Lopiano v. Lopiano

• Decision Date: 29 December 1998
• Docket Number: (SC 15899)
• Citation: 247 Conn. 356,752 A.2d 1000
• Court: Connecticut Supreme Court
• Parties: RICHARD C. LOPIANO v. SHELLEY LOPIANO

247 Conn. 356

752 A.2d 1000

RICHARD C. LOPIANO v. SHELLEY LOPIANO

(SC 15899)

Supreme Court of Connecticut.

Argued September 29, 1998.

Officially released December 29, 1998.

Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js. Tad J. Bistor, with whom was J. Michael Cantore, Jr., for the appellant (plaintiff).

Lawrence M. Lapine, with whom were Christopher T. Coburn and, on the brief, Robert S. Bello and Thomas M. Cassone, for the appellee (defendant).

Opinion

KATZ, J.

The plaintiff, Richard C. Lopiano, appeals from the judgment of the trial court dissolving his marriage to the defendant, Shelley Lopiano, ordering a property distribution pursuant to General Statutes § 46b-81,¹ and awarding alimony and attorney's fees to the defendant pursuant to General Statutes §§ 46b-82 and 46b-62.² The issues to be decided on appeal are whether the trial court: (1) properly determined that a personal injury award obtained by the plaintiff was available, in its entirety, for equitable distribution pursuant to § 46b-81; (2) properly determined that the defendant should receive a percentage of that award; (3) abused its discretion in awarding alimony and attorney's fees to the defendant; and (4) abused its discretion in refusing to allow into evidence letters from the plaintiff's treating psychologist and psychiatrist articulating the plaintiffs psychological disabilities. Following the trial court's judgment, the plaintiff appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 65-1, formerly § 4023, and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The trial court reasonably could have found the following relevant facts. The parties were married on May 6, 1967, in Stamford, when the plaintiff was a member of the United States Marine Corps and the defendant was working as a secretary. The plaintiff served in Vietnam, participating in extensive engagements with the enemy and earning several decorations. He returned as a result of war wounds and was discharged several months later. The parties initially lived with the defendant's parents for six months before moving to their own apartment. They had two daughters, both of whom were adults at the time of the dissolution. While in the Marine Corps, the plaintiff obtained his high school diploma. Following his discharge from the service, he began employment with Polycast, where he worked for four years, and then, with a loan from the Veterans' Administration, started his own business, Excel Tree Service.

Beginning in 1977, the plaintiff began to drink heavily and to pay less attention to the business, while the defendant remained an integral part of the business, maintaining records, making appointments, billing customers and organizing the work crew. In 1981, the plaintiff first brought an action to dissolve the marriage, but thereafter the parties reconciled. They sold the business and their home and moved to Pennsylvania, where the plaintiff worked as a tree surgeon and the defendant worked part-time. After six months, the plaintiff returned to Connecticut and resumed a liaison with another woman with whom he had had an affair prior to his move to Pennsylvania. By this time, the plaintiff was using cocaine as well as alcohol.

Later that same year the plaintiff was diagnosed as having chronic posttraumatic stress disorder resulting from his military service. He was found to be 100 percent disabled and entitled to a Veterans' Administration award. Although separated from his wife and daughters, when in need of patient care, the plaintiff would return to his family and contribute to his family's support when asked. His work record and his behavior were erratic, and he was arrested on several occasions, three times for assaultive behavior and one time for conspiracy to sell cocaine. The plaintiff was placed on probation for the drug offense. He received in-patient care at a veterans' hospital in Pennsylvania and thereafter went through a rehabilitation program for eight months.

When the plaintiff returned to the workforce, he began construction work in New York. Unfortunately, in February, 1992, while at work, he sustained severe physical injuries causing him to be 100 percent physically disabled. He pursued a negligence action in New York, which, in 1996, resulted in the following jury award: $750,000 for past pain and suffering; $1,600,000 for future pain and suffering over the next twenty-nine years; $80,000 for past loss of earnings; $375,000 for future loss of earnings; and $15,000 for past medical expenses; totaling $2,820,000. This sum was reduced by $423,000 based upon a finding that the plaintiff was 15 percent negligent, leaving a net jury award of $2,397,000. The trial judge in the negligence action reduced the awards for pain and suffering, and made the following allocations: $150,000 for past pain and suffering; $400,000 for future pain and suffering; $75,000 for past loss of wages; and $175,000 for future loss of wages; leaving the plaintiff an award totaling $800,000. Because the plaintiff did not agree to these reduced amounts, he appealed the matter.

Following the accident, the defendant continued to be supportive, helping the plaintiff to relocate to a hospital near her so that she could visit him on a daily basis. As remarked upon by the trial court, "[t]o her credit she was tolerant of her husband's behavior throughout the marriage and its ensuing separation. On many occasions the plaintiff sought and the defendant always gave her help and support whether the difficulty was medical, psychological or involvement with the law.... The defendant never gave up hope for the marriage until the present action was started." The trial court rejected the plaintiff's assertions that the marriage had effectively ended fifteen years earlier, concluding that the parties were in a dysfunctional, bad, unhappy marriage in which the plaintiff continued to seek, and the defendant continued to provide, help and support.

Finally, the trial court found that the defendant is in good health with steady employment as a medical office secretary, earning $581 gross and $466 net weekly. She also has a slip and fall action pending, which the trial court deemed to be of uncertain value. As a consequence of his physical and psychological impairments, the plaintiff receives Social Security disability insurance of $679 monthly, veteran's disability benefits of $2038 monthly and workers' compensation benefits of $1400 monthly, totaling $957.44 weekly. The trial court determined that the plaintiffs personal injury award was property subject to equitable distribution and issued the following financial orders: (1) the plaintiff must pay to the defendant $100 weekly as periodic alimony until the defendant's remarriage, the death of either party, further court order or upon her receiving her share of the plaintiffs judgment or award from his personal injury action; (2) the plaintiff must pay to the defendant 25 percent of the net recovery received by the plaintiff by judgment or settlement of that action; and (3) when the plaintiff receives his net recovery, he shall pay to the defendant's attorney the sum of $10,000 as an allowance to defend this dissolution action.

I

The plaintiff makes three claims in connection with the trial court's distribution to the defendant of a percentage of his personal injury award. Specifically, he claims that the trial court should not have included as property subject to dissolution under § 46b-81 the portion of his personal injury award received as compensation for pain and suffering on the basis that such payments are compensation for personal losses. He next claims that the trial court improperly included as property the portion of his personal injury award received as compensation for postdissolution lost wages. Finally, he claims that the inclusion by the trial court of both of these items violated his rights to equal protection under article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments.³ In essence, the plaintiff argues that only the portion of his personal injury award compensating him for his lost wages and medical expenses incurred during the period of the marriage was properly included in the marital estate. We disagree.⁴ As a preliminary matter, we note that this court has not previously considered whether, at the time of a dissolution, a personal injury award is a property interest encompassed within the meaning of "property" under § 46b-81. Whether the jury award in the plaintiff's personal injury action was properly characterized as property available for distribution to the plaintiff under § 46b-81 is a matter of statutory interpretation, which is a matter of law, requiring plenary review. See Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In interpreting statutes, our analysis is guided by well established principles of statutory construction. "[O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 663, 680 A.2d 242 (1996).

"The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may `assign to either the husband or the wife all or any part of the estate of the other.... In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party ... shall consider the length...