In a Connecticut divorce, what is the valuation date for the couple’s primary residence?

"In a dissolution action, marital property is valued as of the date of dissolution, not the date of separation. Tobey v. Tobey, 165 Conn. 742, 748-49, 345 A.2d 21 (1974); Cuneo v. Cuneo, 12 Conn. App. 702, 533 A.2d 1226 (1987). [This] requirement is simply part of the

[59 Conn. App. 662]

broader principle that the financial awards in a marital dissolution case should be based on the parties' current financial circumstances to the extent reasonably possible." (Internal quotation marks omitted.) Zern v. Zern, 15 Conn. App. 292, 296, 544 A.2d 244 (1988); see also General Statutes § 46b-81.

(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either spouse all or any part of the estate of the other spouse. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either spouse, when in the judgment of the court it is the proper mode to carry the decree into effect.

(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.

(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 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.

The division of property in dissolution proceedings is governed by General Statutes § 46b-81(a), which provides in relevant part: "At the time of entering a decree ... dissolving a marriage ... the Superior Court may assign to either spouse all or any part of the estate of the other spouse." (Emphasis added.) Our

[184 Conn.App. 522]

Supreme Court has recognized that "[t]he only temporal reference in the enabling legislation refers us to the time of the decree as controlling the entry of financial orders. It is neither unreasonable nor illogical, therefore, to conclude that the same date is to be used in determining the value of the marital assets assigned by the trial court to the parties." Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990). Accordingly, "[i]n the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce is the proper time by which to determine the value of the estate of the parties upon which to base the division of property." (Internal quotation marks omitted.) Bruno v. Bruno, 132 Conn. App. 339, 354, 31 A.3d 860 (2011); see also Kremenitzer v. Kremenitzer, 81 Conn. App. 135, 139, 838 A.2d 1026 (2004).

Nevertheless, the plaintiff claims that the trial court improperly determined that the loss to the marital estate

[326 Conn. 108]

was $3.5

[161 A.3d 1256]

million. He claims that the trial court was required to calculate the loss to the marital estate by considering the value that the stock shares and options would have had on the date of the dissolution decree, September, 2009, rather than at the time of the remand trial in February, 2014. For support, he relies on Sunbury v. Sunbury, 216 Conn. 673, 583 A.2d 636 (1990), in which we determined that a trial court issuing new property distribution orders on remand from an appellate court must divide the marital assets based on their value as of the original date of the dissolution decree, rather than based on their value at the time of any trial after remand. Id., at 674, 676, 583 A.2d 636. We explained that, when dividing property pursuant to § 46b–81, "[i]n the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties [on] which to base the division of property. ... An increase in the value of the property following a dissolution does not constitute such an exceptional intervening circumstance." (Citation omitted; internal quotation marks omitted.) Id., at 676, 583 A.2d 636.

Although in this case we are concerned with the interpretation of a separation agreement, it is useful to review cases where no separation agreement exists, and a court determines the distribution of assets. In the absence of any exceptional intervening circumstances, the date a dissolution of marriage is granted is the proper time to determine the value of the parties' estate upon which to base division. An increase in the value of property following the date of dissolution does not constitute an exceptional circumstance. Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990).⁴

[81 Conn. App. 140]

Logically, there is no reason why the same date should not be used when there has been a decrease in the value of property. The usual rule in the interpretation of dissolution judgments, when no separation agreement exists, is that financial awards are based on the parties' current (date of the judgment) financial circumstances. Wendt v. Wendt, 59 Conn. App. 656, 661, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000); Cuneo v. Cuneo, 12 Conn. App. 702, 709, 533 A.2d 1226 (1987).

The court, however, suggested that exceptional intervening circumstances justified the decision at the retrial not to follow the prescribed course of valuing the marital asset as of the time of dissolution and then distributing that asset. As previously stated, the court considered the dissipation of the asset after the dissolution judgment to constitute such an exceptional circumstance. A postdissolution diminution of assets caused by market forces is not considered to be an exceptional circumstance. See Kremenitzer v. Kremenitzer, supra, 81 Conn. App. at 139–40, 838 A.2d 1026. We fail to see how intentional reduction of the asset could qualify. The wilful dissipation of assets by the defendant in the context of the present case does not constitute such a circumstance. The court erred, then, in concluding that the dissipation of assets constituted an "exceptional intervening circumstance,

[189 Conn.App. 365]

" and in not entering an order distributing the value of the asset as of the date of the original judgment of dissolution.

As a general rule, "§ 46b-81 indicates that it is the date of dissolution, rather than the date of separation, on which the [parties'] marital assets are to be determined." (Internal quotation marks omitted.) Kiniry v. Kiniry, 71 Conn. App. 614, 624-25,803 A.2d 352 (2002), aff'd, 79 Conn. App. 378, 830 A.2d 364 (2003); Benedetto v. Benedetto, 55 Conn. App. 350, 356, 738 A.2d 745 (1999), cert. denied, 252 Conn. 917, 744 A.2d 437 (2000). In Wendt v. Wendt, supra, 59 Conn. App. 656, this court stated that valuation as of the date of dissolution "is simply part of the broader principle that the financial awards in a marital dissolution case should be based on the parties' current financial circumstances to the extent reasonably possible." (Internal quotation marks omitted.) Id., 661-62. Nevertheless, "[t]he principle that requires the court to value assets as of the date of dissolution does not absolutely preclude the court from considering the significance of the date of separation. . . . [T]he date of separation may be of significance in determining what is equitable at the time of distribution. In distributing property . . . the court is instructed to consider the contribution of each spouse in the acquisition, preservation and appreciation of the marital estate. After the date of separation, it is not difficult to conceive that one spouse may acquire a particular asset without any contribution from the other spouse." (Internal quotation marks omitted.) Id., 663-64.