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Barcelo v. Barcelo

Appellate Court of Connecticut

June 30, 2015

SIMONA CASARINI BARCELO
v.
DANIEL BARCELO

Argued, January 21, 2015

Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, and tried to the court, S. Richards, J.; judgment dissolving the marriage and granting certain other relief, from which the plaintiff appealed to this court.

SYLLABUS

The plaintiff appealed to this court from the financial orders entered in conjunction with the judgment of the trial court dissolving her marriage to the defendant. In entering its financial orders, the court imputed an earning capacity to the defendant that was higher than his stated salary on the basis of his regular receipt of bonus income, and, without noting the presumptive amount due under the child support guidelines, entered a supplemental child support order that required him to pay 15 percent of future bonuses to the plaintiff so long as he was ordered to pay child support. On appeal to this court, the plaintiff claimed, inter alia, that the trial court improperly entered the supplemental child support order, failed to provide notice to the parties that it would not reserve jurisdiction to enter postsecondary educational support orders, and ordered the parties to submit to arbitration to resolve any future disputes over the distribution of their personal property.

Held :

1. The trial court failed to properly consider the child support guidelines and the financial needs of the children when it awarded the plaintiff 15 percent of the defendant's future bonus income as a supplemental child support order: the supplemental order improperly failed to specify whether it referred to 15 percent of the defendant's future gross or net bonus income, as child support orders must be based on the available net income of the parties; moreover, the trial court, without justifying a deviation, permitted the plaintiff to double dip and collect child support in excess of the guidelines with respect to whatever bonus income the defendant earned above his stated salary but below his imputed earning capacity; furthermore, the open allocation of a percent of the defendant's net bonus income was improper because it was inconsistent with the schedule contained in the child support guidelines and violated the principle that a decreased percentage of the parties' combined weekly net income should be awarded as the parties' income level rises, absent a proper deviation from the presumptive amount set forth in the guidelines; additionally, without finding a proper deviation, the trial court made no specific findings regarding how its open-ended award of bonus income would be affected in the event the parties' combined net weekly income reached or exceeded $4000, including failing to make required findings with respect how the open-ended award would foster the needs of the children.

2. The trial court violated its statutory (§ 46b-56c [b]) obligation by failing to advise the parties prior to rendering the dissolution judgment that it could not enter a postsecondary educational support order at a later date if it did not enter such order, or reserve jurisdiction to enter such order, in the dissolution judgment; the record contained no indication that the trial court abided by its obligation to inform the parties in accordance with § 46b-56 (b) (1), but rather, notwithstanding the fact that both parties had requested in their respective proposed orders that the court reserve jurisdiction to enter educational support orders, the court determined in its decision on the dissolution judgment that there was insufficient evidence before it to find that it was more likely than that that the parties would have provided postsecondary educational support for their children had the family remained intact, and therefore neither entered such an order nor reserved jurisdiction to enter such an order.

3. The trial court improperly ordered the parties to submit to arbitration to resolve their dispute concerning the division of their personal property; although, pursuant to statute (§ 46b-66 [c]), parties may agree, with the court's permission, to pursue arbitration to resolve certain issues related to property division, the court here did not have the authority to order the parties to submit such issues to arbitration, as the record did not indicate a voluntary arbitration agreement was executed by the parties.

4. This court concluded that the proper remedy for the trial court's errors with respect to its financial orders was to remand the matter to that court for reconsideration of all of its financial orders; although not every improper order necessarily merits reconsideration of all of a trial court's financial orders, the entry of the supplemental child support order in this case inevitably impacted all of the other financial orders, including the alimony award, and in view of any educational support order that the court may enter on remand, it must reconsider all of its financial orders, including the property distribution orders.

Thomas M. Shanley, 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.

[158 Conn.App. 203] 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 [158 Conn.App. 204] 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 orders[1] 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 [158 Conn.App. 205] 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 [158 Conn.App. 206] 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 ...


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