Fronsaglia v. Fronsaglia, 202 Conn. App. 769 (2021) (dissipation of marital assets; earning capacity; fault)
Officially released February 23, 2021
In Short: Trial Courts have discretion to punish dissipation of marital assets, have the ability to use the available evidence to determine actual earnings based on bank records and historical patterns and award alimony on that basis, and may weigh the cause of the breakdown of the marriage as they see fit in the face of damning evidence.
The divorce matter was tried before the Honorable Judge Grossman. Husband appealed the decision arguing that the Trial Court (1) abused its discretion by awarding Wife a grossly disproportionate property and liability distribution, (2) erred by assigning Husband an earning capacity of $160,000 without sufficient evidence, (3) erred by basing its alimony award on gross income rather than net income without sufficient evidence to determine net income based on the assumed gross, and (4) abused its discretion by awarding alimony to punish Husband for his purported misdeeds.
The parties were married in 1992 and had two children, one of whom was a minor at time of dissolution. Wife filed for divorce in 2016. Wife was a fifty-two-year-old registered nurse. Husband was fifty-four-year-old self-employed businessman via a limited liability company in the furniture business.
During the pendency of the action, the parties stipulated that Husband would pay certain family expenses and was found in contempt for failing to do so. Husband terminated his association with a furniture wholesale company with which he had done business for many years and sold his 12.5% interest in that company for $550,000 without notifying Wife or obtaining permission of the Trial Court, which monies Husband spent. Husband invested tens of thousands of dollars in a restaurant, Thigh High Chickens, Co., LLC in violation of the Automatic Orders.
After a five-day trial, the Trial Court issued a decision finding Wife’s gross income to be $115,000 per year and Husband’s to be $160,000 for 2018. The Trial Court found that Husband had intentionally delayed filing his taxes for the prior two years in order to avoid filing them until after the divorce. The Trial Court found that Husband had commingled his business and personal finances such that the only way to determine his income was to look at historical annual earnings, his profit and loss statements, his bank and credit card records, his emails, his correspondence with Wife, and historical financial arrangements such as the pendente lite stipulation.
The Trial Court Ordered Husband to pay alimony of $1,500 per month for twenty years, non-modifiable as to amount for the first five years, and non-modifiable as to term. The Trial Court ordered all business debts and liabilities in Husband’s name to Husband, and Wife was ordered to pay all debts she had incurred. The Trial Court awarded the marital home, valued at $477,000 to Wife. The home was encumbered by a $127,000 mortgage for which Wife was responsible, and also by $203,000 in liens from Husband’s business, which he was ordered responsible to pay in the event of sale. If he were unable to do so, he would pay $18,000 per year to Wife until Wife was compensated for the balance of the liens.
The Trial Court articulated that, in fashioning its distribution of assets, that it considered Husband’s dissipation of the $550,000 that he obtained from the sale of his business interest during the pendency of the case, and considered that to be part of his share of the award. The Trial Court further articulated that it based its division of marital debts on its findings that Husband had incurred debt and spent money frivolously during the pendency of the case in violation of the Automatic Orders.
The Appellate Court reviewed the financial awards under the abuse of discretion standard, such that the Trial Court would only be overturned if it either incorrectly applied the law or could not reasonably conclude as it did, while providing every reasonable presumption in favor of its correctness.
Husband’s first claim was that the Trial Court abused its discretion by awarding Wife a grossly disproportionate property and liability distribution. Husband claims Wife was awarded $331,897 in assets and Husband only $53,964, for an 87% to 13% split. The Appellate Court found that Husband’s claim was factually inaccurate, in that the Trial Court found he dissipated $550,000 of marital assets. The Trial Court was within its equitable authority to take dissipated assets into consideration in dividing property.
Husband’s second claim was that the Trial Court erred by assigning Husband an earning capacity of $160,000 without sufficient evidence. Husband argued that the Trial Court conflated earning capacity with actual earnings. The Appellate Court agreed that the Trial Court made its finding based on actual earnings, but found that the Trial Court had ample evidence in the record to support its findings in the form of past earnings, spending habits, and bank and credit card statements.
Husband’s third claim was that the Trial Court erred by basing its alimony award on gross income rather than net income without sufficient evidence to determine net income based on the assumed gross. He argued that the Trial Court made no effort to determine his net income in fashioning its alimony award. The Appellate Court has consistently found that an order that is expressed as a function of gross earnings may still be proper if the net result is considered. Husband failed to provide tax returns from which the Trial Court could ascertain actual net income, leaving the Trial Court to use the evidence it had. Between Husband’s own failure to provide evidence and the Trial Court’s evidence of Husband’s historical spending, the Trial Court did not rely solely on gross income to form its alimony award.
Husband’s fourth claim was that the Trial Court abused its discretion by awarding alimony to punish Husband for his purported misdeeds. The Appellate Court held that the Trial Court was free to weight the factors of § 46b-82 as it saw fit. The Trial Court’s findings that Husband’s extramarital affair with a twenty-two-year-old employee and his unilateral and poor business decisions caused the breakdown of the marriage was supported by the record. The Appellate Court found no abuse of discretion.
The Judgment was affirmed.