Varley v. Varley

• Decision Date: 15 March 1983
• Parties: Alan R. VARLEY v. Nina B. VARLEY.
• Court: Connecticut Supreme Court

Page 1065

457 A.2d 1065

189 Conn. 490

Alan R. VARLEY v. Nina B. VARLEY.

Supreme Court of Connecticut.

Argued Oct. 7, 1982.

Decision Released March 15, 1983.

Nina B. Varley, pro se, the appellant (defendant).

Joel M. Ellis, Glastonbury, with whom, on the brief, was Edward S. Hyman, Hartford, for appellee (plaintiff).

Before PETERS, SHEA, COVELLO, SPADA and HENNESSY, JJ.

COVELLO, Associate Justice.

On August 28, 1972, the plaintiff obtained a divorce from the defendant. As an incident to the decree, the state referee set out to the plaintiff a one-half interest in the former marital home at 63 Edward Street, Newington, which interest he had quitclaimed to his wife during the term of their marriage. The validity of that ruling and other matters concerning this divorce were thereafter reviewed by this court and no error was found. Varley v. Varley, 170 Conn. 455, 365 A.2d 1212 (1976); Varley v. Varley, 180 Conn. 1, 428 A.2d 317 (1980); Varley v. Varley, 181 Conn. 58, 434 A.2d 312 (1980).

The plaintiff commenced the present action seeking a sale of the Edward Street property and a division of the proceeds. Counsel appeared for the defendant and the pleadings were closed. The court thereafter granted the plaintiff's motion for partition by sale in accordance with a stipulation and proposed judgment submitted by the parties through their counsel. Pursuant to the judgment, the premises were then sold at public auction. The defendant was the high bidder.

The court approved, accepted and confirmed the committee's report and the proposed sale. A supplemental judgment entered in due course ordering distribution of the sale proceeds.

Within this procedural framework, there lie innumerable pleadings filed by the defendant pro se directed at every aspect of the proceeding. The docket sheet contains ninety-eight entries. From the underlying judgment and the almost uniform denial of each of her claims, the defendant has appealed. She advanced thirty-five claims in her preliminary statement of issues and has pursued fifteen of them on appeal. We find no error.

The defendant first claims error in the entry of the judgment authorizing the sale of the property. This order of sale was entered in accordance with a stipulation to that effect signed by the defendant's attorney. The general rule is that parties are bound by the procedural acts of their counsel. Monroe v. Monroe, 177 Conn. 173, 181, 413 A.2d 819, cert. denied, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967). The burden is on the party claiming otherwise, to prove that this should not be the case. Monroe v. Monroe, supra, 177 Conn. 182, 413 A.2d 819. The defendant asserted that the stipulated judgment was the product of a conspiracy and that she had not been informed. Despite her continued assertion of these otherwise uncorroborated claims, the trial court repeatedly rejected these essentially factual claims raised time after time throughout the course of the proceedings. The credibility of witnesses is a matter uniquely within the province of the trier. Corbin v. Corbin, 179 Conn. 622, 624-25, 427 A.2d 432 (1980).

The defendant next claims that the court erred in accepting the committee's report, confirming the deed and sale and allowing compensation for the committee. She argues in part, that the quitclaim deed, whereby she originally received the Edward Street property from her former husband, contained language prohibiting his ever reacquiring any interest in this property. ¹ She claims, therefore, that no interest should have been set out to him in the divorce. This being the case, she further claims that there was no basis in the present action for the order directing the sale of the property.

The language in the deed, which forever bars the grantor from claiming any right or title in the quitclaimed premises is the traditional language found in such deeds. It serves to extinguish any interest which the releasor may have in the real estate up to the time he tenders the instrument. It does not act as a bar to the releasor thereafter reacquiring an interest in the property from some other source such as an equitable decree incident to a divorce action. See Smith v. Groton, 147 Conn. 272, 276, 160 A.2d 262 (1960); Dart v. Dart, 7 Conn. 250, 256 (1828).

The defendant further claims that she was erroneously barred from giving evidence as to moneys and other consideration which she had given her former husband at the time he quitclaimed the property to her. The parties' legal interests in the Edward Street property, considerations given therefor, and the eventual declaration of their respective equitable interests in the land are all matters which were properly the subject of the divorce proceedings. The divorce action was previously reviewed by this court and no error was found. Varley v. Varley, 170 Conn. 455, 365 A.2d 1212 (1976). Any claim to a greater interest in the land based on matters which predate the divorce decree is now barred by the doctrine of res judicata. Lechner v. Holmberg, 165 Conn. 152, 155, 328 A.2d 701 (1973).

The defendant next challenges as unreasonable the amount of the fee awarded the committee. The reasonableness of committee fees is a matter within the sound discretion of the court. It is only in the case of a clear abuse of discretion by the trier that we may interfere. Hoenig v. Lubetkin, 137 Conn. 516, 525, 79 A.2d 278 (1951). Such is not the case here. Examination of the record discloses that the final bid price was $41,000. The report of the committee discloses numerous calls from the defendant, arrangements for advertising, placement of a sign, the receipt of telephone inquiries concerning the property, the conduct of an auction sale with forty to forty-five persons present, preparation of a bond for deed, preparation of a deed and representation at closing. We conclude that these facts constituted an adequate factual basis to support the finding of $2500 as reasonable compensation for the committee.

The defendant next claims that the court erred in connection with a prospective ruling concerning the scope of evidence to be introduced at a hearing on a motion for supplemental judgment and determination of priorities. Examination of the record discloses that the court granted a motion to determine priorities and assigned the matter for future hearing. In assigning the hearing, the court issued a memorandum in which it stated that evidence as to capital improvements at the later hearing would be limited to the time period from the date of the divorce to the date of sale, any earlier considerations now being res judicata by virtue of the earlier divorce decree. The defendant claims that she was thereby prevented from introducing relevant evidence concerning the parties' respective financial contributions to the purchase of this property, subsequent capital improvements and the matter of the quitclaim deed previously discussed.

There is nothing in the record, the briefs or the appendix that indicates that the defendant ever offered such evidence, that an objection thereto was sustained or, in fact, that such a hearing as ordered in the memorandum ever took place. Consequently, this claim presents nothing for this court to review. In order to raise properly such an issue before a reviewing authority, the appellant's brief must include the question or offer of exhibit, the objection and the ground upon which it was based, the ground upon which the evidence was claimed to be admissible, the ruling and any exception thereto. Practice Book § 3060F(c)(3).

The defendant further claims error in the court's ruling with respect to her motion for disclosure and production. Examination of the record reveals that such a motion was filed on September 27, 1976. An objection was filed on October 5, 1976. There is no record, however, of any ruling on this objection or the motion to which it was directed. Again, this claim presents nothing for this court to review.

The defendant next argues that the court erred in denying her motions to reopen and vacate dated January 31, 1977, and February 9, 1977, respectively. Both of these motions address again the issue of the language in the quitclaim deed given to the defendant by her former husband and the issue of the authority of her attorney to join in the motion for judgment by stipulation. These motions, their subject matter having been addressed and decided at an earlier stage in the proceedings, were properly denied as being a wasteful repetition. "Parties cannot be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings." Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40 (1904).

The defendant next claims that the court erred on March 9, 1979, in taking up her claim for a jury trial, when such a matter was not assigned on that day's court calendar for hearing. Examination of the record discloses that the defendant agreed to have this matter heard, ² and we find no error in the court having done so.

The defendant next claims that the court erred in denying her claim for a jury trial. General Statutes § 52-500 makes it clear that court ordered sales of real property are equitable proceedings, ³ and we have so held. Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960). General Statutes § 52-218 provides that the court may order factual issues in equitable proceedings to be tried by a jury of six. ⁴ Use of the permissive language "may" connotes a clear legislative intent to authorize the court to exercise its discretion on this matter. The defendant claims no abuse of this discretion nor does the record disclose this to be the case. Therefore, we find no error in the court's refusal to order this matter tried to a jury.

The defendant next claims that the court erred in denying...