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Febbroriello v. Febbroriello

Court of Appeals of Connecticut

April 10, 1990

Margaret FEBBRORIELLO
v.
Michael FEBBRORIELLO.

Argued Jan. 4, 1990.

Page 1033

Louis Parley, New Haven, for appellant (defendant).

Edward J. Dolan, New Haven, for appellee (plaintiff).

Before SPALLONE, DALY and NORCOTT, JJ.

[21 Conn.App. 201] NORCOTT, Judge.

The defendant appeals challenging the financial orders entered by the state trial referee acting as the trial court in a dissolution action. On appeal, the defendant claims that the trial court erred (1) in basing the alimony and child support orders on an improper income analysis, (2) in basing the division of property on its finding that the defendant had an interest in certain additional property, (3) in awarding counsel fees to the plaintiff, and (4) in ordering the defendant to pay the plaintiff for nonsupport during the parties' separation. We find no error.

The following facts are relevant to this appeal. The parties were married on May 29, 1971, and have two children born during the marriage, a son born March 29, 1974, and a daughter born April 9, 1981. The parties separated in January, 1987, after the plaintiff commenced the dissolution action.

The defendant is an administrator of the diagnostic imaging services at Yale-New Haven Hospital. He receives a second income from a corporation, H.O.M.E., Inc., in which he holds a 25 percent ownership interest. By August, 1987, he had signed a real estate agreement for the purchase of a house in Cheshire with his companion, Cynthia Lago, with whom he was residing at the time of trial. The plaintiff is a full-time homemaker who possessed certain nursing skills, which she had not used since her marriage to the defendant seventeen years earlier. At the time of trial, she

Page 1034

hoped to go back to work on a part-time basis, subject to her childcare needs.

Additionally, the parties owned a Florida condominium from which they received rental income. Other property interests of the parties included a $10,000 to $16,000 savings account, funds invested in a tax sheltered annuity, and funds in the defendant's pension plan.

I

The defendant first argues that the alimony and child support orders must be set aside because the trial court erroneously based these orders on the defendant's gross income rather than on his available net income. He claims that the only evidence Before the trial court dealt with gross figures, and, therefore, the trial court could only have based its award on gross amounts. We disagree.

The standard of review in domestic relations cases is well settled. This court "will not reverse a trial court's rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did." (Emphasis added.) Watson v. Watson, 20 Conn.App. 551, 554, 568 A.2d 1044 (1990); see also Sunbury v. Sunbury, 13 Conn.App. 651, 661, 538 A.2d 1082 (1988), reversed on other grounds, 210 Conn. 170, 553 A.2d 612 (1989). In determining whether the trial court's broad legal discretion is abused, " ' " 'great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.' " ' " Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985). On review of the entire record, including the transcripts and exhibits, we conclude that the defendant has not shown that the trial court's award could only have been based on the defendant's gross income.

[21 Conn.App. 202] It is clear that a trial court must base periodic alimony and child support orders on the available net income of the parties. Sunbury v. Sunbury, supra. "Gross earnings is not a criterion for awards of alimony. It is the net income, which is available to the defendant, which the court must consider." Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d 21 (1974). The trial court had Before it ample evidence from which it could [21 Conn.App. 203] have determined the defendant's net income. It not only heard the testimony of the parties on the issue of the defendant's income, but it also had Before it the defendant's financial affidavit as well as his tax returns for the years 1985 through 1987, which clearly list his gross income and total taxes. Further, the trial court heard extensive testimony on the supplemental income earned by the defendant from his interest in H.O.M.E. as well as the taxes withheld therefrom. The court also had Before it the defendant's W-2 wage and tax statements from this supplemental income indicating the amounts withheld from that income. This information, too, was evident from, and had been incorporated into, the defendant's tax returns.

With all of this information Before it, we cannot say that the trial court could only have based its award on the defendant's gross income. The trial court could have easily determined the defendant's available income and reasonably reached the result that it did. Because the trial court's award was ...


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