Borkowski v. Borkowski

Berdon, J., with whom Peters, C. J.,

joins, dissenting.

Although I agree that the trial court incorrectly admitted evidence concerning the three areas outlined in part IIB of the majority opinion, I disagree with the reasoning of the majority and the result reached. I conclude that the defendant has failed to sustain his burden of proving that the admission of this evidence was harmful to his case. Indeed, an examination of both the transcript and the trial court’s memorandum of decision clearly establishes that this evidence was harmless.

It is clear that before the defendant could be granted any relief on his motion to modify the unallocated order by reducing or terminating alimony, he had to prove that there had been a substantial change in circumstances since the last modification. Fahy v. Fahy, 227 Conn. 505, 510, 630 A.2d 1328 (1993); Sunbury v. Sunbury, 216 Conn. 673, 677, 583 A.2d 636 (1990); Benson v. Benson, 187 Conn. 380, 383 n.3, 446 A.2d 796 (1982); Theonnesv. Theonnes, 181 Conn. 111, 113-14, 434 A.2d 343 (1980). The transcript indicates that the trial court admitted the evidence in question for the limited purpose of determining whether there had been such a change in circumstances.1 While this evidence *750should not have been admitted for this purpose because it pertained to financial information that predated the last modification, it is inconceivable that its admission was harmful to the defendant.

First, the trial court found in favor of the defendant on the issue for which the evidence was admitted— that is, that there had been a substantial change in circumstances since the last modification. This conclusion entitled the defendant to a consideration of whether there should be a modification. “It is a settled rule of law that the admission of evidence which favors the appellant cannot be a ground of error. Maltbie, Conn. App. Proc. § 39.” Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 578-79, 271 A.2d 94 (1970); see also Ansonia v. Cooper, 66 Conn. 184, 193-94, 33 A. 905 (1895); cf. Markey v. Santangelo, 195 Conn. 76, 82, 485 A.2d 1305 (1985); State v. Gradzik, 193 Conn. 35, 39, 475 A.2d 269 (1984).

Second, if we consult the trial court’s memorandum of decision,2 not only did the trial court find in favor of the defendant on this issue, but it is clear that this conclusion was predicated on properly admitted evi*751dence.3 The trial court then proceeded, without any reference to the evidence that the majority finds harmful, to modify the order in accordance with the mandates of General Statutes § 46b-82.4

I believe that the trial court, in its memorandum of decision, precisely followed our established law. In Hardisty v. Hardisty, 183 Conn. 253, 258-60, 439 A.2d 307 (1981), Chief Justice Peters, writing for a unanimous court, articulated our law as follows: “Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony and support [see General Statutes §§ 46b-82 and 46b-84] are relevant to the question of modification. . . . These require the court to consider, without limitation, the needs and financial resources of each of the parties and their children, as well as such factors as health, age and station in life. ... In making its determination of the applicability of these criteria, the trial court has broad discretion . . . .’’(Citations omitted.) It is clear from the memorandum of decision that the trial court first considered whether there had been a substantial change in circumstances, then separately considered the question of modification using the criteria in § 46b-82. Accordingly, the admission of this evidence was harmless to the defendant not only *752in regard to the issue of change in circumstances, but also concerning the determination of the modification order.

The majority claims, however, that the evidential rulings were nevertheless harmful because the trial court may have considered the evidence in determining the amount of the modification. To get to this point, the majority states that the evidence admitted to establish a change in circumstances “comes into play in the trial court’s structuring of the modification orders.” The majority elaborates on this new standard by stating that the trial court, in making its decision regarding the modification of the award, “should evaluate the circumstances of the parties as they exist at the time of the modification hearing, compare them to what they were at the time of the last court order and arrive at a fair and equitable determination.” If this means that the change in a party’s situation—in this case, for example, the defendant’s reduction in income by $668.96 per week—is relevant to anything other than establishing a change in circumstances, it is contrary to our established law. How much a party’s income has increased or decreased is not relevant to determining the amount of the modification. What is relevant is the situation of each party in reference to the established criteria of § 46b-82—“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 and . . . [any child support award made] and . . . the desirability of [the custodial] parent’s securing employment.” In other words, the amount of the modification is based not on the degree or amount of change since the last order, but on the current circumstances of the parties5 in light of the § 46b-82 criteria. *753See Rubin v. Rubin, 204 Conn. 224, 236, 527 A.2d 1184 (1987). Nevertheless, the majority concludes that the admission of the evidence was necessarily harmful because under its new standard, the degree or the amount of the change in circumstances is relevant in determining the amount of the modification order. I believe that both this standard and the majority’s finding of harmfulness are incorrect.

Even if this court were to overrule such precedents as Rubin v. Rubin, supra, 204 Conn. 224, and Hardisty v. Hardisty, supra, 183 Conn. 253, and adopt the new standard announced in the majority opinion, the defendant still would not be entitled to prevail. The appellant bears the burden of proving that improper evidential rulings were harmful. DiBerardino v. DiBerardino, 213 Conn. 373, 385, 568 A.2d 431 (1990). Furthermore, “[e]rror will not be predicated upon a ruling on evidence unless the record shows that the ruling was material to the conclusion reached.” Dudley v. Hull, 105 Conn. 710, 721, 136 A. 575 (1927). “[T]he conclusions reached by a court in a case tried without a jury will be tested by this court only by a review of the subordinate facts found by the trial court . . . .” Barbieri v. Cadillac Construction Corp., 174 Conn. 445, 451, 389 A.2d 1263 *754(1978) ; Benson v. Benson, supra, 187 Conn. 383; Jacobsen v. Jacobsen, 177 Conn. 259, 265, 413 A.2d 854 (1979) . This court generally concludes that improper evidential rulings are harmful in cases in which the trial court makes a factual finding based on the improper evidence and that finding may have been relied upon. See, e.g., Barbieri v. Cadillac Construction Corp., supra, 450-51; Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 516, 227 A.2d 83 (1967). On the other hand, this court generally concludes that such rulings are harmless in cases in which the trial court’s memorandum of decision makes no reference to the improperly admitted evidence, or in which it is otherwise clear that the evidence was not relied upon. See, e.g., Eichman v. J & J Building Co., 216 Conn. 443, 457-58, 582 A.2d 182 (1990); Season-All Industries, Inc. v. R.J. Grosso, Inc., 213 Conn. 486, 500, 569 A.2d 32 (1990); Wolk v. Wolk, 191 Conn. 328, 333, 464 A.2d 780 (1983). Here, the trial court’s memorandum of decision makes no such reference, and it is otherwise clear that the trial court did not rely upon the improperly admitted evidence.6

*755As previously noted, the memorandum of decision demonstrates that: (1) the trial court found that there had been a substantial change in circumstances, and this conclusion was specifically predicated on properly admitted evidence; and (2) having found a substantial change in circumstances, the trial court relied upon the factors listed in § 46b-82, the proper statutory criteria, in making the modification order. The trial court’s memorandum of decision is silent concerning the evidence that was considered in applying the statutory criteria for an award. Without an articulation7 of the facts the trial court considered in applying the criteria of § 46b-82, it is “sheer speculation” to assume that the court used evidence that was improperly admitted to show a change in circumstances8 between the 1983 decree and the present in determining the amount of the modification. See DiBerardino v. DiBerardino, supra, 213 Conn. 385.

I find it troubling that the majority uses verbal acrobatics in order to find harmful that which is clearly harmless. “Substantial errors will be committed for *756which a remedy must be given, but an appellate court ought not to be expected to create substance out of shadows, to conjure up errors out of trifles, or to seek for judicial irregularity by microscopic processes, speculative imaginings, or refined reasoning.” Foote v. Brown, 81 Conn. 218, 227, 70 A. 699 (1908). The Appellate Court was correct when it summarily affirmed the judgment of the trial court.

I respectfully dissent.

In admitting evidence on the defendant’s increase in income since the date of the original decree, the trial court limited the purpose of this evidence as follows: “I think the Court is limited to change in circumstances. How far can we look into the original judgments? I will decide that later. We are looking for change in circumstances warranting elimination of alimony. ... I feel that the question asked was relevant to that point.” (Emphasis added.)

In admitting evidence on the depletion of the plaintiffs investment account, the trial court limited its purpose as follows: “I don’t want to sound like an advocate but it seems to me that it is relevant to these proceedings. *750You claimed expressly that there was a change of circumstances warranting the termination of alimony and any evidence as to whether or not there has been a change in circumstances. One change in circumstances I see is that there was a $37,000 asset that is now $518 and that is a change in circumstances and that is relevant to why and the court would like to hear it.” (Emphasis added.)

In admitting evidence that the defendant terminated his retirement plan, in which the plaintiff had been granted an interest by the original decree, the trial court limited its purpose as follows: “I’ll allow it as indicating a change in circumstances . . . from the original conditions of the original decree . . . and give it whatever weight it’s worth.” (Emphasis added.)

Although the majority acknowledges that the memorandum of decision does not refer to the improperly admitted evidence, the opinion gives no weight to this crucial fact.

The trial court wrote in its memorandum of decision: “The court finds that there has been a substantial change in circumstances as to the plaintiffs and the defendant’s income. The plaintiff is now working and the defendant is earning less. However, the plaintiffs health though improved is still a problem for her and is now complicated by a 15% permanent total disability of her cervical spine. The court finds that the plaintiff’s permanent disability and the defendant’s diminution in income [were] not contemplated.”

The trial court stated: “The court in applying the mandates of General Statutes § 46b-82 to the facts and circumstances of this case and in the exercise of its equitable powers grants the defendant’s motion to modify the orders of alimony and support but denies the defendant’s motion to terminate alimony.”

While the focus should be on the current circumstances of the parties, the trial court has a broad discretion to consider any circumstances “which *753may be appropriate for a just and equitable resolution of the marital dispute.” (Internal quotation marks omitted.) Sands v. Sands, 188 Conn. 98, 105, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). Therefore, the trial court’s discretion in fashioning a modification award should not be circumscribed to exclude circumstances that antedate the last modification order. As we have stated many times, “[ajwards of support and alimony fall within the trial court’s equitable powers and [t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of marriage. LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983); Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982).” (Internal quotation marks omitted.) Darak v. Darak, 210 Conn. 462, 478, 556 A.2d 145 (1989). These equitable powers give the court the authority, in fashioning a modification award, to consider all the circumstances it considers relevant in addition to the mandatory criteria of General Statutes § 46b-82.

The majority cites Bosworth v. Bosworth, 131 Conn. 389, 391, 40 A.2d 186 (1944), as holding that harm must be presumed whenever a trial court improperly admits evidence and fails to indicate in the memorandum of decision what weight that evidence was given. I have two problems with this. First, that case appears to predate this court’s establishment of the principle that an appellant bears the burden of proving that an improper evidential ruling was harmful. The earliest case I have found that is cited for this proposition is DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798 (1955). Earlier cases indicate that the burden was on the appellee to show clearly that the ruling was harmless. See, e.g., Buckingham’s Appeal from Probate, 60 Conn. 143, 160, 22 A. 509 (1891).

Second, the facts of Bosworth clearly distinguish it from the present case. The evidence that was improperly admitted in Bosworth, which involved an action for divorce, was testimony that the defendant husband had been married before and was divorced by his wife on the ground of intolerable cruelty. Bosworth v. Bosworth, supra, 131 Conn. 390. This court noted that “the natural effect of such evidence was to impugn the character of the *755defendant both as a husband and as a witness.” Id., 391. Unlike the improperly admitted evidence in this case, which involved financial matters, the evidence in Bosworth concerned the defendant’s character and therefore could have affected the trial court’s view of his whole case.

See Practice Book § 4051.

Because it is clear that the trial court limited the use of this evidence to the issue of change in circumstances, I do not consider whether the evidence could properly be admitted for purposes of determining the modification order. See footnote 5. Nevertheless, the defendant concedes that in determining the amount of the modification, the trial court could have judicially noticed and considered any facts in the court file. The file includes prior memoranda of decision, hearing transcripts and financial affidavits of the parties. So, for example, by consulting the file in this case, the trial court could have taken into consideration the memorandum of decision on the original dissolution decree and all of the prior financial affidavits submitted by the parties. By doing this, the trial court could have properly admitted all of the facts that the defendant argues are objectionable and prejudicial. I fail to appreciate how the admission of the same facts through testimony before the trial court could possibly have prejudiced the defendant.