Riccio v. Riccio , 183 Conn. App. 823 ( 2018 )

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JAMES RICCIO v. LISA RICCIO
(AC 40540)
Sheldon, Bright and Bear, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving his marriage to the defendant and making certain financial
orders. He claimed, inter alia, that the trial court improperly valued and
distributed the parties’ defined benefit plans and abused its discretion
in making certain of its financial awards. Held that the trial court properly
considered the appropriate statutory (§§ 46b-81 and 46b-82) factors in
making its financial orders, which were supported by the court’s findings
and were within its discretion; that court’s distribution of the parties’
assets was not inequitable simply because it was not equal in monetary
terms, the plaintiff failed to demonstrate that the court abused its discre-
tion in applying the present division method, instead of the present
value method, in distributing the parties’ defined benefit plans, and the
court’s order requiring the defendant to pay to the plaintiff rehabilitative
alimony did not constitute impermissible double dipping, as the court
considered the plaintiff’s income from his pension, rather than the value
of the pension asset, and his other income to determine how much
additional support he would need from the defendant.
Argued April 19—officially released July 31, 2018
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, Nastri, J.; judg-
ment dissolving the marriage and granting certain other
relief, from which the plaintiff appealed to this court.
Affirmed.
Keith Yagaloff, for the appellant (plaintiff).
Fatima T. Lobo, for the appellee (defendant).
Opinion
PER CURIAM. The plaintiff, James Riccio, appeals
from the judgment of the trial court dissolving his mar-
riage to the defendant, Lisa Riccio. On appeal, the plain-
tiff claims that the court (1) abused its discretion in
making its financial orders because, in their entirety,
they favored the defendant; (2) erred in applying the
present division method of valuation to the distribution
of the parties’ defined benefit plans; and (3) erred in
its treatment of the plaintiff’s pay-status pension and
the defendant’s nonpay-status pension. We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to the plaintiff’s claims. The plaintiff and the defen-
dant were married on October 20, 1978. The plaintiff
brought the underlying action for dissolution of mar-
riage by complaint dated March 8, 2016. Following a
five day trial, on May 24, 2017, the court dissolved the
parties’ marriage on the ground of irretrievable break-
down,1 and entered various financial and property divi-
sion orders. The court ordered, in relevant part, that
the defendant pay to the plaintiff $125 per week for a
period of eighteen months as rehabilitative alimony,2
and that the plaintiff pay to the defendant $1 per week
as alimony for a period of eighteen months because
the defendant’s employment future was uncertain. The
court also ordered that ‘‘[t]he defendant shall transfer
$48,750 to the plaintiff from her Fidelity 401 (k) plan
. . . . This distribution takes into account the disparity
in the parties’ defined benefit plans. . . . The parties
shall retain, free and clear of any claim by the other,
their defined benefit plans. . . . The defendant shall
retain . . . any interest she has in [her] Computershare
MetLife policy. The plaintiff shall retain the Minnesota
Life Insurance Policy, and its cash value . . . .’’3 (Foot-
note omitted.) This appeal followed.
We begin by setting forth our general standard of
review in family matters. ‘‘The standard of review in
family matters is well settled. An appellate court will
not disturb a trial court’s orders in domestic relations
cases unless the court has abused its discretion or it
is found that it could not reasonably conclude as it did,
based on the facts presented. . . . It is within the prov-
ince of the trial court to find facts and draw proper
inferences from the evidence presented. . . . In
determining whether a trial court has abused its broad
discretion in domestic relations matters, we allow every
reasonable presumption in favor of the correctness of
its action. . . . [T]o 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. . . . Appellate review of a trial
court’s findings of fact is governed by the clearly errone-
ous standard of review. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) Powell-Ferri v. Ferri, 326 Conn. 457, 464, 165
A.3d 1124 (2017).
The plaintiff first claims that the court abused its
discretion because its ‘‘financial orders . . . are inequi-
tably favorable to the defendant [because the] orders
assign to the defendant the large majority of the marital
assets and income.’’ Specifically, the plaintiff challenges
the court’s orders regarding the alimony award, the
division of the parties’ pensions and retirement funds,
unknown future debt, the requirement that the parties
pay their own health insurance, the defendant’s MetLife
account, and attorney’s fees.
‘‘In dissolution proceedings, the court must fashion
its financial orders in accordance with the criteria set
forth in [General Statutes] § 46b-81 (division of marital
property) and [General Statutes] § 46b-82 (alimony).’’
(Internal quotation marks omitted.) Rozsa v. Rozsa, 117
Conn. App. 1, 9, 977 A.2d 722 (2009); see also Loughlin
v. Loughlin, 280 Conn. 632, 640, 910 A.2d 963 (2006).
‘‘Under these statutes, the court shall consider, inter
alia: the length of the marriage, the causes for the . . .
dissolution of the marriage . . . the age, health, sta-
tion, occupation, amount and sources of income, voca-
tional skills, employability, estate . . . and needs of
each of the parties . . . .’’4 (Internal quotation marks
omitted.) Loughlin v. Loughlin, supra, 640. ‘‘While the
trial court must consider the delineated statutory crite-
ria . . . no single criterion is preferred over others,
and the court is accorded wide latitude in varying the
weight placed upon each item under the peculiar cir-
cumstances of each case. . . . A trial court . . . need
not give each factor equal weight . . . or recite the
statutory criteria that it considered in making its deci-
sion or make express findings as to each statutory fac-
tor.’’ (Internal quotation marks omitted.) Kent v.
DiPaola, 178 Conn. App. 424, 431–32, 175 A.3d 601
(2017).
Importantly, ‘‘§ 46b-81 (a) permits the farthest
reaches from an equal division as is possible, allowing
the court to assign to either the husband or wife all or
any part of the estate of the other. . . . On the basis
of the plain language of § 46b-81, there is no presump-
tion in Connecticut that marital property should be
divided equally prior to applying the statutory criteria.’’
(Internal quotation marks omitted.) Kaczynski v. Kac-
zynski, 124 Conn. App. 204, 213, 3 A.3d 1034 (2010).
Additionally, ‘‘[i]ndividual financial orders in a dissolu-
tion action are part of the carefully crafted mosaic that
comprises the entire asset reallocation plan. . . .
Under the mosaic doctrine, financial orders should not
be viewed as a collection of single disconnected occur-
rences, but rather as a seamless collection of interde-
pendent elements.’’ (Internal quotation marks omitted.)
Barcelo v. Barcelo, 158 Conn. App. 201, 226, 118 A.3d
657, cert. denied, 319 Conn. 910, 123 A.3d 882 (2015).
We have considered carefully the plaintiff’s various
arguments in support of his claim regarding the court’s
financial orders, and we conclude that he has not estab-
lished that the court has misapplied the law, abused its
discretion or committed clear error. The court’s distri-
bution of the parties’ assets, although not equal in mone-
tary terms, is not inequitable solely on the basis of that
disparity.5 See, e.g., O’Brien v. O’Brien, 326 Conn. 81,
122, 161 A.3d 1236 (2017) (‘‘[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.’’). Our thorough review of the record leads
us to conclude that the court properly considered the
appropriate statutory factors, and that its orders were
both supported by its findings and within its broad dis-
cretion.
The plaintiff next claims that the court applied the
incorrect valuation standard for the distribution of the
parties’ defined benefit plans because it should have
applied the present value method instead of the present
division method.
‘‘There are three widely approved methods of valuing
and distributing pension benefits’’—the present value
method, the present division method, and the reserved
jurisdiction method.6 Krafick v. Krafick, 234 Conn. 783,
800, 663 A.2d 365 (1995). ‘‘[I]t is within the trial court’s
discretion . . . to choose, on a case-by-case basis . . .
[the] valuation method that it deems appropriate
. . . .’’ (Citation omitted.) Bender v. Bender, 258 Conn.
733, 760, 785 A.2d 197 (2001). In the present case, the
plaintiff claims that, ‘‘[b]ecause [his] pension was
already in pay status, the present value method was
likely the preferable valuation and distribution
method,’’ and not the present division method. The
plaintiff, however, has failed to demonstrate that the
court abused its broad discretion in applying the present
division method.
Finally, the plaintiff claims that the court erred in its
treatment of his pay-status pension and the defendant’s
nonpay-status pension. Specifically, the plaintiff claims
that the court’s order constituted impermissible ‘‘dou-
ble dipping’’ because the court considered his income
from his pension in making the alimony award and also
in dividing the parties’ assets.
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,
§ 46b-82 expressly authorizes the court to consider the
marital assets distributed to each party in connection
with the dissolution proceeding. See General Statutes
§ 46b-82; Krafick v. Krafick, supra, 234 Conn. 805 n.26;
see also O’Brien v. O’Brien, supra, 326 Conn. 120 (‘‘[t]he
retroactive alimony award was not improper because
trial courts are free to consider the marital assets dis-
tributed to the party paying alimony as a potential
source of alimony payments’’ [emphasis omitted]). ‘‘A
trial court’s alimony award constitutes impermissible
double dipping only if the court considers, as a source
of the alimony payments, assets distributed to the party
receiving the alimony. . . . 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 pay-
ments because the account has not been distributed
to the party paying the alimony.’’ (Citations omitted;
emphasis omitted.) O’Brien v. O’Brien, supra, 120–21;
see also Krafick v. Krafick, supra, 804–805 n.26 (double
dipping occurs when court relies ‘‘on the pension bene-
fits allocated to the employee spouse under § 46b-81
as a source of alimony . . . [and] only to the extent that
any portion of the pension assigned to the nonemployee
spouse was counted in determining the employee
spouse’s resources for purposes of alimony’’). In the
present case, in ordering the defendant to pay to the
plaintiff rehabilitative alimony, the court considered
the plaintiff’s income from his pension, rather than the
value of the pension asset, and his other income, to
determine how much additional support he would need
from the defendant for rehabilitative alimony. This does
not constitute double dipping.
The judgment is affirmed.
1
The court assigned primary fault for the breakdown of the marriage to
the plaintiff. On appeal, the plaintiff challenges the court’s finding that his
‘‘single-minded devotion to his sobriety, his obsession with bowling, his
infidelity and his deceptions are the primary reasons for the failure of the
marriage.’’ On the basis of our review of the record, we conclude that the
court’s finding is amply supported by the evidence and, therefore, not clearly
erroneous. See Greco v. Greco, 70 Conn. App. 735, 736–37, 799 A.2d 331
(2002) (court’s finding of fact regarding breakdown of marriage will be
reversed only if it is clearly erroneous).
2
‘‘[R]ehabilitative alimony, or time limited alimony, is alimony that is
awarded primarily for the purpose of allowing the spouse who receives it
to obtain further education, training, or other skills necessary to attain self-
sufficiency.’’ (Internal quotation marks omitted.) Fritz v. Fritz, 127 Conn.
App. 788, 795, 21 A.3d 466 (2011).
3
The parties each had their own retirement funds—the defendant had a
Fidelity 401 (k) account, and the plaintiff had a Thrift Savings account, each
of which is a defined benefit plan. Because of the discrepancy in the value
of the parties’ defined benefit plans, the court distributed $240,819 of the
defendant’s 401 (k) account to her and ordered that the plaintiff receive
the remaining $48,750 in the defendant’s 401 (k) account. The plaintiff
retained the full amount of his $138,000 Thrift Savings account.
4
The court stated in its memorandum of decision that it considered all
of the evidence before it, as well as the factors set forth in §§ 46b-81 (c)
and 46b-82, in making its orders.
5
The court noted in its memorandum of decision that it ‘‘has divided the
parties’ marital assets fairly and equitably, albeit not necessarily equally.’’
The majority of the assets, however, were divided equally. Additionally,
although the court’s allocation of the parties’ retirement funds was 56 percent
to the defendant and 44 percent to the plaintiff, the court properly could,
in its discretion, divide the parties’ assets in this manner in the specific
circumstances of this case, given its findings.
6
‘‘[T]he present value or offset method . . . requires the court to deter-
mine the present value of the pension benefits, decide the portion to which
the nonemployee spouse is entitled, and award other property to the nonem-
ployee spouse as an offset to the pension benefits to which he or she is
otherwise entitled.’’ (Internal quotation marks omitted.) Krafick v. Krafick,
supra, 234 Conn. 800. ‘‘Under the ‘present division’ method, the trial court
determines at the time of trial, the percentage share of the pension benefits
to which the nonemployee spouse is entitled.’’ Id., 803. ‘‘[U]nder the ‘reserved
jurisdiction’ method, the trial court reserves jurisdiction to distribute the
pension until benefits have matured.’’ Id. In this case, however, each of the
spouses had been or was employed and each had earned a pension, so there
was no ‘‘nonemployee’’ spouse.