Pencheva-Hasse v. Hasse, 221 Conn. App. 113 (2023) (dissipation of assets did not result in consequences, underreporting of earnings did not result in earning capacity assignment)
Officially released August 15, 2023
In Short: Minimal appellate precedential value. Husband was found to have dissipated assets but was awarded the lion’s share of the marital estate, and was found to have underreported his income but was not assigned an earning capacity nor ordered to pay any alimony. Husband appealed and lost.
The parties were married in 2009 and had one child. Wife commenced the divorce in 2020. The matter was tried before Judge Shluger over four days. A Guardian Ad Litem testified in support of a shared parenting plan. The trial court entered a memorandum of decision. The findings of the trial court were as follows:
At the time of marriage, Wife was a twenty-four-year-old Bulgarian citizen on a temporary visa, who thereafter began working at Husband’s law firm, initially without a salary, but later for modest payroll. At the time of the divorce Wife was working at Home Depot earning net income of $366 per week.
At the time of the marriage Husband was a fifty-one-year-old attorney who was sole proprietor of a busy criminal and personal injury practice and served as appointed counsel in the federal court system. At time of trial, Husband claimed to earn only $612/week gross income, and despite years of tax returns showing gross receipts of between $410,000 and $537,000, his returns never showed a profit in excess of $36,000 per year. The trial court stated that it “strains the credulity of the court that this experienced and capable trial attorney earns no income …” while spending monies on his child, including for private school. The trial court specifically found that Husband understated his income.
The trial court made further findings regarding substantial real estate holdings that Husband owned prior to the marriage and other assets of Husband, as well as suspicious large withdraws that Husband contemporaneously with the divorce. The trial court found that Husband “failed to adequately explain how he had used, spent or dissipated these funds [and] concluded that [Husband] had violated the automatic orders by withdrawing vast sums of money from his bank accounts …”
Wife argued that the trial court should find an earning capacity for Husband, but the trial court declined to do so (leaving me baffled, particularly with the specific finding that Husband understated his income), citing lack of an expert witness.
The trial court ordered that Wife be provided the marital residence and that Husband essentially keep his assets, determining that these orders provided Wife with $425,000 of assets and Husband with $832,500 plus the $342,000 that it found that Husband withdrew during the pendency of the action in violation of the automatic orders. The trial court awarded no alimony. (Once again, I feel I must be missing something substantial to justify these orders in light of the trial court’s factual findings, at least as recited in the Appellate decision).
The trial court ordered a shared parenting plan. It ordered child support based on the actual claimed earnings of the parties and provided Husband a downward deviation based on the shared parenting plan, ordering only $70 per week in child support and an equal division of unreimbursed medical costs and work-related childcare.
Husband then proceeded to appeal his (seemingly undeserved and baffling) total grand-slam victory. Wife did not participate in the appeal (perhaps because she had been awarded no alimony, $70 per week child support, no counsel fees, and a house, and could not afford an appellate attorney on a Home Depot wage while supporting her child).
Husband’s first claim on appeal was that the trial court erred in applying the child support guidelines by improperly calculating the parties’ incomes and deviating from the guidelines, arguing that the evidence did not support an earning capacity. The Appellate Court noted that the trial court’s ordinary discretion is somewhat limited for application of the child support guidelines. The Appellate Court found that the trial court did not rely on an earning capacity (much to Wife’s disappointment) and found no error in the trial court’s deviation based on a shared parenting plan. The trial court had followed all the requisite steps in entering such an order.
Husband’s second claim on appeal was that the trial court abused its discretion by entering order of custody that were not consistent with the best interests of the child. The Appellate Court made short work of this, simply citing the trial court’s discretion, noting that the trial court stated it considered all the relevant statutory criteria, and refusing to reweigh the evidence.
Husband’s third claim on appeal was that the trial court abused its discretion in the property distribution by not considering Husband’s lifelong financial contributions in obtaining assets prior to the marriage and incorrectly finding that he dissipated assets. Husband seemed to miss the fact that the trial court awarded him all of his premarital assets and made findings of a substantial dissipation by him. The Appellate Court noted that Husband was permitted to keep all his solely owned property and the lion’s share of the marital estate and found no abuse of discretion.
The Judgment was affirmed. (And I am left as confused as to both the trial court’s decision and Husband’s choice to take an appeal – however, having not read the underlying trial decision nor observed the trial, my reactions should be taken with a grain of salt.)