Reville v. Reville

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REVILLE v. REVILLE—CONCURRENCE AND DISSENT
ZARELLA, J., concurring in part and dissenting in
part. The majority concludes that the trial court improp-
erly denied the motion of the plaintiff, Catherine Reville,
to open and set aside the judgment dissolving her mar-
riage to the defendant, John Reville, on the basis of
allegations that the defendant committed fraud by fail-
ing to disclose an unvested pension benefit on his finan-
cial affidavits during predissolution settlement nego-
tiations. The majority specifically disagrees with the
trial court’s determination that (1) it was necessary to
resolve the question of whether the benefit constituted
distributable marital property under General Statutes
(Rev. to 2001) § 46b-81 in order to determine whether
the defendant committed fraud, (2) the law at the time
of the dissolution proceedings definitively established
that the benefit did not constitute distributable marital
property, and (3) in light of the foregoing, there was
no need to consider evidence of the value of the benefit
in deciding whether the defendant committed fraud.
Rather, the majority concludes that the defendant was
‘‘legally obligated’’ to disclose the existence and charac-
teristics of the unvested pension benefit during the pre-
dissolution settlement negotiations, regardless of
whether the benefit constituted distributable marital
property. The majority also concludes that the trial
court’s decision not to allow expert testimony on the
value of the benefit undermined its factual finding that
the defendant disclosed the benefit to the plaintiff, thus
causing the court to commit reversible evidentiary error
when it determined that the defendant did not commit
fraud. I disagree with these conclusions because the
majority disregards the legal grounds on which the
plaintiff’s motion to open was based, namely, that the
unvested pension benefit constituted distributable mar-
ital property and that the defendant’s failure to disclose
it not only caused her to rely to her detriment on a false
representation of his assets, but was a clear violation of
the parties’ separation agreement. The majority also
misconstrues this court’s precedent on the disclosure
of property interests in dissolution proceedings and
takes an untenable position with respect to the trial
court’s factual finding that the defendant disclosed the
benefit to the plaintiff. Accordingly, although I join in
part III of the majority’s opinion regarding the plaintiff’s
burden of proof, I respectfully dissent from parts I
and II.
I
The majority first concludes that the trial court was
not required to determine whether the defendant’s
unvested pension benefit constituted distributable mar-
ital property in May, 2001, because ‘‘any retirement or
employment benefit potentially receivable by a party
to a dissolution action should be disclosed [in] that
party’s financial affidavit along with all known details
as to its value, vesting requirements and current status
. . . regardless of whether it . . . [is] classified as dis-
tributable marital property.’’ (Emphasis omitted; foot-
notes omitted.) I disagree.
The majority loses sight of the legal grounds on which
the plaintiff’s motion was based. The plaintiff’s original
motion alleged that the defendant committed fraud
when he failed to disclose in his financial affidavit ‘‘a
significant asset which would have been property sub-
ject to division under § 46b-81,’’ specifically, an
unvested pension benefit of substantial value.1 (Empha-
sis added.) Approximately four months later, the plain-
tiff requested permission to amend her motion in order
to allege, as a second ground on which to open the
judgment, that the defendant’s failure to disclose the
benefit was a violation of the parties’ separation agree-
ment. Paragraph 13.11 of the separation agreement pro-
vided in relevant part: ‘‘If it is established by a prepon-
derance of the evidence that a party misrepresented or
intentionally concealed a property interest, the effect
thereof or an important characteristic thereof, the inter-
est of the concealing party will be transferred in full
to the nonconcealing party and the concealing party
will pay all costs, fees, expenses, attorney’s fees, and
damages of the nonconcealing party caused by said
concealment.’’ (Emphasis added.) The plaintiff noted
that the proposed amendment would allow her to seek
enforcement of the remedies established by paragraph
13.11, which she claimed were ‘‘appropriate and com-
mensurate’’ with the allegations of nondisclosure and
fraud in her original motion.2 In other words, a determi-
nation that the benefit constituted distributable marital
property on the date of dissolution would allow the
plaintiff to seek 100 percent of the benefit’s value with-
out subjecting all of the parties’ other assets to further
review and distribution by the court. Consequently,
there can be no doubt that the principal issue raised
in the plaintiff’s motion required the trial court to make
an initial determination as to whether the defendant’s
unvested pension benefit constituted distributable mar-
ital property.
The language in § 46b-81 also indicates that any
resource3 subject to assignment must be identified as
property. As previously stated, the clearly articulated
purpose of the plaintiff’s motion was to obtain the full
value4 of the defendant’s unvested pension benefit
under § 46b-81, which provides in relevant part: ‘‘(c) In
fixing the nature and value of the property, if any, to
be assigned, the court . . . shall consider the length
of the marriage, the causes for the . . . dissolution of
the marriage . . . the age, health, station, occupation,
amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each of
the parties and the opportunity of each for future acqui-
sition of capital assets and income. . . .’’ There is noth-
ing in this language suggesting that a resource that is
subject to assignment can be considered anything other
than property. Accordingly, in addressing the plaintiff’s
claim that the unvested pension benefit was a resource
subject to assignment that should have been disclosed,
the trial court was required under § 46b-81 to determine
initially whether the benefit constituted property.
This threshold determination also was required under
the law that existed when the parties’ divorce was final-
ized in May, 2001, which is the law that must be applied
in resolving the issues in this case. Prior to that time,
this court consistently took the position that, when it
was unclear whether a particular resource was subject
to division under § 46b-81, a determination first must
be made as to whether it constituted property. For
example, only six years earlier, the court had stated in
Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (1995),
that the ‘‘first’’ step in considering the equitable distribu-
tion of resources in a dissolution proceeding is to deter-
mine ‘‘whether the resource is property within [the
meaning of] § 46b-81 . . . .’’ Id., 792. Moreover, this
was not a newly created principle but had been articu-
lated and applied before Krafick, and continued to be
applied thereafter. See, e.g., Lopiano v. Lopiano, 247
Conn. 356, 367, 752 A.2d 1000 (1998) (personal injury
award deemed subject to equitable distribution follow-
ing determination that award constituted property
under § 46b-81); Bornemann v. Bornemann, 245 Conn.
508, 518, 752 A.2d 978 (1998) (unvested stock options
in which employee had enforceable right deemed sub-
ject to equitable distribution following determination
that options constituted property under § 46b-81); Sim-
mons v. Simmons, 244 Conn. 158, 168, 708 A.2d 949
(1998) (medical degree not subject to equitable distribu-
tion because degree did not constitute property under
§ 46b-81); Rubin v. Rubin, 204 Conn. 224, 225, 232, 527
A.2d 1184 (1987) (interest in revocable inter vivos trust
not subject to equitable distribution because trust did
not constitute property under § 46b-81); Krause v.
Krause, 174 Conn. 361, 364–65, 387 A.2d 548 (1978)
(potential inheritance not subject to equitable distribu-
tion because it did not constitute property under prede-
cessor to § 46b-81). Consequently, the trial court
properly began its analysis of the plaintiff’s claim by
considering whether the defendant’s unvested pension
benefit constituted distributable marital property.5
II
The trial court ultimately determined that the defen-
dant ‘‘did not have an ‘existing enforceable right’ in the
[unvested pension benefit], which was, therefore, not
marital property subject to division pursuant to . . .
§ 46b-81.’’ I agree with this conclusion and believe the
plaintiff’s motion should have been denied on that
ground. The trial court nonetheless conducted another
hearing to consider the question of fraud because the
defendant’s failure to bring the benefit to the attention
of the plaintiff and the court during the litigation or to
include it, ‘‘if only as a footnote, on his financial affida-
vit, prevented the court from fully performing its statu-
tory duty under General Statutes [Rev. to 2001] § 46b-
66 to find the agreement of the parties to be fair and
equitable under all the circumstances, and/or to other-
wise give due consideration to this factor in its award
of alimony.’’6 The majority likewise concludes that the
unvested pension benefit should have been disclosed
in May, 2001, regardless of its status as property. In
reaching that conclusion, the majority relies on (1) the
principle of full and frank disclosure articulated in Bill-
ington v. Billington, 220 Conn. 212, 219–22, 595 A.2d
1377 (1991), (2) the discussion of unaccrued pension
rights in Thompson v. Thompson, 183 Conn. 96, 100,
438 A.2d 839 (1981), (3) the holding in Bender v. Bender,
258 Conn. 733, 749, 785 A.2d 197 (2001), that unvested
pension benefits constitute distributable marital prop-
erty, which the majority claims the defendant should
have anticipated when preparing his financial affidavits,
and (4) several statutory provisions pertaining to finan-
cial orders in dissolution proceedings. See General Stat-
utes (Rev. to 2001) § 46b-667 (court shall consider
‘‘financial resources . . . of the spouses’’ in reviewing
separation agreements for fairness and equity); General
Statutes (Rev. to 2001) § 46b-81 (c)8 (court shall con-
sider, inter alia, ‘‘the opportunity of each [party] for
future acquisition of capital assets and income’’ in dis-
tributing marital property); General Statutes (Rev. to
2001) 46b-829 (court shall consider, inter alia, ‘‘[each
party’s] amount and sources of income’’ in ordering
alimony). In my view, none of these authorities supports
the majority’s conclusion.
A
The majority first determines that the defendant
should have disclosed the unvested pension benefit in
his financial affidavits under the principle of full and
fair disclosure set forth by this court in Billington. To
the extent the court in Billington articulated a principle
of general applicability that might have guided the trial
court in May, 2001, however, it was limited to the accu-
racy of the information provided by the parties regard-
ing assets or interests that they knew were subject to
disclosure under the relevant rules of practice, statutory
provisions, and existing judicial precedent at that time.
It is therefore improper for the majority to rely on
Billington in concluding that the defendant should have
disclosed his unvested pension benefit, regardless of
its status as distributable marital property. As the court
in Billington explained: ‘‘Our [rules of practice have]
long required that at the time a dissolution of marriage
. . . is claimed for a hearing, the moving party shall
file a sworn statement . . . of current income,
expenses, assets and liabilities, and pertinent records
of employment, gross earnings, gross wages and all
other income. . . . The opposing party is required to
file a similar affidavit at least three days before the date
of the hearing . . . .
‘‘Our cases have uniformly emphasized the need for
full and frank disclosure in that affidavit. A court is
entitled to rely upon the truth and accuracy of sworn
statements required by [the rules of practice], and a
misrepresentation of assets and income is a serious and
intolerable dereliction on the part of the affiant which
goes to the very heart of the judicial proceeding. . . .
These sworn statements have great significance in
domestic disputes in that they serve to facilitate the
process and avoid the necessity of testimony in public
by persons still married to each other regarding the
circumstances of their formerly private existence.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Billington v. Billington, supra, 220
Conn. 219–20.
The majority takes this language out of context and
applies it in a manner unintended by the Billington
court. The quoted passage in Billington had nothing to
do with whether a particular resource was subject to
disclosure but with the parties’ obligation to disclose
the true value of a resource previously disclosed as
property in their financial affidavits.10 See id. Conse-
quently, it was the quality, amount and accuracy of the
information provided by the defendant regarding the
value of the resource, not whether the resource should
have been disclosed in the first place, to which the
court was referring in the quoted passage. See id. In
fact, to my knowledge, this court never has relied on
the principle of full and fair disclosure, either before
or after Billington, in determining whether a resource
was subject to disclosure when the law was unclear as
to whether it should have been disclosed by the parties
or considered by the trial court in entering its financial
orders. See, e.g., Bender v. Bender, supra, 258 Conn.
749; Lopiano v. Lopiano, supra, 247 Conn. 367;
Bornemann v. Bornemann, supra, 245 Conn. 518; Sim-
mons v. Simmons, supra, 244 Conn. 164; Krafick v.
Krafick, supra, 234 Conn. 798; Rubin v. Rubin, supra,
204 Conn. 232; Thompson v. Thompson, supra, 183
Conn. 100; Krause v. Krause, supra, 174 Conn. 364–65.
Even in Weinstein v. Weinstein, 275 Conn. 671, 882
A.2d 53 (2005), which the majority cites but was decided
four years following dissolution of the parties’ marriage
in the present case, the court invoked the principle
of full and fair disclosure in discussing the allegedly
fraudulent valuation of a resource the defendant pre-
viously had disclosed in his financial affidavit, not in
determining whether an undisclosed resource should
have been disclosed by the defendant. Id., 686–88; see
also Friezo v. Friezo, 281 Conn. 166, 181–83, 191–93,
914 A.2d 533 (2007).
The majority does not put the cart before the horse
but, rather, forgets the horse entirely. Only if it had
been undisputed, which was not the case here, or the
trial court had concluded, that the benefit was distribut-
able marital property would it be appropriate for this
court to apply the principle of full and fair disclosure
in determining whether the defendant had committed
fraud. Indeed, that is why, as previously discussed, the
principle never has been applied to settle the question
of whether a disputed resource should be disclosed in
a dissolution proceeding. It is also why the trial court
in the present case properly began its analysis, as other
courts had done numerous times before, by considering
whether the unvested pension benefit constituted dis-
tributable marital property.
The standard of full and fair disclosure, when applied
to every resource, including a resource that has never
been identified as property, is too broad to provide the
parties and the courts with adequate guidance as to
when disclosure is required because it provides no basis
for distinguishing between resources that require dis-
closure and those that do not. In other words, without
more specific guidance, parties would be required to
disclose on their financial affidavits every conceivable
resource, both present and future, to which they might
be entitled, including a medical degree, a potential
inheritance, or an interest in a revocable inter vivos
trust, all of which this court had determined prior to
May, 2001, were not interests subject to equitable distri-
bution. See Simmons v. Simmons, supra, 244 Conn.
168 (medical degree); Rubin v. Rubin, supra, 204 Conn.
232 (revocable inter vivos trust); Krause v. Krause,
supra, 174 Conn. 364–65 (potential inheritance). In con-
trast, when applied to a resource that the parties agree
must be disclosed, such as income, real estate or a
vested pension benefit, ‘‘full and fair disclosure’’ is eas-
ily understood and properly construed as referring to
all of the available information regarding the nature
and value of the resource. Consequently, the majority
improperly relies on the principle of full and fair disclo-
sure in concluding that the defendant should have dis-
closed his unvested pension benefit to the plaintiff in
May, 2001.
B
The majority also relies on Thompson v. Thompson,
supra, 183 Conn. 96, for the proposition that disclosure
was required because a trial court may consider a par-
ty’s ‘‘unaccrued pension benefits as [a] source of future
income when fixing [the] property assignment and ali-
mony orders . . . .’’ Text accompanying footnote 20
of the majority opinion. A close examination of the
record and language in Thompson, however, reveals
that the pension benefits at issue in that case were
vested, unlike in the present case, and, accordingly, the
reasoning in Thompson is inapposite.
In Thompson, one of the issues before the court was
‘‘the extent to which a trial court may take into account
unaccrued pension rights . . . .’’ Thompson v. Thomp-
son, supra, 183 Conn. 97. The plaintiff in Thompson
argued that the trial court improperly had relied on
‘‘evidence of pension benefits [that she] would receive
if she continued to work at her present job until [the]
age [of] sixty-five’’; id., 98; because the pension was
‘‘too speculative in nature to be considered by a court
fashioning alimony and property assignment orders.’’
Id., 100. This court disagreed, reasoning that ‘‘[p]ension
benefits represent a form of deferred compensation for
services rendered. . . . As such, they are conceptually
similar to wages . . . [under §§ 46b-81 and 46b-82]
. . . . Just as current and future wages are properly
taken into account under these statutes, so may unac-
crued pension benefits, a source of future income, be
considered. . . .
‘‘The . . . assertion that pension benefits are as
uncertain and speculative as an expected inheritance
is unsound. It is true that the exact amount of the
benefits to be received often will depend upon whether
the employee survives his retirement age, how long he
lives after retirement and what his compensation level
is during his remaining years of service. But these con-
tingencies are susceptible to reasonably accurate quan-
tification. . . . The present value of a pension benefit
may be arrived at by using generally accepted actuarial
principles . . . .’’ (Citations omitted; footnote omit-
ted.) Id., 100–101.
Since Thompson, this court, as well as the majority
in the present case, has misunderstood the decision as
referring to unvested pension benefits. See Krafick v.
Krafick, supra, 234 Conn. 794–95 n.20; Bender v.
Bender, supra, 258 Conn. 743–44. When the court in
Thompson referred to the pension benefits at issue as
‘‘unaccrued’’ benefits, however; Thompson v. Thomp-
son, supra, 183 Conn. 97, 100, 101; it was not referring
to unvested pension benefits but to pension benefits
that would accrue in the future should the plaintiff
continue to work for her employer until the age of sixty-
five under a pension plan in which she already had a
vested interest. See id., 100 n.3 (distinguishing between
‘‘unaccrued’’ pension benefits that would accrue in
future under vested pension and ‘‘[v]ested’’ pension ben-
efits that already have accrued). This conclusion is sup-
ported by the record in Thompson and the arguments
in the parties’ appellate briefs, all of which expressly
referred to the plaintiff’s admission that her pension
had ‘‘vested’’ and that the question before the court was
whether the increase in her retirement benefits from
her continued employment until the age of sixty-five
should be considered by the court in its property divi-
sion and alimony orders. See id., 99–100. Thompson
thus spoke only of future, unaccrued benefits under a
vested pension plan, and, as a result, its reasoning has
no bearing on whether the defendant in the present
case was legally obligated in May, 2001, to disclose his
unvested pension benefit in his financial affidavits.11
C
The majority further claims that, although this court’s
holding in Bender that an unvested pension benefit is
distributable marital property was not retroactive to
May, 2001, the trial court in the present case ‘‘should
have acknowledged that, in early to mid-2001, around
the time the parties were engaged in settlement negotia-
tions, the proper treatment of unvested pension benefits
in dissolution actions was an open question in Connecti-
cut’’; (emphasis omitted); and that ‘‘there were signifi-
cant indications that it would be decided as it was’’ in
Bender. I disagree.
There are several problems with this reasoning. First,
the possibility in May, 2001, that this court might soon
determine in Bender that unvested pension benefits
constituted distributable marital property is irrelevant
because the parties were required to act on the basis
of the law that existed on the date of dissolution, which,
as the majority concedes, did not yet recognize that
unvested pension benefits constituted property.
Second, to the extent the majority views ‘‘significant
indications’’ as consisting of judicial decisions that
broadened the interpretation of the relevant statutes
and required the disclosure of other types of benefits,
including vested pension benefits; Krafick v. Krafick,
supra, 234 Conn. 798; personal injury awards; Lopiano
v. Lopiano, supra, 247 Conn. 371; and unvested stock
options; Bornemann v. Bornemann, supra, 245 Conn.
518; the fact that this court had been asked repeatedly
to decide whether the parties to a dissolution proceed-
ing had a legal obligation to disclose such benefits
attests to the ambiguity of the applicable law at that
time and the necessity for its continued interpretation
to determine the scope of the disclosure requirement.
Moreover, this court had concluded in several previous
cases that the disputed resource or benefit did not con-
stitute distributable marital property. See Simmons v.
Simmons, supra, 244 Conn. 178 (medical degree);
Rubin v. Rubin, supra, 204 Conn. 232 (interest in revo-
cable inter vivos trust); Krause v. Krause, supra, 174
Conn. 364–65 (potential inheritance). Indeed, of the six
cases decided by this court prior to May, 2001, in which
the parties disagreed as to whether a benefit or resource
was distributable marital property, the court deter-
mined in only three cases that the benefit or resource
constituted property. Lopiano v. Lopiano, supra, 247
Conn. 371 (personal injury awards); Bornemann v.
Bornemann, supra, 518 (unvested stock options); Kraf-
ick v. Krafick, supra, 798 (vested pension benefits).
Thus, the ‘‘growing trend’’ to which the majority refers
did not necessarily point to a future decision by this
court that a party’s unvested pension benefit consti-
tuted property. Finally, insofar as the majority views
the decisions of other jurisdictions that required the
disclosure of unvested pension benefits in 2001 as pro-
viding a significant indication regarding this court’s
future decision in Bender, it only highlights the majori-
ty’s recognition that unvested pension benefits were
not considered property subject to disclosure in this
jurisdiction during the parties’ predissolution negoti-
ations.
In sum, neither the defendant nor the trial court could
have anticipated this court’s decision in Bender because
there was no Connecticut case law in May, 2001, sug-
gesting that an unvested pension benefit constituted
distributable marital property. No decision of this court
or the Appellate Court, including Thompson, stated
even in dictum that a trial court should consider an
unvested pension benefit as a property interest in craft-
ing its financial orders. The only references to unvested
pension benefits in cases decided before May, 2001,
appeared in two footnotes in Krafick, one of which
incorrectly construed Thompson; see Krafick v. Kraf-
ick, supra, 234 Conn. 794–95 n.20, 798–99 n.23; a foot-
note in Rosato v. Rosato, 255 Conn. 412, 422 n.16, 766
A.2d 429 (2001); and a passing comment in Smith v.
Smith, 249 Conn. 265, 274, 752 A.2d 1023 (1999), with
Rosato recognizing only months before the separation
agreement in the present case was drafted that the
status of unvested pension benefits remained unre-
solved in Connecticut.12
Insofar as the majority suggests that the defendant
and the trial court should have anticipated the result
in Bender because of the Appellate Court’s earlier deci-
sion in Bender v. Bender, 60 Conn. App. 252, 758 A.2d
890 (2000), aff’d, 258 Conn. 733, 785 A.2d 197 (2001),
the Appellate Court did not address whether unvested
pension benefits constitute property, the issue was not
certified to this court on appeal, and this court, which
ultimately decided to address the issue, had not yet
published its decision in May, 2001. Moreover, Bender
involved a different factual situation than that in the
present case because the vesting requirement in Bender
was twenty-five years of service and the defendant had
been employed for approximately nineteen years at the
time of the parties’ divorce. Id., 253. Finally, this court
never has characterized its decision in Bender as a mere
‘‘incremental [step]’’ in Connecticut’s jurisprudential
development that might have been anticipated. Foot-
note 29 of the majority opinion. Rather, this court stated
in Bender that ‘‘the issue of whether unvested pension
benefits are property subject to equitable distribution
under § 46b-81 [was] one of first impression for this
court . . . .’’ (Emphasis added.) Bender v. Bender,
supra, 258 Conn. 743. Although there is language in
Bender referring to a ‘‘common theme’’ running through
our prior case law; id., 748; the theme to which Bender
referred consisted of the type of analysis employed, not
to a series of similar holdings that would have predicted
the outcome of this court’s decision in Bender.13 Thus,
although the court in prior cases had considered certain
common factors in determining whether the interest in
question constituted marital property, it was not possi-
ble to predict how the court would apply those factors
in a future case to the unresolved question of whether
unvested pension benefits constitute distributable mari-
tal property.
The court in Bender also recognized that, despite the
existence of a common theme, our prior case law could
be interpreted in different ways, depending on the type
of potential property interests at issue. See id., 753. The
court stated: ‘‘Where [the majority] and the dissent [in
Bender] part company is over the appropriate reading
of our prior jurisprudence. We acknowledge . . . that
in some cases we have determined that certain interests
constituted property where there were enforceable con-
tract rights therein, while in others we have determined
that certain interests were too speculative to constitute
property where there were no such rights. We do not
read those cases, however, as the dissent does, to mark
out a hard and fast line requiring such rights as the
sine qua non of ‘property’ under § 46b-81.’’ (Emphasis
added.) Id. The court ultimately concluded: ‘‘We believe
that any uncertainty regarding vesting is more appro-
priately handled in the valuation and distribution
stages, rather than in the classification stage.’’
(Emphasis added.) Id., 749–50. Moreover, this was not a
conclusion that necessarily could have been anticipated
because, although it did not entirely eliminate consider-
ation of whether an interest constitutes distributable
property, it deemphasized the court’s prior focus on
that question and allowed consideration of the problem
of uncertainty in the context of valuation and distri-
bution.14
The court similarly acknowledged in a subsequent
decision that, although its holding in Bender concerning
unvested pension benefits represented a natural pro-
gression and expansion of the law, it also broke new
ground. See Mickey v. Mickey, 292 Conn. 597, 625, 974
A.2d 641 (2009). In Mickey, we explained: ‘‘Our decision
in Bender . . . updated [the] traditional, fairly rigid
dichotomy by establishing a more nuanced approach
to defining property interests under § 46b-81. In Bender,
this court built [on the] foundation of our prior cases
in concluding that the unvested pension of the defen-
dant in that case was property subject to equitable
distribution. . . . Consistent with our time-honored
approach, we reiterated that presently enforceable
rights, based on either property or contract principles,
are sufficient to cause property to be divisible. Where
Bender broke new ground was in its recognition that
such rights are not the sine qua non of property under
§ 46b-81. . . . In building on our prior cases, we
expanded our notion of property under § 46b-81, rec-
ognizing that there is a spectrum of interests that do
not fit comfortably into our traditional scheme and yet
should be available in equity for courts to distribute.’’
(Citations omitted; emphasis altered; internal quotation
marks omitted.) Id. The majority quotes selectively from
this passage to emphasize the portion that refers to the
evolution and general continuity of Connecticut law in
the area of marital property rights rather than the por-
tion referring to the fact that Bender had recognized
a new category of property interests that ‘‘do not fit
comfortably into our traditional scheme . . . .’’ Id.; see
also Czarzasty v. Czarzasty, 101 Conn. App. 583, 594,
922 A.2d 272 (‘‘[T]he court [in Bender] seems to have
recast the analysis used to determine whether an inter-
est or benefit is property under § 46b-81 to a more
probabilistic assessment untethered to the existence of
a presently existing enforceable right. Consequently,
since Bender, whether a party has a presently existing
enforceable right to the present or future receipt of the
asset appears no longer to be determinative. Instead,
the determination of whether a claimed asset is subject
to distribution pursuant to § 46b-81 appears to depend
on the degree of certainty revealed by the evidence that
the litigant will eventually receive the asset. In sum, in
accordance with the dictates of Bender, in confronting
property claims under § 46b-81, trial courts must make
an assessment on a case-by-case basis of the likelihood
of the person’s receiving the asset claimed by his or
her spouse. If the likelihood is not too speculative, then
it is property subject to valuation and distribution.’’
[Emphasis added.]), cert. denied, 284 Conn. 902, 931
A.2d 262 (2007). Thus, when the majority opines that
the court’s decision in Bender was predictable, or was
an incremental step that should have been anticipated
and reflected in the trial court’s decision in the present
case, it goes too far, and its conclusion is inconsistent
with the conclusion in Mickey that Bender ‘‘expanded
our notion of property under § 46b-81’’ in a way that
could not have been foreseen by creating an entirely
new category of inchoate interests available for consid-
eration and possible distribution by Connecticut’s trial
courts. Mickey v. Mickey, supra, 625. More importantly,
the majority simply does not explain why the parties
were required to predict what the future law would be
and how this court would apply it in their particular
case.
D
The majority finally relies on §§ 46b-66, 46b-81, and
46b-82 in concluding that, ‘‘even when an item is deter-
mined to be nondistributable, its existence nevertheless
is a relevant consideration for a court adjudicating a
dissolution action when it assesses the fairness of a
settlement, distributes other property or fashions other
financial orders.’’ I agree with the majority that a party’s
disclosure of the opportunity to acquire future capital
assets and income under § 46b-81, which would have
included the defendant’s unvested pension benefit in
2001, generally is required so that the trial court can
perform its statutory duty under § 46b-66 of determining
whether a separation agreement is ‘‘fair and equitable
under all the circumstances.’’ General Statutes (Rev. to
2001) § 46b-66. There are several difficulties, however,
with applying this principle to the facts of the pres-
ent case.
First, the trial court’s statutory duty under § 46b-66
was not the legal theory on which the plaintiff’s motion
to open was based. The two grounds on which her
motion was based were, first, that the defendant com-
mitted fraud by failing to disclose a benefit that was
distributable marital property, thus causing her to rely
to her detriment on a false representation of his assets
and, second, that the defendant’s alleged nondisclosure
of the benefit was in violation of paragraph 13.11 of the
parties’ separation agreement. As previously discussed,
the reason why the plaintiff relied on these grounds
was because they enabled her to ask for relief in the
form of the full value of the benefit, a lessened burden
of proof, and attorney’s fees and costs without
reopening the entire judgment, which would not have
been possible if she had based her motion on the ground
that the trial court was unable to perform its statutory
duty. The plaintiff thus vehemently objected to the trial
court’s determination in its first memorandum of deci-
sion that the defendant’s unvested pension benefit was
not a marital asset subject to distribution.
As evidence of her frustration, the plaintiff filed the
very next day a motion for reargument, reconsideration
and/or rehearing (motion for reconsideration) of the
trial court’s preliminary decision on the property issue.
In her motion, she argued in relevant part that the trial
court, in concluding that the unvested pension benefit
was not marital property, had ‘‘developed a new rule
that there was an obligation to disclose on financial
affidavits and/or during discovery, even ‘putative assets’
such as the [unvested pension benefit] . . . and that
the defendant’s failure to disclose that ‘putative asset’
. . . prevented the court from performing its judicial
function under § 46b-66 . . . thus exposing the judg-
ment to being reopened if the nondisclosure was inten-
tional and it would have affected the outcome of the
case.’’ (Emphasis added.) The plaintiff added that the
court was in effect stating that the nondisclosure of a
putative asset such as the defendant’s unvested pension
benefit ‘‘constituted a fraud upon the court, and the
opposing party,’’ and that the court’s decision was
improper because it represented ‘‘a departure from
prior judicial precedent of the Connecticut Supreme
Court interpreting § 46b-81 . . . .’’ These arguments
were clearly motivated by the plaintiff’s belief that the
only way she could obtain 100 percent of the defen-
dant’s unvested pension benefit was to claim that the
benefit constituted property and that the defendant’s
alleged nondisclosure constituted both fraud and a vio-
lation of paragraph 13.11 of the parties’ separation
agreement, which, as previously noted, provides that
the full value of a property interest that has been inten-
tionally misrepresented or concealed would be trans-
ferred to the nonconcealing party. In addition, because
the plaintiff strongly disagreed, during the hearing on
the motion for reconsideration, that the trial court
should consider the issue of its statutory duty under
§ 46b-66, the court’s ultimate conclusion that a decision
on the fairness of the separation agreement would not
have been affected by nondisclosure of the defendant’s
unvested pension benefit left her with no basis for an
appeal on statutory grounds. In other words, the trial
court’s conclusion that disclosure of the benefit would
not have affected its statutory duty was consistent with
the plaintiff’s claim in her motion for reconsideration
that this was an inappropriate ground on which to jus-
tify the hearing on that motion. The plaintiff was there-
fore not aggrieved by the trial court’s decision on the
issue of its statutory duty and cannot use it as a basis
for an appeal. See, e.g., Cruz v. Visual Perceptions,
LLC, 311 Conn. 93, 95 n.2, 84 A.3d 828 (2014) (aggrieve-
ment is essential prerequisite to appellate jurisdiction).
In addition to the fact that the trial court raised the
issue of its statutory duty under § 46b-66 sua sponte
and that the plaintiff is not aggrieved by the court’s
decision on that issue, the majority’s conclusion that
the judgment should be opened is undermined by the
court’s factual finding that the defendant disclosed the
benefit to the plaintiff. See part III of this opinion.
Accordingly, in light of the trial court’s finding and the
apparent lack of any contrary authority, the defendant
had no greater obligation than the plaintiff to disclose
the benefit to the court.
I finally note the well established principle that a
reviewing court may reframe a question raised on
appeal to more accurately reflect the issue presented.
See, e.g., State v. Thompson, 307 Conn. 567, 570 n.3, 57
A.3d 323 (2012). In the present case, however, the trial
court and the majority have changed the issue presented
in the plaintiff’s motion to open and have disregarded
the plaintiff’s theory of the case. Furthermore, the fraud
claim cannot remain in the case on the ground that
the defendant’s financial affidavit defrauded the court
because ‘‘the concept of fraud on the court [in the
marital litigation context] is properly limited to cases [in
which] both parties join to conceal material information
from the trial court.’’ (Emphasis added.) Billington v.
Billington, supra, 220 Conn. 222. I therefore disagree
with the majority that the trial court should have
granted the plaintiff’s motion to open the judgment
under the principles set forth in Billington, Thompson,
Bender, or the relevant statutes pertaining to the trial
court’s financial orders.
III
I next address the majority’s conclusions regarding
the fraud issue.15 In addition to the fact that the second
hearing on the motion to open was unnecessary follow-
ing the trial court’s determination in the first hearing
that the defendant’s unvested pension benefit did not
constitute property, a continued hearing was improper
because all of the testimony and evidence offered at
the second hearing pertained to whether the defendant
had disclosed the benefit to the plaintiff, rather than
to whether he had disclosed the benefit to the court so
that it could perform its statutory duties under § 46b-
66. The majority nonetheless fails to acknowledge this
disconnect between the trial court’s conclusion in the
first hearing and the testimony and evidence in the
second hearing, which would have been relevant only
if the court had determined that the benefit constituted
property. The majority instead concludes that the trial
court abused its discretion during the second hearing
because it precluded relevant evidence regarding the
value of the benefit. The majority further concludes
that the trial court, in determining that the defendant
disclosed the benefit to the plaintiff, relied largely on
its assessment of the parties’ credibility, which could
have been affected by evidence of the benefit’s value.
The majority thus speculates that, ‘‘[i]f . . . the trial
court [had] determined, on the basis of a complete
evidentiary record, that the pension had considerable
worth . . . that determination could have severely
undermined the court’s finding that the plaintiff had
full knowledge of the pension, yet simply chose not to
pursue any interest in it or some alternative compensa-
tion for relinquishing any such interest. Similarly, a
finding of substantial value may well have changed the
trial court’s assessment of the defendant’s account of
full and frank disclosure to the plaintiff . . . .’’ (Cita-
tion omitted.) Text accompanying footnote 36 of the
majority opinion. The majority further claims that, if
the proffered testimony of the plaintiff’s expert on the
value of the unvested pension benefit had been admitted
and credited by the court, it might have treated the
benefit as distributable marital property, thus affecting
the financial orders and the outcome of the case. I
disagree.
‘‘Fraud consists in deception practiced in order to
induce another to part with property or surrender some
legal right, and which accomplishes the end designed.
. . . The elements of a fraud action are: (1) a false
representation was made as a statement of fact; (2) the
statement was untrue and known to be so by its maker;
(3) the statement was made with the intent of inducing
reliance thereon; and (4) the other party relied on the
statement to his detriment. . . . A marital judgment
based upon a stipulation may be opened if the stipula-
tion, and thus the judgment, was obtained by fraud.
. . . A court’s determinations as to the elements of
fraud are findings of fact that we will not disturb unless
they are clearly erroneous. . . .
‘‘There are three limitations on a court’s ability to
grant relief from a dissolution judgment secured by
fraud: (1) there must have been no laches or unreason-
able delay by the injured party after the fraud was
discovered; (2) there must be clear proof of the fraud;
and (3) there [must be] a substantial likelihood that
the result of the new trial will be different.’’ (Internal
quotation marks omitted.) Weinstein v. Weinstein,
supra, 275 Conn. 685.
The following additional facts are relevant to a resolu-
tion of this claim. At the conclusion of its memorandum
of decision on the property issue, the trial court ordered
the parties to attend a status conference so that the
remaining issues could be explored and a new date
could be set for a hearing to determine whether the
defendant’s alleged failure to disclose the unvested pen-
sion benefit ‘‘was fraudulent, wilful and without just
cause and, if so, whether or not the outcome of the
original judgment would have been materially changed
had the disclosures been made.’’
In preparation for the hearing, the defendant notified
the court in a disclosure statement dated October 15,
2008, that he would call Mark S. Campbell to testify as
an expert witness regarding the present value of the
unvested pension benefit on the date of dissolution. On
November 21, 2008, the plaintiff notified the court in
two disclosure statements that she also would call
Campbell, in addition to her own expert witness, Wil-
liam Miller, to testify regarding the present value of the
benefit. The plaintiff’s disclosure statement pertaining
to Campbell indicated that she agreed with his conclu-
sion that the defendant had an interest in an unvested
pension benefit for which a present value could be
determined but that she rejected and disputed the dis-
count rate Campbell had applied to calculate this value,
which he had determined was at least $17,000 on the
date of dissolution. More specifically, Campbell’s pre-
sent value calculations assumed a discount rate equal
to the twenty year treasury bond rate as of the valuation
date, which was 6.04 percent per annum, plus a ‘‘[s]pe-
cific qualitative risk’’ discount factor of 15 percent per
annum, for a total discount rate of 21.04 percent. The
15 percent discount rate was based on several factors
Campbell determined could have a potentially negative
effect on the present value calculation, including (1)
the unfunded nature of the pension plan,16 (2) the defen-
dant’s unvested interest in the plan at the time of disso-
lution,17 (3) the contingent nature of the plan, which
depended on the defendant’s company continuing as a
going concern and maintaining its ability to fund the
plan from its current earnings, and (4) the ability of the
company to discontinue or otherwise alter the plan at
any time. In her disclosure statement pertaining to
Miller, the plaintiff indicated he would testify that the
present value of the benefit on the date of the dissolu-
tion was $1,079,451 under the ‘‘proper’’ discount rate,
assuming the defendant retired at the age of fifty-five.
Although Miller was expected to testify that Campbell’s
use of the 15 percent discount rate was ‘‘not appro-
priate,’’ and that he did not consider the risks and uncer-
tainties on which this discount rate was based in his
own present value calculation, Miller acknowledged
many of the same uncertainties identified by Campbell,
as well as several others. For example, Miller noted in
his report, which was attached as an exhibit to the
disclosure statement, that the pension plan was
unfunded and would be directly affected by the ongoing
financial health of the company, the defendant was
not eligible for any benefit payment on the date of
dissolution, the defendant would forfeit the benefit if
he terminated his employment with the company before
the early retirement age of fifty, and the present value
of the benefit could vary significantly depending on the
age at which the defendant retired. Miller nonetheless
indicated that, in calculating the present value of the
benefit, he did not take these uncertainties into account
but ‘‘based [his calculation on] the terms and conditions
of the plan . . . as set forth in the expanded retirement
benefit projection reports available to [the company]
. . . and the defendant’s dates of service, years of ser-
vice as a partner and his earnings.’’ Miller also assumed
that the defendant would retire at the age of fifty-five,
thus allowing him to conclude that the present value
of the benefit was $1,079,451, which was 56 percent
higher than the benefit’s present value of $693,663 if
the defendant retired at the age of sixty, the normal
retirement age for company employees and the age
used in the company’s own formula for calculating the
value of employee benefits under its pension plan.18
On November 25, 2008, the trial court considered
whether to admit the proposed testimony and con-
cluded that any evidence regarding value was ‘‘just not
relevant.’’ The court reiterated, upon further reflection,
that ‘‘the proffer of any evidence with regard to valua-
tion, at this stage, would . . . not be material, [would
not] be relevant . . . .’’ The following day, when the
parties raised the matter again, the trial court repeated
that it did not believe the valuation testimony was rele-
vant or material to the issue of fraud in the second
hearing. See footnote 21 of this opinion (further
explaining procedural history of proceedings on admis-
sion of expert testimony).
After the hearing, the trial court issued its second
memorandum of decision on the plaintiff’s motion to
reopen. The court concluded that the plaintiff had not
clearly proven fraud because either she or her attorney
had been apprised of the unvested pension benefit both
before and during the dissolution proceedings. In refer-
ring to the factual predicate for its conclusion, the trial
court explained as follows: ‘‘During [the second hear-
ing], the court heard from the [defendant] regarding
his knowledge of the salient aspects of his [company],
including income and retirement. He testified that he
and [the plaintiff], a [certified public accountant] and
former [company] employee from 1984 through 1991,
frequently discussed these subjects. In particular, he
told the court that, although the general terms of the
[unvested pension benefit] were known to the [com-
pany] partners, they were not committed to writing
until 2002. In response to partner inquiries, a template
allowing the employee to input data, including salary
and longevity, was made available to the employees on
their work computers on or about April, 2000, which
allowed them to project an estimate of the future bene-
fit. The [defendant] said that he did not access his com-
puter at that time for that purpose.
‘‘Later, during the [dissolution] proceedings, he dis-
cussed this potential benefit with his attorney, and they
made an affirmative decision not to list the [unvested
pension benefit] on the financial affidavit, as it was not
funded, vested, or accrued at that time. Still later, he
testified that the [unvested pension benefit], along with
other topics, including the potential future sale of [the
consulting arm of the company], came up during a set-
tlement conference at the office of the [plaintiff’s] attor-
ney, Anthony Piazza, at which was also present the
[plaintiff’s] expert, Mark Harrison, who had been hired
to value the [defendant’s] benefits. The [defendant] has
consistently maintained this position throughout the
proceedings, and the court concluded that this position
was accepted by the [plaintiff] and those representing
her. The [defendant’s] counsel, Christopher Burdett,
confirmed his client’s account. The [plaintiff’s] attorney
did not deny that the meeting took place but denied
that the subject of the [unvested pension benefit] came
up at that time. . . . Harrison did not deny that he was
present at the meeting; however, [he] told the court
that, at that time, he was aware that [the company] had
[an unvested pension benefit], but he could not say for
sure . . . now eight years later . . . what the source
of his knowledge was, since he had also been hired as
an expert by another [company employee’s] spouse at
the same time. . . . [T]he [plaintiff] testified consis-
tently that she had no knowledge of the [unvested pen-
sion benefit] up to that point. The [defendant] and his
counsel continued to take the position that the
[unvested pension benefit] was not an asset, and, there-
fore, they elected not to . . . note it [in] the [defen-
dant’s] financial affidavit. . . .
‘‘The next disputed incident took place during final
negotiations at the courthouse on May 25, 2001, the day
set for trial. Present were the [plaintiff], Attorney Piazza,
his associate, Laura Simmons, and . . . Harrison. The
[defendant] was there along with Attorney Burdett, as
well as a coworker, [Anthony] Artabane. The parties
and witnesses all agree that the negotiations took place
all day at the courthouse, culminating in an agreement
and a hearing before [the court] late in the afternoon,
at which time the court approved the agreement and
dissolved the marriage. It is also undisputed that some
clauses were reworked and typed at Attorney Piazza’s
office that same day, and that some changes were sim-
ply inserted by hand and initialed. From that point on,
the stories diverge. The [defendant] testified that the
subject of the [unvested pension benefit] came up dur-
ing the day, in the absence of his attorney, during a
discussion between himself, [the plaintiff], and her
counsel, Attorneys Burdett and Simmons being at
[Attorney] Piazza’s office to have some changes to the
agreement typed. Again, the [plaintiff] and her attorney
dispute this claim. However, it is supported by . . .
Artabane, who was present in court that day and was
within earshot of that discussion. [Artabane] testified
that he joined that discussion to corroborate the posi-
tion taken by the [defendant] regarding the [unvested
pension benefit]. One specific change to the agreement,
which the court found significant, was the insertion of
the word ‘vested’ in . . . paragraph 13.11 [of the sepa-
ration agreement], which . . . called for penalties in
the event of a party’s failure to disclose a vested asset.
‘‘On balance, the court believes that the [defendant’s]
version of events is more credible. The court found
both parties to be intelligent and articulate, and the fact
that both are [certified public accountants] and familiar
with numbers and complex financial matters lends fur-
ther credence to the [defendant’s] argument. Further-
more, the court does not believe that the subject of the
[unvested pension benefit] did not come up between
[the defendant] and [the plaintiff] at any time during
their marriage, in particular, within the context of the
salient aspects of the [defendant’s] partnership, includ-
ing retirement benefits, or in the lengthy merger negoti-
ations with [another company], and, in particular,
regarding the preservation of existing and potential
partner benefits, like the [unvested pension benefit].
Certainly, the aspirational expectations of both spouses
were shared from time to time during the marriage, if
only in the form of pillow talk. In point of fact, the
[plaintiff] herself told the court that, during their mar-
riage, she and [the defendant] discussed four broad,
work-related subjects, to wit: (1) office politics; (2)
benefits; (3) finances and compensation; and (4) part-
nership. The court believes that the testimony and evi-
dence supports a finding that the [plaintiff] knew about
the [unvested pension benefit] at the time of the dissolu-
tion of marriage in 2001 and that she now wishes to
change the bargain she reached with the advice of coun-
sel and her expert.’’ (Emphasis omitted; internal quota-
tion marks omitted.)
Thereafter, the trial court determined that the
unvested pension benefit did not constitute property
because of the reasons set forth in its earlier memoran-
dum of decision. The court also explained that, in con-
sidering whether the separation agreement was fair and
equitable within the meaning of § 46b-66, ‘‘a court bases
its consideration of fairness upon the financial affidavits
of the parties; that the better practice would be to call
the court’s attention to an item of potential financial
significance by way of a footnote on said affidavit; that,
under all the facts and circumstances, the [defendant’s]
failure to list [the] same on his financial affidavit was
not fraudulent, and, in any event, would not likely have
changed the outcome of the court’s finding of fairness.’’
The court further concluded ‘‘[t]hat the testimony and
evidence supports a finding that, while the [defendant]
did not disclose the existence of the [unvested pension
benefit] on his financial affidavit, at least as late as the
final negotiations that took place at the courthouse on
May 25, 2001, the [plaintiff] and her counsel knew about
the [unvested pension benefit], that the [defendant] did
disclose [the] same in the context of negotiations lead-
ing up to the execution of a written [separation] agree-
ment, as evidenced in part by the written amendments
to said agreement, and that fact is amply supported by
the testimony of the [defendant] and his witnesses.’’
On the basis of these factual findings, the trial court
concluded that ‘‘[t]he [plaintiff] has failed to meet her
burden in that there was no clear proof of fraud; to the
contrary, the court found sufficient evidence to support
a finding that the existence of the [unvested pension
benefit] was disclosed to the [plaintiff] and her counsel
during the settlement negotiations and prior to the entry
of the decree.’’ The court further concluded that,
although ‘‘[i]n a matrimonial action, financial affidavits
play an important role, and there is a need for full and
fair disclosure . . . [u]nder all the facts and circum-
stances, there was insufficient evidence presented to
the court to demonstrate that, in the event of a new trial,
there was a likelihood of a different result.’’ (Citation
omitted.) I agree with the trial court’s conclusions
because they are based on factual findings, supported
by documentary and testimonial evidence from the
defendant and several other witnesses, that the defen-
dant disclosed the unvested pension benefit to the plain-
tiff during the settlement negotiations.
Nevertheless, instead of addressing the trial court’s
findings and conclusions directly to determine whether
they were clearly erroneous;19 see, e.g., Nyenhuis v.
Metropolitan District Commission, 300 Conn. 708, 729,
22 A.3d 1181 (2011) (trial court’s findings of fact subject
to clearly erroneous standard of review); the majority
attempts to avoid this requirement by taking a more
circuitous path, claiming that the trial court abused
its discretion by improperly precluding the evidence
proffered by the plaintiff through her expert witness
concerning the value of the defendant’s unvested pen-
sion benefit. It is therefore necessary to consider the
law on evidence.
‘‘It is well settled that the trial court’s evidentiary
rulings are entitled to great deference. . . . The trial
court is given broad latitude in ruling on the admissibil-
ity of evidence, and [the reviewing court] will not dis-
turb such a ruling unless it is shown that the ruling
amounted to an abuse of discretion. . . . [Thus, the
court’s] review of such rulings is limited to the questions
of whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did. . . .
‘‘The law defining the relevance of evidence is also
well settled. Relevant evidence is evidence that has a
logical tendency to aid the trier in the determination
of an issue. . . . [E]vidence need not exclude all other
possibilities [to be relevant]; it is sufficient if it tends
to support the conclusion [for which it is offered], even
to a slight degree. . . . [T]he fact that evidence is sus-
ceptible of different explanations or would support vari-
ous inferences does not affect its admissibility, although
it obviously bears upon its weight. So long as the evi-
dence may reasonably be construed in such a manner
that it would be relevant, it is admissible. . . . Evi-
dence is not rendered inadmissible because it is not
conclusive. All that is required is that the evidence tend
to support a relevant fact even to a slight degree, so long
as it is not prejudicial or merely cumulative.’’ (Citations
omitted; internal quotation marks omitted.) Jewett v.
Jewett, 265 Conn. 669, 679–80, 830 A.2d 193 (2003).
The majority claims that the trial court decided the
issue of fraud ‘‘largely on the basis of its assessment
of the parties’ credibility,’’ and that the expert testimony
concerning the value of the unvested pension benefit
was relevant to the trial court’s assessments of the
defendant’s credibility and to show that the outcome
of a new trial probably would have been different if the
testimony had been allowed.20 I disagree.
The majority considers and decides this issue
because it was raised by the plaintiff as a minor argu-
ment in her brief to this court. The record makes clear,
however, that the plaintiff did not offer the expert testi-
mony of Campbell or Miller for the purpose of
impeaching the defendant’s testimony regarding his dis-
closure of the benefit to the plaintiff but, rather, to
provide substantive evidence of the benefit’s value in
support of her motion for reconsideration of the trial
court’s prior ruling that the benefit constituted prop-
erty. The issue of the defendant’s credibility was never
raised in the disclosure statements, which were filed
several days before the trial court’s hearing on the mat-
ter, nor was it raised during the hearing itself. After the
trial court expressly concluded on two successive days
that expert testimony on the value of the pension benefit
was ‘‘not relevant’’ or material to the issue of fraud
because the benefit did not constitute property, neither
party made any further argument as to why the testi-
mony should be heard. If the plaintiff had intended to
offer the testimony for the purpose of impeaching the
defendant’s credibility, she could have made that argu-
ment to the court. Because she failed to do so, the court
was unable to consider it.21 It is well established that
this court will not consider a claim not raised at trial.
See, e.g., River Bend Associates, Inc. v. Conservation &
Inland Wetlands Commission, 269 Conn. 57, 82, 848
A.2d 395 (2004). ‘‘[T]he standard for the preservation
of a claim alleging an improper evidentiary ruling . . .
is well settled. This court is not bound to consider
claims of law not made at the trial. . . . In order to
preserve an evidentiary ruling for review, trial counsel
must object properly. . . . In objecting to evidence,
counsel must properly articulate the basis of the objec-
tion so as to apprise the trial court of the precise nature
of the objection and its real purpose, in order to form
an adequate basis for a reviewable ruling. . . . Once
counsel states the authority and ground of [the] objec-
tion, any appeal will be limited to the ground
asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Inter-
nal quotation marks omitted.) State v. Johnson, 289
Conn. 437, 460–61, 958 A.2d 713 (2008); see also Council
v. Commissioner of Correction, 286 Conn. 477, 498, 944
A.2d 340 (2008) (‘‘[A] party cannot present a case to
the trial court on one theory and then seek appellate
relief on a different one . . . . For this court to . . .
consider [a] claim on the basis of a specific legal ground
not raised during trial would amount to trial by ambus-
cade, unfair both to the [court] and to the opposing
party.’’ [Internal quotation marks omitted.]). ‘‘Thus,
because the sina qua non of preservation is fair notice
to the trial court; see, e.g., State v. Ross, 269 Conn.
213, 335–36, 849 A.2d 648 (2004) (the essence of the
preservation requirement is that fair notice be given
to the trial court of the party’s view of the governing
law . . .); the 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 on reasonable notice of that very same
claim.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Jorge P., 308 Conn. 740, 753–54, 66
A.3d 869 (2013). Accordingly, the plaintiff improperly
raised this unpreserved claim on appeal, and the major-
ity has improperly decided it.22
Nevertheless, even if the expert testimony was rele-
vant to the issue of the defendant’s credibility, the trial
court’s decision to exclude it was not harmful error.
‘‘The harmless error standard in a civil case is whether
the improper ruling would likely affect the result. . . .
In the absence of a showing that the [excluded] evi-
dence would have affected the final result, its exclusion
is harmless.’’ (Internal quotation marks omitted.) Desro-
siers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007).
There is no support for the majority’s conclusion that
the expert testimony might have affected the outcome
of the hearing because the trial court did not decide
whether the defendant committed fraud ‘‘largely on the
basis of its assessment of the parties’ credibility,’’ and,
more particularly, the defendant’s credibility. The
defendant’s testimony that he had disclosed informa-
tion to the plaintiff regarding the unvested pension ben-
efit was only one of many factors, including the
plaintiff’s testimony, that the trial court considered in
concluding that the plaintiff or her attorney had knowl-
edge of the benefit. Among these other factors were
(1) testimony by the defendant’s attorney that the bene-
fit was mentioned during a predissolution settlement
conference at the office of the plaintiff’s attorney, (2)
testimony by one of the defendant’s coworkers that he
overheard a conversation between the defendant, the
plaintiff, and the plaintiff’s attorney during the final
settlement negotiations at the courthouse on the date of
dissolution, at which time the unvested pension benefit
was mentioned and that he joined in the discussion to
confirm the defendant’s position with respect to the
benefit, (3) insertion of the word ‘‘vested’’ by way of
a handwritten amendment to paragraph 13.11 of the
parties’ separation agreement, which pertained to the
penalties that would be imposed in the event that a party
failed to disclose a property interest, thus indicating an
explicit understanding by both the parties and their
attorneys that unvested pension benefits were not cov-
ered by the provision, (4) the formidable penalties set
forth in paragraph 13.11 of the separation agreement
for a party’s failure to disclose a vested benefit, (5)
the plaintiff’s testimony that she was a certified public
accountant and therefore familiar with numbers and
complex financial matters, and (6) the plaintiff’s testi-
mony that, during their marriage, she discussed, inter
alia, benefits, finances, compensation and partnership
matters with the defendant. Moreover, given that the
defendant would have lost the entire value of the benefit
if he intentionally failed to disclose it to the plaintiff,
he had no incentive to hide it and every reason to
disclose it, a fact that was not likely to have eluded
the trial court. Accordingly, because a finding of fraud
requires ‘‘clear proof’’ of fraud, the defendant’s testi-
mony was not dispositive but only one of many factors
that the court considered in reaching its conclusion
that the plaintiff had failed to meet her burden of prov-
ing that the defendant committed fraud.
For the foregoing reasons, I respectfully dissent from
parts I and II of the majority opinion.
1
The asset was known as the ‘‘PricewaterhouseCoopers Partners Retire-
ment Plan.’’
2
The plaintiff filed her original motion to open on May 11, 2005. She
subsequently filed her request for permission to amend the motion and the
proposed amended motion on September 15, 2005. On November 14, 2008,
she filed a third and final amended motion in which she added allegations
relating to a small, but also allegedly undisclosed, retirement plan that had
not been referenced in her previous motions.
3
The term ‘‘resource’’ is used throughout this opinion to describe all
financial interests potentially subject to equitable distribution because that
is the term this court used in Krafick v. Krafick, 234 Conn. 783, 792, 663
A.2d 365 (1995), in discussing whether a vested benefit should be deemed
property subject to distribution under § 46b-81. A resource may or may not
be an asset or property, but only an asset or property is subject to equitable
distribution under § 46b-81.
4
In her final amended motion to open, the plaintiff modified the language
she used in her prior amended motion from claiming a right to ‘‘100 percent
of the asset’’ to claiming a right to ‘‘one half or 100 percent of the concealed
asset’’ because another provision in paragraph 13.11 of the parties’ separation
agreement provided for an equal division of the concealed asset if the
nondisclosure was not fraudulent.
5
The trial court acknowledged nine months later during a subsequent
hearing on the plaintiff’s amended motion to open that it was aware of, and
had followed, the ‘‘Krafick model’’ in its analysis of the property issue. The
court specifically noted that, because this court had not yet decided Bender
v. Bender, 258 Conn. 733, 785 A.2d 197 (2001), at the time of dissolution, it
had followed ‘‘the Krafick model . . . the three part model’’ in ruling on
the motion, which required an initial determination of whether the unvested
pension constituted distributable marital property.
6
The issue of the trial court’s ability to perform its statutory duty was
not raised by the plaintiff but, rather, was raised by the court sua sponte.
7
General Statutes (Rev. to 2001) § 46b-66 provides in relevant part: ‘‘In
any case under this chapter where the parties have submitted to the court
an agreement . . . concerning alimony or the disposition of property, the
court shall inquire into the financial resources and actual needs of the
spouses . . . in order to determine whether the agreement of the spouses
is fair and equitable under all the circumstances. . . .’’
Hereinafter, all references to § 46b-66 are to the 2001 revision.
8
General Statutes (Rev. to 2001) § 46b-81 provides in relevant part: ‘‘(a)
At the time of entering a decree annulling or dissolving a marriage or for
legal separation pursuant to a complaint . . . the Superior Court may assign
to either the husband or wife all or any part of the estate of the other. . . .
***
‘‘(c) In fixing the nature and value of the property, if any, to be assigned,
the court, after hearing the witnesses, if any, of each party . . . shall con-
sider 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, vocational skills, employability, estate, liabili-
ties 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 appreci-
ation in value of their respective estates.’’
Hereinafter, all references to § 46b-81 are to the 2001 revision.
9
General Statutes (Rev. to 2001) § 46b-82 provides in relevant part: ‘‘At
the time of entering the decree, the Superior Court may order either of the
parties to pay alimony to the other . . . . In determining whether alimony
shall be awarded, and the duration and amount of the award, the court . . .
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, vocational skills, employability,
estate and needs of each of the parties and the award, if any, which the
court may make pursuant to section 46b-81 . . . .’’
Hereinafter, all references to § 46b-82 are to the 2001 revision.
10
The underlying issue in Billington was ‘‘whether a party to a marital
dissolution judgment must establish, in order [to] subsequently . . . open
the judgment based upon a claim of fraud, that she was diligent during the
original action in attempting to discover the fraud.’’ Billington v. Billington,
supra, 220 Conn. 214. The alleged fraud in Billington was the defendant’s
failure to disclose information that would have resulted in a significantly
higher valuation of a piece of real property that he had listed on his financial
affidavit. Id., 214–15. The quoted passage was thus intended to emphasize
the parties’ obligation to provide accurate information in their financial
affidavits as a context for its subsequent discussion of the diligence issue.
See id., 219–20. At the time Billington was decided, this court had not yet
determined whether unvested property interests were too speculative to be
considered assets subject to distribution.
11
The majority’s conclusion that ‘‘Thompson still stands for the proposi-
tion that benefits that are not distributable property, for whatever reason,
may be taken into account by a court fashioning financial orders in a dissolu-
tion proceeding’’; footnote 20 of the majority opinion; is incorrect, and,
therefore, Thompson provides no support for the majority’s assertion that
there were unmistakable signs before the dissolution judgment in the present
case that this court would determine in Bender that unvested pension bene-
fits constituted property.
12
In the first Krafick footnote, the court evaluated the effect of Thompson
on the issue of whether vested pension benefits constituted distributable
marital property and incorrectly observed that Thompson had ‘‘addressed
nonvested pension benefits and concluded only that such interests were
not too speculative to be taken into account in some fashion by the trial
court in crafting its financial orders in a dissolution action.’’ Krafick v.
Krafick, supra, 234 Conn. 794–95 n.20. In a second footnote, the court further
noted that its conclusion that vested pension benefits constituted property
was consistent with the conclusions of courts in other jurisdictions that
nonvested pensions constitute property. Id., 798–99 n.23. Only two months
before dissolution of the parties’ marriage, however, this court expressly
recognized that the court in Krafick had ‘‘left open the question of whether
nonvested pensions are distributable [marital assets]’’; (emphasis omitted)
Rosato v. Rosato, supra, 255 Conn. 422 n.16; which was consistent with an
even more explicit recognition by this court only one year earlier that
‘‘the marital estate divisible pursuant to § 46b-81 refers to interests already
acquired, not to expected or unvested interests . . . .’’ Smith v. Smith,
supra, 249 Conn. 274. Thus, insofar as the majority suggests that the case
law existing around the time of the parties’ divorce was ‘‘trending toward
a broader conception of what constituted distributable [marital] property’’;
footnote 24 of the majority opinion; see Lopiano v. Lopiano, supra, 247
Conn. 371; Bornemann v. Bornemann, supra, 245 Conn. 518; Krafick v.
Krafick, supra, 798; this court’s dicta in Rosato and Smith, which were
published only months before the dissolution judgment in the present case,
indicated the court’s intent to place limits on the concept of distributable
marital property and its recognition that the question of whether unvested
pension benefits constituted property had not been decided.
13
After discussing several recent decisions of this court, the court in
Bender stated: ‘‘These cases reflect a common theme, namely, that in
determining whether a certain interest is property subject to equitable distri-
bution under § 46b-81, we look to whether a party’s expectation of a benefit
attached to that interest was too speculative to constitute divisible marital
property.’’ Bender v. Bender, supra, 258 Conn. 748.
14
I agree with the majority that the trial court in the present case improp-
erly relied in part on my dissent in Bender; see Bender v. Bender, supra,
258 Conn. 764 (Zarella, J., dissenting); as a basis for its decision. The majority
correctly observes that my dissent was ‘‘not an authoritative ruling to be
applied by a lower court.’’ Footnote 29 of the majority opinion. Consequently,
to the extent that the trial court relied on my dissent in Bender, I reject
that portion of its analysis.
15
I readily agree that disclosure of an unvested pension benefit on a
financial affidavit is required after Bender because we determined in that
case that unvested pension benefits constitute property subject to equita-
ble distribution.
16
Thus, the payment of pension benefits was subject to the general reve-
nues of the defendant’s company.
17
As of the date of dissolution, the defendant was not eligible for the
pension benefit because he was only forty-five years old, and an early
retirement benefit was not available until a partner was at least fifty years
old. If the defendant had terminated his employment prior to the early
retirement age of fifty, he would have forfeited the benefit.
18
To the extent the majority refers to a present value of $3,839,117 in its
statement of facts and elsewhere in its opinion; see, e.g., footnote 32 of the
majority opinion; it is not relevant to the current analysis, and neither the
plaintiff nor the defendant suggests that this was the present value of the
pension. The $3.8 million valuation was contained in the company’s standard
projection report, was derived from certain default assumptions that were
not necessarily appropriate in the defendant’s case, and, as the majority
acknowledges, ‘‘[t]he projection report did not take into account the contin-
gencies to which the defendant’s ultimate receipt of the pension was subject
. . . nor did it specify which portion of the present value was attributable
to services that were yet to be rendered, postdissolution.’’ Id.
19
The majority states that it does not consider whether the trial court’s
factual finding that the pension was disclosed was clearly erroneous because
‘‘the plaintiff has not made that argument . . . .’’ Footnote 38 of the majority
opinion. The majority, however, fails to understand the rules of practice
that legitimize such claims. Practice Book § 67-4 (d) provides that each
argument in the appellant’s brief ‘‘shall include a separate, brief statement
of the standard of review the appellant believes should be applied.’’ Practice
Book § 67-5 (d) similarly provides that each argument in the appellee’s brief
‘‘shall include a separate, brief statement of the standard of review the
appellee believes should be applied.’’ Thus, by requiring the parties to articu-
late the applicable standard of review, our rules of practice open the door
for disagreement and mandate a decision by the reviewing court explaining
its reasons for selecting the standard of review that it ultimately applies to
resolve the issue. Moreover, this has been the practice of Connecticut’s
reviewing courts for a very long time. See, e.g., State v. Coccomo, 302 Conn.
664, 671 and n.2, 31 A.3d 1012 (2011) (rejecting defendant’s argument that
standard of review should be de novo); Perez v. Minore, 147 Conn. App. 704,
709, 84 A.3d 460 (2014) (acknowledging plaintiffs’ argument that standard of
review should be plenary but agreeing with defendant that proper standard
of review was abuse of discretion); Brye v. State, 147 Conn. App. 173, 177,
81 A.3d 1198 (2013) (acknowledging state’s argument that standard of review
should be abuse of discretion but agreeing with plaintiff that proper standard
of review was plenary). Accordingly, given that the defendant in the present
case devoted four pages of his appellate brief to disputing the plaintiff’s
assertion that all of her claims of error were subject to plenary review and
contending that this court should review the trial court’s factual findings
to determine whether they were clearly erroneous, the majority must address
the defendant’s argument and explain why it is unpersuasive.
20
The majority specifically claims that, ‘‘[i]f . . . the trial court [had]
determined, on the basis of a complete evidentiary record, that the pension
had considerable worth . . . that determination could have severely under-
mined the court’s finding that the plaintiff had full knowledge of the pension,
yet simply chose not to pursue any interest in it or some alternative compen-
sation for relinquishing any such interest. Similarly, a finding of substantial
value may well have changed the trial court’s assessment of the defendant’s
account of full and frank disclosure to the plaintiff, namely, disclosure not
only of the pension’s existence, but of all its salient features, including its
value.’’ (Citation omitted; emphasis in original.) Text accompanying footnote
36 of the majority opinion.
21
The majority defends its conclusion that the expert testimony should
have been admitted on the ground that it was relevant to the trial court’s
determination of the defendant’s credibility, even though neither party raised
that claim, because ‘‘[t]he trial court . . . did not even wait for the plaintiff
to offer the evidence, or for the defendant to object to it, before ruling, sua
sponte, that no evidence of value would be admitted, although both parties
had prepared such evidence and intended to present it. In the highly unusual
circumstances of this case, [in which] the trial court imposed its own theoret-
ical framework on the litigation, unexpectedly altered that framework mid-
stream and, then, proactively ruled on evidentiary objections that had not
been made, we decline to penalize the plaintiff for not making a textbook
objection to the trial court’s sua sponte ruling. Because . . . valuation evi-
dence clearly was relevant to both the elements of fraud and the factors
governing a motion to open on the basis of fraud, the trial court’s ruling
likely invoked confusion.’’ (Emphasis in original.) Footnote 35 of the majority
opinion. In other words, the majority concludes that it may decide whether
the expert testimony was relevant on a ground that the parties never raised
because the trial court allegedly prevented them from fully explaining their
arguments or objections prior to its sua sponte ruling to exclude the testi-
mony. The majority thus suggests that the plaintiff would have argued that
the testimony might have affected the trial court’s credibility determination
if she had been given the opportunity to present it. I strongly disagree with
this conclusion because it is based on mere speculation and a complete
misunderstanding of the record.
The trial court’s sua sponte ruling was not made before the parties
explained why they wanted to offer the expert testimony, the ruling did not
proactively cut off potential evidentiary objections by either party, and it
did not invoke confusion. Rather, the ruling came near the end of a series
of filings and discussions over the course of several weeks, during which
both parties had ample time to explain their views to the court regarding
why they believed the expert testimony was necessary. Accordingly, the
court’s sua sponte ruling, and its three other rulings relating to the proffered
testimony, were well understood and accepted by the parties.
The subject of expert testimony initially arose following the trial court’s
issuance of its memorandum of decision on June 10, 2008, in which it
concluded that the defendant’s unvested pension benefit did not constitute
property subject to distribution. At a July 3, 2008 hearing intended to clarify
the issues to be considered during the phase two hearing, on the issue of
fraud, the court stated that it did not know if expert witnesses would be
required but that, if the parties believed they were, the court would need
to hear why.
The subject next was raised on October 15, 2008, when the defendant
filed a notice disclosing his intention to call Campbell as an expert witness.
The defendant provided the plaintiff with a copy of Campbell’s report, which
contained information regarding the professional accounting standards in
effect at that time and an estimate of the present value of the defendant’s
unvested pension benefit as of the date of dissolution. On October 17, 2008,
the plaintiff filed a motion to preclude Campbell’s testimony on the ground
that she was prejudiced because the disclosure was late, and, therefore,
she would not have sufficient time to depose Campbell or retain her own
expert to evaluate Campbell’s report before the start of the phase two
hearing. She also argued that the defendant appeared to be trying to relitigate
the effect of the professional accounting standards on his obligation to
disclose the pension benefit to the plaintiff, an issue the court already had
decided during the phase one hearing, and that the defendant was attempting
to offer evidence on another subject the court also previously had decided,
namely, his legal obligation to disclose the benefit in his financial affidavits.
At a hearing on October 29, 2008, the trial court denied the motion. After
counsel explained the plaintiff’s reasons for seeking to preclude Campbell’s
testimony, the court determined that the testimony would be germane to
the financial orders and that the defendant should be allowed to present
it. The court also determined that Campbell should be allowed to testify
regarding the applicability of the professional accounting standards to the
defendant’s personal life, thus potentially shedding light on his state of mind
and his reasons for preparing the financial affidavits as he did.
On November 21, 2008, the plaintiff filed two notices with the court
disclosing her intention to call Campbell and Miller as expert witnesses in
her case. On November 24, 2008, she also filed a motion for reconsideration
of the trial court’s phase one ruling that the defendant’s unvested pension
benefit constituted property. The plaintiff argued that the fact that the
defendant, through Campbell, had ascribed a present value to his accrued
benefit at the time of dissolution was a significant new consideration that
the court should weigh along with a reexamination of its decision that the
benefit constituted property. The plaintiff’s counsel reiterated in a hearing
on the motion for reconsideration that, if the court had known that the
benefit had value, it might have decided the property issue differently. The
defendant’s counsel objected, arguing that it was too late to reconsider the
court’s phase one decision. The defendant’s counsel also noted that the
court had been apprised, before its phase one ruling, of the fact that the
pension benefit may have had value when the plaintiff’s expert, Miller, had
been allowed to testify that the benefit had an undiscounted present value
of $ 3.8 million and a discounted present value of $400,000. The defendant’s
counsel further challenged the plaintiff’s theory that ascribing a value to the
benefit meant that the benefit constituted property subject to distribution.
The hearing on the motion for reconsideration continued the following
day, at which time the defendant’s counsel again argued that the plaintiff’s
request for reconsideration of the trial court’s phase one ruling was improper
and that, contrary to the plaintiff’s claim, the fact that the benefit had value
did not mean that it constituted property. The defendant’s counsel thus
contended that, to reconsider and open the judgment under the second
prong of Krafick, which required the court to consider the value of the
benefit following a first prong determination that the benefit constituted
property, would not comply with the Krafick model. The plaintiff’s counsel
responded that there would have been no reason for the defendant to
offer evidence through Campbell of the benefit’s present value if it did not
constitute property.
The trial court then reflected that, from its perspective, the defendant’s
counsel had been arguing that Campbell’s testimony went to the defendant’s
mental state, apparently meaning Campbell’s expected testimony regarding
the applicability of the professional accounting standards to the defendant’s
personal life. Thus, to the extent the testimony was about the benefit’s
present value, such testimony was irrelevant. The trial court explained that,
after the decision in Bender, this court seemed to have no problem skipping
step one and going directly to step two of the Krafick analysis, on valuation,
thus ‘‘boot-strapping’’ the concept of property onto the concept of valuation
by concluding that ‘‘if there’s value, then it must be property.’’ The court
reminded the parties, however, that it was required to apply pre-Bender
law, and that, to be consistent with the line of pre-Bender authority, the
valuation of a benefit was not relevant to a determination of whether it
constituted property. The plaintiff’s counsel responded that he still had
to proffer the testimony of Miller, his expert witness, for the purpose of
establishing a proper record, and the trial court stated that it understood
the need to do so. After additional pondering regarding the effect of valuation
on the concept of property, the court stated: ‘‘So, from your standpoint,
[defense counsel], I would sua sponte rule that the proffer of any evidence
with regard to valuation, at this stage, would . . . not be material, [would
not] be relevant . . . .’’ The court added a few minutes later that it was
denying the plaintiff’s motion for reconsideration because it did not believe
that valuation played a role with respect to the unvested pension benefit.
The plaintiff’s attorney made no further comments regarding that ruling.
The next day’s hearing began with a statement by the plaintiff’s attorney,
who acknowledged the trial court’s ruling the previous day but sought to
make an offer of proof as to the testimony of Campbell and Miller to ‘‘protect
the record . . . .’’ He stated that the two expert witnesses, who were present
in the courtroom that day, were prepared to testify in accordance with the
disclosure statements he previously had filed with the court. The defendant’s
counsel moved to preclude the testimony based on the offer of proof because
the trial court’s ruling on the motion for reconsideration the preceding day
had made very clear that the court ‘‘would not consider evidence of value
at this stage of the phase two hearing, and, in accordance with [the court’s]
previous ruling, [the defendant’s counsel] would ask for a motion to preclude
both witnesses, and . . . that satisfies [the plaintiff’s counsel’s] need to
protect the record based on his offer.’’ The trial court responded that its
sua sponte ruling was intended to reverse its earlier ruling denying the
plaintiff’s motion to preclude Campbell’s testimony on behalf of the defen-
dant. The court explained: ‘‘I have since had time to reflect upon this and,
in considering the evidence I have to date, and considering the case law as
I understand it, I don’t believe that valuation testimony is relevant or material
to the issue we have in this particular phase. So, for that reason, I am
precluding [Campbell, the defendant’s] witness. I indicated that I took it
upon my shoulders on [that] one. I indicated that was . . . sua sponte
. . . .’’ The defendant’s attorney then renewed his motion to preclude the
testimony of the plaintiff’s expert witness, Miller, based on the trial court’s
decision regarding the testimony of the defendant’s own expert witness,
Campbell. Although the trial court made no further ruling, the plaintiff’s
attorney indicated his acceptance of the court’s decision to preclude the
testimony, apparently by virtue of the court’s ruling on the motion for
reconsideration and its ruling on the defendant’s expert witness, and asked
that the disclosure offer function as the plaintiff’s proffer for purposes of
clarifying the record.
At no time during the six weeks that the parties and the trial court
discussed the issue of expert testimony did either party argue, or even
remotely suggest, that the testimony was proffered for the purpose of
assisting the court in making credibility determinations. Furthermore, none
of the trial court’s rulings precluded the plaintiff’s attorney from making
that argument. Accordingly, the majority’s conclusions with respect to this
matter are unsupported by the record.
22
Even if this claim had been properly preserved for impeachment pur-
poses, Miller’s proffered testimony regarding the present value of the defen-
dant’s unvested pension benefit on the date of dissolution was inadmissible.
Miller failed to consider the risk factors that Campbell had used to justify
a 15 percent discount rate in calculating the present value and that Miller
himself had identified in his report as risks but did not include in his
calculation. For example, Miller noted that the plan was unfunded, the
benefit was unvested on the date of dissolution, the benefit would be affected
by the defendant’s company’s financial health, and the defendant would
forfeit the benefit if he terminated his employment with the company before
the age of fifty. Despite acknowledging these uncertainties, however, Miller
treated the defendant’s unvested pension benefit for all intents and purposes
as vested, accrued, payable from a pension account with sufficient funding,
and without any cap, when in fact the benefit was wholly unfunded, only
partially accrued, to be paid out of future company earnings, and limited
by a cap based on those earnings. Accordingly, because Miller omitted from
his calculation any consideration whatsoever of the risks and uncertainties
that both he and Campbell had identified, his determination regarding the
benefit’s present value was grossly deficient and thus inadmissible, espe-
cially under Bender. See Bender v. Bender, supra, 258 Conn. 749–50 (uncer-
tainties and contingencies to be considered in valuation of property
interests). Indeed, I find it highly ironic that Campbell conducted what
amounted to a Bender valuation of the defendant’s unvested pension plan,
whereas Miller conducted a valuation analysis completely inconsistent with
Bender because his calculation did not take into account the contingencies
that he had identified. I thus disagree with the majority’s claim that the trial
court would have accepted Miller’s calculation, would not have found the
separation agreement to be fair and equitable, and would not have found
the defendant’s testimony to be credible if Miller had been allowed to testify
that the unvested pension benefit had a present value of $1,079,451.
I add that, to the extent the majority claims that my critique of Miller’s
proposed testimony is unwarranted and that I am ‘‘essentially . . . finding
facts’’; footnote 37 of the majority opinion; it is the majority that raises the
issue of the validity and relevance of Miller’s testimony by declaring that,
‘‘[i]f . . . the trial court [had] determined, on the basis of a complete eviden-
tiary record, that the pension had considerable worth . . . that determina-
tion could have severely undermined the court’s finding that the plaintiff
had full knowledge of the pension, yet simply chose not to pursue any
interest in it or some alternative compensation for relinquishing any such
interest. Similarly, a finding of substantial value may well have changed the
trial court’s assessment of the defendant’s account of full and frank disclo-
sure to the plaintiff, namely, disclosure not only of the pension’s existence,
but of all its salient features, including its value.’’ (Citation omitted; emphasis
in original.) Text accompanying footnote 36 of the majority opinion. Not
only does this passage clearly presume the validity of Miller’s calculations,
but it includes a citation to a prior footnote explaining that Miller would
have testified that the present value of the defendant’s unvested pension
benefit as of the date of dissolution was ‘‘in excess of $1 million.’’ Footnote
34 of the majority opinion. It is therefore the majority that makes an issue
of the validity and relevance of Miller’s testimony, to which I merely respond.