McPhee v. McPheeMcPhee v. McPhee
- Reporters:
- , ,
- Before:
- Armentado
Lead Opinion
This appeal raises the propriety of a divorce decree awarding to the plaintiff the defendant’s one-half interest in their jointly held residence and business property, providing the defendant with terminable alimony, and making certain other awards.
The twenty-three year marriage of the parties was dissolved by decree entered December 17,1979, upon a finding of irretrievable breakdown. At the time of the trial the defendant wife was forty-one years of age and the plaintiff husband was forty-two years of age. There are three children of the marriage, whose ages at the time of trial were twenty, sixteen and twelve. For many years during the marriage the defendant had a drinking problem and was not employed until after the separation of the parties. At the time of trial she was employed as an accounting clerk and was living in an apartment in Hamden. She testified that she had been rehabilitated from her drinking problem since March, 1979. The plaintiff has been self-employed in the business of selling and installing aluminum siding for twenty-five years.
In her appeal from the dissolution decree the defendant claims that the trial court erred in applying the statutory criteria for property division, in basing its’ findings upon unreasonable interpretations of the facts, in setting the contingencies for alimony termination, and in otherwise penalizing the defendant for her prior illness.
The purpose of property division “is to unscramble the ownership of property, giving to each spouse what is equitably his.” Clark, Domestic Relations (1968) p. 450; see Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981); Pasquariello v. Pasquariello, 168 Conn. 579, 583-85, 362 A.2d 835 (1975). At the time of entering a decree dissolving a marriage, the trial court may assign to either party all or any part of the estate of the other and may order either to pay alimony to the other.
The trial court found that the acquisition of the jointly owned residential property at 68 Wright Lane and business property at 352 Pine Bock Avenue, Hamden, resulted primarily from the plaintiff’s contributions. In support of its conclusion the trial court noted that the plaintiff’s share of the net proceeds from the sale of “one of the properties” constituted the contribution in the acquisition of the two parcels of real property held jointly by the parties. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); see
The plaintiff’s uncontroverted testimony was that after the sale of their first residence in 1966 or 1967 the parties had $30,000 cash on hand. Each party testified initially that the defendant retained $10,000-12,000 from the sale of this starter residence, and the plaintiff testified that he contributed the entire purchase price for their second residence at 68 Wright Lane, Hamden, because his wife was never employed. Upon cross-examination the plaintiff corrected his testimony. He stated that the $30,000 joint funds held after the sale of their first residence was put to two uses. Their second res
The defendant claims further that the trial court’s factual findings of the parties’ relative incomes, vocational skills, employability and opportunities were unreasonable. Without stating the factual basis for its findings, the court found that the amount and sources of income were “nominal in each case—depends on continued working,” their employability was “equal,” their vocational skills were “not exceptional,” and their opportunities were “difficult to predict—health important.” At the time of trial the defendant had recently begun an entry level clerical position from which she netted $146.46 weekly. In obvious contrast to her circumstances, the plaintiff had been employed as an aluminum siding contractor for twenty-five years and earned $394.10 weekly from his employment and interest income. Because of the vagueness of the court’s findings with respect to vocational skills and opportunities for future acquisition of
Finally, the defendant claims that the trial court penalized her for her prior illness in two respects. The first is that the court improperly considered the plaintiff’s payment of $15,000 in medical expenses as a prior benefit bearing on the issue of the property division. In discussing the contribution of the parties to the acquisition of their estates, the trial court stated in its memorandum of decision: “She received a large cash share of the net sale of one of the properties (about one-half) plus he made out-of-pocket disbursements of about $15,000 for treatment of her illness and problems. Her benefits approximated $28,000.” There is no basis for the court’s consideration of medical expenses paid during the marriage as a factor in determining property division. Medical expenses are part of the family support obligation.
“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. Gallo v. Gallo, [184 Conn. 36, 50, 440 A.2d 782 (1981)].” McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981), “As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. See, e.g., Corbin v. Corbin, 179 Conn. 622, 624, 427 A.2d 432 (1980); Fucci v. Fucci, 179 Conn. 174, 180-81, 425 A.2d 592 (1979); Jacobsen v. Jacobsen, 177 Conn. 259, 262-63, 413 A.2d 854 (1979).” McGuinness v. McGuinness, supra. This appeal presents one of the rare cases in which the trial court abused its broad discretion by misapplying the law and by making crucial findings which were not reasonably supported by the facts.
There is no error with respect to dissolution, custody and visitation. There is error in the award of alimony and in the division of property. The judgment is set aside as to alimony and division of property, and the case is remanded for a rehearing on the questions of alimony and division of property in accordance with this opinion.
In this opinion Parsket, Shea and Covello, Js., concurred.
Notes
“(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town were the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party of parties.
“(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing 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, 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.”
“(b) Notwithstanding the provisions of subsection (a) of this section, it shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife or minor child while residing in the family of its parents; (3) the rental of any dwelling unit actually occupied by the husband and wife as a residence and reasonably necessary to them for that purpose; and (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both; (5) the reasonable apparel of the wife; and (6) her reasonable support while abandoned by her husband.
“(e) No action may be maintained against either spouse under the provisions of this section, either during or after any period of separation from the other spouse, for any liability incurred by the other spouse during the separation, if, during the separation the spouse who is liable for support of the other spouse has provided the other spouse with reasonable support.”
For the purposes of the chapter on Alcohol and Drug Abuse,
The parties agreed at oral argument that this condition subsequent should be deleted from the decree, which agreement this court endorses.
Concurrence Opinion
(concurring). I concur in the result reached by the majority opinion although I write separately to state my views on their observation that “the contrast between the defendant’s recently acquired clerical position and the plaintiff’s 25-year career as an aluminum siding contractor cannot support the trial court’s finding that the employability of the parties is ‘equal.’ ” My view is that to so state, in effect, equates “employability” with “earning capacity” or “earning potential”; see deCossy v. deCossy, 172 Conn. 202, 205, 374 A.2d 182 (1977); or, more to the point, does not fully consider certain other factors in
In construing a statute, no word should be treated as superfluous or insignificant; Kulis v. Moll, 172 Conn. 104, 111, 374 A.2d 133 (1976); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 101, 291 A.2d 721 (1971); and words and phrases are to be construed according to the commonly approved usage of the language. Wiegand v. Heffernan, 170 Conn. 567, 581, 368 A.2d 103 (1976); Consolidated Diesel Electric Corporation v. Stamford, 156 Conn. 33, 38, 238 A.2d 410 (1968). Webster defines “employability” as the “quality or state of being employable” and “employable” as “capable of being employed, specif: physically and mentally capable of earning a wage at a regular job and available for hiring.” Webster, Third New International Dictionary. In my view, since
I therefore concur in the result.