Scott v. Scott

• Decision Date: 02 August 1983
• Court: Connecticut Supreme Court
• Parties: Elton W. SCOTT v. Helen B. SCOTT.

Page 1054

462 A.2d 1054

190 Conn. 784

Elton W. SCOTT v. Helen B. SCOTT.

Supreme Court of Connecticut.

Argued June 2, 1983.

Decided Aug. 2, 1983.

Donna J. Brooks, Woodbury, for appellant (plaintiff).

Jess H. Smith, Litchfield, with whom, on brief, was George B. Simoncelli, Jr., Litchfield, for appellee (defendant).

Before PETERS, PARSKEY, SHEA, GRILLO and SPADA, JJ.

GRILLO, Associate Justice.

This appeal results from the denial by the trial court of a motion by the plaintiff to modify or to terminate an alimony award of $25 per week granted to the defendant.

The chronological history of court proceedings together with related facts culminating in the motion under consideration is as follows:

On August 9, 1974, the court, Hon. Abraham S. Bordon, state referee, dissolved the marriage of the parties and, in addition to the monetary award, ordered the plaintiff to transfer to the defendant his interest in the family residence located in Torrington, an automobile, and the plaintiff's interest in the family business, the Scott Manufacturing Company. In September, 1974, the plaintiff instituted an appeal to the Supreme Court from the judgment. In response to the defendant's motion to terminate the stay issued pursuant to Practice Book, 1963, § 661 ¹ filed on May 5, 1975, the plaintiff filed a financial statement dated May 23, 1975, listing his weekly net wages at $139.38. The motion to terminate the stay was subsequently granted. ²

On July 30, 1975, the referee made a finding in accordance with Practice Book, 1963, § 618 wherein he stated "[i]t the financial statement of the plaintiff] shows weekly net earnings of $139.38 by the plaintiff." It is this finding and its efficacy which represent the primary bone of contention between the parties on appeal.

Following the defendant's motion to dismiss for lack of diligence pursuant to Practice Book, 1963, §§ 696-97, we dismissed the appeal on March 3, 1976. On May 7, 1981, the plaintiff filed a motion to modify or to terminate the alimony award. The motion was denied since the trial court found that no substantial change in circumstances had occurred. It is from the denial of this motion that the plaintiff now appeals.

In the present appeal, the plaintiff claims (1) that the trial court erred by readjudicating the factual finding of the court in 1974 as to the plaintiff's income and (2) that the denial of the motion for modification or termination of alimony was an abuse of discretion.

As to the first issue, the plaintiff argues that a significant basis for the determination of the $25 per week alimony award was Judge Bordon's finding that the plaintiff's income was $139.38 per week. Maintaining that the former finding was conclusive because it constituted a factual issue actually litigated and determined in the former action and essential thereto, the plaintiff argues that the defendant was estopped from challenging that finding in the present action.

The glaring deficiency in the plaintiff's argument is the fact that the affidavit of the plaintiff was filed on May 23, 1975, indicating the $139.38 figure was not presented to the referee until several months after the 1974 dissolution decree in response to the aforesaid motion of the defendant relating to the appeal. The referee did not, and obviously could not, have used facts in the 1975 affidavit as a basis for his order; its contents contain facts which did not exist at the time of the 1974 judgment. It is crystal clear that at the hearing in 1974, the only financial statement of the plaintiff before the court was one filed June 25, 1974, indicating an income of $98 per week. Interestingly enough, the plaintiff himself, in his assignment of errors ³ relating to the referee's finding, stated that the court erred "[i]n predicating its finding on a financial affidavit filed by the Plaintiff in 1975 and not his financial affidavit of 1974, when the case was determined." (Emphasis added.) While consistency has been the subject of derision by many philosophers and authors, ⁴ the practice of egregious inconsistency hardly merits one the Croix de Guerre.

The plaintiff now seeks to benefit from this $139.38 finding, which he himself had previously assigned as error, by claiming that the finding that he had net weekly earnings of $139.38 should be given collateral estoppel effect and that, since he is now earning only $99 per week, a substantial change in circumstances has occurred justifying a modification or termination of alimony. This the court cannot permit.

Even were we to assume that there exists a semblance of validity in the plaintiff's position that the $139.38 figure controls, his reliance on the doctrine of collateral estoppel is misplaced. " 'Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action ....' " Brockett v. Jensen, 154 Conn. 328, 337, 225 A.2d 190 (1966), quoting Restatement, Judgments § 68. In the present case, however, the parties had no opportunity to litigate the appropriateness of the determination that the plaintiff was earning $139.38 per week at the time of the dissolution. Because the plaintiff's appeal was dismissed for lack of prosecution, the defendant did not have occasion to challenge the finding and assign error relative to it. ⁵ Practice Book, 1963, §§ 622 and 623; see also Hollingsworth v. Hollingsworth, 180 Conn. 212, 429 A.2d 463 (1980). " '[P]ersons who, although parties to an action, do not have an opportunity of litigating between themselves the correctness of a determination which is the basis of the judgment for or against them, are not concluded, in a subsequent action between them, by such a determination.' " Brockett v. Jensen, supra, 154 Conn. at 338-39, 225 A.2d 190, quoting Restatement, Judgments § 82. Under these circumstances, we conclude that the trial court was not bound by the $139.38 figure in its determination of the appropriateness of a modification or termination of the alimony award. Its use of the $98 figure was correct since that figure was the only one which could have been employed by the referee at the time of the dissolution and alimony award in 1974.

The plaintiff next attacks the trial court's denial of his motion for modification or termination of alimony. He argues that there was no basis in the evidence which could justify a continuation of the alimony award and that the decline in his weekly income from $139.38 in 1974 to $99 in 1981 fulfills the "substantial change in circumstances" requirement of General Statutes § 46b-86(a). ⁶ Therefore, the plaintiff argues that the $25 per week alimony award should be modified or terminated accordingly.

The plaintiff's argument must fail. We have already determined that his reliance on the $139.38 figure in the computation of the 1974 alimony award is totally inaccurate. The referee had only the $98 figure before him at the time of the dissolution. Since a comparison of the plaintiff's 1974 and 1981 financial statements reveals only a $1 increase in income ($98 income per week in 1974 to $99 per week in 1981), the trial court did not err in finding no "substantial change in circumstances." ⁷ In...