Caruso v. Davis, No. Fa 88 0085012 (Sep. 4, 1998)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISIONThis is an appeal from a decision of the Family Support Magistrate (Trombly, M.) Dated May 14, 1998, denying the appellant's motion to modify downward his support obligation. This appeal was taken pursuant to Section 46b-231 (n)(A), Conn. General Statutes.

The State of Connecticut, acting through Assistant Attorney General J. Bernard Davis, did not appear before the court in this appeal and it was represented that the State would not oppose the factual argument presented by the appellant.

The plaintiff Samantha Caruso did not appear or otherwise participate in the appeal.

The appellant testified before this court that at the time the order appealed from was entered by the magistrate the appellant had been unemployed because his employer had fired him CT Page 10324 after the employer's tools were stolen from a truck operated by the appellant and he was wrongfully accused of having stolen them. Notwithstanding that unrefuted testimony, the magistrate found that the appellant had left that employment voluntarily.

Having found that the appellant had left his employment voluntarily and went on to make a determination as to the appellant's earning capacity, as a basis for his support obligation, was $400.00 per week.

The appellant conceded that the magistrate may have been mislead by the appellant's previous financial affidavit and by the appellant's voluntary agreement to pay support amount in excess of the guidelines when he set the current order for support.

He further argued that during the evidence and testimony statement were made which gave the magistrate the impression that the appellant was a "mason" when in fact he was employed (merely) as a construction laborer at a pay appreciably lower than what a mason commands. That also was, according to the appellant, incorrectly factored into the "earning capacity" finding by the magistrate.

There being no objection to the testimony offered by the appellant before this court, the court enters the following orders.

The appeal is hereby sustained and the matter is remanded to the Family Support Magistrate for further evidence and testimony and for appropriate orders concerning the appellant's current arrearage and support obligation.

By the Court, Joseph W. Doherty, Judge