189 Conn. App. 790
Conn. App. Ct.2019Background
- Nina Buxenbaum and Brian Jones married in 2007, had two minor children, and litigated dissolution after about eight years of marriage. They were following a temporary 5-2-2-5 shared custody schedule during the pendency of the case.
- Temporary pendente lite orders initially required the plaintiff to pay child support and alimony; parties later entered a pendente lite agreement terminating support based on shared custody.
- Trial occurred in February 2017. The court issued a dissolution judgment awarding joint legal custody, shared physical custody (5-2-2-5), no child support (parties to share certain expenses), plaintiff to maintain children on her insurance, and no alimony. Financial orders allocated the marital home to the defendant, required the plaintiff to transfer $30,000 from her retirement account to the defendant, and left most other assets with each party.
- Plaintiff appealed, raising three main challenges: (1) court predetermine custody and failed to consider children’s best interests because it prepared a child support worksheet before the close of evidence; (2) court failed to consider defendant’s earning capacity when issuing financial orders, resulting in inconsistent orders; and (3) lack of evidentiary support for the court worksheet’s calculation of defendant’s net weekly income.
- The trial court made factual findings about both parties’ incomes, employment history, retirement accounts, business ventures, bankruptcy, and recent investor payments to the defendant. The court found the parties’ net incomes similar and that shared custody made deviation from guideline child support appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court predeter- mined custody by preparing a child support worksheet before close of evidence | Buxenbaum: worksheet dated before close of plaintiff’s testimony shows court predetermination and failure to consider best interests | Jones: worksheet date misstated; court may work on calculations during trial and considered evidence and shared custody | Court: no error — trial judge may take notes and begin work; worksheet use before close of evidence did not prove predetermination or impartiality |
| Whether court abused discretion by failing to base financial orders on defendant’s earning capacity | Buxenbaum: court found defendant had greater earning capacity yet denied alimony/child support and awarded him part of plaintiff’s retirement — logically inconsistent | Jones: no basis to impute capacity; both employed; defendant changed careers and took parenting role; court considered earning capacity but reasonably declined to base orders on it | Court: no abuse — earning capacity is discretionary; court considered facts, parties’ positions, and shared custody; plaintiff had advocated waiver of support at trial |
| Whether the court lacked evidentiary support for figures (defendant’s net weekly income) on its worksheet | Buxenbaum: worksheet figures differ from defendant’s affidavit and tax calculations lack evidentiary basis | Jones: parties were given worksheet to review and did not object; plaintiff herself submitted a worksheet using similar figures | Court: no reversible error — plaintiff submitted and relied on her worksheet and asked court to use her numbers; court’s figures were as favorable or more favorable to plaintiff and matched requested relief |
| Whether Ferraro requires reversal because court used worksheet without articulating tax/deduction sources | Buxenbaum: Ferraro shows a court may not rely on worksheet without evidentiary basis | Jones: Ferraro is distinguishable — here plaintiff supplied calculations and requested the relief ultimately granted | Court: Ferraro distinguishable; here plaintiff invited the court to rely on her representations and obtained requested orders; reversal would permit ambuscade tactic |
Key Cases Cited
- Kirwan v. Kirwan, 185 Conn. App. 713 (Conn. App. 2018) (standard of review for domestic relations and appellate deference to trial court findings)
- Keusch v. Keusch, 184 Conn. App. 822 (Conn. App. 2018) (mosaic doctrine: financial orders considered as an interdependent plan)
- D'Amato v. Hart-D'Amato, 169 Conn. App. 669 (Conn. App. 2016) (best interests standard guides custody)
- Yontef v. Yontef, 185 Conn. 275 (Conn. 1981) (precludes predetermined weighing of evidence in custody decisions)
- Havis-Carbone v. Carbone, 155 Conn. App. 848 (Conn. App. 2015) (predetermination implicates judicial impartiality)
- Bank of America, N.A. v. Thomas, 151 Conn. App. 790 (Conn. App. 2014) (allegation of predetermination implicates impartiality)
- Zilkha v. Zilkha, 167 Conn. App. 480 (Conn. App. 2016) (need to preserve bias/impartiality claims at trial)
- Cameron v. Cameron, 187 Conn. 163 (Conn. 1982) (plain error review for serious judicial errors)
- Fox v. Fox, 152 Conn. App. 611 (Conn. App. 2014) (earning capacity may be used to calculate support; factors to consider)
- Schmidt v. Schmidt, 180 Conn. 184 (Conn. 1980) (earning capacity appropriate where earnings willfully depleted)
- Ferraro v. Ferraro, 168 Conn. App. 723 (Conn. App. 2016) (trial court may not use worksheet figures unsupported by evidence; need to articulate sources)
- Golden v. Mandel, 110 Conn. App. 376 (Conn. App. 2008) (guidelines worksheet basis on net income and required deductions)
- Ray v. Ray, 177 Conn. App. 544 (Conn. App. 2017) (child support/alimony must be based on available net income; context-specific application)
- Utz v. Utz, 112 Conn. App. 631 (Conn. App. 2009) (difficulty in calculating net income when records show differing tax rates)