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O'Brien v. O'Brien

Appellate Court of Connecticut

December 1, 2015

MICHAEL J. O'BRIEN
v.
KATHLEEN E. O'BRIEN

Argued September 25, 2015.

Page 596

Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Hon. Howard T. Owens, Jr., judge trial referee; judgment dissolving the marriage and granting certain other relief, from which the plaintiff appealed to this court; thereafter, this court reversed the judgment in part and remanded the case for further proceedings; subsequently, the court, Pinkus, J., rendered certain financial orders, and the plaintiff appealed to this court; thereafter, the court, Pinkus, J., issued an articulation of its decision.

Reversed; new trial.

SYLLABUS

The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court following the rendering of certain financial orders by the trial court on remand. The plaintiff previously had appealed to this court from the trial court's judgment of dissolution, and this court reversed that judgment as to all financial orders and directed that a hearing as to those orders be conducted on remand. The plaintiff claimed that the trial court on remand improperly skewed its distribution of the parties' marital assets in favor of the defendant because it had determined that he violated the automatic orders applicable in marital dissolution actions when he sold certain stock and exercised certain stock options prior to the dissolution judgment and while the appeal from that judgment was pending. Held that the trial court abused its discretion in distributing the parties' marital assets when it " took into account" the plaintiff's purported violation of the automatic orders without having found that his sale of certain stock and exercise of certain stock options were contumacious or done with an intent to hide or to dissipate the parties' marital assets: although the court found that the financial transactions violated the automatic orders, it was required to dispose of the marital assets pursuant to the marital property distribution statute (§ 46b-81) when it concluded that the plaintiff had acted on the advice of counsel and in good faith; moreover, the plaintiff was no less harmed than the defendant by any loss to the marital estate as a result of his transactions, and the defendant did not allege that he engaged in financial misconduct, no such conduct was apparent from the record, and his transactions did not dissipate the marital assets or cause harm that should have affected the distribution of the marital assets; accordingly, the judgment was reversed and the case was remanded for a new hearing as to all financial orders.

Daniel J. Klau, for the appellant (plaintiff).

George J. Markley, with whom was Aidan R. Welsh, for the appellee (defendant).

Beach, Prescott and Bear, Js. PRESCOTT, J. In this opinion the other judges concurred.

OPINION

Page 597

[161 Conn.App. 576] PRESCOTT, J.

The plaintiff, Michael J. O'Brien, whose marriage to the defendant, Kathleen E. O'Brien, was dissolved in September, 2009, appeals, challenging the new financial orders rendered by the trial court on remand following his prior appeal from the judgment of dissolution. See O'Brien v. O'Brien, 138 Conn.App. 544, 557, 53 A.3d 1039 (2012) (reversing dissolution judgment only as to financial orders and remanding for new trial on all financial issues), cert. denied, 308 Conn. 937, [161 Conn.App. 577] 66 A.3d 500 (2013). The dispositive issue raised by the plaintiff in the present appeal is whether, after remand, the court improperly skewed its equitable distribution of marital assets in favor of the defendant on the ground that the plaintiff had engaged in certain financial transactions, both prior to the dissolution judgment and while the appeal from that judgment was pending, that violated the automatic orders applicable in all marital dissolution actions. See Practice Book § 25-5.[1] Even if we assume without deciding that the court correctly found that the plaintiff's financial transactions amounted to technical violations of the automatic orders, we conclude that in the absence of some additional finding by the court that the plaintiff's actions were contumacious or were conducted with an intent to hide or to dissipate marital assets, the court improperly " took into account" the plaintiff's financial transactions and, for that reason, reduced

Page 598

the plaintiff's share of the property distribution. Accordingly, we reverse the judgment of the trial court and remand the matter for a new hearing on all financial orders.[2]

[161 Conn.App. 578] The following facts, which either were found by the court in its memorandum of decision or are undisputed in the record, and procedural history are relevant to our consideration of the issues raised on appeal. The plaintiff and the defendant were married in 1985. They had three children born of the marriage. At the time of the dissolution judgment in 2009, the children were nine, thirteen, and fifteen years old. Both parties are well educated, each having graduated with a degree from Cornell University. After the parties were married, the plaintiff also earned a law degree.

The plaintiff currently is employed as senior vice president, general counsel, and secretary of Omnicom Group, Inc. (Omnicom), a Fortune 200 company. Prior to that position, he worked as an attorney for several New York law firms. The plaintiff's base salary with Omnicom is $700,000 a year, but his compensation package also includes a variable annual cash bonus as well as a noncash component, which, in the past, has consisted of some form of company stock or stock options. Since 2004, the plaintiff's total yearly cash earnings averaged more than $1.2 million.

Prior to 2003, the defendant had a successful career in banking; her last position was as a managing director for Credit Suisse, where she earned more than $1 million a year. She left that career, however, in 2003, to devote her time to raising the parties' children. She returned to work in 2007, as an executive recruiter, but left that position in 2008. Later, in 2013, the defendant participated in a three month returnship program offered by JP Morgan Chase. On the basis of her earnings from the returnship program, the defendant has a present annual earning capacity of $143,000.

[161 Conn.App. 579] Money was never an issue for the parties until the dissolution action was commenced. Since 2001, they lived in a large home in Greenwich, where they often entertained. They frequently ...


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