Durkin v. Durkin

685 A.2d 344, 43 Conn. App. 659, 1996 Conn. App. LEXIS 558
CourtConnecticut Appellate Court
DecidedDecember 3, 1996
Docket15300
StatusPublished
Cited by3 cases

This text of 685 A.2d 344 (Durkin v. Durkin) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durkin v. Durkin, 685 A.2d 344, 43 Conn. App. 659, 1996 Conn. App. LEXIS 558 (Colo. Ct. App. 1996).

Opinion

O’CONNELL, J.

In this appeal from the judgment of dissolution of his marriage, the defendant claims that the trial court improperly (1) found him at fault for the breakdown of the marriage, (2) ordered him to pay periodic alimony for eight years and (3) awarded the plaintiff an interest in his retirement benefits.

While the appeal was pending, the trial court issued a postjudgment order awarding the plaintiff counsel fees to defend the appeal. The defendant amended his appeal to add claims that the trial court improperly (4) failed to hold a meaningful hearing on the plaintiffs motion for appellate counsel fees and (5) deprived him of his constitutional right to cross-examine the plaintiff.

[661]*661We affirm the trial court’s judgment on both the original appeal and the supplemental appeal.

I

The record discloses that the plaintiff and the defendant were married on October 2, 1982, and that there were no children of the marriage. The defendant’s first two claims, regarding the breakdown of the marriage and the order to pay periodic alimony, clearly implicate the trial court’s fact-finding and discretionary functions. On appeal we do not retry the facts. Muller v. Muller, 43 Conn. App. 327, 682 A.2d 1089 (1996).

In domestic relations cases, our review of the trial court’s exercise of discretion is limited to whether it correctly applied the law and could reasonably have concluded as it did. Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987). Trial courts have a distinct advantage over an appellate court in domestic relations cases where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. Figlar v. Figlar, 174 Conn. 151, 153, 384 A.2d 1 (1978). Great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Rummel v. Rummel, 33 Conn. App. 214, 221, 635 A.2d 295 (1993).

Our review of the record, transcript and briefs reveals that the trial court properly considered the statutory criteria, the evidence and the financial affidavits of the parties. Accordingly, we conclude that the trial court did not abuse its discretion by finding the defendant at fault for the breakdown of the marriage and ordering him to pay periodic alimony.

In his third claim, the defendant argues that the trial court improperly awarded the plaintiff an interest in his retirement benefits. The defendant correctly points out that expectations of possible future interests are [662]*662not property and may not be divided. Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). The defendant concedes that the distribution of vested pension benefits does not violate the limitation on division of expectancies. Krafick v. Krafick, 234 Conn. 783, 793-98, 663 A.2d 365 (1995). He argues, however, that there was no evidence that his pension was vested. We do not reverse factual findings of a trial court unless they are clearly erroneous. Cellu Tissue Corp. v. Blake Equipment Co., 41 Conn. App. 413, 420, 676 A.2d 405 (1996). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id. Because our examination of the record reveals that there was evidence before the trial court that the defendant’s pension was vested, we will not reverse the trial court’s finding that the pension was vested.

II

The defendant next complains that the trial court improperly failed to conduct a meaningful hearing on the plaintiffs motion for counsel fees to defend the appeal. The plaintiff was unable to be present at the hearing on the motion because, as part of her studies at the University of Connecticut, she was attending a university in Germany for a semester. The trial court found that she lacked funds to return to the United States for the hearing.1

The plaintiff did not file a new financial affidavit but relied on the affidavit she had submitted at the time of trial. Her mother, who held the plaintiffs power of attorney, testified that she was familiar with her daugh[663]*663ter’s finances and was depositing her alimony checks and paying her bills. She also testified that the plaintiffs financial position had not changed since the date of the affidavit used at trial. The trial court concluded that under the circumstances, the testimony of the plaintiffs mother and examination of the plaintiffs original financial affidavit were reasonable substitutes for the plaintiffs presence and anew affidavit. The defendant argues that the plaintiffs mother’s testimony did not furnish a sufficient basis for the trial court’s order.

It is axiomatic that parties to a marital action should not be deprived of their appellate rights because of lack of funds. Febbroriello v. Febbroriello, 21 Conn. App. 200, 204-205, 572 A.2d 1032 (1990). Whether to award counsel fees in a dissolution action is within the discretion of the trial court. Tessitore v. Tessilore, 31 Conn. App. 40, 44, 623 A.2d 496 (1993). There must be an adequate evidentiary basis, however, on which the trial court may exercise its discretion. Castro v. Castro, 31 Conn. App. 761, 769, 627 A.2d 452 (1993).

The defendant relies on Castro v. Castro, supra, 31 Conn. App. 770-71, and Bartley v. Bartley, 27 Conn. App. 195, 197, 604 A.2d 1343 (1992), for the principle that “[i]t is a fundamental tenet of due process oflaw as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. ” (Internal quotation marks omitted.) Bartley v. Bartley, supra, 197-98. Those cases are distinguishable from the present case because in both Castro and Bartley the court modified or awarded counsel fees without any hearing whatsoever. Here, the trial court conducted a hearing and the gravamen of the defendant’s claim is that the evidence the trial court received at that hearing was insufficient to support an award of counsel fees.

[664]

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Bluebook (online)
685 A.2d 344, 43 Conn. App. 659, 1996 Conn. App. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durkin-v-durkin-connappct-1996.