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Appellate Court Says ‘Normal’ Visitation Expenses Don’t Justify Lower Support

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In a case set to be released on May 21, 2013 the Connecticut Appellate Court has overturned a lower court’s ruling that lowered the child support of a visiting father from a presumptive amount of $100 under existing guidelines to $75 as a result of the mother’s relocation within the state.

The trial court in Kavanah vs Kavanah found that Leo Kavanah’s costs in traveling back and forth between Southington, Connecticut and Monroe, Connecticut were ‘extraordinary’ within the meaning of Connecticut’s child support guidelines as they address reasons for deviation from presumptive support amounts.

The higher court held that the trial court had not sufficiently explained the basis for its conclusion that Mr. Kavanah, who had been ordered to do the driving for visitation, would be incurring extraordinary expenses — as opposed to normal expenses — as a result of his wife’s relocation.

This, alone, would not necessarily affect future cases assuming that parents seeking deviation for this reason were careful to present evidence of their visitation costs and that judges ordering deviation were careful to make specific findings about why they were reducing support.

However the Appellate Court did not stop at finding fault with the thoroughness of the lower court’s decision. In addition, they cited with approval another Superior Court decision, Weissman vs. Sissell, in which the court had observed that “[m]any non-custodial parents have some transportation costs to see their child—for parents living within driving distance of each other, for example, the non-custodial parent is likely to pay for fuel and other costs picking up or dropping off the child,
but these ordinary expenses usually do not warrant a deviation from the presumptive amount.’’

Appeals are expensive and, in the case of family law, difficult to win, so it is relatively rare to see a support case with so little at issue reach the Appellate Court.

This is not to say that the difference between $100 and $75 was insignificant to the parties in this case or to other divorcing parents. Certainly the Kavanah case has not closed the door on deviations for low-income individuals for whom in-state or other short-distance travel costs are burdensome, but it raises the bar for how the issue must be presented to the courts and makes it imperative that the court be reminded to make appropriate findings to justify why — in a particular case — transportation expenses that might be normal for some people are extraordinary in the context of the individual circumstances of the family before the court.


Husband Who Lost Lion’s Share of Assets in Divorce Misses Deadline for Appeal by One Day

Talk about being a day late and a dollar short!  In Michael Farren’s 2010 divorce, the trial court found  that Mr. Farren had destroyed his substantial earning capacity by physically attacking his wife and ordered that 75% of the marital assets be awarded to her.

Unhappy with the outcome, Mr. Farren filed a post judgment motion with the trial court on the 20th day after judgment –just under the  wire to preserve his right to appeal the decision.  But there was a problem.  After initially stamping the motion “FILED”, the clerk noticed that Mr. Farren had forgotten to pay the required filing fee for a post judgment motion and faxed the motion back to him.  Mr Farren paid the fee and re-filed the motion the following day but the trial court refused to hear the motion because of the late filing.

After an appeals process that has taken almost three years,  the Connecticut Appellate Court in a decision released  this morning denied his appeal, agreeing with the trail court that one day late is still late.

That wasn’t the only fatal mistake Mr. Farren made regarding the rules of procedure.  The rules required that he file a memorandum of law together with his motion. He hadn’t.  Ms. Farren moved to dismiss the motion and won.  Mr. Farren argued that because he  had corrected the oversight by filing a memorandum after the fact, no harm had been done.  The trial court was not persuaded.   Again, the Appellate  Court agreed with the trial court that rules are rules and strict enforcement of them can never be error.

It is not possible to tell from the decision whether Mr. Farren was representing himself at trial. He appeared pro se in Appellate court but was joined by counsel on the brief.  In a way it doesn’t matter whether the deadlines were missed by a pro se individual or by his lawyer.  The result was the same.

Mr.  Farren may never have  been able to alter the division of assets in his divorce case had be been allowed to bring his appeal on the merits, but he didn’t get the chance.  This was an appeal restricted to issues of procedure.

The role of the Appellate Court in situations like this is not to substitute its judgment for that of the trial judge, but just to determine whether the trial judge committed clear error or an abuse of his or her considerable discretion.  In this case, all the trial judge had done was enforce the rules of court.

Lawyers often speak among themselves about the difference between deadlines and “drop-deadlines.”  In this case, at least for Mr. Farren, failing to file his post-judgment motion within the 20 day appeal period was a drop-deadline — a lesson that took  three years to hit home.  Appeals are long, arduous, and costly and in the case of family law, not often successful.

In this era of increasing pro se litigation, it is important to understand that courts are not necessarily willing to bend the rules depending on the experience or lack thereof of those who appear before them.