Al-Fikey v. Obaiah

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

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 advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

The syllabus and procedural history accompanying the
opinion as it appears 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 Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
REEM AL-FIKEY v. MOHAMED OBAIAH
(AC 41061)
Moll, Devlin and Beach, Js.

Syllabus

The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and issuing certain financial
orders. Held:
1. The trial court’s finding that the defendant was at fault for the irretrievable
breakdown of the marriage was not clearly erroneous; sufficient evi-
dence supported the court’s finding, including evidence that the defen-
dant abruptly left the marital home with little explanation.
2. The trial court properly found that the defendant was intentionally under-
employed when calculating his earning capacity: even though the defen-
dant claimed that the court erred in basing his earning capacity on his
prior work as an information technology consultant because he claimed
his qualifications were outmoded to work in that field, this contention
relied on the defendant’s testimony regarding the amount and sources
of his income, which the court expressly found was not credible, there
was little support in the record for the defendant’s claim that he could
not pursue additional employment in his field, and there was evidence
that the defendant had, as recently as 2013, worked in the field of
information technology, but had done little since then to improve his
qualifications or pursue additional employment in the field; thus, it was
not clearly erroneous for the court to to calculate its support orders on
the basis of the defendant’s earning capacity rather than his actual
income.
3. The defendant could not prevail on his claim that the trial court improperly
determined which properties were part of the marital estate; although
the defendant claimed that numerous properties should not have been
included in the marital estate because the plaintiff made no contribution
to the acquisition of these properties and the defendant did not have
title to these properties when the marriage was dissolved, the court
recognized that the marital home was foreclosed because of the defen-
dant’s misconduct and, in lieu of the marital home, the court awarded
the plaintiff a single property and, at the same time, awarded the defen-
dant his current residence along with seven additional properties; the
court acted within its broad discretion in dividing the properties as it
did, having been confronted with a complicated record regarding the
defendant’s property ownership, and its decision to award the parties
separate residences and to allow the defendant to retain whatever inter-
est he possessed in seven other properties was reasonable.
Argued October 22, 2019—officially released February 25, 2020

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Tin-
dill, J.; judgment dissolving the marriage and granting
certain other relief, from which the defendant appealed
to this court. Affirmed.
Igor G. Kuperman, for the appellant (defendant).
Alex J. Martinez, for the appellee (plaintiff).
Opinion

DEVLIN, J. The defendant, Mohamed Obaiah, appeals
from the judgment of the trial court dissolving his mar-
riage to the plaintiff, Reem Al-Fikey. The defendant
asserts that the trial court improperly (1) found him at
fault for the irretrievable breakdown of the marriage,
(2) found that he was intentionally underemployed
when calculating his earning capacity, and (3) deter-
mined which properties were part of the marital estate.
We affirm the judgment of the trial court.
The following facts, as found by the trial court or
undisputed in the record, and procedural history are
relevant. On September 19, 1997, the parties were mar-
ried in Cairo, Egypt. They have two daughters resulting
from their union, both of whom are now adults. Shortly
before the marriage, the defendant acquired a parcel
of land in Egypt (Egyptian property) with the intent
that it would be the parties’ home if they decided to live
in Egypt. During the marriage, the defendant worked for
many years as an information technology consultant.
In connection with his work, the parties moved from
Egypt and, eventually, settled in Cos Cob in 2003, and
acquired the marital home at 453 East Putnam Avenue
(Cos Cob home).
In September, 2007, the defendant entered into a
financial arrangement with Mohsen Shawarby regard-
ing property located at 3570 Ellis Street, Mohegan Lake,
New York (Mohegan Lake property). Shawarby did not
have the credit score necessary to obtain a mortgage
to complete new construction on a neighboring prop-
erty, so, instead, he agreed to transfer his interest in
the Mohegan Lake property to the defendant for a nomi-
nal fee. The plan was that the defendant would then
obtain a mortgage for the Mohegan Lake property and
Shawarby would make the mortgage payments. On Sep-
tember 2, 2007, the defendant and Shawarby executed
a contract wherein Shawarby agreed to transfer title to
the Mohegan Lake property to the defendant. Although
the contract provided that the defendant would, at an
unspecified date, return title to the Mohegan Lake prop-
erty to Shawarby, evidence introduced at trial estab-
lished that, at least as of the date of dissolution, the
defendant still possessed title to the Mohegan Lake
property.
In the summer of 2009, as the plaintiff was preparing
to travel with her daughters to visit family in Egypt,
the defendant informed her that he would not be at their
marital home when she returned. When the plaintiff
returned with her daughters from Egypt in August, 2009,
she discovered that the defendant had, in fact, departed
from their home in Cos Cob. Since the summer of 2009,
the parties have remained separated, although the plain-
tiff has made repeated attempts to repair the rela-
tionship.
Beginning in 2011, the defendant acquired numerous
properties for various purposes. For a number of these
properties, the defendant received money from his
mother in Egypt to purchase them in his name, in her
name, or on her behalf. At times, the defendant would
represent his mother’s interest in various limited liabil-
ity companies and exercised power of attorney on her
behalf for some transactions. In Bridgeport, he either
directly acquired or was involved in the acquisition of
eight different properties: 96-98 Washington Terrace
(Washington Terrace property), 674-676 Iranistan Ave-
nue (674 Iranistan property), 224-228 Sheridan Street
(Sheridan property), 69-71 Harral Avenue (Harral prop-
erty), 97–99 Poplar Street, 1373 Iranistan Avenue (1373
Iranistan property), 525-527 Connecticut Avenue (Con-
necticut Avenue property), and 1526-1528 Fairfield Ave-
nue (Fairfield Avenue property). As of the time of trial,
the Washington Terrace property was the defendant’s
residence.
In 2012, the defendant was laid off from his job as
an information technology consultant. Prior to the lay-
off, he was earning a salary of $117,000 per year. In 2013,
he was temporarily employed with another company
as an information technology consultant, earning $55
an hour. Since that time, the defendant has primarily
worked in customer service and reported earnings that
are far less than he was earning as an information tech-
nology consultant.
On March 10, 2013, the plaintiff commenced this dis-
solution action, and trial began on May 1, 2015. On
October 31, 2017, following twenty-six days of trial
spanning nearly two and one-half years, the court, Tin-
dill, J., rendered judgment dissolving the marriage. In
its memorandum of decision, the court made orders
regarding, inter alia, property distribution and alimony.
The court found the defendant at fault for the irretriev-
able breakdown of the marriage. The court found that
the defendant was intentionally underemployed and
awarded alimony to the plaintiff on the basis of his
earning capacity. With respect to the property division,
the court found that the following properties were part
of the marital estate: the Egyptian property, the
Mohegan Lake property, the Cos Cob home, the Wash-
ington Terrace property, the 674 Iranistan property,
the Sheridan property, the Harral property, the 1373
Iranistan property, the Connecticut Avenue property,
the Fairfield Avenue property, and property located at
97 Iranistan Avenue in Bridgeport. The court also found
that, as a result of the defendant’s ‘‘intentional delay
and neglect,’’ the Cos Cob home was foreclosed prior
to the dissolution judgment. On the basis of these find-
ings of fact, the court awarded the Mohegan Lake prop-
erty to the plaintiff,1 the eight Bridgeport properties to
the defendant, and ordered that each party retain his
or her own ownership interest in any real estate located
in Egypt. This appeal followed.
We begin by setting forth the relevant 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 rela-
tions 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 convic-
tion that a mistake has been committed. . . . There-
fore, to conclude that the trial court abused its discre-
tion, we must find that the court either incorrectly
applied the law or could not reasonably conclude as it
did.’’ (Internal quotation marks omitted.) Emerick v.
Emerick, 170 Conn. App. 368, 378, 154 A.3d 1069, cert.
denied, 327 Conn. 922, 171 A.3d 60 (2017).
Moreover, insofar as the defendant challenges the
trial court’s determinations of credibility, we note that
‘‘[i]t is well established . . . that the evaluation of a
witness’ testimony and credibility are wholly within the
province of the trier of fact. . . . Credibility must be
assessed . . . not by reading the cold printed record,
but by observing firsthand the witness’ conduct,
demeanor and attitude. . . . An appellate court must
defer to the trier of fact’s assessment of credibility
because [i]t is the [fact finder] . . . [who has] an oppor-
tunity to observe the demeanor of the witnesses and
the parties; thus [the fact finder] is best able to judge
the credibility of the witnesses and to draw necessary
inferences therefrom. . . . Thus, while we may review
the court’s underlying factual determinations under the
clearly erroneous standard, our review requires us to
defer to the court’s evaluation of the plaintiff’s credibil-
ity relative to that of the defendant.’’ (Citation omitted;
internal quotation marks omitted.) Id., 378–79.
I
The defendant first claims that the trial court errone-
ously concluded that he was at fault for the breakdown
of the marriage. We disagree. A trial court’s finding of
fault in a dissolution action is reviewed under a clearly
erroneous standard. See Emerick v. Emerick, supra,
170 Conn. App. 383 n.11; see also Jewett v. Jewett, 265
Conn. 669, 692–93, 830 A.2d 193 (2003). Our review of
the extensive record before the trial court reveals that
there was sufficient evidence to support its finding that
the defendant was at fault for the irretrievable break-
down of the marriage.2 For example, in the summer of
2009, the defendant abruptly left the marital home with
little explanation and moved to Canada to live with his
mother. He ultimately returned to the United States,
but lived separately from the plaintiff and their children.
The court’s finding of fault was not clearly erroneous.
II
The defendant next claims that, when fashioning its
support orders, the court erroneously concluded that
he was intentionally underemployed. We disagree.
General Statutes § 46b-82 (a) provides in relevant
part: ‘‘In determining whether alimony shall be
awarded, and the duration and amount of the award,
the court shall consider the evidence presented by each
party and shall consider the length of the marriage, the
causes for the annulment, dissolution of the marriage
. . . the age, health, station, occupation, amount and
sources of income, earning capacity, vocational skills,
education, employability, estate and needs of each of
the parties . . . .’’ Moreover, ‘‘[i]t is well established
that the trial court may under appropriate circum-
stances in a marital dissolution proceeding base finan-
cial awards [pursuant to General Statutes §§ 46b-82 (a)
and 46b-86] on the earning capacity of the parties rather
than on actual earned income. . . . Earning capacity,
in this context, 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 realisti-
cally be expected to earn considering such things as
his vocational skills, employability, age and health. . . .
When determining earning capacity, it . . . is espe-
cially appropriate for the court to consider whether
[a person] has wilfully restricted his [or her] earning
capacity to avoid support obligations.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Tanzman v. Meurer, 309 Conn. 105, 113–14, 70
A.3d 13 (2013). A trial court’s finding of earning capacity
warrants reversal only if it is clearly erroneous. See
Milazzo-Panico v. Panico, 103 Conn. App. 464, 468–69,
929 A.2d 351 (2007).
On appeal, the defendant claims that his qualifica-
tions are outmoded to work currently as an information
technology consultant and, thus, it was erroneous for
the court to base his earning capacity on his prior work
in that field. This contention, however, relies on the
testimony of the defendant regarding the amount and
sources of his income, which the court expressly found
was ‘‘not credible.’’ As noted, we are bound by the trial
court’s determinations of credibility. In the absence of
the defendant’s testimony on this issue, there is little
support in the record for his argument that he cannot
pursue additional employment in his area of expertise.
Conversely, there was evidence before the court that,
as recently as 2013, the defendant had been employed
in the field of information technology, but has done
little since then to improve his qualifications or pursue
additional employment in the field. Therefore, it was
not clearly erroneous for the court to conclude that
the defendant was intentionally underemployed and to
calculate its support orders on the basis of his earning
capacity rather than his actual income.
III
Lastly, the defendant claims that the court improperly
determined which properties were part of the marital
estate and subject to division. Specifically, he argues
that numerous properties3 should not have been
included because (1) the plaintiff made no contribution
to the acquisition of these properties, and (2) the defen-
dant did not have title to these properties at the time
the marriage was dissolved. In the court’s decision, it
recognized that the Cos Cob home was foreclosed on
account of the defendant’s misconduct. In lieu of the
marital home, the court instead awarded the plaintiff
a single property: the Mohegan Lake property. At the
same time, the court awarded the defendant his current
residence at the Washington Terrace property along
with seven additional properties. We conclude that the
trial court acted within its broad discretion in dividing
the properties as it did. The trial court was confronted
with a complicated record regarding the defendant’s
property ownership. Its decision to award separate resi-
dences to each party and to allow the defendant to
retain whatever interest he possessed in the seven other
Bridgeport properties was reasonable.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In the event that the defendant no longer owned the Mohegan Lake
property, the court ordered him to pay to the plaintiff the fair market value
of the property as of October 31, 2017.
2
We note that the trial court did not expressly connect its finding of fault
to its financial orders, nor did the defendant claim any such connection.
3
The court’s judgment reflected eleven properties in the marital estate,
noting that the ‘‘properties are subject to division by the [c]ourt by virtue
of the [d]efendant’s interest therein . . . .’’ On appeal, the defendant has
made no argument to challenge the court’s orders regarding the Cos Cob
home or the Washington Terrace property. Therefore, we need only address
the validity of the court’s orders concerning the remaining nine properties.