CONNECTICUT IS NOT A COMMUNITY PROPERTY STATE
The seven pure community property states are California, Texas, Nevada,
Washington, Idaho, New Mexico and Arizona. A form of community property based on the
Napoleonic code is in effect in Louisiana. Wisconsin became a quasi-community property
state in 1986. All have become community property by statute. Connecticut has been
declared an "all-property" state by case law interpretation of our equitable
division statute. Krafick v. Krafick, supra, 234 Conn. 799. Connecticut has not
enacted a community property statute. The passage of the 1973 acts was a major change in
the Connecticut divorce scheme. "The thrust of this legislation is to reconsider all
aspects of the laws pertaining to divorce and legal separation." Exhibit 115. A pure
no fault, one ground statute, first proposed, was amended by a series of compromises
during the 1973 legislative session. The current statutory scheme was approved in 1973 and
continues essentially unchanged to this day. The court has examined the testimony before
the Judiciary Committee as well as the legislative debate. No member of the General
Assembly in either committee testimony or on the floor mentioned a community property
concept. The Chairman of the Family Law Section of the Connecticut Bar Association
testified twice and did not mention community property even though he was asked about
no-fault experience in two community property states: California and Texas.
Only two representatives of the National Organization for Women
testified and neither requested the adoption of community property. The only person to
mention community property was plaintiff's trial counsel. "Another suggestion which I
know will never be passed, but pass this 'No-Fault' bill but add community property to our
law." Exhibit 115, Page 585-86. "As I said earlier I would be in favor of the
bill if somehow we could secure the financial well being of the wife and the child. And
this bill does not do it." Exhibit 115, Page 587.
The 1973 bill's main purpose was to eliminate the adversary nature of
the current divorce laws. Exhibit 115, Page 202. In doing so the drafters were required
"to reconsider all aspects of the laws pertaining to divorce and legal separation in
Connecticut. It was the feeling of the section that drafted this legislation that the
current Connecticut Laws work substantial hardships in many instances on the parties to
divorce and separation in proceedings and to their children and to the proper
administration of justice and the bill has been drafted with those considerations in
mind." Exhibit 115, Page 207. As the act was first drafted, the issue of fault was
not to be considered at all. As a compromise an additional ground for dissolution was
added to the statute, i.e., "the marriage has broken down irretrievably."
General Statutes § 46b-40(c)(1). The other nine grounds were retained. Fault was
permitted to be considered in the determination of alimony and division of property under
General Statutes §§ 46b-81(c) and 46b-82 ("Causes for the annulment,dissolution of
the marriage or legal separation"); initial orders of child custody under General
Statutes § 46b-56(b) ("The court may take into consideration the causes for
dissolution of the marriage or legal separation if such causes are relevant in a
determination of the best interests of the child. . . "); but fault is not a factor
in determining child support under General Statutes § 46b-84(c). The major focus of the
entire legislative consideration centered on fault and rendering the statutes gender
neutral. "The financial aspect of the law remains essentially unchanged."
Exhibit 115, Page 209. "The standards, however, of making alimony awards are the same
as those existing under the current law." Exhibit 115, Page 1465. The legislature was
well aware of the effect of the pending ERA. Exhibit 115, Page 1483.
Committee testimony from an attorney speaking for the Connecticut
Women's Political Caucus was received referring to the view of the National Women
Political Caucus and no mention of community property was contained in those remarks. The
thrust of the attorney's expressed concerns was noncompliance with orders of child support
and alimony. Exhibit 115, Page 233. In addition, the attorney did ask that the bill take
into consideration the nonfinancial contributions of a woman. This factor, of course, was
not specifically contained in the amended statute but was later judicially determined to
be within the "contributing" criteria. O'Neill v. O'Neill, supra, 13 Conn.
App. 300. This witness concluded her testimony, "I feel that a bill like this is
necessary and I think I can adequately speak for most of the women that I know in the
convention in saying that most of the portions in this bill would be very very acceptable
to them and I urge that you report the bill out." Exhibit 115, Page 215.
The legislature considered community property amendments to the marital
division statutes in 1978. H.R. 78-104. These amendments, as proposed, never made it out
of committee, and thus were never voted on by either the House of Representatives or the
Two other legislative efforts regarding community property have been
made in the last decade. An advisory commission to the legislature was appointed in 1985
to study the Uniform Marital Property Act. Spec. Acts 1985, No. 85-106, amended by Spec.
Acts 1986, No. 86-60. A report favorable to the adoption of a form of community property
in the division of marital assets was proposed. No legislative enactment followed. Another
study was authorized by the legislature, on the issue of community property and the
ramifications and advisability of its adoption in Connecticut. Substitute Bill 1119 (Jan.,
1995). The study was never submitted to the legislature. No legislative enactment has
followed the 1995 study.
Legislative silence is a valid tool in interpreting statutes. "The
legislature is presumed to be aware and to have knowledge of all existing statutes and the
effect which its own action or nonaction may have on them." Dodd v. Middlesex
Mutual Assurance Co., 242 Conn. 375, 386, 698 A.2d 859 (1997).
Since the passage of General Statutes § 46b-81(c), the legislature
has amended its original equitable property distribution scheme by three public acts: P.A.
75-331 (authorized court to pass title to real property to either party or a third party
or to order sale of property and added provisions relating to transfer or sale of
property); P.A. 78-230 § 36 (divided sections into subsections and changed the wording
slightly); and P.A. 78-230 § 54 (transferred to § 46b-81 the provision of § 46-51 and
revised other sections to reflect this transfer).
Since the passage of General Statutes § 46b-82 the legislature has
amended its original equitable income distribution scheme by three public acts: P.A.
78-230 § 37 (restated provisions of original act); P.A. 78-320 § 54 (transferred to §
46b-82 the provisions of § 46-52 and revised other sections to reflect this transfer);
and P.A. 83-527 § 1 (added provision that court may order either party to contract with a
third party for periodic payments or payments contingent on a life to the other party). No
legislative amendment to the 1973 equitable distribution scheme remotely attempts to
convert Connecticut into a community property state.
Since 1973 hundreds of trial court and appellate court decisions have
been rendered, and none remotely attempt to convert Connecticut into a community property
state. "The legislature is presumed to be aware of the interpretation of a statute
and . . . its subsequent nonaction may be understood as a validation of that
interpretation. . . . This presumption is strengthened when in question." Martin
v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997);Jolly Inc. v. Zoning Board of
Appeals, 237 Conn. 184, 200-01, 676 A.2d 831 the legislature has affirmatively
reenacted the statute after the interpretation in question." Martin v. Plainville,
240 Conn. 105, 110, 689 A.2d 1125 (1997);Jolly Inc. v. Zoning Board of Appeals, 237 Conn.
184, 200-01, 676 A.2d 831 (1996). ]
Connecticut is not a community property state under the plain meaning
of its statutes. The trial court has no power to create a community property scheme. The
legislature acted in 1973 and created an equitable distribution scheme. "We will not
infer that the legislature intended to enact a significant change in existing law without
an unequivocally expressed manifestation of legislative intent." Jupiter Realty
Co. v. Board of Tax Review, 242 Conn. 363, 370, 698 A.2d 312 (1997).
THERE IS NO STATUTORY PRESUMPTION OF EQUAL DIVISION REGARDLESS OF THE
AMOUNT OF RESOURCES
The plaintiff claims that all property division in Connecticut
dissolutions must start with a presumption of a fifty-fifty division regardless of the
amount of resources and the length of the marriage. After that presumption is considered
and not found to be appropriate, then the division of property standards under General
Statutes § 46b-81 will be applied. In that event a division different than fifty-fifty
will be determined by the exercise of the trial court's discretion applying the statutory
criteria. The plaintiff makes four arguments to support this position: (1) the 1974 Equal
Rights Amendment to the Connecticut constitution, (2) human capital theory of nonmonetary
contributions under O'Neill v. O'Neill, 13 Conn. App. 300, 311, 536 A.2d 978, (3)
marriage is a partnership, and subject to uniform partnership rules, and (4) equitable
means equal under the Connecticut equitable distribution scheme.
The defendant, on the other hand, claims that the property division
statute, General Statutes § 46b-81(c), creates an equitable division scheme. It was never
intended that there be a presumption of fifty-fifty division and the statute does not
contain such a presumption. The plain reading of the statute prevents a fifty-fifty
presumption from existing in Connecticut's equitable distribution scheme.
There are three general categories of laws for marital property
division. These categories are community property, "dual property" (statutes
define what is marital and separate property), and "all-property." There is also
a fourth form, common law title, which Connecticut followed until 1877. Mississippi still
has some vestiges of common law title property ownership and distribution at dissolution.
The following are the all-property states: Alaska, Connecticut, Hawaii,
Indiana, Iowa, Kansas, Massachusetts, Michigan, Montana, New Hampshire, North Dakota,
Oregon, South Dakota, Vermont and Wyoming.
Community property states have been created only by statute. Community
property states, for the most part, are located in the western United States and have
little traditional English common law, i.e., California, Texas, Idaho, New Mexico, Nevada,
Arizona, Washington, Wisconsin and a form of community property based upon the Napoleonic
code in Louisiana.
This court found the following passage helpful, in understanding these
different property concepts:
Existing American law offers two models for dividing marital property
on divorce. The dominant model is 'equitable distribution,' in which the governing statute
provides a list of 'factors' that the trial judge is authorized or directed to consider in
deciding the fairest allocation of the property. These statutes typically provide the
judge no guidance in weighing the relative importance of the various factors. Although
these lists often include eight or ten factors, most of the factors are specific examples
of two basic but conflicting principles: property should be allocated in proportion to the
spousal contributions to its acquisition, and property should be allocated according to
relative spousal need.
These principles conflict because the relative contribution of the
spouses to the acquisition of marital property is usually inversely related to their
relative financial need at divorce. Factors other than contribution or need, when
included, are of ambiguous significance. The judge may resolve this difficulty by dividing
the property equally, which some state provide as the presumptive result. Other states,
however, forbid an equal division presumption, further confounding a judge who attempts to
apply the conflicting or ambiguous factors. The conscientious judge is thus expected to
begin with no idea of how to divide the property, which is where he or she may perhaps
The competing model, followed formally in a few states including
California, imposes a rule of equal division that is essentially invariable except where
the financial fraud of one spouse would otherwise deprive the other of a true half share.
It thus leaves little to judicial discretion. Some courts in equitable discretion states
follow this rule informally by applying a presumption of equal division that is rarely
rebutted, although inconsistency may result because other courts in the same state adjust
the allocation more freely.
American Law Institute, Principles of the Law of Family
Dissolution: Analysis and Recommendations, pp. 223-24 (Tentative Draft
No. 2, 1996).
The above "rule of equal division" has not been adopted in
Connecticut. It is the last sentence of the above stated "Principles" that the
plaintiff wishes this court to adopt.
There is no Connecticut case, either appellate or trial court, that
supports the plaintiff's claim of a fifty-fifty presumption. In determining the portion of
the defendant's estate which shall be awarded to the plaintiff as alimony, "there is
no inflexible standard." Olmstead v. Olmstead, 85 Conn. 478, 480, 83 A. 628
In order to determine whether General Statutes §§ 46b-81(c) and
46b-82 contain a presumption of fifty-fifty division, rules of legislative interpretation
must be applied.
The general rule of statutory interpretation is well settled.
When we set out to interpret the meaning of a statute, 'our fundamental
objective is to ascertain and give effect to the apparent intent of the legislature. . . .
In seeking to discern that intent, we look to the words of the statute itself, to the
legislative history and circumstances surrounding its enactment, to the legislative policy
it was designed to implement, and to its relationship to existing legislation and common
law principles governing the same general subject matter.'. . . Conway v. Wilton, 238
Conn. 653, 663, 680 A.2d 242 (1996). Furthermore, 'when a statute is in derogation of
common law or creates a [right] where formerly none existed, it should receive a strict
construction and is not to be extended, modified, repealed or enlarged in its scope by the
mechanics of [statutory] construction. . . . In determining whether or not a statute
abrogates or modifies a common law rule the construction must be strict, and the operation
of a statute in derogation of the common law is to be limited to matters clearly brought
within its scope.'. . . Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289-90, 627 A.2d
Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 379-80, 698 A.2d
1. Words of the statute itself:
"It is well settled that a statute must be applied as its words
direct." Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397, 400, 689
A.2d 1132 (1997). "If the statutory language is clear and unambiguous, there is
no room for construction." New Haven v. United Illuminating Co., 168 Conn. 478,
485, 362 A.2d 785 (1975).
'In construing any statute, we seek to ascertain and give effect to
the apparent intent of the legislature. . . . It is an axiom of statutory construction
that legislative intent is to be determined by an analysis of the language actually used
in the legislation. . . . When the language of a statute is plain and unambiguous, we need
look no further than the words themselves because we assume that the language expresses
the legislature's intent.'
Rizzo Pool Co. v. DelGrosso, 240 Conn. 58, 73-74, 689 A.2d 1097
Santos v. F.D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83
General Statutes § 46b-81(c) contains 18 separately listed
criteria. No language of presumption is contained in the statute. The claimed equal
division presumption is not part of the statutory criteria. The plain language of the
statute supports the defendant's claim. Based on the plain language of General Statutes §
46b-81(c), there is no presumption in Connecticut that marital property should be divided
equally prior to applying the statutory criteria. So too, the periodic alimony statute,
General Statutes § 46b-82, contains language virtually identical to the property division
statute. Based on the plain language of General Statutes § 46b-82, there is no
presumption in Connecticut that income should be divided equally prior to applying the
This court has found one Connecticut dissolution case that discusses
the establishment of a presumption and it is in the area of custody by an abusive spouse. Knock
v. Knock, 224 Conn. 776, 785, 621 A.2d 267 (1993). The only reference to presumption
was contained in a study mentioned in the opinion. The Knock case involved an appeal to
the Supreme Court by counsel for the minor child and the plaintiff husband in a contested
dissolution and custody action. The joint claims by the appellants were that the trial
court improperly admitted into evidence the testimony of a controversial witness, a
psychologist who held a doctorate in sociology, masters in social work and was a
recognized expert on the subject of battered woman's syndrome. The Supreme Court held that
the testimony on battered woman's syndrome was relevant to the determination of custody in
order to determine if the defendant wife fit the model. The custody award to the wife was
upheld on the grounds that the trial court applied the relevant statutory criteria under
General Statutes § 46b-56(b). That statute contains no presumption. The unanimous
opinion, citing a number of treatises and studies regarding the detrimental effect on a
minor child being placed in the custody of a parent who batters the other parent
concluded, "In light of the above studies, it appears that the presence of battering
in the household has, at a minimum, some effect on the parenting skills of both spouses
and the child's response to the parents even after their separation." Id., 786.
One of the studies considered was 1990 Concurrent Resolution 172 passed
by the United States Congress: "for purposes of determining child custody, credible
evidence of physical abuse of one's spouse should create a statutory presumption that it
is detrimental to the child to be placed in the custody of the abusive spouse."
(Internal quotation marks omitted.) Knock v. Knock, supra, 224 Conn. 785. Although
this report was one of the studies that influenced the Knock court, such a presumption was
not judicially adopted. Since the 1993 Knock decision, the legislature has been silent on
including such a presumption in the custody statute, General Statutes § 46b-56(b).
The intention of the legislature is found not in what it meant to say,
but in the meaning of what it did say. Colli v. Real Estate Commission, 169 Conn. 445,
452, 364 A.2d 167 (1975). Lukas v. New Haven, 184 Conn. 205, 212-13, 439 A.2d 949
(1981). If the language of the statute is unambiguous, the intent must be ascertained
from that language. Royce v. Heneage, 170 Conn. 387, 391, 365 A.2d 1109 (1976). If
there is no ambiguity in the language of the statute, it does not become ambiguous merely
because the parties contend for different meanings. Caldor, Inc. v. Heffernan, 183
Conn. 566, 571, 440 A.2d 767 (1981).
(Internal quotation marks omitted.) Lutrell v. Lutrell, 184 Conn.
307, 310-11, 439 A.2d 981 (1981).
Where the statutory language is clearly expressed, as here, courts must
apply the legislative enactment according to the plain terms and cannot read into the
terms of a statute something which manifestly is not there in order to reach what the
court thinks would be a just result. . . . Johnson v. Manson, 196 Conn. 309, 315, 493
A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787
(1986). 'It is not the province of a court to supply what the legislature chose to
omit. The legislature is supreme in the area of legislation, and courts must apply
statutory enactments according to their plain terms.'. . . Glastonbury Co. v. Gillies,
209 Conn. 175, 180-81, 550 A.2d 8 (1988).
Bona v. Freedom of Information Commission, 44 Conn. App. 622, 636, 691
n. 14 (1997).
There is no need to apply further rules of legislative interpretation
to this issue. "When the language of a statute is unclear, we may ascertain the
intent of the legislature by looking beyond the language to the statute's legislative
history and the purpose that the statute was intended to serve."Rizzo Pool Co. v.
DelGrosso, supra, 240 Conn. 74. Although this court has found that these two statutes
are clear and unambiguous on their face and no further legislative interpretation is
needed, because of the impact of the plaintiff's arguments, the court will examine the
issue further under the rules set forth in Dodd v. Middlesex Mutual Assurance Co.,
supra, 242 Conn. 379-80.
2. A "conjoint" reading of the statutes
It is not necessary to further examine this constitutional issue under
a "conjoint" reading test when the statute has been declared clear and
unambiguous. There is no wording in the equitable distribution statutes read together with
other statutes that requires a situational determination of ambiguity such as found by the
Supreme Court in Conway v. Wilton, 238 Conn. 653, 665, 680 A.2d 242 (1996) and Luce
v. West Haven, 238 Conn. 687, 690, 680 A.2d 259 (1996). The Connecticut Recreational
Land Use Act was found clear and unambiguous in Manning v. Barenz, 221 Conn. 256, 260,
603 A.2d 399 (1992) and yet the Supreme Court used a "conjoint" analysis to
determine, on closer scrutiny, that "owner" did apply to a municipality. See Sheff
v. O'Neill, supra, 238 Conn. 1, 26, 678 A.2d 1267 and S.& S. Tobacco &
Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 317, 617 A.2d 1388 (1992)
for the same type of "conjoint" reading.
3. Legislative history and circumstances surrounding its enactment
"The most persuasive evidence of the proper construction of the
statute is found in the history of the statute's wording." Connecticut National
Bank v. Giacomi, 242 Conn. 17, 59, 699 A.2d 101 (1997). Connecticut's equitable
distribution statute was adopted in 1973. P.A. 73-373. The statutory scheme, lack of
presumptions and delineation of the criteria to be applied has remained virtually the same
since the 1973 passage. Both the current equitable distribution scheme and the pre-1973
statutes gave the trial courts broad discretion in determining financial orders. Bielan
v. Bielan, 135 Conn. 163, 168, 62 A.2d 664 (1948); Wood v. Wood, 165 Conn. 777, 784
n. 2, 345 A.2d 5; Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031. The former
property division statute, General Statutes § 46-51 (also formerly General Statutes §
46-21 and General Statutes 5182) only permitted the court to order property to the wife.
The statute is now spouse neutral. None of the statutory changes in the property division
statutes since 1973 addressed or created a fifty-fifty presumption. P.A. 73-373, § 20;
P.A. 73-331; P.A. 78-230, § 36; P.A. 78-230, § 54. The former periodic alimony statute,
General Statutes § 46-52 (also formerly General Statutes § 46-21 and General Statutes §
5182), only permitted the court to order alimony to the wife. The statute is now spouse
neutral. None of the statutory changes in the alimony statutes since 1973 addressed or
created a fifty-fifty presumption. P.A. 73-373, § 21; P.A. 78-230, § 37; P.A. 78-230, §
54; P.A. 83-527, § 1.
"The superior court may assign to any woman divorced by such court
a part of the estate of her husband and, in addition thereto or in lieu thereof, may order
alimony to be paid from the husband's income. . . . In fixing the amount which shall be
allowed, the court shall take into consideration the amount of the husband's income,
whether the same is derived from property already acquired or from his personal daily
exertions or from both. . . ." (Internal quotation marks omitted.) Bielan v.
Bielan, supra, 135 Conn. 166-67, citing General Statutes § 5182.
In this state neither a husband nor a wife acquires, by virtue of
marriage, any interest in the real or personal property of the other during the other's
lifetime. General Statutes § 46-9; Cherniack v. Home National Bank & Trust Co.,
151 Conn. 367, 370, 198 A.2d 58; Stewart v. Stewart, 5 Conn. 316, 317, 321.
Tobey v. Tobey, 165 Conn. 742, 748, 345 A.2d 21 (1974).
There is nothing in the history of the wording of the two statutes
(both statutes combined in one statute prior to 1973) that supports the plaintiff's
4. The legislative policy it was designed to implement
The court can also look at the legislative policy the statute was
designed to implement. Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 379.
The legislature in the very next year, after creating the current equitable distribution
scheme in P.A. 73-373, approved the Equal Rights Amendment to the Connecticut
constitution. Article V of the Connecticut constitution amended § 20 of article first of
the Connecticut constitution effective November 27, 1974 by adding the word
"sex." "No person shall be denied the equal protection of the law nor be
subjected to segregation or discrimination in the exercise or enjoyment of his or her
civil or political rights because of religion, race, color, ancestry, national origin or
sex." "Physical or mental disability" was added to the Connecticut
constitution as an amendment in article XXI adopted November 28, 1984.
The ERA was labeled an "evolutionary" change in married
women's rights in 1988 by the Connecticut Supreme Court. "Article fifth of the
Connecticut constitution, amending § 20 of article first of the Connecticut constitution,
however, provides the constitutional underpinnings for contemporary departure from the
primary duty of one spouse to the joint duty of each spouse to support his or her
family." Yale University School of Medicine v. Collier, 206 Conn. 31, 35, 536 A.2d
588 (1988). "The people of this state and their legislators have unambiguously
indicated an intent to abolish sex discrimination." Evening Sentinel v. National
Organization for Women, 168 Conn. 26, 34, 357 A.2d 498 (1975).
The legislative history of the equitable distribution statute in 1973
states its policy. "'It does in fact for the first time in Connecticut's history
treat men and women equally. It does provide that the court look at them not as men and
women but as parties and look at their various obligations in their various capacities
with respect to earning and all the other aspects that should be considered.'" O'Neill
v. O'Neill, supra, 13 Conn. App. at 310. "'I was one of the strong supporters of
the equal rights amendment for women and I feel that this new divorce law will help the
rights of women in this state. . . . I support this bill . . . because I think it will
make it more equitable for the women of the state.'" Id. See also Exhibit 115 (1973
legislature history of General Statutes §§ 46b-81(c) and 46b-82). No trial or appellate
court in Connecticut has interpreted the equitable division scheme post ERA as
establishing a fifty-fifty presumption despite the plaintiff's claims that the 1974 ERA is
itself an interpretation of the equitable distribution statutes made by the legislature,
not the court. "'The legislature is presumed to aware of the interpretation of a
statute and . . . its subsequent nonaction may be understood as a validation of that
interpretation. . . . This presumption is strengthened when the legislature has
affirmatively reenacted the statute after the interpretation in question.'" Jolly,
Inc. v. Zoning Board of Appeals, 237 Conn. 184, 200-01, 676 A.2d 831 (1996).
Since approving the ERA, the legislature has had an opportunity to
revisit both equitable distribution statutes. It took no action to amend either statute to
reflect the plaintiff's claim of a presumption of equal division. "The legislature is
presumed to be aware and to have knowledge of all existing statutes and the effect which
its own action or nonaction may have on them." Windham First Taxing District v.
Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988). Since 1974 the legislature failed to
amend the equitable distribution scheme to include a fifty-fifty presumption. The
legislature knew how to amend the statutes to include such a presumption. It failed to do
so. Its failure to amend the statute is evidence of the legislature's intent not to create
a fifty-fifty presumption either by the ERA or the 1973 equitable distribution scheme. Martin
v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997); Conway v. Wilton, supra,
238 Conn. 678.
The legislative policies advanced by the passage of the 1973 equitable
distribution statutes were: (1) to create a spouse neutral environment, and (2) to
establish standards that can be applied to men and women alike. There is no legislative
history, brought to the attention of this court, that demonstrates that the results of the
application of the statutory criteria was to be an equal division of income or property or
a presumption of equal distribution of assets and/or income.
5. The statute's relationship to existing legislation
The court can examine the statute at issue and compare it to existing
legislation and common law principles governing the same general subject matter. Conway
v. Wilton, supra, 238 Conn. 663. The plaintiff is seeking a new interpretation of a
property and income division statute, not found clearly in any prior statute nor in any
reported case in the past 300 years. "While an action for divorce or dissolution of
marriage is a creature of statute, it is essentially equitable in its nature . . . ."
(Citations omitted; internal quotation marks omitted.) Sunbury v. Sunbury, 210 Conn.
170, 174, 553 A.2d 612; Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 146; Steinmann
v. Steinmann, 121 Conn. 498, 503, 186 A. 501 (1936). Certain of the court's powers
were derived from English common law. Krasnow v. Krasnow, 140 Conn. 254, 261, 99 A.2d
104 (1953); Stoner v. Stoner, supra, 163 Conn. at 356.
'When a statute is in derogation of common law or creates a
liability where formerly none existed, it should receive a strict construction and is not
to be extended, modified, repealed or enlarged in its scope by the mechanics of
[statutory] construction.' . . . 'In determining whether or not a statute abrogates or
modifies a common law rule the construction must be strict, and the operation of a statute
in derogation of the common law is to be limited to matters clearly brought within its
(Citation omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 627
"We will not infer that the legislature intended to enact a
significant change in existing law without an unequivocally expressed manifestation of
legislative intent." (Internal quotation marks omitted.) Jupiter Realty Co. v.
Board of Tax Review, 242 Conn. 363, 370, 698 A.2d 312 (1997).
A cause of action that is solely statutory in its derivation cannot
be judicially expanded to encompass grievances for which the legislature has not seen fit
to provide a remedy.
Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 251-52, 506 A.2d
Another line of cases strictly construe procedural marital
statutes. "The power and jurisdiction of this court over marriage contracts is purely
statutory and must be strictly construed." Barbaro v. Barbaro, 1 Conn. Supp. 76,
77 (1935). The marital statutory scheme should be followed in procedural matters. Livsey
v. Livsey, 11 Conn. App. 43, 46, 525 A.2d 546 (1987).
Nothing in the plain reading of the statutes, its legislative history,
the circumstances surrounding its enactment, its relationship to existing legislation and
the common law principles governing the same general subject matter supports the
plaintiff's claim. Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 379.
6. Identification of statute's principal audience
Some cases have held that "a useful guide to the meaning of
statutory language is an identification of the principal audience of that language - that
is, by answering the question: To whom is the statute primarily addressed?" State
v. Brown, 242 Conn. 389, 406, 699 A.2d 943 (1997); State v. Piorkowski, 236 Conn.
388, 408-09, 672 A.2d921 (1996). The audience of the equitable distribution scheme
would be those that use it on a day to day basis. Jupiter Realty Co. v. Board of Tax
Review, supra, 242 Conn. at 371. Daily users are judges, lawyers and marital
litigants. State v. Brown, supra, 407; State v. Piorkowski, supra, 409. What
has that "audience" done in response to the 1973 equitable distribution
statutory scheme? Litigate is the answer. Yet, the plaintiff cannot point to one case in
which this fifty-fifty presumption issue was ever litigated, let alone decided.
7. Statutes must create a harmonious whole and not create a bizarre
There are other statutory rules that can assist in legislative
interpretation. "The legislature is presumed to be aware and to have knowledge of all
existing statutes and the effect which its own action or nonaction may have on them . . .
we [also] presume that the legislature intended them to be read together to create a
harmonious body of law. . . ." (Citations omitted.) Stein v. Hillebrand, 240 Conn.
35, 42-43, 688 A.2d 1317 (1997); Sandor v. New Hampshire Ins. Co., 241 Conn. 792,
801, 699 A.2d 96 (1997).
"Each part or section [of a statute]should be construed in
connection with every other part or section so as to produce a harmonious whole. Thus, it
is not proper to confine interpretation to the one [part] to be construed." Sears,
Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 761, 699 A.2d 81 (1997).
"It is a basis tenet of statutory construction that the legislature did not intend to
enact meaningless provisions. . . . In construing statutes, we presume that there is a
purpose behind every sentence, clause or phrase used in an act and that no part of the
statute is superfluous. . . ." (Citations omitted; internal quotation marks omitted.)
Castagno v. Wholean, 239 Conn. 336, 346, 684 A.2d 1181 (1996). Statutes must also
avoid construction that lead to absurd, unworkable or bizarre results. Sanzone v. Board
of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991); Sillman v.
Sillman, 168 Conn. 144, 149, 358 A.2d 150 (1975).
Imposing an initial presumption of equality on a statutory distribution
scheme has been rejected by some courts. The Indiana Supreme Court reversed its Court of
Appeals and declared that a distribution statute, silent in that regard, does not
"require as a matter of law that the trial judge work from the standpoint of a
rebuttable presumption of a 'fifty-fifty' split. . . ." Luedke v. Luedke, 487
N.E.2d 133, 134 (Ind. 1985). The Indiana Supreme Court explained its rationale that a
fifty-fifty presumptive split would "put an artificial structure on the fact-finding
process which may very well impinge the trial judge's ability to openly weigh all the
facts and circumstances, giving equal regard to all of them. . . . [A] complete and
thorough examination needs to be made of the quantity and quality of the contribution of
both the wage earner and homemaker in order to come to a final determination. The actions
of people in the course of daily life are not easily susceptible to mathematical
calculation." Luedke v. Luedke, supra, 134.
A number of decisions have refused to invoke a fifty-fifty division
of property in family cases by judicial decree mindful that it is a decision best left to
the legislature. Jennings v. Conn, 194 Ore. 686, 690, 243 P.2d 1080, 1082 (1952)
("would, in effect, be writing a community property law by judicial fiat"); Fischer
v. Wirth, 38 A.D.2d 611, 326 N.Y.S.2d 308, 310 (App. Div. 1971) ("What appellant
really seeks is a community property division under the guise of equitable relief.").
Two statutes, one from California and one from Wisconsin, containing
some semblance of a fifty-fifty presumption will now be discussed. California contains
such a provision in its statute dividing community property. "The court shall . . .
divide the community estate of the parties equally." California Family Code, § 2550.
There are two circumstances that can affect this fifty-fifty division: (1) "unless
the court finds upon good cause shown that the interests of justice require an unequal
division of the asset or liability." California Family Code, § 2556; and (2)
"the court for good cause shown may value all or any portion of the assets and
liabilities at a date after separation and before trial to accomplish an equal division of
the community estate of the parties in an equitable manner." California Family Code,
These statutes are of no significance in Connecticut for four reasons:
(1) there is no such statute or case law presumption in Connecticut, (2) Connecticut,
unlike California, is not a community property state, (3) Connecticut is an all property
state and has no definition of marital property or separate property, and (4) the
California statutes set forth no criteria upon which the court can exercise its discretion
to find "good cause" to vary the fifty-fifty division whereas Connecticut's
property division statute contains 18 criteria.
Wisconsin has a fifty-fifty property division presumption by statute.
"The court shall presume that all property not described in sub (2)(a) is to be
divided equally between the parties but may alter this distribution without regard to
marital misconduct after considering all of the following:" Wis. Stat. Ann. §
767.255(3). The statute then lists 13 criteria that can be used by the trial court to
exercise its discretion. Subdivision (2)(a) of the Wisconsin statute, referred to above,
established a definition of separate property which would not be subject to the court's
power of division and distribution.
This Wisconsin statute is of no significance to Connecticut for three
reasons: (1) there is no such statute or case law presumption in Connecticut, (2)
Wisconsin is a quasi-community property state, and (3) Connecticut is an all property
state and has no definition of marital property or separate property.
Wisconsin also has the only case that refers to a nonstatutory
fifty-fifty presumption. Alimony (called maintenance payments in Wisconsin) is permitted
by statute. This statute contains no fifty-fifty presumption. Wis. Stat. Ann. § 767.26.
This statute does list ten factors the court may take into account in exercising its
discretion in making the periodic award. None of the factors can be read to include a
fifty-fifty presumption. In 1982, case law changed that. A trial court may begin
maintenance evaluation with the presumption that the dependent partner may be entitled to
50% of total earnings of both parties. Bahr v. Bahr, 107 Wis. 2d 72, 318 N.W.2d 391
(1982); In re Marriage of LaRocque, 139 Wis. 2d 23, 32-33, 406 N.W.2d 736, 740
(1987). This theory has been refined in a recent case in which the $73,000 income of
the husband and the $19,000 income of the wife was combined and divided between them
$49,000/$43,000. The court held that the 49/43 split complied with the fifty-fifty
presumption of LaRocque. Wikel v. Wikel, 168 Wis. 2d 278, 483 N.W.2d 292, 293 (Ct. App.
This line of cases is of no significance in Connecticut for these
reasons: (1) there is no such statute or case law in Connecticut, (2) Wisconsin is a
quasi-community property state, and (3) the fifty-fifty division of maintenance engrafted
the statutory presumption of fifty-fifty in property division, yet in its latest pretrial
application the division of $49,000/$43,000 resulted in a 53%/47% split. The 1992
exception swallowed the 1982 rule that itself was an exception to a statute that contained
no such presumption. Olson v. Olson, 186 Wis. 2d 287, 520 N.W.2d 284 (Ct. App. 1994).
"There is no provision in the governing statutes requiring that awards of alimony be
distributed equally between the parties." Carter v. Carter, 8 Conn. App. 356, 359,
512 A.2d 979 (1986); Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982).
There are a number of states that have a variety of presumptions in
their marital distribution statutes:
1. Oregon Revised Statutes § 107.105(1)(f) (1995):
"There is a rebuttable presumption that both spouses have
contributed equally to the acquisition of property during the marriage, whether the
property is jointly or separately held."
The division is not presumed to be equal and is subject to equity,
"as may be just and proper in all the circumstances."
2. West Virginia Code § 48-2-32(c) (1996):
"In the absence of a valid agreement, the court shall presume that
all marital property is to be divided equally between the parties, but may alter this
distribution, without regard to any attribution of fault. . . ."
Any alteration is to be based on consideration of certain statutorily
enumerated factors. It should be noted that the
West Virginia Code contains a statutory definition of marital property.
3. Arkansas Code Annotated § 9-12-315(a)(A)(1)(1993):
A fifty-fifty presumption exists subject to trial court discretionary
variation upon the application of certain factors. It should be noted that the Arkansas
Code contains a statutory definition of marital property.
4. North Carolina General Statutes § 50-20(c)(1995):
Marital property as defined by statute is presumed to be divided
5. Nevada Revised Statutes Annotated § 125.150 (1989):
In this community property state, there is a presumption of fifty-fifty
division of that which is determined to be community property.
6. Indiana Code § 31-1-11.5-11(c) (1988):
"The court shall presume that an equal division of the marital
property between the parties is just and reasonable. However, this presumption may be
rebutted by a party who presents relevant evidence including evidence concerning the
following factors. . . ."
The court must begin with the premise that the distribution should be
equal, unless there is a justification for an unequal distribution based on all relevant
factors. Ten factors are listed in the statute.
7. Minnesota Statutes Annotated § 518.58 Subdivision 1 (West
"Upon a dissolution of a marriage . . . the court shall make a
just and equitable division of the marital property. . . . It shall be conclusively
presumed that each spouse made a substantial contribution to the acquisition of income and
property while they were living together as husband and wife."
8. Ohio Revised Code Annotated § 3105.171(C)(1) (Anderson 1992):
"The division of marital property shall be equal. If an equal
division of marital property would be inequitable, the court shall not divide the marital
property equally but instead shall divide it between the spouses in the manner the court
determines equitable. In making a division of marital property, the court shall consider
all relevant factors, including those set forth in Division (F) of the section."
Based on the above: (1) the Oregon statute contains no presumption of
division, just ownership; (2) the Minnesota statute contains no presumption of division,
just marital efforts; (3) Indiana is an "all-property" state and yet inserts
into the statute a concept of "marital property," thus differentiating it from
Connecticut which is a pure "all-property" state; (4) the other presumptions
appear to be based on a statutory scheme that contains a definition of marital property,
more restrictive than Connecticut's "all property scheme"; or (5) in the case of
Nevada, it is based on community property standards. None of the above statutes are
Two cases, one from Pennsylvania and one from Florida, do not support
the plaintiff's position. DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975)
has been cited in the ERA footnote 2 of O'Neill v. O'Neill. DiFlorido is an unusual case.
It is a replevin action. The parties had been divorced. Under 68 P.S. § 501 there is a
presumption of fifty-fifty ownership of joint property unless the decree states otherwise.
This conflicted with Pennsylvania common law that presumed ownership of personal property
in the husband as trustee of the wife's half share. The common law was set aside by
DiFlorido. No equal protection or ERA claim was made. This case on its face does not stand
for the proposition of a presumption of equal division in a marriage. Butler v. Butler,
464 Pa. 522, 347 A.2d 477 (1977) did raise the 1971 Pennsylvania ERA to successfully
claim that there can be no rebuttable presumption of a constructive trust for the wife's
property by the husband. The common law conflicts with the current statute passed in 1949
and the common law constructive trust theory was held violative of the Pennsylvania ERA.
"The concept of 'equitable distribution' does not require an equal
division of the assets acquired during the marriage between the parties although that is a
good starting point in most cases." Mahaffey v. Mahaffey, 401 So. 2d 1372, 1374
(Fla. Dist. Ct. App. 1981). Mahaffey was followed by Ente v. Ente, 442 So. 2d 232
(Fla. Dist. Ct. App. 1983) and Bobb v. Bobb, 552 So. 2d 334 (Fla. Dist. Ct. App.
1989). In Mahaffey, although equal division was a good starting point, an award to a
wife with two minor children of a $200,000 lump sum by a husband with $1,441,782 worth of
assets subject to capital gains tax was upheld with the remand to determine how and when
the $200,000 would be paid. It is also noted that Mahaffey predated the creation by
Florida in 1989 of a revised equitable distribution scheme, one that did not establish a
fifty-fifty presumption. Fla. Stat. § 61.075 (1989). Mahaffey shows that the Florida
statutory presumption is not applied consistently.
Applying all these principles of statutory construction does not obtain
the presumption the plaintiff desires. It is noted the plaintiff did not fully brief this
aspect of statutory interpretation rules. The court does not have to consider these
arguments. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 249-50 n. 3,
524 A.2d 610 (1987).
The bottom line in Connecticut is that in the absence of specific
statutory language, there is no presumption of an equal division in a marital dispute. A
constitutional amendment cannot provide such a statutory enactment. Kelley Property
Development, Inc. v. Lebanon, 226 Conn. 314, 319, 627 A.2d 909 (1993). That
determination is for the legislature to make, not the courts. Gay & Lesbian Law
Students Assn. v. Board of Trustees, 236 Conn. 453, 514, 673 A.2d 484 (1996).
"This court is precluded from substituting its own ideas of what might be a wise
provision in place of a clear expression of legislative will." Gonsalves v. West
Haven, 232 Conn. 17, 26, 653 A.2d 156 (1995). "Where statutory language is
clearly expressed, as here, courts must apply the legislative enactment according to the
plain terms and 'cannot read into the terms of a statute something which manifestly is not
there in order to reach what the court thinks would be a just result.'" Johnson v.
Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985). "It is not the province of a
court to supply what the legislature chose to omit. The legislature is supreme in the area
of legislation, and courts must apply statutory enactments according to their plain
terms." Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988).
"A cause of action that is solely statutory in its derivation cannot be judicially
expanded to encompass grievances for which the legislature has not seen fit to provide a
remedy." Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 251-52, 506 A.2d 1035
(1986). In this country, the task of regulating divorce was taken over not by the
courts, but the legislatures. The regulation of marriage and divorce has been fully
recognized as a matter within the exclusive province of the legislatures of the states. Taylor
v. Taylor, 436 N.E.2d 56 (Ind. 1982); 34 A.L.R. 4th 54, 57 (1984). Other states
have included, in effect, such a presumption but not Connecticut. California, Louisiana,
New Mexico, Wisconsin, Nevada, North Carolina and Arkansas have such a presumption.
"Expressio unius est exclusio alterius . . .'the expression of one thing is the
exclusion of another.'" Gay & Lesbian Students Assn. v. Board of Trustees,
The application of this suggested presumption by court decree would
deprive the trial court of a substantial portion of its power of discretion.
"Discretion . . . imparts something more than leeway in decision-making. It denotes
the absence of a hard and fast rule or a mandatory procedure regardless of varying
circumstances." State v. Corchado, 200 Conn. 453, 464, 512 A.2d 183 (1986).
"Use of an arbitrary rule under circumstances that require the exercise of the
court's discretion is an abuse of discretion." Askinazi v. Askinazi, 34 Conn. App.
328, 340, 641 A.2d 413 (1994).
The word, "equitable," and the word, "equal," are
not the same. Many lay people believe that because both words start with the same prefix,
"equ," that equitable means equal. This is not the case. There is an ancient
maxim "aequalis est aequitas equality is equity." The maxim does not state the
reverse: equity means equal. "An equal division of property is presumptively
valid." Brooks v. Brooks, 733 P.2d 1044, 1058 (Alaska Ct. App. 1987). "In
extant Oklahoma jurisprudence, the words 'just' and 'reasonable' in 12 O.S. Supp. 1985
§ 1278 . . . are equivalent to 'equitable' though not synonymous with 'equal.' . . . Our
case law holds that equitable division does not necessarily mean equal division."
(Citations omitted.) Teel v. Teel, 766 P.2d 994, 997 n. 6 (Okla. 1988).
"Equitable distribution jurisdictions generally provide that
property must be divided in a manner that is 'just,' 'right' or 'equitable,' not
necessarily 'equal.'" A. Rutkin, Family Law and Practice § 37.01(1) p. 37-12. Not
all "equ" prefix words are the same.Otherwise, equine creatures would all be
equal, from an Icelandic trekking pony to a sleek Triple Crown winner.
THE 1974 EQUAL RIGHTS AMENDMENT TO THE CONNECTICUT CONSTITUTION HAS NOT
CHANGED THE EQUITABLE DIVISION STANDARDS TO REQUIRE A FIFTY-FIFTY DIVISION
The plaintiff argues that the Connecticut ERA has changed the equitable
division standards to require a fifty-fifty division. Additionally, the plaintiff argues
that the plain reading of the statute and other tools of legislative interpretation also
require a fifty-fifty division. The equal rights provision found in article first, § 20,
of the Connecticut constitution amended by article V, states "No person shall be
denied the equal protection of the law nor be subjected to segregation or discrimination
in the exercise or enjoyment of his or her civil or political rights because of religion,
race, color, ancestry, national origin or sex." This provision is commonly known as
the Equal Rights Amendment or ERA. This amendment adding the word "sex" was
adopted on November 27, 1974. In addition, the equal protection provision found in article
first, § 1 of the Connecticut constitution's Declaration of Rights states "All men
when they form a social compact, are equal in rights; and no man or set of men are
entitled to exclusive public emoluments or privileges from the community." Both of
these sections of the Connecticut constitution require "the uniform treatment of
persons standing in the same relation to the governmental action questioned or
challenged." Broadley v. Board of Education, 229 Conn. 1, 8, 639 A.2d 502 (1994).
Furthermore, the legislature has broad discretion in the exercise of its power to
legislate and "in areas of social and economic policy, a statutory classification
that neither proceeds along suspect lines nor infringes fundamental constitutional rights
must be upheld against an equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification." Broadley v. Board of Education, supra, 229 Conn. at 8-9; State
v. Reed, 192 Conn. 520, 531, 473 A.2d 775 (1984).
There is no equal rights amendment to the United States Constitution.
That equal rights amendment was approved on March 22, 1972 by the United States Senate by
a vote of 84 to 8 and the House of Representatives by a vote of 354 to 23 and signed by
President Richard M. Nixon. It took years of lobbying to pass the federal ERA. Thirty five
states ratified the federal ERA with Connecticut ratifying on March 15, 1973. The
ratification period expired on July 1, 1982 with ratification by three-fourths of the
states failing by three states. The only reference to sex in the United States
Constitution is in the 19th Amendment. "The right of citizens of the United States to
vote shall not be denied or abridged by the United States or by any state on account of
sex." U.S. Const. Amend. XIX, § 1.
Connecticut has approved the pending equal rights amendment to the
United States constitution, House J.R. No. 1, Jan. Sess., pt. 1, vol. 1, 1973 Public Acts,
p. LXXIV and its own Connecticut equal rights amendment, in addition to the CFEP
legislation in the present case. The history of this mass of legislation evidences a firm
commitment not only to end discrimination against women but also to do away with sex
Evening Sentinel v. National Organization for Women, 168 Conn. 26,
34, 357 A.2d 498 (1975).
No case in the state of Connecticut, either in the appellate court
or trial court,has contained an argument that either the Equal Rights Amendment or the
Equal Protection Clause of the state constitution compels a trial court under General
Statutes § 46b-81 to render a presumption of equal division of property prior to the
application of the statutory criteria. The only published case which referred to the ERA
as applied to the division of property and alimony is O'Neill v. O'Neill. "On
appeal, the plaintiff did not raise any claim or make any argument that the Connecticut
equal rights amendment; Conn. Const. art. I, § 20; compels the courts to consider the
homemaker's contribution to the acquisition of marital assets as equal to that of the wage
earning spouse." O'Neill v. O'Neill, supra, 13 Conn. App. at 310 n. 2.
The plaintiff finds support in this argument in various law review
articles including that contained in a 1983 University of Bridgeport Law Review article.
The author states that "it can be argued that the state Equal Rights Amendment
provides a constitutional basis for treating the homemaker spouse and the wage-earner
spouse as beginning on an equal footing with regard to division of marital property."
J. Avner, "Using the Connecticut Equal Rights Amendment at Divorce to Protect
Homemakers' Contributions to the Acquisition of Marital Property," 4 U. Bridgeport L.
Rev. 265, 280 (1983). This concept has not found its way into any published court decision
In 1983, Judith I. Avner was a staff attorney of NOW Legal Defense and
Education Fund and co-director of the ERA Impact Project. The 1983 article was written a
year after the federal ERA failed to be ratified by three-fourths of the states. The
Connecticut ERA had been in effect for nine years. "This article is designed to
assist the practitioner in framing an argument that the Connecticut equal rights amendment
mandates consideration of a homemaker's contribution to the acquisition of marital assets
as equal to that of the wage earner for purposes of dividing marital assets under the
equitable distribution statute. Thus, the starting point for distribution of marital
property at the time of divorce is that each spouse is entitled to an equal share of the
property." J. Avner, supra, 4 U. of Bridgeport L. Rev. 265. The article
concludes, "A state equal rights amendment is a potent tool available to a married,
economically dependent woman facing disruption of her life and family by divorce, because
it gives constitutional dimension to her position as an equal partner in her marriage, and
recognition of the significant contribution she has made to her family. The state ERA can
be used to support this status by arguing that it mandates equality as a starting point in
dividing the property acquired through mutual efforts." Id., 281.
This argument contained in this law review article is not persuasive
for a number of reasons: (1) no Connecticut trial or appellate court has adopted this
reasoning in the 14 years since its Connecticut publication and distribution, (2) no
Connecticut case has been brought to the attention of this court in which this argument
was raised, (3) when the Appellate Court first decided, five years later in 1988, that
nonmonetary contribution of spouses is a criterion in Connecticut's equitable distribution
scheme, it cited this very law review article in a footnote, and no court thereafter has
dealt with the subject of the ERA. O'Neill v. O'Neill, supra, 13 Conn. App. at 10 n. 2.
Two Connecticut appellate cases attempted to raise this issue in the
context of the ERA. The Supreme Court held, on technical grounds, that this issue was not
properly before the court. Cersosimo v. Cersosimo, 188 Conn. 385, 449 A.2d 1026 (1982).
"We cannot even reach what seems to be a gender-based claim of discrimination because
the record before us provides an inadequate basis for considering it. There is simply no
evidence that either the court at the time of the divorce in 1966 or the court involved in
any of the 'subsequent modifications' did or did not consider the 'unpaid service of the
wife as homemaker.'"; Id., 398.
In a per curiam decision the Appellate Court refused to consider gender
bias since the claims "were not distinctly raised in the trial court." Brown
v. Brown, 36 Conn. App. 597, 599, 652 A.2d 527 (1995). Eight appellate claims were
raised by the plaintiff wife in a 17 year, 3 child marriage regarding post judgment
visitation issues, all of which claimed gender bias by the trial judge. Typical of these
claims was "the trial court's decisions were materially affected by gender bias in
the court and influenced by gender stereotype statements proffered by the defendant and
which decisions were based in part on gender stereotypes and not on the facts, all to the
detriment of the custodial mother,and such gender bias is error and abuse of discretion by
the trial court." Id., 599-600 n. 1. The Appellate Court's decision stated,
"Examination of the record, the appellate briefs and consideration of the parties'
oral arguments does not persuade us that the trial court abused its discretion." Id.,
Other Appellate Courts have dealt with claims of gender bias in
nonfamily cases: State v. Morales, 45 Conn. App. 116, 128, 694 A.2d 1356 (1997)
(doctrine of constancy of accusation in a sexual assault prosecution is not gender
biased.); State v. Robinson, 237 Conn. 238, 244, 676 A.2d 384 (1996) (jury
selection must be free from gender bias, citing J.E.B. v. Alabama, 511 U.S. 127, 114 S.
Ct. 1419, 1421, 128 L. Ed. 2d 89 (1994); Levy v. Commission on Human Rights &
Opportunities, 236 Conn. 96, 102-03, 671 A.2d 349 (1996) (gender bias in employment
not permitted unless gender is a bona fide occupational qualification.); State v.
Figueroa, 235 Conn. 145, 185, 665 A.2d 63 (1995) (gender biased language not permitted
in jury instructions); State v. Williams, 231 Conn. 235, 247, 645 A.2d 999 (1994)
(use of gender stereotypes not permitted in argument to jury).
The only reported case citing the ERA in regard to spousal financial
responsibility is a recent trial court decision. Yale University School of Medicine v.
Scianna, 45 Conn. Supp. 84, 701 A.2d 65 (1997) (Blue, J.) (1997 Ct. Sup. 2303) (19
Conn. L. Rptr. 77). The lawsuit sought contribution from a wife under General Statutes §
46b-37. A Motion for Summary Judgment filed by the separated wife gave the court the
opportunity to discuss the ERA. The decision properly noted that those marital financial
statutes and their history "is inextricably linked with the fundamental changes in
society and the status of women that have occurred in the course of our nation's
growth." Yale University School of Medicine v. Scianna, supra, 45 Conn. Supp. 89;
Yale University School of Medicine v. Collier, 206 Conn. 31, 35, 536 A.2d 588 (1988).
Judge Blue notes the change in women's rights. "To state a complex matter briefly, at
common law married women had no property and therefore, could make no contracts. As
Blackstone put it, 'the very being or legal existence of the woman is suspended during the
marriage.' 1 W. Blackstone, Commentaries on the Laws of England, (1807) p. 442." Yale
University School of Medicine v. Scianna, supra, 89. The effect of the Married
Women's Act of 1877, Public Acts 1877 c. 114, was to permit married women for the first
time to own property and to make contracts with third persons. In 1935 the Married Women's
Act was amended giving separated husbands a defense from third parties' suits provided he
was paying reasonable support to his wife. Wives had no such defense since it was presumed
they would not be sued in the first place.
Commenting on the 1974 ERA to the Connecticut constitution, the Scianna
court held "Connecticut amended its constitution to include an equal rights
amendment, prohibiting discrimination because of sex. Conn. Const., amend. V. These
developments plainly rendered the language of the 1935 amendment to the Married Women's
Act socially obsolete and constitutionally vulnerable." Id., 91-92. Shortly
after that equal rights amendment, the legislature responded and in 1977 expanded the
language of General Statutes § 46b-87, making the statutory language gender neutral. P.A.
77-288. The pre-1974 statute read, "No action shall be maintained against a husband
under the provisions of this section, either during or subsequent to any period of
separation from his wife, for any liability incurred by her during such period of
separation, if during such period, he shall have provided her with reasonable
support." General Statutes § 1596c (1935 Sup.). In 1977, an amendment changed that
statute to read, "No action may be maintained against either spouse under the
provisions of this section, either during or after any period of separation from the other
spouse, for any liability incurred by the other spouse during the separation, if, during
the separation the spouse who is liable for support of the other spouse has provided the
other spouse with reasonable support." P.A. 77-288, § 1; now General Statutes §
The 1977 act, in response to the 1974 ERA made two significant changes:
The first change is that the separation defense is now available to husbands and wives
alike; and the second change is the liberal use of the phrases, "either spouse"
or "the other spouse," making the defenses available to the provider spouses and
the recipient spouses alike, at least as long as reasonable support is paid. Scianna found
that the pre-1974 statute was subject to attack under the ERA but the 1977 amendment
solved the constitutional problem. Judge Blue granted the defendant wife's motion for
summary judgment based upon the fact that the wife was supported during the separation,
and turned aside the constitutional attack on the spousal contribution statute, General
Statutes § 46b-37.
The Supreme Court has also held that the spouse neutral statute
authorizing attorney fees in dissolution actions, General Statutes § 46b-62, "has
dispelled the gender-oriented assumptions of the common-law rule." Arrigoni v.
Arrigoni, 184 Conn. 513, 518, 440 A.2d 206 (1981). No other trial court decision has
discussed the ERA and its effect on voiding a marital or family statute.
The language of General Statutes §§ 46b-81 and 46b-82 is spouse
neutral and has been so for years. For hundreds of years the language was not spouse
neutral, and thus, these provisions were subject to post 1974 attack under the ERA. Post
1974 amendments to these two statutes were also spouse neutral. For example, the courts
now have authority to pass title to real property to either party or to a third party.
P.A. 75-331. The court may order either party to contract with a third party for periodic
payments. P.A. 83-527. Both statutes have remained spouse neutral since 1974.
Only two appellate cases have discussed the ERA in a marital setting,
Cersosimo v. Cersosimo in 1982 and Brown v. Brown in 1995. Two cases have discussed the
issue on equal protection grounds. The first was Stern v. Stern, 165 Conn. 190, 332
A.2d 78 (1973). Stern challenged the enforcement of the pre-1973 alimony pendente lite
statute, then General Statutes § 46-21, from an order granting the plaintiff wife alimony
pendente lite. The husband claimed since by statute only men are compelled to pay alimony,
the statute discriminates against men solely on the basis of sex in violation of the equal
protection clause of the fourteenth amendment to the federal constitution. The Supreme
Court in Stern held that the classification in General Statutes § 46-21 was not based
exclusively on sex but on the legislature's then conception of family relationships. That
legislative policy stated that a husband should be primarily responsible for the support
of the wife and family. This decision was based on common law enacted into statutory form.
Additionally, the court held that the defendant failed to demonstrate that General
Statutes § 46-21's imposition of alimony only on a husband was unreasonable or arbitrary
and, thus, unconstitutional. Stern v. Stern, supra, 199.
The Stern case was based upon the claim that the statute discriminated
against the husband on the basis of sex and that such a discrimination violated the equal
protection clause of the fourteenth amendment of the federal constitution. Stern was
decided on June 29, 1973, prior to the effective date of P.A. 73-373, our spouse neutral
equitable distribution scheme. The Supreme Court was aware of that statutory change. Stern
v. Stern, supra, 165 Conn. 199 n. 4. It can be presumed that the trial court was not
aware of P.A. 73-373, the order having been entered prior to the 1973 legislative session.
Neither the trial court nor the Supreme Court made reference to Connecticut's movement to
approve a state ERA on the basis of sex. That ERA concept though was not foreign to the
Supreme Court since a reference to the Connecticut legislature's approval of the ERA to
the federal constitution is contained in the opinion. Stern v. Stern, supra, 195 n. 2.
So too, the ERA argument advanced by the plaintiff was touched on in the court's
recitation of the defendant's claim that "the statute therefore discriminates against
men solely on the basis of sex." Id., 192.
The second case to discuss the issue on equal protection grounds was Lane
v. Lane, 187 Conn. 144, 146, 444 A.2d 1377 (1982). There, the mention of a wife's past
family support and not of a husband's contribution was not gender-based discrimination
when the wife was awarded a claimed disproportionate share of the assets. "As to the
defendant's equal protection claim, the record shows that the trial court considered all
relevant factors. The court was not required to recite all of them . . . or make specific
findings concerning each. . . ." (Citations omitted.) Id.
The Supreme Court did annotate this argument with a supporting case.
"The Supreme Court of Florida in Pacheco v. Pacheco, 246 So. 2d 778, 779
described such a claim as 'a problem which . . . may become a challenge to advocates of
total equality between women and men.'" Stern v. Stern, supra, 165 Conn. 192 n. 1.
"Prior to the amendment of article first, § 20, of the constitution of Connecticut,
our decisions often noted that the equal protection clauses of the state and federal
constitutions mean substantially the same thing and may be considered together." Page
v. Welfare Commissioner, 170 Conn. 258, 264, 365 A.2d 1118 (1976); Tough v. Ives,
162 Conn. 274, 292, 294 A.2d 67 (1972).
The legislature responded to the 1974 ERA and amended the spousal
financial statute in 1977. General Statutes § 46b-37 (P.A. 77-288). Yale University
School of Medicine v. Scianna, supra, 45 Conn. Supp. 92. This statutory enactment
added spouse neutral language correcting its ERA violation. The two statutes in question,
General Statutes §§ 46b-81 and 46b-82, have already been couched in spouse neutral terms
prior to the passage of the ERA. The legislature has also reacted to the ERA and since
1974 has rewritten other statutes in gender neutral terms. General Statutes §§ 4a-60a,
31-19, 31-20, 51-218, 51-219 and 53a-65. The legislature knew how to draft statutes to
conform to the ERA. Legislative inaction or silence can be a guide to legislative intent. Martin
v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997).
The following citation in Collier referring to the ERA in its footnote
3 must be read in conjunction with Scianna:
The evolutionary changes in married women's rights that enabled them to
acquire and dispose of property also generated changes in the obligations of each spouse
to the marriage. In the evolutionary process the primary obligation of the husband to
provide support for his wife and children under the common law evolved into a joint duty
of each spouse to support the family. Section 46b-37(b) provides the basic statutory
predicate for this change. Article fifth of the Connecticut constitution, amending § 20
of article first of the Connecticut constitution, fn. 3, however, provides the
constitutional underpinnings for contemporary departure from the primary duty of one
spouse to the joint duty of each spouse to support his or her family.
Yale University School of Medicine v. Collier, supra, 206 Conn. 35.
This citation supports the plaintiff's position, but the weakness
of that position is shown by applying rules of legislative construction.
Connecticut common law contained no fifty-fifty presumption of marital
property division upon divorce. The plaintiff's ERA interpretation would change common
law. The quotation in the above paragraph is in relation to the spousal support statute,
General Statutes § 46b-37(b), which also changed common law. Such a common law change
must be strictly construed.
In seeking to hold the named defendant liable under 46b-37(b)(2) where
at common law no liability existed, 'the plaintiff ignores the basic principle that when a
statute is in derogation of common law or creates a liability where formerly none existed,
it should receive a strict construction and is not to be extended, modified, repealed or
enlarged in its scope by the mechanics of construction. Stoll v. Judd Co., 106 Conn.
551, 556, 138 A. 479 . In determining whether or not a statute abrogates or
modifies a common law rule the construction must be strict, and the operation of a statute
in derogation of the common law is to be limited to matters clearly brought within its
scope. The court is to go no faster and no further than the legislature has gone. . . . A
legislative intention not expressed in some appropriate manner has no legal existence. Willoughby
v. New Haven, 123 Conn. 446, 454-55, 197 A. 85 . Edmundson v. Rivera, 169
Conn. 630, 633, 363 A.2d 1031 (1975). We have stated further that no statute is to be
construed as altering the common law, farther than its words import. It is not to be
construed as making any innovation upon the common law which it does not fairly express. Dennis
v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951), quoting Shaw v. Railroad Co., 101
U.S. 557, 565, 25 L. Ed. 892 (1879).
(Internal quotation marks omitted.) Yale University School of
Medicine v. Collier, supra, 206 Conn. 36-37.
Judicial restraint and strict construction rules do not permit this
court to engraft a fifty-fifty presumption on the equitable distribution scheme via the
The plaintiff appears to argue, that despite the plain language of the
two statutes that do not, on their face, provide for a fifty-fifty presumption, the 1974
ERA has automatically amended the statutes to contain such a presumption. This
"self-executing" statutory amendment authority finds no support in Connecticut. Anselmo
v. Cox, 135 Conn. 78, 81, 60 A.2d 767 (1948). In Anselmo, although there was no
statute permitting the plaintiff to commence suit against the state for a temporary
shutting off of all access to his gasoline station, he claimed he had such a right
pursuant to the taking provision of the constitution of Connecticut. "He rests his
argument upon the proposition that the provision of § 11 of article first of the
constitution of Connecticut that 'the property of no person shall be taken for public use,
without just compensation therefor,' is self-executing and that no further specific
permission to sue the state is necessary." Anselmo v. Cox, supra, 81. The
granting of the demurrer was upheld by the Supreme Court of Errors on the basis that the
constitutional provision was not self-executing and the plaintiff could not point to any
statutory authority to maintain his position.
This rule that the constitution does not create a right, absent a
specific statutory or common law authority, is the current law of Connecticut. "We
should not construe our state constitution to provide a basis for the recognition of a
private damages action for injuries for which the legislature has provided a reasonably
adequate statutory remedy. This conclusion accords with the constitutional principle of
separation of powers and its requirement for judicial deference to legislative resolution
of conflicting considerations of public policy." Kelley Property Development, Inc.
v. Lebanon, 226 Conn. 314, 339, 627 A.2d 909 (1993). The legislature has established a
statutory remedy for dividing income and property in marital disputes. It is up to the
legislature to create a fifty-fifty presumption. Neither the constitution, the ERA, case
law, nor the current statutes do so.
The law in Connecticut concerning the division of property and income
in a dissolution proceeding is and has remained the same for many years. "The court
must consider all of the statutory criteria in determining how to divide the parties'
property in a dissolution action. . . . A trial court, however, need not give each factor
equal weight . . . or recite the statutory criteria that it considered in making its
decision or make express findings as to each statutory factor. . . ." (Citations
omitted; internal quotation marks omitted.) Burns v. Burns, 41 Conn. App. 716, 720-21,
677 A.2d 971 (1996). Although the statutes recite criteria, they establish no
guidelines on how to apply these criteria. Such a lack of guidelines or presumptions has
been upheld as meeting constitutional standards. Joy v. Joy, 178 Conn. 254, 255, 423
A.2d 895 (1979). In Joy, Connecticut's no fault divorce statute was held to be
constitutional even though the statute contains no objective guidelines. "We decline,
as have other courts that have considered the issue . . . to circumscribe this delicate
process of fact-finding by imposing the constraint of guidelines on an inquiry that is
necessarily individualized and particularized." (Citations omitted.) Id., 255.
"The absence of objective guidelines does not mean abdication of judicial function .
. . ." Id.
The plaintiff's argument can be summed up as follows: the statute does
not contain any guidelines on how to apply its criteria. The application is left up to
judicial discretion. Consequently, the results have been unfair to the economically
deprived spouse, and thus, a set rule must be created to right this wrong.
The plaintiff would have the decision in this case take its place along
with the great events making changes in women's rights: the 1848 Seneca Falls Convention;
the Married Women's Act of 1877 in Connecticut; the 19th Amendment to the United States
Constitution ratified in Connecticut on September 14 and 20, 1920; and the ERA to the
Connecticut constitution adopted November 27, 1974. This historical progression, while
compelling, does not warrant the results the plaintiff seeks. The plaintiff seeks, by
judicial fiat, to declare unconstitutional, statutes in order to correct an economic
To do this would be judicial overreaching, "Lochnerizing" a
provision of our constitution. Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L.
Ed. 937 (1905). In a famous dissent in Lochner, Justice Oliver Wendell Holmes stated
that "a constitution is not intended to embody a particular economic theory, whether
of paternalism and the organic relation of the citizen to the State or of laissez faire.
It is made for people of fundamentally differing views, and the accident of our finding
certain opinions natural and familiar or novel and even shocking ought not to conclude our
judgment upon the question whether statutes embodying them conflict with the Constitution
of the United States." Lochner v. New York, supra, 198 U.S. 75-76. The
judicial overreaching of Lochner has been universally discredited, and Justice Holmes'
dissenting position is the law of the land. American Dredging Co. v. Miller, 510 U.S.
443, 447 n. 1, 127 L. Ed. 2d 285, 114 S. Ct. 981 (1994); Moore v. East Cleveland,
431 U.S. 494, 502, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977); West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 (1937).
Even if this court believes that a fifty-fifty presumption may be a
good idea (this decision not requiring such a judicial expression), "that
determination is for the legislature, not for us, to make. Because this court is precluded
from substituting its own ideas of what would be a wise provision in place of a clear
expression of legislative will." (Internal quotation marks omitted.) Gay &
Lesbian Law Students Assn. v. Board of Trustees, supra, 236 Conn. at 514 (Palmer, J.,
dissenting); See also Gonsalves v. West Haven, 232 Conn. 17, 26, 653 A.2d 156 (1995).
To interpret the statutory equitable distribution scheme in this fashion would legislate
by judicial fiat and in the opinion of this court would distort the plain and unambiguous
language of the statutes. "This distortion of plain language would confound
philologists, should disturb the trial bench, and makes light of the authority of the
General Assembly." Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749,
767, 699 A.2d 81 (1997) (McDonald, J., dissenting).
No rule can be established in family cases to fit every scenario
whether community property, statutory presumption of fifty-fifty or equitable
distribution. "It is nonetheless impossible to draft reasonable rules that
unambiguously resolve every factual variation. Hence, no formulation can eliminate all
need for judicial discretion." American Law Institute, Principles of the Law of
Family Dissolution: Analysis and Recommendations, p.275 (Tentative Draft No. 2, 1996); Olmstead
v. Olmstead, supra, 85 Conn. 478.
IN SEX DISCRIMINATION CLAIMS UNDER THE STATE ERA, STRICT SCRUTINY IS
The plaintiff claims that the equitable distribution scheme violates
the ERA when it does not provide for a presumption of a fifty-fifty division. What is the
test to be applied to the constitutional analysis of these statutes? Although not fully
briefed by either party, it appears three tests could be applied: rational basis, strict
scrutiny and an intermediate standard. The rational basis argument is as follows:
The equal protection provisions of our state constitution require 'the
uniform treatment of persons standing in the same relation to the governmental action
questioned or challenged.' Reynolds v. Sims, 377 U.S. 533, 565, 84 S. Ct. 1362, 12 L.
Ed. 2d 506 (1964); Franklin v. Berger, 211 Conn. 591, 594, 560 A.2d 444 (1989).
We recognize, however, that the legislature has broad discretion in the exercise of its
power to legislate, and that 'in areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification.' Federal Communications Commission v. Beach Communications, Inc., 508
U.S. 307, 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211 (1993); State v. Reed, 192 Conn.
520, 531, 473 A.2d 775 (1984).
Broadley v. Board of Education, supra, 229 Conn. at 8-9.
The strict scrutiny argument is as follows:
Statutes impinging upon fundamental rights or establishing suspect
classifications 'are subjected to strict scrutiny and will be sustained only if they are
suitably tailored to serve a compelling state interest.' Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985);Horton v.
Meskill, 172 Conn. 615, 640, 376 A.2d 359.
Broadley v. Board of Education, supra, 229 Conn. at 10.
Under the intermediate standard for gender-based classifications,
"a statute or regulation which treats males and females differently violates the
equal protection clause unless the classification is substantially related to the
achievement of an important government interest." Dydyn v. Department of Liquor
Control, 12 Conn. App. 455, 464, 531 A.2d 170 (1987). In Dydyn, restrictions on the
exposure of female breasts in an establishment selling licensed liquor was found to be
substantially related to an important governmental interest, i.e., reduction of public
disturbances in and around such establishments. An intermediate standard of review was
applied to reach this result.
The ERA is contained in article first of the Connecticut constitution
also known as "Declaration of Rights." Based on federal precedent and the lack
of a clear Connecticut mandate, a strong argument can be made that a violation of
Connecticut's Declaration of Rights must use the strict scrutiny test. Frontiero v.
Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973).
The federal constitutional standard in sex discrimination cases was
established in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976).
The intermediate standard was used, but the application of the standard appeared to have
used language similar to the rational basis standard. Craig v. Boren struck down as
unconstitutional, sex discrimination in an Oklahoma statute that allowed females to
purchase beer at a younger age than males. It is now clear that gender bias claims are
subject to the heightened scrutiny standard of the federal constitution. J.E.B. v.
Alabama Ex Rel. T.B., 511 U.S. 127, 135, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).
Referring to the federal standard of heightened scrutiny the Supreme Court said:
"This standard of review, which is less demanding than 'strict scrutiny' but more
demanding than the standard rational relation test, has generally been applied only in
cases that involved discriminatory classifications based on sex or illegitimacy." Kadrmas
v. Dickinson Public Schools, 487 U.S. 450, 459, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988).
The plaintiff has failed to argue which method is to be used to examine
the constitutionally of the statute,i.e., rational basis, strict scrutiny or intermediate
standard. An argument can be made that an analysis under all three of these standards
would not declare our equitable distribution scheme unconstitutional. Stern v. Stern,
165 Conn. 190, 194-95, 332 A.2d 78 (1973); Page v. Welfare Commissioner, supra, 170
Conn. 267-68; Stanton v. Stanton, 421 U.S. 7, 17, 95 S. Ct. 1373, 43 L. Ed. 2d 688
(1975) (under any test compelling state interest, rational basis, or something in
between, a statute in Utah requiring a parent to support a male child until twenty-one and
a female child until eighteen does not survive an equal protection attack).
Standards of review for an analysis under the state constitution's
Equal Rights Amendment were discussed in 1986 by Justice Berdon. "At the very least,
the standard for judicial review of sex classifications under our ERA is strict
scrutiny." Doe v. Maher, 40 Conn. Supp. 394, 448, 515 A.2d 134 (1986). Our
Supreme Court has not yet decided the standard for review for sex discrimination under
Connecticut's equal rights amendment. Prior to Doe v. Maher in 1986, the Supreme Court had
the opportunity to discuss a standard twice. In dicta the Supreme Court stated "that
the passage of the equal rights amendment mandates the use of a strict scrutiny
test." Page v. Welfare Commissioner, supra, 170 Conn. 267. "We need not
decide whether the strict scrutiny test mandated by the equal rights amendment is
applicable to the present case, for index 344.4, like the Utah statute ruled invalid in Stanton
v. Stanton, supra, 17, cannot survive an equal protection attack 'under any test -
compelling state interest, or rational basis, or something in between.'" Page v.
Welfare Commissioner, supra, 170 Conn. at 267-68.
In the second case, although not deciding the level of review under the
ERA, the Supreme Court noted that the level of review would be different than the
previously considered rational basis test. Stern v. Stern, 165 Conn. 190, 194, 332 A.2d
78 (1973). Finally it is noted that in State v. Geisler, 222 Conn. 672, 685, 610
A.2d 1225 (1992), the Supreme Court cited Doe v. Maher with approval. The court noted
in Geisler that in Doe, the trial court used strict scrutiny to analyze a sex
discrimination claim based on the equal protection clause of the state constitution,
relying, in part, on dicta from the Connecticut Supreme Court regarding what standard
would be used once Connecticut's equal rights amendment was adopted. By delineating
"sex" in the ERA, the Connecticut constitution has declared that sex
discrimination impinges upon a fundamental right. "If, in distinguishing between
classes, the statute either intrudes on the exercise of a fundamental right or burdens a
suspect class of persons, the court will apply a strict scrutiny standard wherein the
state must demonstrate that the challenged statute is necessary to the achievement of a
compelling state interest." Ryszkiewicz v. New Britain, 193 Conn. 589, 596, 479
A.2d 793 (1984). This court concludes that the strict scrutiny test is the proper test
to determine if a statute discriminates by reason of sex, and thus, violates Connecticut's
This conclusion is supported by a trend shown in the more recent
Supreme Court cases. Connecticut has long cited United States Supreme Court cases that
hold certain classifications are recognized as suspect. Leech v. Veterans' Bonus
Division Appeals Board, 179 Conn. 311, 314, 426 A.2d 289 (1979).
The United States Supreme Court has recognized as suspect,
classifications that are based on alienage, national origin, race, and, to a somewhat
lesser extent, gender. Personnel Administrator of Massachusetts v. Feeney, 442 U.S.
256, 272-73, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979).
Eielson v. Parker, 179 Conn. 552, 563, 427 A.2d 814 (1980).
In 1980 the Supreme Court cited Frontiero v. Richardson as follows:
'Classifications based on sex, like classifications based on race,
alienage, and national origin, are inherently suspect and must therefore be subjected to
close judicial scrutiny.' Frontiero v. Richardson, 411 U.S. 677, 682, 93 S. Ct. 1764,
36 L. Ed. 2d 583 (1973) (plurality opinion). While not subjected to the 'strict
scrutiny' analysis which occurs when a 'suspect class' is involved, nevertheless,
'classifications by gender must serve important governmental objectives and must be
substantially related to achievement of those objectives.' Craig v. Boren, 429 U.S.
190, 197, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976).
State v. Nims, 180 Conn. 589, 596, 430 A.2d 1306 (1980) (a jury
In equal rights challenges under the Connecticut constitution, the
Supreme Court has determined that if a right is determined to be fundamental, any
infringement of that right must be strictly scrutinized. "We must conclude that in
Connecticut the right to education is so basic and fundamental that any infringement of
that right must be strictly scrutinized." Horton v. Meskill, 172 Conn. 615, 646,
376 A.2d 359 (1977) (Horton I). This rule has been consistently discussed and applied
in later cases. In re Juvenile Appeal, (83-CD) 189 Conn. 276, 285, 455 A.2d 1313
(1983); Campbell v. Board of Education, 193 Conn. 93, 104, 475 A.2d 289 (1984);
Horton v. Meskill, 195 Conn. 24, 34-35, 486 A.2d 1099 (1985) (Horton II); Blakeslee
Arpaia Chapman, Inc. v. E I Constructors, Inc., 239 Conn. 708, 756, 687 A.2d 506 (1997).
In 1993 the Supreme Court stated, "Although this court has not
previously decided what level of judicial scrutiny is appropriate for a claimed violation
of amendment twenty-one. . . ." Daly v. DelPonte, 225 Conn. 499, 512, 624 A.2d 876
(1993). After review of case law under the federal constitution (the prior
interpretation of the equal protection provision of the state constitution being different
from that of the federal constitution), a 1990 law review article published by Justice
Berdon and the legislative history of the 1984 constitutional amendment under
consideration, the Supreme Court held: "We conclude, therefore, that amendment
twenty-one's protection for those possessing physical and mental disabilities identifies
the members of this class as a group especially subject to discrimination and requires the
application of the highest standard of review to vindicate their constitutional rights. As
the Appellate Court held, that standard requires strict scrutiny of the challenged
government action." Id., 515.
In 1995 the Supreme Court reviewed the test in the context of whether
the new seventeen year statute of limitations in civil cases seeking money damages for
sexual abuse, General Statutes § 52-577d, violates the equal protection clause of the
federal constitution. Giordano v. Giordano, 39 Conn. App. 183, 189, 664 A.2d 1136
(1995). No independent analysis was set forth as to any state constitutional
violation, and the Appellate Court, citing State v. Barnes, 232 Conn. 740, 744 n.4, 657
A.2d 611 (1995), refused to consider a state constitutional claim.
Connecticut courts have held, in accordance with the federal frame of
analysis, that state action concerning social and economic regulation, with some
exceptions, will survive an equal protection challenge if it satisfies a rational basis
test. Daly v. DelPonte, 225 Conn. 499, 513, 624 A.2d 876 (1993). The exceptions
relate to state action that invidiously discriminates against a suspect class, such as the
physically or mentally disabled, members of a race or gender, or state action that affects
a fundamental right. When that occurs, the action passes constitutional muster only if it
survives strict scrutiny. Id. If the statute does not involve fundamental rights or
suspect classifications, the legislation is constitutional if any difference in treatment
is rationally related to a legitimate government interest. G.D. Searle & Co. v.
Cohn, 455 U.S. 404, 408, 102 S. Ct. 1137, 71 L. Ed. 2d 250 (1982); Daily v. New
Britain Machine Co., 200 Conn. 562, 578, 512 A.2d 893 (1986); Laden v. Warden, 169
Conn. 540, 542-43, 363 A.2d 1063 (1975).
Giordano v. Giordano, supra, 189. No state ERA case alleging sex
discrimination was cited in support of the conclusion. This court concludes that the
standard is strict scrutiny in state ERA gender discrimination claims.
THE STATE ERA DOES NOT RENDER GENERAL STATUTES §§ 46b-81(c) AND
46b-82 UNCONSTITUTIONAL ON THE BASIS THAT THERE IS INHERENT GENDER BIAS DUE TO NO
PRESUMPTION OF A FIFTY-FIFTY DIVISION OF PROPERTY
The plaintiff is claiming that the two statutes, by not containing a
fifty-fifty presumption of division, discriminate based on sex in violation of the ERA,
and thus, are unconstitutional. The plaintiff is not claiming in this argument that the
statute can be read on its face as requiring a fifty-fifty presumption or that the statute
was automatically modified by the legislature's 1974 ERA passage to create a fifty-fifty
presumption. The plaintiff is also not claiming that Connecticut is a community property
state. All of these arguments have been dealt with in prior sections of this decision.
"[A] party who challenges the constitutionality of a statute bears
the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we
indulge in every presumption in favor of the statute's constitutionality. . . . In
addition to showing that [the statute] is unconstitutional beyond a reasonable doubt, [the
plaintiff] must show that its effect or impact on him adversely affects a constitutionally
protected right which he has. . . . Finally, while the courts may declare a statute to be
unconstitutional, our power to do this should be exercised with caution, and in no
doubtful case. . . ." (Citations omitted; internal quotations marks omitted.) Federal
Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 203, 660 A.2d 358 (1995); See also Connecticut
National Bank v. Giacomi, 242 Conn. 17, 44, 699 A.2d 101 (1997).
Another general proposition to be considered in a constitutional
attack on a statute is as follows: "It is also true that this court will not
ordinarily construe a statute whose meaning is plain and unambiguous. . . . This rule of
statutory construction does not apply however if, as in this case, a literal reading
places a statute in constitutional jeopardy. We are bound to assume that the legislature
intended, in enacting a particular law, to achieve its purpose in a manner which is both
effective and constitutional. . . ." (Citations omitted.) Moscone v. Manson, 185
Conn. 124, 128, 440 A.2d 848 (1981). Thus, this rule trumps the plain and unambiguous
The general proposition was tested last year in a grandparent
visitation case under General Statutes § 46b-59. Castagno v. Wholean, 239 Conn. 336,
684 A.2d 1181 (1996). Read literally the statute would have allowed "any person,
under any circumstances, to petition the court for visitation rights, no matter how remote
his or her connection to the child." Id., 340. This would conflict with the
constitutionality protected fundamental rights of family autonomy and privacy. "We
therefore construe the statute to avoid such an unreasonable interpretation." Id. To
save the statute the Supreme Court engrafted a standing requirement for the applicant to
show "that the family unit was no longer intact." Id., 337. The equitable
distribution statutes have been held by this court to be plain and unambiguous. The court
sees, initially, no obvious constitutional infirmity and, thus, is not required to
construe the statutes to avoid an unconstitutional interpretation.
A determination as to whether or not a statute violates the state
constitution requires consideration in the six following areas and approaches: (1) the
textual approach, (2) holdings and dicta of this court and the Appellate Courts; (3)
federal precedent; (4) sister state decisions or sibling approach; (5) the historical
approach, including the historical constitutional setting and debates of the framers; and
(6) economic/sociological considerations. State v. Geisler, supra, 222 Conn. 685.
This court will discuss each of these six considerations in analyzing whether or not
General Statutes § 46b-81 and § 46b-82 are unconstitutional in light of the 1974 equal
rights amendment to the constitution of Connecticut. Moore v. Ganim, 233 Conn. 557, 701
n. 17, 660 A.2d 742 (1995).
Certain of these approaches have not been briefed or argued by the
plaintiff. The plaintiff bears a heavy burden in claiming a statute unconstitutional. Monroe
v. Monroe, 177 Conn. 173, 180, 413 A.2d 819 (1979); Kellems v. Brown, 163 Conn.
478, 486, 313 A.2d 53 (1972). This court does not have to consider the approaches not
briefed. "We have repeatedly held that we will not engage in a separate
constitutional analysis where the parties do not provide us with such analysis." Associates
Financial Services of America, Inc. v. Sorenson, 46 Conn. App. 721, 724 n.5, 700 A.2d 107
(1997); State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991). Arguments that
are just mentioned but not briefed may be deemed by the court to be abandoned and not
subject to court review. Cheney v. Strasburger, 168 Conn. 135, 142, 357 A.2d 905
The plaintiff has not argued that an inherent gender bias in the
equitable distribution scheme is a result of state action. No evidence of state action, or
inaction by the state resulting in the equivalent of state action, was offered. There can
be no equal protection violation on that basis. Sheff v. O'Neill, 238 Conn. 1, 59, 678
A.2d 1267 (1996). Since the plaintiff failed to brief this argument, offer adequate
evidence or file appropriate claims of law, the plaintiff is deemed to have abandoned a
"state action" attack on the statutory scheme. Cheney v. Strasburger, supra,
In order to raise the constitutionality of a statute the plaintiff must
have standing. The issue must be in actual controversy.
To establish standing to challenge the constitutionality of a statute
one must sustain the burden of proving that the effect or impact of the challenged statute
on him adversely affects a constitutionally protected right which has. This means a right
which he proves that he has under the facts of his particular case and not merely under
some possible or hypothetical set of facts not proven to exist. [Hardware Mutual
Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698]; Adams v. Rubinow, 157
Conn. 150, 152, 251 A.2d 49; Kellems v. Brown, 163 Conn. 478, 483, 313 A.2d 53.
(Internal quotation marks omitted.) Stern v. Stern, 165 Conn.
190, 332 A.2d 78,
192 (1973). The plaintiff has not yet obtained any order under the
equitable distribution statutes but is seeking a distribution of assets under both the
alimony and property statutes. The plaintiff has standing to challenge the
constitutionality of these two statutes. The plaintiff has "such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues, upon which the court so largely depends for illumination of
difficult constitutional questions." (Internal quotation marks omitted.) Linda
R.S. v. Richard D., 410 U.S. 614, 616, 93 S. Ct. 1146, 35 L. Ed. 2d 536, 540 (1973); Baker
v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). "Standing to
raise constitutional issues, however, is not limited merely to those who seek the benefits
of a statute; if a party can demonstrate that he has sustained or is in immediate danger
of sustaining some direct injury as a result of enforcement then he has standing to
challenge such enforcement." Stern v. Stern, supra, 193; see also Linda
R.S. v. Richard D., supra, 410 U.S. 618.
1. THE TEXTUAL APPROACH
It is unclear under the first approach which document's texts are to be
analyzed, i.e., the constitution or the statute. If the text is the 1974 ERA, the only
change made in this constitutional discrimination provision was the addition of one word,
"sex." "In dealing with constitutional provisions we must assume that
infinite care was employed to couch in scrupulously fitting language a proposal aimed at
establishing or changing the organic law of the state." Stolberg v. Caldwell, 175
Conn. 586, 597, 402 A.2d 763 (1978). "Unless there is some clear reason for not
doing so, effect must be given to every part of and each word in the constitution." Id.,
597-98. Since only one word was added to a Declaration of Rights section that already
had twenty separate sections, the above two standards do not need to be applied.The
Connecticut legislature ratified the ERA to the federal constitution the year before it
amended its own state constitutional discrimination provisions, thus, creating a state
ERA. The state ERA, by adding the word "sex" to a previous Declaration of Rights
against discrimination, did what it set out to do, provide a basis of attack on statutes
and rules of law that discriminated against people by reason of sex.
The court considers that a discussion of the texts of the two statutes
in question, General Statutes §§ 46b-81 and 46b-82, is also relevant. It is clear that
the former statute, General Statutes § 46-21, authorizing alimony and property to be
awarded only to the wife, was discriminatory based on sex.
The two statutes, General Statutes § 46b-81, assigning property, and
§ 46b-82, periodic alimony, are almost identical. "The two separate statutes as they
now exist are almost identical in their statutory criteria. All of the factors of the
statute relating to alimony awards are contained within the factors enumerated in General
Statutes § 46b-81. The latter statute is more expansive in that 'liabilities' of the
parties and the 'opportunity of each for future acquisition of capital assets and income'
should also be considered, as well as the 'contribution. . . in the acquisition,
preservation, or appreciation in value of their respective estates.'" Russo v.
Russo, 1 Conn. App. 604, 606, 474 A.2d 473 (1984).
General Statutes § 46b-81 is an old statute. It was based upon the
common law principle of the husband's duty to support the wife and on the legislature's
concept of family relationships existing at that time. Stern v. Stern, supra, 165 Conn.
196. The predecessor to that statute, General Statutes § 46-21, provided that the
Superior Court may "order alimony to be paid from the husband's income, may change
her name and may order alimony pendente lite to be paid to the wife in any complaint or
cross-bill for divorce pending in said court." Exhibit 116. Accordingly, the Superior
Court did not have authority to order temporary alimony to a husband nor did the court
have the power under General Statutes § 46-21 to compel a woman to support her husband.
"The statute on its face makes distinctions on the basis of sex and thus establishes
a classification subject to scrutiny under the equal protection clause." Stern v.
Stern, supra, 194; see also Reed v. Reed, 404 U.S. 71, 75, 92 S. Ct. 251, 30 L. Ed.
2d 225 (1971); Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, 28 L. Ed. 923
(1885). This statute, the predecessor to the current statute, would appear to violate
the 1974 equal rights amendment to the Connecticut constitution. Stern was a 1973 case,
and thus, could not rule on the state ERA adopted in 1974. In dicta Stern noted that the
federal ERA, ratified in 1973 by Connecticut, would resolve this issue in the political,
not judicial, arena. Stern v. Stern, supra, 195 n. 2.
General Statutes § 46-21 was modified and recodified as General
Statutes § 46b-81 and § 46b-82. Exhibits 115 116 and 117. The legislature made the
statute sex or spouse neutral. The textual deficiency noted in Stern v. Stern was
corrected by the legislature. General Statutes § 46b-81 as recently codified, and its
sister statute, General Statutes § 46b-82, currently comply with the textual requirements
of Connecticut's constitutional equal rights amendment. Yale University of Medicine v.
Scianna, 45 Conn. Supp. 84, 92, 701 A.2d 65 (1997).
2. HOLDINGS AND DICTA OF THIS COURT AND THE APPELLATE COURTS
There are no Connecticut decisions that address the issue, whether
General Statutes §§ 46b-81 and 46b-82 violate the equal rights amendment. A footnote in O'Neill
v. O'Neill, supra, 13 Conn. App. at 310 n. 2 contains the only reference to the equal
rights amendment and that reference is dicta. This court has already discussed one case
referring to the ERA: Page v. Welfare Commissioner. The only other appellate case in which
the ERA was raised was Lockwood v. Killian, 172 Conn. 496, 500, 375 A.2d 998 (1977),
a trust case in which the opinion chose not to address the ERA issue briefed by the
The Appellate Court and the Supreme Court were well aware that trial
courts unanimously have cited with approval the nonmonetary contributions holding of
O'Neill v. O'Neill. They are equally well aware of footnote 2. No further decisions have
been rendered stating that General Statutes §§ 46b-81 and 46b-82 are not in compliance
with the equal rights amendment.
"It is well settled that a plaintiff who attacks a statute on
constitutional grounds has no easy burden." Stern v. Stern, supra, 165 Conn. 195.
"Because of the separation of powers, one claiming that a legislative enactment is
invalid on the ground that it is unconstitutional must establish its invalidity on that
ground beyond a reasonable doubt." Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d
49 (1968). "Where a statute reasonably admits of two constructions, one valid and
the other invalid on the ground of unconstitutionality, courts should adopt the
construction which will uphold the statute even though that construction may not be the
most obvious one." Id., 153; see also Carilli v. Pension Commission, 154
Conn. 1, 8, 220 A.2d 439 (1966).
The plaintiff has not cited the holdings or dicta of any Supreme Court
or Appellate Court decision, indicating that either statute is in violation of the ERA.
The trial court decision that tangentially touches on the issue is Yale School of
Medicine v. Scianna, 45 Conn. Supp. 84, 701 A.2d 65 (1997) (General Statutes § 46b-37
was deficient and its post 1974 legislative amendment making it gender neutral corrected
the deficiency). The plaintiff claims that without a presumption or a rule of application
of the various criteria of equitable distribution, there can be no objectivity as to such
a determination. "It is simply a subjective judgment call by whatever personality
happens to be sitting on the case, along with all of his or her individual idiosyncracies,
prejudices and personal rules of thumb." Thus, the statute is unconstitutional as
applied in these circumstances in violation of ERA. Engrafting a fifty-fifty presumption
to the statutory scheme saves its constitutionally, the plaintiff claims.
This argument has been rejected concerning the award of damages which
are historically not capable of mathematical certainty. Damage rules in Connecticut are
constitutional. Pisel v. Stamford Hospital, 180 Conn. 314, 343, 430 A.2d 1 (1980).
"It may be conceded that our rule gives no mathematical formula which the trier can
apply." Floyd v. Fruit Industries, Inc., 144 Conn. 659, 676, 136 A.2d 918 (1957).
Our no fault divorce statute, which contains no method of application, is constitutional. Joy
v. Joy, supra, 178 Conn. 256.
In family matters, the court exercises its equitable powers. The
balancing of equities is a matter which falls within the discretion of the trial court. Kakalik
v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). For that reason, equitable
remedies are not bound by formula but are molded to the needs of justice. Hebrew
University Assn. v. Nye, 26 Conn. Supp. 342, 348-49, 223 A.2d 397 (1966). Oneglia
v. Oneglia, 14 Conn. App. 267, 271-72, 540 A.2d 713 (1988). Lawler v. Lawler, 16
Conn. App. 193, 204, 547 A.2d 89 (1988).
(Internal quotation marks omitted.) Vandal v. Vandal, 31 Conn.
App. 561, 565, 626 A.2d 784 (1993).
The plaintiff cites Sheff v. O'Neill, 238 Conn. 1, 9, 678 A.2d 1267
(1996) for the theory that even where a statute is neutral, equal protection claims
can arise by reason of state action. Extensive evidence was taken in Sheff v. O'Neill
establishing de facto segregation in the Hartford school system despite the fact that the
subject statutes were neutral and lacking in discriminatory intent. The "state action
doctrine" was applied because the court found that the state failed to take proper
remedial action to lessen de facto racial and ethnic segregation. No evidence was offered
in this case of any state action or a pattern of state trial court decisions that
discriminated in dissolution awards by reason of sex. Only one citation is furnished to
buttress this claim. Barbara Stock, "Burning Down the House: Toward a Theory of More
Equitable Distribution," 40 Rutgers L. Rev. 1173 (1988). This is insufficient to
establish "state action."
Therefore, this court believes that the Supreme Court and the Appellate
Court would not hold the equitable distribution statutes unconstitutional based on the
standard of "holdings and dicta of this court and the Appellate Courts."
3. FEDERAL PRECEDENT
Article first of the Connecticut constitution established a
"Declaration of Rights." Section 1 (Equality of Rights) and § 20 (Equal
Protection a/k/a Equal Rights) are both contained in article first, Declaration of Rights.
We have frequently relied upon decisions of the United States Supreme
Court interpreting the fourth amendment, as well as other amendments to the United States
constitution, to define the contours of the protections provided in the various sections
of the declaration of rights contained in our state constitution. We have also, however,
determined in some instances that the protections afforded to the citizens of this state
by our own constitution go beyond those provided by the federal constitution, as that
document has been interpreted by the United States Supreme Court. State v. Dukes, 209
Conn. 98, 112, 547 A.2d 10 (1988); State v. Stoddard, 206 Conn. 157, 166, 537 A.2d
446 (1988); State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985). In so
doing, we have recognized that 'in the area of fundamental civil liberties - which
includes all protections of the declaration of rights contained in article first of the
Connecticut constitution - we sit as a court of last resort, subject only to the
qualification that our interpretations may not restrict the guarantees accorded the
national citizenry under the federal charter. In such constitutional adjudication, our
first referent is Connecticut law and the full panoply of rights Connecticut residents
have come to expect as their due. Accordingly, decisions of the United States Supreme
Court defining fundamental rights are persuasive authority to be afforded respectful
consideration, but they are to be followed by Connecticut courts only when they provide no
less individual protection than is guaranteed by Connecticut law.' Horton v. Meskill,
172 Conn. 615, 641-42, 376 A.2d 359 (1977).
State v. Marsala, 216 Conn. 150, 159-60, 579 A.2d 58 (1990).
The equal protection clause of the federal constitution and the
equal protection clause of the state constitution are in effect one and the same. They are
treated alike. "The equal protection clause of the federal and state constitution
does not deny the state the power to treat different classes of persons in different
ways." Reed v. Reed, supra, 404 U.S. 75; Barbier v. Connolly, supra, 113
U.S. 29. "The classification must be reasonable, not arbitrary, and must rest
upon some ground of difference having a fair and substantial relation to the object of the
legislation, so that all persons similarly circumstanced shall be treated alike." Royster
Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989 (1920), Stern
v. Stern, supra, 165 Conn. 193.
Under State v. Geisler, supra, 222 Conn. 672, a court
determining the constitutionality under the state constitution must analyze the provisions
of our constitution, separate and apart from any analysis under the United States
Constitution. State v. Lamme, 216 Conn. 172, 579 A.2d 484 (1990). "The
adoption of federal constitutional precedents that appropriately illuminate open textured
provisions in our own organic document in no way compromises our obligation independently
to construe the provisions of our state constitution." Id., 184.
There are no Connecticut cases that hold that equitable distribution
statutes are unconstitutional based on our ERA. The plaintiff has cited no United States
Supreme Court or federal court case holding that similar marital statutes are
unconstitutional because they discriminate on the basis of sex in violation of the equal
rights amendment to the federal constitution. This court will not conduct independent
research in this area since no separate analysis has been furnished. Associates
Financial Services of America, Inc. v. Sorenson, supra, 46 Conn. App. 724. If not
briefed or argued a court does not have to consider a constitutional argument. State v.
Wilkes, 236 Conn. 176, 183 n. 9, 671 A.2d 1296 (1996); State v. Williams, 231 Conn.
235, 247 n. 16, 645 A.2d 999 (1994); Hayes v. Smith, 194 Conn. 52, 66 n. 12, 480
A.2d 425 (1984).
4. SISTER STATE DECISIONS OR SIBLING APPROACH
In determining the specific language of the statute and/or
constitution, it may be of help to examine similar constitutional provisions or statutes
from other states. Cologne v. Westfarms Associates, 192 Conn. 48, 58-62, 469 A.2d 1201
(1984). State v. Gethers, 197 Conn. 369, 386-87, 497 A.2d 408 (1985).
In support of this prong of her constitutional argument, the plaintiff
cites two authorities pointing to the concept of marriage as a partnership.
Men and women of full age, without any limitation due to race,
nationality or religion have the right to marry and to found a family. They are entitled
to equal rights as to marriage, during marriage and at its dissolution.
The Universal Declaration of Human Rights, promulgated by the
United Nations on December 10, 1948.
Marriage is a partnership to which each spouse makes a different but
equally important contribution. This fact has become increasingly recognized in the
realities of American family living. While the laws of other countries have reflected this
trend, family laws in the United States have lagged behind. Accordingly, the committee
concludes that during the marriage each spouse should have a legally defined and
substantial right in the earnings of the other spouse and in the real and personal
property acquired as a result of such earnings. . . . Such right should survive the
marriage and be legally recognized in the event of its termination by annulment, divorce,
Report of the Committee on Civil and Political Rights to the
President's Commission on the Status of Women (1963). This quote is contained in the
preface to the Uniform Marital Property Act (1983), a statute not adopted in Connecticut.
On March 14, 1996, the American Law Institute (ALI) adopted, Principles
of the Law of Family Dissolution: Analysis and Recommendations. It calls for the
rebuttable presumption, in every dissolution action, that marital property shall be
divided so that spouses receive property which is equal in value, although not necessarily
identical in kind. ALI, Principles of the Law of Family Dissolution: Analysis and
Recommendations, p. 223 (Tentative Draft No. 2, 1996). Only two exceptions to this
division are proposed: (1) one party made an improper disposition of property, or (2)
losses need to be compensated, i.e., loss of wealth or earning capacity. Id., 319-21. The
ALI has not been adopted, nor even proposed, by any legislative action or court case in
Connecticut until this case.
A number of cases from other jurisdictions have used the concept of
partnership in marital dissolution. In Dyer v. Tsapis, 162 W. Va. 289, 291-92, 249
S.E.2d 509, 511 (1978), the court discussed equitable division statutes in which
marital property is defined. The following was contained in a footnote: "the law
which once saw marriage as a sacrament, now conceptualizes it as roughly analogous to a
business partnership." In O'Brien v. O'Brien, 66 N.Y.2d 576, 489 N.E.2d 712, 498
N.Y.S.2d 743 (1985), the court awarded the wife a 40% equitable interest in a medical
degree and license acquired by the husband during the marriage stating that New York's
1980 equitable distribution scheme was based partially on the concept that marriage is an
economic partnership. The New York statute defines marital and separate property. Another
case, deCastro v. deCastro, 415 Mass. 787, 794, 616 N.E.2d 52, 56 (1993),
acknowledged the homemaker wife's contribution to the substantial marital estate. The
court stated, "The marriage-as-partnership concept, embodied in [Massachusetts
distribution statute], recognizes that one party often concentrates on the financial side
of the family while the other concentrates on homemaking and child care." In Hanaway
v. Hanaway, 208 Mich. App. 278, 527 N.W.2d 792 (1995), the husband's investment in
business was facilitated by wife's long-term commitment to the household. In the middle of
a narrative outline of the contributions made by each party, the court stated
"marriage is a partnership." It then continued with the narrative. No authority
was given for this quote. None of these cases hold that the Connecticut type statute is
unconstitutional or must contain a fifty-fifty presumption.
The plaintiff cites three cases in support of the claim of a
fifty-fifty presumption created by the ERA: Matter of Estate of Musso, 932 P.2d 853
(Colo. Ct. App. 1997) (holding rebuttable common law presumption that a husband solely
owns all household goods unconstitutional under Colorado 1992 ERA); DiFlorido v.
DiFlorido, 459 Pa. 641, 331 A.2d 174 (1974) (holding presumption of husband's sole
ownership of household goods violates Pennsylvania ERA); Bibighaus v. Bibighaus, 66
Del. 281 (Ct. Common Pleas, Delaware County, 1979) (applied DiFlorido analysis to real
property acquired by an engaged couple in anticipation of marriage, titled in husband's
name, and ordered property petitioned and divided equally). For the reasons obvious in the
facts and holdings of these three cases, these cases are inapposite.
Legal publications both in and out of Connecticut have for years
written on the "marriage is a partnership" concept. Ann Laquer Estin, "Love
and Obligation: Family Law and the Romance of Economics," 36 Wm. & Mary L. Rev.
989, 1053-54 (1995); Judith 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, 280 (1983).
The idea is that through marriage the man and woman have joined
together (50-50) in an economic partnership, while, like partnerships generally, can be
dissolved by either party. . . . Under the partnership analogy all earnings generated by
the couple during the marriage would seem to belong to the partnership, as would anything
bought with these earnings and any earnings left unspent and saved or invested.
Stephen D. Sugarman, Divorce Reform at the Crossroads, (New Haven,
Yale University Press, 1990) 139-40.
The plaintiff also furnishes in support of incorporating partnership
concepts into equitable distribution in 1989, a Florida Law Review article by Mark A.
Sessums, "What are Wives' Contributions Upon Divorce? Toward Fully Incorporating
Partnership into Equitable Distribution," 41 Fla. L. Rev. 987 (1989). Mr. Sessums
received his law degree from the University of Florida in 1989 and prepared this article
under the auspices of the Public Service Law Fellowship Program. The article was prompted
by the passage in 1989 of a Florida equitable distribution statute setting forth specific
factors. Unlike Connecticut, Florida set forth a definition of marital assets. "In a
proceeding for dissolution of marriage, in addition to all other [equitable] remedies . .
. the court shall set apart to each spouse that spouse's nonmarital assets and
liabilities, and in distributing the marital assets and liabilities between the parties,
the court must begin with the premise that the distribution should be equal, unless there
is a justification for an unequal distribution based on all relevant factors, including. .
. ." Fla. Stat. Ann. § 61.075 (West 1989). Criticizing a number of Florida decisions
predating the statute, the author concludes, "While mathematical precision often may
be unattainable, a fairer system of property division is possible. A presumption of equal
division and a requirement that awards deviating from an equal division be justified by
factual findings, are means of providing a fairer system of property division.
Furthermore, a presumption of equal division would strongly support the idea that marriage
is an equal economic partnership. A court would presume neither spouse's marital
contributions to be superior; both parties would be entitled to an equal share in the
marital assets. The goal is to approximate real economic equality upon division by
acknowledging the interdependence of the marital roles." M. Sessums, supra, 41
Fla. L. Rev. 1029.
This court does not find this law review article persuasive for a
number of reasons: (1) the lack of case citation referring to the 1989 statute; (2) the
failure to discuss the impersonal approach required when commercial rules are imposed in a
marital relationship; (3) the failure to provide any authority for a court to impose a
fifty-fifty presumption when the legislature has not placed that presumption in the
statute; (4) the failure to account for the following changes the 1989 statute made in the
existing Florida equitable distribution scheme: (a) the addition of two new factors: (i)
each spouse's contribution toward producing marital assets and (ii) interruption of a
career or education; (b) equitable distribution is mandated in all dissolution actions;
(c) the factor of adultery was removed from the statute; and (d) the statute now contains
a definition of marital and nonmarital assets; (5) the author charges gender bias in
Florida decisions but reaches this conclusion after three footnoted paragraphs discussing
an analysis of only 36 cases performed in 1986 by others; and (6) the author
misunderstands the concept of equitable distribution. On the first page he comes to the
immediate conclusion that "Equitable distribution requires the court to distribute
marital property upon divorce based upon a presumption that marriage is a
partnership." He cites L. Golden, Equitable Distribution of Property, §§ 1.01-.04
(1983) and no other proof. The author does note that "other states have a judicial or
statutory presumption in favor of an equal division." M. Sessums, supra, 41
Fla. L. Rev. 991. None of these cases or statutes are analyzed in the law review article.
The author concludes that "the legislature should amend the equitable distribution
statute to provide a presumption that courts divide marital property equally in
dissolution actions." Id., 1035. It is the legislature of Connecticut, not the
courts, that should deal with a fifty-fifty presumption or the "marriage is a
partnership" concept. Trella v. Trella, 24 Conn. App. 219, 221, 587 A.2d 162
(1991); Martin v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997); Conway
v. Wilton, 238 Conn. 653, 678, 680 A.2d 242 (1996); Anselmo v. Cox, 135 Conn. 78,
81, 60 A.2d 767 (1945).
Three cases have been found in which a constitutional attack was
launched in a marital setting. In Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478
(1974), the N.J. equitable distribution statute was found to be constitutional under a
federal equal protection claim. In Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496
(1974), the N.J. equitable distribution statute was found constitutional under a
federal due process claim. The court in Suter v. Suter, 97 Idaho 461, 546 P.2d 1169
(1976), struck down a statute for unequal treatment on the basis of sex. "The
unequal treatment accorded a husband and wife through the operation of I.C. § 32-909 is
arbitrary on its face and demonstrates no substantial relation to the object of community
property legislation. Idaho Code section 32-909 creates an unconstitutional distinction in
the division of marital property upon divorce and therefore is a denial of the equal
protection of the laws as guaranteed in the fourteenth amendment of the Constitution of
the United States. Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d
583 (1973)." Suter v. Suter, supra, 546 P.2d 1175. The Idaho statute
provides that the wife's earnings post-separation and prior to the divorce are her
property and made no mention of the husband's earnings post-separation and prior to the
decree as being separate property. There was no separate state ERA challenge.
Despite the effort of professors, authors or publishers, the idea that
"marriage is a partnership" resulting in a fifty-fifty presumption has not found
its way into any cited statute or case law in any jurisdiction. "Constructing a legal
theory of marriage and divorce on purely economic foundations would be enormously
problematic . . . the translation of human activity into economic terms erases important
values and distinctions, such as the difference between selfishness and generosity or the
personal characteristics of individuals." A. Estin, supra, 36 Wm. & Mary L. Rev.
1016. "Economic theory is much less helpful in addressing the set of problems that
arise from ongoing redefinitions of marriage and family life." Id., 1023.
Historically, our no fault legislation, passed in the 1970's, drew
heavily from other states. The first pure no fault was in California in 1969. No cases
have been brought to the attention of this court in which any state has declared
unconstitutional, marital statutes under an equal rights analysis. Numerous sister states
have been cited by both parties, especially considering the issue of whether
"contingent resources" are property for marital distribution purposes in
Connecticut. It is plaintiff's burden to show the unconstitutionality of a statute. This
court has already engaged in extensive research and is not going to research this issue
any further since no such sister state statute and/or case law was provided under this
This court has never viewed constitutional language as newly descended
from the firmament like fresh fallen snow upon which jurists may trace our their
individual notions of public policy uninhibited by the history which attended the adoption
of the particular phraseology at issue and the intentions of its authors. The faith which
democratic societies repose in the written documents as a shield against the arbitrary
exercise of governmental power would be illusory if those vested with the responsibility
for construing and applying disputed provisions were free to stray from the purposes of
Cologne v. Westfarms Associates, supra, 192 Conn. 62.
5. THE HISTORICAL APPROACH
A. Historical constitutional setting and debates of the framers
On some occasions the historical derivation of the constitution can
shed light on the scope of the section's mandate. State v. Lamme, supra, 216 Conn. 178.
The Connecticut Constitution was adopted in 1818. It contained a Declaration of Rights,
now incorporated in article first. These Declaration of Rights were based on the first
compilation of statutes in Connecticut, Ludlow's Code of 1650. The preamble to Ludlow's
Code of 1650 read: "no mans life shall bee taken away . . . no mans person shall bee
arrested, restrained,banished, dismembered nor any way punished . . . under colour of Law
or countenance of Authority, unless it bee by the vertue or equity of some express Law of
the Country warranting the same, established by a General Courte, and sufficiently
published, or in case of the defect of a Law in any perticular case, by the word of
God." State v. Lamme, supra, 216 Conn. at 179. The Declaration of Rights
contained in article first of the Connecticut constitution has a historical basis prior to
the initial adoption of the Connecticut constitution in 1818. "'The Declaration and
supplementary statutes relating to individual rights were grounded in the Connecticut
common law and viewed as inviolate. Abridgements perpetrated by the government were
considered void on their face and courts were to refuse to enforce them.' C. Collier, 'The
Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of
Revolutionary Redefinition,' 15 Conn. L. Rev. 87, 94 (1982); see also H. Cohn & W.
Horton, Connecticut's Four Constitutions (1989) p. 18." State v. Lamme, supra,
179. "The adoption of a written declaration of rights reflected an important
change in political attitudes. 'The old pre-Revolutionary leaders thought that republican
government with legislative supremacy was the best safeguard of personal liberties. . . .
By . . . 1818, the beliefs of the old revolutionaries were replaced by the thinking of the
post-Revolutionary generation, who perceived the necessity of written guarantees . . .
[for the protection of personal rights that might not] be safe with the legislature and
the courts. . . .'" Id., 180.
The passage of the Connecticut constitution in 1818 continued what was
noted by the Supreme Court of Errors as "This solicitude for personal liberty." Jackson
v. Bulloch, 12 Conn. 38, 43 (1837). "The Connecticut constitution is an
instrument of progress, it is intended to stand for a great length of time and should not
be interpreted too narrowly or too literally so that it fails to have contemporary
effectiveness for all of our citizens." State v. Dukes, 209 Conn. 98, 115, 547
A.2d 10 (1988). In 1965, Connecticut adopted a new constitution. The current section
20 was approved in 1965 without reference to discrimination by reason of "sex"
(included in 1974 amendment in what is commonly referred to as the ERA) and "physical
or mental disability" (included in 1984 amendment).
The delegates to the 1965 state constitutional convention had a strong
commitment to ending discrimination and segregation in approving article first, § 20.
"We have to realize that today the philosophy of segregation is something that is in
the minds of us all. . . ." 2 Proceedings of the Connecticut Constitutional
Convention of 1965, p. 651, remark of Chase C. Woodhouse. "I think we all realize
that rights of individuals in this country have developed and have changed from time to
time, and we certainly would not want to have in our Constitution any language that would
in the future perhaps limit new rights." 2 Proceedings, supra, 691. "It is a
further broad statement of principle that is all inclusive and will provide a complete
umbrella for the total protection against discrimination and . . . segregation, which is
sound symbolic language." Id. 672, remarks of James J. Kennelly. These remarks
clearly indicate that the framers of the 1965 constitution intended by article first, §
20 to extend broad protection to all persons from all fears of racial and ethnic
discrimination and segregation.
This history of the 1965 constitutional convention has been cited to
support a finding that not just de jure segregation, but de facto segregation is in
violation of article first, § 20. "The convention delegates' manifest intent that
article first, § 20, by prohibiting segregation, should provide 'total protection against
discrimination'. . . supports our conclusion that they intended to encompass de facto
segregation in the circumstances presented by the present case. If significant racial and
ethnic isolation continues to occur within the public schools, for which the legislature
has an affirmative constitutional obligation to provide a substantially equal educational
opportunity, no special showing of an invidious segregative intent is required." Sheff
v. O'Neill, 238 Conn. 1, 32-33, 678 A.2d 1267 (1996).
Sheff v. O'Neill contained extensive findings of de facto
segregation in the Hartford public school system and rendered a declaratory judgment for
the plaintiffs ordering the "crafting [of] a remedial solution to the problem of de
facto racial and ethnic segregation in the public schools of Hartford." Sheff v.
O'Neill, supra, 238 Conn. 46. No evidence in this case was offered of de facto
discrimination against women by reason of the failure to read a fifty-fifty presumption
into the equitable distribution scheme. The plain language of General Statutes §§
46b-81(c) and 46b-82 is gender neutral language and demonstrates no de jure sexual
discrimination. The distinction of de jure segregation and de facto segregation was the
subject of a vigorous dissent in Sheff v. O'Neill, supra, 95. A strong argument in dissent
was that the history of article first, § 20 in the 1965 constitutional convention,
provides no support for a de facto analysis. In fact it squarely contradicts it. The first
argument is that the plain language of the text of article first, § 20 does not permit
such an expansive reading (citing Moore v. Ganim, 233 Conn. 557, 581, 660 A.2d 742
(1995)). Furthermore, the dissent notes that the 1965 constitutional convention was
convened for the narrow purpose of complying with the legislative reapportionment mandates
of the federal courts. See Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S. Ct.
1459, 1472, 12 L. Ed. 2d 632 (1964).
"Thus, the 1965 convention was not called for the purpose of a
general overhaul of the 1818 constitution. It was called primarily for the purpose of
bringing the Connecticut constitution into compliance with the then recently decided cases
of [reapportionment]." Sheff v. O'Neill, supra, 238 Conn. 106; See also Id.,
106 n. 40. The convention's purposes were conservative. The dissent concludes
"that record, moreover, affirmatively demonstrates that the delegates did not intend
'segregation' as used in article first, § 20, to include de facto segregation." Id.,
111. The dissent's view of the history of the 1965 Constitutional convention supports
this court's conclusion that the statute in question must be read narrowly, and that
history does not support an expansive meaning.
The legislative comments by two long standing members of the
Connecticut House of Representatives in 1973 clearly indicate a legislative intent to
treat women more equitably. O'Neill v. O'Neill, supra, 13 Conn. App. at 310. The
passage one year later of the ERA put this legislative intent into constitutional
language. The simple addition of the one word "sex" to article first, § 20 did
not reflect an intent by the drafters of the constitution either in 1650 (Connecticut's
charter), 1818, 1965 or 1974, that equitable distribution in Connecticut mandate a
Historical analysis also supports the general rule that if the
legislature had wished to make changes in a statute the legislature knew of pre-existing
historical considerations, pre-existing constitutional provisions and pre-existing case
law, and therefore, it would have been easy for them to do so. In a state constitutional
analysis the makers of the Constitution could have also easily made the necessary change
by specifically adding an equal presumption. By not doing so it can be assumed that the
framers of the constitution did not intend to do so. Palka v. Walker, 124 Conn. 121,
125, 198 A. 265 (1938). "A constitutional provision should not be construed so as
to defeat its evident purpose, but rather so as to give it effective operation and
suppress the mischief at which it was aimed." Id., 127.
B. Historical analysis of rights between husband and wife in
The plaintiff would have the equitable distribution scheme operate as
follows, consistent with the ERA: "This long term marriage was an equal partnership,
the baseline presumption should be that assets are divided equally, and the court's
exercise of discretion should involve determining and articulating whether the statutory
factors warrant any adjustment to the otherwise 50-50 split." Plaintiff's Memorandum
Re: Equitable Distribution Principles and Constitutional Considerations in Dissolution
Proceedings, February 24, 1997, p. 102. This statement must be examined in light of the
history in Connecticut of the rights between husband and wife.
The makers of the Connecticut constitution in 1818 and 1965 as well as
the framers of the equal rights amendment in 1974 are presumed to have known the history
of the rights between husbands and wives in marriages. These rights, created by statutes
and case law, are presumed to create a consistent body of law. J. M. Lynne Co. v.
Geraghty, 204 Conn. 361, 373, 528 A.2d 786 (1987); Trella v. Trella, 24 Conn. App.
219, 221, 587 A.2d 162 (1991). "It is a generally accepted principle of statutory
construction that the legislature is aware of the court's interpretation of a statute. . .
. Further, we presume that the legislature is aware of our interpretation of a statute,
and that its subsequent nonaction may be understood as a validation of that
interpretation." (Citation omitted.) Id., 221-22; See alsoMcDonough v.
Connecticut Bank & Trust Co., 204 Conn. 104, 119, 527 A.2d 664 (1987); Phelps
Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987).
"The family is the foundation of society; the status of husband
and wife is fixed and regulated by the State by virtue of its inherent right to settle the
foundations of social order. Indeed the family and the obligations and privileges
pertaining to it reach back of all State regulations; the family develops the State and is
coincident with the birth of man." Payne's Appeal from Commissioners, 65 Conn.
397, 402, 32 A. 948 (1895). The essential character of the relation of husband and
wife is determined by the law of nature. Mathewson v. Mathewson, 79 Conn. 23, 25, 63 A.
285 (1906). In analyzing General Statutes §§ 46b-81 and 46b-82 and the rights of
husband and wife in Connecticut from the historical approach, this court is not going to
engage in a discussion of the law of nature relating back to the foundation of mankind. It
will limit its discussion to English common law and the statutes promulgated thereby.
A dissolution of marriage (divorce) in Connecticut is a creature of
statute. Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989); Stoner v.
Stoner, 163 Conn. 345, 356, 307 A.2d 146 (1972). Although a Connecticut divorce is by
statute, some common law rights still survive. Examples of such common law rights include:
Krasnow v. Krasnow, 140 Conn. 254, 265, 99 A.2d 104 (1953) (common law
authorization for attorney's fees in divorces prior to the enactment of statute
authorizing such fees in a dissolution case); Pasquariello v. Pasquariello, 168 Conn.
579, 585, 362 A.2d 835 (1975) (the general equitable and inherent powers of Superior
Court not specifically granted by statute still provide authority to enter certain orders
in family matters that are not specifically authorized by statute); Lord v. Lord, 44
Conn. App. 370, 374, 689 A.2d 509 (1997) (court has equitable power to grant lump sum
alimony when there was no claim for relief in the complaint). "While an action for
divorce is a creature of statute, it is essentially equitable in its nature." Krasnow
v. Krasnow, supra, 261.
The Supreme Court noted in 1906 that the nature of the relationship
between a husband and wife can be affected by the changing conditions of society as well
as the passage of legislation. Mathewson v. Mathewson, supra, 79 Conn. 26-27. In
Connecticut, the rights of husband and wife, including those of property and alimony
rights upon dissolution, are established by statute. These statutes found their genesis in
English common law.
In most English speaking communities, by the law as first established,
the wife by force of the marriage lost her legal identity and the capacity of owning
property, and as incident to this she lost the power of making contracts and of suing and
being sued. But by the law as now generally established she does not by force of the
marriage lose her legal identity nor the capacity of owning property, and does not lose
the civil rights incident to this capacity. This change in status has been accomplished in
different ways and more or less gradually. In Connecticut, perhaps more fully than
elsewhere, it has been accomplished by a single radical Act of legislation, directly
reversing the former primary and controlling change in legal status affected by force of
the marriage, and such radical change more clearly involves a consequent change in the
civil rights purely incidental to the status. This consequent effect upon incidental
rights plainly comes within the rule that where the reason of law fails, the law ceases to
operate. Foot v. Card, 58 Conn. 1, 18 A. 1027 ; Hart v. Knapp, 76 Conn.
135, 139, 55 A. 1021 .
Mathewson v. Mathewson, supra, 26. This Act was the Connecticut
Married Women's Act of 1877 and will be discussed later.
"In the nineteenth century, Married Women's Property Acts,
described as the codification of equity by the legislature, were enacted to eliminate the
common law disabilities of married women, defeudalize the law of married women's property
and, importantly, to insulate a married woman's separate property from claims of her
husband's creditors." Mary Moers Wenig, "The Marital Property Law of
Connecticut: Past, Present and Future," 3 Wis. L. Rev. 807, 817 (1990).
At common law, England had no right of divorce. Prior to the Norman
conquest (1066), little or no evidence exists as to written feudal law and statutes
relating to the rights between husband and wife, most importantly as they relate to
ownership of property. Fitch v. Brainerd, 2 Day (Conn.) 163, 179 (1805).
"Difficult as it is to construct a law of husband wife for the days before the
Conquest, we can hardly doubt that during a considerable space of time, the truly feudal
age, the rights of wives and widows in the lands of their husbands were waning rather than
waxing." 2 F. Pollock and F. Maitland, The History of English Law Before the Time of
Edward I, (2d ed. 1898, reprint 1959) p. 403 n. 1. Prior to 1535, annulment was the only
method of terminating a marriage. Annulment only was granted by the Pope, under canon law
in the ecclesiastical courts of the Roman Catholic Church. H. Clark, The Law of Domestic
Relations in the United States, (1988) p. 619.
Henry VIII was the King of England from 1509 to 1547. Henry VIII sought
such an annulment from his first wife, Catherine of Aragon, so he could marry Anne Boleyn.
Pope Clement VII refused to grant the annulment despite the intervention of the then Lord
Chancellor, Thomas More. This event created a great political upheaval. In 1534 Henry VIII
caused the English Parliament to pass the Act of Supremacy. The Act of Supremacy in effect
transferred the power to grant annulments from the Ecclesiastical Church in Rome to the
Ecclesiastical Courts of the Church of England. The Anglican Church (Church of England)
was then created. The Anglican Ecclesiastical courts permitted annulments without Papal
approval. This continued until 1670 when divorces were permitted to be granted by
Parliament, but only to a small number of aristocrats. Prior to that date only annulments
were possible, but not frequently granted. In 1857, England passed the first law
permitting the public to obtain a divorce. Divorce jurisdiction then passed to the common
law courts. J. T. Oldham, "Putting Assunder in the 1990's," 80 Cal. L. Rev.
1091, 1132 n. 20 (1997) (book review).
Connecticut, on the other hand, granted the power of divorce to its
civil courts early on; thus began the independence Connecticut established from English
common law. "Our ancestors, who emigrated from England to America, were possessed of
the knowledge of the laws and jurisprudence of that country; but were free from any
obligations of subjection to them: The laws of England had no authority over them, to bind
their persons; nor were they in any measure applicable to their condition and
circumstances here." Introduction, 1 Root (Conn.) iii (1793). The early colonies of
Connecticut were subject to a number of commissions and orders which provided for courts
of limited jurisdiction, none of which provided for divorce. The community of Hartford was
granted powers in 1636 by a commission granted by the general court of Massachusetts. A
general court was then created for Hartford. Several other courts were established in New
Haven, New London and elsewhere. The Fundamental Orders of Connecticut, approved in 1639,
established courts for various purposes but did not refer either to divorce or property
rights other than references to "freeman." The various communities in
Connecticut were merged into the Connecticut colony in 1662 under a charter issued by King
Charles II. At that time the General Assembly was substituted for the general courts. In
that same year the Court of Assistants was established, and it became the Supreme Court in
1711. The first statute authorizing a divorce in Connecticut by a decree of a judicial
court was enacted in October, 1677.
The Connecticut statutes were revised in 1677 recognizing powers and
duties of the several courts then existing in the Connecticut colony. Granted to the Court
of Assistants was the exclusive jurisdiction of divorce. Reporter's Preface, 1 Conn. xi
(1843).Prior to this statute, divorces were granted, without the authority of statute, by
the courts on biblical grounds, i.e., adultery and malicious desertion. This statute
remained constant, with few minor changes, until the mid to late 19th century. Divorces
were also granted by the General Assembly. The first parliament divorce was granted in
1669. 1 Swift's Digest 23. This practice continued until the 19th century. Starr v.
Pease, 8 Conn. 541, 542 (1831).
Marriage creates contractual obligations between man and woman of
the most sacred and enduring nature. It is the basis of the family and the home and is
therefore an institution upon which rests our whole way of life. For these cogent reasons
the state has a very real and vital interest in the maintenance of the marriage bond. It
is one which cannot be dissolved by the mutual consent of the parties, as can an ordinary
contact. Recognizing that circumstances may arise which require, for the good of all
concerned, including society itself, that the parties be released from their obligations,
the legislature has prescribed that the parties may be divorced upon certain ground by the
courts. Seeley's Appeal, 56 Conn. 202,205, 14 A. 291. This does not mean that any
married person has a vested right to a divorce. Allen v. Allen, 73 Conn. 54, 55, 46 A.
242. 'As the State favors marriages for the reasons stated, so the State does not
favor divorces; and only permits a divorce to be granted when those conditions are found
to exist, in respect to one or the other of the named parties, which seem to the
legislature to make it probable that the interests of society will be better served and
that parties will be happier, and so the better citizens, separate, than if compelled to
remain together.' Dennis v. Dennis, 68 Conn. 186, 197, 36 A. 34; Morgan v.
Morgan, 103 Conn. 189, 195, 130 A. 254; Andrews v. Andrews, 188 U.S. 14, 30, 23 S.
Ct. 237, 47 L. Ed. 366; Keezer, Marriage & Divorce (3rd Ed.) § 870; 1 Nelson,
Divorce & Annulment (2d Ed.) § 2.01.
Casale v. Casale, 138 Conn. 490, 492-93, 86 A.2d 568 (1952).
Therefore, it can be concluded that for the first three hundred years in Connecticut,
divorce was not favored, and rights relating to divorce were strictly circumscribed.
About the time of the Revolution, Connecticut did not recognize
marriage settlements. At that time, England did have a policy of marriage settlements by
which certain property was set aside for the sole and separate benefit of the wife. The
Chancery Court would assume jurisdiction of such a trust and dispense of the principle and
income pursuant to her discretion as if it was her separate estate. This English method of
administrating marital settlements was found not to be appropriate for Connecticut. Mathewson
v. Mathewson, supra, 79 Conn. 30; Dibble v. Hutton, 1 Day (Conn.) 221, 223 (1804).
For most of Connecticut's history alimony could only be ordered to be
paid by the husband to the wife. Wives could not be ordered to pay alimony. Exhibit 116
(General Statutes § 46-21). Alimony is "an allowance out of the estate of the
husband made for the support to which the wife was entitled, and of which she had been
deprived through the husband's default in the performance of the marriage contract." Scott
v. Scott, 83 Conn. 634, 639, 78 A. 314 (1910). "[The liability to pay alimony] is
based upon the duty of the husband to continue to support a wife whom he has, in legal
effect abandoned." Wright v. Wright, 93 Conn. 296, 300, 105 A. 684 (1919).
These statutes only authorized courts to order husbands to pay alimony. General Statutes
§ 46-21 (formerly General Statutes § 46-52; formerly General Statutes 4556). This entire
concept was changed to spouse neutral fashion in 1973. General Statutes § 46b-82. The
term "alimony" did not appear in any statute until 1877. Stapleberg v.
Stapleberg, 77 Conn. 31, 34, 58 A. 233 (1904).
In the Introduction to the second oldest volume of reported cases
in Connecticut the following statement appears: "Divorces are granted in four cases
(viz.) for adultery, fraudulent contract, willful desertion for three years with total
neglect of duty, and seven years absence without being heard of. And the Superior Court
are authorized to allow and assign to the wife, if the innocent party, so much of the
husband's estate as they shall judge to be right and just, not exceeding one-third
part." Introduction, 1 Root (Conn.) xxvii-xxviii (1793); Benton v. Benton, 1 Day
(Conn.) 111, 112 (1803). This appears to have been the status of the divorce property
distribution law in Connecticut until the Married Women's Act of 1877 and statutes related
The descent and distribution statute, section 618 of the General
Statutes, was enacted in 1672. Divorce was added to the statute in 1677. This amendment
set forth grounds for divorce and assigned divorce to the jurisdiction of the Court of
Assistants. These rights of descent and distribution were amended by the 1877 Married
Women's Act but only for those women married before its effective date. The distribution
upon divorce did not change for those married prior to April 20, 1877. For those women
their status remained as established in 1677. "Every woman married prior to April
twentieth, eighteen hundred and seventy-seven, and living with her husband at the time of
his death, or absent by his consent, or by his default, or by accident, or who has been
divorced without alimony, where she is the innocent party, shall have the right of dower,
during her life, in one-third part of the real estate of which her husband died possessed
in his own right . . . ." General Statutes § 618 (1672).
This statute was discussed in an 1899 case in which the question was
asked, "Did our law, like that of many States, recognize a right of dower to all
lands possessed during coverture, originating in marriage and consummate on its
termination, and permit this right to be enforced on the termination of marriage by a
divorce. . . ." Brown's Appeal, 72 Conn. 148, 151, 44 A. 22 (1899). The issue
thus framed in Brown's Appeal, is similar to the main issue in this case, i.e., does a
wife have a right to a set percentage of the marital assets upon a dissolution of
marriage? In 1899 the Supreme Court of Errors stated that the issue had never been decided
in Connecticut. The court held that the act must be given the meaning that was attached to
it upon its passage in 1672. Thus, the court became engaged in a general discussion of the
history of the 1672 act and the effect or noneffect of English common law upon the meaning
of the Act of 1672. "Educated as Englishmen and subjects of the British crown, our
ancestors were mainly influenced in their laws and customs by the English law; but their
government was both unauthorized (in its beginnings) and practically independent. They
never formally adopted the common law of England; but one attempt in that direction was
made and that was abandoned without action. 4 Col. Rec. 261." Brown's Appeal, supra,
151. As to divorce and property division, the Supreme Court of Errors found
"especially in the law of marriage, divorce, land, descent and distribution, there
was a wide departure from the English law. In England the common law, following the canon
law, prohibited absolute divorce for any cause arising after a valid marriage. . . . This
view of marriage and divorce was held by the first settlers of Connecticut." 72
Conn. at 151-52. English and Connecticut law also diverged. Connecticut did not
recognize the law of dower and, by custom not statute, frequently distributed to the widow
one-third of the land for life.
The Act of 1672 (not a divorce statute) codified the rights of descent
and distribution so that every woman "should have by way of dower one-third of his
land for her natural life." General Statutes (1750 Rev.) § 618. "[This rule]
does not arise from the English [common law] but from a statute in aid of the Connecticut
law of descent and distribution." Brown's Appeal, supra, 72 Conn. 154. In 1699
the statute changed. "One-third part of the personal estate to the wife of the
intestate (if any be) forever besides her dower or thirds in the housing and land during
life." 4 Col. Rec. 307; See also Stewart v. Stewart, 5 Conn. 316, 319 (1824).
This right of a wife to one-third of the husband's assets was preserved
in Connecticut by statute in the event of a divorce. General Statutes § 618 (1672). The
1866 statute stated that "in the case of divorce, where she is the innocent party,
and no part of the estate of her husband was assigned to her for her support, shall have
the right of dower in one-third part of the real estate of at which time her husband died
possessed in his own right." General Statutes § 82 (1866).
In an 1878 case where the wife was divorced in 1865 and her ex-husband
died in 1874, the ex-wife was entitled to the one-third dower share because she requested
and received no alimony at the time of the divorce. Stilson v. Stilson, 46 Conn. 15, 19
(1878). It was noted that the wife would have given up her one-third dower share if
she had received alimony. Id., 20-21. "If Mrs. Stilson had taken alimony,
though only to the extent of a dollar, she would not have been entitled to dower, by the
express provisions of the statute. Gen. Statutes, p. 421, Sec. 82." Stilson v.
Stilson, supra, 17. The Married Women's Act of 1877 abolished dower as to all
marriages entered into after the effective date of that act.
It, therefore, appears that there was a form of equitable distribution
in Connecticut divorces. During the 17th century a form of dower existed which granted to
a divorced woman who obtained no order of alimony, a life use in one-third of her divorced
husband's estate at his death. In the 18th century the divorce statute was amended so that
the court could assign to a wife who was blameless in a divorce "such reasonable part
of the estate of her late husband, as in their discretion the circumstances of the estate
may admit, not exceeding a one-third part thereof." Public Acts 1702; See also Sanford
v. Sanford, 5 Day (Conn.) 353 (1812); Lyon v. Lyon, 21 Conn. 185, 186 (1851).
The 1877 Married Women's Act was a "radical change in public policy." Mathewson
v. Mathewson, supra, 79 Conn. 33. Parties to a marriage owned separate property. The
one-third limit of property to be assigned to the wife was eliminated. The prior act, §
4556 of the General Statutes said, "The Superior Court may assign to any woman so
divorced part of the estate of the husband not exceeding one-third." Public Acts
1911, No. 1465.
Property statutes were passed in the Connecticut colony consistent with
English common law establishing property rights of husband and wife. The first such
statute was enacted in 1637-1638. "The wife's legal identity by force of the marriage
became merged in that of her husband, and her legal capacity to own or acquire property,
real as well as personal, was lost; by force of the marriage her personal freedom was
subjected to the will or control of the husband. Mathewson v. Mathewson, supra, 79
Conn. 27. "As the law contemplates the husband wife as being but one person, it
allows them to have but one will, which is placed in the husband as the fittest and ablest
to provide for and govern the family: for this reason it gives him an absolute power over
her personal property." 1 Zephaniah Swift, A System of the Laws of the State of
Connecticut (1795) p. 194; Griswold v. Penniman, 2 Conn. 564, 565-66 (1818).
"He became the absolute proprietor of all the lands she owned at the time of the
marriage, or that descended and came to her during that time." Z. Swift, supra, p.
195; Dibble v. Hutton, supra, 1 Day (Conn.) 235. This remained essentially the law
until the Married Women's Act of 1877.
In addition, to the limited direct rights of women regarding property,
the indirect rights of women to acquire property are of interest in discussing the
historical approach. In 1672, an act was passed in which the wife who survived her husband
had the right to a life estate in one third of the land of which he stood possessed in his
own right at the time of his death. General Statutes (1750 Rev.) § 618. In 1723, the law
by which a husband acquired upon marriage an absolute right to his wife's land as well as
her personal property was altered to correspond more closely to the English common law.
The wife's property in land was suspended during coverture (marriage) and an usufructuary
estate (profits and avails of the property) only vested in the husband. The wife was
authorized by a deed, in which her husband joined, to make valid conveyances of her land;
such conveyance was the only act in the nature of a contract within her capacity. Mathewson
v. Mathewson, supra, 79 Conn. 27. Until 1890 women could not acquire title by reason
of a survivorship deed in which the co-tenant died. This was the state of married women's
property rights until the 19th century.
The law of succession regarding married women's rights in property is
also of note. Section 618 of the General Statutes originally passed in 1672 and section
630 remained the law for over a century. In 1809, married women were granted, for the
first time in Connecticut, the right to dispose of their estates, real and personal, by
will in the same manner as other persons. In 1849, a personal property act was passed by
the Connecticut legislature and personal property inherited by the wife vested in the
husband as trustee in the same fashion as did land inherited by a married woman. In 1856,
these provisions were extended to property derived from patents and copyrights, and in
1857 extended to property acquired by the wife by gift except those gifts from her
husband. Finally, in 1866 the provisions were extended to all property accruing in any way
to a married woman subsequent to 1849 and to all property belonging at the time of
marriage to any woman married since 1849. (1866 Rev.).
Regardless of these statutes dealing with property held in trust for
the sole and separate benefit of the wife, her legal status was for practical purposes
substantially ignored and was merged upon marriage with that of her husband. Therefore, up
1877, the following was the legal status of married persons:
By force of the marriage the husband acquired a life estate (under some
circumstances during the wife's life only) in all property, real or personal, then owned
or subsequently acquired by the wife; he acquired the control of the fee or reversion of
all of this property, so that it could not be disposed of without his consent; he retained
his own legal identity, the absolute ownership and control of his own property, and all
the civil rights and powers belonging to an unmarried man; but by reason of the merger of
the wife's legal identity in his own, he could not contract with her. He became legally
charged (so far as they might be enforced through law) with those duties of affection and
support inherent to the relation of man and wife. By force of the marriage the wife
acquired a right to support by her husband, but no right to charge his estate with this
support unless through an agency, real or fictitious; her capacity to own or acquire
property became suspended; the management, income and profits of her property vested
solely in her husband; her legal identity was lost in his, and therefore she had no power
to make a contract with any one, except a contract of necessity by which she might, with
consent of her husband, dispose of the fee or reversion of her property, and, like him,
she became legally charged with the duties of affection and assistance inherent to the
marriage relation. When, however, the beneficial interest in property came to a married
woman under the protection of a trustee, her rights in respect to such property came
within the jurisdiction of equity, and in entering that court, in pursuance of that
jurisdiction, man and wife alike dropped the legal status, and the incidents flowing from
that status ceased to exist. In equity they were not one person, but two distinct persons,
each capable of owning, enjoying and disposing of property within equity jurisdiction, and
consequently each capable, within that jurisdiction, of making contracts with all the
world and with each other, and of suing and being sued.
Mathewson v. Mathewson, supra, 79 Conn. 31-32. "At common
law, the primary duty of spousal support was on the husband. . . . In return, the husband
was entitled to his wife's cohabitation, services, society and affection." (Citations
omitted.) Yale University School of Medicine v. Collier, supra, 206 Conn. 33-34.
"The Puritanical theological and social order that took for granted wife's
subordination to husband had taken hold in Connecticut's jurisprudence. Women's property
rights during marriage were more limited in Connecticut than elsewhere." M. Wenig,
supra, 3 Wis. L. Rev. 843. The right of a husband to correct his wife was recognized,
and "until comparatively recent times the right of the husband to restrain the person
of his wife by confinement, for the purpose of securing her obedience, was
recognized." 1 W. Blackstone's Commentaries 444; Brown v. Brown, 88 Conn. 42, 43,
89 A. 889 (1914). This complete disappearance of the subjugation of a wife to the will
of her husband occurred upon the passage of the Married Women's Act of 1877. This rule of
obedience although not abolished by direct legislation until 1877 disappeared earlier
"under the continuous pressure of judicial interpretation or indirect
legislation." Brown v. Brown, supra, 43.
On April 20, 1877 the equality of the husband and wife in legal
identity and capacity of owning property was changed in Connecticut. Public Acts of 1877,
p. 211. This act was known as the Married Women's Act of 1877. "This legislation is
remedial,not as ameliorating an existing evil but as eradicating that evil. It is in the
nature of fundamental legislation, involving all the results necessarily flowing from the
principle established. The equal capacity to own property and the equal legal identity,
necessarily involves an equal power of making contracts and a power of contracting with
each other." Mathewson v. Mathewson, supra, 79 Conn. 32. Similar radical
legislation occurred in virtually every other jurisdiction. The Married Women's Act of
1877 "in the clearest terms declares that equality in personal identity and in the
ownership of property shall replace the unity of all rights in the husband, as the legal
status effected by intermarriage." Mathewson v. Mathewson, supra, 79 Conn. at
33-34. The 1877 act did not state that all property must be divided equally between
husband and wife. The act established equality in opportunity.
The six subsections of the 1877 statute declared the equality of each
of the participants in the marriage as to various property rights. For example, section 3
declares the equality of each in property rights secured by the survivor upon the death of
the other. "By force of the marriage husband and wife alike acquire an absolute
interest, which cannot be taken away by any testamentary disposition, in a prescribed
portion of all property, real and personal, legally or equitably owned by the other at the
time of his or her death." Mathewson v. Mathewson, supra, 79 Conn. 34. The
Married Women's Act of 1877 did not refer to property rights in regard to a divorce. The
act was silent in that regard.
The modern divorce or dissolution of marital statutes were based on the
status of the rights of husband and wife as established by the Married Women's Act of
1877. So too, the modern statutory rights of inheritance were derived from that Act.
[In this state] neither a husband nor wife acquires by virtue of the
marriage, any interest in the real or personal property of the other during that other's
Cherniack v. Home National Bank & Trust Co, 151 Conn. 367, 370,
198 A.2d 58
(1964); see generally General Statutes § 46b-36 (formerly § 46-9;
formerly § 1, Married Women's Act 1877). The 1877 act set the widow's
share at one-third for life only, in both real and personal property. That right to
one-third was not absolute; it was a right of election against the assets that passed by
the deceased spouse's will. Over "one hundred years later, the language and substance
of the 1877 Married Women's Property Act exists with little change in Connecticut's
Probate Law." M. Wenig, supra, 3 Wis. L. Rev. 854.
Upon the death of a spouse who dies with a will, the current law is
that a surviving spouse may elect a "statutory share" in the estate of the
deceased spouse of "a life estate of one-third in value of all the property passing
under the will, real and personal . . . ." General Statutes § 45a-436(a) (formerly
General Statutes § 45-273a). Upon the death of a spouse who dies without a will, the
current law is that a surviving spouse shall take varying amounts depending on the other
family members in the deceased spouse's family. These statutorily prescribed amounts are
1. If no surviving issue or parent of the decedent - 100%
2. If no surviving issue but parents - first $100,000 plus 75% of
3. If surviving issue of the decedent - first $100,000 plus 50% of
4. If surviving issue not of the marriage - 50%
General Statutes § 45a-437.
It has been noted that Connecticut's measure for spousal intestate
share, General Statutes § 45a-437, as set forth above is one of the most generous in the
country, yet its measure of a spouse's elective share, a life estate in one-third under
General Statutes § 45a-436, is one of the stingiest in the country. M. Wenig, supra, 3
Wis. L. Rev. 855.
Before the change in 1973 to the current equitable distribution scheme,
the rule as to alimony was partially punitive. The primary basis for an award of alimony
has been not to punish a guilty spouse but to continue the duty to support the other who,
in legal contemplation, was abandoned. Hotkowski v. Hotkowski, 165 Conn. 167, 170, 328
A.2d 674 (1973); Stoner v. Stoner, 163 Conn. 345, 354, 307 A.2d 146 (1972); Shrager
v. Shrager, 144 Conn. 483, 487, 134 A.2d 69 (1957). Among the circumstances to be
considered are the amount of the estate of the spouse, his or her income, age, health and
earning capacity; and the age, health, station, separate estate and earnings of the party
to be granted alimony. Tobey v. Tobey, supra, 165 Conn. 748; General Statutes §
46-21, (the pre-1973 statute).
The next major statutory changes were the current equitable
distribution statutes in 1973 and no fault divorce in 1977. P.A. 73-373, P.A. 77-169.
There were further changes: (1) various statutes became spouse neutral, (2) the ease of
obtaining a divorce under the no fault scheme, and (3) the economic effect of the women's
The 1973 acts establishing no fault divorce and equitable distribution
in Connecticut were the most significant changes since 1877. There were essentially four
changes in the scheme: (1) it was more spouse neutral, i.e., a wife for the first time in
Connecticut could be ordered to pay alimony; (2) the statute was divided into two separate
statutes, one for periodic alimony and one for property division, each with its own set of
factors; (3) despite the Uniform Marital Distribution Act (UMDA) recommendation,
Connecticut retained fault as one of the factors for both alimony and property
distribution; and (4) there was no specific mention of nonmonetary contribution of a
homemaker as a condition, contrary to the UMDA. This last factor in now contained in O'Neill
v. O'Neill, supra, 13 Conn. App. at 300. Exhibits 115, 116 and 117.
Both before and after the 1973 statutes, the appellate courts have
adhered to the great discretion granted to trial courts in family cases and the deference
with which these trial court decisions are treated upon appellate review. "Trial
courts have a distinct advantage over an appellate court in dealing with domestic
relations, where all of the surrounding circumstances and the appearance and attitude of
the parties are so significant." Rostain v. Rostain, 214 Conn. 713, 715, 573 A.2d
710 (1990); DiBerardino v. DiBerardino, 213 Conn. 373, 386-87, 568 A.2d 431 (1990).
"Each domestic relations case must be decided on the basis of the facts unique to it
and . . . great weight must be given to the decisions of the trier." Aguire v.
Aguire, 171 Conn. 312, 314, 370 A.2d 948 (1976). "Every [divorce] case . . .
presents its own peculiar facts, and authorities are not controlling." Shrager v.
Shrager, supra, 144 Conn. 487.
The legislative history of P.A. 73-373 shows no intent on the part of
the legislature to limit the meaning of the word "contribution" to solely
financial contributions. O'Neill v. O'Neill, supra, 13 Conn. App. at 310. In 1978
the legislature considered a concept, later clarified in 1988 in O'Neill v. O'Neill,
proposing to add to General Statutes § 46b-81(c)an additional criterion
"contribution of the spouse as a homemaker to the family unit." Substitute House
Bill No. 5084 (1978). The bill was never passed. As a rule of legislative intent, a
statute's purpose may be determined by the legislative silence or failure to pass an
amendment to the statute in question. This argument was made to the Supreme Court in an
attempt to overrule the "nonmonetary contribution of a spouse" rule of O'Neill.
It was not accepted by the Supreme Court. Blake v. Blake, 207 Conn. 217, 231, 541 A.2d
1201 (decided on the criterion of "station"). There have been no statutory
amendments since O'Neill was decided in 1988 that would either overrule O'Neill or shed
further light on the issues in question. Darak v. Darak, 210 Conn. 462, 471, 556 A.2d
145 (1989). Even after passage of the equitable distribution scheme in 1973
establishing specific criteria, trial courts have applied the general rule that the trial
court still has discretion to apply other equitable factors, not set forth in the statute,
in distributing marital property. Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234
(1982); Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d835 (1975).
The Women's Rights Movement is also of historical significance to
this constitutional analysis since history cannot be analyzed in a Connecticut constrained
vacuum. Mary Wollstonecraft published in England in 1792, Vindication of the Rights of
Women, arguing for equality of the sexes in all matters. Although it is debatable, the
consensus is that the Women's Rights Movement in the United States began on July 19, 1848
in the Wesleyan Chapel in Seneca Falls, New York, with the convening of the Women's Rights
Convention. At that time, "By law or by custom, an unmarried woman generally did not
vote, speak in public, hold office, attend college or earn a living other than as a
teacher, seamstress, domestic or mill worker. A married woman lived under these
restrictions and more: she could not make contracts, sue in court, divorce an abusive
husband, gain custody of her children or own property, even the clothes she wore."
Woman's Rights Brochure, Woman's Rights National Historical Park, Seneca Falls, New York,
published by the National Park Service., U.S. Department of Interior, 1994. "Though
the husband and wife are one, the one is the husband." United States v. Yazell,
382 U.S. 341, 361, 86 S. Ct. 500, 15 L. Ed. 2d 404 (1966) (Black, J., dissenting); 1
W. Blackstone, Commentaries on the Law of England (1979) (facsimile of First Edition of
1765-69). The convention was confirmed by Lucretia Coffin Mott and Elizabeth Cady Stanton
and attended by 300 men and women on July 19-20, 1848, "to discuss the social, civil
and religious conditions and rights of Women."
A Declaration of Sentiments was approved by the convention and signed
by 100 attendees. The controversial nature of the Declaration, patterned after the
Declaration of Independence, was self evident with many of the signers later removing
The history of mankind is a history of repeated injuries and
usurpations on the part of man toward woman, having in direct object the establishment of
an obsolete tyranny over her. To prove this, let facts be submitted to a candid world. . .
. He has so framed the laws of divorce, as to what shall be the proper cause of divorce,
in case of separation, to whom the guardianship of the children shall be given, as to be
wholly regardless of the happiness of women the law, in all cases, going upon the false
supposition of the supremacy of man, and giving all power into his hands. . . . He closes
against her all the avenues to wealth and distinction, what he considers most honorable to
himself. . . . In entering upon the great work before us, we anticipate no small amount of
misconception, misrepresentation and ridicule, but we shall use every instrumentality
within our power to effect our object. We shall employ agents, circulate tracts, petition
the State and national Legislatures, and endeavor to enlist the pulpit and the press in
our behalf. We hope this Convention will be followed by a series of Conventions, embracing
every part of the country."
Declaration of Sentiments, Woman's Rights Convention, July 20, 1848
(excerpts therefrom). In that same year the New York legislature
granted women the right to the possession of property they owned prior to marriage, the
first success of the 1848 convention.
Many of the early efforts of the Women's Movement were an intertwining
of the abolition, temperance and suffrage movements. In 1851 Elizabeth Cady Stanton and
Susan B. Anthony met and began their more than fifty years of collaboration to win for
women their economic, educational, social and civil rights.In 1853 Anthony proposed
changes to the New York legislature reforming property, divorce and civil rights for
women. In 1860 New York passed its version of the Married Woman's Property Act, similar in
context to the Connecticut 1877 version. The American Equal Rights Association was founded
in 1866. Wyoming (then a territory) became the first to grant suffrage to women. Susan B.
Anthony voted in 1872 in New York under the authority of the Fourteenth Amendment passed
in 1868, was arrested, convicted and fined. New York granted women suffrage in 1880. The
Woman's Political Union was formed in 1907 by Harriet Stanton Blatch, daughter of
Elizabeth Cady Stanton. Between 1890 and 1920 a number of states approved universal
suffrage. The Nineteenth Amendment to the United States Constitution was adopted on August
In 1923 the first federal equal rights amendment was proposed. Women
become a significant labor force during World War II. The civil rights movement in the
South in the 1950's provided a pattern for the implementation of further strategies
applicable to the Women's Movement. In 1961 the President's Commission on the Status of
Women was appointed, the federal Equal Pay Act was passed and two years later, The
Feminine Mystique, by Betty Friedan was published. The 1964 Civil Rights Act prohibited
job discrimination on the basis of sex or race and the Equal Employment Opportunity
Commission was created. NOW was founded in 1966 with the passage of a federal equal rights
amendment as one of its goals. President Nixon signed the ERA after passage by Congress
but it failed to be ratified by three fourths of the states by July, 1982. Title IX of the
Educational Act, preventing sex discrimination in education, was passed in 1972 and has
ramifications daily in every college and university in the country. In 1973, the United
States Supreme Court decided Roe v. Wade, and in 1974 Ella Grasso became the first woman
governor elected. Sandra Day O'Connor became the first woman Supreme Court Justice in 1981
and Geraldine Ferraro was nominated as Vice President by the Democratic Party at its 1984
It is well known that the economic outcome for women since the passage
of divorce reform legislation (no-fault and equitable distribution) has been poor.
"Even after the divorce law reform of the last twenty years, people - particularly
women - often experience serious economic disadvantages as a result of divorce." J.
T. Oldham, "Putting Asunder in the 1990's," 80 Cal. L. Rev. 1091, 1092 (July
1992). In this law review article, the author notes that there has been a finding of a 30%
drop in the standard of living in the year after a divorce. The author also notes a study
of 5,000 American families over seven years revealed a loss in real income of 19% by
divorced men and 29% by divorced women compared to 22% raise in real income by married men
and women. Another study of divorced couples in California after adoption of no-fault
divorce shows 42% rise in men's standard of living and 73% drop in women's within one year
of divorce. Id., 1096 n. 31.
This is not solely caused by the no-fault statutes but is an effect of
the application of the statute brought upon by the women's movement. In the 1973
legislative session, Representative Mary B. Griswold stated "I was one of the strong
supporters of the equal rights amendment for women and I feel that this new divorce law
will help the rights of women in this state. . . . I support this bill . . . because I
think it will make it more equitable for the women in this state." O'Neill v.
O'Neill,supra, 13 Conn. App. at 310. Professor Martha A. Fineman who testified at
trial as to the law of equitable distribution says gender bias exists in the United States
today on a case by case basis. Women are not treated equally. They fare poorer than men
after divorce. She did not testify that General Statutes § 46b-81 on its face violates
the ERA. Her interpretation of the statute is that it requires a presumption of a
fifty-fifty split. She does indicate that the statute's plain wording does not require
such a fifty-fifty presumption and admitted that the trial court must use the standards as
set forth in General Statutes § 46b-81.
In 1877, the legislature adopted "a fundamental change of public
policy." Brown v. Brown, 88 Conn. 42, 44, 89 A. 889 (1914). In 1973 that
"public policy" was further changed by a clear legislative intent. That same
year the Connecticut legislature ratified the federal ERA. The historical approach does
not demonstrate a legislative intent to make another fundamental change in public policy
in the 1973 statutes by the 1974 passage of the state ERA.
Therefore, from a consideration of the "historical approach, this
court finds that General Statutes §§ 46b-81 and 46b-82 do not violate the ERA to the
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