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Page 3 CONNECTICUT LAW JOURNAL January 7, 2025
2 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
D. S. v. D. S.
(SC 20830)
McDonald, D’Auria, Mullins, Ecker, Alexander and Dannehy, Js.*
Syllabus
The plaintiff appealed, on the granting of certification, from the judgment
of the Appellate Court, which had affirmed the trial court’s judgment dissolving his marriage to the defendant, who was a partner at a large law firm.
The plaintiff claimed, inter alia, that the Appellate Court had incorrectly
concluded that the defendant’s interest in a potential stream of retirement
payments, which was to be paid pursuant to the relevant provisions of
the firm’s partnership agreement, was too speculative to constitute marital
property subject to equitable distribution under the statute (§ 46b-81) governing, inter alia, the assignment of property in marital dissolution cases. Held:
A trial court’s determination of whether an asset or interest constitutes
marital property for purposes of § 46b-81 presents a mixed question of law
and fact subject to de novo review, the trial court’s underlying factual
findings are reviewed for clear error, and the question of how such determinations as to any particular asset fit into the mosaic of the trial court’s
financial orders is reviewed for abuse of discretion.
The Appellate Court correctly determined that the defendant’s interest in
the retirement payments did not constitute property subject to equitable
distribution for purposes of § 46b-81.
The defendant did not have an enforceable right to receive the retirement
payments insofar as the defendant’s firm had a contractual right under the
partnership agreement to unilaterally reduce or eliminate them at any time,
even after the defendant started receiving them, and, accordingly, the defendant’s receipt of the retirement payments was too speculative.
Moreover, changes in the law firm’s demographics and compensation structure supported this court’s conclusion that the firm’s exercise of its authority
to modify or terminate the retirement payments was more than a theoretical
possibility, and equitable considerations weighed in favor of a conclusion
that those payments should be treated as a source of potential income for
alimony rather than a nonmodifiable property distribution.
* This case originally was argued before a panel of this court consisting
of Chief Justice Robinson and Justices McDonald, D’Auria, Mullins, Ecker,
Alexander and Dannehy. Thereafter, Chief Justice Robinson retired from
this court and did not participate in the consideration of the case.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
January 7, 2025 CONNECTICUT LAW JOURNAL Page 4
351 Conn. 1 JANUARY, 2025 3
D. S. v. D. S.
The Appellate Court correctly concluded that the trial court had not abused
its discretion in awarding the plaintiff alimony that was contingent on the
defendant’s remaining an active partner at her law firm or on her being a
retired partner receiving retirement payments from the firm.
The trial court weighed all of the factors enumerated in the alimony statute
(§ 46b-82 (a)), as well as the equitable factors and the circumstances relevant
to the dissolution of the parties’ marriage, and crafted an alimony order
with the intent of ensuring that the plaintiff would be financially supported
for a limited time period and of incentivizing the plaintiff to initiate a good
faith job search and to acquire employment commensurate with his earning capacity.
(One justice dissenting)
Argued February 7, 2024—officially released January 7, 2025
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Diana, J.,
rendered judgment dissolving the marriage and granting
certain other relief, from which the plaintiff appealed
to the Appellate Court, Prescott, Suarez and Bishop,
Js., which affirmed the trial court’s judgment, and the
plaintiff, on the granting of certification, appealed to
this court. Affirmed.
Charles D. Ray, with whom was Justyn P. Stokely,
for the appellant (plaintiff).
Kenneth J. Bartschi, with whom were Karen L. Dowd
and, on the brief, Thomas P. Parrino and Randi R.
Nelson, for the appellee (defendant).
Opinion
DANNEHY, J. In this appeal, we consider whether an
interest in an unfunded retirement benefit constitutes
property pursuant to General Statutes § 46b-81, when
that interest will never vest because it may be unilaterally revoked by a third party at any time. The plaintiff,
Page 5 CONNECTICUT LAW JOURNAL January 7, 2025
4 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
D. S., appeals from the judgment of the Appellate Court
1
affirming the trial court’s judgment of dissolution.2 On
appeal, the plaintiff claims that the Appellate Court
incorrectly concluded that the interest of the defendant,
D. S., in a potential stream of retirement payments (retirement payments) pursuant to the partnership agreement
of her law firm (firm) was too speculative in nature to
constitute marital property subject to equitable distribution under § 46b-81. The plaintiff further claims that
the Appellate Court incorrectly concluded that the trial
court did not abuse its discretion in ordering an alimony
award that was tied to her employment at the firm.3
We affirm the judgment of the Appellate Court.
The record reveals the following relevant facts, either
undisputed or found by the trial court. The plaintiff and
1
During the course of the trial in this case, the trial court ordered certain
documents to be sealed and, at times, closed the hearings. Consistent with
the Appellate Court’s modification of those sealing orders pursuant to its
authority under Practice Book § 77-2 (a), in this opinion, we do not refer
to the parties or their children by name and do not identify any of the
parties’ past or present employers. See D. S. v. D. S., 217 Conn. App. 530,
532–33 n.1, 289 A.3d 236 (2023).
2
The plaintiff filed a petition for certification to appeal from the judgment
of the Appellate Court to this court. We granted the plaintiff’s petition for
certification, limited to the following issues: (1) ‘‘Did the Appellate Court
correctly conclude that the defendant’s interest in her law firm’s retirement
plan was too uncertain to qualify as martial property subject to equitable
distribution pursuant to General Statutes § 46b-81?’’ And (2) ‘‘[d]id the Appellate Court correctly conclude that the trial court had not abused its discretion
in awarding alimony that . . . was terminable at the defendant’s sole discretion and . . . was specific to the defendant’s employment at one particular
firm?’’ D. S. v. D. S., 346 Conn. 924, 924,
295 A.3d 419 (2023).
3
The defendant contends that the plaintiff’s claim challenging the court’s
alimony award is unpreserved. We disagree. The defendant’s proposed financial orders included the provision that the plaintiff now disputes, that the
defendant’s alimony obligation would be limited to her association with the
firm, either as an active partner or a retired partner receiving retirement
payments. Although the plaintiff failed to raise this particular argument in
the trial court in response to the court’s direction, on March 5, 2021, to
do so, during closing argument, the plaintiff’s counsel contended that the
defendant’s proposed financial orders would ‘‘crush’’ the plaintiff and argued
that the court should not adopt them. Additionally, as we discuss subsequently in this opinion, the plaintiff raised this issue in his motion to reargue.
January 7, 2025 CONNECTICUT LAW JOURNAL Page 6
351 Conn. 1 JANUARY, 2025 5
D. S. v. D. S.
defendant married in 1990, and have two children, one
of whom was a minor at the time of trial.
The defendant is a partner at a large law firm, and
earns an annual gross income of approximately $8 million. Until he was laid off in 2001, the plaintiff worked
as an investment banker, earning more than $1 million
in his most successful year. After 2002, the plaintiff
made no real financial contribution to the family. Although
he subsequently started his own private equity firm,
this venture (and others) was unsuccessful, and that
firm was dissolved several years later. During this time,
in addition to managing her own growing professional
responsibilities, the defendant performed legal work
for the plaintiff’s assorted failed business ventures, paid
his employees’ salaries, and handled two tax audits. At
the time of the dissolution, the plaintiff had not worked
for an employer for approximately eighteen years.
Despite the defendant’s considerable income, the
plaintiff’s unchecked spending resulted in the family’s
accumulation of substantial debt. Although the defendant tried to institute restraints, the plaintiff rejected
her efforts to demonstrate that their financial situation
was dire and that his spending was unsustainable. Eventually, the defendant decided to stop providing the plaintiff
with documentation of her income. The plaintiff’s spending only accelerated, and the defendant was forced to
borrow extensively to meet the family’s financial obligations. At the time of dissolution, the defendant continued to borrow money through a line of credit to meet
the family’s financial obligations. Throughout this time,
the plaintiff refused to seek employment, despite his
impressive educational credentials and experience in the
investment banking profession.
The plaintiff also terrorized the family emotionally
and physically with his explosive anger, jealousy, and
attempts to control the defendant’s behavior. On occa-
Page 7 CONNECTICUT LAW JOURNAL January 7, 2025
6 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
sions when the defendant suggested that he obtain
employment, the plaintiff became ‘‘unglued and belligerent, responding usually by yelling and swearing at
the defendant.’’ He sometimes verbally abused the
defendant in front of their children. On one occasion,
while the defendant was showering, the plaintiff
slammed the shower door so hard that the door shattered, and shards of glass injured the defendant. The
trial court found that the plaintiff was solely responsible
for the breakdown of the marriage due to his abusive
behavior and mismanagement of the family’s finances.
In 2017, the plaintiff commenced this dissolution
action seeking joint custody, child support, alimony,
and an equitable division of the property in the marital
estate. Following a twenty day trial, the court rendered
judgment dissolving the marriage. The trial court issued
financial orders relating to parenting, child support,
costs for the children’s schooling and activities, alimony, health insurance and related costs, the disposition of the parties’ assets and liabilities, and attorney’s
fees. Relevant to the two issues presented in this appeal,
first, the court determined that the defendant’s interest
in the retirement payments pursuant to the partnership
agreement did not constitute property for purposes of
§ 46b-81. Specifically, the court found that the defendant’s interest in the retirement payments involves
‘‘variables, risks and requirements that are not fixed
and impossible to determine at this time.’’ In making
its finding, the court relied primarily on the testimony
of the defendant’s expert witness, Mark Harrison,
regarding the nature of the defendant’s interest. The
court concluded that the interest constituted a ‘‘mere
expectancy’’ and had no value at the time of dissolution.
Accordingly, the trial court treated these potential payments as a future stream of income to be awarded as
alimony pursuant to General Statutes § 46b-82, rather
than as property subject to distribution pursuant to
January 7, 2025 CONNECTICUT LAW JOURNAL Page 8
351 Conn. 1 JANUARY, 2025 7
D. S. v. D. S.
§ 46b-81. Second, the court ordered the defendant to
pay the plaintiff $35,000 per month in alimony for the
first twelve months after the date of dissolution, and
$30,000 per month thereafter. The court ordered that
this alimony obligation would terminate when the
defendant was no longer employed as an active partner
at the firm. Once the defendant ceased to be an active
partner, as long as she was receiving retirement payments pursuant to the partnership agreement, she
would be obligated to pay alimony to the plaintiff in
the amount of 25 percent of her net after-tax income
actually received. The court ordered that this alimony
obligation would terminate upon the death of either the
plaintiff or the defendant but not upon the plaintiff’s
remarriage.
The trial court further ordered that the defendant’s
alimony obligation, both prior to and after her employment as an active partner with the firm, would be ‘‘nonmodifiable upward and nonmodifiable as to increases
in duration.’’ The trial court denied the plaintiff’s subsequent motion to reargue, which had challenged, among
other aspects of the court’s judgment, the alimony and
property awards. The plaintiff appealed from the judgment of dissolution to the Appellate Court, which
affirmed the judgment of the trial court. D. S. v. D. S.,
217 Conn. App. 530, 532, 552,
289 A.3d 236 (2023). This
certified appeal followed. Additional facts will be set
forth as necessary.
I
The plaintiff first contends that the Appellate Court
and the trial court incorrectly concluded that the defendant’s interest in the retirement payments was too
uncertain to qualify as marital property subject to equitable distribution pursuant to § 46b-81. On the basis of
the unique facts of this case, we conclude that the
retirement payments did not constitute property.
Page 9 CONNECTICUT LAW JOURNAL January 7, 2025
8 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
The record reveals the following additional facts relevant to our resolution of this issue. As we noted previously in this opinion, in concluding that the defendant’s
interest in the retirement payments was a mere expectancy, the court credited and relied heavily on Harrison’s expert testimony. Harrison, in turn, relied in part
on a report prepared by the plaintiff’s witness, Henry
Guberman,4 which describes the details of the retirement payments as set forth in the partnership agreement. In particular, Guberman’s report explained the
provisions in the partnership agreement governing a
retired partner’s eligibility to receive the retirement payments and setting forth the methodology used to calculate that partner’s benefit.
In his testimony, Harrison described some general,
foundational facts helpful to understanding the nature
of the defendant’s interest in the retirement payments.
He pointed out that the payments to retired partners
pursuant to the partnership agreement are not listed as a
liability on the firm’s financial statements. He explained
that, in order to qualify as a liability for purposes of
accounting, the interest must ‘‘be probable to be paid
in [a] reasonably estimable . . . amount.’’ Because the
firm does not consider these payments a liability, therefore, it would be a ‘‘leap’’ to categorize the payments
as an asset. Additionally, he testified, the payments are
not funded. The firm does not maintain any capital, so
the payments are paid out from future earnings. He
further testified that payments to a retired partner pursuant to the partnership agreement are not transferable
and not salable.
Harrison also testified regarding numerous contingencies on which the defendant’s receipt of any pay-
4
The plaintiff had proffered Guberman as an expert witness, but, following
an extensive voir dire of Guberman by the defendant’s counsel, the trial
court declined to qualify him as an expert. Like Harrison, Guberman was
unable to arrive at any conclusions regarding the present value of the payments that the defendant might receive upon her retirement.
January 7, 2025 CONNECTICUT LAW JOURNAL Page 10
351 Conn. 1 JANUARY, 2025 9
D. S. v. D. S.
ments pursuant to the partnership agreement depend.
Those contingencies include the termination of the payments altogether, any amendments to the partnership
agreement, any violation by the defendant of the agreement’s noncompete clause, and the firm’s continued
operation.
Most significant, Harrison testified that, pursuant to
the partnership agreement, the firm, ‘‘by the mutual
consent of the then [p]artners constituting at least threefourths in number and having at least 75 [percent] of
the total [p]oints,’’ has the authority unilaterally to end
the program, terminating payments to former partners
at any time. In addition, Harrison testified that there
are several provisions of the partnership agreement,
the amendment of which would impact both the likelihood of a retired partner’s receiving the payments and
the quantity of any such payments. For example, amendments can and have been made to certain of the variables used to calculate a retired partner’s benefit, thus
changing the amount of the resulting payments. Harrison testified that these variables had been reduced
over the years and that the partnership agreement
authorized the firm to make further reductions, all of
which present an additional risk that impacts whether
the firm will make the payments.
Harrison also testified regarding changes the firm had
made to its calculation of an active partner’s expected
benefit. Specifically, in 2020, the firm moved away from
a compensation system based entirely on seniority
(lockstep), replacing that system with one that, instead,
prioritizes a partner’s production level. According to
Harrison, this change meant the firm recognized that
not all partners are equal, and the firm needed to attract
partners who could generate business in order to keep
the firm profitable and ‘‘around for a long . . . time.’’
As to the firm’s continued operation, Harrison observed
that ‘‘twenty-two firms . . . almost [the] size [of the
Page 11 CONNECTICUT LAW JOURNAL January 7, 2025
10 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
defendant’s firm] have disbanded or gone bankrupt
since the financial crisis in 2007.’’ Harrison recognized
that the firm had been around for a long time and was
‘‘top shelf’’ but noted that ‘‘there have been a lot of
good firms that have had problems.’’
A
Our cases have not been entirely consistent as to the
standard of review that governs a trial court’s determination that a particular asset or interest constitutes
marital property for purposes of § 46b-81, which presents a mixed question of law and fact. Several of our
cases arguably have reviewed that determination under
an abuse of discretion standard. See, e.g., Dombrowski
v. Noyes-Dombrowski, 273 Conn. 127, 132–33,
869 A.2d
164 (2005); Smith v. Smith,
249 Conn. 265, 285–88,
752
A.2d 1023 (1999); Eslami v. Eslami,
218 Conn. 801, 808,
591 A.2d 411 (1991). For the most part, however, our
recent decisions have indicated that the question ultimately is one of statutory interpretation—whether a
particular asset or asset class qualifies as ‘‘property’’
for purposes of § 46b-81—and, therefore, is subject to
our plenary review. See, e.g., Reville v. Reville, 312
Conn. 428, 446,
93 A.3d 1076 (2014); Mickey v. Mickey,
292 Conn. 597, 613,
974 A.2d 641 (2009); Bender v.
Bender, 258 Conn. 733, 741,
785 A.2d 197 (2001). We
take this opportunity to clarify the standard.
We have recognized that ‘‘applying the label’’ of
‘‘mixed question of law and fact’’ does not necessarily
resolve the applicable standard of review. Bortner v.
Woodbridge, 250 Conn. 241, 264,
736 A.2d 104 (1999).
As the United States Supreme Court has explained, the
standard of review applicable to mixed questions of
law and fact depends on the nature of the mixed question, and requires us to consider ‘‘which kind of court
. . . is better suited to resolve’’ the question. U.S. Bank,
N.A. v. Village at Lakeridge, LLC, 583 U.S. 387, 395,
January 7, 2025 CONNECTICUT LAW JOURNAL Page 12
351 Conn. 1 JANUARY, 2025 11
D. S. v. D. S.
138 S. Ct. 960,
200 L. Ed. 2d 218 (2018). When the
resolution of the mixed question of law and fact requires
courts to ‘‘expound on the law, particularly by amplifying or elaborating on a broad legal standard,’’ the
standard of review is de novo. Id., 396. Our decisions
addressing the question of whether a particular marital
asset constitutes property for purposes of § 46b-81
invariably have expounded upon the meaning of the
statutory term ‘‘property.’’ Accordingly, the standard of
review of a trial court’s determination whether an asset
is classified as ‘‘property’’ is de novo.
The trial court’s underlying factual findings, however,
are reviewable under a clearly erroneous standard and
will be reversed only if they find no support in the
record or the reviewing court is left with the definite
and firm conviction that a mistake has been made. See,
e.g., FuelCell Energy, Inc. v. Groton, 350 Conn. 1, 14,
323 A.3d 268 (2024); Bornemann v. Bornemann,
245
Conn. 508, 527, 531,
752 A.2d 978 (1998). Lastly, the
question of how these determinations as to any particular asset fit into the mosaic of all the trial court’s financial orders is reviewable for abuse of discretion.
B
We turn our attention, then, to the legal standard
for determining whether a particular interest that was
acquired during the marriage constitutes divisible marital property for purposes of § 46b-81. Section 46b-81
provides in relevant part: ‘‘(a) At the time of entering
a decree annulling or dissolving a marriage . . . the
Superior Court may assign to either spouse all or any
part of the estate of the other spouse.
…
‘‘(c) In fixing the nature and value of the property,
if any, to be assigned, the court, after considering all
the evidence presented by each party, shall consider
Page 13 CONNECTICUT LAW JOURNAL January 7, 2025
12 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
the length of the marriage, the causes for the annulment,
dissolution of the marriage or legal separation, the age,
health, station, occupation, amount and sources of
income, earning capacity, vocational skills, education,
employability, estate, liabilities and needs of each of
the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also
consider the contribution of each of the parties in the
acquisition, preservation or appreciation in value of
their respective estates.’’
Our legislature has not defined the term ‘‘property’’
in § 46b-81, leaving courts to define it. In determining
the equitable distribution of resources under the statute,
courts should engage in a three step process, determining (1) whether the resource is property (classification),
(2) what is the appropriate method for determining the
value of the property (valuation), and, (3) what is the
most equitable distribution of that property between
the parties (distribution). Krafick v. Krafick, 234 Conn.
783, 792–93,
663 A.2d 365 (1995). Over the past one-half century, in considering the classification of marital
assets, this court and the Appellate Court have refined
the definition of what does, and does not, qualify as
marital property for the purposes of § 46b-81. At one
end of the spectrum, it is well established that certain
categories of future interests, such as vested pension
benefits and contractually guaranteed stock options,
qualify as marital property per se, because the holder
has a presently enforceable right to receive them. See,
e.g., Bornemann v. Bornemann, supra, 245 Conn. 517–20
(stock options); Krafick v. Krafick, supra, 793–98 (vested
pension benefits).5 At the other end of the spectrum,
5
We have previously defined the term ‘‘vested’’ to refer to ‘‘pension interests ‘in which an employee has an irrevocable . . . right, in the future, to
receive his or her account balance (under a defined contribution plan), or
his or her accrued benefit (under a defined benefit plan), regardless of
whether the employment relationship continues.’ [3 A. Rutkin, Family Law
and Practice (1995) § 36.13 [2], p. 36-71; see id., § 37.11 [1] [b], pp. 37-157
through 37-159; see also 2 A. Rutkin et al. Valuation and Distribution of
January 7, 2025 CONNECTICUT LAW JOURNAL Page 14
351 Conn. 1 JANUARY, 2025 13
D. S. v. D. S.
certain types of future interests categorically do not
qualify as marital property, because the possessor’s
present interest in them ‘‘is, at best, [a] speculative . . .
[and] inchoate [hope]’’ that has none of the attributes
of property and, instead, constitutes a mere expectancy.
(Internal quotation marks omitted.) Krause v. Krause,
174 Conn. 361, 365,
387 A.2d 548 (1978). Examples of
these include interests in a potential inheritance; see,
e.g., id.; interests in future earnings from a professional
degree; see, e.g., Simmons v. Simmons, 244 Conn. 158,
164,
708 A.2d 949 (1998); and a contingent remainder
interest in a revocable inter vivos trust. See, e.g., Rubin
v. Rubin, 204 Conn. 224, 227–28,
527 A.2d 1184 (1987).
This court has articulated and refined a two part test
by which trial courts may determine, on a case-by-case
basis, whether a potential interest constitutes divisible
marital property under § 46b-81. In the first part of the
Bender test, we ask whether the holder has ‘‘a presently
enforceable right [to receive the interest] . . . based
on contractual principles or a statutory entitlement
. . . .’’ (Citation omitted; emphasis added.) Mickey v.
Mickey, supra,292 Conn. 628 (citing Bender v.
Bender,
supra,258 Conn. 733). If the party has such a right, the
interest is part of the marital estate and is distributable
as property. Mickey v. Mickey, supra, 625. If the party
does not have a presently enforceable right, we proceed
to the second part of the Bender test, which involves
a more fact intensive analysis. See id., 625–27.
The second part of the Bender inquiry is ‘‘built [on
the] foundation’’ established by our prior cases defining
property for purposes of § 46b-81. Bender v. Bender,
supra,258 Conn. 753. In Bender, we explained that an
interest that falls short of a presently enforceable right
nevertheless qualifies as divisible marital property if a
Marital Property (1991) § 23.02 [2] [a], p. 23-8] . . . .’’ (Citation omitted.)
Krafick v. Krafick, supra, 234 Conn. 788–89 n.12.
Page 15 CONNECTICUT LAW JOURNAL January 7, 2025
14 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
party’s expectation in the interest ‘‘as a practical matter,
is sufficiently concrete, reasonable, and justifiable as
to constitute a presently existing property interest for
equitable distribution purposes.’’ Id., 749. This second
prong of the Bender inquiry recognizes that the definition of ‘‘property’’ for purposes of equitable distribution
should not be given a ‘‘narrow construction.’’ (Internal
quotation marks omitted.) Id., 753. We did not purport
in Bender, however, to overrule our prior precedent
defining property for purposes of § 46b-81. See id. The
focus of the inquiry remains on obtaining an enforceable
right in the interest. Our focus in the second prong,
however, is on the likelihood that the holder eventually
will acquire an enforceable right in the interest, that is,
whether the interest will likely vest or whether the
holder will otherwise acquire a definitive right to it. See
Mickey v. Mickey, supra,292 Conn. 628 (‘‘[w]e conclude
that Bender stands for the proposition that, even in the
absence of a presently enforceable right to property
based on contractual principles or a statutory entitlement, a party’s expectant interest in property still may
fall under § 46b-81 if the conditions precedent to the
eventual acquisition of such a definitive right are not
too speculative or unlikely’’).
In Mickey, we collected and synthesized the considerations relevant to a trial court’s assessment of whether
the party’s interest is so speculative that it does not
constitute property for purposes of § 46b-81, or, by contrast, is ‘‘sufficiently concrete, reasonable and justifiable as to constitute a presently existing property interest
for equitable distribution purposes.’’ (Emphasis in original; internal quotation marks omitted.) Id.
Under the second part of the Bender inquiry, a central
question that courts consider is whether the party’s
‘‘right’’ to the interest is one that always can be unilaterally revoked, meaning that the holder will never have
a vested interest, or amended by a third party. That a will
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351 Conn. 1 JANUARY, 2025 15
D. S. v. D. S.
may be revised until the moment of death, or a revocable
trust revoked, explains, in no small part, why those
interests are too speculative to qualify as part of the
marital estate.
We recognize a lack of consistency in our law regarding whether, in assessing what weight should be given
to a third party’s unilateral authority to revoke or modify
a right to a future interest, a trial court should consider
the likelihood that the third party will ever exercise
that authority. In Bender, we considered the likelihood
of exercise relevant to the inquiry. In that case, we
assumed the municipality had the authority to discontinue the pension plan before the interest vested but,
nevertheless, described the exercise as merely a theoretical possibility that did not prevent the unvested
pension from constituting a presently existing property
interest. Bender v. Bender, supra,258 Conn. 749. We
also assumed in Mickey that disability benefits were
terminable at the state’s discretion at any time before
the defendant suffered an injury. Mickey v. Mickey,
supra, 292 Conn. 630–31. In Mickey, however, we stated
that ‘‘the likelihood that the legislature would decide
to modify or terminate the disability benefits . . . is
irrelevant to our analysis,’’ and that what mattered was
simply that it had the authority to do so. (Emphasis
omitted.) Id., 631 n.26. We take this opportunity to clarify that, because the second prong of the Bender inquiry
focuses on the likelihood that a party will eventually
obtain an enforceable legal right, the likelihood that a
third party will exercise its right to unilaterally revoke
or modify a party’s right to a future interest is relevant
to the analysis.
In addition to the authority of a third party to unilaterally terminate a party’s right to receive the future interest, and whether the likelihood that the third party will
exercise its authority is merely theoretical, courts also
consider the nature of other contingencies involved,
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16 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
that is to say, other risks that the party will never obtain
a right to the interest. The nature of these contingencies
or risks sheds light on the reasonableness of the party’s
expectancy in the interest. A prudent person will not
plan her retirement in reliance on the expected receipt
of an income source that can be unilaterally denied to
her, or that she is unlikely ever to receive, or the receipt
of which is subject to incalculable risks. See, e.g., id.,
628–29 and n.22; Dombrowski v. Noyes-Dombrowski,
supra, 273 Conn. 132–33; Bender v.
Bender, supra,258
Conn. 754. This, in turn, may depend on considerations
such as whether a potential income source has been
funded, and whether it is transferable and negotiable.
See, e.g., Simmons v. Simmons, supra, 244 Conn.
168–69.
Finally, in light of the equitable nature of dissolution
proceedings, we have suggested that equitable considerations may be taken into account when assessing
whether a potential interest should be considered part
of the marital estate. In Mickey, we explained that the
trial court must retain ‘‘a measure of flexibility to avoid
a patently unfair result. For example . . . this approach
allows a court to avoid the inequity that would occur if
the marriage dissolves shortly before one of the spouse’s
pensions vests, especially when the pension is the primary marital asset.’’ Mickey v. Mickey, supra,292 Conn.
630. In addition to whether the interest represents the
primary marital asset, other relevant equitable considerations include whether the benefit ‘‘represent[s] the
‘fruits’ of the marital partnership that § 46b-81 is
designed to equitably parse’’; id., 631; and whether it
can be characterized as a form of deferred income that
was earned and otherwise would have been enjoyed during the marriage. See, e.g., id., 632; Bender v. Bender,
supra,258 Conn. 752.
C
With these principles in mind, we turn our attention
to the present case. It is undisputed that the defendant’s
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351 Conn. 1 JANUARY, 2025 17
D. S. v. D. S.
interest in the retirement payments does not qualify as
property under the first part of the Bender test, because
she has no legally enforceable present right to receive
it. The parties disagree, however, as to whether the
defendant’s interest in the retirement payments qualifies as divisible marital property under the second part
of the Bender test. Our review of the relevant considerations persuades us that it does not.
First, not only does the defendant have no presently
enforceable right to receive the retirement payments,
but she never will. At any time, before and even after
the defendant begins to receive retirement payments,
the firm has a contractual right under the partnership
agreement to unilaterally reduce or cancel those payments. The firm reserves the right to terminate the
program for all retired partners, or for an individual
former partner, by a three-quarters vote of the partnership. The firm’s contractual authority to terminate the
program or the defendant’s payments thereunder at
any time and ‘‘without any ascertainable standard’’ was
central to Harrison’s opinion, credited by the trial court,
that the defendant’s interest in her retirement payments
was ‘‘the epitome of a mere expectancy.’’ Harrison testified that he had evaluated the retirement programs of
many law firms and other professional service companies but that he had ‘‘never seen anything like’’ the
provision of the partnership agreement that allowed a
small committee to recommend the suspension of a
partner’s retirement payments if it determined, for any
reason, that paying it would be inequitable to the remaining partners and the firm.
As a result of the firm’s contractual authority to unilaterally terminate the payments, even after the defendant begins to receive them, the defendant’s interest in
the stream of retirement payments will never vest, and
the defendant will never have a contractual cause of
action against the firm for continued payments. The
plaintiff does not contend otherwise. This significant
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18 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
fact distinguishes the defendant’s interest from the
unvested pension at issue in Bender, where we simply
assumed the municipality had the authority to discontinue the pension plan, despite recognizing that the
record was silent on the defendant’s rights under the
collective bargaining agreement and without reference
to any contractual authority providing such authority.
Bender v. Bender, supra,258 Conn. 749 and n.6
In addition, we described in Bender the employer’s
exercise of its assumed authority to discontinue the
pension plan as simply ‘‘theoretically possible . . . .’’
Id., 749. In the present case, however, other risks involving, for example, changes in the firm’s demographics
and compensation structure, support our conclusion
that its exercise of its authority to terminate or amend
the retirement payments is more than a theoretical possibility. The trial court determined that, even assuming
the firm continues to exist in its present form, there
was a real possibility that it would, at some point, cease
paying the retirement payments. That factual finding,
which would be reviewable for clear error if the plaintiff
had challenged it, finds support in Harrison’s and the
defendant’s testimony, both of which the trial court
credited, and business records that had been created
long before the present action was initiated. Such evidence tended to show that, although the firm had never
failed to make payments under the partnership agreement, demographic pressures had resulted in fundamental changes to the firm’s partnership compensation
structure, led to significant cuts in partners’ retirement
payments, and called into question the long-term viability of the program.
Over time, as a result of normal demographic trends,6
the ratio of retired partners to active partners at the
6
See, e.g., R. Zahorsky, ‘‘Pensions Howling at the Door: WolfBlock Dissolution Underlines the Danger,’’ 95 ABA J. (June, 2009) pp. 28, 30 (discussing
unsustainability of unfunded law firm pension plans as baby boom partners retire).
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351 Conn. 1 JANUARY, 2025 19
D. S. v. D. S.
firm has risen steadily. Between 1990 and 2015, the
ratio of retired to active partners had more than tripled.
Equally significant, of the remaining active partners,
the number who were fifty years of age or older was
substantially higher in 2015 than it had been in 1990,
suggesting that the demographic pressures would only
continue to intensify.
The potential impact of these increasing pressures
on the firm’s finances was not merely a matter of speculation. At the time of trial, those pressures already had
resulted in significant changes that, Harrison testified,
were necessary ‘‘to keep this firm from imploding.’’
The firm had made a series of cuts to the retirement
payments, and the result of these ongoing cuts was
that the retirement income received by a partner was
expected to fall by as much as 50 percent between 2015
and 2040, with the average yearly payment (in constant
dollars) dropping to $400,000. In addition, as of January
1, 2021, the firm discontinued its pure lockstep, or
seniority, method of compensating partners and moved
to a modified system that places a premium on partners’
production levels.
Harrison testified that these recent developments
reduced the likelihood that a retired partner would ultimately receive a retirement payment that met the partner’s expectations, or receive one at all. He specifically
testified as to the interrelated nature of the risks, stating
that the transition away from the lockstep method of
compensation, together with fewer active partners having to support more retirees, meant that ‘‘the biggest
and best producers are going to say, ‘why do I want to
be here, let me go to another firm that has funded their
retirement [plans] . . . .’’ Harrison testified that,
despite the firm’s long history and prestige, it might
cease operating. He explained that this was not a mere
theoretical possibility because, in the fourteen years
between the 2007 financial crisis and the date of dissolu-
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D. S. v. D. S.
tion, twenty-two firms of nearly the same size had disbanded or gone bankrupt, more than one and one-half
each year.
The defendant, who was familiar with the firm’s present financial condition at the time of trial, concurred
with Harrison’s view that the contingencies to which
her receipt of the retirement payments was subject
rendered the interest a mere expectancy. According to
the defendant, ‘‘[g]iven that we [had] moved to a modified lockstep compensation system, the current pension
calculation doesn’t really work and is going to have to
be amended at some point. [The] partnership agreement
. . . could be amended and . . . the payments could
be eliminated.’’ The defendant testified that ‘‘those payments are subject to a variety of conditions and uncertainty, and are not necessarily something I can count
on.’’ This testimony is consistent with the 2016 prelitigation presentation, during which the defendant warned
the firm’s partnership that the retirement payments
could be cut by one half over the next twenty-five years
and concluded with a message, one that the trial court
reasonably could have interpreted as a caution to the
partners that they should not rely on the retirement
payments when engaging in retirement planning. At
trial, the defendant characterized the presentation as
showing ‘‘partners how they needed to save for retirement because payments postretirement were uncertain.’’
There was credible evidence, then, that the defendant
did not treat her interest in the retirement payments as
property, in the sense of a reliable source of retirement
income, and that, long before the present action was
commenced, she had, on behalf of the firm, advised her
partners against relying on it.7 Additionally, with the
7
The plaintiff and the dissent construe the defendant’s 2016 presentation
to mean that the firm had taken the steps necessary to shore up its finances.
But the trial court, as the finder of fact, reasonably could have embraced
the interpretation, advanced by both Harrison and the defendant, that the
best case scenario was a significant, ongoing cut in payments and that the
worst case scenario was a total termination of the program.
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351 Conn. 1 JANUARY, 2025 21
D. S. v. D. S.
exception of the plaintiff’s testimony that he and the
defendant had contemplated eventually moving to Wyoming on the basis of the plaintiff’s belief that they would
pay fewer or no taxes on the defendant’s retirement
income, the plaintiff offered no other testimony or evidence that the parties had ever factored in the defendant’s retirement payments when planning for retirement.
Harrison opined, for example, that the defendant’s
retirement payments could amount to ‘‘anything from
zero to a lot of money,’’ and he stated that, if he were
to attempt to place a present value on the expected
payments, the amount would be so low, in light of these
various risks, that he would lose his credibility before
the trial court. For her part, the defendant testified that
the retirement payments ‘‘can, and, in all likelihood,
will be reduced over time. [T]here’s no way to calculate
exactly what those payments will be, if any.’’ (Emphasis
added.) The firm’s executive director, who was responsible for the new partner financial presentations, gave
substantially similar testimony, agreeing that ‘‘no one
can possibly know, within a reasonable degree of certainty, the amount, if any, that [the defendant] may
receive . . . upon her departure from the firm.’’
(Emphasis added.)
Consistent with the testimony of both Harrison and
the defendant, the trial court found that the retirement
payments were ‘‘unique in form and substance . . . .’’
The fact that the firm has struggled with intensifying
demographic pressures and had, shortly before trial
in the present case, transitioned to a new partnership
compensation structure, in tandem with the fact that
the partnership agreement contains the unique escape
valve allowing the firm to terminate payments under
the retirement payments at any time, provides more
than adequate support for the trial court’s determination that ‘‘[the] stream of payments involves variables,
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D. S. v. D. S.
risks and requirements that are not fixed and [are]
impossible to determine,’’ and, therefore, that it was
too speculative to qualify as a presently existing property interest.
The plaintiff claims that the fact that it is impossible
to predict the size of the retirement payments that the
defendant will receive, and, thus, to calculate the present value of the defendant’s interest in those payments
with any certainty, did not preclude the trial court from
classifying it as property because there are other methods of distributing marital assets. See, e.g., Bender v.
Bender, supra,258 Conn. 750 n.7 (noting that, regardless
of length of employee’s service, unvested pension constituted marital property, and observing that ‘‘the trial
court could choose simply not to distribute it because
its value—not its classification—was too insignificant
or conjectural in the marital scheme of things’’ (emphasis added)). According to the plaintiff, if we conclude
that the defendant’s interest in the retirement payments
is not so speculative as to be a mere expectancy, the
trial court could have treated the interest as property
and assigned each party some fixed percentage of whatever payments she ultimately receives. But Harrison
did not merely testify that this range of contingencies
made it impossible to place a present value on the
defendant’s potential retirement payments. Rather, he
concluded that the range and scope of contingencies
rendered the defendant’s receipt of the retirement payments too speculative to qualify as property.8
8
We observe that, even if the trial court had determined that the defendant’s interest in the retirement payments was property, the court would
have been well within its discretion to do exactly what it did and, instead,
award the plaintiff a 25 percent share as alimony. See General Statutes
§ 46b-82 (court may order alimony ‘‘in addition to or in lieu of’’ award of
property (emphasis added)); see also, e.g., Mickey v. Mickey, supra,292
Conn. 630 and n.24 (court has discretion to consider equities of situation
and to fashion alimony award that accounts for marital asset). Because
there is no indication in the record that the trial court contemplated this
alternative approach, any determination by this court regarding the propriety
of any such action by the trial court would require speculation.
January 7, 2025 CONNECTICUT LAW JOURNAL Page 24
351 Conn. 1 JANUARY, 2025 23
D. S. v. D. S.
The plaintiff points to a 2016 email exchange in which
the defendant estimated that, at that time, her retirement payments might have a present value of $14 million. The trial court reasonably could have declined to
afford any weight to that evidence, in light of (1) the
agreement of both parties’ experts that the retirement
payments were impossible to value with any degree of
confidence, (2) the plaintiff’s testimony that her 2016
email likely reflected ‘‘a back of the envelope calculation that one of [her] partners had done,’’ and (3) the
fact that the email exchange itself indicated that it was
predicated on optimistic assumptions as to discount
rates and that, ‘‘with the cutback, the pension isn’t
worth much.’’
Finally, we examine relevant equitable considerations,
such as whether the interest in question is the divorcing
couple’s primary asset or source of retirement security.
That certainly was not the case here. Aside from the
retirement payments, the defendant owned three conventional retirement plans through the firm: a Keogh
plan valued at almost $1.8 million, a 401k plan valued
at over $1.5 million, and a defined benefit pension plan
with an annual benefit of approximately $197,000. The
trial court awarded 35 percent of the value of each of
those plans—well over $1 million—to the plaintiff. And,
notably, the judgment did not deny the plaintiff a share
of the defendant’s retirement payments; he simply
would receive his share of any payments in the form
of alimony, rather than as a property distribution.
Other equitable considerations also weigh in favor
of the trial court’s conclusion that the retirement payments should be treated as a source of potential income
for alimony, rather than a nonmodifiable property distribution. The court found that the plaintiff was entirely
responsible for the breakdown of the marriage, both
financially and relationally. The court found that ‘‘the
plaintiff did not contribute to the acquisition, preserva-
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24 JANUARY, 2025 351 Conn. 1
D. S. v. D. S.
tion or appreciation of the parties’ assets [but, rather,
that] he was the primary reason the assets were recklessly depleted and wasted.’’ The court faulted the plaintiff’s ‘‘rage,’’ ‘‘verbal intimidation,’’ ‘‘constant arguing
and abusive behavior,’’ and ‘‘obsessive, jealous, threatening’’ conduct for the breakdown of the marriage, concluding that the plaintiff had ‘‘terrorized the family
emotionally and physically with his rage, explosive
anger, control and jealousy.’’ The court also found that
the plaintiff had an earning capacity of ‘‘$150,000 after
about six months of [short-term or] gig assignments
and selective placement by a professional placement
service.’’ Nevertheless, the court granted the plaintiff
generous property and alimony awards and required
the defendant to assume the majority of the couple’s
debts. The plaintiff will not be left destitute, and he did
not suffer any injustice, as a result of the trial court’s
property distribution and alimony awards.
In conclusion, there was adequate support in the
record for the trial court’s factual findings. On this factual record, and in light of the trial court’s credibility
determinations, we conclude that the trial court correctly determined that the defendant’s receipt of the
retirement payments was too speculative to constitute
property for purposes of § 46b-81.9
We have two primary disagreements with the dissenting opinion. First, although, if we had been the
triers of fact, our own findings might be guided by the
same sorts of commonsense intuitions that animate
9
The plaintiff contends that the conclusion that the defendant’s interest
in the retirement payments does not qualify as divisible marital property is
in tension with the determination reached by several other courts that
substantially similar retirement plans are marital property. See, e.g., Hussey
v. Hussey, Docket No. FST-FA-XX-XXXXXXX-S, 2003 WL 21494762, *4 (Conn.
Super. June 11, 2003); Douglas v. Douglas, 281 App. Div. 2d 709, 712–13,
722 N.Y.S.2d 87 (2001); Wright v. Wright,
61 Va. App. 432, 451–53,
737 S.E.2d
519 (2013). None of those decisions is binding on this court, however, and
each is readily distinguishable.
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351 Conn. 1 JANUARY, 2025 25
D. S. v. D. S.
much of the dissent, as an appellate tribunal, we must
accept, unless clearly erroneous, the factual findings
and credibility determinations made by the trial court.
Those findings firmly ground the trial court’s determination that the defendant’s interest in the retirement payments is too speculative to qualify as present marital
property. Second, with respect to the governing legal
principles as applied to the facts found by the trial
court, we have a fundamental disagreement as to what
constitutes property under § 46b-81, as construed by
this court in Bender and its progeny.
As we discussed, although the property question ultimately is a legal one, to the extent that it hinges on
underlying factual findings, credibility determinations,
and assessments of the probability of various outcomes,
we defer to the trial court unless its findings and determinations are clearly erroneous. The dissent relies
throughout its opinion on its own assumptions and
determinations regarding the defendant and her law
firm, untethered from the trial court’s memorandum of
decision, everything from the firm being ‘‘among the
most profitable . . . in the world’’ to ‘‘shock’’ at anyone
questioning its financial future.
At the same time, despite the lack of any claim in
this appeal that the trial court’s factual findings and
credibility determinations were clearly erroneous, the
dissent affords no deference to the findings that the
trial court did make, such as the court’s determination
that the defendant’s expert witness was credible and
its reliance on that expert’s testimony in concluding
that the defendant’s interest amounted to a mere expectancy. Harrison provided detailed testimony regarding
the unique nature of the partnership agreement and the
retirement payments. He also testified without objection that, on the basis of his analysis, the retirement
payments were a mere expectancy. After stating that
it credited Harrison’s testimony, the trial court found:
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D. S. v. D. S.
‘‘This stream of payments involves variables, risks and
requirements that are not fixed and impossible to determine at this time. This future income is not carried as
a liability by the law firm on [its] books, not guaranteed,
not transferable, not salable, not funded and can be
entirely eliminated at any time. Thus, its value today is
found to be a mere expectancy.’’ The dissent’s analysis
rejects the trial court’s determination to credit Harrison’s testimony, despite the lack of any challenge to
that determination in this appeal.10
In addition to being grounded on an improper rejection of the factual findings and credibility determinations of the trial court, the dissent’s analysis is predicated
on an incorrect premise: that, pursuant to Bender,
retirement benefits of all types qualify as marital property per se. Neither Bender nor any of the subsequent
cases applying its expanded understanding of marital
property support the dissent’s reading of that case.
When this court considered in Bender whether unvested
government pension benefits qualified as property subject to equitable distribution pursuant to § 46b-81, it
could have adopted a per se rule that retirement benefits
qualify as marital property. It did not. Instead, as we
explained previously in this opinion, the second part
of the Bender inquiry requires trial courts to engage
10
The dissent contends that Harrison’s testimony that the defendant’s
interest in the retirement payments is ‘‘the epitome of a mere expectancy’’
went to the ‘‘ultimate legal issue’’ in the case and is entitled to no weight.
As we noted, the plaintiff’s counsel did not object to this testimony, and
the plaintiff does not in this appeal challenge its admission into evidence.
Therefore, whether the court abused its discretion in admitting this single
statement is not before this court. We note, however, that the finder of fact
is an experienced trial judge, and, notwithstanding the dissent’s assertions
to the contrary, it is clear from the record and the memorandum of decision
that the trial court made an independent determination of whether the
retirement payments were property under the statute and did not merely
rely on Harrison’s statement that the interest was a mere expectancy. The
trial court also credited the testimony of the defendant, who was familiar
with the firm’s financial condition at the time of trial and who echoed
Harrison’s analysis that it was possible that the firm would have to terminate
the retirement payments altogether.
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351 Conn. 1 JANUARY, 2025 27
D. S. v. D. S.
in a probabilistic assessment of the claimed property
interest to determine whether the interest is too speculative to constitute property subject to equitable division.11 That is, pursuant to Bender and its progeny, in
determining whether a retirement benefit constitutes
property under § 46b-81, trial courts must assess the
likelihood that the owning spouse will ever acquire a
legally enforceable right to that retirement benefit. See
Mickey v. Mickey, supra,292 Conn. 628 (‘‘Bender stands
for the proposition that, even in the absence of a presently enforceable right to property based on contractual
principles or a statutory entitlement, a party’s expectant
interest in property still may fall under § 46b-81 if the
conditions precedent to the eventual acquisition of such
a definitive right are not too speculative or unlikely’’);
id., 623 n.19 (question turns on whether third party
can unilaterally revoke interest); see also id., 641 n.8
(Norcott, J., concurring and dissenting) (‘‘[U]nder the
second prong of Bender . . . our inquiry properly
would focus on the likelihood that an enforceable right
to such benefits would be obtained . . . and not on
11
As the present case illustrates—and as this court may not have contemplated when crafting its rule in Bender—retirement benefits come in myriad
forms, some of which defy a probabilistic assessment. One treatise has
observed that, ‘‘[i]n recent years . . . there is now a broad general consensus that retirement plans of all types . . . constitute property’’ for purposes
of equitable distribution. (Emphasis altered.) 2 B. Turner, Equitable Distribution of Property (3d Ed. 2005) § 6:22, p. 135; see, e.g., Ala. Code § 30-2-51
(b) (1) (Supp. 2023) (‘‘The marital estate is subject to equitable division and
distribution. Unless the parties agree otherwise, and except as otherwise
provided by federal or state law, the marital estate includes any interest,
whether vested or unvested, either spouse has acquired, received, accumulated, or earned during the marriage in any and all individual, joint, or
group retirement benefits including, but not limited to, any retirement plans,
retirement accounts, pensions . . . .’’); Fla. Stat. Ann. § 61.075 (6) (West
2019) (‘‘[a]s used in this section . . . (a) 1. ‘[m]arital assets and liabilities’
include . . . e. [a]ll vested and nonvested benefits, rights, and funds accrued
during the marriage in retirement, pension, profit-sharing, annuity, deferred
compensation, and insurance plans and programs’’). Neither of the parties,
however, has asked this court to revisit Bender or to adopt a per se rule
that retirement benefits of all types accrued during the marriage constitute
property, a step that would be necessary in order to adopt the dissent’s
position.
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D. S. v. D. S.
whether the benefits were likely actually to be received.
See Bender v. Bender, supra, 258 Conn. 749–50 (analyzing likelihood that defendant would obtain enforceable
right to unvested pension benefits, and not likelihood
that such benefits subsequently would be received).’’
(Emphasis omitted.)).
Nor do two other cases cited by the dissent, Reville v.
Reville, supra, 312 Conn. 428, and Tilsen v. Benson,
347
Conn. 758,
299 A.3d 1096 (2023), demand a different result.
In Reville, in one brief aside, this court suggested that,
under Bender, the trial court would have been required
to treat an unvested pension as distributable property.
See Reville v. Reville, supra, 458. That comment, however,
was dictum, in light of our repeated statements in that
decision that resolving the property question was not
necessary to the resolution of the case. Id., 458–59. The
comment also was made without the benefit of any discussion of the relevant considerations summarized in Mickey
and, indeed, without any analysis of the specific details
of the plan. To the extent that our statement in Reville
was predicated on a view that any unvested retirement
plan or income source categorically qualifies as marital
property, we again clarify that, under Bender and Mickey,
whether an unvested plan qualifies as marital property
requires a fact-specific analysis according to the considerations discussed in those cases. See, e.g., Czarzasty v.
Czarzasty, 101 Conn. App. 583, 594,
922 A.2d 272 (requiring case-by-case analysis under § 46b-81), cert. denied,
284 Conn. 902,
931 A.2d 262 (2007).
The dissent also cites Tilsen for the proposition that
distributions from a limited partnership were marital property, even though the plaintiff in that case never would
obtain an enforceable right to receive those distributions
under the partnership agreement. That characterization
glosses over the fact that this court never determined that
the interest at issue in Tilsen was property. Rather, we
relied on the parties’ stipulation that it be treated as such.
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351 Conn. 1 JANUARY, 2025 29
D. S. v. D. S.
See Tilsen v. Benson, supra,347 Conn. 806. Moreover,
to the extent that the trial court in that case made any
independent findings concerning the property question,
those findings, contained in a footnote, were dicta to
the effect that the parties previously had relied on the
distributions as part of their budget and as a source of
retirement savings. See id., 804, 806 n.26. In that regard,
Tilsen simply exemplifies the equitable exception that
both Bender and Mickey left open, and is readily distinguished from the present case, in which the defendant’s
testimony, credited by the trial court, established that she
did not view the retirement payments as something she
could ‘‘count on.’’
II
The plaintiff next claims that the trial court abused its
discretion by awarding alimony that was specific to the
defendant’s employment at one particular firm.12 On the
12
The plaintiff also claims that the trial court improperly delegated its
authority by ordering that the defendant’s alimony obligation would automatically terminate when she was no longer employed as an active partner at
the firm. Specifically, the plaintiff claims that the alimony order unlawfully
permits the defendant to stop paying alimony, without seeking approval
from the court, simply by changing her employment. The trial court’s order
in the present case stands in sharp contrast to the one at issue in this court’s
recent decision in R. H. v. M. H., 350 Conn. 432, 433,
324 A.3d 720 (2024),
in which we reversed in part the judgment of the trial court on the basis
that the court improperly delegated its authority when it gave a parent
the authority to ‘‘decide the nature and scope of the visitation of his exspouse . . . .’’
In the present case, the court’s order did not give the defendant the
authority to make a binding decision as to the terms of her alimony obligation
to the plaintiff. The trial court, not the defendant, determined the appropriate
amount of alimony and then articulated the circumstances under which it
would terminate. The court concluded that the plaintiff should receive alimony as long as the defendant is employed as an active partner at her
firm or is receiving retirement payments pursuant to the firm’s partnership
agreement. Although the defendant has some measure of control over when
these requirements would no longer be satisfied, the determination of the
conditions themselves was not left to her discretion. Accordingly, we conclude that the court did not delegate its authority to the defendant. We find
the plaintiff’s arguments to the contrary unpersuasive.
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D. S. v. D. S.
basis of the facts of this case, and applying the required
deferential standard of review, we disagree.
‘‘An appellate court will not disturb a trial court’s orders
in domestic relations cases unless the court has abused
its discretion or it is found that it could not reasonably
conclude as it did . . . . In determining whether a trial
court has abused its discretion in domestic relations matters, we allow every reasonable presumption in favor of
the correctness of its action.’’ (Internal quotation marks
omitted.) Birkhold v. Birkhold, 343 Conn. 786, 808–809,
276 A.3d 414 (2022). ‘‘In determining whether alimony
shall be awarded, and the duration and amount of the
award, the court shall consider the evidence presented
by each party and shall consider the length of the marriage,
the causes for the annulment, dissolution of the marriage
or legal separation, the age, health, station, occupation,
amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs
of each of the parties and the award, if any, which the
court may make pursuant to section 46b-81, and, in the
case of a parent to whom the custody of minor children
has been awarded, the desirability and feasibility of such
parent’s securing employment.’’ General Statutes § 46b-
82 (a). Although our review is limited to whether the court
correctly applied the law and reasonably concluded as it
did, it is ‘‘well established that, in awarding alimony, the
trial court must take into account all the statutory factors
enumerated in . . . § 46b-82 (a) and that its failure to do
so constitutes an abuse of discretion.’’ (Footnote omitted.)
Oudheusden v. Oudheusden, 338 Conn. 761, 768–69,
259
A.3d 598 (2021). ‘‘The trial court does not need to give
each factor equal weight or make express findings as to
each factor, but it must consider each factor. . . . In
addition, it is a long settled principle that the defendant’s
ability to pay is a material consideration in formulating
financial awards. . . . Finally, the trial court’s financial
orders must be consistent with the purpose of alimony:
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351 Conn. 1 JANUARY, 2025 31
D. S. v. D. S.
to provide continuing support for the nonpaying spouse,
who is entitled to maintain the standard of living enjoyed
during the marriage as closely as possible. . . . When
exercising its broad, equitable, remedial powers in domestic relations cases, a court must examine both the public
policy implicated and the basic elements of fairness.’’
(Citations omitted; internal quotation marks omitted.)
Id., 769.
Under the trial court’s alimony order, the duration and
amount of alimony are contingent on the defendant’s
being either an active partner in the firm or a retired
partner receiving retirement payments. That is, the initial
alimony award (after the first twelve months postdissolution) in the amount of $30,000 per month will cease when
the defendant is no longer an active partner in the firm.
After the defendant ceases to be an active partner, to the
extent that she receives the retirement payments pursuant
to the partnership agreement, she is obligated to pay the
plaintiff alimony in the amount of 25 percent of her net
after-tax income. The plaintiff claims that this order
improperly conditions the defendant’s alimony obligation
on her association with the firm, either as an active or
retired partner receiving the retirement payments.
The alimony order in the present case reflects the trial
court’s intention to ensure that the plaintiff would be
financially supported for a limited time period, specifically, while the defendant remained an active partner at
the firm and, thereafter, if and during the time that the
defendant received the retirement payments from the firm.
The trial court explained that the purpose of the duration and amount of its alimony order was to ‘‘provide
the plaintiff with the financial incentive to initiate a
good faith job search and acquire employment commensurate with his earning capacity so that he may contribute toward his own expenses.’’
The record reveals that the trial court weighed the
appropriate statutory and equitable factors in crafting
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D. S. v. D. S.
its alimony order. The trial court described the parties’
financial circumstances as ‘‘dire’’ and found that, beginning in 2016, the plaintiff’s spending habits ‘‘accelerated
considerably and were out of control.’’ The plaintiff had
voluntarily been out of work for eighteen years and
had not sought employment since 2008. The plaintiff
explained his refusal to seek employment by contending
that he was responsible for caring for the parties’ children while the defendant worked. Although such an
arrangement would not be unreasonable, the court
explicitly rejected the plaintiff’s contention that he was
too busy in this role to secure a job. At the time of the
trial in 2021, the defendant had, since 2018, been paying
the plaintiff pendente lite monthly alimony of $37,500
per month. On the basis of the expert testimony of a
psychologist, the court determined, however, that the
plaintiff had an earning capacity of $150,000 after about
six months of ‘‘gig assignments . . . .’’ Although the
court acknowledged that, given the plaintiff’s age and
medical concerns, a ‘‘focused genuine effort’’ on his part
would be necessary to find productive employment, it
nevertheless found that he would be able to do so,
provided he did make such an effort.
The trial court also concluded that the plaintiff was
‘‘solely responsible and at fault’’ for the breakdown of
the marriage and that the ‘‘emotional cost’’ he inflicted
on the defendant and the family could not be measured.
The court found that ‘‘[t]he plaintiff’s behavior destroyed
the love, respect and foundation of this marriage.’’ The
court noted that the plaintiff had ‘‘terrorized the family
emotionally and physically with his rage, explosive
anger, control and jealousy,’’ and characterized him as
‘‘a bully who verbally, physically and financially abused
the defendant and exposed their children to his deportment.’’ The trial court found that, during the marriage,
the defendant ‘‘paid and paid and paid as the plaintiff
[had] become her biggest creditor.’’ The trial court
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351 Conn. 1 JANUARY, 2025 33
D. S. v. D. S.
described the plaintiff as the primary reason the marital
assets were recklessly depleted and wasted. The trial
court’s memorandum of decision describes a ‘‘rampage’’
that included, despite the defendant’s efforts to curb
the plaintiff’s spending, ‘‘tens of thousands of dollars
in credit card charges each month at restaurants, traveling, buying expensive designer clothing and gifts, and
leasing expensive foreign cars (and horses) . . . .’’ The
trial court noted that the defendant struggled to keep
up with the bills and had no alternative but to regularly
secure ‘‘enormous loans to meet the [plaintiff’s] extravagant spending behavior’’ and that, as a result, the defendant was ‘‘left dealing with carrying debt that [was]
overwhelming . . . .’’
We have previously observed that, although alimony
‘‘is not to be considered either as a reward for virtue
or as a punishment for wrongdoing, a spouse whose
conduct has contributed substantially to the breakdown
of the marriage should not expect to receive financial
kudos for his or her misconduct.’’ Robinson v. Robinson, 187 Conn. 70, 72,
444 A.2d 234 (1982). There is
no indication that the court fashioned the defendant’s
alimony with an intent to punish the plaintiff for his
behavior. But, in light of the foregoing factors—including the plaintiff’s ‘‘considerable’’ potential to earn his
own income on the basis of his ‘‘personal effort’’ and
his sole responsibility for the breakdown of the marriage—the limitations imposed by the court were an
appropriate exercise of its discretion.
The plaintiff, however, challenges the duration of
the alimony order, insofar as it is contingent on the
defendant’s affiliation with the firm. According to the
plaintiff, the trial court abused its discretion in tying
the alimony award to the defendant’s being an active
partner at the firm, because she could leave the firm
at any time.
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D. S. v. D. S.
It is well established that a trial court may award time
limited alimony for the purpose of allowing a spouse
to become self-sufficient. See, e.g., Dan v. Dan, 315
Conn. 1, 11,
105 A.3d 118 (2014) (‘‘[u]nderlying the concept of time limited alimony is the sound policy that
such awards may provide an incentive for the spouse
receiving support to use diligence in procuring training
or skills necessary to attain self-sufficiency’’ (internal
quotation marks omitted)); Bornemann v. Bornemann,
supra,245 Conn. 539 (‘‘rehabilitative alimony, or time
limited alimony, is alimony that is awarded primarily
for the purpose of allowing the spouse who receives it
to obtain further education, training, or other skills
necessary to attain self-sufficiency’’).
The fact that the plaintiff has suggested hypothetical
scenarios in which he could be disadvantaged by the
conditions of the alimony order does not render the
order unreasonable. Although the plaintiff introduced
evidence that, in 2016, he and the defendant had discussed some of the potential financial implications that
could result if she were to leave her firm, she never
did so. Rather, the defendant testified that she did not
know when she would retire. She also stated, however,
that she was ‘‘unlikely to be able to work . . . past
sixty-two’’ because ‘‘[t]he average retirement age at [the
firm] is sixty.’’ The defendant never testified that she
planned to leave the firm before her retirement. The
defendant described that her amended proposed order
with respect to alimony was intended to give her some
‘‘breathing room’’ to pay down debts while she was still
an active partner in the firm, because she would be
unlikely to work at the firm past the age of sixty-two.
The defendant also testified that the age of sixty-two
was significant because, at that time, she would no
longer be receiving income from the firm. Although she
would then be entitled to retirement payments under
the partnership agreement, the defendant noted that
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D. S. v. D. S.
‘‘those payments are subject to a variety of conditions
and uncertainty, and are not necessarily something I
can count on.’’ The trial court found that the defendant’s
testimony was ‘‘credible and reliable.’’ Accordingly, it
fashioned an order based on the premise that the defendant would continue to be employed as an active partner at her firm for approximately five more years before
retiring, during which time the plaintiff would be entitled to monthly payments of $30,000 in alimony. Furthermore, the court ordered that the plaintiff would be
entitled, limited by either his or the defendant’s death, to
a percentage of any retirement payments the defendant
might receive, providing him with additional, potentially
long-term, support. The trial court did not abuse its
discretion by limiting the duration of the plaintiff’s first
alimony award to the duration of the defendant’s employment as an active partner at the firm and the plaintiff’s
second alimony award to the defendant’s potential
receipt of the retirement payments. Provided the plaintiff obtained a job and adjusted his lifestyle, the court
anticipated that such an arrangement would allow him
to ‘‘live comfortably.’’ Contrary to the plaintiff’s assertions, he has not demonstrated that this order was irrational or inconsistent with the purpose of the alimony
statute.
In reviewing an alimony order, we do not substitute
our judgment for that of the trial court, which is in
the best position to fashion an effective and equitable
arrangement. An award of alimony is permissive, not
mandatory, and ‘‘rest[s] in the sound discretion of the
trial court . . . .’’ Debowsky v. Debowsky, 12 Conn.
App. 525, 526,
532 A.2d 591 (1987). Here, it is apparent
that the trial court considered the various circumstances attending the dissolution of the parties’ marriage and issued an order that would provide the
plaintiff with appropriate financial support. We do not
suggest that conditioning alimony on a party’s relation-
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D. S. v. D. S.
ship with a particular employer is appropriate in every
instance, and this case should not be read to so hold.
Under the unique facts of this case, however, it was
reasonable for the court to expect that the defendant’s
departure from her firm would coincide with her retirement from full-time employment. We therefore conclude that the Appellate Court correctly held that there
was no abuse of discretion.
The judgment of the Appellate Court is affirmed.
In this opinion McDONALD, D’AURIA, MULLINS and
ALEXANDER, Js., concurred.
