Wood v. Wood

• Decision Date: 23 January 1974
• Citation: 165 Conn. 777,345 A.2d 5
• Court: Connecticut Supreme Court
• Parties: Nancy H. WOOD v. Robert D. WOOD.

Page 5

345 A.2d 5

165 Conn. 777

Nancy H. WOOD v. Robert D. WOOD.

Supreme Court of Connecticut.

Jan. 23, 1974.

Robert B. Snow, Jr., New Haven, for appellant (plaintiff).

David Goldstein and Michael A. Meyers, Bridgeport, with whom, on the brief, was Daniel D. Peck, Bridgeport, for appellee (defendant).

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

SHAPIRO, Associate Justice.

In 1970, the plaintiff brought an action against the defendant seeking a divorce, custody of and support for their minor children, alimony and counsel fees. The referee to whom the case was referred, acting as the court, granted the divorce, awarded custody of the children to the plaintiff with rights of visitation to the defendant, entered orders for alimony and an allowance for support of the children, and awarded counsel fees. From a judgment rendered thereon, the plaintiff has appealed to this court. The plaintiff assigns error to the overruling by the court of her claims of law and to the court's striking from the finding two paragraphs which she claims were admitted or undisputed.

The court found in two paragraphs of its finding that the plaintiff and defendant resided in California until July of 1967 and that their assets were substantially the same then as they were when this divorce action was brought. Pursuant to Practice Book § 623, the defendant filed an assignment of errors claiming that the court erred in finding these facts without evidence. Thereupon, the court corrected its finding by ordering these paragraphs stricken. The plaintiff contends that there is no question of credibility involved here, and, as we understand her claim, that following the defendant's assignment of errors, and initially having included the two paragraphs in its finding, the court was precluded from reconsidering whether the two paragraphs should be stricken since the facts therein were admitted or undisputed.

In order to prevail, the plaintiff must point to some part of the appendices to the briefs, the pleadings, or an exhibit properly before us, which discloses that the defendant admitted that the fact in question was true or that its truth was conceded to be undisputed. LaReau v. Warden, 161 Conn. 303, 304, 288 A.2d 54; Brauer v. Freccia, 159 Conn. 289, 290, 268 A.2d 645; Cohen v. Holloways', Inc., 158 Conn. 395, 397, 260 A.2d 573; Maltbie, Conn.App.Proc. § 158. That a fact was testified to and was not directly contradicted by another witness is wholly insufficient. Practice Book § 628(a); Brauer v. Frecci, supra; Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619. The trier is the judge of the credibility of witnesses. LaReau v. Warden, supra; Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534, and cases cited. There is no evidence in either appendix to show that the plaintiff and the defendant resided in California until July of 1967. The evidence in the plaintiff's appendix discloses that she testified that their assets, when they came to Connecticut, were substantially the same as they are now. The appendix to each party's brief also contains the financial statement of that party, and both statements were subscribed and sworn to on January 13, 1972, the day on which the court heard the plaintiff. An examination of the evidence in the appendices fails to disclose that, as a matter of law, the court was required to accept that portion of the plaintiff's testimony simply because she so testified from the witness stand.

Practice Book § 623 provides, in part, for the filing of 'an assignment of errors directed to the finding of any fact . . ., in accordance with the provisions of Secs. 612 and 622.' Section 612 relates to the filing of an assignment of errors with an appeal, and § 622 provides for the errors in a finding which may be assigned. Section 626 provides, in part, that corrections in a finding may be made by the trial court in 'such paragraphs of the finding as it finds incorrect.' Section 628(c) permits the correction of findings of fact upon the finding of a material fact without evidence. Pursuant to the defendant's assignment of errors, the court acted within the proper scope of its authority in ordering stricken the two contested paragraphs of its finding.

The plaintiff made the claim 'that she was entitled to a lump sum payment of $459,000 representing her interest in the parties' community property when they left California and moved to Connecticut, in addition to periodic alimony,' which the court overruled and to which the plaintiff has assigned error. The plaintiff contends that she is entitled to certain benefits based on the community property law under the California Civil Code which she seeks to have this court judicially notice and apply to the present case. Neither the record nor the plaintiff's brief or its appendix discloses that the plaintiff, during the trial, sought to have the court take judicial notice of the California law. 'It is important to point out, however, that the court need not take judicial notice of the law of a foreign jurisdiction, whether common law or statutory, under General Statutes §§ 51-32, 52-163 and 52-164, unless authoritative sources of the foreign law, subject to inspection or verification by opposing counsel, are made available to the court by reference or otherwise, under the usual rules for judicial notice.' Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 475, 208 A.2d 341, 345. 'Matter which it is claimed the court should judicially notice should be called to its attention by the party seeking to take advantage of the matter so that, if there is ground upon which it may be contradicted or explained, the adverse party will be afforded an opportunity to do so.' State ex rel. Capurso v. Flis, 144 Conn. 473, 477-478, 133 A.2d 901, 903; see also Angier v. Barton, 160 Conn. 204, 211, 276 A.2d 782. The plaintiff has failed properly to raise the issue regarding the application of California law. Accordingly, in such a situation, the California law need not be judicially noticed and the trial court was therefore entitled to determine the amount of an award of alimony, support of children and other relief according to our law. Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418; Stenz v. Sandstrom, 143 Conn. 72, 76, 118 A.2d 900.

The plaintiff made the further claim 'that she was reasonably entitled to one-half of the parties total assets, that is, a lump sum payment of $388,000 in addition to periodic alimony,' which the court overruled and which the plaintiff assigns as error. The court found the following unchallenged facts: The parties, just having graduated from college, had no assets and were married in California in 1949, where the defendant worked as an usher at the Columbia Broadcasting System (CBS) in Los Angeles. They have two minor children, Virginia, born in 1952, and Dennis, born in 1955. The parties have resided continuously in Connecticut since July of 1967. The defendant has been employed continuously since commencing as an usher and is now president of the CBS television network, where he receives a gross salary of $95,000 per year, an annual bonus of $16,000 and other income of $20,000 a year. He has bank accounts totaling $51,250, securities with a net value of $324,605, a real estate investment of $50,000, other net assets of $85,500, and interests in a pension fund, deferred compensation plan and investment fund of $335,500. Of this amount he inherited $83,000 and his equity interest in their Greenwich home is $71,000. The plaintiff has an equity...