KNAPP v. KNAPP, No. FA 90 0111194 S (Apr. 1, 2005)

HARRIGAN, JUDGE TRIAL REFEREE.

The plaintiff father filed a motion for modification dated April 22, 2004 asking that an earlier zero order be modified and that the mother be ordered to pay child support. The father was awarded physical custody in 2000 and an earlier order that required him to pay child support was reduced to zero.

The matter came before the court (E. Miller, Magistrate) on May 24, 2004. This court has examined the transcript. Both parties were asked to swear or affirm as witnesses. In the transcript there are several statements by a person called "(unidentified)" who volunteered information. There is no indication that the said person is on the stand or that either the AAG or the pro se defendant had an opportunity to inquire. After an ongoing colloque the magistrate granted a continuance to July 1st at the mother's request to allow her the opportunity to return with a lawyer.

On July 1st another magistrate took the bench (W.E. Strada, Jr. Magistrate) and the parties were again asked to swear or affirm. The mother appeared with her attorney. After further discussion among the AAG, the mother's lawyer and the court, the matter was continued by the presiding magistrate to give him time to review the file and to allow another AAG to resume responsibility for the file. The matter was then continued to November 4, 2004 at 2:15 but the next hearing was begun on February 3, 2005 with Magistrate Miller presiding.

The defendant's lawyer had withdrawn from the matter without court permission via an in lieu pro se appearance signed by the defendant.

The conclusion reached was that the defendant should be working CT Page 5838 five days weekly at her quoted rate of $15 hourly. She acknowledged working two days weekly. Weinstein v. Weinstein, 87 Conn.App. 699, released on March 1, 2005, sets forth the findings necessary to justify the application of earning capacity. The support for the finding must be found in the record. It is not the function of this court to retry the issues but to determine if the record supports the conclusions reached by the trier of fact. There is sufficient in the record to do so.

The defendant's appeal is dismissed.

HARRIGAN, J.T.R. CT Page 5839