Barcelo v. Barcelo

158 Conn.App. 201

118 A.3d 657

Simona Casarini BARCELO

v.Daniel BARCELO.

No. 36276.

Appellate Court of Connecticut.

Argued Jan. 21, 2015.

Decided June 30, 2015.

Thomas M. Shanley, Greenwich, for the appellant (plaintiff).

Samuel V. Schoonmaker IV, with whom was Wendy Dunne DiChristina, for the appellee (defendant).

BEACH, KELLER and PELLEGRINO, Js.

Opinion

KELLER, J.

The plaintiff, Simona Casarini Barcelo, appeals from the trial court's financial orders entered in the context of its judgment of dissolution. She claims that the court erred by (1) awarding her time limited alimony and precluding modification of her time limited alimony award, (2) failing to order Daniel Barcelo, the defendant, to pay for the parties' minor children's private school tuitions and failing to reserve jurisdiction to enter an order regarding their minor children's postsecondary education, (3) ordering her to refinance the parties' existing mortgage on their marital home, pay the defendant 50 percent of the net equity in the marital home, and immediately remove his name from the existing mortgage on the marital home, (4) awarding sole ownership of a Louis XVI armoire to the defendant, (5) ordering the defendant to pay her 15 percent of his future bonus income by way of a supplemental child support order, and (6) ordering the parties to submit to arbitration to resolve any future disputes over the distribution of their personal property. We reverse all of the court's financial orders in the judgment of dissolution and remand the matter for the court to conduct further proceedings to reconsider all of its financial orders¹ on the basis of our conclusion that the court erred by (1) ordering the defendant, by way of a supplemental child support order, to pay the plaintiff 15 percent of his future bonus income, (2) failing to provide notice to the parties, prior to rendering its judgment of dissolution, that it would not reserve jurisdiction to enter postsecondary educational support orders for the parties' minor children, and (3) ordering the parties to submit to arbitration to resolve any future disputes over the distribution of their personal property. We affirm the judgment in all other respects.²

The following procedural history is relevant here. The plaintiff filed an action for dissolution in July, 2011, and the matter was tried before the court over the course of three days in May, 2013. The court rendered the judgment of dissolution on November 5, 2013. In rendering its decision, the court found and considered the following facts, which are relevant to this appeal. “The parties were married on September 17, 1994, in Pals, Spain. Two children are the issue of the parties' marriage....

“[At the time of the dissolution, the] plaintiff [was] a forty-four year old woman in good health. She has a degree in marketing from Syracuse University. The plaintiff was employed at Giovanni Piranesi from 1993 until the birth of their son in 2000 and has been working as a part time residential realtor since 2008. From 2008 through [2013] the plaintiff has earned the following amounts after expenses: $164 in 2008, $54 in 2009, $3700 in 2010, $1517 in 2011, $18,000 in 2012 and $2000 year to date without expenses calculated and [she] anticipates an additional commission of $14,000 in 2013. [At the time of the dissolution, the] defendant [was] a forty-three year old man in good health. He has a bachelor's degree from Syracuse University and is a chartered financial analyst. The defendant has held various jobs in finance with a specialization in the oil and gas industry.... The defendant is presently employed by Rus Petro with an annual salary of $70,000 plus a discretionary bonus in an undetermined amount. Their eldest child has attended ... a private school, since fifth grade. The tuition [for the 2013 academic year] was $40,000. Their youngest child has attended ... a private school for the last two years. The tuition for his school [for the 2013 academic year] was $10,000....

“The parties also received or had access to, either individually or as a couple, monetary gifts from the plaintiff's parents ... throughout the course of the parties' marriage that enabled them to live beyond their means based on their collective earnings.... Ultimately, all things considered ... the cause of the breakdown of the parties' marriage was their irreconcilable differences stemming from their respective extramarital affair(s) and their difficulty in being intimate with each other.”

The plaintiff filed the present appeal following the court's judgment of dissolution. Specifically, she is appealing orders that the court entered in the judgment concerning alimony, real and personal property distributions, child support, and arbitration, as well as its failure to enter orders concerning expenses for the parties' minor children's private school tuitions and postsecondary educational support. Additional facts will be set forth as necessary.

We begin by setting forth the general standard of review governing a court's orders in a judgment of dissolution. “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.... 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.” (Internal quotation marks omitted.)

Cimino v. Cimino, 155 Conn.App. 298, 300–301, 109 A.3d 546, cert. denied, 316 Conn. 912, 111 A.3d 886 (2015).

“A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court's action to determine ultimately whether the court could reasonably conclude as it did.... This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) Id., at 303, 109 A.3d 546.

In addition, we must review whether the court properly considered the child support guidelines; Regs., Conn. State Agencies § 46b–215a–1 et seq. ; when it entered the supplemental child support order. “The question of whether, and to what extent, the child support guidelines apply ... is a question of law over which this court ... exercise[s] plenary review.” (Internal quotation marks omitted.) Dowling v. Szymczak, 309 Conn. 390, 399, 72 A.3d 1 (2013).

I

Among the plaintiff's claims is her assertion that the court erred by entering a supplemental child support order that awarded her 15 percent of the defendant's future bonus income without adequately considering the financial needs of the parties' minor children or abiding by the child support guidelines. We agree that the court failed to properly consider the child support guidelines and failed to consider the financial needs of the children when entering the supplemental child support order.

The following additional facts are relevant here. At trial, the plaintiff requested that the court impute an earning capacity for the defendant, who claimed to be earning a salary of $70,000 per year with an expectation of a bonus that had yet to be determined. The court, after reviewing the defendant's annual net earnings between 2005 and 2011, determined that the defendant consistently had been a high wage earner, and imputed an earning capacity to the defendant in an annual gross amount of $250,000, which the court calculated as an imputed net weekly income of $2985.³ The court also found the plaintiff's weekly net income to be $347. Without noting the required presumptive amount of child support due under the child support guidelines on the basis of the parties' actual combined net weekly incomes, in deviation of the guidelines, based on a calculation of the defendant's imputed net income, the court entered the following child support order, in relevant part: “[T]he defendant shall pay child support to the plaintiff in the amount of $512 per week ... until the parties' daughter ... attains the age of eighteen (18), or if she is still attending high school when she attains the age of eighteen (18), until she completes her high school education or attains age nineteen (19), whichever event shall first occur. Thereafter, the defendant shall pay child support to the plaintiff for the parties' son ... consistent with the child support guidelines then in effect until the same age conditions occur as set forth herein for [the parties' daughter].

“The defendant shall pay to the plaintiff fifteen (15%) percent of any bonus accruing to himself, regardless of the source, during the aforementioned child support period.”⁴

The court also ordered the defendant to maintain medical insurance for the benefit of the minor children so long as it was available through and subsidized at substantially the same level by his employer, and ordered the parties to share equally all unreimbursed medical and dental expenses for the minor children until they graduated from high school or...