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*********************************************** 
BEATRICE FORGIONE v. MENNATO FORGIONE

(AC 36991)

Keller, Bright and Beach, Js.

Syllabus

The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court

opening the judgment of dissolution and reissuing financial orders. He

claimed that the court erred in its method of dividing the parties’ assets

because it failed to take into account an advance payment made by the

plaintiff to the defendant against the defendant’s equitable distribution

and the resultant transfer of equity in the marital residence to the plaintiff. On appeal, this court had determined that, pursuant to statute (§ 46b86 [a]), the trial court lacked subject matter jurisdiction to open the

dissolution judgment for the purpose of redividing the parties’ marital

asssets and, accordingly, vacated the court’s judgment and remanded

the case for further proceedings. Thereafter, our Supreme Court granted

the plaintiff’s petition for certification to appeal and remanded the case

to this court for reconsideration in light of Reinke v. Sing (328 Conn.

376). On remand, held:

1. Where, as here, the parties entered into a postjudgment stipulation to

open the dissolution judgment so that the court could address anew all

financial matters, including the division of assets, the trial court had

subject matter jurisdiction and properly exercised its statutory authority

to open the dissolution judgment.

2. The defendant could not prevail on his claim that the trial court erred in

its method of dividing the parties’ assets; although the defendant did

not preserve his claim properly because he failed to distinctly raise it

before the trial court, this court exercised its discretion to consider the

merits of the claim, which was unavailing, as the trial court considered

the advance payment when it issued new financial orders and ordered

the defendant to transfer his title to the marital residence to the plaintiff,

the defendant misrepresented the plaintiff’s financial assets by affording

her cetain additional cash for the advance payment that was not encumbered by a corresponding liability, there having been no indication that

the plaintiff readily had cash in the amount of the advance payment

available to pay to the defendant, and the record having indicated that

the plaintiff had obtained the advance payment by way of a personal

loan, and, thus, the defendant’s claim that the plaintiff received a net

gain in the amount of the advance payment as a result of the transfer

of assets related to the marital home found no support in the record.

Argued September 11—officially released December 11, 2018

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, Hon. Stanley Novack, judge trial referee, rendered judgment

dissolving the marriage and granting certain other relief;

thereafter, the court, Emons, J., approved the stipulation of the parties to open the judgment as to financial

issues; subsequently, the court, Schofield, J., issued

certain orders; thereafter, the court, Schofield, J.,

granted the defendant’s motion for reargument and

issued certain orders, and the defendant appealed to

this court, which vacated the judgment and remanded

the case for further proceedings; subsequently, the

defendant, on the granting of certification, appealed to

our Supreme Court, which remanded the case to this

court for reconsideration. Affirmed.
Thomas C. C. Sargent, for the appellant (defendant)

Norman A. Roberts, II, with whom, on the brief, was

Tara C. Dugo, for the appellee (plaintiff)
Opinion

BRIGHT, J. This case returns to us on remand from

our Supreme Court.1 The defendant appeals from the

judgment of the trial court opening the judgment of

dissolution and reissuing financial orders. On appeal,

the defendant claims that the trial court erred in its

method of dividing the parties’ assets because it failed

to take into account an advance payment made by the

plaintiff to the defendant. Although the defendant raises

this claim for the first time on appeal, we exercise our

discretion to consider the claim on the merits, and we

affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. On

January 16, 2008, the plaintiff, Beatrice Forgione, commenced this dissolution action against the defendant,

Mennato Forgione. On July 7, 2008, the parties entered

into a prejudgment stipulation in which they agreed

that the plaintiff would have exclusive possession of

the marital home, and, in exchange, the plaintiff would

pay the defendant $60,000 as an ‘‘advance’’ against the

defendant’s equitable distribution. The $60,000 advance

represented approximately one half of the total equity

in the marital home at that time. The plaintiff later

testified that she obtained the $60,000 by way of a personal loan from one of her friends and, thereafter, paid

the advance to the defendant. This testimony was corroborated by the plaintiff’s itemization of a $60,000 liability, which she specifically identified as a ‘‘[l]oan for

[a]dvance to [h]usband re property [distribution],’’ on

her August 26, 2009 financial affidavit.

On August 26, 2009, the court rendered judgment

dissolving the marriage of the parties. The dissolution

judgment incorporated the parties’ stipulated

agreement that resolved, among other things, the issues

of custody, insurance, distribution of marital assets and

liabilities, child support, and alimony. The parties stipulated, in relevant part, that the defendant would transfer

his interest in the marital residence to the plaintiff in

consideration of the $60,000 advance that the plaintiff

previously had paid to the defendant, and that the parties each would retain the remaining assets listed on

their respective financial affidavits, including ‘‘deferred

compensation’’ plans.

On March 12, 2012, the plaintiff filed a motion to

open the dissolution judgment on the ground that the

defendant intentionally had failed to disclose commissions he had received just prior to the dissolution judgment. On May 30, 2012, the parties entered a

postjudgment stipulation to open the dissolution judgment for the purpose of redetermining ‘‘all issues of a

financial nature . . . .’’ On the same date, the court

approved the stipulation and opened the judgment.

On November 6, 2013, after a three day trial, the court
issued a memorandum of decision in which it entered

new financial orders concerning, among other things,

child support, insurance, property distribution, liabilities, bank accounts and retirement funds, and counsel

fees. As for property distribution, the court, in its new

orders, recognized that the plaintiff previously had paid

the $60,000 advance to the defendant and, thus, ordered

the defendant to transfer his title to the marital residence to the plaintiff. As for bank accounts and retirement funds, the court ordered, in relevant part, that

the ‘‘parties shall equally divide the remaining financial

assets of the marriage.’’ On November 22, 2013, the

defendant filed a motion seeking reargument of the

court’s new financial orders regarding insurance and

sanctions, and clarification as to the operative date that

should be utilized when equalizing the parties’ financial assets.

On February 3, 2014, after a hearing, the court issued

a memorandum of decision addressing the disputes as

to insurance and sanctions, and, further, deferring the

selection of the ‘‘operative date of equalization of financial assets’’ until after the court received additional

briefing from the parties. Accordingly, on February 26,

2014, the plaintiff filed a brief contending that the operative date should be the date of dissolution, August 26,

2009, and proffering a mathematical calculation of the

parties’ financial assets—bank accounts and retirement

funds—on that date. On March 12, 2014, the defendant

filed a brief concurring that the operative date should

be August 26, 2009; however, he disagreed that the

plaintiff’s calculation ‘‘should have been made a part

of the legal memorandum and, therefore, wishe[d] [it]

stricken.’’ The defendant provided no substantive objection to the plaintiff’s calculation, and provided no calculation of his own.

On June 3, 2014, the court issued a memorandum of

decision dividing the ‘‘remaining financial assets of the

marriage.’’ Therein, the court determined that the plaintiff’s financial assets listed on her August 26, 2009 affidavit totaled $45,946, that the defendant’s financial assets

listed on his August 26, 2009 affidavit totaled $135,500,2

and, consequently, the court ordered the defendant to

pay the plaintiff an equalization payment of $44,777.

The court adopted the method of calculation set forth

by the plaintiff in her posttrial brief and only incorporated the financial assets that were itemized in the

‘‘bank accounts’’ and ‘‘deferred compensation plans’’

categories of the parties’ respective affidavits. Thus, the

court’s calculation did not include the $60,000 advance

payment received by the defendant, the $120,000 of

equity in the marital home retained by the plaintiff, or

the $60,000 loan the plaintiff took to make the advance

payment to the defendant.3 This appeal followed. See

footnote 1 of this opinion.

On appeal, the defendant claims that the court erred
in its method of dividing the parties’ financial assets

because it failed to take into consideration the $60,000

advance against the defendant’s equitable distribution

and the resultant transfer of equity in the marital residence to the plaintiff. In response, the plaintiff contends, in relevant part, that we should decline to review

the defendant’s claim because it is raised for the first

time on appeal. We agree with the plaintiff that the

defendant did not preserve his claim properly; nevertheless, pursuant to the factors set forth by our Supreme

Court in Blumberg Associates Worldwide, Inc. v.

Brown & Brown of Connecticut, Inc., 311 Conn. 123,

157–58, 84 A.3d 840 (2014), we will exercise our discretion to consider the claim on the merits. We affirm the

judgment of the trial court.

‘‘It is well settled that [o]ur case law and rules of

practice generally limit [an appellate] court’s review to

issues that are distinctly raised at trial. . . . [O]nly in

[the] most exceptional circumstances can and will this

court consider a claim, constitutional or otherwise, that

has not been raised and decided in the trial court. . . .

The reason for the rule is obvious: to permit a party to

raise a claim on appeal that has not been raised at trial—

after it is too late for the trial court or the opposing

party to address the claim—would encourage trial by

ambuscade, which is unfair to both the trial court and

the opposing party.’’ (Internal quotation marks omitted.) Chief Disciplinary Counsel v. Rozbicki, 326 Conn.

686, 695, 167 A.3d 351 (2017), cert. denied, U.S. ,

138 S. Ct. 2583, 201 L. Ed. 2d 295 (2018); see also Practice

Book § 60-5 (‘‘court shall not be bound to consider a

claim unless it was distinctly raised at the trial or arose

subsequent to the trial’’).

‘‘A claim must be so stated as to bring to the attention

of the court the precise matter on which its decision is

being asked.’’ (Emphasis in original; internal quotation

marks omitted.) State v. Fay, 326 Conn. 742, 766, 167

A.3d 897 (2017). ‘‘[T]he determination of whether a

claim has been properly preserved will depend on a

careful review of the record to ascertain whether the

claim on appeal was articulated below with sufficient

clarity to place the trial court [and the opposing party]

on reasonable notice of that very same claim.’’ (Internal

quotation marks omitted.) Eubanks v. Commissioner

of Correction, 329 Conn. 584, 598, 188 A.3d 702 (2018).

Our Supreme Court addressed this issue on circumstances substantially similar to those presented here in

Intercity Development, LLC v. Andrade, 286 Conn. 177,

182–89, 942 A.2d 1028 (2008). In Intercity Development,

LLC, the plaintiff sought to foreclose on a mechanic’s

lien it had recorded on the defendants’ property in connection with its construction of a house on the property.

Id., 181. The plaintiff sought a judgment in the amount

of $49,933.19 based on the amount it claimed was still

owed under the parties’ contract less the cost of com-
pleting its work. Id., 186–87. The defendants did not

challenge at the trial court the methodology of the plaintiff’s calculation of damages, and the court relied on

that calculation when it rendered judgment for the

plaintiff in the amount of $49,933.19. Id., 188–89. On

appeal to this court, the defendants argued that the

amount of the judgment was in error because it was

not based on the value of the services rendered or

the materials furnished. Intercity Development, LLC v.

Andrade, 96 Conn. App. 608, 609, 901 A.2d 731 (2006),

rev’d, 286 Conn. 177, 182–89, 942 A.2d 1028 (2008). This

court agreed and reversed the judgment of the trial

court. Id., 611–14. After granting certification, our

Supreme Court reversed this court’s decision because

the challenge to the methodology used by the trial court

to calculate the amount of damages was raised for the

first time on appeal. Specifically, our Supreme Court

held that ‘‘[b]ecause the defendants never contested

the plaintiff’s calculation of the lien amount at trial, the

Appellate Court should have declined to review the

defendants’ claim of impropriety in the trial court’s

method of valuation of the lien.’’Intercity Development,

LLC v. Andrade, supra, 188. The court also rejected the

defendants’ claim that the trial court’s error arose only

after trial, and therefore was the proper subject of their

appeal, because the plaintiff’s method of calculation

was set forth in its complaint, trial testimony, and posttrial brief. Id., 188–89.

After a careful review of the record, we conclude,

consistent with our Supreme Court’s analysis in Intercity Development, LLC, that the defendant failed to

raise distinctly the present claim before the trial court.

The defendant did not argue before the trial court that

it should take into account the advance payment, or any

element of the parties’ exchange regarding the marital

home, when dividing the parties’ remaining financial

assets, and he did not proffer any calculation that

included the advance payment. He certainly did not

advocate to the trial court the argument that he has

made on appeal. Although the defendant objected to

the calculation as set forth in the plaintiff’s February

26, 2014 brief, it was on the procedural ground that it

improperly was included in a memorandum of law, not

on the substantive ground he now advances on appeal.

When presented with the plaintiff’s method of calculation, it became the defendant’s responsibility to raise

distinctly his dispute regarding the calculation before

the trial court. See id., 188–89; Histen v. Histen, 98

Conn. App. 729, 736–37, 911 A.2d 348 (2006) (declining

to review claim that trial court made erroneous calculation because claim was never made before trial court).

Indeed, after the court issued its June 3, 2014 decision

containing the purportedly erroneous division, the

defendant did not file a motion seeking to reargue that

decision; rather, the defendant took an appeal therefrom. See Intercity Development, LLC v. Andrade,
supra, 189.

Despite the defendant’s failure to raise his claim properly in the trial court, we exercise our discretion to

reach the merits of the defendant’s claim, which was

briefed by both parties, because ‘‘the minimal requirements for review [have been] met and . . . the party

who raised the unpreserved claim cannot prevail.’’

(Citation omitted; emphasis omitted; footnote omitted.)

Blumberg Associates Worldwide, Inc. v. Brown &

Brown of Connecticut, Inc., supra, 311 Conn. 157–58.4

The record reveals that the defendant’s claim is without

merit. First, contrary to the defendant’s claim, the court

did take the $60,000 advance into consideration when

it issued new financial orders. In the November 6, 2013

memorandum of decision, the court recognized that the

plaintiff previously had paid the $60,000 advance to the

defendant and, thus, ordered the defendant to transfer

his title to the marital residence to the plaintiff. The

defendant acknowledges this fact, yet, still claims on

appeal that the court’s division was unequal.

In support of his claim, the defendant proffers several

calculations that merge the court’s division of the parties’ remaining financial assets with the court’s division

of the marital home. Therein, the defendant misrepresents the plaintiff’s financial assets by affording her an

additional $60,000 of cash for the advance payment,

which was not encumbered by a corresponding liability.

The defendant’s injection of unencumbered cash is

unsupported by the record because there is no indication that the plaintiff readily had $60,000 of cash available to pay to the defendant. To the contrary, the

plaintiff’s testimony and her financial affidavit, which

represent the only evidence in the record relating to

this issue, demonstrate that she obtained the $60,000

by way of a personal loan from a friend. The defendant’s

calculations, however, fail to account for or even consider this evidence. Instead, the defendant’s argument

is based on pure conjecture as to the source of the

advance payment to the defendant. Thus, the premise

of the defendant’s argument—that the plaintiff received

a $60,000 net gain as a result of the transfer of assets

related to the marital home—finds no support in the

record, and is, in fact, contradicted by it. Therefore, we

are unpersuaded by the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 This court previously determined that General Statutes § 46b-86 (a)

deprived the trial court of subject matter jurisdiction to open, pursuant to

the parties’ stipulation, the dissolution judgment for the purpose of redividing

the parties’ marital assets. See Forgione v. Forgione, 162 Conn. App. 1, 129

A.3d 766 (2015), remanded for reconsideration, 328 Conn. 922, 181 A.3d 92

(2018). Subsequently, our Supreme Court granted the plaintiff’s petition for

certification and remanded the case to us with direction to reconsider our

decision in light of Reinke v. Sing, 328 Conn. 376, 179 A.3d 769 (2018)

(holding that § 46b-86 [a] does not deprive trial court of subject matter

jurisdiction, and that trial court properly exercised its statutory authority

under General Statutes § 52-212a to open dissolution judgment because
parties voluntarily submitted to court’s jurisdiction). See Forgione v. Forgione, 328 Conn. 922, 181 A.3d 92 (2018). At the outset, we conclude that the

trial court in the present case had subject matter jurisdiction and properly

exercised its statutory authority because, as in Reinke, the parties entered

into a postjudgment stipulation to open the dissolution judgment so that

the court could address anew all financial matters, including the division

of assets.

2 The defendant updated his August 26, 2009 affidavit in 2013 to reflect,

among other things, the commissions he failed to include in the affidavit

he provided at the time the original judgment of dissolution was entered. The

court relied on the updated affidavit in entering the June 3, 2014 judgment.

3 Although the $120,000 of equity in the marital home and the $60,000

liability incurred by the plaintiff to make the advance payment to the defendant were listed on the plaintiff’s affidavit, the $60,000 advance was not

listed on the defendant’s updated affidavit. The defendant maintains that

he spent the $60,000 advance prior to the date of dissolution and, alternatively, that any remaining funds derived from the advance payment were

retained in his bank account.

4

‘‘Reviewing an unpreserved claim when the party that raised the claim

cannot prevail is appropriate because it cannot prejudice the opposing party

and such review presumably would provide the party who failed to properly

preserve the claim with a sense of finality that the party would not have if

the court declined to review the claim.’’ Blumberg Associates Worldwide,

Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 158 n.28.