Officially released May 14, 2019.
The Facts: The parties were married in 2007 and divorced eight years later after having two children. Husband had held multiple jobs and ultimately became an entrepreneur. His earnings had been as high as $180,000, one of his ventures failed resulting in his bankruptcy, and at time of dissolution he was making a modest income from an investor in a new venture. Wife sought a finding of an earning capacity for Husband but did not seek support and sought $1 per year alimony at time of dissolution. The trial court dissolved the parties’ marriage and entered orders as to custody and finances without finding an earning capacity for Husband. The trial court prepared a child support guideline worksheet with a split custody determination selected during the course of trial. It ultimately entered an order of shared custody.
The First Issue on Appeal was whether the court erred in failing to consider the best interests of the children by allegedly predetermining its orders before the close of evidence. The Appellate Court held that predetermination of evidence is impermissible as it implicates the court’s impartiality. See Yontef v. Yontef, 185 Conn. 275, 282 (1981) and Havis-Carbone v. Carbone, 155 Conn. App. 848, 866-67 (2015). A lack of impartiality must, absent plain error, be raised before the trial court. See Zilkha v. Zilkha, 167 Conn. App. 480, 486 (2016) and Jazlowiecki v. Cyr, 4 Conn. App. 76, 78-79 (1985). The Appellate Court reviewed the claim for plain error and found none. “the fact that the court input data into a worksheet before the close of evidence merely demonstrates that the court was considering and working on the case before it.”
The Second Issue on Appeal was whether the trial court failed to consider and rely upon Husband’s earning capacity. The Appellate Court found no abuse of discretion in the trial court’s not using the earning capacity argued for by Wife. It is within the sound discretion of the trial court to find an earning capacity and Wife did not seek substantive support in the trial. Further, there was no evidence that Husband had intentionally reduced his income to avoid his obligations.
The Third Issue on Appeal was whether the trial court lacked evidentiary support for its findings as to Husband’s net income. The Appellate Court Held that the child support guidelines must be based on some underlying evidence. See Ferraro v. Ferraro, 168 Conn. App. 723, 730 (2016). However, unlike in Ferraro, here Wife asked the trial court to rely on her representation of Husband’s income, and it did exactly what she asked. “[A] party cannot be permitted to adopt one position at trial and then … adopt a different position on appeal.” Szymonik v. Szymonik, 167 Conn. App. 641, 650, cert. denied, 323 Conn. 931 (2016).
The Judgment was affirmed.
