Chowdhury v. Masiat ( 2015 )

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RUMA CHOWDHURY v. MURAKIB MASIAT
(AC 36130)
Beach, Keller and Mihalakos, Js.
Argued May 18—officially released November 17, 2015
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Turner, J.)
Karen L. Dowd, with whom was Brendon P. Lev-
esque, for the appellant (plaintiff).
David V. DeRosa, for the appellee (defendant).
Opinion
MIHALAKOS, J. The plaintiff, Ruma Chowdhury,
appeals from the judgment of the trial court dissolving
her marriage to the defendant, Murakib Masiat. On
appeal, the plaintiff claims that the court (1) improperly
awarded child support for two, rather than three, eligi-
ble children; (2) deviated more than 20 percent from
the presumptive child support award pursuant to the
child support guidelines1 (guidelines), without a neces-
sary explanation; (3) divided marital assets based on
clearly erroneous findings of fact; and (4) determined
that the plaintiff failed to prove the existence of the
parties’ Nikahnama2 and, therefore, improperly con-
cluded that she was not entitled to receive $4815.40 as
provided by that agreement. We affirm the judgment
of the trial court as it relates to the Nikahnama, reverse
the judgment as to the financial orders, and affirm the
judgment in all other respects.
The following facts and procedural history are rele-
vant to our review of the plaintiff’s claimS. The court,
after ten days of trial, made the following factual find-
ings in its memorandum of decision dated July 23, 2013.
It considered all of the evidence as well as a stipulation
of facts dated June 26, 2012. The court found that the
parties were married on March 9, 1995, as part of an
arranged marriage in Bangladesh. At the time of their
marriage, the parties allegedly entered into a ‘‘Nikah-
nama,’’ referred to by the parties as a marriage contract
or a marriage deed, which upon divorce would allow
the plaintiff to collect $4815.40. Several versions of the
document were submitted into evidence, but none of
the versions had been signed by either party. Addition-
ally, the court was presented with a joint stipulation
signed by the parties and heard testimony at trial regard-
ing the Nikahnama. The court found that the plaintiff
failed to prove by a preponderance of the evidence
‘‘that the parties entered into a valid marriage contract
(Nikahnama),’’ and therefore failed to prove that the
defendant did not pay the amount promised, and that
the plaintiff is owed $4815.40 pursuant to the alleged
contract.
Additionally, the parties had three minor children
issue of the marriage. At the time of trial, the oldest
child, seventeen years of age, was about to graduate
from high school and was to attend college the following
year. The younger children were five and eleven years
old, respectively.
At the time of the marriage dissolution, the plaintiff
was receiving food stamps from the state of Connecticut
and she and the minor children were recipients of medi-
cal assistance from the state of Connecticut.3 The plain-
tiff was thirty-nine years old, had completed two years
of high school in Bangladesh, but had not completed
high school or an equivalent level of education in the
United States, or any further formal vocational training
or education. Throughout the marriage, the plaintiff had
been employed periodically at fast food restaurants and
at a department store. The court determined her earning
capacity to be $330 per week, which it arrived at by
taking the current minimum wage of $8.25 per hour
and multiplying it by a forty hour work week. The court
also found that the plaintiff had made and continued
to make ‘‘reasonable and diligent efforts to find gainful
employment,’’ and was presently employed as a part-
time daycare provider, with an average gross income of
$135 per week. The plaintiff had no source of financial
support other than the defendant.
The defendant received a high school diploma in Ban-
gladesh and, despite representations made on his
resume, had not received any additional education. He
had been continuously employed as a senior software
test engineer at the Emerson Company since December,
2000, with a net income of $1148 per week. The defen-
dant was also a licensed taxicab driver in New York
City, and through 2012 drove a taxi on weekends, which
netted on average $450 per weekend.4 The court also
found that both parties were in reasonably good health
and able to work.
The court found that neither party brought significant
assets to the marriage. The debts and liabilities of the
parties were summarized, in relevant part, as follows:
‘‘The [defendant] utilized numerous credit cards he
acquired in the [plaintiff’s] name, without her consent
or knowledge, including, a Juniper Barclay Master Card,
an HSBC Master Card, two Chase cards, two Discover
cards and a CITI Bank card. He used the cards, among
other things, primarily to access funds to make expendi-
tures for members of his family (other than the plaintiff
and their children); to repay loans made to him by
others; to make loans to others; for gambling expenses
and to cover his gambling losses. His gambling losses
at Mohegan Sun Casino exceeded $88,000. His gambling
losses at Foxwoods Casino exceeded $110,000. Bank
withdrawals of cash were made by him at the Mohegan
Sun and Foxwoods Casinos exceeding $1800. As a result
of his use of the credit cards there is an unknown but
significant amount of credit card debt in the [plaintiff’s]
sole name, which she did not incur and was not for
their joint or household benefit.’’ The court made these
findings regarding the defendant’s gambling debt
despite a joint stipulation signed by the parties, which
stated that the defendant’s gambling debt was $110,029.
The court nonetheless found gambling losses in the
amount of $198,000.
The court then made the following relevant orders.
With regard to child support,5 the court ordered: ‘‘No
order of child support is entered for the [oldest] minor
child . . . . He has graduated from high school, will
be attending [college] in September 2013, and the par-
ties are ordered to contribute to his postsecondary edu-
cation.’’ The court also set forth a specific provision
for postsecondary education for the oldest minor child.6
Additionally, for the two remaining minor children, the
court ordered that the defendant pay a sum of $250 per
week to the plaintiff as child support, until they gradu-
ate from high school or attain nineteen years of age,
whichever occurs first. With regard to the debts and
liabilities incurred by the parties, the court ordered that
the defendant should assume responsibility for paying
multiple debts he had incurred in his wife’s name, on
the basis of its finding that these debts were largely
incurred for his benefit and as the result of his gambling
losses. Finally, with regard to the Nikahnama, as stated
previously, the court ultimately determined that it was
unenforceable and, therefore, it was unaccounted for
in the financial orders.
Following the court’s memorandum of decision, the
plaintiff filed several motions. The plaintiff filed a
motion for stay of execution of judgment, a motion
to reargue, a motion for reconsideration of the orders
entered in judgment, and a motion for clarification of
decision and orders. In relevant part, these motions
raised the claims brought on appeal. The plaintiff
argued that the court deviated more than 20 percent
from the child support guidelines without explanation.
Further, the plaintiff argued, in pertinent part, that the
court failed to account properly for three minor chil-
dren, rather than two, in computing the proper child
support order pursuant to the guidelines. Finally, the
plaintiff argued that the court made clearly erroneous
findings of fact related to, inter alia, the Nikahnama
and the defendant’s gambling debt, when the court fac-
tored in approximately $80,000 more debt than what
was stipulated to by the parties. All of the plaintiff’s
four postjudgment motions were denied. The plaintiff
then filed this appeal.
We begin by setting forth the standard of review
necessary to our review of family matters. ‘‘The stan-
dard of review in family matters is well settled. An
appellate court will not disturb a trial court’s orders in
domestic relations cases unless the court has abused
its discretion or it is found that it could not reasonably
conclude as it did, based on the facts presented. . . .
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. . . . Appellate review of a
trial court’s findings of fact is governed by the clearly
erroneous standard of review. The trial court’s findings
are binding upon this court unless they are clearly erro-
neous in light of the evidence and the pleadings in the
record as a whole. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port 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 mis-
take has been committed.’’ (Internal quotation marks
omitted.) Demartino v. Demartino, 79 Conn. App. 488,
492, 830 A.2d 394 (2003). The long-standing deference
granted to the trial court ‘‘reflects the sound policy that
the trial court has the unique opportunity to view the
parties and their testimony, and is therefore in the best
position to assess all of the circumstances surrounding
a dissolution action, including such factors as the
demeanor and the attitude of the parties.’’ Casey v.
Casey, 82 Conn. App. 378, 383, 844 A.2d 250 (2004).
Of great significance in the present case, we note
that our review of financial orders entered by a trial
court in a dissolution matter is governed by the mosaic
doctrine. ‘‘Under the mosaic doctrine, financial orders
should not be viewed as a collection of single discon-
nected occurrences, but rather as a seamless collection
of interdependent elements. Consistent with that
approach, our courts have utilized the mosaic doctrine
as a remedial device that allows reviewing courts to
remand cases for reconsideration of all financial orders
even though the review process might reveal a flaw only
in the alimony, property distribution or child support
awards.’’ (Internal quotation marks omitted.) Valentine
v. Valentine, 149 Conn. App. 799, 803, 90 A.3d 300(2014).
I
The plaintiff’s first claim addressed on appeal is that
the trial court, without mention of any statute or agency
regulation, improperly declined to award child support
for the oldest child. We first emphasize that, ‘‘[n]otwith-
standing the great deference accorded the trial court
in dissolution proceedings, a trial court’s ruling . . .
may be reversed if, in the exercise of its discretion, the
trial court applies the wrong standard of law.’’ (Internal
quotation marks omitted.) Kiniry v. Kiniry, 299 Conn.
308, 316, 9 A.3d 708 (2010).
‘‘The legislature has enacted several statutes to guide
courts in fashioning child support orders. General Stat-
utes § 46b-84 provides in relevant part: ‘(a) Upon or
subsequent to the annulment or dissolution of any mar-
riage or the entry of a decree of legal separation or
divorce, the parents of a minor child of the marriage,
shall maintain the child according to their respective
abilities, if the child is in need of maintenance. . . .
‘‘ ‘(d) In determining whether a child is in need of
maintenance and, if in need, the respective abilities of
the parents to provide such maintenance and the
amount thereof, the court shall consider the age, health,
station, occupation, earning capacity, amount and
sources of income, estate, vocational skills and employ-
ability of each of the parents, and the age, health, sta-
tion, occupation, educational status and expectation,
amount and sources of income, vocational skills,
employability, estate and needs of the child. . . .’ ’’
Kiniry v. Kiniry, supra, 299 Conn. 318–19. Additionally,
in accordance with Maturo v. Maturo, 296 Conn. 80,
92, 995 A.2d 1 (2010), child support orders must be
made pursuant to the principles established by statute
and guidelines, a presumptive amount of child support
must be calculated, and any deviation must be accompa-
nied by the court’s explanation as to why the guidelines
are inequitable or inappropriate and why deviation is
necessary to meet the needs of the child. General Stat-
utes § 46b-215b (a).
In the present case, the trial court did not discuss
either the § 46b-84 (d) ‘‘need of maintenance’’ criteria,
or the deviation requirement imposed by Maturo.
Instead, the court simply stated that, ‘‘[n]o order of
child support is entered for the [oldest] minor child
. . . . He has graduated from high school, will be
attending [college] in September 2013, and the parties
are ordered to contribute to his postsecondary educa-
tion.’’ The court did not offer any reason for its deviation
from the guidelines, nor did it justify why the eldest
child was no longer in need of maintenance and thus
excluded from the final award of child support. Evi-
dence was offered at trial that the oldest child lived in
the plaintiff’s home, was seventeen years old and was
about to attend college in the fall of 2013. The court
failed to make a determination whether the oldest child
was ineligible or in need of ‘‘maintenance,’’ and this
failure represents a deviation from the requirements of
§ 46b-84. Additionally, under the holding in Maturo,
which explicitly calls for an on-the-record explanation
of any such deviation from the presumptive amount,
the court also failed to articulate an on-the-record basis
for a deviation amounting to 100 percent with respect
to that child.7
II
The plaintiff’s next claim is that the court made
clearly erroneous findings of fact regarding the defen-
dant’s gambling debt. Specifically, the court found the
defendant had amassed a gambling debt of $198,000,
despite a joint stipulation by the parties, which stated
the debt was $110,029.
‘‘At the outset, we note that the court’s factual deter-
minations will not be overturned on appeal unless they
are clearly erroneous. . . . As a reviewing court, we
may not retry the case or pass on the credibility of
witnesses. . . . Our review of factual determinations
is limited to whether those findings are clearly errone-
ous. . . . We must defer to the trier of fact’s assess-
ment of the credibility of the witnesses that is made on
the basis of its firsthand observation of their conduct,
demeanor and attitude. . . . 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 conviction that a mis-
take has been committed.’’ (Citation omitted; internal
quotation marks omitted.) Riscica v. Riscica, 101 Conn.
App. 199, 204–205, 921 A.2d 633 (2007).
In her brief, the plaintiff states that the court’s depar-
ture from the gambling debt the parties stipulated to
resulted in a miscalculation of roughly $100,000. Follow-
ing the court’s memorandum of decision, the plaintiff
filed a motion for clarification of decision and orders,
in which she sought clarification for the miscalculation,
which was denied by the court. We first note that the
court failed to support its finding that the gambling
debt exceeded the parties’ stipulation of approximately
$110,000. Furthermore, there is no evidence in the
record to support departing from the stipulated debt
amount and the defendant acknowledges that despite
the stipulation, the court found an amount far in excess
of that agreed upon.8 In light of such an apparent over-
sight, without explanation, we are persuaded that this
finding by the court was clearly erroneous.
In addition to our determination that the gambling
debt finding was clearly erroneous, we cannot speculate
whether the court on remand will make the same or
different orders regarding the division of the assets and
liabilities of the parties, in consideration of the proper
amount of gambling debt. This determination will be a
matter for the discretion of the court on remand. See
Cuneo v. Cuneo, 12 Conn. App. 702, 710, 533 A.2d
1226 (1987).
III
We next address the plaintiff’s claim regarding the
Nikahnama. The plaintiff claims that the court, in craft-
ing its financial orders, failed to award her damages
related to the Nikahnama, a contract into which the
parties had entered prior to the marriage. The plaintiff
argues that the court’s finding that a valid contract had
not been proven was erroneous in light of the parties’
joint stipulation of facts. Therefore, the plaintiff further
argues, the court’s determination that the defendant
had no obligation to her created by the Nikahnama was
also in error.
In its memorandum of decision, the court stated in
relevant part: ‘‘The parties entered into a ‘Nikahnama,’
(referred to as a marriage contract) also known as a
marriage deed when they married. Several versions of
the Nikahnama were submitted into evidence. None of
the Nikahnamas submitted had been signed by either
party. In each of the Nikahnamas the amount promised
[the plaintiff] was $4815.40 and ‘half of the payment
was to be ‘‘prompt’’ and half ‘‘deferred.’’’ The [plaintiff]
seeks payment from [the defendant]. The [defendant]
remitted moneys to the [plaintiff] and to her family on
multiple occasions during their marriage. He contends
that the remittances satisfied any obligation he may
have had to pay a dowry or the amount promised to
the [plaintiff] or her family, pursuant to the Nikahnama.
The court finds that the [plaintiff] failed to prove by a
preponderance of evidence that [the] parties entered
into a valid marriage contract (Nikahnama), that the
[defendant] failed to pay the amount promised, and that
she is owed $4815.40 pursuant to the Nikahnama.’’
The joint stipulation of facts submitted to the court,
on which the plaintiff relies, states in relevant part:
‘‘At the time of the parties’ marriage, they executed a
[Nikahnama] or marriage deed, an essential component
of the Islamic marriage. The contract provided that half
of the payment was to be ‘prompt’ and half ‘deferred.’
The amount promised was . . . $4815.40.’’
At trial, three documents entitled ‘‘Nikahnama’’ were
introduced into evidence. These documents differed
with regard to certain key details, including the plain-
tiff’s date of birth and the date of the parties’ marriage.
Another document in evidence, which the parties
describe as a Nikahnama, is not written in English.
Significantly, none of these documents bore the signa-
tures of either party. The plaintiff asserts that the Nikah-
nama was a binding contract that required the payment
of $4815.40. At trial, the defendant testified that he had,
in fact, signed a Nikahnama that required the payment
of $4815.40 to the plaintiff.
We recognize that ‘‘[a] formal stipulation of facts by
the parties to an action constitutes a mutual judicial
admission and under ordinary circumstances should be
adopted by the court in deciding the case.’’ (Internal
quotation marks omitted.) Cantonbury Heights Condo-
minium Assn., Inc. v. Local Land Development, LLC,
273 Conn. 724, 745, 873 A.2d 898 (2005). Although, by
means of the joint stipulation, the defendant stipulated
that he had executed a Nikahnama, this does not mean
he stipulated to sufficient facts for the trial court to
find that the Nikahnama created a valid contract,
enforceable in this jurisdiction, between the parties, or
that he owed the plaintiff any moneys related to it.
Thus, the stipulation did not constitute an acknowledge-
ment by the defendant of a debt owed the plaintiff or
otherwise relieve the plaintiff of her burden of proving
that the Nikahnama created a valid, enforceable
contract.
The defendant suggests that if the Nikahnama was
enforceable under Islamic and Bangladeshi law, it
would limit the plaintiff’s recovery to $4815.40. Setting
aside the issues that necessarily would arise were a
court to consider treating the Nikahnama as a prenup-
tial agreement executed under relevant law; see Con-
necticut Premarital Agreement Act, General Statutes
§ 46b-36a et seq.; we do not find the court’s conclusions
unreasonable. The evidence reflected various docu-
ments entitled Nikahnama; all of them differed in terms
of key provisions, and none were signed by the parties.
Under these circumstances, the court properly deter-
mined that the plaintiff failed to demonstrate the exis-
tence of a valid contract.
Based on the record, we are persuaded that the court
did not improperly dismiss the existence of a joint stipu-
lation, but instead determined that based upon the evi-
dence, the stipulation, and the testimony before it, it
was unable to find that the plaintiff had proven by a
preponderance of the evidence the necessary elements
of a contract, thereby determining that the defendant
was not required to pay the $4815.40.
IV
This court recently held in Barcelo v. Barcelo, 158
Conn. App. 201, 118 A.3d 657, cert. denied, 319 Conn.
910, A.3d (2015), that upon a finding of an inher-
ently flawed order within a mosaic, it must determine
whether it was required to send all financial orders back
for reconsideration. The court in Barcelo highlighted its
adherence to the mosaic doctrine but noted that
‘‘[e]very improper order, however, does not necessarily
merit a reconsideration of all of the trial court’s financial
orders. A financial order is severable when it is not in
any way interdependent with other orders and is not
improperly based on a factor that is linked to other
factors. . . . In other words, an order is severable if
its impropriety does not place the correctness of the
other orders in question.’’ (Citation omitted; internal
quotation marks omitted.) Id., 226. In the present case,
in the absence of a proper basis for its decision or an
explanation as to why the eldest child was omitted from
the child support order, the court abused its discretion
in not correctly applying the law. In addition, the trial
court miscalculated the defendant’s gambling losses by
a significant amount, and abused its discretion by divid-
ing marital assets based on clearly erroneous factual
findings. As in Barcelo, we conclude that reversing the
court’s child support order in the present case inevitably
impacts all of the other financial orders and such an
order cannot be individually severed. See id., 227.
We are unable to determine whether the court’s finan-
cial orders would remain intact after the trial court
reconsiders its orders concerning child support and the
distribution of the parties’ assets.’ Therefore, the court
must, on remand, reconsider all of the financial orders.
Because we affirm as to the Nikahnama, the court need
not consider that issue on remand.
The judgment is reversed only as to all financial
orders and the case is remanded for further proceedings
consistent with this opinion. The judgment is affirmed
with respect to the finding that the Nikahnama was
unenforceable and in all other respects.
In this opinion the other judges concurred.
1
Regs., Conn. State Agencies § 46b-251a et seq.
2
The trial court defined a Nikahnama, referred to by the parties as a
marriage contract, as a marriage deed.
3
Due to the interest of the state of Connecticut in this action, the Attorney
General appeared as a party on September 7, 2011, pursuant to General
Statutes § 46b-55, and filed prayers of relief on July 6, 2012, and proposed
orders on April 18, 2013. There was no objection by either party to the
relief requested.
4
Additionally, the court found that the defendant has continually renewed
and maintained his taxi driver’s license since 1989, and it did not credit his
‘‘unsubstantiated testimony that he ceased to drive a taxi in 2013 due to
not being able to get into a taxi and alleged back pain.’’
5
In consideration of its orders, the court stated that prior to trial, a child
support order was entered on April 11, 2011. The defendant was ‘‘ordered
to pay $66.80 per week until a pendente lite arrearage of $918 had been
satisfied in full. A wage execution was issued to secure the payment. The
wage execution for the $66.80 per week continued long after the arrearage
had been satisfied in full. As of June 13, 2013, $7481.60 had been withheld
pursuant to the wage execution for the arrearage.’’ The court concluded
that the defendant overpaid his arrearage by $6563.60.
6
The court made the following postsecondary educational support orders:
‘‘The parties shall contribute to the postsecondary education of [the oldest
minor child] for a period of four academic years or until he has reached
the age of twenty-three. The [plaintiff] shall contribute ten (10%) percent
and the [defendant] shall contribute ninety (90%) percent of the cost of
[the child’s] college educational expenses for a four year degree, net of
scholarships or grants, subject to the limitation that said cost shall not
exceed the tuition for a full-time residential student at the University of Con-
necticut.’’
7
In the circumstances of this case, we need not consider in detail the
plaintiff’s claim that the child support order with respect to the younger
children deviated from the guidelines without explanation, because the
financial orders must be reconsidered by the trial court in their entirety.
8
The stipulation stated that ‘‘discovery provided to date shows the Defen-
dant’s gambling losses:
‘‘Mohegan Sun . . . $88,745
‘‘Foxwoods . . . $21,284
‘‘Total: $110,029.00 . . . .’’
In its decision, the trial court stated that the losses at the Mohegan Sun
Casino exceeded $88,000, and the losses at the Foxwoods Casino exceeded
$110,000. It then concluded that ‘‘there is an unknown but significant amount
of credit card debt in the [plaintiff’s] sole name, which she did not incur
and was not for their joint or household benefit.’’ It ordered the defendant
to pay all of these debts. The plaintiff argues, and this court agrees, that
even though the trial court instructed that the defendant would assume all
of the credit card debt, its error in stating the value of gambling losses may
have affected other financial orders.