Judicial District of Middlesex


      Torts; Whether Party Pleaded Legally Cognizable Cause of Action for Breach of Divorcing Spouse’s Duty to Preserve Marital Assets; Whether Summary Judgment Properly Rendered Based on Legal Insufficiency of Pleading.  Paul John Ferri, Jr., is the sole beneficiary of a trust valued at over $60 million that was established by his father in 1983.  In 2011, during the pendency of a divorce action between Ferri and Nancy Powell-Ferri, the trustees distributed a substantial portion of the trust assets to a separate trust.  While the terms of the 1983 trust give Ferri the right to withdraw from the principal, Ferri does not have that right with respect to the 2011 trust.  The trustees then brought this declaratory judgment action seeking a ruling that they validly exercised their authority in transferring the trust assets and that Powell-Ferri has no interest in the 2011 trust.  Powell-Ferri counterclaimed, alleging that the trustees transferred the assets with the intent of depriving her of any rights and claims that she has to the assets.  Powell-Ferri also brought a cross complaint alleging that Ferri breached his duty to preserve marital assets by failing to take any affirmative action to contest the transfer of the trust assets or to recover them.  The trial court granted Ferri’s motion for summary judgment, ruling that the cross complaint failed to state a legally cognizable cause of action and that the defect could not be cured by repleading.  The court reasoned that the fiduciary duty that divorcing spouses have to each other of full and open financial disclosure does not extend to a requirement that they recover assets to the marital estate.  The court additionally explained that while divorcing spouses may not dissipate assets belonging to the marital estate, dissipation requires financial misconduct such as intentional waste or selfish impropriety, and there were no allegations that Ferri engaged in such conduct here.  The court further reasoned that even if such allegations were present, there is no societal expectation embodied in the law which requires a divorcing spouse to take affirmative steps to recover an asset removed from the marital estate by the action of a third party alone.  The trial court concluded, accordingly, that the cause of action urged by Powell-Ferri for breach of a duty to preserve marital assets should not be recognized in this state.  Powell-Ferri appeals, claiming that the trial court improperly found that her cross complaint failed to state a legally cognizable cause of action and further erred by deciding the matter on summary judgment, which precluded her from repleading.