Kaczynski v. Kaczynski, No. 18235.

• Decision Date: 10 November 2009
• Docket Number: No. 18235.
• Court: Connecticut Supreme Court
• Parties: Bernadetta KACZYNSKI v. Dariusz KACZYNSKI.

981 A.2d 1068

294 Conn. 121

Bernadetta KACZYNSKI v. Dariusz KACZYNSKI.

No. 18235.

Supreme Court of Connecticut.

Argued September 8, 2009.

Decided November 10, 2009.

Richard C. Stewart, New Canaan, for the appellant (plaintiff).

William F. Gallagher, with whom, on the brief, was Jacqueline F. Barbara, Shelton, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ROGERS, C.J.

Our resolution of this appeal makes clear that when a trial court opinion is silent as to the standard of proof applied, an appellate court is not the proper forum to first raise a claim that the trial court applied the wrong standard when that claim could have been raised in, and more fairly remedied by, a motion for articulation or reargument. The plaintiff, Bernadetta Kaczynski, appeals following our grant of certification¹ from the judgment of the Appellate Court reversing the trial court's judgment dissolving her marriage to the defendant, Dariusz Kaczynski. See Kaczynski v. Kaczynski, 109 Conn.App. 381, 394, 951 A.2d 690 (2008). She claims that the Appellate Court improperly reversed the trial court's judgment because the trial court failed to indicate, either explicitly or implicitly, that it was applying the clear and convincing standard of proof when making findings of fraud. We agree and reverse the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant. The plaintiff and the defendant were married in 1993. In 2006, the plaintiff filed an amended complaint seeking dissolution of the marriage and alleging that the defendant had engaged in fraudulent transfers of marital property to members of his family. She requested that the court either set aside those transfers or, alternatively, take them into consideration when making an equitable distribution of the parties' assets. See Greco v. Greco, 275 Conn. 348, 358, 880 A.2d 872 (2005); Watson v. Watson, 221 Conn. 698, 708-709, 607 A.2d 383 (1992).

The trial court rendered judgment dissolving the parties' marriage. It further found that the defendant, in complicity with his two sisters, had taken financial advantage of the plaintiff by manipulating his assets to reduce his estate available for distribution.² Accordingly, when making its financial orders, the trial court took into account the value of certain assets that the defendant had transferred to his sisters and his niece.

The defendant thereafter filed a motion to reargue in which he contested the trial court's financial orders. He argued, in short, that they were inequitable because there was inadequate evidence to show that he had committed fraud by clear and convincing proof. Although the defendant, in his motion, disputed that the trial court's findings of fraud were supported by the evidence and claimed that the court had misconstrued particular evidence when making those findings, he did not argue that the court had applied the wrong standard of proof. At a hearing on the motion to reargue, the defendant argued similarly, again failing to contest or question what standard of proof had been applied.³ Following the hearing, the trial court made minor adjustments to its original orders in regard to the maintenance of medical and life insurance and the disposition of the parties' household furnishings.

The defendant thereafter appealed from the trial court's judgment to the Appellate Court. In conjunction with his appeal, the defendant filed a motion requesting that the trial court articulate whether an order that he pay certain attorney's fees was duplicative of, or in addition to, an earlier order. In that motion, the defendant did not request that the trial court articulate what standard of proof it had applied in finding fraud. Consequently, in responding to the motion, the trial court issued an articulation only as to the question of attorney's fees.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court "did not explicitly state, or otherwise implicitly indicate, whether the plaintiff had established by clear and convincing evidence that he had engaged in fraudulent transfers of property," and, therefore, the court should not have considered those transfers when distributing the parties' marital assets.⁴ Kaczynski v. Kaczynski, supra, 109 Conn.App. at 386, 951 A.2d 690. The Appellate Court, with one judge dissenting, agreed and reversed the trial court's judgment. Id., at 394, 951 A.2d 690. In so doing, the Appellate Court reasoned that, although the trial court's findings had ample support in the evidence, that court nevertheless did not state what burden of proof it had applied when it concluded that the defendant had engaged in fraudulent transfers. Id., at 390, 951 A.2d 690. The Appellate Court determined that the trial court was required to indicate, either explicitly or implicitly, that the findings of fraudulent transfer had been made by clear and convincing evidence, but had failed to do so.⁵ It concluded, therefore, that the trial court's findings of fraud could not stand. Id. This certified appeal followed.

The plaintiff claims that the Appellate Court improperly reversed the trial court's judgment on the ground that the trial court failed to state what standard of proof it had applied. According to the plaintiff, the Appellate Court should have rejected the defendant's claim because the record was inadequate to support it.⁶ We agree.

We first note the applicable standard of review. The question of whether a trial court has held a party to a less exacting standard of proof than the law requires is a legal one. Lopinto v. Haines, 185 Conn. 527, 536, 441 A.2d 151(1981). Accordingly, our review is plenary. See Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009).

In resolving the defendant's claim, the Appellate Court relied on its previous jurisprudence, specifically, Tessitore v. Tessitore, 31 Conn.App. 40, 43, 623 A.2d 496 (1993), and Patrocinio v. Yalanis, 4 Conn. App. 33, 36, 492 A.2d 215 (1985). See Kaczynski v. Kaczynski, supra, 109 Conn. App. at 387, 390, 951 A.2d 690. The issue raised in Tessitore is identical to the issue in the present case—whether a trial court in a dissolution action properly had considered a party's fraudulent transfer of marital assets in making financial orders without having made clear in its memorandum of decision that it first had found, by clear and convincing evidence, that the fraudulent transfer had occurred. Tessitore v. Tessitore, supra, at 42-43, 623 A.2d 496. Because the trial court's memorandum of decision in that case did not state which standard of proof it had applied, the Appellate Court relied on a rule that it previously had articulated in the case of Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 297, 478 A.2d 257 (1984), namely, that when a "trial court's ... memorandum of decision fails to state the standard of proof that it used [in a civil matter] ... [a reviewing court] assume[s] that the usual civil preponderance of the evidence standard was used." Tessitore v. Tessitore, supra, at 43, 623 A.2d 496. Again, relying on its previous jurisprudence, the Appellate Court allowed, however, that the trial court's decision need not be disturbed "if the memorandum implies that the court applied the proper standard. Patrocinio v. Yalanis, [supra, at 36, 492 A.2d 215]."⁷ Tessitore v. Tessitore, supra, at 43, 623 A.2d 496. In Tessitore, as in the present case, the Appellate Court concluded that the trial court's utilization of the correct standard of proof was neither explicit nor implicit and, accordingly, it reversed the trial court's judgment. Id.

In articulating the rule that, in the absence of a clear statement otherwise, it should be assumed that the normal, civil preponderance of the evidence standard was used, the court in Kavarco and Tessitore relied on this court's per curiam opinion disposing of several consolidated matters, captioned collectively as In re Juvenile Appeal (83-AB), 189 Conn. 58, 454 A.2d 271 (1983). With that decision, we reversed multiple judgments terminating parental rights pursuant to General Statutes (Rev. to 1981) § 17-43a because the trial courts had applied the preponderance of the evidence standard rather than the clear and convincing standard. Id., at 60, 454 A.2d 271. We remanded the cases for new proceedings in light of the United States Supreme Court's then recent opinion in Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), which held that due process required that a heightened standard be applied in termination proceedings. When Santosky was decided in 1982, thirty-five states already were employing a heightened standard, by virtue of either statute or court decision. Id., at 749, 749-50 n. 3, 102 S.Ct. 1388. Connecticut was not, however, among those states. Although our legislature thereafter amended § 17-43a to comply with the mandate of Santosky; see Public Acts 1982, No. 82-202; General Statutes (Rev. to 1983) § 17-43a; see also In re Juvenile Appeal (84-AB), 192 Conn. 254, 257 n. 4, 471 A.2d 1380 (1984); the terminations being challenged in In re Juvenile Appeal (83-AB) had occurred prior to the amendment.

Before reversing the judgments in light of Santosky, we stated: "In each of [the cases on appeal], the judgment of the [trial] court contains no indication of the standard of proof applied by the trial judge in arriving at a decision; we assume, therefore, that the trial court applied the civil standard of a fair preponderance of the evidence." In re Juvenile Appeal (83-AB), supra, 189 Conn. at 59, 454 A.2d 271. It is the foregoing statement on which the Appellate Court relied in deciding Kavarco v. T.J.E., Inc., supra, 2 Conn.App. at 297, 478 A.2d 257, and, thereafter, Tessitore v. Tessitore, supra, 31 Conn.App. at 43, 623 A.2d 496.

After reviewing the context of our decision in In re Juvenile Appeal (83-AB), we conclude that the Appellate...