Passamano v. Passamano

• Decision Date: 07 December 1993
• Docket Number: No. 14622,14622
• Citation: 228 Conn. 85,634 A.2d 891
• Court: Connecticut Supreme Court
• Parties: Diane PASSAMANO v. Salvatore J. PASSAMANO.

Page 891

634 A.2d 891

228 Conn. 85

Diane PASSAMANO v. Salvatore J. PASSAMANO.

No. 14622.

Supreme Court of Connecticut.

Argued Sept. 28, 1993.

Decided Dec. 7, 1993.

Lynda B. Munro, Essex, with whom was Lisa A. Faccadio, Middletown, for appellant (plaintiff).

Charles J. Irving, New London, for appellee (defendant).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

BERDON, Associate Justice.

The sole issue in this appeal is whether, under the circumstances of this case, an order that the former spouse pay mortgage and real estate taxes on the marital home, which home is to be sold when the youngest child reaches eighteen and the proceeds divided between the parties, constitutes a judicially modifiable order of alimony rather than an assignment of property. We determine that it does not.

In 1984, the trial court, Budney, J., dissolved the seventeen year marriage of the plaintiff, Diane Passamano, and the defendant, Salvatore Passamano. At the time of the dissolution there were two children, ages eleven and thirteen years, issue of the marriage. The parties jointly owned the marital home, subject to a first mortgage that secured a note upon which they were jointly liable. The parties stipulated to the terms of the dissolution, and the terms were incorporated into the decree. The decree included provisions for child custody, visitation and support, and assignment of property. The decree also awarded the plaintiff possession of the home until the youngest child reached the age of eighteen, at which time the home was to be sold and the proceeds divided equally between the parties. The defendant was required to pay monthly mortgage installments and real estate taxes on the home during this period of time. The plaintiff was required to maintain and pay for homeowner's insurance. The decree specifically provided that any amount of the monthly mortgage installments and real estate taxes that the defendant failed to pay would be deducted from the defendant's share of the proceeds from the sale of the house. Finally, the parties were prohibited from encumbering the property further, absent court approval. The decree contained no provision for alimony, as the plaintiff had expressly waived alimony on the record.

On December 7, 1990, the youngest child of the parties reached the age of eighteen. For reasons undisclosed in the record, however, the plaintiff and the defendant did not undertake to sell the home at that time. The plaintiff continued to live in the home, and to fulfill her responsibilities under the decree. The defendant continued to make mortgage and tax payments.

On July 30, 1991, the defendant filed a "motion to re-open and modify judgment," claiming a "substantial change of circumstances" in that the children had reached the age of majority. The defendant sought an order that the trial court open the decree and terminate his obligation to pay the mortgage installments and real estate taxes.

The defendant argued before the trial court, Arena, J., that the obligation to pay the mortgage and taxes was an order of child support pursuant to General Statutes § 46b-84 ¹ and therefore, the children having reached age eighteen, the obligation was terminated. ² He did not raise before the trial court, or even suggest, that this obligation constituted alimony. The trial court denied the motion, holding that the obligation to pay the mortgage and taxes constituted part of the assignment of marital property pursuant to General Statutes § 46b-81, ³ and was therefore not modifiable. ⁴

The defendant appealed to the Appellate Court. The Appellate Court reversed, concluding that the trial court incorrectly characterized the obligation to pay the monthly mortgage installments and taxes as an assignment of marital property because this obligation constituted an order of periodic alimony pursuant to General Statutes § 46b-82. ⁵ Passamano v. Passamano, 28 Conn.App. 854, 612 A.2d 141 (1992). ⁶ We granted the plaintiff's petition for certification on the following issue: "Under the circumstances of this case, did the Appellate Court improperly conclude that the order that the defendant pay the mortgage and taxes on the marital home was modifiable as an order of alimony?" Passamano v. Passamano, 224 Conn. 904, 615 A.2d 1047 (1992).

We agree with the plaintiff that the Appellate Court was not correct in holding that the order obligating the defendant to make mortgage and tax payments on the marital home constituted alimony. The plaintiff clearly and unequivocally waived any claim to alimony. At the time that it entered the decree, the trial court canvassed the plaintiff, explaining that her waiver of alimony was permanent and binding. ⁷ After a colloquy between the trial court and the plaintiff, in which the plaintiff indicated that she was not seeking alimony, the trial court stated the following: "[T]his is an important day for you, which I think you realize. If the court doesn't order alimony today, which is support for you in effect ... you will never be able to obtain any alimony in the future. In effect, when you waive alimony today that's it. You will never be able to get alimony from this court or any court. And that is support for yourself. Do you understand that?" The plaintiff answered "yes" on the record. The trial court accepted her express waiver. In determining the nature of the award, the characterization made by the trial court is controlling. Dubicki v. Dubicki, 186 Conn. 709, 715, 443 A.2d 1268 (1982). In view of the plaintiff's unmistakable waiver of her right to alimony and the absence of an alimony award in the stipulation or decree, the Appellate Court was mistaken in holding that the mortgage and real estate tax payments constituted an award of alimony. ⁸

The question that remains is whether the trial court correctly characterized the obligation to make these payments as a nonmodifiable assignment of property, rather than an order of child support. Although the decree does not expressly label the obligation at issue, an analysis of the decree clearly indicates that the order to pay the mortgage installments and taxes was intended by the trial court to constitute a division of property pursuant to § 46b-81. When the decree is silent as to the characterization of an order, an analysis of the structure of the dissolution decree is highly instructive; Blake v. Blake, 211 Conn. 485, 497, 560 A.2d 396 (1989); and an ambiguous order should be examined in the context of the entire decree. Viglione v. Viglione, 171 Conn. 213, 216, 368 A.2d 202 (1976). These rules must be viewed against the well recognized principle that because every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances. Lane v. Lane, 187 Conn. 144, 147, 444 A.2d 1377 (1982); Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975).

The organization of the decree in this matter strongly supports the conclusion that the trial court intended the mortgage and tax payments to be part of the assignment of the property. After the judgment file provides for child support, it further, in a separate paragraph, orders the sale of the marital home and the division of the proceeds between the parties when the youngest child reaches eighteen. ⁹ The placement of the order to make mortgage and tax payments in the same paragraph as the order to sell the marital home and divide the proceeds is strong evidence that these obligations were intended to constitute an assignment of property. Cf. Viglione v. Viglione, supra, 171 Conn. at 217, 368 A.2d 202 ("[i]f the state referee intended that the duty to pay [real estate] taxes be treated as child support, it is most unlikely that he would have imposed that obligation by the use of the same clause which sets forth an obligation which is clearly alimony without specifically designating the tax payments as being for the support of the children"). Further evidence that the order to pay mortgage installments and taxes is an assignment of property is found in the provision of the decree that provides that if the defendant fails to pay them, "they shall be deducted from his share of the equity upon sale of the premises to a third party or to the wife."

The defendant argues, however, that the order to pay future monthly mortgage installments and taxes is an order to pay debts that will accrue after the date of the dissolution decree, and as such is contrary to our well established case law defining the scope of assignable property under § 46b-81. Eslami v. Eslami, 218 Conn. 801, 806-808, 591 A.2d 411 (1991); Rubin v. Rubin, 204 Conn. 224, 228-32, 527 A.2d 1184 (1987). Rubin and its progeny do not involve, however, the assignment of a present property interest and how the assignment can be structured. In Rubin, we held that § 46b-81 does not authorize the distribution of a contingent one-third share of any assets that the husband might acquire through a future inheritance upon his mother's death. Rubin stands for the proposition that the mere possibility of a future interest is not assignable as a property interest under § 46b-81. The present case, however, involves an obligation of a different nature than the mere expectation of an inheritance at issue in Rubin.

The order to make mortgage and tax payments in the present case, together with the order that the plaintiff maintain and pay for homeowner's insurance, constitute a structure for the division of an asset of the parties, the marital home. The trial court's interpretation of the dissolution decree in the present case was consistent with several basic principles. First, § 46b-81 grants jurisdiction to order one party to assume the joint liabilities of the parties. Beede v. Beede, 186 Conn. 191, 196-97, 440 A.2d 283 (1982); Clement v. Clement, 27 Conn.App. 364, 369, 606 A.2d 36 (1992) (upholding the assignment of a mortgage...