LAUREN BERGER v. BRYAN FINKEL
(AC 36551)
Connecticut Appellate Court
Argued September 18—officially released November 17, 2015
DiPentima, C. J., and Keller and Mullins, Js.
(Aрpeal from Superior Court, judicial district of Stamford-Norwalk, Calmar, J. [dissolution judgment]; Adelman, J. [motion for modification].)
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Gary I. Cohen, with whom was Nicole DiGiose, for the appellee (plaintiff).
MULLINS, J. The defendant, Bryan Finkel, appeals from the judgment of the trial court denying his motion for a modification of alimony and child support. On appeal, the defendant claims that the court incorrectly determined that thе dissolution court had used his earning capacity to fashion its support orders, and, on the basis of this error, the court then improperly determined that he failed to prove a substantial change in circumstances. We reverse the judgment of the trial court.
The following facts and relevant procedural history inform our review. The marriage of the defendant and the plaintiff, Lauren Berger, was dissolved on February 2, 2012. In a corrected April 18, 2012 memorandum of decision, the dissolution court, Calmar, J., ordered the defendant to pay to the plaintiff periodic alimony in the amount of $500 per week and child support for the parties’ two minor children in the amount of $342 per week. On December 31, 2012, the defendant filed a motion for modification of his support order on the ground that there had been a substantial change in circumstances since the court issued its earlier support orders.1 Following a hearing on December 18, 2013, the court denied the defendant’s motion for modification. The defendant filed a motion to reargue, which the court granted, and the matter was reheard on December 30, 2013, and January 23, 2014. The court issued a written memorandum of decision on January 24, 2014, again denying the defendant’s motion for modification. This appeal followed. Additional facts will be set forth as necessary.
Initially, we set forth our standard of review. ‘‘The scope of our review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . 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. . . . Nevertheless, we may reverse a trial court’s ruling on a modification motion if the trial court applied the wrong standard of law. . . .
‘‘[
‘‘Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony and support are relevant to the question of modification. . . . The power of the trial court to modify the existing order does not, however, include the power to retry issuеs already decided . . . or to allow the parties to use a motion to modify as an appeal. . . . Rather, the trial court’s discretion includes only the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties. . . .
‘‘Thus, [w]hen presented with a motion for modification, 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
We also note that ‘‘[i]t is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards [pursuant to
In this appeal, the defendant claims that the court incorrectly determined that the dissolution court had used the defendant’s earning capacity, rather than his gross and net income, when fashioning its support
The following additional facts are necessary to our resolution of the defendant’s claim. In its April 18, 2012 memorandum of decision, the dissolution court made the following relevant findings: ‘‘[T]he defendant enjoyed income of $328,120 in 2009,3 as set forth in the defendant’s 2009 federal income tax return, $158,962 in 2010, as set forth in the defendant’s application for automatic extension of time to file his 2010 income tax return, and $95,550 in 2011, as stated by the defendant at trial on October 4, 2011. At the time of trial, he reported that he was not consulting but was receiving consultant fees for completed work in the amount of $273 per week. The court finds the defendant has a gross income of $116,000 and net weekly earnings of $1230. The court is optimistic that the defendant’s earning capacity, like the plaintiff’s, will improve. Based on this likelihood, the court will require each party to provide to the other documentation of income on a yearly basis while any of the court’s financial orders remain in effect.’’ (Footnote in original.) On the basis of these facts and others, the cоurt ordered the defendant to pay periodic alimony to the plaintiff in the amount of $500 per week, and to pay support for the two minor children in the amount of $342 per week, which the court found to be in accordance with the child support guidelines.
In December, 2012, the defendant filed a motion for modification of the dissolution court’s support orders. On the face of the motion, the defendant alleged that there had been a substantial change in circumstances, which, he wrote, were as follows: ‘‘Prior to [the dissolution] trial, the defendant was employed full-time in Florida. At the time of trial, the defendant was unemployed, but the court . . . found the defendant had an earning capacity of $116,000 annually. Since that time, the defendant has been unable to find full-time employment but has worked as much as possible as an independent contractor whenever he can find work. In the eleven months since Judge Calmar’s orders were released, the defendant has earned $59,404 . . . which is substantially below Judge Calmar’s imputed earning capacity of $116,000 annually . . . .’’
Early in the December 11, 2013 hearing on the defendant’s motion for modification, the defendant’s attorney argued to the court that Judge Calmar ‘‘was mistaken about [the defendant’s] earning capacity.’’ He stated: ‘‘In fact, [the defendant] hasn’t been able to earn what was projected that he might be able to earn . . . .’’ The court told the defendant’s attorney that ‘‘Judge Calmar’s decision is the law at this point, and so you need to
During the hearing, the defendant testified that his gross business income was just over $79,000 in 2011.4 He also testified that his gross income for 2012 was between $65,000 and $75,000, which, after his attorney showed him a document to refresh his memory, he corrected and stated that his gross income from employment in 2012 was $50,700. The court then asked counsel if this was from the defendant’s schedule C, and it explained that ‘‘it makes a significant difference to me as to whether or not this is his gross proсeeds or his gross income, net of claimed business expenses.’’ The defendant then clarified, through examination, that his gross receipts were $65,000 to $75,000 and that, after deducting business expenses, his net profit was $50,700 for 2012.
Soon thereafter, the defendant’s attorney argued that he had met his burden of proving a substantial change in circumstances: ‘‘Judge Calmar’s decision reached the conclusion that [the defendant] had an earning capacity of $116,000 a year. In fact, in one year, he earned $79,000, and, in another year, he earned $50,000. That’s substantially below the imputed income or the earning capacity income upon which Judge Calmar based his orders. I think that, in and of itself, is a change in circumstances that warrants the court in hearing all the evidence as to whether there should be a modification and what it should be.’’ The plaintiff’s attorney argued otherwise.
The court took a short recess to review in more detail Judge Calmar’s decision. When court resumed, the defendant’s attorney stated that he essentially ‘‘had to throw himself on his own sword’’ because, during the recess, he realized that he had been misreading Judge Calmar’s decision. He stated: ‘‘I have, frankly, always read Judge Calmar’s decision to say that [the defendant] had an earning capacity of $116,000 per year. But that’s not what Judge Calmar says. And it’s clear that it’s not. In fact . . . Judge Calmar writes [that] the court finds the defendant has a gross income of [$116,000] and a net weekly of $1230. He doesn’t use the word earning capacity in that sentence at all. . . . He finds that [the defendant] has earnings of $116,000 a year. There was no motion for an articulation as to that finding. Perhaps, there should have been. Hindsight is always twenty-twenty.’’
The plaintiff’s attorney then pointed out that ‘‘Judge Calmar wrote, ‘the court finds the defendant has a gross income of $116,000 [and] net weekly earnings of $1230. The court is optimistic that the defendant’s earning
The court stated that it believed the plaintiff’s counsel was correct. Nevertheless, the court then pointed out that ‘‘it’s clear that [in] the [defendant’s] preparation of [his] affidavit [he] made no attempt to estimate or calculate a true net [income]. In fact, [the affidavit] simply says taxes not yet paid. So, I’m really left only with a gross income, which, in and of itself, is below the earning capacity.’’ The court then denied the defendant’s motion, ruling from the bench.
On December 18, 2013, the defendant filed a motion to reargue, which the court granted. The court also vacated its denial of the defendant’s motion for modification and continued the proceedings to Jаnuary 23, 2014, for additional evidence. At this hearing the defendant testified. He also presented documentary evidence, specifically, his 2011 and 2012 federal tax returns, in order to show a substantial change in circumstances, namely, his reduced income. The court also had before it a document purportedly showing all of the companies and ‘‘head hunters’’ (employment recruiters) that the defendant had contacted in an effort to secure better employment.
On January 24, 2014, the court issued a memorandum of decision denying the defеndant’s motion for modification on the ground that he had not established a substantial change in circumstances. The court stated that it was persuaded that Judge Calmar had determined the defendant’s earning capacity, rather than his gross income, and it proceeded to consider whether the defendant had established ‘‘a significant change in circumstances sufficient to warrant a hearing [for] a possible modification of the financial orders currently in place.’’ The court discussed the law and the evidence that the defеndant had presented, and it acknowledged that the defendant claimed that he had gross earnings of ‘‘just under $69,000 annually’’ and that he had vigorously been searching for better employment. The court found, however, that ‘‘[d]espite [the defendant’s] testimony . . . the court is simply not convinced that there has been any significant change in his circumstances.’’ Accordingly, the court denied the motion.
The defendant claims that the court incorrectly determined that Judge Calmar had used the defendant’s earning capacity, rather than his gross and net income, when fashioning its support orders, and, on the basis of this error, the court made other errors. We agree that the court misinterpreted Judge Calmar’s decision to have used the defendant’s earning capacity rather than his net income when Judge Calmar fashioned the support orders. We further conclude that because the court used a legal standard not applicable to this case, the
‘‘The construction of a judgment is a question of law for the court. . . . We review such questions of law de novo.’’ (Citation omitted; internal quotation marks omitted.) Robaczynski v. Robaczynski, 153 Conn. App. 1, 4–5, 100 A.3d 408 (2014). ‘‘As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as that which is expressed.’’ (Internal quotation marks omitted.) de Repentigny v. de Repentigny, 121 Conn. App. 451, 462–63, 995 A.2d 117 (2010).
Thе dissolution court specifically found, in its April 18, 2012 memorandum of decision, that the defendant had business income of $73,745 in 2009, $158,962 in 2010, and $95,550 as of October, 2011. It then found that the defendant’s gross income for 2011 was $116,000, with net weekly earnings of $1230. Following these specific findings, the dissolution court then stated that it was ‘‘optimistic that the defendant’s earning capacity, like the plaintiff’s, will improve.’’ The court also stated that the parties were required to exchange yearly income documentation each to the other for so long as the financial orders remainеd in effect. In reading these findings, the trial court determined that the dissolution court had found the defendant’s earning capacity to be $116,000, and that it made no findings as to his purported income for 2011. We disagree and conclude that reading the judgment as a whole, the dissolution court determined that the defendant had a projected gross income of $116,000, with a projected net weekly income of $1230, for the calendar year 2011, and that it based its support orders on this projected income.
First, the dissolution court set forth the defendant’s actual income for the previous years. Next, it set forth what the defendant said was his income through October, 2011. The court then specifically found the defendant’s gross and net income for the entire year 2011, and it directed each party to give to the other documentation of their yearly income each and every year while the financial orders remained in effect. What especially is telling in this matter is what the dissolution court did not do. The court did not detail the necessary elements that are required of a court relying on еarning capacity rather than actual or purported income to determine child support.
As we previously have stated: ‘‘[a] party’s earning capacity is a deviation criterion under the guidelines,
Reading the dissolution court’s written decision, however, it seems rather apparent that the reason the court did not set forth its justification for a deviation from the use of actual income is because it did not deviate. Rather, the court found and used the defendant’s actual projected income in establishing its support orders. We also are persuaded that this reading of thе court’s decision is proper because, had the court used the defendant’s earning capacity in making its orders, it would have made no sense for the court then to direct the parties to exchange financial records on an ongoing basis because the actual earnings of the defendant would not be relevant.5
Additionally, our construction of the decision of the dissolution court is supported by the actual figures set forth in that decision. The court stated that the defendant had testified on October 4, 2011, that he had earned $95,550 during 2011, but that for the eleven weeks prior to his testimony, he had earned only $273 per week. The court also set forth the defendant’s earnings in 2009 as $73,745, and in 2010 as $158,962, as had been evidenced by the defendant’s tax returns for those years. The court then found that the defendant ‘‘has a gross income [for 2011] of $116,000 . . . .’’ Although the plaintiff argues that the dissolution court rejected the defendant’s testimony about his gross income for 2011, and, instead, found the defendant’s earning capacity, the figures and the language used by the court support a conclusion that the court aсcepted the defendant’s testimony that he had earned $95,550 through October 4, 2011, and then projected the defendant’s income for the remainder of 2011, arriving at a figure of $116,000. Accordingly, we conclude that the dissolution court based its support orders on the actual projected earnings of the defendant and not on his
The defendant next argues that because the trial court improperly construed the decision of the dissolution court, the judgment must be reversed because it is tainted by the court’s use of a legal standard that was not аpplicable to the case. We agree.
In this case, the trial court incorrectly found that the dissolution court had used the defendant’s earning capacity in fashioning its financial orders. Once the court made this determination, it then had the responsibility of determining whether the defendant had established a substantial change in his earning capacity. The defendant, however, had not put on evidence as to his earning capacity; rather, his evidence related to his orally revised claim that he had a substantial change in his аctual earnings. Because the court viewed the defendant’s evidence under an inapplicable legal standard, we conclude that the matter must be returned to the trial court for a new hearing.
The plaintiff argues that, even if the trial court employed the wrong standard, because the court found the defendant’s testimony not credible, this case really comes down to a credibility determination. She further contends that the defendant failed to provide any credible evidence of a change in circumstances bеcause he provided no credible financial information of either a substantial change in earning capacity or in actual earnings. We are not persuaded by this contention. Although we agree that the court found credibility problems with the defendant’s testimony, the court also had before it some documentary evidence in the form of federal tax returns, on which the court made no credibility determination. We have no way of assessing whether, if reviewed under the proper standard, the court would have credited this evidеnce as being sufficient to establish a substantial change in the defendant’s actual earnings. Accordingly, the case must be remanded for a new hearing.
The judgment is reversed and the case is remanded for a new hearing on the defendant’s motion for modification.6
In this opinion the other judges concurred.
Notes
In its decision, thе court explained that the plaintiff had received her undergraduate degree from the University of Vermont and her master’s degree in business administration from Fordham University. At the time the parties married, the plaintiff was employed by Clairol as a marketing executive earning more than $100,000 per year. She left that position when she became pregnant with the parties’ first child. The court also found that the plaintiff had started her own business, but that she reported no income at the time of the dissolution trial. The court stated that although it was ‘‘optimistic that the plaintiff’s earnings [would] improve, there was insufficient data presented to the court to [permit it] to find an earning capacity.’’ The court then discussed the defendant’s professional credentials and his reported earnings. The court found that the defendant had ‘‘a gross income of $116,000 and net weekly earnings of $1230’’ before stating that it was ‘‘optimistic that the defendant’s earning capacity, like the plaintiff’s, [would] improve.’’ It seems clear, reading the decision as a whole, that the court meant that it was optimistic that the parties’ actual incomes would improve.