Burns v. Burns, 13490

• Decision Date: 18 June 1996
• Docket Number: No. 13490,13490
• Citation: 41 Conn.App. 716,677 A.2d 971
• Court: Connecticut Court of Appeals
• Parties: Patricia BURNS v. Roger J. BURNS.

Page 971

677 A.2d 971

41 Conn.App. 716

Patricia BURNS v. Roger J. BURNS.

No. 13490.

Appellate Court of Connecticut.

Submitted on Briefs Dec. 14, 1995.

Decided June 18, 1996.

William H. Narwold, C. Ian McLachlan and Charles D. Ray, Hartford, filed a brief for appellant (defendant).

Kathleen A. Hogan and Arnold H. Rutkin, Westport, filed a brief for appellee (plaintiff).

Before SCHALLER, SPEAR and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Judge.

The defendant, Roger J. Burns, appeals from the trial court's financial orders in this dissolution action. The defendant claims that the trial court abused its discretion in entering financial orders that (1) "are so excessive as to be punitive," and (2) "preclude or limit modification in the future without consideration of then existing circumstances." We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff, Patricia Burns, and the defendant were married in 1966. During the marriage, the defendant attended the Wharton School of Business. He then pursued a demanding career that often required that he be away from home. In 1993, at the time of trial, the defendant's salary was $232,080 per year. He has received bonuses in addition to his salary, and in 1992 he received a bonus of $82,500. The plaintiff devoted her time to raising their two children and to maintaining the home; she also entertained socially as her husband's career required. For the three years before trial, the plaintiff worked as a decorator in an architectural firm where she earned $29,500 per year.

During the six years prior to the initiation of this action, the plaintiff learned that the defendant was involved in several extramarital affairs, resulting in a series of separations and reconciliations between the parties. One year prior to the initiation of this action, the defendant purchased a house in Connecticut. The plaintiff discovered that the defendant's infidelities continued after the purchase of that house and she filed for divorce in January, 1992.

With respect to the parties' property, the trial court found the following. The plaintiff resides in a New York City apartment that the parties purchased for $440,000 with a $300,000 mortgage. The value of the property at the time of trial was $345,000. The Connecticut house, where the defendant resides, was purchased for $690,000 and has a mortgage of over $500,000. The value of that property at the time of trial was $665,000.

During the marriage, the parties borrowed funds to purchase real estate and stock, and during the last years of the marriage the defendant borrowed money to pay for his living expenses. During the last eight years of the marriage, the defendant spent money on gifts for his women friends. He also purchased a country club membership with $25,000 of marital funds with no intention of allowing the plaintiff to share in its benefits. His 1992 financial affidavit showed expenditures of over $500,000, more than $300,000 of which was used for personal expenses. The defendant also used marital assets to assist his parents without consulting the plaintiff. In 1990, the defendant purchased his parents' home for $265,000--valued at $190,000 at the time of trial--and took out two mortgages on the property totaling $280,000. The second mortgage was to his parents and a bank held the first mortgage. The defendant pays his mother $1140 per month on the mortgage as well as an additional $1300 per month for her support.

The trial court also found that while both parties share the responsibility for the breakdown of the relationship, "it was the defendant's Janus-faced handling of the marital relationship, the separations and reconciliations, that was the catalyst which caused the breakdown of the marriage. He did not merely lie to the plaintiff but led her to believe that there was hope for their relationship while humiliating her and professing his continued love and regard for her."

On December 29, 1993, the parties stipulated to the dissolution of the marriage, and the trial court dissolved the marriage. On March 22, 1994, the court rendered financial orders after stating that it "carefully considered the criteria set forth in General Statutes §§ 46b-56, 46b-62, 46b-81, 46b-82, 46b-84 and 46b-86(b)." The trial court also stated that it weighed this court's holding in O'Neill v. O'Neill, 13 Conn.App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), in which this court stated that "[a] property division ought to accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets. The investment of human capital in homemaking has worth and should be evaluated in a property division incident to a dissolution of marriage."

The trial court entered the following pertinent financial orders: (1) the defendant shall pay periodic alimony of $5666.67 per month until the death of either party, which shall not terminate on the plaintiff's remarriage or cohabitation or the defendant's retirement, but may be modified on any of these grounds based on a substantial change of circumstances; (2) the defendant shall pay alimony in the amount of 20 percent of the defendant's earned income from all sources of employment including, but not limited to, bonuses from stock options; (3) the defendant shall receive the Connecticut property; (4) the plaintiff shall receive the New York City apartment; (5) the defendant shall receive the former home of his parents in New Jersey; (6) the plaintiff shall retain her Smith Barney account, her Chemical Bank checking account, her interest in the Seaview trust, her IRA and Keough accounts and her automobile; (7) the defendant shall retain the country club membership, his antique car, his bank accounts and stock options as shown on his financial affidavit; (8) the defendant shall transfer and assign to the plaintiff his 401k plan and 90 percent of the value of the marketable securities, as those values existed on December 29, 1993, and pay collateral loans to Fleet and Princeton Banks; (9) the plaintiff shall receive 62 percent of the defendant's pension plans; (10) the defendant shall maintain life insurance in the amount of $400,000 for the benefit of the plaintiff; and (11) the defendant shall pay $15,000 toward the plaintiff's counsel fees.

I

The defendant first claims that the trial court abused its discretion by entering financial orders that are so excessive as to be punitive. The defendant claims that the trial court awarded the plaintiff 90 percent of the parties' net worth, leaving only the remaining 10 percent for him. He claims that the trial court failed to justify the award properly and, absent that justification, the one-sided nature of the award indicates that the trial court sought to punish him. We conclude that the trial court did not abuse its discretion.

"In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did." Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983). "An award of a larger percentage of the total marital assets to one party is not a per se abuse of discretion." Siracusa v. Siracusa, 30 Conn.App. 560, 567, 621 A.2d 309 (1993); Damon v. Damon, 23 Conn.App. 111, 113, 579 A.2d 124 (1990).

"General Statutes § 46b-81(c) sets forth numerous factors that a trial court must consider in assigning the property of the parties whose marriage is to be dissolved by the court. That section mandates that the court consider not only the contribution of each party toward acquisition of the property, but the length of the marriage, the cause of the dissolution and 'the age, health, station, occupation, amount and sources of income, vocational skill, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.' General Statutes § 46b-81(c). The court must consider all of the statutory criteria in determining how to divide the parties' property in a dissolution action. Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985). 'A trial court, however, need not give each factor equal weight; Kane v. Parry, [24 Conn.App. 307, 313-14, 588 A.2d 227 (1991) ]; or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.' Savage v. Savage, 25 Conn.App. 693, 701, 596 A.2d 23 (1991).... We point out that in determining the 'contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates' ... the trial court must 'accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets.' O'Neill v. O'Neill, 13 Conn.App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988)." (Citations omitted; emphasis in original.) Siracusa v. Siracusa, supra, 30 Conn.App. at 566-67, 621 A.2d 309. "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion ... as long as it considers all relevant statutory criteria.... On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria...." (Citation omitted; internal quotation marks omitted.) Id., at 567-68, 621 A.2d 309.

In distributing the marital assets pursuant to the statutory criteria, the trial court must consider the value of the assets, but need not assign them specific values. Puris v. Puris, 30 Conn.App. 443, 450, 620 A.2d 829 (1993). In this case, the trial court did not set forth the value of any of the marital property except the real property. Therefore, we are unable...