Carpenter v. Carpenter

Decision Date28 December 1982
Citation188 Conn. 736,453 A.2d 1151
CourtConnecticut Supreme Court
PartiesDonald M. CARPENTER v. Priscilla CARPENTER.

Stephen F. McEleney, Hartford, for appellant (defendant).

William C. Kroll, Glastonbury, for appellee (plaintiff).

Before SPEZIALE, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ.

GRILLO, Associate Justice.

This appeal from the judgment rendered in a marital dissolution action raises the following procedural and substantive issues: (1) whether, pursuant to Practice Book § 3060B, the trial court's memorandum of decision was adequate; (2) whether the trial court failed to consider the criteria set forth in General Statutes §§ 46b-81 and 46b-82; (3) whether the trial court's decision was arbitrary and in abuse of its discretion; and (4) whether the trial court erred in excluding evidence, in the form of an employment contract, of the plaintiff's future wages for the next two years. 1

The plaintiff, Donald Carpenter, instituted the present action in July, 1979, seeking dissolution of his twenty-one year marriage to the defendant, Priscilla Carpenter, as well as one-half of the equity in jointly held real property. The defendant subsequently filed a cross complaint, alleging adultery by the plaintiff and seeking, inter alia, custody, support, alimony, and title to all real property. After a pendente lite order granting the defendant $190 per week of unallocated alimony and support, the case proceeded to a hearing on July 17, 1980, before the Hon. Simon S. Cohen, a state trial referee, sitting as the trial court. At the time of the hearing the parties had one minor child who was six months shy of her eighteenth birthday. Immediately after the trial, which lasted approximately one and one-half hours, the court rendered an oral decision by which it dissolved the marriage and granted custody of the minor child to the defendant. The referee further awarded the defendant alimony and support of $190 per week until the minor child reached age eighteen, and thereafter alimony of $110 per week until July 17, 1983, when the family residence is to be sold and the proceeds evenly divided between the parties. Until that date the defendant has exclusive possession of the residence, and all personal property therein was ordered to become the property of the defendant.

On August 22, 1980, the court issued its written memorandum of decision, which repeated the previous oral orders without delineating the factual basis or statutory criteria which determined the judgment. The defendant thereafter filed a motion for rectification of appeal pursuant to Practice Book § 3082, seeking clarification of the factual and legal grounds relied upon by the trial court. In its memorandum on the motion for rectification the trial court stated that in making the awards it considered the following evidence: (1) the length of the marriage; (2) the finding that the parties were equally at fault for the irretrievable breakdown; and (3) the ages, health, occupation and income of the parties, and the future employability and needs of the parties.

The defendant first attacks the sufficiency of the trial court's memorandum of decision and memorandum on the motion for rectification pursuant to Practice Book § 3060B, arguing that the brevity and absence of specific factual findings which characterize those memoranda effectively preclude appellate review. Although the trial court did not delineate the factual basis for its awards, 2 given the transcript, financial affidavits and other parts of the record available to us, the memoranda are sufficient to review the trial court's exercise of discretion. Hall v. Hall, 186 Conn. 118, 124, 439 A.2d 447 (1982). "This is so, in part, because of the limited review to which trial court determinations are subject in domestic relations cases"; Scherr v. Scherr, 183 Conn. ---, (42 CLJ 40, p. 3) 439 A.2d 375 (1981); and in part from our recognition that domestic relations cases often require factual conclusions concerning sensitive yet bitter conflicts between the litigants which are better left shielded from the parties and the public in order to preserve privacy and promote tranquil relations. Scherr v. Scherr, supra, --- n. 1, 439 A.2d 375. The memoranda, viewed collectively, therefore meet the minimum requirements of reviewability. 3 The defendant next assigns as error the failure of the trial court to consider the statutory criteria for property division and alimony pursuant to General Statutes §§ 46b-81 and 46b-82 respectively. 4 "The court is not obligated to make an express finding on each of [the] statutory criteria." Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). A ritualistic rendition of each and every statutory element would serve no useful purpose. While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case. Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980).

Given these guidelines, we cannot conclude that the trial court misapplied the law. In its memorandum on the motion to rectify the appeal, the court stated that it considered the length of the marriage, the causes of the separation, the ages, health, occupation, income and future employability of the parties, and the parties' respective needs. The defendant admits that evidence concerning each statutory criterion was submitted to the court. While the defendant makes a broadside attack based upon the statutory elements not specifically noted by the court, consideration of occupation, income, future employability and needs of the parties implicitly requires consideration of vocational skills and the future ability to acquire capital assets, the two principal items which the defendant claims were ignored by the court. The trial court properly considered the statutory requirements of General Statutes §§ 46b-81 and 46b-82.

The defendant makes the additional claim that the referee's awards were arbitrary and in abuse of his discretion. Concerning this claim it is paramount to underscore, once again, the scope of appellate review in a domestic relations dispute. The conclusions which we might reach, were we sitting as the trial court, are irrelevant. Gallo v. Gallo, 184 Conn. ---, ---, (42 CLJ 45, pp. 3, 6) 440 A.2d 782 (1981); Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980). 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. Fucci v. Fucci, 179 Conn. 174, 183, 425 A.2d 592 (1979). Such an excursion by this court into the domain of the trier is unacceptable. Schaffer v. Schaffer, 187 Conn. 224, 227, 445 A.2d 589 (1982). On appellate review, the ultimate issue is whether the court could reasonably conclude as it did. Koizim v. Koizim, supra, 181 Conn. 497, 435 A.2d 1030.

The defendant first attacks the trial court's conclusion that the parties were equally at fault for the irretrievable breakdown of the marriage. Although there was a cross complaint alleging adultery, and there was evidence designed to show the plaintiff committed adultery, the plaintiff vehemently denied unfaithfulness and the court made no such finding. Moreover, the plaintiff testified that the defendant was argumentative, constantly woke him up at night, repeatedly locked him out of their residence, and continually threatened him with divorce proceedings. The trial court's focus was not to equate the conduct of the parties, but instead to determine whether the conduct of the parties contributed to the irretrievable breakdown of the marriage. In this sense, the court could have reasonably concluded that the parties were equally at fault for the breakdown of the marriage.

The gravamen of the defendant's argument concerning an abuse of judicial discretion centers upon the financial awards ordered by the court. The trial court is accorded wide discretion in allocating property and in setting the amount and type of alimony. Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975). She points to the twenty-one year marriage, the disparity in gross income, the employability of the parties and the plaintiff's retirement benefits in characterizing the court's orders as arbitrary and an abuse of discretion.

These factors, which weigh in favor of a more substantial financial award to the defendant, are nevertheless offset by other evidence introduced before the court. A review of the transcript indicates that the defendant occupied a position as an inspector at a factory before and during the marriage, leaving this position for the last time twelve years prior to the dissolution to raise the children. She has subsequently worked as a cook, and although at the time of the dissolution she was earning only $77 per week as a cocktail waitress, she received this amount working only two or three nights a week. While the defendant indicated a desire not to work because of her age, 5 forty-nine years, nothing in the record before us reveals any reason why she could not resume work on a full-time basis. Further, although 1979 was a financially successful year for the plaintiff, his testimony revealed that he had recently been laid off for three weeks, during which his income was reduced to $144 per week of unemployment compensation.

The defendant's mortgage and tax payment amounts to $212 per month, more than adequately covered by her alimony award until the home is sold. At the date of the sale, the parties' youngest child will be six months shy of her twenty-first birthday. 6 Moreover, the parties' only substantial asset, their residence, will be equitably divided between them. 7 This is not a case...

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2 books & journal articles
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