Antonucci v. Antonucci

164 Conn.App. 95

138 A.3d 297

Marianna ANTONUCCI

v.Vincent ANTONUCCI.

No. 36842.

Appellate Court of Connecticut.

Argued Sept. 21, 2015.

Decided March 29, 2016.

Thomas M. Cassone, Stamford, for the appellant (plaintiff).

Kevin F. Collins, Stamford, with whom, on the brief, was Ami Jayne Wilson, for the appellee (defendant).

SHELDON, KELLER and SCHALLER, Js.

KELLER, J.

The plaintiff, Marianna Antonucci, appeals from the trial court's award of lump sum alimony to the defendant, Vincent Antonucci, in the context of its judgment dissolving the parties' twenty-five year marriage. The plaintiff claims that the court erred by (1) failing to enforce an agreement between the parties and the plaintiff's mother, whereby the plaintiff's mother transferred her real property (property) to the plaintiff and retained a life estate in it for herself, conditioned on the defendant waiving any claims to the property; (2) reopening the evidence sua sponte in order to allow the parties the opportunity to offer additional evidence regarding the valuation of the plaintiff's remainder interest in the property; (3) adopting the valuation of the plaintiff's remainder interest in the property proposed by one of the defendant's expert witnesses, William F. Murray, who assertedly was not qualified to appraise the value of remainder interests in residential real estate and had not used a relevant discount rate in calculating the value of the plaintiff's remainder interest in the property; and (4) failing to consider adequately the parties' current financial circumstances in awarding the defendant lump sum alimony, payable by the plaintiff in ten annual nonmodifiable installments, each equaling more than 40 percent of her annual gross income, commencing just three months from the date of the judgment of dissolution.

On the basis of our conclusion that the court erred in its analysis with respect to the enforceability of the agreement between the parties and the plaintiff's mother, and in determining the value of the plaintiff's remainder interest in the property, we reverse the judgment of the trial court, in part, with respect to its financial orders. We remand the case to the trial court for further proceedings on the issue of whether the parties' agreement with the plaintiff's mother is enforceable and for reconsideration of all financial orders.¹

The plaintiff filed an action for dissolution of the parties' marriage on August 10, 2011. The trial initially took place over a period of four days in August, 2013. After both parties had rested, the trial court, sua sponte, on November 1, 2013, ordered the evidence reopened, indicating that, although it had accepted the methodology of the plaintiff's expert for determining the value of the plaintiff's remainder interest in the property, it believed that one of the variables in the expert's formula, the discount rate utilized by the plaintiff's expert to determine the net present value of the remainder interest, was inappropriate. The court then gave the parties an opportunity to present additional evidence on March 14, 2014, as to an appropriate discount rate. The court rendered a judgment of dissolution on March 21, 2014.

In rendering its decision, the court found the following facts: “The plaintiff ... whose birth name was Marianna Sandolo, and the defendant ... were married in Stamford, Connecticut, on April 10, 1988. They are the parents of two adult children.... The parties have been living separate and apart for approximately two years. Neither party graduated from high school, and both are currently employed. The [plaintiff] is a co-owner with her mother of a family restaurant in Stamford, and the [defendant] is a heavy equipment operator for Lee Rizzuto.... Both have comparable incomes of approximately $50,000 per annum, and both have, apart from a couple of relatively brief periods of unemployment by the [defendant], been steadily employed throughout the marriage. Except for some minor conditions, each enjoys generally good health. Neither claims alimony from the other.

“Throughout the marriage, the couple benefited from substantial gifts from their respective families, by far the greater coming from the [plaintiff's] parents. Remarkably, they have managed to save nothing—no safety net; no retirement accounts. While the [plaintiff] generally paid the bills, both are relatively unsophisticated when it comes to finances. Neither was able to live within their means, enabled no doubt by the generosity of the [plaintiff's] parents. They bought, improved, and sold some real properties, yet their investments had marginal returns at best. For the first ten years of marriage, and later, at the end, they lived in her parents' home. Prior to moving back with the [plaintiff's] mother, the couple [was] residing at 501 Roxbury Road, Stamford. They sold this property in June, 2007.... They own several automobiles between them, as well as a modest time-share in Florida.

“The principal bone of contention is the [plaintiff's] interest in the real property at 85 Doolittle Road in Stamford, formerly the residence of the [plaintiff's] parents. On November 9, 2005, following the death of the [plaintiff's] father, her mother, Filomena Sandolo, transferred her interest in the real property to her daughter by way of a quitclaim deed ... while at the same time retaining a life estate in the property. The conveyance of the real estate was made pursuant to a certain Agreement ... also dated November 9, 2005, signed by both parties and Filomena Sandolo, which contained the further proviso that the [defendant] waive any claims thereto, particularly in the event of a divorce....

“After the death of her husband ... Sandolo wanted to remain in her own home; however, she did not wish to live there alone. Accordingly, she asked the [defendant] and [plaintiff] if they would like to live with her again. She indicated that she would make some substantial improvements to the home if they would do so.... [B]oth parties agreed. [Sandolo] called her family attorney, Joseph Pankowski, to draft certain documents and to bring them to her home. He did so on November 9, 2005.

“Each party called upon an expert to value the real estate at 85 Doolittle Road, Stamford, and the [plaintiff's] remainder interest therein. The [plaintiff's] expert, Armand V. Liguori, testified that the value of the real property and improvements as of May 14, 2013 was $1,280,000, which opinion was supported by a written appraisal.... For his part, the [defendant's] expert, James J. Tooher, testified that as of that date, the value of the property was $1,325,000, which was also supported by a written appraisal.... While the court found both witnesses credible on this point, it finds that the more reliable number is the lower number. However, in arriving at the value of the [plaintiff's] remainder interest, the experts varied in a range from $513,000 ( [plaintiff's] expert) to $634,000 ( [defendant's] expert). While the court finds ... the methodology employed by [Liguori] to be more reliable ... it finds that he relied upon an article published in 1998 and applied a 10 percent discount [rate], which the court finds is not reflective of the current circumstances.

“The court heard the matter over the course of five days, including final argument, and the evidence closed on August 28, 2013. However, upon further consideration, citing the case of Mensah v. Mensah² [145 Conn.App. 644, 75 A.3d 92 (2013) ] ... the court reopened the evidence on November 1, 2013, in order to allow the parties the opportunity to offer additional evidence regarding the discount rate to be applied in the valuation of the [plaintiff's] remainder interest....³ A further hearing was held on March 14, 2014, where the court heard the testimony of the [defendant's] expert, William Murray, as well as briefly the [plaintiff's business attorney, Jonathan Hoffman,] and her real estate appraiser ... Liguori. Mr. Murray testified at length and submitted a written report.... The witness testified categorically that a 10 percent discount rate was not realistic. Basing his opinion upon a life expectancy of 11.1 years, an average rental in Stamford for a comparable property, and a combination of historical [Real Estate Investment Trust] performance return data and the applicable federal rate, he testified that the appropriate discount rate should be 3.37 percent. Applying that to the market value of the property, results in a value of the remainder [interest] of $1,103,806.” (Citations omitted; emphasis in original; footnotes added.)

Before it issued its final orders, the court addressed certain questions of law. First, it determined that the plaintiff's remainder interest in the property was part of the marital estate as it was “acquired while the parties were husband and wife” and “[was] the sole significant asset in either party's name at the termination of a twenty-five year marriage.”⁴

The court noted that, “[i]n family cases ... it is the function of the court to divide the marital estate, irrespective of who holds title.” The court cited General Statutes § 46b–81 (a), which states in relevant part that “[a]t the time of entering a decree aning or dissolving a marriage or for legal separation ... the Superior Court may assign to either spouse all or any part of the estate of the other....” Further, the court concluded that the plaintiff “has a vested interest in the real property at 85 Doolittle Road ... [and] this interest is capable of valuation at this time.”

Next, the court discussed the enforceability of the agreement dated November 9, 2005, between the parties and Sandolo. Although it expressed concerns as to the agreement's legal viability, the court determined that it did not need to abrogate the agreement, deciding instead to use “alternate means to achieve an equitable resolution of this family dispute.” The court concluded that, regardless of the terms of the agreement, “[s]aying that [...