Rostain v. Rostain

• Decision Date: 13 February 1990
• Docket Number: No. 13697,13697
• Citation: 213 Conn. 686,569 A.2d 1126
• Court: Connecticut Supreme Court
• Parties: Jacques ROSTAIN v. Hana ROSTAIN.

Page 1126

569 A.2d 1126

213 Conn. 686

Jacques ROSTAIN v. Hana ROSTAIN.

No. 13697.

Supreme Court of Connecticut.

Argued Nov. 9, 1989.

Decided Feb. 13, 1990.

Robert M. Wechsler, Stamford, with whom, on the brief, was Michael Jon Barbarula, Norwalk, for appellant (defendant).

Michael A. Meyers, with whom, on the brief, was Patricia C. Reath, Bridgeport, for appellee (plaintiff).

Before ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is an appeal from certain orders concerning the judgment by the trial court, Bassick, J., dissolving of the parties' marriage. The defendant wife contends, inter alia, that the trial court erred in (1) finding certain facts concerning the distribution of property, both real and personal, ¹ and (2) refusing to award her periodic alimony pursuant to General Statutes § 46b-82. ² Because we remand this case for further articulation of the court's factual findings, we do not need to address the defendant's other claims of error.

The parties were first married in 1958. As a result of this marriage, the parties had two children. This marriage was terminated by a Mexican divorce on April 14, 1966. The parties, however, remarried on December 18, 1968. At the time of the parties' first divorce, they had no assets other than a rent controlled apartment in New York City which had been awarded to the defendant by the Mexican decree.

The plaintiff husband instituted an action to dissolve the second marriage on December 15, 1986. The defendant wife filed a cross complaint seeking a dissolution, alimony, equitable distribution and other relief. The case proceeded to trial on June 14, 1988, and occupied approximately five days. Both parties testified at the trial. On September 14, 1988, the trial court, Bassick, J., filed an extensive and complex memorandum of decision that sets forth its findings of fact concerning the parties' personal and financial status, as well as the court's orders of property distribution. The court specifically found that neither party was at fault for the breakdown of the marriage and also concluded that no periodic alimony was to be awarded to either party. According to the financial affidavits of the parties, the trial court was presented with crafting its orders in the context of net assets totaling approximately two million dollars. On September 23, 1988, the defendant moved to open and vacate the judgment and for reargument. The trial court, Thim, J., denied the defendant's motion, and from that denial, as well as from the original judgment, the defendant appealed to the Appellate Court. ³ Pursuant to Practice Book § 4023, we transferred the case to this court.

The defendant contends that certain factual findings by the trial court are not supported by the evidence. In particular, the defendant claims that the trial court's finding that a condominium and dock in Stamford were "inherited, gifted or acquired with inherited funds by the plaintiff" was clearly erroneous. The trial court found that this asset had a value of $300,000. The defendant asserts that only one half of the condominium and dock was purchased with funds inherited by the plaintiff and that the other half was purchased with funds accumulated during their marriage.

General Statutes § 46b-81 ⁴ confers broad powers upon the trial court in the assignment of property in a dissolution action. It provides in part that the court "may assign to either the husband or wife all or any part of the estate of the other." General Statutes § 46b-81(a). Among the factors to be considered in any order entered under § 46b-81 is the "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." General Statutes § 46b-81(c). Moreover, we have held that the trial court, in a dissolution action, has wide discretion in assigning the property to be transferred. iSchmidt v. Schmidt, 180 Conn. 184, 192, 429 A.2d 470 (1980); LaBella v. LaBella, 134 Conn. 312, 317-18, 57 A.2d 627 (1948). In the present case, the trial court found that "[t]he following assets were inherited, gifted or acquired with inherited funds by the plaintiff: Limited partnership interest--590 West End Avenue, New York City, New York, $160,000.00; Punta Del Este, Uruguay--$65,000.00; Condominium, Stamford, Ct. and dock--$300,000; Cie de Banque, Geneva, Switzerland--$121,835.00; Certain antiques, furnishings and paintings." The trial court, however, did not articulate any basis in fact for its findings nor did the defendant file a motion for articulation of the trial court's decision pursuant to Practice Book § 4051. After a careful review of the record, we are uncertain whether the trial court found that the condominium and dock were entirely or partly "inherited, gifted or acquired with inherited funds by the plaintiff." Depending on how that question is resolved, a further question then arises as to the effect of that finding on the court's overall property distribution. It is apparent that articulation by the trial court is necessary.

Fairness requires that we set out the considerations, evident to this court from the record, that create that lack of clarity for which we order a further articulation. In doing so, we point out, as we have in the past in domestic relations cases, that we cannot retry the case. See, e.g., Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986); Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982); Yontef v. Yontef, 185 Conn. 275, 278-79, 440 A.2d 899 (1981); Lucy v. Lucy, 183 Conn. 230, 232-33, 439 A.2d 302 (1981); Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980). As the defendant points out, the plaintiff's own "Claims for Relief" clearly state that only one half of the purchase price of the condominium and dock, i.e., $150,000, was paid with inherited funds. ⁵ In further support of her claim, the defendant refers to the following evidence: The plaintiff testified that one half of the money paid for the condominium came from a Swiss bank account and the other half came from his account at Chemical Bank in New York; the plaintiff inherited from his father in 1979 a Swiss bank account valued at approximately $220,000; and the account, at its peak, increased to approximately $350,000. The plaintiff further testified, the defendant continues, that he withdrew from that account $65,000 for property in Uruguay, $125,000 for taxes, $150,000 to pay for the condominium, and $5000 for expenses. These withdrawals total $345,000. She maintains that he also testified that he never added any of his own funds to the account. Thus, the defendant claims that the evidence supports a finding that only $150,000 of the purchase price of the Stamford condominium and dock was paid for by the plaintiff with inherited funds.

The defendant further claims that the balance, i.e., $150,000, of "the condominium purchase came from the Chemical account by liquidation of stocks and bonds that were not inherited, but were accumulated during the marriage." The defendant asserts that evidence that the balance of the funds for the purchase of the Stamford condominium and dock, i.e., $150,000, was accumulated during the marriage is found in the plaintiff's testimony that at the time of the parties' remarriage in 1968, he had no assets, he earned a large income from 1968 through 1981, he received a large severance payment from his former employer in 1981, and he inherited (besides personal property such as antiques, furnishings and gold coins) only the Swiss bank account from his father. In addition, it should be noted that although the defendant testified at the trial, she offered no testimony that her income in any way contributed to the acquisition of the Stamford condominium and dock.

On the other hand, the plaintiff contends that the defendant misstates the trial court's finding by claiming that it said that the condominium and dock were acquired "entirely" with funds inherited from his father. The plaintiff asserts, rather, that the court was correct in finding that the condominium and dock were acquired with inherited funds. The plaintiff also points out that he testified that he purchased one half ($150,000) of the condominium with funds from the Swiss bank account inherited from his father. Therefore, the plaintiff contends, since the court did not find, as the defendant maintains, that the condominium and dock were acquired "entirely" with inherited funds, there was no error in this finding.

Alternatively, the plaintiff argues that it would have been reasonable for the court to conclude on the evidence that the property was purchased entirely with inherited funds. His argument proceeds as follows. The plaintiff testified that he transferred his stocks and bonds account from Merrill Lynch to Chemical Securities, a special department of Chemical Bank. The plaintiff asserts that, although there was no testimony introduced concerning the source of funds for the Merrill Lynch account, the trial court could have made a reasonable inference from the evidence presented that it was established with the proceeds from the sale of one half of the plaintiff's interest in the New York real estate partnership that was inherited from his mother. In 1973, the plaintiff inherited from his mother's estate an interest in a limited partnership at 590 West End Avenue, New York, New York. In 1979, using funds inherited from his father, the plaintiff purchased an additional interest in the real estate partnership. The plaintiff subsequently sold one half of his interest in 1983, realizing approximately $130,000.

In addition, the plaintiff claims that from 1979 to 1981 he was spending more than he was earning. Therefore, the plaintiff asserts, it would have been reasonable for the court to conclude that the only possible source of funds for the stocks and bonds held in plaintiff's Merrill Lynch account was either the proceeds...