Askinazi v. Askinazi

• Citation: 34 Conn.App. 328,641 A.2d 413
• Decision Date: 10 May 1994
• Docket Number: No. 11602,11602
• Court: Appellate Court of Connecticut
• Parties: Joseph ASKINAZI v. Andree ASKINAZI.

Page 413

641 A.2d 413

34 Conn.App. 328

Joseph ASKINAZI v. Andree ASKINAZI.

No. 11602.

Appellate Court of Connecticut.

Argued January 4, 1994.

Decided May 10, 1994.

Carolyn Richter, Middletown, with whom was Claudine Siegel, South Norwalk, for appellant (defendant).

Richard G. Kent, Bridgeport, for appellee (plaintiff).

Before EDWARD Y. O'CONNELL, HEIMAN and SPEAR, JJ.

SPEAR, Judge.

In this appeal from the judgment rendered in a marital dissolution action, the defendant claims that (1) the trial court's financial orders are inconsistent with its underlying findings, (2) the trial court improperly terminated the defendant's survivorship interest in the plaintiff's pension (survivorship benefit) because it erroneously construed such an interest as alimony rather than property, and (3) the trial court's financial orders failed to protect the interests of the financially disadvantaged defendant. We disagree with all of the defendant's claims and affirm the trial court's judgment.

The trial court made the following findings. The parties were married on December 28, 1980, at Cedarhurst, New York, and there were no children of the marriage. Both parties contributed to the breakdown of the eleven year marriage, but the court ascribed more blame to the plaintiff than to the defendant. Although the plaintiff brought a substantially higher income to the marriage, he used significant joint funds to pay his gambling losses during the marriage.

The court entered the following property distribution and alimony orders. The defendant was awarded the leasehold interest in the premises occupied by the parties in Fairfield together with the cash deposit held by the lessor, a 1983 AMC automobile, her jewelry, fur coats and gold bracelets, a money market fund valued at $2323.21, her individual retirement account (IRA) in the amount of $24,131.47, an inheritance of $4622.11, her interest in a bank account entitled "Claudette Stark in Trust for Andree Askinazi," ¹ and numerous items of furniture and household furnishings. The court also awarded her 15 percent of the plaintiff's United States government pension as alimony to be paid monthly (approximately $400 per month).

The plaintiff was awarded his 1986 Buick Century automobile, his checking account balance in the amount of $6076.21 and certain household furnishings and items of personal property. Neither party was awarded counsel fees.

The trial court's memorandum of decision did not specifically mention the survivorship benefit that was a part of the plaintiff's pension plan. In response to the defendant's motion for articulation, the trial court stated that it had denied the defendant's request that she be awarded a survivorship interest in the plaintiff's pension.

I

The defendant first claims that the trial court abused its discretion because the financial orders are inconsistent with the court's findings and unreasonable under the statutory criteria for property and alimony awards set forth in General Statutes §§ 46b-81(c) ² and 46b-82. ³ We are unpersuaded.

"Our standard of review in domestic relations cases is clear. We will not reverse a trial court's rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did." Watson v. Watson, 20 Conn.App. 551, 553-54, 568 A.2d 1044 (1990). "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria." Debowsky v. Debowsky, 12 Conn.App. 525, 526, 532 A.2d 591 (1987). In exercising that discretion pursuant to General Statutes § 46b-81, a trial court may assign to either spouse all or any part of the property owned by the other spouse. Id. "Pursuant to General Statutes § 46b-82, a trial court has similar discretion to award alimony to either spouse. These statutory provisions for the award of alimony and assignment of property are permissive, not mandatory. Such awards rest in the sound discretion of the trial court and will not be interfered with unless it appears that such discretion has been abused." Id. "A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court's action to determine ultimately whether the court could reasonably conclude as it did.... This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant." (Citation omitted; internal quotation marks omitted.) Fiddelman v. Redmon, 31 Conn.App. 201, 206, 623 A.2d 1064 (1993).

The defendant claims that she was subjected to menace, threats, physical force and vile and abusive language by the plaintiff. The defendant argues that this is one of the reasons why she should have received more favorable financial orders. The court found, however, that both parties had contributed to the breakdown of the marriage by their "mental and physical actions and reactions." The court went on to find that on some occasions the plaintiff used vile and abusive language when communicating with the defendant as well as physical force, both of which she returned in a lesser degree. Thus, the trial court found that the defendant had engaged in the same kind of behavior that she complains of with respect to the plaintiff.

The defendant also claims that she was entitled to more favorable financial orders because the plaintiff dissipated their assets through gambling. The plaintiff testified that he and the defendant spent 95 percent of their Saturdays at Jai-Alai. He further testified that, although the defendant bet on the games only once, she loved it and eagerly shared in his winnings. The defendant denied these assertions, except that she admitted to having attended Jai-Alai with her husband. Whether the defendant tacitly approved of the gambling by her conduct, and the weight, if any, to be given to that conduct in its assessment of the causes of the breakdown of the marriage were issues for the trial court to resolve. The trial court reasonably could have found such approval from the conflicting evidence and could have concluded that the defendant, therefore, bore some responsibility for the gambling losses.

The defendant further asserts that with respect to the likelihood of future employment, the court did not properly consider that (1) the defendant is four years older than the plaintiff, (2) the plaintiff had a significantly higher earning capacity than the defendant, and (3) the defendant's social security would abate if she found employment, while the plaintiff's pension would be unaffected by future employment.

The court, in its articulation, stated that it weighed and considered the parties' ages and employability. "The court is not obligated to make express findings on each of these [General Statutes §§ 46b-81 and 46b-82] criteria." Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). Furthermore, the defendant conceded in her brief that the trial court accurately stated at the hearing ⁴ on the motion for articulation that "neither one of them is a youngster, and employment does not come easily." Our review of the record and the transcripts reveals no evidence from which the court could have made a finding as to the abatement of the defendant's social security if she found employment.

The defendant next argues that the alimony order leaves her impoverished and the plaintiff in a better financial position than he was in during the marriage. This claim is based on a comparison of the plaintiff's monthly gross income after the dissolution with the parties' joint monthly gross income before dissolution. This comparison is not useful because it does not consider any deductions from gross income or compare the parties' (presumably lower) joint living expenses before their separation with the total of their separate living expenses following the dissolution. The plaintiff's financial affidavit shows significantly higher living expenses than shown by the defendant's, a "need" that the trial court was required to consider pursuant to General Statutes § 46b-82. ⁵ Neither party will have enough income to meet the monthly expenses claimed in their respective affidavits. The alimony order reduced the defendant's monthly deficit significantly and increased the plaintiff's monthly deficit. In view of the plaintiff's considerably higher living expenses, we cannot say that this order was inconsistent with the court's findings or unreasonable in light of the statutory criteria.

The defendant also argues that by leaving her with only the assets that she possessed at the time of the dissolution, with the exception of the survivorship benefit, the court apparently felt that she was entitled to those assets only and could make no claim to the assets "appropriated" by the plaintiff. The defendant goes on to argue that the court apparently did not consider the statutory criteria in "this non-allocation-let-everything-sit-where-it-is way of 'distributing' assets." In its memorandum of decision, the trial court specifically points out that the plaintiff had used "significant joint sums" for gambling losses, that he had appropriated about $23,000 for his own use and that the court considered that factor in arriving at its property division. "It is often the case that the appellant, in arguing abuse of discretion, would in reality have this court vary either the weight placed upon specific statutory criteria or the weight placed upon documentary or testimonial evidence.... Such an excursion by this court into the domain of the trier is unacceptable. Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982)." (Citation omitted; internal quotation marks omitted...