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Wendt v. Wendt

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

Lorna J. Wendt v. Gary C. Wendt

D.N. FA 96 014 95 62 S

Superior Court Of Connecticut,  Judicial District of Stamford-Norwalk

(1998 Conn. Super. LEXIS 1023)

March 31, 1998

MEMORANDUM OF DECISION

This contested dissolution of marriage action addresses a myriad of undecided marital financial issues in Connecticut. Counsel have informed the court that this decision may have an impact beyond the territorial boundaries of the State of Connecticut. At the commencement of trial, the parties presented a written stipulation to the court in which the parties agreed, that the marriage of the parties has broken down irretrievably, a dissolution of marriage ought to enter and no evidence would be offered as to the "causes for the dissolution of the marriage," a statutory factor contained in General Statutes 46b-81(c) and 46b-82.

That was the end of the parties' agreement. Virtually every aspect of the parties' financial relationship over the 31 years of the marriage was examined. The trial took 18 days. Two interlocutory appeals were taken to the Appellate Court during the trial, one of which was subject to Supreme Court review. Over one hundred exhibits were offered, a number of which contained hundreds of pages. The briefs of counsel, citations of non-Connecticut cases and law review references added another 1,500 pages for the court's consideration. Multiple experts testified for each party. Faria v. Faria, 38 Conn. Supp. 37, 38, 456 A.2d 1205 (1982).

Both counsel consider a number of matters set forth in the Table of Contents to be of first impression in Connecticut and request a resolution of each of these issues. Sheff v. O'Neill, 238 Conn. 1, 88, 678 A.2d 1267 (1996) (Borden, J., dissenting) ("I can think of no other case decided by this court that will have more impact on the daily lives of our citizenry than this case.") n1

n1 This court wishes to express thanks to the following for their assistance in the preparation of this Memorandum of Decision: Villanova University, Harvard University, Princeton University, Bucknell University, Penn State University and Rose Ann Rush.

The parties early on in the case submitted their thumbnail view of the main issue.

The plaintiff: "Marriage is a partnership, and I should be entitled to 50%. I gave thirty-one years of my life. I loved the defendant. I worked hard and I was very loyal."

The defendant: "When all the media hype, feminist theory and rhetoric are put aside, this case is relatively simple and straightforward. It involves a long marriage and a large estate, the distribution of which is governed by a Connecticut statute that has been on the books for almost twenty-five (25) years."

TABLE OF CONTENTS

Trial information page 1

All statutory criteria must be considered page 46

Nonmonetary contributions of non-wage earner spouse page 52

must be considered

Nonmonetary contributions of wage earner spouse must be considered page 59

Quantification of nonmonetary contributions page 61

"Enough is Enough" is not Connecticut law page 84

Connecticut is not a community property state page 102

There is no statutory presumption of equal division regardless of the amount of resources page 108

The 1974 Equal Rights Amendment to the Connecticut constitution has not changed the equitable division standards to require a fifty-fifty division page 133

In sex discrimination claims under the state ERA,

strict scrutiny is the standard page 151

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 page 158

1. Textual approach page 162 2. Holdings and dicta of this court and the

Appellate Courts page 165

3. Federal precedent page 168 4. Sister state decisions or sibling approach page 170

5. The historical approach

A. Historical constitutional setting and debates of the framers page 178

B. Historical analysis of rights between husband and wife in Connecticut page 183

6. Economic/Sociological considerations page 209

Marriage is not a partnership in Connecticut page 224

Option vesting rules and tax code treatment of stock options are irrelevant. . . . page 235

Other jurisdictions have discussed whether stock options are distributable page 239

No reported Connecticut case deals directly with issues of "contingent resources" page 258

Statutes in Connecticut as to "vesting" are irrelevant to this court's consideration page 263

"Contingent resources" derived from employment are property for Connecticut marital distribution purposes page 270

No bright line rule can be established that all unvested employment plans are property for marital distribution purposes page 292

1. Due process definitions page 294

2. Statutory definitions page 298

3. Case law definitions page 300

4. Property definitions in Connecticut dissolution actions page 303

5. Decisions from other jurisdictions page 305 6. Effect of difficulty in valuation page 307

Other jurisdictions consider whether "contingent resources" were acquired for past, present or future services page 315

All types of "contingent resources" granted pursuant to employment should not be treated alike page 320

The GE unvested stock option and appreciation rights plan is property for marital distribution purposes page 331

The GE supplementary pension plan and retirement allowance are property for marital distribution purposes page 336

The GE restricted stock is property for marital distribution purposes page 349

Are the "contingent resources"in this case compensation for future services? page 355

The use of a "coverture factor" is a proper tool for distribution of marital property page 361

A "coverture factor" can be used to divide numerous

"contingent resources" page 368

Variables to be considered in "coverture factors" page 371

Variables used in this case to establish a "coverture factor" page 380

Tax considerations regarding stock options are relevant in dividing the assets page 385

Methods of evaluation of stock options and restricted stock page 392

Lack of a market does not prevent valuation of assets in a dissolution page 409

Both the offset and reserved jurisdiction methods are appropriate to divide certain assets in this case page 412

Distribution methods may not be the same for pensions and stock options page 420

The date of the dissolution is the date of the valuation of the assets page 423

Use of date of separation in the "coverture factor"

is proper in this case page 433

General Statutes 46b-81 and 46b-82 utilizing the criterion "needs," contains a broad definition of needs page 448

How to treat the defendant's excess income page 458

"Genius Factor" is not recognized in Connecticut. page 461

Plaintiff's nonmonetary contributions do not justify the relief sought page 465

Does the court have the power to change an irrevocable life insurance trust or in lieu thereof order the acquisition of life insurance coverage? page 470

The standards in sealing the file and/or closing trial under General Statutes 46b-11,

46b-49 & Practice Book 211B page 486

Orders page 494

TRIAL INFORMATION

The court, after hearing the evidence, finds the following facts:

The plaintiff wife, whose maiden name was Lorna Jorgenson, and the defendant husband, Gary C. Wendt, were married July 31, 1965, in Rio, Wisconsin. Both parties have resided in Connecticut for more than one year prior to the date of institution of this dissolution of marriage action. The complaint is dated December 19, 1995. There are two daughters born of this marriage. Both daughters have long since completed college. They no longer reside in the family house and are self supporting.

The defendant is the Chairman, President and Chief Executive Officer of GE Capital Services, Inc. with principal offices in Stamford, Connecticut.GE Capital Services, Inc. (GECS) is the largest division of General Electric Corporation (GE) which in turn is reported to be one of the largest corporations in the world. Early in the marriage the plaintiff earned modest wages as a public school music teacher. Throughout the entire marriage she has been a mother, homemaker and corporate wife entertaining GE customers and other business associates in various social and business settings. The plaintiff was neither employed nor paid by General Electric or GE Capital Services, Inc.

The parties were raised in a small midwestern town near Rio, in central Wisconsin. When they started dating in high school, the plaintiff was a freshman, and the defendant was a sophomore. They attended the same high school. The plaintiff was involved in debating, music, piano lessons and a church youth group. There were limited offerings in women's sports. The defendant competed and lettered in all the organized school sports. The defendant was class valedictorian and a class officer. The parties both played in the band; the plaintiff played oboe, and the defendant played trombone. They were members of a singing group. They were active in the same Lutheran church.

The defendant attended the University of Wisconsin, and the plaintiff would visit the defendant every weekend during her senior year in high school. The following year the plaintiff attended the University. The parties became engaged when the plaintiff was a junior in college.

The defendant majored in Civil Engineering and took a few business courses. The defendant was asked by a professor at the University of Wisconsin to study for an MBA at an eastern graduate school. Prior to that he had intended to return to his home town area as a highway civil engineer. The defendant's father was the owner of a local limestone grinding business. Both of his parents came from a working class background. Neither were college educated.

The plaintiff received a Bachelor of Music Degree from the University of Wisconsin and is qualified to teach public school music. Upon the plaintiff's graduation, the parties married and moved to Cambridge, Massachusetts where the defendant attended Harvard Business School. For a portion of the first year the plaintiff worked part-time at M.I.T in the industrial relations department. During the second year the plaintiff taught music in the Sudbury public school system at an annual salary of no more than $6,000. The plaintiff also gave private music lessons. The defendant's Harvard tuition was paid by his parents. During the summers the defendant worked full time for a Concord, Massachusetts land developer. The earnings from both parties and a portion of the defendant's $2,500 savings from prior employment supported the household for the two years in Cambridge. The defendant also worked part time during his second MBA year.

The parties believed that they were two little kids from a small town in Wisconsin and that it was exciting to move to a big eastern city. The parties had virtually no money. There was little social life other than seeing other students at their houses. The plaintiff did the shopping and cooking. The defendant was given assignments on Friday for completion on Monday. The plaintiff assisted the defendant by typing his papers. This required extensive weekend work for both parties.

The defendant received an MBA from Harvard after two years. At graduation all the spouses (then wives since there were no women MBA candidates) received PhTs (Putting Hubby Through). At trial the first two exhibits offered in court were copies of the defendant's MBA, Exhibit 29, and the plaintiff's PhT, Exhibit 30. Ann L. Estin, "Maintenance, Alimony and the Rehabilitation of Family Care," 71 N.C. L. Rev. 721, 757 n. 135 (1993).

The defendant's first job was for a Spring, Texas real estate developer in the Houston area. The parties had very little personal property. It took four hours for the parties to pack all their personal possessions. The parties purchased a new house from the defendant's employer for $25,000.00. The plaintiff taught public school music and kept house. A cleaning woman came once every three weeks. There were no more than six occasions for business entertainment in a year since the defendant worked for a small real estate developer.

The plaintiff stopped working as a public school music teacher shortly after the birth of their first daughter in December of 1968. This was her last job. The plaintiff continued as a part time piano teacher and church organist. The parties spent four years in Texas.

The defendant's employer merged, and the new corporation moved the Wendts to Atlanta. This move was a mutual decision. The parties had accumulated little personal property. As in all the family relocations the plaintiff arranged for a majority of the moving. The parties could not afford to purchase a house in Georgia without selling the Texas house. The defendant left, and the plaintiff stayed behind, sold the house and then moved to Georgia.

The defendant was unhappy with his new job in Georgia. The plaintiff characterized her husband as a very honest person who believed that his new boss was not trustworthy. By agreement the defendant left his job just before Christmas. The defendant took some time off to see if he could go into his own real estate business with a partner and then decided not to. While the parties lived in Georgia, there was little business entertainment and no household help.

The defendant's next job was with a real estate investment trust (REIT) headquartered in Coral Gables, Florida. The plaintiff testified that she stayed in Atlanta to put the house in order, sell it, move, look for a new house and move in. This was the parties' third house. The defendant denies that and claims that they both drove down to Florida together and he arranged for the sale of the house with the corporation paying for the packers and movers. The defendant claims that they still owned little personal property. The plaintiff planned the interior decorating. Both parties agree that they jointly decorated the Florida home, painting, papering and installing a new lawn.

The REIT job involved a number of trips each month. The plaintiff continued to be involved in their local church as an organist and choir director, as well as a mother and a homemaker. The plaintiff had no household help in Florida. The plaintiff entertained defendant's co-workers at dinners, barbecues and an occasional pool party.

The parties' second daughter was born in July 1972. The child needed extensive medical care and was admitted to hospitals multiple times during her first year. The defendant was usually traveling, but offered on a number of occasions to come back home. The defendant's job obligations had increased and became more demanding. As a result, the plaintiff did more of the homemaking and family duties.

In the early 1970's, the real estate market was poor in Florida, and, therefore, the defendant looked for another job. Both parties discussed him taking a job with GE Capital Services, Inc. in Stamford, Connecticut. The defendant got the job in July, 1975 and left for Stamford leaving the plaintiff and the two minor children in Florida. The defendant came to Florida every other weekend. The parties took joint trips to Stamford and discovered that the cost of living was extremely high. The plaintiff sold the Florida house. The parties house shopped while living in the Norwalk Holiday Inn. The plaintiff drove the oldest daughter, who was in second grade, to school in Stamford and the younger child to nursery school. The parties then bought a small fixer upper house in Stamford.

The plaintiff became involved with the children in school activities. Both parties joined a church. The plaintiff took the children to lessons, kept house, played tennis and met his business associates. The defendant travelled quite a bit. His first job was vice president of the real estate department of GE Capital, utilizing the expertise that he developed through his prior jobs in Texas, Georgia and Florida.

Both parties recognized that working for a large international corporation was a major social change. Their social life in the past revolved around church and co-workers. Now, entertainment, more formal and on a larger scale, increased to six or seven times a year. Corporate clients were included.

The defendant would discuss with the plaintiff various deals during his Texas and Georgia jobs. The defendant spoke to the plaintiff about development in Florida, including seeking suggestions of improvements in the recreational portion of a project. The wife claims that these discussions were a contribution that she made to the marriage.

Business entertainment while in GECS Real Estate Division involved small noncatered dinner parties of about 12 to 14 people. The first household help was hired in 1978. The household help would also assist at the dinner parties. Both parties would help clean up after these dinner parties.

From 1975 through 1986 a large percentage of their social and personal life revolved around family. The plaintiff was a wife, mother, homemaker and a great supporter of her husband in his life. The children were educated in the public elementary system. The plaintiff had household help once a week and no live-in help.

The plaintiff characterized herself as a "GE wife supporting her husband in every aspect of his job." The defendant was transferred from one division of GECS to another, increasing his responsibilities.Each of the divisions were in some sort of trouble prior to the defendant's new assignment. The defendant was successful in rescuing the troubled divisions. This increased his prominence in GE. Socially, the parties went out more often including business functions, dinners in New York, entertainment by executives of other GE divisions and conventions involving GE and GECS staff.

As a GE wife, she read newspapers, spoke with him about deals, assisted in business entertainment and was supportive of his executive role at General Electric. The plaintiff claims she did more than the normal "entertaining corporate wife."

The plaintiff's entertainment duties expanded with the expansion of the defendant's duties. Entertainment now involved travel. The clients might invite them to parties in New York City, out of town dinners or a golf engagement. GE executives travelled regularly; at times the trips included three to ten days away. On a number of those occasions the plaintiff would accompany the defendant, either on business trips or corporate conferences.

In 1986, shortly after the defendant became the CEO of GECS, the parties sold the first house and moved to a second house in Stamford.It was a standard four bedroom center hall colonial. In 1988 the parties bought vacant land on Erskine Road, Stamford. They built a house which they occupied in July, 1990. According to the plaintiff's appraisal, Exhibit 57, the house has 3 1/2 baths, 4 bedrooms and 5,068 square feet of gross living area above grade. In addition, there is a family room, exercise room and bathroom in the basement. No longer did the parties have time to fix up the house. The defendant was able to arrange for people to do the painting and decorating. The plaintiff hired a designer to do the interior as she had done with the second house the parties owned in Stamford. Not agreeing on the house design, they compromised. The plaintiff got a traditional front, and the defendant got a modern rear. "We both designed this house actually. The front is mine and the back is his, and that he likes contemporary glass and I like the traditional. But we somehow melded it all together." Testimony of Lorna Wendt, December 3, 1996, page 49.

After 1988 the plaintiff no longer gave piano lessons because of the demands of GE travel. Her last full-time job was in 1968 which she left just before the birth of their first child. The plaintiff has not resumed her music career.

The court concludes that up until 1986, the parties lived modestly. Their children had attended public school. Their social entertaining, although involving some business, was mainly with friends and church members. There was no live-in help, only day help once a week. They lived a refreshingly honest, modest, hardworking midwestern life, espousing and living the conservative ideals that they both had grown up with. Exhibit 31. They instilled these values in their children.

Much of the trial was devoted to various witnesses testifying about the contributions made by the parties to the marriage and GE from 1986 to date. Often the testimony of witnesses conflicted even as to certain common events. All the witnesses do agree that the wife spent considerable efforts as a wife, mother, homemaker and "GE wife" and that the husband was highly successful as the CEO of GECS. In an effort to balance the conflict in the testimony and to establish the major legal issues in this case, the testimony of certain witnesses will be reviewed.

The plaintiff claims that she is aware of the decision in O'Neill v. O'Neill, 13 Conn. App. 300,536 A.2d 978 (1988) and the courts' required consideration of nonmonetary contributions of a spouse. On cross-examination the plaintiff testified as to the amount of time that she spent on her duties. She said her job was a mother, housemaid, cook, child care provider, corporate wife and homemaker. The plaintiff described the time spent on her job as "twenty-four hours a day." There was testimony of the substantial hours each week the defendant devoted to his duties as CEO of GECS including weekends and extensive travel.

The plaintiff conceded that the defendant provided nonmonetary benefits to the family. She conceded that the defendant drove the children to camp and college, helped with homework, attended recitals and attended a number of school functions, but this was a small contribution compared to the efforts of the plaintiff's nonmonetary family contributions. The defendant testified about diaper changing, laundering and caring for the girls' various allergies and illnesses as well as the girls' college and graduate school decisions. The plaintiff conceded that essentially all the monetary contributions to the marriage were due to the defendant's work at GECS. For the last 15 years, except for the purchase of homes, the financial decisions were made by the defendant. All contact with the family accountant was by the defendant. The accountant testified that in the 15 years of doing income taxes for the parties he met the plaintiff once.

GECS has twenty-seven subsidiary divisions. The defendant's job required visits to all these divisions as well as business trips for future acquisitions. The oldest daughter was then in college and the youngest was a teenager. The defendant would travel a week to three weeks in a row, be home for a few days and leave again. The plaintiff would join him on some of these trips, often on a few days advance notice, e.g., "I need you on this California trip this week."

The oldest daughter, 28, is a graduate of a private eastern college. She attended public school, and for the last two years of secondary school, a private day school in Stamford. She is currently a graduate student at NYU, having started in September, 1996. The youngest daughter, 25, is a graduate of a private eastern college. She attended public school and for the last four years of secondary school a private day school in Stamford. She received a Masters in Human Resources from a small midwestern university in September, 1997. The defendant paid for all of their schooling.

Both of the parents are justifiably proud of the accomplishments of their two children, especially their solid midwestern values. Both parties acknowledged that the other party had made substantial contributions to these moral and family values that the two children possess. Both parties continue to maintain good relations with their daughters.

A summation of the testimony of the witnesses as to the plaintiff's nonmonetary contributions is as follows: She was an excellent representative of motherhood, very organized, a very good cook and a piano teacher for years. She did house cleaning, and "she even did windows." She paid the household bills, arranged for auto repairs and maintenance. She was a good role model for the children. Her duties included clothing, feeding, driving, music, school, conferences, church activities, clubs, lessons, kids' concerts and recitals, after school activities, car pools, doctors, being present in the house regularly, housecleaning, grocery shopping, kids' needs, kids' questions, games and school homework. She was extremely hospitable and sociable. She talked to people, remembered details about people's lives and mixed with people. She was always pleasant during home entertainment. She related to men and women alike and was a cheerleader on a number of GE trips. She was extremely neat. The children were neat, their clothes had no stains and the house was immaculate. She ironed her husband's shirts, raised two young children, entertained, sewed clothing, took the children to the doctor, attended Girl Scouts, went to school events, saw children's friends, used organizational skills and polished social skills. Guests were made to feel welcome in her house. She was a good cook. She was a member of the Lutheran Church, and both parties regularly attended with the children. She covered for her husband, i.e., gave reasons why her husband was not present at certain social events.

The court found this testimony credible. It was buttressed by a number of witnesses, including past and present GE employees. The court concludes that the above litany represents the nonmonetary contributions to the family portion of the marriage by the wife. O'Neill v. O'Neill, supra, 13 Conn. App. 311. In addition to these nonmonetary contributions to the family, the plaintiff made nonmonetary contributions to the husband's career at GECS. These contributions will be discussed separately.

The witnesses also testified that the plaintiff had to give up piano lessons due to the defendant's business requirements and the plaintiff's efforts necessary to support those requirements by traveling. From that testimony and testimony about the Pinnacle Club trips, this court concludes that it was the voluntary choice of the plaintiff to give up conducting private piano lessons and not resuming a public school teaching career so that she could go on luxury trips for GE. Any abandonment of the wife's "career" was voluntary on her part. The plaintiff has not resumed any portion of a music career since the December, 1995 separation.

A witness also testified that at the 1995 Christmas party at the parties' home, when the dissolution was in the process of being filed, the plaintiff told this witness, "I do not know how I can go through with this party because of my marital problems," and yet, she did go through with the party. The party was a success. This court, therefore, concludes that the plaintiff, although receiving the benefits of being "a corporate wife," did give the defendant's career priority in her life.

Another witness who is employed as a chief financial officer for a financial company and who worked for GE for twenty years, including two years at GECS, testified that the plaintiff set an example for GE wives. GE is a family organization tending to treat spouses and employees as a part of a team. Both parties were part of the GE team, and the witness concluded the plaintiff was a "team player."

A long term public relations specialist for GECS testified that she worked on the same floor with Gary Wendt on a daily basis, and attended business meetings and staff meetings. The witness discussed issues on deals, attended investment committee decisions and was in daily contact with Gary Wendt. The plaintiff was not present at any of these meetings or occasions. This witness left GE employment in October, 1995 and cannot testify to later events. From this testimony this court concludes that the plaintiff was not involved in the day-to-day activities of the defendant at his office. Essentially the plaintiff's direct GE contributions were: (1) discussing GE matters with the defendant at home and on trips, (2) providing support to him, (3) entertaining GE customers, associates and business guests away from home, (4) an annual home Christmas party for GE, (5) business travel with the defendant, and (6) participating in GE Pinnacle Club reward trips for GE high executives.

A number of witnesses testified concerning the defendant's business skills. The defendant is generally known as a deal maker. For example, the defendant was concerned about lending to Tiffany's, a premiere jewelry store. For the first time in the lending industry, GE loaned money secured by the name of the business. The intangible name, Tiffany, became an asset that could be loaned against. This new lending technique was developed by the defendant and has now become common in the lending field. A number of witnesses stated that the defendant's creation of leveraged buy-outs was the seminal event in the industry. It was widely publicized that GECS had done this transaction. As a result, GECS became a leader in leveraged buy-out transactions. This witness felt that Gary Wendt had an incredible depth of understanding of each and every business transaction including speculative credit matters.

As to the defendant's contribution to GECS, a witness testified that "he earned what he was paid, even though he was well compensated." The defendant claims that the success of GECS is attributable to everybody who worked for GECS. The court concludes that the defendant made the most substantial contributions of all of its employees to GECS's success.

A French representative of GECS testified that the defendant had quite a lot to do with every deal in that: (1) he knew the details, (2) he thought very rapidly, (3) he looked at the strategic side and was insightful, and (4) he could identify the leverage and the opportunity in the deal. He characterized the defendant as a "deal maker." "That's how GECS was successful, he made deals."

The defendant was and is actively involved in community affairs. The defendant created a position in the Stamford regional community as an active hands-on fund raiser. In 1989, he visited the Boys and Girls Club in Stamford at their Stillwater Avenue location. They were working out of a modular trailer. The defendant then contacted other corporate executives and set in motion a plan. A 7:30 a.m. breakfast meeting was held. This meeting and later efforts raised a substantial amount of money to construct a new facility for the Boys and Girls Club in Stamford. The defendant designed a plan to help the Stamford Public School system. The defendant was director of the Regional Planning Network of the tri-state area. He established a larger Board and created a five year plan. He was not just a director in name but an actual working director. The defendant created a "Reach Out" program for the Stamford Center For The Arts involving inner city youth.

The defendant has received the following awards: (1) 1990 The Walter Wheeler Award for SACIA for work in the Stamford public schools, (2) 1995 - The national Herbert Hoover Humanitarian Award on behalf of the Boys and Girls Club of Stamford, (3) 1996 Friends of Youth by Outward Bound, and (4) 1996 - Corporate Leader Award by the Volunteer Center of Stamford for raising 3 million dollars.

The defendant is currently involved in the community and is the 1997 Chair of the Tri-State United Way with the principal job of calling on CEO's in corporations located in New Jersey, Connecticut and New York. Tri-State is in charge of 30 separate local United Ways. The defendant is also active with University of Wisconsin fund raising and the local United Way Allocations Committee. Although he has GECS corporate assistants to aid him, he is an active participant in these corporate community services.

A witness, a former GECS executive until 1995, testified that as CEO he exceeds the bounds of leadership. The defendant was a visionary. The defendant was able to determine trends. He developed a strategic plan to put GECS into the marketplace so that GECS continued to grow. The defendant is a leader of all people, and is results oriented. According to this witness, this resulted in an average annual growth for GECS of 20% per year over a consistent ten year period with a 20% return on equity for those same ten years. The defendant was capable of speaking at meetings for over an hour without notes and was an excellent motivator of people, setting goals and strategies, and obtaining results from all his high executives.

The defendant's management style was not hands on. The defendant did not micromanage GECS. The defendant allowed his junior executives to perform on their own. The defendant had a good sense of humor. The witness said he was easy to work with in this highly charged atmosphere.

The court will now discuss some of the defendant's monetary and nonmonetary contributions. After that discussion, more details of the plaintiff's GE contributions will be referred to and then the court will draw conclusions.

When the defendant graduated from the University of Wisconsin, he intended to be a civil engineer, a road builder on the Interstate Highway system. The defendant had taken some business courses at Wisconsin. A professor asked him to consider an MBA. He did and applied to the best schools in the country. The defendant's father ran his own business which he built up from nothing. This gave the defendant inspiration. The defendant believes that this interest in small business is important in the context of what he is doing today. He wrote his MBA thesis on land development.

The defendant's first job in Texas involved selling lots. It was hard work. The defendant later became involved in the business end of land development. Six months later he was able to take over a subdivision, analyze the cash flow, and bring in new ideas and concepts in order to revitalize the subdivision. Prior to completion of this task his company was liquidated, and he was transferred to Atlanta.The defendant had no money, but he became wiser as to risk and what it meant to borrow money.

The defendant's eventual job with a Real Estate Investment Trust in Florida involved 35 to 40 employees. It was at that job that he learned that it was how well you financed that gave you an edge. The defendant learned how to do deals but still had not learned how to make money. By that time both children had been born. The defendant was earning $35,000 a year in Florida just before he started with GE Capital Services, Inc. in the summer of 1975. The defendant started in Stamford at the same $35,000. He had been married to Lorna Wendt for ten years.

The defendant testified that during their first ten years of marriage, there was no major corporate role for the plaintiff, and the plaintiff made no employment contributions. The parties lived on the defendant's salary. The defendant had a decent salary. The parties lived comfortably and were able to save approximately 20% of the defendant's earnings.

GECS had a small real estate department which had problems. This was the defendant's first assignment. In the defendant's first year he was able to earn a bonus because he did build up the business, however, not as successfully as he wished.

The defendant found that the real estate department was in much worse condition than represented. GECS had an inventory of at least a thousand unfinished and unsold Florida condominiums. Even though there was no market for Florida condominiums, he convinced GECS to finish all the units. The market came back. The GECS condos, first on the market, sold. In six months he was made manager of the real estate department. The parties purchased their first house in Stamford in the $77,000 price range.

Previously, GECS had only been a lender. It usually sold off most of the closed loans. The defendant became involved in the Houston Astrodome refinancing and recommended that GECS participate more actively in the equity side of the transaction. The defendant ran the real estate division as a business and obtained a positive cash flow. According to his testimony, "he took action, he took measured risks."

In 1978 the defendant became the head of the larger Leasing and Industrial Loan Department. The defendant became involved in complex airplane leasing and other leveraged transactions. In 1981 the defendant was appointed manager of Commercial and Industrial Loans. The 1981 tax code change was good for business. After 1981, leasing was used to create tax benefits. The defendant was successful. The defendant then started to look for companies that managed assets and not just companies that were interested only in borrowing money from GECS. The defendant testified that "when you make money at GE, you get noticed." In 1984, he was promoted to Chief Operating Officer of GECS. In 1985, the defendant became President and Chief Executive Officer of GE Capital Services, Inc.

The last full year before he became the Chief Executive Officer, the GE 1983 Annual Report stated, "GECC earnings increased 32% to $271 million and net earning assets grew 12% to $13.5 billion in 1983. The nation's largest diversified financial services and leasing company, GECC . . . ." Exhibit 109, Page 10 (Note: General Electric Credit Corporation, GECC, was apparently the former name of General Electric Capital Services, Inc., GECS). The 1995 GE Annual Report stated, "In 1995, we again registered a double-digit rise in earnings - up 16% to a record $2.4 billion." Exhibit 95, Tab 3, Page 40.

The 1996 draft annual report of General Electric Corporation was offered into evidence. It had not yet been published. This was a very unusual report. It was the first time that GE was treated as one corporation, divided into Product Service and Media Business, and GECS was treated as a second separate corporation, all in one annual report. Exhibit 110. Letters to shareholders, page 3. "Earnings reached another record: 2.8 Billion, up 17% or 400 million - from 1995 levels." Exhibit 110.

It appears from these exhibits that GECS was a small but growing part of a very large company in 1983. It appears that GECS was a large but growing part of a very large company in 1996. In documents the defendant submitted into evidence he was quoted as saying "that any award must be shared by many." The defendant also said in his last annual meeting with GECS executives, "We must lead. We must be the best, you must be the best you can be, but this year I want you to make sure that all your people can be the best they can be." Exhibit 111. The defendant testified that this is his leadership style. The growth at GECS demonstrates the results of this 12 year leadership. GECS earnings increased from $271,000,000 in 1983 to $2,817,000,000 in 1996,a ten fold increase. This is approximately 20% compounded annual growth for the last 13 years. In 1983, GECS was responsible for slightly more than 13% of GE's net earnings, and in 1996, that percentage grew to slightly less than 39%. Exhibit 109, Page 43, Exhibit 110, last page.

The defendant did testify concerning his view of the testimony of the plaintiff concerning her duties as "corporate wife." The defendant said that there were only a few dinner parties and that on a number of occasions the plaintiff objected to giving those dinner parties. It was only in the last five years that there were high level executives at the annual corporate Christmas party in their home. All of these parties were prepared by caterers with the assistance of the GECS staff. The plaintiff testified that she baby sat for the Singhs, an Indian client, while the defendant was playing golf. The defendant said that this was a one time event and she did not baby sit for any other clients. The plaintiff never packed a bag for him when he was going on a trip. She never made him breakfast. In the last five to seven years she paid the household bills. For the first twenty-five years he paid all the household bills. He did all the household financial planning throughout the entire marriage.

The defendant testified that the plaintiff was a good mother and a good wife. The plaintiff traveled with the defendant on a small number of business trips, however, only when she wanted to. These were a small percentage of the defendant's business trips. The plaintiff would always travel on the Pinnacle Club trips. The defendant's testimony did not denigrate any of the positive efforts the plaintiff made for the betterment of the Wendt family. The defendant acknowledged that she was a good mother and a good wife. The defendant was only commenting that she made little, if any, efforts that are attributable to the success of GECS.

After the first few years that the defendant was CEO of GECS, the defendant started to travel extensively. At first, as CEO, travel was for a day or two, then home, and then fly to the next meeting. He would do this at least two or three times per month. Sometimes there was international travel which involved one to three weeks away from home. On some of these trips the plaintiff accompanied him. During this period of time the plaintiff took care of the children. They then started to use a sitter service. In 1986, the oldest daughter went to college so minimal help was needed for the fourteen year old daughter while both parties travelled. Generally the plaintiff would require a week or so advance notice of these various trips. On some occasions the notice was much shorter.

The plaintiff testified that she had travelled to at least forty countries with the defendant as CEO. A number of these trips were on the GE corporate jet in the United States. Generally, commercial airlines were used for traveling abroad. There were three types of GE trips: (1) business, (2) Pinnacle Club reward, and (3) combination business and Pinnacle Club inspection.

The plaintiff would also attend an annual luncheon given for GE wives. The plaintiff would discuss the wife's general role. The GE luncheon was given at the GECS executive dining room on Long Ridge Road, Stamford. These dinners were planned, presented and arranged by the Human Resources Department of GE, including Angelo Astone.

The defendant was active in civic affairs. On a number of occasions he was honored at various dinners which the plaintiff attended. The plaintiff had entertainment obligations at those civic affairs dinners.

The entertainment became more formal when they moved to Erskine Road, and it was a policy to have two large annual Christmas parties. One was a black tie Christmas party with over one hundred people attending. A caterer was hired by GE for the party. The plaintiff helped the caterer. The defendant wanted to have his employees and GE guests treated with dignity. On many occasions there was a pianist and a harpist, and on one occasion, the 1994 Christmas party, Marvin Hamlisch entertained the guests. This was a first class Christmas party. A second annual Christmas party was usually given. It was less formal, generally a social occasion for the Wendts' personal friends, some of whom were associated with GE. Again, a caterer was hired. This once a year dinner was of benefit to the defendant's career.

The house was designed by the plaintiff and the defendant for entertaining. The court examined Exhibit 39, a fifteen minute video of the interior and exterior of the 328 Erskine Road home, a split level with a two level foyer. The rear of the house is three levels. The court examined the decorations, furniture and furnishings. The video showed the interior and the exterior. The exterior improvements included multiple rear decks, a formal entrance with a circular driveway, a swimming pool and extensive landscaping.

The plaintiff served on the boards for the Stamford Symphony and the Center For The Arts. This was a valuable contribution to the defendant's career and community standing. The parties were active in their church. Many of those connected with these groups were guests at the second Christmas party.

On business trips the plaintiff read from a 7-10 page trip folder prepared by GECS. By this method the plaintiff would become familiar with the purpose of the trip. The defendant testified that the plaintiff read it only when she was on the plane. The plaintiff did not dispute that fact. It appears to the court that there was not a substantial amount of advance knowledge or planning by the plaintiff for these GE trips except for the Pinnacle Club reward trips. This is buttressed by Exhibit 41, a seven page trip itinerary for a business trip to Central Europe in which both parties participated. Numerous options and suggestions were made by the GE employee responsible for the trip. The only changes were handwritten notes made only by the defendant. The only reference in Exhibit 41 to the plaintiff's contribution to the planning for that trip was at the end: "P.S. In response to Lorna's request she can dress quite casually for the tours. It is going to be hot." Exhibit 41, Page 3.

At many of the business social occasions, the plaintiff and the defendant would not be seated at the same table. The plaintiff would then carry on a conversation as to the nature of the GE deal with those at her table. The plaintiff felt that she was a corporate officer wife. She testified that she became familiar with the deal and the background information in order to do her job. The plaintiff was never hired by GE to speak or be familiar with any GE business. The plaintiff was never paid by GE. The plaintiff was never on a corporate payroll. The plaintiff was never briefed at GE headquarters. The plaintiff did not attend GE meetings except for occasional ones related to Pinnacle Club trips. It appears from the evidence, including the examination of a three page list of trips for 1993 through 1995, (Exhibit 32) that the plaintiff and the defendant never really took a pure personal vacation except to visit their parents.It appears to this court that although the trips were of a lavish style, they were paid for by GE and not by the parties. Exhibit 32 contains all the GECS business trips, GE Pinnacle Club or Pinnacle Club inspection trips for 1993-1995 in which the plaintiff participated. In 1993, the trips were to Florida, Central Europe, California twice, Arizona, London, Scandinavia, India and Asia. In 1994, the trips were to Northern Europe twice, Florida, Singapore, California, India, the Mediterranean and Asia. In 1995, the trips were to Australia, California, China, Florida, MidAtlantic states, Rome, Bermuda and Eastern Europe. It appears the annual Pinnacle Club reward trip for each of these three years was to Scandinavia (1993), India (1994) and Rome (1995). The remainder were business trips. The 1993 trip to India was an inspection trip for the Pinnacle Club trip for the following year. The 1994 Mediterranean trip was an inspection trip for the 1995 Rome Pinnacle Club trip. The 1995 China trip was an inspection trip for the 1996 Pinnacle Club trip.

The Pinnacle Club trip was a reward for top performing GECS management. Top management and their significant others would be invited on the Pinnacle Club trip. Angelo Astone, who managed the Pinnacle Club program, said that their purpose was to "reward the GECS employee." He has said to awardees, "Your spouse actually contributed to the success you had, we want to reward both of you." These were luxury trips with more than 100 people in attendance. The plaintiff did go on most of these Pinnacle Club trips in which she was always designated as part of "a host couple." She claims that she was the ultimate hostess. The plaintiff claims she was present to correct any errors, to include all people in the trip activities and to be informed as to the terms and conditions of the trip so that she could be of assistance. However, there was a full professional travel staff from GECS and local tour guides present throughout all of these Pinnacle Club trips. The day-to-day travel and planning functions were not taken care of by the plaintiff or the defendant, but were handled by the GECS staff and their local representatives. Mr. Astone testified that the plaintiff, as the wife of the CEO, had no defined role on the Pinnacle Club trips. Mr. Astone liked to have the plaintiff on Pinnacle Club trips. She was a great shopper. She knew which area had better shopping opportunities and a group would be sent there on free time. Mr. Astone offered no other evidence of contributions made by the plaintiff to GECS, either at home or abroad.

A witness testified about four separate Pinnacle Club trips to (1) Egypt; (2) Greece and Turkey; (3) Singapore, Bali, Malaysia and Vietnam; and (4) Italy Sea Goddess Cruise including Rome. The witness saw first hand the efforts that the plaintiff and the defendant made as "host couple." The witness said that the plaintiff was congenial, outgoing to others, attended cocktail parties and dinners, went on tours and shopping trips, and circulated on these Pinnacle Club trips. Those Pinnacle Club trips were organized and cared for on a day-to-day basis by GE staff as well as the outside staff at the various locations. The trip was fully staffed and any planning involving the luggage, transfer, tickets, local transportation, meals, plane tickets and lost luggage was taken care of by outside staff. The plaintiff and defendant acted only as social hosts. There was no business conducted on these Pinnacle Club trips.

More than 10% of the GE employees on the Pinnacle Club trips were designated as "hosts." For example, 199 participated in the 1995 Pinnacle Club trip and of these, 30 were designated as "hosts." The defendant, as CEO, was always designated as a "host." According to Angelo Astone, the spouse of a "host" had to attend all functions and events along with the host. The spouse had no duties other than to be social. Mr. Astone acknowledged that the plaintiff performed her host functions.

Mr. Astone arranged the Pinnacle Club trips with the assistance of Carlson Marketing, a Minneapolis travel consultant. He asked Carlson to contact local tour companies called "ground suppliers." He then had numerous meetings with Carlson. A trip outline called a grid would be compiled before either of the parties were contacted. Then Mr. Astone would go on his own inspection trip. Any corrections in the trip would be made after consulting with Carlson and the ground suppliers. He would plan another inspection trip with the travel staff of GECS, usually in conjunction with a business trip for the defendant. The plaintiff, defendant, Astone and one other GECS executive would travel on this combined business/Pinnacle Club inspection trip. The purpose was to look at what Astone, Carlson and the ground suppliers had arranged. The defendant would do business on the trip. Mr. Astone never reviewed the Pinnacle Club trip grid with the plaintiff, however, he reviewed it with dozens of GECS people.

On some occasions the plaintiff made a suggestion or two about hotel amenities. Other than shopping locations, Mr. Astone never made a substantial Pinnacle Club trip change based on the plaintiff's suggestions. The last Pinnacle Club inspection trip the plaintiff attended was the trip to China in 1995. She recommended that the day long Li River cruise portion of the trip be excluded. She did not go on the 1996 China Pinnacle Club trip because the parties were then separated. There was no evidence that the Li River cruise was cancelled. Mr. Astone testified that he never met with the plaintiff to discuss the trips nor did he meet her anywhere else other than the occasional time she would casually stop by his office when she was in the building visiting the defendant.

On the Pinnacle Trips 12-17 tour guides were always available to satisfy the concerns and needs of the participants. They ran everything associated with the trip. The hosts and their spouses had to: (1) go on the tours, (2) attend meals, and (3) have a good time. There were no meetings, lectures, business conferences or seminars at the Pinnacle Club. Shortly before the Pinnacle Club trip, Mr. Astone arranged for a luncheon at the corporate headquarters for the spouses of the "hosts" to review the upcoming trip. The plaintiff always attended. Mr. Astone would conduct the program, not the plaintiff.

A substantial amount of evidence was offered concerning the June, 1995 Pinnacle Club trip which was a combination Mediterranean land/sea trip. Brochures were prepared by GECS. The plaintiff had suggested some different lunch locations and some daily trips. Consequently, the brochure was changed. There had been an inspection trip the year before on which the plaintiff had traveled. The 1995 brochure was offered as Exhibit 33. As a "host" it was the parties' job to make sure the others had a good time. The plaintiff testified that she would informally advise people what was going to be seen on the tour and assist them on their "free time." Although most meals were arranged on a group basis, the plaintiff testified that she would advise as to restaurants to use for "free time." Exhibit 33 also shows that the plaintiff did not always perform these duties as a "host." When the ship was docked at Sorrento for the late afternoon and evening and the brochure invited the guests "to enjoy a bit more of Sorrento," the plaintiff was not in Sorrento assisting the guests, but was on board. She received aromatherapy at 4:30 p.m. and had her hair done at 5:30 p.m. even though there was nothing special planned for the evening. The following day after a morning in Capri, the plaintiff enjoyed a facial and massage on board at 3:00 p.m. and had her hair done at 5:00 p.m.

Exhibit 33 notes that where both the employee and spouse are designated as "Hosts," two asterisks would be after their names. Yet, in Exhibit 33 there was only one asterisk next to Gary and Lorna Wendt's name. Apparently, on this 1995 Pinnacle Club trip she was not designated as a host. In 1994 the plaintiff was also not designated on a GE Pinnacle Club report as "host," just the defendant. Exhibit 87.

A substantial amount of photographs of this trip were offered by the plaintiff to support her claim of nonmonetary contributions. They included a formal dinner at the Monte Carlo Sporting Club, Exhibit 35 ; an informal dinner in a castle, outside of Florence, Exhibit 36 (5 photographs); as well as a photograph of side trips, Exhibit 37 (3 photographs). The plaintiff testified that she was also part of the administration of a GECS bicycle trip in southern France, biking from hotel to chateau along the Dordogne River Valley. She offered the French itinerary, Exhibit 42, and a number of other documents to buttress her position that she performed administrative duties.

A French witness came to the trial and testified that the plaintiff had nothing to do with the organization of the French bicycle trip. There were five couples from the U.S. and four French couples on the trip. They were serviced by four vans and seven staff members along with "Terres D'Aventure," the French bicycle tour company. A number of the guests were unable to ride bikes and rode in the vans. The witness testified that the trip was somewhat of a failure. A number of the individuals could not complete the bicycle trip and had to travel in the vans. The plaintiff did not perform administrative functions. Administrative matters were taken care of by French and U.S. GECS employees as well as the bicycle tour representatives.

This court concludes from all the testimony as to the plaintiff's involvement in the Pinnacle Club trips that she was one of a number of "hosts" and as a corporate wife her functions were minimal. They were of a social, not a business nature. The court concludes that any attempt to show that she performed some supervisory or administrative role during the Pinnacle Club trips is an exaggeration.

Testimony was furnished about the plaintiff's contributions on strictly business trips. Exhibit 44 is a photograph of a Krakow, Poland bank that GECS was apparently trying to degovernmentalize and acquire. Although the plaintiff tried to show that she had some intimate knowledge of this business transaction, this knowledge was limited to the showing of the photograph which occurred on an August, 1995 inspection trip through the central European countries. Exhibits 42 and 43 may furnish some explanation for that fact. While the defendant had meetings and lunches with the Polish Ministry of Finance, a representative of the Polish Center Bank, the President of the Gdansk Solidarity Bank and other executives, the plaintiff had a 15 minute tour of the city, watched a 20 minute movie in the historical museum and spent from 9:30 a.m. to 1:00 p.m. shopping.

There was extensive testimony and documentation concerning a business trip from October 29th to November 10th, 1994 through Japan, China, India and Hong Kong. Exhibit 45, a detailed itinerary, illustrated the obligations of each of the individuals. In each country there was a local representative of GE present. GE travel representatives also went on the trip. There were meetings with other GE wives at a luncheon as well as separate sightseeing tours for the wives supervised by the GE local representatives. Generally, during this business trip, the plaintiff was either hosted by a local GE wife or by a client's wife. On some evenings clients would be entertained at dinner. Exhibit 45 does disclose dozens of meetings, conferences and presentations attended by the defendant. The plaintiff was not included in the itinerary except for air travel and the occasional dinner.

The last GECS trip taken by the plaintiff was a combination business/Pinnacle Club inspection trip to China and Southeast Asia. The trip stated on October 7, 1995 in Beijing and ended on October 18, 1995 in Bangkok. A seven page detailed itinerary was offered as Exhibit 40 entitled "Mr. and Mrs. Gary Wendt and Mr. and Mrs. Denis Nayden, Asian Visit, October 7-18, 1995." The two men were GE employees and the two women were GECS wives. Mrs. Nayden, wife of Denis Nayden, President of GECS, is included in virtually the entire trip: (1) she flew with the defendant and her husband on the same plane. The plaintiff arrived separately two days later; (2) she conducted the Pinnacle inspection tour with Angelo Astone of GECS and a representative of Carlson without the plaintiff; (3) she attended the GECS Beijing dinner at the China World Hotel with her husband, the defendant and the GE Capital Beijing staff without the plaintiff; (4) all four then went on a day trip to inspect Xian for the 1996 Pinnacle Club trip; (5) neither she nor the plaintiff were involved in any activities nor did they attend the business meeting in Guilin. No local GE representatives were with the wives; (6) all four went on a day trip on the Li River inspection cruise for the 1996 Pinnacle Club trip; (7) neither she nor the plaintiff were involved in any activities in Hong Kong until a barbecue dinner the second night with GECS professional staff and spouses; and (8) the two women flew home from Hong Kong while the men continued to Jakarta and Bangkok for business. No Pinnacle Club inspections occurred in Indonesia or Thailand and therefore the court concludes that only China and Hong Kong were included in the 1996 Pinnacle Club trip. Exhibit 40 demonstrates the minimal involvement the plaintiff had on this trip. Except for the two Pinnacle Club inspection tours to Xian and the Li River and the October 4, 1997 barbecue with GE Capital staff and spouses, the plaintiff appeared to have played no GE role in this trip. Angelo Astone of GECS was on the trip for the inspection of Beijing, Xian and Li River. The plaintiff's dinners were scheduled in Exhibit 40 as "Dinner on own - Mr. and Mrs. Wendt." After concluding his business in Bangkok, the defendant immediately flew to Europe.

After a business trip, letters of thanks were written by the defendant discussing some portion of the business deal. Exhibit 51. The letters were prepared by GECS and signed by the defendant. The letters generally began "Lorna and I would like to thank you . . . ." The letters generally ended, "Lorna and I want to thank you for your gracious hospitality." In the middle of the letter there was discussion of a business matter that had been discussed at the dinner and the events surrounding the dinner. Therefore, it appears from these letters that the discussions that occurred at these business affairs were important to GE. It was important too that the GE wives be present. The plaintiff was not only included but was able to make conversation about the deal. Both the defendant and GE benefitted from the plaintiff's participation in this portion of the business done on these foreign trips. GE paid for the expenses of the parties on all these trips.

The court inspected Exhibit 49 labeled a typical travel folder containing "deal" information. The plaintiff would become familiar with these facts on the airplane trip and not before. This folder showed the itinerary, local culture, history, the background of the deal to be discussed, facts to refresh the defendant's memory and some minimal cultural information, i.e., status of women, the climate, and who the Wendts would be sitting next to at various meetings. These meal guests could include a finance minister or the president of a local bank. This travel folder contained three pages of itinerary along with a ten page memo prepared for the defendant's review by the local GE area representative. Plaintiff did not prepare any of these trip itineraries. She did assist in an occasional change of a Pinnacle Club itinerary after an inspection trip. There was no evidence of any correspondence between GECS local representatives, local business people or their spouses, and the plaintiff.

The ten page business summary is fact intensive and is couched in language which assumes prior knowledge of sophisticated foreign financial markets. At no time did the plaintiff offer any testimony to convince this court that she had any intimate knowledge of the "deals." Even a cursory reading of Exhibit 49 could not possibly make the reader conversant with the terms of the "deal." Despite offering at least a dozen exhibits relating to business trips in which the plaintiff participated, there was no testimony from any witness, including the plaintiff, of her knowledge of the business conducted on the trip. A number of post travel thank you letters were offered. Each one was addressed to the plaintiff and the defendant at GECS headquarters. The plaintiff offered these letters to show that she was involved in the transactions, but in fact they proved the opposite.

The plaintiff also believed that as part of her duties she had to be familiar with Business Week, Fortune and The Wall Street Journal. The plaintiff also read corporate annual statements. There was no testimony to indicate with what frequency she read business publications. The plaintiff did not testify as to any specific facts gleaned from those sources.

There was no indication from these documents whatsoever that the plaintiff negotiated the deals, assisted with the negotiations of the deals or furnished ideas for the betterment of GE. There was every indication that she was knowledgeable about the countries, knowledgeable about the people she was going to meet, the local GE employees and clients's families, and had sufficient knowledge of the business deals to be able to participate in a conversation.

In 1992 the parties made a joint decision to create the Wendt Family Charitable Foundation. Exhibit 88. The parties are co-trustees and as such signed the trust agreement. At the end of each year the Foundation approves the donations to various charities. The donation decisions are joint. It was also a joint decision as to the amount of money that would be put into the Foundation. The defendant is the grantor. There is no evidence that the plaintiff denoted money to the Foundation. The defendant's last gift to the Wendt Family Foundation was $50,000 on December 29, 1996.

On cross-examination the plaintiff revealed that she did not know the amount of the initial contribution. The plaintiff did not know the specific tax benefits or the purposes of the Foundation. The plaintiff had some idea of the charities supported, e.g., a gift to the University of Wisconsin on the defendant's twenty-fifth reunion, a twenty-fifth reunion gift to Harvard University, a major gift to the Stamford Boys and Girls Club, some local charities, their church and the American Heart Fund. Even though the plaintiff is a co-trustee, she had no knowledge as to the amount received or spent, or whether or not the funds were given from principal or interest or a combination thereof.

In discussing her Claims for Relief on direct examination, the plaintiff justified her claim for half of all the assets of the marriage on the following basis: "Marriage is a partnership, and I should be entitled to 50%. I gave thirty-one years of my life. I loved the defendant. I worked hard and I was very loyal." The plaintiff breaks down this claim into the following categories:

1. Length of marriage

2. Length of relationship

3. Emotional support

4. Abandonment of plaintiff's career

5. Her career as a GE wife

6. Marriage is a partnership

7. Raising the children

8. Providing a household

The plaintiff is aware that Connecticut is not a community property state. The plaintiff is also aware that in past Connecticut dissolution cases involving long term marriages and large assets the wife has not been awarded half. The plaintiff responds to this by saying that Connecticut is an equitable distribution state, and she feels that she is entitled to an equal division of the assets upon the considerations mentioned above.

The plaintiff also desired that the media be aware of this case. The less than 50% division concept in a dissolution is "foreign to her." The plaintiff felt incensed by this and "was hopping mad." The plaintiff believed "a woman's worth has value, a corporate wife has value, and she wants the public to know about it." The plaintiff denies that she is using the press to force Gary Wendt into a settlement.

The plaintiff also claims that she is aware of dissolution decisions in Connecticut, with assets between $2 to $5 million, where the courts routinely divide the assets 50-50 to corporate wives in long term marriages. The plaintiff believes that these decisions are incorrect, and that those women should be entitled to more than half.

On cross-examination the plaintiff testified that there was no evidence either in testimony or in any documents, that she prepared, signed or was referred to as the preparer of any document relating to any business transaction whatsoever with GECS. This included any correspondence or thank you letters for people she met on GECS trips. The plaintiff does concede that she made no financial contribution to the acquisition of any of the current assets of the parties. The defendant testified that he was "virtually responsible for the creation and value of the assets." The plaintiff claims that she did make nonmonetary family contributions. She states that the only financial help she made to the family were modest contributions while in Boston, her teaching in the first year at public school in music and part-time private music lessons. She admits that her parents paid for her education at the University of Wisconsin and that the defendant's parents paid for his education at the University of Wisconsin and at Harvard University.

The plaintiff's first full-time job was in January, 1966 at MIT in the industrial relations department. She worked full-time as a music teacher in the Sudbury, Massachusetts public school system, and part time teaching piano and as a church organist. The only other source of money that the plaintiff received during the marriage was an inheritance from her mother in 1981 in the approximate amount of $10,000. This is still invested in savings held as a current asset in the plaintiff's name, as shown in her financial affidavit. The defendant also received a family inheritance of an unknown amount. Neither party received any gifts during the marriage.

The plaintiff described her personal lifestyle as "absolutely first class." Substantial amounts of money, in the tens of thousands of dollars, were spent by the wife in 1996 in fine restaurants in Stamford and New York, a 1996 trip to Africa, an expensive trip to Antarctic, a trip to Canyon Ranch in Arizona with her son-in-law and daughter, trips to the theater in New York, and lunch or dinner three to four times a week. The African trip planned in December of 1996, cost $70,487.50, Exhibit 60. She paid for a number of friends, some of whom testified on her behalf.

The evidence seems to indicate the following for the lifestyle prior to 1996. The dissolution complaint was filed in December, 1995. There was no yacht, no second home, no live-in help, no help other than the cleaning lady three times a week in 1996 at $63 a day, no chauffeur, no cook and no expensive hobbies. The plaintiff plays tennis and music, sings and serves on boards, plays bridge and does needlework and sewing. There were modest club expenses. She is not a collector of rare things, antiques or art work nor is the defendant. There is no wine or rare book collection. The worth of the furnishings in the house is a modest $125,000. The children attended public school although the plaintiff and the defendant travelled in a luxurious style paid by GECS. They built a lavish house for some minimum in-house entertaining. All in all, throughout the thirty-one years of marriage, the parties lived a modest, conservative lifestyle.

Their lifestyle for many, many years was quite modest, and only recently, since the separation, has the plaintiff's lifestyle increased substantially. For example, there was no indication that the parties ever gave money to friends or spent lavishly on friends, the equivalent of which the plaintiff did by spending $70,000 on the 1996 African trip.

The plaintiff claims that the largest amount of earnings she made was $6,027 per year in the mid 1960's as a music teacher. When asked if the defendant ever asked the plaintiff not to pursue her music career, the plaintiff answered, "I don't remember." There was insufficient information to indicate what the plaintiff's current earnings would be as a music teacher if she continued on with her career. The plaintiff offered an expert witness to support her claim that she is entitled to a substantial distribution in the tens of millions of dollars by reason of giving up her career as a public school music teacher.

The defendant receives a substantial salary and bonus as CEO. He receives "dividend equivalents" on his restricted GE stock. In addition, he is provided a number of other valuable benefits by GE at no cost: travel,the use of a car and driver, security system and its monthly payments, new GE appliances every two years, 45% discount rights on Macy's credit card and an insured automobile lease. The court concludes that the defendant's earnings are more than adequate to pay for the sums set forth in the expense section of each party's financial affidavit. The defendant has excess income.

The defendant received an inheritance from his father's estate in an unknown amount. He did not receive substantial gifts from any source. The defendant came to the marriage with savings of $2,500. The wife came to the marriage with no money and received a $10,000 inheritance in 1981. Therefore, the court concludes that substantially all the assets of the parties were acquired through the defendant's employment and the investment of the net proceeds from his employment. The assets have appreciated over time. The principal holding of the parties is in various investments in General Electric Corporation common stock. It is impossible to determine the exact number of shares of GE stock since they are in various forms: vested stock options, unvested stock options, GE stock holdings, mutual funds and pension plans.

The parties separated on December 1, 1995. The complaint was dated December 19, 1995. GE stock traded on the New York Stock Exchange on that date at $72 per share. The court takes judicial notice that on May 12, 1997 GE stock split two for one. Therefore, the number of shares doubled and the published price decreased by half. GE stock traded on the New York Stock Exchange on November 21, 1997 at $72 per share. From December 1, 1995 through November 21, 1997 the value of General Electric Corporation common stock has doubled.

An accurate financial affidavit is required to be filed at the time of a dissolution of marriage. Practice Book 463. The affidavit, as filed, will be relied on by the court in establishing the appropriate financial orders. An award based on unsubstantiated financial information cannot be supported. Friedman v. Friedman, 180 Conn. 132, 137, 429 A.2d 823 (1980). The concealing of financial items from the court is contrary to public policy and in some cases can amount to fraud. Baker v. Baker, 187 Conn. 315, 321, 445 A.2d 912 (1982). The filing of inaccurate and misleading financial affidavits can result in the court's decision being set aside. Id.,323. The high standards of disclosure of relevant facts to a court led the Chief Justice to delineate what has been informally known as the "Monroe Doctrine" in family cases. "It may well be time to reconsider the role that lawyers and judges play in the matrimonial cases that appear in ever-increasing numbers before the courts." Monroe v. Monroe, 177 Conn. 173, 182, 413 A.2d 819 (1979). "We should recognize, therefore, that lawyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client's rights and interests." Id., 183.

This court is of the opinion that the defendant's November 24, 1996 financial affidavit does not disclose all the material items necessary to a resolution of this case. Four monetary resources were not reflected in his affidavit. In fairness, it is the defendant's legal position that these are "contingent resources" and as such are "mere expectancies," thus not property for marital distribution purposes. Although that is clearly an issue of first impression in Connecticut, the fact remains that the resources have already been awarded to the defendant by GE. He should have included each of the contingent resources in his financial affidavit with the appropriate footnote indicating his legal position that they have no value and are not property.

The plaintiff was not deprived of information about these "contingent resources." They were set forth in detail in Exhibits 61, 62 and 70, as well as in detail in the March, 1996 Exhibit 63 prepared by the defendant's accountant. The plaintiff had sufficient pretrial access to that information. She hired an expert who placed a value on the items. The plaintiff had sufficient notice prior to trial to be able to prepare an extensive memorandum of law regarding her claim that each of the four "contingent resources" were in fact property for marital distribution purposes.

These four "contingent resources" also changed during the trial and updated information by the defendant was furnished. The GE Long Term Incentive Program was concluded on December 31, 1996, after the trial began, and was paid to the defendant in February, 1997 before the trial concluded. There was testimony from a number of witnesses on the three remaining contingent resources: (1) GE Restricted Stock Units, (2) GE Unvested Stock Options and Appreciation Rights, and (3) GE Supplemental Pension and Retirement Allowance. This court, therefore, has sufficient information upon which to base its decision despite the incompleteness of the defendant's November 24, 1996 financial affidavit.

The parties entered into various oral stipulations of facts throughout the trial. The parties stipulated that the defendant's ability to acquire future income and assets is greater than that of the plaintiff's whether it be with GE or any other entity. The parties also stipulated that GE and GECS had a good year in 1995 and 1996 and that the defendant is doing a good job as CEO at GECS, managing its 27 businesses and 53,000 employees.

ALL STATUTORY CRITERIA MUST BE CONSIDERED

Connecticut is an equitable distribution state. "Dissolution of marriage is a creature of statute." Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989); See also Bratz v. Bratz, 4 Conn. App. 504, 507, 495 A.2d 292 (1985). By case law Connecticut has been determined to have an "'all-property' equitable distribution scheme." Krafick v. Krafick, 234 Conn. 783, 792,663 A.2d 365 (1995). The term "estate" in our equitable distribution scheme permits a court to divide all assets and all liabilities. "In this context, the 'estate' of the parties, as referred to in the statute, comprehends the aggregate of the property and liabilities of each." Schmidt v. Schmidt, 180 Conn. 184, 192, 429 A.2d 470 (1980); see also North v. North, 183 Conn. 35, 39, 438 A.2d 807 (1981) (property acquired by inheritance may be assigned under General Statutes 46b-81); Watson v. Watson, 221 Conn. 698, 712, 607 A.2d 383 (1992) (real property acquired by gifts from one party's relatives may be assigned under General Statutes 46b-81). "Some states permit courts to divide all property owned by either or both spouses at divorce. I have referred to such systems as 'kitchen sink' systems. . . . This is sometimes referred to as a 'hotchpot' system. Most states permit the divorce court to divide only certain types of property owned by spouses at divorce; property accumulated before marriage, or that acquired by one spouse during marriage by gift or inheritance, is not divisible. . . . These 'marital property' states permit a divorce court to divide such property equitably, not equally. Although some states provide that equal division of marital property is presumptively equitable, no state requires an equal division." J. T. Oldham, "Putting Assunder in the 1990's," 80 Cal. L. Rev. 1132 n. 4. (July, 1992) (book review). Connecticut is an "all-property," "kitchen sink," and "hotchpot" system.

Since the parties' children are above the age of majority, the financial issues in this case are periodic alimony and the division of property. In Connecticut, both orders of the court are controlled by statute. General Statutes 46b-81 and 46b-82.

The court is "not obligated to make express findings on each of these statutory considerations." Dubicki v. Dubicki, 186 Conn. 709, 716, 443 A.2d 1268 (1982). The purpose of alimony is to meet one's continuing duty to support. Wood v. Wood, 165 Conn. 777, 784, 345 A.2d 5 (1974). "The purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his." (Internal quotation marks omitted.) Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982); Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); Rubin v. Rubin, 204 Conn. 224, 228,527 A.2d 1184 (1987). "The power of a court to transfer property from one spouse to the other must rest upon an enabling statute. See Connolly v. Connolly, 191 Conn. 468, 476, 464 A.2d 837 (1983); Valante v. Valante, 180 Conn. 528, 532, 429 A.2d 964 (1980). . . . Authority in Connecticut for such a transfer of property is found in General Statutes 46b-81 . . . .'" (citations omitted.) Rubin v. Rubin, supra, 229.

For years the cases have stated the following direction to trial judges in considering periodic alimony and division of property; "Although the court is required to consider the statutory criteria . . . no single criterion is preferred over all the others. In weighing the factors in a given case the court is not required to give equal weight to each of the specified items. Nevertheless, it is rather obvious that in making financial determinations the financial circumstances, both actual and potential, are entitled to great weight." (Citation omitted.) Valante v. Valante, supra, 180 Conn. 530-31; Watson v. Watson, supra, 221 Conn. 710-11. "The court must consider all of these criteria. . . . It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express findings as to each statutory factor. 'A ritualistic rendition of each and every statutory element would serve no useful purpose.'" (Citation omitted.) Caffe v. Caffe, 240 Conn. 79, 82-83, 689 A.2d 468 (1997).

The statute setting forth the criteria for the assignment, transfer and division of property is General Statutes 46b-81(c).

In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

General Statutes 46b-81(c).

Breaking down General Statutes 46b-81(c)there are eighteen criteria regarding the division of property:

1. Length of the marriage

2. Causes for dissolution

3. Age

4. Health

5. Station

6. Occupation

7. Amount of Income

8. Sources of Income

9. Vocational skills

10. Employability

11. Estate

12. Liabilities

13. Needs

14. Opportunity for future acquisition of capital

15. Opportunity for future acquisition of income

16. Contribution in the acquisition in value of their respective estates

17. Contribution in the preservation in value of their respective estates

18. Contribution in the appreciation in value of their respective estates

Statutory criteria concerning the awarding of periodic alimony is contained in General Statutes 46b-82.

In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.

General Statutes 46b-82.

Breaking down General Statutes 46b-82 there are fourteen criteria regarding periodic alimony:

1. Length of the marriage

2. Causes for the dissolution

3. Age

4. Health

5. Station

6. Occupation

7. Amount of Income

8. Sources of income

9. Vocational skills

10. Employability

11. Estate

12. Needs

13. Awards made pursuant to the division of property under

46b-81

14. If minor children, the desirability of the custodian parent securing employment

The first eleven factors of both statutes are the same. Both statutes contain the criterion of "needs." "Liabilities" is only a criterion in the division of property. The "opportunity of each for future acquisition of capital and income" and "the contribution of each of the parties in the acquisition, preservation and appreciation of their respective estates"are not criteria for periodic alimony. On the other side of the coin, the property awards that have already been made do consider each one of those criterion and the property already divided is a criterion for periodic alimony; the assumption being that the award of property is an asset which can produce income and, therefore, alleviate the need for periodic alimony.

In rendering its orders, this court has considered each of the criteria set forth in both statutes. As permitted by law, this court has given more weight to certain criteria. This Memorandum of Decision will not make express findings on each of these statutory considerations. Dubicki v. Dubicki, supra, 186 Conn. 716.

NONMONETARY CONTRIBUTIONS OF NON-WAGE EARNER SPOUSE MUST BE CONSIDERED

The criteria in the division of property under General Statutes 46b-81(c) are "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." These criteria have been held to be ambiguous under International Business Machines Corp. v. Brown, 167 Conn. 123, 133-34, 355 A.2d 236 (1974).

 

 

In light of the fact that an ambiguity exists as to whether it means solely financial contributions, or financial and nonfinancial contributions, such as homemaking services and primary caretaking responsibilities for the minor children, 'we must invoke the fundamental rule of construction which mandates that this court ascertain and give effect to the intention of the legislature. State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); State v. Salz, 8 Conn. App. 125, 141, 512 A.2d 921 (1986). In construing a legislative act, we may consider its history, its language, and the purpose it is designed to serve. Feldman v. Administrator, 138 Conn. 724, 727, 89 A.2d 210 (1952).'

O'Neill v. O'Neill, 13 Conn. App. 300, 308, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

After conducting such an analysis, the Appellate Court determined that these criteria include both monetary and nonmonetary contributions.

 

 

A property division ought to accord value to those non-monetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets. The investment of human capital in homemaking has worth and should be evaluated in a property division incident to a dissolution of marriage. We hold, accordingly, that an equitable distribution of property should take into consideration the plaintiff's contributions to the marriage, including homemaking activities and primary caretaking responsibilities.

O'Neill v. O'Neill, supra, 13 Conn. App. 311. The O'Neill court noted that whether the parties made such a contribution in the acquisition, preservation or appreciation of property is a question of fact. Sweet v. Sweet, 190 Conn. 657, 660-61, 462 A.2d 1031 (1983).

 

 

Our review of the record indicates that the trial court failed to consider (1) whether any of the plaintiff's alleged nonmonetary contributions to the family during the marriage made it possible for the husband to acquire or retain property, and (2) whether the wife's alleged nonmonetary contributions to the family during the marriage had the effect of preserving the value of already acquired property or appreciating the value of already acquired property.

O'Neill v. O'Neill, supra, 307-08.

The "nonmonetary contributions of a spouse" criteria has not been confirmed by the Connecticut Supreme Court. The defendant's petition for certification was denied on March 10, 1988. O'Neill v. O'Neill, 207 Conn. 806, 540 A.2d 374 (1988). The Supreme Court had the opportunity to consider this issue in Blake v. Blake, 207 Conn. 217, 541 A.2d 1201 (1988). After discussing O'Neill, the Supreme Court decided Blake using the criterion, "station."

 

 

We need not decide whether 'the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates' includes nonmonetary contributions. Sections 46b-81(c), 46b-82 and 46b-84(b) all require that the trial court consider the 'station' of each spouse. . . . A person's social standing is strongly correlated to his standard of living, although other factors may be important as well. Our courts have frequently considered the standard of living enjoyed by spouses in determining alimony or in dividing marital property.

Blake v. Blake, supra, 207 Conn. at 231-32.

In Blake, the defendant husband had a net worth at the time of trial of over $7,000,000, a growth of $2,600,000 during the marriage. There were three minor children issue of this twelve year marriage."It is undisputed that the plaintiff brought only $10,000 into the marriage, that she did not engage in any significant employment during the marriage, and that she did not participate in the defendant's investment decisions." Blake v. Blake, supra, 207 Conn. 230. Mr. Blake specifically requested the Supreme Court to overrule O'Neill v. O'Neill's nonmonetary contribution criteria. He made three arguments: (1) in 1978, Substitute House Bill No. 5084 proposed amending 46b-81(c) but failed to pass. It would have added the requirement that in assigning property that the trial court shall consider "the contribution of the spouse as a homemaker to the family unit"; (2) there is nothing in the 1973 legislative history of P.A. 73-373 20, now codified as 46b-81(c), to indicate that the legislature intended to include the nonmonetary contributions of a spouse in homemaking and raising children as a factor in determining the division of marital assets; and (3) if the legislature had meant to include nonmonetary contributions of a spouse as a criterion in property division in dissolution cases, it knew how to do so and having failed to do so, nonmonetary contributions of a spouse is not a criterion based on the plain reading of the statute. The Supreme Court in turning aside these arguments stated, "We need not decide whether 'the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates' includes nonmonetary contributions." Blake v. Blake, supra, 207 Conn. at 231-32. This court concludes that Blake v. Blake has cited with inherent approval the theory of O'Neill v. O'Neill that the statutory phrase "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates" includes the "nonmonetary contributions of a spouse."

Since 1988, the Supreme Court referred only once more to O'Neill v. O'Neill, in Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (1995). Krafick stands as our Supreme Court's definitive statement as to how property, in dissolution cases, is to be classified, valued and distributed.

Nothing in the legislative history of 46b-81 indicates an intent to narrow the plain meaning of 'property' from its ordinarily broad and comprehensive scope. Indeed, the term 'property' has been broadly defined elsewhere in the General Statutes. See General Statutes 52-278 (for purposes of attachment, property is defined as 'any present or future interest in real or personal property, goods, chattels or choses in action, whether such is vested or contingent.'. . .

 

Interpreting the term property broadly is also consistent with the purpose of equitable distribution statutes generally. It is widely recognized that the primary aim of property distribution is to recognize that marriage is, among other things, 'a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute - directly and indirectly, financially and nonfinancially - the fruits of which are distributable at divorce.'. . . J. Gregory, The Law of Equitable Distribution (1989) 1.03, pp. 1-6; see O'Neill v. O'Neill, 13 Conn. App. 300, 310-11, 536 A.2d 978, cert. denied 207 Conn. 806, 540 A.2d 374 (1988).

Krafick v. Krafick, supra, 234 Conn. at 795-96.

Continuing on with the reference to nonmonetary contribution under O'Neill v. O'Neill, the Krafick court, in discussing the methods of distribution, called attention to the plight of the nonemployed spouse receiving a portion of the employed spouse's pension. "Once the court has determined the present value of the benefits at issue, it may, in light of relevant equitable considerations, award those benefits to the employee spouse and/or may offset the nonemployee's equitable share in the pension benefits with an award of other assets." Krafick v. Krafick, supra, 234 Conn. 801. In considering the disadvantages to the nonemployed spouse receiving a portion of the pension to be paid in the future leaving her without sufficient current resources, the Krafick court noted and appeared to accept the following argument and concerns as expressed by the amicus counsel to the Connecticut's Women's Education and Legal Fund:

Thus, where it is equitable to do so, the trial court may offset the allocation to one spouse of the entire value of the pension with alimony instead of or in addition to assets. It must be kept in mind, however, that awards of property and of alimony are different in quality and consequence for the recipient. Periodic alimony, unlike a property award, is subject to modification on a number of grounds. See General Statutes 46b-86. As the amicus points out, to award alimony instead of assets, may leave the recipient spouse, often a woman, dependent on the employee spouse, without sufficient resources, and may not adequately or fairly recognize the nonemployed spouse's contribution to and expectations of security from the pension benefits. See O'Neill v. O'Neill, supra, 13 Conn. App. 300; cf. Diffenderfer v. Diffenderfer, 491 So. 2d 265, 268 (Fla. 1986); see also 3 Family Law and Practice, supra, 37.01[a], pp. 37-12 through 37-13 ("Modern equitable distribution systems also facilitate the goal of affording a means of support for an economically dependent spouse which is not subject to the vagaries of periodic alimony and does not require continued contact between the divorced spouses . . . . Equitable distribution statutes also promote the finality of the parties' actual separation and parting. The goal of leaving each party in a self-sufficient state so as to preclude the need for future dealings between the parties or return trips to the courthouse, is advanced by use of property distribution instead of support payments.'); H. Foster & D. Freed, 'Spousal Rights in Retirement and Pension Benefits,' 16 J. Fam. L. 187, 188-91 (1977-78). We need not decide in this case whether, in light of these concerns, alimony properly could be substituted for an award of property to this plaintiff.

Krafick v. Krafick, supra, 801 n. 25.

The Supreme Court, in dicta, did mention in a pre-O'Neill decision the concept of a homemaker's contributions. The footnote, mentioned by the Supreme Court in 1982, is further evidence that they would adopt O'Neill v. O'Neill.

For some cases which recognize that, at the time of the original decree of dissolution, it is proper, in deciding how the material wealth of the parties accumulated during the marriage is to be divided, to consider the contribution of each spouse when one continues to be gainfully employed and the other devotes full time to being a homemaker. See, e.g., Colucci v. Colucci, 392 So. 2d 577 (Fla. App. 1981); Brown v. Brown, 300 So. 2d 719 (Fla. App. 1974).

Cersosimo v. Cersosimo, 188 Conn. 385, 400 n. 25, 449 A.2d 1026 (1982).

In 22 later decisions the Connecticut Appellate Court had the opportunity to reconsider O'Neill v. O'Neill. In each of those decisions the Appellate Court confirmed its holding. The latest is Burns v. Burns, 41 Conn. App. 716, 677 A.2d 971 (1996).

The court must consider all of the statutory criteria in determining how to divide the parties' property in a dissolution action. Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985). A trial court, however, need not give each factor equal weight; Kane v. Parry, [24 Conn. App. 307, 313-14, 588 A.2d 227 (1991)]; or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.' Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991). . . . We point out that in determining the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates . . . the trial court must accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets. O'Neill v. O'Neill, 13 Conn. App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). . . . Siracusa v. Siracusa, supra, 30 Conn. App. [560, ]566-67[, 621 A.2d 390 (1993)]. A fundamental principle in dissolution actions is that a trial court may exercise broad discretion . . . as long as it considers all relevant statutory criteria. . . . On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria . . . ."

(Internal quotation marks omitted.) Burns v. Burns, supra, 41 Conn. App. at 720-21.

Trial judges have also considered the nonmonetary contribution rule of O'Neill v. O'Neill. This court has not been able to examine trial court decisions before 1990. An examination of unpublished trial court decisions citing O'Neill v. O'Neill with approval from 1990 to date indicate that there are 98 such decisions. In addition there are numerous dissolution decisions that apply the nonmonetary contribution criterion without a citation to O'Neill. This court has found no trial court decision that disagrees with O'Neill.

Although the Supreme Court has not acknowledged in definitive terms that nonmonetary contributions are a factor for division of property and the award of periodic alimony, it is clear that all available trial court decisions, and the Appellate Court adopt O'Neill v. O'Neill. This court believes that the Connecticut Supreme Court,if given the opportunity, will adopt O'Neill v. O'Neill and find that the "nonmonetary contributions of a spouse" is a criterion that must be considered in the division of property and the determination of periodic alimony.

NONMONETARY CONTRIBUTIONS OF WAGE EARNER SPOUSE MUST BE CONSIDERED

O'Neill v. O'Neill interpreted the criterion of "contribution of each of the parties to the acquisition, preservation and appreciation of their estate" under General Statutes 46b-81c and 46b-82 to include nonmonetary contributions. "We hold, accordingly, that an equitable distribution of property should take into consideration the plaintiff's contributions to the marriage, including homemaking activities and primary caretaking responsibilities." O'Neill v. O'Neill, supra, 13 Conn. App. 311. The plaintiff wife in O'Neill was the non-wage earner spouse. The 1973 equitable distribution scheme is spouse neutral with all gender reference eliminated. It established, for the first time in Connecticut, that a wife can be obligated to pay alimony to her husband. It could be argued that the above quoted section of the Appellate Court's O'Neill opinion is couched in gender favorable language, referring to the noneconomic contributions of one spouse as the spouse who is exclusively the non-wage earner homemaker. This type of inherent gender bias is not permitted by the 1974 Equal Rights Amendment to the Connecticut constitution. Conn. Const., art. I, 21.

To save such a claim from ERA constitutional infirmity, a spouse neutral interpretation must be given. For example, the following is such a spouse neutral statement: "We find the statutory mandate to consider the contribution of each spouse to the acquisition of the marital property, including the contribution of the homemaker, is a recognition by the legislature that the homemaking endeavors of both spouses in a marriage have a marital value which contributes to the acquisition of marital property. There is no justification for limiting this factor exclusively to a non-wage earner, primary homemaking spouse. Rather, both functions, homemaking and wage earning, are considerations." Temple v. Temple, 435 N.E.2d 259, 262 (Ind. Ct. App. 1982).

"An equitable division of property upon divorce or dissolution envisions that full recognition by the courts will be given to the noneconomic contributions of both spouses." O'Neill v. O'Neill, supra, 13 Conn. App. 311. "Courts must consider both of the parties' monetary and nonmonetary contributions in making its distribution of the parties' assets." DeVellis v. DeVellis, 15 Conn. App. 318, 321 n. 4, 544 A.2d 639 (1988). There is no reason contained in our statutory scheme, the 1974 ERA, O'Neill v. O'Neill or any of the many trial court decisions citing O'Neill since 1988, why nonmonetary contributions are limited just to the non-wage earner spouse. The nonmonetary contributions criterion is spouse and gender neutral and should be wage earner neutral. The trial court, therefore, must consider the nonmonetary contributions of the wage earner spouse as a criterion.

QUANTIFICATION OF NONMONETARY CONTRIBUTIONS

O'Neill v. O'Neill, supra, 13 Conn. App. 311 refers to two concepts that in 1988 were new to Connecticut marital distribution: "nonmonetary contribution" of one spouse, and "human capital." Do these phrases involve two separate concepts? As will be discussed later in this decision, the answer is yes. "Human capital" is one of a number of methods of placing a value on nonmonetary contributions.

There are a number of approaches to the valuation of nonmonetary contributions. Five will be discussed: (1) dollar amount, (2) formula, (3) market value replacement, (4) opportunity cost, and (5) human capital. The first two methods will be discussed now, and later on in this section the court will discuss the last three methods.

The first approach, the dollar amount method, would establish an award by the use of a predetermined schedule. Connecticut uses such a dollar amount method to establish child support. General Statutes 46b-215b. The Connecticut Child Support Guidelines Schedule of Basic Child Support uses the combined net weekly income of both parties in obtaining a weekly support need based on the number of minor children and allocates that weekly support need between the parties on a percentage basis. Deviation is permitted but the deviation standards are strictly applied and permit no discretion by the court. Regs., Conn. State Agencies 46b-215a-3; Favrow v. Vargas, 222 Conn. 699, 715, 610 A.2d 1267 (1992). A dollar amount method similar to the Child Support Guidelines is not appropriate to value nonmonetary contributions because (1) the guidelines are established by statute and there is no such statute authorizing their use in computing nonmonetary contributions; (2) the Child Support Guidelines only consider a party's monetary contributions to the family; (3) the Guidelines are based on the Income Shares Model which "is predicated on the concept that the child should receive the same proportion of parental income as he or she would have received if the parents lived together." Child Support and Arrearage Guidelines, Issued by the Commission for Child Support Guidelines, Effective June 1, 1994, Preamble (c) p. ii; (4) judicial discretion is significantly curtailed by the guidelines statute but is required to be exercised in the court's use of the statutory factors at issue in this case, General Statutes 46b-81(c) and 46b-82; and (5) the Guidelines do not operate at the high end of the income spectrum. The Guidelines are not applicable with a combined net weekly income exceeding $1,750. "When the parents' combined net weekly income exceeds $1,750, awards shall be determined on a case-by-case basis and the amount of support prescribed at the $1,750 level shall be the minimum presumptive level." Regs., Conn. State Agencies 46b-215a-2(a). "It is generally accepted that the guidelines are of minimal value in framing support obligations at both the high and low ends of the income scale." (Internal quotation marks omitted.) Battersby v. Battersby, 218 Conn. 467, 473, 590 A.2d 427 (1991).

The second approach would be the use of a formula. Despite the overwhelming number of states that require nonmonetary contributions of a spouse to be considered, none of the jurisdictions adopt a strict monetary formula. Many states are bound by community property distribution rules, and a number have equal division as a presumption or a starting point. Yet none of these states establish a formula approach to place a value on the factor of a spouse's nonmonetary contributions. The states that presume that the contribution of each spouse is equal do not declare that the property must then be divided according to a set formula. Nor do those "presumption" states establish any formula for valuing one spouse's nonmonetary contributions.

Connecticut does not permit the use of a set formula.

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). The scope of our review of a trial court's exercise of its broad discretion in domestic relations cases is limited to the questions of whether the trial court correctly applied the law and could reasonably have concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987). Voloshin v. Voloshin, 12 Conn. App. 626, 629, 533 A.2d 573 (1987). Crocker v. Crocker, 13 Conn. App. 129, 132, 534 A.2d 1251 (1987).

(Internal quotation marks omitted.) Oneglia v. Oneglia, 14 Conn. App. 267, 271-72, 540 A.2d 713 (1988).

Further discussion is needed prior to reviewing the last three stated approaches to valuing nonmonetary contributions, i.e., market value replacement, opportunity cost and human capital.

No Connecticut appellate court has discussed, other than O'Neill, the phrase, "human capital." The only references in appellate court cases to "human capital" are direct quotes from O'Neill v. O'Neill. The only reference in a United States Supreme Court case to "human capital" is in Justice Breyer's dissent in the leading commerce clause case of United States v. Lopez involving guns in school. "That investment in 'human capital' (through spending on education) exceeded investment in 'physical capital' by a ratio of almost two to one. . . ." United States v. Lopez, 514 U.S. 549, 620, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995) (Breyer, J., dissenting). This reference is of no assistance to resolving this question.

A number of appellate court cases refer to the phrase, "nonmonetary contributions." None of these cases give any definition of "nonmonetary contributions." The closest is the following from Werblood v. Birnbach, 41 Conn. App. 728, 736, 678 A.2d 1 (1996): "The trial court did not find that one party assumed more household and child-rearing responsibilities than the other or that the assumption of such responsibilities by one party enabled the other party to devote substantial effort to paid employment." One court refers to "nonmonetary" as "noneconomic." Ashton v. Ashton, 31 Conn. App. 736, 740,627 A.2d 943 (1993). See also passing reference to "noneconomic" in O'Neill v. O'Neill, supra, 13 Conn. App. 311 referring to other jurisdictions, and their treatment of noneconomic contributions of both spouses. The phrase, "noneconomic," is not favored since this is a concept contained in tort reform damages. General Statutes 52-572h(a)(2). Therefore, all further reference in marital cases should be to "nonmonetary contributions," not economic or noneconomic contributions.

Historically, work in the family has not been treated as comparable with work in the marketplace. The Gross National Product (GNP) only measures paid market activities. The work of maintaining a family, child bearing and caring, house work, home maintenance, meal preparation and subsistence or agriculture is excluded from the GNP unless performed for payment. The IRS only taxes remunerated work. Social Security schemes as well as workers compensation, unemployment and disability benefits cover only workers in the wage labor economy and their dependents.

 

 

The distinction between market and nonmarket production is a heavily gendered one; work done predominantly by women remains invisible to economic policy makers. Both the statistical indicators and the policies based upon these indicators privilege market production and the types of economic activity most characteristic of modern, industrialized societies over household production and more traditional economies. Reforming treatment of household production has gained currency, in part because increasing portions of women's traditionally unpaid labor in the home has been shifting to the market. Without better information on household production, evaluating these types of changes is difficult.

A. Estin, "Love and Obligation: Family Law and the Romance of

Economics," 36 Wm. & Mary L. Rev. 989, 992-94 (1995).

"The spousal contribution of domestic labor may not confer an equal financial benefit, but may have made it possible for the couple to raise children as well as accumulate property. One spouse may have contributed more than the other in emotional stability, optimism, or social skills, and thereby enriched the marital life. Property may be the only thing left at dissolution for the court to divide, but it is not usually the only thing produced during the marriage." American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations, p.228, (Tentative Draft No. 2, 1996).

Dr. Myra H. Strober, a Stanford University professor of education, testified on behalf of the plaintiff. She has taught at Stanford since 1972, currently teaching courses in Economics of Education, Earnings of Women's Education and Employment and Quantitative Methods of Evaluation. She received a Master's Degree from Tufts in Economics and a Ph.D in Labor Economics from MIT. She has written extensively and given seminars on valuation of the nonmarket worth of women and the value of women's employment. Her research includes an article entitled "Challenges to Human Capital Theory: Implications for H. R. Managers" published in the spring 1990 issue of the Industrial Relations Journal. She is qualified to testify on the quantification of nonmonetary contributions. Exhibit 64, 8 page C.V. of Dr. Myra H. Strober. An expert on "human capital" may be permitted to testify and offer expert opinion if qualified under the rules. Hall v. Hall, 88 N.C. App. 297, 308, 363 S.E.2d 189 (1987); State v. Borrelli, 227 Conn. 153, 174, 629 A.2d 1105 (1993); Knock v. Knock, 224 Conn. 776, 784, 621 A.2d267 (1993).

For many years general economic theory stated, "if it does not go through the market, it has no value." Professor Strober indicated that there is a value to nonmarket work performed by women in the house. Three separate theories exist concerning the valuation of nonmonetary contributions by a spouse in a marriage. The first is the "market value replacement" approach. The second is the "opportunity cost" approach. J. Avner, "Using the Connecticut Equal Rights Amendment at Divorce to Protect Homemakers' Contributions to the Acquisition of Marital Property," 4 U. of Bridgeport L. Rev. 265, 268-69 n. 13 (1983). The third is the "human capital" approach.

The "human capital" theory is an economic concept "as old as Adam Smith." Professor Gary S. Becker of the University of Chicago was awarded the Nobel Prize in Economics, in part related to the "human capital" theory. He applied microeconomic theories to social problems including various aspects of family life. Gary S. Becker, A Treatise on the Family (1991). Professor Becker defines the human capital theory as, "People make investments in careers by education and on the job training. Rewards from those investments accrue over the entire time that they are in the labor market." The theory considers that nonmonetary contributions can be made by a nonworking spouse by putting food on the table, paying for tuition for the husband's going to school and general support of the husband. Human capital may be augmented by education, training, experience and medical care, or it can deteriorate from such causes as lack of current work experience or substance addiction. Gary S. Becker, Nobel Lecture, "The Economic Way of Looking at Behavior," 101 J. Pol. Econ. 385, 392 (1993). Therefore, according to Professor Strober, the "human capital" theory is one of the three different approaches she used in evaluating the plaintiff's nonmonetary contributions.

The first approach discussed by Professor Strober was "market value replacement." That would be the amount of money that would have to have been paid by the defendant over the 31 year marriage to replace the actual physical labors performed by the plaintiff. This approach lists all the jobs performed by the homemaker, the number of hours each week devoted to each activity and the hourly wage paid to an individual employed in that particular function. One writer suggests the following tasks: "buyer (food and household), nurse, tutor, waitress, seamstress, laundress, chauffeur, gardener, family counselor, maintenance worker, nanny/child care, cleaning woman, housekeeper, cook, errand runner, bookkeeper/budget manager, interior decorator, caterer, dishwasher, dietician, secretary and maid/hostess." M. Minton, "Valuing the Contribution of the Homemaker at Trial," 1 Fairshare 7, 11 (Oct. 1981). Another author breaks down the tasks into six services: (1) meal preparation, (2) laundry work, (3) housecleaning, (4) shopping, (5) child care, and (6) miscellaneous activities such as general repairs. B. F. Kiker, "Divorce Litigation: Valuing the Spouses' Contribution to the Marriage," Trial p. 48 (Dec. 1980).

Professor Strober stated that there are three general categories of workers that would have to be hired to duplicate the work of the plaintiff: (1) child care, (2) cooking, and (3) house cleaning. Each would work a separate mythical eight hour day each day of the year. At $10.00 per hour times 24 hours times 365 days, a full time child care/cooking/house cleaning worker at that rate would be paid $87,600 annually. Dr. Strober noted, that not included in the above, would be the following additional services: (1) parental supervision, (2) bill paying, (3) trip planner, (4) shopper, and (5) child homework tutor. The support furnished to the defendant by his wife and the support furnished to the family by a mother would not be capable of being qualified in economic terms. Professor Strober purposefully did not include possible income tax deductibility of these costs to the defendant, inflation over 31 years nor administrative and costs of benefits. The total of $87,600 times the 31 year marriage is $2,715,600.

Another report entitled the "Sylvia Porter Study" assumes 99.6 hours per week spent in domestic work. Using 1979 dollars that study computes the annual value of that work at $18,862.48. William G. Baker and Michael K. Seck, Determining Economic Loss in Injury and Death Cases, 191-92 (1987). Using a 6% annualized rate of inflation, the $18,862.48 is $53,513 in 1997 dollars. At 99.6 hours per week this is $10.33 per hour, a similar hourly rate used by Professor Strober whose results are larger since each of the 168 hours of a calendar week were used. Clearly the defendant can offer to pay the plaintiff a lump sum in cash of $2,715,600, but that sum is only one quarter of the sum the defendant has offered. Only one/one hundredth of one percent of the families in the United States have assets that approach those numbers. The "market value replacement" approach does not work in this case.

The "opportunity cost" approach values a nonmarket laborer, i.e., what would plaintiff's earnings have been if she had been involved in her musical career throughout those 31 years? "The unit value of a person's time is considered the same for marketplace and nonmarket place production; thus, 'the economic value of unpaid work is equal to or greater than the wage rate that the same person would command in the marketplace, regardless of the comparability of the two jobs performed.'" J. Avner, supra, 4 U. of Bridgeport, L. Rev. 268-69 n. 13. There was little testimony supporting the "opportunity cost" approach. There was testimony that the wife was earning in the $6,000 to $7,000 range as a music teacher in the mid 1960's. There was no testimony as to what the current earnings would be for a public school music teacher.

Professor Strober was asked about the "opportunity cost" method concerning evaluation of the plaintiff's music career. Doctor Strober assumed she was a public school music teacher. The plaintiff gave private piano lessons, played the church organ, sang in the church choir, was involved in music in school and never had any professional music activity. Professor Strober indicated that although it may be difficult to evaluate the actual dollar value of her music career by using the "opportunity cost" approach, it is possible that the plaintiff could have been a highly paid opera singer and, therefore, would have had substantial earnings.

This court considered the opera singing testimony as being pure speculation. This court concludes that the value of a career as a music teacher or musician was not shown by credible testimony to be greater than the dollar amount of earnings in the "market replacement" approach. Any testimony in this regard is pure speculation. No valuation can be based on speculation. Rubin v. Rubin, supra, 204 Conn. 230-32. This court is also mindful of the infamous Connecticut case regarding the earning capacity of a "nationally celebrated harpist." Anderson v. Anderson, 191 Conn. 46, 48, 463 A.2d 578 (1983). The testimony from the plaintiff does not approach the earning capacity testimony in Anderson v. Anderson, supra, 52.

Professor Strober also indicated that the "opportunity" cost approach would be less accurate than using the "market value" approach based on the facts of this case.

The third method, "human capital" theory, was testified to as being the most accurate. The investment made in the plaintiff's career by education, job training and accrued rewards and the dollar value placed on it is the basis of the "human capital" theory. Economists studying "human capital" tie the value of time spent on household tasks to a number of variables at each point in time: (1) the composition of the household; (2) the age, education and wage rates of the husband and wife; (3) the number and ages of the children; and (4) more sophisticated measurements as the assets and earnings increase, such as the number of rooms in a house. Reuben Granao, "The Intrafamily Allocation of Time: The Value of the Housewives' Time," 63 Am. Econ. Rev. 634, 639-40 (1973). Different values for different stages of the life of the plaintiff must be computed.

Professor Strober divided the plaintiff's life into four stages. The first was from 1965 through 1967, the first two years of the marriage, when the plaintiff kept house, did the shopping, purchased food, did laundry, was employed, earned income for the family and offered support and secretarial skills for the defendant when he was in school.

The second stage occurred from 1967 through 1975 when they lived in Texas, Georgia and Florida. The parties moved a number of times. The defendant became employed and the plaintiff stayed employed until the birth of their first child. The plaintiff then was the mother and reared the children including extensive care during the second child's illness. The plaintiff performed all the duties of the first stage except for continued employment. Additionally, the plaintiff performed entertainment duties. This permitted the defendant to travel a good deal which lessened his ability to assist in child rearing. Further, the plaintiff kept house and performed household duties. The plaintiff assisted in selling the house, relocating the family and adjusting the children to their new location.

The third stage is from 1975 when they moved to Stamford through 1985 when he became the CEO at GECS. The plaintiff continued with her parenting obligations. The plaintiff became more involved in the defendant's career, e.g., more entertaining, developing people skills and involvement with the executives' wives. The plaintiff had to maintain a high community status. This included home entertaining as well as performing the homemaking duties set forth in the first and second stages. It was important to his career for her to create a correct impression of the Wendt family status within the community.

The fourth and final stage occurred when the defendant was named CEO of GECS in 1985 until their separation on December 1, 1995. The plaintiff performed the duties of a homemaker. The plaintiff had less duties concerning the children since they were grown. Her duties as a corporate wife became more time consuming. The plaintiff had to be a diplomat's wife, "the ambassador of the company." This involved more travel, more entertainment and more important contacts. The plaintiff also had to work with GE employees other than the defendant to plan trips and business entertainment. The plaintiff appeared at the corporate headquarters on a number of occasions. Her involvement in the community and charitable events as status maintenance was even higher based upon the defendant's high profile. The plaintiff was involved in a variety of boards and local charities. She had a larger role in corporate business entertainment in addition to her homemaking role.

Dr. Strober valued each of those four different stages separately using the "human capital" theory and obtained four different values of the wife's nonmonetary contribution to the entire marriage.

Dr. Strober indicated that the "human capital" theory was the best approach for evaluating the plaintiff's nonmonetary contribution to this family. The market replacement value is not generally looked upon with great favor by the industry. It is impossible to buy the services of one person to perform the duties of a mother and a wife. The second method, the opportunity approach, involves too much guesswork and speculation.

Underlying the human capital theory, is the phrase "equal efforts and equal sacrifice." This means that both parties expend equal efforts in their areas of expertise and equally sacrificed certain benefits. Dr. Strober referred to the Wendts as a "two person career," i.e., that it required two people to perform the high powered corporate career successfully. Therefore, each of those contributions is valued equally regardless of the underlying economic market value of those efforts.

Dr. Strober indicated that it was very difficult, under the "human capital" theory, to come up with a dollar amount for the evaluation of the nonmonetary contributions by the plaintiff during those four stages of the marriage. She felt that it is easier to come up with a percentage figure applying "equal efforts and equal sacrifice." Dr. Strober's opinion was that both parties made equal efforts and equal sacrifice. Both parties spent substantial hours for the family and substantial hours for the corporation. Therefore, she concluded that the contributions were equal. Therefore a fifty-fifty division of the assets is appropriate as well as a fifty-fifty division of all earnings. She based this opinion on her knowledge of economic theory applied to the facts of this case, as well as the plaintiff's trial testimony.

This opinion finds support in a lengthy law review article:

Where property division is concerned, the image of marriage as a partnership has been deployed in support of relatively equal division of 'marital assets.' The theory presumes that husband and wife both have made significant contributions during their marriage. In some states, marital property divisions are presumptively equal. In many others, statutory language requires that the court begin by considering various factors, including each party's contributions to the marital enterprise. Among those factors, it is commonly provided that the 'contribution of a spouse as homemaker' must be considered.

 

The official comment to the Uniform Marriage and Divorce Act refers to the homemaker contribution provision as a 'new concept in Anglo-American law.' This language was readily adopted by courts, which read the statutes to define a homemaker as an 'equal partner' in a marriage. Early decisions and commentary emphasized the need to value a homemaker's contributions comparably with those of a breadwinner; in some cases, the language of economics is used to defend these rules.

 

The partnership metaphor and a more extensive division of property have been readily assimilated into family law. Disagreement persists over the adequacy of these principles for doing justice between the parties, particularly given the often disparate financial condition of two partners at the end of their marriage. Increasingly, the debate suggests that a partnership approach to marriage is inadequate without a greatly expanded definition of marital property. In particular, the case is made that the parties' career and earning potential should be treated as subject to division. The need to redefine marital property is often explained in economic terms with the argument that a career or degree represents a significant increase in one spouse's 'human capital.'

 

The treatment of human capital issues in divorce has created an opening for economic argumentation more generally in family law. In addition to the literature on human capital investments and divorce, there is a growing body of normative literature based in economic theory. These writings suggest, implicitly or explicitly, that the answers to questions concerning the legal entitlements of family life can be derived from the norms of economics.

A. Estin, supra, 36 Wm. & Mary L. Rev. 1051-55.

Dr. Strober said human capital theory talks about dividing the assets "which flowed from investments that were part of the two parties' careers." Excluded from that analysis would be any inheritance which would not have been attributed to either of their careers. "The paradigm case is the divorce that occurs shortly after one partner has completed a degree or received a professional license, an event that corresponds with another central aspect of the new family economics - the study of 'human capital' formation." A. Estin, supra, 36 Wm. & Mary L. Rev. 1087 n. 72. This scenario reflects opportunism or exploitation of the economic effects of a joint enterprise.

Dr. Strober noted that human capital is best demonstrated by the valuation of a professional degree or license. Connecticut law does not provide for the valuation of a professional degree. Dr. Stroeber was familiar with case law in New Jersey that permits a human capital valuation in the case of a professional degree. The court assumed that the witness was talking about Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (N.J. 1982). Under that theory an educational degree, such as an M.B.A., is considered property for marital distribution purposes even if it does not have an exchange value or any objective transferable value in an open market. The evaluation of such a degree was based upon the concept of "reimbursement alimony" which was used as a means of compensating the supporting spouse who has suffered a loss of support or been deprived of a better standard of living in the future.

 

 

Regardless of the appropriateness of permanent alimony or the presence or absence of marital property to be equitably distributed, there will be circumstances where a supporting spouse should be reimbursed for the financial contributions he or she made to the spouse's successful professional training. Such reimbursement alimony should cover all financial contributions towards the former spouse's education, including household expenses, educational costs, school travel expenses and any other contributions used by the supported spouse in obtaining his or her degree or license.

Id. 534.

No appellate court in Connecticut has resolved the issue of whether a professional degree constitutes property subject to distribution in a dissolution proceeding. An ongoing medical practice can be valued. Eslami v. Eslami, 218 Conn. 801, 817, 591 A.2d 411 (1991). I find the only Connecticut trial court decision on this subject authoritative, holding that a medical degree cannot be bought or sold, has no exchange value, and any value that it may have is speculative. "A substantial majority of jurisdictions which have ruled on the question have held that [a] professional license or degree is not property that can be distributed in a divorce proceeding." Simmons v. Simmons, 1997 Conn. Super. LEXIS 108, Superior Court, judicial district of New Haven at New Haven, Docket No. 387050 (January 6, 1997, Alander, J.) (1997 Ct. Sup. 343, 346) "I find that the plaintiff's medical degree is not property pursuant to General Statutes 46b-81." Simmons v. Simmons, supra, 1997 Conn. Super. LEXIS 108, Superior Court, Docket No. 387050 (1997 Ct. Sup. 351). Simmons holds that the medical degree, although not property, can be included for consideration as to "the opportunity of each for the future acquisition of capital assets and income." It can also be considered as the "contribution of each party in the acquisition, preservation or appreciation in the value of their respective estates." Simmons, the law of Connecticut at this point, severely weakens Professor Strober's "human capital" analysis.

On cross-examination, Professor Strober, who had reviewed the defendant's deposition outside the presence of the court, could not point to any deposition testimony that would lead her to believe that "the defendant would not have been successful but for the plaintiff." Professor Strober is also aware that men have gone to the top of their careers without the help of a spouse. Professor Strober is aware of single and divorced men who have gone to the top of the corporate ladder as well as single parents. Professor Strober was also asked on cross-examination whether she was aware that during 1996, when the parties were separated, the plaintiff did not travel on business trips or attend business meetings, and yet, GECS had its most successful year. Professor Strober was not aware of those facts. It appeared that Professor Strober has based her opinion on a presumption that all efforts were equal and all sacrifices were equal, i.e., by being married their contributions were equal. Professor Strober agreed that "in some cases the contributions are different and, therefore, in those cases the rewards will be different." She acknowledged that she has read nothing about the defendant's contributions to the profits of GE and the resulting Wendt asset increase. She spoke to no GE employees on these matters.

The plaintiff cited in her brief on equitable division and its constitutional ramifications, Ann Laquer Estin, "Love and Obligation, Family Law and the Romance of Economics," 36 Wm. & Mary L. Rev. 989 (1995). In fact the article speaks in opposition to the plaintiff's ultimate position that marriage should be treated in economic terms as a partnership. The author and Professor Myra Strober rely on the same source, the Nobel laureate economist, Professor Gary S. Becker. "Even in the specific context of property division upon divorce, the economic model of marriage has its limits. The insight of economic theorists that human capital changes have significant and long-term effects during and after marriage is important. But efforts to value and divide precisely the particular aspects of changes in human capital that have occurred during marriage have the effect of objectifying both husband and wife and their relationship." A. Estin, supra, 36 Wm. & Mary L. Rev. 1087.

"Economic analysis requires that we recognize that services within a household are valuable, just as services between strangers are. At the same time, relationships within a family are far more complex and contextual then what economic analysis can embrace." Id., 1084. "It is not necessary to quantify precisely the value of a homemaker, a professional license or a life's lost opportunities." Id., 1083. "The analysis of tort claims, contract and restitution, and property division in divorce all reveal the limitation which economics encounters in the setting of the family and the difficulties that arise from the application of market principles to nonmarket behavior." Id., 1085.

This court concludes that by utilizing any of the five valuation approaches set forth before the court, no reasonable quantification can be made of the nonmonetary contributions of the plaintiff. Nonmonetary contributions are exactly that, nonmonetary and cannot be quantified in either dollar value or an accurate percentage. "Economic theory provides a strong basis for the argument that human capital assets should be valued and divided in divorce, but these arguments do not address the concern with commodification of intelligence and love that appears regularly in the case law or the practical problems that would result if this approach were enacted into law." Id., 990. Commodification is a term of art used in the treatises discussing the subject of valuation and it refers to the act of creation of "a commodity" out of a non-commercial item. Margaret J. Radin, "Market-Inalienability," 100 Harv. L. Rev. 1849, 1851 (1987).

This court is also mindful of the difficulty for a fact-finder in a tort case to place a value on a human life, especially that of a nonworking wife. "Who can value the love and companionship, the strength and solace in times of sorrow, the joyous partnership in times of happiness, of a steadfast and devoted wife." Legare v. United States, 195 F. Supp. 557, 561 (S.D. Fla. 1961). In Legare, the court quoted Proverbs that "her price is far above rubies" yet set an award of $25,000 for the husband's loss of consortium. Assuming a 6% inflation rate in 1997 dollars the award would be $200,000.

The treatment of intangible acts in a marital relationship as property may have a tendency during the marriage for parties to act towards each other out of self-interest, not out of the vows of love and obligation. "Another risk of these methods is that the attempt to value investments in human capital pushes the institution of marriage from a relationship based on love and obligation toward one based on self-interest." A. Estin, supra, 36 Wm. & Mary L. Rev. 1064. "Marriage is not a business arrangement in which the parties keep track of debits and credits, their accounts to be settled upon divorce." Mahoney v. Mahoney, supra, 453 A.2d 533.

There are further reasons why an economic approach to establishing a definite value of a spouse's nonmonetary contributions is fraught with danger.

 

 

1) The human capital approach to the financial remedies in marriage defines the entitlements of marriage based on norms of investment, exchange, and maximization. The institution of marriage is changed by this definition because the 'intangible benefits' of marriage-sharing and sacrifice, love and obligation, 'for better and for worse'-have all been pushed to the periphery. Instead, marriage is held to an economic standard of rationality.

 

2) The effort to quantify changes in human capital also alters our view of the individuals within a marriage, requiring that we define and distinguish the components of their income-earning potential. Because there are serious measurement problems when the intangible aspects are added to the calculus, they are simply eliminated in favor of more monetizable factors.

 

3) There are two aspects to the commodification problem created by human capital assets in marriage. The first arises from treating personal capacities as if they could be purchased and sold.

 

4) The second arises from thinking about martial interactions as exchanges between husband and wife. One recurring theme in the case law and commentary on career assets is that it is difficult to distinguish the results of education and career development from the results of personal qualities such as talent, intelligence, ambition, and hard work. Economists note this problem, and some use it to argue for more limited, investment-based measures of compensation in divorce. Judges also worry about it, and their concern is apparent in the published decisions.

 

5) Another consistent thread is the concern not to commercialize marriage by treating it as a business or financial venture. . . .

 

 

6) As with the complex formulas for valuation of homemakers in tort, these issues cast doubt on whether the legal system can or should attempt to structure remedies that require such precise measurement.

 

7) Judges express the concern that the routine use of experts adds significant expense to the divorce process.

 

From an economic viewpoint, precise valuation of many 'career assets' create large additional transaction costs in the divorce process. This expense might be justifiable if it led to substantial reductions in other individual or societal costs of divorce-an unlikely result that is not argued in the literature. . . .

 

8) Another risk of these methods is that the attempt to value investments in human capital pushes the institution of marriage from a relationship based on love and obligation toward one based on self-interest. Even those courts allowing for compensation are careful to reject the discourse of markets and exchange. In a widely quoted passage, the New Jersey Supreme Court commented that 'marriage is not a business arrangement in which the parties keep track of debits and credits, their accounts to be settled upon divorce.'. . .

 

9) In the economic analysis of divorce and its financial consequences, there are signs that the messy, flesh and blood reality of marriage and family life has been transformed into cleaner, simpler, more manageable forms. This work uses a model of marriage with roots in Becker's model of efficient specialization and in the functionalist sociology of the 1950's. In this model, the causes of divorce are rational, and the problems of divorce are solvable by economic and psychological expertise. Primarily, the economic problem of divorce is a problem of wives who have specialized in household production and who are left by husbands at the threshold of their career success. There is no domestic violence, there is no male unemployment, and there are no breadwinning wives to confuse the picture.

A. Estin, supra, 36 Wm. & Mary L. Rev. 1061-66.

For all those reasons this court rejects any attempt to place a specific dollar value on a spouse's nonmonetary contributions. Milton C. Regan, Jr., "Market Discourse and Market Neutrality in Divorce Law," 1994 Utah L. Rev. 605, 668-84. "One cannot calculate numerically the value of love and emotional support. When the union is severed, the ability to count dollars does not compel us to ignore all contributions, save dollars, and give to the parties as they gave monetarily to the marriage." Evans v. Snyder, 207 N.Y.L.J. 21, April 15, 1992 (Sup. Ct.N.Y. County 1st dept. 1992).

The nonmonetary contributions of both spouses are still relevant for the contributions made to the acquisition, appreciation and preservation of the estate. O'Neill v. O'Neill, supra, 13 Conn. App. 311.

"ENOUGH IS ENOUGH" IS NOT CONNECTICUT LAW

The plaintiff argued throughout the trial that there is an inherent unstated policy in high asset, long term marriage dissolutions that limits the amount of periodic alimony and property that can be awarded to the economically deprived spouse. In most situations these cases involve a wealthy couple consisting of a high ranking male corporate executive in a long term marriage to a wife who has not been employed throughout most of the marriage. The plaintiff refers to this unstated policy as "enough is enough." It has also been referred to as "How much is enough?" or "She will have enough." The plaintiff claims that the argument of the high earning male spouse is that "with the award of x amount in alimony and property, any wife can support herself in the lifestyle to which she is accustomed, and, therefore, she 'needs' no further money." "Enough is enough" usually means that the lion's share of the assets, usually in excess of eight figures, is awarded to the male corporate executive.

No Connecticut case has been found which addresses in specific terms the concept of "enough is enough." The issue was discussed in a footnote in a 1990 Wisconsin Law Review article written by Mary Moers Wenig, then a professor at the University Bridgeport and advisor to the Drafting Committee for the Uniform Marital Property Act. She concludes in reference to informal surveys of marital distribution in Connecticut, "the more there is, the smaller the percentage the non-propertied spouse receives." Mary Moers Wenig, "The Marital Property Law of Connecticut, Past, Present and Future," 3 Wis. L. Rev. 807, 873 (1990).

Recent conversations by Wenig with experienced divorce lawyers in Connecticut suggest that there may be a 'glass ceiling' for financial awards for women in Connecticut, imposed without regard to husband's own income and wealth, duration of marriage, or standard of living established during the marriage, and with an implicit reaction of 'enough is enough, already.' For an egregious example, see Wood v. Wood, 165 Conn. 777, 345 A.2d 5 (1974) (wife was awarded husband's interest in their $125,000 home and $24,000 annual alimony; husband's position as corporate president and $760,000 of his assets (in addition to the home) were all accrued earned during the twenty year marriage and, for all but the final year or two of the marriage, while the couple were domiciled in California, a community property state). The lawyers did not all agree, however, on the ceiling level and it may be moving up.

M. Wenig, supra, 3 Wis. L. Rev. 873 n. 289.

The plaintiff argues that the assets and income in this case should be divided on an equitable basis: i.e., an equal division. She claims that the marital assets are $90,000,000 as of the last day of trial, and she is entitled to half, i.e., $45,000,000, by reason of her nonmonetary contributions, the Equal Rights Amendment to the Connecticut constitution and the theory that a marriage is an equal partnership.

The defendant on the other hand claims that a transfer to the plaintiff of $8,300,000 of property along with the payment of $250,000 a year alimony is more than enough to keep the plaintiff in the lifestyle to which she is accustomed. The defendant claims that the plaintiff's station in life requires a certain amount of needs and that those needs and more can be met by the income from a lump sum payment. In addition, she has certain capital needs for houses, cars, personal property, etc., which can also be met by a lump sum distribution to her. That type of property, it is conceded, will not generate income. The total of the remaining lump sum distribution properly invested will generate sufficient monies and the income, therefrom, will be sufficient to keep her in the standard of living to which she is accustomed. Therefore, the defendant argues that this satisfies the statutory requirements of meeting the plaintiff's "needs" under General Statutes 46b-81(c) and 46b-82 and compensates the plaintiff based on her "station in life."

The defendant claims that the $250,000 annual alimony, based on the plaintiff's 23 year life expectancy, capitalized at 5 1/2% interest using tables found in West's edition of the Connecticut General Statutes, translates to a present value of $3,200,000. This is in addition to the $8,300,000 of property distribution. This court does not agree with the mathematical assumption made by the defendant. "The value of each future, contingent or limited estate, income interest or annuity for life or lives in being shall, so far as possible, be determined by the rule, method and standard of mortality and of value set forth in the Commissioners' 1980 Standard Ordinary Mortality Table with interest at six percent per annum." General Statutes 12-353. In any event the present value of an income stream is not the issue here, it is the income itself that can be generated that is at the heart of "enough is enough."

The defendant characterizes his financial offer in lump sum property terms. He values the Key Largo Florida house at $950,000, the same value as the plaintiff's appraisal. Exhibit 58. He values the Stamford house, including the two extra building lots at $1,850,000 in his financial affidavit. The plaintiff offered an appraisal in the amount of $1,625,000. Exhibit 57. The defendant did not contest the plaintiff's written appraisal. Nor did the plaintiff seriously contest the defendant's $1,850,000 valuation. As a result there was no serious contest as to the real property evaluation. Assuming the $1,000,000 Stamford mortgage is paid off by the defendant, he is prepared to convey to the plaintiff the Florida and Stamford properties, a net value of $2,800,000. The court accepts this value of these properties. The defendant's settlement offer in his Claims for Relief is $11,500,000 broken down as follows: (1) $3,000,000 in real estate, furniture and furnishings, jewelry and nonincome producing property; (2) $5,300,000 investable property; and (3) $3,200,000 present value of $250,000 annual alimony. The defendant assumes $5,000,000 is invested at 9% producing $450,000 annual income in addition to the $250,000 alimony. The plaintiff would have $700,000 annual income. The defendant claims that this would easily provide her with an after tax amount greater than her "needs" on the expense side of her financial affidavit.

The defendant states that the plaintiff's "needs" are less than claimed and the expenses in her financial affidavit are inflated. He points to five facts in that regard: (1) the average annual spending of the plaintiff and defendant in the two years prior to the separation, 1993 and 1994, was $321,000; (2) the inclusion of mortgage costs should be eliminated from the plaintiff's financial affidavit since the defendant has offered to convey the entire $1,850,000 Stamford home to her and pay off the outstanding $1,000,000 mortgage at the time of the conveyance; (3) according to Exhibit 56 the annual cost of the plaintiff's portion of the GE travel was $22,000, far less than what her affidavit has as current expenses for travel (Exhibit 56 is an one page document reconstructed from Exhibit 55, a 101 page copy of GE travel records of the parties for the years 1993 through 1995 totaling $397,756.03); (4) the $120,000 annual expenses for the plaintiff's "clothing and shoes" are "Imelda-sized" and the plaintiff never spent that kind of money on herself; and (5) there is no proof that the plaintiff gave to charity in 1996 the $55,000 per year shown in her financial affidavit as expenses.

Prior to the December, 1995 separation the parties had a relatively modest lifestyle. In contrast the defendant points to his financial affidavit which shows total current annual living expenses of $89,760. It should be noted that the monthly rent of $1,800 included in that figure will no longer be paid since the defendant has contracted to purchase a $1,800,000 house in Greenwich. Presumably, the monthly cost to maintain that mortgage-free house would at least double, based on a comparison of the housing costs in the parties' affidavits. This would result in the defendant's current annual living expenses being in the range of $110-$120,000 per year.

The plaintiff's current financial affidavit lists "total basic monthly expenses at $53,215.16" which is $638,600 annually. Included in this sum are two items referred to by the defendant: (1) mortgage (interest only at 7 1/2%) $6,800 per month ($81,600/year); and (2) travel and vacationing $8,000 per month and restaurants (while traveling) $750 per month, a total of $105,000/year. Using the defendant's arguments, there would be a reduction in the plaintiff's annual total basic expenses of $81,600 for mortgage and $83,000 for travel costs in excess of the previously paid amount by GE of $22,000 annually. This would reduce the plaintiff's basic annual expenses as shown in her financial affidavit to $474,000. The defendant notes that the plaintiff travelled extensively in 1996, the first full year post separation and spent $25,000 for the following trips: Antarctica $5,000, Mexico $3,000, Arizona $2,000, Minnesota $4,000, France $4,000, Germany $4,000 and Costa Rica $3,000.

The defendant argues that this $474,000 actually is an increase from her pre-separation standard of living by more than 50%. An award to the plaintiff of sufficient funds for her to maintain her pre-separation standard of living would be in accordance with case law. Blake v. Blake, supra, 207 Conn. 232; Morris v. Morris, 132 Conn. 188, 193, 43 A.2d 463 (1945). The defendant further notes that courts do not look favorably on an extravagant standard of living post-separation for the purpose of obtaining a higher permanent alimony award. Stoner v. Stoner, 163 Conn. 345, 354, 307 A.2d 146 (1972); Levy v. Levy, 5 Conn. App. 185, 187, 497 A.2d 430 (1985). The plaintiff argues that the sum set forth in her financial affidavit is the station in life to which she is entitled. "During their married life, the plaintiff and the defendant enjoyed a high standard of living, vacationing at the shore each summer, taking frequent trips to the city of New York and Puerto Rico and residing in a home located at 88 Terry Road, Hartford, valued at between $75,000 and $85,000." Stoner v. Stoner, supra, 350. This court notes that Stoner quotes 1970 prices.

To assist the court in resolving this factual dispute both parties offered evidence of past expenditures. There was no live-in help, no full time help and many household chores were done by the parties themselves. They had no second home. The court heard no evidence of lavish entertainment other than the two annual Christmas parties. Except for visits to their parents, the parties' vacations were all paid for by GE. The Pinnacle Club trips were pure vacation albeit under GE's umbrella with the Wendts and others acting as "hosts" for other successful GE executives and their spouses.

Exhibit 93 outlined the expenses of the plaintiff and defendant while they resided in the Stamford house without the children. The mortgage expense noted in Exhibit 93 will not recur since the defendant will pay off the mortgage on the Stamford house immediately upon the decree. There were large one time charitable donations which will not recur. The life insurance expenses and certain child expenses paid in 1994 and 1995 will not have to be paid by the plaintiff. After deducting these costs from the total in Exhibit 93, the net expenses for the plaintiff and the defendant living at the Stamford house was $303,000 in 1994 and $337,000 in 1995. The court finds that these amounts have been established by credible evidence.

The defendant, in his Post Trial Brief, attempts to allocate these expenses, an average of $321,000 for those two years, between the parties. Of that $321,000, $70,000 went for the Erskine Road home expenses which should now be placed on the plaintiff's side of the ledger. The defendant then allocates the remaining $251,000, 2/3 to the plaintiff and 1/3 to the defendant, placing an additional $167,000 on the plaintiff's side of the ledger. The defendant concludes that the past expenditures actually made by the parties for the two full years before their separation, 1993 and 1994, demonstrate "total basic monthly expenses" for the plaintiff of $19,750 ($237,000 annually).

The court finds this argument of the defendant facile for two reasons: (1) the 1/3 allocated to the defendant from the $251,000 would be $83,666, without housing costs, is far in excess of his needs shown on his current financial affidavit ($7,480/month less $2,100 total rental housing costs leaves $5,380/month for basic living expenses, $64,560 per year), and (2) the one-third/two-thirds allocation is totally arbitrary. It is based on speculation and the mere choice of a round number, ever so slightly tilted in favor of the plaintiff in order that the defendant's calculations would have the outward appearance of "fairness."

This court has already concluded that the plaintiff has puffed up her contributions to GE. It is equally clear that her expenses have increased substantially post separation. Whether that increase is a "puffing up" of expenses or the actual expenses incurred is a conclusion this court does not have to reach. The plaintiff is free to spend what she wants. Neither this court nor the defendant has any right to limit either the amount or the object of those expenditures. This court believes that the award of periodic alimony being ordered, in addition to the income that can be generated from the income producing property awarded to the plaintiff pursuant to this decision, is sufficient for the plaintiff to maintain her "station in life."

For the theory of "enough is enough" to have any viability in Connecticut one of the statutory factors must be given more weight. Further, the theory must operate on the premise that the phrase, "needs," means her financial needs and once those financial necessities have been met then there can be no further award regardless of the amount of contribution made by the wife in nonmonetary terms to the acquisition, appreciation or preservation of the assets of the parties.

It is well founded in Connecticut that all of the factors under General Statutes 46b-81 and 46b-82 must be considered by the trial judge. It is not necessary that any decision set forth, in detail, the balancing done by the trial court in reaching its conclusion nor is it necessary to outline each of the factors that were considered or which factors weighed more heavily than the others. Caffe v. Caffe, supra, 240 Conn. 82-83.

The record rebuts the plaintiff's contention that, in exercising its discretion, the trial court failed to consider the relevant statutory criteria. The court expressly referred to the relevant statutory provisions, General Statutes 46b-81 and 46b-82. Our case law is clear that a trial court is free to weigh the relevant statutory criteria without having to detail, in its memorandum of decision, what importance it has assigned to the various statutory factors.

Tutalo v. Tutalo, 187 Conn. 249, 251-52, 445 A.2d 598 (1982).

First, read logically, the statute places no particular emphasis on any one factor. Furthermore, this court has explicitly stated that 'no single criterion is preferred over all the others.'

Sands v. Sands, 188 Conn. 98, 102, 448 A.2d 822 (1982).

A decision which merely indicates that "this court has carefully considered the factors of General Statutes 46b-81(c) and 46b-82 in entering the following orders" is sufficient and has withstood appellate scrutiny for years.

Financial orders in a dissolution decree are crafted on the basis of statutory mandates and equitable considerations and as such are subject to the balancing of equities, which requires a careful consideration of the effect each order has on another; the orders are interwoven and interdependent on each other.

Standish v. Standish, 40 Conn. App. 298, 301, 670 A.2d 1330 (1996).

This theory was first put forth in graphic artistic form in 1984 by then Appellate Court Judge T. Clark Hull, later a Justice of the Supreme Court. "The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). This mosaic metaphor, applied for the first time in Connecticut, has been used extensively by trial judges and repeated in both Appellate Court and Supreme Court decisions with regularity. It is rock solid Connecticut law. Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989); Jaser v. Jaser, 37 Conn. App. 194, 205, 655 A.2d 790 (1995); Tremaine v. Tremaine, 34 Conn. App. 785, 792, 643 A.2d 1291 (1994).

What is the derivation of Judge Hull's mosaic metaphor? Law, descended from Moses (mosaic law), has found its way into our earliest reported cases. David Dagget, who served as a Judge of the Supreme Court of Errors from 1797 until 1805, argued as an attorney, mosaic law, in an inheritance case in 1808. "Ages before the dawn of Grecian literature, or the rise of the Roman power, the Almighty himself established the rights of inheritance. . . . 'And Moses brought their cause before the Lord. And the Lord spoke unto Moses, saying: The daughters of Zelophehad speak right; thou shalt cause the inheritance of their father to pass unto them.'" Hillhouse v. Chester, 3 Day (Conn.) 166, 172-73 (1808).

The first reference made to "mosaic" by the Supreme Court was in a 1905 murder case. In discussing the historical derivation of the statute, that no person shall be convicted of a capital offense without the testimony of two or more witnesses, the court noted that most such offenses were established in 1642 and "were based upon the Mosaic Code, the passage of scripture requiring the punishment of death being cited with each offense." The issue in question was based on the scriptural passage contained in Deuteronomy, Chapter 17, verse 6. State v. Marx, 78 Conn. 18, 21-22, 60 A. 690 (1905). Justice Hull's interest in scripture may have prompted his use of "mosaic."

The next reference was in 1936. "A learned dissertation, in the appellant's brief, upon the history and philosophy of usury laws from Mosaic times to the present, while interesting and informing upon the general subject. . . ." Atlas Realty Corporation v. House, 120 Conn. 661, 665, 183 A. 9 (1936). Justice Hull was quite interested in history.

In 1974 when Justice Hull was a Judge of the Superior Court, the Supreme Court first used mosaic in its artistic sense.In referring to the improper participation by a member in Zoning Commission deliberations, the court used the phrase, "mosaic of impropriety, illegality, and basic inequity." (Internal quotation marks omitted.) Dana-Robin Corp. v. Common Council, 166 Conn. 207, 218, 348 A.2d 560 (1974). The Supreme Court, having tweaked Justice Hull's interest in scripture and history, now gave Justice Hull an opportunity to reveal his artistic side, often demonstrated by his use of a "colorful" phrase.

Since the Supreme Court used mosaic in the Hebraic legal sense as well as in the artistic sense, it was not too difficult a jump for Justice Hull to combine those two phrases in Ehrenkranz, where the defendant was an orthodox rabbi with complicated finances. Justice Hull may also have been influenced by a well known epic poem, "Sailing to Byzantium," written by William Butler Yeats. "O sages standing in God's holy fire/As in the gold mosaic of a wall/Come from the holy fire, perne in a gyre/And be the singing masters of my soul."

A mosaic is an ancient form of art derived from the latin word, musivus, meaning, of a muse, artistic. Webster's Seventh New Collegiate Dictionary (1967). Mosaic is "a surface decoration made by inlaying small pieces of variously colored material to form pictures or patterns." Id. Mosaics were common in the Roman Empire as floor and wall decorations in public buildings and homes. A plaster compound was laid on the surface and small bits of colored stone or tile were placed in the plaster which was then allowed to harden. The plaster dried and the colored stones formed a picture which from a distance, blended into a whole. Upon viewing a mosaic close up, it generally would not be possible to determine the nature of the picture. The mosaic would appear to be a jumbled together series of stones and/or tiles of irregular shapes, colors and sizes. The pieces of stone did not fit exactly together as in a picture puzzle. Many different stones could occupy a given space. From a distance one wrongly placed, sized or colored stone or tile occupying a space would not affect the entire picture. A missing stone or two, equally, would not affect the entire picture. It may also be that the missing stone or tile would be in a crucial portion of the picture, such as an eye. In that case the missing or incorrect piece could affect the ability to create a cohesive whole. A similar style has been used in impressionist paintings in the late 1800's, called pointillism: "The practice or technique of applying dots of color to a surface so that from a distance they blend together." Id.

This mosaic metaphor to some extent carries over to modern times. Newspaper photographs when examined closely, are merely a series of dots of equal size and shape. A few missing dots caused by an ineffective printer may not affect the entire photograph. In a modern example, the pictures on television screens and/or computer monitors are a series of uniform dots called pixels. Those pixels form a cohesive whole. The mosaic metaphor was last used referring to the patchwork of evidence in a criminal case in Miller v. Commissioner of Correction, 242 Conn. 745, 806, 700 A.2d 1108, and in a dissolution case, Hughes v. Hughes, 1997 Conn. Super. LEXIS 2134, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 337478 (July 30, 1997, Ballen, J.) (1997 Ct. Sup. 8081, 8084).

It is noteworthy that Justice Hull did not choose the metaphor of an arch or chain. Like a mosaic each stone or link may be of a different shape or size, and each is important in the creation of a whole. Unlike a mosaic, the failure of any link in a chain or any keystone in an arch would cause the creation to fail.

Therefore, the concept of Ehrenkranz v. Ehrenkranz is that each of the components must be given certain weight. Some components will be larger than others and some components may very well be missing. As long as a cohesive whole is created, there should be no effect on the decree. The mosaic metaphor therefore means that each criterion in General Statutes 46b-81(c) and 46b-82 is to be considered in the decision but may not be given equal weight. Some of those factors can be larger, smaller, irregular size, shape and location and may very well not even exist at all, but the dissolution of marriage judgment still will have complied with the statutory requirements.

Not all errors disturb the other financial orders and require a new trial. Keeys v. Keeys, 43 Conn. App. 575, 577-78, 684 A.2d 1214 (1996); Wolf v. Wolf, 39 Conn. App. 162, 175, 664 A.2d 315 (1995); Grimmeisen v. Grimmeisen, 37 Conn. App. 545, 546, 657 A.2d 237 (1995). However, many errors made by a trial court in financial orders require reversal on appeal and a new trial. Michel v. Michel, 31 Conn. App. 338,341, 624 A.2d 914 (1993); Mulholland v. Mulholland, 26 Conn. App. 585, 590, 602 A.2d 1054 (1992); Trella v. Trella, 24 Conn. App. 219, 223, 587 A.2d 162 (1991); Watson v. Watson, 20 Conn. App. 551, 557-58, 568 A.2d 1044 (1990).

Despite the consistent use of the mosaic metaphor, Justice Hull mixed the metaphors of a weave, "financial orders are entirely interwoven," with a "carefully crafted mosaic." Sunbury v. Sunbury, supra, 210 Conn. 175. See Mulholland v. Mulholland, supra, 26 Conn. App. 590 and Michel v. Michel, supra, 31 Conn. App. 341 for the unintended continuation of the mixed metaphors. Judge Hennessey corrected the mixed metaphor. "When we disrupt a single tile in this mosaic, we place in doubt the propriety of other financial orders that the trial court may have deemed equitable in relation to the entire distribution scheme." Wolf v. Wolf, supra, 39 Conn. App. 174. This "place in doubt" phrase is consistent with the mosaic metaphor, for one tile in an incorrect place, size, color or shape does not necessarily destroy the mosaic, it just places its effect in doubt. Tyc v. Tyc, 40 Conn. App. 562, 569, 672 A.2d 526 (1996). "The symmetry and harmony of the tiles in the original design were so disturbed by the modification that we must reverse the original judgment and order a new trial." Jaser v. Jaser, supra, 37 Conn. App. 205. In another case the remand was limited due to the error in the valuation of the major asset of the parties, the marital home. This error did not disturb the other financial orders relating to alimony and child support. "The case is remanded for a new hearing limited to the issue of the allocation of the assets and liabilities of the parties." Cuneo v. Cuneo, 12 Conn. App. 702, 711, 533 A.2d 1226 (1987).

"An award of a larger percent of the total marital assets to one party is not a per se abuse of discretion." Siracusa v. Siracusa, 30 Conn. App. 560, 567, 621 A.2d 309 (1993). Siracusa involved a nine year marriage in an eleven year relationship where both parties worked in defendant's moving business. No error was found in award to the wife of 53% of the marital estate. In Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983), a claimed award to the wife, custodian of two minor children, of 90% of marital assets was not error in a dual wage earning family where the major asset was the $48,000 marital home. The court in Damon v. Damon, 23 Conn. App. 111, 113, 579 A.2d 124 (1990), upheld an award to the wife of 85% of the marital assets in a 34 year marriage with seven children. The largest asset was the marital home. No value of the separate assets was reported. In Burns v. Burns, 41 Conn. App. 716, 720, 677 A.2d 971 (1996), a claimed award to the wife of 90% of net worth was upheld in a 30 year marriage. In another example, no error was found in awarding the total value of a business to the husband, despite the wife's stock ownership and contribution of labor to the establishment and operation of the husband's business in a 25 year marriage with four children, one age 17. The wife demanded an assignment of one-half of the value of the business. The husband received the entire $30,000 business and one half the net value of the only other mentioned asset, a $50,000 house. Fucci v. Fucci, 179 Conn. 174, 182-83, 425 A.2d 592 (1979). In Jewell v. Jewell, 176 Conn. 222, 223, 405 A.2d 653 (1978), the most significant asset, the house, was awarded to the wife in a 26 year marriage with four children, two of them minor. The court in Ross v. Ross, 172 Conn. 269, 274, 374 A.2d 185 (1977), upheld the award of the house to the wife where the value inferred from the decision was more than the husband's conceded $300,000 net worth. In Ayers v. Ayers, 172 Conn. 316, 318, 374 A.2d 233 (1977), $48,600 equity in the home was awarded to the wife. The husband by inference received a $3,000 savings account, the only other asset. The case of Levy v. Levy, 5 Conn. App. 185, 497 A.2d 430 (1985), involved a six year childless marriage. The wife 33, and the husband 36, both were in good health and lived an extravagant lifestyle. The husband's premarital business more than doubled in value during the marriage to $9,000,000 with other assets owned by the husband worth another $1,000,000. No error was found in awarding the wife rent free use of the husband's condominium for three months, $15,000 lump sum, contents of condominium and nonmodifiable alimony of $600 per week for three years. The wife contributed no tangible property to the combined estate and worked as a clerk and later purchasing agent for the husband's company for five to six years. She assisted with company business on trips and drew a substantial salary.The appellate court concluded: "It is clear from the memorandum of decision that the trial court concluded that the plaintiff contributed little to her comparatively brief relationship with the defendant and that the value of her contribution to the increasing success of his business was slight indeed." Id., 188. In Steinmann v. Steinmann, 121 Conn. 498, 502, 186 A. 501 (1936), a lump sum award of $7,500 to the plaintiff wife, slightly more than one-fourth of defendant's estate, was not an invalid exercise of the court's discretion in a thirty-four year marriage with six children, one a minor. The plaintiff was hospitalized at various times for mental breakdowns which the trial court found to be caused by the defendant's ill treatment of her. The $7,500 lump sum left the plaintiff wife with $28,600 and the defendant husband $21,000, a 57%/43% division.

"Enough is enough" is not a statutorily designated factor. "Station," "contribution of each of the parties to the acquisition, preservation and appreciation in value of their respective estates" and "needs" are factors statutorily designed. They are permitted to be used to create a mosaic.

"Enough is enough" is therefore not a proper legal concept under General Statutes 46b-81(c) and 46b-82. There is no limitation as to the amount of alimony, periodic alimony or division of property that can be awarded to a person who is the nonmonetary contributor in a long term high asset marriage. There is no mathematical formula in Connecticut for awarding property. Under Connecticut law the entire assets of the parties can be awarded to one party. Vandal v. Vandal, 31 Conn. App. 561, 565, 626 A.2d 784 (1993).

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