Keller v. Keller , 167 Conn. App. 138 ( 2016 )

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BETH KELLER v. RICHARD KELLER
(AC 37263)
(AC 37560)
Beach, Mullins and Mihalakos, Js.
Argued May 10—officially released July 26, 2016
(Appeal from Superior Court, judicial district of
Middlesex, Adelman, J.)
Karen L. Dowd, with whom was Brendon P. Lev-
esque, for the appellant (plaintiff).
Steven R. Dembo, with whom were Caitlin E. Koz-
loski and, on the brief, P. Jo Anne Burgh, for the appel-
lee (defendant).
Opinion
MIHALAKOS, J. The plaintiff, Beth Keller, appeals
from the judgment of the trial court dissolving her mar-
riage to the defendant, Richard Keller, and entering
related financial orders. On appeal, the plaintiff claims
that the trial court improperly (1) relied on gross income
in making its financial orders, (2) concluded that the
plaintiff had engaged in litigation misconduct and bad
faith litigation, and (3) imputed income of $72,000 to
the plaintiff. The plaintiff also claims that the totality
of the trial court’s orders constituted an abuse of discre-
tion. We affirm the judgment of the trial court.
We first set forth the following relevant facts and
procedural history. The parties married on August 15,
1992, and the plaintiff brought this dissolution action
in May, 2011. The trial court issued pendente lite orders
in early August, 2011, which were appealed to this court.
We reversed the judgment and remanded the case for
further proceedings. See Keller v. Keller, 141 Conn. App.
681, 685, 64 A.3d 776 (2013). The court held hearings
on remand and issued new pendente lite orders in an
August 6, 2013 memorandum of decision. This decision
was then the subject of a second appeal. Following the
defendant’s motions for articulation and review and
pursuant to an order of this court, the trial court issued
an articulation of its August 6, 2013 decision on January
29, 2014. It subsequently dissolved the parties’ marriage
and issued final orders on July 9, 2014. We then dis-
missed the appeal of the August 6, 2013 judgment as
moot.
In its July 9, 2014 memorandum of decision, the trial
court found the following relevant facts.1 The parties
were married on August 15, 1992, and during the course
of their marriage had three children. As of July 9, 2014,
the children were eighteen, fifteen, and twelve.
The plaintiff obtained a master’s degree in clinical
nutrition from Boston University and worked in public
relations doing food and nutrition marketing. She had
only worked outside the home in a limited capacity
between the births of the parties’ first and second chil-
dren, and after the birth of their second child did not
work outside of the home for the fourteen years prior
to filing for dissolution. Her recent attempts to find
meaningful employment have met with limited success.
At the time of the July 9, 2014 memorandum of decision
she was earning $500 per month, and the court deter-
mined that she had an earning capacity of $26,000
per year.
The defendant was educated as a lawyer and spent
most of his adult career in finance. Up to the end of
2010, he was the owner of Angler, a hedge fund that
he started in 2006, which, at its peak, had between 50
and 100 investors and managed up to $150 million in
assets. The fund crashed in the fall of 2008 and finally
was closed out effective December 31, 2010. He lost a
substantial part of the family’s wealth along with that
of his investors. The defendant, in an attempt to develop
investment opportunities, has continued to maintain
the lifestyle of a successful hedge fund manager despite
his very limited income and resources. The court heard
varied expert opinions regarding his likelihood of suc-
cess, with the plaintiff’s expert predicting that he had
an earning capacity between $800,000 and $1.5 million
per year, and the defendant’s expert predicting that his
likely employment would be as an investment analyst
making between $60,000 and $175,000 per year. The
court determined that he had an earning capacity of
$175,000, but also noted that his finances could improve
dramatically over time.
Both parties had received significant amounts of
money, primarily from their parents, which they classi-
fied as loans. They used this money to fund this litigation
and to fund their lifestyles. The trial court determined
the plaintiff had received $30,000 per month from her
parents, and imputed $78,000 of it per year as income.
The defendant owed $651,498 to his parents, but the
court did not impute any income based on this amount.
The court entered the following relevant financial
orders on July 9, 2014. It ordered the defendant to pay
the plaintiff as periodic alimony the sum of $3000 per
month. It ordered that the plaintiff transfer her interest
in the family home, the present equity value being
approximately $1,139,000, to the defendant via quit-
claim deed, and that the defendant pay the plaintiff
$225,000. It ordered that the defendant pay the plaintiff
90 percent of any money paid to him from an undistribu-
ted ‘‘carried interest’’ account with Sandler Entities
(Sandler), a New York investment firm for which he
previously had worked, the remaining balance of which
was $639,200.2 Having awarded custody of the children
to the defendant and having found that the parties
exceeded the maximum combined net weekly income
under the child support guidelines, the court declined
to order the plaintiff to pay child support. Finally, it
ordered ‘‘that the plaintiff shall pay to the defendant
the sum of $25,000 toward his legal fees expended in
work done regarding her litigation misconduct . . . .’’
This appeal followed. Additional facts will be set forth
as necessary.
We first set forth our standard of review. ‘‘We will
not reverse a trial court’s rulings regarding financial
orders unless the court incorrectly applied the law or
could not reasonably have concluded as it did. . . . A
fundamental principle in dissolution actions is that a
trial court may exercise broad discretion in awarding
alimony and dividing property as long as it considers
all relevant statutory criteria. . . . In reviewing the
trial court’s decision under [an abuse of discretion]
standard, we are cognizant that [t]he issues involving
financial orders are entirely interwoven. The rendering
of judgment in a complicated dissolution case is a care-
fully crafted mosaic, each element of which may be
dependent on the other. . . .
‘‘A reviewing court must indulge every reasonable
presumption in favor of the correctness of the trial
court’s action to determine ultimately whether the court
could reasonably conclude as it did. . . . This standard
of review reflects the sound policy that the trial court
has the opportunity to view the parties first hand and
is therefore in the best position to assess all of the
circumstances surrounding a dissolution action, in
which such personal factors . . . as the demeanor and
the attitude of the parties are so significant.’’ (Internal
quotation marks omitted.) Cimino v. Cimino, 155
Conn. App. 298, 302–303, 109 A.3d 546, cert. denied,
316 Conn. 912, 111 A.3d 886 (2015).
I
The plaintiff claims that the court improperly relied
on gross income rather than net income in making its
financial orders. She asserts that because the court
found that the plaintiff had a yearly gross income of
$78,000 and the defendant had a yearly gross income
of $175,000, it clearly based its financial orders on gross
income. The defendant replies that the court specifi-
cally referenced net income when applying the child
support guidelines, had information from which it could
calculate net income, and was otherwise silent regard-
ing whether it was using gross or net income. The defen-
dant urges us to conclude that the court properly used
net income. We agree with the defendant.
‘‘It is well settled that a court must base child support
and alimony orders on the available net income of the
parties, not gross income.’’ Morris v. Morris, 262 Conn.
299, 306, 811 A.2d 1283 (2003). Where ‘‘the trial court
expressly and affirmatively state[s] that it relied on
gross income in determining the defendant’s support
obligation, the trial court abuse[s] its discretion because
it applied the wrong legal standard.’’ Id., 307. On the
other hand, where the trial court states that it is relying
on ‘‘all of the relevant information, including the parties’
financial affidavits and their child support guideline
worksheets, both of which [include] the parties’ net
incomes, as well as the testimony of the parties’’; (inter-
nal quotation marks omitted) Kelman v. Kelman, 86
Conn. App. 120, 123–24, 860 A.2d 292 (2004), cert.
denied, 273 Conn. 911, 870 A.2d 1079 (2005); we may
conclude that the trial court properly used net income.
This may be true even if an order ‘‘is expressed as
a function of the parties’ gross earnings.’’ Hughes v.
Hughes, 95 Conn. App. 200, 207, 895 A.2d 274, cert.
denied, 280 Conn. 902, 907 A.2d 90 (2006). ‘‘[W]e differ-
entiate between an order that is a function of gross
income and one that is based on gross income. . . .
[T]he term ‘based’ as used in this context connotes an
order that only takes into consideration the parties’
gross income and not the parties’ net income. Conse-
quently, an order that takes cognizance of the parties’
disposable incomes may be proper even if it is
expressed as a function of the parties’ gross earnings.’’
Id. In short, although ‘‘[i]t is well settled that a court
must base its child support and alimony orders on the
available net income of the parties, not gross income
. . . [w]hether or not an order falls within this prescrip-
tion must be analyzed on a case-by-case basis. Thus,
while our decisional law in this regard consistently
affirms the basic tenet that support and alimony orders
must be based on net income, the proper application
of this principle is context specific.’’ (Internal quotation
marks omitted.) Cleary v. Cleary, 103 Conn. App. 798,
801, 930 A.2d 811 (2007).
In the July 9, 2014 memorandum of decision, the
court found the plaintiff’s earning capacity to be $26,000
gross per year, plus reoccurring gifts in the amount of
$72,000 gross per year for an effective income of $98,000
annually, and the defendant’s earning capacity to be
$175,000 gross per year. When calculating child support,
it stated that ‘‘the combined estimated net weekly
income of the parties would exceed the four thousand
dollar ($4000) maximum . . . .’’ (Emphasis added.) It
then stated that it was entering its orders ‘‘in consider-
ation of the findings of fact enumerated above and in
consideration of the criteria as set forth in General
Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-62, 46b-81, and
46b-82 as explained by our case law . . . .’’ The court
ordered the defendant to pay the plaintiff alimony in
the amount of $3000 per month, without stating how it
had arrived at this amount. The parties also filed child
support guideline worksheets and financial affidavits,
although as stated previously the court relied on earning
capacity and imputed income for each party.
The court did not state how it used its gross income
findings in entering its orders. It did state that it was
fashioning an award as equitably as possible given the
constraints of incomplete information. See Commis-
sioner of Transportation v. Larobina, 92 Conn. App.
15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889
A.2d 816 (2005). Also of note, in the articulation of
its August 6, 2013 memorandum of decision, the court
articulated the method it used to arrive at the child
support guidelines amounts in its August 6, 2013 memo-
randum of decision: ‘‘Using . . . gross amounts, the
court took the appropriate deductions to reach a guide-
line net amount for the calculation.’’ We have no reason
to conclude that the court did not perform the same
analysis for its July 9, 2014 judgment.3
In short, the child support calculation clearly states
that it is based on net income, and the alimony award
does not state whether it is based on any income finding.
The court stated that it relied on case law which clearly
requires that net income be used, and it had demon-
strated in an earlier articulation that it understood how
to calculate net income as a function of gross income.
We therefore conclude that the court used the proper
standard. See National City Real Estate Services, LLC
v. Tuttle, 155 Conn. App. 290, 298, 109 A.3d 932 (2015)
(absent evidence to contrary, we assume that court
acted properly).
II
The plaintiff claims that the court erred in finding
that she engaged in litigation misconduct. She asserts
that the court confused litigation misconduct and bad
faith litigation, and moreover that the evidence does
not show that she acted in bad faith and without any
colorable claim. The defendant responds that the court
utilized the proper standard and properly found that
the plaintiff was required to pay his attorney’s fees for
her actions during the course of the litigation. We agree
that the court’s analysis blends litigation misconduct
and bad faith litigation when they are in fact discrete
doctrines, but we conclude that the court nonetheless
applied the proper standard, and we affirm its findings.
Litigation misconduct may be sanctioned at the dis-
cretion of the court under Ramin v. Ramin, 281 Conn.
324, 353, 915 A.2d 790 (2007), where a party has engaged
in egregious litigation misconduct. Our Supreme Court
clarified in Berzins v. Berzins, 306 Conn. 651, 658, 51
A.3d 941 (2012), that Ramin was applicable only to
discovery misconduct. It then considered whether the
trial court ‘‘could have acted within its inherent author-
ity to impose sanctions against a litigant for filing frivo-
lous and duplicative postjudgment motions.’’ Id., 660.
It ruled that the court could do so under the bad faith
exception to the American rule if it made ‘‘the required,
two part finding pursuant to Maris v. McGrath, [269
Conn. 834, 844, 850 A.2d 133 (2004)]—namely, that the
[litigant’s] claims were entirely without color and that
the [litigant] acted in bad faith . . . .’’ Berzins v. Ber-
zins, supra, 660. In the present case, the trial court
blended the Ramin and Maris standards in that it
referred to litigation misconduct under Ramin as the
‘‘ ‘bad faith exception to the American Rule’ ’’ and stated
that Berzins demonstrated that ‘‘litigation misconduct
in dissolution matters was not limited to discovery mis-
conduct,’’ whereas Berzins in fact demonstrated that
litigation misconduct was so limited, but held that in
the alternative courts could use their inherent power
pursuant to the bad faith exception to sanction other
conduct provided they made the more stringent findings
required by Maris. The court in the present case went
on, however, to correctly quote and apply the two part
test for the bad faith exception as quoted in Maris
and Berzins. The court therefore applied the correct
legal standard.
The following additional facts are necessary to deter-
mine whether the court abused its discretion by order-
ing the plaintiff to pay attorney’s fees under the bad
faith exception. The court found that the plaintiff had
been in contempt of court for multiple incidents.4 It
found that she had violated its order that the defendant
would have exclusive use of the marital home when
she entered and stole his garbage. It also found her in
contempt for making changes to her Facebook account
after the court had ordered her to preserve information
in social media websites and for portraying the defen-
dant in a negative light in the eyes of the children and
others. Finally, it found her in contempt for failing to
supply her iPhone password after being ordered to do
so on multiple occasions.
In claiming that the court abused its discretion in
awarding attorney’s fees, the plaintiff focuses on what
the trial court terms the ‘‘damaging materials allegedly
belonging to the defendant’’ that the plaintiff initially
claimed to have found in 2006, but later claimed to have
stolen from the defendant’s garage in 2013. The plaintiff
asserts that these materials were pornographic in
nature and that she had disclosed them during a confi-
dential mediation session. She maintains that the defen-
dant’s counsel then made the materials the centerpiece
of the case, seeking extensive discovery in order to
prove that the plaintiff had manufactured them. She
contends that she should not be blamed for the defen-
dant’s tactical decision to make this issue a part of the
litigation. The attorney for the minor children con-
firmed that the plaintiff had never asserted that the
materials were relevant to the custody issues, and the
trial court stated that ‘‘it was not possible to make any
clear determination as to whether or not the material
came from the defendant’s computer hard drive or was
fabricated by the plaintiff in an attempt to gain an advan-
tage in the case.’’
An award of attorney’s fees, including for bad faith,
is reviewed for abuse of discretion. See Richter v. Rich-
ter, 137 Conn. App. 231, 235, 48 A.3d 686, cert. denied,
307 Conn. 926, 55 A.3d 568 (2012). ‘‘To determine
whether the bad faith exception applies, the court must
assess whether there has been substantive bad faith as
exhibited by, for example, a party’s use of oppressive
tactics or its wilful violations of court orders; [t]he
appropriate focus for the court . . . is the conduct of
the party in instigating or maintaining the litigation.’’
(Internal quotation marks omitted.) Maris v. McGrath,
supra, 269 Conn. 845–46. The court must also determine
whether the claim is colorable; if the claimant is a party
to the litigation, ‘‘a claim is colorable, for purposes
of the bad faith exception to the American rule, if a
reasonable person, given his or her first hand knowl-
edge of the underlying matter, could have concluded
that the facts supporting the claim might have been
established.’’ (Internal quotation marks omitted.) Id.,
847. Finally, the court must set forth its factual findings
with specificity. See Kupersmith v. Kupersmith, 146
Conn. App. 79, 97–98, 78 A.3d 860 (2013).
We first note that the court based its determination
of bad faith in part on its finding that the plaintiff had
committed numerous wilful violations of court orders,
a finding that the plaintiff has not attacked.5 The plaintiff
makes two assertions regarding the pornographic mate-
rials, namely, that it was never proven that she manufac-
tured them and that the defendant chose to engage in
extensive discovery regarding them. Neither argument
is availing. The court clearly stated that even if the
plaintiff’s claims were true, no reasonable person would
find that her actions were justified. Even under the
plaintiff’s version of events, she stole the materials
while under a court order not to enter the house, and
she lied under oath about when she obtained them. The
plaintiff has not provided any justification for pre-
senting the materials to the defendant, and we see no
reason to disturb the court’s finding that there was
none.
The plaintiff also claims that it was the defendant’s
choice to make the pornographic materials a significant
part of the litigation. The trial court, however, cognizant
of the circumstances of the case and the acrimonious
nature of the parties’ relationship, did not fault the
defendant for attempting to demonstrate the prove-
nance of the images. We see no reason to conclude that
this determination was in error.
Furthermore, both the plaintiff and her attorney
acknowledged her fault. Her attorney stated that the
plaintiff’s actions regarding the pornographic materials
‘‘blew up into a firestorm that wasted a lot of time and
resources’’ and the plaintiff herself stated: ‘‘I feel badly
because [lying about when she found the pornographic
materials] caused three months of chaos for
everybody.’’
The plaintiff has not claimed that she failed to receive
notice of the possibility she could be required to pay
the defendant’s attorney’s fees, or that the trial court
failed to make sufficiently detailed findings to justify
its award. See Maris v. McGrath, supra, 269 Conn. 844.
Having reviewed the record, we conclude that she did
have notice and the court’s findings that she acted in
bad faith and without colorable claims were suffi-
ciently detailed.
On the basis of all of the foregoing, we conclude that
the court did not abuse its discretion in awarding the
defendant attorney’s fees under the bad faith exception
to the American rule.
III
The plaintiff claims that the court improperly imputed
income to her based on payments by her parents that
she asserts were loans. She argues that the court found
it found her credible and should have construed the
payments as loans. She further argues that the court
created her inability to pay by its financial orders
because it did not award her sufficient resources to
pay, and, therefore, she should not be penalized. The
defendant replies that the court properly imputed
income to the plaintiff. We agree with the defendant.
Whether money should be characterized as income
or a loan is a question of fact for the trial court. See
Zahringer v. Zahringer, 262 Conn. 360, 369–71, 815
A.2d 75 (2003); Zahringer v. Zahringer, 124 Conn. App.
672, 679–80, 6 A.3d 141 (2010). This is often a matter
that turns on the credibility of the parties and whether
any documentation of the loans was provided. Compare
Zahringer v. Zahringer, supra, 124 Conn. App. 678–79
(court, after determining that parties, including father’s
accountant, were credible and that documentation had
been created, held that payments were loans), with
Desai v. Desai, 119 Conn. App. 224, 236–37, 987 A.2d
362 (2010) (court, after determining that parties were
not credible and that documentation was lacking, held
that payments were not loans).
In the present case, the court found that the payments
from the plaintiff’s parents initially may have been made
with the intention that they would be repaid, but that
this changed over time into outright support payments.
It also found that the plaintiff acknowledged that some
payments were not loans, and that she was unsure
whether others were loans. The plaintiff claims that by
stating that the plaintiff would repay the money if she
could, the court was finding credible her contention
that the payments were loans. We disagree with the
plaintiff’s conclusion. When the court determined that
the payments were not loans, it considered the actual
situation faced by the plaintiff, in which she was
unlikely to be able to repay the money, and therefore
concluded that the payments were gifts because they
were made without likelihood of repayment. Whether,
in a theoretical situation, the plaintiff would repay these
gifts does not contradict this assessment. The court’s
statement that the plaintiff would repay if she could is
not contradictory to its holding that, given the plaintiff’s
current situation, the payments were not loans.
The plaintiff also claims that the court created a situa-
tion where she could not repay the alleged loans
because it divided the assets as it did and permitted
the defendant to use two prior Sandler distributions to
repay his own loans. We are not persuaded.
The defendant had received two earlier distributions
from Sandler in the combined amount of $1,271,300,
which he used to repay loans from his parents. The
court did not fault him for this action, or order that he
provide equalization payments to the plaintiff. We will
return to the question of whether this division of assets
constituted an abuse of discretion in part IV of this
opinion. Regarding how the Sandler distribution affects
whether the court abused its discretion in treating the
money received by the plaintiff as income, the plaintiff
has not pointed to any testimony that her parents were
expecting payment from the Sandler distribution or
other assets when they made the payments. The court
based its determination on the plaintiff’s testimony,
spending habits, and financial situation. We conclude,
therefore, that the court did not abuse its discretion in
making this determination.
IV
The plaintiff claims that the totality of the court’s
orders constituted an abuse of discretion. She points
to the court’s disparate treatment of family loans to
each party, the defendant’s use of marital assets to pay
his loans, the court’s disparate treatment of the parties’
potential bankruptcies, the court’s disparate treatment
of the parties’ conduct, and the overall financial orders
being grossly inequitable. The defendant responds that
all of these orders were proper exercises of the trial
court’s discretion. We agree with the defendant.
‘‘The power to act equitably is the keystone to the
court’s ability to fashion relief in the infinite variety of
circumstances which arise out of the dissolution of a
marriage.’’ Pasquariello v. Pasquariello, 168 Conn. 579,
585, 362 A.2d 835 (1975). ‘‘[A] fundamental principle in
dissolution actions is that a trial court may exercise
broad discretion in . . . dividing property as long as
it considers all relevant statutory criteria.’’ (Internal
quotation marks omitted.) Coleman v. Coleman, 151
Conn. App. 613, 617, 95 A.3d 569 (2014). ‘‘It is well
settled that [i]n dissolution proceedings, the court must
fashion its financial orders in accordance with the crite-
ria set forth in General Statutes §§ 46b-81 (division of
marital property), 46b-82 (alimony) and 46b-84 (child
support). All three statutory provisions require consid-
eration of the parties’ amount and sources of income
in determining the appropriate division of property and
size of any child support or alimony award. . . . We
note also that [t]he trial court may place varying degrees
of importance on each criterion according to the factual
circumstances of each case. . . . There is no additional
requirement that the court specifically state how it
weighed the statutory criteria or explain in detail the
importance assigned to each statutory factor.’’ (Cita-
tions omitted; internal quotation marks omitted.) Kac-
zynski v. Kaczynski, 124 Conn. App. 204, 210–11, 3
A.3d 1034 (2010). ‘‘[Section] 46b–81 (c) directs the court
to consider numerous separately listed criteria. No lan-
guage of presumption is contained in the statute.
Indeed, § 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 presumption in Con-
necticut that marital property should be divided equally
prior to applying the statutory criteria.’’ (Internal quota-
tion marks omitted.) Id., 213. ‘‘[T]he specified criteria
are not exhaustive, and the court properly may consider
other equitable factors when crafting its property distri-
bution and alimony orders.’’ Loughlin v. Loughlin, 93
Conn. App. 618, 625, 889 A.2d 902, aff’d, 280 Conn. 632,
910 A.2d 963 (2006).
We already have touched on the court’s characteriza-
tion of payments made to the parties by their families.
The court did not state why it considered the money
provided to the defendant by his parents to be loans
rather than income. As we stated previously in this
opinion, this was a question of the parties’ credibility
and the court’s consideration of the overall situation.
The defendant had received loans from nonfamily mem-
bers and had paid back some of the loans using the
Sandler distribution. In addition, given his former posi-
tion as a hedge fund manager, repayment was likely a
more reasonable prospect. Any of these reasons could
account for the court’s disparate treatment of the pay-
ments made to the parties.6
The court also did not state why it permitted the
defendant to use a portion of the Sandler distribution for
his own purposes. Doing so amounted to distribution of
an asset, which is left to the court’s discretion. See
Coleman v. Coleman, supra, 151 Conn. App. 617–18.
The Sandler distribution amounts to compensation for
the defendant’s former employment, and we previously
have stated that there is no presumption that assets
should be distributed equally. See Kaczynski v. Kac-
zynski, supra, 124 Conn. App. 213. The court therefore
was within its discretion to choose not to order any
equalization payment to the plaintiff.
The court made passing reference to whether bank-
ruptcy was a viable option for either party. It noted
that many of the plaintiff’s loans were dischargeable in
bankruptcy, but that if the defendant declared bank-
ruptcy he would not be able to work as a hedge fund
manager again. The plaintiff claims that this was an
improper conclusion to draw, citing to the many nega-
tive consequences that could befall her if she declared
bankruptcy, such as damage to her credit rating, thereby
impairing her ability to obtain a mortgage on a home.
Although this may be true, we do not interpret the
court’s mention of bankruptcy as anything other than
a passing reference. The court did not order the plaintiff
to declare bankruptcy, and did not hold that it distrib-
uted assets in the manner it did because of the possibil-
ity of bankruptcy. Without further insight into the
reason why the court referenced bankruptcy, by way
of articulation, we are left to conclude that the court
properly exercised its discretion.
The plaintiff also argues that although she was sanc-
tioned for her actions, the court took a blind eye to
the defendant’s misdeeds, which included recording the
plaintiff and their children and installing spyware on
the plaintiff’s computer. The court addressed the defen-
dant’s conduct in its July 9, 2014 memorandum of deci-
sion: ‘‘The defendant is certainly not without fault for
poor judgment during this case. The testimony was
clear that early on he recorded conversations of his
wife and children on a fairly routine basis, mostly with-
out their knowledge. Prior to the commencement of
the case, he had installed software capable of allowing
him to monitor use of the family computer—so-called
‘spyware’—without either his wife or his children know-
ing about his actions. He also confiscated one of his
daughter’s cell phones to have it forensically examined.
The difference between such behavior and that of the
plaintiff is that the defendant seems to have learned
from his mistakes while the plaintiff did not. His poor
judgment calls were, for the most part, early in the
dispute and they stopped; hers continued until very
shortly before the trial.’’ The plaintiff contends that
certain conduct had not stopped, in that the defendant
had not removed the spyware and the defendant testi-
fied that he had stopped taping the plaintiff ‘‘ ‘except
in particular circumstances.’ ’’ Determining what
actions to sanction is within the trial court’s discretion.
Moreover, the defendant’s actions were not taken in
violation of court orders, whereas the plaintiff’s were,
and the court made no finding and there is no evidence
in the record that the defendant’s actions caused signifi-
cant litigation expenses, whereas the court found that
the plaintiff’s actions did cause significant expenses.
The court, therefore, was within its discretion to distin-
guish between the parties’ actions in this manner.
Finally, the plaintiff claims that the financial orders
were grossly inequitable. In Casey v. Casey, 82 Conn.
App. 378, 385, 844 A.2d 250 (2004), this court reversed
financial orders that left the defendant ‘‘saddled with
a sizeable mortgage debt, when the proceeds of the
increased debt inured almost exclusively to the plain-
tiff’s benefit and when the plaintiff was awarded the
property that enjoyed an appreciation in value and net
equity as a result of the mortgage debt.’’ In Greco v.
Greco, 275 Conn. 348, 361, 880 A.2d 872 (2005), our
Supreme Court reversed financial orders that resulted
in an income deficit following payment of alimony and
insurance premiums. In contrast, here the plaintiff is
not saddled with any debt by the court, and she has
not been ordered to pay anything by the court. She will
receive a payment of $225,000 from the defendant, will
receive $3000 a month in alimony, and will obtain 90
percent of the remaining $639,200 Sandler distribution
if Sandler chooses to make the distribution. She claims
that this will be inadequate to pay her debts and
expenses. These are debts and expenses of her own
making, and the defendant has similar debts and
expenses that his portion of the assets, even including
the equity in the home and the Sandler distribution that
he already used to pay down his debts somewhat, will
not cover. As the trial court stated, ‘‘both parties have,
to a very great extent, continued to live their lives over
the last three years of litigation as if nothing has hap-
pened financially. The court can only deal with what it
has been given and that is the reality of this case; it
will be up to the parties to make their respective
futures work.’’
The judgment is affirmed.
In this opinion the other judges concurred.
1
The trial court had incorporated into its July 9, 2014 memorandum of
decision certain findings it had made in its August 6, 2013 memorandum of
decision regarding pendente lite orders. We therefore include facts found
in both memoranda.
2
As we will discuss in this opinion, the defendant had already received
distributions from Sandler during the pendency of the divorce action, which
he used for his own benefit.
3
The plaintiff also claims that the court’s calculations do not work using
net income and the child support guidelines worksheets provided by the
parties. The plaintiff first raises this claim in her reply brief, therefore the
defendant was unable to reply to this argument aside from briefly touching
on it at oral argument before this court. As both this court and our Supreme
Court have stated, ‘‘we do not address claims raised for the first time in a
party’s reply brief.’’ Connecticut Coalition Against Millstone v. Connecticut
Siting Council, 286 Conn. 57, 87 n.29, 942 A.2d 345 (2008).
4
The court summarized the plaintiff’s violations as follows: ‘‘[L]eaving the
jurisdiction to avoid service; multiple violations of the exclusive possession
order to which she had agreed; taking personal items from the marital home;
stealing the defendant’s garbage from the marital home [while] searching
for potential evidence to use against her husband; stealing a computer hard
drive used by the defendant from the marital home; copying the data on
that hard drive and showing it to others even though some of that material
was clearly covered by prior court orders . . . regarding confidentiality
because it included information about the defendant’s former investors and
other restricted information relating to the defendant’s prior financial work;
accessing without permission e-mail accounts of the defendant; accessing
without permission various other online accounts of the defendant; and not
complying in a timely fashion with the court’s order directing the plaintiff
to turn over to a marshal certain electronic devices.’’
5
The court also discussed the significant expenditure of time and money
as a result of the plaintiff’s allegations that the defendant was hiding money
in offshore accounts. After extensive discovery, with which the discovery
special master found that the defendant fully complied, no ‘‘evidence to
support the allegations originally made by the plaintiff was ever provided
to the court.’’ It is not clear from the court’s memorandum whether the
plaintiff’s investigation into possible offshore accounts held by the defendant
was an additional basis for its finding of bad faith.
6
Both parties provided documentation of their respective loans. The
defendant maintains that the plaintiff’s documentation was suspect and
incomplete. The court did not make a finding as to the authenticity of either
parties’ documentation or otherwise consider it in its analysis; therefore,
we likewise do not consider the documentation in our analysis.