Dinunzio v. Dinunzio

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JOSEPH DINUNZIO v. CATHERINE DINUNZIO
(AC 39008)
Sheldon, Bright and Beach, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving her marriage to the plaintiff and making certain financial
orders regarding, inter alia, the plaintiff’s military pension. Held that
the trial court having erred in treating the plaintiff’s military pension
as a source of income rather than as property subject to equitable
distribution, the court’s financial orders could not stand: our Supreme
Court has held previously that vested pension benefits constitute prop-
erty, and are not a source of income, for purposes of equitable distribu-
tion pursuant to the statute (§ 46b-81) that governs the distribution of
assets in a dissolution action, and this court found unavailing the plain-
tiff’s claim that the trial court properly treated his pension as a source
of income because it was in pay status, as pensions in pay status must
be treated as property, valued and either distributed or considered as
an offset or balance to the trial court’s financial orders, and the record
showed that the trial court in the present case improperly classified the
plaintiff’s pension only as a source of income, not as property subject
to equitable distribution.
Argued December 4, 2017—officially released March 6, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Suarez, J.; judg-
ment dissolving the marriage and granting certain other
relief; thereafter, the court denied the defendant’s
motion for reconsideration and reargument, and the
defendant appealed to this court. Reversed in part;
further proceedings.
Brandon B. Fontaine, with whom, on the brief, was
C. Michael Budlong, for the appellant (defendant).
James E. Mortimer, with whom, on the brief, was
Michael D. Day, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, Catherine Dinunzio,
appeals from the judgment of the trial court dissolving
her marriage to the plaintiff, Joseph Dinunzio, on the
ground that the court erred in treating the plaintiff’s
pension, from which he began to receive payments
shortly after he commenced this action, only as a source
of income and not as property subject to equitable distri-
bution. We agree with the defendant and, accordingly,
reverse the judgment of the trial court and remand this
case for a new trial.1
The trial court set forth the following findings of
fact in its January 25, 2016 memorandum of decision
dissolving the parties’ marriage. ‘‘The parties were mar-
ried on May 17, 2003, in Orlando, Florida. . . . There
is one minor child born to the parties since the date of
the marriage . . . . The marriage between the parties
has broken down irretrievably and there is no reason-
able prospect of reconciliation.
‘‘The plaintiff is sixty-one years old and in good
health. He graduated from the [United States] Naval
Academy, holds an aerospace engineering degree and
has training in nuclear power. He served in the [United
States] Navy on and off for twenty-eight years. He
worked in the private sector for Northrop Grumman as
a military consultant before being recalled to active
duty. He retired as a Commander from the United States
Navy [Navy] at age forty-nine. His last military assign-
ment was in the country of Bahrain.
‘‘When the plaintiff retired from the Navy, one month
after the parties married, he started working for himself
as a day trader. In 2003, his day trading account was
valued at $147,375. Since then, he has consistently lost
money trading. The parties’ 2008 income tax return
shows a business loss of $7748; the 2009 income tax
return shows a business loss of $9136; the 2011 income
tax return shows a business loss of $14,274; and the
2013 income tax return shows a business loss of $11,535.
‘‘He currently has $1000 left in his trading account.
The plaintiff has not made any efforts to seek gainful
employment since his retirement. In spite of the plain-
tiff’s significant losses, his plans are to continue day
trading as long as he has any money left in his trad-
ing account.
‘‘In July, 2014, the plaintiff elected to receive his mili-
tary pension without a right of survivorship. At that
time, he received $20,000 in a lump sum. He currently
receives $650 gross weekly from his pension with a net
of $475. The plaintiff lists on his financial affidavit $681
in weekly expenses. That amount includes $70 per week
on a first mortgage, $35 per week on a second mortgage,
and $95 in property taxes. The plaintiff’s assets include
a Navy Federal Credit Union account with a current
ance of $15; a TD Bank account with a current balance
of $19; and savings bonds valued at $1130. He also has
an [individual retirement account (IRA)] with a current
balance of $600.
‘‘The plaintiff’s financial affidavit lists a total of
$57,478 in liabilities. He has a USAA Visa with a balance
of $14,920; a Navy Federal Credit Union debt in the
amount of $25,000; a Lowes credit card with a balance
of $1300; a Home Depot credit card with a balance of
$400; a . . . debt in the amount of $9200 [that was
owed to the mediator that the parties used before filing
this action]; an outstanding dental bill in the amount
of $1158; and $5500 in attorney’s fees.
‘‘The plaintiff is currently residing in a home located
at 300 Main Street [in] Rocky Hill . . . . He purchased
the home before the marriage and the deed is solely in
his name. The home is valued at $180,000. It has a
mortgage in the amount of $35,515 and an equity line
of credit lien in the amount of $72,744. There is $71,741
in equity.
‘‘The plaintiff kept a safe in the marital home con-
taining 1173.5 ounces of silver valued at $15.76 per
ounce, totaling [approximately] $18,494; two ounces of
palladium with an unknown value; fifteen presidential
dollars worth $15; two mint sets consisting of a penny,
nickel and dime from 2007 and 2008; a 1985 commemo-
rative coin set; and 2007 and 2008 dollar coins. The
plaintiff values the coins at $16,800.
‘‘The defendant is forty-two years old and in good
health. She graduated from dental hygienist school and
has a bachelor’s degree in dental hygiene. Since 2003
she has worked as a dental hygienist. She earns $39
per hour and sometimes works on Saturdays. Her net
weekly income is $830. She has $1136 in weekly
expenses. She has [$67,321] in total liabilities including:
a TD Bank and a USAA visa with a combined balance
of $175; $24,946 in attorney’s fees; $950 to the guardian
ad litem; $14,000 to a mediator; $6000 to her sister; and
$21,000 to her father. There is also a joint debt in the
amount of $250 to the minor child’s dentist.
‘‘The defendant’s assets include a TD Bank checking
account with a balance of $974 and a jointly held TD
Bank savings account with a $3 balance. She also has a
401(k) account with John Hancock with an approximate
value of $100,000 and a [United States] savings bond
with a value of $744.
‘‘The parties first met in Bahrain. The plaintiff was
there serving in the Navy and the defendant was a flight
attendant stationed there. They married on May 17,
2003, and when the plaintiff retired from the Navy,
they came to live in Connecticut. The plaintiff started
working for himself as a day trader. The defendant has
always wanted the plaintiff to get a job, but he has
refused to do so. In 2007, the parties decided to have
a child and the child was born on April 4, 2008. After
the birth of the minor child, the defendant still wanted
the plaintiff to seek employment, but he insisted that
he would stay at home day trading and taking care of
the minor child. . . .
‘‘During the course of the marriage, the plaintiff man-
aged the household bills, but it was the defendant’s
income that funded the expenses. The plaintiff was not
working and his day trading business was deteriorating.
In 2014, when this action started, the plaintiff told the
defendant that she could stay in the home as long as
she paid for the household expenses. On February 4,
2015, a court order entered wherein the plaintiff was
responsible to pay for the two mortgages, taxes, home-
owners [insurance], electricity, internet, cable, TV and
home phone. The defendant was to pay $300 per week
to the plaintiff for contributions to the household
expenses as long as she resided in the home. The parties
were to share the minor child’s expenses equally. In
April, 2015, the defendant moved out of the home.
‘‘On September 23, 2015, a parenting plan was submit-
ted to the court and it was accepted . . . . The
agreement provides for joint legal custody, but it does
not designate a primary residence. The agreement pro-
vides that the plaintiff is to parent the child each week
from Sunday at 12 noon until Tuesday at 6:30/7 p.m.,
and Wednesday at 7 p.m. until Friday at 5 p.m. The
defendant is to parent the child each week from Tues-
day at 6:30/7 p.m. until Wednesday at 7 p.m., and from
Friday at 5 p.m. until Sunday at 12 noon.
‘‘The parenting plan does not provide for child sup-
port. According to the child support guidelines submit-
ted by the plaintiff, assuming that he is the custodial
parent, the presumptive child support is $166 per week
from the defendant to the plaintiff. According to the
Connecticut child support guidelines submitted by the
defendant, assuming that she is the custodial parent,
the presumptive child support is $105 per week from
the plaintiff to the defendant.
‘‘Since the date of separation, neither party has paid
child support to the other. Moreover, the plaintiff has
refused to pay for any of the child’s extracurricular
activities, including summer camp, karate and Girl
Scouts (Brownies). The plaintiff does not want to con-
tribute toward the child’s expenses.
‘‘The plaintiff claims that the marriage broke down
in 2010 when the defendant was briefly hospitalized for
depression. He also claims that the marriage suffered
from lack of communication. The court does not find
the plaintiff credible.
‘‘The defendant claims the marriage broke down after
the birth of their child. At that time, she felt depressed
for the lack of help in the marriage, the loss of money
from day trading, the accumulation of debt, the plain-
tiff’s refusal to seek employment, and the plaintiff’s
heavy drinking.’’ (Footnote omitted.)
On the basis of those factual findings, the court dis-
solved the marriage and adopted the parenting plan
agreed to by the parties. The court did not award child
support to either party, deviating from the child support
guidelines due to the shared physical custody of the
minor child. The court ordered the defendant to pay
alimony to the plaintiff in the amount of $75 per week
for four years, modifiable as to amount only, but termi-
nable on the death of either party or the plaintiff’s
remarriage or cohabitation. The court ordered that the
defendant would be entitled to claim the minor child
as a dependent for tax purposes. Each party would be
responsible for his or her own debts as listed on their
financial affidavits and for their respective attorney’s
fees.
The court awarded the marital home, located on Main
Street in Rocky Hill, to the plaintiff. The court ordered
that the plaintiff keep as his sole property all funds in
his Navy Federal Credit Union, USAA, and TD Bank
accounts and the savings bonds listed in his financial
affidavit, and that the defendant keep as her sole prop-
erty all funds in her TD Bank checking and savings
accounts and the United States savings bonds listed in
her financial affidavit. The court ordered the parties’
jointly held TD Bank savings account to be liquidated
and that all funds in it be shared equally. The court
ordered that the plaintiff keep as his sole property the
coins and the metals he kept in his safe.
The court further ordered that the plaintiff keep as
his sole property the IRA listed on his financial affidavit
and that the defendant transfer to the plaintiff, by way
of a qualified domestic relations order (QDRO), 40 per-
cent of her John Hancock 401(k), valued as of the date
of judgment.
The defendant thereafter filed a motion for reconsid-
eration and articulation, arguing, inter alia, that the
court improperly treated the plaintiff’s pension as an
income stream rather than as property. The court
denied the defendant’s motion and this appeal followed.
The defendant claims on appeal that the trial court
erred in treating the plaintiff’s military pension as a
source of income rather than as property subject to
equitable distribution. In response, the plaintiff argues
that the court properly treated his pension as a source
of income because it was in pay status.2 We agree with
the defendant.
‘‘The purpose of a dissolution action is to sever the
marital relationship, to fix the rights of the parties with
respect to alimony and child support . . . [and] to
divide the marital estate . . . .’’ (Internal quotation
marks omitted.) Kent v. DiPaola, 178 Conn. App. 424,
430, 175 A.3d 601 (2017). ‘‘The distribution of assets in
a dissolution action is governed by [General Statutes]
§ 46b-81, which provides in pertinent part that a trial
court may assign to either the husband or the wife all
or any part of the estate of the other. . . . 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 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, liabil-
ities and needs of each of the parties and the opportu-
nity of each for future acquisition of capital assets and
income. The court shall also consider the contribution
of each of the parties in the acquisition, preservation
or appreciation in value of their respective estates. . . .
This approach to property division is commonly
referred to as an all-property equitable distribution
scheme. . . . It does not limit, either by timing or
method of acquisition or by source of funds, the prop-
erty subject to a trial court’s broad allocative power.
. . .
‘‘There are three stages of analysis regarding the equi-
table distribution of each resource: first, whether the
resource is property within § 46b-81 to be equitably
distributed (classification); second, what is the appro-
priate method for determining the value of the property
(valuation); and third, what is the most equitable distri-
bution of the property between the parties (distribu-
tion).’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Krafick v. Krafick, 234 Conn.
783, 792–93, 663 A.2d 365 (1995). The determination of
whether a resource was properly classified by the trial
court as income, instead of as property to be equitably
distributed within the meaning of § 46b-81, is a matter
of statutory interpretation, which is a matter of law,
requiring plenary review. Lopiano v. Lopiano, 247
Conn. 356, 363, 752 A.2d 1000 (1998).
In Krafick v. Krafick, supra, 234 Conn. 783, our
Supreme Court held that vested pension benefits consti-
tute property for purposes of equitable distribution pur-
suant to § 46b-81. Id., 793. The court reasoned that the
language of § 46b-81 must be interpreted broadly to
include such benefits because they ‘‘represent a form of
deferred compensation for services rendered’’; (internal
quotation marks omitted) id., 794; and ‘‘are widely rec-
ognized as among the most valuable assets that parties
have when a marriage ends.’’ Id., 796. The court in
Krafick expressly rejected the proposition that pension
benefits may be considered either as property or as a
source of income for alimony. Id., 798 n.22. The court
explained: ‘‘Section 46b-81 requires a trial court to make
an equitable distribution of the parties’ property; to go
about doing so sensibly, a court must determine at the
outset which of the parties’ resources are subject to
division and assignment under that provision. Although
[General Statutes] § 46b-82 authorizes the trial court to
award alimony in addition to or in lieu of [a distribution
of property] pursuant to section 46b-81 . . . the trial
court may decide to exchange alimony for property only
after determining the value of the property in the estate.
‘‘This classification is significant for two reasons.
First, property, even if not so characterized by the trial
court, will ultimately be awarded to one of the parties;
the statutory duty to distribute property equitably con-
templates that the trial court effect such awards con-
sciously rather than by default. Second, although it may
be permissible in the distribution phase to exchange
some form of alimony for a property award when equita-
ble to do so . . . it must be remembered that these
awards are of different quality and consequence for the
recipient spouse. An award of property is final; the
party who receives property pursuant to § 46b-81 owns
it in his or her own right and controls it. Periodic ali-
mony, on the other hand, is conditional, subject to modi-
fication or elimination. See General Statutes § 46b-86.’’
(Emphasis in original; internal quotation marks omit-
ted.) Krafick v. Krafick, supra, 234 Conn. 798 n.22.
‘‘In determining whether alimony shall be awarded,
and the duration and amount of the award, the court
. . . shall consider . . . the award, if any, which the
court may make pursuant to section 46b-81 . . . .’’ Gen-
eral Statutes § 46b-82. ‘‘Thus, where it is equitable to
do so, the trial court may offset the allocation to one
spouse of the entire value of the pension with alimony
instead of or in addition to assets.’’3 Krafick v. Krafick,
supra, 234 Conn. 801 n.25.
The court in Krafick rejected the argument that ‘‘a
trial court may assign a pension no value if the pension
is taken into account as a source of alimony.’’ Id., 804.
The court held that the trial court erred by effectively
removing the pension ‘‘from the scales in determining
an equitable division of all of the property before the
[trial] court.’’ Id., 806. The court’s reasoning applies
with equal force regardless of whether the pension is
in pay status at the time of dissolution. Even in pay
status it remains a valuable asset. It is no different than
other property that is generating income, such as an
annuity or a contract that provides for periodic pay-
ments due from the sale of a business.4
This court’s recent decision in Kent v. DiPaola, supra,
178 Conn. App. 424, is also instructive. As in the present
case, the trial court in Kent was faced with the question
of the treatment of pensions in pay status. ‘‘[T]he trial
court excluded the defendant’s pensions from the mari-
tal assets when it awarded one third of the assets to
the plaintiff and two thirds to the defendant.’’ Id., 437.
Consequently, the plaintiff argued that the court failed
to value and distribute the pensions. Id. This court
rejected that argument because the record was clear
that the trial court determined the value of the pensions
and distributed them. Id., 437–38. This court therefore
concluded that, ‘‘unlike the trial court in Krafick, the
court in the present case did not remove the defendant’s
pensions from the scales, but instead balanced them
against the order of no child support, and in consider-
ation of the fact that the majority of the pensions had
been earned prior to the marriage.’’ Id., 438 n.15. Thus,
although this court in Kent did not require that the
pensions in pay status be part of the property award,
this court nonetheless concluded that such pensions
be treated as property, valued and either distributed or
considered as an offset or balance to the trial court’s
financial orders.
Here, the trial court referenced the plaintiff’s military
pension only in setting forth its factual findings as to
the plaintiff’s gross and net weekly income and the fact
that he received $20,000 upon his election to receive
his pension benefits. The court did not mention the
plaintiff’s pension in its property distribution orders,
omitting it completely from the category entitled: ‘‘Pen-
sion, IRA and Retirement Assets.’’ It thus did not assign
the pension a value, or order that it be distributed to
either party. Nowhere in its decision, moreover, did the
court state that it was considering the pension as an
offset or a balance against any of its other financial
orders.5 It is therefore clear that the trial court improp-
erly classified the plaintiff’s pension only as a source
of income, not as property subject to equitable distri-
bution.6
‘‘[T]he issues involving financial orders are entirely
interwoven, [and] [t]he rendering of a judgment in a
complicated dissolution case is a carefully crafted
mosaic, each element of which may be dependent on
the other.’’ (Internal quotation marks omitted.) Grant
v. Grant, 171 Conn. App. 851, 869, 158 A.3d 419 (2017).
Because the trial court’s failure to classify the plaintiff’s
pension as property for equitable distribution is not
severable from its other financial orders, this case must
be remanded for a new trial on all financial orders.
The judgment is reversed as to all of the trial court’s
financial orders and the case is remanded for further
proceedings on all financial issues in accordance with
this opinion.
In this opinion the other judges concurred.
1
The defendant also claims that the trial court’s property distribution and
alimony awards were inequitable. Because we reverse the court’s financial
orders in their entirety and remand the case for a new trial, we need not
address these additional claims.
2
The plaintiff also argues that the defendant waived her claim to any
interest in his pension by not asking for it at trial. The defendant’s inclusion
of the plaintiff’s pension in her proposed orders belies this claim.
3
The court in Krafick also rejected the ‘‘contention that to consider vested
benefits for purposes of equitable distribution and also, as allocated, as a
source of alimony constitutes impermissible ‘double dipping.’ ’’ Krafick v.
Krafick, supra, 234 Conn. 804–805 n.26. Our alimony statute provides that
‘‘[i]n determining whether alimony shall be awarded, and the duration and
amount of the award, the court . . . shall consider . . . the award, if any,
which the court may make pursuant to section 46b-81 . . . .’’ General Stat-
utes § 46b-82. ‘‘Relying on the pension benefits allocated to the employee
spouse under § 46b-81 as a source of alimony would be improper only to
the extent that any portion of the pension assigned to the nonemployee
spouse was counted in determining the employee spouse’s resources for
purposes of alimony.’’ Krafick v. Krafick, supra, 805 n.26.
4
It is worth noting that the plaintiff elected to receive payments from his
pension approximately one month after he commenced this action.
5
The plaintiff argues that we must presume that the trial court properly
classified and distributed his military pension as property because there is
no evidence in the record that it did not. There is nothing in the court’s
memorandum of decision that could be construed as an acknowledgement
that the plaintiff’s pension was property. In fact, the court’s mention of
only the amount of income that the plaintiff is receiving undermines this
argument. Moreover, if we were to presume that the court did, in fact,
classify the plaintiff’s pension as property, and order that he retain it in its
entirety, such an order would further skew an already puzzling property dis-
tribution.
6
The fact that the court assigned a value to the defendant’s pension and
awarded 40 percent of her pension to the plaintiff underscores its different
classification of the parties’ pensions.