Britto v. Britto , 166 Conn. App. 240 ( 2016 )

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MARY ANN BRITTO v. JOHN J. BRITTO, JR.
(AC 36973)
(AC 37117)
DiPentima, C. J., and Alvord and Agati, Js.
Argued March 8—officially released June 14, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Howard T. Owens, Jr., judge trial
referee.)
William B. Kellogg, for the appellant (defendant).
Timothy F. Butler, with whom was Meredith F.
McBride, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant, John J. Britto, Jr., appeals
from the judgment of the trial court dissolving his mar-
riage to the plaintiff, Mary Ann Britto. In these consoli-
dated appeals,1 the defendant claims that the court’s
findings as to his annual income and the values assigned
to certain real estate holdings were clearly erroneous
in light of the evidence in the record, and that the
court abused its discretion by entering financial orders
applicable to the defendant that were erroneous and
burdensome. We reverse the judgment of the trial court
limited to its findings regarding the values it assigned
to the real estate holdings because we conclude that
the court improperly disregarded the parties’ stipulation
as to those valuations.
The following facts and procedural history are rele-
vant to the defendant’s appeal. The parties were married
on September 4, 1994, and two children were born of
the marriage.2 The plaintiff filed for dissolution of mar-
riage on March 28, 2012, and a trial commenced on
September 18, 2013.
The defendant was the principal owner of A-1 Janito-
rial, LLC, a single-member limited liability company,
and he also owned several residential rental properties
in Bridgeport. Prior to the trial, a forensic accountant
was hired to determine the defendant’s income from
his janitorial company. The defendant did not provide
the accountant or the court with tax returns from the
previous year (2012) or certain other business records
that could have aided in determining the defendant’s
income. Ultimately, the court found that the defendant
had intentionally tried to hide assets: ‘‘The court is
particularly concerned with the [defendant’s] flagrant
violations of the court orders relating to the transfer
of assets. He fully acknowledged that several transfers
of cash and real property were made deliberately subse-
quent to the service of process and the complaint in
this dissolution action.’’3
On October 8, 2013, the court rendered judgment
dissolving the marriage. The court issued its memoran-
dum of decision on December 20, 2013, and ordered
the defendant to pay alimony of 30 percent of his net
annual income for sixteen years from the date of the
judgment. Net income was defined by the court as: ‘‘all
gross receipts from [the defendant’s] self-employment,
including but not limited to A-1 Janitorial, LLC, and A-
1 Properties, LLC, after deductions for reasonable and
actual business expenditures and state and federal
taxes.’’4 On the basis of the forensic accountant’s analy-
sis, the court concluded that the defendant’s net income
for 2012 was $230,000. Income taxes were not deducted.
The defendant did not provide the court with evidence
of income tax liability, and he did not claim to owe
taxes on his income.5
The court also ordered the defendant to pay the plain-
tiff the cash equivalent of 60 percent of the value of
four Bridgeport properties. The court found that the
properties had been purchased by the defendant’s girl-
friend and his father using marital assets provided to
them by the defendant while the divorce was pending.
The court identified the four properties and their
assigned values as: 25 Cartright Street, Unit 1K
($106,917); 2980 Madison Avenue, Unit G ($106,892);
2950 Madison Avenue, Unit C ($72,444); and 3012-7 Mad-
ison Avenue6 ($107,041). The defendant was also
ordered to pay to the plaintiff $191,641.95, representing
the amount of marital assets that was transferred to
the defendant’s father while the dissolution of marriage
was pending.7 This appeal followed.
‘‘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. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . 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. . . . Therefore, to
conclude that the trial court abused its discretion, we
must find that the court either incorrectly applied the
law or could not reasonably conclude as it did.’’ (Cita-
tion omitted; internal quotation marks omitted.) Men-
sah v. Mensah, 145 Conn. App. 644, 651–52, 75 A.3d
92 (2013).
I
The defendant claims on appeal that the court erred
in calculating his net income for purposes of alimony.
The defendant argues that the court’s finding was
clearly erroneous because the court relied on evidence
of his gross income and did not consider his tax liability.
We disagree.
‘‘It 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 or not
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.’’ (Internal quotation marks omitted.)
Cleary v. Cleary, 103 Conn. App. 798, 801, 930 A.2d
811 (2007).
This court cannot pass on issues of credibility and
must defer to the trier of fact’s assessment thereof.
Mensah v. Mensah, supra, 145 Conn. App. 651–52. The
court, as trier of fact in this case, imputed a net income
of $230,000 to the defendant.8 A review of the record
supports the court’s finding that $230,000 was the defen-
dant’s income net of taxes.
The court was not provided with the defendant’s
income tax filing for the previous year (2012), and the
defendant testified that he had represented to the Inter-
nal Revenue Service that he had no tax liability for
2012. The testimony of the forensic accountant only
covered the valuation of A-1 Janitorial, LLC, and the
veracity of the company’s records. The accountant did
not testify as to the defendant’s personal tax liability.
On the basis of the evidence, the court could reasonably
conclude that the defendant’s gross income was equiva-
lent to his net income because he testified that he had
no tax liability. The defendant has complained about a
lack of evidence presented to the court to establish
his income after taxes, but if evidence of tax liability
existed, the defendant was in the best position to dis-
close that information, and he failed to do so. We con-
clude that there was sufficient evidence to support the
court’s finding that the defendant’s income after taxes
was $230,000.
II
The defendant also claims that the court’s findings
as to the values of the four Bridgeport properties that
were acquired for the defendant by his girlfriend and
his father were clearly erroneous. The court ordered
the defendant to pay the plaintiff 60 percent of the value
of the four properties acquired in this manner. Before
the court entered its order, the parties stipulated as to
the values of each of the four properties. However, the
court’s judgment relied upon values that were greater
than the parties’ stipulation. We conclude that the court
exceeded its authority by disregarding the stipulation.
The court’s findings as to valuation are severable from
its financial orders. Remanding this issue to the court
does not implicate the correctness of the court’s other
financial orders.
The following additional facts are relevant to the
defendant’s claim. The parties stipulated as to the value
of thirteen properties that were potentially marital
assets.9 This stipulation contradicted an earlier submis-
sion by the plaintiff as to the values of some of the
properties. In fact, several of the properties were
assigned an agreed upon lower value than the plaintiff
had previously proposed.10 The stipulation was entered
as an exhibit with the court.
In its financial orders, the court awarded the plaintiff
title to the marital home, a time-share, and four residen-
tial rental properties. The defendant retained title to all
other properties that were listed in his name. As for
the properties in dispute, the court elected to award
the plaintiff 60 percent of the value of four of the proper-
ties. The court disregarded the stipulation agreed to by
the parties regarding valuation of the four properties.
Instead, the court used the higher valuations that the
plaintiff had originally proposed. In its memorandum
of decision, the court made no finding as to its basis for
adopting the higher valuations. A review of the record
reveals that the court did not notify the parties that it
was disregarding the stipulated values.
A
We begin with our standard regarding a stipulation.
‘‘In general, the effect of a trial stipulation by the parties
is well established. While stipulations are not necessar-
ily binding on the court and may justifiably be disre-
garded in certain circumstances, they ordinarily are
adopted by the court. . . . If the court decides that it
cannot adopt the parties’ stipulation, the court should
state on the record its disapproval of the agreement,
as well as the reasons for its disapproval. . . . The
court also should offer the parties an opportunity to
present evidence prior to proceeding to judgment. . . .
A trial court exceeds its authority if it disregards the
terms of the parties’ stipulation without notifying the
parties and providing them an opportunity fully to liti-
gate the controversy.’’ (Citations omitted; internal quo-
tation marks omitted.) Cupe v. Commissioner of
Correction, 68 Conn. App. 262, 268–69, 791 A.2d 614,
cert. denied, 260 Conn. 908, 795 A.2d 544 (2002).
At no point did the court state on the record its
disapproval of the stipulation or provide its reasons for
disregarding it. The record does not indicate that the
court notified the parties that it was disregarding their
stipulation or that the court provided the parties an
opportunity to fully litigate the valuation issues.
Although the court may have had a sound basis to
disregard the stipulation, the court abused its discretion
by not complying with our well settled procedural
standards.
B
Having concluded that the court abused its discre-
tion, we must consider whether reversing the court’s
judgment regarding the valuations will require reconsid-
eration of the entirety of the court’s financial orders.
‘‘We previously have characterized the financial orders
in dissolution proceedings as resembling a mosaic, in
which all the various financial components are carefully
interwoven with one another. . . . Accordingly, when
an appellate court reverses a trial court judgment based
on an improper alimony, property distribution, or child
support award, the appellate court’s remand typically
authorizes the trial court to reconsider all of the finan-
cial orders. . . . We also have stated, however, that
[e]very improper order . . . does not necessarily merit
a reconsideration of all of the trial court’s financial
orders. A financial order is severable when it is not in
any way interdependent with other orders and is not
improperly based on a factor that is linked to other
factors. . . . In other words, an order is severable if
its impropriety does not place the correctness of the
other orders in question.’’ (Citations omitted; internal
quotation marks omitted.) Maturo v. Maturo, 296 Conn.
80, 124–25, 995 A.2d 1 (2010).
Only the plaintiff’s portion of the real property in the
marital estate will be diminished by adopting the values
stipulated to by the parties.11 The plaintiff has informed
this court that upon a finding of error by the trial court,
she has no interest in opening the remaining orders of
the judgment. There is no evidence in the record that
the court’s valuation findings were interdependent with
other orders and are based on a factor that is linked
to other factors. Accordingly, the valuation findings are
severable from the court’s financial orders.
III
We now address the defendant’s claim that the court
erred by distributing the same marital asset twice. Spe-
cifically, the defendant argues that the court erred by
awarding the plaintiff $99,505.77 that he had transferred
from the marital estate, in violation of the court’s auto-
matic stay on transfers, as well as 60 percent of the
value of the real estate that these transferred funds
were directly used to purchase.12 We disagree. The
defendant has failed to show that the court’s financial
orders were clearly erroneous.
The court found that the defendant transferred
$191,641.95 out of the marital estate in violation of the
court’s automatic orders prohibiting dissipation of mari-
tal assets.13 As part of its financial orders, the court
ordered the defendant to pay the plaintiff 100 percent
of these funds. The defendant presented evidence that
some of these funds were directly used to finance the
purchase of residential rental properties where title was
acquired in the name of the defendant’s girlfriend and
his father. The plaintiff was awarded 60 percent of the
value of four properties that were purchased by the
defendant’s girlfriend or his father using marital assets
provided to them by the defendant.14
An appellant bears a heavy burden to show that the
court’s findings of fact were clearly erroneous. In re
Halle T., 96 Conn. App. 815, 825, 902 A.2d 670, cert.
denied, 280 Conn. 924, 908 A.2d 1087 (2006). ‘‘With
respect to the financial awards in a dissolution action,
great weight is given to the judgment of the trial court
because of its opportunity to observe the parties and
the evidence. . . . Our function in reviewing such dis-
cretionary decisions is to determine whether the deci-
sion of the trial court was clearly erroneous in view of
the evidence and pleadings in the whole record. . . .
In other words, judicial review of a trial court’s exercise
of its broad discretion in domestic relations cases is
limited to the questions of whether the [trial] court
correctly applied the law and could reasonably have
concluded as it did. . . . In making those determina-
tions, we allow every reasonable presumption . . . in
favor of the correctness of [the trial court’s] action.’’
(Internal quotation marks omitted.) Wood v. Wood, 160
Conn. App. 708, 723, 125 A.3d 1040 (2015).
Throughout the trial and even now on appeal, quanti-
fying the full extent of the assets available to the defen-
dant and tracing the prohibited transfers of marital
assets is akin to the challenge of hitting a moving target.
During the trial, the defendant admitted that while being
deposed he lied about assisting in the purchase of a
condominium for his girlfriend.15 The court found that
the defendant made ‘‘flagrant violations of the court
orders relating to the transfer of assets’’ and attempted
to hide assets. Now on appeal, the defendant represents
to this court that in his initial brief he confused which
properties were purchased with the marital assets trans-
ferred in violation of Practice Book § 25-5.
The defendant clearly sought to deceive the trial
court, yet now complains that the court in fact misap-
prehended the conversion of marital assets into real
estate and the total value of the marital estate. It is the
defendant’s burden to show how the court’s financial
orders were clearly erroneous. Instead, the defendant
has adopted a narrow view of the court’s financial
orders and has not presented a clear and concise
accounting of all of the marital assets that he transferred
from the marital estate. As the trial court noted in its
memorandum of decision, ‘‘[t]he [defendant] has in fact
turned a relatively uncomplicated dissolution action
into a knotty and labyrinthian exercise . . . .’’ In view
of the entire record in this case, we conclude that the
trial court’s division of assets was not clearly erroneous.
IV
In his final claim, the defendant argues that the court
abused its discretion in entering financial orders that
the defendant cannot satisfy. The defendant complains
that he has been ordered to make monthly payments
of child support, alimony, restitution for money trans-
ferred out of the marital estate, and the plaintiff’s inter-
est in the defendant’s real estate holdings. We conclude
that the trial court did not abuse its discretion.
‘‘Our review is guided by the well established princi-
ple that [t]he resolution of conflicting factual claims
falls within the province of the trial court . . . [and]
[t]he trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole.’’ (Internal
quotation marks omitted.) Hopfer v. Hopfer, 59 Conn.
App. 452, 457, 757 A.2d 673 (2000).
Apart from the argument advanced in part II of this
opinion, the defendant does little more than express
general dissatisfaction with the court’s financial orders.
The court made detailed findings concerning the par-
ties, including but not limited to those related to the
amount and sources of their incomes, their financial
assets, and their liabilities. The defendant has not pro-
vided any detailed facts to refute these findings or to
demonstrate his inability to meet the court’s financial
orders. The court did not abuse its discretion.
The judgment is reversed only as to the trial court’s
decision to disregard the parties’ stipulation as to the
values assigned to certain real estate holdings and the
case is remanded with direction to incorporate the stip-
ulated values in the financial orders in accordance with
this opinion. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
On June 27, 2014, the defendant appealed (AC 36973) from the dissolution
judgment as amended and clarified. On August 19, 2014, after the trial court
issued a second clarification and a postjudgment order that the defendant
pay the fees of a forensic accountant, the defendant filed a second appeal
(AC 37117) claiming error in regard to the ordered fees. In December, 2014,
the defendant amended his appeal in AC 36973 to challenge additional trial
court rulings on numerous postjudgment motions, including motions for
contempt and motions for counsel fees. On January 6, 2016, this court
ordered that the appeals be consolidated.
The defendant has not briefed the claims of error identified on his appeal
form in AC 37117 or on his amended appeal form in AC 36973. The defendant
has therefore abandoned these claims. See Deutsche Bank National Trust
Co. v. Bertrand, 140 Conn. App. 646, 648 n.2, 59 A.3d 864, cert. dismissed,
309 Conn. 905, 68 A.3d 661 (2013).
2
Both children were minors at the time of the dissolution judgment.
3
In an articulation issued by the court on June 12, 2015, the court further
stated: ‘‘[A]s set forth in the original order, the court found that the defendant
wilfully and intentionally failed to disclose his true income on his financial
affidavit which was relied upon by the court in the Stipulation and Order
Regarding Support dated June 21, 2012.’’
4
The court provided its definition of ‘‘net income’’ in an amendment to
and clarification of its order.
5
During his testimony, the defendant was shown a federal income tax
extension form for tax year 2012 that was sent to the Internal Revenue
Service and prepared by the defendant’s accountant. The defendant testified
that the form stated that he would have zero tax liability for 2012.
6
In their briefs, the parties refer to this property as 3012 Madison Avenue,
Unit F.
7
The court also issued orders dividing other assets of the marital estate
and awarding child support. These orders have not been appealed.
8
In the text of his brief, the defendant implies that the court’s finding of
$230,000 of gross income was not supported by evidence. After reviewing
the record we disagree. On the basis of those partial business financial
records that were obtained despite the defendant’s recalcitrance, the foren-
sic accountant testified at trial that A-1 Janitorial, LLC, generated $221,869
in earnings for the defendant in 2012. The accountant testified that he tested
his assumptions about the business by also looking at the defendant’s annual
cash flows and personal expenses over a three year period. Using this
approach, the accountant concluded that on average the defendant received
$180,000 in earnings from A-1 Janitorial, LLC, per year and an additional
$52,000 per year in salary from A-1 Janitorial, LLC.
In estimating the defendant’s 2012 earnings as $221,869, the accountant
testified that the figure did not include any income that the defendant may
have received from another job he worked or rental properties that he owned.
In addition, the accountant testified that he believed that A-1 Janitorial, LLC,
had unreported sales in 2012 based on tax documents and the defendant’s
own representations. In his calculations, the accountant included an estimate
for the unreported sales, but he also testified that if actual sales were higher,
then his estimate of the defendant’s earnings from the business would be
higher. Finally, he testified that the defendant did not draw a salary from
A-1 Janitorial, LLC, in 2012.
On the basis of the record, there was evidence to support the court’s
conclusion that the defendant’s income was $230,000.
9
When the stipulation was submitted to the court, the defendant’s counsel
informed the court that, although he agreed with the property values, he
did not agree that the court had subject matter jurisdiction over all of the
properties listed. The defendant’s girlfriend and his father held title to six
of the properties listed as part of the stipulation.
10
The valuations of the following properties decreased in the stipulation:
25 Cartright Street, Unit 1K, Bridgeport (stipulated value: $70,400); 2980
Madison Avenue, Unit G, Bridgeport (stipulated value: $49,500); 2950 Madi-
son Avenue, Unit C, Bridgeport (stipulated value: $60,500); 3012 Madison
Avenue, Unit F, Bridgeport (stipulated value: $60,500); 50 Greenhouse Road,
Unit 41D, Bridgeport (stipulated value: $63,800); and 65 Hedgehog Road,
Trumbull (stipulated value: $291,500) The plaintiff was not awarded any
portion of the value of the real estate located on Greenhouse Road and
Hedgehog Road.
11
The sum of $152,394 is the difference between the values that the court
adopted from the plaintiff’s proposed amended orders that were submitted
on September 19, 2013, and the values that the parties stipulated to in court
on October 8, 2013. Applying the trial court’s 60 percent allocation in favor
of the plaintiff to the lower values from the stipulation will reduce the
plaintiff’s financial award by $91,436.40. The plaintiff’s counsel stated during
oral argument before this court: ‘‘The court can easily just order the valua-
tions changed, it doesn’t impact the rest of [the financial orders]. That is a
detriment to my client, she’s going to get less money as a result of that, she
understands that. . . . The mosaic that would be upset if it’s upset in any
fashion, it’s only to the detriment of my client, and she’s aware of this and
so advised me to relay to the court.’’
12
In his brief, the defendant argued that the court had erred as to its
financial orders regarding three Bridgeport properties: 3012 Madison Ave-
nue, Unit F; 2890 Madison Avenue, Unit G; and 25 Cartright Avenue, Unit
1-K. In his reply brief, he has dropped this claim as it pertains to 2890
Madison Avenue, Unit G and 25 Cartright Avenue, Unit 1-K. However, he
now argues that his claim also applies to the real estate located at 2950
Madison Avenue, Unit C, Bridgeport. The defendant’s only explanation for
the change is that he confused the properties.
13
The rules of practice address automatic orders in family matters. Prac-
tice Book § 25-5 provides in relevant part: ‘‘The automatic orders shall be
effective with regard to the plaintiff or the applicant upon the signing of
the complaint or the application and with regard to the defendant or the
respondent upon service and shall remain in place during the pendency of
the action, unless terminated, modified, or amended by further order of a
judicial authority upon motion of either of the parties . . . [i]n all cases
involving a marriage or civil union, whether or not there are children . . .
[n]either party shall sell, transfer, exchange, assign, remove, or in any way
dispose of, without the consent of the other party in writing, or an order
of a judicial authority, any property, except in the usual course of business
or for customary and usual household expenses or for reasonable attorney’s
fees in connection with this action . . . [and] [n]either party shall conceal
any property. . . .’’
14
The plaintiff contends that additional cash was withdrawn from the
business during the pendency of the divorce and that there was no account-
ing for the size of these withdrawals or how this money was used by
the defendant.
15
‘‘[The Plaintiff’s Counsel]: Do you recall being asked these questions
about 2950-C Madison Avenue condominium at your deposition?
‘‘[The Defendant]: I believe so.
‘‘[The Plaintiff’s Counsel]: And do you recall me specifically asking you
whether you made any contributions to that property?
‘‘[The Defendant]: I think so, yes.
‘‘[The Plaintiff’s Counsel]: And do you recall hearing this question: And
is—question, and it’s your testimony that none of the income that you have
earned has gone towards or been contributed towards the purchase of the
condominium as far as you know that was done by Elizabeth Pereira. And
your answer was, excuse me, yes, that’s correct. Do you recall that tes-
timony?
‘‘[The Defendant]: Yeah, I believe I do.
‘‘[The Plaintiff’s Counsel]: Pardon?
‘‘[The Defendant]: Yes, I believe I do.
‘‘[The Plaintiff’s Counsel]: So that testimony that you gave was false, is
it not?
‘‘[The Defendant]: I’m sorry, is it false?
‘‘[The Plaintiff’s Counsel]: Is it false?
‘‘[The Defendant]: Yes, I have interest into it, yes.
‘‘[The Plaintiff’s Counsel]: So at the time when I asked you on June 19,
2013, under oath whether you had an interest in it, you denied it. Now today,
you acknowledge it.
‘‘[The Defendant]: After speaking to my attorney, correct.’’