Note: this is the complete text of Judge Kevin Tierney's monumental decision.  It is divided into five sections.  This is Section Two. 

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CONNECTICUT IS NOT A COMMUNITY PROPERTY STATE

The seven pure community property states are California, Texas, Nevada, Washington, Idaho, New Mexico and Arizona. A form of community property based on the Napoleonic code is in effect in Louisiana. Wisconsin became a quasi-community property state in 1986. All have become community property by statute. Connecticut has been declared an "all-property" state by case law interpretation of our equitable division statute. Krafick v. Krafick, supra, 234 Conn. 799. Connecticut has not enacted a community property statute. The passage of the 1973 acts was a major change in the Connecticut divorce scheme. "The thrust of this legislation is to reconsider all aspects of the laws pertaining to divorce and legal separation." Exhibit 115. A pure no fault, one ground statute, first proposed, was amended by a series of compromises during the 1973 legislative session. The current statutory scheme was approved in 1973 and continues essentially unchanged to this day. The court has examined the testimony before the Judiciary Committee as well as the legislative debate. No member of the General Assembly in either committee testimony or on the floor mentioned a community property concept. The Chairman of the Family Law Section of the Connecticut Bar Association testified twice and did not mention community property even though he was asked about no-fault experience in two community property states: California and Texas.

Only two representatives of the National Organization for Women testified and neither requested the adoption of community property. The only person to mention community property was plaintiff's trial counsel. "Another suggestion which I know will never be passed, but pass this 'No-Fault' bill but add community property to our law." Exhibit 115, Page 585-86. "As I said earlier I would be in favor of the bill if somehow we could secure the financial well being of the wife and the child. And this bill does not do it." Exhibit 115, Page 587.

The 1973 bill's main purpose was to eliminate the adversary nature of the current divorce laws. Exhibit 115, Page 202. In doing so the drafters were required "to reconsider all aspects of the laws pertaining to divorce and legal separation in Connecticut. It was the feeling of the section that drafted this legislation that the current Connecticut Laws work substantial hardships in many instances on the parties to divorce and separation in proceedings and to their children and to the proper administration of justice and the bill has been drafted with those considerations in mind." Exhibit 115, Page 207. As the act was first drafted, the issue of fault was not to be considered at all. As a compromise an additional ground for dissolution was added to the statute, i.e., "the marriage has broken down irretrievably." General Statutes § 46b-40(c)(1). The other nine grounds were retained. Fault was permitted to be considered in the determination of alimony and division of property under General Statutes §§ 46b-81(c) and 46b-82 ("Causes for the annulment,dissolution of the marriage or legal separation"); initial orders of child custody under General Statutes § 46b-56(b) ("The court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child. . . "); but fault is not a factor in determining child support under General Statutes § 46b-84(c). The major focus of the entire legislative consideration centered on fault and rendering the statutes gender neutral. "The financial aspect of the law remains essentially unchanged." Exhibit 115, Page 209. "The standards, however, of making alimony awards are the same as those existing under the current law." Exhibit 115, Page 1465. The legislature was well aware of the effect of the pending ERA. Exhibit 115, Page 1483.

Committee testimony from an attorney speaking for the Connecticut Women's Political Caucus was received referring to the view of the National Women Political Caucus and no mention of community property was contained in those remarks. The thrust of the attorney's expressed concerns was noncompliance with orders of child support and alimony. Exhibit 115, Page 233. In addition, the attorney did ask that the bill take into consideration the nonfinancial contributions of a woman. This factor, of course, was not specifically contained in the amended statute but was later judicially determined to be within the "contributing" criteria. O'Neill v. O'Neill, supra, 13 Conn. App. 300. This witness concluded her testimony, "I feel that a bill like this is necessary and I think I can adequately speak for most of the women that I know in the convention in saying that most of the portions in this bill would be very very acceptable to them and I urge that you report the bill out." Exhibit 115, Page 215.

The legislature considered community property amendments to the marital division statutes in 1978. H.R. 78-104. These amendments, as proposed, never made it out of committee, and thus were never voted on by either the House of Representatives or the Senate.

Two other legislative efforts regarding community property have been made in the last decade. An advisory commission to the legislature was appointed in 1985 to study the Uniform Marital Property Act. Spec. Acts 1985, No. 85-106, amended by Spec. Acts 1986, No. 86-60. A report favorable to the adoption of a form of community property in the division of marital assets was proposed. No legislative enactment followed. Another study was authorized by the legislature, on the issue of community property and the ramifications and advisability of its adoption in Connecticut. Substitute Bill 1119 (Jan., 1995). The study was never submitted to the legislature. No legislative enactment has followed the 1995 study.

Legislative silence is a valid tool in interpreting statutes. "The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them." Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 386, 698 A.2d 859 (1997).

Since the passage of General Statutes § 46b-81(c), the legislature has amended its original equitable property distribution scheme by three public acts: P.A. 75-331 (authorized court to pass title to real property to either party or a third party or to order sale of property and added provisions relating to transfer or sale of property); P.A. 78-230 § 36 (divided sections into subsections and changed the wording slightly); and P.A. 78-230 § 54 (transferred to § 46b-81 the provision of § 46-51 and revised other sections to reflect this transfer).

Since the passage of General Statutes § 46b-82 the legislature has amended its original equitable income distribution scheme by three public acts: P.A. 78-230 § 37 (restated provisions of original act); P.A. 78-320 § 54 (transferred to § 46b-82 the provisions of § 46-52 and revised other sections to reflect this transfer); and P.A. 83-527 § 1 (added provision that court may order either party to contract with a third party for periodic payments or payments contingent on a life to the other party). No legislative amendment to the 1973 equitable distribution scheme remotely attempts to convert Connecticut into a community property state.

Since 1973 hundreds of trial court and appellate court decisions have been rendered, and none remotely attempt to convert Connecticut into a community property state. "The legislature is presumed to be aware of the interpretation of a statute and . . . its subsequent nonaction may be understood as a validation of that interpretation. . . . This presumption is strengthened when in question." Martin v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997);Jolly Inc. v. Zoning Board of Appeals, 237 Conn. 184, 200-01, 676 A.2d 831 the legislature has affirmatively reenacted the statute after the interpretation in question." Martin v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997);Jolly Inc. v. Zoning Board of Appeals, 237 Conn. 184, 200-01, 676 A.2d 831 (1996). ]

Connecticut is not a community property state under the plain meaning of its statutes. The trial court has no power to create a community property scheme. The legislature acted in 1973 and created an equitable distribution scheme. "We will not infer that the legislature intended to enact a significant change in existing law without an unequivocally expressed manifestation of legislative intent." Jupiter Realty Co. v. Board of Tax Review, 242 Conn. 363, 370, 698 A.2d 312 (1997).

THERE IS NO STATUTORY PRESUMPTION OF EQUAL DIVISION REGARDLESS OF THE AMOUNT OF RESOURCES

The plaintiff claims that all property division in Connecticut dissolutions must start with a presumption of a fifty-fifty division regardless of the amount of resources and the length of the marriage. After that presumption is considered and not found to be appropriate, then the division of property standards under General Statutes § 46b-81 will be applied. In that event a division different than fifty-fifty will be determined by the exercise of the trial court's discretion applying the statutory criteria. The plaintiff makes four arguments to support this position: (1) the 1974 Equal Rights Amendment to the Connecticut constitution, (2) human capital theory of nonmonetary contributions under O'Neill v. O'Neill, 13 Conn. App. 300, 311, 536 A.2d 978, (3) marriage is a partnership, and subject to uniform partnership rules, and (4) equitable means equal under the Connecticut equitable distribution scheme.

The defendant, on the other hand, claims that the property division statute, General Statutes § 46b-81(c), creates an equitable division scheme. It was never intended that there be a presumption of fifty-fifty division and the statute does not contain such a presumption. The plain reading of the statute prevents a fifty-fifty presumption from existing in Connecticut's equitable distribution scheme.

There are three general categories of laws for marital property division. These categories are community property, "dual property" (statutes define what is marital and separate property), and "all-property." There is also a fourth form, common law title, which Connecticut followed until 1877. Mississippi still has some vestiges of common law title property ownership and distribution at dissolution.

The following are the all-property states: Alaska, Connecticut, Hawaii, Indiana, Iowa, Kansas, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Oregon, South Dakota, Vermont and Wyoming.

Community property states have been created only by statute. Community property states, for the most part, are located in the western United States and have little traditional English common law, i.e., California, Texas, Idaho, New Mexico, Nevada, Arizona, Washington, Wisconsin and a form of community property based upon the Napoleonic code in Louisiana.

This court found the following passage helpful, in understanding these different property concepts:

 

 

Existing American law offers two models for dividing marital property on divorce. The dominant model is 'equitable distribution,' in which the governing statute provides a list of 'factors' that the trial judge is authorized or directed to consider in deciding the fairest allocation of the property. These statutes typically provide the judge no guidance in weighing the relative importance of the various factors. Although these lists often include eight or ten factors, most of the factors are specific examples of two basic but conflicting principles: property should be allocated in proportion to the spousal contributions to its acquisition, and property should be allocated according to relative spousal need.

These principles conflict because the relative contribution of the spouses to the acquisition of marital property is usually inversely related to their relative financial need at divorce. Factors other than contribution or need, when included, are of ambiguous significance. The judge may resolve this difficulty by dividing the property equally, which some state provide as the presumptive result. Other states, however, forbid an equal division presumption, further confounding a judge who attempts to apply the conflicting or ambiguous factors. The conscientious judge is thus expected to begin with no idea of how to divide the property, which is where he or she may perhaps also end.

The competing model, followed formally in a few states including California, imposes a rule of equal division that is essentially invariable except where the financial fraud of one spouse would otherwise deprive the other of a true half share. It thus leaves little to judicial discretion. Some courts in equitable discretion states follow this rule informally by applying a presumption of equal division that is rarely rebutted, although inconsistency may result because other courts in the same state adjust the allocation more freely.

American Law Institute, Principles of the Law of Family

Dissolution: Analysis and Recommendations, pp. 223-24 (Tentative Draft No. 2, 1996).

The above "rule of equal division" has not been adopted in Connecticut. It is the last sentence of the above stated "Principles" that the plaintiff wishes this court to adopt.

There is no Connecticut case, either appellate or trial court, that supports the plaintiff's claim of a fifty-fifty presumption. In determining the portion of the defendant's estate which shall be awarded to the plaintiff as alimony, "there is no inflexible standard." Olmstead v. Olmstead, 85 Conn. 478, 480, 83 A. 628 (1912).

In order to determine whether General Statutes §§ 46b-81(c) and 46b-82 contain a presumption of fifty-fifty division, rules of legislative interpretation must be applied.

The general rule of statutory interpretation is well settled.

When we set out to interpret the meaning of a statute, 'our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.'. . . Conway v. Wilton, 238 Conn. 653, 663, 680 A.2d 242 (1996). Furthermore, 'when a statute is in derogation of common law or creates a [right] where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction. . . . In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope.'. . . Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289-90, 627 A.2d 1288 (1993).

Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 379-80, 698 A.2d 859

(1997).

1. Words of the statute itself:

"It is well settled that a statute must be applied as its words direct." Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397, 400, 689 A.2d 1132 (1997). "If the statutory language is clear and unambiguous, there is no room for construction." New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975).

'In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. . . . When the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent.'

Rizzo Pool Co. v. DelGrosso, 240 Conn. 58, 73-74, 689 A.2d 1097 (1997); Dos

Santos v. F.D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995).

General Statutes § 46b-81(c) contains 18 separately listed criteria. No language of presumption is contained in the statute. The claimed equal division presumption is not part of the statutory criteria. The plain language of the statute supports the defendant's claim. Based on the plain language of General Statutes § 46b-81(c), there is no presumption in Connecticut that marital property should be divided equally prior to applying the statutory criteria. So too, the periodic alimony statute, General Statutes § 46b-82, contains language virtually identical to the property division statute. Based on the plain language of General Statutes § 46b-82, there is no presumption in Connecticut that income should be divided equally prior to applying the statutory criteria.

This court has found one Connecticut dissolution case that discusses the establishment of a presumption and it is in the area of custody by an abusive spouse. Knock v. Knock, 224 Conn. 776, 785, 621 A.2d 267 (1993). The only reference to presumption was contained in a study mentioned in the opinion. The Knock case involved an appeal to the Supreme Court by counsel for the minor child and the plaintiff husband in a contested dissolution and custody action. The joint claims by the appellants were that the trial court improperly admitted into evidence the testimony of a controversial witness, a psychologist who held a doctorate in sociology, masters in social work and was a recognized expert on the subject of battered woman's syndrome. The Supreme Court held that the testimony on battered woman's syndrome was relevant to the determination of custody in order to determine if the defendant wife fit the model. The custody award to the wife was upheld on the grounds that the trial court applied the relevant statutory criteria under General Statutes § 46b-56(b). That statute contains no presumption. The unanimous opinion, citing a number of treatises and studies regarding the detrimental effect on a minor child being placed in the custody of a parent who batters the other parent concluded, "In light of the above studies, it appears that the presence of battering in the household has, at a minimum, some effect on the parenting skills of both spouses and the child's response to the parents even after their separation." Id., 786.

One of the studies considered was 1990 Concurrent Resolution 172 passed by the United States Congress: "for purposes of determining child custody, credible evidence of physical abuse of one's spouse should create a statutory presumption that it is detrimental to the child to be placed in the custody of the abusive spouse." (Internal quotation marks omitted.) Knock v. Knock, supra, 224 Conn. 785. Although this report was one of the studies that influenced the Knock court, such a presumption was not judicially adopted. Since the 1993 Knock decision, the legislature has been silent on including such a presumption in the custody statute, General Statutes § 46b-56(b).

 

 

The intention of the legislature is found not in what it meant to say, but in the meaning of what it did say. Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975). Lukas v. New Haven, 184 Conn. 205, 212-13, 439 A.2d 949 (1981). If the language of the statute is unambiguous, the intent must be ascertained from that language. Royce v. Heneage, 170 Conn. 387, 391, 365 A.2d 1109 (1976). If there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties contend for different meanings. Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981).

(Internal quotation marks omitted.) Lutrell v. Lutrell, 184 Conn. 307, 310-11, 439 A.2d 981 (1981).

 

 

Where the statutory language is clearly expressed, as here, courts must apply the legislative enactment according to the plain terms and cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result. . . . Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986). 'It is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.'. . . Glastonbury Co. v. Gillies, 209 Conn. 175, 180-81, 550 A.2d 8 (1988).

Bona v. Freedom of Information Commission, 44 Conn. App. 622, 636, 691 A.2d 1

n. 14 (1997).

There is no need to apply further rules of legislative interpretation to this issue. "When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute's legislative history and the purpose that the statute was intended to serve."Rizzo Pool Co. v. DelGrosso, supra, 240 Conn. 74. Although this court has found that these two statutes are clear and unambiguous on their face and no further legislative interpretation is needed, because of the impact of the plaintiff's arguments, the court will examine the issue further under the rules set forth in Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 379-80.

2. A "conjoint" reading of the statutes

It is not necessary to further examine this constitutional issue under a "conjoint" reading test when the statute has been declared clear and unambiguous. There is no wording in the equitable distribution statutes read together with other statutes that requires a situational determination of ambiguity such as found by the Supreme Court in Conway v. Wilton, 238 Conn. 653, 665, 680 A.2d 242 (1996) and Luce v. West Haven, 238 Conn. 687, 690, 680 A.2d 259 (1996). The Connecticut Recreational Land Use Act was found clear and unambiguous in Manning v. Barenz, 221 Conn. 256, 260, 603 A.2d 399 (1992) and yet the Supreme Court used a "conjoint" analysis to determine, on closer scrutiny, that "owner" did apply to a municipality. See Sheff v. O'Neill, supra, 238 Conn. 1, 26, 678 A.2d 1267 and S.& S. Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 317, 617 A.2d 1388 (1992) for the same type of "conjoint" reading.

3. Legislative history and circumstances surrounding its enactment

 

 

"The most persuasive evidence of the proper construction of the statute is found in the history of the statute's wording." Connecticut National Bank v. Giacomi, 242 Conn. 17, 59, 699 A.2d 101 (1997). Connecticut's equitable distribution statute was adopted in 1973. P.A. 73-373. The statutory scheme, lack of presumptions and delineation of the criteria to be applied has remained virtually the same since the 1973 passage. Both the current equitable distribution scheme and the pre-1973 statutes gave the trial courts broad discretion in determining financial orders. Bielan v. Bielan, 135 Conn. 163, 168, 62 A.2d 664 (1948); Wood v. Wood, 165 Conn. 777, 784 n. 2, 345 A.2d 5; Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031. The former property division statute, General Statutes § 46-51 (also formerly General Statutes § 46-21 and General Statutes 5182) only permitted the court to order property to the wife. The statute is now spouse neutral. None of the statutory changes in the property division statutes since 1973 addressed or created a fifty-fifty presumption. P.A. 73-373, § 20; P.A. 73-331; P.A. 78-230, § 36; P.A. 78-230, § 54. The former periodic alimony statute, General Statutes § 46-52 (also formerly General Statutes § 46-21 and General Statutes § 5182), only permitted the court to order alimony to the wife. The statute is now spouse neutral. None of the statutory changes in the alimony statutes since 1973 addressed or created a fifty-fifty presumption. P.A. 73-373, § 21; P.A. 78-230, § 37; P.A. 78-230, § 54; P.A. 83-527, § 1.

"The superior court may assign to any woman divorced by such court a part of the estate of her husband and, in addition thereto or in lieu thereof, may order alimony to be paid from the husband's income. . . . In fixing the amount which shall be allowed, the court shall take into consideration the amount of the husband's income, whether the same is derived from property already acquired or from his personal daily exertions or from both. . . ." (Internal quotation marks omitted.) Bielan v. Bielan, supra, 135 Conn. 166-67, citing General Statutes § 5182.

In this state neither a husband nor a wife acquires, by virtue of marriage, any interest in the real or personal property of the other during the other's lifetime. General Statutes § 46-9; Cherniack v. Home National Bank & Trust Co., 151 Conn. 367, 370, 198 A.2d 58; Stewart v. Stewart, 5 Conn. 316, 317, 321.

Tobey v. Tobey, 165 Conn. 742, 748, 345 A.2d 21 (1974).

There is nothing in the history of the wording of the two statutes (both statutes combined in one statute prior to 1973) that supports the plaintiff's position.

4. The legislative policy it was designed to implement

The court can also look at the legislative policy the statute was designed to implement. Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 379. The legislature in the very next year, after creating the current equitable distribution scheme in P.A. 73-373, approved the Equal Rights Amendment to the Connecticut constitution. Article V of the Connecticut constitution amended § 20 of article first of the Connecticut constitution effective November 27, 1974 by adding the word "sex." "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex." "Physical or mental disability" was added to the Connecticut constitution as an amendment in article XXI adopted November 28, 1984.

The ERA was labeled an "evolutionary" change in married women's rights in 1988 by the Connecticut Supreme Court. "Article fifth of the Connecticut constitution, amending § 20 of article first of the Connecticut constitution, however, provides the constitutional underpinnings for contemporary departure from the primary duty of one spouse to the joint duty of each spouse to support his or her family." Yale University School of Medicine v. Collier, 206 Conn. 31, 35, 536 A.2d 588 (1988). "The people of this state and their legislators have unambiguously indicated an intent to abolish sex discrimination." Evening Sentinel v. National Organization for Women, 168 Conn. 26, 34, 357 A.2d 498 (1975).

The legislative history of the equitable distribution statute in 1973 states its policy. "'It does in fact for the first time in Connecticut's history treat men and women equally. It does provide that the court look at them not as men and women but as parties and look at their various obligations in their various capacities with respect to earning and all the other aspects that should be considered.'" O'Neill v. O'Neill, supra, 13 Conn. App. at 310. "'I was one of the strong supporters of the equal rights amendment for women and I feel that this new divorce law will help the rights of women in this state. . . . I support this bill . . . because I think it will make it more equitable for the women of the state.'" Id. See also Exhibit 115 (1973 legislature history of General Statutes §§ 46b-81(c) and 46b-82). No trial or appellate court in Connecticut has interpreted the equitable division scheme post ERA as establishing a fifty-fifty presumption despite the plaintiff's claims that the 1974 ERA is itself an interpretation of the equitable distribution statutes made by the legislature, not the court. "'The legislature is presumed to aware of the interpretation of a statute and . . . its subsequent nonaction may be understood as a validation of that interpretation. . . . This presumption is strengthened when the legislature has affirmatively reenacted the statute after the interpretation in question.'" Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 200-01, 676 A.2d 831 (1996).

Since approving the ERA, the legislature has had an opportunity to revisit both equitable distribution statutes. It took no action to amend either statute to reflect the plaintiff's claim of a presumption of equal division. "The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them." Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988). Since 1974 the legislature failed to amend the equitable distribution scheme to include a fifty-fifty presumption. The legislature knew how to amend the statutes to include such a presumption. It failed to do so. Its failure to amend the statute is evidence of the legislature's intent not to create a fifty-fifty presumption either by the ERA or the 1973 equitable distribution scheme. Martin v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997); Conway v. Wilton, supra, 238 Conn. 678.

The legislative policies advanced by the passage of the 1973 equitable distribution statutes were: (1) to create a spouse neutral environment, and (2) to establish standards that can be applied to men and women alike. There is no legislative history, brought to the attention of this court, that demonstrates that the results of the application of the statutory criteria was to be an equal division of income or property or a presumption of equal distribution of assets and/or income.

5. The statute's relationship to existing legislation

The court can examine the statute at issue and compare it to existing legislation and common law principles governing the same general subject matter. Conway v. Wilton, supra, 238 Conn. 663. The plaintiff is seeking a new interpretation of a property and income division statute, not found clearly in any prior statute nor in any reported case in the past 300 years. "While an action for divorce or dissolution of marriage is a creature of statute, it is essentially equitable in its nature . . . ." (Citations omitted; internal quotation marks omitted.) Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612; Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 146; Steinmann v. Steinmann, 121 Conn. 498, 503, 186 A. 501 (1936). Certain of the court's powers were derived from English common law. Krasnow v. Krasnow, 140 Conn. 254, 261, 99 A.2d 104 (1953); Stoner v. Stoner, supra, 163 Conn. at 356.

'When a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction.' . . . 'In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope.'

(Citation omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 627 A.2d 1288,

289-90 (1993).

"We will not infer that the legislature intended to enact a significant change in existing law without an unequivocally expressed manifestation of legislative intent." (Internal quotation marks omitted.) Jupiter Realty Co. v. Board of Tax Review, 242 Conn. 363, 370, 698 A.2d 312 (1997).

A cause of action that is solely statutory in its derivation cannot be judicially expanded to encompass grievances for which the legislature has not seen fit to provide a remedy.

Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 251-52, 506 A.2d 1035 (1986).

Another line of cases strictly construe procedural marital statutes. "The power and jurisdiction of this court over marriage contracts is purely statutory and must be strictly construed." Barbaro v. Barbaro, 1 Conn. Supp. 76, 77 (1935). The marital statutory scheme should be followed in procedural matters. Livsey v. Livsey, 11 Conn. App. 43, 46, 525 A.2d 546 (1987).

Nothing in the plain reading of the statutes, its legislative history, the circumstances surrounding its enactment, its relationship to existing legislation and the common law principles governing the same general subject matter supports the plaintiff's claim. Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 379.

6. Identification of statute's principal audience

Some cases have held that "a useful guide to the meaning of statutory language is an identification of the principal audience of that language - that is, by answering the question: To whom is the statute primarily addressed?" State v. Brown, 242 Conn. 389, 406, 699 A.2d 943 (1997); State v. Piorkowski, 236 Conn. 388, 408-09, 672 A.2d921 (1996). The audience of the equitable distribution scheme would be those that use it on a day to day basis. Jupiter Realty Co. v. Board of Tax Review, supra, 242 Conn. at 371. Daily users are judges, lawyers and marital litigants. State v. Brown, supra, 407; State v. Piorkowski, supra, 409. What has that "audience" done in response to the 1973 equitable distribution statutory scheme? Litigate is the answer. Yet, the plaintiff cannot point to one case in which this fifty-fifty presumption issue was ever litigated, let alone decided.

7. Statutes must create a harmonious whole and not create a bizarre result

There are other statutory rules that can assist in legislative interpretation. "The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them . . . we [also] presume that the legislature intended them to be read together to create a harmonious body of law. . . ." (Citations omitted.) Stein v. Hillebrand, 240 Conn. 35, 42-43, 688 A.2d 1317 (1997); Sandor v. New Hampshire Ins. Co., 241 Conn. 792, 801, 699 A.2d 96 (1997).

"Each part or section [of a statute]should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one [part] to be construed." Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 761, 699 A.2d 81 (1997). "It is a basis tenet of statutory construction that the legislature did not intend to enact meaningless provisions. . . . In construing statutes, we presume that there is a purpose behind every sentence, clause or phrase used in an act and that no part of the statute is superfluous. . . ." (Citations omitted; internal quotation marks omitted.) Castagno v. Wholean, 239 Conn. 336, 346, 684 A.2d 1181 (1996). Statutes must also avoid construction that lead to absurd, unworkable or bizarre results. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991); Sillman v. Sillman, 168 Conn. 144, 149, 358 A.2d 150 (1975).

Imposing an initial presumption of equality on a statutory distribution scheme has been rejected by some courts. The Indiana Supreme Court reversed its Court of Appeals and declared that a distribution statute, silent in that regard, does not "require as a matter of law that the trial judge work from the standpoint of a rebuttable presumption of a 'fifty-fifty' split. . . ." Luedke v. Luedke, 487 N.E.2d 133, 134 (Ind. 1985). The Indiana Supreme Court explained its rationale that a fifty-fifty presumptive split would "put an artificial structure on the fact-finding process which may very well impinge the trial judge's ability to openly weigh all the facts and circumstances, giving equal regard to all of them. . . . [A] complete and thorough examination needs to be made of the quantity and quality of the contribution of both the wage earner and homemaker in order to come to a final determination. The actions of people in the course of daily life are not easily susceptible to mathematical calculation." Luedke v. Luedke, supra, 134.

A number of decisions have refused to invoke a fifty-fifty division of property in family cases by judicial decree mindful that it is a decision best left to the legislature. Jennings v. Conn, 194 Ore. 686, 690, 243 P.2d 1080, 1082 (1952) ("would, in effect, be writing a community property law by judicial fiat"); Fischer v. Wirth, 38 A.D.2d 611, 326 N.Y.S.2d 308, 310 (App. Div. 1971) ("What appellant really seeks is a community property division under the guise of equitable relief.").

Two statutes, one from California and one from Wisconsin, containing some semblance of a fifty-fifty presumption will now be discussed. California contains such a provision in its statute dividing community property. "The court shall . . . divide the community estate of the parties equally." California Family Code, § 2550. There are two circumstances that can affect this fifty-fifty division: (1) "unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability." California Family Code, § 2556; and (2) "the court for good cause shown may value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate of the parties in an equitable manner." California Family Code, § 2552(b).

These statutes are of no significance in Connecticut for four reasons: (1) there is no such statute or case law presumption in Connecticut, (2) Connecticut, unlike California, is not a community property state, (3) Connecticut is an all property state and has no definition of marital property or separate property, and (4) the California statutes set forth no criteria upon which the court can exercise its discretion to find "good cause" to vary the fifty-fifty division whereas Connecticut's property division statute contains 18 criteria.

Wisconsin has a fifty-fifty property division presumption by statute. "The court shall presume that all property not described in sub (2)(a) is to be divided equally between the parties but may alter this distribution without regard to marital misconduct after considering all of the following:" Wis. Stat. Ann. § 767.255(3). The statute then lists 13 criteria that can be used by the trial court to exercise its discretion. Subdivision (2)(a) of the Wisconsin statute, referred to above, established a definition of separate property which would not be subject to the court's power of division and distribution.

This Wisconsin statute is of no significance to Connecticut for three reasons: (1) there is no such statute or case law presumption in Connecticut, (2) Wisconsin is a quasi-community property state, and (3) Connecticut is an all property state and has no definition of marital property or separate property.

Wisconsin also has the only case that refers to a nonstatutory fifty-fifty presumption. Alimony (called maintenance payments in Wisconsin) is permitted by statute. This statute contains no fifty-fifty presumption. Wis. Stat. Ann. § 767.26. This statute does list ten factors the court may take into account in exercising its discretion in making the periodic award. None of the factors can be read to include a fifty-fifty presumption. In 1982, case law changed that. A trial court may begin maintenance evaluation with the presumption that the dependent partner may be entitled to 50% of total earnings of both parties. Bahr v. Bahr, 107 Wis. 2d 72, 318 N.W.2d 391 (1982); In re Marriage of LaRocque, 139 Wis. 2d 23, 32-33, 406 N.W.2d 736, 740 (1987). This theory has been refined in a recent case in which the $73,000 income of the husband and the $19,000 income of the wife was combined and divided between them $49,000/$43,000. The court held that the 49/43 split complied with the fifty-fifty presumption of LaRocque. Wikel v. Wikel, 168 Wis. 2d 278, 483 N.W.2d 292, 293 (Ct. App. 1992).

This line of cases is of no significance in Connecticut for these reasons: (1) there is no such statute or case law in Connecticut, (2) Wisconsin is a quasi-community property state, and (3) the fifty-fifty division of maintenance engrafted the statutory presumption of fifty-fifty in property division, yet in its latest pretrial application the division of $49,000/$43,000 resulted in a 53%/47% split. The 1992 exception swallowed the 1982 rule that itself was an exception to a statute that contained no such presumption. Olson v. Olson, 186 Wis. 2d 287, 520 N.W.2d 284 (Ct. App. 1994). "There is no provision in the governing statutes requiring that awards of alimony be distributed equally between the parties." Carter v. Carter, 8 Conn. App. 356, 359, 512 A.2d 979 (1986); Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982).

There are a number of states that have a variety of presumptions in their marital distribution statutes:

1. Oregon Revised Statutes § 107.105(1)(f) (1995):

"There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage, whether the property is jointly or separately held."

The division is not presumed to be equal and is subject to equity, "as may be just and proper in all the circumstances."

2. West Virginia Code § 48-2-32(c) (1996):

"In the absence of a valid agreement, the court shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to any attribution of fault. . . ."

Any alteration is to be based on consideration of certain statutorily enumerated factors. It should be noted that the

West Virginia Code contains a statutory definition of marital property.

3. Arkansas Code Annotated § 9-12-315(a)(A)(1)(1993):

A fifty-fifty presumption exists subject to trial court discretionary variation upon the application of certain factors. It should be noted that the Arkansas Code contains a statutory definition of marital property.

4. North Carolina General Statutes § 50-20(c)(1995):

Marital property as defined by statute is presumed to be divided equally.

5. Nevada Revised Statutes Annotated § 125.150 (1989):

In this community property state, there is a presumption of fifty-fifty division of that which is determined to be community property.

6. Indiana Code § 31-1-11.5-11(c) (1988):

 

 

"The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence including evidence concerning the following factors. . . ."

The court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors. Ten factors are listed in the statute.

7. Minnesota Statutes Annotated § 518.58 Subdivision 1 (West

1997):

"Upon a dissolution of a marriage . . . the court shall make a just and equitable division of the marital property. . . . It shall be conclusively presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife."

8. Ohio Revised Code Annotated § 3105.171(C)(1) (Anderson 1992):

"The division of marital property shall be equal. If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable. In making a division of marital property, the court shall consider all relevant factors, including those set forth in Division (F) of the section."

Based on the above: (1) the Oregon statute contains no presumption of division, just ownership; (2) the Minnesota statute contains no presumption of division, just marital efforts; (3) Indiana is an "all-property" state and yet inserts into the statute a concept of "marital property," thus differentiating it from Connecticut which is a pure "all-property" state; (4) the other presumptions appear to be based on a statutory scheme that contains a definition of marital property, more restrictive than Connecticut's "all property scheme"; or (5) in the case of Nevada, it is based on community property standards. None of the above statutes are persuasive.

Two cases, one from Pennsylvania and one from Florida, do not support the plaintiff's position. DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975) has been cited in the ERA footnote 2 of O'Neill v. O'Neill. DiFlorido is an unusual case. It is a replevin action. The parties had been divorced. Under 68 P.S. § 501 there is a presumption of fifty-fifty ownership of joint property unless the decree states otherwise. This conflicted with Pennsylvania common law that presumed ownership of personal property in the husband as trustee of the wife's half share. The common law was set aside by DiFlorido. No equal protection or ERA claim was made. This case on its face does not stand for the proposition of a presumption of equal division in a marriage. Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1977) did raise the 1971 Pennsylvania ERA to successfully claim that there can be no rebuttable presumption of a constructive trust for the wife's property by the husband. The common law conflicts with the current statute passed in 1949 and the common law constructive trust theory was held violative of the Pennsylvania ERA.

"The concept of 'equitable distribution' does not require an equal division of the assets acquired during the marriage between the parties although that is a good starting point in most cases." Mahaffey v. Mahaffey, 401 So. 2d 1372, 1374 (Fla. Dist. Ct. App. 1981). Mahaffey was followed by Ente v. Ente, 442 So. 2d 232 (Fla. Dist. Ct. App. 1983) and Bobb v. Bobb, 552 So. 2d 334 (Fla. Dist. Ct. App. 1989). In Mahaffey, although equal division was a good starting point, an award to a wife with two minor children of a $200,000 lump sum by a husband with $1,441,782 worth of assets subject to capital gains tax was upheld with the remand to determine how and when the $200,000 would be paid. It is also noted that Mahaffey predated the creation by Florida in 1989 of a revised equitable distribution scheme, one that did not establish a fifty-fifty presumption. Fla. Stat. § 61.075 (1989). Mahaffey shows that the Florida statutory presumption is not applied consistently.

Applying all these principles of statutory construction does not obtain the presumption the plaintiff desires. It is noted the plaintiff did not fully brief this aspect of statutory interpretation rules. The court does not have to consider these arguments. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 249-50 n. 3, 524 A.2d 610 (1987).

The bottom line in Connecticut is that in the absence of specific statutory language, there is no presumption of an equal division in a marital dispute. A constitutional amendment cannot provide such a statutory enactment. Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 319, 627 A.2d 909 (1993). That determination is for the legislature to make, not the courts. Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 514, 673 A.2d 484 (1996). "This court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will." Gonsalves v. West Haven, 232 Conn. 17, 26, 653 A.2d 156 (1995). "Where statutory language is clearly expressed, as here, courts must apply the legislative enactment according to the plain terms and 'cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.'" Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985). "It is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms." Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988). "A cause of action that is solely statutory in its derivation cannot be judicially expanded to encompass grievances for which the legislature has not seen fit to provide a remedy." Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 251-52, 506 A.2d 1035 (1986). In this country, the task of regulating divorce was taken over not by the courts, but the legislatures. The regulation of marriage and divorce has been fully recognized as a matter within the exclusive province of the legislatures of the states. Taylor v. Taylor, 436 N.E.2d 56 (Ind. 1982); 34 A.L.R. 4th 54, 57 (1984). Other states have included, in effect, such a presumption but not Connecticut. California, Louisiana, New Mexico, Wisconsin, Nevada, North Carolina and Arkansas have such a presumption. "Expressio unius est exclusio alterius . . .'the expression of one thing is the exclusion of another.'" Gay & Lesbian Students Assn. v. Board of Trustees, supra, 476.

The application of this suggested presumption by court decree would deprive the trial court of a substantial portion of its power of discretion. "Discretion . . . imparts something more than leeway in decision-making. It denotes the absence of a hard and fast rule or a mandatory procedure regardless of varying circumstances." State v. Corchado, 200 Conn. 453, 464, 512 A.2d 183 (1986). "Use of an arbitrary rule under circumstances that require the exercise of the court's discretion is an abuse of discretion." Askinazi v. Askinazi, 34 Conn. App. 328, 340, 641 A.2d 413 (1994).

The word, "equitable," and the word, "equal," are not the same. Many lay people believe that because both words start with the same prefix, "equ," that equitable means equal. This is not the case. There is an ancient maxim "aequalis est aequitas equality is equity." The maxim does not state the reverse: equity means equal. "An equal division of property is presumptively valid." Brooks v. Brooks, 733 P.2d 1044, 1058 (Alaska Ct. App. 1987). "In extant Oklahoma jurisprudence, the words 'just' and 'reasonable' in 12 O.S. Supp. 1985 § 1278 . . . are equivalent to 'equitable' though not synonymous with 'equal.' . . . Our case law holds that equitable division does not necessarily mean equal division." (Citations omitted.) Teel v. Teel, 766 P.2d 994, 997 n. 6 (Okla. 1988).

"Equitable distribution jurisdictions generally provide that property must be divided in a manner that is 'just,' 'right' or 'equitable,' not necessarily 'equal.'" A. Rutkin, Family Law and Practice § 37.01(1) p. 37-12. Not all "equ" prefix words are the same.Otherwise, equine creatures would all be equal, from an Icelandic trekking pony to a sleek Triple Crown winner.

THE 1974 EQUAL RIGHTS AMENDMENT TO THE CONNECTICUT CONSTITUTION HAS NOT CHANGED THE EQUITABLE DIVISION STANDARDS TO REQUIRE A FIFTY-FIFTY DIVISION

The plaintiff argues that the Connecticut ERA has changed the equitable division standards to require a fifty-fifty division. Additionally, the plaintiff argues that the plain reading of the statute and other tools of legislative interpretation also require a fifty-fifty division. The equal rights provision found in article first, § 20, of the Connecticut constitution amended by article V, states "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex." This provision is commonly known as the Equal Rights Amendment or ERA. This amendment adding the word "sex" was adopted on November 27, 1974. In addition, the equal protection provision found in article first, § 1 of the Connecticut constitution's Declaration of Rights states "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." Both of these sections of the Connecticut constitution require "the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged." Broadley v. Board of Education, 229 Conn. 1, 8, 639 A.2d 502 (1994). Furthermore, the legislature has broad discretion in the exercise of its power to legislate and "in areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Broadley v. Board of Education, supra, 229 Conn. at 8-9; State v. Reed, 192 Conn. 520, 531, 473 A.2d 775 (1984).

There is no equal rights amendment to the United States Constitution. That equal rights amendment was approved on March 22, 1972 by the United States Senate by a vote of 84 to 8 and the House of Representatives by a vote of 354 to 23 and signed by President Richard M. Nixon. It took years of lobbying to pass the federal ERA. Thirty five states ratified the federal ERA with Connecticut ratifying on March 15, 1973. The ratification period expired on July 1, 1982 with ratification by three-fourths of the states failing by three states. The only reference to sex in the United States Constitution is in the 19th Amendment. "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex." U.S. Const. Amend. XIX, § 1.

Connecticut has approved the pending equal rights amendment to the United States constitution, House J.R. No. 1, Jan. Sess., pt. 1, vol. 1, 1973 Public Acts, p. LXXIV and its own Connecticut equal rights amendment, in addition to the CFEP legislation in the present case. The history of this mass of legislation evidences a firm commitment not only to end discrimination against women but also to do away with sex discrimination altogether.

Evening Sentinel v. National Organization for Women, 168 Conn. 26, 34, 357 A.2d 498 (1975).

No case in the state of Connecticut, either in the appellate court or trial court,has contained an argument that either the Equal Rights Amendment or the Equal Protection Clause of the state constitution compels a trial court under General Statutes § 46b-81 to render a presumption of equal division of property prior to the application of the statutory criteria. The only published case which referred to the ERA as applied to the division of property and alimony is O'Neill v. O'Neill. "On appeal, the plaintiff did not raise any claim or make any argument that the Connecticut equal rights amendment; Conn. Const. art. I, § 20; compels the courts to consider the homemaker's contribution to the acquisition of marital assets as equal to that of the wage earning spouse." O'Neill v. O'Neill, supra, 13 Conn. App. at 310 n. 2.

The plaintiff finds support in this argument in various law review articles including that contained in a 1983 University of Bridgeport Law Review article. The author states that "it can be argued that the state Equal Rights Amendment provides a constitutional basis for treating the homemaker spouse and the wage-earner spouse as beginning on an equal footing with regard to division of marital property." J. Avner, "Using the Connecticut Equal Rights Amendment at Divorce to Protect Homemakers' Contributions to the Acquisition of Marital Property," 4 U. Bridgeport L. Rev. 265, 280 (1983). This concept has not found its way into any published court decision in Connecticut.

In 1983, Judith I. Avner was a staff attorney of NOW Legal Defense and Education Fund and co-director of the ERA Impact Project. The 1983 article was written a year after the federal ERA failed to be ratified by three-fourths of the states. The Connecticut ERA had been in effect for nine years. "This article is designed to assist the practitioner in framing an argument that the Connecticut equal rights amendment mandates consideration of a homemaker's contribution to the acquisition of marital assets as equal to that of the wage earner for purposes of dividing marital assets under the equitable distribution statute. Thus, the starting point for distribution of marital property at the time of divorce is that each spouse is entitled to an equal share of the property." J. Avner, supra, 4 U. of Bridgeport L. Rev. 265. The article concludes, "A state equal rights amendment is a potent tool available to a married, economically dependent woman facing disruption of her life and family by divorce, because it gives constitutional dimension to her position as an equal partner in her marriage, and recognition of the significant contribution she has made to her family. The state ERA can be used to support this status by arguing that it mandates equality as a starting point in dividing the property acquired through mutual efforts." Id., 281.

This argument contained in this law review article is not persuasive for a number of reasons: (1) no Connecticut trial or appellate court has adopted this reasoning in the 14 years since its Connecticut publication and distribution, (2) no Connecticut case has been brought to the attention of this court in which this argument was raised, (3) when the Appellate Court first decided, five years later in 1988, that nonmonetary contribution of spouses is a criterion in Connecticut's equitable distribution scheme, it cited this very law review article in a footnote, and no court thereafter has dealt with the subject of the ERA. O'Neill v. O'Neill, supra, 13 Conn. App. at 10 n. 2.

Two Connecticut appellate cases attempted to raise this issue in the context of the ERA. The Supreme Court held, on technical grounds, that this issue was not properly before the court. Cersosimo v. Cersosimo, 188 Conn. 385, 449 A.2d 1026 (1982). "We cannot even reach what seems to be a gender-based claim of discrimination because the record before us provides an inadequate basis for considering it. There is simply no evidence that either the court at the time of the divorce in 1966 or the court involved in any of the 'subsequent modifications' did or did not consider the 'unpaid service of the wife as homemaker.'"; Id., 398.

In a per curiam decision the Appellate Court refused to consider gender bias since the claims "were not distinctly raised in the trial court." Brown v. Brown, 36 Conn. App. 597, 599, 652 A.2d 527 (1995). Eight appellate claims were raised by the plaintiff wife in a 17 year, 3 child marriage regarding post judgment visitation issues, all of which claimed gender bias by the trial judge. Typical of these claims was "the trial court's decisions were materially affected by gender bias in the court and influenced by gender stereotype statements proffered by the defendant and which decisions were based in part on gender stereotypes and not on the facts, all to the detriment of the custodial mother,and such gender bias is error and abuse of discretion by the trial court." Id., 599-600 n. 1. The Appellate Court's decision stated, "Examination of the record, the appellate briefs and consideration of the parties' oral arguments does not persuade us that the trial court abused its discretion." Id., 601.

Other Appellate Courts have dealt with claims of gender bias in nonfamily cases: State v. Morales, 45 Conn. App. 116, 128, 694 A.2d 1356 (1997) (doctrine of constancy of accusation in a sexual assault prosecution is not gender biased.); State v. Robinson, 237 Conn. 238, 244, 676 A.2d 384 (1996) (jury selection must be free from gender bias, citing J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 1421, 128 L. Ed. 2d 89 (1994); Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 102-03, 671 A.2d 349 (1996) (gender bias in employment not permitted unless gender is a bona fide occupational qualification.); State v. Figueroa, 235 Conn. 145, 185, 665 A.2d 63 (1995) (gender biased language not permitted in jury instructions); State v. Williams, 231 Conn. 235, 247, 645 A.2d 999 (1994) (use of gender stereotypes not permitted in argument to jury).

The only reported case citing the ERA in regard to spousal financial responsibility is a recent trial court decision. Yale University School of Medicine v. Scianna, 45 Conn. Supp. 84, 701 A.2d 65 (1997) (Blue, J.) (1997 Ct. Sup. 2303) (19 Conn. L. Rptr. 77). The lawsuit sought contribution from a wife under General Statutes § 46b-37. A Motion for Summary Judgment filed by the separated wife gave the court the opportunity to discuss the ERA. The decision properly noted that those marital financial statutes and their history "is inextricably linked with the fundamental changes in society and the status of women that have occurred in the course of our nation's growth." Yale University School of Medicine v. Scianna, supra, 45 Conn. Supp. 89; Yale University School of Medicine v. Collier, 206 Conn. 31, 35, 536 A.2d 588 (1988). Judge Blue notes the change in women's rights. "To state a complex matter briefly, at common law married women had no property and therefore, could make no contracts. As Blackstone put it, 'the very being or legal existence of the woman is suspended during the marriage.' 1 W. Blackstone, Commentaries on the Laws of England, (1807) p. 442." Yale University School of Medicine v. Scianna, supra, 89. The effect of the Married Women's Act of 1877, Public Acts 1877 c. 114, was to permit married women for the first time to own property and to make contracts with third persons. In 1935 the Married Women's Act was amended giving separated husbands a defense from third parties' suits provided he was paying reasonable support to his wife. Wives had no such defense since it was presumed they would not be sued in the first place.

Commenting on the 1974 ERA to the Connecticut constitution, the Scianna court held "Connecticut amended its constitution to include an equal rights amendment, prohibiting discrimination because of sex. Conn. Const., amend. V. These developments plainly rendered the language of the 1935 amendment to the Married Women's Act socially obsolete and constitutionally vulnerable." Id., 91-92. Shortly after that equal rights amendment, the legislature responded and in 1977 expanded the language of General Statutes § 46b-87, making the statutory language gender neutral. P.A. 77-288. The pre-1974 statute read, "No action shall be maintained against a husband under the provisions of this section, either during or subsequent to any period of separation from his wife, for any liability incurred by her during such period of separation, if during such period, he shall have provided her with reasonable support." General Statutes § 1596c (1935 Sup.). In 1977, an amendment changed that statute to read, "No action may be maintained against either spouse under the provisions of this section, either during or after any period of separation from the other spouse, for any liability incurred by the other spouse during the separation, if, during the separation the spouse who is liable for support of the other spouse has provided the other spouse with reasonable support." P.A. 77-288, § 1; now General Statutes § 46b-37(d).

The 1977 act, in response to the 1974 ERA made two significant changes: The first change is that the separation defense is now available to husbands and wives alike; and the second change is the liberal use of the phrases, "either spouse" or "the other spouse," making the defenses available to the provider spouses and the recipient spouses alike, at least as long as reasonable support is paid. Scianna found that the pre-1974 statute was subject to attack under the ERA but the 1977 amendment solved the constitutional problem. Judge Blue granted the defendant wife's motion for summary judgment based upon the fact that the wife was supported during the separation, and turned aside the constitutional attack on the spousal contribution statute, General Statutes § 46b-37.

The Supreme Court has also held that the spouse neutral statute authorizing attorney fees in dissolution actions, General Statutes § 46b-62, "has dispelled the gender-oriented assumptions of the common-law rule." Arrigoni v. Arrigoni, 184 Conn. 513, 518, 440 A.2d 206 (1981). No other trial court decision has discussed the ERA and its effect on voiding a marital or family statute.

The language of General Statutes §§ 46b-81 and 46b-82 is spouse neutral and has been so for years. For hundreds of years the language was not spouse neutral, and thus, these provisions were subject to post 1974 attack under the ERA. Post 1974 amendments to these two statutes were also spouse neutral. For example, the courts now have authority to pass title to real property to either party or to a third party. P.A. 75-331. The court may order either party to contract with a third party for periodic payments. P.A. 83-527. Both statutes have remained spouse neutral since 1974.

Only two appellate cases have discussed the ERA in a marital setting, Cersosimo v. Cersosimo in 1982 and Brown v. Brown in 1995. Two cases have discussed the issue on equal protection grounds. The first was Stern v. Stern, 165 Conn. 190, 332 A.2d 78 (1973). Stern challenged the enforcement of the pre-1973 alimony pendente lite statute, then General Statutes § 46-21, from an order granting the plaintiff wife alimony pendente lite. The husband claimed since by statute only men are compelled to pay alimony, the statute discriminates against men solely on the basis of sex in violation of the equal protection clause of the fourteenth amendment to the federal constitution. The Supreme Court in Stern held that the classification in General Statutes § 46-21 was not based exclusively on sex but on the legislature's then conception of family relationships. That legislative policy stated that a husband should be primarily responsible for the support of the wife and family. This decision was based on common law enacted into statutory form. Additionally, the court held that the defendant failed to demonstrate that General Statutes § 46-21's imposition of alimony only on a husband was unreasonable or arbitrary and, thus, unconstitutional. Stern v. Stern, supra, 199.

The Stern case was based upon the claim that the statute discriminated against the husband on the basis of sex and that such a discrimination violated the equal protection clause of the fourteenth amendment of the federal constitution. Stern was decided on June 29, 1973, prior to the effective date of P.A. 73-373, our spouse neutral equitable distribution scheme. The Supreme Court was aware of that statutory change. Stern v. Stern, supra, 165 Conn. 199 n. 4. It can be presumed that the trial court was not aware of P.A. 73-373, the order having been entered prior to the 1973 legislative session. Neither the trial court nor the Supreme Court made reference to Connecticut's movement to approve a state ERA on the basis of sex. That ERA concept though was not foreign to the Supreme Court since a reference to the Connecticut legislature's approval of the ERA to the federal constitution is contained in the opinion. Stern v. Stern, supra, 195 n. 2. So too, the ERA argument advanced by the plaintiff was touched on in the court's recitation of the defendant's claim that "the statute therefore discriminates against men solely on the basis of sex." Id., 192.

The second case to discuss the issue on equal protection grounds was Lane v. Lane, 187 Conn. 144, 146, 444 A.2d 1377 (1982). There, the mention of a wife's past family support and not of a husband's contribution was not gender-based discrimination when the wife was awarded a claimed disproportionate share of the assets. "As to the defendant's equal protection claim, the record shows that the trial court considered all relevant factors. The court was not required to recite all of them . . . or make specific findings concerning each. . . ." (Citations omitted.) Id.

The Supreme Court did annotate this argument with a supporting case. "The Supreme Court of Florida in Pacheco v. Pacheco, 246 So. 2d 778, 779 described such a claim as 'a problem which . . . may become a challenge to advocates of total equality between women and men.'" Stern v. Stern, supra, 165 Conn. 192 n. 1. "Prior to the amendment of article first, § 20, of the constitution of Connecticut, our decisions often noted that the equal protection clauses of the state and federal constitutions mean substantially the same thing and may be considered together." Page v. Welfare Commissioner, 170 Conn. 258, 264, 365 A.2d 1118 (1976); Tough v. Ives, 162 Conn. 274, 292, 294 A.2d 67 (1972).

The legislature responded to the 1974 ERA and amended the spousal financial statute in 1977. General Statutes § 46b-37 (P.A. 77-288). Yale University School of Medicine v. Scianna, supra, 45 Conn. Supp. 92. This statutory enactment added spouse neutral language correcting its ERA violation. The two statutes in question, General Statutes §§ 46b-81 and 46b-82, have already been couched in spouse neutral terms prior to the passage of the ERA. The legislature has also reacted to the ERA and since 1974 has rewritten other statutes in gender neutral terms. General Statutes §§ 4a-60a, 31-19, 31-20, 51-218, 51-219 and 53a-65. The legislature knew how to draft statutes to conform to the ERA. Legislative inaction or silence can be a guide to legislative intent. Martin v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997).

The following citation in Collier referring to the ERA in its footnote 3 must be read in conjunction with Scianna:

The evolutionary changes in married women's rights that enabled them to acquire and dispose of property also generated changes in the obligations of each spouse to the marriage. In the evolutionary process the primary obligation of the husband to provide support for his wife and children under the common law evolved into a joint duty of each spouse to support the family. Section 46b-37(b) provides the basic statutory predicate for this change. Article fifth of the Connecticut constitution, amending § 20 of article first of the Connecticut constitution, fn. 3, however, provides the constitutional underpinnings for contemporary departure from the primary duty of one spouse to the joint duty of each spouse to support his or her family.

Yale University School of Medicine v. Collier, supra, 206 Conn. 35.

This citation supports the plaintiff's position, but the weakness of that position is shown by applying rules of legislative construction.

Connecticut common law contained no fifty-fifty presumption of marital property division upon divorce. The plaintiff's ERA interpretation would change common law. The quotation in the above paragraph is in relation to the spousal support statute, General Statutes § 46b-37(b), which also changed common law. Such a common law change must be strictly construed.

In seeking to hold the named defendant liable under 46b-37(b)(2) where at common law no liability existed, 'the plaintiff ignores the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction. Stoll v. Judd Co., 106 Conn. 551, 556, 138 A. 479 [1927]. In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. The court is to go no faster and no further than the legislature has gone. . . . A legislative intention not expressed in some appropriate manner has no legal existence. Willoughby v. New Haven, 123 Conn. 446, 454-55, 197 A. 85 [1937]. Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975). We have stated further that no statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express. Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951), quoting Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L. Ed. 892 (1879).

(Internal quotation marks omitted.) Yale University School of

Medicine v. Collier, supra, 206 Conn. 36-37.

Judicial restraint and strict construction rules do not permit this court to engraft a fifty-fifty presumption on the equitable distribution scheme via the ERA.

The plaintiff appears to argue, that despite the plain language of the two statutes that do not, on their face, provide for a fifty-fifty presumption, the 1974 ERA has automatically amended the statutes to contain such a presumption. This "self-executing" statutory amendment authority finds no support in Connecticut. Anselmo v. Cox, 135 Conn. 78, 81, 60 A.2d 767 (1948). In Anselmo, although there was no statute permitting the plaintiff to commence suit against the state for a temporary shutting off of all access to his gasoline station, he claimed he had such a right pursuant to the taking provision of the constitution of Connecticut. "He rests his argument upon the proposition that the provision of § 11 of article first of the constitution of Connecticut that 'the property of no person shall be taken for public use, without just compensation therefor,' is self-executing and that no further specific permission to sue the state is necessary." Anselmo v. Cox, supra, 81. The granting of the demurrer was upheld by the Supreme Court of Errors on the basis that the constitutional provision was not self-executing and the plaintiff could not point to any statutory authority to maintain his position.

This rule that the constitution does not create a right, absent a specific statutory or common law authority, is the current law of Connecticut. "We should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutory remedy. This conclusion accords with the constitutional principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public policy." Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 339, 627 A.2d 909 (1993). The legislature has established a statutory remedy for dividing income and property in marital disputes. It is up to the legislature to create a fifty-fifty presumption. Neither the constitution, the ERA, case law, nor the current statutes do so.

The law in Connecticut concerning the division of property and income in a dissolution proceeding is and has remained the same for many years. "The court must consider all of the statutory criteria in determining how to divide the parties' property in a dissolution action. . . . 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. . . ." (Citations omitted; internal quotation marks omitted.) Burns v. Burns, 41 Conn. App. 716, 720-21, 677 A.2d 971 (1996). Although the statutes recite criteria, they establish no guidelines on how to apply these criteria. Such a lack of guidelines or presumptions has been upheld as meeting constitutional standards. Joy v. Joy, 178 Conn. 254, 255, 423 A.2d 895 (1979). In Joy, Connecticut's no fault divorce statute was held to be constitutional even though the statute contains no objective guidelines. "We decline, as have other courts that have considered the issue . . . to circumscribe this delicate process of fact-finding by imposing the constraint of guidelines on an inquiry that is necessarily individualized and particularized." (Citations omitted.) Id., 255. "The absence of objective guidelines does not mean abdication of judicial function . . . ." Id.

The plaintiff's argument can be summed up as follows: the statute does not contain any guidelines on how to apply its criteria. The application is left up to judicial discretion. Consequently, the results have been unfair to the economically deprived spouse, and thus, a set rule must be created to right this wrong.

The plaintiff would have the decision in this case take its place along with the great events making changes in women's rights: the 1848 Seneca Falls Convention; the Married Women's Act of 1877 in Connecticut; the 19th Amendment to the United States Constitution ratified in Connecticut on September 14 and 20, 1920; and the ERA to the Connecticut constitution adopted November 27, 1974. This historical progression, while compelling, does not warrant the results the plaintiff seeks. The plaintiff seeks, by judicial fiat, to declare unconstitutional, statutes in order to correct an economic disorder.

To do this would be judicial overreaching, "Lochnerizing" a provision of our constitution. Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905). In a famous dissent in Lochner, Justice Oliver Wendell Holmes stated that "a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." Lochner v. New York, supra, 198 U.S. 75-76. The judicial overreaching of Lochner has been universally discredited, and Justice Holmes' dissenting position is the law of the land. American Dredging Co. v. Miller, 510 U.S. 443, 447 n. 1, 127 L. Ed. 2d 285, 114 S. Ct. 981 (1994); Moore v. East Cleveland, 431 U.S. 494, 502, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 (1937).

Even if this court believes that a fifty-fifty presumption may be a good idea (this decision not requiring such a judicial expression), "that determination is for the legislature, not for us, to make. Because this court is precluded from substituting its own ideas of what would be a wise provision in place of a clear expression of legislative will." (Internal quotation marks omitted.) Gay & Lesbian Law Students Assn. v. Board of Trustees, supra, 236 Conn. at 514 (Palmer, J., dissenting); See also Gonsalves v. West Haven, 232 Conn. 17, 26, 653 A.2d 156 (1995). To interpret the statutory equitable distribution scheme in this fashion would legislate by judicial fiat and in the opinion of this court would distort the plain and unambiguous language of the statutes. "This distortion of plain language would confound philologists, should disturb the trial bench, and makes light of the authority of the General Assembly." Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 767, 699 A.2d 81 (1997) (McDonald, J., dissenting).

No rule can be established in family cases to fit every scenario whether community property, statutory presumption of fifty-fifty or equitable distribution. "It is nonetheless impossible to draft reasonable rules that unambiguously resolve every factual variation. Hence, no formulation can eliminate all need for judicial discretion." American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations, p.275 (Tentative Draft No. 2, 1996); Olmstead v. Olmstead, supra, 85 Conn. 478.

IN SEX DISCRIMINATION CLAIMS UNDER THE STATE ERA, STRICT SCRUTINY IS THE STANDARD

 

The plaintiff claims that the equitable distribution scheme violates the ERA when it does not provide for a presumption of a fifty-fifty division. What is the test to be applied to the constitutional analysis of these statutes? Although not fully briefed by either party, it appears three tests could be applied: rational basis, strict scrutiny and an intermediate standard. The rational basis argument is as follows:

The equal protection provisions of our state constitution require 'the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.' Reynolds v. Sims, 377 U.S. 533, 565, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Franklin v. Berger, 211 Conn. 591, 594, 560 A.2d 444 (1989). We recognize, however, that the legislature has broad discretion in the exercise of its power to legislate, and that 'in areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211 (1993); State v. Reed, 192 Conn. 520, 531, 473 A.2d 775 (1984).

Broadley v. Board of Education, supra, 229 Conn. at 8-9.

The strict scrutiny argument is as follows:

Statutes impinging upon fundamental rights or establishing suspect classifications 'are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.' Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985);Horton v. Meskill, 172 Conn. 615, 640, 376 A.2d 359.

Broadley v. Board of Education, supra, 229 Conn. at 10.

Under the intermediate standard for gender-based classifications, "a statute or regulation which treats males and females differently violates the equal protection clause unless the classification is substantially related to the achievement of an important government interest." Dydyn v. Department of Liquor Control, 12 Conn. App. 455, 464, 531 A.2d 170 (1987). In Dydyn, restrictions on the exposure of female breasts in an establishment selling licensed liquor was found to be substantially related to an important governmental interest, i.e., reduction of public disturbances in and around such establishments. An intermediate standard of review was applied to reach this result.

The ERA is contained in article first of the Connecticut constitution also known as "Declaration of Rights." Based on federal precedent and the lack of a clear Connecticut mandate, a strong argument can be made that a violation of Connecticut's Declaration of Rights must use the strict scrutiny test. Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973).

The federal constitutional standard in sex discrimination cases was established in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976). The intermediate standard was used, but the application of the standard appeared to have used language similar to the rational basis standard. Craig v. Boren struck down as unconstitutional, sex discrimination in an Oklahoma statute that allowed females to purchase beer at a younger age than males. It is now clear that gender bias claims are subject to the heightened scrutiny standard of the federal constitution. J.E.B. v. Alabama Ex Rel. T.B., 511 U.S. 127, 135, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). Referring to the federal standard of heightened scrutiny the Supreme Court said: "This standard of review, which is less demanding than 'strict scrutiny' but more demanding than the standard rational relation test, has generally been applied only in cases that involved discriminatory classifications based on sex or illegitimacy." Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 459, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988).

The plaintiff has failed to argue which method is to be used to examine the constitutionally of the statute,i.e., rational basis, strict scrutiny or intermediate standard. An argument can be made that an analysis under all three of these standards would not declare our equitable distribution scheme unconstitutional. Stern v. Stern, 165 Conn. 190, 194-95, 332 A.2d 78 (1973); Page v. Welfare Commissioner, supra, 170 Conn. 267-68; Stanton v. Stanton, 421 U.S. 7, 17, 95 S. Ct. 1373, 43 L. Ed. 2d 688 (1975) (under any test compelling state interest, rational basis, or something in between, a statute in Utah requiring a parent to support a male child until twenty-one and a female child until eighteen does not survive an equal protection attack).

Standards of review for an analysis under the state constitution's Equal Rights Amendment were discussed in 1986 by Justice Berdon. "At the very least, the standard for judicial review of sex classifications under our ERA is strict scrutiny." Doe v. Maher, 40 Conn. Supp. 394, 448, 515 A.2d 134 (1986). Our Supreme Court has not yet decided the standard for review for sex discrimination under Connecticut's equal rights amendment. Prior to Doe v. Maher in 1986, the Supreme Court had the opportunity to discuss a standard twice. In dicta the Supreme Court stated "that the passage of the equal rights amendment mandates the use of a strict scrutiny test." Page v. Welfare Commissioner, supra, 170 Conn. 267. "We need not decide whether the strict scrutiny test mandated by the equal rights amendment is applicable to the present case, for index 344.4, like the Utah statute ruled invalid in Stanton v. Stanton, supra, 17, cannot survive an equal protection attack 'under any test - compelling state interest, or rational basis, or something in between.'" Page v. Welfare Commissioner, supra, 170 Conn. at 267-68.

In the second case, although not deciding the level of review under the ERA, the Supreme Court noted that the level of review would be different than the previously considered rational basis test. Stern v. Stern, 165 Conn. 190, 194, 332 A.2d 78 (1973). Finally it is noted that in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), the Supreme Court cited Doe v. Maher with approval. The court noted in Geisler that in Doe, the trial court used strict scrutiny to analyze a sex discrimination claim based on the equal protection clause of the state constitution, relying, in part, on dicta from the Connecticut Supreme Court regarding what standard would be used once Connecticut's equal rights amendment was adopted. By delineating "sex" in the ERA, the Connecticut constitution has declared that sex discrimination impinges upon a fundamental right. "If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest." Ryszkiewicz v. New Britain, 193 Conn. 589, 596, 479 A.2d 793 (1984). This court concludes that the strict scrutiny test is the proper test to determine if a statute discriminates by reason of sex, and thus, violates Connecticut's ERA.

This conclusion is supported by a trend shown in the more recent Supreme Court cases. Connecticut has long cited United States Supreme Court cases that hold certain classifications are recognized as suspect. Leech v. Veterans' Bonus Division Appeals Board, 179 Conn. 311, 314, 426 A.2d 289 (1979).

The United States Supreme Court has recognized as suspect, classifications that are based on alienage, national origin, race, and, to a somewhat lesser extent, gender. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272-73, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979).

Eielson v. Parker, 179 Conn. 552, 563, 427 A.2d 814 (1980).

In 1980 the Supreme Court cited Frontiero v. Richardson as follows:

'Classifications based on sex, like classifications based on race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny.' Frontiero v. Richardson, 411 U.S. 677, 682, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (plurality opinion). While not subjected to the 'strict scrutiny' analysis which occurs when a 'suspect class' is involved, nevertheless, 'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976).

State v. Nims, 180 Conn. 589, 596, 430 A.2d 1306 (1980) (a jury gender case).

In equal rights challenges under the Connecticut constitution, the Supreme Court has determined that if a right is determined to be fundamental, any infringement of that right must be strictly scrutinized. "We must conclude that in Connecticut the right to education is so basic and fundamental that any infringement of that right must be strictly scrutinized." Horton v. Meskill, 172 Conn. 615, 646, 376 A.2d 359 (1977) (Horton I). This rule has been consistently discussed and applied in later cases. In re Juvenile Appeal, (83-CD) 189 Conn. 276, 285, 455 A.2d 1313 (1983); Campbell v. Board of Education, 193 Conn. 93, 104, 475 A.2d 289 (1984); Horton v. Meskill, 195 Conn. 24, 34-35, 486 A.2d 1099 (1985) (Horton II); Blakeslee Arpaia Chapman, Inc. v. E I Constructors, Inc., 239 Conn. 708, 756, 687 A.2d 506 (1997).

In 1993 the Supreme Court stated, "Although this court has not previously decided what level of judicial scrutiny is appropriate for a claimed violation of amendment twenty-one. . . ." Daly v. DelPonte, 225 Conn. 499, 512, 624 A.2d 876 (1993). After review of case law under the federal constitution (the prior interpretation of the equal protection provision of the state constitution being different from that of the federal constitution), a 1990 law review article published by Justice Berdon and the legislative history of the 1984 constitutional amendment under consideration, the Supreme Court held: "We conclude, therefore, that amendment twenty-one's protection for those possessing physical and mental disabilities identifies the members of this class as a group especially subject to discrimination and requires the application of the highest standard of review to vindicate their constitutional rights. As the Appellate Court held, that standard requires strict scrutiny of the challenged government action." Id., 515.

In 1995 the Supreme Court reviewed the test in the context of whether the new seventeen year statute of limitations in civil cases seeking money damages for sexual abuse, General Statutes § 52-577d, violates the equal protection clause of the federal constitution. Giordano v. Giordano, 39 Conn. App. 183, 189, 664 A.2d 1136 (1995). No independent analysis was set forth as to any state constitutional violation, and the Appellate Court, citing State v. Barnes, 232 Conn. 740, 744 n.4, 657 A.2d 611 (1995), refused to consider a state constitutional claim.

 

 

Connecticut courts have held, in accordance with the federal frame of analysis, that state action concerning social and economic regulation, with some exceptions, will survive an equal protection challenge if it satisfies a rational basis test. Daly v. DelPonte, 225 Conn. 499, 513, 624 A.2d 876 (1993). The exceptions relate to state action that invidiously discriminates against a suspect class, such as the physically or mentally disabled, members of a race or gender, or state action that affects a fundamental right. When that occurs, the action passes constitutional muster only if it survives strict scrutiny. Id. If the statute does not involve fundamental rights or suspect classifications, the legislation is constitutional if any difference in treatment is rationally related to a legitimate government interest. G.D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102 S. Ct. 1137, 71 L. Ed. 2d 250 (1982); Daily v. New Britain Machine Co., 200 Conn. 562, 578, 512 A.2d 893 (1986); Laden v. Warden, 169 Conn. 540, 542-43, 363 A.2d 1063 (1975).

Giordano v. Giordano, supra, 189. No state ERA case alleging sex discrimination was cited in support of the conclusion. This court concludes that the standard is strict scrutiny in state ERA gender discrimination claims.

THE STATE ERA DOES NOT RENDER GENERAL STATUTES §§ 46b-81(c) AND 46b-82 UNCONSTITUTIONAL ON THE BASIS THAT THERE IS INHERENT GENDER BIAS DUE TO NO PRESUMPTION OF A FIFTY-FIFTY DIVISION OF PROPERTY

The plaintiff is claiming that the two statutes, by not containing a fifty-fifty presumption of division, discriminate based on sex in violation of the ERA, and thus, are unconstitutional. The plaintiff is not claiming in this argument that the statute can be read on its face as requiring a fifty-fifty presumption or that the statute was automatically modified by the legislature's 1974 ERA passage to create a fifty-fifty presumption. The plaintiff is also not claiming that Connecticut is a community property state. All of these arguments have been dealt with in prior sections of this decision.

"[A] party who challenges the constitutionality of a statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality. . . . In addition to showing that [the statute] is unconstitutional beyond a reasonable doubt, [the plaintiff] must show that its effect or impact on him adversely affects a constitutionally protected right which he has. . . . Finally, while the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case. . . ." (Citations omitted; internal quotations marks omitted.) Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 203, 660 A.2d 358 (1995); See also Connecticut National Bank v. Giacomi, 242 Conn. 17, 44, 699 A.2d 101 (1997).

Another general proposition to be considered in a constitutional attack on a statute is as follows: "It is also true that this court will not ordinarily construe a statute whose meaning is plain and unambiguous. . . . This rule of statutory construction does not apply however if, as in this case, a literal reading places a statute in constitutional jeopardy. We are bound to assume that the legislature intended, in enacting a particular law, to achieve its purpose in a manner which is both effective and constitutional. . . ." (Citations omitted.) Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). Thus, this rule trumps the plain and unambiguous rule.

The general proposition was tested last year in a grandparent visitation case under General Statutes § 46b-59. Castagno v. Wholean, 239 Conn. 336, 684 A.2d 1181 (1996). Read literally the statute would have allowed "any person, under any circumstances, to petition the court for visitation rights, no matter how remote his or her connection to the child." Id., 340. This would conflict with the constitutionality protected fundamental rights of family autonomy and privacy. "We therefore construe the statute to avoid such an unreasonable interpretation." Id. To save the statute the Supreme Court engrafted a standing requirement for the applicant to show "that the family unit was no longer intact." Id., 337. The equitable distribution statutes have been held by this court to be plain and unambiguous. The court sees, initially, no obvious constitutional infirmity and, thus, is not required to construe the statutes to avoid an unconstitutional interpretation.

A determination as to whether or not a statute violates the state constitution requires consideration in the six following areas and approaches: (1) the textual approach, (2) holdings and dicta of this court and the Appellate Courts; (3) federal precedent; (4) sister state decisions or sibling approach; (5) the historical approach, including the historical constitutional setting and debates of the framers; and (6) economic/sociological considerations. State v. Geisler, supra, 222 Conn. 685. This court will discuss each of these six considerations in analyzing whether or not General Statutes § 46b-81 and § 46b-82 are unconstitutional in light of the 1974 equal rights amendment to the constitution of Connecticut. Moore v. Ganim, 233 Conn. 557, 701 n. 17, 660 A.2d 742 (1995).

Certain of these approaches have not been briefed or argued by the plaintiff. The plaintiff bears a heavy burden in claiming a statute unconstitutional. Monroe v. Monroe, 177 Conn. 173, 180, 413 A.2d 819 (1979); Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972). This court does not have to consider the approaches not briefed. "We have repeatedly held that we will not engage in a separate constitutional analysis where the parties do not provide us with such analysis." Associates Financial Services of America, Inc. v. Sorenson, 46 Conn. App. 721, 724 n.5, 700 A.2d 107 (1997); State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991). Arguments that are just mentioned but not briefed may be deemed by the court to be abandoned and not subject to court review. Cheney v. Strasburger, 168 Conn. 135, 142, 357 A.2d 905 (1975).

The plaintiff has not argued that an inherent gender bias in the equitable distribution scheme is a result of state action. No evidence of state action, or inaction by the state resulting in the equivalent of state action, was offered. There can be no equal protection violation on that basis. Sheff v. O'Neill, 238 Conn. 1, 59, 678 A.2d 1267 (1996). Since the plaintiff failed to brief this argument, offer adequate evidence or file appropriate claims of law, the plaintiff is deemed to have abandoned a "state action" attack on the statutory scheme. Cheney v. Strasburger, supra, 142.

In order to raise the constitutionality of a statute the plaintiff must have standing. The issue must be in actual controversy.

To establish standing to challenge the constitutionality of a statute one must sustain the burden of proving that the effect or impact of the challenged statute on him adversely affects a constitutionally protected right which has. This means a right which he proves that he has under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist. [Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698]; Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49; Kellems v. Brown, 163 Conn. 478, 483, 313 A.2d 53.

(Internal quotation marks omitted.) Stern v. Stern, 165 Conn. 190, 332 A.2d 78,

192 (1973). The plaintiff has not yet obtained any order under the equitable distribution statutes but is seeking a distribution of assets under both the alimony and property statutes. The plaintiff has standing to challenge the constitutionality of these two statutes. The plaintiff has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues, upon which the court so largely depends for illumination of difficult constitutional questions." (Internal quotation marks omitted.) Linda R.S. v. Richard D., 410 U.S. 614, 616, 93 S. Ct. 1146, 35 L. Ed. 2d 536, 540 (1973); Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). "Standing to raise constitutional issues, however, is not limited merely to those who seek the benefits of a statute; if a party can demonstrate that he has sustained or is in immediate danger of sustaining some direct injury as a result of enforcement then he has standing to challenge such enforcement." Stern v. Stern, supra, 193; see also Linda R.S. v. Richard D., supra, 410 U.S. 618.

1. THE TEXTUAL APPROACH

It is unclear under the first approach which document's texts are to be analyzed, i.e., the constitution or the statute. If the text is the 1974 ERA, the only change made in this constitutional discrimination provision was the addition of one word, "sex." "In dealing with constitutional provisions we must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law of the state." Stolberg v. Caldwell, 175 Conn. 586, 597, 402 A.2d 763 (1978). "Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution." Id., 597-98. Since only one word was added to a Declaration of Rights section that already had twenty separate sections, the above two standards do not need to be applied.The Connecticut legislature ratified the ERA to the federal constitution the year before it amended its own state constitutional discrimination provisions, thus, creating a state ERA. The state ERA, by adding the word "sex" to a previous Declaration of Rights against discrimination, did what it set out to do, provide a basis of attack on statutes and rules of law that discriminated against people by reason of sex.

The court considers that a discussion of the texts of the two statutes in question, General Statutes §§ 46b-81 and 46b-82, is also relevant. It is clear that the former statute, General Statutes § 46-21, authorizing alimony and property to be awarded only to the wife, was discriminatory based on sex.

The two statutes, General Statutes § 46b-81, assigning property, and § 46b-82, periodic alimony, are almost identical. "The two separate statutes as they now exist are almost identical in their statutory criteria. All of the factors of the statute relating to alimony awards are contained within the factors enumerated in General Statutes § 46b-81. The latter statute is more expansive in that 'liabilities' of the parties and the 'opportunity of each for future acquisition of capital assets and income' should also be considered, as well as the 'contribution. . . in the acquisition, preservation, or appreciation in value of their respective estates.'" Russo v. Russo, 1 Conn. App. 604, 606, 474 A.2d 473 (1984).

General Statutes § 46b-81 is an old statute. It was based upon the common law principle of the husband's duty to support the wife and on the legislature's concept of family relationships existing at that time. Stern v. Stern, supra, 165 Conn. 196. The predecessor to that statute, General Statutes § 46-21, provided that the Superior Court may "order alimony to be paid from the husband's income, may change her name and may order alimony pendente lite to be paid to the wife in any complaint or cross-bill for divorce pending in said court." Exhibit 116. Accordingly, the Superior Court did not have authority to order temporary alimony to a husband nor did the court have the power under General Statutes § 46-21 to compel a woman to support her husband. "The statute on its face makes distinctions on the basis of sex and thus establishes a classification subject to scrutiny under the equal protection clause." Stern v. Stern, supra, 194; see also Reed v. Reed, 404 U.S. 71, 75, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971); Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, 28 L. Ed. 923 (1885). This statute, the predecessor to the current statute, would appear to violate the 1974 equal rights amendment to the Connecticut constitution. Stern was a 1973 case, and thus, could not rule on the state ERA adopted in 1974. In dicta Stern noted that the federal ERA, ratified in 1973 by Connecticut, would resolve this issue in the political, not judicial, arena. Stern v. Stern, supra, 195 n. 2.

General Statutes § 46-21 was modified and recodified as General Statutes § 46b-81 and § 46b-82. Exhibits 115 116 and 117. The legislature made the statute sex or spouse neutral. The textual deficiency noted in Stern v. Stern was corrected by the legislature. General Statutes § 46b-81 as recently codified, and its sister statute, General Statutes § 46b-82, currently comply with the textual requirements of Connecticut's constitutional equal rights amendment. Yale University of Medicine v. Scianna, 45 Conn. Supp. 84, 92, 701 A.2d 65 (1997).

2. HOLDINGS AND DICTA OF THIS COURT AND THE APPELLATE COURTS

There are no Connecticut decisions that address the issue, whether General Statutes §§ 46b-81 and 46b-82 violate the equal rights amendment. A footnote in O'Neill v. O'Neill, supra, 13 Conn. App. at 310 n. 2 contains the only reference to the equal rights amendment and that reference is dicta. This court has already discussed one case referring to the ERA: Page v. Welfare Commissioner. The only other appellate case in which the ERA was raised was Lockwood v. Killian, 172 Conn. 496, 500, 375 A.2d 998 (1977), a trust case in which the opinion chose not to address the ERA issue briefed by the parties.

The Appellate Court and the Supreme Court were well aware that trial courts unanimously have cited with approval the nonmonetary contributions holding of O'Neill v. O'Neill. They are equally well aware of footnote 2. No further decisions have been rendered stating that General Statutes §§ 46b-81 and 46b-82 are not in compliance with the equal rights amendment.

"It is well settled that a plaintiff who attacks a statute on constitutional grounds has no easy burden." Stern v. Stern, supra, 165 Conn. 195. "Because of the separation of powers, one claiming that a legislative enactment is invalid on the ground that it is unconstitutional must establish its invalidity on that ground beyond a reasonable doubt." Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49 (1968). "Where a statute reasonably admits of two constructions, one valid and the other invalid on the ground of unconstitutionality, courts should adopt the construction which will uphold the statute even though that construction may not be the most obvious one." Id., 153; see also Carilli v. Pension Commission, 154 Conn. 1, 8, 220 A.2d 439 (1966).

The plaintiff has not cited the holdings or dicta of any Supreme Court or Appellate Court decision, indicating that either statute is in violation of the ERA. The trial court decision that tangentially touches on the issue is Yale School of Medicine v. Scianna, 45 Conn. Supp. 84, 701 A.2d 65 (1997) (General Statutes § 46b-37 was deficient and its post 1974 legislative amendment making it gender neutral corrected the deficiency). The plaintiff claims that without a presumption or a rule of application of the various criteria of equitable distribution, there can be no objectivity as to such a determination. "It is simply a subjective judgment call by whatever personality happens to be sitting on the case, along with all of his or her individual idiosyncracies, prejudices and personal rules of thumb." Thus, the statute is unconstitutional as applied in these circumstances in violation of ERA. Engrafting a fifty-fifty presumption to the statutory scheme saves its constitutionally, the plaintiff claims.

This argument has been rejected concerning the award of damages which are historically not capable of mathematical certainty. Damage rules in Connecticut are constitutional. Pisel v. Stamford Hospital, 180 Conn. 314, 343, 430 A.2d 1 (1980). "It may be conceded that our rule gives no mathematical formula which the trier can apply." Floyd v. Fruit Industries, Inc., 144 Conn. 659, 676, 136 A.2d 918 (1957). Our no fault divorce statute, which contains no method of application, is constitutional. Joy v. Joy, supra, 178 Conn. 256.

 

 

In family matters, the court exercises its equitable powers. The balancing of equities is a matter which falls within the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). For that reason, equitable remedies are not bound by formula but are molded to the needs of justice. Hebrew University Assn. v. Nye, 26 Conn. Supp. 342, 348-49, 223 A.2d 397 (1966). Oneglia v. Oneglia, 14 Conn. App. 267, 271-72, 540 A.2d 713 (1988). Lawler v. Lawler, 16 Conn. App. 193, 204, 547 A.2d 89 (1988).

(Internal quotation marks omitted.) Vandal v. Vandal, 31 Conn. App. 561, 565, 626 A.2d 784 (1993).

The plaintiff cites Sheff v. O'Neill, 238 Conn. 1, 9, 678 A.2d 1267 (1996) for the theory that even where a statute is neutral, equal protection claims can arise by reason of state action. Extensive evidence was taken in Sheff v. O'Neill establishing de facto segregation in the Hartford school system despite the fact that the subject statutes were neutral and lacking in discriminatory intent. The "state action doctrine" was applied because the court found that the state failed to take proper remedial action to lessen de facto racial and ethnic segregation. No evidence was offered in this case of any state action or a pattern of state trial court decisions that discriminated in dissolution awards by reason of sex. Only one citation is furnished to buttress this claim. Barbara Stock, "Burning Down the House: Toward a Theory of More Equitable Distribution," 40 Rutgers L. Rev. 1173 (1988). This is insufficient to establish "state action."

Therefore, this court believes that the Supreme Court and the Appellate Court would not hold the equitable distribution statutes unconstitutional based on the standard of "holdings and dicta of this court and the Appellate Courts."

3. FEDERAL PRECEDENT

Article first of the Connecticut constitution established a "Declaration of Rights." Section 1 (Equality of Rights) and § 20 (Equal Protection a/k/a Equal Rights) are both contained in article first, Declaration of Rights.

We have frequently relied upon decisions of the United States Supreme Court interpreting the fourth amendment, as well as other amendments to the United States constitution, to define the contours of the protections provided in the various sections of the declaration of rights contained in our state constitution. We have also, however, determined in some instances that the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court. State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988); State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988); State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985). In so doing, we have recognized that 'in the area of fundamental civil liberties - which includes all protections of the declaration of rights contained in article first of the Connecticut constitution - we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut residents have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.' Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977).

State v. Marsala, 216 Conn. 150, 159-60, 579 A.2d 58 (1990).

The equ