Smith v. Smith
| Decision Date | 17 November 1981 |
| Citation | 185 Conn. 491,441 A.2d 140 |
| Court | Connecticut Supreme Court |
| Parties | Leona B. SMITH v. F. Gordon SMITH. |
Robert M. Davidson, Westport, with whom was Donald G. Field, for appellant (plaintiff).
Philip R. McKnight, Greenwich, with whom, on the brief, was Arthur R. Ivey, Greenwich, for appellee (defendant).
Before SPEZIALE, PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.
On April 22, 1980, Tierney, J., state referee, dissolved the marriage between the parties. The referee awarded no alimony and ordered that the plaintiff retain full title to her home in Greenwich. The referee also ordered that the defendant pay any federal income tax deficiency found for the years 1973-1977 and that he hold the plaintiff harmless and indemnify her against any liability for such tax. The plaintiff appeals from two further orders entered by the referee: (1) that she reimburse the defendant $17,000 for home improvements and (2) that the 1977 income tax refund of $16,107.50 be divided equally and distributed to the parties.
The plaintiff claims that the referee's findings of fact do not support the $17,000 award which in her view was made contrary to the standards set forth in General Statutes §§ 46b-81 1 and 46b-82. 2 She contends that an assignment of property, like an award of alimony, must be based upon a duty to support. The plaintiff argues that the order to pay $17,000 was made without authority because the referee did not find that the plaintiff owed a duty of support to the defendant.
It is not necessary to recount here the history of General Statutes §§ 46b-81 and 46b-82 which we have discussed previously. See, e.g., Pasquariello v. Pasquariello, 168 Conn. 579, 581-83, 362 A.2d 835 (1975). It is sufficient to note that although both statutes set forth most of the same factors for the court to consider in determining the amount to be ordered, § 46b-81 provides a distinguishing feature The statute does not require that the court find a duty of spousal support before it can equitably divide the assets of the parties. Compare Fucci v. Fucci, 179 Conn. 174, 176-83, 425 A.2d 592 (1979) () with Hotkowski v. Hotkowski, 165 Conn. 167, 170, 328 A.2d 674 (1973) ().
The $17,000 reimbursement is governed solely by General Statutes § 46b-81. See Fucci v. Fucci, supra. The court is not required to assign the residence to one party or the other, but may fashion suitable, equitable relief to fit the circumstances, including an order that the plaintiff reimburse the defendant for funds expended on improvements to the plaintiff's home. See Pasquariello v. Pasquariello, supra.
It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979). There was sufficient evidence before the referee to find that the defendant contributed $17,000 worth of improvements to the plaintiff's home. The referee's decision was well grounded.
In addition, the plaintiff claims that the referee abused his discretion on the matter of the tax refund. The plaintiff does not dispute the equal division ordered but seeks a deferral of distribution to the defendant. It is her opinion that in a pending contest with the Internal Revenue Service, a joint liability may be assessed if a deficiency is found. Despite the referee's order imposing the responsibility for payment solely upon the defendant in such a contingency, the plaintiff believes it possible that the Internal Revenue Service may require her to pay the entire deficiency. Therefore, she assigns as error the failure of the referee to order that the tax refund be retained in escrow pending the tax investigation to assure that the defendant will have the funds for payment should the deficiency be assessed.
Judicial review of an alleged abuse of discretion centers on the question of whether the court could reasonably have concluded as it did. Fucci v. Fucci, supra, 179 Conn. 182-83, 425 A.2d 592. The referee took into consideration the fact that joint tax liability may eventually be assessed on the contested deductions taken during the years 1973-1977. He ordered that in such a contingency, the defendant be liable for it...
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