Full Opinion

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of 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 Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the 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 an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ Borsey v. Borsey WILSON, J., concurring. I write separately because I respectfully disagree with the majority’s remand order in connection with the first claim raised on appeal by the defendant, Nicole Borsey, that the trial court improp- erly denied her claim for an educational support order pursuant to General Statutes § 46b-56c. I agree with the majority’s well reasoned analysis of the defendant’s remaining claims and concur in the judgment reversing in part the judgment of the trial court. The defendant argues that the court improperly denied her claim for an educational support order because the denial was based on a finding of fact that was clearly erroneous, namely, that the parties would not have con- tributed to their child’s higher education if the family had remained intact. According to the defendant, this finding was clearly erroneous because it contradicted the court’s separate finding that the plaintiff, John Borsey, had in fact agreed to give the child $12,000 to assist with the first year of the child’s postsecondary education. The parties presented conflicting evidence at trial with respect to the issue of whether the plaintiff would have contributed to the child’s postsecondary education had the family remained intact. On the one hand, there was evidence that the plaintiff never agreed to pay for col- lege expenses because he was not a proponent of a college education. The court found that the plaintiff had testi- fied credibly with respect to these specific views. There was also testimony that the plaintiff did not participate in the college application process. The court found that these actions were consistent with his expressed views about college. On the other hand, there was testimony from the defendant that the plaintiff had agreed to give the child $12,000 to assist with the first year of college. The plaintiff did not wholeheartedly agree that this occurred, testifying that he did not recall any “specific language” used by him with respect to such a contribu- tion toward college. Nonetheless, he testified that the $12,000 contribution amount “sound[ed] reasonable” because it was mathematically consistent with what he Borsey v. Borsey had been providing for child support. Certainly, it is not unusual for a court to be confronted with conflicting evidence, and “[i]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony . . . .” (Internal quotation marks omitted.) Marzaro v. Marzaro, 231 Conn. App. 85, 119, 333 A.3d 134, cert. denied, 351 Conn. 925, 333 A.3d 795 (2025). “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 rea- sonably conclude as it did, based on the [evidence] pre- sented. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations mat- ters, we allow every reasonable presumption in favor of the correctness of its action . . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. . . . 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. . . . As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .” (Citation omitted; emphasis omitted; internal quotation marks omitted.) Kirwan v. Kirwan, 185 Conn. App. 713, 726, 197 A.3d 1000 (2018). In light of the court’s two conflicting findings, I agree with the majority opinion insofar as it concludes that the specific finding challenged by the defendant, that the parties would not have contributed to the child’s Borsey v. Borsey education if the family had remained intact, is clearly erroneous and cannot stand. “An appellant bears the burden of demonstrating that a court's erroneous find- ing was harmful because it likely affected the result.” Bueno v. Firgeleski, 180 Conn. App. 384, 404, 183 A.3d 1176 (2018). Here, the erroneous finding that the parties would not have contributed to the child’s postsecondary education if the family had remained intact was harmful because it was the factual basis for the court’s denial of the defendant’s claim for an educational support order pursuant to § 46b-56c. Having determined that the error was harmful, it is this court’s duty to craft an appropriate remedy. This is where I respectfully diverge from the analysis set forth in the majority opinion, which sets aside one con- tradictory finding—that the parties did not intend to contribute to the child’s college expenses if the family had remained intact—only to then substitute in its place the court’s other contradictory finding—that the plain- tiff had agreed to contribute $12,000 to the child’s first year college expenses. In the present case, I believe that the only option available to this court is to reverse the judgment denying the educational support order and to remand the case to the finder of fact, the trial court, for further proceedings, based on the existing record, in which the issue of whether the parties would have contributed to college expenses for the child if the fam- ily had remained intact may be duly considered by the court. If, during the proceedings on remand, the trial court makes the threshold finding that the parties would have contributed to the child’s postsecondary education had the family remained intact, it should be directed to duly consider whether an educational support order is appropriate in light of the relevant statutory factors set forth in § 46b-56c (c). The trial court’s decision reflects that the parties pre- sented conflicting evidence with respect to the issue of whether the plaintiff would have contributed to the child’s college education if the family had remained Borsey v. Borsey intact. The court’s finding that the parties would not have contributed to the child’s education is clearly erro- neous not due to an absence of evidence to support it but because the court made findings with respect to this issue that simply cannot be reconciled. The trial court’s decision reflects an inexplicable flaw in the court’s fact-finding process, and there is no legal or logical basis upon which this court may determine that one finding rather than the other is correct. That would amount to fact finding. Rather, on this record, the conflicting findings—both of which find support in the evidence—undermine appellate confidence in both find- ings. If the challenged finding was not supported by the evidence, we could set it aside and consider whether the court’s remaining findings could remain intact. Where the findings as a whole are suspect, however, the proper course is to remand the case for new fact findings to be made. See Osborn v. Waterbury, 197 Conn. App. 476, 485, 232 A.3d 134 (2020) (“[W]here . . . some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. . . . If, when taken as a whole, they undermine appellate confidence in the court's [fact-finding] process, a new hearing is required.” (Internal quotation marks omit- ted.)), cert. denied, 336 Conn. 903, 242 A.3d 1010 (2021). I draw guidance from this court’s opinion in Casiraghi v. Casiraghi, 200 Conn. App. 771, 241 A.3d 717 (2020). In Casiraghi, the trial court, among other things, granted two postdissolution motions for contempt brought by the defendant and “conclude[d] that the plaintiff wil- fully had failed to pay in full his unallocated alimony and child support obligation to the defendant or make required installment payments toward the satisfaction of a lump sum property distribution award.” Id., 773. The plaintiff challenged these orders on appeal before this court. Id., 785. This court, having reviewed the trial court’s memorandum of decision, noted that the decision Borsey v. Borsey contained conflicting findings of fact. Id., 789–91. On the one hand, the court expressly credited the income reflected in the plaintiff’s financial affidavit, which demonstrated his inability to comply with his financial obligations to the defendant. Id., 790. On the other hand, the court found that he wilfully failed to meet such finan- cial obligations. Id., 791. This court reasoned: “Because the [trial] court’s finding of wilfulness stands in direct contradiction to the facts found by the court related to the plaintiff’s ability to pay, we are left with the definite and firm conviction that the finding is clearly erroneous and, thus, cannot stand. Accordingly, we remand for a new hearing at which his defense [of inability to pay] may be duly considered by the court.” Id. Like the trial court’s decision in Casigrahi, the trial court’s decision in the present case contains two find- ings directly contradicting each other, with one being the factual basis for the judgment. We are presented with a situation in which the court made contradictory findings that find support in the evidence. Thus, there is no basis for this court to conclude as a matter of law that one of those conflicting findings is correct without invading the exclusive fact-finding role of the trial court. This court, in Casigrahi, did not set aside the erroneous finding of wilfulness only to substitute an opposite find- ing consistent with the plaintiff’s financial disclosures. Instead, it recognized that the conflicting findings war- ranted a new hearing on the issue of whether the plain- tiff’s noncompliance was wilfull. I would follow that same approach here, as I believe it is consistent with the bedrock principle that “this court does not find facts.” Szilvasy v. Szilvasy, 3 Conn. App. 249, 249, 487 A.2d 204 (1985). Rather, it is the exclusive province of the trial court to weigh the type of conflicting evidence that was presented in this case and to find where the truth lies. See State v. Andino, 173 Conn. App. 851, 863–64, 162 A.3d 736 (it is exclusive role of trial court to weigh conflicting evidence), cert. denied, 327 Conn. 906, 170 A.3d 3 (2017); Sullivan v. Thorndike, 137 Conn. App. 223, 230, 48 A.3d 130 (2012) (credibility determinations Borsey v. Borsey are exclusive province of trial court as fact finder, which we refuse to disturb). For the foregoing reasons, I respectfully concur in the judgment.