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Forgione v. Forgione

Court of Appeals of Connecticut

December 11, 2018

BEATRICE FORGIONE
v.
MENNATO FORGIONE

          Argued September 11, 2018

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon. Stanley Novack, judge trial referee, rendered judgment dissolving the marriage and granting certain other relief; thereafter, the court, Emons, J., approved the stipulation of the parties to open the judgment as to financial issues; subsequently, the court, Schofield, J., issued certain orders; thereafter, the court, Schofield, J., granted the defendant's motion for reargument and issued certain orders, and the defendant appealed to this court, which vacated the judgment and remanded the case for further proceedings; subsequently, the defendant, on the granting of certification, appealed to our Supreme Court, which remanded the case to this court for reconsideration. Affirmed.

          Thomas C. C. Sargent, for the appellant (defendant)

          Norman A. Roberts, II, with whom, on the brief, was Tara C. Dugo, for the appellee (plaintiff)

          Keller, Bright and Beach, Js.

          OPINION

          BRIGHT, J.

         This case returns to us on remand from our Supreme Court.[1] The defendant appeals from the judgment of the trial court opening the judgment of dissolution and reissuing financial orders. On appeal, the defendant claims that the trial court erred in its method of dividing the parties' assets because it failed to take into account an advance payment made by the plaintiff to the defendant. Although the defendant raises this claim for the first time on appeal, we exercise our discretion to consider the claim on the merits, and we affirm the judgment of the trial court.

         The following undisputed facts and procedural history are relevant to our resolution of this appeal. On January 16, 2008, the plaintiff, Beatrice Forgione, commenced this dissolution action against the defendant, Mennato Forgione. On July 7, 2008, the parties entered into a prejudgment stipulation in which they agreed that the plaintiff would have exclusive possession of the marital home, and, in exchange, the plaintiff would pay the defendant $60, 000 as an ‘‘advance'' against the defendant's equitable distribution. The $60, 000 advance represented approximately one half of the total equity in the marital home at that time. The plaintiff later testified that she obtained the $60, 000 by way of a personal loan from one of her friends and, thereafter, paid the advance to the defendant. This testimony was corroborated by the plaintiff's itemization of a $60, 000 liability, which she specifically identified as a ‘‘[l]oan for [a]dvance to [h]usband re property [distribution], '' on her August 26, 2009 financial affidavit.

         On August 26, 2009, the court rendered judgment dissolving the marriage of the parties. The dissolution judgment incorporated the parties' stipulated agreement that resolved, among other things, the issues of custody, insurance, distribution of marital assets and liabilities, child support, and alimony. The parties stipulated, in relevant part, that the defendant would transfer his interest in the marital residence to the plaintiff in consideration of the $60, 000 advance that the plaintiff previously had paid to the defendant, and that the parties each would retain the remaining assets listed on their respective financial affidavits, including ‘‘deferred compensation'' plans.

         On March 12, 2012, the plaintiff filed a motion to open the dissolution judgment on the ground that the defendant intentionally had failed to disclose commissions he had received just prior to the dissolution judgment. On May 30, 2012, the parties entered a postjudgment stipulation to open the dissolution judgment for the purpose of redetermining ‘‘all issues of a financial nature . . . .'' On the same date, the court approved the stipulation and opened the judgment.

         On November 6, 2013, after a three day trial, the court issued a memorandum of decision in which it entered new financial orders concerning, among other things, child support, insurance, property distribution, liabilities, bank accounts and retirement funds, and counsel fees. As for property distribution, the court, in its new orders, recognized that the plaintiff previously had paid the $60, 000 advance to the defendant and, thus, ordered the defendant to transfer his title to the marital residence to the plaintiff. As for bank accounts and retirement funds, the court ordered, in relevant part, that the ‘‘parties shall equally divide the remaining financial assets of the marriage.'' On November 22, 2013, the defendant filed a motion seeking reargument of the court's new financial orders regarding insurance and sanctions, and clarification as to the operative date that should be utilized when equalizing the parties' financial assets.

         On February 3, 2014, after a hearing, the court issued a memorandum of decision addressing the disputes as to insurance and sanctions, and, further, deferring the selection of the ‘‘operative date of equalization of financial assets'' until after the court received additional briefing from the parties. Accordingly, on February 26, 2014, the plaintiff filed a brief contending that the operative date should be the date of dissolution, August 26, 2009, and proffering a mathematical calculation of the parties' financial assets-bank accounts and retirement funds-on that date. On March 12, 2014, the defendant filed a brief concurring that the operative date should be August 26, 2009; however, he disagreed that the plaintiff's calculation ‘‘should have been made a part of the legal memorandum and, therefore, wishe[d] [it] stricken.'' The defendant provided no substantive objection to the plaintiff's calculation, and provided no calculation of his own.

         On June 3, 2014, the court issued a memorandum of decision dividing the ‘‘remaining financial assets of the marriage.'' Therein, the court determined that the plaintiff's financial assets listed on her August 26, 2009 affidavit totaled $45, 946, that the defendant's financial assets listed on his August 26, 2009 affidavit totaled $135, 500, [2]and, consequently, the court ordered the defendant to pay the plaintiff an equalization payment of $44, 777. The court adopted the method of calculation set forth by the plaintiff in her posttrial brief and only incorporated the financial assets that were itemized in the ‘‘bank accounts'' and ‘‘deferred compensation plans'' categories of the parties' respective affidavits. Thus, the court's calculation did not include the $60, 000 advance payment received ...


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