Rubin v. Rubin

• Decision Date: 17 June 1986
• Docket Number: No. 4066,4066
• Citation: 7 Conn.App. 735,510 A.2d 1000
• Court: Connecticut Court of Appeals
• Parties: Yale RUBIN v. Shirley A. RUBIN.

Page 1000

510 A.2d 1000

7 Conn.App. 735

Yale RUBIN v. Shirley A. RUBIN.

No. 4066.

Appellate Court of Connecticut.

Argued April 29, 1986.

Decided June 17, 1986.

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

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

Before DUPONT, C.J., and HULL and DALY, JJ.

HULL, Judge.

This case raises the question whether, in a dissolution action, the awarding to one spouse of a share of the assets which the other spouse may acquire in the future under his mother's will and on termination of an inter vivos trust, runs afoul of the rule of Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978). That case held that testimony concerning the potential inheritance of a spouse is speculative and therefore inadmissible. We hold that no per se rule governs admission of such testimony but rather each case rests upon its own factual foundation, and that in this case where fundamental fairness mandated such an order, and where the order was entirely contingent on future events, the Krause rule was not violated by admission of the challenged testimony.

To set the stage for analysis of this issue, a detailed summary of the court's factual findings, reasoning, and orders entered is necessary. The parties married in 1950. ¹ In 1983, the plaintiff husband sought a dissolution on the grounds of irretrievable breakdown. The defendant wife filed a cross-complaint seeking affirmative relief. At the time of the court's decision on February 9, 1985, the plaintiff was sixty-two years old. After receiving a degree in business administration, the plaintiff was employed in his father's scrap metal business which was conducted on an Ansonia site owned by his mother. When his father died, the plaintiff carried on the business until the real estate was taken in eminent domain proceedings. He thereafter conducted the business in Bridgeport for several years until it was terminated due to financial losses. The plaintiff, whose health had been impaired by former excess use of alcohol, was unemployed for several years prior to the dissolution judgment. Although eligible for social security benefits, the plaintiff had not applied because he thought that he was still employable.

The plaintiff's financial affidavit showed virtually no wages, as his business was defunct. He claimed $16,000 a year income, however, consisting of $6000 per year from a trust fund and a $10,000 annual gift from his mother. ² He showed weekly expenses of $513.22, including $105.76 a week to his wife. He claimed to have assets of $95,050 including the family dwelling at $60,000, a car at $2900, personal property at $25,500, and a life insurance policy with a $6650 face value. The plaintiff claimed liabilities of $17,280 consisting, in part, of a debt of $10,000 to his mother. The court found that the plaintiff was the residuary beneficiary of an inter vivos trust created by his mother. This trust provided that on the death of the plaintiff's mother, he would receive all of the remaining trust estate then amounting to over $200,000. While the net proceeds of the trust were then payable solely to the plaintiff's mother, she had been giving him $10,000 a year in ten installments of $1000 each. The plaintiff was also a beneficiary under a trust created by a sister's husband which terminates in 1988 unless extended by the settlor. Additionally, the plaintiff is one of two equal residuary legatees under his mother's will. ³ Finally, the court found that the principal cause of the breakdown of the marriage in 1978 was the plaintiff's excessive use of alcohol.

The defendant wife, who was fifty-six years old at the time of the decree, was under medical care for a chronic ailment. While the defendant's illness was under control at the time of the dissolution, she tired easily and occasionally had memory lapses. She has a high school education but was unemployed at the time of the dissolution. While she could do some work in interior designing, the defendant's prospects for future earnings were not very bright. The defendant's financial affidavit showed $20 a week wages and $35 a week rent from one of her daughters who lives with her. Her total assets consisted of a $200 car. She owed $5343, most of which was bills incurred as a result of her illness.

The court ordered as follows: (1) that the family residence and almost all of its contents be awarded to the defendant; (2) that the plaintiff pay periodic alimony of $150 weekly to the defendant; (3) that the plaintiff name the defendant irrevocable beneficiary of his $10,000 life insurance policy; (4) that the plaintiff pay all current debts of both parties; (5) that the plaintiff pay the defendant $1000 for counsel fees. In its memorandum of decision, the court then gingerly stepped through the mine field created by our Supreme Court's decision in Krause v. Krause, supra, holding as follows: "It is apparent from the foregoing statement of the terms of the trust that the plaintiff has no presently vested interest in any of the assets of the trust corpus or of the income from that source, which would be susceptible to assignment by either the plaintiff himself or by this court. Krause v. Krause, supra; Thompson v. Thompson, 183 Conn. 96, [438 A.2d 839 (1981) ]. However, the court may and will make an order which will be contingent upon the possibility of the future inheritance becoming an actuality." Accordingly, the court ordered that the plaintiff pay one-third of the net estate which he receives from either the trust created by his mother or of any testamentary gift he received from her in the form of inheritance. ⁴

The plaintiff appealed and filed eight claims of error which may be fairly summarized as follows: (1) that the court erred in ordering the payment of one-third of any future inheritance from his mother and a one-third share of the amount he may receive from the mother's inter vivos trust, and in allowing evidence concerning this matter; (2) that the court erred in awarding the above contingent amounts since together with all of the other court orders the total was an unreasonable and disproportionate award to the defendant; (3) that the court erred in awarding counsel fees to the defendant; and (4) that the court erred in awarding periodic alimony to the defendant given the parties' circumstances. We find no error.

The principal issue is the court's consideration of Krause -type testimony despite that case's apparent prohibition of such evidence. The issues in Krause v. Krause, supra, were whether the trial court erred in a dissolution action by failing to make an award or assignment of property to the defendant husband based upon his claim that the plaintiff had an opportunity for future acquisition of assets and income from her parents and by failing to admit into evidence the plaintiff's mother's testimony of her net worth. The dissolution judgment ordered the defendant to pay $50 a week child support, and did not award to either party alimony or a division of the other's property.

At trial, the defendant sought to admit testimony to show that, from 1968 to the time of the dissolution, the plaintiff had received income from investments and gifts from her parents. The plaintiff's mother was permitted to testify that she and her husband had provided for the plaintiff and for their granddaughter. The trial court ruled, however, that testimony as to the net worth of the plaintiff's mother was inadmissible. ⁵ The defendant claimed the trial court erred in sustaining the plaintiff's objection to the admission of testimony of her mother's net worth. In addressing the defendant's claim that this action was erroneous, our Supreme Court said "[t]he 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]. The moment of the decedent's death determines the right of inheritance or testamentary succession. Emanuelson v. Sullivan, 147 Conn. 406, 409, 161 A.2d 788 [1960]; 23 Am.Jur.2d, Descent and Distribution, § 14." Krause v. Krause, supra, 174 Conn. 365, 387 A.2d 548.

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.

Our conclusion is supported by our Supreme Court's decision in Thompson v. Thompson, 183 Conn. 96, 438 [7 Conn.App. 741] A.2d 839 (1981), wherein the court somewhat undermined the hard and fast exclusionary rule set forth in Krause. In Thompson, the plaintiff wife appealed from a dissolution judgment transferring to her the defendant's one-half equity in the parties' house and ordering her to pay the defendant $19,000 for that interest. She claimed that the trial court erred in considering evidence on the extent of her potential inheritance from her mother. In responding to that claim, our Supreme Court stated as follows: "With respect to the potential inheritance, additional background material is necessary to put the plaintiff's claim in proper perspective. The defendant introduced evidence showing that the plaintiff was listed, along with her elderly mother, as a joint...