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Attorney(S)

John P. Febbroriello, with whom, on the brief, was Judith A. Dixon, for the appellant (defendant). Ronald Cassidento, with whom, on the brief, was Albert E. Goring, Jr., for the appellee (plaintiff).

Judges

PER CURIAM.

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Smart Summary

Summary of Opinion: Eunice Basile v. Canio Basile (Supreme Court of Connecticut, Aug. 4, 1981)

Factual and Procedural Background

This case arises from an action for dissolution of marriage brought in the Superior Court in the judicial district of Litchfield and referred to Hon. Michael A. Ciano, state referee. The trial court entered a decree dissolving the marriage and ordered the defendant to pay the plaintiff $17,000 in lump sum alimony, $600 in counsel fees, and to transfer to the plaintiff jointly owned real property, an automobile, household items, a life insurance policy, and the proceeds of an income tax refund. Judgment was for the plaintiff; the defendant appealed.

Relevant facts before the trial court included: the parties had been married thirty-four years and had two adult sons; the marriage broke down because the defendant was living with another woman in Massachusetts; the plaintiff was fifty-six and in poor health (arthritis of the spine), had been a housewife during the marriage with no vocational skills aside from part-time hairdressing, and earned $12 per week from that work; the defendant was sixty, a truckdriver who earned $20,000 in 1977 and $25,000 in 1978, had pension and health/welfare weekly contributions, and had a credit union balance of $5,820 in November 1978.

The plaintiff commenced the action in April 1978. In the spring and summer of 1978 the defendant transferred between $10,000 and $25,000 in cash to a son and, in July 1978, conveyed his one-half interests in two parcels of land to his sons without receiving consideration. The plaintiff died intestate on October 23, 1980; her administrator has been substituted as a party on appeal.

Legal Issues Presented

Whether, under the statutes and controlling law, the trial court could award lump sum alimony under General Statutes 46b-82 even though no periodic alimony was awarded and the lump sum might exceed the size of the defendant's estate.
Whether the trial court abused its discretion in making the financial awards (lump sum alimony, counsel fees, and transfers of property) in light of the evidence presented.

Arguments of the Parties

Appellant's Arguments (defendant)

The defendant contended that because the court made no award of periodic alimony, the financial award should be characterized solely as an assignment under General Statutes 46b-81, and that the award thus exceeded his estate.
The defendant asserted that the trial court abused its discretion in making the awards.
The defendant asserted that the cash transfer he made to a son was $10,000 (a factual contention), though he conceded that testimony regarding his bank accounts was confused and did not dispute the trial court's consideration of the transfers without consideration.

Appellee's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976)	Establishes that under former General Statutes 46-21, "alimony" could take three distinct forms: (1) an assignment of part of a husband's estate, (2) periodic payments from income, or (3) a specific sum of money.	The court relied on this characterization to explain that although assignment of a specific portion of an estate is no longer termed "alimony" under present statutes, the historical usage supports that a trial court may award lump sum alimony (a specific sum) pursuant to 46b-82.
Ridolfi v. Ridolfi, 178 Conn. 377, 423 A.2d 85 (1979)	Supports the principle that trial courts have broad discretion in domestic relations matters and that appellate courts should not disturb such determinations if the trial court could reasonably have concluded as it did.	The court cited Ridolfi as part of the body of authority justifying deference to the trial court's assignment of property and alimony determinations.
Jacobsen v. Jacobsen, 177 Conn. 259, 413 A.2d 854 (1979)	States that considerable weight is accorded the action of the trial court, every reasonable presumption is given in favor of its correctness, and it is the trier's province to pass upon witness credibility and weight of evidence.	The court used Jacobsen to explain the standard of review and to support affirming the trial court's discretionary financial awards.
Posada v. Posada, 179 Conn. 568, 427 A.2d 406 (1980)	Referenced as additional authority on appellate deference in domestic relations and alimony/property assignment cases.	The court cited Posada along with other cases to reinforce the proposition that appellate courts will not disturb a trial court's reasonable discretionary determinations in domestic relations matters.

Court's Reasoning and Analysis

The court first addressed the defendant's contention that, because no periodic alimony was ordered, the award must be treated as an assignment under 46b-81 and therefore could not exceed the defendant's estate. The court contrasted the language of 46b-82 (which speaks of "alimony") with other statutory language referring specifically to "periodic alimony," and observed that under former General Statutes 46-21 alimony could be a specific sum. Citing Viglione v. Viglione, the court explained that while assignment of a specific portion of an estate is no longer denominated "alimony" under the present statutes, the term "alimony" continues to encompass a lump sum award.

The court concluded that, pursuant to 46b-82 and considering the statutory factors enumerated therein, a trial court in a dissolution action has the power to award lump sum alimony that may exceed the size of the other's estate if the court's consideration of the factors reasonably supports such a lump sum.

The court then reviewed the evidence that had been before the trial court: the long duration of the marriage (thirty-four years), the circumstances of the breakdown (defendant's conduct), the plaintiff's age and poor health and limited earning capacity, the defendant's income and assets, and the transfers of cash and real property by the defendant without consideration. The court applied the well-established standard of appellate review in domestic relations matters—deference to the trial court's broad discretion (citing Ridolfi, Jacobsen, and Posada)—and asked whether the trial court could have reasonably concluded as it did.

Given the evidence and the applicable law, the court determined that the trial court reasonably could have reached the challenged financial awards. The defendant conceded that the record and briefs were sufficient for the appeal despite the brevity of the trial court's memorandum of decision.

Holding and Implications

Holding: The Supreme Court of Connecticut concluded no error and affirmed the trial court's judgment for the plaintiff.

Implications: The direct consequence is that the trial court's decree—ordering $17,000 in lump sum alimony, $600 in counsel fees, and the transfers of specified property to the plaintiff—stands affirmed. The court's decision applies existing statutory interpretation and precedent to confirm that lump sum alimony may be awarded under 46b-82 and that an appellate court will not disturb a trial court's discretionary domestic relations determinations so long as they are ones the trial court reasonably could have made. The opinion does not announce a new rule beyond the application of the cited statutes and prior cases to the facts of this matter.

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EUNICE BASILE v. CANIO BASILE

PER CURIAM.

The trial court's decree dissolving the marriage of the parties also ordered the defendant to pay the plaintiff $17,000 in lump sum alimony and $600 in counsel fees, and to transfer to the plaintiff all jointly owned real property, an automobile, household items, a life insurance policy, and the proceeds of an income tax refund. Asserting that the court abused its discretion in making these awards, the defendant has appealed.

On appeal, the defendant contends that because the court made no award of periodic alimony, the award falls solely within the ambit of 46b-81 of the General Statutes as an assignment of his estate and that the award exceeds his estate.

"[General Statutes] Sec. 46b-81. (Formerly Sec. 46-51). ASSIGNMENT OF PROPERTY AND TRANSFER OF TITLE. (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. . . . "(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 . . . 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."

The defendant's first contention would necessarily compel the conclusion that no lump sum alimony can be awarded pursuant to the provisions of 46b-82. The short answer is that, in contrast to 46b-86, 46b-82 speaks of "alimony," not "periodic alimony." Under the provisions of General Statutes 46-21 (repealed, Public Acts 1973, No. 73-373, 43), alimony could take three distinct forms: (1) an assignment of a part of a husband's estate, (2) an award of periodic payments from income, or (3) a specific sum of money. Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976). Under our present statutes an assignment of a specific portion of an estate is no longer "alimony" but the statute did not otherwise change the previously established usage of the term "alimony." The trial court, in a dissolution action, therefore has the power to award to one party lump sum alimony which exceeds the size of the other's estate, if the court's consideration of all the factors listed in 46b-82 reasonably supports such a lump sum.

"[General Statutes] Sec. 46b-82. (Formerly Sec. 46-52). 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 . . . 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, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment."

The court had the following evidence before it. The parties were married thirty-four years and had two adult sons. The breakdown of the marriage was caused by the defendant's living with and sharing a home with another woman in Massachusetts. The plaintiff was fifty-six years of age and in poor health, suffering from arthritis of the spine. She had been a housewife during the entire marriage and possessed no vocational skills other than that of hairdressing. Her only source of income was twelve dollars per week from her part-time hairdressing. The defendant was a sixty-year-old truckdriver who in 1977 earned $20,000 and in 1978 earned $25,000, plus weekly contributions of thirty-two dollars to his pension fund and ten dollars to a health and welfare fund. In November, 1978, he had a balance of $5820 in his credit union account. The plaintiff commenced this action in April, 1978. In the spring of 1978, the defendant transferred between $10,000 and $25,000 to a son. In July, 1978, he conveyed his one-half interests in two parcels of land in Harwinton to his sons. One parcel was two acres, the other was five acres. The defendant did not receive any consideration for the transfers of cash or real property.

On October 23, 1980, the plaintiff died intestate. Her administrator, David J. Frauenhofer, has been substituted as a party.

The amount of the cash transferred is the only factual dispute between the parties. Although the defendant asserts that the $10,000 figure is accurate, he conceded at oral argument that the testimony regarding the defendant's bank accounts was confused. The defendant does not claim that the court erred when, in making the financial awards, it considered the assets he transferred without consideration.

In determining whether the court abused its discretion, the ultimate question is whether the court could have reasonably concluded as it did. This court has repeatedly stated that because trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all the surrounding circumstances and the appearance and attitude of the parties are so significant, the court's broad discretion in determining a trial assignment of property and the type, amount, and duration of alimony will not be disturbed as long as the court reasonably could have concluded as it did. Ridolfi v. Ridolfi, 178 Conn. 377, 423 A.2d 85 (1979); Jacobsen v. Jacobsen, 177 Conn. 259, 413 A.2d 854 (1979); see also Posada v. Posada, 179 Conn. 568, 572, 427 A.2d 406 (1980), and cases cited therein. In Jacobsen, we stated that considerable weight is to be accorded the action of the trial court and every reasonable presumption given in favor of its correctness, since it is in the sole province of the trier to pass upon the credibility of the witnesses and the weight to be accorded the evidence. Jacobsen v. Jacobsen, supra, 263.

On the basis of the evidence and the law applicable thereto, we conclude that the trial court reasonably could have concluded as it did conclude.

The defendant concedes that the records and briefs are sufficient for the purposes of this appeal despite the brevity of the memorandum of decision.

BASILE v. BASILE