O'Brien v. O'Brien ( 2015 )

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MICHAEL J. O’BRIEN v. KATHLEEN E. O’BRIEN
(AC 36694)
Beach, Prescott and Bear, Js.
Argued September 25—officially released December 1, 2015
(Appeal from Superior Court, judicial district Fairfield,
Hon. Howard T. Owens, Jr., judge trial referee
[dissolution judgment]; Pinkus, J. [financial orders].)
Daniel J. Klau, for the appellant (plaintiff).
George J. Markley, with whom was Aidan R. Welsh,
for the appellee (defendant).
Opinion
PRESCOTT, J. The plaintiff, Michael J. O’Brien,
whose marriage to the defendant, Kathleen E. O’Brien,
was dissolved in September, 2009, appeals, challenging
the new financial orders rendered by the trial court on
remand following his prior appeal from the judgment
of dissolution. See O’Brien v. O’Brien, 138 Conn. App.
544, 557, 53 A.3d 1039 (2012) (reversing dissolution
judgment only as to financial orders and remanding for
new trial on all financial issues), cert. denied, 308 Conn.
937, 66 A.3d 500 (2013). The dispositive issue raised
by the plaintiff in the present appeal is whether, after
remand, the court improperly skewed its equitable dis-
tribution of marital assets in favor of the defendant on
the ground that the plaintiff had engaged in certain
financial transactions, both prior to the dissolution
judgment and while the appeal from that judgment was
pending, that violated the automatic orders applicable
in all marital dissolution actions. See Practice Book
§ 25-5.1 Even if we assume without deciding that the
court correctly found that the plaintiff’s financial trans-
actions amounted to technical violations of the auto-
matic orders, we conclude that in the absence of some
additional finding by the court that the plaintiff’s actions
were contumacious or were conducted with an intent to
hide or to dissipate marital assets, the court improperly
‘‘took into account’’ the plaintiff’s financial transactions
and, for that reason, reduced the plaintiff’s share of
the property distribution. Accordingly, we reverse the
judgment of the trial court and remand the matter for
a new hearing on all financial orders.2
The following facts, which either were found by the
court in its memorandum of decision or are undisputed
in the record, and procedural history are relevant to
our consideration of the issues raised on appeal. The
plaintiff and the defendant were married in 1985. They
had three children born of the marriage. At the time of
the dissolution judgment in 2009, the children were
nine, thirteen, and fifteen years old. Both parties are
well educated, each having graduated with a degree
from Cornell University. After the parties were married,
the plaintiff also earned a law degree.
The plaintiff currently is employed as senior vice
president, general counsel, and secretary of Omnicom
Group, Inc. (Omnicom), a Fortune 200 company. Prior
to that position, he worked as an attorney for several
New York law firms. The plaintiff’s base salary with
Omnicom is $700,000 a year, but his compensation pack-
age also includes a variable annual cash bonus as well
as a noncash component, which, in the past, has con-
sisted of some form of company stock or stock options.
Since 2004, the plaintiff’s total yearly cash earnings
averaged more than $1.2 million.
Prior to 2003, the defendant had a successful career
in banking; her last position was as a managing director
for Credit Suisse, where she earned more than $1 mil-
lion a year. She left that career, however, in 2003, to
devote her time to raising the parties’ children. She
returned to work in 2007, as an executive recruiter, but
left that position in 2008. Later, in 2013, the defendant
participated in a three month returnship program
offered by JP Morgan Chase. On the basis of her earn-
ings from the returnship program, the defendant has a
present annual earning capacity of $143,000.
Money was never an issue for the parties until the
dissolution action was commenced. Since 2001, they
lived in a large home in Greenwich, where they often
entertained. They frequently traveled with the children,
who have attended private schools.
The plaintiff commenced the present action seeking
dissolution of the parties’ marriage in January, 2008.3
Service of the complaint included service of notice of
the automatic orders in accordance with Practice Book
§§ 25-2 and 25-5.
On February 12, 2009, several months prior to the
dissolution trial, the plaintiff sold 28,127 shares of Omni-
com stock, which represented all of the vested shares
he held as of that date. The plaintiff was worried about
the volatility of the stock market at that time in light
of the stock market crash of October, 2008, and the
ongoing global financial crisis, and believed it was in
the best interest of the parties’ financial well-being to
sell the stock immediately to preserve assets. The sale
price was $27.451 per share and resulted in cash pro-
ceeds of $772,140. All proceeds from the stock sale
were placed in a Merrill Lynch account. The plaintiff
disclosed the stock sale to the defendant by reflecting
the change on his financial affidavit dated April 21,
2009. The plaintiff did not obtain the defendant’s written
consent prior to selling the stock, nor did he seek per-
mission to do so from a judicial authority. Prior to the
dissolution trial, the defendant did not file a motion
for contempt claiming that the stock sale violated the
automatic orders.
Several months later, the dissolution action was tried
to the court, Hon. Howard T. Owens, Jr., judge trial
referee. On September 18, 2009, the court rendered
judgment dissolving the parties’ marriage. As part of
the orders issued in conjunction with the dissolution
judgment, the court effectively awarded 45 percent of
all marital assets to the plaintiff and 55 percent to the
defendant, which included future proceeds from the
court’s ordered sale of the parties’ marital home and
lake house as well as ‘‘all vested and unvested stock
and stock options . . . .’’4 The court made no mention
of the plaintiff’s predissolution sale of stock in its deci-
sion; the Merrill Lynch account containing the proceeds
from that sale of stock was subject to the overall 45/
55 percent split. During the pendency of the first appeal,
the court lifted the appellate stay with respect to the
Merrill Lynch account containing the proceeds from
the stock sale, and funds were disbursed to the parties
in accordance with a stipulated agreement.
The plaintiff appealed from the judgment of dissolu-
tion, challenging the court’s unallocated alimony and
child support award, as well as certain other aspects
of the court’s financial orders.5 The plaintiff did not
challenge the property division orders. While that
appeal was pending, the plaintiff, on two separate occa-
sions, exercised a total of 75,000 stock options that had
vested during the pendency of the appeal, immediately
converting the resulting shares of stock into cash.6 The
plaintiff had received the 75,000 unvested Omnicom
stock options in March, 2009, during the pendency of the
dissolution action, as part of his noncash compensation;
22,500 of those shares vested in October, 2010, and
resulted in cash proceeds of $445,000. The remaining
52,500 shares vested in October, 2012, generating
$1,345,050 in cash. On neither occasion did the plaintiff
obtain the consent of the defendant or seek permission
from any judicial authority prior to initiating the stock
option transactions. The plaintiff fully preserved all pro-
ceeds from each of the stock option transactions in a
Fidelity account.
This court issued its decision in the first appeal on
October 16, 2012, reversing the judgment of dissolution
only as to the trial court’s financial orders. See O’Brien
v. O’Brien, supra, 138 Conn. App. 557. We concluded
that the court improperly had issued an unallocated
award of alimony and child support without first consid-
ering and applying the child support guidelines; id., 555;
and remanded the matter for a new trial on all financial
issues. Id., 557.
On remand, the matter was tried before the court,
Pinkus, J., over five days between February 10 and 19,
2014. On February 10, 2014, the defendant filed a motion
for contempt in which she argued that the plaintiff’s
predissolution sale of stock and his postdissolution
exercise of stock options violated the automatic orders.
The defendant asked the court to adjudicate the plaintiff
in contempt, to order the plaintiff to pay all legal fees
and costs incurred in connection with the motion, and
to award any other relief that the court deemed appro-
priate.
During the trial before Judge Pinkus, the defendant
elicited testimony from an accounting expert, Mark Har-
rison, who opined that, had the plaintiff not sold the
28,127 shares of stock for $772,140 prior to the first
dissolution trial, those same shares of stock would have
been worth $2,140,465 on February 18, 2014, the date
the expert testified at the retrial. The expert also testi-
fied that had the plaintiff not exercised his stock options
in the manner that he did, netting a combined
$1,790,050, those stock options would have been valued
at $3,952,500 on February 18, 2014. Thus, the defendant
sought to establish through her expert that the plaintiff’s
financial transactions, which the defendant asserted
were made in violation of the automatic orders, resulted
in a net loss to the marital estate of more than $3.5
million if valued at the date of the retrial.
In a written memorandum of decision, the court
stated that, in crafting its financial orders, it had consid-
ered all relevant statutory criteria and that it had valued
all marital assets as of the date of dissolution.7 The
court noted that the parties had filed a stipulation dated
February 18, 2014, in which the parties had assigned
values for most of the marital assets as of the date of
dissolution, and the court incorporated that stipulation
by reference. The court further indicated that if any
asset had no current value but had a value at the time
of dissolution, the court took that fact ‘‘into account’’
in rendering its financial orders.
Turning specifically to the issue of the plaintiff’s pre-
dissolution sale of stock and his postdissolution exer-
cise of stock options, the court first indicated that those
transactions resulted in ‘‘a significant loss to the marital
estate.’’ The court next found that the transactions ‘‘did
in fact violate the automatic orders.’’ The court, how-
ever, continued: ‘‘The plaintiff testified that he was act-
ing on advice of counsel. As a result, he is not found
to be in contempt; however, the court has taken into
account these transactions in making its awards.’’
(Emphasis added.)
Following that statement, the court set forth its finan-
cial orders. With respect to alimony and child support,
the court ordered the plaintiff to pay the defendant
$1248 per week in child support, retroactive to Septem-
ber 18, 2009, and subject to adjustment once the plaintiff
became obligated to pay child support for only one
child. The court also made alimony retroactive to Sep-
tember 18, 2009, ordering the plaintiff to pay the defen-
dant $45,000 per month for the first seven years, at
which time payments would reduce to $37,500 per
month for the next seven years, followed by an addi-
tional seven year period at $25,000 per month.8 Finally,
the court issued orders dividing the marital assets,
including all assets identified and valued by the parties
in their February 18, 2004 stipulation.9 This appeal
followed.
On May 6, 2014, the plaintiff filed a motion for articu-
lation pursuant to Practice Book § 66-5. In his motion,
the plaintiff asked the court, inter alia, to state ‘‘[t]he
manner in which the court ‘took into account’ the sales
of shares and exercise of stock options which it believed
violated the [automatic orders], i.e., how did these trans-
actions affect the court’s final order.’’ The trial court
denied the motion for articulation, following which, the
plaintiff sought review of that decision from this court.
We granted the plaintiff’s motion for review in part and
ordered the court to explain how it ‘‘took into account’’
the stock and stock option transactions in distributing
the marital assets. With regard to our articulation order,
the trial court stated: ‘‘As the Appellate Court frequently
writes, financial orders in dissolution proceedings often
have been described as a mosaic, in which all of the
various financial components are carefully interwoven
with one another. . . . Therefore, it is impossible to
say with great specificity exactly how the court ‘took
into account’ the sales of the shares and the exercise
of the stock options by the plaintiff. However, these
transactions by the plaintiff were taken into account
when the defendant was awarded the family home and
her pension from Credit Suisse, as well as the equitable
division of all of the other assets of the parties.’’10 (Cita-
tion omitted.)
Before turning to the plaintiff’s claim, we first set
forth the relevant standard of review and general princi-
ples of law that guide our decision. ‘‘The well settled
standard of review in domestic relations cases is that
this court will not disturb trial court orders unless the
trial court has abused its legal discretion or its findings
have no reasonable basis in the facts. . . . As has often
been explained, the foundation for this standard is that
the trial court is in a clearly advantageous position to
assess the personal factors significant to a domestic
relations case . . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Notwith-
standing the great deference accorded the trial court
in dissolution proceedings, a trial court’s ruling . . .
may be reversed if, in the exercise of its discretion, the
trial court applies the wrong standard of law.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Maturo v. Maturo, 296 Conn. 80, 87–88, 995 A.2d 1
(2010).
General Statutes § 46b-81 is the sole source of author-
ity for a trial court to distribute marital assets in a
dissolution action. ‘‘Although it is well established that
trial courts have broad equitable remedial powers
regarding marital dissolutions . . . it is equally well
settled that [c]ourts have no inherent power to transfer
property from one spouse to another; instead, that
power must rest upon an enabling statute.’’ (Citation
omitted; internal quotation marks omitted.) Smith v.
Smith, 249 Conn. 265, 272, 752 A.2d 1023 (1999).
Section 46b-81 provides in relevant part: ‘‘(a) At the
time of entering a decree . . . dissolving a marriage
. . . pursuant to a complaint under section 46b-45, the
Superior Court may assign to either spouse all or any
part of the estate of the other spouse. . . . (c) In fixing
the nature and value of the property, if any, to be
assigned, the court, after considering all the evidence
presented by 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, earning capacity, voca-
tional skills, education, 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 appreci-
ation in value of their respective estates.’’ Although ‘‘a
trial court must consider all the statutory criteria in
determining the financial awards and division of prop-
erty in a dissolution action, the court is not required
to recite the statutory criteria it considered in making
its awards, nor is it required to make express findings
as to each factor listed in the relevant statutes.’’ Zern
v. Zern, 15 Conn. App. 292, 295, 544 A.2d 244 (1988).
‘‘The purpose of a property division pursuant to a
dissolution proceeding is to unscramble existing marital
property in order to give each spouse his or her equita-
ble share at the time of dissolution.’’ (Emphasis added.)
Smith v. Smith, supra, 249 Conn. 275. In other words,
it is well understood that all financial awards in a disso-
lution action should be based on the financial circum-
stances of the parties as they existed on the date that
the judgment of dissolution was rendered. Kremenitzer
v. Kremenitzer, 81 Conn. App. 135, 140, 838 A.2d 1026
(2004). Therefore, as a general rule, if a remand for
new financial orders becomes necessary, absent some
‘‘ ‘exceptional intervening circumstances,’ ’’ the date of
the dissolution judgment (here, September 18, 2009,
and not the date of the new trial on financial orders)
is the proper time at which the court should value
components of the parties’ estate in crafting its equita-
ble property division orders. Sunbury v. Sunbury, 216
Conn. 673, 676, 583 A.2d 636 (1990). Although no appel-
late court has attempted to define in any precise manner
what would constitute an exceptional, intervening cir-
cumstance, we have clarified previously that any
increase or decrease in the value of property following
the date of dissolution does not, in and of itself, consti-
tute an exceptional circumstance justifying a deviation
from the rule requiring the court to value the assets in
the marital estate as of the date of dissolution. See id.;
see also Kremenitzer v. Kremenitzer, supra, 81 Conn.
App. 139–40; Rolla v. Rolla, 48 Conn. App. 732, 745, 712
A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237
(1998). With these principles in mind, we turn to the
plaintiff’s claim.
The plaintiff claims that the court improperly deter-
mined that he violated the automatic orders set forth
in Practice Book § 25-5 by selling stocks and exercising
stock options during the pendency of the dissolution
action without first obtaining the written consent of
the defendant or an order of the judicial authority.11
According to the plaintiff, it was inequitable, and, there-
fore, an abuse of discretion, for the court to have penal-
ized him for those financial transactions when it
distributed the marital assets because his clear intent
had been to protect marital assets in the face of a
declining stock market and global financial crisis, and
because he had preserved all of the cash proceeds from
those transactions for distribution by the court.
In support of his claim, the plaintiff makes the follow-
ing four arguments. First, the plaintiff argues that the
defendant waived any claim regarding the impropriety
of the predissolution stock sale because she raised the
issue to the court for the first time on remand. Second,
he argues that the 75,000 stock options that he exercised
postdissolution were never marital property because
they were awarded to him fourteen months after he
filed for divorce, and, thus, his exercise of those options
postdissolution did not implicate the automatic
orders.12 Third, the plaintiff relies on the exception in
the language of the automatic orders permitting transac-
tions that are carried out in ‘‘the usual course of busi-
ness,’’ arguing that this exception is applicable to the
transactions at issue in the present case. Fourth, the
plaintiff argues that even if his actions technically vio-
lated the automatic orders, they did not amount to a
dissipation of the marital assets or otherwise cause any
legally cognizable harm that should have affected the
distribution of assets. We find this fourth argument per-
suasive.13
Specifically, for the following reasons, we agree that,
even if the plaintiff technically violated the automatic
orders when he sold stock and exercised options during
the pendency of the dissolution action without permis-
sion from the defendant or the court, the resulting sanc-
tion imposed on the plaintiff by the court—namely,
some unspecified reduction in the plaintiff’s share of
the marital estate—was not legally justified and, thus,
an abuse of discretion.14 First, the court expressly found
that the plaintiff’s actions were not contumacious, and,
thus, we conclude that it lacked any authority to punish
the plaintiff pursuant to its civil contempt powers. Sec-
ond, although in exercising its statutory authority under
§ 46b-81, the court certainly could take into account,
when dividing the parties’ assets, whether a party had
engaged in a dissipation of those assets, there is nothing
in the present record that would support a finding that
the plaintiff intended to hide or to dissipate assets, nor
did the court make such a finding.
Although, as we have indicated, our resolution of this
appeal does not turn on whether the court properly
found that the defendant had violated the automatic
orders, we nevertheless find it helpful to begin our
discussion with the automatic orders. The court’s auto-
matic orders, applicable during the pendency of all mar-
ital dissolution actions, are set forth in Practice Book
§ 25-5 (b) and provide in relevant part: ‘‘(1) Neither
party shall sell, transfer, exchange, assign, remove, or
in any way dispose of, without the consent of the other
party in writing, or an order of a judicial authority, any
property, except in the usual course of business or
for customary and usual household expenses or for
reasonable attorney’s fees in connection with this
action. . . .’’ The orders further provide that ‘‘[n]either
party shall conceal any property. . . .’’ Practice Book
§ 25-5 (b) (2).
The purpose of the automatic orders in marital disso-
lution actions is to maintain the status quo of the assets
within the marital estate so that they may be distributed
by the court at the time of dissolution. See Ferri v.
Powell-Ferri, 317 Conn. 223, 233, 116 A.3d 297 (2015);
Parrotta v. Parrotta, 119 Conn. App. 472, 483, 988 A.2d
383 (2010). As provided in bold print at the end of
Practice Book § 25-5, the ‘‘[f]ailure to obey [the auto-
matic] orders may be punishable by contempt of court.
. . .’’ Practice Book § 25-5 (c). ‘‘Judicial sanctions in
civil contempt proceedings may, in a proper case, be
employed for either or both of two purposes: to coerce
the defendant into compliance with the court’s order,
and to compensate the complainant for losses sus-
tained. . . . [If] compensation is intended, a fine is
imposed, payable to the complainant.’’ (Citation omit-
ted; internal quotation marks omitted.) DeMartino v.
Monroe Little League, Inc., 192 Conn. 271, 278–79, 471
A.2d 638 (1984). Accordingly, in the context of a dissolu-
tion action, if a party is found in contempt of court for
wilfully violating the court’s automatic orders, the court
is empowered to order a variety of remedial sanctions,
including imposition of penalties and fines.
In the present case, however, the court rejected the
defendant’s argument that the plaintiff should be found
in contempt for violating the automatic orders.
Although the court found that the plaintiff’s financial
transactions had violated the automatic orders, it never-
theless concluded that he was not in wilful contempt
because he had acted on the advice of counsel.15 The
court made no finding that the plaintiff had attempted
to circumvent the beneficial purposes underlying the
automatic orders by intentionally disposing of or wast-
ing marital assets. Having determined that the plaintiff’s
transactions were not contumacious but rather, at least
to some degree, were justified or made in good faith,
the court lost its authority pursuant to its contempt
powers to take any remedial action against the plaintiff
simply because, with the luxury of hindsight, those
transactions had proven unprofitable or even unwise.
In other words, if the court had found the plaintiff in
contempt of the automatic orders, that conclusion
might have justified its further consideration of the
effect those violations had on the assets available for
distribution. In such circumstances, the court could
have taken remedial action, perhaps reducing the plain-
tiff’s distribution in an amount necessary to compensate
the defendant. Nevertheless, having effectively denied
the defendant’s motion for contempt, the court was
required to dispose of the marital assets in accordance
with its authority under § 46b-81, which did not include
the power to punish in the absence of dissipation.
Our Supreme Court has stated that, pursuant to § 46b-
81, trial courts have the statutory authority to consider
if a spouse has dissipated marital assets when determin-
ing the nature and value of property to be assigned to
each respective spouse. See Finan v. Finan, 287 Conn.
491, 500–501, 949 A.2d 468 (2008). Accordingly, the
court would have had the authority to make a down-
ward adjustment in the plaintiff’s share of the marital
assets if it had determined that the plaintiff’s purported
violations of the automatic orders amounted to a dissi-
pation of marital assets.
‘‘Generally, dissipation is intended to address the situ-
ation in which one spouse conceals, conveys or wastes
marital assets in anticipation of a divorce. See 2 B.
Turner, Equitable Distribution of Property (3d Ed. 2005)
§ 6:102, p. 539. Most courts have concluded that some
type of improper conduct is required before a finding of
dissipation can be made. Thus, courts have traditionally
recognized dissipation in the following paradigmatic
contexts: gambling, support of a paramour, or the trans-
fer of an asset to a third party for little or no consider-
ation.’’ (Footnotes omitted.) Gershman v. Gershman,
286 Conn. 341, 346, 943 A.2d 1091 (2008). The court in
Gershman stressed that ‘‘[p]oor investment decisions,
without more, generally do not give rise to a finding of
dissipation.’’ Id., 348, and cases cited therein. It con-
cluded that, ‘‘at a minimum, dissipation in the marital
dissolution context requires financial misconduct
involving marital assets, such as intentional waste or a
selfish financial impropriety, coupled with a purpose
unrelated to the marriage.’’ Id., 351.
In the present case, however, there was no express
finding by the court that the plaintiff had dissipated
marital assets, nor would an implicit finding be sup-
ported by the record. Nothing in the record indicates
that the plaintiff, by selling stock or exercising stock
options, intended to waste marital assets or to hide
assets from the defendant or the court. Indeed, the
plaintiff was also harmed by any resulting loss to the
marital estate from his transactions, as his share of
any property distribution was similarly affected. The
plaintiff’s uncontested testimony at trial was that he
was concerned in the face of the ongoing financial crisis
that the stock and stock options would likely lose value
given market conditions and, therefore, he decided it
would be wise to convert those assets into cash. The
fact that his noncontumacious financial decisions now
appear, with the virtue of hindsight, to be imprudent
does not mean that he dissipated assets. See id., 348;
Quasius v. Quasius, 87 Conn. App. 206, 208–209, 866
A.2d 606, cert. denied, 274 Conn. 901, 876 A.2d 12 (2005).
Furthermore, the defendant has not alleged that the
plaintiff engaged in any financial misconduct involving
the proceeds of the stock sale or the exercise of the
stock options, nor is any such conduct apparent from
the record. Rather, the plaintiff placed all proceeds into
bank accounts that he fully disclosed on his financial
affidavits.
In sum, because the defendant was not in wilful con-
tempt of the automatic orders and made no attempt to
dissipate marital assets, it was an abuse of the court’s
legal discretion to take his purported violations of the
automatic orders into account in dividing the marital
assets. Because, as we have explained on numerous
occasions, financial orders appurtenant to a dissolution
of marriage are ‘‘a carefully crafted mosaic, each ele-
ment of which may be dependent on the other’’; Ehrenk-
ranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d
826 (1984); we remand this matter to the trial court for
a new trial on all financial issues in accordance with
this opinion.
The judgment is reversed and the case is remanded
for a new trial on all financial issues.
In this opinion the other judges concurred.
1
Practice Book § 25-5 (b) provides in relevant part: ‘‘In all cases involving
a marriage or civil union, whether or not there are children:
‘‘(1) Neither party shall sell, transfer, exchange, assign, remove, or in any
way dispose of, without the consent of the other party in writing, or an
order of a judicial authority, any property, except in the usual course of
business or for customary and usual household expenses or for reasonable
attorney’s fees in connection with this action. . . .’’
Practice Book § 61-11 (c) makes clear that ‘‘[t]he automatic orders set
forth in Section 25-5 (b) (1), (2), (3), (5) and (7) shall remain in effect during
any appeal period and, if an appeal is taken, until the final determination
of the cause unless terminated, modified or amended further by order of a
judicial authority upon motion of either party. . . .’’ Accord Practice Book
§ 25-5 (automatic orders to remain in place ‘‘during the pendency of the
action’’).
2
In addition to challenging the propriety of the court’s financial orders
with respect to the plaintiff’s purported violations of the automatic orders,
the plaintiff also raises a number of other claims. In particular, the plaintiff
claims that the court abused its discretion by ordering excessive alimony and
child support payments, and by ordering an excessive lump sum retroactive
alimony payment. The plaintiff also claims that the court improperly found
that the defendant had been unaware of a pension account that she disclosed
only a few days prior to the trial on remand. Because we reverse the court’s
financial orders on other grounds, and ‘‘the entirety of the [financial] mosaic
must be refashioned’’ on remand; Gershman v. Gershman, 286 Conn. 341,
352, 943 A.2d 1091 (2008); we do not address these other claims of error.
3
The plaintiff had become less and less committed to the marriage over
time. Although the defendant may have ignored signs that the marriage was
failing, she nevertheless remained committed to saving the relationship. The
defendant has alleged throughout the divorce proceedings that the plaintiff
engaged in an adulterous relationship. In his decision following the first trial,
Judge Owens found that the defendant had failed to prove her allegations by
a preponderance of the evidence; however, the court found that the plaintiff
was primarily at fault for the breakdown of the marriage. In his decision
following the trial on remand, Judge Pinkus also found that the defendant’s
allegations of adultery were unsubstantiated by the evidence.
4
Judge Owens’ property distribution order can only be interpreted as
having treated all unvested stock options held by the plaintiff at the time
of dissolution as marital property subject to equitable distribution. One of
the arguments raised by the plaintiff in the present appeal is that the unvested
stock options were never marital property, having been issued to the plaintiff
many months after he had filed for divorce, and, therefore, he could not have
violated the automatic orders by later converting those options into cash.
The plaintiff never challenged in his prior appeal the court’s treatment
of the unvested stock options as marital property or their distribution. It is
well established that an appellant forfeits any claim of error that he or she
could have but failed to raise in a prior appeal. Harris v. Bradley Memorial
Hospital & Health Center, Inc., 306 Conn. 304, 319–20, 50 A.3d 841 (2012),
cert. denied, U.S. , 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013). Because
the plaintiff could have challenged the court’s treatment of the stock options
as marital property in his prior appeal but failed to do so, the plaintiff has
waived his right to argue that the unvested stock options were not marital
property and, thus, that their exercise could not have violated the automatic
orders. The plaintiff similarly has waived any argument, now or on further
remand, that the proceeds resulting from the exercise of those options are
not subject to distribution by the court in accordance with General Statutes
§ 46b-81.
5
In his first appeal, the plaintiff also raised claims that the court could
not have properly crafted its financial orders because it failed to assign an
earning capacity to the defendant, and that the court improperly had ordered
him to maintain a life insurance policy benefiting the defendant for as long
as he had an alimony obligation. See O’Brien v. O’Brien, supra, 138 Conn.
App. 545 n.1. These claims were not reached by this court. Id.
6
The plaintiff engaged in what was explained at trial by the defendant’s
expert as a ‘‘cashless exercise’’ of his options, wherein the stock options
were converted into cash as part of a single brokerage transaction, permitting
the plaintiff to realize the difference between the value of the stock on the
public markets at the time of the transaction and the ‘‘strike price’’ of the
option, which was the price at which the plaintiff had a legal right to purchase
shares pursuant to the grant of the option.
7
The defendant’s expert did not testify as to what the value of the unvested
stock options was on September 18, 2009, the date of dissolution, or what
the shares of Omnicom that the plaintiff sold prior to dissolution would
have been worth on that date. In our review of the record, we have not
found any evidence of what those assets would have been worth as of the
date of dissolution.
8
In determining its alimony and child support orders, the court utilized
an adjusted net income for the plaintiff calculated on the basis of his salary
and cash bonus only; the court did not consider the noncash component
of the plaintiff’s salary.
9
The parties do not agree as to the net effect of the court’s property
distribution orders. According to the plaintiff’s calculations, the court effec-
tively awarded the defendant at least 68 percent of the parties’ assets. The
defendant, on the other hand, calculates that the percentage effectively
awarded to the defendant is closer to 62 percent of the parties’ total assets.
For purposes of our analysis, it is unnecessary for us to calculate the exact
percentages awarded to each side because our resolution of the appeal does
not turn on whether the court’s overall percentage of assets awarded to the
plaintiff was inequitable, but on whether, in balancing all equities involved,
and in light of all relevant statutory criteria, the court impermissibly placed
its thumb on the scale in favor of the defendant, at least in part, on the
basis of what the court found were noncontumacious violations of the
automatic orders by the plaintiff.
10
In light of this response, we conclude that additional attempts to have
the trial court articulate how it took into account the plaintiff’s actions
would not have been fruitful.
11
The plaintiff asks us to announce a bright line rule in this case establish-
ing that whenever any party to a dissolution action sells stock or exercises
stock options in publicly traded companies on an established exchange,
and thereafter retains or reinvests all of the resulting proceeds, such transac-
tions will be deemed to have been made ‘‘in the usual course of business’’
and, thus, as not in violation of the automatic orders. The plaintiff argues
that such a rule is necessary because parties often will need to make quick
decisions about selling or trading stocks and other equities, especially during
volatile markets, and that requiring the party to seek prior approval from
the court would result in unnecessary and untenable delays. Further,
according to the plaintiff, courts generally are ill-equipped to evaluate the
appropriateness of a party’s decision to engage in such transactions, resulting
in the need for ‘‘minitrials’’ to evaluate the prudence of a particular transac-
tion. The defendant disputes the need for such a rule, arguing that expedited
hearings are already available and that such a rule would encourage parties
to engage in other forms of ‘‘self-help,’’ which courts have rightly discour-
aged. See In re Leah S., 284 Conn. 685, 700, 935 A.2d 1021 (2007) (recognizing
existence of ‘‘important public policy against resorting to self-help tactics’’).
Because it is unnecessary for us to resolve in the present case whether the
transactions at issue violated the automatic orders, we decline the plaintiff’s
invitation to consider the relative merits of establishing such a rule at
this time.
12
See footnote 4 of this opinion.
13
Because we agree with the plaintiff’s final argument in support of his
claim on appeal, it is unnecessary for us to consider the plaintiff’s remaining
arguments, including whether, in light of the facts presented in the present
case, the plaintiff’s decision to convert stock and stock options into cash
actually violated the automatic orders.
14
Although we recognize that the court was unable or unwilling to articu-
late precisely how it had accounted for the plaintiff’s violations of the
automatic orders, we nevertheless construe the court’s statement that those
violations affected its decision to award the defendant ‘‘the family home
and her pension from Credit Suisse, as well as the equitable division of all
of the other assets of the parties’’ as an indication that the court skewed
the distribution in favor of the defendant in a materially significant, although
unquantifiable, amount.
15
The defendant does not challenge on appeal the court’s finding that the
plaintiff was not in contempt of court. Accordingly, we take no position on
whether a party may shield himself or herself from a finding of wilful
contempt by showing that he or she relied on the advice of legal counsel.