Greco v. Greco

• Decision Date: 06 September 2005
• Docket Number: (SC 17220).
• Citation: 275 Conn. 348,880 A.2d 872
• Court: Connecticut Supreme Court
• Parties: EILEEN N. GRECO v. GEORGE GRECO ET AL.

275 Conn. 348

880 A.2d 872

EILEEN N. GRECO v. GEORGE GRECO ET AL.

(SC 17220).

Supreme Court of Connecticut.

Argued April 18, 2005.

Officially released September 6, 2005.

Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

William F. Gallagher, with whom, on the brief, was Barbara L. Cox, for the appellant (plaintiff).

James R. Greenfield, with whom was Kelly P. Mai, for the appellee (named defendant).

Opinion

NORCOTT, J.

The sole issue in this certified appeal is whether the Appellate Court properly concluded that the trial court abused its discretion in awarding the plaintiff in a dissolution of marriage action 98.5 percent of the marital property plus alimony and attorney's fees exceeding the defendant's income. The plaintiff, Eileen N. Greco, appeals following our grant of certification¹ from the judgment of the Appellate Court reversing the trial court's judgment as to all financial orders imposed on the named defendant, George Greco.² Greco v. Greco, 82 Conn. App. 768, 777, 847 A.2d 1017 (2004). We conclude that the trial court abused its discretion by failing to consider adequately the parties' current financial circumstances in forming its judgment. Accordingly, we affirm the judgment of the Appellate Court.

The following background facts and procedural history are set forth in the Appellate Court opinion. "The plaintiff and the defendant were married on September 28, 1974. It was the second marriage for both parties. At the time of the marriage, the defendant had custody of his five children from his prior marriage and the plaintiff had custody of a child born during her prior marriage. In 1997, DNA testing revealed that the defendant is that child's biological father. The parties also had a child together born during their marriage.

"Before the parties were married, the defendant owned and operated a gasoline service station. After they were married, the defendant sold the service station and opened an auto parts business. The defendant's five children from his prior marriage were all involved in operating the auto parts business, Greco's Auto Parts, Inc., as was the parties' first child. The defendant also formed and controlled a partnership called LDGG Limited Partnership. Throughout the marriage, the plaintiff was a full-time homemaker, caring for the children and managing the household.

"In February, 2000, the plaintiff brought this dissolution action by a one count complaint, claiming an irretrievable breakdown in the marital relationship. She sought the dissolution of the parties' marriage, an equitable distribution of the parties' property, alimony and attorney's fees. On September 25, 2001, the plaintiff filed a three count third amended complaint. The first count was directed against the defendant and was identical to the one count in the original complaint. The second count was directed against the defendant, the defendant's five adult children from his prior marriage, two spray trusts established for the parties' two children and the LDGG Limited Partnership. That count alleged that the defendant's transfers of certain assets were fraudulent in violation of the Uniform Fraudulent Transfer Act, General Statutes § 52-552a et seq., and, therefore, they should be set aside and the assets returned to the marital estate.³ The third count essentially was identical to the second count.

"On October 11, 2001, the defendant filed an answer and a counterclaim for dissolution of marriage. On October 30, 2001, the defendant's five children from his prior marriage filed an answer, special defenses and a four count counterclaim. They also filed a claim for a jury trial. On that same date, the LDGG Limited Partnership and the trustee of the two trusts filed their answers and special defenses. On November 8, 2001, the plaintiff filed an answer and special defenses to the counterclaims of the defendant's five children from his prior marriage.

"After a lengthy trial, the court dissolved the parties' marriage on January 11, 2002, on the basis of irretrievable breakdown. The court also determined that the plaintiff failed to prove her fraudulent transfer claims by the requisite clear and convincing evidence. The court, however, stated that although it would not set aside the transfers or include the assets involved in the marital estate, it would consider the defendant's removal of those assets from the marital estate in fashioning its financial orders.

"In its orders, the court ordered the defendant to pay to the plaintiff $710 per week in alimony until the death of either party, the plaintiff's remarriage or her cohabitation. It also ordered the defendant to maintain his life insurance for the plaintiff's benefit and to provide health insurance for her for three years.⁴ The court further ordered the defendant to transfer to the plaintiff his interest in the marital residence at 24 Sunbrook Road in Woodbridge. In addition, the court ordered the defendant to transfer to the plaintiff his stock in Greco's Auto Parts, Inc., or, alternatively, the value of that stock, which the court found to be $250,000.⁵ Finally, the court ordered the defendant to transfer to the plaintiff his individual retirement account, which was valued at approximately $9900, and to pay to the plaintiff $100,000 in attorney's fees." (Internal quotation marks omitted.) Id., 769-72.

The defendant appealed from the trial court's judgment to the Appellate Court, claiming the trial court improperly: "(1) overvalued the defendant's stock in Greco's Auto Parts, Inc., (2) improperly awarded the plaintiff 98 percent of the parties' marital assets, (3) improperly relied on gross income, rather than net income, in determining the defendant's alimony obligation, (4) improperly ordered the defendant to pay alimony and other expenses that exceed his available income, and (5) abused its discretion in awarding the plaintiff $100,000 in attorney's fees." Id., 769. The Appellate Court agreed with the defendant's third and fourth claims and reversed the trial court's judgment as to all financial orders, declining to reach the defendant's other claims. Id., 776-77.

On appeal, the plaintiff makes three claims. Specifically, she claims that the Appellate Court improperly: (1) disregarded the trial court's finding that the defendant was not a credible witness and placed the burden on the plaintiff to disprove the defendant's allegedly unsubstantiated allegation that the trial court's award of alimony was based on gross income rather than earning capacity; (2) held the trial court's financial awards unreasonable in light of the evidence presented at trial; and (3) reversed the trial court's $100,000 award of attorney's fees.

The defendant, in response, argues that the Appellate Court properly concluded that the trial court's alimony award was based on gross income rather than net income and properly disregarded the plaintiff's claim that the award reflected earning capacity. He further contends that the Appellate Court properly reversed the trial court's financial awards as unreasonable and contrary to law and held the award of attorney's fees to be an abuse of the trial court's discretion.⁶ We agree with the defendant's contention that the Appellate Court properly reversed the trial court's judgment, but we affirm the Appellate Court's judgment for different reasons.

At the outset, we note that "[t]he issues involving financial orders are entirely interwoven. The 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.) Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). Furthermore, trial courts are endowed with broad discretion to distribute property in connection with a dissolution of marriage. Bornemann v. Bornemann, 245 Conn. 508, 531-32, 752 A.2d 978 (1998). With those caveats in mind, we address in turn the three parts of the trial court's financial award.

I DISTRIBUTION OF MARITAL PROPERTY

Although a trial court is afforded broad discretion when distributing marital property, it must take into account several statutory factors. Lopiano v. Lopiano, 247 Conn. 356, 374-75, 752 A.2d 1000 (1998). These factors, enumerated in General Statutes § 46b-81,⁷ include "the age, health, station, occupation, amount and sources of income, vocational skills, employability. . . and needs of each of the parties . . . ." (Internal quotation marks omitted.) Lopiano v. Lopiano, supra, 375. Although the trial court "need not give each factor equal weight . . . or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor," it must take each into account. (Internal quotation marks omitted.) Id.

It is true that "trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings." (Internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 682, 830 A.2d 193 (2003). Generally, we will not overturn a trial court's division of marital property unless it "misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was [its] duty to regard." (Internal quotation marks omitted.) Bornemann v. Bornemann, supra, 245 Conn. 532. We must, however, consider, the paramount "purpose of a property division pursuant to a dissolution proceeding [which] is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution." Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023 (1999). Under the circumstances of this case, an award of 98.5 percent of the marital estate, or $720,936.56 of the $731,870.21 estate, fails to capture this maxim.

Although the trial court stated that it had considered all of the statutory criteria when it fashioned the financial award, its final judgment indicates otherwise. As the trial court acknowledged, ...