Tevolini v. Tevolini

• Decision Date: 02 October 2001
• Docket Number: (AC 19861)
• Citation: 66 Conn. App. 16,783 A.2d 1157
• Court: Connecticut Court of Appeals
• Parties: GENNARO TEVOLINI v. PAMELA J. TEVOLINI

66 Conn. App. 16

783 A.2d 1157

GENNARO TEVOLINI v. PAMELA J. TEVOLINI

(AC 19861)

Appellate Court of Connecticut.

Argued May 3, 2001.

Officially released October 2, 2001.

Foti, Flynn and Healey, JS.

Alan Scott Pickel, for the appellant (plaintiff).

Rhonna W. Rogol, with whom was Sari B. Jaffe, for the appellee (defendant).

Opinion

HEALEY, J.

The plaintiff, Gennaro Tevolini, appeals from the judgment of the trial court dissolving his marriage to the defendant, Pamela J. Tevolini. On appeal, the plaintiff claims that the court (1) abused its discretion in making its financial orders after it had precluded him from contesting the defendant's assertion as to the condition of her health, which was a material fact in the court's fashioning of its alimony order, and had created an irrebuttable presumption that the defendant was disabled, and (2) improperly denied his motion for a physical examination of the defendant where she claimed that she was disabled and thus incapable of being employed. We reverse in part the judgment of the trial court.¹

The following facts are relevant to our disposition of the plaintiffs appeal. The plaintiff, age forty-three, and the defendant, age forty-nine, were married on June 16, 1990, in Rhode Island.² No children have been born to the defendant since the marriage. The plaintiff, a high school graduate, was, and still is, a hairdresser. He has a fourteen year old daughter from a prior marriage for whom he pays $100 per week in child support, and he is responsible for 50 percent of her nonreimbursed medical expenses. The defendant was a secretary who had an earning capacity at the time she married the plaintiff.³ In 1995, she became certified as a fitness instructor and continues in that occupation on a parttime basis earning $30 for each class. At the time of the trial,the defendant was receiving social security disability benefits of $910 per month. The plaintiff attributed the failure of the marriage to the stresses of the marriage; the defendant believed that her illness and resulting disability caused the breakdown. The court rendered judgment of dissolution on the ground of irretrievable breakdown.

In addition, certain other circumstances should be set forth, particularly those going to the matter of the defendant's health, the plaintiff's attempt to inquire into that area, and the court's response and rulings on that phase of the trial, which specifically involved the issue of alimony. This action was commenced in October, 1997. At that time, the defendant already had been found to be disabled by United States Social Security Administration. When she was determined to be disabled by the Social Security Administration on September 15, 1997, she was notified⁴ that she would become entitled to "monthly disability benefits"⁵ beginning in March, 1998, amounting to $910. At the time of the trial, she was receiving $910 monthly in social security benefits.

On February 26, 1999, the defendant filed with the court proposed orders seeking in alimony the sum of $650 per week "to be paid until the death of either party or the remarriage of the defendant or the defendant regaining her health so that she is able to be employed." In her proposed orders, the defendant claimed that she "presently has [the Epstein-Barr virus], which attacks the immune system and ... has been diagnosed by Susan M. Levine, M.D., with chronic fatigue syndrome." In response, the plaintiff filed a motion for a physical examination of the defendant, requesting that she "be compelled to attend a physical examination by a physician of the plaintiffs choosing" because of her claims that she suffers from chronic fatigue syndrome, an illness that she did not suffer from prior to the parties' separation.

Prior to trial, the plaintiff pressed his motion for a physical examination of the defendant and argued that it should be granted by the court. The court heard the plaintiffs motion at trial and denied it upon learning from the defendant that she had qualified for social security disability benefits. During the colloquy regarding the motion, the court questioned the plaintiff about the purpose of the requested examination when the defendant already had qualified for social security benefits. The plaintiff responded that his intent was "to refute that conclusion" that the defendant was disabled and, in particular, because he had not been a party to her examination for social security benefits eligibility. The court replied, "Well, I don't review what [the Social Security Administration] does. My policy has always been [that] if somebody qualifies for social security, as far as I'm concerned they're not in the labor market." The plaintiff argued that he was not trying to make a point as to whether the defendant was in the labor market at that time; he claimed, rather, that "the whole issue has to do with the duration of alimony under [General Statutes § 46b-82]." The court then denied the motion.

During the trial itself, the court articulated its denial of the plaintiffs motion for a physical examination. The court stated, "I'll tell you what. I can tell you what I said. If you qualify for social security disability, you are not able to work, and that's my position. I don't review what [the Social Security Administration] has ruled on. As far as I'm concerned, she may have minimal working ability, but that's as far as it goes because she's still collecting social security. They can have her reviewed if they think she should go back to work as of today, if she got a check for last month, and she hadn't received any notice that she's been withdrawn from social security then, as far as I am concerned, she's disabled and that's the end of that. You don't have to belabor it."

The defendant also testified at trial that she believed that her illness caused the dissolution of the parties' marriage. When the plaintiff objected to the testimony on the ground that there had not been any evidence presented regarding the defendant's illness, the court responded, "We don't have to. We know that she is on social security disability. She didn't get there out of the grace of God. All right."

After rendering its judgment dissolving the marriage on the ground of irretrievable breakdown, the court entered certain other orders. It ordered that the defendant retain real estate in Stamford, where the parties had resided. It ordered that the plaintiff pay to the defendant, as periodic alimony, the sum of $400 weekly "until the death of either party, the remarriage of the defendant or future court order." Having taken judicial notice of the court file in a separate action that was filed by the defendant to recoup an investment, the court ordered that because the plaintiff and the defendant each had contributed $80,000 to that investment, each party was to be the sole owner "of all rights arising out of $80,000 of the investment with the [defendants in that action]." Further, it ordered that the escrowed tax refunds be divided equally (after paying the tax preparer) and that certain items of personalty be returned to the plaintiff. The remaining assets on the parties' financial affidavits were to be retained by each party, and each party was to be solely responsible for the liabilities listed on the respective affidavits. This appeal followed.

I

"The standard of review in family matters is that this court will not disturb the trial court's orders unless it has abused its legal discretion or its findings have no reasonable basis in fact... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented." (Internal quotation marks omitted.) Werblood v. Birnbach, 41 Conn. App. 728, 730, 678 A.2d 1 (1996). In reviewing "a trial court's exercise of its broad discretion in domestic relations cases, [we are] limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did ... Moreover, we do not retry the facts.... In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action." (Emphasis added; internal quotation marks omitted.) Lowe v. Lowe, 47 Conn. App. 354, 361, 704 A.2d 236 (1997); see Bender v. Bender, 60 Conn. App. 252, 256, 758 A.2d 890, cert. granted on other grounds, 255 Conn. 914, 763 A.2d 1037 (2000).

We turn first to the plaintiffs claim that the court abused its discretion in making its financial orders because it precluded him from contesting the defendant's assertion as to the condition of her health, which the plaintiff claims was a material factor in the court's fashioning of the alimony order. The plaintiff further contends that the court, in effect, concluded that the defendant was disabled without any evidence to support such a determination and improperly created an irrebuttable presumption that she was disabled on the basis of her receipt of social security benefits.⁶

Our alimony statute is set forth in § 46b-82.⁷ In determining whether to award alimony, that statute requires the court to consider a number of factors, including the health of the parties. "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria." (Internal quotation marks omitted.) O'Neill v. O'Neill, 13 Conn. App. 300, 306, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); see Watson v. Watson, 20 Conn. App. 551, 555, 568 A.2d 1044 (1990). Our Supreme Court has stated that "health is a material factor in awarding alimony." McGuinness v. McGuinness, 185 Conn. 7, 10-11, 440 A.2d 804 (1981); see Gallo v. Gallo, 184 Conn. 36, 49, 440 A.2d 782 (1981).⁸ "A party's health is one of the factors which draws its significance, in part, from the impact it necessarily...