Aley v. Aley (dissenting)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** ALEY v. ALEY DISSENT MIHALAKOS, J., dissenting in part. My dissent, as reported in Aley v. Aley, 97 Conn. App. 850, 908 A.2d 8 (2006) (Mihalakos, J., dissenting in part) (Aley I), concerned two matters, one of which the majority has adopted in this decision, relative to the valuation of the marital home. I affirm the second portion of my prior dissent, concerning the trial court s determination of the net and gross income of the defendant, William Aley. See id., 857. The majority in Aley I remanded both of these matters for articulation by the court. Id., 855. After remand, the majority concluded that there was sufficient evidence for the court to determine the value of the marital home. The only issue remaining, therefore, was whether there was sufficient evidence to determine the net and gross income of the defendant. [I]t is the trier s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness testimony. (Internal quotation marks omitted.) Lowe v. Shelton, 83 Conn. App. 750, 765, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). In this case, although the defendant submitted a financial affidavit, which was several months old, he failed to show up for the dissolution hearing without giving notice to the court or requesting a continuance, and he never submitted a child support guidelines worksheet as required. The plaintiff, Susan Aley, however, did submit a guidelines worksheet. The majority has recognized that the guidelines worksheet creates a legal presumption as to the amount of child support payments. Because the defendant did not attend the hearing, there was no testimony from him with regard to the representations in his financial affidavit or the representations in the plaintiff s guidelines worksheet. This court has concluded that a party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines . . . . (Internal quotation marks omitted.) Tracey v. Tracey, 97 Conn. App. 122, 129, 902 A.2d 729 (2006). In the present case, the plaintiff submitted a guidelines worksheet as required. The defendant, having failed to submit a guidelines worksheet, now cannot argue that the court should not have relied on the plaintiff s guidelines worksheet as an evidentiary basis for its child support orders. The majority concludes that because the pay stub, on which the plaintiff s guidelines worksheet was based, was not in evidence, a remand is necessary with regard to the court s child support orders. The court, however, was free to accept or reject the amount of child support called for in the plaintiff s guidelines worksheet. Additionally, the court was permitted to use the defendant s financial affidavit as an evidentiary basis for the plaintiff s guidelines worksheet, and the record indicates that the court in fact did rely, in part, on the defendant s affidavit when fashioning its child support orders. In its articulation, the court stated: Based on the testimony of the plaintiff, the representations made by counsel, the financial affidavits in the file, the state of Connecticut guideline worksheet provided and considering the relevant statutory provisions of chapter 815j of the Connecticut General Statutes, the court entered orders . . . . (Emphasis added.) Finally, the majority notes that the difference between the income listed in the defendant s financial affidavit and the plaintiff s guidelines worksheet was $657.16 and $676, respectively, or less than 3 percent. If the defendant had submitted an updated financial affidavit with regard to his income, he would have had an opportunity to dispute this discrepancy. Having failed to take advantage of this opportunity, the defendant cannot claim now that the court s child support orders had no evidentiary basis. For the foregoing reasons, I would affirm the judgment of the trial court.
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