Varley v. Varley

• Decision Date: 30 March 1976
• Citation: 170 Conn. 455,365 A.2d 1212
• Court: Connecticut Supreme Court
• Parties: Alan R. VARLEY v. Nina B. VARLEY.

Page 1212

365 A.2d 1212

170 Conn. 455

Alan R. VARLEY v. Nina B. VARLEY.

Supreme Court of Connecticut.

March 30, 1976.

Joseph B. Lukas, New Haven, for appellant (defendant).

Joel M. Ellis, Hartford, with whom, on the brief, was Donald J. Cantor, Hartford, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BOGDANSKI, Associate Justice.

The plaintiff, Alan R. Varley, brought this divorce action on the ground of intolerable cruelty. The defendant, Nina B. Varley, contested the action, filed a counterclaim seeking a divorce on the ground of intolerable cruelty, and moved for alimony pendente lite and counsel fees. The matter was referred to a state referee, who, exercising the powers of the Superior Court, awarded the plaintiff a divorce, denied the motion for alimony and counsel fees, and ordered a reconveyance to the plaintiff of a one-half interest in property located in Newington. From the judgment rendered the defendant has appealed, assigning error in virtually every ruling and determination made by the court. Only those claims which are briefed will be considered. Fleischer v. Kregelstein, 150 Conn. 158, 159, 187 A.2d 241 ; West Realty Co. v. Ennis, 147 Conn. 602, 603, 164 A.2d 409.

The first claimed error concerns the denial of alimony pendente lite and counsel fees. The defendant claims that the sole ground relied upon by the court for the denial was the fact that her assets were substantially greater than those of the plaintiff. She contends that in reaching its decision, the court abused its discretion by not confining its consideration only to the plaintiff's income, as required by § 46-21 of the General Statutes, as then in effect.

To review a claim that the court abused its discretion, we must have before us the conclusions of fact upon which the ruling is predicated. New England Floor Covering Co. v. Architectural Interiors, Inc., 159 Conn. 352, 358, 269 A.2d 267. The finding does not reveal whether the ruling was based upon the plaintiff's income or upon the appreciable difference in the assets owned by the parties. The defendant made no request for a finding concerning those issues, nor did she raise any claims of law at the trial with respect to them. To support her contention, however, the defendant refers us to the memorandum of decision. The memorandum of decision is not a part of the finding and cannot be used to supplement it. American Can Co. v. Orange Pulp Co., Inc., 149 Conn. 417, 422, 180 A.2d 628. 'The cause is to be decided upon the facts found, not upon those contained in the memorandum of decision.' Stults v. Palmer, 141 Conn. 709, 711, 109 A.2d 592, 593, quoting from Turner v. Connecticut Co., 91 Conn. 692, 696, 101 A. 88. Since no claims of law were raised at the trial, and since there is nothing in the finding or judgment file to indicate that the court abused its discretion in denying the defendant's motion, it is presumed that the court acted properly. Maltbie, Conn.App.Proc. § 311.

The defendant next claims that there was extensive uncontradicted testimony to the effect that the plaintiff physically and verbally abused the defendant, and that the court therefore erred in concluding that the plaintiff's conduct did not constitute intolerable cruelty. There is nothing in the finding which would support the conclusion that the plaintiff's conduct amounted to intolerable cruelty. Moreover, we are provided with no basis for making any additions to the finding to support that conclusion. 'That a fact was testified to and not directly contradicted by another witness is wholly insufficient' to secure an addition to the finding. Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634, 636. It is for the trier to judge the credibility of a witness. Stoner v. Stoner, 163 Conn. 345, 347, 307 A.2d 146; Salvatore v. Milicki, 163 Conn. 275, 277, 303 A.2d 734. We are unable, therefore, to disturb the court's conclusion.

The remaining issues briefed relate to the court's decree concerning the reconveyance of a home located in Newington. The finding discloses that the plaintiff and the defendant purchased the Newington home jointly with proceeds from the sale of a jointly owned home in Wethersfield, and that the plaintiff subsequently transferred his interest in the Newington home to the defendant for no consideration other than that of the marriage, love, and affection. The court, exercising its discretion pursuant to § 46-22a of the General Statutes, ¹ which has since been repealed, ordered title to a one-half interest in the home to pass to the plaintiff. General Statutes § 52-22.

The defendant first contends that the decree was erroneous because it awarded the plaintiff more relief than he had claimed. It is argued that although the plaintiff, in his original complaint, claimed a reconveyance of his just interest in the Newington property, he subsequently agreed to abandon that claim. This argument lacks merit. The court expressly found that the plaintiff sought a one-half interest in the Newington property, and there is no claim by the defendant that that fact was found without evidence. Moreover, there is nothing in the record which discloses that the plaintiff ever abandoned this claim.

The defendant next asserts that it was improper for the court to have invoked § 46-22a of the General Statutes because there was no support in the evidence for the conclusion that the plaintiff conveyed his interest in this property to the defendant 'in consideration of the marriage and love and affectionwhich he had for her at the time of the transfer.' 'Consideration of love and affection' is not 'legal' consideration which would support enforcement of a promise, but is a so-called good consideration founded on a duty or motive naturally presumed to exist. See 1 Williston, Contracts (3d Ed. Jaeger) § 110. See also Candee v. Connecticut Savings Bank, 81 Conn. 372, 378, 71 A. 551. Section 46-22a allows the court, in its discretion, to reconvey property previously transferred by the spouse granted the divorce, so long as that transfer was based upon that natural nuptial motive rather than 'legal' consideration. The court found as a subordinate fact that the plaintiff did not receive 'legal' consideration for the transfer of his interest in the property, and there is nothing in the record requiring that finding to be changed. In view of that finding and the fact that the parties were married at the time of the transfer, it was reasonable for the court to have inferred that the 'marriage, . . . love and affection,' as those terms were used in § 46-22a, induced the plaintiff to make the transfer.

The final claim concerns the method employed by the court in determining the interest in the Newington property to be reconveyed to the plaintiff pursuant to § 46-22a. The court found that the Newington home was bought jointly with funds received from the sale of a jointly held home in Wethersfield, and that, during the marriage, the plaintiff conveyed his undivided one-half interest in the Newington home to the defendant on consideration of the marriage, love, and affection. It ordered that that one-half interest be reconveyed to the plaintiff. The defendant...