Garrison v. Garrison

• Decision Date: 24 May 1983
• Citation: 190 Conn. 173,460 A.2d 945
• Parties: Sara B. GARRISON v. Kent E. GARRISON.
• Court: Connecticut Supreme Court

Page 945

460 A.2d 945

190 Conn. 173

Sara B. GARRISON v. Kent E. GARRISON.

Supreme Court of Connecticut.

Argued March 2, 1983.

Decided May 24, 1983.

M. Hatcher Norris, Glastonbury, for appellant (defendant).

Monica L. Harper, with whom, on the brief, was Alan M. Kosloff, Hartford, for appellee (plaintiff).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and GRILLO, JJ.

SPEZIALE, Chief Justice.

This is an appeal from a judgment rendered by the trial court dissolving the marriage of the parties and from certain orders incident to that judgment. The defendant husband claims that the trial court erred: (1) in finding that there was a valid marriage; (2) in awarding a mortgage to the defendant on certain property awarded to the plaintiff payable only if the plaintiff remarried or sold the property; (3) in awarding counsel fees to the plaintiff; (4) in granting the dissolution on the ground of intolerable cruelty; and (5) in ordering, sua sponte, that the court's orders pursuant to the dissolution decree would be effective immediately and would continue in force throughout the pendency of the appeal.

I MARRIAGE

The trial court found, inter alia, the following facts: The parties began to live together in 1974, without the benefit of marriage. When the plaintiff became pregnant in 1976, they decided that they would get married. The decision to marry was prompted by their parents' concern and also by the feeling of both the plaintiff and the defendant that it would be better for their child if they were married.

The parties asked their friend Dr. Sandra McLanahan, who was both a physician and an ordained minister of Paramahamsa Sannyasa of Srimat Sankaracharya, to perform a marriage ceremony for them. They took out a marriage license, had blood tests performed, and participated in a ceremony at the home of the defendant's brother in March of 1976, which many of the parties' relatives and friends attended. During the ceremony the parties exchanged flower garlands and pledged themselves to one another. Following the formal ceremony, the parties had a reception which included the traditional cutting of a wedding cake.

The court specifically found that "[t]he marriage license was signed by the plaintiff, defendant and Dr. McLanahan at the end of the ceremony." The license was then given to the defendant for him to file with the town clerk. It was never filed, and could not be produced at trial. ¹

The defendant claims that the trial court's finding of a valid marriage was clearly erroneous. He does not argue that the mere failure to file the marriage license makes the marriage void. See Carabetta v. Carabetta, 182 Conn. 344, 349, 438 A.2d 109 (1980). He does claim, however, that the failure to file the license is evidence which, when taken with other evidence offered at trial, shows that the parties never intended to be married. He asserts that the marriage was simply a sham.

If neither party had intended to be married, their lack of mutual consent would render the marriage contract void. Davis v. Davis, 119 Conn. 194, 201-203, 175 A. 574 (1934). "The making of a contract does not depend upon the secret intention of a party [however,] but upon the intention manifested by his [or her] words or acts, and on these the other party has a right to proceed." Nutmeg State Machinery Corporation v. Shuford, 129 Conn. 659, 661, 30 A.2d 911 (1943). The trial court found that the To support his claim of error, the defendant outlines testimony which could indicate that the parties did not intend a valid marriage to take place. The only relevant uncontroverted evidence he offers, however, is that the parties did not intend to file the marriage license. The trial court chose not to credit the defendant's other evidence, and found that the plaintiff, at least, did intend to marry. ²

plaintiff intended at all times to enter into a marriage, and that the acts of both parties clearly indicated such an intent.

This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is " 'unsupported by the record, incorrect, or otherwise mistaken.' Kaplan v. Kaplan, [186 Conn. 387, 392, 441 A.2d 629 (1982) ]"; Schaffer v. Schaffer, 187 Conn. 224, 228, 445 A.2d 589 (1982); Practice Book § 3060D. The record in this case demonstrates that there is sufficient evidence to support the trial court's finding that the parties intended to be married when the ceremony was performed, and we cannot find it to be clearly erroneous.

II MORTGAGE

The trial court, pursuant to General Statutes § 46b-81, ³ assigned certain jointly owned real property to the plaintiff, and also required that on that property "[t]he plaintiff shall grant a $25,000.00 non-interest bearing mortgage to the defendant, which mortgage shall become due and payable at such time as the property is sold or the plaintiff remarries, whichever occurs first." The defendant claims that this mortgage is void because it violates the rule against perpetuities.

This claim is without merit. The rule against perpetuities is applicable only if an interest is not vested. Gray, The Rule Against Perpetuities (1886) § 205, p. 145; see Wilbur v. Portland Trust Co., 121 Conn. 535, 537, 186 A. 499 (1936). In a title theory state such as Connecticut, a mortgage is a vested fee simple interest subject to complete defeasance by the timely payment of the mortgage debt. Chappell v. Jardine, 51 Conn. 64, 68-69 (1884). The trial court therefore did not err concerning the mortgage award.

III

COUNSEL FEES

The defendant's next claim is that the court erred by awarding $2500 in counsel fees to the plaintiff when "[t]he defendant's financial affidavit reflected that he had no liquid funds from which to pay an order of counsel fees." "Whether to award counsel fees in matters involving a dissolution of marriage is within the discretion of the trial judge. General Statutes § 46b-62." Weiman v. Weiman, 188 Conn. 232, 236, 449 A.2d 151 (1982). Section 46b-62 states, in relevant part, that "the court may order either spouse to pay the reasonable attorney's fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82." Those criteria include, inter alia, the "occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties ...." General Statutes § 46b-82. The defendant concentrates in his argument solely on the "estate" of the parties, and protests that he does not

                now have "ample liquid funds with which to pay counsel fees." 4  The trial court, which was not [190 Conn. 178] required to mention specifically each of the statutory criteria in making its award;   Scherr v. Scherr, 183 Conn. 366, 368, 439 A.2d 375 (1981);  found that the defendant had failed to account either for approximately $5000 in funds which he received from a post-separation refinancing of the parties' jointly owned real property or for more than $6000 in insurance proceeds from the destruction of a jointly owned trailer.   The court also found that "[t]he defendant has continued with his part-time job ... making no effort to augment his earnings, content to live off the equity of the property."   It is clear that under the criteria of § 46b-82, quoted above, the trial court considered that the defendant's vocational skills, employability, and estate justified the award of counsel fees, despite the apparent lack of liquid assets in his financial affidavit.   Furthermore, "[i]f the court could reasonably have concluded that the [plaintiff's] financial resources, even when supplemented by the financial orders contained in the judgment, were necessary to meet her future needs and therefore were not available to pay counsel fees, there was no abuse of discretion."   Weiman v. Weiman, supra, 188 Conn. 237, 449 A.2d 151.   We find no abuse of discretion in the trial court's award
                

IV INTOLERABLE CRUELTY

We next address the defendant's claim that the trial court erred in granting the dissolution on the ground of intolerable cruelty. "[I]ntolerable cruelty has a subjective as well as an objective significance. There must not only be proof of acts of cruelty on the part of the defendant, but proof that in their cumulative effect upon the plaintiff they are intolerable in the sense of rendering the continuance of the marital relation unbearable by him [or her]." VanGuilder v. VanGuilder, 100 Conn. 1, 3, 122 A. 719 (1923); Gowdy v. Gowdy, 120 Conn. 508, 510, 181 A. 462 (1935); see Taylor v. Taylor, 154 Conn. 340, 342-43, 225 A.2d 196 (1966).

The trial court found that beginning in early 1979 the defendant's "attitude toward both the plaintiff and his children was increasingly one of impatience and indifference.... On two separate occasions during the summer and fall of 1979 plaintiff became ill. She contracted several breast infections after Christopher's birth. She had to call on her mother for help because during these periods the defendant would not take care of the family even though his only work consisted of ... several hours per month .... On two different occasions during this same period the defendant struck the plaintiff in the presence of the children." During the month of February 1980, the defendant openly admitted to having a sexual relationship with a neighbor. In March of 1980 "the defendant ordered the plaintiff to leave the family home and threatened physical harm if she returned." These facts are supported by the testimony of the plaintiff, and are not seriously challenged by the defendant. The fact that the testimony is uncorroborated does not make it insufficient to support a finding of fact if the testimony is believed by the trier. Jarrett v. Jarrett, 151 Conn. 180, 182, 195 A.2d 430 (1963); see Dombrowski v. Dombrowski, 169 Conn. 85, 86, 362 A.2d 907 (1975). The trial court found that the marriage should be dissolved on the basis of the defendant's intolerable cruelty.

The...