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Docket Number

(AC 22135)

Attorney(S)

William H. Cashman filed a brief for the appellant (defendant). George W. Boath, Jr., filed a brief for the appellee (plaintiff).

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Smart Summary

Summary of Opinion: Dorothy Greco v. Ralph Greco (AC 22135)

Factual and Procedural Background

The plaintiff, Dorothy Greco, brought an action for dissolution of marriage against the defendant, Ralph Greco, after thirty-seven years of marriage. The dissolution action was brought on August 4, 2000, in the Superior Court in the judicial district of Ansonia-Milford and was tried to the court (Cutsumpas, J.). During the trial the defendant admitted to having had an extramarital affair that began in 1999. The plaintiff testified she would be willing to reconcile only if the defendant transferred all family assets into her name alone. The trial court found that the marriage had broken down because of the defendant's infidelity and distributed 67 percent of the marital assets to the plaintiff and 33 percent to the defendant. The defendant appealed the judgment to the Appellate Court of Connecticut. The trial court's judgment was affirmed.

Legal Issues Presented

Whether the trial court improperly found facts, specifically whether the court erred in finding that the defendant's infidelity (and his alleged loss of self-esteem) caused the breakdown of the marriage.
Whether the trial court abused its discretion in distributing the marital assets (challenging the award of 67 percent of the marital assets to the plaintiff).

Arguments of the Parties

Appellant's (Defendant's) Arguments

The trial court improperly found that his infidelity caused the breakdown of the marriage; instead, he contends the breakdown resulted from the plaintiff's demands as conditions of reconciliation (specifically her requirement that he transfer all marital assets to her) and other factors he identified (plaintiff's alcohol use, lack of communication, dictatorial personality, unwillingness to go on vacations, and loss of a close friend).
The court improperly found that his loss of self-esteem led to the breakdown; he asserts a phrase in the court's opening remarks constituted such a finding.
The court abused its discretion in distributing the marital assets; he argues the distribution lacks sufficient basis. He further contends (in a note) that a $100,000 mortgage assigned to him should be excluded from review because of a low probability of receipt, which would reduce his effective share to 25 percent, though he provided no authority for excluding that asset.

Appellee's (Plaintiff's) Arguments

The plaintiff contended the marriage broke down because of the defendant's repeated infidelity and testified she would only reconcile if the defendant transferred family assets into her name.
The plaintiff argued the demand to transfer assets constituted an impediment to reconciliation rather than the underlying cause of the marital breakdown.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
<i>Mongillo</i> v. <i>Mongillo</i>, 69 Conn. App. 472, 476, <strong>___ A.2d ___</strong> (2002)	Standard of review for factual findings: a finding of fact is reversed only when clearly erroneous; deference to trial court's weighing of evidence and credibility determinations.	The court applied this standard to uphold the trial court's finding that the defendant's infidelity caused the breakdown of the marriage because that finding was supported by evidence and not clearly erroneous.
<i>Hunter's Ambulance Service, Inc</i>. v. <i>Shernow</i>, 70 Conn. App. 96, 111, <strong>___ A.2d ___</strong> (2002)	Principle that the trial court is entitled to accept or reject, in whole or in part, the testimony of a party.	The court relied on this principle to justify crediting the plaintiff's testimony over the defendant's and to conclude the finding regarding infidelity was properly within the trial court's discretion.
<i>Simmons</i> v. <i>Simmons</i>, 244 Conn. 158, 174-75, 708 A.2d 949 (1998)	Standard of review in domestic relations cases: appellate court will not disturb trial court orders absent abuse of discretion; outlines that the trial court must consider statutory criteria (General Statutes §§ 46b-81 and 46b-82) but need not list each factor expressly.	The court applied this standard to review the property distribution, concluding the trial court did not abuse its discretion in awarding the plaintiff 67 percent of the assets, given the trial court's findings (including infidelity) and its role in weighing statutory criteria.

Court's Reasoning and Analysis

The court addressed the defendant's two principal claims in sequence.

First, on the factual-findings challenge, the court recited the applicable standard: a factual finding is overturned only if clearly erroneous, and appellate courts give great deference to the trial court's weighing of evidence and credibility determinations. The trial court's memorandum of decision reflected that it considered both parties' positions regarding the cause of the breakdown. The trial court found the plaintiff's claims more credible and specifically relied on the uncontested fact of the defendant's extramarital affair. Because the finding that infidelity caused the breakdown was supported by evidence and within the trial court's province to credit testimonial evidence, the appellate court concluded the finding was not clearly erroneous.

The appellate court rejected the defendant's argument that the plaintiff's reconciliation terms (the transfer demand) caused the breakdown, noting that the trial court did not list that contention among the defendant's arguments and that the demand was an impediment to reconciliation rather than the underlying cause. The court treated the reconciliation demand as a remedy necessitated by the defendant's infidelity, not as the primary cause.

The court declined to address the defendant's contention that a passing remark in the memorandum constituted a finding that loss of self-esteem caused the breakdown, stating the remark was not a finding of fact but part of the court's framing of the issues.

Second, on the property distribution claim, the court set forth the standard that appellate review in domestic relations cases will not disturb trial court orders unless there is an abuse of discretion or the findings lack a reasonable basis. The court noted that the statutory criteria in §§ 46b-81 and 46b-82 must be considered, but the trial court need not expressly reference each statutory factor. The appellate court considered and rejected the defendant's request to exclude a $100,000 mortgage assigned to him from the asset distribution review—observing the defendant provided no authority for such exclusion and that excluding it would amount to impermissible redetermination of the allocation of assets.

Given the trial court's finding that the defendant's infidelity caused the marital breakdown—a factor the court was required to consider under § 46b-81—the appellate court concluded the trial court could reasonably have awarded the plaintiff 67 percent of the marital assets. The appellate court emphasized that an appellant's disagreement over the weight assigned to statutory criteria is not a sufficient basis for reversal.

Holding and Implications

Holding: The Appellate Court affirmed the judgment of the trial court. Affirmed.

Implications: The direct effect is that the trial court's dissolution judgment stands: the marriage is dissolved; the plaintiff received 67 percent of the marital assets and the defendant 33 percent; and the trial court's factual finding that the defendant's infidelity caused the marital breakdown was upheld. The opinion does not announce a new legal rule beyond applying established standards of review for factual findings and abuse of discretion in domestic relations matters.

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DOROTHY GRECO v. RALPH GRECO

Syllabus The defendant appealed to this court from the judgment of the trial court dissolving his marriage to the plaintiff. Held:

1. The trial court's finding that the defendant's infidelity was the cause of the breakdown of the marriage was supported by the record and was not clearly erroneous.

2. The trial court did not abuse its discretion in awarding the plaintiff 67 percent of the marital assets.

Opinion

SCHALLER, J.

The defendant, Ralph Greco, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Dorothy Greco. On appeal, the defendant claims that the court (1) improperly found facts and (2) abused its discretion in distributing the marital assets. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's appeal. After thirty-seven years of marriage, the plaintiff brought a dissolution of marriage action against the defendant on August 4, 2000. During the trial, the defendant admitted to having had an affair that began in 1999. The plaintiff testified that she was willing to reconcile with the defendant after the affair, but as a condition of reconciliation, she would require him to transfer all the family assets into her name alone. After hearing the parties, the court found that the marriage had broken down because of the defendant's infidelity. The court distributed 67 percent of the marital assets to the plaintiff and 33 percent of the assets to the defendant. This appeal followed. Additional facts will be set forth as necessary.

The defendant first claims that the court improperly found facts. Specifically, the defendant argues that the court improperly found that his infidelity caused the breakdown of the marriage and that his loss of self-esteem also led to the breakdown of the marriage.

We first note our standard of review for the defendant's claim. "We have long held that a finding of fact is reversed only when it is clearly erroneous. . . . A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) Mongillo v. Mongillo, 69 Conn. App. 472, 476, ___ A.2d ___ (2002).

The defendant first argues that the court improperly found that his affair had caused the breakdown of the marriage. According to the defendant, the marriage broke down as a result of his refusal to accept the plaintiff's terms of reconciliation requiring him to transfer all the marital assets to her. He argues that it was improper for the court to find otherwise because it was the plaintiff's demands and refusal to negotiate that caused the marriage to break down.

The court's memorandum of decision reveals that the court set forth both parties' contentions as to why the marriage broke down. The court noted the plaintiff's contention that, among other things, the marriage broke down because of the defendant's repeated infidelity. The court also noted the defendant's position that the cause of the breakdown was the plaintiff's alcohol use, lack of communication, dictatorial personality, unwillingness to go on vacations and loss of a close friend. The court concluded that "[w]hile there are two sides to every marriage breakdown and perceptions always vary, it would appear the [plaintiff's] claims are more credible."

We are not persuaded that the court's finding was erroneous. In the present case, the court chose to credit the plaintiff's testimony as to why the marriage broke down over that of the defendant. It is a well settled proposition that the court is entitled to accept or reject, in whole or in part, the testimony of a party before it. See Hunter's Ambulance Service, Inc. v. Shernow, 70 Conn. App. 96, 111, ___ A.2d ___ (2002). In light of the uncontested fact that the defendant had engaged in an extramarital affair, we cannot conclude that it was improper for the court to find that this infidelity caused the breakdown of the marriage. Because the court's finding was supported by ample evidence in the record, that finding was not clearly erroneous.

Additionally, we are not persuaded by the defendant's argument that the terms of reconciliation were the cause of the breakdown. We note that the court's memorandum does not list the reconciliation terms as one of the defendant's arguments as to why the marriage broke down. It would therefore appear that the defendant did not even argue that contention at the dissolution hearing. Moreover, as the plaintiff correctly states in her brief, the demand to transfer assets and the defendant's refusal to do so was an impediment to reconciliation, not a contributing factor to the breakdown. Logic dictates that the terms of reconciliation, and indeed the reconciliation itself, were necessitated by the defendant's initial infidelity. The defendant's argument seeks to assign the breakdown of the marriage to a failed remedy as opposed to the actual underlying cause for which the remedy proved insufficient. We cannot agree with that contention.

The defendant also asserts that it was improper for the court to find that his loss of self-esteem also led to the breakdown of the marriage. The defendant contends that one phrase contained in the court's opening remarks in the memorandum of decision constitutes a finding that the defendant's loss of self-esteem caused the breakdown. We will not address that contention because the court's statement that the defendant takes issue with was not a finding of fact. A review of the memorandum makes it clear that the remark in question was nothing more than the court's setting of the stage for its determination of the issue presented.

The defendant next claims that the court abused its discretion in distributing the marital assets. The defendant argues that the court did not have a sufficient basis to distribute the assets as it did.

We note that the defendant argues that instead of reviewing that claim based on the 33 percent of the assets he received, we should exclude a $100,000 mortgage on the marital home that he was assigned and review the award as if he received only 25 percent of the assets. The defendant argues that we should exclude the mortgage because there is a very low probability that he will receive payment on the mortgage during his lifetime as a result of the conditions of payment implemented by the court. Despite that argument, the defendant has provided no authority to support the exclusion of that asset from our review. Additionally, we note that if we were to exclude that asset and then review the distribution, we would essentially be redetermining the allocation of assets. We cannot assume that role. We therefore decline to exclude the asset, and we review the distribution as it stands.

We first note our standard of review. "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. . . . 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. . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Our statutory scheme, specifically [General Statutes] §§ 46b-81 and 46b-82, set[s] forth the criteria that a trial court must consider when resolving property and alimony disputes in a dissolution of marriage action. The court must consider all of these criteria. . . . It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding as to each statutory factor. A ritualistic rendition of each and every statutory element would serve no useful purpose. . . . [T]he trial court is free to weigh the relevant statutory criteria without having to detail what importance it has assigned to the various statutory factors." (Citations omitted; emphasis in original; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).

The court did not abuse its discretion in awarding the plaintiff 67 percent of the assets. Despite the defendant's contentions to the contrary and his own review of the criteria set forth in § 46b-81, we cannot construe the court's award as an abuse of discretion in light of the court's finding that the defendant's infidelity was the cause of the breakdown of the marriage. That is a factor that the court was required to consider pursuant to § 46b-81. "It is often the case that the appellant, in arguing abuse of discretion, would in reality have this court vary either the weight placed upon specific statutory criteria or the weight placed upon documentary or testimonial evidence. . . . Such an excursion by this court into the domain of the trier is unacceptable." (Citation omitted; internal quotation marks omitted.) Id., 176. We determine that the court reasonably could have concluded as it did. As a result, the court did not abuse its discretion.

GRECO v. GRECO