Powell-Ferri v. Ferri

 NANCY POWELL-FERRI v. PAUL
JOHN FERRI, JR.
(SC 19434)
Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Syllabus
The plaintiff appealed from the judgment of the trial court dissolving her
marriage to the defendant, who was the sole beneficiary of two trusts,
and granting certain other relief. Prior to the parties’ marriage, the
defendant’s father settled the first trust, which was used primarily for
investment purposes but was also used to fund certain improvements
to the marital home and to pay the parties’ taxes. After the commence-
ment of the dissolution action, the trustees of that trust decanted a
substantial portion of its assets to create a second, spendthrift trust for
the defendant’s sole benefit. In a related declaratory judgment action,
the court determined that the decanting was improper and ordered the
return of 75 percent of the assets to the first trust. The trial court in
the present case determined that the assets subject to that order were
marital property but declined to divide them equally as the plaintiff had
requested. In reaching its conclusion, the trial court recognized that any
assets remaining in the spendthrift trust following resolution of a pending
appeal in the declaratory judgment action were not marital property.
The trial court also denied the plaintiff’s motion for contempt, in which
the plaintiff had claimed that the rule of practice (§ 25-5) governing
automatic orders in dissolution proceedings required the defendant to
bring a civil action against the trustees to challenge the decanting of
assets, and ordered the defendant to pay attorney’s fees to the plaintiff
in an amount equal to what he paid his own attorneys, but only until
he made his first lump sum alimony payment. On appeal, the plaintiff
claimed that the trial court incorrectly found that she had not contributed
to the value of the first trust, improperly declined to find the defendant
in contempt, incorrectly failed to include the value of the spendthrift
trust in the marital estate, and improperly structured its award of attor-
ney’s fees. Held:
1. The plaintiff could not prevail on her claim that the trial court incorrectly
found that she did not contribute to the value of the first trust: even if
this court were to accept the plaintiff’s factual assertions as true, in
light of the conclusion set forth in Ferri v. Powell-Ferri (326 Conn. )
that the trustees’ decision to decant was proper and the fact that the
decanted assets could not be reached once they were placed into the
spendthrift trust, the assets from the first trust could not be considered
as part of the dissolution judgment and, thus, it was unnecessary to
consider the merits of the plaintiff’s arguments concerning her contribu-
tions to the value of the first trust.
2. The trial court did not abuse its discretion in declining to find the defendant
in contempt, this court having concluded that the automatic orders
required by Practice Book § 25-5 did not impose any affirmative obliga-
tion on the defendant to bring a separate action against the trustees for
lawfully decanting assets from the first trust; even if there were instances
in which a party could be required to take affirmative action to recover
marital assets, the trustees in the present did not engage in any illegal
activity and had not breached the terms of the first trust, and, because
the defendant was unaware of the decanting, he could not have assisted
in dissipation of marital assets or otherwise have engaged in the type
of intentional waste or selfish impropriety necessary to constitute dissi-
pation.
3. The trial court did not abuse its discretion in failing to consider the entire
value of the spendthrift trust as a marital asset on the ground that the
defendant possessed a chose in action for breach of fiduciary duty
against the trustees in an equal amount; although a chose in action
existing at the time of dissolution can be classified as an intangible
property interest subject to distribution in a dissolution proceeding, the
defendant in the present case possessed no such interest because the
trustees acted lawfully and in his best interest, and the plaintiff failed
to demonstrate that the trustees breached their fiduciary duty to the
defendant.
4. The trial court’s award of attorney’s fees did not constitute an abuse of
discretion: the structure of the trial court’s award of attorney’s fees,
which was based on the amount the defendant paid to his attorneys
and which terminated upon his first lump sum alimony payment, was
not an abuse of discretion in the absence of evidence that the defendant
had failed to pay his attorneys or would fail to do so in the future;
furthermore, the trial court did not abuse its discretion in determining
that the payment of some legal costs by the plaintiff would not undermine
its financial orders in light of the significant awards of alimony and
child support, substantial litigation expenses incurred by the defendant,
and the trial court’s other financial orders.
Argued November 12, 2015—officially released August 8, 2017
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, where the case was transferred to the
judicial district of Middlesex and tried to the court,
Munro, J.; judgment dissolving the marriage and grant-
ing certain other relief, from which the plaintiff
appealed. Affirmed.
Kenneth J. Bartschi, with whom were Karen L. Dowd
and, on the brief, Thomas P. Parrino and Laura R.
Shattuck, for the appellant (plaintiff).
Charles D. Ray, with whom were Sarah E. Murray
and, on the brief, Carole Topol Orland, for the appel-
lee (defendant).
Opinion
EVELEIGH, J. This appeal arises from an action dis-
solving the marriage of the plaintiff, Nancy Powell-Ferri,
and the defendant, Paul John Ferri, Jr. (Ferri). On
appeal, Powell-Ferri challenges numerous financial
orders entered by the trial court. Specifically, Powell-
Ferri asserts that the trial court incorrectly (1) deter-
mined that she did not contribute to a trust created by
Ferri’s father, Paul John Ferri, Sr., in 1983 (1983 trust),
(2) denied her motion for contempt, (3) determined
that a trust created in 2011 (2011 trust) was not a marital
asset, and (4) structured the award of attorney’s fees.
We disagree with Powell-Ferri and, accordingly, affirm
the judgment of the trial court.
In its memorandum of decision, the trial court set
forth the following relevant facts and procedural his-
tory. The trial court dissolved the parties’ marriage in
August, 2014, and entered financial orders. At the time
of dissolution, the parties had been married for nineteen
years and had three daughters, all of whom were
minors. Powell-Ferri was a homemaker throughout the
marriage, taking care of all three children and the family
household. For most of the marriage, the parties lived
in a home they owned in Farmington. Ferri briefly
worked for his father’s venture capital firm, Matrix Part-
ners, but for the majority of the marriage, his income
was derived from numerous Valvoline franchises (fran-
chises).
Ferri is the sole beneficiary of the 1983 trust. The
1983 trust is central to the underlying dissolution action,
and the parties’ use of the trust during the marriage
strongly informed the trial court’s financial orders. The
parties did not rely on the trust for their daily living
expenses. Ferri primarily used the 1983 trust for invest-
ment purposes. There were a few instances during the
marriage when the 1983 trust was not used for purely
investment purposes; for example, the trust provided
$300,000 toward home improvements and regularly paid
the parties’ taxes. The parties, in turn, regularly contrib-
uted their tax refund checks to the trust. Ferri also used
funds from the trust during the marriage to purchase
ownership interests in the franchises. In March, 2011,
while the underlying dissolution action was pending,
the trustees of the 1983 trust (trustees) created a second
trust whose sole beneficiary was Ferri (2011 trust).
The trustees then decanted a substantial portion of the
assets in the 1983 trust to the 2011 trust.
Throughout the divorce, the parties disputed the valu-
ation of the 1983 trust. The trustees valued the trust
at approximately $69 million, Powell-Ferri valued it at
approximately $98 million, and Ferri at approximately
$80.5 million. The majority of the trust value derived
from three assets: securities, hedge and investment
funds, and various limited liability companies related
to the franchises. The parties did not dispute the value
of the securities, as these were publicly traded. The
parties also did not contest the values of the limited
liability companies, which obtained ownership of the
franchises using, in part, funds from the 1983 trust.
Specifically, the trial court found that the 1983 trust
contributed between $5 million and $8 million toward
the acquisition of the franchises. The parties agreed that
the franchise related entities were worth approximately
$14.5 million. The parties did, however, dispute the
value of the hedge and investment fund assets. The
court engaged in a detailed and thorough analysis to
determine the value of these assets. In a related declara-
tory judgment action, the trial court found that the
trustees were not authorized to decant, and ordered
the trustees to return 75 percent of the assets to the
1983 trust,1 which the trial court in the present case
had determined was marital property.
Although the trial court determined 75 percent of the
assets transferred from the 1983 trust to be marital
property, it did not divide those assets equally as Pow-
ell-Ferri had requested. The trial court found that Pow-
ell-Ferri had requested too great a share of those assets
because the 1983 trust represented a sum of money
that the parties knew they had in reserve so that they
would ‘‘always be free from want or need in the lifestyle
they had established.’’ The trial court recognized that
the 1983 trust was ‘‘an asset that [Ferri] brought to the
marriage, that it is the initial product of the labor of
his father, not him, and that it should be left sufficiently
intact so that it may be used for investment . . . pur-
poses as [Ferri] had envisioned it.’’ The court also recog-
nized that whatever assets remained in the 2011 trust
following an appeal in the declaratory judgment action;
see footnote 1 of this opinion; were not marital assets
because Ferri had no present or future entitlement to
those funds.
On the basis of that separate action and the uncer-
tainty as to the validity of the decanting, the trial court
fashioned two alternative financial orders. The first
order contemplated a return of assets to the 1983 trust.
The second order assumed that the trustees’ decision
to decant was upheld on appeal and that the assets of
the 2011 trust were left undisturbed. Under the first
order, Ferri was required to pay Powell-Ferri $12 million
in lump sum alimony over the course of several years.
The trial court found that, under this scenario, it was
‘‘equitable to order a sufficient lump sum alimony [so]
that [Powell-Ferri] will have no need for dependency
on [Ferri] in the future.’’ Conversely, under the second
order, Ferri was required to pay, inter alia, $25,000 per
month in alimony.
As we explained more fully in the appeal pertaining
to the declaratory judgment action; Ferri v. Powell-
Ferri, 326 Conn. , A.3d (2017); the issue of
whether the trustees had the authority to decant the
assets of the 1983 trust into the 2011 trust, presented
a novel issue of Massachusetts law. Therefore, we certi-
fied the following three questions to the Massachusetts
Supreme Judicial Court: (1) ‘‘Under Massachusetts law,
did the terms of [the 1983 trust] empower [the] trustees
to distribute substantially all of its assets . . . to [the
2011 trust]?’’ (2) ‘‘If the answer to [the first question]
is ‘no,’ should either [75 percent] or [100 percent] of
the assets of the 2011 [t]rust be returned to the 1983
[t]rust to restore the status quo prior to the decanting?’’
(3) ‘‘Under Massachusetts law, should a court, in inter-
preting whether [Ferri’s father] intended to permit
decanting to another trust, consider an affidavit [from
him], offered to establish what he intended when he
created the 1983 [t]rust?’’ The Massachusetts Supreme
Judicial Court answered the first and third questions
in the affirmative. Ferri v. Powell-Ferri, 476 Mass. 651,
663–64, 72 N.E.3d 541 (2017). In Ferri v. Powell-Ferri,
supra, 326 Conn. , we adopt the Massachusetts
Supreme Judicial Court’s thorough and well reasoned
decision in full. On the basis of that decision, we
reversed the judgment of the trial court in the declara-
tory judgment action as it related to the decanting of
assets. Accordingly, the financial order that we must
consider in the present appeal is the one that did not
consider the assets decanted from the 1983 trust.
I
Powell-Ferri’s first claim on appeal is that the trial
court incorrectly determined that she did not contribute
to the value of the 1983 trust. Powell-Ferri identifies
two reasons why the trial court’s finding was incorrect:
(1) her homemaking efforts allowed Ferri to develop
the business assets that comprise a significant portion
of the 1983 trust; and (2) she regularly funded the 1983
trust by contributing substantial tax refund checks.
Even if we accept Powell-Ferri’s assertions in this
regard, the Massachusetts Supreme Judicial Court has
determined that the decanting was appropriate. Conse-
quently, the assets from the 1983 trust cannot be consid-
ered as part of the dissolution judgment in the
present case.
We begin our analysis with the standard of review
applicable to a trial court’s financial orders. ‘‘The stan-
dard 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 province of the trial court to find facts
and draw proper inferences from the evidence pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, 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
erroneous 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 mistake has been committed.’’ (Internal quotation
marks omitted.) Weinstein v. Weinstein, 280 Conn. 764,
774–75, 911 A.2d 1077 (2007).
As we explained previously in this opinion, the trial
court drafted two financial orders. The first order,
which was to be used if the decanting was found to be
improper, considered 75 percent of the original assets
from the 1983 trust. The second order, which would
continue in the event that the decanting was found to
be appropriate, did not include consideration of any
assets from either trust. Neither party has challenged
the latter. Because the Massachusetts Supreme Judicial
Court found that the trustees’ decision to decant was
proper, virtually all of the assets from the 1983 trust
were effectively transferred into the 2011 trust.
The 2011 trust is a spendthrift trust and, thus, is not
considered an asset of the marital estate that the court
may divide under General Statutes § 46b-81.2 ‘‘A trust
which creates a fund for the benefit of another, secures
it against the beneficiary’s own improvidence, and
places it beyond the reach of his creditors is a spend-
thrift trust.’’ Zeoli v. Commissioner of Social Services,
179 Conn. 83, 88, 425 A.2d 553 (1979). Because Powell-
Ferri obtained a judgment against Ferri for alimony
and child support, her status is that of a creditor. See
Spencer v. Spencer, 71 Conn. App. 475, 486, 802 A.2d
215 (2002). Although the court could divide those assets
while they were held in the 1983 trust, it could not
reach them once they were moved into the 2011 trust.
We note that, although the trial court could not con-
sider the assets decanted to the 2011 trust for equitable
distribution purposes, it could, and did, consider Ferri’s
ability to earn additional income when creating its ali-
mony orders under General Statutes § 46b-82.3 The trial
court awarded substantially more of the marital assets
to Powell-Ferri, including the marital home. The trial
court found that Powell-Ferri’s ‘‘ability to acquire future
assets [was] severely limited.’’ Conversely, the trial
court found that Ferri was ‘‘likely to quickly pick up
the pieces of his economic future after this case is over’’
and that the trust funds had routinely supported his
investments. Notably, the trial court ordered Ferri to
pay Powell-Ferri $300,000 in alimony annually, despite
the fact that, when the present action was commenced,
Ferri had been earning only $200,000 annually. Ferri
was also required to pay Powell-Ferri 20 percent of his
annual earnings over $500,000.
We have repeatedly recognized that ‘‘[i]n determining
the assignment of marital property under § 46b-81 or
alimony under § 46b-82, a trial court must weigh the
‘station’ or standard of living of the parties in light of
other statutory factors such as the length of the mar-
riage, employability, liabilities and needs of each of the
parties and the opportunity of each for future acquisi-
tion of capital assets and income.’’ Blake v. Blake, 207
Conn. 217, 232, 541 A.2d 1201 (1988). In the present
case, the trial court did weigh these statutory factors
when determining both the division of marital property
and the award of alimony. Accordingly, we cannot con-
clude that the trial court abused its discretion in declin-
ing to treat the 2011 trust as a marital asset.
Because the Massachusetts Supreme Judicial Court
determined that the decanting was proper, and because
those assets could not be reached once placed in the
2011 trust, we need not consider Powell-Ferri’s argu-
ments concerning contributions to the 1983 trust.
II
Powell-Ferri next claims that the trial court improp-
erly declined to find Ferri in contempt. Specifically,
Powell-Ferri claims that the trial court incorrectly found
that Ferri did not have an obligation under Practice
Book § 25-5 to bring an action against the trustees and
seek the return of the assets decanted from the 1983
trust. Powell-Ferri claims that, under § 25-5 (b), Ferri
had an obligation to resist the trustees because
decanting the 1983 trust was ‘‘the type of disruption to
the status quo the automatic orders are intended to
prevent,’’ and that the language of § 25-5 (b) ‘‘is suffi-
ciently capacious to include [Ferri’s] acquiescence . . .
as conduct that the orders prohibit.’’ We disagree. The
automatic orders do not impose any obligation on Ferri
to bring an action against the trustees for lawfully
decanting assets from the 1983 trust.
We begin with general principles of law and the appli-
cable standards of review. ‘‘Contempt is a disobedience
to the rules and orders of a court which has power to
punish for such an offense.’’ (Internal quotation marks
omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d
1021 (2007). A contempt judgment cannot stand when,
inter alia, the order a contemnor is held to have violated
is vague and indefinite, or when ‘‘the contemnor,
through no fault of his own, was unable to obey the
court’s order.’’ (Internal quotation marks omitted.) Id.
Consistent with the foregoing, when we review such a
judgment, we first consider the ‘‘threshold question of
whether the underlying order constituted a court order
that was sufficiently clear and unambiguous so as to
support a judgment of contempt.’’ Id., 693. This question
presents a legal inquiry subject to de novo review. Id.
‘‘Second, if we conclude that the underlying court order
was sufficiently clear and unambiguous, we must then
determine whether the trial court abused its discretion
in issuing, or refusing to issue, a judgment of contempt,
which includes a review of the trial court’s determina-
tion of whether the violation was wilful or excused by
a good faith dispute or misunderstanding.’’ Id., 693–94;
see also Parisi v. Parisi, 315 Conn. 370, 380, 107 A.3d
920 (2015); Ramin v. Ramin, 281 Conn. 324, 336, 915
A.2d 790 (2007); Eldridge v. Eldridge, 244 Conn. 523,
526–29, 710 A.2d 757 (1998); McGuire v. McGuire, 102
Conn. App. 79, 82, 924 A.2d 886 (2007).
We first note that the automatic orders do not apply
to the trustees’ actions. The automatic orders, by their
explicit terms, do not apply to nonparties. Practice
Book § 25-5 (b) (1) provides in relevant part: ‘‘Neither
party shall sell, transfer, exchange, assign, remove, or
in any way dispose of . . . any property . . . .’’
(Emphasis added.) Powell-Ferri recognizes this fact and
does not claim that the trustees violated the automatic
orders when they decanted assets from the 1983 trust.
Instead, she argues that Ferri violated the automatic
orders by failing to seek restoration of the decanted
assets through a civil action. Powell-Ferri makes this
claim despite the trial court’s finding that Ferri was
not involved in the decanting and did not otherwise
facilitate the creation of the 2011 trust. Powell-Ferri
has not challenged that finding in the present appeal.
In support of her conclusion that Ferri violated the
automatic orders, Powell-Ferri embarks upon an uncon-
vincing analysis of the term ‘‘ ‘dispose of’ ’’ in an attempt
to reach a definition that encompasses Ferri’s actions,
or lack thereof. Powell-Ferri ultimately declares that
‘‘ ‘dispose of’ ’’ is equivalent in meaning to ‘‘ ‘relin-
quish.’ ’’ Powell-Ferri suggests that, even though Ferri
did not take an active role in decanting the trust, he
nevertheless violated the automatic orders because he
‘‘relinquished’’ his right to 75 percent of the 1983 trust
when he failed to bring a civil action against the trustees
in order to recover those assets. This claim is not per-
suasive for two reasons.
First, Powell-Ferri’s interpretation of the obligations
imposed by Practice Book § 25-5 (b) is not supported
by any relevant case law. None of the cases in which
we have found dissipation of marital assets is factually
similar to the present case. ‘‘Generally, dissipation is
intended to address the situation in which one spouse
conceals, conveys or wastes marital assets in anticipa-
tion of a divorce. . . . Most courts have concluded that
some type of improper conduct is required before a
finding of dissipation can be made. Thus, courts have
traditionally recognized dissipation in the following par-
adigmatic contexts: gambling, support of a paramour,
or the transfer of an asset to a third party for little or
no consideration. Well-defined contours of the doctrine
are somewhat elusive, however, particularly in more
factually ambiguous situations.’’ (Citation omitted; foot-
note omitted.) Gershman v. Gershman, 286 Conn. 341,
346–47, 943 A.2d 1091 (2008). The facts here do not
involve any of the traditionally recognized paradigmatic
contexts, and, thus, we must determine whether the
present case is one of the rare factually ambiguous
situations which nevertheless constitutes dissipation.
It is not.
Powell-Ferri has failed to convince us that Ferri’s
failure to bring an action against the trustees was equiv-
alent to a dissipation of marital property in violation
of Practice Book § 25-5 (b) (1). Powell-Ferri claims that
several cases, both from this court and other jurisdic-
tions establish that Ferri’s failure to pursue recovery
of the 1983 trust assets is equivalent to dissipation of
marital assets. Specifically, Powell-Ferri claims that
Finan v. Finan, 287 Conn. 491, 949 A.2d 468 (2008), and
Gershman v. Gershman, supra, 286 Conn. 341, establish
that Ferri’s decision not to bring an action against the
trustees constitutes the ‘‘sort of dissipation’’ that the
automatic orders are intended to prevent. Powell-Ferri
overlooks a fundamental distinction between those
cases and the present case. In Gershman v. Gershman,
supra, 351, the defendant was accused of dissipating
marital assets because he made bad investments and
he spent marital assets on an excessively expensive
marital home. In Finan v. Finan, supra, 494, the plaintiff
claimed that the defendant had dissipated marital assets
because he spent large sums of money prior to the
parties’ separation. Both of these cases involved actions
taken directly by one of the parties, not by an unrelated
third party. There is no allegation in the present case
that Ferri engaged in any affirmative act to remove
assets from the 1983 trust.
Powell-Ferri also claims that numerous cases from
other jurisdictions support her conclusion that Ferri’s
failure to act violated Practice Book § 25-5 (b) (1). These
cases are also inapposite. For example, in In re Mar-
riage of Cook, 117 Ill. App. 3d 844, 853–54, 453 N.E.2d
1357 (1983), the court found that a husband had dissi-
pated marital assets because he stopped paying the
mortgages and taxes on various properties the couple
owned. Likewise, in In re Marriage of Thomas, 239 Ill.
App. 3d 992, 995, 608 N.E.2d 585 (1993), the court found
that a husband had dissipated marital assets because he
caused the couple’s business to become less profitable
‘‘either through his inattention to the quality of service
the corporation was supplying its clients or through
his failure to solicit additional clients or through his
outright stealing of clients for his new business.’’ Addi-
tionally, in Heins v. Heins, 783 S.W.2d 481, 484–85 (Mo.
App. 1990), the court found that a husband had dissi-
pated marital assets when he purposefully failed to pay
the mortgage in order to have his wife removed from
the marital home. Finally, in Maggiore v. Maggiore, 91
A.D. 3d 1096, 1096–97, 937 N.Y.S.2d 366 (2012),
the trial court found that a defendant had dissipated
marital assets after he failed to make mortgage pay-
ments. In that case, the trial court had given the defen-
dant authority to remove money from a retirement
account to make mortgage payments, but he instead
used the money for personal purposes. Id., 1097. In
all of these cases cited by Powell-Ferri, the finding of
dissipation rested on actions taken directly by a party
or because of that party’s failure to continue fulfilling
a preexisting financial obligation that resulted in the
loss of marital assets. In none of these cases did the
court find that a party to a dissolution proceeding had
an obligation to file a separate civil action in order to
recover assets from a third party.
Second, Powell-Ferri’s argument is not supported by
our rules of practice. Nothing in our rules of practice
requires a party to file an action against a third party
whenever he or she may have a viable cause of action,
particularly when the third party acted lawfully and in
that party’s best interest. There are numerous reasons
why a party may choose not to bring an action. The
trial court found that Ferri declined to take action
because he did not want to bring an action against his
family and because he believed that the trustees acted
in his best interest. Even if Ferri believed that he would
be successful in an action against the trustees, he rea-
sonably could have concluded it would not be worth
alienating his family to recover discretionary control
over assets that he evinced little interest in using.
Furthermore, imposing an obligation on parties in
divorce proceedings to bring separate actions against
third parties, particularly when that party feels that
filing such an action is against their best interest, is
poor public policy and could lead to untenable results.
For example, if a party was obligated to bring such an
action whenever their spouse claimed that they are
potentially entitled to recover damages, that party may
feel compelled to bring such an action by the prospect
of sanctions for dissipation of assets. If that separate
action fails, however, that same party may then be
accused of dissipating assets by pursuing a meritless
civil claim.
The automatic orders do not require Ferri to take all
conceivable actions to recover assets not under his
control. Powell-Ferri claims that Practice Book § 25-5
(b) (1) prohibits Ferri’s ‘‘acquiescence’’ in the trustees’
decanting because that omission amounts to a disposi-
tion of a marital asset. Even if there were instances in
which a party would be required to take an affirmative
action to recover marital assets, this is not such a case.
The Massachusetts Supreme Judicial Court held that
the trustees were permitted to decant assets from the
1983 trust to the 2011 trust. The trustees, therefore, did
not engage in any illegal activity and did not breach
any conditions of the 1983 trust agreement. Powell-
Ferri also did not establish that Ferri was aware of the
creation of the 2011 trust before it occurred, let alone
that he was somehow involved in the decanting of
assets. Because Ferri was unaware of the decanting,
he could not have taken any affirmative acts or in any
way assisted in the dissipation of marital assets. Ferri
did not affirmatively engage in the type of intentional
waste or selfish impropriety necessary to constitute
dissipation. See Gershman v. Gershman, supra, 286
Conn. 350–51; see also Ferri v. Powell-Ferri, 317 Conn.
223, 225, 116 A.3d 297 (2015) (‘‘[w]e conclude that this
state does not require a party to a dissolution action
to take affirmative steps to recover marital assets taken
by a third party’’). We therefore reject Powell-Ferri’s
claim that § 25-5 (b) (1) required Ferri to bring an action
against the trustees, and, therefore, we conclude that
the trial court properly declined to find Ferri in
contempt.
III
Powell-Ferri also claims that the value of the entire
2011 trust, not just the 75 percent that the trial court
ordered returned, should have been designated as mari-
tal property because Ferri has a chose in action for
the entire value of the 1983 trust. The Massachusetts
Supreme Judicial Court held that the trustees were
authorized to decant all of the assets, and, therefore,
none of the 1983 trust is a marital asset. Powell-Ferri
argues that even if the trustees acted lawfully and Ferri
believes that their actions were in his best interest, he
nevertheless has a concrete chose in action for breach
of fiduciary duty against the trustees that the trial court
should have considered as a marital asset. We disagree.
We review the trial court’s decision to disregard Pow-
ell-Ferri’s chose of action claim in fashioning its finan-
cial orders for abuse of discretion. See Weinstein v.
Weinstein, supra, 280 Conn. 774–75; see also Hornung
v. Hornung, 323 Conn. 144, 152, 146 A.3d 912 (2016)
(‘‘financial orders in family matters are generally
reviewed for an abuse of discretion’’).
Powell-Ferri does not dispute that the trial court cor-
rectly recognized that the 2011 trust was not marital
property because it was a spendthrift trust. See Zeoli
v. Commissioner of Social Services, supra, 179 Conn.
88 (‘‘[a] trust which creates a fund for the benefit of
another, secures it against the beneficiary’s own
improvidence, and places it beyond the reach of his
creditors is a spendthrift trust’’); Cooley v. Cooley, 32
Conn. App. 152, 169, 628 A.2d 608 (judgment in dissolu-
tion action established former spouse’s status as judg-
ment creditor), cert. denied, 228 Conn. 901, 634 A.2d
295 (1993). The Massachusetts Supreme Judicial Court
determined that the decanting of the 1983 trust was
permitted, meaning that virtually all of the trust assets
were beyond the trial court’s consideration in the disso-
lution action. Nevertheless, Powell-Ferri asserts that
the trial court should have considered the entire 2011
trust as marital property because Ferri had a chose in
action against the trustees for breach of fiduciary duty.
We are not persuaded.
Powell-Ferri fails to establish that Ferri had a chose
in action that the court could have distributed. A chose
in action can be classified as an intangible property
interest subject to distribution under § 46b-81 only if
Ferri possessed an existing cause of action for breach
of fiduciary duty at the time of dissolution. See Mickey
v. Mickey, 292 Conn. 597, 624–25 n.20, 974 A.2d 641
(2009). In general, a claim must have been asserted or
commenced in order to be recognized as a chose in
action. ‘‘A chose in action is not potential or inchoate
but rather is an issue that has been the subject of litiga-
tion or, at the very least, is in the process of being
litigated. Where a putative claim has neither been
asserted nor commenced, the person who has the claim
can only be said to have a ‘potential’ chose in action.’’
(Footnote omitted.) 73 C.J.S. 8, Property § 5 (2004).
This court has also recognized that when an individual
has been given the right to receive a promised benefit
under certain prescribed conditions, and is denied that
benefit, he or she may have a chose in action in contract.
For example, a pensioner who has attained a prescribed
age and fulfilled a required number of years of service
to the employer would have a chose in action in contract
against the employer if the employer refused to pay.
Bornemann v. Bornemann, 245 Conn. 508, 517, 752
A.2d 978 (1998). This is because the pension benefits
created in their holder an enforceable contract right,
and not a mere expectancy. The present case, however,
represents an entirely different scenario. Although Ferri
became entitled to withdraw an increasing amount of
principal from the 1983 trust as he aged, this right was
not the product of a contract for which both parties
provided consideration. Instead, Ferri’s father created
the trust for Ferri’s benefit and, in doing so, dictated
the terms by which Ferri could access the funds. As the
Massachusetts Supreme Judicial Court has determined,
Ferri’s father included a provision allowing the trustees
to decant the entire trust at any time, meaning that
Ferri could not pursue an action for breach of contract
based on the decanting. Furthermore, the trustees were
not required to distribute funds unless Ferri, who is the
only beneficiary, requested them. He did not. There is
no chose of action because the trustees acted lawfully
and in Ferri’s best interest. Furthermore, Ferri did not
assert a claim against the trustees for breach of fidu-
ciary duty, and there is no evidence that he ever intends
to do so.
Moreover, Powell-Ferri does not point to any evi-
dence that the trustees breached their fiduciary duty
to Ferri. The trial court found that ‘‘[a]s of yet, there
has been no finding of a breach of duty by them, not-
withstanding Powell-Ferri’s vigorous argument that
such a finding has already been made by this court.
. . . There is no specter of harmful conduct imminent
or proposed by the trustees.’’ (Citation omitted.) In
response, Powell-Ferri gives two reasons why Ferri
should bring an action against the trustees for breach
of fiduciary duty. Neither is convincing. Powell-Ferri
first asserts that the trustees stripped Ferri of a thing
of value—namely, his ability to withdraw the principal
from the 1983 trust. Powell-Ferri asserts that the
decanting was ‘‘patently unreasonable because no court
would distribute to [her] the entire 1983 trust corpus
. . . .’’ Powell-Ferri claims that, because at the time of
decanting Ferri was able to withdraw funds from the
1983 trust, he was objectively worse off after those
funds were transferred into the 2011 trust. Powell-Ferri
claims that even if the court had awarded her one half
of the 1983 trust, as she had requested, Ferri would be
better off having unfettered access to the remainder.
Powell-Ferri’s assertion is contradicted by Ferri’s tes-
timony and the parties’ use of the 1983 trust throughout
the marriage. The trial court found that Ferri declined
to challenge the decanting in court because he did not
want to bring a civil action against his family, because
he thought that the trustees acted in his best interest,
and because he did not think that Powell-Ferri should
share in any of the assets of the 1983 trust. Furthermore,
Ferri envisioned the trust as being for investment pur-
poses. The parties’ conduct prior to divorce supports
Ferri’s assertion. Throughout the course of the mar-
riage, the parties rarely used the 1983 trust assets. Apart
from funding a renovation of the marital home and
paying the parties’ taxes, the 1983 trust was used only
for investing in the franchises. There is no evidence that
Ferri ever intended to withdraw a substantial portion of
the 1983 trust.
Powell-Ferri also claims that Ferri has a chose in
action because decanting of the trust assets may have
exposed him and the trust to substantial tax liability.
Powell-Ferri cites numerous tax provisions but presents
no evidence that Ferri or the trust has actually incurred
such a liability. Furthermore, even if this court was to
assume that such a liability existed, Powell-Ferri does
not indicate what the amount of that liability would be.
If, for example, the tax liability was equal to 49.9 percent
of the decanted assets, Ferri could still think that he was
better off paying those taxes than if the court granted
Powell-Ferri the 50 percent that she sought. Accord-
ingly, we conclude that the trial court did not abuse its
discretion in failing to consider the value of the 2011
trust as a marital asset.
IV
Powell-Ferri also claims that the trial court incor-
rectly structured the award of attorney’s fees in the
dissolution action. Specifically, Powell-Ferri asserts
that the trial court abused its discretion in fashioning
the award of attorney’s fees because that award
depended on the dollar amount Ferri paid to his own
attorneys and ended when Ferri made his first lump
sum alimony payment. Powell-Ferri asserts that the trial
court’s order allowed Ferri to avoid paying any of Pow-
ell-Ferri’s attorney’s fees by not paying his attorneys
until after he had made the first lump sum alimony
payment. We disagree.
The following additional facts are relevant to our
resolution of this claim. The trial court found that there
were ‘‘insufficient funds available for [Powell-Ferri] to
pay her fees and costs related to this litigation . . . .’’
The trial court concluded that requiring Powell-Ferri
to bear ‘‘these costs would be unduly burdensome and
result in an undermining of these financial orders
. . . .’’ Therefore, the trial court ordered Ferri to pay
Powell-Ferri’s attorneys an amount equal to what he
paid his own attorneys. The trial court, however, limited
this obligation to the amount Ferri owed his attorney
at the time of trial.
We begin with the applicable standard of review.
‘‘Courts ordinarily award counsel fees in divorce cases
so that a party . . . may not be deprived of [his or] her
rights because of lack of funds. . . . Where, because of
other orders, both parties are financially able to pay
their own counsel fees they should be permitted to do
so. . . . An exception to the rule . . . is that an award
of attorney’s fees is justified even where both parties
are financially able to pay their own fees if the failure
to make an award would undermine its prior financial
orders . . . . Whether to allow counsel fees . . . and
if so in what amount, calls for the exercise of judicial
discretion. . . . An abuse of discretion in granting
counsel fees will be found only if [an appellate court]
determines that the trial court could not reasonably
have concluded as it did.’’ (Internal quotation marks
omitted.) Jewett v. Jewett, 265 Conn. 669, 694, 830 A.2d
193 (2003).
Powell-Ferri argues that Ferri can easily avoid paying
attorney’s fees because of the manner in which the trial
court structured its award. She contends that, under
the trial court’s order, all Ferri has to do is not pay his
attorneys, or at least wait to pay them until after he
makes his first installment of the lump sum alimony.
The claim is premised upon the fact that the obligation
to pay the plaintiff’s attorneys was contingent on what
the defendant pays his own attorneys and ends upon
the first installment of lump sum alimony. Powell-Ferri
maintains that the award defies logic because ir does
not correlate to the stated objective and allows the
obligor to manipulate his obligation to pay attorney’s
fees.
In the present case, there is no evidence in the record
that Ferri has not paid his attorneys or that he will fail
to do so in the future. Further, the trial court did not
abuse its discretion in determining that payment of
some, but not all, of Powell-Ferri’s legal costs would
not undermine its other orders. Specifically, the trial
court awarded Powell-Ferri significant alimony and
child support, and required Ferri to pay the cost of the
children’s private secondary and college educations.
Furthermore, the trial court credited evidence estab-
lishing that Ferri had incurred substantial expenses as
a result of this litigation. Accordingly, we conclude that,
in light of all of the other financial orders and the cir-
cumstances of the parties in the present case, the trial
court’s award of attorney’s fees did not constitute an
abuse of discretion.4
The judgment is affirmed.
In this opinion the other justices concurred.
* This case was originally argued before a panel of this court consisting
of Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson.
Thereafter, Justice Zarella retired from this court and did not participate in
the consideration of the case. The listing of judges reflects their seniority
status on this court as of the date of oral argument.
1
Ferri’s appeal from that judgment is the subject of our decision in Ferri
v. Powell-Ferri, 326 Conn. , A.3d (2017), which we also
release today.
2
General Statutes § 46b-81 provides: ‘‘(a) At the time of entering a decree
annulling or dissolving a marriage or for legal separation pursuant to a
complaint under section 46b-45, the Superior Court may assign to either
spouse all or any part of the estate of the other spouse. The court may pass
title to real property to either party or to a third person or may order the
sale of such real property, without any act by either spouse, when in the
judgment of the court it is the proper mode to carry the decree into effect.
‘‘(b) A conveyance made pursuant to the decree shall vest title in the
purchaser, and shall bind all persons entitled to life estates and remainder
interests in the same manner as a sale ordered by the court pursuant to the
provisions of section 52-500. When the decree is recorded on the land records
in the town where the real property is situated, it shall effect the transfer
of the title of such real property as if it were a deed of the party or parties.
‘‘(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
General Statutes § 46b-82 provides: ‘‘(a) 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. The order may direct that security be given therefor on such terms as
the court may deem desirable, including an order pursuant to subsection
(b) of this section or an order to either party to contract with a third party
for periodic payments or payments contingent on a life to the other party.
The court may order that a party obtain life insurance as such security
unless such party proves, by a preponderance of the evidence, that such
insurance is not available to such party, such party is unable to pay the
cost of such insurance or such party is uninsurable. 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.
‘‘(b) If the court, following a trial or hearing on the merits, enters an order
pursuant to subsection (a) of this section, or section 46b-86, and such
order by its terms will terminate only upon the death of either party or the
remarriage of the alimony recipient, the court shall articulate with specificity
the basis for such order.
‘‘(c) Any postjudgment procedure afforded by chapter 906 shall be avail-
able to secure the present and future financial interests of a party in connec-
tion with a final order for the periodic payment of alimony.’’
4
Powell-Ferri has been required to pay her own attorney’s fees during
the pendency of the appeal because this court granted a motion to stay.
The termination of this appeal, however, does not end Ferri’s obligation to
pay attorney’s fees pursuant to the original order. As counsel for Ferri
conceded in its opposition to the motion for stay, at the conclusion of the
appeal, Ferri is obligated to pay Powell-Ferri the amounts owed under the
original order even if he paid those amounts to his own attorneys during
the appeal. Having successfully defeated Powell-Ferri’s motion to terminate
stay, he would be judicially estopped from arguing that full payment to his
attorneys during the appeal would end his obligation. See Dougan v. Dougan,
301 Conn. 361, 372–73, 21 A.3d 791 (2011).