McPhee v. McPhee

• Decision Date: 02 February 1982
• Citation: 440 A.2d 274,186 Conn. 167
• Court: Connecticut Supreme Court
• Parties: Donald M. McPHEE v. Carolyn G. McPHEE.

Page 274

440 A.2d 274

186 Conn. 167

Donald M. McPHEE v. Carolyn G. McPHEE.

Supreme Court of Connecticut.

Argued Nov. 13, 1981.

Decided Feb. 2, 1982.

Mary Ellen Wynn, Stamford, for appellant (defendant).

Richard L. Goldblatt, Hamden, for appellee (plaintiff).

Before HEALEY, PARSKEY, ARMENTANO, SHEA and COVELLO, JJ.

ARMENTANO, Associate Justice.

This appeal raises the propriety of a divorce decree awarding to the plaintiff the defendant's one-half interest in their jointly held residence and business property, providing the defendant with terminable alimony, and making certain other awards.

The twenty-three year marriage of the parties was dissolved by decree entered December 17, 1979, upon a finding of irretrievable breakdown. At the time of the trial the defendant wife was forty-one years of age and the plaintiff husband was forty-two years of age. There are three children of the marriage, whose ages at the time of trial were twenty, sixteen and twelve. For many years during the marriage the defendant had a drinking problem and was not employed until after the separation of the parties. At the time of trial she was employed as an accounting clerk and was living in an apartment in Hamden. She testified that she had been rehabilitated from her drinking problem since March, 1979. The plaintiff has been self-employed in the business of selling and installing aluminum siding for twenty-five years.

Each party claimed, among other things, custody of the two minor children and conveyance of the other's one-half interest in the jointly owned residential real estate. The trial court awarded custody of the minor children to the plaintiff, with liberal visitation rights to the defendant. The trial court ordered the conveyance to the plaintiff of the defendant's interest in their jointly owned residential property located at 68 Wright Lane and in their business property at 352 Pine Rock Avenue, both in Hamden. In their financial affidavits the parties made estimates of $61,700 and $72,000 as the value of the equity in the residential property and $45,000 and $35,000 for the equity in the business property. As alimony, the trial court ordered that the plaintiff execute a promissory note payable to the defendant in the principal amount of $13,000, payable at the rate of $50 per week for five years, without interest. Prepayment or accelerated payments were authorized. The trial court also ordered that the alimony award was not modifiable, except that it would terminate upon the defendant's death, remarriage, cohabitation within the parameters of General Statutes § 46b-86(b), ¹ or hospitalization due to her voluntary resumption of the cause of her past illness. Joint and individual savings accounts totaling $10,978.13 were awarded to the defendant. Finally, bonds totaling $837.50 were placed in the control of the plaintiff for the education of their children.

In her appeal from the dissolution decree the defendant claims that the trial court erred in applying the statutory criteria for property division, in basing its findings upon unreasonable interpretations of the facts, in setting the contingencies for alimony termination, and in otherwise penalizing the defendant for her prior illness.

The purpose of property division "is to unscramble the ownership of property, giving to each spouse what is equitably his." Clark, Domestic Relations, p. 450 (1968); see Smith v. Smith, --- Conn. ---, --- A.2d ---- (43 Conn.L.J., No. 20, pp. 7, 8) (1981); Pasquariello v. Pasquariello, 168 Conn. 579, 583-85, 362 A.2d 835 (1975). At the time of entering a decree dissolving a marriage, the trial court may assign to either party all or any part of the estate of the other and may order either to pay alimony to the other. General Statutes §§ 46b-81(a); ² 46b-82. ³ In fixing the nature and value of the property assigned, and in determining whether alimony shall be awarded, and the duration and amount of the award, the court "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" and needs of each of the parties. General Statutes §§ 46b-81(c), 46b-82. With respect to property assignment the trial court must also consider the liabilities of the parties, "the opportunity of each for future acquisition of capital assets and income ... (and) the contribution of each of the parties in the acquisition, preservation or appreciation in the value of their respective estates." General Statutes § 46b-81(c).

In its memorandum of decision the trial court expressly followed the guidelines set forth in General Statutes § 46b-81(c) and made abbreviated findings on the length of the marriage, the cause for dissolution, the ages of the parties, their health, station, occupation, amount and sources of income, vocational skills, employability, estates, liabilities, needs and opportunities. The trial court stated particularly that "(t)he final factor and most important that the court must consider is the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." The defendant claims that the court's giving preeminence of this factor over the other statutory criteria was a misapplication of the law. We agree that the statute gives no priority to any single criterion in determining a property division. See Venuti v. Venuti, --- Conn. ---, --- A.2d ---- (43 Conn.L.J., No. 5, pp. 17, 18) (1981); Gallo v. Gallo, --- Conn. ---, --- A.2d ---- (42 Conn.L.J., No. 45, pp. 3, 8) (1981); Leveston v. Leveston, --- Conn. ---, 437 A.2d 819 (42 Conn.L.J., No. 6, pp. 9, 10) (1980); Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980). The trial court's characterization of this factor as the "most important" may reasonably be construed not as a disregard of this principle, but as indicating that, under its analysis of the evidence, there was a significant difference in the respective contributions of the parties to the acquisition of their property as compared to the small differences between them with respect to the other statutory criteria considered. The trial court's interpretation of the evidence, however, lends color to the defendant's claim that the finding of the trial court concerning the amount of their respective contributions was unreasonable, because any such error must be regarded as having had a prejudicial impact upon the judgment.

The trial court found that the acquisition of the jointly owned residential property at 68 Wright Lane and business property at 352 Pine Rock Avenue, Hamden, resulted primarily from the plaintiff's contributions. In support of its conclusion the trial court noted that the plaintiff's share of the net proceeds from the sale of "one of the properties" constituted the contribution in the acquisition of the two parcels of real property held jointly by the parties. "(W)here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); see Practice Book § 3060D. Examination of the trial transcript reveals that these findings are not reasonably supported by the evidence.

The plaintiff's uncontroverted testimony was that after the sale of their first residence in 1966 or 1967 the parties had $30,000 cash on hand. Each party testified initially that the defendant retained $10,000-12,000 from the sale of this starter residence, and the plaintiff testified that he contributed the entire purchase price for their second residence at 68 Wright Lane, Hamden, because his wife was never employed. Upon cross-examination the plaintiff corrected his testimony. He stated that the $30,000 joint funds held after the sale of their first residence was put to two uses. Their second residence was purchased with $15,000 of the joint funds, plus a $17,000 mortgage. The parties invested the remaining $15,000 in jointly held investment property. This investment property was later sold and the estimated $20,000 profit realized from the sale was divided between the parties. The business property was purchased with the return of the $15,000 joint funds expended to purchase the investment property. If we trace the disposition of the joint funds from the sale of the first residence through the subsequent purchase of the second residence, the investment property and the business property, we can only reasonably conclude that both the second residence and the business property were acquired by equal contributions of the parties, in contradiction to the finding of the trial court.

The defendant claims further that the trial court's factual findings of the parties' relative incomes, vocational skills, employability and opportunities were unreasonable. Without stating the factual basis for its findings, the court found that the amount and sources of income were "nominal in each case-depends on continued working," their employability was "equal," their vocational skills were "not exceptional," and their opportunities were "difficult to predict-health important." At the time of trial the defendant had recently begun an entry level clerical position from which she netted $146.46 weekly. In obvious contrast to her circumstances, the plaintiff had been employed as an aluminum siding contractor for twenty-five years and earned $394.10 weekly from his employment and interest income. Because of the vagueness of the court's findings with respect to vocational skills and opportunities for future acquisition of capital assets we hold them to be reasonably supported by the evidence. The court's finding the amounts and sources of income as "nominal in...