Gyerko v. Gyerko

966 A.2d 306

113 Conn.App. 298

Maricica GYERKO v. Zsigmond GYERKO.

No. 28693.

Appellate Court of Connecticut.

Argued November 14, 2008.

Decided March 24, 2009.

George W. Kramer, for the appellant (defendant).

Donald F. Reid, Norwalk, filed a brief for the appellee (plaintiff).

DiPENTIMA, LAVINE and BEACH, Js.

LAVINE, J.

In this marital dissolution action, the defendant, Zsigmond Gyerko, appeals from the judgment of the trial court with respect to the court's financial orders. The defendant claims that the court improperly (1) found that the parties owned an apartment in Romania worth $35,000 to $40,000, (2) failed to find that the plaintiff, Maricica Gyerko, owned property in Romania, (3) found that each party contributed $50,000 to the purchase of the marital home, (4) found that the plaintiff contributed $48,000 to paying down the mortgage on the marital home, (5) considered factors listed in General Statutes §§ 46b-81 and 46b-82 and (6) precluded testimony from his witness.¹ We affirm the judgment of the trial court.

The following facts, as found by the court, are relevant for our consideration of the appeal. The parties married on February 25, 1974, in Brasov, Romania. They had two daughters who were adults at the time of the dissolution proceedings. In 1988, the parties left Romania for Greece and in 1990 arrived in the United States. After living in New York City from 1990 until 2000, the parties relocated to Connecticut. They purchased the marital home in Bethany in 2001.

The plaintiff filed for divorce on May 17, 2005. The court rendered judgment dissolving the marriage. The court concluded that the marriage had broken down irretrievably and that the defendant solely was responsible for its breakdown. After stating that it had considered carefully the factors enumerated in General Statutes §§ 46b-62, 46b-81, 46b-82 and other relevant statutes, the court ordered each party to be responsible for his or her own health insurance and debts and to retain his or her pension and checking accounts. The court ordered no alimony for either party. It awarded the marital home, with an estimated value of $300,000 to the plaintiff and ordered her to give the defendant $50,000, or the equivalent of his share of the down payment on the home. The court also awarded the defendant $4100 for his minimal contributions to the upkeep of the home minus the expenses caused by his wilful destruction of the home. The defendant was awarded the parties' apartment in Romania. Additional facts will be set forth as necessary.

"Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders...." Casey v. Casey, 82 Conn.App. 378, 383, 844 A.2d 250 (2004). "[T]his court will not disturb the trial court's orders unless it has abused its legal discretion or its findings have no reasonable basis in fact.... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented.... [W]here 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 or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous." (Internal quotation marks omitted.) Guarascio v. Guarascio, 105 Conn.App. 418, 421, 937 A.2d 1267 (2008).

"In pursuit of its fact-finding function, [i]t is within the province of the trial court ... to weigh the evidence presented and determine the credibility and effect to be given the evidence.... Credibility must be assessed ... not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] ... [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) Blum v. Blum, 109 Conn.App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).

I

The defendant's first claim on appeal is that the court improperly found that the parties owned an apartment in Romania. The defendant argues that the court's finding that the parties own an apartment worth $35,000 to $40,000 is not supported by any evidence because both parties testified at trial that the Romanian government confiscated the apartment after they left Romania in 1988. We disagree.

The following additional facts are relevant to our resolution of this issue. In her amended prayer for relief, the plaintiff asked the court to award to the defendant the apartment jointly owned by the parties in Romania. At trial, the plaintiff testified that the parties purchased an apartment in Brasov, Romania, after they were married and moved into it in 1978. She submitted into evidence a notarized deed in the defendant's name for an apartment in Brasov, Romania, issued on October 7, 1980, and specifying the address of the apartment. She further testified that the Romanian government confiscated the apartment after the parties left Romania in 1988. She, however, testified that pursuant to the laws of the European Union, of which Romania is a member, rightful owners of confiscated property can regain their legal title to it. She also testified that the defendant informed her that he had started the process of regaining the apartment during one of his numerous visits to Romania. She estimated the value of the apartment to be between $35,000 and $40,000. On cross-examination, the plaintiff stated that her estimate of the value was based on the amount the parties' friends obtained for a similar apartment.

The defendant testified that the apartment had been confiscated by the Romanian government, that he unsuccessfully tried to get it back on multiple occasions and that he would be very happy to give it to his wife, if he ever regained it.

In its memorandum of decision, the court found that "[t]he parties own an apartment in Romania.... The more credible evidence is that it's worth $35,000 to $40,000. [The defendant] has traveled to Romania frequently." (Citation omitted.) The court also found that the defendant had hidden earnings throughout the marriage and altered documents in the court file.

General Statutes § 46b-81, which governs distribution of the parties' assets in a marital dissolution action, lists the factors that the court must take into account when "fixing the nature and value of the property, if any, to be assigned" to the parties.

"With respect to the court's credibility determinations, this court is compelled to state, what has become a tired refrain, [which is that] we do not retry the facts or evaluate the credibility of witnesses.... It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Citation omitted; emphasis in original; internal quotation marks omitted.) Doody v. Doody, 99 Conn.App. 512, 519-20, 914 A.2d 1058 (2007).

"It is [also] within the province of the trial court to find facts and draw proper inferences from the evidence presented.... [W]here 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 or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous." (Internal quotation marks omitted.) Guarascio v. Guarascio, supra, 105 Conn. App. at 421, 937 A.2d 1267. "A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Schade v. Schade, 110 Conn.App. 57, 66, 954 A.2d 846, cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008).

The issue before us, therefore, is whether the court's finding that the parties owned an apartment in Romania was clearly erroneous in light of the evidence in the record. We conclude that it was not. The plaintiff submitted into evidence a notarized deed to the apartment bearing the defendant's name. The deed's authenticity had not been challenged by the defendant. The court heard conflicting testimony from the parties regarding their legal right to regain the apartment, which was confiscated during the communist regime in Romania. The defendant offered no evidence refuting the plaintiff's testimony that because Romania is a member of the European Union and bound by its laws, the parties are rightful owners of the apartment that was unlawfully seized by the country's past regime. "The trial court is the arbiter of credibility, and it may accept all, some or none of a witness' testimony." Crews v. Crews, 107 Conn. App. 279, 313, 945 A.2d 502, cert. granted on other grounds, 288 Conn. 901, 952 A.2d 809 (2008).

On the basis of our review of the record, we also conclude that the court's finding that the apartment was worth $35,000 to $40,000 was not clearly erroneous. The court heard the plaintiff's uncontroverted testimony that an apartment owned by the parties' friends and similar to theirs was sold for that amount. "Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.... Ultimately, the determination of the value of the land depended on the considered judgment of the [trial court], taking into account the divergent opinions expressed by the witnesses and the claims advanced by the parties." (Internal quotation marks omitted.) Melillo v. New Haven, 249 Conn. 138, 153, 732 A.2d 133 (1999).

We conclude that the court...