Fronsaglia v. Fronsaglia

202 Conn.App. 769

246 A.3d 1083

Lisa FRONSAGLIA

v.Benigno FRONSAGLIA

AC 42685

Appellate Court of Connecticut.

Argued October 15, 2020

Officially released February 23, 2021

William W. Taylor, for the appellant (defendant).

Campbell D. Barrett, with whom were Johanna S. Katz and, on the brief, Jon T. Kukucka, for the appellee (plaintiff).

Lavine, Moll and Bishop, Js.^*

BISHOP, J.

The defendant, Benigno Fronsaglia, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Lisa Fronsaglia. On appeal, the defendant claims that the court (1) abused its discretion in fashioning its financial orders by making a grossly disproportionate property distribution in the plaintiff's favor and by assigning the majority of the marital debt to him, (2) erred by basing its orders on the defendant's assumed earning capacity of $160,000, where no evidence existed to support the earning capacity determined by the court, (3) erred in basing its alimony award on gross income rather than net income, when there was no evidence to support a net income based on the defendant's assumed gross income, and (4) abused its discretion by awarding alimony to the plaintiff to punish the defendant for his purported misdeeds. We affirm the judgment of the trial court.

The following facts, as found by the trial court or as undisputed in the record, and procedural history are relevant to our resolution of this appeal. The parties were married on June 20, 1992, in Trumbull. They have two children, one of whom was a minor at the time of the dissolution. The plaintiff commenced the dissolution action on November 28, 2016, seeking a dissolution of her marriage to the defendant on the ground that the marriage had broken down irretrievably without the chance of reconciliation. The plaintiff also sought, inter alia, joint legal and primary physical custody of the minor child, equitable distribution of all marital debts and assets, and orders for payment of alimony, child support, postsecondary education, and attorney's fees. At the time of the dissolution proceeding, the plaintiff was fifty-two years old and working as a registered nurse. The defendant was fifty-four years old with a bachelor's degree in business and working as a self-employed businessman importing and selling furniture through his limited liability company, Meeting International.

During the pendency of the action, the court incorporated into an order the parties’ pendente lite stipulation in which the defendant agreed, inter alia, to continue to pay the mortgage for the family home, cell phone bills, automobile insurance, homeowners insurance, and other household bills.

On November 7, 2018, after a five day trial, the court issued an oral ruling, which was later signed as its memorandum of decision, dissolving the marriage and issuing financial orders. In its decision, the court found the plaintiff's gross income to be $115,000 per year, and the defendant's gross income for 2018 to be $160,000.

During the pendente lite period, the defendant terminated his association with emuamericas, LLC, a furniture wholesale company based in Italy with which he had been doing business for many years. In doing so, the defendant sold his 12.5 percent interest in emuamericas, LLC, for $550,000 without the court's permission and without informing the plaintiff. The defendant disclosed that he depleted the entire $550,000 sum pendente lite. The defendant had also invested tens of thousands of dollars in a restaurant, Thigh High Chicken Co., LLC, pendente lite in violation of the automatic orders.¹

The defendant did not file his tax returns for the two years prior to the dissolution action. The court found that he intentionally had delayed filing his taxes so that he could file them when the dissolution proceedings were over. Further, the court found that, because the defendant had commingled his business and personal finances and had no current employee who could attest to his income, the only way to determine his income was by looking at his historical annual earnings, his profit and loss statements that he had submitted into evidence, his bank account and credit card records, e-mail exchanges between the defendant and the companies Pedrali and emuamericas, LLC,² the testimony of his former employee, and by taking judicial notice of prior court orders and arrangements, such as the parties’ agreement that the defendant would continue paying the family's household bills. The defendant also filed two financial affidavits with the court, in which he listed his total net weekly income, total weekly expenses and liabilities, total cash value of assets, and total liabilities after breaking down his expenses in detail.

On the basis of that evidence, the court found that the defendant's "actual income range [was] between $150,000 and $175,000 annually." Moreover, the court determined that the defendant's actual personal gross earnings for 2018, the calendar year in question, were $160,000.

Thereafter, the court ordered the defendant to pay alimony to the plaintiff based on the length of the parties’ marriage, the reason for the breakdown of the marriage,³ the disparity in the parties’ earnings, the parties’ earning capacities,⁴ "as well as the myriad of factors in [ General Statutes §] 46b-82 ...." In doing so, among other orders, the court awarded the plaintiff alimony for twenty years, a nonmodifiable term, during which the plaintiff was to receive $1500 per month from the defendant, which was nonmodifiable for the first five years. The court assigned any debts arising from the defendant's business ventures to the defendant, as well as any tax liabilities in the defendant's name and those tax obligations arising from his businesses. The defendant retained his interest in his companies and any interest he had in his mother's home. The plaintiff was ordered to pay all of the debts that she incurred.

The court awarded the family home to the plaintiff. The court found that the home had an approximate value of $477,000 with $127,000 remaining on the mortgage, and liens on the home in the amount of $203,000 due to the defendant's decision to use the home as collateral for his business loans. Consequently, there was only $147,000 of equity in the home. The court also ordered that, because the defendant was responsible for the business debts secured by the home, in the event that the plaintiff was to sell the home in the future, the defendant would be obligated to pay the plaintiff an amount sufficient to satisfy any remaining liens so that the net proceeds due to the plaintiff upon the sale would not be reduced by the amount of those liens, other than the mortgage, remaining on the property. The court further ordered that, in the event that the defendant is unable to pay the plaintiff or secure the release of the liens prior to the sale of the home, he must pay the plaintiff $18,000 per year until the full amount of the lien balances has been reduced to zero. The court ordered the defendant to make the $18,000 payments in order to reimburse the plaintiff for any amount of the sale proceeds that would have been used to pay the liens before the sale of the home, thereby reducing the amount of the encumbrances on the property. The court also ordered that, should the defendant procure releases or reductions for some of the liens prior to any sale, "it [would] reduce the total amount due to the [plaintiff] from him." The court also ordered that the defendant continue to seek releases of the business debts after the marital dissolution in order to clear the title to the home of the liens that were associated with his business debts.

The defendant filed a postjudgment motion for articulation on November 26, 2018. He sought to have the court articulate the factual basis for its findings as to his purported gross income, net income, and the basis for the court's distribution of the parties’ assets and debts.

The court granted the motion in part and issued an articulation. In its articulation, the court stated that, in fashioning its distribution of assets award, it took into consideration the defendant's dissipation of the $550,000 that he had obtained from the sale of his interest in emuamericas, LLC. Specifically, in fashioning its property allocation award, the court stated that it had included the $550,000 in the defendant's portion of the marital assets because it had found that he "received, concealed and spent approximately $550,000 in marital assets during the pendente lite period." The court stated that, by doing so, the parties were awarded an approximate equal share of the marital assets. The court also clarified its reasoning regarding the distribution of the parties’ debts. The court based its division of the marital debts on its finding that the defendant had incurred debt and spent money frivolously during the pendente lite period in violation of the automatic orders. Particularly, the court had found that the defendant continued to accumulate credit card debt while failing to pay the household bills and mortgage as required by the pendente lite orders, and that the defendant also had incurred debts associated with Thigh High Chicken Co., LLC. Noting that the defendant's representations of his financial status were given little weight due to his numerous misrepresentations to the court, the court explained that the defendant was assigned the debts related to the many failed business ventures that he had undertaken, most of which were undertaken without the plaintiff's knowledge and over which she exercised no control. The defendant himself stated that the plaintiff was not responsible for his business debts. This appeal followed.

Before addressing the defendant's claims, we set forth the well settled standard of review applicable to a court's decision regarding financial orders. "We review financial awards in dissolution actions under an abuse of discretion standard. ... In order to...