Anderson v. Anderson

• Decision Date: 09 August 1983
• Citation: 191 Conn. 46,463 A.2d 578
• Court: Connecticut Supreme Court
• Parties: Victor G. ANDERSON v. Betty ANDERSON.

Page 578

463 A.2d 578

191 Conn. 46

Victor G. ANDERSON v. Betty ANDERSON.

Supreme Court of Connecticut.

Argued May 11, 1983.

Decided Aug. 9, 1983.

James H. Lee, Fairfield, with whom, on the brief, was Jack L. Grogins, Fairfield, for appellant (defendant).

Wayne D. Effron, Stamford, with whom was Joel M. Kaye, Greenwich, for appellee (plaintiff).

Before PETERS, HEALEY, PARSKEY, SHEA and F. HENNESSY, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is an appeal from the financial orders incident to the judgment dated January 19, 1981, dissolving the eighteen year marriage of the parties and a post-decree supplementary judgment dated December 29, 1981, awarding attorney's fees to the plaintiff, Victor Anderson, to defend this appeal taken by the defendant, Betty Anderson. ¹ We will discuss these matters separately.

The state trial referee's, Hon. Raymond J. Devlin, memorandum of decision, dissolving the marriage and entering the financial orders, discloses, inter alia, the following: The parties were married on July 28, 1962, each having been previously divorced. At the time of the decree the husband was 68 years old and the wife was 57 years old. There are no children involved. The marriage had broken down irretrievably and "the actions and conduct of both contributed equally to the separation" of the parties. At the time of the marriage the plaintiff was the president and chief executive officer of the Victor Anderson 3D Studios engaged in the manufacture of 3D pictures and he owned 99 percent of the stock. At that time the defendant was a "nationally celebrated harpist" having toured the country giving concerts, appearing on radio and television shows and making her own record albums. The family home is located on Dancing Bear Road in the Rowayton section of Norwalk. The plaintiff purchased the land for this home, and supervised and completely paid for the construction of the dwellings on it. ² There was no contribution by the defendant. The plaintiff then conveyed title to the defendant, at which time it was free and clear. Originally, income from the plaintiff's business carried all the expenses of upkeep.

In 1972, the plaintiff suffered a heart attack and the defendant gave up her professional career and assisted in the running of the business, preparing herself by going back to college for the required business courses. ³ When the plaintiff's business started experiencing financial problems, it continued with loans from banks and help from the defendant's relatives. ⁴ The court also found that the defendant "still has proficient skill as a harpist and is in a position to carry on with her music; some of her needs at the present are taken care of by the rental income of the [family home] property; she received $6000 from the sale of the yacht; and apparently from contributions by her family there is the possibility of the future acquisition of capital assets." Because of his health and the subsequent loss of business from his 3D corporation, the plaintiff has been forced to go to work for his brother earning a weekly net income of $262. ⁵ Additionally, the court found that his employability in his given field was "negligible" and that there was no credible evidence as to his opportunity for the future acquisition of capital assets.

In its decree of January 19, 1981, the trial court ordered that the family home "be sold on or before July 1, 1981; that after payment of the mortgage and encumbrances on the property (including the $9797.44 debt owing from the plaintiff to the Union Trust) and the necessary expenses of closing--the net proceeds be divided forty percent to the plaintiff and sixty percent to the defendant." ⁶ It noted that no alimony was awarded to either party. The defendant had sought attorney's fees "amounting to over $6200"; the court denied her claim stating that "[u]nder the facts presented in this case there is no basis for the award of counsel fees." The court's memorandum also stated that it was agreed that the defendant would return to the plaintiff that personal property set out on a list filed by him. Furthermore, the decree set out that it was agreed that both parties were to retain that portion of Victor Anderson 3D Studios, Inc., which they then owned. ⁷

In her appeal the defendant asserts that, in the course of making its financial orders, the trial court made three factual determinations which are not supported by the evidence. The determinations she refers to are: (1) "The plaintiff bought the property (on which the family home is located), supervised and completely paid for the construction of the dwellings and then conveyed title to the defendant. All expenses in the purchase of the property and erection of the dwelling were paid by the plaintiff; there was no contribution by defendant; title was given to her free and clear...." (2) "Defendant at the time [of the marriage] was a nationally celebrated harpist having toured the country giving concerts, appearing on radio and [television] shows and making her own record albums.... Defendant still has proficient skill as a harpist and is in a position to carry on with her music." (3) "Apparently from contributions by [the defendant's] family there is the possibility of the future acquisition of capital assets." In her brief, she argues that she has appealed from the judgment because the financial orders of the trial court were based on these factual determinations which are not supported in the record. We will discuss these claims seriatim.

On her first claim, the defendant asserts that the trial court erred in failing to find that she had contributed to the acquisition, preservation and appreciation in value of the family home. We do not agree. There was evidence that the plaintiff acquired the land in 1961, that he designed and supervised the building of the house there, and that he paid for the land and the building of the house. When the defendant became the owner of the whole title in 1972 ⁸ by a warranty deed from the plaintiff, the property was free and clear. ⁹ The determination that there was no contribution by the defendant is proper, made as it is by the court as of the time the defendant received title in 1972. Her claim that the court failed to find that she contributed to the acquisition, preservation and appreciation in value ¹⁰ is without merit for at least two reasons. First, acceptance of this claim would require this court to find facts that the record discloses the trial court did not. We are not finders of fact; that is for the trial court. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 4, 420 A.2d 1142 (1979); Riccio v. Abate, 176 Conn. 415, 418, 407 A.2d 1005 (1979); Soneco Service, Inc. v. Bella Construction Co., 175 Conn. 299, 300, 397 A.2d 1364 (1978). We, however, do make certain observations. She claims that the court should have concluded that in addition to placing a $60,000 mortgage on the house in 1974, which she ¹¹ contends was used to satisfy the obligations of the business, she alone has made the monthly mortgage payments of $503.52. Because we cannot find facts, we cannot say that the trial court did not also consider that there was evidence that the plaintiff opposed the mortgaging of the house which he had given her free and clear prior to the mortgage. We will not speculate that the trial court did extend credence to her claim because it directed the net proceeds of the sale it had ordered to be divided 60 percent for the defendant as against 40 percent for the plaintiff. In addition, the record is barren of any indication that the defendant ever attempted to seek any further articulation of the factual basis of the trial court's decision in this regard. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222n, 435 A.2d 24 (1980); Practice Book § 3082.

The next factual determination attacked as unsupported by the evidence is: "Defendant at the time [of the marriage] was a nationally celebrated harpist having toured the country giving concerts, appearing on radio and [television] shows and making her own record albums.... Defendant still has proficient skill as a harpist and is in a position to carry on with her music." She does admit in her brief that she majored in music at Goucher College, that she supported herself by working at her music from 1952 to 1962 (a period after her first divorce and prior to the time of her marriage to the plaintiff), that she had appeared on television programs, that she has made three record albums as a soloist with the most recent in the 1960's and that she played one summer with Duke Ellington's orchestra and went on tour with that orchestra for two months. She also maintains that after she married the plaintiff, she never made more than $163 at music in a single year. She admits that she has given lessons on the harp and she is capable of doing so "right now." She also points out that she played the harp at the wedding of Duke Ellington's sister, Ruth Ellington; an examination of the transcript discloses additionally that this occurred in 1980. None of this evidence, she argues, supports the determination that she was "a nationally celebrated harpist," nor that she had "toured the country giving concerts." ¹²

The trial court's memorandum observes that the case was "extensively tried"; our examination of the transcript bears this out. There was before that court from the defendant herself other evidence in this area. This included testimony that while she had made three albums as a soloist she had no idea how many records she played on as a "background musician," as well as testimony of her having made television and radio commercials and having played on Broadway. There was also evidence where she admitted that Ruth Ellington is "always trying to push [my] career."

Whether the defendant "was," as the court stated, "a nationally celebrated harpist" presented a question of fact for the trier. Reasonable minds...