is

coherent to treat an arbitration proceeding as wholly self-contained, conclu-

sive as to the claims represented in the award but inoperative beyond them.’’

(Emphasis added.) Id., § 84, comment (c), p. 289. Further, ‘‘[a] dispute may

be governed by an arbitration agreement but also be subject to statutory

provisions for alternative or supplementary procedures. The conclusive

effect of an arbitration award is subordinate to such provisions.’’ Id., § 84,

comment (g), p. 291. The approach of the Restatement (Second) is consistent

with our Supreme Court’s instruction that ‘‘[t]he doctrines of preclusion

. . . should be flexible and must give way when their mechanical application

would frustrate other social policies based on values equally or more

important than the convenience afforded by finality in legal controversies.’’

(Internal quotation marks omitted.) Delahunty v. Massachusetts Mutual

Life Ins. Co., 236 Conn. 582, 591, 674 A.2d 1290 (1996); id., 592 (holding

application of res judicata to bar party from bringing postdissolution action

claiming damages for misconduct occurring during marriage would be inap-

propriate given competing policy considerations).

19

The trial court’s finding of $560,637 in gross income included as a base

component $400,000 in gross income from employment, which is the same

amount the arbitrator set forth as the defendant’s gross income. The arbitra-

tor’s award does not break down the components of that figure or indicate

whether her finding also incorporated rental income. Thus, the trial court’s

finding of $560,637 in total gross income, rather than being a wholly inconsis-

tent factual finding from that made by the arbitrator, might simply reflect

a more complete representation of the defendant’s total gross income. It is

not necessary, however, for us to resolve the apparent conflict between the

arbitrator’s finding and the trial court’s finding in order to conclude that

the trial court’s finding was supported by evidence in the record and, thus,

was not clearly erroneous.

20

The defendant also maintained a separate $500,000 life insurance policy

benefiting a former wife from an earlier marriage.

21

It is axiomatic that trial courts have ‘‘wide discretion and broad equitable

power to fashion relief in the infinite variety of circumstances which arise

out of the dissolution of a marriage.’’ (Internal quotation marks omitted.)

Parisi v. Parisi, 315 Conn. 370, 381, 107 A.3d 920 (2015). Even if we were

to conclude that the present claim was not moot and assumed for the sake

of argument that the defendant’s observation regarding credits for voluntary

payments is an accurate one, the mere fact that trial courts may more often

directly credit voluntary payments to reduce an arrearage is an insufficient

factual basis to support a conclusion that a court that elects not to follow

that procedure, as in the present case, has abused its discretion. The defen-

dant has cited no authority that would convince us otherwise.

22

Practice Book § 25-27 (a) provides: ‘‘Each motion for contempt must

state (1) the date and specific language of the order of the judicial authority

on which the motion is based; (2) the specific acts alleged to constitute the

contempt of that order, including the amount of any arrears claimed due

as of the date of the motion or a date specifically identified in the motion;

(3) the movant’s claims for relief for the contempt.’’