Whitney v. Whitney

• Decision Date: 04 May 1976
• Citation: 171 Conn. 23,368 A.2d 96
• Court: Connecticut Supreme Court
• Parties: Pauline Frances WHITNEY v. Robert Harding WHITNEY. Robert Harding WHITNEY v. Pauline Frances WHITNEY.

Page 96

368 A.2d 96

171 Conn. 23

Pauline Frances WHITNEY v. Robert Harding WHITNEY.

Robert Harding WHITNEY v. Pauline Frances WHITNEY.

Supreme Court of Connecticut.

May 4, 1976.

Mary V. McCarthy, Hartford, for the appellant (plaintiff in the first case and defendant in the second case).

Michael E. Grossmann, Hartford, with whom was William J. Butler, Hartford, for the appellee (defendant in the first case and plaintiff in the second case).

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

LOISELLE, Associate Justice.

In the first-named action, the plaintiff wife, by complaint dated July 22, 1971, sought a divorce, custody of minor children, child support and alimony from the defendant husband. In the second-named action the husband as plaintiff, by complaint dated July 26, 1972, sought possession of and legal title to real and personal property held in the name of the wife. The cases were referred to Hon. Samuel S. Googel, a state referee, and were heard together. The parties' trial counsel agreed that the evidence adduced would apply to both actions. Judgment in both actions was rendered on June 13, 1973. In the first action the state referee, exercising the powers of the Superior Court and hereinafter referred to as the court, granted the wife a divorce, awarded her custody of the two minor children, ordered the husband to make child support and alimony payments and determined the parties' rights in two joint savings accounts. In the second action the court ordered the wife to convey to the husband certain real property and to transfer to him certain shares of stock. The wife has appealed from both judgments including therein as error the denials of motions to open those judgments. The first-named action will be considered first, them the second-named action, and finally the denials of the motions to open the judgments arising from both actions.

The following is a summary of facts, found by the court, sufficient to discuss the issues presented in the first action. The parties were married in 1942. At the time of judgment, the parties had two minor children, both of whom resided with the wife.

The wife owned the house the family lived in. The house and its furnishings were valued at $95,000. The wife also, held title to two parcels of Florida land purchased in 1965 or 1966 for $5000, held stock in her name valued at $16,035, and had bank accounts with $11,896 on deposit. The house, the land and the shares of stock were purchased with the husband's earnings.

The parties owned jointly shares of stock valued at $36,556 and United States government bonds valued at $1800. Further, the parties had $32,800 in joint savings accounts before the wife closed them out when difficulties developed between the parties. The jointly owned shares of stock and bonds and the joint savings accounts were directly attributable to the husband's earnings.

The husband is an engineer who earns his income from the management and ownership of Production Services Corporation, a company he organized in the 1940's. In the last few years Production Services has been seriously affected by economic conditions and it is in financial difficulties. At the time of the judgment the husband's gross monthy income was $1200 and his net monthly income was $1000. The court also found that the husband will receive approximately $33,500 as his share of his deceased father's estate.

The court concluded that the husband was guilty of intolerable cruelty to the wife and awarded custody of the two minor children to the plaintiff. As alimony the husband was ordered to transfer to the wife all jointly owned bank deposits, securities and bonds, and, as additional alimony, to pay $500 per month. The husband was also ordered to pay $300 per month for the support of the two minor children and to maintain C.M.S. and Blue Cross insurance, or the equivalent, for their benefit. The court ordered the proceeds of the two joint savings accounts closed out by the wife to be shared equally by the parties. The wife asserts that the referee erred by failing to award a higher amount of alimony and child support, by ordering her to reimburse the husband for one-half of the proceeds of the joint savings accounts and by finding and failing to find certain facts.

The first twenty-four paragraphs of the wife's assignments of error in the first case are claims that the facts found were not substantiated because they were based solely on the testimony of the husband. 'It is futile to assign error involving the weight of testimony or the credibility of witnesses. Hartford-Connecticut Trust Co. v. Putnam Phalanx, 138 Conn. 695, 699, 88 A.2d 393.' West Hill Construction Corporation v. Horwath, 149 Conn. 608, 612, 182 A.2d 919, 921.

Thirty-six paragraphs of the wife's assignments of error relate to the court's failure to adopt certain draft findings. These paragraphs refer to the domestic life of the parties, the extramarital involvment of the husband, his sentencing for criminal activity during the marriage, and the aid the wife rendered to help the husband achieve what sucess he had in his business in the early years. The court did find intolerable cruelty on the part of the husband and some of the facts claimed are included in the finding of the second case. The wife has failed to show that the remaining paragraphs of the draft finding were admitted or undisputed. Gordon v. Indusco Management Corporation, 164 Conn. 262, 264, 320 A.2d 811; Walsh v. Turlick, 164 Conn. 75, 77, 316 A.2d 759. Twenty-four paragraphs assign error in that part of the finding pertaining to a motion to open the judgment which will be considered later.

' The primary basis for an award of alimony has been not to punish a guilty spouse but to continue the duty to support the other who, in legal contemplation, was abandoned.' Tobey v. Tobey, 165 Conn. 742, 748, 345 A.2d 21, 25. In awarding alimony, the court exercises its sound discretion taking into consideration the circumstances of the case such as the amount of the estate of the spouse, his or her income, age, health and earning capacity; and the age, health, station, separate estate and earnings of the party to be granted alimony. Tobey v. Tobey, supra; Heard v. Heard, 116 Conn. 632, 636, 166 A. 67. ¹

The total assets of the wife after judgment were in excess of $161,000. The additional award of alimony amounted to $500 out of the $1000 monthly net imcome of the husband. The wife contends the award was too small considering the standard of living to which she had become accustomed. She asserts that her manner of living requires an award of $500 per week. She also asserts that her husband at one time earned $60,000 a year and has a high earning capacity for the future, and that he is able to, and should be required to, pay her $500 per week. An award based on earning capacity rather than actual earned imcome is correct in the proper case, especially where one has wilfully depleted his or her earnings in an attempt to deny or limit the amount of alimony paid to a former spouse. See Tobey v. Tobey, supra, 749; Yates v. Yates, 155 Conn. 544, 548-49, 235 A.2d 656. In this case there is no finding that the husband voluntarily or wilfully depleted his earnings, or that his earning capacity was other than that found by the court. Taking into consideration the earnings of the husband, the assets of both parties at the time of the hearing, and the other circumstances found, the court did not abuse its discretion in its determination of the amount of alimony awarded to the wife. LaBella v. Labella, 134 Conn. 312, 318, 57 A.2d 627.

To determine the amount of support required by minor children, the court considers the needs of the children and the respective abilities of the parents to maintain them. ² The wife contends that the support of the children, in the manner to which they had become accustomed, would require $1031.68 per month. The husband was ordered to pay $300 per month out of his $1000 net monthly imcome. Based on the respective abilities of the parents, including the husband's earning capacity, discussed above, the court did not abuse its discretion in its award of child support. ³ Shrager v. Shrager,144 Conn. 483, 486, 134 A.2d 69.

That part of the judgment ordering the parties to share equally the proceeds of the joint savings accounts was proper. In view of the disposition of the other property in the judgment and the source of the funds in the accounts, the court did not abuse its discretion.

In the second case, the husband brought an action against his wife claiming all assets held by his wife wholly or jointly with him. The court found a resulting trust in favor of the husband of real and personal property held by the wife in her name limited to 200 shares of stock in Production Services Corporation, 500 shares of stock in Bo-Pak Corporation and the real property located at 33-35 East Cedar Street, Newington, Connecticut. All other assets were retained or awarded to the wife as alimony in the divorce action. The court made a finding in this case including facts previously referred to in the first action.

The court's finding in the second action is, in part, as follows: In the 1940's, the husband founded Production Services Corporation with two other persons. By the early 1950's the husband was the sole owner of the company. At that time fourteen shares of stock had been issued. By law, a corporation required three directors. ⁴ To meet this requirement the wife was made a director of the company. As the corporate bylaws required a director to be a stockholder, two shares of stock were assigned to her from the corporation. The wife was informed that the stock was put in her name because it was necessary. Even though the wife paid no consideration for the shares of stock, the husband never intended to make a gift of them. Furthermore, there was an agreement between the husband and wife that the shares of...