Berger v. Finkel ( 2015 )

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LAUREN BERGER v. BRYAN FINKEL
(AC 36551)
DiPentima, C. J., and Keller and Mullins, Js.
Argued September 18—officially released November 17, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Calmar, J. [dissolution judgment];
Adelman, J. [motion for modification].)
George J. Markley, with whom was Christopher C.
Burdett, for the appellant (defendant).
Gary I. Cohen, with whom was Nicole DiGiose, for
the appellee (plaintiff).
Opinion
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 the dissolution court had used his earn-
ing capacity to fashion its support orders, and, on the
basis of this error, the court then improperly deter-
mined 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 writ-
ten 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 mat-
ters, 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. . . .
‘‘[General Statutes §] 46b-86 governs the modification
or termination of an alimony or support order after the
date of a dissolution judgment. When, as in this case,
the disputed issue is alimony [or child support], the
applicable provision of the statute is § 46b-86 (a), which
provides that a final order for alimony may be modified
by the trial court upon a showing of a substantial change
in the circumstances of either party. . . . Under that
statutory provision, the party seeking the modification
bears the burden of demonstrating that such a change
has occurred. . . . To obtain a modification, the mov-
ing party must demonstrate that circumstances have
changed since the last court order such that it would
be unjust or inequitable to hold either party to it.
Because the establishment of changed circumstances
is a condition precedent to a party’s relief, it is pertinent
for the trial court to inquire as to what, if any, new
circumstance warrants a modification of the existing
order. . . .
‘‘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 issues 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 modifica-
tion, 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
[General Statutes] § 46b-82 criteria, make an order for
modification. . . . The court has the authority to issue
a modification only if it conforms the order to the dis-
tinct and definite changes in the circumstances of the
parties.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Olson v. Mohammadu, 310
Conn. 665, 671–74, 81 A.3d 215 (2013).
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 §§ 46b-82 [a] and 46b-86] on the earning
capacity of the parties rather than on actual earned
income.2 . . . Earning capacity, in this context, is not
an amount which a person can theoretically earn, nor
is it confined to actual income, but rather it is an amount
which a person can realistically be expected to earn
considering such things as his vocational skills, employ-
ability, age and health. . . . When determining earning
capacity, it . . . is especially appropriate for the court
to consider whether [a person] has wilfully restricted
his [or her] earning capacity to avoid support obliga-
tions.’’ (Citations omitted; footnote added; footnote
omitted; internal quotation marks omitted.) Tanzman
v. Meurer, 309 Conn. 105, 113–14, 70 A.3d 13 (2013).
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
orders, and, on the basis of this error, the court then
improperly determined that the defendant failed to
prove a substantial change in circumstances, and also
failed to make any findings as to the defendant’s current
earning capacity.
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 earn-
ing 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 court ordered the defen-
dant 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 dissolu-
tion] trial, the defendant was employed full-time in Flor-
ida. 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 substan-
tially below Judge Calmar’s imputed earning capacity
of $116,000 annually . . . .’’
Early in the December 11, 2013 hearing on the defen-
dant’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
show me there’s been . . . some substantial change.
And . . . the initial effort will be to show me that [the
defendant], despite his best efforts, has not been able
to reach the income level . . . .’’ The defendant’s attor-
ney stated that he ‘‘certainly [did not] disagree at all
. . . .’’
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 employ-
ment 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 proceeds 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
capacity, like the plaintiff’s, will improve.’ [Judge
Calmar] obviously is referring to what he had just found
with respect to the [defendant’s] income when he . . .
referred to earning capacity.’’
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 defen-
dant’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 modifi-
cation and continued the proceedings to January 23,
2014, for additional evidence. At this hearing the defen-
dant 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 defendant’s motion for modifi-
cation 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 cir-
cumstances sufficient to warrant a hearing [for] a possi-
ble modification of the financial orders currently in
place.’’ The court discussed the law and the evidence
that the defendant 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 deter-
mined that Judge Calmar had used the defendant’s earn-
ing 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
judgment denying the motion for modification must be
reversed and the matter remanded to the trial court for
a new hearing on the defendant’s motion.
‘‘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 inten-
tion of the court as gathered from all parts of the judg-
ment. . . . 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).
The 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 remained in effect. In read-
ing 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 Octo-
ber, 2011. The court then specifically found the defen-
dant’s gross and net income for the entire year 2011,
and it directed each party to give to the other documen-
tation 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 ele-
ments that are required of a court relying on earning
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,
and, therefore, a court must specifically invoke the cri-
terion and specifically explain its justification for calcu-
lating a party’s child support obligation by virtue of the
criterion instead of by virtue of the procedures outlined
in the guidelines.’’ Fox v. Fox, 152 Conn. App. 611, 633,
99 A.3d 1206, cert. denied, 314 Conn. 945, 103 A.3d 977(2014). The dissolution court in this case did not cite
both the actual (or projected) 2011 earnings of the
defendant and his earning capacity, it did not set forth
a different presumptive support amount calculated with
the defendant’s actual net income and find that this
amount was inequitable, and it did not specifically
invoke the defendant’s earning capacity as a deviation
criterion in calculating the defendant’s child support
obligation. See footnote 2 of this opinion; see also Bar-
celo v. Barcelo, 158 Conn. App. 201, 215, 118 A.3d 657,
cert. denied, 319 Conn. 910, A.3d (2015). Had
the court used the defendant’s earning capacity rather
than his actual projected income, the court would have
been required to justify the use of such a criterion in
calculating child support.
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 defen-
dant’s actual projected income in establishing its sup-
port orders. We also are persuaded that this reading of
the 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 defen-
dant had testified on October 4, 2011, that he had earned
$95,500 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 capac-
ity, the figures and the language used by the court sup-
port a conclusion that the court accepted the
defendant’s testimony that he had earned $95,500
through October 4, 2011, and then projected the defen-
dant’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
earning capacity.
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 applicable 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 responsi-
bility of determining whether the defendant had estab-
lished 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 actual earnings. Because the court viewed the
defendant’s evidence under an inapplicable legal stan-
dard, 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 credi-
ble evidence of a change in circumstances because 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 prob-
lems 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 credibil-
ity determination. We have no way of assessing
whether, if reviewed under the proper standard, the
court would have credited this evidence as being suffi-
cient 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 modifi-
cation.6
In this opinion the other judges concurred.
1
The motion for modification also requested a modification of an August
20, 2012 order that concerned support arrearages owed by the defendant
to the plaintiff. This issue, along with several other motions and an appeal
from the judgment of dissolution were resolved by a stipulation of the parties
on May 9, 2013, which resulted, inter alia, in a withdrawal of that appeal.
2
‘‘Section 46b-215a-3 (b) of the Regulations of Connecticut State Agencies
lists the six criteria that may justify deviation from the presumptive support
amounts as, (1) other financial resources available to a parent that are not
included in the definition of net income, but could be used by such parent
for the benefit of the child or for meeting the needs of the parent, (2)
[e]xtraordinary expenses for care and maintenance of the child, (3) [e]xtraor-
dinary parental expenses . . . that are not considered allowable deductions
from gross income, but which are necessary for the parent to maintain a
satisfactory parental relationship with the child, continue employment, or
provide for the parent’s own medical needs, (4) [n]eeds of a parent’s other
of individuals other than the child whose support is being determined, (5)
[c]oordination of total family support when considerations involving the
division of assets, provision of alimony and tax planning will not result in
a lesser economic benefit to the child, and (6) [s]pecial circumstances
relating to reasons of equity, including shared physical custody, extraordi-
nary disparity in parental income, the best interests of the child and [o]ther
equitable factors.’’ (Internal quotation marks omitted.) Barcelo v. Barcelo,
158 Conn. App. 201, 212 n.7, 118 A.3d 657, cert. denied, 319 Conn. 910,
A.3d (2015).
3
‘‘Although the defendant’s 2009 income tax return reflected total income
of $328,120, only $73,745 of that was business income, and the remaining
portion was the result of the defendant’s liquidation of an [individual retire-
ment account] and pension assets.’’
4
In early October, 2011, however, the defendant had testified before the
dissolution court that his gross income for 2011 was $95,550.
5
Although we recognize that the memorandum of decision of the dissolu-
tion court also contained a sentence that stated that the court hoped that
the ‘‘earning capacity’’ of the parties would increase in the future, the entirety
of the court’s decision leads us to conclude that the court meant that it
hoped that the parties’ actual earnings would increase. See generally de
Repentigny v. de Repentigny, supra, 121 Conn. App. 462–63 (we read deci-
sion in entirety to ascertain meaning).
In its decision, the 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 insuffi-
cient 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.
6
We also note that the defendant should modify his written motion to
reflect his oral amendment.