Misthopoulos v. Misthopoulos

• Decision Date: 13 July 2010
• Docket Number: No. 17816.,17816.
• Citation: 297 Conn. 358,999 A.2d 721
• Court: Connecticut Supreme Court
• Parties: Patricia MISTHOPOULOSv.Noel MISTHOPOULOS.

297 Conn. 358

999 A.2d 721

Patricia MISTHOPOULOSv.Noel MISTHOPOULOS.

No. 17816.

Supreme Court of Connecticut.

Argued Sept. 19, 2008.

Decided July 13, 2010.

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Kenneth J. Bartschi, with whom were Robert M. Shields, Jr., Hartford, and, on the brief, Susan A. Moch, Westport, for the appellant (defendant).

Gary I. Cohen, with whom, on the brief, was Marci Finkelstein, Greenwich, for the appellee (plaintiff).

NORCOTT, KATZ, VERTEFEUILLE, ZARELLA and SCHALLER, Js.^*

VERTEFEUILLE, J.

The defendant, Noel Misthopoulos, appeals ¹ from the judgment of the trial court dissolving his marriage to the plaintiff, Patricia Misthopoulos, and entering related financial orders. On appeal, the defendant claims that the trial court improperly: (1) ordered him to pay a portion of his net cash employment bonus as child support; (2) retroactively modified pendente lite alimony and support orders; (3) divided one of the parties' marital assets twice; (4) admitted a recording into evidence; and (5) ordered him to pay a portion of the plaintiff's attorney's fees.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of the present appeal. The parties were married on June 11, 1988, in Boston, Massachusetts, and have resided continuously in Connecticut since 1998. The parties' only children are triplets (two sons and one daughter) born on April 18, 1996.

At the time of the trial court proceedings, the plaintiff was approximately forty-eight years old. She holds a bachelor's degree from Suffolk University and a master's degree in business administration from New York University. At the beginning of the parties' marriage, the plaintiff lived and worked in New York City while the defendant completed his law degree in Pennsylvania. The plaintiff initially managed a restaurant, working forty to fifty hours per week. After the defendant finished law school, the plaintiff worked three jobs to support the parties while the defendant studied for the bar examination and searched for a job. In 1989, the plaintiff began working at Citibank as an administrative assistant. The plaintiff remained employed by Citibank up to and during the first few months of her pregnancy with the triplets, at which time her physician ordered her to remain on bed rest for the remainder of her pregnancy. For the remainder of the parties' marriage, the plaintiff had been a stay-at-home mother. At the time she left her employment with Citibank, the plaintiff was earning approximately $65,000 to $75,000 annually. After the parties separated, the plaintiff obtained her real estate license and had earned approximately $25,000 in commissions at the time of the dissolution proceedings.

At the time of the dissolution proceedings, the defendant was forty-three years old. He holds a bachelor's degree from New York University, a law degree from Villanova University and a master's degree in business administration from New York University. He completed the last year of law school and all of his master's degree program during the parties' marriage. During the course of their marriage, the defendant was employed by a number of different companies, including Credit Suisse/First Boston, Bear Stearns, Deutsche Bank, and Abernathy Consulting. The defendant also operated his own hedge fund for a period of time during the parties' marriage. Since 2004, the defendant has been employed by Bank of America.

The defendant has been very successful in his business career, and the family, which lives in Darien, has enjoyed the financial benefits that flowed from this success.² At the time of the dissolution, the defendant was earning a yearly base salary of approximately $150,000. In addition, he earned incentive compensation each year, consisting of an annual cash bonus and an annual stock bonus, which is comprised of both stock options and restricted stock. The defendant receives his incentive compensation in January of each year based on his performance in the previous calendar year. For his performance in 2005, the defendant received a net cash bonus of $565,740. The defendant's taxable wages for 2005, including a bonus for his performance in 2004, were $1,028,612.40.

The plaintiff initiated the dissolution action in 2004. In July, 2006, the trial court dissolved the parties' marriage on the ground of irretrievable breakdown. The trial court awarded the parties joint legal custody of the children, who will reside primarily with the plaintiff. The judgment of the trial court incorporated the parties' parenting agreement, which established a parenting schedule in which the children were with the defendant one weeknight per week and every other weekend both during the school year and in the summer. The trial court's orders further provided a specific parenting schedule for holidays and vacations.

The trial court ordered the defendant to pay the following as child support: $477 per week based on his weekly salary, plus 20 percent of his annual net cash bonus after state and federal taxes are deducted, and 20 percent of any annual state or federal tax refund that he might receive. The trial court further ordered the defendant to pay 67 percent of all work-related daycare expenses, summer day camp expenses, and expenses for extracurricular activities for the minor children. The defendant also was ordered to provide medical and dental insurance for the children and to pay 67 percent of all unreimbursed medical, dental, orthodontia, optical and psychological expenses. The trial court reserved jurisdiction as to how the children's college expenses should be paid and did not enter any order for payment of those expenses.

The trial court ordered the defendant to pay the following in alimony to the plaintiff for a period of ten years from the date of judgment: $525 per week plus 20 percent of his annual net cash bonus after state and federal taxes; and 20 percent of any state or federal tax refund he received. In addition, the defendant was ordered to obtain medical insurance for the plaintiff for the maximum period allowed by federal law. The defendant also was ordered to designate the plaintiff as the beneficiary of a life insurance policy in the amount of $2 million to remain in effect for as long as he was obligated to pay alimony, child support or postmajority educational support.

The trial court also divided the parties' marital assets, which, other than the marital home, consisted primarily of bank accounts and investment accounts. The total assets awarded to the plaintiff were valued at more than $3.2 million.³ The total assets awarded to the defendant were valued at more than $457,850.⁴ The trial court also awarded the plaintiff 70 percent of the parties' vested restricted stock and 70 percent of the parties' vested stock options. The trial court awarded the defendant 30 percent of the parties' vested restricted stock, 30 percent of the parties' vested stock options and 100 percent of the parties' unvested restricted stock and stock options. This appeal followed.

I

The defendant first claims that the trial court improperly ordered him to pay 20 percent of his annual net cash bonus as additional child support (additional child support). More specifically, the defendant asserts that the trial court's award was improper because it was not based on the needs of the children and, in addition, that the trial court improperly deviated from the state child support and arrearage guidelines (guidelines); see Regs., Conn. State Agencies § 46b-215a-1 et seq.; in making its award.⁵ In response, the plaintiff asserts that the trial court's award was proper and is consistent with General Statutes § 46b-84,⁶ and she contends that the guidelines did not apply and therefore that no deviation factors had to be applied. Our resolution of this issue is controlled by the plurality opinion in this court's recent decision Maturo v. Maturo, 296 Conn. 80, 995 A.2d 1 (2010). We agree with the defendant as to the additional child support award and, therefore, we reverse the judgment of the trial court with respect to that order.

The following additional facts are necessary to our resolution of the defendant's first claim. In ordering the defendant to pay child support in the amount of $477 per week plus 20 percent of his annual net cash bonus after state and federal taxes were deducted, the trial court stated the following: “The [guidelines] reach a maximum [combined] weekly income of $4000 per week and the [defendant's] income when his yearly [cash] bonus is included is well in excess of $5000 per week. The basis for the deviation from the [guidelines] is the [defendant's] substantial assets, the [defendant's] superior earning capacity, the extraordinary disparity in parental income, and the significant and essential needs of the [plaintiff] including, but not limited to, the need to provide a home for the children. The court is also making this order because it has not considered the [defendant's] yearly noncash compensation (composed of stock options and restricted stock) in making [its] alimony and child support awards. The court did consider the [defendant's] vested stock options and vested restricted stock in the property division.”

We begin by setting forth the applicable standard of review. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case....” (Internal quotation marks omitted.) Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007), quoting Borkowski v. Borkowski, 228 Conn. 729, 739, 638 A.2d 1060 (1994)....