This case is a sequel to our decision in O'Bymachow v. O'Bymachow, 10 Conn.App. 76, 521 A.2d 599 (1987). There we found error in the trial court's refusal to hear the defendant's motion to open its judgment denying the defendant's motion for modification of an earlier judgment of dissolution. That motion to open was based on an allegation of fraud, and the court's refusal to hear the motion was based on the fact that the judgment which the defendant sought to open was on appeal. Id., 76-77.
We ordered the trial court to hear the defendant's motion to open promptly, and retained the defendant's original appeal on our docket pending the results of that hearing. Id., 78-79. Upon remand, the trial court denied the defendant's motion to open, finding that she had not established fraud. The defendant has specifically waived her right to appeal from that determination. We turn, therefore, to the merits of the defendant's original appeal.
The defendant appeals from the denial by the trial court, Clark, J., of her motion to modify that portion of the judgment of dissolution, Ottaviano, J., relating to unallocated alimony and support. The trial court concluded that the defendant had failed to show the necessary substantial change of circumstances. This appeal followed.
After a hearing held on October 1, 1985, the trial court on October 7, 1985, made the following specific factual findings.
The court also found that the plaintiff's net income in 1982 was $330 per week, and is now $340 per week. His employment is unchanged, he drives the same car as in 1982, and he carries the same amount of life insurance. He no longer owns $30,000 worth of stock which he owned in 1982, and his liabilities have increased by $76,000. The court also specifically found that, with reference to the parties' financial condition, "[t]he only items that have changed since the date of the dissolution were the pieces of real estate owned by the defendant and owned by the plaintiff," and that "[t]he only change of circumstances that [the] defendant has shown is that she has a man living in the house with her."
It is not necessary to address each of the six claims of error raised by the defendant. We conclude that, because of the coalescence of the merits of three of these claims, the "underpinning of the [court's] decision
"We recognize that a party seeking modification of financial orders incident to a marital dissolution judgment must clearly and definitely establish an uncontemplated
First, two sets of the court's specific findings are unsupported by the evidence in the case and are clearly erroneous. There is simply no evidence whatsoever to
The plaintiff argues that any errors in these findings of the court are harmless, because the finding regarding the amount of the defendant's weekly earnings, namely, $240, was supported by the evidence, and because the court's finding regarding the defendant's relationship with another man did not result in a decrease in her alimony. See General Statutes § 46b-8 (b); Kaplan v. Kaplan, supra. The error as to the nature of the defendant's employment, and its implicit reference to her earning capacity, and the error as to the nature of her relationship with the other man, might in isolation be harmless. Taken together, however, and taken with the other errors made by the trial court, they undermine appellate confidence in the court's fact finding process, and contribute to our conclusion that a new hearing is required.
Second, the court's finding that, with respect to the financial condition of the parties, the only changes
The defendant had the burden of establishing a substantial and unforeseen change of circumstances from the date of the judgment. Cersosimo v. Cersosimo, 188 Conn. 385, 405, 449 A.2d 1026 (1982). The issue presented by this set of facts is whether the financial base at the time of the judgment in October, 1982, is to be determined by reference to the values of the plaintiff's businesses in October, 1982, as established in the October 1985 modification proceedings, or whether that base is to be determined by reference to the values, or lack thereof, attributed to them by the plaintiff at the time of the original judgment in October, 1982. We conclude that, for purposes of determining whether their values in 1985 constituted a substantial change of circumstances, those values must be compared to the values, or lack thereof, as represented in the 1982 proceedings.
In October, 1982, the plaintiff in effect attributed no value to his businesses on his financial affidavit. Both
Third, the court's findings effectively disregarded undisputed facts showing a substantial increase in the value of the plaintiff's real estate. The plaintiff's October, 1982 affidavit indicated as his sole real asset a one-half interest in the parties' home in East Haven, valued at $12,500. His October, 1985 affidavit indicates a home in Branford valued at $525,000, which he owns jointly with his current wife, on which there is a mortgage of $150,000, yielding an equity owned by the plaintiff of $187,500.
This increase in the value of the plaintiff's real estate, namely $150,000, taken together with the attributed increase in the value of his wholly owned businesses of $202,000, indicates an increase in the value of these assets of $352,000 within three years. The court found that the plaintiff's earnings only increased from $330 per week in October, 1982, to $340 per week in October, 1985. In October, 1982, his total net assets were approximately $44,000. In October, 1985, his total net assets were approximately $373,000.
There is error, the judgment denying the defendant's motion for modification is set aside, and the case is remanded for a new hearing on that motion.
In this opinion the other judges concurred.