343 Conn. 786
Conn.2022Background:
- Parties divorced in 2009; their separation agreement (incorporated into the judgment) required the husband to pay 30% of his “gross annual base income from employment” and 25% of gross cash bonus as alimony.
- After the divorce the husband (Birkhold) later took a broker role (2015) at Cushman & Wakefield that paid annual draws on future commissions (initial draw $35,000, later much higher) and also earned consulting income; draws and consulting receipts were deposited into an LLC he controlled.
- When he began at Cushman & Wakefield he unilaterally reduced payments to $875/month (30% of the initial $35,000 draw) and continued that payment spite of later increases in draws and consulting income.
- The wife filed a postjudgment contempt motion seeking arrears; husband filed to modify his alimony obligation. After an evidentiary hearing the trial court found the draws and LLC deposits were income under the agreement, found the husband in contempt, awarded past-due alimony (stipulated arrearage $249,570) and attorney’s fees ($80,000), and modified future alimony to a flat $6,500/month with a “second look” at age 65.
- The husband appealed; the Connecticut Supreme Court affirmed the trial court in full.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cushman draws (advances/"draws" repayable if unearned) are income or loans | Draws are loans/advances subject to repayment and not "income actually received" until commissions are earned | Draws were paid as compensation from employment and treated/reported as income; not loans for alimony purposes | Court: draws are income under the agreement; factual finding that draws were income was not clearly erroneous |
| Whether payments deposited to plaintiff's LLC are his personal income | LLC receipts are corporate income, not income "received by" husband; business deductions apply | Husband used the LLC to shield personal earnings; receipts are effectively his income and can be treated as available for alimony | Court: LLC receipts attributable to husband; trial court’s fact-based inquiry supported treating them as his income |
| Whether trial court abused discretion in modifying future alimony to $6,500/month | Modification relied on past gross earnings and unsupported earning-capacity findings; sought net-income approach | Court considered §46b-82 factors, change of circumstances, earning capacity, relocation, remarriage and set a realistic net earning-capacity–based award with a second look | Court: modification was within discretion and supported by evidence (net earning capacity ~$250,000) |
| Whether contempt finding and attorney’s fees were proper | Husband acted on a good-faith reading and professional advice; not wilful noncompliance | Husband unilaterally reduced payments (self-help), conceded he paid no alimony on earned commissions; contempt standard met and fee-shifting provision applies | Court: contempt finding and fee award affirmed; ambiguity did not excuse unilateral nonpayment — party must seek court relief, not self-help |
Key Cases Cited
- Tuckman v. Tuckman, 308 Conn. 194 (Conn. 2013) (fact-specific inquiry whether corporate/S-corp earnings are available for support)
- Remillard v. Remillard, 297 Conn. 345 (Conn. 2010) (clearly erroneous standard for appellate review of trial court factual findings)
- Eldridge v. Eldridge, 244 Conn. 523 (Conn. 1998) (party must seek court modification rather than unilateral suspension; self-help can support contempt)
- Sablosky v. Sablosky, 258 Conn. 713 (Conn. 2001) (ambiguity in support orders requires judicial clarification; may not resort to self-help)
- Unkelbach v. McNary, 244 Conn. 350 (Conn. 1998) (broad approach to what counts as income in family law)
- Schmidt v. Schmidt, 180 Conn. 184 (Conn. 1980) (loan is not income for support purposes)
- Olson v. Mohammadu, 310 Conn. 665 (Conn. 2013) (moving party must show substantial change in circumstances to modify alimony)
- Puff v. Puff, 334 Conn. 341 (Conn. 2020) (contempt requires clear and unambiguous directive and wilful noncompliance)
- Zahringer v. Zahringer, 262 Conn. 360 (Conn. 2002) (characterization of receipts as income vs loan is a factual finding for the trial court)