In this dissolution of marriage action the trial court awarded custody of the minor son to the mother and allowed reasonable visitation with the father but banned overnight visitation at the father's home so long as the father continues to reside with "another woman without the benefit of wedlock." The court also ordered a division of the marital property and payment by the defendant of periodic alimony and child support. On appeal the defendant claims that the court erred in finding certain facts and not finding others, in placing the restriction on overnight visitation, in using improper criteria to determine the monetary awards, and in imposing the following financial obligations on the defendant: payments to an educational fund for the minor child, maintenance of an insurance policy on his life for the benefit of the plaintiff, payment to the plaintiff of 20 percent of the royalties to be received for five years on a series of educational books which the defendant has written, and payment of $1000 of the plaintiff's counsel fees.
The trial court found that the parties were married in 1964 and had a son, Brian, born in 1971.
The defendant requests that we strike certain findings of fact made by the trial court in its memorandum of decision; he also wants us to add certain findings of fact. This court cannot find facts. Our function is to decide whether the decision of the trial court was "clearly erroneous in view of the evidence and pleadings in the whole record"; Practice Book § 3060D; Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 564, 438 A.2d 759 (1980); and "where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence...." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). See Hollingsworth v. Hollingsworth, 180 Conn. 212, 214-15, 429 A.2d 463 (1980). As for the request to strike certain findings of fact, a review of the record discloses the existence of some evidence supporting all of those facts. Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role. Munn v. Scalera, 181 Conn. 527, 530-31, 436 A.2d 18 (1980); Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048
The principal issue before us concerns the restriction ordered by the court when it awarded the defendant the right of reasonable visitation. The court awarded custody of the minor child to the mother. Although, in the pleadings, each party sought custody, there is no claim of error as to the custody award. The defendant, however, does claim that the court erred in placing on the father's right of reasonable visitation a restriction which bars overnight visitation so long as the father continues to live with a woman who is not his wife.
Throughout the country a significant number of adults are presently living with a member of the opposite sex without benefit of marriage. See Wadlington, "Sexual Relations After Separation or Divorce: The New Morality and the Old and New Divorce Laws," 63 Va. L. Rev. 249, 249-50 and n.2 (1977). Unfortunately, many of these adults are parents of children from a previous marriage; and trial courts across the nation have been confronted with the problem of fashioning custody and visitation orders affecting these children. The Illinois Supreme Court actually inferred future moral contamination despite an absence of proof of present
The majority approach has been to uphold visitation restrictions or custody changes where there has been some proof that the cohabitation has affected the child. DiStefano v. DiStefano, 60 App. Div. 2d 976, 977, 401 N.Y.S.2d 636 (1978) (lesbian relationship; testimony that the mother's lover tried to alienate the children from their father; mother's visits must totally exclude her lover); In re Jane B, 85 Misc.2d 515, 518, 380 N.Y.S.2d 848 (1976) (child's behavior and below-ability school performance attributed to emotional distress over mother's sexual relationship with another woman; custody changed to father with no overnight visitation with mother); Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 251, 397 A.2d 1192 (1979) (children's religious concern about wrongfulness of father's conduct; father's female companion to be
Similar visitation restrictions have been denied where the harm to the child is outweighed by other factors; People ex rel. Repetti v. Repetti, 50 App. Div. 2d 913, 914, 377 N.Y.S.2d 571 (1975) (greater weight given to strong preference of teenagers to live with father and to the visitation needs of younger children who are living with the mother); or where there has been no showing of an adverse effect on the child. Sorace v. Sorace, 236 Pa.Super. 42,344A.2d553 (1975).
Relying on In re the Marriage of Moore, 35 Colo. App. 280, 531 P.2d 995 (1975), the defendant contends that the trial court should not consider his living with a woman not his wife. The defendant's reliance is misplaced. There, the appellate court found error in the trial court's consideration of the parent's cohabitation as one factor in the custody decision because the Colorado statute, unlike the Connecticut statute, prohibits consideration of a parent's conduct which is separate from the parentchild relationship. Id., 282; Colo. Rev. Stat. § 14-10-124 (1973).
In Connecticut we must first look to the statute. General Statutes § 46b-56
Contrary to the claim of the defendant, the record does not show that the trial court conclusively presumed that it was against the best interests of the child to visit overnight with the noncustodial parent who cohabits with a person not his spouse. Compare Jarrett v. Jarrett, supra (Brennan, J., dissenting). The court did not say that the restriction was based solely on the fact of cohabitation. In the memorandum of decision, as to the issue of custody and visitation, the trial court discussed not only the father's admitted sharing of a bedroom and bed with the woman while the child was staying there overnight, but also the small size of the father's living quarters and the father's lack of effort to further the child's religious education.
The standard for reviewing a visitation order is whether the trial court abused its discretion in making that order. El Idrissi v. El Idrissi, 173 Conn. 295, 300-301, 377 A.2d 330 (1977). In exercising that discretion the court considers the rights and wishes of the parents and may hear the recommendations of professionals in the family relations field, but the court must ultimately be controlled by the welfare of the particular child. Seymour v. Seymour, 180 Conn. 705, 710-12, 433 A.2d 1005
The restriction, however, is overly broad in its application to any place "where the defendant is living with another woman without the benefit ofwedlock." The testimony before the trial court concerned only the woman with whom the defendant was cohabiting at the time of the hearing. Thus there is no basis in the evidence for the trial court to extend the restriction to any other woman. The judgment must be modified so that the overnight visitation restriction applies only to the particular woman who was living with the defendant at the time of the hearing.
A. EDUCATIONAL FUND
Prior to the dissolution decree the defendant had established a custodial savings account for Brian's benefit and had been depositing money to the account at the rate of approximately $1000 per year. The defendant's post-trial financial proposal
The defendant attacks this order on three grounds: (1) he did not agree to the deposits; (2) it is invalid for lack of a limitation at Brian's eighteenth birthday; and (3) the joint approval provisions are unworkable. The defendant testified that the fund was established and the deposits made by his agreement in early pretrial settlement negotiations following the separation of the parties. The court did not err in concluding that the defendant agreed to make such payments.
The legislature of this state has established eighteen years to be the age of majority. General Statutes § 1-1d. Consequently child support orders stemming from a dissolution action may not extend beyond the child's eighteenth birthday.
With respect to the assertion that the joint approval provision is unworkable, the simple answer is that future cooperation of the parties can only be measured in the future. If the provision proves to be unworkable, the proper approach is to seek modification of the order at that time. General Statutes § 46b-56; Cleveland v. Cleveland, 165 Conn. 95, 100-101, 328 A.2d 691 (1973).
B. INSURANCE POLICY
The defendant was ordered to designate the plaintiff as beneficiary on an insurance policy on his life. Such an order is well within the inherent equitable power of the court in a dissolution proceeding. Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); Thomas v. Thomas, 159 Conn. 477, 482-83, 271 A.2d 62 (1970). See Broaca v. Broaca, supra, 473-74 (Peters, J., dissenting on another issue). Insurance premiums are paid during a decedent's lifetime and the proceeds flow directly to the beneficiary. This is not analogous to a claim of continued payment of periodic alimony from the estate of the deceased ex-spouse. See Harrison v. Union & New Haven Trust Co., 147 Conn. 435, 437, 162 A.2d 182 (1960).
The defendant is a college professor. During the marriage he co-authored two textbooks and associated workbooks and teachers' manuals which
The defendant attacks this award as speculative. It is true that the exact dollar amount of the royalties to be received is not yet known; however, the right to receive the royalties is contractually established at the present time, unlike a potential inheritance which is speculative. See Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). This is more akin to an order to sell the marital home and divide the proceeds. See Pasquariello v. Pasquariello, supra, 586-87. Although the exact sale price will not be determined until a sale is concluded, the legal right to the proceeds existed at the time of the order. The award is precisely defined as to subject matter, royalties on a specific completed set of books, and time, five years. It is, therefore, neither indefinite nor speculative.
D. COUNSEL FEES
The defendant's only claim of error with respect to the award of partial counsel fees is that the court improperly applied the statutory criteria. See General Statutes § 46b-62; deCossy v. deCossy, 172 Conn. 202, 206, 374 A.2d 182 (1977). This is the same claim which the defendant makes regarding the total financial package of alimony and property
E. STATUTORY CRITERIA FOR ALIMONY AND PROPERTY AWARDS
The statutes governing alimony and the assignment of property in a dissolution proceeding require the court to consider the length of the marriage, the causes for the dissolution, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. General Statutes §§ 46b-82, 46b-81 (c). In addition, with respect to a property division, the court must consider each party's liabilities, opportunity for future acquisition of capital and income, and contribution toward the acquisition, preservation or appreciation of their property. General Statutes § 46b-81 (c). In awarding alimony the court must also consider any property assignment and the desirability of the custodial parent's securing employment. General Statutes § 46b-82.
The trial court stated that these provisions had been considered and that three factors predominate in this case: the parties' future health and earning capabilities, their individual contribution to jointly held property, and the cause of the breakdown of the marriage. All three factors are specifically mentioned in the statutes. The court received financial affidavits from both parties and testimony on these three factors as well as on the other statutory elements. No one factor is determinative of a financial award. Valante v. Valante, 180 Conn. 528, 530-31, 429 A.2d 964 (1980). It would be error to exclude testimony on any of the statutory factors. Posada v. Posada, 179 Conn. 568, 572-73,
To the extent that the defendant's argument rests on the premise that the sum of money awarded indicates an improper use of statutory criteria, the issue becomes whether the trial court abused its discretion in making the alimony and property division orders. Miller v. Miller, 181 Conn. 610, 611, 436 A.2d 279 (1980); Corbin v. Corbin, 179 Conn. 622, 427 A.2d 432 (1980); Fucci v. Fucci, supra. As in the custody matters discussed above, the trial court has a distinct advantage over an appellate court because of its proximity to the parties and the evidence which serves as a basis for alimony and property assignment decisions. Leveston v. Leveston, 182 Conn. 19, 23, 437 A.2d 819 (1980). The conclusions of the trial court will be disturbed only where the court could not reasonably conclude as it did. Leveston v. Leveston, supra; Miller v. Miller, supra; Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).
Both parties worked during the marriage and contributed to the assets which, at the time of the separation, were almost entirely held jointly. The financial affidavits of the parties indicate that at the time of the hearing the total income of each of the parties was approximately equal, as were their expenses. The plaintiff's figures included pendente lite alimony and child support and her then-current
It is apparent that the trial court acted reasonably in concluding as it did; we find no abuse of discretion in the awards relating to finances.
There is error only in the portion of the visitation restriction which applies the restriction to any woman not married to the defendant; the judgment is set aside and the case is remanded with direction to render judgment as on file except as modified in accordance with this opinion.
In this opinion the other judges concurred.