J. WENDT v. GARY C. WENDT
COURT OF CONNECTICUT
2000 Conn. App. LEXIS 431
4, 2000, Argued
5, 2000, Officially Released
[*1] Action for
the dissolution of a marriage, and for other relief, brought to the
Superior Court in the judicial district of Stamford-Norwalk and tried to
the court, Tierney, J.; judgment dissolving the marriage and granting
certain other relief, from which the plaintiff appealed to this court.
A. Hogan, with whom, on the brief, were Arnold H. Rutkin and Sarah S.
Oldham, for the appellant (plaintiff).
W. Hansson, with whom were Louis K. Fisher and, on the brief, John S.
McGeeney and James R. Bliss, for the appellee (defendant).
C. J., and Spear and Mihalakos, Js. In this opinion the other judges
C. J. The plaintiff in this action for the dissolution of a marriage
appeals from the judgment of the trial court. The plaintiff claims that
the court improperly (1) utilized dates prior to the date of the
dissolution of the marriage in making various calculations and divisions
regarding contingent and deferred assets of the marriage, (2) divided the
defendant's supplementary pension plan, (3) excluded from division the
passive appreciation of various assets that occurred while the action was
proceeding, (4) [*2]
concluded that General Statutes §
46b-81 was interpreted consistently with article first, §
20, of the constitution of Connecticut, (5) considered sources
outside the record in reaching its decision, (6) excluded evidence and
testimony regarding the values of termination and severance packages and
(7) demonstrated gender bias in favor of the defendant. We affirm the
judgment of the trial court.
following facts are relevant to the resolution of this appeal. n1 As of
the date of the articulated memorandum of decision, the defendant, Gary C.
Wendt, was the chairman, president and chief executive officer of GE
Capital Services, Inc. (GECS), with principal offices in Stamford. GECS is
the largest division of the General Electric Corporation (GE), which is
believed to be one of the largest corporations in the world. The
plaintiff, Lorna J. Wendt, has been throughout most of the parties'
marriage a mother, homemaker and corporate wife who entertained GE
customers and other business associates in various social and business
settings. The plaintiff was neither employed nor paid by GE or GECS.
The court authored a comprehensive and thorough memorandum of decision
articulating the complete background of the parties. The court's 500-plus
page decision no doubt is one of the longest and most exhaustive analyses
of a marital dispute in our state's history. Prior to issuing its
completed memorandum of decision on March 31, 1998, the court on December
3, 1997, issued a partial memorandum of decision detailing its financial
orders. See Wendt v. Wendt, 1997 Conn. Super. LEXIS 3104, Superior
Court, judicial district of Stamford-Norwalk at Stamford, Docket No.
149562 (December 3, 1997) (20 Conn. L. Rptr. 425) (partial opinion).
plaintiff and the defendant were married in 1965. Thereafter, the
plaintiff worked as a music teacher in Massachusetts while the defendant
studied for his master's degree in business administration at Harvard
University. The plaintiff stopped working as a music teacher after the
first of the parties' two daughters was born in December, 1968.
working in various positions, the defendant joined GECS in July, 1975, as
the vice president of the real estate department. The defendant's
employment with a major international corporation triggered an increased
workload and extensive social duties. Entertainment grew more formal and
on a larger scale, and the plaintiff commonly hosted events.
defendant met with continuous success at GECS, successfully rescuing
various financially troubled divisions within GECS, which gave him
increased prominence within GE and culminated in his promotion to chief
executive officer of GECS. The plaintiff's entertainment duties increased
with the expansion of the defendant's corporate responsibilities. She
traveled extensively with the defendant to numerous countries. During
these years, she raised the children, cleaned house, paid bills, attended
[*4] various functions and
participated in their local church. Both parties acknowledged that the
other party substantially contributed to instilling in their children high
moral and family values.
chief executive officer, the defendant proved to be highly effective and
was well deserving of his high level of compensation. The defendant's
career as chief executive officer is marked with success after success.
The defendant also participated in the parties' family life and in raising
their two children. He drove the children to camp and college, helped with
homework, attended school functions, cared for them when they were sick,
and helped them plan for college and graduate school. The defendant was
active in civic affairs and received awards for his accomplishments.
the marriage eroded and the parties were separated on December 1, 1995.
The plaintiff filed a dissolution complaint on December 19, 1995. During
an eighteen day trial, virtually every aspect of the parties' financial
relationship over the thirty-two and one-half year marriage was examined.
There were more than 100 exhibits, and numerous witnesses and multiple
expert witnesses. Briefs of counsel, and citations [*5] to foreign cases and law review articles added an additional
1500 pages of material for the court to review. On December 3, 1997, the
court entered orders regarding property distribution, alimony and related
financial matters. A subsequent memorandum of decision more than 500 pages
long containing comprehensive factual findings and legal analysis was
issued on March 31, 1998. The plaintiff appealed on May 8, 1998.
Additional facts will be discussed where necessary to the issues on
plaintiff claims that the court improperly valued various contingent and
deferred assets of the marriage. We disagree.
standard of review is well settled. We review financial awards in
dissolution actions under an abuse of discretion standard. ... To conclude
that the trial court abused its discretion, we must find that the court
either incorrectly applied the law or could not reasonably conclude as it
did. ... The factual findings of a trial court on any issue are reversible
only if they are clearly erroneous. ... A finding of fact is clearly
erroneous when there is no evidence in the record to support it ... or
when although there is evidence to support it, the reviewing court [*6]
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed. ... Where the factual basis
of the court's decision is challenged we must determine whether the facts
set out in the memorandum of decision are supported by the evidence or
whether, in light of the evidence and the pleadings in the whole record,
those facts are clearly erroneous." (Citation omitted; internal
quotation marks omitted.) Wilkes v. Wilkes, 55 Conn. App. 313, 317, 738
A.2d 758 (1999); Schult v. Schult, 40 Conn. App. 675, 682, 672 A.2d
959 (1996), aff'd, 241 Conn. 767, 699 A.2d 134 (1997).
plaintiff claims that the court improperly valued and divided assets of
the marriage as of the date of the parties' separation, December 1, 1995,
n2 instead of the date of dissolution, December 3, 1997, as it is required
to do. We disagree.
The plaintiff challenges this separation date found by the court as
arbitrary and having no significance. We disagree. The court found that
the plaintiff's "nonmonetary contributions to the marriage and her
corporate wife contributions ended on December 1, 1995." In addition,
the court stated: "(1) the children were grown and no longer living
in the marital home; (2) the parties no longer lived together and have not
been living together since December 1, 1995; (3) since December 1, 1995,
the day of separation, the wife has not been included in any GE
activities, including [during] all of 1996 and 1997; and (4) the wife is
not supportive of the husband due to the contested dissolution matter
pending in the Superior Court." These considerations make the
December 1, 1995 separation date, as found by the court, far from
[*7] "In a
dissolution action, marital property is valued as of the date of
dissolution, not the date of separation. Tobey v. Tobey, 165 Conn. 742,
748-49, 345 A.2d 21 (1974); Cuneo v. Cuneo, 12 Conn. App. 702, 533
A.2d 1226 (1987). [This] requirement is simply part of the broader
principle that the financial awards in a marital dissolution case should
be based on the parties' current financial circumstances to the extent
reasonably possible." (Internal quotation marks omitted.) Zern v.
Zern, 15 Conn. App. 292, 296, 544 A.2d 244 (1988); see also General
Statutes § 46b-81.
plaintiff's claim fails because the court did exactly what §
46b-81 and interpreting cases require: The court valued the marital
property at the date of dissolution. As the court stated in its memorandum
of decision: "This court has attempted to value the assets as of the
date of the decree, December 3, 1997. By dividing a majority of the assets
in kind, the court believes it has accomplished that result. The
contingent resources were divided by a coverture factor using the date of
separation due to the lack of plaintiff's 'contributions' after the [*8]
parties' separation. The use of this coverture factor divides the
assets as of the date of separation. These assets were valued as of the
date of the decree and merely divided as of the date of separation."
careful examination of the court's findings of fact reveals that the
court's decision was not improper. First and foremost, the court
explicitly stated that it valued the assets as of the date of the
dissolution decree. This statement even serves as a heading for one of the
subsections of the court's memorandum of decision. Indeed, with respect to
GE stock, which constitutes the majority of the value of the assets in
this case, the court expressly stated that it would divide the stock,
along with cash and mutual funds, "as of their date of decree
review of the court's reasoning reveals a careful and thoughtful
discussion of the proper distribution of the assets and that valuation
occurred at the date of the decree. n3 It is black letter law that
Connecticut is an equitable distribution property state; Krafick v.
Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995); and that this
approach to property division "does not limit,
[*9] either by timing or method of acquisition or by source of
funds, the property subject to a trial court's broad allocative
power." Id.; Tyc v. Tyc, 40 Conn. App. 562, 565-66, 672 A.2d 526,
cert. denied, 237 Conn. 916, 676 A.2d 398 (1996); annot., Divorce:
Equitable Distribution Doctrine, 41 A.L.R.4th 481 (1985). n4
The plaintiff contends that the court improperly relied on Sunbury v.
Sunbury, 216 Conn. 673, 583 A.2d 636 (1990), for the conclusion that
applying a valuation date earlier than the date of dissolution was
appropriate. Sunbury states that absent "exceptional
intervening circumstances," the date of dissolution is the
appropriate date for valuing marital assets.
Id., 676. The plaintiff argues that the court improperly
applied the exceptional intervening circumstance language, as an increase
in the value of the property postdissolution does not constitute an
exceptional intervening circumstance. Id. We need not consider this
contention, as the court's reliance on Sunbury on this ground was a
mere "alternative finding," in the court's phrasing, to the
division of assets described in the body of this opinion. [*10]
The court used an "intrinsic value" method for determining the
value of the relevant assets as of the date of dissolution. This method
arrived at a higher valuation of the defendant's unvested stock options
than did the valuation method known as the Black-Scholes method, which the
plaintiff's expert advocated. See F. Black & M. Scholes, "The
Pricing of Options and Corporate Liabilities," 81 J. Pol. Econ. 637
(1973). The Black-Scholes method of valuation "is a complex formula
which reflects the interrelationship of the fair market value of the stock
to be purchased, the exercise price of the option, the amount of dividends
to be paid on the stock over the life of the option, the 'risk-free' rate
of return at the time the option is granted, the volatility of the stock
to be purchased, and the term of the option." Snyder v.
Commissioner, 93 T.C. 529, 540 (1989). Not surprisingly, the plaintiff
does not challenge the court's choice of valuation methods. Accordingly,
we do not discuss it further.
plaintiff makes much of the fact that the court looked to the date of
separation [*11] when
considering the ultimate distribution of the assets. This consideration by
the court was not improper. The principle that requires the court to value
assets as of the date of dissolution does not absolutely preclude the
court from considering the significance of the date of separation.
"Although § 46b-81
indicates that it is the date of dissolution, rather than the date of
separation, on which the parties marital assets are to be determined ...
the date of separation may be of significance in determining what is
equitable at the time of distribution. In distributing property pursuant
to § 46b-81, the court is
instructed to consider the contribution of each spouse in the acquisition,
preservation and appreciation of the marital estate. After the date of
separation, it is not difficult to conceive that one spouse may acquire a
particular asset without any contribution from the other spouse."
(Citation omitted.) Bornemann v. Bornemann, 245 Conn. 508, 536-37, 752
A.2d 978 (1998).
Bornemann decision proves instructive. n5 In this case, the court
acted well within its discretion to consider the contributions of the
parties to the acquisition, preservation [*12]
and appreciation of the assets postseparation. The court found that
the defendant, as the chief executive officer of GECS, was partially
responsible for the extraordinary performance of GE stock when compared to
the stock market as a whole. The court further found that the plaintiff's
nonmonetary contributions to the marriage and "corporate wife"
contributions ended on December 1, 1995. Accordingly, the court concluded
that "the doubling of GE stock since the date of separation is not
due to the plaintiff's efforts."
Since the Bornemann decision was issued before the plaintiff filed
in this court her principal brief and reply brief, we fail to understand
why she failed to discuss this pivotal case in any meaningful manner in
the court made findings regarding the postseparation contributions of the
parties to the maintenance and growth of the assets, it then assigned
values for each party's contribution in accordance with those findings.
Although the plaintiff did not make corporate wife [*13]
contributions after December 1, 1995, the court concluded,
regarding GE stock, that "she should share in the general increase in
the investment community." The court awarded the plaintiff passive
stock appreciation and also gave offsetting cash awards -- $ 1,017,000 and
$ 1.7 million for unvested and vested stock options, respectively. The
defendant, in turn, received all right, title and interest in these vested
and unvested stock options free and clear of all claims by the plaintiff.
court properly valued the assets at the date of dissolution and allocated
them after taking into consideration postseparation contributions. The
court acted well within its extensive discretion regarding financial
awards in dissolution actions, and we see no reason to disturb these
plaintiff argues that the court abused its discretion in selecting various
dates to calculate a "coverture factor" for dividing various
unvested assets arising from the defendant's employment at GE.
court established various "coverture factors" for determining
the portion of an asset's value that is marital property, a calculation
that is necessary when the asset was given in exchange for work done [*14]
both during and after the marriage. The coverture factor that the
court used to divide the defendant's unvested stock options will serve as
a vehicle for the discussion of the plaintiff's claim that the coverture
factors the court used were incorrect.
coverture factor established by the court for the unvested stock options
consisted of a fraction, "the denominator of which shall be the
number of months from the date of grant to the date of vesting [when the
options no longer will be] subject to divestment, and the numerator [of
which shall] be the number of months from the date of grant to December 1,
1995 [the date of the parties' separation]." Specifically, the
plaintiff challenges the coverture numerator, contending that the court
should have used the date that the defendant's employment commenced
instead of the date that the unvested assets were granted and the date of
dissolution instead of the date of separation. We disagree.
the outset, we note that the term "coverture factor" never has
been used by our appellate courts, although in Bornemann v. Bornemann,
supra, 245 Conn. 524, our Supreme Court described a similar tool,
which it called a [*15] "time
rule." Because "coverture factor" is a new term in our
judicial lexicon, we briefly examine its origin. Coverture is defined as
"the status and rights of the wife arising from the marriage
relationship"; Ballentine's Law Dictionary (3d Ed. 1989); and has a
long history of use regarding marital assets. See Torlonia v. Torlonia,
108 Conn. 292, 296, 142 A. 843 (1928). Traditional common law
applications of coverture defined the state of a married woman whereby her
civil existence merged with that of her husband for many purposes.
Brawner v. Brawner, 327 S.W.2d 808, 811 (Mo. 1959) (en
banc), cert. denied, 361 U.S. 964, 80 S. Ct. 595, 4 L. Ed. 2d 546
(1960). Coverture implied that the woman was under the protection of
her husband and that the common law would not allow her to do anything
that might prejudice her rights or interests without his advice, consent
and approval. Id. These common-law disabilities of coverture have long
since been abolished. 41 C.J.S. 404-405, Husband and Wife §
107 (1991). In modern times, a coverture factor has reemerged as a
mechanism for apportioning between spouses the benefit or value of
unvested [*16] stock options,
retirement plans or other benefits that were earned partially during and
partially after the marriage. See In re Marriage of Short, 125 Wn.2d
865, 872, 890 P.2d 12 (1995) (en banc) (discussing "time
rule" formula). A coverture factor is a flexible concept, and
"we stress that no single rule or formula is applicable to every
dissolution case involving employee stock options. Trial courts should be
vested with broad discretion to fashion approaches which will achieve the
most equitable results under the facts of each case." In re
Marriage of Hug, 154 Cal. App. 3d 780, 792, 201 Cal. Rptr. 676 (1984).
The concept of a coverture factor has been adopted in a number of our
trial court decisions to divide marital property. E.g., Masi v. Masi,
1996 Conn. Super. LEXIS 1057, Superior Court, judicial district of
Waterbury, Docket No. 118171 (April 17, 1996); Mainville v. Mainville,
1996 Conn. Super. LEXIS 3206, Superior Court, judicial district of New
Haven at Meriden, Docket No. 251375 (December 4, 1996).
dictates on the apportionment of unvested stock options prove telling.
After examining the approaches of various jurisdictions, the court stated:
"We are persuaded that [*17] the
majority approach that apportions unvested stock options between marital
and nonmarital property according to when the options were earned provides
the most appropriate method of classification under §
46b-81. The majority approach is analogous to the approach adopted
in [ Sunbury v. Sunbury, 216 Conn. 673, 583 A.2d 636 (1990)]
wherein this court considered how and when the asset at issue was earned
in classifying it as nonmarital property. [Id.,] 676-77. In addition, by
allowing for apportionment of the options between marital and nonmarital
property based upon the contributions of each spouse toward their
acquisition, the majority approach advances the equitable purpose
underlying § 46b-81 of
recognizing the contributions of both spouses in a joint enterprise."
Bornemann v. Bornemann, supra, 245 Conn. 525. Commentators have
agreed with this conclusion. "Depending upon the nature of the
property in question, however, the court may properly consider whether the
contributions or other efforts took place before or after the parties
separated or commenced the dissolution action." A. Rutkin, E. Effron
& K. Hogan, 7 Connecticut Practice [*18] Series: Family Law and Practice with Forms (1991) §
26.13, p. 395 & nn.13-14; citing Dubicki v. Dubicki, 186
Conn. 709, 443 A.2d 1268 (1982); Papageorge v. Papageorge, 12 Conn.
App. 596, 533 A.2d 229 (1987).
plaintiff states that a coverture factor has no application where benefits
are granted entirely in recognition for past or present services. As
previously discussed, Bornemann instructs that this statement
likely is true. When applied to the facts of this case, however, it has no
court found that the "420,000 shares of [the] GE Unvested Stock
Option plan ... were granted partially for present, but largely for future
services and, therefore, a coverture factor should be used to distribute
the resource." The court also stated: "After examination of all
the witnesses' testimony and [certain exhibits], this court concludes that
the two contingent resources (restricted stock and unvested stock options)
were granted partially for future employment. None can be categorized
solely as 'golden handcuffs.' Both, though, refer to an 'incentive to
remain with GE indefinitely in the future' or similar language. All refer
[*19] to the defendant as a
long and valued employee who has performed at an extremely high level. The
GE Stock Option program 'is a vital element of the company's drive to
empower and motivate outstanding, long-term contributions by the high
performing executives who will lead GE into the 21st century.' ... '[The
stock options and restricted stock units] provide strong incentive for
continued superior performance because unexercised [stock options and
restricted stock units] for which the restrictions have not lapsed are
forfeited if the executive officer is terminated by the company for
performance or voluntarily leaves the company before retirement.' ...
of the two contingent resources (unvested stock options and restricted
stock) contain provisions for future performance and future compensation.
The restricted stock pays current 'dividend equivalents' and thus is
remuneration in part for present service. The unvested stock options also
contain elements of compensation for past and present services. Thus,
these two contingent resources are subject to distribution by use of the
coverture factor." n6
The court's discussion of stock options and their purpose is a useful one:
"Stock options for future compensation can include: specific language
to that effect in the grant documents, long-term retention of key
executives, increasing the executive's incentives and efforts, providing
security for the executive and 'golden handcuffs.' This type of option for
future compensation is granted to ensure the employee's continued
employment and future productivity. The valued employee is offered an
incentive to remain with the company because if he is no longer with the
company, the 'golden handcuff' option terminates with no payment to the
employee. These incentive stock options, awarded now, but for labor to be
expended in the future, beyond the date of dissolution, are not divisible.
Evidence of the future nature of the option is usually found in the
language of the option grant or employment agreement." See Bornemann
v. Bornemann, supra, 245 Conn. 518; In re Marriage of Short, supra,
125 Wn.2d 873.
[*20] Although the
plaintiff may dispute these factual conclusions, the determination of why
unvested stock options were granted is a factual finding that falls within
the province of the trial court and its broad discretion. See Bornemann
v. Bornemann, supra, 245 Conn. 526-27. We conclude that the court
articulated findings on the basis of ample evidence to support the
conclusion that at least a partial reason for the issuance of the
contingent assets was for the future, and not the present or past,
performance of the defendant. The plaintiff argues that the numerator of
the coverture factor should be the number of months from the date of
employment until the date of dissolution, rather than the number of months
from the date the option was granted until the date of separation. The
court's selection of the date of grant as the start date for determining
the numerator of the coverture factor appropriately accounts for the fact
that the primary purpose of the unvested stock options was to compensate
the defendant for performance occurring after the date of the granting of
the options. Accordingly, the selection of the options grant date as an
appropriate marker for calculating [*21]
coverture was within the court's discretion.
the court properly selected the date of separation as a coverture factor
because it found that the plaintiff had ceased contributing to the marital
assets on that date. As we stated in footnote 2, after December 1, 1995,
the plaintiff did not live with the defendant, raise their children, since
they already were grown, or include herself in any GE activities. Bornemann
instructs that permitting the apportionment of options on the basis of the
contribution of each spouse toward their acquisition advances the
equitable purpose of § 46b-81
of recognizing the contributions of both spouses in a joint enterprise. Id., 525. Accordingly, we conclude that the
application of the date of separation as a coverture factor was within the
plaintiff argues that the court improperly valued and divided certain
deferred compensation plans as of December 31, 1996, which is one year
prior to the dissolution date, because significant changes in value
occurred subsequent to December 31, 1996, that were unaccounted for. We
Supreme Court has noted that "a trial court, in valuing the parties'
[*22] assets upon
dissolution, has considerable discretion in selecting and applying an
appropriate valuation method. In assessing the value of ... property ...
the trier arrives at his own conclusions by weighing the opinions of the
appraisers, the claims of the parties, and his own general knowledge of
the elements going to establish value, and then employs the most
appropriate method of determining valuation. ... The trial court has the
right to accept so much of the testimony of the experts and the recognized
appraisal methods which they employed as he finds applicable; his
determination is reviewable only if he misapplies, overlooks, or gives a
wrong or improper effect to any test or consideration which it was his
duty to regard." (Internal quotation marks omitted.) Krafick v.
Krafick, supra, 234 Conn. 799-800.
the plaintiff notes five asset categories in her principal brief, her
challenge on this ground focuses on three deferred compensation plans that
the court awarded in their entirety to the defendant -- the General
Electric Savings and Security Program (401k plan), the General Electric
Deferred Incentive Compensation Plan and the General Electric [*23] Deferred Salary Plan. n7 The court used financial statements
dated December 31, 1996, which were prepared by the defendant's
The other two plans mentioned by the plaintiff are the GE restricted stock
and the General Electric Long Term Bonus Award plan. The court awarded the
plaintiff a portion of these assets.
plaintiff fixates on a single order of the court that states: "The
defendant shall pay to the plaintiff the sum of $ 2,000,000 as property
distribution to be paid on January 6, 1998." This order immediately
follows the orders granting the defendant the deferred compensation plans.
Perhaps on the basis of proximity alone, the plaintiff arbitrarily
categorizes this award as an offset for the three plans awarded to the
defendant in their entirety. n8 She then uses this assumption to argue
that the $ 2 million offset is improperly valued. She contends that since
the awards to the defendant were based on December 31, 1996, financial
data, her $ 2 million "offset" from those awards must be [*24]
increased to account for increases in interest or appreciation in
value from the time of trial.
Even the plaintiff in her principal brief shows that she is not certain
that it is an offset, calling it an "apparent off-setting
award of $ 2,000,000." (Emphasis added.)
plaintiff's argument holds no merit, as we cannot assume that the award is
an offset, let alone an improper one. There is no evidence in the court's
memorandum of decision to support the conclusion that the $ 2 million
award to the plaintiff was an offset for the allocation to the defendant
of the three previously mentioned deferred compensation plans. Merely
because the $ 2 million order follows in sequence the deferred
compensation awards does not make it an offset for those awards. Nowhere
in the court's decision does it state that the purpose of this award was
an offset for the deferred compensation plans awarded to the defendant.
the plaintiff failed to seek an articulation from the court. See Practice
Book § 4051, now [*25]
§ 66-5. It was the
plaintiff's burden, as the appellant, to file a motion for articulation
that would clarify the basis of and reasoning for the court's decision on
this ground. See Practice Book § 4051,
now § 66-5; State v. Lex
Associates, 248 Conn. 612, 633 n.3, 730 A.2d 38 (1999) (Berdon,
J., concurring in part, dissenting in part). Since the plaintiff
did not seek an articulation, she cannot now claim, on the basis of her
assumptions, that the court acted improperly. See Puris v. Puris, 30
Conn. App. 443, 450, 620 A.2d 829 (1993).
if, arguendo, we somehow credit the plaintiff's "offset"
assumption, the award and its valuation was not an abuse of the court's
broad discretion. The court took into account relevant considerations
beyond the December 31, 1996, financial statements when it issued the $ 2
million award. On July 28, 1997, the parties stipulated that the court may
take judicial notice of the price of GE stock as reported in the Wall
Street Journal at any time up until the date of its decision. The
stipulation had the effect of making the court aware of the value of the
stock-based assets, including the deferred [*26]
compensation plans, through the date of dissolution. There is no
evidence to support the conclusion that the court ignored this information
when it issued the alleged offset. "In determining whether the trial
court could reasonably conclude as it did on the evidence before it, every
reasonable presumption should be given in favor of the correctness of its
action." (Internal quotation marks omitted.) Charpentier v.
Charpentier, 206 Conn. 150, 154-55, 536 A.2d 948 (1988).
court made extraordinary efforts to ensure that the valuation and the
division of the marital property was within the bounds of our statutes,
case law and constitution. We will not disturb the court's thoughtful
analysis and conclusion, which falls well within the bounds of its broad
plaintiff contends that the court improperly divided the General Electric
Supplementary Pension Plan by relying on information not supported in the
record. We disagree.
a party challenges the factual findings of a court related to financial
awards in a dissolution action, we reverse the court's decision only if
those findings are not supported by the evidence or if, in light of the
evidence [*27] and the
pleadings in the whole record, those facts are clearly erroneous.
Wilkes v. Wilkes, supra, 55 Conn. App. 317; Rolla v.
Rolla, 48 Conn. App. 732, 737-38, 712 A.2d 440, cert. denied, 245
Conn. 921, 717 A.2d 237 (1998).
plaintiff contends that the court ignored the fact that GE considers an
employee's number of years of service, among other factors, when
determining the pension benefit amount and that the court likewise failed
to do so when calculating its financial awards. n9 We disagree.
As we discuss, the application of the supplementary pension plan to the
parties is affected by the date the defendant retires from GE. The
plaintiff's counsel stated at oral argument that it was her belief that he
no longer works at GE. The plaintiff's counsel was not aware of the
reasons for his termination or, more importantly, the date that he left
GE. Given the paucity of information before us, we will address the more
complex of the two scenarios and discuss the supplementary pension plan as
if the defendant currently is employed at GE.
pension benefits through GE are calculated using a formula that includes
as a factor "annual retirement income" calculated as 1.75
percent of average annual compensation multiplied by the number of years
of pension benefit service. This supplementary pension is available only
to high level executives of GE and is provided only to the extent that it
exceeds moneys due through GE's qualified pension plan benefits.
court ordered as follows: "The defendant is awarded all the right,
title and interest in and to the General Electric Supplementary Pension
Plan (nonqualified plan), including whatever 'retirement allowance'
payment that may be paid to the defendant by General Electric Corporation.
Said supplementary pension plan is payable to a GE executive who has
worked for five years immediately prior to his retirement or sixtieth
birthday, whichever first occurs. No vesting accrues or service credit
accrues for any employment by GE prior to that five year period. ... As of
the last day of trial in February, 1997, the defendant was fifty-four. He
has a projected retirement age of sixty-five. Therefore, all GE employment
services to be rendered by the defendant in order [*29]
to become eligible for said GE supplementary pension plan would be
court's findings regarding the supplementary pension plan and its
subsequent allocation to the defendant are not clearly erroneous. The
court did not focus on the methodology of the pension calculation to
establish the appropriate division of assets. Rather, it concentrated on
time in which entitlement to the supplementary pension arises, which, at
the time of dissolution, had not yet occurred and, assuming that the
defendant works until age sixty-five, would occur completely
postdissolution. The court ordered that in the event that the defendant
retires, dies or otherwise becomes entitled to receive any benefits from
the supplementary plan earlier than age sixty-five, and if any of the
preceding five years before that time falls before the time of the
parties' separation, n10 the plaintiff will receive one-half of an amount
determined by using a coverture factor. The court in its memorandum of
decision described specific calculations for that contingency.
The parties' separation date was December 1, 1995. If the defendant
becomes eligible for any supplementary pension benefit prior to December
1, 2000, the plaintiff will receive a portion of that benefit to the
extent that any of the last five years of the defendant's employment falls
before the separation date.
The supplementary pension plan is geared toward encouraging future
performance and allocates benefits according to the last five years of
employment or a sixtieth birthday, whichever occurs first. Accordingly,
the last five years preceding the end of employment are crucial for
determining any payments under this plan. The court properly awarded the
plaintiff moneys under the plan only if the defendant retires within five
years of the separation date. The court's reduced emphasis on the benefits
calculations on the basis of length of service was not improper. As one
appeals court noted when criticizing a trial court that held that
severance payments awarded after the marriage were distributable because
they were calculated on the basis of years of service: "The problem
with this analysis is that it fails to differentiate between entitlement
and methodology. ... The fact that severance pay is calculated based on
years of service is of no consequence. This is simply a mathematical
device unrelated to the question of the nature of the benefit and when it
was earned." Reinbold v. Reinbold, 311 N.J. Super. 460, 471, 710
A.2d 556 (App. Div. 1998).
contrary [*31] to the
plaintiff's contentions, we do not subscribe to a "building
blocks" theory whereby postdissolution earnings are subject to
division because of efforts during the marriage. Here, the service
requirements needed to vest the defendant's supplementary pension rights
will come to pass only after the plaintiff's marital contributions come to
an end. It is widely accepted that assets earned after the end of the
marriage are not marital property; Bornemann v. Bornemann, supra, 245
Conn. 521; and that in many cases, efforts during the marriage
regarding an asset do not impose a requirement to earn postmarital income
on the basis of that asset. See, e.g., Simmons v. Simmons, 244 Conn.
158, 170, 708 A.2d 949 (1998) (medical degree earned during marriage
not property subject to dissolution). The only value of the supplementary
pension during the marriage was "the possibility of the enhanced
earning capacity that it might afford sometime in the future. The
possibility of future earnings, however, represents a mere expectancy, not
a present right." Id.
the court stated, "Although [the defendant] has worked for GE for
more than five consecutive [*32] years,
it is the last five consecutive years of GE employment that vests the
supplemental pension plan." The distinctive feature of the
supplementary pension plan is that it does not vest unless the employee
retires at or after age sixty. For vesting purposes, it is not relevant
whether the executive has worked for GE over the previous five years or
the previous fifty years. The last five years of service are crucial to
receiving the supplementary pension plan benefits, and the court focused
on this aspect when dividing its assets. We therefore conclude that the
court's conclusions on this ground are not improper.
plaintiff also contends the court failed to consider certain evidence when
making its decision. Specifically, the plaintiff argues that the court
failed to consider the effect of GE's "for the good of the
company" policy regarding retirement on the supplementary retirement
plan benefits. The plaintiff also argues that the court did not read a
large document, known to the court as exhibit ninety-five, which contained
the terms of GE's supplementary pension plan, before issuing its initial
orders on December 3, 1997. We disagree.
scope of our review of a trial [*33]
court's exercise of its broad discretion in domestic relations
cases is limited to the questions of whether the [trial] court correctly
applied the law and could reasonably have concluded as it did. ... It is
the sole province of the trial court to weigh and interpret the evidence
before it and to pass upon the credibility of witnesses. ... In
determining whether the trial court could reasonably conclude as it did on
the evidence before it, every reasonable presumption should be given in
favor of the correctness of its action." (Citations omitted; internal
quotation marks omitted.) Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704
(1985); see Charpentier v. Charpentier, supra, 206 Conn. 154-55.
plaintiff first contends that the court impermissibly failed to consider
GE's "for the good of the company" policy regarding retirement.
Under this policy, if an executive between the ages of fifty and sixty
retires "for the good of the company," GE's chairman is
authorized to award a retirement allowance that in essence substitutes for
pension benefits lost to early retirement. The plaintiff's assertion is
incorrect, as the court addressed this policy [*34]
in its order regarding the supplementary pension plan. The court
stated: "The defendant is awarded all the right, title and interest
in and to the General Electric Supplementary Pension Plan (nonqualified
plan), including whatever 'retirement allowance' payment that may be
paid to the defendant by General Electric Corporation." (Emphasis
plaintiff next challenges the court's supposed failure to read the terms
of the supplementary pension plan before issuing its December 3, 1997
orders regarding dissolution. Sufficient evidence exists that the court
reviewed the supplementary pension plan before December 3, 1997. The
court's draft opinion as of that date contains references to the
supplementary pension plan. Furthermore, the court's full memorandum of
decision of March 31, 1998, discusses the plan and directly addresses this
issue, stating: "The size of exhibit ninety-five is 461 pages,
generally single spaced and often with charts of detailed financial data.
... The exhibits were read by the court in their entirety ...."
will not perform, as the plaintiff asks us to do, a microscopic
examination of the court's use of the evidence before it when issuing a
To do so would transform an appellate court into a second trial
court, and this we cannot allow. Accordingly, we conclude that the
plaintiff's claims here have no merit and that the court did not abuse its
plaintiff contends that the court improperly excluded passive appreciation
from the division of various assets. We disagree.
plaintiff first asserts that passive appreciation was excluded from
various bank and investment accounts. This claim holds no merit. Even the
plaintiff does not dispute that those assets were divided on the basis of
their value on the date of dissolution. The plaintiff now complains,
without citation to authority, that this was improper because the assets
declined in value since the time of trial. The assets apparently declined
because both parties incurred expenses during the trial. We find it
disingenuous that the plaintiff, who argues so fervently for adherence to
the dissolution date throughout this case as the talismanic basis for all
decisions, discards that date with rapidity when valuation on that date
does not benefit her monetarily.
plaintiff next argues that she was excluded from the passive appreciation
of deferred [*36] compensation
programs. The court's findings in this area were well within its
discretion. The court found that the doubling in value of GE stock since
the date of the parties' separation was not due to the plaintiff's
efforts. Second, the court remarked extensively on the success of GECS
and, indirectly, GE, since the defendant became the chief executive
officer of GECS in 1985. The court stated: "It appears from [the 1996
draft annual report of GE and letters to shareholders] the GECS was a
small but growing part of a very large company in 1983. It appears that
GECS was a large but growing part of a large company in 1996. ... The
growth at GECS demonstrates the results of this twelve year leadership.
GECS earnings increased from $ 271 million in 1983 to $ 2.81 billion in
1996, a tenfold increase. This is approximately 20 percent compounded
annual growth for the last thirteen years. In 1983, GECS was responsible
for slightly more than 13 percent of GE's net earnings, and in 1996 that
percentage grew to slightly less than 39 percent."
court further stated: "In an article in the January 13, 1997 issue of
the Wall Street Journal, it was noted that GE 'when it reports record 1996
[*37] earnings this week, it
is likely to emerge as the most profitable company in the [United
States].' ... GECS appears prominently in the article. GECS 'assets
totaled $ 186 billion at the end of 1995, up 46 percent in two years; if
it were a bank, it would have been the third biggest in the [United
States].... It is clear to this court that [John E.] Welch [the chief
executive officer of General Electric] has made a substantial contribution
to the [parties'] assets, clearly more than the plaintiff. As [the chief
executive officer] of the equally successful GECS, so did the
court stated that even the plaintiff's own valuation expert noted in his
report that "'[the defendant] has been employed by GE since 1975, and
is currently the chief executive officer of GE Capital and a senior vice
president for GE. It has been his efforts in the last ten years that have
driven the growth of GECS and resulted in significant improvement in the
value of GE stock.'"
plaintiff in her principal brief makes the baseless assertion that
"the evidence before the court and the fact that the defendant was a
GE employee did not warrant the court's assumption that [the]
[*38] defendant was
solely responsible for the increase in value of the options on GE stock
and other GE provided benefits." Even a cursory glance at the court's
lengthy memorandum of decision, as highlighted by the previously quoted
statements, reveals that the plaintiff's assertion totally is without
merit. The plaintiff does not provide a single citation from the court's
decision where it made or even remotely implied this assumption. We
therefore conclude that the plaintiff's contentions hold no merit.
plaintiff contends that the court improperly failed to find that division
of marital property pursuant to § 46b-81
should be based on a presumption that each partner to the marriage is
entitled to an equal share and that the absence of such a presumption
violates the equal rights amendment (ERA) to our state constitution. See
Conn. Cont., art. I, § 20.
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 [*39] doubt, [the
plaintiff] must show that its effect or impact on [her] adversely affects
a constitutionally protected right which [she] 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 quotation marks omitted.) Federal Deposit
Ins. Corp. v. Voll, 38 Conn. App. 198, 203, 660 A.2d 358, cert.
denied, 235 Conn. 903, 665 A.2d 901 (1995); see Connecticut
National Bank v. Giacomi, 242 Conn. 17, 44, 699 A.2d 101 (1997). An
equal protection challenge must be established by a "showing of
intentional or purposeful discrimination." Golab v. New Britain,
205 Conn. 17, 26, 529 A.2d 1297 (1987). "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." Moscone
v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981).
plaintiff contends that the ERA engrafts a presumption onto §
46b-81 that the property be equally divided between the spouses.
The plaintiff [*40] concedes
in her principal brief that "the statutes relating to dissolution
provide no baseline or initial presumption from which the court is to
operate," and she cannot and does not point to a single Connecticut
appellate decision that states, advocates or implies that a fifty-fifty
presumption is appropriate. Yet, in spite of this jurisprudential void of
support, she in essence argues as follows: The statute does not contain
any guidelines on how to apply its criteria. The application is left 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. We disagree.
start with the plain meaning of the statute. "It is well settled that
a statute must be applied as its words direct." (Internal quotation
marks omitted.) Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn.
App. 397, 400, 689 A.2d 1132, cert. denied, 240 Conn. 926, 692 A.2d
1282 (1997). General Statutes §
46b-81 (c) directs the court to consider numerous separately listed
criteria. No language of presumption is contained in the statute. n11
Indeed, § 46b-81 (a) permits
the farthest [*41] reaches
from an equal division as is possible, allowing the court to "assign
to either the husband or wife all or any part of the estate of the
other. ..." (Emphasis added.) The claimed equal division presumption
is not part of the statutory criteria. On the basis of the plain language
of § 46b-81, there is no
presumption in Connecticut that marital property should be divided equally
prior to applying the statutory criteria.
Unlike Connecticut, a number of states have decided to place just such a
presumption into their marital distribution statutes. See, e.g., W. Va.
Code § 48-2-32 (c) (1998);
Ohio Rev. Code Ann. § 3105.171
(C) (1) (Baldwin 1995).
some decisions in other jurisdictions have refused to make a fifty-fifty
division of property when requested to do so by litigants. For example, in
Luedke v. Luedke, 487 N.E.2d 133 (Ind. 1985), the Supreme Court of
Indiana vacated the opinion of the Court of Appeals and declared that
Indiana's distribution statute does [*42]
not require a fifty-fifty split.
Id., 134. The Luedke court reasoned that a required
fifty-fifty 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." Id. n12
Subsequent to the decision in Luedke, the Indiana legislature
enacted into law an equal division presumption. See Ind. Code §
31-1-11.5-11(c); Kirkman v. Kirkman, 555 N.E.2d 1293, 1294 (Ind.
the plaintiff's argument to persuade us would be, in effect, to write a
community property law by judicial fiat. See Fischer v. Wirth, 38
A.D.2d 611, 612, 326 N.Y.S.2d 308 (1971) [*43]
("what appellant really seeks is a community property division
under the guise of equitable relief"). In sum, in the absence of
specific statutory language, there is no presumption of an equal property
distribution in Connecticut. "The legislative intent is to be found,
not in what the legislature intended to say, but in the meaning of what it
did say. ... We must construe a statute without reference to whether we
feel that it might be improved by adding to it or interpreting it
differently. ... It is our duty to apply the law, not to make it."
(Citations omitted.) Commissioner of Administrative Services v. Gerace,
40 Conn. App. 829, 832-33, 673 A.2d 1172 (1996), appeal dismissed, 239
Conn. 791, 686 A.2d 993 (1997). "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." (Internal quotation marks
omitted.) Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8
(1988). As Luedke and the trial court rightly note, the
application of this suggested presumption by appellate [*44]
decree would deprive the trial court of a substantial portion of
its power and discretion. See State v. Corchado, 200 Conn. 453, 464,
512 A.2d 183 (1986).
equitable award does not require that the marital estate be divided
equally." In re Marriage of Petrovich, 154 Ill. App. 3d 881, 887,
507 N.E.2d 207, 107 Ill. Dec. 543, appeal denied, 116 Ill. 2d 556,
515 N.E.2d 125, 113 Ill. Dec. 316 (1987); see also Avramis v.
Avramis, 245 A.D.2d 585, 586, 664 N.Y.S.2d 885 (1997); Guziak v.
Guziak, 80 Ohio App. 3d 805, 814, 610 N.E.2d 1135 (1992). The
plaintiff has submitted no supported argument that persuades us to create
a fifty-fifty presumption of property division in our state. The court
properly found that no such presumption exists, and we agree with its
plaintiff also claims that the absence of a fifty-fifty presumption in
property distribution matters violates the ERA. We disagree.
we discussed in part IV of this opinion, "legislation is presumed to
be constitutional, and a litigant challenging its validity has the heavy
burden to establish its unconstitutionality [*45]
beyond a reasonable doubt." Stafford Higgins Industries,
Inc. v. Norwalk, 245 Conn. 551, 566, 715 A.2d 46 (1998). The plaintiff
concedes, as she has no choice but to do, that Connecticut's property
distribution statute, § 46b-81,
is gender neutral on its face. Although at one time it did discriminate on
the basis of sex; see Stern v. Stern, 165 Conn. 190, 194, 332 A.2d 78
(1973); these infirmities have long since been cured.
equal protection clause does not require absolute equality or precisely
equal advantages .... Rather, a state may make classifications when
enacting or carrying out legislation, but in order to satisfy the equal
protection clause the classifications made must be based on some
reasonable ground. ... To determine whether a particular classification
violates the guarantees of equal protection, the court must consider the
character of the classification; the individual interests affected by the
classification; and the governmental interests asserted in support of the
classification. ... Where the classification impinges upon a fundamental
right or impacts upon an inherently suspect group, it will be subjected
[*46] to strict scrutiny and
will be set aside unless it is justified by a compelling state interest.
... On the other hand, where the classification at issue neither impinges
upon a fundamental right nor affects a suspect group it will withstand
constitutional attack if the distinction is founded on a rational
basis." (Internal quotation marks omitted.) State v. Matos, 240
Conn. 743, 760-61, 694 A.2d 775 (1997).
plaintiff also has provided no evidence to support her argument that §
46b-81 disparately impacts women. The court found that "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." We agree. Even assuming, arguendo,
that the plaintiff could prove that a disparate impact exists, an equal
protection challenge cannot be supported on that basis alone. Intentional
or purposeful discrimination must be shown to make a successful equal
protection challenge. Golab
v. New Britain, supra, 205 Conn. 26.
plaintiff attempts to transform Sheff v. O'Neill, 238 Conn. 1, 678 A.2d
1267 (1996) (en banc), [*47]
into a new pronouncement of law that allows state constitutional
challenges on the basis of disparate impact. In Sheff, our Supreme
Court held that the legislature was required to remedy both de jure and de
facto segregation in public schools.
Id., 29-30. The court did not intend to allow state
constitutional challenges on the basis of disparate impact, and it ruled
as it did because it relied in part on the "independent
constitutional significance" of the word "segregation" in
article first, § 20, of our
state constitution and the affirmative constitutional obligation to
provide a substantially equal educational opportunity under article
eighth, § 1. Id.,
subsequent to Sheff reveal that the Supreme Court did not open the
door to disparate impact challenges. For instance, the court's ruling in Shawmut
Mortgage Co. v. Wheat, 245 Conn. 744, 717 A.2d 664 (1998), is
instructive. In Shawmut Mortgage Co., the defendant challenged
General Statutes § 31-228,
which provides for foreclosure protection for unemployed persons, but not
to individuals who have never been in an employee-employer relationship. Shawmut Mortgage Co. v. Wheat, supra, 754. [*48]
The court rejected the equal protection challenge to the statute,
reiterated its holding in Golab v. New Britain, supra, 205 Conn. 26,
and concluded that an insufficient record existed to show "that the
purpose or intent of the mortgage act is to discriminate." Shawmut
Mortgage Co. v. Wheat, supra, 755 n.9. Therefore, we follow Shawmut
Mortgage Co. and Golab, and conclude that a showing of
discriminatory impact alone cannot provide the basis for the plaintiff's
plaintiff also has provided no evidence to support her argument that §
46b-81, without a fifty-fifty presumption of division, possesses
discriminatory intent, as Golab requires. In its memorandum of
decision, the court stated that "the plain language of General
Statutes § § 46b-81 (c) and
46b-82 is gender neutral language and demonstrates no de jure sexual
discrimination." The statute is gender neutral on its face and in its
intent, and no evidence has been presented to show otherwise. The
plaintiff in her principal brief makes the bald assertion that not having
a fifty-fifty presumption creates a special exception for wealthy
litigants in divorce [*49] cases,
and allows "an extremely wealthy wage earner to shirk the
responsibilities of equitable division of property [and] would
discriminate against the vast majority of lower income divorcing partners
mere fact that § 46b-81 is
not so specific as to require a fifty-fifty presumption does not render
the statute unconstitutional. In Joy v. Joy, 178 Conn. 254, 255, 423
A.2d 895 (1979), our no fault divorce statute was challenged on the
ground that it fails to impose judicial standards or guidelines that limit
discretionary fact-finding by trial courts.
Id., 256. Our Supreme Court held the statute to be
constitutional even though the provision contained no objective
guidelines. Id., 255-56.
"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. Furthermore, in Lane v. Lane, 187 Conn. 144,
146, 444 A.2d 1377 (1982), [*50]
our Supreme Court rejected an equal protection claim that was based
on the alleged refusal of the trial court to consider the husband's
contributions to the support of the family rather than only the wife's
contributions. The court rejected this argument, stating "that the
trial court considered all relevant factors. The court was not required to
recite all of them ... or make specific findings concerning each."
(Citation omitted.) Id.
the court in this case rightly stated: "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 [New York] Convention;
the Married Women's Act of 1877 in Connecticut [Public Acts 1877, c. 114,
now General Statutes § 46b-36];
the nineteenth amendment to the United States Constitution, ratified in
Connecticut on September 14 and 20, 1920; and the ERA to the Connecticut
constitution, adopted November 27, 1974. This historical progression,
while compelling, does not warrant the results the plaintiff seeks. The
plaintiff seeks, by judicial fiat, to declare unconstitutional, statutes
in order to correct an economic disorder." We agree with the court
and [*51] conclude that the
plaintiff has not successfully proven a violation of the ERA.
plaintiff contends that the court improperly relied on sources outside the
record. We disagree.
party may successfully attack a court's conclusions if it is found that
the court "relied on matters not in evidence or not properly in
evidence as a basis for its conclusions." Velsmid v. Nelson, 175
Conn. 221, 224, 397 A.2d 113 (1978); Main v. Main, 17 Conn. App.
670, 675, 555 A.2d 997, cert. denied, 211 Conn. 809, 559 A.2d 1142
illustrate the court's reliance on matters not in evidence as a basis for
the court's conclusions, the plaintiff points to a footnote in the
memorandum of decision in which the court expresses gratitude for
assistance from an individual and various academic institutions. n13 This
statement does not articulate the nature of the assistance, the
significance of the assistance or whether the assistance directly involved
the marriage and assets of the plaintiff or the defendant. Furthermore,
the plaintiff does not point to any place where the record is developed on
this issue. "It is the appellant's burden to provide [*52]
an adequate record for review. Practice Book [ §
60-5] .... It is, therefore, the responsibility of the appellant to
move for an articulation or rectification of the record where the trial
court has failed to state the basis of a decision ... to clarify the legal
basis of a ruling ... or to ask the trial judge to rule on an overlooked
matter." (Internal quotation marks omitted.) State v. Collic, 55
Conn. App. 196, 209, 738 A.2d 1133 (1999). If a court denies a motion
for articulation or merely restates its original decision, the burden
remains with the appellant to perfect the record or seek appellate review
of the court's response. E.g., Dime Savings Bank of Wallingford v.
Cornaglia, 33 Conn. App. 549, 554-55, 636 A.2d 1370, cert. granted, 229
Conn. 907, 640 A.2d 120 (1994) (appeal withdrawn October 17, 1994).
Accordingly, an insufficient record exists to review this claim, and we
thus decline to afford review. n14
The court stated: "This court wishes to express thanks to the
following for their assistance in the preparation of this memorandum of
decision: Villanova University, Harvard University, Princeton University,
Bucknell University, Pennsylvania State University and Rose Ann
The plaintiff also contends that various references by the court to other
high profile divorces was improper. This argument holds no merit. The
court stated in its memorandum of decision that those references merely
were "examples of spousal contributions to a high asset
marriage" and cautioned that "the outcome of one dissolution
litigation should not control the outcome of another."
plaintiff contends that the court improperly excluded evidence and expert
testimony relating to the value of termination and severance packages
available to executives. We disagree.
is well established that the trial court has broad discretion in ruling on
the admissibility [and relevancy] of evidence. ... The trial court's
ruling on evidentiary matters will be overturned only upon a showing of a
clear abuse of the court's discretion. ... Moreover, it is well settled
that before a party is entitled to a new trial because of an erroneous
evidentiary ruling, he or she has the burden of demonstrating that the
error was harmful. ... When determining that issue in a civil case, the
standard to [*54] be used is
whether the erroneous ruling would likely affect the result."
(Citations omitted; internal quotation marks omitted.) New England
Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301
(1996); see Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206
plaintiff first challenges the court's quashing of a subpoena for the
testimony of William Conaty, a GE executive who the plaintiff claims was
responsible for negotiating severance packages or other benefits
replacements for executives at the defendant's level. The plaintiff's
argument spans less than one quarter-page of text in her principal brief,
offers no reasoning, presents no citations to authority and does not
articulate why the quashing of the subpoena was improper or what harm it
caused. n15 "Assignments of error which are merely mentioned but not
briefed beyond a statement of the claim will be deemed abandoned and will
not be reviewed by this court." (Internal quotation marks omitted.) Food
Studio, Inc. v. Fabiola's, 56 Conn. App. 858, 864, 747 A.2d 7 (2000).
We therefore will not review this part of the plaintiff's claim.
The plaintiff's entire argument on this issue in her briefs to this court
is as follows: "[The] plaintiff sought to take the deposition or
summon to trial William Conaty, a GE executive who had been identified as
the one responsible for negotiating severance packages or other benefits
replacements for executives at the defendant's level. (Ex 99). The
subpoena for that testimony was quashed by the court."
plaintiff's next challenge focuses on the excluded expert testimony of
Perry Anderson, who she claims would have testified about the practices of
executive compensation committees in putting together executive benefits
packages. The court stated that its rationale, in part, for not permitting
Anderson to testify was that the plaintiff had rested her case except for
three issues and that Anderson's proffered testimony was not pertinent to
those topics. Further, the disclosure of Anderson was belated. The
plaintiff has not convinced this court that the trial court's ruling was
improper or that it caused the plaintiff any harm at trial that was likely
to affect the trial's result. We therefore conclude that the court did not
abuse its discretion in excluding Anderson's proffered testimony.
plaintiff's final claim involves an accusation that the court improperly
exhibited gender bias at trial in favor of the defendant and against the
plaintiff. We disagree.
of judicial bias or misconduct implicate the basic concepts of a fair
trial. ... The appearance as well as the actuality of [partiality] on the
part of the trier will suffice to constitute proof of bias [*56] sufficient to warrant disqualification. ... Canon 3 (c) (1)
provides in relevant part: A judge should disqualify himself or herself in
a proceeding in which the judge's impartiality might reasonably be
questioned, including but not limited to instances where: (A) the judge
has a personal bias or prejudice concerning a party .... State v.
Montini, 52 Conn. App. 682, 694, 730 A.2d 76, cert. denied, 249
Conn. 909, 733 A.2d 227 (1999)." (Internal quotation marks
omitted.) State v. Dumas, 54 Conn. App. 780, 790-91, 739 A.2d 1251,
cert. denied, 252 Conn. 903, 743 A.2d 616 (1999).
prevail on its claim of a violation of this canon, the plaintiff need not
show actual bias. The plaintiff has met [her] burden if [she] can prove
that the conduct in question gave rise to a reasonable appearance of
impropriety. We use an objective rather than a subjective standard in
deciding whether there has been a violation of canon 3 (c) (1). Any
conduct that would lead a reasonable [person] knowing all the
circumstances to the conclusion that the judge's impartiality might
reasonably be questioned is a basis for the judge's [*57]
disqualification. Thus, an impropriety or the appearance of
impropriety ... that would reasonably lead one to question the judge's
impartiality in a given proceeding clearly falls within the scope of the
general standard .... The question is not whether the judge is impartial
in fact. It is simply whether another, not knowing whether or not the
judge is actually impartial, might reasonably question his ...
impartiality, on the basis of all of the circumstances." (Internal
quotation marks omitted.) Abington Ltd. Partnership v. Heublein, 246
Conn. 815, 819-20, 717 A.2d 1232 (1998); Dubaldo v. Dubaldo, 14
Conn. App. 645, 649, 542 A.2d 750 (1988).
course, "gender bias, particularly bias based on stereotypes, has no
place in the courtroom." (Internal quotation marks omitted.) State
v. Figueroa, 235 Conn. 145, 185, 665 A.2d 63 (1995). The plaintiff
points to various events that she believes constitute gender bias against
her. First, the court denied her motions seeking to limit the defendant's
freedom to transfer assets. Second, the court awarded her an allegedly
insufficient portion of the defendant's long-term performance [*58]
award. Third, the court refused to grant her exclusive possession
of the marital home. Fourth, the court refused to recognize, in the
plaintiff's words, that "the marriage relationship is a partnership
of equals similar to an economic partnership."
than raise these claims of alleged bias at the time of their occurrence,
the plaintiff decided to wait nearly one year after the trial was
completed to make these challenges. "Claims alleging judicial bias
should be raised at trial by a motion for disqualification or the claim
will be deemed to be waived. Barca
v. Barca, [15 Conn. App. 604, 607, 546 A.2d 887, cert. denied, 209
Conn. 824, 552 A.2d 430 (1988)]. A party's failure to raise a claim of
disqualification at trial has been characterized as the functional
equivalent of consenting to the judge's presence at trial.
Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985)."
(Internal quotation marks omitted.) Churchill v. Allessio, 51 Conn.
App. 24, 38, 719 A.2d 913, cert. denied, 247 Conn. 951, 723 A.2d
324 (1998); see Practice Book § 997, now § 1-23.
plaintiff's delay in raising her [*59]
claims stems from little more than an attempt to manufacture cause
for remand. "Our Supreme Court has criticized the practice whereby an
attorney, cognizant of circumstances giving rise to an objection before or
during trial, waits until after an unfavorable judgment to raise the
issue. We have made it clear that we will not permit parties to anticipate
a favorable decision, reserving a right to impeach it or set it aside if
it happens to be against them, for a cause which was well known to them
before or during the trial." (Internal quotation marks omitted.) L
& R Realty v. Connecticut National Bank, 53 Conn. App. 524, 543, 732
A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999),
citing Timm v. Timm, supra, 195 Conn. 205. On these grounds alone
the plaintiff's claims of bias must fail.
the grave nature of the plaintiff's accusation, we also must address it in
substance. "Of all the charges that might be leveled against one
sworn to 'administer justice' and to 'faithfully and impartially discharge
and perform all the duties incumbent upon me' ... a charge of bias must be
deemed at or near the very top in seriousness,
[*60] for bias kills
the very soul of judging -- fairness." (Citation omitted.) Pac-Tec,
Inc. v. Amerace Corp., 903 F.2d 796, 802 (Fed. Cir. 1990), cert.
denied sub nom. Perry v.
Amerace Corp., 502 U.S. 808, 112 S. Ct. 49, 116 L. Ed. 2d 27, 112 S. Ct.
Evans v. Commissioner of Correction, 37 Conn. App. 672, 676-77 n.6, 657
A.2d 1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995), we
cautioned a litigant, who questioned whether a habeas judge had read
certain materials, against even the inadvertent casting of aspersions on
the habeas court. Even though counsel in Evans stated at oral
argument that she did not intend to challenge the integrity of the court,
we stated that "we caution counsel against making statements not
intended to question the court's integrity but that might be construed in
that manner." Id.
this case, the plaintiff's counsel not only ignores our warning in Evans,
but crosses the invisible line delineating ethical and unethical conduct.
Unlike counsel in Evans, her attack is by no means inadvertent, but
a direct, groundless assault on the integrity of the trial court.
is an elementary rule of law that the "fact that a trial court rules
adversely to a litigant, even if some of these rulings were to be
determined on appeal to have been erroneous, does not demonstrate personal
bias." Bieluch v. Bieluch, 199 Conn. 550, 553, 509 A.2d 8 (1986);
see State v. Fullwood, 194 Conn. 573, 582, 484 A.2d 435 (1984); Hartford
Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778
(1984); State v. Fuller, 56 Conn. App. 592, 627 n.34, 744 A.2d 931,
cert. denied, 252 Conn. 949, 748 A.2d 298 (2000).
plaintiff's own trial pleadings reveal that her counsel knew or should
have known that there were no good grounds to support this challenge.
Practice Book § 997, now § 1-23, provides that "[a] motion to disqualify a judicial
authority shall be in writing and shall be accompanied by an affidavit
setting forth the facts relied upon to show the grounds for
disqualification and a certificate of the counsel of record that the
motion is made in good faith. ..." We have noted that "this
provision creates a mandatory procedure to be followed by any party [*62]
seeking to recuse a judge." State v. Weber, 6 Conn. App.
407, 412, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771
the plaintiff's counsel did file an affidavit as required by Practice Book
§ 997, now § 1-23, this procedure was followed in form only. The affidavit
is three paragraphs in length and contains no facts supporting the demand
for disqualification. The plaintiff states in her affidavit little more
than that she read the motion and that its facts are true. Indeed, the
court criticized the motion on similar grounds, stating: "The
affidavit of facts is merely conclusionary, signed by [the plaintiff].
There is insufficient affidavit of facts. It just says that I have read
the enclosed motion, which does have a section of facts, but she does not
indicate affidavit of facts. That on its own is sufficient to deny the
motion to disqualify."
appeal, the plaintiff's counsel fares no better. Her appeal does not point
to a single fact that tends to show bias by the court. When questioned by
this court at oral argument, the plaintiff's counsel again failed to point
to a single supporting factual ground. In short, the [*63]
plaintiff's efforts to raise the charge of bias against the trial
court have been repeatedly made with absolutely no foundation whatsoever,
both at trial and on appeal.
courts, when presented with a similar groundless attack, have not
hesitated to reject claims of judicial bias when such claims prove utterly
without support. E.g., Undersea Engineering & Construction Co. v.
International Telephone & Telegraph Corp., 429 F.2d 543, 545 (9th Cir.
1970) (motion to disqualify trial court "frivolous, if not
groundless and vexatious"), overruled in part on other grounds, Avery
v. United States, 829 F.2d 817, 818-19 (9th Cir. 1987); Stephen v.
Antigua Brewery, Ltd., 88 F. Supp. 2d 422, 424 (D. Virgin Islands 2000)
(rejecting claims of judicial bias as "grave, unfounded
accusations"). Some courts award costs to the party forced to defend
the groundless charge on appeal. E.g., Porter v. Metrowest Automotive
Resources, Inc., 2000 Mass. App. Div. 129 (Dist. Ct. 2000)
(defendant's accusation that trial court biased against all used car sales
companies "devoid of merit," and plaintiff entitled to costs of
sanctions ultimately were not imposed in United States v. Brown, 72
F.3d 25 (5th Cir. 1995), the facts of that case are instructive. In Brown,
the defendant's attorney, Paul Kidd, challenged the District Court's
handling of his client's criminal trial.
Id., 27. Kidd filed a memorandum of law in which he made
general accusations of bias by the judge against his client and in favor
of the prosecution. Id. When pressed by the District Court for specifics,
Kidd provided fourteen excerpts from the trial transcript that
"largely [involved] instances in which the trial court sustained
objections by the government during defense counsel's
cross-examination." Id. The District Court found that Kidd had
violated rule 8.2 of the Rules of Professional Conduct, fined him $ 5000
and suspended him for one year from the practice of law.
United States Court of Appeals for the Fifth Circuit reversed the District
Court's imposition of sanctions, reasoning in part that Kidd's accusations
did not rise to the level of dishonesty and corruption necessary to
warrant sanctions. Id.,
29-30. As with the attorney in Brown, [*65]
the plaintiff's counsel in this case can point to no more than
adverse rulings to support her claim of bias. "Adverse rulings do not
themselves constitute evidence of bias." State v. Fullwood, supra,
194 Conn. 582; Hartford Federal Savings & Loan Assn. v. Tucker,
supra, 192 Conn. 8; see Bieluch v. Bieluch, supra, 199 Conn. 553;
State v. Fuller, supra, 56 Conn. App. 627 n.34. We note that Brown
and other cited cases are relevant for the seriousness with which courts
take these charges and provide a cautionary warning for any member the bar
who may in the future consider making such an unsupported line of attack.
plaintiff's efforts to smear the court with charges of gender bias have
absolutely no foundation whatsoever. The plaintiff has failed to provide a
single shred of evidence showing gender bias or even an inference or the
appearance of gender bias by the court. We suggest that the plaintiff's
counsel review rule 3.1 of the Rules Professional Conduct, which states
that a lawyer shall not bring a frivolous claim, and rule 8.2 of the Rules
of Professional Conduct, which states that "[a]
[*66] lawyer shall not
make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or
integrity of a judge ...." "The lawyer codes express a special
obligation not to criticize judges through false accusations ...." C.
Wolfram, Modern Legal Ethics (1986) §
11.3.2, p. 601. Raising the specter of judicial bias should not be
used, as it is here, as a last resort argument to resurrect a losing
appeal or to manufacture cause for remand.
sum, a charge of gender bias against a trial judge in the execution of his
or her duties is a most grave accusation. It strikes at the heart of the
judiciary as a neutral and fair arbiter of disputes for our citizenry.
Such an attack travels far beyond merely advocating that a trial judge
ruled incorrectly as a matter of law or as to a finding of fact, as is the
procedure in appellate practice. A judge's personal integrity and ability
to serve are thrown into question, placing a stain on the court that
cannot easily be erased.
should be free to challenge, in appropriate legal proceedings, a court's
perceived partiality without the court misconstruing such a challenge
[*67] as an assault on the
integrity of the court. Such challenges should, however, be made only when
substantiated by the trial record." United States v. Brown, supra,
72 F.3d 29. In this case, the plaintiff's challenge is completely
unsubstantiated by the trial record.
judgment is affirmed.
this opinion the other judges concurred.