Karen B. Shaulson v. David A. Shaulson

The defendant, David A. Shaulson, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Karen B. Shaulson, and entering related financial orders. On appeal, the defendant claims that the court (1) improperly found that he had dissipated marital assets, (2) abused its discretion in finding that a life insurance trust did not exist but, nevertheless, awarding him the cash value of the policy as part of his share of the marital assets and (3) improperly ordered him to pay certain monthly amounts of unallocated alimony and child support.1 We disagree and, accordingly, affirm the judgment of the trial court.

The plaintiff commenced this marital dissolution action against the defendant in November, 2005.

Although the parties reached an agreement regarding the custody and parenting of their four young daughters, they were unable to agree on financial matters. Following a trial on the financial issues, the court, on May 12, 2008, rendered an oral decision dissolving the parties' marriage, incorporating into the judgment of dissolution the parties' custody agreement and making certain financial orders. The court found that the plaintiff had not been employed outside the home since the birth of the parties' children, and, thus, the defendant was the sole wage earner for the family. The court further found that the defendant had dissipated large sums of the parties' savings in violation of the automatic court orders,2 and, consequently, the court ''charged all [of] that inappropriate spending to [the defendant's] portion of the divided assets.'' The court also ordered, inter alia, the defendant to pay to the plaintiff $40,000 per month in unallocated alimony and child support as well as 25 percent of the defendant's gross income over $1 million. The court awarded the plaintiff the marital home and two adjacent lots owned by the parties. Although the court determined that there was no life insurance trust, the court awarded the cash value of the subject policies to the defendant.

On May 22, 2008, the defendant filed a motion to reargue, which the court denied. Also on that date, the court filed a ''clarified and corrected memorandum of decision,'' making minor clarifications, alterations and additions with respect to its May 12, 2008 decision.3 On May 30, 2008, the defendant timely appealed from the judgment of dissolution.

On July 8, 2008, the court held a hearing regarding certain postjudgment motions filed by the parties. At the commencement of the hearing, the court, sua sponte, issued an oral ''clarified and articulated decision'' with respect to its May 12, 2008, alimony and child support order, explaining that it did not believe that this was a child support guidelines case because the presumptive amount of support required under the guidelines would be ''grossly inappropriate'' given the defendant's income. On July 25, 2008, the defendant filed an amended appeal to include this ruling.

Subsequently, the defendant filed a motion for articulation, which the court denied on October 1, 2008. The defendant filed a motion for review of that denial, which this court granted, in part, and ordered the trial court to articulate (1) whether it based its unallocated award of alimony and child support on the defendant's actual earned income or on his earning capacity; (2) what it determined the defendant's actual earned income or earning capacity, whichever was applicable, to be; (3) whether its determination of actual earned income or of earning capacity was based on gross or net earnings; (4) what it found the cash value of the alleged life insurance trust to be when it awarded that cash value to the defendant; and (5) what it found the value of the marital home and the adjacent two lots to be.4

In response, on February 11, 2009, the trial court filed its articulation in which it indicated that it had based its financial orders on the defendant's earning capacity, which it determined to be $900,000 per year, based on an average of recent years' earnings. The court further articulated that it had found the cash value of the ''alleged life insurance trust'' to be $650,000. The court also stated that it had determined the fair market value of the marital home to be $820,000, with an outstanding mortgage of $478,587, leaving equity of $341,413, and the combined value of the two adjacent lots to be $200,000.

On February 23, 2009, the defendant filed a motion for further articulation asking the trial court to indicate what it had determined the defendant's net income to be in 2007, upon which it had based its financial order.

The trial court denied the defendant's motion, and the defendant filed a motion for review, which this court granted. On July 2, 2009, the court further articulated its decision, stating that it had based the financial orders on the defendant's earning capacity of $900,000, which would make his net income approximately $540,000. In explaining how it reached the determination of that net income, the court went on to explain the calculations that it made with regard to the defendant's tax liabilities as well as the plaintiff's receipt of the unallocated alimony and child support and the resulting tax ramifications.

The court also explained the calculations that it had made in modifying the unallocated award of alimony and child support to $30,000 per month. Additional facts will be set forth as necessary.

We begin by setting forth our general standard of review in an appeal challenging the financial orders made in a dissolution of marriage judgment. ''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 . . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.'' (Citations omitted; internal quotation marks omitted.) Maturo v. Maturo, 296 Conn. 80, 87–88, 995 A.2d 1 (2010). With these principles in mind, we turn to the defendant's claims on appeal.

I

The defendant first claims that the court improperly concluded that he had dissipated marital assets in violation of the automatic orders by spending $150,000 to furnish his new home and that the court improperly charged the alleged dissipation against his share of the marital assets.5 We disagree.

Our review of this claim is guided, as the defendant suggests, by Gershman v. Gershman, 286 Conn. 341, 943 A.2d 1091 (2008). In Gershman, our Supreme Court was faced with the question of ''what, as a matter of law, constitutes dissipation in the context of a marital dissolution proceeding.'' Id., 346. The court concluded: ''[A]t a minimum, dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.'' Id., 351.

The defendant invites this court to conclude, as a matter of law, that expenditures for the purpose of furnishing a new home, especially a home at which the parties' children spend a significant amount of time, cannot amount to the dissipation of assets. We decline, however, to make such a determination. We conclude that such an expenditure may or may not constitute dissipation, depending upon the circumstances of the case.

Here, the court's comments about the expenditure of $150,000 for furnishing a new home must fairly be read in the context of its response to the defendant's spending habits in general while this matter was pending. 6 In that regard, the court found that the defendant had expended no less than $250,000, and possibly as high as $485,000, for trips, gifts to his fiance as well as household furnishings. The record demonstrates that the court specifically found that the defendant's expenditure of $150,000 to furnish his new house was excessive and not in accordance with his previously ''minimalist'' furnishings.7 The court further found that there was no justification for the $150,000 in expenditures and that it was detrimental to the family. In response, the defendant argues that his expenditure of $150,000 was justified because he needed to provide a suitable household for his children, who spend 40 percent of their time with him. We are unconvinced by the defendant's argument. Rather, we conclude that the court properly determined that spending $150,000 to furnish the defendant's new home constituted dissipation of the marital assets under the circumstances confronted by the court. Because ''Connecticut trial courts have the statutory authority, under [General Statutes] § 46b-81, to consider a spouse's dissipation of marital assets when determining the nature and value of property to be assigned to each respective spouse'';8 Finan v. Finan, 287 Conn. 491, 500–501, 949 A.2d 468 (2008); we conclude that the court's order in this regard was not improper.

II

The defendant next claims that the court improperly found that an irrevocable life insurance trust did not exist but, nevertheless, awarded the cash value of the policies alleged by the defendant to have been held in that trust to the defendant as part of its distribution of marital assets. In considering this issue, the court discredited the defendant's testimony that such a trust existed but credited his testimony that the cash value of the policies was $650,000 and awarded that amount to the defendant. In assessing this claim we are mindful of the well trodden notion that the trial court is the ''sole arbiter of credibility, [and it is] free to accept or reject, in whole or in part, the testimony offered by either party.'' (Internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 357, 999 A.2d 713 (2010). Here, the court found on the basis of evidence it credited that the subject life insurance policies, though not part of a trust, nevertheless had a certain cash value. The court, therefore, did not abuse its discretion in awarding the cash value of the policies to the defendant as part of his share of the marital assets. Accordingly, the defendant's claim fails.

III

The defendant finally claims that the court improperly ordered him to pay to the plaintiff $40,000 per month, subsequently modified to $30,000, as unallocated alimony and child support. The defendant's claim in this regard is twofold. He claims that the court (1) improperly waived the child support guidelines, did not expressly deviate from the guidelines and failed to make the statutorily required findings for deviating from the guidelines and (2) abused its discretion in awarding those specific amounts because they were inequitable in light of its other orders dividing the marital assets. In response, the plaintiff argues, inter alia, that the defendant's failure to file a child support guidelines worksheet with the court should preclude him from complaining that the court failed to adhere to the guidelines.

''In Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731 (1994), our Supreme Court stressed adherence by the trial court to observe the procedures set out in the child support guidelines to facilitate appellate review. Recently, in Bee v. Bee, 79 Conn. App. 783, 787–88, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003), we concluded that a party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines and that we will not review such a claim. Kunajukr v. Kunajukr, 83 Conn. App. 478, 485, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004).'' (Internal quotation marks omitted.) Gentile v. Carneiro, 107 Conn. App. 630, 655, 946 A.2d 871 (2008).

Our review of the record reveals, and the defendant acknowledges, that he did not file a child support guidelines worksheet. Indeed, the court's stated reason for basing its orders on the defendant's earning capacity rather than his actual earnings was that the defendant was less than forthcoming about his financial situation. Because the defendant failed to supply the court with the required information for a guideline based order of child support, he cannot now complain that it does not comply with the guidelines or that the court improperly failed to make an independent determination of the guideline indicated child support applicable to the parties' incomes. Accordingly, we decline to review his claim.

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See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP125/125AP119.pdf