Mary E. Calo-Turner v. William Turner

In this marital dissolution (divorce) appeal, the
defendant, William Turner, challenges the financial
orders entered by the trial court in its judgment dissolving
the parties' marriage. The defendant alleges that
the court (1) incorrectly concluded that the parties were
equally responsible for the breakdown of the marriage
(2) abused its discretion by awarding the plaintiff, Mary
E. Calo-Turner, $300 per week in alimony and (3)
abused its discretion by awarding the plaintiff one-half
of the 66,176 shares of Sycamore Networks, Inc., stock
that were held solely in the defendant's name. We affirm
the judgment of the trial court.

The following facts and procedural history are rele-
vant to our discussion of the issues on appeal. The
parties were married on February 24, 1990. The plaintiff,
who was born in 1957, was diagnosed in 1998 with a
life threatening illness. Confined to a wheelchair, she
has difficulty with speech and motor functioning and
requires assistance with cooking and cleaning. As of
the date of the dissolution, she had a weekly income,
not including pendente lite alimony, of $324 in social
security disability payments and rental income, and she
had weekly expenses totaling $795. Her assets included
a bank account with a balance of $2527, a life insurance
policy with a cash surrender value of $4449.94, a 401
(k) plan with a value of $31,203 and another worth
$2211.20. She also had $6000 in liabilities, not including
legal fees owed to trial counsel.

Born in 1955, the defendant was, on the date of dissolution,
employed by Sycamore Networks, Inc., and had
a net weekly income of $1308, assets of approximately
$689,000 and liabilities of approximately $54,000. His
assets included his vested interest in 66,176 shares of
Sycamore Networks, Inc., stock and options to purchase
an additional 6000 shares.

In its judgment dissolving the parties' marriage, the
court made numerous findings, including a determination
that the parties had separated on December 1, 2000,
and that the parties shared equal culpability for the
breakdown of the marriage. The court ordered the
defendant to pay to the plaintiff $300 per week in alimony,
and the court divided the 66,176 shares of Sycamore
Networks, Inc., stock equally between the parties,
leaving the stock options solely in the defendant's name.
This appeal followed.

I

The defendant first claims that the court incorrectly
found that the parties were equally at fault for the breakdown
of the marriage. We decline to review his claim.
To respond to the defendant's claim, we are required
to determine whether there was a basis from which the
trial court could have found that the parties were
equally at fault for the breakdown of the marriage. See
Jewett v. Jewett, 265 Conn. 669, 691, 830 A.2d 193 (2003).
The defendant, however, has failed to provide this court
with a complete transcript of the trial proceedings.
Additionally, the trial court was not asked to articulate
its finding in this regard. In light of the inadequate
record, we are not able to assess the defendant's claim.

It is well established that ‘‘[i]t is the responsibility of
the appellant to provide an adequate record for review
as provided in [Practice Book §] 61-10. . . . Conclusions
of the trial court cannot be reviewed where the
appellant fails to establish through an adequate record
that the trial court incorrectly applied the law or could
not reasonably have concluded as it did . . . .'' (Citations
omitted; internal quotation marks omitted.) Brad-
ley v. Randall, 63 Conn. App. 92, 95–96, 772 A.2d 722
(2001).

In its memorandum of decision, the court did not
elucidate its reasoning or the basis for its determination
that the parties were equally at fault for the breakdown
of the marriage. Furthermore, as noted, the defendant
has provided this court only with excerpts of his trial
testimony and not the complete trial transcript.

‘‘[B]ecause the defendant failed to present an adequate
record for review, [w]e . . . are left to surmise or speculate
as to the existence of a factual predicate for the
trial court's rulings. Our role is not to guess at possibilities,
but to review claims based on a complete factual
record developed by the trial court. . . . Without the
necessary factual and legal conclusions furnished by
the trial court, either on its own or in response to a
proper motion for articulation, any decision made by
us respecting this claim would be entirely speculative.''
(Internal quotation marks omitted.) Knutson Mortgage
Corp. v. Bernier, 67 Conn. App. 768, 773, 789 A.2d 528
(2002). Accordingly, we decline to review the defendant's
claim.1

II

The defendant next claims that the court abused its
discretion in awarding the plaintiff $300 per week in
alimony. Specifically, he argues that the court failed
to consider that he had provided the plaintiff with a
mortgage free residence that had a monthly rental value
of approximately $1800. We disagree.

The following additional facts are relevant to our
discussion of that issue. On September 15, 2000, the
court approved a stipulation by the parties that the
plaintiff would vacate the marital residence and that
the defendant, in turn, would deposit $250,000 in trust
for the plaintiff to purchase a new home. To secure the
funds needed to effectuate the agreement, the defendant
sold several shares of stock held in his name.

Pursuant to the parties' agreement, the plaintiff vacated
the marital residence on December 1, 2000, in conjunction
with her purchase of a residence for $192,000 on
Green Hill Road in Middlebury. The balance of the
$250,000 was utilized for the payment of taxes and
homeowner's insurance for the plaintiff's new residence.
As stipulated, the parties considered that residence
to be marital property subject to equitable
distribution by the court in conjunction with the parties'
marital dissolution.

Pursuant to the judgment orders of December 6, 2002,
the plaintiff was awarded the residence on Green Hill
Road, and the defendant retained the residence at Burr
Road in the Higganum section of Haddam. As noted,
the court ordered the defendant to pay the plaintiff $300
per week in alimony. In making its alimony order, the
court rejected the defendant's argument that the
amount of alimony ordered should be reduced due to
the fact that he had provided the funds for a new mortgage
free residence for the plaintiff and that the plaintiff's
residence allegedly had a fair market rental value
of approximately $1800 per month.

‘‘The standard of review in family matters is that this
court will not disturb the trial court's orders unless it
has abused its legal discretion or its findings have no
reasonable basis in fact. . . . It is within the province
of the trial court to find facts and draw proper inferences
from the evidence presented. . . . [E]very reasonable
presumption will be given in favor of the trial
court's ruling, and [n]othing short of a conviction that
the action of the trial court is one which discloses a
clear abuse of discretion can warrant our interference.
. . . In determining whether there has been an abuse
of discretion, the ultimate issue is whether the court
could reasonably conclude as it did. . . . Accordingly,
it is only in rare instances that the court's decision will
be disturbed.'' (Citations omitted; internal quotation
marks omitted.) Rosato v. Rosato, 77 Conn. App. 9, 13,
822 A.2d 974 (2003).

Our careful review of the record leads us to conclude
that the court did not abuse its discretion in its alimony
order. In its memorandum of decision, the court noted
that in fashioning its alimony order, it reviewed the
statutory guidelines as established by General Statutes
§ 46b-82.2 Additionally, the court noted that it had examined
thoroughly the parties' financial situation, the
length of the marriage, the health of the parties and the
cause for the breakdown of the marriage. From the
record, we note, as well, that the financial affidavits
filed by the parties plainly reveal that the plaintiff had
significantly fewer assets and less income and earning
capacity than did the defendant. Furthermore, as noted
by the court at the time of the martial dissolution hearing,
the plaintiff was receiving social security disability
income and was confined to a wheelchair as a result
of her debilitating illness, and she required assistance
to carry out her routine daily activities. Finally, whether
or not the plaintiff's residence had a monthly rental
value and required no mortgage payments by the plaintiff,
her affidavit clearly showed that she operated with
a monthly budget deficit. Consequently, the court's alimony
order was not an abuse of discretion.

III

The defendant last claims that the court improperly
awarded the plaintiff one half of the 66,176 shares of
Sycamore Networks, Inc., stock that was held solely in
his name. We disagree.

The following additional facts are relevant to our
discussion of that issue. In July, 1999, the defendant
was affiliated with Sirocco Systems as an independent
contractor. While an independent contractor, he pur-
chased 15,000 shares of Sirocco stock under its stock
option plan. On November 1, 1999, as an incentive and
in conjunction with the defendant becoming an
employee of Sirocco, he was given an option, which he
exercised, to purchase 55,000 shares of company stock,
subject to a restriction that he would be required to
sell that stock back to the company should he leave its
employment within a stated time frame. Subsequently,
on September 7, 2000, Sirocco merged with Sycamore
Networks, Inc. As of the merger date, the defendant
had an interest in 116,250 shares of Sirocco stock, some
of which he owned outright and the balance of which
were subject to the restriction regarding his continuing
employment. As a result of the merger, his interest in
Sirocco stock converted to approximately 79,850 shares
of Sycamore Networks, Inc., stock, 28,336 of which
were subject to the employment resale restriction. The
defendant's interest in those once restricted shares,
however, became vested over the next two years so
that by October, 2002, the defendant's stock holdings
in Sycamore Networks, Inc., were fully unrestricted. As
of the date of dissolution, the defendant owned 66,176
shares of Sycamore Networks, Inc., stock outright.

Additionally, he held options to purchase an additional
6000 shares through an offering made to him by the
company in April, 2001. The court divided the defendant's
stock equally between the parties while permitting
the defendant to retain sole ownership of the
options that he had received in April, 2001, and had not
yet exercised. With those additional facts as a backdrop,
we now turn to the defendant's claim regarding the
division of stock.

‘‘As a general framework, [t]here are three stages of
analysis regarding the equitable distribution of each
resource: first, whether the resource is property within
[General Statutes] § 46b-81 to be equitably distributed
(classification); second, what is the appropriate method
for determining the value of the property (valuation);
and third, what is the most equitable distribution of the
property between the parties (distribution).'' (Internal
quotation marks omitted.) Bender v. Bender, 258 Conn.
733, 740, 785 A.2d 197 (2001). As noted, we review the
court's financial orders under an abuse of discretion
standard. See Rosato v. Rosato, supra, 77 Conn. App. 13.
On appeal, the defendant does not dispute that the
66,176 shares of stock were marital property subject
to distribution under § 46b-81. Rather, he argues that
because a majority of the shares became fully vested
in him after the parties separated, the court abused its
discretion in awarding the plaintiff one half of the stock.
He reasons that because the plaintiff did not contribute
to his acquisition of that stock or to its appreciation
after their separation, it was improper for the court to
have assigned a portion of those postseparation assets
to the plaintiff.3 We are not persuaded.

The defendant premises his argument on the notion
that a court does not have the authority to assign property
acquired by either party after separation or any
part of the postseparation appreciation of an asset. Specifically,
he claims that in Wendt v. Wendt, 59 Conn.
App. 656, 665, 757 A.2d 1225, cert. denied, 255 Conn.
918, 763 A.2d 1044 (2000), we established a rule that a
spouse is not entitled to share in assets or the appreciation
of those assets that are received or earned after
the date of separation. The defendant misconstrues
Wendt. In that case, we found that the court did not
abuse its discretion in declining to award the plaintiff
the appreciated value in the defendant's property that
was acquired after the parties' separation, but we did
not determine the inverse, i.e., that it would have been
an abuse of discretion for the court to have done so. Id.
Indeed, in Wendt, we reiterated the general proposition
that a trial court has ‘‘extensive discretion regarding
financial awards in dissolution actions''; id.; and that
‘‘no single rule or formula is applicable to every dissolution
case involving employee stock options.'' (Internal
quotation marks omitted.) Id., 667.

In the present case, the court thoroughly examined
each criterion set forth in § 46b-81 (c) in awarding the
plaintiff one half of the defendant's Sycamore Networks,
Inc., stock. Although the trial court in Wendt
afforded great weight to one of the criteria, the spouse's
contribution to the acquisition and appreciation of an
asset, the court in this case was not required to afford
the same weight to that factor. See id.; Parley v. Parley,
72 Conn. App. 742, 752, 807 A.2d 982 (2002) (court need
not give equal weight to each statutory factor). Under
the facts of this case and for the reasons noted in part
II, the stock disposition made by the court was well
within the parameters of its discretion.4 Accordingly
the defendant's claim must fail.5