October 24, 2018
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the court, Emons, J.;
judgment dissolving the marriage and granting certain other
relief; thereafter, the court, Tindill, J., granted
the plaintiff's motion to open the judgment;
subsequently, the matter was tried to the court, Colin,
J.; judgment for the plaintiff, from which the plaintiff
appealed to this court. Reversed; further
A. Roberts II, with whom, on the brief, was Tara C. Dugo, for
the appellant (plaintiff).
Alvord, Bright and Beach, Js.
plaintiff, Riitta LaBorne, appeals from the judgment of the
trial court rendered following a postdissolution hearing. The
plaintiff claims that the court erred in (1) failing to value
the parties' assets as of the date of the dissolution,
(2) basing its alimony orders on the parties' gross
income, rather than net income, and (3) concluding that the
defendant, John C. LaBorne, was permitted to withdraw funds
from his retirement account for the purpose of paying
alimony. We agree and reverse the judgment of the trial
following facts and procedural history are relevant to our
decision. The parties were married in 1990 and have two sons.
During the pendency of the dissolution proceedings, initiated
in 2010, both parties submitted financial affidavits. In his
affidavits, dated in 2011 and 2012, the defendant listed
financial assets not exceeding $2000.
March 22, 2012, the court, Emons, J., dissolved the
parties' marriage. In its judgment of dissolution, the
court ordered that the parties share legal custody of their
minor child. The court ordered the defendant to
‘‘pay to the plaintiff 35 [percent] of his gross
annual income in excess of $150, 000 per year'' and
to provide the plaintiff ‘‘unallocated alimony
and child support in the amount of $5500 per month.''
The court awarded all marital assets to the plaintiff.
September, 2012, the plaintiff filed a postjudgment motion
for contempt in which she alleged that the defendant failed
to make that month's required payment. The defendant
responded with a motion to modify the orders regarding
payments. The plaintiff amended her motion for contempt and
alleged that the defendant had violated several additional
course of discovery on the pending motions, the defendant
produced a copy of his 2013 income tax return, in which he
reported that he withdrew $142, 500 from an individual
retirement account (IRA). After discovering this asset, the
plaintiff filed a motion to open the judgment of dissolution
on the basis of fraud. The plaintiff alleged, in relevant
part, that the defendant never disclosed his IRA on any
financial affidavit prior to the dissolution judgment, that
between 2013 and 2014 the defendant withdrew
‘‘more than $300, 000 in liquid assets''
from his IRA, and that the defendant's alleged failure to
disclose the IRA materially affected the court's
orders. The plaintiff requested a preliminary
hearing and the right to conduct discovery in preparation
the motion to open was pending, the plaintiff filed a motion
requesting that the court order that the defendant pay
Meyers, Harrison & Pia, a forensic accounting firm
(accounting firm), for an analysis of the defendant's
financial transaction history. On January 12, 2015, the
parties entered into a stipulation in which they agreed that
the defendant was not to withdraw money from his IRA other
than to pay alimony or reimbursable expenses. The court, S.
Richards, J., approved the stipulation. Thereafter, the
court, Tindill, J., granted the plaintiff's
motion to open the judgment on the basis of fraud. The
plaintiff filed a motion for clarification, seeking to limit
the scope of retrial to ‘‘discovery of and
distribution of marital assets as of the date of the
dissolution of marriage . . . .'' The court denied
this motion, stating that ‘‘[j]udgment is opened
as to all matters.''
plaintiff then filed a new motion requesting an order that
there be no withdrawals whatsoever from the IRA prior to the
retrial. The plaintiff indicated that at retrial
she would seek to have the IRA restored to its value as of
the date of the dissolution trial and to be awarded the
entire amount of the IRA.
27, 2015, the court held a hearing on the plaintiff's
motions for forensic accounting fees and to prohibit any
further withdrawals from the defendant's IRA until the
issuance of court orders after retrial. After hearing
argument from counsel, the court granted the plaintiff's
motion for forensic accounting fees. The court then turned to
the plaintiff's motion regarding the IRA. The defendant
testified as to the current value of his IRA, withdrawals he
made from his IRA since entering into the January 12, 2015
stipulation, and the values of his other assets and debts.
court determined that since the parties entered into the
January 12, 2015 stipulation the defendant spent $37, 875
from his IRA. The court determined that $20, 625 was
withdrawn to pay alimony and $4403 was spent on reimbursable
expenses. The court further determined that the defendant
could not account for the approximately $3450 per month ($13,
800 over four months) that he had spent on personal living
expenses. The court orally granted the plaintiff's motion
to prohibit any further withdrawals from the defendant's
IRA until the court ruled on the matter at retrial.
to the retrial of the dissolution financial orders, the
plaintiff requested that the accounting firm determine the
amount the defendant withdrew from his IRA between June 6,
2013, and December 31, 2015, and to determine what the value
of the IRA would have been, had the funds not ...