Marshall v. Marshall

• Decision Date: 02 February 2010
• Docket Number: No. 30207.,No. 30442.,30207.,30442.
• Citation: 988 A.2d 314,119 Conn.App. 120
• Court: Connecticut Court of Appeals
• Parties: Sara S. MARSHALL v. Stephen P. MARSHALL. Stephen P. Marshall v. Sara S. Marshall.

988 A.2d 314

119 Conn.App. 120

Sara S. MARSHALL v. Stephen P. MARSHALL.

Stephen P. Marshall v. Sara S. Marshall.

No. 30207.

No. 30442.

Appellate Court of Connecticut.

Argued October 20, 2009.

Decided February 2, 2010.

Kenneth J. Bartschi, with whom were Karen L. Dowd, Hartford, and, on the brief, Arnold H. Rutkin, Westport, for the appellant (defendant in the first case, plaintiff in the second case).

Anthony L. Cenatiempo, with whom, on the brief, was Gaetano Ferro, for the appellee (plaintiff in the first case, defendant in the second case).

BISHOP, LAVINE and BORDEN, Js.

BORDEN, J.

In this consolidated appeal, the defendant, Stephen P. Marshall, appeals from the judgments of the trial court dissolving his marriage to the plaintiff, Sara S. Marshall, and granting her motion to strike his petition for a new trial.¹ On appeal, the defendant claims that the court improperly: (1) precluded a future court from considering the plaintiff's income in a motion to modify alimony, (2) fashioned its financial orders with a punitive motive, (3) failed to correct erroneous financial orders concerning the distribution of the parties' tangible personal property and (4) granted the plaintiff's motion to strike his petition for a new trial for failure to state a claim on which relief could be granted. We affirm in part and reverse in part the dissolution judgment of the trial court. We reverse the judgment as to the petition for a new trial.

The following facts and procedural history are relevant to our resolution of the defendant's appeals. The parties were married on October 8, 1977. In September, 2006, the plaintiff filed an amended complaint seeking a dissolution of her marriage to the defendant, claiming that their marriage had broken down irretrievably. The plaintiff was fifty-four years of age and the defendant was fifty-seven. Both were in relatively good health. At the time of the trial, they had two children born of the marriage, both of whom were adults.

By memorandum of decision filed on May 30, 2007, the court, Tierney, J., dissolved the parties' marriage. It found that the plaintiff, a real estate broker in New Canaan, had a gross weekly income of $1231 in 2006.² The court noted that her earnings recently had "been reduced due to the trauma of the divorce, the adverse real estate market and ten days of this dissolution trial."

As for the defendant, a thirty-three year career employee of International Business Machines Corporation (IBM) who had "proceeded up the corporate ladder" during the marriage and received "an excellent promotion to client executive for IBM's American Express account," the court found his gross weekly salary to be $4651. The defendant also "received stock options and incentive commissions. In 2006, he received $577,497 gross [income] in the form of cash and stock from stock options as well as $1,085,246 as incentive commissions for 2005 paid in early 2006. . . . Based on [his] earnings history, he anticipated receiving incentive commissions for the year 2006 early in 2007."

In addition to assessing the parties' financial state of affairs, the court examined the reasons for the marital breakdown and discussed these events in connection with the parties' proposed financial orders. The court found that the defendant's conduct, namely, an extramarital affair with another woman and the dissipation of assets in her favor, was, in fact, the cause of the marital breakdown.

The court entered comprehensive financial orders in connection with the parties' extensive assets. The plaintiff was awarded periodic alimony payments in the amount of $7410 per month along with one-third of the defendant's annual gross cash income in excess of $250,000. Several additional assets, including the net proceeds of the sale of the marital home located in New Canaan, a multitude of checking and savings accounts and a series of retirement, pension and IRA accounts that had been accrued by the defendant were ordered to be divided equally between the parties. The defendant also was ordered to pay the plaintiff a lump sum of $700,000 from his one-half share of the proceeds upon the sale of the marital home.

The financial orders also provided that the defendant was entitled to retire upon reaching the age of fifty-nine and that in the event of his retirement the periodic alimony payments to the plaintiff would be reduced to $1 per year. Furthermore, the alimony order would terminate upon the death of either party or the plaintiff's remarriage. The defendant expressly was permitted to seek modification of the alimony award pursuant to General Statutes § 46b-86 (b) if the plaintiff's financial needs were altered as a result of cohabitation. In accordance with § 46b-86 (a), however, the alimony order was otherwise "nonmodifiable as to term and amount." The provision precluding modification specifically provided that there was to be "no modification of the periodic alimony orders based on the [plaintiff's] employment, earnings or her income from any source, earned or unearned."

With regard to the parties' personal property, the plaintiff was awarded all of the furniture, furnishings, fixtures, bric-a-brac and appliances located in the New Canaan residence, and the defendant was awarded the same contents in what the court referred to as his Norwalk residence. It is undisputed, however, that this Norwalk residence, and the alleged contents within, were in fact nonexistent. See part I C of this opinion. Additional details concerning the court's property distribution orders will be set forth as required.

On June 18, 2007, the defendant filed a postjudgment motion to open and reargue and for articulation and clarification of several of the court's financial orders (postjudgment motion). In relevant part, the defendant claimed that the terms and conditions concerning the alimony payments —specifically, the provisions providing for the modifiability and nonmodifiability of the order—were in conflict with one another and, therefore, reargument and clarification were necessary to resolve this alleged ambiguity. The court disagreed. In its memorandum of decision, issued in response to the defendant's postjudgment motion, the court denied the defendant's requested relief and stated that the provisions concerning the modifiability of the order were not in conflict because the clause permitting the modification of alimony was "relate[d] to cohabitation only."

The defendant also sought reargument as to the court's distribution of all the furniture, furnishings and household items located in the New Canaan marital home to the plaintiff. In connection with this claim, the defendant directed the court's attention to the problematic order awarding him the furniture, furnishings and household items located in the defendant's "current residence" in Norwalk. Because this residence, along with any personal property contained within, were in fact nonexistent, the defendant claimed that the court mistakenly had awarded the plaintiff all of the marital furnishings and household items. According to the defendant, these marital furnishings and household items included the defendant's own home office equipment, "significant" personal home entertainment items and pieces of art accumulated during the marriage.

In its memorandum of decision on the defendant's postjudgment motion, the court conceded that its financial orders erroneously had attributed nonexistent furnishings in a nonexistent residence to the defendant. The court went on to state that it was "inclined to grant a new evidentiary hearing on the division of personal property in order to properly and completely allocate the personal property to each of the parties." Nevertheless, the court refused to open the personal property aspect of the judgment, in part, on the basis of the "`mosaic rule.'"³ The court feared that opening the judgment, even for the limited purpose of reallocating the parties' personal properly, necessarily would subject the entire complex financial distribution plan to review. Furthermore, the court concluded that it lacked the authority to order a postjudgment reallocation of the parties' personal property because the language of § 46b-81 expressly calls for the division of marital assets "[a]t the time of [the dissolution] decree. . . ." General Statutes § 46b-81(a). Accordingly, the court denied the defendant's motion to open the personal property component of the financial order. The court noted, however, that an appellate court is neither bound by the "mosaic rule" nor that jurisdictional limitation.

In August, 2007, while the defendant's postjudgment motion was pending, the defendant also filed a petition for a new trial pursuant to General Statutes § 52-270(a). The substance of this petition concerned a highly contentious letter that had been erroneously filed with the court by counsel for the plaintiff only weeks into the underlying dissolution of marriage action. The letter was ruled inadmissible at trial but also was attached to a request for production that the plaintiff improperly had filed with the court. In his petition for a new trial, the defendant claimed that the filing of this request constituted a mispleading and a reasonable cause to order a new trial.

In response, the plaintiff filed a motion to strike⁴ the petition, claiming, inter alia, that the improper filing of the inadmissible letter accompanying the request for production was not a mispleading within the purview of § 52-270(a). The defendant's petition for a new trial, therefore, according to the plaintiff, did not state a legally sufficient claim. The court agreed and concluded that because the document was not a pleading, the improper filing of it could not constitute a mispleading. Accordingly, the court granted the plaintiff's motion to strike the defendant's petition for failure to state a claim on which relief could be granted. The defendant thereafter appealed....