MICHAEL J. O'BRIEN v. KATHLEEN E. O'BRIEN, SC 19635

Judicial District of Fairfield

 

      Dissolution of Marriage; Whether Appellate Court Correctly Determined that Trial Court Abused its Discretion in Considering Plaintiff’s Purported Violations of Automatic Orders in Dividing Marital Assets.  The plaintiff brought this divorce action in 2008.  The trial court dissolved the parties’ marriage and issued several financial orders.  The Appellate Court reversed the trial court’s judgment and remanded the matter for a new trial.  On remand, the defendant filed a motion for contempt, alleging that prior to the first divorce trial and during the appeal, the plaintiff had sold shares of stock that he held in his corporate employer and exercised stock options in violation of the automatic orders contained in Practice Book § 25-5, which provides that, during the pendency of the divorce action, “[n]either party shall sell, transfer, exchange, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, except in the usual course of business or for customary and usual household expenses. . . .”  The trial court determined that the plaintiff’s financial transactions resulted in a significant loss to the marital estate and constituted violations of the automatic orders.  Accordingly, it took the transactions into account in crafting its financial orders, but it did not find the plaintiff to be in contempt on the ground that his actions were based upon the advice of his attorneys.  On appeal, the plaintiff argued that the trial court’s decision to penalize him when it crafted its financial orders was improper because his actions were merely intended to protect the marital assets at a time when the stock market was in decline.  The Appellate Court (161 Conn. App. 575) agreed, finding that even if the plaintiff’s actions amounted to technical violations of the automatic orders, the trial court’s reduction of the plaintiff’s share of the property distribution was improper.  It reasoned that although Practice Book § 25-5 provides that the failure to comply with the automatic orders may result in a finding of contempt, the trial court determined that the plaintiff’s actions were not contumacious, and it therefore lacked the authority to take any remedial action pursuant to its civil contempt powers even though the transactions had proven to be unprofitable.  It also opined that although a trial court has the statutory authority under General Statutes § 46b-81 to consider whether a spouse has dissipated marital assets when dividing the marital property, there was no evidence here to indicate that the plaintiff intended to waste marital assets or hide assets from the defendant or the court.  It emphasized that, instead, the plaintiff was merely concerned that the stock and stock options would lose value due to the ongoing financial crisis.  Accordingly, the Appellate Court reversed the trial court’s judgment.  The defendant appeals, and the Supreme Court will decide whether the Appellate Court correctly determined that the trial court abused its discretion when it considered the plaintiff’s purported violations of the automatic orders in its decision dividing the marital assets.