LaBorne v. LaBorne

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RIITTA LABORNE v. JOHN C. LABORNE
(AC 39650)
Alvord, Bright and Beach, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court issuing
certain financial orders and finding in favor of the plaintiff on certain
postjudgment motions after the court granted the plaintiff’s motion to
open the judgment on the basis of fraud. The plaintiff’s motion to open
the judgment was based on the discovery that the defendant had failed
to disclose a pension and individual retirement account on his financial
affidavits at the time of dissolution. Held:
1. The trial court erred in failing to value the defendant’s pension as of the
date of the dissolution of the parties’ marriage; in the absence of any
exceptional intervening circumstances, the date a dissolution of mar-
riage is granted is the proper time to determine the value of the parties’
estate on which to base division, and the trial court improperly consid-
ered the dissipation of the asset after the dissolution judgment to consti-
tute such an exceptional circumstance, as a postdissolution diminution
of assets caused by market forces is not considered to be an exceptional
circumstance, nor could the wilful dissipation of assets by the defendant
in the context of the present case be considered such a circumstance.
2. The trial court erred in basing its alimony orders on the parties’ gross
income, rather than net income; in its memorandum of decision, the
court expressed its calculation and award of alimony in terms of gross
income, and although it made a finding as to the plaintiff’s net income
at the time of trial, it did not make a finding as to the defendant’s net
income and did not consider the plaintiff’s net income in its determina-
tion of alimony, which should be based on the available net income of
the parties, not gross income.
3. This court declined to address the plaintiff’s claim that the court erred
in concluding that the defendant was permitted to withdraw funds from
his retirement account for the purpose of paying alimony; the trial court
made that observation in its recitation of the factual history of the case,
the subject matter was related to its ultimate finding that the defendant
was in contempt, and because the plaintiff did not challenge or claim
error in the contempt order, any further discussion would be academic.
Argued October 24, 2018—officially released April 23, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court,
Emons, J.; judgment dissolving the marriage and grant-
ing certain other relief; thereafter, the court, Tindill,
J., granted the plaintiff’s motion to open the judgment;
subsequently, the matter was tried to the court, Colin,
J.; judgment for the plaintiff, from which the plaintiff
appealed to this court. Reversed; further proceedings.
Norman A. Roberts II, with whom, on the brief, was
Tara C. Dugo, for the appellant (plaintiff).
Opinion
BEACH, J. The plaintiff, Riitta LaBorne, appeals from
the judgment of the trial court rendered following a
postdissolution hearing. The plaintiff claims that the
court erred in (1) failing to value the parties’ assets as
of the date of the dissolution, (2) basing its alimony
orders on the parties’ gross income, rather than net
income, and (3) concluding that the defendant, John C.
LaBorne, was permitted to withdraw funds from his
retirement account for the purpose of paying alimony.
We agree and reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to our decision. The parties were married in 1990
and have two sons. During the pendency of the dissolu-
tion proceedings, initiated in 2010, both parties submit-
ted financial affidavits. In his affidavits, dated in 2011
and 2012, the defendant listed financial assets not
exceeding $2000.
On March 22, 2012, the court, Emons, J., dissolved
the parties’ marriage. In its judgment of dissolution, the
court ordered that the parties share legal custody of
their minor child. The court ordered the defendant to
‘‘pay to the plaintiff 35 [percent] of his gross annual
income in excess of $150,000 per year’’ and to provide
the plaintiff ‘‘unallocated alimony and child support in
the amount of $5500 per month.’’ The court awarded
all marital assets to the plaintiff.
In September, 2012, the plaintiff filed a postjudgment
motion for contempt in which she alleged that the defen-
dant failed to make that month’s required payment.
The defendant responded with a motion to modify the
orders regarding payments. The plaintiff amended her
motion for contempt and alleged that the defendant
had violated several additional court orders.
In the course of discovery on the pending motions,
the defendant produced a copy of his 2013 income tax
return, in which he reported that he withdrew $142,500
from an individual retirement account (IRA). After dis-
covering this asset, the plaintiff filed a motion to open
the judgment of dissolution on the basis of fraud. The
plaintiff alleged, in relevant part, that the defendant
never disclosed his IRA on any financial affidavit prior
to the dissolution judgment, that between 2013 and 2014
the defendant withdrew ‘‘more than $300,000 in liquid
assets’’ from his IRA, and that the defendant’s alleged
failure to disclose the IRA materially affected the court’s
orders.1 The plaintiff requested a preliminary hearing
and the right to conduct discovery in preparation
thereof.
While the motion to open was pending, the plaintiff
filed a motion requesting that the court order that the
defendant pay Meyers, Harrison & Pia, a forensic
accounting firm (accounting firm), for an analysis of
ary 12, 2015, the parties entered into a stipulation in
which they agreed that the defendant was not to with-
draw money from his IRA other than to pay alimony
or reimbursable expenses.2 The court, S. Richards, J.,
approved the stipulation. Thereafter, the court, Tindill,
J., granted the plaintiff’s motion to open the judgment
on the basis of fraud. The plaintiff filed a motion for
clarification, seeking to limit the scope of retrial to
‘‘discovery of and distribution of marital assets as of
the date of the dissolution of marriage . . . .’’ The court
denied this motion, stating that ‘‘[j]udgment is opened
as to all matters.’’
The plaintiff then filed a new motion requesting an
order that there be no withdrawals whatsoever from
the IRA prior to the retrial.3 The plaintiff indicated that
at retrial she would seek to have the IRA restored to
its value as of the date of the dissolution trial and to
be awarded the entire amount of the IRA.
On May 27, 2015, the court held a hearing on the
plaintiff’s motions for forensic accounting fees and to
prohibit any further withdrawals from the defendant’s
IRA until the issuance of court orders after retrial. After
hearing argument from counsel, the court granted the
plaintiff’s motion for forensic accounting fees. The
court then turned to the plaintiff’s motion regarding the
IRA. The defendant testified as to the current value of
his IRA, withdrawals he made from his IRA since enter-
ing into the January 12, 2015 stipulation, and the values
of his other assets and debts.
The court determined that since the parties entered
into the January 12, 2015 stipulation the defendant spent
$37,875 from his IRA. The court determined that $20,625
was withdrawn to pay alimony and $4403 was spent on
reimbursable expenses. The court further determined
that the defendant could not account for the approxi-
mately $3450 per month ($13,800 over four months)
that he had spent on personal living expenses. The court
orally granted the plaintiff’s motion to prohibit any fur-
ther withdrawals from the defendant’s IRA until the
court ruled on the matter at retrial.
Prior to the retrial of the dissolution financial orders,
the plaintiff requested that the accounting firm deter-
mine the amount the defendant withdrew from his IRA
between June 6, 2013, and December 31, 2015, and to
determine what the value of the IRA would have been,
had the funds not been withdrawn. The accounting firm
detailed its findings in a written report.
On July 29, 2016, the plaintiff filed a motion for con-
tempt alleging that the defendant failed to pay alimony
required for the month of July; she further alleged that
‘‘the [d]efendant will continue to fail and refuse to make
alimony payments to the [p]laintiff until [the] court
enters orders with respect to same.’’
On August 11 and 12, 2016, the court, Colin, J., con-
ducted a new hearing regarding the dissolution financial
orders and the plaintiff’s motions for contempt. The
plaintiff entered the accounting firm’s report into evi-
dence through one of its authors, Charles Strickland,
a certified forensic examiner. The accounting firm
reported that the defendant had participated in a pen-
sion plan through his employment with Credit Suisse
First Boston from May 5, 1986, to March 14, 2008, accru-
ing a single life annuity benefit of $6800 per month
beginning at age sixty-five. On May 15, 2013, a little
more than one year after the dissolution judgment was
entered and when he was fifty-one years old, the defen-
dant elected to receive an early distribution of his pen-
sion benefit. Consequently, the defendant’s monthly
annuity benefit was actuarially reduced from $6800
to $3075.31.
Instead of electing a monthly annuity form of pension
payment, however, the defendant elected to receive his
benefit in a lump sum of $635,537.41, and on June 6,
2013, the sum of $651,158.76, was deposited into an
IRA. Between then and December 31, 2015, the defen-
dant made withdrawals from the IRA totaling $511,050.4
In addition, the defendant lost $93,638.62 in option trad-
ing between June, 2013, and March, 2015. As of Decem-
ber 31, 2015, the balance in the IRA was $47,553.35.
On the basis of the financial affidavits he reviewed,
Strickland further opined that, as of the date of dissolu-
tion, the defendant had not disclosed his pension to
the plaintiff, nor had he disclosed his participation in
a 401 (k) plan5 offered through his employer, Credit
Suisse First Boston. The plaintiff testified that she had
not discovered that the defendant had a pension and
401 (k) assets until the defendant produced his tax
returns in connection with postdissolution proceedings.
The defendant claimed that after the plaintiff became
aware of the IRA, he used IRA funds to pay alimony
and other reimbursable expenses. He introduced his
2013 tax return, which showed that the defendant
received $142,500 in IRA distributions and paid $105,000
in alimony; his 2014 tax return, which stated that he
received $226,410 in IRA distributions and paid the
plaintiff $67,476 in alimony; his form 1099-R from 2015,
which showed that he received $142,140 in IRA distribu-
tions; and a list of checks he paid to the plaintiff in
2015, totaling $63,492, of which the defendant claimed
$58,450 was used for alimony and reimbursable
payments.
The court, in its memorandum of decision dated
August 17, 2016, credited Strickland’s testimony and
relied on the accounting firm’s report. The court found
that the defendant withdrew $511,050 from his IRA
between 2013 and 2015, and that the defendant’s deci-
sions to elect an early retirement benefit and to engage
in trading further reduced the value of the IRA. The
court also found that the defendant failed to disclose
his pension and 401 (k) benefits prior to the parties’
divorce in 2012. The court found that although some
of the payments to the plaintiff had been derived from
the defendant’s IRA, the defendant unilaterally had
spent the funds and that ‘‘the plaintiff can never be
made whole for her loss.’’
The court issued orders as to the division of the
remaining IRA funds: ‘‘The defendant shall transfer one
hundred percent (100%) of the value of his IRA to an
account designated by the plaintiff on or before Septem-
ber 15, 2016. The January 12, 2015 court order [prohib-
iting withdrawals except for alimony] is incorporated
by reference into this judgment and shall survive the
entry of this judgment.’’ The court ordered alimony
based on the gross earning capacities of both parties.6
The value of the IRA which was transferred was $46,326,
the amount remaining at the time of the retrial. As to
the motions for contempt, the court found that the
defendant had wilfully and intentionally failed to pay
alimony for the months of July and August, 2016, and
ordered the defendant to pay the plaintiff $8324 by
September 15, 2016. This appeal followed.
After filing the appeal, the plaintiff requested that the
court articulate, inter alia, the value of the defendant’s
IRA which was awarded to her and the date of the
valuation. The court articulated as follows: ‘‘The value
of the defendant’s accrued benefit in the undisclosed
pension as of the date of the initial decree was [$6800]
per month starting at the defendant’s age [sixty-five];
that benefit was reduced to [$3075.31] per month as a
result of the defendant’s early retirement, lump sum
election. This court credited the testimony of the plain-
tiff’s expert witness. Thus, this court considered the
value of the undisclosed asset at the time of the entry
of the initial dissolution decree.
‘‘The amount remaining in the defendant’s IRA at the
time of the trial in August of 2016 was $46,326; that
remaining amount was ordered to be transferred in its
entirety to the plaintiff. Thus, in addition to considering
the value of the pension at the time of the initial decree
in 2012, the court also considered the following excep-
tional intervening circumstances that occurred between
the date of the initial decree in 2012 and the 2016 trial
before this court; specifically, the defendant’s post-
divorce early retirement, lump sum election of the pre-
viously undisclosed pension, in the amount of approxi-
mately $635,000, the conversion of the asset, post-
divorce, from a pension to an IRA, and the defendant’s
payment to the plaintiff, from these funds, in the approx-
imate total amount of $235,968 in the years 2013, 2014
and 2015 (all paid to the plaintiff postdivorce).’’
I
The plaintiff’s principal claim is that the trial court
erred in failing to use the value of the defendant’s pen-
sion as of the date of their divorce in its determination
of the distribution of assets. We agree.
‘‘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’s findings of fact is governed by the
clearly erroneous standard of review. . . . [T]o con-
clude 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.’’ (Internal
quotation marks omitted.) Bruno v. Bruno, 132 Conn.
App. 339, 345–46, 31 A.3d 860 (2011).
‘‘[W]hether the court properly held that the appro-
priate date of valuation of the parties’ marital assets,
for purposes of the distribution of those assets, was
the date of its original decree . . . is well settled and
is controlled by our Supreme Court’s ruling in Sunbury
v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990),
in which the court held that, in a marital dissolution
action, the date of valuation of marital assets is the
date that the dissolution decree is rendered.’’ Light v.
Grimes, 136 Conn. App. 161, 166–67, 43 A.3d 808, cert.
denied, 305 Conn. 926, 47 A.3d 885 (2012).
In Sunbury, the plaintiff wife appealed to this court,
which remanded the case for a redetermination of finan-
cial orders after the trial court had incorrectly calcu-
lated the defendant husband’s income. Sunbury v.
Sunbury, supra, 216 Conn. 674–75. In the time period
following the original dissolution judgment, the value
of the husband’s profit sharing plan had quadrupled,
but the court used the value as of the original dissolution
in its financial orders on remand. Id., 675–76. The wife
appealed from the trial court’s new financial orders,
arguing that the court should have valued the parties’
assets as of the date of remand, and not as of the date
of dissolution. Id., 675.
In rejecting the wife’s claim, our Supreme Court held:
‘‘The division of property and the entry of orders of
alimony in dissolution proceedings are governed by
General Statutes §§ 46b-81 (a) and 46b-82. Section 46b-
81 (a) provides in part: ‘At the time of entering a decree
. . . dissolving a marriage . . . the superior court may
assign to either the husband or wife all or any part of the
estate of the other.’ . . . Similarly, § 46b-82 provides
in part: ‘At the time of entering the decree, the superior
court may order either of the parties to pay alimony to
the other . . . .’ The only temporal reference in the
enabling legislation refers us to the time of the decree
as controlling the entry of financial orders. It is neither
unreasonable nor illogical, therefore, to conclude that
the same date is to be used in determining the value
of the marital assets assigned by the trial court to the
parties. . . . Section 46b-81 (a) involves the assign-
ment of marital assets. To the extent that the plaintiff
seeks consideration of a postdecree appreciation in the
value of property, such appreciation, having occurred
after the termination of the marriage, is no longer a
marital asset.’’ (Citation omitted; emphasis in original.)
Id., 676.
This court has observed that ‘‘[i]n the absence of
any exceptional intervening circumstances, the date a
dissolution of marriage is granted is the proper time to
determine the value of the parties’ estate upon which
to base division. An increase in the value of property
following the date of dissolution does not constitute an
exceptional circumstance. . . . Logically, there is no
reason why the same date should not be used when
there has been a decrease in the value of property.’’
(Citation omitted.) Kremenitzer v. Kremenitzer, 81
Conn. App. 135, 139–40, 838 A.2d 1026 (2004); see Bruno
v. Bruno, supra, 132 Conn. App. 352–55 (dissolution
date proper valuation date for bank account even
though account value subsequently decreased); Watson
v. Watson, 221 Conn. 698, 702–703 n.2, 607 A.2d 383
(1992) (dissolution date proper valuation date despite
husband subsequently conveying interests in prop-
erties).
The accrued pension benefit was marital property
until the original dissolution judgment. See Sunbury v.
Sunbury, supra, 216 Conn. 676. The property, a financial
asset, was subject to distribution. The plaintiff argues
that by declining to fashion orders using the value of
the asset as of the dissolution date, the court, in essence,
did not account for a substantial amount of the mari-
tal assets.7
The court, however, suggested that exceptional
intervening circumstances justified the decision at the
retrial not to follow the prescribed course of valuing
the marital asset as of the time of dissolution and then
distributing that asset. As previously stated, the court
considered the dissipation of the asset after the dissolu-
tion judgment to constitute such an exceptional circum-
stance. A postdissolution diminution of assets caused
by market forces is not considered to be an exceptional
circumstance. See Kremenitzer v. Kremenitzer, supra,
81 Conn. App. 139–40. We fail to see how intentional
reduction of the asset could qualify. The wilful dissipa-
tion of assets by the defendant in the context of the
present case does not constitute such a circumstance.
The court erred, then, in concluding that the dissipation
of assets constituted an ‘‘exceptional intervening cir-
cumstance,’’ and in not entering an order distributing
the value of the asset as of the date of the original
judgment of dissolution.
II
The plaintiff next claims that the trial court erred in
basing its alimony orders on the parties’ gross income,
rather than net income. We agree.
As indicated previously in this opinion, the court,
after a new hearing on the dissolution financial matters,
entered the following order as to alimony: ‘‘[T]he plain-
tiff has a gross annual earning capacity of no less than
$20,000 and the defendant has a gross annual earning
capacity of no less than $100,000. Starting September
15, 2016, the defendant shall pay to the plaintiff . . .
the sum of $3000 in alimony until the death of either
party. This order is based on the earning capacities set
forth above. The defendant shall further pay to the
plaintiff an amount equal to 33 percent . . . of the
gross amount of any employment income that he earns
in excess of $100,000 per year . . . .’’
The court had before it the financial affidavits of
both parties. In its memorandum of decision, the court
expressed its calculation and award of alimony in terms
of gross income. The court made a finding as to the
plaintiff’s net income at the time of trial,8 but it did not
make a finding as to the defendant’s net income and
did not consider the plaintiff’s net income in its determi-
nation of alimony.
Ordinarily, net income is the proper basis for alimony
orders. ‘‘[I]t is well settled that a court must base its
child support and alimony orders on the available net
income of the parties, not gross income. . . . Whether
an order falls within this prescription must be analyzed
on a case-by-case basis. Thus, while 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 con-
text specific. . . . [W]e differentiate between an order
that is a function of gross income and one that is based
on gross income. . . . [T]he term based as used in this
context connotes an order that only takes into consider-
ation the parties’ gross income and not the parties’ net
income. Consequently, an order that takes cognizance
of the parties’ disposable incomes may be proper even
if it is expressed as a function of the parties’ gross
earnings.’’ (Citation omitted; emphasis in original; inter-
nal quotation marks omitted.) Procaccini v. Procaccini,
157 Conn. App. 804, 808, 118 A.3d 112 (2015). The court
in the present case did not calculate the financial orders
as a function of gross income but, rather, used only
gross income itself. The court erred, then, by basing
financial orders on gross income.
III
Finally, the plaintiff asks us to correct a statement
made by the trial court in its discussion of facts underly-
ing its conclusion that the defendant was in contempt,
ment of contempt. The court, in its memorandum of
decision, noted that ‘‘the defendant has failed to pay
to the plaintiff the alimony of [$4163] per month for
July and August of 2016. He has the funds to pay it. He
has a court ordered stipulation that authorizes him to
pay it from the IRA. He still failed to pay.’’ The plaintiff
claims that the defendant was prohibited from with-
drawing funds from the IRA for any purpose, so that
the court’s observation was erroneous. The plaintiff
correctly states that Judge Tindill, on May 27, 2015,
ordered that the defendant not withdraw money from
the IRA for any purpose.
We find it unnecessary to address the merits of the
plaintiff’s contention. The court made the observation
in the course of its recitation of the factual history of
the case. The subject matter was related to the court’s
ultimate finding that the defendant was in contempt,
and the court entered orders based on the finding of
contempt. The plaintiff does not claim error in the con-
clusions or orders regarding contempt. The trial court
did not modify or negate Judge Tindill’s May 27, 2015
order, which remained in effect. Further discussion is
academic, because the plaintiff is not appealing from
a judgment as to this issue. See General Statutes § 52-
263; Rosado v. Bridgeport Roman Catholic Diocesan
Corp., 276 Conn. 168, 194, 884 A.2d 981 (2005) (‘‘the
statutory right to appeal is limited to appeals by
aggrieved parties from final judgments’’); McCallum v.
Inland Wetlands Commission, 196 Conn. 218, 225, 492
A.2d 508 (1985), superseded on other grounds by Pau-
pack Development Corp. v. Conservation Commission,
229 Conn. 247, 640 A.2d 70 (1994).
The judgment is reversed and the case is remanded
for a new trial on the issues of financial orders and
property distribution.
In this opinion the other judges concurred.
1
The plaintiff’s motion to open the judgment on the basis of fraud alleged,
in part: ‘‘In conjunction with [the defendant’s] motion for modification of
alimony, the defendant produced his tax return for 2013, which showed that
he withdrew $142,000 from an IRA. Moreover, during 2014, [the] defendant
has withdrawn another $196,000 from his IRA . . . . No individual retire-
ment account was disclosed on any financial affidavit submitted to the
court; indeed, the defendant submitted financial affidavits and represented
to the plaintiff and the court that he was insolvent. [The] plaintiff herself
had no knowledge of the existence of an IRA . . . .The failure to disclose
the existence of an account [with] more than $300,000 in liquid assets is
clearly fraudulent, there is a likelihood amounting to virtual certainty that
the existence of this fund, had it been disclosed, would change the result
of the court’s decision, and the plaintiff has not delayed in filing this motion
since learning of the existence of these funds, which were uncovered less
than three weeks prior to the date hereof . . . .’’
2
The stipulation provided in relevant part: ‘‘The parties agree that the
[d]efendant shall not withdraw money from his IRA, with the exception of
money used to pay his current alimony obligation to the [p]laintiff and his
share of reimbursables as required by the March 22, 2012 orders issued by
Judge Emons. . . . The [d]efendant [represents] there is currently $185,423
on hand in the IRA.’’
3
The plaintiff’s motion requested, in relevant part, a court order that ‘‘no
portion of [the defendant’s IRA] funds shall be withdrawn until the [c]ourt
decides to whom it should be awarded at a retrial of this case . . . .’’
4
The plaintiff, in her brief, notes that, according to the accounting firm’s
report, in the time period from May 27, 2015, when the court ordered that
no further withdrawals be made from the IRA, to December 31, 2015, the
defendant made sixteen withdrawals totaling $100,003.
5
The accounting firm’s report does not analyze the 401 (k) account, and
the court’s memorandum of decision refers to a nondisclosed ‘‘smaller 401
(k) account’’ only in passing. Both the court and the accounting firm’s report
trace the financial history of the pension entitlement and the succeeding
IRA only. The plaintiff has not included in her brief any separate claim as
to the 401 (k). We therefore have neither the need nor the record to analyze
any issue concerning the 401 (k) plan.
6
The memorandum of decision provides in relevant part: ‘‘[T]he plaintiff
has a gross annual earning capacity of no less than $20,000 and the defendant
has a gross annual earning capacity of no less than $100,000. Starting Septem-
ber 15, 2016, the defendant shall pay to the plaintiff, on or before the fifteenth
day of each month, the sum of $3000 in alimony until the death of either
party. This order is based on the earning capacities set forth above. The
defendant shall further pay to the plaintiff an amount equal to thirty-three
percent (33%) of the gross amount of any employment income that he earns
in excess of $100,000 per year within five business days of his receipt of
any employment income in excess of $100,000.’’
7
On this point, the plaintiff notes that in Oldani v. Oldani, 154 Conn.
App. 766, 108 A.3d 272, cert. denied, 315 Conn. 930, 110 A.3d 433 (2015),
this court held that valuation of the couples’ jointly held marital home on
a date other than the dissolution was not reversible because the plaintiff
failed to show how he was harmed by that decision. The plaintiff argues
that she, on the other hand, suffered harm as a result of the court’s failure
to value the IRA as of the date of dissolution. We agree; furthermore, unlike
the accrued pension benefit in the present case, which was exclusively held
by the defendant, Oldani concerned an asset that the parties owned in equal
shares. See id., 774–75.
8
The court found that the plaintiff’s net income at the time of trial was
$88 per month. The court based its award of alimony on its finding of a
gross earning capacity of no less than $20,000 per year.