43 Conn. App. 659 | Conn. App. Ct. | 1996
In this appeal from the judgment of dissolution of his marriage, the defendant claims that the trial court improperly (1) found him at fault for the breakdown of the marriage, (2) ordered him to pay periodic alimony for eight years and (3) awarded the plaintiff an interest in his retirement benefits.
While the appeal was pending, the trial court issued a postjudgment order awarding the plaintiff counsel fees to defend the appeal. The defendant amended his appeal to add claims that the trial court improperly (4) failed to hold a meaningful hearing on the plaintiffs motion for appellate counsel fees and (5) deprived him of his constitutional right to cross-examine the plaintiff.
I
The record discloses that the plaintiff and the defendant were married on October 2, 1982, and that there were no children of the marriage. The defendant’s first two claims, regarding the breakdown of the marriage and the order to pay periodic alimony, clearly implicate the trial court’s fact-finding and discretionary functions. On appeal we do not retry the facts. Muller v. Muller, 43 Conn. App. 327, 682 A.2d 1089 (1996).
In domestic relations cases, our review of the trial court’s exercise of discretion is limited to whether it correctly applied the law and could reasonably have concluded as it did. Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987). Trial courts have a distinct advantage over an appellate court in domestic relations cases where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. Figlar v. Figlar, 174 Conn. 151, 153, 384 A.2d 1 (1978). Great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Rummel v. Rummel, 33 Conn. App. 214, 221, 635 A.2d 295 (1993).
Our review of the record, transcript and briefs reveals that the trial court properly considered the statutory criteria, the evidence and the financial affidavits of the parties. Accordingly, we conclude that the trial court did not abuse its discretion by finding the defendant at fault for the breakdown of the marriage and ordering him to pay periodic alimony.
In his third claim, the defendant argues that the trial court improperly awarded the plaintiff an interest in his retirement benefits. The defendant correctly points out that expectations of possible future interests are
II
The defendant next complains that the trial court improperly failed to conduct a meaningful hearing on the plaintiffs motion for counsel fees to defend the appeal. The plaintiff was unable to be present at the hearing on the motion because, as part of her studies at the University of Connecticut, she was attending a university in Germany for a semester. The trial court found that she lacked funds to return to the United States for the hearing.
The plaintiff did not file a new financial affidavit but relied on the affidavit she had submitted at the time of trial. Her mother, who held the plaintiffs power of attorney, testified that she was familiar with her daugh
It is axiomatic that parties to a marital action should not be deprived of their appellate rights because of lack of funds. Febbroriello v. Febbroriello, 21 Conn. App. 200, 204-205, 572 A.2d 1032 (1990). Whether to award counsel fees in a dissolution action is within the discretion of the trial court. Tessitore v. Tessilore, 31 Conn. App. 40, 44, 623 A.2d 496 (1993). There must be an adequate evidentiary basis, however, on which the trial court may exercise its discretion. Castro v. Castro, 31 Conn. App. 761, 769, 627 A.2d 452 (1993).
The defendant relies on Castro v. Castro, supra, 31 Conn. App. 770-71, and Bartley v. Bartley, 27 Conn. App. 195, 197, 604 A.2d 1343 (1992), for the principle that “[i]t is a fundamental tenet of due process oflaw as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. ” (Internal quotation marks omitted.) Bartley v. Bartley, supra, 197-98. Those cases are distinguishable from the present case because in both Castro and Bartley the court modified or awarded counsel fees without any hearing whatsoever. Here, the trial court conducted a hearing and the gravamen of the defendant’s claim is that the evidence the trial court received at that hearing was insufficient to support an award of counsel fees.
We have previously held that where there has been a hearing on financial issues at the time of trial, the trial court may be deemed to have sufficient information to award counsel fees to defend an appeal. Tessitore v. Tessitore, supra, 31 Conn. App. 44. In Tessitore, we did not ehminate the necessity of a hearing, however, we recognized that the trial court, apprised of the financial situation after a full trial on the merits, could properly consider the trial evidence while exercising its discretion to award counsel fees. Id. In the present case, the judge who had presided at the trial did not preside at the hearing on counsel fees. The second judge, however, had the full trial record available to him. We conclude that there was sufficient evidence to justify the award of counsel fees to defend the appeal.
The defendant’s final claim is that the hearing and subsequent order denied his constitutional right to cross-examine the plaintiff. We do not agree.
Cross-examination is a substantial right that should be liberally allowed. Pickman v. Pickman, 6 Conn. App. 271, 277-78, 505 A.2d 4 (1986). In order to be admissible, evidence from cross-examination, like all evidence, must be relevant. Skrzypiec v. Noonan, 228 Conn. 1, 21-22, 633 A.2d 716 (1993).
“[W]e are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence ... in the whole record, or that its decision is otherwise erroneous in law.” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 650, 643 A.2d 874 (1994). In the present case, we conclude that the trial court did not abuse its discretion in its relevancy ruling and that the defendant was not denied his right of cross-examination.
The judgment is affirmed.
In this opinion the other judges concurred.
The evidence showed that the plaintiffs father was paying for her education.