Stoner v. Stoner

Decision Date05 July 1972
Citation307 A.2d 146,163 Conn. 345
CourtConnecticut Supreme Court
PartiesRuth STONER v. Melvin STONER.

Paul W. Orth, Hartford, for the appellant (defendant).

John Crosskey, Hartford, with whom was Robert P. Knickerbocker, Jr., Hartford, for the appellee (plaintiff).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ.

MacDONALD, Associate Justice.

The defendant has appealed from two sets of orders incident to a divorce granted to the plaintiff on July 2, 1970. His principal ground of appeal is from the financial orders of the state referee, exercising the powers of and hereinafter referred to as the court, directing him to pay (1) $250 a week alimony, (2) $50 a week support for each f two minor children whose custody was awarded to the plaintiff, (3) $3300 toward counsel fees and costs, including the expenses of an accountant and a detective, (4) $1000 toward outstanding bills, and (5) directing him to convey to the plaintiff, inter alia, his interest in the jointly-owned residence of the parties free and clear of a second mortgage in the amount of $15,600. A further ground of appeal is from an order of April, 1971, finding him in contempt for failure to company with the foregoing orders of July 2, 1970.

The first of the defendant's numerous attacks on the finding alleges error in the failure of the court in include therein the material facts contained in some sixty paragraphs of the draft finding on the basis that they were or 'should have been' undisputed. We consider only the addition of facts which actually were undisputed. 'To secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses . . . that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. . . . That a fact was testified to and was not directly contradicted by another witness is wholly insufficient. . . . The trier is the judge of the credibility of witnesses.' Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634; Practice Book § 628(a); State v. Dukes, 157 Conn. 498, 500, 255 A.2d 614; Drazen Lumber Co. v. Casner, 156 Conn. 401, 403, 404, 242 A.2d 754; Brockett v. Jensen, 154 Conn. 328, 330, 225 A.2d 190; Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 540-541, 129 A. 527; Allis v. Hall,76 Conn. 322, 340, 56 A. 637; Maltbie, Conn.App.Proc. § 158. The defendant has not established that the court failed to include in its finding any paragraphs which were conceded to be undisputed.

The defendant's second assignment of error attacks the court's inclusion of nineteen paragraphs of the finding as being unsupported by evidence. The attacks on some of the findings have not been pursued and accordingly they are treated as abandoned. Martin v. Kavanewsky, supra, 157 Conn. 516, 255 A.2d 619; Katz v. Brandon, 156 Conn. 521, 524, 245 A.2d 579; State v. Kohlfuss, 152 Conn. 625, 635, 211 A.2d 143. The mere fact that the defendant states in his brief 'that he is pursuing all assignments of error in all respects except those which find support in his testimony' is not sufficient to preserve them. Thomas v. Ganezer, 137 Conn. 415, 423, 78 A.2d 539; Marra v. Kaufman, 134 Conn. 522, 529, 58 A.2d 736; State v. Jones, 124 Conn. 664, 665, 2 A.2d 374. With respect to the remaining paragraphs claimed to have been found without evidence, they are to be tested against the evidence printed in the appendix to the defendant's brief. The plaintiff apparently elected to rely on the evidence as printed by the defendant together with the exhibits which have been made a part of the finding and accordingly printed no appendix to her brief. Applying this test, and more particularly, taking into account the inferences reasonably to be drawn from a careful analysis of the exhibits pertaining to the defendant's income from and interest in various business enterprises during the taxable years 1968 and 1969, we find that all of the material paragraphs are supported by the evidence. Walker v. Jankura, 162 Conn. 782, 294 A.2d 536; Cappiello v. Haselman, 154 Conn. 490, 492, 227 A.2d 79.

The defendant's third assignment of error seeks to strike some twenty paragraphs of the finding on the ground that they are in language of doubtful meaning. No reference to this assignment or error was made either in the defendant's brief or oral argument except for the following statement in the brief: 'Defendant also attacks the vague, one-sided, or argumentative findings set forth in the third assignment of errors, but believes they need no elaboration here.' We hold the language quoted to be insufficient to prevent this assignment from being considered abandoned. 'Assignments of error are also deemed to be abandoned where they are merely mentioned in the brief without any discussion of the particular issues mentioned.' Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721; Pluhowsky v. New Haven, 151 Conn. 337, 345, 197 A.2d 645. Even had these claims not been considered abandoned, '(s)uch correction will rarely be made and never for the mere purpose of substituting language of counsel for that of the court.' Practice Book § 628(b).

The finding, which is not subject to any material change, reveals the following facts: The plaintiff and the defendant were married June 11, 1950. On July 2, 1970, the plaintiff was granted a divorce on the ground of intolerable cruelty and at that time was awarded custody of two of the four minor children of the marriage. She was then a housewife, forty-four years of age and in good health. As a result of a modification in 1971 of the original judgment, she now has custody of three of the four minor children of the marriage. The defendant, age forty-one and in good health, was an attorney and senior partner in the Hartford law firm of Stoner, Gross and Kline. In addition to his law practice, he had financial interests in a number of real estate investment and management companies and partnerships. In each of the calendar years 1968 and 1969, his available income from all sources amounted to approximately $50,000. During their married life, the plaintiff and the defendant enjoyed a high standard of living, vacationing at the shore each summer, taking frequent trips to the city of New York and Puerto Rico and residing in a home located at 88 Terry Road, Hartford, valued at between $75,000 and $85,000. Prior to their separation, the defendant gave the plaintiff an allowance of $150 per week in addition to paying all charge accounts and expenses. The plaintiff and the defendant jointly owned the residence at 88 Terry Road which was subject to a first mortgage of $42,000. One month after the parties separated, the defendant executed a second mortgage of $15,600 on his previously unencumbered share of the property to one of his close business associates without receiving present consideration for such mortgage. Based on the foregoing facts, the court rendered the financial orders which are the subject of the defendant's appeal.

Whether the orders under review should stand must be determined largely by our disposition of the defendant's principal contention that the court erred when it included in his income available for alimony and support cash attributable to depreciation taken by the various real estate enterprises in which the defendant owned substantial financial interests. The defendant contends that the annual income of approximately $50,000 attributed to him by the court for the years 1968 and 1969 should be reduced by approximately $14,500 and $17,000 respectively, these amounts representing depreciation deductions allowed for federal taxation and accounting purposes. He contends that if his income is thereby reduced to $37,500 for 1968 and $34,000 for 1969, the alimony and support awards of July 2, 1970, would represent such a large percentage of his net available income as to constitute an abuse of discretion by the court.

While this court has not had occasion to pass on this specific issue, case law in other jurisdictions reveals that there are three different basic approaches to the problem, namely, that (1) depreciation is a book figure which does not involve any cash outlay nor reduce actual dollar income and, therefore, should not be allowed as a deduction; that (2) depreciation diminishes income-producing capacity and leads to the eventual replacement of the asset involved thereby warranting its deduction; and that (3) depreciation should not categorically either be deducted as an expense or treated as income, but rather that the extent of its inclusion, if any, should depend on the particular circumstances of each case. Smith v. Smith, 89 Ariz. 84, 358 P.2d 183; Sylvan v. Sylvan, 373 P.2d 232 (Okl.); Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181; Commonwealth v. Miller, 202 Pa.Super. 573, 198 A.2d 373; Commonwealth v. Turnblacer, 183 Pa.Super. 41, 128 A.2d 177; Williams v. Williams, 175 Pa.Super. 409, 104 A.2d 499; Commonwealth ex rel. Rankin v. Rankin, 170 Pa.Super. 570, 87 A.2d 799; Brackob v. Brackob, 265 Wis. 513, 61 N.W.2d 849; note, 1 A.L.R.3d 6, 45. For the reasons hereinafter discussed, we are inclined to follow the third approach.

' The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which sould be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost. The theory underlying this allowance for depreciation is that by using up the plant, a gradual sale...

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