12 Conn. App. 113 | Conn. App. Ct. | 1987
This case is a sequel to our decision in O’Bymachow v. O’Bymachow, 10 Conn. App. 76, 521 A.2d 599 (1987). There we found error in the trial court’s refusal to hear the defendant’s motion to open its judgment denying the defendant’s motion for modification of an earlier judgment of dissolution. That motion to open was based on an allegation of fraud, and the court’s refusal to hear the motion was based on the fact that the judgment which the defendant sought to open was on appeal. Id., 76-77.
We ordered the trial court to hear the defendant's motion to open promptly, and retained the defendant’s original appeal on our docket pending the results of that hearing. Id., 78-79. Upon remand, the trial court denied the defendant’s motion to open, finding that she had not established fraud. The defendant has specifically waived her right to appeal from that determination. We turn, therefore, to the merits of the defendant’s original appeal.
The defendant appeals from the denial by the trial court, Clark, J., of her motion to modify that portion of the judgment of dissolution, Ottaviano, J., relating to unallocated alimony and support. The trial court concluded that the defendant had failed to show the necessary substantial change of circumstances. This appeal followed.
After a hearing held on October 1, 1985, the trial court on October 7, 1985, made the following specific factual findings.
The court also found that the plaintiffs net income in 1982 was $330 per week, and is now $340 per week. His employment is unchanged, he drives the same car as in 1982, and he carries the same amount of life insurance. He no longer owns $30,000 worth of stock which he owned in 1982, and his liabilities have increased by $76,000. The court also specifically found that, with reference to the parties’ financial condition, “[t]he only items that have changed since the date of the dissolution were the pieces of real estate owned by the defendant and owned by the plaintiff,” and that “[t]he only change of circumstances that [the] defendant has shown is that she has a man living in the house with her.”
It is not necessary to address each of the six claims of error raised by the defendant. We conclude that, because of the coalescence of the merits of three of these claims, the “underpinning of the [court’s] deci
“We recognize that a party seeking modification of financial orders incident to a marital dissolution judgment must clearly and definitely establish an uncontemplated
First, two sets of the court’s specific findings are unsupported by the evidence in the case and are clearly erroneous. There is simply no evidence whatsoever to
The plaintiff argues that any errors in these findings of the court are harmless, because the finding regarding the amount of the defendant’s weekly earnings, namely, $240, was supported by the evidence, and because the court’s finding regarding the defendant’s relationship with another man did not result in a decrease in her alimony. See General Statutes § 46b-8 (b); Kaplan v. Kaplan, supra. The error as to the nature of the defendant’s employment, and its implicit reference to her earning capacity, and the error as to the nature of her relationship with the other man, might in isolation be harmless. Taken together, however, and taken with the other errors made by the trial court, they undermine appellate confidence in the court’s fact finding process, and contribute to our conclusion that a new hearing is required.
Second, the court’s finding that, with respect to the financial condition of the parties, the only changes
The defendant had the burden of establishing a substantial and unforeseen change of circumstances from the date of the judgment. Cersosimo v. Cersosimo, 188 Conn. 385, 405, 449 A.2d 1026 (1982). The issue presented by this set of facts is whether the financial base at the time of the judgment in October, 1982, is to be determined by reference to the values of the plaintiff’s businesses in October, 1982, as established in the October 1985 modification proceedings, or whether that base is to be determined by reference to the values, or lack thereof, attributed to them by the plaintiff at the time of the original judgment in October, 1982. We conclude that, for purposes of determining whether their values in 1985 constituted a substantial change of circumstances, those values must be compared to the values, or lack thereof, as represented in the 1982 proceedings.
In October, 1982, the plaintiff in effect attributed no value to his businesses on his financial affidavit. Both
Third, the court’s findings effectively disregarded undisputed facts showing a substantial increase in the value of the plaintiff’s real estate. The plaintiff’s October, 1982 affidavit indicated as his sole real asset a one-half interest in the parties’ home in East Haven, valued at $12,500. His October, 1985 affidavit indicates a home in Branford valued at $525,000, which he owns jointly with his current wife, on which there is a mortgage of $150,000, yielding an equity owned by the plaintiff of $187,500.
This increase in the value of the plaintiffs real estate, namely $150,000, taken together with the attributed increase in the value of his wholly owned businesses of $202,000, indicates an increase in the value of these assets of $352,000 within three years. The court found that the plaintiffs earnings only increased from $330 per week in October, 1982, to $340 per week in October, 1985. In October, 1982, his total net assets were approximately $44,000. In October, 1985, his total net assets were approximately $373,000.
There is error, the judgment denying the defendant’s motion for modification is set aside, and the case is remanded for a new hearing on that motion.
In this opinion the other judges concurred.
At the conclusion of the hearing, the court orally denied the defendant’s motion, finding that “the defendant has failed to show a substantial
The defendant testified that she was unrepresented by counsel in the initial dissolution proceedings. The plaintiff testified that it was his understanding that his attorney was representing both parties. The trial court file discloses no appearance for the defendant at the time of the original judgment, and an appearance only for the plaintiff.
We note that General Statutes § 46b-86 (a) which provides for modification “upon a showing of a substantial change in the circumstances of eithei party,” has been repealed and substituted by Public Acts 1987, No. 87-104. That act states, in relevant part, that “modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court.” (Emphasis added.) This act is not effective until October 1,1987, and therefore does not affect this case.
The plaintiff also subtracted from the value of this house a $50,000 loan, but admitted in his testimony that this was an unsecured “oral note” to his sister on which he made no payments.
The plaintiff testified that his current wife contributed only $15,000 toward the $330,000 purchase price.
This figure is derived by adding to the value of his businesses and real estate the value of various items of personalty shown on the plaintiffs 1985 affidavit. It is true that the trial court found that the plaintiffs liabilities had increased by $76,000 from 1982, but that finding is also erroneous. That figure is derived from comparing the plaintiffs 1982 and 1985 affidavits. The 1982 affidavit indicated total liabilities of $6000. The 1985 affidavit indicated total liabilities of $80,000. The $80,000 figure consists, however, of two components: (1) the $50,000 debt to his sister, which had already been deducted from the equity in his house; and (2) a $30,000 note payable, shown as a “House purchase loan.” The plaintiffs testimony indicates, however, that $15,000 of this $30,000 “loan” was in fact a draw from one of his wholly owned businesses, which was later changed to show as a loan on the books of the business. In any event, the repayment of this loan, which is not evidenced by any promissory note, is totally within his control, and even if it were repaid, it would be to his wholly owned businesses. We can hardly consider that a true liability.