Finan v. Finan

949 A.2d 468

287 Conn. 491

Meredith FINAN v. John FINAN.

No. 17918.

Supreme Court of Connecticut.

Argued February 4, 2008.

Decided July 1, 2008.

Charles D. Ray, Hartford, for the appellant (plaintiff).

Sperry A. DeCew, for the appellee (defendant).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and SCHALLER, Js.

NORCOTT, J.

The principal issue in this certified appeal requires us to answer the question, which was left unanswered in our recent decision in Gershman v. Gershman, 286 Conn. 341, 350-51 n. 10, 943 A.2d 1091 (2008), of whether a trial court fashioning financial orders in dissolution cases may consider a party's pre-separation dissipation of marital assets. The plaintiff, Meredith Finan, appeals, following our grant of certification,¹ from the judgment of the Appellate Court reversing in part the financial orders of the trial court disposing of the marital residence and ordering the defendant, John Finan, to pay her unallocated alimony and child support of $95,000 annually based on his salary of $225,000. Finan v. Finan, 100 Conn.App. 297, 299, 918 A.2d 910 (2007). The plaintiff claims that the Appellate Court improperly concluded that the record was inadequate for review of her dissipation claim, and further asks this court, in the interest of judicial economy, to determine whether trial courts should consider both preseparation and postseparation dissipation of marital assets when fashioning financial orders. We conclude that the record is adequate for review of the plaintiff's claim and that a trial court should consider preseparation dissipation of marital assets, so long as the actions constituting dissipation occur either: (1) in contemplation of divorce or separation; or (2) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown. Accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court decision sets forth the following facts and procedural history. "The parties married on September 11, 1982, and, at the time of the trial, had three children, of which two were minors. The court rendered judgment dissolving the marriage on March 11, 2005. The court found that the marriage had broken down irretrievably without attributing fault to either party as to the cause of the breakdown.

"The court entered orders regarding property distribution, alimony, child support and other miscellaneous matters. As part of the dissolution decree, the court ordered the defendant to pay to the plaintiff `unallocated alimony and child support in equal semimonthly installments on the first and fifteenth of each month, the annual sum of $95,000 based on his base salary of $225,000.'" Id.

The plaintiff appealed the trial court's judgment to the Appellate Court, claiming, inter alia, that the trial court "improperly refused to admit into evidence a report detailing the defendant's preseparation dissipation of marital assets ... [and] that the court failed to consider evidence that the defendant dissipated marital assets by spending large sums of money prior to the parties' separation." Id., at 308, 918 A.2d 910. Specifically, at trial, the report was initially admitted into evidence over the defendant's objection, but subsequently was stricken, redacted and then readmitted after the defendant renewed his objection. Id. The Appellate Court declined to review the plaintiff's claim pertaining to this ruling, however, concluding that the record was inadequate for review because the plaintiff had failed to have the first report admitted as an exhibit or marked for identification. Id., at 308-309, 918 A.2d 910. This certified appeal followed.

I

We begin with the certified issue in this appeal, namely, the plaintiff's claim that the Appellate Court improperly concluded that the record is inadequate to review her dissipation claims. Specifically, the plaintiff claims that there was no need for her to mark for identification exhibit G, the initial financial report summarizing activity in the parties' joint bank accounts, because it already had been admitted into evidence at trial and subsequently was replaced in the record with another report, exhibit L, which was limited to only postseparation expenditures. The plaintiff contends that the second report, exhibit L, "was entered as a wholly different exhibit ... and not as a substitute for the original report. Thus, there can be no dispute that both exhibits were made apart of the trial court record." In addition, the plaintiff proffered copies of both exhibits in the appendix to her brief for Appellate Court review. The plaintiff further emphasizes that "the basis of the trial court's ruling is obvious and fully contained in the record — the trial court ruled that it would consider only postseparation spending by [the defendant]." In response, the defendant relies on Carpenter v. Carpenter, 188 Conn. 736, 453 A.2d 1151 (1982), and argues that the plaintiff failed to provide the court with an adequate record for review by not marking the stricken document for identification. We agree with the plaintiff, and conclude that the record in this case is adequate for appellate review of her claim, namely, that the trial court improperly refused to admit evidence of potential marital asset dissipation that occurred prior to the separation of the parties.

"The duty to provide this court with a record adequate for review rests with the appellant.... It is the responsibility of the appellant to provide an adequate record for review as provided in [Practice Book §]61-10.... The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal.... Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did.... The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review." (Citations omitted; internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 257 Conn. 359, 364, 777 A.2d 681(2001); id., at 363, 777 A.2d 681 (record inadequate for review because "plaintiff did not enter into the record for identification purposes the income tax returns that he had intended to offer as proof").

Notwithstanding this general rule, evidentiary claims have been reviewed on appeal, even when the excluded exhibit was not marked for identification, if the record reveals an adequate substitute for that exhibit. See Cousins v. Nelson, 87 Conn. App. 611, 615 n. 2, 866 A.2d 620 (2005) (record adequate for review of medical journal article because "an adequate substitute identification exists here in the offer of proof of the contents of the cited article that was made by the plaintiff in the absence of the jury, and the article also was attached to the plaintiff's subsequent motion to set aside the verdict"); Esposito v. Presnick, 15 Conn.App. 654, 662 n. 2, 546 A.2d 899 (reviewing claim that trial court improperly refused to admit tape recordings containing admissions by defendant, despite failure to mark them for identification, because "an adequate substitute identification exists here in the offer of proof of the contents of the tape recordings made by the plaintiffs in the absence of the jury"), cert. denied, 209 Conn. 819, 551 A.2d 755 (1988); Canton Motorcar Works, Inc. v. DiMartino, 6 Conn.App. 447, 456, 505 A.2d 1255 (case was "one of those rare instances in which the record provides an adequate substitute for the proffered but unmarked items ... [because] [t]he material in question is a disassembled automobile ... [and] the defendant had admitted as full exhibits forty photographs of the automobile, some of which depict the parts detached from the body before reconstructive work, some showing the parts after work had been done, and others showing the body of the car with and without various parts ... [and] the testimony of the witnesses extensively describes the parts depicted in the photographs and the details of the work that had been done on various parts"), cert. denied, 200 Conn. 802, 509 A.2d 516 (1986); Plawecki v. Angelo Tomasso, Inc., 1 Conn.App. 48, 50 n. 3, 467 A.2d 944 (1983) ("find[ing] an adequate substitute in the record for the [plaintiff's] statement, notwithstanding the fact that it was not marked as an exhibit for identification"), cert. denied, 192 Conn. 801, 470 A.2d 1218 (1984).

Having reviewed the record, we note that the unredacted, original exhibit G remained a part of the court file before both the Appellate Court and this court on appeal, and that it also has been duplicated in the appendix to the plaintiff's brief. Moreover, the basis of the trial court's ruling is abundantly clear from a review of the transcripts. During the testimony of Karlene Mitchell — a divorce financial examiner who had created exhibit G, the compilation at issue that summarized the parties' joint bank accounts from January, 1999, through November, 2004—the trial court ruled that "what I need basically is, from the point of separation to the present time, which is contained in this compilation."² Indeed, the trial court clearly rejected the plaintiff's attempt to ask it "to consider the propriety of your getting all of the information from December, 1999." After further testimony by Mitchell, the plaintiff then agreed to redact the portion of the compilation that preceded the parties' separation. When Mitchell returned to court the following day, she brought the redacted compilation with her, which was admitted as exhibit L in place of exhibit G, which had been stricken from the record.

We conclude that the Appellate Court improperly declined to review the plaintiff's claim in this appeal on the basis of her failure to mark the report, exhibit G, for identification.³ The state of the record in this case...