O'Brien v. O'Brien, 36694.

Citation161 Conn.App. 575,128 A.3d 595
Decision Date01 December 2015
Docket NumberNo. 36694.,36694.
CourtAppellate Court of Connecticut
Parties Michael J. O'BRIEN v. Kathleen E. O'BRIEN.

Daniel J. Klau, Hartford, for the appellant (plaintiff).

George J. Markley, Fairfield, with whom was Aidan R. Welsh, for the appellee (defendant).

BEACH, PRESCOTT and BEAR, Js.

PRESCOTT, J.

The plaintiff, Michael J. O'Brien, whose marriage to the defendant, Kathleen E. O'Brien, was dissolved in September, 2009, appeals, challenging the new financial orders rendered by the trial court on remand following his prior appeal from the judgment of dissolution. See O'Brien v. O'Brien, 138 Conn.App. 544, 557, 53 A.3d 1039 (2012) (reversing dissolution judgment only as to financial orders and remanding for new trial on all financial issues), cert. denied, 308 Conn. 937, 66 A.3d 500 (2013). The dispositive issue raised by the plaintiff in the present appeal is whether, after remand, the court improperly skewed its equitable distribution of marital assets in favor of the defendant on the ground that the plaintiff had engaged in certain financial transactions, both prior to the dissolution judgment and while the appeal from that judgment was pending, that violated the automatic orders applicable in all marital dissolution actions. See Practice Book § 25–5.1 Even if we assume without deciding that the court correctly found that the plaintiff's financial transactions amounted to technical violations of the automatic orders, we conclude that in the absence of some additional finding by the court that the plaintiff's actions were contumacious or were conducted with an intent to hide or to dissipate marital assets, the court improperly "took into account" the plaintiff's financial transactions and, for that reason, reduced the plaintiff's share of the property distribution. Accordingly, we reverse the judgment of the trial court and remand the matter for a new hearing on all financial orders.2

The following facts, which either were found by the court in its memorandum of decision or are undisputed in the record, and procedural history are relevant to our consideration of the issues raised on appeal. The plaintiff and the defendant were married in 1985. They had three children born of the marriage. At the time of the dissolution judgment in 2009, the children were nine, thirteen, and fifteen years old. Both parties are well educated, each having graduated with a degree from Cornell University. After the parties were married, the plaintiff also earned a law degree.

The plaintiff currently is employed as senior vice president, general counsel, and secretary of Omnicom Group, Inc. (Omnicom), a Fortune 200 company. Prior to that position, he worked as an attorney for several New York law firms. The plaintiff's base salary with Omnicom is $700,000 a year, but his compensation package also includes a variable annual cash bonus as well as a noncash component, which, in the past, has consisted of some form of company stock or stock options. Since 2004, the plaintiff's total yearly cash earnings averaged more than $1.2 million.

Prior to 2003, the defendant had a successful career in banking; her last position was as a managing director for Credit Suisse, where she earned more than $1 million a year. She left that career, however, in 2003, to devote her time to raising the parties' children. She returned to work in 2007, as an executive recruiter, but left that position in 2008. Later, in 2013, the defendant participated in a three month returnship program offered by JP Morgan Chase. On the basis of her earnings from the returnship program, the defendant has a present annual earning capacity of $143,000.

Money was never an issue for the parties until the dissolution action was commenced. Since 2001, they lived in a large home in Greenwich, where they often entertained. They frequently traveled with the children, who have attended private schools.

The plaintiff commenced the present action seeking dissolution of the parties' marriage in January, 2008.3 Service of the complaint included service of notice of the automatic orders in accordance with Practice Book §§ 25–2 and 25–5.

On February 12, 2009, several months prior to the dissolution trial, the plaintiff sold 28,127 shares of Omnicom stock, which represented all of the vested shares he held as of that date. The plaintiff was worried about the volatility of the stock market at that time in light of the stock market crash of October, 2008, and the ongoing global financial crisis, and believed it was in the best interest of the parties' financial well-being to sell the stock immediately to preserve assets. The sale price was $27.451 per share and resulted in cash proceeds of $772,140. All proceeds from the stock sale were placed in a Merrill Lynch account. The plaintiff disclosed the stock sale to the defendant by reflecting the change on his financial affidavit dated April 21, 2009. The plaintiff did not obtain the defendant's written consent prior to selling the stock, nor did he seek permission to do so from a judicial authority. Prior to the dissolution trial, the defendant did not file a motion for contempt claiming that the stock sale violated the automatic orders.

Several months later, the dissolution action was tried to the court, Hon. Howard T. Owens, Jr., judge trial referee. On September 18, 2009, the court rendered judgment dissolving the parties' marriage. As part of the orders issued in conjunction with the dissolution judgment, the court effectively awarded 45 percent of all marital assets to the plaintiff and 55 percent to the defendant, which included future proceeds from the court's ordered sale of the parties' marital home and lake house as well as "all vested and unvested stock and stock options...."4 The court made no mention of the plaintiff's predissolution sale of stock in its decision; the Merrill Lynch account containing the proceeds from that sale of stock was subject to the overall 45/55 percent split. During the pendency of the first appeal, the court lifted the appellate stay with respect to the Merrill Lynch account containing the proceeds from the stock sale, and funds were disbursed to the parties in accordance with a stipulated agreement.

The plaintiff appealed from the judgment of dissolution, challenging the court's unallocated alimony and child support award, as well as certain other aspects of the court's financial orders.5 The plaintiff did not challenge the property division orders. While that appeal was pending, the plaintiff, on two separate occasions, exercised a total of 75,000 stock options that had vested during the pendency of the appeal, immediately converting the resulting shares of stock into cash.6 The plaintiff had received the 75,000 unvested Omnicom stock options in March, 2009, during the pendency of the dissolution action, as part of his noncash compensation; 22,500 of those shares vested in October, 2010, and resulted in cash proceeds of $445,000. The remaining 52,500 shares vested in October, 2012, generating $1,345,050 in cash. On neither occasion did the plaintiff obtain the consent of the defendant or seek permission from any judicial authority prior to initiating the stock option transactions. The plaintiff fully preserved all proceeds from each of the stock option transactions in a Fidelity account.

This court issued its decision in the first appeal on October 16, 2012, reversing the judgment of dissolution only as to the trial court's financial orders. See O'Brien v. O'Brien, supra, 138 Conn.App. at 557, 53 A.3d 1039. We concluded that the court improperly had issued an unallocated award of alimony and child support without first considering and applying the child support guidelines; id., at 555, 53 A.3d 1039 ; and remanded the matter for a new trial on all financial issues. Id., at 557, 53 A.3d 1039.

On remand, the matter was tried before the court, Pinkus, J., over five days between February 10 and 19, 2014. On February 10, 2014, the defendant filed a motion for contempt in which she argued that the plaintiff's predissolution sale of stock and his postdissolution exercise of stock options violated the automatic orders. The defendant asked the court to adjudicate the plaintiff in contempt, to order the plaintiff to pay all legal fees and costs incurred in connection with the motion, and to award any other relief that the court deemed appropriate.

During the trial before Judge Pinkus, the defendant elicited testimony from an accounting expert, Mark Harrison, who opined that, had the plaintiff not sold the 28,127 shares of stock for $772,140 prior to the first dissolution trial, those same shares of stock would have been worth $2,140,465 on February 18, 2014, the date the expert testified at the retrial. The expert also testified that had the plaintiff not exercised his stock options in the manner that he did, netting a combined $1,790,050, those stock options would have been valued at $3,952,500 on February 18, 2014. Thus, the defendant sought to establish through her expert that the plaintiff's financial transactions, which the defendant asserted were made in violation of the automatic orders, resulted in a net loss to the marital estate of more than $3.5 million if valued at the date of the retrial.

In a written memorandum of decision, the court stated that, in crafting its financial orders, it had considered all relevant statutory criteria and that it had valued all marital assets as of the date of dissolution.7 The court noted that the parties had filed a stipulation dated February 18, 2014, in which the parties had assigned values for most of the marital assets as of the date of dissolution, and the court incorporated that stipulation by reference. The court further indicated that if any asset had no current value but had a value at the time of dissolution, the court took that fact "into account" in rendering its financial orders.

Turning specifically to the issue of the...

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21 cases
  • O'Brien v. O'Brien
    • United States
    • Connecticut Supreme Court
    • June 27, 2017
    ...lacked the authority to afford the defendant a remedy for the plaintiff's violation of the automatic orders. See O'Brien v. O'Brien , 161 Conn.App. 575, 591, 128 A.3d 595 (2015). We thereafter granted the defendant's petition for certification to appeal, limited to the following issue: "Did......
  • Hall v. Hall
    • United States
    • Connecticut Court of Appeals
    • June 19, 2018
    ...denied, 288 Conn. 902, 952 A.2d 809 (2008).8 The court also properly concluded that the plaintiff's reliance on O'Brien v. O'Brien , 161 Conn. App. 575, 128 A.3d 595 (2015), rev'd, 326 Conn. 81, 161 A.3d 1236 (2017), was misplaced. Although the trial court in O'Brien denied the defendant's ......
  • Marshall v. Marshall
    • United States
    • Connecticut Court of Appeals
    • October 6, 2020
    ...the prior one was brought." (Citations omitted; internal quotation marks omitted.) Id. The defendant relies on O'Brien v. O'Brien , 161 Conn. App. 575, 581, 128 A.3d 595 (2015), rev'd on other grounds, 326 Conn. 81, 161 A.3d 1236 (2017), as support for her argument that the plaintiff's fail......
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    • United States
    • Connecticut Court of Appeals
    • December 1, 2015
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