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Kent v. Dipaola

Court of Appeals of Connecticut

December 5, 2017

RICHARD KENT
v.
FLORENCE DIPAOLA

          Argued September 20, 2017

          David V. DeRosa, for the appellant (plaintiff).

          Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellee (defendant).

          DiPentima, C. J., and Kahn and Sullivan, Js. [*]

          OPINION

          DIPENTIMA, C. J.

         The plaintiff, Richard Kent, appeals from the judgment of the trial court setting forth financial orders incident to the dissolution of his marriage to the defendant, Florence DiPaola. On appeal, the plaintiff claims that the court erred with respect to its orders regarding the defendant's pensions, the marital home and the percentage of the marital estate that was awarded to him. We disagree and, accordingly, affirm the judgment.

         The following facts, as set forth in the court's memorandum of decision, and procedural history are relevant to our discussion. The parties met in March, 1989, and soon thereafter, the plaintiff moved into the defendant's home.[1] The parties were married in March, 1998, and have a minor child.[2] During the course of their relationship, the parties kept their finances separate. They also maintained records of ‘‘virtually everything'' that they purchased, and the ‘‘receipts were then tallied by the plaintiff and monitored by him through a monthly spreadsheet so that each party could pay their share. This included keeping track of such small details as how much was spent on phone calls, hot dogs, stamps, dog food and cookies.''

         In the late 1990s, the plaintiff worked in the financial sector, earning $168, 000 in 1998. In 2004, he switched careers and became a realtor. In 2013, he earned approximately $76, 000, but in 2014, only $7437. As a result of this decreased income, the plaintiff, who was sixty-three years old at the time of trial and had no health conditions that significantly impacted his ability to work, [3] had been using his retirement accounts to pay his living expenses. The defendant, who was nearly seventy-two years old at the time of trial, [4] was retired following ‘‘an impressive and accomplished work history that spanned forty-four years. She worked her way up the corporate ladder from a junior entry level position to a managing director.''

         The defendant had several pensions in pay status that provided her with approximately $50, 000 in gross annual income. The plaintiff presented a pension actuary as an expert witness. The pension actuary testified that the present value of the defendant's pensions totaled $662, 606. The defendant also received social security benefits for the child of approximately $1350 per month.

         With respect to its financial orders, [5] the court expressly considered all of the relevant factors set forth in General Statutes § 46b-81. The court stated: ‘‘In addition, the orders reflect the following specific considerations: (1) as previously noted, the defendant's contributions to the acquisition, preservation and appreciation of the assets is far greater than the plaintiff's contributions; (2) the defendant is being ordered by this decision to be more responsible than the plaintiff for the financial support of the parties' minor child; (3) the plaintiff's age, health and current employment status lead this court to conclude that he has a greater opportunity than the defendant to acquire assets and income postdissolution; (4) the plaintiff is more responsible than the defendant for the causes of the breakdown of the marriage;[6] (5) the defendant's noneconomic contributions to the marriage are far greater than those made by the plaintiff; (6) each party had a career and wealth at the time of the marriage, and the defendant had substantially greater premarital assets; (7) each party is fully capable of supporting themselves; (8) the length of the marriage; (9) the plaintiff has provided little to no financial support to the defendant for the benefit of the child since 2012; and (10) the unusual financial structure of this marriage where each party essentially kept their finances separate from each other, except for a sharing of some expenses for a substantial period of time.'' (Footnote added.)

         The court concluded that it was not necessary to calculate the value of the parties' assets at the time of the marriage with ‘‘mathematical precision . . . .'' The court stated: ‘‘Based upon the evidence, the court does find, however, that the defendant came to this marriage with far greater assets than the plaintiff, including, most significantly, the Stamford home where the parties resided together, and that the defendant's economic and noneconomic contributions to the acquisition, preservation and appreciation in the value of the parties' estates were substantially greater than those made by the plaintiff.''

         The court divided the combined current assets of the parties, totaling $4, 619, 655, [7] awarding 33 percent to the plaintiff and 67 percent to the defendant. To effectuate this division, the court ordered a distribution from the defendant to the plaintiff in the amount of $300, 000 pursuant to § 46b-81.

         The court did not include the defendant's pensions in this division. Instead, the court accounted for the defendant's pensions in a separate calculation. The court stated: ‘‘The present value of the defendant's pensions that are all currently in pay status are not included in this total since those pensions were substantially accrued prior to the marriage and are being treated as an income stream that will be used to support the defendant and the minor child with little financial contribution being ordered today to be paid by the plaintiff.''

         The court stated that, as a result of the division of assets and the defendant's receipt of social security income for the minor child, it was ordering that the defendant be responsible for the child's educational expenses and would not order the plaintiff to pay child support. In further explaining this order, the court noted the presumptive child support award under the applicable guidelines[8] would require the plaintiff to pay $257 per week to the defendant. The court stated: ‘‘Based upon the division of assets set forth in this decision, including the recognition that the defendant has a steady pension income stream and the plaintiff does not, a strict application of the guidelines in this case would be unfair and inappropriate, and a deviation on that basis from the presumptive support award is warranted.'' The court deviated from the child support guidelines on an equitable basis: the defendant, fully retired with a debt-free home, did not need financial support from the plaintiff, who was not similarly situated. Finally, the court ordered the defendant to be liable for the child's unreimbursed medical and dental expenses, and awarded the plaintiff $40, 000 for attorney's fees.[9] This appeal followed.

         Before addressing the specific claims raised by the plaintiff, we set forth certain relevant legal principles and our standard of review. ‘‘The purpose of a dissolution action is to sever the marital relationship, to fix the rights of the parties with respect to alimony and child support . . . [and] to divide the marital estate . . . .'' (Internal quotation marks omitted.) Rozsa v. Rozsa, 117 Conn.App. 1, 11, 977 A.2d 722 (2009).

         Section 46b-81 governs the distribution of the assets in a dissolution case. Gyerko v. Gyerko, 113 Conn.App. 298, 303, 966 A.2d 306 (2009). That statute authorizes the court to assign to either spouse all, or any part of, the estate of the other spouse. Id., 312. ‘‘In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, 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.'' General Statutes § 46b-81 (c); see also Cole-man v. Coleman, 151 Conn.App. 613, 616-17, 95 A.3d 569 (2014).

         Our standard of review is well established. ‘‘An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . 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. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant. . . .

         ‘‘Importantly, [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.'' (Citation omitted; internal quotation marks omitted.) Wood v. Wood, 160 Conn.App. 708, 720-21, 125 A.3d 1040 (2015); see also O'Brien v. O'Brien, 326 Conn. 81, 121-22, 161 A.3d 1236 (2017); Emerick v. Emerick, 170 Conn.App. 368, 378, 154 A.3d 1069, cert. denied, 327 Conn. 922, A.3d (2017). With these principles in mind, we now turn to the specific claims of the plaintiff.

         I

         The plaintiff first claims that the court erred with respect to its orders regarding the defendant's pensions. Specifically, he contends that the court improperly failed (1) to include the pensions in the division of the marital property and (2) to credit the testimony of his pension actuary as to the present value of the pensions. We conclude that, contrary to the plaintiff's claim, the court accounted for the pensions in its financial orders and, considering the totality of its orders, did not abuse its discretion in its valuation or distribution of the pensions. Further, we are not persuaded that the court improperly disregarded the testimony of the plaintiff's pension actuary.[10]

         The following additional facts are necessary for our discussion. During her career, the defendant worked for a number of companies, including GE Capital, Xerox, Citibank, Bank of America and MetLife.[11] As a result, she received several pensions that were in pay status at the time of trial and provided her with $961 per week, or approximately $50, 000 per year, of gross income. The plaintiff presented a pension actuary as an expert witness. The court stated: ‘‘The pension [actuary] testified as to the current present value of the defendant's pension benefits and also applied a coverture fraction to determine what [the pension actuary] described as the marital portions of those pensions with the numerator being the number of years that the benefit was earned during the marriage and the denominator being the number of total years that the benefit was earned with that employer.''

         The pension actuary determined that the defendant's Citigroup pension had a present value of $68, 415, but that the marital value was $0 because it had been earned prior to the marriage. The pension actuary further concluded that a pension from Aegon and the GE pensions had present values of $181, 060 and $413, 131, ...


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