Champagne v. Champagne , 54 Conn. App. 321 ( 1999 )

Opinion

SPALLONE, J.

The plaintiff, Marla Champagne, appeals from the postdissolution judgment of the trial court holding that the investment strategy of the current trustee was prudent under the very “conflicted circumstances” in which the trustee was operating. The plaintiff claims that the trial court improperly determined the amount of appreciation that the education trust would have realized had it been invested prudently since the date the separation agreement was executed, and improperly concluded that the “conflicting circumstances” should have any bearing on the reasonableness or prudence of the investment strategies. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The parties, the plaintiff and the defendant, Rene Champagne, were married on September 3,1977, and their marriage was dissolved on January 4, 1993. At the time of the dissolution, the parties had four minor children.

The judgment of dissolution incorporated paragraph 11.4 of the parties’ separation agreement, which provided for a trust for the benefit of the minor children. The trust was to be funded by the cash value of the defendant’s life insurance policy. Paragraph 11.4 provided as follows: “The husband owns a life insurance policy with the Guardian Insurance Company, in the face amount of $500,000, with a cash value of approximately $60,000, which funds shall be placed in trust for the benefit of the children, to be used for their education, with Philip DeCaprio as trustee.”

At that time, the plaintiff was cotrustee of the defendant’s life insurance policy. On September 13, 1995, and October 18, 1995, the trial court heard the parties postjudgment motions relative to the plaintiffs claim that the defendant was in contempt for his failure to place the funds in trust as ordered and the defendant’s claim that the plaintiff was in contempt for her refusal as cotrustee of the life insurance policy to release the cash value to DeCaprio to be invested in the trust.

Neither party was found to be in contempt, and the plaintiff was ordered to resign as cotrustee of the insurance policy. The trial court determined that the amount of $129,552.31 should be placed in trust. The defendant appealed to this court, and the plaintiff cross appealed.

On December 24, 1996, this court reversed the trial court’s decision, in part, and remanded the case for further proceedings. Champagne v. Champagne, 43 Conn. App. 844, 685 A.2d 1153 (1996). The case was remanded with instruction that the trial court hold “a hearing to determine the amount of growth the policy’s cash value, as it existed on the date the separation agreement was executed, would have generated had it been prudently invested . . . .” Id., 850.

On June 12,1997, the trial court conducted an evidentiary hearing to decide the issue on remand. After a full hearing where experts testified as to what amount of growth the cash value would have generated if the fund had been invested prudently, the trial court determined that the amount transferred to the trustee in May, 1996, to be the principal sum plus the growth that occurred to those funds while invested through the Guardian Insurance Company life insurance policy. The trial court determined that this sum was $80,508 and that this sum represented a prudent and reasonable return on the original corpus of the trust.

The trial court heard conflicting testimony as to what constituted a prudent investment of the fund. It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony. State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967).

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 173-74, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).

Here, the trial court properly decided, on the basis of the evidence before it, that the sequestering in May, 1996, of $80,508 with the trustee was the proper amount to fund the trust at that point in time and properly represented the amount of growth generated from a prudent investment of the fund. We will not intervene.

Further, we hold that the trial court was correct in considering the “conflicted circumstances” of this case in its determination of a reasonable and prudent investment standard for the trust. The evidence clearly demonstrates that the parties did not operate in a climate free of acrimony, that the plaintiff refused to release funds until ordered to do so by the trial court and that the plaintiff attempted to remove the trustee. Such behavior on the part of the plaintiff was a factor to be considered by the court in determining whether the trustee acted prudently.

“Whether the trustee is prudent in the doing of an act depends upon the circumstances as they reasonably appear to him at the time when he does the act and not at some subsequent time when his conduct is called in question.” 1 Restatement (Second), Trusts § 174, comment (b), p. 379 (1959). In this case, there were many facts known to the trustee that comprised the “conflicted circumstances” of this case, and the trustee acted prudently within the framework of those circumstances.

In summation, we hold that the trial court properly determined that the trustee acted prudently in the manner in which he administered the trust and that the trial court correctly considered the “conflicted circumstances” of the case as one of the facts to be considered in evaluating the prudence of the trustee’s actions.

The judgment is affirmed.

In this opinion LAVERY, J., concurred.