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DEBRA S. GERSHMAN v. DONALD GERSHMAN (SC 17924)
Rogers, C. J., and Norcott, Vertefeuille, Zarella and Schaller, Js. Argued September 20, 2007--officially released April 8, 2008

Steven D. Ecker, for the appellant (defendant). Gerald A. Roisman, with whom, on the brief, was Edith F. McClure, for the appellee (defendant).

Opinion

VERTEFEUILLE, J. The dispositive issue in this appeal1 is whether the trial court properly concluded that the defendant had dissipated marital assets where there was no evidence that the defendant had engaged in financial misconduct for a nonmarital purpose. We conclude that the trial court improperly determined that the defendant had dissipated marital assets, and, accordingly, we reverse the judgment of the trial court. The trial court reasonably found the following facts. The plaintiff, Debra S. Gershman, and the defendant, Donald Gershman, were married in 1987. Three children were born during the parties' eighteen year marriage: a son in 1989, and twin daughters in 1996. The plaintiff was employed as an attorney from 1986 to 1992, but stopped working outside the home in 1993 so that she could remain at home to care for her son on a full-time basis. In 1999, the plaintiff began working part-time as an art teacher at a private school, earning an annual salary of $14,000. At the time of trial,2 the plaintiff was still employed part-time as an art teacher. The plaintiff was forty-six years old and in good health. The defendant, who is also a licensed attorney, served as the couple's primary income earner during the marriage. From 1986 to 2005, the defendant was employed first as an attorney, and then worked in real estate development for Konover Properties Corporation (Konover), rising to the position of vice president of that organization. At Konover, the defendant's salary increased from $75,000 in 1986 to $196,000 in 2005.3 The defendant was forty-nine years old and in good health. The defendant's employment with Konover was to terminate in January, 2006, at which time he was to receive a severance package that included one year's salary in addition to one year of health insurance coverage. In 2002, the defendant invested in a business development opportunity (Alkon partnerships) with one of the principals of Konover. The defendant initially had asked the plaintiff to invest some of her separately owned funds in these partnerships, but the plaintiff declined to do so. The defendant thereafter opted to use his own funds to make an initial investment of $105,000.4 At the time of the dissolution of the marriage, the Alkon partnerships were valued at $31,074. The parties purchased their first home, in West Hartford, in 1987. They lived together in this house for several years, but thereafter decided to construct a larger home to accommodate their growing family. The parties moved into their new home on Arlen Way in the West Hartford in 2002 (Arlen Way residence). Although they originally had set a budget of $500,000 to $600,000 for the Arlen Way residence, the construction of the house, which was overseen primarily by the defendant, ulti-

mately cost $994,000, including $50,000 for a construction manager hired by the defendant. The trial court found that the defendant had been primarily responsible for the allegedly excessive cost of the house,5 and that the plaintiff had not been aware of the magnitude of the cost until she filed for divorce in 2004. The house ultimately was sold pendente lite for $787,500. The parties both had substantial, separate financial assets before they were married and at the time of dissolution. The plaintiff's premarital assets, family gifts and inherited assets totaled $1,171,900.87. The total cash value of her assets on her amended financial affidavit at the time of the dissolution trial was approximately $1,796,144. By contrast, the defendant's assets declined over the course of the marriage. Although he entered the marriage with premarital assets, inheritances and family gifts totaling $795,737, his financial affidavit at trial listed total assets of $782,304.72, including a 401 (k) account of $193,275.72, which had accrued during the marriage. When the trial court rendered judgment dissolving the marriage, it entered orders regarding child support, property distribution, alimony and other matters. In issuing its award, the trial court concluded: ``[The defendant] made a bad investment in the Alkon partnerships, paying approximately $123,000 for an asset he now values at $31,074. The court finds that he was primarily responsible for the cost overruns for the home on Arlen Way and [the parties] lost $200,000 on the sale of the home. The matter of the dissipation of family assets has been taken into consideration in the overall asset division.'' This appeal followed. On appeal, the defendant claims that the trial court improperly: (1) determined that he had dissipated marital assets despite the absence of any evidence of financial misconduct for a nonmarital purpose; (2) ordered the defendant to pay 45 percent of the cost of educating the minor children in private schools through the completion of high school despite the defendant's desire that his children attend public school; and (3) failed to make findings with regard to the plaintiff's earning capacity. We agree with the defendant's first claim, which is dispositive of this appeal. The defendant claims that the trial court improperly concluded that he had dissipated family assets. More specifically, the defendant asserts that his conduct did not constitute dissipation as a matter of law, because dissipation requires a finding that one spouse engaged in financial misconduct, such as intentional waste or selfish financial impropriety, and a further finding that such conduct was motivated by a purpose unrelated to the marriage. The plaintiff asserts, in response, that the trial court properly considered all statutory criteria in its property distribution, only one of which was dissipation of family assets. We agree with the defendant, and,

accordingly, we reverse the judgment of the trial court. We begin our analysis of this claim with the applicable standard of review. Although we generally apply the well settled abuse of discretion standard in domestic relations matters, our review in the present case is plenary because we address the question of what, as a matter of law, constitutes dissipation in the context of a marital dissolution proceeding. Weinstein v. Weinstein, 280 Conn. 764, 770, 911 A.2d 1077 (2007). Generally, dissipation is intended to address the situation in which one spouse conceals, conveys or wastes marital assets in anticipation of a divorce. See 2 B. Turner, Equitable Distribution of Property (3d Ed. 2005)

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