author: HARPER, J.

text:
    MBNA AMERICA BANK, N.A. v. THOMAS C. BAILEY
    (AC 27157)
    Flynn, C. J., and Harper and Rogers, Js.

      Argued September 25, 2006
    officially released November 20, 2007

      William T. Barrante, with whom, on the brief, was Patsy M. Renzullo, for the appellant (defendant).

      Jeanine M. Dumont, for the appellee (plaintiff).
   Opinion

HARPER, J.

The defendant, Thomas C. Bailey, appeals from the judgment of the trial court granting an application to confirm an arbitration award in favor of the plaintiff, MBNA America Bank, N.A. The defendant claims that the court (1) improperly denied his motion to dismiss the application and (2) deprived him of his right to a jury trial. We affirm the judgment of the trial court.

The parties do not dispute that the defendant applied for and was issued a credit card by the plaintiff bank. Thereafter, despite the plaintiffs demands, the defendant failed to make payments on his account, which had a balance in excess of $8500. The plaintiff submitted the dispute to an arbitrator. On August 6, 2004, the arbitrator found, inter alia, that “on or before January 15, 2004, the parties entered into an agreement providing that this matter shall be resolved through binding arbitration.” The arbitrator further found that the plaintiff had filed a claim before him and served the claim on the defendant, and that the parties had had an opportunity to present evidence in accordance with the arbitrator’s code of procedure. The arbitrator awarded the plaintiff $10,248.25. At no time did the defendant appear before the arbitrator.

On November 9, 2004, the plaintiff applied to the Superior Court for an order confirming the arbitration award in accordance with General Statutes § 52-417. The plaintiff attached a copy of the arbitrator’s award to its application and represented that the defendant had been duly notified of the award. The plaintiff also represented that the parties had entered into “a written agreement for arbitration” and attached what it purported to be a “copy” of that agreement to its application.

On January 7, 2005, the defendant filed a motion to dismiss the application to confirm on the ground that the court lacked subject matter jurisdiction. The defendant argued that “there was no valid and enforceable arbitration proceeding in that there was no agreement to arbitrate executed by the defendant within the meaning of [General Statutes § 52-408].” The defendant also maintained that the “unsigned and undated” agreement attached to the plaintiffs application, which included a binding arbitration provision, was not binding on him and that the plaintiff had failed to demonstrate that he was bound by any agreement to arbitrate. The defendant represented that he “never submitted to the arbitration that the plaintiff undertook in this case” and “never agreed that [the arbitrator before whom the plaintiff appeared] or any other arbitrator had jurisdiction to enter any award for the plaintiff.”

The plaintiff objected to the motion to dismiss, arguing as a matter of law that a valid and enforceable arbitration agreement need only be evidenced by a written agreement, not a written agreement signed by the parties. The plaintiff represented that, under the terms of the original written agreement between the parties, it reserved the right to amend the agreement in a specified manner. The plaintiff further represented that it subsequently exercised this right by providing the defendant with written notice that it was amending the agreement to include the arbitration provision at issue. The plaintiff also represented that the defendant did not avail himself of an “opt-out clause” in the written amendment to the parties’ agreement. According to the plaintiff, the defendant had a full and fair opportunity to reject the arbitration provision by so notifying the plaintiff, in writing and within a certain period of time, as provided in that clause. The plaintiff argued that, by continuing to use his credit card following his receipt of the plaintiffs notice that an arbitration provision was being added to the parties’ agreement, the defendant became, as a matter of law, “bound to the arbitration agreement by [his] assent” and that such provision was integrated into the agreement between the parties. The plaintiff also asserted that the defendant had failed to raise the issue of arbitrability before the arbitrator at the time of the arbitration proceeding.

On May 25, 2005, the court issued a memorandum of decision denying the defendant’s motion to dismiss. The court rejected the defendant’s argument that the arbitration provision was not enforceable because he had not signed it. The court, implicitly crediting the plaintiffs version of events, concluded that the arbitration provision was an integral part of the parties’ agreement. The court concluded that the defendant had assented to the terms of that agreement and had accepted the benefits of the agreement by his continued use of his credit card after the plaintiff had amended the parties’ original agreement. Despite having reached the merits of the defendant’s claim, the court nevertheless “noted” that the defendant had not properly raised the issue of whether an agreement to arbitrate existed. The court stated that the defendant “did not move to compel judicial determination of the validity of the arbitration agreement prior to the arbitration itself, he did not appear at the arbitration [proceedings] to contest the arbitrability of the dispute and, once receiving notice of the arbitration award, he did not file a motion to vacate the award [as required by General Statutes § 52-420 (b)].” On November 3, 2005, the court confirmed the award, awarding the plaintiff $10,248.25 and costs taxed at $279.75. The court ordered the defendant to make nominal payments of $35 weekly to the plaintiff. This appeal followed.

I

The defendant claims that the court improperly denied his motion to dismiss. The plaintiff, however, asserts as a preliminary issue that the court improperly reached the merits of the defendant’s motion to dismiss. According to the plaintiff, the defendant did not preserve his right to raise before the court the issue of whether an agreement to arbitrate existed. The plaintiff argues that the defendant’s inaction, in that he did not raise any objection to the arbitration proceedings after he received notice that such proceedings were underway or seek a judicial determination of the issue of whether an agreement to arbitrate existed or move to vacate or otherwise challenge the arbitrator’s award prior to the filing of the application to confirm such award, precluded him from raising the issue before the court. Whether, under the unique circumstances of this case, the court properly reviewed the defendant’s claim that an agreement to arbitrate did not exist is a question of law over which our review is de novo.

A recent decision from our Supreme Court, MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 926 A.2d 1035 (2007), is on point and sets forth the relevant principles that will guide our analysis. “We have long recognized two procedural routes by which a party may preserve the issue of the arbitrability of a particular dispute for judicial determination. . . . A party initially may refuse to submit to an arbitration and instead compel a judicial determination of the issue of arbitrability. . . . Alternatively, the issue of arbitrability may properly be left to an arbitrator or arbitration panel for a determination, along with the merits of the underlying dispute. ... In the latter situation, a court may properly entertain a challenge to an award alleging disregard of the limits in the parties’ agreement with respect to arbitration. ... As we previously have indicated, a claim that a dispute is not subject to arbitration is an attack on the power of the arbitrator to decide the underlying dispute. . . . Such a claim may be raised through a collateral judicial action prior to the arbitration, through an application or motion to vacate the arbitration award or through an objection to the confirmation of the arbitration award.” (Citations omitted; internal quotation marks omitted.) Id., 392-93.

General Statutes § 52-418 (a) provides that upon the application of a party to an arbitration, a court “shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” General Statutes § 52-420 (b) provides that no party may bring a motion to vacate an award “after thirty days from the notice of the award to the party to the arbitration who makes the motion.” “[Although a party retains the right to a judicial determination of arbitrability until there is a judgment confirming, vacating, modifying or correcting an award, a party seeking to vacate an award on the basis of one or more of the grounds enumerated in § 52-418 must comply with the requirements of § 52-420 (b).” MBNA America Bank, N.A. v. Boata, supra, 283 Conn. 393.

Our Supreme Court has clarified that the issue of whether an agreement to arbitrate exists, as opposed to whether an arbitrator has disregarded the limits of an arbitration agreement, is not one of the grounds enumerated in § 52-418 and, thus, is not subject to the timeliness provision codified in § 52-420 (b). Id., 395. Accordingly, to the extent that the plaintiff argues that the operation of § 52-420 (b) precluded the defendant from raising the issue of arbitrability at the time and in the manner that he did, such rationale is without merit.

At this point in our analysis, some recitation of the relevant facts and procedural histoiy in Boata is warranted. In that case, the plaintiff bank issued a credit card to the defendant, which he used pursuant to the terms of a written cardholder agreement. Id., 383. The plaintiff claimed that, by providing the defendant with written notice of the amendment, it subsequently amended the cardholder agreement to provide that “any and all claims arising under the cardholder agreement would be submitted to binding arbitration.” Id. The plaintiff claimed that, although it was his right, the defendant did not provide any notice to it that he wanted to opt out of this arbitration provision. Id. The defendant contended that he never received the written notice of the amendment. Id., 384.

The plaintiff alleged that the defendant later failed to make payments on an account balance of approximately $45,000. Id. In accordance with the arbitration provision, the plaintiff commenced arbitration proceedings to recover the moneys owed to it by the defendant. Id. “The defendant, representing himself pro se, responded to the plaintiff by claiming, inter alia, that he was never informed that there [was] an [arbitration [c]lause, and that he never agreed under any contractual relationship to arbitrate his disputes with [the plaintiff] . . . [and] is not bound by the [arbitration] [agreement presented by the [plaintiff] .... Accordingly, the defendant requested that the arbitrator dismiss the plaintiffs claim.” (Internal quotation marks omitted.) Id. The arbitrator issued an award in the plaintiffs favor but “did not address the defendant’s claim that he had not agreed to binding arbitration or his related request for dismissal of the plaintiffs claim.” Id. After the plaintiff filed an application to confirm the arbitrator’s award, the defendant filed an objection on the ground that “the parties had not entered into a written agreement to arbitrate.” Id., 385. The trial court viewed the objection as a motion to vacate brought pursuant to § 52-418 and concluded that, because it was not filed within the thirty day time limit codified in § 52-420 (b), it could not consider it. Id. Thereafter, the court rendered judgment confirming the award. Id. This court reversed the trial court’s judgment and remanded the case for a determination of arbitrability. MBNA America Bank, N.A. v. Boata, 94 Conn. App. 559, 893 A.2d 479 (2006), aff'd, 283 Conn. 381, 926 A.2d 1035 (2007).

In Boata, our Supreme Court held that “a challenge to the existence of an arbitration agreement is appropriate at any stage before the court renders judgment confirming the award if the issue was not waived during the arbitration proceedings.” (Emphasis added.) MBNA America Bank, N.A. v. Boata, supra, 283 Conn. 396. The court also held: “[Bjecause a trial court cannot confirm an arbitration award unless the parties expressly have agreed to arbitrate the matter, it follows that a defendant must be allowed to object to the confirmation of that award if he properly has preserved a claim as to the existence of an arbitration agreement.” (Emphasis added.) Id., 395. Thus, a party may object to an application to confirm an arbitration award, by challenging whether an arbitration agreement exists, only if such party properly has preserved such issue and has not waived his right to raise such issue before the court.

The defendant’s course of conduct in the present case is not in dispute. The defendant did not participate, in any way, in the arbitration proceedings. The defendant did not challenge the arbitrability of the dispute before the arbitrator, either before or after the arbitrator issued his award. It was not until the plaintiff filed in the Superior Court an application to confirm the award that the defendant challenged whether an agreement to arbitrate existed.

There is no basis on which to conclude that the defendant, by his conduct during the arbitration proceedings, waived his right to challenge the arbitrability of the dispute in the Superior Court. “Waiver is the intentional relinquishment or abandonment of a known right or privilege. . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed. . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so. . . . The waiver doctrine applies to arbitration because [w]e have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” (Citations omitted; internal quotation marks omitted.) C. R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007). Here, the defendant did not make any representations before the arbitrator concerning the arbitrability of the dispute. Also, without challenging the arbitrability of the dispute before the arbitrator, he did not implicitly convey that the dispute was arbitrable, such as by presenting evidence or otherwise arguing the merits of his case before the arbitrator. Instead, he did not participate in the arbitration proceedings in any way, and his inaction under the circumstances present cannot reasonably be interpreted as a waiver of the issue he raised before the court.

We next consider whether the defendant preserved his claim that the dispute was not arbitrable. Generally, to preserve an issue for review, a party must, at an appropriate time, object or otherwise assert such issue. A party cannot preserve a claim through inaction but, instead, must engage in affirmative conduct at an appropriate time. In Boata, our Supreme Court deemed it integral to its holding that the defendant had “preserved the issue of whether there was an agreement to arbitrate during the arbitration proceedings . . . .” MBNA America Bank, N.A. v. Boata, supra, 283 Conn. 396. As the court noted, the defendant in Boata requested that the arbitrator dismiss the plaintiffs claim. Id., 384. We interpret Boata to hold that a party must preserve its arbitrability claim by asserting such claim during the underlying arbitration proceedings. In the present context, the defendant could have preserved his claim that an agreement to arbitrate did not exist by, inter alia, compelling a judicial determination of the issue of arbitrability or raising the issue for determination by the arbitrator. The defendant, by his inaction, did not preserve his right to challenge the arbitrability of the plaintiffs claim. The court correctly recognized that the defendant had not raised the claim properly and should have declined to afford it review. “[An appellate court] can sustain a right decision although it may have been placed on a wrong ground.” (Internal quotation marks omitted.) Blasko v. Commissioner of Revenue Services, 98 Conn. App. 439, 441 n.3, 910 A.2d 219 (2006). Because we conclude that the court should not have reached the merits of the defendant’s motion to dismiss, we affirm its denial of that motion.

II

The defendant next claims that “the trial court’s judgment” deprived him of his “fundamental constitutional right to a jury trial.” The defendant’s analysis may be summed up by his arguments that he did not voluntarily or knowingly waive his right to have this dispute heard by a jury, that “[t]he waiver was forced on him” and that he was “forced into arbitration as the only remedy for a breach of contract . . . .”

To the extent that this claim is distinguishable from the defendant’s claim that an agreement to arbitrate did not exist, which was not properly before the court, it is unpreserved. Our careful review of the record reflects that the defendant did not distinctly raise this claim before the court, and, consequently, the court did not address it. Generally, claims neither addressed nor decided by the trial court are not properly before an appellate tribunal. See Rivera v. Double A Transportation, Inc., 248 Conn. 21, 33, 727 A.2d 204 (1999); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996). Accordingly, we decline to review this claim. See Practice Book § 60-5 (“court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial”).

The judgment is affirmed.

In this opinion the other judges concurred.

       An affidavit submitted by the defendant was attached to his motion to dismiss, in which he averred that he did not “execute” the written agreement attached to the plaintiffs application to confirm and that he “never submitted” to the arbitration proceedings at issue.

       The defendant does not request any type of extraordinary review of this unpreserved claim.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    MICHAEL M. TAYLOR v. MORRIS SILVERSTEIN
    (AC 27611)
    Flynn, C. J., and Gruendel and Berdon, Js.

      Argued September 5
    officially released November 20, 2007

      Morris Silverstein, pro se, the appellant (defendant).

      Samuel L. Schrager, for the appellee (substitute plaintiff Michael M. Taylor, trustee).
   Opinion

FLYNN, C. J.

The defendant, Morris Silverstein, appeals from the judgment of the trial court quieting title to land located on Cider Mill Road in Bolton in favor of the substitute plaintiff, Michael M. Taylor, trustee (plaintiff), and finding against the defendant on his counterclaim. On appeal, the defendant claims that the court improperly (1) concluded that he failed to establish the existence of two easements over the plaintiffs property by either (a) deed or (b) prescription and (2) stated that counts three and four of his counterclaim had been stricken previously. We affirm the judgment of the trial court.

The following facts as found by the court are relevant to our resolution of the issues on appeal. The plaintiff owns a parcel of land on the easterly side of Cider Mill Road, which consists of approximately fifty-six acres and which abuts land owned by the defendant. As stated in the court’s memorandum of decision: “The plaintiff acquired title to his parcel as a result of a partition sale order by the Superior Court .... After the committee sale was ratified by the Superior Court in August, 2000, the defendant took an appeal to the Appellate Court [see Mitchell v. Silverstein, 67 Conn. App. 58, 787 A.2d 20 (2001), cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002)], which finally was resolved on March 1, 2004, after his petition for certification to our Supreme Court was denied, as was his motion for reconsideration.

“During the appellate stages, the defendant filed an ‘Affidavit and Notice of Continued Use’ in the Bolton town clerk’s office . . . claiming two rights-of-way from Cider Mill Road to [the defendant’s] 5.2 acre parcel [which was] referred to by the defendant as ‘Fish’s five acres.’ The defendant contend[ed] that he [had] two rights-of-way over the plaintiffs property by either or all of the following: (a) By grant or reservation of deed; (b) By necessity [or] (c) By prescription. The plaintiff [sought] to quiet title [of] the property to himself, claiming that the defendant [could not] establish entitlement to the rights of way under any theory.

“Testimony was proffered by two witnesses. The plaintiff called Attorney Richard Soranno, who was qualified as an expert in land titles, title searches and realty law. Attorney Soranno [had] some thirty-two years of experience in the field and [had] done approximately 5000 title searches for individuals, banks and insurance companies. The defendant was the sole defense witness.”

The court opined that “it [was] clear that, unless the defendant [could] prove he [had] rights-of-way as he claim[ed], the plaintiff [was] entitled to have title vested in his favor as a result of the approved partition sale and committee deed.” The court went on to conclude that the defendant had not established the existence of the alleged rights-of-way under any theory presented and, therefore, rendered judgment quieting title in favor of the plaintiff. The court also “denied” the defendant’s counterclaim, which had sought a “judicial determination recognizing and honoring his rights-of-way . . . .” This appeal followed.

I

The defendant first claims that the court improperly concluded that he did not establish the existence of two easements over the plaintiffs property either by deed or by prescription. We will consider each of these claims in turn.

A

The defendant claims that in reviewing the deeds in both the plaintiffs and the defendant’s chains of title, “it is readily apparent that rights-of-way, in the form of cart paths, were in existence upon the land and being used as of the dates of those instruments [which went back to 1883].” The plaintiff argues that, even if rights-of-way, in the form of cart paths “may” have existed, the defendant failed to establish the actual existence of “rights-of-way over the plaintiffs property that were reserved in deeds [he] submitted, the location of the alleged rights-of-way and, fatally, that [his] land was the dominant estate benefited by alleged rights-of-way . . . .” We agree with the plaintiff.

Initially, we set forth our standard of review. “The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. ... On appeal the scope of review of such a question is plenary . . . .” (Citation omitted.) Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992). “If, after a plenary review, an appellate court concludes that deeded easements exist, their nature and extent usually must be decided by a trial court, and ordinarily a remand is required for a finding of relevant facts to establish their boundaries.” Mandes v. Godiksen, 57 Conn. App. 79, 83, 747 A.2d 47, cert. denied, 253 Conn. 915, 754 A.2d 164 (2000). The question to be determined on appeal is whether there was an intent as expressed in the plaintiffs and the defendant’s chains of title to establish the easements. We do this by an examination of the deeds, the map referenced in the plaintiffs deed and the recorded instruments that appear in the chain of title to the particular parcel of land. See id.

At trial, the defendant submitted a warranty deed recorded on January 24, 1911, at volume 18, page 96, of the Bolton land records, from William F. Risley to Otto E. Mannel, which is in the plaintiffs chain of title. The deed grants Mannel a certain tract of land in Bolton, which contains twelve acres, and is “bounded North by land of William F. Risley and by land of Mrs. L. J. Robinson,—and by land of William Fish,—East by land of Mrs. L. J. Robinson,—and by land of John L. Risley . . . and by land of Gary D. Carpentier and wife,—and by land of Wm. Fish,—West by land of William Fish— and by Otto E. Mannel’s house lot—and by a highway known as ‘Bolton Ave.’ ” The deed goes on to state that “[t]he right is reserved, to those who have a right, to cross and recross in the usual traveled cart paths” and to reserve to William F. Risley “the right, until April 1, 1913, to enter upon—cut and cart away certain wood and timber” from land that is “situated on the North— East—and South of Otto E. Mannel’s house lot.” The deed also provides: “And furthermore, I, the said grantor do by these presents bind myself and my heirs forever to Warrant and Defend the above granted and bargained premises to him the said grantee his heirs and assigns against all claims and demands whatsoever. Except as is above stated.”

The defendant also submitted a deed recorded on April 12, 1911, at volume 18, page 97, of the Bolton land records, from William F. Risley to Mrs. Charlotte Robertson. This deed conveyed a “certain tract of woodland—containing two acres . . . situated in the town of Bolton . . . starting at a bound at the northwest comer of land I have recently sold to Otto E. Mannel— thence running N. 71V2 [degrees], E. 5 [rods] to Mrs. Robertson’s southwest bound (by a stump) of land she already owns, bounding this tract on the East—thence running N. 1 [degree], W. 32 [rods] on the East line of her above mentioned land, to a bound on the south line of land of Lewis Fish. Thence turn S. 75 [degrees], W. 15 [rods]—11 [links] along Lewis Fish’s south line to a bound on the East line of a highway. Thence turn southerly on the east line of said highway to the first mentioned bound. There is a cart path crossing the southwest comer of this tract of land—to those who have a right—is reserved the right to use this cart path.” “And furthermore, I, the said grantor do by these presents bind myself and my heirs forever to Warrant and Defend the above granted and bargained premises to her the said grantee her heirs and assigns against all claims and demands whatsoever. Except as is above stated.”

Although these early deeds in the plaintiffs chain of title, which were submitted by the defendant, state that a right-of-way is “reserved” for those who “may” already possess such a right, neither of these deeds actually conveys or grants a right-of-way to the defendant’s predecessor in title, nor do they make any reference as to who had such a right, with the exception of the limited right granted to William F. Risley. Additionally, any mention of the cart path or other right-of-way is absent from all of the later documents in the plaintiffs chain of title in the record.

The documents submitted by the defendant to demonstrate his chain of title consist of a warranty deed recorded on December 4, 1906, found at volume 18, page 15, of the Bolton land records, from Albert F. Wilson to William L. Fish. The deed sets forth an area containing five acres lying in part to the north of land owned by Risley. The deed also provides that the property is “free from all [enjcumbrances whatsoever except rights of way through said land, if any exist.”

The next deed in the defendant’s chain of title, recorded on August 1, 1950, at volume 28, page 6, of the Bolton land records, is from Albert E. Fish to Fred G. Boss. That deed states, in part, that the land is bordered “Westerly by land of . . . Silverstein and land formerly of one Robinson, but now Shearer, in part by each, together with rights of way for passage to and from Lake Street over land of said Silverstein and said Shearer and being the same land acquired by me from the Estate of my father William L. Fish.” Additionally, the deed also contains a provision that the property is “free from all encumbrances whatsoever, except rights of way through said land if any exist.”

Although the defendant argues that the combination of these documents clearly demonstrates the existence of his rights-of-way, we agree with the plaintiff and the court that the documents do not establish the actual existence of any rights-of-way, their location or in whose favor they might lie. Early deeds in the plaintiffs chain of title from 1911 and 1913 set forth the retention of the right to cross the property to whomever might possess such right, without establishing, granting or actually reserving any such right. All subsequent deeds in the plaintiffs chain of title, from 1914 to the time of trial set forth no recognition, grant or reservation of a right-of-way.

We are presented with a situation in which the August 1, 1950 deed in the defendant’s chain of title states there are “rights of way for passage” over the former Silverstein and Shearer properties, but there is nothing in the plaintiffs chain of title that grants such rights-of-way to the defendant’s predecessors in title. Although the defendant’s 1950 deed states that there are rights-of-way over the Silverstein and Shearer land, the defendant’s dominant estate cannot grant rights-of-way over the plaintiffs servient estate, and we find nothing in the plaintiffs chain of title itself that granted or reserved to the defendant’s predecessor in title rights-of-way over of the plaintiffs land.

The defendant also argues in his reply brief that if the language in the plaintiffs deeds are considered to be ambiguous because they do not specify to whom the rights-of-way were granted, then the court should have construed such ambiguity in favor of the grantee. Although this may be an accurate statement of the law; see Lago v. Guerrette, 219 Conn. 262, 268, 592 A.2d 939 (1991) (“[a]ny ambiguity in the instrument creating an easement, in a case of reasonable doubt, will be construed in favor of the grantee” [internal quotation marks omitted]); in this case the defendant first had to prove to the court that a deed actually granted a right-of-way and that he, through his predecessor in title, in fact, succeeded to that interest before he could gain the benefit of such construction. This, he did not do. Accordingly, we agree with the court that the defendant did not provide sufficient proof that any of the deeds in the plaintiffs chain of title granted rights-of-way or that he was the beneficiary of deeded rights-of-way over the plaintiffs property.

B

The defendant next claims that if the deeds do not prove that he has rights-of-way over the plaintiffs property, then he established those rights by prescription. In response to the plaintiffs argument that the defendant clearly demonstrated that the plaintiffs predecessor had acquiesced to the use of these cart paths, the defendant also argues that “[w]hile [the plaintiffs predecessor] allowed Arthur Fish to use the cart paths, she did not give him permission to do so.” We are not persuaded.

We review the court’s finding that the defendant failed to establish the existence of a prescriptive easement under the clearly erroneous standard of review. Smith v. Muellner, 283 Conn. 510, 534, 932 A.2d 382 (2007). “When the factual basis of atrial court’s decision is challenged, [an appellate court’s] function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. ... 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Id., 533.

“[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. . . . The standard of proof that is required is a fair preponderance of the evidence. ... To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised. . . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use. . . . Use by express or implied permission or license cannot ripen into an easement by prescription.” (Citations omitted; internal quotation marks omitted.) Boccanfuso v. Green, 91 Conn. App. 296, 309, 880 A.2d 889 (2005).

In the defendant’s answer to the plaintiffs complaint, he states that he “does not know if his two [rights-of-way] are aptly described as being ‘adverse’ to [the] plaintiffs title to land . ...” In his affidavit, the defendant also attested, in part: “As a youngster growing up on the property, back just prior to and dining the World War II era, the undersigned many times witnessed Albert [Fish’s] son, Arthur, cutting and hauling wood from the said parcel of land. In order to get to the property, Arthur cleared the [rights-of-way] by cutting roadways through the trees that had fallen across the [rights-of-way] during the 1938 hurricane. The wood Arthur thereby created in clearing his way was left along the side of the [rights-of-way] for . . . use [by the plaintiffs predecessor in title,] so consequently, she did not object to Arthur’s doings.” Finally, the defendant testified at trial that the plaintiffs predecessor in title knew that the Fishes were cutting down trees along the cart paths, but because they were leaving wood that she used, she did not object.

On the basis of this and other evidence, the court found that the defendant had failed to establish that the use of the cart paths was adverse, under a claim of right, or that the use was open and uninterrupted for more than fifteen years. Although the defendant had argued that the continuous use of these paths and the 1950 deed in his chain of title gave constructive notice of a prescriptive right to use the rights-of-way, the court found that the use by the Fish family was an approved use.

The defendant, on appeal, does not explain how the court’s findings are clearly erroneous. Rather, he merely disagrees with the court’s findings and its weighing of the evidence. The defendant admitted in his answer that “adverse” probably was not a proper term to define the Fishes’ use of the cart paths, and in his affidavit and in his trial testimony, he admitted that the plaintiff s predecessor in title knew that the Fishes were using the paths and that she did not object to their clearing wood from them because she used the wood that was left behind. As was found by the trial court, this evidence did not demonstrate a use that was adverse to the owner. Accordingly, we conclude that the findings of the court were not clearly erroneous.

II

The defendant next claims that the court improperly stated that counts three and four of his counterclaim had been stricken previously, and he argues that these counts remain viable, requiring that we remand the case for consideration of these outstanding counterclaims. We disagree.

“[T]he interpretation of pleadings is always a question [of law] for the court .... The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint [or counterclaim] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded.” (Internal quotation marks omitted.) Bailey v. West Hartford, 100 Conn. App. 805, 809, 921 A.2d 611 (2007). “Although . . . our jurisprudence requires us to interpret pleadings broadly, we [also] must constme them reasonably to contain all that they mean but not in such a way so as to strain the bounds of rational comprehension.” (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 629, 910 A.2d 209 (2006).

The defendant’s initial answer to the plaintiffs complaint contained a counterclaim that alleged in its entirety: “Defendant seeks cost of suit (including attorney fees), expenses, damages, interest, a reasonable fee for defendant’s time, and any and all other amounts the court deems appropriate, as is finally determined, that are or would be due defendant as a result of defendant’s involvement in this harassing and totally unnecessary law suit.”

In response to this counterclaim, the plaintiff filed a motion to strike on the ground that the counterclaim failed to state a claim on which relief could be granted, arguing that it sounded like the defendant was attempting to plead a cause of action for vexatious litigation but that such a claim was not ripe at this stage. The court granted the motion to strike, without written opinion, on February 29, 2005.

The defendant then filed a new pleading entitled “repleading of counterclaim.” The repleaded counterclaim stated in its entirety:

“In accordance with the provisions of Practice Book [§] 10-44, defendant herein repleads his counterclaim.

“First: Defendant seeks a judicial determination recognizing and honoring his [rights-of-way] over plaintiffs subject properties.

“Second: Plaintiffs lawsuit is a frivolous lawsuit. Defendant seeks payment of such statutory amounts that are allowed as damages for bringing such a lawsuit.

“Third: Defendant seeks reimbursement for his expenses involved in this entire mater, including attorney fees, witness fees, expert and specialist fees, interest, and any and all other amounts the court deems appropriate.

“Fourth: Defendant also seeks a reasonable fee for his own time involved in this entire matter, and such other relief that the court deems proper.”

On November 3, 2005, the plaintiff filed a request to revise, requesting that the second paragraph of the defendant’s counterclaim be revised by removing the paragraph in its entirety. The plaintiff stated that the ground for this requested revision was twofold—first, the second paragraph virtually was identical to the counterclaim that previously had been stricken, and, second, the defendant had pleaded two separate causes of action in one counterclaim, the first being a request for a declaratory judgment and the second being a frivolous lawsuit claim. In response, the defendant filed an objection, which the court overruled, and the second paragraph of the counterclaim thereby was eliminated.

In its memorandum of decision after trial, the court, in part, denied the defendant’s request for a declaratory judgment that honored and recognized his rights-of-way, and it stated that “the second, third and fourth counts [of the counterclaim] were previously stricken . . . .” The defendant now claims that the court was incorrect in its statement and that “counts” three and four remain outstanding. Although the court’s statement technically may have been incorrect, we do not agree that those remaining paragraphs constitute two additional causes of action.

Reviewing the defendant’s “repleading of counterclaim” both broadly and realistically, it is apparent that this counterclaim consisted of four separate paragraphs, which contained two causes of action, a request for a declaratory judgment and a vexatious litigation claim, followed by two paragraphs outlining his prayers for relief. After the court overruled the defendant’s objection to the plaintiffs request to revise, thereby eliminating the second paragraph of the counterclaim, the counterclaim consisted of a request for a declaratory judgment recognizing and honoring his rights-of-way, followed by two ancillary paragraphs that set forth his prayers for relief. When the court ruled against the defendant on the remaining counterclaim, no further ruling was necessary on these ancillary paragraphs, as they were not separate causes of action. When the causes of action to which they were ancillary fell, they fell too.

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, the defendant also had claimed, as an alternative, that the easements were acquired by necessity. He has not briefed this alternative claim on appeal, and, therefore, we do not address it. We do note, however, that in addressing this claim, the court found that the plaintiff could access his 5.2 acre parcel via other abutting land that he owned.

       The defendant also argues that the court “mistakenly attributed deeds in the plaintiffs chain of title ... as deeds in the defendant’s chain of title.” Because we conduct a plenary review of the record as it pertains to the deeds, these alleged factual discrepancies are not critical here.

       In 14 R. Powell, Eeal Property (2007) § 81A.05 [3] [h] [iv], p. 81A-106, it is explained: “The term ‘reservation’ would be appropriate . . . [where] the grantor is creating the easement in himself or herself. However, for the sake of efficiency, or out of ignorance of the conceptual foundation of a ‘reservation,’ the grantor may attempt to both convey the land to the grantee and ‘reserve’ an easement in favor of another person, all in the same deed. Under traditional conveyancing doctrine, such aprocedure is impermissible. It notes the fact that the grantor has attempted to reserve an easement in favor of someone other than the grantor himself, and points to the incongruity of that process. The use of the term ‘reservation’ means that the grantor has kept the interest for himself or herself.”
      More recent decisions, however, “show a marked tendency toward the rejection of the traditional doctrine. In these cases, the fact that the conveyance grants or reserves an interest in a third person does not automatically invalidate the interest. If the grantor’s intent is clear, the interest is properly conveyed to the third person. Some state statutes also require such an interpretation. However, there remain significant decisions which reject this approach and would continue to endorse the rule that a deed may not reserve an interest in favor of a person other than the grantor.” Id., pp. 81A-106-107.

       Although the defendant did file a motion for articulation in which he requested that the court correct parts of its memorandum of decision, he made no request for clarification or correction regarding this statement.


author: BISHOP, J.

text:
    NANCY WEINSTEIN v. LUKE A. WEINSTEIN
    (AC 24855)
    Flynn, C. J., and Bishop and McLachlan, Js.

      Argued September 5
    officially released November 20, 2007

      Luke A. Weinstein, pro se, the appellant (defendant).

      Lori Welch-Rubin, for the appellee (plaintiff).
   Opinion

BISHOP, J.

This appeal returns to this court on remand from our Supreme Court; Weinstein v. Weinstein, 280 Conn. 764, 911 A.2d 1077 (2007); for resolution of the remaining claims of the defendant, Luke A. Weinstein, that the trial court improperly modified the child support order in that it (1) imputed an unsubstantiated earning capacity to him, (2) failed to deviate from the child support guidelines to account for the parties’ joint physical custody arrangement and (3) awarded child support to the plaintiff, Nancy Weinstein, that was, in reality, disguised alimony. We reverse the judgment of the trial court.

The following facts and procedural history, set forth by the Supreme Court, are relevant to the resolution of the issues before us. “The court, Higgins, J., dissolved the parties’ marriage on May 12, 1998. The judgment included an agreement that the parties would share joint physical custody of their minor child, who was bom on January 27, 1996, and that the amount of child support the defendant then was paying would be recomputed at the guideline amount in September, 1998. In November, 1998, pursuant to a September 26, 1998 agreement of the parties, the court, Arena, J., ordered the defendant to pay child support to the plaintiff in the amount of $125 per week and to pay the sum of $661 per month directly to the child’s day care provider. In adopting the parties’ agreement, the court noted that the amount of support to which the parties had agreed represented an acceptable deviation from the guidelines because the parties equally shared physical custody of their child. Subsequently, on April 30, 2001, the court, Parker, J., increased the defendant’s child support obligation to $160 per week because of an increase in his income and in light of the parties’ joint custody arrangement.

“On April 17, 2002, the defendant filed a motion for a downward modification of child support, claiming a decrease of his income due to the termination of his employment. In turn, on December 9, 2002, the plaintiff filed a motion for an upward modification of child support, claiming that the defendant’s financial circumstances had improved since the previous modification in April, 2001. Following a hearing on December 9,2002, the court, Jones, J., issued a preliminary memorandum of decision on April 3, 2003, in which it found that the defendant had an annual earning capacity of $125,000 and the plaintiff had an annual earning capacity of $25,000. Additionally, the court scheduled a supplemental hearing to consider the computation of child support under the guidelines based on the parties’ earning capacities and their passive incomes. Specifically, the court gave the parties an opportunity to be heard on the question of whether the calculation of the defendant’s income should include capital gains realized on certain assets he held and on the question of how to determine the appropriate amount of capital gains and investment income to be included in the calculation of the defendant’s income for purposes of establishing a child support order. That hearing took place on April 21, 2003.

“At the April 21, 2003 hearing, the defendant produced his 2002 federal income tax return, which indicated that he had received $11,424 of income from an investment account valued at $1,025,000 and $1597 in interest from a money market account worth $25,000. Thus, this evidence showed that the defendant’s total passive income in 2002 was $13,021. . . . Therefore, the actual annual return on the defendant’s accounts, calculated by dividing the income of $13,021 by the total value of $1,050,000, was 1.24 percent. . . .

“Subsequently, on July 3, 2003, the court denied the defendant’s motion for a reduction in child support and granted the plaintiffs motion for an increase in child support, ordering the defendant to pay the sum of $285 per week. In reaching the amount of child support, the court considered its assessment of the parties’ respective earning capacities and not their stated incomes from employment. Additionally, the court attributed the sum of $9724 as income to the plaintiff due to a distribution she received from a family partnership. As to the defendant, the court attributed to him an earning capacity based on his education and work history and also found that his annual income from investments and bank accounts amounted to $31,080. . . .

“In reaching this figure, the court stated: The income is imputed on the defendant’s Schwab account ($1,025,000) and his checking account ($25,000) shown on his financial affidavit dated December 6, 2002. The interest rate is 2.96 percent, the five year [treasury] bill rate as of April 14, 2003. . . .

“The defendant appealed to the Appellate Court, claiming that, in awarding an increase in child support, the court improperly (1) imputed greater income to his investments and bank accounts than he actually realized, (2) imputed an unsubstantiated earning capacity to him, (3) failed to deviate from the child support guidelines to account for the parties’ joint physical custody arrangement and (4) made an award of child support to the plaintiff that was, in reality, disguised alimony. . . .

“[T]he Appellate Court concluded that the trial court had abused its discretion by substituting its investment preferences for the defendant’s, thereby imputing a higher rate of return to the defendant’s investments. . . . Moreover, the Appellate Court concluded that, [b]ecause the court’s determination of the defendant’s passive income capacity was an integral part of its overall assessment of the defendant’s income, its calculation of the defendant’s total income was improper. . . . Accordingly, the Appellate Court reversed the judgment of the trial court and remanded the case to that court for a recalculation of the child support order without the imputed investment income.” (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, supra, 280 Conn. 766-69.

Our Supreme Court reversed this court’s judgment and concluded that “the trial court did not abuse its discretion in imputing income in the amount of $18,059, the difference between the income calculated using an ordinary rate of return, the 2.96 percent return on five year treasury bills in this case, and the defendant’s actual income. For the foregoing reasons, we conclude that, in calculating a parent’s income for purposes of a support obligation, the trial court may impute an ordinary rate of return to an asset that yields less than an ordinary rate of return. Accordingly, we reverse the judgment of the Appellate Court. Because the Appellate Court did not reach the defendant’s three other claims on appeal, namely, that the trial court improperly imputed an unsubstantiated earning capacity, failed to deviate from the child support guidelines to account for the parties’ joint physical custody arrangement, and awarded child support to the plaintiff that was, in reality, disguised alimony, we remand the case to that court for a resolution of these claims.” Id., 775-76. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth our standard of review. “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.” (Internal quotation marks omitted.) Angle v. Angle, 100 Conn. App. 763, 771-72, 920 A.2d 1018 (2007). Mindful of these principles, we turn to the issues at hand.

I

The defendant first claims that the court imputed an unsubstantiated earning capacity to him of $156,080. Because we conclude that the record contains ample evidence to support the court’s determination that the defendant had an earning capacity of $125,000, we disagree.

“In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in [General Statutes § 46b-84] (child support).” Bartel v. Bartel, 98 Conn. App. 706, 711, 911 A.2d 1134 (2006). “General Statutes § 46b-84 [d] enumerates a number of factors which the court must consider in determining the respective abilities of the parents to provide maintenance for a child and the amount thereof.” Lucy v. Lucy, 183 Conn. 230, 233, 439 A.2d 302 (1981). General Statutes § 46b-84 (d) provides in relevant part: “In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employ-ability of each of the parents . . . .”

Furthermore, “[i]t is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income.” (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 280 Conn. 772. “While there is no fixed standard for the determination of an individual’s earning capacity ... it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health. . . . Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings.” (Citation omitted; internal quotation marks omitted.) Dees v. Dees, 92 Conn. App. 812, 816, 887 A.2d 429 (2006). Moreover, “[g]iven the beneficial purpose of the state’s scheme for awarding child support, we see no reason to limit [the] consideration of earning capacity to earnings from employment only.” Weinstein v. Weinstein, 87 Conn. App. 699, 705, 867 A.2d 111 (2005), rev’d on other grounds, 280 Conn. 764, 911 A.2d 1077 (2007).

After considering the testimony and exhibits presented at the hearing, the court found the following: “ [The] [d] efendant is forty-eight years of age and in good health. He has a master’s of business administration degree. He was the vice president for product development and had an ownership interest in a company known as Product Technologies. In July, 1988, he signed a contract to sell his interest in Product Technologies . . . [to] ICL International Computer. As a result of this purchase, he received $1.4 million and a consulting-employment contract, which paid him $150,000 per year for a period of three years. The defendant has been employed since October 1, 2001. He is now receiving approximately $51,000 per year as a consultant.

“Prior to the judgment of dissolution, the defendant acquired a one-third interest in a Piper airplane. Since the dissolution, he has invested an additional $50,000 in the plane, which he currently uses when he travels to consulting assignments.” On the basis of this evidence, the court determined that “the defendant’s education and business acumen confer upon him an annual gross earning capacity of $125,000.”

On the basis of those findings, the court reasonably could have imputed an earning capacity of $125,000 to the defendant. Thus, the court did not abuse its discretion, as its determination was neither contrary to the law nor clearly erroneous.

II

The defendant next claims that the court on July 3, 2003, improperly modified the existing child support order. Specifically, the defendant claims that the court improperly modified the support order without accounting for the shared custody agreement in the dissolution decree. In regard to this claim, this court directed the parties to file simultaneous supplemental briefs addressing the following additional issue relating to the defendant’s claim that the court improperly modified the child support order: “Did the trial court abuse its discretion in modifying the child support order without a finding of either a substantial change in the circumstances of either party or that the guideline indicated amount ($285) was at least fifteen percent greater than the guideline indicated amount at the time of the last order on April 30, 2001 ($320)?”

“General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment.” (Internal quotation marks omitted.) Foster v. Foster, 84 Conn. App. 311, 321, 853 A.2d 588 (2004). Section 46b-86 (a) permits the court to modify child support orders in two alternative circumstances. Pursuant to this statute, a court may not modify a child support order unless there is first either “(1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines . . . .” Santoro v. Santoro, 70 Conn. App. 212, 218, 797 A.2d 592 (2002). “Both the substantial change of circumstances and the substantial deviation from child support guidelines’ provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole . . . .” (Internal quotation marks omitted.) Syragakis v. Syragakis, 79 Conn. App. 170, 174, 829 A.2d 885 (2003). In the present matter, the court improperly modified the support order because neither of these two threshold provisions was satisfied.

As to the “substantial change of circumstances” provision of § 46b-86 (a), “[w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and . . . make an order for modification.” (Citation omitted.) Crowley v. Crowley, 46 Conn. App. 87, 92, 699 A.2d 1029 (1997). “A party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper.” Savage v. Savage, 25 Conn. App. 693, 696, 596 A.2d 23 (1991); see Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980); Arena v. Arena, 92 Conn. App. 463, 467, 885 A.2d 765 (2005) (“ [0]nce the trial court finds a substantial change in circumstances, it can properly consider a motion for modification .... After the evidence introduced in support of the substantial change in circumstances establishes the threshold predicate for the trial court’s ability to entertain a motion for modification, [that evidence] comes into play in the trial court’s structuring of the modification orders.” [Internal quotation marks omitted.]); Kalinowski v. Kropelnicki, 92 Conn. App. 344, 350, 885 A.2d 194 (2005); Grosso v. Grosso, 59 Conn. App. 628, 631, 758 A.2d 367, cert. denied, 254 Conn. 938, 761 A.2d 761 (2000); Hayward v. Hayward, 53 Conn. App. 1, 9, 752 A.2d 1087 (1999); Crowley v. Crowley, supra, 92 (“When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion [to modify].” [Citation omitted.]). “The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided . . . or to allow the parties to use a motion to modify as an appeal.” (Citation omitted.) Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994). Rather, “[t]he court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. . . . The inquiiy, then, is limited to a comparison between the current conditions and the last court order.” (Citation omitted; internal quotation marks omitted.) Crowley v. Crowley, supra, 92. “The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Internal quotation marks omitted.) Santoro v. Santoro, supra, 70 Conn. App. 218-19.

In the present case, although the court set forth several findings in its memorandum of decision regarding the parties’ incomes both presently and at the time the prior order was entered, the court did not make a finding that there had been a substantial change in the circumstances of either party. This preliminary finding, however, is a prerequisite to making a modification on the basis of a substantial change of circumstances. By not first finding that there was a substantial change in the circumstances of one of the parties, the court failed to adhere to the mandates of § 46b-86 (a). See id., 219. The factual findings made by the court do not replace the necessity of a specific finding of a substantial change in circumstances. The plaintiff asks us to infer that the court found a substantial change in circumstances from the fact that it did modify the support order. If we were to find from the record that the facts presented to the court established a substantial change of circumstances, we would be engaging in fact-finding, a function not the province of this court. See Branford v. Van Eck, 86 Conn. App. 441, 446-47, 861 A.2d 560 (2004), cert. denied, 272 Conn. 922, 867 A.2d 839 (2005). Moreover, the court’s conclusions regarding the parties’ finances would belie a finding of a substantial change of circumstances warranting an upward modification.

The record reveals that from the date of the prior order on April 30, 2001, to July 3, 2001, the date of the order under appeal, the plaintiffs net weekly income increased from $182.50 to $533, and the defendant’s net weekly income actually decreased from $2014 to $1953. As a consequence, the overall presumptive child support figure assessed to the defendant decreased from $320 to $285. Faced with this calculus, the plaintiff asserts that even though the defendant’s income decreased and her income increased, those changes satisfy the statutory requirement of a substantial change of circumstances warranting an upward modification. By this reasoning, one whose financial circumstances had worsened substantially could be obligated to pay increased child support and, inversely, one whose circumstances had improved substantially could lower his or her support obligation. We reject this argument as specious. In this instance, in which the change was due to a reduction in the payor’s earnings and an increase in the payee’s earnings, that change alone could not warrant an upward modification of the payor’s obligation. See State v. Valinski, 53 Conn. App. 23, 30, 731 A.2d 311 (1999) (legislation should be interpreted rationally to obtain rational result consistent with its legislative purpose), rev’d on other grounds, 254 Conn. 107, 756 A.2d 1250 (2000).

Second, and pursuant to the “substantial deviation from the guidelines” provision of § 46b-86 (a), “[a] court has the power to modify a child support order on the basis of a substantial deviation from the guidelines independent of whether there has been a substantial change in the circumstances of a party.” Mullin v. Mullin, 28 Conn. App. 632, 635, 612 A.2d 796 (1992). In its memorandum of decision, the court stated that “[t]he court finds that incorporating the . . . net weekly income figures into the calculus of the child support guidelines produces a presumptive child support figure, assessed to the defendant, of $285 per week. This number is ‘substantially greater’ than the current order of $160 per week.” The court’s recitation suggests that the court also concluded, as a ground for modifying the child support order, that the final order for child support entered in 2001 ($160) substantially deviated from the child support guideline figure calculated in 2003 ($285) pursuant to § 46b-86 (a).

As noted, however, § 46b-86 (a) provides in relevant part that “any final order for the periodic payment of . . . support . . . may . . . be . . . modified . . . upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. ...” (Emphasis added.) Thus, in determining whether a modification is warranted on this basis, one must calculate the guideline support amount to determine if the final order, or prior order, is at least 15 percent higher or lower than the guideline indicated amount. However, “once the court enters an order of child support that substantially deviates from the guidelines, and makes a specific finding that the application of the amount contained in the guidelines would be inequitable or inappropriate, as determined by the application of the deviation criteria established in the guidelines, that particular order is no longer modifiable solely on the ground that it substantially deviates from the guidelines.” (Emphasis added.) McHugh v. McHugh, 27 Conn. App. 724, 728-29, 609 A.2d 250 (1992). The reasoning of this decisional guidance is clear. An order based on the presumptive amount indicated by the guidelines may regularly be substantially different from an order based on a deviation from the guidelines. Such appears to be the factual and procedural posture in this instance. When the court entered its order on April 30, 2001, it found that the presumptive support obligation of the defendant was $320 a week, but it ordered him to pay $160 a week on the basis of the parties’ joint physical custody arrangement, a permitted deviation criterion pursuant to the child support guidelines. See Regs., Conn. State Agencies § 46b-215a-3 (b) (6) (A). Thus, because the 2001 order was not a guideline order, but was rather a deviation from the guidelines, that order was not modifiable pursuant to the substantial deviation prong of § 46b-86 (a).

Because the existing child support order of $160 per week was an order entered on the basis of a deviation from the guidelines’ presumptive amount, the plaintiff is entitled to a modification only on a showing of a substantial change in circumstances. In the present case, the court did not find that a substantial change in circumstances existed entitling the plaintiff to modification, nor indeed does it appear that such a change exists. Therefore, we conclude that the court improperly modified the child support order without first satisfying the threshold criterion of finding a substantial change in circumstances as set forth in § 46b-86 (a).

The judgment is reversed and the case is remanded with direction to deny the motion to modify.

In this opinion the other judges concurred.

       “In reaching the support amount, the court deviated from the amount indicated by the child support guidelines by 50 percent because of the parties’ joint physical custody arrangement.” (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 280 Conn. 766 n.3.

       We note that the $156,080 earning capacity figure found by the court is comprised of two distinct amounts, namely, $125,000 and $31,080. The court stated: “As to [the] defendant, Luke Weinstein, the court finds that he has income on assets of $31,080, which, when added to his annual earning capacity of $125,000, brings his total income annually to $156,080. . . . The income [as to the $31,080] is imputed on the defendant’s Schwab account ($1,025,000) and his checking account ($25,000) shown on his financial affidavit, dated December 6,2002. The interest rate is 2.96 percent—the five year T bill rate as of April 14, 2003.”
      As to the $31,080 sum, the defendant’s sole argument is that the court applied the incorrect interest rate to his investment and bank accounts when it calculated his earning capacity from this financial resource. Our Supreme Court, however, previously resolved this issue and held that the court applied the correct interest rate. See Weinstein v. Weinstein, supra, 280 Conn. 764. Moreover, the court stated: “The defendant did not dispute that both the investment account valued at $1,025,000 and the money market account valued at $25,000 were investment accounts to which unrealized income may be imputed under certain circumstances. We recognize that there may be situations in which it would be improper to impute income to all amounts held in income producing assets because some amounts may be necessary for living expenses and cannot properly be deemed an investment. Because the defendant did not claim in the trial court that the money held in his investment accounts was necessary to pay for his living expenses, the trial court correctly imputed income on the entire $1,050,000.” Id., 775 n.10. Accordingly, we address the defendant’s arguments only as to the $125,000 amount.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of . . . support . . . may at any time thereafter be continued, set aside, altered or modified . . . upon a showing of a substantial change in circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support, guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. . .

       Moreover, the presumptive child support amount pursuant to the guidelines found by the court on April 30, 2001, before the court deviated from it due to the joint custody arrangement, was $320. The guideline amount at the time of the hearing on July 3,2003, was $285. Even if we were to compare these two figures, not only would it represent a downward change in the defendant’s support obligation, which would not warrant an increase in his child support obligation, but it would be a difference of less than 15 percent and, thus, not a substantial deviation as required by General Statutes § 46b-86 (a).

       Because we reverse the judgment on this ground, we need not address the defendant’s claim that the court improperly awarded child support to the plaintiff that was, in reality, disguised alimony. Indeed, on the basis of our conclusion as to the factual findings made by the court as to the defendant’s earning capacity, the defendant’s claim is without basis in fact or law.
      Additionally, we decline the defendant’s invitation to devise a formula providing for a deviation from the child support guidelines on the basis of shared physical custody. We do note, however, that the section of the guidelines concerning shared physical custody as a deviation criterion is, at best, perplexing, as the section refers simultaneously to shared physical custody while also using the terms “custodial parent” and “noncustodial parent.” In a shared parenting context, one must wonder which term applies to whom. Nevertheless, we leave legislation to the legislature and, as well, we decline to oiler an advisory opinion even though the circumstance may thirst for clarification. See National Amusements, Inc. v. East Windsor, 84 Conn. App. 473, 485, 854 A.2d 58 (2004).