Gentile v. Carneiro

• Decision Date: 13 May 2008
• Docket Number: No. 28270.,No. 28165.,28165.,28270.
• Citation: 107 Conn.App. 630,946 A.2d 871
• Court: Connecticut Court of Appeals
• Parties: Bertha GENTILE v. Domingos CARNEIRO.

946 A.2d 871

107 Conn.App. 630

Bertha GENTILE v. Domingos CARNEIRO.

No. 28165.

No. 28270.

Appellate Court of Connecticut.

Argued January 4, 2008.

Decided May 13, 2008.

John A. Pinheiro, Bridgeport, filed a brief for the appellant (defendant).¹

Hugh D. Hughes, with whom, on the brief, were William F. Gallagher and Jacqueline F. Barbara, Shelton, for the appellee (plaintiff).

McLACHLAN, BEACH and PELLEGRINO, Js.

PELLEGRINO, J.

In this consolidated appeal, the defendant, Domingos Carneiro, appeals from orders made regarding the custody and support of the parties' minor children. On appeal, the defendant claims that the trial court (1) improperly determined his earning capacity to be $75,000, (2) improperly issued a supplemental support order applicable to his future commissions, (3) abused its discretion in awarding sole legal custody of his three minor children to the plaintiff, Bertha Gentile, (4) improperly awarded attorney's fees to the plaintiff and (5) improperly calculated his modified support obligation. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. The plaintiff and the defendant engaged in a three and one-half year relationship that produced three children. The plaintiff and the parties' three children currently live in Arizona,² while the defendant resides in Connecticut. The parties are not, and never have been, married to each other.

On August 17, 2004, the plaintiff filed a complaint for sole custody, support and other relief for her three minor children born of the defendant. Protracted discovery ensued, and, on September 20, 2006, the court held its final hearing on the plaintiff's complaint.³ At that hearing, the plaintiff and the defendant testified and also offered the testimony of one witness each.

On September 28, 2006, the court issued its memorandum of decision. The court found that beginning in 1989, the defendant operated his own carting business, known as D.C. Carting, Inc. (D.C. Carting). During the years 2001 through 2004, his net personal income from his carting business fluctuated from $80,000 to $278,000.⁴ On December 31, 2005, D.C. Carting went out of business, and the defendant did not thereafter engage in other full-time employment. On the basis of the defendant's background and experience, the court imputed to him an earning capacity of at least $75,000 per year.

The court found that the plaintiff has three children from a prior marriage and currently lives in Arizona with her husband and six children. Her only sources of income are the pendente lite child support payments received from the defendant and $157 weekly child support received from her previous husband. The plaintiff is not employed and is a homemaker.

The court then made twelve separate orders, four of which are relevant to the defendant's appeal. Specifically, the court ordered that (1) the plaintiff shall have sole legal and physical custody of the minor children, (2) the defendant shall pay $350 per week to the plaintiff for current child support, (3) the defendant shall pay, within ninety days, $6125 toward the plaintiff's counsel fees and (4) the defendant shall pay, within ninety days, $5000 toward costs incurred by the plaintiff.

On October 3, 2006, the defendant filed a motion to reargue, claiming, in part, that he has three additional minor children who are not the issue of the plaintiff and who were not accounted for in the court's ruling. The court granted the defendant's motion to reargue limited to the issues regarding the actual number of children that the defendant has and the amount of the child support award. On October 23, 2006, before the parties reargued the case, the defendant filed an appeal, with the docket number AC 28165, in which he challenged the court's September 28, 2006 ruling. On November 6, 2006, after the parties reargued the case, the court modified its weekly child support order to $346, retroactive to the date of its initial support order, to account for the defendant's three additional children.

The next day, November 7, 2006, the defendant filed a motion for modification of the court's support order on the basis of a substantial change in circumstances.⁵ The defendant claimed that his income was substantially lower than the $75,000 earning capacity the court imputed to him. On November 21, 2006, before the court ruled on the defendant's motion for modification, he filed a second appeal, with docket number AC 28270, which raised the same issues that were raised in AC 28165. On January 18, 2007, the court held a hearing on the defendant's motion for modification.

On February 21, 2007, the court issued its ruling on the defendant's motion for modification. The court found that the defendant currently is employed by Associated Carting, doing collections, sales dispatch and solicitation of new accounts. His gross weekly income from his employment is $600, and his net weekly income is $508. In addition to his weekly income, the defendant is entitled to a commission on an annualized basis. His commission is equal to one sixth of the value of all new accounts he solicits that continue to do business with Associated Carting for at least one year, minus $2000.

On the basis of the defendant's net weekly income of $508, the court ordered the defendant to pay $207 per week as child support. The court also issued a supplemental order requiring the defendant to pay as additional child support 50 percent of the first $20,000 in aggregate commissions that he is entitled to receive and 25 percent of any aggregate commissions in excess of $20,000.

On March 12, 2007, the defendant filed an amended appeal in AC 28165, claiming that the court improperly calculated the weekly support order of $207 and challenging the court's supplemental support order. Subsequently, AC 28165 and AC 28270 were consolidated under Practice Book § 61-7.

The defendant's consolidated appeal challenges both factual findings and legal conclusions of the court. Specifically, the defendant claims that the court (1) improperly determined that his earning capacity was $75,000, (2) improperly issued a supplemental order applicable to his future commissions, (3) abused its discretion in awarding sole legal custody of the children to the plaintiff, (4) improperly awarded attorney's fees to the plaintiff and (5) improperly determined his modified support obligation of $207 per week. We disagree with all the defendant's claims except the one pertaining to the court's supplemental order.

At the outset, we set forth the applicable standard of review. "As has been repeatedly stated by this court, 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. . . . Our function in reviewing such discretionary decisions is to determine whether the decision of the trial court was clearly erroneous in view of the evidence and pleadings in the whole record. . . . With respect to the financial awards in a [child support matter], great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . For that reason, we allow every reasonable presumption . . . in favor of the correctness of [the trial court's] action." (Citations omitted; internal quotation marks omitted.) Brent v. Lebowitz, 67 Conn.App. 527, 529-30, 787 A.2d 621, cert. granted on other grounds, 260 Conn. 902, 793 A.2d 1087 (2002) (appeal withdrawn April 25, 2002). Mindful of these principles, we turn to the issues at hand.

I

The defendant first claims that the court improperly imputed to him an earning capacity of $75,000. Specifically, the defendant argues that the court's finding was clearly erroneous in light of the evidence in the record. We disagree.

In its September 28, 2006 support order, the court made the following findings: "The defendant is forty-four years of age. He was born in Portugal. He lived there until age eight when he came to Bridgeport . . . . He has lived in Connecticut ever since. He attended public schools and completed the tenth grade. At [age] sixteen, he dropped out of school and went to work full-time. He has no other formal education. He worked various menial jobs until he was employed by the city of Bridgeport as a driver. After thirteen to fourteen years, he left the employ of the city of Bridgeport in 1995 to engage full-time in his own carting business known as D.C. Carting. . . . He started the business in 1989 and has engaged in it part-time while working full-time for the city of Bridgeport.

"The defendant's business receipts to D.C. Carting . . . were largely in the form of cash payments. He took numerous and large loans from his solely owned business to pay his personal expenses. During the years 2001 through 2004, the defendant's net personal income from his carting business fluctuated from $80,000 to $278,000 per year. On December 31, 2005, D.C. Carting went out of business, and the defendant has not engaged in full-time employment since then. . . . Since December 31, 2005, the defendant has not made a significant or good faith effort to find regular employment. . . . He knows people who will hire him when he is ready to work full-time, but he is not ready yet to work full-time." The court then concluded that the defendant is able to work a minimum of forty hours per week and, on the basis of his background and experience, has an earning capacity of at least $75,000.

"[T]he court may base financial awards on earning capacity rather than actual earned income of the parties. . . . While there is no fixed standard for the determination of an individual's earning capacity . . . it is well settled that earning capacity is not an amount which a person can theoretically...