Siracusa v. Siracusa

• Decision Date: 09 March 1993
• Docket Number: No. 10824,10824
• Court: Connecticut Court of Appeals
• Parties: Susan SIRACUSA v. Daniel SIRACUSA.

Page 309

621 A.2d 309

30 Conn.App. 560

Susan SIRACUSA v. Daniel SIRACUSA.

No. 10824.

Appellate Court of Connecticut.

Argued Jan. 8, 1991.

Decided March 9, 1993.

Christina M. Storm, with whom was Thomas A Rouse, Hartford, for appellant (defendant).

Lloyd Frauenglass, with whom, on the brief, was Candace V. Bath, Glastonbury, for appellee (plaintiff).

Before DUPONT, C.J., and FOTI and HEIMAN, JJ.

FOTI, Judge.

In this dissolution action, the defendant appeals from the judgment rendered, claiming that the trial court improperly (1) determined periodic financial orders and a property distribution schedule, (2) awarded time-limited alimony, ¹ (3) distributed the marital estate, (4) determined the value of the family business, and (5) exercised excessively broad discretion over financial and commercial business issues not involving custody or marital matters. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. The parties met while attending college. Following his graduation in 1979, the defendant established a moving business called "Dan's Moving." The plaintiff left college in the spring of 1980 without graduating. In her spare time, she assisted the defendant in the development of his business. After their marriage on October 16, 1982, the plaintiff began devoting all of her time to the moving business, serving as operations manager, hiring and firing employees, and working fifty to sixty hours per week. At the plaintiff's urging, the business was incorporated in 1984 as Siracusa Moving and Storage Company, Inc. The plaintiff received 40 percent of the stock, and the defendant received the remaining 60 percent. About this time, the defendant's brother began working for the company, and the plaintiff devoted substantially all of her time to caring for the parties' residence. She also obtained her real estate agent's license which, at the time, she felt would be of some assistance to the defendant in developing the moving business. She worked as a real estate agent for a short while. In 1985, the parties purchased a house, and in May, 1986, their daughter was born. During this period, the defendant devoted nearly all of his time to company business, leaving little or no time for social events or vacations. The plaintiff supported the defendant's efforts and goals, and the business prospered.

In the spring of 1988, the marriage began to deteriorate. In September, 1988, divorce proceedings were initiated by the plaintiff, who claimed that the marriage had broken down irretrievably with no hope of reconciliation. On October 2, 1991, the trial court rendered judgment dissolving the marriage. In making its orders as to how the marital estate should be divided, the trial court concluded "that fault on the part of neither party is a factor to be considered."

The court found that the value of the family business at the time of the marriage was $23,408 and at the time of the dissolution was $820,000. A jointly owned condominium was valued at $117,500, with a mortgage of $68,500. The marital residence was valued at $175,000, with a mortgage of $114,000. The gross marital estate was valued at $973,604.

The court awarded the plaintiff 53 percent of the marital estate and the defendant 47 percent. The court deducted from the gross marital estate the value of the business on the date of the parties' marriage ($23,408) and established the plaintiff's 53 percent interest at $503,604 and the defendant's 47 percent interest at $446,592. The court allocated property accordingly. The plaintiff was granted custody of the minor child.

The defendant was ordered to pay the plaintiff $319 a week as child support, by agreement, and $300 a week as alimony. The alimony was to be paid for a two year period. As part of its allocation of property, the trial court ordered the plaintiff to convey her interest in the family business to the defendant, who in turn would execute and deliver to the plaintiff a $428,525 promissory[30 Conn.App. 563] note, at 6 percent interest, secured by a mortgage on two of his properties. The court established a seven year payment schedule that required the defendant to make a $25,000 lump sum payment to the plaintiff within two months of the judgment, and monthly payments of $2500 thereafter, with a balloon payment of the balance due on October 2, 1998.

The defendant first claims that the trial court abused its discretion in ordering weekly payments of alimony and child support that, combined with his periodic payment of the property settlement, ² exceeded his weekly income. The defendant's financial affidavit disclosed his weekly income as $1066. He argues, therefore, that there were no findings to support the court's order of weekly payments, which he claims "grossly exceeded" his earnings. ³

The record shows that the trial court had before it both the financial affidavit disclosing the $1066 weekly income and other evidence indicating that the defendant's income was $75,000 a year. (At the dissolution proceeding, the defendant's counsel indicated to the court that the defendant had based the agreed upon amount of weekly child support on the existing child support guidelines, which recommend $319 based on a $75,000 annual income.) The court was also aware that the defendant had been paying $892 per week for the plaintiff and the minor child during the pendency of the action. The combined weekly alimony and child support payment finally ordered by the court in the judgment ($619) was therefore substantially less than the defendant had been paying prior to the order. As the plaintiff correctly points out, the seven year payout of the property settlement was ordered as a means of spreading out over time the payment of her percentage of the marital estate. The court apparently rendered this order after considering argument made by the defendant's counsel to the effect that there was insufficient liquidity in the family business to enable the defendant to pay the plaintiff in a lump sum. This periodic payment is separate and distinct from the $619 weekly alimony and child support ordered by the court. There is no question that the trial court could have ordered a sale of the business to facilitate division of the marital assets. See General Statutes § 46b-82, footnote 5, infra.

While a trial court must consider a number of factors in awarding alimony and distributing the assets of the parties, and may exercise broad discretion in that consideration; Miller v. Miller, 22 Conn.App. 310, 314, 577 A.2d 297 (1990); it need not recite each factor in its decision, and it is sufficient that the memorandum of decision "at least reflect a proper consideration and weighing of the factors set forth in the statute." Koper v. Koper, 17 Conn.App. 480, 484, 553 A.2d 1162 (1989). The record is clear that, in establishing these orders and structuring a seven year payment schedule, the court considered the statutory criteria enumerated under General Statutes §§ 46b-81 ⁴ and 46b-82 ⁵. The court looked specifically at the occupations, skills and employability of the parties. It found that the plaintiff, with three years of college education, had worked as a waitress, had obtained her real estate agent's license, and had some experience in the moving business. The defendant, a college graduate, is the chief executive officer of a moving and storage company he established twelve years ago. The trial court found that "[f]rom the nature of the occupations and skills of the parties ... [the] defendant has a far greater opportunity than does the plaintiff for the future acquisition of capital assets or income." It is a "well recognized family law principle that, in a marital dissolution proceeding, the court may base financial awards on the earning capacity rather than the actual earned income of the parties." Carey v. Carey, 29 Conn.App. 436, 440, 615 A.2d 516 (1992).

We will not disturb a trial court order unless there has been an abuse of discretion or unless the finding of the trial court has no reasonable basis in the facts. Brash v. Brash, 20 Conn.App. 609, 612, 569 A.2d 44 (1990). The orders here were reasonably based on the facts; we conclude that there was no abuse of discretion.

The defendant next claims that there was no reasonable basis to support the court's award of 53 percent of the marital estate to the plaintiff. Since the record establishes that he contributed the "lion's share" to acquisition of the marital estate, and that no fault was assessed to either party as cause of the breakdown, he contends that this award was unsupported by the record in view of the relatively short length of the marriage. We disagree.

General Statutes § 46b-81(c) sets forth numerous factors that a trial court must consider in assigning the property of the parties whose marriage is to be dissolved by the court. That section mandates that the court consider not only the contribution of each party toward acquisition of the property, but the length of the marriage, the cause of the dissolution and "the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income." General Statutes § 46b-81(c). The court must consider all of the statutory criteria in determining how to divide the parties' property in a dissolution action. Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985). "A trial court, however, need not give each factor equal weight; Kane v. Parry, [24 Conn.App. 307, 313-14, 588 A.2d 227 (1991) ]; or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor." Savage v. Savage, 25 Conn.App. 693, 701, 596 A.2d 23 (1991). An award of a larger percent of the total marital assets to one party is not a per se abuse of discretion. Sweet v. Sweet, 190 Conn....