161 Conn.App. 416
Conn. App. Ct.2015Background
- Marriage dissolved Feb. 2, 2012; dissolution court (Calmar, J.) ordered defendant Bryan Finkel to pay $500/week alimony and $342/week child support for two minor children.
- Dissolution decision found historical business income (2009, 2010, 2011 figures) and stated the defendant had a gross income of $116,000 for 2011 and net weekly earnings of $1,230; the court also said it was "optimistic" the parties’ earning capacity/income would improve and ordered annual income documentation exchange.
- Defendant moved to modify (Dec. 31, 2012), alleging his actual earnings since the dissolution were substantially lower than the $116,000 projection and he could not find full‑time employment; he presented 2011–2012 tax returns and job search documentation.
- Trial court (post‑hearing) construed the dissolution decision as having imputed $116,000 as the defendant’s earning capacity, concluded the defendant failed to show a substantial change in earning capacity, and denied modification.
- Appellate court held the trial court misread the dissolution decision: the dissolution court used projected actual income for 2011 (gross $116,000, net weekly $1,230), not an earning‑capacity deviation, so the trial court applied the wrong legal standard and remanded for a new hearing.
Issues
| Issue | Berger (Plaintiff) Argument | Finkel (Defendant) Argument | Held |
|---|---|---|---|
| Whether dissolution court based support on earning capacity or projected actual income | Calmar’s decision used earning capacity (so modification must address change in earning capacity) | Calmar based orders on projected actual 2011 income of $116,000 and net weekly $1,230 | Court held Calmar used projected actual income, not earning capacity deviation |
| Whether defendant showed a substantial change in circumstances warranting modification | Even under correct standard, defendant’s testimony lacked credibility and documentary evidence insufficient | Defendant argued actual earnings in 2011–2012 were substantially below the $116,000 projection and constitute a change | Court reversed trial court because it applied wrong legal standard and remanded for new hearing to assess change in actual earnings |
| Whether trial court should have analyzed earning capacity evidence | Plaintiff: trial court permissibly treated matter as credibility/earning‑capacity inquiry | Defendant: he presented evidence only of reduced actual earnings, not earning‑capacity proof | Court held trial court erred in requiring earning‑capacity proof because dissolution court did not base orders on earning capacity |
| Whether remand is required | Plaintiff: credibility findings could stand regardless of standard | Defendant: wrong standard prejudiced him; remand necessary | Court ordered reversal and remand for new hearing under correct standard |
Key Cases Cited
- Olson v. Mohammadu, 81 A.3d 215 (Conn. 2013) (standards for modification: substantial change prerequisite and §46b‑82 criteria apply after change found)
- Tanzman v. Meurer, 70 A.3d 13 (Conn. 2013) (earning capacity may be used instead of actual income; defined and factors to consider)
- Fox v. Fox, 99 A.3d 1206 (Conn. App. 2014) (earning capacity is a deviation criterion under child‑support guidelines and must be expressly invoked and justified)
- Robaczynski v. Robaczynski, 100 A.3d 408 (Conn. App. 2014) (construction of judgments is a question of law reviewed de novo)
- de Repentigny v. de Repentigny, 995 A.2d 117 (Conn. App. 2010) (interpretation of a judgment requires reading the decision as a whole to ascertain intent)
- Barcelo v. Barcelo, 118 A.3d 657 (Conn. App. 2015) (requirements when using earning capacity as deviation in child‑support calculation)