Buxenbaum v. Jones , 189 Conn. App. 790 ( 2019 )

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NINA BUXENBAUM v. BRIAN S. JONES
(AC 40255)
Prescott, Bright and Norcott, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving her marriage to the defendant and making certain orders
regarding custody of the parties’ two minor children and the parties’
finances. Held:
1. The plaintiff could not prevail on her claim that the trial court failed to
consider the best interests of her minor children in deciding custody,
which she claimed was demonstrated by its alleged predetermination
of that issue before the close of evidence in its preparation of a child
support guidelines worksheet; the plaintiff failed to provide any legal
authority that would suggest that a court is prohibited from working
on the case pending before it until the close of evidence, and the fact
that the trial court input data into a worksheet before the close of
evidence did not evince a premature determination of the issues and
merely demonstrated that it was considering and working on the case
before it, as the court was well within its authority to take notes,
research, and begin working on a decision during the trial, knowing
that additional evidence might require changes in the work it already
had done.
2. The plaintiff’s claim that the trial court improperly failed to consider and
rely on the defendant’s earning capacity when it issued its financial
orders was unavailing: the plaintiff’s claim that the defendant should
have been ordered to pay her alimony and child support based on his
earning capacity was largely inconsistent with the position she took at
trial, where she argued that neither party should be required to pay the
other any type of support, and this court typically will not consider an
argument raised on appeal that is contrary to the position taken by the
party in the trial court; moreover, although a court can base its financial
orders on the parties’ earning capacities, it is not required to do so, and
the court did not abuse its discretion in making its financial orders, as
it crafted its financial orders taking all of the facts into consideration,
including the requests of the plaintiff, and balanced the equities in the
case, including a shared physical custody arrangement.
3. The plaintiff could not prevail on her claim that the trial court lacked
evidentiary support for its findings on the court prepared worksheet as
to the defendant’s net weekly income; where, as here, the plaintiff had
submitted her own guidelines worksheet to the court and asked the
court to rely on her representation of the defendant’s net income, the
court calculated a net income of the parties that was even more favorable
to the plaintiff than what she had proposed, and the court’s alimony
and support orders gave the plaintiff exactly what she had requested,
to permit the plaintiff to challenge the trial court’s financial orders
because they did not rely on evidence of the defendant’s net income
after the plaintiff asked the court to rely on her calculation of that
income and the court entered the very orders the plaintiff requested,
would have amounted to sanctioning a trial by ambuscade, which this
court would not do, and in the specific factual and procedural context
of this case, there was no error in the trial court’s reliance on the net
income information provided to it by the plaintiff.
Argued January 14—officially released May 14, 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 Danbury and tried to the court, Winslow, J.;
judgment dissolving the marriage and granting certain
other relief, from which the plaintiff appealed to this
court. Affirmed.
Logan A. Carducci, for the appellant (plaintiff).
Douglas J. Lewis, for the appellee (defendant).
Opinion
BRIGHT, J. The present appeal arises following the
trial court’s judgment dissolving the marriage of the
plaintiff, Nina Buxenbaum, and the defendant, Brian S.
Jones. On appeal, the plaintiff claims that the trial court
(1) failed to consider the best interests of the children,
as demonstrated by its predetermination of custody
before the close of evidence, (2) failed to consider the
defendant’s earning capacity and, therefore, rendered
logically inconsistent financial orders, and (3) lacked
evidentiary support for its findings regarding the defen-
dant’s net weekly income. We affirm the judgment of
the trial court.
The record reveals the following relevant facts, which
were found by the trial court or are uncontested. The
parties were married in 2007, and have two minor chil-
dren. After approximately eight years of marriage, the
plaintiff sought a judgment dissolving the parties’ mar-
riage. In her complaint, she requested, inter alia, joint
legal custody of the children, with primary physical
custody vested in her. During the pendency of the disso-
lution, the parties shared physical and legal custody of
their children, in what is called a 5-2-2-5 plan, with the
plaintiff having physical custody of the children every
Monday and Tuesday, the defendant having physical
custody of the children every Wednesday and Thursday,
and the parties alternating physical custody of the chil-
dren every Friday through Sunday. On November 18,
2015, the court entered temporary orders requiring the
plaintiff to pay child support to the defendant in the
amount of $243 per week and alimony in the amount
of $150 per week.
On September 27, 2016, the defendant filed a notice
of bankruptcy with the court. On November 21, 2016,
the parties entered into a pendente lite agreement,
which the court accepted, terminating alimony and
child support, and agreeing, on the basis of the parties’
shared physical custody of the children, that neither
party would be obligated to pay support.
On February 1, 2017, the plaintiff submitted her pro-
posed orders, in which she requested: joint legal cus-
tody of the children, with primarily physical custody
vested in her; a finding that the defendant’s earning
capacity is $140,000 or more, but a deviation from the
guidelines on the basis of the defendant’s self-employ-
ment and ‘‘the coordination of total family support,’’
and an order that the defendant pay only $1 per year
in child support until he finds gainful employment; a
waiver of alimony by both parties; a transfer of the
defendant’s interest in the marital home to the plaintiff
for the sale of the home by the plaintiff and use and
possession of it by the defendant until February 28,
2017; and that each party retain their own retirement
accounts, bank accounts, and personal effects, includ-
ing artwork.
On February 8, 2017, the defendant submitted a set
of third amended proposed orders, requesting, inter
alia, joint legal and shared physical custody of the chil-
dren, a waiver of alimony by both parties, child support
in accordance with the guidelines, exclusive possession
of the marital home, a fair distribution of the parties’
retirement accounts, and that each party retain their
own bank accounts and personal property, but that the
defendant be entitled to one half of the plaintiff’s art-
work produced during the marriage.
On February 22, 2017, following a trial, the court
rendered a judgment of dissolution, in which it ordered:
the parties shall share joint legal custody of the children,
with no parent having the right to act unilaterally with
respect to important decisions affecting the children,
but, ultimately, the plaintiff has final say on treatment
concerning the children’s physical or emotional health;
the parties shall share physical custody of the children
under a 5-2-2-5 plan; neither party shall be responsible
to pay child support to the other, but each party shall
share the expenses of extracurricular activities, school
supplies, and school trips; the plaintiff shall maintain
the children on her medical and dental plans; unreim-
bursed medical and dental expenses shall be paid in
accordance with the plan set forth by the court; and
neither party shall be entitled to alimony. This appeal
followed. Additional facts will be set forth as necessary.
‘‘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 [evidence]
presented. . . . It is within the province of the trial
court to find facts and draw proper inferences from the
evidence presented. . . . In determining whether a
trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action . . . . [T]o
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. . . .
Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . As has often been explained, the foundation for
this standard is that the trial court is in a clearly advanta-
geous position to assess the personal factors significant
to a domestic relations case . . . .’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Kirwan v. Kirwan, 185 Conn. App. 713, 726, 197 A.3d
1000 (2018).
‘‘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 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.) Keusch v. Keusch, 184 Conn.
App. 822, 825–26, 195 A.3d 1136 (2018).
I
The plaintiff first claims that the court failed to con-
sider the best interests of the children in deciding cus-
tody, as demonstrated by its alleged predetermination
of that issue before the close of evidence. The plaintiff
argues that custody of the two minor children was a
contested issue at trial, but that the court had prepared a
child support guidelines worksheet (worksheet), dated
February 10, 2017, ‘‘prior to the conclusion of the plain-
tiff’s testimony and the close of evidence, based on a
predetermination that the parties will split custody.’’1
(Emphasis in original.) The defendant argues that the
court began preparation of the worksheet before the
close of evidence, that the plaintiff misrepresents the
date on the worksheet, which was February 15, 2017,2
and that the court gave that worksheet to the parties
to review for accuracy before rendering judgment.3 He
argues that there is no evidence that the court predeter-
mined custody, and, further, that the evidence demon-
strates that the court weighed all the evidence,
including the then current shared custody arrangement
that the parties had been following, and it considered
the best interests of the children. We conclude that the
plaintiff’s claim lacks merit.
‘‘It is statutorily incumbent upon a court entering
orders concerning custody or visitation . . . to be
guided by the best interests of the child. . . . In reach-
ing a decision as to what is in the best interests of a
child, the court is vested with broad discretion and its
ruling will be reversed only upon a showing that some
legal principle or right has been violated or that the
discretion has been abused.’’ (Internal quotation marks
omitted.) D’Amato v. Hart-D’Amato, 169 Conn. App.
669, 678, 152 A.3d 546 (2016). ‘‘The best interests of
the child, the standard by which custody decisions are
measured, does not permit . . . a predetermined
weighing of evidence.’’ Yontef v. Yontef, 185 Conn. 275,
282, 440 A.2d 899 (1981). A claim that the court predeter-
mined the outcome of a contested issue implicates the
court’s impartiality. See Havis-Carbone v. Carbone, 155
Conn. App. 848, 866–67, 112 A.3d 779 (2015) (court’s
predetermination of relocation issue implicated court’s
required impartiality and constituted plain error); Bank
of America, N.A. v. Thomas, 151 Conn. App. 790, 802,
96 A.3d 624 (2014) (allegation that court predetermined
outcome of motion ‘‘implicate[d] the court’s impar-
tiality’’).
To obtain appellate review, a claim of judicial bias
or lack of impartiality typically must be raised before
the trial court. See Zilkha v. Zilkha, 167 Conn. App.
480, 486, 144 A.3d 447 (2016) (‘‘[I]t is well settled that
courts will not review a claim of judicial bias on appeal
unless that claim was properly presented to the trial
court . . . . Absent plain error, a claim of judicial bias
cannot be reviewed on appeal unless preserved in the
trial court.’’ [Internal quotation marks omitted.]); Jazlo-
wiecki v. Cyr, 4 Conn. App. 76, 78–79, 492 A.2d 516
(1985) (plaintiff claiming he became aware of judicial
bias after court rendered decision should have pre-
served issue in motion to open and set aside judgment).
Because of the seriousness of such an allegation, how-
ever, in the interest of justice, we may invoke our
authority to review ‘‘plain error’’ not properly preserved
in the trial court. See Cameron v. Cameron, 187 Conn.
163, 168, 444 A.2d 915 (1982); Practice Book § 60-5.
In the present case, the record contains a worksheet
prepared by the court, bearing the date February 15,
2017, and the time 5:06 p.m. The balance of the plaintiff’s
testimony in this case did not conclude until February
17, 2017.4 The court uploaded this worksheet into the
court file on February 22, 2017, the same day it issued
its memorandum of decision in which it rendered judg-
ment. The plaintiff alleges that this, alone, proves that
the court predetermined custody. Because of the seri-
ousness of the allegation, and because it is unclear to
us whether the plaintiff was aware of this issue before
the court entered judgment, we invoke our authority
to review whether the court’s action constituted plain
error. We conclude that the plaintiff’s claim lacks sub-
stantiation and wholly is without merit.
The court’s worksheet sets forth the parties’ gross
and net incomes, which are quite similar to those set
forth in the plaintiff’s worksheet, and it determines the
appropriate amount of child support on the basis of,
what it called, a ‘‘split custody’’ determination. The
court, however, ultimately, awarded shared legal and
physical custody. See footnote 1 of this opinion. Never-
theless, the fact that the court input data into a work-
sheet before the close of evidence does not evince a
premature determination of the issues. Certainly, the
court was well within its authority to take notes,
research, and begin working on a decision during the
trial, knowing that additional evidence may require
changes in the work it already had done. The fact that
the court input data into a worksheet before the close
of evidence merely demonstrates that the court was
considering and working on the case that was before
it. The plaintiff fails to provide any legal authorities that
would suggest that a court is prohibited from working
on the case pending before it until the close of evidence.
This issue warrants no further review. The plaintiff has
failed to demonstrate any error.
II
The plaintiff next claims that the trial court failed to
consider and rely on the defendant’s earning capacity
when it issued its financial orders pursuant to General
Statutes §§ 46b-81, 46b-82, and 46b-84, which caused it
to render logically inconsistent financial orders.5 Specif-
ically, the plaintiff argues: ‘‘[T]he trial court inequitably
declined to award the plaintiff alimony or child support
and awarded the defendant a portion of the plaintiff’s
retirement account despite its express findings that the
defendant has a history of substantial earnings and pos-
sesses the education and skills to return to those earn-
ings in the future.’’ The defendant responds that ‘‘there
was no basis in fact for the court to look to the earning
capacity of either party in fashioning its financial
orders. Both parties, at the time of trial, were employed
and their earnings reported. The fact that the defendant
was earning . . . less than what he had once earned
is not the standard by which to look to his earning
capacity. Bear in mind that the defendant, once termi-
nated from his job [in March, 2014,] took on additional
parenting responsibilities, and, at the time of trial, was
under a court approved shared custody arrangement.’’6
We agree with the defendant.
‘‘It is well established that the trial court may under
appropriate circumstances in a marital dissolution pro-
ceeding base financial awards . . . on the earning
capacity of the parties rather than on actual earned
income. . . . 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
. . . .
‘‘Factors that a court may consider in calculating a
party’s earning capacity include evidence of that party’s
previous earnings . . . [l]ifestyle and personal
expenses . . . and whether the defendant has wilfully
restricted his earning capacity to avoid support obliga-
tions, although we never have required a finding of
bad faith before imputing income based on earning
capacity.’’ (Citations omitted; internal quotation marks
omitted.) Fox v. Fox, 152 Conn. App. 611, 634, 99 A.3d
1206, cert. denied, 314 Conn. 945, 103 A.3d 977 (2014);
see also Schmidt v. Schmidt, 180 Conn. 184, 189–90,
429 A.2d 470 (1980) (‘‘[i]t is especially appropriate for
the trial court to base its award on earning capacity
rather than actual earned income where . . . there is
evidence before the court that the person to be charged
has wilfully depleted his or her earnings with a view
toward denying or limiting the amount of alimony to
be paid to a former spouse’’).
‘‘Dependent spouses frequently fear that the wage-
earner spouse will voluntarily reduce or deplete his or
her earnings in order to reduce or eliminate the alimony
award, and in many cases such a concern is entirely
justified. There is at least some protection against such
a practice in that financial awards may sometimes be
based upon earning capacity rather than on the party’s
actual earned income. In general an alimony award may
be based on the payor spouse’s earning capacity rather
than on actual earned income where it appears that the
payor willfully or voluntarily depleted earnings with a
view toward denying or limiting alimony. Conversely,
present income rather than claimed earning capacity
may be used where there is no indication that the payor
spouse had willfully depleted his earnings . . . . [A]
parent’s child-care responsibilities are a factor which
[also] may affect earning capacity. . . . [The court,
however, does not require a finding of] bad faith or
willful depletion of earnings . . . before [basing its]
orders on earning capacity.’’ (Footnotes omitted.) A.
Rutkin, S. Oldham & K. Hogan, 8 Connecticut Practice
Series: Family Law and Practice with Forms (3d Ed.
2010) § 33:11, pp. 55–56; see also id., § 38:21 (discussing
use of earning capacity in child support determinations
and reaching same conclusion as use in alimony deter-
minations). The fact that a court may consider a party’s
earning capacity does not mean that it is required to
do so. Whether to base its financial orders on the parties’
actual net income or their earning capacities is left to
the sound discretion of the trial court.
In the present case, the court specifically found that
the parties married in 2007. The plaintiff had obtained a
master’s degree in painting from the Maryland Institute
College of Art in 2001. In 2002, she began teaching at
York College in New York, where she later became a
tenured associate professor. She earns a salary of
$96,185. The plaintiff also teaches for two weeks each
summer at a program in Utah, where she earns $3300.
The plaintiff’s total gross weekly income is $1913.17.
After deductions, her net income is $1177 per week. The
court also found that the plaintiff does not aggressively
market her drawings and paintings, but, rather, she
sporadically receives income from the sale of her art-
work; the last drawing she sold, resulted in a payment
of $1600.7 The court, however, declined to attribute
income to the plaintiff’s occasional sale of artwork.
The court also found that the plaintiff had $64,106
in her retirement account at the time of the parties’
marriage. At the time of the dissolution, that account
had grown to approximately $220,699, with the annuity
portion containing $78,066, and the 401 (a) portion con-
taining $142,633. The plaintiff has three outstanding
loans from that account, with a combined outstanding
balance of $9887.
As to the defendant, the court found that, at the
time the parties married, the defendant worked at Lyra
Research, where he earned approximately $60,000
annually. He also pursued a staging business, estimating
he earned approximately $100,000 in that business. Fol-
lowing a layoff, the defendant worked at ORC Interna-
tional in New York, where he earned a base annual
salary of $90,000, plus commissions. The defendant, at
that time, also pursued a master’s degree in marketing
management from Harvard University. He graduated in
2010. In 2012, the defendant left ORC International and
began employment with Pluris. His base salary was
$150,000, with some incentives. After leaving Pluris in
the summer of 2013, he was employed at Ogilvy, an
advertising agency in New York, where he earned
$180,000, but his position was eliminated in March,
2014.
The court further found that the defendant is an entre-
preneur at heart, who wanted to open his own business.
In 2014, using his savings and credit card loans, he
began that quest by opening a juice bar. The defendant
filed for Chapter 7 personal bankruptcy in September,
2016, and his debts were discharged in January, 2017.
The defendant also closed the juice bar in January,
2017. The defendant then began a new business, KBC
Ventures, LLC, doing business as Beyond Medical Solu-
tions. He has an investor in his business, who is paying
him $1200 per week plus expenses. He expects his
income will increase in time. The defendant also has a
tenant living in his home, who pays $100 per week in
rent; he expects to increase the rent to $1000 per month
once the tenant can afford the increase.
The court further found that the defendant had
cashed out $90,755 of his retirement in 2015, and sold
his stocks, realizing a gain of $4808. The only retirement
money he has left is $3500 in an individual retirement
account. The defendant owes the Internal Revenue Ser-
vice $10,127 for the 2015 tax year, and, at the time of
judgment, he was in discussions with it concerning a
payment plan. He also owes money to the state and
federal government for the 2016 tax year.
The court stated that the guidelines provided for the
plaintiff to pay $186 per week for child support and
the defendant to pay $166 per week. The court ruled,
however, that ‘‘[g]iven the shared physical custody and
similarity of the parties’ net incomes . . . [it would be]
inappropriate for either party to pay basic child support
to the other.’’ In addition to considering the guidelines,
the court also stated that it had considered ‘‘all the
criteria in General Statutes §§ 46b-56, 46b-56c, 46b-62,
46b-81, 46b-82 and 46b-84 in light of the evidence pre-
sented.’’ The court further found that the defendant had
an advantage over the plaintiff in terms of ‘‘income
earning capacity.’’
The court then stated that it was rendering orders,
taking ‘‘into consideration all of the claims and
requested orders of the parties,’’ in a manner that it
‘‘deemed most equitable and workable in the eyes of
the court.’’ The court proceeded to set forth its specific
orders. These orders included: neither party would pay
alimony to the other; the defendant would be the sole
owner of the marital home and would be responsible
for the mortgage and bills associated therewith, and the
plaintiff would be held harmless; the defendant would
make every effort to remove the plaintiff from the prom-
issory note and the mortgage, but if he failed to do so
by December 31, 2017, he must list the home for sale
at or below fair market value and must sell the residence
expeditiously;8 each party would keep his or her own
vehicle, own bank accounts, and certificates of deposit;
the plaintiff would continue to own all of her artwork;
the defendant would continue to own the assets of his
businesses; the defendant would keep his retirement
account, which was valued at approximately $3500; the
plaintiff would transfer to the defendant $30,000 from
her 401 (a) account, which was valued at approximately
$220,700, as of the dissolution; and the plaintiff would
retain the balance of her 401 (a) account.
The plaintiff now claims that the court failed to take
into consideration the earning capacity of the defendant
when it issued its financial orders, including its support
orders, and that the orders, therefore, were inconsistent
with the court’s findings that the defendant had a higher
earning capacity than did the plaintiff. We are not per-
suaded.
First, we note that the plaintiff’s claim is largely
inconsistent with the position she took at trial. Despite
her argument on appeal that the defendant should have
been ordered to pay her alimony and child support
based on his earning capacity, she argued to the trial
court that neither party should be required to pay the
other any type of support. In her February 1, 2017 pro-
posed orders, she requested that the court deviate from
the guidelines and order that the defendant pay $1 per
year in child support, and she requested that both par-
ties waive alimony. Additionally, during final argument
before the trial court on February 17, 2017, the plaintiff’s
trial attorney argued in relevant part: ‘‘I don’t believe
that this is a case where support should be awarded.
Regardless of what the parenting plan is, because
they’re under the child support guidelines, their income
is substantially equal. If you take out the deductions
for the taxes, the mortgage interest, and the taxes on
the marital home, I think they’re within 5 percent or
10 percent of each other. . . . So, I don’t think this is
a case that warrants any type of support payment.’’ As
set forth in part III of this opinion, we typically will not
consider an argument raised on appeal that is contrary
to the position taken by the party in the trial court.
In addition, as noted previously, although a court
can base its financial orders on the parties’ earning
capacities, it is not required to do so. In the present
case, although the court found that the defendant had
a higher ‘‘income earning capacity’’ than did the plain-
tiff, the court also found that the parties were in an
equal position: ‘‘The parties are in equipoise as to age,
health, station, estate, needs, vocational skills, educa-
tion, employability, and opportunity . . . .’’ The record
also reveals that the court carefully considered the sta-
tus of the parties before the marriage, during the mar-
riage, and at the time of trial, including the fact that
the defendant is an entrepreneur at heart who wanted
to pursue a career path different than the one that, in
the past, had produced a higher income. Significantly,
the plaintiff did not claim, nor did the court find, that
the defendant’s decision to change careers was done
wilfully to restrict his earning capacity to avoid support
obligations. Overall, the court crafted its financial
orders taking all of the facts into consideration, includ-
ing the requests of the plaintiff, and balanced the equi-
ties in the case, including a shared physical custody
arrangement. We have examined the record in this case
and are not persuaded that the court abused its dis-
cretion.
III
The plaintiff’s final claim is that trial court lacked
evidentiary support for its findings on the court pre-
pared worksheet as to the defendant’s net weekly
income. She argues that the figures on the court’s work-
sheet do not match the figures on the defendant’s finan-
cial affidavit, and that there is no evidence in the record
to support the tax calculations that the court used for
the defendant.9 The defendant argues that the court
gave the parties a copy of this worksheet before the
close of evidence so that they could review it and make
objections or suggestions to the court, and that they
had none. During oral argument before this court, the
panel asked the defendant’s attorney, who also was
trial counsel for the defendant, whether this was done
on the record, and he responded in the negative. The
plaintiff’s appellate attorney was not the same attorney
who represented her at trial, and she did not know
whether the parties had been given a copy of the docu-
ment upon which to comment. Because there is nothing
in the record to substantiate the defendant’s assertion,
we are unable to conclude that the parties were given
copies of the court’s worksheet. Nevertheless, on the
basis of the record before us, we are not persuaded by
the plaintiff’s claim.
‘‘Pursuant to Practice Book § 25-30, each party is
required to file certain statements during a dissolution
or child support matter. The guidelines worksheet is
based on net income; weekly gross income is listed on
the first line on the worksheet, and the subsequent lines
list various deductions, including federal income tax
withheld and social security tax. . . . The guidelines
are used by the court to determine a presumptive child
support payment, which is to be deviated from only
under extraordinary circumstances.’’ (Citation omitted;
footnote omitted.) Golden v. Mandel, 110 Conn. App.
376, 386, 955 A.2d 115 (2008). The plaintiff, relying on
this court’s decision in Ferraro v. Ferraro, 168 Conn.
App. 723, 730, 147 A.3d 188 (2016), argues that the trial
court abused its discretion by basing its decision on
income information on a worksheet as to which there
was no evidentiary support.
In Ferraro, the trial court rendered a judgment of
dissolution and issued financial orders, and the defen-
dant thereafter filed a motion for reconsideration and
reargument, claiming in relevant part that the court’s
findings as to his net income were inconsistent with
the evidence. Id., 724–25. After the court summarily
denied this motion, the defendant filed an appeal and
a motion for articulation. Id., 726. The defendant
requested, inter alia, that the trial court articulate ‘‘the
evidential sources for the court’s ‘figures used for taxes
and deductions’ . . . .’’ Id. In responding to that
request, the court stated in relevant part: ‘‘ ‘[T]he 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
. . . .’’ Id.
On appeal in Ferraro, this court stated that
‘‘[a]lthough the child support guidelines create a legal
presumption as to the amount of child support pay-
ments . . . the figures going into that calculation on
the worksheet must be based on some underlying evi-
dence. . . . A court may not rely on a worksheet unless
it is based on some underlying evidence.’’ (Citation
omitted; internal quotation marks omitted.) Id., 730.
This court then noted that the figures used by the trial
court did not match the figures provided by the defen-
dant on his financial affidavit and that the trial court
failed to articulate how it arrived at its figures. Id.,
729. This court stated, ‘‘it appear[ed] that the court sua
sponte made various assumptions regarding standard
and itemized deductions, medical expenses and child
credits’’; id.; and that ‘‘there was no testimony or other
evidence presented at trial with respect to alternate
federal and state tax calculations, exemptions, deduc-
tions or credits.’’ Id., 730.
This court went on to explain that the trial court had
articulated that it had relied on evidence and testimony
provided at the trial, but that ‘‘[t]he figures [used by
the court] do not match [the evidence] and, although
the court is free to credit or discredit some or all of a
witness’ evidence . . . the court still must provide a
basis for the determinations that it makes as supported
by the underlying evidence.’’ (Citation omitted.) Id., 731.
This court also explained that the trial court was free
to take judicial notice of certain facts, including tax
tables, where appropriate, but that there was no indica-
tion in this case that the court had done so. Id., 732.
On this basis, this court reversed the judgment as to
the financial orders and remanded the case for a new
hearing. Id., 734–35. We conclude that Ferraro is distin-
guishable from the present case.
In the present case, unlike in Ferraro, the plaintiff
asked the court to rely on her representation of the
defendant’s net income. Furthermore, unlike in Fer-
raro, the court calculated a net income of the parties
that was even more favorable to the plaintiff than what
she had proposed. Finally, unlike in Ferraro, the court’s
alimony and support orders gave the plaintiff exactly
what she had requested. In fact, the manner in which
the information regarding net income was provided to,
and used by, the court makes clear why the plaintiff’s
reliance on Ferraro is misplaced.
During the defendant’s testimony on February 8,
2017, he explained that he recently had been receiving
$1200 per week from an investor in his medical device
business, which he began in January, 2017, and that he
also was receiving $100 per week in rental income. In
light of this testimony, the court asked the plaintiff’s
attorney if she was going to submit a substitute work-
sheet, to which she answered in the affirmative, stating
that she first wanted to ‘‘flush out the testimony.’’ The
plaintiff later submitted this updated worksheet, which
was dated February 13, 2017.
On that worksheet, the plaintiff listed her own gross
income as $1912, and her net weekly income as $1258.
She asserted that the defendant’s gross weekly income
was $1300, and she listed three deductions for him:
federal income tax of $108, social security tax of $170,
and state income tax of $53.10 The plaintiff’s net weekly
income calculation for the defendant was $969, and the
difference in the parties’ net weekly income, as set
forth on the plaintiff’s worksheet, was $289 per week.
According to the plaintiff’s worksheet, the parties’ com-
bined net weekly income was $2230, rounded to the
nearest $10.
The court’s worksheet listed the plaintiff’s gross
weekly income as $1913, and it calculated her net
weekly income as $1177. The court listed the defen-
dant’s gross weekly income as $1300, and it also listed
three deductions: federal income tax of $12, social secu-
rity tax of $184, and state income tax of $54. The court’s
net weekly income calculation for the defendant was
$1050. Accordingly, the court found that the defendant’s
net weekly income was $81 more than what the plaintiff
had asserted on her worksheet, and the difference in
the parties’ net weekly income was $127, less than one
half of the difference calculated by the plaintiff. The
court found the combined weekly net income of the
parties to be exactly the same as the plaintiff’s calcula-
tion, namely $2230, rounded to the nearest $10. Because
the parties were sharing physical custody of the chil-
dren and their net incomes were similar, the court found
that a deviation from the guidelines was in order, and
it concluded that no support should be paid by either
party, as had been the position of the plaintiff during
closing argument.
The plaintiff’s argument on appeal that there was no
evidence or testimony with respect to the defendant’s
tax obligations notwithstanding,11 the record reveals
that she submitted her own guidelines worksheet to the
court, which contained calculations for the defendant’s
taxes. See footnote 10 of this opinion. Additionally, the
record reveals that the plaintiff’s attorney argued during
closing argument before the trial court that the parties’
net incomes were ‘‘within 5 percent or 10 percent of
each other’’ and that this is not a case ‘‘that warrants
any type of support payment.’’
Finally, although the plaintiff argues that this case is
similar to Ferraro, the alleged discrepancy between the
evidence and the figures used by the trial court was
brought to the court’s attention in Ferraro in a motion
for reconsideration and reargument, which the court
summarily denied. Ferraro v. Ferraro, supra, 168 Conn.
App. 725–26. Additionally, the court then was requested
to articulate the precise sources for the court’s figures
used to calculate the plaintiff’s taxes and deductions,
and it failed to do so adequately, stating only that it
relied on the evidence. Id., 731. In the present case, any
alleged discrepancy was not brought to the attention
of the court, and, in fact, the court’s worksheet was
similar to the plaintiff’s worksheet, and its support
orders nearly mimicked those requested by both
parties.
On appeal, the plaintiff’s position apparently has
changed. Whereas she asked the trial court to rely on
her representations of the parties’ net income, and fur-
ther asked the court to use that information to conclude
that neither party should pay child support or alimony
to the other, she now claims that the trial court should
not have entered the financial orders that she requested
because the court lacked evidence regarding the defen-
dant’s net income. We do not look favorably on the
plaintiff’s efforts to change positions on appeal. ‘‘As we
have expressed on a number of occasions, we generally
disfavor permitting an appellant to take one legal posi-
tion at trial and then take a contradictory position on
appeal.’’ Kirwan v. Kirwan, supra, 185 Conn. App. 724
n.11. ‘‘[A] party cannot be permitted to adopt one posi-
tion at trial and then . . . adopt a different position on
appeal.’’ Szymonik v. Szymonik, 167 Conn. App. 641,
650, 144 A.3d 457, cert. denied, 323 Conn. 931, 150 A.3d
232 (2016). Similarly, this court has stated that ‘‘[o]rdi-
narily appellate review is not available to a party who
follows one strategic path at trial and another on appeal,
when the original strategy does not produce the desired
result. . . . To allow the [party] to seek reversal now
that his trial strategy has failed would amount to
allowing him to induce potentially harmful error, and
then ambush the [opposing party and the court] with
that claim on appeal.’’ (Internal quotation marks omit-
ted.) Nweeia v. Nweeia, 142 Conn. App. 613, 620, 64
A.3d 1251 (2013). In this case, to permit the plaintiff to
challenge the trial court’s financial orders because they
did not rely on evidence of the defendant’s net income
after the plaintiff asked the court to rely on her calcula-
tion of that income, and the court entered the very
orders the plaintiff requested, would amount to sanc-
tioning a trial by ambuscade, which we will not do.
‘‘[A] court must base its child support and alimony
orders on the available net income of the parties . . . .
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 context specific. . . . [T]he trial court is
not required to make specific reference to the criteria
that it considered in making its decision.’’ (Internal quo-
tation marks omitted.) Ray v. Ray, 177 Conn. App. 544,
557, 173 A.3d 464 (2017). In the specific factual and
procedural context of this case, we find no error in the
trial court’s reliance on the net income information
provided to it by the plaintiff.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the worksheet prepared by the court stated that it was
based on a ‘‘split custody’’ determination. The court, however, did not order
‘‘split custody’’ in this case. Rather, the court ordered shared legal and
physical custody. As defined in § 46b-215a-1 (24) of the Regulations of
Connecticut State Agencies, ‘‘[s]plit custody’’ is ‘‘a situation in which there
is more than one child in common and each parent is the custodial parent
of at least one of the children.’’ (Internal quotation marks omitted.) Rather,
the court ordered in this case that the parties have ‘‘shared physical custody,’’
which means ‘‘a situation in which the physical residence of the child is
shared by the parents in a manner that ensures the child has substantially
equal time and contact with both parents. An exactly equal sharing of physi-
cal care and control of the child is not required for a finding of shared
physical custody.’’ Regs., Conn. State Agencies § 46b-215a-1 (23).
2
The date on the court’s worksheet is February 15, 2017; the date on the
court’s data sheets is February 10, 2017.
3
The defendant’s attorney, who also was trial counsel, represented at
oral argument before this court that the trial court had given each attorney
a copy of this worksheet to review for accuracy. When asked whether that
occurred on the record, he explained that it happened in chambers. We
have no record to verify the accuracy of this statement and, therefore, do
not consider it in our analysis.
4
There was no testimony taken on February 16, 2017.
5
General Statutes § 46b-81 provides in relevant part: ‘‘(a) At the time of
entering a decree annulling or dissolving a marriage or for legal separation
pursuant to a complaint under section 46b-45, the Superior Court may assign
to either spouse all or any part of the estate of the other spouse. The court
may pass title to real property to either party or to a third person or may
order the sale of such real property, without any act by either spouse, when
in the judgment of the court it is the proper mode to carry the decree into
effect. . . .
‘‘(c) In fixing the nature and value of the property, if any, to be assigned,
the court, after considering all the evidence presented by each party, shall
consider the length of the marriage, the causes for the annulment, dissolution
of the marriage or legal separation, the age, health, station, occupation,
amount and sources of income, earning capacity, vocational skills, educa-
tion, employability, estate, liabilities and needs of each of the parties and
the opportunity of each for future acquisition of capital assets and income.
The court shall also consider the contribution of each of the parties in the
acquisition, preservation or appreciation in value of their respective estates.’’
General Statutes § 46b-82 (a) provides in relevant part: ‘‘At the time of
entering the decree, the Superior Court may order either of the parties to
pay alimony to the other, in addition to or in lieu of an award pursuant to
section 46b-81. . . . In determining whether alimony shall be awarded, and
the duration and amount of the award, the court shall consider the evidence
presented by each party and shall consider the length of the marriage, the
causes for the annulment, dissolution of the marriage or legal separation,
the age, health, station, occupation, amount and sources of income, earning
capacity, vocational skills, education, employability, estate and needs of
each of the parties and the award, if any, which the court may make pursuant
to section 46b-81, and, in the case of a parent to whom the custody of minor
children has been awarded, the desirability and feasibility of such parent’s
securing employment.’’
General Statutes § 46b-84 provides in relevant part: ‘‘(a) Upon or subse-
quent to the annulment or dissolution of any marriage or the entry of a
decree of legal separation or divorce, the parents of a minor child of the
marriage, shall maintain the child according to their respective abilities, if
the child is in need of maintenance. . . .
***
‘‘(d) In determining whether a child is in need of maintenance and, if in
need, the respective abilities of the parents to provide such maintenance
and the amount thereof, the court shall consider the age, health, station,
occupation, earning capacity, amount and sources of income, estate, voca-
tional skills and employability of each of the parents, and the age, health,
station, occupation, educational status and expectation, amount and sources
of income, vocational skills, employability, estate and needs of the child.
. . .’’
6
The defendant also argues that the court neither found nor articulated
the earning capacity of either party, and, if the plaintiff wanted such a
finding, she should have requested that the court provide one.
7
The court also explained that this was a point of contention between
the parties because the defendant believed that the plaintiff could ‘‘achiev[e]
fame’’ and earn considerably more money if she more aggressively marketed
her work and made efforts to show her art at prestigious galleries.
8
The plaintiff’s attorney had argued to the trial court that her client
had no objection to giving the defendant the opportunity to refinance or
restructure the mortgage. The concern was in getting the plaintiff’s name
off of the obligation.
9
The defendant’s February 2, 2017 financial affidavit showed a gross
weekly income of $1300 but listed no deductions, whatsoever, for taxes.
His previous financial affidavits, however, showed various deductions for
taxes and health insurance, but were based on different sources of income.
10
The plaintiff argues on appeal that there was no evidence or testimony
with respect to the defendant’s tax obligations. She, nevertheless, arrived
at her own calculations, which, with the exception of federal income tax
liability, nearly are identical to the court’s calculations. She has not
addressed her methodology in her brief.
11
We recognize that the defendant had started a new self-employment
venture in January, 2017, for which he had an investor who was paying him
$1200 per week. The defendant provided no information on his financial
affidavit as to an estimate for federal and state taxes. Nevertheless, the
defendant had submitted financial information in the form of financial affida-
vits and tax returns, based on other employment opportunities he had under-
taken, that had both federal and state tax information, evincing varying tax
rates and deductions, ranging from 19 percent to more than 30 percent.
In Utz v. Utz, 112 Conn. App. 631, 637, 963 A.2d 1049, cert. denied, 291
Conn. 908, 969 A.2d 173 (2009), this court briefly discussed the difficulty a
trial court can encounter when calculating a net income if a party has various
financial documents that evince different tax rates, in that case, ranging
from 10 to 20 percent.