JUAN B. INGLES v. MARIBEL C. INGLES
AC 44151
Appellate Court of Connecticut
December 6, 2022
Suarez, Clark and Sheldon, Js.
Argued March 2, 2022
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Syllabus
The defendant appealed to this court from the judgment of the trial court dissolving her marriage to the plaintiff and making certain financial orders and denying her motion for contempt. Before trial, the parties had entered into a stipulation in which the plaintiff agreed to make mortgage payments on the marital home. The trial court denied the defendant‘s subsequent motion for contempt, in which she alleged that the plaintiff failed to pay past due mortgage payments, on the ground that his failure to pay the mortgage was not wilful. Each party was employed at the time of trial and had a pension associated with that employment. The parties were unable to agree on a professional evaluator to value the pensions and, at trial, neither party presented testimony from an actuary as to the value of the pensions. The court awarded the defendant the marital home, ordered that the plaintiff transfer 75 percent of his 457 (b) retirement plan to the defendant, and ordered the plaintiff to pay the defendant periodic alimony in the amount of $250 per week for two years, to support the defendant while she refinanced the mortgage on the marital home. The court ordered that each party would retain sole ownership of his or her pension. Held:
1. The trial court correctly concluded that the plaintiff was not in contempt for failing to comply with a pendente lite order: the court did not find that the plaintiff was in wilful noncompliance of its order that he make certain mortgage payments, which the defendant, as the party seeking the order of contempt, had the burden to prove by clear and convincing evidence; in the present case, even though the court found that the plaintiff was late in making certain mortgage payments, it did not find that the plaintiff failed to make his best effort to make timely payments in violation of its order or that any such violation was wilful, and, because the court determined that the defendant failed to establish a prima facie case of contempt, the burden of production did not shift to the plaintiff to provide evidence in support of a defense of inability to comply with the court‘s order.
2. The defendant could not prevail on her claim that the trial court‘s periodic alimony award was an abuse of its discretion: the court‘s award of time limited alimony was for a permitted purpose in that it provided interim support to the defendant until she was able to either refinance the mortgage or to list the marital home for sale, and the two year duration of the award was not arbitrary because it was connected to the court‘s order to refinance the mortgage in that time frame and was consistent with the defendant‘s proposed orders in which she specifically requested a two year time period to pursue refinancing; moreover, the court did not fail to consider the factors set forth in the applicable statute (
3. Contrary to the defendant‘s claim, the trial court did not improperly fail to value the parties’ pensions and equalize their distribution: the court did not remove the parties’ pensions from the scales in determining an equitable division of the parties’ property but, instead, stated that both parties were entitled to a pension on retirement and that it took that into consideration in fashioning its financial orders, and the defendant could not assert that the court improperly failed to value the parties’ pensions given the scant evidence presented by the parties; moreover, the court was not required to “equalize” the pensions pursuant to the present division method and to distribute 50 percent of each pension to the parties, as the court is not required to distribute the pensions equally, or at all, for its order to be equitable, and this court could not conclude that the court‘s order declining to award the defendant a portion of the plaintiff‘s pension was inequitable in light of the totality of the court‘s financial awards.
4. The trial court did not abuse its discretion in declining to award the defendant attorney‘s fees: the defendant did not demonstrate how the court‘s failure to award her attorney‘s fees undermined the court‘s other financial orders because, when the court‘s orders are viewed as a whole, the court reasonably could have concluded that the defendant had sufficient funds to pay her attorney‘s fees without any risk of undermining the efficacy of the court‘s other financial orders, because, in addition to being awarded periodic alimony and a portion of the plaintiff‘s 457 (b) plan, the defendant continued to receive income from her employment and her financial affidavit indicated that she had money in checking and savings accounts.
Procedural History
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the defendant filed a cross complaint; thereafter, the defendant filed a motion for contempt; subsequently, the matter was tried to the court, Hon. James G. Kenefick, Jr., judge trial referee; judgment dissolving the marriage and granting certain other relief, and denying the defendant‘s motion for contempt, from which the defendant appealed to this court. Affirmed.
Randi L. Calabrese, with whom, on the brief, was Mohan Sreenivasan, for the appellant (defendant).
Joseph A. DiSilvestro, for the appellee (plaintiff).
Opinion
The following facts, which were either found by the court or are otherwise undisputed, and procedural history are relevant to our resolution of this appeal. The plaintiff and the defendant were married on August 7, 1999, and have two children
On March 18, 2020, after a trial that lasted for three days, the court, Hon. James G. Kenefick, Jr., judge trial referee, issued a memorandum of decision dissolving the parties’ marriage and issuing certain financial orders related to alimony and the division of the parties’ marital property. The court concluded that the parties’ marriage had broken down irretrievably and found the plaintiff to be more at fault than the defendant for that breakdown, as he “had several affairs of a somewhat brief nature a number of years ago and, although [the parties] had reconciled at times, [the defendant had] lost trust in him.”
The court awarded the defendant the marital home, located in East Haven, which had been purchased by the parties in 2007, and, at the time of trial, had a value of $305,000, with $71,000 in equity. The court ordered the plaintiff to quitclaim his interest in the property to the defendant and ordered the defendant to refinance the mortgage within two years. The court ordered that, if the defendant could not refinance the mortgage within two years, the property was to be sold and the defendant was to retain any net proceeds or be responsible for any deficiency. The court further ordered, among other things, that the plaintiff transfer 75 percent of his 457 (b) retirement plan to the defendant, that both parties retain their respective pensions, that each party retain his or her own personal injury claims, lawsuits, and workers’ compensation benefits, and that each party be responsible for the outstanding balances owed to his or her own attorneys in connection with the dissolution proceedings. The court ordered the plaintiff to pay the defendant periodic alimony in the amount of $250 per week for a period of two years, in order to provide support to the defendant while she refinanced the mortgage on the marital home.
In its memorandum of decision dissolving the parties’ marriage, the court also denied motions for contempt that the defendant had filed on December 11, 2019, and February 6, 2020, related to the plaintiff‘s continued obligation to make mortgage payments on the marital home while the dissolution action was pending.
On April 7, 2020, the defendant filed a motion for reconsideration, reargument,
I
The defendant first claims that the court improperly denied her December 11, 2019 motion for contempt. Specifically, the defendant argues that the court improperly placed the burden on her to demonstrate that the plaintiff‘s alleged noncompliance with the court‘s order was wilful and, in doing so, failed to shift the burden to the plaintiff to demonstrate, as a defense, his inability to comply with the order. We disagree.
The following additional facts are relevant to our resolution of the defendant‘s claim. During the parties’ marriage, the plaintiff paid the mortgage on their marital home and the defendant paid for most of their remaining household expenses, such as for utilities and food. During the pendency of the dissolution action, the parties entered into a pendente lite stipulation, in which the plaintiff agreed, among other things, to “continue making all mortgage payments, ongoing, as they come due.” The stipulation also provided that the plaintiff was responsible for any fees associated with late payments, as well as past due payments not paid to date. The stipulation was approved by the court and entered as an order. On July 25, 2019, the defendant filed a motion for contempt, alleging that the plaintiff had wilfully violated the court‘s order by failing to pay the past due mortgage payments and associated late fees, which amounted to $7724.44.
On October 9, 2019, after a hearing, the court denied the defendant‘s July 25, 2019 motion for contempt, finding that “the mortgage for the marital home is currently in arrears for the month of September, 2019, and is in the payment grace period for the month of October, 2019, as of the date of this order entering. However, the court does not find the [plaintiff‘s] failure to pay the mortgage during this period to be wilful.” In addition, the court ordered that “[t]he [plaintiff] shall pay the September and October, 2019 mortgage payments no later than [October 16, 2019], and shall continue to pay the mortgage each month until further order of the court. The [plaintiff] shall make his best effort to make all future mortgage payments on time.”
The defendant subsequently filed a motion for contempt on December 11, 2019, regarding the plaintiff‘s alleged wilful noncompliance with the terms of the court‘s October 9, 2019 order. The defendant claimed that the plaintiff had failed to make the November and December, 2019 mortgage payments in a timely manner and, therefore, a balance of $5672.39 remained past due.
The December 11, 2019 motion for contempt was heard together with the underlying dissolution action. With respect to the motion for contempt, the defendant offered as evidence letters from the parties’ mortgage subservicing company, dated November 4, 2019, and December 4, 2019, advising the parties that their mortgage was two months past due. The plaintiff testified that he made a payment on December 10, 2019, which was reflected in a subsequent statement from the parties’ mortgage servicing company. The
In its memorandum of decision dissolving the parties’ marriage, the court denied the defendant‘s December 11, 2019 motion for contempt.4 The court reasoned: “Although the [plaintiff] has been late in making [mortgage] payments, the [defendant] has not met her burden of proof that these late payments were wilful.” The court ordered, in its property division of the marital home, that “the [plaintiff] shall be responsible for the March, 2020 mortgage payment and any outstanding fees and charges which shall be promptly paid.”
We begin with the following legal principles that guide our analysis of the defendant‘s claim. “[C]ivil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts. . . . In part because the contempt remedy is particularly harsh . . . such punishment should not rest upon implication or conjecture, [and] the language [of the court order] declaring . . . rights should be clear, or imposing burdens [should be] specific and unequivocal, so that the parties may not be misled thereby. . . .
“To constitute contempt, it is not enough that a party has merely violated a court order; the violation must be wilful. . . . The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt. . . .
“It is the burden of the party seeking an order of contempt to prove, by clear and convincing evidence, both a clear and unambiguous directive to the alleged contemnor and the alleged contemnor‘s wilful noncompliance with that directive. . . . If the moving party establishes this twofold prima facie case, the burden of production shifts to the alleged contemnor to provide evidence in support of the defense of an inability to comply with the court order.” (Citations omitted; internal quotation marks omitted.) Puff v. Puff, 334 Conn. 341, 364-65, 222 A.3d 493 (2020); see also Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998) (“The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt. . . . The contemnor must establish that he cannot comply, or was unable to do so.” (Citation omitted; internal quotation marks omitted.)). “[E]ven in the absence of a finding of contempt, a trial court has broad discretion
Whether the trial court applied the correct legal standard to the defendant‘s motion for contempt is a question of law subject to plenary review. See, e.g., Dowling v. Heirs of Bond, 345 Conn. 119, 143 n.20, 282 A.3d 1201 (2022). “The question of whether the underlying order is clear and unambiguous is a legal inquiry subject to de novo review. . . . If we answer that question affirm-atively, we then review the trial court‘s determination that the violation was wilful under the abuse of discretion standard.” (Citation omitted.) Puff v. Puff, supra, 334 Conn. 365-66.5
In the present case, the court did not find that the plaintiff was in “wilful noncompliance” of the October 9, 2019 order, which the defendant, as the party seeking the order of contempt, had the burden to prove by clear and convincing evidence. See id., 365; see also Birkhold v. Birkhold, 343 Conn. 786, 811, 276 A.3d 414 (2022) (“[i]t is the burden of the party seeking an order of contempt to prove, by clear and convincing evidence, both a clear and unambiguous directive to the alleged contemnor and the alleged contemnor‘s wilful noncompliance with that directive” (emphasis added; internal quotation marks omitted)). In other words, even though the court found that the plaintiff had been late in making certain mortgage payments, it did not find that the plaintiff had failed to make his “best effort” to make those mortgage payments on time, in violation of the court‘s order, or that any such violation was “wilful.” Thus, the court determined that the defendant failed to establish a prima facie case of contempt and, therefore, the burden of production did not shift to the plaintiff to provide evidence in support of a defense of inability to comply with the court‘s order.
Accordingly, we conclude that the court correctly placed the burden on the defendant to demonstrate the plaintiff‘s wilful noncompliance with the court‘s order, and, on the basis of the evidence presented, the court did not abuse its discretion by declining to hold the plaintiff in contempt.
II
The defendant next claims that the court abused its discretion in awarding her alimony in the amount of $250 per week for a period of two years. Specifically, she argues that (1) “there is no support or logic to the court‘s limitation of alimony” to a duration of two years, and (2) in calculating the alimony award, the court failed to consider certain factors set forth in
The following additional facts are necessary to our consideration of this claim. During the dissolution proceedings, the parties’ submitted several financial affidavits
The plaintiff‘s December 20, 2019 financial affidavit indicated that his gross weekly income was $1995, with the inclusion of certain overtime and extra duty pay, and that his net weekly income was $1305. The defendant‘s February 6, 2020 financial affidavit indicated that her gross weekly income was $1167, and that her net weekly income was $825.
In her proposed orders to the court, the defendant requested alimony in the amount of $650 per week for the remainder of her lifetime or, in the alternative, $450 per week plus 50 percent “of all monies derived from [the plaintiff‘s] additional income, including, but not limited to, overtime and extra duty performed at his current job.” She also requested that she retain the marital home, including 100 percent of the parties’ equity in the home, and that “[t]he plaintiff shall remain on the mortgage for two years, at which time the house [will] be sold should the defendant be unable to refinance.” The plaintiff, in his proposed orders, requested that “[n]either party shall pay nor receive periodic alimony” and, instead, the defendant could retain the plaintiff‘s one-half share of equity in the marital home, valued at $35,500, as a “lump sum alimony buyout . . . .” The plaintiff further requested that the defendant “immediately” refinance the mortgage and that, if she was unable to refinance within 120 days, the marital home would be listed for sale.
At trial, the defendant confirmed her desire to keep the marital home and to pursue refinancing of the mortgage. She testified that she previously had tried to refinance the mortgage but could not, because her credit was “really, really bad” due to the home going into foreclosure in 2011 and because her income was insufficient to sustain the home.
When the court asked the defendant whether she believed she could afford the home given her current income, the defendant responded, “I don‘t know.” She subsequently testified that she put approximately $800 per month into Christmas club and vacation club accounts through her employment, and that such funds could be available to pay household bills, even though she was not currently using the funds for that purpose.6
In its memorandum of decision dissolving the parties’ marriage, the court stated that it “carefully considered the testimony of the parties and witnesses, documents entered into evidence, the financial affidavits of the parties, their proposed orders, the court file, and the statutory criteria and case law for . . . the award of alimony . . . .” The court indicated that the parties’ “gross and net incomes are as set forth on their financial affidavits” and specifically referenced the plaintiff‘s December 20, 2019 financial affidavit and the defendant‘s February 6, 2020 financial affidavit.
The court ordered the plaintiff to pay the defendant alimony as follows: “The [plaintiff] shall pay to the [defendant] periodic alimony in the amount of [$250] per week . . . . Alimony shall terminate upon the death of either party, the remarriage or civil union of the [defendant] or two . . .
The following legal principles guide our analysis of the defendant‘s claim. “We review financial awards in dissolution actions under an abuse of discretion standard. . . . In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Citation omitted; internal quotation marks omitted.) Horey v. Horey, 172 Conn. App. 735, 740, 161 A.3d 579 (2017).
“The generally accepted purpose of . . . alimony is to enable a spouse who is disadvantaged through divorce to enjoy a standard of living commensurate with the standard of living during marriage. . . . In addition to the marital standard of living, the trial court must also consider the factors in . . .
“[Section] 46b-82 (a) provides in relevant part that [i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the [division of property made] pursuant to [
“Time limited alimony is often awarded. . . . The trial court does not have to make a detailed finding justifying its award of time limited alimony. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court‘s award. . . . There must be sufficient evidence to support the trial court‘s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand. . . . In addition to being awarded to provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency, time limited alimony is also appropriately awarded to provide interim support until a future event occurs that makes such support less necessary or unnecessary.” (Internal quotation marks omitted.) O‘Neill v. O‘Neill, 209 Conn. App. 165, 177, 268 A.3d 79 (2021).
On appeal, the defendant first argues that the court‘s “expressly stated
The court‘s award of time limited alimony, however, is for a permitted purpose in that it “provide[s] interim support until a future event occurs that makes such support less necessary or unnecessary.” (Internal quotation marks omitted.) O‘Neill v. O‘Neill, supra, 209 Conn. App. 177. In the present case, that “future event” is either that “[t]he [defendant] shall refinance said mortgage within two years to remove [the plaintiff‘s] name” or, “[i]n the event the property has not been refinanced within two years, it shall be listed for sale and aggressively marketed for sale immediately at the end of the two years.” Moreover, the two year duration of that time limited alimony is not arbitrary, as it also is connected to the court‘s order to refinance the mortgage. Additionally, the court‘s award is consistent with the defendant‘s proposed orders, in that the defendant specifically requested a two year time period to pursue refinancing. Accordingly, the court did not abuse its discretion in structuring the alimony award as it did.
The defendant next argues that “the court failed to consider all of the statutory factors required by . . .
The court, however, explicitly stated that it had considered the statutory criteria for its award of alimony. The record reflects that the court also had considered the plaintiff‘s ability to earn income from overtime and extra duty pay, because such income was reflected on the plaintiff‘s December 20, 2019 financial affidavit, which the court specifically referenced in its
The defendant‘s assertion that the court should have based its alimony award on the parties’ respective earning capacities, rather than their actual incomes, merits little consideration. The fact that a court may consider a party‘s earning capacity does not mean that it is required to do so. It is well settled that “[w]hether to base its financial orders on the parties’ actual net income or their earning capacities is left to the sound discretion of the trial court.” Buxenbaum v. Jones, 189 Conn. App. 790, 801, 209 A.3d 664 (2019). Accordingly, we conclude that the court did not abuse its discretion in awarding alimony to the defendant in the amount of $250 per week for a period of two years.
III
The defendant next claims that the trial court improperly failed to value the parties’ pensions and “equalize” their distribution. We disagree.
The following additional facts are necessary to our consideration of this claim. As mentioned previously in this opinion, both parties have retirement assets. The defendant has a pension with the state of Connecticut,9 and the plaintiff has a pension with the city of New Haven in addition to a 457 (b) retirement plan. The plaintiff valued his 457 (b) retirement plan at $40,095.
During the pendency of the dissolution action, the parties agreed “to equally pay for the valuations of both pensions” and that the “evaluator [would] be agreed upon through counsel . . . .” The parties, however, were unable to agree on a professional evaluator. At trial, neither party presented testimony from an actuary with respect to the value of their pensions. Instead, the parties continually marked the value of their respective pensions as “unknown” on their financial affidavits.
Regarding his pension, the plaintiff testified that he had been employed by the New Haven Police Department for approximately eighteen years, since October, 2002, and, before that, he had worked as a custodian for the city of New Haven for approximately six years and that he had been in the military. The plaintiff explained that his pension from the custodian position was “rolled over” into his pension from the police department. The plaintiff further explained that he was eligible to retire from the police department on October 17, 2022, after twenty years of service. He offered as an exhibit a pension benefit
The defendant presented testimony from Jessica Criscuolo, the payroll supervisor for the city of New Haven, who produced a different pension benefit calculation as to the plaintiff‘s pension. Criscuolo testified that she believed the plaintiff was eligible to retire that month, because he had “bought back” 6.48 years of service, either from his custodian position or his time in the military, and she was “assuming that [the plaintiff] will buy back two more [years] . . . with his sick time to make him eligible.” Criscuolo‘s pension benefit calculation indicated that, on the basis of a retirement date of December 17, 2019, the plaintiff would receive annual pension benefits in the amount of $70,372.84, with a monthly payment of $5864.40.
The only exhibit presented at trial regarding the defendant‘s pension, which had been offered by the plaintiff, was a letter from a retirement counselor at the State Employees Retirement Commission, dated October 31, 2019. The letter, addressed to the defendant, stated: “If you left state employment today and elected to commence benefits [under the early retirement provisions] effective July 1, 2021 the first of the month following your fifty-fifth birthday, with [twenty-one] years and [four] months of credited service and an average salary of [$73,600] for your three highest paid years of state service, your yearly basic allowance would be approximately [$12,859] payable at [$1071] monthly.” The letter also stated that, if the defendant retired under normal retirement provisions, and her average salary remained the same, then her “yearly basic allowance would be approximately [$21,981] payable at [$1831] monthly.” The letter further explained: “Currently, your account has $23,004.52 in employee contributions and $14,850.57 in awarded interest posted to it. . . . Since the [s]tate funds [the State Employees Retirement System] on an actuarial basis there is no state contribution individually assigned to a member‘s account. Additionally since this office does not have actuaries on staff we are unable to provide you with information regarding the actuarial value of this benefit plan.”
On February 6, 2020, the final day of trial, the defen-dant submitted an updated financial affidavit that, for the first time, assigned a value of $37,854 to her pension. The plaintiff‘s counsel questioned the defendant as to how that value was calculated, and the defendant‘s counsel interjected and explained that the figure came from the letter from the State Employee Retirement Commission. The plaintiff‘s counsel argued to the court that “the problem is there‘s a value put on a pension and it didn‘t correctly value. So, it‘s a very small amount of money that‘s put on and counsel, nor am I, [are] qualified . . . [to] value pensions in order to put a number on there and to have the court rely on that as the total value of someone‘s pension.” The defendant‘s counsel then explained that “this just reflects what is actually accumulated to date from the exhibit that‘s in evidence in terms of employee contributions plus the interest that‘s in it. . . . [I]t‘s very transparent about where it comes from.” The defendant‘s counsel subsequently acknowledged that the value listed on the financial affidavit did not reflect the present value of the defendant‘s pension.10
In its memorandum of decision, the trial court concluded that “[n]either party has valued the state and city pensions which each is entitled to receive upon retirement. The figure of [$37,854] listed on the [defendant‘s] financial affidavit as the value of her state pension is not the present value of that pension. . . . [B]oth parties are entitled to a pension upon retirement and that has been taken into consideration when putting together these financial orders.” The court then ordered that “[e]ach party shall retain sole ownership of their respective pension plans as listed on their financial affidavits free and clear of any claim by the other,” and ordered the plaintiff to transfer 75 percent of his 457 (b) retirement plan to the defendant.
The following legal principles guide our analysis of the defendant‘s claim. “[Section] 46b-81 governs the distribution of the assets in a dissolution case. Section 46b-81 (a) authorizes the court to assign to either spouse all or any part of the estate of the other spouse. . . . Section 46b-81 (c) provides for the court‘s consideration of the length of the marriage, the causes for the dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” (Internal quotation marks omitted.) Anketell v. Kulldorff, 207 Conn. App. 807, 834-35, 263 A.3d 972 (2021), cert. denied, 340 Conn. 905, 263 A.3d 821 (2021).
“[A] fundamental principle in dissolution actions is that a trial court may exercise broad discretion in dividing property as long as it considers all relevant statutory criteria. . . . While the trial court must consider the delineated statutory criteria [when allocating property], no single criterion is preferred over others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case. . . . In dividing up property, the court must take many factors into account. . . . A trial court, however, need not give each factor equal weight . . . or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.” (Internal quotation marks omitted.) Kent v. DiPaola, 178 Conn. App. 424, 431-32, 175 A.3d 601 (2017).
“As a general framework, [t]here are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within
It is well settled that pension benefits constitute property subject to equitable distribution under
In Krafick v. Krafick, supra, 234 Conn. 800-804, our Supreme Court discussed three methods of valuing and distributing pension benefits. “The first, called the present value or offset method, requires the court to determine the present value of the pension benefits, decide the portion to which the nonemployee spouse is entitled, and award other property to the nonemployee spouse as an offset to the pension benefits to which he or she is otherwise entitled. . . . For defined benefit pensions, present value represents the sum which a spouse will take at the present time in return for giving up the right to receive an unknown number of monthly checks in the future.” (Citations omitted; internal quotation marks omitted.) Id., 800. “Once the court has determined the present value of the benefits at issue, it may, in light of relevant equitable considerations, award those benefits to the employee spouse and/or may offset the nonemployee‘s equitable share in the pension benefits with an award of other assets.” Id., 801.
Calculating a pension‘s present value “depends on several factors, including the employee spouse‘s life expectancy, the proper interest rate for discount and the date of retirement,” and, therefore, such a calculation requires the use of “generally accepted actuarial principles.” (Internal quotation marks omitted.) Id., 800-801; see also Bender v. Bender, supra, 258 Conn. 756-57 (“[c]alculating [a pension‘s present value] may require taking actuarial testimony, which generally involves: (1) determining future benefits, taking into consideration the date of the employee spouse‘s retirement, postmarital salary, future taxes and the duration of benefits; and (2) discounting for present value, the probability of mortality and the probability of forfeiture“).
The present value method “has the advantage of effecting a ‘clean break’ between the parties” and “avoids extended supervision and enforcement by the
“The second and third recognized methods for valuing and distributing pensions involve delaying distribution until the pension matures.” Id., 803. Under the second method, called the “present division” method, “the trial court determines at the time of trial the percentage share of the pension benefits to which the nonemployee spouse is entitled. The court may then . . . presently divide or assign the pension benefits between the spouses. . . . In other words, the court will declare that, upon maturity, a fixed percentage of the pension be distributed to each spouse.” (Citation omitted; internal quotation marks omitted.) Id. Although one disadvantage of the present division method is “the cost of prolonging the parties’ entanglement with each other,” a significant advantage to this approach is that it “impose[s] equally on the parties the risk of forfeiture.” (Internal quotation marks omitted.) Bender v. Bender, supra, 258 Conn. 759. “This method does not require expert testimony from an actuary“; Kent v. DiPaola, supra, 178 Conn. App. 436; and its use is “favored when . . . the evidence is inadequate to establish present value.” Krafick v. Krafick, supra, 234 Conn. 804.12
Under the third method discussed in Krafick, called the “reserved jurisdiction” method, “the trial court reserves jurisdiction to distribute the pension until benefits have matured. Once matured, the trial court will determine the proper share to which each party is entitled and divide the benefits accordingly.” (Internal quotation marks omitted.) Id., 803. Our Supreme Court has expressly rejected utilizing the reserved jurisdiction method. See Bender v. Bender, supra, 258 Conn. 761 (explaining that “the statutory scheme regarding financial orders appurtenant to dissolution proceedings prohibits the retention of jurisdiction over orders regarding . . . the division of the marital estate” (internal quotation marks omitted)).
The method of valuing and distributing pension benefits is to be left to the sound discretion of the trial court. Kent v. DiPaola, supra, 178 Conn. App. 436; see also Bornemann v. Bornemann, 245 Conn. 508, 532, 752 A.2d 978 (1998) (“[i]n selecting and applying an appropriate valuation method, the trial court has considerable discretion“). “[I]t is within the trial court‘s discretion to choose, on a case-by-case basis, among the present value method, the present division method of deferred distribution, and any other valuation method that it deems appropriate in accordance with Connecticut law that might better address the needs and interests of the parties. . . . The touchstone of valuation, as well as the ultimate distribution of pension benefits, is the court‘s power to act equitably.” (Citation omitted; internal quotation marks omitted.) Bender v. Bender, supra, 258 Conn. 760.
On appeal, the defendant first argues that the court “improperly valued the pensions of the parties by assigning them no value in the distribution of the property.” Relying heavily on Krafick v. Krafick, supra, 234 Conn. 783, the defendant also contends that the
In Krafick v. Krafick, supra, 234 Conn. 805-806, the trial court failed to consider the plaintiff‘s pension interest as an asset because it did not have a liquid value and the court did not employ a substitute value. Our Supreme Court concluded that it was an abuse of discretion “to reject present value or any value for vested pension benefits merely because the asset is nonliquid, thereby effectively removing that property interest from the scales in determining an equitable division of all of the property before the court.” Id., 806.
The present case is distinguishable from Krafick. Unlike the trial court in Krafick, the trial court in the present case did not remove the parties’ pensions from the scales in determining an equitable division of the parties’ property but, instead, explicitly stated that “both parties are entitled to a pension upon retirement and that has been taken into consideration when putting together these financial orders.” (Emphasis added.) The court then distributed the parties’ pensions in a manner consistent with the present division method, in that it assigned a “fixed percentage of the [pensions] . . . to each spouse“; Krafick v. Krafick, supra, 234 Conn. 803; by ordering that each party retain sole ownership, or 100 percent, of his or her respective pension. See, e.g., Riccio v. Riccio, 183 Conn. App. 823, 824-25, 828-29, 194 A.3d 337 (2018) (trial court utilized present division method when it ordered each party to retain his or her respective pensions).
Although, in Krafick, our Supreme Court noted that “a trial court, when utilizing a method to ascertain the value of a pension, should reach that value on the record“; (emphasis added) Krafick v. Krafick, supra, 234 Conn. 804; our Supreme Court also has recognized, in Bornemann v. Bornemann, supra, 245 Conn. 535, that, “when neither party in a dissolution proceeding chooses to introduce detailed information as to the value of a given asset, neither party may later complain that it is not satisfied with the court‘s valuation of that asset.”13 See also id., 536 (“[i]f the parties fail to [provide the court with the approximate value of each asset], the equitable nature of the proceedings precludes them from later seeking to have the financial orders overturned on the basis that the court had before it too little information as to the value of the assets distributed“).
In the present case, the defendant cannot assert that the court improperly failed to assign a specific value to the parties’ pensions given the scant evidence of valuation presented by the parties. Neither party presented evidence as to the present value of their respective pensions, in the form of expert testimony or otherwise, and “[i]t is not the function of the court to make calculations of that sort to fill evidentiary gaps.” Mongillo v. Mongillo, 69 Conn. App. 472, 481, 794 A.2d 1054, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002). The defendant recognizes that “the only evidence presented as to the value of [her] pension was the amount of her contributions,” and, as her counsel acknowledged before the trial court, that value does not accurately reflect the pension‘s actual value.14 Moreover, the defendant recognizes that “the only evidence presented regarding the plaintiff‘s pension [was] calculations as to the expected benefit,” rather than the total present value, and the parties’ calculations conflicted. The court, therefore, was unable to assign a specific value to the parties’ pensions.
To the extent that the defendant also contends that the court was required to “equalize” the parties’ pensions pursuant to the present division method and to distribute 50 percent of each pension to the parties, we disagree. The court is not required to distribute the pensions equally, or at all, for its order to be equitable. See, e.g., Casey v. Casey, 82 Conn. App. 378, 387, 844 A.2d 250 (2004) (no abuse of discretion when court ordered that both parties retain their own pensions, as “the court was not obligated to divide equally, or in any manner, the portion of the parties’ pensions that accrued during the term of the marriage“).
Moreover, we are not persuaded by the defendant‘s argument that the court‘s order was inequitable because “her pension benefits and earning capacity are substantially less than the plaintiff‘s,” given the entire mosaic of the court‘s judgment. Section 46b-81 (a) “permits the farthest reaches from an equitable division as is possible, allowing the court to assign to either the husband or wife all or any part of the estate of the other. . . . On the basis of the plain language of
Considering the totality of the court‘s financial awards, we cannot conclude that the court‘s order, which declined to award the defendant a portion of the plaintiff‘s pension, was inequitable. See Riccio v. Riccio, supra, 183 Conn. App. 824-27 (no abuse of discretion in distribution of retirement assets when court distributed portion of 401 (k) plan but ordered that “[t]he parties shall retain, free and clear of any claim by the other, their defined benefit plans” (internal quotation marks omitted)); see, e.g., Mongillo v. Mongillo, supra, 69 Conn. App. 482 (“[g]iven the totality of the court‘s property disposition awards, the court did not act improperly in failing to
IV
Finally, the defendant claims that the court abused its discretion in denying her request for attorney‘s fees. Specifically, the defendant contends that the court‘s denial of her claim for attorney‘s fees “undermines the rest of the financial orders.” We disagree.
The following additional facts are necessary to our consideration of this claim. In the defendant‘s proposed orders, which were filed with the court on the final day of trial, the defendant requested that “[t]he plaintiff shall pay to the defendant $12,000 in attorney‘s fees.” In her financial affidavit submitted on that same date, the defendant stated that she owed her counsel‘s law firm $11,084 and marked that debt as a “joint” liability. The defendant subsequently filed an affidavit of fees and costs, indicating that she had incurred a total of $24,945.43 in attorney‘s fees. In his proposed orders, the plaintiff requested that the defendant pay him $5000 in attorney‘s fees. In his December 20, 2019 financial affidavit, the plaintiff indicated that he owed his counsel‘s law firm $28,714.
In its memorandum of decision dissolving the parties’ marriage, the court noted that the debt listed on the defendant‘s financial affidavit in connection with her counsel‘s law firm was the defendant‘s “sole debt and not a joint debt.” The court then ordered that “[e]ach party shall be responsible for the outstanding balances [owed] to their own attorney in connection with these proceedings.” The court explicitly stated that it weighed the applicable statutory factors in arriving at this decision.
We begin our analysis by setting forth the applicable legal principles and standard of review.
“Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. . . . An exception to the rule . . . is that an award of attorney‘s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine its prior financial orders . . . . [A]n award of attorney‘s fees in a marital dissolution case is warranted only when at least one of two circumstances is present: (1) one party does not have ample liquid assets to pay for attorney‘s fees; or (2) the failure to award attorney‘s fees will undermine the court‘s other financial orders. . . .
“Whether to allow counsel fees, [under
On appeal, the defendant claims that the court‘s failure to award her attorney‘s fees undermines the court‘s other financial orders awarding her a portion of the plaintiff‘s 457 (b) plan and awarding her alimony. Specifically, the defendant first contends that she “still owed at least [$11,084]” in legal fees, which would constitute approximately one third of the $30,071 that she would receive from the plaintiff‘s 457 (b) plan. The defendant also argues that the court‘s denial of attorney‘s fees “eviscerates virtually the entire alimony awarded,” as she would receive approximately $26,000 in alimony over the course of two years and she had incurred a total of approximately $25,000 in attorney‘s fees.
Viewing the court‘s financial orders as a whole, however, instead of in isolation, we cannot conclude that the court abused its discretion in declining to award attorney‘s fees to the defendant.15 We recognize that the defendant had requested $12,000 in attorney‘s fees, not the total amount of attorney‘s fees that she had incurred. Although “ample liquid funds [are certainly] not an absolute litmus test for an award of counsel fees“; (internal quotation marks omitted) Dowling v. Szymczak, 309 Conn. 390, 411-12, 72 A.3d 1 (2013); the court reasonably could have concluded that the defendant had sufficient funds to pay her attorney‘s fees without any risk of undermining the efficacy of the court‘s other financial orders. In addition to being awarded $250 per week in alimony and 75 percent of the plaintiff‘s 457 (b) plan, valued at approximately $30,071, the defendant continued to receive income from her employment, and her February 16, 2020 financial affidavit indicated that she had $5794 in checking and savings accounts.
In light of the record, therefore, the defendant has not demonstrated how the court‘s “failure to award attorney‘s fees would [have] undermine[d] the court‘s other financial orders.” Bornemann v. Bornemann, supra, 245 Conn. 544. Accordingly, we conclude that the court did not abuse its discretion in declining to award attorney‘s fees to the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
JOSEPH J. SUAREZ
APPELLATE COURT JUDGE
Notes
“[The Defendant‘s Counsel]: Your Honor, this was really just an attempt to be completely transparent in terms of . . . it‘s her . . .
“The Court: But it‘s not the value of the pension.
“[The Defendant‘s Counsel]: . . . [T]hen I‘ll own that. . . [M]y apology, Your Honor. I didn‘t intend it to be that, I just wanted to be clear for the court how much had accumulated to date.
“The Court: If it‘s a defined benefit plan, it‘s certainly worth a lot more than what‘s shown on the financial affidavit.
“[The Defendant‘s Counsel]: . . . [W]e‘re happy to amend that, Your Honor. There was nothing on there before.
“The Court: All right, that‘s fine. You don‘t need to amend it. I just . . . so I understand where it comes from.”
On a financial affidavit filed after the date of the dissolution, the defendant again marked the value of her pension as “unknown.”