Summary
noting that in order to state a fraud claim, a plaintiff must allege reliance
Summary of this case from Brown v. State Farm Fire & Cas. Co.Opinion
No. 18452.
2014-07-8
Catherine REVILLE v. John REVILLE.
Steven D. Ecker, Hartford, with whom was M. Caitlin S. Anderson, for the appellant (plaintiff). Samuel V. Schoonmaker IV, Greenwich, with whom were Allen Gary Palmer and, on the brief, Wendy Dunne DiChristina and Anthony L. Cenatiempo, Westport, for the appellee (defendant).
Steven D. Ecker, Hartford, with whom was M. Caitlin S. Anderson, for the appellant (plaintiff).Samuel V. Schoonmaker IV, Greenwich, with whom were Allen Gary Palmer and, on the brief, Wendy Dunne DiChristina and Anthony L. Cenatiempo, Westport, for the appellee (defendant).
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and McDONALD, Js.
ROGERS, C.J.
The listing of justices reflects their seniority status on this court as of the date of oral argument.
This case concerns a spouse's duty to disclose an accrued but unvested pension during dissolution proceedings. The plaintiff, Catherine Reville, appeals from the judgment of the trial court denying her motion to open a 2001 judgment dissolving her marriage to the defendant, John Reville, on the basis of fraud. The plaintiff alleged that the defendant committed fraud during predissolution settlement negotiations by failing to disclose an accrued but unvested pension benefit, either on his financial affidavits or otherwise. After finding, inter alia, that the defendant had disclosed the existence of the pension to the plaintiff orally, both during the parties' marriage and during settlement negotiations, the trial court denied the plaintiff's motion to open. The plaintiff claims on appeal that the trial court improperly: (1) held that the pension, at the time the parties' marriage was dissolved, definitively was not “property” subject to equitable distribution pursuant to General Statutes (Rev. to 2001) § 46b–81; (2) refused to consider evidence of the pension's value, which undercut the court's findings regarding disclosure; and (3) required the plaintiff to bear the burden of proving fraud under the circumstances. We agree with the plaintiff's first two claims and, accordingly, reverse the judgment of the trial court.
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–1.
General Statutes (Rev. to 2001) § 46b–81 provides in relevant part: “(a) At the time of entering a decree ... dissolving a marriage ... the Superior Court may assign to either the husband or wife all or any part of the estate of the other....
“(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party ... shall consider the length of the marriage, the causes for the ... dissolution of the marriage ... the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
The following facts, which either are undisputed or were found by the trial court, and procedural history are relevant to the appeal. On May 25, 2001, the trial court, Hon. Dennis F. Harrigan, judge trial referee, rendered judgment dissolving the parties' fourteen year marriage, and it incorporated into the judgment orders of alimony, child support and an equitable distribution of the marital property consistent with the parties' written separation agreement. Pursuant to that agreement, the parties had endeavored to split their assets equally. The plaintiff filed an amended postjudgment motion to open and set aside the dissolution judgment, dated September 15, 2005, claiming that the court should revisit the issue of property distribution because the defendant, a partner with PricewaterhouseCoopers LLP, had failed to disclose on all four of his financial affidavits the existence of an accrued but unvested pension (pension). The plaintiff claimed further that she had relied on those affidavits and the representations contained therein as to the extent and scope of the defendant's assets, and that the pension that he had failed to disclose had a substantial value, likely in excess of $2 million. According to the plaintiff, had she known of the existence of the pension, she would not have entered into the separation agreement as it was written because it made no provision for her to receive an interest in the pension or some other compensation for waiving her right to such an interest. The plaintiff contended that interests in unvested pensions were, around the time of the parties' divorce, “property or assets” required to be disclosed on financial affidavits in dissolution actions and subject to distribution pursuant to § 46b–81. By her motion to open, the plaintiff also sought to enforce a penalty provision in the parties' separation agreement, which provided for a forfeiture of intentionally concealed property interests.
Subsequently, the plaintiff amended her September 15, 2005 motion to allege that the defendant had failed to disclose the existence of a second retirement plan. The defendant ultimately conceded that he inadvertently had failed to disclose this second plan, which had comparatively little value, and its disposition is not a subject of this appeal.
On October 11, 2005, the plaintiff filed another motion to open and modify the dissolution judgment as it pertained to child support. On February 19, 2008, she filed a motion for contempt relating to the defendant's alleged violation of a term of the property distribution portion of the parties' separation agreement. The trial court's disposition of these two motions also is not at issue in this appeal.
The trial court, Shay, J., decided, sua sponte, to bifurcate the proceedings on the plaintiff's motion to open the judgment into two phases. In the first phase, the court endeavored to determine whether, pursuant to § 46b–81, the pension was marital property at the time of the dissolution. In the event that the pension was determined to be property, a second phase would be held to determine whether the defendant had failed to disclose it, whether any such nondisclosure was fraudulent and whether nondisclosure would have altered the underlying judgment.
Hereinafter, references to the trial court are to Shay, J., unless otherwise noted.
It is not clear why the trial court employed this approach to trying a fraud claim. As explained more fully hereinafter, at the conclusion of the first phase, the court concluded that the pension was not distributable property, but that the defendant should have disclosed it anyway. The court then held the second phase of the trial which, it previously had informed the parties, would be unnecessary in the event the pension was not found to be property.
During the first phase of the proceedings on the plaintiff's motion to open, the trial court heard testimony about the pension from the defendant and William Miller, an actuarial and pension expert retained by the plaintiff. The deposition of Roger Hindman, a partner in PricewaterhouseCoopers LLP, who oversaw benefit programs nationally for staff and partners of that firm, was read into the record. The evidence presented established the existence and nature of the pension generally, and the defendant's specific interest therein.
At the time of the dissolution judgment, the defendant was forty-five years old and had been employed by PricewaterhouseCoopers LLP, or one if its predecessors, for approximately twenty years, and he had been a partner in the firm for nearly one decade. When the defendant became a partner, he was informed of the benefits associated with that position, which included the pension at issue among several other retirement savings vehicles.
Price Waterhouse and Coopers & Lybrand, LLP, merged in 1998 to form PricewaterhouseCoopers LLP. The defendant worked for Price Waterhouse for all but one year between 1980 and the time of the merger, and he was named a partner of that firm on July 1, 1991. Postmerger, he remained a partner in the newly formed entity, PricewaterhouseCoopers LLP.
The trial court found that the pension is unqualified, in the sense that it is not covered by the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. It is not funded on an ongoing basis by contributions to a trust fund, but rather, is paid out of the firm's current profits at the time it is due to eligible retirees. Moreover, although benefits accrue during an individual's term of employment, they do not immediately vest. Normal retirement age at PricewaterhouseCoopers LLP, is age sixty but, under the terms of the pension, a partner is eligible for a reduced benefit at age fifty with twenty years of service or a full benefit at age fifty-five. At the time of the dissolution judgment, the defendant's pension was unvested, but it became partially vested five years later in 2006, and fully vested by 2010. The terms of the pension are subject to change and were modified somewhat during the 1998 merger; see footnote 6 of this opinion; but pursuant to the post-merger partnership agreement, preexisting partners' benefits, including the defendant's pension, were protected. The pension benefit is calculated using a formula that takes into account a partner's years of service and a figure representing 30 percent of the average pay in his or her five highest earning years, but it is subject to a cap pursuant to which total pension payments to retired partners cannot exceed 15 percent of the firm's current profits. In addition, the pension is subject to forfeiture if a retired partner violates certain conditions such as a noncompete requirement. The defendant testified that he was unaware of any retired partner not receiving the pension benefit, provided he or she complied with those conditions.
Although all partners were aware of the pension and its basic terms, there was no written document memorializing those terms until April, 2003. In April, 2000, however, a personalized, electronic projection report was made available to each partner, including the defendant, through his or her work computer. That report estimated the present and future values of the available benefit plans, including the pension, by employing certain assumptions as to the rate of return, life expectancy and earnings growth. If a partner chose, he or she could enter alternative assumptions and change the projections. Employing the default assumptions, which included a retirement age of sixty, the projection report, as of December 31, 1999, estimated the present value of the defendant's projected retirement income stream to be $3,839,117.
After the first phase of the proceedings, the trial court made findings that included the foregoing facts and concluded that, in May, 2001, at the time of the decree dissolving the parties' marriage, the defendant's pension was not property subject to distribution pursuant to § 46b–81. In so concluding, the court reasoned that this court's decision in Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001), which held that a party's unvested pension benefits were distributable marital property pursuant to § 46b–81, was inapplicable to the analysis here because that decision postdated the dissolution judgment in this case by several months. Moreover, according to the trial court, the pension unquestionably was not property under the law in effect prior to Bender. The trial court held, nevertheless, that the defendant should have disclosed the pension on his financial affidavits because nondisclosure prevented Judge Harrigan from performing his duty, mandated by General Statutes § 46b–66, to find the parties' settlement agreement fair and equitable under the circumstances, and/or from giving consideration to the pension when fashioning his award of alimony. See General Statutes (Rev. to 2001) § 46b–82.
.General Statutes § 46b–66 (a) provides in relevant part: “In any case ... where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require....”
While changes have been made to § 46b–66 since the time of the proceedings here; see, e.g., Public Acts 2001, No. 01–135, § 1; Public Acts 2005, No. 05–258, § 1; subsection (a) has remained unchanged. For purposes of convenience, we refer to the current revision of the statute.
General Statutes (Rev. to 2001) § 46b–82 provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b–81.... In determining whether alimony shall be awarded, and the duration and amount of the award, the court ... shall consider the length of the marriage, the causes for the ... dissolution of the marriage ... the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”
The trial court then proceeded to the second phase of the proceedings on the motion to open the judgment. During that phase, the trial court ruled that, in light of its earlier determination that the pension was not property, any evidence as to its value was not relevant or material. Accordingly, the trial court refused to admit such evidence when it was offered by the plaintiff.
During the second phase, there was substantial testimony from both parties as well as individuals who had represented or assisted them during the dissolution proceedings. The plaintiff testified that she was unaware of the pension during the parties' marriage, and further, that it was not disclosed to her during the extensive settlement negotiations attendant to the dissolution proceedings. The plaintiff's counsel during the dissolution proceedings, Anthony Piazza, confirmed the plaintiff's account of nondisclosure. The plaintiff's expert witness, Mark Harrison, an attorney and a certified public accountant, was familiar with the pension, but could not recall whether he had heard about it during the parties' case or when he was engaged in a different, later dissolution action involving another PricewaterhouseCoopers LLP partner.
The defendant testified that he and the plaintiff had discussed the pension during their marriage, and that he and his counsel disclosed the pension to the plaintiff and her representatives several times during settlement negotiations. According to the defendant, prior to the dissolution judgment, he had not accessed the April, 2000 electronic projection report made available to him at work that predicted the value of the pension based on certain assumptions. The defendant testified further that he was aware of the pension, but made an affirmative decision not to list it on his financial affidavit after discussing the matter with his counsel, because he did not believe it was an asset. The defendant's counsel at the dissolution proceedings, Christopher Burdett, confirmed the defendant's account in regard to disclosure of the pension during negotiations and the decision to omit it from the affidavit. Anthony Artabane, a colleague of the defendant's who was present at the settlement negotiations, also testified that the pension had been discussed with the plaintiff.
Apparently, Artabane intended to testify in the dissolution proceedings as a character witness for the defendant, in the event such testimony was necessary.
Although the settlement negotiations preceding the dissolution of the parties' marriage had lasted sixteen months and produced more than twenty drafts of their settlement agreement, the defendant did not produce any written or documentary evidence demonstrating disclosure of the pension to the plaintiff. Additionally, Burdett did not have any notes or records indicating that the pension had been discussed orally with the plaintiff or her representatives.
After considering the conflicting testimony, the trial court found that the defendant's version of events was more credible than the plaintiff's version. The court found it implausible that the pension had not been discussed during the parties' marriage, and concluded that the plaintiff “knew about the [pension] at the time of the dissolution of [the] marriage in 2001, and that she now wishes to change the bargain she reached with the advice of counsel and her expert.” According to the court, although the defendant did not disclose the pension on his financial affidavits, he did so during settlement negotiations, and the plaintiff and her counsel knew about it. The court held, therefore, that the plaintiff had not proven her claim of fraud.
The trial court reiterated its view that, although the pension did not qualify as distributable property, the defendant still should have disclosed it on his affidavit to enable Judge Harrigan, the dissolution court, to determine whether the settlement was fair and equitable. It concluded, however, that the defendant's nondisclosure to the court “was not fraudulent, and in any event, would not likely have changed the outcome of the court's finding of fairness or produced a different result.” Consequently, the trial court denied the plaintiff's amended motion to open the judgment. This appeal followed.
The plaintiff filed a motion to reargue, which the court denied without substantive discussion.
The plaintiff claims that the trial court improperly concluded that, in May, 2001, the defendant's pension was not property within the meaning of § 46b–81 that he was required to disclose on his financial affidavit. She contends further that the court improperly excluded, or failed to consider, evidence of the pension's value during the second phase of the proceedings on the motion on the basis that such evidence was irrelevant because the pension was not property, and that these improper rulings tainted the court's findings as to disclosure. Finally, the plaintiff claims that the trial court should not have placed the burden of proving fraud on her under the particular circumstances of the case, namely, when the defendant has failed to disclose a substantial asset on his financial affidavits during a dissolution proceeding.
The defendant contends in response that the trial court correctly concluded that the pension was not distributable property. He argues additionally that the court properly denied the plaintiff's motion to open the judgment because the plaintiff failed to prove fraud. According to the defendant, the court's finding that the pension was disclosed orally to the plaintiff is supported by the testimonial evidence and was fatal to the plaintiff's motion. The defendant claims further that, although the pension's value was irrelevant, there nevertheless was evidence in this regard before the court. Finally, the defendant contends, the court's allocation of the burden of proof was not in error.
We begin with the general standard of review and an overview of the legal framework that governed the trial court proceedings. “Our review of a court's denial of a motion to open [based on fraud] is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment.... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.... The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005).
Pursuant to General Statutes § 52–212a, “a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed....” An exception to the four month limitation applies, however, if a party can show, inter alia, that the judgment was obtained by fraud. See Weiss v. Weiss, 297 Conn. 446, 455, 998 A.2d 766 (2010).
“Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed.... The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment.... A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud.” (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. at 685, 882 A.2d 53.
“Fraud by nondisclosure, which expands on the first three of [the] four elements [of fraud], involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak.... A lack of full and fair disclosure of such facts must be accompanied by an intent or expectation that the other party will make or will continue in a mistake, in order to induce that other party to act to her detriment.... In a marital dissolution case, the requirement of a duty to speak is imposed by Practice Book § [25–30], requiring the exchange and filing of financial affidavits ... and by the nature of the marital relationship.” (Citations omitted.) Gelinas v. Gelinas, 10 Conn.App. 167, 173, 522 A.2d 295, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987), overruled on other grounds by Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991).
“There are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a [reasonable probability] that the result of the new trial will be different.” (Footnote added; internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. at 685, 882 A.2d 53.
We recently altered the standard for a party to obtain a new trial on the basis of fraud to require that party to show only a “reasonable probability” that the result of a new trial will be different, rather than a “substantial likelihood,” as our previous case law had held. See Duart v. Dept. of Correction, 303 Conn. 479, 491, 34 A.3d 343 (2012). A reasonable probability means “a probability sufficient to undermine confidence in the outcome,” or that the nondisclosed information “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the [judgment].” (Internal quotation marks omitted.) Id., at 492, 34 A.3d 343.
“To determine whether there [is] proof of fraud, [a court should] consider the evidence through the lens of our well settled policy regarding full and frank disclosure in marital dissolution actions. Our [rules of practice have] long required that at the time a dissolution of marriage, legal separation or annulment action is claimed for a hearing, the moving party shall file a sworn statement ... of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income.... The opposing party is required to file a similar affidavit at least three days before the date of the hearing....
“Our cases have uniformly emphasized the need for full and frank disclosure in that affidavit. A court is entitled to rely upon the truth and accuracy of sworn statements required by ... the [rules of practice], and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding.... These sworn statements have great significance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence....
“Moreover, in Monroe v. Monroe, [177 Conn. 173, 182, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979) ], we referred to the requirement of full and frank disclosure between attorney and marital client. [L]awyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client's rights and interests. Id., at 183, 413 A.2d 819. In Baker v. Baker, 187 Conn. 315, 322, 445 A.2d 912 (1982), we imposed this requirement of honest disclosure between the litigating parties and the court. It is a logical extension of those precedents to require such full and frank disclosure as well between the marital litigants themselves....
“We have recognized, furthermore, in the context of an action based on fraud, that the special relationship between fiduciary and beneficiary compels full disclosure by the fiduciary.... Although marital parties are not necessarily in the relationship of fiduciary to beneficiary, we believe that no less disclosure is required of such parties when they come to court seeking to terminate their marriage.
“Finally, the principle of full and frank disclosure ... is essential to our strong policy that the private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.... That goal requires, in turn, that reasonable settlements have been knowingly agreed upon.... Our support of that goal will be effective only if we instill confidence in marital litigants that we require, as a concomitant of the settlement process, such full and frank disclosure from both sides, for then they will be more willing to [forgo] their combat and to settle their dispute privately, secure in the knowledge that they have all the essential information.... This principle will, in turn, decrease the need for extensive discovery, and will thereby help to preserve a greater measure of the often sorely tried marital assets for the support of all of the family members.” (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. at 686–87, 882 A.2d 53.
We now turn to the plaintiff's claims. Additional facts and procedural history will be provided when necessary.
I
The plaintiff claims first that the trial court improperly held that the defendant's pension, at the time of the May, 2001 dissolution judgment, was not property subject to distribution under § 46b–81. She contends that the trial court should have held to the contrary by applying this court's decision in Bender v. Bender, supra, 258 Conn. at 736, 785 A.2d 197, which established that unvested pension benefits were distributable property, but improperly chose instead to provide an unwarranted critique of the majority opinion in that case and to follow the dissenting opinion. According to the plaintiff, the trial court should have applied this court's holding in Bender retroactively because in May, 2001, it was a foreseeable decision that affirmed an already existing, consistent opinion of the Appellate Court and predictably built upon prior case law. In any event, the plaintiff claims, the real question before the trial court was not whether Bender ought to apply retroactively, but whether the defendant violated his fundamental obligation of full and frank disclosure, and the court's inordinate focus on Bender “established a deeply flawed framework for the ultimate resolution of this case.” She contends that, because the trial court analyzed her fraud claim using a flawed legal framework, its factual findings also are faulty.
The defendant contends in response that the trial court correctly held that an unvested pension was not distributable property prior to this court's decision in Bender. According to the defendant, the Appellate Court's decision in that case, Bender v. Bender, 60 Conn.App. 252, 758 A.2d 890 (2000), aff'd, 258 Conn. 733, 785 A.2d 197 (2001), which predated the dissolution of the parties' marriage, did not address the issue, and this court's subsequent decision represented a substantial and unexpected change in our equitable distribution jurisprudence that should not apply retroactively to May, 2001.
Although we disagree that our decision in Bender effected a substantial and surprising change to the law of marital property distribution, we nevertheless agree with the defendant that the decision does not apply retroactively to cases that were not pending at the time the decision was rendered. We disagree, however, with the trial court's determination that the law preexisting Bender established definitively that the defendant's pension was not distributable marital property in May, 2001, and that Bender represented a sharp departure from, rather than a progressive outgrowth of, our preexisting jurisprudence. In short, at the time of the parties' divorce, the proper treatment of unvested pensions in dissolution actions was an unsettled issue in Connecticut. More fundamentally, however, we disagree with the trial court's view that the question of whether the defendant's pension definitively was established to be distributable property in May, 2001, was a necessary preliminary issue to be decided in this action alleging fraudulent nondisclosure. Specifically, as the plaintiff contends, and as the trial court belatedly acknowledged, the defendant was legally obligated to disclose the existence and characteristics of the pension to the plaintiff and the dissolution court regardless of whether it clearly was distributable property. Moreover, the plaintiff's ability to prove that she had been defrauded was not dependent on her establishing that, had she known about the pension in May, 2001, she necessarily would have been awarded some portion of it. At the same time, in light of the state of the law at the time, it is entirely possible that the plaintiff would have been awarded a share of the pension or other property in lieu of a share. As explained more fully hereinafter, we agree with the plaintiff that the trial court's inordinate focus on Bender, and the nonissue of whether the pension definitively was or was not marital property in May, 2001, distorted the remainder of the trial and led the court to commit reversible evidentiary error.
We first note the applicable standard of review. As a general matter, the question of whether a particular retirement benefit constitutes distributable property pursuant to § 46b–81 is a question of statutory interpretation. Accordingly, our review of the trial court's decision is plenary. See Mickey v. Mickey, 292 Conn. 597, 613, 974 A.2d 641 (2009); Bender v. Bender, supra, 258 Conn. at 741, 785 A.2d 197; Krafick v. Krafick, 234 Conn. 783, 793–94, 663 A.2d 365 (1995).
The following additional procedural history is relevant. On December 11, 2007, during prehearing proceedings, the trial court, sua sponte, directed the parties to prepare for a bifurcated hearing on the plaintiff's claim of fraud. The court explained that “first and foremost ... we have to determine whether or not the [defendant's pension] is in fact a marital asset. Second, we have to make a determination if it is a marital asset, was it in fact disclosed. If it was not disclosed then we have to determine whether or not that nondisclosure was fraudulent.... [T]hat's my ... analysis of this.”
The trial court then mentioned this court's decision in Bender, noted that it was issued months after the dissolution judgment, and opined that it represented a change in the law. The trial court stated, therefore, that with the parties' input, it would have to decide whether the pension was distributable property by applying Bender, or “apply[ing] pre- Bender law because this is a 2001 dissolution....” According to the trial court, “the fundamental question is was this particular asset a marital asset in May of 2001 ... because if it's not marital property ... you just don't go any further. There's no fraud. If it's not marital property and [if] it wasn't disclosed, it doesn't matter.”
This court's decision in Bender v. Bender, supra, 258 Conn. at 733, 785 A.2d 197, was released on December 18, 2001, approximately seven months after the judgment of dissolution was rendered in the present case.
In a subsequent memorandum of decision, the trial court explained why “it was appropriate to divide the hearing into two distinct phases.” According to the court, “a determination as to whether or not the [pension] was marital property at the time of the decree dissolving the marriage was a distinct, potentially definitive issue.... Accordingly, phase I would deal solely with the issue of whether or not the [pension] in question was marital property at the time of the decree. In the event that the court were to conclude that, based upon the evidence, the [pension] was not marital property, the inquiry as to that issue would for all intents and purposes end. On the other hand, if there was an affirmative finding, the inquiry would move to phase II. In that event, the court would be called upon to decide whether or not the [defendant] failed to disclose the property in question ... whether or not the nondisclosure was fraudulent, and if so, would that fact likely have altered the underlying judgment.” (Emphasis in original.)
In response to the court's directive, the plaintiff's counsel noted that the Appellate Court's decision in Bender was released in the year prior to the dissolution judgment, and that decision similarly indicated that unvested pensions were distributable property. Moreover, in counsel's view, even prior to Bender, there was an obligation to disclose unvested pension benefits during a dissolution action, such that a failure to disclose them would amount to a fraudulent misrepresentation. The defendant's counsel, for his part, argued that the asset in question was not truly a pension and, in any event, it had been disclosed orally.
The Appellate Court's decision in Bender v. Bender, supra, 60 Conn.App. at 252, 758 A.2d 890, was released on October 3, 2000, approximately eight months prior to the dissolution judgment in the present case.
The trial court then reiterated its view that the “seminal question” in this case was whether the defendant's pension was “marital property in May of 2001.” The court thus directed the parties to begin the hearing on the plaintiff's motion to open by limiting the evidence to that particular question, and it explained again that it would address the issue of disclosure only if the question were answered in the affirmative. Thereafter, a four day hearing was held. Consistent with the trial court's directive, the hearing was devoted to establishing the features of the defendant's pension, the contingencies to which it was subject and the way it was treated during, and affected by, the PricewaterhouseCoopers LLP merger. See footnote 6 of this opinion.
The plaintiff, in her posthearing brief to the court, claimed, inter alia, that the Appellate Court's decision in Bender, which had affirmed the distribution of an unvested pension plan, predated the dissolution judgment in this action and, therefore, required the defendant to disclose his pension on his financial affidavit. The plaintiff contended further that earlier jurisprudence also established such an obligation. The defendant treated this court's decision in Bender as applicable, but argued that his unvested pension was factually distinguishable from the one at issue in that case.
In its memorandum of decision addressing whether the defendant's pension was property, the trial court, after making extensive findings as to the particulars of the pension, provided a detailed history of Connecticut's equitable distribution jurisprudence. It then concluded that the Appellate Court's decision in Bender v. Bender, supra, 60 Conn.App. at 252, 758 A.2d 890, was not pertinent. According to the trial court, because the focus of the Appellate Court's decision was on whether the unvested pension at issue had been properly valued and distributed, and the parties to that case did not dispute that the pension was distributable property, the Appellate Court did not decide whether the pension was property under § 46b–81, but simply assumed that it was. Finally, the trial court concluded that this court's decision in Bender v. Bender, supra, 258 Conn. at 733, 785 A.2d 197, was not applicable to the analysis because the release of the decision postdated the dissolution judgment by several months. Moreover, the trial court reasoned, that decision amounted to a “sea change” in our equitable distribution jurisprudence that was misguided and inconsistent with earlier cases. In explaining its reasoning, the trial court provided a lengthy critique of the majority opinion in Bender, and it relied heavily upon a characterization of our prior equitable distribution jurisprudence that was articulated in a dissenting opinion. See Bender v. Bender, supra, 258 Conn. at 767–69, 785 A.2d 197 ( Zarella, J., dissenting). The trial court then applied the law as the dissenting opinion described it to exist prior to this court's decision in Bender and concluded that the defendant's pension, in May, 2001, was not “property” that would have been subject to distribution as part of the dissolution judgment.
A “sea change” is defined as “a striking change” or “any major transformation or alteration.” Random House Unabridged Dictionary (2d Ed. 1993).
The trial court described Justice Zarella's dissenting opinion in Bender as “well reasoned,” and stated that it “agree[d]” with the analysis therein. When subsequently discussing its opinion with the parties, the trial court explained that, although it had “great respect” for this court, it “also [had] great respect for some individual members of the court....” The trial court indicated that it accepted Justice Zarella's view of pre- Bender jurisprudence; see Bender v. Bender, supra, 258 Conn. at 767–69, 785 A.2d 197; and it concluded, therefore, that “what this case turned on was the calendar.”
In the final paragraph of its twenty-four page memorandum of decision, the trial court concluded further, in direct contradiction to its previous explanations of the reasons for a bifurcated hearing, that the pension, although not property, nevertheless needed to be disclosed. Specifically, the court now recognized, the dissolution court should have known about the pension when determining whether the parties' settlement was fair and when crafting its award of alimony. Accordingly, the trial court ordered that the hearing on the plaintiff's motion to open should continue. After the second part of the hearing concluded, the trial court held that no fraud had been proven.
Although several aspects of the trial court's reasoning are sound, we nevertheless disagree with both its overall approach to analyzing the issues in this case and its conclusion that the defendant's pension definitively was not distributable marital property in May, 2001. First, we agree with the plaintiff that the real issue in this case was whether the defendant was required to disclose, and did in fact disclose, the pension during the dissolution proceedings, and not whether the pension was definitively established to be distributable property in May, 2001. Second, regardless of whether the pension was established to be distributable property at that time, its existence was a highly relevant consideration both for the plaintiff in deciding whether to agree to the proposed settlement agreement, and for the dissolution court in deciding whether to approve that agreement. Accordingly, nondisclosure, if proven, could have caused the plaintiff to act to her detriment, and full disclosure could have led to a different result in the dissolution action. Third, because the proper treatment of unvested pension benefits in dissolution actions simply was an unsettled matter in May, 2001, the trial court improperly treated it as definitively established instead of acknowledgingthat, in light of the state of the law at that time and the developments that were soon to follow, the plaintiff might have been awarded a share of the pension or other property in lieu of a share. As we will explain hereinafter, the trial court's unconventional analysis and its improper conclusion as to the classification of the pension distorted the remainder of the hearing on the plaintiff's motion to open and led the court to commit reversible evidentiary error. Because of that error, the court's denial of the plaintiff's motion to open was an abuse of discretion.
To begin, as the trial court eventually realized after conducting a lengthy hearing on the details of the defendant's unvested pension, the defendant unquestionably was obligated to disclose that pension to the plaintiff and the dissolution court, regardless of whether this state's appellate jurisprudence definitively had confirmed that it was distributable property by May, 2001. Pursuant to the long-standing full and frank disclosure policies and principles we have articulated; see Weinstein v. Weinstein, supra, 275 Conn. at 686–87, 882 A.2d 53; Billington v. Billington, supra, 220 Conn. at 219–22, 595 A.2d 1377; any retirement or employment benefit potentially receivable by a party to a dissolution action should be disclosed on that party's financial affidavit along with all known details as to its value, vesting requirements and current status. In cases in which it is unclear or debatable whether the item at issue qualifies for distribution under § 46b–81, it is for the trial court to make that determination after a full and frank disclosure of the item, its relevant attributes and any contingencies to which it is subject. Conversely, it is patently improper for a party to interpret the statute and case law and decide for himself or herself whether the item qualifies for distribution, and then to insulate that decision from any judicial review by failing to disclose it. When the trial court decides whether an item is distributable property, if either party is dissatisfied, he or she has the option of appealing the matter to a higher tribunal. In this regard, we agree with the plaintiff that “[f]inancial affidavits in dissolution matters are not intended as a place for gamesmanship or even advocacy,” and that affidavits require “unadulterated honesty because, in the absence of full and frank disclosure, the entire system breaks down.”
Both parties' counsel from the dissolution action appear to have understood this requirement. Attorney Piazza testified that, in 2000, when he had clients with unvested assets, he always listed those assets on the clients' financial affidavits. Attorney Burdett testified that he counseled clients to include on their affidavits assets with doubtful status and that he had so advised the defendant, but also that the defendant was a proactive client with clear opinions who made the ultimate decision not to list the pension.
We take this opportunity to emphasize that full and frank disclosure of a pension should include not only the facts of its existence and vesting status (i.e., the total time of employment needed to vest and the time the employee spouse already has completed), but also any readily available information pertaining to the calculation of benefits and/or the present value of those benefits. Cf. Weinstein v. Weinstein, supra, 275 Conn. at 690 n. 12, 882 A.2d 53 (to comply with requirement of full and frank disclosure, defendant should have disclosed both fact of ownership of asset and accurate assessment of asset's worth). Moreover, disclosure of all relevant information that is available should be clear and overt, and not merely discoverable or inferable through careful analysis of a mass of documentation. Id., at 690 n. 12, 693 n. 14, 882 A.2d 53. In this regard, we reject the defendant's contention that vague, general references in the PricewaterhouseCoopers LLP partnership agreement to retired partners' receipt of “payments” or “participat[ion] in [n]et [p]rofits,” or the single word “pension,” in a schedule appended to some of the many drafts of the parties' separation agreement, constitute full and frank disclosure of the pension and all of its relevant attributes. Notably, the trial court's memorandum of decision does not cite these documents as evidence of disclosure.
Next, even if a benefit such as an unvested pension is too speculative to be distributable as marital property pursuant to § 46b–81, its existence still may play into the decision-making process of the benefit holder's spouse when he or she is determining whether to accept or decline a proposed settlement offer. For instance, the plaintiff in this case, if aware that the defendant was approaching the vesting period for a pension offered by his longtime employer that would provide, throughout his entire retirement, an annual payment based on 30 percent of his income in his highest earning years, might reasonably have demanded that she receive a significantly greater percentage of the couple's remaining assets than she would have had she not known about the pension. Although there were contingencies that, had they come to pass, might have disqualified the defendant from receiving the pension, the plaintiff, having familiarity with her spouse, his work history and the characteristics of his employer, might have considered those contingencies to be negligible and bargained accordingly. In short, the plaintiff could have relied on nondisclosure of the pension to her detriment, regardless of whether it ultimately was classified as distributable marital property.
See footnote 6 of this opinion.
Relatedly, as the trial court correctly recognized after conducting a mini-trial on whether the defendant's pension was marital property in May, 2001, even when an item is determined to be nondistributable, its existence nevertheless is a relevant consideration for a court adjudicating a dissolution action when it assesses the fairness of a settlement, distributes other property or fashions other financial orders. See, e.g., General Statutes § 46b–66 (a) (when reviewing settlement agreements for fairness and equity, court must consider, inter alia, “the financial resources ... of the spouses”); General Statutes § 46b–81 (c) (when distributing property, court must consider, inter alia, “the opportunity of each [party] for future acquisition of capital assets and income”); General Statutes § 46b–82 (a) (when fixing alimony, court must consider, inter alia, “sources of income”); see also Thompson v. Thompson, 183 Conn. 96, 100, 438 A.2d 839 (1981) (trial court properly considered plaintiff's unaccrued pension benefits as source of future income when fixing property assignment and alimony orders). Consequently, we reiterate, all retirement and employment benefits potentially receivable by a party to a dissolution action must be fully and frankly disclosed on that party's financial affidavits, regardless of whether they are definitively established to be distributable marital property.
The dissenting justice questions whether Thompson supports the proposition that unvested pension benefits must be disclosed because his examination of the record and briefs in that case reveals that it actually involved the unaccrued portion of a vested pension, rather than an unvested pension. He contends that subsequent decisions of this court describing Thompson differently have misinterpreted its holding. Regardless of whether this is the case, Thompson still stands for the proposition that benefits that are not distributable property, for whatever reason, may be taken into account by a court fashioning financial orders in a dissolution proceeding. Such benefits, therefore, need to be disclosed. Accordingly, Thompson is not, as the dissent states' “inapposite.”
Finally, although we further agree with the trial court that this court's decision in Bender v. Bender, supra, 258 Conn. at 733, 785 A.2d 197, would not apply retroactively to May, 2001, to a case that, at that time, already had reached final judgment, and that the earlier Appellate Court decision in that case did not directly address the issue of how unvested pensions should be classified, we disagree that a determination of whether the defendant's pension definitively was established to be distributable property at that discrete point in time was the pertinent inquiry, or was in any way dispositive of the issues in this case. Rather, the trial court simply should have acknowledged that, in early to mid–2001, around the time the parties were engaged in settlement negotiations, the proper treatment of unvested pension benefits in dissolution actions was an open question in Connecticut. That question was to be settled soon, however, and there were significant indications that it would be decided as it was. Instead of drawing an artificial line on the calendar after which unvested pensions suddenly became distributable property, the trial court should have considered whether, in light of that legal climate, there was a substantial likelihood that, had both the plaintiff and the dissolution court knew of the pension, the plaintiff would have refused to accept the settlement agreement and the outcome of the dissolution proceedings would have differed.
Although the general rule is that judicial decisions may apply retroactively to govern disputes whose operative facts predate those decisions; see Ostrowski v. Avery, 243 Conn. 355, 377 n. 18, 703 A.2d 117 (1997); retroactive application nevertheless is limited to cases that are pending and, therefore, have not resulted in final judgments. Marone v. Waterbury, 244 Conn. 1, 11 n. 10, 707 A.2d 725 (1998). In May, 2001, the parties' dissolution action had gone to final judgment.
We agree, therefore, with the trial court that Bender did not apply retroactively to the parties' dissolution action. We disagree, however, with the trial court's reasoning. In concluding that Bender did not apply retroactively, the trial court improperly applied the law applicable to statutory amendments rather than judicial decisions.
We disagree with the defendant's suggestion that, prior to 2001, the Appellate Court had held that employment benefits were not property due to their unvested status. In Wendt v. Wendt, 59 Conn.App. 656, 674–76, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000), the Appellate Court upheld the trial court's ruling that certain pension benefits were not distributable marital property because they represented, in their entirety, compensation for postdissolution employment services, and not because they were unvested per se. See also Hopfer v. Hopfer, 59 Conn.App. 452, 458, 757 A.2d 673 (2000) (same reasoning, as to unvested stock options).
The parties' dissolution action was commenced in 2000, and disposed of in May, 2001. As early as 1981, this court held that a dissolution court properly could consider a party's unvested pension benefits when crafting property and alimony orders. Thompson v. Thompson, supra, 183 Conn. at 100, 438 A.2d 839. In 1995, in Krafick v. Krafick, supra, 234 Conn. at 798–99 n. 23, 663 A.2d 365, after concluding that vested pension benefits were distributable property, this court noted that, although the issue of unvested pension benefits was outside the scope of the decision, “the same reasoning has been applied to find that such benefits also ... constitute property,” and we cited several decisions from other jurisdictions to that effect. In that case and thereafter, in the years immediately preceding the institution of the parties' dissolution action, this court began to cite a very broad definition of property in marital cases, and we expandedour interpretation of the scope of § 46b–81 to include such things as personal injury awards; Lopiano v. Lopiano, 247 Conn. 356, 367, 752 A.2d 1000 (1998); and nonexercisable stock options. Bornemann v. Bornemann, 245 Conn. 508, 518, 752 A.2d 978 (1998). In a 2000 appeal to this court, a party raised the issue of whether unvested pension benefits were distributable property, but we did not resolve the issue then because of a confusing and inadequate record. See generally Rosato v. Rosato, 255 Conn. 412, 766 A.2d 429 (2001). We reiterated, however, that the issue remained an open one, and we retained jurisdiction over the appeal with an assurance that we would decide the issue expeditiously in the event the trial court, on remand, concluded that the benefits at issue were in fact unvested. Id., at 422 n. 16, 425 n. 19, 766 A.2d 429.
See Lopiano v. Lopiano, 247 Conn. 356, 365, 752 A.2d 1000 (1998) (The court defined “property as the term commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments....” [Internal quotation marks omitted.] ), quoting Black's Law Dictionary (6th Ed. 1990) p. 1216; see also Simmons v. Simmons, 244 Conn. 158, 165, 708 A.2d 949 (1998) (same); Krafick v. Krafick, supra, 234 Conn. at 794, 663 A.2d 365 (same).
But see Simmons v. Simmons, 244 Conn. 158, 164, 708 A.2d 949 (1998) (medical degree not property subject to equitable distribution).
To dispute our assertion that, around the time of the parties' divorce, our case law was trending toward a broader conception of what constituted distributable property, the dissent cites Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978), and Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987). At the time of the judgment in the parties' dissolution action, the decisions in Krause and Rubin were twenty-three and fourteen years old, respectively, and, as such, do not speak as strongly to the direction of our case law in 2001 as the cases we cite herein, which were decided in 1998.
The decision in Rosato v. Rosato, supra, 255 Conn. at 412, 766 A.2d 429, was released on March 6, 2001.
Also around that time, at least one trial court had ordered equitable distribution of a party's unvested pension benefits. See Bender v. Bender, Superior Court, judicial district of New Haven, Docket No. FA97–0258814–S, 1998 WL 744679 (October 8, 1998). In late 2000, the trial court's order was upheld by the Appellate Court. Bender v. Bender, supra, 60 Conn.App. at 252–53, 758 A.2d 890. The focus of the Appellate Court's decision was on the valuation and distribution of the pension rather than its classification as marital property, because the parties to that case did not dispute that the pension was distributable. Id., at 254, 758 A.2d 890. The Appellate Court's overt acceptance of this underlying premise without, for example, ordering supplemental briefing on the matter, suggested, however, that it did not view classification of the pension as property to be especially controversial.
When dividing resources in a dissolution action, “[t]here are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b–81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” Krafick v. Krafick, supra, 234 Conn. at 792–93, 663 A.2d 365.
In its opinion, the Appellate Court expressly stated that classification of the pension was not at issue because “[n]either party challenges the authority of the court to award nonvested pension rights.” Bender v. Bender, supra, 60 Conn.App. at 254, 758 A.2d 890.
Arguably, the Appellate Court's acceptance of the premise that the unvested pension at issue was property pursuant to § 46b–81, a determination that was an essential prerequisite to the valuation and distribution of the pension; see footnote 26 of this opinion; was a controlling precedent to be followed by the dissolution court. Bender was not a case in which an appellate tribunal assumed, without deciding, that a subsidiary legal prerequisite was established because the claim whose success depended on that prerequisite would fail in any event. See, e.g., Schumann v. Dianon Systems, Inc., 304 Conn. 585, 621, 43 A.3d 111 (2012) (assuming, without deciding, that balancing test for determining whether public employee speech was constitutionally protected was applicable before concluding that plaintiff could not prevail under that test). In such instances, the assumed point is not essential to the court's ultimate holding and, therefore, it creates no binding precedent. We recognize, however, that the precedential effect of a case is substantially diminished when the legal point involved was decided with little or no argument. See 20 Am.Jur.2d 519, Courts § 137 (2005).
Finally, around the time the parties' marriage was dissolved, there existed a growing national consensus in favor of treating unvested pension benefits as distributable property in dissolution actions. See Bender v. Bender, supra, 258 Conn. at 751 n. 8, 785 A.2d 197 (citing decisions from thirty-one jurisdictions, as well as statutes of four states defining distributable property to include unvested pension benefits). Representatives of the national and state family law bars, when asked in early 2001 to weigh in on the matter, agreed that this was the proper approach. See id., at 741 n. 4, 785 A.2d 197 (noting that American Academy of Matrimonial Lawyers and Connecticut Bar Association Family Law Section, whom this court invited to appear as amici curiae, both contended that unvested pension was distributable property).
Consequently, in the present matter, had the defendant's pension been listed on his financial affidavit, Judge Harrigan might have followed this growing trend and awarded a portion of the pension to the plaintiff. Moreover, had the disposition of the case been delayed for several months because of the plaintiff's unwillingness to settle without receiving a share of the defendant's pension or other property in lieu of a share, that judge would have had the benefit of this court's decision in Bender v. Bender, supra, 258 Conn. at 733, 785 A.2d 197, and would have been required to treat the pension as distributable property. Alternatively, had the case been tried and gone to final judgment with the plaintiff having sought, but not received, an interest in the pension, she might have pursued an appeal to challenge that disposition, in which case, in light of our impending decision in Bender, she would have prevailed. Instead of holding a straightforward hearing on the elements of fraud, acknowledging that the law regarding distribution of unvested pensions was unsettled, considering the foregoing possibilities and determining whether the plaintiff was misled by nondisclosure to her ultimate detriment, the trial court embarked on a lengthy excursion to determine the undeterminable, namely, whether the defendant's pension definitively was or was not distributable property in May, 2001. This was improper.
The trial court's decision to paint this court's decision in Bender v. Bender, supra, 258 Conn. at 733, 785 A.2d 197, as marking a bright line on the calendar, prior to which an unvested pension definitively was not property and after which it was, stemmed from the trial court's characterization of Bender as a surprising reinterpretation of § 46b–81 that upended earlier jurisprudence. As we have explained herein, we disagree with that characterization. Additionally, in Bender itself, we stated that our decision to treat unvested pension benefits as property rested on a theme running throughout our prior case law; id., at 748, 751, 785 A.2d 197; and made clear that we had not “overruled our prior cases defining property for purposes of our equitable distribution statute ... [but rather, had] built upon their foundation.” Id., at 753, 785 A.2d 197. Although Bender did break new ground and adopt a more nuanced approach toward classification of assets as marital property; see Mickey v. Mickey, supra, 292 Conn. at 625–28, 974 A.2d 641; such incremental steps in jurisprudential development are a hallmark of the common law and, for the reasons we have explained, we do not consider this court's holding in Bender to have been a particularly surprising one.
Instead of accepting this court's view of its own § 46b–81 jurisprudence, as stated in Bender, the trial court enthusiastically embraced an alternative description of that jurisprudence that was set forth in the dissenting opinion in that case. See Bender v. Bender, supra, 258 Conn. at 764–79, 785 A.2d 197 ( Zarella, J., dissenting). The trial court also devoted several pages of its memorandum of decision to critiquing the majority opinion in Bender, posing rhetorical questions about the implications of the holding and making clear that it much preferred, and even “agree[d]” with, the reasoning of the dissenting opinion. In the trial court's view, when faced with a majority and dissenting opinion on a matter, “the best course for the court is to attempt to reconcile both positions, if possible, and then to apply that reasoning to the particular facts at ... hand.”
Our disapproval of this aspect of the trial court's decision cannot be overstated. It is axiomatic that a dissenting opinion, by its very nature, represents a minority of the court's disagreement with the law as established by the majority opinion and, therefore, is not an authoritative ruling to be applied by a lower court. See Arar v. Ashcroft, 585 F.3d 559, 581 n. 14 (2d Cir.2009) (“[d]issents by their nature express views that are not the law”), cert. denied, 560 U.S. 978, 130 S.Ct. 3409, 177 L.Ed.2d 349 (2010); Kennedy v. Walker, 135 Conn. 262, 274, 63 A.2d 589 (1948) (dissenting and concurring opinions “[do] not represent authoritative law”), aff'd, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715 (1949), superseded by statute on other grounds as stated in State v. Sanabria, 192 Conn. 671, 474 A.2d 760 (1984); State v. Hernaiz, 140 Conn.App. 848, 855, 60 A.3d 331 (refusing defendant's request to rely on dissenting opinions contrary to established law), cert. denied, 308 Conn. 928, 64 A.3d 121 (2013). Additionally, once this court has finally determined an issue, for a lower court to reanalyze and revisit that issue is an “improper and fruitless” endeavor. State v. Shipman, 142 Conn.App. 161, 166, 64 A.3d 338, cert. denied, 309 Conn. 918, 70 A.3d 41 (2013); see also Cannizzaro v. Marinyak, 139 Conn.App. 722, 734, 57 A.3d 830 (2012) (explaining that it is not lower court's province to reevaluate Supreme Court precedent), cert. granted on other grounds, 308 Conn. 902, 60 A.3d 286 (2013). The trial court's reliance on a dissenting opinion as a source of law was improper. Unfortunately, the trial court's gratuitous editorializing regarding the majority opinion in Bender v. Bender, supra, 258 Conn. at 733, 785 A.2d 197, strongly suggests a fundamental misconception of its role in a hierarchical system of justice.
The dissent contends that the trial court's preliminary focus on determining whether the defendant's pension, in May, 2001, was definitively established to be distributable property pursuant to § 46b–81, was demanded by the plaintiff's theory of her case, as evidenced by her motion to open which, in part, sought relief pursuant to the parties' settlement agreement. We do not agree. Although, for the reasons we explain in this opinion, the legal status of unvested pensions in and around 2001 was generally relevant, focusing the inquiry on the precise date of the parties' settlement agreement and the dissolution of their marriage was inappropriate and, further, was not mandated by the plaintiff's motion to open. In fact, the plaintiff argued in her motion that: (1) had she known about the pension, she never would have entered the settlement agreement; and (2) unvested pensions were “ ‘property or assets' ” subject to disclosure and distribution pursuant to § 46b–81 “at the time of the events outlined” in the motion, which events spanned from 2000 through 2004. Finally, it is not clear that the parties, when addressing nondisclosure of “a property interest, the effect thereof or an important characteristic thereof” in the penalty clause of their settlement agreement, intended that phrase to be defined strictly as any property definitively established by Connecticut appellate jurisprudence to be distributable pursuant to § 46b–81.
The defendant contends that any error the trial court made in determining whether the pension was marital property is harmless in light of the fact that the court also found that the defendant orally disclosed the pension to the plaintiff and her representatives, and the court's finding, which has evidentiary support and, therefore, is not clearly erroneous, necessarily is fatal to the plaintiff's claim of fraud. For the reasons explained in part II of this opinion, the trial court's finding of disclosure must be revisited because of the court's failure to consider and/or admit important, relevant evidence. Moreover, the court's disregard of that evidence stemmed from its flawed analysis regarding whether the pension was distributable property. Accordingly, we disagree that any impropriety in the trial court's classification of the pension could not have affected its ultimate conclusion that fraud was unproven.
II
The plaintiff's next claim concerns the trial court's ruling as to the relevance of evidence concerning the value of the defendant's pension. The plaintiff contends that the court improperly excluded important evidence in that regard, and refused to consider other relevant evidence. The defendant contends in response that, although there was some evidence of the pension's value before the trial court, that evidence was “unnecessary” in the first phase of the proceedings on the motion to open the judgment and “irrelevant” in the second phase. We agree with the plaintiff.
A trial court's ruling as to whether evidence is relevant and probative is subject to review for an abuse of discretion. State v. Jackson, 304 Conn. 383, 424, 40 A.3d 290 (2012). “Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. Conn.Code Evid. § 4–1. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 496–97, 964 A.2d 73 (2009).
The following additional procedural history is relevant. During the first phase of the proceedings, the trial court directed the parties to focus on the specific, narrow issue of whether the defendant's pension qualified as marital property pursuant to § 46b–81 at the time of the dissolution judgment. Accordingly, the parties addressed that issue alone, and any evidence presented as to the pension's value was peripheral and incomplete. Miller, an actuarial and pension expert who testified on the plaintiff's behalf, did not offer a firm opinion as to the pension's value. Rather, he testified only as to whether, as a general or conceptual matter, the pension was susceptible of being valued, and he offered a “guesstimate” that at the end of 1999, it was worth approximately $500,000.
According to the trial court, the first phase of the hearing was focused on the classification stage of “the [three stage] Krafick model.” Valuation and distribution are the other two stages of that model. See footnote 26 of this opinion.
While testifying, Miller referenced the personalized projection report that PricewaterhouseCoopers LLP, had made available to the defendant in April, 2000, and that report was admitted into evidence. Miller explained that the report, employing certain assumptions as to the vesting date, discount rate, earnings growth and life expectancy, stated that the defendant's future pension benefits, at the end of 1999, had a present value of $3,839,117. The projection report did not take into account the contingencies to which the defendant's ultimate receipt of the pension was subject, however, nor did it specify which portion of the present value was attributable to services that were yet to be rendered, postdissolution.
At the conclusion of the first phase of the motion proceedings, the trial court held that the pension was not marital property subject to distribution. Thereafter, during the second phase, conducted approximately nine months later, the court ruled, sua sponte, that at that stage of the trial, any evidence of the value of the pension, whether proffered by either party, was irrelevant and immaterial and would not be admitted. In light of that ruling, the plaintiff made an offer of proof for the record, which included her disclosure of Miller as an expert witness and a report that Miller had prepared to value the pension, in which he opined that it had a substantial value, in excess of $1 million. The court precluded the proffered evidence, again holding that it was irrelevant and immaterial to the second phase of the proceedings.
Miller completed his report subsequent to the first phase of the motion proceedings.
The plaintiff's expert witness disclosure indicated that Miller would testify about, inter alia, the present value of the defendant's pension as of the date of the dissolution judgment. Specifically, Miller would have testified consistently with his report that, as of that date, the defendant had earned an annual benefit of $105,988, and that the present value of that income stream was in excess of $1 million. Miller's report details his methodology, the information on which he relied and the assumptions he employed.
After the second phase, the trial court concluded that the plaintiff had not proven fraud, essentially adopting the defendant's account of disclosure and discrediting the plaintiff's account of nondisclosure. The plaintiff subsequently filed a motion for articulation wherein she requested, inter alia, that the trial court articulate whether it had made any determination as to the value of the defendant's pension at the time of the dissolution judgment and, if so, what that value was. Following the trial court's denial of the plaintiff's motion, this court, upon review, ordered the trial court to provide the requested articulation. In the articulation that followed, the trial court explained that it considered the plaintiff's request to be a “red herring” because the court unequivocally had found that the pension was not property at the time of the dissolution judgment. According to the court, “[t]he clearly articulated purpose of the first phase of the trial was not to determine the value of the [pension], rather it was to determine if the [pension] should be construed as a marital asset at the time of the decree dissolving the marriage. This question was answered in the negative.” (Emphasis in original.) Furthermore, the court explained, “[a]ssuming arguendo that [it] was looking to determine the value of the [pension] ( which it was not ),” there was “no credible evidence as to [the] value of the [pension] as of May 25, 2001, the date of the dissolution of the [parties'] marriage.” (Emphasis in original.) In this regard, the court noted that the valuation provided by Miller in the first phase of the motion proceedings was only a “ ‘guesstimate’ ” that the court did not find to be credible.
We agree with the plaintiff that the court's evidentiary rulings, whereby it refused to admit the most probative evidence of the pension's value or to consider and determine that value at all, were improper. First, to prevail on her motion to open the judgment, the plaintiff needed to prove that the defendant misrepresented the amount of property he owned by failing to disclose the existence of the pension and all of its salient features; see footnote 18 of this opinion; and that she relied on that misrepresentation to her detriment by agreeing to a settlement to which she would not have agreed had she known all the details about the pension. See Weinstein v. Weinstein, supra, 275 Conn. at 685, 882 A.2d 53; Gelinas v. Gelinas, supra, 10 Conn.App. at 173, 522 A.2d 295. Because of the absence of any documentary proof directly evidencing disclosure of the pension by the defendant and knowledge of it by the plaintiff, the trial court decided these issues largely on the basis of its assessment of the parties' credibility. In short, the court credited the defendant's version of events and discredited the plaintiff's version. If, however, the trial court were to have determined, on the basis of a complete evidentiary record, that the pension had considerable worth; see footnote 34 of this opinion; that determination could have severely undermined the court's finding that the plaintiff had full knowledge of the pension, yet simply chose not to pursue any interest in it or some alternative compensation for relinquishing any such interest. Similarly, a finding of substantial value may well have changed the trial court's assessment of the defendant's account of full and frank disclosure to the plaintiff, namely, disclosure not only of the pension's existence, but of all its salient features, including its value.
The dissent contends that the following analysis is inappropriate because the plaintiff, at trial, did not proffer her evidence of the pension's value along with a detailed explanation of its relevance to the issues before the court, specifically arguing that the evidence would discredit the defendant's testimony regarding those issues. According to the dissent, therefore, we improperly hold that the evidence was admissible on an unpreserved basis. The trial court, however, did not even wait for the plaintiff to offer the evidence, or for the defendant to object to it, before ruling, sua sponte, that no evidence of value would be admitted, although both parties had prepared such evidence and intended to present it. In the highly unusual circumstances of this case, wherein the trial court imposed its own theoretical framework on the litigation, unexpectedly altered that framework midstream and, then, proactively ruled on evidentiary objections that had not been made, we decline to penalize the plaintiff for not making a textbook objection to the trial court's sua sponte ruling. Because, as we explain hereinafter, valuation evidence clearly was relevant to both the elements of fraud and the factors governing a motion to open on the basis of fraud, the trial court's ruling likely invoked confusion.
Pursuant to their separation agreement, the parties had endeavored to divide their assets equally. At the time of the dissolution, they stipulated that their former marital home was worth $550,000, and their final financial affidavits reflect other divisible assets of approximately $1.5 million. Accordingly, an additional asset valued in excess of $1 million was extremely significant.
In connection with her motion to open, the plaintiff also needed to show that the outcome of a new trial probably would differ. Weinstein v. Weinstein, supra, 275 Conn. at 685, 882 A.2d 53. Because of the court imposed bifurcated hearing and the trial court's improper conclusion, after the first phase, that the pension definitively was not property in May, 2001, the plaintiff was foreclosed from arguing that, in light of the uncertain state of the law at that time, the pension, if fully disclosed to the dissolution court, may well have been treated as distributable property. In this event, the value of the pension was relevant to the question of whether the plaintiff would have been awarded a substantially different portion of the parties' total assets. Conversely, even if the plaintiff could not show that the dissolution court would have treated the pension as distributable property, the value of the pension was relevant to the question of whether that court, had it known of the pension, still would have found the parties' separation agreement to be fair and equitable and approved it. The trial court, without considering any evidence of value, concluded that Judge Harrigan's finding in this regard would not have differed. We do not agree. Particularly, if the pension had a present value in excess of $1 million, as Miller, the plaintiff's expert, intended to testify; see footnote 34 of this opinion; it is questionable whether Judge Harrigan would have approved the parties' agreement, which basically endeavored to give each party approximately one half of the remaining marital property.
In the dissent's view, Miller's report and testimony properly were excluded because, due to the report's analytical deficiencies, it was entirely irrelevant and hence inadmissible. The dissent contends that the trial court, even had it considered the evidence, necessarily would not have found it credible. According to the dissent, even though Miller explicitly listed a number of uncertainties regarding the pension, he did not actually take them into account.
The trial court did not reject the cited evidence on the rationale set forth by the dissent, and even the defendant does not suggest such a sweeping argument. In any event, we disagree with the dissent's assessment of the report, which was prepared by a highly qualified expert, with degrees in mathematics and actuarial science, who specialized in evaluating employee pensions and their present values. The dissent speculates that, although Miller articulated several contingencies to which the defendant's receipt of his pension was subject, he did not actually take them into account. A more plausible reading, however, is that he did take them into account, but did not believe they warranted the excessively high discount rate chosen by Mark S. Campbell, the defendant's expert. For example, the report quotes PricewaterhouseCoopers LLP documents and reports evidencing the firm's commitment to the pension and the firm's financial health, and it discusses the defendant's lengthy employment history with the firm, including almost one decade as a partner, in support of the conclusion that he was unlikely to be terminated prematurely. Additionally, because the trial court did not permit Miller to testify, he never had the opportunity to explain the reasoning behind his report, nor to explain why he disagreed with the opposing report, which the dissent simply accepts unquestioningly. Miller identifies several problems with Campbell's estimate of the pension's present value, not least among them that it was in “direct contrast” to the projection report prepared by PricewaterhouseCoopers LLP, and made available to the defendant, in April, 2000. In crediting Campbell's report over Miller's, the dissent essentially is finding facts, a task which clearly is not the function of an appellate tribunal. Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 106, 84 A.3d 828 (2014).
For the foregoing reasons, we conclude that the trial court's evidentiary rulings, which flowed from its improper analysis regarding whether the pension was distributable property, were improper. Additionally, the court's finding that there was no fraud, which flowed from those evidentiary rulings, also is fatally flawed. Consequently, the trial court's denial of the plaintiff's motion to open was an abuse of discretion.
The dissent criticizes us for failing to analyze directly whether the trial court's factual finding that the pension was disclosed is clearly erroneous. Our response to that criticism is that the plaintiff has not made that argument, but rather, has claimed evidentiary error.
III
The plaintiff's last claim is that the trial court improperly required her to bear the burden of proving fraud under the circumstances of this case. According to the plaintiff, once it is established that a party to a dissolution action has failed to list a substantial asset either on his or her financial affidavit or in open court, the burden should shift to that party to prove, by clear and convincing evidence, either the absence of fraud or that the nondisclosure was harmless. The plaintiff concedes that she did not raise this claim at trial, but asks that this court find plain error in the trial court's failure to allocate the burden of proof as she suggests. The defendant responds that there is no plain error for this court to rectify because the trial court correctly applied existing law that required the plaintiff to bear the burden of proving the elements of fraud. We agree with the defendant.
“[The plain error] doctrine, codified at Practice Book § 60–5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... Implicit in this very demanding standard is the notion ... that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review....
“An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable.... This determination clearly requires a review of the plain error claim presented in light of the record.
“Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application.... [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.... In State v. Fagan, [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007) ], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] ... unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76–78, 60 A.3d 271 (2013).
We agree with the defendant that the trial court correctly allocated and applied the burden of proof that, for decades, has been part of our jurisprudence governing motions to open dissolution judgments on the basis of fraud, and furthermore, these cases have not distinguished between fraud based on misrepresentation and that based on nondisclosure. See, e.g., Weinstein v. Weinstein, supra, 275 Conn. at 684–85, 882 A.2d 53; Billington v. Billington, supra, 220 Conn. at 215, 217–18, 595 A.2d 1377; Jucker v. Jucker, 190 Conn. 674, 675, 677, 461 A.2d 1384 (1983); see also Terry v. Terry, 102 Conn.App. 215, 223, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). The plaintiff did not object to the imposition of these standards at trial, nor did she suggest that another framework should apply. Indeed, she concedes on appeal that, under existing law, she bore the burden of proving the elements of fraud by clear and convincing evidence. In sum, the plaintiff does not contend that the court improperly applied existing law, but rather, she requests that we create and adopt a new exception to that law, and then conclude that the trial court improperly failed to apply that exception.
As the preceding explanation of the plain error doctrine makes clear, however, a prerequisite to its invocation is the trial court's commission of an obvious and serious error. We cannot find plain error under the circumstances of this case because there is no true error to correct. “[T]he plain error doctrine should not be applied in order to review a ruling that is not arguably incorrect in the first place.” State v. Pierce, 269 Conn. 442, 453, 849 A.2d 375 (2004); id. (holding that Appellate Court improperly invoked plain error to raise supplementary issues when “trial court acted pursuant to a presumptively valid statute in accordance with its express provisions”). As we previously have explained, when a trial court has “follow [ed] [an] established rule of law ... [it] can hardly be said to have committed plain error”; (internal quotation marks omitted) Williamson v. Commissioner of Transportation, 209 Conn. 310, 319, 551 A.2d 704 (1988); id. (no plain error when trial court instructed jury, in accordance with long line of cases applying General Statutes § 13a–144, that it was plaintiff's burden to prove defective highway was sole proximate cause of her injuries); and “[i]t is not plain error for a trial court to follow Connecticut law.” Sorrentino All Seasons Services, 245 Conn. 756, 768, 717 2d 150 (1998); id., at 766–68, 717 A.2d 150 (rejecting defendant's unpreserved claim that it was plain error for court to instruct jury on plaintiff's burden of proof in wrongful discharge case in accordance with standard articulated in state cases). When a party's claim is dependent on the recognition of a new legal standard, plain error cannot apply. Feen v. New England Benefit Cos., 81 Conn.App. 772, 778, 841 A.2d 1193 (no plain error where appellant's claim was contingent on unsettled legal principles), cert. denied, 269 Conn. 910, 852 A.2d 739 (2004). We conclude, therefore, that the trial court did not commit plain error by placing the burden of proving fraud on the plaintiff in accordance with established Connecticut case law.
To summarize, the trial court improperly concluded that the defendant's unvested pension, in May, 2001, definitively was not distributable marital property pursuant to § 46b–81. Because the court employed an incorrect legal analysis to conclude that the pension was not property, it improperly refused to admit and/or consider evidence of the pension's value, evidence which was relevant to the issues of whether it had been disclosed and whether it would have affected the outcome of the dissolution action. Consequently, the trial court's denial of the plaintiff's motion to open was an abuse of discretion. The trial court applied the correct burden of proof to the plaintiff's claim, and accordingly, did not commit plain error in that regard.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion NORCOTT, PALMER, EVELEIGH and McDONALD, Js., concurred.
ZARELLA, J., concurring in part and dissenting in part.
The majority concludes that the trial court improperly denied the motion of the plaintiff, Catherine Reville, to open and set aside the judgment dissolving her marriage to the defendant, John Reville, on the basis of allegations that the defendant committed fraud by failing to disclose an unvested pension benefit on his financial affidavits during predissolution settlement negotiations. The majority specifically disagrees with the trial court's determination that (1) it was necessary to resolve the question of whether the benefit constituted distributable marital property under General Statutes (Rev. to 2001) § 46b–81 in order to determine whether the defendant committed fraud, (2) the law at the time of the dissolution proceedings definitively established that the benefit did not constitute distributable marital property, and (3) in light of the foregoing, there was no need to consider evidence of the value of the benefit in deciding whether the defendant committed fraud. Rather, the majority concludes that the defendant was “legally obligated” to disclose the existence and characteristics of the unvested pension benefit during the pre-dissolution settlement negotiations, regardless of whether the benefit constituted distributable marital property. The majority also concludes that the trial court's decision not to allow expert testimony on the value of the benefit undermined its factual finding that the defendant disclosed the benefit to the plaintiff, thus causing the court to commit reversible evidentiary error when it determined that the defendant did not commit fraud. I disagree with these conclusions because the majority disregards the legal grounds on which the plaintiff's motion to open was based, namely, that the unvested pension benefit constituted distributable marital property and that the defendant's failure to disclose it not only caused her to rely to her detriment on a false representation of his assets, but was a clear violation of the parties' separation agreement. The majority also misconstrues this court's precedent on the disclosure of property interests in dissolution proceedings and takes an untenable position with respect to the trial court's factual finding that the defendant disclosed the benefit to the plaintiff. Accordingly, although I join in part III of the majority's opinion regarding the plaintiff's burden of proof, I respectfully dissent from parts I and II.
I
The majority first concludes that the trial court was not required to determine whether the defendant's unvested pension benefit constituted distributable marital property in May, 2001, because “any retirement or employment benefit potentially receivable by a party to a dissolution action should be disclosed [in] that party's financial affidavit along with all known details as to its value, vesting requirements and current status ... regardless of whether it ... [is] classified as distributable marital property.” (Emphasis omitted; footnotes omitted.) I disagree.
The majority loses sight of the legal grounds on which the plaintiff's motion was based. The plaintiff's original motion alleged that the defendant committed fraud when he failed to disclose in his financial affidavit “ a significant asset which would have been property subject to division under § 46b–81,” specifically, an unvested pension benefit of substantial value. (Emphasis added.) Approximately four months later, the plaintiff requested permission to amend her motion in order to allege, as a second ground on which to open the judgment, that the defendant's failure to disclose the benefit was a violation of the parties' separation agreement.Paragraph 13.11 of the separation agreement provided in relevant part: “If it is established by a preponderance of the evidence that a party misrepresented or intentionally concealed a property interest, the effect thereof or an important characteristic thereof, the interest of the concealing party will be transferred in full to the nonconcealing party and the concealing party will pay all costs, fees, expenses, attorney's fees, and damages of the nonconcealing party caused by said concealment.” (Emphasis added.) The plaintiff noted that the proposed amendment would allow her to seek enforcement of the remedies established by paragraph 13. 11, which she claimed were “appropriate and commensurate” with the allegations of nondisclosure and fraud in her original motion. In other words, a determination that the benefit constituted distributable marital property on the date of dissolution would allow the plaintiff to seek 100 percent of the benefit's value without subjecting all of the parties' other assets to further review and distribution by the court. Consequently, there can be no doubt that the principal issue raised in the plaintiff's motion required the trial court to make an initial determination as to whether the defendant's unvested pension benefit constituted distributable marital property.
The asset was known as the “PricewaterhouseCoopers Partners Retirement Plan.”
The plaintiff filed her original motion to open on May 11, 2005. She subsequently filed her request for permission to amend the motion and the proposed amended motion on September 15, 2005. On November 14, 2008, she filed a third and final amended motion in which she added allegations relating to a small, but also allegedly undisclosed, retirement plan that had not been referenced in her previous motions.
The language in § 46b–81 also indicates that any resource subject to assignment must be identified as property. As previously stated, the clearly articulated purpose of the plaintiff's motion was to obtain the full value of the defendant's unvested pension benefit under § 46b–81, which provides in relevant part: “(c) In fixing the nature and value of the property, if any, to be assigned, the court ... shall consider the length of the marriage, the causes for the ... dissolution of the marriage ... the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income....” There is nothing in this language suggesting that a resource that is subject to assignment can be considered anything other than property. Accordingly, in addressing the plaintiff's claim that the unvested pension benefit was a resource subject to assignment that should have been disclosed, the trial court was required under § 46b–81 to determine initially whether the benefit constituted property.
The term “resource” is used throughout this opinion to describe all financial interests potentially subject to equitable distribution because that is the term this court used in Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995), in discussing whether a vested benefit should be deemed property subject to distribution under § 46b–81. A resource may or may not be an asset or property, but only an asset or property is subject to equitable distribution under § 46b–81.
In her final amended motion to open, the plaintiff modified the language she used in her prior amended motion from claiming a right to “100 percent of the asset” to claiming a right to “one half or 100 percent of the concealed asset” because another provision in paragraph 13.11 of the parties' separation agreement provided for an equal division of the concealed asset if the nondisclosure was not fraudulent.
This threshold determination also was required under the law that existed when the parties' divorce was finalized in May, 2001, which is the law that must be appliedin resolving the issues in this case. Prior to that time, this court consistently took the position that, when it was unclear whether a particular resource was subject to division under § 46b–81, a determination first must be made as to whether it constituted property. For example, only six years earlier, the court had stated in Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (1995), that the “first” step in considering the equitable distribution of resources in a dissolution proceeding is to determine “whether the resource is property within [the meaning of] § 46b–81....” Id., at 792, 663 A.2d 365. Moreover, this was not a newly created principle but had been articulated and applied before Krafick, and continued to be applied thereafter. See, e.g., Lopiano v. Lopiano, 247 Conn. 356, 367, 752 A.2d 1000 (1998) (personal injury award deemed subject to equitable distribution following determination that award constituted property under § 46b–81); Bornemann v. Bornemann, 245 Conn. 508, 518, 752 A.2d 978 (1998) (unvested stock options in which employee had enforceable right deemed subject to equitable distribution following determination that options constituted property under § 46b–81); Simmons v. Simmons, 244 Conn. 158, 168, 708 A.2d 949 (1998) (medical degree not subject to equitable distribution because degree did not constitute property under § 46b–81); Rubin v. Rubin, 204 Conn. 224, 225, 232, 527 A.2d 1184 (1987) (interest in revocable inter vivos trust not subject to equitable distribution because trust did not constitute property under § 46b–81); Krause v. Krause, 174 Conn. 361, 364–65, 387 A.2d 548 (1978) (potential inheritance not subject to equitable distribution because it did not constitute property under predecessor to § 46b–81). Consequently, the trial court properly began its analysis of the plaintiff's claim by considering whether the defendant's unvested pension benefit constituted distributable marital property.
The trial court acknowledged nine months later during a subsequent hearing on the plaintiff's amended motion to open that it was aware of, and had followed, the “ Krafick model” in its analysis of the property issue. The court specifically noted that, because this court had not yet decided Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001), at the time of dissolution, it had followed “the Krafick model ... the three part model” in ruling on the motion, which required an initial determination of whether the unvested pension constituted distributable marital property.
II
The trial court ultimately determined that the defendant “did not have an ‘existing enforceable right’ in the [unvested pension benefit], which was, therefore, not marital property subject to division pursuant to ... § 46b–81.” I agree with this conclusion and believe the plaintiff's motion should have been denied on that ground. The trial court nonetheless conducted another hearing to consider the question of fraud because the defendant's failure to bring the benefit to the attention of the plaintiff and the court during the litigation or to include it, “if only as a footnote, on his financial affidavit, prevented the court from fully performing its statutory duty under General Statutes [Rev. to 2001] § 46b–66 to find the agreement of the parties to be fair and equitable under all the circumstances, and/or to otherwise give due consideration to this factor in its award of alimony.” The majority likewise concludes that the unvested pension benefit should have been disclosed in May, 2001, regardless of its status as property. In reaching that conclusion, the majority relies on (1) the principle of full and frank disclosure articulated in Billington v. Billington, 220 Conn. 212, 219–22, 595 A.2d 1377 (1991), (2) the discussion of unaccrued pension rights in Thompson v. Thompson, 183 Conn. 96, 100, 438 A.2d 839 (1981), (3) the holding in Bender v. Bender, 258 Conn. 733, 749, 785 A.2d 197 (2001), that unvested pension benefits constitute distributable marital property, which the majority claims the defendant should have anticipated when preparing his financial affidavits, and (4) several statutory provisions pertaining to financial orders in dissolution proceedings. See General Statutes (Rev. to 2001) § 46b–66 (court shall consider “financial resources ... of the spouses” in reviewing separation agreements for fairness and equity); General Statutes (Rev. to 2001) § 46b–81 (c) (court shall consider, inter alia, “the opportunity of each [party] for future acquisition of capital assets and income” in distributing marital property); General Statutes (Rev. to 2001) 46b–82 (court shall consider, inter alia, “[each party's] amount and sources of income” in ordering alimony). In my view, none of these authorities supports the majority's conclusion.
The issue of the trial court's ability to perform its statutory duty was not raised by the plaintiff but, rather, was raised by the court sua sponte.
General Statutes (Rev. to 2001) § 46b–66 provides in relevant part: “In any case under this chapter where the parties have submitted to the court an agreement ... concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses ... in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances....”
Hereinafter, all references to § 46b–66 are to the 2001 revision.
General Statutes (Rev. to 2001) § 46b–81 provides in relevant part: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint ... the Superior Court may assign to either the husband or wife all or any part of the estate of the other....
General Statutes (Rev. to 2001) § 46b–82 provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other.... In determining whether alimony shall be awarded, and the duration and amount of the award, the court ... shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81....”
Hereinafter, all references to § 46b–82 are to the 2001 revision.
A
The majority first determines that the defendant should have disclosed the unvested pension benefit in his financial affidavits under the principle of full and fair disclosure set forth by this court in Billington. To the extent the court in Billington articulated a principle of general applicability that might have guided the trial court in May, 2001, however, it was limited to the accuracy of the information provided by the parties regarding assets or interests that they knew were subject to disclosure under the relevant rules of practice, statutory provisions, and existing judicial precedent at that time. It is therefore improper for the majority to rely on Billington in concluding that the defendant should have disclosed his unvested pension benefit, regardless of its status as distributable marital property. As the court in Billington explained: “Our [rules of practice have] long required that at the time a dissolution of marriage ... is claimed for a hearing, the moving party shall file a sworn statement ... of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income.... The opposing party is required to file a similar affidavit at least three days before the date of the hearing....
“Our cases have uniformly emphasized the need for full and frank disclosure in that affidavit. A court is entitled to rely upon the truth and accuracy of sworn statements required by [the rules of practice], and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding.... These sworn statements have great significance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence.” Citations omitted; emphasis added; internal quotation marks omitted.) Billington v. Billington, supra, 220 Conn. at 219–20, 595 A.2d 1377.
The majority takes this language out of context and applies it in a manner unintended by the Billington court. The quoted passage in Billington had nothing to do with whether a particular resource was subject to disclosure but with the parties' obligation to disclose the true value of a resource previously disclosed as property in their financial affidavits. See id. Consequently, it was the quality, amount and accuracy of the information provided by the defendant regarding the value of the resource, not whether the resource should have been disclosed in the first place, to which the court was referring in the quoted passage. See id. In fact, to my knowledge, this court never has relied on the principle of full and fair disclosure, either before or after Billington, in determining whether a resource was subject to disclosure when the law was unclear as to whether it should have been disclosed by the parties or considered by the trial court in entering its financial orders. See, e.g., Bender v. Bender, supra, 258 Conn. at 749, 785 A.2d 197; Lopiano v. Lopiano, supra, 247 Conn. at 367, 752 A.2d 1000; Bornemann v. Bornemann, supra, 245 Conn. at 518, 752 A.2d 978; Simmons v. Simmons, supra, 244 Conn. at 164, 708 A.2d 949; Krafick v. Krafick, supra, 234 Conn. at 798, 663 A.2d 365; Rubin v. Rubin, supra, 204 Conn. at 232, 527 A.2d 1184; Thompson v. Thompson, supra, 183 Conn. at 100, 438 A.2d 839; Krause v. Krause, supra, 174 Conn. at 364–65, 387 A.2d 548. Even in Weinstein v. Weinstein, 275 Conn. at 671, 882 A.2d 53 (2005), which the majority cites but was decided four years following dissolution of the parties' marriage in the present case, the court invoked the principle of full and fair disclosure in discussing the allegedly fraudulent valuation of a resource the defendant previously had disclosed in his financial affidavit, not in determining whether an undisclosed resource should have been disclosed by the defendant. Id., at 686–88, 882 A.2d 53; see also Friezo v. Friezo, 281 Conn. 166, 181–83, 191–93, 914 A.2d 533 (2007).
The underlying issue in Billington was “whether a party to a marital dissolution judgment must establish, in order [to] subsequently ... open the judgment based upon a claim of fraud, that she was diligent during the original action in attempting to discover the fraud.” Billington v. Billington, supra, 220 Conn. at 214, 595 A.2d 1377. The alleged fraud in Billington was the defendant's failure to disclose information that would have resulted in a significantly higher valuation of a piece of real property that he had listed on his financial affidavit. Id., at 214–15, 595 A.2d 1377. The quoted passage was thus intended to emphasize the parties' obligation to provide accurate information in their financial affidavits as a context for its subsequent discussion of the diligence issue. See id., at 219–20, 595 A.2d 1377. At the time Billington was decided, this court had not yet determined whether unvested property interests were too speculative to be considered assets subject to distribution.
The majority does not put the cart before the horse but, rather, forgets the horse entirely. Only if it had been undisputed, which was not the case here, or the trial court had concluded, that the benefit was distributable marital property would it be appropriate for this court to apply the principle of full and fair disclosure in determining whether the defendant had committed fraud. Indeed, that is why, as previously discussed, the principle never has been applied to settle the question of whether a disputed resource should be disclosed in a dissolution proceeding. It is also why the trial court in the present case properly began its analysis, as other courts had done numerous times before, by considering whether the unvested pension benefit constituted distributable marital property.
The standard of full and fair disclosure, when applied to every resource, including a resource that has never been identified as property, is too broad to provide the parties and the courts with adequate guidance as to when disclosure is required because it provides no basis for distinguishing between resources that require disclosure and those that do not. In other words, without more specific guidance, parties would be required to disclose on their financial affidavits every conceivable resource, both present and future, to which they might be entitled, including a medical degree, a potential inheritance, or an interest in a revocable inter vivos trust, all of which this court had determined prior to May, 2001, were not interests subject to equitable distribution. See Simmons v. Simmons, supra, 244 Conn. at 168, 708 A.2d 949 (medical degree); Rubin v. Rubin, supra, 204 Conn. at 232, 527 A.2d 1184 (revocable inter vivos trust); Krause v. Krause, supra, 174 Conn. at 364–65, 387 A.2d 548 (potential inheritance). In contrast, when applied to a resource that the parties agree must be disclosed, such as income, real estate or a vested pension benefit, “full and fair disclosure” is easily understood and properly construed as referring to all of the available information regarding the nature and value of the resource. Consequently, the majority improperly relies on the principle of full and fair disclosure in concluding that the defendant should have disclosed his unvested pension benefit to the plaintiff in May, 2001.
B
The majority also relies on Thompson v. Thompson, supra, 183 Conn. at 96, 438 A.2d 839, for the proposition that disclosure was required because a trial court may consider a party's “unaccrued pension benefits as [a] source of future income when fixing [the] property assignment and alimony orders....” Text accompanying footnote 20 of the majority opinion. A close examination of the record and language in Thompson, however, reveals that the pension benefits at issue in that case were vested, unlike in the present case, and, accordingly, the reasoning in Thompson is inapposite.
In Thompson, one of the issues before the court was “the extent to which a trial court may take into account unaccrued pension rights....” Thompson v. Thompson, supra, 183 Conn. at 97, 438 A.2d 839. The plaintiff in Thompson argued that the trial court improperly had relied on “evidence of pension benefits [that she] would receive if she continued to work at her present job until [the] age [of] sixty-five”; id., at 98, 438 A.2d 839; because the pension was “too speculative in nature to be considered by a court fashioning alimony and property assignment orders.” Id., at 100, 438 A.2d 839. This court disagreed, reasoning that “[p]ension benefits represent a form of deferred compensation for services rendered.... As such, they are conceptually similar to wages ... [under §§ 46b–81 and 46b–82].... Just as current and future wages are properly taken into account under these statutes, so may unaccrued pension benefits, a source of future income, be considered....
“The ... assertion that pension benefits are as uncertain and speculative as an expected inheritance is unsound. It is true that the exact amount of the benefits to be received often will depend upon whether the employee survives his retirement age, how long he lives after retirement and what his compensation level is during his remaining years of service. But these contingencies are susceptible to reasonably accurate quantification.... The present value of a pension benefit may be arrived at by using generally accepted actuarial principles....” (Citations omitted; footnote omitted.) Id., at 100–101, 438 A.2d 839.
Since Thompson, this court, as well as the majority in the present case, has misunderstood the decision as referring to unvested pension benefits. See Krafick v. Krafick, supra, 234 Conn. at 794–95 n. 20, 663 A.2d 365; Bender v. Bender, supra, 258 Conn. at 743–44, 785 A.2d 197. When the court in Thompson referred to the pension benefits at issue as “unaccrued” benefits, however; Thompson v. Thompson, supra, 183 Conn. at 97, 100, 101, 438 A.2d 839; it was not referring to unvested pension benefits but to pension benefits that would accrue in the future should the plaintiff continue to work for her employer until the age of sixty-five under a pension plan in which she already had a vested interest. See id., at 100 n. 3, 438 A.2d 839 (distinguishing between “unaccrued” pension benefits that would accrue in future under vested pension and “[v]ested” pension benefits that already have accrued). This conclusion is supported by the record in Thompson and the arguments in the parties' appellate briefs, all of which expressly referred to the plaintiff's admission that her pension had “vested” and that the question before the court was whether the increase in her retirement benefits from her continued employment until the age of sixty-five should be considered by the court in its property division and alimony orders. See id., at 99–100. Thompson thus spoke only of future, unaccrued benefits under a vested pension plan, and, as a result, its reasoning has no bearing on whether the defendant in the present case was legally obligated in May, 2001, to disclose his unvested pension benefit in his financial affidavits.
The majority's conclusion that “ Thompson still stands for the proposition that benefits that are not distributable property, for whatever reason, may be taken into account by a court fashioning financial orders in a dissolution proceeding”; footnote 20 of the majority opinion; is incorrect, and, therefore, Thompson provides no support for the majority's assertion that there were unmistakable signs before the dissolution judgment in the present case that this court would determine in Bender that unvested pension benefits constituted property.
C
The majority further claims that, although this court's holding in Bender that an unvested pension benefit is distributable marital property was not retroactive to May, 2001, the trial court in the present case “should have acknowledged that, in early to mid–2001, around the time the parties were engaged in settlement negotiations, the proper treatment of unvested pension benefits in dissolution actions was an open question in Connecticut”; (emphasis omitted); and that “there were significant indications that it would be decided as it was” in Bender. I disagree.
There are several problems with this reasoning. First, the possibility in May, 2001, that this court might soon determine in Bender that unvested pension benefits constituted distributable marital property is irrelevant because the parties were required to act on the basis of the law that existed on the date of dissolution, which, as the majority concedes, did not yet recognize that unvested pension benefits constituted property.
Second, to the extent the majority views “significant indications” as consisting of judicial decisions that broadened the interpretation of the relevant statutes and required the disclosure of other types of benefits, including vested pension benefits; Krafick v. Krafick, supra, 234 Conn. at 798, 663 A.2d 365; personal injury awards; Lopiano v. Lopiano, supra, 247 Conn. at 371, 752 A.2d 1000; and unvested stock options; Bornemann v. Bornemann, supra, 245 Conn. at 518, 752 A.2d 978; the fact that this court had been asked repeatedly to decide whether the parties to a dissolution proceeding had a legal obligation to disclose such benefits attests to the ambiguity of the applicable law at that time and the necessity for its continued interpretation to determine the scope of the disclosure requirement. Moreover, this court had concluded in several previous cases that the disputed resource or benefit did not constitute distributable marital property. See Simmons v. Simmons, supra, 244 Conn. at 178, 708 A.2d 949 (medical degree); Rubin v. Rubin, supra, 204 Conn. at 232, 527 A.2d 1184 (interest in revocable inter vivos trust); Krause v. Krause, supra, 174 Conn. at 364–65, 387 A.2d 548 (potential inheritance). Indeed, of the six cases decided by this court prior to May, 2001, in which the parties disagreed as to whether a benefit or resource was distributable marital property, the court determined in only three cases that the benefit or resource constituted property. Lopiano v. Lopiano, supra, 247 Conn. at 371, 752 A.2d 1000 (personal injury awards); Bornemann v. Bornemann, supra, at 518, 752 A.2d 978 (unvested stock options); Krafick v. Krafick, supra, at 798, 663 A.2d 365 (vested pension benefits). Thus, the “growing trend” to which the majority refers did not necessarily point to a future decision by this court that a party's unvested pension benefit constituted property. Finally, insofar as the majority views the decisions of other jurisdictions that required the disclosure of unvested pension benefits in 2001 as providing a significant indication regarding this court's future decision in Bender, it only highlights the majority's recognition that unvested pension benefits were not considered property subject to disclosure in this jurisdiction during the parties' predissolution negotiations.
In sum, neither the defendant nor the trial court could have anticipated this court's decision in Bender because there was no Connecticut case law in May, 2001, suggesting that an unvested pension benefit constituted distributable marital property. No decision of this court or the Appellate Court, including Thompson, stated even in dictum that a trial court should consider an unvested pension benefit as a property interest in crafting its financial orders. The only references to unvested pension benefits in cases decided before May, 2001, appeared in two footnotes in Krafick, one of which incorrectly construed Thompson; see Krafick v. Krafick, supra, 234 Conn. at 794–95 n. 20, 798–99 n. 23, 663 A.2d 365; a footnote in Rosato v. Rosato, 255 Conn. 412, 422 n. 16, 766 A.2d 429 (2001); and a passing comment in Smith v. Smith, 249 Conn. 265, 274, 752 A.2d 1023 (1999), with Rosato recognizing only months before the separation agreement in the present case was drafted that the status of unvested pension benefits remained unresolved in Connecticut.
In the first Krafick footnote, the court evaluated the effect of Thompson on the issue of whether vested pension benefits constituted distributable marital property and incorrectly observed that Thompson had “addressed nonvested pension benefits and concluded only that such interests were not too speculative to be taken into account in some fashion by the trial court in crafting its financial orders in a dissolution action.” Krafick v. Krafick, supra, 234 Conn. at 794–95 n. 20, 663 A.2d 365. In a second footnote, the court further noted that its conclusion that vested pension benefits constituted property was consistent with the conclusions of courts in other jurisdictions that nonvested pensions constitute property. Id., at 798–99 n. 23, 663 A.2d 365. Only two months before dissolution of the parties' marriage, however, this court expressly recognized that the court in Krafick had “left open the question of whether nonvested pensions are distributable [marital assets]”; (emphasis omitted) Rosato v. Rosato, supra, 255 Conn. at 422 n. 16, 766 A.2d 429; which was consistent with an even more explicit recognition by this court only one year earlier that “the marital estate divisible pursuant to § 46b–81 refers to interests already acquired, not to expected or unvested interests....” Smith v. Smith, supra, 249 Conn. at 274, 752 A.2d 1023. Thus, insofar as the majority suggests that the case law existing around the time of the parties' divorce was “trending toward a broader conception of what constituted distributable [marital] property”; footnote 24 of the majority opinion; see Lopiano v. Lopiano, supra, 247 Conn. at 371, 752 A.2d 1000; Bornemann v. Bornemann, supra, 245 Conn. at 518, 752 A.2d 978; Krafick v. Krafick, supra, at 798, 663 A.2d 365; this court's dicta in Rosato and Smith, which were published only months before the dissolution judgment in the present case, indicated the court's intent to place limits on the concept of distributable marital property and its recognition that the question of whether unvested pension benefits constituted property had not been decided.
Insofar as the majority suggests that the defendant and the trial court should have anticipated the result in Bender because of the Appellate Court's earlier decision in Bender v. Bender, 60 Conn.App. 252, 758 A.2d 890 (2000), aff'd, 258 Conn. 733, 785 A.2d 197 (2001), the Appellate Court did not address whether unvested pension benefits constitute property, the issue was not certified to this court on appeal, and this court, which ultimately decided to address the issue, had not yet published its decision in May, 2001. Moreover, Bender involved a different factual situation than that in the present case because the vesting requirement in Bender was twenty-five years of service and the defendant had been employed for approximately nineteen years at the time of the parties' divorce. Id., at 253, 758 A.2d 890. Finally, this court never has characterized its decision in Bender as a mere “incremental [step]” in Connecticut's jurisprudential development that might have been anticipated. Footnote 29 of the majority opinion. Rather, this court stated in Bender that “the issue of whether unvested pension benefits are property subject to equitable distribution under § 46b–81 [was] one of first impression for this court....” (Emphasis added.) Bender v. Bender, supra, 258 Conn. at 743, 785 A.2d 197. Although there is language in Bender referring to a “common theme” running through our prior case law; id., at 748, 785 A.2d 197; the theme to which Bender referred consisted of the type of analysis employed, not to a series of similar holdings that would have predicted the outcome of this court's decision in Bender. Thus, although the court in prior cases had considered certain common factors in determining whether the interest in question constituted marital property, it was not possible to predict how the court would apply those factors in a future case to the unresolved question of whether unvested pension benefits constitute distributable marital property.
After discussing several recent decisions of this court, the court in Bender stated: “These cases reflect a common theme, namely, that in determining whether a certain interest is property subject to equitable distribution under § 46b–81, we look to whether a party's expectation of a benefit attached to that interest was too speculative to constitute divisible marital property.” Bender v. Bender, supra, 258 Conn. at 748, 785 A.2d 197.
The court in Bender also recognized that, despite the existence of a common theme, our prior case law could be interpreted in different ways, depending on the type of potential property interests at issue. See id., at 753, 785 A.2d 197. The court stated: “Where [the majority] and the dissent [in Bender ] part company is over the appropriate reading of our prior jurisprudence. We acknowledge ... that in some cases we have determined that certain interests constituted property where there were enforceable contract rights therein, while in others we have determined that certain interests were too speculative to constitute property where there were no such rights. We do not read those cases, however, as the dissent does, to mark out a hard and fast line requiring such rights as the sine qua non of ‘property’ under § 46b–81.” (Emphasis added.) Id. The court ultimately concluded: “ We believe that any uncertainty regarding vesting is more appropriately handled in the valuation and distribution stages, rather than in the classification stage.” (Emphasis added.) Id., at 749–50, 785 A.2d 197. Moreover, this was not a conclusion that necessarily could have been anticipated because, although it did not entirely eliminate consideration of whether an interest constitutes distributable property, it deemphasized the court's prior focus on that question and allowed consideration of the problem of uncertainty in the context of valuation and distribution.
I agree with the majority that the trial court in the present case improperly relied in part on my dissent in Bender; see Bender v. Bender, supra, 258 Conn. at 764, 785 A.2d 197 ( Zarella, J., dissenting); as a basis for its decision. The majority correctly observes that my dissent was “not an authoritative ruling to be applied by a lower court.” Footnote 29 of the majority opinion. Consequently, to the extent that the trial court relied on my dissent in Bender, I reject that portion of its analysis.
The court similarly acknowledged in a subsequent decision that, although its holding in Bender concerning unvested pension benefits represented a natural progression and expansion of the law, it also broke new ground. See Mickey v. Mickey, 292 Conn. 597, 625, 974 A.2d 641 (2009). In Mickey, we explained: “Our decision in Bender ... updated [the] traditional, fairly rigid dichotomy by establishing a more nuanced approach to defining property interests under § 46b–81. In Bender, this court built [on the] foundation of our prior cases in concluding that the unvested pension of the defendant in that case was property subject to equitable distribution.... Consistent with our time-honored approach, we reiterated that presently enforceable rights, based on either property or contract principles, are sufficient to cause property to be divisible. Where Bender broke new ground was in its recognition that such rights are not the sine qua non of property under § 46b–81.... In building on our prior cases, we expanded our notion of property under § 46b–81, recognizing that there is a spectrum of interests that do not fit comfortably into our traditional scheme and yet should be available in equity for courts to distribute.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Id. The majority quotes selectively from this passage to emphasize the portion that refers to the evolution and general continuity of Connecticut law in the area of marital property rights rather than the portion referring to the fact that Bender had recognized a new category of property interests that “do not fit comfortably into our traditional scheme....” Id.; see also Czarzasty v. Czarzasty, 101 Conn.App. 583, 594, 922 A.2d 272 (2007) (“[T]he court [in Bender ] seems to have recast the analysis used to determine whether an interest or benefit is property under § 46b–81 to a more probabilistic assessment untethered to the existence of a presently existing enforceable right. Consequently, since Bender, whether a party has a presently existing enforceable right to the present or future receipt of the asset appears no longer to be determinative. Instead, the determination of whether a claimed asset is subject to distribution pursuant to § 46b–81 appears to depend on the degree of certainty revealed by the evidence that the litigant will eventually receive the asset. In sum, in accordance with the dictates of Bender, in confronting property claims under § 46b–81, trial courts must make an assessment on a case-by-case basis of the likelihood of the person's receiving the asset claimed by his or her spouse. If the likelihood is not too speculative, then it is property subject to valuation and distribution.” [Emphasis added.] ), cert. denied, 284 Conn. 902, 931 A.2d 262 (2007). Thus, when the majority opines that the court's decision in Bender was predictable, or was an incremental step that should have been anticipated and reflected in the trial court's decision in the present case, it goes too far, and its conclusion is inconsistent with the conclusion in Mickey that Bender “expanded our notion of property under § 46b–81” in a way that could not have been foreseen by creating an entirely new category of inchoate interests available for consideration and possible distribution by Connecticut's trial courts. Mickey v. Mickey, supra, at 625, 974 A.2d 641. More importantly, the majority simply does not explain why the parties were required to predict what the future law would be and how this court would apply it in their particular case.
D
The majority finally relies on §§ 46b–66, 46b–81, and 46b–82 in concluding that, “even when an item is determined to be nondistributable, its existence nevertheless is a relevant consideration for a court adjudicating a dissolution action when it assesses the fairness of a settlement, distributes other property or fashions other financial orders.” I agree with the majority that a party's disclosure of the opportunity to acquire future capital assets and income under § 46b–81, which would have included the defendant's unvested pension benefit in 2001, generally is required so that the trial court can perform its statutory duty under § 46b–66 of determining whether a separation agreement is “fair and equitable under all the circumstances.” General Statutes (Rev. to 2001) § 46b–66. There are several difficulties, however, with applying this principle to the facts of the present case.
First, the trial court's statutory duty under § 46b–66 was not the legal theory on which the plaintiff's motion to open was based. The two grounds on which her motion was based were, first, that the defendant committed fraud by failing to disclose a benefit that was distributable marital property, thus causing her to rely to her detriment on a false representation of his assets and, second, that the defendant's alleged nondisclosure of the benefit was in violation of paragraph 13.11 of the parties' separation agreement. As previously discussed, the reason why the plaintiff relied on these grounds was because they enabled her to ask for relief in the form of the full value of the benefit, a lessened burden of proof, and attorney's fees and costs without reopening the entire judgment, which would not have been possible if she had based her motion on the ground that the trial court was unable to perform its statutory duty. The plaintiff thus vehemently objected to the trial court's determination in its first memorandum of decision that the defendant's unvested pension benefit was not a marital asset subject to distribution.
As evidence of her frustration, the plaintiff filed the very next day a motion for reargument, reconsideration and/or rehearing (motion for reconsideration) of the trial court's preliminary decision on the property issue. In her motion, she argued in relevant part that the trial court, in concluding that the unvested pension benefit was not marital property, had “developed a new rule that there was an obligation to disclose on financial affidavits and/or during discovery, even ‘putative assets' such as the [unvested pension benefit] ... and that the defendant's failure to disclose that ‘putative asset’ ... prevented the court from performing its judicial function under § 46b–66 ... thus exposing the judgment to being reopened if the nondisclosure was intentional and it would have affected the outcome of the case.” (Emphasis added.) The plaintiff added that the court was in effect stating that the nondisclosure of a putative asset such as the defendant's unvested pension benefit “constituted a fraud upon the court, and the opposing party,” and that the court's decision was improper because it represented “a departure from prior judicial precedent of the Connecticut Supreme Court interpreting § 46b–81....” These arguments were clearly motivated by the plaintiff's belief that the only way she could obtain 100 percent of the defendant's unvested pension benefit was to claim that the benefit constituted property and that the defendant's alleged nondisclosure constituted both fraud and a violation of paragraph 13.11 of the parties' separation agreement, which, as previously noted, provides that the full value of a property interest that has been intentionally misrepresented or concealed would be transferred to the nonconcealing party. In addition, because the plaintiff strongly disagreed, during the hearing on the motion for reconsideration, that the trial court should consider the issue of its statutory duty under § 46b–66, the court's ultimate conclusion that a decision on the fairness of the separation agreement would not have been affected by nondisclosure of the defendant's unvested pension benefit left her with no basis for an appeal on statutory grounds. In other words, the trial court's conclusion that disclosure of the benefit would not have affected its statutory duty was consistent with the plaintiff's claim in her motion for reconsideration that this was an inappropriate ground on which to justify the hearing on that motion. The plaintiff was therefore not aggrieved by the trial court's decision on the issue of its statutory duty and cannot use it as a basis for an appeal. See, e.g., Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 95 n. 2, 84 A.3d 828 (2014) (aggrievement is essential prerequisite to appellate jurisdiction).
In addition to the fact that the trial court raised the issue of its statutory duty under § 46b–66 sua sponte and that the plaintiff is not aggrieved by the court's decision on that issue, the majority's conclusion that the judgment should be opened is undermined by the court's factual finding that the defendant disclosed the benefit to the plaintiff. See part III of this opinion. Accordingly, in light of the trial court's finding and the apparent lack of any contrary authority, the defendant had no greater obligation than the plaintiff to disclose the benefit to the court.
I finally note the well established principle that a reviewing court may reframe a question raised on appeal to more accurately reflect the issue presented. See, e.g., State v. Thompson, 307 Conn. 567, 570 n. 3, 57 A.3d 323 (2012). In the present case, however, the trial court and the majority have changed the issue presented in the plaintiff's motion to open and have disregarded the plaintiff's theory of the case. Furthermore, the fraud claim cannot remain in the case on the ground that the defendant's financial affidavit defrauded the court because “the concept of fraud on the court [in the marital litigation context] is properly limited to cases [in which] both parties join to conceal material information from the trial court.” (Emphasis added.) Billington v. Billington, supra, 220 Conn. at 222, 595 A.2d 1377. I therefore disagree with the majority that the trial court should have granted the plaintiff's motion to open the judgment under the principles set forth in Billington, Thompson, Bender, or the relevant statutes pertaining to the trial court's financial orders.
III
I next address the majority's conclusions regarding the fraud issue. In addition to the fact that the second hearing on the motion to open was unnecessary following the trial court's determination in the first hearing that the defendant's unvested pension benefit did not constitute property, a continued hearing was improper because all of the testimony and evidence offered at the second hearing pertained to whether the defendant had disclosed the benefit to the plaintiff, rather than to whether he had disclosed the benefit to the court so that it could perform its statutory duties under § 46b66. The majority nonetheless fails to acknowledge this disconnect between the trial court's conclusion in the first hearing and the testimony and evidence in the second hearing, which would have been relevant only if the court had determined that the benefit constituted property. The majority instead concludes that the trial court abused its discretion during the second hearing because it precluded relevant evidence regarding the value of the benefit. The majority further concludes that the trial court, in determining that the defendant disclosed the benefit to the plaintiff, relied largely on its assessment of the parties' credibility, which could have been affected by evidence of the benefit's value. The majority thus speculates that, “[i]f ... the trial court [had] determined, on the basis of a complete evidentiary record, that the pension had considerable worth ... that determination could have severely undermined the court's finding that the plaintiff had full knowledge of the pension, yet simply chose not to pursue any interest in it or some alternative compensation for relinquishing any such interest. Similarly, a finding of substantial value may well have changed the trial court's assessment of the defendant's account of full and frank disclosure to the plaintiff....” (Citation omitted.) Text accompanying footnote 36 of the majority opinion. The majority further claims that, if the proffered testimony of the plaintiff's expert on the value of the unvested pension benefit had been admitted and credited by the court, it might have treated the benefit as distributable marital property, thus affecting the financial orders and the outcome of the case. I disagree.
I readily agree that disclosure of an unvested pension benefit on a financial affidavit is required after Bender because we determined in that case that unvested pension benefits constitute property subject to equitable distribution.
“Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed.... The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; 3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment.... A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud .... A court's determinations as to the elements of fraud are findings of fact that we will not disturb unless they are clearly erroneous....
“There are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there [must be] a substantial likelihood that the result of the new trial will be different.” (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. at 685, 882 A.2d 53.
The following additional facts are relevant to a resolution of this claim. At the conclusion of its memorandum of decision on the property issue, the trial court ordered the parties to attend a status conference so that the remaining issues could be explored and a new date could be set for a hearing to determine whether the defendant's alleged failure to disclose the unvested pension benefit “was fraudulent, wilful and without just cause and, if so, whether or not the outcome of the original judgment would have been materially changed had the disclosures been made.”
In preparation for the hearing, the defendant notified the court in a disclosure statement dated October 15, 2008, that he would call Mark S. Campbell to testify as an expert witness regarding the present value of the unvested pension benefit on the date of dissolution. On November 21, 2008, the plaintiff notified the court in two disclosure statements that she also would call Campbell, in addition to her own expert witness, William Miller, to testify regarding the present value of the benefit. The plaintiff's disclosure statement pertaining to Campbell indicated that she agreed with his conclusion that the defendant had an interest in an unvested pension benefit for which a present value could be determined but that she rejected and disputed the discount rate Campbell had applied to calculate this value, which he had determined was at least $17,000 on the date of dissolution. More specifically, Campbell's present value calculations assumed a discount rate equal to the twenty year treasury bond rate as of the valuation date, which was 6.04 percent per annum, plus a “[s]pecific qualitative risk” discount factor of 15 percent per annum, for a total discount rate of 21.04 percent. The 15 percent discount rate was based on several factors Campbell determined could have a potentially negative effect on the present value calculation, including (1) the unfunded nature of the pension plan, (2) the defendant's unvested interest in the plan at the time of dissolution, (3) the contingent nature of the plan, which depended on the defendant's company continuing as a going concern and maintaining its ability to fund the plan from its current earnings, and (4) the ability of the company to discontinue or otherwise alter the plan at any time. In her disclosure statement pertaining to Miller, the plaintiff indicated he would testify that the present value of the benefit on the date of the dissolution was $1,079,451 under the “proper” discount rate, assuming the defendant retired at the age of fifty-five. Although Miller was expected to testify that Campbell's use of the 15 percent discount rate was “not appropriate,” and that he did not consider the risks and uncertainties on which this discount rate was based in his own present value calculation, Miller acknowledged many of the same uncertainties identified by Campbell, as well as several others. For example, Miller noted in his report, which was attached as an exhibit to the disclosure statement, that the pension plan was unfunded and would be directly affected by the ongoing financial health of the company, the defendant was not eligible for any benefit payment on the date of dissolution, the defendant would forfeit the benefit if he terminated his employment with the company before the early retirement age of fifty, and the present value of the benefit could vary significantly depending on the age at which the defendant retired. Miller nonetheless indicated that, in calculating the present value of the benefit, he did not take these uncertainties into account but “based [his calculation on] the terms and conditions of the plan ... as set forth in the expanded retirement benefit projection reports available to [the company] ... and the defendant's dates of service, years of service as a partner and his earnings.” Miller also assumed that the defendant would retire at the age of fifty-five, thus allowing him to conclude that the present value of the benefit was $1,079,451, which was 56 percent higher than the benefit's present value of $693,663 if the defendant retired at the age of sixty, the normal retirement age for company employees and the age used in the company's own formula for calculating the value of employee benefits under its pension plan.
Thus, the payment of pension benefits was subject to the general revenues of the defendant's company.
As of the date of dissolution, the defendant was not eligible for the pension benefit because he was only forty-five years old, and an early retirement benefit was not available until a partner was at least fifty years old. If the defendant had terminated his employment prior to the early retirement age of fifty, he would have forfeited the benefit.
To the extent the majority refers to a present value of $3,839,117 in its statement of facts and elsewhere in its opinion; see, e.g., footnote 32 of the majority opinion; it is not relevant to the current analysis, and neither the plaintiff nor the defendant suggests that this was the present value of the pension. The $3.8 million valuation was contained in the company's standard projection report, was derived from certain default assumptions that were not necessarily appropriate in the defendant's case, and, as the majority acknowledges, “[t]he projection report did not take into account the contingencies to which the defendant's ultimate receipt of the pension was subject ... nor did it specify which portion of the present value was attributable to services that were yet to be rendered, postdissolution.” Id.
On November 25, 2008, the trial court considered whether to admit the proposed testimony and concluded that any evidence regarding value was “just not relevant.” The court reiterated, upon further reflection, that “the proffer of any evidence with regard to valuation, at this stage, would ... not be material, [would not] be relevant....” The following day, when the parties raised the matter again, the trial court repeated that it did not believe the valuation testimony was relevant or material to the issue of fraud in the second hearing. See footnote 21 of this opinion (further explaining procedural history of proceedings on admission of expert testimony).
After the hearing, the trial court issued its second memorandum of decision on the plaintiff's motion to reopen. The court concluded that the plaintiff had not clearly proven fraud because either she or her attorney had been apprised of the unvested pension benefit both before and during the dissolution proceedings. In referring to the factual predicate for its conclusion, the trial court explained as follows: “During [the second hearing], the court heard from the [defendant] regarding his knowledge of the salient aspects of his [company], including income and retirement. He testified that he and [the plaintiff], a [certified public accountant] and former [company] employee from 1984 through 1991, frequently discussed these subjects. In particular, he told the court that, although the general terms of the [unvested pension benefit] were known to the [company] partners, they were not committed to writing until 2002. In response to partner inquiries, a template allowing the employee to input data, including salary and longevity, was made available to the employees on their work computers on or about April, 2000, which allowed them to project an estimate of the future benefit. The [defendant] said that he did not access his computer at that time for that purpose.
“Later, during the [dissolution] proceedings, he discussed this potential benefit with his attorney, and they made an affirmative decision not to list the [unvested pension benefit] on the financial affidavit, as it was not funded, vested, or accrued at that time. Still later, he testified that the [unvested pension benefit], along with other topics, including the potential future sale of [the consulting arm of the company], came up during a settlement conference at the office of the [plaintiff's] attorney, Anthony Piazza, at which was also present the [plaintiff's] expert, Mark Harrison, who had been hired to value the [defendant's] benefits. The [defendant] has consistently maintained this position throughout the proceedings, and the court concluded that this position was accepted by the [plaintiff] and those representing her. The [defendant's] counsel, Christopher Burdett, confirmed his client's account. The [plaintiff's] attorney did not deny that the meeting took place but denied that the subject of the [unvested pension benefit] came up at that time.... Harrison did not deny that he was present at the meeting; however, [he] told the court that, at that time, he was aware that [the company] had [an unvested pension benefit], but he could not say for sure ... now eight years later ... what the source of his knowledge was, since he had also been hired as an expert by another [company employee's] spouse at the same time.... [T]he [plaintiff] testified consistently that she had no knowledge of the [unvested pension benefit] up to that point. The [defendant] and his counsel continued to take the position that the [unvested pension benefit] was not an asset, and, therefore, they elected not to ... note it [in] the [defendant's] financial affidavit....
“The next disputed incident took place during final negotiations at the courthouse on May 25, 2001, the day set for trial. Present were the [plaintiff], Attorney Piazza, his associate, Laura Simmons, and ... Harrison. The [defendant] was there along with Attorney Burdett, as well as a coworker, [Anthony] Artabane. The parties and witnesses all agree that the negotiations took place all day at the courthouse, culminating in an agreement and a hearing before [the court] late in the afternoon, at which time the court approved the agreement and dissolved the marriage. It is also undisputed that some clauses were reworked and typed at Attorney Piazza's office that same day, and that some changes were simply inserted by hand and initialed. From that point on, the stories diverge. The [defendant] testified that the subject of the [unvested pension benefit] came up during the day, in the absence of his attorney, during a discussion between himself, [the plaintiff], and her counsel, Attorneys Burdett and Simmons being at [Attorney] Piazza's office to have some changes to the agreement typed. Again, the [plaintiff] and her attorney dispute this claim. However, it is supported by ... Artabane, who was present in court that day and was within earshot of that discussion. [Artabane] testified that he joined that discussion to corroborate the position taken by the [defendant] regarding the [unvested pension benefit]. One specific change to the agreement, which the court found significant, was the insertion of the word ‘vested’ in ... paragraph 13.11 [of the separation agreement], which ... called for penalties in the event of a party's failure to disclose a vested asset.
“On balance, the court believes that the [defendant's] version of events is more credible. The court found both parties to be intelligent and articulate, and the fact that both are [certified public accountants] and familiar with numbers and complex financial matters lends further credence to the [defendant's] argument. Furthermore, the court does not believe that the subject of the [unvested pension benefit] did not come up between [the defendant] and [the plaintiff] at any time during their marriage, in particular, within the context of the salient aspects of the [defendant's] partnership, including retirement benefits, or in the lengthy merger negotiations with [another company], and, in particular, regarding the preservation of existing and potential partner benefits, like the [unvested pension benefit]. Certainly, the aspirational expectations of both spouses were shared from time to time during the marriage, if only in the form of pillow talk. In point of fact, the [plaintiff] herself told the court that, during their marriage, she and [the defendant] discussed four broad, work-related subjects, to wit: (1) office politics; (2) benefits; (3) finances and compensation; and (4) partnership. The court believes that the testimony and evidence supports a finding that the [plaintiff] knew about the [unvested pension benefit] at the time of the dissolution of marriage in 2001 and that she now wishes to change the bargain she reached with the advice of counsel and her expert.” (Emphasis omitted; internal quotation marks omitted.)
Thereafter, the trial court determined that the unvested pension benefit did not constitute property because of the reasons set forth in its earlier memorandum of decision. The court also explained that, in considering whether the separation agreement was fair and equitable within the meaning of § 46b–66, “a court bases its consideration of fairness upon the financial affidavits of the parties; that the better practice would be to call the court's attention to an item of potential financial significance by way of a footnote on said affidavit; that, under all the facts and circumstances, the [defendant's] failure to list [the] same on his financial affidavit was not fraudulent, and, in any event, would not likely have changed the outcome of the court's finding of fairness.” The court further concluded “[t]hat the testimony and evidence supports a finding that, while the [defendant] did not disclose the existence of the [unvested pension benefit] on his financial affidavit, at least as late as the final negotiations that took place at the courthouse on May 25, 2001, the [plaintiff] and her counsel knew about the [unvested pension benefit], that the [defendant] did disclose [the] same in the context of negotiations leading up to the execution of a written [separation] agreement, as evidenced in part by the written amendments to said agreement, and that fact is amply supported by the testimony of the [defendant] and his witnesses.”
On the basis of these factual findings, the trial court concluded that “[t]he [plaintiff] has failed to meet her burden in that there was no clear proof of fraud; to the contrary, the court found sufficient evidence to support a finding that the existence of the [unvested pension benefit] was disclosed to the [plaintiff] and her counsel during the settlement negotiations and prior to the entry of the decree.” The court further concluded that, although “[i]n a matrimonial action, financial affidavits play an important role, and there is a need for full and fair disclosure ... [u]nder all the facts and circumstances, there was insufficient evidence presented to the court to demonstrate that, in the event of a new trial, there was a likelihood of a different result.” (Citation omitted.) I agree with the trial court's conclusions because they are based on factual findings, supported by documentary and testimonial evidence from the defendant and several other witnesses, that the defendant disclosed the unvested pension benefit to the plaintiff during the settlement negotiations.
Nevertheless, instead of addressing the trial court's findings and conclusions directly to determine whether they were clearly erroneous; see, e.g., Nyenhuis v. Metropolitan District Commission, 300 Conn. 708, 729, 22 A.3d 1181 (2011) (trial court's findings of fact subject to clearly erroneous standard of review); the majority attempts to avoid this requirement by taking a more circuitous path, claiming that the trial court abused its discretion by improperly precluding the evidence proffered by the plaintiff through her expert witness concerning the value of the defendant's unvested pension benefit. It is therefore necessary to consider the law on evidence.
The majority states that it does not consider whether the trial court's factual finding that the pension was disclosed was clearly erroneous because “the plaintiff has not made that argument....” Footnote 38 of the majority opinion. The majority, however, fails to understand the rules of practice that legitimize such claims. Practice Book § 67–4(d) provides that each argument in the appellant's brief “shall include a separate, brief statement of the standard of review the appellant believes should be applied.” Practice Book § 67–5(d) similarly provides that each argument in the appellee's brief “shall include a separate, brief statement of the standard of review the appellee believes should be applied.” Thus, by requiring the parties to articulate the applicable standard of review, our rules of practice open the door for disagreement and mandate a decision by the reviewing court explaining its reasons for selecting the standard of review that it ultimately applies to resolve the issue. Moreover, this has been the practice of Connecticut's reviewing courts for a very long time. See, e.g., State v. Coccomo, 302 Conn. 664, 671 and n. 2, 31 A.3d 1012 (2011) (rejecting defendant's argument that standard of review should be de novo); Perez v. Minore, 147 Conn.App. 704, 709, 84 A.3d 460 (2014) (acknowledging plaintiffs' argument that standard of review should be plenary but agreeing with defendant that proper standard of review was abuse of discretion); Brye v. State, 147 Conn.App. 173, 177, 81 A.3d 1198 (2013) (acknowledging state's argument that standard of review should be abuse of discretion but agreeing with plaintiff that proper standard of review was plenary). Accordingly, given that the defendant in the present case devoted four pages of his appellate brief to disputing the plaintiff's assertion that all of her claims of error were subject to plenary review and contending that this court should review the trial court's factual findings to determine whether they were clearly erroneous, the majority must address the defendant's argument and explain why it is unpersuasive.
“It is well settled that the trial court's evidentiary rulings are entitled to great deference.... The trial court is given broad latitude in ruling on the admissibility of evidence, and [the reviewing court] will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.... [Thus, the court's] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did....
“The law defining the relevance of evidence is also well settled. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.... [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Citations omitted; internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 679–80, 830 A.2d 193 (2003).
The majority claims that the trial court decided the issue of fraud “largely on the basis of its assessment of the parties' credibility,” and that the expert testimony concerning the value of the unvested pension benefit was relevant to the trial court's assessments of the defendant's credibility and to show that the outcome of a new trial probably would have been different if the testimony had been allowed. I disagree.
The majority specifically claims that, “[i]f ... the trial court [had] determined, on the basis of a complete evidentiary record, that the pension had considerable worth ... that determination could have severely undermined the court's finding that the plaintiff had full knowledge of the pension, yet simply chose not to pursue any interest in it or some alternative compensation for relinquishing any such interest. Similarly, a finding of substantial value may well have changed the trial court's assessment of the defendant's account of full and frank disclosure to the plaintiff, namely, disclosure not only of the pension's existence, but of all its salient features, including its value.” (Citation omitted; emphasis in original.) Text accompanying footnote 36 of the majority opinion.
The majority considers and decides this issue because it was raised by the plaintiff as a minor argument in her brief to this court. The record makes clear, however, that the plaintiff did not offer the expert testimony of Campbell or Miller for the purpose of impeaching the defendant's testimony regarding his disclosure of the benefit to the plaintiff but, rather, to provide substantive evidence of the benefit's value in support of her motion for reconsideration of the trial court's prior ruling that the benefit constituted property. The issue of the defendant's credibility was never raised in the disclosure statements, which were filed several days before the trial court's hearing on the matter, nor was it raised during the hearing itself. After the trial court expressly concluded on two successive days that expert testimony on the value of the pension benefit was “not relevant” or material to the issue of fraud because the benefit did not constitute property, neither party made any further argument as to why the testimony should be heard. If the plaintiff had intended to offer the testimony for the purpose of impeaching the defendant's credibility, she could have made that argument to the court. Because she failed to do so, the court was unable to consider it. It is well established that this court will not consider a claim not raised at trial. See, e.g., River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 82, 848 A.2d 395 (2004). “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling ... is well settled. This court is not bound to consider claims of law not made at the trial.... In order to preserve an evidentiary ruling for review, trial counsel must object properly.... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.... Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted....
The majority defends its conclusion that the expert testimony should have been admitted on the ground that it was relevant to the trial court's determination of the defendant's credibility, even though neither party raised that claim, because “[t]he trial court ... did not even wait for the plaintiff to offer the evidence, or for the defendant to object to it, before ruling, sua sponte, that no evidence of value would be admitted, although both parties had prepared such evidence and intended to present it. In the highly unusual circumstances of this case, [in which] the trial court imposed its own theoretical framework on the litigation, unexpectedly altered that framework midstream and, then, proactively ruled on evidentiary objections that had not been made, we decline to penalize the plaintiff for not making a textbook objection to the trial court's sua sponte ruling. Because ... valuation evidence clearly was relevant to both the elements of fraud and the factors governing a motion to open on the basis of fraud, the trial court's ruling likely invoked confusion.” (Emphasis in original.) Footnote 35 of the majority opinion. In other words, the majority concludes that it may decide whether the expert testimony was relevant on a ground that the parties never raised because the trial court allegedly prevented them from fully explaining their arguments or objections prior to its sua sponte ruling to exclude the testimony. The majority thus suggests that the plaintiff would have argued that the testimony might have affected the trial court's credibility determination if she had been given the opportunity to present it. I strongly disagree with this conclusion because it is based on mere speculation and a complete misunderstanding of the record.
The trial court's sua sponte ruling was not made before the parties explained why they wanted to offer the expert testimony, the ruling did not proactively cut off potential evidentiary objections by either party, and it did not invoke confusion. Rather, the ruling came near the end of a series of filings and discussions over the course of several weeks, during which both parties had ample time to explain their views to the court regarding why they believed the expert testimony was necessary. Accordingly, the court's sua sponte ruling, and its three other rulings relating to the proffered testimony, were well understood and accepted by the parties.
The subject of expert testimony initially arose following the trial court's issuance of its memorandum of decision on June 10, 2008, in which it concluded that the defendant's unvested pension benefit did not constitute property subject to distribution. At a July 3, 2008 hearing intended to clarify the issues to be considered during the phase two hearing, on the issue of fraud, the court stated that it did not know if expert witnesses would be required but that, if the parties believed they were, the court would need to hear why.
The subject next was raised on October 15, 2008, when the defendant filed a notice disclosing his intention to call Campbell as an expert witness. The defendant provided the plaintiff with a copy of Campbell's report, which contained information regarding the professional accounting standards in effect at that time and an estimate of the present value of the defendant's unvested pension benefit as of the date of dissolution. On October 17, 2008, the plaintiff filed a motion to preclude Campbell's testimony on the ground that she was prejudiced because the disclosure was late, and, therefore, she would not have sufficient time to depose Campbell or retain her own expert to evaluate Campbell's report before the start of the phase two hearing. She also argued that the defendant appeared to be trying to relitigate the effect of the professional accounting standards on his obligation to disclose the pension benefit to the plaintiff, an issue the court already had decided during the phase one hearing, and that the defendant was attempting to offer evidence on another subject the court also previously had decided, namely, his legal obligation to disclose the benefit in his financial affidavits.
At a hearing on October 29, 2008, the trial court denied the motion. After counsel explained the plaintiff's reasons for seeking to preclude Campbell's testimony, the court determined that the testimony would be germane to the financial orders and that the defendant should be allowed to present it. The court also determined that Campbell should be allowed to testify regarding the applicability of the professional accounting standards to the defendant's personal life, thus potentially shedding light on his state of mind and his reasons for preparing the financial affidavits as he did.
On November 21, 2008, the plaintiff filed two notices with the court disclosing her intention to call Campbell and Miller as expert witnesses in her case. On November 24, 2008, she also filed a motion for reconsideration of the trial court's phase one ruling that the defendant's unvested pension benefit constituted property. The plaintiff argued that the fact that the defendant, through Campbell, had ascribed a present value to his accrued benefit at the time of dissolution was a significant new consideration that the court should weigh along with a reexamination of its decision that the benefit constituted property. The plaintiff's counsel reiterated in a hearing on the motion for reconsideration that, if the court had known that the benefit had value, it might have decided the property issue differently. The defendant's counsel objected, arguing that it was too late to reconsider the court's phase one decision. The defendant's counsel also noted that the court had been apprised, before its phase one ruling, of the fact that the pension benefit may have had value when the plaintiff's expert, Miller, had been allowed to testify that the benefit had an undiscounted present value of $3.8 million and a discounted present value of $400,000. The defendant's counsel further challenged the plaintiff's theory that ascribing a value to the benefit meant that the benefit constituted property subject to distribution.
The hearing on the motion for reconsideration continued the following day, at which time the defendant's counsel again argued that the plaintiff's request for reconsideration of the trial court's phase one ruling was improper and that, contrary to the plaintiff's claim, the fact that the benefit had value did not mean that it constituted property. The defendant's counsel thus contended that, to reconsider and open the judgment under the second prong of Krafick, which required the court to consider the value of the benefit following a first prong determination that the benefit constituted property, would not comply with the Krafick model. The plaintiff's counsel responded that there would have been no reason for the defendant to offer evidence through Campbell of the benefit's present value if it did not constitute property.
The trial court then reflected that, from its perspective, the defendant's counsel had been arguing that Campbell's testimony went to the defendant's mental state, apparently meaning Campbell's expected testimony regarding the applicability of the professional accounting standards to the defendant's personal life. Thus, to the extent the testimony was about the benefit's present value, such testimony was irrelevant. The trial court explained that, after the decision in Bender, this court seemed to have no problem skipping step one and going directly to step two of the Krafick analysis, on valuation, thus “boot-strapping” the concept of property onto the concept of valuation by concluding that “if there's value, then it must be property.” The court reminded the parties, however, that it was required to apply pre- Bender law, and that, to be consistent with the line of pre- Bender authority, the valuation of a benefit was not relevant to a determination of whether it constituted property. The plaintiff's counsel responded that he still had to proffer the testimony of Miller, his expert witness, for the purpose of establishing a proper record, and the trial court stated that it understood the need to do so. After additional pondering regarding the effect of valuation on the concept of property, the court stated: “So, from your standpoint, [defense counsel], I would sua sponte rule that the proffer of any evidence with regard to valuation, at this stage, would ... not be material, [would not] be relevant....” The court added a few minutes later that it was denying the plaintiff's motion for reconsideration because it did not believe that valuation played a role with respect to the unvested pension benefit. The plaintiff's attorney made no further comments regarding that ruling.
The next day's hearing began with a statement by the plaintiff's attorney, who acknowledged the trial court's ruling the previous day but sought to make an offer of proof as to the testimony of Campbell and Miller to “protect the record....” He stated that the two expert witnesses, who were present in the courtroom that day, were prepared to testify in accordance with the disclosure statements he previously had filed with the court. The defendant's counsel moved to preclude the testimony based on the offer of proof because the trial court's ruling on the motion for reconsideration the preceding day had made very clear that the court “would not consider evidence of value at this stage of the phase two hearing, and, in accordance with [the court's] previous ruling, [the defendant's counsel] would ask for a motion to preclude both witnesses, and ... that satisfies [the plaintiff's counsel's] need to protect the record based on his offer.” The trial court responded that its sua sponte ruling was intended to reverse its earlier ruling denying the plaintiff's motion to preclude Campbell's testimony on behalf of the defendant. The court explained: “I have since had time to reflect upon this and, in considering the evidence I have to date, and considering the case law as I understand it, I don't believe that valuation testimony is relevant or material to the issue we have in this particular phase. So, for that reason, I am precluding [Campbell, the defendant's] witness. I indicated that I took it upon my shoulders on [that] one. I indicated that was ... sua sponte....” The defendant's attorney then renewed his motion to preclude the testimony of the plaintiff's expert witness, Miller, based on the trial court's decision regarding the testimony of the defendant's own expert witness, Campbell. Although the trial court made no further ruling, the plaintiff's attorney indicated his acceptance of the court's decision to preclude the testimony, apparently by virtue of the court's ruling on the motion for reconsideration and its ruling on the defendant's expert witness, and asked that the disclosure offer function as the plaintiff's proffer for purposes of clarifying the record.
At no time during the six weeks that the parties and the trial court discussed the issue of expert testimony did either party argue, or even remotely suggest, that the testimony was proffered for the purpose of assisting the court in making credibility determinations. Furthermore, none of the trial court's rulings precluded the plaintiff's attorney from making that argument. Accordingly, the majority's conclusions with respect to this matter are unsupported by the record.
“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act.... Assigning error to a court's evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Johnson, 289 Conn. 437, 460–61, 958 A.2d 713 (2008); see also Council v. Commissioner of Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008) (“[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one.... For this court to ... consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” [Internal quotation marks omitted.] ). “Thus, because the sina qua non of preservation is fair notice to the trial court; see, e.g., State v. Ross, 269 Conn. 213, 335–36, 849 A.2d 648 (2004) (the essence of the preservation requirement is that fair notice be given to the trial court of the party's view of the governing law ...); the determination of whether a claim has been properly preserved will depend on a careful review of the record to ascertain whether the claim on appeal was articulated below with sufficient clarity to place the trial court on reasonable notice of that very same claim.” (Emphasis in original; internal quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753–54, 66 A.3d 869 (2013). Accordingly, the plaintiff improperly raised this unpreserved claim on appeal, and the majority has improperly decided it.
Even if this claim had been properly preserved for impeachment purposes, Miller's proffered testimony regarding the present value of the defendant's unvested pension benefit on the date of dissolution was inadmissible. Miller failed to consider the risk factors that Campbell had used to justify a 15 percent discount rate in calculating the present value and that Miller himself had identified in his report as risks but did not include in his calculation. For example, Miller noted that the plan was unfunded, the benefit was unvested on the date of dissolution, the benefit would be affected by the defendant's company's financial health, and the defendant would forfeit the benefit if he terminated his employment with the company before the age of fifty. Despite acknowledging these uncertainties, however, Miller treated the defendant's unvested pension benefit for all intents and purposes as vested, accrued, payable from a pension account with sufficient funding, and without any cap, when in fact the benefit was wholly unfunded, only partially accrued, to be paid out of future company earnings, and limited by a cap based on those earnings. Accordingly, because Miller omitted from his calculation any consideration whatsoever of the risks and uncertainties that both he and Campbell had identified, his determination regarding the benefit's present value was grossly deficient and thus inadmissible, especially under Bender. See Bender v. Bender, supra, 258 Conn. at 749–50, 785 A.2d 197 (uncertainties and contingencies to be considered in valuation of property interests). Indeed, I find it highly ironic that Campbell conducted what amounted to a Bender valuation of the defendant's unvested pension plan, whereas Miller conducted a valuation analysis completely inconsistent with Bender because his calculation did not take into account the contingencies that he had identified. I thus disagree with the majority's claim that the trial court would have accepted Miller's calculation, would not have found the separation agreement to be fair and equitable, and would not have found the defendant's testimony to be credible if Miller had been allowed to testify that the unvested pension benefit had a present value of $1,079,451.
I add that, to the extent the majority claims that my critique of Miller's proposed testimony is unwarranted and that I am “essentially ... finding facts”; footnote 37 of the majority opinion; it is the majority that raises the issue of the validity and relevance of Miller's testimony by declaring that, “[i]f ... the trial court [had] determined, on the basis of a complete evidentiary record, that the pension had considerable worth ... that determination could have severely undermined the court's finding that the plaintiff had full knowledge of the pension, yet simply chose not to pursue any interest in it or some alternative compensation for relinquishing any such interest. Similarly, a finding of substantial value may well have changed the trial court's assessment of the defendant's account of full and frank disclosure to the plaintiff, namely, disclosure not only of the pension's existence, but of all its salient features, including its value.” (Citation omitted; emphasis in original.) Text accompanying footnote 36 of the majority opinion. Not only does this passage clearly presume the validity of Miller's calculations, but it includes a citation to a prior footnote explaining that Miller would have testified that the present value of the defendant's unvested pension benefit as of the date of dissolution was “in excess of $1 million.” Footnote 34 of the majority opinion. It is therefore the majority that makes an issue of the validity and relevance of Miller's testimony, to which I merely respond.
Nevertheless, even if the expert testimony was relevant to the issue of the defendant's credibility, the trial court's decision to exclude it was not harmful error. “The harmless error standard in a civil case is whether the improper ruling would likely affect the result.... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007).
There is no support for the majority's conclusion that the expert testimony might have affected the outcome of the hearing because the trial court did not decide whether the defendant committed fraud “largely on the basis of its assessment of the parties' credibility,” and, more particularly, the defendant's credibility. The defendant's testimony that he had disclosed information to the plaintiff regarding the unvested pension benefit was only one of many factors, including the plaintiff's testimony, that the trial court considered in concluding that the plaintiff or her attorney had knowledge of the benefit. Among these other factors were (1) testimony by the defendant's attorney that the benefit was mentioned during a predissolution settlement conference at the office of the plaintiff's attorney, (2) testimony by one of the defendant's coworkers that he overheard a conversation between the defendant, the plaintiff, and the plaintiff's attorney during the final settlement negotiations at the courthouse on the date of dissolution, at which time the unvested pension benefit was mentioned and that he joined in the discussion to confirm the defendant's position with respect to the benefit, (3) insertion of the word “vested” by way of a handwritten amendment to paragraph 13.11 of the parties' separation agreement, which pertained to the penalties that would be imposed in the event that a party failed to disclose a property interest, thus indicating an explicit understanding by both the parties and their attorneys that unvested pension benefits were not covered by the provision, (4) the formidable penalties set forth in paragraph 13.11 of the separation agreement for a party's failure to disclose a vested benefit, (5) the plaintiff's testimony that she was a certified public accountant and therefore familiar with numbers and complex financial matters, and (6) the plaintiff's testimony that, during their marriage, she discussed, inter alia, benefits, finances, compensation and partnership matters with the defendant. Moreover, given that the defendant would have lost the entire value of the benefit if he intentionally failed to disclose it to the plaintiff, he had no incentive to hide it and every reason to disclose it, a fact that was not likely to have eluded the trial court. Accordingly, because a finding of fraud requires “clear proof” of fraud, the defendant's testimony was not dispositive but only one of many factors that the court considered in reaching its conclusion that the plaintiff had failed to meet her burden of proving that the defendant committed fraud.
For the foregoing reasons, I respectfully dissent from parts I and II of the majority opinion.
* * *
“(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party ... shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
Hereinafter, all references to § 46b–81 are to the 2001 revision.