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Buxenbaum v. Jones

Court of Appeals of Connecticut

May 14, 2019

NINA BUXENBAUM
v.
BRIAN S. JONES

          Argued January 14, 2019

         Procedural History

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

          Logan A. Carducci, for the appellant (plaintiff).

          Douglas J. Lewis, for the appellee (defendant).

          Prescott, Bright and Norcott, Js.

          OPINION

          BRIGHT, J.

         The present appeal arises following the trial court's judgment dissolving the marriage of the plaintiff, Nina Buxenbaum, and the defendant, Brian S. Jones. On appeal, the plaintiff claims that the trial court (1) failed to consider the best interests of the children, as demonstrated by its predetermination of custody before the close of evidence, (2) failed to consider the defendant's earning capacity and, therefore, rendered logically inconsistent financial orders, and (3) lacked evidentiary support for its findings regarding the defendant's net weekly income. We affirm the judgment of the trial court.

         The record reveals the following relevant facts, which were found by the trial court or are uncontested. The parties were married in 2007, and have two minor children. After approximately eight years of marriage, the plaintiff sought a judgment dissolving the parties' marriage. In her complaint, she requested, inter alia, joint legal custody of the children, with primary physical custody vested in her. During the pendency of the dissolution, the parties shared physical and legal custody of their children, in what is called a 5-2-2-5 plan, with the plaintiff having physical custody of the children every Monday and Tuesday, the defendant having physical custody of the children every Wednesday and Thursday, and the parties alternating physical custody of the children every Friday through Sunday. On November 18, 2015, the court entered temporary orders requiring the plaintiff to pay child support to the defendant in the amount of $243 per week and alimony in the amount of $150 per week.

         On September 27, 2016, the defendant filed a notice of bankruptcy with the court. On November 21, 2016, the parties entered into a pendente lite agreement, which the court accepted, terminating alimony and child support, and agreeing, on the basis of the parties' shared physical custody of the children, that neither party would be obligated to pay support.

         On February 1, 2017, the plaintiff submitted her proposed orders, in which she requested: joint legal custody of the children, with primarily physical custody vested in her; a finding that the defendant's earning capacity is $140, 000 or more, but a deviation from the guidelines on the basis of the defendant's self-employment and ‘‘the coordination of total family support, '' and an order that the defendant pay only $1 per year in child support until he finds gainful employment; a waiver of alimony by both parties; a transfer of the defendant's interest in the marital home to the plaintiff for the sale of the home by the plaintiff and use and possession of it by the defendant until February 28, 2017; and that each party retain their own retirement accounts, bank accounts, and personal effects, including artwork.

         On February 8, 2017, the defendant submitted a set of third amended proposed orders, requesting, inter alia, joint legal and shared physical custody of the children, a waiver of alimony by both parties, child support in accordance with the guidelines, exclusive possession of the marital home, a fair distribution of the parties' retirement accounts, and that each party retain their own bank accounts and personal property, but that the defendant be entitled to one half of the plaintiff's artwork produced during the marriage.

         On February 22, 2017, following a trial, the court rendered a judgment of dissolution, in which it ordered: the parties shall share joint legal custody of the children, with no parent having the right to act unilaterally with respect to important decisions affecting the children, but, ultimately, the plaintiff has final say on treatment concerning the children's physical or emotional health; the parties shall share physical custody of the children under a 5-2-2-5 plan; neither party shall be responsible to pay child support to the other, but each party shall share the expenses of extracurricular activities, school supplies, and school trips; the plaintiff shall maintain the children on her medical and dental plans; unreimbursed medical and dental expenses shall be paid in accordance with the plan set forth by the court; and neither party shall be entitled to alimony. This appeal followed. Additional facts will be set forth as necessary.

         ‘‘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 [evidence] presented. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence 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 . . . . [T]o 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. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. . . . 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. . . . As has often been explained, the foundation for this standard isthat the trial court is ina clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .'' (Citation omitted; emphasis omitted; internal quotation marks omitted.) Kirwan v. Kirwan, 185 Conn.App. 713, 726, 197 A.3d 1000 (2018).

         ‘‘Individual financial orders in a dissolution action are part of the carefully crafted mosaic that comprises the entire asset reallocation plan. . . . Under the mosaic doctrine, financial orders should not be viewed as a collection of single disconnected occurrences, but rather as a seamless collection of interdependent elements. Consistent with that approach, our courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders even though the review process might reveal a flaw only in the alimony, property distribution or child support awards.'' (Internal quotation marks omitted.) Keusch v. Keusch, 184 Conn.App. 822, 825-26, 195 A.3d 1136 (2018).

         I

         The plaintiff first claims that the court failed to consider the best interests of the children in deciding custody, as demonstrated by its alleged predetermination of that issue before the close of evidence. The plaintiff argues that custody of the two minor children was a contested issue at trial, but that the court had prepared a child support guidelines worksheet (worksheet), dated February 10, 2017, ‘‘prior to the conclusion of the plaintiff's testimony and the close of evidence, based on a predetermination that the parties will split custody.''[1] (Emphasis in original.) The defendant argues that the court began preparation of the worksheet before the close of evidence, that the plaintiff misrepresents the date on the worksheet, which was February 15, 2017, [2] and that the court gave that worksheet to the parties to review for accuracy before rendering judgment.[3] He argues that there is no evidence that the court predetermined custody, and, further, that the evidence demonstrates that the court weighed all the evidence, including the then current shared custody arrangement that the parties had been following, and it considered the best interests of the children. We conclude that the plaintiff's claim lacks merit.

         ‘‘It is statutorily incumbent upon a court entering orders concerning custody or visitation . . . to be guided by the best interests of the child. . . . In reaching a decision as to what is in the best interests of a child, the court is vested with broad discretion and its ruling will be reversed only upon a showing that some legal principle or right has been violated or that the discretion has been abused.'' (Internal quotation marks omitted.) D'Amato v. Hart-D'Amato, 169 Conn.App. 669, 678, 152 A.3d 546 (2016). ‘‘The best interests of the child, the standard by which custody decisions are measured, does not permit . . . a predetermined weighing of evidence.'' Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). A claim that the court predetermined the outcome of a contested issue implicates the court's impartiality. See Havis-Carbone v. Carbone, 155 Conn.App. 848, 866-67, 112 A.3d 779 (2015) (court's predetermination of relocation issue implicated court's required impartiality and constituted plain error); Bank of America, N.A. v. Thomas, 151 Conn.App. 790, 802, 96 A.3d 624 (2014) (allegation that court predetermined outcome of motion ‘‘implicate[d] the court's impartiality'').

         To obtain appellate review, a claim of judicial bias or lack of impartiality typically must be raised before the trial court. See Zilkha v. Zilkha, 167 Conn.App. 480, 486, 144 A.3d 447 (2016) (‘‘[I]t is well settled that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court . . . . Absent plain error, a claim of judicial bias cannot be reviewed on appeal unless preserved in the trial court.'' [Internal quotation marks omitted.]); Jazlo-wiecki v. Cyr, 4 Conn.App. 76, 78-79, 492 A.2d 516 (1985) (plaintiff claiming he became aware of judicial bias after court rendered decision should have preserved issue in motion to open and set aside judgment). Because of the seriousness of such an allegation, however, in the interest of justice, we may invoke our authority to review ‘‘plain error'' not properly preserved in the trial court. See Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982); Practice Book § 60-5.

         In the present case, the record contains a worksheet prepared by the court, bearing the date February 15, 2017, and the time 5:06 p.m. The balance of the plaintiff's testimony in this case did not conclude until February 17, 2017.[4] The court uploaded this worksheet into the court file on February 22, 2017, the same day it issued its memorandum of decision in which it rendered judgment. The plaintiff alleges that this, alone, proves that the court predetermined custody. Because of the seriousness of the allegation, and because it is unclear to us whether the plaintiff was aware of this issue before the court entered judgment, we invoke our authority to review whether the court's action constituted plain error. We conclude that the plaintiff's claim lacks substantiation and wholly is without merit.

         The court's worksheet sets forth the parties' gross and net incomes, which are quite similar to those set forth in the plaintiff's worksheet, and it determines the appropriate amount of child support on the basis of, what it called, a ‘‘split custody'' determination. The court, however, ultimately, awarded shared legal and physical custody. See footnote 1 of this opinion. Nevertheless, the fact that the court input data into a worksheet before the close of evidence does not evince a premature determination of the issues. Certainly, the court was well within its authority to take notes, research, and begin working on a decision during the trial, knowing that additional evidence may require changes in the work it already had done. 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 that was before it. The ...


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