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Britto v. Britto

Court of Appeals of Connecticut

June 14, 2016

MARY ANN BRITTO
v.
JOHN J. BRITTO, JR.

          Argued March 8, 2016

         (Appeal from Superior Court, judicial district of Fairfield, Hon. Howard T. Owens, Jr., judge trial referee.)

          William B. Kellogg, for the appellant (defendant).

          Timothy F. Butler, with whom was Meredith F. McBride, for the appellee (plaintiff).

          DiPentima, C. J., and Alvord and Agati, Js.

          OPINION

          ALVORD, J.

         The defendant, John J. Britto, Jr., appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Mary Ann Britto. In these consolidated appeals, [1] the defendant claims that the court’s findings as to his annual income and the values assigned to certain real estate holdings were clearly erroneous in light of the evidence in the record, and that the court abused its discretion by entering financial orders applicable to the defendant that were erroneous and burdensome. We reverse the judgment of the trial court limited to its findings regarding the values it assigned to the real estate holdings because we conclude that the court improperly disregarded the parties’ stipulation as to those valuations.

         The following facts and procedural history are relevant to the defendant’s appeal. The parties were married on September 4, 1994, and two children were born of the marriage.[2] The plaintiff filed for dissolution of marriage on March 28, 2012, and a trial commenced on September 18, 2013.

         The defendant was the principal owner of A-1 Janitorial, LLC, a single-member limited liability company, and he also owned several residential rental properties in Bridgeport. Prior to the trial, a forensic accountant was hired to determine the defendant’s income from his janitorial company. The defendant did not provide the accountant or the court with tax returns from the previous year (2012) or certain other business records that could have aided in determining the defendant’s income. Ultimately, the court found that the defendant had intentionally tried to hide assets: ‘‘The court is particularly concerned with the [defendant’s] flagrant violations of the court orders relating to the transfer of assets. He fully acknowledged that several transfers of cash and real property were made deliberately subsequent to the service of process and the complaint in this dissolution action.’’[3]

         On October 8, 2013, the court rendered judgment dissolving the marriage. The court issued its memorandum of decision on December 20, 2013, and ordered the defendant to pay alimony of 30 percent of his net annual income for sixteen years from the date of the judgment. Net income was defined by the court as: ‘‘all gross receipts from [the defendant’s] self-employment, including but not limited to A-1 Janitorial, LLC, and A-1 Properties, LLC, after deductions for reasonable and actual business expenditures and state and federal taxes.’’[4] On the basis of the forensic accountant’s analysis, the court concluded that the defendant’s net income for 2012 was $230, 000. Income taxes were not deducted. The defendant did not provide the court with evidence of income tax liability, and he did not claim to owe taxes on his income.[5]

         The court also ordered the defendant to pay the plaintiff the cash equivalent of 60 percent of the value of four Bridgeport properties. The court found that the properties had been purchased by the defendant’s girlfriend and his father using marital assets provided to them by the defendant while the divorce was pending. The court identified the four properties and their assigned values as: 25 Cartright Street, Unit 1K ($106, 917); 2980 Madison Avenue, Unit G ($106, 892); 2950 Madison Avenue, Unit C ($72, 444); and 3012-7 Madison Avenue[6] ($107, 041). The defendant was also ordered to pay to the plaintiff $191, 641.95, representing the amount of marital assets that was transferred to the defendant’s father while the dissolution of marriage was pending.[7] This appeal followed.

         ‘‘The standard of review in family matters is well settled. 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 discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.’’ (Citation omitted; internal quotation marks omitted.) Mensah v. Mensah, 145 Conn.App. 644, 651–52, 75 A.3d 92 (2013).

         I

         The defendant claims on appeal that the court erred in calculating his net income for purposes of alimony. The defendant argues that the court’s finding was clearly erroneous because the court relied on evidence of his gross income and did not consider his tax liability. We disagree.

         ‘‘It is well settled that a court must base its child support and alimony orders on the available net income of the parties, not gross income. . . . Whether or not an order falls within this prescription must be analyzed on a case-by-case basis. Thus, while our decisional law in this regard consistently affirms the basic tenet that support and alimony orders must be based on net income, the proper application of this principle is context specific.’’ (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn.App. 798, 801, 930 A.2d 811 (2007).

         This court cannot pass on issues of credibility and must defer to the trier of fact’s assessment thereof. Mensah v. Mensah, supra, 145 Conn.App. 651–52. The court, as trier of fact in this case, imputed a net income of $230, 000 to the defendant.[8] A review of the record supports the court’s finding that $230, 000 was the defendant’s income net of taxes.

         The court was not provided with the defendant’s income tax filing for the previous year (2012), and the defendant testified that he had represented to the Internal Revenue Service that he had no tax liability for 2012. The testimony of the forensic accountant only covered the valuation of A-1 Janitorial, LLC, and the veracity of the company’s records. The accountant did not testify as to the defendant’s personal tax liability. On the basis of the evidence, the court could reasonably conclude that the defendant’s gross income was equivalent to his net income because he testified that he had no tax liability. The defendant has complained about a lack of evidence presented to the court to establish his income after taxes, but if evidence of tax liability existed, the defendant was in the best position to disclose that information, and he failed to do so. We conclude that there was sufficient evidence to support the court’s finding that the defendant’s income after taxes was $230, 000.

         II

         The defendant also claims that the court’s findings as to the values of the four Bridgeport properties that were acquired for the defendant by his girlfriend and his father were clearly erroneous. The court ordered the defendant to pay the plaintiff 60 percent of the value of the four properties acquired in this manner. Before the court entered its order, the parties stipulated as to the values of each of the four properties. However, the court’s judgment relied upon values that were greater than the parties’ stipulation. We conclude that the court exceeded its authority by disregarding the stipulation. The court’s findings as to valuation are severable from its financial orders. Remanding this issue to the court does not implicate the correctness of the court’s other financial orders.

         The following additional facts are relevant to the defendant’s claim. The parties stipulated as to the value of thirteen properties that were potentially marital assets.[9] This stipulation contradicted an earlier submission by the plaintiff as to the values of some of the properties. In fact, several of the properties were assigned an agreed upon lower value than the plaintiff had previously proposed.[10] The stipulation was entered as an exhibit with the court.

         In its financial orders, the court awarded the plaintiff title to the marital home, a time-share, and four residential rental properties. The defendant retained title to all other properties that were listed in his name. As for the properties in dispute, the court elected to award the plaintiff 60 percent of the value of four of the properties. The court disregarded the stipulation agreed to by the parties regarding valuation of the four properties. Instead, the court used the higher valuations that the plaintiff had originally proposed. In its memorandum of decision, the court made no finding as to its ...


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