Borsey v. Borsey

Opinions

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of 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 Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the 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 an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ Borsey v. Borsey

JOHN BORSEY v. NICOLE BORSEY (AC 48779) Alvord, Moll and Wilson, Js.

The defendant, whose marriage to the plaintiff previously had been dissolved, appealed from the trial court’s judgment resolving, inter alia, her motion for modification of the plaintiff’s child support obligations. She claimed, inter alia, that the court improperly denied her claim for an educational support order pursuant to statute (§ 46b-56c) for the postsecondary education of the parties’ child. Held:

The trial court’s finding that the parties would not have contributed to the child’s postsecondary education if the family had remained intact was clearly erroneous, as it contradicted the court’s express finding that the plaintiff had agreed to give the child money to assist with her first year of college expenses, which satisfied the statutory threshold of § 46b-56c (c) for a court to enter an educational support order; accordingly, this court remanded the case to the trial court for consideration of all relevant circumstances pursu- ant to § 46b-56c (c), on the basis of the existing record, and a determination of whether to enter an educational support order.

(One judge concurring in a separate opinion)

The trial court abused its discretion in crediting prior child support payments the plaintiff made in determining any arrearage owed to the defendant follow- ing its modification of the plaintiff’s child support obligation, as the evidence reflected that the amount of the prior payments, although not ordered by the court, was calculated in accordance with the child support guidelines and, thus, the amount to which the child was entitled; accordingly, this court remanded the case to the trial court with direction to order the plaintiff to pay a deficit amount to the defendant.

Argued May 19—officially released August 18, 2026

Procedural History

Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon. Stanley Novak, judge trial referee, rendered judgment dissolving the parties’ marriage in accordance with a separation agreement; thereafter, the court, Cooper, J., denied the defendant’s postjudgment motion for modi- fication of child support and request for the issuance of an educational support order and rendered judgment Borsey v. Borsey

thereon, from which the defendant appealed to this court. Reversed in part; further proceedings. Nicole Borsey, self-represented, the appellant (defen- dant).

Opinion

ALVORD, J. In this postjudgment dissolution matter, the self-represented defendant, Nicole Borsey, appeals from the judgment of the trial court resolving her motion for modification of the child support obligation of the plaintiff, John Borsey.1 On appeal, the defendant claims that the court (1) made clearly erroneous factual findings with respect to the defendant’s claim for an educational support order pursuant to General Statutes § 46b-56c, and (2) improperly credited the plaintiff’s prior overpay- ments of child support in declining to order an arrearage following the court’s modification of his child support obligation.2 With respect to each of these claims, we reverse in part the judgment of the trial court. The following facts and procedural history are relevant to the defendant’s claims on appeal. The parties were married in September 2004 and had one child who was born in February 2006. The marriage of the parties, who were both self-represented at the time, was dissolved in September 2012. The court incorporated into the dissolu- tion judgment the terms the parties had included on the Judicial Branch form titled “Dissolution Agreement” and an attached written separation agreement, both dated September 25, 2012 (separation agreement). Under the terms of the separation agreement, the plaintiff was obli- gated to pay the defendant $200 weekly in child support, which amount the parties had represented followed the 1 The plaintiff did not file a brief in this court. On January 2, 2026, this court ordered that this appeal shall be considered on the basis of the defendant’s brief, the record, as defined by Practice Book § 60-4, and oral argument by the defendant. 2 The defendant raises three additional claims on appeal. See footnotes 4, 7 and 8 of this opinion. Borsey v. Borsey

child support guidelines. The parties checked the box stating that they “ask the court to reserve jurisdiction to determine whether a post-majority educational support order should issue and the terms of the order.” No motions were filed by either party for more than ten years following the dissolution judgment. On January 30, 2024, the defendant filed a motion for modification of child support. She represented in her motion that she was requesting the court to increase child support on the basis that her income had decreased while the plaintiff’s income had increased significantly. The defendant also noted that the plaintiff had agreed in writing to increase child support to $300 per week on September 11, 2016, but stopped paying that increased amount on April 8, 2019. The defendant sought an arrearage for the short- fall. The defendant also noted that the court had reserved jurisdiction over the issue of postmajority educational support and sought an order that the plaintiff contribute to postmajority educational expenses.3 The court, Cooper, J., held a hearing over three dates in 2024. During the three day hearing, the plaintiff was represented by counsel. On the third and final hearing date, the defendant was represented by counsel. Both par- ties testified and introduced documentary evidence.4 In an April 4, 2025 ruling, the court denied the defendant’s motion for modification of child support and request for 3 The defendant also sought an arrearage related to unreimbursed medical expenses, sole custody of the child, and an extension of child support. The parties reached an agreement with respect to unreimbursed medical expenses, and the defendant withdrew her requests for sole custody and an extension of child support. 4 The defendant claims on appeal that she was denied due process when the court “closed the evidence without clear notice” after the defendant, who was self-represented at the time, confirmed the assumption of the plaintiff’s counsel that she “rested [her] case.” The defendant contends that she did not understand the “procedural meaning of that state- ment.” Our review of the record reveals that the defendant retained counsel prior to the third hearing date. During the third hearing date, the court permitted the defendant to introduce evidence and present further testimony. Accordingly, we reject the defendant’s claim that she was denied the opportunity to present evidence. Borsey v. Borsey

issuance of an educational support order.5 This appeal followed. Additional procedural history will be set forth as necessary. I The defendant’s first claim on appeal is that the court improperly denied her claim for an educational support order pursuant to § 46b-56c. Specifically, the defendant contends that the court’s threshold finding that the par- ties would not have contributed to the child’s education if the family had remained intact is clearly erroneous. We agree with the defendant. The following additional procedural history is rel- evant to our resolution of this claim. The defendant testified that she had a series of conversations with the plaintiff, beginning in the summer of 2022, regarding college for the parties’ child. The defendant testified that, during a November 2023 meeting, the plaintiff agreed to postmajority educational support but stated that he would only give the funds directly to the child. The defendant testified that the parties met on March 12, 2024, at which time the plaintiff told the defendant that he was prepared to contribute $12,000 toward the child’s first year of college. The defendant testified that she followed up with a text message to the plaintiff asking him to pay the $12,000 amount and he did not respond. The defendant testified that the child planned to attend Fordham University. The plaintiff also testified regarding conversations sur- rounding college. He testified that he had a preliminary conversation with the child wherein he told her that he might be able to help her “along the lines of what [he] had paid for child support.” On cross-examination, the following colloquy occurred: “[The Defendant]: [I]s it true that on March 12, [2024] you came to our house, my house, at 5:30 p.m. to discuss what you were willing to contribute to college? 5 The defendant filed a motion to reargue, which the court denied. Borsey v. Borsey

*** “[The Plaintiff]: It sounds reasonable. . . . “[The Defendant]: Do you remember telling [the child] you would pay $12,000 for the first year only? “[The Plaintiff]: The first year [of] what? “[The Defendant]: College. . . . “[The Plaintiff]: So, what I remember saying to [the child], in our conversation, was that I was thinking along the lines, being able to support her and possibly being able to give her, to her, what I was giving for child support. That’s the way I remember it. “[The Defendant]: You don’t recall $12,000 for the first year? “[The Plaintiff]: Well, if you do the math.”6 In its order denying the request for an educational support order, the court stated: “The parties certainly agreed to reserve jurisdiction for the courts to determine whether to issue an educational support order . . . but they purposefully stopped short of agreeing to pay for their daughter’s college tuition. The parties testified that [the child] went to private elite schools throughout her entire K–12 education because she was awarded annual $50,000 scholarships. In fact, the defendant testified that [the child] received scholarships, in part, because she was ‘underprivileged.’ Neither party established a college savings account for [the child’s] benefit or made any other financial arrangement(s) in preparation for college. 6 The colloquy continued: “[The Defendant]: As you sit here today, are you stating you did not say you would give her $12,000 towards tuition on March 12, 2024? “[The Plaintiff]: I don’t recall the specific language. “[The Defendant]: Did you or did you not say $12,000 towards tuit- ion? . . . “[The Plaintiff]: Repeat the question, please. “[The Defendant]: Did you not say $12,000 towards tuition on March 12? “[The Plaintiff]: I don’t recall. I don’t recall what I said that long ago.” Borsey v. Borsey

“The plaintiff credibly testified that he never agreed to pay for college, and his testimony is consistent with his actions in that he did not participate in the college application and/or selection process, he declined invita- tions to visit schools with [the child], and he refused to complete and submit financial aid documents during the application process. The plaintiff[’s] and the defendant’s testimony was consistent on only one point—that the plaintiff agreed to give [the child] money ([approximately] $12,000) to assist for the first year. The plaintiff further testified that he is not a huge proponent of college, but he fully supports [the child’s] decision to attend except he is not willing to pay for it. Given the facts and cir- cumstances, this court cannot make a factual finding, based on the evidence presented, that the parties would have contributed to [the child’s] higher education if the family had remained intact.” (Citation omitted; emphasis added.) We first set forth applicable legal principles and our standard of review. Section 46b-56c provides in relevant part: “(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private career school for the purpose of attaining a bachelor’s or other undergraduate degree, or other appropriate vocational instruction. An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age. “(b) (1) On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree of dissolution, legal separation or annulment, and no educational support order may be entered there- after unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date. . . . Borsey v. Borsey

“(c) The court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private career school if the fam- ily were intact. After making such finding, the court, in determining whether to enter an educational sup- port order, shall consider all relevant circumstances, including: (1) The parents’ income, assets and other obligations, including obligations to other dependents; (2) the child’s need for support to attend an institution of higher education or private career school considering the child’s assets and the child’s ability to earn income; (3) the availability of financial aid from other sources, including grants and loans; (4) the reasonableness of the higher education to be funded considering the child’s academic record and the financial resources available; (5) the child’s preparation for, aptitude for and com- mitment to higher education; and (6) evidence, if any, of the institution of higher education or private career school the child would attend. . . .” The defendant’s claim on appeal challenges the court’s finding that the parties would not have contributed to the child’s higher education if the family had remained intact. We address the defendant’s claim as challenging that finding on the basis that it contradicted the court’s separate factual finding that the plaintiff had agreed to give the child $12,000 to assist the child for the first year.7 “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the 7 The defendant also claims that the court abused its discretion in excluding relevant evidence. First, the defendant claims that docu- ments were improperly excluded from evidence but does not identify the specific documents she contends were “excluded or left unmarked,” and does not provide any citation to the record of the court excluding such evidence. “Claims are . . . inadequately briefed when they . . . consist of conclusory assertions . . . with no mention of relevant authority and minimal or no citations from the record . . . .” (Internal quotation marks omitted.) Rosario v. Rosario, 198 Conn. App. 83, 90, 232 A.3d 1105 (2020). Accordingly, we decline to address this claim as inadequately briefed. Moreover, we note that additional documentary evidence was Borsey v. Borsey

evidence and the pleadings in the record as a whole. . . . 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 con- viction that a mistake has been committed.” (Internal quotation marks omitted.) Buehler v. Buehler, 211 Conn. App. 357, 368, 272 A.3d 736, cert. denied, 343 Conn. 917, 274 A.3d 869 (2022); see Barbour v. Barbour, 156 Conn. App. 383, 396, 113 A.3d 77 (2015) (identifying as factual finding determination whether parties would have provided support to child for higher education). In the present case, following our careful review of the record, we are left with the definite and firm conviction that a mistake has been committed. Specifically, the court made an express factual finding that the plaintiff agreed to give the child “money ([approximately] $12,000) to assist for the first year.” This finding is supported by undisputed evidence in the record, including the testi- mony of both parties, which the court recognized was consistent on this point. In light of this finding, the court’s contradictory finding that the parties would not have contributed to the child’s education if the family had remained intact is clearly erroneous and cannot stand. Rather, the court’s finding regarding the $12,000 introduced following the defendant’s retention of counsel. See footnote 4 of this opinion. Second, the defendant contends that the court improperly refused to permit her to present the testimony of the parties’ child and denied her application for a subpoena for the plaintiff’s spouse. We conclude that the defendant has not satisfied her burden on appeal of demonstrating that the court abused its broad discretion. See Nweeia v. Nweeia, 142 Conn. App. 613, 626, 64 A.3d 1251 (2013) (court did not abuse its discre- tion by precluding plaintiff from calling child as rebuttal witness); see also Practice Book § 7-19 (c) (“[a] judge may direct or deny the issuance of subpoenas as such judge deems warranted under the circumstances, keeping in mind the nature of the scheduled hearing and future oppor- tunities for examination of witnesses, as may be appropriate”); Furbush v. Commissioner of Correction, 158 Conn. App. 821, 824, 120 A.3d 1255 (“[t]he court is granted broad discretion in issuing subpoenas for wit- nesses on behalf of self-represented parties” (internal quotation marks omitted)), cert. denied, 319 Conn. 924, 212 A.3d 241 (2015). Borsey v. Borsey

contribution necessarily satisfies the statutory threshold “that it is more likely than not that the parents would have provided support to the child for higher education . . . if the family were intact.” General Statutes § 46b- 56c (c). Because the court erroneously did not make the thresh- old finding that the parties would have contributed to the child’s education, the court did not continue on to “consider all relevant circumstances” pursuant to § 46b- 56c (c). See also Barbour v. Barbour, supra, 156 Conn. App. 396–97 (reversing court’s educational support order when court did nothing more than grant plaintiff’s proposed order regarding college expenses, did not state that it had considered statutory factors, and included erroneous statement as to plaintiff’s income). Consid- eration of these factors, including the parties’ financial situation, the child’s need for support, the availability of other financial aid, the reasonableness of the educa- tion in light of the child’s academic record, the child’s preparation for higher education, and evidence of the school the child would attend, all involve factual deter- minations that cannot be made by this court in the first instance. See Simpson v. Simpson, 352 Conn. 81, 100, 335 A.3d 472 (2025) (“[a]n appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found” (emphasis in original; internal quotation marks omitted)). Con- sideration of these factors may or may not result in the issuance of an educational support order. Accordingly, we must remand the case for consideration of the statu- tory factors, on the basis of the existing record, and a determination of whether to enter an educational support order. See McKeon v. Lennon, 321 Conn. 323, 350, 138 A.3d 242 (2016) (remanding case to trial court to make findings regarding exercised stock options and restricted stock and to reconsider motion for modification in light of its findings). Borsey v. Borsey

II The defendant next claims that the court improperly credited the plaintiff’s prior overpayments of child sup- port in determining an arrearage following the court’s modification of the plaintiff’s child support obligation. We conclude that the court abused its discretion in cred- iting the plaintiff’s prior payments. The following additional procedural history is rel- evant to our resolution of this claim. With respect to the motion for modification of child support, the court found: “Under the parties’ custody agreement, the plaintiff was required to pay $200/week for child support . . . . The defendant testified that on or about September 11, 2016, the plaintiff agreed to increase child support pay- ments to $300/week, which was not approved by the court. The plaintiff paid $300/week until April 1, 2019. The plaintiff then paid $237/week until April 22, 2024. The plaintiff paid his final five weeks of child support in the court-ordered amount of $200/week. “The defendant claims she is owed $19,568 in child sup- port arrears because the plaintiff ‘breached’ the ‘agree- ment’ to pay $300/week from 2016. The parties engaged in self-help when they entered into a collateral agreement in 2016. In Connecticut, the general rule is that a court order must be followed until it has been modified or suc- cessfully challenged. . . . Our Supreme Court repeatedly has advised parties against engaging in ‘self-help’ and has stressed that an ‘order of the court must be obeyed until it has been modified or successfully challenged.’ “The defendant also asserts that child support should be modified ‘as of April 5, 2024, to $296 per week pursu- ant to the child support guidelines,’ which entitles her to child support arrears of $854 (9 x $96/week). Assum- ing the defendant has established a substantial change in circumstances, the court exercises its discretion to ‘credit’ the plaintiff for years of voluntary overpay- ment of child support. ‘Courts have recognized that the Borsey v. Borsey

decision to allow or disallow credit lies within the sound discretion of the trial court.’ Goold v. Goold, 11 Conn. App. 268, 270, 527 A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987). The defendant’s request for modification of child support and request for arrears is denied.”8 (Citations omitted.) We first set forth applicable legal principles and our standard of review. “We previously have explained the specific method by which a trial court should proceed with a motion brought pursuant to [General Statutes] § 46b-86 (a). When presented with a motion for modifica- tion, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the . . . [General Statutes] § 46b-82 criteria, make an order for modifica- tion. . . . The court has authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. . . . Simply 8 The defendant also claims on appeal that the court failed to comply with Practice Book § 64-1 (a), which provides in relevant part that “[t]he trial court shall state its decision either orally or in writing” in certain matters, including “in making any . . . rulings that constitute a final judgment for purposes of appeal . . . .” The defendant argues that the court failed to satisfy § 64-1 (a) because it “issued only a judicial notice of decision” that “briefly summarizes selected testimony and announces conclusions but makes no express findings of fact or articulated reason- ing connecting the evidence to the law. It contains no determination of whether the defendant proved a substantial change in circumstances . . . no threshold family intact finding . . . and no analysis of the six statutory factors” for educational support orders. The defendant’s claim that the court’s decision failed to comply with Practice Book § 64-1 (a) is unavailing. First, we reject the defendant’s argument to the extent that she contends the order is noncompliant on the basis that it is set forth in a judicial notice of decision or order (JDNO) rather than a memorandum of decision. See Belevich v. Renais- sance I, LLC, 207 Conn. App. 119, 123 n.5, 261 A.3d 1 (2021) (treating JDNO as memorandum of decision). Second, the defendant did not “file with the appellate clerk a notice that the decision has not been filed in compliance with [§ 64-1 (a)],” as directed by § 64-1 (b). Third, we need not address the claimed deficiencies in light of our resolution of the defendant’s first two claims on appeal. Borsey v. Borsey

put, before the court may modify . . . [a child support order] pursuant to § 46b-86, it must make a threshold finding of a substantial change in circumstances with respect to one of the parties. “The party seeking the modification has the burden of proving a substantial change in circumstances. . . . To obtain a modification, the moving party must dem- onstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modifi- cation of the existing order. In making such an inquiry, the trial court’s discretion is essential. . . . “[W]e will not disturb the trial court’s ruling on a motion for modification of alimony or child support unless the court has abused its discretion or reasonably could not conclude as it did, on the basis of the facts pre- sented. . . . Furthermore, [t]he trial court’s findings [of fact] are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . A finding of fact is clearly errone- ous 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.” (Citation omitted; internal quotation marks omitted.) Mountain v. Mountain, 189 Conn. App. 228, 232–33, 206 A.3d 802 (2019). “Retroactive modifications of support orders are ordi- narily impermissible. . . . With the exception of the period following service of a motion for modification, [n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification . . . . The power of the trial court to modify orders of support and alimony is . . . a creature of statute. General Statutes Borsey v. Borsey

§ 46b-86.9 Nothing in our statute regarding modification of alimony and support can be construed as authorizing retroactive modification. Such a construction has been expressly disavowed by our Supreme Court.” (Footnote added; internal quotation marks omitted.) Marshall v. Marshall, 200 Conn. App. 688, 718, 241 A.3d 189 (2020). Resolution of the defendant’s claim first requires us to interpret the language used in the court’s order. “Because [t]he construction of a judgment is a question of law for the court . . . our review of the . . . claim is plenary. As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determi- native factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surround- ing the making of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Anketell v. Kulldorff, 207 Conn. App. 807, 821, 263 A.3d 972, cert. denied, 340 Conn. 905, 263 A.3d 821 (2021). Although the trial court in conclusory fashion indi- cated that it was denying the defendant’s motion for modification of child support, we have carefully con- strued the judgment as a whole and are persuaded that the court, in effect, granted the defendant’s motion for modification. As we explain in greater detail later in this opinion, the court credited the plaintiff for what it described as “years of voluntary overpayment of child support.” In order to have issued the plaintiff a “credit” for overpayments, however, the court necessarily also had to have determined that the plaintiff owed the defen- dant an arrearage against which to apply that credit 9 General Statutes § 46b-86 (a) provides in relevant part: “No order for periodic payment of . . . support may be subject to retroactive modifica- tion, except that the court may order modification with respect to any period during which there is a pending motion for modification of [a] . . . support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50. . . .” Borsey v. Borsey

notwithstanding the fact that, following the defendant’s motion for modification, the plaintiff had paid support in amounts equal to or greater than the amount required under the judgment of dissolution. Having concluded that the court, in effect, granted the motion for modification, we turn to the defendant’s contention that the trial court abused its discretion in determining that a credit was appropriate. We agree with the defendant. We first note the general rule that “a court order must be followed until it has been modified or successfully chal- lenged. . . . Our Supreme Court repeatedly has advised parties against engaging in self-help and has stressed that an order of the court must be obeyed until it has been modified or successfully challenged.” (Citations omitted; internal quotation marks omitted.) Lawrence v. Lawrence, 92 Conn. App. 212, 215–16, 883 A.2d 1260 (2005). The court in the present case stated that it was “credit[ing] the plaintiff for years of voluntary over- payment of child support,” and cited Goold v. Goold, supra, 11 Conn. App. 268, for the proposition that the decision to allow or disallow a credit is within the discre- tion of the trial court. In Goold, the trial court declined to provide the defendant father with a credit against child support for amounts spent by him in the form of direct support of the parties’ child while the child was in the defendant’s physical custody. Id., 270. On appeal, this court recognized that equity may require, in certain circumstances, that a credit toward a child support arrearage be given to a noncustodial parent for direct support provided while the child lived with the noncustodial parent, and set forth the following factors to determine whether a credit should be allowed, includ- ing whether: (i) the party seeking the credit has pursued a motion for modification of the support order; (ii) the parties’ separation agreement expressly provides that the payor may deduct or adjust the support payments when the child is no longer in the payee’s custody; and Borsey v. Borsey

(iii) the payee has in some manner consented to accept the payor’s direct support of the child as an alternative method of payment of support. Id., 274–75. This court concluded that the trial court did not abuse its discretion in denying the credit because the defendant did not file a motion for modification, the separation agreement did not provide for a credit to the defendant for expenditures incurred by him while the child resided with him despite providing for credits in the event of other enumerated circumstances, and the plaintiff had not consented “in any manner to accept the alternate payments as partial or complete satisfaction of the [defendant’s] obligation under the decree.” Id., 277. The court in Goold further explained that “[t]he plain- tiff, having obtained legal custody of the children and having been awarded child support for their maintenance, had the right and privilege to determine how and in what manner child maintenance funds should be spent. . . . By unilaterally reducing the amount of his child support pay- ments without the consent of the plaintiff, the defendant diverted such maintenance funds from [the plaintiff], thereby reducing [the plaintiff’s] ability to make such decisions. . . . To permit the defendant to receive credit for his payments under these circumstances would be to vary the terms of the decree and usurp from the plaintiff the right to control the disbursement of the support money.” (Citations omitted; internal quotation marks omitted.) Id. Accordingly, this court concluded that the trial court properly denied the defendant’s request for a credit. Goold is distinct both procedurally and factually from the present case in that it involved a contempt proceed- ing brought in connection with a child support arrear- age wherein the payor, the respondent in the contempt proceeding, sought a credit for direct support provided. For that reason, the factors enumerated in Goold do not guide our analysis. The case is useful, however, for its illustration of the limited situations in which a credit would be appropriate and its explanation of why the Borsey v. Borsey

payor in that case had not satisfied the equitable criteria with respect to a credit. Of the three factors, most relevant to the present case is the third factor of consent to an alternative payment as satisfaction of the payor’s obligation. Importantly, the record in the present case contains no evidence to suggest that the defendant had any way of knowing that the plaintiff unilaterally would reduce his child support payments from the agreed upon higher amount and, fol- lowing a successful modification in which it was shown that he owed support in that increased amount, seek a credit for the prior overpayments. To the contrary, the primary evidence in the record of the parties’ understanding at the time the plaintiff commenced making $300 payments is a September 11, 2016 email exchange between the parties, admitted into evidence without objection. In the plaintiff’s email, he writes that he has agreed to pay $300 weekly in child support. He continues: “At a future date if you are not satisfied with $300 child support payment you have every right to bring me to court for a modification if you so desire. Again, my lawyer used estimates for the child support guideline worksheet that I believe to be fair.” The plaintiff additionally wrote: “[It’s] not that you can’t ask me for more at a later date if you feel so inclined. Just that since we’re not going to court to modify the agreement, my only legal obligation per the Divorce Agreement is $237 at this time.”10 The plaintiff sought confirmation from the defendant that “this is a deviation I’ve agreed to from the $237 that the original divorce agreement states and . . . that you are currently satisfied with $300 per week.” Thus, there was no consent to any prepayment of child support but, rather, an understanding that the plaintiff, 10 It is unclear why the plaintiff referenced “a legal obligation per the Divorce Agreement” of $237. When asked by the plaintiff’s counsel, the defendant agreed that the email was “incorrect,” in that the plaintiff’s child support obligation under the parties’ separation agreement was $200. Borsey v. Borsey

by 2016, owed more in child support than the separation agreement had provided for, and an agreement between the parties that the plaintiff would pay an amount that had been calculated in accordance with the child support guidelines, in an effort to avoid judicial proceedings. The plaintiff’s straightforward and unqualified statement to the defendant that she had every right to pursue a modification is important, in that he does not therein give any indication that he would seek a credit in the event that she were to pursue such modification. Moreover, issuing a credit in the present case would be inconsistent with the principle that, “[a]s a result of being awarded child support, the [payee] has the right and privilege to determine how and when the funds should be spent.” Lawrence v. Lawrence, supra, 92 Conn. App. 216. A unilateral attempt to prepay a support obligation without the payee’s consent reduces the payee’s ability to make decisions regarding how and when funds should be spent and “usurp[s] the right to control the disburse- ment of the support.” Id. Finally, the issuance of a credit in the present case would be incongruent with the traditional purpose of child support. General Statutes § 46b-84 (a) imposes “a duty on divorced parents to support the minor chil- dren of their marriage, [and] creates a corresponding right in the children to such support. . . . This right does not come through their [parental custodian] . . . . Child support therefore furnishes the custodian with the resources to maintain a household to provide for the care and welfare of the children; in essence, the cus- todian holds the payments for the benefit of the child.” (Citations omitted; emphasis added; internal quotation marks omitted.) Tomlinson v. Tomlinson, 305 Conn. 539, 555, 46 A.3d 112 (2012). In the present case, the plaintiff’s prior payments properly were considered to be overpayments because they exceeded his court-ordered obligation. However, the uncontroverted evidence in the form of an email written by the plaintiff suggested that the amount of the prior payments was calculated in Borsey v. Borsey

accordance with the child support guidelines and, thus, was the amount to which the child was entitled. Accord- ingly, we conclude that the court abused its discretion in issuing the plaintiff a credit.11 Having concluded that the court abused its discretion in determining that the plaintiff was entitled to a credit, we turn to the issue of fashioning an appropriate remedy. In the present case, the court considered the defendant’s request for modification as of April 5, 2024, which the court concluded would entitle the defendant to $854,12 calculated by considering a nine week period during which application of the child support guidelines would have required the plaintiff to pay an additional $96 per week.13 Rather than ordering the plaintiff to pay that amount, the court credited the plaintiff for “years of voluntary overpayment of child support.” Underlying the issuance of the credit is the implicit finding that an 11 The defendant also argues that the plaintiff’s 2019 reduction in child support, from the $300 to which he had agreed to the $237 amount, implicates the doctrine of equitable estoppel. To the extent that the defendant seeks a modification of the plaintiff’s child support obligation for the period of time preceding her filing of the motion for modification, we note that a modification may be made retroactive only to the date of service of the motion for modification. See General Statutes § 46b-86 (a). Accordingly, the court properly denied the defendant’s request for child support arrears prior to the filing of her motion for modification. Moreover, our review of the record reveals that, aside from a brief mention during closing argument, the defendant first distinctly raised equitable estoppel to the trial court in her motion for reargument. “Rais- ing an issue for the first time in a motion to reargue will not preserve that issue for appellate review.” White v. Mazda Motor of America, Inc., 313 Conn. 610, 634, 99 A.3d 1079 (2014). Accordingly, we decline to review this claim as unpreserved. 12 We note that $854 reflects a scrivener’s error, in that the amount should be $864. 13 In closing argument, the defendant’s counsel stated: “[I]f Your Honor’s only inclined to issue an order since the date of the filing of the motion for modification which was back earlier this year, we submitted similar child support guidelines using the affidavits that the two of them filed around that period of time, I think it was two ninety six . . . a week. . . . And we’d ask that you at least make an order retroactive to that date for that particular amount of money until June 6 which is when the child was eighteen and graduated from high school so she would have tapped out on the weekly child support.” Borsey v. Borsey

arrearage was owed, which finding exists only upon a determination that the defendant showed a substantial change in circumstances and that an order for modifi- cation was made. Thus, although the court stated that it was denying the motion for modification, in light of our careful review of the judgment as a whole, the only rational interpretation of the judgment indicates that the court found that the plaintiff owed $296 per week in child support and, thus, granted the motion. This conclusion is supported by the December 2, 2024 child support guidelines worksheet prepared by the defen- dant’s counsel and contained within the trial court file. The worksheet reflects income and deductions from the plaintiff’s December 2024 financial affidavit. It shows a presumptive child support obligation owed by the plain- tiff in the amount of $296 weekly, which the court ref- erenced in its order. The motion was served on the plaintiff on April 5, 2024, and child support was to terminate in June 2024, when the child graduated high school. There was, therefore, a nine week period, in which the plaintiff’s obligation was $296. The undisputed evidence in the record dem- onstrated that the plaintiff paid $237 weekly for three of those weeks and paid $200 for the final payments. Accordingly, the trial court’s determination of a $96 weekly difference for a total of nine weeks reflects a mathematical error in that it does not account for three payments of $237 made during that period. The deficit during the nine week period was $753. Although the defendant has not raised a claim on appeal concerning this error, we nonetheless believe that it is appropriate to direct that this error be corrected on remand because it is technical in nature. See Mystic Oil Co. v. Shaukat, LLC, 228 Conn. App. 147, 152 n.7, 323 A.3d 1094 (2024) (“[a]lthough not raised by the parties, the error is clearly technical and not substantive, and, thus, we will direct its correction on remand”). Concerning part I of this opinion, our determination that the court made a clearly erroneous finding that the Borsey v. Borsey

parties would not have contributed to the child’s educa- tion if the family had remained intact and our determi- nation that the court’s finding regarding the $12,000 contribution necessarily satisfies the statutory threshold that it is more likely than not that the parents would have provided support to the child for higher education if the family were intact, necessitates a remand of the matter for factual findings following due consideration of the statutory factors, on the basis of the existing record, and a determination of whether to enter an educational support order. Concerning part II of this opinion, our determination that the court abused its discretion in issuing the plaintiff a credit toward child support owed necessitates a reversal of the judgment in part and a remand of the matter to the trial court with direction to order the plaintiff to pay $753 to the defendant. The judgment is reversed in part and the case is remanded for further proceedings in accordance with this opinion. In this opinion, MOLL, J., concurred.