Zaniewski v. Zaniewski

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MALGORZATA ZANIEWSKI v. CEZARY ZANIEWSKI
(AC 39903)
Lavine, Prescott and Elgo, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and issuing certain financial
orders. The defendant claimed that the trial court improperly failed to
use the parties’ net incomes in calculating its orders of child support
and alimony, ordered the defendant to pay alimony in an amount that
exceeded his ability to pay, and abused its discretion by crafting inequita-
ble property distribution and alimony orders. Held that under the unique
circumstances of this case, equity required a new trial on all financial
matters; where, as here, the trial court’s memorandum of decision was
devoid of any relevant factual findings, and the court made no findings
regarding the value of any marital assets or the respective financial
circumstances of the parties, including their income or earning potential,
provided no analysis or rationale for its division of the marital property
or its other financial orders, did not indicate whether either party was at
fault for the breakdown of the marriage and made no explicit credibility
determinations regarding the testimony of witnesses, it was not possible
to ascertain, without engaging in speculation, what path the court fol-
lowed in crafting its support orders and dividing the marital assets, and
because the defendant did all that could reasonably be expected of him
to obtain an articulation of the factual findings necessary to obtain
review of the financial orders but was thwarted, through no fault of his
own, due to the retirement of the trial judge, it would be against the
interests of justice to apply mechanistically a presumption of correctness
of the court’s support orders, which presumption has been applied in
cases in which the appellant raised claims in the face of an inadequate
factual record and did not resort to available procedural tools to perfect
the record.
Argued January 17—officially released June 4, 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 New Britain, and tried to the court, Pinkus, J.;
judgment dissolving the marriage and granting certain
other relief, from which the defendant appealed to this
court; thereafter, the court, Connors, J., denied the
defendant’s motion for articulation; subsequently, this
court granted the defendant’s motion for review but
denied the relief requested therein. Reversed in part;
further proceedings.
James E. Mortimer, for the appellant (defendant).
Katarzyna Maluszewski, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendant, Cezary Zaniewski,
appeals from the judgment of the trial court dissolving
his marriage to the plaintiff, Malgorzata Zaniewski. The
defendant claims on appeal that the court improperly
(1) failed to use the parties’ net incomes in calculating
its orders of child support and alimony, (2) ordered the
defendant to pay alimony in an amount that exceeds his
ability to pay, and (3) abused its discretion by crafting
inequitable property distribution and alimony orders
that ‘‘excessively and unjustifiably favored the
plaintiff.’’
The trial court’s memorandum of decision fails to set
forth the factual basis for its financial orders. The trial
judge who authored the decision retired shortly after
issuing its decision, rendering fruitless the defendant’s
proper and timely efforts to remedy the decision’s lack
of findings in order to secure appellate review of his
claims. In many cases, an inadequate record would fore-
close appellate review of an appellant’s claim. Neverthe-
less, the inadequacy of the record in the present case
arises not from any fault attributable to the defendant,
but from the trial court’s issuance of a memorandum
of decision that contained virtually no factual findings
that would permit us to review appropriately the defen-
dant’s appellate claims. Although we are cognizant that
the trial court is entitled to great deference in crafting
financial orders in marital dissolution actions, we never-
theless conclude under the unique circumstances pre-
sented here that equity requires a new trial. Accordingly,
we reverse the judgment of the trial court with respect
to the financial orders and order a new trial.
The matter was tried before the court over the course
of three days, ending on November 22, 2016. On Novem-
ber 25, 2016, the court issued a four page memorandum
of decision dissolving the parties’ marriage on the basis
of irretrievable breakdown.
The trial court’s decision contains only the following
uncontested facts. The parties were married in New
York in 2005. They have two minor daughters who were
issue of the marriage.1 In January, 2016, the plaintiff,
who had resided in Connecticut for at least one year,
commenced the underlying action for dissolution of
marriage.
The memorandum is devoid of any relevant factual
findings, and the court’s legal analysis is limited to the
following statement: ‘‘The court listened to and
observed witnesses, and reviewed the exhibits. In addi-
tion, the court carefully considered the criteria set forth
in the Connecticut General Statutes in reaching the
decisions reflected in the orders below.’’ The court did
not discuss the respective financial circumstances of
the parties, including any findings regarding their
income or earning potential. The court made no findings
with respect to the value of any marital assets, and
provided no analysis or rationale for its division of the
marital property or its other financial orders. The court
did not indicate whether either party was at fault for
the breakdown of the marriage or shared fault. The
court made no explicit credibility determinations
regarding the testimony of witnesses. Although the
plaintiff claims that completed child support guideline
worksheets were provided to the court by the parties,
she concedes that they were never made a part of the
record. There are no completed child support guideline
worksheets in the trial court file.
The remainder of the court’s decision consists of
nineteen, separately numbered orders. In addition to
orders dissolving the parties’ marriage and incorporat-
ing by reference the parties’ parenting plan,2 the court
ordered the defendant to pay the plaintiff ‘‘$204 per
week as child support in accordance with the child
support guidelines’’ and ‘‘$100 per week as alimony for
a period of three years from the date of [the] judgment
. . . [to] terminate upon the death of either party or
the plaintiff’s remarriage . . . [and] subject to the pro-
visions of [General Statutes] § 46b-86 (b).’’ The parties
were ordered to share equally in the cost of their chil-
dren’s extracurricular activities and healthcare. The
court awarded the parties’ delicatessen business and
marital residence in Plainville to the plaintiff without
assigning a value to those assets, and ordered the defen-
dant to sign all necessary paperwork to transfer his
interest in those properties to the plaintiff. The court
allowed the defendant to retain ‘‘any interest he may
have’’ in a rental property owned by his family in
Queens, New York. The court did not identify what
interest, if any, the defendant had in the property or
assign a value to that interest, although the record indi-
cates that these issues were hotly contested at trial.
The court ordered that the parties be responsible for
the debts listed on their respective financial affidavits,
with the exception of the balance on two credit cards,
for which they would be equally responsible. Each party
was awarded whatever personal property currently was
in his or her possession, including automobiles, and
each was permitted to retain his or her own bank
accounts except for certain joint accounts with Farm-
ington Bank, which were awarded to the plaintiff. The
court also ordered that it would ‘‘retain jurisdiction
over educational support orders pursuant to [General
Statutes] § 46b-56c.’’
The defendant timely appealed from the dissolution
judgment on December 15, 2016. On June 23, 2017, the
defendant filed a motion for articulation in accordance
with Practice Book § 66-5. The defendant asked the trial
court to articulate its factual findings regarding, among
other things, the parties’ respective gross incomes,
which were in dispute, and what value it had assigned
to their various assets and liabilities. The defendant
also asked the court to indicate whether it found the
parties’ financial affidavits or trial testimony credible
with respect to these matters.
The defendant also made several requests for articu-
lation related to the New York rental property purport-
edly owned by his family. In particular, he sought to
have the trial court articulate the factual basis for
determining that he had retained any interest in the
New York property,3 what interest, if any, it found he
had retained in the property, and whether the court
had credited an appraisal of the property that was
entered into evidence. These requests for articulation
all related to the defendant’s principal claims on appeal
that the trial court improperly calculated the alimony
and child support awards and inequitably divided the
parties’ marital assets and debts. The plaintiff did not
oppose the motion for articulation.
The motion for articulation was forwarded to the trial
court on June 23, 2017. Judge Pinkus, the trial judge,
who retired on June 15, 2017, did not act on the motion.
On September 29, 2017, the motion for articulation was
redirected to Judge Susan A. Connors, the presiding
family judge. On October 6, 2017, Judge Connors issued
an order denying the defendant’s motion for articula-
tion. The court’s order stated: ‘‘The motion for articula-
tion is denied. Neither party has requested a hearing
nor does the court deem it necessary to hold a hearing.
The trial judge, Judge Pinkus, has retired and is without
jurisdiction to take any further action.’’
On October 16, 2017, the defendant timely filed a
motion for review of the court’s decision denying his
motion for articulation. The plaintiff did not file any
objection to the motion for review. The defendant
argued that Judge Connors incorrectly concluded that
Judge Pinkus lacked jurisdiction to act on the motion
for articulation due to his retirement. The defendant
noted that General Statutes § 51-183g expressly pro-
vides authority for such action, and he asked this court
to order the trial court to articulate its findings in
response to the questions posed in his motion for articu-
lation. On January 24, 2018, a panel of this court granted
the motion for review, but denied the relief
requested therein.4
The defendant principally claims on appeal that he
is entitled to a new trial regarding the court’s financial
orders because he contends that the court failed to use
the parties’ net incomes in calculating its orders of child
support and alimony and inequitably distributed the
marital assets.5 The defendant recognizes that the trial
court failed to set forth in its memorandum of decision
express findings regarding what income it imputed to
the parties in calculating its support orders or even
what evidence it relied on in reaching its conclusions.
Nevertheless, he argues that the trial court did not use
the net income figures from the parties’ financial affida-
vits, and that, under any reasonable view of the evidence
before the court, ‘‘[i]t becomes quite evident that the
trial court utilized some amount in excess of the respec-
tive net incomes of one or both parties when fashioning
its child support award . . . .’’
In response, the plaintiff does not dispute that the
parties presented confusing and conflicting evidence
to the court regarding the parties’ incomes and values
of marital assets and acknowledges that the trial court’s
decision contains no express findings of income nor
any explanation of how the court calculated its support
orders. The plaintiff conceded at oral argument that,
although the parties provided the trial court with child
support worksheets, they were never made a part of
the trial court file and, thus, are not part of the record
before us on appeal. The plaintiff also conceded that
the court was required to assign some value to the
defendant’s present interest in the New York rental
property in order to equitably distribute the marital
assets, a finding that was not included in the court’s
memorandum of decision. The plaintiff nevertheless
argues that (1) the court, as the trier of fact, was free
to disregard the parties’ financial affidavits and to credit
whatever evidence it chose, (2) evidence was available
for the court to make all necessary factual findings,
and (3) although not expressly set forth in its decision,
those findings are implied. In sum, the plaintiff argues
that ‘‘sufficient facts exist on the record to draw the
conclusions supporting the order[s] issued by the trial
court,’’ and, given the highly deferential standard that
applies to appellate review of financial orders in dissolu-
tion actions, we must presume that the court acted cor-
rectly.
On the basis of our review of the trial transcripts and
the remainder of the record, we conclude, contrary to
the plaintiff’s argument, that it is impossible to ascertain
what path the court followed in crafting its support
orders and dividing the marital assets without engaging
in pure speculation. Had the defendant failed to avail
himself of procedures to obtain an articulation of the
court’s factual findings, including those regarding the
parties’ gross incomes and valuation of assets, it is
highly unlikely that the defendant could prevail on any
of his claims on appeal. Nevertheless, the defendant
did attempt to have the court articulate the factual
findings necessary to obtain review of the financial
orders, although those efforts were of little avail given
the retirement of Judge Pinkus.6 We conclude, for the
reasons that follow, that, given the present circum-
stances, which are unlikely to arise with any frequency
in the future, it would be against the interests of justice
to apply mechanistically a presumption of correctness
to the court’s support orders because to do so would
effectively, and unfairly, result in a forfeiture of the
defendant’s statutory appellate rights. See Practice
Book § 61-10, commentary.
We begin with our standard of review and other rele-
vant law. ‘‘A fundamental principle in dissolution
actions is that a trial court may exercise broad discre-
tion in awarding alimony and dividing property as long
as it considers all relevant statutory criteria. . . . Our
standard of review for financial orders in a dissolution
action is clear. The trial court has broad discretion in
fashioning its financial orders, and [j]udicial review of
a trial court’s exercise of [this] broad discretion . . .
is limited to the question of whether the . . . court
correctly applied the law and could reasonably have
concluded as it did. . . . In making those determina-
tions, we allow every reasonable presumption . . . in
favor of the correctness of [the trial court’s] action. . . .
‘‘This deferential standard of review is not, however,
without limits. There are rare cases in which the trial
court’s financial orders warrant reversal because they
are, for example, logically inconsistent . . . or simply
mistaken . . . . We cannot countenance financial
orders that are the product of mistake, even if they
ultimately may be seen to be reasonable. . . . The trial
court’s decision must be based on logic applied to facts
correctly interpreted. . . . Each party is entitled to
overall financial orders which reflect the court’s discre-
tion and are based upon the facts elicited and the statu-
tory criteria.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Hammel v. Hammel,
158 Conn. App. 827, 835–36, 120 A.3d 1259 (2015).
Another limit placed on the trial court discretion’s
in crafting financial orders is the requirement under
our rules of practice that the court provide a written
or oral decision that ‘‘shall encompass its conclusion
as to each claim of law raised by the parties and the
factual basis therefor.’’ (Emphasis added.) Practice
Book § 64-1. Without such a rule, a trial court could
inoculate important rulings from appellate scrutiny sim-
ply by electing not to set forth the factual basis for
its rulings.
In Scherr v. Scherr, 183 Conn. 366, 439 A.2d 375
(1981), our Supreme Court considered whether a trial
court in a dissolution action had committed reversible
error by failing adequately to set forth the factual basis
for its financial orders as required under the predeces-
sor of Practice Book § 64-1.7 In addressing the plaintiff’s
claim premised on the brevity of the trial court’s memo-
randum of decision, the court in Scherr stated: ‘‘The
plaintiff urges that meaningful appellate review of the
trial court’s exercise of its discretion is made impossible
by too brief a statement of its reasoning by a trial court.
Undoubtedly this becomes true at some point. We hold,
however, that in the circumstances of this case, given
the transcript and other parts of the record available
to us, the memorandum meets the minimum require-
ments of reviewability.’’ (Emphasis added; footnote
omitted.) Scherr v. Scherr, supra, 368.
Significantly, the court in Scherr also based its deci-
sion to reject the plaintiff’s claim on the fact that the
plaintiff had never alerted the trial court about the inad-
equacies in the memorandum of decision, indicating
that the plaintiff could have filed a motion for articula-
tion. Id., 368–69. We read Scherr as recognizing the
possibility that ‘‘at some point,’’ a court’s failure to set
forth factual findings in support of its financial orders
could provide a procedural basis for reversing those
orders, particularly if the appellant diligently attempted
to remedy the inadequacy of the record without suc-
cess. Id., 368.
The outcome in Scherr certainly is consistent with
our appellate courts’ treatment of claims raised in the
face of an inadequate factual record, particularly if the
appellant has not resorted to available procedural tools
to perfect the record. It is axiomatic that the appellant
bears the burden of providing this court ‘‘with a record
adequate to review his claim of error.’’ (Internal quota-
tion marks omitted.) Kaczynski v. Kaczynski, 294
Conn. 121, 129, 981 A.2d 1068 (2009). Furthermore, ‘‘a
claim of error cannot be predicated on an assumption
that the trial court acted erroneously.’’ (Internal quota-
tion marks omitted) Id., 129–30. Accordingly, our appel-
late courts often have recited, in a variety of contexts,
that, in the face of an ambiguous or incomplete record,
we will presume, in the absence of an articulation, a
trial court acted correctly, meaning that it undertook
a proper analysis of the law and made whatever findings
of the facts were necessary. See, e.g., Bell Food Services,
Inc. v. Sherbacow, 217 Conn. 476, 482, 586 A.2d 1157
(1991) (‘‘[if] an appellant has failed to avail himself of
the full panoply of articulation and review procedures,
and absent some indication to the contrary, we ordi-
narily read a record to support, rather than to contra-
dict, a trial court’s judgment’’).
The question before us is whether this same presump-
tion is warranted in a case in which a party has done
all that can reasonably be expected to obtain an articula-
tion but has been thwarted through no fault of its own.
We answer that question in the negative and decline
to apply a presumption of correctness to a trial court
decision that is devoid of any factual findings in support
of its conclusions. In this case, the defendant took all
reasonable actions necessary to remedy the lack of
adequate factual findings necessary for our review. He
filed a motion for articulation. When that motion was
denied on faulty jurisdictional grounds, he timely filed
a motion for review of that decision with this court.
Furthermore, the plaintiff never filed any opposition at
any stage of the proceedings contending that the
requests for articulation were not necessary for a proper
review of the claims on appeal.
Moreover, an action to dissolve a marriage is an equi-
table proceeding and, thus, principles of equity must
guide the entire process, including any appeal. ‘‘The
power to act equitably is the keystone to the court’s
ability to fashion relief in the infinite variety of circum-
stances which arise out of the dissolution of a marriage.
Without this wide discretion and broad equitable power,
the courts in some cases might be unable fairly to
resolve the parties’ dispute . . . . The term equity
denotes the spirit and habit of fairness, justness and
right dealing which would regulate the intercourse
[between individuals].’’ (Citation omitted; internal quo-
tation marks omitted.) Luster v. Luster, 128 Conn. App.
259, 264–65 n.9, 17 A.3d 1068, cert. granted on other
grounds, 302 Conn. 904, 23 A.3d 1243 (2011) (appeal
dismissed April 12, 2012). ‘‘To affirm for lack of record
when the faulty record stems from the trial court’s
failure to comply with [what is now Practice Book § 64-
1], despite a motion for articulation, would deprive the
plaintiff of an appeal despite the significance of the
issues involved and despite the strong, yet imperfect,
efforts of counsel.’’ Holmes v. Holmes, 32 Conn. App.
317, 334, 629 A.2d 1137 (Lavery, J., dissenting), cert.
denied, 228 Conn. 902, 634 A.2d 295 (1993). Having
considered all the competing interests involved, which
includes the plaintiff’s interest in not having to relitigate
issues that she would contend properly were decided
in her favor, we conclude that the appropriate action
in this case is to remand the matter for a new trial on
all financial orders.8
The judgment is reversed with respect to the financial
orders only and the matter is remanded for a new trial;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The children were born in July, 2006, and March, 2009.
2
The parties agreed to joint legal custody of the children, with the plaintiff
having primary physical custody subject to a visitation schedule with the
defendant as set forth in the parenting plan.
3
The nature of the defendant’s interest in the New York property was
disputed at trial. The defendant testified that he had purchased the New
York property for his parents and brother-in-law in 2001, prior to his marriage
with the plaintiff, and then had transferred the property to his parents in
October, 2014, in order to secure a loan to expand the delicatessen business.
The plaintiff took the position that the transfer of the property was fraudulent
and meant to hide a marital asset.
4
General Statutes § 51-183g provides: ‘‘Any judge of the Superior Court
may, after ceasing to hold office as such judge, settle and dispose of all
matters relating to appeal cases, as well as any other unfinished matters
pertaining to causes theretofore tried by him, as if he were still such judge.’’
The plain language of this statute demonstrates that the trial court’s
assessment that Judge Pinkus lacked jurisdiction to act on the motion for
articulation due to his retirement was incorrect. Nevertheless, as the panel
of this court that considered the motion for review undoubtedly concluded
in declining to order an articulation, the mere fact that a retired jurist has
continuing statutory authority to act does not solve the myriad of issues
and impracticalities involved in forcing a retired jurist to return to service.
The statute states only that a judge ‘‘may’’ act after retirement; it does not
mandate any action. We leave for another time the proper procedure for
trial courts to follow if faced with a motion for articulation or rectification
directed to a retired judge, but we do not believe that the remedy contem-
plated by § 51-183g presents a viable option under the totality of the circum-
stances in this case.
5
‘‘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. Tuckman, 308 Conn. 194, 209, 61
A.3d 449 (2013). A trial court abuses its discretion by ordering child support
‘‘without determining the net income of the parties, mentioning or applying
the guidelines, or making a specific finding on the record as to why it was
deviating from the guidelines.’’ Id., 208. In the present case, although the
court indicated it followed the child support guidelines, we are left to specu-
late as to what income figures the trial court utilized in its calculations.
Furthermore, if the court deviated from the guidelines, it did not indicate
this in its decision, nor did it provide any rationale for making a deviation.
6
Certainly, there is no doubt that we have the authority to order the trial
court to undertake whatever actions may be necessary to perfect the record
on appeal. See Practice Book §§ 60-2, 60-5, and 61-10. It would not be
possible, however, for a judge to state the factual basis underlying another
judge’s discretionary decisions, particularly because the new judge would
be left to speculate about what evidence the other judge may have credited,
and to reevaluate witness testimony from a printed transcript without the
ability to make important and necessary credibility determinations. As we
have indicated, ordering the retired judge to articulate factual findings at
this time is a wholly impractical option. See footnote 4 of this opinion.
7
The trial court in Scherr had dissolved a twenty-three year marriage
‘‘without any award of alimony [to the plaintiff appellant], with a relatively
modest award of child support, and with an award to the defendant of one-
half of the equity in the marital home.’’ Scherr v. Scherr, supra, 183 Conn. 369.
8
‘‘Individual financial orders in a dissolution action are part of the carefully
crafted mosaic that comprises the entire asset reallocation plan. . . . Under
the mosaic doctrine, financial orders should not be viewed as a collection
of single disconnected 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.)
Barcelo v. Barcelo, 158 Conn. App. 201, 226, 118 A.3d 657, cert. denied, 319
Conn. 910, 123 A.3d 882 (2015).