Ippolito v. Ippolito
| Decision Date | 13 October 1992 |
| Docket Number | No. 10348,10348 |
| Citation | 28 Conn.App. 745,612 A.2d 131 |
| Court | Connecticut Court of Appeals |
| Parties | Ellen Ann IPPOLITO v. Raymond Joseph IPPOLITO. |
Gary I. Cohen, with whom, on the brief, was Alan S. Rubenstein, New Haven, for appellant (plaintiff).
Richard L. Goldblatt, Hamden, for appellee (defendant).
Before DALY, LANDAU and HEIMAN, JJ.
In this appeal from the judgment in a marital dissolution action, the plaintiff, Ellen Ippolito, claims that (1) the state trial referee's judgment was not rendered within 120 days in violation of General Statutes § 51-183b, (2) the award of time limited alimony was inconsistent with the factual findings made by the referee, and (3) the state trial referee improperly applied the statutory criteria for awarding alimony and property by focusing on the relative fault of the parties toward the breakdown of the marriage.
The following facts are relevant to this appeal. The plaintiff and the defendant were married in June, 1969. At that time, the defendant began medical school. The plaintiff assisted the defendant during his education and was the primary caretaker for their children. The parties endured financial hardships during the early years of their marriage while the defendant spent long hours studying and preparing to become a doctor. In 1978, the defendant entered into private practice as a surgeon and the parties' financial condition greatly improved. The defendant opened his own office with the assistance of the plaintiff.
In 1978, the parties bought a house in Hamden. The defendant paid for all of the financing and expenses related to the house. At the plaintiff's suggestion, the defendant spent approximately $70,000 to open a gym. The plaintiff handled the daily operations of the gym and the defendant took care of the finances and expenses related to the gym's operation. The gym later went out of business.
The state trial referee found that the plaintiff engaged in two extramarital affairs during the course of the parties' marriage. He noted that the defendant's inattention toward the plaintiff also contributed to the breakdown of the marriage. The state trial referee concluded that "while both [parties] contributed to the breakdown, the major contributor was the plaintiff."
The state trial referee ordered the defendant to pay $100,000 lump sum alimony and $850 per week as periodic alimony for a period of ten years which was non-modifiable as to duration. The lump sum alimony order was to assist the plaintiff in paying the mortgage and related expenses of the marital residence until it was sold within two years after judgment. The plaintiff retained sole possession of the marital residence. The state trial referee ordered that the plaintiff would receive 65 percent of the net proceeds of the sale of the marital residence with the defendant receiving the other 35 percent. The plaintiff was liable for any expenses related to the upkeep of the marital residence.
The plaintiff claims that the state trial referee's decision was issued more than 120 days after the completion of the trial thereby violating General Statutes § 51-183b. We disagree.
The following additional facts are relevant to this claim. On December 14, 1990, at the close of evidence, the trial referee and counsel for both parties discussed the filing of briefs in this matter. 1 The referee noted that if either counsel sought to file a reply brief and notified opposing counsel, he would allow "both sides an opportunity to file reply briefs." On December 18, 1990, the referee, after setting a date for the filing of briefs, stated that only one memorandum of law should be filed by the parties. On January 23, 1991, the plaintiff filed her brief and the defendant filed his brief the next day. On January 29, 1991, the defendant filed a reply brief. On May 29, 1991, the state trial referee issued his memorandum of decision.
On June 18, 1991, the plaintiff filed motions to vacate the judgment and for a new trial. The plaintiff argued that the completion date of the trial was January 24, 1991. The state trial referee's decision was issued more than 120 days after that date and was void according to General Statutes § 51-183b. The plaintiff's motion was argued before the trial court, DeMayo, J. On July 31, 1991, the trial court denied the plaintiff's motion to vacate the state trial referee's decision. The court found that January 29, 1991, the date of the defendant's reply brief, constituted the completion date of the trial. The court reasoned that because the plaintiff never objected to the filing of the defendant's reply brief and the state trial referee did not return the defendant's reply brief, it was utilized by the state trial referee in his decision making. The decision was issued on May 29, which was 120 days from the completion date, and did not violate § 51-183b. The trial court further found that because the plaintiff did not move to vacate the judgment until June 17, 1991, her objection to the timeliness of the judgment was "unseasonable." Because of the plaintiff's unseasonable objection, the trial court found that she impliedly consented to the alleged late judgment.
General Statutes § 51-183b 2 provides that the trial court's judgment in a civil nonjury case shall be rendered "not later than one hundred and twenty days from the completion date of the trial." In Frank v. Streeter, 192 Conn. 601, 472 A.2d 1281 (1984), our Supreme Court held that the "completion date" of § 51-183b encompasses the filing of briefs after the conclusion of testimony. The Supreme Court reasoned that this interpretation was necessary in order to provide the trial court with "the opportunity to deliberate and to reach a thoughtful, reasoned conclusion." Id. at 605, 472 A.2d 1281.
On the basis of our review, we conclude that the trial court properly found that the completion date of this trial was January 29, 1991, the date on which the defendant filed his reply brief. The state trial referee did give inconsistent statements as to his position on the filing of reply briefs. The fact that the state trial referee did not return the reply brief or notify the parties that he would not accept the reply brief indicates that he considered it part of the posttrial briefing process. The state trial referee noted that in dissolution matters he would accept reply briefs from both parties if the opposing counsel was notified. The plaintiff does not claim that she was not notified of the filing of the defendant's reply brief. The plaintiff also did not file an objection to or a motion to strike the reply brief before the decision was rendered. These facts establish that the completion date was January 29, and that the decision rendered on May 29 did not violate § 51-183b. In light of this conclusion, we need not decide whether the trial court properly found that the plaintiff's motion to vacate the judgment was an unseasonable objection that constituted a waiver of her right to challenge the judgment as violating § 51-183b.
The plaintiff next challenges the state trial referee's award of time limited alimony. The plaintiff argues that the referee failed to give any explanation or rationale for his award of time limited alimony and that the facts found by the referee do not support an award of time limited alimony. We agree.
The referee noted in his decision that he examined and considered all relevant statutory provisions. During the parties' twenty-one year marriage, the defendant made all of the financial contributions to the family while the plaintiff maintained the home and cared for the children. The referee found that the plaintiff had no special educational background or special skills. The plaintiff had not worked outside of the home during the marriage, except for a short time as a cashier and for several years as an instructor at a body building gym. The state trial referee found that the plaintiff "has been entirely dependent upon her husband for all expenses incurred, for the family and for herself personally."
Our review Louney v. Louney, 13 Conn.App. 270, 273, 535 A.2d 1318 (1988). The trial court must consider all relevant statutory criteria in a marital dissolution action but it does not have to make express findings as to the applicability of each criteria. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). The trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982).
This court has dealt with challenges to an award of time limited alimony on numerous occasions. Wolfburg v. Wolfburg, 27 Conn.App. 396, 606 A.2d 48 (1992); Henin v. Henin, 26 Conn.App. 386, 601 A.2d 550 (1992); Watson v. Watson, 20 Conn.App. 551, 568 A.2d 1044 (1990); Roach v. Roach, 20 Conn.App. 500, 568 A.2d 1037 (1990). The trial court does not have to make a detailed finding justifying its award of time limited alimony. See Markarian v. Markarian, 2 Conn.App. 14, 17 n. 2, 475 A.2d 337...
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