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Brash v. Brash

Court of Appeals of Connecticut

January 30, 1990

Colin BRASH
v.
Elizabeth Ann BRASH.

Argued Oct. 11, 1989.

Page 45

Diane Atkins Sikorsky, Old Lyme, with whom, on the brief, was Claudia J. Triggs, Hartford, for appellant (defendant).

Howard M. Gould, with whom was Patricia Gillin, Old Saybrook, for appellee (plaintiff).

Before EDWARD Y. O'CONNELL, NORCOTT and FOTI, JJ.

[20 Conn.App. 610] FOTI, Judge.

The defendant appeals from the judgment rendered in an action for the dissolution of her marriage, claiming the trial court erred (1) in entering its alimony award, (2) in limiting cross-examination concerning the plaintiff's financial affidavit, (3) in excluding a deposition as evidence, (4) in distributing the property between the parties as it did, and (5) in failing to make its order in compliance with General Statutes § 46b-84(c). We find error as to the final issue only.

The parties were married in Massachusetts on May 20, 1979. They are the parents of two minor children, a son, born March 12, 1980, and a daughter, born May 14, 1982. The plaintiff is college educated and is now the sole proprietor of an architectural drafting business that had been in existence for five years at the time of the dissolution. The defendant attended college for less than one year. Her only employment was at unskilled, low paying jobs some nine years Before the dissolution, and her primary responsibility during the course of the marriage was the care of the parties' two children.

The major asset of the parties was a jointly held parcel of undeveloped land in Lyme, originally purchased [20 Conn.App. 611] for $15,500, and valued at between $250,000 and $265,000 at the time of the dissolution. The parties had a liability of $55,000 against the land and $31,000 in other debts.

The court ordered joint custody of the parties' two minor children who are to make their primary residence with the defendant. The plaintiff was ordered to pay $100 per week per child in child support and $100 per week in time limited alimony limited to a period of three years and nonmodifiable in amount or duration. The court also ordered that the Lyme property be sold, and that the parties debts, excluding a $25,000 business debt that was assessed to the plaintiff, be paid out of the proceeds of the sale. The court awarded 75 percent of the net equity to the defendant and 25 percent to the plaintiff. The plaintiff and the defendant were each ordered to pay one half of any federal tax liability resulting from this sale.

The plaintiff was also ordered to maintain health insurance for both the defendant and the children, to pay all unreimbursed health and dental expenses, and to pay $2000 to assist the defendant in obtaining a new place to live.

The defendant's first claim is that the trial court erred in its award of alimony. She bases that claim on the court's failure to consider all of the statutory criteria under General Statutes § 46b-82, [1] its failure

Page 46

to consider [20 Conn.App. 612] evidence regarding the plaintiff's income and its award of limited and nonmodifiable alimony. The defendant claims that the court erred when it found no fault and failed to consider either the age, health, occupation, vocational skills or the estate and need of the parties. She asserts that the court applied only one of the specified criteria, namely her employability, in arriving at its conclusion.

"The well settled standard of review in domestic relations cases is that the reviewing court will not disturb a trial court order unless there has been an abuse of discretion or unless the finding of the trial court has no reasonable basis in the facts." Rose v. Rose, 10 Conn.App. 391, 393, 523 A.2d 914 (1987).

"On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria in awarding [alimony]." Mihalyak v. Mihalyak, 11 Conn.App. 610, 620, 529 A.2d 213 (1987). A judge is presumed to have performed his duty properly unless the contrary appears. See Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985).

A trial court must consider a number of factors in making an alimony award. Further, it may exercise broad discretion in considering the statutory criteria enumerated in § 46b-82. O'Neill v. O'Neill, 13 Conn.App. 300, 312-13, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). There is no requirement, however, that the trial court recite each of the statutory factors in its decision; Mihalyak v. Mihalyak, supra, 11 Conn.App. at 619, 529 A.2d 213; Benson v. Benson, 5 Conn.App. 95, 100, 497 A.2d 64 (1985); or give equal weight to each of the statutory [20 Conn.App. 613] criteria. DeVellis v. DeVellis, 15 Conn.App. 318, 322, 544 A.2d 639 (1988). "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony ... as long as it considers all relevant statutory criteria. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn.App. 356, 358, 512 A.2d 979 (1986)." Debowsky v. Debowsky, 12 Conn.App. 525, 526, 532 A.2d 591 (1987).

The defendant in this case has failed to demonstrate to this court that the trial court did not consider the relative financial situations of the parties and other criteria enumerated in ยง 46b-82 Before awarding alimony. In addition, our ...


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