Weinstein v. Weinstein

Decision Date20 November 2007
Docket NumberNo. 24855.,24855.
Citation934 A.2d 306,104 Conn.App. 482
CourtConnecticut Court of Appeals
PartiesNancy WEINSTEIN v. Luke A. WEINSTEIN.

Luke A. Weinstein, pro se, the appellant (defendant).

Lori Welch-Rubin, for the appellee (plaintiff).

FLYNN, C.J., and BISHOP and McLACHLAN, Js.

BISHOP, J.

This appeal returns to this court on remand from our Supreme Court; Weinstein v. Weinstein, 280 Conn. 764, 911 A.2d 1077 (2007); for resolution of the remaining claims of the defendant, Luke A. Weinstein, that the trial court improperly modified the child support order in that it (1) imputed an unsubstantiated earning capacity to him, (2) failed to deviate from the child support guidelines to account for the parties' joint physical custody arrangement and (3) awarded child support to the plaintiff, Nancy Weinstein, that was, in reality, disguised alimony. We reverse the judgment of the trial court.

The following facts and procedural history, set forth by the Supreme Court, are relevant to the resolution of the issues before us. "The court, Higgins, J., dissolved the parties' marriage on May 12, 1998. The judgment included an agreement that the parties would share joint physical custody of their minor child, who was born on January 27, 1996, and that the amount of child support the defendant then was paying would be recomputed at the guideline amount in September, 1998. In November, 1998, pursuant to a September 26, 1998 agreement of the parties, the court, Arena, J., ordered the defendant to pay child support to the plaintiff in the amount of $125 per week and to pay the sum of $661 per month directly to the child's day care provider. In adopting the parties' agreement, the court noted that the amount of support to which the parties had agreed represented an acceptable deviation from the guidelines because the parties equally shared physical custody of their child. Subsequently, on April 30, 2001, the court, Parker, J., increased the defendant's child support obligation to $160 per week because of an increase in his income and in light of the parties' joint custody arrangement.1

"On April 17, 2002, the defendant filed a motion for a downward modification of child support, claiming a decrease of his income due to the termination of his employment. In turn, on December 9, 2002, the plaintiff filed a motion for an upward modification of child support, claiming that the defendant's financial circumstances had improved since the previous modification in April, 2001. Following a hearing on December 9, 2002, the court, Jones, J., issued a preliminary memorandum of decision on April 3, 2003, in which it found that the defendant had an annual earning capacity of $125,000 and the plaintiff had an annual earning capacity of $25,000. Additionally, the court scheduled a supplemental hearing to consider the computation of child support under the guidelines based on the parties' earning capacities and their passive incomes. Specifically, the court gave the parties an opportunity to be heard on the question of whether the calculation of the defendant's income should include capital gains realized on certain assets he held and on the question of how to determine the appropriate amount of capital gains and investment income to be included in the calculation of the defendant's income for purposes of establishing a child support order. That hearing took place on April 21, 2003. . . .

"At the April 21, 2003 hearing, the defendant produced his 2002 federal income tax return, which indicated that he had received $11,424 of income from an investment account valued at $1,025,000 and $1597 in interest from a money market account worth $25,000. Thus, this evidence showed that the defendant's total passive income in 2002 was $13,021. . . . Therefore, the actual annual return on the defendant's accounts, calculated by dividing the income of $13,021 by the total value of $1,050,000, was 1.24 percent. . . .

"Subsequently, on July 3, 2003, the court denied the defendant's motion for a reduction in child support and granted the plaintiff's motion for an increase in child support, ordering the defendant to pay the sum of $285 per week. In reaching the amount of child support, the court considered its assessment of the parties' respective earning capacities and not their stated incomes from employment. Additionally, the court attributed the sum of $9724 as income to the plaintiff due to a distribution she received from a family partnership. As to the defendant, the court attributed to him an earning capacity based on his education and work history and also found that his annual income from investments and bank accounts amounted to $31,080. . . .

"In reaching this figure, the court stated: The income is imputed on the defendant's Schwab account ($1,025,000) and his checking account ($25,000) shown on his financial affidavit dated December 6, 2002. The interest rate is 2.96 percent, the five year [treasury] bill rate as of April 14, 2003. . . .

"The defendant appealed to the Appellate Court, claiming that, in awarding an increase in child support, the court improperly (1) imputed greater income to his investments and bank accounts than he actually realized, (2) imputed an unsubstantiated earning capacity to him, (3) failed to deviate from the child support guidelines to account for the parties' joint physical custody arrangement and (4) made an award of child support to the plaintiff that was, in reality, disguised alimony. . . .

"[T]he Appellate Court concluded that the trial court had abused its discretion by substituting its investment preferences for the defendant's, thereby imputing a higher rate of return to the defendant's investments. . . . Moreover, the Appellate Court concluded that, [b]ecause the court's determination of the defendant's passive income capacity was an integral part of its overall assessment of the defendant's income, its calculation of the defendant's total income was improper. . . . Accordingly, the Appellate Court reversed the judgment of the trial court and remanded the case to that court for a recalculation of the child support order without the imputed investment income." (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, supra, 280 Conn. at 766-69, 911 A.2d 1077.

Our Supreme Court reversed this court's judgment and concluded that "the trial court did not abuse its discretion in imputing income in the amount of $18,059, the difference between the income calculated using an ordinary rate of return, the 2.96 percent return on five year treasury bills in this case, and the defendant's actual income. For the foregoing reasons, we conclude that, in calculating a parent's income for purposes of a support obligation, the trial court may impute an ordinary rate of return to an asset that yields less than an ordinary rate of return. Accordingly, we reverse the judgment of the Appellate Court. Because the Appellate Court did not reach the defendant's three other claims on appeal, namely, that the trial court improperly imputed an unsubstantiated earning capacity, failed to deviate from the child support guidelines to account for the parties' joint physical custody arrangement, and awarded child support to the plaintiff that was, in reality, disguised alimony, we remand the case to that court for a resolution of these claims." Id., at 775-76, 911 A.2d 1077. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth our standard of review. "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 presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, 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 pleadings 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." (Internal quotation marks omitted.) Angle v. Angle, 100 Conn.App. 763, 771-72, 920 A.2d 1018 (2007). Mindful of these principles, we turn to the issues at hand.

I

The defendant first claims that the court imputed an unsubstantiated earning capacity to him of $156,080.2 Because we conclude that the record contains ample evidence to support the court's determination that the defendant had an earning capacity of $125,000, we disagree.

"In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in [General Statutes § 46b-84] (child support)." Bartel v. Bartel, 98 Conn.App. 706, 711, 911 A.2d 1134 (2006). "General Statutes § 46b-84[d] enumerates a number of factors which the court must consider in determining the respective abilities of the parents to provide maintenance for a child and the amount thereof." Lucy v. Lucy, 183 Conn. 230, 233, 439 A.2d 302 (1981). General Statutes § 46b-84(d) provides in relevant part: "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, vocational skills and employability of each of the parents. . . ."

Furthermore, "[i]t is well established that the trial court may under appropriate...

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