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Dinunzio v. Dinunzio

Court of Appeals of Connecticut

March 6, 2018

JOSEPH DINUNZIO
v.
CATHERINE DINUNZIO

          Argued December 4, 2017

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Suarez, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court denied the defendant's motion for reconsideration and reargument, and the defendant appealed to this court. Reversed in part; further proceedings.

          Brandon B. Fontaine, with whom, on the brief, was C. Michael Budlong, for the appellant (defendant).

          James E. Mortimer, with whom, on the brief, was Michael D. Day, for the appellee (plaintiff).

          Sheldon, Bright and Beach, Js.

          OPINION

          SHELDON, J.

         The defendant, Catherine Dinunzio, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Joseph Dinunzio, on the ground that the court erred in treating the plaintiff's pension, from which he began to receive payments shortly after he commenced this action, only as a source of income and not as property subject to equitable distribution. We agree with the defendant and, accordingly, reverse the judgment of the trial court and remand this case for a new trial.[1]

         The trial court set forth the following findings of fact in its January 25, 2016 memorandum of decision dissolving the parties' marriage. ‘‘The parties were married on May 17, 2003, in Orlando, Florida. . . . There is one minor child born to the parties since the date of the marriage . . . . The marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.

         ‘‘The plaintiff is sixty-one years old and in good health. He graduated from the [United States] Naval Academy, holds an aerospace engineering degree and has training in nuclear power. He served in the [United States] Navy on and off for twenty-eight years. He worked in the private sector for Northrop Grumman as a military consultant before being recalled to active duty. He retired as a Commander from the United States Navy [Navy] at age forty-nine. His last military assignment was in the country of Bahrain.

         ‘‘When the plaintiff retired from the Navy, one month after the parties married, he started working for himself as a day trader. In 2003, his day trading account was valued at $147, 375. Since then, he has consistently lost money trading. The parties' 2008 income tax return shows a business loss of $7748; the 2009 income tax return shows a business loss of $9136; the 2011 income tax return shows a business loss of $14, 274; and the 2013 income tax return shows a business loss of $11, 535.

         ‘‘He currently has $1000 left in his trading account. The plaintiff has not made any efforts to seek gainful employment since his retirement. In spite of the plaintiff's significant losses, his plans are to continue day trading as long as he has any money left in his trading account.

         ‘‘In July, 2014, the plaintiff elected to receive his military pension without a right of survivorship. At that time, he received $20, 000 in a lump sum. He currently receives $650 gross weekly from his pension with a net of $475. The plaintiff lists on his financial affidavit $681 in weekly expenses. That amount includes $70 per week on a first mortgage, $35 per week on a second mortgage, and $95 in property taxes. The plaintiff's assets include a Navy Federal Credit Union account with a current balance of $1000; a U.S.A. account with a current balance of $15; a TD Bank account with a current balance of $19; and savings bonds valued at $1130. He also has an [individual retirement account (IRA)] with a current balance of $600.

         ‘‘The plaintiff's financial affidavit lists a total of $57, 478 in liabilities. He has a USAA Visa with a balance of $14, 920; a Navy Federal Credit Union debt in the amount of $25, 000; a Lowes credit card with a balance of $1300; a Home Depot credit card with a balance of $400; a . . . debt in the amount of $9200 [that was owed to the mediator that the parties used ...


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