D. S. v. D. S.

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D. S. v. D. S.*
(AC 44748)
Prescott, Suarez and Bishop, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving his marriage to the defendant and making certain financial
orders. At the time of dissolution, the defendant was a partner in a
large, international law firm. The plaintiff had been unemployed for
many years despite having multiple postgraduate degrees and having
earned a significant income during his previous employment. As part
of the trial court’s property award, it concluded that the defendant’s
potential stream of income pursuant to the retirement provisions of her
law firm’s partnership agreement was not property subject to equitable
distribution under the applicable statute (§ 46b-81). With respect to
alimony, the trial court issued a two part order. First, the defendant
was required to pay certain monthly, after-tax amounts to the plaintiff,
which obligation would terminate on the earliest to occur of the follow-
ing circumstances: the defendant’s death, the plaintiff’s death, the plain-
tiff’s remarriage, or when the defendant was no longer employed as an
active partner of her law firm. Second, the alimony order provided that,
after the defendant ceased to be employed as an active partner of her
law firm and to the extent that she received any retirement payments
pursuant to the partnership agreement, her obligations under the first
part of the order would terminate and, instead, she would be required
to pay 25 percent of her net, after-tax income to the plaintiff. Such
obligation would terminate on the first to occur of certain circumstances,
namely, the defendant’s death, the plaintiff’s death, or the time at which
the defendant’s receipt of income under the partnership agreement
ceased. On the plaintiff’s appeal to this court, held:
1. The trial court did not err in concluding that the defendant’s prospective
interest in the receipt of retirement benefits pursuant to her law firm’s
partnership agreement did not constitute marital property subject to
equitable distribution pursuant to § 46b-81: on appeal, the plaintiff did
not challenge any of the trial court’s underlying factual findings but
contested only its ultimate legal conclusion that the potential source of
retirement income was too speculative and, therefore, that it represented
a mere expectancy that could not be categorized as property for purposes
of equitable distribution pursuant to § 46b-81, which this court concluded
was not improper, as the trial court relied on what it deemed to be
credible expert testimony indicating that the defendant’s potential future
unvested stream of income was not a property right or an asset because
it had no value as of the date of dissolution, the payments involved
variables, risks and requirements that were not fixed and were impossi-
ble to determine at such time, the future income was not carried as a
liability by the law firm on its books, it was not guaranteed, transferrable,
saleable, or funded, and it could be eliminated at any time.
2. The trial court’s alimony order was not improper: the alimony order did
not represent an improper delegation of judicial function but, rather,
was more akin to an appropriate, self-executing order, as the court
merely set forth the circumstances pursuant to which the order would
be terminated or modified on the basis of the conduct of the parties,
and the authorities relied on by the plaintiff in making his argument to
the contrary were inapposite because, in those cases, the trial court
delegated its judicial function by yielding to a nonjudicial officer the
authority to make decisions that were binding on the parties; moreover,
the plaintiff’s alternative argument, that the trial court’s alimony order
represented an abuse of its discretion because, inter alia, it precluded
any modifications that increased the amount or duration of the pay-
ments, was unavailing because the trial court’s decision reflected that
it devised a thoughtful and just order tailored to the parties’ specific
circumstances and abilities, including that the court found the plaintiff’s
claim that he was too busy to secure employment to be without merit,
that the plaintiff had earned a substantial income during his previous
employment, that the plaintiff was responsible for the breakdown of
the marriage, and that his wasteful pattern of spending placed the family
in financial distress.
Argued October 20, 2022—officially released February 7, 2023
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Diana, J.,
rendered judgment dissolving the marriage and granting
certain other relief; thereafter, the court, Diana, J.,
granted the defendant’s motion for clarification, and
the plaintiff appealed to this court. Affirmed.
Charles D. Ray, with whom were Justyn P. Stokely,
and, on the brief, Jessica D. Solotruk, for the appellant
(plaintiff).
Kenneth J. Bartschi, with whom were Karen L.
Dowd, and, on the brief, Thomas P. Parrino and Randi
R. Nelson, for the appellee (defendant).
Opinion
BISHOP, J. The plaintiff, D. S., appeals from the judg-
ment of the trial court dissolving his marriage to the
defendant, D. S. On appeal, the plaintiff claims that the
court improperly (1) concluded that the defendant’s
prospective interest in the receipt of retirement benefits
pursuant to her law firm’s partnership agreement did
not constitute marital property subject to equitable dis-
tribution pursuant to General Statutes § 46b-81, and (2)
issued an alimony order that, by its terms, terminates
upon the undertaking of certain actions by the defen-
dant on the basis that the order represents an improper
delegation of judicial authority or an abuse of discretion
by the court. We affirm the judgment of the trial court.
The following facts, as found by the trial court, and
procedural history are pertinent to our consideration
of the issues on appeal.1 The parties were married in
1990 in Woodbury, New York. They have two children,
one born in 1999 and the other in 2005. At the time of
the marital dissolution, the plaintiff was fifty-seven
years old and in fair health. He has a bachelor’s degree
from Trinity College, a master’s degree in business
administration (MBA) from the Wharton School, Uni-
versity of Pennsylvania, and a master’s degree in public
administration from the John F. Kennedy School of
Government at Harvard University. Notwithstanding
these academic credentials and a history of substantial
employment, earning, in some years, several hundred
thousand dollars, the plaintiff has not worked for an
employer since 2001 and had no earned income at the
time of the dissolution. In 2002, the plaintiff formed his
own private equity firm. That venture, however, was
unsuccessful and officially dissolved in 2008. The court
found that the reasons given by the plaintiff for his lack
of employment since then were without merit.
At the time of the marital dissolution, the defendant
also was fifty-seven years old. Educated in Canada, she
holds MBA and Juris Doctor degrees from the Univer-
sity of Western Ontario. At the time of the marital disso-
lution, she was a partner in a large international law
firm. Her annual gross income is approximately eight
million dollars, and her annual net income is approxi-
mately 50 percent of her gross income. Were the defen-
dant to retire from her current law firm, the terms of
the firm’s partnership agreement may entitle the defen-
dant to a future stream of retirement income.
On November 6, 2017, the plaintiff filed this dissolu-
tion action against the defendant. On December 14,
2017, the defendant filed an answer and cross complaint
against the plaintiff. After four years of intense litigation
and discovery, the court held a contested dissolution
trial over the course of several days in January, Febru-
ary, and March, 2021.2 At the trial, the parties cumula-
tively introduced hundreds of exhibits and elicited testi-
mony from several fact and expert witnesses.
On April 19, 2021, the court rendered judgment dis-
solving the parties’ marriage by way of a comprehensive
memorandum of decision. The court found that the
plaintiff was solely responsible for the breakdown of the
parties’ marriage due to ‘‘his abusive and intimidating
treatment of the defendant, by his excessive wasteful
pattern of spending placing this family in financial dis-
tress, along with his failure to contribute financially to
the household in-kind and in fact, in addition to his
baseless jealously and suspicious nature of the defen-
dant’s fidelity.’’ The court made financial orders relating
to parenting, child support, activity costs and schooling
for the parties’ children, alimony, health insurance and
related costs, for the disposition of the parties’ assets
and liabilities, and for counsel fees.3 At issue in this
appeal are the court’s property and alimony orders.
As part of its property award, the court concluded
that the defendant’s potential stream of income pursu-
ant to the law firm’s partnership agreement was not
property subject to equitable distribution pursuant to
§ 46b-81. The court reasoned that ‘‘[t]he value of most
of the assets and liabilities in this matter are clear and
not in dispute. One financial matter that is unique in
form and substance required undisputed expert testi-
mony,’’ and that related to the partnership agreement
of the defendant’s law firm, which included provisions
for retirement income. In assessing the retirement pro-
visions, the court found that the defendant’s potential
future receipt of retirement income was a mere expec-
tancy, and the court concluded, therefore, that the
potential stream of income did not meet the statutory
definition of property as stated in § 46b-81.
As for alimony, the court awarded alimony to the
plaintiff in a two part order. First, the court ordered
the defendant to ‘‘pay alimony to the plaintiff in the
monthly net after-tax amount of $35,000 for the first
twelve months and $30,000 a month thereafter,’’ which
‘‘alimony obligation shall automatically terminate upon
the first of the following circumstances: (i) the defen-
dant’s death, (ii) the plaintiff’s death, (iii) remarriage
of the plaintiff, or (iv) when the defendant is no longer
employed as an active partner of [the law firm].’’ Sec-
ond, the court ordered that, ‘‘[a]fter the defendant
ceases to be employed as an active partner of [the law
firm], and to the extent that the defendant receives
any payments pursuant to the [law firm’s partnership
agreement] . . . the defendant shall no longer pay ali-
mony to the plaintiff as set forth [in the first part of
the order], and instead, shall pay alimony to the plaintiff
in the amount of 25 percent . . . of the defendant’s
net after-tax income actually received,’’ and that ‘‘[t]his
alimony obligation shall automatically terminate upon
the first of the following circumstances: (i) when the
defendant’s receipt of income . . . under the [law
firm’s partnership agreement] ceases, (ii) the defen-
dant’s death, or (iii) the plaintiff’s death, not the plain-
tiff’s remarriage.’’ Furthermore, the court ordered that
‘‘[t]he amount of alimony as ordered herein under both
scenarios shall be nonmodifiable upward and nonmodi-
fiable as to increases in duration. The defendant’s
income generated by the retirement assets distributed
to her shall not be includable in the defendant’s income
for purposes of adjudicating motions to modify alimony,
nor shall any income generated by the defendant for
employment subsequent to her departure from [the
law firm].’’
On April 28, 2021, the defendant filed a motion for
clarification, requesting that the court permit her to
deduct from her alimony payments any outstanding
amounts of childcare expenses that the plaintiff fails
to pay to the defendant, which the court granted on
May 3, 2021. On May 10, 2021, the plaintiff filed a motion
to reargue the court’s dissolution judgment challenging,
inter alia, the court’s property and alimony awards,
which the court denied on the same date. This appeal
followed. Additional facts will be set forth as necessary.
I
The plaintiff first claims that the court improperly
concluded that the defendant’s prospective interest in
the receipt of retirement benefits pursuant to her law
firm’s partnership agreement did not constitute marital
property subject to equitable distribution pursuant to
§ 46b-81. Notably, the plaintiff contests only the court’s
ultimate legal conclusion on appeal and does not chal-
lenge any of the court’s underlying factual findings.4 The
plaintiff contends that the court should have concluded
that the defendant’s expectation to receive retirement
benefits pursuant to her law firm’s partnership agree-
ment constituted marital property under § 46b-81
because her right to that future income is ‘‘sufficiently
concrete, reasonable, and justifiable . . . .’’ We dis-
agree.
At the outset, we note that the plaintiff claims that
the provisions in the law firm’s partnership agreement
for retirement pay upon the retirement of partners cre-
ate a property interest subject to equitable distribution
pursuant to § 46b-81. In making this assertion, the plain-
tiff points to the language of Bender v. Bender, 258
Conn. 733, 785 A.2d 197 (2001), in which Justice Borden,
speaking for the majority of a divided court, opined
that the term ‘‘property’’ is not defined by § 46b-81 and,
thus, should be broadly construed to include ‘‘every
species of valuable right and interest, and includes real
and personal property, easements, franchises, and
incorporeal hereditaments . . . .’’ (Internal quotation
marks omitted.) Id., 742–43. The plaintiff further claims
that Bender created a two part framework for assessing
whether a particular interest may be classified as prop-
erty for purposes of distribution, namely, whether (1)
‘‘the holder has an enforceable right akin to a valid
contract claim,’’ or (2) ‘‘the holder’s expectation to
receive [that] property is not too speculative, i.e., the
expectation is ‘sufficiently concrete, reasonable and
justifiable as to constitute a presently existing property
interest for equitable distribution’ [purposes].’’ See also
Bender v. Bender, supra, 748–49. In the case at hand,
although the plaintiff acknowledges that the defen-
dant’s right to receive retirement pay does not meet
the first prong of the test, he claims that her right to
the future receipt of retirement pay satisfies the second
prong of the test because it is not merely speculative.
In further support of his argument, the plaintiff cites
to two cases decided by this court subsequent to
Bender.5 In Czarzasty v. Czarzasty, 101 Conn. App.
583, 584–86, 922 A.2d 272, cert. denied, 284 Conn. 902,
931 A.2d 262 (2007), this court was required to deter-
mine whether the defendant’s unvested interest in his
employer’s performance based deferred compensation
plan, which provided for an award in the amount of
$100,000 at the conclusion of ten years of employment
as long as a specific production goal was met, consti-
tuted property subject to equitable distribution under
§ 46b-81. Answering that question in the affirmative,
this court noted that the trial court had found that the
defendant had worked for his employer for eight years
and that his level of production was on target to meet
the required goal in order to receive the award of
$100,000. Id., 594–95. This court noted, as well, that the
trial court had found that the contingent nature of the
defendant’s interest was ‘‘readily obtainable by [the
defendant] based upon his employment history, perfor-
mance record and the projections of [his employer],’’
and, therefore, the trial court properly considered the
amount of the prospective award in fashioning its prop-
erty orders. (Internal quotation marks omitted.) Id., 595.
The plaintiff relies, as well, on another post-Bender
opinion of this court. In Ranfone v. Ranfone, 103 Conn.
App. 243, 244, 928 A.2d 575, cert. denied, 284 Conn.
940, 937 A.2d 698 (2007), this court was called on to
determine whether the trial court had properly awarded
the plaintiff 50 percent of the defendant’s pension bene-
fits as of the date the defendant would become eligible
to collect them, which would include contributions
made to the defendant’s pension after the marital disso-
lution. There, the defendant argued that ‘‘assets earned
after the date of the dissolution are not marital prop-
erty’’ and that assets must be valued ‘‘as of the date of
dissolution.’’ Id., 247. Rejecting the defendant’s argu-
ment, this court pointed out that, in Bender, the court
had opined: ‘‘The fact that a portion of the pension
benefits, once vested, will represent the defendant’s
service to the fire department after the dissolution does
not preclude us from classifying the entire unvested
pension as marital property.’’ (Internal quotation marks
omitted.) Id., 252.
Although not disagreeing that the court in Bender
established a two part test, the defendant argues that
her potential receipt of an uncertain amount of retire-
ment pay is a mere expectancy not sufficiently concrete
to remove it from the realm of speculation and, there-
fore, does not constitute an interest subject to distribu-
tion because the ultimate retirement payments she may
receive are subject to many variables and uncertainties.
We next set forth the applicable legal principles and
standard of review applicable to the plaintiff’s first
claim. The question of whether a particular retirement
benefit constitutes distributable property pursuant to
§ 46b-81 turns on the meaning of the word ‘‘property’’
as it is contained in § 46b-81. See Reville v. Reville,
312 Conn. 428, 446, 93 A.3d 1076 (2014). Accordingly,
because our task involves statutory interpretation, our
review is plenary. See id. In conducting this review,
we look not only to the common meaning of the term
‘‘property’’ but also to the prior judicial gloss on the
term as it is used in the statute in question. Bender v.
Bender, supra, 258 Conn. 742–43. In conducting our
review of the court’s determination in this instance, we
examine the undisputed facts as found by the court
to determine whether those facts support the court’s
conclusion that the defendant’s prospects for the future
receipt of retirement income are too speculative to be
deemed property for equitable distribution under the
statute. In sum, our review does not involve fact-finding
by this court; rather, we conduct a legal analysis of
whether the trial court’s ultimate conclusion, based on
the facts found at trial, is legally correct.
In Bender, our Supreme Court somewhat altered the
lens through which this issue must be decided. Before
Bender, our Supreme Court had held that, in order to
be subject to distribution, a party’s expectation of the
future receipt of funds had to have the attributes of
a property right, such that there was an enforceable
contract right therein at the time of the dissolution. See
id., 753. The majority’s analysis in Bender began with
the statute itself, § 46b-81,6 which provides in relevant
part that a court in a marital dissolution decree ‘‘may
assign to either spouse all or any part of the estate of
the other spouse. . . .’’ General Statutes § 46b-81 (a);
see also Bender v. Bender, supra, 258 Conn. 741–42.
The statute further provides that, ‘‘[i]n fixing the nature
and value of the property, if any, to be assigned,’’ the
court should consider a number of factors that need
not be iterated for the purpose of our analysis. General
Statutes § 46b-81 (c). Recognizing that the statute did
not include a definition of property, our Supreme Court
opined that, in the context of marital dissolution and
mindful of the equitable nature of the proceedings, the
General Assembly intended for the term ‘‘property’’ to
have a broad meaning. Bender v. Bender, supra, 742–43.
In Bender, Justice Borden reviewed our Supreme
Court’s then previous treatment of certain potential
benefits to determine whether those benefits qualified
as property in the marital dissolution context. Id.,745–48; see also Lopiano v. Lopiano, 247 Conn. 356,
367, 752 A.2d 1000 (1998) (involving personal injury
award); Bornemann v. Bornemann, 245 Conn. 508, 518,
752 A.2d 978 (1998) (addressing granted but not yet
exercisable stock options); Krafick v. Krafick, 234
Conn. 783, 798, 663 A.2d 365 (1995) (concerning vested
pension benefits). From this review of salient decisional
law, Justice Borden concluded that our Supreme Court
previously had determined that rights to the future
receipt of income over which a person had some pres-
ently existing, enforceable right constituted marital
property under § 46b-81. Bender v. Bender, supra, 258
Conn. 748. But Bender broke new ground in our
Supreme Court’s determination that a person’s expec-
tancy in the future receipt of funds could also be consid-
ered property, even if not yet presently an enforceable
right, so long as the right to the future receipt was not
merely speculative. Id., 749. In short, the court con-
cluded that a present right to the future receipt of funds
must be ‘‘sufficiently concrete, reasonable and justifi-
able as to constitute a presently existing property inter-
est for equitable distribution purposes.’’ Id. Applying
these principles, the majority in Bender concluded that,
because the defendant, a firefighter, had been employed
in that capacity for nineteen years and his right to the
receipt of pension benefits would vest after twenty-five
years of service; id., 736–37; his expectancy was not
too speculative because it was subject to limited vari-
ables such as his survival, continued faithful service,
and the continued existence of the pension plan. Id.,
749–50.
With that legal backdrop in mind, we next turn to
the facts at hand. As noted previously, the defendant
is a partner in a large international law firm. During trial,
the defendant offered the expert testimony of Mark
Harrison, a certified public accountant and attorney
who previously had testified in marital dissolution
actions as a forensic accountant and valuation expert.
Pursuant to his engagement, Harrison examined the
law firm’s partnership agreement that came into evi-
dence. The agreement provides, in relevant part, that
a partner who has reached the age of fifty and com-
pleted at least ten years of service, may retire and
receive a stream of payments, subject to certain limita-
tions and caveats. As an initial matter, Harrison noted,
the provisions for retirement payments set forth in the
partnership agreement are not funded and are not car-
ried on the firm’s books as a liability. Rather, retirement
payments are disbursed from the firm’s future earnings.
Harrison found it significant that the provision for
retirement payments is subject to termination or reduc-
tion at any time by a vote of the firm’s partners. Harrison
pointed out, as well, a provision in the partnership
agreement reciting that the payments to a retiree could
be adjusted by the firm’s compensation committee and
the concurrence of a certain number of partners on
their determination that the payments are no longer fair
to the remaining partners or the firm, or are otherwise
inappropriate or inequitable to the former partner.
Retirement payments also could be adjusted, deferred,
or simply not paid, if the payments to retired partners
exceed a certain percentage of the firm’s income. In that
event, the partnership agreement provides, payments
to retirees may be deferred and not paid for up to five
years and, if the payments cannot be made during the
period of deferral, the obligation of the firm to make
payments could be extinguished forever. Distinguishing
the partnership retirement provisions from a qualified
pension plan, Harrison characterized the defendant’s
potential to receive retirement payments from the firm
as ‘‘the epitome of a mere expectancy.’’
Harrison commented that, although he had reviewed
many law firms’ partnership agreements with retire-
ment provisions, he had never before seen a provision
that reserved to a small group within the firm the abso-
lute right to terminate or adjust a former partner’s retire-
ment pay at their sole discretion and on the basis that
the firm’s retirement payments to former partners
unreasonably diminished the firm’s profits available to
current partners. Harrison also commented, as to the
certainty of future retirement payments by the firm, that
those payments depended on the continuing viability
of the firm which, although international in nature,
could not be viewed as a certainty because, as Harrison
claimed, twenty-two firms of nearly the same size as
the defendant’s employer had either been disbanded
or had declared bankruptcy since the financial crisis
of 2007.
With respect to the valuation of the potential stream
of payments the defendant may receive on her retire-
ment, Harrison testified that it is not subject to a present
valuation because of the variables and uncertainties in
the retirement provisions of the partnership plan. In
sum, Harrison testified that the retirement provisions
could not be given a present value because doing so
would require him to make speculative assumptions.
It is noteworthy that Harrison’s assessment of the
uncertainty of the defendant’s potential retirement pay-
ments was not theoretic. On the basis of firm docu-
ments, he concluded that, over the past two decades,
the firm had changed the formula by which a retiree’s
pay is determined as the firm’s demographics have
changed to reflect the greater number of retirees vis-
à-vis active partners. He noted, in particular, how these
changes reduced the potential payments to the defen-
dant on her retirement and the potential for further
reductions as the number of retirees continues to rise
compared to the number of active partners.
Harrison concluded his testimony by stating that the
defendant’s potential stream of retirement payments
cannot be considered to be an asset because the firm
does not report the potential payments as a liability. In
that regard, Harrison was speaking in accounting terms.
When asked more specifically for his opinion as to
whether the potential stream of payments could be
considered as property under Connecticut’s marital dis-
solution statute, Harrison replied in the negative, stating
that there is not enough certainty in the potential stream
for it to rise to the level of property as defined by our
Supreme Court.
The trial court embraced the views expressed by
Harrison.7 In its memorandum of decision, the court
stated: ‘‘The court relied on the credible expert testi-
mony of . . . Harrison regarding the defendant’s
potential stream of income upon her retirement from
her law firm. This stream of payments involves vari-
ables, risks and requirements that are not fixed and
[are] impossible to determine at this time. This future
income is not carried as a liability by the law firm
on their books, not guaranteed, not transferable, not
saleable, not funded and can be entirely eliminated at
any time. Thus, its value today is found to be a mere
expectancy. The court finds the defendant’s potential
future unvested stream of income is not a property
right, or an asset, it has no worth and no value as of
the date of this decision. It may produce a stream of
income if all the stars line up in the future as it has for
the past retired partners of the law firm.’’
On the basis of the facts adduced at trial regarding
the defendant’s potential receipt of retirement income,
we do not disagree with the court’s conclusion that
this potential source of income is too speculative and,
therefore, represents a mere expectancy that cannot
be categorized as property for purposes of equitable
distribution pursuant to § 46b-81.
II
The plaintiff next challenges the court’s alimony
order, asserting that it represents an improper delega-
tion of a judicial function or an abuse of discretion.
The plaintiff first argues that the court’s alimony order
amounted to an improper delegation of a judicial func-
tion to a nonjudicial actor because the court provided
the defendant with the ability to terminate her alimony
obligation by leaving her employment with her present
law firm. The plaintiff alternatively argues that, even if
the court’s alimony order was lawful, that order repre-
sented an abuse of discretion by the court because ‘‘it
precludes modification of alimony upward and as to
increases in duration, while, at the same time, permits
the defendant to seek modification of the award and
to take unilateral action to terminate her alimony obliga-
tion without seeking court approval by way of modifica-
tion.’’ We are not persuaded that the court’s order was
improper.
We begin by recounting the court’s alimony order,
which has two parts. First, the court ordered the defen-
dant to pay alimony to the plaintiff in the monthly net
amount of $35,000 for the first twelve months after
dissolution and, thereafter, in the amount of $30,000
per month to terminate on the death of the defendant,
the plaintiff’s death or remarriage, or at such time as
the defendant is no longer employed as an active partner
with her present law firm. The court also provided a
‘‘safe harbor’’ of up to an additional $200,000 that the
plaintiff could earn beyond his earning capacity of
$150,000 per annum, as found by the court, before the
amount of alimony could be subject to downward modi-
fication. Second, the court further provided that, post-
termination of the defendant’s employment with her
present law firm and to the extent that she receives
any potential retirement payments pursuant to the law
firm’s partnership agreement, the alimony order would
be modified and, instead, the defendant was ordered
to pay alimony to the plaintiff in an amount equal to
25 percent of her net retirement income actually
received. The court’s memorandum of decision pro-
vided, as well, that the second part of the alimony obli-
gation would terminate once the defendant was no
longer receiving payments from the law firm, upon her
death or the plaintiff’s death but not upon his remar-
riage. Finally, the court ordered, as to both tranches of
alimony, that the amounts ordered would not be subject
to modification as to any increase either in amount or
duration.
A
The plaintiff first argues that the court’s alimony
orders, insofar as they gave to the defendant the ability
to terminate her alimony obligation by moving to
another position and left the power to terminate ali-
mony in her hands, constituted an improper delegation
of a judicial function to a nonjudicial actor.
We first set forth the applicable legal principles and
standard of review applicable to the plaintiff’s argument
that the court improperly delegated its authority.
‘‘[W]hether the court improperly delegated its judicial
authority presents a legal question over which we exer-
cise plenary review. . . . It is well settled . . . that
[n]o court in this state can delegate its judicial authority
to any person serving the court in a nonjudicial function.
The court may seek the advice and heed the recommen-
dation contained in the reports of persons engaged by
the court to assist it, but in no event may such a nonjudi-
cial entity bind the judicial authority to enter any order
or judgment so advised or recommended. . . . A court
improperly delegates its judicial authority to [a nonjudi-
cial entity] when that person is given authority to issue
orders that affect the parties or the children. Such
orders are part of a judicial function that can be done
only by one clothed with judicial authority.’’ (Citation
omitted; internal quotation marks omitted.) Thunelius
v. Posacki, 193 Conn. App. 666, 674, 220 A.3d 194 (2019).
In support of his argument of improper delegation,
the plaintiff cites to the language of General Statutes
§ 46b-82,8 concerning alimony, and also to decisional
law. He claims to find support in this court’s opinions
in Kyle S. v. Jayne K., 182 Conn. App. 353, 371–72, 190
A.3d 68 (2018), Keenan v. Casillo, 149 Conn. App. 642,
660–61, 89 A.3d 912, cert. denied, 312 Conn. 910, 93
A.3d 594 (2014), Nashid v. Andrawis, 83 Conn. App.
115, 120–22, 847 A.2d 1098, cert. denied, 270 Conn. 912,
853 A.2d 528 (2004), Weinstein v. Weinstein, 18 Conn.
App. 622, 628–29, 561 A.2d 443 (1989), and in our
Supreme Court’s decision in Valante v. Valante, 180
Conn. 528, 532–33, 429 A.2d 964 (1980). Each of those
decisions, however, is inapposite.
In Kyle S., the salient issue related to a parent’s con-
tact with a minor child after a restraining order had
been issued. Kyle S. v. Jayne K., supra, 182 Conn. App.
370. In making its orders concerning parenting time and
custodial rights, the trial court stated: ‘‘As far as [the
child] being involved, I’m going to rely on Dr. Corson
[who was the child’s psychologist]. Dr. Corson will dic-
tate the scope of your contact with [the child] in a
therapeutic setting.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Id., 370–71. The court stated fur-
ther: ‘‘I am restricting that contact so that the mental
health professional can be in charge.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Id., 371. In
reversing the trial court’s order, this court opined: ‘‘A
court improperly delegates its judicial authority to [a
nonjudicial entity] when that person is given authority
to issue orders that affect the parties or the children.’’
(Internal quotation marks omitted.) Id.
In Keenan, the trial court had accepted the recom-
mendation of the guardian ad litem to select a coparent-
ing therapist and required the parties to select an indi-
vidual therapist from a list prepared by the guardian
ad litem. Keenan v. Casillo, supra, 149 Conn. App. 660.
There, because the court did not yield to the guardian
ad litem the authority to make any binding orders
regarding parenting, this court determined that there
had been no improper delegation of judicial authority
to a nonjudicial officer. Id., 660–61.
In contrast, in Nashid, this court determined that an
order by the trial court that the parties submit any
custody disputes to binding arbitration was an improper
delegation because the effect of such an order would
be to yield the court’s decisional authority to an arbitra-
tor, a nonjudicial officer. Nashid v. Andrawis, supra,
83 Conn. App. 120, 122.
In Weinstein, as well, this court concluded that the
trial court had exceeded its authority by improperly
delegating its judicial function to counsel for the minor
children when the court’s order included a provision
requiring the parties to share certain child related
expenses but also provided that, if they could not agree
on whether to incur such expenses, they were to submit
their disagreement to counsel for the minor children
for a decision. Weinstein v. Weinstein, supra, 18 Conn.
App. 628–29.
Finally, in Valante, our Supreme Court concluded
that a court’s order that the family relations division of
the Judicial Branch make orders regarding the division
of personal property was improper. Valante v. Valante,
supra, 180 Conn. 532–33.
In response to the plaintiff’s claims, the defendant
argues that the court’s alimony orders do not constitute
an impermissible delegation of a judicial responsibility
and that, to the extent the orders contain self-executing
provisions, they are lawful. In making this assertion,
the defendant cites decisional law supporting the notion
that self-executing orders are lawful. For example, the
defendant points to Nation-Bailey v. Bailey, 316 Conn.
182, 195–96, 200–201, 112 A.3d 144 (2015), in which our
Supreme Court found no fault in an order adopting
the parties’ agreement that alimony would cease upon
cohabitation. See also Krichko v. Krichko, 108 Conn.
App. 644, 650, 948 A.2d 1092, cert. granted, 289 Conn.
913, 957 A.2d 877 (2008) (appeal withdrawn May 19,
2009).
Having reviewed the authorities advanced by the
plaintiff, we find them inapposite because in each of
these cases in which there was a reversal on appeal, the
trial court had actually delegated its judicial function
by yielding to a nonjudicial officer the authority to make
decisions binding on the parties. In the case at hand,
however, the court made no such order. Rather, the
court simply set forth the circumstances in which its
alimony order would be terminated or modified on the
basis of the conduct of the parties. In our view, the
orders we now review are more akin to the self-execut-
ing orders that have been determined to be appropriate
on appellate review. We therefore conclude that the
court did not improperly delegate to a nonjudicial offi-
cer its adjudicative responsibility.
B
Finally, the plaintiff argues that, even if the court’s
alimony order was not unlawful, it represented an abuse
of discretion by the court because that order ‘‘precludes
modification of alimony upward and as to increases in
duration, while, at the same time, permits the defendant
to seek modification of the award and to take unilateral
action to terminate her alimony obligation without seek-
ing court approval by way of modification.’’
We first set forth the applicable legal principles and
standard of review applicable to the plaintiff’s argument
that the court abused its discretion. In Czarzasty v.
Czarzasty, supra, 101 Conn. App. 587, we repeated our
oft stated maxim that ‘‘[a]n appellate court will not
disturb a trial court’s orders in domestic relations cases
unless the court has abused its discretion or it is found
that it could not reasonably conclude as it did, based
on the facts presented. . . . In determining whether a
trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action.’’ (Internal
quotation marks omitted.) ‘‘The generally accepted pur-
pose of . . . alimony is to enable a spouse who is disad-
vantaged through divorce to enjoy a standard of living
commensurate with the standard of living during mar-
riage. . . . In addition to the marital standard of living,
the trial court must also consider the factors in . . .
§ 46b-82 when awarding alimony.’’ (Internal quotation
marks omitted.) Reinke v. Sing, 186 Conn. App. 665,
689, 201 A.3d 404 (2018). Section 46b-82 (a) requires
the court, when determining whether alimony should
be awarded, to ‘‘consider the length of the marriage, the
causes for the annulment, dissolution of the marriage
or legal separation, the age, health, station, occupation,
amount and sources of income, earning capacity, voca-
tional skills, education, employability, estate and needs
of each of the parties and the award, if any, which the
court may make pursuant to section 46b-81, and, in the
case of a parent to whom the custody of minor children
has been awarded, the desirability and feasibility of
such parent’s securing employment.’’ See also Reinke
v. Sing, supra, 689–90. ‘‘In addition to being awarded
to provide an incentive for the spouse receiving support
to use diligence in procuring training or skills necessary
to attain self-sufficiency, time limited alimony is also
appropriately awarded to provide interim support until
a future event occurs that makes such support less
necessary or unnecessary.’’ (Internal quotation marks
omitted.) O’Neill v. O’Neill, 209 Conn. App. 165, 177,
268 A.3d 79 (2021).
In this regard, the court made several pertinent fac-
tual findings that find support in the record. The court
recited the facts of the plaintiff’s past employment, not-
ing that, in 2000, he had earned more than $1 million
dollars and, in 2001, he had earned more than $800,000.
As to the plaintiff’s claims regarding his lack of employ-
ment during the several years leading up to the marital
dissolution, the court found ‘‘the plaintiff’s position that
he was too busy to secure employment to be without
merit.’’ The court further stated: ‘‘The defendant has
solely earned the income for the family while the plain-
tiff was not working and refused to secure employment.
. . . The plaintiff spent their money recklessly as the
defendant tried to institute restraints. Controlling the
plaintiff’s buying sprees and spending habits was a con-
stant struggle for the defendant that she was unable
to master. . . . These parties were not equal financial
partners. She made the money (he made no real finan-
cial contribution after 2002), and he spent it faster than
she could earn it.’’ As an example of the plaintiff’s spend-
thrift ways, the court noted that, at one point, the plain-
tiff had ‘‘leased a Lamborghini, [a] Maserati, [an] Alfa
Romeo, and a Porshe at the same time at an expense
of over $8000 per month, all without the defendant’s
consent or knowledge.’’ On the basis of expert opinion
testimony, the court found that the plaintiff, at the time
of trial, had a present earning capacity of $150,000 per
year after approximately six months of ‘‘gig assignments
and selective placement by a professional placement
service. . . . The plaintiff’s financial rewards there-
after will match the personal effort advanced and that
could be considerable over time.’’ (Citations omitted.)
The court found that the plaintiff was solely responsible
for the breakdown of the parties’ marriage due to ‘‘his
abusive and intimidating treatment of the defendant,
by his excessive wasteful pattern of spending placing
this family in financial distress, along with his failure
to contribute financially to the household in-kind and in
fact, in addition to his baseless jealously and suspicious
nature of the defendant’s fidelity.’’ Finally, the court
expressly stated that its alimony award was ‘‘intended
to provide the plaintiff with financial incentive to initi-
ate a good faith job search and acquire employment
commensurate with his earning capacity so that he may
contribute toward his own expenses.’’
Given this factual foundation, and mindful of the stat-
utory factors and the purposes for alimony, it cannot
be said that the court’s alimony orders represent an
abuse of its discretion. Instead, the memorandum of
decision reflects that the court devised thoughtful and
just alimony orders tailored to the parties’ specific cir-
cumstances and abilities.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
1
The record reveals that, during the course of the multiday, remote hearing
on this action, the trial court, at the urging of both parties, ordered certain
documents to be sealed, and, from time to time, the court closed the hearings
on the basis that revealing certain information would be detrimental to one
or more of the parties. In no instance did the trial court provide public
notice of its intent to seal files or the courtroom as required by Practice
Book § 25-59A (e). Subsequent to oral argument before this court, this court
ordered the parties to file supplemental briefs on the question of whether
this court should be bound by the trial court’s sealing orders. Both parties,
in their supplemental briefs, have urged this court to adhere to the sealing
orders. The defendant argues that the trial occurred during the COVID-19
pandemic and that the trial court was not required to adhere to the dictates
of Practice Book § 25-59A on the basis of the governor’s order suspending
rules of the court and the order of the Rules Committee of the Superior
Court to similar effect, which were in place during the pandemic. The
plaintiff urges this court to adhere to the sealing orders on the basis of
equity and the parties’ reliance on the sealing orders in the manner in which
the trial was conducted. This court, however, has an obligation to publicly
issue its opinion for the public benefit and for the advancement of the law.
Accordingly, in light of our authority pursuant to Practice Book § 77-2 (a)
to alter a trial court’s sealing orders, but in the spirit of the trial court orders
and the parties’ reliance on them, we do not, in this opinion, refer to either
party or their children by name; nor does this opinion identify any of the
parties’ past or present employers.
2
Because the trial took place during the COVID-19 pandemic, all hearings
were conducted remotely.
3
Among its property orders, the court ordered an equitable division of
the defendant’s Keogh plan valued at $1,762,000, her 401k plan valued at
$1,540,700, and her partner defined benefit pension plan with an annual
benefit of approximately $197,000, payable when the defendant reached the
age of sixty-two years.
4
There are parts of the plaintiff’s principal appellate brief in which he
appears to ask this court to reweigh the evidence introduced at trial, thereby
implicitly challenging the court’s factual findings. Nevertheless, the plaintiff
subsequently clarified his claim by expressly stating in his reply brief and
at oral argument before this court that he is not challenging any of the
factual findings supporting the court’s legal conclusion.
5
The plaintiff also substantially relies on decisions from other jurisdictions
as well as decisions of the Superior Court. We are not bound by these
decisions and, regardless, do not find them persuasive. See Mazza v. Mazza,
216 Conn. App. 285, 306 n.13, 285 A.3d 90 (2022).
6
Subsequent to Bender, our legislature amended § 46b-81. See Public Acts
2013, No. 13-213, § 2. That amendment has no bearing on the merits of this
appeal; thus, for convenience, we refer to the current revision of the statute.
7
During the trial, the plaintiff offered the testimony of Henry Guberman,
a certified public accountant who specializes in forensic litigation services
with an emphasis on matrimonial matters. He testified that he had analyzed
the benefits that might be available to the defendant upon retirement but
was unable to provide a present valuation of them without resorting to
speculation as to the amount of the defendant’s retirement pay. On cross-
examination from the defendant’s counsel, Guberman acknowledged that
he could not characterize the defendant’s potential retirement payments as
an asset but, rather, indicated that he characterized them simply as a poten-
tial stream of payments. Ultimately, Guberman testified that he was not
intending to offer an expert opinion as to valuation of the retirement provi-
sions of the partnership agreement with any degree of professional certainty.
On that basis, the court declined to qualify Guberman as an expert for
purposes of offering any opinions because he stated that he had no opinions
to offer.
8
General Statutes § 46b-82 provides in relevant part: ‘‘(a) At the time of
entering the decree, the Superior Court may order either of the parties to
pay alimony to the other, in addition to or in lieu of an award pursuant to
section 46b-81. . . . In determining whether alimony shall be awarded, and
the duration and amount of the award, the court shall consider the evidence
presented by each party and shall consider the length of the marriage, the
causes for the annulment, dissolution of the marriage or legal separation,
the age, health, station, occupation, amount and sources of income, earning
capacity, vocational skills, education, employability, estate and needs of
each of the parties and the award, if any, which the court may make pursuant
to section 46b-81, and, in the case of a parent to whom the custody of minor
children has been awarded, the desirability and feasibility of such parent’s
securing employment.’’