Anderson v. Anderson
Anderson v. Anderson
Opinion of the Court
This is an appeal from the financial orders incident to the judgment dated January 19,1981, dissolving the eighteen year marriage of the parties and a post-decree supplementary judgment dated December 29,1981, awarding attorney’s fees to the plaintiff, Victor Anderson, to defend this appeal taken by the defendant, Betty Anderson.
The state trial referee’s, Hon. Raymond J. Devlin, memorandum of decision, dissolving the marriage and entering the financial orders, discloses, inter alia, the following: The parties were married on July 28, 1962,
In 1972, the plaintiff suffered a heart attack and the defendant gave up her professional career and assisted in the running of the business, preparing herself by going back to college for the required business courses.
In its decree of January 19, 1981, the trial court ordered that the family home “be sold on or before July 1,1981; that after payment of the mortgage and encumbrances on the property (including the $9797.44 debt owing from the plaintiff to the Union Trust) and the necessary expenses of closing — the net proceeds be divided forty percent to the plaintiff and sixty percent to the defendant.”
In her appeal the defendant asserts that, in the course of making its financial orders, the trial court made three factual determinations which are not supported by the evidence. The determinations she refers to are: (1) “The plaintiff bought the property (on which the family home is located), supervised and completely paid for the construction of the dwellings and then conveyed title to the defendant. All expenses in the purchase of the property and erection of the dwelling were paid by the plaintiff; there was no contribution by defendant; title was given to her free and clear. . . .” (2) “Defendant at the time [of the marriage] was a nationally celebrated harpist having toured the country giving concerts, appearing on radio and [television] shows and making her own record albums. . . . Defendant still has proficient skill as a harpist and is in a position to carry on with her music.” (3) “Apparently from contributions by [the defendant’s] family there is the possibility of the future acquisition of capital assets.” In her brief, she argues that she has appealed from the judgment because the financial orders of the trial court were based on these factual determinations which are not supported in the record. We will discuss these claims seriatim.
On her first claim, the defendant asserts that the trial court erred in failing to find that she had contributed to the acquisition, preservation and appreciation in
The next factual determination attacked as unsupported by the evidence is: “Defendant at the time [of the marriage] was a nationally celebrated harpist having toured the country giving concerts, appearing on radio and [television] shows and making her own record albums. . . . Defendant still has proficient skill as a harpist and is in a position to carry on with her music.” She does admit in her brief that she majored in music at Goucher College, that she supported herself by working at her music from 1952 to 1962 (a period after her first divorce and prior to the time of her marriage to the plaintiff), that she had appeared on television programs, that she has made three record albums as a soloist with the most recent in the 1960s and that she played one summer with Duke Ellington’s orchestra and went on tour with that orchestra for two months. She also maintains that after she married the plaintiff, she never made more than $163 at music in a single year. She admits that she has given lessons on the harp and she is capable of doing so “right now.” She also
The trial court’s memorandum observes that the case was “extensively tried”; our examination of the transcript bears this out. There was before that court from the defendant herself other evidence in this area. This included testimony that while she had made three albums as a soloist she had no idea how many records she played on as a “background musician,” as well as testimony of her having made television and radio commercials and having played on Broadway. There was also evidence where she admitted that Ruth Ellington is “always trying to push [my] career.”
Whether the defendant “was,” as the court stated, “a nationally celebrated harpist” presented a question of fact for the trier. Reasonable minds could differ on the evidence in a resolution of this question. There was, however, evidence which does support this determination and, therefore, it is not clearly erroneous. Practice Book § 3060D. The same can be said of the court’s statement that she still has proficient skill as a harpist and is in a position to carry on with her music.
One further matter should be addressed before we leave this aspect of her claim. Her brief suggests that the trial court concluded as it did “about the defend
We do not think Schmidt is apposite here. Actually, the question posed to us in Schmidt was: “When an award of alimony . . . is to be based upon earning capacity, what type of evidence is required to support that award?” Schmidt v. Schmidt, supra, 190. In that case we found erroneous the trial court’s order directing the defendant husband, who once had earned a substantial income as a commodities broker, to pay alimony and support where there was no evidence of any specific amounts of income. In addition, there was no evidence of the typical salary of a commodities broker of that defendant’s ability and experience. Schmidt v. Schmidt, supra, 190-91. The defendant here has turned Schmidt around. In Schmidt, we required sufficient evidence of earning capacity to pay an alimony or support order to be demonstrated as a requisite to the validity of such an order. No such order was entered in this case. Even if we assume arguendo that it could be pertinent, the evidence from the defendant herself also disclosed that the defendant had had about eight years experience in the business world since 1972, had taken a number of business and tax courses and had run the Victor Anderson 3D Studios, Inc., from 1972 until at least 1978 or 1979. The same court also heard her testify that although she was out of work since 1978 she had made
Finally, the defendant attacks the court’s determination that stated: “[Apparently from contributions by [the defendant’s] family there is the possibility of the future acquisition of capital assets.” This attack, likewise, lacks merit. In pressing this claim the defendant points to evidence that her mother and brother had contributed to the household and business expenses and argues that there was no testimony that the monies advanced were intended to be anything but loans. She maintains that to support the attacked determination there should be evidence that her family’s means are sufficient to afford contributions that would enable her to acquire capital assets and that there was a likelihood that she would receive such contributions. Indeed, in arguing that there was no evidence of this nature the defendant refers to her brother’s statement that he was not prepared even to support her.
At the outset, we examine literally the language attacked. If anything, it is largely both cautious and tentative as it says “apparently” from family contributions there is the “possibility” of future acquisition of capital assets. It is true that the defendant and her brother testified that monies involved were loans; yet the court did also use the term “contributions by her family.” It is settled that evidence, although uncontradicted, need not be believed. Sachem’s Head Assn. v.
The defendant’s claim that the three factual determinations attacked are not supported by the evidence is rejected. From what we said, there was ample evidence to support each of them. Scherr v. Scherr, 183 Conn. 366, 369, 439 A.2d 375 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221-22; cf. Schmidt v. Schmidt, supra, 190-91. As to each determination, there was evidence which, if believed, provided an adequate basis for each of the three conclusions actually reached; that is all that is required. Hardisty v. Hardisty, 183 Conn. 253, 256, 439 A.2d 307 (1981). In passing, we again point out that “[w]ith respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981); Fattibene v. Fattibene, 183 Conn. 433, 442, 441 A.2d 3 (1981); deCossy v. deCossy, 172 Conn. 202, 204, 374 A.2d 182 (1977).” Venuti v. Venuti, 185 Conn. 156, 161, 440 A.2d 878 (1981). Moreover, “the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); see Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982).
“Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion.” El Idrissi v. El Idrissi, 173 Conn. 295, 301-302, 377 A.2d 330 (1977) (counsel fees on appeal); Krasnow v. Krasnow, 140 Conn. 254, 262, 99 A.2d 104 (1953) (counsel fees on appeal). “ ‘Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds.’ ” Fitzgerald v. Fitzgerald, 190 Conn. 26, 30, 459 A.2d 498 (1983), quoting Koizim v. Koizim, 181 Conn. 492, 500-501, 435 A.2d 1030 (1980). In making its determination regarding attorney’s fees on appeal, we deem it appropriate for the court in the exercise of its broad judicial discretion to consider the statutory criteria set out in General Statutes §§ 46b-62 and
This leads to a consideration of the matter of “ample liquid funds.” See, e.g., Fitzgerald v. Fitzgerald, supra; Koizim v. Koizim, supra, 501. “Whether a spouse has ‘ample liquid funds’ with which to pay counsel fees; see Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030 (1980); can only be determined by examining the total financial resources of the parties in light of the statutory criteria.” Venuti v. Venuti, supra, 163. A determination of what constitutes “ample liquid funds,” justifying the granting of a request for counsel fees on appeal, requires a consideration of whether the award so made would undermine the court’s prior financial orders. See Fitzgerald v. Fitzgerald, supra, 34. This makes necessary an examination of the total assets of the parties at the time the award is made. The award in question was made about four months after the case was tried and about two months postjudgment. Moreover, this award was entered just over six months after the filing of both parties’ most recent financial affidavits. In the judgment, the court had denied the defendant’s
There is no error in the judgment dated January 19, 1981; there is error in the supplementary judgment of December 29, 1981. The supplementary judgment is set aside with respect to counsel fees only. The case is remanded with direction to set a new date for the sale of the family home and to vacate the award of attorney’s fees.
In this opinion Peters, Parskey and F. Hennessy, Js., concurred.
The defendant, acting pursuant to Practice Book § 3062, amended her appeal, for the purpose of obtaining review of the post-decree award of attorney’s fees to the plaintiff.
The evidence was that prior to the marriage the plaintiff purchased this land upon which a house was built in 1961.
The defendant was a graduate of Goucher College where she majored in music. After going into the business, she took and successfully completed courses in business law, accounting, personal income tax, corporate income tax and speech.
The evidence indicates that from about 1973 until the time of trial the defendant received financial assistance from her family not only for the business but for household purchases.
Although it does not appear in the memorandum of decision, there appears no question that the plaintiff left the family home in October, 1978.
In its memorandum, the court, just prior to the language ordering the sale on or before July 1,1981, stated: “In the event a financial settlement between the parties is not accomplished by April 1,1981, an order will enter transferring a one-half interest in the property at Dancing Bear Road, Rowayton, to the plaintiff . . . .”
The defendant filed her appeal on February 5, 1981. On February 28, 1981, the plaintiff filed his motion to terminate the stay of execution with respect to order of sale on or before July 1,1981. The court, denied his motion on April 3, 1981.
The memorandum specifically provided that “[n]o order will enter relative to the transfer of the stock owned by the plaintiff.” The plaintiff owned 99 percent of the stock in Victor Anderson 3D Studios, Inc., and the defendant owned 1 percent. Each party listed no value for such stock in their most recent financial affidavits prior to the decree.
In 1963, the plaintiff conveyed a one-half interest in the property to the defendant. In 1972, he conveyed the balance of the title to her.
The warranty deed indicates that there were grants for utility services, certain rights of others in a stream on the property, as well as certain restrictive covenants.
Although the trial court did not make a finding of the value of the property, the memorandum points out that her financial affidavit of January 11, 1980, lists the value at $200,000, whereas her affidavit of September 24, 1980, lists the value as $172,500. It comments that “[t]here was evidence at the trial that the fair market value was $238,300 [this was the figure testified to by the appraiser called by the plaintiff; the appraiser called by the defendant testified to value as being $155,000].” The memorandum, however, also states: “The disputed amount of equity would be over 8100,000.”
There was evidence that her brother Jack Glamann also became personally obligated on the note at that time.
The argumentation on this last point is that “Duke Ellington toured the country giving concerts, and that the defendant had accompanied him as a member of the orchestra.”
There was evidence that the defendant still maintains her membership in the musicians’ union and that she is “always looking for a job playing the harp.”
On direct examination of Jack Glamann the following took place: “Q. Are you prepared to support your sister [the defendant] for the rest of her life?
“A. No.”
There was evidence that sometime before the parties separated Jack Glamann, the defendant’s brother, advanced the sums of $50,000, $10,000 and $1000 to assist in the business. These sums are secured by an U.C.C. Article 9 security lien in certain assets of the corporation, i.e., Victor Anderson 3D Studios, Inc. He is the major creditor of the corporation. When the defendant mortgaged the family home in 1974 for $60,000, Jack Glamann joined her in signing the mortgage note. Practically all the avails of that sum, however, went into the business. He also testified that, unlike the monies for which he was protected by the U.C.C. Article 9 security lien, he had not been given any note for the other monies forwarded to her although he had asked the defendant for a note.
The defendant herself testified that her mother “[rjecently . . . sent me $4000,” which she said was for corporate and personal bills.
At the same time, the trial court also heard the plaintiff’s motion to terminate the stay of execution and to permit the property to be sold prior to July 1,1981, as well as his motion seeking to restrain the defendant from transferring or encumbering this property. The court denied the former motion and granted the latter. That hearing also disclosed that the plaintiff had placed a $100,000 attachment on this property.
The transcript of that hearing does disclose that the plaintiff did state that he was then averaging about $270 per week.
The court’s conclusion there stated: “Under the facts presented in this case there is no basis for the award of counsel fees. Murphy v. Murphy, 180 Conn. 376, 381, 429 A.2d 897 (1980).”
Dissenting Opinion
(dissenting). I disagree with the conclusion of the majority that the findings related to the earning capacity of the defendant wife and her opportunities for future acquisition of capital assets are adequately supported by the evidence.
The inappropriateness of the hyperbole, “nationally celebrated harpist,” as applied to the defendant or any other virtuoso of that instrument of recent memory is of small concern. Of more serious import is the assumption of the majority that after twenty years of inactivity as a professional musician during the marriage the defendant has a realistic prospect of supporting herself in a changed musical world where a harp has become a curiosity. In Schmidt v. Schmidt, 180 Conn. 184,190, 429 A.2d 470 (1980), we held that evidence of the specific amount of income which could be earned was necessary in order to support an award of alimony and support based upon a husband’s earning capacity as a commodities broker. The record in this case is wholly devoid of any evidence of the potential earnings of the defendant if she were to “carry on with her music.” The attempt by the majority to distinguish Schmidt on the ground that there the husband had been ordered to pay fixed weekly amounts seems to imply that speculation rather than the normal standard of proof is permissible when our only concern is with the ability of a wife to meet her living expenses.
The conclusion of the majority that the finding of a “possibility of future acquisition of capital assets” by the wife can be based upon contributions of her mother and her brother to her support is also at variance with our precedents. In Schmidt v. Schmidt, supra, 188, we held that gratuities received in the past did not constitute a dependable source of funds upon which the court could rely. In Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978), evidence of the potential inheri
The fact that the judgment awarded the defendant 60 percent of the net proceeds of the sale of the residence, as compared with 40 percent to her husband, indicates that the trial court may not have relied greatly upon the findings which I regard as erroneous. The difference in the respective shares which the parties are to receive upon sale of the property would be at least $20,000 according to the finding of the trial court that their joint equity exceeded $100,000. This disparity may well have been intended as a substitute for periodic alimony to the wife during the remaining working life of the husband, who was sixty-eight at the time of trial and earned $262 per week after deductions. As such it seems quite reasonable under the circumstances. Nevertheless, it is not possible to ignore erroneous findings made by a trial court which may have influenced the final result. See McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982). We cannot be certain that the award would not have been more generous to the defendant in the absence of these disputed findings. Accordingly, I would find error and order a new trial.
Reference
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- Victor G. Anderson v. Betty Anderson
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