Ferraro v. Ferraro , 168 Conn. App. 723 ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
CHRISTINE L. FERRARO v. DAVID FERRARO, JR.
(AC 38082)
DiPentima, C. J., and Keller and Mullins, Js.
Argued May 23—officially released October 4, 2016
(Appeal from Superior Court, judicial district of New
Britain, Shah, J.)
John F. Morris, for the appellant (defendant).
Michael D. Day, for the appellee (plaintiff).
Opinion
KELLER, J. In this marital dissolution action, the
defendant, David Ferraro, Jr., appeals from the judg-
ment of the trial court with respect to the court’s finan-
cial orders. The defendant claims that the court
improperly (1) made factual findings with respect to
his net income without evidentiary support, and (2)
entered an order regarding expenses for the minor chil-
dren’s extracurricular activities when neither he nor
the plaintiff, Christine L. Ferraro, had requested such
an order. We agree with the defendant and, accordingly,
reverse in part the judgment of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s appeal. The court dissolved the
parties’ twenty-one year marriage on May 6, 2015. At
the time of the dissolution, the parties had two minor
children, ages fifteen and thirteen. In its memorandum
of decision, the court found that the marriage had bro-
ken down irretrievably and attributed ‘‘greater responsi-
bility to the plaintiff’’ for ‘‘the collapse of their marital
union . . . .’’1 The parties’ custody and parenting
agreement was approved by the court, Morgan, J., prior
to the beginning of the two day trial, and was incorpo-
rated by reference into the judgment of dissolution by
the court, Shah, J. With respect to the remaining issues,
the court entered financial orders for child support,
alimony, and the division of property. The plaintiff was
awarded periodic alimony for a period of twelve years.
The defendant was ordered to pay $500 per week for
the first two years and $450 per week for the remaining
ten years. The defendant was ordered to pay child sup-
port in the amount of $310 per week in accordance
with the child support guidelines worksheet dated April
28, 2015, which had been prepared by or at the direction
of the court. The alimony and child support orders were
based on the court’s factual findings that the defen-
dant’s weekly net income was $1408, and the plaintiff’s
imputed weekly net income was $428.2 In addition to
other orders relating to, inter alia, health insurance,
unreimbursed medical and dental expenses, and the
division of the defendant’s pension benefits, the court
entered an order for the sharing of expenses for the
children’s extracurricular activities.
The defendant filed a motion for reconsideration and
reargument on May 18, 2015, claiming that the court’s
orders were ‘‘inconsistent with the evidence’’ and failed
to leave the defendant with sufficient income for his
living expenses. The defendant additionally claimed
that the order for extracurricular activity expenses was
improper because neither party had requested such an
order. The court denied the defendant’s motion without
explanation. This appeal followed.
The defendant filed his appeal on June 25, 2015. On
July 29, 2015, the defendant filed a motion for articula-
tion, requesting, inter alia, that the trial court articulate
(1) the reason for using a child support guidelines work-
sheet prepared by a family services supervisor to deter-
mine net income rather than the evidence submitted
by the parties at trial, (2) the evidential sources for the
court’s ‘‘figures used for taxes and deductions,’’ and (3)
the reason the court failed to include its alimony award
as an income source for the plaintiff when it calculated
how the uninsured health care costs for the minor chil-
dren were to be divided between the parties.
On September 4, 2015, the court granted the defen-
dant’s motion and provided the following articulation
of its orders: (1) ‘‘the court had the appropriate child
support guidelines worksheet . . . prepared based on
evidence and testimony provided at trial’’; (2) ‘‘the court
based all of its findings on evidence and testimony
provided at trial, including the financial affidavits pro-
vided by the parties . . . and used family law software
provided by the judicial branch’’ as sources for the
figures on the worksheet for taxes and deductions; and
(3) upon further review of the court’s worksheet, the
court ‘‘modifie[d]’’ its orders with respect to the alloca-
tion of unreimbursed medical expenses. Attached to
the court’s September 4, 2015 order was a child support
guidelines worksheet dated September 4, 2015, which
included assumptions regarding the number of personal
and dependent exemptions for each party, itemized
deductions, refundable credits and tax deductions. The
defendant did not file a motion for review of the trial
court’s articulation with this court, nor did he amend
his appeal to include an issue relative to the court’s
modification of the original judgment of dissolution in
the September 4, 2015 articulation.3
‘‘The standard 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 pre-
sented. . . . 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. . . . Appellate review
of a trial court’ 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. . . . Therefore, to conclude
that the trial court abused its discretion, we must find
that the court either incorrectly applied the law or could
not reasonably conclude as it did.’’ (Citation omitted;
internal quotation marks omitted.) Mensah v. Mensah,
145 Conn. App. 644, 651–52, 75 A.3d 92 (2013).
‘‘We next note that our review of financial orders
entered by a trial court in a dissolution matter is gov-
erned by the mosaic doctrine. Under the mosaic doc-
trine, financial orders should not be viewed as a
collection of single disconnected occurrences, but
rather as a seamless collection of interdependent ele-
ments. Consistent with that approach, our courts have
utilized the mosaic doctrine as a remedial device that
allows reviewing courts to remand cases for reconsider-
ation of all financial orders even though the review
process might reveal a flaw only in the alimony, prop-
erty distribution or child support awards.’’ (Internal
quotation marks omitted.) Valentine v. Valentine, 149
Conn. App. 799, 803, 90 A.3d 300 (2014).
I
The defendant’s first claim is that the court improp-
erly made factual findings with respect to his net income
without evidentiary support. Specifically, the defendant
argues that the court based its factual finding of his
weekly net income ‘‘on a child support guidelines work-
sheet created after the close of evidence, using informa-
tion not found in the evidence.’’ The court’s May 6, 2015
memorandum of decision refers to the April 28, 2015
worksheet, although it does not identify the author of
the worksheet. The worksheet itself, which was not
appended to the decision, indicates that it was ‘‘pre-
pared by Connecticut Judicial Service Center.’’ The
defendant maintains that the court relied on calcula-
tions generated by a software program posttrial, and
not on the evidence submitted in the parties’ financial
affidavits or evidence presented at trial, so that he had
no opportunity to present evidence to challenge or rebut
the court’s calculations.4
It is undisputed that the court relied on the April 28,
2015 worksheet in determining the weekly net incomes
of the parties. It also is evident, from a careful review
of the parties’ testimony, financial affidavits and the
exhibits submitted at trial, that the figures in the work-
sheet do not match the figures provided by the parties
at trial. The defendant’s April 14, 2015 financial affidavit
showed a net weekly income of $1077.10 after his man-
datory deductions. The court, using different figures
for the defendant’s federal and state income tax deduc-
tions, found that the defendant’s net weekly income
was $1408. There is no explanation, in the court’s May
6, 2015 memorandum of decision or the court’s Septem-
ber 4, 2015 articulation, as to how the court arrived at
its figures or the basis for the court’s failure to use the
figures submitted at trial. The court’s figures are not
identified as to origin or explained as to content. In
scrutinizing the attachments to the court’s articulation,
which were provided months after the judgment of dis-
solution was rendered, it appears that the court sua
sponte made various assumptions regarding standard
and itemized deductions, medical expenses and child
credits. From the record, it is clear that the defendant
had no opportunity to challenge or rebut the court’s
assumptions and calculations.
The alimony and child support orders entered by the
court were based on its factual findings as to the weekly
net income of the parties. ‘‘It is well settled that a court
must base child support and alimony orders on the
available net income of the parties, not gross income.’’
(Internal quotation marks omitted.) Tuckman v. Tuck-
man, 308 Conn. 194, 209, 61 A.3d 449 (2013). ‘‘[W]hile
our decisional law in this regard consistently affirms
the basic tenet that support and alimony orders must
be based on net income, the proper application of this
principle is context specific.’’ Hughes v. Hughes, 95
Conn. App. 200, 204, 895 A.2d 274, cert. denied, 280
Conn. 902, 907 A.2d 90 (2006). Although the child sup-
port guidelines ‘‘create a legal presumption as to the
amount of child support payments . . . the figures
going into that calculation on the worksheet must be
based on some underlying evidence.’’ (Citation omit-
ted.) Aley v. Aley, 101 Conn. App. 220, 228–29, 922 A.2d
184 (2007). ‘‘A court may not rely on a worksheet unless
it is based on some underlying evidence.’’ (Internal quo-
tation marks omitted.) Barbour v. Barbour, 156 Conn.
App. 383, 391, 113 A.3d 77 (2015). In the present case,
the court’s figures do not match the figures on the
parties’ financial affidavits. Moreover, there was no tes-
timony or other evidence presented at trial with respect
to alternate federal and state tax calculations, exemp-
tions, deductions or credits. Simply put, there is nothing
in the underlying evidence to support the court’s figures
in the worksheet.5
In the court’s articulation, it states that it relied on
the ‘‘evidence and testimony provided at trial, including
the [parties’] financial affidavits’’ in calculating the
amount of the defendant’s weekly net income. This
statement is not supported, however, by the figures
provided in those affidavits when compared with the
court’s April 28, 2015 worksheet, and by a review of
the testimony at trial and the exhibits submitted to the
court. The figures do not match and, although the court
is free to credit or discredit some or all of a witness’
evidence; Giulietti v. Giulietti, 65 Conn. App. 813, 878,
784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d
95, 96, 97 (2001); the court still must provide a basis
for the determinations that it makes as supported by
the underlying evidence.
It is possible that the court, in selecting the figures
used for the calculation of net income, took judicial
notice of the Internal Revenue Code, the tax tables
or some other relevant depository of information. The
court did not indicate, however, either in its memoran-
dum of decision or in its articulation, that it had taken
judicial notice of any supplemental information in
reaching its determinations. If the court did take judicial
notice of certain facts, it should have notified the parties
that it intended to do so and provided them with the
opportunity to be heard.6
‘‘Notice to the parties is not always required when a
court takes judicial notice. Our own cases have
attempted to draw a line between matters susceptible
of explanation or contradiction, of which notice should
not be taken without giving the affected party an oppor-
tunity to be heard . . . and matters of established fact,
the accuracy of which cannot be questioned, such as
court files, which may be judicially noticed without
affording a hearing.’’ (Citations omitted.) Moore v.
Moore, 173 Conn. 120, 121–22, 376 A.2d 1085 (1977).
‘‘There are two types of facts considered suitable for
the taking of judicial notice: those which are ‘common
knowledge’ and those which are ‘capable of accurate
and ready demonstration.’ McCormick, Evidence (2d
Ed.) § 330, p. 763. Courts must have some discretion
in determining what facts fit into these categories. It
may be appropriate to save time by judicially noticing
borderline facts, so long as the parties are given an
opportunity to be heard.’’ Id., 123 n.1. There also is a
distinction between ‘‘legislative facts,’’ those which help
determine the content of law and policy, and ‘‘adjudica-
tive facts,’’ those concerning the parties and events of
a particular case. The former may be judicially noticed
without affording the parties an opportunity to be
heard, but the latter may not, at least if they are central
to the case. See Izard v. Izard, 88 Conn. App. 506,
509–510, 869 A.2d 1278 (2005).
In the present case, the court did not state whether
it had taken judicial notice of certain facts to make its
determination with respect to the defendant’s weekly
net income. If it did, it is not possible to determine,
without speculation, the facts that were judicially
noticed and how the court’s calculations incorporated
that information. What is known is that the court pre-
pared its own child support guidelines worksheet, but
did not attach that worksheet to its May 6, 2015 memo-
randum of decision. The defendant filed a motion for
reconsideration and reargument, but the court denied
that motion without explanation. The court did attach
the worksheet to its September 4, 2015 articulation, but
the parties were never notified of the judicially noticed
facts upon which the court relied nor were they pro-
vided with an opportunity to challenge or rebut the
court’s calculations.
In summary, the court’s finding as to the defendant’s
weekly net income is without evidentiary support. The
federal and state tax deduction figures used by the court
to determine net income, as reflected in its April 28,
2015 child support guidelines worksheet, did not come
from the parties’ testimony at trial, the exhibits submit-
ted, or the parties’ financial affidavits. There is no evi-
dentiary basis for the court’s determination. If the court
took judicial notice of supplemental information, it pro-
vided no notice to the parties that it was doing so, nor
did it provide them with an opportunity to challenge
or rebut that information. Accordingly, the court abused
its discretion, and we must remand the matter for a
new hearing.
II
The defendant’s next claim is that the court improp-
erly entered an order regarding extracurricular activity
expenses for the minor children when neither party had
requested such an order.7 Specifically, the defendant
argues that the court, in its order,8 did not set any limit
on the cost of the activities, ‘‘thereby creating an open
ended obligation.’’ He claims the order was entered
without any basis because no party requested it and
there was no evidentiary support for it. We agree.
As previously noted, the parties stipulated to terms
in a custody and parenting agreement that was
approved by the court and incorporated by reference
into the judgment of dissolution.9 There is no provision
in that agreement that addresses the extracurricular
activities of the minor children. Further, in the financial
affidavits submitted by the plaintiff and the defendant,
no expenses are listed for extracurricular activities.
Each party submitted proposed orders to the court,
and neither party requested an order with respect to
extracurricular activity expenses. A review of the tran-
script of the two day trial reveals that no testimony
was presented as to the extracurricular activities under-
taken by the children, let alone what the expenses of
such activities would be. Simply put, there is no evi-
dence supporting the need for an order that allocates
the expenses of extracurricular activities between
the parties.
We conclude, therefore, that the court abused its
discretion in fashioning its financial orders. Accord-
ingly, we remand the case for a new hearing on all
financial issues.
The judgment is reversed only with respect to the
financial orders and the case is remanded for a new
hearing on all financial issues; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
The court made the following finding in its memorandum of decision:
‘‘The breakdown of the marriage is due to several reasons, including, among
other causes, the plaintiff’s jealousy and financial mismanagement and the
defendant’s anger, and both parties bear responsibility for the collapse of
their marital union, although the court attributes greater responsibility to
the plaintiff for the numerous yet unsubstantiated allegations of infidelity
and abuse and the stress that caused the relationship between not only the
parties but between the children and the defendant . . . .’’
2
The plaintiff had worked from the beginning of the parties’ marriage
until 2011. She was unemployed when she commenced the present action
on May 8, 2014. On August 21, 2014, the court, Alander, J., ordered the
plaintiff to seek employment, to document her efforts, and to report back
to the court on September 18, 2014. She then worked for a period of two
weeks in 2014, but was terminated from her employment for excessive absen-
teeism.
In its memorandum of decision, the court made the following finding:
‘‘Despite being under court order, the plaintiff has failed to maintain employ-
ment and has not provided any credible evidence of reasonable efforts to
obtain employment.’’ Accordingly, ‘‘[b]ased upon the plaintiff’s work history
and her recent employment, the plaintiff has the ability to work full-time
at a rate of $11.50 hourly . . . and [the court] imputes such earning capacity
to the plaintiff.’’
3
For this reason, we do not consider one of the defendant’s claims raised
in this appeal. The defendant argues that the court improperly modified the
judgment in its September 4, 2015 articulation. Citing Koper v. Koper, 17
Conn. App. 480, 484, 553 A.2d 1162 (1989), for the principle that ‘‘[a]n
articulation is not an opportunity for a trial court to substitute a new decision
nor to change the reasoning or basis of a prior decision,’’ the defendant
claims that the court’s sua sponte modification of the order in the judgment
with respect to the allocation of unreimbursed medical expenses for the
minor children was improper. Aside from the fact that the sua sponte modifi-
cation actually benefitted the defendant by reducing his share of the costs,
the defendant failed to preserve the issue for this appeal, and we decline
to review it. See Webster Trust v. Mardie Lane Homes, LLC, 93 Conn. App.
401, 402 n.3, 891 A.2d 5 (2006).
4
One of the defendant’s claims is that the trial court delegated the creation
of the April 28, 2015 worksheet to a third party, thereby resulting in ‘‘an
improper delegation of a fundamental judicial function.’’ We are not per-
suaded.
‘‘It is well settled authority that [n]o court in this state can delegate its
judicial authority to any person serving the court in a nonjudicial function.
The court may seek the advice and heed the recommendation contained in
the reports of persons engaged by the court to assist it, but in no event may
such a nonjudicial entity bind the judicial authority to enter any order or
judgment so advised or recommended.’’ (Internal quotation marks omitted.)
Nashid v. Andrawis, 83 Conn. App. 115, 120, 847 A.2d 1098, cert. denied,
270 Conn. 912, 853 A.2d 528 (2004).
In the court’s September 4, 2015 articulation, it stated that it ‘‘had the
. . . worksheet . . . prepared’’ using the evidence and testimony presented
at trial. Further, the court stated that it based its findings on the evidence
and testimony presented at trial, including the parties’ financial affidavits,
and that it ‘‘used family law software provided by the judicial branch . . . .’’
There is nothing in the record that indicates that the court did not select
the figures inputted into the computer program for the calculations on
the worksheet.
5
The plaintiff argues that the court was not obligated to accept the defen-
dant’s representations on his April 14, 2015 financial affidavit as to his
federal and state tax deductions, and that the court could have concluded,
from the defendant’s testimony at trial with respect to tax refunds, that he
was overwithholding. This argument is not persuasive because the court,
which did not explain the figures used in its calculations, did not even
mention tax refunds in its memorandum of decision.
The defendant testified that he and the plaintiff received a $10,000 refund
in 2013 for the tax year 2012, when the parties were an intact family and filed
jointly. He testified that they used the money to pay household expenses. The
defendant also testified that he was entitled to a tax refund in 2014, but
that the money went directly to the state to satisfy a lien filed against him
by the state to reimburse monetary assistance paid to the plaintiff. The
evidence at trial revealed that the plaintiff had applied for and received
more than $11,000 of state assistance during the term of the marriage on
the basis of her claim that the defendant was not supporting her and the
children. At trial, the defendant submitted bank statements that he countered
proved that he regularly had been providing for his family’s support. In any
event, the amount of the 2014 refund never was disclosed, nor was there any
testimony about the amounts of tax refunds, if any, received in prior years.
6
Section 2.2 (b) of the Connecticut Code of Evidence provides: ‘‘The court
may take judicial notice without a request of a party to do so. Parties are
entitled to receive notice and have an opportunity to be heard for matters
susceptible of explanation or contradiction, but not for matters of estab-
lished fact, the accuracy of which cannot be questioned.’’
In this case, the figures used by the court plainly contradicted the figures
in the financial affidavits submitted at the time of trial.
7
Although our disposition of the defendant’s first claim disposes of this
appeal, we will address his second claim because it is likely to arise on
remand.
8
The court entered the following order: ‘‘The parties shall discuss, in
advance, any extracurricular activity, enrichment program and/or summer
camp activities for the benefit of the minor children. Only such activities
as may be agreed upon by the parties shall be considered an approved
activity for enforcement of these orders, but neither party may unreasonably
withhold his or her approval. The cost of all approved activities will be
shared equally by the parties. Any activity not approved by both parties
may still be engaged in by the child, on the following two conditions: (1)
the cost is covered entirely by the party approving the activity; and (2) the
activity does not interfere with the parenting access time of the other parent.’’
9
We note that the custody and parenting agreement expressly provides
that it constitutes ‘‘a final resolution of [the parties’] parenting issues.’’
Moreover, the agreement contains a paragraph regarding participation in
family therapy and provides that the parties are to share the costs of such
therapy in accordance with the child support guidelines. If the parties wanted
the court to enter an order with respect to the allocation of expenses for
extracurricular activities, this agreement would have provided the logical
procedural vehicle for such a request.