O'Brien v. O'Brien , 326 Conn. 81 ( 2017 )

 MICHAEL J. O’BRIEN v. KATHLEEN E. O’BRIEN
(SC 19635)
Rogers, C. J., and Palmer, McDonald, Espinosa, Robinson and Vertefeuille, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to the Appellate Court from certain financial orders
that the trial court had entered on remand from a previous appeal from
the judgment of dissolution. During the pendency of the dissolution
action and the previous appeal, while certain automatic court orders
prohibiting the sale, exchange, or transfer of any property without the
consent of the other party or an order of the court were in effect,
the plaintiff executed three stock transactions without the defendant’s
consent or a court order. The transactions consisted of the sale of vested
shares of stock after the dissolution action was filed but before the
divorce decree was entered, and the exercise of certain stock options
that the plaintiff received after the dissolution action was filed and
before the divorce decree was entered, but that vested and were exer-
cised during the pendency of the previous appeal. The plaintiff executed
these transactions in light of his concerns about the volatility of the
stock market at the time of the transactions and the need to preserve,
in the party’s best interest, the current value of the stocks, and he
placed the proceeds in a bank account and subsequently disclosed the
transactions to the defendant. On remand from the previous appeal, the
defendant filed a motion to hold the plaintiff in contempt for his pur-
ported violation of the automatic orders. At the remand trial, the defen-
dant presented expert testimony indicating that the value of the stocks
and options at the time of the transactions was approximately $2.5
million, that they would have had a value of approximately $6 million
at the time of the remand trial, and that the transactions thus had caused
a loss to the estate of approximately $3.5 million. The trial court found
that, although the plaintiff had violated the automatic orders, the viola-
tions were not wilful and, therefore, declined to hold the plaintiff in
contempt. Because the transactions had caused a significant loss to the
marital estate, however, the trial court considered the violations in
awarding the defendant approximately two thirds of the value of the
marital property. On appeal, the Appellate Court concluded, inter alia,
that the trial court improperly had considered the violations in making
its financial awards because it lacked authority to punish the plaintiff
pursuant to its civil contempt power by reducing the plaintiff’s share
of the marital estate, as his actions did not rise to the level of contempt
or a dissipation of marital assets. The Appellate Court therefore reversed
the trial court’s judgment with respect to the financial orders and
remanded the case for a new hearing on all financial matters. On the
granting of certification, the defendant appealed to this court, claiming
that the Appellate Court incorrectly concluded that the trial court lacked
authority to afford her a remedy for the plaintiff’s violations of the
automatic orders in the absence of a contempt finding. Held:
1. The trial court, having possessed inherent authority to make a party whole
for harm caused by another party’s violation of a court order, even when
the court does not find the offending party in contempt, the Appellate
Court incorrectly concluded that the trial court improperly had consid-
ered, in making its financial orders, the plaintiff’s violations of the auto-
matic orders stemming from his decision to conduct the stock
transactions without the defendant’s consent or the trial court’s permis-
sion; a trial court may remedy any harm caused by a party’s violation
of a court order by compensating the harmed individual for losses
sustained as a result of the violation, regardless of whether the court
finds that party in contempt, prior decisions of the Appellate Court have
upheld compensatory awards imposed in contempt proceedings for the
violation of a court order, even in the absence of a contempt finding,
and, accordingly, the trial court in the present case properly exercised
its discretion by adjusting the property distribution to account for the
loss caused by the plaintiff’s violation of the automatic orders.
2. The plaintiff could not prevail on his claim that the trial court’s financial
award was erroneous because it was excessive and based on an improper
method for valuing the loss to the marital estate; the trial court fairly
determined the loss to the marital estate, the court’s adjustment of
the property distribution in favor of the defendant did not exceed the
defendant’s reasonable share of the loss resulting from the plaintiff’s
transactions, and, because the court’s remedial award in adjusting the
property distribution was made pursuant to its inherent authority to
make a party whole for the violation of a court order rather than pursuant
to the statute (§ 46b-81) governing equitable distribution of marital prop-
erty, it was within the court’s discretion to consider the value that the
stocks and options would have had at the time of the trial on remand from
the previous appeal rather than their value as of the date of dissolution or
as of the dates that the violations of the automatic orders occurred, as
the court was entitled to put the defendant in the position in which
she would have been in the absence of the plaintiff’s violation of the
automatic orders.
3. The plaintiff could not prevail on his claims, as alternative grounds for
affirming the Appellate Court’s judgment, that the plaintiff’s transactions
did not violate the automatic orders because those transactions were
made in the usual course of business and that the trial court ignored
the usual course of business exception to the provision in the automatic
orders prohibiting the sale, transfer or exchange of property during the
pendency of the dissolution proceeding: although the trial court did not
expressly consider, in its memorandum of decision, the application of
the usual course of business exception to the plaintiff’s transactions, the
trial court expressly found that the plaintiff had violated the automatic
orders, which necessarily implied that the court also made the subsidiary
finding that the plaintiff’s conduct did not fall within any exception;
moreover, this court declined to adopt a rule, urged by the plaintiff,
that stock transactions during a dissolution proceeding are always made
in the usual course of business or are presumed to fall within that
exception, such a rule not having been supported by the text of the
automatic orders or having been consistent with their purpose.
4. The trial court’s conclusion that the stock options the plaintiff had exer-
cised were marital property subject to distribution between the parties
was not clearly erroneous; although the plaintiff’s options did not vest
and were not exercised until after the dissolution of the parties’ marriage,
the plaintiff received them during the marriage, and the court reasonably
credited the portion of the plaintiff’s testimony that the options repre-
sented payment for past services.
5. The plaintiff could not prevail on his claim, as an alternative ground for
affirming the Appellate Court’s judgment, that the trial court’s award
of retroactive alimony was improper because it purportedly required
the plaintiff to pay the arrearage out his share of the marital assets,
thereby effectively reducing his share of the property distribution; trial
courts are vested with broad discretion to award alimony and are free
to consider the marital assets distributed to the party paying the alimony
as a potential source of alimony payments, and the court’s property
distribution award in combination with the retroactive alimony award
were not inequitable, as they together were not excessive and reflected
the unequal earnings potential of the parties, the alimony award was
to diminish over time, justifying a greater upfront distribution, and a
significant component of the distribution to the defendant was the trial
court’s remedial award for the plaintiff’s violation of the automatic
orders.
Argued December 14, 2016—officially released June 27, 2017
Procedural History
Action for the dissolution of marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the defendant filed a cross com-
plaint; thereafter, the case was tried to the court, Hon.
Howard T. Owens, Jr., judge trial referee; judgment
dissolving the marriage and granting certain other relief,
from which the plaintiff appealed to the Appellate
Court; subsequently, the court, Hon. Howard T. Owens,
Jr., judge trial referee, granted the defendant’s motion
for attorney’s fees, and the plaintiff filed an amended
appeal; thereafter, the Appellate Court, Sheldon and
West, Js., with Lavine, J., dissenting, reversed in part
the trial court’s judgment and remanded the case for a
new trial on all financial issues; on remand, the court,
Pinkus, J., rendered certain financial orders, and the
plaintiff appealed to the Appellate Court, Beach, Pres-
cott and Bear, Js., which reversed the trial court’s judg-
ment and remanded the case for a new trial on all
financial issues, and the defendant, on the granting of
certification, appealed to this court. Reversed; judg-
ment directed.
Daniel J. Krisch, with whom was Aidan R. Welsh,
for the appellant (defendant).
Daniel J. Klau, for the appellee (plaintiff).
Opinion
PALMER, J. In this certified appeal arising from a
marital dissolution action, we must determine whether
a trial court properly may consider a party’s violation
of a court order when distributing marital property,
even if the trial court finds that the violation is not
contemptuous. The plaintiff, Michael J. O’Brien, filed
this action to dissolve his marriage to the defendant,
Kathleen E. O’Brien. During the pendency of the action,
the plaintiff sold shares of stock and exercised certain
stock options without first receiving permission from
either the defendant or the trial court, as required by
Practice Book § 25-5,1 which also provides that a party
who fails to obey the orders automatically entered
thereunder may be held in contempt of court. The trial
court found that the plaintiff’s transactions violated
those orders but did not hold the plaintiff in contempt
because the court concluded the violations were not
wilful. Nevertheless, because the transactions had
caused a significant loss to the marital estate, the court
considered that loss when it distributed the marital
property between the parties, awarding a greater than
even distribution to the defendant. On appeal, the
Appellate Court concluded that, in the absence of a
finding of contempt, the trial court lacked the authority
to afford the defendant a remedy for the plaintiff’s viola-
tion of the automatic orders. See O’Brien v. O’Brien,
161 Conn. App. 575, 591, 128 A.3d 595 (2015). We there-
after granted the defendant’s petition for certification to
appeal, limited to the following issue: ‘‘Did the Appellate
Court correctly determine that the trial court abused its
discretion when it considered the plaintiff’s purported
violations of the automatic orders in its decision divid-
ing marital assets [even though the court did not hold
the plaintiff in contempt of court for those violations]?’’
O’Brien v. O’Brien, 320 Conn. 916, 131 A.3d 751 (2016).
We agree with the defendant that the trial court properly
exercised its discretion in considering the plaintiff’s
violations of the automatic orders in its division of the
marital assets, and, therefore, we reverse the judgment
of the Appellate Court.
The Appellate Court’s opinion and the record contain
the following undisputed facts and procedural history
relevant to this appeal. The parties were married in
1985 and had three children together, all of whom were
under the age of eighteen when the trial court rendered
the dissolution judgment. See O’Brien v. O’Brien, supra,
161 Conn. App. 578. The parties are each well educated
and have had lucrative careers. See id. The plaintiff
holds a law degree and is employed as senior vice presi-
dent, general counsel, and secretary of Omnicom
Group, Inc. (Omnicom). Id. His base salary is $700,000
per year, and his compensation has also included a cash
bonus of varying amounts and noncash compensation,
usually in the form of stock or stock options. Id. In the
years leading up to the dissolution, the plaintiff’s annual
cash compensation averaged at least $1.2 million, along
with additional noncash compensation. See id. The
defendant holds a college degree and was previously
employed as a managing director for Credit Suisse,
earning more than $1 million annually. Id. She left her
employment in 2003 to devote her time to raising the
parties’ children. Id. The defendant later participated in
a ‘‘returnship’’ program with JP Morgan Chase, earning
about $143,000 annually. Id.
At the time of the dissolution action, the parties’
assets consisted principally of numerous bank and
investment accounts, their principal residence in the
town of Greenwich, a second home, and personal prop-
erty. The plaintiff also held vested shares of Omnicom
stock and unvested Omnicom stock options.
The plaintiff filed the present action in 2008, alleging
that the marriage had irretrievably broken down. See
id., 579 and n.3. He sought a judgment dissolving the
marriage, an equitable division of the marital estate,
and orders regarding child custody and support.
Attached to the plaintiff’s complaint was a copy of
the automatic orders required by Practice Book § 25-5
(d). In accordance with the requirement of § 25-5 (b)
(1), that attachment included the admonition that the
parties were not permitted to ‘‘sell, transfer, exchange,
assign, remove, or in any way dispose of . . . any prop-
erty’’ while the dissolution action was pending without
the prior consent of the other party or the court.
The trial court rendered judgment dissolving the par-
ties’ marriage in September, 2009. The court also
entered custody orders regarding the minor children
and financial orders distributing the marital property
between the parties. In its financial orders, the trial
court effectively awarded 55 percent of the marital
assets to the defendant and 45 percent to the plaintiff.
O’Brien v. O’Brien, supra, 161 Conn. App. 580. These
marital assets included all of the plaintiff’s vested and
unvested Omnicom stock shares and options. See id.,
580 n.4. The trial court also ordered the plaintiff to pay
unallocated alimony and child support to the defendant.
See O’Brien v. O’Brien, 138 Conn. App. 544, 545–46, 53
A.3d 1039 (2012), cert. denied, 308 Conn. 937, 938, 66
A.3d 500 (2013).
The plaintiff appealed from the trial court’s financial
orders, challenging, inter alia, its unallocated alimony
and child support award. Id., 545. The Appellate Court
agreed with the plaintiff’s claim concerning the alimony
and child support award and reversed the trial court’s
judgment as to its financial orders, but did not disturb
the decree dissolving the marriage. See id., 546, 557.
The Appellate Court remanded the case to the trial
court for a new trial on all financial issues. Id., 557.
The parties do not dispute that the appeal stayed the
trial court’s financial orders and that the automatic
orders remained in effect during the pendency of the
appeal.
While the dissolution action or the appeal from the
judgment of dissolution was pending—and while the
automatic orders thus remained in effect—the plaintiff
executed three stock transactions that are the subject
of the present appeal. See O’Brien v. O’Brien, supra,
161 Conn. App. 579, 581. The plaintiff made the first
transaction in February, 2009, one year after filing the
dissolution action but before the dissolution decree
entered in September, 2009. See id., 579. In the first
transaction, the plaintiff sold all of his 28,127 vested
Omnicom shares. Id. He did so without first seeking
the consent of the defendant or the approval of the trial
court. Id. According to the plaintiff, he was concerned
about volatility in the stock market following a market
decline in 2008 and thought that preserving the current
value of the shares through a sale was in the parties’
best, immediate interest. See id. The plaintiff placed
the proceeds from the sale into a bank account and
disclosed the sale to the defendant approximately two
months later when he submitted an updated financial
affidavit.
The plaintiff executed the second and third transac-
tions in 2010 and 2012, respectively, after the original
trial and while the first appeal was pending. See id.,
581. In these two transactions, the plaintiff exercised
a total of 75,000 Omnicom stock options that he had
received as part of his noncash compensation while the
dissolution action was still pending and before the trial
court rendered judgment dissolving the marriage. Id.
The options had vested after the trial court’s dissolution
judgment was rendered but before the Appellate Court
reversed the trial court’s financial orders. See id., 581–
82. He exercised 22,500 options in the first transaction
and 52,500 options in the second transaction. Each time,
the plaintiff immediately converted the options to cash
and retained the cash proceeds in a bank account. As
with his earlier stock sale, the plaintiff did not seek
consent from the defendant or approval from any judi-
cial authority before exercising the options. Id.
On remand, the defendant filed a motion for contempt
with respect to the plaintiff’s transactions. Id., 582. The
defendant asserted that the plaintiff’s transactions vio-
lated the automatic orders because he had sold,
exchanged or disposed of property without prior per-
mission, as required by Practice Book § 25-5 (b) (1).
See id. In her motion, the defendant requested that the
court find the plaintiff in contempt, order the plaintiff to
pay legal fees and costs in connection with the contempt
motion, and award any other relief that the court
deemed appropriate. Id.
At the remand trial in February, 2014, the defendant
presented expert testimony to establish the economic
loss resulting from the plaintiff’s transactions. See id.
The defendant’s expert testified that the stock shares
and options were worth approximately $2.5 million at
the time the plaintiff sold and exercised them, respec-
tively. The expert further testified that, if the plaintiff
had not sold or exercised the shares and options but
instead had retained them, they would have had a value,
as of the date of the retrial, of about $6 million. See id.
Thus, according to the defendant’s expert, the plaintiff’s
decision to sell the shares of stock and exercise his
stock options had caused a net loss to the marital estate
of about $3.5 million. Id.
For his part, the plaintiff admitted that he had not
sought permission to engage in the transactions. He
nevertheless testified that he had consulted with attor-
neys concerning the transactions before executing them
and that he did not believe that he otherwise needed
permission to execute the transactions. The plaintiff
further testified that he thought converting the shares
to cash would best preserve their value in the face of
ongoing market volatility. Id., 579.
After trial following the remand, the trial court issued
a memorandum of decision and new financial orders.
The court first explained that, in crafting its financial
orders, it had considered the testimony and exhibits
presented, along with the required statutory criteria,
set forth in General Statutes § 46b-81,2 governing the
trial court’s distribution of marital property. The court
then turned to its findings of fact. After setting forth
the history of the parties’ marriage and careers, the
court determined that the plaintiff’s earning capacity
exceeded the defendant’s, finding that the plaintiff had
earned at least $1.2 million annually in the years leading
up to the dissolution, compared to $143,000 that the
defendant earned annually. With respect to the marital
assets, the court explained that it had valued them as
of the original date of dissolution. Id., 583. The parties
had agreed to the value of most of the marital assets
in a pretrial stipulation, which the court incorporated
by reference. Id.
With respect to the transactions, the trial court found
that the plaintiff had sold 28,127 shares of Omnicom
stock and exercised 75,000 Omnicom stock options
while the automatic orders were in effect and without
the defendant’s consent or the court’s permission. Id.,
579, 581. Although concluding that the plaintiff’s trans-
actions ‘‘did in fact violate the automatic orders,’’ the
court did not hold the plaintiff in contempt because it
found that the plaintiff had sought the advice of counsel
concerning the transactions, and, consequently, his vio-
lations were not wilful. Nevertheless, the court
explained that the transactions caused ‘‘a significant
loss to the marital estate’’ and that the court had ‘‘taken
into account these transactions in making [its finan-
cial] awards.’’
The trial court then turned to property distribution.
The assets in the marital estate had a value of approxi-
mately $6.5 million.3 The trial court awarded the defen-
dant the principal residence and permitted her to keep
a pension from Credit Suisse, as well as portions of the
parties’ bank and retirement accounts, among other
assets. The total value of the award to the defendant
was approximately $4.4 million. The trial court awarded
the plaintiff portions of the parties’ bank and retirement
accounts, among other assets. The total value of the
award to the plaintiff was approximately $2.1 million.
According to the plaintiff’s accounting, the award
amounted to a 68 percent distribution of the marital
estate to the defendant and a 32 percent distribution
to the plaintiff. The trial court also ordered the plaintiff
to pay the defendant child support and alimony for a
period of twenty-one years, with a reduction in the
amount of alimony every seven years.4
After the trial court issued its new financial orders,
the plaintiff filed a motion for articulation, asking the
court to explain the effect of the plaintiff’s transactions
on the court’s property distribution and how the trial
court had valued the loss that the transactions caused
to the marital estate. In an articulation, the trial court
explained that ‘‘financial orders in dissolution proceed-
ings 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 [sale] 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 fam-
ily home and her pension from Credit Suisse, as well
as the equitable division of all of the other assets of
the parties.’’ (Citation omitted.) As for the loss to the
estate, the trial court explained that it had credited the
testimony of the defendant’s expert. The court thus
determined that, if the plaintiff had not sold the shares
and exercised the stock options when he did but,
instead, had retained them as contemplated by the auto-
matic orders, they would have been worth about $3.5
million more at the time of the trial following remand
when compared to their value at the time that the plain-
tiff actually sold or exercised them.
The plaintiff appealed to the Appellate Court, which
reversed the trial court’s financial orders. See O’Brien
v. O’Brien, supra, 161 Conn. App. 577, 593. Among other
claims, the plaintiff asserted that the trial court improp-
erly had considered the transactions when fashioning
its orders. See id., 587–88. The plaintiff argued that,
even if his actions technically violated the automatic
orders, the trial court improperly held his actions
against him when distributing the property because he
had not been found in contempt and did not otherwise
intentionally dissipate the assets or cause any legally
cognizable harm. See id., 588–89.
The Appellate Court agreed with the plaintiff, con-
cluding that the plaintiff’s violations of the automatic
orders could be considered by the court only if they
rose to the level of contempt or a dissipation of marital
assets. Id., 589. The court explained that, ‘‘even if the
plaintiff technically violated the automatic orders when
he sold stock and exercised options during the pen-
dency of the dissolution action without permission . . .
the resulting sanction 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. 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. Second, 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.’’ (Footnote omitted.) Id.
Concerning the trial court’s contempt powers, the
Appellate Court further explained that ‘‘[j]udicial sanc-
tions 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
sustained. . . . [If] compensation is intended, a fine is
imposed, payable to the complainant.’’ (Internal quota-
tion marks omitted.) Id., 590. Because, however, the
trial court had not found the plaintiff in contempt, the
Appellate Court concluded that the trial court had ‘‘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 plaintiff’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.’’ Id., 591.
With respect to the trial court’s authority to consider
dissipation under § 46b-81, the Appellate Court noted
that the trial court had not made a finding of dissipation,
and that such a finding would be unwarranted in the
present case because, as this court explained in Gersh-
man v. Gershman, 286 Conn. 341, 348, 351, 943 A.2d
1091 (2008), ‘‘[p]oor investment decisions, without
more, generally do not give rise to a finding of dissipa-
tion. . . . [A]t 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.’’ (Citation omitted; internal
quotation marks omitted.) O’Brien v. O’Brien, supra,
161 Conn. App. 592.
Because the trial court had not found contempt or
dissipation, the Appellate Court concluded that the trial
court did not have the authority to compensate the
defendant for the plaintiff’s transactions, even though
those transactions had violated the automatic orders.
Id., 593. The Appellate Court reversed the trial court’s
judgment with respect to its financial orders and
remanded the case for a new hearing on all financial
matters. Id.
We then granted the defendant’s petition for certifica-
tion to decide whether the Appellate Court correctly
concluded that the trial court should not have consid-
ered the plaintiff’s violations of the automatic orders
in its division of the marital assets because the court had
not held the plaintiff in contempt for those violations.
O’Brien v. O’Brien, supra, 320 Conn. 916. We answer
the certified question in the negative. The plaintiff also
has raised three alternative grounds for affirming the
Appellate Court’s judgment, all of which we reject.
I
We begin with the certified question. The defendant
claims that the Appellate Court incorrectly concluded
that the trial court lacked the authority to afford her a
remedy for the plaintiff’s violations of the automatic
orders in the absence of a contempt finding. In support
of this claim, the defendant contends that the trial court
has the power to consider the plaintiff’s actions under
§ 46b-81, which governs a trial court’s distribution of
marital assets in a dissolution proceeding and empow-
ers the trial court to divide marital assets between the
parties upon consideration of ‘‘the contribution of each
of the parties in the acquisition, preservation or
appreciation in value of’’ the marital assets. (Emphasis
added.) General Statutes § 46b-81 (c). The defendant
further contends that the plaintiff’s unilateral decision
to swap a substantial equity stake—along with its poten-
tial for increase in value and dividends—for an asset
like cash is the antithesis of preservation and apprecia-
tion, and thus may be considered by a court when it
divides property under the statute.
We agree with the defendant that the trial court had
the authority to consider the plaintiff’s transactions
when distributing the marital property, but for reasons
different from those advanced by the defendant.
Applying plenary review to this question of law; see,
e.g., Maturo v. Maturo, 296 Conn. 80, 88, 995 A.2d 1
(2010); we conclude in part I A of this opinion that a
trial court possesses inherent authority to make a party
whole for harm caused by a violation of a court order,
even when the trial court does not find the offending
party in contempt. In part I B of this opinion, we con-
clude that the trial court properly exercised that author-
ity in the present case.5
A
It has long been settled that a trial court has the
authority to enforce its own orders. This authority
arises from the common law and is inherent in the
court’s function as a tribunal with the power to decide
disputes. Papa v. New Haven Federation of Teachers,
186 Conn. 725, 737–38, 444 A.2d 196 (1982). The court’s
enforcement power is necessary to ‘‘preserve its dignity
and to protect its proceedings.’’ (Internal quotation
marks omitted.) Allstate Ins. Co. v. Mottolese, 261 Conn.
521, 530, 803 A.2d 311 (2002); see also Middlebrook v.
State, 43 Conn. 257, 268 (1876) (‘‘[a] court of justice
must of necessity have the power to preserve its own
dignity and protect itself’’). A party to a court proceed-
ing must obey the court’s orders unless and until they
are modified or rescinded, and may not engage in ‘‘self-
help’’ by disobeying a court order to achieve the party’s
desired end. (Internal quotation marks omitted.)
Sablosky v. Sablosky, 258 Conn. 713, 719–20, 784 A.2d
890 (2001); see also Tyler v. Hamersley, 44 Conn. 393,
412 (1877) (‘‘[e]very court must of necessity possess
the power to enforce obedience to its lawful orders’’);
Rocque v. Design Land Developers of Milford, Inc., 82
Conn. App. 361, 366, 844 A.2d 882 (2004) (‘‘[t]he inter-
ests of orderly government demand that respect and
compliance be given to orders issued by courts pos-
sessed of jurisdiction of persons and subject matter’’
[internal quotation marks omitted]), quoting United
States v. United Mine Workers of America, 330 U.S.
258, 303, 67 S. Ct. 677, 91 L. Ed. 884 (1947).
The court has an array of tools available to it to
enforce its orders, the most prominent being its con-
tempt power.6 Our law recognizes two broad types of
contempt: criminal and civil. See, e.g., DeMartino v.
Monroe Little League, Inc., 192 Conn. 271, 278, 471 A.2d
638 (1984). The two are distinguished by the type of
penalty imposed. See, e.g., In re Jeffrey C., 261 Conn.
189, 197–98, 802 A.2d 772 (2002); McTigue v. New Lon-
don Education Assn., 164 Conn. 348, 352–53, 321 A.2d
462 (1973). A finding of criminal contempt permits the
trial court to punish the violating party, usually by
imposing an unconditional fine or a fixed term of impris-
onment. See, e.g., General Statutes § 51-33a. Criminal
contempt penalties are punitive in nature and employed
against completed actions that defy ‘‘the dignity and
authority of the court.’’ (Internal quotation marks omit-
ted.) In re Jeffrey C., supra, 197. Civil contempt, by
contrast, is not punitive in nature but intended to coerce
future compliance with a court order, and ‘‘the contem-
nor should be able to obtain release from the sanction
imposed by the court by compliance with the judicial
decree.’’ Connolly v. Connolly, 191 Conn. 468, 482, 464
A.2d 837 (1983). A civil contempt finding thus permits
the court to coerce compliance by imposing a condi-
tional penalty, often in the form of a fine or period of
imprisonment, to be lifted if the noncompliant party
chooses to obey the court. See id.
To impose contempt penalties, whether criminal or
civil, the trial court must make a contempt finding, and
this requires the court to find that the offending party
wilfully violated the court’s order; failure to comply
with an order, alone, will not support a finding of con-
tempt. See, e.g., Marshall v. Marshall, 151 Conn. App.
638, 650, 97 A.3d 1 (2014). Rather, ‘‘to constitute con-
tempt, a party’s conduct must be wilful.’’ Eldridge v.
Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). ‘‘A
good faith dispute or legitimate misunderstanding’’
about the mandates of an order may well preclude a
finding of wilfulness. (Internal quotation marks omit-
ted.) Sablosky v. Sablosky, supra, 258 Conn. 718.
Whether a party’s violation was wilful depends on the
circumstances of the particular case and, ultimately, is
a factual question committed to the sound discretion
of the trial court. Id. Without a finding of wilfulness, a
trial court cannot find contempt and, it follows, cannot
impose contempt penalties.
But a trial court in a contempt proceeding may do
more than impose penalties on the offending party; it
also may remedy any harm to others caused by a party’s
violation of a court order. When a party violates a court
order, causing harm to another party, the court may
‘‘compensate the complainant for losses sustained’’ as
a result of the violation. (Internal quotation marks omit-
ted.) DeMartino v. Monroe Little League, Inc., supra,
192 Conn. 278. A court usually accomplishes this by
ordering the offending party to pay a sum of money to
the injured party as ‘‘special damages . . . .’’ (Internal
quotation marks omitted.) Id., 279.
Unlike contempt penalties, a remedial award does not
require a finding of contempt. Rather, ‘‘[i]n a contempt
proceeding, even in the absence of a finding of con-
tempt, a trial court has broad discretion to make whole
any party who has suffered as a result of another party’s
failure to comply with a court order.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Clement v.
Clement, 34 Conn. App. 641, 647, 643 A.2d 874 (1994);
see also Brody v. Brody, 153 Conn. App. 625, 636, 103
A.3d 981, cert. denied, 315 Conn. 910, 105 A.3d 901
(2014); Nelson v. Nelson, 13 Conn. App. 355, 367, 536
A.2d 985 (1988). Because the trial court’s power to
compensate does not depend on the offending party’s
intent, the court may order compensation even if the
violation was not wilful. See, e.g., Clement v. Clement,
supra, 646–47; cf. DeMartino v. Monroe Little League,
Inc., supra, 192 Conn. 279 (‘‘[s]ince the purpose is reme-
dial, it matters not with what intent the [offending party]
did the prohibited act’’ [internal quotation marks
omitted]).
Following this principle, the Appellate Court has
upheld compensatory awards imposed in contempt pro-
ceedings even when the trial court did not make a
contempt finding. For example, in Clement v. Clement,
supra, 34 Conn. App. 641, one party failed to make
payments on a home mortgage loan, in violation of a
court order, which led to a foreclosure and a loss of
equity in the home. See id., 643–44 and n.2. The trial
court ultimately vacated an earlier contempt finding
but nevertheless declined to vacate a compensatory
award equal to the lost equity. Id., 646. The Appellate
Court affirmed, explaining that a trial court ‘‘has broad
discretion to make whole any party who has suffered
as a result of another party’s failure to comply with [a]
court order’’ and may do so ‘‘even in the absence of a
finding of contempt . . . .’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Id., 647. And in McGuire
v. McGuire, 102 Conn. App. 79, 81, 924 A.2d 886 (2007),
a court order required the parties to a dissolution pro-
ceeding to sell their marital home. When one party
delayed the closing date, causing a contract for sale to
fall through, the trial court did not find contempt but
nevertheless ordered the delaying party to pay the other
party compensation for the delay. See id., 81–82. On
appeal, the Appellate Court, consistent with prior prece-
dent, concluded that a trial court need not find con-
tempt before compensating a party harmed by the vio-
lation of a court order. Id., 88–89.
We cited this principle with approval in AvalonBay
Communities, Inc. v. Plan & Zoning Commission, 260
Conn. 232, 243, 796 A.2d 1164 (2002), and again in New
Hartford v. Connecticut Resources Recovery Authority,
291 Conn. 489, 501 n.20, 970 A.2d 570 (2009). In Ava-
lonBay Communities, Inc., for instance, we explained
that, ‘‘[i]t would defy common sense to conclude that,
merely because a party’s violation of a court order was
not wilful, the trial court is deprived of its authority to
enforce the order.’’ AvalonBay Communities, Inc. v.
Plan & Zoning Commission, supra, 241–42.
The Appellate Court’s reasoning and result in the
present case are inconsistent with these decisions. The
Appellate Court recognized that a court might compen-
sate a party harmed by a violation of a court order,
including by reducing the party’s share of the marital
assets, but only if the court found the offending party
in contempt. See O’Brien v. O’Brien, supra, 161 Conn.
App. 591. According to the Appellate Court, ‘‘[h]aving
determined that the plaintiff’s transactions were not
contumacious . . . the [trial] court lost its authority
pursuant to its contempt powers to take any remedial
action against the plaintiff’’ and in favor of the defen-
dant. Id. In light of the decisions from this court and the
Appellate Court holding to the contrary, the Appellate
Court’s conclusion in the present case cannot stand.
Parties subject to a court order are bound to follow it
and reasonably may rely on an expectation that other
parties will also obey the order. Irrespective of whether
a violation is wilful, the party violating a court order
properly may be held responsible for the consequences
of the violation. To hold otherwise would shift the cost
of the violation to the innocent party.
We therefore conclude that, although the trial court
could not punish the plaintiff because it had not found
him in contempt, the court nevertheless properly deter-
mined that it could compensate the defendant for any
losses caused by the plaintiff’s violations of the auto-
matic orders. The plaintiff’s transactions—in which he
sold and exchanged stock shares and options for cash—
plainly violated the automatic orders, which expressly
provide that, while the dissolution proceedings are
pending, no party shall ‘‘sell, transfer, [or] exchange’’
any property without permission from the other party
or the court. Practice Book § 25-5 (b) (1). The automatic
orders are intended to ‘‘keep the financial situation of
the parties at a status quo during the pendency of the
dissolution action.’’ Ferri v. Powell-Ferri, 317 Conn.
223, 232, 116 A.3d 297 (2015). Allowing parties to sell,
exchange, or dispose of assets while a dissolution
action is pending, and without permission of the other
party or the court, would frustrate the trial court’s abil-
ity to determine which of the parties’ property consti-
tuted marital property and to distribute the marital
assets fairly between the parties. In the present case,
the plaintiff’s transactions, made without proper per-
mission, disrupted the status quo and prevented the
trial court from determining the proper disposition of
the stock shares and options, in violation of the auto-
matic orders.
Even if the plaintiff did not intend to violate the
court’s order, if his unilateral decision to sell the shares
and exercise the options caused a loss to the marital
estate—and in turn to the defendant—then the trial
court was justified in determining that the plaintiff
should bear the losses. To be sure, the plaintiff may not
have appreciated the extent of the harm his transactions
might cause in the future. And, ordinarily, a party in a
dissolution proceeding is not responsible for poor or
shortsighted business decisions concerning marital
assets. See Gershman v. Gershman, supra, 286 Conn.
346–47. But, in the present case, the plaintiff’s transac-
tions were not just questionable investment decisions;
they also violated a court order. Even if the court order
imposes a burden on a party, or the party believes his
actions are otherwise justified, the party may not act
unilaterally in contravention of the order. See, e.g.,
Sablosky v. Sablosky, supra, 258 Conn. 719–20. More-
over, if the plaintiff in the present case did not wish to
bear sole responsibility for the potential risks of his
actions, he should not have engaged in self-help by
selling the stocks and exercising the options without
first consulting the defendant or the court. Because
the defendant had no say in the transactions that the
plaintiff executed, the trial court acted within its discre-
tion when it determined that the plaintiff had violated
the automatic orders and that he should bear any losses
caused by his actions.
We also conclude that the trial court acted properly
in remedying the defendant’s loss of her share of the
marital estate by adjusting in her favor the distribution
of the marital assets. Even though the trial court’s prop-
erty distribution is governed by § 46b-81, and providing
a remedy for a violation of a court order is not one of
the enumerated statutory factors, the trial court never-
theless had the discretion to remedy the plaintiff’s viola-
tions of a court order through its distribution of the
parties’ marital property. See Robinson v. Robinson,
187 Conn. 70, 71–72, 444 A.2d 234 (1982) (‘‘Although
created by statute, a dissolution action is essentially
equitable in nature. . . . The power to act equitably is
the keystone to the court’s ability to fashion relief in
the infinite variety of circumstances [that] arise out of
the dissolution of a marriage.’’ [Citation omitted; inter-
nal quotation marks omitted.]). The trial court could
have distributed the marital assets pursuant to § 46b-
81 and then separately ordered the plaintiff to issue a
distinct payment to the defendant pursuant to its inher-
ent authority. See Clement v. Clement, supra, 34 Conn.
App. 643–44; cf. DeMartino v. Monroe Little League,
Inc., supra, 192 Conn. 278–79. The trial court, exercising
its equitable discretion, instead combined these two
steps into one, a method that is not without precedent.
See, e.g., Greenan v. Greenan, 150 Conn. App. 289, 303,
91 A.3d 909 (upholding trial court’s remedy for violation
of court order and noting that trial court had ‘‘taken the
plaintiff’s [violation] into consideration in fashioning its
[financial] orders’’ instead of issuing ‘‘a specific order to
restore the funds’’ lost from violation [internal quotation
marks omitted]), cert. denied, 314 Conn. 902, 99 A.3d
1167 (2014). Whether the trial court in the present case
had ordered a payment separate from the property dis-
tribution or effected the payment as part of the property
distribution, as it did, is a difference of form, not sub-
stance. The result of either method would be the same—
each ultimately transfers funds to cover the value of
the defendant’s loss from the plaintiff to the defendant.
We conclude, therefore, that the trial court properly
exercised its discretion in affording the defendant a
remedy by adjusting the property distribution to
account for the loss.
B
The plaintiff claims that the trial court’s award is
nevertheless erroneous because it was based on an
improper method for valuing the loss to the marital
estate, rendering it excessive. We disagree.
If a trial court elects to make whole a party injured
by another party’s violation of a court order, any award
it makes must be reasonable in light of the harm to the
injured party. A trial court has the equitable discretion
to choose whether to provide a remedy in the first place
and to determine the amount of any remedial award
in light of the specific circumstances of the case. See
Clement v. Clement, supra, 34 Conn. App. 647; see also
AvalonBay Communities, Inc. v. Plan & Zoning Com-
mission, supra, 260 Conn. 243. ‘‘The essential goal’’ in
making a remedial award ‘‘is to do rough justice, not
to achieve auditing perfection,’’ and, thus, the award
may be based on reasonable estimations of the harm
caused and the trial court’s own ‘‘superior understand-
ing of the litigation . . . .’’ (Internal quotation marks
omitted.) Goodyear Tire & Rubber Co. v. Haeger,
U.S. , 137 S. Ct. 1178, 1187, 197 L. Ed. 2d 585 (2017).
The trial court’s discretion, however, is not limitless.
If the court elects to provide a remedial award, then
the value of the award may not exceed the reasonable
value of the injured party’s losses. DeMartino v. Monroe
Little League, Inc., supra, 192 Conn. 279. Although a
trial court may choose to award less under the circum-
stances of a particular case, a decision to order an
award greater than the party’s loss would exceed the
award’s remedial purpose. See id.; see also Goodyear
Tire & Rubber Co. v. Haeger, supra, 1186 (trial court’s
‘‘award may go no further than to redress the wronged
party for losses sustained; in may not impose an addi-
tional amount as punishment for the sanctioned party’s
misbehavior’’ [internal quotation marks omitted]). In
such a case, the excess instead serves merely to punish
the offending party, a sanction that, as we have
explained, requires a finding of contempt and thus likely
would constitute an abuse of the trial court’s discretion.
See part I A of this opinion.
Moreover, the trial court’s conclusions concerning
the appropriate remedial award must be based on evi-
dence presented to the court. Nelson v. Nelson, supra,
13 Conn. App. 367. The court must therefore allow the
parties to present evidence concerning the loss and the
proper amount of compensation, and to cross-examine
adverse witnesses. Id. As with any other factual determi-
nation, the trial court’s findings must be supported by
the evidence. Id.
In the present case, the trial court determined the
amount of the loss after a trial at which the parties
were each afforded the opportunity to present evidence
concerning the extent of the loss, and the defendant
adduced testimony from an expert witness. The plain-
tiff’s counsel cross-examined the defendant’s expert
and also had the opportunity to call witnesses on behalf
of the plaintiff but did not do so. The trial court further
entertained argument on the issue.
After considering the parties’ positions, the trial court
credited the testimony of the defendant’s expert and
found that the transactions caused a net loss to the
marital estate of $3.5 million. The court arrived at that
amount by looking to the difference between (1) the
value of the stock shares and options at the time the
plaintiff either sold or exercised them, and (2) the value
the shares and options would have had at the time of
the trial following remand, when the shares or options
would have been distributed, if the plaintiff had not
sold or exercised them in violation of the automatic
orders. The trial court determined that the shares and
options had a total value of $2,562,190 when the plaintiff
sold or exercised them and that, if the plaintiff had not
done so, they would have had a value of $6,093,019 at
the time of the trial. Taking the difference between
these two values, the trial court found that the plaintiff’s
transactions had caused a net loss of approximately
$3.5 million in value to the marital estate.
The defendant, however, was not necessarily entitled
to be compensated for the full $3.5 million loss to the
marital estate. Because that value reflected the loss
amount to the entire marital estate, and not just the
defendant’s share, she presumably should have
received no more than the losses fairly attributable to
her share of the marital estate. Thus, the defendant’s
counsel acknowledged during closing argument that if,
for example, the court awarded the defendant 55 per-
cent of the marital assets, including the stock shares
and options, she would be entitled to compensation for
no more than 55 percent of the total losses to the marital
estate.7 The defendant’s counsel also acknowledged
that the amount of any remedial award should be
adjusted for the taxes that would have been paid on
any subsequent sale of the stock and exercise of the
options, which was not reflected in the expert’s valua-
tion of the stock shares. In light of these factors, and
the plaintiff’s own valuations of the marital assets dis-
tributed, it is apparent that the trial court fairly deter-
mined the loss to the estate to be $3.5 million and
that its adjustment of the distribution in favor of the
defendant did not exceed the defendant’s reasonable
share of the loss resulting from the unauthorized trans-
actions.8
Nevertheless, the plaintiff claims that the trial court
improperly determined that the loss to the marital estate
was $3.5 million. He claims that the trial court was
required to calculate the loss to the marital estate by
considering the value that the stock shares and options
would have had on the date of the dissolution decree,
September, 2009, rather than at the time of the remand
trial in February, 2014. For support, he relies on Sun-
bury v. Sunbury, 216 Conn. 673, 583 A.2d 636 (1990),
in which we determined that a trial court issuing new
property distribution orders on remand from an appel-
late court must divide the marital assets based on their
value as of the original date of the dissolution decree,
rather than based on their value at the time of any trial
after remand. Id., 674, 676. We explained that, when
dividing property pursuant to § 46b-81, ‘‘[i]n the absence
of any exceptional intervening circumstances occurring
in the meantime, [the] date of the granting of the divorce
would be the proper time as of which to determine the
value of the estate of the parties [on] which to base the
division of property. . . . An increase in the value of
the property following a dissolution does not constitute
such an exceptional intervening circumstance.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id., 676.
Seizing on our conclusion in Sunbury, the plaintiff
asks us to extend its reasoning to instances in which,
as in the present case, the trial court is not valuing
marital property for the purpose of distributing it under
§ 46b-81 but, rather, determining the proper remedy for
a violation of a court order. Because the trial court
effected the remedial award by adjusting its property
distribution, the plaintiff argues that Sunbury applied
to the trial court’s remedial award and barred the court
from considering the value that the stock shares and
options would have had as of the time of the trial follow-
ing remand, if the plaintiff had not sold or exercised
them. Instead, he argues, the court should have looked
to their value as of the dissolution date and determined
the harm to the marital estate using that value. He also
maintains that, because the trial court did not make
any findings about the value of the stock shares and
options as of the date of dissolution, a new hearing on
all financial issues is required.
We disagree that Sunbury applies to the trial court’s
decision to remedy the plaintiff’s violations of its orders.
As the plaintiff tacitly admits in his brief to this court,
Sunbury applies to the distribution of marital property
between spouses pursuant to § 46b-81 but does not
purport to place limits on the trial court’s inherent
authority to make a party whole when another party
has violated a court order. Sunbury therefore did not
limit the discretion of the trial court in the present case
to consider the present value of the stocks and options
when fashioning an appropriate remedy.9 In considering
how to make the defendant whole for the violation
pursuant to its inherent authority, the trial court was
justified in looking beyond the value of the stocks and
options on the date of dissolution and, instead, to the
value the defendant might actually have received from
any stocks and options the court could have distributed
to the defendant at the time of trial on remand. The
trial court’s decision in the present case to effect its
remedial award by adjusting the distribution, rather
than by ordering the plaintiff to make a separate pay-
ment, does not alter the fact that its remedial award
was made pursuant to its inherent authority, not § 46b-
81. Thus, our holding in Sunbury does not apply to the
trial court’s remedial award.
The plaintiff further contends that, if Sunbury does
not apply, the trial court should have valued the loss
to the defendant by using the value the stocks and
options would have had on the date of the violations,
not the date of the trial following remand. Borrowing
from principles of contract law, the plaintiff asserts
that the defendant’s damages should be calculated by
looking only to the losses the defendant incurred as of
the date of the breach, without regard to any later
change in the value of the stocks and options. Thus,
the plaintiff agrees that if, for example, he had sold the
stock for less than fair market value at the time he sold
it, he might be responsible to the defendant for the loss,
but, because he exchanged the stock for its fair market
value in cash, he argues that there was no cognizable
loss to the estate on the date of the breach and, as a
result, no basis for a remedial award to the defendant.
The plaintiff contends that determining loss by looking
to the stock value at the time of the trial on remand
entails the use of an arbitrary date in time to fix the
value because that value fluctuates daily.
We disagree that assessing the value of the stocks
and options at the time of the remand trial was arbitrary
or irrational. At the time of that trial, the court could
determine with certainty the precise value of the loss to
the marital estate caused by the plaintiff’s transactions.
The defendant rightfully expected that the plaintiff
would obey the automatic orders and that the stocks
and options would remain in the marital estate until
distributed to the parties by the court following a trial
on remand. If the plaintiff had not sold the stock or
exercised the options, and the trial court divided the
marital assets between the parties, including the stocks
and options, the defendant would have enjoyed the
benefit of any increase in their value. The plaintiff,
however, unilaterally removed the stocks and options
from the marital estate, preventing the court from dis-
tributing them in the form of stocks and options, and
thus depriving the defendant of the opportunity to bene-
fit from the increase in their value. Lacking the stocks
and options to distribute, the court essentially awarded
the defendant the value that her putative share of the
stocks and options would have had at the time of the
remand trial, putting the plaintiff in precisely the posi-
tion she would have occupied at that time if the plaintiff
had not violated the automatic orders. At that point,
through its remedial award, the trial court made the
value of the defendant’s share of the marital estate
whole against the losses caused by the plaintiff’s viola-
tions. Certainly, the value of the stocks and options
would fluctuate over time, meaning that the value
required to make the defendant whole on a particular
day would also fluctuate. But the trial court was entitled
to put the defendant in the position she would have
occupied in the absence of the plaintiff’s violations of
the automatic orders. As we previously observed, if the
plaintiff did not wish to risk being held solely responsi-
ble for changes in the value of the stocks and options,
he should not have sold the stock and exercised the
options without proper authorization. In these circum-
stances, the trial court properly used the date of the
remand trial to value the loss to the marital estate
caused by the plaintiff’s transactions.10
For these reasons, we conclude that the Appellate
Court incorrectly determined that the trial court had
lacked the authority to make the defendant whole for
the plaintiff’s violations of the automatic orders. We
further conclude that the trial court’s exercise of that
authority was proper.
II
In light of our conclusions in part I of this opinion, we
next consider whether the Appellate Court’s judgment
may nevertheless be affirmed on one of three alternative
grounds raised by the plaintiff. The first two concern
the plaintiff’s violations of the automatic orders and
the third involves the trial court’s award of retroac-
tive alimony.
A
The plaintiff first claims that his stock and option
transactions did not violate the automatic orders estab-
lished under Practice Book § 25-5 because they fall
within the exception for transactions made ‘‘in the usual
course of business . . . .’’ Practice Book § 25-5 (b) (1).
The plaintiff argues that the trial court must have
ignored the exception because it did not explicitly
address the exception in its memorandum of decision.
The plaintiff asserts that, in light of the trial court’s
failure to address this exception explicitly, the court’s
decision must be read as concluding that stock transac-
tions can never fall within a person’s usual course of
business, a determination contrary to the plain language
of § 25-5 (b) (1). We disagree that the trial court ignored
this exception and conclude instead that the trial court
implicitly determined that the exception does not apply.
The following additional facts and procedural history
are relevant to our resolution of this issue. At trial, the
defendant called an expert to quantify the economic
loss to the marital estate incurred by the plaintiff’s
transactions, and the plaintiff’s counsel objected to the
testimony as irrelevant. While arguing the objection,
the plaintiff’s counsel suggested that the transactions
did not violate the automatic orders, claiming they fell
within the usual course of business exception inasmuch
as the plaintiff believed he was making a ‘‘prudent busi-
ness’’ decision at the time. The trial court rejected this
argument, responding that the plaintiff was ‘‘not in the
business. If he were a used car dealer and sold a car
in his lot, or if he were a boat salesman and sold a boat,
he can do that. That’s the ordinary course of business.’’
After brief additional argument, the trial court overruled
the objection and permitted the defendant’s expert to
testify.
In its memorandum of decision, the trial court found
that the plaintiff had violated the automatic orders,
explaining its finding as follows: ‘‘During the pendency
of the action, and while the automatic orders were in
effect, the plaintiff sold 28,127 shares of Omnicom . . .
stock and exercised 75,000 Omnicom . . . stock
options without court order or consent from the defen-
dant. . . . The result of the sales was a significant loss
to the marital estate. The court finds that these transac-
tions did in fact violate the automatic orders.’’
Although the trial court did not explicitly state that
it had found that the usual course of business exception
was inapplicable in the present case, the lack of an
express finding on this point is of no moment. When
construing a trial court’s memorandum of decision,
‘‘[e]ffect must be given to that which is clearly implied as
well as to that which is expressed.’’ (Internal quotation
marks omitted.) Wheelabrator Bridgeport, L.P. v.
Bridgeport, 320 Conn. 332, 355, 133 A.3d 402 (2016).
When, as in the present case, a trial court makes an
ultimate finding of fact, we presume, in the absence of
evidence to the contrary, that the court also made the
subsidiary findings necessary to support its ultimate
finding. See, e.g., Sosin v. Sosin, 300 Conn. 205, 244–45
n.25, 14 A.3d 307 (2011) (noting that subsidiary finding
of wrongful conduct is implicit in trial court’s award
of compensatory interest under General Statutes § 37-
3a); Bornemann v. Bornemann, 245 Conn. 508, 526,
752 A.2d 978 (1998) (explaining that trial court implicitly
must have found that stock options were marital prop-
erty when court distributed options between parties).
In the present case, the trial court expressly found
that the plaintiff had violated the automatic orders,
which necessarily implies that the court also made a
subsidiary finding that the plaintiff’s conduct did not
fall within any exception. Moreover, even if there were
any doubt, arising from the trial court’s memorandum
of decision, as to whether the court considered the
exception, it would be dispelled by the court’s consider-
ation and rejection of the exception in overruling the
plaintiff’s objection to the defendant’s proffered expert
testimony. We therefore disagree that the trial court
ignored the exception or failed to determine whether
it applied.11
The plaintiff nevertheless contends that, even if the
trial court rejected his claim that the exception applied,
this court should adopt one of two rules concerning
stock transactions during a dissolution proceeding. He
first argues for a bright line rule that stock sales are
always made in the usual course of business and thus
not subject to the automatic orders. As an alternative
to this categorical rule, he urges us to adopt a rule
presuming that stock sales fall within the usual course
of business exception.
We decline to adopt either of these proposed rules
because they are not supported by the text of the auto-
matic orders set forth in Practice Book § 25-5. Those
orders govern the transaction of ‘‘any property’’ and
make no exception for transactions concerning certain
types of assets, including stocks. Practice Book § 25-5
(b) (1). Instead, whether a particular transaction has
been conducted in the usual course of business presents
a question of fact, to be determined by looking to the
circumstances of each case. See Quasius v. Quasius,
87 Conn. App. 206, 208, 866 A.2d 606 (reviewing trial
court’s finding concerning usual course of business
exception for abuse of discretion because trial court is
‘‘in the best position to assess all of the circumstances
surrounding a dissolution action’’ [internal quotation
marks omitted]), cert. denied, 274 Conn. 901, 876 A.2d
12 (2005). Whether a transaction is conducted in the
usual course of business does not turn solely on the type
of asset or transaction but on whether the transaction at
issue was ‘‘a continuation of prior activities’’ carried
out by the parties before the dissolution action was
commenced.12 (Emphasis in original.) Id.
The plaintiff’s proposed rules are also inconsistent
with the purpose of the automatic orders. The status
quo at the commencement of the litigation and the
parties’ usual course of business will vary significantly
from case to case. A one size fits all rule or presumption
will not accurately capture the status quo or usual
course for all parties in the myriad of dissolution cases
filed in our courts. The regular sale of stocks might be
usual for a professional stock trader but unusual for
someone who invests in stock funds through a retire-
ment account, had not previously sold any of the stocks,
and had no preexisting plan to sell those stocks until
retirement. Moreover, a rule allowing a party either
unconditional or presumptive permission to sell stocks
without restraint would be subject to abuse. Significant
stock sales have the potential to alter the character of
a marital estate and might expose the other party to
unwanted financial or tax consequences. For these rea-
sons, determining a party’s usual course of business is
best treated as a question of fact to be decided by the
trial court, unfettered by rules or guidelines that may
or may not be appropriate under the unique circum-
stances of a particular case.
B
The plaintiff next claims the trial court incorrectly
concluded that the stock options that he had exercised
were marital property, subject to distribution between
the parties. We again disagree.13
Certain additional facts are necessary to our determi-
nation of this claim. The plaintiff received the options
at issue in March, 2009, after filing the dissolution action
but approximately six months before the trial court
rendered judgment dissolving the parties’ marriage in
September, 2009. See O’Brien v. O’Brien, supra, 161
Conn. App. 581. The options did not vest until after
the entry of the dissolution decree, with one group of
options vesting in 2010, and the remainder in 2012. See
id. The plaintiff exercised the options in two groups
after they had vested, converting the options to cash. Id.
At the trial on remand, the plaintiff testified about
the purpose of the options. He initially testified that
the options ‘‘are not compensatory’’ and ‘‘are not
earned,’’ but are issued solely as retention incentives
to employees ‘‘so that they stay at the company until
. . . [the options] vest.’’ Shortly thereafter, however,
he clarified that the options had been awarded as com-
pensation for his performance in the prior year, 2008,
but that the options had a retentive component because
they vested over time to create an incentive for him to
stay with the company.
In its memorandum of decision, the trial court found
that the options were marital property, explaining that,
although ‘‘the options had not yet vested at the time
of the original trial, they were awarded prior to the
dissolution,’’ and that the exercise of the options caused
‘‘a significant loss to the marital estate.’’ The plaintiff
challenges the court’s determination that the options
were marital property because, although they were
awarded while the parties were still married, they did
not vest until 2010 and thereafter, following the dissolu-
tion of the marriage in 2009. He further argues that
they were not granted as compensation for any services
performed during the marriage but were solely an incen-
tive to remain employed until the time the options had
vested. For these reasons, he contends that the
unvested options were not marital property subject to
distribution between the parties, and, consequently, the
defendant could not have suffered any cognizable loss
by virtue of his decision to exercise them.14
Unvested stock options may be considered marital
property if they are earned during the marriage. See
Bornemann v. Bornemann, supra, 245 Conn. 525. If
they are awarded as compensation for services per-
formed during the marriage, unvested options may
properly be considered marital property, even if they
will not vest until after the marriage is dissolved. See
id. If unvested options are awarded for future services
to be performed after the dissolution, however, then
they are not considered marital property. See id., 524–
25. Determining when the options were earned, and
whether they are for predissolution or postdissolution
services, poses a question of fact for the trial court,
and this court must accept the finding unless it is clearly
erroneous. Id., 527.
In the present case, the record supports the trial
court’s finding that the plaintiff’s options were marital
property. The plaintiff’s testimony about the purpose of
the options award was conflicting: although he initially
testified that they were exclusively a retention incentive
for future services to be performed after the marriage
was dissolved, he later testified that they were compen-
sation for past services but that they had a delayed
vesting schedule to encourage him to stay employed
with Omnicom. The court apparently credited his testi-
mony that the options represented payment for past
services and did not credit his earlier assertion to the
contrary. The trial court had the opportunity to observe
the testimony firsthand and to evaluate the witness’
attitude, candor, and demeanor while he was testifying.
As the finder of fact, the trial court was free to credit
all or any portion of the plaintiff’s testimony.15 See, e.g.,
State v. Andrews, 313 Conn. 266, 323, 96 A.3d 1199
(2014) (‘‘[i]t is the exclusive province of the trier of fact
to weigh conflicting testimony and make determina-
tions of credibility, crediting some, all or none of any
given witness’ testimony’’ [internal quotation marks
omitted]). Because the court’s finding that the options
were marital property has a sound basis in the evidence,
that finding was not clearly erroneous, and, conse-
quently, it must stand.
C
Finally, the plaintiff takes issue with the trial court’s
award of retroactive alimony. After the remand trial in
February, 2014, the trial court ordered the plaintiff to
pay alimony to the defendant, and made its order retro-
active to the date when the court originally entered the
dissolution decree after the original trial in 2009. The
total retroactive alimony due under the order was
$646,472, with payment to be made to the defendant no
more than forty-five days from the issuance of the order.
The plaintiff does not dispute the trial court’s power
to award retroactive alimony generally but claims that
the award in this case was improper. He argues that
the short payment period will require him to pay the
arrearage out of his share of the marital assets distrib-
uted by the trial court, effectively making it a reduction
in his property distribution. Because he must pay the
retroactive alimony from his own property distribution,
he asserts, the award constitutes improper ‘‘double dip-
ping.’’ (Internal quotation marks omitted.) We are not
persuaded.
The retroactive alimony award was not improper
because trial courts are free to consider the marital
assets distributed to the party paying alimony as a
potential source of alimony payments. See, e.g., Krafick
v. Krafick, 234 Conn. 783, 804–805 n.26, 663 A.2d 365
(1995). Trial courts are vested with broad discretion to
award alimony, and, when a court determines whether
to award alimony and the amount of any such award,
General Statutes § 46b-82 expressly authorizes the
court to consider the marital assets distributed to each
party in connection with the dissolution proceeding.16
See General Statutes § 46b-82; see also Krafick v. Kraf-
ick, supra, 805 n.26. A trial court’s alimony award consti-
tutes impermissible double dipping only if the court
considers, as a source of the alimony payments, assets
distributed to the party receiving the alimony. See Kraf-
ick v. Krafick, supra, 804–805 n.26; see also Greco v.
Greco, 275 Conn. 348, 357 n.8, 880 A.2d 872 (2005) (dou-
ble dipping occurs only when trial court considers, as
source for alimony, asset not available to payor). That
is, if a trial court assigns a certain asset—a bank
account, for example—to the party receiving alimony,
it cannot consider that same bank account as a source
of future alimony payments because the account has
not been distributed to the party paying the alimony.
In the present case, even if the plaintiff must, as he
claims, use his own share of the marital assets to pay
the retroactive alimony award, the trial court’s award
did not constitute double dipping because the assets
the plaintiff might use to pay the alimony award were
all awarded to him, not the defendant.
Nevertheless, the plaintiff asserts his double dipping
claim as a basis for challenging the overall fairness of
the trial court’s property distribution award. He claims
that, when the retroactive alimony payment is factored
in, the trial court effectively awarded 78 percent of the
marital estate to the defendant and awarded him only
22 percent. He asserts that ‘‘such a distribution is grossly
inequitable and cannot be sustained.’’ Once again, we
disagree.
‘‘[T]rial courts are endowed with broad discretion to
distribute property in connection with a dissolution of
marriage’’; Greco v. Greco, supra, 275 Conn. 354; and
are ‘‘empowered to deal broadly with property and its
equitable division incident to dissolution proceedings.’’
(Internal quotation marks omitted.) Id., 355. ‘‘Although
a trial court is afforded broad discretion when distribut-
ing marital property, it must take into account several
statutory factors. . . . These factors, enumerated in
. . . § 46b-81 (c), include the age, health, station, occu-
pation, amount and sources of income, vocational skills,
employability . . . and needs of each of the parties
. . . . Although the trial court need not give each factor
equal weight . . . or recite the statutory criteria that
it considered in making its decision or make express
findings as to each statutory factor, it must take each
into account.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Id., 354–55.
‘‘[J]udicial review of a trial court’s exercise of its
broad discretion in domestic relations cases is limited
to the questions of whether the [trial] court correctly
applied the law and could reasonably have concluded
as it did. . . . In making those determinations, we
allow every reasonable presumption . . . in favor of
the correctness of [the trial court’s] action.’’ (Citation
omitted; internal quotation marks omitted.) Borne-
mann v. Bornemann, supra, 245 Conn. 531. ‘‘Generally,
we will not overturn a trial court’s division of marital
property unless [the court] misapplies, overlooks, or
gives a wrong or improper effect to any test or consider-
ation [that] it was [its] duty to regard.’’ (Internal quota-
tion marks omitted.) Greco v. Greco, supra, 275
Conn. 355.
Even if we accept the plaintiff’s valuation of the trial
court’s property distribution for purposes of this appeal,
we reject his contention that the trial court abused its
discretion for at least three reasons. First, a distribution
ratio of 78 percent to 22 percent is not, on its face,
excessive, as the plaintiff contends. Indeed, we have
upheld distributions awarding as much as 90 percent
of the marital estate to one party. Sweet v. Sweet, 190
Conn. 657, 664, 462 A.2d 1031 (1983); but cf. Greco v.
Greco, supra, 275 Conn. 355–56 (under circumstances
of case, 98.5 percent distribution to one party was
excessive). Second, the court’s distribution reflected
the unequal earnings potential of the parties. The trial
court found that the plaintiff had cash compensation
in excess of $1.2 million in the years prior to the dissolu-
tion, whereas the defendant had an earnings potential
of $143,000. The plaintiff thus had an earnings potential
of at least eight times that of the defendant. In addition,
the trial court found that the plaintiff had received sig-
nificant noncash compensation and would continue to
do so in the future. Although the trial court awarded
the defendant alimony to supplement her income, the
amount of the award was to diminish every seven years,
leaving the defendant with a progressively smaller
income over time and justifying a greater up-front distri-
bution. See footnote 4 of this opinion. Finally, as we
have discussed, a significant component of the defen-
dant’s distribution was the trial court’s remedial award
for the plaintiff’s violations of the automatic orders.
See part I of this opinion. In these circumstances, we
cannot conclude that the trial court’s property distribu-
tion award was inequitable, as the plaintiff contends. We
therefore reject this alternative ground for affirmance.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion the other justices concurred.
1
Practice Book § 25-5 provides in relevant part: ‘‘The following automatic
orders shall apply to both parties, with service of the automatic orders to
be made with service of process of a complaint for dissolution of marriage
. . . . The automatic orders shall be effective with regard to the plaintiff
. . . upon the signing of the complaint . . . and with regard to the defen-
dant . . . upon service and shall remain in place during the pendency of
the action, unless terminated, modified, or amended by further order of a
judicial authority upon motion of either of the parties:
***
‘‘(b) In all cases involving a marriage . . . 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.
***
‘‘(d) The automatic orders of a judicial authority as enumerated above
shall be set forth immediately following the party’s requested relief in any
complaint for dissolution of marriage . . . and shall set forth the following
language in bold letters:
‘‘Failure to obey these orders may be punishable by contempt of
court. If you object to or seek modification of these orders during
the pendency of the action, you have the right to a hearing before a
judge within a reasonable period of time.
‘‘The clerk shall not accept for filing any complaint for dissolution of
marriage . . . that does not comply with this subsection.’’ (Emphasis in
original.)
2
General Statutes § 46b-81 provides in relevant part: ‘‘(a) At the time of
entering a decree annulling or dissolving a marriage . . . 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 annulment, dissolution
of the marriage or legal separation, the age, health, station, occupation,
amount and sources of income, earning capacity, vocational skills, educa-
tion, 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.’’
3
The parties disagree about the precise value of the property distribution,
and the trial court made no specific findings with respect to that value. For
purposes of this appeal, however, we rely on the plaintiff’s valuation of the
marital estate and property distribution.
4
Specifically, the trial court ordered the plaintiff to pay alimony in the
amount of $45,000 per month for the first seven years commencing from
the date of dissolution, $37,500 per month for the next seven years, and
then $25,000 per month for the next seven years. The alimony payments
terminated after the third seven year period, unless one of the parties died
or the defendant remarried beforehand.
5
In her brief to this court, the defendant did not specifically argue that
the trial court possessed the inherent authority to address the plaintiff’s
violations but instead focused her arguments on the trial court’s statutory
authority under § 46b-81. We nevertheless resolve the present appeal in
reliance on the trial court’s inherent authority because (1) the defendant
raised this ground in her brief to the Appellate Court, and (2) at oral argument
before this court, the plaintiff’s counsel acknowledged that the trial court
had inherent authority to address the plaintiff’s violations of the automatic
orders and clarified that the plaintiff was disputing only how the trial court
exercised that authority in the present case.
6
Other tools not addressed in the present case include the court’s power
to sanction parties and their attorneys for ‘‘dilatory, bad faith and harassing
litigation conduct, even in the absence of a specific rule or order of the
court that is claimed to have been violated.’’ (Internal quotation marks
omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn.
1, 9–10, 776 A.2d 1115 (2001). Sanctions may include awarding litigation
costs to the party harmed by the improper conduct, exclusion of certain
evidence or testimony, or even the entry of a default, nonsuit or dismissal.
See id., 11.
7
Because the plaintiff’s transactions removed the stock shares and options
from the marital estate before the trial court could distribute them on
remand, we do not know precisely what portion of the stock shares and
options the trial court might have awarded to the defendant, if they were still
available for distribution. In these circumstances, a court could reasonably
conclude that a party should be compensated for a percentage of the losses
commensurate with that party’s share of the marital estate as awarded by
the trial court.
8
The trial court in the present case took the plaintiff’s transactions into
account by adjusting the distribution of marital assets in the defendant’s
favor, but it did not articulate precisely what share of the marital estate it
had awarded to the defendant. Nor did it articulate how much of its total
property distribution was attributable to the plaintiff’s violations of the
automatic orders. The plaintiff has not claimed that the lack of articulation
in this respect itself requires reversal. In the future, however, the trial court
should articulate both the adverse impact that a party’s violation had on
the value of the marital estate and precisely how it compensated the injured
party for that violation.
Nevertheless, in the present case, considering the plaintiff’s valuation of
the trial court’s total property distribution and the plaintiff’s suggested split
of the marital assets, we conclude that the trial court’s remedial award to
the defendant did not exceed the defendant’s reasonable share of the loss.
According to the plaintiff’s valuation of the marital assets, the total value
of the assets divided, without regard to the stocks and options, was
$6,514,836. The plaintiff had asked the trial court to divide the marital assets
evenly between the parties. Even if the trial court followed the plaintiff’s
suggestion, the defendant would have been entitled to one half of this
amount, that is, $3,257,418. In this scenario, the trial court also would have
been justified in awarding the defendant 50 percent of the $3.5 million in
losses caused by the plaintiff’s violations of the automatic orders, an addi-
tional $1,750,000. The defendant was actually awarded a total of $4,428,784—
meaning that she effectively received $3,257,418 of the marital assets and
an additional $1,171,366 for the losses caused by the plaintiff. Accordingly,
under the plaintiff’s valuation, the defendant effectively received exactly
one half of the losses caused by the plaintiff, less a discount of 33 percent
for taxes. Consequently, even if we assume that the trial court gave the
defendant exactly the share of the estate that the plaintiff argued that the
defendant was entitled to, and even if we use the plaintiff’s own valuation
of the trial court’s distribution, it is evident that the trial court’s award did
not exceed the reasonable value of the defendant’s losses and thus did not
amount to a penalty for the plaintiff’s violations of the automatic orders.
9
To be sure, if the plaintiff had not sold the stocks or exercised the
options, the stocks and options would have remained a part of the marital
estate and have been subject to distribution under § 46b-81. In that circum-
stance, Sunbury would have required the trial court to look to the value of
the stocks and options as of the dissolution date. Of course, if the plaintiff
had not sold the stocks or exercised the options, the defendant would
nevertheless have benefited from any increase in the actual value of any
stocks or options she received in the distribution, even if the trial court
could not have formally considered the increased value when distributing
the assets.
10
We are thus unpersuaded by the plaintiff’s contract law analogy. A
plaintiff in a breach of contract action is ordinarily entitled to be placed in
as good a position as he would have been in the absence of the breach,
and an award of damages may include lost profits. E.g., West Haven Sound
Development Corp. v. West Haven, 201 Conn. 305, 319–20, 514 A.2d 734
(1986) (‘‘The general rule in breach of contract cases is that the award of
damages is designed to place the injured party, so far as can be done by
money, in the same position as that which he would have been in had the
contract been performed. . . . [I]t is our rule that [u]nless [prospective
profits] are too speculative and remote, [they] are allowable as an element
of damage whenever their loss arises directly from and as a natural conse-
quence of the breach.’’ [Citations omitted; internal quotation marks
omitted.]).
11
The trial court was fully justified in finding that the exception did not
apply in the present case. The plaintiff was an attorney by profession, not
a stockbroker, and the plaintiff has not directed us to any evidence that he
otherwise had a regular practice of buying and selling stocks, either as a
hobby or in the management of his personal finances. Nor did he present
evidence of a regular practice of transacting his Omnicom stock that he
had received as compensation for his employment. In fact, the plaintiff
testified that his sale of Omnicom stock in 2009—when the automatic orders
were in effect—was the first time he had sold such stock.
12
We do not suggest, as the trial court did, that the usual course of business
exception is reserved only for transactions made in connection with a party’s
business or profession; rather, because the automatic orders are intended
to maintain the status quo between the parties, the exception would appear
to extend to personal transactions, but only if any such transactions are
conducted in the normal course of the parties’ ordinary activities, such that
both parties would fully expect the transactions to be undertaken without
prior permission or approval. Even if the trial court took a more limited
view of the exception, however, that view would not provide a basis for
reversal of the trial court’s financial orders. The testimony in the present
case indicates that the plaintiff had not previously sold stocks earned as part
of his compensation, and, thus, he cannot establish a preexisting practice of
selling these assets, even under a more expansive interpretation of the
exception. See footnote 11 of this opinion.
13
The Appellate Court did not address this argument, concluding that the
plaintiff had waived it. O’Brien v. O’Brien, supra, 161 Conn. App. 580 n.4.
Because the claim cannot succeed on its merits even if preserved, we need
not consider whether it was waived.
14
We note that, in the present case, whether the options were marital
property is irrelevant to our determination that the plaintiff’s exercise of
those options violated the automatic orders, which expressly bar the sale,
transfer, or exchange of ‘‘any property,’’ not just marital property, during
the pendency of the dissolution proceedings. Practice Book § 25-5 (b) (1).
We consider whether the options were marital property because that issue
is relevant to determining the extent of any losses that the defendant may
have sustained and that are attributable to those transactions and, thus, to
the plaintiff.
15
The trial court’s finding is also supported by the Omnicom plan governing
the issuance of stock options, which was entered into evidence at trial. That
plan makes no reference to options being awarded for future services or
retention purposes, and does not make the exercise of any options contingent
on meeting any future performance goals.
16
General Statutes § 46b-82 (a) 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 evidence
presented by each party and 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, earning
capacity, vocational skills, education, 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 and feasibility of such
parent’s securing employment.’’ (Emphasis added.)