SUNBURY v. SUNBURY

The plaintiff appealed to the Appellate Court from the judgment of the trial court dissolving her marriage to the defendant and making certain financial orders. The Appellate Court, determining that the trial court had erred in computing the defendant's net income, set aside the order regarding periodic alimony but left intact the remaining financial orders. On the granting of certification, the plaintiff appealed to this court. Held that the Appellate Court, having correctly found error in the trial court's calculation of the defendant's net income, should have required the trial court to reconsider all of its financial orders; the issues involving financial orders were entirely interwoven, and limiting the remand to the issue of periodic alimony would impede the trial court's ability to weigh the statutory criteria for financial orders to achieve an equitable result.

HULL, J.

The plaintiff, Carol A. Sunbury, appealed to the Appellate Court challenging the financial orders of the trial court contained in the judgment of dissolution of her marriage to the defendant, Donald C. Sunbury. Upon determining that the trial court had erred in computing the defendant's net income, the Appellate Court set aside the trial court's order regarding periodic alimony, but left intact the remaining financial orders. Sunbury v. Sunbury, 13 Conn. App. 651, 662, 538 A.2d 1082 (1988). We granted certification of the plaintiff's appeal from the Appellate Court to consider the following issue: "Having found error in the trial court's calculation of the defendant's net income, did the Appellate Court err in limiting the issue on remand to a reconsideration of periodic alimony?" We find error.

The factual and procedural background of the case is as follows. The parties were married on November 8, 1958. There were three children, the youngest of whom was eighteen at the time of the judgment of dissolution. The plaintiff was forty-eight years old. She had been employed as a registered nurse for much of her adult life, but had no retirement benefits, pension plan or health insurance. At the time of trial she worked at a convalescent home earning gross wages of $339 per week and a net income of $274 per week. She had minimal assets. The defendant was forty-nine years old, and had received a high school education. He had been employed for seventeen years at Sears, Roebuck and Company (Sears). He reported in his financial affidavit gross earnings of $718 per week reduced to $350 by taxes, life and medical insurance premiums, contributions to an IRA account and a profit sharing plan with Sears. The defendant also had a retirement plan with Sears with three years of service credited. He had a savings account of $30,000. The parties disputed the source of that money. They jointly owned a family dwelling which the plaintiff claimed was worth from $89,000 to $90,000 and the defendant claimed was worth $75,000. There was a mortgage of approximately $4400 on the property at the time of trial.

The trial court rendered judgment finding that the marriage had broken down irretrievably and that the plaintiff was more at fault for the breakdown than the defendant. The judgment included the following orders: (1) the defendant was to pay the plaintiff periodic alimony in the amount of $75 per week for a period of two years; (2) the defendant was to make a lump sum alimony payment of $35,000 to the plaintiff, due and payable two years from the date of the issuance of the order or upon the sale of the marital residence, whichever came first; (3) the plaintiff was to transfer her interest in the marital residence to the defendant; and (4) the defendant was to pay the plaintiff $1000 for counsel fees.

The Appellate Court agreed with the plaintiff that the payments to the profit sharing plan and the IRA account should not have been excluded from the calculation of the defendant's net income, since they are optional to the employee and inure to his benefit. Thus, the Appellate Court found error in the trial court's finding that the defendant's net earnings were approximately $350 per week. It concluded that the IRA and profit sharing contributions should not have been deducted from the defendant's net income, thereby increasing his net income to approximately $500 per week, an increase of about 46 percent. The Appellate Court then set aside the judgment of the trial court with respect to its order of periodic alimony only, and remanded the case for further proceedings.

On this appeal the plaintiff claims that, in light of the readjustment of the defendant's net income, on remand, the trial court should be required to reconsider all of its financial orders, and that the Appellate Court erred in limiting the issue on remand to a reconsideration of periodic alimony only. We agree. On the facts of this case, where the Appellate Court ruled that the trial court should have found the defendant's net income to be 46 percent higher than it actually did, the trial court on remand could no more fashion just and equitable financial orders by reconsidering only the issue of periodic alimony, than it could reassemble a broken vase with only one piece.

The criteria for the assignment of property pursuant to General Statutes 46b-81 (c) and the ordering of alimony pursuant to General Statutes 46b-82 are virtually identical. "While an action for divorce or dissolution of marriage is a creature of statute, it is essentially equitable in its nature. Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 146." Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975). "The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties' dispute, i.e., where the sole asset of the parties is their residence to which both have contributed. Equity certainly does not contemplate such a result." Id., 585. It is clear in this case that the residence of the parties is their chief capital asset.

"While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case. Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980)." Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). To limit the remand in this case to the issue of periodic alimony would impede the trial court's ability to weigh the statutory criteria for financial orders to achieve an equitable result. The issues involving financial orders are entirely interwoven. "The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).