Marina Bornemann v. Bornemann

Decision Date21 July 1998
Citation752 A.2d 978,245 Conn. 508
Parties(Conn. 1998) MARINA BORNEMANN v. RICHARD BORNEMANN (SC 15821)
CourtConnecticut Supreme Court

Lori Welch-Rubin, with whom was Jane Grossman, certified legal intern, for the appellant (defendant).

William H. Cashman, for the appellee (plaintiff).

Callahan, C. J., and Borden, Norcott, Katz and McDonald, Js.

Katz, J.

The defendant, Richard Bornemann, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Marina Bornemann, awarding joint legal custody of the parties' minor child, ordering a property distribution pursuant to General Statutes § 46b-81,1 and awarding rehabilitative alimony and attorney's fees to the plaintiff. The issues to be decided on appeal are whether: (1) the trial court properly determined that certain stock options were available for equitable distribution pursuant to § 46b-81 although the options were not exercisable at the time of dissolution and the defendant's ability eventually to exercise the options on their respective maturity dates was contingent upon his adhering to the terms of an agreement with his former employer; (2) the trial court abused its discretion in awarding those stock options to the plaintiff; (3) the trial court abused its discretion in awarding rehabilitative alimony to the plaintiff; (4) the trial court abused its discretion in awarding attorney's fees to the plaintiff; and (5) the trial court properly awarded items to the defendant that neither party owned but as to which the defendant held a contractual right to purchase. Following the trial court's judgment, the defendant appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts that are relevant to this appeal are undisputed. The parties were married on December 17, 1990, when the plaintiff was twenty-two years of age and the defendant was thirty-four years of age. Both parties were college graduates at that time. The parties have one child, Maximillian Marshall Bornemann (Marshall), who was born prematurely on January 25, 1991, and as a result has experienced developmental delays and has special needs. Throughout most of the marriage, the defendant was employed full-time and he has extensive employment experience in the areas of management and lobbying. His most recently held position as a government affairs representative was obtained in July, 1992, and terminated in July, 1995. In that position, he earned approximately $128,000 per year in base compensation and received stock options and bonuses as additional compensation. The plaintiff's employment experience is limited. Prior to the birth of Marshall, the plaintiff briefly was employed full-time, at one point earning an annual salary of $27,000. After Marshall's birth, the plaintiff assumed the role of homemaker and primary caretaker of Marshall. Occasionally, she also worked on a part-time basis as a tennis instructor, tennis club membership recruiter, high school lacrosse coach, and mystery shopper, and volunteered at various charity events.

Approximately three and one-half years into their marriage, the parties separated. A two year pendente lite period followed, during which the parties shared responsibility for Marshall, each caring for him three and one-half days per week. The defendant resided in Washington, D.C., where his employment was based, from Tuesday through Saturday of every week while the plaintiff, on those days, occupied the family home in Madison with Marshall. From Saturday through Tuesday of every week, the defendant returned to the family home to stay with Marshall, while the plaintiff vacated the family residence and went to reside with a man with whom she had become involved during the marriage. During the pendente lite period, the defendant paid child support to the plaintiff in the amount of $250 per week, pendente lite alimony in the amount of $1070 per month and, in addition, paid all of the other household expenses, including the home mortgage and taxes, home maintenance expenses, credit card debt, and automobile expenses, and maintained health insurance for the family and a life insurance policy on himself.

In July, 1995, the defendant's employer, Kansas City Southern Industries (Southern Industries), decided to terminate the defendant's employment. The defendant and his employer entered into negotiations as to the terms of his termination, and eventually reached an agreement in December, 1995. The agreement was structured so as to preserve for the defendant the opportunity to exercise certain stock options that had been issued to him as part of his initial employment agreement. As part of that initial agreement, the defendant had received options to purchase 30,000 shares of Southern Industries' stock that became exercisable at the rate of 6000 shares per year subject to the condition that the defendant continued to be employed with Southern Industries at the time the options became exercisable. In July, 1995, when negotiations concerning the termination agreement began, only the first two flights of options had become exercisable. The third flight became exercisable in October, 1995, prior to the actual signing of the agreement in December, 1995. The termination agreement provided that the defendant would remain employed through October 1, 1997, although beginning on January 1, 1997, his salary would be reduced to $1 per year. The agreement also required that the defendant not accept other employment if such employment would conflict with the interests of Southern Industries during the period covered by the agreement, that the defendant refrain from revealing any of Southern Industries' trade secrets, and that the defendant release any and all claims against Southern Industries arising before the date of the agreement. In return, the defendant would continue to be an employee of Southern Industries through October 1, 1997, so that as the fourth and fifth flights of stock options became exercisable, he would be able to exercise them.

As of the date of the dissolution proceedings, the defendant had not yet succeeded in obtaining new employment. The plaintiff admitted that she had not seriously sought employment during the two year pendente lite period. She indicated, however, that she intended to seek full-time employment in the fall of 1997 when Marshall was scheduled to enter a full day program at school.

In dissolving the parties' marriage, the trial court determined that neither party was at fault for the demise of the marriage. Further, it found that while both parties presently were underemployed, only the plaintiff was underemployed as that term is used in the Child Support and Arrearage Guidelines. Regs., Conn. State Agencies § 46b-215a-1 et seq. 2 The court stated that, in setting the amount of child support to be paid by the defendant at $247 per week, it was deviating from the guidelines on the basis of the plaintiff's underemployment and on the basis of the equal access schedule under which the plaintiff and the defendant would have physical custody of Marshall for an equal amount of time each week. 3 The court awarded the family residence, the family automobile, all of the shares of stock in Southern Industries currently owned by the defendant, and one half of the stock options associated with the first four flights of options to the plaintiff. In addition, the court ordered the defendant to pay $400 per week for eighteen months to the plaintiff as rehabilitative alimony, and $16,000 toward the plaintiff's attorney's fees. The court awarded the defendant the remaining fifth flight of stock options, one half of the first four flights of stock options, and the right to purchase the contents of his rented Washington, D.C. residence. Each party was also awarded miscellaneous other assets as shown on their respective financial affidavits, which included small bank accounts, to be retained free of any claim by the other.

I.

The defendant first claims that the trial court's distribution of the "unvested" fourth and fifth flights of stock options -- options that were not yet exercisable at the time of dissolution -- was improper under § 46b-81. Specifically, the defendant argues that the fourth and fifth flights of stock options were intended as compensation for future services to be performed by him after the date of dissolution and, therefore, were not marital assets available for distribution to the plaintiff. The plaintiff disputes the defendant's contention that the stock options were intended as compensation for future services, arguing that they were received as compensation for past services and constituted an asset of the marital estate. We conclude that, under the circumstances, the fourth and fifth flights of options properly were distributed as marital property.

Whether the fourth and fifth flights of stock options were properly characterized as marital property available for distribution to the plaintiff under § 46b-81 is a matter of statutory interpretation. Statutory interpretation is a matter of law and, therefore, our review is plenary. 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. In construing statutes, "[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.)...

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