MONIKA ABBOTT v. THOMAS ABBOTT.

2008 Ct. Sup. 7038
No. FST FA 06-4009042 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
April 24, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
LYNDA B. MUNRO, JUDGE.

Before the court are a variety of postjudgment motions by the parties which they assert will be resolved if the court determines: (1) whether, in the absence of their ability to agree, the parties’ judgment (incorporating their separation agreement) requires a determination by the court of the value of real estate at 33 Dairy Road, Greenwich; if so, what is the value as determined by the court; or (2) do the terms of their separation agreement require them to be bound by an agreed value at the time of the judgment.

The parties’ separation agreement provided a process for their division of the marital assets. At paragraph 4.1 the agreement provides, “It is the intention of the parties to divide all of their real and personal property on an equal basis . . . with the exception of the real property which has been or will be independently valued . . . [A]ll [other] financial assets . . . shall be valued as of 1/31/08.”

The defendant claims that the Dairy Road property is real property which will be independently valued. The plaintiff claims that it is real property which has been independently valued.

The following facts are found in resolution of this dispute. The parties’ co-counsel co-operated in retaining Michael Gold, a real estate appraiser, to value the Dairy Road property in September 2006. At that time he opined the fair market value of the property to be $3,800,000 as of September 21, 2006. In January 2008 the plaintiff’s attorney asked for an update of that valuation. Gold opined the fair market value of the property to be $3,600,000 as of January 29, 2008.

At the time of the parties’ uncontested dissolution of marriage (February 6, 2008) they each filed financial affidavits. In the plaintiff’s affidavit, she swore under oath that she valued the 33 Dairy Road real estate at $3,600,000 as of February 6, 2008. On January 29, 2008 the defendant, under oath, asserted the value of the property to be CT Page 7039 $3,800,000. He noted in his financial affidavit that the property was appraised by Michael Gold in October 2006.

The defendant argues that the language of the agreement is clear and therefore the court should not consider any additional evidence as to the meaning of its language.

The agreement provided mechanisms for valuing real estate in Prague, Czech Republic (¶ 3.5) and Slavonice, Czech Republic (¶ 3.6). The only remaining real estate (Block Island, Rhode Island) was listed by both parties as valued at $2,100,000.[1]

The use of the disjunctive “or” in ¶ 4.1 of the agreement makes it difficult for the court to know whether the parties intended the property to have already been valued in accordance with one of the appraisals at dissolution, or, to determine value in accordance with some other method (or by court hearing). Regardless, the court concludes that, in any case, the parties did not agree as to the value on the date of dissolution, each relying on their own knowledge and a different valuation appraisal by Mr. Gold.

Therefore, even if the court were to accept the plaintiff’s assertion that the parties had already appraised the property, their reliance was on different reports. The plaintiff argues the later appraisal was ordered on behalf of both parties; however, she has not met her burden of proof as to this assertion.

The defendant’s financial affidavit was signed before the Gold January 30, 2008 appraisal was issued. He was clearly not relying on it.

The parties’ agreement made orders of the court provided that the court would retain jurisdiction over certain issues, including valuation of the real estate.

Before the court for the determination of the fair market value of the 33 Dairy Road, Greenwich property as of February 6, 2008, were the parties’ financial affidavits, the two above-referenced Gold appraisals and the testimony and appraisal of the property by Michael J. Parsell, as of February 13, 2008. The court notes that this date in time is within one week of the dissolution of marriage and therefore the court finds it probative.

In valuating the property, the trial court is charged with the duty of making an independent valuation of the property involved. EF Realty v. CT Page 7040 Commission of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977). The trier is not limited to arbitrating the differing opinions of the witnesses but is to make determinations in the light of all the circumstances, the evidence, and his general knowledge. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435, A.2d 24 (1980); Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972). The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part. Smith v. Smith, 183 Conn. 121, 123, 438, A.2d 847 (1981); Richard v. A. Waldman Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967); see also Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221. Ultimately, the determination of the value of real estate is a matter of opinion, which eventually depends upon the considered judgment of the trial judge who takes into account the different opinions expressed by the various witnesses. Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693 (1959).

Town of Cromwell v. Tanguay, 1998, Ct.Sup. 12510.

The court considered the Gold January 29, 2008 and the Parsell February 13, 2008 professional appraisals the more relevant of the three because of their proximity in time to the date of dissolution of marriage. The court observed the demeanor of both appraisers when testifying. The court notes that no time adjustments were made by Parsell for comparables regardless of whether the comparable property closed in May 2007 or October 2007. His manner of treating the basement (first and lower level) varied significantly from Gold’s. The court notes that both appraisers utilized the 112 Parsonage Road property in their respective fair market value analyses. This was helpful to the court in considering both appraisals.

After considering all of the evidence, the court finds that as of February 6, 2008, the fair market value of 33 Dairy Road, Greenwich, CT was $3,810,000.

[1] A property in Providence, RI was only listed by defendant at the time of the dissolution. The two Czech Republic properties were only listed by the plaintiff at the time of the dissolution.

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