6 Conn. App. 632 | Conn. App. Ct. | 1986
This is an appeal by the plaintiff husband from the denial of his motion to open and modify the judgment of dissolution of the marriage between the parties.
On May 9, 1984, the trial court issued a memorandum of decision dissolving the marriage. The judgment of dissolution provided, inter alia, that the defendant
The facts are not in dispute. The parties had separated after approximately seven and one-half years of marriage. Shortly after the marriage, land consisting of 100 acres located primarily in Griswold was purchased for $80,000. Through their joint efforts, they constructed a house on the premises. At the time of trial, the residence had an appraised value of between $122,000 and $152,000, with a mortgage balance of $60,000. Both parties were employed and in poor health. The plaintiff grossed $31,000 per year in comparison to the defendant’s $13,260.
Pursuant to General Statutes § 46b-81,
The plaintiff makes the following claims on appeal: (1) that the court’s original memorandum (May 9,1984) is inconsistent with the corrected judgment (July 10, 1984), arguing that the second decision had the effect of reversing the first decision’s assignment order because the defendant had only an equitable interest but not legal title to the property; (2) that because there was no cash in the plaintiff’s estate the trial court invalidly assigned $25,000 in cash to the defendant; and (3) that the trial court erred in awarding $2500 to the defendant to defend the appeal.
“ ‘The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.’ ” McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982). “The trial court is ‘in a clearly advantageous position to assess all of the circumstances surrounding a dissolution action, in which personal factors such as the demeanor and the attitude of the par
The trial court properly corrected the original memorandum of decision deleting the joint ownership reference. “ Tt is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake.’ . . . If a memorandum incorrectly formalizes the decision that was reached in deliberation, it should be corrected.” Lamont v. New Hartford, 4 Conn. App. 303, 306, 493 A.2d 298 (1985).
Because the first two claims of error raised by the plaintiff challenge the propriety of the trial court’s award under General Statutes § 46b-81, these claims will be considered together. Section 46b-81 confers broad powers upon the court in the assignment of property and provides that the court “may assign to either the husband or wife all or any part of the estate of the other.” In any order entered under § 46b-81, the court may consider such factors as the “estate, liabilities and needs of each of the parties.” “We have repeatedly held that the trial court, in a dissolution action, [may exercise] wide discretion in the type and amount of alimony to be awarded . . . and in the property to be transferred.” Schmidt v. Schmidt, 180 Conn. 184, 191-92, 429 A.2d 470 (1980); see Hollingsworth v. Hollingsworth, 180 Conn. 212, 213, 429 A.2d 463 (1980).
The trial court considered the feasibility of ordering a sale of the premises and also recognized that the defendant claimed an equitable interest in the real estate. Nevertheless, the trial court ordered the defendant to
The trial court’s decision falls within the purview of § 46b-81. Ridgeway v. Ridgeway, 180 Conn. 533, 543-44, 429 A.2d 801 (1980). It is immaterial whether the real estate was in one or both names. The “estate” of the parties as referred to in § 46b-81 “comprehends the aggregate of the property and liabilities of each. . . . We construe the language of § 46b-81 to authorize the trial court to enter the order it did here. In doing so, it did not abuse its discretion.” (Citation omitted.) Schmidt v. Schmidt, supra, 192. The court did not err in ordering the assignment of $25,000 in cash from the plaintiffs estate to the defendant under § 46b-81.
The plaintiff further claims that the court erred in awarding the defendant $2500 to defend the appeal. “The decision to award attorney’s fees is made independently from a decision to award alimony or to assign property in a dissolution action. . . . Therefore, if a trial court does make other financial awards, this does not mean that it must also, ipso facto, make an award of attorney’s fees. This is evident in the language of General Statutes § 46b-62,
Whether a spouse has sufficient liquid funds to pay for attorney’s fees can only be determined by examining the total financial resources of the parties in light of the statutory criteria. Id.; Ellsworth v. Ellsworth, 6 Conn. App. 617, 621, 506 A.2d 1080 (1986); Vaiuso v. Vaiuso, 2 Conn. App. 141, 151, 477 A.2d 678 (1984). “Therefore, if, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees. If, on the other hand, the trial court concludes, based on the total financial resources of the parties, that denying an award of counsel fees would undermine its prior financial orders, then it may award counsel fees to the requesting party. An abuse of discretion in denying an award of counsel fees will only be found if this court determines that the trial court
We cannot find that the court abused its discretion or acted unreasonably in granting the defendant’s request for attorney’s fees.
There is no error.
General Statutes § 46b-81 provides in pertinent part: “assignment of property and transfer OF title, (a) At the time of entering a decree
“(c) In fixing the nature and value of the property, if any, to be assigned, the court after hearing the witnesses . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
General Statutes § 46b-62 provides in pertinent part: “orders for payment of attorney’s fees in certain actions. In any proceeding seeking relief under the provisions of this chapter and sections 17-323a, 17-323b, 45-162, 46b-1, 46b-6, 46b-204, 47-14g, 51-348a and 52-362, the court may order either spouse to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.”
General Statutes § 46b-82 provides in pertinent part: “alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. ... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81. ...”