Martone v. Martone

611 A.2d 896, 28 Conn. App. 208, 1992 Conn. App. LEXIS 272
CourtConnecticut Appellate Court
DecidedJuly 14, 1992
Docket10420
StatusPublished
Cited by16 cases

This text of 611 A.2d 896 (Martone v. Martone) 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
Martone v. Martone, 611 A.2d 896, 28 Conn. App. 208, 1992 Conn. App. LEXIS 272 (Colo. Ct. App. 1992).

Opinion

Daly, J.

The defendant appeals from the trial court’s financial awards rendered in a marital dissolution action. The defendant claims that the trial court improperly (1) awarded expenses related to the marital residence as lump sum alimony, (2) awarded lump sum alimony in contradiction to a previous agreement between the parties accepted by the court that limited the remaining issues to an award of periodic alimony and child support, (3) awarded damages to the plaintiff, which is beyond the scope of the court’s jurisdiction in a marital dissolution action, (4) ordered an [210]*210arrearage in child support to be paid as lump sum alimony, and (5) failed to recognize that the stipulation between the parties gave the plaintiff assets worth $200,000 more than the assets given to the defendant. In her cross appeal, the plaintiff challenges the court’s award of child support. She claims that the court incorrectly computed the defendant’s income by taking into account a federal income tax deduction reported in his financial affidavit even though the defendant admitted that he had not paid federal income taxes for a number of years. The plaintiff further claims that the court’s award of child support was improperly based on the defendant’s pretrial financial affidavit instead of on the defendant’s trial testimony, which established a higher income.

The following facts are pertinent to this appeal. On March 31,1989, the plaintiff sought a dissolution of her marriage to the defendant. At the time of the dissolution, there were three minor children issue of the marriage, ranging in age from fourteen to eleven years. On January 9, 1991, the parties entered into a stipulated agreement, which they characterized as a resolution of equitable distribution issues. The agreement, which consisted of oral and written stipulations, provided for joint custody and visitation of the children as well as for the distribution of the parties’ property.1 After reading the agreement into the record, the court questioned both parties about their understanding of [211]*211the agreement. Both parties asked the court to accept the stipulated agreement. The court rendered a judgment according to the parties’ stipulation, dissolving the marriage, establishing custody and visitation, and distributing the parties’ property. The court retained jurisdiction over the matter as to alimony and child support. The defendant contends that the court retained jurisdiction only as to periodic alimony while the plaintiff contends that the court retained jurisdiction to award both periodic and lump sum alimony. The court understood its role to include discretion to order lump sum alimony. The trial court heard testimony about the unresolved issues at hearings on April 5, 12 and 23, 1991. A review of the record reveals that the parties, during their marriage, acquired houses and rehabilitated them as rental units. The parties were able to generate income from the rental of these apartment units, which was distributed according to the stipulated agreement. The court found that both parties were skillful in developing these properties as rental units.

The plaintiff received the marital residence located in Branford as part of the stipulated agreement. The plaintiff testified that the parties moved into the marital residence in December, 1985. In April, 1989, the defendant left the plaintiff. The plaintiff spent approximately $30,000 during the summer of 1990 to repair the marital residence and another $2000 after the property distribution agreement was rendered on Janu[212]*212ary 9, 1991. The defendant did not contribute to the cost of the repairs. The plaintiff also testified that another $25,000 for future repairs was necessary for the marital residence. The plaintiff was aware of the condition of the house at the time that she entered into the stipulated agreement. The defendant’s mother bought a house in Branford where the defendant lived during these proceedings. The defendant’s mother made a down payment of $25,000 and obtained a mortgage for the balance of $100,000. The defendant makes the mortgage payments.

The defendant testified that he had not paid any income tax from 1986 until the time of this action. The defendant claimed to have received a tax credit because the parties rehabilitated the rental properties. On his financial affidavit, the defendant claimed a reduction of his net income for income tax. The court found that neither party had paid federal income taxes in the recent past and that they were unlikely to begin paying federal taxes in the future.

In its memorandum of decision, the court noted that both parties were capable of acquiring and rehabilitating properties to accumulate income. The court, referring to the plaintiff, stated that “[w]ith her realty holdings as collateral and a proven track record, she will be able to get mortgages and go on if she so decides.” The court found that the defendant was responsible for the breakdown of the marriage. The defendant was ordered by the court to maintain a life insurance policy for the benefit of his three children in the sum of at least $100,000 until the youngest child reached majority. The court ordered the defendant to pay $16,000 to the plaintiff, which constituted half of the $32,000 spent on repairing the family residence. The defendant also was ordered to pay another $12,500 to the plaintiff as contribution toward the estimated cost of further remodeling of the marital residence. The [213]*213court also awarded the plaintiff $9500, representing contribution toward the estimated cost for a new automobile. The court ordered the defendant to pay the plaintiff $15,000 “as damages for his conduct in brutally causing the breakup of this marriage.” The court set the child support award at $73 per child per week for a total of approximately $220 per week. By agreement of the parties, the child support award was retroactive from February 1, 1991.

In response to a motion for articulation filed by the plaintiff, the court clarified its financial orders. The court noted that the $15,000 ordered as damages was in fact an award of alimony. The court emphasized that the $2874 child support arrearage resulting from the parties’ agreement that the award would be effective as of February 1, 1991, was just that and not part of the lump sum alimony award. The court further stated that it did not include in the defendant’s income the monthly rental of $470 from the temporarily vacant apartment on Edwards Street. The defendant appealed from the court’s decision and the plaintiff brought a cross appeal.

I

The defendant claims that portions of the trial court’s lump sum alimony award constitute a modification of the previous nonmodifiable judgment. The defendant argues that the $16,000 award for past repairs and the $12,500 award for future repairs of the marital residence and the award of $9500 for the purchase of a new automobile were impermissible modifications of the property distribution that the parties entered into in their stipulated agreement on January 9, 1991. The defendant argues that this violated General Statutes § 46b-86.2 We agree with the defendant that the awards [214]*214of $16,000 and $9500 constituted an improper modification of the property distribution judgment. On this basis, we reverse those aspects of the trial court’s financial awards.

The plaintiff received the marital residence pursuant to the stipulated agreement that divided ownership of the parties’ property.

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Bluebook (online)
611 A.2d 896, 28 Conn. App. 208, 1992 Conn. App. LEXIS 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martone-v-martone-connappct-1992.