******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
REVILLE v. REVILLE—CONCURRENCE AND DISSENT

ZARELLA, J., concurring in part and dissenting in

part. The majority concludes that the trial court improperly denied the motion of the plaintiff, Catherine Reville,

to open and set aside the judgment dissolving her marriage to the defendant, John Reville, on the basis of

allegations that the defendant committed fraud by failing to disclose an unvested pension benefit on his financial affidavits during predissolution settlement negotiations. The majority specifically disagrees with the

trial court’s determination that (1) it was necessary to

resolve the question of whether the benefit constituted

distributable marital property under General Statutes

(Rev. to 2001) § 46b-81 in order to determine whether

the defendant committed fraud, (2) the law at the time

of the dissolution proceedings definitively established

that the benefit did not constitute distributable marital

property, and (3) in light of the foregoing, there was

no need to consider evidence of the value of the benefit

in deciding whether the defendant committed fraud.

Rather, the majority concludes that the defendant was

‘‘legally obligated’’ to disclose the existence and characteristics of the unvested pension benefit during the predissolution settlement negotiations, regardless of

whether the benefit constituted distributable marital

property. The majority also concludes that the trial

court’s decision not to allow expert testimony on the

value of the benefit undermined its factual finding that

the defendant disclosed the benefit to the plaintiff, thus

causing the court to commitreversible evidentiary error

when it determined that the defendant did not commit

fraud. I disagree with these conclusions because the

majority disregards the legal grounds on which the

plaintiff’s motion to open was based, namely, that the

unvested pension benefit constituted distributable marital property and that the defendant’s failure to disclose

it not only caused her to rely to her detriment on a false

representation of his assets, but was a clear violation of

the parties’ separation agreement. The majority also

misconstrues this court’s precedent on the disclosure

of property interests in dissolution proceedings and

takes an untenable position with respect to the trial

court’s factual finding that the defendant disclosed the

benefit to the plaintiff. Accordingly, although I join in

part III of the majority’s opinion regarding the plaintiff’s

burden of proof, I respectfully dissent from parts I

and II.

I

The majority first concludes that the trial court was

not required to determine whether the defendant’s

unvested pension benefit constituted distributable marital property in May, 2001, because ‘‘any retirement or

employment benefit potentially receivable by a party
to a dissolution action should be disclosed [in] that

party’s financial affidavit along with all known details

as to its value, vesting requirements and current status

. . . regardless of whether it . . . [is] classified as distributable marital property.’’ (Emphasis omitted; footnotes omitted.) I disagree.

The majority loses sight of the legal grounds on which

the plaintiff’s motion was based. The plaintiff’s original

motion alleged that the defendant committed fraud

when he failed to disclose in his financial affidavit ‘‘a

significant asset which would have been property subject to division under § 46b-81,’’ specifically, an

unvested pension benefit of substantial value.1

(Emphasis added.) Approximately four months later, the plaintiff requested permission to amend her motion in order

to allege, as a second ground on which to open the

judgment, that the defendant’s failure to disclose the

benefit was a violation of the parties’ separation agreement. Paragraph 13.11 of the separation agreement provided in relevant part: ‘‘If it is established by a preponderance of the evidence that a party misrepresented or

intentionally concealed a property interest, the effect

thereof or an important characteristic thereof, the interest of the concealing party will be transferred in full

to the nonconcealing party and the concealing party

will pay all costs, fees, expenses, attorney’s fees, and

damages of the nonconcealing party caused by said

concealment.’’ (Emphasis added.) The plaintiff noted

that the proposed amendment would allow her to seek

enforcement of the remedies established by paragraph

13.11, which she claimed were ‘‘appropriate and commensurate’’ with the allegations of nondisclosure and

fraud in her original motion.2In other words, a determination that the benefit constituted distributable marital

property on the date of dissolution would allow the

plaintiff to seek 100 percent of the benefit’s value without subjecting all of the parties’ other assets to further

review and distribution by the court. Consequently,

there can be no doubt that the principal issue raised

in the plaintiff’s motion required the trial court to make

an initial determination as to whether the defendant’s

unvested pension benefit constituted distributable marital property.

The language in § 46b-81 also indicates that any

resource3subject to assignment must be identified as

property. As previously stated, the clearly articulated

purpose of the plaintiff’s motion was to obtain the full

value4 of the defendant’s unvested pension benefit

under § 46b-81, which provides in relevant part: ‘‘(c) In

fixing the nature and value of the property, if any, to

be assigned, the court . . . shall consider the length

of the marriage, the causes for the . . . dissolution of

the marriage . . . the age, health, station, occupation,

amount and sources of income, vocational skills,

employability, estate, liabilities and needs of each of

the parties and the opportunity of each for future acqui-
sition of capital assets and income. . . .’’ There is nothing in this language suggesting that a resource that is

subject to assignment can be considered anything other

than property. Accordingly, in addressing the plaintiff’s

claim that the unvested pension benefit was a resource

subject to assignment that should have been disclosed,

the trial court was required under § 46b-81 to determine

initially whether the benefit constituted property.

This threshold determination also was required under

the law that existed when the parties’ divorce was finalized in May, 2001, which is the law that must be applied

in resolving the issues in this case. Prior to that time,

this court consistently took the position that, when it

was unclear whether a particular resource was subject

to division under § 46b-81, a determination first must

be made as to whether it constituted property. For

example, only six years earlier, the court had stated in

Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (1995),

that the ‘‘first’’ step in considering the equitable distribution of resources in a dissolution proceeding is to determine ‘‘whether the resource is property within [the

meaning of] § 46b-81 . . . .’’ Id., 792. Moreover, this

was not a newly created principle but had been articulated and applied before Krafick, and continued to be

applied thereafter. See, e.g., Lopiano v. Lopiano, 247

Conn. 356, 367, 752 A.2d 1000 (1998) (personal injury

award deemed subject to equitable distribution following determination that award constituted property

under § 46b-81); Bornemann v. Bornemann, 245 Conn.

508, 518, 752 A.2d 978 (1998) (unvested stock options

in which employee had enforceable right deemed subject to equitable distribution following determination

that options constituted property under § 46b-81); Simmons v. Simmons, 244 Conn. 158, 168, 708 A.2d 949

(1998)(medical degree not subject to equitable distribution because degree did not constitute property under

§ 46b-81); Rubin v. Rubin, 204 Conn. 224, 225, 232, 527

A.2d 1184 (1987) (interest in revocable inter vivos trust

not subject to equitable distribution because trust did

not constitute property under § 46b-81); Krause v.

Krause, 174 Conn. 361, 364–65, 387 A.2d 548 (1978)

(potential inheritance not subject to equitable distribution because it did not constitute property under predecessor to § 46b-81). Consequently, the trial court

properly began its analysis of the plaintiff’s claim by

considering whether the defendant’s unvested pension

benefit constituted distributable marital property.5

II

The trial court ultimately determined that the defendant ‘‘did not have an ‘existing enforceable right’ in the

[unvested pension benefit], which was, therefore, not

marital property subject to division pursuant to . . .

§ 46b-81.’’ I agree with this conclusion and believe the

plaintiff’s motion should have been denied on that

ground. The trial court nonetheless conducted another
hearing to consider the question of fraud because the

defendant’s failure to bring the benefit to the attention

of the plaintiff and the court during the litigation or to

include it, ‘‘if only as a footnote, on his financial affidavit, prevented the court from fully performing its statutory duty under General Statutes [Rev. to 2001] § 46b66 to find the agreement of the parties to be fair and

equitable under all the circumstances, and/or to otherwise give due consideration to this factor in its award

of alimony.’’6 The majority likewise concludes that the

unvested pension benefit should have been disclosed

in May, 2001, regardless of its status as property. In

reaching that conclusion, the majority relies on (1) the

principle of full and frank disclosure articulated in Billington v. Billington, 220 Conn. 212, 219–22, 595 A.2d

1377 (1991), (2) the discussion of unaccrued pension

rights in Thompson v. Thompson, 183 Conn. 96, 100,

438 A.2d 839 (1981),(3)the holding in Bender v. Bender,

258 Conn. 733, 749, 785 A.2d 197 (2001), that unvested

pension benefits constitute distributable marital property, which the majority claims the defendant should

have anticipated when preparing his financial affidavits,

and (4) several statutory provisions pertaining to financial orders in dissolution proceedings. See General Statutes (Rev. to 2001) § 46b-667

(court shall consider

‘‘financial resources . . . of the spouses’’ in reviewing

separation agreements for fairness and equity); General

Statutes (Rev. to 2001) § 46b-81 (c)8

(court shall consider, inter alia, ‘‘the opportunity of each [party] for

future acquisition of capital assets and income’’ in distributing marital property); General Statutes (Rev. to

2001) 46b-829

(court shall consider, inter alia, ‘‘[each

party’s] amount and sources of income’’ in ordering

alimony). In my view, none of these authorities supports

the majority’s conclusion.

A

The majority first determines that the defendant

should have disclosed the unvested pension benefit in

his financial affidavits under the principle of full and

fair disclosure set forth by this court in Billington. To

the extent the court in Billington articulated a principle

of general applicability that might have guided the trial

court in May, 2001, however, it was limited to the accuracy of the information provided by the parties regarding assets or interests that they knew were subject to

disclosure underthe relevantrules of practice, statutory

provisions, and existing judicial precedent at that time.

It is therefore improper for the majority to rely on

Billington in concluding that the defendant should have

disclosed his unvested pension benefit, regardless of

its status as distributable marital property. As the court

in Billington explained: ‘‘Our [rules of practice have]

long required that at the time a dissolution of marriage

. . . is claimed for a hearing, the moving party shall

file a sworn statement . . . of current income,

expenses, assets and liabilities, and pertinent records
of employment, gross earnings, gross wages and all

other income. . . . The opposing party is required to

file a similar affidavit at least three days before the date

of the hearing . . . .

‘‘Our cases have uniformly emphasized the need for

full and frank disclosure in that affidavit. A court is

entitled to rely upon the truth and accuracy of sworn

statements required by [the rules of practice], and a

misrepresentation of assets and income is a serious and

intolerable dereliction on the part of the affiant which

goes to the very heart of the judicial proceeding. . . .

These sworn statements have great significance in

domestic disputes in that they serve to facilitate the

process and avoid the necessity of testimony in public

by persons still married to each other regarding the

circumstances of their formerly private existence.’’

(Citations omitted; emphasis added; internal quotation

marks omitted.) Billington v. Billington, supra, 220

Conn. 219–20.

The majority takes this language out of context and

applies it in a manner unintended by the Billington

court. The quoted passage in Billington had nothing to

do with whether a particular resource was subject to

disclosure but with the parties’ obligation to disclose

the true value of a resource previously disclosed as

property in their financial affidavits.10 See id. Consequently, it was the quality, amount and accuracy of the

information provided by the defendant regarding the

value of the resource, not whether the resource should

have been disclosed in the first place, to which the

court was referring in the quoted passage. See id. In

fact, to my knowledge, this court never has relied on

the principle of full and fair disclosure, either before

or after Billington, in determining whether a resource

was subject to disclosure when the law was unclear as

to whether it should have been disclosed by the parties

or considered by the trial court in entering its financial

orders. See, e.g., Bender v. Bender, supra, 258 Conn.

749; Lopiano v. Lopiano, supra, 247 Conn. 367;

Bornemann v. Bornemann, supra, 245 Conn. 518; Simmons v. Simmons, supra, 244 Conn. 164; Krafick v.

Krafick, supra, 234 Conn. 798; Rubin v. Rubin, supra,

204 Conn. 232; Thompson v. Thompson, supra, 183

Conn. 100; Krause v. Krause, supra, 174 Conn. 364–65.

Even in Weinstein v. Weinstein, 275 Conn. 671, 882

A.2d 53 (2005), which the majority cites but was decided

four years following dissolution of the parties’ marriage

in the present case, the court invoked the principle

of full and fair disclosure in discussing the allegedly

fraudulent valuation of a resource the defendant previously had disclosed in his financial affidavit, not in

determining whether an undisclosed resource should

have been disclosed by the defendant. Id., 686–88; see

also Friezo v. Friezo, 281 Conn. 166, 181–83, 191–93,

914 A.2d 533 (2007).
The majority does not put the cart before the horse

but, rather, forgets the horse entirely. Only if it had

been undisputed, which was not the case here, or the

trial court had concluded, that the benefit was distributable marital property would it be appropriate for this

court to apply the principle of full and fair disclosure

in determining whether the defendant had committed

fraud. Indeed, that is why, as previously discussed, the

principle never has been applied to settle the question

of whether a disputed resource should be disclosed in

a dissolution proceeding. It is also why the trial court

in the present case properly began its analysis, as other

courts had done numerous times before, by considering

whether the unvested pension benefit constituted distributable marital property.

The standard of full and fair disclosure, when applied

to every resource, including a resource that has never

been identified as property, is too broad to provide the

parties and the courts with adequate guidance as to

when disclosure is required because it provides no basis

for distinguishing between resources that require disclosure and those that do not. In other words, without

more specific guidance, parties would be required to

disclose on their financial affidavits every conceivable

resource, both present and future, to which they might

be entitled, including a medical degree, a potential

inheritance, or an interest in a revocable inter vivos

trust, all of which this court had determined prior to

May, 2001, were not interests subject to equitable distribution. See Simmons v. Simmons, supra, 244 Conn.

168 (medical degree); Rubin v. Rubin, supra, 204 Conn.

232 (revocable inter vivos trust); Krause v. Krause,

supra, 174 Conn. 364–65 (potential inheritance). In contrast, when applied to a resource that the parties agree

must be disclosed, such as income, real estate or a

vested pension benefit, ‘‘full and fair disclosure’’ is easily understood and properly construed as referring to

all of the available information regarding the nature

and value of the resource. Consequently, the majority

improperly relies on the principle of full and fair disclosure in concluding that the defendant should have disclosed his unvested pension benefit to the plaintiff in

May, 2001.

B

The majority also relies on Thompson v. Thompson,

supra, 183 Conn. 96, for the proposition that disclosure

was required because a trial court may consider a party’s ‘‘unaccrued pension benefits as [a] source of future

income when fixing [the] property assignment and alimony orders . . . .’’ Text accompanying footnote 20

of the majority opinion. A close examination of the

record and language in Thompson, however, reveals

that the pension benefits at issue in that case were

vested, unlike in the present case, and, accordingly, the

reasoning in Thompson is inapposite.
In Thompson, one of the issues before the court was

‘‘the extent to which a trial court may take into account

unaccrued pension rights . . . .’’ Thompson v. Thompson, supra, 183 Conn. 97. The plaintiff in Thompson

argued that the trial court improperly had relied on

‘‘evidence of pension benefits [that she] would receive

if she continued to work at her present job until [the]

age [of] sixty-five’’; id., 98; because the pension was

‘‘too speculative in nature to be considered by a court

fashioning alimony and property assignment orders.’’

Id., 100. This court disagreed, reasoning that ‘‘[p]ension

benefits represent a form of deferred compensation for

services rendered. . . . As such, they are conceptually

similar to wages . . . [under §§ 46b-81 and 46b-82]

. . . . Just as current and future wages are properly

taken into account under these statutes, so may unaccrued pension benefits, a source of future income, be

considered. . . .

‘‘The . . . assertion that pension benefits are as

uncertain and speculative as an expected inheritance

is unsound. It is true that the exact amount of the

benefits to be received often will depend upon whether

the employee survives his retirement age, how long he

lives after retirement and what his compensation level

is during his remaining years of service. But these contingencies are susceptible to reasonably accurate quantification. . . . The present value of a pension benefit

may be arrived at by using generally accepted actuarial

principles . . . .’’ (Citations omitted; footnote omitted.) Id., 100–101.

Since Thompson, this court, as well as the majority

in the present case, has misunderstood the decision as

referring to unvested pension benefits. See Krafick v.

Krafick, supra, 234 Conn. 794–95 n.20; Bender v.

Bender, supra, 258 Conn. 743–44. When the court in

Thompson referred to the pension benefits at issue as

‘‘unaccrued’’ benefits, however; Thompson v. Thompson, supra, 183 Conn. 97, 100, 101; it was not referring

to unvested pension benefits but to pension benefits

that would accrue in the future should the plaintiff

continue to work for her employer until the age of sixtyfive under a pension plan in which she already had a

vested interest. See id., 100 n.3 (distinguishing between

‘‘unaccrued’’ pension benefits that would accrue in

future under vested pension and ‘‘[v]ested’’ pension benefits that already have accrued). This conclusion is supported by the record in Thompson and the arguments

in the parties’ appellate briefs, all of which expressly

referred to the plaintiff’s admission that her pension

had ‘‘vested’’ and that the question before the court was

whether the increase in her retirement benefits from

her continued employment until the age of sixty-five

should be considered by the court in its property division and alimony orders. See id., 99–100. Thompson

thus spoke only of future, unaccrued benefits under a
vested pension plan, and, as a result, its reasoning has

no bearing on whether the defendant in the present

case was legally obligated in May, 2001, to disclose his

unvested pension benefit in his financial affidavits.11

C

The majority further claims that, although this court’s

holding in Bender that an unvested pension benefit is

distributable marital property was not retroactive to

May, 2001, the trial court in the present case ‘‘should

have acknowledged that, in early to mid-2001, around

the time the parties were engaged in settlement negotiations, the propertreatment of unvested pension benefits

in dissolution actions was an open question in Connecticut’’; (emphasis omitted); and that ‘‘there were significant indications that it would be decided as it was’’ in

Bender. I disagree.

There are several problems with this reasoning. First,

the possibility in May, 2001, that this court might soon

determine in Bender that unvested pension benefits

constituted distributable marital property is irrelevant

because the parties were required to act on the basis

of the law that existed on the date of dissolution, which,

as the majority concedes, did not yet recognize that

unvested pension benefits constituted property.

Second, to the extent the majority views ‘‘significant

indications’’ as consisting of judicial decisions that

broadened the interpretation of the relevant statutes

and required the disclosure of other types of benefits,

including vested pension benefits; Krafick v. Krafick,

supra, 234 Conn. 798; personal injury awards; Lopiano

v. Lopiano, supra, 247 Conn. 371; and unvested stock

options; Bornemann v. Bornemann, supra, 245 Conn.

518; the fact that this court had been asked repeatedly

to decide whether the parties to a dissolution proceeding had a legal obligation to disclose such benefits

attests to the ambiguity of the applicable law at that

time and the necessity for its continued interpretation

to determine the scope of the disclosure requirement.

Moreover, this court had concluded in several previous

cases that the disputed resource or benefit did not constitute distributable marital property. See Simmons v.

Simmons, supra, 244 Conn. 178 (medical degree);

Rubin v. Rubin, supra, 204 Conn. 232 (interest in revocable inter vivos trust); Krause v. Krause, supra, 174

Conn. 364–65 (potential inheritance). Indeed, of the six

cases decided by this court prior to May, 2001, in which

the parties disagreed as to whether a benefit orresource

was distributable marital property, the court determined in only three cases that the benefit or resource

constituted property. Lopiano v. Lopiano, supra, 247

Conn. 371 (personal injury awards); Bornemann v.

Bornemann, supra, 518 (unvested stock options); Krafick v. Krafick, supra, 798 (vested pension benefits).

Thus, the ‘‘growing trend’’ to which the majority refers

did not necessarily point to a future decision by this
court that a party’s unvested pension benefit constituted property. Finally, insofar as the majority views

the decisions of other jurisdictions that required the

disclosure of unvested pension benefits in 2001 as providing a significant indication regarding this court’s

future decision in Bender, it only highlights the majority’s recognition that unvested pension benefits were

not considered property subject to disclosure in this

jurisdiction during the parties’ predissolution negotiations.

In sum, neitherthe defendant northe trial court could

have anticipated this court’s decision in Bender because

there was no Connecticut case law in May, 2001, suggesting that an unvested pension benefit constituted

distributable marital property. No decision of this court

or the Appellate Court, including Thompson, stated

even in dictum that a trial court should consider an

unvested pension benefit as a property interest in crafting its financial orders. The only references to unvested

pension benefits in cases decided before May, 2001,

appeared in two footnotes in Krafick, one of which

incorrectly construed Thompson; see Krafick v. Krafick, supra, 234 Conn. 794–95 n.20, 798–99 n.23; a footnote in Rosato v. Rosato, 255 Conn. 412, 422 n.16, 766

A.2d 429 (2001); and a passing comment in Smith v.

Smith, 249 Conn. 265, 274, 752 A.2d 1023 (1999), with

Rosato recognizing only months before the separation

agreement in the present case was drafted that the

status of unvested pension benefits remained unresolved in Connecticut.12

Insofar as the majority suggests that the defendant

and the trial court should have anticipated the result

in Bender because of the Appellate Court’s earlier decision in Bender v. Bender, 60 Conn. App. 252, 758 A.2d

890 (2000), aff’d, 258 Conn. 733, 785 A.2d 197 (2001),

the Appellate Court did not address whether unvested

pension benefits constitute property, the issue was not

certified to this court on appeal, and this court, which

ultimately decided to address the issue, had not yet

published its decision in May, 2001. Moreover, Bender

involved a different factual situation than that in the

present case because the vesting requirement in Bender

was twenty-five years of service and the defendant had

been employed for approximately nineteen years at the

time of the parties’ divorce. Id., 253. Finally, this court

never has characterized its decision in Bender as a mere

‘‘incremental [step]’’ in Connecticut’s jurisprudential

development that might have been anticipated. Footnote 29 of the majority opinion. Rather, this court stated

in Bender that ‘‘the issue of whether unvested pension

benefits are property subject to equitable distribution

under § 46b-81 [was] one of first impression for this

court . . . .’’ (Emphasis added.) Bender v. Bender,

supra, 258 Conn. 743. Although there is language in

Bender referring to a ‘‘common theme’’running through

our prior case law; id., 748; the theme to which Bender
referred consisted of the type of analysis employed, not

to a series of similar holdings that would have predicted

the outcome of this court’s decision in Bender.

13 Thus,

although the court in prior cases had considered certain

common factors in determining whether the interest in

question constituted marital property, it was not possible to predict how the court would apply those factors

in a future case to the unresolved question of whether

unvested pension benefits constitute distributable marital property.

The court in Bender also recognized that, despite the

existence of a common theme, our prior case law could

be interpreted in different ways, depending on the type

of potential property interests at issue. See id., 753. The

court stated: ‘‘Where [the majority] and the dissent [in

Bender] part company is over the appropriate reading

of our prior jurisprudence. We acknowledge . . . that

in some cases we have determined that certain interests

constituted property where there were enforceable contract rights therein, while in others we have determined

that certain interests were too speculative to constitute

property where there were no such rights. We do not

read those cases, however, as the dissent does, to mark

out a hard and fast line requiring such rights as the

sine qua non of ‘property’ under § 46b-81.’’ (Emphasis

added.) Id. The court ultimately concluded: ‘‘We believe

that any uncertainty regarding vesting is more appropriately handled in the valuation and distribution

stages, rather than in the classification stage.’’

(Emphasis added.) Id., 749–50. Moreover, this was not a

conclusion that necessarily could have been anticipated

because, although it did not entirely eliminate consideration of whether an interest constitutes distributable

property, it deemphasized the court’s prior focus on

that question and allowed consideration of the problem

of uncertainty in the context of valuation and distribution.14

The court similarly acknowledged in a subsequent

decision that, although its holding in Bender concerning

unvested pension benefits represented a natural progression and expansion of the law, it also broke new

ground. See Mickey v. Mickey, 292 Conn. 597, 625, 974

A.2d 641 (2009). In Mickey, we explained: ‘‘Our decision

in Bender . . . updated [the] traditional, fairly rigid

dichotomy by establishing a more nuanced approach

to defining property interests under § 46b-81. In Bender,

this court built [on the] foundation of our prior cases

in concluding that the unvested pension of the defendant in that case was property subject to equitable

distribution. . . . Consistent with our time-honored

approach, we reiterated that presently enforceable

rights, based on either property or contract principles,

are sufficient to cause property to be divisible. Where

Bender broke new ground was in its recognition that

such rights are not the sine qua non of property under

§ 46b-81. . . . In building on our prior cases, we
expanded our notion of property under § 46b-81, recognizing that there is a spectrum of interests that do

not fit comfortably into our traditional scheme and yet

should be available in equity for courts to distribute.’’

(Citations omitted; emphasis altered; internal quotation

marks omitted.)Id. The majority quotes selectively from

this passage to emphasize the portion that refers to the

evolution and general continuity of Connecticut law in

the area of marital property rights rather than the portion referring to the fact that Bender had recognized

a new category of property interests that ‘‘do not fit

comfortably into our traditional scheme . . . .’’ Id.; see

also Czarzasty v. Czarzasty, 101 Conn. App. 583, 594,

922 A.2d 272 (‘‘[T]he court [in Bender] seems to have

recast the analysis used to determine whether an interest or benefit is property under § 46b-81 to a more

probabilistic assessment untethered to the existence of

a presently existing enforceable right. Consequently,

since Bender, whether a party has a presently existing

enforceable right to the present or future receipt of the

asset appears no longer to be determinative. Instead,

the determination of whether a claimed asset is subject

to distribution pursuant to § 46b-81 appears to depend

on the degree of certainty revealed by the evidence that

the litigant will eventually receive the asset. In sum, in

accordance with the dictates of Bender, in confronting

property claims under § 46b-81, trial courts must make

an assessment on a case-by-case basis of the likelihood

of the person’s receiving the asset claimed by his or

her spouse. If the likelihood is not too speculative, then

it is property subject to valuation and distribution.’’

[Emphasis added.]), cert. denied, 284 Conn. 902, 931

A.2d 262 (2007). Thus, when the majority opines that

the court’s decision in Bender was predictable, or was

an incremental step that should have been anticipated

and reflected in the trial court’s decision in the present

case, it goes too far, and its conclusion is inconsistent

with the conclusion in Mickey that Bender ‘‘expanded

our notion of property under § 46b-81’’ in a way that

could not have been foreseen by creating an entirely

new category of inchoate interests available for consideration and possible distribution by Connecticut’s trial

courts. Mickey v. Mickey, supra, 625. More importantly,

the majority simply does not explain why the parties

were required to predict what the future law would be

and how this court would apply it in their particular

case.

D

The majority finally relies on §§ 46b-66, 46b-81, and

46b-82 in concluding that, ‘‘even when an item is determined to be nondistributable, its existence nevertheless

is a relevant consideration for a court adjudicating a

dissolution action when it assesses the fairness of a

settlement, distributes other property or fashions other

financial orders.’’ I agree with the majority that a party’s

disclosure of the opportunity to acquire future capital
assets and income under § 46b-81, which would have

included the defendant’s unvested pension benefit in

2001, generally is required so that the trial court can

perform its statutory duty under § 46b-66 of determining

whether a separation agreement is ‘‘fair and equitable

under all the circumstances.’’ General Statutes (Rev. to

2001) § 46b-66. There are several difficulties, however,

with applying this principle to the facts of the present case.

First, the trial court’s statutory duty under § 46b-66

was not the legal theory on which the plaintiff’s motion

to open was based. The two grounds on which her

motion was based were, first, that the defendant committed fraud by failing to disclose a benefit that was

distributable marital property, thus causing her to rely

to her detriment on a false representation of his assets

and, second, that the defendant’s alleged nondisclosure

of the benefit was in violation of paragraph 13.11 of the

parties’ separation agreement. As previously discussed,

the reason why the plaintiff relied on these grounds

was because they enabled her to ask for relief in the

form of the full value of the benefit, a lessened burden

of proof, and attorney’s fees and costs without

reopening the entire judgment, which would not have

been possible if she had based her motion on the ground

that the trial court was unable to perform its statutory

duty. The plaintiff thus vehemently objected to the trial

court’s determination in its first memorandum of decision that the defendant’s unvested pension benefit was

not a marital asset subject to distribution.

As evidence of her frustration, the plaintiff filed the

very next day a motion for reargument, reconsideration

and/or rehearing (motion for reconsideration) of the

trial court’s preliminary decision on the property issue.

In her motion, she argued in relevant part that the trial

court, in concluding that the unvested pension benefit

was not marital property, had ‘‘developed a new rule

that there was an obligation to disclose on financial

affidavits and/or during discovery, even ‘putative assets’

such as the [unvested pension benefit] . . . and that

the defendant’s failure to disclose that ‘putative asset’

. . . prevented the court from performing its judicial

function under § 46b-66 . . . thus exposing the judgment to being reopened if the nondisclosure was intentional and it would have affected the outcome of the

case.’’ (Emphasis added.) The plaintiff added that the

court was in effect stating that the nondisclosure of a

putative asset such as the defendant’s unvested pension

benefit ‘‘constituted a fraud upon the court, and the

opposing party,’’ and that the court’s decision was

improper because it represented ‘‘a departure from

prior judicial precedent of the Connecticut Supreme

Court interpreting § 46b-81 . . . .’’ These arguments

were clearly motivated by the plaintiff’s belief that the

only way she could obtain 100 percent of the defendant’s unvested pension benefit was to claim that the
benefit constituted property and that the defendant’s

alleged nondisclosure constituted both fraud and a violation of paragraph 13.11 of the parties’ separation

agreement, which, as previously noted, provides that

the full value of a property interest that has been intentionally misrepresented or concealed would be transferred to the nonconcealing party. In addition, because

the plaintiff strongly disagreed, during the hearing on

the motion for reconsideration, that the trial court

should consider the issue of its statutory duty under

§ 46b-66, the court’s ultimate conclusion that a decision

on the fairness of the separation agreement would not

have been affected by nondisclosure of the defendant’s

unvested pension benefit left her with no basis for an

appeal on statutory grounds. In other words, the trial

court’s conclusion that disclosure of the benefit would

not have affected its statutory duty was consistent with

the plaintiff’s claim in her motion for reconsideration

that this was an inappropriate ground on which to justify the hearing on that motion. The plaintiff was therefore not aggrieved by the trial court’s decision on the

issue of its statutory duty and cannot use it as a basis

for an appeal. See, e.g., Cruz v. Visual Perceptions,

LLC, 311 Conn. 93, 95 n.2, 84 A.3d 828 (2014) (aggrievement is essential prerequisite to appellate jurisdiction).

In addition to the fact that the trial court raised the

issue of its statutory duty under § 46b-66 sua sponte

and that the plaintiff is not aggrieved by the court’s

decision on that issue, the majority’s conclusion that

the judgment should be opened is undermined by the

court’s factual finding that the defendant disclosed the

benefit to the plaintiff. See part III of this opinion.

Accordingly, in light of the trial court’s finding and the

apparent lack of any contrary authority, the defendant

had no greater obligation than the plaintiff to disclose

the benefit to the court.

I finally note the well established principle that a

reviewing court may reframe a question raised on

appeal to more accurately reflect the issue presented.

See, e.g., State v. Thompson, 307 Conn. 567, 570 n.3, 57

A.3d 323 (2012). In the present case, however, the trial

court and the majority have changed the issue presented

in the plaintiff’s motion to open and have disregarded

the plaintiff’s theory of the case. Furthermore, the fraud

claim cannot remain in the case on the ground that

the defendant’s financial affidavit defrauded the court

because ‘‘the concept of fraud on the court [in the

marital litigation context] is properly limited to cases [in

which] both parties join to conceal material information

from the trial court.’’ (Emphasis added.) Billington v.

Billington, supra, 220 Conn. 222. I therefore disagree

with the majority that the trial court should have

granted the plaintiff’s motion to open the judgment

under the principles set forth in Billington, Thompson,

Bender, or the relevant statutes pertaining to the trial

court’s financial orders.
III

I next address the majority’s conclusions regarding

the fraud issue.15 In addition to the fact that the second

hearing on the motion to open was unnecessary following the trial court’s determination in the first hearing

that the defendant’s unvested pension benefit did not

constitute property, a continued hearing was improper

because all of the testimony and evidence offered at

the second hearing pertained to whether the defendant

had disclosed the benefit to the plaintiff, rather than

to whether he had disclosed the benefit to the court so

that it could perform its statutory duties under § 46b66. The majority nonetheless fails to acknowledge this

disconnect between the trial court’s conclusion in the

first hearing and the testimony and evidence in the

second hearing, which would have been relevant only

if the court had determined that the benefit constituted

property. The majority instead concludes that the trial

court abused its discretion during the second hearing

because it precluded relevant evidence regarding the

value of the benefit. The majority further concludes

that the trial court, in determining that the defendant

disclosed the benefit to the plaintiff, relied largely on

its assessment of the parties’ credibility, which could

have been affected by evidence of the benefit’s value.

The majority thus speculates that, ‘‘[i]f . . . the trial

court [had] determined, on the basis of a complete

evidentiary record, that the pension had considerable

worth . . . that determination could have severely

undermined the court’s finding that the plaintiff had

full knowledge of the pension, yet simply chose not to

pursue any interest in it or some alternative compensation for relinquishing any such interest. Similarly, a

finding of substantial value may well have changed the

trial court’s assessment of the defendant’s account of

full and frank disclosure to the plaintiff . . . .’’ (Citation omitted.) Text accompanying footnote 36 of the

majority opinion. The majority further claims that, if

the proffered testimony of the plaintiff’s expert on the

value ofthe unvested pension benefit had been admitted

and credited by the court, it might have treated the

benefit as distributable marital property, thus affecting

the financial orders and the outcome of the case. I

disagree.

‘‘Fraud consists in deception practiced in order to

induce another to part with property or surrender some

legal right, and which accomplishes the end designed.

. . . The elements of a fraud action are: (1) a false

representation was made as a statement of fact; (2) the

statement was untrue and known to be so by its maker;

(3) the statement was made with the intent of inducing

reliance thereon; and (4) the other party relied on the

statement to his detriment. . . . A marital judgment

based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud.
. . . A court’s determinations as to the elements of

fraud are findings of fact that we will not disturb unless

they are clearly erroneous. . . .

‘‘There are three limitations on a court’s ability to

grant relief from a dissolution judgment secured by

fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was

discovered; (2) there must be clear proof of the fraud;

and (3) there [must be] a substantial likelihood that

the result of the new trial will be different.’’ (Internal

quotation marks omitted.) Weinstein v. Weinstein,

supra, 275 Conn. 685.

The following additional facts are relevant to a resolution of this claim. At the conclusion of its memorandum

of decision on the property issue, the trial court ordered

the parties to attend a status conference so that the

remaining issues could be explored and a new date

could be set for a hearing to determine whether the

defendant’s alleged failure to disclose the unvested pension benefit ‘‘was fraudulent, wilful and without just

cause and, if so, whether or not the outcome of the

original judgment would have been materially changed

had the disclosures been made.’’

In preparation for the hearing, the defendant notified

the court in a disclosure statement dated October 15,

2008, that he would call Mark S. Campbell to testify as

an expert witness regarding the present value of the

unvested pension benefit on the date of dissolution. On

November 21, 2008, the plaintiff notified the court in

two disclosure statements that she also would call

Campbell, in addition to her own expert witness, William Miller, to testify regarding the present value of the

benefit. The plaintiff’s disclosure statement pertaining

to Campbell indicated that she agreed with his conclusion that the defendant had an interest in an unvested

pension benefit for which a present value could be

determined but that she rejected and disputed the discount rate Campbell had applied to calculate this value,

which he had determined was at least $17,000 on the

date of dissolution. More specifically, Campbell’s present value calculations assumed a discount rate equal

to the twenty year treasury bond rate as of the valuation

date, which was 6.04 percent per annum, plus a ‘‘[s]pecific qualitative risk’’ discount factor of 15 percent per

annum, for a total discount rate of 21.04 percent. The

15 percent discount rate was based on several factors

Campbell determined could have a potentially negative

effect on the present value calculation, including (1)

the unfunded nature of the pension plan,16 (2) the defendant’s unvested interest in the plan at the time of dissolution,17 (3) the contingent nature of the plan, which

depended on the defendant’s company continuing as a

going concern and maintaining its ability to fund the

plan from its current earnings, and (4) the ability of the

company to discontinue or otherwise alter the plan at
any time. In her disclosure statement pertaining to

Miller, the plaintiff indicated he would testify that the

present value of the benefit on the date of the dissolution was $1,079,451 under the ‘‘proper’’ discount rate,

assuming the defendant retired at the age of fifty-five.

Although Miller was expected to testify that Campbell’s

use of the 15 percent discount rate was ‘‘not appropriate,’’ and that he did not considerthe risks and uncertainties on which this discount rate was based in his

own present value calculation, Miller acknowledged

many of the same uncertainties identified by Campbell,

as well as several others. For example, Miller noted in

his report, which was attached as an exhibit to the

disclosure statement, that the pension plan was

unfunded and would be directly affected by the ongoing

financial health of the company, the defendant was

not eligible for any benefit payment on the date of

dissolution, the defendant would forfeit the benefit if

he terminated his employment with the company before

the early retirement age of fifty, and the present value

of the benefit could vary significantly depending on the

age at which the defendant retired. Miller nonetheless

indicated that, in calculating the present value of the

benefit, he did not take these uncertainties into account

but ‘‘based [his calculation on] the terms and conditions

of the plan . . . as set forth in the expanded retirement

benefit projection reports available to [the company]

. . . and the defendant’s dates of service, years of service as a partner and his earnings.’’ Miller also assumed

that the defendant would retire at the age of fifty-five,

thus allowing him to conclude that the present value

of the benefit was $1,079,451, which was 56 percent

higher than the benefit’s present value of $693,663 if

the defendant retired at the age of sixty, the normal

retirement age for company employees and the age

used in the company’s own formula for calculating the

value of employee benefits under its pension plan.18

On November 25, 2008, the trial court considered

whether to admit the proposed testimony and concluded that any evidence regarding value was ‘‘just not

relevant.’’ The court reiterated, upon further reflection,

that ‘‘the proffer of any evidence with regard to valuation, at this stage, would . . . not be material, [would

not] be relevant . . . .’’ The following day, when the

parties raised the matter again, the trial court repeated

that it did not believe the valuation testimony was relevant or material to the issue of fraud in the second

hearing. See footnote 21 of this opinion (further

explaining procedural history of proceedings on admission of expert testimony).

After the hearing, the trial court issued its second

memorandum of decision on the plaintiff’s motion to

reopen. The court concluded that the plaintiff had not

clearly proven fraud because either she or her attorney

had been apprised of the unvested pension benefit both

before and during the dissolution proceedings. In refer-
ring to the factual predicate for its conclusion, the trial

court explained as follows: ‘‘During [the second hearing], the court heard from the [defendant] regarding

his knowledge of the salient aspects of his [company],

including income and retirement. He testified that he

and [the plaintiff], a [certified public accountant] and

former [company] employee from 1984 through 1991,

frequently discussed these subjects. In particular, he

told the court that, although the general terms of the

[unvested pension benefit] were known to the [company] partners, they were not committed to writing

until 2002. In response to partner inquiries, a template

allowing the employee to input data, including salary

and longevity, was made available to the employees on

their work computers on or about April, 2000, which

allowed them to project an estimate of the future benefit. The [defendant] said that he did not access his computer at that time for that purpose.

‘‘Later, during the [dissolution] proceedings, he discussed this potential benefit with his attorney, and they

made an affirmative decision not to list the [unvested

pension benefit] on the financial affidavit, as it was not

funded, vested, or accrued at that time. Still later, he

testified that the [unvested pension benefit], along with

other topics, including the potential future sale of [the

consulting arm of the company], came up during a settlement conference at the office of the [plaintiff’s] attorney, Anthony Piazza, at which was also present the

[plaintiff’s] expert, Mark Harrison, who had been hired

to value the [defendant’s] benefits. The [defendant] has

consistently maintained this position throughout the

proceedings, and the court concluded that this position

was accepted by the [plaintiff] and those representing

her. The [defendant’s] counsel, Christopher Burdett,

confirmed his client’s account. The [plaintiff’s] attorney

did not deny that the meeting took place but denied

that the subject of the [unvested pension benefit] came

up at that time. . . . Harrison did not deny that he was

present at the meeting; however, [he] told the court

that, at that time, he was aware that [the company] had

[an unvested pension benefit], but he could not say for

sure . . . now eight years later . . . what the source

of his knowledge was, since he had also been hired as

an expert by another [company employee’s] spouse at

the same time. . . . [T]he [plaintiff] testified consistently that she had no knowledge of the [unvested pension benefit] up to that point. The [defendant] and his

counsel continued to take the position that the

[unvested pension benefit] was not an asset, and, therefore, they elected not to . . . note it [in] the [defendant’s] financial affidavit. . . .

‘‘The next disputed incident took place during final

negotiations at the courthouse on May 25, 2001, the day

setfortrial. Present were the [plaintiff],Attorney Piazza,

his associate, Laura Simmons, and . . . Harrison. The

[defendant] was there along with Attorney Burdett, as
well as a coworker, [Anthony] Artabane. The parties

and witnesses all agree that the negotiations took place

all day at the courthouse, culminating in an agreement

and a hearing before [the court] late in the afternoon,

at which time the court approved the agreement and

dissolved the marriage. It is also undisputed that some

clauses were reworked and typed at Attorney Piazza’s

office that same day, and that some changes were simply inserted by hand and initialed. From that point on,

the stories diverge. The [defendant] testified that the

subject of the [unvested pension benefit] came up during the day, in the absence of his attorney, during a

discussion between himself, [the plaintiff], and her

counsel, Attorneys Burdett and Simmons being at

[Attorney] Piazza’s office to have some changes to the

agreement typed. Again, the [plaintiff] and her attorney

dispute this claim. However, it is supported by . . .

Artabane, who was present in court that day and was

within earshot of that discussion. [Artabane] testified

that he joined that discussion to corroborate the position taken by the [defendant] regarding the [unvested

pension benefit]. One specific change to the agreement,

which the court found significant, was the insertion of

the word ‘vested’ in . . . paragraph 13.11 [of the separation agreement], which . . . called for penalties in

the event of a party’s failure to disclose a vested asset.

‘‘On balance, the court believes that the [defendant’s]

version of events is more credible. The court found

both parties to be intelligent and articulate, and the fact

that both are [certified public accountants] and familiar

with numbers and complex financial matters lends further credence to the [defendant’s] argument. Furthermore, the court does not believe that the subject of the

[unvested pension benefit] did not come up between

[the defendant] and [the plaintiff] at any time during

their marriage, in particular, within the context of the

salient aspects of the [defendant’s] partnership, including retirement benefits, or in the lengthy merger negotiations with [another company], and, in particular,

regarding the preservation of existing and potential

partner benefits, like the [unvested pension benefit].

Certainly, the aspirational expectations of both spouses

were shared from time to time during the marriage, if

only in the form of pillow talk. In point of fact, the

[plaintiff] herself told the court that, during their marriage, she and [the defendant] discussed four broad,

work-related subjects, to wit: (1) office politics; (2)

benefits; (3) finances and compensation; and (4) partnership. The court believes that the testimony and evidence supports a finding that the [plaintiff] knew about

the [unvested pension benefit] at the time of the dissolution of marriage in 2001 and that she now wishes to

change the bargain she reached with the advice of counsel and her expert.’’ (Emphasis omitted; internal quotation marks omitted.)

Thereafter, the trial court determined that the
unvested pension benefit did not constitute property

because of the reasons set forth in its earlier memorandum of decision. The court also explained that, in considering whether the separation agreement was fair and

equitable within the meaning of § 46b-66, ‘‘a court bases

its consideration offairness upon the financial affidavits

of the parties; that the better practice would be to call

the court’s attention to an item of potential financial

significance by way of a footnote on said affidavit; that,

under all the facts and circumstances, the [defendant’s]

failure to list [the] same on his financial affidavit was

not fraudulent, and, in any event, would not likely have

changed the outcome of the court’s finding of fairness.’’

The court further concluded ‘‘[t]hat the testimony and

evidence supports a finding that, while the [defendant]

did not disclose the existence of the [unvested pension

benefit] on his financial affidavit, at least as late as the

final negotiations that took place at the courthouse on

May 25, 2001, the [plaintiff] and her counsel knew about

the [unvested pension benefit], that the [defendant] did

disclose [the] same in the context of negotiations leading up to the execution of a written [separation] agreement, as evidenced in part by the written amendments

to said agreement, and that fact is amply supported by

the testimony of the [defendant] and his witnesses.’’

On the basis of these factual findings, the trial court

concluded that ‘‘[t]he [plaintiff] has failed to meet her

burden in that there was no clear proof of fraud; to the

contrary, the court found sufficient evidence to support

a finding that the existence of the [unvested pension

benefit] was disclosed to the [plaintiff] and her counsel

during the settlement negotiations and priorto the entry

of the decree.’’ The court further concluded that,

although ‘‘[i]n a matrimonial action, financial affidavits

play an important role, and there is a need for full and

fair disclosure . . . [u]nder all the facts and circumstances, there was insufficient evidence presented to

the court to demonstrate that, in the event of a new trial,

there was a likelihood of a different result.’’ (Citation

omitted.) I agree with the trial court’s conclusions

because they are based on factual findings, supported

by documentary and testimonial evidence from the

defendant and several other witnesses, that the defendant disclosed the unvested pension benefit to the plaintiff during the settlement negotiations.

Nevertheless, instead of addressing the trial court’s

findings and conclusions directly to determine whether

they were clearly erroneous;19 see, e.g., Nyenhuis v.

Metropolitan District Commission, 300 Conn. 708, 729,

22 A.3d 1181 (2011) (trial court’s findings of fact subject

to clearly erroneous standard of review); the majority

attempts to avoid this requirement by taking a more

circuitous path, claiming that the trial court abused

its discretion by improperly precluding the evidence

proffered by the plaintiff through her expert witness

concerning the value of the defendant’s unvested pen-
sion benefit. It is therefore necessary to consider the

law on evidence.

‘‘It is well settled that the trial court’s evidentiary

rulings are entitled to great deference. . . . The trial

court is given broad latitude in ruling on the admissibility of evidence, and [the reviewing court] will not disturb such a ruling unless it is shown that the ruling

amounted to an abuse of discretion. . . . [Thus, the

court’s]review of such rulings is limited to the questions

of whether the trial court correctly applied the law and

reasonably could have reached the conclusion that it

did. . . .

‘‘The law defining the relevance of evidence is also

well settled. Relevant evidence is evidence that has a

logical tendency to aid the trier in the determination

of an issue. . . . [E]vidence need not exclude all other

possibilities [to be relevant]; it is sufficient if it tends

to support the conclusion [for which it is offered], even

to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although

it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner

that it would be relevant, it is admissible. . . . Evidence is not rendered inadmissible because it is not

conclusive. All that is required is that the evidence tend

to support a relevant fact even to a slight degree, so long

as it is not prejudicial or merely cumulative.’’ (Citations

omitted; internal quotation marks omitted.) Jewett v.

Jewett, 265 Conn. 669, 679–80, 830 A.2d 193 (2003).

The majority claims that the trial court decided the

issue of fraud ‘‘largely on the basis of its assessment

of the parties’ credibility,’’ and that the expert testimony

concerning the value of the unvested pension benefit

was relevant to the trial court’s assessments of the

defendant’s credibility and to show that the outcome

of a new trial probably would have been different if the

testimony had been allowed.20 I disagree.

The majority considers and decides this issue

because it was raised by the plaintiff as a minor argument in her brief to this court. The record makes clear,

however, that the plaintiff did not offer the expert testimony of Campbell or Miller for the purpose of

impeaching the defendant’s testimony regarding his disclosure of the benefit to the plaintiff but, rather, to

provide substantive evidence of the benefit’s value in

support of her motion for reconsideration of the trial

court’s prior ruling that the benefit constituted property. The issue of the defendant’s credibility was never

raised in the disclosure statements, which were filed

several days before the trial court’s hearing on the matter, nor was it raised during the hearing itself. After the

trial court expressly concluded on two successive days

that experttestimony on the value ofthe pension benefit

was ‘‘not relevant’’ or material to the issue of fraud
because the benefit did not constitute property, neither

party made any further argument as to why the testimony should be heard. If the plaintiff had intended to

offer the testimony for the purpose of impeaching the

defendant’s credibility, she could have made that argument to the court. Because she failed to do so, the court

was unable to consider it.21 It is well established that

this court will not consider a claim not raised at trial.

See, e.g., River Bend Associates,Inc. v. Conservation &

Inland Wetlands Commission, 269 Conn. 57, 82, 848

A.2d 395 (2004). ‘‘[T]he standard for the preservation

of a claim alleging an improper evidentiary ruling . . .

is well settled. This court is not bound to consider

claims of law not made at the trial. . . . In order to

preserve an evidentiary ruling for review, trial counsel

must object properly. . . . In objecting to evidence,

counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature

of the objection and its real purpose, in order to form

an adequate basis for a reviewable ruling. . . . Once

counsel states the authority and ground of [the] objection, any appeal will be limited to the ground

asserted. . . .

‘‘These requirements are not simply formalities. They

serve to alert the trial court to potential error while

there is still time for the court to act. . . . Assigning

error to a court’s evidentiary rulings on the basis of

objections never raised at trial unfairly subjects the

court and the opposing party to trial by ambush.’’(Internal quotation marks omitted.) State v. Johnson, 289

Conn. 437, 460–61, 958 A.2d 713 (2008); see also Council

v. Commissioner of Correction, 286 Conn. 477, 498, 944

A.2d 340 (2008) (‘‘[A] party cannot present a case to

the trial court on one theory and then seek appellate

relief on a different one . . . . For this court to . . .

consider [a] claim on the basis of a specific legal ground

not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing

party.’’ [Internal quotation marks omitted.]). ‘‘Thus,

because the sina qua non of preservation is fair notice

to the trial court; see, e.g., State v. Ross, 269 Conn.

213, 335–36, 849 A.2d 648 (2004) (the essence of the

preservation requirement is that fair notice be given

to the trial court of the party’s view of the governing

law . . .); the determination of whether a claim has

been properly preserved will depend on a carefulreview

of the record to ascertain whether the claim on appeal

was articulated below with sufficient clarity to place

the trial court on reasonable notice of that very same

claim.’’ (Emphasis in original; internal quotation marks

omitted.) State v. Jorge P., 308 Conn. 740, 753–54, 66

A.3d 869 (2013). Accordingly, the plaintiff improperly

raised this unpreserved claim on appeal, and the majority has improperly decided it.22

Nevertheless, even if the expert testimony was relevant to the issue of the defendant’s credibility, the trial
court’s decision to exclude it was not harmful error.

‘‘The harmless error standard in a civil case is whether

the improper ruling would likely affect the result. . . .

In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion

is harmless.’’(Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007).

There is no support for the majority’s conclusion that

the expert testimony might have affected the outcome

of the hearing because the trial court did not decide

whether the defendant committed fraud ‘‘largely on the

basis of its assessment of the parties’ credibility,’’ and,

more particularly, the defendant’s credibility. The

defendant’s testimony that he had disclosed information to the plaintiff regarding the unvested pension benefit was only one of many factors, including the

plaintiff’s testimony, that the trial court considered in

concluding that the plaintiff or her attorney had knowledge of the benefit. Among these other factors were

(1) testimony by the defendant’s attorney that the benefit was mentioned during a predissolution settlement

conference at the office of the plaintiff’s attorney, (2)

testimony by one of the defendant’s coworkers that he

overheard a conversation between the defendant, the

plaintiff, and the plaintiff’s attorney during the final

settlement negotiations at the courthouse on the date of

dissolution, at which time the unvested pension benefit

was mentioned and that he joined in the discussion to

confirm the defendant’s position with respect to the

benefit, (3) insertion of the word ‘‘vested’’ by way of

a handwritten amendment to paragraph 13.11 of the

parties’ separation agreement, which pertained to the

penalties that would be imposed in the event that a party

failed to disclose a property interest, thus indicating an

explicit understanding by both the parties and their

attorneys that unvested pension benefits were not covered by the provision, (4) the formidable penalties set

forth in paragraph 13.11 of the separation agreement

for a party’s failure to disclose a vested benefit, (5)

the plaintiff’s testimony that she was a certified public

accountant and therefore familiar with numbers and

complex financial matters, and (6) the plaintiff’s testimony that, during their marriage, she discussed, inter

alia, benefits, finances, compensation and partnership

matters with the defendant. Moreover, given that the

defendant would have lost the entire value of the benefit

if he intentionally failed to disclose it to the plaintiff,

he had no incentive to hide it and every reason to

disclose it, a fact that was not likely to have eluded

the trial court. Accordingly, because a finding of fraud

requires ‘‘clear proof’’ of fraud, the defendant’s testimony was not dispositive but only one of many factors

that the court considered in reaching its conclusion

that the plaintiff had failed to meet her burden of proving that the defendant committed fraud.

For the foregoing reasons, I respectfully dissent from
parts I and II of the majority opinion.

1 The asset was known as the ‘‘PricewaterhouseCoopers Partners Retirement Plan.’’

2 The plaintiff filed her original motion to open on May 11, 2005. She

subsequently filed her request for permission to amend the motion and the

proposed amended motion on September 15, 2005. On November 14, 2008,

she filed a third and final amended motion in which she added allegations

relating to a small, but also allegedly undisclosed, retirement plan that had

not been referenced in her previous motions.

3 The term ‘‘resource’’ is used throughout this opinion to describe all

financial interests potentially subject to equitable distribution because that

is the term this court used in Krafick v. Krafick, 234 Conn. 783, 792, 663

A.2d 365 (1995), in discussing whether a vested benefit should be deemed

property subject to distribution under § 46b-81. A resource may or may not

be an asset or property, but only an asset or property is subject to equitable

distribution under § 46b-81.

4

In her final amended motion to open, the plaintiff modified the language

she used in her prior amended motion from claiming a right to ‘‘100 percent

of the asset’’ to claiming a right to ‘‘one half or 100 percent of the concealed

asset’’ because another provision in paragraph 13.11 ofthe parties’ separation

agreement provided for an equal division of the concealed asset if the

nondisclosure was not fraudulent.

5 The trial court acknowledged nine months later during a subsequent

hearing on the plaintiff’s amended motion to open that it was aware of, and

had followed, the ‘‘Krafick model’’ in its analysis of the property issue. The

court specifically noted that, because this court had not yet decided Bender

v. Bender, 258 Conn. 733, 785 A.2d 197 (2001), at the time of dissolution, it

had followed ‘‘the Krafick model . . . the three part model’’ in ruling on

the motion, which required an initial determination of whether the unvested

pension constituted distributable marital property.

6 The issue of the trial court’s ability to perform its statutory duty was

not raised by the plaintiff but, rather, was raised by the court sua sponte.

7 General Statutes (Rev. to 2001) § 46b-66 provides in relevant part: ‘‘In

any case under this chapter where the parties have submitted to the court

an agreement . . . concerning alimony or the disposition of property, the

court shall inquire into the financial resources and actual needs of the

spouses . . . in order to determine whether the agreement of the spouses

is fair and equitable under all the circumstances. . . .’’

Hereinafter, all references to § 46b-66 are to the 2001 revision.

8 General Statutes (Rev. to 2001) § 46b-81 provides in relevant part: ‘‘(a)

At the time of entering a decree annulling or dissolving a marriage or for

legal separation pursuant to a complaint . . . the Superior Court may assign

to either the husband or wife all or any part of the estate of the other. . . .

* * *

‘‘(c) In fixing the nature and value of the property, if any, to be assigned,

the court, after hearing the witnesses, if any, of 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 ofincome, vocational skills, 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.’’

Hereinafter, all references to § 46b-81 are to the 2001 revision.

9 General Statutes (Rev. to 2001) § 46b-82 provides in relevant part: ‘‘At

the time of entering the decree, the Superior Court may order either of the

parties to pay alimony to the other . . . . In determining whether alimony

shall be awarded, and the duration and amount of the award, the court . . .

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, vocational skills, employability,

estate and needs of each of the parties and the award, if any, which the

court may make pursuant to section 46b-81 . . . .’’

Hereinafter, all references to § 46b-82 are to the 2001 revision.

10 The underlying issue in Billington was ‘‘whether a party to a marital

dissolution judgment must establish, in order [to] subsequently . . . open

the judgment based upon a claim of fraud, that she was diligent during the

original action in attempting to discover the fraud.’’ Billington v. Billington,

supra, 220 Conn. 214. The alleged fraud in Billington was the defendant’s

failure to disclose information that would have resulted in a significantly
higher valuation of a piece of real property that he had listed on his financial

affidavit. Id., 214–15. The quoted passage was thus intended to emphasize

the parties’ obligation to provide accurate information in their financial

affidavits as a context for its subsequent discussion of the diligence issue.

See id., 219–20. At the time Billington was decided, this court had not yet

determined whether unvested property interests were too speculative to be

considered assets subject to distribution.

11 The majority’s conclusion that ‘‘Thompson still stands for the proposition that benefits that are not distributable property, for whatever reason,

may be taken into account by a court fashioning financial orders in a dissolution proceeding’’; footnote 20 of the majority opinion; is incorrect, and,

therefore, Thompson provides no support for the majority’s assertion that

there were unmistakable signs before the dissolution judgment in the present

case that this court would determine in Bender that unvested pension benefits constituted property.

12 In the first Krafick footnote, the court evaluated the effect of Thompson

on the issue of whether vested pension benefits constituted distributable

marital property and incorrectly observed that Thompson had ‘‘addressed

nonvested pension benefits and concluded only that such interests were

not too speculative to be taken into account in some fashion by the trial

court in crafting its financial orders in a dissolution action.’’ Krafick v.

Krafick, supra, 234 Conn. 794–95 n.20. In a second footnote, the court further

noted that its conclusion that vested pension benefits constituted property

was consistent with the conclusions of courts in other jurisdictions that

nonvested pensions constitute property. Id., 798–99 n.23. Only two months

before dissolution of the parties’ marriage, however, this court expressly

recognized that the court in Krafick had ‘‘left open the question of whether

nonvested pensions are distributable [marital assets]’’; (emphasis omitted)

Rosato v. Rosato, supra, 255 Conn. 422 n.16; which was consistent with an

even more explicit recognition by this court only one year earlier that

‘‘the marital estate divisible pursuant to § 46b-81 refers to interests already

acquired, not to expected or unvested interests . . . .’’ Smith v. Smith,

supra, 249 Conn. 274. Thus, insofar as the majority suggests that the case

law existing around the time of the parties’ divorce was ‘‘trending toward

a broader conception of what constituted distributable [marital] property’’;

footnote 24 of the majority opinion; see Lopiano v. Lopiano, supra, 247

Conn. 371; Bornemann v. Bornemann, supra, 245 Conn. 518; Krafick v.

Krafick, supra, 798; this court’s dicta in Rosato and Smith, which were

published only months before the dissolution judgment in the present case,

indicated the court’s intent to place limits on the concept of distributable

marital property and its recognition that the question of whether unvested

pension benefits constituted property had not been decided.

13 After discussing several recent decisions of this court, the court in

Bender stated: ‘‘These cases reflect a common theme, namely, that in

determining whether a certain interest is property subject to equitable distribution under § 46b-81, we look to whether a party’s expectation of a benefit

attached to that interest was too speculative to constitute divisible marital

property.’’ Bender v. Bender, supra, 258 Conn. 748.

14 I agree with the majority that the trial court in the present case improperly relied in part on my dissent in Bender; see Bender v. Bender, supra,

258 Conn. 764 (Zarella, J., dissenting); as a basis forits decision. The majority

correctly observes that my dissent was ‘‘not an authoritative ruling to be

applied by a lower court.’’ Footnote 29 of the majority opinion. Consequently,

to the extent that the trial court relied on my dissent in Bender, I reject

that portion of its analysis.

15 I readily agree that disclosure of an unvested pension benefit on a

financial affidavit is required after Bender because we determined in that

case that unvested pension benefits constitute property subject to equitable distribution.

16 Thus, the payment of pension benefits was subject to the general revenues of the defendant’s company.

17 As of the date of dissolution, the defendant was not eligible for the

pension benefit because he was only forty-five years old, and an early

retirement benefit was not available until a partner was at least fifty years

old. If the defendant had terminated his employment prior to the early

retirement age of fifty, he would have forfeited the benefit.

18 To the extent the majority refers to a present value of $3,839,117 in its

statement of facts and elsewhere in its opinion; see, e.g., footnote 32 of the

majority opinion; it is not relevant to the current analysis, and neither the

plaintiff nor the defendant suggests that this was the present value of the

pension. The $3.8 million valuation was contained in the company’s standard
projection report, was derived from certain default assumptions that were

not necessarily appropriate in the defendant’s case, and, as the majority

acknowledges, ‘‘[t]he projection report did not take into account the contingencies to which the defendant’s ultimate receipt of the pension was subject

. . . nor did it specify which portion of the present value was attributable

to services that were yet to be rendered, postdissolution.’’ Id.

19 The majority states that it does not consider whether the trial court’s

factual finding that the pension was disclosed was clearly erroneous because

‘‘the plaintiff has not made that argument . . . .’’ Footnote 38 of the majority

opinion. The majority, however, fails to understand the rules of practice

that legitimize such claims. Practice Book § 67-4 (d) provides that each

argument in the appellant’s brief ‘‘shall include a separate, brief statement

of the standard of review the appellant believes should be applied.’’ Practice

Book § 67-5 (d) similarly provides that each argument in the appellee’s brief

‘‘shall include a separate, brief statement of the standard of review the

appellee believes should be applied.’’ Thus, by requiring the parties to articulate the applicable standard of review, our rules of practice open the door

for disagreement and mandate a decision by the reviewing court explaining

its reasons for selecting the standard of review that it ultimately applies to

resolve the issue. Moreover, this has been the practice of Connecticut’s

reviewing courts for a very long time. See, e.g., State v. Coccomo, 302 Conn.

664, 671 and n.2, 31 A.3d 1012 (2011) (rejecting defendant’s argument that

standard of review should be de novo); Perez v. Minore, 147 Conn. App. 704,

709, 84 A.3d 460 (2014) (acknowledging plaintiffs’ argument that standard of

review should be plenary but agreeing with defendant that proper standard

of review was abuse of discretion); Brye v. State, 147 Conn. App. 173, 177,

81 A.3d 1198 (2013)(acknowledging state’s argument that standard ofreview

should be abuse of discretion but agreeing with plaintiff that proper standard

of review was plenary). Accordingly, given that the defendant in the present

case devoted four pages of his appellate brief to disputing the plaintiff’s

assertion that all of her claims of error were subject to plenary review and

contending that this court should review the trial court’s factual findings

to determine whetherthey were clearly erroneous, the majority must address

the defendant’s argument and explain why it is unpersuasive.

20 The majority specifically claims that, ‘‘[i]f . . . the trial court [had]

determined, on the basis of a complete evidentiary record, that the pension

had considerable worth . . . that determination could have severely undermined the court’s finding that the plaintiff had full knowledge of the pension,

yet simply chose not to pursue any interest in it or some alternative compensation for relinquishing any such interest. Similarly, a finding of substantial

value may well have changed the trial court’s assessment of the defendant’s

account of full and frank disclosure to the plaintiff, namely, disclosure not

only of the pension’s existence, but of all its salient features, including its

value.’’(Citation omitted; emphasis in original.) Text accompanying footnote

36 of the majority opinion.

21 The majority defends its conclusion that the expert testimony should

have been admitted on the ground that it was relevant to the trial court’s

determination of the defendant’s credibility, even though neither party raised

that claim, because ‘‘[t]he trial court . . . did not even wait for the plaintiff

to offer the evidence, or for the defendant to object to it, before ruling, sua

sponte, that no evidence of value would be admitted, although both parties

had prepared such evidence and intended to present it. In the highly unusual

circumstances of this case, [in which] the trial court imposed its own theoretical framework on the litigation, unexpectedly altered that framework midstream and, then, proactively ruled on evidentiary objections that had not

been made, we decline to penalize the plaintiff for not making a textbook

objection to the trial court’s sua sponte ruling. Because . . . valuation evidence clearly was relevant to both the elements of fraud and the factors

governing a motion to open on the basis of fraud, the trial court’s ruling

likely invoked confusion.’’(Emphasis in original.) Footnote 35 ofthe majority

opinion. In other words, the majority concludes that it may decide whether

the expert testimony was relevant on a ground that the parties never raised

because the trial court allegedly prevented them from fully explaining their

arguments or objections prior to its sua sponte ruling to exclude the testimony. The majority thus suggests that the plaintiff would have argued that

the testimony might have affected the trial court’s credibility determination

if she had been given the opportunity to present it. I strongly disagree with

this conclusion because it is based on mere speculation and a complete

misunderstanding of the record.

The trial court’s sua sponte ruling was not made before the parties

explained why they wanted to offer the expert testimony, the ruling did not
proactively cut off potential evidentiary objections by either party, and it

did not invoke confusion. Rather, the ruling came near the end of a series

of filings and discussions over the course of several weeks, during which

both parties had ample time to explain their views to the court regarding

why they believed the expert testimony was necessary. Accordingly, the

court’s sua sponte ruling, and its three other rulings relating to the proffered

testimony, were well understood and accepted by the parties.

The subject of expert testimony initially arose following the trial court’s

issuance of its memorandum of decision on June 10, 2008, in which it

concluded that the defendant’s unvested pension benefit did not constitute

property subject to distribution. At a July 3, 2008 hearing intended to clarify

the issues to be considered during the phase two hearing, on the issue of

fraud, the court stated that it did not know if expert witnesses would be

required but that, if the parties believed they were, the court would need

to hear why.

The subject next was raised on October 15, 2008, when the defendant

filed a notice disclosing his intention to call Campbell as an expert witness.

The defendant provided the plaintiff with a copy of Campbell’s report, which

contained information regarding the professional accounting standards in

effect at that time and an estimate of the present value of the defendant’s

unvested pension benefit as of the date of dissolution. On October 17, 2008,

the plaintiff filed a motion to preclude Campbell’s testimony on the ground

that she was prejudiced because the disclosure was late, and, therefore,

she would not have sufficient time to depose Campbell or retain her own

expert to evaluate Campbell’s report before the start of the phase two

hearing. She also argued that the defendant appeared to be trying to relitigate

the effect of the professional accounting standards on his obligation to

disclose the pension benefit to the plaintiff, an issue the court already had

decided during the phase one hearing, and that the defendant was attempting

to offer evidence on another subject the court also previously had decided,

namely, his legal obligation to disclose the benefit in his financial affidavits.

At a hearing on October 29, 2008, the trial court denied the motion. After

counsel explained the plaintiff’s reasons for seeking to preclude Campbell’s

testimony, the court determined that the testimony would be germane to

the financial orders and that the defendant should be allowed to present

it. The court also determined that Campbell should be allowed to testify

regarding the applicability of the professional accounting standards to the

defendant’s personal life, thus potentially shedding light on his state of mind

and his reasons for preparing the financial affidavits as he did.

On November 21, 2008, the plaintiff filed two notices with the court

disclosing her intention to call Campbell and Miller as expert witnesses in

her case. On November 24, 2008, she also filed a motion for reconsideration

of the trial court’s phase one ruling that the defendant’s unvested pension

benefit constituted property. The plaintiff argued that the fact that the

defendant, through Campbell, had ascribed a present value to his accrued

benefit at the time of dissolution was a significant new consideration that

the court should weigh along with a reexamination of its decision that the

benefit constituted property. The plaintiff’s counsel reiterated in a hearing

on the motion for reconsideration that, if the court had known that the

benefit had value, it might have decided the property issue differently. The

defendant’s counsel objected, arguing that it was too late to reconsider the

court’s phase one decision. The defendant’s counsel also noted that the

court had been apprised, before its phase one ruling, of the fact that the

pension benefit may have had value when the plaintiff’s expert, Miller, had

been allowed to testify that the benefit had an undiscounted present value

of $ 3.8 million and a discounted present value of $400,000. The defendant’s

counsel further challenged the plaintiff’s theory that ascribing a value to the

benefit meant that the benefit constituted property subject to distribution.

The hearing on the motion for reconsideration continued the following

day, at which time the defendant’s counsel again argued that the plaintiff’s

request forreconsideration of the trial court’s phase one ruling was improper

and that, contrary to the plaintiff’s claim, the fact that the benefit had value

did not mean that it constituted property. The defendant’s counsel thus

contended that, to reconsider and open the judgment under the second

prong of Krafick, which required the court to consider the value of the

benefit following a first prong determination that the benefit constituted

property, would not comply with the Krafick model. The plaintiff’s counsel

responded that there would have been no reason for the defendant to

offer evidence through Campbell of the benefit’s present value if it did not

constitute property.
The trial court then reflected that, from its perspective, the defendant’s

counsel had been arguing that Campbell’s testimony went to the defendant’s

mental state, apparently meaning Campbell’s expected testimony regarding

the applicability of the professional accounting standards to the defendant’s

personal life. Thus, to the extent the testimony was about the benefit’s

present value, such testimony was irrelevant. The trial court explained that,

after the decision in Bender, this court seemed to have no problem skipping

step one and going directly to step two of the Krafick analysis, on valuation,

thus ‘‘boot-strapping’’ the concept of property onto the concept of valuation

by concluding that ‘‘if there’s value, then it must be property.’’ The court

reminded the parties, however, that it was required to apply pre-Bender

law, and that, to be consistent with the line of pre-Bender authority, the

valuation of a benefit was not relevant to a determination of whether it

constituted property. The plaintiff’s counsel responded that he still had

to proffer the testimony of Miller, his expert witness, for the purpose of

establishing a proper record, and the trial court stated that it understood

the need to do so. After additional pondering regarding the effect of valuation

on the concept of property, the court stated: ‘‘So, from your standpoint,

[defense counsel], I would sua sponte rule that the proffer of any evidence

with regard to valuation, at this stage, would . . . not be material, [would

not] be relevant . . . .’’ The court added a few minutes later that it was

denying the plaintiff’s motion for reconsideration because it did not believe

that valuation played a role with respect to the unvested pension benefit.

The plaintiff’s attorney made no further comments regarding that ruling.

The next day’s hearing began with a statement by the plaintiff’s attorney,

who acknowledged the trial court’s ruling the previous day but sought to

make an offer of proof as to the testimony of Campbell and Miller to ‘‘protect

the record . . . .’’ He stated that the two expert witnesses, who were present

in the courtroom that day, were prepared to testify in accordance with the

disclosure statements he previously had filed with the court. The defendant’s

counsel moved to preclude the testimony based on the offer of proof because

the trial court’s ruling on the motion for reconsideration the preceding day

had made very clear that the court ‘‘would not consider evidence of value

at this stage of the phase two hearing, and, in accordance with [the court’s]

previous ruling, [the defendant’s counsel] would ask for a motion to preclude

both witnesses, and . . . that satisfies [the plaintiff’s counsel’s] need to

protect the record based on his offer.’’ The trial court responded that its

sua sponte ruling was intended to reverse its earlier ruling denying the

plaintiff’s motion to preclude Campbell’s testimony on behalf of the defendant. The court explained: ‘‘I have since had time to reflect upon this and,

in considering the evidence I have to date, and considering the case law as

I understand it, I don’t believe that valuation testimony is relevant or material

to the issue we have in this particular phase. So, for that reason, I am

precluding [Campbell, the defendant’s] witness. I indicated that I took it

upon my shoulders on [that] one. I indicated that was . . . sua sponte

. . . .’’ The defendant’s attorney then renewed his motion to preclude the

testimony of the plaintiff’s expert witness, Miller, based on the trial court’s

decision regarding the testimony of the defendant’s own expert witness,

Campbell. Although the trial court made no further ruling, the plaintiff’s

attorney indicated his acceptance of the court’s decision to preclude the

testimony, apparently by virtue of the court’s ruling on the motion for

reconsideration and its ruling on the defendant’s expert witness, and asked

that the disclosure offer function as the plaintiff’s proffer for purposes of

clarifying the record.

At no time during the six weeks that the parties and the trial court

discussed the issue of expert testimony did either party argue, or even

remotely suggest, that the testimony was proffered for the purpose of

assisting the court in making credibility determinations. Furthermore, none

of the trial court’s rulings precluded the plaintiff’s attorney from making

that argument. Accordingly, the majority’s conclusions with respect to this

matter are unsupported by the record.

22 Even if this claim had been properly preserved for impeachment purposes, Miller’s proffered testimony regarding the present value of the defendant’s unvested pension benefit on the date of dissolution was inadmissible.

Miller failed to consider the risk factors that Campbell had used to justify

a 15 percent discount rate in calculating the present value and that Miller

himself had identified in his report as risks but did not include in his

calculation. For example, Miller noted that the plan was unfunded, the

benefit was unvested on the date of dissolution, the benefit would be affected

by the defendant’s company’s financial health, and the defendant would
forfeit the benefit if he terminated his employment with the company before

the age of fifty. Despite acknowledging these uncertainties, however, Miller

treated the defendant’s unvested pension benefit for all intents and purposes

as vested, accrued, payable from a pension account with sufficient funding,

and without any cap, when in fact the benefit was wholly unfunded, only

partially accrued, to be paid out of future company earnings, and limited

by a cap based on those earnings. Accordingly, because Miller omitted from

his calculation any consideration whatsoever of the risks and uncertainties

that both he and Campbell had identified, his determination regarding the

benefit’s present value was grossly deficient and thus inadmissible, especially under Bender. See Bender v. Bender, supra, 258 Conn. 749–50 (uncertainties and contingencies to be considered in valuation of property

interests). Indeed, I find it highly ironic that Campbell conducted what

amounted to a Bender valuation of the defendant’s unvested pension plan,

whereas Miller conducted a valuation analysis completely inconsistent with

Bender because his calculation did not take into account the contingencies

that he had identified. I thus disagree with the majority’s claim that the trial

court would have accepted Miller’s calculation, would not have found the

separation agreement to be fair and equitable, and would not have found

the defendant’s testimony to be credible if Miller had been allowed to testify

that the unvested pension benefit had a present value of $1,079,451.

I add that, to the extent the majority claims that my critique of Miller’s

proposed testimony is unwarranted and that I am ‘‘essentially . . . finding

facts’’; footnote 37 of the majority opinion; it is the majority that raises the

issue of the validity and relevance of Miller’s testimony by declaring that,

‘‘[i]f . . . the trial court [had] determined, on the basis of a complete evidentiary record, that the pension had considerable worth . . . that determination could have severely undermined the court’s finding that the plaintiff

had full knowledge of the pension, yet simply chose not to pursue any

interest in it or some alternative compensation for relinquishing any such

interest. Similarly, a finding of substantial value may well have changed the

trial court’s assessment of the defendant’s account of full and frank disclosure to the plaintiff, namely, disclosure not only of the pension’s existence,

but of all its salient features, including its value.’’(Citation omitted; emphasis

in original.) Text accompanying footnote 36 of the majority opinion. Not

only does this passage clearly presume the validity of Miller’s calculations,

but it includes a citation to a prior footnote explaining that Miller would

have testified that the present value of the defendant’s unvested pension

benefit as of the date of dissolution was ‘‘in excess of $1 million.’’ Footnote

34 of the majority opinion. It is therefore the majority that makes an issue

of the validity and relevance of Miller’s testimony, to which I merely respond.