Schoenborn v. Schoenborn

144 Conn.App. 846

74 A.3d 482

Leszek M. SCHOENBORN

v.Malgorzata SCHOENBORN.

No. 34446.

Appellate Court of Connecticut.

Argued May 20, 2013.

Decided Aug. 13, 2013.

Leszek M. Schoenborn, self-represented, the appellant (plaintiff).

W. Anthony Stevens, Jr., with whom was Ronald T. Scott, Hartford, for the appellee (defendant).

DiPENTIMA, C.J., and GRUENDEL and DUPONT, Js.

GRUENDEL, J.

The self-represented plaintiff, Leszek M. Schoenborn, appeals from the judgment of dissolution rendered by the trial court. He claims that the court (1) abused its discretion in allocating parenting time between the parties, (2) improperly determined that the parties' antenuptial agreement was not unconscionable, (3) failed to consider the earning capacity of the defendant, Malgorzata Schoenborn, in rendering its child support order, and (4) erroneously calculated the plaintiff's earning capacity. We affirm the judgment of the trial court.

The court's comprehensive memorandum of decision contains the following relevant facts. The parties married in Waterbury on September 19, 2000, and three children were born of the marriage. Following the subsequent breakdown of the marriage, the plaintiff commenced a dissolution action in 2010. In response, the defendant filed an answer and a cross complaint. A three day trial followed in February, 2012. On March 2, 2012, the court rendered judgment dissolving the parties' marriage, finding that it had broken down irretrievably.

As part of the judgment of dissolution, the court made numerous factual findings and fashioned various orders. The court found, inter alia, that “[o]n September 18, 2000, the parties signed the antenuptial agreement. The plaintiff was represented by counsel and the defendant had the opportunity to review the agreement with independent counsel but knowingly waived that right. The parties were fully aware of the rights which they both chose to waive and there was fair and reasonable financial disclosure between them. The antenuptial agreement is not found to be unconscionable as of the time of the marriage or the time of dissolution. The antenuptial agreement is valid and enforceable, incorporated herein by reference thereto and included within the judgment of this court.” With respect to child support, the court found “[b]ased on the parties' net income and the child support and arrearage guidelines regulations, the court finds the presumptive amount of child support payable by the plaintiff husband to the defendant wife is $335 a week.”

After ordering joint legal custody of the minor children with primary physical custody vested in the defendant, the court adopted, as an order of the court, “the parenting plan set forth in the guardian ad litem's proposed orders dated February 16, 2012.” That plan provides in relevant part: “The [plaintiff] shall have parenting time with his son on Monday from after school through 8:00 p.m. and with his daughters on Wednesday from after school through 8:00 p.m. The [plaintiff] shall have parenting time with all three children every other weekend from Saturday at 9:00 a.m. through Sunday at 6:00 p.m. Ingrid will return to [the defendant] on Saturdays at 6:00 p.m., Isabelle and Albert shall spend the night through Sunday at 6:00 p.m.” From that judgment, the plaintiff appeals.¹

I

The plaintiff first claims that the court abused its discretion in allocating parenting time between the parties. “Our standard of review of a trial court's decision regarding custody, visitation and relocation orders is one of abuse of discretion.... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented.... Further, [t]he trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.” (Internal quotation marks omitted.) McKechnie v. McKechnie, 130 Conn.App. 411, 421, 23 A.3d 779, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).

In fashioning its visitation order, the court adopted the parenting plan proposed by Attorney Otto H. Iglesias, the guardian ad litem for the minor children. In so doing, the court evaluated not only the testimony of the parties, but also that of family relations officer Jaime Ment, and Stephen Humphrey, a psychologist who individually evaluated the parties and also conducted an interactional evaluation of the parties with the minor children. ² Iglesias, Ment and Humphrey all recommended limiting the plaintiff to alternating weekend visitation with the children. As the court noted, “[t]he plaintiff believes the singular recommendations of the three professionals to be the result of collusion. He cannot accept that he bears any responsibility for the recommendations being as they are. He should. The court does not find any collusion between the professionals and finds each performed their evaluations independently and thoughtfully.”

The court particularly credited the testimony and proposed visitation order of Iglesias. The court emphasized that “the involvement of the [guardian ad litem] continued after [Ment] and Humphrey completed their evaluations, and he was privy to the changing relationship between the daughters of the couple and the plaintiff....” The court found that “the [plaintiff's] parenting time was changed in the fall of 2011, by agreement of the parties.... The [plaintiff] had been spanking the [daughters], they were upset by being spanked, and they did not want to stay with him overnight. [The plaintiff] was not spanking [his son]. The [plaintiff] said that [his son] never lied or did anything bad to the girls, but the girls were being bullies to [the son]. The defendant ... is concerned that the [plaintiff's] disparate treatment of the children will affect their sibling relationship.” Those findings are supported by the record and, hence, are not clearly erroneous.

“[I]t is well established that the evaluation of a witness' testimony and credibility are wholly within the province of the trier of fact.” Szczerkowski v. Karmelowicz, 60 Conn.App. 429, 434, 759 A.2d 1050 (2000). “Credibility must be assessed ... not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude.... An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] ... [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) Blum v. Blum, 109 Conn.App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). We conclude that the court was well within its discretion to credit the testimony of the guardian ad litem and to adopt his proposed visitation order.

II

The plaintiff contends that the court improperly concluded that the parties' antenuptial agreement was not unconscionable. We disagree.

The following additional facts, as found by the court, are relevant to this claim. The parties met in the spring of 1999. The defendant recently had graduated from dental school and was in a residency program at St. Mary's Hospital in Waterbury. The plaintiff was in the business of acquiring, renovating and supervising rental properties. At that time, the plaintiff had assets exceeding $1.5 million in value, whereas the defendant had $1000 in assets.

At the behest of the plaintiff, the parties entered into an antenuptial agreement prepared by the plaintiff's attorney. The agreement provides in relevant part: “Whereas, each desires to keep all of his or her separate property whether now owned or hereafter acquired free from any claim of the other by virtue of the forthcoming marriage unless otherwise provided.... [The plaintiff] and [the defendant] hereto agree: (1) In any proceeding in which either party seeks a legal separation or a dissolution of the intended marriage under the law of the State of Connecticut or other jurisdiction in which one or both of the parties may be domiciled, [they] agree that in any such action neither will ask for any different or greater rights of relief than specified herein and that they will abide with and be bound by the provisions of this agreement now and hereafter.... (3) Neither [the plaintiff] or [the defendant] shall acquire by the intended marriage any right or title to or interest in any property owned by the other before such marriage; nor shall either [the plaintiff] or [the defendant] acquire after such marriage any right or title to or interest in the appreciation in the value of such property or in the proceeds from the sale of such property or in assets purchased by either [the plaintiff] or [the defendant] during said marriage with the proceeds from the sale of property owned by either party before the marriage or acquired after the marriage or with other funds.... (4) In the event that either [the plaintiff] or [the defendant] institutes a proceeding for legal separation or dissolution of the marriage ... each party ... agrees not to seek or accept and specifically waives any right to an alimony (maintenance) award, period or lump sum, temporary and/or permanent,or to a property settlement distribution against the other except as it pertains to property held in joint names with rights of survivorship.... (7) [E]ach party shall keep and retain sole ownership, control and enjoyment of all property, real and personal, the unrealized appreciation and proceeds thereof, accumulations and accretions added thereto, now owned or hereafter acquired and howsoever acquired by him or her, free and clear of any claim of the other during marriage or upon termination of the marriage by death or otherwise.” The parties signed that agreement on September 18, 2000, and...