Forgione v. Forgione ( 2018 )

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BEATRICE FORGIONE v. MENNATO FORGIONE
(AC 36991)
Keller, Bright and Beach, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
opening the judgment of dissolution and reissuing financial orders. He
claimed that the court erred in its method of dividing the parties’ assets
because it failed to take into account an advance payment made by the
plaintiff to the defendant against the defendant’s equitable distribution
and the resultant transfer of equity in the marital residence to the plain-
tiff. On appeal, this court had determined that, pursuant to statute (§ 46b-
86 [a]), the trial court lacked subject matter jurisdiction to open the
dissolution judgment for the purpose of redividing the parties’ marital
asssets and, accordingly, vacated the court’s judgment and remanded
the case for further proceedings. Thereafter, our Supreme Court granted
the plaintiff’s petition for certification to appeal and remanded the case
to this court for reconsideration in light of Reinke v. Sing (328 Conn.
376). On remand, held:
1. Where, as here, the parties entered into a postjudgment stipulation to
open the dissolution judgment so that the court could address anew all
financial matters, including the division of assets, the trial court had
subject matter jurisdiction and properly exercised its statutory authority
to open the dissolution judgment.
2. The defendant could not prevail on his claim that the trial court erred in
its method of dividing the parties’ assets; although the defendant did
not preserve his claim properly because he failed to distinctly raise it
before the trial court, this court exercised its discretion to consider the
merits of the claim, which was unavailing, as the trial court considered
the advance payment when it issued new financial orders and ordered
the defendant to transfer his title to the marital residence to the plaintiff,
the defendant misrepresented the plaintiff’s financial assets by affording
her cetain additional cash for the advance payment that was not encum-
bered by a corresponding liability, there having been no indication that
the plaintiff readily had cash in the amount of the advance payment
available to pay to the defendant, and the record having indicated that
the plaintiff had obtained the advance payment by way of a personal
loan, and, thus, the defendant’s claim that the plaintiff received a net
gain in the amount of the advance payment as a result of the transfer
of assets related to the marital home found no support in the record.
Argued September 11—officially released December 11, 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 Stamford-Norwalk, where the court, Hon. Stan-
ley Novack, judge trial referee, rendered judgment
dissolving the marriage and granting certain other relief;
thereafter, the court, Emons, J., approved the stipula-
tion of the parties to open the judgment as to financial
issues; subsequently, the court, Schofield, J., issued
certain orders; thereafter, the court, Schofield, J.,
granted the defendant’s motion for reargument and
issued certain orders, and the defendant appealed to
this court, which vacated the judgment and remanded
the case for further proceedings; subsequently, the
defendant, on the granting of certification, appealed to
our Supreme Court, which remanded the case to this
court for reconsideration. Affirmed.
Thomas C. C. Sargent, for the appellant (defendant)
Norman A. Roberts, II, with whom, on the brief, was
Tara C. Dugo, for the appellee (plaintiff)
Opinion
BRIGHT, J. This case returns to us on remand from
our Supreme Court.1 The defendant appeals from the
judgment of the trial court opening the judgment of
dissolution and reissuing financial orders. On appeal,
the defendant claims that the trial court erred in its
method of dividing the parties’ assets because it failed
to take into account an advance payment made by the
plaintiff to the defendant. Although the defendant raises
this claim for the first time on appeal, we exercise our
discretion to consider the claim on the merits, and we
affirm the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. On
January 16, 2008, the plaintiff, Beatrice Forgione, com-
menced this dissolution action against the defendant,
Mennato Forgione. On July 7, 2008, the parties entered
into a prejudgment stipulation in which they agreed
that the plaintiff would have exclusive possession of
the marital home, and, in exchange, the plaintiff would
pay the defendant $60,000 as an ‘‘advance’’ against the
defendant’s equitable distribution. The $60,000 advance
represented approximately one half of the total equity
in the marital home at that time. The plaintiff later
testified that she obtained the $60,000 by way of a per-
sonal loan from one of her friends and, thereafter, paid
the advance to the defendant. This testimony was cor-
roborated by the plaintiff’s itemization of a $60,000 lia-
bility, which she specifically identified as a ‘‘[l]oan for
[a]dvance to [h]usband re property [distribution],’’ on
her August 26, 2009 financial affidavit.
On August 26, 2009, the court rendered judgment
dissolving the marriage of the parties. The dissolution
judgment incorporated the parties’ stipulated
agreement that resolved, among other things, the issues
of custody, insurance, distribution of marital assets and
liabilities, child support, and alimony. The parties stipu-
lated, in relevant part, that the defendant would transfer
his interest in the marital residence to the plaintiff in
consideration of the $60,000 advance that the plaintiff
previously had paid to the defendant, and that the par-
ties each would retain the remaining assets listed on
their respective financial affidavits, including ‘‘deferred
compensation’’ plans.
On March 12, 2012, the plaintiff filed a motion to
open the dissolution judgment on the ground that the
defendant intentionally had failed to disclose commis-
sions he had received just prior to the dissolution judg-
ment. On May 30, 2012, the parties entered a
postjudgment stipulation to open the dissolution judg-
ment for the purpose of redetermining ‘‘all issues of a
financial nature . . . .’’ On the same date, the court
approved the stipulation and opened the judgment.
On November 6, 2013, after a three day trial, the court
issued a memorandum of decision in which it entered
new financial orders concerning, among other things,
child support, insurance, property distribution, liabili-
ties, bank accounts and retirement funds, and counsel
fees. As for property distribution, the court, in its new
orders, recognized that the plaintiff previously had paid
the $60,000 advance to the defendant and, thus, ordered
the defendant to transfer his title to the marital resi-
dence to the plaintiff. As for bank accounts and retire-
ment funds, the court ordered, in relevant part, that
the ‘‘parties shall equally divide the remaining financial
assets of the marriage.’’ On November 22, 2013, the
defendant filed a motion seeking reargument of the
court’s new financial orders regarding insurance and
sanctions, and clarification as to the operative date that
should be utilized when equalizing the parties’ finan-
cial assets.
On February 3, 2014, after a hearing, the court issued
a memorandum of decision addressing the disputes as
to insurance and sanctions, and, further, deferring the
selection of the ‘‘operative date of equalization of finan-
cial assets’’ until after the court received additional
briefing from the parties. Accordingly, on February 26,
2014, the plaintiff filed a brief contending that the opera-
tive date should be the date of dissolution, August 26,
2009, and proffering a mathematical calculation of the
parties’ financial assets—bank accounts and retirement
funds—on that date. On March 12, 2014, the defendant
filed a brief concurring that the operative date should
be August 26, 2009; however, he disagreed that the
plaintiff’s calculation ‘‘should have been made a part
of the legal memorandum and, therefore, wishe[d] [it]
stricken.’’ The defendant provided no substantive objec-
tion to the plaintiff’s calculation, and provided no calcu-
lation of his own.
On June 3, 2014, the court issued a memorandum of
decision dividing the ‘‘remaining financial assets of the
marriage.’’ Therein, the court determined that the plain-
tiff’s financial assets listed on her August 26, 2009 affida-
vit totaled $45,946, that the defendant’s financial assets
listed on his August 26, 2009 affidavit totaled $135,500,2
and, consequently, the court ordered the defendant to
pay the plaintiff an equalization payment of $44,777.
The court adopted the method of calculation set forth
by the plaintiff in her posttrial brief and only incorpo-
rated the financial assets that were itemized in the
‘‘bank accounts’’ and ‘‘deferred compensation plans’’
categories of the parties’ respective affidavits. Thus, the
court’s calculation did not include the $60,000 advance
payment received by the defendant, the $120,000 of
equity in the marital home retained by the plaintiff, or
the $60,000 loan the plaintiff took to make the advance
payment to the defendant.3 This appeal followed. See
footnote 1 of this opinion.
On appeal, the defendant claims that the court erred
in its method of dividing the parties’ financial assets
because it failed to take into consideration the $60,000
advance against the defendant’s equitable distribution
and the resultant transfer of equity in the marital resi-
dence to the plaintiff. In response, the plaintiff con-
tends, in relevant part, that we should decline to review
the defendant’s claim because it is raised for the first
time on appeal. We agree with the plaintiff that the
defendant did not preserve his claim properly; neverthe-
less, pursuant to the factors set forth by our Supreme
Court in Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 311 Conn. 123,
157–58, 84 A.3d 840 (2014), we will exercise our discre-
tion to consider the claim on the merits. We affirm the
judgment of the trial court.
‘‘It is well settled that [o]ur case law and rules of
practice generally limit [an appellate] court’s review to
issues that are distinctly raised at trial. . . . [O]nly in
[the] most exceptional circumstances can and will this
court consider a claim, constitutional or otherwise, that
has not been raised and decided in the trial court. . . .
The reason for the rule is obvious: to permit a party to
raise a claim on appeal that has not been raised at trial—
after it is too late for the trial court or the opposing
party to address the claim—would encourage trial by
ambuscade, which is unfair to both the trial court and
the opposing party.’’ (Internal quotation marks omit-
ted.) Chief Disciplinary Counsel v. Rozbicki, 326 Conn.
686, 695, 167 A.3d 351 (2017), cert. denied, U.S. ,
138 S. Ct. 2583, 201 L. Ed. 2d 295 (2018); see also Practice
Book § 60-5 (‘‘court shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial’’).
‘‘A claim must be so stated as to bring to the attention
of the court the precise matter on which its decision is
being asked.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Fay, 326 Conn. 742, 766, 167
A.3d 897 (2017). ‘‘[T]he determination of whether a
claim has been properly preserved will depend on a
careful review of the record to ascertain whether the
claim on appeal was articulated below with sufficient
clarity to place the trial court [and the opposing party]
on reasonable notice of that very same claim.’’ (Internal
quotation marks omitted.) Eubanks v. Commissioner
of Correction, 329 Conn. 584, 598, 188 A.3d 702 (2018).
Our Supreme Court addressed this issue on circum-
stances substantially similar to those presented here in
Intercity Development, LLC v. Andrade, 286 Conn. 177,
182–89, 942 A.2d 1028 (2008). In Intercity Development,
LLC, the plaintiff sought to foreclose on a mechanic’s
lien it had recorded on the defendants’ property in con-
nection with its construction of a house on the property.
Id., 181. The plaintiff sought a judgment in the amount
of $49,933.19 based on the amount it claimed was still
owed under the parties’ contract less the cost of com-
pleting its work. Id., 186–87. The defendants did not
challenge at the trial court the methodology of the plain-
tiff’s calculation of damages, and the court relied on
that calculation when it rendered judgment for the
plaintiff in the amount of $49,933.19. Id., 188–89. On
appeal to this court, the defendants argued that the
amount of the judgment was in error because it was
not based on the value of the services rendered or
the materials furnished. Intercity Development, LLC v.
Andrade, 96 Conn. App. 608, 609, 901 A.2d 731 (2006),
rev’d, 286 Conn. 177, 182–89, 942 A.2d 1028 (2008). This
court agreed and reversed the judgment of the trial
court. Id., 611–14. After granting certification, our
Supreme Court reversed this court’s decision because
the challenge to the methodology used by the trial court
to calculate the amount of damages was raised for the
first time on appeal. Specifically, our Supreme Court
held that ‘‘[b]ecause the defendants never contested
the plaintiff’s calculation of the lien amount at trial, the
Appellate Court should have declined to review the
defendants’ claim of impropriety in the trial court’s
method of valuation of the lien.’’ Intercity Development,
LLC v. Andrade, supra, 188. The court also rejected the
defendants’ claim that the trial court’s error arose only
after trial, and therefore was the proper subject of their
appeal, because the plaintiff’s method of calculation
was set forth in its complaint, trial testimony, and post-
trial brief. Id., 188–89.
After a careful review of the record, we conclude,
consistent with our Supreme Court’s analysis in Inter-
city Development, LLC, that the defendant failed to
raise distinctly the present claim before the trial court.
The defendant did not argue before the trial court that
it should take into account the advance payment, or any
element of the parties’ exchange regarding the marital
home, when dividing the parties’ remaining financial
assets, and he did not proffer any calculation that
included the advance payment. He certainly did not
advocate to the trial court the argument that he has
made on appeal. Although the defendant objected to
the calculation as set forth in the plaintiff’s February
26, 2014 brief, it was on the procedural ground that it
improperly was included in a memorandum of law, not
on the substantive ground he now advances on appeal.
When presented with the plaintiff’s method of calcula-
tion, it became the defendant’s responsibility to raise
distinctly his dispute regarding the calculation before
the trial court. See id., 188–89; Histen v. Histen, 98
Conn. App. 729, 736–37, 911 A.2d 348 (2006) (declining
to review claim that trial court made erroneous calcula-
tion because claim was never made before trial court).
Indeed, after the court issued its June 3, 2014 decision
containing the purportedly erroneous division, the
defendant did not file a motion seeking to reargue that
decision; rather, the defendant took an appeal there-
from. See Intercity Development, LLC v. Andrade,
supra, 189.
Despite the defendant’s failure to raise his claim prop-
erly in the trial court, we exercise our discretion to
reach the merits of the defendant’s claim, which was
briefed by both parties, because ‘‘the minimal require-
ments for review [have been] met and . . . the party
who raised the unpreserved claim cannot prevail.’’
(Citation omitted; emphasis omitted; footnote omitted.)
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 157–58.4
The record reveals that the defendant’s claim is without
merit. First, contrary to the defendant’s claim, the court
did take the $60,000 advance into consideration when
it issued new financial orders. In the November 6, 2013
memorandum of decision, the court recognized that the
plaintiff previously had paid the $60,000 advance to the
defendant and, thus, ordered the defendant to transfer
his title to the marital residence to the plaintiff. The
defendant acknowledges this fact, yet, still claims on
appeal that the court’s division was unequal.
In support of his claim, the defendant proffers several
calculations that merge the court’s division of the par-
ties’ remaining financial assets with the court’s division
of the marital home. Therein, the defendant misrepre-
sents the plaintiff’s financial assets by affording her an
additional $60,000 of cash for the advance payment,
which was not encumbered by a corresponding liability.
The defendant’s injection of unencumbered cash is
unsupported by the record because there is no indica-
tion that the plaintiff readily had $60,000 of cash avail-
able to pay to the defendant. To the contrary, the
plaintiff’s testimony and her financial affidavit, which
represent the only evidence in the record relating to
this issue, demonstrate that she obtained the $60,000
by way of a personal loan from a friend. The defendant’s
calculations, however, fail to account for or even con-
sider this evidence. Instead, the defendant’s argument
is based on pure conjecture as to the source of the
advance payment to the defendant. Thus, the premise
of the defendant’s argument—that the plaintiff received
a $60,000 net gain as a result of the transfer of assets
related to the marital home—finds no support in the
record, and is, in fact, contradicted by it. Therefore, we
are unpersuaded by the defendant’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This court previously determined that General Statutes § 46b-86 (a)
deprived the trial court of subject matter jurisdiction to open, pursuant to
the parties’ stipulation, the dissolution judgment for the purpose of redividing
the parties’ marital assets. See Forgione v. Forgione, 162 Conn. App. 1, 129
A.3d 766 (2015), remanded for reconsideration, 328 Conn. 922, 181 A.3d 92
(2018). Subsequently, our Supreme Court granted the plaintiff’s petition for
certification and remanded the case to us with direction to reconsider our
decision in light of Reinke v. Sing, 328 Conn. 376, 179 A.3d 769 (2018)
(holding that § 46b-86 [a] does not deprive trial court of subject matter
jurisdiction, and that trial court properly exercised its statutory authority
under General Statutes § 52-212a to open dissolution judgment because
parties voluntarily submitted to court’s jurisdiction). See Forgione v. Forgi-
one, 328 Conn. 922, 181 A.3d 92 (2018). At the outset, we conclude that the
trial court in the present case had subject matter jurisdiction and properly
exercised its statutory authority because, as in Reinke, the parties entered
into a postjudgment stipulation to open the dissolution judgment so that
the court could address anew all financial matters, including the division
of assets.
2
The defendant updated his August 26, 2009 affidavit in 2013 to reflect,
among other things, the commissions he failed to include in the affidavit
he provided at the time the original judgment of dissolution was entered. The
court relied on the updated affidavit in entering the June 3, 2014 judgment.
3
Although the $120,000 of equity in the marital home and the $60,000
liability incurred by the plaintiff to make the advance payment to the defen-
dant were listed on the plaintiff’s affidavit, the $60,000 advance was not
listed on the defendant’s updated affidavit. The defendant maintains that
he spent the $60,000 advance prior to the date of dissolution and, alterna-
tively, that any remaining funds derived from the advance payment were
retained in his bank account.
4
‘‘Reviewing an unpreserved claim when the party that raised the claim
cannot prevail is appropriate because it cannot prejudice the opposing party
and such review presumably would provide the party who failed to properly
preserve the claim with a sense of finality that the party would not have if
the court declined to review the claim.’’ Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 158 n.28.