Reville v. Reville

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 CATHERINE REVILLE v. JOHN REVILLE
(SC 18452)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and McDonald, Js.*
Argued February 19, 2013—officially released July 8, 2014

Steven D. Ecker, with whom was M. Caitlin S. Ander-
son, for the appellant (plaintiff).
Samuel V. Schoonmaker IV, with whom were Allen
Gary Palmer and, on the brief, Wendy Dunne DiChris-
tina and Anthony L. Cenatiempo, for the appellee
(defendant).
 Opinion

ROGERS, C. J. This case concerns a spouse’s duty
to disclose an accrued but unvested pension during
dissolution proceedings. The plaintiff, Catherine
Reville, appeals1 from the judgment of the trial court
denying her motion to open a 2001 judgment dissolving
her marriage to the defendant, John Reville, on the
basis of fraud. The plaintiff alleged that the defendant
committed fraud during predissolution settlement nego-
tiations by failing to disclose an accrued but unvested
pension benefit, either on his financial affidavits or oth-
erwise. After finding, inter alia, that the defendant had
disclosed the existence of the pension to the plaintiff
orally, both during the parties’ marriage and during
settlement negotiations, the trial court denied the plain-
tiff’s motion to open. The plaintiff claims on appeal that
the trial court improperly: (1) held that the pension, at
the time the parties’ marriage was dissolved, definitively
was not ‘‘property’’ subject to equitable distribution
pursuant to General Statutes (Rev. to 2001) § 46b-81;2
(2) refused to consider evidence of the pension’s value,
which undercut the court’s findings regarding disclo-
sure; and (3) required the plaintiff to bear the burden
of proving fraud under the circumstances. We agree
with the plaintiff’s first two claims and, accordingly,
reverse the judgment of the trial court.
The following facts, which either are undisputed or
were found by the trial court, and procedural history
are relevant to the appeal. On May 25, 2001, the trial
court, Hon. Dennis F. Harrigan, judge trial referee,
rendered judgment dissolving the parties’ fourteen year
marriage, and it incorporated into the judgment orders
of alimony, child support and an equitable distribution
of the marital property consistent with the parties’ writ-
ten separation agreement. Pursuant to that agreement,
the parties had endeavored to split their assets equally.
The plaintiff filed an amended postjudgment motion
to open and set aside the dissolution judgment, dated
September 15, 2005, claiming that the court should
revisit the issue of property distribution because the
defendant, a partner with PricewaterhouseCoopers
LLP, had failed to disclose on all four of his financial
affidavits the existence of an accrued but unvested pen-
sion (pension).3 The plaintiff claimed further that she
had relied on those affidavits and the representations
contained therein as to the extent and scope of the
defendant’s assets, and that the pension that he had
failed to disclose had a substantial value, likely in
excess of $2 million. According to the plaintiff, had she
known of the existence of the pension, she would not
have entered into the separation agreement as it was
written because it made no provision for her to receive
an interest in the pension or some other compensation
for waiving her right to such an interest. The plaintiff
contended that interests in unvested pensions were,
around the time of the parties’ divorce, ‘‘property or
assets’’ required to be disclosed on financial affidavits
in dissolution actions and subject to distribution pursu-
ant to § 46b-81. By her motion to open, the plaintiff also
sought to enforce a penalty provision in the parties’
separation agreement, which provided for a forfeiture
of intentionally concealed property interests.
The trial court, Shay, J.,4 decided, sua sponte, to
bifurcate the proceedings on the plaintiff’s motion to
open the judgment into two phases. In the first phase,
the court endeavored to determine whether, pursuant
to § 46b-81, the pension was marital property at the
time of the dissolution. In the event that the pension
was determined to be property, a second phase would
be held to determine whether the defendant had failed
to disclose it, whether any such nondisclosure was
fraudulent and whether nondisclosure would have
altered the underlying judgment.5
During the first phase of the proceedings on the plain-
tiff’s motion to open, the trial court heard testimony
about the pension from the defendant and William
Miller, an actuarial and pension expert retained by the
plaintiff. The deposition of Roger Hindman, a partner
in PricewaterhouseCoopers LLP, who oversaw benefit
programs nationally for staff and partners of that firm,
was read into the record. The evidence presented estab-
lished the existence and nature of the pension generally,
and the defendant’s specific interest therein.
At the time of the dissolution judgment, the defendant
was forty-five years old and had been employed by
PricewaterhouseCoopers LLP, or one if its predeces-
sors, for approximately twenty years, and he had been
a partner in the firm for nearly one decade.6 When the
defendant became a partner, he was informed of the
benefits associated with that position, which included
the pension at issue among several other retirement
savings vehicles.
The trial court found that the pension is unqualified,
in the sense that it is not covered by the Employment
Retirement Income Security Act of 1974, 29 U.S.C.
§ 1001 et seq. It is not funded on an ongoing basis by
contributions to a trust fund, but rather, is paid out of
the firm’s current profits at the time it is due to eligible
retirees. Moreover, although benefits accrue during an
individual’s term of employment, they do not immedi-
ately vest. Normal retirement age at Pricewaterhouse-
Coopers LLP, is age sixty but, under the terms of the
pension, a partner is eligible for a reduced benefit at
age fifty with twenty years of service or a full benefit
at age fifty-five. At the time of the dissolution judgment,
the defendant’s pension was unvested, but it became
partially vested five years later in 2006, and fully vested
by 2010. The terms of the pension are subject to change
and were modified somewhat during the 1998 merger;
see footnote 6 of this opinion; but pursuant to the post-
merger partnership agreement, preexisting partners’
benefits, including the defendant’s pension, were pro-
tected. The pension benefit is calculated using a formula
that takes into account a partner’s years of service and
a figure representing 30 percent of the average pay in
his or her five highest earning years, but it is subject
to a cap pursuant to which total pension payments to
retired partners cannot exceed 15 percent of the firm’s
current profits. In addition, the pension is subject to
forfeiture if a retired partner violates certain conditions
such as a noncompete requirement. The defendant testi-
fied that he was unaware of any retired partner not
receiving the pension benefit, provided he or she com-
plied with those conditions.
Although all partners were aware of the pension and
its basic terms, there was no written document memori-
alizing those terms until April, 2003. In April, 2000, how-
ever, a personalized, electronic projection report was
made available to each partner, including the defendant,
through his or her work computer. That report esti-
mated the present and future values of the available
benefit plans, including the pension, by employing cer-
tain assumptions as to the rate of return, life expectancy
and earnings growth. If a partner chose, he or she could
enter alternative assumptions and change the projec-
tions. Employing the default assumptions, which
included a retirement age of sixty, the projection report,
as of December 31, 1999, estimated the present value
of the defendant’s projected retirement income stream
to be $3,839,117.
After the first phase of the proceedings, the trial court
made findings that included the foregoing facts and
concluded that, in May, 2001, at the time of the decree
dissolving the parties’ marriage, the defendant’s pen-
sion was not property subject to distribution pursuant
to § 46b-81. In so concluding, the court reasoned that
this court’s decision in Bender v. Bender, 258 Conn. 733,
785 A.2d 197 (2001), which held that a party’s unvested
pension benefits were distributable marital property
pursuant to § 46b-81, was inapplicable to the analysis
here because that decision postdated the dissolution
judgment in this case by several months. Moreover,
according to the trial court, the pension unquestionably
was not property under the law in effect prior to Bender.
The trial court held, nevertheless, that the defendant
should have disclosed the pension on his financial affi-
davits because nondisclosure prevented Judge Harrigan
from performing his duty, mandated by General Stat-
utes § 46b-66,7 to find the parties’ settlement agreement
fair and equitable under the circumstances, and/or from
giving consideration to the pension when fashioning
his award of alimony. See General Statutes (Rev. to
2001) § 46b-82.8
The trial court then proceeded to the second phase
of the proceedings on the motion to open the judgment.
During that phase, the trial court ruled that, in light
of its earlier determination that the pension was not
property, any evidence as to its value was not relevant
or material. Accordingly, the trial court refused to admit
such evidence when it was offered by the plaintiff.
During the second phase, there was substantial testi-
mony from both parties as well as individuals who had
represented or assisted them during the dissolution pro-
ceedings. The plaintiff testified that she was unaware
of the pension during the parties’ marriage, and further,
that it was not disclosed to her during the extensive
settlement negotiations attendant to the dissolution
proceedings. The plaintiff’s counsel during the dissolu-
tion proceedings, Anthony Piazza, confirmed the plain-
tiff’s account of nondisclosure. The plaintiff’s expert
witness, Mark Harrison, an attorney and a certified pub-
lic accountant, was familiar with the pension, but could
not recall whether he had heard about it during the
parties’ case or when he was engaged in a different,
later dissolution action involving another Pricewater-
houseCoopers LLP partner.
The defendant testified that he and the plaintiff had
discussed the pension during their marriage, and that
he and his counsel disclosed the pension to the plaintiff
and her representatives several times during settlement
negotiations. According to the defendant, prior to the
dissolution judgment, he had not accessed the April,
2000 electronic projection report made available to him
at work that predicted the value of the pension based
on certain assumptions. The defendant testified further
that he was aware of the pension, but made an affirma-
tive decision not to list it on his financial affidavit after
discussing the matter with his counsel, because he did
not believe it was an asset. The defendant’s counsel at
the dissolution proceedings, Christopher Burdett, con-
firmed the defendant’s account in regard to disclosure
of the pension during negotiations and the decision to
omit it from the affidavit. Anthony Artabane, a colleague
of the defendant’s who was present at the settlement
negotiations,9 also testified that the pension had been
discussed with the plaintiff.
Although the settlement negotiations preceding the
dissolution of the parties’ marriage had lasted sixteen
months and produced more than twenty drafts of their
settlement agreement, the defendant did not produce
any written or documentary evidence demonstrating
disclosure of the pension to the plaintiff. Additionally,
Burdett did not have any notes or records indicating
that the pension had been discussed orally with the
plaintiff or her representatives.
After considering the conflicting testimony, the trial
court found that the defendant’s version of events was
more credible than the plaintiff’s version. The court
found it implausible that the pension had not been dis-
cussed during the parties’ marriage, and concluded that
the plaintiff ‘‘knew about the [pension] at the time of
the dissolution of [the] marriage in 2001, and that she
now wishes to change the bargain she reached with the
advice of counsel and her expert.’’ According to the
court, although the defendant did not disclose the pen-
sion on his financial affidavits, he did so during settle-
ment negotiations, and the plaintiff and her counsel
knew about it. The court held, therefore, that the plain-
tiff had not proven her claim of fraud.
The trial court reiterated its view that, although the
pension did not qualify as distributable property, the
defendant still should have disclosed it on his affidavit
to enable Judge Harrigan, the dissolution court, to deter-
mine whether the settlement was fair and equitable. It
concluded, however, that the defendant’s nondisclosure
to the court ‘‘was not fraudulent, and in any event,
would not likely have changed the outcome of the
court’s finding of fairness or produced a different
result.’’ Consequently, the trial court denied the plain-
tiff’s amended motion to open the judgment.10 This
appeal followed.
The plaintiff claims that the trial court improperly
concluded that, in May, 2001, the defendant’s pension
was not property within the meaning of § 46b-81 that
he was required to disclose on his financial affidavit.
She contends further that the court improperly
excluded, or failed to consider, evidence of the pen-
sion’s value during the second phase of the proceedings
on the motion on the basis that such evidence was
irrelevant because the pension was not property, and
that these improper rulings tainted the court’s findings
as to disclosure. Finally, the plaintiff claims that the
trial court should not have placed the burden of proving
fraud on her under the particular circumstances of the
case, namely, when the defendant has failed to disclose
a substantial asset on his financial affidavits during a
dissolution proceeding.
The defendant contends in response that the trial
court correctly concluded that the pension was not
distributable property. He argues additionally that the
court properly denied the plaintiff’s motion to open the
judgment because the plaintiff failed to prove fraud.
According to the defendant, the court’s finding that the
pension was disclosed orally to the plaintiff is supported
by the testimonial evidence and was fatal to the plain-
tiff’s motion. The defendant claims further that,
although the pension’s value was irrelevant, there nev-
ertheless was evidence in this regard before the court.
Finally, the defendant contends, the court’s allocation
of the burden of proof was not in error.
We begin with the general standard of review and an
overview of the legal framework that governed the trial
court proceedings. ‘‘Our review of a court’s denial of a
motion to open [based on fraud] is well settled. We do
not undertake a plenary review of the merits of a deci-
sion of the trial court to grant or to deny a motion to
open a judgment. . . . In an appeal from a denial of a
motion to open a judgment, our review is limited to the
issue of whether the trial court has acted unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did.’’ (Internal quota-
tion marks omitted.) Weinstein v. Weinstein, 275 Conn.
671, 685, 882 A.2d 53 (2005).
Pursuant to General Statutes § 52-212a, ‘‘a civil judg-
ment or decree rendered in the Superior Court may not
be opened or set aside unless a motion to open or set
aside is filed within four months following the date on
which it was rendered or passed. . . .’’ An exception
to the four month limitation applies, however, if a party
can show, inter alia, that the judgment was obtained
by fraud. See Weiss v. Weiss, 297 Conn. 446, 455, 998
A.2d 766 (2010).
‘‘Fraud consists in deception practiced in order to
induce another to part with property or surrender some
legal right, and which accomplishes the end designed.
. . . The elements of a fraud action are: (1) a false
representation was made as a statement of fact; (2) the
statement was untrue and known to be so by its maker;
(3) the statement was made with the intent of inducing
reliance thereon; and (4) the other party relied on the
statement to his detriment. . . . A marital judgment
based upon a stipulation may be opened if the stipula-
tion, and thus the judgment, was obtained by fraud.’’
(Internal quotation marks omitted.) Weinstein v.
Weinstein, supra, 275 Conn. 685.
‘‘Fraud by nondisclosure, which expands on the first
three of [the] four elements [of fraud], involves the
failure to make a full and fair disclosure of known
facts connected with a matter about which a party has
assumed to speak, under circumstances in which there
is a duty to speak. . . . A lack of full and fair disclosure
of such facts must be accompanied by an intent or
expectation that the other party will make or will con-
tinue in a mistake, in order to induce that other party
to act to her detriment. . . . In a marital dissolution
case, the requirement of a duty to speak is imposed by
Practice Book § [25-30], requiring the exchange and
filing of financial affidavits . . . and by the nature of
the marital relationship.’’ (Citations omitted.) Gelinas
v. Gelinas, 10 Conn. App. 167, 173, 522 A.2d 295, cert.
denied, 204 Conn. 802, 525 A.2d 965 (1987), overruled
on other grounds by Billington v. Billington, 220 Conn.
212, 595 A.2d 1377 (1991).
‘‘There are three limitations on a court’s ability to
grant relief from a dissolution judgment secured by
fraud: (1) there must have been no laches or unreason-
able delay by the injured party after the fraud was
discovered; (2) there must be clear proof of the fraud;
and (3) there is a [reasonable probability]11 that the
result of the new trial will be different.’’ (Footnote
added; internal quotation marks omitted.) Weinstein v.
Weinstein, supra, 275 Conn. 685.
‘‘To determine whether there [is] proof of fraud, [a
court should] consider the evidence through the lens
of our well settled policy regarding full and frank disclo-
sure in marital dissolution actions. Our [rules of prac-
tice have] long required that at the time a dissolution
of marriage, legal separation or annulment action is
claimed for a hearing, the moving party shall file a
sworn statement . . . of current income, expenses,
assets and liabilities, and pertinent records of employ-
ment, gross earnings, gross wages and all other income.
. . . The opposing party is required to file a similar
affidavit at least three days before the date of the hear-
ing . . . .
‘‘Our cases have uniformly emphasized the need for
full and frank disclosure in that affidavit. A court is
entitled to rely upon the truth and accuracy of sworn
statements required by . . . the [rules of practice], and
a misrepresentation of assets and income is a serious
and intolerable dereliction on the part of the affiant
which goes to the very heart of the judicial proceeding.
. . . These sworn statements have great significance
in domestic disputes in that they serve to facilitate the
process and avoid the necessity of testimony in public
by persons still married to each other regarding the
circumstances of their formerly private existence. . . .
‘‘Moreover, in Monroe v. Monroe, [177 Conn. 173, 182,
413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct.
20, 62 L. Ed. 2d 14 (1979)], we referred to the require-
ment of full and frank disclosure between attorney and
marital client. [L]awyers who represent clients in matri-
monial dissolutions have a special responsibility for full
and fair disclosure, for a searching dialogue, about all
of the facts that materially affect the client’s rights and
interests. Id., 183. In Baker v. Baker, 187 Conn. 315,
322, 445 A.2d 912 (1982), we imposed this requirement
of honest disclosure between the litigating parties and
the court. It is a logical extension of those precedents
to require such full and frank disclosure as well between
the marital litigants themselves. . . .
‘‘We have recognized, furthermore, in the context of
an action based on fraud, that the special relationship
between fiduciary and beneficiary compels full disclo-
sure by the fiduciary. . . . Although marital parties are
not necessarily in the relationship of fiduciary to benefi-
ciary, we believe that no less disclosure is required
of such parties when they come to court seeking to
terminate their marriage.
‘‘Finally, the principle of full and frank disclosure
. . . is essential to our strong policy that the private
settlement of the financial affairs of estranged marital
partners is a goal that courts should support rather
than undermine. . . . That goal requires, in turn, that
reasonable settlements have been knowingly agreed
upon. . . . Our support of that goal will be effective
only if we instill confidence in marital litigants that we
require, as a concomitant of the settlement process,
such full and frank disclosure from both sides, for then
they will be more willing to [forgo] their combat and
to settle their dispute privately, secure in the knowledge
that they have all the essential information. . . . This
principle will, in turn, decrease the need for extensive
discovery, and will thereby help to preserve a greater
measure of the often sorely tried marital assets for
the support of all of the family members.’’ (Internal
quotation marks omitted.) Weinstein v. Weinstein,
supra, 275 Conn. 686–87.
We now turn to the plaintiff’s claims. Additional facts
and procedural history will be provided when nec-
essary.
I
The plaintiff claims first that the trial court improp-
erly held that the defendant’s pension, at the time of
the May, 2001 dissolution judgment, was not property
subject to distribution under § 46b-81. She contends
that the trial court should have held to the contrary by
applying this court’s decision in Bender v. Bender,
supra, 258 Conn. 736, which established that unvested
pension benefits were distributable property, but
improperly chose instead to provide an unwarranted
critique of the majority opinion in that case and to
follow the dissenting opinion. According to the plaintiff,
the trial court should have applied this court’s holding
in Bender retroactively because in May, 2001, it was a
foreseeable decision that affirmed an already existing,
consistent opinion of the Appellate Court and predict-
ably built upon prior case law. In any event, the plaintiff
claims, the real question before the trial court was not
whether Bender ought to apply retroactively, but
whether the defendant violated his fundamental obliga-
tion of full and frank disclosure, and the court’s inordi-
nate focus on Bender ‘‘established a deeply flawed
framework for the ultimate resolution of this case.’’ She
contends that, because the trial court analyzed her fraud
claim using a flawed legal framework, its factual find-
ings also are faulty.
The defendant contends in response that the trial
court correctly held that an unvested pension was not
distributable property prior to this court’s decision in
Bender. According to the defendant, the Appellate
Court’s decision in that case, Bender v. Bender, 60 Conn.
App. 252, 758 A.2d 890 (2000), aff’d, 258 Conn. 733, 785
A.2d 197 (2001), which predated the dissolution of the
parties’ marriage, did not address the issue, and this
court’s subsequent decision represented a substantial
and unexpected change in our equitable distribution
jurisprudence that should not apply retroactively to
May, 2001.
Although we disagree that our decision in Bender
effected a substantial and surprising change to the law
of marital property distribution, we nevertheless agree
with the defendant that the decision does not apply
retroactively to cases that were not pending at the time
the decision was rendered. We disagree, however, with
the trial court’s determination that the law preexisting
Bender established definitively that the defendant’s
pension was not distributable marital property in May,
2001, and that Bender represented a sharp departure
from, rather than a progressive outgrowth of, our preex-
isting jurisprudence. In short, at the time of the parties’
divorce, the proper treatment of unvested pensions in
dissolution actions was an unsettled issue in Connecti-
cut. More fundamentally, however, we disagree with
the trial court’s view that the question of whether the
defendant’s pension definitively was established to be
distributable property in May, 2001, was a necessary
preliminary issue to be decided in this action alleging
fraudulent nondisclosure. Specifically, as the plaintiff
contends, and as the trial court belatedly acknowl-
edged, the defendant was legally obligated to disclose
the existence and characteristics of the pension to the
plaintiff and the dissolution court regardless of whether
it clearly was distributable property. Moreover, the
plaintiff’s ability to prove that she had been defrauded
was not dependent on her establishing that, had she
known about the pension in May, 2001, she necessarily
would have been awarded some portion of it. At the
same time, in light of the state of the law at the time,
it is entirely possible that the plaintiff would have been
awarded a share of the pension or other property in
lieu of a share. As explained more fully hereinafter, we
agree with the plaintiff that the trial court’s inordinate
focus on Bender, and the nonissue of whether the pen-
sion definitively was or was not marital property in
May, 2001, distorted the remainder of the trial and led
the court to commit reversible evidentiary error.
We first note the applicable standard of review. As
a general matter, the question of whether a particular
retirement benefit constitutes distributable property
pursuant to § 46b-81 is a question of statutory interpre-
tation. Accordingly, our review of the trial court’s deci-
sion is plenary. See Mickey v. Mickey, 292 Conn. 597,
613, 974 A.2d 641 (2009); Bender v. Bender, supra, 258
Conn. 741; Krafick v. Krafick, 234 Conn. 783, 793–94,
663 A.2d 365 (1995).
The following additional procedural history is rele-
vant. On December 11, 2007, during prehearing proceed-
ings, the trial court, sua sponte, directed the parties to
prepare for a bifurcated hearing on the plaintiff’s claim
of fraud. The court explained that ‘‘first and foremost
. . . we have to determine whether or not the [defen-
dant’s pension] is in fact a marital asset. Second, we
have to make a determination if it is a marital asset,
was it in fact disclosed. If it was not disclosed then we
have to determine whether or not that nondisclosure
was fraudulent. . . . [T]hat’s my . . . analysis of
this.’’
The trial court then mentioned this court’s decision
in Bender, noted that it was issued months after the
dissolution judgment,12 and opined that it represented
a change in the law. The trial court stated, therefore,
that with the parties’ input, it would have to decide
whether the pension was distributable property by
applying Bender, or ‘‘apply[ing] pre-Bender law because
this is a 2001 dissolution . . . .’’ According to the trial
court, ‘‘the fundamental question is was this particular
asset a marital asset in May of 2001 . . . because if it’s
not marital property . . . you just don’t go any further.
There’s no fraud. If it’s not marital property and [if] it
wasn’t disclosed, it doesn’t matter.’’13
In response to the court’s directive, the plaintiff’s
counsel noted that the Appellate Court’s decision in
Bender was released in the year prior to the dissolution
judgment,14 and that decision similarly indicated that
unvested pensions were distributable property. More-
over, in counsel’s view, even prior to Bender, there
was an obligation to disclose unvested pension benefits
during a dissolution action, such that a failure to dis-
close them would amount to a fraudulent misrepresen-
tation. The defendant’s counsel, for his part, argued
that the asset in question was not truly a pension and,
in any event, it had been disclosed orally.
The trial court then reiterated its view that the ‘‘semi-
nal question’’ in this case was whether the defendant’s
pension was ‘‘marital property in May of 2001.’’ The
court thus directed the parties to begin the hearing on
the plaintiff’s motion to open by limiting the evidence
to that particular question, and it explained again that
it would address the issue of disclosure only if the
question were answered in the affirmative. Thereafter,
a four day hearing was held. Consistent with the trial
court’s directive, the hearing was devoted to establish-
ing the features of the defendant’s pension, the contin-
gencies to which it was subject and the way it was
treated during, and affected by, the Pricewaterhouse-
Coopers LLP merger. See footnote 6 of this opinion.
The plaintiff, in her posthearing brief to the court,
claimed, inter alia, that the Appellate Court’s decision
in Bender, which had affirmed the distribution of an
unvested pension plan, predated the dissolution judg-
ment in this action and, therefore, required the defen-
dant to disclose his pension on his financial affidavit.
The plaintiff contended further that earlier jurispru-
dence also established such an obligation. The defen-
dant treated this court’s decision in Bender as
applicable, but argued that his unvested pension was
factually distinguishable from the one at issue in that
case.
In its memorandum of decision addressing whether
the defendant’s pension was property, the trial court,
after making extensive findings as to the particulars of
the pension, provided a detailed history of Connecti-
cut’s equitable distribution jurisprudence. It then con-
cluded that the Appellate Court’s decision in Bender v.
Bender, supra, 60 Conn. App. 252, was not pertinent.
According to the trial court, because the focus of the
Appellate Court’s decision was on whether the unvested
pension at issue had been properly valued and distrib-
uted, and the parties to that case did not dispute that
the pension was distributable property, the Appellate
Court did not decide whether the pension was property
under § 46b-81, but simply assumed that it was. Finally,
the trial court concluded that this court’s decision in
Bender v. Bender, supra, 258 Conn. 733, was not applica-
ble to the analysis because the release of the decision
postdated the dissolution judgment by several months.
Moreover, the trial court reasoned, that decision
amounted to a ‘‘sea change’’15 in our equitable distribu-
tion jurisprudence that was misguided and inconsistent
with earlier cases. In explaining its reasoning, the trial
court provided a lengthy critique of the majority opinion
in Bender, and it relied heavily upon a characterization
of our prior equitable distribution jurisprudence that
was articulated in a dissenting opinion. See Bender v.
Bender, supra, 258 Conn. 767–69 (Zarella, J., dis-
senting). The trial court then applied the law as the
dissenting opinion described it to exist prior to this
court’s decision in Bender and concluded that the defen-
dant’s pension, in May, 2001, was not ‘‘property’’ that
would have been subject to distribution as part of the
dissolution judgment.16
In the final paragraph of its twenty-four page memo-
randum of decision, the trial court concluded further,
in direct contradiction to its previous explanations of
the reasons for a bifurcated hearing, that the pension,
although not property, nevertheless needed to be dis-
closed. Specifically, the court now recognized, the dis-
solution court should have known about the pension
when determining whether the parties’ settlement was
fair and when crafting its award of alimony. Accord-
ingly, the trial court ordered that the hearing on the
plaintiff’s motion to open should continue. After the
second part of the hearing concluded, the trial court
held that no fraud had been proven.
Although several aspects of the trial court’s reasoning
are sound, we nevertheless disagree with both its over-
all approach to analyzing the issues in this case and its
conclusion that the defendant’s pension definitively was
not distributable marital property in May, 2001. First,
we agree with the plaintiff that the real issue in this
case was whether the defendant was required to dis-
close, and did in fact disclose, the pension during the
dissolution proceedings, and not whether the pension
was definitively established to be distributable property
in May, 2001. Second, regardless of whether the pension
was established to be distributable property at that
time, its existence was a highly relevant consideration
both for the plaintiff in deciding whether to agree to the
proposed settlement agreement, and for the dissolution
court in deciding whether to approve that agreement.
Accordingly, nondisclosure, if proven, could have
caused the plaintiff to act to her detriment, and full
disclosure could have led to a different result in the
dissolution action. Third, because the proper treatment
of unvested pension benefits in dissolution actions sim-
ply was an unsettled matter in May, 2001, the trial court
improperly treated it as definitively established instead
of acknowledging that, in light of the state of the law
at that time and the developments that were soon to
follow, the plaintiff might have been awarded a share
of the pension or other property in lieu of a share. As we
will explain hereinafter, the trial court’s unconventional
analysis and its improper conclusion as to the classifica-
tion of the pension distorted the remainder of the hear-
ing on the plaintiff’s motion to open and led the court
to commit reversible evidentiary error. Because of that
error, the court’s denial of the plaintiff’s motion to open
was an abuse of discretion.
To begin, as the trial court eventually realized after
conducting a lengthy hearing on the details of the defen-
dant’s unvested pension, the defendant unquestionably
was obligated to disclose that pension to the plaintiff
and the dissolution court, regardless of whether this
state’s appellate jurisprudence definitively had con-
firmed that it was distributable property by May, 2001.
Pursuant to the long-standing full and frank disclosure
policies and principles we have articulated; see
Weinstein v. Weinstein, supra, 275 Conn. 686–87; Bill-
ington v. Billington, supra, 220 Conn. 219–22; any
retirement or employment benefit potentially receiv-
able by a party to a dissolution action should be dis-
closed on that party’s financial affidavit along with all
known details as to its value, vesting requirements and
current status. In cases in which it is unclear or debat-
able whether the item at issue qualifies for distribution
under § 46b-81, it is for the trial court to make that
determination after a full and frank disclosure of the
item, its relevant attributes and any contingencies to
which it is subject.17 Conversely, it is patently improper
for a party to interpret the statute and case law and
decide for himself or herself whether the item qualifies
for distribution, and then to insulate that decision from
any judicial review by failing to disclose it. When the
trial court decides whether an item is distributable prop-
erty, if either party is dissatisfied, he or she has the
option of appealing the matter to a higher tribunal. In
this regard, we agree with the plaintiff that ‘‘[f]inancial
affidavits in dissolution matters are not intended as a
place for gamesmanship or even advocacy,’’ and that
affidavits require ‘‘unadulterated honesty because, in
the absence of full and frank disclosure, the entire sys-
tem breaks down.’’18
Next, even if a benefit such as an unvested pension
is too speculative to be distributable as marital property
pursuant to § 46b-81, its existence still may play into the
decision-making process of the benefit holder’s spouse
when he or she is determining whether to accept or
decline a proposed settlement offer. For instance, the
plaintiff in this case, if aware that the defendant was
approaching the vesting period for a pension offered
by his longtime employer19 that would provide, through-
out his entire retirement, an annual payment based on
30 percent of his income in his highest earning years,
might reasonably have demanded that she receive a
significantly greater percentage of the couple’s
remaining assets than she would have had she not
known about the pension. Although there were contin-
gencies that, had they come to pass, might have disquali-
fied the defendant from receiving the pension, the
plaintiff, having familiarity with her spouse, his work
history and the characteristics of his employer, might
have considered those contingencies to be negligible
and bargained accordingly. In short, the plaintiff could
have relied on nondisclosure of the pension to her detri-
ment, regardless of whether it ultimately was classified
as distributable marital property.
Relatedly, as the trial court correctly recognized after
conducting a mini-trial on whether the defendant’s pen-
sion was marital property in May, 2001, even when an
item is determined to be nondistributable, its existence
nevertheless is a relevant consideration for a court adju-
dicating a dissolution action when it assesses the fair-
ness of a settlement, distributes other property or
fashions other financial orders. See, e.g., General Stat-
utes § 46b-66 (a) (when reviewing settlement
agreements for fairness and equity, court must consider,
inter alia, ‘‘the financial resources . . . of the
spouses’’); General Statutes § 46b-81 (c) (when distrib-
uting property, court must consider, inter alia, ‘‘the
opportunity of each [party] for future acquisition of
capital assets and income’’); General Statutes § 46b-82
(a) (when fixing alimony, court must consider, inter
alia, ‘‘sources of income’’); see also Thompson v.
Thompson, 183 Conn. 96, 100, 438 A.2d 839 (1981) (trial
court properly considered plaintiff’s unaccrued pension
benefits as source of future income when fixing prop-
erty assignment and alimony orders).20 Consequently,
we reiterate, all retirement and employment benefits
potentially receivable by a party to a dissolution action
must be fully and frankly disclosed on that party’s finan-
cial affidavits, regardless of whether they are defini-
tively established to be distributable marital property.
Finally, although we further agree with the trial court
that this court’s decision in Bender v. Bender, supra,
258 Conn. 733, would not apply retroactively to May,
2001, to a case that, at that time, already had reached
final judgment,21 and that the earlier Appellate Court
decision in that case did not directly address the issue
of how unvested pensions should be classified, we dis-
agree that a determination of whether the defendant’s
pension definitively was established to be distributable
property at that discrete point in time was the pertinent
inquiry, or was in any way dispositive of the issues in
this case. Rather, the trial court simply should have
acknowledged that, in early to mid-2001, around the
time the parties were engaged in settlement negotia-
tions, the proper treatment of unvested pension benefits
in dissolution actions was an open question in Connect-
icut.22 That question was to be settled soon, however,
and there were significant indications that it would be
decided as it was. Instead of drawing an artificial line
on the calendar after which unvested pensions suddenly
became distributable property, the trial court should
have considered whether, in light of that legal climate,
there was a substantial likelihood that, had both the
plaintiff and the dissolution court knew of the pension,
the plaintiff would have refused to accept the settlement
agreement and the outcome of the dissolution proceed-
ings would have differed.
The parties’ dissolution action was commenced in
2000, and disposed of in May, 2001. As early as 1981,
this court held that a dissolution court properly could
consider a party’s unvested pension benefits when craft-
ing property and alimony orders. Thompson v. Thomp-
son, supra, 183 Conn. 100. In 1995, in Krafick v. Krafick,
supra, 234 Conn 798–99 n.23, after concluding that
vested pension benefits were distributable property,
this court noted that, although the issue of unvested
pension benefits was outside the scope of the decision,
‘‘the same reasoning has been applied to find that such
benefits also . . . constitute property,’’ and we cited
several decisions from other jurisdictions to that effect.
In that case and thereafter, in the years immediately
preceding the institution of the parties’ dissolution
action, this court began to cite a very broad definition
of property in marital cases,23 and we expanded our
interpretation of the scope of § 46b-81 to include such
things as personal injury awards; Lopiano v. Lopiano,
247 Conn. 356, 367, 752 A.2d 1000 (1998); and nonexer-
cisable stock options. Bornemann v. Bornemann, 245
Conn. 508, 518, 752 A.2d 978 (1998).24 In a 2000 appeal to
this court, a party raised the issue of whether unvested
pension benefits were distributable property, but we
did not resolve the issue then because of a confusing
and inadequate record. See generally Rosato v. Rosato,
255 Conn. 412, 766 A.2d 429 (2001). We reiterated, how-
ever, that the issue remained an open one, and we
retained jurisdiction over the appeal with an assurance
that we would decide the issue expeditiously in the
event the trial court, on remand, concluded that the
benefits at issue were in fact unvested. Id., 422 n.16,
425 n.19.25
Also around that time, at least one trial court had
ordered equitable distribution of a party’s unvested pen-
sion benefits. See Bender v. Bender, Superior Court,
judicial district of New Haven, Docket No. FA97-
0258814-S (October 8, 1998). In late 2000, the trial
court’s order was upheld by the Appellate Court. Bender
v. Bender, supra, 60 Conn. App. 252–53. The focus of
the Appellate Court’s decision was on the valuation and
distribution of the pension rather than its classification
as marital property,26 because the parties to that case
did not dispute that the pension was distributable. Id.,
254. The Appellate Court’s overt acceptance of this
underlying premise without, for example, ordering sup-
plemental briefing on the matter,27 suggested, however,
that it did not view classification of the pension as
property to be especially controversial.28
Finally, around the time the parties’ marriage was
dissolved, there existed a growing national consensus
in favor of treating unvested pension benefits as distrib-
utable property in dissolution actions. See Bender v.
Bender, supra, 258 Conn. 751 n.8 (citing decisions from
thirty-one jurisdictions, as well as statutes of four states
defining distributable property to include unvested pen-
sion benefits). Representatives of the national and state
family law bars, when asked in early 2001 to weigh in
on the matter, agreed that this was the proper approach.
See id., 741 n.4 (noting that American Academy of Matri-
monial Lawyers and Connecticut Bar Association Fam-
ily Law Section, whom this court invited to appear as
amici curiae, both contended that unvested pension
was distributable property).
Consequently, in the present matter, had the defen-
dant’s pension been listed on his financial affidavit,
Judge Harrigan might have followed this growing trend
and awarded a portion of the pension to the plaintiff.
Moreover, had the disposition of the case been delayed
for several months because of the plaintiff’s unwilling-
ness to settle without receiving a share of the
defendant’s pension or other property in lieu of a
share, that judge would have had the benefit of this
court’s decision in Bender v. Bender, supra, 258 Conn.
733, and would have been required to treat the pension
as distributable property. Alternatively, had the case
been tried and gone to final judgment with the plaintiff
having sought, but not received, an interest in the
pension, she might have pursued an appeal to challenge
that disposition, in which case, in light of our impending
decision in Bender, she would have prevailed. Instead
of holding a straightforward hearing on the elements
of fraud, acknowledging that the law regarding
distribution of unvested pensions was unsettled, con-
sidering the foregoing possibilities and determining
whether the plaintiff was misled by nondisclosure to
her ultimate detriment, the trial court embarked on
a lengthy excursion to determine the undeterminable,
namely, whether the defendant’s pension definitively
was or was not distributable property in May, 2001.29
This was improper.30
The defendant contends that any error the trial court
made in determining whether the pension was marital
property is harmless in light of the fact that the court
also found that the defendant orally disclosed the pen-
sion to the plaintiff and her representatives, and the
court’s finding, which has evidentiary support and,
therefore, is not clearly erroneous, necessarily is fatal
to the plaintiff’s claim of fraud. For the reasons
explained in part II of this opinion, the trial court’s
finding of disclosure must be revisited because of the
court’s failure to consider and/or admit important, rele-
vant evidence. Moreover, the court’s disregard of that
evidence stemmed from its flawed analysis regarding
whether the pension was distributable property.
Accordingly, we disagree that any impropriety in the
trial court’s classification of the pension could not have
affected its ultimate conclusion that fraud was
unproven.
II
The plaintiff’s next claim concerns the trial court’s
ruling as to the relevance of evidence concerning the
value of the defendant’s pension. The plaintiff contends
that the court improperly excluded important evidence
in that regard, and refused to consider other relevant
evidence. The defendant contends in response that,
although there was some evidence of the pension’s
value before the trial court, that evidence was ‘‘unneces-
sary’’ in the first phase of the proceedings on the motion
to open the judgment and ‘‘irrelevant’’ in the second
phase. We agree with the plaintiff.
A trial court’s ruling as to whether evidence is rele-
vant and probative is subject to review for an abuse of
discretion. State v. Jackson, 304 Conn. 383, 424, 40 A.3d
290 (2012). ‘‘Evidence is relevant if it has any tendency
to make the existence of any fact that is material to
the determination of the proceeding more probable or
less probable than it would be without the evidence.
Conn. Code Evid. § 4-1. Relevant evidence is evidence
that has a logical tendency to aid the trier in the determi-
nation of an issue. . . . One fact is relevant to another
if in the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . . Evi-
dence is not rendered inadmissible because it is not
conclusive. All that is required is that the evidence tend
to support a relevant fact even to a slight degree, [as]
long as it is not prejudicial or merely cumulative.’’
(Internal quotation marks omitted.) State v. Bonner,
290 Conn. 468, 496–97, 964 A.2d 73 (2009).
The following additional procedural history is rele-
vant. During the first phase of the proceedings, the
trial court directed the parties to focus on the specific,
narrow issue of whether the defendant’s pension quali-
fied as marital property pursuant to § 46b-81 at the time
of the dissolution judgment.31 Accordingly, the parties
addressed that issue alone, and any evidence presented
as to the pension’s value was peripheral and incomplete.
Miller, an actuarial and pension expert who testified
on the plaintiff’s behalf, did not offer a firm opinion as
to the pension’s value. Rather, he testified only as to
whether, as a general or conceptual matter, the pension
was susceptible of being valued,32 and he offered a
‘‘guesstimate’’ that at the end of 1999, it was worth
approximately $500,000.
At the conclusion of the first phase of the motion
proceedings, the trial court held that the pension was
not marital property subject to distribution. Thereafter,
during the second phase, conducted approximately nine
months later, the court ruled, sua sponte, that at that
stage of the trial, any evidence of the value of the pen-
sion, whether proffered by either party, was irrelevant
and immaterial and would not be admitted. In light of
that ruling, the plaintiff made an offer of proof for the
record, which included her disclosure of Miller as an
expert witness and a report that Miller had prepared33
to value the pension, in which he opined that it had a
substantial value, in excess of $1 million.34 The court
precluded the proffered evidence, again holding that it
was irrelevant and immaterial to the second phase of
the proceedings.
After the second phase, the trial court concluded that
the plaintiff had not proven fraud, essentially adopting
the defendant’s account of disclosure and discrediting
the plaintiff’s account of nondisclosure. The plaintiff
subsequently filed a motion for articulation wherein
she requested, inter alia, that the trial court articulate
whether it had made any determination as to the value
of the defendant’s pension at the time of the dissolution
judgment and, if so, what that value was. Following the
trial court’s denial of the plaintiff’s motion, this court,
upon review, ordered the trial court to provide the
requested articulation. In the articulation that followed,
the trial court explained that it considered the plaintiff’s
request to be a ‘‘red herring’’ because the court unequiv-
ocally had found that the pension was not property at
the time of the dissolution judgment. According to the
court, ‘‘[t]he clearly articulated purpose of the first
phase of the trial was not to determine the value of the
[pension], rather it was to determine if the [pension]
should be construed as a marital asset at the time of
the decree dissolving the marriage. This question was
answered in the negative.’’ (Emphasis in original.) Fur-
thermore, the court explained, ‘‘[a]ssuming arguendo
that [it] was looking to determine the value of the [pen-
sion] (which it was not),’’ there was ‘‘no credible evi-
dence as to [the] value of the [pension] as of May 25,
2001, the date of the dissolution of the [parties’] mar-
riage.’’ (Emphasis in original.) In this regard, the court
noted that the valuation provided by Miller in the first
phase of the motion proceedings was only a ‘‘ ‘guessti-
mate’ ’’ that the court did not find to be credible.
We agree with the plaintiff that the court’s evidentiary
rulings, whereby it refused to admit the most probative
evidence of the pension’s value or to consider and deter-
mine that value at all, were improper.35 First, to prevail
on her motion to open the judgment, the plaintiff needed
to prove that the defendant misrepresented the amount
of property he owned by failing to disclose the existence
of the pension and all of its salient features; see footnote
18 of this opinion; and that she relied on that misrepre-
sentation to her detriment by agreeing to a settlement
to which she would not have agreed had she known
all the details about the pension. See Weinstein v.
Weinstein, supra, 275 Conn. 685; Gelinas v. Gelinas,
supra, 10 Conn. App. 173. Because of the absence of
any documentary proof directly evidencing disclosure
of the pension by the defendant and knowledge of it
by the plaintiff, the trial court decided these issues
largely on the basis of its assessment of the parties’
credibility. In short, the court credited the defendant’s
version of events and discredited the plaintiff’s version.
If, however, the trial court were to have determined,
on the basis of a complete evidentiary record, that the
pension had considerable worth; see footnote 34 of
this opinion; that determination could have severely
undermined the court’s finding that the plaintiff had
full knowledge of the pension, yet simply chose not to
pursue any interest in it or some alternative compensa-
tion for relinquishing any such interest. Similarly, a
finding of substantial value may well have changed the
trial court’s assessment of the defendant’s account of
full and frank disclosure to the plaintiff, namely, disclo-
sure not only of the pension’s existence, but of all its
salient features, including its value.36
In connection with her motion to open, the plaintiff
also needed to show that the outcome of a new trial
probably would differ. Weinstein v. Weinstein, supra,
275 Conn. 685. Because of the court imposed bifurcated
hearing and the trial court’s improper conclusion, after
the first phase, that the pension definitively was not
property in May, 2001, the plaintiff was foreclosed from
arguing that, in light of the uncertain state of the law
at that time, the pension, if fully disclosed to the dissolu-
tion court, may well have been treated as distributable
property. In this event, the value of the pension was
relevant to the question of whether the plaintiff would
have been awarded a substantially different portion of
the parties’ total assets. Conversely, even if the plaintiff
could not show that the dissolution court would have
treated the pension as distributable property, the value
of the pension was relevant to the question of whether
that court, had it known of the pension, still would have
found the parties’ separation agreement to be fair and
equitable and approved it. The trial court, without con-
sidering any evidence of value, concluded that Judge
Harrigan’s finding in this regard would not have dif-
fered. We do not agree. Particularly, if the pension had
a present value in excess of $1 million, as Miller, the
plaintiff’s expert, intended to testify; see footnote 34 of
this opinion; it is questionable whether Judge Harrigan
would have approved the parties’ agreement, which
basically endeavored to give each party approximately
one half of the remaining marital property.37
For the foregoing reasons, we conclude that the trial
court’s evidentiary rulings, which flowed from its
improper analysis regarding whether the pension was
distributable property, were improper. Additionally, the
court’s finding that there was no fraud, which flowed
from those evidentiary rulings, also is fatally flawed.38
Consequently, the trial court’s denial of the plaintiff’s
motion to open was an abuse of discretion.
III
The plaintiff’s last claim is that the trial court improp-
erly required her to bear the burden of proving fraud
under the circumstances of this case. According to the
plaintiff, once it is established that a party to a dissolu-
tion action has failed to list a substantial asset either
on his or her financial affidavit or in open court, the
burden should shift to that party to prove, by clear and
convincing evidence, either the absence of fraud or that
the nondisclosure was harmless. The plaintiff concedes
that she did not raise this claim at trial, but asks that
this court find plain error in the trial court’s failure
to allocate the burden of proof as she suggests. The
defendant responds that there is no plain error for this
court to rectify because the trial court correctly applied
existing law that required the plaintiff to bear the bur-
den of proving the elements of fraud. We agree with
the defendant.
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5, is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for
reasons of policy. . . . In addition, the plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernable on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record.
‘‘Although a complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining the patent nature of the error,
the reviewing court must examine that error for the
grievousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice. . . . In State v. Fagan, [280
Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549
U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we
described the two-pronged nature of the plain error
doctrine: [An appellant] cannot prevail under [the plain
error doctrine] . . . unless he demonstrates that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Citation omitted; emphasis in original; inter-
nal quotation marks omitted.) State v. Sanchez, 308
Conn. 64, 76–78, 60 A.3d 271 (2013).
We agree with the defendant that the trial court cor-
rectly allocated and applied the burden of proof that, for
decades, has been part of our jurisprudence governing
motions to open dissolution judgments on the basis of
fraud, and furthermore, these cases have not distin-
guished between fraud based on misrepresentation and
that based on nondisclosure. See, e.g., Weinstein v.
Weinstein, supra, 275 Conn. 684–85; Billington v. Bill-
ington, supra, 220 Conn. 215, 217–18; Jucker v. Jucker,
190 Conn. 674, 675, 677, 461 A.2d 1384 (1983); see also
Terry v. Terry, 102 Conn. App. 215, 223, 925 A.2d 375,
cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). The
plaintiff did not object to the imposition of these stan-
dards at trial, nor did she suggest that another frame-
work should apply. Indeed, she concedes on appeal
that, under existing law, she bore the burden of proving
the elements of fraud by clear and convincing evidence.
In sum, the plaintiff does not contend that the court
improperly applied existing law, but rather, she requests
that we create and adopt a new exception to that law,
and then conclude that the trial court improperly failed
to apply that exception.
As the preceding explanation of the plain error doc-
trine makes clear, however, a prerequisite to its invoca-
tion is the trial court’s commission of an obvious and
serious error. We cannot find plain error under the
circumstances of this case because there is no true
error to correct. ‘‘[T]he plain error doctrine should not
be applied in order to review a ruling that is not arguably
incorrect in the first place.’’ State v. Pierce, 269 Conn.
442, 453, 849 A.2d 375 (2004); id. (holding that Appellate
Court improperly invoked plain error to raise supple-
mentary issues when ‘‘trial court acted pursuant to a
presumptively valid statute in accordance with its
express provisions’’). As we previously have explained,
when a trial court has ‘‘follow[ed] [an] established rule
of law . . . [it] can hardly be said to have committed
plain error’’; (internal quotation marks omitted) Wil-
liamson v. Commissioner of Transportation, 209
Conn. 310, 319, 551 A.2d 704 (1988); id. (no plain error
when trial court instructed jury, in accordance with
long line of cases applying General Statutes § 13a-144,
that it was plaintiff’s burden to prove defective highway
was sole proximate cause of her injuries); and ‘‘[i]t is
not plain error for a trial court to follow Connecticut
law.’’ Sorrentino v. All Seasons Services, 245 Conn.
756, 768, 717 A.2d 150 (1998); id., 766–68 (rejecting
defendant’s unpreserved claim that it was plain error
for court to instruct jury on plaintiff’s burden of proof
in wrongful discharge case in accordance with standard
articulated in state cases). When a party’s claim is
dependent on the recognition of a new legal standard,
plain error cannot apply. Feen v. New England Benefit
Cos., 81 Conn. App. 772, 778, 841 A.2d 1193 (no plain
error where appellant’s claim was contingent on unset-
tled legal principles), cert. denied, 269 Conn. 910, 852
A.2d 739 (2004). We conclude, therefore, that the trial
court did not commit plain error by placing the burden
of proving fraud on the plaintiff in accordance with
established Connecticut case law.
To summarize, the trial court improperly concluded
that the defendant’s unvested pension, in May, 2001,
definitively was not distributable marital property pur-
suant to § 46b-81. Because the court employed an incor-
rect legal analysis to conclude that the pension was not
property, it improperly refused to admit and/or consider
evidence of the pension’s value, evidence which was
relevant to the issues of whether it had been disclosed
and whether it would have affected the outcome of the
dissolution action. Consequently, the trial court’s denial
of the plaintiff’s motion to open was an abuse of discre-
tion. The trial court applied the correct burden of proof
to the plaintiff’s claim, and accordingly, did not commit
plain error in that regard.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion NORCOTT, PALMER, EVELEIGH and
McDONALD, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
General Statutes (Rev. to 2001) § 46b-81 provides in relevant part: ‘‘(a)
At the time of entering a decree . . . dissolving a marriage . . . the Supe-
rior Court may assign to either the husband or wife all or any part of the
estate of the other. . . .
‘‘(c) In fixing the nature and value of the property, if any, to be assigned,
the court, after hearing the witnesses, if any, of each party . . . shall con-
sider the length of the marriage, the causes for the . . . dissolution of the
marriage . . . the age, health, station, occupation, amount and sources of
income, vocational skills, employability, estate, liabilities and needs of each
of the parties and the opportunity of each for future acquisition of capital
assets and income. The court shall also consider the contribution of each
of the parties in the acquisition, preservation or appreciation in value of
their respective estates.’’
3
Subsequently, the plaintiff amended her September 15, 2005 motion to
allege that the defendant had failed to disclose the existence of a second
retirement plan. The defendant ultimately conceded that he inadvertently
had failed to disclose this second plan, which had comparatively little value,
and its disposition is not a subject of this appeal.
On October 11, 2005, the plaintiff filed another motion to open and modify
the dissolution judgment as it pertained to child support. On February 19,
2008, she filed a motion for contempt relating to the defendant’s alleged
violation of a term of the property distribution portion of the parties’ separa-
tion agreement. The trial court’s disposition of these two motions also is
not at issue in this appeal.
4
Hereinafter, references to the trial court are to Shay, J., unless other-
wise noted.
5
It is not clear why the trial court employed this approach to trying a
fraud claim. As explained more fully hereinafter, at the conclusion of the
first phase, the court concluded that the pension was not distributable
property, but that the defendant should have disclosed it anyway. The court
then held the second phase of the trial which, it previously had informed
the parties, would be unnecessary in the event the pension was not found
to be property.
6
Price Waterhouse and Coopers & Lybrand, LLP, merged in 1998 to form
PricewaterhouseCoopers LLP. The defendant worked for Price Waterhouse
for all but one year between 1980 and the time of the merger, and he was
named a partner of that firm on July 1, 1991. Postmerger, he remained a
partner in the newly formed entity, PricewaterhouseCoopers LLP.
7
General Statutes § 46b-66 (a) provides in relevant part: ‘‘In any case . . .
where the parties have submitted to the court an agreement concerning the
custody, care, education, visitation, maintenance or support of any of their
children or concerning alimony or the disposition of property, the court
shall inquire into the financial resources and actual needs of the spouses
and their respective fitness to have physical custody of or rights of visitation
with any minor child, in order to determine whether the agreement of the
spouses is fair and equitable under all the circumstances. If the court finds
the agreement fair and equitable, it shall become part of the court file, and
if the agreement is in writing, it shall be incorporated by reference into the
order or decree of the court. If the court finds the agreement is not fair and
equitable, it shall make such orders as to finances and custody as the
circumstances require. . . .’’
While changes have been made to § 46b-66 since the time of the proceed-
ings here; see, e.g., Public Acts 2001, No. 01-135, § 1; Public Acts 2005,
No. 05-258, § 1; subsection (a) has remained unchanged. For purposes of
convenience, we refer to the current revision of the statute.
8
General Statutes (Rev. to 2001) § 46b-82 provides in relevant part: ‘‘At
the time of entering the decree, the Superior Court may order either of the
parties to pay alimony to the other, in addition to or in lieu of an award
pursuant to section 46b-81. . . . In determining whether alimony shall be
awarded, and the duration and amount of the award, the court . . . shall
consider the length of the marriage, the causes for the . . . dissolution of
the marriage . . . the age, health, station, occupation, amount and sources
of income, vocational skills, employability, estate and needs of each of the
parties and the award, if any, which the court may make pursuant to section
46b-81, and, in the case of a parent to whom the custody of minor children
has been awarded, the desirability of such parent’s securing employment.’’
9
Apparently, Artabane intended to testify in the dissolution proceedings
as a character witness for the defendant, in the event such testimony
was necessary.
10
The plaintiff filed a motion to reargue, which the court denied without
substantive discussion.
11
We recently altered the standard for a party to obtain a new trial on
the basis of fraud to require that party to show only a ‘‘reasonable probabil-
ity’’ that the result of a new trial will be different, rather than a ‘‘substantial
likelihood,’’ as our previous case law had held. See Duart v. Dept. of Correc-
tion, 303 Conn. 479, 491, 34 A.3d 343 (2012). A reasonable probability means
‘‘a probability sufficient to undermine confidence in the outcome,’’ or that
the nondisclosed information ‘‘could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the [judgment].’’
(Internal quotation marks omitted.) Id., 492.
12
This court’s decision in Bender v. Bender, supra, 258 Conn. 733, was
released on December 18, 2001, approximately seven months after the judg-
ment of dissolution was rendered in the present case.
13
In a subsequent memorandum of decision, the trial court explained why
‘‘it was appropriate to divide the hearing into two distinct phases.’’ According
to the court, ‘‘a determination as to whether or not the [pension] was marital
property at the time of the decree dissolving the marriage was a distinct,
potentially definitive issue . . . . Accordingly, phase I would deal solely
with the issue of whether or not the [pension] in question was marital
property at the time of the decree. In the event that the court were to
conclude that, based upon the evidence, the [pension] was not marital
property, the inquiry as to that issue would for all intents and purposes end.
On the other hand, if there was an affirmative finding, the inquiry would
move to phase II. In that event, the court would be called upon to decide
whether or not the [defendant] failed to disclose the property in question
. . . whether or not the nondisclosure was fraudulent, and if so, would that
fact likely have altered the underlying judgment.’’ (Emphasis in original.)
14
The Appellate Court’s decision in Bender v. Bender, supra, 60 Conn.
App. 252, was released on October 3, 2000, approximately eight months
prior to the dissolution judgment in the present case.
15
A ‘‘sea change’’ is defined as ‘‘a striking change’’ or ‘‘any major transfor-
mation or alteration.’’ Random House Unabridged Dictionary (2d Ed. 1993).
16
The trial court described Justice Zarella’s dissenting opinion in Bender
as ‘‘well reasoned,’’ and stated that it ‘‘agree[d]’’ with the analysis therein.
When subsequently discussing its opinion with the parties, the trial court
explained that, although it had ‘‘great respect’’ for this court, it ‘‘also [had]
great respect for some individual members of the court . . . .’’ The trial
court indicated that it accepted Justice Zarella’s view of pre-Bender jurispru-
dence; see Bender v. Bender, supra, 258 Conn. 767–69; and it concluded,
therefore, that ‘‘what this case turned on was the calendar.’’
17
Both parties’ counsel from the dissolution action appear to have under-
stood this requirement. Attorney Piazza testified that, in 2000, when he had
clients with unvested assets, he always listed those assets on the clients’
financial affidavits. Attorney Burdett testified that he counseled clients to
include on their affidavits assets with doubtful status and that he had so
advised the defendant, but also that the defendant was a proactive client
with clear opinions who made the ultimate decision not to list the pension.
18
We take this opportunity to emphasize that full and frank disclosure of
a pension should include not only the facts of its existence and vesting
status (i.e., the total time of employment needed to vest and the time the
employee spouse already has completed), but also any readily available
information pertaining to the calculation of benefits and/or the present value
of those benefits. Cf. Weinstein v. Weinstein, supra, 275 Conn. 690 n.12 (to
comply with requirement of full and frank disclosure, defendant should have
disclosed both fact of ownership of asset and accurate assessment of asset’s
worth). Moreover, disclosure of all relevant information that is available
should be clear and overt, and not merely discoverable or inferable through
careful analysis of a mass of documentation. Id., 690 n.12, 693 n.14. In this
regard, we reject the defendant’s contention that vague, general references in
the PricewaterhouseCoopers LLP partnership agreement to retired partners’
receipt of ‘‘payments’’ or ‘‘participat[ion] in [n]et [p]rofits,’’ or the single
word ‘‘pension,’’ in a schedule appended to some of the many drafts of the
parties’ separation agreement, constitute full and frank disclosure of the
pension and all of its relevant attributes. Notably, the trial court’s memoran-
dum of decision does not cite these documents as evidence of disclosure.
19
See footnote 6 of this opinion.
20
The dissenting justice questions whether Thompson supports the propo-
sition that unvested pension benefits must be disclosed because his examina-
tion of the record and briefs in that case reveals that it actually involved
the unaccrued portion of a vested pension, rather than an unvested pension.
He contends that subsequent decisions of this court describing Thompson
differently have misinterpreted its holding. Regardless of whether this is
the case, Thompson still stands for the proposition that benefits that are
not distributable property, for whatever reason, may be taken into account
by a court fashioning financial orders in a dissolution proceeding. Such
benefits, therefore, need to be disclosed. Accordingly, Thompson is not, as
the dissent states’ ‘‘inapposite.’’
21
Although the general rule is that judicial decisions may apply retroac-
tively to govern disputes whose operative facts predate those decisions; see
Ostrowski v. Avery, 243 Conn. 355, 377 n.18, 703 A.2d 117 (1997); retroactive
application nevertheless is limited to cases that are pending and, therefore,
have not resulted in final judgments. Marone v. Waterbury, 244 Conn. 1, 11
n.10, 707 A.2d 725 (1998). In May, 2001, the parties’ dissolution action had
gone to final judgment.
We agree, therefore, with the trial court that Bender did not apply retroac-
tively to the parties’ dissolution action. We disagree, however, with the trial
court’s reasoning. In concluding that Bender did not apply retroactively, the
trial court improperly applied the law applicable to statutory amendments
rather than judicial decisions.
22
We disagree with the defendant’s suggestion that, prior to 2001, the
Appellate Court had held that employment benefits were not property due
to their unvested status. In Wendt v. Wendt, 59 Conn. App. 656, 674–76, 757
A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000), the Appellate
Court upheld the trial court’s ruling that certain pension benefits were not
distributable marital property because they represented, in their entirety,
compensation for postdissolution employment services, and not because
they were unvested per se. See also Hopfer v. Hopfer, 59 Conn. App. 452,
458, 757 A.2d 673 (2000) (same reasoning, as to unvested stock options).
23
See Lopiano v. Lopiano, 247 Conn. 356, 365, 752 A.2d 1000 (1998) (The
court defined ‘‘property as the term commonly used to denote everything
which is the subject of ownership, corporeal or incorporeal, tangible or
intangible, visible or invisible, real or personal; everything that has an
exchangeable value or which goes to make up wealth or estate. It extends
to every species of valuable right and interest, and includes real and personal
property, easements, franchises, and incorporeal hereditaments . . . .’’
[Internal quotation marks omitted.]), quoting Black’s Law Dictionary (6th
Ed. 1990) p. 1216; see also Simmons v. Simmons, 244 Conn. 158, 165, 708
A.2d 949 (1998) (same); Krafick v. Krafick, supra, 234 Conn. 794 (same).
24
But see Simmons v. Simmons, 244 Conn. 158, 164, 708 A.2d 949
(1998) (medical degree not property subject to equitable distribution).
To dispute our assertion that, around the time of the parties’ divorce,
our case law was trending toward a broader conception of what
constituted distributable property, the dissent cites Krause v. Krause,
174 Conn. 361, 387 A.2d 548 (1978), and Rubin v. Rubin, 204 Conn.
224, 527 A.2d 1184 (1987). At the time of the judgment in the parties’
dissolution action, the decisions in Krause and Rubin were twenty-
three and fourteen years old, respectively, and, as such, do not speak
as strongly to the direction of our case law in 2001 as the cases we
cite herein, which were decided in 1998.
25
The decision in Rosato v. Rosato, supra, 255 Conn. 412, was
released on March 6, 2001.
26
When dividing resources in a dissolution action, ‘‘[t]here are three
stages of analysis regarding the equitable distribution of each
resource: first, whether the resource is property within § 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).’’ Krafick v. Krafick, supra, 234 Conn. 792–93.
27
In its opinion, the Appellate Court expressly stated that classifica-
tion of the pension was not at issue because ‘‘[n]either party challenges
the authority of the court to award nonvested pension rights.’’ Bender
v. Bender, supra, 60 Conn. App. 254.
28
Arguably, the Appellate Court’s acceptance of the premise that
the unvested pension at issue was property pursuant to § 46b-81, a
determination that was an essential prerequisite to the valuation and
distribution of the pension; see footnote 26 of this opinion; was a
controlling precedent to be followed by the dissolution court. Bender
was not a case in which an appellate tribunal assumed, without decid-
ing, that a subsidiary legal prerequisite was established because the
claim whose success depended on that prerequisite would fail in any
event. See, e.g., Schumann v. Dianon Systems, Inc., 304 Conn. 585,
621, 43 A.3d 111 (2012) (assuming, without deciding, that balancing
test for determining whether public employee speech was constitu-
tionally protected was applicable before concluding that plaintiff
could not prevail under that test). In such instances, the assumed
point is not essential to the court’s ultimate holding and, therefore,
it creates no binding precedent. We recognize, however, that the
precedential effect of a case is substantially diminished when the
legal point involved was decided with little or no argument. See 20
Am. Jur. 2d 519, Courts § 137 (2005).
29
The trial court’s decision to paint this court’s decision in Bender
v. Bender, supra, 258 Conn. 733, as marking a bright line on the
calendar, prior to which an unvested pension definitively was not
property and after which it was, stemmed from the trial court’s charac-
terization of Bender as a surprising reinterpretation of § 46b-81 that
upended earlier jurisprudence. As we have explained herein, we dis-
agree with that characterization. Additionally, in Bender itself, we
stated that our decision to treat unvested pension benefits as property
rested on a theme running throughout our prior case law; id., 748,
751; and made clear that we had not ‘‘overruled our prior cases defining
property for purposes of our equitable distribution statute . . . [but
rather, had] built upon their foundation.’’ Id., 753. Although Bender
did break new ground and adopt a more nuanced approach toward
classification of assets as marital property; see Mickey v. Mickey,
supra, 292 Conn. 625–28; such incremental steps in jurisprudential
development are a hallmark of the common law and, for the reasons
we have explained, we do not consider this court’s holding in Bender
to have been a particularly surprising one.
Instead of accepting this court’s view of its own § 46b-81 jurispru-
dence, as stated in Bender, the trial court enthusiastically embraced
an alternative description of that jurisprudence that was set forth in
the dissenting opinion in that case. See Bender v. Bender, supra, 258
Conn. 764–79 (Zarella, J., dissenting). The trial court also devoted
several pages of its memorandum of decision to critiquing the majority
opinion in Bender, posing rhetorical questions about the implications
of the holding and making clear that it much preferred, and even
‘‘agree[d]’’ with, the reasoning of the dissenting opinion. In the trial
court’s view, when faced with a majority and dissenting opinion on
a matter, ‘‘the best course for the court is to attempt to reconcile
both positions, if possible, and then to apply that reasoning to the
particular facts at . . . hand.’’
Our disapproval of this aspect of the trial court’s decision cannot
be overstated. It is axiomatic that a dissenting opinion, by its very
nature, represents a minority of the court’s disagreement with the
law as established by the majority opinion and, therefore, is not an
authoritative ruling to be applied by a lower court. See Arar v. Ash-
croft, 585 F.3d 559, 581 n.14 (2d Cir. 2009) (‘‘[d]issents by their nature
express views that are not the law’’), cert. denied, 560 U.S. 978, 130
S. Ct. 3409, 177 L. Ed. 2d 349 (2010); Kennedy v. Walker, 135 Conn.
262, 274, 63 A.2d 589 (1948) (dissenting and concurring opinions ‘‘[do]
not represent authoritative law’’), aff’d, 337 U.S. 901, 69 S. Ct. 1046,
93 L. Ed. 1715 (1949), superseded by statute on other grounds as
stated in State v. Sanabria, 192 Conn. 671, 474 A.2d 760 (1984); State
v. Hernaiz, 140 Conn. App. 848, 855, 60 A.3d 331 (refusing defendant’s
request to rely on dissenting opinions contrary to established law),
cert. denied, 308 Conn. 928, 64 A.3d 121 (2013). Additionally, once
this court has finally determined an issue, for a lower court to reana-
lyze and revisit that issue is an ‘‘improper and fruitless’’ endeavor.
State v. Shipman, 142 Conn. App. 161, 166, 64 A.3d 338, cert. denied,
309 Conn. 918, 70 A.3d 41 (2013); see also Cannizzaro v. Marinyak,
139 Conn. App. 722, 734, 57 A.3d 830 (2012) (explaining that it is not
lower court’s province to reevaluate Supreme Court precedent), cert.
granted on other grounds, 308 Conn. 902, 60 A.3d 286 (2013). The
trial court’s reliance on a dissenting opinion as a source of law was
improper. Unfortunately, the trial court’s gratuitous editorializing
regarding the majority opinion in Bender v. Bender, supra, 258 Conn.
733, strongly suggests a fundamental misconception of its role in a
hierarchical system of justice.
30
The dissent contends that the trial court’s preliminary focus on
determining whether the defendant’s pension, in May, 2001, was
definitively established to be distributable property pursuant to § 46b-
81, was demanded by the plaintiff’s theory of her case, as evidenced
by her motion to open which, in part, sought relief pursuant to the
parties’ settlement agreement. We do not agree. Although, for the
reasons we explain in this opinion, the legal status of unvested pen-
sions in and around 2001 was generally relevant, focusing the inquiry
on the precise date of the parties’ settlement agreement and the
dissolution of their marriage was inappropriate and, further, was not
mandated by the plaintiff’s motion to open. In fact, the plaintiff argued
in her motion that: (1) had she known about the pension, she never
would have entered the settlement agreement; and (2) unvested pen-
sions were ‘‘ ‘property or assets’ ’’ subject to disclosure and distribu-
tion pursuant to § 46b-81 ‘‘at the time of the events outlined’’ in the
motion, which events spanned from 2000 through 2004. Finally, it is not
clear that the parties, when addressing nondisclosure of ‘‘a property
interest, the effect thereof or an important characteristic thereof’’ in
the penalty clause of their settlement agreement, intended that phrase
to be defined strictly as any property definitively established by Con-
necticut appellate jurisprudence to be distributable pursuant to
§ 46b-81.
31
According to the trial court, the first phase of the hearing was
focused on the classification stage of ‘‘the [three stage] Krafick
model.’’ Valuation and distribution are the other two stages of that
model. See footnote 26 of this opinion.
32
While testifying, Miller referenced the personalized projection
report that PricewaterhouseCoopers LLP, had made available to the
defendant in April, 2000, and that report was admitted into evidence.
Miller explained that the report, employing certain assumptions as to
the vesting date, discount rate, earnings growth and life expectancy,
stated that the defendant’s future pension benefits, at the end of 1999,
had a present value of $3,839,117. The projection report did not take
into account the contingencies to which the defendant’s ultimate
receipt of the pension was subject, however, nor did it specify which
portion of the present value was attributable to services that were
yet to be rendered, postdissolution.
33
Miller completed his report subsequent to the first phase of the
motion proceedings.
34
The plaintiff’s expert witness disclosure indicated that Miller
would testify about, inter alia, the present value of the defendant’s
pension as of the date of the dissolution judgment. Specifically, Miller
would have testified consistently with his report that, as of that date,
the defendant had earned an annual benefit of $105,988, and that the
present value of that income stream was in excess of $1 million.
Miller’s report details his methodology, the information on which he
relied and the assumptions he employed.
35
The dissent contends that the following analysis is inappropriate
because the plaintiff, at trial, did not proffer her evidence of the
pension’s value along with a detailed explanation of its relevance to
the issues before the court, specifically arguing that the evidence
would discredit the defendant’s testimony regarding those issues.
According to the dissent, therefore, we improperly hold that the evi-
dence was admissible on an unpreserved basis. The trial court, how-
ever, did not even wait for the plaintiff to offer the evidence, or for
the defendant to object to it, before ruling, sua sponte, that no evidence
of value would be admitted, although both parties had prepared such
evidence and intended to present it. In the highly unusual circum-
stances of this case, wherein the trial court imposed its own theoretical
framework on the litigation, unexpectedly altered that framework
midstream and, then, proactively ruled on evidentiary objections that
had not been made, we decline to penalize the plaintiff for not making
a textbook objection to the trial court’s sua sponte ruling. Because,
as we explain hereinafter, valuation evidence clearly was relevant to
both the elements of fraud and the factors governing a motion to open
on the basis of fraud, the trial court’s ruling likely invoked confusion.
36
Pursuant to their separation agreement, the parties had endeav-
ored to divide their assets equally. At the time of the dissolution, they
stipulated that their former marital home was worth $550,000, and
their final financial affidavits reflect other divisible assets of approxi-
mately $1.5 million. Accordingly, an additional asset valued in excess
of $1 million was extremely significant.
37
In the dissent’s view, Miller’s report and testimony properly were
excluded because, due to the report’s analytical deficiencies, it was
entirely irrelevant and hence inadmissible. The dissent contends that
the trial court, even had it considered the evidence, necessarily would
not have found it credible. According to the dissent, even though
Miller explicitly listed a number of uncertainties regarding the pension,
he did not actually take them into account.
The trial court did not reject the cited evidence on the rationale set
forth by the dissent, and even the defendant does not suggest such
a sweeping argument. In any event, we disagree with the dissent’s
assessment of the report, which was prepared by a highly qualified
expert, with degrees in mathematics and actuarial science, who spe-
cialized in evaluating employee pensions and their present values.
The dissent speculates that, although Miller articulated several contin-
gencies to which the defendant’s receipt of his pension was subject,
he did not actually take them into account. A more plausible reading,
however, is that he did take them into account, but did not believe
they warranted the excessively high discount rate chosen by Mark S.
Campbell, the defendant’s expert. For example, the report quotes
PricewaterhouseCoopers LLP documents and reports evidencing the
firm’s commitment to the pension and the firm’s financial health, and
it discusses the defendant’s lengthy employment history with the firm,
including almost one decade as a partner, in support of the conclusion
that he was unlikely to be terminated prematurely. Additionally,
because the trial court did not permit Miller to testify, he never had
the opportunity to explain the reasoning behind his report, nor to
explain why he disagreed with the opposing report, which the dissent
simply accepts unquestioningly. Miller identifies several problems
with Campbell’s estimate of the pension’s present value, not least
among them that it was in ‘‘direct contrast’’ to the projection report
prepared by PricewaterhouseCoopers LLP, and made available to the
defendant, in April, 2000. In crediting Campbell’s report over Miller’s,
the dissent essentially is finding facts, a task which clearly is not the
function of an appellate tribunal. Cruz v. Visual Perceptions, LLC,
311 Conn. 93, 106, 84 A.3d 828 (2014).
38
The dissent criticizes us for failing to analyze directly whether
the trial court’s factual finding that the pension was disclosed is clearly
erroneous. Our response to that criticism is that the plaintiff has not
made that argument, but rather, has claimed evidentiary error.