Wilson v. Di Iulio ( 2019 )

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HEATHER WILSON v. MICHAEL Di IULIO
(AC 41240)
DiPentima, C. J., and Bright and Moll, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and issuing certain financial
orders. The defendant claimed that the trial court improperly failed to
award him more than nominal alimony despite the substantial disparity
in the parties’ incomes and ability to pay expenses, and abused its
discretion by making a property award enforceable by a modifiable
alimony award. Held:
1. The trial court did not abuse its discretion in failing to award more than
nominal alimony to the defendant; that court created an effectively equal
division of the parties’ marital assets by ordering the plaintiff to discharge
the mortgage on the marital property, in which the defendant continues
to reside, and to convey funds from her retirement plan to the defendant.
2. The defendant could not prevail on his claim that the trial court erred in
its property division by making a property award enforceable by a
modifiable alimony award; the court, which entered orders designating
the defendant as the alternate payee pursuant to a domestic relations
order but recognized that a decision by the plaintiff to remarry could
divest the defendant of that award because a new spouse would have
to consent to the designation of the defendant as the survivor beneficiary
under the terms of the plaintiff’s retirement plan, acted within its discre-
tion in fashioning the award, as it considered the restrictions in the
plaintiff’s retirement plan and, to account for them, ordered nominal
alimony of $1 per year to the defendant as security for the award, and
the court did not retain jurisdiction to modify the property award in
the future but, rather, issued an award of nominal alimony for the
protection of the defendant, which was not an abuse of discretion.
Argued March 11—officially released August 27, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Olear, J.; judg-
ment dissolving marriage and granting certain other
relief; thereafter, the court denied the defendant’s
motion for an articulation, and the defendant appealed
to this court. Affirmed.
John F. Morris, for the appellant (defendant).
Steven R. Dembo, with whom were Caitlin E. Koz-
loski and, on the brief, P. Jo Anne Burgh, for the appel-
lee (plaintiff).
Opinion
MOLL, J. The defendant, Michael Di Iulio, appeals
from the judgment of the trial court dissolving his mar-
riage to the plaintiff, Heather Wilson, and entering
related financial orders. On appeal, the defendant
claims that the court erred by (1) failing to award him
more than nominal alimony despite the substantial dis-
parity in the parties’ incomes and ability to afford
expenses and (2) making a property award enforceable
by a modifiable alimony award. We disagree with the
defendant and, accordingly, affirm the judgment of the
trial court.
The following facts, as set forth in the court’s memo-
randum of decision,1 and procedural history are rele-
vant to our discussion. The parties began dating in 1991,
when they both were employed by the Office of the
Attorney General. The plaintiff was, and continues to
work as, an assistant attorney general; the defendant
worked as an accountant until 2002 or 2003, when he
retired. The parties were married on October 6, 1999.
By complaint dated June 7, 2016, the plaintiff com-
menced the present action seeking dissolution of the
parties’ marriage.
The parties have two children, a daughter born in
2000, and a son born in 2004. The parties agreed to
share joint legal custody of the children and, during
trial, asked the court to incorporate their parenting plan
into the court’s decision. The parties’ daughter resided
with the plaintiff, and the parties’ son shared time with
both parents by staying with each parent alternating
weeks. The parties agreed that the children have
attended and may continue to attend private schools
and that the parties would pay these expenses from the
assets that they had accumulated for the children. The
parties also agreed, and the court ordered, that the
children’s postsecondary education expenses would be
paid from the funds in certain specified accounts and
that the plaintiff would pay any costs remaining after
the application of such funds.
At the time of trial, the plaintiff was fifty-seven years
old and generally was healthy. She has a bachelor’s
degree, as well as a juris doctor and has worked at
the Office of the Attorney General since 1986.2 The
plaintiff’s biweekly salary was $5968 and her net weekly
income after mandatory deductions was $1991. The
plaintiff is fully vested in the Connecticut state
employee retirement system. The court found that until
recently, the plaintiff had withheld funds from her
biweekly paycheck for investment in her 457 retirement
plan. The plaintiff also has premarital assets and assets
inherited from her mother.
At the time of trial, the defendant was seventy years
old. He has a bachelor’s degree and retired from the
Office of the Attorney General in 2002 or 2003. Prior
to his employment with the Office of the Attorney Gen-
eral, the defendant worked for various entities doing
accounting and cost analysis. The court found that the
defendant was not advancing in his position with the
Office of the Attorney General and was working for a
difficult supervisor. The parties mutually decided that
the defendant would retire, enabling him to provide
care to the parties’ young children and allowing the
plaintiff to continue working.
The defendant took an early retirement package and
elected, irrevocably, the 50 percent option form of
reduced retirement income for the plaintiff’s benefit.3
The defendant’s current pension payment is $393 per
week, and he receives social security income in the
amount of $249 per week. The court found the defen-
dant’s net income to be $842 per week, based on a
gross income of $982 per week.4 The court declined the
plaintiff’s request to impute $27,105 in annual retire-
ment income withdrawals to the defendant from his
retirement investment accounts; the court stated, how-
ever, that it had considered the availability of funds in
the defendant’s accounts in structuring its orders. The
court found that the defendant had premarital assets
and assets inherited from his family and that he had
contributed to a deferred compensation plan when he
was employed. Finally, the court found that, upon retire-
ment and against the plaintiff’s wishes, the defendant
rolled over the funds from his state managed retirement
fund into a Charles Schwab account that he could
manage.
Prior to the marriage, the plaintiff owned a home in
Meriden, and the defendant owned a home in Winsted.
In 1995, the plaintiff moved into the Winsted home
and thereafter sold her home in Meriden. The parties
refinanced the mortgage on the Winsted property using
a portion of the proceeds of the sale of the Meriden
home and thereafter owned the Winsted property as
joint tenants. In January, 2011, the parties purchased
the marital residence located in New Hartford. They
did not move into that home until November, 2011, as
they wanted to make some improvements to the home
prior to moving in. In October, 2012, the parties sold
the Winsted home.
In March, 2016, the plaintiff informed the defendant
that she was moving out. In May, 2016, the plaintiff
purchased a home in Unionville, where she continues
to reside. The plaintiff valued the Unionville home at
$280,000. The court found that the majority of funds
utilized to acquire this home were premarital and/or
inherited funds, that this home was subject to a mort-
gage of $45,000, and that the plaintiff had $235,000 of
equity therein. The defendant continues to reside in the
New Hartford home. According to the financial affida-
vits of both parties, the mortgage on the New Hartford
property had a principal balance of $162,000. The court
found that the fair market value of the home was
$350,000 and that the parties had $188,000 in equity in
the home.
In its memorandum of decision dissolving the parties’
marriage, the court did not attribute significantly
greater fault for the breakdown of the marriage to either
party. It ordered the plaintiff to make the monthly pay-
ments on the New Hartford mortgage from and after
the date of the judgment and to discharge the mortgage
encumbering the property within six months from the
date of the judgment. The court further ordered that
the plaintiff convey to the defendant the sum of $126,000
from her 457 retirement account. With regard to the
plaintiff’s pension, the court noted that, pursuant to the
plaintiff’s Connecticut state employee retirement plan,
the plaintiff could not elect a survivor beneficiary of
her retirement benefits until she retired and that, if the
plaintiff is remarried when she retires, the new spouse
would have to consent to the designation of the defen-
dant as the survivor beneficiary. The court entered
orders designating the defendant as the alternate payee
pursuant to a domestic relations order.5 The court fur-
ther ordered that no alimony was payable by one party
to the other except as set forth in section G.4 of the
dissolution judgment, which governed the distribution
of the parties’ respective retirement accounts. Pursuant
to section G.4 (v) of the dissolution judgment, the defen-
dant was awarded $1 per year in alimony ‘‘modifiable
only to enforce the rights called for in this provision.’’
Following the denials of the defendant’s postjudg-
ment motion for articulation and motion to reargue,
the defendant filed the present appeal.6
I
The defendant first claims that the court erred by
failing to award him more than nominal alimony despite
the substantial disparity in the parties’ incomes and
ability to pay expenses.7 He contends that the plaintiff’s
financial affidavit reveals a surplus of income over
expenses while the defendant’s affidavit reveals a short-
fall.8 Specifically, the defendant points out that the
plaintiff’s net income, as reflected on her financial affi-
davit, was $1966 per week and her expenses were $1178
per week, while he had a weekly income of $642 and
weekly expenses of $1270. In addition to the disparity
in the parties’ incomes, the defendant notes that he has
been retired for fifteen years and is seventy years of
age. He points out that he retired by agreement of the
parties, enabling him to care for the parties’ children
and allowing the plaintiff to focus on her career. Finally,
the defendant notes that the court did not attribute any
fault to either party in its decision. The plaintiff counters
that the court did not abuse its discretion in declining
to award additional alimony to the defendant. We agree
with the plaintiff.
We first set forth the standard of review applicable
to the defendant’s claim on appeal. ‘‘We review financial
awards in dissolution actions under an abuse of discre-
tion standard. . . . In order to conclude that the trial
court abused its discretion, we must find that the court
either incorrectly applied the law or could not reason-
ably conclude as it did. . . . In determining whether a
trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action.’’ (Citation
omitted; internal quotation marks omitted.) Horey v.
Horey, 172 Conn. App. 735, 740, 161 A.3d 579 (2017).
‘‘That standard of review reflects the sound policy that
the trial court has the unique opportunity to view the
parties and their testimony, and is therefore in the best
position to assess all of the circumstances surrounding
a dissolution action, including such factors as the
demeanor and attitude of the parties.’’ (Internal quota-
tion marks omitted.) Mensah v. Mensah, 167 Conn. App.
219, 228, 143 A.3d 622, cert. denied, 323 Conn. 923, 150
A.3d 1151 (2016).
‘‘General Statutes § 46b-82 governs awards of ali-
mony. That section requires the trial court to 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, earning capacity, vocational skills, education,
employability, estate and needs of each of the parties
and the award, if any, which the court may make pursu-
ant to section 46b-81 . . . . In awarding alimony, [t]he
court must consider all of these criteria. . . . It need
not, however, make explicit reference to the statutory
criteria that it considered in making its decision or
make express findings as to each statutory factor. . . .
The trial court may place varying degrees of importance
on each criterion according to the factual circum-
stances of each case.’’ (Citations omitted; internal quo-
tation marks omitted.) Emerick v. Emerick, 170 Conn.
App. 368, 379–80, 154 A.3d 1069, cert. denied, 327 Conn.
922, 171 A.3d 60 (2017). ‘‘There is no absolute right to
alimony.’’ Weinstein v. Weinstein, 18 Conn. App. 622,
637, 561 A.2d 443 (1989).
At trial, the defendant testified that he received his
bachelor’s degree in accounting from Central Connecti-
cut State University in 1976. Upon graduation, the defen-
dant worked as a cost analyst, first at Waring Products
in New Hartford and later at Ensign Bickford in Sims-
bury. He then worked as a plant accountant for UNC
Naval Products in New London for six years before
going to the Attorney General’s Office, where he worked
as an accountant for approximately fifteen years before
retiring in 2002 or 2003. Once the defendant retired, he
took over household and childcare responsibilities and
never again obtained full- or part-time employment in
the accounting field.
The defendant testified that his current annual
income, consisting of his pension and social security,
is approximately $32,000 and that he uses his pension
payments to pay the mortgage on the property in New
Hartford. In his amended proposed orders,9 the defen-
dant proposed that the plaintiff be ordered to pay him
$650 per week, or approximately $34,000 annually, in
permanent alimony. He testified that he based his
request for alimony on the cost of running the house-
hold. He further testified that it was his position that
the plaintiff should pay this expense in its entirety and
that the court should order that this award be perma-
nent and nonmodifiable, even if the plaintiff retired or
became disabled or ill.10
The plaintiff testified that she received her law degree
from Boston College Law School and has been
employed at the Attorney General’s Office since 1986.
She started as an assistant attorney general 1 and is
now an assistant attorney general 4, which is the highest
civil service level in the Attorney General’s Office. The
plaintiff’s financial affidavit reflected a gross weekly
income of $2996, although she conceded at trial that the
income as shown on a pay stub admitted into evidence
reflected a gross weekly income of $3357. The plaintiff
proposed using approximately $139,000 of her solely
held assets to pay off the mortgage on the New Hartford
property where the defendant lived with the parties’
son. She testified that she wanted to have the defendant
‘‘in a more comfortable financial position by not having
a mortgage to be concerned about.’’ She also thought
it was important that the parties’ son continue to reside
in that house because he had friends in the neighbor-
hood. According to the plaintiff, the monthly mortgage
payment on the house was approximately $1900 per
month in principal and interest, and she indicated that
she would consider the $139,000 payoff of the mortgage
‘‘as essentially sort of being in place of alimony in a
lump sum, that will reduce his need for alimony because
it will you know bring his expenses down signifi-
cantly.’’
In its decision, other than the nominal alimony award
set forth in section G.4 (v) of the dissolution judgment,
the court declined to award alimony to either party
and ordered, inter alia, that the plaintiff discharge the
mortgage on the New Hartford property within six
months from the date of judgment. The court stated
that, after considering General Statutes §§ 46b-81 and
46b-82, it had ‘‘fashioned the additional property settle-
ment by the plaintiff to the defendant in lieu of the
payment of periodic alimony and further to allow the
plaintiff to be removed from liability from the mortgage
presently encumbering the marital residence.’’ The
court further awarded each party the assets they respec-
tively held and ordered that the plaintiff convey to the
defendant the sum of $126,000 from her 457 retirement
plan with the state. In his brief, the defendant concedes
that these transfers ‘‘created an effectively equal divi-
sion of the parties’ marital assets.’’
The trial court stated that its decision not to award
alimony beyond the nominal alimony set forth in section
G.4 (v) of the dissolution judgment was ‘‘based on the
statutory factors, including the age, education, earnings,
cause of the breakdown, the estate and needs of the
parties, and the division of assets . . . .’’ Although the
court did not attribute significantly greater fault for the
marital breakdown to either party, it indicated that the
defendant’s testimony was often sarcastic and fre-
quently not credible and that, despite being an accoun-
tant, he claimed not to understand the proposed orders
and certain questions related to financial and/or retire-
ment matters. The court indicated that it found the
plaintiff’s testimony to be more credible. See Mensah
v. Mensah, supra, 167 Conn. App. 228 (trial court in
best position to assess circumstances surrounding dis-
solution action, including demeanor and attitude of par-
ties). The defendant acknowledges that the court cre-
ated an effectively equal division of the parties’ marital
assets by ordering the plaintiff to discharge the mort-
gage on the New Hartford property and to convey
$126,000 from her 457 retirement plan to him. On the
basis of our review of the record, and in light of these
orders, we cannot conclude that the court abused its
discretion in declining to award the defendant more
than nominal alimony. Accordingly, the defendant’s
claim fails.
II
The defendant next argues that the court erred in its
property division by making a property award enforce-
able by a modifiable alimony award. We disagree.
As previously stated, ‘‘[w]e review financial awards
in dissolution actions under an abuse of discretion stan-
dard. . . . In order to conclude that the trial court
abused its discretion, we must find that the court either
incorrectly applied the law or could not reasonably
conclude as it did. . . . 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.’’ (Citation omit-
ted; internal quotation marks omitted.) Horey v. Horey,
supra, 172 Conn. App. 740.
The court entered orders designating the defendant
as the alternate payee pursuant to a domestic relations
order. See footnote 5 of this opinion. Recognizing that
a decision by the plaintiff to remarry could divest the
defendant of this award, because the new spouse would
have to consent to the designation of the defendant as
the survivor beneficiary, the court ordered $1 per year
in alimony to the defendant ‘‘modifiable only to enforce
the rights called for in this provision.’’ According to the
defendant, this solution conflates the nonmodifiable
nature of a property division with the modifiable nature
of an alimony award.
The plaintiff agrees that a property award pursuant to
§ 46b-81 cannot be modified after judgment. She argues,
however, that there is nothing in the court’s decision
that seeks, orders, or retains jurisdiction to modify a
property settlement in the future. The plaintiff argues,
rather, that the court was within its discretion to award
alimony of $1 per year as security in favor of the defen-
dant given the terms of the plaintiff’s retirement plan.
We agree with the plaintiff.
In Utz v. Utz, 112 Conn. App. 631, 963 A.2d 1049,
cert. denied, 291 Conn. 908, 969 A.2d 173 (2009), this
court considered an order similar to the order at issue
in the present case. In Utz, the trial court ordered the
defendant to pay the plaintiff, inter alia, $1 per year in
alimony ‘‘until such time as the property settlement
[entered by the court was] paid in full and the liens
and encumbrances on the [marital home], which the
defendant is obligated to indemnify on account of [the
property settlement was] paid in full and, or, released,
or he exercises his option to purchase the residence
and acreage.’’ (Internal quotation marks omitted.) Id.,
633 n.1. The trial court further stated that the order of
$1 per year in alimony would be ‘‘modifiable to the
extent necessary to ensure that the defendant satisfies
all of his obligations under the property settlement,
periodic alimony and lump sum alimony orders.’’ (Inter-
nal quotation marks omitted.) Id. On appeal, the defen-
dant argued that the court’s order of $1 per year in
nominal alimony was evidence of the court’s knowledge
that he would be unable to comply with the court’s
order. Id., 634–35. This court rejected the defendant’s
claim, concluding that the court acted within its discre-
tion in entering the order. Id., 636.
As in Utz, we conclude that the court in the present
case acted within its discretion in fashioning the award
as it did. The court considered the restrictions in the
plaintiff’s retirement plan, which require that a future
spouse of the plaintiff consent to the designation of the
defendant as a survivor beneficiary. To account for this
scenario, the court ordered nominal alimony of $1 per
year to the defendant as security for the award.11 The
court did not retain jurisdiction to modify the property
award in the future but, rather, issued an award of
nominal alimony for the protection of the defendant.
On the basis of our review of the record, we cannot
conclude that the court abused its discretion in entering
this order.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court’s memorandum of decision also addressed a motion for con-
tempt filed by the defendant. This part of the court’s ruling is not at issue
in the present appeal.
2
The court found that the plaintiff had worked at the Office of the Attorney
General since 1988. The plaintiff testified, however, that she met the defen-
dant in 1988 when they both were employed at the Office of the Attorney
General but that she had started working in that office in September, 1986.
3
By making that election, the defendant’s base allowance of $16,640.10,
which would have been payable monthly in the amount of $1,386.68, was
reduced to $14,109.14, payable monthly in the amount of $1,175.76. The
plaintiff’s retained benefit is $588 per month.
4
In arriving at these figures, the court also included, in the defendant’s
income, a $340 per week social security dependency benefit paid to the
parties’ children.
5
Specifically, the court ordered that ‘‘the defendant as the alternate payee
shall receive, by a [domestic relations order], and the plaintiff is directed
to pay benefits to the alternate payee as a marital property settlement under
the following formula: fifty (50) percent of the gross monthly benefit payable
at the date of distribution to the plaintiff (member) multiplied by the ‘service
factor.’ The numerator of the service factor is the number of years accumu-
lated during the marriage period and the denominator is the member’s total
years of service covered by the plan and used in calculating the member’s
benefit. The amount payable to the defendant shall include a proportionate
share of any cost-of-living adjustments (COLAs) payable to the plaintiff.
‘‘This award of 50 percent of the gross monthly benefit payable at the
date of distribution to the plaintiff (member) multiplied by the ‘service
factor’ entitles the defendant to rights of joint survivor benefits, which are
herewith ordered as his, and the plaintiff is ordered to so continue that
designation to his benefit. The plaintiff’s retained right of designation of the
alternate payee is limited by this order.’’
6
The defendant also filed a motion for articulation after filing this appeal,
asking the trial court to articulate the factual and legal basis for several of
its financial orders. The trial court declined to articulate as requested. The
defendant did not file a motion for review of that articulation with this
court. See Practice Book § 66-7.
7
In support of his argument, the defendant contends, in part, that none
of the usual reasons used to justify time limited alimony applies. See Koval-
sick v. Kovalsick, 125 Conn. App. 265, 273–75, 7 A.3d 924 (2010); de
Repentigny v. de Repentigny, 121 Conn. App. 451, 460–61, 995 A.2d 117
(2010). We note, however, that the defendant did not request, and the court
did not order, time limited alimony.
8
As part of this argument, the defendant claims that this shortfall can
only increase, as he has been left solely responsible for the private school
expenses of the parties’ son. Specifically, the defendant contends that
although the parties agreed that their children would continue to attend
private schools and that they had agreed to fund such costs from the assets
they had accumulated for the children, the court never entered this agree-
ment as an order. The only order in the court’s decision concerning education
expenses pertained to postmajority education, in which the court ordered the
plaintiff to assume and pay for all college costs remaining after application
of certain specified accounts.
We note, however, that the defendant did not submit a proposed order
with regard to the payment of private school tuition. Further, when the
plaintiff attempted to question the defendant during cross-examination about
the private school tuition, the defendant objected on the ground that the
question went beyond the scope of direct examination. Finally, although
the defendant filed a motion asking the trial court to articulate the factual
and legal basis for several of its orders, the motion did not reference the
payment of private school tuition.
‘‘As the appellant, the defendant has the burden of providing this court
with a record from which this court can review any alleged claims of error.
. . . It is not an appropriate function of this court, when presented with
an inadequate record, to speculate as to the reasoning of the trial court or
to presume error from a silent record.’’ (Internal quotation marks omitted.)
United Amusements & Vending Co. v. Sabia, 179 Conn. App. 555, 561, 180
A.3d 630 (2018). In the present case, in addition to failing to submit a
proposed order regarding private school tuition, the defendant objected to
questioning on this issue and failed to include, in his motion for articulation,
a request that the court address this issue. Because we are left to speculate
with regard to the defendant’s claim of increased educational expenses for
the parties’ son, we decline to review this claim.
9
Although the caption of this document is ‘‘Plaintiff’s Amended Proposed
Orders,’’ the document was filed by counsel for the defendant.
10
The defendant also testified that he should receive 50 percent of the
plaintiff’s pension at the time of the final dissolution, even though it was
not in pay status, and speculated that the plaintiff would be able to comply
with the court’s order from her current assets. The defendant testified as
follows on cross-examination:
‘‘[The Plaintiff’s Counsel]: Now if the court orders the amount of money
you’re requesting, and to be clear . . . you are requesting that the court
order a transfer to you from [the plaintiff] of $883,690 on the day of the
divorce.
‘‘[The Defendant]: Okay, yes.
‘‘[The Plaintiff’s Counsel]: Do you have an understanding of, from what
assets [the plaintiff] would be able to meet such an order?
‘‘[The Defendant]: Mm-hmm.
‘‘[The Court]: You have to say yes or no.
***
‘‘[The Plaintiff’s Counsel]: Okay, how would you—how do you see her
doing that?
‘‘[The Defendant]: Well, she could take out a loan on her house.
‘‘[The Plaintiff’s Counsel]: Mm-hmm.
‘‘[The Defendant]: She has substantial savings.
‘‘[The Plaintiff’s Counsel]: Mm-hmm.
‘‘[The Defendant]: My understanding [is] she has over a million dollars in
assets, financial assets.’’
11
‘‘Nominal alimony, commonly $1 per year, is typical when the court
chooses to preserve for a future date the power to ascertain and to determine
the appropriate amount of periodic alimony.’’ Utz v. Utz, supra, 112 Conn.
App. 633 n.1.