DiVito v. DiVito

• Decision Date: 27 May 2003
• Docket Number: (AC 22445).
• Citation: 77 Conn. App. 124,822 A.2d 294
• Court: Connecticut Court of Appeals
• Parties: JUDY DIVITO v. BRIAN DIVITO.

77 Conn. App. 124

822 A.2d 294

JUDY DIVITO v. BRIAN DIVITO.

(AC 22445).

Appellate Court of Connecticut.

Argued January 6, 2003.

Officially released May 27, 2003.

Foti, Dranginis and Bishop, Js. Robert S. Kolesnik, Jr., for the appellant (defendant).

Arnold M. Potash, with whom, on the brief, was Kenneth M. Potash, for the appellee (plaintiff).

Opinion

DRANGINIS, J.

The defendant, Brian DiVito, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Judy DiVito. On appeal, the defendant claims that the court improperly (1) awarded the plaintiff twice as much equity as the defendant in two parcels of real estate after indicating that it intended to divide the real estate equally between the parties, (2) found that the parties had agreed on the value of the defendant's one-half interest in one parcel of real estate, (3) allowed extensive dialogue by counsel for the parties during the defendant's case, which prevented the defendant from presenting his case and (4) found that the defendant had had an extramarital affair. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's appeal. On September 7, 2000, the plaintiff filed for a dissolution of the marriage on the ground of irretrievable breakdown. A trial was held on September 26, 2001, and on October 11, 2001, the court issued a memorandum of decision in which it rendered judgment dissolving the marriage of the parties on that ground.

In its memorandum of decision, the court also made the following findings of fact. The parties were married in Naugatuck on April 22, 1978. At the time of the dissolution, there were two adult children issue of the marriage, both of whom resided in the marital home with the plaintiff. Prior to the marriage, the plaintiff earned a bachelor's degree from Southern Connecticut State University. She worked as a schoolteacher at the time the parties were married. After the children were born, the plaintiff ceased working full-time and stayed at home to raise the children. When the children went to grade school, the plaintiff became employed for the borough of Naugatuck, where she worked for the next ten years as a full-time director of a child care program. The plaintiff claimed that while she was working in that position, she was subjected to harassment. The harassment was so severe that it ultimately caused her to resign. It also added a great deal of stress to the marriage. For the past two years, the plaintiff has been employed as a director of a child development program at Taft School in Watertown. In 1985, the plaintiff was diagnosed with cancer. She underwent two successful surgeries and has been cancer free since that time. At the time of the dissolution, the plaintiff was in generally good health. The defendant graduated from Central Connecticut State University with a bachelor's degree in business. He has worked at a local bank throughout the marriage and, at the time of dissolution, was the bank manager. The court further found that both parties were responsible for the breakdown of the marriage, but that the defendant's extramarital affair contributed more to the breakdown of the marriage.

Additionally, the court found that the parties had worked equally hard throughout the marriage to acquire the marital assets listed on their respective financial affidavits, including the marital home, which they purchased about one year after they were married. The parties agreed that at the time of dissolution, the market value of the marital home was $165,000 and was encumbered by a mortgage of $62,000 for a net total equity of $103,000. At that time, the defendant also had a one-half interest in his mother's home at 67 Hickory Road in Naugatuck (Hickory Road property). That property had a market value of $130,000 and a mortgage of $26,000. The court found that the parties agreed that the defendant's interest in that property was $52,000.

In the judgment of dissolution, the court issued orders concerning, inter alia, distribution of the marital assets of the parties, including the two parcels of real estate, the marital home and the Hickory Road property. Specifically, the court ordered the defendant to transfer his interest in the marital home to the plaintiff and ordered the plaintiff to hold the defendant harmless from any liability related to that property. Additionally, the court ordered the plaintiff to release any interest she may have had in the Hickory Road property to the defendant.

On October 30, 2001, the defendant filed a motion for reargument, clarification or articulation. In his motion, the defendant first contended that page seven of the court's October 11, 2001 memorandum of decision¹ contemplated an equal division of the total equity in the two parcels of real estate, yet, the court awarded the plaintiff the marital home, which had $103,000 in equity and awarded the defendant the interest in the Hickory Road property, which had only $52,000 in equity. The defendant argued that the court, therefore, must have made a mathematical error in dividing the real estate. Second, he contended that the court improperly valued his one-half interest in the Hickory Road property. Third, the defendant contended that the court improperly determined that he had engaged in an extramarital affair and that the affair contributed more to the breakdown of the marriage than other factors, without first allowing the defendant to be heard on what he believed was the cause of the breakdown of the marriage.

On November 30, 2001, the court heard argument on the defendant's motion for reargument, clarification or articulation. In its January 18, 2002 memorandum of decision on the defendant's motion, the court elaborated on the rationale for its orders. The court explained that it awarded the plaintiff the marital home, not because of a mathematical error, but rather because it accepted the plaintiff's argument in her proposed order that she wanted to continue to live in the marital home with the adult children because it was the only home they had known. The court noted that in coming to the conclusion that it did, it considered all of the relevant criteria set forth in General Statutes § 46b-81, including the length of the marriage, the monetary and nonmonetary contributions of the parties, and the fact that the defendant was more at fault for the breakdown of the marriage than the plaintiff. The court also found that the defendant's interest in the Hickory Road property was $65,000.² Finally, the court reiterated its previous finding that the defendant had been involved in an extramarital affair. The court also noted that it believed the plaintiff's testimony that the affair was the primary cause of the breakdown. This appeal followed. Additional facts will be set forth as necessary for the resolution of the defendant's claims.

I

The defendant first claims that court improperly awarded the plaintiff twice as much equity as it awarded to the defendant in the two parcels of real estate after indicating during the trial that it intended to divide the real estate equally between the parties. In other words, the defendant claims that in its memorandum of decision, the court abused its discretion in awarding the marital home, the equity of which was $103,000, to the plaintiff and awarding the Hickory Road property, the equity of which was $52,000, to the defendant because the court had indicated, during the trial, that it would divide the real estate equally. The defendant further argues that the court's division of the real estate was the result of a mathematical error of the kind that occurred in Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 479 A.2d 826 (1984), and, therefore, requires reversal. Finally, the defendant argues that at the hearing on the motion for reargument, the court admitted that it had made a mistake in awarding the real estate. Those claims are wholly without merit.

As a preliminary matter, we set forth our standard of review. "With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.... [J]udicial review of a trial court's exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . In making those determinations, we allow every reasonable presumption. . . in favor of the correctness of [the trial court's] action." (Citations omitted; internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 530-31, 752 A.2d 978 (1998).

General Statutes § 46b-81 provides in relevant part: "(a) At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . . (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the ... dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." We also note "[i]t is well established that, in a dissolution action, the court may distribute marital property unevenly." Bleuer v. Bleuer, 59 Conn. App. 167, 172, 755 A.2d 946 (2000).

The defendant urges this court to review specific pages of the trial transcript, which he claims supports his argument that the court intended to divide the equity in the real estate...