Rubin v. Rubin

• Decision Date: 30 June 1987
• Citation: 527 A.2d 1184,204 Conn. 224
• Court: Connecticut Supreme Court
• Parties: , 62 A.L.R.4th 91 Yale RUBIN v. Shirley A. RUBIN. 13002.

Page 1184

527 A.2d 1184

204 Conn. 224, 62 A.L.R.4th 91

Yale RUBIN v. Shirley A. RUBIN.

13002.

Supreme Court of Connecticut.

Argued March 10, 1987.

Decided June 30, 1987.

Francis M. Bosze, Bridgeport, for appellant (plaintiff).

Pasquale Young, New Haven, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and SCHALLER, JJ.

SHEA, Justice.

The Appellate Court upheld the judgment of the trial court, in an action for dissolution of marriage, ordering the plaintiff husband to pay to the defendant wife a share of the assets he may acquire under his mother's will and on termination of a revocable inter vivos trust created by her. Rubin v. Rubin, 7 Conn.App. 735, 510 A.2d 1000 (1986). This court granted the plaintiff's petition for certification and now addresses the issue of the propriety in a marriage dissolution judgment of such a contingent assignment of property that one party expects to acquire. We reverse the judgment of the Appellate Court.

The facts relating to the issues on appeal are not disputed. The parties were married in 1950. Due to the excessive use of alcohol by the plaintiff, the marital relationship broke down and the parties separated in 1978. The plaintiff, in his complaint, and the defendant, in her cross-complaint, each sought a dissolution of the marriage and an assignment of the other's estate pursuant to General Statutes § 46b-81. ¹ Additionally, the defendant sought alimony. At the time of the dissolution decree in 1985, the plaintiff was sixty-two years old and the defendant was fifty-six years old. There were no minor children of the marriage.

The plaintiff, who had received a degree in business administration before taking over his father's scrap metal business, averred in his financial affidavit that he had no income from wages because his "business is now defunct." He admitted, however, that he had been receiving an annual gift of $10,000 from his mother, and an additional $6000 per year from a trust fund set up by his sister's husband. By its terms, that trust will expire in 1988 unless its life is extended by the settlor. ² The plaintiff listed total assets of $95,050, which consisted of a home in Hamden, a car, a life insurance policy, and various items of personal property. His total liabilities of $17,280 included a $10,000 debt to his mother, and his estimate of weekly expenses of $513.22 included a contribution to the defendant of $105.76.

The financial affidavit of the defendant, who had received a high school education, showed a total weekly income of $55, total assets consisting of a car valued at $200, and total liabilities of $5343, which principally represented the cost of medical care for a chronic ailment. The defendant's weekly living expenses amounted to $252. Although the defendant has some work experience in the field of interior design, her prospects for future earnings are dim.

The plaintiff is the residuary beneficiary of a revocable inter vivos trust created by his mother, which is funded with approximately $225,000 in securities. At oral argument the plaintiff acknowledged that, for a while, money from his mother's trust fund had supported the marriage of the parties. Additionally, the plaintiff is one of two equal residuary legatees under the will executed by his mother, whose assets at the time of the dissolution were approximately $725,000. See generally Rubin v. Rubin, supra, at 736-38, 510 A.2d 1000.

In its decree dissolving the marriage, the trial court ordered (1) that the plaintiff pay the defendant as periodic alimony the weekly sum of $150, (2) that the plaintiff name the defendant as the irrevocable beneficiary of his $10,000 life insurance policy, (3) that the family residence, valued at $60,000 in the plaintiff's affidavit, and almost all of its contents be awarded to the defendant, (4) that the plaintiff pay all current debts of both parties, and (5) that the plaintiff pay to the defendant's counsel the sum of $1000 in attorney's fees. Id., at 738, 510 A.2d 1000. In addition the trial court ordered that the plaintiff pay to the defendant one third of the net estate that he may receive "from either the trust created by his mother and from her by way of a testamentary gift or other form of inheritance." On appeal the plaintiff challenges this contingent order and also claims that the court erred in allowing into evidence the trust agreement and his mother's deposition, which concerned her will and assets, and seeks a new trial at which such evidence would be excluded. We conclude that the contingent order cannot be sustained either as an assignment of property under General Statutes § 46b-81 or as an award of alimony under General Statutes § 46b-82. We also hold that the evidence concerning the plaintiff's expectancy was inadmissible in respect to the other issues in the case and, therefore, that a new trial is necessary.

I

Our analysis of this case requires an understanding of the distinction between alimony and a property division. "The purpose of alimony is to meet one's continuing duty to support; Wood v. Wood, 165 Conn. 777, 784, 345 A.2d 5 (1974); while the purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his. Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982)." Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). "The mode of the allowance or the name by which it is called does not determine its character, since the true test is the purpose for which it is made." Maxwell v. Maxwell, 11 Conn.Sup. 205, 207 (1942). Although alimony is usually payable periodically, whereas a property division usually is effectuated by a single transfer or payment, lump sum alimony awards as well as property divisions carried out by installment payments have often been decreed. "The form of the order therefore does not always reveal its true substance." H. Clark, Domestic Relations in the United States (1968) § 14.8, p. 450. "It is easy to see how, relying upon a vague statutory power, the courts have come to blur the distinction between alimony orders and divisions of property." Id., p. 451.

While a divorce court, as a court of equity, has been deemed to possess the inherent power to adjudicate the property rights of the parties before it; see Singer v. Singer, 165 Ala. 144, 148, 51 So. 755 (1910); Cole v. Cole, 142 Ill. 19, 26, 31 N.E. 109 (1892); Carnahan v. Carnahan, 143 Mich. 390, 396-97, 107 N.W. 73 (1906); the power of a court to transfer property from one spouse to the other must rest upon an enabling statute. See Connolly v. Connolly, 191 Conn. 468, 476, 464 A.2d 837 (1983); Valante v. Valante, 180 Conn. 528, 532, 429 A.2d 964 (1980); see also Riggers v. Riggers, 81 Idaho 570, 573-74, 347 P.2d 762 (1959); Emery v. Emery, 122 Mont. 201, 224, 200 P.2d 251 (1948). Authority in Connecticut for such a transfer of property is found in General Statutes § 46b-81, which provides in part that "[a]t the time of entering a decree ... dissolving a marriage ... the superior court may assign to either the husband or wife all or any part of the estate of the other.... In fixing the nature and value of the property, if any, to be assigned, the court ... shall consider the ... needs of each of the parties and the opportunity of each for future acquisition of capital assets and income."

In Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978), this court construed the predecessor of § 46b-81, despite the reference to "the opportunity ... for future acquisition of capital assets," not to permit the consideration of evidence of a "potential inheritance." We upheld the ruling of the trial court sustaining an objection to the admission of testimony regarding the net worth of the plaintiff wife's mother, who had prepared a will naming the wife as a beneficiary. We stated: "The court's ruling cannot be said to be an abuse of discretion since under the circumstances surrounding the vesting of a 'potential inheritance of the wife,' as the defendant describes it, the expectancy according to the testimony elicited and appearing in the finding and transcript is, at best, speculative. ' "Expectancy" is the bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist.' Johnson v. Breeding, 136 Tenn. 528, 529, 190 S.W. 545 [1916]." Krause v. Krause, supra, 174 Conn. at 365, 387 A.2d 548.

Distinguishing Krause from the present case, the Appellate Court stated: "Superficially, and resting on its own language, Krause would appear to bar the evidence and orders involved in this case. A fundamental difference, however, between Krause and this case distinguishes its holding. In Krause, the defendant was seeking a present order based on a totally speculative and uncertain future happening, while, in the present case, the defendant spouse was awarded a future share contingent on the plaintiff's receipt of certain benefits." (Emphasis in original.) Rubin v. Rubin, supra, 7 Conn.App. at 740, 510 A.2d 1000. Because the Appellate Court viewed Krause, which dealt only with issues of property transfer, ³ as the precedent most apposite to the disposition of the present case, its decision may plausibly be read to regard the challenged order, that the plaintiff pay to the defendant one third of the net estate he may acquire from his mother's will or inter vivos trust, as similarly representing a property transfer.

We decline to adopt the position that the challenged order in the present case, involving a contingent award of expected property, can be upheld as a property transfer authorized by § 46b-81. As we have stated, § 46b-81 authorizes the court to assign to either spouse "all or any part of the estate of the other," and prescribes that, in fixing the value of such "property," the...