Brady-Kinsella v. Kinsella

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
NANCY BRADY-KINSELLA v. STEPHEN KINSELLA
(AC 34391)
DiPentima, C. J., and Prescott and Pellegrino, Js.
Argued October 8—officially released December 23, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Abrams, J.)
Richard W. Callahan, for the appellant (plaintiff).
Helen Apostolidis, with whom was Kayleigh E.
Kinsella, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. In this marital dissolution action,
the plaintiff, Nancy Brady-Kinsella, appeals from the
judgment of the trial court with respect to the court’s
financial orders. On appeal, the plaintiff claims that the
court (1) made clearly erroneous findings of facts as to
the value of certain property of the defendant, Stephen
Kinsella,1 and (2) abused its discretion by crafting ineq-
uitable financial orders. We affirm the judgment of the
trial court.
The record reveals the following relevant facts and
procedural history. The plaintiff commenced the disso-
lution action on April 28, 2010. The trial was held on
November 8, 9, and 10, 2011. As required, both parties
submitted sworn financial affidavits. In her affidavit,
the plaintiff stated that she had deferred compensation
accounts totaling $25,662. In the defendant’s affidavit,
there were two separate entries under the deferred
compensation accounts section. The first entry
reflected an account with The Hartford valued at
$31,000; the second entry read ‘‘NBK Various accounts,’’
with a value of $25,000, for a total of $56,000. The
plaintiff’s affidavit stated that she had one automobile
with $7000 in equity; the defendant’s affidavit listed two
automobiles with a combined equity of $20,000.2 There
were no inquiries or explanations as to these particular
entries in the defendant’s affidavit during the trial.
Upon the conclusion of the trial, the court found
neither party at fault for the breakdown of the mar-
riage.3 It rendered judgment dissolving the parties’ mar-
riage and entered several financial orders. In its
memorandum of decision, the court found that the
defendant owned deferred compensation accounts
totaling $56,000 and two automobiles with a total equity
of $20,000. The court further found that the plaintiff
owned $25,662 in a deferred compensation account and
$7000 equity in one automobile. In its orders regarding
the distribution of marital property, the court ordered
the defendant to transfer $15,169 to the plaintiff to dis-
tribute equally the value of the deferred compensation
accounts and $6500 to equally distribute the value of
the automobiles. The remainder of the marital property
also was distributed by the court at that time.
On February 21, 2012, the defendant filed a postjudg-
ment motion for clarification, pointing out factual mis-
takes in her own affidavit regarding the deferred
compensation accounts and the automobile ownership.
Specifically, the defendant argued that she had inadver-
tently included the plaintiff’s deferred compensation
accounts as well as an automobile once owned by the
plaintiff in her own financial affidavit. In her motion,
the defendant asked the court to correct the record to
‘‘portray the actual circumstances.’’ The court denied
the motion on February 7, 2012. Neither party sought
appellate review of the denial of the motion. On March
1, 2012, the plaintiff appealed the dissolution judgment
to this court.4
I
The plaintiff first claims that she is entitled to a new
hearing because the financial orders rest on erroneous
entries in the defendant’s financial affidavit. Specifi-
cally, the plaintiff claims that the court’s findings that
the defendant had two automobiles valued at $20,000
and two deferred compensation accounts valued at
$56,000 were clearly erroneous. In response, the defen-
dant posits that the plaintiff is not aggrieved by the trial
court’s orders. We briefly address this claim of lack of
aggrievement before considering the plaintiff’s claims.
See Albuquerque v. State Employees Retirement Com-
mission, 124 Conn. App. 866, 873, 10 A.3d 38(‘‘[a]ggrievement is essentially a question of standing;
without it, a court must dismiss an action for want of
jurisdiction [internal quotation marks omitted]’’), cert.
denied, 299 Conn. 924, 11 A.3d 150 (2011).
The fundamental test for establishing classical
aggrievement is well settled: ‘‘[F]irst, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in the subject matter of the
decision, as distinguished from a general interest, such
as is the concern of all members of the community as
a whole. Second, the party claiming aggrievement must
successfully establish that this specific, personal and
legal interest has been specially and injuriously affected
by the decision . . . . Aggrievement is established if
there is a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected. (Citations omitted; internal quota-
tion marks omitted.) Med-Trans of Conn., Inc. v. Dept.
of Public Health & Addiction Services, 242 Conn. 152,
158–59, 699 A.2d 142 (1997).
It is clear that the plaintiff satisfies the first prong of
the test. She has a specific, personal, and legal interest
in equitable distribution of the marital property. The
plaintiff also satisfies the second prong. Throughout
the trial, the plaintiff maintained that she was entitled
to a share of the defendant’s pension. The court, how-
ever, did not allocate any share of the defendant’s pen-
sion to the plaintiff in its financial order, and this appeal
focuses on that order. Financial orders are often
described as ‘‘entirely interwoven’’ and as ‘‘a carefully
crafted mosaic, each element of which may be depen-
dent on the other.’’ (Internal quotation marks omitted.)
Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993);
see also Smith v. Smith, 249 Conn. 265, 277, 752 A.2d
1023 (1999); Ehrenkranz v. Ehrenkranz, 2 Conn. App.
416, 424, 479 A.2d 826 (1984). We therefore conclude
that the plaintiff has standing to bring this appeal.
We now consider the plaintiff’s claim that the court
made clearly erroneous findings of fact by first setting
forth the appropriate standard of review. ‘‘It is within
the province of the trial court to find facts and draw
proper inferences from the evidence presented. . . .
[W]here the factual basis of the court’s decision is chal-
lenged we must determine whether the facts set out
in the memorandum of decision are supported by the
evidence or whether, in light of the evidence and the
pleadings in the whole record, these facts are clearly
erroneous. . . . An appellate court will not disturb a
trial court’s orders in domestic relations cases unless
the court has abused its discretion or it is found that
it could not reasonably conclude as it did, based on the
facts presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action.’’ (Citation omit-
ted; internal quotation marks omitted.) Kovalsick v.
Kovalsick, 125 Conn. App. 265, 270–71, 7 A.3d 924(2010). ‘‘A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with a
definite and firm conviction that a mistake has been
committed.’’ Tracey v. Tracey, 97 Conn. App. 122, 125,
902 A.2d 729 (2006).
Further, ‘‘[w]here . . . some of the facts found [by
the trial court] are clearly erroneous and others are
supported by the evidence, we must examine the clearly
erroneous findings to see whether they were harmless,
not only in isolation, but also taken as a whole. . . .
If, when taken as a whole, they undermine appellate
confidence in the court’s fact finding process, a new
hearing is required.’’ (Internal quotation marks omit-
ted.) In re Selena 0., 104 Conn. App. 635, 645, 934 A.2d
860 (2007); Gosselin v. Gosselin, 110 Conn. App. 142,
146, 955 A.2d 60 (2008); Owens v. New Britain General
Hospital, 32 Conn. App. 56, 78–79, 627 A.2d 1373 (1993),
aff’d, 229 Conn. 592, 643 A.2d 233 (1994); DiNapoli v.
Doudera, 28 Conn. App. 108, 112, 609 A.2d 1061(1992).
We note that the court squarely based its financial
orders on the sworn financial affidavit that had been
submitted by the defendant. See Spilke v. Spilke, 116
Conn. App. 590, 596, 976 A.2d 69 (‘‘[a] court is entitled to
rely upon the truth and accuracy of sworn statements’’),
cert. denied, 294 Conn. 918, 984 A.2d 68 (2009). Thus
the plaintiff’s reliance on Traystman v. Traystman,
141 Conn. App. 789, 794–97, 62 A.3d 1149 (2013) is
misplaced. In Traystman, the court had made a compu-
tational error while estimating the plaintiff’s earning
capacity. Id., 795–96. As such, the mistake was clearly
evident in the record. In this case, however, the court
made no computational errors and distributed the mari-
tal property relying on the evidence before it.5
Moreover, in examining the findings as a whole, we
conclude that the court’s findings of fact, even if errone-
ous, were nevertheless harmless. In the part of the
financial orders pertaining to the distribution of the
deferred compensation accounts and the automobile
equity, the court explicitly framed its orders to equalize
the parties’ respective shares. As a result of the alleged
errors in the defendant’s financial affidavit, it appeared
that the defendant owned $40,000 more in property than
the plaintiff. Therefore, the plaintiff actually benefited
from the alleged mistakes, presumably receiving more
funds than she otherwise would have. As a result, we
are unable to conclude that the plaintiff was harmed
in respect to these two categories. Similarly, we are
unable to conclude that the plaintiff was harmed by the
mistakes when we review the case as a whole, and she
fails to explain how she might have been harmed in
her appellate brief. In sum, the alleged mistakes, even
if erroneous, were harmless, and their existence in this
case does not undermine our confidence in the court’s
fact-finding process so as to require a new hearing. See
In re Selena 0., supra, 104 Conn. App. 645.
II
The plaintiff next claims that the court abused its
discretion by issuing inequitable financial orders. Spe-
cifically, the plaintiff argues that, in light of the court’s
finding that the defendant had a ‘‘significant earning
capacity’’ and the court’s apparent equalizing approach
to the division of some of the parties’ property, the
decision to allow the defendant to retain her entire
pension from the city of Hartford was an abuse of the
court’s discretion.6 We disagree.
The following facts, as found by the court, are rele-
vant to this claim. The parties were married in 1989.
At the time of the trial, they had two children. The
oldest was nineteen years old and the youngest was
fifteen years old. Throughout most of the parties’ mar-
riage, the plaintiff had been employed as a licensed
optician. At the time of the trial, she reported earning
a gross weekly income of $759. The defendant, an attor-
ney who recently had retired from a position as an
assistant corporation counsel for the city of Hartford,
received a gross weekly pension payment of $1197. At
the time of the trial, the defendant was a partner at a
small law firm, but had no income from that position.
Based on this and other evidence presented at trial,
the court found that the defendant had a ‘‘significant
earning capacity.’’7 Despite this finding, however, the
court stated in its memorandum of decision that certain
personal circumstances beyond the defendant’s control
would ‘‘most likely present some initial hurdles’’ to a
full realization of the defendant’s earning capacity. In
addition to the deferred compensation accounts and
the automobiles discussed previously in this opinion,
the court found that the parties owned two separate
homes. The plaintiff had $47,666 of equity in the house
she occupied, and the defendant had $252,759 of equity
in the home she occupied. The court also found that the
plaintiff had $32,963 in personal debt, and the defendant
had $89,551 in personal debt.
Having made its findings, the court issued the follow-
ing financial orders. The defendant was ordered to pay
weekly child support in the amount of $172. The defen-
dant was also ordered to maintain medical insurance for
the children and to pay 61 percent of all unreimbursed
medical and dental expenses for the minor child. In
addition to being ordered to compensate the difference
between the deferred retirement accounts and the auto-
mobiles in the amount of $21,669, the court ordered
the defendant to transfer to the plaintiff $104,172 to
equalize the value of the equity in the parties’ real prop-
erty. The court also ordered the defendant to procure
and maintain a life insurance policy in the amount of
$250,000. In addition, the defendant was ordered to pay
$1 per year alimony to the plaintiff for a period of 11
years.8 Finally, even though the defendant retained full
rights to her pension, the court ordered her to ‘‘immedi-
ately notify [the] plaintiff of any income received in
excess of her pension . . . .’’
Our standard of review of the court’s financial orders
is well settled. ‘‘A fundamental principle in dissolution
actions is that a trial court may exercise broad discre-
tion in awarding alimony and dividing property as long
as it considers all relevant statutory criteria. . . . An
appellate court will not disturb a trial court’s orders in
domestic relations cases unless the court has abused
its discretion or it 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 presumption in favor of the
correctness of its action. . . . This standard of review
reflects the sound policy that the trial court has the
opportunity to view the parties first hand and is there-
fore in the best position to assess all of the circum-
stances surrounding a dissolution action, in which such
personal factors such as the demeanor and the attitude
of the parties are so significant.’’ (Citations omitted;
internal quotation marks omitted.) Quasius v. Quasius,
87 Conn. App. 206, 208, 866 A.2d 606, cert. denied, 274
Conn. 901, 876 A.2d 12 (2005).
‘‘As a general framework, [t]here are three stages of
analysis regarding the equitable distribution of each
resource: first, whether the resource is property within
[General Statutes] § 46b-81 to be equitably distributed
(classification); second, what is the appropriate method
for determining the value of the property (valuation);
and third, what is the most equitable distribution of the
property between the parties (distribution).’’ Bender v.
Bender, 258 Conn. 733, 740, 785 A.2d 197 (2001). In this
case, the parties do not dispute that the defendant’s
pension is a distributable property. It is also clear that
the court chose to evaluate the defendant’s pension
using the ‘‘present division’’ method when it found that
the pension weekly payment equaled $1197. The only
dispute here is over the court’s decision to distribute
the entire pension to the defendant. The plaintiff claims
that it was an abuse of discretion not to award her a
share of the ‘‘most valuable asset of the 22 year mar-
riage.’’ The defendant, in turn, argues that the evidence
before the court showed that the pension remained the
defendant’s only source of income, and, therefore, it
was not an abuse of discretion for the court to permit
the defendant to retain the pension. We agree with
the defendant.
As our prior cases have held, ‘‘[p]ension benefits are
widely recognized as among the most valuable assets
that parties have when a marriage ends. . . . Neverthe-
less, there is no set formula that a court must follow
when dividing the parties’ assets, including pension ben-
efits.’’ (Citations omitted; internal quotation marks
omitted.) Martin v. Martin, 101 Conn. App. 106, 111,
920 A.2d 340 (2007). It is also clear that a court can
exercise a wide range of discretion in dissolution mat-
ters. The distribution of assets in dissolution matters
is governed by General Statutes § 46b-81, which pro-
vides in relevant part that a trial court ‘‘may assign to
either spouse all or any part of the estate of the other
spouse. In fixing the nature and value of the property,
if any, to be assigned, the court, after considering all
the evidence presented by each party shall consider the
length of the marriage, the causes for the . . . dissolu-
tion of the marriage . . . the age, health, station, occu-
pation, amount and sources of income, earning
capacity, vocational skills, education, employability,
estate, liabilities and needs of each of the parties and
the opportunity of each for future acquisition of capital
assets and income.’’ (Emphasis added.)
The court awarded the defendant her pension pay-
ments, but it then ordered the defendant to transfer
$125,841 to the plaintiff to equalize the distribution of
the real property, deferred compensation accounts, and
automobiles. In addition, the court ordered the defen-
dant to pay a weekly sum of $172 in child support,
maintain life insurance, and pay 61 percent of the minor
child’s unreimbursed medical expenses, as well as the
extracurricular expenses. The court reasonably could
have concluded that all of the defendant’s financial
obligations, including her outstanding personal debt,
would have to be satisfied by her only source of income
at that time-—her pension. Moreover, the court clearly
expressed its concern about the defendant’s ability to
realize her full earning capacity due to ‘‘the defendant’s
recent decision to live as a woman.’’ Importantly, how-
ever, the court’s decision allows for a modification of
the alimony should the defendant’s income increase
in the future. Under these circumstances, the court’s
financial orders did not constitute an abuse of dis-
cretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant is now known as Kayleigh E. Kinsella. Hereafter, refer-
ences in this opinion to the defendant are to Kayleigh.
2
The defendant’s affidavit listed a 2001 Toyota Tacoma and a 2004 Toyota
Highlander, and the plaintiff’s affidavit listed a 2011 Toyota Yaris.
3
The court found that the parties’ marriage ‘‘was effectively destroyed
by defendant’s 2010 announcement that she intended to live as a woman.’’
The court declined to assign fault to the defendant, however, stating that
the ‘‘concept of fault has some level of voluntariness to it, and the court
refuses to believe that defendant would have chosen the path she did unless
absolutely compelled to do so.’’
4
During the pendency of the appeal, after the trial court had denied a
separate motion for rectification filed by the plaintiff, this court granted in
part the plaintiff’s motion for review and ordered the trial court to hold a
hearing on the motion for rectification. See Practice Book §§ 66-5 and 66-
7. As a result, the record was rectified to include the defendant’s amended
proposed orders.
5
We are also not persuaded by the plaintiff’s argument that the court was
made aware of the mistakes during counsel’s arguments at trial or by the
submission of the defendant’s amended proposed financial order after the
judgment. It is well settled that ‘‘representations of counsel are not, legally
speaking, evidence,’’ and, as such, they cannot properly be considered by
the finder of fact. (Internal quotation marks omitted.) Tevolini v. Tevolini,
66 Conn. App. 16, 26, 783 A.2d 1157 (2001). Similarly, the proposed orders
do not constitute evidence either. See Practice Book § 25-30 (d) (‘‘[t]he
proposed orders shall be neither factual nor argumentative but shall, instead,
only set forth the party’s claims’’).
6
The plaintiff also argues that the court improperly divided the parties’
personal property. In her brief, however, the plaintiff provides no meaningful
analysis of her claim. It is well established that an appellate court is ‘‘not
required to review issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than mere abstract asser-
tion, is required in order to avoid abandoning an issue by failing to brief
the issue properly.’’ Wilson v. Jefferson, 98 Conn. App. 147, 166, 908 A.2d
13 (2006). Accordingly, we decline to review this claim on the basis of an
inadequate brief.
7
In its memorandum of decision, the court did not specify a dollar figure
to the defendant’s earning capacity, and the plaintiff failed to seek an articula-
tion as to the amount.
8
The court’s memorandum of decision specifies that the alimony is modifi-
able as to amount, but not as to term.